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CNN Live Saturday

Legal Roundtable

Aired January 24, 2004 - 14:22   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.


FREDRICKA WHITFIELD, CNN ANCHOR: Well, time now for our legal roundtable. Let's talk a little bit more about this Kobe Bryant case as well as some other high profile cases.
From Stamford, Connecticut, criminal defense attorney Mickey Sherman joins us, as well as from Boston, former prosecutor Wendy Murphy.

Good to see both of you.

(CROSSTALK)

WHITFIELD: All right. Wendy, let's begin with you.

Talk about messy. In this Kobe Bryant case, the defense says it obviously has some of the medical records that it was requesting. How should the court proceed? I mean, realistically, the court can't ask the defense to extract this information from its mind.

WENDY MURPHY, FMR. PROSECUTOR: Well, absolutely. But what the court can do and what it should do is forbid the defense to use it to support their request for a formal access.

Imean, in a sense, this kind of violation of the victim's right is a violation of her Fourth Amendment rights. It's a violation of her constitutional right of privacy, and there has to be some remedy. Even if you can't make the defense stop thinking about the information they had no right to gain access to, the court can and should take steps to prevents its gratuitous, ongoing harm. And including, frankly, that the media should stop telling us the stuff that's in those records that we know about the victim's trauma, and what she went through and what her medicine has been. No one should be talking about this stuff until a judge decides that it's relevant. And the fact that we have been talking about it because the defense had unlawful access is just a terrible, outrageous violation of an innocent person's right.

WHITFIELD: But, Mickey, realistically just might there be a slip of the tongue from Pam Mackey or anybody else, just as there was when we heard the alleged victims name several times during the first court proceedings?

MICKEY SHERMAN, CRIMINAL DEFENSE ATTORNEY: No.

Don't forget, they've done nothing wrong here. As a matter of fact -- not that we want a lot credit for things we're supposed to do, as the Chris Rock routine goes -- but what does it say about the defense, that they've had these reports and we have not seen them? We're always blamed -- the defense is always blamed for leaking all the damaging information about the victim out there.

That hasn't happened. What they've done -- they got the reports, not through their own machinations, but because the hospital sent them out of stupidity. But what have they done? They've gone to the court and say, We have them, but we just want to put them in trial. Now would you please look at them yourself and see if it's relevant? And you can ask no more and certainly no less from the defense attorneys. They've done the right thing.

(CROSSTALK)

WHITFIELD: Go ahead, Wendy.

MURPHY: Mickey is forgetting that the entire country has heard the details of those records.

SHERMAN: Have you seen those records? I haven't seen those records.

(CROSSTALK)

WHITFIELD: I wonder -- I wonder, Mickey and Wendy, if you can have one without the other. The defense has requested both the sexual history as well as the medical history, and if this is some of the medical history -- you know, can the defense proceed with one without the other?

SHERMAN: I believe you can have one without the other. It's not a package deal. The mental history they want in there to see if it's relevant to whether or not she's telling the truth, whether there's attention-seeking behavior, maybe some sort of motive for crying out rape. I don't know if that's the case but that's the idea.

And some of the other evidence, the medical evidence as to whether or not she's capable of telling the truth. (UNINTELLIGIBLE)

WHITFIELD: Let's move on to another case, the Martha Stewart case. It is possible, we're hearing, that a jury -- a 12-member jury -- could be seated on Monday.

Wendy, there is no doubt that the attorneys are not trying to find jurors who know nothing about the case. It's just not possible in New York City. So, what, in fact do they want in this seated jury panel?

MURPHY: Well, you know, you're absolutely right. There are no jurors who know nothing. And frankly, if there were such jurors, I'm not sure we would want them, because that means they live under rocks some place.

I think what the defense wants in this case is a set of jurors who have big feelings about fairness and justice because the evidence is probably pretty strong against Martha Stewart. So what the defense wants is jurors who are going to say to themselves, This is relatively trivial compared to large corporate scandals. This is relatively minor. And we think they're just going after Martha because they can get a lot of bang for the buck picking on a celebrity. They think this is going to send a message and clean up the corporate mess. But we think this is an unfair way to go after a woman who has done relatively little harm compared to other -- other heads of other corporations.

That -- in a sense, you're looking for a jury that might nullify the case and punish the prosecution for using Martha Stewart as a whipping girl.

WHITFIELD: And Mickey, a lot has been made all week about Martha Stewart's demeanor, her style going into court. How much do the jurors -- potential jurors really look at of all that?

SHERMAN: They look at it extremely closely. They judge every move she makes, every whisper, whether or not she is arrogant, whether or not she is mocking them, whether or not she is, you know, acting guilty, which sounds and is stupid. But they look at the in court and out of court conduct so closely, and not necessarily what she says or what other people on the stand. She is on trial the moment she steps out of that limo, which is also an interesting thing if she comes in a limo or and SUV.

And as much as it kills me, I have to agree with Wendy. We do want those jurors who say, you know, she did something wrong, but she ain't as bad as the real big guys.

WHITFIELD: All right. The Scott Peterson case -- let's the move on to the West Coast now. It's been moved to San Mateo, just about 90 miles away from Modesto.

Wendy, is this a potential blow to the defense? They didn't get as far away potentially as they wanted to.

MURPHY: You know, there's no question. I think that this is a bit of a pyrrhic victory for Mark Geragos. You know, he definitely wanted out of Modesto, out of Stanislaus County, but he wanted into L.A. County. And the absolute worse place he could have landed in terms of the choices that were available is San Mateo, because it is the wealthiest community, it's not that far from Stanislaus County, and maybe more importantly, it's a very educated community. Forty percent of the population has bachelor's degrees or higher compared to only 14 percent in Stanislaus County. And in a case like this, where we know Mark Geragos wants to sell the jury a bag of goods, do his little dog-and-pony show and persuade the jurors that either there's a Satanic cult or the baby died before or was born it went into the water, which is all really silly nonsense -- you can't sell that theory to an intelligent jury, and he has a very intelligent jury pool.

WHITFIELD: Well, Mickey, is this case borderline absurd now with all of these various changes whether it's, you know, the prosecution not liking the judge, the defense not liking the change of venue et cetera?

SHERMAN: Well, first, Geragos doesn't have to sell anything. He can sit there on his thumbs. It's the state that's got to prove the case.

And what we've seen so far, it's not a great case. Now moving did out of Modesto is great, but it's certainly not a home run. I guess it could have been better. But as I've said, it's maybe you're getting a better seat on the Titanic.

Ithink the greater issue is them knocking out the judge. I think that speaks volumes for the amount of no confidence the state seems to have in their case, that they would strike a 30-year-old veteran on the judge, who's deemed to be compassionate and a seasoned veteran.

(CROSSTALK)

MURPHY: No, you know, that's not -- Mickey, that's not fair because this judge, in a very recent case, overturned a death penalty in a very serious arson murder case. And that's the prosecutor's prerogative to say they want the ultimate penalty in California. This is a serious murder.

WHITFIELD: All right. Wendy Murphy and Mickey Sherman, sorry, we're out of time. But thanks very much.

MURPHY: Thank you, Fredricka.

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 January 24, 2004 - 14:22   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
FREDRICKA WHITFIELD, CNN ANCHOR: Well, time now for our legal roundtable. Let's talk a little bit more about this Kobe Bryant case as well as some other high profile cases.
From Stamford, Connecticut, criminal defense attorney Mickey Sherman joins us, as well as from Boston, former prosecutor Wendy Murphy.

Good to see both of you.

(CROSSTALK)

WHITFIELD: All right. Wendy, let's begin with you.

Talk about messy. In this Kobe Bryant case, the defense says it obviously has some of the medical records that it was requesting. How should the court proceed? I mean, realistically, the court can't ask the defense to extract this information from its mind.

WENDY MURPHY, FMR. PROSECUTOR: Well, absolutely. But what the court can do and what it should do is forbid the defense to use it to support their request for a formal access.

Imean, in a sense, this kind of violation of the victim's right is a violation of her Fourth Amendment rights. It's a violation of her constitutional right of privacy, and there has to be some remedy. Even if you can't make the defense stop thinking about the information they had no right to gain access to, the court can and should take steps to prevents its gratuitous, ongoing harm. And including, frankly, that the media should stop telling us the stuff that's in those records that we know about the victim's trauma, and what she went through and what her medicine has been. No one should be talking about this stuff until a judge decides that it's relevant. And the fact that we have been talking about it because the defense had unlawful access is just a terrible, outrageous violation of an innocent person's right.

WHITFIELD: But, Mickey, realistically just might there be a slip of the tongue from Pam Mackey or anybody else, just as there was when we heard the alleged victims name several times during the first court proceedings?

MICKEY SHERMAN, CRIMINAL DEFENSE ATTORNEY: No.

Don't forget, they've done nothing wrong here. As a matter of fact -- not that we want a lot credit for things we're supposed to do, as the Chris Rock routine goes -- but what does it say about the defense, that they've had these reports and we have not seen them? We're always blamed -- the defense is always blamed for leaking all the damaging information about the victim out there.

That hasn't happened. What they've done -- they got the reports, not through their own machinations, but because the hospital sent them out of stupidity. But what have they done? They've gone to the court and say, We have them, but we just want to put them in trial. Now would you please look at them yourself and see if it's relevant? And you can ask no more and certainly no less from the defense attorneys. They've done the right thing.

(CROSSTALK)

WHITFIELD: Go ahead, Wendy.

MURPHY: Mickey is forgetting that the entire country has heard the details of those records.

SHERMAN: Have you seen those records? I haven't seen those records.

(CROSSTALK)

WHITFIELD: I wonder -- I wonder, Mickey and Wendy, if you can have one without the other. The defense has requested both the sexual history as well as the medical history, and if this is some of the medical history -- you know, can the defense proceed with one without the other?

SHERMAN: I believe you can have one without the other. It's not a package deal. The mental history they want in there to see if it's relevant to whether or not she's telling the truth, whether there's attention-seeking behavior, maybe some sort of motive for crying out rape. I don't know if that's the case but that's the idea.

And some of the other evidence, the medical evidence as to whether or not she's capable of telling the truth. (UNINTELLIGIBLE)

WHITFIELD: Let's move on to another case, the Martha Stewart case. It is possible, we're hearing, that a jury -- a 12-member jury -- could be seated on Monday.

Wendy, there is no doubt that the attorneys are not trying to find jurors who know nothing about the case. It's just not possible in New York City. So, what, in fact do they want in this seated jury panel?

MURPHY: Well, you know, you're absolutely right. There are no jurors who know nothing. And frankly, if there were such jurors, I'm not sure we would want them, because that means they live under rocks some place.

I think what the defense wants in this case is a set of jurors who have big feelings about fairness and justice because the evidence is probably pretty strong against Martha Stewart. So what the defense wants is jurors who are going to say to themselves, This is relatively trivial compared to large corporate scandals. This is relatively minor. And we think they're just going after Martha because they can get a lot of bang for the buck picking on a celebrity. They think this is going to send a message and clean up the corporate mess. But we think this is an unfair way to go after a woman who has done relatively little harm compared to other -- other heads of other corporations.

That -- in a sense, you're looking for a jury that might nullify the case and punish the prosecution for using Martha Stewart as a whipping girl.

WHITFIELD: And Mickey, a lot has been made all week about Martha Stewart's demeanor, her style going into court. How much do the jurors -- potential jurors really look at of all that?

SHERMAN: They look at it extremely closely. They judge every move she makes, every whisper, whether or not she is arrogant, whether or not she is mocking them, whether or not she is, you know, acting guilty, which sounds and is stupid. But they look at the in court and out of court conduct so closely, and not necessarily what she says or what other people on the stand. She is on trial the moment she steps out of that limo, which is also an interesting thing if she comes in a limo or and SUV.

And as much as it kills me, I have to agree with Wendy. We do want those jurors who say, you know, she did something wrong, but she ain't as bad as the real big guys.

WHITFIELD: All right. The Scott Peterson case -- let's the move on to the West Coast now. It's been moved to San Mateo, just about 90 miles away from Modesto.

Wendy, is this a potential blow to the defense? They didn't get as far away potentially as they wanted to.

MURPHY: You know, there's no question. I think that this is a bit of a pyrrhic victory for Mark Geragos. You know, he definitely wanted out of Modesto, out of Stanislaus County, but he wanted into L.A. County. And the absolute worse place he could have landed in terms of the choices that were available is San Mateo, because it is the wealthiest community, it's not that far from Stanislaus County, and maybe more importantly, it's a very educated community. Forty percent of the population has bachelor's degrees or higher compared to only 14 percent in Stanislaus County. And in a case like this, where we know Mark Geragos wants to sell the jury a bag of goods, do his little dog-and-pony show and persuade the jurors that either there's a Satanic cult or the baby died before or was born it went into the water, which is all really silly nonsense -- you can't sell that theory to an intelligent jury, and he has a very intelligent jury pool.

WHITFIELD: Well, Mickey, is this case borderline absurd now with all of these various changes whether it's, you know, the prosecution not liking the judge, the defense not liking the change of venue et cetera?

SHERMAN: Well, first, Geragos doesn't have to sell anything. He can sit there on his thumbs. It's the state that's got to prove the case.

And what we've seen so far, it's not a great case. Now moving did out of Modesto is great, but it's certainly not a home run. I guess it could have been better. But as I've said, it's maybe you're getting a better seat on the Titanic.

Ithink the greater issue is them knocking out the judge. I think that speaks volumes for the amount of no confidence the state seems to have in their case, that they would strike a 30-year-old veteran on the judge, who's deemed to be compassionate and a seasoned veteran.

(CROSSTALK)

MURPHY: No, you know, that's not -- Mickey, that's not fair because this judge, in a very recent case, overturned a death penalty in a very serious arson murder case. And that's the prosecutor's prerogative to say they want the ultimate penalty in California. This is a serious murder.

WHITFIELD: All right. Wendy Murphy and Mickey Sherman, sorry, we're out of time. But thanks very much.

MURPHY: Thank you, Fredricka.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com