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Burden of Proof

Child Wrestling Death: Adult Justice for a 13-Year-Old Boy

Aired January 26, 2001 - 12:31 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, adult justice for a 13-year-old Florida boy. A jury found him guilty of first-degree murder of a 6-year-old girl.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: The state of Florida versus Lionel Tate, Judge Joel T. Lazarus presiding. Verdict: We the jury find as follows as to this indictment. The defendant is guilty of murder in the first degree.

KEN PADOWITZ, PROSECUTOR: This was a horrible, tragic murder. A little 6-year-old girl, a little first grader, was savagely beaten, stomped and kicked to death over the course of five minutes.

JIM LEWIS, DEFENSE ATTORNEY: This is a horrible tragedy. And this is not the case in which to take a tough stand on juveniles.

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

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

Yesterday in a Fort Lauderdale courtroom, 13-year-old Lionel Tate was convicted of killing a 6-year-old girl. After only three hours of deliberation, a Broward County jury found Tate guilty of punching, kicking and stomping the family friend to death.

His lawyer argued that he was imitating professional wrestling moves that he had seen on TV. Prosecutors say the girl suffered more than 30 injuries, including a fractured skull, torn liver and bruises all over her body. Since he was tried as an adult, Tate could face life without parole. He'll be sentenced on March 2.

Joining us today to discuss this case from Fort Lauderdale is juror Kathleen Pow-Sang. Also joining us from Fort Lauderdale is Assistant State Attorney for Broward County Ken Padowitz. From Pittsburgh, Pennsylvania, Jerry McDevitt, who's the attorney for the World Wrestling Federation president, Vince McMahon. And here in Washington, Mike Welker (ph), criminal defense attorney Mary Petras and Kathy Chopper (ph). In our back row, Tyler Parott (ph) and Corey Meltzer (ph). Kathleen, first to you. Obviously you had a tough job, a civic duty of serving as a juror. How difficult was it for you personally to sit there and render a verdict of guilty on this young boy?

KATHLEEN POW-SANG, JUROR: It was extremely difficult. And we all knew that we had a heavy responsibility, and we were all very aware of that.

VAN SUSTEREN: What was his reaction when the verdict was delivered in the courtroom?

POW-SANG: Lionel, the child?

VAN SUSTEREN: Yes, what was the child's reaction.

POW-SANG: He cried.

VAN SUSTEREN: And what was it -- I mean, did you look at him during the delivery of the verdict?

POW-SANG: Yes, I did.

VAN SUSTEREN: Going back to the evidence of the case, what was it that was so compelling to you?

POW-SANG: Well, the evidence was overwhelming that this child was beaten savagely, and it took some time for this beating. It wasn't just one or two or three fatal blows, it was several.

VAN SUSTEREN: What was the discussion in the jury room?

POW-SANG: The discussion was -- our main element was, did he willfully and knowingly commit this act? And I don't think there was a single juror that felt that he intended to kill this child, but the question was, did he willfully and knowingly commit these acts? And we had to determine that he did from the evidence.

VAN SUSTEREN: What was sort of your first thoughts when you were first selected to serve on this panel and you saw him in the courtroom? What did you think about him?

POW-SANG: It was shocking. I think all of us in the courtroom were shocked and horrified. And it's very tragic.

VAN SUSTEREN: What -- how long did the trial actually last?

POW-SANG: Three weeks. This is the third week.

VAN SUSTEREN: Go ahead.

POW-SANG: The first week we were picking the jurors.

VAN SUSTEREN: Did you think or in hindsight -- step out of your role as a juror, but just be a citizen for a second. Did you think, or do you think he should be tried as an adult or as a juvenile? POW-SANG: Well, we were all really surprised that that was the case. And we were told in the beginning that we couldn't know the reasons why he was indicted as an adult. And as the case proceeded, we began to realize the severity of the case, and we came to understand why he was tried as an adult.

VAN SUSTEREN: Ken, you were the prosecutor on the case. In terms of deciding whether or not he should be tried as an adult or a child, under Florida law, was it an option, number one? And number two, what led you to decide to try him as an adult?

PADOWITZ: Well, when I received this case, I immediately was struck by the brutal and savage beating that this little 6-year-old first grader received. I mean, she basically was beaten and stomped and kicked to death over the course of five minutes.

VAN SUSTEREN: Let me just stop you there. Is it the nature of the injuries and the ultimate result of death that was the reason to try him as an adult, or were you focusing on his age, his mental age as well?

PADOWITZ: Both. Actually, not only did I consider the severity of the injuries in the murder of 6-year-old Tiffany Eunick, but I looked to see if we prosecuted him as a juvenile, what could we do, how could we punish and help Lionel Tate? And the options were not very good. He would have fell in what's called a Level 6, which means in a juvenile court he would have only received, on the average, six months to nine months in a juvenile facility. And the most psychological help that he could have received in juvenile court is up to age 21.

So I felt it was incumbent, after many days of really heavily thinking about this and having this weigh on my mind, that I should not make this decision; 15 members of the community should hear the evidence in a grand jury and they should decide with all the facts, that they knew they could not deliver an indictment and that we could, in fact, proceed in juvenile court. And after they heard the evidence, they decided he should be indicted as an adult for this horrible murder.

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

When we come back, I'm going to ask the defense attorney whether or not she agrees this should be tried as an adult and not as a juvenile. Stay with us.

(BEGIN LEGAL BRIEF)

Last September, New Jersey Gov. Christie Whitman signed into law a bill regulating "extreme wrestling." The goal of the bill was to create requirements for promoters to perform "extreme wrestling" in a responsible manner.

(END LEGAL BRIEF)

(COMMERCIAL BREAK) (BEGIN VIDEO CLIP)

PADOWITZ: He knew he was hurting her. He knew that every punch, every blow and every stomp and kick on her little body was hurting.

LEWIS: If you have a reasonable doubt that this could be classified as a excusable homicide, then you should find him not guilty.

(END VIDEO CLIP)

VAN SUSTEREN: Yesterday in Broward County, Florida a jury found a 13-year-old boy guilty in the murder of a 6-year-old girl. The case was tried in adult court.

Mary, you're a defense attorney. You've heard ken talk about the decision of whether to charge him as an adult or as a juvenile. What's your reaction to a boy of this age being tried as an adult?

MARY PETRAS, CRIMINAL DEFENSE ATTORNEY: I think it absolutely shouldn't be done. I think the reason that the juvenile laws are as they are for the interest of the child is because, if you think about it, this is a 12-year-old boy. To hold him responsible in the same way as an adult, it sounded like the decision was made based on what they thought they could do for the child, and based in part what happened to the victim. I mean, the idea here is to focus on what the 12-year-old -- what you can do with him. But to suggest that the adult system, because you could have control over him for longer, would be better to serve him I think is wrong.

I think the idea of the juvenile system is to protect the child and the interests of the child. And if you let him get put into the adult system, then that's going to be lost because that isn't what the focus is supposed to be in the adult system.

VAN SUSTEREN: All right, let me just switch gears for one second, go to Pittsburgh, Pennsylvania to Jerry McDevitt.

Jerry, one of the issues in the case -- or at least one that's been all over the media -- is whether or not the reason for this terrible tragedy was wrestling on TV. And I know your -- or the organization you represent was not happy with that. What's your response to them?

JERRY MCDEVITT, ATTORNEY FOR THE WORLD WRESTLING FEDERATION: Well, as we said before the trial, and as the trial showed conclusively, that was nothing but a hoax, and it was a hoax from the day it was invented. These kind of so-called blame-the-media defenses, whether you're talking about the blame Kojak and the Ronnie Zamora case where a 15-year-old shot the next-door-neighbor and tried to blamed Kojak, or the Twinkie defense of years ago where somebody killed somebody and blamed Twinkies, or this so called wrestling hoax.

They have two predictable consequences. One is the lawyer who raises them will get a lot of publicity in the sound bite atmosphere of television. And two, when they go to court, they trot the theory out before the jury that's usually a pretty smart institution, their client goes straight to jail. And that is exactly what happened here.

VAN SUSTEREN: Ken, let me ask you about this wrestling. I mean, the media has portrayed it as sort of the "wrestling defense." I understand that you're the prosecutor in the case, but it seemed to me reading all the background information on the case that it wasn't saying, Ken, that wrestling made me do it, but it merely was saying that it was an accident, that I was merely involved in wrestling moves that I had seen on TV. It wasn't really "wrestling made me do it," obviously a defense that the jury did not buy. But is that the right way to characterize it, Ken?

PADOWITZ: Well, the way I would characterize it is exactly what one of the child abuse experts testified to, was that the forces used to create the injuries to crack her skull and bruise her brain and sever her liver, and the 35 other injuries to her body were of such a force that you would have to fall out of a three-story building or be in a car collision and not restrained in seat belts.

VAN SUSTEREN: But that goes to the -- you know, whether or not that was indeed what happened. But in terms of simply the defense itself, has the media been fair in saying that the defense was, wrestling made me do it? Wasn't it instead the defense that it was an accidental killing. I was simply doing things that I thought was done in wrestling?

PADOWITZ: No, actually both are correct. The defense came out -- when the defendant was first arrested and given a -- basically he gave a sworn statement to the sheriff's office here -- he said he was playing tag. Wrestling had nothing to do with it. It was only after months later all of a sudden we start hearing that professional wrestling is somehow involved in the case. There was no child's play here. There was no professional wrestling, this was not a trial about media violence or professional wrestling.

VAN SUSTEREN: Kathleen...

MCDEVITT: Greta, Greta?

VAN SUSTEREN: Go ahead, Jerry.

MCDEVITT: May I comment on that?

VAN SUSTEREN: Sure.

MCDEVITT: I think we all know, anybody who ever tries cases, that your credibility of your evidence and your credibility as an advocate is everything. Mr. Lewis did try to tell the jury in his opening statement, and was, in fact, running around after the verdict on the "Today Show" still calling it an accident. The fact of the matter is his own expert, the guy he paid to take the witness stand and testify on behalf of the theory of his case, took the witness stand. And when Mr. Padowitz asked him the question, was this an accident or a homicide? Mr. Lewis' own expert said it was a homicide.

VAN SUSTEREN: Which just shows, maybe, perhaps, the -- you know, the poor nature of the evidence or, in some cases, sometimes it's the presentation of the lawyer.

But let me go back to Kathleen.

Kathleen, what did the jury -- when the jury looked at the issue of the wrestling and whether that was a probable defense, was that -- how quickly did the jury handle that issue?

POW-SANG: The jury pretty much unanimously -- we all agreed that it didn't have a consideration of wrestling. That wasn't an element in the case.

VAN SUSTEREN: Was that because of the nature of the injuries, or what was it that was -- that one was so quickly handled by you?

POW-SANG: Well, we talked about how it may have indeed started out as play and maybe started out as wrestling. But, again, the severity and the length of time that it took to inflict all of those injuries far surpassed any kind of playing even accidentally.

VAN SUSTEREN: It took -- now, I understand that the deliberations was three hours in this case. What was the bulk of that three hours? I mean, I take it you went into the jury room and you selected a foreperson. That was your first step, but what then took the rest of the time?

POW-SANG: Most of the time was spent on the second element. There were three element that we had to look at for first degree indictment, and one was Tiffany dead, and she's certainly dead. And the other one was, did Lionel -- was he -- did he do that? Was he responsible? And that was true. And the third element that we were talking about was, did he knowingly and willfully commit these acts that resulted in her death?

VAN SUSTEREN: And did some people have a hard time with it and think it wasn't willfully and knowfully at first -- or knowingly?

POW-SANG: The impression I got was that we all wanted to believe it wasn't knowingly and willfully. And we all tried to reason out a way, how could this happen? and how could this -- how could he not knowingly and willfully do this when it took so long for all these injuries to happen? Because there was testimony that she did -- that she did cry out, she was moaning. And even if she couldn't say stop, there was -- definitely she was in pain.

VAN SUSTEREN: All right, we're going to take a quick break. We'll be right back with more. Stay with us.

(BEGIN Q&A)

Q: A Connecticut judge resolved a dispute between the family of "Howdy Doody" creator Rufus Rose and the Detroit Institute of Arts by granting ownership of the puppet to which party?

A: The Detroit Institute of Arts, because letters between Rose and NBC showed that the puppeteer intended for the museum to have "Howdy Doody" for its extensive puppet collection. (END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: Lionel Tate was just 12-years-old when he kicked, stomped and punched a 6-year-old playmate to death. His lawyer said he was imitating moves he saw on television, watching professional wrestling.

Mary, I want to talk to you about the pretrial matters here. A juvenile plea offer was extended to him, which would have meant three years in a juvenile facility followed by 10 years of probation. Instead, this case went to trial. This is an automatic life sentence unless Governor Bush decides to reduce it in some fashion.

But tell me -- I mean, obviously we can all second-guess the lawyer now -- but who makes the decision in a plea for a juvenile case?

PETRAS: You know, it's -- the client is supposed to make the decision but, obviously, when you have a 12-year-old client you're talking to the parents, and a lawyer plays a big role. And, like you said, it's hard to second-guess somebody, you can only imagine that the lawyer must believe, I suppose, that they can get Governor Bush to do something less than life without parole -- I would certainly hope so.

VAN SUSTEREN: But when you roll the dice -- and obviously it's the client -- I mean, it's always the client when it's an adult; this is more problematic for a child because people are making decisions for the child. But when you roll the dice -- three years in juvenile facility versus life -- I mean, those -- is your range -- I mean that is when lawyers tend to get for three years and cut losses.

What do you think of this?

PETRAS: It's hard when you don't know everything and you're not the lawyer in the case. But it seems to me that a three-year juvenile plea, I can only imagine that he must not have expected his expert to agree that this wasn't an accident.

VAN SUSTEREN: Unless, of course, the child was adamant and the mother as well. And you never know what's going on behind the scenes, so we don't know what the lawyer was dealing with.

Ken, let me go back to you. Life in prison, but do you get to play some role in this, do you not, in terms of what would be appropriate?

PADOWITZ: Well, clearly the jury did the right thing -- they were courageous and they followed the law; they put aside sympathy and they convicted him.

What the penalty is in Florida under the law for first-degree murder is life in prison with no parole, and that's what the judge should sentence him to. Should that be the ultimate result in the case? Absolutely not. There's a special provision in Florida law to have the case then go to the governor of the state where he can hold a clemency hearing and he could hear from myself, from the two psychologists, the three pathologists and the two detectives that worked on this case who all have very strong opinions...

VAN SUSTEREN: What would be yours?

PADOWITZ: My opinion is going to be what was shown by my plea offer in the case, or in that realm -- that there's an appropriate sanction for someone who is 12 1/2 at the time that he committed...

VAN SUSTEREN: Would you be willing to go back to your pretrial offer of three years in a juvenile facility followed by 10 years probation?

PADOWITZ: You know, I think there's a proper place and a time for everything, and the defendant elected to go to trial with the advice of a whole team of people.

VAN SUSTEREN: Even though he's a kid, you're not willing to go back to your original plea of -- that was what you thought was appropriate before trial, but now you don't think that's the appropriate one?

PADOWITZ: No; I think it's appropriate for me to go to the governor after he's sentenced to life in prison and have him commute this sentence to an appropriate sentence for someone who is 12 1/2 who committed a murder.

VAN SUSTEREN: But my question is, what you thought was appropriate before the trial -- would you think that would be appropriate now?

PADOWITZ: I think that I was definitely in the appropriate range when I made that recommendation in my plea offer, and I'm sure that my suggestion to the governor, my strong beliefs about this case are going to be in this same realm.

VAN SUSTEREN: All right.

Kathleen, tell me, reflect on your experience: What do you walk away from this experience -- let me ask you this: Have you ever been on a jury before?

POW-SANG: No, this is the first time.

VAN SUSTEREN: So reflect back; what's this been like for you?

POW-SANG: I'm sorry, what was the question?

VAN SUSTEREN: What's this been like for you, as you look back at this experience?

POW-SANG: Well, it's been a very horrible, intense emotional experience; it's been an incredible education and it's been so many things. VAN SUSTEREN: You know, people get served with notices to appear on juries all the time. Next time you get your notice, are you willing to step up to the plate and do it again?

POW-SANG: Yes.

VAN SUSTEREN: And you're not going to dodge service, having gone through this experience?

POW-SANG: No, and that was one thing that all the jurors agreed on -- that we do feel that we made the right decision, even though we were heartbroken.

VAN SUSTEREN: Well, thanks to all of you. That's all the time we have. Thanks to our guests, and thank you for watching.

Today on "TALKBACK LIVE": pardons, pranks and presents, a week into the Bush administration and the Clintons are still grabbing headlines. Are you concerned? E-mail Bobbie Battista and tune in at 3:00 p.m. Eastern time.

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

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