[Kyra Phillips, Cnn Anchor:] The parents of Danielle Van Dam say they want people to remember their daughter's life, rather than focus on her death. Damon and Brenda Van Dam are asking people to pay tribute to Danielle at a San Diego park where she used to love to play. Mourners have recently created a public memorial at the remote highway site, where Danielle's body was discovered, one month after she was abducted from her home. Plus the Van Dam's say they don't want Danielle's memory to be associated with such a sad place.
[O'brien:] Much of this week's news has come from the nation's courtrooms, from the continuing trial of Andrea Yates to the overturning of the convictions in the Abner Louima torture case in new York City. Lots of legal issues to discuss, and so why don't we do just that. We are joined in New York by Pam Hayes a criminal defense attorney and former state prosecutor, and here in Atlanta, we welcome trial consultant Andrew Sheldon. Good to have you both with us.
[Andrew Sheldon, Trial Consultant:] Good to be here.
[Pam Hayes, Criminal Defense Attorney:] Good to be here.
[O'brien:] Since we were just talking about the Yates case, and we'll begin ladies first with you, Pam, in New York. The Yates case, and now the insanity defense is a defense, which has been certainly talked a lot about, all the way back to John Hinckley and the Reagan shooting, and it's a discussion which always leads to the abuse of that defense. Could this be one case where it is clear that insanity was the cause?
[Hayes:] I think it's very clear. It's clear that she has her prior conditions. It's clear from what she was going through right before the children, and they have documented evidence to show that Andrea Yates was, in fact, a person who was insane at the time of the act. I think that this is one of the worst cases of criminal insanity that the system has ever seen, and I think it's very important that everybody watch so we can know that this isn't something that's sane. I know that's not the prosecutor's view, but I think from anybody who's listening, it's clear that this woman was not sane at the time she killed her children.
[O'brien:] Andrew I guess, first of all I'll ask you if you agree with what Pam is saying in the sense that this is, perhaps, as clear a cut case of insanity as could ever be brought forward into a courtroom. I guess the question would be, what is an appropriate punishment?
[Sheldon:] I think an appropriate punishment for somebody who is insane would clearly be some treatment first. I think to put her, to incarcerate her and to give her treatment would be extremely important.
[O'brien:] So, incarceration is not necessarily the way to go?
[Sheldon:] Well, I think hospitalization with incarceration would be a combination that would certainly be acceptable to that jury.
[O'brien:] What about, would there be a public outcry if that were, in fact, what was meted out here?
[Sheldon:] That's probably going to happen regardless. My guess is that the "not guilty by reason of insanity" plea is used so seldom, and this is such an atrocious event. As a matter of fact, all four of the cases you want to talk about this morning are insane in some way or other, that there will be a public outcry if there is anything short of an execution for example.
[O'brien:] I guess
[Hayes:] Oh, I think that
[O'brien:] These crimes, it's difficult to measure sanity when you're talking about acts that are so hard to even talk about in some cases. What about guilty but insane, or insane and guilty?
[Hayes:] Well, they don't have that type of split verdict in Texas. We don't execute and we don't find people who are insane guilty, because they're not guilty under our law. People who are insane do not form the requisite mental state to be able to do a crime. What they are doing is just completely off the wall and that's why you have a not guilty by virtue of insanity. In some jurisdictions, I think Delaware is one of them, they have guilty but insane, where in fact the person is incarcerated but before they're incarcerated, they are in fact sent to a mental institution. In this case, Andrea Yates is obviously a person who's going to have to be mentally confined or criminally confined in a mental institution for the remainder of her life. She's not going to get better, and for everybody who's worried that she's going to get away with this, it's not getting away when you're insane and you're in a state mental institution, and I think that's what is needed.
[O'brien:] Pam, let me ask you this in this case. Number one, do you really think she's a threat to society at large; and secondly, is there any punishment that a judge or jury could issue here that could possibly match what she has to live with?
[Hayes:] I think that she is a threat to society.
[O'brien:] You do?
[Hayes:] She's a threat to herself. This woman, unless she is on medication and she's forced to take medication as she's being examined by doctors in a safe and a confined place is a threat, and that's what happens to her. She went off the bandwagon and she killed these five innocent children. In terms of punishment, the public needs to know what a state mental institution is all about. I mean, it is a horrible place. I think given the choice, I would rather be in jail, but you know, that's something that we, the public, don't know that much about and we really need to find out more about it. So I think they should just keep her in the insane asylum for the rest of her life or a significant portion thereof.
[O'brien:] Andrew, what are your thoughts in all that?
[Sheldon:] Well, as a person who's got a legal background, as well as a psychological background, I guess I would rather be in a mental hospital than in a prison, if I had the choice. So I disagree about that. It's clear that in each and every one of these cases, there is some amount of what we used to call criminal insanity. In other words, people who are insane and are dangerous to others because they commit crimes.
[O'brien:] Is Andrea Yates a threat to society though?
[Sheldon:] She's there are at least two ways to look at that. One is that she is guilty to herself, I mean dangerous to herself, and she's clearly in the past been dangerous to others. Who can predict whether she would be dangerous outside her family? But she may be very dangerous to herself, and in many states, many jurisdictions, that's enough to commit her.
[O'brien:] All right, let's move on to Abner Louima, shall we? The Appeals Court at least to a layperson such as myself, seemingly stunning statements here. Two of the police officers will walk. They may ask for reinstatement as police officers on the NYPD. And Charles Schwarz, who is the so-called second person involved in this, along with Volpe who pleaded guilty or pled guilty, now faces a new trial. What's interesting about this is that the grounds on which he faces a new trial is that his lawyer supposedly had a conflict of interest. But this conflict of interest with the Police Benevolent Association was well known during the trial. Schwarz was even asked about it, and said you know, I know it's there but I still want this attorney to represent me. Isn't that enough to settle that issue for the trial, Pam?
[Hayes:] I think it's enough. Obviously I disagree with the Second Circuit's opinion, but they're the people who have to make this decision. In this instance, Mr. Schwarz attended what we call a curcio hearing. A curcio hearing examines the facts as to whether this person can give you an adequate and a sufficient legal representation, while the trial is going on, where he or she might have some outside interest. In this instance the only interest that Mr. Worth I think his name was had was that his firm had a PBA contract, and some of them were doing the civil matter. But he was barred, his firm was barred against doing the civil matter, and the courts said there are so many rights that a client can not waive, and those rights in this instance were one of them. I think it's ridiculous. I feel like no one ever thought they would come that way, and it just leads to a lot of dissension into a lot of people in a lot of communities feeling that the system is just not fair. You know, they're looking for an excuse.
[O'brien:] Andrew.
[Hayes:] They didn't even comment on the merit of the case.
[O'brien:] Andrew, what do you think about that? I mean this whole conflict of interest issue is kind of interesting inasmuch as it was quite evident during the trial that if you perceived it that way, it existed.
[Sheldon:] I think that this is going to be one of those cases, one of the situations where legal procedure causes some injustice, and I you know, from an outsider's point of view, not being in New York as close to it as Pam is, I think that if the judge's role is to really fly speck a trial to make sure that nobody's rights are infringed, that they've done that in this case.
[O'brien:] And it is not a judge's responsibility, I guess, an appeals court judge, to look at the big picture and what the impact of an additional trial might be, and whether in fact looking at that fly speck, ignores a greater truth. Andrew.
[Sheldon:] Well, the procedural rules that trials have to be, have to follow, are fairly strict. Yes, they need to look at the bigger picture. But in this case, they can't. They weigh the facts. They weigh the information that they are faced with, the grounds for appeal, and they have to make a decision.
[O'brien:] All right, our legal colloquy is over. We appreciate it both.
[Sheldon:] Thank you.
[O'brien:] Pam Hayes, Andrew Sheldon, our legal beagles this morning. We appreciate you joining us and helping us to understand the system that oftentimes if difficult to understand.
[Sheldon:] Thanks. TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com