Interview with Nelda Blair, Lida Rodriquez-Taseff
ANDREA KOPPEL, CNN ANCHOR: Lawyers for Lee Boyd Malvo, one of the D.C. sniper suspects, tipped their hand and say he'll use an insanity defense. And a mysterious bug is found in the office of the Philadelphia mayor. Joining us to discuss this week's Legal Briefs, from Houston, former prosecutor Nelda Blair, and from Miami, Lida Rodriguez-Taseff, a civil liberties attorney. Good morning, ladies.</s>NELDA BLAIR, FORMER PROSECUTOR: Good morning.</s>LIDA RODRIGUEZ-TASEFF,  CIVIL RIGHTS ATTORNEY: Good morning.</s>KOPPEL: Well, let's start off with the Lee Boyd Malvo case. He's 18 years old now. What are the chance that he, his insanity plea is going to convince the jurors? What is the burden of proof that the defense team has to come up with? Nelda, how about if we go with you first?</s>BLAIR: Great. Thanks. Well, in my opinion, it's a desperate move on the defense's part. They don't have another defense to use for this man that can -- that pleaded not guilty, but in reality it's going to be found guilty. But to plead insanity, what they're trying to say under the law is that he didn't know at the time he shot these people that it was wrong to do so. Now, his lawyers are saying that he was "indoctrinated." I find that to be very unusual to use for an insanity defense. Indoctrinated could mean that he succumbed to social pressure or that he was influenced by his cohort. But not knowing right from wrong is a very different definition from being indoctrinated and I find it rare that that kind of thing will work in the courtroom. I do not think the defense has a good chance of making a jury believe that he didn't know right from wrong when he was hunting down people and shooting them for sport.</s>KOPPEL: OK, well, Lida, I mean the fact of the matter is that Malvo was, is now 18 years old. John Allen Muhammad is now 42 years old. The age difference is certainly there for an impressionable young teenager. Do you disagree with Ms. Blair's perspective?</s>RODRIGUEZ-TASEFF: Well, you know, it's funny, because Nelda didn't even answer your question. The test here, which was your first question, is what's the standard? Well, the defense has to prove that it is more likely than not that Mr. Malvo was, did not know right from wrong or did not know the fact that, of the conditions of this crime. So that, at the end of the day, it's up to the defense to prove its defense. So, is he going to succeed? Who knows? Chances are -- these are very, very hard cases to prove. Even in cases where the defense has a good claim of insanity it is a very, very difficult case. Here, what we're looking at is an impressionable person, 17 years old, who had a very weird relationship with a 42-year-old man. He called him his father. During the questioning, he referred to him repeatedly as his father and he also talked about how it was his job to protect his father. So at the end of the day, will this defense succeed? Who knows? But I disagree with Nelda. He's entitled to raise it. That's all that this is about. And, in fact, it's a defense burden. We're not going to wake up tomorrow and he's going to be out on the street and everybody's going to say ooh, how did that happen? That's not how these go. He has to prove this defense to a jury.</s>BLAIR: Well, and also...</s>KOPPEL: OK, let's move on to our other case, which is the -- another odd case, actually, the Democratic mayor of Philadelphia, John Street, who found -- this was just a routine sweep that some of his security did to his office -- found a bug, not the kind that fly around, but the kind that sit there in the -- just above his ceiling there. What is your take, Nelda, as to whether or not he is, in fact, subject, as federal officials say, a subject but not a suspect of a federal investigation?</s>BLAIR: Yes, well, I think what they've told him is that he's not a target of the investigation. Well, that may well be. But obviously something is going on that the FBI is interested in in Street's offices. They evidently found a bug there. The FBI hasn't laid claim to it, but the sources say that, yes, indeed, it is an FBI listening device. And if that is so, then something is going on and clearly the public needs to know. November 4, an election is coming up where Street's running for reelection against a gentleman he barely won over last time. So it's really important that the divided Philadelphia know what's going on with their mayor. Now, not being the target doesn't mean that he's not the subject. He could obviously be involved in an investigation, and clearly there's something there we need to know about.</s>KOPPEL: Well, actually, Lida, on that point, we know that Street's campaign has said that they think this could be dirty politics on the part of his Republican -- his opposition there in the November elections. What do you think the chances are that this could have more to it than just a regular FBI investigation?</s>RODRIGUEZ-TASEFF: Well, you know, there's no such thing as a regular FBI investigation when they're using a bug. Bugs are investigative tools of last resort. They're only supposed to be used in very limited circumstances. Eight people, eight people in the Justice Department are the only ones who have authority to approve these little suckers. So whether or not, you know, what this is all about, whether or not it's dirty politics, it's certainly gamesmanship by the FBI. Who knows how it is that they got this bug? Most people will tell you that they're required to show probable cause and I'll tell you that after September 11, that standard has changed complementally, especially for routine investigations. And this is not going away any time soon. I very much doubt, at the end of the day, when all is said and done, that you will find that there was a warrant that was gotten to plant this bug with probable cause. I believe that what is going to emerge at the end of the day is that this investigation was done pursuant to powers given to the Justice Department after September 11 and that there was no probable cause showing. How it's going to affect the election, who knows? But certainly the voters of Philadelphia deserve to know what this is all about.</s>BLAIR: Well, Lida...</s>KOPPEL: Well, certainly...</s>BLAIR: ... are you saying that it was put in there improperly? If it was done with powers that were granted after September 11, then it was done with proper governmental powers.</s>RODRIGUEZ-TASEFF: Well, we don't know how it was put in there.</s>BLAIR: And that's indicating...</s>RODRIGUEZ-TASEFF: That's the whole issue.</s>BLAIR: That's indicating...</s>RODRIGUEZ-TASEFF: This is an FBI...</s>BLAIR: No.</s>RODRIGUEZ-TASEFF: No, come on, Nelda.</s>BLAIR: No, you're indicating that it might be politically motivated. And let me say this. In an election year, everything that happens is claimed to be politically motivated. Remember Hillary Clinton's vast right-wing conspiracy? It's all about the other side. So to say that it was done through some terms that weren't proper, you know, you need to be very careful about saying that, because the U.S. government does have powers to go in and make investigations that are being...</s>RODRIGUEZ-TASEFF: Oh, come on, Nelda...</s>KOPPEL: Unfortunately, unfortunately, ladies -- and I know that this is obviously a very charged matter -- but I'm going to have to give Nelda the last word there. We have run out of time. Nelda Blair, Lida Rodriguez-Taseff, hopefully we can get you back soon and continue before the election the rest of this conversation. Thank you both.</s>BLAIR: Thank you.</s>RODRIGUEZ-TASEFF: Thank you.