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CNN Live Sunday

Interview With Michael Smerconish, Jayne Weintraub

Aired October 26, 2003 - 10:17   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.


HEIDI COLLINS, CNN ANCHOR: Some high-profile cases unfold in court this week. In Virginia, the trial of John Allen Muhammad is scheduled to continue tomorrow. He is accused of shooting a man to death at a gas station in one of the D.C.-area sniper attacks.
And in Texas, the bizarre case of Robert Durst, a member of the Durst family real estate empire in New York City. He is accused of killing his neighbor, then chopping up the body and throwing it into Galveston Bay.

Two other court cases are expected to dominate the legal headlines as early as tomorrow. Terri Schiavo's husband may challenge Florida Governor Jeb Bush's intervention in his wife's right-to-die case. The governor ordered reinsertion of the feeding tube that keeps the woman alive, even though she's severely brain damaged.

In Colorado, prosecutors are asking for a delay in basketball star Kobe Bryant's next court appearance. He's scheduled to enter a plea to a sexual assault charge on November 10th.

To analyze these cases and more, we turn to criminal defense attorney Jayne Weintraub joining us from Miami. Good morning, Jayne.

JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY: Good morning, Heidi.

COLLINS: And our regular CNN contributor, trial attorney and talk show host, Michael Smerconish in Philadelphia. Michael, good morning to you, as well.

MICHAEL SMERCONISH, TALK SHOW HOST: Good morning.

COLLINS: I want to begin with the Terri Schiavo case. And we have all talked about this before and what an incredibly sad ordeal it is for the families involved, of course. But I want to ask you if Governor Jeb Bush intervened appropriately -- Michael.

SMERCONISH: No. I think he intervened inappropriately. I can certainly understand what motivated him to do it. But I'll be very surprised if this law can survive a constitutional challenge, because it seems to run afoul of the separation of powers doctrine.

Here you have the legislature stepping in and attempting to end run the judicial branch really without regard for what this woman would have wanted, but what they'd like to see the outcome. And I don't see how it survives. COLLINS: But Michael, where is the documentation for that? No one has been able to show any documentation of what her wishes really were.

SMERCONISH: I know. But you know, Heidi, the Florida courts have taken a look at this. They've done the fact-finding, not the legislature. And each time that they've looked at it, they've come to the conclusion that this is an articulation of her wishes.

I can tell you this, I'm going to watch "LARRY KING LIVE" tomorrow night, because I want to eyeball Michael Schiavo. So much negative has been said about him. I want to see what the guy actually looks and sounds like.

COLLINS: Jayne, was Governor Bush within the legal bounds of the law in doing what he did?

WEINTRAUB: Absolutely not, at the risk of agreeing with Michael. He has violated the Constitution not only by the Separation of Powers Act, there's a right of privacy that's constitutionally guaranteed in Florida. There's a right to die statute.

Now, what you were talking about before is there was evidence, Heidi, taken in a courtroom by the judge listening to Michael Schiavo saying that he had discussed this with his wife...

COLLINS: Evidence taken, but not a living will and no paper documentation.

WEINTRAUB: There was no written legal living will, but there was evidence that the conversation took place. Why wouldn't he be telling the truth? And based on that, coupled with the medical evidence, she's in an irreversible vegetative state.

That was the evidence that the court took. But that's not the issue. The issue is that Jeb Bush can't go in there, our governor, like Clark Kent, change a cape and come out of a special session of the legislature and have a new bill passed called Terri's Bill to please the political platform. You can't do that.

COLLINS: So Michael, did he actually break the law here?

SMERCONISH: Well, I don't know that he broke the law. I just think that it gets dangerous when you have a legislature enact a law to address one person or one situation. I mean, what you want to have is a legislature enacting laws for all of us. You want the courts applying a case-by-case review.

And that's -- we've had a complete reversal in this particular instance. And I think that's what both Jayne and I are saying.

COLLINS: OK. Guys, we've got to move on, unfortunately. I'm sorry, but we've got to get to the Kobe Bryant case. A lot of people still talking about that one indeed.

We know that a delay has been asked for, scheduled to enter his plea on November 10th now, instead. We also know that he received quite a warm welcome on the court, the basketball court, that is. Some people wondering if he should be playing at all. Jayne, your thoughts on that?

WEINTRAUB: I think he should be playing. Remember, this isn't like he's playing ball for a sport. This is his livelihood. This is how he makes a living, this is how he'll provide for his family for the rest of his life.

Yes, I think he should go play ball and make a living. I think that he is not guilty. He should act like he's not guilty. To do to the contrary and not to play ball would be hanging his head and look like he's guilty. I think he should go on his business.

COLLINS: OK. Michael, why the need for the court delay here?

SMERCONISH: Well, I think, man, they're in a panic. They should be in a panic. Because the net winner of that preliminary hearing, even though Kobe's been held for trial, Kobe was the winner.

People are walking around now questioning aspects of the prosecution case, as opposed to questioning the conduct of Kobe Bryant. And that's why I'll bet the prosecution wants some more time to sort it out.

COLLINS: All right.

WEINTRAUB: Well, it was extraordinary that the judge issued an eight-page order on a probable cause hearing. Extraordinary. I mean, normally, it's just one word, granted or denied. And normally it is granted.

COLLINS: Interesting. All right. Jayne Weintraub and Michael Smerconish, we certainly appreciate your time this morning, guys.

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 October 26, 2003 - 10:17   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
HEIDI COLLINS, CNN ANCHOR: Some high-profile cases unfold in court this week. In Virginia, the trial of John Allen Muhammad is scheduled to continue tomorrow. He is accused of shooting a man to death at a gas station in one of the D.C.-area sniper attacks.
And in Texas, the bizarre case of Robert Durst, a member of the Durst family real estate empire in New York City. He is accused of killing his neighbor, then chopping up the body and throwing it into Galveston Bay.

Two other court cases are expected to dominate the legal headlines as early as tomorrow. Terri Schiavo's husband may challenge Florida Governor Jeb Bush's intervention in his wife's right-to-die case. The governor ordered reinsertion of the feeding tube that keeps the woman alive, even though she's severely brain damaged.

In Colorado, prosecutors are asking for a delay in basketball star Kobe Bryant's next court appearance. He's scheduled to enter a plea to a sexual assault charge on November 10th.

To analyze these cases and more, we turn to criminal defense attorney Jayne Weintraub joining us from Miami. Good morning, Jayne.

JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY: Good morning, Heidi.

COLLINS: And our regular CNN contributor, trial attorney and talk show host, Michael Smerconish in Philadelphia. Michael, good morning to you, as well.

MICHAEL SMERCONISH, TALK SHOW HOST: Good morning.

COLLINS: I want to begin with the Terri Schiavo case. And we have all talked about this before and what an incredibly sad ordeal it is for the families involved, of course. But I want to ask you if Governor Jeb Bush intervened appropriately -- Michael.

SMERCONISH: No. I think he intervened inappropriately. I can certainly understand what motivated him to do it. But I'll be very surprised if this law can survive a constitutional challenge, because it seems to run afoul of the separation of powers doctrine.

Here you have the legislature stepping in and attempting to end run the judicial branch really without regard for what this woman would have wanted, but what they'd like to see the outcome. And I don't see how it survives. COLLINS: But Michael, where is the documentation for that? No one has been able to show any documentation of what her wishes really were.

SMERCONISH: I know. But you know, Heidi, the Florida courts have taken a look at this. They've done the fact-finding, not the legislature. And each time that they've looked at it, they've come to the conclusion that this is an articulation of her wishes.

I can tell you this, I'm going to watch "LARRY KING LIVE" tomorrow night, because I want to eyeball Michael Schiavo. So much negative has been said about him. I want to see what the guy actually looks and sounds like.

COLLINS: Jayne, was Governor Bush within the legal bounds of the law in doing what he did?

WEINTRAUB: Absolutely not, at the risk of agreeing with Michael. He has violated the Constitution not only by the Separation of Powers Act, there's a right of privacy that's constitutionally guaranteed in Florida. There's a right to die statute.

Now, what you were talking about before is there was evidence, Heidi, taken in a courtroom by the judge listening to Michael Schiavo saying that he had discussed this with his wife...

COLLINS: Evidence taken, but not a living will and no paper documentation.

WEINTRAUB: There was no written legal living will, but there was evidence that the conversation took place. Why wouldn't he be telling the truth? And based on that, coupled with the medical evidence, she's in an irreversible vegetative state.

That was the evidence that the court took. But that's not the issue. The issue is that Jeb Bush can't go in there, our governor, like Clark Kent, change a cape and come out of a special session of the legislature and have a new bill passed called Terri's Bill to please the political platform. You can't do that.

COLLINS: So Michael, did he actually break the law here?

SMERCONISH: Well, I don't know that he broke the law. I just think that it gets dangerous when you have a legislature enact a law to address one person or one situation. I mean, what you want to have is a legislature enacting laws for all of us. You want the courts applying a case-by-case review.

And that's -- we've had a complete reversal in this particular instance. And I think that's what both Jayne and I are saying.

COLLINS: OK. Guys, we've got to move on, unfortunately. I'm sorry, but we've got to get to the Kobe Bryant case. A lot of people still talking about that one indeed.

We know that a delay has been asked for, scheduled to enter his plea on November 10th now, instead. We also know that he received quite a warm welcome on the court, the basketball court, that is. Some people wondering if he should be playing at all. Jayne, your thoughts on that?

WEINTRAUB: I think he should be playing. Remember, this isn't like he's playing ball for a sport. This is his livelihood. This is how he makes a living, this is how he'll provide for his family for the rest of his life.

Yes, I think he should go play ball and make a living. I think that he is not guilty. He should act like he's not guilty. To do to the contrary and not to play ball would be hanging his head and look like he's guilty. I think he should go on his business.

COLLINS: OK. Michael, why the need for the court delay here?

SMERCONISH: Well, I think, man, they're in a panic. They should be in a panic. Because the net winner of that preliminary hearing, even though Kobe's been held for trial, Kobe was the winner.

People are walking around now questioning aspects of the prosecution case, as opposed to questioning the conduct of Kobe Bryant. And that's why I'll bet the prosecution wants some more time to sort it out.

COLLINS: All right.

WEINTRAUB: Well, it was extraordinary that the judge issued an eight-page order on a probable cause hearing. Extraordinary. I mean, normally, it's just one word, granted or denied. And normally it is granted.

COLLINS: Interesting. All right. Jayne Weintraub and Michael Smerconish, we certainly appreciate your time this morning, guys.

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