[Bill Hemmer, Cnn Anchor:] We want to shift our attention to John Walker. Can Walker get a fair trial here in the United States? Let's talk about that question and some answers now. Criminal defense attorney Ron Kuby is live in New York with us. Ron, good afternoon, good to see you.
[Ron Kuby, Criminal Defense Attorney:] Thank you.
[Hemmer:] Former federal prosecutor Victoria Toensing also with us, from Washington.
[Victoria Toensing, Former Federal Prosecutor:] Hello. Victoria Toensing Hi there.
[Hemmer:] Ron, first to you. The judge says let's start this thing in August. Both sides are saying no, let's wait until November. Does it take nine months to get ready for a case like this?
[Kuby:] It depends on the complexity of the case. It certainly can. The government had the opportunity to create vast amounts of material, there are a large quantity of documents, there are all kinds of difficulties tracking down witnesses who were overseas and trying to bring them back. So it easily could easily take nine months.
[Hemmer:] Victoria, you wrote a piece this past week that I read that you think essentially that, at this point, John Walker may have gotten off easy because is he not facing a change of treason. Explain that.
[Toensing:] Correct. The evidence is there. Treason is defined in the Constitution as levying war against the United States or giving aid and comfort to the enemy. Carrying grenades and rifles while marching with the Taliban certainly fits into that factual and legal definition.
[Hemmer:] Does Victoria have a point, Ron? Should there be a treason charge here? In essence, if it's not, is it slipping the legal noose, sort of speaking?
[Kuby:] Well, Victoria's point was debated within the highest circles of the Justice Department itself. You certainly could bring treason charges, but the Constitution poses a high burden. You need two eyewitnesses to the actual act of treason itself. And I think the Justice Department's thinking was why go for the death penalty in a questionable legal theory when you have stronger legal grounds and you still are able to give this guy life in prison without parole.
[Toensing:] Let me make two points on that. First of all, you don't have to ask for the death penalty. I think it is a matter of public policy treason should charged, because that's what he is, he is a traitor to the United States. So we should call like it is. The death penalty does not have to be requested. That is always a separate decision by the Justice Department. The two witnesses are a no-brainer. You can have two American soldiers say we captured him while fighting with the Taliban.
[Hemmer:] Let me leapfrog a little bit to ultimately what could, and many people see, is the core issue. Can Walker Lindh get a fair trial just a few miles away from the Pentagon. Ron, what do you think? Ultimately some say this is the biggest test for the U.S. legal system and a way for it really to shine on this matter.
[Kuby:] I think it's a tremendous challenge, but we have had challenges before. We had a man attempt to assassinate the president of the United States on national television, and he was tried in Washington, D.C., and, in fact, was found not guilty by reason of insanity. So if you invest the time and effort necessary to weed out those jurors who have bias and prejudice, he can get as fair of a trial as is possible to have.
[Hemmer:] Can you speak at all, Victoria?
[Toensing:] No, I'm sure we are in agreement. It's up to the court. I think it is interesting for people to see how different these federal courts are than the court that everybody really broke their innocence about how courts work, with Judge Ito and O.J. Simpson. These judges do not stand for any nonsense. They will proceed for as much to protect the defendant as the government. Just as you heard the court says, Hey, I don't care what the defense and prosecution decided, I want this trial sooner, you will see a judge who is going to question very carefully each juror to make sure there is no one there that brings prejudice that they couldn't decide the case fairly.
[Hemmer:] As a prosecutor and a defense attorney, I want to get your arguments on this. Victoria, first to you. What's the strongest bit of evidence have you against John Walker? How would you try it?
[Toensing:] The statements. There are three different kinds of statements. There are the statements to CNN, the e-mails, and then the statements he made to the FBI. So those are all being decided individually whether they are going to be put in or not. Any one of them is evidence that will convict him.
[Hemmer:] It sounds like a pretty tall order, Ron. How do you defend that?
[Kuby:] I think his best chance is to join Team America, become a snitch, an informer. He will make a deal; all his sins will be wiped away...
[Hemmer:] I read something where you said he should defend himself and kiss his lawyers off and do it himself. Were you serious about that?
[Kuby:] I think that of all the people we've seen indicted in the aftermath of September 11, John Walker Lindh, because of his ideology, his rigidity, and what we know about the man seems most likely eventually to fire his legal team, take control of the case himself, and try it wage jihad in the courtroom.
[Hemmer:] That would make one heck of a story, Ron.
[Kuby:] He's going to hire Ron, and Ron is going to come in and strike a deal. Never ever.
[Hemmer:] Victoria, thank you. Ron, many thanks. We will talk again. TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com