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Burden of Proof

Why Hasn't U.S. Capitol Shooting Suspect Russell Weston Been Tried for Murder?

Aired January 24, 2001 - 12:30 p.m. ET

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

ROGER COSSACK, CO-HOST: In July 1998, a bloody shootout at the U.S. Capitol left two police officers dead and many questions unanswered. But today's most compelling question: Why after two-and- a-half years in prison hasn't suspect Russell Weston been tried for murder?

(BEGIN VIDEO CLIP)

BERNARD GRIMM, CRIMINAL DEFENSE ATTORNEY: If you wanted to pick out a gray area in the criminal justice system, this is -- this is as gray as it gets. There are cases that support the involuntary injection or oral delivery of medication. And there are cases that say it cannot be done.

DR. RONALD DAVID, CHIEF MEDICAL OFFICER, PUBLIC BENEFIT COURT: Mr. Weston is indeed clinically stable. And we are continuing to provide for both his clinical and surgical care needs.

(END VIDEO CLIP)

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

COSSACK: Hello and welcome to BURDEN OF PROOF.

In law, as in life, stories arise in which there are no answers. Today, we bring you such a case.

Russell Weston killed two Capitol Hill police officers in July of 1998. Now, upon his arrest, a judge ordered Weston to a federal psychiatric facility. For two years, he has sat, picking imaginary scabs and telling all who would listen that he won't face trial because he can reverse time.

However, his madness could be alleviated by the use of the drugs, Prolixin, Haldol or Risperdal. The kicker: Once he's returned to sanity, he faces trial for two murders, and a conviction could send him to death row. So his lawyers have blocked every legal attempt to return him to sanity, thereby keeping him alive, although mad.

Today on BURDEN OF PROOF: a flaw within the justice system.

Joining us today from New York is criminal defense attorney Gerald Lefcourt. From Philadelphia, we're joined by ethics professor Arthur Caplan. Also joining us from Chicago, former circuit court justice R. Eugene Pincham. And here in Washington, Meghan Anderson (ph), forensic psychiatrist Eliot Sorel, and Lindsay Palmer (ph). And in the back, Emily Leonard (ph) and Beth Fish (ph).

Dr. Sorel, I want to go right to you.

We've described what happened, that this man came and killed two police officers. He was arrested, and then examined to see if he was competent to stand trial.

How do you -- if you are the doctor that has to make that examination, what are you looking for?

DR. ELIOT SOREL, FORENSIC PSYCHIATRIST: Well, I think we need to first differentiate the areas of evidence. What is medical evidence, and what is legal evidence? And then what is competence to stand trial versus what is insanity?

In terms of competence to stand trial, one is concerned whether the individual is able to assist his defense lawyer to defend him. Now, the fact that he or she is or not able to assist, insanity is one possibility. There're other reasons why someone may not be able to assist one's attorney.

But in terms establishing whether the person is competent to assist his attorneys, he needs to understand the nature of the charges against him. He understands -- he needs to understand the consequences of the behavior that he carried out, and the consequences of a trial for the behavior that may have injured other people.

COSSACK: All right, so it's now been concluded by psychiatrists in this case that this man cannot do that. He does not meet the test of being able to assist his attorney in carrying out his defense.

But that's an entirely different standard than if he was able to go to trial. And the issue of not guilty by insanity was raised. Isn't that right?

SOREL: That is right.

COSSACK: And what would be the difference in what you are looking for in the first instance, whether or not he can stand, even able to stand trial, which is where he is now, as opposed to saying he could stand trial but now the defense says he is insane. What would be the difference?

SOREL: Well, first, I think we need to preface what I'm going to say with the fact that, currently, the law is that if one is insane, then one is not subject to the same consequences of the law regarding behavior that may have injured one or more people.

It is a law that is within English law, goes back to about the 16th, 17th century. We adopted this in this country.

By the way, there are many people in our country who are of the opinion that that is an outdated statute, and that we need to establish whether a person, in fact, has committed such a crime and hurt certain people and be fully subject to the law, regardless whether insane or not.

But the current law is, if one is deemed to be insane, then one does not get the full brunt of the consequences of the law.

The elements of insanity...

COSSACK: Yes.

SOREL: ... refer to a number of factors. First of all, as a physician -- psychiatrists are physicians.

COSSACK: Yes.

SOREL: ... we are trained in medicine and specialize in psychiatry. One would need to do a comprehensive evaluation. And this such comprehensive evaluation, of course, it is not just about the so-called mind, but it is a comprehensive evaluation of the total person: brain, body, heart. There would be a comprehensive physical examine with appropriate laboratory tests. And it would have appropriate, including specialized tests, such as brain scans, MRIs, and a comprehensive evaluation of psychological nature that may include both interviews directly with the individual, as well as additional psychological objective testing.

COSSACK: All right, now, Dr. Sorel, in a shorthand way, is it correct for me to say that, when you are testing to see whether or not someone is insane as a matter of defense, that one of the issues would be -- perhaps the main issue would be whether or not this individual could tell right from wrong?

SOREL: Correct. And he could be able to tell what is real from what is not. And in many of these cases, this case included, there is what we refer to fixed, delusional system, a reality that is his but is not in fact a factual reality.

COSSACK: And the question about whether or not this would be a defense would be, of course, up to the jury to decide.

SOREL: Right.

COSSACK: All right, let's go to justice Pincham in Chicago.

Justice Pincham, you are going to rule over this trial. They put you right back in the -- back in your old own hot seat again, sir, and ask you, are -- in terms of representing the state in this case, what are you looking for? What do you want the doctor to do?

We now have a situation where the doctor has reported back to you and said, Justice, I believe this man is incompetent to stand trial. But if I give him certain drugs, he could then become competent. We are not talking about whether or not he would be insane or sane for the trial, but merely whether or not we could bring him back to a state where he could face trial. What is your interest as the rep -- as the judge in this case?

R. EUGENE PINCHAM, FMR. APPELLATE CT. JUDGE, CHICAGO, ILLINOIS: My interest as a judge in this case would be to say to the prosecuting attorney, what benefit does society acquire from the prosecution of this man?

I am not minimizing the role of psychiatry in this case. But in reality, anyone knows this man, one, is incompetent to stand trial; and two, is insane and committed the act as an insane person.

And I would try to point out to the prosecutor that it seems to me to be a gross waste of taxpayers' resources, a gross waste of the court's time, a gross waste of the prosecutor's time to continually involve this man in the -- in the criminal court process...

COSSACK: All right.

PINCHAM: ... when it is undebatable that he is in fact incompetent to stand trial...

COSSACK: Justice...

PINCHAM: ... and indeed -- yes?

COSSACK: Justice Pincham, I'm the prosecutor in this case and I'm going to say, your honor, I object. I'm going to tell you what the value to society is.

PINCHAM: Yes.

COSSACK: The value to society is we have two dead Capitol guards, policemen who were doing...

PINCHAM: Yes.

COSSACK: ... nothing, who were innocent. And this man...

PINCHAM: Yes.

COSSACK: ... murdered them, leaving them,

PINCHAM: Yes.

COSSACK: ... leaving their children without a father...

PINCHAM: Yes.

COSSACK: ... and their wives...

PINCHAM: Yes.

COSSACK: ... without a husband. And they deserve to be vindicated as the rest of society does.

PINCHAM: No, no. COSSACK: And if this man is sane, then he should be tried. And you can't...

PINCHAM: But he...

COSSACK: ... decide it until you hear the evidence.

PINCHAM: But you know -- well, that's maybe true. But we do know that his family needs to be vindicated. They need justice. And society is entitled to justice.

But society has said that when people commit crimes of the nature that this man has committed, obviously he is insane. And we do not treat insane people with the same force of law as you treat a person who is sane.

The act itself, what this man did in and of itself, clearly demonstrates and proves, on its face, that this man was insane.

COSSACK: All right...

PINCHAM: Without his -- yes?

COSSACK: ... let me interrupt you for just one second because we have to take a break.

Up next: Defending an accused killer. Why Weston's legal team is fighting against medication.

Don't go away.

(BEGIN LEGAL BRIEF)

The California couple who adopted twins over the Internet plea to file a petition in the Arkansas court today in an attempt to overturn the adoption decree that granted a British couple parental rights. A British High Court ruled Tuesday that the twins should remain in the care of British social workers.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

GRIMM: Competency is obviously the threshold issue when someone is arrested. And what it all boils down to is, does someone understand the nature of the proceedings against him, one. And two, can they assist their lawyers in a preparation of their defense. If they fail on either one, then the defendant is deemed, at least temporarily, or for that moment, incompetent.

(END VIDEO CLIP)

COSSACK: More than two years after allegedly killing two Capitol Hill police officers, Russell Weston sits in solitary confinement. The government wants to force him to take medication which would make him competent to stand trial, but his legal team, worried about the potential of the death chamber, has blocked the effort.

Gerry Lefcourt, let me make my prosecutor's plea for a moment to the judge. Your honor, two innocent men have died. The victims' family, society deserves a trial. All we're asking for is a trial. There are ways where we could make this person competent so that evidence could be put before a jury and they could decide whether or not he's insane, or whether or not he's sane. What the defense is doing is keeping him mad, keeping him locked up in an isolated cell, keeping him crazy just to avoid that. Your answer?

GERALD LEFCOURT, CRIMINAL DEFENSE ATTORNEY: Well, the simple answer is is that what the prosecution wants to do is to medicate him enough to cover up his mental illness, and then kill him with the death penalty. They want to pretend, Roger, that this man has not had a life of total bizarre activity and delusional behavior.

COSSACK: No, they want to put it before a jury, Gerry. Gerry...

LEFCOURT: He killed a whole bucket of cats then drove across the country...

COSSACK: ... why would you be afraid to have that in front of a -- why would you be afraid to...

LEFCOURT: ... and might have killed two policemen.

COSSACK: Why would you be afraid to have that evidence put in front of a jury then?

LEFCOURT: Because what happens in our country is is that the vindictiveness of the prosecution, knowing full well that this man is totally crazy and delusional, takes hold and tries to convince jurors not to focus on his emotional state in his life, but to focus on the act. And if what the defense lawyers can accomplish by refusing to have him medicated so he could be murdered is so that the people can understand not the defendant's madness but the madness of prosecutors who want to go and try to pretend an insane man is sane enough, covering it up with medication, so they can actually have the death penalty.

You know, the prosecution...

COSSACK: Gerry, you understand that what the defense has done here -- and I don't mean you, but what the defense team has done here, of course, is sentence this man to a life of madness by refusing to give him the medicine that would make him competent.

LEFCOURT: It's not a life of madness. Once a period of time has gone by where there is no way he is going to improve on his own, I believe ultimately he will be treated in a hospital. Let's understand this man drove across country for no reason and killed two people for no reason in a delusional state. He is going to spend the rest of his life in either a prison hospital or a prison or a death sentence. He is not going free. Under no circumstances is he going to be able to harm any one else.

What we're talking about is what society should do. And we have made the judgment as a society a very long time ago that we're not in the business of killing delusional people, killing children, people who cannot have responsibility for their own acts. And this is a situation where, unfortunately, since the rules have changed and now the burden of insanity defense is on the defendant himself, that the defense lawyers, in order to save this man's life and have him treated in a hospital, have to go through this insanity of having him deprived of medication.

COSSACK: Arthur, what -- as an ethicist, what should we do here? First of all, question number one, does it really make any difference that he is insane as he stands right now? Does that mean he shouldn't be given the medicine? And if he should be given the medicine and he becomes competent, should he be let loose? I mean, what -- give us the ethical dilemmas.

ARTHUR CAPLAN, DIR., CENTER FOR BIOETHICS, UNIV. OF PENN.: Well, the first ethical dilemma is from a doctor's point of view, from the prison health care point of view, this guy should be treated. The laws should be told to take a hike. You don't leave a person in an isolated cell stark raving crazy and not treat him. If he was sitting in a cell and he had a tumor growing inside his bones that was causing him to be demented from pain, would we leave him there and just say, well, it's in his interest to be demented that way, we'll just let him lie in the corner and whimper for a couple of years? It's absolutely crazy to leave this guy the way he is.

I understand that the stakes are that he might be put to death should he get to trial. The separate question is, what's health care's responsibility to an absolutely stark raving madman who's only being made worse by years of isolation. And the answer is clear. It's to treat him.

COSSACK: Doctor, as a doctor, Arthur Caplan suggests that you, then, should make your recommendation to the judge and say, this man should be treated for two reasons. One, it could bring him back to sanity; but two, perhaps as a physician, I have an ethical obligation to treat this man.

SOREL: Well, all of us when we become physicians who take the Hippocratic Oath, and the first line, that is, "first do no harm." The lawyers invoke here that somehow by treatment he'll be harmed because he'll stand a higher risk. Mr. Caplan is correct that we do not apply the same standard to all illnesses. Somehow this illnesses is being treated like something different than any other illnesses. There is a kind of a cruelty to leave somebody untreated with a severe psychiatric disorder that this person has.

It is almost as if we need a higher court to be able to reconcile these three competing issues: the medical, the legal, the ethical and the societal responsibility and consequences. We don't have that yet.

COSSACK: All right, let me take a break.

Up next, is there an answer in this case? What is best for society? Stay with us.

(BEGIN Q&A)

Q: Buford O. Furrow, accused of killing one person and wounding five others at a Jewish community center in August 1999, has accepted a plea agreement on what terms?

A: Furrow has pleaded guilty to murder and hate crime charges in a deal that spares him the death penalty.

(END Q&A)

(COMMERCIAL BREAK)

COSSACK: In July 1998, two Capitol Hill police officers were killed in a bloody shooting. The man accused of the crime has yet to be tried for the killings. And a legal dispute over his medication has kept his case out of court.

I want to make a suggestion to all of my guests, to view this case through this prism. Suppose we were really talking under the -- under our criminal justice system. We are talking about the advocacy system, whereas each side has to advocate for their particular case.

For Gerry, it would be for the defendant. If I was the prosecutor for the prosecution, the doctor would then give information to the court. And the judge would then make the decision.

Gerry, is the problem here the advocacy system? What if there was a system where you and me as the prosecutor and the judge and the doctor can all get together and say, what would be the best solution here?

LEFCOURT: Yes, you are right. The problem -- the problem is part the advocacy system, but also part of political system, because often prosecutors are politicians. And they must appease the vengeance of the community, which the community should feel in a double murder like this.

But the rational thing to do with somebody who is delusional is not to put him on trial and then try to kill him with the death penalty. It's to recognize that he's delusional, recognize his -- that his acts were borne of this insanity, and treat him as such by a hospital prison forever, if necessary.

COSSACK: Doctor, does -- in your opinion does everyone who has committed an act like we've heard Mr. Weston has committed under the circumstances he's committed, would they necessarily be insane under the legal definitions that we have today?

SOREL: Likely.

Now on the last comment, the other challenge at the other end of such treatment that the attorney suggested is that these people get better. And then you are on to another problem. Once they are better, what will be the judicial decision to keep him there? You have to have a judicial decision to keep him there, because as a physician, once he's improved, it would be not necessary for him to be in a hospital.

LEFCOURT: Well, the law already has in place a mechanism to do that. And in most cases, it requires the agreement of doctors, more than one, and in some places, three, that this person is not a danger to himself or to the community.

And largely, that never occurs. Look at the Hinckley case. I mean, probably 10 years after he was well enough to go out, they still wouldn't let him.

COSSACK: All right, let me -- Gerry, let me interrupt you a second.

LEFCOURT: And, you know, the average, that never happens.

COSSACK: Gerry, let me go to the justice.

Justice, in fact, isn't it your role in this case -- putting aside your personal feelings, if you were the trial court judge in this case, wouldn't your role really be limited to listening to the doctor? And if the doctor came in one day and said, I can medicate this person and then he would be competent to stand trial, wouldn't it be up to you to decide, at least in the first instance, whether or not he then should be forced to be medicated?

PINCHAM: That would certainly be my responsibility. And I would exercise that responsibility in conformity with the Constitution and with the insistence upon his counsel, stating that we don't want him medicated, because to do so would allow him to be killed. And I think...

COSSACK: But then -- but that...

PINCHAM: ... but the responsibility...

COSSACK: ... but your responsibility would be to have a trial if in fact a trial could be had. Isn't that right?

PINCHAM: I think -- I -- yes, I think the responsibility of all the parties in this case would be, as has been suggested, to point out that there is a flaw in the system because of this unique circumstance.

Society does not need to kill this man. Society does not need to murder this man. Society does not need to...

COSSACK: Justice, I only have 20 seconds.

PINCHAM: ... to what they expect (INAUDIBLE) from this man.

COSSACK: I want to get to -- I want to get to Professor Caplan. I want to give Professor Caplan a few seconds I have.

PINCHAM: And to say that...

COSSACK: Professor Caplan, if I could just ask you, what should society do in this case?

CAPLAN: We should treat him. We should put him on trial. And we should understand that if we convict this guy of the death penalty, we have only ourselves to blame for not understanding mental illness.

COSSACK: All right, thank you very much.

That's all the time we have.

There are problems in the law, as in life, that are unanswerable. What is the role of the defense lawyer? Is it to keep his client alive, although mad, in isolation? And what's the role of the prosecutor? Is it to force a defendant to take medicine to alleviate his madness so he can be executed? And what does it say about our criminal justice system, which seems to be fixated upon each side's successful manipulation of the law, rather than what is best for society?

I'm Roger Cossack. Thanks to our guests. Thank you for watching.

Today on "TALKBACK LIVE," did the media aid or interfere with the capture of seven prison escapees from Texas? Send your e-mail to Bobbie Battista, and tune in at 3:00 p.m. Eastern time.

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

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