[Whitfield:] The jurors in Scott Peterson case are sequestered this weekend. They'll resume deliberations in penalty phase on Monday. They must determine whether Peterson should get life in prison without parole or death. Peterson was convicted last month of murdering his wife and unborn child. The Scott Peterson trial and charges handed down in the NBA brawl are the focus of this weekend's legal round table. With me now from Cleveland, civil rights attorney and law professor Avery Friedman. Good to you, Avery.
[Avery Friedman, Civil Rights Attorney:] Fredricka, hi.
[Whitfield:] Hello. And in New York, criminal defense attorney Richard Herman. Hello to you.
[Richard Herman, Criminal Defense Attorney:] Good afternoon.
[Whitfield:] All right. Avery, let me begin with you. Monday the jurors will be back for day three, not a full day three, but day three of deliberations. Are you surprised that it has taken this long for a penalty phase?
[Friedman:] A lot of commentators have said that they thought something would come back on Friday. We have seen this jury being very serious about this case. Mark Geragos actually did the best job he has done in the entire case in making the pitch, so I am actually not surprised. I'm actually delighted to see that this jury is taking this issue so terribly seriously, and it should.
[Herman:] You know, Fredricka...
[Whitfield:] Some have described yes, go ahead, Richard.
[Herman:] The point I'd like to make is that, it's one thing when you come in for your first day of jury duty and you're opposed with the intellectual proposition, could you impose the death penalty. Is it a whole other thing after a six-month trial to actually impose the death penalty and stand up and be polled. And each of these jurors is going to have to stand up at the end and confirm their verdict to say that they want to kill him. Much different proposition.
[Whitfield:] For the death penalty, it's got to be a unanimous decision. However, there is still the prospect that, what if this were a hung jury, they couldn't even decide on life if that's what ends up being the result during deliberations. Then were dealing with a couple of really crazy options, aren't we gentlemen? We're talking about a whole other new jury.
[Herman:] That's right.
[Whitfield:] And possibly even a whole other new venue, Richard.
[Herman:] If there's a hung jury, the district attorney, Brazelton, will have the option to say whether he wants to go forward with the new penalty phase of the trial. I don't believe he'll do that. In all honesty, I believe the prosecution put on a horrible case. I think there was huge reasonable doubt here. I think there are enormous appellate issues. I think, they take this victory, they give him life in prison without parole. And they've done their job, as far as they can be concerned, justice has been served. That's what will happen if there's a hung jury.
[Whitfield:] Avery, you agree that, the prosecution put on a horrible case, but...
[Friedman:] I don't buy that.
[Whitfield:] some describe the penalty phase as being really powerful, especially hearing from Ms. Rocha.
[Friedman:] Well and I agree with that part of it. The prosecution's case was not a horrible case. I do agree that there are substantial appellate issues. But you know what, I've got to throw some reality into this. The fact is that the California legislature, Fredricka, has put in $220 million to expand the death row section of San Quentin. There are roughly 629 people on death row. They inject one person a year. Even if the jury comes back with the death penalty, Scott Peterson is not going to die by lethal injection. He's going to die in the penitentiary. So while this is all very interesting intellectually, the reality is, that it's not going to happen, he'll spend the rest of his life in jail.
[Herman:] He'd rather not get the death penalty, though. He'd rather have life in prison.
[Friedman:] Well, I agree. I agree with him.
[Whitfield:] All right, let's move on and talk about the NBA case. Five and five; Five players, five fans who were charged mostly with misdemeanor assault and battery. Do you see, Avery, that perhaps there may be more charges to come, that perhaps those that were outside the per view of the videotape surveillance may be being getting charged as well?
[Friedman:] That may happen, Fredricka. I think they have the main culprits. In fact, they also have the victims. Some more schmo named Mike Ryan was sitting there and one of the NBA players thought that was the guy that threw the drink, the reality is they've nailed most of the key players here. Actually, I'm surprised there weren't more felonies. There is one felony charge against one of the fans who threw a chair.
[Whitfield:] The throwing of the chairs.
[Friedman:] Right. Exactly right.
[Herman:] Avery the reason and the reason there were not more felonies is because there were no injuries. After all this brawl, there were no injuries. And the only reason that the felony was brought against only one of those people that was arrested is because he threw a chair and aggravated the condition there. But otherwise there were no injures here. In all reality, these were probably violations. These are probably like traffic tickets, going through red lights. I don't believe these even rise to the level of misdemeanor.
[Whitfield:] And we also had a pretty interesting law lesson this week...
[Friedman:] Oh, no, they're not traffic tickets.
[Whitfield:] ... that even just throwing a drink, that alone constitutes battery. Even though there weren't any serious injuries, as you pointed out.
[Friedman:] Absolutely. You know, Fredricka, the Oakland prosecutor said this is equivalent to spitting on somebody. But the fact is that both the fans and the players are equally culpable from a criminal perspective. And then after that piece is over, watch for a flood of civil litigation coming out of this, surely.
[Herman:] With no injuries, these civil litigations are ridiculous. This is why the legal profession has a bad name for bring these preposterous cases with no injuries...
[Friedman:] That's not right, Richard. These people should be held accountable.
[Herman:] ... with no physical injuries. But Fredricka, the reason the prosecutor had to bring charges is because these sports arenas, whether it's basketball or football or baseball, they're hallowed grounds in American culture. They've got to send a loud and clear message, we'll never tolerate this behavior again.
[Whitfield:] So I wonder if this might precipitate some kind of security changes in a lot of these arenas, too.
[Herman:] Yes, it could. We could very well.
[Friedman:] ... see that. Actually, we may see that, I think, speaking o on behalf of my gender worldwide, you can't check testosterone at the door, but you can actually do something about the distribution of alcohol. I think we're going to see that. I think we're going to see differences in security measures. There's going to be a change in American sports. Richard, a final word, final thought?
[Herman:] Well, I just think yes, I think it's political at this point. I think they send that message loud and clear, you can't do this, basketball, baseball, football. I think the owners are behind it. I think the players are behind it. And this will end it loud and clear. This Artest, he's going he lost $5 million. He's going to get sued. He's got big trouble.
[Friedman:] We'll see. We'll see.
[Whitfield:] Oh, boy. All right, Richard Herman, Avery Friedman, I know we're going to be talking about both these cases again probably next week. All right good to see you.
[Herman:] Take care.
[Friedman:] See you soon.
[Whitfield:] Well, a new intelligence director and a new screening system for airline passengers. Those are just two of the myriad of changes laid out in the national intelligence reform bill. Not clear, how it might change your life and the nation's future overall. We'll weigh the pros and cons of the new intelligence bill in our special half hour look right after this. Well, welcome back. It is a sweeping overhaul of the nation's intelligence community and its creators say it will make America safer. For the next 30 minutes we're going to take you inside the intelligence reform bill. Just hours after withdrawing his name from consideration as the nation's Homeland Security Chief, Bernard Kerik is speaking out. He says this is the right thing to do. Kerik, a former New York City police commissioner, was nominated by President Bush just over a week ago. Kerik says he withdrew his name after realizing he had unpaid taxes and a former nanny he employed may have been an illegal immigrant. Part of the mystery surrounding Ukrainian presidential candidate Viktor Yushchenko has been solved. Three months after he fell ill, doctors in Austria say they know what caused the illness, dioxin poisoning. And they suspect foul play. Yushchenko, the opposition candidate will face Ukraine's prime minister in a second runoff election the day after Christmas. Results of the first runoff were thrown out after fraud allegations. Another American soldier has been killed in Iraq. The U.S. military says a soldier with the 1st Marine Expeditionary Force was killed in action today while conducting security and stabilization operations. The incident took place in Al Anbar Province where Fallujah is located. In our security watch, we'll focus the rest of this hour on an inside look at the complicated and important provisions of the intelligence reform bill now awaiting the president's signature. We'll examine its impact from several viewpoints, including border patrol. And we'll explain what you might not have known about the bill's provisions. We'll hear from Norman Ornsteen of the American Enterprise Institute about that. Second we'll hear about the privacy debate and why critics say the bill could lead to a loss of basic freedoms in this country. And we'll examine the debate over establishing new standards for issuing driver's licenses while trying to target terrorism. But first, the biggest question of all will the intelligence reform work? Here's CNN's David Ensor.
[Unidentified Male:] The conference report is adopted.
[David Ensor, Cnn Correspondent:] The Intelligence Reform Bill promises major change, creating what could be a powerful new director of national intelligence. But experts say it raises more questions than it answers.
[David Kay, Fmr. Cia Official:] The real issue is what is his relationship with all the 15 intelligence agencies? Who actually works for him? Where is the national intelligence council going to be? Who is going to brief the president every day? And what's the basis for that? These are things that actually have to be worked out.
[Ensor:] As it stands now, one man, Porter Goss, wears two hats. He's the CIA director and he's also the director of central intelligence, nominally in charge of all 14 other U.S. intelligence agencies as well as the National Counter Terrorism Center, which began operations Monday. Under the bill, a director of National Intelligence replaces the DCI and is put over the top of a separate CIA director. The Counter Terrorism Center and the 14 other intelligence agencies. But the most important change has to do with these two key agencies. The National Security Agency, the big ear of the u.s. Government, the eavesdroppers and the National Geospatial Intelligence Agency, the big eye of the U.S. government, which analyzes imagery from spy satellites. Right now, though the intelligence director has nominal authority, the Pentagon largely controls the budgets and personnel of these two crucial spy agencies. Under the bill, a new intelligence director gains considerably more control. Potentially shifting the balance of power in Washington.
[Flynt Leverett, Saban Center:] It's not the culmination. It's the beginning and it gives a, hopefully, entrepreneurial first director of National Intelligence some tools that he might use to try and achieve real reform.
[Ensor:] In the bill, Congress failed to reform itself to address the overlapping web of more than 20 committees overseeing parts of U.S. intelligence.
[Unidentified Male:] There's nothing in this bill that addresses the fiefdoms on the hill. And that is going to be an issue that Congress has got to return.
[Ensor:] You think they punted on it.
[Unidentified Male:] Punt? At least you have contact when you punt. I think they ran away from it.
[Ensor:] Senior intelligence officials say the key will be who the president picks for intelligence chief. He or she must have credibility, communications skills, a lot of discretion, a thick skin and the absolute trust of the man in the White House. A pretty tall order. David Ensor, CNN, Washington.
[Whitfield:] Well, what changes might Americans see as a result of the reform bill? Let's look at that and more with Norman Ornstein of the American Enterprise Institute in Washington. Good to see you Norman.
[Norman Ornstein, American Enterprise Institute:] Good to be with you.
[Whitfield:] We're going to hopscotch over a few things. We'll get back to the National Intelligence director in a moment. But first, let's talk about cost. We've heard quite a few little details about some of the changes being proposed in this intelligence reform bill. For one, as it concerns immigration, something like up to 2,000 new personnel on border patrol per year. That, obviously, has not revealed any precise cost measures, but we know that it will be costly to some degree. How will this play out?
[Ornstein:] Well, absolutely. Of course, we've known for a long time that we have serious problems on the borders and that many of the issues that congressional actors like James Sensenbrenner, the house chair of the judiciary committee, wanted to deal with, far more stringent measures controlling immigration were not dealt with in this bill, but it does beef up the border patrol. And that is going to be costly.
[Whitfield:] Is that an obstacle?
[Ornstein:] As you say, we don't know how much. It's an obstacle only in one sense. We just had a budget passed. Actually an omnibus appropriations bill right before Congress took this up, in which they declared victory on holding the line of discretionary spending, of which this is a part. Obviously, we are not going to hold the line. We're going to have at least a couple billion dollars more added in, that will be added in a supplemental appropriations form for the border control itself.
[Whitfield:] All right and now one of the biggest and most perhaps most highlighted changes that is part of this reform bill and that being the director of National Intelligence. How do you get someone, one person, who bring cohesion to 15 agencies who have a culture and historically have not been able to share a lot of information and therein lies the criticism of the underlying problem involving the intelligence community?
[Ornstein:] Absolutely. The difficulty that we have here is multiple. You're absolutely right that we are have a cultural question. It was the same reason and the same rationale that brought together the Department of Homeland Security with over 20 separate agencies departments and bureaus that were radically different and had different cultures. This isn't bringing them together into one agency. It's keeping them separate. They've had this problem that we've called stove piping where everybody gathers their own information and doesn't share it widely. The question is whether adding this new layer, maybe a new layer of limited bureaucracy, will make the difference. What the 911 commission said, what the bill suggests is give this person, the National Intelligence director, some budget authority and then you can grab the hearts and minds of people who are involved out there. But the budget authority in tend is limited enough and the direct lines of communication among and between these agencies imperfect enough that what it is going to take is a strong-willed individual as the first director here to knock some heads together and begin to effect some change. Otherwise we could have the same set of problems maybe with new ones added in.
[Whitfield:] A strong willed individual who is likely to encounter some kind of criticism from some of those agency directors or leadership who might say or accuse this new director as undercutting their authority.
[Ornstein:] Well, exactly so. And, of course, everybody is going to be jealous about their independence, particularly the thing to watch here is how the new intelligence director interacts with the head of the CIA. You know ultimately, as your report suggested, the intelligence director is going to be separate physically from the CIA. But the CIA director who is the known as the director of central intelligence has at least nominally been the figure in charge of the intelligence operation is probably not going to take kindly to having somebody with parallel and superior authority in some ways, but others will also appoint will report directly to the president. So these interactions are going to be tough to work out. Of course, as we've already seen with Porter Goss moving over to the CIA trying to effect major change in a short period of time, it has brought turmoil in the agency. We even see comparable turmoil in the intelligence community.
[Whitfield:] All right and first before we even get to that, we have to hear who the candidates, the nominees for that position just might be.
[Ornstein:] Critical post. Absolutely critical for the president.
[Whitfield:] Norman Ornstein, thanks so much, of the American Enterprise Institute in Washington. Security versus privacy. Will you be losing some of your rights to privacy under the intelligence reform bill? Also, why some people think the new bill will make it harder for them to earn an honest living. This CNN special report continues.