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CNN Talkback Live

Legal Roundup

Aired July 03, 2001 - 15:00   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.
KYRA PHILLIPS, HOST: Is Congressman Gary Condit trying to cover up an affair? A flight attendant tells FOX News he is, and she is concerned about her safety. The Chandra Levy mystery deepens.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: We are anxious to find out what the basis of these allegations are.

(END VIDEO CLIP)

PHILLIPS: Paula Poundstone charged with child endangerment and lewd conduct, says she's innocent.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: If you have nothing to hide, what's the big deal?

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: I think that there was an invasion of privacy.

(END VIDEO CLIP)

PHILLIPS: Does her face match the criminal profile? Crying eyes want to know, and they are taking your picture on the streets of Tampa.

Grab your gavel and join the legal round-up.

And welcome to TALKBACK LIVE. I am Kyra Phillips in for Bobbie Battista.

We have a legal round-up plan and we'll introduce our panel of judges and lawyers in just a minute. We're going to start first with the latest developments in the Chandra Levy investigation.

Police have new information of when the Washington intern disappeared and a flight attendant claims, Congressman Gary Condit suggested that she engaged in little cover-up. Anne Marie Smith told FOX News she had an affair with Condit.

(BEGIN VIDEO CLIP)

ANNE MARIE SMITH: And I said, you know, it was just a retained questioning, they said that they would keep my name confidential. He was really upset with me. He said, oh, I see how you are. I see what you are doing. And I said, no, you know, I've never been in a situation like this. You know, I realize he's -- he told me, he said, you don't have to talk to the media. You don't have to talk to anybody. You don't even have to talk to the FBI.

(END VIDEO CLIP)

PHILLIPS: And joining us now is CNN national correspondent Bob Franken. He has been following the story.

Hi, Bob.

BOB FRANKEN, CNN CORRESPONDENT: Hi, Kyra.

PHILLIPS: Why don't we start off and talk about Anne Marie Smith. How credible is this woman? Where does this stand, this testimony that she's giving?

FRANKEN: Well, it depends on who you want to believe. Anne Marie Smith has been reported to have had a romantic relationship with Congressman Condit. Now Congressman Condit through the spokespeople has not confirmed or denied there was that kind of relationship. If you can contrast that to the Chandra Levy matter, if the reports that Condit had a romantic relationship with the intern who disappeared on the end of April of the 1st of May.

He has emphatically denied there was a romantic relationship. The next question, of course, is whether the allegation made by Anne Marie Smith that they had a romantic relationship, has anything to do with the Chandra Levy case. The one thing that has caused everybody's attention to be -- is the fact that Anne Marie Smith claims that she was being urged by Condit and one of the investigators involved to sign an affidavit. A sworn statement. That would have been false. That could have constituted perjury, had she done so. She said she was not going to have anything to do with that.

PHILLIPS: Bob, how did the FBI find Anne Marie Smith in the first place?

FRANKEN: By news reports. Not only news reports, but news reports in a tabloid -- one of the tabloid newspapers, the "Star". After that came out, the FBI decided, the Washington police decided in concert with the FBI that it was probably worth while to talk to her, to see that if in any way, she could shed any light on Congressman Condit on the possibility that he talked about Chandra Levy, that type of thing.

So they did their interview, and according to various sources we have talked to, she really did not have an awful lot she could add. PHILLIPS: Meanwhile, the FBI, obviously, it looks like is investigating Condit's background. Would you say that's a fair statement to make?

FRANKEN: I suspect that they would say it overstates it a little bit. What they are trying to is to try to find the missing person, Chandra Levy. In the course of the investigation, the are looking at any leads that they can find. Of course, Congressman Condit has, from almost the beginning, has been mentioned prominently as we all know, of having some sort of relationship with Chandra Levy.

And the FBI along with the Washington, D.C. Police, the ones who are leading this, are trying to see if Condit or his relationship can shed any light into the whereabouts of Chandra Levy.

PHILLIPS: Meanwhile, the search continues for her. Also, Mrs. Condit. Anything knew with her?

FRANKEN: We are still waiting to find out if the FBI agents, who were detailed to talk to Mrs. Condit, have actually done so. We've been told that there were some fits and starts, that they have tried to make the arrangements with that, that that has not occurred.

And the main reason they want to talk to her is when Congressman Condit was first interviewed by police about Chandra Levy, he did not mention that his wife was in Washington, when -- when she was -- when Chandra Levy disappeared. So the second time that they talked to Condit, they asked about that. It had come out in the media that he was claiming that Mrs. Condit was here in an effort to say that he was not in fact talking to Chandra Levy.

So, now the FBI agents want to see if that jibes with what they heard from Congressman Condit and if she has any other information, which, again, will point them towards the whereabouts of Chandra Levy.

PHILLIPS: Bob Franken, thanks very much for the update.

Time now to meet our panel. In Miami, Ellen Morphonios, a retired circuit court judge and former prosecutor, once known as "Maximum Morphonios."

In Washington, former federal prosecutor Solomon Wisenberg.

In New York, criminal defense attorney and former New York federal prosecutor, Pamela Hayes.

In Los Angeles, criminal defense attorney Arthur Barens.

Thank you for being with us today.

I will leave this open to any one of you to begin. Let's talk about Condit in general and his behavior. Who thinks Condit is not behaving in a natural way?

(CROSSTALK)

PAMELA HAYES, CRIMINAL DEFENSE ATTORNEY: What is natural? What is natural?

You have to say, if he is a suspect, is he behaving as a suspect would? Some people would say, yes. But somebody who's not charged with a crime, I would say that he's behaving the way I would want my client to behave. I wouldn't want him to make any statements. I would just want him to continue to do what he is doing. Let the police make their case, and then we'll wait and see what happens.

PHILLIPS: Sol?

ARTHUR BARENS, CRIMINAL DEFENSE ATTORNEY: I will concur with that myself on the basis that if it were my client, I would tell him certainly anything that he says will be used against him. Certainly, this has been sensationalized to begin with, and any morsel of evidence, any slight thing that he says will be interpreted to suggest that something inappropriate. He has nothing to gain by being communicative right now, except on the private level with the family.

PHILLIPS: Sol, do you agree with Arthur and Pam?

SOLOMON WISENBERG, FORMER FEDERAL PROSECUTOR: I do not disagree with them necessarily, but it is certainly not intelligent for him to be sending out false affidavits to potential witnesses. I think that everybody would agree, if he did that, that was an incredibly unwise move.

PHILLIPS: We have an e-mail here that comes from Eileen in Coral Springs, Florida. The question says:

"I think that most important thing the public is forgetting with all this gossip about Gary Condits' affairs is that Chandra Levy is still a missing woman."

BARENS: Indeed, missing. It's hard to say what her circumstances are, obviously, although, when she was missing this long, one might assume foul play, but again, there has been no connective tissue between the Congressman and her being in a missing condition. Certainly, there's many other suspects that could be possible here, not to mention a lot of people disappearing in Washington in general.

PHILLIPS: Ellen, should Condit be more helpful in this situation?

ELLEN MORPHONIOS, RETIRED CIRCUIT COURT JUDGE: I don't know if he can be that more helpful. That seems to be the problem. He is between a rock and a hard spot. He's obviously been caught doing some things normal married men do not do. If he says too much, his wife is going to come at him. If he doesn't deny it, then you're going to have the FBI coming at him, or why don't you tell us something? Which is exactly where she at.

Nobody knows where the young lady is. And we need to be awfully careful about tying him, the suspect, to any kind of a scenario that we don't have yet. I hope we never do have. But you have to remember, this man at this point, not only hasn't been charged with doing anything, but there hasn't been any proof that anything has occurred. Although, it may have.

PHILLIPS: Does anyone agree that foul play is not an option here?

MORPHONIOS: Oh, it's an option.

HAYES: It's an option.

PHILLIPS: Anybody...

HAYES: It's always an option, because you can't rule it out. Until have you enough facts to create a picture to say it was either a suicide, an accident, a kidnapping or foul play, you just can't rule out any scenario.

PHILLIPS: When it comes to a Congressman, may be Arthur or Sol, you can jump in and answer this, is questioning any different than with somebody else? Or the proceedings of an investigation because Condit is a Congressman?

BARENS: No, he has no immunity from being questioned -- it might be a scheduling issue, but as we saw during the examination of President Clinton, he was as subject to deposition proceedings in a civil case, or inquiry as anyone else.

Of course, if it were a criminal prosecution, which we are a long ways from, certainly the Congressman would have has Fifth Amendment protections like any other citizen would. On an informal basis, however, he can be questioned as could any other individual.

PHILLIPS: Sol, the testimony from this flight attendant -- does this advance the case at all, do you think? In any way?

WISENBERG: If it's serious, I mean, if it's true, it's very serious, because even if his motive, even if he had nothing to do with the disappearance of Ms. Levy, if -- if his motive is irrelevant, because if he was urging this person to lie, he has criminal exposure.

If he's urging her to rely on a false affidavit either in court or something that he can give to the FBI or the Washington police, he has potential criminal exposure, irrespective of the underlying issue.

BARENS: Well, I think that what has to wonder in -- in underscore the fact of, how do we know this is a false affidavit in the first instance? And we also wonder, what would precipitate the initiation of such an affidavit, perhaps this individual had attempted to blackmail the Congressman, I am not saying that's the case.

But why would he request such an affidavit? And why would we jump to the conclusion that it is an accurate one to begin with?

HAYES: You know, one of the things that I think we have to factor in is: What is the motive of the flight attendant coming forward? From the press releases, it says that he dumped her. So the first thing I'm thinking is, does she have a motive to stretch things? To create things? Why is she coming forward? Most people would shun the limelight, especially when they have been involved with a married man. This is not anything to come forward.

And this whole thing about her being fearful of her safety, I don't see it. I am sure we're going to be able to dig up a few more girlfriends, and nobody's going to be afraid. I am very suspect of her motives of coming forward. Especially when it initiates into the "Star".

(CROSSTALK)

PHILLIPS: We will hold that thought and continue with the conversation. We will take a quick break.

And later this hour, we will talk about the street cameras in Tampa, Florida to take your picture to see if you have been doing anything illegal. Do they help catch criminals or are they an invasion of privacy? Take the TALKBACK LIVE on-line viewer vote at cnn.com/talkback. AOL key word: CNN.

We'll be right back.

(COMMERCIAL BREAK)

PHILLIPS: Welcome back to TALKBACK LIVE.

We are continuing our conversation about the Chandra Levy investigation. The search for her and everything surrounding that case. We will go to some audience questions.

Avi, what is your comment or your question?

AVI: Well, I think that it's quite ironic that politicians generally flirt with the media, manipulate the media when it suits them. When they want the publicity they are very happy to open the door wide and show how great they are in public life.

And yet, as soon as they do something that is slightly shady, they're the first ones to slam the door and claim rights to privacy. I think that if you are a politician or indeed in public life and you manipulate and use the media, you want the attention, then it's only fair that when you do something that's slightly shady, you can't turn around to the media and say, no way, guys, it's a private affair.

PHILLIPS: Ellen?

MORPHONIOS: I don't believe that there is any showing that he's done anything wrong yet. Except cheat on his wife. They don't put people in jail these days for cheating on their spouse, although, sometimes I think that maybe they should.

But I don't know that he's been manipulating the media. He's talking to them. He's saying, I deny it, I don't know what you are talking about.

PHILLIPS: Is he coming out and saying enough though, Sol, Arthur, Pam? HAYES: Enough for who? It's not enough for the media and the public who might be interested in, you know, some scandalous material. But he -- if he will be the focus of a criminal investigation, as a criminal defense attorney, I'm saying, don't say anything. You know, but -- it's all according to what are you looking for?

BARENS: Well...

PHILLIPS: Arthur?

BARENS: I think that we have reason to believe that he has been extremely cooperative in a private sense with the family. If the goal of the investigation is to find the young lady, then I think that he has been helpful and we have no reason that he hasn't been in dealing with the family and in dealing with the police authorities on a private level. Certainly, he may not be able to give them the information they want. Or they anticipate. But I don't believe that we have any reason to believe that he hasn't been totally forthcoming in a private sense.

PHILLIPS: All right. We will go to another question/comment from the audience -- Jonathan?

JONATHAN: According to the chat room, a couple of people are saying having an affair is unethical but not illegal, the last that they checked. And next one, Condit is covering up his relationship which shows he has something to hide.

My personal opinion, being from Los Angeles, seeing the story over and over again, it's interesting of how he avoids the topic. And fact that the lady is coming forward -- it's kind of -- I don't know what her motives are for coming forward, but it looks kind of weird that he is avoiding the topic.

PHILLIPS: Do we know of what she is saying is true or not, Sol?

WISENBERG: We don't know that. But if it is true, it's very serious and I understand from the report on your show at the top of the hour, that she spoke with the FBI. If she repeated to the FBI what she said in her press conference, and she lied about it, then she's in serious trouble.

Certainly her motives should be looked into it. But her motives are irrelevant if she is telling the truth. And if she's telling the truth, he's done something very stupid and he's got some new exposure.

PHILLIPS: Ellen, where do you think that the FBI is going with this investigation?

MORPHONIOS: I am sure they are examining everything that they can find that will tell them where the missing young lady could possibly be located. At the time that has gone by, I am sure that they believe that foul play is involved. And that they are proceeding accordingly.

They also know they have a tiger by the tail. They have a Congressman as the number one guy in their eyes that they think may know more than he's saying. They are looking under every rock, they're examining every piece of paper. The young lady that showed up, the flight attendant, you're going to bet that they're going to find out if she's just looking for publicity. That will come out.

As to whether a man who's cheating on his wife tries to do a soft shoe around it, not admit to it, he'd sort of be a fool if he wanted to come. If he comes out, and says, yeah, I cheat on my wife all of the time, there goes that marriage! So, naturally, he's going to be a little reluctant to discuss that issue.

PHILLIPS: All right. Let's go to the phone call, Dwayne is on the line from Ohio. Go ahead, Dwayne.

CALLER: Hello, I really don't understand the connection between her missing and this so-called affair. I mean, having an affair is not illegal. It's not a crime as the woman on the panel said.

At the same time, are they accusing him of foul play? Are they saying that he had something to do with her missing? I never heard that come straight out by anybody yet.

BARENS: I don't think anybody said that because there is no basis upon which to predicate that kind of a comment, it would be a dangerous and an inappropriate thing to say.

The fact of the matter is, unfortunately, he may be caught in a crossfire, whereby he's covering up an affair on the one hand, which makes him look suspicious in terms of her disappearance where there is no connection whatsoever.

PHILLIPS: All right, you guys hold on just a second, we are going to go back to Bob Franken. I understand we have some developing news in this investigation -- Bob, what do you have?

FRANKEN: Well, we have statements from both Congressman Condit and his attorney Joe Cachet out in San Francisco.

Very quickly to review, the flight attendant in her interview with the FOX News channel said, that she was urged to sign an affidavit saying she did not have the romantic relationship with the Congressman, an affidavit that she says would have been false.

Now, first, the statement from Congressman Condit, we're just getting this so I will share it with you. "I have repeatedly urged," said the Congressman, "anyone who has any information that could help the police find Chandra Levy to come forward and tell all they know and be as forthcoming as possible."

And a reminder, of course, that the investigation of the disappearance of Chandra Levy is at the core of all that we've been covering.

Continuing with the Condit statement: "I have not asked anyone to refrain from discussing this matter with authorities, nor have I suggested anyone mislead the authorities." Of course, Condit denying the claim that was made by Anne Marie Smith, the flight attendant on that interview. That, in fact, Condit had urged her to sign the affidavit, that was not true.

We also have a statement, as I pointed out, from the attorney for Condit, the San Francisco Attorney for Condit. Joe Cachet. He says that: "The original allegation that Condit had a romantic relationship with the flight attendant appeared in the "Star" Magazine, which is a tabloid newspaper." Cachet says, "We located the flight attendant and called her on the information on the report. She indicated it was totally out of proportion and that her roommates were paid by the "Star" to talk about her.

It goes on to say, that she "was very cordial but also, very, very embarrassed." And then Cachet goes on to say, he contacted the attorney, the family attorney of the flight attendant Anne Marie Smith, who is Jim Robinson of Seattle.

Going on with the statement, "We called Mr. Robinson, asked if his client would provide the statement on her relationship with Congressman Gary Condit specifically in regards to the allegations in the "Star."

Mr. Robinson asked -- this is a vital part of this -- Mr. Robinson, the attorney, asked that a draft statement be sent to him that he would review it with his client and make the changes as necessary.

Now, what the Cachet office has done, they have enclosed the copy of this affidavit, that is the sworn statement in which it says, "Here is attached the declaration, please edit, cut, suggest, et cetera." What the Cachet statement is trying -- the point it's trying to make, is that this was just a suggested statement, not something where they were urging Anne Marie Smith to swear to something under oath that she did not believe to be true.

So in any case, we have gotten the statement from Congressman Condit and from his attorney, the key line of course is from Condit. "I have not asked anyone to refrain from discussing this matter with authorities. Nor have I suggested that anyone mislead the authorities." So that is the latest development. It is just out from the Condit office after nearly, about 20 to 21 hours after the interview was first played on the FOX News channel.

PHILLIPS: All right, Bob. Bob Franken, thank you very much.

Let's go back to our panel of guests. Ladies and gentlemen, you're reaction. Maybe, Sol, we can begin with you. You're a former federal prosecutor. What do you think about these statements?

WISENBERG: I think the statement of the Congressman is remarkably Clintononesque. If Bob read everything there, he does not specifically deny -- specifically deny the statement of the flight attendant. And he said something really interesting, what Bob called the key statement, I have never asked anybody to lie to the authorities. I don't think that the affidavit itself says that it's going to be given to authorities, and I think the flight attendant said, he just mentioned to her, the Congressman, you don't have to talk to anybody.

So I think that the statement is remarkable for what it doesn't say. With respect to the lawyer, it is significant that along with the affidavit, he sent the note that said, you can edit this to make it correct, and we have to assume that the lawyer is completely innocent of any knowledge of the relationship.

But if the Congressman indeed had an affair with her for a year, then he knows that that draft statement isn't true. What he's doing is sending her a statement in effect. If he knew that it was being sent, here is a false statement, edit it, if you want. So the key is: Did the Congressman know the statement was being sent to the flight attendant?

PHILLIPS: Pamela, I saw a little slight grin on your face. Yep, there you go! I want to respond.

HAYES: This has nothing to do with Chandra Levy. I want to know where she is. If she's still alive, I want her home with her parents. To get bogged down in all of the side as to whether he had a romance with some flight attendant, who cares? Only his wife cares. Only he cares. Only the flight attendant cares.

It has nothing to do in spending all of this resource of money on that, is ludicrous.

PHILLIPS: We have an e-mail with Santa Ana, California: "If they have no evidence on the Congressman, then public speculation should rest solely on finding Ms. Levy. Sol...

BARENS: It might be a good idea to....

PHILLIPS: Arthur?

BARENS: I think that it's a good idea to keep focused on that again. And now we have this Congressman being bashed about of having affairs here and the focus seems to be much more on his personal life, than it does on hers. I think that there are very interesting questions that remain unresolved about why she disappeared on the 30th of April or May 1st and she was not due in California until her graduation on the 11th of May. I think that she was last seen April the 30th, or May 1st.

What she was planning to do after she packed her bags during that week?

There are a lot of questions like that that have not gotten a lot of attention. Yet, we spend the time talking about a stewardess who reluctantly comes forward with her story.

PHILLIPS: E-mail from Lauren of Missouri: "Your panel of lawyers are adamant that the Congressman is innocent until proven guilty and then they turn around and not so subtly suggest that the flight attendant has ulterior motives and is lying. They are all acting like defense attorneys by trashing the witness."

HAYES: She's not a witness to anything. She has nothing to tell us about Chandra Levy. So, you know, that's why I am a little trashing, if you want to the use that terminology. She's not a witness. She didn't see any abduction. She didn't see anything. So why do even care about who she had a relationship with?

(CROSSTALK)

BARENS: Not to mention she is indicting...

WISENBERG: She is possibly involved of obstruction of justice. That's why we care about it.

HAYES: Are you kidding!

WISENBERG: You can't obstruct any investigation.

HAYES: Are you --

WISENBERG: Are you telling me that...

HAYES: The investigation into what? I can't believe that you said this.

WISENBERG: She is indicting the Congressman by claiming that she's afraid for her safety, suggesting that the Congressman was involved in something inappropriate with this missing young lady. I think that she is...

BARENS: When did she suggest that?

WISENBERG: When she said that she came forward because she was concerned about her safety, and that's the rationale or the justification for her coming forward. Why would she be concerned about her safety, if the implication is that the Congressman is some nefarious character here that we have to be afraid of?

(CROSSTALK)

WISENBERG: All of those are very legitimate points. But to say...

PHILLIPS: I am sorry. Sol, go ahead and then Ellen, I'll have you respond.

WISENBERG: All of these are legitimate points about the flight attendant but nevertheless to say that we don't want to talk about -- or its irrelevant if somebody asked a potential witness to sign a false affidavit is ridiculous. The fact is that there is an investigation of a missing person, it involves the Congressman, and if he asked a potential witness to sign a false statement, that is relevant.

It's preposterous to pretend that it isn't, unless you are on his defense team or want to be on his defense team.

PHILLIPS: Ellen, respond and -- Ellen was going to say something and then we'll put the topic to rest. How's that sound? Go ahead.

MORPHONIOS: What I was concerned about, but they are right. It's extremely irrelevant. Anything that has anything to do whatsoever with the conduct of the people involved is relevant. But my question is: Did she go to the police first? Or did she go to the tabloid first?

Therein the answer to that question will tell you everything. If she went to the police and said, look, I'm afraid, I need protection, this is what I've got -- yiddiddy-yiddiddy-yiddidda -- then it's an extremely serious thing. If in fact the congressman asked her to sign a false affidavit, that is a crime and extremely serious. But from what we just heard with the affidavit involved and the statement, change it to make it say what it is true, that's certainly not suborning perjury.

HAYES: Well, it wasn't an affidavit. They said it was a statement. An affidavit is something...

MORPHONIOS: OK. I stand corrected.

HAYES: ... that's under oath.

MORPHONIOS: I stand corrected. You are right.

PHILLIPS: All right, and on that note...

MORPHONIOS: Still the same difference.

PHILLIPS: And on that note -- oh, boy, they're going to be arguing during the break, I think -- we're going to move on to a bit of a strange case against comedian Paula Poundstone. We're going to look at that next.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

STEVEN M. CRON, PAULA POUNDSTONE'S ATTORNEY: I don't think it was necessary.

QUESTION: Why?

CRON: Because I don't think -- I don't think they need protective orders against Paula. She has been a wonderful advocate of children's rights and I don't think anybody needs to be protected from her.

(END VIDEO CLIP)

PHILLIPS: Welcome back to TALKBACK LIVE. Standup comic Paula Poundstone went back to court today in Santa Monica, California. She was arraigned on charges of lewd conduct and child endangerment. The charges involve children younger than 14. Poundstone had pressed to have her arraignment date moved up. Her lawyer says she's anxious to learn the basis of the charges. Poundstone has three adoptive and two foster children. They're all in protective custody right now.

Let's go back to our panel of guests. Maybe before I start off with the questions that I have, could I just get a little bit of reaction from the four of you to sort of see where you stand on this case? Some have called it bizarre, strange. What do you think, Sol?

WISENBERG: I don't know how any of us can stand anywhere. She's innocent until proven guilty and we know virtually nothing about the charges.

PHILLIPS: Does anybody disagree with that on the panel?

MORPHONIOS: No, as I understand it...

HAYES: Absolutely not.

MORPHONIOS: ... she doesn't even know what she's charged with.

PHILLIPS: All right, let's talk about these charges, because I think there's some confusion. When you're talking about a celebrity and children and lewd conduct and touching a child, it gets confusing and it also raises a lot of concern.

I have it here exactly stated that the charges are three counts of lewd acts upon a child against a single female victim under the age of 14 years, which would involve the elements of the offense or any type of touching a child under the age of 14 years for a sexual purpose. The fourth count is a charge of child endangerment involving four children.

Let's talk about the lewd act first. Does this mean that a child was definitely touched or not?

BARENS: It has to mean that. In order for those charges to be sustained, there would have to be a touching that would have a sexual connotation to it, otherwise it would be looked at as a battery. However, I think we have to be careful. I've been involved myself in many cases where there's been testimony of children that has been misinterpreted, which is easily the case even with the most innocent of comments -- also, eyewitness testimony as far as the conduct observed between an individual and a minor where misinterpretation of that conduct is very easily the case. So I think we have to be careful here in -- in what's being said and the conclusions drawn.

Again, Ms. Poundstone spoke extensively with the police officials before she was arrested, as we understand it. I'm surprised that she's being prosecuted for things that evidently had been discussed unless there's supposedly some really good (UNINTELLIGIBLE) evidence.

PHILLIPS: Well, and it also said that she was being extremely cooperative, so why would she be arrested?

BARENS: I have a hard time with that. HAYES: Because they have probable cause. They must have some sort of probable cause to arrest her and arraign her. Generally, when you have a complaint, a complaint specifically alleges what the person has done, what the conduct is, where and when. And in this particular instance, it's a little odd because we don't have any details.

Usually, it will say count one charges Paula Poundstone with May 25th she did this, she touched so and so. Even if you don't reveal the child's name, you give the details because you have to be able to defend against it. So I think it's a little different that we don't know any details.

PHILLIPS: Ellen, what do you think, because you've handled so many cases involving children?

MORPHONIOS: Yes, as a prosecutor and as a judge. It's highly out of the ordinary for someone to be charged like this and there be no more details than there are.

The police are in the position where if a child has made this allegation, and they have looked into it, and in their opinion they believe yes, it happened, and the allegation is made and is made under oath, they can't make it go away. They can't just pretend it's not there. They have to proceed and do their job.

The fact that it involves a celebrity makes it that much bigger. But what we must -- I mean, of all the charges in the world, to be charged with sexually molesting a child is about as bad as you can get. So we must be extremely careful with how we talk about it and see what comes of it.

PHILLIPS: All right. Many comments, of course, coming from our chatroom. Chris, what do we have?

CHRIS: In the chatroom, they say, "It would be so hard to prove until Paula confesses." Another person says: "Some children really have vivid imaginations and like attention, even like this."

PHILLIPS: Arthur, what do you think about that?

BARENS: Well, I hasten to remind everybody of the most infamous of these cases, which was the McMartin case here several years ago in Los Angeles where a multitude of children charged the operators of a day-care facility with all sorts of bestiality and sexual inappropriateness, et cetera, and it all turned out to be a concoction of an overly ambitious news crew and some people that were ill -- had ill motivations and these children had been inappropriately coached.

So again, I'm going to agree with the judge's statement. We have to be extremely cautious here in how -- in what conclusions we jump to. Things can be very easily is misunderstood and misinterpreted here.

PHILLIPS: And Arthur, I was reading, you were mentioning that this could be -- I guess it adds a little twist. You say that Paula Poundstone has sort of a nonconformist attitude. What do you mean by that and how do you think that's playing a factor here?

BARENS: Well, I think our society has some resistance to people that are different, and all one has to do is look at Paula Poundstone, she looks a bit different. She certainly has a reputation of nonconformity. I think we have a problem with people like that. It makes it a little more facile and easy for us to jump to conclusions that they might have tendencies to inappropriate behavior.

I certainly think that is a wrong conclusion to draw. But certainly, when you look back through the history of this country, we do tend to be rather judgmental toward nonconformists.

PHILLIPS: Pamela, do you think that Paula Poundstone is sort of being held at a different standard?

HAYES: I think when you have charges against people that concern children, people tend to get very concerned. I think it would be the same way as anybody. It just so happens that she's a star, she's a personality, so the people, the media focuses in on it. But whenever you have a crime that involves children, everybody gets upset and it's very difficult to wait. And that's what we have to do.

PHILLIPS: Is she ever going to be able to get these kids back? Ellen, what have you seen through cases that you've been on?

MORPHONIOS: Well, if it is proven that she has in fact committed a sexual abuse of a child, she will be in a very difficult position to show that she would be an acceptable mother. But first, that must be proven. Just the charge itself, that's only a charge. Until it's proven that she has committed a crime, then it should not be held against her.

I understand, of course, that they want to take the children out of the home just as a temporary thing until they can make a full investigation and see what they've got. The police don't know right now what they've got. They simply have an accusation and they're protecting the children. But on a permanent basis, it should not interfere.

PHILLIPS: All right. It's time to take a break. Up next, who is watching you? Why are those street cameras in Tampa taking your picture? We're going to talk about that coming up.

In 1986, a Houston women threw six of her children into a bayou. Four were rescued by bystanders, two drowned. Her lawyers said she was driven to her actions by an abusive husband. She pled no contest and was given 10 years probation.

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PHILLIPS: Acme Rent-A-Car in Connecticut used GPS systems in its cars to track renters who were speeding and automatically add fines to their credit cards. Each time the system registered a car speeding for more than two minutes, the customers were charged $150. The state department of consumer protection wants the company to stop the practice. Acme agreed to offer refunds to past customers and more clearly outline the policy to future renters.

Smile pretty, you might be on criminal camera. Cameras in Tampa, Florida scan the faces of passerbys looking for those who match criminal files. A good way to catch criminals, maybe. But what about the Fourth Amendment? What about your right to privacy?

Sol, the people know the cameras are there, so what's the problem, right?

WISENBERG: Well, it's -- it's not really a Fourth Amendment problem. It's really more of a policy issue. I don't think you're going to be able to make a successful Fourth Amendment challenge if people know they're being filmed because you don't have a reasonable expectation of privacy under the case law. But I think it's a very disturbing practice in that a lot of practices we shouldn't put up with as free citizens, and we have the right to insist through legislation and executive action that they stop.

PHILLIPS: Is it...

MORPHONIOS: What...

PHILLIPS: Go ahead with that, Pamela.

MORPHONIOS: No, it was Ellen.

HAYES: Ellen.

PHILLIPS: Go ahead, Ellen.

MORPHONIOS: I was just going to say, as you walk through a big appliance store you have the little cameras all through the store putting your face on every television that they are selling. When you walk through the airport, you know that in many instances you're being photographed. There is no expectation of privacy. In some cities, if you run a traffic light, it takes your picture. The picture is you and the one who's a passenger in your car.

I don't see what the problem is. You know they're going to be doing the photographing. If you haven't done anything wrong, why are you worried about it?

PHILLIPS: OK, Ellen -- Ellen brings up a good point. I asked the audience, you guys, if anybody here had been caught on surveillance tape. I think you'd be amazed by how many hands were raised, and it was for speeding. That was one. And also, Eric back here was bold enough to tell us his story. Eric, tell us what happened and do you think cameras are a good idea.

ERIC: Yeah, I think cameras are a good idea. When I was a little kid in kindergarten, I was caught shoplifting crayons.

(LAUGHTER)

But actually...

PHILLIPS: But you learned your lesson, didn't you?

ERIC: Yeah, I learned my lesson, but I think cameras are a real good idea. It's no different from the police radar traps. You don't know about those, and they -- you get caught there. And in a lot of buildings, there's a lot of cameras. And it's no big deal, you just live with cameras, and there are people doing background checks or whatever. It's no big deal really.

PHILLIPS: Pamela, what do you think: privacy issue, policy issue?

HAYES: I think it's more of a policy issue, because it's not, you know, Fourth Amendment-based. We are out in public areas. The group of people who are being looked at, it's not a single individual. It's everybody. Like in Tampa, I think they had set up cameras at the Super Bowl. When the people came in, they were looking for the people who had warrants.

I don't have those types of issues. But I do have issues with a car company that attaches your credit card when you're speeding because they think you're going to get caught, so they are charging you anyway. Something like that is different. You have a reasonable expectation of privacy.

In this instance, I agree with the other speakers that you don't have a reasonable expectation of privacy, especially when it's a group. But if you want to peer into somebody's house, that's different.

PHILLIPS: All right. We've got a phone call.

BARENS: I think...

PHILLIPS: Go ahead.

BARENS: I think we have to balance as lawyers. We all get involved with this concept of expectation of privacy, which is certainly legitimate. I think the other side of that is balancing it with an entitlement to privacy and where do we draw the line. I think it's a much different consideration to photograph a car running a red light than to it is to indiscriminately photograph and surveil individuals engaged in normal conduct going through shopping centers or walking down the street.

I think we all have an entitlement to privacy. Whether there's an expectation in a public place that we have privacy, I think we have an entitlement to it under those circumstances.

I think there have to be limits on the government's intrusion and ability to intrude in our personal lives.

PHILLIPS: Danny on the line...

WISENBERG: Well, the key...

PHILLIPS: Go ahead. We'll take a quick phone call. Hold that thought. Danny from Kansas, go ahead.

DANNY: I have to agree with the last gentleman, in a department store, in a mall, it's posted: "These premises are under surveillance." On a public street, one is walking, one is busy doing one's own business, there is no need to be photographed by a police department. And this type of behavior will keep me at least from visiting Tampa.

PHILLIPS: Sol, we've got...

MORPHONIOS: (UNINTELLIGIBLE) city, by the way. It's not the whole city of Tampa. It's a suburb called Ybor City.

PHILLIPS: And Sol, you had a comment before we go to break, about 20 seconds.

MORPHONIOS: Well, two key issues. No. 1, is it the government doing it or a private department store? I have the right not to go to that private department store. The other issue is I don't necessarily care if 80 percent of the public is used to having their privacy invaded: It doesn't mean I have to have mine invaded.

PHILLIPS: All right. We'll take a quick break. We'll be right back.

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(BEGIN VIDEO CLIP)

TOM GREEN, POLYGAMIST: This is not about ego, because I didn't select these women. They selected me. I didn't propose marriage to them. They proposed to me.

(END VIDEO CLIP)

PHILLIPS: Coming up tomorrow, TALKBACK LIVE takes a closer look at the world of polygamy in the United States.

Well, just when we got all warmed up, we're out of time. Thanks to our guests, our studio audience, and to you too for joining us.

I'm Kyra Phillips in for Bobbie Battista. She will be back tomorrow. Hopefully, I'll see you again soon. Have a great day.

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