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Burden of Proof

Ray Lewis Murder Trial: Star-Studded Defense Team Embarks on First Courtroom Battle

Aired May 16, 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)

RAY LEWIS, MURDER DEFENDANT: I am innocent. But of course, I've been ordered by the court that I can't speak about the case, so I won't. All I can do is sit back and wait for justice to take its course.

CLINT RUCKER, PROSECUTOR, FULTON COUNTY, GEORGIA: The conduct of this defendant is outrageous!

ED GARLAND, ATTORNEY FOR RAY LEWIS: Ray Lewis had no involvement in bringing about the death of either of these two individuals.

SUNSERIA KEITH, LEWIS'S MOTHER: He said, "Mama, Mama, they arrest me for a double murder." And I say, "What?" He said, "They arrest me for a double murder." He said, "Mama, you know I haven't -- I didn't do that. Mama, I would never do nothing like that. Mama, I would never do nothing to hurt you."

(END VIDEO CLIP)

GRETA VAN SUSTEREN, CO-HOST: NFL star Ray Lewis is on trial for a post-Super Bowl double murder. Today on BURDEN OF PROOF: Prosecutors and a star-studded defense team embark on their first courtroom battle, the seating of a jury.

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

VAN SUSTEREN: Hello, and welcome to BURDEN OF PROOF.

Yesterday, Baltimore Ravens star Ray Lewis didn't spend his 25th birthday on the football field. He spent it in an Atlanta courtroom. Lewis is on trial, along with two co-defendants, for the stabbing deaths of two men after this year's Super Bowl.

ROGER COSSACK, CO-HOST: Jury selection began Monday with 136 potential Fulton County jurors. That group was narrowed down to 88 potential jurors by this morning. The defense attorneys say they're trying to weed out anyone with negative opinions about professional athletes.

VAN SUSTEREN: Joining us today from Washington are Tamara Craig (ph), criminal defense attorney Billy Martin and former federal prosecutor Joe Whitley. And in our back row, Josh Edwards (ph), Liz Mowinny (ph) and Reed Hooper (ph).

Let's go first to Jon Morgan of the "Baltimore Sun," who joins us by telephone.

Jon, you were in the courtroom this morning. What's going on?

JON MORGAN, "THE BALTIMORE SUN": Sure. Well, it's the tedious process of picking a jury, and they're averaging about 40 minutes an individual in their questioning, so I think we may be here all week.

VAN SUSTEREN: Do you have any idea sort of what the defense team is focusing on -- you know, what kind of jurors they're trying to keep off that panel and what kind of jurors they'd like on the panel?

MORGAN: Yeah, it's interesting. You can see the distinctions between the different defenses -- you know, the three co-defendants in this case. And each one of them are -- obviously, has pled not guilty, but there's a different flavor to each one of their defenses. And we're getting a glimpse of that from the questions we're hearing.

For example, one of these co-defendants, not Lewis, is an amateur rap music writer, so jurors are getting questions from his attorney about their attitudes on rap music and whether it is necessarily violent. One of the gentlemen was hit over the head early in this fight with a champagne bottle, and all indications are he's going to claim self-defense. So we're getting a lot of questions about, "Hey, have you ever been attacked by someone with a bottle, a broken bottle, a deadly weapon? What are your attitudes about that?"

And Lewis's team is asking a lot of questions about the pre-trial publicity. "What do you know about the case? Did you watch the bond hearing," which was televised live here. So they're probing a lot of issues related to crime and justice in general, and what specifically people know about the case.

COSSACK: Jon, are you picking up any -- any indications about how the defense team or the prosecution team feel about gender, whether or not they're looking for, perhaps -- the defense may be looking for more men than women, and the prosecution perhaps looking for women than men?

MORGAN: The folks I've talked to so far, the attorneys in the case, seem resigned to having a predominantly female jury. And as they explain it, that's typically the pool that becomes available because people who get off for occupational hardships tend to be males with jobs that demand their -- or preclude them from coming or are able to get out of jury trials. So they -- they seem resigned to that fact, and I haven't heard anyone express any disappointment about that. So they seem fairly satisfied with the panel. There's been some concern about the education level's not as high as they'd hoped for.

COSSACK: Are there any specific questions that are put more toward -- more to women than to men that you'll notice, on the idea that you're going to have more women than men? Are they more -- are they asking questions about how women feel about professional athletes and violence, in general?

MORGAN: They're asking everyone that question. I haven't detected a gender difference. Now, we've only gone through six potential jurors so far, and they've been, I think, about evenly broken down so far, maybe one more woman than man. But they're all getting those questions about "What do you think of professional athletes? Is it fair they're paid as much as they are? Do you play sports? Do you follow sports? Are you a fan?" We had a Braves season ticket holder on the stand earlier today, who says he's not a football fan, prefers college ball. And that leads to questions about, "Well, do you resent football? Do you resent professional athletes?" And that's a big issue, of course, with the Lewis people.

VAN SUSTEREN: Jon, what is the prosecution's theory of the case? What do they say -- and I underline "say" because it hasn't been proven. But what do they say that Ray Lewis did in connection with this double homicide?

MORGAN: Yeah, with that obvious caveat that this is the prosecution's theory, what they've revealed so far suggests that they agree that the victims here were likely the instigators of a verbal altercation, that they may have actually picked the fight, in some degree. And what they say is that these two men, these two men from suburban Decatur, were walking down the street at 4:00 in the morning. Everyone had been drinking.

And one of them is talking very loudly to the other one, his companion, swearing, using racial epithets, spicy language, saying, "Hey, what happened to our ride," and that the Lewis group happened to encounter them, were just walking down the sidewalk at that point, heading for their limousine, the famous 37-foot limousine that was parked down the block. And one of them overheard one of the victims using this language, thought it was directed at him and confronted him about it. One thing led to another, and you had a fight.

Now, the question is what led to what after that? And at that point, things break up. But what the prosecution is saying is that at that point, one of Lewis's companions, one of the co-defendants, confronted them, confronted one of these men. The fight then broke off a little bit. They exchanged some words, and then the Lewis group got into the limousine. And then some of the Akron people or -- I'm sorry, the Decatur people, who were originally from Akron, then picked it up again. Some of their companions came along.

There was some shouting, and that the -- ultimately, members of the Lewis group, including Ray Lewis, rushed them, beat -- chased them down, beat them up -- one of the men was actually picked up and thrown to the pavement -- and then stabbed them. So we had two men stabbed in the heart within -- all in the space of about a minute.

COSSACK: All right, Billy Martin, you're -- you're Ray Lewis's attorney. What you want to do is individualize your client. What do you say to this jury to make them know that -- that your client's an individual? BILLY MARTIN, CRIMINAL DEFENSE ATTORNEY: Well, I think what you do -- and any time -- a lot of my clients are professional athletes who happen to be accused of criminal wrongdoing, and it's a very difficult task defending celebrities and especially professional athletes because they are so outspoken, so well-known, that authorities, whenever there is an athlete like Ray Lewis involved in an incident, even though he may be the least culpable of the three, of any of these people, the case is known because Ray Lewis is involved.

So if I were Ray Lewis's attorney, I would want people to see the Ray Lewis who's worked his way through college. You saw his mother earlier in the clip today talking about what -- how her son felt right after the charges were filed and how emotional he is. I want the jury -- I would want the jury to know that he's very distraught, that he was defending himself...

VAN SUSTEREN: But you know what, Billy?

MARTIN: ... and he's a very hard worker.

VAN SUSTEREN: At the same time -- I mean, that sounds terrific, but there are some things you don't want the jury to know about him, as well, is that he's had a little bit of trouble, that there's a little bit of an unsavory side of him.

But let me go to Joe. Cuts both ways, having a celebrity defendant. Sometimes it hurts the prosecution, doesn't it?

JOE WHITLEY, FORMER FEDERAL PROSECUTOR: I don't think he needs to overreact. One of the things that happens sometimes is prosecutors, as we saw in O.J. Simpson, try to do more than they might need to do. So what I think they need to do is keep it absolutely as simple as possible. This is a case of murder, that Ray Lewis is responsible for it, that he orchestrated this with his two colleagues, that they pursued these people, brutally assaulted them and killed them at that intersection in Atlanta. There needs to be a story that the prosecution tells that's very simple and understandable.

VAN SUSTEREN: Do you think, though, that sometimes celebrity clients, when they have a lesser involvement in sort of a group crime, you know, that sometimes the prosecutors single them out because that's sort of the star power, that's what makes the prosecutor shine? Is that a fair criticism of prosecutors?

WHITLEY: I think that's a fair criticism, Greta. I think there's a lot of prosecution where the person being prosecuted is the reason for the prosecution sometimes. And Billy could talk about that. Celebrities are, in fact, prosecuted because of their status. And we remember "Bonfire of the Vanities" talking about, you know, looking for the right defendant. That case is a good example.

COSSACK: All right, let's take a break. When we come back: defending an NFL all-star and avoiding the legal landmines of sharing the defense table with two other defendants.

Stay with us. (BEGIN LEGAL BRIEF)

A provision in Ohio outlawing dueling has been repealed. The law, passed in the 1800s, made dueling a fourth-degree felony punishable by up to 18 months in prison.

(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 onto 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)

LEWIS: I'm very sorry about the tragedy that happened, that occurred in Atlanta. I mean, my sympathy goes out to the families, the friends of both of the men that died. I know their hearts are broken.

(END VIDEO CLIP)

COSSACK: Today in Fulton County Superior Court in Atlanta, attorneys for Ray Lewis continued to interview potential jurors for his murder trial. Defense lawyer Ed Garland asked if any of the jurors listened to rap music regularly. A co-defendant's counsel asked potential jurors if they had ever been forced to use a weapon in self-defense. Three defense, including Lewis, are being tried together.

Billy, it is the defense lawyer's nightmare to have more than one defendant at that defense table because the evidence could be so much on one and not so much on the other, and you're always worried that it's going to spill over in front of the jury. How do you combat that?

MARTIN: Maybe yes and maybe no, Roger. There's a lot of times when you have three -- like in this case, you have a murder. You have two people who are dead in a very gruesome and grisly homicide. A lot of times, what you want, if you have multiple defendants, is to have one of these. You want to be able to point the finger and say, "It wasn't me. It was him." And all they need to do is get one juror to have reasonable doubt, and the prosecution is not going to be able to meet its burden of proof beyond a reasonable doubt of all 12, if they can reach one juror just by confusing the issue, so that they don't know who did what.

VAN SUSTEREN: Let's go back to the phone to the "Baltimore Sun"'s Jon Morgan.

Jon, can you tell me what the -- give me some of the color in the courtroom. What's the judge like? What are the defense lawyers like? MORGAN: The judge, Alice Bonner (ph), is the anti-Ito, I think. She's -- like many people, has learned a lesson from the O.J. Simpson trial and is intent on keeping the pace up. And she's moving very briskly. And if a lawyer is not prepared to argue a motion, she denies it summarily and gets on to the next thing. So that's been, I guess, personally, a pleasant surprise for all of us that we're not going to be here for the rest of our natural-born lives.

We're seeing some family members of Ray Lewis are starting to appear. They're in active support for him. So far, we haven't seen victims' family members yet, but we expect that they'll be coming in. And other than that, it's a lot of very good lawyers at work, which is actually kind of a fun thing to watch. You're seeing a lot of charm, people trying to charm the jurors, asking very insightful questions. So it's a good show.

COSSACK: Joe, one of the problems, I suppose, in this case, for Ray Lewis in particular is, is there seems to be conflicting evidence regarding his background for violence. He, you know, claims one thing, and others claim the other. What's -- suppose he got up on the witness stand and said, you know, "I'm a peaceful -- I'm a peaceful man, and I don't like this kind of violent activity," and looks at that jury and says, "You know, I'd never do something like that." Problem?

WHITLEY: Well, it is a problem because he opens the door to -- he puts -- he puts his character into evidence, says he has good character. Then that character can be attacked by the prosecution through the admission of prior conduct that's inconsistent with that, which might include -- I think maybe the judge has ruled on this, but could have included some of the batteries toward women earlier in his life.

COSSACK: All right. And even though the judge has already concluded that it can't come in, there's a way that you can somehow mess yourself up...

VAN SUSTEREN: Oh, prosecutors...

COSSACK: ... and get it in.

VAN SUSTEREN: Prosecutors always find a way to get prior bad acts of defendants. And I say that very sarcastically.

Billy, who wins, who loses with the media hounding this case? I mean, does it help the defense or does it help the prosecution or neither?

MARTIN: I don't think it helps either. I think that because Ray Lewis is the name that everybody hears, if you think of the other two co-defendants, most people in America would have a hard time thinking of the names of those other two defendants, young men who were charged. But I think it hurts somebody like Ray Lewis because he walks in there, and he has to present an image to a jury inside that courtroom of being peaceful, of being quiet, of being somebody who is capable of following the law. So if anybody would be hurt, it's Ray Lewis, the celebrity.

VAN SUSTEREN: But Joe, you -- but doesn't the prosecutor run the risk of having a defense lawyer who's going to say, "Look," you know, "the reason Ray Lewis is here is because he's a big star, this prosecutor wants to be a big star, this prosecutor wants to be the one"?

MARTIN: Absolutely.

VAN SUSTEREN: "You know, all Ray Lewis was, Ray Lewis was here, and now he's sort of getting dragged into it because of his rogue friends"?

MARTIN: Yeah, but the -- that's absolutely what I -- if I were defending Ray Lewis, that's exactly what I would say. He's not accused of doing any stabbing. If there's no agreement -- Greta, you know, having defended felony murders before...

VAN SUSTEREN: Against you.

MARTIN: ... against me -- you know that whenever you have a felony murder case, you have to show that there was some agreement in advance, there was some acting in concert. If there's a felony here, it's supposed to be aggravated assault, the assault on these decedents, they had to agree to commit that aggravated assault. They can't show that. It's a brawl.

VAN SUSTEREN: Joe, if it is a brawl and one stabs a knife into the heart of the decedent, what about the guy who's been involved in the brawl and didn't think it was going to escalate that far? Legally, are you in for the whole murder if you participate in any way?

WHITLEY: I think if you're part of a melee, what happens is part of that melee. As a prosecutor, I would argue that, you know, you're responsible for it, that you should have contemplated that might have happened, to include the use of weapons that might have been purchased earlier in the day, or whenever they were purchased in this particular situation, that could have been utilized. So I think it should have been contemplated.

VAN SUSTEREN: So to get out of it, you'd have to -- you'd have to fully retreat.

WHITLEY: You'd have to retreat.

VAN SUSTEREN: You'd need to have strong evidence of retreat, if it's a brawl.

COSSACK: But what happens, Joe, if Ray Lewis hypothetically gets up on the witness stand and says the following, "You know, I got involved in this fight, and I shouldn't have been involved in a fight. But I'm not a stabber, and I didn't know these guys were a stabber. I didn't know there was a knife there. I was in the fight, I wasn't in a stabbing." Is that a defense? WHITLEY: It is, and I think if he -- but if he does that, he opens himself up to cross-examination, Roger, and there could be lots of things that they don't know about that the prosecution might have. But if he says, "I was never part of this. I never directed my buddies to do this. I'm sorry it happened," I think it is a defense. I don't think we're going to see him on the witness stand, however.

VAN SUSTEREN: You know what? You...

(CROSSTALK)

COSSACK: ... three people to have immunity, probably, would stop that, Greta.

VAN SUSTEREN: Well, I was just going to say the thing that'd probably be the most terrifying for me if I were at the defense table, without knowing, but just sitting here...

COSSACK: Right.

VAN SUSTEREN: ... you know, 1,500 miles away, is knowing that a woman in that limousine got immunity from prosecution...

COSSACK: You bet.

VAN SUSTEREN: ... and I have no idea what conversations occurred in that limousine afterwards. But Billy, wouldn't that send shivers up your spine if you're the defense lawyer?

MARTIN: Absolutely. According to some of the accounts in the newspapers, Ray Lewis and others are alleged to have said to the driver, "Do not tell who was in the car." Now, obviously, there were statements made in that car that none of the defendants who are on trial are going to want to have repeated. And if there's immunity given -- one of the things, Joe -- you remember, Joe and I -- I remember our days as prosecutors together. One of the things you, as a prosecutor, you have in your hip pocket is the ability to give immunity to somebody who may be involved, who may know something, and you want them to come clean.

COSSACK: But only if they...

MARTIN: And they've got that here.

COSSACK: ... testify truthfully, right, Billy?

MARTIN: Yes.

COSSACK: That's the only way you give them immunity.

MARTIN: Absolutely.

COSSACK: Yeah, right. But when they're facing a lot of years in jail...

COSSACK: Sometimes... VAN SUSTEREN: ... suddenly the truth can be rather fluid.

But we need to take a break. Up next: How long is the trial of Ray Lewis expected to last? And if convicted, what penalty does the NFL star face?

Stay with us.

(BEGIN Q&A)

Q: When was the last time juror compensation rates were raised in California?

A: 1957. Jury duty in California pays $5 per day. The Assembly proposes raising it to $12.50/day. The state supreme court chief justice thinks the rate should be $40 a day.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: NFL All-Pro linebacker Ray Lewis is on trial in Atlanta for a double murder. Fulton County prosecutors have given immunity to at least one of the women riding in Lewis's limousine on the night of the stabbings in return for her testimony. Also added to the prosecution's witness list, DNA expert Henry Lee, who's best known for his forensic analysis in the O.J. Simpson murder trial.

Joe, this is a multiple killing in the state of Georgia, which has a death penalty. When a prosecutor makes a decision whether to seek the death penalty or not, what are the factors a prosecutor thinks about in the case where a prosecutor has the lawful right to do so?

WHITLEY: Well, how horrible the offense was, how -- and also, you'd look at was it premeditated? Was it...

VAN SUSTEREN: How about beating a guy up?

WHITLEY: Well, in this situation...

VAN SUSTEREN: First.

WHITLEY: ... there is an issue here about self-defense, or was there self-defense. And what I think you have here at the beginning of this struggle is, is a fight's going on. So it's difficult to say that was premeditated. So I think in this situation, and also looking at the demographics of Fulton County, the jurors there are going to be -- a majority are Hispanic or African-American, and I think they're not going to be in favor of the death penalty. And also, another issue is the lesser included offenses. There is aggravated assault in this indictment. So the jurors will have options.

I think if they had the ultimate option of the death penalty, I think they would think that's overreaching by the prosecutors. VAN SUSTEREN: Does it make a defense that apparently -- and I say "apparently" because the evidence has not been presented in court or proven -- that the decedents themselves may have been in the instigators? They didn't deserve to die, but that they may have been the instigators. Does that bear on a prosecutor's decision?

WHITLEY: It does bear -- it does bear on the prosecutor's decision to seek the death penalty. In this case, they really opened the door, if you will -- that's the allegation -- to this melee that erupted. But what happens next, according to what we hear, at least in terms of what will be presented, is that they were pursued and attacked and killed after -- when they were trying to suspend the fight themselves, the two victims.

COSSACK: You know, Billy, what's real hard to believe in this case is the -- is any notion of self-defense. I mean, we see pictures of Ray Lewis. He's an All-Pro linebacker. I mean, and the victims were small men that weighed about 150 pounds.

VAN SUSTEREN: And it's two versus three.

COSSACK: And two versus three. I mean, the notion of self- defense here is laughable.

MARTIN: Well, Roger, it's not, and let me tell you why, as a defense attorney, I can say that. Number one, I think the defense is going to present these two young men as dope dealers. One of the young men had seven bags of marijuana in his pocket when found. They were out there on the street corner close to 4:00 o'clock in the morning selling dope. That's what they're going to say. So if they're going to dirty the images of anybody, they're going to go after the decedents.

Also, there were shots fired. The police have been able to verify that on the body of one of the decedents -- I think it's Lowlor (ph) -- when they went to recover his body, he had lain (ph) shell casings on his -- in and -- on and around his body, which shows that somebody near that melee, according to Lewis and the co-defendant, somebody on the side of the decedents had a 9-millimeter gun and was shooting that gun, and they have shell casings.

So self-defense is going to be there, and I think it's going to let the jury see that what happened out there, while it should not have resulted in a death, may have resulted in a death because of the actions of these two young men. It's going to be a brawl...

VAN SUSTEREN: Let me...

MARTIN: ... in the courtroom.

VAN SUSTEREN: Joe, that raises an interesting issue. Let's say that one of the men was stabbing the decedent, but that another man was standing 10 feet away, hypothetically, but that the first one has self-defense because there was a gun being pulled on him. Does the second one, who is removed -- does that person have the same self- defense? WHITLEY: I think there's a different situation. I don't think that the prosecution can reach that other person 10 feet away if they're not involved in the fighting or activity. So I think if you're defending this case, you're going to want to say, "Well, he was not aiding and abetting. He wasn't an accessory to that particular act." But the prosecution's going to say the opposite. They're going to say that he was in the -- he was in there in that vicinity, so he was there to help that other individual out, had he needed the help. So it's all -- a lot of this is going to be common sense for the jurors.

VAN SUSTEREN: And a lot, of course, is unknown, at this point, as to what were the facts that night.

COSSACK: This is going to be a real murder trial, and we will keep you up to date on BURDEN OF PROOF.

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

Today on "TALKBACK LIVE": Indiana officials call it one last chance. What lies ahead for controversial basketball coach Bob Knight? That's at 3:00 p.m. Eastern time, noon Pacific.

VAN SUSTEREN: And tomorrow on BURDEN OF PROOF, the Columbine report. What new information is found on a CD-ROM just released by Jefferson County authorities? Join us then for another edition of BURDEN OF PROOF.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com

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