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Burden of Proof

Shrimp Boat Survivor Charged with Murdering Boat's Captain

Aired July 24, 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: He was the sole survivor of sunken shrimp boat, but now prosecutors are charging him with murdering the boat's captain.

(BEGIN VIDEO CLIP)

ALVIN LATHAM, SUNKEN SHRIMP BOAT SURVIVOR: A bigger wave came right to the window, started taking on water. He said "my leg is caught." I don't think he knows what it was caught on. I tried all I could to try to free him.

(END VIDEO CLIP)

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

VAN SUSTEREN: Hello, welcome to BURDEN OF PROOF. Roger is off today.

Last week, off the coast of Louisiana, sole survivor Alvin Latham was plucked from the sea, after the shrimp boat he was on sank in a storm. Today, he is scheduled to be arraigned for murdering the captain of "The Bandit."

Investigators say the two men fought over the only life jacket on the boat.

Joining us today from New Orleans is former U.S. attorney John Volz. In Los Angeles TV's Judge Joe Brown. And here in Washington, Jonathan Patterson, trial attorney Bernard Grimm, and Matt Ridder (ph). An in our back row, Stephanie Holcum (ph) and Merrit Johnston (ph).

And joining us by telephone is the spokesperson for the Plaquemines Parish John Marie.

John, what can you tell me about the status of the accused?

MAJOR JOHN MARIE, PLAQUEMINES PARISH SHERIFF'S DEPT.: About an hour and a half ago, in Plaquemines Parish court, and he is being held on a $200,000 bond.

VAN SUSTEREN: What it is it, John, that it is the prosecution claims he did? MARIE: Well, his story -- you know, we had nothing to suspect. We have a lot of boating accidents down in south Louisiana, quite naturally, and in our parish, we have a lot because of the fishing industry and the oil industry. So we had nothing to suspect about the boat going down and him being saved after several hours -- many hours in the water.

But when we discovered the body, we noticed some wounds on the body that were very suspicious. The next day, the body was positively identified as Ray Leiker through fingerprints, and the autopsy performed, the cause of death was undetermined, pending an investigation.

Immediately, we brought him in Alvin Latham and, as our detectives walked up to him, he said: I guess I'm in trouble. And probably about 20 minutes after being taken into custody, he confessed with the story that the two men fought over the life jacket in stormy seas that particular night, on Sunday. July 16th.

VAN SUSTEREN: John, you are a former prosecutor from Louisiana. He has been charged with murder -- let me back up. We don't have John Volz, yet.

Let me go to you, Bernie. Bernie, here's a story of a fight on a boat over one life preserver. What's the defense likely to be?

BERNARD GRIMM, TRIAL ATTORNEY: Well, it is second degree murder, as you were leading into because there's no plan. There was no plan to kill this person, it arose during the heat of the moment. If tradition and maritime law serves this, then the captain is supposed to go down in the ship. But in a situation where there is only one life jacket, he doesn't really have a superior right to it over anyone else. And it is unfortunate. But his statement is going to send him to prison.

VAN SUSTEREN: All right, well, let's go to John Volz now, who can now hear us, who is in New Orleans.

John, the defendant has been charged with second degree murder. Why do you think the prosecutor chose second degree murder, as opposed to perhaps a first degree, or more serious murder charge, or even something less, like a manslaughter?

JOHN VOLZ, FMR. U.S. ATTORNEY: Well, because I certainly think that would be close to impossible to prove a murder charge against this individual, because I don't think there would be the premeditation that would be necessary for the formation of the intent. However, I think second degree murder and/or manslaughter are distinct possibilities.

The case raises a number of interesting questions. The justifiable homicide in Louisiana is -- the definition of that is, if you are in fear of great bodily harm or death that you have a right to take another person's life, whoever is threatening you.

So, you know, I don't know what the defense is going to be, if there will be a defense, there will be a trial. But certainly, I think murder would be overcharging the case, although there would be some responsive verdicts. But I think it is certainly a possibility of second degree or manslaughter, depending on the facts as they development, possibly who was the aggressor. We're not really sure about that, at least from the news accounts we're not. And when I say the aggressor, the person who attacked the other. Somebody had to start the fight.

VAN SUSTEREN: Let's go to Los Angeles to Judge Joe Brown.

Judge, if this case were to appear in a courtroom and the defendant elected to testify, there are no other witnesses, how does a judge, if the is trying it, not a jury, determine credibility?

JUDGE JOE BROWN, TV JUDGE: Well, see, the deal is is that you have to prove your case beyond a reasonable and to a moral certainty if you are the prosecuting agency. In this instance, he might be better served by not taking the stand at all. They simply have a wound. There is a statement they might introduce, it is self-serving, and he may or may not wish to offer an explanation.

Second degree murder looks like a viable charge, so does voluntary manslaughter. But you would have a very difficult time establishing who was the initial aggressor in this thing from the prosecutorial standpoint, and this might develop to be a case where the best witness for the prosecution might turn out to be the defendant himself.

VAN SUSTEREN: Bernie, how does a defense lawyer decide in a case whether you should ask to have it tried by a judge or a jury?

GRIMM: If there is a legal issue, a very refined or obscure or involved complex legal issue, you might want to have it resolved by the court because you're afraid that the jury might not understand justifiable homicide or self-defense. In this case probably, as the gentleman raised, the only conceivable defense would be self-defense, Latham claiming that the captain attacked him first. The problem is, I didn't see any injuries on Latham.

VAN SUSTEREN: Let's go back to John Marie, who is the spokesperson for the Plaquemines Parish. Were there any injuries on the defendant, if you know?

MARIE: No, ma'am. We noticed no injuries on the defendant. The victim had approximately five stab wounds that the corners office recognized as more or less defensive wounds, where had his hands raised in a defensive manner. Also, Mr. Latham, in his confession, stated to our detectives that he had knocked -- Mr. Leiker had been knocked overboard, washed overboard, with the jacket, lost the life jacket in the stormy seas, and tried to climb back on to the back of the boat, at which time he struck him once on the arm and once on the head with a pipe. And those injuries were very consistent with the corner's findings.

VAN SUSTEREN: Do you have any information, John Marie, I mean, is there any support for the assertion that there was only one life jacket that the two were fighting over? do you have any independent information about that?

MARIE: No, ma'am. We have no other statements other than Mr. Latham's. The owner of the boat, apparently being leased to Mr. Leiker, the owner of the boat stated to our local news media that there were, in fact, three life preservers on board. Mr. Latham consistently stated throughout, from the very beginning to his confession, that there was only one life jacket on board. And Mr. Leiker had taken it from him and more or less told him, you are just going to will drown out here.

VAN SUSTEREN: All right, we are going to take a brake. Still to come: defending a shipwrecked survivor charged with murder. Plus, finders keepers, how the law views the rights of those who discover treasure. Stay with us.

(BEGIN LEGAL BRIEF)

John and Patsy Ramsey have agreed on an undisclosed date in August to meet with Boulder police about the 1996 slaying of their daughter JonBenet.

The meeting will be the first between the Ramseys and police since June 1998.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

VAN SYSTEREN: 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 available on the site any time via video-on-demand. You can also interact with our show and even join our chat room.

The body of the captain of a sunken shrimp boat was found Friday in Breton Sound, off the coast of Louisiana. An autopsy showed Raymond Leiker suffered stab wounds and injuries to his head and arms. Police say sole survivor Alvin Latham admitted inflicting the wounds.

John, as a prosecutor, where do you begin with this case, especially in recognition of the fact that the defendant does not have to testify and may not? how are you going to prove the case?

VOLZ: Well, certainly the physical evidence, the stab wounds on the captain would indicate that the only other person present was the person who inflicted those wounds. So you certainly start with the coroner in describing the cause of death and the fact that it is apparently inconsistent with some of the statements that the defendant has made.

But, of course, in any case, when you have no witnesses other than the defendant himself, it's not going to be a cake walk to prove his case. And especially, if the defendant decides to take the stand and tell us a story that he was the person who was attacked and he was defending himself. Now that may be a hard sell for him, in view of the seriousness of the wounds that were inflicted on the captain.

VAN SUSTEREN: But the prosecution can't call Alvin Latham, but let me put two statements that may come in, statements that Latham made assuming that the judge doesn't throw them out. He is quoted as saying to the police: "We were fighting over the only life jacket, I stabbed Ray. Then a big wave washed Ray overboard." And another statement apparently that he made: "Ray tried to crawl back on the boat, I hit him with a pipe."

Bernie, if those statements come in, as a defense attorney does that help the defendant or hurt the defendant?

GRIMM: It doesn't appear to me that he has the captain fighting him at all. It appears that he striking him without defending himself. So the only chance Latham attorneys -- and I'm not telling them anything they don't know, they have to get the statements excluded as evidence against the defendant, get them thrown out.

VAN SUSTEREN: But if those statements do come in, does that in some ways box the defendant into having to take the stand and explain them further?

GRIMM: I think the statements are bad enough by themselves. I think they're inexplicable.

VAN SUSTEREN: Judge Joe Brown, do you agree?

BROWN: Well, here's what I think the problem is here from the defendant's standpoint, if the captain's coming back in the boat, his self-defense rights have ended, if he had any, under the circumstances, once the assault has ceased.

Now the captain's in a situation where reasonably, you might have contemplated someone's attempting to save himself at that point. You could grab a piece of the flotsam and jetsam from the boat and hang on to that as an impromptu life preserver. We don't know if there were life preservers on board the vessel in addition to the jacket, that they seem to have been fighting over, which is a different kind of question.

VAN SUSTEREN: And then, of course, Judge, doesn't that also raise the problem, the thing that I think is probably the most, if I were the defense attorney in the case, the thing that would distress me considerably is that the spokesperson for the sheriff's department, John Reese (ph), said that the owner says there were three life jackets on board. So it sort of defeats the "I was fighting for my life" type argument, does it not?

BROWN: It looks like a panic situation. Somebody didn't take the time to look. And you've got the defensive wounds on the deceased. Now I'm not going to pass judgment on it, but you've got a tactic thing here. Don't take the stand and you probably get stuck with a voluntary manslaughter, take the stand, try to beat both of them and a might get stuck with a second degree murder. Or you might if you prevail in terms of the credibility issue, wind up walking out of there with a justifiable homicide, if somebody goes for your testimony.

VAN SUSTEREN: All right, let's go back to spokesperson for the sheriff's department.

John, what do we know about the accused's background and what do we know about the decedent?

MARIE: Well, as far as the accused's background, he was just a roust-about type, didn't have any major criminal activity in his past, that's to my knowledge. And Mr. Leiker, I'm not very familiar with him. But word around the parish was that he was a big tall, rough, rough sailor type guy. But, you know, I don't have any other information other than that.

VAN SUSTEREN: Judge, looking at sort of the worst case scenario for the defendant, let's assume that he's convicted of something, whether it's murder in the second degree or something lesser than manslaughter. When an accused appears before a judge in court, do you take into account these circumstances and whether or not the man might have been fighting for life, whether he's criminally responsible or not? Do you consider that in sentencing him?

BROWN: In terms of sentencing, yes, you would. But here's the difference in this. If he's found guilty of involuntary manslaughter, that is a crime in most states that does not carry a very substantial penalty. And in a large number jurisdictions, is subject to some form of probation or alternative sentencing.

On the second degree murder on the other hand, that's always one of the more serious offenses. And that carries a very, very stiff penalty and is not usually subject to some alternative sentencing or probation. So a great deal has got to depend on what happens to the defendant at trial in terms of his ultimate crime, that is the one he is ultimately convicted of.

VAN SUSTEREN: John Volz, I'm curious, let's assume that in a little different factual scenario, let's assume that they've been fighting over a life preserver and that he had simply knocked him unconscious, took the life preserver, saved himself, but then the captain died from drowning, and not from any blow that he received to his body. What would the law say about that in Louisiana?

VOLZ: Well , you get back to justifiable homicide. And then you get to causation. Then this would be a very good question for a law exam, balance the facts a little bit, and change Miranda a little bit. See whether or not, number one, he caused -- the defendant caused the man's death. There is, you know, no question about how has the right to the life jacket, one life jacket. I might say that the -- it's assumed that there were three life jackets aboard by some.

But I would maybe question that, because that could be self- serving on the owner's part. I'm not judging the owner. But he's supposed to have life jackets on the boat sufficient for all persons on board. He might face some sort of civil liability by the Coast Guard for not having that. But, so -- I don't know how I would weigh that information. But if the a jury found that the death was accidental. Then the defendant walks. I mean if it's a situation where they were -- they might have been fighting over the life jacket but some independent, intervening cause came in and caused captain to die, then I think the defendant goes free.

VAN SUSTEREN: And of course, at this point, the facts are not established, it's very early on in this prosecution. And, of course, the defendant, no matter what he's charged with, is presumed innocent.

But we need to take a break. Up next we're going to switch gears. Finders keepers: not so fast, a Nevada jury settles a million dollar Pepsi challenge. Stay with us.

(BEGIN Q&A)

Q: Why is the ACLU considering legal action to remove lawmakers' authority to approve specialty license plates?

A: The ACLU is attempting to block new anti-abortion "Choose Life" license plates that won approval from Louisiana lawmakers.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: A Las Vegas women is appealing to the Nevada state Supreme Court after losing a $1 million judgment in a fight over a Pepsi contest bottle cap. Cindy Allen (ph) says she found the winning cap while cleaning up at the health food store where she worked, but the jury said the rightful owner is the person who bought the Pepsi, a co-worker who left the bottle on a counter at the end of her shift.

Judge Joe Brown, we don't usually second-guess juries as probably wrong, but suppose this came before you as a trial court matter? How do you decide this?

BROWN: Probably exactly like the jury did. You see, the finder of some lost property only has a claim that is superior to everyone else other than the true owner. In this situation, particularly in light of the fact that she was an employee of the same firm that employed the successful plaintiff, she had an obligation to bring that to the company's attention who might have made an inquiry. Did anyone lose this bottle? In other words, it's worth $1 million, it's a valuable piece of property, or item of property, and the interest in property, in any event, and that should have been brought to someone's notice so they could have made a claim.

See...

VAN SUSTEREN: But let me give you a twist on this, though.

BROWN: ... if you find a million dollars in a bank bag, you can't just claim it, you say, I found a million.

VAN SUSTEREN: Yes, but, Judge, let me give you a different example. Suppose that the co-worker -- suppose it sat there for seven hours and she was the type of co-worker that never cleaned up after herself and decided she didn't want the Pepsi and, in essence, had abandoned it. Now who gets it?

BROWN: Well, it's abandoned if you saw it on the floor, behind a counter someplace, thrown in a trash can. In the facts of this case, it appears that the bottle was found in a place where she customarily left her belongings or unconsumed beverages of the same sort. So that's her regular practice and that was condoned.

And, in any event, if a valuable item of property is found under those circumstances at her workstation, then the finder would be on notice, if he followed -- or she followed the law, to make an inquiry as to who it belonged to. Once the inquiry is made, if no one comes forward, then it would go to her.

VAN SUSTEREN: All right, Bernie, I'm going to make you the judge now. How are you going to decide this one?

GRIMM: Well, I'm not going to second-guess the judge. But if I'm the judge, based on the facts of the case -- I don't want to take the easy way out, but I think the judge, as always, is correct here. It appears that a soda in a health food store would be something that would stand out, since you're, if you're a health person, you're not going to be drinking soda, regardless of whether it was Pepsi or Coke, I don't know.

VAN SUSTEREN: You know what I would have done if I were the, quote, "the judges" -- this was a jury case. And maybe, you know, this is sort of the easy way out, but I would have said to both of them, I would have, first of all, tried to push them to settle the thing and I would have scared both of them into thinking they both could lose a $1 million. And $500,000 looks a lot better than nothing.

GRIMM: Have them split it down the middle.

VAN SUSTEREN: Have them split it down the middle. I mean, that's -- you know, I would have pushed it that way. Would you have done that?

GRIMM: Yes, that seems to be a likely result instead of going to trial. When you go to trial, it's always a gamble. And now this poor woman that found it, she ends up with nothing.

VAN SUSTEREN: Judge, what about if this had been a situation where she had gone home -- the woman who was awarded the money as being the owner of the bottle -- of the can of Pepsi, whatever it was -- and she had gone home and left it overnight. And would that look like abandonment to you?

BROWN: Well, it's a different kind of situation. It's the facts here. The woman opened her mouth and says, look what I just found: a million-dollar Pepsi bottle right there on the scene. If she'd walked out of the place with her mouth shut, factually, you probably would have had a very difficult time establishing that she got that Pepsi in the health food store. Nobody would have known the difference.

And the situation is just exactly like what happened, say, if a courier drops a bank bag filled with a large amount of money: If you have someone find that, they just can't keep the money, they have to post notice that they have found it and let someone attempt to claim it, which, if they cannot, then they go into a chancery court or a circuit court and they attempt to get the title to the property or their claim made whole so they have it. That's the traditional way of doing it.

VAN SUSTEREN: Bernie, in the five seconds we have left, is the loser going to win on appeal, do you think?

GRIMM: The attorney for the loser said the jury completely misread the facts in the case and he's confident the case is going to be reversed.

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," the unfriendly skies: passenger dissatisfaction in the air. I'll be taking your phones calls and e- mails. That's at 10:00 p.m. Eastern.

And today on "TALKBACK LIVE," what is the U.S. doing to stop a worldwide AIDS epidemic? That's today at 3:00 Eastern, noon Pacific.

And we'll be back tomorrow with 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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