CNN Transcript - Burden of Proof: Mark Chmura On Trial: Former Pro Football Player Accused of Sexual

Burden of Proof

Mark Chmura On Trial: Former Pro Football Player Accused of Sexually Assaulting 17-Year-Old Babysitter

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF, a former pro football player stands trial in Wisconsin. Mark Chmura is accused of sexually assaulting his 17-year-old babysitter.

(BEGIN VIDEO CLIP)

CHMURA ACCUSER: I didn't know what to do. I was in total shock. I couldn't fight him off. He was right in front of me and he's three times my size. And I didn't -- it was hazy. It was like not happening to me.

MARK CHMURA: Please withhold judgment and allow me the simple opportunity to tell my side of the story. Once you have heard all, and I stress all, the facts, I will then accept your judgment, whatever that may be.

(END VIDEO CLIP)

ANNOUNCER: This is BURDEN OF PROOF, with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. Roger is off today.

Former Green Bay Packer Mark Chmura stands trial in Waukesha, Wisconsin, accused of third-degree sexual assault and child enticement. Both charges are felonies stemming from a post-prom party at a friend's house. His accuser was 17 years old at the time.

(BEGIN VIDEO CLIP)

CHMURA ACCUSER: He pulled me onto the floor.

UNIDENTIFIED MALE: How did he pull you onto the floor?

CHMURA ACCUSER: He pulled me down and had his other hand on my back and put me on the floor.

UNIDENTIFIED MALE: What happened when you were on the floor?

CHMURA ACCUSER: He got on top of me.

UNIDENTIFIED MALE: Any words being exchanged at this point? CHMURA ACCUSER: No.

UNIDENTIFIED MALE: He saying anything to you?

CHMURA ACCUSER: No.

UNIDENTIFIED MALE: Could you see what he was wearing at this point?

CHMURA ACCUSER: No.

UNIDENTIFIED MALE: What happened next?

CHMURA ACCUSER: He raped me.

(END VIDEO CLIP)

VAN SUSTEREN: Joining us today from Madison, Wisconsin is former Dane County District Attorney Hal Harlowe. Also in Madison, Brian Brophy, who just left as Dane County district attorney. And here in Washington, Teddy Florence (ph), criminal defense attorney Bernie Grimm, and Anita Horwath (ph). In the back, Betty Burton (ph) and Florence Bangura (ph).

And joining us by phone is Joel Kleefisch of WISN, Milwaukee.

Joel, you have been in the courtroom for this trial. Tell me, the complainant obviously has very tearful testimony accusing Mark Chmura. What other evidence does the prosecution have before I ask you to tell me a little bit about the defense?

JOEL KLEEFISCH, WISN REPORTER: Greta, the prosecution has somewhat of a tough case in this scenario because their strongest witness was indeed the alleged accuser in this case. They have no physical evidence, as was testified to in the defense's case this morning. There was no DNA exchanged in the alleged attack. So that's the toughest thing for the prosecution, is to get past the fact that they don't have a lot of strong physical evidence. And their strongest person they put on the stand was the accuser, who give a very tearful account of what she called rape on the stand.

VAN SUSTEREN: Joel, where are we in the trial? Is it still in the prosecution case?

KLEEFISCH: The prosecution has rested now, and that has allowed the defense to begin their case two days ago. And they put on their strongest witness yesterday. He's a 17-year-old high school football player with ambitions to play college and professional football. His name is Mike Kleber. He was at the party that night. He says he followed around Chmura nearly the whole night. And what's very important and key to this case is that he says he watched Chmura go into the infamous bathroom. And he says then he saw Chmura's accuser come down the stairs, walk toward the bathroom, at which time he says he told her, do not go in there, what are you doing? don't even think about it; at which time he testified she looked back at him with a smile, turned and walked into the bathroom with Chmura. And what's critical about this case is because we have one count which is the child enticement. In that case, the prosecution has to prove that an adult lures or entices a minor into a room for immoral sexual purposes. So that's pivotal to the case in that area, and it's also pivotal to whether the sex was consensual, if there as any sex at all -- the alleged sex -- if it was consensual.

Her story is very different. She said on the stand that Chmura took her by the hand and led her into the bathroom. And the jury has been watching very intently through both sides of it so far, Greta.

VAN SUSTEREN: Brian, let me go to you. You're a former prosecutor in Dane County. In the state of Wisconsin, must there be corroboration to -- in a simple he says/she says sexual assault case?

BRIAN BROPHY, FORMER DISTRICT ATTORNEY: There doesn't have to be corroboration, Greta. But unless you've got something to corroborate those statements, you're going to have a tough time making that case.

VAN SUSTEREN: Brian, just based on an accusation by a 17-year- old without other physical evidence, when you were DA, is that the type of case you would bring? I mean, how do you make that decision?

BROPHY: Well, you make that decision based upon what you just called corroborating evidence. You make that decision based upon how credible that testimony is going to be given the totality of the circumstances that you've got. In this case, the prosecution is going to have to do a good job showing the whole sequence of events that evening which do help make her story more credible.

VAN SUSTEREN: Hal, you are also a former DA. How tough a case is it when this is -- at least there's nothing else apparently to corroborate, at least thus far, other than she says she was raped?

HAL HARLOWE, FORMER DISTRICT ATTORNEY: Yes, it's always difficult. And any good prosecutor wants to avoid placing an alleged victim in the position of having to carry the case all by themselves without some associated evidence. So -- and as I've watched this case, I think it is a difficult case and I think the prosecution is in trouble.

VAN SUSTEREN: Tell me, Hal, how much time does Mark Chmura face if convicted?

HARLOWE: Well, his penalty exposure is 40 years. The charge of third-degree sexual assault carries up to 10 years. The other charge, the charge of enticing, carries 30 years, even though I think most people looking at that would consider it to be the less severe conduct. As a practical matter, he wouldn't get anywhere near the maximum were he convicted.

VAN SUSTEREN: Bernie, 17-year-old, apparently, at the time this incident is alleged to have happened. As a defense attorney, how aggressively do you cross-examine her?

BERNARD GRIMM, CRIMINAL DEFENSE ATTORNEY: You know, you really have to rely viscerally on your raw cross-examination skills. At the moment the prosecutor says, I'm done cross-examination, at that point you make a judgment, is this somebody I'm going to go after by the throat or is this someone I have to be delicate with?

VAN SUSTEREN: Well, now, you heard her tearful exchange in our opening. I mean, if you have to make that split-second judgment, you heard her, what would you...?

GRIMMM: If I'm making that split-second decision, Greta -- and I've seen you make it in the courtroom -- if your client is innocent, this is all contrived. The tears are contrived, the allegations are contrived, you essentially, as we say in the business, go for the jugular, despite the way she acted.

VAN SUSTEREN: Brian, let me go back to you. In terms of, you know, the tearful exchange, what does a prosecutor do when you have someone who's 17, obviously is traumatized whether she is telling the truth or lying? What do you do as a prosecutor to sort of handle the situation?

BROPHY: Well, you need to treat that witness with kid gloves, but you also -- you want that emotion to come across on the stand. You want that defense attorney to question how aggressively he is going to go after her, he or she is going to go after her, and you want to bring forward that emotion and make the defense attorney look like the bad guy when he goes after her, such that the jury starts to line up on an emotional level with the alleged victim.

VAN SUSTEREN: Joel, you were in the courtroom, as you told us. Tell me, did people who were sort of watching it -- obviously you haven't spoken to the jury -- but watching it, were they convinced or moved by the tears and the story of the complainant, or did they seem to sort of think that she was exaggerating, perhaps making it up?

KLEEFISCH: Well, the prosecution questioned her one day, and it was the tearful testimony. The next day, the defense got their opportunity to cross-examine her, and it was an absolute 180 in the tone of the conversation and the tone of this alleged victim. She appeared somewhat terse, even at one point correcting the pronunciation of her attorney's name to the defense attorney. She was very accusatory in her tone to him. It was two different sides of her. The jury paid close attention to both testimonies, and it's going to be up to them whether they believe, hey, she was telling the truth the first time, or under cross-examination we got to see her true side.

VAN SUSTEREN: All right, we're going to take a quick break.

Up next, trying a case involving an under-aged victim: minor-aged witnesses and alcohol. Stay with us.

(BEGIN LEGAL BRIEF)

The Civil Rights Division of the Justice Department concluded Thursday that there was no criminal act in the hanging of a black Mississippi teenager last summer. The teen was found hanged in his front yard last June 16.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

VAN SUSTEREN: Former Green Bay Packer Mark Chmura is being tried for sexual assault in Waukesha, Wisconsin. The former football player is accused of raping his 17-year-old babysitter at a high school party. Actually, it was at a post-prom party.

Let me go to you, Hal. Obviously, you know, it's easy for us being far away from the courtroom to have all sorts of thoughts on how a case should be tried. But tell me on the issue -- if this is simply a he says/she says -- and Joel has described in the courtroom the sort 0of different versions or different personality of the complainant witness on the witness stand -- what do you do when you make the decision whether or not to put Mark Chmura, the accused, on the stand?

HARLOWE: Well, that is one decision that is -- rests with Mark Chmura. He's going to be getting a lot of advice about it, but he may have a mind of his own about this. From what I've seen, he doesn't need to be called.

And one of the things that -- one of the ingredients that goes into that analysis is just the cost/benefit analysis. Once he's put on the stand, he's going to have a lot of explaining to do. And although it's tempting to try to want to win your case running away, this is a case in which what the defense is going for is reasonable doubt, and arguing -- and I think they'll be able to do it persuasively -- that the government hasn't met its burden of proving guilt beyond a reasonable doubt.

Once Chmura takes the stand, he's the one other person that was in that room. He has a lot of explaining to do. First of all, he's the one who would have to explain exactly what occurred, and his account may begin to fall apart. So that could backfire on them.

VAN SUSTEREN: Hal, I obviously have a little extra knowledge about that part of the country, having grown up there and being a Packer fan myself. Actually, let me toss this to Brian.

Brian, how much is the fact that this is a Green Bay Packer? Everyone in Wisconsin loves the Green Bay Packers. Picking that jury, what difference does that make? Who gets the benefit, the prosecution or the defense?

BROPHY: I think it was an absolute coup by the defense to get a Rock County jury. You get down by that Illinois border and you might even have a Bears fan. Yes, I think that the defense gets a benefit there.

VAN SUSTEREN: Joel, how much has the word Green Bay Packer come up in this trial? I guess we've lost...

KLEEFISCH: ... the original pools of people, there were -- was one potential juror I noticed came in wearing a Green Bay Packers Super Bowl sweatshirt. It was extensive throughout the questionnaires, it was extensive in the voir dire process. They asked them all whether they could put aside, if they had any, team fan appreciation for the Packers, if they would be able to set that aside in judging a former Green Bay Packer. Of course, the panel they ended up with all answered yes to that question. But it has been talked about extensively, even in court, saying, you know this defendant and you know he was a former Green Bay Packer.

VAN SUSTEREN: Bernie, you are an import. You're not one of us in terms of being from Wisconsin, but let me ask you this question.

GRIMM: Right.

VAN SUSTEREN: We have a Green Bay Packer. It's a big deal in Wisconsin to be a Green Bay Packer.

GRIMM: I couldn't tell by your jacket, but now I know.

VAN SUSTEREN: That was an accident of dress. Anyway -- that was a total accident.

But how difficult, if you're the defense attorney? Do you use that? Is that a card to be played that you've got a football hero, or do you ignore it? And how does that weigh into making the decision to put him on the stand?

GRIMM: Absolutely you take advantage of it. Ray Lewis couldn't take advantage of it because he wasn't in Baltimore. But clearly you would take advantage of it. Sports transcend -- it's just not sports -- people's emotions about being a fan, especially Packer fans. That's -- when you live in Green Bay, that may be all you have to live for -- and surrounding areas. They can't...

(LAUGHTER)

... imagine that this man would do something like that.

VAN SUSTEREN: I don't know if that was a compliment or an insult.

GRIMM: It was a compliment.

VAN SUSTEREN: It was a compliment. I figured it was.

Let me go back to you, Joel. What can we -- do you know Mark Chmura? If Mark Chmura does take the witness stand, is he going to be an effective witness, or is he bombastic? I mean, what's he like?

KLEEFISCH: I was going to just mention this to you. It was just mentioned about a few minutes ago that -- in court by the defense attorney -- that they decided not to call Mark Chmura. He said he talked it over with Mark Chmura and he made his decision that he was not going to be called to the stand.

And we've seen Mark Chmura speak before this trial in very carefully worded statements, sometimes stumbling over some of the words. I don't know if there was a concern there by the defense, could he get up and be well-spoken and credible? But they have decided he is not going to take the stand.

VAN SUSTEREN: Is that the end of the defense case then? Has the defense rested, Joel?

KLEEFISCH: The defense is calling right now some of the sideline witnesses, a few police officers who gathered evidence, a couple of forensic technicians who are testifying as to how much alcohol was consumed and when. But the defense has pretty much put on their main witnesses, wrapping up with Mark Chmura's wife Lynda this morning. And we expect them to rest sometime today.

VAN SUSTEREN: Hal, the prosecution needs to make a decision after hearing all the defense case whether or not to put on any rebuttal testimony. It sounds like rebuttal testimony would have do to rehabilitation to the extent necessary to the complainant. What do you do as a prosecutor?

HARLOWE: Well, as a prosecutor, if you have rebuttal testimony, you put it on. Judges are critical of people sandwiching their cases and holding back witnesses just to put them on to have the last kick at the cat. I don't know what kind of rebuttal witnesses they might have. They might call somebody related to Kleber. I think it would be embarrassing to have to call the prosecutor who's been excluded to the stand to testify to Kleber's prior statement.

VAN SUSTEREN: OK, Hal...

HARLOWE: I hope they wouldn't do that.

VAN SUSTEREN: Hal, if I were the defense attorney, I'd be standing up and saying, here we have Mark Chmura, a hero of Green Bay Packers; he's a big guy so everybody's accusing him; it's only a he says/she says; you can't convict simply on that; no physical evidence. What are you as the prosecutor going to say?

HARLOWE: Well, as a prosecutor, I think you've got to hark back to the 17-year-old, young woman who, despite the attacks upon her, really has no apparent motive to lie; her reporting the event immediately; the physical evidence, which albeit slight, was consistent with a sexual assault. But I think -- and, of course, the prosecutor can't comment upon Chmura not taking the stand, but that's certainly something that's going to be going through the jury's mind as well. So in arguing that, I think what is going to be argued is that we've heard from one person who was in that room. I think that's got to be done skillfully so as not to get a mistrial, but I think that's what the prosecutor's going to be saying.

VAN SUSTEREN: And if I were the prosecutor, I would, of course, make -- you know, at least make a point of what's -- you know, what is a man doing at a party with alcohol with underage as a sort of reflection on at least some of the whole facts.

But anyway, we need to take a quick break. Up next, the case against Chmura is being broadcast live. Will cameras in the courtroom affect legal strategy of the prosecution and the defense? Don't go away.

(BEGIN Q&A)

Q: Police arrested and charged two people today for what alleged crime in connection with the escape of seven Texas inmates?

A: Providing the getaway car. they are being held on $700,000 bail.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: Former Green Bay Packer Mark Chmura was selected for the Pro Bowl three times and twice appeared in the Super Bowl. Henceforth, his sexual assault trial has garnered extensive media coverage. The age-old question remains: Will this facilitate or hamper justice?

Bernie, closing argument. Is there any way for the prosecutor to mention the fact that Mark Chmura has not met -- has not explained what happened inside the bathroom without stepping on his right to remain silent?

GRIMM: Well, as most of your viewers know from watching the show, a defendant has the absolute right not to testify. In fact, if you ask the judge, he'll tell the jury after closing arguments, Mr. Chmura did not testify. You cannot hold that against him.

VAN SUSTEREN: What if the prosecutor accidentally just sort of gets near it sort of sideways and steps on it?

GRIMM: Yes, I mean there's all sorts of back doors that I've tried to be vigilant to watch, but I don't think -- there's only two people in the bathroom. I didn't think there's any tactful or subtle way to say that to the jury without inviting reversible error.

VAN SUSTEREN: Do you agree, Brian? I mean, that -- I mean, because that is -- I mean, prosecutors oftentimes try to sort of slip that through the side door.

BROPHY: They do. I agree that there's no way that the prosecutor can get near asking directly, you know, why isn't Mark Chmura telling you what went on in that bathroom? But the prosecutor's certainly going to pose those questions to the jury in the form of, what was he doing at this underage drinking party? What was he doing in a hot tub with these underage girls? What was he doing throughout the course of the evening?

VAN SUSTEREN: But does that in some way...

BROPHY: Which is going to raise that.

VAN SUSTEREN: But does that in some way -- I mean, Bernie, you want to respond to that? GRIMM: I think that invites the problem just what we were talking about. I think you can say affirmatively he was at a party with 17-year-olds. That's extremely unusual.

VAN SUSTEREN: Let me interrupt you one second. We've got to go to Natalie Allen in Atlanta.

(INTERRUPTED BY COVERAGE OF A LIVE EVENT)

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com

ncG1vJloZp6cmam2sLqNnKWnZpOkunCgsXqFjHuCfp2Vn45paGlqX2V%2FcK7PZ2dpZpipuq0%3D