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Burden of Proof
Fmr. Defendant Ray Lewis Takes the Stand in Post-Super Bowl Double Murder TrialAired June 6, 2000 - 12:30 p.m. ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
(BEGIN VIDEO CLIP)
PAUL HOWARD, FULTON COUNTY DISTRICT ATTORNEY: Did you all have any conversation at that time?
RAY LEWIS, PROSECUTION WITNESS: Yes.
HOWARD: And what was it about?
LEWIS: It was about some knives that they had purchased.
HOWARD: And what was that conversation?
LEWIS: Nothing really. He just -- when they got back in the car, they was like, hey, man, check these knives out. And they tossed me one of the knives and I caught the knife, and I was like, man. I said, you all tripping with these knives.
HOWARD: Who did you see with that knife?
LEWIS: I saw Joseph Sweeting and I saw Reginald Oakley with the knife.
(END VIDEO CLIP)
GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: Once a defendant, now a witness for the prosecution, NFL all-pro Ray Lewis takes the stand in a post-Super Bowl double murder trial.
ANNOUNCER: This is BURDEN OF PROOF, with Roger Cossack and Greta Van Susteren.
VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. Last month, Baltimore Ravens linebacker went to trial as a murder defendant in the January 31 stabbing deaths of two men. But today, Lewis became a witness for the prosecution.
ROGER COSSACK, CO-HOST: Now, in today's testimony in Fulton County Superior Court in Atlanta, Lewis was questioned about his trip to the Super Bowl by district attorney Paul Howard.
(BEGIN VIDEO CLIP)
LEWIS: When he walked up to the guy, that's when the guy hit him in the head with the bottle.
HOWARD: And did you see the bottle?
HOWARD: And what kind of bottle was it?
LEWIS: Champagne bottle.
HOWARD: Did you see where he hit him?
LEWIS: I saw him hit him over the head.
HOWARD: What happened once he was hit over the head?
LEWIS: Once he hit over the head, in all honesty, all hell broke loose.
(END VIDEO CLIP)
VAN SUSTEREN: Joining us today from Atlanta is criminal defense attorney and former U.S. attorney Joe Whitley. Here in Washington, former federal prosecutor Steve Berk, criminal defense attorney Bernard Grimm, and criminal defense attorney Ron Sullivan.
COSSACK: And in the back row, Christine Dowd (ph), Angela Cho (ph) and Tracy Strickland (ph).
But first, I want to go right to Joe Whitley in Atlanta.
Joe, it's rather unusual, I think, at least in my experience, to have on one day a person who is charged with a capital offense -- excuse me, of a murder -- to a murder where he could have spent the rest of his life in prison, and two days later he has pled guilty to a misdemeanor and testifying on behalf of the prosecution. To me, that indicates a certain weakness, to say the least, in the prosecution's case.
JOE WHITLEY, CRIMINAL DEFENSE ATTORNEY: Right. I think this event has either been a vindication of Paul Howard's case or other people might say, well, it's salvation for his case. But nonetheless, it's quite unusual. And I think these defense counsel were very united throughout most of these proceedings. And then a fissure began to develop, I think, once a deal was cut that was too good to be turned down with the district attorney's office, which is this probation misdemeanor plea.
VAN SUSTEREN: Bernie, I have no idea what was going on behind the scenes in this defense team, but in most cases the prosecution is the enemy. Suddenly the prosecution turns out to be your friend. What do you tell your client? I mean, how do you tell your client to cooperate with the prosecution?
BERNARD GRIMM, CRIMINAL DEFENSE ATTORNEY: You know, this is a bizarre turn of events because usually, prior to trial, you know who is, as we say, snitching and who is not. But I think what Mr. Garland probably told Mr. Lewis is, in football parlance, we're simply going to change teams now. You're on another team and they want you to testify. And if you do testify, you're going to get your freedom, you're going to be able to have your $24 million contract and go back to the Ravens. And I think it was a deal he couldn't turn down.
VAN SUSTEREN: Ron, you know, these were his two friends sitting at that counsel table for the past couple weeks. They've been his friends for an awful long time. Now he's up there testifying for the prosecution, essentially, against his friends. What does a defense lawyer say to prepare a client to do that?
RON SULLIVAN, CRIMINAL DEFENSE ATTORNEY: Well, you have to tell your client to cooperate consistent with the terms of the agreement that you've entered into with the government. If you decided to take that step, then you have to tell your client, you have to put your friendships behind you, any sense of obligation behind you, and testify truthfully consistent with your agreement, because your liberty is at stake.
COSSACK: Let's talk about that agreement, Steve, as a former prosecutor. I mean, this to me is a bizarre agreement. First, the whole notion of dropping it down from a crime where you're charged -- the ultimate crime, murder, to now a misdemeanor obstruction of justice. I mean, I have said that if they waited two more days, he probably could have got double parking. He couldn't have gotten much lower. But the interesting thing is, the prosecutor made him plead guilty to obstruction of justice, in effect, lying to the police officer. Doesn't that sort of set your -- set this man up for cross- examination?
STEVE BERK, FORMER FEDERAL PROSECUTOR: Absolutely, Roger. I mean, look, it's a very, very serious offense. I mean, this is obstruction of justice of a double murder. And in some sense...
COSSACK: But it's a misdemeanor.
BERK: Well, it is a misdemeanor, Roger, but it's a serious offense. And in some ways, Mr. Lewis is looked at now as a hero in that, you know, he's coming forth and testifying, but he has pled guilty to a crime, and that can't be forgotten.
VAN SUSTEREN: Yes, but he got a "get out of jail free" card. It wasn't like a lesser offense of murder. This was something that happened after the murder, sometime after it that he was lying to the police. I mean, he got a complete walk. In fact, what Ed Garland said yesterday, his lawyer, on BURDEN OF PROOF, is that the prosecutor said, he's innocent. That's what he told Ed Garland.
COSSACK: Joe, let me just jump in here with you for a second. The notion of pleading guilty to a misdemeanor, I mean, isn't that a signal that, you know, one, we don't have anything on this guy, but doesn't that set him up in terms of cross-examination when he says he's lied?
WHITLEY: I think so. It does set him up in terms of cross- examination. But I think one thing I'd add is I don't know how this cross-examination is going to proceed because it's going on, I assume, now, or will be going on. And I think that they're -- the defense attorneys are going to have to be careful about how they cross-examine him because the jurors are going to be perplexed, just like we are, about how did this happen and why is Ray Lewis now cooperating. So if they come down too hard on him, they themselves will be in a contradictory position.
But it is extremely unusual. I've never seen anything like this in my experience. And I assume Paul Howard, in his experience, I think he had to do something, take a bold step here -- depending on one's point of view whether it is a bold step or not -- and try to salvage his prosecution, because I think, likely, what Judge Bonner would have done is she would have granted a directed verdict as to Lewis. And I think, as Ed Garland said, I think this is better than a directed verdict for Lewis because at least he's now cooperating, he's pled to a misdemeanor, and I think he's -- his career is before him.
VAN SUSTEREN: Bernie, Ed Garland had one of the best seats in the courtroom yesterday, right up front. What's the defense attorney do now when a client sits on the witness stand? Do you make yourself known to the jury, you sort of hide in the courtroom?
GRIMM: You know, it's quite bizarre because you sat there for a week and a half fighting for your client's innocence, and now all of a sudden you've moved from the left side of the podium to the right side of the podium.
VAN SUSTEREN: But behind the bar. You don't sit next to the prosecutor. No, you're not in the well anymore. You're off the playing field, so to speak.
I just find it unusual. I find it uncomfortable to represent people in those situations. It's a necessary evil of our business, but he got a heck of a deal.
VAN SUSTEREN: Well, if he's innocent, he's innocent and they should cut him loose. And, frankly, from the facts, at least established, he lied to the police when they were investigating. So it sounds like he certainly is as guilty as he pled on the obstruction.
GRIMM: Oh, yes. And, actually, Roger and I had a little bit of time to watch his -- the cross-examination from Sweeting's lawyer. And to say this guy's a state's witness is it's not going too well for the state. If they -- if Howard called Lewis to stop this ship from sinking, he's not doing a good job of bailing the water because Lewis is exculpating Sweeting left and right, from what I saw.
COSSACK: All right, let's take a break. When we come back, the defense began this cross-examination of star witness Ray Lewis already. Stay with us.
(BEGIN LEGAL BRIEF)
O.J. Simpson says he is willing to take a polygraph test, possibly in a pay-per-view television event. Simpson also plans to talk to the public for a fee via the Internet, with part of the proceeds benefiting The Innocence Project, which works to free wrongly convicted prisoners.
(END LEGAL BRIEF)
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(BEGIN VIDEO CLIP)
LEWIS: Well, at the time when I was walking back up, it was, Reginald was the more -- the aggressor, at that time when I was walking up. He was like, you know, really hostile at the other two guys that were standing there in front of Reginald, Joseph and Kwame.
(END VIDEO CLIP)
COSSACK: This morning in Atlanta, NFL All-Pro Ray Lewis testified about the events surrounding his trip to the Super Bowl. Following the game, two men were stabbed during a street brawl outside a trendy Atlanta nightclub. Prosecutors negotiated a plea agreement with Lewis and his legal team on Sunday before he took the witness stand.
All right, Ron, now I'm going to make you this defense lawyer in this case, you have to start cross-examining. What do you do with Ray Lewis? because you've seen ahead of time the statement that he has given to the police, or to the district attorney on Sunday before he came in to testify. You've seen it and you've read it, some ways he helps you, and some ways he doesn't -- he hurts you a little bit. How do you go after him?
SULLIVAN: Well, this will be an interesting cross and somewhat complex. Normally for a snitch witness, the defense attorney would just go after him with both guns drawn and indicate that he's clearly lying just because he's getting this wonderful great deal, this get- out-of-jail-free card. In this instance, much of what Ray Lewis is saying can be useful to the defense, as Bernie pointed out before the break. So in some ways, particularly if you are Sweeting's lawyer, you might want to accredit what Ray Lewis is saying, and then be able to argue to the jury: Look, ladies and gentlemen, even the government's witness proves my case, even the government's witness indicates that these guys, these other guys, started the fight by hitting someone over the head with a bottle.
COSSACK: Let me just interrupt. Does that mean then that you wouldn't go after him and say: Look, just three days ago you were sitting here facing life imprisonment, now you made a sweet deal.
VAN SUSTEREN: Or two. COSSACK: Are you saying what the government wants you to say?
SULLIVAN: Not necessarily, but it would in some ways effect how strenuously you go after him on that. But I think, you know, Oakley's counsel, I think, has to go after him because, I think, he's in more jeopardy. And you make that deal, you make that known in cross- examination that, you know, you risk life in prison, you would have lost millions and millions of dollars, your football career, your houses, your cars; and now what do you get, you get to go home and you bring that out on cross-examination and let the jury know this guy has an interest in fabricating.
VAN SUSTEREN: Bernie, one of the things that I would consider if I were trying this case as a defense attorney, is sort of splitting the baby in half and sort of getting in cahoots with my co-defendant lawyers; saying: You go after him with a vengeance, I'll rehabilitate him and I'll do it as -- for your client as well. Would that be something you might consider?
GRIMM: That's exactly what I would say, because it appears a little bit uncomfortable if you split your own cross-examination into crediting him in your A part, and then the B part, go after him. Because the jury is going to say: Well, what the -- does the defense lawyer believe him or not believe him. So that's an excellent way to do it, you just have one lawyer who goes for the jugular and the other lawyer sort of builds him up and gets out all the critical, favorable facts.
COSSACK: Joe, I thought it was very interesting the way the cross-examination began in this case. What happened was is that the defense lawyer got up and he said: Are you the same Ray Lewis that the prosecutor got up just three weeks ago and said was guilty of this crime. And he was wrong, wasn't he, meaning the prosecutor. And he said -- Lewis said: Yes, that's right, he was wrong. And he said that you -- there was going to be evidence that you stabbed people, once again the prosecutor was wrong, wasn't he? And Lewis said: Yes, that's right, he was wrong. And the indication I felt that he was getting to was the point of: Look, this prosecutor was wrong about you, ladies and gentlemen of the jury, he's wrong about my client, too.
WHITLEY: Right, I think that he's trying to establish that this prosecution can't shoot straight and I think that's always a good thing to do no matter who your client is. And I think it establishes a credibility gap for Paul Howard with this jury, a huge credibility gap; which we are going to hear a lot more about in closing arguments, just almost the way you laid it out there, Roger. And I'm sure you've done that before in cases you've tried. It is a credibility issue for the prosecution.
In a way, I would handle this witness in a very gentle fashion. I don't necessarily disagree with my colleagues, but I think one way to get him to cooperate with you is to handle him gently and just lead him along the path and say that, you know, why didn't you come forward earlier, and destroy his credibility. I don't think that the government still has made out a case that will get them past the reasonable doubt burden, and I think more...
VAN SUSTEREN: You know, Bernie, what's sort of unusual about all these cases, we talk about what happens in a courtroom, cross- examination, direct examination, but even sort of the sort of psychodrama that goes on along the side. I mean, yesterday or the day before Ray Lewis was having lunch probably with different people than he's having lunch with today. I mean, how bizarre is it to switch sides?
GRIMM: It's -- I mean, the theater of war, the dynamic of that is just -- the psychology of the courtroom has now just been turned on its head. And like I said before, it is very rare that this happens in the midst of trial because it's very unfair to the defendants. Their lawyers would have wanted to prepare a cross-examination for Lewis, they would've wanted to open on it...
VAN SUSTEREN: Oh but this was an easy one, this is -- come on, you guys, both you guys could do this cross-examination standing on your head if it is a question of bias.
GRIMM: No, no, I -- yes I could.
VAN SUSTEREN: I mean here's a guy, he had two life sentences, now he gets a get-out-of-jail-free card, he was a liar to the police, and now the prosecution says he's perfect.
BERK: Look at Roger's...
GRIMM: He pled to obstruction of justice. You could start there by saying what you pled guilty to is lying to the police.
GRIMM: The last time someone asked you to give an official word about this incident you lied.
VAN SUSTEREN: Right, so it's an easy cross-examination.
GRIMM: Yes, I mean it's...
VAN SUSTEREN: I mean, the hard thing is the fact is that he gives you a little good stuff and he also hurts you, and to try to do the balancing act is like: how do you use what he offers you and go after him for what he hurts you with?
GRIMM: That's the trick, I'd agree.
COSSACK: You know Steve, what do you do? I mean, you are the prosecutor, now you have this guy who you're hoping is going to make your case for you, and he doesn't put a knife in the defendant's hands. He talks about the fact that these other people were the aggressors, one of them -- two of them were pulling one of the defendants along behind a tree, and two big guys, and the defense a little guy. Is this the guy you want to bank your case on?
BERK: No, Roger, look, I mean, and you made a very good point. I mean, the prosecution is now on trial, and that's really what the focus has become. Ray Lewis is not on trial anymore, the prosecutors are on trial. And they've got to...
VAN SUSTEREN: They are on the run actually, they're totally on the run.
BERK: And they're on the run, I mean, they've got a tough, tough fight here. And really, you know, as a prosecutor you really have to go back and say: Look, there's two dead people here, there's two dead people here and these guys were involved. And you do the best you can but that's the most that you can do really with the jury.
VAN SUSTEREN: And the truth is is that we really don't know what will happen. I mean, it looks like they are on the run but could they -- they could very easily get two convictions, but we are going to take a break.
Up next, when police were investigating this double murder, Ray Lewis wasn't forthcoming with information about what he knew. So why should jurors believe him now? Stay with us.
Q: Using what logic did a Texas lawyer argue that a sleeping lawyer can be competent?
A: In an appeals case, a Texas deputy solicitor general said that if an alcoholic lawyer or an attorney with psychotic instability can be deemed competent, so can a lawyer who dozes off during trial.
VAN SUSTEREN: Yesterday, Ray Lewis pleaded guilty to obstruction of justice for lying to the Atlanta Police during the investigation of this double murder. Today, he was on the witness stand testifying about the events of January 31.
Steve, so far, Lewis has not particularly hurt Sweeting. In fact, he said two guys were dragging him away and he didn't testify that he saw a knife in Sweeting's hands. Probably a pretty good self- defense. I don't pretend to know what the results in this case is going to be, but as a prosecutor, at this point, if it looks self- defense, would you consider making a deal now with Sweeting and asking for his testimony against Oakley, or is that just a stake through your heart?
BERK: I don't think so, Greta. I mean, I think what a prosecutor needs to do is he puts his best evidence forward and he lets the jury decide. I mean, sometimes you're going to lose cases, but that's what you have to do, and that's what your obligation is.
VAN SUSTEREN: But what if you believe, at this point, having heard the testimony now -- and it's under cross-examination -- that, indeed, it is self-defense. Do you have a duty to dismiss it, or do you throw it in the lap of the jury?
BERK: No, as a prosecutor, you have the -- your duty is to do justice, it's not to win cases. And so if you think that justice is served by pulling back your case, by withdrawing your case, by letting this person walk, then you absolutely have a duty to do that.
VAN SUSTEREN: Would that ever happen, Bernie?
GRIMM: I don't know, but...
VAN SUSTEREN: The prosecutor would just say, OK, self-defense, now we're going to drop this one too.
GRIMM: No, no, not in my lifetime, certainly not in yours, and you're younger than me, so..
VAN SUSTEREN: Not much.
COSSACK: Ron, the notion that perhaps you would drop one against one of the remaining defendants to get that person to testify, I think it -- that would be an unusual thing to do. Wouldn't you think, if that was going to happen, that the prosecutor when he was handing out the passes that he gave to Ray Lewis would have probably -- he would have probably called and said...
VAN SUSTEREN: He hadn't heard from Lewis yet, though.
COSSACK: Well, but even after he heard from Lewis. And he knows that Lewis doesn't do that much for him. I mean, he helps him and hurts him.
VAN SUSTEREN: He's got two dead bodies, Roger. He's got two dead bodies, he'd better get a conviction for somebody. And if it looks like Sweeting is a pretty good self-defense, and if it looks like Oakley and Sweeting are going to walk unless he gets one more nail in Oakley's coffin.
COSSACK: Anybody think that Ray Lewis is going to convict anybody with this testimony that he's given so far -- that we're on cross-examination right now?
SULLIVAN: I do not see it. He's not a particularly good government witness. And, you know, both of the lawyers can stand up and say convincingly in closing that, you know, the government has no case. Look at their star witness; doesn't prove anything.
VAN SUSTEREN: But the thing is, Ron, is that you can't -- and we all agree you can't just look at the testimony of one witness, Lewis. I mean, sometimes that can, you know, be the straw that breaks the camel's back. However, you look at all the evidence...
COSSACK: Greta, they haven't had any other evidence.
VAN SUSTEREN: Well, they got two dead bodies... COSSACK: No, but that's what they got.
VAN SUSTEREN: ... and they've got blood, and they've got a knife, and they've got blood in a limousine, and they've got some deceit, they've got some flight. I mean, it is not the kind of case where I'd feel completely confident if I was the defense attorney.
SULLIVAN: I'll tell you, here's what I'd want to do. I'd want to encourage the jury to come back with a quick verdict. This switch...
VAN SUSTEREN: Me too: not guilty for our defense.
SULLIVAN: Right. this switch with Lewis is an event that's going to be prominent in the jury's mind, and you want to keep that fresh in their mind to the extent the testimony stays as it's been so far; keep that event fresh in their mind and point out the fact that, look...
COSSACK: Let me go to Joe Whitley...
VAN SUSTEREN: Bernie...
COSSACK: Let me go to Joe Whitley.
Joe, you know Atlanta jurors and you've been following this case. I'm going to put you on the hot spot. I'm just going to ask you to make a prediction for me. You think they're going to get a conviction in this case?
WHITLEY: Well, I guess the jury's still out on that, but I think, right now, no. I think more has got to come in. A lot depends on how effective Paul Howard is in his closing arguments.
COSSACK: I mean, this is the last witness.
VAN SUSTEREN: And, wait a second, wait a second.
COSSACK: Ray Lewis is the last witness.
VAN SUSTEREN: You know, you cannot predict what a jury is going to do unless you're in there. In the courtroom, you have a better shot at it, but even then you can't.
Bernie, would you, though, however, as a defense attorney...
COSSACK: You can predict. You may not be right, but you can predict.
VAN SUSTEREN: Well, OK. You can predict, but you're not going to be right. I mean, it's a lot different being there listening to it, and a lot different when you actually consult with the jurors, your fellow jurors in deliberations.
But, Bernie, if you're the defense attorney, would you be sitting there with a, you know, smiling thinking that this is a locked case for the defense, or do you feel nervous?
GRIMM: I've never, even in a locked case, felt like I had a locked cases, because I've had locked cases where jurors have come back and said, guilty. I've had impossible cases where my clients have committed first-degree murder on videotape, and have them come back and say, not guilty. So you never, you never know what goes on back in that jury room.
VAN SUSTEREN: And you have to look at the whole picture. That's the one thing. You can't just sort of isolate testimony and think...
COSSACK: Well, but this -- but I'm telling you, all these witness have come in and not said what the prosecuting attorney said they were going to say. I mean, this is the most bizarre case I've ever seen.
VAN SUSTEREN: I agree, but I'm always...
SULLIVAN: Usually prosecutors do this, but a defense attorney could actually get up and read the opening of the prosecutor and say, they didn't show this, they didn't show that, didn't show this. Why didn't they show it? Because he had no case.
COSSACK: And watch, he'll turn out to be right.
VAN SUSTEREN: And the truth is...
SULLIVAN: That's right, that's right.
VAN SUSTEREN: ... that you can lose a weak prosecution case from the defense perspective.
But that's all the time we have for today. Thanks to our guests and thank you very much for watching.
This week, I'll be interviewing an inmate on Texas' death row.
COSSACK: And on Thursday, we'll bring you the case of Gary Graham, convicted of a 1981 death with just one witness. Prosecutors say he's had ample chances to make his case in court. Graham is scheduled to be executed in just two weeks. Join us then for another edition of BURDEN OF PROOF.
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