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COURTSIDE with Roger Cossack

Case against Rae Carruth appears to be springing leaks

graphic COURTSIDE
CNN Legal Analyst Roger Cossack takes a look at legal issues in the news

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(CNN) -- Jury selection in the Rae Carruth murder trial has begun. And like the Ray Lewis case, a trial that seemed air-tight appears to be springing leaks.

Carruth, a former wide receiver for the NFL's Carolina Panthers, was arrested after Cherica Adams, his girlfriend who was seven months pregnant with his child, was shot to death on November 16, 1999. Although the child was saved, Adams died after struggling for almost a month.

While Adams was alive, Carruth was allowed to be out of jail on bail of $3 million. He promised that if she died he would turn himself into the police. Instead, when she died on December 15, Carruth took off. The FBI found him the next day hiding in the trunk of a Camry, with $3,000 in cash and bottles for his urine. Allegedly, he had been in the trunk for 21 hours.

The law is that flight can be evidence of guilt. The theory is: Why would an innocent person run away?

But Carruth says he ran because he knew he was innocent and when Cherica died, he lost his best witness who would establish his innocence. OK, so what other evidence is there? There are the dying declarations of Adams. Normally, statements given outside the courtroom are hearsay and the jury would not be allowed to hear it.

But there are exceptions to the hearsay rule, and one of them is "dying declarations." These statements become admissible when the declarant knows or believes that she is dying and, the theory goes, therefore would have little reason to lie. The objection to hearsay evidence is that someone else is saying what the speaker said, and of course, it is impossible to cross-examine the one who actually made the statement.

But what Adams said does not definitively clear up this mystery. Immediately after being shot and while in great pain, she called 911 and said, "I think he did it. I don't know what to think."

And then there is the motive, or at least what the prosecution is calling the motive. They claim that Carruth did not want to pay child support and instead paid Van Brett Watkins to kill her and the unborn child.

While motive never has to be proved by the prosecution, juries want to know why someone would commit such a crime. Carruth was a well-paid professional football player. It appears that money was not an issue with him.

And finally, in perhaps the most bizarre twist in this story, there is the aforementioned Van Brett Watkins, the individual that all parties agree pulled the trigger and killed Adams. Initially, Watkins claimed that Carruth paid him to kill Adams.

In fact, Watkins' story so convinced the prosecutor that they allowed him to plead guilty to second-degree murder with a penalty of 50 years rather than face the same death penalty as Carruth. In return, he promised to testify against Carruth and, of course, to tell the truth.

However, he has now changed his story. In a statement made to a prison sergeant, Watkins now claims that Adams death resulted from a drug deal gone bad. He claims that Carruth had promised to loan co-defendant Eugene Kennedy money to buy a load of marijuana from Watkins and then backed out on the deal.

On the night of the shooting, Carruth and Adams had gone to a movie and were driving in separate cars to their homes. Watkins now says that he and Kennedy were out looking for Carruth when they came upon Adams in her car.

"I had Kennedy pull along Cherica's car so we could see which way Rae was headed. I started waving my arms to get her attention," Watkins is quoted as saying in handwritten notes from a Mecklenburg County sheriff's deputy. "She slowed down. I think she maybe thought we wanted to pass her. I was motioning for her to roll down her window. I just wanted to ask her if she knew where Rae was going. She slowed down some more. She looked over at the car and seen us, she flipped me off. I lost it. I just started shooting. It was Rae's fault. If he had just given us the money none of this would have happened."

The prosecution now finds itself having to argue to the jury that Watkins should be believed when he tells the version of the facts that paints Carruth as the instigator of the murder, but also arguing to the same jury that Watkins is a liar and should not be believed when he tells this new story that exonerates Carruth.

To say that juries have a tough time with this kind of argument is to state the obvious. Like any criminal prosecution, this case must be proven beyond a reasonable doubt to all 12 jurors and, of course, so far there has been no evidence at all presented to the jury.

But with the lack of any physical evidence or DNA to connect Carruth to the crime and no eye witnesses that we know of, this may turn out to be the prosecutors' nightmare.

 
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