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Attorneys at Law

Aired June 8, 2003 - 10:00   ET


JEFFREY TOOBIN, CNN LEGAL ANALYST: Thanks, I'm CNN legal analyst, Jeffrey Toobin with Court TV's Lisa Bloom and CNN contributor, Michael Smerconish. Welcome to "Attorneys at Law."
LISA BLOOM, COURT TV: We will review the top legal cases from Scott Peterson's defense to McDonald's lawsuit against a food critic.

MICHAEL SMERCONISH, CNN CONTRIBUTOR: Let's begin with the big case, Martha Stewart's day in court. Martha Stewart has pleaded not guilty to charges she conspired to hide an illegal stock sale made in December of 2001. A federal grand jury charged Stewart with making false statements, obstruction of justice, securities fraud, and conspiracy.

In addition, the Securities and Exchange Commission filed a civil suit accusing her of insider trading. Prosecutors chose not to bring criminal insider trading charges.

Ms. Stewart has stepped down as chairman and CEO of her company but will remain on the board and serve as the chief creative officer.

TOOBIN: Joining us now from San Francisco is assistant district attorney, Kimberly Guilfoyle Newsom. Kimberly, welcome.


TOOBIN: This is isn't an insider trading investigation. It's really an insider trading case, but there is no criminal insider trading charge. What do you think that means for how this trial is going to look when there is sort of the core of it just isn't there?

NEWSOM: It's interesting. It seems as if the case doesn't have legs, really. I mean, think about it. A year and a half of an investigation, and I think key in this case is nobody basically turned evidence against her except Bacanovic's assistant. Waksal didn't turn evidence and make any statements against her.

So, I don't think they were able to prove that, and it's interesting that on the civil side, they're trying to seek a case on that, and I don't know that that's going to work either. I think in the criminal case, the toughest charge for her to beat is going to be the obstruction of justice charge.

BLOOM: But Kimberly, isn't this a case about lying? You say no one's turned against her except one person. There's only a few people with knowledge of the facts here. And the fact is if she engaged in a cover up, if she tried to cheat and lie her way out of an insider trading scandal, that's a serious federal crime.

NEWSOM: No, absolutely, it is. And interestingly enough, again, we said that only the assistant is the one that has the main evidence against her. But keep in mind, he's lied before. So he said, well, I'm telling the truth now, after he received gifts from his boss, right? And then now he's cooperating with the federal agency. So, I don't know how much credibility he's going to have in court.

But again, these are tough charges. I think she could go down on the obstruction of justice. If she was able to enter play bargain to maybe a fine or something, then I think that would be the best course of action for her to kind of save face and move aside.

SMERCONISH: Lisa, I think you've put your finger on it. There's a Nixonian quality to this prosecution in that it's not the underlying conduct that they're trying to pinch her for, so to speak, but instead, it's the way in which she reacted to it.

And I found myself a little bit sympathetic this week toward Martha Stewart. I mean, Martha Stewart was the victim of an indiscretion by a broker. Now I'm putting Martha Stewart and the word victim in the same sentence.

BLOOM: Don't get carried away, Michael.

TOOBIN: Her Achille's heel -- buried in the indictment is a fascinating new fact. I've been covering this case for a year, and there's something new, never been disclosed before. She is accused in the indictment of conspiring, effectively, with her secretary, basically telling her secretary to edit a phone message or editing it with her, and then restoring it to its original form basically to cover up what she was doing.

When you talk to people about Martha Stewart, you always hear that she doesn't get along with the people beneath her in the hierarchy, they don't like her, she's mean to them. Wouldn't it be amazing if Martha Stewart is brought down by her own secretary?

BLOOM: Well, that's a great point, Jeffrey. And it's also a great forensic issue in this case, the smoking gun of the ink on the ballpoint pen.

TOOBIN: The different blue ink.

BLOOM: That's right, where apparently a change was made on a document in blue pen. Now, there were other notations in blue pen on that document, you but when law enforcement tested it, it turned out it was different ink. And the point there being that Martha Stewart may have conspired to change a document to make it look like she had a change order in when, in fact, she didn't. I agree with you, Michael. I think it's about the crime -- the crime is the cover-up in this case.

SMERCONISH: Kimberly, do you think Martha Stewart could end up being a sympathetic individual when all is said and done?

NEWSOM: You know what? I think we're already starting to see that. I mean, many women especially, I think, are saying that this is unfair, that it's sort of, you know, sexist, and this is politically motivated, and so it's interesting how we're going to see how this will develop, and it will be interesting to see if Martha ends up going to club fed. One thing we know, that the food and table linens will improve there, if she does.


BLOOM: I've got to say something to you female lawyer to female lawyer, how can you say this can be gender motivated in any way when 98 percent of crimes are committed by men, 98 percent of criminal indictments are against men. This happens to be a woman, but how could you say it's there's a gender bias in this indictment?

TOOBIN: Lisa, now her lawyers put their finger on something here. You've got Ken Lay unindicted, you've got Jeffrey Skilling unindicted from Enron, you've got Bernie Evers unindicted from WorldCom, and here you have Martha Stewart who at best, you know, made $47,000 on this transaction.

And you know, it's true, every crime is different, different U.S. attorneys offices, but I think, you know, in this big wave of insider trading and all these scandals that she is the one indicted, it does make people think.

BLOOM: Just because some people get away with a crime doesn't mean that everyone should get away with a crime, and if there's evidence to indict her it, she should be...

SMERCONISH: It's celebrity motivated. I don't think that's not gender specific. And let me say this to you, don't be taken in by the baking of the cookies and the organizing of your closet. You will pardon me, but she's a tough broad. And she's showing me a by the way that she would not take a plea. She stood up. The letter that she had publishing in newspapers this week and said, hey, I haven't done anything wrong here, this is going to be a good fight.

TOOBIN: Kimberly, do you think celebrities are treated differently? It's interesting, Jim Comey, the U.S. attorney, when he made -- announced the indictment, he said, she was not prosecuted because of who she is but because of what she did. But what's wrong with prosecuting people to keep people as an example, as a deterrent? Why not pick high-profile targets like Martha Stewart?

NEWSOM: Well, prosecutors do tend to do that, and again, there's been a tremendous amount of resources devoted to this case. Again, the focus of this investigation was insider trading, and no charges of insider trading were brought criminally. So, it is very interesting.

And I think this will have a deterrent effect. Again, people are disappointed because they haven't gone after, quote unquote, some of the big dogs that have bilked the public out of billions of dollars when you see Enron and WorldCom and others that have done that. So, again, it's going to be an interesting case. But Martha Stewart -- and the prosecutors are showing this case is not above the law, she should not be treated any differently than anyone else who is accused of these same crimes.

BLOOM: Kimberly, you don't think that Martha Stewart is really looking at any serious jail time. She's not going to be redecorating the inside of a jail cell, do you?

NEWSOM: Well, if she takes this to trial, and I think, again, she can go down on the obstruction of justice charge. I think the securities fraud charge is actually somewhat weak, and it will be sort of a criminal test case, she could absolutely.

TOOBIN: I think she's definitely looking at jail time. You know, you've had the deputy attorney general, Larry Thompson, saying, we don't want house arrest for white-collar criminals anymore. If she's convicted under the federal sentencing guidelines as I read them, she is virtually certain to get about a year in jail. I mean, she's not going to get 30 years, but I think she will certainly go to jail if she is convicted.

BLOOM: You are absolutely right, Jeffrey.

SMERCONISH: Kimberly, I think what hurts her is the fact -- and I didn't know this until the whole story really blew up -- that she herself was a stockbroker and, of course, was a board member of the exchange. So, she's probably going to be held to a different standard, not that of the common person, but rather that of a pretty sophisticated individual.

BLOOM: How much sophistication does it take to know not to deal on insider information?


BLOOM: ... not to lie, not to doctor a document.

SMERCONISH: Lisa, I don't know. That phone rings, and she's told so and so is getting out, there's a material element that I think the prosecutors were lacking here. I don't think she was told specifically why Waksals were selling out of that stock.

BLOOM: But she had a close relationship with Sam Waksal. He dated her daughter. And you have the impression of wealthy people hobnobbing at cocktail parties, getting information that ordinary investors in the stock market don't get.

SMERCONISH: That's what this case is all about. It's the resentment, though. It's the resentment toward her because she's successful and because she's wealthy, and I don't like that aspect of it. If she were a plumber, she'd never be facing this fate.

TOOBIN: That's true. There's not a lot of insider trading going on among plumbers, I guess.

BLOOM: And on the note of visualizing Martha Stewart as a plumber, we're going to take a quick break. This programming note. Don't miss CNN's special report, "The Case Against Martha Stewart." It will air tonight, 6:30 p.m. Eastern, 3:30 Pacific.

Coming up next, a judge keeps Laci Peterson's autopsy results sealed. What will this mean for both sides of the case? Stay with us.


BLOOM: Welcome back. On Friday, a California Superior Court judge decided to keep the autopsy reports on the bodies of Laci Peterson and her unborn son sealed despite earlier leaks to the media. In addition, the judge delayed hearing a defense motion about alleged improprieties regarding wiretaps in the case.

And the coroner's office released the death certificates for Laci and her unborn son on Friday. It lists her cause of death as, quote, "undetermined" but does rule it a homicide. No cause of death is listed for her unborn child.

Let me go out to you, Kimberly Guilfoyle Newsom. I think the defense's credibility in this case is sinking faster than Martha Stewart's stock. We heard Mark Geragos yesterday in court yesterday piously denying that he had anything to do with leaks of portions of the autopsy that clearly supported his side.

Now, I know you were involved in a high-profile case out in that same part of the world, San Francisco area, the dog mauling case. What do you do when the defense is acting it in this way?

NEWSOM: Well, you sort of chuckle to yourself and try to keep on your game face. But let me tell you, I thought Geragos put on a good performance. He should deserve some kind of legal academy award because I couldn't believe he could say that with a straight face. It's obvious that it comes from his camp. Of course, we can't prove that.

BLOOM: Well, you notice he said in the first person, I didn't leak, and then he referred to his co-counsel, Kirk McAllister. He didn't deny that everyone in his office...

NEWSOM: Like Matt Zaltan (ph), exactly, I was looking for him. He had him hidden in another row.

TOOBIN: But Kimberly, isn't the point that the conversation about this case has really changed a lot in recent weeks? You have the fact, cause of death undetermined. So we don't know how they died. We have the autopsy results with very suggestive, perhaps the satanic theory is out there now. I mean, hasn't Geragos succeeded? You might not like the guy, but hasn't he succeeded in planting doubts in a lot of people's minds about this case?

NEWSOM: I think he definitely has achieved his goal, which was a shift in public opinion, because people are starting to second guess and say, well, you know what, I really need to hear the rest of the facts and evidence in this case, when before, I think if you polled -- I mean, everybody was thinking, hey, this guy is guilty, no doubt about it. And now what he's doing is he's creating the presumption of innocence, restoring it in fact, and reasonable doubt.

TOOBIN: What's wrong with that?

NEWSOM: There's nothing wrong with that. That's his job. I think when the actual preliminary hearing happens on the 16th and eventually the trial, we're going to see quite a different picture, and we're going to see that the facts and evidence are consistent with the prosecution theory and the defense has overpromised and will likely underdeliver. So that's a big mistake.

SMERCONISH: ... this case that I think that's been overlooked -- and you were at that hearing, Jeffrey, so maybe you'll know -- but the media is going to great lengths in those wiretaps to make sure that their conversations, they get to hear them first.

I've got this image in my head of some anchor person known to America picking up the phone and calling Scott Peterson and saying, hey, I know you're innocent, I'm going to take good care of you, give me an interview.

TOOBIN: You know, I think you are so right. And in fact, one of the funny things that happened in the hearing was that the prosecutor disclosed that some of the things that were on the wiretaps were the messages left on Scott's machine from media people. And can you imagine, you know, the media -- the messages left from the famous anchor people? I mean, it could actually be -- in a not funny case, this could be some hilarious stuff on those tapes.

SMERCONISH: Three thousand, eight hundred and some -- he's like my 15-year-old. It's unbelievable.

BLOOM: Let me go back now to Kimberly. Kimberly, what about the issue of the gag order? The judge didn't decide it yesterday, but this is the first high-profile case that I've seen where the judge wants a gag order, and everyone else is essentially allied against it. The prosecution only wants a very limited gag order. The defense is against it. The key witnesses is against it, and, of course, the media is against it.

NEWSOM: Yes, it is actually really interesting. But I think the judge is showing a level head and a steady hand. And I hope that maintains throughout the proceedings. But again, he's going to -- he declined to issue the gag order absent a written ruling. So I think we may see that change.

And I think yesterday, with keeping the autopsy reports sealed, that was a smart move. We're going to get that information in approximately 30 days or so at the preliminary hearing. A lot more will come out then, and then let's see what he does about the gag order.

SMERCONISH: The accused serial bomber, Eric Robert Rudolph, is facing 23 federal criminal charges in connection with two deadly attacks in Georgia and Alabama during the 1990s. Twenty-one of the charges stem from three Atlanta area bombings, including the 1996 Olympic Park blast. Two other counts are related to the 1998 bombings of a women's clinic in Birmingham where Rudolph will face charges first.

Rudolph, who eluded the FBI for five years, was captured last weekend in Murphy, North Carolina. Some residents there have expressed sympathy for his apparent anti-abortion and anti-gay sentiments.

Kimberly, there was a sign in a restaurant in that locale that said, "Pray for Eric Rudolph." I guess it's a good thing that he's not being tried there. There would be a tremendous amount of sympathy for him.

NEWSOM: That's correct. It's interesting to see how much support that he actually has. Quite vocal, outspoken people. And again, it begs the question, I guess it's reasonable that they're looking to see who else aided or assisted him while he was a fugitive of justice for five years, able to survive.

And notice when he was taken into custody, clean shaven, nice haircut, nicely trimmed mustache. So there's a lot more to this case, and I'm anxious to see.

BLOOM: But Jeffrey, let's call him what he is. This is a man, if prosecutors are to be believed, who killed and maimed innocent people in support of his political agenda. I call that a terrorist, and if anybody helped him in that part of the country -- these are Americans helping an American terrorist.

TOOBIN: True enough. But your key point is if he's guilty. Interesting disclosure late in the week. You know, some of the evidence against him in the Atlanta case is people supposedly recognizing his voice on the telephone calling in after the Atlanta bombing.

You know, if DNA evidence is up here, voice evidence is down there. They'd better have better evidence than that.

But we do have to take another quick break. Kimberly Guilfoyle Newsom, thanks for joining us.

Up next, the cases that make us say, "Objection." Stay with us.


SMERCONISH: Welcome back. Avowed liberal, Barbra Streisand, at odds with environmentalists? She is when it comes to her home. Streisand has filed a $10 million lawsuit against an amateur photographer for displaying a picture of her Malibu estate on an environmental web site.

The photographer claims the site was designed to document erosion and overdevelopment along California's coastline. But the singer and actress says the photograph intrudes on her privacy. It pains me to say it. I'm sympathetic to Babs on this one. I took a peek at the web site. But I don't think she has a legal leg to stand on because she wasn't in the picture.

BLOOM: Well, I disagree with that. I think Catherine Zeta- Jones' recent victory against a British tabloid demonstrates that celebrities do have privacy rights, and in this case, this is her home. That's the classic zone of privacy the law wants to protect. She's probably worried about stalkers.

TOOBIN: I can't believe you two. This is a free press issue. They're allowed to take pictures from a helicopter. This isn't stalking. This isn't taking a picture of someone sun bathing topless...

BLOOM: Well, California privacy law very strongly protects rights even of celebrities, and I have to tell you, a lot of celebrities are concerned...

TOOBIN: No, especially of celebrities.

BLOOM: ... about people sneaking in, as they did at Brad Pitt's house, going into their home, violating their privacy. It's a real concern.

TOOBIN: I want to devote the rest of my life to protecting the rights of celebrities because I feel so sorry for those people.

BLOOM: A federal judge in San Francisco sentenced Ed Rosenthal to just one day in jail for growing more than 100 marijuana plants. The reason? Jurors said they would have acquitted him if they knew that the pot plants were intended for medicinal purposes. Rosenthal's sentence was waived for time already served.

Michael, I've got to tell you on this one, I think it is a travesty that this man was prosecuted. He was growing marijuana to help chronically ill people under the auspices of a government program, and this prosecution was truly sick.

SMERCONISH: Brace yourself because I'm with the guru of began ganja on this one as well. I think it was outrageous that the federal judge in this case held back from the jury the essence of the defense, and I think he felt guilty about it and tried to make it up to him on the sentencing.

TOOBIN: And the judge, Justice Breyer's little brother, Chuck Breyer, he said that it was California law permitted this. California law completely permitted this. It was only federal law that it was a violation of. This was a preposterous prosecution.

BLOOM: And why are feds worried about some potheads in the Bay area getting wasted when they're wasting judicial resources on this prosecution? We've got terrorists to catch, murders and rapists, and we are worried about a guy growing some herb in his backyard?

TOOBIN: New legal fallout from the Catholic Church sex abuse scandal. The head of Phoenix Arizona's diocese, Bishop Thomas J. O'Brien, admitted that he covered up allegations of sexual abuse by priests for decades. O'Brien has also agreed to surrender some of his authority to avoid a criminal indictment. O'Brien's admission followed threats by prosecutors to call him before a grand jury.

This is a very difficult situation. But I'm sympathetic to the compromise that was worked out here. You get all the facts out, and you don't prosecute this guy. But boy, there were 50 priests that were involved over these years.

SMERCONISH: It reminds me of the treatment of Sammy "The Bull" Gravano. I mean, this guy did some bad things in terms of the cover up I think he got off easy. He's in a watered down role, but he gets to keep his position. He shouldn't hold that job.

BLOOM: Well, I represented some kids who sued the Catholic Church in child sexual abuse case about a decade ago, and I can tell you it is very hard to prosecute these cases. There's probably a big statute of limitations issue. And this bishop is not accused of sexual abuse himself. It's another case of it's not the crime, it's the cover up. He's accused of covering up and helping keep the secret.

SMERCONISH: Now we ask the question, would you take this case? McDonald's is suing a food critic for $25 million saying a negative review hurt business. The critic wrote, quote, "The ambiance was mechanical, the potatoes were obscene and tasting of cardboard, and the bread poor. I found it alienating and vulgar." Unquote.

I would probably be inclined to represent McDonald's because they were my first employer many moons ago, but McDonald's made a mistake taking this guy on. What would have been a one-day review that very few have heard about is a story with legs.

TOOBIN: I think there's an idea there. McDonald's is having a lot of problems. If they could figure out a way to sell obscene potatoes, I think their business might go up, not down, don't you think?

BLOOM: Well, that's a good thought. I think their lawyers are a couple fries short a happy meal in filing this lawsuit.

Here's an update on a case we told you about last week. A Muslim woman asked a Florida judge to let her keep her veil on for her driver's license photo. Well, on Friday, the judge rejected her request saying that a full faced photo I.D. is necessary for public safety. The case will be appealed. Stay tuned.

TOOBIN: And that's all the time we have this week. On behalf of Lisa Bloom and Michael Smerconish, I'm Jeffrey Toobin. Thanks for watching. CNN LIVE SUNDAY continues after this break.


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