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CNN Sunday Morning
Legal Briefs
Aired December 29, 2002 - 08:24 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: As this year winds down, we'd like to look back at some of the cases that had a major legal impact on Americans, or at least were memorable. Joining us for that are trial lawyer Michael Smerconish, who is in Phoenix, Arizona this morning; Lida Rodriguez-Taseff, she's the president of the ACLU of Miami, but she's actually joining us from Washington, D.C. this morning.
Thank you for being with us.
LIDA RODRIGUEZ-TASEFF, PRESIDENT, ACLU OF MIAMI: We're playing musical chairs.
CALLAWAY: Yes, you are.
MICHAEL SMERCONISH, TRIAL ATTORNEY, TALK SHOW HOST: Good morning.
CALLAWAY: Good morning. Thank you for being with us.
We have a report card for everyone. I've got to say, I've been looking at your grades, and I think Michael's been grading on a curve. And Lida, you give out some tough grades.
RODRIGUEZ-TASEFF: What a surprise.
CALLAWAY: We don't have a lot of subjects, but we're making up for quantity with quality here. With we're going to start with civil liberties.
Michael, let me start with you. How did we do this year?
SMERCONISH: I think we had an "A" this year. We've got a difficult task on our hands of fighting the war against terrorism and also showing a traditional respect for the privacy rights of Americans. I know this is one of those areas where Lida and I will disagree, but I'd argue that on a day-to-day basis, the life style of Americans, our quality of life has been uninterrupted while we've given law enforcement the tools they desperately need to do the job.
CALLAWAY: Lida, are our civil liberties still impact?
RODRIGUEZ-TASEFF: Absolutely not, the war on terror has become the war on civil liberties and the original 10 Amendments have now been comfortably downsized to a manageable six. Gone out of the whole picture is Fourth Amendment, you know, the one that used to protect us against unreasonable search and seizure.
That pesky thing went with a FISA court decision in October and that -- remember, is a Foreign Intelligence Surveillance Act Court. Foreigners, it is supposed to be the people who are spied on under this court. However, FISA has now determined that the attorney general has the power to spy on good old red-blooded Americans.
(CROSS TALK)
RODRIGUEZ-TASEFF: Of course -- go ahead.
CALLAWAY: I see your big fat "F" there, but you know, this is a new year, a new way of life in light of what we saw on 9/11. Shouldn't some things change?
RODRIGUEZ-TASEFF: The thing that should change is the war on terror, the fact that we should be going out and capturing terrorists, not snooping on good, red-blooded Americans who have done nothing wrong.
CALLAWAY: Michael?
SMERCONISH: See, here's where I disagree with Lida, because I think that Lida would only give the country an "A" if we were losing the war against terrorism. And I really think what's remarkable is that on a day-to-day basis, American lives are uninterrupted.
We need to give law enforcement the tools to do the job so that the dots get connected. God forbid, there is a next time. For example, with these foreign students, I want the government to know who they are and where they are. But is that an intrusion? I don't think so.
CALLAWAY: You think it is, Lida?
RODRIGUEZ-TASEFF: Absolutely. Michael, Michael, Michael, you are heavy on emotion, but light on facts. The reality is that the Bush administration recently announced the creation -- by Mr. Poindexter, who is the head of it -- remember him, he's the guy who used to sell weapons and trade them to terrorists in exchange for money that he then used to fight a war in Nicaragua -- a covert war.
SMERCONISH: That has nothing to do with this debate.
RODRIGUEZ-TASEFF: Absolutely. But let's face it. This is the guy who now is heading up the Total Information Awareness Program of the Pentagon. This Total Information Awareness Program is supposed to create a database that is supposed to spy on all Americans. It will know what you had for breakfast, what you ate for lunch, and what you did for dinner. And all in the hands -- the grubby little hands, I might add -- of Mr. Poindexter, who has said in response to questions about what this will do, he said it will give him instant access to American lives.
CALLAWAY: Yes, Michael, don't bite your lip, go ahead. SMERCONISH: Yes, Lida, listen. Eat at Denny's. Keep your nose clean. You're not going to have to worry about Admiral Poindexter. He's only looking at you if you're up to no good. And I want him to do exactly that.
CALLAWAY: All right, we're going to leave it there. Have to go to death penalty.
Michael, I'll let you have the first word on this. You're giving the better grade on it.
SMERCONISH: I'm going to say it's probably about a "B" minus year for the death penalty. The death penalty was on the ropes for a long time in this country, everybody talking about moratoriums and DNA ruling out this person and that person. Of course, there's nobody who is really guilty on death row if you listen to these fellows.
Here's the bottom line. The sniper case has brought back the death penalty with a vengeance. The only reason Virginia is the venue for those cases is because Americans said we've got to have the death penalty in a crime like this.
CALLAWAY: Well, Lida, I know you have a different stance on the death penalty. But where do you think it is standing now? Will it survive?
RODRIGUEZ-TASEFF: It hopefully will die a slow death, no pun intended. But here are the facts on the death penalty over the last year.
Anti-death penalty people had two major victories in the U.S. Supreme Court, the "Adkins vs. Virginia" case, which is the one that outlawed execution of mentally retarded people. Said that these were unconstitutional, makes a lot of sense, right? But it took a Supreme Court decision to get there.
And the other victory was the "Ring Vs. Arizona" case, which is the case that said that juries, not judges, who are elected officials, should be the ones determining who should live and who should die.
But on the losing side of the death penalty was the Supreme Court's refusal to consider, reconsider its 1989 decision to allow the execution of minors. That was the Kevin Stanford case. The court, in a 5 to 4 decision said we will not grant certiorarari -- meaning, we will not hear this case -- even though it was ripe for reconsideration.
CALLAWAY: Due to equal time, I'll give you one more comment on that, Michael.
SMERCONISH: And it is a very -- that last case is a very wise decision in light of the fact, look at the sniper case. If you believe the early reports that are coming out from law enforcement, it was the minor who was the trigger man in most of those instances. Is that a person who because he's 16, 17, we want to say, well, you get a free pass from the death penalty? Not in my world. CALLAWAY: OK, we could debate the death penalty forever, between you two.
SMERCONISH: True.
CALLAWAY: But you somewhat agree on where it stands on whether or not it will survive. Corporate accountability is one that surprised me. Lida, let's start with you, giving it a "D."
RODRIGUEZ-TASEFF: I'm giving it a "D" for this reason. The hallmark, the central tenet of our capitalist system is the little guy, the individual investor. Nothing happened over the last year really to protect the individual investor, and I realize that people in Congress fell all over themselves and so did the president to sign into law these new measures that are designed to increase accountability and accounting and also create new safeguards. The reality is, however, that those are not designed to protect the little guy, the investor.
CALLAWAY: Yeah, I was expecting an "F" out of you, Lida. You disappointed me. Millions of people losing money, millions of dollars being lost here and you give a "D"?
RODRIGUEZ-TASEFF: Well, because hope springs eternal. I'm hoping that in the next Congress, we'll pass new legislation designed to protect the little guy, maybe increase, double the amount people are allowed to contribute to their 401(k)s and IRAs so they can get back into the market.
CALLAWAY: All right, Michael, you're giving it a "C." You think enough's been done?
SMERCONISH: Thank goodness Lida was not a law school professor of mine. I may not have made it out of that process. I'm giving it a "C" for this reason.
RODRIGUEZ-TASEFF: I'm sending you back.
SMERCONISH: There were so many headlines generated for so-called corporate scandal. And I don't deny that it was there. I just question whether there was more corporate scandal this year than any other year. It's almost like the child abduction cases of last summer. They were the headline story every single day. And then the statistics said kids are not being abducted at a greater rate this summer than they have been in the past.
I have a suspicion, it was the same in the corporate world, a lot of bad actors, but there have always been a lot of bad actors. A "C."
CALLAWAY: All right, we've got to say what you thought the most memorable case of the year was. It was interesting to me that you had such different cases. Lida, let's start with you. What will you take from 2002?
RODRIGUEZ-TASEFF: Padilla versus Bush. Padilla as in Jose Padilla, the U.S. citizen who was thrown in jail without counsel, without access to his lawyers and held incommunicado for over 265 days. This is the biggest constitutional crisis since Nixon left the White House.
CALLAWAY: And your most memorable, Michael?
SMERCONISH: By the way, the country's at war. I have no problem with Padilla being in prison for that long without a lawyer. Ira Einhorn in Philadelphia. Here is a guy who was a '60s hippy guru who murdered a woman named Holly Maddux. He then on bail headed over to Europe. The French knew that he was there for a while and they refused to let him go. But he came back to Philadelphia, was retried, and today sits exactly where he should, in prison for the rest of his life.
CALLAWAY: Michael, you just don't like to see anyone get away with it.
SMERCONISH: Not him, that's for sure.
CALLAWAY: All right, what about the frivolous cases of the year. There were quite a few, Lida. Tough decision, which one will stand out with you?
RODRIGUEZ-TASEFF: Oh, 270-pound Mr. Caesar Barber versus Burger King, McDonald's, Wendy's and KFC. Absolutely. You can't beat this one in terms of size or weight.
And the problem with this case is I've got to say this is a case that ignores individual responsibility. The lawyers ought to be deprived of their licenses as a result of this one. They're using the tobacco lawsuits to allege that Mr. Barber was not warned about what went into a hamburger, or a hot dog or his French fries, and that as a result he had two heart attacks and he's diabetic and he's 270 pounds, and somehow it's the fault of corporate America.
However, fat is not the fault of corporate America here. The only people responsible are the lawyers for bringing this frivolous, fatty lawsuit.
CALLAWAY: And Michael, what was your "I can't believe it" lawsuit for you?
SMERCONISH: Let me tell you, Winona Ryder in a criminal context. I'll never go see a Winona Ryder movie again in my life because I'm so tired of seeing her in a Los Angeles courtroom, especially with that goofy expression on her mouth. Why in the world there wasn't a plea agreement in this case that would have spared the judicial system a week of a trial and all those resources over a couple of grand that she stuffed in her purse?
CALLAWAY: Oh, come on, you know, they wanted the trial. She didn't.
RODRIGUEZ-TASEFF: You know, that is so inconsistent. Jose Padilla can rot in jail, but Winona, we don't want to prosecute her?
SMERCONISH: The country is at war; Winona is not a member of al Qaeda. I mean, it's consistent, come on.
CALLAWAY: Yeah, but then you wouldn't have anything else to argue about, you two.
All right, Michael and Lida, thank you for being with us today.
SMERCONISH: Happy new year.
RODRIGUEZ-TASEFF: Happy new year.
CALLAWAY: Happy new year to you both. We'll have just as much to talk about next year.
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 December 29, 2002 - 08:24 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
CATHERINE CALLAWAY, CNN ANCHOR: As this year winds down, we'd like to look back at some of the cases that had a major legal impact on Americans, or at least were memorable. Joining us for that are trial lawyer Michael Smerconish, who is in Phoenix, Arizona this morning; Lida Rodriguez-Taseff, she's the president of the ACLU of Miami, but she's actually joining us from Washington, D.C. this morning.
Thank you for being with us.
LIDA RODRIGUEZ-TASEFF, PRESIDENT, ACLU OF MIAMI: We're playing musical chairs.
CALLAWAY: Yes, you are.
MICHAEL SMERCONISH, TRIAL ATTORNEY, TALK SHOW HOST: Good morning.
CALLAWAY: Good morning. Thank you for being with us.
We have a report card for everyone. I've got to say, I've been looking at your grades, and I think Michael's been grading on a curve. And Lida, you give out some tough grades.
RODRIGUEZ-TASEFF: What a surprise.
CALLAWAY: We don't have a lot of subjects, but we're making up for quantity with quality here. With we're going to start with civil liberties.
Michael, let me start with you. How did we do this year?
SMERCONISH: I think we had an "A" this year. We've got a difficult task on our hands of fighting the war against terrorism and also showing a traditional respect for the privacy rights of Americans. I know this is one of those areas where Lida and I will disagree, but I'd argue that on a day-to-day basis, the life style of Americans, our quality of life has been uninterrupted while we've given law enforcement the tools they desperately need to do the job.
CALLAWAY: Lida, are our civil liberties still impact?
RODRIGUEZ-TASEFF: Absolutely not, the war on terror has become the war on civil liberties and the original 10 Amendments have now been comfortably downsized to a manageable six. Gone out of the whole picture is Fourth Amendment, you know, the one that used to protect us against unreasonable search and seizure.
That pesky thing went with a FISA court decision in October and that -- remember, is a Foreign Intelligence Surveillance Act Court. Foreigners, it is supposed to be the people who are spied on under this court. However, FISA has now determined that the attorney general has the power to spy on good old red-blooded Americans.
(CROSS TALK)
RODRIGUEZ-TASEFF: Of course -- go ahead.
CALLAWAY: I see your big fat "F" there, but you know, this is a new year, a new way of life in light of what we saw on 9/11. Shouldn't some things change?
RODRIGUEZ-TASEFF: The thing that should change is the war on terror, the fact that we should be going out and capturing terrorists, not snooping on good, red-blooded Americans who have done nothing wrong.
CALLAWAY: Michael?
SMERCONISH: See, here's where I disagree with Lida, because I think that Lida would only give the country an "A" if we were losing the war against terrorism. And I really think what's remarkable is that on a day-to-day basis, American lives are uninterrupted.
We need to give law enforcement the tools to do the job so that the dots get connected. God forbid, there is a next time. For example, with these foreign students, I want the government to know who they are and where they are. But is that an intrusion? I don't think so.
CALLAWAY: You think it is, Lida?
RODRIGUEZ-TASEFF: Absolutely. Michael, Michael, Michael, you are heavy on emotion, but light on facts. The reality is that the Bush administration recently announced the creation -- by Mr. Poindexter, who is the head of it -- remember him, he's the guy who used to sell weapons and trade them to terrorists in exchange for money that he then used to fight a war in Nicaragua -- a covert war.
SMERCONISH: That has nothing to do with this debate.
RODRIGUEZ-TASEFF: Absolutely. But let's face it. This is the guy who now is heading up the Total Information Awareness Program of the Pentagon. This Total Information Awareness Program is supposed to create a database that is supposed to spy on all Americans. It will know what you had for breakfast, what you ate for lunch, and what you did for dinner. And all in the hands -- the grubby little hands, I might add -- of Mr. Poindexter, who has said in response to questions about what this will do, he said it will give him instant access to American lives.
CALLAWAY: Yes, Michael, don't bite your lip, go ahead. SMERCONISH: Yes, Lida, listen. Eat at Denny's. Keep your nose clean. You're not going to have to worry about Admiral Poindexter. He's only looking at you if you're up to no good. And I want him to do exactly that.
CALLAWAY: All right, we're going to leave it there. Have to go to death penalty.
Michael, I'll let you have the first word on this. You're giving the better grade on it.
SMERCONISH: I'm going to say it's probably about a "B" minus year for the death penalty. The death penalty was on the ropes for a long time in this country, everybody talking about moratoriums and DNA ruling out this person and that person. Of course, there's nobody who is really guilty on death row if you listen to these fellows.
Here's the bottom line. The sniper case has brought back the death penalty with a vengeance. The only reason Virginia is the venue for those cases is because Americans said we've got to have the death penalty in a crime like this.
CALLAWAY: Well, Lida, I know you have a different stance on the death penalty. But where do you think it is standing now? Will it survive?
RODRIGUEZ-TASEFF: It hopefully will die a slow death, no pun intended. But here are the facts on the death penalty over the last year.
Anti-death penalty people had two major victories in the U.S. Supreme Court, the "Adkins vs. Virginia" case, which is the one that outlawed execution of mentally retarded people. Said that these were unconstitutional, makes a lot of sense, right? But it took a Supreme Court decision to get there.
And the other victory was the "Ring Vs. Arizona" case, which is the case that said that juries, not judges, who are elected officials, should be the ones determining who should live and who should die.
But on the losing side of the death penalty was the Supreme Court's refusal to consider, reconsider its 1989 decision to allow the execution of minors. That was the Kevin Stanford case. The court, in a 5 to 4 decision said we will not grant certiorarari -- meaning, we will not hear this case -- even though it was ripe for reconsideration.
CALLAWAY: Due to equal time, I'll give you one more comment on that, Michael.
SMERCONISH: And it is a very -- that last case is a very wise decision in light of the fact, look at the sniper case. If you believe the early reports that are coming out from law enforcement, it was the minor who was the trigger man in most of those instances. Is that a person who because he's 16, 17, we want to say, well, you get a free pass from the death penalty? Not in my world. CALLAWAY: OK, we could debate the death penalty forever, between you two.
SMERCONISH: True.
CALLAWAY: But you somewhat agree on where it stands on whether or not it will survive. Corporate accountability is one that surprised me. Lida, let's start with you, giving it a "D."
RODRIGUEZ-TASEFF: I'm giving it a "D" for this reason. The hallmark, the central tenet of our capitalist system is the little guy, the individual investor. Nothing happened over the last year really to protect the individual investor, and I realize that people in Congress fell all over themselves and so did the president to sign into law these new measures that are designed to increase accountability and accounting and also create new safeguards. The reality is, however, that those are not designed to protect the little guy, the investor.
CALLAWAY: Yeah, I was expecting an "F" out of you, Lida. You disappointed me. Millions of people losing money, millions of dollars being lost here and you give a "D"?
RODRIGUEZ-TASEFF: Well, because hope springs eternal. I'm hoping that in the next Congress, we'll pass new legislation designed to protect the little guy, maybe increase, double the amount people are allowed to contribute to their 401(k)s and IRAs so they can get back into the market.
CALLAWAY: All right, Michael, you're giving it a "C." You think enough's been done?
SMERCONISH: Thank goodness Lida was not a law school professor of mine. I may not have made it out of that process. I'm giving it a "C" for this reason.
RODRIGUEZ-TASEFF: I'm sending you back.
SMERCONISH: There were so many headlines generated for so-called corporate scandal. And I don't deny that it was there. I just question whether there was more corporate scandal this year than any other year. It's almost like the child abduction cases of last summer. They were the headline story every single day. And then the statistics said kids are not being abducted at a greater rate this summer than they have been in the past.
I have a suspicion, it was the same in the corporate world, a lot of bad actors, but there have always been a lot of bad actors. A "C."
CALLAWAY: All right, we've got to say what you thought the most memorable case of the year was. It was interesting to me that you had such different cases. Lida, let's start with you. What will you take from 2002?
RODRIGUEZ-TASEFF: Padilla versus Bush. Padilla as in Jose Padilla, the U.S. citizen who was thrown in jail without counsel, without access to his lawyers and held incommunicado for over 265 days. This is the biggest constitutional crisis since Nixon left the White House.
CALLAWAY: And your most memorable, Michael?
SMERCONISH: By the way, the country's at war. I have no problem with Padilla being in prison for that long without a lawyer. Ira Einhorn in Philadelphia. Here is a guy who was a '60s hippy guru who murdered a woman named Holly Maddux. He then on bail headed over to Europe. The French knew that he was there for a while and they refused to let him go. But he came back to Philadelphia, was retried, and today sits exactly where he should, in prison for the rest of his life.
CALLAWAY: Michael, you just don't like to see anyone get away with it.
SMERCONISH: Not him, that's for sure.
CALLAWAY: All right, what about the frivolous cases of the year. There were quite a few, Lida. Tough decision, which one will stand out with you?
RODRIGUEZ-TASEFF: Oh, 270-pound Mr. Caesar Barber versus Burger King, McDonald's, Wendy's and KFC. Absolutely. You can't beat this one in terms of size or weight.
And the problem with this case is I've got to say this is a case that ignores individual responsibility. The lawyers ought to be deprived of their licenses as a result of this one. They're using the tobacco lawsuits to allege that Mr. Barber was not warned about what went into a hamburger, or a hot dog or his French fries, and that as a result he had two heart attacks and he's diabetic and he's 270 pounds, and somehow it's the fault of corporate America.
However, fat is not the fault of corporate America here. The only people responsible are the lawyers for bringing this frivolous, fatty lawsuit.
CALLAWAY: And Michael, what was your "I can't believe it" lawsuit for you?
SMERCONISH: Let me tell you, Winona Ryder in a criminal context. I'll never go see a Winona Ryder movie again in my life because I'm so tired of seeing her in a Los Angeles courtroom, especially with that goofy expression on her mouth. Why in the world there wasn't a plea agreement in this case that would have spared the judicial system a week of a trial and all those resources over a couple of grand that she stuffed in her purse?
CALLAWAY: Oh, come on, you know, they wanted the trial. She didn't.
RODRIGUEZ-TASEFF: You know, that is so inconsistent. Jose Padilla can rot in jail, but Winona, we don't want to prosecute her?
SMERCONISH: The country is at war; Winona is not a member of al Qaeda. I mean, it's consistent, come on.
CALLAWAY: Yeah, but then you wouldn't have anything else to argue about, you two.
All right, Michael and Lida, thank you for being with us today.
SMERCONISH: Happy new year.
RODRIGUEZ-TASEFF: Happy new year.
CALLAWAY: Happy new year to you both. We'll have just as much to talk about next year.
TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com
