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CNN Sunday Morning

Legal Roundtable

Aired November 10, 2002 - 08:13   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.


HEIDI COLLINS, CNN ANCHOR: Our regular Sunday guests join us live now for our "Legal Brief" segment. Trial attorney and talk show host Michael Smerconish is in Philadelphia, and criminal defense attorney Jayne Weintraub is in our Miami bureau. Good morning to you both. Thanks for being here, guys.
Got lots to talk about this morning. I want to go first to John Lee Malvo, the 17-year-old suspect in the Washington area sniper attacks. We are knowing now that his fingerprints were the only ones found on the rifle, according to authorities. But we are also hearing about this interrogation, apparently a seven-hour interrogation. He admitted to shooting FBI analyst Linda Franklin and is charged for capital murder for that.

Talk to me a little bit, if you would, Michael, about what you think on this. If ever you were saying that if ever a case for the death penalty, this would be the one, and you're glad it's in Virginia.

MICHAEL SMERCONISH, TRIAL ATTORNEY/TALK SHOW HOST: Heidi, you know, Attorney General John Ashcroft often comes under fire from liberals and so-called civil libertarians. My hat is off to him. I am so thankful that he stepped forward and took this case out of Maryland and made sure that Virginia would be the state that would carry the laboring oar, because Virginia does indeed have a death penalty. Virginia does indeed use that death penalty for individuals who are 16 or older in certain circumstances. And, yes, if ever there were a case for the death penalty, it's this case. And so I'm grateful to the administration for doing what they've done.

COLLINS: And, Jayne, tell me, you think there is a juvenile issue here in this very long interrogation?

JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY: Well, there is an issue. I mean, if we are going to go by the fact that he is 17 years old, he is a juvenile under the laws of the United States. Of course, the records we're relying on are probably Jamaican birth records, and I don't know if we need to test them or not. However, with juveniles we have to look at things more stringently. We have to look at the facts and circumstances of every piece of evidence a little closer.

For example, we're reporting today, or you're reporting today that there was a confession here. Well, the fact that there was or there wasn't a confession elicited from this 17-year-old may or may not be admissible in a court of law. And that becomes the issue of whether or not he's a juvenile, what extra precautions need to be taken because he's a juvenile to make sure that he understands his rights before he waives them to give a statement.

COLLINS: In fact, Jayne, the head of Malvo's defense team says he's going to suppress any of the statements made in that interrogation.

WEINTRAUB: I'm sure that he will move to suppress them. Whether or not they are suppressible will be up to a court after he evaluates and balances the evidence that comes before him, surrounding the circumstances of the taking of that confession. Seven hours is an awfully long time to interrogate someone.

COLLINS: What about change of venue in this case?

WEINTRAUB: I think change of venue has to be granted in this case. Every single person in that district has to have been terrorized and a victim. And they have to be able to go into court and say, not only will they set aside their feelings, but they'll be able to listen to the evidence fairly and only what they hear in a court of law.

SMERCONISH: Heidi, you would have to take this case to Mars if you were looking for somebody who hadn't heard of what's gone on here. And I respect the fact that Jayne is concerned about the rights of Mr. Malvo. I'm a bit more concerned about the rights of Linda Franklin, the FBI agent who was gunned down in the parking lot of the Home Depot. And I think that pendulum has got to stay in the middle. The pendulum can't swing too far toward the rights of the perpetrators and not too far toward the rights of the victims either. It's got to stay focused in the middle. And I'm sure that's what's going to carry itself out now in Virginia.

COLLINS: All right. Let's move on, folks. Let's talk a little bit about your favorite and mine, Winona Ryder. The prosecution said no jail time; they just wanted her to take responsibility for what she did. But she hasn't yet, and we're hearing from jurors that they say they convicted her because of two things, that she tried to walk out without paying for the items and that she vandalized those items. This verdict, of course, coming in on Wednesday. Michael, what do you think about this one?

SMERCONISH: Well, what was interesting, as Jayne and I have talked about this in the last couple of weeks, we've analyzed the fact that the defense maintained that the prosecution was singling her out because of her celebrity status. Now, there have been transcripts released from a hearing behind closed doors which reveal that there were two, maybe three prior bad acts. In other words, a report that at Barney's and a report that at Neiman Marcus. And you've got to give her credit, she has great taste. But that she had been involved in similar conduct.

Now, that never came before this jury, but it lends credence to the view that the prosecutors were fired up to get her because she's got a problem and this was not a one-time occurrence.

COLLINS: And, Jayne, this is just much ado about nothing? WEINTRAUB: It is much ado about nothing. And the way that I feel about it is that the prosecutor really should be commended for coming out and recommending that no jail time be given. However, the prosecutor won't be the person sentencing Winona Ryder. It will be the judge. And there has already been what's called a pre-sentence investigation report that has begun, and they will do a background check on Winona Ryder, hopefully like everyone else, compiling all the statistics and background and what, if any, problems she does have for the judge to sanction her appropriately.

Personally, I think the case should have been worked out before trial, and a $25,000 fine to a charitable organization for kids would have been a lot more appropriate and better state funds used. But so be it. The trial was to determine whether or not she was guilty, not whether or not she would go to jail.

SMERCONISH: Interestingly, earlier this week, the United States Supreme Court heard argument about a California case where a guy stole videotapes worth $153 and, guess what? He's doing 50 years in the slammer because of the three strikes you're out. Winona Ryder is awfully lucky that this is the first time she's been actually prosecuted for it.

COLLINS: All right. Yeah. I wouldn't want to be spending 50 years in there. That's for sure.

All right. We are going to talk more with both of our legal guests, Michael Smerconish and Jayne Weintraub, in just a few minutes. We're going to tell you about a new computer system that the Pentagon is structuring that might get to know you a little bit better than you'd ever imagined. After this.

(COMMERCIAL BREAK)

COLLINS: More of our "Legal Roundtable" this morning. We want to move on now to a "New York Times" story that's talking about the Pentagon, and the possibility that it's building a total information awareness computer system. It would let intelligence officials look into citizens' banking, credit, Internet mail, travel records, all without a search warrant. But they say it is all in the name of anti- terrorism. Privacy experts, as you might imagine, are concerned. We're back with Michael Smerconish and Jayne Weintraub.

Jayne, you think this is Big Brother watching?

WEINTRAUB: I do. I am very frightened of what this action could lead to. Not only do I think it's Big Brother, but I think that this is an action by the United States government that gives in to the terrorists of 9/11. And that's why I'm so against it. We have here a proposal that will not require any probable cause determination. There will be no judicial control on whatever the government wants to look at. It is a complete invasion of privacy. We do have a Fourth Amendment. We do have a Constitution. And it isn't just a technicality.

Heidi, what this means is that the terrorists win. They're chipping away at our rights, and the very thing that we fought against and we stand up for. I say don't let them eradicate our Constitution. Stand up to them and say, you won't get near us. We are the best country in the world and we'll monitor ourselves, but not illegally.

COLLINS: But, Michael, you say this is the age old argument. If you're not doing anything wrong, you should have nothing to hide.

SMERCONISH: What's Jayne so concerned about is the question that I feel like asking her. Listen, I'm not one of those people who is willing to clutch my copy of the Constitution while the rest of the country crumbles.

We're in a war. We've got to recognize that we're in a war. And I don't think this really is going to get through the Congress, because when the president proposed the Tips program, which would have solicited the support of service personnel to drop the dime on their neighbors, there was a hue and cry much like what Jayne has told us.

But here's what I'm hoping we really do get out of this. Law enforcement needs to do a better job of coming into this century with the sharing of its databases. Do you know that in the sniper case, those two individuals were on the radar of law enforcement 11 different times before they were apprehended? The left hand doesn't know what the right hand is doing, and law enforcement has got to do a better job of using data to fight criminals.

COLLINS: OK. Let's move on now. We've got another topic to discuss today. And it involves hockey. There's a dad in Canada who is suing the Canadian Hockey Association, saying his 16-year-old son shouldn't have been named MVP in his league. He's suing for 300,000 bucks in psychological and punitive damages. Would you both agree this is absurdity, or not?

SMERCONISH: Yes.

WEINTRAUB: Complete frivolity and absurdity.

SMERCONISH: It gives Canadian lawyers, not American lawyers, a bad name.

COLLINS: OK.

Jayne, what about you?

WEINTRAUB: You know, I think that the court should be for really aggrieved people, and I think here, we're aggrieved to even have to deal with it. This is clogging up the court system. It shows that frivolous lawsuits can get filed and can get into the system.

This father really ought to be ashamed of himself. What is the lesson here for the children? Is it a lesson that he's going to bully referees and umpires? Or is the lesson that you want to promote sportsmanship, team spirit, accepting the referee's call? I mean, in my son's game yesterday, an umpire -- I'm sorry, one of the coaches was thrown out for bad sportsmanship because he challenged a call. That's what we want to have in sports. We don't want our kids' parents saying, I want my kid to get MVP.

SMERCONISH: Even if the boy deserved to be the MVP and were denied that prize, there's a great lesson in that, because that happens to kids every day in this country, and guess what, it's going to happen to them in life as well, so get used to it. The good guy doesn't always win.

COLLINS: So how far do you think this thing is going to go?

SMERCONISH: Hopefully into the circular file.

COLLINS: Good place for it. All right. Very good. We do appreciate your expertise on all of these items. Michael Smerconish and Jayne Weintraub. Thanks again, guys.

SMERCONISH: See you.

WEINTRAUB: Thank you, Heidi. Have a nice week.

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 November 10, 2002 - 08:13   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
HEIDI COLLINS, CNN ANCHOR: Our regular Sunday guests join us live now for our "Legal Brief" segment. Trial attorney and talk show host Michael Smerconish is in Philadelphia, and criminal defense attorney Jayne Weintraub is in our Miami bureau. Good morning to you both. Thanks for being here, guys.
Got lots to talk about this morning. I want to go first to John Lee Malvo, the 17-year-old suspect in the Washington area sniper attacks. We are knowing now that his fingerprints were the only ones found on the rifle, according to authorities. But we are also hearing about this interrogation, apparently a seven-hour interrogation. He admitted to shooting FBI analyst Linda Franklin and is charged for capital murder for that.

Talk to me a little bit, if you would, Michael, about what you think on this. If ever you were saying that if ever a case for the death penalty, this would be the one, and you're glad it's in Virginia.

MICHAEL SMERCONISH, TRIAL ATTORNEY/TALK SHOW HOST: Heidi, you know, Attorney General John Ashcroft often comes under fire from liberals and so-called civil libertarians. My hat is off to him. I am so thankful that he stepped forward and took this case out of Maryland and made sure that Virginia would be the state that would carry the laboring oar, because Virginia does indeed have a death penalty. Virginia does indeed use that death penalty for individuals who are 16 or older in certain circumstances. And, yes, if ever there were a case for the death penalty, it's this case. And so I'm grateful to the administration for doing what they've done.

COLLINS: And, Jayne, tell me, you think there is a juvenile issue here in this very long interrogation?

JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY: Well, there is an issue. I mean, if we are going to go by the fact that he is 17 years old, he is a juvenile under the laws of the United States. Of course, the records we're relying on are probably Jamaican birth records, and I don't know if we need to test them or not. However, with juveniles we have to look at things more stringently. We have to look at the facts and circumstances of every piece of evidence a little closer.

For example, we're reporting today, or you're reporting today that there was a confession here. Well, the fact that there was or there wasn't a confession elicited from this 17-year-old may or may not be admissible in a court of law. And that becomes the issue of whether or not he's a juvenile, what extra precautions need to be taken because he's a juvenile to make sure that he understands his rights before he waives them to give a statement.

COLLINS: In fact, Jayne, the head of Malvo's defense team says he's going to suppress any of the statements made in that interrogation.

WEINTRAUB: I'm sure that he will move to suppress them. Whether or not they are suppressible will be up to a court after he evaluates and balances the evidence that comes before him, surrounding the circumstances of the taking of that confession. Seven hours is an awfully long time to interrogate someone.

COLLINS: What about change of venue in this case?

WEINTRAUB: I think change of venue has to be granted in this case. Every single person in that district has to have been terrorized and a victim. And they have to be able to go into court and say, not only will they set aside their feelings, but they'll be able to listen to the evidence fairly and only what they hear in a court of law.

SMERCONISH: Heidi, you would have to take this case to Mars if you were looking for somebody who hadn't heard of what's gone on here. And I respect the fact that Jayne is concerned about the rights of Mr. Malvo. I'm a bit more concerned about the rights of Linda Franklin, the FBI agent who was gunned down in the parking lot of the Home Depot. And I think that pendulum has got to stay in the middle. The pendulum can't swing too far toward the rights of the perpetrators and not too far toward the rights of the victims either. It's got to stay focused in the middle. And I'm sure that's what's going to carry itself out now in Virginia.

COLLINS: All right. Let's move on, folks. Let's talk a little bit about your favorite and mine, Winona Ryder. The prosecution said no jail time; they just wanted her to take responsibility for what she did. But she hasn't yet, and we're hearing from jurors that they say they convicted her because of two things, that she tried to walk out without paying for the items and that she vandalized those items. This verdict, of course, coming in on Wednesday. Michael, what do you think about this one?

SMERCONISH: Well, what was interesting, as Jayne and I have talked about this in the last couple of weeks, we've analyzed the fact that the defense maintained that the prosecution was singling her out because of her celebrity status. Now, there have been transcripts released from a hearing behind closed doors which reveal that there were two, maybe three prior bad acts. In other words, a report that at Barney's and a report that at Neiman Marcus. And you've got to give her credit, she has great taste. But that she had been involved in similar conduct.

Now, that never came before this jury, but it lends credence to the view that the prosecutors were fired up to get her because she's got a problem and this was not a one-time occurrence.

COLLINS: And, Jayne, this is just much ado about nothing? WEINTRAUB: It is much ado about nothing. And the way that I feel about it is that the prosecutor really should be commended for coming out and recommending that no jail time be given. However, the prosecutor won't be the person sentencing Winona Ryder. It will be the judge. And there has already been what's called a pre-sentence investigation report that has begun, and they will do a background check on Winona Ryder, hopefully like everyone else, compiling all the statistics and background and what, if any, problems she does have for the judge to sanction her appropriately.

Personally, I think the case should have been worked out before trial, and a $25,000 fine to a charitable organization for kids would have been a lot more appropriate and better state funds used. But so be it. The trial was to determine whether or not she was guilty, not whether or not she would go to jail.

SMERCONISH: Interestingly, earlier this week, the United States Supreme Court heard argument about a California case where a guy stole videotapes worth $153 and, guess what? He's doing 50 years in the slammer because of the three strikes you're out. Winona Ryder is awfully lucky that this is the first time she's been actually prosecuted for it.

COLLINS: All right. Yeah. I wouldn't want to be spending 50 years in there. That's for sure.

All right. We are going to talk more with both of our legal guests, Michael Smerconish and Jayne Weintraub, in just a few minutes. We're going to tell you about a new computer system that the Pentagon is structuring that might get to know you a little bit better than you'd ever imagined. After this.

(COMMERCIAL BREAK)

COLLINS: More of our "Legal Roundtable" this morning. We want to move on now to a "New York Times" story that's talking about the Pentagon, and the possibility that it's building a total information awareness computer system. It would let intelligence officials look into citizens' banking, credit, Internet mail, travel records, all without a search warrant. But they say it is all in the name of anti- terrorism. Privacy experts, as you might imagine, are concerned. We're back with Michael Smerconish and Jayne Weintraub.

Jayne, you think this is Big Brother watching?

WEINTRAUB: I do. I am very frightened of what this action could lead to. Not only do I think it's Big Brother, but I think that this is an action by the United States government that gives in to the terrorists of 9/11. And that's why I'm so against it. We have here a proposal that will not require any probable cause determination. There will be no judicial control on whatever the government wants to look at. It is a complete invasion of privacy. We do have a Fourth Amendment. We do have a Constitution. And it isn't just a technicality.

Heidi, what this means is that the terrorists win. They're chipping away at our rights, and the very thing that we fought against and we stand up for. I say don't let them eradicate our Constitution. Stand up to them and say, you won't get near us. We are the best country in the world and we'll monitor ourselves, but not illegally.

COLLINS: But, Michael, you say this is the age old argument. If you're not doing anything wrong, you should have nothing to hide.

SMERCONISH: What's Jayne so concerned about is the question that I feel like asking her. Listen, I'm not one of those people who is willing to clutch my copy of the Constitution while the rest of the country crumbles.

We're in a war. We've got to recognize that we're in a war. And I don't think this really is going to get through the Congress, because when the president proposed the Tips program, which would have solicited the support of service personnel to drop the dime on their neighbors, there was a hue and cry much like what Jayne has told us.

But here's what I'm hoping we really do get out of this. Law enforcement needs to do a better job of coming into this century with the sharing of its databases. Do you know that in the sniper case, those two individuals were on the radar of law enforcement 11 different times before they were apprehended? The left hand doesn't know what the right hand is doing, and law enforcement has got to do a better job of using data to fight criminals.

COLLINS: OK. Let's move on now. We've got another topic to discuss today. And it involves hockey. There's a dad in Canada who is suing the Canadian Hockey Association, saying his 16-year-old son shouldn't have been named MVP in his league. He's suing for 300,000 bucks in psychological and punitive damages. Would you both agree this is absurdity, or not?

SMERCONISH: Yes.

WEINTRAUB: Complete frivolity and absurdity.

SMERCONISH: It gives Canadian lawyers, not American lawyers, a bad name.

COLLINS: OK.

Jayne, what about you?

WEINTRAUB: You know, I think that the court should be for really aggrieved people, and I think here, we're aggrieved to even have to deal with it. This is clogging up the court system. It shows that frivolous lawsuits can get filed and can get into the system.

This father really ought to be ashamed of himself. What is the lesson here for the children? Is it a lesson that he's going to bully referees and umpires? Or is the lesson that you want to promote sportsmanship, team spirit, accepting the referee's call? I mean, in my son's game yesterday, an umpire -- I'm sorry, one of the coaches was thrown out for bad sportsmanship because he challenged a call. That's what we want to have in sports. We don't want our kids' parents saying, I want my kid to get MVP.

SMERCONISH: Even if the boy deserved to be the MVP and were denied that prize, there's a great lesson in that, because that happens to kids every day in this country, and guess what, it's going to happen to them in life as well, so get used to it. The good guy doesn't always win.

COLLINS: So how far do you think this thing is going to go?

SMERCONISH: Hopefully into the circular file.

COLLINS: Good place for it. All right. Very good. We do appreciate your expertise on all of these items. Michael Smerconish and Jayne Weintraub. Thanks again, guys.

SMERCONISH: See you.

WEINTRAUB: Thank you, Heidi. Have a nice week.

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