THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ROGER COSSACK, HOST: Sensational accusations about pro basketball players have dribbled out of Atlanta's Gold Club trial from the beginning. Most of the sports stars have remained silent, but now one is fighting back.
Today on BURDEN OF PROOF: Toronto Raptor Antonio Davis speaks out against what he says are false claims of infidelity with Gold Club dancers.
ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.
COSSACK: Hello, and welcome to BURDEN OF PROOF. NBA star Antonio Davis is fighting to clear his name from allegations made on the witness stand in Atlanta's Gold Club racketeering trial. Accusations of having sex with a club dancer come from the testimony of a former executive of the strip club, Thomas "Ziggy" Sicignano.
Antonio Davis, who is married with children, said late last week that he was quote, "devastated by the accusations" and claims they are false. Davis also plans to file a lawsuit against Sicignano over the testimony.
But will Georgia allow such a lawsuit? Joining us today from Atlanta is constitutional law professor Neil Kinkopf. Also in Atlanta, criminal defense attorney Jerry Froelich and from Coral Gables, Florida, former Justice Department Strike Force attorney Leonard Sands. And here in Washington, Caylin DeBlasio (ph), Clint Wilson and Gabriel Meyer; in the back, Courtney Edmonds (ph), Julie Gurley (ph) and Bill Espy (ph). Joining us also from Toronto is Eric Smith of All Sports Radio.
First, I want to go to you, Jerry, who's been in the courtroom during this entire trial. You have a client who has been -- has been severed from this trial, but allegedly will go to trial later on.
Jerry, tell me what's been going on inside there, and tell me about, particularly the testimony of Sicignano in the sense that he has been naming names about basketball players, athletes who allegedly were involved in sexual escapades with these dancers. What's that all about?
JERRY FROELICH, CRIMINAL DEFENSE ATTORNEY: He's been naming a lot of names. One of the key allegations in the case is that there was prostitution going on, and that Kaplan was allegedly paying the girls to have sex with athletes to increase the club's attendance.
He started out like Joe Pesci. He changed his dress, he had his hair slicked back. He talked like Pesci, telling jokes, naming a lot of names. And then he actually wound up like Tarkanian, the coach. He had a wet towel he was chewing on, and I think he did not wear well with this jury. I think he got hurt.
A lot of the athletes have come out, like Mr. Davis and said, no, it didn't happen. Starks is contesting now part or it...
COSSACK: That's John Starks, the former New York Knick.
FROELICH: That's correct, and actually showed Ziggy some of Stark's testimony on the stand, and where he says the it wasn't Kaplan. Stark says that it was Ziggy. And in another occasion, Ziggy came to New York and called him and said, I've got girls up from the Gold Club. Why don't you come on over to the hotel, and Starks said, well, I've changed my life. I'm not a Christian. I won't get involved.
So, Ziggy has said that from the stand, and also, he has stepped out in front of the courthouse and has been saying these things to the press, saying Starks is lying, Davis is lying, and he stands by his testimony that he saw Davis have sex with some of the dancers and that Starks had sex, and there was never any meeting up in New York.
COSSACK: So, the battle lines are drawn now between Ziggy, who says I'm not lying, I'm a government witness, and I'm telling the truth, and some of these athletes who are saying this guy is nothing but a liar. The lines are that clear?
FROELICH: Well, there's no doubt those lines are clear, and the other line that's been drawn is that it's Ziggy who was providing the girls. You know, the defense is clearly that Ziggy, he had this basketball club in New York, the Brooklyn USA, and he was -- all he wanted to do was be near basketball players, and he wanted to be a big man with the pro athletes.
And so, that's the defense. The athletes now are saying that -- some say it didn't occur, others saying it was Ziggy who introduced us, who brought the girls and prompted us to be with the girls.
COSSACK: And not Kaplan.
FROELICH: And not Kaplan.
COSSACK: All right, let me change gears for a second, and go to Neil Kinkopf. Neil there is a report that Antonio Davis believes that -- has said flat out, he said this isn't true, that Ziggy has slandered me from the witness stand, that he has said things about me that are absolute lies, and that I would like to sue him. What are the chances of Antonio Davis being able to sue Ziggy for Ziggy's testimony inside a courtroom, for what he said inside the courtroom?
NEIL KINKOPF, CONSTITUTIONAL LAW PROFESSOR: His chances of being able to successfully sue for that are zero. The statements made from the witness stand are absolutely privileged, and cannot form the basis of a defamation lawsuit.
COSSACK: All right, so it's protected. Now, let me just change the facts a little bit. Now, Ziggy goes outside the courtroom, has an interview with a TV reporter of which during that TV report he repeats again and says, I saw Davis do the things that I said earlier. I saw him involved in these relationships with these women. Is he now no longer protected as he would have been if he was 15 feet inside that courtroom?
KINKOPF: That's right. The privilege no longer applies. It only applies for statements made from the witness stand. However, because Antonio Davis is a public figure, and his comments relate to a matter of public interest that is significant federal crime that is the subject of prosecution, in order to prevail in that lawsuit, Antonio Davis would have to come forward with evidence not only that the statements are false, but they're uttered with actual malice.
That is, that Ziggy spoke with knowledge that his statements were faults or with reckless disregard for the falsity. It's a very, very high standard, it's intended to be a high standard in order to provide a sort of safe harbor around public debate about publish issues.
COSSACK: All right. So, in other words, Antonio Davis wants to bring this lawsuit, let's go through the two places: one, if he wants to bring it for what Ziggy said inside the courtroom, you feel that that's and impossibility. Georgia law protects him that, and that would be the end of the case.
KINKOPF: It's not just Georgia law. It's the entire Anglo- American tradition. That law has been in place everywhere in the Anglo-American tradition for over 400 years.
COSSACK: And that's to encourage people to feel free and be able to discuss things in the courtroom without fear of reprisal. But what you're indicating is that if he goes outside that courtroom, now Davis has the issue of not only proving falsity, but that Ziggy knew he was lying, right?
KINKOPF: That's right. He has to come forward with substantial evidence in order to maintain the lawsuit to demonstrate actual malice.
COSSACK: All right, let me go on over and talk now to Leonard Sands. Leonard, you have a disagreement on this issue?
LEONARD SANDS, FMR. FEDERAL PROSECUTOR: No, I agree with Neal. The issue is was the statement made with malice. Probably, there might be claim that the case is actionable someplace other than Georgia, because he made statement to a reporter, and it's been repeated in more than that jurisdiction.
But there is a substantial question of proof, whether or not you can show malice, if it's just a one-on-one swearing contest it would be a difficult case to prove. However, you have the inference that the statement was made to feather this guy's nest with a plea bargain. COSSACK: Let me jump in here a second. Why is it so difficult to prove malice in this case? Look, here's what Ziggy is saying, if I understand it. He is saying, look, I saw Antonio Davis, I'm identifying him. Two, I saw him do something. Now, either he did it or he didn't do it. He's saying I saw it. It's not what somebody saw me, it's not what I read, it's not what I understood, I saw him do it.
Now, if he didn't do it, if Davis can prove he didn't do it, I think malice easily falls from that.
SANDS: Well, what'll happen by the time a case like that goes through the deposition stage or trial, Ziggy will say, well, I wasn't sure, he looked like somebody else, it was dark, I forgot. So, you'll see, he'll try to wiggle out of it. Just say it's a one-on-one swearing contest, you'll need something. You have to show, because it's a public figure, that there is something more.
COSSACK: Let me take a break. New York Knicks player Patrick Ewing, Allan Houston and Larry Johnson are just some of the professional athletes Ziggy Sicignano named as patrons of the Atlanta strip club. We'll have some more on the testimony of the former Gold Club executive when we come back. Stay with us.
(BEGIN LEGAL BRIEF)
A federal judge on Tuesday ruled in favor of the inclusion of contraceptives for women in Bartell Drug Company's employee health insurance plans. The lawsuit, filed by Bartell Drug Company employee Jennifer Erickson, was the first federal challenge of its kind.
(END LEGAL BRIEF)
COSSACK: Yesterday, former Gold Club executive Thomas "Ziggy" Sicignano finished up seven days of testimony in the federal racketeering case surrounding the famous strip club.
During his testimony, Sicignano named several professional athletes who he claims he had seen in the Gold Club, but denied being the one fully responsible for allegedly providing prostitutes to these stars.
All right, Jerry, let's go back and put some things in context here. The government's case against the Gold Club is broken down into several categories, one of which is providing prostitution, that Kaplan -- that this place was a place where prostitution not only went on, but was encouraged. Second of all, it has to do with using -- of illegal use of credit cards.
Thirdly, the government is alleging that this is really a story about organized crime and should be taken very seriously about organized crime. But their main witness so far, as I understand it, has been this Ziggy Sicignano, who was the inside guy. How well did he fare? FROELICH: In the beginning, I thought he was excellent. I don't think he fared well in the long run. I thought they caught him in some lies. I thought his stories just didn't ring true. And even the judge got mad at him. He would not answer questions. It took him forever to drag little admissions out of him.
He was very frustrating for the lawyers, for the judge, and I believe for the jury. The other thing is, he did not help them in the organized-crime atmosphere -- or the organized-crime allegations. One, they did play a tape, which he identified -- an undercover tape. And in that, Kaplan said that he worked hard. He developed the club himself: "There's all these allegations about me being with wise guys, mafia and everything. And that's just not true."
That's an undercover tape. The other thing Ziggy said was, the supposed connection, Michael DiLeonardo, to the organized crime, he said that was an old friend of Kaplan father and Kaplan and that he was always polite, that he never saw any money pass hands, and that he didn't know of anything that DiLeonardo ever did wrong. And so I think they took some hits in their theory. They brought in all these organized-crime people. But no one really tied in the Gold Club.
You've heard a lot about the club down in Boca -- Club Boca. Next, they're -- now they are going to Scores, the club in New York. And I think there is a real missing link when you come to the Gold Club. Now, we are not over yet, but Ziggy was supposedly the guy, and he turned out to be less than the guy.
COSSACK: All right, Leonard, I know you are in defense work now, but I'm going to take you back to your days as a former federal prosecutor -- and, obviously, knowing a lot about the strike force and how these cases get put together.
You know, to a layman, one would say: Well, gee whiz, this government witness didn't hit on everything he was supposed to. But, in fact, that's not so unusual when you bring in a witness like a Ziggy Sicignano that the government doesn't necessarily get all that they thought they were going to get, is it?
SANDS: No. And you never do try the case -- the whole case -- through one witness. What the government will have to argue -- and I'm sure what they will argue -- is that you don't have to like this fellow, but what he is saying is substantially the truth, and Kaplan chose him as his lieutenant; the government didn't choose him.
So that's how they will have to argue it. But from all accounts, he was not a likable guy. Even the judge had trouble with him. And it does hurt a witness when they tap dance all over the place and don't answer the questions that are put to them.
COSSACK: Leonard, oftentimes in these kinds of cases -- strike force cases -- the government is stuck with highly unlikable guys, situations in which the government has been forced to give a much sweeter deal -- well, in fact, in this case, a sweet deal to this guy because they need his testimony. And they know up front that, probably juries, aren't going to like this guy, but hopefully we can get the jury to believe him.
How do you cross that bridge? How do you get them to say, "You know, folks, you may not want to take this guy home for dinner, but the reason is, is because he's telling you things you don't want to hear because he was on the inside and knew." How do you get them to believe that?
SANDS: Well, that's exactly what you do. You admit right up front that this is not a likable person; this is not a person you would invite home for dinner; this is not somebody that you want to be social friends with; but he's telling the truth in the following regards. And you start listing the evidence that he has provided, and you show how some of it, at least, is corroborated by other witnesses, and how, independently, what he is saying is verifiable.
These are very hard cases, by definition, for both sides. And it's hard for a jury to accept somebody like this. But they do all the time. And the reason for that is because there's corroboration to some extent.
COSSACK: All right, Leonard, let me come right back and ask you another tough question: What about the witness who is on the witness stand; he says something; it's clearly challenged -- in this case by Antonio Davis -- who said that government witness is a flat-out liar.
Now out comes the government witness who decides to hold little press conferences on the courthouse steps and repeat it time and time again, clearly injecting himself in a personal manner into this trial. How does the government feel about that? If you were the prosecutor, would you want this guy out there holding press conferences?
SANDS: Absolutely not. It shows that the government can't control this guy. And it sounds like they have made their deal before his testimony is finished. That's why the government very often will not go along with what the bottom-line result will be for a witness, so that they have some control over the witness.
The jury is not supposed to know about these things, but somebody may decide that what happened out on the courthouse steps should be brought into the trial. And somebody may call Antonio Davis, who may be looking for a forum to rebut what this guy has said. So there are a lot of side issues that may be drawn into this case that make it even more interesting than the trial itself.
COSSACK: You know, if I was a defense counsel, I might even want to subpoena old Ziggy back and get him back on the witness stand and say: Didn't you just go outside and hold a press conference? Are you that personally involved in this case? What do you have to do to get your deal?
So it's not -- I'm sure, all the way around, the government lawyers are not happy about Ziggy and his press conferences.
SANDS: No, I agree with that. And I would hesitate, as defense counsel, to call back somebody like Ziggy. He's been on the witness stand for at least seven days. They've had their full of him. And he's never going to help the defense. So the defense will argue about what he could have said, what he didn't say, those sort of things.
But what you may want to do is bring in other evidence...
SANDS: ... and just make this into the Sicignano trial and attack the hell out of him.
COSSACK: OK, let's take a break.
The jury hears from the owner of the Gold Club, Steve Kaplan, for the very first time. What did jurors hear him say? We'll find out when we come back.
Q: On this day in 1967, what Supreme Court justice was appointed to the bench?
A: Justice Thurgood Marshall.
COSSACK: Last week, jurors finally got a chance to hear the voice of Gold Club owner Steve Kaplan. The prosecution team played secretly recorded FBI videotapes of Kaplan talking to owners of a New York nightclub in 1998.
Allegedly, Kaplan can be heard talking about when he bought the strip club in Atlanta and how he has turned it into a cash cow. But he also denied any rumors that he might be connected to mobsters.
Jerry, you mentioned this a little earlier. Talk to me a little bit about how these tapes were prepared. Kaplan obviously didn't know he was being taped. Who -- what went on? Was there an informant that was taping him?
FROELICH: Well, the room was wired. The whole room was wired. And there was a camera in there. And there was -- there were microphones. So it wasn't someone walking in with a camera or a body mike. The whole room was wired up. And it had been wired up for quite a while, and was part of another investigation. And Kaplan walked into it. And Kaplan -- as I've said and as you said -- denies being involved in the mob.
COSSACK: But who was he talking to, Jerry?
FROELICH: He's talking to about four or five people up in New York.
COSSACK: Does he know any of these people?
FROELICH: Oh, yes, he knew everybody.
COSSACK: And these people were -- were these people working for the government? Did they know they were being taped?
FROELICH: It wasn't really clear, because they played it through Ziggy. And I don't believe anybody knew that -- anybody in the room knew it was being taped. It appears to be a sting operation -- I mean, not a sting operation, but that the FBI had gotten in and wired the room.
COSSACK: OK, so we don't know whether or not -- what got these four or five gentlemen together and how they came at that time and how this conversation went on.
FROELICH: Right. But the problem was, it was taken kind of out of context. They were throwing a lot of things in through Ziggy. They threw that tape in. They threw a lot of surveillance tapes in where there was no sound outside the Gold Club, just showing Kaplan and Ziggy coming in and out of the club, a lot of the defendants coming in and out of the club, them standing out in the parking lot.
And Ziggy admitted that they knew there was an FBI -- at one point, what happened was the FBI cut down a tree in order to get the camera to have a better view. And they knew from then on.
FROELICH: And Ziggy said that he was the one who spotted it.
COSSACK: All right, Leonard, let me go to you now. This is sounding more and more out of "The Sopranos," in some ways.
In he walks into this sting; the whole room is wired; you get the fact that -- you get Kaplan admitting, "Yes, I bought this place, too. I turned it into a cash cow. But guess what? I'm not connected to the mafia."
Government tradeoff -- what do you get?
SANDS: Well, the government has to know about this tape. They would have turned it over as part of the discovery.
SANDS: What they are going to have to do is argue that he said that because he didn't want to admit to this type of conduct to the other people that were in the room, and that when he said that, he just wasn't telling the truth. But it has to be very helpful to the defense.
But the government is not surprised by it. And the government probably has some type of ready answer along the lines I just described.
COSSACK: Why play the tape -- in the government's case? Is this something that -- is it to take the sting out of the fact that the defense may play it? And so the government will say, "I am going to show it to the jury first"? I mean, why play it? SANDS: Probably to steal the defense's thunder -- if they played it. It was my understanding, from what Jerry said, I thought one of the defendants played it on cross-examination. But both sides have their reasons why they would want to get that out in the open so that they shouldn't be accused that they buried it.
COSSACK: Jerry, did I mistake? Was this played during cross or was this played during direct?
FROELICH: No, it was played during direct. The government's theory on this is: Bring out everything that hurts us right away.
They brought out all the crimes of all their witnesses. And that's what they've been doing. And there were some things. I think they also played it because Kaplan's language in the tape is absolutely horrible.
He uses every four-letter word in the book throughout it. And you get the feeling, you know -- it dirties him up in one way, in use of the language. And it's a black-and-white tape. And you feel like you are spying on something.
COSSACK: Jerry, I've got to cut you short because we are all out of time. But I think we will all agree that the one thing Kaplan is not on trial for is his use of four-letter words.
That's all the time we have for today. Thanks to our guests. Thank you for watching. Join us tomorrow for another edition of BURDEN OF PROOF. I'll see you then.
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