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CNN Sunday Morning

Legal Roundup

Aired August 25, 2002 - 08:11   ET

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

CAROL LIN, CNN ANCHOR: With some high-profile cases set to return to court this week, we turn to the experts on our legal roundtable. Pamela Hayes, a criminal defense attorney in New York, and Michael Smerconish, a trial attorney, columnist and radio talk show host in Philadelphia. Good morning, guys.
MICHAEL SMERCONISH, TRIAL ATTORNEY: Good morning.

PAMELA HAYES, DEFENSE ATTORNEY: Good morning.

LIN: Let's talk about this Ward Weaver case and the case of these two missing girls up in Oregon. Why would a guy who has a body in his shed or human remains in his shed, agree to a search warrant, to have the FBI comb through his property?

HAYES: Because he's sick. He's clearly out of order on this. He's not working with a lawyer, he's just going off half-cocked. And anybody who would find themselves in this predicament would be running from the authorities, but maybe he wants to be caught.

LIN: Now, that's an interesting theory. Michael, do you agree with that?

SMERCONISH: He's probably a knuckle head. I don't know if there's a better way to describe him than that, who maybe has convinced himself that he played no role in this crime. But that's the mentality that you're apparently dealing with.

LIN: You know, it's so funny. We dance around it, too. We say human remains, haven't been identified. I mean, obviously, for journalistic reasons we can't say that it's one of the two missing girls, but it seems pretty obvious, wouldn't you say, that he's been involved in some sort of criminal activity? I mean, how does a body or human remains end up in your backyard?

HAYES: It seems fairly clearly when you consider it. It's a crime to bury human remains outside of a governmental or municipal cemetery. So if they are, in fact, human remains, whether they're the two missing girls or not, it's a problem for him. And we might find out, not only are there these particular girls' involvement, but he may actually have involvement to other people. You just don't know. And you know, you just have to wait until you get concrete proof that they are human remains and then who they are of.

LIN: You guys either of you ever had to defend a case like this?

SMERCONISH: No.

HAYES: Oh, God, I have. I've had real horrible cases, serial murder case. Had one recently, it was a triple homicide and a quadruple rape. And it's quite frightening.

SMERCONISH: Carol, you can't even bury your dog in your backyard, much less some human body. I mean, that's the state of the law, at least in Pennsylvania.

HAYES: In most states.

LIN: How do you defend this guy? How do you defend this guy, Michael? I mean, let's say you got this case. Here he is, already in jail, charged with raping his 19-year-old son's girlfriend, history of criminal activity. I guess his father was convicted of rape and murder...

SMERCONISH: Ah, well, there's your answer...

LIN: And now we've got a body in the backyard.

SMERCONISH: Wait a minute. There is your answer. First of all, I would never defend him. Second of all, I'm sure you're going to hear much more about the father and the family pattern, and how he had a rough childhood, all the kind of stuff that makes me want to puke even on a Sunday morning where they somehow now try and paint the perpetrator as a sympathetic figure, because of the rough lifestyle that he has had. I'm sure you're going to hear it about Westerfield, too, out in San Diego, but I don't buy into any of that stuff.

LIN: Yeah, penalty phase begins on Wednesday. The prosecution has it nailed. The defense attorneys have to come up with some sort of sympathetic portrait to get this man life in prison. What would you do, Pamela?

HAYES: Oh, I think you have to examine his background. I don't know what type of medical or psychological or emotional type evidence that they have on Mr. Westerfield, but that would probably be their best bet.

That's not to say that it'll work, but as an attorney, you have an obligation to put on a lot of mitigating evidence to see what we can do to prevent this person's life from being taken. We really don't know what the jury was talking about when they were in the room for the amount of time, for approximately 10 days, so...

LIN: Unanimous guilty, guilty on special circumstances, guilty of possessing child pornography. I mean, after 10 days of deliberations...

HAYES: But that's the key, after 10 days of deliberations. I mean, I felt that the prosecution had the evidence to come back in about two days, or a couple of hours, if you must. But you have to find out, what was the holdup, and whether that was based on any sympathy, and if it was...

LIN: That's interesting.

SMERCONISH: I doubt it.

LIN: Might play in his favor. You don't think so, Michael, huh?

SMERCONISH: No, I think that the jurors in this case, they took notes, and they had volumes of notes. And in the post-O.J. era, they wanted to be deliberative. They knew the eyes of the nation were on them. And look, I no longer have to say that he reportedly or allegedly killed Danielle van Dam. He killed her, and now he should be fried. I mean, that's the bottom line. And I, for one, don't want to hear anything at all about Mr. Westerfield and his background, because it isn't going to matter to me.

LIN: You know, the guy did not even blink when the verdicts were read. He didn't even flinch. There was absolutely no reaction. This was the most phlegmatic defendant I've seen in a long, long time. Did he do himself any favors with the jury?

HAYES: You know, I don't know, because you know, only on TV will you see a defendant just basically freak out. Look at Jeffrey Dahmer. He was more catatonic than anyone that I had ever seen, and he was absolutely off the chart. But, you know, I don't think the reaction was so odd. Most people don't show emotions. Their lawyers prepare them. And, you know, that's just who they are. I mean, what do you expect from somebody who is convicted of killing a baby, a child?

LIN: Is there anything that he can do for himself by taking the stand?

SMERCONISH: Well, he obviously did not take the stand -- you mean to do so now in the penalty phase?

LIN: Right, right.

SMERCONISH: I think it's over for him. I really think it's lights out, and it's too late for Mr. Westerfield to do anything at this stage.

LIN: What do you think, Pamela?

HAYES: I guess if he's going to beg for his life, he only has to convince one person on that jury. But he doesn't strike me as the type, quite frankly. I think the jury would be prone to kill him, because if they didn't vote a death penalty in this type of case, when do you use the penalty?

SMERCONISH: Right.

HAYES: That is the ultimate case for that type of punishment.

LIN: You both are so agreeable this morning. You have this sense of warmth and togetherness on a Sunday. Hey, listen, did you guys hear about this custody case? This 13-year-old boy whose mother died, and her male companion is fighting for custody against the biological father. It's been a four-year custody battle, and the judge has decided that this child has the right to choose. The judge says that in this case, Timmy Meldrum (ph) is going to be the winner.

SMERCONISH: I handled a case very similar to this. And I think the law should be that blood is usually thicker than water, but not always. And this may be...

HAYES: Absolutely not.

SMERCONISH: ... this may be one of those "not always" cases. Because he's been raised for the last nine years by someone other than his biological father. He apparently has stated a preference to remain with that individual.

I had a client who died of breast cancer. Her two children were then taken away from her parents, meaning their grandparents, and sent away to a father that they had never known, who had abandoned them, and that was a horrible outcome. So the law cannot be rigid. And I think that in this case, it's not being applied in such rigid fashion.

LIN: Pamela?

HAYES: Well, I think usually in these types of cases, what happens is the child's decision is one of the factors that the court takes into consideration. I don't think it should be the only factor.

But I don't think blood is thicker than water is ever the best solution. I think it's a well-rounded analysis of what would be in the best interests of the child. In this instance, in particular, where you have a 14-year-old express a preference, where he has lived with that person and that person has subrogated as a parent. I don't see the blood is thicker than water argument.

SMERCONISH: Well, I said usually. I said, "usually," and this is not the usual case. I like this outcome so far.

LIN: But get the scenario here. Wait, wait, wait, get the scenario here. What has to happen, like he goes through the school year with his father. He lives with his biological father for a year, and then next July, July 1, he tells the court whom he wants to...

SMERCONISH: That's too much. See, that's too much...

LIN: Can you imagine...

(CROSSTALK)

LIN: ... the leverage this kid has over his father for a year?

SMERCONISH: If he's being raised for the last nine years...

HAYES: If he doesn't want to go, he shouldn't go.

SMERCONISH: If he's being raised for the last nine years by an individual with whom he is comfortable, and he states that preference, and he's now 13 or 14, that's sufficient, and that should end the debate. Carol, there are a lot of crazy domestic situations all around us. And so this case is not so much the anomaly, it's typical of an increasing number of things that are going on.

LIN: Pamela, you get the last word on this.

HAYES: I think what's going to outcome here -- the outcome will be is this child will decide and let the court know it's better off for him to be back with the gentleman who has been being a father for him for the last nine years.

LIN: All right, after he gets a Sony Playstation or two from dad.

SMERCONISH: From both of them. From both of them.

(CROSSTALK)

LIN: All right. Thanks so much, Pamela Hayes, Michael Smerconish, good to see you on the Sunday morning.

SMERCONISH: Thank you.

HAYES: OK, bye-bye.

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