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CNN Sunday Morning
Legal Briefs
Aired January 19, 2003 - 18:11 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.
MILES O'BRIEN, CNN ANCHOR: That's our new legal music. From the teenage suspect in the Washington-area sniper attacks to the friendly fire case against two U.S. pilots, let's dive into legal briefs. From Philadelphia, trial attorney and CNN Contributor Michael Smerconish. And from Washington, Lida Rodriguez-Taseff. She is president of the ACLU of Miami. Good morning to you both.
MICHAEL SMERCONISH, TRIAL ATTORNEY: Hey, Miles.
LIDA RODRIGUEZ-TASEFF, PRESIDENT, ACLU OF MIAMI: Good morning.
O'BRIEN: All right. Let's start with friendly fire. And I'll tell you what, let's show the tape right away. I want to set this up by saying this is a fairly long tape, which is captured from the cockpits of the airplanes involved in all of this. And it indicates a tremendous amount of confusion about exactly who was on the ground around Kandahar on that night when these two pilots were involved in this. But with that lead-up, and with them constantly asking controllers who might be in that area, let's listen in for just a moment.
(BEGIN AUDIO TAPE)
UNIDENTIFIED MALE: I've got some men on a road. And it looks like a piece of artillery firing at us. I am rolling in, in self- defense. Bombs away. Breaking (ph) left.
UNIDENTIFIED MALE: (UNINTELLIGIBLE).
UNIDENTIFIED MALE: Boss man, disengage. Friendlies, Kandahar.
(END VIDEO CLIP)
O'BRIEN: All right. "Boss man disengage." Can you imagine what that must have been like to hear that in those cockpits? Lida, my read on this is that these pilots are being scapegoated. Would you go with that?
RODRIGUEZ-TASEFF: I absolutely would. I mean, what's happening is this is a terrible tragedy. We should feel terrible. Four lost lives, eight injured.
But what we have here is scapegoating for two reasons. One: amphetamines. The military feeds them to these pilots to keep them awake. These are supposed to be under the DEA listing. These are schedule 2 (ph) drugs in the same line as cocaine. Our own ex drug czar, Robert DuPont, has said that...
O'BRIEN: Lida, you know what? I don't buy this whole go pill argument. To me, it's an issue of what the pilots knew at that moment.
They were in an active war zone. They see live fire. Why they're doing a live fire exercise in that spot is a question that I haven't heard a good answer to. Michael, are drugs the issue here or is this an issue of command and control and communication?
SMERCONISH: No, the latter. And the key line is, "I am rolling in, in self-defense." Miles, I know we're running a family-oriented program here, so I'll clean it up and I will say stuff happens in war. Instead of what I'm really thinking.
And you know, last summer, it was a wedding in Afghanistan, where a lot of people lost their lives. These are tragic situations, but these guys were not rookies. As a matter of fact, Major Schmidt is a former Navy top gun pilot. They didn't know who was on the ground.
He was told to hold fire, he waited 90 seconds, thought he was being fired upon again. There was fire on the ground, but nobody knew that it was a Canadian exercise. It's self-defense. And it's a shame that they're being prosecuted.
O'BRIEN: Lida, let me ask you this: if in this unfortunate instance it had been U.S. troops that were the victims of this friendly fire, would we be seeing this trial that we're seeing right now -- or potential trial?
RODRIGUEZ-TASEFF: Absolutely not, because the military would be covering up for itself. And I think Michael brings up a really good point, and that is the wedding incident where we killed 48 people and injured 118. At that time, Donald Rumsfeld said stuff happens. And here again nobody was prosecuted in that incident. The only reason people are being prosecuted here is because the Canadians can take care of themselves and they're making a big deal out of this.
But the problem for the military is that, as a result of this prosecution, they're having their little book opened, and the fact that they're using amphetamines in the military is being made very clear. And I want to go back to something you said, Miles, earlier, because I think the reality is these pilots screwed up. They made a mistake. But the reality is, is that's what happens when you are on a drug that makes you crazy and paranoid.
O'BRIEN: All right. Well maybe we can all agree there was a mistake. But there were probably a series of mistakes, as there always is in these instances. And to single out the pilots is where I have a problem.
Let's move on to Malvo. Seventeen years old. Michael, your turn. Seventeen years old. Clearly, given the facts of this case and the strong body of evidence out there, right up to fingerprints on the weapon...
SMERCONISH: He's not some dopey teenager just sitting in the back seat. I mean, that's the picture that is emerging thus far.
O'BRIEN: OK. Wasn't his nickname sniper in school? I think it was.
SMERCONISH: That's one of the reported facts that has come out. The other is the fingerprints that you mentioned. A third is that it's his voice that prosecutors say twice called in and said we're the guys who are doing it. And it's his handwriting apparently on this note that demands $10 million.
So I think if you put all of that together, that's the reason why he's appropriately being tried as an adult. He's 17 years old.
O'BRIEN: Lida.
RODRIGUEZ-TASEFF: Bad facts make bad law. The bottom line is it's politics versus punishment. And politics won out here. This isn't about...
O'BRIEN: What does politics have to do with it, Lida?
RODRIGUEZ-TASEFF: Well John Ashcroft realizes that in a nation where the number of people supporting executing juveniles is diminishing every day...
O'BRIEN: Well wait a minute. Lida, let's talk for a moment -- can we take the death penalty out of this for just a moment and just talk about whether he should be tried as an adult first?
RODRIGUEZ-TASEFF: But wait a minute, Miles. We can't take the death penalty out of this, because the reason he's being tried as an adult is because John Ashcroft is determined to seek the death penalty here. And I'm not necessarily saying that these people -- this guy should be punished. He absolutely should be punished if he was responsible for these horrible acts.
But the question is not so much whether he should be punished, but whether we should play politics that are going to have an impact on other cases. The reality is, is that this decision of prosecuting Malvo as an adult is going to affect Malvo, but it's also going to affect hundreds and thousands of kids who shouldn't be prosecuted as adults.
O'BRIEN: How so? Explain how that works.
RODRIGUEZ-TASEFF: Because that's the way the law is. You create precedent. You create a precedent for...
O'BRIEN: But isn't there plenty of precedent already on the books for trying 17-year-olds as adults and putting them on death row?
RODRIGUEZ-TASEFF: You ask a very good question. And the numbers show it. Only 28 percent of Americans support executing juveniles. Sixteen states have already made it illegal to execute them. The nation is -- we are about to put a case in front of the Supreme Court to decide the issue of whether or not 16 and 17-year-olds should be executed. The nation is changing. We oppose it.
O'BRIEN: Michael.
SMERCONISH: Miles, I'm not worried about establishing a precedent that says if you're 17 years old and you play an active role in the death, the murder, the execution of 13 individuals, you're going to pay with your life. To me that's an appropriate precedent.
RODRIGUEZ-TASEFF: But Michael you know as well as I do that that's not the precedent that's being set. The precedent that's being set is executing 17-year-olds is OK. Not all this other stuff that you would like to put into the law which isn't going in there.
SMERCONISH: Lida, your personal pendulum has to swing away from the rights of perpetrators and to the rights of victims.
O'BRIEN: Let me just pose this one final thought to you, Lida.
RODRIGUEZ-TASEFF: That's so unfair.
O'BRIEN: If he was tried as a juvenile, put in juvenile hall, in theory, he could be released at age 18, correct?
RODRIGUEZ-TASEFF: In theory, he could be released at age 18, but that's not what would happen. What they would do is they would continue holding him probably for the rest of his life if it is proven that he did exactly what they're saying he did and if his voice happens to be the voice on these tapes.
O'BRIEN: All right.
SMERCONISH: Maybe we just need to give him anger management. You know maybe that's the appropriate solution.
RODRIGUEZ-TASEFF: Maybe we need to give him amphetamines. Come on, Michael. That's ridiculous.
O'BRIEN: All right. It's no go time. Appreciate it, folks. Michael Smerconish and Lida Rodriguez-Taseff, thanks very much.
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 January 19, 2003 - 18:11 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
MILES O'BRIEN, CNN ANCHOR: That's our new legal music. From the teenage suspect in the Washington-area sniper attacks to the friendly fire case against two U.S. pilots, let's dive into legal briefs. From Philadelphia, trial attorney and CNN Contributor Michael Smerconish. And from Washington, Lida Rodriguez-Taseff. She is president of the ACLU of Miami. Good morning to you both.
MICHAEL SMERCONISH, TRIAL ATTORNEY: Hey, Miles.
LIDA RODRIGUEZ-TASEFF, PRESIDENT, ACLU OF MIAMI: Good morning.
O'BRIEN: All right. Let's start with friendly fire. And I'll tell you what, let's show the tape right away. I want to set this up by saying this is a fairly long tape, which is captured from the cockpits of the airplanes involved in all of this. And it indicates a tremendous amount of confusion about exactly who was on the ground around Kandahar on that night when these two pilots were involved in this. But with that lead-up, and with them constantly asking controllers who might be in that area, let's listen in for just a moment.
(BEGIN AUDIO TAPE)
UNIDENTIFIED MALE: I've got some men on a road. And it looks like a piece of artillery firing at us. I am rolling in, in self- defense. Bombs away. Breaking (ph) left.
UNIDENTIFIED MALE: (UNINTELLIGIBLE).
UNIDENTIFIED MALE: Boss man, disengage. Friendlies, Kandahar.
(END VIDEO CLIP)
O'BRIEN: All right. "Boss man disengage." Can you imagine what that must have been like to hear that in those cockpits? Lida, my read on this is that these pilots are being scapegoated. Would you go with that?
RODRIGUEZ-TASEFF: I absolutely would. I mean, what's happening is this is a terrible tragedy. We should feel terrible. Four lost lives, eight injured.
But what we have here is scapegoating for two reasons. One: amphetamines. The military feeds them to these pilots to keep them awake. These are supposed to be under the DEA listing. These are schedule 2 (ph) drugs in the same line as cocaine. Our own ex drug czar, Robert DuPont, has said that...
O'BRIEN: Lida, you know what? I don't buy this whole go pill argument. To me, it's an issue of what the pilots knew at that moment.
They were in an active war zone. They see live fire. Why they're doing a live fire exercise in that spot is a question that I haven't heard a good answer to. Michael, are drugs the issue here or is this an issue of command and control and communication?
SMERCONISH: No, the latter. And the key line is, "I am rolling in, in self-defense." Miles, I know we're running a family-oriented program here, so I'll clean it up and I will say stuff happens in war. Instead of what I'm really thinking.
And you know, last summer, it was a wedding in Afghanistan, where a lot of people lost their lives. These are tragic situations, but these guys were not rookies. As a matter of fact, Major Schmidt is a former Navy top gun pilot. They didn't know who was on the ground.
He was told to hold fire, he waited 90 seconds, thought he was being fired upon again. There was fire on the ground, but nobody knew that it was a Canadian exercise. It's self-defense. And it's a shame that they're being prosecuted.
O'BRIEN: Lida, let me ask you this: if in this unfortunate instance it had been U.S. troops that were the victims of this friendly fire, would we be seeing this trial that we're seeing right now -- or potential trial?
RODRIGUEZ-TASEFF: Absolutely not, because the military would be covering up for itself. And I think Michael brings up a really good point, and that is the wedding incident where we killed 48 people and injured 118. At that time, Donald Rumsfeld said stuff happens. And here again nobody was prosecuted in that incident. The only reason people are being prosecuted here is because the Canadians can take care of themselves and they're making a big deal out of this.
But the problem for the military is that, as a result of this prosecution, they're having their little book opened, and the fact that they're using amphetamines in the military is being made very clear. And I want to go back to something you said, Miles, earlier, because I think the reality is these pilots screwed up. They made a mistake. But the reality is, is that's what happens when you are on a drug that makes you crazy and paranoid.
O'BRIEN: All right. Well maybe we can all agree there was a mistake. But there were probably a series of mistakes, as there always is in these instances. And to single out the pilots is where I have a problem.
Let's move on to Malvo. Seventeen years old. Michael, your turn. Seventeen years old. Clearly, given the facts of this case and the strong body of evidence out there, right up to fingerprints on the weapon...
SMERCONISH: He's not some dopey teenager just sitting in the back seat. I mean, that's the picture that is emerging thus far.
O'BRIEN: OK. Wasn't his nickname sniper in school? I think it was.
SMERCONISH: That's one of the reported facts that has come out. The other is the fingerprints that you mentioned. A third is that it's his voice that prosecutors say twice called in and said we're the guys who are doing it. And it's his handwriting apparently on this note that demands $10 million.
So I think if you put all of that together, that's the reason why he's appropriately being tried as an adult. He's 17 years old.
O'BRIEN: Lida.
RODRIGUEZ-TASEFF: Bad facts make bad law. The bottom line is it's politics versus punishment. And politics won out here. This isn't about...
O'BRIEN: What does politics have to do with it, Lida?
RODRIGUEZ-TASEFF: Well John Ashcroft realizes that in a nation where the number of people supporting executing juveniles is diminishing every day...
O'BRIEN: Well wait a minute. Lida, let's talk for a moment -- can we take the death penalty out of this for just a moment and just talk about whether he should be tried as an adult first?
RODRIGUEZ-TASEFF: But wait a minute, Miles. We can't take the death penalty out of this, because the reason he's being tried as an adult is because John Ashcroft is determined to seek the death penalty here. And I'm not necessarily saying that these people -- this guy should be punished. He absolutely should be punished if he was responsible for these horrible acts.
But the question is not so much whether he should be punished, but whether we should play politics that are going to have an impact on other cases. The reality is, is that this decision of prosecuting Malvo as an adult is going to affect Malvo, but it's also going to affect hundreds and thousands of kids who shouldn't be prosecuted as adults.
O'BRIEN: How so? Explain how that works.
RODRIGUEZ-TASEFF: Because that's the way the law is. You create precedent. You create a precedent for...
O'BRIEN: But isn't there plenty of precedent already on the books for trying 17-year-olds as adults and putting them on death row?
RODRIGUEZ-TASEFF: You ask a very good question. And the numbers show it. Only 28 percent of Americans support executing juveniles. Sixteen states have already made it illegal to execute them. The nation is -- we are about to put a case in front of the Supreme Court to decide the issue of whether or not 16 and 17-year-olds should be executed. The nation is changing. We oppose it.
O'BRIEN: Michael.
SMERCONISH: Miles, I'm not worried about establishing a precedent that says if you're 17 years old and you play an active role in the death, the murder, the execution of 13 individuals, you're going to pay with your life. To me that's an appropriate precedent.
RODRIGUEZ-TASEFF: But Michael you know as well as I do that that's not the precedent that's being set. The precedent that's being set is executing 17-year-olds is OK. Not all this other stuff that you would like to put into the law which isn't going in there.
SMERCONISH: Lida, your personal pendulum has to swing away from the rights of perpetrators and to the rights of victims.
O'BRIEN: Let me just pose this one final thought to you, Lida.
RODRIGUEZ-TASEFF: That's so unfair.
O'BRIEN: If he was tried as a juvenile, put in juvenile hall, in theory, he could be released at age 18, correct?
RODRIGUEZ-TASEFF: In theory, he could be released at age 18, but that's not what would happen. What they would do is they would continue holding him probably for the rest of his life if it is proven that he did exactly what they're saying he did and if his voice happens to be the voice on these tapes.
O'BRIEN: All right.
SMERCONISH: Maybe we just need to give him anger management. You know maybe that's the appropriate solution.
RODRIGUEZ-TASEFF: Maybe we need to give him amphetamines. Come on, Michael. That's ridiculous.
O'BRIEN: All right. It's no go time. Appreciate it, folks. Michael Smerconish and Lida Rodriguez-Taseff, thanks very much.
TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com
