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CNN Live Sunday

Legal Roundtable

Aired October 05, 2003 - 10:41   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.


KELLI ARENA, CNN ANCHOR: As we have been telling you, Kobe Bryant gets ready for another day in court. Zacarias Moussaoui presses for access to captured al Qaeda leaders. These are the topics of today's legal roundtable.
From Philadelphia, trial attorney, columnist, radio talk show host, and CNN contributor, Michael Smerconish. And from Miami, criminal defense attorney Jayne Weintraub. Thanks for joining us.

JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY: My pleasure.

ARENA: Why don't we start with Kobe? October 9, date of pretrial hearing, will we even see a pretrial hearing?

WEINTRAUB: Well, I think that we will see a pretrial hearing. I do not believe that the hearing will be waved. I think there's a lot to gain by the preliminary hearing, even by cross-examining the detective in the case. I think that the issues here really are, was it a terrible loss to Kobe Bryant that the woman will not testify? And I don't think that it was an unexpected ruling that the court ruled she does not have to testify at this juncture. The other ruling was that the medical records of the accuser will not be released at this time, and I think that's what is important.

ARENA: At this time, because that doesn't mean forever and always.

WEINTRAUB: Well, because at this juncture, remember, this is only probable cause determination, that means just a little evidence to hold it over for trial. We're talking about, at the time of trial, then the issue of credibility of the accuser becomes much more relevant and realistic to evaluate that they will be turned over to the defense.

ARENA: Michael, do you think Kobe will have his day in court?

MICHAEL SMERCONISH, CNN CONTRIBUTOR: No, I don't think so. I disagree with Jayne. I think that the preliminary hearing will not take place on Thursday. It's the call completely of the defense, so that if Kobe's attorneys wish, even 15 minutes before this thing gets under way they don't want to do it, they don't have to move forward. I don't see the upside for Kobe Bryant's defense team in having a problem hearing, because the last thing they want to do is give Jayne Weintraub and I fodder to come back here next Sunday and talk about that which came out in court. They want it nice and quiet, the less conversation in the community the possible, so they can get a fair and impartial jury, and a preliminary hearing does not help them at this stage.

ARENA: We're running out of time. I want to talk about Moussaoui, very important development last week in that case. Many are calling this a major setback for the government. Michael, do you agree?

SMERCONISH: Yes, I do agree and the government is trying to have its cake and eat it, too. What they are trying to do, Kelli, is to treat this fellow as if he's in a military tribunal by limiting his rights, when in fact he's in a civilian court. Zacarias Moussaoui says I want to chat with other members of al Qaeda, that's the only way I can defend myself, and the government is trying to preclude that, even though it's a right under the 6th Amendment that he should probably have.

ARENA: Jayne, what do you think happens next in this case?

WEINTRAUB: I think that the government will appeal the ruling to the 4th Circuit Court of Appeals.

What happened here, obviously, is that the court has now ruled out the possibility of the government seeking the death penalty for two reasons. One, that the crimes are not going to support it as she has narrowed them down. But more importantly, the prosecution has denied him access to develop evidence that would support his theory of defense. He has claimed that there are witnesses that he has been denied access to, that would exculpate him, in fact, find him not guilty and mitigate against the death penalty.

The judge, in an interest of balance because prosecutors refuse to acknowledge her order that he be given access to these witnesses, the judge has now said, then you can't seek the death penalty. That's number one. That's a big blow to the prosecution. Normally the prosecutors want to avoid government witnesses from being interviewed by the defense. Here, they don't even want him to have a chance to develop a defense. I think that the government will be forced into an appeal situation, and I think they will be successful in the 4th Circuit.

ARENA: The government thinks it may get a more sympathetic ear.

SMERCONISH: It's the most conservative appellate court, arguably, in the country, and that's why they would feel comfortable going to the 4th Circuit. But the alternative is, they could just move forward with a watered down case against Moussaoui ...

WEINTRAUB: Always an option.

SMERCONISH: ... and I think that's the route they'll take.

ARENA: OK, guys, I want to thank you so much. Michael Smerconish, Jayne Weintraub, have a good day.

SMERCONISH: Thanks.

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 October 5, 2003 - 10:41   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
KELLI ARENA, CNN ANCHOR: As we have been telling you, Kobe Bryant gets ready for another day in court. Zacarias Moussaoui presses for access to captured al Qaeda leaders. These are the topics of today's legal roundtable.
From Philadelphia, trial attorney, columnist, radio talk show host, and CNN contributor, Michael Smerconish. And from Miami, criminal defense attorney Jayne Weintraub. Thanks for joining us.

JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY: My pleasure.

ARENA: Why don't we start with Kobe? October 9, date of pretrial hearing, will we even see a pretrial hearing?

WEINTRAUB: Well, I think that we will see a pretrial hearing. I do not believe that the hearing will be waved. I think there's a lot to gain by the preliminary hearing, even by cross-examining the detective in the case. I think that the issues here really are, was it a terrible loss to Kobe Bryant that the woman will not testify? And I don't think that it was an unexpected ruling that the court ruled she does not have to testify at this juncture. The other ruling was that the medical records of the accuser will not be released at this time, and I think that's what is important.

ARENA: At this time, because that doesn't mean forever and always.

WEINTRAUB: Well, because at this juncture, remember, this is only probable cause determination, that means just a little evidence to hold it over for trial. We're talking about, at the time of trial, then the issue of credibility of the accuser becomes much more relevant and realistic to evaluate that they will be turned over to the defense.

ARENA: Michael, do you think Kobe will have his day in court?

MICHAEL SMERCONISH, CNN CONTRIBUTOR: No, I don't think so. I disagree with Jayne. I think that the preliminary hearing will not take place on Thursday. It's the call completely of the defense, so that if Kobe's attorneys wish, even 15 minutes before this thing gets under way they don't want to do it, they don't have to move forward. I don't see the upside for Kobe Bryant's defense team in having a problem hearing, because the last thing they want to do is give Jayne Weintraub and I fodder to come back here next Sunday and talk about that which came out in court. They want it nice and quiet, the less conversation in the community the possible, so they can get a fair and impartial jury, and a preliminary hearing does not help them at this stage.

ARENA: We're running out of time. I want to talk about Moussaoui, very important development last week in that case. Many are calling this a major setback for the government. Michael, do you agree?

SMERCONISH: Yes, I do agree and the government is trying to have its cake and eat it, too. What they are trying to do, Kelli, is to treat this fellow as if he's in a military tribunal by limiting his rights, when in fact he's in a civilian court. Zacarias Moussaoui says I want to chat with other members of al Qaeda, that's the only way I can defend myself, and the government is trying to preclude that, even though it's a right under the 6th Amendment that he should probably have.

ARENA: Jayne, what do you think happens next in this case?

WEINTRAUB: I think that the government will appeal the ruling to the 4th Circuit Court of Appeals.

What happened here, obviously, is that the court has now ruled out the possibility of the government seeking the death penalty for two reasons. One, that the crimes are not going to support it as she has narrowed them down. But more importantly, the prosecution has denied him access to develop evidence that would support his theory of defense. He has claimed that there are witnesses that he has been denied access to, that would exculpate him, in fact, find him not guilty and mitigate against the death penalty.

The judge, in an interest of balance because prosecutors refuse to acknowledge her order that he be given access to these witnesses, the judge has now said, then you can't seek the death penalty. That's number one. That's a big blow to the prosecution. Normally the prosecutors want to avoid government witnesses from being interviewed by the defense. Here, they don't even want him to have a chance to develop a defense. I think that the government will be forced into an appeal situation, and I think they will be successful in the 4th Circuit.

ARENA: The government thinks it may get a more sympathetic ear.

SMERCONISH: It's the most conservative appellate court, arguably, in the country, and that's why they would feel comfortable going to the 4th Circuit. But the alternative is, they could just move forward with a watered down case against Moussaoui ...

WEINTRAUB: Always an option.

SMERCONISH: ... and I think that's the route they'll take.

ARENA: OK, guys, I want to thank you so much. Michael Smerconish, Jayne Weintraub, have a good day.

SMERCONISH: Thanks.

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