2016 Race: A Criminal Act?
SMERCONISH: Donald Trump's campaign manager Corey Lewandowski is facing a misdemeanor battery charge in Florida, and by now, everybody has seen the video of the incident of Lewandowski grabbing reporter Michelle Fields as she tried to ask Mr. Trump a question. Still, the tape has become a Republican Rorschach test. People see in it what they want to see. But how is it going to play in court? And how might the actions be defended? Joining me now, two sharp legal minds, criminal defense attorneys Mark O'Mara and Danny Cevallos. Hey, Danny, I want to</s>DANNY CEVALLOS, CRIMINAL DEFENSE ATTORNEY/CNN LEGAL ANALYST: OK, remember, Michael, we're looking for an intentional, part one, part two is the touching, and part three, that it was nonconsensual. There you go, you see her jerk back. You don't see his hand -- at least I don't see his hand on her body, but one might reasonably infer that she was grabbed because she suddenly jerks back. But under the statute and in most states, the standard for criminal battery, simple assault, whatever it's called in your particular state, is a very low threshold. You need that intentional, the touching and the absence of consent. That's the black letter law, Michael. Now, let's take a step into the practical world of criminal defense. Would most police detectives in your town be interested or prosecutors be interested in wasting judicial resources on a case like this? It really depends on the individual law enforcement unit.</s>SMERCONISH: Well, Mark O'Mara, I hear , Danny, say that intentional is a required element here. What's the alternative, that he instinctively or reflexively had that kind of reaction?</s>MARK O'MARA, CRIMINAL DEFENSE ATTORNEY/CNN LEGAL ANALYST: Well, it's not just the intentional act itself, he obviously touched her on the arm. What we have to look at is what's called in our business the mens rea. What is the criminal intent? So, when I push past you to get on a subway car, that is not a crime under any set of circumstances. So, what he's going to say, what I would say as the criminal defense attorney was, look, I was reacting to the moment. It was a reporter who was trying to say something to my candidate, and my boss who we were trying to get out of there. No intent, no criminal intent towards her. As a matter of fact, if you look at his face right afterwards, look at the second, half a second after the supposed battery and there's no anger, there's no animosity. There's no scowl. He's literally moved her out of the way and moved on in what he was doing, trying to get Mr. Trump out of there. This would never be prosecuted if this was on a subway platform or at a baseball game. It's only a focus of attention because of the absurdity of what we're in with the political scene today.</s>SMERCONISH: OK. But wait a minute, you guys are so good, it's why I carry each of your phone numbers in my wallet in case I ever get jammed up. But, Danny, isn't the response from the prosecution going to be, take a look several frames thereafter where Mr. Lewandowski continues walking and catches up to Donald Trump. If he really believed that she was a threat, he would have stayed and neutralized that threat. Isn't that going to harm him?</s>CEVALLOS: I'm going to put on my defense hat for a second and the way that I anticipate them defending this is using something the great Mark O'Mara is very familiar with, is Florida law on defense, self- defense and defense of others. And it only requires that you reasonably perceive some application of force and that you used the amount of force reasonably necessary. In essence, you're meeting force with commensurate force. You never want to answer somebody's fist with a howitzer or a bazooka. So, the idea is if he perceives her about to touch Mr. Trump, then perhaps Lewandowski saw himself as using reasonable force to counter the perceived force. That may be what we see in terms of self-defense or defense of others.</s>SMERCONISH: Mark O'Mara, do you agree there's a Zimmermann aspect of this incident?</s>O'MARA: Here's the problem with that. If you're going to use self- defense and defense of others, you have to acknowledge the act, and the intentionality of the act. So, Lewandowski would have to go in and say, oh, I absolutely did that. I grabbed her by the arm and threw her out of the way, did whatever I needed to do because I was defending Mr. Trump. Very dangerous ground to be on. I think I would sit back and say, look, this is a virtual scrum in this arena. This is what we do. We're trying to get Trump out of there. She's throwing out another question like everybody else does, and I wanted to get her out of the way, get Mr. Trump out of the venue. I would sit back and focus on the lack of criminal intent to begin with and simply saying, this is the way things happen in this scrum that exist in our political arena.</s>SMERCONISH: Hey, Danny, what I'm hearing Mark say I think is that context matters. I've heard him make repeated reference to where this happens and the raucous nature of these events. I want to ask you a practical question. If Lewandowski, when it was all said and done, whatever it was, apologize and took ownership of it, would we be having this conversation now?</s>CEVALLOS: Maybe. That depends on this individual reporter and how she perceived the interaction and maybe it's a broader political question, which is a little beyond my personal pay grade. But in a case like this, you know, look, the way we write our criminal statutes in the states, we have such low thresholds. And Florida's a fantastic example. All you need is intentional, the touching and absence of consent. Florida courts have specifically said, you do not need injury, you do not need harm. One case I read involved a student throwing ravioli at another student and it caused no harm. But yet, that contact, that intentional contact without consent, was enough under the law.</s>SMERCONISH: Lewandowski right now wondering, which one should I call, O'Mara or Cevallos? Thank you, guys.</s>CEVALLOS: Call O'Mara.</s>SMERCONISH: I appreciate you being here.</s>O'MARA: Thanks, Dan.</s>SMERCONISH: Up next, I'm going to talk -- this is not a laughing matter. I'm going to talk to the mayor of a small city hard hit by heroin and a controversial plan to keep addicts alive by allowing them to bring their drug use out into the open. And more tweets @Smerconish like this one.