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CNN Burden of Proof

Cincinnati Police Officer Indicted on Two Misdemeanors, Traficant to Fight Federal Charges

Aired May 08, 2001 - 12:30   ET

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

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
(BEGIN VIDEO CLIP)

ANGELA LEISURE, TIMOTHY THOMAS' MOTHER: It was a slap on the wrist. I don't feel like, my personal opinion, I don't feel like justice was served.

(END VIDEO CLIP)

GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: A white police officer is charged with two misdemeanors for fatally shooting an unarmed black man.

Plus, Democratic Congressman James Traficant, facing charges of bribery, and he fires back at the feds.

(BEGIN VIDEO CLIP)

REP. JAMES TRAFICANT (D), OHIO: I'm as frightened as anyone would be in my position, but I want to say this to the U.S. attorneys: You also have pressure. You must defeat me, because if I defeat you, you'll be working in Mingo Junction, and I'm going to show up.

(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. Yesterday, in Cincinnati, a police officer was indicted on two misdemeanors for the fatal shooting of an unarmed black man. Steve Roach was charged with one count of negligent homicide and one count of obstruction of official business.

Roach shot and killed Timothy Thomas, a 19-year-old black man who was fleeing from the police in an alley. The shooting sparked several days of violence and clashes between Cincinnati police and some of its citizens. Now, the FBI has launched a patterns and practices investigation of the Cincinnati police department and whether its practices violate civil rights law.

Joining us today in Cincinnati, Ohio: Hamilton County prosecuting attorney Michael Allen. Here in Washington: David Nydelinger (ph), former federal prosecutor DeMaurice Smith, and Katie Dunbar (ph).

And in our back row: Mitra Yegani (ph) and Erin Grimes (ph). Also joining us from Cincinnati is CNN national correspondent Bob Franken.

Bob, first to you. The reaction to the verdict -- or to the indictment, rather, from the people on the street.

BOB FRANKEN, CNN CORRESPONDENT: Well, the reaction was one of anger to a large degree, disappointment in the African-American community to some degree, but no violence. There were some confrontations with police, there were demonstrations, but the leaders in the community and the mayor and other city officials were successful, at least thus far, in keeping people from repeating what had occurred about a month ago after the shooting when there was four days of really violent encounter in the city of Cincinnati.

The county prosecutor, who you will be talking to in a moment, in fact, was very open about announcing to everybody 24 hours in advance when he would actually announce the results of the grand jury, and that was a strategy that some people thought might backfire, but it seems to have worked thus far.

VAN SUSTEREN: Bob, you say thus far, no problems. I think many people thought that there might be problems. What was sort of the key, what's the lesson to be learned? Why was there no trouble last night?

FRANKEN: Well, the first thing you should do is end your news conference announcing these results the moment a downpour begins. It was quite, quite a coincidence, but literally as we were finishing up, Greta, you and I last night, describing what had just occurred at Mike Allen's news conference, the rain started falling. It come down in buckets, which did, in fact, probably inhibit things a bit.

Besides which, there were massive preparations that were done in advance, not only by the police officials, but by the civil rights leaders in the community, who said it's really not worth it to try violence. He said they, meaning the police, are really disliked in many parts of the community. They have the ability to quell the violence. They were successful. They had a demonstration, which was an outlet for many people, and as I said, thus far, there has been no repeat of what occurred last month.

VAN SUSTEREN: All right, well, let's go to Mike Allen, who is standing at your side. Mike, explain the charges the grand jury indicted this man for.

MICHAEL ALLEN, HAMILTON COUNTY PROSECUTOR: It was a two-count indictment, Greta, one count of neglect homicide, which is a misdemeanor in the first degree under Ohio law. The maximum possible penalty is six months. The second count is a count of obstructing official business, which is a misdemeanor of the second degree under Ohio law, punishable by up to 90 days.

Officer Roach is facing nine months altogether. The obstructing official business, I believe the grand jury determined that there was a conflict between two statements given by Officer Roach, and that's why they returned that count.

VAN SUSTEREN: Mike, what was the grand -- I mean, there's going to be a lot of -- at least, at lot of people may think this was a racially motivated indictment, or if there hadn't been one, that it would have been racially motived. Can you tell me the make-up of the grand jury who made the decision?

ALLEN: Specifically, Greta, I can't tell you, but I can say this: It was a racially diverse grand jury; it was diverse from a male and female standpoint, as well as young and old. It was truly a representative cross-section of our community. It was racially diverse. I'm not at liberty to say specifically what the numbers were, though.

VAN SUSTEREN: Mike, when can we expect the officer to turn himself in? I assume he'll turn himself in, and when does the process begin to go forward?

ALLEN: We're expecting that that will occur tomorrow. It's a misdemeanor case now. It will be handled in municipal court as opposed to common pleas court, and the recent word that I've gotten is that that will happen tomorrow, a bond will be set, and the case will be referred to one of 14 judges in the Hamilton County Municipal Court.

VAN SUSTEREN: Do you know what will happened to this officer's career? Will he be ineligible for service if he's convicted or is it, because it's a misdemeanor, that won't make him ineligible?

ALLEN: You know, I'm not really certain, Greta. That's an administrative matter that the city of Cincinnati will have to determine. I heard this morning that he's been placed on desk duty, pending the outcome of the case. What happens to him administratively, I really don't know at this point.

VAN SUSTEREN: Do you know if he has any other prior complaints against him from citizens for any conduct?

ALLEN: My understanding is that he had an exemplary record, and he was an exemplary police officer. He wasn't a police officer for that long a period of time, but everything that I've heard about him, privately and publicly, has been good. He's been an exemplary police officer.

VAN SUSTEREN: Have you had any contact, Mike, with the Department of Justice? I know that they are sending some investigators out to determine whether or not there's a problem within the police department, but have you had any indication whether or not the federal government will seek federal criminal charges against the officer?

ALLEN: I don't know. I did get a courtesy call yesterday from our local acting U.S. attorney, Sal Dominguez. I also received a call from Al Moskowitz of the Justice Department in Washington. It was a courtesy call to let me know that they were going to announce that they were conducting a patterns and practices investigation.

I certainly appreciated the heads-up that they gave us, but I've heard nothing about a criminal investigation with respect to Officer Roach by the U.S. attorney.

VAN SUSTEREN: Dee, you worked at the Justice Department. What is a patterns and practices investigation?

DEMAURICE SMITH, FRM. FEDERAL PROSECUTOR: A patterns and practices investigation is launched by the Civil Rights Division, and specifically, they look at an expanded period of time where they focus on just that; the patterns and practices of the police department.

VAN SUSTEREN: So, not of the individual officer, but of the department in whole?

SMITH: Correct, it would be better to think of it as pulling back and looking at the macro picture: how the police department has enacted or reacted with the community, what types of training the officers have been undergoing, what types of review process in police shootings, and all sorts of questions relating to the use of force.

VAN SUSTEREN: Suppose that it's substandard. What can you do for a pattern practice? What does Justice do then?

SMITH: Well, if they make a determination that there is a deficiency, they make a finding that there have been civil rights abuses, there is a range of alternatives that the Justice Department may engage in, anything from consent decrees, where there is an agreement between the jurisdiction and the Justice Department to increase training, to increase review.

There could be federal lawsuits, civil lawsuits against the police department or the city for actions taken by the police officers. And finally, there could be criminal prosecutions resulting from acts that the department has reviewed.

VAN SUSTEREN: Can you look in the crystal ball and see whether or not you think the federal government will come in and go after this particular police officer individually for civil rights investigation? What do they look at?

SMITH: I think they will certainly take a hard look. In any pattern and practice investigation, they will take a hard look at things that have happened in the past. There are a couple of things which, as a former prosecutor, would be of interest to me. There have been a number of police shootings in recent months. I think the statistic is at least five. There have been 15 deaths over a relatively short period of time. Those are things that would pique my interest.

VAN SUSTEREN: But that's to look at the whole department, but in terms of the fact that this officer apparently, according to Mike, had an exemplary record would maybe perhaps hold off the Justice Department in terms of looking at him, focusing on him? SMITH: It could, but again, the thing to remember is they will take their own look, if they decide to look at the acts in this case, and if they make a conclusion that he has violated the law, in all likelihood, they will prosecute him.

VAN SUSTEREN: All right, we'll take a break. Up next, we turn the page in the Ohio docket to Cleveland, where a grand jury handed down a 10-count indictment Friday against a controversial U.S. congressman. But James Traficant remains defiant. Don't go away.

(BEGIN VIDEO CLIP, CNN'S "THE SPIN ROOM")

TRAFICANT: I'm the only American in history to defeat the Justice Department in a RICO case pro se, and I'm going to look at 12 jurors again, and they'd better get all 12 and they'd better fix the damn jury because there's going to be a rumble wherever it is.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

VAN SUSTEREN: Ohio Democratic Congressman James Traficant is fighting back against charges of corruption. The nine-term Congressman is now accusing federal law enforcement officers in northeastern Ohio of corruption. He says he'll give more details of his accusations when he hosts a radio talk show later this month. Officials at the Justice Department and the FBI won't comment on Traficant's claims.

Joining us now from Cleveland, Ohio, where a grand jury handed down a ten count indictment against the lawmaker last Friday, is criminal defense attorney Niki Schwartz.

Niki, before I get to you, let me go back to our Bob Franken.

Bob, who is this congressman? Tell us about him.

FRANKEN: Well, first of all, he is a congressman who has already beaten one of these once by defending himself. He was involved in a racketeering charge when he was a sheriff in Youngstown, in 1983. He defended himself in federal court in Cleveland and won, although he did lose a tax case later.

He is a man who has been a nine-term member of Congress subsequent to that. He's considered one of the most colorful members of Congress -- and one of the snappiest dressers there, might I add.

And he's somebody who has been under investigation as part of an expanded investigation into Youngstown. There have been 70-plus convictions, including a Traficant aid, a local sheriff, and a local judge.

This is somebody who is very popular in his district -- he is considered quite the populist -- and somebody who is going to defend himself again. And many lawyers cringe at the possibility he might prove Mark Twain wrong about that and put up a big fight against this case.

VAN SUSTEREN: Niki, now let me go to you. You're a defense attorney in Ohio. What do you make of the fact that your congressman may represent himself in this corruption case?

NIKI SCHWARTZ, CRIMINAL DEFENSE ATTORNEY: Greta, the general consensus in the legal community here is that no lawyer could have won the case that he won in 1983.

Trying the case himself gives him three advantages that a lawyer wouldn't have. One is that usually the judge will cut a pro se defendant some slack in terms of the procedures, because he doesn't know the law. Secondly, it gives him the opportunity to, in effect, communicate his version of events to the jury in the form of argument, rather than testimony, and avoid cross-examination. Third is to communicate his personality directly to the jury.

I took his deposition in a civil case in the early '80s, and he comes across as a very charming rogue. I think all of those ingredients are things that helped him the last time and would give him an advantage over being represented by counsel in the normal way.

VAN SUSTEREN: Niki, what does the community think? I know the country thinks he's sort of an unusual guy? He's ended some speeches with "beam me up" -- he's a colorful guy I guess is the best way to say it. What does the community where he's elected think about him?

SCHWARTZ: Well, in Youngstown, which is a very blue-collar community, he's a very blue-collar guy, and he appeals to them with both a populist voting record and populist rhetoric. He has survived at the polls, despite general consensus that he leaves much to be desired as a congressman.

VAN SUSTEREN: Is there much tension, though, between this congressman, for instance, and the U.S. attorney? Have they had a running battle at all -- is it one of those things, almost a grudge match, or not?

SCHWARTZ: The U.S. attorney hasn't had a running battle, but Traficant has quoted a government informant as saying that the FBI has been running classes on how to get Traficant ever since their '83 failure to convict him.

VAN SUSTEREN: Niki, does the community buy into that, or do they sort of roll their eyes at that one?

SCHWARTZ: Some of each.

VAN SUSTEREN: Some of each. Which is more prevalent, though, do you think?

SCHWARTZ: Do you mean about the FBI holding classes?

VAN SUSTEREN: Right. What about what Traficant says about the FBI holding classes? SCHWARTZ: I don't think that's given much credit. But to the extent that the government feels that it was cheated out of a conviction the last time, I'm sure that there's an interest in achieving justice this time.

VAN SUSTEREN: Dee, this sounds like a nightmare for a prosecutor. You're up against a man who wants to represent himself, a colorful guy. It sounds like a nightmare for a prosecutor. He's won before. Do you want to prosecute this one?

SMITH: It would be tough. Every prosecutor wants the big case, the one where everybody's going to be looking, that's going to be talked about on CNN and shows like this. But at the same time, to say it would cause problems: It will pose immense problems.

VAN SUSTEREN: Like?

SMITH: As far as a person who perhaps is unmatched in an amount of charisma in front of an audience, perhaps the only person I can think of that would be better would be former Governor Edwards of Louisiana. But he's an individual who will constantly give speeches to the jury, and as has been pointed out, and there probably will be a judge who will allow a great deal of that to go on.

VAN SUSTEREN: Niki, do we know who the judge is going to be in this case, or is it yet to be assigned?

SCHWARTZ: I read in one of the newspaper articles that he was going to be arraigned by either the magistrate or Judge Lesley Brooks Wells, and I assume from that that she's probably the judge to whom it's been assigned.

VAN SUSTEREN: What about the docket? How crowded is your docket up there? When could we expect a trial?

SCHWARTZ: Most criminal cases come to trial within six months here, although unusual ones can take much longer. I have no idea how this one will turn out.

VAN SUSTEREN: OK, we'll take a quick break.

He's defiant and popular, but will James Traficant's legal woes bring an end to his days on Capitol Hill?

Don't go away.

(BEGIN LEGAL BRIEF)

Two defense lawyers for former Symbionese Liberation Army fugitive Sara Jane Olson has been charged with what crime?

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

(BEGIN Q &A) Q: Two defense lawyers for former SLA fugitive Sara Jane Olson have been charged with what crime?

A: Releasing addresses and phone numbers of police witnesses. They were instructed to appear in court for arraignment on May 17.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: Ohio Congressman James Traficant is serving in his ninth term in Washington. For months, he predicted he would be charged by U.S. attorneys investigating him. On Friday, a grand jury made that a reality with a 10-count indictment, accusing Traficant of -- quote -- "a pattern of racketeering."

The Democrat is accused of selling his influence as a lawmaker to businessmen, ordering staff members to perform work on his farm, and accepting improper payments from congressional aides.

Bob, before you got assigned to the Ohio streets as an assignment, you were on Capitol Hill and knew a lot about Congress. Tell me, what is Congressman Traficant's reputation with his fellow Democrats?

FRANKEN: Well, first of all, it's much more civilized out here.

But getting back to your question, Jim Traficant is considered -- to put it very mildly -- a maverick. This is somebody who, as a matter of fact, has virtually been drummed out of the national Democratic Party because he decided that he would support for speaker the Republican Dennis Hastert. And that was possibly going to be quite significant, because it is such a close margin that the Republicans control the House of Representatives.

The Democrats have retaliated by taking away his committee assignments, have pushed him out of the caucus, although he still runs as a Democrat, which is almost considered necessary in Youngstown, Ohio, which is so overwhelmingly Democratic. But he is someone whose reputation has mainly been gained through the one-minutes -- that is, the one-minute speech that each member is allowed to give before, usually, the session begins.

And he is flamboyant in those one-minutes. As you pointed out, he usually ends them by saying "beam me up" or language much more colorful than that. So his representation has mainly been gained by his appearances and his flamboyant style.

VAN SUSTEREN: Niki, in order to sort of take a look at the future trial, let's look back for a second at the one he beat. How strong was the evidence when he represented himself and beat that case?

SCHWARTZ: Well, the government's case was overwhelming. They had a signed confession. They had tape recordings of him discussing the money he had taken from Mafia people. There wasn't anybody who thought he had the slightest chance of winning that case.

VAN SUSTEREN: So how do you explain the fact he did win it? Should we all go to James Traficant school of law?

SCHWARTZ: I don't think any lawyer could have won that case.

VAN SUSTEREN: Well, how did he win it, then? I mean, what's the explanation?

SCHWARTZ: Well, the explanation is that he gets the opportunity to testify without having to be cross-examined. He gets the opportunity to make speeches to the jury. He gets the opportunity to ingratiate himself with the jury, all kinds of things that no lawyer would be permitted to do.

VAN SUSTEREN: Dee, would it be nightmare for a prosecutor to lose this case? I mean, we don't know the quality of the evidence. I mean, for all we know, James Traficant could be 100 percent innocent on this one -- how bad for a prosecutor to lose this one?

SMITH: We all hate to lose. And I hated to lose. A loss in a case like this would be difficult because, at least from appearances, it looks like it flowed out of an extensive investigation. I would speculate that there have been a number of cooperating defendants, a number of individuals who have been debriefed, gone into the grand jury.

VAN SUSTEREN: It sounds like he said -- there was a lot of evidence before, though.

SMITH: Exactly right. And the best thing that a prosecutor can do is come loaded for bear and be ready to try a case. This will be a bear. And whoever is up there, they should be ready or risk being sent to, I guess, Mingo County.

VAN SUSTEREN: Yes, what is Mingo County? What is that county he's talking about, Niki?

SCHWARTZ: There is no Mingo County.

VAN SUSTEREN: Well, what is it that he's talking about that he's going to send the prosecutor to?

SCHWARTZ: I think he's talking about something -- you know, the American version of Siberia, wherever it might be. But, you know, he's announced...

(CROSSTALK)

VAN SUSTEREN: Go ahead, Bob.

SCHWARTZ: He announced that's his intention is...

(CROSSTALK)

FRANKEN: Go ahead, Niki. SCHWARTZ: He announced that it is his intention to put the government on trial, which is the strategy he used the last time.

VAN SUSTEREN: Bob.

FRANKEN: And, Greta, if you want to know, Mingo Junction is a town so small that it probably only has one lawyer. That's how small it is. It's a very small town.

VAN SUSTEREN: And it may be James Traficant. And it may be James Traficant, pro se.

Bob...

FRANKEN: It's a very small town nearby.

(LAUGHTER)

VAN SUSTEREN: Bob, I asked in the beginning of the show what they were saying in Cincinnati about the two-count indictment against the police officer. What are the people in Ohio, in Cincinnati saying about this, if anything?

FRANKEN: Well, Jim Traficant has a reputation that really goes beyond the merits of this case. This is a man who, when he was sheriff, refused to foreclose on all the mortgages that were coming due because of the -- almost the destruction of the steel industry there.

So he is incredibly popular, particularly among the general population there, which is very elderly, very union oriented, somebody who would appreciate a populous politician like Jim Traficant.

VAN SUSTEREN: Well, it's a very interesting case.

Dee, what kind of argument would you make if you got a conviction? Would you ask for all 63 years in a case like this?

SMITH: Well, if you got a conviction, I would ask for a significant sentence. He -- the argument will be that he betrayed the public trust, that he took what those people gave him and he misused it for his own good.

VAN SUSTEREN: Does it have any bearing that he's been so insulting to the prosecutors that you run the risk of having a prosecutor argue a little bit harder?

SMITH: Yes.

SUSTEREN: He does? Yikes.

Anyway, that's all the time we have for today. Thanks to our guests. And thank you for watching.

Today on "TALKBACK LIVE": A teacher is reprimanded for taking on bullies. Did he go too far? Send your e-mail to Bobbie Battista and tune in at 3:00 p.m. Eastern time.

And tonight on "THE POINT": Three weeks ago, his 15-year-old twins had no idea their father was in prison. Yesterday, he walked out of that prison after serving time for a rape he didn't commit. Find out what forensic sleuths are doing to prevent faulty findings tonight at 8:30.

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

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