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Burden of Proof

Ray Lewis Bond Hearing: Can Character Witnesses Help Him Walk Free Pending His Trial?

Aired February 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)

ED GARLAND, ATTORNEY FOR RAY LEWIS: We come here presenting the position that he is not guilty and not criminally responsible for the results of a spontaneous fight between 10 or more people; a fight between others, provoked by others; a fight that Ray Lewis attempted to prevent and acted as a peacemaker.

CLINT RUCKER, PROSECUTOR, FULTON COUNTY, GEORGIA: Have you had an opportunity to speak to your son about the facts of the case?

SUNSERIA L. KEITH, MOTHER OF RAY LEWIS: No, I haven't. I haven't talked to him yet about the case at all. All I talk to Ray is about the Lord.

ART MODELL, BALTIMORE RAVENS OWNER: Held in highest esteem by his fellow players and by his coaches. And the mere fact there are several Baltimore Ravens players here today, voluntarily, speaks loudly as a -- what they feel about Ray Lewis.

(END VIDEO CLIP)

GRETA VAN SUSTEREN, CO-HOST: The Ray Lewis legal team fights for his release while Atlanta prosecutors fight to keep him behind bars. The Ravens all-pro linebacker has been indicted for murder, but can character witnesses help him walk free pending his trial?

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

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.

Today in a Georgia courtroom, lawyers for pro football player Ray Lewis argued for his release before a Fulton County judge. Lewis has been indicted in the deaths of two men outside an Atlanta nightclub following the Super Bowl.

ROGER COSSACK, CO-HOST: Now, the first witness called to the stand was Lewis' mother, who testified that her son acted as a father figure after her marriage failed. But Fulton County prosecutor Clint Rucker focused his cross-examination on the events of January 31.

(BEGIN VIDEO CLIP) RUCKER: What is it, then, that gives you a basis to say that he is innocent?

KEITH: Because I gave him life and I raised him very well. And I know that my son, without a shadow of a doubt, would not take a knife and brutally murder anybody.

(END VIDEO CLIP)

VAN SUSTEREN: Joining us today from Atlanta is Bruce Morris, who's the attorney for Lewis' friend Kwame King. And here in Washington, Katie Plemmons (ph); criminal defense attorney Ron Sullivan; and Doug Gansler, who's a state attorney from Montgomery County, Maryland.

COSSACK: And in the back, Neil Glansky (ph), Dana Yulman (ph) and James Laster (ph).

But first let's go to Nick Charles who is the CNN/Sports Illustrated senior correspondent.

Nick, you've been in the courtroom all morning. What's going on in there?

NICK CHARLES, CNN/SI SENIOR CORRESPONDENT: Well, Roger, the first thing that was interesting, I think, to any layman is that the prosecution argued that the issues of the bond hearing and the issues of the trial are vastly different things. They were saying, the DA, that the strength of the state's case is a factor whether to release Ray Lewis, and they tried to chisel home that point.

Ed Garland, in his opening statement, talked about Ray Lewis being a young man with extraordinary character and that his $27 million contract would be sufficient incentive not to flee if he would be released on jail -- released on bond. But the prosecutor tried to, I think, throw his mother off when his mother took the stand saying: Would you expect your son to render aid to somebody who was wounded, and would you -- would he try to -- given his character, would he try to save that person's life? And as we all know, Lewis and the two co- defendants who are being accused of murder fled the scene in the limousine and didn't stay as these two people lay bleeding on the street, according to witnesses.

So, that was interesting. The state's exhibit produced -- I think they drove home two important points, Roger and Greta. The state exhibit one, which provided a picture of Lewis with two others, one of whom is Joseph Sweeting, one of the three accused of murder. Ray Lewis had told police he did not know Joseph Sweeting, yet Lewis' mother testified she didn't know him by that name but she had seen him in Lewis' house several times.

The other point was that Sweeting had been issued a sideline pass to several Ravens games, and how could that be, of course, if he didn't know Ray Lewis at all? Sweeting and another co-defendant are still at large. So that's where we are at this point. his mother took the stand, and then Art Modell, the owner of the Baltimore Ravens, who tried to bring home the same point that the contract would mean he'd lose his job, of course, if he were convicted. With a $27 million contract at stake, he would not flee if released on bond.

VAN SUSTEREN: Nick, who's in the witness line-up for the rest of the day?

CHARLES: Well, there are several NFL players here and we don't know. Some are on the list, including Warren Sapp. There are several teammates, Rod Woodson of the Baltimore Ravens, who came here to show their support. So, basically, after Ray Lewis' uncle, who is also a pastor, testified, they broke for lunch for an hour and a half. But the judge has said, we want to keep this thing moving. You're dragging it on. We want a conclusion by 4:00 this afternoon.

COSSACK: All right, thanks to Nick Charles.

Let's go now to Bruce Morris.

Bruce, what are the factors that the court is going to take into consideration in determining whether or not he gets bail or -- he is granted bail -- Ray Lewis is granted bail?

BRUCE MORRIS, KWAME KING'S ATTORNEY: Roger, under Georgia law, it's entirely in the discretion of the trial court. The judge has to determine what set of conditions would ensure that Ray appeared for every court appearance and what set of conditions would protect the community.

VAN SUSTEREN: Is danger, then, an element of this, Bruce?

MORRIS: Danger is definitely an element, and I think the defense team this morning is trying to point out that, number one, his NFL contract will keep him where he can be found because in order to collect his money, he has to show up and play. And the second thing is, I think they'll be arguing, from all of the witnesses that testify, that he has a reputation for being an upright citizen, and he'll stay around.

VAN SUSTEREN: Ron, it seems a little bit like, then, that you've got the issue of flight, and it seems, actually, is a pretty strong argument and that he's, you know, he's pretty much connected to the community. But this issue of dangerousness forces the defense and the prosecution into a mini-trial, does it not?

RONALD SULLIVAN, CRIMINAL DEFENSE ATTORNEY: It does in a sense. Generally, under statutes that have -- that use the category of future dangerousness, the presumption shifts to the defense and the defense has to prove that the defendant is not a danger to the society, whereas, under most bail statutes, there's a presumption that someone should be freed on personal recognizance.

VAN SUSTEREN: But the crime itself, I mean, is the ultimate. So the crime itself, of course, weighs heavily against that, so the defense is put in the position of saying this guy would never do that kind of thing and here's the weak prosecution case, is that right? SULLIVAN: I think that's absolutely right. If their -- if the prosecution case is weak, then you take that opportunity to attempt to poke holes in the prosecutor's case to be able to argue to the judge that, you know, he's not a danger, he didn't commit this particular crime, and he's not a future danger in the community.

COSSACK: You know, Bruce, that's an interesting point to me, this notion of the weakness of the prosecutor's case. Now, how does the defense go about finding out the weakness of the case? I mean, do they call the prosecutor, do they put the crime reports in evidence? What do they do, and what does the prosecutor say? I mean, this isn't a trial, this is just to see whether or not he gets bail?

MORRIS: I would expect the defense to argue that the prosecutor has failed to put a knife in Ray Lewis' hand. That's one of the keys to this matter. They've indicted him for the murder, they have no evidence whatsoever that anybody has seen that he ever touched the knife or used a knife at the scene of that offense. And when Clint Rucker attempted to cross-examine Ray's mother about why didn't he stop and render aid, her response was perfect: The evidence in this case so far is that when Ray left the scene, shots were being fired at him, plus he did not know that anyone had been injured at that time, so there would have been no reason for him to stay and help.

VAN SUSTEREN: Doug, one of the things prosecutors always have to worry about is the defense trying to smoke out the prosecution case. Isn't that true at this stage?

DOUG GANSLER, STATE'S ATTORNEY, MONTGOMERY COUNTY, MARYLAND: Yes it is. And, actually, in this case -- this type of case, which is such of a high-profile nature, they're also -- the defense is doing another thing, which is trying to paint a picture of Ray Lewis as this wonderful, good person in the bond hearing. And that may be true, but all of these witnesses that are coming in today to testify, none of those witnesses were at the scene of the double murder.

So the prosecutor is saying Ray Lewis was involved -- inextricably involved. Whether or not he had the knife, under Georgia law and elsewhere, he is just as guilty as if he had actually stabbed somebody himself, if he is that involved. And, secondly, this is -- because it's a double murder, he's facing, potentially, the death penalty. So the crime matters because of the potential consequences, and the money cuts both ways. The fact that he has a $26 million contract is one thing, but he's also got well over a million dollars in the bank. He's facing the death penalty. There's a potential risk of flight here. So I think those are the issues that are being hashed out today.

COSSACK: All right, let's take a break. Up next: How Atlanta authorities have been investigating this case and a look at the discovery rules in the state of Georgia, and what do they tell each other? Stay with us.

(BEGIN VIDEO CLIP)

GARLAND: Ray Lewis is a young man, age 24, with extraordinarily good character. His character off the field exceeds his accomplishments as a pro football player.

(END VIDEO CLIP)

(BEGIN LEGAL BRIEF)

White supremacist Matthew Hale, who was denied an Illinois law license at least partially because of his views on race, has asked the Supreme Court to review the decision.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

VAN SUSTEREN: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the Worldwide Web. Just log-on to CNN.com/burden. 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." You can also interact with our show and even join our chat room.

(BEGIN VIDEO CLIP)

GARLAND: He did not start, cause or promote the stabbing, and he did not have a knife, hold a knife, use a knife or cause anyone to use a knife.

RUCKER: You can't imagine him in your wildest dreams, I believe is what you said, that he could be a part of something like this.

KEITH: No, I didn't say that. I didn't say that. Don't put words in my mouth.

(END VIDEO CLIP)

COSSACK: This morning in Atlanta, a bond hearing began in the case against pro football player, Ray Lewis. The pro bowl linebacker has been indicted in the stabbing deaths of two men outside a nightclub following last month's Super Bowl.

Bruce, let's talk about what happens next. Eventually there's an investigation that goes on, and each side has to get some of that investigation. What are the rules in Georgia? Will -- what will the defense be given right away, and does the defense have to give anything to the prosecution?

MORRIS: In Georgia, if you opt in for discovery, that is, request discovery from the state, the state has to provide all of the documentary evidence that that it intends to introduce, any confessions that are alleged to have been given by the defendant, and the results of any scientific tests. By the same token, the defense has to give the reciprocal discovery. In this case, we don't know yet whether the defense team will opt in or not. The defense team has engaged in a tremendous amount of investigation on its own, and frankly, I think the defense may have talked to more witnesses than the prosecution has at this point. VAN SUSTEREN: Bruce, explain to me, in Georgia you don't -- do you have degrees of murder, and if not, what has -- what has he actually been charged with?

MORRIS: He's been charged with murder in Georgia. That's what we have. We used to have first-degree murder, second-degree murder and the like. We just have one charge now, that is murder. It carries one of two penalties: If they seek the death penalty, the only choice the jury has is life or death. If they don't seek the death penalty, there's only one punishment for the crime of murder if you're convicted, and that is a life sentence.

VAN SUSTEREN: What if, though -- I mean, there's a big difference between lying in wait and planning to kill someone and getting into a fight and someone getting killed. I mean, typically one is first-degree murder and one is second-degree murder, which carries less penalty because the judicial system is thought you're less culpable. Do you not have anything like what in Georgia?

MORRIS: Well, what we have in Georgia is the felony charge, and the allegation in this case would be an aggravated assault, that is, the assault with the knife that resulted in death. If he's convicted of felony murder, again, that carries the same life sentence. So, the prosecution has given itself two alternatives, straight-out murder or felony murder.

COSSACK: Doug, as a prosecutor, this is a case that presents some problems. What kind of physical evidence are you looking for, you're trying to develop in this case?

GANSLER: The case does present problems from what we know right now of a prosecutorial standpoint, because it's only two weeks old and the prosecution is very wary, it seems to me, of giving out too much of their evidence because they're still investigating. But at this point, we do know that a grand jury has indicted Mr. Lewis. So, they've at least -- they at least have enough evidence to establish probable cause on either of the two theories discussed. The aggravated murder, the felony murder being the aggravated assault, that is, he was there with knives during a fight that ended up with two people dead, they do have -- you know, the reports have been very different. They do have evidence, apparently, that Mr. Lewis was there when the knives were bought. They do have evidence that the knives were found in Mr. Lewis' limousine. They do have evidence that the receipts for those knives were found in Mr. Lewis' hotel room. They do know that the bar closed at 3:00, he was there at 4:00, he sped off in his limousine and shots were actually fired at the limousine.

VAN SUSTEREN: Boy, there's a big difference between what you've laid out and evidence putting a knife in someone's hands, I mean, a huge difference. Ron, do you want to respond to...

SULLIVAN: Absolutely. I think that is going to be the touchstone of whether or not Mr. Lewis is convicted. If the government can put a knife in his hand, have a jury believe that a knife was in his hand, then the government probably has a good chance of convicting him of murder. If there's no knife, then I don't think that he'll even be convicted under a felony murder theory.

VAN SUSTEREN: So it's not enough that you were there when the knife was bought and the knife shows up in your car, you've got to have the knife in your hand. But let me ask you one other thing: is it possible you can be an aider and abettor to someone else using that knife. Can you think of a scenario hypothetically?

SULLIVAN: You can, of course, think of a scenario where you aid and abet a killer.

VAN SUSTEREN: Like? What would you to aid and abet?

SULLIVAN: Well...

VAN SUSTEREN: Cheer? I mean, something like that? Encourage?

SULLIVAN: Encouragement could be a factor. I think I could win with those sorts of facts if I were a defense counsel. Holding someone while another person attacked them with the knife. Even providing a, quote, unquote, getaway car could be inferential evidence that you aided and abetted in the commission of a crime. So, there are certain theories that the government can proceed under, but under the felony murder rule, if the defense is able to show, able to convince a jury that this crime was not committed in furtherance of the underlying felony or if the accomplice, the two accomplices, committed it for their own ends or if it was a separate and distinct act unrelated to this fist fight, then Mr. Lewis wins.

GANSLER: Let me give you a factual scenario. In this case, if Ray Lewis is sitting in the car, never gets out of the limousine, having had this fight with these guys in the bar earlier, says to his two friends who he grew up with, go out and kill that guy, or, use your knives to get in a fight with that guy, that would be enough under the law...

VAN SUSTEREN: That would be enough. Under the law that would be enough...

GANSLER: ... but a jury may nullify it.

VAN SUSTEREN: ... but if he's in the car and his two buddies do it, even if he were present when the knives were purchased, then he's not an aider or abetter.

GANSLER: He has to have knowledge of the fact that they're going to go out with knives and be part of this fight or actually if he had the knife.

COSSACK: (OFF-MIKE) for a second. Bruce, do they have an obligation in Georgia where Ray Lewis would have to stop these two guys if he knew they were going to go out and do something?

MORRIS: No, there's no obligation to do anything, nor is there any evidence that he had any idea these knives were going to be used for any improper purpose. There's nothing that we've seen in any account of this story that puts Ray outside of that limousine with a knife or near a knife or even coaching anybody to use a knife. It's just not there.

VAN SUSTEREN: And I think, Bruce -- I think it's -- I hope it's been clear to the viewers that we've been speaking hypothetically to try to understand the Georgia law.

But we need to take a break. Up next, we'll take a look at defense and prosecution strategies in high-profile cases. Stay with us.

(BEGIN Q&A)

Q: What was the Valentine's Day Massacre"?

A: Chicago gunmen who worked for Al Capone murdered seven members of the rival "Bugs" Moran gang on February 14, 1929. It was the first organized crime massacre that received national attention and notoriety.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: Welcome back to BURDEN OF PROOF.

We're talking about the murder indictment against the Raven all- pro Ray Lewis. His lawyer is in court today trying to get him released pending trial.

Bruce, are cameras today for this bond hearing, and it is an ongoing hearing today. If there is a trial, does Georgia permit cameras for the trial?

MORRIS: Georgia does permit cameras for the trial. And I would suspect, in a high-profile case like this, that you could expect to see cameras in the courtroom.

VAN SUSTEREN: Does that make it easier or harder for the defense? or irrelevant?

MORRIS: It is sort of an open question. Some defense lawyers like the fact that there is a camera in the courtroom to keep the prosecution honest. Some defense attorney feel like it puts too much information out on the street, and there is a danger that it gets to the jury, and it's information the jury was not supposed to hear, and that's dangerous.

VAN SUSTEREN: Except for today, of course, though Roger, his mother was on the witness stand and his great uncle, who is a minister. And that is not bad information to get out there.

COSSACK: Doug, I wanted to get to you on that. As a prosecutor, you are now conducting this -- this bail hearing, and what you see is people of high reputation in the community coming in to testify what a great guy Ray Lewis is. And you, in some way, perhaps realize that this is going to be part of the defense. Does this make it tough to get a conviction when you have these kind of people coming in? GANSLER: It does and it doesn't. What this does is it is really a trial in the press. And again, the case is only two weeks old. Obviously, the prosecution has some evidence. No one charges somebody, particularly a Ray Lewis, with a double murder unless they think -- they really believe they did it. And the indictment has been passed, so the grand jury believes that he did it as well. And that information that happened in the grand jury is secret, but they have to be careful about what they release at this point because they are still investigating.

On the other hand, the defense will not be able to call these witnesses out of trial because Ray Lewis has other character problems. These people are all coming in, none of whom were there, and saying Ray Lewis is a great guy. Good people do bad things. He could be a great guy, and might have did a bad thing. We don't know enough yet.

But they won't be able to come in at trial because Ray Lewis has other cases pending against him. For example, so they are doing that right now to try and get the public sentiment in his favor.

VAN SUSTEREN: Ron, I never wanted the prosecution to know what my defense was until the very last minute.

COSSACK: You hit them over the head with it.

VAN SUSTEREN: Yes, I tried to keep it a big secret until the end. Does the defense have a problem here, or at least a risk, when they have a hearing like this, where they put on a mini-trial to say: Look, he is not dangerous because he wasn't there, that this was something the prosecution thinks is very different from what happened. Do you risk tipping your hand dangerously?

SULLIVAN: Absolutely, and the reason it is a risk is because your theory cannot change over time, at least without you losing a lot of credibility. The facts may come out in such a way where it's not the best defense theory to say: I wasn't there or he was there but attempted to break up the fight. Some other factual scenario may be the best defense theory. So whenever you put out a theory too early, then you are locked into the theory.

Now if I can comment quickly on something Doug said, with respect to the character witnesses, I think you can bring the character witnesses still. However, they are subject to cross-examination and the prosecution can bring out specific instances.

VAN SUSTEREN: And you can hear anything bad that he did too. You hear the good character, but you're going to hear the bad character.

SULLIVAN: Are you aware that he was arrested 25 times.

VAN SUSTEREN: Or whatever.

COSSACK: And it is one thing to tell this information to a judge. It's another thing, as you know, as we all know, to tell it to a jury. All right, that's all the time we have today. Thanks to our guests and thank you for watching.

Later today on CNN, "TALKBACK LIVE" catches up to the candidates on the presidential campaign trail. Find out why Pat Robertson thinks John McCain's run for the White House is bad news for the GOP.

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

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