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CNN Connie Chung Tonight
Man Faces Murder Charges for Letting Drunken Friend Drive; Fertility Clinic Gives Mother Wrong Embryo, Custody Battle for 16- Month-Old Ensues
Aired August 07, 2002 - 20:00 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.
CONNIE CHUNG, CNN ANCHOR: Good evening. I'm Connie Chung.
Tonight: His best friend was driving drunk, so why is he on trial?
ANNOUNCER: Let his best friend drive, now he's charged as an accessory to murder.
UNIDENTIFIED LAWYER: Kenneth Powell gambled with the lives of other people.
(END VIDEO CLIP)
ANNOUNCER: The first case of its kind. Who's to blame if a friend lets a friend drive drunk?
A single mom. All she wanted was a baby, until the unthinkable: a fertility clinic mix-up, a 16-month-old child now in the center of an ugly custody battle.
Chilling accusations.
(BEGIN VIDEO CLIP)
JEFF DUSEK, PROSECUTOR: Stop screaming! If someone hears you, I'll have to kill you.
(END VIDEO CLIP)
ANNOUNCER: Passionate opposition.
(BEGIN VIDEO CLIP)
STEVEN FELDMAN, ATTORNEY FOR DAVID WESTERFIELD: There's no evidence in the world -- nothing prevented in this courtroom ever to indicate David Westerfield had the slightest knowledge of what Danielle van Dam may or may not have had in her bedroom.
(END VIDEO CLIP)
ANNOUNCER: Final arguments in the trial of David Westerfield, accused of kidnapping and murdering Danielle van Dam. The Little Marias, now on their own. The latest on the Guatemalan miracle girls. Tonight we'll check in with their doctors for an update.
This is CONNIE CHUNG TONIGHT.
Live from the CNN Broadcast Center in New York: Connie Chung.
CHUNG: Good evening.
Tomorrow morning a jury will continue deciding whether Kenneth Powell should face as much as 15 years in prison for a drunk driving accident he was nowhere near. He wasn't drinking or driving, or even serving drinks. What he did was drop his best friend off at his car.
He's on trial now because that proved to be a fatal move.
CNN's Bob Franken has the story.
(BEGIN VIDEOTAPE)
BOB FRANKEN, CNN NATIONAL CORRESPONDENT (voice-over): After more than a day, the jurors reported they were deadlocked. Their difficulty hardly a surprise in a case that could well break some new legal ground.
But the judge insisted they stay with it.
UNIDENTIFIED JUDGE: I would ask you to deliberate with a view towards reaching a unanimous decision. So have a nice evening, and tomorrow...
FRANKEN: They're deliberating the fate of 40-year-old Kenneth Powell, charged with manslaughter, vehicular homicide and aggravated assault, facing up to 15 years in prison, even though he was nowhere near the car when its drunken driving swerved into an oncoming vehicle.
Two died, a third was critically injured.
UNIDENTIFIED POLICEMAN: I want you to count from one to 30.
MICHAEL PANGLE: One to 30? One, two, three, four...
FRANKEN: One of the dead was Michael Pangle, the drunk driver who had been jailed earlier that evening about two years ago, arrested by New Jersey state troopers after a night of heavy drinking.
PANGLE: What are you going to do (ph), arrest me now?
UNIDENTIFIED POLICEMAN: Yes.
FRANKEN: Three hours later, after he had called his friend at home, Pangle was out of jail and back behind the wheel of his car.
Police had released him to Powell, who took him back to his automobile and left him. Powell went home, but Michael Pangle drank some more and drove some more.
Three more hours later, Pangle swerved, slammed his vehicle into the oncoming car driven by 22-year-old Navy Ensign Johnny Elliott. Both Elliott and Pangle were killed.
Ensign Elliot had graduated from the naval academy just two months before.
WILLIAM ELLIOTT, VICTIM'S FATHER: It will be hard, if there's an acquittal, not to take it personally but we know that there is a greater good that will come out of this, regardless of this verdict.
FRANKEN: And that is the national attention this case is getting. Experts believe it would be unprecedented if Powell was convicted for drunken driving deaths if he was neither in the car, nor provided any alcohol.
Last year New Jersey adopted a new law which allows police to impound a drunk driver's vehicle for up to 12 hours.
But John's Law, as it's called, was passed after the death of Johnny Elliott.
ELLIOTT: The waiting is the hardest part, there is no question. But again, for the last two years, every morning we have awakened knowing that we would never see our son's face and never hear his voice, or never hold him again.
FRANKEN: Johnny Elliott's parents say he was hoping to become a naval pilot. Kenneth Powell just wanted to be a friend when Michael Pangle woke him up that night.
(END VIDEOTAPE)
FRANKEN: Now Elliott is dead, Pangle is dead, and Powell faces the possibility of prison because of a horrible mistake made about his friend -- Connie.
CHUNG: Bob, what is the legal argument the prosecutors are making?
FRANKEN: The prosecutors are saying that by giving him the keys of the car, that Powell acted in such an irresponsible way as to come across the line into manslaughter. As you know, negligence is one of the grounds for manslaughter. And basically they're saying that he acted in that way.
He didn't have to be there, as the prosecutor said. They provided him with the gun, playing Russian roulette, and it ended tragically.
CHUNG: But aren't the defense lawyers saying, he wasn't literally giving the keys to his friend. In fact, the police turned the keys over to this man, who was apparently drunk.
And this friend had no obligation. In fact, he had been asleep at home when he was called. He's not responsible, I would think they're saying, for going and making sure that this man did not drive.
Is that basically what the defense is saying?
FRANKEN: That is probably said better than maybe they said it in court, Connie.
What they're saying is that all he is being tried for murder for -- and remember, this is a murder charge -- he's being tried for murder for simply being a friend. That he had nothing whatsoever to do with this. He only acted after the police, in effect, say the defense lawyers, give him permission to do what he did.
CHUNG: Bob, you touched on this a little bit, but what kind of impact would there be if, indeed, this man is found guilty?
FRANKEN: It would be huge. It would open up a whole new realm of the law that has evolved over the couple of decades on drunk driving. The Mothers Against Drunk Driving are watching this very, very closely.
As you know, a bartender, for instance, can be charged in many states if he provided drinks to somebody and it can be proven that he knew he was drunk and then there is a drunk driving incident. That, of course, is because he provided him, in effect, the poison.
What makes this different is that there was no alcohol exchanged by the defendant and the drunk driver.
This would expand the law. It could have a rather large impact. Defense attorneys point out this could mean that the toll taker at a toll booth could be responsible if he or she allowed somebody to pay and then continue to drive. So it could have that impact, according to defense attorneys.
CHUNG: All right, Bob Franken, thank you so much.
Earlier today I spoke with the family of the man killed by Michael Pangle.
According to prosecutors, Navy Ensign John Elliot died as a consequence of Kenneth Powell's actions.
(BEGIN VIDEOTAPE)
CHUNG: John Elliott's parents, Mr. and Mrs. Bill Elliott and his sister Jennifer are joining us now.
Thank you so much for being with us. We appreciate it.
W. ELLIOTT: Thank you, Connie.
CHUNG: Mrs. Elliott, can you tell us about your son? I know that he was on his way to your birthday party that night.
MURIEL ELLIOTT, MOTHER OF DWI VICTIM: John was everything a mother would want in a son. He had just graduated in May from the U.S. Naval Academy. He was the happiest person that you could ever know, and he was on his way to flight school.
And he was a leader. He was someone that people cared about. He cared about others. And this tragedy has just really changed our lives.
CHUNG: I can well imagine.
Mr. Elliott, you must have been very proud of him.
W. ELLIOTT: No parent could have been prouder than we were, and I was, of our son and brother. He was not only a wonderful son, and the finest son you could ever have, he was our best friend. And we miss him dearly every day. Waking up every day knowing you will never see him or hear his voice again is very, very hard for us.
CHUNG: I'm sure.
Jennifer, what do you remember most about your brother, and why was he such a friend to you?
JENNIFER ELLIOTT, SISTER OF DWI VICTIM: I remember his smile the most. That was the first thing that you'd notice about John, he was always smiling.
I just remember the good time we had. He was my best friend as well as my older brother. And I let those memories keep me going through all of this, and just try to stay positive in the hope that something good can come out of all this terrible mess.
CHUNG: Mr. Elliott, John's girlfriend Kristen (ph) was also in the car, and she was critically injured. How is she doing now?
W. ELLIOTT: She's recovered physically, Connie. She still is going through a lot emotionally, as you might expect, as we are. She actually is on vacation this week trying to relax, and trying to continue her recovery.
She the is teaching now. She graduated from college and she's teaching high school English.
CHUNG: Did she see a different side of John Elliott, one that she had never seen before when this horrible accident occurred?
W. ELLIOTT: What she remembers from the crash is that John's last action was to turn the wheel violently to try to avoid the accident, and that action probably saved her life. It's consistent with the way John was as a person. He always gave to others and thought of others, and we believe his actions were heroic that night in helping to save Kristen's life.
CHUNG: Mr. Elliott, do you believe that the police are as responsible as Kenneth Powell, or anyone in allowing this tragedy to occur?
W. ELLIOTT: Well, we'd really rather not talk about the trial until after the verdict other than to say that the tragedy that took our son's life could have and should have been avoided, in our opinion. Our son pledged his life and his honor to protect this country, and we were not able to save him from a drunk driver. Our mission now is to make sure that in his name we make a difference to make sure this tragedy doesn't happen to any other family.
CHUNG: I'm sure, sir, that you heard this from the defense side, and that is that Kenneth Powell didn't own the vehicle, he wasn't driving it, he wasn't even at the scene. The defense would say, how could he be held responsible?
W. ELLIOTT: Well, the jury will decide that, and we will live with whatever that verdict is. But more importantly is why was Michael Pangle on the road at all that night, and that is a bigger question that I think society needs to answer. How seriously do we take drunk driving in America, when 16,000 people a year are killed and 350,000 are injured every year, because people who shouldn't be on the road because they're drunk are on the road.
CHUNG: The question is how far does the responsibility go, if a friend makes a mistake, didn't mean to. Can you understand why some people might say maybe this is taking the responsibility a little too far?
W. ELLIOTT: We understand that argument. But we also believe it's important to remember this trial is not about whether someone well intentioned meant to do the right thing. The question is whether they did the wrong thing. And we think it's important that people separate the concept of a good samaritan trying to do something to keep a drunk driver off the road, and somebody who helps, aids, and/or abets a person in getting behind the wheel, knowing that they're intoxicated.
That's what this trial is about. The jury has to answer that question. But after this trial is over, the bigger question is what are we going to do about the issue that this trial raises, and what is society's response, and do we feel that we're on the front lines and that we have responsibility and aren't just delegating it to law enforcement authorities or somebody else?
CHUNG: And actually you and your family have done something. Can you explain to us what John's Law is, which you succeeded in having passed in New Jersey?
John's Law was passed in New Jersey faster than any other law in New Jersey, unanimously. It went into effect last August, and it now requires police in New Jersey to impound the cars of someone charged with drunk driving for up to 12 hours and issue responsibility warnings to anyone who comes to take custody of that person at the police station.
It's had a tremendous deterrent effect in New Jersey. It's just been introduced in Congress, and we hope that the whole nation would support this becoming a national law. It will save lives, there's no question.
CHUNG: So your fondest dream would be for this to become a national law, but would I be safe in saying you would also want Kenneth Powell to go to prison for 15 years?
W. ELLIOTT: We are not motivated by anger or vengeance. We are motivated by justice for John and fulfilling a dream and a promise we made to our son. The jury will decide the fate of Kenneth Powell, and we will live with that verdict.
CHUNG: Jennifer and Mrs. Elliot, what do you think John would want at this moment?
M. ELLIOTT: I think John would want all of us to continue in a positive way, and to do -- to continue with our hero campaign for designated drivers and to continue nationally to -- with John's Law. He would want us to be positive.
J. ELLIOTT: I know for sure John wouldn't like the fuss that's being made over him. He was very humble and this is focusing a lot of attention.
W. ELLIOTT: He'd put it up with if he knew it would to a greater good.
CHUNG: Apparently the jury is having a difficult time reaching a decision. They appealed to the judge and the judge said go back tomorrow and deliberate a little more. What do you think -- what is your reaction hearing that?
W. ELLIOTT: I think there was three weeks of testimony and lots of evidence for this jury to consider and to pore over. I think it's a difficult decision. I think they probably understand that this is potentially precedent-setting, and I think that they are just being very, very careful about their responsibility and take that responsibility very seriously.
CHUNG: Honestly, wouldn't you have a difficult time making a decision in this case?
W. ELLIOTT: You know, it would be difficult for us to put ourselves in the place of a jury, because we have a point of view about this, and it's hard not to take this whole issue personally. We lost a son. We lost him in a horrible crash that was detailed in this trial. And we heard witnesses -- eyewitnesses talk about how our son died.
It's tough to be impartial. You know, some people may say the prosecution proceeded with this case because it wanted to shift responsibility from the state authorities, from the police, from everyone in authority off to a man who could be considered in some minds -- in some people's minds, responsible. Can you understand that viewpoint as well?
W. ELLIOTT: We can understand that that debate will probably go on regardless of this verdict, after this trial. But again, our focus is on what we lost. We lost a son in an accident that never should have happened. And the question we have, the larger question than just what this jury is considering is, how will our nation respond to what happened to one of its finest and brightest young men who committed himself to serving our nation, when this is totally avoidable and probably the most avoidable kind of accident or crime or whatever you want to call it, that we have in America, the crime of drunk driving.
That is more important to us than the viewpoint of who's at fault and why the prosecution brought this case. We lost a son and this case and this verdict won't change that fact. We'll still have lost our son.
CHUNG: Thank you so much for being with us, to all of the Elliots, and best wishes to you.
W. ELLIOTT: Thank you very much, Connie.
CHUNG: Still ahead, after their first night apart, how are the conjoined twins doing? We'll check in with the doctors. Stay with us.
ANNOUNCER: Next, the final moments of the Westerfield trial. The parents of a young victim demand justice. CONNIE CHUNG TONIGHT will be right back.
(COMMERCIAL BREAK)
CHUNG: In San Diego tonight this is the moment it's all come down to. The lawyers have said virtually everything there is to say. The evidence is all there, arguing for and against the guilt of David Westerfield.
Joining us now to put the final moments of the trial in focus, CNN's Rusty Dornin -- Rusty.
RUSTY DORNIN, CNN CORRESPONDENT: Well, Connie, the defense finished up its argument just a couple of hours ago. Now it's up to the prosecutors to blow a hole in those arguments, which they will do in rebuttal. It began this afternoon. He'll pick it up tomorrow morning. Then it will go to the jury for deliberations. Now, the thing that's always fascinating in cases like this is just watching the different styles of these attorneys. The prosecutor, Jeff Dusek, he's very methodical.
He's led the jury through chronological order, every detail, every but of evidence, every bit of DNA, of course to persuade them that David Westerfield did indeed kill Danielle van Dam.
On the other hand you have the defense attorney, Stephen Feldman, he's very emotional, he's very flamboyant. He bounces around a lot. But he did in his closing arguments bring up several times the lifestyles of the van Dams, saying that the spouse swapping and the pot smoking, what it did was open up their lives, their everyday lifestyle, opened up their lives to people being able to come in and have access to their house.
Sorry, we're having a fire engine obviously go by right now.
Anyway, so Feldman, what he needs to do is plant the seed to the jury of reasonable doubt.
(BEGIN VIDEOTAPE)
(voice-over): There may be plenty of evidence in the case of Danielle van Dam's kidnapping and murder pointing to the defendant, David Westerfield, even DNA evidence, but the defense said it over and over again in closing arguments: It's all circumstantial.
That's why, says Steven Feldman, that the jury should acquit his client.
FELDMAN: There's too many holes. There's no smoking gun. There's too many explanations. They can't put it together.
DORNIN: Prosecutor Jeff Dusek put together his theory of what might have happened on the night the 7-year-old girl was kidnapped.
David Westerfield came home from a bar, and in pursuit of a sexual fantasy got into Danielle van Dam's house, hid in a closet, then kidnapped the girl.
DUSEK: The bottom line is, though, he did it. He got away with it.
Somebody broke into that house and got her. Somebody got her out without her screaming, yelling, alerting her family. Somebody got her out without the dog doing anything.
DORNIN: That's impossible, says the defense. David Westerfield could not have done it because he left absolutely nothing behind in the van Dam house.
FELDMAN: Did he gag her? There's no gags. Does he tie her up can? There's no rope.
Does he kill her? There's no evidence of that.
DORNIN: The prosecution argues the little girl's hair was found in his house and motor home. Danielle's blood was also on his jacket and in the motor home.
DUSEK: You look at the evidence that we have here that shows that he did it, and it will be his conduct, his own words, today's science and your common sense. Combine all of those, and the conclusion is inescapable.
DORNIN: A conclusion, the defense says, is open to interpretation.
FELDMAN: But it's the same problem. There's two reasonable interpretations, according to the experts. Ma'am, could it have come from the same place? Yes, it could.
Could it not have come from the same place? Well, that's true, too.
If there are two reasonable interpretations of the evidence, here it is again, the case is entirely circumstantial.
DORNIN: Circumstantial evidence that the prosecution hopes will leave the jury without a reasonable doubt.
Rusty Dornin, CNN, San Diego, California.
(END VIDEOTAPE)
CHUNG: Joining me now, also from San Diego, Lisa Bloom, the anchor of Court TV's "Closing Arguments."
Lisa, thanks for joining us.
LISA BLOOM, COURT TV ANCHOR: Thank you.
CHUNG: All right. Tell me, we've been told that David Westerfield has been quite stoic during the trial and the van Dams have been understandably emotional.
Can you give us a sense of what it has been like in the courtroom?
BLOOM: Well, David Westerfield has a little bit of a twitch, Connie. You can see it on television, and you can certainly see it when you're sitting next to him in the courtroom, as I was today and yesterday. It's a very mild little movement of the head.
But what you can't see on television is his hands. His hands tend to move. He tends to rub his fingers. I think showing a little bit of nervousness.
But overall he looks like's out of it. He looks a little zoned out during a lot of the arguments; either just not present, not physically there, or just trying to be as stoic as possible.
On the other hand, the van Dams, I think, have held up very well under tremendous pressure both during the time that their daughter was missing, after she was found to have been murdered -- and of course, there's a requisite siren again. Throughout this trial they have really managed to hold up as best they can.
CHUNG: Do you think that the jury is responding to the emotion or the lack of emotion?
BLOOM: I think, Connie, they have to be.
Jeff Dusek, at the beginning of his closing argument, began with five words that I thought were so powerful: "In his bed, her hair."
He has a quiet anger about him that comes across very powerfully in the courtroom.
Compare that to the defense attorney, who flits around the courtroom like one of the blowflies that his experts depend upon so strongly. He can't find the exhibits, he can't find the words. He doesn't recall the evidence. He corrects himself when he comes back after a break for a misstatement.
But worse than all of that is Judge Mudd, from the bench, in the presence of the jury, correcting the defense attorney, saying that he's wrong on various points of evidence.
That's got to make a big impression on this jury.
CHUNG: Well there's one thing that the defense attorney did, and is suggest to the jurors that they must make up their own minds.
Do you think he's trying to plant in their minds the whole idea of a hung jury?
BLOOM: Well, I think it's even stronger than that. I think he's really made a brazen attempt to say to the jury that he wants a hung jury. And he's hoping that one or two jurors will hold out.
He said to them that it has to be a unanimous verdict, but if it's not, that's OK. That's as bald-faced a plea for a hung jury as I've ever seen watching a of trials on Court TV.
It was so strong that the prosecutor, his rebuttal closing argument addressed it head on and said, this is not a case that deserves a hung jury. The jurors are all to get together and deliberate. That's why we have a jury room and deliberations, not separate polling places where everyone just goes and casts their ballots. They should keep an open mind, and they should work together.
CHUNG: And Lisa, in the last minute we have, do you think these jurors, who were not sequestered, might be influenced by the Samantha Runnion murder, bearing in mind that this is a little girl who may very well have been killed by a man who was acquitted in a previous case?
BLOOM: It's an excellent question, and the defense has asked for sequestration based on that, based on President Bush mentioning Danielle van Dam by name yesterday in a press conference.
But this is a community of conservative people; rock-solid people, Connie. It's San Diego's O.J. case. But the people I've spoken to here say they're going to let the jury decide. I don't see anybody trying to influence this jury.
You know, in L.A. it was a very different story during O.J. I think this jury deserves respect and deserves the chance to decide this case on their own.
CHUNG: All right, Lisa Bloom, thank you so much for your insight. We appreciate it.
BLOOM: Thank you.
CHUNG: And still ahead: She gave birth to a son. One year later she was told it was someone else's baby.
Stay with us for the story.
(COMMERCIAL BREAK)
CHUNG: Right now we're going to look at an ongoing legal battle that could change the law and reshape the way we think of parenthood. The battle is a three-way fight pitting a woman against the fertility clinic that gave her the wrong embryo and against the family that now wants the baby she gave birth to.
(BEGIN VIDEOTAPE)
CHUNG (voice-over): The story begins at this fertile did clinic in San Francisco. A woman we'll call Jane Doe wanted to have a baby. She went to the clinic for a procedure called in vitro fertilization in which a fertilized egg is implanted in a woman's uterus. Jane Doe was single and infertile. She carefully selected the sperm and egg from anonymous donors to create an embryo that would give her the child of her dreams. The procedure succeeded, resulting last year in the birth of a baby boy. She was thrilled, but about a year later, that thrill turned to horror when she found out that the clinic had implanted the wrong embryo. The one she received belonged to another couple, created from that husband's sperm and a donor egg.
SEAN TIPTON, AMERICAN SOCIETY FOR REPRODUCTIVE MEDICINE: I don't think it's worthwhile to speculate as to how it could have happened other than you have to keep in mind that there are a fair number of patients and you're dealing with some very small amounts of material.
CHUNG: The couple has filed a lawsuit for custody of the 16- month-old boy. Jane Doe is not only fighting that, she's filed a suit charging the clinic's doctor and scientists with malpractice and fraud.
(END VIDEOTAPE)
CHUNG: The lawyers on both sides of the custody battle declined our invitation to appear on our program, as did the clinic's lawyer. But we are joined from San Francisco by Nancy Hersh, who's representing Jane Doe in her lawsuit against the clinic and against the scientists who created the embryo. And we have the scientists' attorney, Mahmoud Abouzeid, here in New York and CNN's legal analyst, Jeffrey Toobin.
Thank you all for joining us tonight. Mrs. Hersh, this must have been so traumatic for your client when she found out. How did she find out?
NANCY HERSH, ATTORNEY FOR JANE DOE IN EMBRYO SUIT: She found out that something was wrong when she was contacted by the medical board, and the investigator for the medical board of the state of California began to ask her questions about such things as had she ever had a miscarriage, had she had a baby. At which time, she said, "Why are you asking me these questions?" And he said, something like, "I can't tell you." And she said, "I need a letter from you before I'll talk to you further." She then got off the phone with him and called Dr. Katz, who had been the implanting physician, and said, "Is there a problem? Am I going to lose my baby?" He said -- his response was "I'll call you back."
CHUNG: So then he and the scientist came to see her. Was it the next day?
HERSH: A few days later.
CHUNG: OK, and they told her.
HERSH: They told her what had happened and they told her that the reason they were telling her at that time is a that an anonymous person had written a letter to the medical board informing them -- informing the board of the facts.
CHUNG: And that's why the board is investigating.
HERSH: That's right.
CHUNG: Now, she -- her doctor recommended to her that she meet with the couple in question. She did do that and what happened after that?
HERSH: Very shortly after that, the couple in question then served her with papers seeking custody of the baby.
CHUNG: And then just a quick yes or no. Was she told in advance that there might very well be some kind of mix-up, just as warning when she first went to the clinic?
HERSH: Oh, absolutely not.
CHUNG: All right, Jeffrey Toobin, who would have a sense of custody -- or how could I put it -- a bigger claim maybe to the child, the couple or this woman?
JEFFREY TOOBIN, CNN LEGAL ANALYST: Just an excruciatingly difficult question. I mean I talked to some experts, tried to figure it out. The closest thing you have to do, I think, is draw an analogy to something else because there is no precedent for a case like this. The way I think of it is, the abortion decisions. The abortion decisions basically say that the woman who carries the child, who is going to give birth to the child, Nancy Hersh's client, that's the person who has the rights not the father.
There have been cases about whether the father can veto an abortion. So I think in the case where you have to put the two against each other, it would be Jane Doe because she gave birth to the child. But you know, I don't want to pretend like that's an obvious answer. But that's how I think about it.
CHUNG: All right, we're going to take the next issue then because that's the custody issue. Mr. Abouzeid, your client was the scientist. He put the embryo together with sperm and egg. He made a mistake, correct?
MAHMOUD ABOUZEID, ATTORNEY FOR SCIENTIST IN EMBRYO SUIT: Well, a mistake was made, Connie. It remains to seen who is responsible for that mistake.
CHUNG: But he did -- he's the scientist. He's the one in the laboratory who connects the sperm with the egg, who actually does the act, correct?
ABOUZEID: Well, it's no question that that's the case. But please understand that he is not the only one who is involved in this process of delivering that to the physician.
CHUNG: All right. When he realized that there was a mistake, he told the doctor, correct?
ABOUZEID: He did.
CHUNG: And then what happened?
ABOUZEID: Well, again, I can't tell you beyond that. You know, this case has just started, Connie. The lawsuit was just filed.
CHUNG: Well, then let me ask you this then. The doctor, in fact, did not tell Jane Doe. Did the scientist know that the doctor was not going to tell Jane Doe?
ABOUZEID: Again, I can't comment on that, but I -- let me make sure you understand that the relationship of patient and physician is one between the doctor and Jane Doe. It has nothing to do with my client, the scientist.
CHUNG: I understand what you're saying. However, if your scientist, your client, knows that the doctor is not going to tell Jane Doe, doesn't he have an ethical responsibility to say, "I have information that is really important to her?"
ABOUZEID: Well, again, I think, you know, we're entering into an area of the law that is absolutely novel. It's absolutely new and there's no question that physician is the captain of the ship, if you will. He's the one who has the relationship with the patient. As a matter, you need to understand that in almost all instances, the scientist doesn't even know who the patient is.
CHUNG: Ah, but sometimes they do. Sometimes, indeed because of the proximity of the laboratory, and because of where the doctor is and where the patients are, they do indeed meet each other. But let many ask Mr. Toobin.
Jeffrey, does this lawyer, who's representing the scientist, have a point, a case?
TOOBIN: I -- you know, I -- the fact needs to be developed, but I think, you know, the custody issue is a hard question. The negligence question is not a particularly hard question.
CHUNG: That's right. Just to point out that her case, Jane Doe's case, is accusing the scientist and the doctor of negligence and fraud.
TOOBIN: Right. I don't -- fraud means intentional misconduct, and I don't -- haven't seen any evidence of intentional misconduct.
CHUNG: Except the doctor didn't tell her, intentionally did not tell her.
TOOBIN: I think that fact -- it seems to be somewhat in dispute. But in terms of negligence, my goodness, this seems like the very definition of negligence. The one thing you would expect when you went to a clinic like this is that you would not have this kind of mix-up, this exact problem. So, I -- you know, I think Nancy Hersh, the attorney, her biggest problem is going to be finding an armored car big enough for all the money she's going to get in this case because I just think it's a big -- I mean this is -- I mean a jury would just react horribly to what went on here.
CHUNG: But in the law, is there a high bar for proving negligence?
TOOBIN: Not really. I mean negligence is actually a fairly common sense definition, reasonable care. Now, experts may differ about what's reasonable in a given circumstance, but here, I mean, it's hard for me to imagine anyone can say it's reasonable to be given the wrong embryo. And so that's why I think in terms of negligence it's a very strong case.
CHUNG: All right, Nancy Hersh, if the doctor and maybe the scientist, had gone to her, Jane Doe, in the beginning, early on, and told her about the -- quote, unquote -- "mistake," would she not have hired you and filed this lawsuit?
HERSH: It wouldn't have been this lawsuit.
CHUNG: Seriously?
HERSH: And furthermore, they would have to have gone -- they should have gone to the other couple, gone to her, told them all what had happened and given them advice and recommendations about how the situation could be resolved.
CHUNG: Well, let me take it one step further.
HERSH: OK.
CHUNG: Are you saying that maybe Jane Doe then would have aborted the pregnancy or -- you know wouldn't they still end up with -- in this quagmire?
HERSH: No, they wouldn't end up in this quagmire. It would have been resolved either by some agreement between Jane Doe and the couple that they could live with this situation and live separate lives and some written agreement that would establish the parameters of the relationship, or if that couldn't happen, then keep in mind that on the day in question, on the day that the embryos were put into her uterus, the scientists and the doctor knew they had made a mistake on that very day, before anything had taken place. There are medications that could have resolved the problem and she could then have been implanted with her own embryos, the embryos of her choice. CHUNG: But can you imagine the couple agreeing to the -- well, what can I -- a termination of a pregnancy that involved their embryo?
HERSH: Well, I don't think they would have had to have agreed to the termination of the pregnancy.
CHUNG: Why not? It's their embryo.
HERSH: It was her pregnant.
TOOBIN: But, I think that's right. I think Nancy Hersh is right there. I think no one can force Jane Doe to have an abortion, even though it's someone else's embryo. The decision to terminate a pregnancy -- remember earlier this week that was that case in Pennsylvania where the father tried to force this woman to have an abortion and the courts threw it out immediately. I think it's clear that once something is implanted in a woman, however, it's done, through science or through nature, it's her decision.
What I don't understand and if I can just ask Nancy Hersh this -- why can't there be an agreement now? Why does this have to -- isn't it better for the child to sort of this out rather than have this lawsuit, as interesting as it is to all of us as lawyers?
HERSH: Well, you know, let me say first that I'm not involved in the custody part of this case in the -- I'm not a family law expert. What is in the best interest of the child -- reasonable people can differ about what's in the best interest of the child. This child has been with this mother since he was born. They have never slept apart. This is his mother. The other couple wants custody of this child. They want this child to be their own child.
What do you think is in the best interest of the child in that situation? I believe that the best interest of the child would be served by having him remain with the person that he, at a year and a half, thinks and believes is his mother.
TOOBIN: It's hard to believe though, that a long, bitter court battle -- I mean, there are -- people work out joint custody arrangements all the time. Is that so out of the question in this case?
HERSH: Again, you're putting questions to me that I don't feel well qualified to answer. So when I give you opinions, they're really the opinions of a layperson as opposed to an expert. I don't believe it's in...
CHUNG: OK.
HERSH: OK, yes.
CHUNG: Well you know what? Why don't we leave it at that?
HERSH: Yes.
CHUNG: We did actually invite all the parties... TOOBIN: Right.
CHUNG: ... you know, who are involved in the custody case to join us tonight.
TOOBIN: Boy, is that a hard one.
CHUNG: I know.
TOOBIN: It's just -- I don't even know...
CHUNG: Mr. Abouzeid, thank you for being with us as well. We appreciate it.
ABOUZEID: Connie, I do just want to make one thing clear...
CHUNG: Yes?
ABOUZEID: ... as far as negligence and causation and the net results of things line that. Please understand that it's our client's position and it is that he did inform the person that he needed to inform right at the time when something could have been done about it. Please understand that a scientist is not involved in the implantation process.
CHUNG: I understand. And it's the process, but, you know, we could also talk about the right thing to do, and this doesn't certainly involve a lawsuit. But it still involves ethical issues. But thank you so much for being with us. We appreciate it -- and Nancy Hersh and Jeffrey Toobin.
HERSH: Thank you.
TOOBIN: Thank you.
CHUNG: We will be back in just a moment.
ANNOUNCER: Next, the doctor behind a lifesaving separation surgery with details of the dramatic operation. CONNIE CHUNG TONIGHT will return in a moment.
(COMMERCIAL BREAK)
ANNOUNCER: Mary Beth Whitehead already had two children of their own when she decided to become a surrogate mother in 1985. She signed a contract to be impregnated with William Stern's sperm and give up her parental rights to Stern and his wife, Elizabeth, who's multiple sclerosis left her unable to bear children. But when she gave berth birth, she decided to keep the girl she called Sara and fled to Florida to escape her contract with the Sterns. The case of Baby M became first to put a surrogacy contract to the test. Ultimately, a court terminated Whitehead's parental rights.
(BEGIN VIDEO CLIP)
MARY BETH WHITEHEAD, BABY M'S BIOLOGICAL MOTHER: There will never be a termination of my love I had for Sara, nor will there ever be a termination due me that Sara has for her real mother. We love each other very much and we will not accept this decision of one judge that's the final termination of the whole society that should be permanently separated.
(END VIDEO CLIP)
ANNOUNCER: What became of Whitehead after she lost custody and what ever happened to Baby M? The answers, when we return.
(COMMERCIAL BREAK)
ANNOUNCER: Whatever happened to Baby M and biological mother, Mary Beth Whitehead? Baby M was named Melissa by the parents, but as a teenager, she's gone by the nickname, Sassy. Her parents release no pictures or information, but they have been ordered to give visitation rights to her biological mother. Whitehead, now married and going by the name Mary Gould, can see Sassy twice a week, every other weekend and two weeks a year. She lobbies for laws against surrogacy and continues to argue that Sassy should be with her, now, claiming that it's unfair for Sassy to have to watch her adoptive mother, Elizabeth's worsening health due to multiple sclerosis.
CHUNG: After a year of literally being inseparable, two Guatemalan twin girls born joined at the head spent their first night on their own last night after yesterday's successful operation to separate them. And today, their father spoke publicly for first time with the help of a translator.
(BEGIN VIDEO CLIP)
TRANSLATOR: ... when they were attached. So he's just happy that they made it through the surgery and that everything is going well so far.
(END VIDEO CLIP)
CHUNG: Now, tonight, Las Maritas, the Little Marias, as they're called, remain under sedation and listed in critical, but stable condition. We wanted to get an update so we decided to talk to the UCLA Medical Center's director, Dr. Michael Karpf.
Thank you for being with us, sir.
DR. MICHAEL KARPF, DIRECTOR, UCLA MEDICAL CENTER: Good evening, Connie.
CHUNG: Dr. Karpf, you know, every time I see the videotape of the girls being moved from the operating table, I believe, probably to a gurney, they're under such heavy sedation I get anxious and worried about them. So tell us, how are the girls?
KARPF: Well, they're doing remarkably well. We're really very pleased. We've moved from second-to-second to minute-to-minute, and new we're going hour-by-hour. But we couldn't have hoped for a better, faster recovery to date. CHUNG: They're still on ventilators, right?
KARPF: Yes, they are still on ventilators, and maybe so for a while still.
CHUNG: Are they conscious? No?
KARPF: No, they're paralyzed. In order to -- to be able to keep them comfortable on a ventilator, you really need to paralyze them. And they're now -- the doctors up in the pediatric incentive care unit are now getting ready to start weaning them off the paralytic gauges. Once that happens and once they're breathing on their own and if everything is OK, they'll get extubated. The breathing tube will be taken out hopefully in the next day or so.
CHUNG: How are they -- be getting their fluids and nutrition? Is it feeding tube and IV?
KARPF: They're getting their fluids through IVs, not feeding tubes. And hopefully, that -- they'll be awake and active enough that we'll be able to give them nutrition by mouth some time in the very near future.
CHUNG: But in the meantime, they are simply given fluids through an IV?
KARPF: Yes.
CHUNG: OK. They have -- have they opened their eyes yet?
KARPF: No, I don't think they've opened their eyes. As I said, they're paralyzed in order to be able to keep them comfortable with the breathing tube.
CHUNG: Now, the father was really so interesting. He said they looked different to him because they're not connected. And he hardly recognized them certainly because of the gauze on their heads.
KARPF: Right.
CHUNG: How are the parents doing?
KARPF: Yes, they -- the parents are doing really very well. This has been a very difficult ordeal for them. They're so far away from home, so much is going on, but they have been doing very well, very appreciative of everything we're trying to do for these lovely, two young ladies. And so, I think as -- we couldn't have asked for more from the parents.
CHUNG: When will the doctors know if there might be any brain injuries or any brain damage?
KARPF: I think it's going to take a little bit of time, Connie. The first thing we need to do is allow them to wake up, get off of the paralytic, see how they move around. And they were under anesthesia for so long it's going to take a while before we can have a real good assessment of neurological function, and particularly for fine neurological -- assessment of fine neurological function. So I think we've got to be patient. We've got to take our wins and victories and kind of make sure that we just stay patient with their progress.
CHUNG: Now, I read somewhere that early on, the girls were able to move their hands and their feet and they coughed and that must have been right in the operating room at one point? So that was a good sign?
KARPF: Yes, it was a -- oh, absolutely. It was right after surgery. They were moving their extremities, and then they needed on the paralyzed, to keep them on the respirator. So as Dr. Jorge Lazareff said, I mean, everything at the moment, looks real good and we just have to keep our fingers crossed. And you know, they'll be up and downs, but right now everything looks really good.
CHUNG: All right. We have run out of time, but I'm going to ask you a question that you may not know the answer to. But I read that the mother actually went through eight hours of labor, is that right? Do you know that to be true?
KARPF: I think it was actually almost eight days of labor, if I remember the story.
CHUNG: Oh, no, you're right. I meant to say eight days. Exactly.
KARPF: Yes, yes, so it was an extraordinary labor for this mother.
CHUNG: My goodness. And the father is very young. He's only 21.
KARPF: Yes.
CHUNG: All right, Dr. Karpf...
KARPF: ... very...
CHUNG: Go ahead.
KARPF: He's a very articulate 21-year-old. He's been a pleasure of working with the nurses.
CHUNG: All right, thank you so much, sir, appreciate it. We'll be right back.
KARPF: OK.
(COMMERCIAL BREAK)
CHUNG: Now, here's the windup for our story about the Carney, New Jersey little league team. Do you remember? There were several players on the squad, the Carney National All Starts, who contended that two of their coaches asked them to intentionally lose a game to their cross-town rival, the Carney American All Stars so that the Americans would have a better chance to advance eventually to the World Series. The coaches denied it. There was an investigation and the result, one of the coaches, Larry Davidson, has been suspended and demoted for what he's acknowledged were -- quote -- "inappropriate comments." No action was taken against Justin Raya (ph), the other coach. And as for the teams, the National All Stars did lose their game to the American All Stars, but the American squad was eliminated in its next game. Ball game over.
And that's our program. Our program is over, too. Tomorrow, you'll meet a mother who wanted her teen sons to stop smoking, so she put up flyers with their pictures asking people to call the police if they saw the boys smoking. "LARRY KING LIVE" is next and I thank you so much for joining us. For all of us at CNN, good night.
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