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Burden of Proof

Elian Rescuer Suing Janet Reno for $100M

Aired May 26, 2000 - 12:30 p.m. ET



DONATO DALRYMPLE, SUING OVER ELIAN RAID: It isn't every day that you have a submachine gun, or I would call -- I am a novice -- but an assault weapon stuck in your face without doing anything. I was just there at the house. I was sleeping there at an all-night prayer vigil, and to have a gun stuck in my face like that -- I tell you, it's terrifying. It's not America. It's not what our founding forefathers had planned for our futures here in America. And I just -- it's a crime against my civil rights.

ALAN DERSHOWITZ, DEFENSE ATTORNEY: I hope the courts do not validate the search in this case, because it would have a terrible precedential effect on searches involving other aliens, factories, homes in which undocumented aliens are living. It was a very sad day for America.

F. LEE BAILEY, DEFENSE ATTORNEY: I think that the warnings were given. Janet Reno agonized, all other solutions were explored, and I think this lawsuit is going to go nowhere.


GRETA VAN SUSTEREN, CO-HOST: The man who saved Elian from the sea files a $100 million lawsuit against Janet Reno. That is today on BURDEN OF PROOF.

ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. Roger is off today.

Last Thanksgiving day, Donato Dalrymple helped rescue young Elian Gonzalez from the ocean. Last month, he held Elian in his arms as INS agents took him from the home of his Miami family. And earlier this week, the Miami house cleaner who claims he has suffered sleeplessness, emotional distress, and loss of reputation, filed a $100 million lawsuit against Attorney General Janet Reno, her deputy and the INS commissioner.


DALRYMPLE: When you have a door busted down and you have a submachine gun put in your face and the terror, just think about what you have seen on Elian's face in the way out of the house, could you imagine if there was a video camera on the inside, what they were doing to us. I can tell you, I haven't slept normal since that time. And just when you went to that commercial, and I couldn't it see it on the monitor, but I could hear the screaming and yelling, that still terrifies me. I tell, I have been rendered a broken man over this. This has crushed my soul.


VAN SUSTEREN: The lawsuit was filed in federal court in Florida. A Justice Department spokesperson has said they "respond to these things in court."

Joining us today in Miami, the plaintiff in this case, Donato Dalrymple. And here in the Washington studio with me, former federal prosecutor Peter Spivack; former general counsel of the INS, Paul Virtue; and Judicial Watch chairman and founder Larry Klayman.

And in our back row. Didi Rouse (ph) and Maryanne Morris (ph).

Donato, let me go to you first. We just heard soundbyte from you, in which you described yourself as a broken man. What do you mean by that?

DALRYMPLE: Well, you know, there is no way to describe what happened that night. You know, when you put a gun in somebody's face, you know people are looking at physical injuries from the outside, the pepper spray is the physical part from the outside, but what happens to a man's soul, when you put a gun into his face. Could you imagine? I mean, it is unconstitutional to stick a gun in somebody's face when they have done nothing wrong. I mean, I was just there in a house, where there was -- it was very legal to be in that house, and it was a house that was breaking no laws.

VAN SUSTEREN: When you say that you are broken, I assume that the pain and agony was most intense and shortly thereafter. Does it get any better for you?

DALRYMPLE: Does it get any better?

VAN SUSTEREN: I mean, are you less broken today than you were a month ago?

DALRYMPLE: I mean, let me tell you something. Up until even this morning, it happens every day, and you know, you might think that this is fabricated, or exaggerated, but I can tell you, I wake up with nightmares on a daily basis, hearing the footsteps of people running around the house with guns, I mean, it's crazy. I mean, I never thought that would happen to me. I mean, you know, people act like I made a lawsuit every day of my life, I mean this is criminal what happened.

VAN SUSTEREN: Larry, you have filed the case on behalf of Donato, and you have asserted two causes of action within the complaint. What are those two causes of action? LARRY KLAYMAN, JUDICIAL WATCH: This is called a Bivens complaint, Greta, and it is against the individuals. It is against Janet Reno, the attorney general; It is against Eric Holder, the deputy attorney general; and it is against the INS commissioner, Doris Meissner. And it is under the Fourth and Fifth Amendments of the Constitution. And simply put, it says people have a right to be secure in their person, their own liberty rights, and not to have that invaded, and not to be unlawfully restrained.

But there are two bases that there is a violation here, and there ate actually more, but for purposes of simplifying. First of all, there were no valid warrants that allowed the Immigration and Naturalization Service to go into that house, as Professor Alan Dershowitz of Harvard said the other night on "LARRY KING LIVE."

VAN SUSTEREN: Which makes you a strange bedfellow, you and Alan Dershowitz.

KLAYMAN: Well, it is nice that we can cooperate sometimes in the interests of justice and civil rights. And secondly, even if they were allowed to be there, those agents, even if they had the right, in terms of a warrant, they used excessive force, and Donato and the innocent bystanders were gassed, and they had these guns thrust in their faces. Some of the bystanders were actually beaten up by these agents, that's a violation of civil rights.

VAN SUSTEREN: Paul, one of, sort of, the thrust of the case is about whether or not they had the right the go in, about this warrant. In your opinion, was the warrant lawful?

PAUL VIRTUE, FORMER GENERAL COUNSEL, INS: I think it was lawful. The INS certainly knew that Elian Gonzalez was in the house. They certainly had the cause to obtain the warrant. The INS had already sent notices to the family that it was going to revoke the parole of the boy, the temporary custody. Legally, the boy is in the custody of the attorney general.

VAN SUSTEREN: Had they actually revoked it at the time they got the warrant or the time they executed the warrant?

VIRTUE: No, I don't believe so. As a technical matter, the parole would have been revoked when they took the boy into custody, and then temporary custody would have been transferred to the father.

VAN SUSTEREN: You say it is a technical matter, we are talking about sort of a constitutional act, whether you can go in or can't go in. Is it an important issue whether or not the parole was actually revoked at the time they secured the warrant or executed it?

VIRTUE: I don't think the timing of the parole revocation is important here, no. Because the attorney general may revoke parole at any time for any reason.

VAN SUSTEREN: Larry, do you agree.

KLAYMAN: What the problem is here, Greta, and you talk about making false statements to a court, you know, the president has been accused of this, and there are disbarment proceedings.

VAN SUSTEREN: How are we getting to the president, we are talking about this, Larry. I know you've got a lot of other lawsuits, let's talk about this one.

KLAYMAN: I understand, but because -- so people understand the context, here they gave false sworn affidavits, they meaning the Justice Department, Janet Reno's office, and the INS, saying that the parole had already been revoked and that the child was here illegally. He wasn't here illegally.

VAN SUSTEREN: Peter, you are a former federal prosecutor, if a warrant has a false statement in it, whether deliberate or accidental, what does that do to the warrant?

PETER SPIVACK, FORMER FEDERAL PROSECUTOR: Well, it has potential to invalidate it, if it is a statement that goes to the very core for the reason of the execution of the warrant, and it is something that a neutral magistrate or a neutral judge in evaluating the warrant, if he knew, might not have issued the warrant.

VAN SUSTEREN: Does it make a difference if it was an accidental mistake or a deliberate one, to be deceptive, does that matter?

SPIVACK: Well, yes, I mean, there is some assessment of intent in falsity or accident that goes into it, as well as how integral this false statement or the accidental misstatement is.

VAN SUSTEREN: Paul, if there is a misstatement. do you think that's fatal to the warrant?

VIRTUE: Well, the court is going to have to take a look at the materiality of that statement. And if the questionable statement is that parole had already been revoked versus parole will be revoked when the boy is actually in the physical custody of the INS, the question is going to be: Is that material? I think the answer to that is no.

KLAYMAN: Let me tell you why it is, yes, Greta. It is because they have no basis to seize the child, effectively kidnap the child, if they should not have been in that home in the first place.

VAN SUSTEREN: Which is sort of unique because you have got both sides, in essence, saying the other side didn't have authority, so they both accuse each other of kidnapping, in essence.

KLAYMAN: And to say it is inadvertent, OK, is really disingenuous because here you have the Immigration and Naturalization Service and the Justice Department, who are not only lawyers, they are experts on this area of the law. So it couldn't have been inadvertent.

VAN SUSTEREN: All right, we are going to take a break. When we come back, we are going to have more on the case that Donato Dalrymple has filed against three government officials. Stay with us.


Texas death row inmate Michael Toney tried to auction off seats for his execution on the eBay Internet auction site. The auction was terminated by eBay before any bids were placed.

Inmates in Texas are allowed to have five witnesses at their execution. Toney wanted the proceeds from his auction to go to his estranged children.



VAN SUSTEREN: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the World Wide Web. Just log-on to We now provide a live video feed, Monday through Friday, at 12:30 p.m. Eastern time. If you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.

We are talking about a lawsuit filed in federal court in Miami, a $100 million lawsuit filed by Donato Dalrymple.

Donato, you are the plaintiff in the case, you brought this case. Do you expect that Marisleysis and other family members of Elian Gonzalez in Miami will be joining in the lawsuit? and what is your current relationship with them?

DALRYMPLE: Well, I would hope so. I mean, this is the only way to have justice and liberty in this country is be able to stand up and be counted for, and what they did was criminal. And I do believe that they will join. And I still have ongoing relationship with them.

VAN SUSTEREN: How often do you talk to them?

DALRYMPLE: I see them a little less now than when Elian was here because at the time Elian was here it was a very crucial time. Now everybody is trying to get back to somewhat of a normalcy of going to work, you know, we have to make a living, and of course we were trying to make a living through it all. But I see them two or three times a week.

VAN SUSTEREN: When was the last time you saw them?

DALRYMPLE: Well, I seen a couple of days ago. I haven't seen Marisleysis because our schedules are conflicting. So I really haven't been able the get ahold of her. She's been trying to, you know, stay away from the public because, you know, a lot of people are trying to scrutinize them from standing up for what is right.

VAN SUSTEREN: What does she say about the lawsuit? Does she say she intends to join?

DALRYMPLE: I haven't spoken to her about that yet.

VAN SUSTEREN: Paul, what do you make of the claim for $100 million?

VIRTUE: Well, it's a pretty significant sum, but, you know, it's a claim that Donato feels would remedy his constitutional rights violation, and so that's the claim he's making. It is a pretty significant sum.

VAN SUSTEREN: Larry, typically, two types of claims, there is compensatory to make someone whole for the injury, and there is something else called punitive to punish the person who has acted wrongfully. Assuming for the moment that you win your lawsuit, do you get compensatory and punitive in this type of action?

KLAYMAN: Yes, you do. And this was put together in the lawsuit. You can see the complaint on the Web site at Like CNN, we have a Web site. And you estimate damages when you first bring a case, but the large portion of this, a large portion of this is punitive, obviously, to prevent this from ever happening again.

Greta, just yesterday, we tried to serve Janet Reno in a very low-key way before she was going into a meeting of the Florida Bar at the Sheraton Hotel in Miami, it was a logical place to try to serve her. And she instructed FBI agents that she wouldn't accept that service or process, that's incredible for an attorney general.

VAN SUSTEREN: Well, how do government officials usually accept process?

KLAYMAN: This is, basically, so it never happens again. She's not taking it seriously.

VAN SUSTEREN: Well, I don't know about that, Larry, I think that there's a procedure, is there not, Paul, where government officials how they accept service in a case of a complaint?

VIRTUE: There is. Typically, a government official, like the attorney general, would not accept personal service directly in a lawsuit, that would be served on the Justice Department, and there are procedures for that to be done.

VAN SUSTEREN: Larry, you know, I've served a lot of lawsuits, that's sort of like an ambush to make a little bit of statement.

KLAYMAN: This is a personal case, this is not involving the Justice Department.

VAN SUSTEREN: I understand that, but I can't believe that the attorney general is going to duck service, especially when she is the attorney general.

KLAYMAN: Apparently she did, and it shows you there that does need to be a punishment here.

VAN SUSTEREN: I don't agree with you on that.

But let me go to you, Peter. Peter, one of the allegations is excessive force. How does a judge make a determination of what is excessive or not?

SPIVACK; Well, it is either going to be a judge or a jury who is going to make that assessment. It is based on the circumstances, whether it is beyond what was necessary to achieve the lawful means in this case. If there were -- a judge or a jury's judgment a way that the INS could have come in in a more peaceful manner, or if they injured people in a way that they did not need to.

VAN SUSTEREN: Is it 20/20 hindsight they look back, or do you look at the circumstances at the time? I mean, if you were the judge or the jury, how would you look at this?

SPIVACK: Well, I think you have to evaluate it under the circumstances, and you know, this was a very high-pressured situation. But it's going to be Mr. Dalrymple's case to make that the force was excessive, in light of the circumstance, and that it should not have been -- the search should not have been executed in the manner that it was.

VAN SUSTEREN: Paul, just assume hypothetically for a second that there is an error in the warrant that led to this action, could that be something that Larry could just go into court and say, get what we call summary judgment, just get a judge to rule, as a matter of law, it was wrong, or does this have to proceed to the jury?

VIRTUE: Well, the question about the lawfulness of the warrant is going to be a -- probably a threshold issue, and if the court...

VAN SUSTEREN: Assume that both sides agree that there was a misstatement in the warrant about whether or not parole had been revoked of Elian.

VIRTUE: And that it had been material, and then so that the warrant would not have been issued if that information had been known at the time. Then the question is going to be: Did federal agents act reasonably under the circumstances without a warrant? And the court is going to have to take a look at that issue and see whether it goes to the jury.

VAN SUSTEREN: Donato, what do you think is going to happen in this case?

DALRYMPLE: Well, you know, I think everybody is missing it here. You know, the attorneys were on the phone that night negotiating, Janet Reno wasn't negotiating in good faith. I mean, she knew the raid was going to go on.

VAN SUSTEREN: Let me stop you right there. Let me stop you from one second. Paul, does that make a difference?

VIRTUE: I don't believe so. The question there is -- I'm not even sure what the issue there is.

VAN SUSTEREN: Larry, does that make a difference?

KLAYMAN: It makes a huge difference because what Paul was basically saying was, they have to look at other factors. Now, here, everybody thought they had a deal, they thought this thing was worked out. So there was no reason to go in with machine guns, gassing people, and yelling epithets of four-letters words, if in fact they were negotiating.

VAN SUSTEREN: All right, let me go back to Donato. So what do you think is going to happen?

DALRYMPLE: Well, you know, I would hope that justice comes out of this. You know, the whole thing is is nobody wants the look -- this is very logical situation, where Janet Reno, from the very beginning back in January, she reacted in the wrong manner. She should have forced these families to get together. Instead, no, she bent to Fidel Castro to do what he wanted. You know, and it's so sad because, you know, the Gonzalez family were willing to do just about anything. They didn't want to betray the trust of this little boy, and give him over to strangers. Why wasn't Miguel forced to come there?

VAN SUSTEREN: Let me just stop you one second.

Paul, do you want to respond that about whether or not that's important whether she should have forced them to negotiate?

VIRTUE: Well, legally, Elian was in the custody of the Justice Department, as a legal matter, the entire time. The temporary custody is with the family. So, yes, I think it was reasonable for the attorney general to sit down and ask the family to negotiate, but she didn't have to.

VAN SUSTEREN: Hold that, lots facts in dispute, this will go to court, and we will find out what happens when it finally ends. But Donato Dalrymple, thank you for joining us.

When we come back, we go to Atlanta for the latest in the trial of a pro football player on trial for murder.


Q: On this day in 1868, President Andrew Johnson was acquitted of impeachment charges. How close was the vote?

A: The Senate failed to convict Johnson by just one vote.



VAN SUSTEREN: Professional football player Ray Lewis and two others are on trial for the January 31 stabbing deaths of two men in Atlanta.

Joining us now from outside the courthouse, CNN/Sports Illustrated's senior correspondent Nick Charles.

Nick, what's happening in the courtroom today? NICK CHARLES, CNN/SI SENIOR CORRESPONDENT: Well, Greta, two witnesses for the prosecution so far. Keva Walls (ph), who was part of the Ray Lewis entourage in the limo the night of the double stabbings, said that -- about the most substantive thing she talked about was that after the party, eventually -- and I say the party, the group -- eventually wound up back at Lewis' hotel. After the incident, she saw one of the members of the entourage dispose of an article in the garbage. Police and the prosecution is speculating that that article, that bag, could contain bloody clothing at the scene of the crime, and that he was disposing of that.

Later on, a taxi driver testified that he saw one man angrily pointing at one of the fallen victims and another man, athletic in build also, trying to urge him away. But the prosecutors, Greta, never asked if he could identify the men because obviously he couldn't.

VAN SUSTEREN: Which raises the issue, Nick, has anyone testified they saw Ray Lewis with a knife or involved in the brawl at the time of the murder?

CHARLES: Well, they have established physical contact. If this were a simple assault case, then Ray Lewis could be in jeopardy of being charged -- of being found guilty of assault. But that's the very most. Ed Garland, his defense attorney, and Don Samuel, they've tried to paint this picture of him as a peacemaker. And, Greta, I think they have succeeded in saying it was almost like this hockey fight where he was holding somebody off and somebody was holding his shoulders.

But the limo driver, who was a key prosecution witness going in, basically wilted on the stand. And the best he could say about Ray Lewis, a man he admires and a man he drove down from Baltimore, Greta, is that he saw him with his hand in a swinging motion but never actually saw him strike a blow.

VAN SUSTEREN: Peter, as a technical matter, what does it take to make someone an aider and abettor in a homicide?

SPIVACK: Well, I mean, I think you have to act -- prove that somebody acted in furtherance or acted to assist or acted to help cause the ultimate crime.

VAN SUSTEREN: What if you and I decided to beat somebody up and you didn't know that I had a knife and I killed a person, but you were in up to your eyeballs in the fight? Are you guilty of murder?

SPIVACK: Well, as an aider and abettor, probably not, because the government has to prove specific intent under aiding and abetting, which is that I specifically intended that you stab that person with a knife, which is a pretty difficult thing to prove in case like this.

VAN SUSTEREN: Nick, what's the reaction of Ray Lewis to this testimony?

CHARLES: Well, I think Ray Lewis, at this stage, again, I think the defense is quite happy. They -- off the record, one of defense attorneys told me that, you know, when talking about Duane Fassett, the limo driver, that if we knew this prosecution's witness was going to be this good, we would have had him on our side.

VAN SUSTEREN: What does the prosecution team look like at this point? Do they look pretty confident or they seem that they may be wilting, to use your term?

CHARLES: Well, they were definitely on the run yesterday. There were a couple of faux pas. Of course, Brady -- you know much about that -- came into play. The judge reprimanded and really scolded them for that. They had -- there was some underlying change of testimony that they had gathered a month before from one of the prosecution's witnesses that they never told the defense about, that Ray Lewis actually struck somebody. And then he rescinded that testimony in a written sense and they didn't let the defense know for six weeks. And the other thing, of course, was Duane Fassett. They had taken a note that he had trouble hearing and had trouble, often, understanding young blacks, and they didn't let the defense know about that for six weeks.

VAN SUSTEREN: All right, thanks, Nick.

That's all the time we have for today. Thanks to our guests and thank you for watching.

Later today on CNN, urban sprawl: Has every town in America become Anytown, U.S.A.? Phone, fax or e-mail your opinion to "TALKBACK LIVE." That's today at 3:00 p.m. Eastern, noon Pacific.

And join me on "NEWSSTAND" tonight at 10:00 p.m. Eastern for today's developments in the Ray Lewis trial.

And we'll be back Monday with another edition of BURDEN OF PROOF. We'll see you then.



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