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CNN Live Sunday

Legal Roundtable

Aired October 19, 2003 - 10:14   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.


SUZANNE MALVEAUX, CNN ANCHOR: A comatose Florida woman is slowly starving to death after being taken off her feeding tube. Our legal roundtable features CNN contributor Michael Smerconish, trial attorney and talk show host. He's in Philadelphia. Jayne Weintraub is a criminal defense attorney. She joins us from Miami.
Let's start first with you, Michael. The Kobe Bryant case, it is expected that the judge will take this to full trial. But what we have seen is that the defense really seemed to poke some holes in the prosecution's -- rather the prosecutor pokes some holes -- the defense poked some holes in the prosecution's case, and some damage has been done here causing quite a bit of doubt in her story. What's next?

MICHAEL SMERCONISH, TRIAL ATTORNEY: Well, it's certainly not the same case, Suzanne, that it was before the preliminary hearing. And let me compliment Jayne, because two weeks ago here I said there wouldn't be a preliminary hearing. I didn't see what the up side would be for the defense.

And Jayne thought there would be, and she was right and I was wrong. I certainly get it now. They had some damage that they thought they could do.

We used to walk around and say, well, can Kobe Bryant get a fair trial in Eagle County, Colorado? Now people are walking around, wondering if this woman can get a fair trial because of all the damning evidence that came out in the preliminary hearing, which is itself unusual.

MALVEAUX: Jayne, what's your take on this?

JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY: Better question is, why are they going to bother having a trial, not who can get a fair trial? I thing that the case needs to be resolved by way of either a misdemeanor plea and a civil global settlement, and everybody needs to go on their way.

This case should not be brought to trial, although the judge will bind it over. The evidence is not there beyond a reasonable doubt. There's just too much at stake, though.

MALVEAUX: Let's go on to Terri Schiavo, the case there, the brain damaged woman. The feeding tube was taken out on Wednesday despite the wishes of her parents. Very interesting.

Before that happened, her parents spoke with the Florida governor, Jeb Bush, who said he was going to try to do something to help out. Is it too late at this point? There have been occasions when her feeding tube was removed and put back in, that she could possibly survive. Is there something that the governor can do at this point?

SMERCONISH: Probably not.

WEINTRAUB: Sorry, Michael.

MALVEAUX: Michael, go ahead, you first.

SMERCONISH: I say that there's probably nothing left that the governor can do except console this family. And what makes this case so difficult, Suzanne, is that you go to a Web site that's out there, terrisfight.org, I think it is, and you watch film footage of this woman lying in a hospital bed. And to the lay person, it looks like she's responsive.

It looks like she can follow a balloon moving around in her room. But the medical testimony is pretty uniform. And it says these are involuntary reactions, and that she's in a permanent vegetative condition, not a coma. And she's not coming back. It's tough.

MALVEAUX: Jayne, is there anything the governor can do at this time?

WEINTRAUB: The governor tried to intervene, and the answer is no. You know, this has been done under a Florida very specific statute of a right to die statute.

It's not just her parents, Suzanne. Her husband is her legal guardian. The parents and the husband have an acrimonious relationship.

What's so unusual here, though, is that they've gone to court, the court heard testimony from the husband that it was her desire if she were ever a vegetable she would not want to live like that. So the right to die statute in Florida takes the consideration and the testimony of someone's wishes when there's no legal written instruction. And that's what's happened here. It's a tragedy.

MALVEAUX: Michael, what do you think? The parents overruled the husband in this case?

SMERCONISH: Well, you know, there's so much out there, and you wonder who to believe. And we're all on the outside looking in.

What I keep coming back to is that the Florida court system has spent a considerable amount of time doing a lot of fact finding. And in this case, they've consistently said that she did, to the extent necessary, articulate her wishes, should this condition ever come her way. And they have upheld what the husband is trying to do, not the parents. So I think at some point, you have to stand back and put your assurance in what the court determination has been.

WEINTRAUB: Suzanne, the issue isn't really what the parents want or what the husband wants. Remember, the focus -- and what Michael's saying is the court focuses on what the woman wants, the incapacitated person. That's the person's wishes that need to be followed.

SMERCONISH: And what's really going on here is that the husband is just getting trashed by so many people who are observers to this case. But the flip side is to look at him as a guy who's being noble and standing up for what the desires were of his wife.

MALVEAUX: Let's move on to the next case, the Pledge of Allegiance. The Supreme Court has decided to take on this case. At issue, of course, is whether or not there should be banned from public schools from using the words "under god" -- Jayne.

WEINTRAUB: Well, legally, the issue, of course, is it's a First Amendment case. And the right of people to say no is always present, Suzanne. Let's not forget.

This case will only apply to willing students who say the Pledge of Allegiance. No child can be penalized in the public system for refusing to say the Pledge of Allegiance. The case is going to the Supreme Court on Tuesday because of the words "under god, indivisible."

You know, what's my take on it? I don't think that there should be a case going to the Supreme Court like this, especially in the wake of 9/11. If you don't believe in god, we have money that says "in god we trust." But it is a First Amendment issue.

The legal challenge is the establishment clause, freedom of religion. Personally, as a mom and as a person, as an American, I think the case is just silly.

MALVEAUX: Michael, I'll give you the last word on that one.

SMERCONISH: Bottom line is that the Constitution does not prevent a mingling of religion and the rest of our daily lives. It just says you can't establish a particular religion. We're not establishing a religion by having a voluntary pledge of allegiance. Let the pledge stand as it is.

MALVEAUX: Michael Smerconish and Jayne Weintraub, thank you very much. Appreciate it.

WEINTRAUB: Thank you.

SMERCONISH: 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 October 19, 2003 - 10:14   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
SUZANNE MALVEAUX, CNN ANCHOR: A comatose Florida woman is slowly starving to death after being taken off her feeding tube. Our legal roundtable features CNN contributor Michael Smerconish, trial attorney and talk show host. He's in Philadelphia. Jayne Weintraub is a criminal defense attorney. She joins us from Miami.
Let's start first with you, Michael. The Kobe Bryant case, it is expected that the judge will take this to full trial. But what we have seen is that the defense really seemed to poke some holes in the prosecution's -- rather the prosecutor pokes some holes -- the defense poked some holes in the prosecution's case, and some damage has been done here causing quite a bit of doubt in her story. What's next?

MICHAEL SMERCONISH, TRIAL ATTORNEY: Well, it's certainly not the same case, Suzanne, that it was before the preliminary hearing. And let me compliment Jayne, because two weeks ago here I said there wouldn't be a preliminary hearing. I didn't see what the up side would be for the defense.

And Jayne thought there would be, and she was right and I was wrong. I certainly get it now. They had some damage that they thought they could do.

We used to walk around and say, well, can Kobe Bryant get a fair trial in Eagle County, Colorado? Now people are walking around, wondering if this woman can get a fair trial because of all the damning evidence that came out in the preliminary hearing, which is itself unusual.

MALVEAUX: Jayne, what's your take on this?

JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY: Better question is, why are they going to bother having a trial, not who can get a fair trial? I thing that the case needs to be resolved by way of either a misdemeanor plea and a civil global settlement, and everybody needs to go on their way.

This case should not be brought to trial, although the judge will bind it over. The evidence is not there beyond a reasonable doubt. There's just too much at stake, though.

MALVEAUX: Let's go on to Terri Schiavo, the case there, the brain damaged woman. The feeding tube was taken out on Wednesday despite the wishes of her parents. Very interesting.

Before that happened, her parents spoke with the Florida governor, Jeb Bush, who said he was going to try to do something to help out. Is it too late at this point? There have been occasions when her feeding tube was removed and put back in, that she could possibly survive. Is there something that the governor can do at this point?

SMERCONISH: Probably not.

WEINTRAUB: Sorry, Michael.

MALVEAUX: Michael, go ahead, you first.

SMERCONISH: I say that there's probably nothing left that the governor can do except console this family. And what makes this case so difficult, Suzanne, is that you go to a Web site that's out there, terrisfight.org, I think it is, and you watch film footage of this woman lying in a hospital bed. And to the lay person, it looks like she's responsive.

It looks like she can follow a balloon moving around in her room. But the medical testimony is pretty uniform. And it says these are involuntary reactions, and that she's in a permanent vegetative condition, not a coma. And she's not coming back. It's tough.

MALVEAUX: Jayne, is there anything the governor can do at this time?

WEINTRAUB: The governor tried to intervene, and the answer is no. You know, this has been done under a Florida very specific statute of a right to die statute.

It's not just her parents, Suzanne. Her husband is her legal guardian. The parents and the husband have an acrimonious relationship.

What's so unusual here, though, is that they've gone to court, the court heard testimony from the husband that it was her desire if she were ever a vegetable she would not want to live like that. So the right to die statute in Florida takes the consideration and the testimony of someone's wishes when there's no legal written instruction. And that's what's happened here. It's a tragedy.

MALVEAUX: Michael, what do you think? The parents overruled the husband in this case?

SMERCONISH: Well, you know, there's so much out there, and you wonder who to believe. And we're all on the outside looking in.

What I keep coming back to is that the Florida court system has spent a considerable amount of time doing a lot of fact finding. And in this case, they've consistently said that she did, to the extent necessary, articulate her wishes, should this condition ever come her way. And they have upheld what the husband is trying to do, not the parents. So I think at some point, you have to stand back and put your assurance in what the court determination has been.

WEINTRAUB: Suzanne, the issue isn't really what the parents want or what the husband wants. Remember, the focus -- and what Michael's saying is the court focuses on what the woman wants, the incapacitated person. That's the person's wishes that need to be followed.

SMERCONISH: And what's really going on here is that the husband is just getting trashed by so many people who are observers to this case. But the flip side is to look at him as a guy who's being noble and standing up for what the desires were of his wife.

MALVEAUX: Let's move on to the next case, the Pledge of Allegiance. The Supreme Court has decided to take on this case. At issue, of course, is whether or not there should be banned from public schools from using the words "under god" -- Jayne.

WEINTRAUB: Well, legally, the issue, of course, is it's a First Amendment case. And the right of people to say no is always present, Suzanne. Let's not forget.

This case will only apply to willing students who say the Pledge of Allegiance. No child can be penalized in the public system for refusing to say the Pledge of Allegiance. The case is going to the Supreme Court on Tuesday because of the words "under god, indivisible."

You know, what's my take on it? I don't think that there should be a case going to the Supreme Court like this, especially in the wake of 9/11. If you don't believe in god, we have money that says "in god we trust." But it is a First Amendment issue.

The legal challenge is the establishment clause, freedom of religion. Personally, as a mom and as a person, as an American, I think the case is just silly.

MALVEAUX: Michael, I'll give you the last word on that one.

SMERCONISH: Bottom line is that the Constitution does not prevent a mingling of religion and the rest of our daily lives. It just says you can't establish a particular religion. We're not establishing a religion by having a voluntary pledge of allegiance. Let the pledge stand as it is.

MALVEAUX: Michael Smerconish and Jayne Weintraub, thank you very much. Appreciate it.

WEINTRAUB: Thank you.

SMERCONISH: 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