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Burden of Proof

Jury Selection Begins Tomorrow in Case of 'Railway Killer'

Aired March 27, 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)

ANGEL MATURINO RESENDIZ, SUSPECTED RAILWAY KILLER (through translator) Can all those be done very quickly so that I can say that I'm guilty?

DEVON ANDERSON, ASSISTANT DISTRICT ATTORNEY, HARRIS COUNTY, TEXAS: I mean, in a murder case, you have a couple of defenses: "I didn't do it. You got the wrong guy," or it was self-defense. I don't think that's going to be an option here. So I guess the third would be, "I'm crazy." I don't know which one he'll pick.

(END VIDEO CLIP)

GETA VAN SUSTEREN, CO-HOST: Charged with seven murders in three states, Angel Maturino Resendiz faces his first trial in Texas where jury selection begins tomorrow.

Today on BURDEN OF PROOF, the case of the alleged railway killer.

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

VAN SUSTEREN: Hello, welcome to BURDEN OF PROOF.

Last summer, the nation lived in fear as a killer rode the rails. The multi-state murder spree turned into a multi-national manhunt, and the manhunt did not come to an end until Angel Maturino Resendiz turned himself in.

ROGER COSSACK, CO-HOST: Resendiz, also known during his stint on the FBI's 10 Most Wanted List as Raphael Resendiz Ramirez (ph), pleaded not guilty by reason of insanity to the sexual assault and stabbing death of a Houston-area physician.

He has also been charged with other murders in Texas, Illinois and Kentucky. And jury selection for this first trial begins tomorrow.

Joining us today in Austin, Guillermo X. Garcia, who is covering the case for "USA Today," and in Houston, former Texas state prosecutor Rusty Hardin, and criminal defense attorney Ed Mallett.

VAN SUSTEREN: And here in Washington, Kim Gonzalez, former federal prosecutor Steve Berk, and Monica Epps. And in our back row, David Manning and Etienne Lombard.

Guillermo, let me go first to you. What is the murder that the -- that Mr. Resendiz is going on trial for tomorrow?

GUILLERMO X. GARCIA, "USA TODAY": Good day, first of all. It is the first of approximately seven murder cases that have been lodged against him. He is also the primary suspect, the only suspect in two other murders.

He is accused of killing a Houston-area physician, sexually assaulting and murdering the lady back in the summer of 1999. He was arrested, actually turned himself in. And part of the agreement, or so his family and he were led to believe by the Texas Rangers and the FBI, were that he would not face capital murder charges.

That has since not been the case. He is charged with capital murder. He faces execution in death row should he be convicted on this, the first of seven murder trials.

VAN SUSTEREN: Guillermo, what can you tell us happened to the doctor, Dr. Claudia Benton? What happened to her?

GARCIA: She lived close to railroad tracks in the western part of metropolitan Houston. She was rather brutally assaulted sexually and then murdered in a manner very similar -- in a similar pattern, rather, according to prosecutors that six other murder victims also faced there end.

COSSACK: Guillermo, he turned himself in. As you say, part of the reason was that he believed that the capital punishment would not be placed against him. What happened to that agreement?

GARCIA: That's a good question, Roger. Allegedly, his sister and his brother, both of whom are Mexican nationals, as is Mr. Resendiz, were approached by a Texas Ranger and by several agents of the FBI.

Allegedly, his family relayed word to him that if he would voluntarily turn himself in, he would not face capital murder charges. He would face murder but he would not face execution.

The prosecutor in the case or the lead prosecutor in the case in Harris County, Mr. Lynn McClellan (ph), said that he has no recollection, no knowledge, and there's no indication that that promise was made but that even if that promise was made, that he is not bound by any promise that may or may not have been made by law enforcement to, in effect, lure Mr. Resendiz into giving himself up.

VAN SUSTEREN: Guillermo, obviously, when you're facing so many charges -- there's six other murder counts out there in three other states -- there's a risk of an unfair trial. So looking solely at the murder of Dr. Claudia Benton, what is the evidence that links Mr. Resendiz with that murder scene?

GARCIA: As in the case of several other of the murder scenes, the crime scenes, rather, there is certain DNA evidence presumably from the sexual assault, as well as fingerprints that were found either in Dr. Benton's vehicle or in and around her home.

COSSACK: Guillermo, has there been any hearings with regard to this death penalty issue? Has the defense come in and said, "Look, a contract was made and you, the prosecutor therefore, cannot ask for the death penalty"?

GARCIA: No, not to our knowledge. It's been rather tightly held at this point. There is very little in the court record other than a number of the autopsies that were filed both in the Texas homicides as well as two in Illinois.

But at this point, the defense attorneys have not sought that route. I believe they may be having their own problems trying to get their client to cooperate. At this point, he has been interviewed by defense psychiatrists and psychologists.

He has refused, Mr. Resendiz, that is, has refused to cooperate or allow himself to be interviewed by a court-appointed psychiatrist because he felt double crossed, in the words of his defense attorney, Alan Tanner (ph).

VAN SUSTEREN: Steve, obviously, with so many murder charges out there, you'd think that a prosecutor might be content to have a jury pool that was poisoned by the fact they heard about all the other murder counts. But one of the worries a prosecutor has is you want to make sure if you do get a conviction, that it sticks, it's not reversed later because of the prejudice from the other murders. What does a prosecutor do to make sure you don't have that problem?

STEVE BERK, FORMER FEDERAL PROSECUTOR: Well, you certainly don't want to spoil the jury pool; you're absolutely right on that, Greta. And you just have to be careful. You don't want to overplay your hand. And so you don't want to see a lot of statements from the prosecutor's office about these other murders, about other charges, about other states. And it appears that the prosecutor has been relatively careful so far to date in this case. This case speaks for itself in the fact, and so the prosecutor shouldn't overplay their hand.

VAN SUSTEREN: Ed joins us now from Texas.

Ed, what's a defense attorney to do when you've got a client that won't cooperate with experts, defense experts?

EDWARD MALLETT, CRIMINAL DEFENSE ATTORNEY: Well, it's every lawyer's nightmare to be appointed to represent someone who won't establish rapport with you and communicate on a real basic level. My impression is that there is some cooperation between Resendiz and his appointed attorney; that's what we read in the newspaper. The complaint seems to be that Mr. Resendiz is not enthusiastic about working with the state's appointed experts.

COSSACK: Rusty, what do you do in terms of this -- I keep wanting to go back to this issue regarding the promise that was made, because there is a law that would indicate that if an agent promised something to a defendant, that the prosecutor would be bound by that promise.

MALLETT: Well, I found the statement by Lynn McClellan to be really unusual. Either he has spoken to all of his witnesses and knows what was promised or he hasn't spoken to all of his witnesses. And it would strike me as extraordinarily unusual that a 20-year prosecutor would begin a capital murder trial in Harris County, Texas without knowing every word that passed between his witnesses and the defendant and family members of the defendant.

VAN SUSTEREN: Rusty, did you want to weigh in on that issue?

RUSTY HARDIN, FORMER STATE PROSECUTOR: I think -- No. I think it's much ado about nothing, quite frankly. The only person who has the authority to give anyone immunity is the prosecuting authority. A police officer can't go out and give binding immunity to someone whatever they say. So whether they did or did not say it -- And thusfar, you know, that's to be litigated whether it was even said to begin with.

But even if they did, the prosecutor's not bound by that at all. And the most that could happen from something like that, any statements that flowed from those promises might very well be challenged and could potentially be inadmissible.

But this guy has talked to everybody and his brother totally aside from that. Written to newspapers. He's called the prosecutor. He's written the prosecutor. He's been on a one-man crusade to provide information for many months.

COSSACK: But Rusty, what about the notion that the police officer acts as an agent of the prosecutor? And if, in fact, it was shown that the police agent went out with the knowledge of the prosecutor and said, "Listen, get your brother to turn himself in and we won't give him capital punishment, we won't try and kill him," doesn't that bind the prosecutor?

HARDIN: No. I know of no reported case in this country that has ever said that if a police officer offers immunity from prosecution, that that is going to be binding on the district attorney. You know, maybe you're familiar with cases I've not seen.

VAN SUSTEREN: Roger, Roger, I think it's a question not so much of case law but just simply of fair dealing and integrity. And if you've got -- I think many prosecutors will honor what police officers have said just out of a sense of fair play.

COSSACK: I know we have to take a break, but I think it's more than that. I think if you can show that he went out as an agent with the knowledge of the prosecutor, that there would be a binding agreement. But look, let's...

VAN SUSTEREN: Yeah, but any proof of that...

COSSACK: Let's take a break and we'll get back to it in a second. Resendiz refuses to cooperate with his court-appointed counsel, so how do you defend a difficult client like that, when we come back.

(BEGIN LEGAL BRIEF)

Not a single member of the 23-person grand jury that investigates crimes in Los Angeles County is Hispanic. Hispanics make up 40 percent of the L.A. County population and 25 percent of the county's eligible voters. Grand jurors are nominated by the 428 county judges.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

VAN SUSTEREN: Good news for our Internet-savvy viewers. You can now watch BURDEN OF PROOF live on the World Wide 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.

COSSACK: DNA evidence as well as fingerprints link Angel Maturino Resendiz to the crime scene. The defendant is not cooperating with his attorney and has refused to speak with the court- appointed psychiatrist in his case.

Randy, before we get to that, I want to just sort of finish up on the point that we were talking about. My feeling was that if, in fact, you could show that the police officer spoke to the prosecutor and then went out and made this reference to the family and said, "Look, if you bring him in," then I think the prosecution is bound.

HARDIN: Well, I think that's a whole different deal, surely. I mean, if the prosecutor made a representation, whether he or she was legally bound to follow it on the case law or not I think, obviously, morally they are. But I don't think that's the case.

I don't think you're going to find that these prosecutors were involved at all in the surrender. You had like seven jurisdictions or three or four jurisdictions, seven murders, looking for him. I think all of these people arrived after whatever had been said and he was in custody.

COSSACK: Ed, in order to raise the insanity defense in the state of Texas, must a defendant speak to a court-appointed psychiatrist?

MALLET: Well, of course, not. We all know the cases involving a psychiatrist in Dallas, Dr. James Grigson (ph), who would be put with defendants as a state psychiatrist and they would refuse to speak to him. He then would look at all of their history and come and testify that their demeanor during the interview, even though they were silent, coupled with their history persuaded him not only that they had committed the offense, but more importantly, that they would reoffend and kill in the future and deserve the death penalty.

VAN SUSTEREN: And that was the -- Is that the psychiatrist that they used to call Dr. Death down in Texas? MALLET: Yeah. And actually, he's a terribly nice guy but I think this was a period in his life when he became the preeminent proponent from the psychiatric side of the death penalty in Texas.

HARDIN: I don't disagree -- Let me tell me what I think is going to happen in this case, though, as a result of all this. I think many psychiatrists and psychologists think that they're kind of -- that this prohibits them from rendering an opinion as to this specific defendant's sanity without having been able to interview him.

I think maybe what you're going to see in this case if the defendant insists on no longer talking or not at all talking to the court-appointed psychiatrist or psychologist, I think what you'll probably see is that the state will file a motion saying that the defense psychiatrist and psychologist can render opinions about hypothetical cases but they should be prohibited from rendering an opinion in this case as to this specifically defendant's sanity as long as he will not cooperate and talk to the court psychologist. And I think that kind of motion's going to have a good chance.

VAN SUSTEREN: Steve, one of the problems that prosecutors can have is if a defendant is not cooperating with his lawyer or the defense that the lawyer thinks is a wise one. What does a prosecutor do in that case? I mean, that's a tough spot for the prosecutor as well.

BERK: It absolutely is. And it's a tough spot for the court as well. I mean, the judge has a problem, too. The judge wants the defendant to be well represented. I mean, the prosecutor has to be very careful, again, and not to overplay their case, not to over zealously prosecute in that circumstance; in some ways, to act almost as a defense attorney as well so that the record is a good record, that the record is that the defendant had their opportunity to defend themselves.

VAN SUSTEREN: Isn't it sort of hard, though, not to overplay it when the defendant is accused of such a heinous crime?

BERK: Well, it is because, yes, the crime is heinous, but you can put those facts in very gently and let the jury draw their conclusion. I'm a big fan of the jury system. The jury knows. The jury has great common sense. And you don't have to overplay these facts, Greta. I mean, it was a brutal murder, it was a brutal assault. The jury will get it. The jury will look at this man and make a determination whether they believe those actions are consistent with somebody that was sane or insane. So that's sort of how you underplay it. You don't leave out those facts.

HARDIN: I think -- I totally agree with that. And I've prosecuted maybe 14 or 16 of these at one time. And I think absolutely right, that the key is not to overplay it, because almost always, by definition, these are horrible facts. And the prosecutor, really, their responsibility ethically, but also is to achieve the desired result for themselves is to not overdo it.

I think in this case, therefore, they're not going to try to keep that psychiatrist or psychologist from testifying. They're just going to try to limit what he can say unless they are allowed to have either their own expert or the court's expert, which is really who this is, talk to him.

VAN SUSTEREN: Ed, anyone who's done defense work has...

COSSACK: Ed, let me just jump in.

One question, Greta.

Ed, when do you get to the point where you say to your client who's not cooperating with you and not doing what you want, where you say to the court, "You know, judge, I cannot put on a viable defense for this man"?

MALLET: Oh, I think that's abandoning ship. The responsibility of the lawyer continues whether the client is cooperative or not. Indeed, the fact that he's not cooperative could be evidence of sanity or insanity, depending on other facts in the case.

HARDIN: Well, actually, that's an interesting point, because if you think about, his decision not to talk to somebody whose evidence will be provided the state is a very sane decision. And it may actually be considered evidence that works in the opposite way. If he acts very bizarre during trial and such, does that help him? And does he break out?

And I think this guy is probably going to want to perform at different times, and the attorneys are just going to have an extremely difficult time dealing with him.

VAN SUSTEREN: All right, we have to take a break. And because the alleged railway killer faces the death penalty, potential jurors are subject to intense scrutiny and questioning. Once a jury's impaneled, what can court watchers expect, when we come back.

(BEGIN Q&A)

Q: Former Los Angeles police officer Rafael Perez, who became an informant when he was caught trying to steal drugs from an evidence room, will talk to Internal Affairs investigators again this week.

How many times has Perez been interviewed by investigators?

A: Twenty-five times so far. Since the beginning of the scandal, more than two dozen officers have been terminated and 46 criminal convictions have been overturned.

(END Q&A)

VAN SUSTEREN: Though his current conduct seems at odd with his defense, Mr. Resendiz faces trial in the coming months.

Guillermo, in the state of Texas, are their cameras in the courtroom, and can we expect to see this trial on television? GARCIA: Under certain circumstances, there have been cameras in Texas state courts. I don't believe that this is going to be one of them, however.

VAN SUSTEREN: Why not?

GARCIA: You'll have to ask the judge.

VAN SUSTEREN: All right, well, let me ask Ed. Ed, is this likely to be a televised trial?

MALLET: Oh, I think if it was, we'd already know it. My experience has been that if all parties agree to let the cameras in, they can come in. I remember last summer watching a Texas trial on television.

But I think that defense counsel would, in most cases, not want the cameras in the courtroom. When you get to the punishment side of the case, prosecutors get to argue for the deterrent effect of the severe punishment. And the more people that are aware of a case, the more significant the deterrents. And therefore, I think that when cameras are in the courtroom, it's easier to argue for the death penalty for the prosecution.

COSSACK: Randy, let's suppose that the defense lawyer came to you and said, "Look, this guy is -- obviously there's something wrong with him." Whether or not it's enough to get a not-guilty-by-reason- of-insanity, who knows. But are you interested in a plea arrangement where my client would plead guilty and you give him life without possibility of parole, and we just end this right now?

HARDIN: Well, we don't have life without possibility of parole in Texas, so anyone is subject to parole that receives less than a death sentence. But more importantly than that is I don't know many prosecutors that would be willing to consider that type of plea with a person there's six to seven homicides, two of which happened in Harris County and elsewhere. I think any prosecutor I know would say if he's going to get life, the jury's going to have to give it to him.

VAN SUSTEREN: Ed...

MALLET: Well, I think more than that. I think that they picked Harris County because of the probability of getting the death penalty here. They certainly wouldn't choose to arrest him on the Harris County warrant when he's got outstanding death penalty cases in other jurisdictions unless they thought that he had the highest chance of the maximum punishment in the last amount of time right here.

VAN SUSTEREN: Ed, what's with Harris County? Why do you say that?

HARDIN: It's not -- Excuse me. Go ahead.

MALLET: Well, our district attorney by policy authorizes his prosecutors to go for the death penalty whenever the elements of the offense make it possible that the jury could assess the death penalty. We have more people on death row in Harris County than from any other state in the United States.

VAN SUSTEREN: But, Ed, I'll tell you, I mean, if you are for the death penalty, this is not one of those necessarily close cases if someone's got multiple charges. You know, you've got sexual assault, a burglary. I mean, this is not such an unusual -- If you're for the death penalty, this would not be a bizarre case to seek the death penalty.

MALLET: The facts that I've read in the newspaper tell me that he turned himself in on the promise of getting life. I have also read in the newspaper that there may be evidence of severely aberrant thinking, that he is not normal, that his mental equipment doesn't work the way God made the rest of ours work.

VAN SUSTEREN: But, Ed, but he was...

MALLET: And those may be mitigating circumstances.

VAN SUSTEREN: ... smart enough, though, to sort of have the wherewithal to say, "I'm not talking to a psychiatrist for the state." I mean, from what we're seeing -- and obviously we don't have the inside scoop on this and we're a thousand miles away or more, but there's nothing that stands out as peculiar, aberrant thinking other than that he's accused of very serious, ugly homicides.

HARDIN: And that's in fact what the Texas insanity statute addresses. It says -- You know, it is basically a right or wrong statute, that he know the difference between right and wrong. And it points out, just as many statutes do, you can't say that somebody's insane just because they continue to commit crimes. And so it's kind of -- I mean, Ed's point, the fact that he engages in aberrant behavior, welcome to the NFL. That's what criminals do. That doesn't make him insane.

COSSACK: Yeah, but that may be -- Let me just say this. That may be a reason. And when it comes time for the penalty, it maybe not the death penalty but it may be life.

But that's all the time we have for today. Thanks to our guests and thank you for watching.

VAN SUSTEREN: Tonight, on "LARRY KING LIVE," John and Patsy Ramsey. They're talking about their new book, "The Death of Innocence." And they're going to take viewer calls. That's live tonight at 9:00 p.m. Eastern, 6:00 p.m. Pacific. And, of course, we'll be back tomorrow with another edition of BURDEN OF PROOF.

We'll see you then.

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