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Attorneys at Law

Aired June 1, 2003 - 10:00   ET


JEFFREY TOOBIN, CNN LEGAL ANALYST: I'm CNN legal analyst, Jeffrey Toobin, with Court TV's Lisa Bloom and CNN contributor, Michael Smerconish. Welcome to "Attorneys at Law."
LISA BLOOM, COURT TV: We'll review today's top legal stories from the suspected Louisiana serial killer to jailing war-protesting nuns to lobbying for a pardon for a dead comedian.

MICHAEL SMERCONISH, CNN CONTRIBUTOR: Let's begin with the big case, the Laci Peterson murder investigation. The Stanislaus County district attorney's office is filing a motion to unseal the autopsy reports for Laci Peterson and her unborn son, Connor. A California judge has ordered prosecutors to give the defense wiretap records of 69 phone calls that husband and suspect, Scott Peterson, made to a lawyer after his pregnant wife disappeared last December. And defense lawyer Mark Geragos says he'll decide by the mid-July preliminary hearing whether to seek a change of venue because of the avalanche of publicity surrounding this case.

BLOOM: Now we'd like to well in former prosecutor, Wendy Murphy. She's joining us from Boston. Wendy, what about it? Is the prosecution right? Should the full autopsy report now be released?

WENDY MURPHY, FORMER PROSECUTOR: Absolutely, Lisa, it serves absolutely no good, no public interest. It's not fair for Laci's family to have nuggets of information that really feed the defense frenzy about the crazy cult theory. It's just not fair.

BLOOM: What about Scott Peterson's right to a fair trial? If all this salacious information out in the public, is that going to damage his right to get a fair hearing?

MURPHY: Look, Scott Peterson has a right to fair trial. He doesn't have a right to mislead the potential jury pool by the selective, strategic leaking of tiny bits of information from the autopsy that really are make the public very anxious, suggesting this was a noose around the baby's neck, that there was a slice in the baby's chest.

That sounds gory, much more consistent with the kind of cult killing than that Scott is guilty, but in context, once the 25 pages of autopsy are released to the public, I have no doubt what we're going to learn is that the piece of tape that was around the baby's neck wasn't a strangulation or a noose, it was debris from the ocean. We know that, Lisa, because, among other things, underneath this piece of tape there was absolutely no injury to the child's neck. No bruising. No soft tissue injury. You know, if this had been a strangulation, you would have seen some kind of damage to the neck.

TOOBIN: Wendy, doesn't this smell a little to you, as it does to me, like prosecution panic? Here there is sort of a one-day story about this partial leak, and the prosecution decides they need to get everything out in the public. Are they going to be responding like this to every news story? This is going to go on for months. Why not just try your case in court? Why not keep the case in seal as the judge wants to do and leave it at that?

MURPHY: Because, frankly, I think that the prosecution has been very patient. This isn't the first time the defense has leaked some silly bit of information designed to whip the public into a frenzy and taint the jury pool. First that he was, you know, that he was looking for the real killer. Then he was calling to the crazies asking this mystery woman to come forward. Then it was this nonsense about the cult.

The prosecution was silent in response to the comments made to the public that were unacceptable and unethical. I think it took a lot of patience for the prosecution to wait this long to say, that's it. We've had it! No more of the Geragos dog and pony show. We want the public to know the truth.

And you know what? The prosecutor would not have asked for this autopsy report to be disseminated to the public because it is going to be harmful to Scott Peterson, but they deserve it.

SMERCONISH: I have to tell you, I don't fault the prosecution, and I don't fault the defense. I fault the news media. We are in a post-war Iraq situation where the media giant, it needs to get fed. This is all such ridiculous information. Tape found around the neck of the baby? I've never been in the San Francisco Bay, but I know if I went swimming in the (UNINTELLIGIBLE) back in Philadelphia, I'd probably come out with a tire wrapped around my waist and a couple of beer cans around my ears. I mean, so what?

TOOBIN: I'm happy to beat up the news media all the time, but I actually think, look, we're in the news business. We want to find out what happened. There is tremendous public interest in this case. This is a significant development in this case. Cause of death, the manner of death has been a mystery. Why shouldn't they report this stuff.

BLOOM: The question is, why is the media paying so much attention this case? It's a new era, I think, of high profile litigation. It's a high profile case. There's no celebrity involved. But the public is interested. It's the ultimate reality show, isn't it? There's a love triangle, there's a handsome young guy who might get humiliated at the end. We are riveting to it, and I don't think we should be ashamed of that.

SMERCONISH: Show me some weapons of mass destruction, and we are all going to be saying, Laci and Scott who? It's the story of the day because there's nothing else in the news. What do you expect? That that baby is going to come out of the water and have not debris wrapped around some part of the baby's body? BLOOM: Wendy, what about that? Wendy, I want to ask you about the role of the media in this case because six of the first six hearings in this are all pertaining to the media. Where's the hearing about the bail? Where is the hearing about suppression of evidence? Has the media taken over this case?

MURPHY: Well, one of the interesting things about the media's role here is the extent to which they are being manipulated, and they like it. It is, to some extent, a moral and ethical dilemma for the media. They do have to sell ads.

They do want to feed the public's hunger for more information at this case, but at what cost? To the integrity of the judicial system. At what cost? To the integrity and the privacy and the sanctity of Laci's family? They learned about these gruesome details from the media! The media should rise to the occasion, not act as an agent of the defense leaks in this case, not participate in tainting the jury pool. They should refuse to do this.

TOOBIN: Wendy, in my journalistic career, approximately 100 percent of the people I deal with have some agenda with me, whether it's politicians, lawyers, anybody. So I don't think the answer to that is not report what these people have to say. The answer is report what they have to say in context. I don't think anybody's misled by how this has been reported.

MURPHY: But, Jeffrey, but how can you report these tidbits of information in context without the full report?

TOOBIN: That's just what we're doing right here.

MURPHY: It's journalistically unethical.

SMERCONISH: Jeffrey, we have embedded reporters at this stage in both the prosecution and in the defense team. Listen, here's all you need to been this case, if I can say that as a man who believes one should never change their hairstyle, which would you take a look at the changing pictures of this guy? Do you need to know anything more? I mean, it's like O.J. having a disguise what, to go to Disneyland with his kids or some such?

BLOOM: Or Michael Jackson.

SMERCONISH: Yes, that's all. It begins and end with the changing face of Scott Peterson.

BLOOM: But, you know, his defense attorney, Mark Geragos, has changed his defense theory of the case about as many times as Scott Peterson has changed his hairstyle. Every day, there's a new theory of the case. There are some suspicious figures in a brown van that needs to be followed up on. They a mystery woman. There's a satanic cult maybe being considered. Now, what kind of defense attorney floats theories first and looks evidence for support them second?

TOOBIN: I think he has made a bizarre series of decisions in terms of saying that he's going to solve the case. Most defense attorneys are happy with saying, look, beyond a reasonable doubt, that's all we want to try to choose -- Wendy, do you know why he's doing this? Do you know why he's saying he'll solve the case, much less, you know, prove his client not guilty?

MURPHY: Well, Mark Geragos is by no means telling us the truth, and no one is going to expect him to. He lied in the Winona Ryder case. He said there was no videotape of her stealing. There was videotape of her stealing! He said he would produce receipts that she purchased the clothes. He didn't produce those receipts because there weren't any.

So, I think one of the problems with Mark Geragos here is all these things he's doing, no doubt about it, are designed to be the red herring that distracts us from thinking of the common sense overwhelming suspicion.

BLOOM: Wendy, is the public holding attorneys in such esteem, at this point, that we have no credibility? That Mark Geragos, who you point out, has made all kinds of promises he doesn't deliver on? And he's considered in high self esteem, and a high-profile attorney that everyone is thrilled to have.

MURPHY: Not for long. You watch. One of the problems with a defense approach like this is that so many people are watching, if he doesn't deliver on these goods and if it turns out that the autopsy completely debunks this satanic myth theory that we've had 24 hours of frenzy about in the news cycle, then you know what will happen to Mark Geragos when he gets in front of the jury in this case? They're going to say, we don't believe a word you say, and that's sad for his client.

TOOBIN: We shall see, we shall see. Well, Wendy, thank you so much for sharing your cautiously-expressed insight in this case.

MURPHY: Thanks a lot.

TOOBIN: Up next, what does religion have to do with renewing your driver's license? That case is on the docket when we return.


BLOOM: Welcome back. The district attorney in Baton Rouge, Louisiana, is seeking the death penalty against accused serial killer, Derrick Todd Lee, who was arrested Tuesday night in Atlanta after a two-day manhunt. Lee is charged with first-degree murder in the rape and strangling of Louisiana State University grad student, Carrie Yoder. He is also linked through DNA evidence to the killings of four other women since September 2001.

TOOBIN: You know, I think this case illustrates a big thing that's going to in law enforcement. I think fingerprints are on their way out, and DNA's on the way in. You know, we have this weird thing now where it's OK to take people's fingerprints. People have no worries about giving their fingerprints when you apply for a job, but DNA is so much more useful, so much better, and it's not any more invasive. We are just going to just start giving people DNA tests a lot of the time.

SMERCONISH: Jeffrey, one of the criticisms of law enforcement in this case is that they looked at the DNA of a thousand different individuals, and even though he had a profile that would make his suspect of him, Derrick Todd Lee, they never took his DNA.

By the way, that name makes him sound guilty, it's Like John Wayne Gacy, Lee Harvey Oswald.

TOOBIN: You know when you get three names you know you're guilty.

SMERCONISH: When they call me Michael Andrew Smerconish, I have a problem.

BLOOM: Well, you know what's interesting in this case is using the most advanced science DNA, but also, it took old-fashioned gumshoe work to make the case. The task force that was convened did not find this guy. It was an independent investigator who made the link, who used his own brain, followed a lead. That's how it was solved.

TOOBIN: That's how it was solved, but it took a long time, and five people died. This was a terrible, terrible crime. I just think we are moving into the era of databases, as opposed to gumshoes, and I think that this case illustrates solve it by computer, rather than relying on somebody's good instinct.

SMERCONISH: If we had a national DNA database, we would have solved it a long time ago.

TOOBIN: It would make a lot of people nervous, but I don't see why. Fingerprints are a lousy technology, you get all sorts of false positives and false negatives, and you simply don't have the resources.

BLOOM: We don't have a national fingerprint file on everyone, that's what Michael's concerned about.

TOOBIN: But it's close. We have many fingerprints on file. The FBI has tremendous resources, but we are going to move on to the next story, and it's identity as well.

In Florida, the case of the veil. Sultaana Freeman, a Muslim, is fighting a state order to remove her veil for a driver's license photo, claiming that the photographing violates her religious rights, but Florida officials say the requirement is a matter of public safety. It's the primary form of identification in the state.

Freeman's attorneys argue that the officials didn't care that she wore a veil in her license photo until after the September 11 attack.

BLOOM: I'll tell you something, Jeffrey, this is the kind of case that makes me proud to be an American. We want to protect the religious rights all minorities. We are going to give her a fair day in court. She may not win, but we are going to hear her out on her claim, Michael. SMERCONISH: She's proud to be an American so she can go to court and lose.

BLOOM: This asserts her right to religious freedom. This is something that is a deeply held belief for this woman. We should hear her out, and if there's an alternative where we can protect the religious interests, as well as the state's interest in public safety, we should try to do that.

SMERCONISH: Respectfully, when I heard this and saw this, I thought it was a joke. You have to be kidding me, that a cop is going to walk up, having pulled this woman over, and not be able to determine, because she's wearing a veil, whether this is the individual who holds the driver's license? You know in 1999, according to published reports, she had a conviction for aggravated battery, no wonder she doesn't want us to see her face. Take off the veil or don't get behind the wheel!

BLOOM: It's worse that that. It's a child abuse conviction for breaking the arm of a 3-year-old foster child in her care. Even a convicted felon has a right to religious freedom in this country.

TOOBIN: How much do you think it has to do that the fact that the first person brought is up a Muslim and in the post-September 11 era?

SMERCONISH: I think it has a lot to do with it, but that doesn't make it an illegitimate argument. I think it's a valid public safety argument to say, we have a right to take a look at your face. It's a privilege, it's not a right, to operate a motor vehicle.

BLOOM: But this is a religious garment, and don't the Muslims have the same rights as Jews, for example, who have the right to wear a yarmulke in the military? Nuns to wear a habit? Don't we protect the rights of all religious minorities? 9/11 hasn't changed that.

SMERCONISH: They did up until September 10, and then all of a sudden, everything changed.

BLOOM: Well, it didn't change the Constitution.

SMERCONISH: Not yet. All right, authorities arrested a Maryland man for allegedly stabbing his girlfriend to death only 20 months after being paroled for the 1992 killing of his wife. A judge decided to reduce Michael Sears' 30-year sentence back in 1999, which made Sears eligible for parole earlier. He was released in 2001, and now that judge points the finger at state parole board who was responsible for actually releasing Sears.

TOOBIN: The answer politicians have to cases like this is always the same, determinate sentences. You serve your full sentence, and you who objects to that the most? Prison officials. This case is a tragedy. It's awful, but if you eliminate discretion in sentences, you eliminate any sort of incentive for prisoners to behave better, for them to reform themselves, and I'm afraid this is the price we have to pay, but we shouldn't get rid of discretion in the sentencing process.

SMERCONISH: I disagree, and you know who I fault? I fault the shrinks. There's always a psychiatrist out there for hire who is ready to render the opinion that this person's sane, this person's insane. It reminds me of Vincent "The Chin" Gigante, the guy who walked around Greenwich Village in a bath robe, and I'm nuts, I'm crazy. All of a sudden, now he reveals it's a hoax. I want to know who are the mental health professionals, like in this case, who said, oh, no, it's okay to let this guy loose.

BLOOM: But Michael, this is a system administered by human beings, be they mental health professionals, attorneys, parole officers there. There is going to be flaws in the system, unfortunately. The only alternative is to have a computer lock everyone up for life. I think we need to have human beings administer the system and, yes, judges are going to make mistakes, but let them have some discretion.

SMERCONISH: Lisa, the guy did nine years for murdering his wife. Are you kidding me? There should never have been a possibility that he could get out.

TOOBIN: How are you going to discipline people in prison if they have no lever over them, no leverage to say, we'll hold you in or keep you out, based on how you behave.

SMERCONISH: We are never going to let you out if you murder your wife. That's the bottom line. OK?

TOOBIN: Everyone should just do life. That will solve everything.

BLOOM: Well, there is discretion judges have in sentencing, and I don't think we should change that. We have to take another quick break, but up next, the stories that make us say, "Objection." Stay with us.


TOOBIN: Welcome back. Three peace activist nuns could be saying their prayers behind bars for the next five to eight years. The nuns were convicted last October of felony charges for trespassing and defacing a military silo, pounding on it with hammers and smearing it with their own blood to protest a war in Iraq. Sentencing is scheduled for late July.

This is what I thought civil disobedience is all about. You do it, you take the consequences.

BLOOM: But that doesn't necessarily imply a prison term. Prison should be for violent criminals. Are we really worried about a rolling band of nuns out on the streets? I say, it's a property crime. Let them pay for the cost, and let them move on.

SMERCONISH: All right, Sister Bertrille, they are not, if you remember the old "Flying" -- they are trouble makers! And what, we are going to create a nun exception in the law? If they were your convection activists with tie-dye shirts and hair down to their fannies, we'd be saying, lock 'em up. Why should they be any different?

BLOOM: Because they are the conscience of the community. They're make a statement, and a lot of good has happened in this country from civil disobedience.

TOOBIN: This was trespassing on a military silo. I don't think we can make exceptions for, well, they had good intentions when they are trying to be, you know, being around weapons.

BLOOM: They should be convicted, yes. But prison? I think that's a little harsh.

SMERCONISH: All right. "Pardon me" isn't something you were likely to hear when the late comedian, Lenny Bruce, was performing on take, but supporters of the foul-mouthed Bruce, including 25 First Amendment lawyers, are seeking a pardon for the comic, who was convicted of obscenity charges in 1964 for his onstage routine.

Now wait a minute, we are going to start to look back through 2003 eyeglasses at conduct in 1964? What are we going to do next? Exonerate Jim Morrison of the Doors for all the antics that he performed on stage and got in trouble?

TOOBIN: Another terrific idea, pardon Jim Morrison, too. Look, we all know if Lenny Bruce were alive today, he'd have a show on HBO, at least, if not a movie deal. He was a pioneer, he was a genius in his own way, a pardon is a terrific idea.

BLOOM: It's called of evolution of the culture. It's called growing up as a culture. I think his memory and legacy are important to his family, and I think they're moving in the right direction.

SMERCONISH: I think it's a wannabes who are looking at Lenny Bruce, trying to emulate him, and now trying to become associated. It's ridiculous and a waste of resources.

TOOBIN: Before my time, but it seemed right to me.

Remember that high school hazing story in Illinois? That famous video that showed a group of girls humiliating and hurting other students? Glenbrook High expelled 31 seniors but allowed them to receive their diplomas on time with their grades intact. Fifteen students were charged with misdemeanor battery, while two students and two adults were charged with alcohol-related misdemeanors for allegedly providing beer to underaged drinkers.

It seemed to me the school came out with a reasonable compromise, some real consequences here, but not ruining these kids' lives and not, you know, taking their high school degrees away.

SMERCONISH: Here's the sign of the times for the female mud wrestlers. Part of the deal here was that they had to give up any ability to profit from those shenanigans. They can't have a book or movie deal. I mean, Jayson Blair commits fraud on "The New York Times," and what do people say? Now he'll go write a book. What's wrong with our society?

BLOOM: Well, you know, as a mother and an attorney who represented teenagers, I think the school has missed an opportunity here to educate these girls about right and wrong, and allowing them to graduate on time sends the wrong message. But there should be a special prison for the parents who provided alcohol to underaged kids and encouraged this behavior.

Well, a Manhattan bridesmaid has filed a $2 million lawsuit against celebrity wedding gown maker, Vera Wang, claiming she was severely injured when she stepped on a needle at the designer's New York boutique. Melissa Brennan's attorney says the needle was lodged in his client's foot for a week. OUCH! She underwent surgery to have it removed.

By the way, the bridesmaid did make the walk down the aisle in her friend's wedding. I have to tell you, I'm in favor of bridesmaids being able to sue for everything. It is such a miserable experience!

TOOBIN: But the astonishing thing about this story is they found a needle will at a dressmakers. Next thing you know they'll find alcohol in a bar. This is a ridiculous lawsuit.

BLOOM: Who's the best position to know -- who's in the best position to protect if the owner of the store -- this say typical lawsuit. Just because the plaintiff is asking for $2 million, we all know she's not going to get that much.

SMERCONISH: She files a lawsuit because of a pin in her foot, and she wonders why she's always a bridesmaid and never a bride? Give me a break.

BLOOM: It's lodged all the way up there. She suffered some damages. She should be compensated like anyone else.

TOOBIN: Well, we will not settle this today, but we will try. Anyway, that's all the time we have. CNN's "SUNDAY MORNING" continues after the break and a quick check of the hour's headlines.


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