Guests: Paul Rothstein, Kobe Hawkins, Brittany Hawkins, B.J. Bernstein, William Fallon, Geoffrey Fieger, Jayne Weintraub, Hubert Santos, Eugene Riccio, Tom Matthews
SUSAN FILAN, GUEST HOST: Coming up, the Supreme Court throws out the president‘s plan to use military tribunals to try terror suspects held at Guantanamo Bay, so what happens to these prisoners now?
The program about justice starts now.
Hi everyone. I‘m Susan Filan. First up on the docket, the Supreme Court hands the Bush White House a major defeat over its plan to try the terror suspects at Guantanamo Bay. The court ruled 5-3 that the special military tribunals are illegal under both U.S. law and the Geneva Convention saying—quote—“trial by military commission raises separation of powers concerns of the highest order.”
The case focused on Salim Ahmed Hamdan, Osama bin Laden‘s one-time bodyguard and driver who has spent four years at Gitmo. The ruling does not mean that the U.S. must close down the facilities at Gitmo or free any of its detainees, although none of them can be tried by a military commission. It is still not clear how long they will have to wait for a trial or what will happen to them now.
Joining me now is Paul Rothstein, Georgetown University law professor.
Thanks for joining us.
PAUL ROTHSTEIN, GEORGETOWN UNIV. LAW PROFESSOR: My pleasure.
FILAN: Paul, what is going to happen to these detainees now?
ROTHSTEIN: Well in a funny way, maybe this ruling, which seems to be in their favor, hurts them a little bit because they could be kept, as you suggested, for quite a long time now, a longer time because the method that had been chosen to give them a trial has been invalidated, so now they‘re going to have to wait for the president to decide what else to do with them. There are a number of options open to the president short of giving them a full criminal trial like we give regular criminal defendants, with all of the rights and protections that they have.
The court doesn‘t say that is what has to be given to these people. The president can do something less than that. The president could give them a trial like we have for courts-martial in the military, which is somewhat fewer rights and protections than a full criminal trial. The thing the president can‘t do is he can‘t give them virtually no rights and protections like he wanted to do, the military commissions that he has—that the president had established give you virtually no procedure...
ROTHSTEIN: ... rights and protections. Like...
ROTHSTEIN: Like for example, secret evidence could be used against them. They wouldn‘t even have to be present at their trial. The appeal would be to the president who obviously has an interest in this. There were no rules of evidence, that sort of thing.
FILAN: Right. Now you‘re talking to us about procedure, but go into sort of the guts of the Supreme Court opinion, take a look at what the Supreme Court held. This is Justice Stevens.
We conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the USMC and the Geneva Conventions.
Tell us why that is the case and also if the president is trying to fight terror at home and he has set up this camp—this detainee camp Gitmo, but now he can‘t detain these prisoners and try them here, what is the Supreme Court saying to the president and what is our country to do now?
ROTHSTEIN: Well he can try them here, and he can detain them indefinitely. All the Supreme Court said is that if he does choose to give them a trial it can‘t have the nearly zero protections and rights of the military commission. But the president could try them in a normal military court, like we use for court martials, which has many fewer protections than...
FILAN: Yes, but why couldn‘t he try them in a court of law? Why does it have to be a military court?
ROTHSTEIN: He can. That is also open to him. He can try them in a criminal court of law with all of the full protections. The president is a little worried about that because it reveals necessarily state and military secrets. Everything is quite open. Although I think that could be done.
We do have some protections against revealing state and military secrets in a full criminal trial. There are other things the president is allowed by this decision to do, too. He could send them back to their home countries to be tried. He could just release them. He could detain them indefinitely. He can go back to Congress and get Congress to authorize the very military commissions...
ROTHSTEIN: ... that the court today said are no good...
FILAN: Right and I want to ask you...
FILAN: This is Justice Breyer I think addressing your point. I want you to take a listen to this.
Congress has not issued the executive a blank check. Indeed, Congress has denied the president the legislative authority to create military commissions of the kind at issue here. Nothing prevents the president from returning to Congress to seek the authority he believes necessary.
So, Paul, is the court basically telling the president look, you can do what you like if you get congressional approval, but you are not running this country all by yourself. Is he sort of—they‘re reigning him in.
ROTHSTEIN: Absolutely. And that is very significant, not only to this case but to what we have heard a lot about. The president‘s wiretapping and electronic eavesdropping, it is very significant. The president made the same argument in both cases, both this case about military tribunals and the wiretapping and eavesdropping situation. He is arguing that Congress did give him the authority when Congress authorized the use of military force in Afghanistan and to fight the 9/11 terrorists.
And it‘s very significant that the court here is saying we don‘t read that authorization to use military force as including the right to establish any kind of trial and commission that you want, and I would say that has implications. It suggest that they may not read that authorization to use military force as including wiretapping and eavesdropping either, which was one of the president‘s big arguments...
ROTHSTEIN: ... that this authorization did authorize that. So, it is kind of a slap in the face...
ROTHSTEIN: ... to what the president thinks he has by way of implied powers.
FILAN: Complicated stuff, but very, very important. Professor, thank you so much. Our viewers are now your students. Thank you for joining us.
And now to Georgia where countless sex offenders are just two days away from having to find new homes unless a new law is thrown out before Saturday. The law in question prohibits sex offenders from living, working or loitering within 1,000 feet of any place where kids gather including schools, playgrounds, churches and bus stops. The bus stops are the big issue here as every school year bus stop routes change depending on where students are living.
A federal judge so far has stopped this law from uprooting eight offenders, issuing a temporary restraining order, calling the law unconstitutional. But about 10,000 more sex offenders are hoping to be spared too. Joining me now convicted sex offender Kobe Hawkins and his daughter Brittany. Thanks for joining us.
KOBE HAWKINS, CONVICTED SEX OFFENDER: Hi, Susan.
FILAN: Kobe, what is...
UNIDENTIFIED FEMALE: Hello.
FILAN: ... going to happen to you on Saturday?
K. HAWKINS: Pretty much me and my family are going to have to pack up and move. Not too many options. The options they‘re giving us is pretty much wasteland and swamps down the road as far as where we can live.
FILAN: What were you convicted of and what were the circumstances of your conviction?
K. HAWKINS: My conviction was criminal sexual conduct in the third degree. It didn‘t have minor attached to it. I was in a consensual relationship at the age of 24 with someone who I believed to be 18. They ended up being 16. I was reported and I was just as shocked as anybody else when the law enforcement showed up.
FILAN: And how did you go to jail for?
K. HAWKINS: I served five years in South Carolina and then I was released off of probation or parole.
FILAN: And you had to then register as a sex offender and you have to report?
K. HAWKINS: Yes, ma‘am. As soon as I got out, I immediately went to the Sheriff‘s Department the day I was released. Within two days I had a job and I informed the investigator here of any move I make.
FILAN: OK. Now, as a convicted sex offender, you under this new law can‘t live near a bus stop.
FILAN: You do live within 1,000 feet of a bus stop. Who gets on that bus at that bus stop where you live now?
K. HAWKINS: The bus stop—only my four children get on that bus stop.
It is directly in front of my house at my driveway.
FILAN: So if you didn‘t have kids living in that house, there would not be a bus stop. So essentially the law is seeking to protect your own children from you, is that right?
K. HAWKINS: Actually, they informed me that whatever the Richmond County Board of Education claims as a bus stop is what they consider a bus stop. So regardless if my kids are there or not, they still consider it a bus stop, even though I took them to school all year long because the bus driver said it was out of his way to stop there.
FILAN: Wait a minute. If you didn‘t have any kids in that house and the bus didn‘t have to stop at that house it would still be a bus stop according to the county?
K. HAWKINS: It would still be marked as a bus stop.
FILAN: Brittany, what do you think about this? I mean how do you feel about this happening to your family? How do you feel about your dad as a convicted sex offender? How do you feel about maybe having to move?
BRITTANY HAWKINS, DAUGHTER OF CONVICTED SEX OFFENDER: I feel that it‘s wrong because my dad was gone for five years and that‘s a lot of time. And now when we are trying to make up the time that we missed they are making a new law that says we have to move away from him and we have to move away from our friends and all this stuff that we‘ve done so far (UNINTELLIGIBLE) and it‘s not fair at all.
FILAN: Sweetie, do you think your daddy is dangerous? And do you think kids need to be protected from him?
B. HAWKINS: I don‘t think that is the case at all because he wouldn‘t hurt anybody. He‘s like really nice and I don‘t think people should be scared of him because he wasn‘t even in that—for child molestation or anything like that, so no people shouldn‘t be scared of him...
FILAN: And Kobe...
K. HAWKINS: Yes, Susan.
FILAN: ... do you think in general this law might be a fair way for the state to try to protect kids from sex offenders but in your case it‘s unfair or do you just think it‘s unfair across the board?
K. HAWKINS: I don‘t minimize sex offenses. There are child predators out there. I teach my kids the same thing that other parents teach theirs. I just don‘t know what to say about it really. It‘s just confusing. It does apply to some, I believe. But my theory on it is, is that regardless of where a child predator lives they have transportation. They‘re going to be able to get where they want to get to do what they want to do unless something else is done.
FILAN: Last question, Kobe, if this law isn‘t thrown out you do have to pick up your family and move on Saturday, do you have a plan? Do you have a place to go that isn‘t a swamp?
K. HAWKINS: Well they haven‘t given us too many options. They gave us two hotels and I think everybody is going there and I‘m not going to put my kids in that situation. My family has decided that we‘re going to stay together regardless. Our option is to go to South Carolina.
Their restrictions are—they really don‘t have any restrictions. If the judge specified you couldn‘t live somewhere, you couldn‘t live there. In my case there was no restrictions, so my option is to go right over the bridge here about 10 minutes down the road and maybe live in South Carolina until I can find something over here that‘s reasonable.
FILAN: Kobe, Brittany, thanks so much for joining us. You helped put a real face on the consequences of this law and help this country debate how we should handle sex offenders to be fair to them and to protect our kids. Thanks so very much.
K. HAWKINS: Thank you.
B. HAWKINS: Thank you.
FILAN: Coming up, so is Georgia‘s law banning sex offenders from living near school bus stops and other sites unconstitutional? We will debate that next with our legal team.
And a male teacher sentenced to 15 years for having sex with two female students. Why did he get so much time behind bars when female teachers like Debra Lafave don‘t get any prison time at all when they sleep with their male students?
Plus, Andrea Yates‘ lawyers start their defense trying to prove she was insane when she drowned her children, but they may have a difficult job after three days of wrenching witness testimony.
Your e-mails send them to email@example.com. Remember to include your name and where you‘re writing from. I‘ll respond at the end of the show.
FILAN: We are back with more on the controversial Georgia law that will force most of the state‘s 10,000 sex offenders to find new homes. The law, which goes into effect Saturday bans sex offenders from living within 1,000 feet of any place where children might gather including schools, playgrounds, bus stops and day care facilities.
Joining me now Georgia criminal defense attorney B.J. Bernstein, Bill Fallon, former sex crimes prosecutor, and criminal defense attorney Geoffrey Fieger.
B.J., why isn‘t this law fair? What‘s wrong with it?
B.J. BERNSTEIN, GEORGIA CRIMINAL DEFENSE ATTORNEY: Well the problem is it‘s across the board applying to offenses that you and I if we talk about the individual case would never be concerned that that person is near a school bus stop. For instance, one of the plaintiffs in the lawsuit is 26-years-old, married, two kids, is on the registry because when she was a teenager and 17 she was involved with a 15-year-old classmate consensually.
Under Georgia law back then that made her a convicted felon. And now she‘s having to move and lose everything for something she did when she was 17 years old that plenty of teens are doing. So across the board is not being looked at in terms of what we passed this law for. The idea behind this law was to protect children like Jessica Lunsford. Protect them from what we consider to be horrible pedophiles who attack and murder children and yet a large number of the people who are on this list don‘t fit that category at all. It‘s absurd.
FILAN: ... why don‘t we just pick and choose the good sex offenders from the bad sex offenders and say the good ones can live where you like, the bad ones will live where we tell you. That—I mean...
WILLIAM FALLON, FORMER SEX CRIMES PROSECUTOR: Susan, only you could even with a straight face talk about good sex offenders. While we individually look at cases, I think a law has to be passed that says sex offender registrants. They all have to register. You might say they are level one, two or three. I think it makes sense sometime to have, for instance, the serious level three people—for instance, the guy we just heard that you so lovingly (UNINTELLIGIBLE) but the point was Hawkins was convicted of sexual either rape, molestation or contact with a minor.
So, although we might feel individually bad when you look at him and his sweet little daughter, we are talking about balancing that with protecting society. And quite frankly, if it is knocked down, if the case is found unconstitutional of the law all they are going to do is make it prospective. That is anybody who gets convicted of any kind of molestation, rape of children, and it is not just for murdering children. It is for sexual assault of children and it does make sense, by the way, that we don‘t want child molesters, we don‘t want rapists leering over at kids near schools.
We don‘t want them at the bus stop. Now again, when you look at this you say oh, but it is only his own kids going to the bus stop. You have to pass a law that says where they can be. Might—he might get an out on this because he might say I was convicted before. Some states have looked at the fact we will prospectively give these move-away, as I call it, the move-away laws. I‘m totally for them. I think if courts decide that it‘s only perspective and that if you are convicted from now on at least you know it‘s part of that sentencing, you‘re not going to be living in a swamp in Georgia.
FILAN: Hey, so Geoff, why isn‘t it fair?
FILAN: Why doesn‘t Bill have a good point? Why isn‘t it fair to try to protect kids from registered convicted sex offenders? Why are we bending over backwards to make sure that they can live wherever they want? What is wrong with this law?
GEOFFREY FIEGER, CRIMINAL DEFENSE ATTORNEY: We‘re not bending over backwards. But you can‘t take 10,000 people and put them in concentration camps in swamps in Georgia. This is still America. And if somebody presumably has committed a crime and paid their debt to society we don‘t start moving 10,000 people out of their homes and put them into swamps, which apparently in this law is about the only place that they can live without violating it.
They literally cannot live in any neighborhood in Georgia. Now that‘s about...
FIEGER: ... as unconstitutional...
FALLON: Geoff, this guy said he could move 10 minutes away.
FIEGER: He can move to another state.
FIEGER: That is as unconstitutional...
FIEGER: ... a law as one could possibly imagine. It is so overbroad that if we can allow that in America as you have seen, and our rights are being constantly whittled away, this would be draconian beyond belief.
BERNSTEIN: You know, Susan...
FILAN: Panel, I just want to report breaking news, the court has just extended the law not letting the law go into effect that would force these eight to move to the 10,000. So to be very, very clear, the law is now on hold with respect to everybody, so Saturday is no longer D-Day for any of these 10,000...
FILAN: ... registered sex offenders...
FALLON: Ten thousand molesters, there are 10,000...
FALLON: ... sex offenders in Georgia.
FALLON: I am a little troubled by that. I am not moving there.
FILAN: All right. B.J., your turn.
BERNSTEIN: All right. Well this is—you know this is the reality here, Susan, me living in Georgia, I just finished being in one of the counties here where every single sex offender is going to have to leave the entire county. In talking with district attorneys and I too was a child abuse prosecutor for a number of years, a lot of prosecutors behind the scenes are saying this isn‘t the answer to the problem. They too have concerns about it.
Particularly, my friends down in South Georgia who are petrified that every person who is a sexual offender in North Georgia is going to be forced to move to South Georgia. In Iowa there‘s already been these kind of laws in effect. There was an extensive article this summer in “The New York Times” and when law enforcement was interviewed about it, the big problem becomes with these registration laws instead of keeping track of people they go underground...
FIEGER: Where did anyone get...
BERNSTEIN: ... because it‘s impossible for them to abide by them.
FIEGER: Where did anyone get the idea, though, that sex offenders grab children and pull them into their homes rather than commit the crimes all over? I mean where is the relationship...
FILAN: So Geoff...
FIEGER: ... between where they live...
FILAN: How would you draft it?
FIEGER: ... and where they commit the crime?
FALLON: Geoffrey, the relationship here is that yes it is true—I don‘t think this is a panacea. I don‘t think this is the whole answer but we do know that child molesters quite frankly I can say in my experience as a prosecutor for 20 years here, that they do congregate whether it‘s the YMCA, whether it‘s the bus stop, whether it‘s outside the school. They look there because they are looking for their prey...
FIEGER: But that doesn‘t...
FIEGER: ... that doesn‘t have anything to do with...
FALLON: And all we are doing here is saying...
FIEGER: That doesn‘t have anything to do with this law.
FIEGER: ... anywhere they want.
FALLON: No, it says here—I mean I think that that‘s the fallacy in this law is that people will feel overprotected. On the other hand, I think it makes great sense. I am for tattooing, Geoffrey. As you know, I think child molester should be across your forehead so that everybody can say to their kid he‘s convicted. Put it on your wrist. Somebody says stay away from someone like that...
FIEGER: Sure and we don‘t wrongfully...
FIEGER: ... convict people either, do we?
FALLON: Well no, then we can use the white tattoo. Certainly...
FIEGER: Oh, a white tattoo...
FALLON: If we have 10,000 sex offenders on the sex offender registry list, Houston or Atlanta, we have a problem here, and I think we are trying to balance what do you do...
BERNSTEIN: But you‘ve got to look at who these people are. This is what - - the part you are missing.
BERNSTEIN: In Georgia, we have had laws on the books. We‘ve had book—just—it‘s only been about seven years that consensual oral sex between husband and wife wasn‘t a felony that carried 20 years.
FALLON: Are they on the sex offender registry?
BERNSTEIN: That puts you on the sex offender registry.
BERNSTEIN: They can be on the registry if they were convicted over that.
BERNSTEIN: That‘s the problem.
FILAN: ... Geoffrey, looks like the court has agreed with you. Bill, you‘re going to have to try again and find a law that doesn‘t violate the Constitution...
FALLON: Well no...
FALLON: We are still going to save the children.
FILAN: Coming up, a 29-year-old teacher sentenced to 15 years in prison for having sex with two students. That might sound right, but why do so many female teachers get away with so much less time behind bars for doing similar things?
And could Kennedy cousin Michael Skakel get a new trial? His attorneys say they have someone who is holding back information about Martha Moxley‘s murder.
And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing sex offenders before they strike again. Our search today is in Wisconsin. Police are looking for Antoine Griffin.
He‘s 29 years old, five-foot-nine, weighs 146 pounds. He was convicted of second-degree sexual assault of a child and he hasn‘t registered his address with the state. If you have any information on his whereabouts, please call the Wisconsin State Police at 608-240-5830. We‘ll be right back.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: What do you think about the double standard...
DEBRA LAFAVE, CONVICTED SEX OFFENDER: I don‘t think there is one. I think we all should check the statistics and I don‘t think there is a double standard.
(END VIDEO CLIP)
FILAN: Debra Lafave doesn‘t think there‘s a double standard for a man and women when it comes to sentencing in teacher-student sex cases, but I bet former Wisconsin teacher Stephen Sherman would surely disagree. Sherman was sentenced to 15 years in prison and 15 years of supervision on top of that for having sexual contact with a 14-year-old and a 16-year-old, both former students at the school where he taught. This as Debra Lafave avoided any prison time when she admitted molesting one of her 14-year-old male students.
(BEGIN VIDEO CLIP)
LAFAVE: My greatest regret would probably be the fact that I put this young man through this. I pray with all my heart that the young man and his family will be able to move on with their lives.
UNIDENTIFIED FEMALE: Do you think that you will not reoffend?
LAFAVE: Absolutely not.
UNIDENTIFIED FEMALE: How do you know for sure...
LAFAVE: In my hearts of heart I definitely know. I am a strong Christian woman and I believe that God has a path for me. And this was just a bump in the road.
(END VIDEO CLIP)
FILAN: Lafave got three years of house arrest and seven years of probation while Catholic high school teacher Sandra Beth Geisel was sentenced to six months in jail for having sex with a 16-year-old student on a number of occasions. And do you remember Mary Kay Letourneau?
(BEGIN VIDEO CLIP)
MARY KAY LETOURNEAU, CONVICTED SEX OFFENDER: I did something that I had no right to do morally or legally. It was wrong and I am sorry. I give you my word that it will not happen again.
(END VIDEO CLIP)
FILAN: Well her original sentence was six months in jail and three years of counseling. So do you think there is a double standard here? Let‘s ask my panel, former sex crimes prosecutor Bill Fallon, criminal defense attorneys Jayne Weintraub and Geoffrey Fieger.
UNIDENTIFIED FEMALE: Susan.
FILAN: So what is the deal, Bill, if you are pretty you don‘t go to prison and if you are a guy you do?
FALLON: Well if you are pretty, not only don‘t you go to prison, she said she wanted to be in the media, so that‘s clearly kind of nice. That‘s her next thing. Quite frankly, this judge got it right in Wisconsin. Teachers who have sex with their kids, and I am not getting into boys having sex with girl students, a man having sex with girl students, female...
FILAN: Jayne, Jayne, we have lost Bill. Jayne, do you think there is a double standard?
FILAN: If so, do you think there should be and do you think 15 years is the right number for this guy?
JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY: Of course I don‘t think there should be a double standard, but I‘d have to be on Mars to look at all of this and think there isn‘t. There is a double standard, Susan, and why should there be? There shouldn‘t. People have to look at the individuals, not the crime.
Bill Fallon makes a comment he wants to put a stamp across someone‘s forehead, you know sex offender. Well I say we need to put individual around the forehead because we have to look at each case on its own. For example, Debra Lafave had a genuine psychiatric defense that was bona fide that the court accepted and the prosecutor accepted. In this particular case with Sherman yesterday, 15 years of state prison, one of the accusers is 16 years old. You know, Susan, there is a big difference between a 16-year-old accuser and a 14-year-old accuser.
FILAN: But Jayne, he‘s her teacher. What do you want him to get a medal and an apology and a lump of dough? I mean that is outrageous. Geoffrey, do you think there is a double standard and if so, do you think there should be one?
FIEGER: The answer to both is yes. There is obviously a double standard and there is a qualitative difference between men and women, not simply by the way they are treated in the courts but in terms of the—I guess the elements that go into the crime.
FILAN: You‘re kidding, right? You‘re—this is a joke, yes?
FILAN: You‘re kidding...
FILAN: That men...
FILAN: Wait a minute.
FILAN: That men who have sex with female students should be treated differently than female teachers...
FIEGER: I didn‘t—wait a second. I didn‘t say that. You asked me if there was a double standard...
FILAN: And I said and if so, should there be and you said yes, yes.
FIEGER: Yes and I also said and I do agree with Jayne. It has to be done on an individual basis. For instance, this case in which she is 16 years old. In Michigan that is not a crime except if you are a teacher. If you have sex with a 16-year-old in Michigan, but you are not a teacher, it is perfectly OK.
FILAN: But we‘re talking...
FIEGER: Wait a second. In this case...
FALLON: ... Geoffrey. That‘s a crime.
FIEGER: I know. Well...
FALLON: And the 14-year-old it‘s a crime...
FIEGER: He was a substitute teacher. Wait...
FALLON: Oh, a substitute.
FIEGER: Wait. Wait a second. And they had sex over 50 times, so clearly it wasn‘t coerced.
FALLON: Well, wait a minute...
UNIDENTIFIED FEMALE: It was a relationship.
FIEGER: I am saying that qualitatively when women who look like Debra Lafave have sex with 14, 15, 16 and 17-year-old boys that is different than girls. And the reason it is different is because I don‘t know a boy who would think it‘s a crime to have sex with her.
FIEGER: You could line them up from here to Los Angeles...
FALLON: But the point is...
FALLON: Many incest victims don‘t think there‘s anything wrong with it either, Geoffrey. That‘s what—that‘s the heinous kind of...
FIEGER: We‘ve gone crazy...
FALLON: ... many 12, 13 and 14-year-old kids...
FIEGER: And we‘ve gone crazy...
FALLON: The people that had sex with a priest didn‘t think there was anything wrong with it...
FALLON: And I‘m telling you I‘m glad...
FIEGER: I‘ve got news for you. The priests all got away with it too.
FALLON: Not the ones I prosecuted...
FALLON: ... went away for 20 years.
FIEGER: How many? How many did really?
FALLON: No because they were...
FIEGER: How many...
FIEGER: They all got away with it.
FALLON: We had a society that didn‘t recognize—we had a society that sounded like you. Well it‘s different if you‘re 13, 14, or 15 years old. No one could come forward. This is an outrage...
UNIDENTIFIED FEMALE: Bill...
FIEGER: You see the dichotomy. On the one hand...
FILAN: Jayne, jump in.
FIEGER: ... concentration camps. On the other hand, you‘ve got a problem if a girl doesn‘t go to prison for having sex with a 17-year-old...
FILAN: Hold on guys. Let Jayne jump in.
FILAN: Let Jayne in.
FALLON: Jayne, jump in.
FILAN: Jayne, go ahead.
WEINTRAUB: Bill, the judge said this guy Sherman is sick. We need to look at that. Was there a psychiatric evaluation? What‘s the evidence? What‘s the possible defense? You are just taking a blanket position. There are no defenses. If he‘s accused of sexual molestation as a teacher, that‘s it, lock him away for life.
FALLON: Jayne—you know what, Jayne?
FALLON: If you are not guilty by insanity...
FALLON: ... then go for the not guilty. If you are a convicted sex
offender—I heard that nut bag Lafave and I‘m telling you, he was saying
you may say she was nuts. There‘s no way she would have gotten that.
The prosecutor was an outrage because guess what, he thought oh maybe I‘ll...
WEINTRAUB: Guess what?
FIEGER: If you were the parents...
WEINTRAUB: The prosecutor agreed with the defense, Bill.
FALLON: That‘s right...
WEINTRAUB: Don‘t you remember.
FALLON: And that was the outrage of it.
FIEGER: If you were the parents of the young man...
UNIDENTIFIED FEMALE: Right.
FIEGER: ... who had sex with Debra Lafave, would you want to put him through that? I wouldn‘t put my son through it.
FALLON: No, but you‘ll remember...
UNIDENTIFIED FEMALE: That is an inconsistent position.
FILAN: Hold up. Hold up.
FILAN: Geoff Fieger, that is an inconsistent position because on one hand your defense of these teachers is it‘s the lucky boy defense.
FIEGER: Well I‘m telling you...
FILAN: But if this boy is so lucky, why is it traumatic for him to have to testify?
FIEGER: ... in this society we feel we‘re being discriminatory if we don‘t
treat men and women differently in everything. Well the fact of the matter
if we do treat them differently—the fact of the matter is there is a qualitative difference. There is. Older women...
FIEGER: ... with younger men...
FALLON: ... do not make...
FIEGER: You are going to have a hard time making men believe that.
FALLON: Britney Spears...
FALLON: ... sex at 10 for goodness sakes.
FIEGER: Very few men believe that.
FALLON: We do believe it, but we shouldn‘t believe it (UNINTELLIGIBLE) teachers should...
FIEGER: Why do we believe it?
FALLON: Because I think that we have this kind of summer of 42 attitude...
FALLON: ... and girls in the criminal justice system...
FALLON: ... get away with what boys don‘t.
FALLON: When girls murder their children we say oh I wonder if it is postpartum.
FIEGER: This is...
FALLON: ... we say I wonder what went on in that marriage. Men are lock stocked as they should be for serious crimes and...
FILAN: Geoff, Geoff...
FIEGER: Having a relationship with an older woman is equated to murder?
FILAN: Geoff, hold up a second...
FALLON: I think rape and abuse of children, yes, should be equated with murder. Yes I do.
FIEGER: You wouldn‘t be abusing me...
FILAN: Geoff Fieger (UNINTELLIGIBLE)...
FIEGER: ... if you had sex with me when I was 17...
FILAN: Hold up.
FILAN: Geoff, last question, this is what bugs me so much about your argument. What you are setting up as a defense in a rape case, whether it‘s statutory rape or not, is the you loved it defense. The you wanted it defense. That just can‘t stand. We can‘t tolerate that especially if you‘ve got the disparity in power between a teacher and a student...
FIEGER: Well you have to decide...
FIEGER: ... if you want to prosecute crimes because you think they‘re wrong rather than whether there‘s a real victim. If there‘s no real victim and you are just prosecuting mindlessly because you want to prosecute, because you feel you have to prosecute every case exactly the same (UNINTELLIGIBLE)...
FILAN: But what if the parent...
FIEGER: ... then you are right.
FILAN: ... thinks they‘re the victim...
FILAN: ... and the kid doesn‘t...
FALLON: ... victim. We are not going to let the 8-year-old incest victim who says I love...
FIEGER: Eight years old...
FALLON: ... when daddy does this.
FIEGER: I am not talking about 8-year-old...
FALLON: Well no, but they don‘t feel they‘re a victim.
UNIDENTIFIED FEMALE: Bill...
WEINTRAUB: Bill, do you think there‘s a difference...
FIEGER: I‘m not talking about eight year olds.
WEINTRAUB: ... between a 16-year-old girl who looks 21 and a 14-year-old boy who looks 12?
FALLON: Of course I do, but I think this...
WEINTRAUB: Well then that‘s why they have to be looked at individually.
FALLON: Absolutely, which is why they didn‘t get a life sentence. They only got a 15-year sentence. Someone who had multiple incidents of sexual...
FILAN: We‘ve got to wrap...
FALLON: ... intercourse with a young kid should be going for at least 15 and so should the women.
FILAN: I‘ve got to wrap. Bill Fallon, Jayne Weintraub, Geoffrey Fieger, great panel, thanks so much.
FALLON: You‘re welcome.
WEINTRAUB: Thanks, Susan.
FILAN: Coming up, Kennedy cousin Michael Skakel behind bars for killing Martha Moxley, but now his lawyers say someone is holding back information that could clear him.
And graphic testimony at the Andrea Yates retrial on how the Texas mother drowned her children. She admits to doing it. The question was she insane. We get a live report, coming up.
And your e-mails send them to firstname.lastname@example.org. Remember to include your name and where you‘re writing from. I‘ll respond at the end of the show.
FILAN: Coming up, could Kennedy cousin Michael Skakel get a new trial? His attorneys say they have someone who is holding back information about Martha Moxley‘s murder.
(BEGIN VIDEO CLIP)
DOROTHY MOXLEY, DAUGHTER MURDERED MY MICHAEL SKAKEL: I have not one tiny thread of doubt that Michael Skakel did this. Michael Skakel killed my daughter.
(END VIDEO CLIP)
FILAN: Lawyers for convicted Kennedy cousin Michael Skakel are trying to get him a new trial, saying another man recently implicated in Martha Moxley‘s murder has refused to answer questions about the case, indicating that he knows more than he‘s letting on. But Connecticut prosecutors are absolutely certain Skakel murdered 15-year-old Martha Moxley back in October 1975, bludgeoning her to death with a golf club outside her family‘s Greenwich, Connecticut home. Skakel was convicted back in 2002 and was sentenced to life in prison. But is this new information enough to win him another chance at freedom?
Joining me now Hubert Santos, one of the attorneys fighting for a new trial for Michael Skakel and Eugene Riccio, my old boss, bet you didn‘t know I used to be a criminal defense attorney before I was a prosecutor. Gene represents Ken Littleton, who was a suspect in Martha Moxley‘s murder for a long time before Skakel was arrested. And Littleton testified at trial for the state during Skakel‘s trial.
Hubert, tell us about this new evidence, this guy named Hasbrouck and why you think he‘s given you a reason to ask for a new trial.
HUBERT SANTOS, MICHAEL SKAKEL‘S ATTORNEY: Well you might recall, Susan, that shortly after the arrest of—the conviction of Michael Skakel, Tony Bryant, a person who knew Michael from the Brunswick School in Greenwich came forward and said he knew of two people who were at Belle Haven in Greenwich the night of the murder, Mr. Hasbrouck and another gentleman, and those individuals made remarks to Mr. Bryant that caused him to come forward after Michael‘s conviction and to indicate that they indeed could be the killers.
We asked Mr. Hasbrouck last week at a deposition various questions concerning his knowledge of what happened on the night of the murder, whether he was at Belle Haven, whether he killed Martha Moxley, whether he witnessed her killing. And to each and every question he asserted his Fifth Amendment privilege.
FILAN: (UNINTELLIGIBLE) I‘ve got two questions—first I just want to let our viewers know I was a prosecutor at the time that this case did go to trial working for the office that prosecuted and I‘m not drawing on any inside information as I do this show today, but I did attend every day of that trial. Hubie, that case was so well investigated, to come up with this now after the fact seems like such a long shot to me, number one, and number two, just because he took the Fifth, so what, that doesn‘t mean he killed her. That doesn‘t mean anything.
SANTOS: Well it does mean something because this is a petition for a new trial. And it‘s a little—a different standard. In other words, this is not a government investigation pointing its finger at Mr. Hasbrouck. This is an investigation saying Michael Skakel did not get a fair trial. There was not a thorough investigation by either the state or the defense at his trial.
And that this new evidence is critical to determine whether or not the wrong man now sits in a prison cell in Connecticut for the last three years. We believe a grave injustice has been done in Connecticut.
FILAN: Gene, I want you to take to a listen to something that the prosecutor, Jonathan Benedict, had to say in response to this petition for a new trial.
These allegations are specious and it is unfortunate that he and the other fellow are being embroiled in it. We will be happy to face these issues if and when we have to, as we have through a grand jury, juvenile transfer hearing, three appeals, and the current petition to the Unites States Supreme Court.
Gene, Jonathan Benedict really believes in this case, really believes in this verdict, thinks that this is basically a hunk of junk. I spoke to him on the phone today. Those were not his words. What he did say is he‘ll face this in court and he believes in the verdict and he thinks that this is specious.
Gene, what do you think about this verdict? And what do you think about this petition for a new trial based on this new witness who took the Fifth?
EUGENE RICCIO, DEFENSE ATTORNEY: Well with due respect to Hubie Santos and Hope Seeley, who are excellent lawyers, first of all, you‘ve got to establish with the court that it‘s likely to produce a different result, this new evidence, and I think that‘s—I certainly think that‘s going to be very, very difficult because you‘ve got two problems. One is the quality of the evidence that you are talking about now, these new revelations, whether or not that would be good enough.
And secondly, you‘ve got to deal with a significant amount of evidence that was—that incriminated Michael Skakel. I believe the verdict was an appropriate one and a just one. So they have got two major, major hurdles to get over and I think it‘s going to be difficult, if not impossible to get over both of them frankly.
FILAN: You know, Hubie, I‘ve got to tell you it just seems like such a long shot to me. And I know you think you are representing an innocent man. Have you seen him in prison lately and how is he doing, if so?
SANTOS: Yes, we‘ve seen Michael regularly. Michael is strong. He is a very religious person. He believes the truth will eventually come out. Your listener should remember Michael Skakel was not a suspect in the murder of Martha Moxley for over 20 years. The principle suspects were other people, including the tutor, Mr. Riccio‘s client, including Michael‘s brother. Michael was not a suspect because he was not at the scene at the time of the murder. He was 30 minutes away with his two brothers, his cousin. And over the course of time the prosecution...
FILAN: But a jury rejected that. Guys, I‘ve got to wrap. Let me just tell you, Hubert Santos, Eugene Riccio, two of the best lawyers Connecticut has to offer. Thanks so much for joining us.
UNIDENTIFIED MALE: Thank you.
UNIDENTIFIED MALE: Thank you, Susan.
FILAN: Coming up, she admits to drowning her five children. And today Andrea Yates‘ defense team began presenting its case. We will talk to someone who was there.
And a lot of you had a lot to say about a Chicago family that‘s getting $4 million from the city because they say the police was too slow to save their mother‘s life.
FILAN: After three days of disturbing testimony from prosecution witnesses about how Andrea Yates drowned her children in 2001, her lawyers began her defense this morning. They‘re trying to argue that she was insane when she killed her kids and didn‘t know right from wrong. Yates is being tried again because her 2002 conviction was thrown out over erroneous testimony.
Joining me now is Tom Matthews, KTRH Radio reporter in Houston. He‘s been in court all week. Tom, thanks for joining us.
TOM MATTHEWS, KTRH RADIO: Good to be with you.
FILAN: How did the prosecution present their case? How did it go for them?
MATTHEWS: The prosecution had a very quick case, only took about two and a half days to call all 12 of their witnesses, which included the medical examiner that did the autopsies of the kids, the Yates‘ children, also the officers that arrived on the scene to make that gruesome, gruesome discovery, so the prosecution presented its case very quickly, but they—both prosecutors said outside the courthouse yesterday that they‘re very happy with the way it went.
FILAN: That was the worst part it, wasn‘t it, the medical examiner‘s testimony, where he described how long it took these children to die and what the state of the water was in the bathtub. Can you tell us what that was about?
MATTHEWS: Very, very tough testimony. The jury looked on in shock and horror as that medical examiner described all day yesterday on into the afternoon, after being on the stand all morning, how those kids did struggle against their mother, one of them—one of the autopsy photos actually showed one of the children that had hair from Andrea Yates clenched in his fist.
FILAN: And I think they said that the water in the bathtub was actually dirty, because there was vomit, urination, and defecation, as these children one after the other, all five of them, lost their lives. How did Andrea react when she saw the videos, saw the photos and heard this testimony?
MATTHEWS: Andrea was far less emotional yesterday than she was the day before when that crime scene video was shown, very, very emotional. She actually just broke down in tears and some of the jurors actually had to wipe tears away as that crime scene video took them back to that bed where four of the bodies, four of the drowned bodies were laid and then into the bathroom to see one of the children still floating in that bathtub.
FILAN: And I think this is different from how she was last time. I think she was kind of stoic during her last trial and this time she‘s a little bit more emotional. So what did the defense try to do for her today?
MATTHEWS: Today they have been calling their first witness, who‘s been on the stand all day, and she basically has been testifying about the evaluation that she did on Andrea Yates when she arrived at the Harris County jail, the day after Andrea was brought into custody, and the severe psychosis that she saw in Andrea Yates.
FILAN: Tom, some would say to do this, you have to be insane and the prosecution would say to kill your kids so methodically, so systemically, they were running around the house, she was chasing them down, putting each one in the tub, drowning them, that you have—were cold blooded and deliberate and not crazy at all. Thanks so much for joining us.
Coming up, your e-mails on our debate on the seemingly rising number of teachers having sex with their students.
FILAN: Time now for “Your Rebuttal”. Yesterday we told you about Ronyale White, the woman murdered by her estranged husband after she called 911 several times. Her family sued, saying it took police too long to arrive. Now the city of Chicago is going to pay her kids more than $4 million.
Brian Petow from Boston says, “How do you put a price on life? If anything, a huge settlement will only leave these children further into despair as they grow older. They have no mother to love and nurture them and will be greatly confused by an unordinary amount of money spoiling them as young children and young adults.”
Hey, Brian, that‘s the only remedy the law has for these poor kids who lost their mom and I‘ve got to tell you, it‘s better than nothing.
And many of you reacted to our debate over what appears to be a rising number of teachers caught having sex with their students. We wanted to know whether teachers are breaking the rules more or if it‘s just that more people are reporting it.
Evelyn Fireston from Harriman, New York, “Please ask these teachers why they went into teaching in the first place.”
And Jon Sudlow from Grand Rapids, Michigan, “It‘s ridiculous for teachers to be having sexual relations with their students. I fantasized about my teachers in high school, but it was a fantasy, not a sickening reality displayed by these individuals. Maybe sex education should be reserved for college.”
Other than your sex education reform, you definitely hit the nail on the head. There are lines that should not be crossed and these teachers crossed them.
Mark Spencer, “From the looks of these women, more than half the boys are dead serious when they say they wish it happened to them. Debra Lafave could have molested me any time she wanted and I would have been the happiest proudest guy in school. In fact, I would still be bragging about it to my friends at 51.”
(UNINTELLIGIBLE) I mean OK, good in theory, but a teacher‘s beauty doesn‘t erase emotional scarring that comes with that kind of abuse.
Send your e-mails to abramsreport—one word -- @msnbc.com. That does it for us.
Next, “HARDBALL” with Chris Matthews. Good night.
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