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Burden of Proof

DNA in Divorce Court

Aired January 2, 2001 - 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 Florida woman says DNA will reveal her husband has been unfaithful. Proof of infidelity will trigger an amendment in their prenuptial agreement and could mean millions of dollars for her. Today on BURDEN OF PROOF, DNA in divorce court.

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

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.

In the past two decades, forensic technology has revolutionized criminal law. Today, prosecutors and defense lawyers commonly use DNA evidence to prove a defendant's guilt or innocence. It's also often used to resolve paternity suits.

ROGER COSSACK, CO-HOST: Well, now that technology could be headed to divorce court. A Florida woman says her husband has been unfaithful, and she has the bed sheets to prove it. Nanette Sexton took those linens to a lab, which found DNA from her husband and one other person.

VAN SUSTEREN: Lawyers for her husband, Richard Bailey, argued that the tests were an invasion of privacy and inadmissible, but a judge has ruled that the DNA test could produce admissible evidence. Complicating this case further, the couple signed an amendment to their 1993 prenuptial agreement just seven months before Sexton found the bed sheets. Bailey's family says he suffers from Alzheimer's disease and he was tricked into signing that amendment.

COSSACK: And joining us today from West Palm Beach, Florida is Nanette Sexton's lawyer, Joel Weissman. And from Miami, we're joined by divorce attorney Melvyn Frumkes.

VAN SUSTEREN: And here in Washington, Heather Law (ph), DNA analyst Charlotte Word, And Christopher Scheps (ph). In the back, Paige Haller (ph) and Jessica Linden (ph).

Let me go first to you, Joel. Joel, what are the facts surrounding this divorce? Why did the relationship deteriorate?

JOEL WEISSMAN, WIFE'S ATTORNEY: Mrs. Bailey discovered that her husband was unfaithful to her sometime in July of 1999 and attempted to resolve that unfaithfulness and was unsuccessful, so she decided to sue Mr. Bailey for divorce.

VAN SUSTEREN: Where did they first meet? They got -- they signed this prenuptial agreement in 1993, so I assume they married a short time after. But tell me, how did these two meet?

WEISSMAN: They knew each other from meetings at various clubs and social events in the city of Boston. They became very good friends and ultimately intimate friends sometime in the year 1993, and they married shortly thereafter.

VAN SUSTEREN: Was he married when she first started dating him? because I know that he's been married at least four times.

WEISSMAN: Yes, ma'am. She started to date him during his separation from his wife Anita Bailey.

COSSACK: Joel, why did she suspect him?

WEISSMAN: Well, she didn't initially suspect him, other than to try to find out what was happening.

COSSACK: Why did she want to find out what was happening? I mean, what was it that made her think that this -- her husband was, you know, you know, whatever he was doing.

WEISSMAN: He was not being candid with her as to the events before July of 1999 as to his whereabouts. Messages that she would receive from him and letters that she obtained from him via fax or direct were not necessarily as candid as she thought he was in the past during their relationship. So she suspected him of being devious, but she didn't know why. When she returned to their home in Vermont in July of '99 and went to her bathroom, she discovered behind the bathroom door a nightgown, a long strand of hair in the sink, and other evidence that suggested that there was somebody in her home that didn't belong there.

VAN SUSTEREN: Joel, why was it...

COSSACK: This is not good.

VAN SUSTEREN: Joel, why was it that there was this prenuptial agreement in 1993 and the two decided all of a sudden to amend it in 1999? What provoked that amendment?

WEISSMAN: Well, what provoked the amendment was that Mr. Bailey realized that the agreement was not really fair to Mrs. Bailey, in that they both agreed to go their separate ways in '93 based upon their general financial well-being. But Mrs. Bailey and Mr. Bailey lived happily from '93 through until '99, and he was providing for her generously. In order to make sure that that continued, because he's much older than she. by more than 10 years, he agreed with her that they would amend the agreement so that she would be protected.

Now, please bear in mind that the protection was a triggering event. Mrs. Bailey did not want to be a woman who was either battered or deserted, abandoned or someone who could commit adultery. VAN SUSTEREN: Well, wait a second, though. She was -- she herself committed adultery with Mr. Bailey in 1993. He was not divorced from his wife, number one. And this is not a woman who is of great poverty, according to what I have read. Her net worth at the time they married was about $2.7 million. He had a little bit over 11.

WEISSMAN: Your facts are correct. However, she and he were of the mindset that as she was taking care of him from time to time in his sicknesses and his ability to be a person -- he had an alcohol problem -- she wanted to make sure that he wasn't going to be under the influence of his children and decided that it would be best if they renegotiated their agreement only to the extent that there were triggering events that would allow her to have a level of support if he was what she calls a "bad boy."

COSSACK: So, Joel, philandering was on her mind. And then she goes up to Vermont and she discovers what we'll call the evidence. And then is that what caused her to examine the sheets for DNA?

WEISSMAN: Well, what caused her to examine the sheets was that she saw the bed was not as she had left it. And she saw hairs that didn't belong to her on the bed itself. So then she discovered the sheets underneath the covers of the bed, and that's what caused her to gather all of this information and place it in her care, custody and control in a locked vault in Vermont. She did not use this information readily.

VAN SUSTEREN: Let me go now to Mary McLachlin, who writes for the "Palm Beach Post."

Mary, what can you tell us about this woman? Is she, you know, a woman of great financial means? Is this a woman who's an opportunist? Is this a woman who has dreadfully been wronged by a husband?

MARTHA MCLACHLIN, "PALM BEACH POST": Well, Greta, I'm probably not the best person to pass judgment on those things. I should have pointed out in the story that Ms. Sexton is a woman who has a PhD in art history, she's a very accomplished person in her own right, and she is perfectly capable of, certainly, of looking after herself, taking care of herself. As for her intimate relationship with her husband, I think I'll leave that to the courts.

VAN SUSTEREN: Well, what was Richard -- what is Richard Bailey like? I mean, describe what the facts are surrounding him. Where did he live, what kind of life did he live?

MCLACHLIN: The court record describes that Mr. Bailey is retired from the head -- he was the head of Massachusetts Financial Services for many years. He sits on a number of boards of financial institutions and arts institutions in the Boston area. He is 74 years old. And I have never met Mr. Bailey. He is still in Boston at this moment and...

COSSACK: Mary, this is -- Mary, just quickly, were they known as sort of a hot couple of Palm Beach? I mean, were they sort of major in the social circuit down there?

MCLACHLIN: No, no, they are -- as far as we can tell, they are of they equestrian set, and that is separate from the Palm Beach Island social set.

COSSACK: More the horsy group.

MCLACHLIN: The horsy group, that's right. There's the Equestrian Belt, which is out in the middle of Palm Beach County, and big horse farms and polo grounds and dressage rings and things like that. So that was their world.

COSSACK: We're sort of familiar with it.

VAN SUSTEREN: Right.

COSSACK: Let's take a break. Before a trial begins in this case, the mental state of husband Richard Bailey will be argued in court. What was his awareness level when he signed the amendment to a prenuptial agreement? Don't go away.

(BEGIN LEGAL BRIEF)

Jury selection in the federal trial of four men accused in the deadly bombings on U.S. embassies in Africa starts Wednesday in New York. The men are among nearly two dozen accused of terrorism after pledging allegiance to Osama bin Laden. The August 7, 1998 twin bombings of U.S. embassies in Kenya and Tanzania killed 224 people, including 12 Americans.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: A Florida woman is bringing DNA evidence to divorce court. Now, if the forensic material proves that her husband was unfaithful, it could affect the terms of her alimony. But before the trial begins, the court must first consider the state of her husband when he signed an amendment to their prenuptial agreement last year.

Melvyn, let's talk about what the law requires in Palm Beach, Florida. What does the husband going to have to show, in terms of his mental ability. If he says, look, I really didn't know what I was doing, how does he prove that? And then, what about her claim he's really a person who drinks too much?

MELVYN FRUMKES, FLORIDA DIVORCE ATTORNEY: First of all, you are not dealing with the law in Palm Beach County, you are dealing with the law throughout the state of Florida.

COSSACK: We've recently seen the law in the state of Florida, and we want you to know we are in awe of it. Please get ahead.

FRUMKES: Well, this is divorce law, it is a little different than electoral law.

COSSACK: OK.

FRUMKES: And remember, a lot of what happened before dealt with Palm Beach County also.

COSSACK: That's right.

FRUMKES: If the man was incompetent at the time of entering into the agreement, I think the court would have hold that he didn't intend to enter into the agreement. The question of whether he was incompetent or not is up to the court.

We have no juries in divorce cases in Florida. The judges are juries of one, and the judges decide the law, and decide the facts in each case as presented to them.

VAN SUSTEREN: Charlotte, how unusual -- you have worked for -- how unusual is it that to use DNA, in your business, is DNA used in divorce cases?

CHARLOTTE WORD, DNA EXPERT: Well, we do a fair number of civil cases, where we are assuming that that's what the testing is being done for.

COSSACK: But isn't this for paternity cases, rather?

WORD: No, we have a lot of civil cases where we've been asked to test bed sheets to see whose DNA was on there.

VAN SUSTEREN: Can you tell -- has DNA technology advanced to the point where you can tell when the DNA material was planted on the item?

WORD: Unfortunately, no, that's one of the big issues left in DNA testing is we can tell whose DNA is there, whether it is from a male or a female, but we don't have any indication of when and how that sample was deposited.

VAN SUSTEREN: Joel, what do the DNA test results shows in this case? Who has been tested, or whose DNA has been tested? What do you know? What don't you know? What do you need to know?

WEISSMAN: What we do know for a fact was that there were fluids found on the bed sheet that did not belong to my client, that was fact one. Fact two, over objection to the court order that Mr. Bailey, the husband, give his DNA samples, they found that those samples on the bed sheet matched his. Now the unknown is the female fluids, but we don't need...

VAN SUSTEREN: How do you know that they are female fluids? Can you actually manage -- Charlotte, can you tell if they are female fluids, looking at DNA?

WORD: Sometimes you can based on the DNA test results.

VAN SUSTEREN: Sometimes. Give me the odds, like one out of two, 10 out of 100? WORD: It would depend on the amount of female DNA versus male DNA, and the actual ratio of the two contributors.

COSSACK: Joel, is there a conclusion coming up, in other words, that there was other fluid on those sheets that did belong to a female?

WEISSMAN: I'm looking at a report, dated January 18, 2000, from the testing lab that did it in Denver, Colorado, and it basically says, and I quote, "a mixture components from both male and female were detected on the bed sheets," and it wasn't Sexton Bailey's fluids.

COSSACK: Melvyn, is this going to be admissible in court? I mean, what it tells you, I suppose, is that there was fluid on the sheet, and it tells you that there was a mixture of male and a female, but it doesn't tell you anything else, does it?

FRUMKES: Well, first of all, I think you have to back up a little bit. Adultery is not a ground for divorce in the state of Florida, grounds for divorce...

VAN SUSTEREN: It triggers -- the problem is, it triggers the amendment to the prenuptial agreement, that's the problem.

FRUMKES: It may. It may. The amendment to the prenuptial agreement says that if the lady terminates the marriage by an action based on adultery. Well, the only action in the state of Florida is based upon the fact that the marriage is irretrievably broken. So I think the attorneys have to get over that hurdle first.

VAN SUSTEREN: Joel, it is an interesting technicality, as some people might say, but it could be one that could be fatal, could it not?

WEISSMAN: It's Mel Frumkes' thought. It is certainly not an issue that has to be concerned from the wife's perspective.

VAN SUSTEREN: Wait a second. But it says, I'm looking at the agreement, "Instituted by Nanette, based on adultery." What Mel tells me, and correct me if I am wrong, that you don't lay out the grounds in the state of Florida that adultery is not a stated grounds. So how do you get past that?

WEISSMAN: You plead it. What you say is that the marriage is irretrievably broken, due to the fact that the husband committed adultery. Then I get to prove what the husband did or didn't do.

COSSACK: To show that it is irretrievably broken, right?

WEISSMAN: Well, that's a factor. But also to show that there's a contract. Mel forgets to tell you that, in Florida, we look at prenuptial agreements, and hold them to be valid, unless there's a reason not to. Now the competency issue is an aside, assuming that we prepare correctly and we show that he was competent, more of that if you ask me, we will show that he committed adultery, based upon a contract that she is entitled to receive remuneration of those dollars.

VAN SUSTEREN: All right, we are going to let Mel respond as soon as we come back from our break. Stay with us.

(BEGIN Q&A)

Q: Why was man arrested during a New Year's Day mass in New York?

A: He tried to handcuff himself to Roman Catholic Archbishop Edward Egan. Timothy Byrne was tackled by church ushers and police and tethered with his own handcuffs.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: It's an uncommon piece of evidence introduced into divorce court: bed sheets, which allegedly prove infidelity. The case of a Florida couple is headed to trial April 30th.

Mel, I wanted to give you a chance to respond to Joel, and to basically answer my question is, is this the linchpin of this case if they can prove infidelity by these sheets?

FRUMKES: I don't think so. I think there are several issues in the case. I represent neither party, and it would be presumptuous for me to raise other issues. But I do see other issues involved. The validity of the contract, yes, Joel, is absolutely correct. The contract controls, if it was entered into properly, if the formality...

COSSACK: Wait.

VAN SUSTEREN: Let me ask you a quick question on the contract then. It is dated January 15, 1999, what if there is infidelity, or there had been some infidelity, but it pre-dated the contract, then what?

FRUMKES: I don't think it would be applicable.

COSSACK: Joel, it's my understanding that sperm was not found on the sheets.

WEISSMAN: According to the lab results that we received, sperm itself was not found.

COSSACK: All right, let's go now to Charlotte. Charlotte, now we don't have sperm on the sheets. What does DNA actually tell us now, if anything?

WORD: Well, generally, we would expect on a bed sheet the DNA from a male to come from sperm, the presence of DNA from a male could indicate that the individual was, A, spermatic, and that there is DNA from semen coming from other cells, it could be from saliva, it could be from skin cells from the individual that slept in that bed. COSSACK: OK, Joel, listen, without that kind of evidence, doesn't it make it sort of difficult for you to prove that kind of case...

VAN SUSTEREN: Adultery.

WEISSMAN: It does not make it difficult. It puts out of the thought that maybe he had intercourse at the moment. You know, there is the concept of oral sex, there is the concept of other issues.

VAN SUSTEREN: Do you have any other evidence?

WEISSMAN: Of what.

VAN SUSTEREN: Of infidelity, Any other evidence.

COSSACK: Well, the bathrobe and the hair doesn't help.

VAN SUSTEREN: No, but besides that, were they seen in any restaurants together?

WEISSMAN: Yes, excuse me. I have videotapes by private detectives. We had him followed. I mean, this isn't something that we just come up with.

VAN SUSTEREN: What does your videotape show?

WEISSMAN: Show him hand-holding, kissing, being romantic with another lady.

VAN SUSTEREN: Well, the plot is thickening.

COSSACK: Do we know who this other lady is? Do we know who she is?

WEISSMAN: I would rather not say who the other lady is until we send out a notice of taking her deposition.

VAN SUSTEREN: Mel, that does make it different. I mean, set aside all the sort of work that we lawyers can do, in terms of the DNA evidence, we don't know when, et cetera, et cetera, what about the videotapes, hand holding, does that change things?

FRUMKES: The Florida courts have held that, in order to prove adultery, you have to prove inclination and opportunity. But that hasn't come up very often. As I said, adultery is not an issue, nor should fault be an issue in Florida cases for years.

VAN SUSTEREN: Let me ask you, inclination, the fact that he cheated on his former wife with his current wife, is that inclination evidence?

COSSACK: What is inclination?

VAN SUSTEREN: What is it?

COSSACK: Is inclination like wanting to?

FRUMKES: Yes, but...

COSSACK: And opportunity...

FRUMKES: ... you also have to prove that there was sex.

COSSACK: You do have to prove sex?

FRUMKES: I think so, I don't agree with Joel.

COSSACK: Joel, you don't think you have to prove sex?

FRUMKES: That there just be romantic thoughts.

COSSACK: I mean, thinking can get you in trouble, Joel?

WEISSMAN: I don't think thinking can get you in trouble, we would all be in trouble, probably.

COSSACK: Some of us more than others.

WEISSMAN: But there's another part of this puzzle that you may not be aware of.

COSSACK: OK.

WEISSMAN: The physician who examined Mr. Bailey before the issue of adultery even arose says to us at deposition, to my client: Oh, I remember you from being here with your husband the last time. Well, she was not there, it was this other woman. When you start introducing the other woman as your wife, do you think that that may lead to somebody to claim there was adultery going on?

VAN SUSTEREN: It also raises the question of the competency of the doctor who can't remember, but that's a whole another issue itself.

COSSACK: Yes, Melvyn, what about that? This gets worse. I mean, this added fact being introduced as the wife, I mean, this isn't good.

FRUMKES: That's true, but it would go into whether he was competent at the time, and knew who the people were, with whom he was associated.

VAN SUSTEREN: Mel, if he's incompetent and he wants to settle, does he have to have a guardian sort of talk with Joel and try to resolve this; is that how it is done in divorce?

FRUMKES: In order to settle, he would have to have a guardian.

COSSACK: All right.

FRUMKES: Otherwise you wonder about the binding effect of it. COSSACK: Now you are talking. That's all the time we have for today. Thanks to our guests, and thank you for watching. What a great show.

Today on "TALKBACK LIVE": Does George W. Bush need a Democrat in his Cabinet? Send your e-mail to Bobbie Battista and tune-in at 3:00 p.m. Eastern time.

VAN SUSTEREN: And tonight, join me on "THE POINT." Will former Senator John Ashcroft's rejection of a black judge to the federal bench cost him a job as attorney general? And what about his stand on other controversial issues? We'll get to "THE POINT" at 8:30 p.m. tonight.

And Roger and I will be back tomorrow with another edition of BURDEN OF PROOF. We'll see you 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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