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Burden of Proof

Investigators Search for Survivors, Answers in the Crash of Alaska Airlines Flight 261; How Campaign 2000 Will Reshape the U.S. Supreme Court

Aired February 1, 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)

JACK EVANS, ALASKA AIRLINES SPOKESMAN: Alaska Airlines Flight 261 from Puerto Vallarta to San Francisco went down in the water late this afternoon, approximately 20 miles off Point Mugu, California.

JOHN HAMMERSCHMIDT, NTSB: It goes without saying that to all those who have been affected by this accident, from the NTSB, our thoughts and prayers are with you. It's a very tragic accident, and we will be proceeding with the formal investigation as the day progresses.

VICE ADM. TOM COLLINS, U.S. COAST GUARD: We have, in fact, heard pinging. That was the result of efforts from the underwater demolition team from the United States Navy here in Port Hueneme -- have located pinging. Now whether that's from one box or two black boxes is unknown at this time, but we have a position located.

(END VIDEO CLIP)

GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: Investigators search for survivors, debris and answers in a plane crash off the coast of California. What caused the crash of Alaska Airlines Flight 261?

Plus, New Hampshire voters take to the polls and cast their early selections in the first primary for the next president of the United States. How will campaign 2000 reshape the U.S. Supreme Court?

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

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. I'm in New Hampshire today, the site of today's presidential primaries. But campaign 2000 is sharing the headlines with a tragic accident off the coast of California.

ROGER COSSACK, CO-HOST: Late yesterday, an Alaska Airlines jet carrying 88 people plunged into the Pacific Ocean. The NTSB has commandeered an extensive search-and-recovery effort for the MD-83 jetliner, which crashed about 40 miles northwest of Los Angeles.

At a news briefing this morning, investigators held hope for the search for the survivors.

(BEGIN VIDEO CLIP)

COLLINS: This is still a search for human lives. The decision to stop searching is mine, mine to make, and it is a difficult one. Our plans today are to continue to search and coordinate all of the efforts of the agencies involved in the search effort.

(END VIDEO CLIP)

COSSACK: Joining us today here in Washington is former NTSB board member Lee Dickinson.

VAN SUSTEREN: Also joining us from Los Angeles is CNN correspondent Greg LaMotte.

Greg, what is the status on finding that pinging? Are they any closer to identifying exactly where that black box is?

GREG LAMOTTE, CNN CORRESPONDENT: Well, all they've told us is that they have heard pings from the so-called black box, the flight data recorder, and operations are under way in an effort to try to retrieve it.

Here's what we know: Several hours in 55-degree water is enough to kill anyone. The crash of Alaskan Airlines Flight 261 occurred some 17 hours ago. Nevertheless, the search-and-rescue operations are under way by the U.S. Navy, the U.S. Coast Guard and private personnel.

Pings have been heard from that so-called "black box" and, as I said, efforts are under way to try to retrieve it. So far, plane wreckage and personal items have been recovered, including a shoe and a stuffed animal.

There were 88 people aboard, including five crew members. They were heading from Puerto Vallarta, Mexico to San Francisco. The pilot radioed that he was having trouble with the horizontal stabilizer. Permission was given for an emergency landing at Los Angeles International Airport, but moments later, the plane suddenly plunged 17,000 feet and apparently nose-dived into the Pacific.

This is Alaskan Airlines worst and only fatal accident in some 25 years. Several hundred personnel are involved in the search-and- rescue effort. As we understand it, however, some point today, probably late this afternoon, it will be downgraded to a wreckage retrieval operation. There will be news conferences throughout the day to get us updated.

COSSACK: Greg, is there any chance or is there any, so far, any discussion about bringing in any divers?

LAMOTTE: Earlier this morning we asked if divers had gone into the water. No, they had not. And there was no indication that divers would necessarily be going into the water today, unless they got a firm source on that pinging noise that they had heard overnight. VAN SUSTEREN: Greg, obviously, the suspicion right now is cast on that horizontal stabilizer. But are there any other theories that are being considered right now, although I'm very well aware this is very early in the investigation?

LAMOTTE: Well, we're not privy to what the National Transportation Safety Board is investigating. They made that quite clear this morning. But the only thing we have to go on are the facts, and the facts, as they stand today, are the fact that the pilot radioed saying he was having trouble with that stabilizer and wanted to engage in an emergency landing at Los Angeles International Airport, which he never made.

COSSACK: Lee Dickinson joins us.

Lee, the report is that there was a problem with the tail stabilizer. Now, also, the report is that this plane had just undergone regular maintenance. Would that tail stabilizer have been looked at?

LEE DICKINSON, FMR. NTSB OFFICIAL: That depends, Roger. My understanding is, the day before yesterday, there was some service maintenance work done on this aircraft, this MD-83. It had an A-check about two weeks ago on January 11, and had what's known as a more rigorous C-check just about a year ago in January of 1999.

Typically, what happens before each flight anyway, the crew, the first officer mainly walks around the aircraft to check to make sure that things, at least externally, are looking OK, and hopefully functioning properly. That is an area that the Safety Board will be looking at, in terms of maintenance records, in terms of service, airworthiness, directives and the like to see exactly what type of maintenance was conducted on this aircraft.

COSSACK: Lee, in terms of -- actually to maintain that stabilizer, that tail, what exactly do they do? and how does exactly does that particular piece work?

DICKINSON: There are two things you need to be concerned about or aware of, Roger, and that is: The horizontal stabilizer, itself, this is MD-80, MD-83, it is what is known as a T-section. Basically, the horizontal stabilizer is the top portion of the T. In other words, my hand here would be the horizontal portion, and that is, indeed, what allows the airplane to pitch. In other words, to go up or to go down or to stay in level flight.

At the rear or at the aft end of the horizontal stabilizer are what is known as the elevators, and then also associated with each one of those elevators is something called a control tab, if you will.

The elevators, themselves, are what allow the airplane to pitch. As I said. go up or go down. They are controlled by cables and by hydraulics. The control tabs themselves are generally electronically driven or electric driven, and that is an area both that needs to be looked at from the flight data record to get information hopefully when that is retrieved, as well as looking at if the wreckage is, indeed, recovered, look at the physical evidence itself.

VAN SUSTEREN: Let's go to CNN's Charles Feldman out in California.

Charles, do we know precisely what the pilots said. I know that they said something about the stabilizers, but do we know the exact words of their trouble to give us more of a clue?

CHARLES FELDMAN, CNN CORRESPONDENT: No, not yet. I mean, there has not been an official release of that transcript of the conversation between the pilot and air traffic control. But all we know, as has already been said, is that on this flight to San Francisco, the pilot clearly was experiencing a control problem with the aircraft; radioed that to air traffic control and asked for that emergency landing at Los Angeles International Airport.

This is an area by the way, I'm a private pilot and I fly in this area a lot. I'm familiar with the characteristics of it, and it appears as if he was trying to make a normal approach vector back into Los Angeles International Airport at the time he lost total control of the aircraft and it plummeted from that 17,000-foot level.

VAN SUSTEREN: Lee, you know, in some aircrafts, I mean, it's obvious the hydraulics control the stabilizer, but is there any way you can mechanically or with foot pedals or any other type of pedal, manually control that stabilizer?

DICKINSON: Yes, Greta. What happens is, if indeed the pilots perceive a problem with the control tab itself, which as I mentioned earlier is electrically driven, that can be disconnected so that, indeed, manual controls can be placed into by either the captain or the copilot in terms of flying the airplane. And that's normal procedures and the typically pilots are trained to fly these types of situations and they're trained in these types of scenarios.

VAN SUSTEREN: So even if this were a catastrophic hydraulic problem, as to the stabilizer, there was still some sort of a stopgap in the sense that the pilots could have been doing something separate from the hydraulics to control it.

DICKINSON: You just threw in the word catastrophic event. We don't know if that is the case yet. The NTSB is hopefully going to be able to will tell us. But there are certain things that, obviously, the crew are trained to do, depending on how catastrophic something could be, that needs to be determined.

I also need to mention, Greta, that is -- we have heard the word that there is some type of mechanical problem that was radioed by the crew. What we don't know and what the Safety Board is going to have to determine is whether or not this was maybe a symptom of a larger problem or was this something that was actually triggering something else. And that's going to be determined as the investigation moves forward.

COSSACK: All right, let's take a break. Greg LaMotte, Charles Feldman and Lee Dickinson, thank you for joining us today. Up next, a change in focus to campaign 2000 and today's New Hampshire primaries. Stay with us.

(COMMERCIAL BREAK)

(BEGIN LEGAL BRIEF)

The jury pool for the Amadou Diallo police brutality trial, which was moved from the Bronx to Albany, New York, will consist of 2000 Albany residents. Most Albany jury pools have just 100 citizens.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: We take you now to Seattle for a briefing by Alaska Airlines spokesman Jack Evans.

(INTERRUPTED BY COVERAGE OF A LIVE EVENT)

COSSACK: We have been watching Jack Evans, an Alaska Airlines spokesman with a press briefing on the disastrous plane crash.

Let's take a break, and when we come back we'll return to more of BURDEN OF PROOF and the New Hampshire primaries. Stay with us.

(COMMERCIAL BREAK)

COSSACK: Candidates for the highest office in the land are in New Hampshire, today, awaiting the results of the first primary for the race for the White House.

VAN SUSTEREN: New Hampshire voters have already begun casting their ballots in a primary designed to shape the 2000 presidential election.

Joining us here in Manchester, New Hampshire, are law professor Albert "Buzz" Scherr; Steve Duprey, who's the chair of the New Hampshire Republican Party; and Kathleen Sullivan, chair of the New Hampshire Democratic Party.

Kathleen, first to you. A "Concord Monitor," the newspaper in Concord, New Hampshire, reported this weekend that there are 24,000 names on the Concord voting list. Five thousand shouldn't be there. There are 75 whose names appear twice. Some people have moved away. There are as many as 30 people dead. What's wrong with your voter list and is there a risk of fraud?

KATHLEEN SULLIVAN, CHAIR, N.H. DEMOCRATIC PARTY: Well, what's wrong with our voter list is that a lot of the city and town clerks haven't had the time or the staff or the ability to call the voter list. We do have a law in New Hampshire that the voter lists are supposed to be called to check the results of voter participation in general elections and also the most recent municipal election. It doesn't always happen. Is it a big problem? I don't think so. I mean, I -- you now, you've got -- obviously there's a risk someone may try to vote in place of someone who should not be listed, someone who has passed away, but it's never been a problem that I'm aware of.

VAN SUSTEREN: Steve, I've got to tell you, I'm a little bit startled by those numbers. Kathleen says it's not a problem. It's one vote, one person, but there's -- I tell you, there's an awful lot of room for fraud. This is an important state, the first primary. Some candidates may have to drop out who don't do well. Can you defend sort of this sort of, as I characterize it, a sloppy list?

STEVE DUPREY, CHAIR, N.H. REPUBLICAN PARTY: Well, I don't think you can. I mean, we have volunteer award officials, and they do this on a volunteer basis, run the elections, but we clearly need to tighten it up, because in some past elections we've had instances where kids have moved in, primarily college-aged kids, taken a temporary address and then shown up to vote. In fact, a couple of elections ago the secretary of state uncovered this and prosecuted someone. But we've had a bill in the past in the legislature to have a photo I.D. to register. That has been killed. I think that's regrettable, but clearly we need to do that. A fellow who writes editorials for the "Monitor" who now is out in San Jose is still on the list, and he's in town covering the primary. He could go vote today.

COSSACK: Buzz, I understand that there also there also is a suggestion that perhaps there would be a purging of voters who do not vote in the 2000 election so that perhaps they would be unable to vote in the next election. How's that going to work?

ALBERT SCHERR, LAW PROFESSOR: I'm not sure about the exact details, but there's been some discussion about that, and it's going to -- we'll see how it's going to play out. I think it's a pretty dramatic measure that's going to take a lot of resources to make it happen effectively.

COSSACK: It would seem that there might be some constitutional problems with something like that.

SCHERR: Well, it's -- the devil is going to be in the details. It's going to depend on how they go about the purging process, how they go about identifying people, and the process they use to determine whether they voted or not, etcetera.

VAN SUSTEREN: You know, Steve, I think it's interesting, in the event there is a recount and the people look at the ballots look at them and they're not sure which way the person voted, what do you do here in New Hampshire?

DUPREY: Well, we do it the old-fashioned way. We have a representative of each campaign, they make their best argument and then the secretary of state himself says I rule this way or that. We put them into a pile, then it's reviewed by a ballot law commission made up of three individuals, one of whom at least is an attorney and even representation between the parties, and if you don't like their decision, you can appeal it to the supreme court. So, our secretary of state gets very good at discerning whether a check is a check or an X or whether it's inside the box or outside the box. It can be very wild, and in the Dirk (ph) and Whyman (ph) Senate race we had a race decided by two votes for the first time around on the United States Senate.

VAN SUSTEREN: All right, we're going to take a break. turnaround for two votes in the United States. And up next: the make- up of the United States Supreme Court and how this November's election could affect federal law. Stay with us.

(BEGIN Q&A)

Q: Why is Emily Lyons, who was severely injured in an abortion clinic bombing two years ago, suing the alleged clinic bomber Eric Robert Rudolph?

A: According to her lawyer, Lyons is suing the alleged fugitive bomber in part so that he is unable to profit from the story of his crime.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: When Republican Senator Orrin Hatch dropped out of the presidential race last week, he noted a daunting responsibility awaiting our 43rd president: the nomination of half of our federal judges and possibly five Supreme Court justices.

Joining us now from Washington is constitutional law professor Peter Rubin.

Peter, you clerked for Justice Souter, who hails from the state of New Hampshire. Can a president truly predict how a Supreme Court justice will vote on any particular issue?

PETER RUBIN, CONSTITUTIONAL LAW PROFESSOR: Well, I don't think precise prediction is possible, and of course you can't anticipate what the big issues are going to be in the future. We're going to have issues in the 21st century about cyberspace that we can't even anticipate, for example. But a president can play a substantial role in remaking the shape of the Supreme Court. Presidents Reagan and Bush undoubtedly did. And if a president is careful, he can make a huge difference in federal law in a wide range of areas.

COSSACK: Peter, Justice Souter, some people say, turned out to be not exactly what perhaps they thought he was going to be -- more moderate, more liberal, if you will. Is this something that we could have predicted?

RUBIN: Well, I think so. I think that -- I don't think this is a question of a justice evolving, moving leftward. I think that Justice Souter is exactly who he was when he was appointed to the court. There may be people on the right wing of the Republican Party who are disappointed, but if they'd paid attention to what he was saying when he was nominated, if you replay the videotape of his Senate confirmation hearing, you'll hear him describing a jurisprudence that is exactly the jurisprudence that I think he stands for on the court.

VAN SUSTEREN: Kathleen, do you think the voters here in New Hampshire -- because Justice Souter is from New Hampshire and the Supreme Court is appointed by the president of the United States, do you think the voters when they cast their vote today are truly concerned about who might be on the bench?

SULLIVAN: It's obviously a big factor, and I think voters here in New Hampshire are well-versed enough in the political process to know that a president has a tremendous impact well beyond his administration based on the Supreme Court appointments he makes. Is it a factor? Yes. It'll obviously be more of a factor in November when choosing between a Democrat and a Republican because of the distinct differences in political philosophies between the two parties.

VAN SUSTEREN: Buzz, do you share that?

SCHERR: To some extent. I think New Hampshire voters this year are particularly sensitive to the power of judges because we've been going through, for the past several years, a big fight over education funding in which the New Hampshire Supreme Court has had a large role, and I think the voters in New Hampshire are very sensitive to the power that judges can have. So perhaps this election cycle more than others, voters are going to be thinking about who gets to appoint judges and what kind of judges might be appointed.

COSSACK: Peter, should nominees to the Supreme Court, or for any federal bench, for that matter, be asked litmus-test opinions, how they would vote on certain kinds of questions?

RUBIN: No, I think that it's inappropriate to ask, and I think that anyone who would answer questions about how he or she might rule on the bench ought to be disqualified from serving. But I think that a president can, by selecting someone who has a record -- judicial record on the lower federal court -- for example, President Reagan's appointees to the Supreme Court were all judges before they ascended the high bench -- I think a president can make a pretty good prediction of what he's getting when he selects a judge for the Supreme Court, if he cares.

VAN SUSTEREN: Steve, how much do you think that the voters here in New Hampshire actually follow the career of Justice Souter, because there are only nine on the Supreme Court?

DUPREY: Right. Very closely. It's a small state, we all know him. And you know Gary Bauer's been very critical of Justice Souter's decisions, as was Orrin Hatch. In fact, Senator Hatch said, you've got to make me the president because I'll do a good job picking them; no more mistakes. And one woman stood up and said, well, didn't you vote to confirm Justice Souter? Kind of took the wind out of those sails.

What happens in New Hampshire, it's a small state, we all know him, we know he works incredibly hard, he's devoted to the Constitution. And while a lot of people would disagree with some of his decisions, we know he's given it his best and doing it the right way. So that criticism has really fallen on deaf ears, even with most of the conservatives in our party.

VAN SUSTEREN: You know, most of us can't identify Supreme Court justices. They're hidden.

Kathleen, do people recognize Justice Souter here?

SULLIVAN: I was going to say, you know, if he's walking down the street of his old home town, sure they do, and they go up to him and they talk to him about how he's doing. And Justice Souter is a beloved figure in New Hampshire. People are proud of the fact that we have a Supreme Court justice who hails from New Hampshire. People know how intelligent he is and how hard working he is, and we're proud of him.

DUPREY: I ran into him on the street the other day. He was home for the Christmas recess. He walks around, talks to everybody, eats at the usual places. We know him. So while we might disagree with his decisions, nobody criticizes how hard he works and that he's doing the work as he sees it. And so it's bad criticism to try and make points with politically.

COSSACK: All right, but that's all the time we have for today. Thanks to our guests, and thank you for watching.

Tune into "TALKBACK LIVE" today for the latest in the New Hampshire primary. That's at 3:00 p.m. Eastern time, noon Pacific.

VAN SUSTEREN: And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.

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