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Kobe Bryant Accuser in Court; Former Terrorism Official Talks to 9/11 Commission

Aired March 24, 2004 - 20:00   ET


FREDRICKA WHITFIELD, CNN ANCHOR: Good evening. I'm Fredricka Whitfield, in for Paula Zahn.
It is Wednesday, March 24, 2004.


WHITFIELD (voice-over): "In Focus" tonight, Kobe Bryant's accuser called in to court to answer intimate questions about her sex life. Will that have a chilling effect on victims of rape?

Also, the former top terrorism official who rattled the White House with his tell-all book submits to the 9/11 Commission. We'll look at how well his claims of administration incompetence hold up.

CHILDREN: One nation under God.

WHITFIELD: And fresh from the U.S. Supreme Court, the man who challenged "under God" in the Pledge of Allegiance, why does he think it's so un-American?


WHITFIELD: All that ahead tonight, but first, here are some of the headlines you need to know right now.

The king of Spain led world leaders today in a state funeral for the victims of the March 11 bombings in Madrid. U.S. Secretary of State Colin Powell represented the U.S. and met with Spain's incoming prime minister, who says he will pull Spanish troops out of Iraq unless the U.N. takes command there.

Also in Madrid, a Spanish judge has charged two more suspects in the bombings; 11 people now face charges in the series of train bombings that killed 190 people.

And the White House says President Bush, like most Americans, is concerned about rising gas prices. But a spokesman says the administration will not tap into the government's oil reserves to help ease the problem.

"In Focus" tonight, the 9/11 investigation.


RICHARD CLARKE, FORMER COUNTERTERRORISM ADVISER: To them who are here in the room, to those who are watching on television, your government failed you. Those entrusted with protecting you failed you. And I failed you.


WHITFIELD: A remarkable statement from former counterterrorism adviser Richard Clarke directed at families of 9/11 victims.

It happened as he began his testimony before the commission investigating the attacks.

National security correspondent David Ensor takes us through today's developments.


DAVID ENSOR, CNN NATIONAL SECURITY CORRESPONDENT: Fredricka, the 9/11 Commission's star witness reaffirmed and sharpened his charge that the Bush administration he once served failed to do enough to protect the nation against al Qaeda before 9/11. He said he pressed for more military and CIA actions against bin Laden and the others to no avail.

CLARKE: And I thought if the administration doesn't believe its national coordinator for counterterrorism when he says there's an urgent problem and if it's unprepared to act as though there's an urgent problem, then probably I should get another job.

ENSOR: For its part, the White House made public the transcript of a briefing Clarke gave while on the White House staff in which he praised Mr. Bush's efforts and the strategy the White House was working on to roll back al Qaeda. Clarke told the commission that he was just trying to accentuate the positive.

JOHN THOMPSON, 9/11 COMMISSION: Are you saying to be you were asked to make an untrue case to the press and the public, and that you went ahead and did it?

CLARKE: No, sir.

THOMPSON: What are you saying?

CLARKE: Not untrue. Not an untrue case. I was asked to highlight the positive aspects of what the administration had done.

ENSOR: Intelligence Director George Tenet faced questions on why there wasn't better intelligence on al Qaeda before 9/11. Where was Osama bin Laden?

GEORGE TENET, CIA DIRECTOR: Decapitating one person, even bin Laden in this context, I do not believe would have stopped this plot.

ENSOR: The commission members and its staff suggest there's plenty of blame to go around and plenty of lessons to learn -- Fredricka.


WHITFIELD: Joining us now from Washington, two members of the 9/11 Commission, former federal prosecutor Richard Ben-Veniste, who worked on the Watergate and Whitewater investigations, and former Senator Slade Gorton.

Good to see both of you gentlemen. Thanks for joining us.


WHITFIELD: Well, Commissioner Ben-Veniste, let me begin with you.

Today, we heard from Richard Clarke in an apology opening up the hearings and soon following after that Bob Kerrey saying, there are an awful lot of other people who ought to offer their policies. Is that an appropriate thing to say and, if so, whom should be making those apologies?

RICHARD BEN-VENISTE, 9/11 COMMISSION: It was a very moving movement and I think quite appropriate from Richard Clarke, who had worked really in a very, very dedicated way, countless hours with others from our government agencies trying to fight terrorism and trying to do the best they could. They failed. And he said so. And I think it was appropriate for him to have done that.

WHITFIELD: Clearly, Richard Clarke a big witness today at the centerpiece of this commission hearing today.

Senator Gorton, let's listen to what White House Chief of Staff Andrew Card told CNN's John King early this morning about Richard Clarke.


ANDREW CARD, WHITE HOUSE CHIEF OF STAFF: His recollections of the White House and the president's action in leadership don't ring up with the understanding that I have how the president has conducted himself. So I think his view is not the reality.


WHITFIELD: Does indeed Richard Clarke have a credibility problem?

SLADE GORTON, FORMER U.S. SENATOR: That's something about which we may very well make a judgment in the future. As this point, Richard Clarke's book has been out for about two days. I've got a copy of it. I haven't read it.

The various attacks on his credibility have been made in the last couple of days. I haven't absorbed those yet. It is very important for the 10 of us on this commission to come up with objective statements of the facts leading up to 9/11. It's up to the people of the United States to judge what those facts mean. WHITFIELD: All right, you're trying very hard to be balanced. And some would say one man who perhaps might be able to straddle both administrations in terms of being a spokesperson on what the government knew and how much they knew and what they did was CIA Director George Tenet. He had this very ominous warning to start off with this morning.


TENET: As this thing fades, my fear is, people are going to say, it's five years away. It's six -- it's not. It's coming. They're still going to try and do it. And we need to sort -- men and women here who have lost their families have know that we got to do a hell of a lot better.


WHITFIELD: Mr. Commissioner, do you believe that these were sobering words that we're hearing from Mr. Tenet?

GORTON: They're exactly the same words or phrases that we heard yesterday from Secretary of State Colin Powell, who said that, you know, whatever temporary successes we have, this can still happen.

He pointed out that he thought that Spanish law enforcement authorities felt they were on top of the situation there and worked very, very hard, interrupted perhaps one terrorist attempt, but then last week took place. And it is very important for the American people to understand that this is a longtime war and a longtime struggle and not to be too much comforted by the fact that we've prevented anything from happening for the last 2 1/2 years. It could happen again tomorrow.

Our task is to try to see to it that that probability or that possibility is lessened as much as is humanly possible.

WHITFIELD: So, Senator, how do you try to reassure the American public that that is, indeed, the objective of this commission?

GORTON: Well, I hope we don't need to reassure them. It is our goal, it's been our goal from the beginning, and it will be the quality of our report, its objectivity, the thoughtfulness of its recommendations that will either be accepted by the American people or not.

BEN-VENISTE: We have spent a great deal of time studying the interrelationships of our intelligence agencies, both foreign and domestic, and we will have recommendations.

WHITFIELD: Richard Ben-Veniste and former Senator Slade Gorton, thanks very much for joining us.

If there's one thing commission members and those who testified attention hearings agree on, it's that terrorists will continue to try and carry out strikes against U.S. targets. One of the most feared terrorist threat is a dirty bomb spewing radioactive material over a crowded city.

What exactly is a dirty bomb and how likely is that threat? We give that our "High Five" treatment tonight, five quick questions and five answers direct and to the point.

Michael Levi is a science and technology fellow in foreign policy studies at the Brookings Institution and has written extensively about radiological weapons.

All right, first question, what is a dirty bomb?

MICHAEL LEVI, BROOKINGS INSTITUTION: Simply put, a dirty bomb combines explosive materials with radioactive materials to spread those radioactive materials over an extended area. It is not a nuclear bomb.

WHITFIELD: Question No. 2, how real a threat is a dirty bomb attack in the U.S.?

LEVI: A dirty bomb attack is a real threat. But we also have to fine-grain that a bit.

It depends on how big a dirty bomb we're thinking about. It's not a one-size-fits-all sort of thing. I would give a pretty high probability that a small dirty bomb attack might occur, something that would contaminate a few city blocks. But if you're talking about an attack that would contaminate half of a city, let's say, of a large city, then it's a less likely attack, but it's not one that can be written off.

WHITFIELD: All right, well, let's specify that a little bit more. If a dirty bomb were to be detonated in a major city, how significant would the damage likely be?

LEVI: With a tiny amount of radioactive material, it would be strictly psychological. If you move up to the sort of material you'll find in some industrial applications, something that an individual might be able to steal in the United States, it would probably be able to contaminate maybe tens of city blocks.

If you got a large amount of radioactive material, probably would be obtained overseas and smuggled it in, and that could be detonated, it would be a massive dislocation to society.

WHITFIELD: All right, Michael, in your opinion, is al Qaeda in possession of dirty bomb material?

LEVI: I know as well as you do whether al Qaeda is in possession of dirty bomb material, but we've got to operate on the assumption that it might be, which means that we have to be focusing not only on how to stop them from acquiring a weapon, but also on how to mitigate the possible consequences. And there's fortunately a lot we can do if we're well prepared.

WHITFIELD: All right, let's hope you an offer some reassurances. Are we more prepared to handle a dirty bomb attack than we were a year ago?

LEVI: I think it's a common refrain these days to say we're a lot more prepared than we were and we've got a lot further to go still.

WHITFIELD: All right, Michael Levi of the Brookings Institution, from Washington, thanks very much this evening.

LEVI: My pleasure.

WHITFIELD: The teenager accusing Kobe Bryant of rape was in court today to answer questions about her sex life. Will that intimidate others who say they've been raped?

A former police officer goes free after fatally shooting a suspect. Was this a case of justice denied?

And the "under God" debate reaches the U.S. Supreme Court. We pledge to give you both sides.


UNIDENTIFIED MALE: One nation, under God, indivisible.



WHITFIELD: In a Colorado courtroom today, NBA star Kobe Bryant and the woman who accuses him of rape come face to face for the first time since the alleged attack. She answered questions about her sexual history at a special pretrial hearing.

CNN national correspondent Gary Tuchman is in Eagle, Colorado -- Gary.


The accuser did not want to be here, but she was compelled to testify inside this courthouse. Kobe Bryant, the Los Angeles Laker guard, arrived at 8:15 local time this morning with his attorney. And then about 25 minutes later, the 19-year-old accuser walked into the courtroom. The courtroom was closed to reporters and the public, but the door stayed open for a little while. We saw her walk to the stand, look at Bryant. Bryant looked back.

The reason she was here, Kobe Bryant's attorneys succeeded in getting the judge to listen to evidence about parts of her sexual past. Bryant's attorneys say that injuries she suffered could have come from another partner. Therefore, they wanted the judge to listen to evidence and decide, they hope, to allow it be used in a trial, a trial that hasn't yet been scheduled.

The woman's attorney and prosecutors say this hearing wasn't necessary at all. Either way, it did happen. It lasted 3 1/2 hours. She was then excused. Then, some of her friends and alleged sexual partners took the stand. The hearing was adjourned about an hour and 15 minutes ago and will continue tomorrow morning.

Kobe Bryant took off at the airport here, flying to Los Angeles tonight for a Laker game. After the game, he'll then get on a plane and come back here for part two of the hearing tomorrow.

Fredricka, back to you.

WHITFIELD: All right, Gary Tuchman from Eagle, Colorado, thank you.

Well, what effect could this development have on other women who want to press rape charges?

Gina Cotroneo is a rape survivor who brought her case to court. And she joins us from Dallas.

Good to see you, Gina.


WHITFIELD: You were raped in 1997. Briefly, what happened to you?

COTRONEO: I was at home sleeping. Someone broke into my apartment and sexually assaulted me. It turned out that it was a local deejay here in Dallas who was a serial rapist.

WHITFIELD: Was there ever a time when you hesitated to take this case to court?

COTRONEO: I did not, because this was the case of a stranger, but you know, obviously the case was about the evidence and the district attorney reassured me that my sexual history or my sexual past would not be brought into that trial, that it was purely about the evidence.

WHITFIELD: And now you have a case of an alleged victim who unwillingly had to answer questions about her sexual history. How awkward is this going to make it potentially, you believe, for other potential rape victims?

COTRONEO: I think it's going to be very awkward. In fact, I was in Marshall, Texas, today at Wiley College speaking to a group of young woman. I'm a representative for the Texas Association Against Sexual Assault that has a campaign called Speak Up, Speak Out featuring the stories of survivors in an effort to destigmatize and get rid of some of the shame surrounding this crime and help people to come forward and speak about this crime.

And the girls in this room all knew about this trial and all had great concerns. I mean, you know, this ruling affects a great many people.

WHITFIELD: In your case, if sexual history was indeed a matter, might you have backed off on pursuing your case in court? COTRONEO: I felt I had a duty to myself as well as other women to go through and testify against this man who raped me to try to prevent him from raping other people.

But it sure would have made what was a very difficult thing even that much more difficult. And I probably would have thought a lot harder about it and been intimidated by that.

WHITFIELD: And the flip side to that, of course, is a defendant does have a right to try and defend themselves in court, even if it means bringing out information that would be unsavory or unappealing for the person placing the charge against them.

COTRONEO: Yes, I do understand. You know, Kobe Bryant's defense team is obviously just trying to do the best job that they can for him. And that's part of their job.

But the average person doesn't understand the law as well as a lawyer does. And, you know, what they see is what's reported on the news and what this girl has to go through. And, you know, obviously this testimony will probably leak to the press. And, you know, that's what your average person sees. The 19-year-old girls that I spoke to today, that's the part that they see. And it's intimidating.

George W. Bush Gina Cotroneo, thanks very much for joining us.

COTRONEO: Thank you.

WHITFIELD: Well, let's debate whether a victim's sexual past should be fair game in rape cases.

Pamela Hayes is a defense attorney and former sex crimes prosecutor who believes past history can be useful in a rape trial. And from Denver, Anne Munch is a Colorado district attorney and director of the Ending Violence Against Women Project.

Good to see both of you ladies.

Good to be here.

WHITFIELD: Well, Pamela, let me begin with you. You say that past sexual history is relevant. In all cases or only in some cases?


What we have here is an exception to the Colorado rape shield. The theory of prosecution for the district attorney in Colorado is that Kobe Bryant caused certain injuries to the complaining witness' person. In order to prove that they did not or they could not, you have to go about looking at the whole series of conduct about how this could have occurred.

And if you don't bring up the prior sexual history, since it's so close in proximity to what she is accusing Kobe Bryant of doing, you won't be able to give him a fair and equal opportunity to confront the allegation of the district attorney. So you have to do it. Such is not the case in all cases, though.

WHITFIELD: Anne, it's your feeling that this alleged victim is being victimized again?

ANNE MUNCH, DIRECTOR, ENDING VIOLENCE AGAINST WOMEN PROJECT: Well, I'd like to talk a little bit about what victims go through in general instead of the specifics of the Kobe Bryant case.

And, you know, there's a right that a victim has to not be subjected to psychological or emotional abuse to pay that price in order for her cooperation in a criminal trial against someone who has sexually assaulted her. And I think the best way to look at this is to consider that if this -- if we had a robbery victim, someone that was robbed at gunpoint and perhaps a necklace or a watch was taken, would we consider going into that victim's sexual history to see, you know, whether or not they had different sexual partners? And of course we wouldn't.

I feel strongly that it's no more relevant.


WHITFIELD: But at the root of this is an alleged sexual encounter. So doesn't it seem as though it would be relevant in a case like this?

MUNCH: Well, at least according to our Supreme Court and to some of the case law that exists, when a defendant claims that a sexual encounter is actually consensual, as opposed to forced, then our Supreme Court says that it's not relevant, that any prior conduct that is consensual on the part of the victim isn't relevant to what happened between those people on that occasion.

WHITFIELD: Pamela, let me allow you to respond to that. When it's consensual, is that the condition?

HAYES: No, that is not what we're talking about here. My understanding of the rape shield law -- and it's different in every state -- is, when there is a particular portion of a person's personal history, personal sexual history, that will aid the court or aid the jury in making a determination in terms of what actually happened at this particular occasion, then there are exceptions.

Here, they are saying there was an injury to her person. If somebody else created that injury, they shouldn't be allowed to put that on without some type of confrontation by Kobe Bryant to show that it wasn't him. So, therefore, you have to go back to what happened right before or right after. And that's just the nature of cross- examination.

WHITFIELD: And so, allegedly, win a 72-hour period, she was involved or had sexual encounters with two other men.

Now, what about the case of bringing now 12 other men who are testifying, almost character witnesses, in this case to determine what her sexual history was and is? HAYES: Well, I had heard that.

WHITFIELD: Is that going too far?

HAYES: I don't know whether it is 12 men, Paula, but they have a judge there. A judge is a referee. He's the type of person who's going to determine what weight we give to this testimony. Is it too much? Is it not enough? And that's something that the judge will do.

So although 12 people might have been subpoenaed, they all don't have to be talking about a past sex relationship.

WHITFIELD: Anne, are you concerned that this is a setback for other rape victims or alleged rape victims?

MUNCH: You know, I have a big concern for victims of sexual assault when they see that the rape shield laws in any state might not protect them as they were perhaps written or intended or you know, what they look at and what they're concerned at.

When you talk to rape victims and you talk to people that work with rape victims, one of the highest concerns that rape victims have in coming forward is having their privacy, you know, their private lives, even their names disclosed. And so with underreporting such an enormous problem in sexual assault cases, I believe it's incumbent upon us to do whatever we can to encourage victims to come forward and stay forward.


WHITFIELD: Anne Munch and Pamela Hayes, thanks very much.

MUNCH: Thank you.

HAYES: Thank you.

WHITFIELD: She went to jail, served time, cleaned up her act, but why do they want to send her back? Because of a mistake she didn't make.


PAMELA MARTINEZ, FORMER PRISONER: I've tried. I've tried so hard to change my life around. And now they're going to reduce me back to poverty status.


WHITFIELD: And some folks just don't cotton to these T-shirts. Are they making an extra large deal out of nothing?

But first, if you're looking for cities with the most good- looking people, give these a look taken from an online survey.

(COMMERCIAL BREAK) WHITFIELD: A California woman who has turned her life around after paying for crimes may be headed back to jail. Why? It seems the state made a mistake about her sentence and now she's in danger of losing everything she's worked so hard to earn.

Here's CNN's Frank Buckley.


FRANK BUCKLEY, CNN NATIONAL CORRESPONDENT (voice-over): The Pamela Martinez who went to prison in 1996 for stealing a toolbox who had fallen into a life of petty crime to feed a drug addiction is not this Pamela Martinez.

MARTINEZ: I have made poor choices in life, but this isn't who I am today.

BUCKLEY: After prison, Pamela got a job at Home Depot. She was well-liked and respected. Her immediate boss described her in this letter as reliable, responsible and dependable. Two-and-a-half years after being released from this prison, Pamela Martinez was back on her feet.

But then the California Supreme Court issued a ruling that turned her new life upside down.

(on camera): The effect of the ruling, Pamela Martinez was released too early. Pamela had won an appeal while she was in prison. Her sentence was recalculated.

(voice-over): She was released from this prison in October of 2001. But a dispute over how Pamela's sentence was recalculated continued in the courts.

MARTINEZ: The long and the short of it is, the state attorney general's office finally won.

BUCKLEY: Which is why she is going back to prison to serve the remaining 65 days of her sentence.

MARTINEZ: You know, I've tried. I've tried so hard to change my life around. And now they're going to reduce me back to poverty status.

BUCKLEY: Friends and supporters are asking California's governor, Arnold Schwarzenegger, for clemency.

ANN PETERS, FRIEND OF PAMELA: They gave her, her freedom once. They should renege on it and take her back.

JACKIE GOLDBERG, CALIFORNIA ASSEMBLY MEMBER: I cannot think of a single thing in terms of society that is served by her going to jail for two months and five days.

BUCKLEY: A petition drive has garnered hundreds of signatures, some of them gathered at this 7/11. DAVID SHAW, STORE OWNER: She's turned her life around. She's got a good job. She's got a good home. Why take that away from somebody?

BUCKLEY: The attorney general's office says Pamela's case was pursued because the sentencing formula could have actually resulted in longer sentences for other inmates.

For Pamela, it's much simpler. The ruling means her hard work, her new life are on hold for now because Pamela Martinez is headed back to prison. Frank Buckley, CNN, Vista, California.


WHITFIELD: "Under God," controversial words for atheists, Hindus and many other Americans. Does that mean they can't pledge allegiance to America? We'll get to the heart of today's U.S. Supreme Court case.

White Americans and black Americans four decades after the height of the fight for equality, just how equal are they?

And tomorrow, the sons of Camelot. A look at the past and the future of the political dynasty, the Kennedys.


WHITFIELD: California atheist Michael Newdow has taken his battle against two words "under God" all the way to the U.S. Supreme Court and today he argued his case himself telling the justices that having school children say those words as part of the Pledge of Allegiance is religious indoctrination. It's a decades old battle over what millions of children say every day in school.


UNIDENTIFIED CHILDREN: I pledge allegiance to the flag of the United States of America.

UNIDENTIFIED CHILD: I pledge of the allegiance to the flag.

UNIDENTIFIED CHILD: I pledge allegiance to the flag of the United States of America.

UNIDENTIFIED CHILD: To the United States of America. Oh!

UNIDENTIFIED CHILD: To the flag of the United States of America. And -- I don't know it.

UNIDENTIFIED CHILD: And to the republic for which it stands, one nation, under God.

UNIDENTIFIED CHILD: And to the republic of which it stands, one nation under God in -- indivisible.

UNIDENTIFIED CHILD: One nation under God and indivisible. UNIDENTIFIED CHILD: Indivisible. With liberty and justice for all.


WHITFIELD: And now we turn to the man who brought this to the U.S. Supreme Court. We asked Michael Newdow to lay out his case for us.


MICHAEL NEWDOW, ATHEIST CHALLENGING PLEDGE OF ALLEGIANCE: The argument is that government is supposed to stay out of the religion business and in this case they said in 1954, they placed two purely religious words, "under God" in the middle of a pledge that had been working well for 62 years. It shouldn't have been done and it's time to get it out.

WHITFIELD: Do you feel you made the best case possible? Do you think you swayed any of the justices your way?

NEWDOW: You never know. I hope so. You think back and you say I could have answered that question a little better but hopefully I'm sure they did understand the issues and hopefully they see them the way I see them.

WHITFIELD: A recent poll found that nearly 90 percent of the country thinks the pledge should stay the way it is. What is so threatening in your view as to why "under God" should be taken out of the Pledge of Allegiance said for years in classrooms across this country?

NEWDOW: I think if you discuss this with these people and let them understand what this is about, about government staying out of the religious business, the framers were very wise to make sure we have an establishment clause in our constitution and that's why you don't see religious words in this country like you see throughout the world. It was a brilliant idea. We invented it. It's the only thing we invented in our constitution and it ought to be upheld.

WHITFIELD: Why is it not enough that in some classrooms if there are students to feel uncomfortable saying the Pledge of Allegiance, they can refrain from doing so.

NEWDOW: What happens if the Pledge said one nation under Mohammed, would everyone say that's fine, go to school (UNINTELLIGIBLE) one nation under Mohammed or one nation under David Koresh or one nation under Sun Myung Moon? This is one nation under a religious ideal that not every American agrees with.

WHITFIELD: Is it every reference to God that you have a problem with in any kind of public forum?

NEWDOW: Not at all. If you're talking about government -- if you're talking about just references, no. It's government endorsements as the Supreme Court has frequently spoken of endorsements. And when government endorses any idea, if they were endorsing that there was no God, that's just as wrong.

WHITFIELD: Quickly, you know, in France, the government there is not allowing in public schools students to wear crosses, Jewish yarmulkes or even Muslim head dresses. Should that be the standard for the U.S.?

NEWDOW: I don't think so. I mean, that's very different. That's individuals doing what they want to do in terms of religion. That's completely different and that's the distinction people need to keep in mind. If it's the government acting in terms of religion, it's forbidden. If it's people, individuals, groups, acting in terms of religion, it's absolutely protected.

WHITFIELD: Michael Newdow, thanks very much for joining us.


SANDRA BANNING, MOTHER OF GIRL IN PLEDGE OF ALLEGIANCE CASE: We've come to realize that this is just not a matter for our family. This is a national matter. It affects every household and every family and every school child in this country.


WHITFIELD: On the other side of this case is the mother of Michael Newdow's child. Sandra Banning is a born-again Christian who doesn't want her daughter remembered as the little girl who changed the Pledge of Allegiance. Joining us now from Washington, the attorney representing Sandra Banning, former independent counsel and solicitor general Kenneth Starr. Good to see you.

You were in court today, proceedings about an hour long but you didn't argue. Do you believe that hour was maximized on both sides? Was it a compelling argument?

KENNETH STARR, ATTORNEY IN PLEDGE OF ALLEGIANCE CASE: It was. I thought both sides did an excellent job of presenting their positions. It was very well argued. The court was very active. So I think the public was well served today.

WHITFIELD: What was your read of the justices?

STARR: I think the justices are very reluctant in any way to strike down the Pledge. The questions were very thoughtful. There were suggestions to the effect that this really did not seem to establish a religion, but it was more an acknowledgement of our history and our tradition, which is I think exactly the right answer. There are arguments on the other side. Michael Newdow did an excellent job of presenting those arguments, he feels those very keenly but nonetheless, I think the court is very reluctant to upset our cultural tradition that goes back not simply to the Declaration of Independence but to the Mayflower compact.

WHITFIELD: Let's get to the heart of the matter, "under God," being at the center of this Pledge of Allegiance. Why is it that that would not fall under separation of church and state in your view? STARR: Because we have, in a number of respects, the tradition of acknowledging the history of the founding of the country and the political philosophy, and it is a political philosophy that's embodied in the Declaration of Independence. Under the theory that this nation was established on, the relationship with the individual to the state is a very important one. But the state serves the individual because the individual has rights that come not from the state or from the government, but from, as Thomas Jefferson wrote, the creator.

WHITFIELD: Now, Judge, the Supreme Court has repeatedly barred any kind of prayer from any public school systems. Why should this be any differently?

STARR: Because the Pledge of Allegiance is not a prayer. Just as when Abraham Lincoln uttered the words "one nation under God" at Gettysburg, he did not suddenly transform the "Gettysburg Address" into the Gettysburg prayer. It is different from prayer. It is a patriotic exercise of pledging allegiance to the symbol, the flag, for the republic and for the nation for which the flag stands.

WHITFIELD: Your client, the child's mother, has done her job to try to recuse her daughter from her involvement. However, what is this nine-year-old saying about both of her parents being part of this and being outspoken about what could be a historical case.

STARR: Well, I think Sandra Banning, the mother, has just been very thoughtful and careful about trying to allow this 9-year-old girl to be a 9-year-old girl, to play soccer and to do all the things she was saying today to listen to Britney Spears and so forth.

So, she's aware of this, but I think we're letting this little girl be this little girl. But for her part, she has not only no objection to saying the pledge of allegiance, she has said that if it's struck down, I may say the words under god under my breath.

WHITFIELD: All right, former solicitor general, Kenneth Starr. Thanks very much for joining us.

STARR: My pleasure.

WHITFIELD: All things being equal, what accounts for the continuing economic gap between black and white America.

And an unjustified shooting leaves a suspect dead, but a former cop gets no jail time.


WHITFIELD: Forty years after the Civil Rights Act of 1964, a new report on the state of blacks in America shows African Americans still have a long way to go before they achieve the same quality of life as whites in the United States. The National Urban League report indicates that there is still a big gap between whites and blacks in economics, housing, education and health.

Here to shed some light on why is Marc Morial, president of the National Urban League and former mayor of -- one of my favorite cities -- New Orleans. Good to see you, Mr. Mayor.


WHITFIELD: Your report examines the disparities on economics for example. Fewer than 50 percent of black families own their own homes versus more than 70 percent of whites. Also, blacks are denied mortgages and home improvement loans at twice the rate of whites. Shocking to you? And did you explore the reasons why?

MORIAL: The disparity in economics was quite large and somewhat shocking in terms of how big it was. But I think that in the report, the fact that there's a home ownership gap points to a way that we can begin to close the economic gap in America, and that is with a new focus on home ownership.

WHITFIELD: Alarming disparities on health, as well. Specifically your report says blacks are twice as likely to die from disease, accidents and homicide and life expectancy for blacks is 72 years versus 78 years for whites. What is the explanation? Is it simply access to healthcare?

MORIAL: It is access, but we've got to address the obesity condition, the obesity situation with our children with, adults, through nutrition, through fitness, through a greater awareness about our intake of foods. This is preventable. I really believe in the health area with a number of things. One of course, is improving access to healthcare, we can begin to address that issue and clothes that disparity.

WHITFIELD: All right. On education, equally important. Your findings are saying that the teachers with less than three years experience teach in minority schools at twice the rate that they teach in white schools. How is this, when this is a year we celebrate the anniversaries of Brown versus Board and the Civil Rights Act.

MORIAL: Our education experts point to this teacher quality issue is something that can easily be addressed through professional development, through teacher certification, through a number of very important things. It can be addressed and they feel very strongly that in addressing it, you can help to close the educational achievement gap. And I think the nation needs to expand its commitment to early childhood education, make it universal. Start our kids in school at three, let's expand Head Start.

Let's produce in this country high quality early childhood education. Let's expand access to it. Let's get our children learning and reading at a much earlier age. We think that's one of the keys to closing the education gap in the 21st Century.

WHITFIELD: A sobering report. President of the National Urban League, Mark Morial, thanks very much.

MORIAL: Thanks a lot.

WHITFIELD: Some say this former cop got off too easy after shooting a suspect in the back. Did his punishment fit the crime? Also these T-shirts got somebody's knickers in a twist. Are they taking a joke too seriously?


UNIDENTIFIED MALE: To me what it says is the people in West Virginia so value marriage and so value family that they want to marry people within their own family.


WHITFIELD: And if you're looking for a friendly visit, here are some places you can go and where they're more likely to tell you where to go.


WHITFIELD: Controversy over the shooting of a black man by a white cop. You've heard that before, but in the case you're about to see, there are lingering questions about both men and the price they paid.

Alina Cho reports.


PEARLYLYN REID, VICTIM'S MOTHER: You shouldn't have died. You didn't do anything.

ALINA CHO, CNN CORRESPONDENT: Every week, Pearl Reid visited the cemetery where her son Franklin is married less than a half mile from her home and the place where here was shot to death nearly six years ago by a New Milford, Connecticut police officer. The police station is up the road.

REID: We have wolves up there, wolves in blue up there.

CHO: 27-year-old Franklin Reid was wanted for probation violations and had just gotten out of prison. He was shot in the back at close range. Officer Scott Smith testified he thought Reid may have been reaching for a weapon. The prosecutor said the only weapon found was a small closed jackknife in Reid's coat pocket several feet away. On Tuesday, Smith pleaded no contest, was sentenced to two years probation but no jail time. Smith, agreed to never again work as a police officer and to never own a gun.

QUESTION: Glad it's over?


CHO: In 2000, a jury convicted him of first degree manslaughter in the 1998 shooting. He was sentenced to six years, but that conviction was thrown out.

(on camera): An appellate court ruled the trial judge improperly barred defense witnesses from testifying and did not instructs the jury about self-defense laws. While the case was appeal, Smith remained free and never served a day in prison.

JAMES GRIFFIN, NAACP: If that would have been a black police officer and a white person, god knows what would have happened to that black police officer.

REID: Your children should bury you not you burying them.

CHO: Franklin Reid's brother Wayne got a tattoo to remember what happened.

UNIDENTIFIED MALE: It says in memory of my brother.

CHO: That's quite a tribute.

UNIDENTIFIED MALE: Yes. I'll never forget.

CHO: Alina Cho, CNN, New Milford, Connecticut.


WHITFIELD: And a theory of relativity upsets the mountain state. Is West Virginia just being too sensitive?


WHITFIELD: The fatally hip retail chain Abercrombie and Fitch is known for courting controversy and the T-shirts it else is bearing this slogan, "It's All Relative in West Virginia," they've done it again. They've upset the governor of West Virginia so much that he wants them pulled from store shelves. But when the governor of a state demands a major retailer stop selling a T-shirt, maybe it's time to lighten up.

Paula Zahn talked about that and more with Andy Borowitz.


PAULA ZAHN, CNN ANCHOR: You're a sensitive guy.


ZAHN: You have to know that offends a lot of people in West Virginia.

BOROWITZ: Nothing is more hurtful than a T-shirt that defames your state. But I think it's maybe not a completely bad message. Because to me what it says is the people of West Virginia so value marriage and so value family they want to marry people within their own family.

ZAHN: Andy. Andy. Andy.

BOROWITZ: I'm just trying to see the positive side.

ZAHN: As you always do.

BOROWITZ: As I always do.

ZAHN: On to Donald Trump, we are told he is trying to...

BOROWITZ: Trademark the words you're fired.


BOROWITZ: He wants to own those two words, as if he doesn't own enough already. I don't think this is a good precedent. I think the English language belongs to all of us, maybe not to President Bush but I think it belongs to all of us, and we should use it at our will. I really think so.

ZAHN: Does this belong to all of us. Let's listen to this together.



ZAHN: All right. You don't see Howard Dean staking a claim to his yell.

BOROWITZ: I don't think he could stake a claim to "yeow." (ph) That's used by people who go to NASCAR races, and you want to be able to say "yeow." I think it's fair.

ZAHN: Now on to David Gest. You think he's on to something here.

BOROWITZ: He is, of course, the former husband of Liza Minnelli. I'm a little bit concerned he might try to trademark the expression "Stop it, Liza, stop it, stop it," which is a sentence that all future husbands of hers should be able to use.

ZAHN: You are really mean tonight.

BOROWITZ: Well, I'm sorry. I'm looking out for the little guy.

ZAHN: Now Paris Hilton, your really concerned about her as well.

BOROWITZ: Yes, I think it's conceivable this trend continues. Paris Hilton might try to trademark that's expression, "You're not taping this are you?" Which I again feel is something everybody should be able to use.

ZAHN: The bottom line, language belongs to all of us.

BOROWITZ: Absolutely. Absolutely. I think all of us can really embrace that. I do.

ZAHN: Wholeheartedly.

BOROWITZ: Wholeheartedly.

ZAHN: I can tell. BOROWITZ: As matter of fact, I just trademarked the expression wholeheartedly. I'm going to use that from now on.

ZAHN: It's yours, you can have it.

Andy Borowitz, thanks for stopping by.

BOROWITZ: Thanks for having me.


WHITFIELD: Thank you for stopping with us tonight. I'm Fredricka Whitfield.

"LARRY KING LIVE" is next. His guest, former counter terrorism chief, Richard Clarke who testified today before the commission investigating the 9/11.

And tomorrow on PAULA ZAHN NOW, the sons of Camelot. A look at the past and the future of the Kennedy dynasty. Have a good evening.


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