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CNN Sunday Morning

Legal Roundtable

Aired November 17, 2002 - 08:49   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.


ARTHEL NEVILLE, CNN ANCHOR: And it is time now for our "Legal Briefs," from kids and violence to the latest in the sniper case, we have a full docket today. Joining us this morning, trial attorney and talk show host Michael Smerconish in Philadelphia. Hello, Michael.
MICHAEL SMERCONISH, TRIAL ATTORNEY/TALK SHOW HOST: Hey, Arthel.

NEVILLE: Hey. And criminal defense attorney Jayne Weintraub in Miami. Hello, Jayne.

JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY: Good morning, Arthel.

NEVILLE: Good morning. I'm going to start with you, because I want to talk to you about the case in Florida. Alex and Derek King plead guilty to third degree murder in the death of their father. You are representing the mother, Kelly Marino. Wanted to ask you first up, what sort of contact has she had with her sons?

WEINTRAUB: Well, actually I'm not representing Kelly Marino. I had originally come in to represent Alex King with Ben Cunie (ph) along with James Stokes. But the mother has had contact with them after the plea. She was allowed to see the boys. She was not allowed to have any discussion with the children prior to them entering this plea agreement. And that's really the big issue here, Arthel, which I think everybody's missing.

The big issue for her and for any mom or parent is, what rights, if any, do parents have today in the criminal justice system when the children are treated as adults? Because more and more, kids are being treated as adults. And if the moms and the dads aren't allowed to have any say or be heard by a judge, who's ruling their lives?

NEVILLE: Yeah, but you know what, Jayne, where are the moms and dads when these kids are out doing these heinous crimes?

WEINTRAUB: Arthel, Arthel, you know, the important thing here is that Kelly Marino is there now. And she's their mom. And you can't take that away from her. And she loves them. She got her stuff straightened out and she came back to get her kids. We should be happy that a mom does that rather than condemn it. Do you know what it's like, Arthel? It's like in a rape case taking apart the rape victim.

NEVILLE: No, I don't think it's the same thing, Jayne. WEINTRAUB: Don't shift the burden here. The burden is still on the state and the government to prove its case. And here, little Alex was an eyewitness to a crime. There's absolutely no evidence to say that he knew anything, except that he suggested at the age of 12 to his brother that he kill his dad. Come on.

NEVILLE: So does the mother have a legal leg to stand on at this point? What can she do?

WEINTRAUB: The mom -- the mom does have a legal -- legal leg to stand on. And there are issues of appeal that we're going through now to see whether or not they will be filed. And it's very complicated. But the bigger issues are, what's really in the best interest of the kids? What do the kids want to do? Was the sentence legal?

NEVILLE: What do you think about that? What are the answers?

WEINTRAUB: Well, you know, in this particular case, Arthel, the judge never, ever considered juvenile justice sanctions. It was never considered that these children be sentenced and placed in any department of juvenile justice facility.

NEVILLE: OK, Jayne, let me jump in there. Excuse me, because I have got about 15 seconds, and Michael, I want to give you a quick minute to go ahead and respond to what Jayne's been saying here this morning.

SMERCONISH: I think Jayne is too effective down there in Florida, because the net effect, as I understand it, is that these two boys are now going to do six or seven years for the baseball bat death of their father. It's too lax of a sentence when all is said and done.

And the blame here lies with the prosecution, because I think they really did something that's ethically questionable. They advanced two different theories in two trials simultaneously. And I don't know that a defense lawyer necessarily needs to believe in their case, but, boy, a prosecutor sure should believe in what they're telling a jury. And in one of those two trials, they were telling the jury something that could not have been true. So it's an ugly case and a bad result.

NEVILLE: Michael, I have to jump in. We do have to take a break right now. I want you to stick around, though, because we're going to have more of our "Legal Roundtable" just ahead. We'll talk about the sniper case, the Nathaniel Brazill trial and a whole lot more, so keep it right here on CNN. We're back in a moment.

(COMMERCIAL BREAK)

NEVILLE: And we're back now with more "Legal Briefs." We're talking with attorney and talk show host Michael Smerconish in Philadelphia and criminal defense attorney Jayne Weintraub in Miami. And let's move on now to the sniper case. The judge says no to a gag order, and wondering if you think this means that they will not be able to seat an impartial jury. We're talking about the cases of John Lee Malvo and John Muhammad.

SMERCONISH: Well, I think that it will be hard to seat a jury in this country, or in this galaxy of people who have not heard something about this particular case. There was a great deal said in the last week about whether he was interrogated without a lawyer, whether this was going to be fair.

In the end, I don't know that any of it matters, because it sure seems from the sidelines like one heck of a case that's been assembled against these two individuals. But of course, as Jayne will point out in a moment, they've not been convicted of anything yet.

NEVILLE: Well, they haven't been convicted.

SMERCONISH: No, not yet.

WEINTRAUB: But that's exactly what the problem is. And the more the FBI leaks information, and clearly it was the FBI who leaked it, the more suspect it is to me. Do they have to interrogate a juvenile for 17 hours to get him to say something? How much can they squeeze somebody and threaten him until he says what they want?

Isn't that what should be debated in court? That's what's happening here. The FBI leaked information. There should be a gag order. The U.S. attorney should be responsible to keep the mouth of its agents quiet. Litigate in court.

NEVILLE: OK, Jayne, OK, I'll give you that, but really, this story, of course, is all over the news. It touched a lot of people. People lost loved ones, and it put the fear of God in a lot of people, which is what they were hoping for, as according to their notes on the tarot card. So is it a moot point at this point regardless of a gag order or not?

WEINTRAUB: Arthel, what's moot is what the evidence will be and what is not moot is that they should not be allowed to disclose evidence and information that will be used in this case. I'm not saying that nobody should be able to speak about the sniper case. What I am -- or that the media shouldn't report it. What I'm saying is that the prosecutor and its agents have an ethical responsibility not to litigate their case in the media and to the public sympathy. They need to litigate their case in a courtroom.

SMERCONISH: Arthel, the most significant thing about the sniper case this past week was actually something else.

NEVILLE: Yes, let's talk about that.

SMERCONISH: It was the death of the Pakistani fellow who shot and killed those people outside of the CIA. And what it said to me was, John Ashcroft, you made a good decision in sending the sniper case to Virginia because in Virginia they really do use the death penalty.

NEVILLE: Let me ask you this, Michael. There was a move to request to move Malvo from a juvenile detention center to an adult detention center. That was denied. Do you think he, Malvo, should be in jail with adults or juveniles?

SMERCONISH: I think that he probably deserves to be in some type of an isolated situation at this stage until he goes through the trial process. I mean, you've got to protect him. I don't know where in the totem pole of prison life he would come in, but probably somewhere down at the bottom with pedophiles. So you've got to protect this guy through the trial process. I don't know that it matters whether it's in a juvenile population or an adult population.

NEVILLE: Michael and Jayne, guess what, unfortunately, we are out of time. I had other things I wanted to talk to you about this morning, but time flies I guess when you're having fun. We are out of time. Jayne Weintraub, Michael Smerconish, thank you very much for joining us.

SMERCONISH: Thank you.

WEINTRAUB: Thank you.

NEVILLE: And I'm sure I'll see you again here on CNN.

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 17, 2002 - 08:49   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ARTHEL NEVILLE, CNN ANCHOR: And it is time now for our "Legal Briefs," from kids and violence to the latest in the sniper case, we have a full docket today. Joining us this morning, trial attorney and talk show host Michael Smerconish in Philadelphia. Hello, Michael.
MICHAEL SMERCONISH, TRIAL ATTORNEY/TALK SHOW HOST: Hey, Arthel.

NEVILLE: Hey. And criminal defense attorney Jayne Weintraub in Miami. Hello, Jayne.

JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY: Good morning, Arthel.

NEVILLE: Good morning. I'm going to start with you, because I want to talk to you about the case in Florida. Alex and Derek King plead guilty to third degree murder in the death of their father. You are representing the mother, Kelly Marino. Wanted to ask you first up, what sort of contact has she had with her sons?

WEINTRAUB: Well, actually I'm not representing Kelly Marino. I had originally come in to represent Alex King with Ben Cunie (ph) along with James Stokes. But the mother has had contact with them after the plea. She was allowed to see the boys. She was not allowed to have any discussion with the children prior to them entering this plea agreement. And that's really the big issue here, Arthel, which I think everybody's missing.

The big issue for her and for any mom or parent is, what rights, if any, do parents have today in the criminal justice system when the children are treated as adults? Because more and more, kids are being treated as adults. And if the moms and the dads aren't allowed to have any say or be heard by a judge, who's ruling their lives?

NEVILLE: Yeah, but you know what, Jayne, where are the moms and dads when these kids are out doing these heinous crimes?

WEINTRAUB: Arthel, Arthel, you know, the important thing here is that Kelly Marino is there now. And she's their mom. And you can't take that away from her. And she loves them. She got her stuff straightened out and she came back to get her kids. We should be happy that a mom does that rather than condemn it. Do you know what it's like, Arthel? It's like in a rape case taking apart the rape victim.

NEVILLE: No, I don't think it's the same thing, Jayne. WEINTRAUB: Don't shift the burden here. The burden is still on the state and the government to prove its case. And here, little Alex was an eyewitness to a crime. There's absolutely no evidence to say that he knew anything, except that he suggested at the age of 12 to his brother that he kill his dad. Come on.

NEVILLE: So does the mother have a legal leg to stand on at this point? What can she do?

WEINTRAUB: The mom -- the mom does have a legal -- legal leg to stand on. And there are issues of appeal that we're going through now to see whether or not they will be filed. And it's very complicated. But the bigger issues are, what's really in the best interest of the kids? What do the kids want to do? Was the sentence legal?

NEVILLE: What do you think about that? What are the answers?

WEINTRAUB: Well, you know, in this particular case, Arthel, the judge never, ever considered juvenile justice sanctions. It was never considered that these children be sentenced and placed in any department of juvenile justice facility.

NEVILLE: OK, Jayne, let me jump in there. Excuse me, because I have got about 15 seconds, and Michael, I want to give you a quick minute to go ahead and respond to what Jayne's been saying here this morning.

SMERCONISH: I think Jayne is too effective down there in Florida, because the net effect, as I understand it, is that these two boys are now going to do six or seven years for the baseball bat death of their father. It's too lax of a sentence when all is said and done.

And the blame here lies with the prosecution, because I think they really did something that's ethically questionable. They advanced two different theories in two trials simultaneously. And I don't know that a defense lawyer necessarily needs to believe in their case, but, boy, a prosecutor sure should believe in what they're telling a jury. And in one of those two trials, they were telling the jury something that could not have been true. So it's an ugly case and a bad result.

NEVILLE: Michael, I have to jump in. We do have to take a break right now. I want you to stick around, though, because we're going to have more of our "Legal Roundtable" just ahead. We'll talk about the sniper case, the Nathaniel Brazill trial and a whole lot more, so keep it right here on CNN. We're back in a moment.

(COMMERCIAL BREAK)

NEVILLE: And we're back now with more "Legal Briefs." We're talking with attorney and talk show host Michael Smerconish in Philadelphia and criminal defense attorney Jayne Weintraub in Miami. And let's move on now to the sniper case. The judge says no to a gag order, and wondering if you think this means that they will not be able to seat an impartial jury. We're talking about the cases of John Lee Malvo and John Muhammad.

SMERCONISH: Well, I think that it will be hard to seat a jury in this country, or in this galaxy of people who have not heard something about this particular case. There was a great deal said in the last week about whether he was interrogated without a lawyer, whether this was going to be fair.

In the end, I don't know that any of it matters, because it sure seems from the sidelines like one heck of a case that's been assembled against these two individuals. But of course, as Jayne will point out in a moment, they've not been convicted of anything yet.

NEVILLE: Well, they haven't been convicted.

SMERCONISH: No, not yet.

WEINTRAUB: But that's exactly what the problem is. And the more the FBI leaks information, and clearly it was the FBI who leaked it, the more suspect it is to me. Do they have to interrogate a juvenile for 17 hours to get him to say something? How much can they squeeze somebody and threaten him until he says what they want?

Isn't that what should be debated in court? That's what's happening here. The FBI leaked information. There should be a gag order. The U.S. attorney should be responsible to keep the mouth of its agents quiet. Litigate in court.

NEVILLE: OK, Jayne, OK, I'll give you that, but really, this story, of course, is all over the news. It touched a lot of people. People lost loved ones, and it put the fear of God in a lot of people, which is what they were hoping for, as according to their notes on the tarot card. So is it a moot point at this point regardless of a gag order or not?

WEINTRAUB: Arthel, what's moot is what the evidence will be and what is not moot is that they should not be allowed to disclose evidence and information that will be used in this case. I'm not saying that nobody should be able to speak about the sniper case. What I am -- or that the media shouldn't report it. What I'm saying is that the prosecutor and its agents have an ethical responsibility not to litigate their case in the media and to the public sympathy. They need to litigate their case in a courtroom.

SMERCONISH: Arthel, the most significant thing about the sniper case this past week was actually something else.

NEVILLE: Yes, let's talk about that.

SMERCONISH: It was the death of the Pakistani fellow who shot and killed those people outside of the CIA. And what it said to me was, John Ashcroft, you made a good decision in sending the sniper case to Virginia because in Virginia they really do use the death penalty.

NEVILLE: Let me ask you this, Michael. There was a move to request to move Malvo from a juvenile detention center to an adult detention center. That was denied. Do you think he, Malvo, should be in jail with adults or juveniles?

SMERCONISH: I think that he probably deserves to be in some type of an isolated situation at this stage until he goes through the trial process. I mean, you've got to protect him. I don't know where in the totem pole of prison life he would come in, but probably somewhere down at the bottom with pedophiles. So you've got to protect this guy through the trial process. I don't know that it matters whether it's in a juvenile population or an adult population.

NEVILLE: Michael and Jayne, guess what, unfortunately, we are out of time. I had other things I wanted to talk to you about this morning, but time flies I guess when you're having fun. We are out of time. Jayne Weintraub, Michael Smerconish, thank you very much for joining us.

SMERCONISH: Thank you.

WEINTRAUB: Thank you.

NEVILLE: And I'm sure I'll see you again here on CNN.

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