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CNN Live Sunday
Legal Briefs
Aired September 21, 2003 - 10:33 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.
SEAN CALLEBS, CNN ANCHOR: Time for court watch. And there are some compelling cases on the docket, not the least of which the California recall appeal. We now get "Legal Briefs" from our two experts, trial attorney and CNN contributor Michael Smerconish in Philadelphia. Michael, good to see you.
MICHAEL SMERCONISH, TRIAL ATTORNEY: Good morning.
CALLEBS: And criminal defense attorney Jayne Weintraub in Miami.
JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY: Good morning.
CALLEBS: Jayne, always a pleasure. Thanks for joining us.
Let's talk about that. The candidates out in California, they are going on, campaigning as if the 9th Circuit Court is going to reverse the ruling from the three-judge panel out there. Michael, let me get your thoughts on this. Is this going to be turned around?
SMERCONISH: I hope it is turned around. And I'm not a big fan of this recall notion. I mean, Gray Davis, say what you will about him, he was just reelected a year ago. The whole thing seems a bit ridiculous to me. But having said that, let's get it on, because delaying it until March is not the right outcome.
Those ballots were good enough to reelect Gray Davis, they should be good enough for the recall election.
CALLEBS: And Jayne, I guess we should point out that the whole focus is those punchcard ballots.
WEINTRAUB: Yes, well, being in Florida, I'm very familiar with those chads and the punchcards, and that's exactly what we want to avoid. And that's why I think there should be a delay. Why should we take a chance of having the election go forward and then the opposite side first having to come forward saying, it's a Bush v Gore issue, and the recount should happen because the chads and the punchcard ballots were not good? Every vote has to count. I say delay it, wait, redo the machines, have a valid election where everybody's vote counts.
CALLEBS: Well, Jayne, if you delay this, are you going to possibly run into something that you simply can't win? It's either going to be more of a fiasco, or something that is questioned from now until whenever? WEINTRAUB: Either way, it's a can of worms. But for me, I think that after having lived through this, really every day in Florida and being part of that process, I think that we need to make every vote count and that means a delay.
CALLEBS: Michael, what about your thoughts on this? As I understand it, these punchcards could affect about 44 percent of all the votes cast in California, certainly there seems to be a reason. Look, let's get this right if we're going to redo it?
SMERCONISH: But California has not had the problem that Florida has had with those punch ballot. And there was a lawsuit filed, there was an agreement reached that by next March they would do away with them voluntarily, but there was no allowance made for what would happen in a recall scenario. And the way that they tabulate them in California, which is a mechanical process, is far different, Sean, from what we saw on CNN in the '00 election, with people holding them up to the sunlight and trying to see if they could look through a hanging chad.
CALLEBS: Well, already, guys, you can tell that voters out there are very concerned. They don't want to be labeled the next Florida.
OK, let's move on. I want to talk about a criminal case in Oakland, California, that is raising questions about just how far a jury can be pushed. Now, for background, we have a report from Rita Williams, with CNN affiliate KTVU.
(BEGIN VIDEOTAPE)
RITA WILLIAMS, KTVU CORRESPONDENT (voice-over): Here at the Oakland courthouse, it looked as if the more than year-long trial of these three Oakland police officers, the so-called Riders, accused of beating and framing black suspects in West Oakland three years ago, might finally be over.
After deliberating for more than three months, jurors told the judge they had reached a unanimous verdict on only eight of the 35 charges against the three officers, and for the third time said they were hopelessly deadlocked on the others and wanted to go home for good.
But after a lengthy hearing, where for the first time they made public the numerical breakdown of their almost daily vote since September 8, the judge said there was enough movement that he ordered them to deliberate some more.
That caused one of the apparently exhausted and frustrated jurors to cry, another to glare at the district attorney. The prosecutor, after spending more than a year trying to convict the now-fired officers, argued for the jurors to keep trying. Defense attorneys argued against it.
UNIDENTIFIED MALE: I think it's absolutely incredible, inappropriate, uncalled for and these people have done what they needed to do. They have given more service than any other jury in the history of the state of California.
UNIDENTIFIED MALE: Runs the risk of telling this jury that they much reach a result even if it isn't the truth in order to go home, and we don't want that. We want the truth.
WILLIAMS: The judge would not announce verdicts that had been reached. Votes on other charges range from 11-1 on some to even splits on others.
The three officers are charged with crimes ranging from a misdemeanor, falsifying their time sheets, to felonies, such as kidnap and assault. Their alleged ring leader, Frank Choker-Vasquez (ph), fled, and the FBI now is trying to find him.
UNIDENTIFIED MALE: Won't be free today. Won't be free today.
WILLIAMS: One man, who says he's from West Oakland and has been victimized by some of the officers but is not part of this trial, yelled at the officers as they left the courtroom today.
UNIDENTIFIED MALE: It's not a fair trial. Look at the jury. There is a city, you know, that's 40-some percent black and Hispanic, but you look at the jury makeup, two Asians and the rest look like Europeans or Caucasians, I mean, why are there no blacks on that jury?
(END VIDEOTAPE)
CALLEBS: Well, Jayne, a lot of questions there. I want to go right to you. Your thoughts as a criminal defense attorney. Is the judge out of line here?
WEINTRAUB: Well, I don't know if the judge is out of line here. I think it's ridiculous to try and coerce a verdict. And at this point, I think that's the issue. I think that any verdict will be looked at on appeal, if there is an appeal. I think that the message here from the court is clear: Reach a verdict and I don't care what it is. And I'm afraid that the jurors will just vote to go home.
And I think what they should do is take the eight verdicts and then they'll make a decision later on whether or not to retry them on the remainder of the counts. Corruption cases are difficult cases to reach a verdict on to begin with, but we must go forward through the process. On appeal, if the judge makes them go forward, it will be coerced and it will come back anyway. So I say, let them go home, that's enough.
CALLEBS: Well, Michael, on the surface that all sounds easy, but is it realistic?
SMERCONISH: Well, she's absolutely right in this case. And Sean, the real danger that we face, and Jayne I'm sure would back me up on this, we have a difficult time in getting people to respond for notices for jury duty. I can only imagine Americans right now, you know, sitting in their kitchens watching this, who are saying, oh my God, a year of my life? Next time one of those notices arrives in the mail, I'll look for any excuse to get the heck out of the obligation. CALLEBS: At what point do you call a mistrial? That's what -- I'm kind of lost.
SMERCONISH: Well, a year is just too long. I mean, look -- this judge should have reined in this whole process long before now. I don't care what the trial is, you ought to be able to get it done in far less than a year's time. There is no such case that is sufficiently complicated that it takes a year to try it.
CALLEBS: And Jayne, as a defense attorney, you know if these guys are convicted that they're going to appeal, and they are going to have to go over this process once again.
WEINTRAUB: Exactly. But if they do appeal, one of the big issues that's being created by the judge unnecessarily now is whether or not the verdict will have been or the conviction will have been coerced, and that's why that's enough of an issue, and I think we should get away from it.
Michael's absolutely right. Although, Michael, they started deliberating in May. And that's why when a jury spends so much time painfully trying to reach a verdict and they can't, and they say they're hopelessly deadlocked, they need to be released.
CALLEBS: Michael, your thoughts on that?
SMERCONISH: They need to go home now. And the real concern here is that somebody's just going to fold their tent to get out of that room. And you don't want that.
CALLEBS: Yeah, it's gone on, it's pretty ugly. And it sounds like it's only going to get worse before it gets any better. I want to thank you both.
SMERCONISH: Thank you.
CALLEBS: Trial attorney Michael Smerconish in Philadelphia and Jayne Weintraub in Miami as well, thanks a lot.
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 September 21, 2003 - 10:33 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
SEAN CALLEBS, CNN ANCHOR: Time for court watch. And there are some compelling cases on the docket, not the least of which the California recall appeal. We now get "Legal Briefs" from our two experts, trial attorney and CNN contributor Michael Smerconish in Philadelphia. Michael, good to see you.
MICHAEL SMERCONISH, TRIAL ATTORNEY: Good morning.
CALLEBS: And criminal defense attorney Jayne Weintraub in Miami.
JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY: Good morning.
CALLEBS: Jayne, always a pleasure. Thanks for joining us.
Let's talk about that. The candidates out in California, they are going on, campaigning as if the 9th Circuit Court is going to reverse the ruling from the three-judge panel out there. Michael, let me get your thoughts on this. Is this going to be turned around?
SMERCONISH: I hope it is turned around. And I'm not a big fan of this recall notion. I mean, Gray Davis, say what you will about him, he was just reelected a year ago. The whole thing seems a bit ridiculous to me. But having said that, let's get it on, because delaying it until March is not the right outcome.
Those ballots were good enough to reelect Gray Davis, they should be good enough for the recall election.
CALLEBS: And Jayne, I guess we should point out that the whole focus is those punchcard ballots.
WEINTRAUB: Yes, well, being in Florida, I'm very familiar with those chads and the punchcards, and that's exactly what we want to avoid. And that's why I think there should be a delay. Why should we take a chance of having the election go forward and then the opposite side first having to come forward saying, it's a Bush v Gore issue, and the recount should happen because the chads and the punchcard ballots were not good? Every vote has to count. I say delay it, wait, redo the machines, have a valid election where everybody's vote counts.
CALLEBS: Well, Jayne, if you delay this, are you going to possibly run into something that you simply can't win? It's either going to be more of a fiasco, or something that is questioned from now until whenever? WEINTRAUB: Either way, it's a can of worms. But for me, I think that after having lived through this, really every day in Florida and being part of that process, I think that we need to make every vote count and that means a delay.
CALLEBS: Michael, what about your thoughts on this? As I understand it, these punchcards could affect about 44 percent of all the votes cast in California, certainly there seems to be a reason. Look, let's get this right if we're going to redo it?
SMERCONISH: But California has not had the problem that Florida has had with those punch ballot. And there was a lawsuit filed, there was an agreement reached that by next March they would do away with them voluntarily, but there was no allowance made for what would happen in a recall scenario. And the way that they tabulate them in California, which is a mechanical process, is far different, Sean, from what we saw on CNN in the '00 election, with people holding them up to the sunlight and trying to see if they could look through a hanging chad.
CALLEBS: Well, already, guys, you can tell that voters out there are very concerned. They don't want to be labeled the next Florida.
OK, let's move on. I want to talk about a criminal case in Oakland, California, that is raising questions about just how far a jury can be pushed. Now, for background, we have a report from Rita Williams, with CNN affiliate KTVU.
(BEGIN VIDEOTAPE)
RITA WILLIAMS, KTVU CORRESPONDENT (voice-over): Here at the Oakland courthouse, it looked as if the more than year-long trial of these three Oakland police officers, the so-called Riders, accused of beating and framing black suspects in West Oakland three years ago, might finally be over.
After deliberating for more than three months, jurors told the judge they had reached a unanimous verdict on only eight of the 35 charges against the three officers, and for the third time said they were hopelessly deadlocked on the others and wanted to go home for good.
But after a lengthy hearing, where for the first time they made public the numerical breakdown of their almost daily vote since September 8, the judge said there was enough movement that he ordered them to deliberate some more.
That caused one of the apparently exhausted and frustrated jurors to cry, another to glare at the district attorney. The prosecutor, after spending more than a year trying to convict the now-fired officers, argued for the jurors to keep trying. Defense attorneys argued against it.
UNIDENTIFIED MALE: I think it's absolutely incredible, inappropriate, uncalled for and these people have done what they needed to do. They have given more service than any other jury in the history of the state of California.
UNIDENTIFIED MALE: Runs the risk of telling this jury that they much reach a result even if it isn't the truth in order to go home, and we don't want that. We want the truth.
WILLIAMS: The judge would not announce verdicts that had been reached. Votes on other charges range from 11-1 on some to even splits on others.
The three officers are charged with crimes ranging from a misdemeanor, falsifying their time sheets, to felonies, such as kidnap and assault. Their alleged ring leader, Frank Choker-Vasquez (ph), fled, and the FBI now is trying to find him.
UNIDENTIFIED MALE: Won't be free today. Won't be free today.
WILLIAMS: One man, who says he's from West Oakland and has been victimized by some of the officers but is not part of this trial, yelled at the officers as they left the courtroom today.
UNIDENTIFIED MALE: It's not a fair trial. Look at the jury. There is a city, you know, that's 40-some percent black and Hispanic, but you look at the jury makeup, two Asians and the rest look like Europeans or Caucasians, I mean, why are there no blacks on that jury?
(END VIDEOTAPE)
CALLEBS: Well, Jayne, a lot of questions there. I want to go right to you. Your thoughts as a criminal defense attorney. Is the judge out of line here?
WEINTRAUB: Well, I don't know if the judge is out of line here. I think it's ridiculous to try and coerce a verdict. And at this point, I think that's the issue. I think that any verdict will be looked at on appeal, if there is an appeal. I think that the message here from the court is clear: Reach a verdict and I don't care what it is. And I'm afraid that the jurors will just vote to go home.
And I think what they should do is take the eight verdicts and then they'll make a decision later on whether or not to retry them on the remainder of the counts. Corruption cases are difficult cases to reach a verdict on to begin with, but we must go forward through the process. On appeal, if the judge makes them go forward, it will be coerced and it will come back anyway. So I say, let them go home, that's enough.
CALLEBS: Well, Michael, on the surface that all sounds easy, but is it realistic?
SMERCONISH: Well, she's absolutely right in this case. And Sean, the real danger that we face, and Jayne I'm sure would back me up on this, we have a difficult time in getting people to respond for notices for jury duty. I can only imagine Americans right now, you know, sitting in their kitchens watching this, who are saying, oh my God, a year of my life? Next time one of those notices arrives in the mail, I'll look for any excuse to get the heck out of the obligation. CALLEBS: At what point do you call a mistrial? That's what -- I'm kind of lost.
SMERCONISH: Well, a year is just too long. I mean, look -- this judge should have reined in this whole process long before now. I don't care what the trial is, you ought to be able to get it done in far less than a year's time. There is no such case that is sufficiently complicated that it takes a year to try it.
CALLEBS: And Jayne, as a defense attorney, you know if these guys are convicted that they're going to appeal, and they are going to have to go over this process once again.
WEINTRAUB: Exactly. But if they do appeal, one of the big issues that's being created by the judge unnecessarily now is whether or not the verdict will have been or the conviction will have been coerced, and that's why that's enough of an issue, and I think we should get away from it.
Michael's absolutely right. Although, Michael, they started deliberating in May. And that's why when a jury spends so much time painfully trying to reach a verdict and they can't, and they say they're hopelessly deadlocked, they need to be released.
CALLEBS: Michael, your thoughts on that?
SMERCONISH: They need to go home now. And the real concern here is that somebody's just going to fold their tent to get out of that room. And you don't want that.
CALLEBS: Yeah, it's gone on, it's pretty ugly. And it sounds like it's only going to get worse before it gets any better. I want to thank you both.
SMERCONISH: Thank you.
CALLEBS: Trial attorney Michael Smerconish in Philadelphia and Jayne Weintraub in Miami as well, thanks a lot.
TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com
