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American Morning

Sniper Suspects Trials

Aired October 20, 2003 - 09:09   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.


SOLEDAD O'BRIEN, CNN ANCHOR: Let's turn to talk a little bit more about both of these cases.
CNN's legal analyst Jeff Toobin is back with his insights.

Good morning once again.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Hi.

O'BRIEN: Let's start with the Muhammad case. The defense strategy, we have heard, is to focus potentially on mitigating aspects of I guess the life of John Allen Muhammad. Why do you think that's going to be their focus? Is it because the circumstantial evidence is so strong you can't really go that route?

TOOBIN: Yes, I think that's the basic reason. The key point about that trial is the same jury will evaluate guilt as the penalty. And the more important priority for the defense here is trying to spare John Muhammad's life. So you don't want to offend the jury in the guilt phase by coming up with a preposterous theory that he was framed, there was some other gunman. You want to -- the phrase sometimes lawyers use is plead guilty slowly. Explain the context of the situation, focus on the fact that the prosecution may not be able to identify which of the two, Malvo or Muhammad, was the gunman, and then set up a death penalty argument where you think you have a reasonable chance of getting life in prison.

O'BRIEN: To what degree is the defense's hands tied because John Muhammad will not allow himself to be examined by the psychiatrist for the prosecution? Doesn't that mean that some evidence is not allowed?

TOOBIN: Absolutely. Any kind of insanity plea, mental disability plea is out of the question, because Muhammad has not allowed himself to be examined. Interesting contrast with Malvo. Malvo is laying the groundwork for some sort of insanity defense. He has a much better argument in general because he was the younger one. He can argue that he was brainwashed. It's very hard to argue if you're John Muhammad that somehow Malvo persuaded you to get involved in this.

O'BRIEN: I want to turn to the Kobe Bryant case, but quick follow-up question on that. Do the two defense attorneys in the sniper case are working closely together?

TOOBIN: No, it doesn't. They are conflicting strategies in many respects. They are basically pointing to each other as the prime culprit. So I don't think there's any coordination at all. O'BRIEN: All right. In Kobe Bryant's trial, or I should say hearing, which may or may not be heading to a trial, we'll know probably today. We heard from Gary Tuchman. He said the defense has pointed out some things that they don't have, evidence. He said they don't have scratches, they don't have bruises, they have a witness who says she didn't seem to have a problem when she came out of Kobe Bryant's room. That's a lot of sort of negative evidence. Is that strong or not strong?

TOOBIN: Well, you know, it's only in the context of the rest of the evidence that it matters. But it's a classic defense strategy to point to what's not in the case, what you might expect to be there. There's a phrase the prosecutors use to respond to that. They say absence of evidence isn't evidence of absence. Just because something isn't there doesn't mean the crime didn't take place the way the government said it did.

But, you know, I have to say, as someone who sat there and watched the evidence come in on this preliminary hearing, there are holes in the prosecution's case, as we've seen so far, and the big question in the Kobe Bryant case, we have no idea about, which is how credible a witness is the woman who is the accuser. That will await a trial.

O'BRIEN: It will all come down to what she has to say and how she has to say it, maybe even more importantly.

TOOBIN: In likely six or eight months to a trial, if today, as we all expect, the judge says Kobe Bryant has to stand trial. The trial itself is many months off.

O'BRIEN: Jeff Toobin as always, thanks.

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






Aired October 20, 2003 - 09:09   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
SOLEDAD O'BRIEN, CNN ANCHOR: Let's turn to talk a little bit more about both of these cases.
CNN's legal analyst Jeff Toobin is back with his insights.

Good morning once again.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Hi.

O'BRIEN: Let's start with the Muhammad case. The defense strategy, we have heard, is to focus potentially on mitigating aspects of I guess the life of John Allen Muhammad. Why do you think that's going to be their focus? Is it because the circumstantial evidence is so strong you can't really go that route?

TOOBIN: Yes, I think that's the basic reason. The key point about that trial is the same jury will evaluate guilt as the penalty. And the more important priority for the defense here is trying to spare John Muhammad's life. So you don't want to offend the jury in the guilt phase by coming up with a preposterous theory that he was framed, there was some other gunman. You want to -- the phrase sometimes lawyers use is plead guilty slowly. Explain the context of the situation, focus on the fact that the prosecution may not be able to identify which of the two, Malvo or Muhammad, was the gunman, and then set up a death penalty argument where you think you have a reasonable chance of getting life in prison.

O'BRIEN: To what degree is the defense's hands tied because John Muhammad will not allow himself to be examined by the psychiatrist for the prosecution? Doesn't that mean that some evidence is not allowed?

TOOBIN: Absolutely. Any kind of insanity plea, mental disability plea is out of the question, because Muhammad has not allowed himself to be examined. Interesting contrast with Malvo. Malvo is laying the groundwork for some sort of insanity defense. He has a much better argument in general because he was the younger one. He can argue that he was brainwashed. It's very hard to argue if you're John Muhammad that somehow Malvo persuaded you to get involved in this.

O'BRIEN: I want to turn to the Kobe Bryant case, but quick follow-up question on that. Do the two defense attorneys in the sniper case are working closely together?

TOOBIN: No, it doesn't. They are conflicting strategies in many respects. They are basically pointing to each other as the prime culprit. So I don't think there's any coordination at all. O'BRIEN: All right. In Kobe Bryant's trial, or I should say hearing, which may or may not be heading to a trial, we'll know probably today. We heard from Gary Tuchman. He said the defense has pointed out some things that they don't have, evidence. He said they don't have scratches, they don't have bruises, they have a witness who says she didn't seem to have a problem when she came out of Kobe Bryant's room. That's a lot of sort of negative evidence. Is that strong or not strong?

TOOBIN: Well, you know, it's only in the context of the rest of the evidence that it matters. But it's a classic defense strategy to point to what's not in the case, what you might expect to be there. There's a phrase the prosecutors use to respond to that. They say absence of evidence isn't evidence of absence. Just because something isn't there doesn't mean the crime didn't take place the way the government said it did.

But, you know, I have to say, as someone who sat there and watched the evidence come in on this preliminary hearing, there are holes in the prosecution's case, as we've seen so far, and the big question in the Kobe Bryant case, we have no idea about, which is how credible a witness is the woman who is the accuser. That will await a trial.

O'BRIEN: It will all come down to what she has to say and how she has to say it, maybe even more importantly.

TOOBIN: In likely six or eight months to a trial, if today, as we all expect, the judge says Kobe Bryant has to stand trial. The trial itself is many months off.

O'BRIEN: Jeff Toobin as always, thanks.

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