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Burden of Proof

Attorney Geoffrey Fieger on the Nathaniel Abraham Sentencing; The 'Internet Intoxication' Defense;'Puffy' Combs Indicted on Weapons Charges

Aired January 14, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)

LISA HALUSHKA, ASSISTANT PROSECUTOR, OAKLAND COUNTY, MICHIGAN: I think that it's unfortunate that the judge sort of foreclosed an opportunity for himself, should Nathaniel not be rehabilitated in the juvenile system, to be able to respond more harshly if it's needed.

GEOFFREY FIEGER, ATTORNEY FOR NATHANIEL ABRAHAM: This child was a symbol for this prosecutor, a symbol that white America wants to attach to the so-called "predator youth," the young, poor, African- American male, so that they can fill up their youth prisons.

NICOLE GREENE, VICTIM'S SISTER: It don't matter Nathaniel was 11 at the time. He gunned down my brother. It don't matter. What matters is that he be punished for taking my brother's life for nothing at all.

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: The sentencing of 13-year-old Nathaniel Abraham. Did the people of the State of Michigan and a child murderer receive justice?

ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

COSSACK: Hello and welcome to BURDEN OF PROOF. Greta is off today.

Yesterday in Pontiac, Michigan, 13-year-old Nathaniel Abraham was sentenced to youth detention for a murder he committed at the age of 11.

Last November, he was convicted of second-degree murder for shooting a man outside a Pontiac convenience store. But in handing down the sentence, the judge raised questions about how the State of Michigan prosecutes juvenile cases.

(BEGIN VIDEO CLIP)

JUDGE EUGENE MOORE, OAKLAND CO., MICH. PROBATE CT.: Specifically, I urge the legislature to reconsider the statute in question and set a minimum age in which a child can be charged as an adult under the statute. Is 8 too young? What about 6? The legislature, not the prosecutor, not the judge, not the jury, should decide this. I urge the legislature to act now.

(END VIDEO CLIP)

COSSACK: And joining us today from Detroit, Michigan is Geoffrey Fieger, attorney for Nathaniel Abraham. And in Tampa, Florida, jury consultant Sandy Marks. And in Boston, former prosecutor and criminal justice expert Wendy Murphy. And also joining us here in Washington are Mark Whitfield (ph); former federal prosecutor, Solomon Wisenberg; and Joe Brenkle (ph). And in the back, Melanie Johnson (ph) and Jacob Matlin (ph).

Geoffrey, let's go right to you. Would you consider yesterday's decision a victory?

FIEGER: Only in the sense that the judge dealt with this child in terms of providing help, and not punishment. But going back to what the judge indicated, it is -- because this is such a political issue, and politicians cloy to the electorate and won't address the issues and address them in terrible ways, it's going to be necessary for the courts to step in and say: You may not try children 11 and under as adults. They don't have the ability to comprehend the witnesses against them, to assist in their own defense. There has to be some protection and you are very unlikely to get it in the legislature as a political move.

COSSACK: Geoffrey, the judge had his chance, I suppose, to sentence him in one of three ways, he could have sent him right to state prison, sentenced him as a juvenile, as he did, or this blended sentence that they were talking about.

FIEGER: Well, I don't know what they are talking about. I tried this case and I still can't figure out what they're talking about with that. There is no such thing in the statute. What the statute allows the judge to do is give the child an adult sentence, give him probation, and then also provide some therapy for them. This prosecutor keeps talking about a blended sentence, which is ridiculous.

COSSACK: All right, Geoff, step back for a second now, and recognizing that you were his attorney, the judge -- what the judge did in effect is guarantee the release of this young boy at 21. People will ask, why should he have done that? If the boy would have earned his release at 21, that would be fine. Why shouldn't the judge have put him in a position where, if he hasn't improved, he could still stay in prison. After all, he was convicted of a murder?

FIEGER: Well, first of all, you have to -- in order -- under our Constitution, people who ask that, don't understand that we have something called due process of law, and that you have a right to know what your sentence is so that you can appeal it, so that somebody knows what their sentenced to. It isn't Kafka, where if you don't do what we want you to do, sometime in the future we are going to sentence you to some more time but we are not going to tell what you it is. That would be blatantly unconstitutional. But more to the point, the purpose of juvenile justice is to provide help, not punishment. And where we have been backsliding, and apparently in response to some perceived threat of these youth predators, although violent crime among youth and adults has gone down, we are now in a retributive stage, a brutalization stage, if you will, a regressive stage where we think the thing to do is build more prisons at 10 times more the cost, put people in these prisons, and they come out 10 times worse.

Now I don't know how politicians have convinced the American public that that's a better idea, but it costs more out of the American public's public, and it ended up costing more in terms of the loss to us of our freedoms when these super predators come out of the prisons educated to be the best criminals who ever existed.

COSSACK: All right, Geoff, suppose that -- the sentence now is that your client will stay in prison until he is 21 years old.

FIEGER: No, no...

COSSACK: But I want to finish. The judge also has the ability to review his sentence every six months.

FIEGER: That's right.

COSSACK: Suppose the judge decides in three or four years that Nathaniel Abraham has been rehabilitated, can he let him out?

FIEGER: Of course, and he should too. This child has been held in a prison for the last 2 1/2 years, in virtual solitary confinement, unheard of, while the prosecutor has been going up to the court of appeals on appellate after appellate issue and then trying this child.

This child could have gotten 2 1/2 years of help right now. If 2 1/2 years ago this prosecutor had simply followed the juvenile proceedings law, this child would be involved in 2 1/2 years of therapy, and the people of the State of Michigan would have saved millions and millions of dollars. This is a horrendous case.

The rest of the world looks at us in disbelief that we are doing this to 11-year-olds. Americans have gone absolutely crazy. We allow people to own assault weapons and then we build more prisons to put the people who use those assault weapons in our prison, and say that it's not the guns, it's the kids -- you know that euphemism -- well, it's not the guns, it's the people who use them. Now it's not the guns, it's the kids; right?

COSSACK: Geoffrey, the judge said that, in fact, the legislature should set an age limit for what age children could be prosecuted as adults or as children.

FIEGER: Right.

COSSACK: And that this decision should not be left to the prosecutor?

FIEGER: No.

COSSACK: What age should it be set, Geoffrey?

FIEGER: An age old enough so that whatever age you are, you can assist in your own defense. At age 11, a full one-third of your brain has not formed within your cranium. That means two-thirds of your brain is only there. 11-year-olds have no ability to understand and participate in their own defense.

On a constitutional basis, if the legislature doesn't protect the kids, the courts are going to have to. Because under this law, Roger, you can charge a 1-year-old as an adult and put a 1-year-old in prison. There is no restriction.

If you want to say courts are compelled to blindly follow the law, if the prosecutor in Oakland County had charged a 1-year-old, and a jury, which juries are capable of doing, convicted them, they could go to prison as a 1-year-old.

COSSACK: What kind of precedent value does this case have, if any, Geoff?

FIEGER: That more than Geoff Fieger stood up and said these type of laws are draconian, regressive, and brutal and need to be addressed. This isn't the way to address these problems.

And another thing, it stands -- this would not have happened had this child been a white, upper-middle class or upper-class child from Northern Oakland County instead of a poor black child from the poorest section of Oakland County. They would never have done it.

COSSACK: Well, Geoff, we have seen time and time again, unfortunately, young white kids going into schools across this country who certainly have been charged as adults for committing murders.

FIEGER: Yes, they are not 11 years old.

COSSACK: Well, they were 14 years old.

FIEGER: This child didn't shoot anybody down. This child was an 11-year-old, mentally retarded, age of 6 mentally, who was playing with a gun from 100 yards away in a field.

COSSACK: Geoff, the jury rejected that argument.

FIEGER: No, they didn't.

COSSACK: The jury rejected that argument, they found him guilty of second-degree murder.

FIEGER: Yeah, that may very well be, well, they said that was a reckless use of a gun knowingly endangering somebody. But the fact of the matter is, is the jury had also been conditioned for 2 1/2 years by the Oakland County prosecutor said: This was the worst of the worst kids, a predator, 22 prior contacts, when he had never been arrested before. COSSACK: Geoffrey, we have a short time left, I want to ask you this. There was an inconsistent verdict that came down. They found your client guilty of second-degree murder, but yet they found him not guilty of using a dangerous firearm. Do you intend to appeal that?

FIEGER: Yes, probably I probably won't be successful on that basis. They also found him not guilty of assault with intent to commit murder. This is a product of fear, of a jury sitting there saying: If we don't do something, this child will come and get us because the prosecutor made them feel as if that was what was going to happen. And believe me, in Oakland County, with a little black kid charged with murder, that's the way the whites feel.

COSSACK: All right, thanks, Geoffrey Fieger, for joining us today from Detroit.

When we come back, we're going to change our focus to the trial of an 18-year-old accused of sending an e-mail threat to a Columbine High School student in what the defense describes as, quote, "Internet intoxication." Stay with us.

(BEGIN LEGAL BRIEF)

Prosecutors in Boulder, Colorado, will meet with forensic expert Dr. Henry Lee later this month. It will be their first meeting since the grand jury investigation into the death of JonBenet Ramsey ended without indictments.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the Worldwide Web. Just log on to www.CNN.com and click your way to the BURDEN OF PROOF LINK. We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern Time. If you miss that live show, the program is available on the site at any time via Video On-Demand.

Tuesday in Denver, a Florida teenager pleaded innocent to making an online threat against a Columbine High School student. The lawyer for 18-year-old Michael Ian Campbell, who used the name Soup81 on the Internet, says the defendant suffers from, quote, "Internet intoxication." Now, the same attorney used a similar defense in a Miami beach murder case more than two decades ago for what he called "television intoxication."

All right, Wendy Murphy, I'm going to put you as the defense lawyer in this case. Obviously, lawyers don't make the facts; they get stuck with the facts. Why would -- if you get a case like this, we know that this lawyer is calling it "Internet intoxication," why would a name like that be used, and how do you go about defending someone like this?

WENDY MURPHY, CRIMINAL JUSTICE EXPERT: Well, Roger as you put it, the lawyers don't have control over the cards they're dealt, and when you get lemons you've got to try to make lemonade. One of the most creative ideas defense lawyers talk about today, particularly in a case like this, is the fear that the public and thus the jury might have about the Internet and what it's doing to us. We've seen lots of stories about people becoming addicted to the Internet, it's breaking up marriages, we know that scary things are happening on the Internet, it's out of control, there's very little regulation, so you want to think about a defense that you might be able to make work with a jury who still has lots of fears and concerns about the power of the Internet over the ability for people to think straight, and particularly when you're talking about a child.

And I think it's a stretch, frankly, but with the right jury, the defense in this case may well be able to tap into the mind-set of the county, which is, what's going on with this Internet, it's so much further ahead than we can manage, to control in a regulatory sense, and it's just -- it scares us on so many levels. It may well tap into a visceral feeling in the right jury.

COSSACK: All right, Sol, you're the prosecutor. Wendy says she's going to put this Internet on trial. You take a look around, and you have a young defendant who sent a threat over the Internet, not face-to-face. Are you a little worried about this?

SOLOMON WISENBERG, FORMER FEDERAL PROSECUTOR: No, particularly not if I'm in the Colorado area and I'm prosecuting it.

(LAUGHTER)

But you've always got to worry about that kind of a defense. When all the facts and the law seem to be against the defendant, you anticipate that the defense attorney is going to come up with a wacky theory like this, which I presume is wacky, and you simply want to find a jury that is willing to follow the law, and you start stressing that in the voir dire, what we call the voir dire in Texas, you start stressing: We want you to follow the law, it's your duty to follow the law, will you have any problem if you get on the jury in following the law. You know, if there's a problem and we need to have a new law, it's Congress' job to challenge the law, it's the jury's job to follow the law, you're going to take an oath to follow the law. You just want to focus on that and get that.

But if I could say something, I'm not sure, from what I've seen, that it's really wise to take this particular defendant to trial, and of course Mr. Rubin, who's defending him, can always change the plea. I haven't had a chance to look at the guideline range, but Roger, as you know, this is a federal...

COSSACK: This is a five-year-maximum sentence.

WISENBERG: It's a five-year maximum sentence, but that means nothing, because...

COSSACK: Well, maybe in Columbine it might mean five years.

Let's talk to -- let's talk to Sandy Marks our jury expert. Sandy, you just got a call from Wendy and she says, listen, I've got to sell "Internet intoxication," help me on this. What are we looking for?

SANDY MARKS, JURY CONSULTANT: Well, I think the first thing we do is not use those words "Internet intoxication." I think one of the things that defense lawyers run into here, and, you know, I do a lot of defense work, are these creative defenses, and just the mere phrase "Internet intoxication," whether it's that or "television intoxication" or these other ones that have been used in the past, you know, I think there's a lot more going on here with this young man than "Internet intoxication." And...

COSSACK: So what are you looking for on that jury? Are you looking for men, are you looking for women, are you looking for young people who know about the Internet?

MARKS: I'm looking for people who -- and parents, whether they're parents or whether they're -- they're students, but certainly people who are familiar with the Internet and understand that, you know, you can get on the Internet and become so absorbed in the Internet that this fantasy mind of yours starts to take over, because who you are no one really knows. And you can do things on the Internet without having to be able to confront people face-to-face.

COSSACK: All right, Sol, now we have people on that -- we see Sandy trying to pick people on that jury who may understand the lure of the Internet. What are you going to do about it?

WISENBERG: I'm going to do the same thing I talked about earlier. You're going to -- you don't want to get into the trap of trying to respond directly to a novel defense theory, unless -- unless the defense attorney appears to be remarkably successful in it. By- and-large, you don't want to fall into that trap, because then you're playing his game. You want to project yourself as the servant of the people who's following the law, and: Ladies and gentlemen, that guy knows the law and the facts are against him, so he's trying to come up with any theory he can. Ladies and gentlemen, the law is against you. Argue the facts.

COSSACK: Sounds like that closing argument already. Let's take a break.

Up next, he's known by his hip-hop fans as "Puff Daddy," but Sean Combs is in legal hot water, and he's compiling a dream team defense to get him out of it. Stay with us.

(COMMERCIAL BREAK)

(BEGIN Q&A)

Q: What two major events in the Clinton-Lewinsky scandal happened on this date in 1998 and 1999?

A: January 14, 1998: Monica Lewinsky gave Linda Tripp the infamous "talking points" memo. January 14, 1999: House managers began to present their case against the president.

(END Q&A)

(COMMERCIAL BREAK)

COSSACK: Yesterday in New York, a grand jury indicted Sean "Puffy" Combs on two counts of criminal possession of a weapon stemming from a shooting at a Times Square nightclub last month. Now, Combs was pulled over after fleeing the crime scene, and when police found a stolen semiautomatic handgun on the floor of the car, and another stolen weapon was allegedly thrown from the vehicle on 8 Avenue.

Wendy, apparently, the defense in this case is going to be: It was not me, and there was somebody else's gun. But, in fact, allegedly, the evidence is that a gun was found in his car and there is a witness who said that a gun was tossed from his car while they saw it driving away. It wasn't me defense, how do you handle that one?

MURPHY: Well, in a sense, this is a slightly easier case to defend because "Puffy" Combs has the great advantage of celebrity status, and we know that celebrities have a high degree of credibility as long as you can pick the right jury. Juries love celebrities, and they like to believe that they are incapable of doing horrible things. So that is a great advantage that he has.

I think the other important issue in this case is that the person who will probably be the prime witness against "Puffy" is a guy who "Puffy" will argue has an incentive to lie, and there have been civil lawsuits filed already against "Puffy" combs, he can argue this is all part of an effort to extort him because he's wealthy and famous, and that is a very palatable defense in a case like this.

COSSACK: All right, Sol, you have a celebrity in New York -- a famous celebrity in New York -- what do you do?

WISENBERG: Well, you do a variant of the same thing I talked about earlier. You always want to present yourself as the enforcer of the impartial law. But Wendy is right, it's much more difficult. It is also more difficult because of the racial situation.

The fact of the matter is, if you talk to people who are career prosecutors in Manhattan, racial jury nullification does happen. It happens in Washington, D.C., too. So that is something you have to factor in. Johnnie Cochran is one of the defense attorneys, he used the race card in the O.J. Simpson case. So it is going to be much more difficult.

One thing that it appears they have in their favor, the prosecutors here, is you have got two different sets of witnesses, you've got at least one witness within the nightclub apparently, and you have got the driver of the vehicle.

COSSACK: All right, Sandy.

MARKS: Yes, sir.

COSSACK: You have got to pick a jury in this case now. Who are you looking for? You have a celebrity and you are in New York.

MARKS: Well, you know, I've done some jury work in New York, and they're really not so African-American based. They are fairly white juries in New York and they are very affluent, more now than ever before. And I think they are, certainly, the kind of jury that, as Wendy was mentioning, he's got celebrity status, there is conflicting stories here, there's motivation for witnesses to lie and make-up stories. I think picking a jury in this case with Johnnie Cochran and Ben Bronfman (ph) is much easier than Ellis Ruben (ph) has.

COSSACK: But who are you looking to be on that jury? Are you looking for African-Americans? Do you want white, affluent people? Who do you want?

MARKS: I, certainly, I would take some African-Americans on there. There is no question. But I would take people who are enamored by celebrity status. We all know that there are people who want that their 10, 15 minutes of fame, and they're going to get on a jury, and I think they're going to do the right thing for a guy like "Puffy" Combs, who's going to fill this courtroom by the way with celebrities.

COSSACK: But aren't you concerned that -- Wendy, go ahead.

MURPHY: Roger, I was just going to say, you know, the race issue is such a sensitive one because there were many people who believe that Johnnie Cochran did the wrong thing, that he played the race card from the bottom of the pile. I mean, Bob Shapiro was critical of the decision to misuse race and to really set back race relations in this country by playing a card that had no place in the trial.

I'm not sure I've heard yet a valid claim that a defense in this case could be based on his race. I mean, it's always a card that's out there, whenever it's the government against an African-American, but that doesn't make it right.

I'm just not an adherent to the concept of defense at any cost, and I don't think that it's right to play the race card just because you can if, in fact, it doesn't happen a place at the trial.

MARKS: I don't think this is a race defense case.

COSSACK: I'm going have to stop you all. Sandy, I got to stop you all right now because that's all the time we have for today. It went really fast. Thanks to our guests and thank you for watching.

Today on "TALKBACK LIVE": Find out what role the White House is playing in Hollywood's depiction of drugs in America. That is at 3:00 p.m. Eastern time, noon Pacific.

And we'll be back Monday with another edition of BURDEN OF PROOF. And we'll see you then.

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