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SHOW: CNN LARRY KING LIVE 9:00 PM EST
February 3, 2007 Saturday
Discussion of the Book "Beyond a Reasonable Doubt."
HOST: Larry King
GUESTS: Mark Geragos, Owen LaFave, Daniel Petrocelli, Gerry Spence
Defense attorneys who wrote a portion of the book "Beyond a
Reasonable Doubt" discuss the book.
LARRY KING, CNN HOST: Tonight Owen LaFave on his ex-wife, the sex
criminal teacher.
OWEN LAFAVE, HUSBAND OF DEBRA LAFAVE: She didn't serve any jail time
but if it was a male sexual offender he would have gotten three to
five years.
KING: Plus, three of America's highest profile attorneys, Mark
Geragos. He represented Scott Peterson.
MARK GERAGOS, DEFENSE ATTORNEY: The presumption of guilt was
overwhelming. They wanted to get onto that jury. And they wanted to
get on that jury to fry him.
KING: Attorney Daniel Petrocelli. He got a wrongful death charge for
O.J. Simpson, after a criminal trial that shocked the nation.
DANIEL PETROCELLI, DEFENSE ATTORNEY: They had more evidence on
Simpson than you could possibly imagine. And yet, the jury acquitted
him.
KING: And Gerry Spence.
GERRY SPENSE, DEFENSE ATTORNEY: I seated 12 jurors, all of whom said
they believed he was guilty. And they acquitted him.
KING: It's an hour that will change maybe the way you looked at
America's criminal justice system. "Beyond a Reasonable Doubt" next
on "LARRY KING LIVE."
There's a new book out that I am very proud to have written the
introduction for. It's "Beyond a Reasonable Doubt". There you see its
cover.
A lot of diverse people contributed to this book giving their
thoughts and opinions on this book that is what a reasonable doubt is
and what is beyond it.
To discuss it we have Mark Geragos, the famed Los Angeles defense
attorney. His clients have included Wynnona Wider, Michael Jackson,
Scott Peterson. His contribution to this book is titled, "I Know
Beyond a Reasonable Doubt that there was an Armenian Genocide."
Owen LaFave is here in Los Angeles as well, the ex-husband of Debra
LaFave -- we said this was a diverse participation -- the former
Florida school teacher, convicted of having a sexual relationship
with a 14-year-old male student.
Owen has written a book about the case titled "Gorgeous Disaster".
His contribution to this book, which I wrote the introduction, is an
essay called, "My Wife the Sex Criminal: Why the Double Standard?"
In Minneapolis, the famed attorney Daniel Petrocelli, who sought and
got a civil verdict against O.J. Simpson when the Browns and
Goldman's sued Simpson for the wrongful deaths of O.J.'s ex, Nicole,
and her friend Ron. His essay in the book is titled, "Outside the
Courtroom".
And in San Francisco, our friend Gerry Spence, once was a prosecutor.
Best known as a defense attorney. His clients have included Imelda
Marcos and the family of the late Karen Silkwood. Gerry's essay in
the book is called, "We, the Killers".
He's also a successful author. You'll see if you visit his website,
gerryspence.com, and that Gerry with a "G."
"Beyond a Reasonable Doubt" is the title. I wrote the introduction.
Let's begin right with the start with Mark Geragos.
Why did you choose the Armenian genocide to back up the point?
GERAGOS: I'm Armenian. All four of my grandparents fled the genocide.
Came to America as a result of the Turk's brutally killing a million
and a half Armenians.
It's topical today because now with Turkey trying to get into the
European Union, recognizing the Armenian genocide is a precondition
that a lot of the European countries have.
In fact, last week we suffered a tremendous loss in the community.
There was a story that's international and especially big in Europe
is the assassination of Huron Tadink (ph), who was the editor of the
paper.
He was an outspoken person talking about the genocide in Turkey. And
it's actually criminal in Turkey. Section 301 makes it a crime to
denigrate Turkishness. And by saying that there was genocide, that
apparently denigrates Turkishness. He was prosecuted.
KING: How does that relate to "Beyond a Reasonable Doubt?"
GERAGOS: The Turks never admitted there was genocide. There was a
book that talks about beyond a reasonable doubt. Here you've got a
crime, a crime against humanity. I know beyond a reasonable doubt
that there was genocide.
KING: I'm going to ask each guest to give us their definition, but,
first, to explain their article.
Daniel, what did you mean by "Outside the Courtroom?" PETROCELLI:
Larry, oftentimes too many people, lawyers included, believe that
justice depends solely upon what happens inside the courtroom. And in
high-profile cases, case of great public interest, that is not always
the case.
And I've had the opportunity to be involved in two such cases. One is
the one you mentioned, the Simpson trial, and the other one is the
one I finished last year, representing Jeffrey Skilling, the former
president of Enron in the criminal trial against him.
And drawing upon those two cases to make the point, I wanted to
explain to the readers how what happens outside the courtroom can
very much dictate and influence the verdict and the result that
occurs inside.
KING: In a sense, you were saying that Mr. Skilling did not get
beyond a reasonable doubt -- he did not get that factor?
PETROCELLI: I certainly do not believe that the proof in that case
rose to the level of proof beyond a reasonable doubt.
But the point that I was trying to make about the Skilling trial, in
particular, was that the community pressures and influences that were
brought to bear on that trial on all the participants in that trial,
in particular the jury, made it very difficult for the jury to hear,
understand, receive, and deliberate the evidence with an open mind.
KING: Owen LaFave, were you surprised to be asked to participate?
LAFAVE: Actually, I was. You know, I feel like I'm in great company.
I believe if I counted correctly there were 86 contributions and only
17 were attorneys.
I'm not sure if I'm in good company or bad company with those 17. All
very well written. But there's, you know, a few on Death row in there
and I'm lumped in with the 17.
KING: But you wrote about your wife?
LAFAVE: Correct.
KING: Because?
LAFAVE: We talk about beyond a reasonable doubt. I think in her
particular circumstance there was -- it was beyond a shadow of a
doubt that she did have a sexual relationship with one of her
students.
But yet I believe there's a double standard in society, as well as in
our legal system. Because, you know, she didn't serve any jail time.
If it was a male sexual offender -- Mark and I had a conversation
prior to the show tonight that he would have at least gotten three to
five years.
KING: So she became the opposite. She got the sole beneficiary double
standard.
LAFAVE: Exactly.
KING: It went all in her favor?
LAFAVE: Exactly.
KING: So she went beyond it...
GERAGOS: She got a real presumption of innocence.
KING: She was really beyond a reasonable doubt.
LAFAVE: You're absolutely right. There was clear DNA evidence and
taped conversation. There's an inequal penalty given out and I think
that's something as a society we need to readdress.
KING: And Gerry Spence, good to have you back with us, Gerry. You
titled yours "We, the Killers. Explain.
SPENCE: Well, beyond a reasonable doubt, as far as I'm concerned,
Larry, the death penalty is something that's very savage and
un-American and an issue we need to deal with.
And I've talked about it in detail in my essay. About the death
penalty, I mean, who really gets penalized? We don't penalize the
killer. How do you penalize somebody that you kill?
We certainly penalize his mother, the little old widow sitting back
there with nobody to hold her hand while they kill her son.
We punish the kids in the family when the father is executed. We
don't punish the killer.
KING: So we kill them.
SPENCE: We kill. And that's hardly any punishment.
KING: Not punishment?
SPENCE: No. What's really punishment is what we do to ourselves. We
become killers ourselves.
KING: How does that relate to reasonable doubt, Gerry?
SPENCE: I wondered that when I wrote the piece. And I said, beyond a
reasonable doubt, this is something that America has to put aside.
And we can't join people like China or join people like Iraq.
KING: No.
SPENCE: And engage in this kind of savage, primal sort of conduct. We
have to quit it. We have to quit it now.
KING: We're one of the few countries that still do it.
GERAGOS: I believe only three or four of the civilized -- so- called
civilized world.
KING: Let's get a definition.
What is a reasonable doubt, Mark?
GERAGOS: The legal definition is an abiding conviction of the truth
of the charge.
KING: Abiding conviction. What does abiding mean.
GERAGOS: Abiding means it's unrelenting, no matter, you're going to
still believe it.
A lot of trial lawyers will describe it, and of the people in the
book describe it as, can you wake up each morning with the same kind
of belief, the same certainty that the decision you made was right.
Other lawyers I've heard in arguments have said, is this something
that you would -- based on the information you have, would you make a
major decision based on this? Would you buy a house based on this
decision, marry somebody based on this decision.
I like based on a witness, do you believe that witness based on a
reasonable doubt, would you like that witness baby-sit your kids? So
there's all kinds of reasonable doubt definitions.
Somebody -- I wish I could remember who -- I think gave the best and
compared it to the justice of the Supreme Court who talked about
obscenity. You know it, when you see it. That is ultimately what
happens.
That ties into Daniel's comment about outside of the courtroom.
Because what happens is beyond a reasonable doubt really is a
function of the presumption.
If you have no presumption of innocence, if you start off with a
presumption of guilt then beyond a reasonable doubt is very low. It's
whatever you think it is because you started off with guilt.
If you've got a presumption of innocence, then it's a really high
standard. And you will, as Gerry will talk about with the death
panty, how you can put somebody to death if you are adhering to
beyond a reasonable doubt.
KING: We'll take a break. We'll be back to get the opinions of the
others while they define it. Fascinating topic. Don't go away.
(BEGIN VIDEO CLIP)
GERAGOS: We're not into arguing reasonable doubt in this case. We've
set the bar extremely high. And that's to prove that Scott is not
only factually innocent, but to figure out exactly who it is who did
this horrible thing to Scott's wife.
(END VIDEOTAPE)
KING: The book is "Beyond a Reasonable Doubt." By the way, any
proceeds I get from having written the introduction go to the Larry
King Cardiac Foundation.
We have an outstanding panel and a great group of people contributed
to this book. John Walsh is in it. Dr. Kevorkian is in it. He's going
to get out of jail soon.
PETROCELLI: Fellow Armenian, too.
KING: Daniel Petrocelli, your definition of reasonable doubt?
PETROCELLI: Well, I think Mark hit it on the head. It's a kind of
proof you would require such that you wouldn't hesitate in conducting
your own affairs, entrusting your child to another person.
Would you hesitate in trusting that child to that babysitter? If you
hesitate for even one moment, that's reasonable doubt right there.
And this is what the juries are typically instructed.
Now that said, as Mark points out, it's not as though the juries
actually understand and apply that standard. If they did, there would
be far, far more acquittals.
They may apply it depending on the outcome they feel the society and
the community in which they live are expecting.
You know, take, again, the Skilling case. Houston was expecting,
everyone in that town was expecting a conviction. It was asking too
much of 12 people to acquit Mr. Skilling and then go back to their
communities.
So reasonable doubt played a much lesser role in that trial.
Take the Simpson case by contrast, the criminal case. I heard Owen
talk about DNA evidence and taped evidence. Well, they had DNA on
Simpson. They had tapes on Simpson. They had more evidence on Simpson
than you could possibly imagine. Yet, the jury acquitted him in under
four hours.
And that's because what was important in that trial, in the minds of
those jurors was not the question of the quality or quantum of the
proof, but the question of race. That became a referendum on race
relations in this country.
That's what those jurors were wrestling with.
KING: Owen, you believe the woman in a sex case gets a break the man
doesn't get?
LAFAVE: Absolutely. It's abundantly clear. Obviously, Mary Kay
Letourneau (ph) probably was a catalyst behind the whole movement.
But of course, my wife -- and since then, there have been a number of
others. But time and time again, and recently in the news, female
sexual perpetrators get limited to no jail time. It's a huge
disservice.
KING: Why?
LAFAVE: There's a number of.
KING: What are you laughing at? Why?
GERAGOS: I'm laughing because it's every male's fantasy. I've said it
before. Every male who is sitting in a locker room in a junior high
school or a high school has a fantasy about the teacher. And I
mentioned it before -- look at Van Halen's "Hot for Teacher."
KING: But don't females -- do those females have a fantasy?
FER: We have a double standard when it comes do that. When you look
at it, look how the media portrays when it's a female teacher with
the student as versus a male teacher with the student. There's no
comparison. The male teacher looks like leach.
LAFAVE: You're right. And it's romanticized. I think part of the
problem is society doesn't view the boys as victims. Where I think
they are. You know, I did a lot of research when I wrote my book. And
I'm also working on a documentary as well. I talked to a number of
experts. Talked to a number of victims.
More than half the men out there thought that, good for the boy. Give
him a pat on the back.
Once I had the opportunity to sit down in the same room with these
people and hear their stories and how their lives are affected, they
are victims and these women need to go to jail.
KING: Gerry Spence, what's your definition of reasonable doubt?
SPENCE: I talk to juries. And when I talk to juries I say this. You
know, reasonable doubt really isn't for the defendant. It is for you.
I want you to be able to go home at night and lay your head down on
the pillow and close your eyes and say I am -- I'm satisfied. I don't
ever have to worry again. I'm applying reasonable doubt. And if
there's reasonable I'm going to acquit. And I'm going to sleep the
rest of my life.
I think reasonable doubt ought to be viewed from the standpoint that
it's not only for the criminal that's being charged, the alleged
criminal, but also those who charged him.
KING: If I'm -- I'm a juror. And circumstantial evidence is
presented. In other words, there's no eye witness to the scene. And I
have to judge what was sitting before me. And two psychiatrists make
competing arguments. How do I present it?
If I go into a courtroom, should we go into Baghdad based on the
evidence on the evidence of weapons of mass destruction? Could I have
had reasonable doubt? SPENCE: I think any reasonable person would
have had reasonable doubt about that.
KING: Couldn't we have reasonable doubt on almost anything?
SPENCE: Absolutely. Reasonable doubt -- here's another way I think
about reasonable doubt. I go to bed at night. I do a lot of my
thinking, as you must see, when I go to bed at night.
And I'm thinking about, did I turn the alarm on. I can't be sure. I'm
sure -- I'm not sure. And I have to get up to look. That's reasonable
doubt.
KING: That's well put. And we'll take a break and come back.
LAFAVE: It's also old age.
KING: Yes. We'll be back with more. Don't go away.
KING: We're back.
Mark Geragos, how well, then, do juries apply it or what's gone wrong
if we know 200 people have been released from death row who did not
commit the crime?
GERAGOS: People always forget about the DNA exonerations. The numbers
are astronomical.
KING: Did that mean the jury did not -- was not correct?
GERAGOS: Clearly what happened, at least in my experience, is if a
jury or jurors come to a case predisposed, no matter how great a
lawyer you are, you're not going to be able, in whatever period of
time the trial lasts, to get away from all the experiences they built
up for 10, 20, 30, 40, 50 years.
And all of a sudden you, as a lawyer, are going to turn them around
and reconfiguration the way they think. So what you need to do as a
lawyer is to make them understand.
Like Gerry says, it's not for the criminal or the accused criminal,
it's for you. You have to make the jury or the juror understand that
they are invested in this process as your client is.
And one of the ways to do that is the expression about Edward Bennett
Williams. You told me many times that one of the things he thought
was most important in any trial is to make the jurors have that
feeling that they're for the grace of God for a defendant.
If you can't do that, then it doesn't matter whether the standard is
a strong suspicion, which is low; preponderance, which is higher than
that; clear and convincing, which most people say, well, clear and
convincing, that sounds like a lot of evidence. That's lower than
beyond a reasonable doubt. PETROCELLI: Larry, you made the comment in
response to Gerry that couldn't you have reasonable Doubt about
anything?
KING: Yes.
PETROCELLI: Well, the truth is, if you had reasonable doubt about a
lot of cases, that's a good thing. Keep in mind that criminal cases
should be reserved for the most egregious affronts to society. These
are crimes against society.
We have a dual justice system in our country, and most can address
their grievances by going to civil courts.
Criminal cases should be reserved for the most serious wrongdoing
committed by people.
And to protect life and protect liberty and protect people's
freedoms, the government should only win and get convictions on very
clear-cut cases.
If there's any kind of a close call, like you said, there's two
psychiatrists or two psychologists testifying, you don't know who to
believe, you can't convict that defendant in that circumstance.
That's the way it should be.
KING: Owen, how do you look at reasonable doubt?
LAFAVE: I thought it was interesting a couple of the comments of Mark
and Danny and you yourself in your introduction wrote. We tell people
to assume innocence. And what you're asking people to do is not only
presume that the defendant is innocent, but you're also asking them
to leave behind any type of preconceived notions they have or any
opinions or really who they are as a person.
And I think it's virtually impossible for that to happen. And, you
know that burden of beyond a reasonable doubt and that innocence, I
think, is the core to our legal system.
But I think it's almost virtually impossible to actually, you know,
have that be exactly true.
KING: Isn't that true, Gerry?
SPENCE: You know, Larry, I have never, ever acquitted a client based
on reasonable doubt. If you start talking to juries about reasonable
doubt, what they say is, here's the jury.
Let me be the juror a minute. You know, Spence is out there talking
about reasonable doubt. That's just a cute lawyer trick. It really
means that he's guilty but he hasn't proven him guilty enough. The
prosecution hasn't done its job quite well enough. But they know and
we know and the defense knows and the defendant knows, everybody
knows and we know that he's guilty. So this reasonable doubt is just
lawyer talk, and let's get down to the nubbins here and get this case
decided in accordance with justice. That's what jurors do. Now, that
being the case, I have the responsibility, contrary to the law,
contrary to the business of presumption of innocence, I have the duty
to prove my client innocent. And if I don't carry that burden, my
client is going to be convicted.
KING: I never heard it put that way. Do you agree, Mark?
GERAGOS: There really is no presumption of innocence. There is no
presumption of innocence. If you get somebody to be honest with you,
when they see you next to your client on that side of the counsel
table, virtually everyone will tell you, if they're honest, you know,
where there's smoke there's fire. If this guy didn't do it, why would
he be here? Or if he didn't do this, he did something else.
So when you're asking jurors, at least my experience, whether or not
-- as you sit here, can you presume my client to be innocent and they
say, oh, yes.
And you say they just read off 15 charges in the indictment that
charged him with all these heinous crimes. Do you have any reaction?
And the juror said, oh, no, I have no reaction at all.
You know they're lying through their teeth at you, and you have to
understand that.
I don't know about Gerry, but I often prefer a juror that says, yes,
when I looked at him, I figured there's something here. Where there's
smoke there's fire.
At least then, I have somebody I can engage in an honest dialogue and
they're not lying through their teeth at you.
SPENCE: Can I tell a story?
KING: Yes, when we come back, we'll tell the story.
We'll take a break. We'll be right back. The book is "Beyond a
Reasonable Doubt." Don't go away.
(COMMERCIAL BRERAK)
KING: Welcome back to this Super Bowl eve edition of "LARRY KING
LIVE." We're discussing the book "Beyond a Reasonable Doubt." I wrote
the introduction.
Owen LaFave has as wonderful book out, "Gorgeous Disaster," the
tragic story of Debra LaFave.
All right, Gerry, what's the story?
SPENCE: OK. I'm defending a sheriff of having killed his undercover
agent, shot him between his eyes in the back seat of the sheriff's
car. It's been publicized all over. It's been on "60 Minutes "and all
the rest and everybody says this sheriff ought to be hung for killing
his undercover agent. So I go to the jury and I begin to do just what
Mark Geragos says. You've read all this. Do you think he's guilty?
Oh, no. Well, do you think he's guilty? Well, some of them say, well,
yes. A few of them said yes. Some more of them said yes. Then a bunch
of them said yes. Then there were three or four that said no.
I turned to my client and said, who should we take on this jury. His
name was Ed Cantrell. Ed, do you want me to take the liars that think
-- say you're guilty -- or innocent or should we take those that are
telling the truth that think that you are guilty?
He said, Gerry, he says, let's go with them that are telling the
truth. And I seated 12 jurors, all of whom said they believed he was
guilty. And they acquitted him.
PETROCELLI: The more publicized the case is, the more irrelevant
concepts like presumption of innocence and proof beyond a reasonable
doubt become. Because people who take great interest in reading about
upcoming trials, they form their opinions long before they're seated
as jurors.
Just as Gerry and Mark are saying, when you talk to these People
beforehand, they really fall into two categories. You have the
campaigners. Those are the people who want to get on the jury. Okay.
Because this is an interesting case. It's a high-profile case. Maybe
they can even write a book about it.
In the O.J. trial, everybody wrote books, including the bailiff.
Then you get the other juror, probably the honest person, but doesn't
want to have anything to do with this. So he or she might lie to get
off the jury. So it becomes exceedingly difficult in cases of great
public interest to get 12 good jurors.
And what's more difficult is that with the explosion of the media
covering the legal system over the last 10, 15 years, you have like a
collision between the world of entertainment and media, and the
justice system. It's becoming very, very tough to get good, solid,
quality justice delivered in high-profile cases, in particular.
KING: So what does that say, Daniel, for our legal system?
PETROCELLI: Well, I do think some reform would be very useful. I
think that federal judges, in particular, need to allow lawyers much
more time and leeway to question jurors.
In the O.J. civil trial, for example, when everybody on the planet
had an opinion about whether he did it or didn't do it, the judge
gave us 30 days.
In the Enron trial, there were three hours. And we had virtually no
opportunity to question the jurors.
And the other thing that plays into here is I think more people have
to become involved as jurors. Oftentimes you get a certain couple of
substrata or segments of society that participate as jurors. And a
lot of good people don't serve their jury time. And that's what
really needs to change, I think.
KING: Did your wife have a jury trial, Owen?
LAFAVE: No. They had a plea bargain before that. I would like to
comment as a layman, not being involved in the legal system and being
asked to serve on a jury.
You know, it's unfortunate to say it's a great honor to our country.
You look for every way to get out of it. Especially in the a case
like the O.J. case or Scott Peterson case where you have media
coverage and the potential to sit on a jury day in and day out for
the course of six months. That's a huge sacrifice to ask.
And the system weeds out good, potential jurors.
KING: So we don't get the best of the crop?
LAFAVE: Exactly.
GERAGOS: It's interesting. California has revamped the jury service
recently here and gone to -- it used to be, in the old days, you
would be on the hook for 30 days. Everybody had an excuse.
Then it went down to 10. Now you've got one day, one trial. Where
everybody comes in. As long as the case is under seven days, nobody
gets off for financial hardship.
If you have less than a seven-day case now in California you tend to
get a much better cross-section of jurors than you did previously.
That's not the case for what I call the super size cases. In cases as
Danny had, in cases like that, where they are lengthy cases and
there's pretrial publicity and ongoing publicity, it's virtually
impossible to ferret out what I call stealth jurors. These jurors,
who want to get on, have got an agenda. If you're not allowed to
question them, how do you identify them?
KING: This guy in Missouri, the alleged kidnapper, Gerry, of this
15-year-old boy, kidnapped at 11, held for four years. Can he be
presumed innocent?
SPENCE: I don't think anybody in these national cases can be presumed
innocent. In the national cases that you're guests have been involved
in. Everybody had their mind made up before they went in. It isn't
possible.
It really isn't possible today in this huge -- this time of media
where no matter what station you're on the television set, that case
is being discussed, people are being -- are talking about it. People
-- so-called experts tell you what the facts and the law is.
By the time the jury is selected, there isn't any possibility of
removing those preconceived ideas from the juror's head.
KING: We'll take a quick break. And we'll be right back with more of
our panel. The book is "Beyond a Reasonable Doubt." Owen LaFave's
book is "Gorgeous Disaster." We'll be right back.
KING: We'll take some individual cases as we get back.
Mark Geragos, was Scott Peterson judged beyond a reasonable doubt?
GERAGOS: No. The presumption was overwhelming. We had jurors who came
in there and absolutely had a preconceived notion. They wanted to get
onto that jury and they wanted to get on that jury to fry him. And we
actually caught three of those jurors in jury selection. I still
think a couple got through.
It's on appeal. And I don't have any doubt that the verdict in that
case will be reversed on a number of grounds.
And talking about what -- following up on what Dan said, you know, at
a certain point in these -- only in the most super sized of case, I
think we need to import the Contemptive Court Act that they have in
England. Where once you start, there is a clamp down on whatever
coverage. And you delay it until after the case is over.
KING: You get fined.
GERAGOS: It gives the judge real teeth with which to do so.
KING: Daniel, did Jeffrey Skilling have the presumption of Innocence?
PETROCELLI: He had no presumption of innocence. The day that he was
indicted, Larry, his indictment was announced in a nationally
broadcast press conference by, I think, the second highest official
of the United States Department of Justice, flanked by a number of
other officials pronouncing that they got their man. And that he was
a corporate crook.
Now, these are supposed to be officers of the court. And these are
supposed to be people who were paid to do justice, not, frankly, to
win a case, even though they're public prosecutors.
I mean, they trampled over the presumption of innocence. In jury
selection, they argued -- the government did, and convinced the
judge, that not only would we have a change of venue -- and we agreed
that we would change venue to any city in the country, other than
Houston -- we didn't get any jury selection. We didn't get the chance
to question jurors at all.
We ended up having jurors on our panel, Larry, who, going in, in
their questionnaires, said they thought these guys were guilty.
And afterwards some of the jurors have been interviewed publicly. And
at least one said publicly, the only question I had in my mind
throughout that whole trial is why they did it.
Now, that is doing an assault to the presumption of innocence. KING:
Owen, your wife had complete presumption of innocence, right? She had
the reverse of what we're talking about?
GERAGOS: When you look like her, you're presumed innocent.
LAFAVE: I suppose there was a certain element to that.
KING: So you think a beautiful woman has an edge.
GERAGOS: Yes, unless it's a jury trial and you have females in the
jury.
LAFAVE: And her case is a little unique. She did end up pleading
guilty to her charges and didn't get any jail time. We talked a
little bit about reform. Actually, what I would like to see, to take
some of the objectivity out of the sentencing, you know, is if you
commit a sexual crime, you get a minimum two years.
And of course, you know the Judge and all the parties involved can
argue why it should be more or should be less. Not that it should be
less, but minimum two years.
PETROCELLI: Larry, on that point that Owen is talking about, about
sentencing, another thing that has gone haywire in this country is
the sentencing that judges are meted out.
The highest sentences that are given in the federal system, higher
than murders, higher than terrorists, higher than kidnaps, are
officers and directors of public companies who get accused of
securities fraud, cases that wouldn't make it through the civil
system.
If they're convicted, though, in the criminal system, they go to jail
for life.
KING: Gerry, you had a story about being a prosecutor and on two
occasions sought the death penalty, one of them involving prosecuting
the Mark Hopkinson murder case. What was that about?
SPENCE: I've hated this death penalty from the time that I first
began practicing law 54 years ago. And I can remember as an early
prosecutor I got a death penalty case. I was a prosecutor.
And, you know, we've all sinned. And I was a prosecutor, got a death
penalty verdict against a sheepherder that shot his roommate while he
was asleep. And I just overdid that case. I was just too good for the
opposing counsel even when I was a kid.
And, well, come on, there aren't many great lawyers like you've got
on your program here sitting with you.
But in the Mark Hopkinson case, which I was appointed on as a special
prosecutor, it was a serial killer, in effect, and who killed people
while he was in jail, and tortured them through people that worked on
his behalf. And I argued to the jury that, you know, I hate the death
penalty, I said. The death penalty doesn't do us any good. And I had
all the arguments that I mentioned to you at the beginning of this
program.
But I want to tell you something, we're entitled to self-defense. And
this man can kill while he's behind bars. Maybe we need to defend
ourselves. I'll be darned they gave him the death penalty. And I
thought I was smart enough -- Gerry Spence thought he was smart
enough to figure out a way to get around that death penalty, but I
wasn't.
I went to the governor. I wrote to editorials in the newspaper. I did
about -- although this man was guilty, and horridly guilty, and did
the most heinous things. Nevertheless, they executed him.
KING: We'll be back with out remaining moments discussing "Beyond a
Reasonable Doubt," right after this.
KING: We're back with our panel.
Do many countries have, Mark Geragos, presumption of innocence beyond
a reasonable doubt?
GERAGOS: No, not a whole lot. In terms of the civilized world, I
think we're on a very short list. Most countries have -- there's a
lot of European countries have an inquisitorial system. A lot of them
have an investigatory system. A lot of them don't have defense
lawyers in the framework that they have.
KING: Are we most like Britain?
GERAGOS: Very similar. We have certain fundamental differences. But
that is our closest. And that's where our heritage comes from.
KING: Is it true, Daniel Petrocelli -- F. Lee Bailey told me this a
long time ago -- that the military court, you're presumed guilty. And
you must prove yourself innocent. However, it's a fairer trial
because you're judged by people who can put their personal things
aside and be disciplined enough to rule on the evidence alone.
PETROCELLI: Right. They're the equivalent of professional jurors
rather than lay people. There's been a lot of talk about
incorporating that into our modern jury system.
But before we sign off here, Larry, I do want to commend you for...
KING: I still have another segment. I could be wrong. But go ahead.
PETROCELLI: Let me commend you anyway. I want to commend you for
putting this collection of essays together in book you've come out
with. It's an extraordinary book because it talks about a lot of
imperfections and injustices in our system. I mean, the injustices
that Mark and Owen and Gerry describe in their essays I find to be
very appalling. And at the same time, very enlightening that you can
have that kind of a discourse.
Because after all is said and done, we still have the best system in
the world. And it's a system that can be made better if the people
who work in the system do a better job by the system.
But it's a wonderful diverse array of stories.
KING: Thank you.
PETROCELLI: And as a lawyer reading it, it was a very informative,
enjoyable book.
KING: Do you think things will change to your liking, Owen?
LAFAVE: Unfortunately, not. But I hope to be part of that by speaking
out, by writing the book "Gorgeous Disaster," working on my
documentary and having an opportunity to speak in formats like this.
I'm hoping to just create an awareness when it comes to female sexual
predators.
I'd like to believe that by my speaking out, it is doing some good.
And there will be some changes.
KING: Are there a lot of them?
LAFAVE: You would be surprised.
KING: Do we know?
LAFAVE: We don't have an actual number. But in the school system,
about one-third of all incidences involve female teachers.
KING: Do you think, Mark, that people bring their hatreds to the
courtroom?
GERAGOS: Absolutely. Absolutely. When I was talking about stealth
jurors, that's what I'm talking. I had experience with jurors who
were in there who had, not only agenda, but we've been able to
document that they wanted to fry the defendant. And they were lying
their way onto a jury in order to do it.
That's what is so scary about this whole concept of this -- the media
getting inside of the jury box. Because if that happens, you can't
ever, you can't ever get a fair trial. You can't ever have a
presumption of innocence.
And that really is one of the scariest things for somebody, who has
been in the system nowhere near as long as Gerry, but that's truly
the most frightening thing.
If these bloodthirsty bitches can insinuate themselves into the jury
box, you've got a real, real problem in America. KING: And now we'll
be back with our remaining moments on this edition of "LARRY KING
LIVE." The book, "Beyond a Reasonable Doubt." Don't go away.
RICK SANCHEZ, CNN ANCHOR: I'm Rick Sanchez in the CNN Newsroom. Where
we've been putting a lot of information together for you tonight.
We'll be bringing to you, first of all, family secret, bizarre
mystery. Twister tragedy as well that we're going to be focusing on.
All this, next in CNN Newsroom. And we're going to bring it to you
right here after "LARRY KING LIVE." Stay with us. We look forward to
seeing you.
KING: We're back with our panel, all are participants in this book
"Beyond a Reasonable Doubt." I wrote the introduction.
When a jury comes into a courtroom, Daniel, and the trial is going
on, or at the end of the trial, does the judge present to them what
beyond a reasonable doubt is?
PETROCELLI: In a very perfunctory way. At the end of the trial, the
jurors are given jury instructions, which define what reasonable
doubt is. But the judges typically leave it up on the lawyers in
closing arguments to explain it.
By then it's too late because the jurors have pretty much made up
their mind, and sometimes even before the trial begins, they've made
up their mind if they have an agenda.
KING: There is no written thing, this is what beyond a reasonable
doubt is.
PETROCELLI: Yes. Each state and federal circuit throughout the
country have their own working definition of reasonable doubt along
the lines that we were discussing at the outset of the program, which
are set forth and what are known as jury instructions that are put in
writing and given to the jury at the end of the case.
KING: Is it different federal to civil -- federal to local?
PETROCELLI: The instructions are virtually the same. They pretty much
mean the same thing. At the same time, if you ask a juror what does
reasonable doubt mean, I don't think they could tell you what it
means.
KING: Do you ever here from Debra LaFave?
LAFAVE: No, surprisingly not. We settled our divorce. She's working
as a waitress in a cafe in town. She's pretty much dropped off the
face of the map, which is good.
KING: What have you done with your life?
LAFAVE: My life has been amazing. I wrote the book "Gorgeous
Disaster." I'm working on a featured documentary right now, studying
the sexual abuse in our school system.
And, you know, I got remarried. And I'm still doing commercial real
estate in Tampa.
KING: What does your wife do? Don't teach?
LAFAVE: No. And she's brunette, both prerequisites. She's a
homemaker. We have a newborn son.
KING: Congratulations.
Gerry, you stay as active as ever?
SPENCE: Yes. Larry, I'm getting ready to go to Guantanamo to
represent some of those poor devils over there, to see whether or not
it's possible that we, Americans, who propose and tell the world that
we're a democracy and care, see if we can't get some of those basic
rights given to ordinary defendants over there.
KING: Have you been retained? I thought a lot of them can't have
lawyers, right?
SPENCE: Well, I've been asked to go over there by one of the kids of
the JAG Corps. He said, come over and help me. I need help, Mr.
Spence. So I'm getting ready to do that.
KING: Have you tried military before?
SPENCE: Never have. At my age, it's just a bright day to learn
something new.
KING: Do you still get excited, Mark?
GERAGOS: Every day. It really is -- being a criminal defense lawyer,
to my mind, there's no better job. Every day I get to go to court.
I'm in trial maybe 200 days a year. I get to talk to juries and I get
to cross-examine witnesses.
And it truly is, you know -- I think it's the most noble profession
that there is. We sit there. We take a lot of abuse. We are
denigrated.
But you are -- yeah, you're hooked with your client and everything
else.
When I got into this, I did it because Perry Mason was the good guy.
I always thought it was the noblest thing in the world. I always look
at it is we stand between a government, pushing the envelope and
trampling over you.
KING: We thank you all very much.
Mark Geragos, the famed Los Angeles defense attorney; Owen LaFave,
the ex-husband of Debra LaFave and author of "Gorgeous Disaster;"
Daniel Petrocelli the well known civil attorney. His essay in my book
is "Outside the Courtroom." And Gerry Spence. You can find out all
about that new book by going to gerryspence.com.
The book "Beyond a Reasonable Doubt" is available everywhere books
are sold.
If you're in the market, by the way, for a political thriller, check
out "America's Last Days" by Douglas McKinnon. Doug's a syndicated
columnist. He used to work at the White House and the Pentagon. A
good friend of ours. And he knows his way around Washington. It's a
provocative page turner that will have you asking, could this really
happen? The book is "America's Last Days" by Douglas McKinnon.
Thanks for joining us. Have a great rest of the weekend.
And my pick is the Indianapolis Colts, 27, the Chicago Bears, 7.
Don't get mad, Chicago.
Happy Super Bowl. Good night.
SHOW: CNN LARRY KING LIVE 9:00 PM EST
February 3, 2007 Saturday
Discussion of the Book "Beyond a Reasonable Doubt."
HOST: Larry King
GUESTS: Mark Geragos, Owen LaFave, Daniel Petrocelli, Gerry Spence
Defense attorneys who wrote a portion of the book "Beyond a
Reasonable Doubt" discuss the book.
LARRY KING, CNN HOST: Tonight Owen LaFave on his ex-wife, the sex
criminal teacher.
OWEN LAFAVE, HUSBAND OF DEBRA LAFAVE: She didn't serve any jail time
but if it was a male sexual offender he would have gotten three to
five years.
KING: Plus, three of America's highest profile attorneys, Mark
Geragos. He represented Scott Peterson.
MARK GERAGOS, DEFENSE ATTORNEY: The presumption of guilt was
overwhelming. They wanted to get onto that jury. And they wanted to
get on that jury to fry him.
KING: Attorney Daniel Petrocelli. He got a wrongful death charge for
O.J. Simpson, after a criminal trial that shocked the nation.
DANIEL PETROCELLI, DEFENSE ATTORNEY: They had more evidence on
Simpson than you could possibly imagine. And yet, the jury acquitted
him.
KING: And Gerry Spence.
GERRY SPENSE, DEFENSE ATTORNEY: I seated 12 jurors, all of whom said
they believed he was guilty. And they acquitted him.
KING: It's an hour that will change maybe the way you looked at
America's criminal justice system. "Beyond a Reasonable Doubt" next
on "LARRY KING LIVE."
There's a new book out that I am very proud to have written the
introduction for. It's "Beyond a Reasonable Doubt". There you see its
cover.
A lot of diverse people contributed to this book giving their
thoughts and opinions on this book that is what a reasonable doubt is
and what is beyond it.
To discuss it we have Mark Geragos, the famed Los Angeles defense
attorney. His clients have included Wynnona Wider, Michael Jackson,
Scott Peterson. His contribution to this book is titled, "I Know
Beyond a Reasonable Doubt that there was an Armenian Genocide."
Owen LaFave is here in Los Angeles as well, the ex-husband of Debra
LaFave -- we said this was a diverse participation -- the former
Florida school teacher, convicted of having a sexual relationship
with a 14-year-old male student.
Owen has written a book about the case titled "Gorgeous Disaster".
His contribution to this book, which I wrote the introduction, is an
essay called, "My Wife the Sex Criminal: Why the Double Standard?"
In Minneapolis, the famed attorney Daniel Petrocelli, who sought and
got a civil verdict against O.J. Simpson when the Browns and
Goldman's sued Simpson for the wrongful deaths of O.J.'s ex, Nicole,
and her friend Ron. His essay in the book is titled, "Outside the
Courtroom".
And in San Francisco, our friend Gerry Spence, once was a prosecutor.
Best known as a defense attorney. His clients have included Imelda
Marcos and the family of the late Karen Silkwood. Gerry's essay in
the book is called, "We, the Killers".
He's also a successful author. You'll see if you visit his website,
gerryspence.com, and that Gerry with a "G."
"Beyond a Reasonable Doubt" is the title. I wrote the introduction.
Let's begin right with the start with Mark Geragos.
Why did you choose the Armenian genocide to back up the point?
GERAGOS: I'm Armenian. All four of my grandparents fled the genocide.
Came to America as a result of the Turk's brutally killing a million
and a half Armenians.
It's topical today because now with Turkey trying to get into the
European Union, recognizing the Armenian genocide is a precondition
that a lot of the European countries have.
In fact, last week we suffered a tremendous loss in the community.
There was a story that's international and especially big in Europe
is the assassination of Huron Tadink (ph), who was the editor of the
paper.
He was an outspoken person talking about the genocide in Turkey. And
it's actually criminal in Turkey. Section 301 makes it a crime to
denigrate Turkishness. And by saying that there was genocide, that
apparently denigrates Turkishness. He was prosecuted.
KING: How does that relate to "Beyond a Reasonable Doubt?"
GERAGOS: The Turks never admitted there was genocide. There was a
book that talks about beyond a reasonable doubt. Here you've got a
crime, a crime against humanity. I know beyond a reasonable doubt
that there was genocide.
KING: I'm going to ask each guest to give us their definition, but,
first, to explain their article.
Daniel, what did you mean by "Outside the Courtroom?" PETROCELLI:
Larry, oftentimes too many people, lawyers included, believe that
justice depends solely upon what happens inside the courtroom. And in
high-profile cases, case of great public interest, that is not always
the case.
And I've had the opportunity to be involved in two such cases. One is
the one you mentioned, the Simpson trial, and the other one is the
one I finished last year, representing Jeffrey Skilling, the former
president of Enron in the criminal trial against him.
And drawing upon those two cases to make the point, I wanted to
explain to the readers how what happens outside the courtroom can
very much dictate and influence the verdict and the result that
occurs inside.
KING: In a sense, you were saying that Mr. Skilling did not get
beyond a reasonable doubt -- he did not get that factor?
PETROCELLI: I certainly do not believe that the proof in that case
rose to the level of proof beyond a reasonable doubt.
But the point that I was trying to make about the Skilling trial, in
particular, was that the community pressures and influences that were
brought to bear on that trial on all the participants in that trial,
in particular the jury, made it very difficult for the jury to hear,
understand, receive, and deliberate the evidence with an open mind.
KING: Owen LaFave, were you surprised to be asked to participate?
LAFAVE: Actually, I was. You know, I feel like I'm in great company.
I believe if I counted correctly there were 86 contributions and only
17 were attorneys.
I'm not sure if I'm in good company or bad company with those 17. All
very well written. But there's, you know, a few on Death row in there
and I'm lumped in with the 17.
KING: But you wrote about your wife?
LAFAVE: Correct.
KING: Because?
LAFAVE: We talk about beyond a reasonable doubt. I think in her
particular circumstance there was -- it was beyond a shadow of a
doubt that she did have a sexual relationship with one of her
students.
But yet I believe there's a double standard in society, as well as in
our legal system. Because, you know, she didn't serve any jail time.
If it was a male sexual offender -- Mark and I had a conversation
prior to the show tonight that he would have at least gotten three to
five years.
KING: So she became the opposite. She got the sole beneficiary double
standard.
LAFAVE: Exactly.
KING: It went all in her favor?
LAFAVE: Exactly.
KING: So she went beyond it...
GERAGOS: She got a real presumption of innocence.
KING: She was really beyond a reasonable doubt.
LAFAVE: You're absolutely right. There was clear DNA evidence and
taped conversation. There's an inequal penalty given out and I think
that's something as a society we need to readdress.
KING: And Gerry Spence, good to have you back with us, Gerry. You
titled yours "We, the Killers. Explain.
SPENCE: Well, beyond a reasonable doubt, as far as I'm concerned,
Larry, the death penalty is something that's very savage and
un-American and an issue we need to deal with.
And I've talked about it in detail in my essay. About the death
penalty, I mean, who really gets penalized? We don't penalize the
killer. How do you penalize somebody that you kill?
We certainly penalize his mother, the little old widow sitting back
there with nobody to hold her hand while they kill her son.
We punish the kids in the family when the father is executed. We
don't punish the killer.
KING: So we kill them.
SPENCE: We kill. And that's hardly any punishment.
KING: Not punishment?
SPENCE: No. What's really punishment is what we do to ourselves. We
become killers ourselves.
KING: How does that relate to reasonable doubt, Gerry?
SPENCE: I wondered that when I wrote the piece. And I said, beyond a
reasonable doubt, this is something that America has to put aside.
And we can't join people like China or join people like Iraq.
KING: No.
SPENCE: And engage in this kind of savage, primal sort of conduct. We
have to quit it. We have to quit it now.
KING: We're one of the few countries that still do it.
GERAGOS: I believe only three or four of the civilized -- so- called
civilized world.
KING: Let's get a definition.
What is a reasonable doubt, Mark?
GERAGOS: The legal definition is an abiding conviction of the truth
of the charge.
KING: Abiding conviction. What does abiding mean.
GERAGOS: Abiding means it's unrelenting, no matter, you're going to
still believe it.
A lot of trial lawyers will describe it, and of the people in the
book describe it as, can you wake up each morning with the same kind
of belief, the same certainty that the decision you made was right.
Other lawyers I've heard in arguments have said, is this something
that you would -- based on the information you have, would you make a
major decision based on this? Would you buy a house based on this
decision, marry somebody based on this decision.
I like based on a witness, do you believe that witness based on a
reasonable doubt, would you like that witness baby-sit your kids? So
there's all kinds of reasonable doubt definitions.
Somebody -- I wish I could remember who -- I think gave the best and
compared it to the justice of the Supreme Court who talked about
obscenity. You know it, when you see it. That is ultimately what
happens.
That ties into Daniel's comment about outside of the courtroom.
Because what happens is beyond a reasonable doubt really is a
function of the presumption.
If you have no presumption of innocence, if you start off with a
presumption of guilt then beyond a reasonable doubt is very low. It's
whatever you think it is because you started off with guilt.
If you've got a presumption of innocence, then it's a really high
standard. And you will, as Gerry will talk about with the death
panty, how you can put somebody to death if you are adhering to
beyond a reasonable doubt.
KING: We'll take a break. We'll be back to get the opinions of the
others while they define it. Fascinating topic. Don't go away.
(BEGIN VIDEO CLIP)
GERAGOS: We're not into arguing reasonable doubt in this case. We've
set the bar extremely high. And that's to prove that Scott is not
only factually innocent, but to figure out exactly who it is who did
this horrible thing to Scott's wife.
(END VIDEOTAPE)
KING: The book is "Beyond a Reasonable Doubt." By the way, any
proceeds I get from having written the introduction go to the Larry
King Cardiac Foundation.
We have an outstanding panel and a great group of people contributed
to this book. John Walsh is in it. Dr. Kevorkian is in it. He's going
to get out of jail soon.
PETROCELLI: Fellow Armenian, too.
KING: Daniel Petrocelli, your definition of reasonable doubt?
PETROCELLI: Well, I think Mark hit it on the head. It's a kind of
proof you would require such that you wouldn't hesitate in conducting
your own affairs, entrusting your child to another person.
Would you hesitate in trusting that child to that babysitter? If you
hesitate for even one moment, that's reasonable doubt right there.
And this is what the juries are typically instructed.
Now that said, as Mark points out, it's not as though the juries
actually understand and apply that standard. If they did, there would
be far, far more acquittals.
They may apply it depending on the outcome they feel the society and
the community in which they live are expecting.
You know, take, again, the Skilling case. Houston was expecting,
everyone in that town was expecting a conviction. It was asking too
much of 12 people to acquit Mr. Skilling and then go back to their
communities.
So reasonable doubt played a much lesser role in that trial.
Take the Simpson case by contrast, the criminal case. I heard Owen
talk about DNA evidence and taped evidence. Well, they had DNA on
Simpson. They had tapes on Simpson. They had more evidence on Simpson
than you could possibly imagine. Yet, the jury acquitted him in under
four hours.
And that's because what was important in that trial, in the minds of
those jurors was not the question of the quality or quantum of the
proof, but the question of race. That became a referendum on race
relations in this country.
That's what those jurors were wrestling with.
KING: Owen, you believe the woman in a sex case gets a break the man
doesn't get?
LAFAVE: Absolutely. It's abundantly clear. Obviously, Mary Kay
Letourneau (ph) probably was a catalyst behind the whole movement.
But of course, my wife -- and since then, there have been a number of
others. But time and time again, and recently in the news, female
sexual perpetrators get limited to no jail time. It's a huge
disservice.
KING: Why?
LAFAVE: There's a number of.
KING: What are you laughing at? Why?
GERAGOS: I'm laughing because it's every male's fantasy. I've said it
before. Every male who is sitting in a locker room in a junior high
school or a high school has a fantasy about the teacher. And I
mentioned it before -- look at Van Halen's "Hot for Teacher."
KING: But don't females -- do those females have a fantasy?
FER: We have a double standard when it comes do that. When you look
at it, look how the media portrays when it's a female teacher with
the student as versus a male teacher with the student. There's no
comparison. The male teacher looks like leach.
LAFAVE: You're right. And it's romanticized. I think part of the
problem is society doesn't view the boys as victims. Where I think
they are. You know, I did a lot of research when I wrote my book. And
I'm also working on a documentary as well. I talked to a number of
experts. Talked to a number of victims.
More than half the men out there thought that, good for the boy. Give
him a pat on the back.
Once I had the opportunity to sit down in the same room with these
people and hear their stories and how their lives are affected, they
are victims and these women need to go to jail.
KING: Gerry Spence, what's your definition of reasonable doubt?
SPENCE: I talk to juries. And when I talk to juries I say this. You
know, reasonable doubt really isn't for the defendant. It is for you.
I want you to be able to go home at night and lay your head down on
the pillow and close your eyes and say I am -- I'm satisfied. I don't
ever have to worry again. I'm applying reasonable doubt. And if
there's reasonable I'm going to acquit. And I'm going to sleep the
rest of my life.
I think reasonable doubt ought to be viewed from the standpoint that
it's not only for the criminal that's being charged, the alleged
criminal, but also those who charged him.
KING: If I'm -- I'm a juror. And circumstantial evidence is
presented. In other words, there's no eye witness to the scene. And I
have to judge what was sitting before me. And two psychiatrists make
competing arguments. How do I present it?
If I go into a courtroom, should we go into Baghdad based on the
evidence on the evidence of weapons of mass destruction? Could I have
had reasonable doubt? SPENCE: I think any reasonable person would
have had reasonable doubt about that.
KING: Couldn't we have reasonable doubt on almost anything?
SPENCE: Absolutely. Reasonable doubt -- here's another way I think
about reasonable doubt. I go to bed at night. I do a lot of my
thinking, as you must see, when I go to bed at night.
And I'm thinking about, did I turn the alarm on. I can't be sure. I'm
sure -- I'm not sure. And I have to get up to look. That's reasonable
doubt.
KING: That's well put. And we'll take a break and come back.
LAFAVE: It's also old age.
KING: Yes. We'll be back with more. Don't go away.
KING: We're back.
Mark Geragos, how well, then, do juries apply it or what's gone wrong
if we know 200 people have been released from death row who did not
commit the crime?
GERAGOS: People always forget about the DNA exonerations. The numbers
are astronomical.
KING: Did that mean the jury did not -- was not correct?
GERAGOS: Clearly what happened, at least in my experience, is if a
jury or jurors come to a case predisposed, no matter how great a
lawyer you are, you're not going to be able, in whatever period of
time the trial lasts, to get away from all the experiences they built
up for 10, 20, 30, 40, 50 years.
And all of a sudden you, as a lawyer, are going to turn them around
and reconfiguration the way they think. So what you need to do as a
lawyer is to make them understand.
Like Gerry says, it's not for the criminal or the accused criminal,
it's for you. You have to make the jury or the juror understand that
they are invested in this process as your client is.
And one of the ways to do that is the expression about Edward Bennett
Williams. You told me many times that one of the things he thought
was most important in any trial is to make the jurors have that
feeling that they're for the grace of God for a defendant.
If you can't do that, then it doesn't matter whether the standard is
a strong suspicion, which is low; preponderance, which is higher than
that; clear and convincing, which most people say, well, clear and
convincing, that sounds like a lot of evidence. That's lower than
beyond a reasonable doubt. PETROCELLI: Larry, you made the comment in
response to Gerry that couldn't you have reasonable Doubt about
anything?
KING: Yes.
PETROCELLI: Well, the truth is, if you had reasonable doubt about a
lot of cases, that's a good thing. Keep in mind that criminal cases
should be reserved for the most egregious affronts to society. These
are crimes against society.
We have a dual justice system in our country, and most can address
their grievances by going to civil courts.
Criminal cases should be reserved for the most serious wrongdoing
committed by people.
And to protect life and protect liberty and protect people's
freedoms, the government should only win and get convictions on very
clear-cut cases.
If there's any kind of a close call, like you said, there's two
psychiatrists or two psychologists testifying, you don't know who to
believe, you can't convict that defendant in that circumstance.
That's the way it should be.
KING: Owen, how do you look at reasonable doubt?
LAFAVE: I thought it was interesting a couple of the comments of Mark
and Danny and you yourself in your introduction wrote. We tell people
to assume innocence. And what you're asking people to do is not only
presume that the defendant is innocent, but you're also asking them
to leave behind any type of preconceived notions they have or any
opinions or really who they are as a person.
And I think it's virtually impossible for that to happen. And, you
know that burden of beyond a reasonable doubt and that innocence, I
think, is the core to our legal system.
But I think it's almost virtually impossible to actually, you know,
have that be exactly true.
KING: Isn't that true, Gerry?
SPENCE: You know, Larry, I have never, ever acquitted a client based
on reasonable doubt. If you start talking to juries about reasonable
doubt, what they say is, here's the jury.
Let me be the juror a minute. You know, Spence is out there talking
about reasonable doubt. That's just a cute lawyer trick. It really
means that he's guilty but he hasn't proven him guilty enough. The
prosecution hasn't done its job quite well enough. But they know and
we know and the defense knows and the defendant knows, everybody
knows and we know that he's guilty. So this reasonable doubt is just
lawyer talk, and let's get down to the nubbins here and get this case
decided in accordance with justice. That's what jurors do. Now, that
being the case, I have the responsibility, contrary to the law,
contrary to the business of presumption of innocence, I have the duty
to prove my client innocent. And if I don't carry that burden, my
client is going to be convicted.
KING: I never heard it put that way. Do you agree, Mark?
GERAGOS: There really is no presumption of innocence. There is no
presumption of innocence. If you get somebody to be honest with you,
when they see you next to your client on that side of the counsel
table, virtually everyone will tell you, if they're honest, you know,
where there's smoke there's fire. If this guy didn't do it, why would
he be here? Or if he didn't do this, he did something else.
So when you're asking jurors, at least my experience, whether or not
-- as you sit here, can you presume my client to be innocent and they
say, oh, yes.
And you say they just read off 15 charges in the indictment that
charged him with all these heinous crimes. Do you have any reaction?
And the juror said, oh, no, I have no reaction at all.
You know they're lying through their teeth at you, and you have to
understand that.
I don't know about Gerry, but I often prefer a juror that says, yes,
when I looked at him, I figured there's something here. Where there's
smoke there's fire.
At least then, I have somebody I can engage in an honest dialogue and
they're not lying through their teeth at you.
SPENCE: Can I tell a story?
KING: Yes, when we come back, we'll tell the story.
We'll take a break. We'll be right back. The book is "Beyond a
Reasonable Doubt." Don't go away.
(COMMERCIAL BRERAK)
KING: Welcome back to this Super Bowl eve edition of "LARRY KING
LIVE." We're discussing the book "Beyond a Reasonable Doubt." I wrote
the introduction.
Owen LaFave has as wonderful book out, "Gorgeous Disaster," the
tragic story of Debra LaFave.
All right, Gerry, what's the story?
SPENCE: OK. I'm defending a sheriff of having killed his undercover
agent, shot him between his eyes in the back seat of the sheriff's
car. It's been publicized all over. It's been on "60 Minutes "and all
the rest and everybody says this sheriff ought to be hung for killing
his undercover agent. So I go to the jury and I begin to do just what
Mark Geragos says. You've read all this. Do you think he's guilty?
Oh, no. Well, do you think he's guilty? Well, some of them say, well,
yes. A few of them said yes. Some more of them said yes. Then a bunch
of them said yes. Then there were three or four that said no.
I turned to my client and said, who should we take on this jury. His
name was Ed Cantrell. Ed, do you want me to take the liars that think
-- say you're guilty -- or innocent or should we take those that are
telling the truth that think that you are guilty?
He said, Gerry, he says, let's go with them that are telling the
truth. And I seated 12 jurors, all of whom said they believed he was
guilty. And they acquitted him.
PETROCELLI: The more publicized the case is, the more irrelevant
concepts like presumption of innocence and proof beyond a reasonable
doubt become. Because people who take great interest in reading about
upcoming trials, they form their opinions long before they're seated
as jurors.
Just as Gerry and Mark are saying, when you talk to these People
beforehand, they really fall into two categories. You have the
campaigners. Those are the people who want to get on the jury. Okay.
Because this is an interesting case. It's a high-profile case. Maybe
they can even write a book about it.
In the O.J. trial, everybody wrote books, including the bailiff.
Then you get the other juror, probably the honest person, but doesn't
want to have anything to do with this. So he or she might lie to get
off the jury. So it becomes exceedingly difficult in cases of great
public interest to get 12 good jurors.
And what's more difficult is that with the explosion of the media
covering the legal system over the last 10, 15 years, you have like a
collision between the world of entertainment and media, and the
justice system. It's becoming very, very tough to get good, solid,
quality justice delivered in high-profile cases, in particular.
KING: So what does that say, Daniel, for our legal system?
PETROCELLI: Well, I do think some reform would be very useful. I
think that federal judges, in particular, need to allow lawyers much
more time and leeway to question jurors.
In the O.J. civil trial, for example, when everybody on the planet
had an opinion about whether he did it or didn't do it, the judge
gave us 30 days.
In the Enron trial, there were three hours. And we had virtually no
opportunity to question the jurors.
And the other thing that plays into here is I think more people have
to become involved as jurors. Oftentimes you get a certain couple of
substrata or segments of society that participate as jurors. And a
lot of good people don't serve their jury time. And that's what
really needs to change, I think.
KING: Did your wife have a jury trial, Owen?
LAFAVE: No. They had a plea bargain before that. I would like to
comment as a layman, not being involved in the legal system and being
asked to serve on a jury.
You know, it's unfortunate to say it's a great honor to our country.
You look for every way to get out of it. Especially in the a case
like the O.J. case or Scott Peterson case where you have media
coverage and the potential to sit on a jury day in and day out for
the course of six months. That's a huge sacrifice to ask.
And the system weeds out good, potential jurors.
KING: So we don't get the best of the crop?
LAFAVE: Exactly.
GERAGOS: It's interesting. California has revamped the jury service
recently here and gone to -- it used to be, in the old days, you
would be on the hook for 30 days. Everybody had an excuse.
Then it went down to 10. Now you've got one day, one trial. Where
everybody comes in. As long as the case is under seven days, nobody
gets off for financial hardship.
If you have less than a seven-day case now in California you tend to
get a much better cross-section of jurors than you did previously.
That's not the case for what I call the super size cases. In cases as
Danny had, in cases like that, where they are lengthy cases and
there's pretrial publicity and ongoing publicity, it's virtually
impossible to ferret out what I call stealth jurors. These jurors,
who want to get on, have got an agenda. If you're not allowed to
question them, how do you identify them?
KING: This guy in Missouri, the alleged kidnapper, Gerry, of this
15-year-old boy, kidnapped at 11, held for four years. Can he be
presumed innocent?
SPENCE: I don't think anybody in these national cases can be presumed
innocent. In the national cases that you're guests have been involved
in. Everybody had their mind made up before they went in. It isn't
possible.
It really isn't possible today in this huge -- this time of media
where no matter what station you're on the television set, that case
is being discussed, people are being -- are talking about it. People
-- so-called experts tell you what the facts and the law is.
By the time the jury is selected, there isn't any possibility of
removing those preconceived ideas from the juror's head.
KING: We'll take a quick break. And we'll be right back with more of
our panel. The book is "Beyond a Reasonable Doubt." Owen LaFave's
book is "Gorgeous Disaster." We'll be right back.
KING: We'll take some individual cases as we get back.
Mark Geragos, was Scott Peterson judged beyond a reasonable doubt?
GERAGOS: No. The presumption was overwhelming. We had jurors who came
in there and absolutely had a preconceived notion. They wanted to get
onto that jury and they wanted to get on that jury to fry him. And we
actually caught three of those jurors in jury selection. I still
think a couple got through.
It's on appeal. And I don't have any doubt that the verdict in that
case will be reversed on a number of grounds.
And talking about what -- following up on what Dan said, you know, at
a certain point in these -- only in the most super sized of case, I
think we need to import the Contemptive Court Act that they have in
England. Where once you start, there is a clamp down on whatever
coverage. And you delay it until after the case is over.
KING: You get fined.
GERAGOS: It gives the judge real teeth with which to do so.
KING: Daniel, did Jeffrey Skilling have the presumption of Innocence?
PETROCELLI: He had no presumption of innocence. The day that he was
indicted, Larry, his indictment was announced in a nationally
broadcast press conference by, I think, the second highest official
of the United States Department of Justice, flanked by a number of
other officials pronouncing that they got their man. And that he was
a corporate crook.
Now, these are supposed to be officers of the court. And these are
supposed to be people who were paid to do justice, not, frankly, to
win a case, even though they're public prosecutors.
I mean, they trampled over the presumption of innocence. In jury
selection, they argued -- the government did, and convinced the
judge, that not only would we have a change of venue -- and we agreed
that we would change venue to any city in the country, other than
Houston -- we didn't get any jury selection. We didn't get the chance
to question jurors at all.
We ended up having jurors on our panel, Larry, who, going in, in
their questionnaires, said they thought these guys were guilty.
And afterwards some of the jurors have been interviewed publicly. And
at least one said publicly, the only question I had in my mind
throughout that whole trial is why they did it.
Now, that is doing an assault to the presumption of innocence. KING:
Owen, your wife had complete presumption of innocence, right? She had
the reverse of what we're talking about?
GERAGOS: When you look like her, you're presumed innocent.
LAFAVE: I suppose there was a certain element to that.
KING: So you think a beautiful woman has an edge.
GERAGOS: Yes, unless it's a jury trial and you have females in the
jury.
LAFAVE: And her case is a little unique. She did end up pleading
guilty to her charges and didn't get any jail time. We talked a
little bit about reform. Actually, what I would like to see, to take
some of the objectivity out of the sentencing, you know, is if you
commit a sexual crime, you get a minimum two years.
And of course, you know the Judge and all the parties involved can
argue why it should be more or should be less. Not that it should be
less, but minimum two years.
PETROCELLI: Larry, on that point that Owen is talking about, about
sentencing, another thing that has gone haywire in this country is
the sentencing that judges are meted out.
The highest sentences that are given in the federal system, higher
than murders, higher than terrorists, higher than kidnaps, are
officers and directors of public companies who get accused of
securities fraud, cases that wouldn't make it through the civil
system.
If they're convicted, though, in the criminal system, they go to jail
for life.
KING: Gerry, you had a story about being a prosecutor and on two
occasions sought the death penalty, one of them involving prosecuting
the Mark Hopkinson murder case. What was that about?
SPENCE: I've hated this death penalty from the time that I first
began practicing law 54 years ago. And I can remember as an early
prosecutor I got a death penalty case. I was a prosecutor.
And, you know, we've all sinned. And I was a prosecutor, got a death
penalty verdict against a sheepherder that shot his roommate while he
was asleep. And I just overdid that case. I was just too good for the
opposing counsel even when I was a kid.
And, well, come on, there aren't many great lawyers like you've got
on your program here sitting with you.
But in the Mark Hopkinson case, which I was appointed on as a special
prosecutor, it was a serial killer, in effect, and who killed people
while he was in jail, and tortured them through people that worked on
his behalf. And I argued to the jury that, you know, I hate the death
penalty, I said. The death penalty doesn't do us any good. And I had
all the arguments that I mentioned to you at the beginning of this
program.
But I want to tell you something, we're entitled to self-defense. And
this man can kill while he's behind bars. Maybe we need to defend
ourselves. I'll be darned they gave him the death penalty. And I
thought I was smart enough -- Gerry Spence thought he was smart
enough to figure out a way to get around that death penalty, but I
wasn't.
I went to the governor. I wrote to editorials in the newspaper. I did
about -- although this man was guilty, and horridly guilty, and did
the most heinous things. Nevertheless, they executed him.
KING: We'll be back with out remaining moments discussing "Beyond a
Reasonable Doubt," right after this.
KING: We're back with our panel.
Do many countries have, Mark Geragos, presumption of innocence beyond
a reasonable doubt?
GERAGOS: No, not a whole lot. In terms of the civilized world, I
think we're on a very short list. Most countries have -- there's a
lot of European countries have an inquisitorial system. A lot of them
have an investigatory system. A lot of them don't have defense
lawyers in the framework that they have.
KING: Are we most like Britain?
GERAGOS: Very similar. We have certain fundamental differences. But
that is our closest. And that's where our heritage comes from.
KING: Is it true, Daniel Petrocelli -- F. Lee Bailey told me this a
long time ago -- that the military court, you're presumed guilty. And
you must prove yourself innocent. However, it's a fairer trial
because you're judged by people who can put their personal things
aside and be disciplined enough to rule on the evidence alone.
PETROCELLI: Right. They're the equivalent of professional jurors
rather than lay people. There's been a lot of talk about
incorporating that into our modern jury system.
But before we sign off here, Larry, I do want to commend you for...
KING: I still have another segment. I could be wrong. But go ahead.
PETROCELLI: Let me commend you anyway. I want to commend you for
putting this collection of essays together in book you've come out
with. It's an extraordinary book because it talks about a lot of
imperfections and injustices in our system. I mean, the injustices
that Mark and Owen and Gerry describe in their essays I find to be
very appalling. And at the same time, very enlightening that you can
have that kind of a discourse.
Because after all is said and done, we still have the best system in
the world. And it's a system that can be made better if the people
who work in the system do a better job by the system.
But it's a wonderful diverse array of stories.
KING: Thank you.
PETROCELLI: And as a lawyer reading it, it was a very informative,
enjoyable book.
KING: Do you think things will change to your liking, Owen?
LAFAVE: Unfortunately, not. But I hope to be part of that by speaking
out, by writing the book "Gorgeous Disaster," working on my
documentary and having an opportunity to speak in formats like this.
I'm hoping to just create an awareness when it comes to female sexual
predators.
I'd like to believe that by my speaking out, it is doing some good.
And there will be some changes.
KING: Are there a lot of them?
LAFAVE: You would be surprised.
KING: Do we know?
LAFAVE: We don't have an actual number. But in the school system,
about one-third of all incidences involve female teachers.
KING: Do you think, Mark, that people bring their hatreds to the
courtroom?
GERAGOS: Absolutely. Absolutely. When I was talking about stealth
jurors, that's what I'm talking. I had experience with jurors who
were in there who had, not only agenda, but we've been able to
document that they wanted to fry the defendant. And they were lying
their way onto a jury in order to do it.
That's what is so scary about this whole concept of this -- the media
getting inside of the jury box. Because if that happens, you can't
ever, you can't ever get a fair trial. You can't ever have a
presumption of innocence.
And that really is one of the scariest things for somebody, who has
been in the system nowhere near as long as Gerry, but that's truly
the most frightening thing.
If these bloodthirsty bitches can insinuate themselves into the jury
box, you've got a real, real problem in America. KING: And now we'll
be back with our remaining moments on this edition of "LARRY KING
LIVE." The book, "Beyond a Reasonable Doubt." Don't go away.
RICK SANCHEZ, CNN ANCHOR: I'm Rick Sanchez in the CNN Newsroom. Where
we've been putting a lot of information together for you tonight.
We'll be bringing to you, first of all, family secret, bizarre
mystery. Twister tragedy as well that we're going to be focusing on.
All this, next in CNN Newsroom. And we're going to bring it to you
right here after "LARRY KING LIVE." Stay with us. We look forward to
seeing you.
KING: We're back with our panel, all are participants in this book
"Beyond a Reasonable Doubt." I wrote the introduction.
When a jury comes into a courtroom, Daniel, and the trial is going
on, or at the end of the trial, does the judge present to them what
beyond a reasonable doubt is?
PETROCELLI: In a very perfunctory way. At the end of the trial, the
jurors are given jury instructions, which define what reasonable
doubt is. But the judges typically leave it up on the lawyers in
closing arguments to explain it.
By then it's too late because the jurors have pretty much made up
their mind, and sometimes even before the trial begins, they've made
up their mind if they have an agenda.
KING: There is no written thing, this is what beyond a reasonable
doubt is.
PETROCELLI: Yes. Each state and federal circuit throughout the
country have their own working definition of reasonable doubt along
the lines that we were discussing at the outset of the program, which
are set forth and what are known as jury instructions that are put in
writing and given to the jury at the end of the case.
KING: Is it different federal to civil -- federal to local?
PETROCELLI: The instructions are virtually the same. They pretty much
mean the same thing. At the same time, if you ask a juror what does
reasonable doubt mean, I don't think they could tell you what it
means.
KING: Do you ever here from Debra LaFave?
LAFAVE: No, surprisingly not. We settled our divorce. She's working
as a waitress in a cafe in town. She's pretty much dropped off the
face of the map, which is good.
KING: What have you done with your life?
LAFAVE: My life has been amazing. I wrote the book "Gorgeous
Disaster." I'm working on a featured documentary right now, studying
the sexual abuse in our school system.
And, you know, I got remarried. And I'm still doing commercial real
estate in Tampa.
KING: What does your wife do? Don't teach?
LAFAVE: No. And she's brunette, both prerequisites. She's a
homemaker. We have a newborn son.
KING: Congratulations.
Gerry, you stay as active as ever?
SPENCE: Yes. Larry, I'm getting ready to go to Guantanamo to
represent some of those poor devils over there, to see whether or not
it's possible that we, Americans, who propose and tell the world that
we're a democracy and care, see if we can't get some of those basic
rights given to ordinary defendants over there.
KING: Have you been retained? I thought a lot of them can't have
lawyers, right?
SPENCE: Well, I've been asked to go over there by one of the kids of
the JAG Corps. He said, come over and help me. I need help, Mr.
Spence. So I'm getting ready to do that.
KING: Have you tried military before?
SPENCE: Never have. At my age, it's just a bright day to learn
something new.
KING: Do you still get excited, Mark?
GERAGOS: Every day. It really is -- being a criminal defense lawyer,
to my mind, there's no better job. Every day I get to go to court.
I'm in trial maybe 200 days a year. I get to talk to juries and I get
to cross-examine witnesses.
And it truly is, you know -- I think it's the most noble profession
that there is. We sit there. We take a lot of abuse. We are
denigrated.
But you are -- yeah, you're hooked with your client and everything
else.
When I got into this, I did it because Perry Mason was the good guy.
I always thought it was the noblest thing in the world. I always look
at it is we stand between a government, pushing the envelope and
trampling over you.
KING: We thank you all very much.
Mark Geragos, the famed Los Angeles defense attorney; Owen LaFave,
the ex-husband of Debra LaFave and author of "Gorgeous Disaster;"
Daniel Petrocelli the well known civil attorney. His essay in my book
is "Outside the Courtroom." And Gerry Spence. You can find out all
about that new book by going to gerryspence.com.
The book "Beyond a Reasonable Doubt" is available everywhere books
are sold.
If you're in the market, by the way, for a political thriller, check
out "America's Last Days" by Douglas McKinnon. Doug's a syndicated
columnist. He used to work at the White House and the Pentagon. A
good friend of ours. And he knows his way around Washington. It's a
provocative page turner that will have you asking, could this really
happen? The book is "America's Last Days" by Douglas McKinnon.
Thanks for joining us. Have a great rest of the weekend.
And my pick is the Indianapolis Colts, 27, the Chicago Bears, 7.
Don't get mad, Chicago.
Happy Super Bowl. Good night.