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CNN Live Sunday
Legal Briefs
Aired September 28, 2003 - 10:35 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.
SOPHIA CHOI, CNN ANCHOR: In California, only nine days to go until the recall election and the negative campaigning is in full swing. The election has crossed the hurdle of the courts and now the national political parties are deciding whether to contribute to the coffers of candidates.
With a look at this case, and others for the courts, Pamela Hayes joins us from New York. She's a former prosecutor, now a criminal defense attorney; and from Philadelphia Michael Smerconish is a CNN contributor, as well as trial attorney and talk show host.
Thanks to both of you for joining us.
What do you guys make of the 9th Circuit Court of Appeals decision to essentially overturn what three members of the same court had decided earlier?
Let's start with you, Michael.
MICHAEL SMERCONISH, CNN CONTRIBUTOR: I wasn't surprised by it, Sophia. The 9th Circuit Court of Appeals is arguably the most aberrant and the most liberal of any of the courts of appeals in the United States.
The fact this they accepted that case, the full panel, so quickly told me and told a lot of legal pundits that they wanted to right that wrong. I think they came out on the correct side of the fence. They said 500,000 have already voted by absentee ballot and their rights are more of a concern to us than the potential for hanging chad problems.
CHOI: Pamela, your take?
PAMELA HAYES, FORMER PROSECUTOR: I think they wanted to make sure that the election went on. I think the aspect about a potential wrong didn't outweigh the fact that they needed to move forward.
I don't think it was so odd that they jumped to it so fast. They're on a tight time schedule. And they just had to move. And I don't think they wanted any more ramifications, like going to the U.S. Supreme Court, like what happened in the 2000 elections with the presidency.
CHOI: Pamela, are there any realistic legal options left for those who don't want this recall to go forward? HAYES: I don't think so, really. Because they could have applied for a stay to the United States Supreme Court, but I think the individuals that the stay would have gone to -- or the writ would have gone to was Justice Scalia. And I don't think those people wanted him making a decision on this particular case.
So they are stuck, and basically they're going to move forward as it is.
CHOI: Michael, let's move on to the "Do Not Call" list. What is your take on the ruling for telemarketers on the basis of free speech?
SMERCONISH: Sophia, I hate it when they call. I use the old Seinfeld line. I say to the person may I please have your telephone number because I'd like to call you a little bit later tonight. When I heard that this Colorado federal judge turned it on its ear, I was really frustrated. I then I read his opinion.
Here's the silver lining that we may get out of this. What the judge said was you can't discriminate against commercial calls when you will allow political calls and charities still to be made. The net effect of this thing might be that we -- consumers at home, could now say, we don't want any of these people to call. We don't want commercial calls, charitable calls, political pollsters. That would be a great thing.
CHOI: Pamela, this now goes to the 10 Circuit Court of Appeals in Denver, to kind of iron out what the courts decide. The Supreme Court though has already ruled that consumers can block junk mail. Will that weigh in this case?
HAYES: I think it might weigh because it's a form of communication. But what the 10th Circuit is really deciding here are a lot of constitutional issues.
What we're trying to find out is who has the greater priority, the greater interest? Does a telemarketing company's right to free speech trump an individual's right to privacy? And not to be, you know, bothered?
I think everybody on both sides of the issue doesn't like the idea of being disturbed in the middle of coming home from work and around dinnertime. But the question really is whose rights are paramount in this concern? And it's going to be really interesting in finding out what the court says.
CHOI: All right. We've only got about buck, 30 left in this segment. Let me move on to the Kansas Wal-Mart controversy.
A woman takes a picture of her three-year-old playing in an outdoor pool. The little girl has her top off. The mother comes to Wal-Mart to pick up her pictures once they're developed. She gets arrested -- not arrested -- she gets interrogated by police.
Let me make that clear. She was not arrested, just interrogated by police. Then Wal-Mart kept the pictures. She's filed a lawsuit against Wal-Mart.
Michael, what's your take on this how strong is her case?
SMERCONISH: You have to see the picture to know what we're dealing with. That old-line about pornography, "I know it, when I see it", applies.
When I left my house, here in Philadelphia, an hour ago, Sophia, my three-year-old had a Bob The Builder tool belt on and he was naked. Now, I guess if somebody took a picture of that and turned it in to Wal-Mart I could be in a heap of trouble. But you know, with kids this is sometimes what happens.
CHOI: But Pamela, does this woman have a case? Will they win in court?
HAYES: I think she has an absolute case. This is far overreaching. It's outrageous to think that a three-year-old -- we've had tons of pictures of little kids taken, pictures in the bathtub. The question is, this woman was detained for no probable cause.
She has a right, even though she wasn't arrested, she was detained. They had no right to do that. This is total outrage. If they wanted to keep the pictures, they should have spoke with the district attorney the next day and they could have contacted this woman. They had no right to inflict this emotional distress on her. And I think she has a very good case.
CHOI: Michael, we are almost out of time but I've got to give Wal-Mart a say here.
SMERCONISH: Oh, listen.
CHOI: Don't they have a defense saying, being overly protective on the side of children is a good thing?
SMERCONISH: Absolutely. I want Wal-Mart not just to develop photographs that are pornographic and involve three-year-olds -- hey, listen, the police report allegedly says in this case that they thought that the father was naked from the waist down in the swimming pool.
I don't know if that's true, but if it is true, Wal-Mart did the right thing in waving the flag.
CHOI: Pamela Hayes, defense attorney, former prosecutor and Michael Smerconish, basically a jack of all trades, CNN contributor, trial attorney and talk show host. Thank you for joining us.
SMERCONISH: Thank you.
HAYES: Thank you.
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 28, 2003 - 10:35 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
SOPHIA CHOI, CNN ANCHOR: In California, only nine days to go until the recall election and the negative campaigning is in full swing. The election has crossed the hurdle of the courts and now the national political parties are deciding whether to contribute to the coffers of candidates.
With a look at this case, and others for the courts, Pamela Hayes joins us from New York. She's a former prosecutor, now a criminal defense attorney; and from Philadelphia Michael Smerconish is a CNN contributor, as well as trial attorney and talk show host.
Thanks to both of you for joining us.
What do you guys make of the 9th Circuit Court of Appeals decision to essentially overturn what three members of the same court had decided earlier?
Let's start with you, Michael.
MICHAEL SMERCONISH, CNN CONTRIBUTOR: I wasn't surprised by it, Sophia. The 9th Circuit Court of Appeals is arguably the most aberrant and the most liberal of any of the courts of appeals in the United States.
The fact this they accepted that case, the full panel, so quickly told me and told a lot of legal pundits that they wanted to right that wrong. I think they came out on the correct side of the fence. They said 500,000 have already voted by absentee ballot and their rights are more of a concern to us than the potential for hanging chad problems.
CHOI: Pamela, your take?
PAMELA HAYES, FORMER PROSECUTOR: I think they wanted to make sure that the election went on. I think the aspect about a potential wrong didn't outweigh the fact that they needed to move forward.
I don't think it was so odd that they jumped to it so fast. They're on a tight time schedule. And they just had to move. And I don't think they wanted any more ramifications, like going to the U.S. Supreme Court, like what happened in the 2000 elections with the presidency.
CHOI: Pamela, are there any realistic legal options left for those who don't want this recall to go forward? HAYES: I don't think so, really. Because they could have applied for a stay to the United States Supreme Court, but I think the individuals that the stay would have gone to -- or the writ would have gone to was Justice Scalia. And I don't think those people wanted him making a decision on this particular case.
So they are stuck, and basically they're going to move forward as it is.
CHOI: Michael, let's move on to the "Do Not Call" list. What is your take on the ruling for telemarketers on the basis of free speech?
SMERCONISH: Sophia, I hate it when they call. I use the old Seinfeld line. I say to the person may I please have your telephone number because I'd like to call you a little bit later tonight. When I heard that this Colorado federal judge turned it on its ear, I was really frustrated. I then I read his opinion.
Here's the silver lining that we may get out of this. What the judge said was you can't discriminate against commercial calls when you will allow political calls and charities still to be made. The net effect of this thing might be that we -- consumers at home, could now say, we don't want any of these people to call. We don't want commercial calls, charitable calls, political pollsters. That would be a great thing.
CHOI: Pamela, this now goes to the 10 Circuit Court of Appeals in Denver, to kind of iron out what the courts decide. The Supreme Court though has already ruled that consumers can block junk mail. Will that weigh in this case?
HAYES: I think it might weigh because it's a form of communication. But what the 10th Circuit is really deciding here are a lot of constitutional issues.
What we're trying to find out is who has the greater priority, the greater interest? Does a telemarketing company's right to free speech trump an individual's right to privacy? And not to be, you know, bothered?
I think everybody on both sides of the issue doesn't like the idea of being disturbed in the middle of coming home from work and around dinnertime. But the question really is whose rights are paramount in this concern? And it's going to be really interesting in finding out what the court says.
CHOI: All right. We've only got about buck, 30 left in this segment. Let me move on to the Kansas Wal-Mart controversy.
A woman takes a picture of her three-year-old playing in an outdoor pool. The little girl has her top off. The mother comes to Wal-Mart to pick up her pictures once they're developed. She gets arrested -- not arrested -- she gets interrogated by police.
Let me make that clear. She was not arrested, just interrogated by police. Then Wal-Mart kept the pictures. She's filed a lawsuit against Wal-Mart.
Michael, what's your take on this how strong is her case?
SMERCONISH: You have to see the picture to know what we're dealing with. That old-line about pornography, "I know it, when I see it", applies.
When I left my house, here in Philadelphia, an hour ago, Sophia, my three-year-old had a Bob The Builder tool belt on and he was naked. Now, I guess if somebody took a picture of that and turned it in to Wal-Mart I could be in a heap of trouble. But you know, with kids this is sometimes what happens.
CHOI: But Pamela, does this woman have a case? Will they win in court?
HAYES: I think she has an absolute case. This is far overreaching. It's outrageous to think that a three-year-old -- we've had tons of pictures of little kids taken, pictures in the bathtub. The question is, this woman was detained for no probable cause.
She has a right, even though she wasn't arrested, she was detained. They had no right to do that. This is total outrage. If they wanted to keep the pictures, they should have spoke with the district attorney the next day and they could have contacted this woman. They had no right to inflict this emotional distress on her. And I think she has a very good case.
CHOI: Michael, we are almost out of time but I've got to give Wal-Mart a say here.
SMERCONISH: Oh, listen.
CHOI: Don't they have a defense saying, being overly protective on the side of children is a good thing?
SMERCONISH: Absolutely. I want Wal-Mart not just to develop photographs that are pornographic and involve three-year-olds -- hey, listen, the police report allegedly says in this case that they thought that the father was naked from the waist down in the swimming pool.
I don't know if that's true, but if it is true, Wal-Mart did the right thing in waving the flag.
CHOI: Pamela Hayes, defense attorney, former prosecutor and Michael Smerconish, basically a jack of all trades, CNN contributor, trial attorney and talk show host. Thank you for joining us.
SMERCONISH: Thank you.
HAYES: Thank you.
TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com
