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CNN Larry King Live
Panel of Experts Discusses Troubles Defense Attorneys Face
Aired July 29, 2002 - 21:00 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.
LARRY KING, HOST: Tonight: 5-year-old Samantha Runnion and the corn -- the court case, rather, that could have saved her life.
This attorney defended Samantha's alleged killer last year, got him off the hook, no prison time.
And now John Pozza faces death threats, personal doubts, questions from the public, and from our panel.
They are Marc Klaas, the father of the young murder victim Polly Klaas.
Renowned defense attorney Mark Geragos.
Court TV anchor and former prosecutor Nancy Grace.
And forensic psychiatrist Dr. John Deirmenjian.
All that and your calls next on LARRY KING LIVE.
Alejandro Avila's attorney a couple of years back was John Pozza. He's our first guest tonight, then the panel will join him.
He successfully defended Avila when he was accused of molesting the young daughter of his then-girlfriend and the daughter of his then-girlfriend's sister. That was over a period of months in 1999.
Also rolled in the case were criminal threat charges that Avila had accused of making threats to try to get his accusers to drop the charges. John Pozza defended him and got a not guilty verdict.
I think the jury was out a day-and-a-half.
JOHN POZZA, FORMER ATTORNEY FOR ALEJANDRO AVILA: Day-and-a-half, yes Larry.
KING: How did you get to defend him?
POZZA: Well Larry, I'm a private attorney. His family and friends actually came into my office and contacted me, saying that they had an innocent man who needed to be represented.
KING: Did you believe him? Did you -- first, did you ask him if he committed this crime? POZZA: No I did not, Larry.
KING: Some attorneys do, some don't.
POZZA: Right, and typically I don't talk to my clients about that aspect.
But in this particular case, certainly Mr. Avila said he was not guilty from the beginning when he entered his plea of not guilty to the court.
KING: Why don't you ask?
POZZA: Initially I don't want to know. At some point, certainly, if you have a client who advises you that he is guilty, then you are not allowed to put him up on the stand to testify to anything other than the fact...
KING: Because you can never permit a lie -- knowingly lying -- a lying individual to take place...
POZZA: That's correct. That would be suborning perjury, so we cannot do that.
So initially that is not my conversation with my client. What I like to do is advise my client that, let's wait and see what evidence the prosecution has.
KING: Now, the evidence against Mr. Avila at that time was all identity -- direct identification. It wasn't forensic, right?
POZZA: That is correct. There was never any forensic evidence presented.
KING: Two kids saying that he molested them?
POZZA: That's correct.
KING: And they testified how much after the time they were supposedly molested?
POZZA: I would say it had to be at least a good year before -- actually probably more than that, a year-and-a-half after the allegations.
KING: And Mr. Avila did not take the stand in his own defense?
POZZA: No he did not.
KING: And when you argued your summation to the jury was that there was no conclusive proof, and why believe young children. Was that, in essence, your argument?
POZZA: No. Basically my argument in closing to the jury was that on the surface the evidence presented by the prosecution definitely was damaging to Mr. Avila. But what I asked the jury to do was to listen closely to the witnesses, listen closely to the evidence and maybe look beyond the surface and see if there were inferences that could be taken to point to Mr. Avila's innocence.
KING: Erin Runnion, the mother, was on this show the other night. Did you see her?
POZZA: Yes I did.
KING: Let's show you this quick portion of that interview and get you to comment.
Watch.
(BEGIN VIDEO CLIP, July 25, 2002)
ERIN RUNNION, SAMANTHA'S MOTHER: No, I blame every juror who let him go. Every juror who sat on that trial and believed this man over those little girls, I will never understand. And that is why he was out, and that is why his sickness was allowed to do this.
KING: You got the details of that trial, then? And what..
RUNNION: I haven't even read the details, honestly.
KING: They didn't buy the statements of the kids?
RUNNION: No, apparently not. Apparently not. And in California, that's all you have to do is believe the kid.
(END VIDEO CLIP)
KING: Was that the case -- the jury did not believe the children?
POZZA: That was one of the issues. We were able to talk to the jurors after they had come back with the acquittal. They basically said there were a number of issues, but certainly the credibility of the children was put into question.
KING: Did you cross-examine the children?
POZZA: I did.
KING: Isn't that hard to do?
POZZA: Larry, it's very hard. I had never done that previously. This was the first trial I had taken with these type of charges. So it did -- I really was sensitive when I cross-examined the children not to be attacking, but to simply go through the details to find out what they were alleging occurred.
KING: And they alleged fondling; they alleged touching, kissing of private parts, right?
POZZA: Absolutely. Absolutely. What was interesting, though, was that these acts allegedly occurred in a very small apartment, often with other people in that apartment in the next room.
KING: Did you believe your client didn't do it at the time?
POZZA: You know -- at the time, Larry, I cannot say whether or not I believed his guilt or innocence. And really, I am not the finder of facts. So I try to remove myself from that and, basically, present the best defense I can for my client.
That's what I do for every client.
KING: When you learned he was arrested in the Runnion matter, first feelings?
POZZA: Quite frankly, my heart sank. I could not believe that this man had the capacity to do what he was arrested for.
KING: Did you at all think guilt for yourself?
POZZA: I don't think I felt guilt, but certainly I was just shocked that somehow a trial that had occurred a year-and-a-half ago would have anything to do with the allegations currently.
KING: What's happened to you since?
POZZA: Well, a lot of inner thinking on my part, Larry, in trying to separate my personal feelings from my professional feelings. My office has been inundated by e-mails and phone calls of people who can't believe that I allowed this to happen, and so forth.
KING: Have you been threatened?
POZZA: I have been threatened. And we have contacted law enforcement in regards to one threat in particular.
KING: Does that shock you?
POZZA: It does shock me, because certainly when I was trying the case, I never could envision that some day down the road I would be involved as I am today.
KING: If we were to have precognition, then anybody charged with a heinous crime would never have a defense, right?
POZZA: That's correct.
KING: No one would ever defend them.
POZZA: No one would ever defend them if you could look into the future, I guess. And certainly I have some concerns about that with juries now. I don't want a chilling effect, as far as...
(CROSSTALK)
KING: ... accused is?
POZZA: That you have to consider the future.
KING: People don't get mad when prosecutors prosecute an innocent person, get a guilty verdict and then find out two years later they didn't do it. You don't get mad at the prosecutor?
POZZA: I have not heard of that. And certainly you feel bad for a guy who's been sitting in prison when he's...
KING: If Mr. Avila, a year-and-a-half ago said that he did do this, then, one, you could not have allowed him to take the stand and deny it.
POZZA: That's correct.
KING: Would you have tried to get him a sentence? Would you have tried to work -- or is your role still to see that he gets a fair trial and defend him as best you can? Does it change your argument to the jurors?
POZZA: To answer those questions Larry, certainly if he had told me he was guilty, which he did not, as far as I'm concerned, I would still have to defend him. In every case that I have a client, the last thing -- the last resort is to go to trial. We try to resolve things.
KING: So you would have tried to get the best deal you could for him?
POZZA: Absolutely. Absolutely.
But if you have a person who is saying they're not guilty, and throughout the proceedings says they're not guilty, there is no disposition other than going to trial.
KING: What do you make of what this does to Avila's chances for what might be considered a fair trial?
POZZA: Well, I think he's going to have a very tough time, with comments made by law enforcement that they 100 percent know they have the man.
KING: The president said he's guilty.
POZZA: Yes. And that's very difficult to overcome because, certainly, presumption of innocence is something that we try to get out of the jury from the (UNINTELLIGIBLE) on.
KING: Would a change of venue matter?
POZZA: I don't -- I think it's going to be very difficult to get a fair and impartial jury for this man.
KING: But you lose no sleep, is what you're saying, over defending him? I don't want to put words in your mouth... POZZA: I can't say I haven't lost sleep, but certainly from a professional standpoint, this has allowed me to realize that I have a job; I have to do that job. And a lot of times personal -- I have to remove my personal feelings from that job.
KING: John Pozza's our guest. We'll be joined by our panel. They'll be all with us the rest of the way, and your phone calls will be included.
We'll be right back.
(COMMERCIAL BREAK)
KING: Welcome back to LARRY KING LIVE. Remaining with us for the rest of the program, John Pozza, the attorney who successfully defended Alejandro Avila in the -- Samantha Runnion's accused murderer, against child molestation charges. Joining us now from San Francisco is Marc Klaas. His 12-year-old daughter Polly was abducted from her home and murdered in 1993. A paroled felon named Richard Allen Davis was later convicted of the crime and sentenced to death. He's founder of the Klaas Kids Foundation, an advocate for child protection and crime victims' rights.
In Los Angeles is Mark Geragos, the noted defense attorney who's handled cases involving kidnapping charges and allegations of pedophilia. In New York is Nancy Grace, the anchor of "Trial Heat" on Court TV, former prosecutor. Case load included child abductions, sexual assaults and murders. And in Los Angeles is Dr. John Deirmenjian. He's a forensic psychiatrist, clinical faculty, UCLA School of Medicine.
Let's start with Marc Klaas. Do you have any arguments with John Pozza defending Mr. Avila?
MARC KLAAS, KLAAS KIDS FOUNDATION: Well, everybody needs a defense, but it seems to me you should ask your client if they're guilty or not. The thing I'd like to know is, when he was cross- examining the girls, how exactly did he cast doubt on their testimony, because obviously, that's what he did or the jury wouldn't have been able to come back with the not guilty plea. And, I tell you, because...
KING: Let him answer, let him answer, Marc. John?
POZZA: Mr. Klaas, basically what I did is I went through the details with the girls on the stand, and you go through the details to see if there are accuracies or inaccuracies there. And usually if you keep going through the details and things start changing, then you have some inaccuracies there that are very important.
KLAAS: Well, I asked that because I've seen Mark Geragos in the courtroom, and he is a brilliant attorney. I've seen him take on intelligent adults and just turn their testimony into mush, it seems like, and it's hard to tell if they're telling the truth or not sometimes.
KING: Mark Geragos, did John Pozza do the right thing for his client?
MARK GERAGOS, DEFENSE ATTORNEY: John Pozza did exactly what he was supposed to do for his client.
You know, I've heard this -- some of these questions, and there are things that as defense lawyers, you struggle with all the time. But you know, people ask you, you can't go to a cocktail party, and somebody finds out that you're a criminal defense lawyer, and they first question they ask you is, what do you do when your client tells you he's guilty? And my response is, and I don't mean it facetiously, I'm waiting for the first client to tell me he's guilty. I mean, generally, clients -- you can have the most compelling, overwhelming evidence that there is, but the clients don't want to admit it, or they're in denial, or whatever else. So you really don't get anywhere at that point.
(CROSSTALK)
KING: You can't let a knowing lie occur in the courtroom?
GERAGOS: Exactly. You can never put somebody on the stand.
KING: You know lies.
GERAGOS: Right. And most lawyers will tell you it's a rare case that gets better after the prosecution leaves. So generally, what you do is evaluate what the evidence is against your client, and you make a decision. You make a decision as to what you're going to do. But I'll tell you, you know, the only thing worse than potentially being in -- potentially, as I say -- being in a position that John's in is potentially being a situation where I've felt many times, where I go to trial with an innocent client. Because if you have an innocent client and that person's fate is in the jury's hands, and God forbid that you lose and somebody gets sentenced to prison, that's an awful, awful feeling.
KING: Before we get to Nancy, can you understand why the public is mad at John?
GERAGOS: Look, yes, because one of the things, you never see anybody running for public office and putting down as their job description "criminal defense lawyer." I mean, that's not something that political consultants...
KING: We don't like them until we need them?
GERAGOS: Exactly. Exactly. But people have to understand that from our standpoint, the criminal defense lawyers are the last bastion against the constitutional abuses.
KING: Nancy, do you agree that every person is entitled to a defense, and if so, what did John Pozza do wrong?
NANCY GRACE, COURT TV: Yes, I agree that everyone is entitled to a defense. But Larry, I think it's all in what you're willing to live with. What you're willing to look in the mirror at every morning. And I'm just stunned that everybody's sitting around acting like this is so nice and neat and clean and pristine, and it's not.
Marc Klaas asked earlier, how did you cross-examine those girls? Well, I've taken a look at how those girls were cross-examined. It was suggested by Mr. Pozza that they were coached, that they had been exposed to someone else, that they were only blaming Alejandro Avila because a friend's uncle had molested -- had been molesting another girl that they knew.
He painted these girls as liars to the jury. Now, when they're on cross-exam, you've got two little girls, about 9 years old, you've got an excellent defense attorney like Mr. Pozza cross-examining them, suggesting to them and to this jury that they were coached -- that's how he confused them on the stand. And one more thing...
KING: Before he responds, Nancy, before he responds, is he supposed to not cross-examine? I mean, what -- what is he -- no, I'm asking you seriously. What is a defense attorney defending his client supposed to do with a witness testifying against the client?
GRACE: You know what, Larry, that's a tough question, but it's my understand...
KING: That's why I asked it.
GRACE: It's my understanding the jury verdict is to speak the truth, and the facts that a defense attorney thinks it's OK just to stick your head in the sand and not ask your client, did you molest these girls, and then go to trial?
GERAGOS: Nancy, it is so outrageous...
GRACE: I don't think it's OK.
GERAGOS: It is so outrageous that you sit there and you make those kinds of arguments in this case. It's just -- it's beyond belief.
GRACE: It's not outrageous.
GERAGOS: The Sixth Amendment...
GRACE: It's the truth.
GERAGOS: The Sixth Amendment of our Constitution talks about the right to cross-examination. He didn't do -- as far as anything that's been printed, anything that's been reported, Pozza didn't do anything except cross-examine witnesses.
GRACE: Mark, he simply didn't do anything that you wouldn't do. That doesn't make it easy to go down.
GERAGOS: Excuse me, Nancy, do you lose sleep at night when over 100 prosecutors in this country put somebody, or got a sentence to death for innocent people?
GRACE: Yes. GERAGOS: Did that give you as much pause about that prosecutor who went up and cross-examined...
GRACE: Yes.
GERAGOS: ... alibi witnesses and made them look like mush?
GRACE: Yes.
GERAGOS: Did you go home at night and say, I can't sleep, I can't deal with this?
(CROSSTALK)
GRACE: Yes, it did.
(CROSSTALK)
GRACE: And when this guy, Mr. Pozza, says he hasn't lost any sleep over it -- you know what, that gives me a problem.
(CROSSTALK)
GERAGOS: He didn't say he didn't lose any sleep, and people do lose sleep. Anybody who tries cases loses sleep.
KING: Now, Mark, let Mr. Pozza respond. John?
POZZA: Nancy, I certainly did not say I haven't lost any sleep over this. I have. And...
GRACE: Did you accuse them of being coached?
KING: Nancy, let him finish.
POZZA: Pardon me?
KING: Let him finish.
GRACE: You accused them of being coached. Didn't you? I can see it right here in black and white.
POZZA: Well, absolutely. That was absolutely one of our defenses. And I have an ethical obligation to zealously represent my clients, and that's what I do. And I don't have a problem looking at myself in the mirror.
KLAAS: By confusing 9-year-old girls. The trouble is that a guilty man went free and a beautiful little girl is dead. That's the whole problem with your argument.
POZZA: A guilty man did not go free. A jury came back and acquitted Mr. Avila.
KLAAS: You befuddled and confused...
POZZA: As far as I'm concerned, when the jury came back and acquitted him, he was found not guilty.
KING: We'll get Dr. Deirmenjian's thoughts. We'll be including your phone calls, subject for the whole hour. Here is more from our guest of last week, the mother. Watch.
(BEGIN VIDEO CLIP)
RUNNION: That's all I could say is -- why do they hurt them? Why do they -- you know, if you're sick, you're sick, but why do you have to hurt them? You know? To take your own illness out, to not realize what a sickness it is, and to hurt children, to realize that this is your problem, not a baby's. That these are human being that have histories, that have personalities, that have potential that you can never imagine. To take that away to feed your need -- it's an unbelievable selfishness.
(END VIDEO CLIP)
(COMMERCIAL BREAK)
KING: I'm just the referee here. We now bring in Dr. John Deirmenjian, forensic psychiatrist, clinical faculty, UCLA school of medicine. His field is evidence and the like, but we certainly like expert opinion on this. You've testified in cases.
DR. JOHN DEIRMENJIAN, FORENSIC PSYCHIATRIST: Yes.
KING: What is the role of the attorney?
DEIRMENJIAN: The role of the attorney is to provide the best defense that he can for the defendant. However, you also have to live with your conscience and you have to have faith in your client. Many times, I'm called to evaluate the defendant. And even though I will have files and files of evidence against the defendant's claim that he is innocent of the acts that he's being accused of, the sexual act, pedophilic type of act, oftentimes, frequently, it is denied. And the defendant will deny all of the claims even when I confront him with the witnesses.
KING: And will the attorney for the defense cross-examines you in a difficult manner?
DEIRMENJIAN: At times, yes.
KING: They will try to question whether your evaluation is correct or not ask.
DEIRMENJIAN: Yes.
KING: OK. And, Nancy, I guess the point is isn't that what a defense attorney is supposed to do?
GRACE: Yes, Larry, to the extent that you give your client the best possible defense...
KING: Right. So? GRACE: ... within ethical boundaries. Now, ethical boundaries are very subjective. To me, I would have a very difficult time, never asking a guy charged with two victims of child molestation, did you do it, and just turning the other way and arguing to a juror, for instance, in Mr. Pozza's case, there was child pornography found in Avila's room. He argued to the jury it was planted. OK? I've got a problem with never asking the client, does this belong to you? Did you do this thing? I've got a problem with that.
KING: And, John, do you want to respond?
POZZA: Yes. Basically, the alleged child pornography found in Mr. Avila's room was actually one of the things that made the jury feel that this was a set-up, that there was credibility problems.
GRACE: Right. I guess had you nothing to do with them feeling like the kids were lying, the porn was planted, it was all a trump job framing Mr. Avila. And now we've got Samantha Runnion's death.
KING: So, Marc, are we saying, as the young lady's mother said, that the jury was stupid, Marc Klaas?
KLAAS: You know, I'm really believing the jury system, Larry. And I believe that juries are going to give -- I believe that juries are going to make their deliberations and certainly pass down their judgment based on the evidence as they understand it. And certainly, whoever is able to present the best case is going to win. But if it has to do with mirrors and it has to do with undermining little girls who have already been traumatized and actually revictimizing them again, then I don't really have time for it. It's immoral and it's unethical.
KING: How could any -- how, Marc, then in the future could any person accused of pedophilia with a young girl get a trial, if you can't cross-examine the young victim?
KLAAS: You know, what you can, of course, cross-examine, Larry. Everybody understands that. I think you need psychiatric evaluations, I think is one thing you need. I think you probably need a more vigorous prosecution. I would imagine that some of the blame could go in the hands of the prosecutor for not prosecuting more vigorously if, in fact, they had eyewitness testimony, if in fact they had child pornography found at his location.
KING: Well said. Where do you stand, Doctor, in this debate?
DEIRMENJIAN: Well, with respect to what?
KING: With respect to should John Pozza be able to sleep nights? Did he do anything wrong in questioning the credibility of the young girls who testified, as has Nancy Grace stated, the mother of the recent victim stated, as Mr. Klaas has stated?
DEIRMENJIAN: I think that Mr. Pozza will be the only one who could actually answer whether he could sleep at night. Now, whether he was incorrect in cross-examining, I do not believe so. KING: He should have cross-examined...
DEIRMENJIAN: He should have cross-examined those girls. And because I think that in order to give a proper defense for his client, he needs to challenge the credibility of the witnesses.
KING: Nancy, isn't that -- the only defense you can do in -- without forensics, is question credibility, or else give up?
GRACE: Yes, naturally. And I'm not saying that cross- examination is improper. Cross-examination is proper. But, Larry, this is not just a strategic game. This is not a chess game on a board tonight. These are little girls. And their truthful story, in my mind, has been corroborated by what Sheriff Carona has told us. I don't think he was innocent in the original case, and I think the defense attorney used every trick in the book, never asked his client, did you do it, and went to that jury with a straight face and got a not guilty. Is it allowed in the system? Yes. Is it right? No. It's immoral.
KING: Hasn't she got a point, Mark Geragos?
GERAGOS: No. She's got no point whatsoever, if you want to know the truth. What's unbelievable to me is that Nancy Grace will sit here and tell you that somehow a defense lawyer is supposed to leave his role as an advocate. We do have an adversary system. And he's supposed to go and ask the client, and then depending on what the client does, he either defends the client if he believes the client when he says he is innocent or he goes into the tank if he doesn't believe the client. That is the absolute last thing that you want in an adversarial system.
If you want the system that Nancy Grace has just proposed, then you don't need lawyers. All you need is somebody make an arrest. And if the police then say, this man is guilty, you do not need a trial. You can go straight...
GRACE: That's not what I'm saying.
GERAGOS: Nancy, that's the import. That's the logical conclusion of your argument.
GRACE: That's not what I'm saying.
GERAGOS: There is no other wear to have a system like ours. It may not be perfect, but it certainly is the best system known to modern man.
GRACE: That's not what I'm saying.
GERAGOS: And for anybody to blame jurors or blame defense lawyers...
GRACE: You go tell Samantha Runnion's mother the role of the adversary system.
GERAGOS: Hold on. Hold on. I'm just telling you that when you start to blame jurors or blame defense lawyers...
GRACE: I didn't say that.
GERAGOS: ... and start to say that it's the defense lawyer's job to whether or not to convict somebody or go into the tank, we've reached and awfully sad stage in America.
(CROSSTALK)
GRACE: Well, unfortunately for you, Mark, that's not what I said.
GERAGOS: That's not -- well, Nancy, you said before we left that somehow he doesn't sleep well as night, or he does sleep well at night because he doesn't ask. There isn't a lawyer around, Nancy, who's got any kind of morality who tries cases who doesn't struggle with these issues all the time.
GRACE: Yes, and, and, I'm waiting.
GERAGOS: Struggles with them, struggles with them, loses sleep.
GRACE: Right.
GERAGOS: How many times I wake up in the middle of the night wondering whether or not, this or that. But to just make this into some kind of a -- it's a defense lawyer, we're going to make him into the boogeyman I think is unconscionable.
(CROSSTALK)
KLAAS: There's another way it can be done. There's another way it can be done.
KING: What's that, Marc?
KLAAS: It can be done with children's advocacy centers. When the children report the abuse, they're taken to a neutral victim- friendly location, and they're asked all of the appropriate questions with all of the players present behind a one-way mirror so that everybody can make sure that their points are covered. This information is in videotape, and that testimony is then presented on videotape at the trial.
KING: Could that work?
DEIRMENJIAN: It could definitely work. I think that the more people that you get involved, and it will also protect the children who are witnesses.
KING: We'll take a break and be back with more. We'll be including your phone calls. Don't go away.
(COMMERCIAL BREAK)
KING: Before we get our audience involved, Dr. Deirmenjian has a question for John Pozza.
DEIRMENJIAN: Yes. Mr. Pozza, I want to find out -- my heartfelt condolences go to Mrs. Runnion, especially after her appearance here last week. And, again, this is the worst scenario of the legal system not being infallible. But what I was wondering is, had Avila been convicted, what kind of sentence was he looking at and would he have still been incarcerated?
POZZA: Well, because there were multiple victims, Mr. Avila was basically looking at a life sentence.
KING: A life sentence, even though no deaths occurred.
POZZA: Correct.
KING: Ashtabula, Ohio, hello.
CALLER: Hello, Mr. King. How are you?
KING: Hi.
CALLER: My question is for John Pozza. What I wondered...
KING: Sure.
CALLER: What I wanted to know is, when the composite drawing was released to the public, did you recognize him as your former client?
POZZA: Not at all. I would have never put that together. I really didn't envision that Mr. Avila was capable of this type of crime. They were talking about a serial killer, and, really...
KING: You never said, wait a minute, maybe it was him?
POZZA: Not at all. Not until they executed a search warrant on a business in Temecula that I knew he worked at. And that's when it clicked
KING: By the way, this is weird, but you couldn't believe that he still didn't do that crime two years ago. He might have done this one, didn't do that one. Is that possible?
POZZA: Absolutely. Again, he was acquitted. So, in my mind, he didn't do it.
KING: Beaumont, Texas, hello.
CALLER: Hi. My question is for Nancy. I was wondering if Alejandro goes to trial in the Runnion case, can evidence be presented of the first trial in the second trial?
GRACE: You know, that's very interesting because in most jurisdictions, if the case goes all the way to a jury trial and it's actually an acquittal, it can't be brought in. But one other thing that concerns me in this case, in the first case, Alejandro Avila flunked a polygraph. Now, that didn't cause you some concern, Mr. Pozza, when you knew your client flunked a polygraph? That didn't make you wonder if he did it?
KING: Before he answers that, is your answer that that first case can't come up in the second case?
GRACE: In most jurisdictions, no. But I'm wondering if Mark can tell you about California?
GERAGOS: In California, there's case law under evidence code section 1101 that says that it's -- if there was no finding of factual innocence after the jury verdict, that, yes, they can make an argument that it can come in.
KING: Did the lie detector concern you?
POZZA: Well, that's why polygraph tests are not admissible in court, because of their unreliability. Basically, I see them as an investigative tool by law enforcement. We don't get the results. I can't confirm he...
KING: Nancy, don't you like them when they agree you with and don't like them when they don't?
GRACE: Well, obviously, he's side-stepping the question. If I were in trouble, I might call him, either him or Geragos to get me off the hook because, you know, they'll do anything. It doesn't bother them. But, you know, this is not a big game. People's lives are involved here.
GERAGOS: You know, Nancy, Nancy, you can take the pot shots, but the fact of the matter remains that I don't see -- we were just saying at the break, you know, it's interesting how many times I've seen DNA exonerate somebody who is on death row...
GRACE: That's right.
GERAGOS: And the prosecutor come out and say, I think he was guilty anyway. Doesn't that bother you as much?
GRACE: Yes, it does, because I don't like it when anybody...
GERAGOS: Well, then, there isn't that much...
GRACE: If you can let me finish, Mark.
GERAGOS: ... that separates the two of us except, well, except...
GRACE: I don't like when anyone...
GERAGOS: I'm not going to grandstand about it like you're doing.
GRACE: I don't like anyone turns away from the truth. And when you look at your client, charged with two counts child molestation, he flunked the polygraph, that would make me think twice about getting up in front of a jury and saying he didn't do it. GERAGOS: The only problem is, Nancy, is I've been in the opposite situation where I've had clients who passed the polygraph and I've tried to get that polygraph admitted here in the state of California and the judges said no.
GRACE: You should have stipulated up front.
GERAGOS: I tried to. And the prosecutors had said no. And the prosecutors still argued that my client was guilty when they knew he passed the polygraph. That doesn't bother the prosecutors at all.
GRACE: Can we talk about this case, Mark? Can we talk about this case?
GERAGOS: That didn't bother them at all.
KING: Frederick, Maryland, hello.
CALLER: Hi, Larry.
KING: Hi.
CALLER: My comment and then question is for Nancy. On one hand, we have the prosecution putting together a case based on the evidence allowed to be presented. And then we have the defense attorney doing what he can to provide a defense for his client.
However, based on what is allowed to be presented, the jurors are the ones that have the responsibility for deciding whether a defendant is innocent or guilty. And with the jurors making the ultimate decision, of course, many times involving life or death for the defendant, my question is do you feel there are any other ways to empower the jury to be able to determine in each of their own minds whether the defendant is guilty or not guilty, such as allowing them to ask any question left unanswered in their minds to any witness who's been presented by either the defense or the prosecution?
GRACE: I've got tell you something. I once had a judge that was about 84 years old, and it is allowed that jurors can pose questions through the judge, of course, to the witnesses.
KING: Really?
GRACE: Yes. In many, many jurisdictions, and we always had questions from the jury. They would be routed through the judge to the witnesses. And I've got to tell you, they came up with some great questions. And I think it empowered the jury.
KING: By the way...
GRACE: But another thing is that so often, Larry, the jurors don't have the whole story. For instance, this polygraph. And I know why they're not admissible. They're not always reliable. But the jury never has the whole picture.
KING: Well, if they're not reliable, they shouldn't have -- right? I mean, if they're not always reliable, why should the jury have the polygraph?
GRACE: I think they are a red flag. I think that you should pay attention to them. If you are one of the attorneys...
KING: And if you're a prosecutor and you were prosecuting someone and the polygraph cleared them, you would present that to the jury?
GRACE: I would really repeat my investigation and...
KING: You would say, ladies and gentlemen of the jury, I think he did it, but the polygraph says he didn't?
GRACE: And as a matter of fact, Larry, I have asked for polygraphs from defense attorneys in the past. And (UNINTELLIGIBLE) to them.
KING: Why, Mark, can't jurors question?
GERAGOS: Well, actually, a lot of judges, even here in California, will allow jurors to question.
KING: What's wrong with that.
GERAGOS: There's actually -- as long as the question is vetted first to both the prosecution and the defense, generally it's not a bad idea. And, in fact, most lawyers want it because they want to hear and think or know what the jury is thinking.
KING: Wouldn't it help with the verdict?
DEIRMENJIAN: It could help the verdict. However, you know, you have 12 jurors. That's a lot of questions that could be asked. And I think it can also detract from the trial.
KING: Do you like it, John?
POZZA: Absolutely. I think it would be great, great feedback.
KING: We'll be back with more and more phone calls on this edition of LARRY KING LIVE. Don't go away.
(COMMERCIAL BREAK)
KING: Before we take our next call, Mark Geragos, does Marc Klaas have a good idea about doing the children in a different set of circumstances, question by different people and showing -- because children are different.
GERAGOS: Right. And I think that's actually an idea that needs to be explored. Because part of the problem is, and I think when John was talking about the suggestion of being coached or this or that, you want to remove that. And if you've got somebody that understands the situation, that's been trained and is independent and you can still observe it, Marc, as he always is, may be on to something.
KING: Nancy, you like that idea?
GRACE: Yes, I do. And as a matter of fact, when I had child molestation and child abuse cases, I would bring in a social worker to help me with the child, to prepare them for what was to come, to go through their story so I could determine the truth before I stood up in front of the jury.
KING: Makes sense. Dr. Deirmenjian, you like it, too?
DEIRMENJIAN: I like it a lot. You know, in our society we treat children differently in a lot of different venues. However, when it comes to the courtroom, I think we're at a conundrum and we need to resolve that issue.
KING: You like it, John?
POZZA: Absolutely.
KING: Marc, four to nothing in your favor.
KLAAS: Well, you know, Larry, what I see, and I'm sort of keeping score here. I see a failed polygraph, kiddie porn found on his premises, two eyewitnesses, an attorney who never questions his client's innocence. And the end game is that the two sexually abused girls are called liars, the jury affirms that. A guilty man walks and a little girl dies. So there has to be a better way. We may have the best way; there has to be a better one. There are over 200 children's advocacy centers in the state of Texas alone.
KING: Pompano Beach, Florida, hello.
CALLER: Hello. My question is for Mark. Mark, had you been representing Mr. Avila in the original child molestation cases and you started to suspect he might not have been completely truthful, what would your next step have been, honestly, Mark, what would you have done? Listen, the story...
GERAGOS: Not being truthful to me or to somebody else? What are you asking?
CALLER: He wasn't being truthful to you.
GERAGOS: If a client lies to me...
KING: Well, no, put it this way, you believe your client is guilty halfway through an investigation or trial, then what?
GERAGOS: I generally take the position that if I believe that the client is guilty and the client has got exposure, that you try and work out a deal. That's kind of the mantra. John is correct.
KING: So if you thought he was guilty, you would have gone to Avila and said, look, I don't believe you.
GERAGOS: Look, I've had a lot of yelling and screaming matches with clients. I mean, it happens -- I hate to tell you how many times it happens, where you get into a situation where a client is in total denial. And you have to confront the client. You know, this case is the hardest to talk about, because it's so offensive.
KING: Was it harder for John because there were no forensics?
GERAGOS: No, I don't know that that's necessarily the case. I think that some of the most compelling witnesses I've ever seen in a courtroom are kids. I mean, I've had cases where I thought the kids were truly compelling, and one of the things you do is you see it at preliminary hearing. You can judge as a lawyer whether that kid is compelling or (UNINTELLIGIBLE).
KING: Doctor, are kids good, generally, or depends?
DEIRMENJIAN: I think kids are good in general. However, it can vary. And we've seen that there is that variation. And I think that definitely needs to come up, both on the prosecution's and the defense side.
KING: When a kid testifies, John, that he asked me to touch his private parts. How do undo that kind of testimony?
POZZA: Well, basically what I would do then is ask to go through the details, the timeline, when did this occur, who was present, so forth. So that you get an idea.
KING: (UNINTELLIGIBLE), in your case, right?
POZZA: Yes.
KING: To Boca Raton, Florida. Hello. Boca Raton, hello.
CALLER: Yes, hello.
KING: Go ahead.
CALLER: Hi, Larry.
KING: Hi.
CALLER: Hi. My question is for Nancy Grace.
KING: Sure.
CALLER: I, you know, the availability of child pornography on the Internet, we keep hearing about it being found in the homes of these monsters. And I want to know as a lay person, with so much frustration and anger over what has been happening to these young girls, so much frustration, how can I get involved in getting rid of it? What can we do in our communities to make people aware of this, and what can we do as far as legality? What can we do to get rid of it?
GRACE: Well, I've got to tell you something. It warms my heart to hear someone who wants to change the system, because what happened here is wrong. Him being out on the streets was wrong. And I know that John Pozza has an explanation for that kiddie porn being in that room, in his bedroom, I understand that.
KING: That wasn't her question. The question was, what can you do about child pornography on the Internet.
GRACE: Yes. I'm getting to that.
KING: That was the question. Oh.
GRACE: And long story short, when you're in court like this, when these things come up, it's very difficult to argue. What you can do as a lay person is also difficult, because the First Amendment is going to protect a lot of this activity on the Internet. But the only thing you really can do is contact your local authorities and find out what outreach programs there are that you can participate in. It's just very difficult.
KING: It's hard, isn't it? Yeah, Marc Klaas, go ahead.
KLAAS: Yes, there are some organizations like SOC-UM, s.o.c.- u.m., Cyber Angels, the National Center for Missing and Exploited Children, the FBI. Often times, a lot of local law enforcement agencies are searching out pornography on the Internet, and certainly one can contact any of those entities to see what they might be able to do.
Sometimes it's just a matter of getting out there and doing the surfing yourself, and then reporting it when it's found. There are just so many of these sites.
One of the problems that exists is that although it is illegal and a felony, and I believe in most of our states to possess that kind of information, and certainly to distribute it, since the Internet is worldwide, a lot of it comes from offshore. And that, therein lies the problem.
We can also go after the ISPs, the Internet service providers who are allowing this stuff to be viewed through their services, and shut them down as well.
KING: We'll get a break and we'll be right back. Don't go away.
(COMMERCIAL BREAK)
KING: Before our next call, John Pozza, what if they asked you to defend him again?
POZZA: Well, they certainly haven't asked me to defend Mr. Avila again, Larry. And in considering that, I don't think that I would be beneficial to him in light of the publicity of the past trial...
KING: Wouldn't be a wise move on your part?
POZZA: No, I don't think so.
KING: Mr. Geragos, would you defend him? GERAGOS: Somebody asked -- I think a caller asked the other day. I have a lot trouble with these kinds of cases because I have kids. I struggle with that.
You have a duty, though, if a court were to ask you to take the case on an appointed basis. I mean, obviously, a private lawyer, John or somebody else, you pick or choose whatever cases you take, and you don't have to.
But if a court calls you and asks to appoint you, then you've got a duty. You've got a duty to do it.
KING: Miami, hello.
CALLER: Hi, good evening. My question is for Mr. Pozza.
KING: Yes.
CALLER: Since you clearly did not ask the basic question of your client -- whether or not they're guilty -- what would you consider to be a deterrent, what criteria should a client have in order for you to turn down a case that is immoral or unethical?
POZZA: Well, in saying that I never asked Mr. Avila, there are confidential communications between an attorney and a client. So I really can't ever answer whether or not we had discussions about that.
Certainly, again, you try to negotiate a plea. But if you have a client who will not accept a plea, you have no other alternative but to go to trial.
KING: Would you agree, Nancy, with the statement that hung over Edward Bennett Williams' desk in Washington which said: "We may turn down a case, but never because of its notoriety."
GRACE: Yes, I would agree with that.
KING: So that everyone is entitled to a defense?
GRACE: Absolutely.
KING: And your argument with John Pozza is?
GRACE: My argument is, as I stated earlier, I believe everyone in our criminal system has a right to a defense. In our system.
I, however, personally have a problem with that which I consider to be immoral and just plain wrong. I've got a problem. I don't want the bad taste in my mouth that I didn't ask a guy if he did it when there's a chance he could get out and do it again.
That's what happened in this case. I think it's wrong.
KING: And Deirmenjian -- Doctor Deirmenjian, you're saying that he has every right to defend him as best he can.
DEIRMENJIAN: Yes. Yes.
KING: You don't hold a moral equivalent against defending him?
Nancy holds a moral equivalent against defending that type of person, if you believe they might have done it.
DEIRMENJIAN: It's either that or people who are accused of crimes with regards to this nature will never get anybody to defend them.
KING: Marc Klaas, did you take a personal feeling against the lawyer who defended the man who murdered your child?
KLAAS: Yes. There were a couple of them, actually. During the guilt phase of the trial, after it had been totally determined that Polly had been murdered by this guy and they were basically ready to go out and -- I'm sorry, in the sentencing phase -- go out and determine the sentence, the defense attorney brought in her own 9- year-old child, sat her down in the courtroom and turned to the jury and said, look, forget the facts; act as God, don't return a death penalty.
So yes, I had something against her, sure.
KING: And during the regular trial, did you have any argument with him being defended?
KLAAS: Well, again, Larry, you know, I'm not the guy to ask that. Of course. I mean, I knew what this guy had done. There was no question in my mind at all.
I'm not the guy to ask. I would have taken a baseball bat to Richard Allen Davis the day they arrested him, given the opportunity.
KING: Mark, these are -- why do we -- I guess it could be asked, if Mr. Avila had a heart attack in jail and the prison doctor did not attend to him, he would lose his license?
GERAGOS: Yes, that's correct.
KING: As a lawyer...
GERAGOS: That's kind of -- that's one of the, I guess Nancy would call that a rationalization. And to some degree I probably would agree with her, because in some sense, when somebody comes into your office, it isn't a -- it's not like you're in an emergency room, even though I often say a criminal defense lawyer is like the E.R. doctor of the law.
The problem is, is that if you're a private lawyer, you can pick and choose what cases you take, generally. If you're a public defender, a lot of times you don't have that luxury.
And in our system, the way it's set up, the lawyer is not the person who's supposed to adjudicate. The lawyer is not the one who's supposed to decide. It doesn't make these decisions easy, and it doesn't make the morality of it easy. And, you know, when Nancy says -- and I believe her -- that it leaves a bad taste in her mouth, I feel just as strongly as Nancy does, I get as frustrated as Nancy does with defense lawyers, I get with prosecutors when I think a prosecutor is prosecuting an innocent person. I'm beyond myself, just like Nancy is.
And I think that there is an equality to it. And that's -- and I know that Nancy doesn't accept that. I think if we were sitting here and having a drink, she might -- that there are prosecutors out there who think nothing of prosecuting innocent people.
KING: I'd like to be there when Geragos and Nancy sit and have a drink.
Nancy, thank you as always. Nancy Grace, Marc Klaas and Mark Geragos, Doctor John Deirmenjian and, of course, John Pozza.
Tell you about tomorrow night right after this.
(COMMERCIAL BREAK)
KING: It's been a little over a year now since Barbara Eden lost her son. The "I Dream of Jeannie" star is our guest tomorrow night with your phone calls on LARRY KING LIVE.
Right now we turn it to New York, "NEWSNIGHT" and Aaron Brown.
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