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Death Penalty Among Issues for Sniper Prosecutors

Aired October 25, 2002 - 10:45   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.


LEON HARRIS, CNN ANCHOR: The death penalty is just one of the issues that prosecutors are trying to sort out today. Specific charges have to come first. The sniper spree covers at least seven jurisdictions. Prosecutors in each one of them wants to try the case. Now they have to decide who's going to be first.
Our legal analysis Jeffrey Toobin is going to be the first with us this morning to talk about this, explain what's actually at stake.

How are you doing -- Jeff.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Good, Leon, how are you doing?

HARRIS: Oh, no too well today. As you can probably tell.

TOOBIN: Me either, actually. We both have a cold. I lied when I said I was doing well.

(CROSSTALK)

HARRIS: Listen, let's talk about what's happening here with this -- first of all, we haven't even seen charges filed yet in the sniper shootings. We just heard moments ago at the Montgomery, Alabama, they're preparing to start filing charges down there. How does all of that -- just give us an idea of how this would typically work -- I don't know if I can use the word "typically," because this thing is pretty rare -- but how does all this sort itself out?

TOOBIN: It's not unusual for several different prosecutors to be looking at the same defendants. Turf battles among prosecutors are actually very common. And they really are worked out through meetings and through negotiation. They are often very testy and controversial. Usually when you have a situation with several different states involved, you get the feds, even if they are not a participant, to kind of mediate.

Usually, there are two factors that are the key determinants of who goes first. The first is simply who has the best case, who has the best evidence. You always want to win a case first, so you always want to bring the strongest case first. So prosecutors know what a strong case is and they argue about that.

The second issue is what might be called sweat equity: Who put the most in to the investigation. That is also not always clear, but certainly in a case like this, that would favor Montgomery County, because that is really where most of the attacks have taken place and where most of the investigation has taken place.

HARRIS: Wouldn't Montgomery County take primacy pretty much on both of those counts, then?

TOOBIN: Probably it would, but as you mentioned earlier, the death penalty is the wrinkle in this, which does not favor Montgomery County since -- I know it's an unscientific poll, but I think it's pretty consistent with how both prosecutors and the public feel about this case. In Maryland, to the moment, has executed just, I believe it's three or four people since 1976. Very few. They are now in the middle of a moratorium imposed by the governor. That could end, but clearly, it is not a place where the death penalty is imposed very often. Plus, under Maryland law, 17-year-olds, people who commit crimes at the age of 17 -- as John Malvo did -- may be accused of doing -- cannot be executed at all. They could be executed in Virginia. Virginia is number two in the country of executions, behind only Texas.

HARRIS: A distant second too, we might add.

TOOBIN: A distant second, but still, it is a very pro-death penalty state. The jurors impose the death penalty there. So that would argue perhaps in favor of Virginia going first.

One thing to keep in mind as we weigh that question, though, is even if Maryland went first, Virginia goes so much faster than Maryland, even if they went second and there's a conviction, they could wind end up getting executed even before the process moves forward there.

HARRIS: Really? They could executed before the process even works itself out in the other state.

TOOBIN: Absolutely. The Virginia system works so much faster they would be -- assuming there was a conviction in Maryland, they would be on death row. But you could have the whole process go forward in Virginia before Maryland even got the appeals process done.

HARRIS: That's interesting.

We have to go forward now, we got to go to break. Jeff Toobin, thanks much, appreciate it, have a good weekend, get well.

TOOBIN: You too, man. You too.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com






Aired October 25, 2002 - 10:45   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
LEON HARRIS, CNN ANCHOR: The death penalty is just one of the issues that prosecutors are trying to sort out today. Specific charges have to come first. The sniper spree covers at least seven jurisdictions. Prosecutors in each one of them wants to try the case. Now they have to decide who's going to be first.
Our legal analysis Jeffrey Toobin is going to be the first with us this morning to talk about this, explain what's actually at stake.

How are you doing -- Jeff.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Good, Leon, how are you doing?

HARRIS: Oh, no too well today. As you can probably tell.

TOOBIN: Me either, actually. We both have a cold. I lied when I said I was doing well.

(CROSSTALK)

HARRIS: Listen, let's talk about what's happening here with this -- first of all, we haven't even seen charges filed yet in the sniper shootings. We just heard moments ago at the Montgomery, Alabama, they're preparing to start filing charges down there. How does all of that -- just give us an idea of how this would typically work -- I don't know if I can use the word "typically," because this thing is pretty rare -- but how does all this sort itself out?

TOOBIN: It's not unusual for several different prosecutors to be looking at the same defendants. Turf battles among prosecutors are actually very common. And they really are worked out through meetings and through negotiation. They are often very testy and controversial. Usually when you have a situation with several different states involved, you get the feds, even if they are not a participant, to kind of mediate.

Usually, there are two factors that are the key determinants of who goes first. The first is simply who has the best case, who has the best evidence. You always want to win a case first, so you always want to bring the strongest case first. So prosecutors know what a strong case is and they argue about that.

The second issue is what might be called sweat equity: Who put the most in to the investigation. That is also not always clear, but certainly in a case like this, that would favor Montgomery County, because that is really where most of the attacks have taken place and where most of the investigation has taken place.

HARRIS: Wouldn't Montgomery County take primacy pretty much on both of those counts, then?

TOOBIN: Probably it would, but as you mentioned earlier, the death penalty is the wrinkle in this, which does not favor Montgomery County since -- I know it's an unscientific poll, but I think it's pretty consistent with how both prosecutors and the public feel about this case. In Maryland, to the moment, has executed just, I believe it's three or four people since 1976. Very few. They are now in the middle of a moratorium imposed by the governor. That could end, but clearly, it is not a place where the death penalty is imposed very often. Plus, under Maryland law, 17-year-olds, people who commit crimes at the age of 17 -- as John Malvo did -- may be accused of doing -- cannot be executed at all. They could be executed in Virginia. Virginia is number two in the country of executions, behind only Texas.

HARRIS: A distant second too, we might add.

TOOBIN: A distant second, but still, it is a very pro-death penalty state. The jurors impose the death penalty there. So that would argue perhaps in favor of Virginia going first.

One thing to keep in mind as we weigh that question, though, is even if Maryland went first, Virginia goes so much faster than Maryland, even if they went second and there's a conviction, they could wind end up getting executed even before the process moves forward there.

HARRIS: Really? They could executed before the process even works itself out in the other state.

TOOBIN: Absolutely. The Virginia system works so much faster they would be -- assuming there was a conviction in Maryland, they would be on death row. But you could have the whole process go forward in Virginia before Maryland even got the appeals process done.

HARRIS: That's interesting.

We have to go forward now, we got to go to break. Jeff Toobin, thanks much, appreciate it, have a good weekend, get well.

TOOBIN: You too, man. You too.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com