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Burden of Proof

Robert Downey, Jr. Arraigned in California Courtroom

Aired December 27, 2000 - 12:30 p.m. ET




UNIDENTIFIED FEMALE: ... residential recovery treatment program, we'll look at it.


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

ROGER COSSACK, CO-HOST: Hello and welcome to BURDEN OF PROOF. Greta is off this week.

Robert Downey Jr. was arraigned in a California courtroom a short time ago. He entered a plea of not guilty. The 35-year-old actor faces two felony counts of drug possession and one misdemeanor charge for being under the influence of a controlled substance. Downey was released from prison just four months ago for violating parole on a previous drug conviction. He was arrested over Thanksgiving weekend at a Palm Springs resort hotel.


JUDGE B.J. BJORK, INDIO SUPERIOR COURT: And Robert John Downey Jr., is that your correct name?

ROBERT DOWNEY JR., ACTOR: Yes, your honor.

BJORK: Are you known by any other name?

DOWNEY: No, your honor.



BJORK: And that plea is?

BROOKMAN: That plea is not guilty, your honor.

(END VIDEO CLIP) COSSACK: And joining us today from Los Angeles is criminal defense attorney Mark Geragos. Also in Los Angeles, former state prosecutor Andrea Sheridan Ordin. And joining us from outside the courthouse in Indio, California is CNN correspondent Paul Vercammen. And later, we'll also be joined by John Schwartzlos of the Betty Ford Clinic.

But let's first go to Paul Vercammen.

Paul, he was arraigned today, Robert Downey Jr. What happened in court?

PAUL VERCAMMEN, CNN CORRESPONDENT: Well, as you pointed out earlier, he pled not guilty. Now, at first, his lawyers had sought a continuance on this. They said they needed more discovery. They wanted to have time to look at what they said was some audiotapes and some videotapes, and some lab work. Of course, the continuance wasn't granted.

So then the next step. They've set this what's called an expedited drug program hearing or meeting for Jan. 29 at 1:30. And in talking to Deputy District Attorney Trisha Kelly (ph) off camera after the case, she says something like 50 to 75 percent of her cases -- and she is the prosecutor that deals with a lot of these cases in this part of Riverside County -- she says 50 to 75 percent of them, re some sort of deal or whatever you want to call it -- bargain -- is worked out right then and there.

So it's interesting. It seems to be that they could be leaning toward some sort of deal down the road for Robert Downey Jr. We'll see what happens at that EDP hearing.

Also, his attorney said that Robert Downey Jr. was pretty upbeat and positive about what happened here today. So it's just sort of a wait-and-see in terms of sentencing. That's a very, very, very wide- ranging proposition. If he were convicted again, speaking to the deputy district attorney, she said worst-case scenario for him would be 4.8 years in prison, that is. But also there's a strong possibility that he could get some sort of probation with a court ordered drug treatment program, something to that effect.

So that's what's going on here right now, Roger.

COSSACK: All right, thanks to Paul Vercammen in Riverside.

Let's now go to our guest Mark Geragos.

Mark, let me put you in charge of Robert Downey's defense a little bit. Let's talk a little bit about what went on in the courtroom today. The first thing we heard him say, we heard his lawyer talk about they wanted to continue the arraignment. And he said that he filed a motion under a particular section of the California penal code. He said he had good cause. What was that all about?

MARK GERAGOS, CRIMINAL DEFENSE ATTORNEY: He filed what's called a 1050 motion to continue the arraignment. Presumably, he wanted to demur to it or explore further discovery. And in this case, he probably had a pretty good point, because what you have here is a situation where post -- last month we passed Proposition 36 here in California, which gives -- which has changed dramatically the treatment of drug offenders in the state of California. So probably wanted to examine what the evidence was, see whether or not, based upon the record that he has, whether or not he's susceptible to a Proposition 36 disposition, which is something.

COSSACK: Mark, let me interrupt you for a second. Isn't proposition 36 aimed only at first-time offenders?

GERAGOS: No, actually Proposition 36 covers first-, second-time offenders. And in addition to that, there's already in place in that county a drug court which he also may be eligible for. It's not quite as strict in that county as it is in L.A. County as to who can get into the drug court.

COSSACK: Well, what's a drug...

GERAGOS: So that may be another possibility.

COSSACK: All right, Mark, help us out. What's a drug court? And why is that different from regular court?

GERAGOS: The drug court will generally -- the emphasis is on treatment as opposed to punishment, if you will. And so if you can get into the drug court, and if you get into one of these rigorous programs that the drug court administers, they take you out of the criminal or the punishment track and put you into a treatment track. You've got, also, dovetailing into that, Roger, the Proposition 36 and that kind of an articulation by the people that they don't want to keep punishing these people who really, basically, are just suffering from a disease.

COSSACK: All right, let's talk about, then, the notion of the expedited drug program that we heard about. And that was a date that was set for Jan. 29, and the judge said, we want everybody back in court on that date to discuss perhaps ending this case. What does that mean? What is that all about.

GERAGOS: Well, basically, what they do is they consider him or his eligibility. Somebody will take a look at his record, the probation office can run through it, see whether or not he is determined to be eligible for it. Then they'll give a report, they'll write up a report, it will go to the judge. He'll determine whether or not this particular case is suitable, and then, beyond the suitability, whether or not he's eligible. And if he's both suitable and eligible, it's up to the judge to decide whether or not he wants to put him into the drug program and allow him to be kind of diverted, if you will, even though that's not the proper word, out of the criminal system.

COSSACK: All right, now, is that a situation where suppose the prosecutor could come in and say, you know, we don't mind him going to a drug rehab program, but we think that we have to make an example of him. And so we want him to do six months in jail and then go to the drug program. Is that the kind of thing that works?

GERAGOS: They can fashion that. They can do a -- the situation we have here in L.A. is if you go into the drug court program, one of the preconditions is that you go into custody for approximately 90 days. In fact, Robert Downey Jr was in that program here in L.A. and then got kicked out prior to him going back to Judge Myron (ph), getting sentenced to prison. But that is one of the components. They put you into a jail situation where you're locked down 24/7, 24-hours a day, seven days a week, and then you're given treatment, you're put in modules and they give you all kinds of therapy and the kinds of rehabilitative and treatment programs that addicts should have.

COSSACK: All right, now, we just have a few seconds left. I want to -- we also heard the defense make a motion under I believe it was 977 in the penal code. He said, you know, we don't think that our client has to come to court with us when we come to court. Now, I know that in a felony, you usually -- your client has to come to court. What's this 977 all about?

GERAGOS: 977 has two subcomponents: subsection A and subsection B. For a misdemeanor, as you know, Roger, you can go any time as a defense lawyer and appear 977-A, meaning, I'm appearing for my client in a misdemeanor setting. For a felony, in order to be able to do the same thing where you -- the lawyer can appear and the client doesn't have to appear, the judge has to agree to it.

In this case, that's what they were asking the judge to do. They were saying, Judge, under 977-B we're asking that you allow us to appear and that he doesn't have to appear here. But if they were to do a preliminary hearing, his appearance is necessary.

COSSACK: All right, let's take a break. Up next, how does an attorney defend a client with a reoccurring drug problem? And is this a normal drug case for the prosecution? Stay with us.


Michael McDermott, suspected of killing seven co-workers at a computer consulting firm near Boston, was arraigned on seven counts of murder Wednesday morning. McDermott was ordered to be held without bail.




BROOKMAN: I don't think the media necessarily helps a person in this situation, whether it is a person of some notoriety to just an ordinary person, the glare of publicity is never a comfortable situation to deal with.

TRICIA KELLY, DEPUTY D.A.: I don't think you can take just one individual and determine whether or not a war on drugs is successful or not. I think that people are being held responsible for their actions, and as the district attorney in this county, it is our job to make sure that we do hold people responsible, in this case, in charging him and bringing him to court.


COSSACK: This morning, in Indio, California, actor Robert Downey, Jr. pleaded not guilty to two felony counts and one misdemeanor, stemming from a drug arrest last month in a Palm Springs Resort Hotel. This isn't the first time Downey's had trouble with the law. He spent a year in prison for violating parole on earlier drug charges, and was just released this fall.

Well, Andrea, let's talk a little bit about what the prosecution faces in a case like this. Here is young man, apparently very, very talented, with a terrible, serious problem who apparently has a very difficult time, and can't stay away from drugs. As a prosecutor, what do you do, and what do you take into consideration when going ahead with this case?

ANDREA ORDIN, FMR. STATE PROSECUTOR: Well, in California, as we talked about, we not only have had a fairly successful, although small, experience with drug courts, we now have a proposition that gives the guidelines to the prosecutors and to the courts that we are going to try to deal with addiction in a different way than we have before.

We have always had the ability to have some diversion, we've had some drug courts, but now there a willingness in California to say: We have got to try something different. And so I think, as prosecutors, people go into prosecution offices for all kinds of different reasons, sometimes to get trial experience, for a sense of service, a sense of protecting the community.

I don't know too many prosecutors who get a great deal of joy about cycling and recycling ill people through the system, and when they are not getting any better. So, as a prosecutor, you first look to what the legislature's told you what the rules are, and then, after that, if you have that discretion, you exercise that discretion, hopefully, fairly, evenly, and despite the notoriety of the person who is in front of you.

COSSACK: Andrea, let me be devil's advocate for just a moment on what you have just said. Look, as a prosecutor, you have to protect the public, whether it is more difficult to have someone who is perhaps sympathetic, like Downey, who seems to be unable to control himself, or someone who is just perhaps more violent than Downey would be. But nevertheless, when you see someone who is as out of control as he, apparently, is, you know, there's always that issue that perhaps some time when he's using drugs he might start driving a car, or he might hurt someone, or he might have a gun, which I think one time he was arrested with a gun, although it was unloaded, as I recall.

As a prosecutor, aren't you concerned about those kinds of things happening? And how many times do you give this guy the opportunity to help himself, recognizing the fact that perhaps he just has a problem that he can't control.

ORDIN: Well, take it away from Mr. Downey, whatever the reality is for Mr. Downey or isn't, we know that more than one-third of our offenses, our arrests, are for drug offenses. And during that period of time at the arrest, there may have been no violence, there may have been no guns, and they may not have been in a car, but, as you said, we know that's the problem.

What we want to do is to stop that activity. The question is: How do you do it? Do you put people in prison? Do you try serious drug rehabilitation? Or do you do a mix and match?

And I think most prosecutors believe you have to do a mix and match. You have to have the stick of prison time or straight jail time for many people to hit bottom, as the people who are trained in this field say. So, as a prosecutor, you are trying to do the right thing, you are trying to have a system that is uniform and fair, and yet takes into account to some extent the individual. And after all, the prosecutor can also say, as this prosecutor said, as much of the discretion here is with the judge.

COSSACK: All right. I want to get into that a little bit with Mark Geragos.

All right, Mark, you have to defend Robert Downey, Jr. And you know, unlucky you, you are not going to find a nice prosecutor like Andrea, you are going to run into me. And I am going to say, you know, judge, this guy, we have tried to give him a break time and time and time again, and for whatever the reasons, and everyone feels sorry for him, he just doesn't seem to be able to get the message. You have the discretion, judge, the people are at risk here because he could conceivably do something someday that isn't so benign, and that is just be holed up in a hotel room, he could be out driving a car. Judge, we need to do something more than put him in treatment. What do you say?

GERAGOS: Well, first of all, if I was defending this, I might take a step back from that. Those are kinds of arguments for putting him into the treatment program. I think what you do in this case is, based upon what I've seen so far, there's a legitimate argument that this is a bad arrest. You've got a situation where somebody, anonymously, phone in information. Half of that information we know, or at least we've been reported, is wrong, that there was no gun present.

If that's the case, there's a doctrine here in California that could allow you to defend against this arrest as an illegal arrest, that the anonymous information that came in was not reliable, at the point, and that any subsequent search would have to be suppressed. If that's the case...

COSSACK: Mark, let's suppose you say I want to test this under the Fourth Amendment, as you just articulated. That means that you don't get involved in this expedited drug program, let's suppose that you waive that, you go on, you make your arguments and you lose, are you putting your client at risk? GERAGOS: Well, part of what you do, is if I meet resistance, if I get a Roger Cossack, who is going to be a real hard case about it, I decide that I am going to file some paperwork or file some motions here, and do a little bit of motion work to get that prosecutor to say: Maybe I am not going to come off so hard here, maybe I don't have such a great case, and I am not going to be able to seize the moral high ground here. That's part of the reason you do that, and part of the reason you examine, or make these kinds of legal arguments, in order to get the prosecutor to come off such a hard stance.

COSSACK: All right, let's take a break. Up next, how courts handle repeat drug offenders. And is addiction a defense? Don't go away.


Q: Eric Franklin Rosser has been placed on the FBI's 10 Most Wanted list. Rosser, a former keyboard player for rock singer John Cougar Mellencamp, is wanted on what charges?

A: Charges of child pornography.



COSSACK: Robert Downey, Jr. was arraigned on drug charges this morning in Indio, California. This isn't the first time Downey has been in trouble with the law and drugs. The actor has been in and out of rehab, and in and out of prison.

And now we are going to talk to Betty Ford president John Schwarzlose, who is president of the Betty Ford Clinic, of course.

Mr. Schwarzlose, John, let me ask you this: Is there any help for someone like Robert Downey, Jr.?

JOHN SCHWARZLOSE, BETTY FORD CLINIC: Yes, there is, Roger. And what needs to happen here is, first, there needs to be an evaluation to determine if the person truly meets the clinical criteria for addiction, or are they just a chronic abuser of drugs. Once you establish that, then treatment can work very well. But understand that there's treatment and there's treatment.

What we recommend is very intense treatment. And then, if that don't work, the person goes to treatment for six to 12 months. But -- and, you know, you always wonder if people have really had an intensive first class treatment experience.

COSSACK: John, we know that he's been in several treatment programs before and has not obviously been successful. He has even been in prison for almost a year, and that hasn't been successful. So why would we believe, and we all want to believe that there's something that can help him, buy why should we believe that there is a program that we can help him? We know how wonderful Betty Ford's reputation -- your clinic is -- but why is it any better than anybody else's?

SCHWARZLOSE: Well, it has to do with the competency of the staff. You know, I will give you an example. A lot of programs in Southern California would allow an actor, would allow other people, for example, to work during the day, and then have some treatment at night. At a place like Betty Ford Center, Roger, 24 hours a day you are involved in treatment. You are taken away from your normal world and put into nothing but treatment. So it is a different kind of experience.

But, again, someone who has gone through treatment before, we might be talking about a long-term kind of treatment experience, and that works for a lot of people.

COSSACK: Now you mentioned earlier, you said there was difference, you had to find out whether or not he was an addict or a chronic abuser. What is the difference?

SCHWARZLOSE: Well, good drug courts around the country and good treatment centers, it is the first they do is establish: Is this person meet the clinical criteria for addiction? Where, for example, we know with addiction that the actual chemistry of our brain has changed, it is changed forever. But there are many people who just abuse drugs, and they are chronic abusers. And so we establish that medically: Do they meet the criteria for addiction? I don't know if that's happened in this case or not.

COSSACK: How do you treat someone who would come into your clinic?

SCHWARZLOSE: Well, again, it is a very intensive experience, where they are cut off from the outside world. All they are going to do for a period of time is focus on themselves, on this chronic illness that they have, and nothing else. They are not going to work. They are not going to be on the phone, they are going to be doing nothing but working on their addiction. And it is a real intense experience.

COSSACK: John, when you say, work on their addiction, what does that mean? How do you work on your addiction?

SCHWARZLOSE: Well, you understand what it means to have a chronic illness, just like the diabetic has to understand that this illness is never going to go way. It is something I have to work on every day. And then, once I learn to do that, and I develop a daily kind of regiment program, then I can go on with my life. But I have to get to the point to accept that I have this chronic illness, and it's not going anywhere.

COSSACK: How do you do that? Are there classes that these people take? encounter groups? what goes on?

SCHWARZLOSE: Well, there is therapy groups every day. There is didactic sessions, where we talk about different ways of approaching life. There's family therapy. We get loved ones involved. It is a very intensive kind of therapeutic experience. And again, for some people, who have been through treatment before, it can be a long-term kind of experience to try to get them to change the way they are living their life.

COSSACK: Is the bottom line, does Robert Downey, Jr., or any person that has this drug problem, do they have to want -- want to help themselves before you can help them?

SCHWARZLOSE: Well, yes, but, what happens in most cases, Roger, is it is the people around the person that kind of forces them into that situation, it is the employer, the spouse, the loved ones who force the person to accept that there is no choice anymore. And that is when treatment works is when they know what the consequences are if they keep using drugs, and they are faced with those consequences, and they understand that those consequences aren't going to go away.

COSSACK: All right, John Schwarzlose, thank you very much for being with us.

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

All week I'll be hosting "TALKBACK LIVE." Today, I want your input in the case of actor Robert Downey, Jr. How should the courts deal with the Hollywood star? That's at 3:00 p.m. Eastern time.

And tomorrow, on BURDEN OF PROOF, the case of seven employees gunned down at a Boston-area Internet consulting firm. A co-worker faces seven counts of murder.

Plus, Timothy McVeigh, convicted in the Oklahoma City bombing, asks the government to end his life. Join us tomorrow for these stories and more on another edition of BURDEN OF PROOF. We'll see you then.



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