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CNN LARRY KING LIVE
Analysis of Peterson, Bryant Case Developments
Aired January 23, 2004 - 21:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
(BEGIN VIDEO CLIP)
MARK GERAGOS, SCOTT PETERSON'S ATTORNEY: Yes, I prefer Judge Girolami. I think he knows the case. He's on the case. I think that it makes the most sense for Judge Girolami to take the road trip. So if Mrs. Girolami is listening, I'm encouraging you to go on a road trip with your husband.
(END VIDEO CLIP)
LARRY KING, HOST: Tonight: Scott Peterson's defense attorney, Mark Geragos, wants the case's current judge to make the change-of- venue move to San Mateo. The prosecution may have other ideas. Meanwhile, the start of Peterson's double murder trial has been delayed. And Kobe Bryant's back in court, too. Should his accuser's medical and sexual history be part of his trial?
Joining us in New York, Cynthia McFadden, senior legal correspondent for ABC News; Nancy Grace, Court TV anchor and former prosecutor; in Atlanta, defense attorney Chris Pixley; here in Los Angeles, the renowned jury consultant Jo-Ellan Dimitrius, who's working with the Peterson defense team; and back in New York, psychotherapist Dr. Robi Ludwig; in San Francisco, Ted Rowlands of KTVU, who's been covering the Peterson case since day one; and in Eagle, Colorado, for the Kobe Bryant case, Tony Kovaleski of KMGH. They're all next on LARRY KING LIVE.
Ted and Jo-Ellan will be with us when we discuss the Peterson matter, and then they'll be leaving and Tony and Dr. Ludwig will replace them when we discuss the Kobe Bryant matter, two major legal issues in America.
Ted Rowlands, what happened today? They moved Scott, didn't they.
TED ROWLANDS, KTVU-TV: Yes. Tonight he is in the Bay area, in his new home for the next four months in Redwood City, which is in San Mateo County, which is where this change of venue has been changed to. A court date has been set. There was a delay, as you alluded to earlier. February 2, arguments will start in Redwood City. The question is, Who is going to be the judge? Today they did not iron that out. There are a lot of different possibilities here.
Originally, the administrative offices of the courts had assigned Richard Arnason to the case. This is a retired judge with a lot of experience. But the prosecution said no. They used their one 170.6, which is basically a free chance at getting rid of a judge. They said they didn't want him.
Today in court, though, Geragos is challenging that, saying that he didn't agree with the timing of it. So they're going to hear that first on February 2, whether or not Arnason could have been thrown off. Also in court today, Geragos pleaded, almost, with this judge to come along with this case. Judge Al Girolami has been reluctant to go along with it, but Mark Geragos made it plain that he wants him to travel with this case. We'll see what happens. We should know next week what the administrative offices of courts are going to do. They should come up with a new judge.
KING: Cynthia, can the prosecution turn down two judges?
CYNTHIA MCFADDEN, ABC NEWS SENIOR LEGAL CORRESPONDENT: Not for -- not this way, Larry. The prosecution can object to another judge, but they wouldn't get just a free ride, the way they did this time. This time, you get to dismiss the judge without an questions. Each side gets to do that once in California.
KING: Nancy, if the current judge says she'll go and hear it -- or he'll go and here it in San Mateo, is that it? Done deal?
NANCY GRACE, COURT TV: Right. If Girolami goes to the new jurisdiction, it's all over.
A lot of people are wondering why the state used their peremptory challenge and got rid of Arnason. And I'll tell you in a nutshell, Larry, why I think the state got rid of him. Just recently, he tried a death penalty case with a jury. It was a heinous murder, arson, where someone died in an arson. The jury came back with a death penalty sentence, Larry, and then this judge, Judge Arnason, took it into his own hands and reversed the jury decision and vacated that death sentence and gave the defendant life. If I knew that and I was trying a death penalty case, you're darned right I'd want the judge off the case.
KING: You would do that without knowing the facts?
GRACE: Well, I know the facts!
KING: Without knowing why he -- why did he reduce it?
GRACE: I know the facts. Apparently...
KING: But why did he reduce it?
GRACE: ... he disagreed with the death penalty in that case. And recently, there was another big brouhaha in a case he handled called State verse Morbura (ph), where the law required him to send some repeat offenders to jail for 25 to life, and he sent them to the county jail for one year! Well, naturally, that, went up on appeal. But with a track record like that, Larry, convicted felons come up and hug the judge. That's not good the prosecutor, OK?
KING: Chris Pixley -- I thought, Chris, he was a retired judge.
CHRIS PIXLEY, DEFENSE ATTORNEY: He is a retired judge, Larry. And that's actually...
KING: So how could he have heard a murder case?
PIXLEY: Well, that's the kind of judge you're likely to get in a case that's going to go five-and-a-half months right now. When you move a case to another jurisdiction, there isn't a judge that already has this case in front of him. Each judge sitting on the bench will have their own docket. The best judge for a case like this, if you're not going to have Judge Al Girolami follow the case, is a retired judge. They stay on. They continue to work, but they have much lighter caseloads. So although they are deemed retired judges, they are still active. And that's the case with in Arnason and others.
GRACE: You know, Larry...
KING: Jo-Ellan, does the jury -- does the jury consultant care who the judge is?
JO-ELLAN DIMITRIUS, JURY CONSULTANT: Well, you certainly get to know the judge in the process of what we do in the courtroom.
KING: You mean, might you want a different juror, depending on a judge?
DIMITRIUS: Well, every judge...
KING: To that effect.
DIMITRIUS: Every judge has the discretion, in terms of challenges for cause, in terms of how he rules on it. So certainly, knowing a little bit about the judge and how he might rule is important. But you know, I've never been asked particularly what I think about a particular judge.
KING: Ted, did the prosecution ever explain why they wanted him dismissed?
ROWLANDS: No, they just said that they didn't believe that they could get a fair trial with this judge. Really, they don't have to explain it under California law. They get this one shot to get rid of him. Geragos believes that they didn't go about it in the right fashion because a court date had been vacated and then set by Arnason via telephone calls between all the parties, and that's his contention, that this 170.6 just isn't valid. So we'll hear about that on February 2.
KING: Cynthia, is all of this prelude to a zoo?
MCFADDEN: I hope not, Larry, but one suspects that this is going to be a very hard-fought battle on both sides.
You know, let me just comment on the removal of the judge here. I think Nancy's probably right. She's probably put her finger right on it, about why the prosecutors wanted this judge removed. But let me just tell you something that strikes me as odd. We were talking about it about before going on the case. This judge is from Contra Costa County, and so the DA in the Peterson case, Mr. Brazelton, went and talked to the DA in Contra Costa.
And he has an interview in the newspaper, the local newspaper today, saying that if it had been him, he wouldn't have asked to remove this judge in this kind of case, which strikes me as odd, one, that he said it in the paper, and two, that that was the advice he gave the prosecutor, and yet the prosecutor decided to seek his removal anymore. As I say, I think Nancy's probably hit it, that this is the reason he was removed. But it is interesting. And the DA -- the local DA goes so far to say that if they had had this judge assigned to a case like Peterson -- and I quote -- they wouldn't challenge him.
GRACE: Well, I guess not. That local DA is going to be in front of Arnason again! You can't trash the judge publicly...
KING: Wait a minute. I'm confused.
GRACE: ... and then expect to try a case in front of him!
KING: Nancy, I that Arnason's retired.
GRACE: Yes. That's an interesting point, Larry. And let me clarify it for you. I've tried a lot of cases in front of retired judges, and what they are, are judges, trial judges that have normally tried a lot of cases, that reach mandatory retirement. But the judicial council thinks that they are very qualified, and they come in and try cases all the time, especially in protracted trials, like a death penalty or a securities case, and the local judge doesn't want to tie up his or her docket on a five-week trial.
KING: I got you. Chris, is Geragos correct in looking in -- challenging this, suggesting the current judge be the judge? Would you be doing that?
PIXLEY: Well, I would. And he's won -- he's going to win the battle, he's likely to lose the war. Judge Arnason is likely to be recused on the basis of the peremptory strike that the prosecution has exercised. It's rather an unusual rule that California has, where either party is allowed to exercise one strike where they say, We're not comfortable with this judge. There's no reason that need be given for that strike. They can simply make it. After that, you're out of them, and you don't get that anymore. But what Mark Geragos said, Larry, was, Look, the prosecution tried to make this motion to Al Girolami after Girolami was off the case. So when it comes to the timing of their motion...
KING: I see.
PIXLEY: ... they made it to the wrong person.
KING: And when we come back, we'll ask Jo-Ellan about a jury in San Mateo County. As we go to break, here's Mr. Geragos in court today. (BEGIN VIDEO CLIP)
GERAGOS: The fact of the matter is, is that there's something, I think, untoward about the fact that we have the chief justice micromanaging this case. And it is micromanaging because I need to have a judge in which I can raise some issues. And obviously, I've indicated under 4.161, I want Your Honor and I would like Your Honor to at least instruct Mr. Tauzi (ph)-- I know it's presumptuous of me to ask, but to get involved once again and to say that you will take the case where we want to go, and let's get on with it.
(END VIDEO CLIP)
(BEGIN VIDEO CLIP)
RICK DISTASSO, DEPUTY DISTRICT ATTORNEY, STANISLAUS COUNTY: Of course, if the defense hadn't made a venue motion, he could have his trial on Monday in Stanislaus County. That's not where we're at. So in this case, I think everything is completely proper. I disagree completely with his characterization. And I believe, at this point, the court just needs to get another judge assigned by the AOC. And that would be our position.
(END VIDEO CLIP)
KING: We're back with our panel. By the way, Jo-Ellan just tells me (UNINTELLIGIBLE) she works both sides of the bench. She's going to help the prosecution in the Kobe Bryant case, right?
DIMITRIUS: I am.
KING: So you're going to help the prosecutor select the jury in that case. They hired you.
KING: They got to you first.
KING: So you've worked with prosecutors before.
DIMITRIUS: Oh, sure.
DIMITRIUS: We worked on the Rampart case, the Sara Jane Olson case...
KING: Tell me about San Mateo County.
DIMITRIUS: San Mateo is fascinating because it's a fairly wealthy community. I think the average household income up there is 150K. There is -- it's primarily drawn from biotech communities, aerospace communities and computer communities, and it tends to be more Democratic.
KING: In voting?
DIMITRIUS: ... than it is Republican. True. So we have a very wealthy community. We have, you know, a somewhat liberal, by some people's estimations, type of attitudes.
KING: Will that help the defense?
DIMITRIUS: I think that it might, in terms of the death penalty. But beyond that, I really don't know, at this point.
KING: Nancy, did you use jury consultants?
GRACE: I never have used a jury consultant. I understand that, especially Jo-Ellan, has done a fantastic job in the past. And that's because I like to have my own gut feeling with jurors. I like to look them in the eye, and even if they defy all logic -- Larry, I once had a bank robber on a bank robbery trial, OK? He was on my jury, a convicted bank robber. You know, you just got to go with your gut sometimes.
Regarding the DA challenging this judge, I just want to remind everybody that it wasn't that long ago that Mark Geragos wanted the district attorney thrown off, the judge thrown off, the jurisdiction changed, and claimed all the police were ganging up on his client. So I say what's fair for the goose is fair for the gander.
KING: Chris, you want to respond?
PIXLEY: Well, I -- I do think it's true. There's no question that Mark Geragos originally asked Judge Girolami to be recused. But remember the reason. He didn't like the dual tracks that the case was on. You had a civil and a criminal case, each of which had different judges that were making similar decisions about the admissibility -- or excuse me, not the admissibility of evidence, but whether or not records were going to be open. And that was a significant problem. He sent a message, at that point in time, that the court was going to have to decide through one judge. And lo and behold, that's ultimately what happened. So I don't think its it's as cut-and-dry as what Nancy would suggest.
KING: Chris, have you used consultants?
PIXLEY: We have used consultants. I've used consultants just in the last year. And the interesting thing about it, Larry, is that while Jo-Ellan is giving you all of the background and the homework that she does from out of the gate, what really makes someone as talented as Jo-Ellan Dimitrius, one of the -- makes someone a true benefit to a trial attorney is their ability to go in after they've done all the stereotypes and say, OK, we know a great deal about the community, we know a great deal about the people in the community, but to look at the individual jurors and say, Do they or do they not fit within those demographics and within the stereotype, and then pick from there. And in my experience, the best jury consultants, what they do for you, the magic they do for you is what they do when you get there in front of those potential jurors.
DIMITRIUS: I do agree. There are a lot of people in the field, some more academically-based. And it's really -- once you get that profile, going into the courtroom and watching how people respond.
KING: An art more than a science?
DIMITRIUS: I would say, when you get to that level, absolutely, it is.
KING: Let's go to calls. Danville, California. Hello.
CALLER: Yes. Hello. Thank you for taking my call.
CALLER: It is my understanding a jury of one's peers represents the socioeconomic background, education, age, usually occupation. Could you tell me -- this question is for the panel. Could you all respond to this question? Why does someone have to hire Jo-Ellan and others to select a jury, when he's supposed to be judged by a jury of his peers?
KING: What is a peer, Cynthia?
MCFADDEN: Well, actually, I mean, the dirty little secret is, Larry, no one wants an objective juror. The defense wants a jury that's favorable to the defense, and the prosecution wants a jury favorable to the prosecution. I mean, and...
KING: And who is a peer? If you put the head of Enron on, who would be his peer?
MCFADDEN: Well, and who's Martha Stewart's? Martha Stewart's jury selection is going on right now.
KING: Yes, who's her peer?
MCFADDEN: You know, I think, essentially, what the law tries is do is to have people who can come into court and say, Regardless of what I've heard, I will be fair. I mean, we're not doing socioeconomic background checks and profiling to figure out who's going to be on these panels. Essentially, the law is that you take -- that the process for selecting the pool must be fair and representative of the community. You can't exclude certain kinds of people. You can't exclude women. You can't exclude minorities. You got to make sure that everybody's represented in the pool.
And once the pool is judged to be fair, then the process for selecting who will be on the jury is very carefully considered. And I think -- but you know, within that, I mean, wink-wink, I mean, Jo- Ellan is not looking for jurors who she thinks are going to be favorable to the prosecutors, and you know, the same is true on the other side in this one. So...
DIMITRIUS: I think it's also interesting to know that what that has come to mean over the years is a jury that's reflective of community conscience. In these high-profile cases, particularly the long ones, you automatically are excluding people from serving because economic determinism. People that work on an everyday basis, unless their employers pay for them, they -- you know, they don't show up for jury duty. So you start off at a disadvantage.
KING: Ted Rowlands, what history do we have generally of juries in San Mateo in capital cases?
ROWLANDS: Well, According to one defense attorney that I talked to who's very familiar with the area, he said that they had come back with not guilty verdicts in capital cases only once in the past 20 years. However, talking to the defense team, they have come back with not guilty verdicts in other types of cases, seven out of the last ten in the criminal. And they believe that there's a shift, if you will, over the past decade or so. You know, it's really tough to tell, and I guess the defense and the prosecution seem happy with this choice. It wasn't either one of their first choices, but Al Girolami seemed to make a good one here, in that neither side is overly angry about it. That's for sure.
KING: Castro Valley, California. Hello.
CALLER: Yes. Hello.
CALLER: My question is for anyone on the panel. I would like to know, has any other woman come forward, other than Amber? And who cuts his hair while's in jail?
KING: OK, Chris, do you know if another woman has come forward?
PIXLEY: I definitely don't want to answer the second question. I don't know the answer to that.
KING: I'll have Nancy try the second one.
PIXLEY: Our understanding is that the prosecution has talked to other women, and that they may, in fact, have other women come forward in this case. I don't know if it's going to be helpful to their theory or not. And of course, a lot of that information came out before the gag order was issued. We haven't heard a great deal since then. So it's anyone's guess whether Amber Frey will stand to testify on behalf of the prosecution as "the other woman" motive, or if there will be a group of women that they'll parade out. The story is that there is a group of women.
KING: Nancy, does someone come to do the hair of the prisoner?
GRACE: Actually, there is a jail and a penitentiary barber, but this looks awful professionally done. You know, he's coming into the courtroom, giving some very stylized looks. The fact that they have changed so often, we noticed that, but a jury's not going to notice it. He'll be consistent during the trial. I just think Geragos did the best thing ever with cutting the blond or the orange out. Remember when he showed up with the orange hair...
GRACE: ... and the orange goatee and all that? Thank God that's gone. But no, I don't know who's doing it, but I think the jail does have a prison barber.
KING: Could be Dimitrius.
KING: We'll take a break, and we'll be right back with more phone calls on this edition of LARRY KING LIVE. We'll be discussing Kobe later. Don't go away.
(BEGIN VIDEO CLIP)
GERAGOS: I don't know that this court has jurisdiction. I think that -- I think we're in a situation where the person -- apparently, the chief justice has stepped in and has made the assignment, even though I don't even -- I don't even know that that's a lawful order. I realize he's the chief justice. It's like the 800-pound gorilla. He can do whatever he wants. The fact of the matter is, is that according to the California rules of court, if that's going to be done and the originating jurisdiction is not -- or the judge from the originating jurisdiction is not going with it, the rules of court are very clear. It's not the chief justice who makes the assignment, it's the presiding just of the county where you go.
So I'm not so sure that anybody has complied with any of the applicable statutes, rules of court or case law, at this point. And I don't know who could possibly make a finding of good cause, at this point, to waive time in a death penalty case, when it's my position that we don't even have a judge, at this point, or jurisdiction in any particular court.
(END VIDEO CLIP)
(BEGIN VIDEO CLIP)
GERAGOS: The judge has ordered that we go to Redwood City February 2. On February 2, it'll be determined whether or not Judge Arnason is our judge, whether or not Judge Girolami is our judge or yet a third judge is selected by the chief justice. The specific issue is, is whether or not the prosecution timely filed the challenge to Judge Arnason. And that will be determined a week from Monday.
(END VIDEO CLIP)
KING: Before we get some more calls, Ted Rowlands, you had a comment, something about the civil matter?
ROWLANDS: Yes. There was a status conference today in Modesto. Peterson is the target of three separate attacks from the civil side, coming from the Rocha family. And they had a status conference today. A judge in that case pushed it back 120 days, about four months, about the length of the criminal trial. Presumably, they're going to wait on all of these until the criminal proceedings are over. There's a "Son of Sam" civil case against Peterson, which basically is trying to block him from profiting in any way from this case.
And then you also have an issue with the estate of Laci Peterson. There's a $250,000 insurance pay-out, which has been paid out by the insurance company, according to Adam Stewart, the Rocha family attorney. That is sitting with the county of Modesto in the courts right now. And if Peterson is acquitted, he gets the money. If he is not, then the Rocha family would get it, specifically Sharon Rocha. All the issues are expected to be put on the back burner, however, until the criminal proceedings are over.
KING: Battle Creek, Michigan. Hello.
CALLER: Hi. Yes. Thank you, Larry. Thank you for taking my call.
CALLER: I have three questions, please, and I'll be brief. Nancy, first of all, I think you're an awesome lady. I would like to know, if you were asked to join the prosecution team, would you in either case? And second of all, I'd like to ask Chris Pixley -- I think you're awesome, also. I'd like to know, if you were asked to joined the defense team of either one, would you?
KING: OK. I'm going to make it two questions, dear, because we've got a lot of calls, and we're moving to another subject in a little while. Nancy, would you go on the prosecution team, if asked?
GRACE: No. 1, thank you for the compliment. I would love to try Scott Peterson myself, but you know, my boss over at Court TV might get a little mad, so I probably wouldn't be allowed to.
KING: Chris, would you like to join the defense?
PIXLEY: I think any good defense attorney would be interested in a case like this. Now, I personally have interest in this case, Larry, because this is one that has so much circumstantial evidence against the defendant, but nothing, nothing that convinces me that Scott Peterson is guilty. And quite the contrary, I've been convinced, after having studied the case thoroughly and meeting the family and talking about the specific background...
GRACE: That would be the Peterson family!
PIXLEY: ... of the defendant -- well, that's right, Nancy. And despite all of your comments about your meetings and time with them, most of your time has been spent with Sharon Rocha and the Rocha family. So that's not unusual and not to be unexpected that the two of us have found more time with different sides of the case. But I find Scott Peterson's case very compelling, and that's the kind of thing that draws you, ultimately, to make the decision to defend someone.
KING: All right. Lake Charles, Louisiana. Hello.
CALLER: Hello. Thank you for taking my call, Larry.
CALLER: Nancy, this is for you. My husband and I think you are awesome, and we do not think anybody should ever disagree with you because you make so much sense! But here's my question...
GRACE: Would you tell Larry that?
KING: There would never be a trial, then.
CALLER: How does Geragos have time to take on all these high- profile cases?
GRACE: A good question. I'll tell you how. If you look in any -- a real trial lawyer's filing cabinet, there will be about 100 cases in there. Trying two big cases is not unusual. Lawyers try cases like this all the time, left and right. Send one jury out, strike another. It happens. It just so happens that in these cases, the media are interested, so they're hip to it. But this is not uncommon at all. Geragos will pull it off.
KING: We'll take a break and be back with more about this, and then we'll discuss the Kobe matter. And since Jo-Ellan Dimitrius on that matter will work for the prosecution, we're going to hold her over to just give us that angle. Hey, you never know.
We'll be right back.
KING: Pioneer, California, we're back. Hello.
CALLER: Hello. Nancy Grace, you are absolutely wonderful. This question is for Jo-Ellan. I've seen you on Court TV's "Stakeout," what is your track record for wins and losses.
KING: What's your win or loss record.
DIMITRIUS: That's an interesting question. My job is simply to give recommendations to the trial team. Whether or not they take them is another matter. But I'd have to say that where they have taken my advice that there's a very high success rate.
KING: Would you say you've won 80 percent?
DIMITRIUS: Yes, definitely.
KING: San Mateo, California, hello.
CALLER: Chris Pixley, I think you're absolutely gorgeous, and my question is, when are they going to start the jury selection for the Scott Peterson trial?
PIXLEY: Well, you know, if we get a new judge assigned expeditiously and if this case begins February 2, we'll have a few week's worth of pretrial motions. Everyone remembers all of the brouhaha we went through over the hair evidence in the preliminary hearing. There will be many issues discussed that is slated to take two weeks or longer and after that we'll get into jury selection. I suspect by March we'll be in jury selection and it may not be until April if the trial gets started and that's only if things get moving now.
KING: Cynthia, will you cover that trial in person?
KING: ABC will have to assign you but the betting would be you would?
KING: Ted, is Chris about right on when it's going to start?
ROWLANDS: Yes, the prosecution wanted some time here. Whether or not this little break we have right now will be enough for them to move all of their offices and files to San Mateo, we'll see about that, whether they'll request more time we'll see. If it starts on the second, Chris is right on, they're estimating two weeks of pretrial and jury selection which they estimate will take about four weeks and then four months total for this trial.
KING: Seattle, hello.
CALLER: Thank you. For your panel, sometimes subtle behaviors are contrary. I'm questioning whether or not Scott Peterson, in fact, was shown in pictures prior to Laci's disappearance and immediately after, where he's wearing a wedding band and I notice now he is not. Is there any legal reason for incarcerated individuals not being able to wear one?
GRACE: Yes, that's a very good question. Very rarely do you see incarcerated defendants wearing jewelry. They are not allowed to keep it behind bars. KING: Why?
GRACE: It's often viewed as some type of safety risk. For instance, if a fight ensued and he was wearing a ring he could get hurt, somebody else could get hurt. I also want to point out, after reading the arrest police report where Scott Peterson was arrested, everything was listed they had, the type of shoes, sunglasses, belt, you name it. No wedding band was mentioned at the time of his arrest so I believe he was not wearing it then nor now.
KING: Chris, what does that mean to you?
PIXLEY: Larry, I personally think it's a dangerous business, even though we're all a little guilty of it of trying to divine someone's guilt or innocence by their behavior outside the courtroom or their behavior, quite honestly, in a preliminary hearing if they're not testifying. That's what we're doing when we talk about whether or not Scott Peterson wearing his wedding band four months after his wife has gone missing means he's guilty. We don't know whether or not he wore it on a daily basis or not before she went missing. Until we have that evidence it doesn't mean anything.
KING: Get one more in, to Anderson, Indiana, hello.
CALLER: Thank you.
CALLER: How far is San Mateo from Modesto and is Scott being confined from the other prisoners like before?
ROWLANDS: It's about 60 miles. It takes about an hour and a half, hour 20 minutes to get from Modesto to San Mateo, which would be a bit of a burden for some of the witnesses but not as far as southern California from that standpoint. I didn't hear the second part of that question.
KING: I didn't hear it either.
GRACE: Is he being isolated from the inmates.
ROWLANDS: I still didn't hear that.
KING: Was he isolated from the other inmates? Is he isolated?
ROWLANDS: Oh, is he isolated? Yes, he is. They took great care today to bring him up and they talked about plans they have at this other facility and in fact, in this facility, all of the inmates are isolated, nobody shares a cell. He's just like everybody else.
KING: Thank you. We'll be calling on you as always again. Ted leaves us. Tony Kovaleski in Eagle, Colorado will replace him, the reporter on the scene of the Kobe Bryant case. Everyone else remains and Dr. Robbie Ludwig will be added to the panel. Don't go away.
(COMMERCIAL BREAK) KING: Let's meet our panel to discuss the Kobe Bryant matter. Remaining with us in New York, Cynthia McFadden, senior legal correspondent ABC News. Joining us now from Eagle, Colorado is Tony Kovaleski, the investigative reporter for KMGH-TV in Denver, covering the Bryant case.
In New York, Nancy Grace of Court TV remains and Atlanta defense attorney Chris Pixley remains. We're joined now in New York by Dr. Robi Ludwig, psychotherapist, former rape crisis counselor. She counsels survivors of sexual abuse. We've asked Jo-Ellan Dimitrius to stay because we just learned she wears another hat now. Jo-Ellan is the jury consultant for the prosecution in this case. Tony, what happened today?
TONY KOVALESKI, KMGH-TV: Well, Larry, one clear thing, we are nowhere near the start of this trial, probably several months away. Several key issues decided, several undecided. One of the things we learned today before leaving Colorado, Kobe Bryant did take what is called the defendant's rape kit that included samples of his hair, DNA, blood samples, also pubic hair combings and he also had to measure the size of his palm. Those are pieces of information that will enter the trial later -- Larry.
KING: What don't we know? Do they make a decision on what information about the alleged victim will go to the defense?
KOVALESKI: Her medical history, Larry, was decided or was discussed, rather, behind closed doors. They spent about two hours outside of media scrutiny discussing the issue. The judge did not come out today with any kind of decision. We expect that to come forward probably in written orders sometime next week.
KING: Jo-Ellan, you told us something I didn't know, that the famous Henry Lee and the other doctor, Dr. Michael Bodden both will work for the prosecution?
DIMITRIUS: Well, the prosecution has been talking with both of them.
KING: To testify for them?
KING: Is that significant, Nancy Grace?
GRACE: Yes, very, very significant. And some other things happened in the courtroom today that I also think are significant. No. 1, we all know the hospital mistakenly sent medical records to the defense that they were not supposed to release of this victim's. The judge has ordered both sides that they may not use those medical records.
And also, the judge threw a bone to the defense today and is allowing them to review, to handle, to look at, examine, physical evidence, I'm referring specifically, go ahead and buckle your seat belt, the alleged victim's underwear, they're going to be able to do their own DNA analysis, have their own experts look it.
I don't find it uncommon under the constitution. The defense has a right to test the state's evidence, but that was a big deal for the defense today.
KING: Cynthia, does that this look like a tough pull for the prosecution from where you sit?
MCFADDEN: Well, you know Larry, we saw some of the prosecution's evidence. We saw police witness who took the alleged victim's statement initially in the preliminary hearing. And I got to tell you, he wasn't a very good witness for the prosecution at that preliminary hearing, at least, to my way of thinking. There was a lot of stumbling around. He hadn't been very well prepared. Perhaps he'll be a better witness when we get to trial.
Some of the things that the alleged victim said to that police officer in the first interview are going to hurt, are going to be hard, and the prosecution is going to have to overcome those when this actually gets to trial.
Things like when the police officer says to her, you told me what happened but you never told me that you ever told Kobe Bryant no. And she said, well, when I moved his hand, he stopped. Those are the kinds of statements she subsequently told a different story to the police officer, maybe that's because she remembered it better, maybe it was because initially she was upset, distraught, whatever, but those of the kinds of things prosecutors have to overcome.
This will be a classic he said/she said. There's going to be evidence that you can interpret multiple ways.
KING: Dr. Ludwig, as a psychotherapist what do you think? What should be considered about the alleged victim? Should we know about her medical records? Should we know if she is bipolar? Should we know if there are sue said attempts? Is that important as to whether she was raped or not?
LUDWIG: You can look at it in two ways. If Kobe Bryant were my son, my brother, wouldn't you want that information to come out? You know, if he had a one night stand with somebody who had a clear psychiatric history, that could impact the way this woman perceives that evening, you definitely would want that information coming out.
What's interesting about this case is that there was a short duration of time between her discharge from the hospital and when this incident took place. And for that reason, I think it's significant.
It's very important to know whether upon discharge, was she being treated properly? If she wasn't, she could have actually deteriorated, and with symptoms for bipolar, you can be grandiose, even psychotic.
So that would play a very significant role in how we perceive this woman and actually what happened on that evening.
KING: Joey with your other hat, is this a tough case for the prosecution?
DIMITRIUS: I think it's going to be tough for both sides, because you have a very well-loved individual on one side. You have a sexual crime on the other side. You have an interesting venue, because it is certainly a smaller venue. It's not an urban area at all. And there are lots of different types of people in that venue from the very, very wealthy to people who are not at all well off.
KING: You have an interesting life. You're representing a basketball player, Jayson Williams, in his trial for the defense, representing the prosecution against a great basketball player in Colorado for the offense.
DIMITRIUS: I do have an interesting life.
KING: Interesting life. Nancy, how do you look at this from your view? It's so early stages about this victim.
GRACE: I know one thing for sure. I know one thing for sure. If the rape shield law is chipped away at in Colorado, it hurts me to see what is happening to talk about this victim, every sex victim will then be subjected to cross-examination about, have you ever been to a therapist? Why did you go to a therapist? Have you have shock treatment? Hey, aren't you using Prozac? How about birth control pills?
You open the flood gate and the flood will follow. I see this as totally irrelevant. Kobe Bryant's team is accusing her of being an attention seeker. Accuse me, isn't he the one on TV all the time. Isn't he the one making millions of dollars with fans that adulate him? If anybody's the attention seeker, I don't think it's this 19- year-old girl.
KING: Chris Pixley what's the other side of the coin?
PIXLEY: In one respect Nancy's right. The Colorado Supreme Court in 2002 agreed with her position, they said that this type of information is totally irrelevant. My position is that if she has an ongoing mental health condition that affected her prior to and potentially at the time of the alleged assault, and that could influence her perception of it, then it absolutely is relevant.
You know, mental illness, unlike physical illness doesn't give you a physical temperature or a cough, but it has symptoms all the same and one of the common symptoms, as Dr. Ludwig will point out, is altered perception of reality. So, that's what matter to me.
So, if that's the case, if she had an ongoing condition that could have affected her at the time of the alleged assault and was affecting her prior to that time, then that's a different question and whether the rape shield statute should keep the defense from getting that information is not as black and white as Nancy I think would make it.
KING: Tony, is the defense going to try to change venue? KOVALESKI: You know, that has been talked about a great deal over the past few months. Larry, from what I'm hearing no, because what they have in Colorado, they've done a great deal of polling of individuals, a lot of interviewing of different people here, friends, people who know the alleged victim and from what we're hearing, the defense is satisfied with this venue at this point. That doesn't mean it won't change down the road. but at this point, we're hearing this is full steam ahead in Eagle, Colorado.
DIMITRIUS: Well, I do know the defense has been doing a lot of polling. They've using an individual out of Boulder and there have been a lot of people in Eagle County that have talked to the media about the fact that they've received those phone calls.
So you know, clearly that's done well before the trial to determine the predisposition of people. And generally, you not only look in Eagle County, but you would look to other areas that perhaps a trial might be changed to.
KING: Dr. Ludwig, does Nancy have a point, that anything -- the problem with this girl, has anything to do with whether she was raped or not?
LUDWIG: Well, she does have a point in the sense that, whenever you're looking at something legally you have to say, hey, how does this affect the greater good of everybody? If she had a psychiatric history that was treated in the past and it wasn't relevant to what was going on on that given night, I think she has a point.
And then again, do we look at the defendant's psychiatric history. How far do we go? Again, where it is unusual, it seems to have impacted her on that given night. You know, bipolar disorder is a mood disorder. If she was manic that can make somebody hypersexual. Very often they engage in impulsive behavior, pleasurable behavior that could be dangerous and after the fact, if she's feeling depressed, she can then feel guilty and want to take back what she initially did.
So there are a lot of different factors that can influence how to look at this case and it requires a wise judge who knows how to balance this information.
KING: We'll take a break and come back and include some phone calls on this extraordinary matter. Don't go away.
(BEGIN VIDEO CLIP)
KIM ANDREE, "EAGLE COUNTY SHERIFF'S OFFICE": From this day forward the arrival and departure of the victim and her family, Mr. Bryant and his defense team will no longer be a matter of public record. The lack of regularity and scheduled departures and arrivals will only serve as continued safety for those involved in this case.
(END VIDEO CLIP) (COMMERCIAL BREAK)
KING: We're back. Before we take some calls, Cynthia McFadden wanted to clear something up. Cynthia?
MCFADDEN: Larry, I just think we're confusing two things here. It's perfectly true that there are rape shield laws designed to protect alleged victims from having their sexual history exposed, and those laws are active all across the country and an important -- and part of that is being chipped away here. The defense has tried to challenge the constitutionality of the rape shield law in Colorado. I don't think that's going to be successful.
But this young woman's, the alleged victim's mental health history is something separate from this. The defense is making an additional argument that her particular mental health is relevant for their defense in this case, because they say she has a pattern that they feel is crucial to be able to expose. Furthermore, and I think we ought to get the doctor's thoughts about this, because what they're saying is, it may have, what she was taking for medication may have altered her perception, or in fact, give us some window into what happened that night. Now, they may be wrong about all of this, but this is a different issue than the rape shield laws, I think.
KING: This is apples and oranges. Dr. Ludwig?
LUDWIG: Yes, also, if she wasn't taking the medication she should have been taking she could have decompensated and become psychotic and manic and self-destructive. If she wasn't in treatment post-hospitalization, I think that's really important to the case. Because she could have been in a worse state than she was when she was in the hospital.
GRACE: You know, Larry...
KING: San Mateo -- yeah, I'm sorry, Nancy, go ahead.
GRACE: We are speculating on this woman's mental health.
GRACE: And I understand the defense -- it's fair game for them to cross-examine her. But we're not sure -- that what we do know is that her blood is on Kobe Bryant's shirt after the incident.
KING: That's a fact?
GRACE: We know that forensic evidence. So we can go on and on about her depression, her bipolar. But somebody explain to me what that has to do with her blood from that sex incident being on his shirt. And I'll be happy.
LUDWIG: Well, I can speak to that.
KING: Chris Pixley, you want -- all right. LUDWIG: You know, first of all, it was kind of basically a one- night stand, two strangers. You know, let's say it was just rough sex. She didn't say no. He kept going. He didn't know how to interpret the signs. I mean, I am not defending him, but I'm just saying there are lots of reasons why there could have been blood.
PIXLEY: And let's remember, Larry, why he was in Eagle, Colorado in the first place. He was having surgery on his knee the next day. What does he do the day after the alleged assault? He goes forward with his surgery. He not only goes forward with the surgery, he comes back to the hotel that evening, has dinner at the hotel, reportedly according to the hotel employees, plays chess in the lobby of the hotel with friends, stays over until the next day. I mean, not the behavior of someone who has committed a crime of this magnitude.
KING: Jo-Ellan, is there other things, without getting into it, that we don't know that will come out of this trial from the prosecution's standpoint?
DIMITRIUS: Of course. At the preliminary hearing the prosecution puts on the bare minimum of what they have to.
KING: You know more than we know, then?
DIMITRIUS: I think that's fair to say. Absolutely.
KING: San Mateo, California, hello.
CALLER: Hi, everybody. Nancy Grace, you are my heroine and you are my early birthday present of next week by me being on here to ask you this question. I love you to pieces. I as a rape victim a very long time ago in a bus station -- I wasn't on pills, I wasn't mentally ill. How can a defendant be so protected inasmuch as his prior criminal record is prejudicial coming into court, but a woman, who -- her history is just all over the planet, all over the place, and you know what? And you know the reason why I never told anybody I was raped so long ago? Because I knew something like this would happen. So thank you for everything you do for us.
KING: Do a lot of victims not come forward, Nancy? You think?
GRACE: Oh, Larry, this and child abuse are the two most underreported crimes on the law books, and the lady that just called in is a perfect example. Women have already been through enough during the rape, and then they get raped again. I'm not being dramatic. I mean it. Larry, if you could see the way rape victims are cross-examined on the stand, it's horrific. And I'm surprised the girl is even going forward with this, to tell you the truth. And she's in seclusion, I understand.
KING: Tony, is she in seclusion, Tony?
KOVALESKI: Well, we've heard reports, Larry, over the past few days that she's actually back here in Eagle, Colorado and she has been out with friends and out at events, so again, from people around here, the seclusion is not actually what we're hearing. But she has made public appearances with friends, at events, and at parties, and we've also heard she may actually be wearing a wig at some of those events. So it depends upon who you're talking to.
KING: How far away, Tony, is this trial?
KOVALESKI: Go ahead. Well, we learned today in the courtroom, Larry, that it's definitely at least into May and we're looking probably well beyond that, because they've scheduled events, DNA testing coming back, and an opportunity to review it that will take us at least through the first week of May before they start jury selection.
So yeah, I would say right now we're still several, several months away from trial.
KING: You agree, Jo-Ellan?
DIMITRIUS: I'd say it's probably going to be more likely July.
KING: July. So he'll finish the NBA season.
KING: He's injured now, but he'll -- thank you all very much. We'll be doing lots more on this, of course, in the nights ahead. Cynthia McFadden, Tony Kovaleski, Nancy Grace, Chris Pixley and Dr. Robi Ludwig and Jo-Ellan Dimitrius. The first half of the show, she's for the defense, the second half of the show she's for the prosecution. She has no middle ground.
And I'll be back in a minute to tell you about tomorrow night. Don't go away.
KING: Tomorrow night on LARRY KING LIVE, two pretty good actors. Nicole Kidman and Edward Norton. Tomorrow night on LARRY KING LIVE.
Right now it's Aaron Brown time, "NEWSNIGHT" in New York. And get your glasses ready, it's 3-D night.
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