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Burden of Proof

Dispute at Youth Hockey Game Ends in Dad's Death

Aired July 11, 2000 - 12:30 p.m. ET

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

GRETA VAN SUSTEREN, CO-HOST: A father killed by another parent at a hockey game.

ROGER COSSACK, CO-HOST: Was it murder, manslaughter or self- defense? That's today on BURDEN OF PROOF.

(BEGIN VIDEO CLIP)

GERARD BUTLER, PROSECUTOR: At one point, Mr. Junta, who was not dressed in any hockey uniform, came onto the ice screaming at Mr. Costin and demanding that he do more to intercede with these children.

THOMAS OLANDI, DEFENSE ATTORNEY: In response to that, instead of stopping the physical activity, the deceased skated right over to Mr. Junta's position, swore at him and said, that's what hockey is all about.

(END VIDEO CLIP)

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

COSSACK: Hello and welcome to BURDEN OF PROOF.

Thomas Junta pleaded not guilty to manslaughter charges after beating another father to death at their children's hockey game. Junta was angry that Michael Costin, the boy's coach, had lost control of the play on the ice.

VAN SUSTEREN: Which father started the fight is still in dispute.

Joining us from our Boston bureau is former federal prosecutor Dan Small. Also joining us from Boston is criminal defense attorney Henry Owens.

COSSACK: And here in Washington, Greg Petoubis (ph), criminal defense attorney Bernard Grimm, and Doug Flowers (ph). And in the back, Catlin McKelvie (ph) and John Bradford (ph).

VAN SUSTEREN: But first we'll go to CNN national correspondent Martin Savidge who's joining us from the skating rink in Reading, Massachusetts.

Martin, what can you tell us about the facts giving rise to this murder -- or this tragedy.

MARTIN SAVIDGE, CNN NATIONAL CORRESPONDENT: Greta, the facts are that it occurred, the altercation, at this ice-skating rink last Wednesday. Let me tell you what we know, basically -- and this is what authorities have heard -- is that during that day on Wednesday, there was an ice-skating session that was going on involving mostly 10-years-olds on the ice. It was sort of "stick play," they refer to it as.

The children decided to get together and put together a pick-up game of hockey. At that time, Michael Costin was acting as sort of the goalie. He was the only adult on the ice. He was also the victim. And on the sidelines was Thomas Junta. He had two children that were on the ice playing in that game.

Junta apparently became alarmed when he thought that the game was getting too rough. Apparently there had been some stick slashing and one child nearly had a broken nose. He went on the ice and he confronted Costin. And apparently at that time there were some words exchanged, possibly even some shoving. The two men were broken apart, and then Junta was ordered to leave the ice-skating rink, not to come back. He did come back just as Costin and his three boys were getting ready to leave. It was then that the fight broke out seriously.

In the scuffle, there was reportedly some blows that were delivered to the side of the head of Costin, and also to his neck, and he fell down and hit the floor. Some reports say that his head was actually beaten against the floor. There was as many as 25 to 40 people inside the building at the time of the altercation -- excuse me -- and the victim died two days later -- Greta.

VAN SUSTEREN: Martin, at the second altercation between the decedent and the defendant, were there adult eyewitnesses? And if so, did either of the -- did the witnesses say who sort of started it?

SAVIDGE: There were adult witnesses. As we mentioned, 25 to 40 people in there and a number of them were adults. Police who have investigated those there say that, however, what everyone saw is not exactly the same thing, nor was everybody focused on the attention at the moment that it happened. So it is still conflicting. The attorney for Mr. Junta is reporting that his client was only responding in self-defense.

COSSACK: Martin, what's the feeling of the community? I see that you're standing in front of the ice rink where this happened. Do people feel that the defendant in this case has gotten off easy -- low bail, the charge?

SAVIDGE: There are a lot of people who are upset. The family members especially at a wake last night were very upset that Thomas Junta was released on $5,000 bail. And that reflection has also been heard on the radio stations, talk radio here in this community; people upset not only about the low bail, but also reportedly that Junta was allowed to leave the area, essentially had the weekend off with his family, even though that the victim died on Friday. And so he did not have to turn himself in until Monday morning. Some people say that was inappropriate, and others are implying that that was a sign of favoritism from the police force.

VAN SUSTEREN: Henry, explain to me the Massachusetts law. The defendant has been charged with manslaughter. It seems to me that murder may have -- he may not be guilty of murder, but murder is something that some prosecutors might charge in ordinary jurisdictions because the fight went back, had a second stage to it.

HENRY OWENS, CRIMINAL DEFENSE ATTORNEY: Well, right now, as you said, he's being charged with manslaughter, and that is an unlawful killing without malice. I think some people could argue, why wasn't he charged with second-degree murder? And I might also add, he still could be indicted for second-degree murder. But right now, he is charged with the unlawful killing, which is manslaughter without malice. And that is punishable by any term of years up to 20 years.

COSSACK: Dan, normally -- I must tell you that where I used to practice law, when prosecutors were faced with facts like this, they usually didn't start off with such a low charge. They started off with a murder charge, first-degree, second-degree. And as the facts came forward -- and maybe there wasn't enough facts to support one of those first- or second-degree murder charges -- then they went down to a manslaughter. This is so rare, Dan Small, that I think they would start off with a manslaughter. Why?

DAN SMALL, FORMER FEDERAL PROSECUTOR: Well, I think it is unusual, but it's an unusual case. You have a fight between two adults, you don't have -- as Henry said, you don't have malice, you don't have intent to kill. And I think, actually, prosecutor has done a fairly brave thing by bucking a little bit of the public sentiment and saying, look, I'm going to call it as I see it, and what it is is manslaughter; this is not intent to kill, it's not an act done with malice. And that's going to depend on the facts at trial.

VAN SUSTEREN: Bernie, you know, I share Roger's, you know -- it seems odd that this is not charged with the murder, just the fact that there seems to be a second act, almost one of aggression, if, indeed, the defendant is the one who initiated this second fight. Are you surprised?

BERNARD GRIMM, CRIMINAL DEFENSE ATTORNEY: Yes, I am surprised, because in a lot of jurisdictions, D.C. and Maryland being one of them -- and I'll yield to Dan and Henry and our experts up in the north -- when you are in a fight and you -- and it's broken up and you know, ultimately, there's going to be a dangerous situation, you cannot exercise -- by law, you cannot exercise self-defense by going back to the fray, creating a fight and then claiming self-defense. In other words, you can't go to a dangerous situation and know there's going to be a fight, and then claim later on self-defense. By law you can't do it.

VAN SUSTEREN: Or even claim there was a horrible accident.

Yes, Henry?

OWENS: Greta, if I could just interrupt.

VAN SUSTEREN: Yes, go ahead.

OWENS: I think what we might be seeing in this case is another reliving of the Woodward case. As you know, the D.A. in the Woodward case is the D.A. in Middlesex County, Assistant D.A. Coakley. She prosecuted the Woodward case. They were charged in that case with overcharging, and I think you might have, politically, an over- reaction. We do not want to make the same mistake we made in Louise Woodward. We're not going to charge him with murder, we're going to charge him with manslaughter. So I think that may have been a factor.

COSSACK: But Henry...

VAN SUSTEREN: Does this go to a grand jury for formal charging in Massachusetts, Henry, or does this -- does a prosecutor makes the charge in your state?

OWENS: Right now, the prosecutor has made this charge, has filed a complaint for manslaughter. But they could make a presentment to a grand jury, and that grand jury could come back with a murder indictment.

COSSACK: Dan, you know, you can always go up. By that I mean -- or go down, rather. I mean, if you file a murder charge, you can go to a jury and say, ladies and gentlemen of the jury, you've heard the facts. I ask you to find the defendant guilty of manslaughter. But you can't go in and file a manslaughter charge and say, you know, you've heard the facts, now find him guilty of murder. It seems to me that, you know, without any facts other than the fact that we know that there's a dead father here, the notion of coming in and eliminating a more serious charge just seems unusual.

SMALL: Well, I think that, as Henry said, you can go up at this early stage. It's true once you get to an actual trial, then you're limited to the highest charge that you brought. But I think going carefully in a case like this, step-by-step, I think Henry is right: They don't want to be accused of overcharging, and manslaughter is a serious charge. It's a 20-year offense. Apparently he did return to the scene, but he returned to the scene, supposedly, to pick up one of his kids, and that that's what happened.

VAN SUSTEREN: And I've got -- and you know what, Dan, I've actually got a theory -- and Roger and everybody else too. I bet that there's...

COSSACK: I'm not surprised at that.

VAN SUSTEREN: No, I bet there is some other information that the prosecutor has learned in the course of its investigation that may have cast some doubt on whether or not there was the malice intent or who was the aggressor. I bet their investigation suggests something else.

COSSACK: I hope you're right. That's probably the only logical answer there is.

SMALL: Well, remember, the victim has a 36 prior arrests or citations on his -- he's got a long criminal record, and that may or may not come up, in part depending on what the charge is. If the charge is murder, it's much more likely that the victim will end up being put on trial for his prior criminal record.

VAN SUSTEREN: All right, we're going to take a break. Manslaughter or self-defense? That's next? Stay with us.

(BEGIN LEGAL BRIEF)

The ACLU has filed a federal lawsuit challenging a Kentucky law requiring the placement of a Ten Commandments monument outside the Capitol.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: 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. And 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)

GERALD BUTLER, PROSECUTOR: The two men then squared off, exchanged blows and Mr. Costin, who stands about 6'1", weighing at 275, approximately 100 pounds heavier than Mr. Costin, quickly gained the upper hand, threw Mr. Costin to the floor, and began to beat him around the head and neck.

THOMAS ORLANDI, DEFENSE ATTORNEY: As they say in life, there are two sides to every story, you know. Out comes the deceased and an altercation takes place. As my brother has said, that my client may have had some problems in the past, when he has no criminal record. The victim has also had problems in the past and has had many convictions and has assaulted and battered police officers. I say that so that we may understand there are two sides to every story.

(END VIDEO CLIP)

VAN SUSTEREN: Bernie, the size, the defendant is about 100 pounds more than the decedent. Does that create problems for a defense attorney, if self-defense is a defense?

GRIMM: If you are conceding that the tissue is self-defense, obviously the jury is going to want to know. You've got one guy who has got 100 pounds on the victim, clearly he's got upper hand. Did he need to really pummel him into submission?

COSSACK: Henry, what does it mean in the sense that the decedent had a long -- apparently, allegedly, a long list of violent convictions for violent acts. How is that going to play? what do they have to show to get that into evidence? and will that get into evidence? OWENS: I think the defendant is going to have an uphill battle. I think the law is very clear. Unless the defendant knew at the time of this incident, the background of the victim, then argument can be made that that is inadmissible, irrelevant because the defendant did not know about this. So what happened back in 1970 is irrelevant.

VAN SUSTEREN: Henry, how big is this community where this happened? is it likely that the two, the decedent and the defendant, knew each other? and that the defendant might know of the prior problems that the decedent had?

OWENS: It's my understanding, reading the various news reports, that they did not know one another prior to the date of this incident. And I might also add it's my understanding some of this background of the decedent goes back to 1970.

COSSACK: Dan, what will they have to -- Henry says he is going to have to show, in fact, that they knew or that the defendant knew about the violent background. Is just pure knowledge enough? aren't they going to have to show that there was also reason to believe that he was defending himself? We heard the other lawyer. We heard the prosecution's lawyer say: Look, he's 100 pounds bigger. He knocked him down and then continued to beat him.

SMALL: Well, it's going to depend on the facts at every stage, who initiated it? Again, the defendant supposedly came back. What happened during the fight? and what happened at the end? those last critical minutes where apparently the victim was on the ground.

But still, the defendant is going to be in a position of saying: whatever else you say, it was a two-way battle and I was concerned for my own safety. And I was particularly concerned, if he can say he knew it, I was particularly concerned because I knew this is a guy who had fought cops and everybody else.

COSSACK: You know, you know, you know, Dan, but wait a minute. Let's just say that he says: I knew this guy was a tough, violent guy. I was worried about my own safety. And now there's a witness who says: Yes, that's right, you're 100 pounds bigger than this guy, you knocked him down. The law says that once there's no more of a -- you're not in fear for your own safety, that's the end of it. You can't continue pummeling somebody.

SMALL: It's going to depend on those last few critical moments, I agree. If, in fact, the victim was on the ground, underneath this big guy, it's going to be a real tough sell for self-defense.

VAN SUSTEREN: All right, let me talk about the worst nightmare for defense attorney, Bernie. The decedent had some children and the children witnessed this beating and the death of their father on the ground outside this rink. The prosecution is probably going to call one of the children. As a defense attorney, do you cross-examine the decedent's child?

GRIMM: A couple of points, depending on the age, you would probably seek a hearing outside of the jury to determine whether they are competent to testify. Their ages might be so tender that they can't differentiate the truth from a lie, for reasons that they're just simply children.

VAN SUSTEREN: Assume competent because they're probably one of the hockey players, one of the witnesses.

GRIMM: Right, assuming they are competent, you have major, major problems, because the emotion and the devastation on a child usually doesn't manifest itself on direct, it usually manifests itself on cross-examination. And once you start getting into it and a child is crying uncontrollably, that case is over right there.

VAN SUSTEREN: You know what I would do, or typically did, I mean, obviously each case dictates its own response, but usually you leave children alone, as a defense attorney. In these instances, you let the child, even if the child provides testimony that's devastating to the defense, you still leave the child alone if this is in front of a jury. And you try to build your case through other witnesses.

GRIMM: I agree.

COSSACK: Henry, are they going to have a tough time finding a fair jury in this area? it's a small town, we've heard from Marty Savidge, the people are at least, preliminarily upset regarding the low bail, and the fact that he didn't -- he had a weekend off, the defendant.

OWENS: It may be somewhat difficult to find a jury. But you have to understand, this case, in all probability, will not be tried until some time next summer, or some time next fall. In that case, it's going to be, I hate to say it, I don't want to sound crass, it's going to be old news at that time. But I think with the proper questioning, I think fair and impartial jury can be selected in Middlesex County.

COSSACK: All right, let's take a break. Up next, sports rage, was this an isolated incident, or the most violent example of a growing trend? stay with us.

(COMMERCIAL BREAK)

(BEGIN Q&A)

Q: What pop star is being sued by a Beverly Hills jewelry store for allegedly taking a $1.45 million watch out on loan and refusing to return or pay for it?

A: Michael Jackson. Jackson allegedly returned the watch four months later, but the owner claims it is too scratched to sell as a new item.

Source: Reuters

(END Q&A)

(COMMERCIAL BREAK) (BEGIN VIDEO CLIP)

AUGUSTINE COSTIN, VICTIM'S FATHER: How would you like to see your father being killed and pleading with the man who is killing him, pleading to stop hitting my father, don't hit him anymore? It is a terrible thing.

(END VIDEO CLIP)

COSSACK: Dan Small, is this just an example of perhaps the most egregious example of something that we've seen more and more of, which is this rage, this sports rage of parents at their games. Many years ago, when my son played soccer, I saw absolutely normal people turn into crazy people at these games. Is this now something that's involved? I know you have a background in this.

SMALL: Well, I was a football referee for some years, Roger, you are right. And there is no question that both as referee and a parent and a lawyer, I have seen this terribly increasing trend, more and more parents getting more and more improperly involved in their children's sports, and it leads to this kind of thing. But these incidents are now happening all across the country. And it is a real concern.

COSSACK: So what do you do? First of all, we need to rephrase the question, what can you do? is there anything that can be done?

SMALL: I'm not sure what you can do.

COSSACK: Should you ban parents from coming to the games?

SMALL: You can't ban parents. You can work with parents from the sports side, and you can act very quickly and prosecute anything that happens off the field.

What a terrible irony here, you have a problem with violence on the game -- in the game, which leads to a death outside of the game. That's not the message we want to send.

VAN SUSTEREN: Bernie, I always wonder when we have instances like this, and we have reported a couple over the past year, parents getting into problems, criminal problems at sporting events, I wonder if it just that we are not just reporting it more, and that it really always really did exist?

GRIMM: I attend both my daughter and my son's things, I'm very vocal on the sideline. I've never gotten physical, although I try to lift, and where my muscle shirts before I go, so when I yell they know what I mean. But it is a problem. Especially here, hockey, the phrase that the referee said, Costin said was, in response to the father's comment, "it's getting a little bit rough out there." He said, "That's the way hockey is supposed to be." And it is, but when you look at the industry of hockey, unfortunately, people go for the violence, they love the fights. And that's a sad part about it.

VAN SUSTEREN: Are the parents cheering the kids on in these hockey games.

GRIMM: Oh, yeah.

VAN SUSTEREN: I mean, in terms of violence. I mean, there is a big difference between being violent and being a very aggressive, good sports parent.

GRIMM: When I view games that involve small children, and I'm talking about 10 and under, you see a select few parents cheering cheap shots, cheering low blows, things that I just didn't do when I played.

COSSACK: Henry, I mean, from a social standpoint, I guess we are maybe a little far from law, but I mean what does that say, in terms of this increasing amount of rage, this increasing amount of anger that we see parents visiting through their children at sporting events? and what part does the law have to play in this?

OWENS: Well, I think the law has to play some role, but I think it is the larger picture of violence in society today, whether it be at a movie theater, or the video games, we live in a very violent society today, and we teach young people at a very young age to fight back, to reach out and punch someone. And we don't teach people how to resolve differences.

I think what we are seeing today is an example of this violent nature of our society being manifested in young people and adults that go to these sporting events. I think it is most unfortunate.

COSSACK: Is hockey a particular sport that causes this? You know about the old joke about the hockey game, I went to see a fight and a hockey game broke out?

OWENS: Exactly, and I hockey, in itself, is a sport in which almost condones fighting because even the pros, they take off their gloves, start fighting, and the referee just stands back and watches. And somehow that has become part of the sport, and it shouldn't be part of the sport.

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

Tonight on "NEWSSTAND": Napster goes to Washington to defend itself against charges of music piracy. I'll be taking your phone calls and e-mails. That is at 10:00 p.m. Eastern.

COSSACK: And before your relationship ends up in court, tune-in to CNN's "TALKBACK LIVE," get expert help from Dr. Phil McGraw. That is today at 3:00 p.m. Eastern, noon Pacific.

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

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