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CNN Sunday Morning

Interview With Michael Smerconish, Pamela Hayes

Aired August 04, 2002 - 08:17   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 SMITH, CNN ANCHOR: From a Catholic Archbishop in court, to a man on trial for letting a friend drive drunk. There's a lot going on in the nation's courtrooms. Joining us now from our New York bureau is criminal defense attorney Pamela Hayes, and from Philadelphia, former prosecutor Michael Smerconish.

Thank you to both of you for joining us this morning.

Let's start with the Danielle van Dam case. David Westerfield facing charges of kidnapping and murdering the 7-year-old San Diego girl. His defense attorney is focusing on the time of death questions in this case -- why is that?

Let's start with you, Michael.

MICHAEL SMERCONISH, TRIAL ATTORNEY: Well, I think that there's, dare I say, an ironclad case that they've assembled against Westerfield here with the hair, and the blood, and the fiber, and the lack of an alibi. I think there's a pretty tight case that's come together against him.

His defense lawyer has been successful on a prior occasion in a similar circumstance in getting someone freed because the time of death did not line up with the prosecution's case. So, in this particular instance, he's trying to say that some insect activity on the body proves that it could not have happened when the police say that it happened.

I don't think it'll be enough to get Westerfield off.

SMITH: Pamela?

PAMELA HAYES, CRIMINAL DEFENSE ATTORNEY: I agree. Basically, what has happened here is they're going for time of death and trying to make that a form of alibi, but they have not overcome any of the evidence as far as the blood evidence is concerned, the fact that he cannot show that he was not the person involved in this activity.

They tried to work with the pornography that was on his home computer, but that didn't help, when his son declined to say that it was his pornography. And all these things weigh on the jury, and unfortunately, I don't think its enough here. You need more than just the time of death. Anybody could be wrong on the time of death -- the experts could be wrong, and that is the only thing that the defense has going for it.

So, maybe if they find out one juror who's just so meticulous that thinks that's a very relevant fact, they could get a hung jury. But I think my assessment is, it is a pretty tight case.

SMITH: We'll see if you guys are right. It should be noted that the attorney uses the same defense successfully back in 1981 in a different case; we'll see again what happens.

Another shocking story this week, the beating deaths of the two men who drove a van into a crowd of people in Chicago. There are murder charges coming so far, seven have been charged, already civil suits filed by those injured in the initial accident.

Pamela, your thoughts.

HAYES: Oh, you know, that was the absolute outrage. I mean, it's clear mob violence, and you know, here these people are, they're driving, they have an accident, and that's what the police are for, but the question comes down to, what are they going to be able to charge them with? Are they going to charge them under some form of depraved indifference murder, which is, you know, your action is so reprehensible that you should've known, and it rises to the level of an intentional act, or are they going to be able to charge them with a manslaughter?

This was a heat of passion, and these people just went off. But I think they're going to have a problem any way it's cut.

SMITH: A hundred people watching, a crowd of 100 watching this happen -- Michael, what do you think going to happen in this?

SMERCONISH: Well, I'll tell you what I'm drawn to in this case. The Chicago newspapers are reporting this morning that four of the seven have been arrested previously, as many as 10 times or more apiece. And what it tells me is, man, this was the wrong neighborhood for a van to go over the curb. This is the last group of folks that you want to tangle with.

It's also, I think, symptomatic of a problem in a number of cities, including right here in Philadelphia, where you've got repeat offenders that the law just does not seem to deal with.

I myself am asking, how can an individual be arrested more than 10 times in their life? Somebody needs to throw away the key on the repeat offenders who are among us. That will put an end to this sort of thing.

SMITH: Our next topic, Cardinal Bernard Law -- Bernard Law, I should say -- he spoke publicly for the first time in weeks and said the Boston Archdiocese should not be forced to comply with a proposed settlement with dozens of alleged sexual abuse victims.

Pamela, want to take this one first?

HAYES: Yes -- the problem here is, I think what we have to do is we have to look at it, and decide whether this was a full-blown settlement where all the parties had signed off, where the court had actually dismissed the action, and taken it off the docket.

The problem with a proposed settlement where people go out and publicly say, oh, we're going to do this, we're going to do this, is it's not binding, and you have to have that element to bind the parties where everybody signs it and agrees with it, and the court signs off on it. It goes from there, you know. People change their minds, and that doesn't have anything to do with the seriousness of what has happened here, but you know, every lawyer in America knows, unless you have everybody's name on the document, you can't be bound.

SMITH: OK, Michael.

SMERCONISH: What's interesting, just to echo Pamela's thoughts, because I'm sure she sees as I see, this goes on in my practice with more regularity than I would hope; you get people who get cold feet for whatever reason. I think the archdiocese, in this case, got cold feet because this story got its wind and got some legs after the settlement deal first went down, and all of a sudden they thought to themselves, uh-oh, if we give all this money for this one particular case, there's not going to be anything left for any of the other problems that have now arisen.

One other footnote: The cardinal in this case is trying to say that he was acting only in his own behalf as an individual defendant, and not on behalf of the archdiocese, whereas at the same time, in the "Pilot," which is the newspaper for the archdiocese, he was making statements that sounded as if he was acting for the entire archdiocese. I think he's going to have a very tough time in saying, I was only speaking for myself, and not for to the entire church in the Boston area.

SMITH: OK, very quickly now, these next two topics, you need -- we're running out of time here, but first the Robert Blake case, the Christian Brando tape this week telling Bonnie Lee Bakley about her lifestyle, quote; "You're lucky that somebody ain't out there to put a bullet in your head."

What effects will this have in this case -- Michael, why don't you go first?

SMERCONISH: Well, I think that the defense is hoping that that will now point some fingers in the direction of Christian Brando. I don't think it will. The police have already excluded him in this case. And instead, I think that it paints a consistent picture of Bonnie Lee Bakley being a women who would hook up with guys, and then try and extort money from them.

I'm certainly not condemning her, and I'm not going against the victim of the crime, but I think that it will actually fit with the case that's being established against Baretta.

SMITH: OK, Pamela, do you have a quick thought on this?

HAYES: I just think it's just more fodder, and you might get the right kind of jury, and they might think that somebody else could have done this, but it's just basically something to talk about, and every defense lawyer wishes they have something like that to put in this case, because it's a distraction, and sometimes it distracts enough to cause your client to get free.

SMITH: OK, very quickly, our final case, you're going to hear a lot about this in the next coming weeks and months -- the New Jersey man who picked up a friend who had been charged with drunk driving, took him to his car. The man then in his car drives, kills another man, kills himself, and now this man, 40-year-old Kenneth Powell (ph), is being charged with both deaths.

Pamela, your thoughts on this.

HAYES: It think it's an outrage. If you have the public -- how can the police force a public person to do something? They had this man in their custody; they had his car safely put away. All they had to do was take him to his home, where he could have slept it off.

It's not the obligation of his friend to bring him home, and if something goes wrong, then he should be charged.

SMITH: Michael, would you agree with that?

Certainly it's a (UNINTELLIGIBLE).

SMERCONISH: I would agree here. I absolutely would agree with it. You've got a guy here who is dead asleep, and he gets a phone call from the police, and they say, "Will you come over and pick up your buddy. You know, he was drunk, we arrested him, and now we're releasing him." Well, he goes over, he picks the guy up, the police hand back the keys, drive him to the car, which is still on the side of the road, and he goes back to bed, and now the police want to hold him accountable for two deaths -- that fellow's death, and a young Navy ensign.

The police have some culpability on this part in this case, and it's a terrible tragedy.

SMITH: It really is, and one that we'll be watching very closely. Thank you both for your time. Unfortunately we're out of time, but it was a very spirited discussion today. Pamela attorney -- Pamela Hayes, criminal defense attorney, and former prosecutor Michael Smerconish.

Thank you very much.

HAYES: Thank you.

SMERCONISH: Thank you.

SMITH: OK.

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