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CNN Sunday Morning

Legal Roundtable

Aired September 22, 2002 - 08:25   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.


CATHERINE CALLAWAY, CNN ANCHOR: A surveillance tape and a mother accused of beating her child. That's where we begin our legal roundtable this week. And joining us is criminal defense attorney Jayne Weintraub and attorney and radio talk show host Michael Smerconish.
Thank you both for being with us again.

MICHAEL SMERCONISH, TRIAL ATTORNEY: Good morning.

CALLAWAY: Well, you've seen the video -- I'm sure you have a number of times this past week. Now Madelyne Gorman Toogood out of jail on a $5,000 bond -- turned herself in yesterday in connection with this videotaped beating of her daughter.

Should she have been released on a $5,000 bond? I know they -- the prosecution had been hoping for something like a $500,000 bond. What about you, Michael?

SMERCONISH: I don't think she's going anywhere. The first thing that Mrs. Toogood needs is a name change to maybe to TooBad.

And, Catherine, this is one of those cases where typically we come on in the legal segment and we say, "Well, we need to know all of the evidence and the other side."

There's nothing else that you need to know about this case other than what's depicted on that videotape. This woman is unfit to be a parent. The shame is that that poor little girl probably misses her mommy. So somehow there's got to be a visitation arrangement but no way should she be raising that child.

CALLAWAY: Jayne, should that child have been removed and put in foster care?

JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY: Well, those are two different statements. And the issue is -- as a mother, of course, I am horrified but as a lawyer we don't know what her mental state was. We don't know what was going on and what caused her to snap.

Should she have -- should the child have been removed temporarily? Of course, for everybody's protection and for the safety and welfare of everybody concerned. However, does that mean that she can never be a parent again? Of course not.

SMERCONISH: But, Jayne ... WEINTRAUB: Is it something that she perhaps needs some help ...

CALLAWAY: But what about the other two kids? That's the question here. Her other two children -- still in the care of the husband. Supposedly they live together. Why remove one and not the other?

SMERCONISH: Hey -- this woman is unbalanced. Jayne, I've been scratching my head trying to think, "Well, what could have precipitated this?" Who cares? Really who cares what precipitated this?

WEINTRAUB: We don't know what happened and we don't know that there weren't any injuries here.

SMERCONISH: That child ...

WEINTRAUB: The woman snapped.

SMERCONISH: ... but that child could not have done anything that would necessitate a beating of the kind that we saw on video. I don't care what happened.

WEINTRAUB: We're talking about the mental state of the woman, Michael

SMERCONISH: That's an excuse, man. I'm sick of ...

WEINTRAUB: And, as you know, she's the defendant. It's not an abuse excuse.

SMERCONISH: But the next thing I'm going to hear is that ...

WEINTRAUB: It's a legal justification.

SMERCONISH: No. I'm going to hear that she was abused as a child, that she was divorced.

WEINTRAUB: Michael, are you going to let me talk?

SMERCONISH: Go ahead.

WEINTRAUB: An imbalance is just that -- it might be an illness, it might be a chemical imbalance which can be treated.

SMERCONISH: So what?

WEINTRAUB: And as (UNINTELLIGIBLE) correctly points out -- excuse me -- and as Catherine correctly points out, the fact that there are two other children that are healthy, that are thriving, that are nourished that are living in the home says to me perhaps Martha, the four year old, should have stayed in the home with her siblings and her dad and perhaps the defendant should have been removed temporarily from the home.

CALLAWAY: But, Jayne, we don't know if the two children are healthy. We don't have video tape of what's going on at home. This is all -- still has to be decided.

WEINTRAUB: But, Catherine, don't you see this is almost becoming a horrible thing that is going around our country starting from Andrea Yates on down -- these video tapes, these beatings, these horrible, horrible incidents with children? There has to be -- it's almost epidemic-wise.

We have to start looking at the cause and treat it as the disease that it is.

CALLAWAY: Well, I don't know. If you start looking at the bigger picture here -- all right. But when you've got a video tape that you've got a specific case, that's the one that has to be dealt with now.

SMERCONISH: Catherine, some among us are bad seeds. And I'm tired of hearing that they were abused as kids or that they came from broken homes or that there was a pattern of divorce. Enough already.

The bad seeds who are out there -- we've got to punish them, take their kids away from them if they're unfit parents. I've seen enough about his case to render a verdict.

WEINTRAUB: Michael, you just want to have an executing squad and -- boom -- that's it -- they're bad seeds -- good bye.

SMERCONISH: For a woman like this -- yes.

CALLAWAY: But let's look at the other side of this case -- the sister, Margaret, now charged with not reporting child abuse because she was there -- witnessed this alleged beating. You obviously disagree that she should be charged with anything. Jayne?

WEINTRAUB: Catherine, it's absurd -- are we going to put an affirmative duty on our neighbor to report a crime that we think or may be thinking is happening?

First of all, we don't even know that the sister realized that it was a crime. Second of all, the child might have been OK.

We've all seen parents hit or spank or beat their child in a shopping center. How horrified are you when you see that? I want to cringe and yell at the mom. I keep walking -- it's not my business. But do we want to...

CALLAWAY: Michael...

WEINTRAUB: ... do we want to impose an affirmative duty...

SMERCONISH: Yes.

WEINTRAUB: ... on witnesses, on relatives, to turn their relatives in...

SMERCONISH: Can I now speak, Jayne?

WEINTRAUB: Is this Big Brother?

CALLAWAY: Let Michael step in here. Michael, go ahead.

SMERCONISH: Jayne, are you telling me that it's too much to ask a sister -- that would mean it's the aunt of this child -- to get involved and say, hey, what the heck are you doing? Back off that kid. You're hurting her. She's 4 years old. I don't think that's too much.

WEINTRAUB: No, no, no, no, it's that she did not call the police that's the crime, Michael. You don't know whether or not she said anything to Ms. Toogood. You don't know that at all.

CALLAWAY: Let's talk about the fate of Toogood at this point. She also has been charged with shoplifting in Fort Worth, Texas. This is not connected with the videotape incident. She apparently missed a court date in that. Is this going to affect at all how she's treated in the case that involves her daughter? Let's start with you, Michael.

SMERCONISH: I don't think that it will. I think that probably that evidence will not come in. I think that there's enough already on the videotape that the prosecution doesn't even need to make the reach to try and bring in her five-finger discount.

CALLAWAY: What about you, Jayne?

WEINTRAUB: Well, looking at it from a defense standpoint, they very well might want to bring it in to show the pattern of misconduct, a pattern of misguidedness, of disease, of illness -- whatever this woman is suffering from. I don't know, nor do you nor does anyone, until a full psychological profile is done what the real problem is here. But obviously, she has a problem, obviously, and it needs (UNINTELLIGIBLE).

CALLAWAY: We have got one minute left. And I have to ask you about the David Westerfield sentence. Two weeks of deliberations, we finally get the sentence of death for the kidnapping and killing of 7- year-old Danielle van Dam. Is that the right sentence, Michael?

SMERCONISH: Oh, it's absolutely the right sentence. But this is a purely academic debate. Unfortunately, California does not execute those that it should. This is a man who ought to be put down, but unfortunately, it will never happen.

CALLAWAY: Do you think it is going to happen, Jayne? What do you -- we've got a Superior Court judge here who could reduce this to life in prison without parole.

WEINTRAUB: I don't think he will, unless he's afraid it will be reversed for disregarding the court's instruction. They could not reach a verdict, they made it very clear. The judge said, wait, we are going to have a conference. And in that period, they did not wait. They obviously further deliberated and then came out with a sentence of death. So what do I think? I think that just like this case was put on a fast track to stop the world and to show everyone we're going to get this guy, I think that justice will keep going and not (ph) be served, and I think he will be executed.

CALLAWAY: Jayne Weintraub, Michael Smerconish, thank you very much for being with us this morning, as always.

SMERCONISH: Thank you.

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 September 22, 2002 - 08:25   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
CATHERINE CALLAWAY, CNN ANCHOR: A surveillance tape and a mother accused of beating her child. That's where we begin our legal roundtable this week. And joining us is criminal defense attorney Jayne Weintraub and attorney and radio talk show host Michael Smerconish.
Thank you both for being with us again.

MICHAEL SMERCONISH, TRIAL ATTORNEY: Good morning.

CALLAWAY: Well, you've seen the video -- I'm sure you have a number of times this past week. Now Madelyne Gorman Toogood out of jail on a $5,000 bond -- turned herself in yesterday in connection with this videotaped beating of her daughter.

Should she have been released on a $5,000 bond? I know they -- the prosecution had been hoping for something like a $500,000 bond. What about you, Michael?

SMERCONISH: I don't think she's going anywhere. The first thing that Mrs. Toogood needs is a name change to maybe to TooBad.

And, Catherine, this is one of those cases where typically we come on in the legal segment and we say, "Well, we need to know all of the evidence and the other side."

There's nothing else that you need to know about this case other than what's depicted on that videotape. This woman is unfit to be a parent. The shame is that that poor little girl probably misses her mommy. So somehow there's got to be a visitation arrangement but no way should she be raising that child.

CALLAWAY: Jayne, should that child have been removed and put in foster care?

JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY: Well, those are two different statements. And the issue is -- as a mother, of course, I am horrified but as a lawyer we don't know what her mental state was. We don't know what was going on and what caused her to snap.

Should she have -- should the child have been removed temporarily? Of course, for everybody's protection and for the safety and welfare of everybody concerned. However, does that mean that she can never be a parent again? Of course not.

SMERCONISH: But, Jayne ... WEINTRAUB: Is it something that she perhaps needs some help ...

CALLAWAY: But what about the other two kids? That's the question here. Her other two children -- still in the care of the husband. Supposedly they live together. Why remove one and not the other?

SMERCONISH: Hey -- this woman is unbalanced. Jayne, I've been scratching my head trying to think, "Well, what could have precipitated this?" Who cares? Really who cares what precipitated this?

WEINTRAUB: We don't know what happened and we don't know that there weren't any injuries here.

SMERCONISH: That child ...

WEINTRAUB: The woman snapped.

SMERCONISH: ... but that child could not have done anything that would necessitate a beating of the kind that we saw on video. I don't care what happened.

WEINTRAUB: We're talking about the mental state of the woman, Michael

SMERCONISH: That's an excuse, man. I'm sick of ...

WEINTRAUB: And, as you know, she's the defendant. It's not an abuse excuse.

SMERCONISH: But the next thing I'm going to hear is that ...

WEINTRAUB: It's a legal justification.

SMERCONISH: No. I'm going to hear that she was abused as a child, that she was divorced.

WEINTRAUB: Michael, are you going to let me talk?

SMERCONISH: Go ahead.

WEINTRAUB: An imbalance is just that -- it might be an illness, it might be a chemical imbalance which can be treated.

SMERCONISH: So what?

WEINTRAUB: And as (UNINTELLIGIBLE) correctly points out -- excuse me -- and as Catherine correctly points out, the fact that there are two other children that are healthy, that are thriving, that are nourished that are living in the home says to me perhaps Martha, the four year old, should have stayed in the home with her siblings and her dad and perhaps the defendant should have been removed temporarily from the home.

CALLAWAY: But, Jayne, we don't know if the two children are healthy. We don't have video tape of what's going on at home. This is all -- still has to be decided.

WEINTRAUB: But, Catherine, don't you see this is almost becoming a horrible thing that is going around our country starting from Andrea Yates on down -- these video tapes, these beatings, these horrible, horrible incidents with children? There has to be -- it's almost epidemic-wise.

We have to start looking at the cause and treat it as the disease that it is.

CALLAWAY: Well, I don't know. If you start looking at the bigger picture here -- all right. But when you've got a video tape that you've got a specific case, that's the one that has to be dealt with now.

SMERCONISH: Catherine, some among us are bad seeds. And I'm tired of hearing that they were abused as kids or that they came from broken homes or that there was a pattern of divorce. Enough already.

The bad seeds who are out there -- we've got to punish them, take their kids away from them if they're unfit parents. I've seen enough about his case to render a verdict.

WEINTRAUB: Michael, you just want to have an executing squad and -- boom -- that's it -- they're bad seeds -- good bye.

SMERCONISH: For a woman like this -- yes.

CALLAWAY: But let's look at the other side of this case -- the sister, Margaret, now charged with not reporting child abuse because she was there -- witnessed this alleged beating. You obviously disagree that she should be charged with anything. Jayne?

WEINTRAUB: Catherine, it's absurd -- are we going to put an affirmative duty on our neighbor to report a crime that we think or may be thinking is happening?

First of all, we don't even know that the sister realized that it was a crime. Second of all, the child might have been OK.

We've all seen parents hit or spank or beat their child in a shopping center. How horrified are you when you see that? I want to cringe and yell at the mom. I keep walking -- it's not my business. But do we want to...

CALLAWAY: Michael...

WEINTRAUB: ... do we want to impose an affirmative duty...

SMERCONISH: Yes.

WEINTRAUB: ... on witnesses, on relatives, to turn their relatives in...

SMERCONISH: Can I now speak, Jayne?

WEINTRAUB: Is this Big Brother?

CALLAWAY: Let Michael step in here. Michael, go ahead.

SMERCONISH: Jayne, are you telling me that it's too much to ask a sister -- that would mean it's the aunt of this child -- to get involved and say, hey, what the heck are you doing? Back off that kid. You're hurting her. She's 4 years old. I don't think that's too much.

WEINTRAUB: No, no, no, no, it's that she did not call the police that's the crime, Michael. You don't know whether or not she said anything to Ms. Toogood. You don't know that at all.

CALLAWAY: Let's talk about the fate of Toogood at this point. She also has been charged with shoplifting in Fort Worth, Texas. This is not connected with the videotape incident. She apparently missed a court date in that. Is this going to affect at all how she's treated in the case that involves her daughter? Let's start with you, Michael.

SMERCONISH: I don't think that it will. I think that probably that evidence will not come in. I think that there's enough already on the videotape that the prosecution doesn't even need to make the reach to try and bring in her five-finger discount.

CALLAWAY: What about you, Jayne?

WEINTRAUB: Well, looking at it from a defense standpoint, they very well might want to bring it in to show the pattern of misconduct, a pattern of misguidedness, of disease, of illness -- whatever this woman is suffering from. I don't know, nor do you nor does anyone, until a full psychological profile is done what the real problem is here. But obviously, she has a problem, obviously, and it needs (UNINTELLIGIBLE).

CALLAWAY: We have got one minute left. And I have to ask you about the David Westerfield sentence. Two weeks of deliberations, we finally get the sentence of death for the kidnapping and killing of 7- year-old Danielle van Dam. Is that the right sentence, Michael?

SMERCONISH: Oh, it's absolutely the right sentence. But this is a purely academic debate. Unfortunately, California does not execute those that it should. This is a man who ought to be put down, but unfortunately, it will never happen.

CALLAWAY: Do you think it is going to happen, Jayne? What do you -- we've got a Superior Court judge here who could reduce this to life in prison without parole.

WEINTRAUB: I don't think he will, unless he's afraid it will be reversed for disregarding the court's instruction. They could not reach a verdict, they made it very clear. The judge said, wait, we are going to have a conference. And in that period, they did not wait. They obviously further deliberated and then came out with a sentence of death. So what do I think? I think that just like this case was put on a fast track to stop the world and to show everyone we're going to get this guy, I think that justice will keep going and not (ph) be served, and I think he will be executed.

CALLAWAY: Jayne Weintraub, Michael Smerconish, thank you very much for being with us this morning, as always.

SMERCONISH: Thank you.

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