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CNN Sunday Morning

Interview With Michael Smerconish, Jayne Weintraub

Aired August 18, 2002 - 08:21   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

CATHERINE CALLAWAY, CNN ANCHOR: Welcome back, everyone, time now for our legal roundtable discussion on tap today. The Westerfield trial, the $1 trillion lawsuit filed by the families who lost loved ones on 9/11, and the case of the American-born detainee. Joining us from Philadelphia this morning is Michael Smerconish, He's a trial attorney and a columnist, also a radio talk show host. And also from Miami, criminal defense attorney Jayne Weintraub.
Thank you both for being with us this morning.

JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY: Good morning, Catherine.

MICHAEL SMERCONISH, TRIAL ATTORNEY: Thanks, Catherine.

CALLAWAY: We have a lot to talk about, don't we? Interesting week we've had. You know, I'd like to start off, if we could with the Westerfield case -- of course, he is on trial for the death -- kidnapping and death of Danielle van Dam, the 7-year-old little girl. Deliberations been going on now for quite some time, more than a week. What does this tell you? Jayne, let's start with you.

WEINTRAUB: Well, number one it tell me that its good for the defense, in the sense that obviously the jury is sifting through the evidence, and from a defense standpoint, you always want to know that they're listening, and they're really looking at what's been shown in the courtroom.

I think that they're obviously taking a very good look at it, because they're taking so much time with it. It's not a slam dunk for the prosecution at all. Remember, this is a circumstantial case, and the fibers, you know, and the blood evidence is so remote that I don't think it's such an easy case for the government.

CALLAWAY: But see, now, Michael, to me, it just smells trouble, when it takes this long...

SMERCONISH: I agree, I...

CALLAWAY: ... at least trouble for the prosecution, that is.

SMERCONISH: Catherine, I never thought we'd be 28 hours into deliberation, because I believe that the combination of the blood, the fiber, and the hair evidence is enough to through Westerfield away, and that's the way that I thought it would go. I still think that's the way that it would go, and I would hate to think that the jury is contemplating buying into this, this whole business that, well, they were wife swappers and pot smokers and a maybe they did have unsavory -- it has nothing to do with the murder, it has nothing to do with the fact ...

WEINTRAUB: ... it could have given the...

SMERCONISH: ... that the van Dam's handprint, that that young girl's handprint is over the headboard of the bed in his vehicle. I mean, that's the most incriminating evidence that there could be. I don't think that it's circumstantial; I think it's a hell of a case.

CALLAWAY: Jayne, you obviously disagree.

WEINTRAUB: It doesn't mean that -- I'm sorry Catherine -- it doesn't mean that she was there, and murdered there, all it means is that perhaps the girl wondered in there. It's an open RV down the block. Why wouldn't kids -- we know the dog was in there. Why wouldn't kids and a dog, or somebody else have an adventure, and explore?

SMERCONISH: Well, she would have had to wander in bleeding.

WEINTRAUB: I mean, think about it, she was a little girl.

SMERCONISH: She would have had to wander in while bleeding, because her blood's been found all over this guy's clothing, as well as his vehicle.

CALLAWAY: All right, see -- now, we now we know what kind of discussions are going on in the jury room, or have been going on in the last week. So, that explains that. You think we're going to see a verdict any time soon -- Jayne?

WEINTRAUB: I think that we will. I think that also a big problem here is that the fact it's not sequestered. I mean, look at what we're doing this morning.

CALLAWAY: Yes.

WEINTRAUB: I mean, members of the jurors families could be watching this. We know that one of the jurors was already followed home, an alternate juror was followed home last week.

I mean, the problem here now is not to contaminate this jury, and to let them sift through the evidence, as they deem appropriate and accept the burden. He faces the death penalty if he's convicted.

CALLAWAY: I'm was going to ask Michael, is this going to be a mistrial?

SMERCONISH: No, I think, it'll -- I think it will wrap up this week, and I still maintain that it will be a guilty verdict, and probably by Wednesday.

CALLAWAY: All right, let's talk now about the 9/11 lawsuit -- of course the lawyer for about 700 relatives of September 11 are planning now to amend this lawsuit that they filed against Saudi officials and of the Sudan government to apparently correct a mistake.

Now, we had been reporting that this was like a $100 trillion lawsuit, you know, who has a 100 trillion -- we understand now they're going to amend it, and they're just going to say one trillion, but let's talk about the merits of this lawsuit.

Michael, let's start with you.

SMERCONISH: Hey, Catherine, when I heard it was for $100 trillion, I thought Dr. Evil had filed this lawsuit. But I'm happy that it's been filed, because I like the Bush administration and the fight against terrorism and the job that the president is doing, but I'm uncomfortable with the idea that we're still playing footsie with the Saudis.

And I don't know, as an American, are they our friends, or are they our foes, because the majority of the hijackers were Saudi born; Hamdi, who we are going to discuss, is Saudi born, and I'm hoping that this civil litigation with the discovery process is going to finally bring into focus the issue of whether the Saudis are for us, or against us.

CALLAWAY: What do you think, Jayne -- understand now, this is not only against -- this is not only against members of the royal family, but also against banks and charities that they think were associated with them.

WEINTRAUB: As well it should be, and it's not a matter of money, it's 100 trillion or one trillion, it's a statement, Catherine, and I think that's what Michael was trying to say. This is a statement that we want to seize the assets -- we, the victims family, and all of, I think, the United States wants to see the victims families seize the assets that are here of people and buildings and members of the family that were involved in financing the horrible terrorist act of 9/11 -- and I think that we should just go forward with it.

Originally, of course, legally, the one concern was that it would bar the victim's family from being able to receive compensation from what's called the victim's compensation fund, but that is not going to happen.

So, the only issue is legally, will the plaintiffs be able to prove the nexus. Will they be able to prove that these banks financed the activity...

CALLAWAY: Right.

WEINTRAUB: ... and then, they will be able to collect the money, just like with the PanAm Lockerbee flight.

CALLAWAY: You know, Michael, you mentioned, Yasser Hamdi, let's get to that quickly because we are running out of time. Of course, he was captured in Afghanistan, still being held. A judge said last week that the federal government's got to give more than just as the judge said, "sparse facts," provided so far to explain why they're still holding Hamdi at a -- I am curious what your thought on this is. SMERCONISH: Listen, if the guy were carrying an AK-47 and fighting in Afghanistan for the Taliban against us, I don't need any more fact. The country is at war -- let's treat him -- no, wait a minute -- American?

He's no more American than -- I mean, this is a guy who should be treated like the Japanese or the Germans were in World War II, and I don't care where he was born. If he had an AK-47 in his hands, and was fighting against the United States. He's only an American when he needs the protection now of our courts.

CALLAWAY: Jayne , you think charges need to be filed though right? Something needs to be done, you're saying, instead of just holding him?

SMERCONISH: Me, I'd say hold him.

CALLAWAY: No, Jayne -- I'm talking to Jayne -- you feel like...

WEINTRAUB: Absolutely, charges should be filed, or the case be dismissed. Once we start carving out exceptions, then they win and we lose.

SMERCONISH: Jayne, come on...

WEINTRAUB: They must respect a process of law...

SMERCONISH: ... let them live in your neighborhood...

WEINTRAUB: ... and our Constitution. I'm not here to defend Mr. Hamdi. I'm here to defend the U.S. Constitution and what I live for, and work for, and that's process of law.

SMERCONISH: Right, but while you're wringing your hands and talking about rights, there are people plotting to kill us; that's the bottom line.

Enough of the whole philosophical debate at Berkeley. We're at war, and we'd better face those facts.

CALLAWAY: All right.

WEINTRAUB: I completely disagree, and I think that we need to show the world that the United States courts and due process will prevail.

SMERCONISH: Forget it, while they're bombing us?

WEINTRAUB: Either file the charges or not.

SMERCONISH: Not now. We're at war.

WEINTRAUB: You can't be judge, juror, and executioner, Michael.

SMERCONISH: In war, we can. In war, we can. CALLAWAY: We got a hot roundtable this morning. Michael Smerconish and Jayne Weintraub, thank you both for being with us. We love getting your thoughts -- different though they are, we love them all.

All right, thank you very much for being with us.

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