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Burden of Proof

Is Edmond Pope Receiving a Fair Trial in Russia?

Aired October 30, 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: An American businessman on trial in Moscow on charges of being a spy. Doctors say his health is failing and his Russian captors aren't permitting medical attention.

Today on BURDEN OF PROOF, enter the world of Russia's new criminal justice system.

(BEGIN VIDEO CLIP)

PHILLIP REEKER, STATE DEPARTMENT DEPUTY SPOKESMAN: Their treatment of Mr. Pope to date, since his arrest, certainly raises some serious concerns about the safety and security of American business travelers in Russia.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

CHERI POPE, WIFE OF EDMOND POPE: Physically, he actually looked at little better than he did in August. Mentally, he was much worse. He was very fragile.

(END VIDEO CLIP)

REP. JOHN PETERSON (R), PENNSYLVANIA: We ask for the chance to be able to question the accuser. The judge said no. We asked for an American observer. The judge said no.

It's obvious the deck is stacked against Edmond Pope. No sunshine will shine on this case. It's obvious that our political leaders will have to resolve this issue because of a failure of a fair trial.

(END VIDEO CLIP)

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

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. On April 3rd, a retired U.S. Navy officer was arrested by Moscow police, charged with trying to buy classified plans for a high-speed torpedo used by the Russian Navy: 54-year-old Edmond Pope is being tried in the Moscow Russian court, and he's accused of being an American spy. ROGER COSSACK, CO-HOST: Now, last week, Pope's wife traveled to Moscow with Republican Congressman John Peterson. Cheri Pope visited her husband Wednesday and reported that he looked healthier than her last visit in August, but mentally is not well. Her requests to meet with him Thursday and Friday were denied.

VAN SUSTEREN: Joining us today from Capitol Hill is Congressman John Peterson of Pennsylvania, and in Atlanta, we're joined by Russian law professor Harold Berman.

COSSACK: In Los Angeles, we're joined by Dr. Brian Durie, who's examined Pope's medical records. And here in Washington, Brian Jones, Susan Ringler, deputy director of the Central and East European Law Initiative at the ABA, and Anita Patankar (ph).

VAN SUSTEREN: And in our back row, Serene Bynum (ph) and Phil Bolin (ph).

And joining us from Moscow is CNN Moscow bureau chief, Jill Dougherty.

Jill, first to you. What can you tell us about Mr. Pope and this trial?

JILL DOUGHERTY, CNN CORRESPONDENT: Well, it's a complicated case, Greta. But essentially it boils down to this, that Mr. Pope was arrested on April 3rd, he was charged with espionage, and allegedly he was charged with trying to obtain information on a very sophisticated torpedo, which is called the Squall. Now, his lawyer maintains that Mr. Pope is not a spy, that that technology actually was not secret.

The trial began about 12 days ago, and there have been a number of motions by the defense, all of which have been turned down. And there are two complications of this case. Not only is it the charge of espionage, but it is also the fact that Mr. Pope is sick. He has a rare form of bone cancer, and that has complicated all of this.

His wife feels that he will not survive unless he is let out of prison. He's been in prison since April, and they have tried, his side, the defense, has tried to get documents in fact just this week, documents introduced into the court which show how sick he actually is.

The court says that Mr. Pope is in remission and that he can go through this trial, and there is no need for that type of information -- Greta.

VAN SUSTEREN: Jill, is the trial open to the media and do we know specifically what the evidence and charges are against him?

DOUGHERTY: No, and those are two very important points. No. 1, it is closed, because all that they are discussing is classified, and that has created this kind of catch-22 situation where Mr. Pope says he does not know specifically what he is being charged with, because it is classified information. So, that's the most complicated part of all, that he really doesn't, he says, know what he's charged with. COSSACK: Joining us now by telephone is the lawyer for Edmond Pope, Pavel Astakhov.

Pavel, in your defense, have you been able to put any evidence before the judge that would indicate that the material in question was not classified?

PAVEL ASTAKHOV, EDMOND POPE'S ATTORNEY: Yes. Edmond Pope was sure that all materials he bought were unclassified, because all materials were from open literature, from open books, and witnesses which were interviewed in the trial, they say that all materials were unclassified.

COSSACK: Well, then how does the prosecution answer the testimony of your witnesses, which say that this material was not classified, and I suppose, therefore, would not be the subject of espionage?

ASTAKHOV: But prosecution -- prosecution feels that to confirm -- to confirm that all materials are classified, that is a conclusion of experts, which say that materials -- the same part -- the part of materials is classified. But the main argument we have (UNINTELLIGIBLE) that they are not the same materials in the case of materials Edmond Pope got.

VAN SUSTEREN: Congressman -- let me go to Congressman John Peterson, who joins us from capitol hill.

Congressman Peterson -- obviously, I don't know if Mr. Pope was buying classified or unclassified information. What strikes me is that it's an American being tried overseas in what seems to be a secret court because of the allegation of classified information.

But nonetheless, that the charges -- we don't know what the charges are, and it's closed, and so the issue of fairness certainly rears its ugly head in my mind. What does the American government, what is it doing or what can it do to try to make sure that this man at least has a fair trial, or is there nothing we can do?

PETERSON: Yes, I don't believe there's much we can do to make a fair trial. When they say no to a jury trial, that's certainly a big loss, no to an independent interpreter so Ed can understand the charges. Those that were translated, it didn't make sense in English. An American observer, it just astounds me that somebody couldn't observe this trial on behalf of our country. And to be unable to question your accuser, how do you get to the truth? Not to be able to bring many of the defense witnesses that are necessary?

Of course, our biggest disappointment was that the trial was held up for a day and a half to listen to a motion on health care. We provided them with the ability to do MRIs and CAT scans at Russian hospitals. They have that equipment there, and we even approved certain doctors that are adequately qualified. They said no to that.

I believe in the end we have to have faith in our leaders resolving this because this is a stacked deck. VAN SUSTEREN: Jill, let me go back to you before we lose you. You know, when we listen to the facts here in United States in terms of the process -- we don't know the underlying facts of the allegations -- it sounds extraordinary. How does the Russian media look at this in terms of is this sort of business as usual in the Russian judicial system.

DOUGHERTY: They've been playing it pretty straight so far. Initially, I would have to say that it sounded as if they were supporting the allegation or the charge that Mr. Pope is guilty. Right now, I can't really say that I see they're coming down on either side. It's a pretty straight read with just the facts.

But certainly, this is a very high-profile case. After all, President Clinton and President Putin have discussed it, the U.S. Congress is involved trying to pressure Mr. Clinton to have -- to end aid to Russia if he is not let out.

COSSACK: Pavel Astakhov, just one more question for you. Do you think your client will eventually be acquitted, and how long do you think that might take?

Perhaps we have lost Mr. Astakhov and perhaps it's time for a break.

Jill Dougherty in Moscow and Pavel Astakhov on the phone, thank you both for joining us.

Up next, a check on Edmond Pope's health from a doctor who's examined the medical records. Plus, can an American get a fair trial in a Moscow court? Stay with us.

(BEGIN GRAPHIC, LEGAL BRIEF)

President Clinton signed legislation into law on Saturday that will compensate terrorism victims from the U.S. Treasury.

Under the law, the government would later attempt to collect the money from terrorist nations. Critics say that it doesn't achieve the goal of punishing terrorists.

(END GRAPHIC)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

EDMOND POPE, ACCUSED OF ESPIONAGE: The nature of my cancer, the longer we are here, the greater the danger of a problem. I need proper care and I need somebody who is qualified and understands the type of cancer that I have been threatened by.

(END VIDEO CLIP)

COSSACK: When he left for Moscow last spring, Edmond Pope's bone cancer was in remission, but he hasn't been examined by an American doctor since his arrest in April. Pope, a former U.S. Navy officer now working in the private sector, is charged with trying to buy classified information in Moscow.

Dr. Durie, you have had an opportunity to review Mr. Pope's medical records. Tell us about his cancer. Is it in remission? and how serious is it?

DR. BRIAN DURIE, ONCOLOGIST, INTERNATIONAL MYELOMA FOUNDATION: Well, it has been in remission. Edmond Pope has a rare type of bone cancer and as a specialist, as chairman of the board of the International Myeloma Foundation, I was asked to review what type of cancer this might be and what might be the chances that it could recur and create new problems.

COSSACK: What was your conclusion after having an opportunity to review the records?

DURIE: That it's certainly a type which could recur and possibly cause problems now or in the future. The concern has been that, indeed, Edmond has been complaining of a lump in his neck close to the area of the original tumor.

COSSACK: What type of treatment should he be receiving presently, right now?

DURIE: Well, we have suggested as a normal humanitarian effort that he receive appropriate evaluation, including scans, as was mentioned, MRI, or cat scanning, and also have proper review by physicians knowledgeable about this type of cancer.

VAN SUSTEREN: So, let me turn to the trial. I've got to tell you that it really disturbs me to hear these secret trials in another country of an American, and, you know, a patriot, and I hate to see Americans on trial in secret trials in foreign countries. But, here in the United States, we too have these secret trials when it's national security.

What do you make of this trial and the fact that that it is secret over there? And do you have a sort of a sense this is a proceeding that will be fair even though it's behind closed doors?

SUSAN RINGLER, AMERICAN BAR ASSOCIATION: Well, fundamentally, Russia's criminal justice system is completely different from ours in the United States. So, even if you didn't have the layer of the fact these are national security issues, they are very different. The defendant does not have as many rights under the civil law system as they do under our system, which is the adversarial system.

So, earlier when we heard that the defendant had to file motions with the court just to have documents or witnesses appear, under our system the defense has the right to do their own investigation and present that to the court, which he does not have under the Russian system. Now. obviously, the judge did permit him to call one expert witness. Typically, the expert is the court's witness and it is not the expert for one side or another in the case. The fact that it is secret, unfortunately under Russian law, they are permitted to close their courtrooms.

VAN SUSTEREN: Is the linchpin of this case whether these documents are classified or unclassified? because I've read so much that this information about this particular technology is in the public domain anyway. Does that make a difference? does that mean -- if it isn't classified, then how can you violate the law?

RINGLER: It would seem to me that you are absolutely correct, that would be the linchpin. When you look at article 276, which is their espionage law, which I'm assuming he was charged under in this case, they would have to show that in some way his activities posed a threat to the national security of Russia. So, fundamentally, they are to show that.

COSSACK: Harold, in Russia, in this courtroom -- well. let me just start off by saying, as you know in America they have to, the prosecution has to prove their case beyond a reasonable doubt. Is that what has to happen in this trial? Does the prosecution bear that same burden of proof?

HAROLD BERMAN, RUSSIAN LAW PROFESSOR: It bears a burden of proof just like that. They say, as they do in Germany, France and other continental European countries, beyond a doubt. Of course, we say, yes, but there are always doubts you can have. And they say, well, we don't call a frivolous doubt a doubt. So, the prosecution, that is, the court, must be convinced beyond a doubt that he's guilty. I think this trial, we don't see into the courtroom, but if it follows the Russian law, it is being tried, in my opinion, fairly.

VAN SUSTEREN: Let me ask you, Harold, as back up on that: this is not a military court, this is a three-judge panel in a Moscow city court. What does that mean? is that good or bad for him?

BERMAN: I think that's good. Under the old Soviet law, he would have been tried in the military division of the supreme court of the USSR. Now he's tried in a three-judge court, a regular civil, three- judge court, which is bound by the criminal code and the code of criminal procedure in which is now operating in a much more open and objective way than, obviously, than under the Soviets. The Russians are proud of their legal system that they've been developing, and while there are abuses, I think that they will try to make this a fair trial.

VAN SUSTEREN: All right, we are going to take a break.

Up next, a closer look at Russian law and the legal maze facing Edmond Pope. Stay with us.

(BEGIN Q&A)

Q: In 1995, a California man was convicted of a cocaine charge after a jury deliberated for two days. Why did defense lawyers appeal?

A: A holdout juror changed his mind based on the flip of a coin. Today, the U.S. Supreme Court declined to make a decision on this case.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: If convicted of espionage, American Edmond Pope would face a maximum penalty of 20 years in a Russian prison. Pope claims he was buying unclassified information and planned to establish joint ventures with Russian partners.

Congressman Peterson, when you were in Moscow, did you have a chance to meet with Mr. Pope?

PETERSON: No, I got to see him for the first time through the door into the courtroom. It was opened a number of times. And we got to pass some hand signals. And his wife got to greet him there. But that was the closest I got to him.

VAN SUSTEREN: What was your observation of him when you did see him? Did he look healthy, in terms of -- I mean, there's this medical report, but how did his spirits look? Did he make, you know...

PETERSON: No, you can tell he's a very tired man. You can tell he's slumped in the shoulders. He's not the kind of person that -- and Mrs. Pope said that he's emotionally very fragile.

COSSACK: Harold Berman, you mentioned earlier that you felt that, if it was under the Russian system, that he would get a fair trial. But it's told to us that, in fact, the charges that he's charged with are kept secret, and that he's not even allowed to confront his accuser. How can that be anything close to a fair trial?

BERMAN: Well, the charges -- of course, he's charged with collecting secret information -- secret intelligence information -- and so the interesting question is, I think he can confront the witnesses which the court calls. And the witnesses will call his accuser. He has what is new in the Soviet system since the end of -- in the Russian system since the end of the Soviet Union, is that the accused now has a lawyer from the moment that he is arrested and detained.

(CROSSTALK)

VAN SUSTEREN: And I've got to tell you, Harold, when you say that, I think -- I mean, they're just getting that now. I must admit that's extraordinary to me, they would just be getting a lawyer now.

Sue, I was sort of struck by how even his lawyer has been so out there in support of him in Russia. I mean, is the Russian legal defense team -- is that a strong system?

RINGLER: It's gotten a lot stronger since 1991. There's some excellent criminal defense attorneys in Moscow, and throughout the country, who desperately want the system to become more adversarial. Under their new constitution, which passed in 1990, it embodies the adversarial principles but part of it... VAN SUSTEREN: Is it pure in the sense that a lawyer can feel safe and secure to aggressively represent a client, or do you have some of the infusion of the political stuff, and you better be careful how aggressive you are?

RINGLER: Well, I think, in Russia, there are many new freedoms. I think they are moving towards more of a Democratic system. But certainly it is only been 10 years. And those political influences are still present. They don't enjoy the same degree of freedom that we might feel secure in here in this country.

COSSACK: Harold, there was an accusation that's been made by Pavel Astakhov, who is Edmond Pope's lawyer, that in fact, part of this trial is done for political purposes. There hasn't been a real espionage case in Russia in a number of years, and this is the way that the Russian -- the successor to the KGB, and in some ways, can flex its muscles. And therefore, there are political reasons for this trial, rather than legal reasons. Is that something that we should believe?

BERMAN: Oh, I think we should believe there are political reasons associated with the legal. But let me just say that one of the political reasons is to show off their legal system. And I think that they will try very hard to conduct a fair and -- trial.

COSSACK: Then why can't he get medical attention?

BERMAN: Well, that I don't know. I have no answer to that. I suppose Russian doctors are seeing him. His complaint -- if I read the reports is -- that they don't speak English. But there must be interpreters -- that I don't know.

But let me just say about the legal system, that the Russians have created a lot of changes in their legal system. And they are very proud of what they have done. And I think they want to show off their legal system. With this state security question, you have this incredible problem that the information which he is alleged to have collected is a state secret. Therefore, it cannot be exposed to the public. Therefore, the public cannot be at the trial. By the way, I...

COSSACK: Harold, let me just interrupt you a second, because I'm afraid that we're all out of time. That's all the time we have. Thanks to our guests. Thank you for watching.

With just eight days before the 2000 election, Bill Clinton suggests the Republicans should apologize for impeaching him. Now, the "Esquire" magazine writer he told that to is on today's "TALKBACK LIVE." And tune in and log in at 3:00 Eastern time.

VAN SUSTEREN: Governor Mel Carnahan of Missouri was running for Senate against incumbent Senator John Ashcroft when he was tragically killed in a plane crash two weeks ago. But his name still remains on the ballot. If he wins, the acting governor has said he would appoint Carnahan's wife. Is this legal? That's our topic tomorrow on BURDEN OF PROOF. Join us again then. 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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