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Smoking on Trial: Who's to Blame?

Aired June 8, 2001 - 15:00   ET



UNIDENTIFIED MALE: We were not allowed to put that evidence on because it wasn't quite connected up enough to the Murrah building bombing.

UNIDENTIFIED MALE: We are rushing to an execution.

UNIDENTIFIED MALE: You in New York from Philip Morris who made $5 billion this past year selling poison, listen up. Your time is up.

UNIDENTIFIED MALE: The issue here is whether the evidence showed Mr. Boeden ignored the mountain of information from the health community.


BOBBIE BATTISTA, HOST: State your case, make an appeal, and let our judges decide. Then get out of the way of the gavel. It's a special courtroom edition of "Free-For-All Friday."

BATTISTA: Good afternoon, everyone, and welcome to a special court edition of "Free-For-All Friday." Our guests today are all TV judges. You certainly may know their faces.

Judge Mablean Ephraim is host of "Divorce Court." She joins us today. Judge Marilyn Milian, the first female judge to host "The People's Court," is with us. And Judge Joe Brown, host of the syndicated courtroom reality show, "Judge Joe Brown," rounds out our panel today.

Welcome to all of you. Thanks for coming in.




BATTISTA: All right, our first topic today: Timothy McVeigh's date with the executioner. A murder defendant is trying to have Monday's lethal injection videotaped so he can use it in his trial. Attorney General John Ashcroft says that he will fight any decision that would allow that.

Now our judges, that's an odd little development that's come out in the news today. We don't know the particulars on the case, but Judge Ephraim, do you -- can an argument be made for that for an inmate somewhere to videotape this execution and possibly use it in his defense?

EPHRAIM: I don't understand how you're going to use your videotape of your execution in your defense. You'll be dead.

BATTISTA: Well, I guess...

EPHRAIM: Where's the defense?

BATTISTA: He's a death row inmate, I think.


BATTISTA: I think the prisoner who's made this request, and I'm guessing he wants to -- I'm guessing this prisoner -- not McVeigh. This is another prisoner somewhere else. I'm guessing that he wants to use this videotape recording to maybe prove the cruel and unusual point or something.

EPHRAIM: Oh, he wants to use the videotape recording of McVeigh's execution?

BATTISTA: Yes, yes, I'm sorry.

EPHRAIM: Oh. I think that that may have some relevance to the issue of cruel and unusual punishment if you're making an argument, which a lot of defense attorneys are doing these days, that the death penalty is cruel and unusual. It may backfire on him because my understanding of the execution chambers these days that is rather swift and it's rather, you know, not too much pain and not too much suffering. And that was the whole point in the lethal injection.

BATTISTA: Well, let's go back to the stay, the request for the stay. If that had ended up in your court, Judge Milian, how do you think you would have ruled?

MILIAN: Well, I have some mixed feelings about it for the following reason. I handled death penalty cases as prosecutor in Dade County quite a bit, and I always felt that time was something that was beneficial because the more pairs of eyes that got to see, review and approve a decision, the more comfortable I felt with the verdict that was handed down by the judge on a death sentence. So I don't -- on the one hand I feel as though what harm would there have been to have given the defense the same amount of time that the FBI had. I mean, the FBI found out about the mix up in January, and the defense ended up getting the documents in May.

On the other hand, the legal standard that the defense had to show to this judge was very, very high. And it was something that they could not meet. And I believe that Judge Matsch applied the law appropriately and made the right decision based on what federal law states now in death penalty cases like this.

EPHRAIM: But my problem with that is that you have now an execution taking place because the government mistake -- the government was required under the law to give all evidence to the defense, which may bear on the defense. It may have been accusatory, it may have proved the case. It may have been exculpatory. We don't know.

The point is I can't believe and I find it very difficult to believe that the FBI did not know that they had not given all of that evidence to the defense. And my problem with the execution is that the evidence that was missing may have had a bearing on the juror's decision in terms of the punishment, whether it may be life or death.

Also, you have the government disobeying the law, not applying the law appropriately in that they are required to turn over all evidence to the defense. And now because they failed to do -- to apply the law appropriately, you're going to go forward with the execution. What's the big rush? If the man is guilty, the evidence will still show that. What's the big rush?

BATTISTA: Let me get Judge Brown in here quickly.

Are you uncomfortable as well with this execution, judge?

BROWN: I've signed death warrants before. I've had many a death penalty case in front of me. The circumstances that you have here, I think, are typical of death penalty cases. Judge Matsch was well within reasonable reading of the state of the law at this point in time in his decision. I would say that the real issue here is caught up in the consideration of what we're really doing is giving the United States, that is the government, the opportunity to promote public peace, dignity and order, and also conform its own conduct to what's required by the Constitution.

So anything that would result in a delay here would be a slap at the FBI, which is an arm of U.S. government saying that this is a sanction because you acted in a lawless fashion. I doubt that it would have any difference in the outcome of the verdict relative to sentencing that was returned by this particular jury considering the gravity of the offense. However, I did not have all of the information that Judge Matsch had nor all of the arguments. I wasn't privy to that, so rendering an opinion as to what I would have done I believe would be improper.

BATTISTA: Did the...

EPHRAIM: But the point is that what is the rush to death? If, in fact, the evidence as established, based upon what was given to the prosecution and the defense, the jury came to that conclusion. And if the FBI is so certain of its evidence and how fair it was, and that the conclusion would not be any different, then what is the harm to allowing the defense the opportunity to go over the evidence?

BROWN: I'm not talking about the FBI. The FBI is not an opinion to bind anything with their opinion of a thing. It's the judge, Judge Matsch. He was the trial judge.

EPHRAIM: I understand that.

MILIAN: Can I just tell you something? There were 4,400 documents.

EPHRAIM: Thank you.

MILIAN: Four-thousand-four-hundred documents that were not given to the defense. However, to say that we don't know what those documents have is untrue, because -- I don't know because I haven't read the 4,400.

EPHRAIM: I don't know what they have.

MILIAN: The defense knows, the government knows, and the judge knows. They know. There's no...

EPHRAIM: How does the defense know in such short a time?

MILIAN: Because I have read the defense's petition to Judge Matsch for the stay, and there is absolutely no allegation that the time that they were given was not enough time to read the documents.

EPHRAIM: Well, maybe we have an issue of incompetence of counsel then, because I don't see how in the world...


BATTISTA: Let me get the audience...

BROWN: Ladies the argument is that there should be some retrial on the sentencing phase as a result of the misconduct of a government agency.

MILIAN: That's not the argument. The argument...

BROWN: That's one that will be advanced on the next appeal from what I picked up on. Right now...

BATTISTA: But as I understand it, the defense never -- did not make a case for fraud whatsoever.

BROWN: They did not make a fraud upon the court argument that was bought by the judge. And I don't think they had a strong argument for that. What they have here is a sanction case and that's all they've really got. It's not what they tried to prove on the front end, which was the FBI and the prosecution engaged in deliberate fraud upon the court. The judge did not buy that. And I don't think that's going to go very far on the appellate level.

EPHRAIM: Well, I think on the appellate level, they certainly...


BATTISTA: Let me get the audience in here quickly. Lamoja? LAMOJA: Lamoja, yes. To me, McVeigh's lawyer sabotaged them. They set the standard so high that they couldn't prove it. It was almost like he had an internal enemy as well as the FBI, who was acting as his enemy. It appeared to me that if they had done a due process and due process was denied because they were not given all the documents that they were supposed to have gotten because of discovery, and so if they had used that as the issue, then they wouldn't have set the standards so high trying to prove the intent. I don't think that they intentionally didn't give them the documents even though they could have because they'd done the same thing.

EPHRAIM: I think they intentionally didn't give it to them.

LAMOJA: Well, they've done that in Alabama with those people that were killed. the four little girl. For 30 years they held that tape. So there's possible that, that happened. But I'm saying that if you using that as a standard, it's too hard to prove. And if they had just done the due process argument, then there might have been a way to get to at the bottom of whether they really intentionally had done it or -- and McVeigh's lawyers would not have been conspirators in him dying and justice might serve.

BROWN: I don't believe his lawyers were conspirators. They did what they had to do based on the circumstances of the defense. You might raise the fundamental fairness issue. That's something that could be brought up. But you get pretty much locked into some constraints when you're trying to defend a capital case. And certain things you can do based on what you have in front of you.

EPHRAIM: And you get lots of constraints on appeal. And we all are certainly aware of those constraints. But the point is I think the defense should have made the argument that we have 4,400 -- it's been anywhere rumored from 4,000 to 4,500 documents to review. I don't see how they could have competently reviewed each of those documents in less than a month and determined that upon review of those documents...

BROWN: They might be able to do it in a couple of days realistically.

BATTISTA: I guess, you know, well, yeah, that just depends on what's in those documents, but let me go to Joe here in the audience quickly. Go ahead.

JOE: It is unfortunate that those documents weren't put up originally. But I think -- I personally am satisfied that a court has looked at those documents and determined there's -- it wouldn't change the final outcome. So OK, that's good enough for me.


BATTISTA: Let me ask -- I think there are a lot of people -- I think -- you know, what you guys. I think for a lot of people, what -- this case turned -- I think for a lot of people, this case turned when Timothy McVeigh admitted his guilt and took responsibility for it in that book that came out a couple of months ago. I know it's irrelevant, but I think that's when this case kind of turned in a way.

EPHRAIM: But defendants frequently...

MILIAN: It's not irrelevant, though.

EPHRAIM: No, it's not irrelevant.

BATTISTA: He did not admit his guilt in a court of law.

EPHRAIM: He never admitted it in the court of law...

MILIAN: The federal standard allows the court in reviewing what they reviewed to take into account not just the newly-discovered evidence that the defense is showing, but also any newly discovered evidence that the prosecution can show. The United States Supreme Court has spoken on that. So that's in fact, one of the things that they said, that the government said in their response to the defense's petition.


BATTISTA: All right, that's the last word on that. I have some e-mails here to read quickly, though, as we go to break. Christina says, "McVeigh committed a crime against the entire country. Why shouldn't this execution be shown on network television?"

S.J. says, "I still think something smells in the McVeigh case. If the end result would be the same, why is the Justice Department so adverse to giving his lawyers a shot in court, again?"

And David says, "I think the city of Oklahoma will finally be at peace."

All right, we're taking a break. And when we come back, we're switching topics as you know we do here on "Free-For-All Friday." A smoker wins a record $3 billion decision against Philip Morris. Would our TV judges throw out that award? We'll ask them when we come back.


QUESTION: Should there be a delay in the McVeigh execution?

UNIDENTIFIED MALE: And the fact that he's delaying this to get more publicity out of it and to further his cause I just don't think is right.

UNIDENTIFIED MALE: I mean, if they reviewed the documents already and said that there's nothing in the documents to say any different, he's admitted to the crimes, and I don't think so.

UNIDENTIFIED MALE: I think he should have got a stay. And the reason he should have got a stay is that there's something -- some other people that are involved in this. We need to bring that out.



ANNOUNCER: Radio talk show industry magazine "Talkers" lists the McVeigh execution as the top story of the week. That's followed by President Bush's tax cut, what the magazine calls the energy crisis, the Democrats' takeover of the Senate, and the Japanese school stabbing.

BATTISTA: All right, round two, and this is a passionate topic, we did it yesterday. A jury decides Philip Morris must pay $3 billion to a 56-year-old two-pack-a-day smoker. Richard Boeken, who has cancer, says he did not know until 1994 that cigarettes posed a health hazard. Philip Morris says it will appeal.

Judge Milian, excessive award or not?

MILIAN: It's excessive. I mean...

BROWN: Totally.

I'm not sure that there's too many legal commentators who are disagreeing that it's excessive. The compensatory damages in this case were $5 million and the punitives are $3 billion, which isn't really terribly related. But, you know, I think part of why it's excessive is because, with all due respect to the plaintiff in this case, he continued to smoke well after the dangers of smoking were known. And, you know, you're talking to somebody -- I stop people from smoking in zip code, because I find it such a noxious habit. My father kicked the habit after 35 years. But, you know, this is a fellow who says he kicked a heroin habit and an alcohol addiction but he couldn't kick smoking addiction?

EPHRAIM: But he couldn't kick smoking.

MILIAN: I mean, I don't know anybody who ever died from trying to kick the smoking habit. So I think it's excessive. But, you know, the court system to some extent has become like the lottery. And, you know, people are so happy to punish the tobacco industry that, you know...

BATTISTA: Well, Judge Brown, it's clear the jury was once again sending some sort of message.

BROWN: I think they sent a very good message. This character -- I don't think he needs to be protected from his own stupidity, but I do think that any purveyor of an addictive drug subsidized by the United States government to grow and distribute this drug is no better than the worst scoundrel of a perp on the corner trying to move cocaine or any other kind of narcotic. And $3 billion to me is not really enough. They should bankrupt them and drive them completely out of business.

MILIAN: Oh, come on now.

BATTISTA: Well, what about the federal government? You're going to go after the federal government too, then? BROWN: There's no redeeming virtue to what they are doing, and it is a disgrace and it is a shame for the 21st century to see the United States government still subsidizing the production of this highly addictive substance.

BATTISTA: Well, then why -- then I guess folks, we should be going after the government, too.

EPHRAIM: Well, I think you...

BROWN: You can't do that. Sovereign immunity.


BROWN: But you can go over some of your representatives and senators such as a few in high places in D.C. who come out of -- oh, what is it, Helms, sanctimonious Helms? He loves subsidizing the tobacco industry, getting on everything else. Well, I think the tobacco industry is purveyor of drugs. They are perpetrators of distribution of something that is the deleterious and very harmful to the American public.

BATTISTA: Let me get Judge Ephraim in here, also.

EPHRAIM: Oh, yeah, I take a totally different view. I think that society and the government and jurors and the law is going too far in rewarding people for their conduct and not holding people responsible for the decisions you make about your life personally. That is utterly ridiculous. And I haven't understood yet as a lawyer...

BROWN: Oh, I agree with you on that. I agree with you on that.

EPHRAIM: Well, let me finish, let me finish.

BROWN: He was a vehicle for them to punish the tobacco companies.

EPHRAIM: Yeah, let me finish. I think it's totally political, and I haven't understood yet how it got pass a demur that says that you even have cause of action because you smoked cigarettes and you contracted cancers. What are we going to do about alcohol? Alcohol is addictive. So when are we going to Seagrams and the rest of the alcohol distributors?

BROWN: Alcohol is not really addictive.

EPHRAIM: And what about caffeine? Alcohol is addictive and so is caffeine.

BROWN: It's not addictive. I drink it all the time, but I don't drink...

MILIAN: I'm here to tell you caffeine is addictive.

EPHRAIM: That's because you drink it a lot but you don't want to talk about alcohol being addictive.

BATTISTA: Well, you know, interestingly enough...


We talked about. Oh, where is my gavel?

EPHRAIM: This is ridiculous. Alcohol is addictive, caffeine is addictive. Are you going to sue the coffee growers?

BROWN: Oh, it's not...

EPHRAIM: Oh, yes, it is. Chocolate is addictive. Are you going to sue, you know, the manufacturers of that chocolate?

BROWN: Chocolate is addictive?

MILIAN: Yes, it is addictive.

EPHRAIM: Yes, it is. Chocolate is addictive.

BROWN: It is if you do it like they do in England and don't take the (UNINTELLIGIBLE) out.

BATTISTA: Order in the court.

EPHRAIM: It's getting to a point of absurdity. We are responsible adults and persons. We make decisions about our lives, what we put into our bodies. And we should live with that decision. No one forces anybody to pick up a cigarette. I was a cigarette smoker as well, and I realized when I smoked a cigarette what harm it was doing to your body. You just think any time you talk about inhaling something and it's going into your system, into your lungs, and then you pushing out...

BROWN: Well, I've never smoked a cigarette.

EPHRAIM: Come on, any common sense person knows that it causes you a problem.

BATTISTA: Let me get the audience in here quickly. Let me take Rick on the phone from -- is it Rick from Tennessee?


BATTISTA: Go ahead.

CALLER: Yes, I'd just like to say that this $3 billion judgment is totally ridiculous. He knew the risk involved in it just like I do. I'm a smoker. I've been smoking for 33 years. I know the risk that it's doing to my body just like everybody else does. But this is just -- this is just gotten totally out of hand.

EPHRAIM: It's absurd.

CALLER: You can go to court and sue anybody. BATTISTA: All right, Rick, thanks very much.

BROWN: This plaintiff is not deserving. This defendant is very culpable. This plaintiff was simply a vehicle for the jury to show its ire at the purveying of this drug and this highly addictive substance.

EPHRAIM: This whole lawsuit against the tobacco industry is politics.

BROWN: That's what the point is. It's punitive. Drive them out of business and make it hurt. Ten dollars, a hundred-thousand isn't going to hurt the tobacco industry. That's just their advertising budget over a few years.

BATTISTA: Let's go to Ron and Rick. Let's go to the audience and Ron and Rick here.

Ron, go ahead.

RON: I've got a few comments. Going back to originally what Judge Brown said, he stated that the tobacco companies are purveyors of a drug. That may or may not be the case. I may or may not disagree with that. But no one is forcing the American public to take that drug.

EPHRAIM: No one is forcing you to use it, right.

RON: Then Judge Ephraim brought up the point -- you're bring up a slippery slope where if you're going to sue for one drug that people consider drug, some people may not, you know, where's it going to stop?

EPHRAIM: Where does it stop?

RON: And again, another point is...

BATTISTA: Well, yesterday -- yesterday, we did.

BROWN: I passed out 25-year sentences for selling cocaine and heroin, longer than that sometimes.

BATTISTA: Well, yesterday a report came out...


BROWN: Fifty or 60 years for selling these drugs. So what is this? This is money.

EPHRAIM: You passed out 25-year sentences but nobody got compensated.

BATTISTA: Yesterday -- you know, we did make the point yesterday, you guys --

BROWN: The person that would tear down their community by dispensing this poison is a scoundrel. He is a slave and he needs to be a (UNINTELLIGIBLE) of bloody jail.

EPHRAIM: No one's compensated the poor little kid who died of a heroin overdose because their parent...

BROWN: Of course, not. Why not?. One drug is approved. One's very highly addictive. Another one is addictive and one's subsidized by the government. Real hypocritical here.


MILIAN: Can I pipe in here, Bobbie?

BATTISTA: Order in the court. Order in the court.

MILIAN: Bobbie, you need to put some order in the court here.

BATTISTA: I'm desperately trying. OK, a couple of e-mails, "Three-billion, is that all? Make it a trillion. They'll never see a red cent anyway."

Nick in Nashville says, "I don't understand how someone who obviously knows the harm of cigarettes can be awarded money. This country will be a lot better when people stop claiming victimhood in every situation."

All right, in a moment, the president's daughters enter their pleas today in connection with under-aged drinking charges. We'll tell you what they pled when we come back.


QUESTION: Have you ever used a fake ID?

UNIDENTIFIED FEMALE: No, but all my friends do.

UNIDENTIFIED FEMALE: I've never bought my own fake ID, but I've used them, yeah.

UNIDENTIFIED MALE: No, I have not. I've always looked old, so it's never been a problem.

UNIDENTIFIED MALE: I've never used a fake ID.

UNIDENTIFIED FEMALE: I'm leaving for New York today and so my parents can't ground me. Yes, I have.


UNIDENTIFIED MALE: Well, I got arrested for it, so absolutely.


BATTISTA: All right, we're back. The Bush daughters -- Barbara and Jenna -- are at center court again. This week, they are the cover story on "People" magazine. That's how far this is going. And late yesterday, Barbara pleaded no contest to under-age drinking and Jenna pleaded not guilty to misrepresenting her age while trying to buy a drink. The charges stem from a May 29th visit to an Austin restaurant, and an employee there reported the incidents.

All right, I think it's interesting that Jenna pleaded innocent to these charges. She may be concerned about the three strikes violation in the state of Texas, although I don't know, do you, whether that applies to misdemeanors? Anybody know?

BROWN: I don't think it does.

EPHRAIM: I don't think it applies to misdemeanors. It only applies to felonies.

BATTISTA: OK, well if these girls landed in your court...

MILIAN: She is, however, facing jail time.

BROWN: It was the other twin, not her.

BATTISTA: Yeah, my evil twin.

Judge Brown, if these girls landed up in your courtroom on these under-age drinking charges, how would you handle it?

BROWN: Same way I do anybody else who came in front of me. I think they are engaging in -- I'm a little concerned about their sound discretion and common sense. You know, like you present a fake ID, and everybody in the country is likely to see you on television. "Yeah, I know who you are. I see you all the time." You know, that is so dumb. And then you can drink anywhere you want to, get exposed all of the private parties you want, and you come up with a fake ID to use in public so you can violate the law. I think the principle is noblesse oblige, nobility has its obligations. And if your father is the president, you ought to act like it and treat him with some due respect and also your circumstances and don't get in any stupid peccadilloes like this.

BATTISTA: Well, we had a lot of folks in the audience...

EPHRAIM: I have another concern about that. Can I go from a different perspective?

BATTISTA: Yeah, go ahead.

EPHRAIM: I am going to go from the perspective as a parent in this particular one, as opposed to just a judge. I think that Jenna and Barbara both they cause me some concern in terms of what's really going on in their lives. Are they really having some problems deep- rooted with being the daughters of the president and being in the limelight, and having been the daughters of the governor, and are they going through a rebellious phase where they are truly trying to embarrass their parents? Not in terms of really thinking it through, but I'm talking about subconsciously, not consciously.

Secondly, and as a lot of young teenagers do and young adults do, they get off into rebellious behavior against their parents because they don't want to do what their parents want them to do, and they don't want to be the perfect little kids, like my parents want me to, and a lot of that happens. And that causes me concern. Secondly...

BROWN: Well, they could be locked up, just like anybody else, for violating the law too.

EPHRAIM: I understand that, I understand that. But secondly, Jenna just -- already got arrested for that. Here she is a second time around. Is she -- is there an alcohol problem there? Are we talking about alcoholism? Is she an alcoholic? Is she on a way to being an alcoholic? Is there lack of self-control over drinking and consuming that alcohol, knowing that she's already on probation?

It's similar to Robert Downey Jr. on probation, on parole, constantly getting arrested for drugs. What is going on?

BATTISTA: We don't really know anything about her drinking habit. She might have just been unlucky twice.

MILIAN: That's what I'm saying. There has never been an allegation that she was drunk, or anything like that.

EPHRAIM: No, no, no, I said my concern is, and the question I have to ask myself as a parent -- and if I were in their position, is what is going on with my child? Is she -- is this happening?

And thirdly, I think they are just being really silly. Like he said, you can go to many private parties, and alcoholism in college -- everybody knows -- you can try to cover up if you want to -- but it's done, it's typical on a college campus. Most of us who have gone to college, we drank alcohol underage. We've been served alcohol underage.


BATTISTA: ... well, that's not their responsibility from what we understand, but you know...

EPHRAIM: Well, it isn't. They are not...

BATTISTA: That's right, they are not in danger, you know. Judge Milian, is this a family matter, and should we all just butt out?

MILIAN: Well, I -- first of all, the fact of their arrest and the fact that Jenna -- you know, when Jenna first got arrested, I said: "Can't she just stay out of trouble while her father is president?" And then when she got arrested the second time, I'm thinking: "Can't she just stay out of trouble while the judge is still watching her?" I mean, it really is strange.

EPHRAIM: Something is going on.

MILIAN: On the other hand, these girls begged their father not to run for president. I mean, they really begged their father not to do it, because they had grave concerns over how it was going to affect their college years, and obviously it has. I mean, what they are doing -- I don't think it's some deep-rooted slap in the face to their dad for anything. I think they're acting like typical 19-year-old college students.

BROWN: Well, then they should pay like typical 19-year-old college students.

MILIAN: That is what they do. And that's exactly how they should pay, like typical 19-year-old college students and not more than that.

BATTISTA: Let me -- you know what, I have some young...


BATTISTA: I have -- I have -- we're running out of time on this one.

BROWN: This is so much disdain. We give everybody an excuse for breaking the law.

BATTISTA: We are running out of time on this one.

BROWN: You break the law, you get caught.

BATTISTA: ... and I wanted to get the audience in quickly. I have a couple of young girls in, and let me go quickly to Anna.

ANNA: I would like to say that I think it's very fair and it's great that here in America they get treated as anybody else, even though they are president's daughters. Like, me being from Russia, where everything is corrupted, no one would probably even know about something like that. So...

BATTISTA: All right, Anna. Thank you. Interesting perspective.

Coming up next, another case involving the federal government. Remember this face? We'll give you an update when we come back.


BATTISTA: All right, our next case for the judges -- and we are throwing a curve here, because this one is just to CNN a few moments ago. A federal judge has just ruled that Elian Gonzalez's Miami relatives can sue the U.S. government for alleged use of excessive force by federal agents during the raid to seize the boy. I guess in this case, Judge Brown, you can sue the federal government?

BROWN: Yes, this decision is not saying there are merits to the case, it's simply saying that the case may proceed to determine whether the allegations have merit. That's all.

EPHRAIM: Yeah, it's just like any other case when you are talking about whether the police used excessive force in conducting a search warrant, or in coming into a house to arrest someone, or to seize property, et cetera. So, all the -- all the court has said is that they simply have the right to proceed on the cause of action. But I thought we were finished with Elian. Is he back?

BATTISTA: Yeah, well, how -- what -- OK...

MILIAN: There are a lot of people who have not forgotten that.

BATTISTA: Yeah, let me ask you this, Judge Milian. Judge Milian, what are they going to have to show to proceed with this case?

MILIAN: Well, they are going to have to show that the force that was used was excessive under the circumstances and unnecessary. But you know, all that really happened today was that the judge didn't throw out the case, which is what...

EPHRAIM: They threw out the lawsuit.

MILIAN: ... the government had asked them to do. But you know, I mean, I live in Miami, Florida, and I worked for Janet Reno, and this whole city was, you know, turned up upside down during this whole thing, so yeah, Elian has not exactly gone away, not quite yet.

BATTISTA: So, I am guessing the videotape that we all saw over and over, or the still pictures...

EPHRAIM: Well, the part of the videotape that we saw. I am sure that we didn't see it all.

BATTISTA: Right. Would that -- that would be the strongest evidence?

EPHRAIM: And we don't know...

MILIAN: Well, I mean, you know, the picture that was aired over and over again on Easter weekend was the picture of the AK rifle pointed right at the boy with the supposed fisherman who was hiding him in the closet, and I don't care which side of the fence you stand on this issue, you know, that had to rip people's souls out.

EPHRAIM: But it didn't rip my soul at all. It didn't rip my soul out at all.

MILIAN: I am not surprised.


EPHRAIM: ... because of the fact that they had no idea what was going to be on the other side of that wall when they went in there, and the family were given an order to turn the child over, and again, they had a choice: turn the child over. When you disobey court orders, then there are remedies to that. And the remedy to that was the FBI went in and they seized the child.

BATTISTA: Let me ask you this: who will define what is excessive?

EPHRAIM: The jury. BATTISTA: So, OK, so this will end up being a jury?

BROWN: There will be some charges or instructions given to the jury, and the jury will make the determination. If the proof does not come up to the legal standard, then the judge will issue a directed verdict at the conclusion.

BATTISTA: Well, I guess that is what I am asking. What is the legal standard?


BATTISTA: Who sets the legal standard for excessive?

EPHRAIM: It's already been set. The standard is, you cannot use any more force than is necessary under the circumstances.

BATTISTA: Well, that's a subjective determination, isn't it?


EPHRAIM: A lot of it is subjective, in terms of deciding excessive force, but it's no more than is necessary. I'm sure the government will have experts to testify as to what was necessary and why they used the method they used, and the defense would have...

MILIAN: That's what it's going to boil down to. It's going to boil down to what intelligence information they had that would lead them to believe that the people inside were armed. And you know, I don't recall the people inside actually being armed, but that's not the standard -- not if they actually were, but did they have a reasonable belief that they would be.

EPHRAIM: Right, reasonable belief that they may be harmed, may be in danger.

BATTISTA: The audience has some comments on this here. J.B.?

J.B.: Well, I had a question, and did they not have a court order to go in there, and was it -- were they -- Elian's family not aware of that court order? Did they think the government was going to sit back, given the historic propensity of how the government acts, and not come in and take the boy?

EPHRAIM: There was certainly a court order for them to deliver the child, and in order for the FBI enter there was a court order giving them the right to enter.

BATTISTA: Yeah, we should also say that the judge in this ruling said that the attorney general and the immigration chief did -- not conspire to violate their constitutional rights. It also found that the government's arrest and search warrants were legal in this particular situation. So, I guess this is...

(BELL RINGING) BATTISTA: Nice timing. That'll be an interesting one. We'll have to keep following it and see what happens to it. We have to take another break. When we come back, New York divorce court: the mayor, his wife and the other woman. We have to ask Judge Ephraim about that, so we'll be back in just a moment.


BATTISTA: Welcome back. The gossips and the tabloids are having a field day, as you know, with New York Mayor Rudy Giuliani's divorce. It is a messy one, and now Giuliani is threatening to sue the "New York Post" for a story that is printed suggesting the mayor and his girlfriend, Judith Nathan used the St. Regis hotel as a love nest last month. The mayor lashed out at the media for reporting the details of his estrangement from his wife, Donna Hanover. Among other things, Hanover has secured a restraining order preventing Nathan from visiting Gracie Mansion.

This just gets worse and worse, Judge Ephraim. I imagine if this one landed in your court.

EPHRAIM: Well, it's a typical divorce court. That's why I tell you that divorce court is real, so you see it happening right before you in New York. So when you hear those stories on our show that sound a little bit ridiculous, you know that they're not. But what's happening here is I think Giuliani has to realize and acknowledge the fact that he's a public figure. Now, the First Amendment allows you some reporting privileges under that, but it does not allow you to go off into negligent reporting. You have to have at least have some reasonable belief that what you're reporting is true. And he may or may not -- he may have a cause of action if, in fact, it's not true.

But if it's not true that he spent the night at the St. Regis Hotel, maybe he spent it at some other hotel. But I think that for him to sue is just going to ill open up a bag of worms. It's going to make it worse for him, because then they'll just find out which hotel, or which house, or where did he really spend the night with his lover. He needs to leave it alone.

BATTISTA: You know, you just have to take -- this is another case of a stupid pill. I mean, don't you think?

EPHRAIM: Stupid pill.

BATTISTA: I mean...

EPHRAIM: He's in the limelight. He's a public figure.

BATTISTA: He's been in public life for a long time.

EPHRAIM: Right. This is not new to him. Does he really think they're going to ignore him? Come on, be a responsible adult. Set some examples for your constituents, for your family. Respect your children and your wife enough. Leave the woman alone until the divorce is over. That's all he has do! Just control himself.

BATTISTA: Judge Milian?

MILIAN: You know, he's been such a good mayor for New York in so many respects, I think it's sort of tragic that his legacy is going to be the behavior during these proceedings. But, you know, divorce does some wild things to people. It really...

EPHRAIM: Yes, it does.

MILIAN: You know, the pulling of the Yankee tickets, the pulling of the -- it just, you know, who knows? I'm not in his shoes. I don't know how bitter the things have been back and forth, but, you know, I agree that he just needs to -- you know.

EPHRAIM: Cool it.

MILIAN: Suck up. Suck it up and just -- stop. He keeps going to the press and then he complains about what the press says. But you know...

BATTISTA: Well, that's an interesting question about the lawyers' tactics that were used in this case, Judge Brown?

BROWN: I think the whole thing is boring. I can't see why anyone would be even slightly interested in it.


BROWN: Go find yourself something to do in your own life and stop having -- what is it -- an "Inquiring" mind? You know, this is sordid.


BROWN: Let somebody have some privacy and some peace. It's got nothing to do at all with his performance as a government official.

BATTISTA: Oh, wait. We heard that argument once before.

EPHRAIM: Well, if he wants to have some privacy, do what he does in private. But as I say on "Divorce Court." it's always the best people at their worst, and you see it happening right before your eyes. Giuliani, the best, a governor, you know, with all of this prestige, acting stupid. BROWN: Frankly, I find it appalling that anybody would be interested. Go find yourself something to do in your own life.

EPHRAIM: But now, Joe, you know that people -- people are interested in public figures.

MILIAN: If he uses his office to further whatever venom he has against his wife, it's interesting. It's newsworthy, and it deserves to be reported by the media.

BROWN: I think it's boring. I wouldn't even read it, let alone look at it. Why bother with it?


BATTISTA: Did you not pay attention to the president's...

BROWN: Oh, it's two people who can't get along with each other anymore. Let them go part their own ways. Get her a life, and he can carry on with his life and split the money or whatever the equitable..

BATTISTA: Let me get the audience and see if they care.

EPHRAIM: But the point is, he hasn't gotten a divorce yet, and he is a public figure.

BROWN: Well, he doesn't -- he isn't owned. That's passe, you know? You've got papers on somebody, there's some contracts for responsibilities, but I mean, you don't own somebody.

EPHRAIM: But you have a responsibility as

BROWN: He doesn't have to stay there with somebody he can't deal with. Let him go on with his life.

EPHRAIM: But he hasn't left. He hasn't left.

BATTISTA: Let me get the audience in here quickly. Dale, go ahead. DALE: As my friend John Frazier says, never argue with someone with someone that buys their ink by the barrel. They don't have to have an accurate story, They're going to simply sell more papers, and if he takes them to court they'll sell more papers covering that story.

EPHRAIM: That's right.

BATTISTA: All right, and Loretta on the phone in New Jersey.

EPHRAIM: And he's giving them the ammunition.

BATTISTA: Go ahead.

CALLER: Hello?

BATTISTA: Go ahead, Loretta.

CALLER: Yes, what I want to say is that Rudy Giuliani, too bad that he's upset and angry. He's got his own Republican cronies to thank for opening a can of worms. They lynched President Clinton day after day, month after month.

EPHRAIM: To death, yes.

CALLER: And what can he expect? He's flashing this paramour all over New York, and if you are going to be in public office then you have to be either squeaky-clean or a saint or a eunuch.


EPHRAIM: Or accept the consequences of your behavior.


BATTISTA: We will let that will be the last word on that one. All right. We'll take a break and continue here in a moment.


BATTISTA: Sony admitted earlier this week to fabricating a movie critic to give favorable reviews to some of its films. A class action lawsuit filed yesterday seeks to have the studio refund the money of thousands of movie patrons who went to see the films the fake critic glowingly reviewed.

Let's get a quick comment from our judges on that story before they go on whether you think this class-action suit has a chance? Judge Milian, let's start with you?

MILIAN: Well, you know, this is an example of what I said earlier about the justice system becoming a lottery for some people. In this case the best that the plaintiffs in a class-action lawsuit will probably get is a free movie ticket. But the lawyers will get rich. On the other hand, you know, what other way do we have to slap Sony for not watching their executives more closely. This has to go as one of the most bone-headed moves of any executive ever. Big thumbs down.

BATTISTA: Judge Brown?

BROWN: This is about the most ridiculous thing that I have ever heard in my life. Just think about it: You don't know who this critic is, but you see something designated as a critics or relying on an unknown person who are, it turned out to be, a fictitious person, and you go see it and then you have the audacity to claim, unmitigated gall is a good phrase for it, to say that you were duped into going to go see this. You should be ashamed to even put your name to be associated with that. You should get dumb, stupid, idiot, ignoramus of the year award.

BATTISTA: I've go to let that be the last word because we are out of time.

EPHRAIM: And Joe and I don't usually agree but that one's 100 percent.

BATTISTA: Our thanks to Judge Ephraim, Judge Milian, and Judge Brown. Thank you all so much. Appreciate it.

BROWN: Nice being with you, ladies.

BATTISTA: Before we go, we here at TALKBACK LIVE and CNN are losing a family member today. Executive Vice President and my boss, Gail Evans is retiring after 21 years at this network. She was here at the very beginning and among so many other accomplishments, she helped create TALKBACK LIVE so she'll be leaving us to share her experiences with others. She's going to write another book. And she's going to spend more time with her loved ones and we wish her only the best and we will miss her.

Have a great weekend, everybody. We'll see you Monday.



4:30pm ET, 4/16

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