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CNN Burden of Proof

What Does President Bush's Plan for Embryonic Stem Cell Research Mean for the Future of Biotechnology?

Aired August 10, 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.
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DR. CURT FREED, STEM CELL RESEARCHER: The restriction of the research to the existing stem cells could be a big problem. Mainly, we don't really know how to grow human embryonic stem cells at this stage in the game, so that by restricting the research to the existing cells we may have cells that have already changed. They may not still be stem cells.

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SEN. ORRIN HATCH (R), UTAH: There is one worry though that I would raise, and that is the little more than 60 stem cells lines are in the private sector right now, and I'm concerned whether those are enough.

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TOMMY THOMPSON, SECRETARY OF HEALTH AND HUMAN SERVICES: The evidence seems to indicate that you're going to be able to continue to replicate these embryonic stem cells. For how long nobody knows for sure.

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GRETA VAN SUSTEREN, CO-HOST: Last night, President Bush announced his long-awaited decision about funding for stem cell research. What does his plan mean for the future of biotechnology?

Plus, the killing of Martha Moxley. Another witness in the case is found dead. What impact will this have on the trial of Michael Skakel?

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

VAN SUSTEREN: Hello, and welcome to BURDEN OF PROOF.

Last night, President Bush announced he will support limited federal funding for stem cell research. In his first presidential address to the American people, Bush said federal grants may be used to conduct studies on existing stem cells. However, the president noted that he will not permit funding for research that involves the creation or destruction of additional embryos.

ROGER COSSACK, CO-HOST: This decision, which some aides say is the president's most important to date, still leaves a great deal of unanswered questions. Where exactly does this leave us? What does this mean for science and technology? And how will this impact existing and future medical research?

Joining us to discuss the president's decision, from New York, Dr. Joseph Fins, director of medical ethics at Cornell University. And joining us from Washington, Kelly Fry; former commissioner of the FDA and now an ordained Presbyterian minister, Frank Young; and Jordan Connors.

Dr. Fins, I want to start right with you. We know that the president has said that federal funding will be limited to the 60 stem cells that are in existences now. Is that enough to do -- to accomplish the purposes that stem cell research is hopefully going to accomplish?

DR. JOSEPH FINS, MEDICAL ETHICIST: It's a tentative first step, but I don't think it really is enough. I think there are a lot of unanswered questions about where these 60 stem cell lines are, whether they're in the United States, whether they're offshore, whether they're proprietary and owned by industry. Will they be for sale?

I think there are a lot of unanswered questions about -- also about the biological stability of the stem cells that are in this immortal line.

COSSACK: What about the biological -- what do you mean by that? I thought that stem cells -- it is my understanding stem cells can just reproduce and reproduce.

FINS: Well, these are -- these are in a line, and we have questions about their stability, whether they've changed, and also about their diversity. The biodiversity of 60 stem cell lines, will that be enough to do the kind of research to really address the public health needs of all Americans.

VAN SUSTEREN: Frank, the issue, of course, is federal funding for this research. I'm curious, no one's talking about private funding. Is the costs just so exorbitant that we don't -- that private funding isn't even an issue?

DR. FRANK YOUNG, FORMER FDA COMMISSIONER: I think private funding is available. Geron and other companies have started doing this, but there is a risk, because there is a great concern of the ethical issues associated with it. And I do believe that Dr. Haseltine, who is head of human genome research, aptly said that this will not be something that large pharma will rush into.

VAN SUSTEREN: But when you talk about risk, I mean, you know, we talk about corporations doing it privately or an individual. We don't -- I mean, it's not the ethical issue, because the government would share that same ethical issue. It's whether it's cost-effective, whether anyone could ever, you know, make money on it and whether it is being done.

And I guess that's my question. To those who are dissatisfied with the president's decision last night, can they be satisfied that it's being done in the private sector?

YOUNG: I think they can be. There will be enough action to push that in the private sector, in my opinion. However, that still does not obviate the moral issues that the president raised.

VAN SUSTEREN: Dr. Fins, do you agree that the private sector can sort of pick up where the federal government leaves off for those who are disappointed?

FINS: I think there's a paradox. We might have had a greater opportunity to regulate what happened under the broad umbrella of the NIH and federal funding than be bequeathing, as it were, to the federal -- to the private sector or offshore entities. So I think that in a sense we might have been able to do more if it had been more within the government purview.

COSSACK: Dr. Fins, if in fact the government is limited to only these 60 and private industry is then left to sort of pick up the ball, then -- how can we expect, at what rate the research will go forward?

FINS: Well, I think that's a real issue. I mean, we're debating the moral status of embryos. We all agree that people like Michael J. Fox and others who have illnesses that might be helped by stem cell research are real live people. We don't debate their moral status. I think they have a claim on the most expeditious, the most rapid scientific advance that is possible.

So I think by limiting it in this way -- it's a symbolic first step, but it will definitely slow down the progress.

VAN SUSTEREN: Dr. Fins, explain to me, I have heard -- I have heard so much about this in the last few days, but that we're talking about maybe 100,000 embryos that will either end up with federal research, which now the president says no, or else they get discarded. Is that right? They just get tossed out.

FINS: As I understand it, there are only two states in the country that prohibit the discarding of embryos that are byproducts, to use a euphemism of in-vitro fertilization. But in other cases, they're either discarded or they're left in a permanent state of being frozen. So they're not going to be used.

VAN SUSTEREN: And Frank, that's what I -- Frank, that's what I just don't get. That's why I'm having a hard time understanding it. If the choice is the trash can basically, to be so crude, or the possibility of, you know, saving someone's lives or restoring vision or solving the problem of Alzheimer's and Parkinson's, why is that such a troubling issue, I mean, if the trash can is the other option, Frank?

YOUNG: There are three things that need to be looked at from a scriptural standpoint and one from a scientific that really have not been said. First of all, the basis of those that believe as I do is really the sanctity of life created in the image of God. The second is...

VAN SUSTEREN: All right, let me stop you there, and taking that issue. Why does that -- why does that issue, though -- how do you look the other way on sort of dumping the other ones in the trash can, though? I mean, how is that different?

YOUNG: OK. Our colleague from New York made the point, he said the byproducts of in-vitro fertilization. The largest unregulated area of medicine in the United States is the reproductive in-vitro fertilization clinic.

VAN SUSTEREN: But no one's squawking about throwing them in the trash can, they're squawking about using them for stem cell research.

YOUNG: I don't...

FINS: For some greater -- using them for some greater good.

VAN SUSTEREN: I must be -- I can't get this one. So try me again, Frank.

YOUNG: OK. The reason that it's wrong, in my opinion, is that we are now making human beings into products to be sacrificed and used for the benefit of the living. Now...

VAN SUSTEREN: And that is better -- and that is a worse problem or worse from a scriptural sense than tossing it in a trash can...

YOUNG: Let me -- let me add the second point. The urge that I would do is to have these adopted. There are a variety of people throughout the United States that I know and counsel every day that are looking to have children and can't even do it by in-vitro fertilization.

COSSACK: But Frank, isn't -- let me just suggest to you -- and I've heard that argument about the adoption -- the adoption alternative. But in fact, that just doesn't happen, does it? I mean, last week or two weeks ago people on your side came to Congress with three children who were adopted as embryos. But in fact, there is nowhere near enough people to call for those adoptions. And in fact, as Greta points out, they will end up in the trash can.

VAN SUSTEREN: Well, you know -- you know, Roger, even a bigger problem than that, I have friends who are scrambling to go off to other countries to try to adopt children because everybody stands in the way of even adopting. So, that isn't even a resolution -- there are so many obstacles even adopting.

YOUNG: But I don't believe that this has been made widely known. There is the Snowflake Foundation and others, and actually by giving publicity to this, I believe that the opportunity for adoption will occur, because just as you said, Greta, lots of people...

(CROSSTALK)

VAN SUSTEREN: But that -- but let me go back to Dr. Fins. (UNINTELLIGIBLE) the adoption issue, there's a lot of people to whom these embryos belong do not want to give them away for adoption, because they don't want to see their children being scattered...

FINS: Right. I mean, they may have -- they may have chosen to have one child or two children. They may not want to have a whole clone, as it were, of individuals out there who are members of their family, but really are not part of their family. So I think that in an idealized world, Dr. Young's point is an interesting one, but we have to then talk about child care, and the administration position's on early education and Head Start and all the other things for all these adopted clones.

VAN SUSTEREN: Well, I guess adoption is better than, I mean, tossing in a trash can. Tossing in a trash can is a worse solution than trying to save lives with stem cell research. That's what it boils down to. Am I right?

YOUNG: I think that's the arguments that are out there.

COSSACK: I think, though -- I think, though, that the realistic argument is that no matter there will never be enough adopted -- adoptive need for all of the embryos and all of the stem cells that are now presently in a refrigerator someplace. I mean, it's not going to happen.

VAN SUSTEREN: And you know what, Roger, I've got to tell you. I think that sort of dangling this out, you know, the 60 stem cells, dangling it out to the people in this country who are very sick or have relatives who are very sick, you know, in some ways, instead of giving them the opportunity when they're going to be thrown in a trash can, is an -- a very poor choice.

YOUNG: Since the name of the show is "Burden of Proof" let me play with the name.

VAN SUSTEREN: OK.

YOUNG: I believe the burden of proof really lies on those that feel that the adult stem cell will not be adequate.

VAN SUSTEREN: But the -- from what I understand, the beauty of the sort of the stem cell we're talking about is that it has not yet identified what it wants to be. It's not like the mature adult cell, which is so much harder.

FINS: And can I...

COSSACK: And that's really a scientific decision.

VAN SUSTEREN: Yeah, go ahead...

(CROSSTALK)

YOUNG: And there also is a possibility that it will become neo- plastic.

VAN SUSTEREN: Dr. Fins, do you want to get in?

FINS: My "Burden of Proof" is more of a theological one for Dr. Young, and that is really, are these -- are these stem cells, these embryos from which the stem cells are to be drawn, are they -- are they really viable? We know that a lot of fertilized eggs on day four do not implant. Are they viable? What is the moral status of something that is in a test tube and it's frozen that is yet to be within the womb of a mother? Is that viable? And does that have the same theological standing as something that has been implanted or is going toward term?

COSSACK: And Frank and Dr. Fins, I'm terribly sorry to have to end this conversation now, but it's our time to take a break.

Our thanks to Frank Young and to Dr. Joseph Fins.

Up next: the latest in the murder trial of Michael Skakel. What happens when a key witness dies before a trial? Don't go away.

(COMMERCIAL BREAK)

COSSACK: Gregory Coleman, a key witness for the prosecution in the trial of Michael Skakel, died of an apparent drug overdose on Tuesday. Now, Coleman is the second important witness to die before the trial, the first being a witness for the defense.

Michael Skakel is charged in the 1975 beating death of his neighbor Martha Moxley. Joining us now to discuss the latest in this case are in Stamford, Connecticut, Michael Skakel's attorney, Mickey Sherman, and from Hartford, the attorney general of Connecticut, Richard Blumenthal.

Mickey Sherman, right to you, does this -- does the death of this witness end the case against your client?

MICKEY SHERMAN, DEFENSE ATTORNEY: No, it certainly doesn't end it. He's one witness. I know the state has others. They've put others before the probable cause hearing and a reasonable cause hearing, and they'll go forward.

COSSACK: But this is a witness...

VAN SUSTEREN: Dick, Dick -- let me ask Mick about this...

COSSACK: This was a witness, Mickey, who said that your client had confessed and said that he had gotten away with murder.

VAN SUSTEREN: Right. I mean, he was -- he had enormous impact, not so much, I don't believe, on the trier of fact, but on the media and the press. I mean, it was a full screen, full page of "The New York Post," "I'll get away with murder because I'm a Kennedy." But again, his cross-examination revealed that he was on heroin when he testified before the grand jury. He was going through the withdrawal of methadone and heroin when he testified at the probable cause hearing.

And that's problematic now, because the state's going to try and put his testimony, his transcript into evidence without any cross- examination fresh.

VAN SUSTEREN: Dick, that's -- that's where I was going to go into the other question in terms of using a transcript from someone who has testified in a hearing that hasn't been cross-examined. Is there some Connecticut statute that permits that, because typically you have a right to cross-examine witnesses against you?

RICHARD BLUMENTHAL, ATTORNEY GENERAL OF CONNECTICUT: Well, there was an opportunity to question this witness, as Mickey Sherman has just said, because the point about his prior use of heroin was the result of cross-examination during that preliminary hearing. There was no cross-examination during the grand jury testimony, but the transcript would be of the preliminary hearing. And law in Connecticut, as it is elsewhere, is that hearsay is admissible if the declarant is unavailable, as occurred here. And...

VAN SUSTEREN: But here's the problem, Dick, is that I've done preliminary hearings, I've done trials. And the strategy as a defense lawyer oftentimes is profoundly different. During a preliminary hearing, you might be trying to get all sorts of information. During the trial, you might want to be more of a architect in terms of the questions you ask. And so, that -- and you don't ask all the same questions.

BLUMENTHAL: Absolutely, right. But as long as the opportunity is there, and as long as the issues are similar or the same, our strategy may be different, but the opportunity is what's important. And I think bottom line here this testimony will have much diminished importance, because obviously the line about getting away with murder because I'm a Kennedy isn't going to have the same impact...

VAN SUSTEREN: That sounds horrible. Dick, I've got to tell you, if I were -- Mickey can defend himself and his client. But I'll tell you, that's the last thing, if I were representing Michael Skakel, I'd want the jury to hear.

BLUMENTHAL: Well, it probably is, but the jury isn't going to hear it. They're going to -- they're not going to hear it from the witness.

VAN SUSTEREN: Yeah. And they're not going to see it from a heroin-addicted guy maybe sitting on the stand with glassed-over eyes. Instead they're going to have -- they're going to put a young prosecutor on the stand to read it.

(CROSSTALK)

COSSACK: Mickey, will the jury be told that this witness died of a heroin -- of a drug overdose? SHERMAN: I sure hope so, but you know, let me just go back a second. They will see him testify, because during the cross -- my cross-examination, which, as you point out, Greta, it's limited. It's not limited merely because I'm going after a different thing. The judge is not going to give me the same latitude as I'm cross-examining someone in a trial where it's proof this a trial proof beyond reasonable doubt in front of a jury.

As you know, a judge in a probable cause hearing says, well, you know, it's a slight threshold: We don't have to go there, we don't have to go there. But what I did during that probable cause hearing, which people are forgetting about, is I played the video of Greg Coleman testifying -- or not testifying -- giving a TV interview to channel 10 in Rochester, the NBC affiliate up there, where he basically said the same thing: I'm going to get away with murder, I'm a Kennedy."

VAN SUSTEREN: But Mickey, I've got to tell you is that when you have -- you know, the way that it's done when someone dies is that you have someone else get on the witness stand and read it as though the person were alive. And they're going to put some very well-dressed, nice, responsible, intelligent person on the stand to read the transcript. It's not going to look like a heroin addict.

SHERMAN: I'm telling you, that video is going in. They will see Greg Coleman. And when he gave that interview he testified in court in Stamford he was on heroin and crack, as I recall, or speed. So they're going to physically see it. It still is not the same. It's how can you cross-examine a transcript.

And also, the written word is a lot more effective in some ways than the spoken word for someone whose credibility is very much diminished.

COSSACK: Mickey, was there an allegation that when this man testified at the probable cause hearing that he was under the influence of drugs at that time?

SHERMAN: It wasn't an allegation! It was a declaration by the state's attorney, who came to us the second day that Coleman was on the stand and brought it to the attention of the court, which is something that the state's attorney, John Benedict, would do.

COSSACK: Well, then don't you have a right to ask that that whole -- all that testimony be struck as inherently unbelievable?

SHERMAN: You better believe it, and I think that's the linchpin that we haven't spoken about. It's not the fact that I was given a cross-examine privilege. It's not just the fact that it's the same issues involved. But there has to be some basic trustworthiness and reliability of the testimony that was given.

We know he was under the influence of heroin and methadone at the time he was talking about this on the witness stand. I don't know how that's going to pass muster. VAN SUSTEREN: All right. Well, we're going to take a quick break. When we come, I'm going to ask Dick Blumenthal how difficult it is to try a high-profile case that's this old. Stay with us.

(COMMERCIAL BREAK)

VAN SUSTEREN: 26 years later, Michael Skakel is on trial for the 1975 murder of his former neighbor Martha Moxley. This week, a second witness in the case died.

Dick, to you, a high-profile case, very old, very serious, young girl, then 16-year-old, was murdered, still not -- still not solved, at least no conviction. How does a prosecutor deal with a case like this?

BLUMENTHAL: Well, of course, I am not the lawyer in court, thankfully.

VAN SUSTEREN: But isn't -- but I mean, looking, I mean, like from the big picture how difficult is it?

BLUMENTHAL: Very difficult in a case this old without any physical evidence, DNA samples, any of the other kinds of proof that a prosecutor ordinarily might have. And so a witness like Coleman, particularly against one of the most able and articulate lawyers in the state of Connecticut, like Mickey Sherman, would be very hard-put to make this case, and it's a challenge. There's no question about it.

VAN SUSTEREN: So why -- I've got to tell you in reviewing -- and you know, juries can surprise you. I've seen convictions where I didn't think there would be some and I've seen the reverse. But in this case, you know, it's like at what point does a prosecutor say: "Look, I don't think I can actually convince a jury beyond a reasonable doubt. I may think the person's guilty or I may think that, you know, for whatever reason." But when does a prosecutor dump the case?

BLUMENTHAL: That is exactly the kind of decision that bedevils all of us as prosecutors, as public servants, because ultimately, as Justice Jackson once said, our responsibility is to do justice, not necessarily prosecute people for the sake of solving a crime and being able to checkmark a particular incident.

So the question here for Mr. Benedict will be what is the probative value of the other evidence that he has. And he said that he will try this case, to quote him, "without batting an eyelash." And I take him at his word.

COSSACK: Dick, what about the point that we raised in the last block, this issue of losing testimony, of this man dying, but apparently, admitted by the prosecutor, that he was under the influence of drugs when he testified. Now, I know you're not the lawyer in court, but isn't it rather difficult for a prosecutor to get up and say, we want this read, we vouch for this witness, even though we know he was loaded at the time he gave the testimony? BLUMENTHAL: You know, with all due respect to the witnesses we bring to criminal cases, they very often are not choir boys or model citizens.

COSSACK: Well, this isn't choir boy. This is a guy who's loaded on the witness stand. This isn't a guy who has a bad reputation.

BLUMENTHAL: And someone who was in rehabilitation, someone whose testimony will have to be assessed by the jury for whether it is reliable. And all those facts, assuming that this testimony is admissible, even though it's hearsay, will have to be evaluated by the jury.

There's no question that his credibility has been diminished. Remember, also, by the way, the defense lost a key witness when Mr. Ricci, the founder of the Elan School, died back in January, because he was going to say, if he'd been given the opportunity of testimony, that he had never heard this kind of confession from Mr. Skakel.

VAN SUSTEREN: Mickey, do you have a trial date?

SHERMAN: No, we have hearings scheduled next Wednesday...

VAN SUSTEREN: What kind of hearings?

SHERMAN: Discovery motions, and also the motion to dismiss based upon the statute of limitations issue.

BLUMENTHAL: Remember, Greta, also that all of this may be moot. All of these issues may be academic if the state Supreme Court rules that the transfer from juvenile to adult court was in error. And Mickey will be arguing that issue before our state's highest court in the very near future.

COSSACK: Mickey, are you going to make another motion to dismiss?

SHERMAN: Not based on Coleman's death. No, I don't think it's appropriate. John Benedict says he has other witnesses, and he's a very -- very similar guy to Dick Blumenthal: very straightforward, very correct. I figure I might as well kiss up to Dick since he said such nice things about me.

(LAUGHTER)

COSSACK: All right, you know -- you know, when the kissing up starts is when we end, because I'm afraid that's all the time we have today.

SHERMAN: Got it in.

(LAUGHTER)

COSSACK: Thanks to our guests. Thank you for watching. In just a few moments, the parents of Chandra Levy are expected to hold a press conference to announce the launch of their own missing persons foundation. So stay with CNN for live coverage from Modesto, California.

VAN SUSTEREN: And tonight on "THE POINT," we'll look inside the science of searching for a missing person. How have the investigative tactics changed? That's 8:30 p.m. Eastern Time. And we'll be back Monday with another edition of BURDEN OF PROOF. See you then.

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