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Burden of Proof

Pro Hockey Player on Trial: Enforcer Marty McSorley Tried for Assault

Aired September 28, 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: Today on BURDEN OF PROOF: Violence on the ice spills over into a Vancouver courtroom. Yesterday, pro hockey enforcer Marty McSorley took the witness stand in his own defense on assault charges.

Does an attack in a sporting coliseum constitute a crime in the real world?

(BEGIN VIDEO CLIP)

MICHAEL BOLTON, VANCOUVER DEFENSE ATTORNEY: Hockey is a game in which there is cross-checking, boarding, tripping, fighting. These things are all normal in hockey. This case is about a question of degree.

DR. RUI AVELAR, TEAM PHYSICIAN, VANCOUVER CANUCKS: He had a concussion on his way down. I've looked at that video repeatedly and it's hard for me to tell as to whether or not the injury was from him hitting the ice, or even if his head hit the ice.

STEVE KARIYA, VANCOUVER CANUCKS: Obviously, in some instances, you know, we got to get some things out of our game, but I mean, like I said, it's a contact sport, and that's what makes it so tough, and it's a big part of the game, and, you know, it's going to stay that way.

(END VIDEO CLIP)

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

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.

Before we get into the hockey trial in Vancouver, a few update in breaking legal news stories today.

This morning, the Food and Drug Administration gave final approval of a controversial drug RU-486, commonly referred to as an abortion pill, is being called a significant advance in birth control by Planned Parenthood.

ROGER COSSACK, CO-HOST: Also in the news today, the parents of conjoined twin in London say they will not fight a court order requiring the surgical separation of their daughters. The operation will end the life of one of those twins known to the public as Mary.

VAN SUSTEREN: At this hour, the assault trial of Marty McSorley resumes in Vancouver, British Columbia. Yesterday, the pro hockey enforcer took the witness stand and defended his actions in an NHL game last February.

COSSACK: McSorley said he was trying to provoke Donald Brashear into another fight. Now, the two had exchanged blows earlier in the game. Wayne Gretzky, a former teammate of McSorley and hockey's most recognizable figure, attended yesterday's proceedings. The case has garnered attention throughout Canada and the United States.

Let me then go right to Gary Tuchman.

Gary, what's going on up there? Is Gretzky going to testify? What is going to happen?

GARY TUCHMAN, CNN CORRESPONDENT: We don't believe Wayne Gretzy is going to testify. Under Canadian law, he could not have been in the courtroom if he was to be called as a witness, and he did indeed sit in the front row while his friend Marty McSorley was testifying all day yesterday.

It was interesting, Roger, because if this was a jury trial, and it is not, it is a judge who will make the decision, it is very possible the judge may have told Wayne Gretzky, this icon in Canada, that he can't sit in the front row, because it may have influenced the jurors. But as it was, he sat in the front row while his friend testified about five feet away from him.

VAN SUSTEREN: Let's go to Bill McMurtry in Canada.

Bill, Gary just said that this is a non-jury trial. You are a lawyer. Is this a case that could have gone to a jury. Why is this being tried by a judge and not the jury?

WILLIAM MCMURTRY, SPORTS VIOLENCE ANALYST: Well, my understanding is the crown elected to go by way of summary convictions, where you have much lesser penalties, and therefore you don't get the choice. If they preferred an indictment, then the accuse has the choice to be tried by a judge alone or by a jury.

In this case, I'm not sure which -- might have been, I think it is an indictable offense. Therefore I think they elected to go by judge alone.

VAN SUSTEREN: Let me go back to...

MCMURTRY: They do have the election, if they go by way of indictment and that's -- I didn't check up on that fact. It's not unusual in Canada for accused to choose to be judged by a judge alone.

VAN SUSTEREN: All right, let me go back to Gary Tuchman, who is outside the courthouse.

Gary, give me sort of an overview of, you know, who has been testifying, where we are in the case.

TUCHMAN: OK, Greta, the prosecution rested its case on Tuesday called eight witnesses. The main witness, many of us thought, would be Donald Brashear, the man who was hit with the stick on the head. But what is interesting about this case, and what could hurt the prosecution case is Donald Brashear was a very reluctant witness.

He hasn't say much about how he feels about this being brought to court, about McSorley being charged with this offense. But the National Hockey League Players' Association says Brashear did not want this brought to court.

And indeed, the defense, during cross-examination, asked Brashear: Do you want to be here? And he said no.

That appears to not have gone over very well with the judge in terms of the prosecution.

But the main witness in this case was yesterday. The defense called Marty McSorley. He spent all day on the stand. He denied he hit Brashear on the head purposely. He said he meant to hit him on the shoulder. He says he did it because he wanted to provoke a fight. He says he does that all the time. But the videotape clearly shows that the blade of the stick going right in his face, knocking him unconscious.

But McSorley says, after he hit him, he went up to Brashear, and he said: Get up. He said he said that because he thought he wasn't hit in face, and thought he was just lying down, ready to pop up again.

VAN SUSTEREN: Let me ask you another quick question about the evidence. The videotape of the incident was played in the courtroom. I remember the Rodney King case, in which they showed the videotape over and over and over and in slow-motion. How was this videotape shown in court? Was it just simply a one-time deal or was it dissected? was there an autopsy of the tape?

TUCHMAN: That's a good question. Greta. It has been shown many, many times. It has been shown fast. It has been shown in slow- motion. The defense has gotten a new tape which shows, which they say shows the blade in slow-motion hitting the shoulder just a little bit, and then hitting the face, which they say is strong evidence in their favor.

It is arguable whether it is hitting shoulder, it is actually very hard to tell.

The thing that is important to stress here in Canada, just like the United States, the burden of proof is beyond a reasonable doubt. If the judge has any reasonable doubt, he has to find Marty McSorley not guilty of this charge.

COSSACK: All right, joining us now is Nancy Newman from CNN/SI.

Nancy, talk to me a little bit about the culture and hockey, and tell me about Marty McSorley, what role did he play? What does he do on a hockey team. We have heard that he's the fighter.

NANCY NEWMAN, CNN/SPORTS ILLUSTRATED ANCHOR: Well, Marty McSorley lasted 17 years in the NHL playing just that, the role of an enforcer. That's a key role in game of hockey, and it has been around from the get-go.

Guys like him protect the ice for guys like Wayne Gretzy, the skill players. It is a small ice surface, you have got 200 pounders out there. Somebody has got to protect the smaller, wiry guys like Wayne Gretzky, the finesse guys.

It is an up and down kind of game, there's no stoppages like there is in football after 14 seconds. It is up and down game, somebody has got to police the ice, and that is exactly what an enforcer does. And Marty McSorley has been one of the best at it throughout his career.

COSSACK: So I can understand it, and make sure, so that McSorley is a guy that they don't expect to score goals or do much, but what they do expect him to do is make sure that, if there's any fighting to be done or any protecting to be done, he is the guy that does it.

NEWMAN: Exactly right. He is the guy that makes sure he keeps the opponents honest, and gives guys like Wayne Gretzky a chance to do that they do best, that is exactly, specifically his role.

VAN SUSTEREN: Billy Martin, on a high-profile case, you have represented high-profile athletes, do you think that Marty McSorley is in a more difficult position by virtue of the fact that he is a star, or has been?

BILLY MARTIN, CRIMINAL DEFENSE ATTORNEY: Not at all. Let me share with you, I got my start doing sports representation, representing members of the Pittsburgh Penguins in 1990, an enforcer for that team.

You have to understand, he views his role as protecting, as she has indicated, as protecting the finesse players. In Pittsburgh, they had finesse players, Mario Lemieux, they wanted to protect them, so they had somebody just like McSorley.

VAN SUSTEREN: They actually call it finesse and enforcers, that's what they are called?

MARTIN: Absolutely he is an enforcer, and he is expected to engage in physical contact. Fighting is permissible. He was not trying to assault these players. They have fistfights every game virtually.

COSSACK: They don't come behind someone and hit somebody over the head with a club.

MARTIN: What is his intent? He is going to testify that his intent was merely to either check him, slash him in the legs, arms or shoulders, which is permissible. If he misses and slashes...

VAN SUSTEREN: What do you mean check? Is it OK to hit someone with a stick between the knees and the shoulders?

MARTIN: It is OK. There was testimony in this trial by officials that that is OK and acceptable conduct. What here is at issue is whether he hit too high. He obviously hit him in the head, but did he mean to?

COSSACK: All right, let's take a break. Up next, after the incident, the NHL suspended McSorley for the remainder of the season. Should the league have been allowed to handle its own affairs without prosecutorial intervention? Stay with us.

(BEGIN LEGAL BRIEF)

In the 1999-200 season, the National Hockey League set a record with 37 player suspensions and $1.3 million in salary forfeited for 138 games.

Between the 1993-1994 season and 1999-2000 season, the NHL has averaged 32 suspensions per game.

Source: NHL

(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.

(BEGIN VIDEO CLIP)

JEFF SCHULTZ, HOCKEY WRITER: The loudest cheers you ever hear in a hockey game are when the home team scores a goal and when there's a fight; and that's why fighting is tolerated in the NHL.

(END VIDEO CLIP)

COSSACK: The assault trial of a pro hockey enforcer has thrust violence in the sport into the headlines.

Marty McSorley received a stiff penalty in terms of National Hockey League standards, and now he's being tried in Vancouver. If convicted, he could receive a year-and-a-half prison sentence.

We go to Bill Daly.

Bill, what is a culture, if you will, of the National Hockey League? We know that fighting is part of the game but, in this case, basically what McSorley is being charged with is coming up behind a guy and hitting him over the head with a club. That can't be permissible, and why isn't that something that should be tried as a crime?

WILLIAM DALY, EXECUTIVE VICE PRESIDENT, CHIEF LEGAL OFFICER, NATIONAL HOCKEY LEAGUE: Well, I agree with you, it's not permissible; and we penalize it severely and we penalized it, in Marty's case, severely.

Having said that we think...

VAN SUSTEREN: Let me just stop for one second on that question of "severely."

I tell you, severely may -- it may seem severe in terms of NHL but, if this is a crime, and I don't know that it is, and if the law should step into the rink and step onto the ice and regulate this -- for clobbering someone in the head who, I think, he was unconscious and might have gone into a slight convulsion -- getting 23 games suspension and losing $72,000 doesn't, in my view, sir, compare with that year in jail, where you're wearing the orange jumpsuit.

COSSACK: But I think that begs the question, Bill -- the question is, should the law be involved in this? Or the other side of the question is, why shouldn't the law be involved in this?

DALY: I don't think the law -- as long as the league is doing its job and is stepping in and is acting appropriately, is not abnegating its responsibilities, I don't think the law should be involved.

And, you know, to address Greta's point, the 23 games is not really accurate. It's an indefinite suspension. If he wants to play in the league again, Marty is going to have to come and have a hearing before the commissioner like he should have had last February.

VAN SUSTEREN: Nancy, we go back to you. This whole, I mean -- I'm not that familiar with hockey, although my college once did win the championship in hockey.

NEWMAN: She got that in there.

VAN SUSTEREN: I got that in there.

Anyway, Nancy, I mean, when you look at this tape and you're not familiar with hockey and someone gets clobbered like that, you're quite surprised. But is that something that, really and truly, to someone who knows a lot about hockey would not be particularly surprised by?

NEWMAN: I would not say "not surprised." It's something that doesn't happen a lot, but when it does happen it certainly is penalized.

It is a rough sport, I do think once the invention of the helmet came aboard that sticks did come up a lot higher. There was a gentlemanly rule prior to that, in the olden days, in the '60s -- the Gordie Howe era -- that players kept the sticks, pretty much, below the shoulder.

I think they still intend to, but there's a feeling of invincibility, I think, now that the helmet is on there, that they can be a little bit more freewheeling. But the NHL does crack down. Fighting is down -- the average fight per game is down to just one, and that was not the case 20 years ago, so I think the league has done a good job.

VAN SUSTEREN: So Bill McMurtry, doesn't this boil down to whether this was, in essence, an accidental -- that he hit him and he didn't intend to hit him above the shoulder, or whether this was intentional, they intended to hit him in the head?

MCMURTRY: Well, from a strict legal point of view and whether or not it's a crime, you're correct. The intention is a very significant factor; but the courts have been clear that a reckless disregard for your actions can equate to intention.

But, far more significant, people are missing the significant point -- that is the culture you referred to. The National Hockey League -- it's the only professional sport -- it's the only sport in the world where they not only tolerate intentional, vicious violence outside the rules, and that is fighting, but they reward it by saying it's a part of the game. This sort of mindless dogma which they've been perpetuating, going back to some of the Neanderthal cretins who, at one time, were in charge of the league, and you can prove that.

They have created this aura of violence and they use this sort of mindless dogma, that somehow this is cathartic, somehow this is a safety valve, somehow we have to have a form of vigilantism to protect our stars.

Well this is, of course, ludicrous; it's, of course, absurd. And all the social scientists, all the evidence, all the research points to the opposite; and that's why McSorley's case is so important. One of the most haunting statements he made was, all I wanted to do was fight.

As reprehensible as McSorley's actions...

VAN SUSTEREN: But that's -- a fight is different than a crime. I mean, you know, it may be deplorable personal conduct or whatever, but...

MCMURTRY: No, Greta, you're wrong on that.

Our court of appeal up here said that, to attack someone with your fists, even in a hockey game, you can be guilty of a crime. There's no question about that.

Now, they try to keep saying it's a healthy part of the game, as a result...

COSSACK: Bill McMurtry, let me interrupt you a second.

I want to go to Bill Daly and give him a chance to respond. Bill Daly, I mean, I think that Bill McMurtry makes a point which, in effect, to sum it up is, you guys are marketing, as part of your sport, violence; and this is now violence to the extreme. And somehow there is this notion that, if it's done within the hockey rink, anything that would be done outside the hockey rink -- and you would agree, sneaking up on somebody, hitting them over the head with a club, would be punished as a crime -- that somehow it's OK or, at least, not something that the courts have jurisdiction over. I just don't see how you get there.

DALY: Well, I don't think we market fighting. I don't think we market violence.

I think we market contact. It's a very fast sport, there's a lot of contact in our sport and that's one of the things that people like about our sport.

We don't condone fighting, we don't encourage fighting, we don't sell fighting. As a matter of fact, we penalize fighting very severely; and fighting is less a part of the game now than it has ever been.

To go to the point that was made earlier: In fact, there's a fight every third game, not a fight every game. I mean, the fighting is way down in the National Hockey League and...

VAN SUSTEREN: I'm sorry. Billy, hold that thought because we're going to take a break. When we come back, I'm going to let Billy finish his thought, I'm also going to ask Billy, when should the law step onto the rink, if it ever should. Stay with us.

(BEGIN Q&A)

Q: Why must a prospect of the Pittsburgh Penguins register with Pennsylvania authorities if he's called up for the big leagues?

A: Billy Tibbetts must register as a sex offender, since he pleaded guilty in 1994 to raping a 15-year-old girl at a party. He was 17 years old at the time of the offense.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: The trial of hockey player Marty McSorley exposes some long-standing wounds in the rough-and-tumble world of professional ice hockey. McSorley is being tried for assault. The prosecutor says it is a felony; McSorley says it's a major penalty.

Billy Martin, where does -- should the law get involved in these disputes? You have the hockey league, which seems to say that this is the sport and you have other critics who say this is rough-and-tumble, this goes beyond. I mean, this is contact sport.

Is there a line to be drawn when the law should go under the rink? MARTIN: It's a very gray area, and as former prosecutor, I think prosecutors always have to have the ability, right and discretion to intervene when they think the law has been violated. Here, because fighting is such a culture of the game, these two players themselves were actually engaged in a fist fight earlier on the ice. If McSorley's defense is purely...

VAN SUSTEREN: How is that different than two guys -- two guys who were a little obnoxious outside a bar decided -- inside the bar they say let's go out and fight, and they both agree to it. They go outside and they fight, and one takes a bottle and clobbers the other, but he's dead, Now, is that, I mean, they agreed to the fight. They both were in the bar.

MARTIN: Greta, before you can invoke those rules on the ice, I think you have to educate the players that the rules have changed.

VAN SUSTEREN: No, no, no, the rules have been you can't hit someone in the head with a stick.

MARTIN: The rules permit punching. The rules permit punching.

COSSACK: Punching, yes, but not -- what this guy did is he came up behind him and hit him over the head with a club.

MCMURTRY: The rules do not permit punching.

MARTIN: The unwritten rules, the referees have testified -- the referees have testified in case that they tolerated punching. So, whether they permit them or not, they tolerated them.

COSSACK: In fact, in hockey, Bill McMurtry it is sort of difficult to argue that fist fighting, dropping of the gloves, is not part of the game, because whether it should be or shouldn't, but that -- that's what part of the game is.

MCMURTRY: No, that's completely wrong. I will tell you why. It is part of the game because they have chosen to make it part of the game. You don't see it in Olympic hockey, I don't see people turning off their sets.

VAN SUSTEREN: But they agreed to it. But, you know what, here you have Brashear who apparently didn't -- I mean he obviously didn't want to get hit in the head with a stick, but you've got Brashear who seems to be a reluctant witness. You've got this whole sort of National Hockey League, you know, rough-and-tumble sport. If they agree to it does that...

MCMURTRY: You are missing the point, Greta, with all due respect. You are missing the point. It's every team has to have somebody who is not there necessarily there for a skill but because he's an enforcer, which means he's very good at beating somebody up outside the rules. And so, teams have one, two or three of them. That permeates, no, the real tragedy is, there's 40,000 people playing the game who think: Well, maybe I'm not a great hockey player, but if I can get a bit psychotic and excel at violence outside the rules, maybe I will make a name for myself.

COSSACK: Let's go to Bill Daly for a second. Bill, Bill Daly, I want you to respond to that because what he -- what Bill McMurtry is saying is look, there's college hockey and then there's professional hockey, which is a different sport, which includes, once you get on the ice, we are immune.

DALY: No, I don't think that's true at all. I don't think we take the position that --

COSSACK: Well, is there any situation in which -- is there any situation in which you would agree a player could be prosecuted by the -- by the state?

DALY: Unfortunately, what you have here is a situation where the prosecution has tried to take a category of offense and made a third category out of it. We have assaults that go on in our game, in the typical definition of assaults, the legal definition of assaults, every shift, every shift. Some of them are done within the rules and they are not penalized. Some are done outside the rules and they are penalized. And they are penalized both on ice by the officials and by the league.

We had 37 supplementary discipline suspensions this year, compared to 14 over a three-year period in the '70s. We are regulating this and we are penalizing this very severely. What the prosecution has tried to do here is create a third category.

VAN SUSTEREN: Let me talk to Nancy one second before we run out of time.

Nancy, we have 25 seconds left. Is this case going to have any impact on NHL or is this a one shot deal?

NEWMAN: I certainly think that everybody involved in the NHL doesn't hope that it does, in fact, not end up being a black eye for NHL. I do think it is important to note other sports, like baseball, there is bench-clearing brawls in baseball. There is nothing like that in hockey. You come off the bench when there's a fight on the ice, you get suspended for 10 games.

There is nothing like that. In fact, if a fight breaks out on the ice and you are on the ice, you have to go to your bench. In baseball, guys are allowed to bean. The players -- the pitcher can bean the batter. In football, the crown of the helmet can be used to impact a player and see Troy Aikman go off with a concussion.

So, there are other sports that contain violence but it is different in the NHL in that they do try to govern against fighting.

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

VAN SUSTEREN: We will be back tomorrow with another edition of BURDEN OF PROOF. We will see you then.

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