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CNN LARRY KING LIVE

Legal Analysis of Scott Peterson Murder Trial Developments

Aired March 22, 2004 - 21:00   ET

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


LARRY KING, HOST: Tonight: Scott Peterson back in court, with jury selection under way for his upcoming double murder trial. Who's going to decide his fate? His judge has set a May 17 date for opening statements and rules that TV interviews Scott did early in the investigation are admissible as evidence. How big a blow will that be to his defense? Scott's lawyer, Mark Geragos, refuses to submit a witness list for the penalty phase. Could that help his defense?
Here with the latest news -- and we're sure some heated debate -- on all that and more, CNN's Ted Rowlands, on this story from day one and inside the courtroom today; Court TV's Nancy Grace, the former prosecutor; high-profile defense attorney Chris Pixley; plus Chuck Smith, former prosecutor for San Mateo County, where Scott Peterson's trial is being held; and also inside the courtroom today, Michael Cardoza, one of the top defense attorneys in that area. And they're all next on LARRY KING LIVE.

A couple of quick notes. Richard Clarke, the long-time security adviser to four administrations, who's much in the news today after his appearance on "60 Minutes" last night, will testify before the Washington congressional committee looking into the events of 9/11 on Wednesday night. On Wednesday night, he'll be on this program. Richard Clarke on LARRY KING LIVE Wednesday night, following his testimony. And tomorrow night, Tanya Tucker.

Let's get right into the events of the day in the Peterson matter. Ted Rowlands in Redwood City, what happened?

TED ROWLANDS, CNN CORRESPONDENT: Well, as you mentioned, to start things off today, the judge ruled against the defense in their motion to exclude the statements that Peterson made to the media in the days and weeks after his wife's disappearance. The judge sided with the prosecution and will allow those statements to be used against Peterson, once this trial gets under way.

Then the judge set out a timetable. And as you mentioned, as well, at the top, it's not going to be until May 17 until opening arguments. And the reason for that is the tedious process of jury selection. The second phase, which started today, 13 potential jurors went through the gauntlet in different forms today to see if they would be seated as potential jurors. Just one of them survived, an environmental engineer from the San Jose area. The rest were all let go for different reasons -- hardships, including work. Another woman said that she thought Peterson was guilty. A man said Peterson was guilty. Another woman said she was against the death penalty.

Afterwards, Geragos came out and indicated that he will wait and see how this week goes and then may file another change a venue motion or ask for some sort of relief from the court. He has indicated that he believes the jury pool here is tainted and the defense deserves some type of relief. And they'll be back it again tomorrow with this jury selection process.

KING: And also, Ted, we understand that they asked Geragos to present a list of witnesses for the penalty phase and he refused, right?

ROWLANDS: Yes, apparently. I was not in court during that portion of the proceedings today. But apparently, he refused. It's unclear on what basis he did that. But I'm sure that that will be haggled out during this week. Typically, before they bring in the first juror during this process, they handle any housekeeping matters at hand.

KING: What he said was he wouldn't release it because there never will be a penalty phase, his client will be found innocent.

Before we ask the panel about including those interviews, let's show an example of what might be included at the trial, an interview that could be used, Diane Sawyer's talk with Scott in November. We'll look at that clip.

(BEGIN VIDEO CLIP)

DIANE SAWYER, ABC NEWS: Did your wife find out about it?

SCOTT PETERSON: I told my wife.

SAWYER: When?

PETERSON: In early December.

SAWYER: Did it cause a rupture in the marriage?

PETERSON: It was not a positive, obviously. It's, you know, inappropriate. But it was not something we weren't dealing with.

SAWYER: A lot of arguing?

PETERSON: No. No. You know, I can't say that -- that even, you know, she was OK with the idea, but it wasn't anything that would break us apart.

SAWYER: There wasn't a lot of anger?

PETERSON: No.

(END VIDEO CLIP)

KING: Nancy Grace, if Peterson doesn't take the stand, how can this be included in the testimony? How can this be in evidence?

NANCY GRACE, COURT TV: Well, very simply stated, because the defendant himself made these statements, not under any coercion -- nobody forced him to give these statements -- it's not a situation where he's protected by the Constitution, such as not getting his Miranda rights or being beaten with a phone book until he confessed. Nobody made him speak to Diane Sawyer, Larry. And the reality is, the Constitution protects a defendant under certain circumstances, when they are being interviewed by the state, like cops. But the Founding Fathers never said anything about yakking to Diane Sawyer. So the Constitution is not going to protect him.

And I do believe firmly that this statement and the other three that will be allowed, including one to Ted Rowlands, will be devastating. Why? If you take apart these statements, Larry -- for instance the one he gave to Diane Sawyer, in it, he describes how he can't even bear to go in Conner, his unborn son's nursery, that it breaks his heart so much. But we learned at the preliminary hearing, when the cops did a search warrant at his house at 523 Covina Avenue, Larry, the nursery had been turned into a storage room! It was full of boxes, all right? So little inconsistencies like that, his lying regarding Amber and his lies to the police that came out in the Sawyer interview, will damage his credibility.

KING: Chris Pixley, why does lying about an affair have to do with a murder case?

CHRIS PIXLEY, DEFENSE ATTORNEY: Yes. Exactly. And you don't know that jurors are necessarily going to put the two together and see that there's any significance between them. You know, ultimately, this decision to allow these interviews in -- I don't disagree with Nancy and I wouldn't dismiss it as insignificant, but it's hard to predict how the jury's going to handle that and how significant it's going to be to them he has lied about an extramarital relationship.

And remember, even if Scott Peterson's interviews with the media hadn't been allowed in, the had judge already made a decision recently that he was going to allow wiretapped conversations between Scott Peterson and Amber Frey into evidence, which means one way or the other, Scott Peterson was going to be testifying at this trial, in one form or another, even if he didn't take the stand. You know, ultimately, I think it hurts Scott Peterson's case that the interviews will be allowed into evidence, but I don't think it substantially strengthens the prosecution's case because, Larry, it doesn't help to tell how when, where or why Laci Peterson was killed.

KING: Something nobody knows. Chuck Smith, what do you make of the ruling by the judge?

CHUCK SMITH, FORMER SAN MATEO COUNTY PROSECUTOR: Well, I think, first of all, that the fact he lied about his affair is going to hurt him. It makes it more likely that he committed the crime. I mean, very simply, someone who cheats on his wife is more likely to do away with his wife than someone who enjoys a faithful, loving relationship with his wife. So I think that's going to hurt him. And those statements, when they're played to the jury, the inconsistencies, the lies -- they are going to be part of a large amount of circumstantial evidence which points to his guilt of these murders.

KING: And Michael Cardoza, what's your read on it? MICHAEL CARDOZA, S.F.-AREA DEFENSE ATTORNEY: Well, I'll tell you, I couldn't disagree with Chuck more. No. 1, the judge is letting these statements in not for the truth of the matter but for the state of mind of Scott Peterson, which makes it circumstantial evidence.

Now, Mark Geragos was doing something really good today in court. I mean, he was using all his trial skills. He was talking to the juror that he voir dired today, that he questioned, about circumstantial evidence and that one jury instruction that says if it's susceptible of two reasonable interpretations, one to guilt, one to innocence, you've got to go with the one that goes to innocence. He has started to condition this jury already.

As for the bedroom, I'm sure Scott, if he testifies, is going to have a very reasonable explanation for that, and that's the one that's going to point to innocence and that's...

GRACE: This is not -- not practical.

CARDOZA: ... the one the jury has to go with.

GRACE: That's not practical, Larry!

CARDOZA: Yes, it's very practical, Nancy.

GRACE: You know why it's not practical?

CARDOZA: Very practical.

GRACE: You think this jury is going to know why the statements came in? As you said, the judge stated -- Judge Delucchi, Larry, stated that they were going to come in to show the state of his mind and to show consciousness of guilt. You think the jury is going to go read the criminal penal code and find out why these statements are coming in? No! They're going to hear these statements, find out. And Larry, that's an excellent question. What does it matter if he lied about an affair? It matters, Larry, because he was lying to police the night his wife went missing. It became a homicide investigation. That made it much more important.

PIXLEY: And Larry...

CARDOZA: Nancy, there you go again. No. That's absolutely not what they're going to look at. If Scott takes the stand, you know he's going to have reasonable explanations. And you know Geragos. He's an excellent trial attorney. He will argue away those affairs. And I'm sure if he has others in the past, heck, I'd bring them in and show that Scott cheated before, to say he didn't kill before. It's not a reason that he killed.

KING: All right, let me get...

CARDOZA: And if this is the motive they're going to use, they're wrong.

KING: Let me get a break. We'll come back with more. We'll be including your phone calls. The fascinating Scott Peterson case goes on.

Don't forget, Richard Clarke Wednesday night, following his testimony. Tanya Tucker tomorrow. We'll be right back.

(BEGIN VIDEO CLIP)

MARK GERAGOS, SCOTT PETERSON'S DEFENSE ATTORNEY: What we've decided to do, obviously, is to go through the jury selection to make a record. And that's what we did today. I wanted to correct what I said in court. I think I said in court that it was 1 out of 12 jurors we saved today. And in actuality, in going back over my notes, it was 1 out of 13 jurors that were saved today. So we will continue through this, obviously, through the rest of the week, and then we'll -- I'll take the appropriate action after I've got a week's worth of information at my disposal.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

GERAGOS: The judge has already ruled that it's his interpretation of the law that if somebody is opposed to the death penalty, that therefore, they're not qualified to sit on this jury even in the guilt phase. So I'm not going to reiterate that argument every time he excuses somebody. I will submit on his previous ruling. And what I've indicated to him is, obviously, I disagree with it, and that's one of the reasons that we made the argument for separate juries. I think that -- I can't say what I believe. Those of you who were in the courtroom today can judge for yourselves. Thank you.

(END VIDEO CLIP)

KING: Ted Rowlands, which part of your -- or one of your interviews will be introduced?

ROWLANDS: Well, it's unclear. The prosecution has just mentioned that they're going to use a segment of it and a segment of the other interviews. But what they'll actually put in front of the jury, I'm sure they'll decide in the last minutes before they do it, depending on where the case is going and how they're doing on it. I think that they just want to cover all their bases and be allowed to use what they desire to use, and this ruling today helped them at least keep it open to basically use whatever they want, which was aired. None of the stuff that wasn't actually aired can be used because they haven't been given that material. But what was aired is all fair game.

KING: Chris Pixley, if innocence is presumed, how can you ask someone to give you a list of who's going to testify in the penalty phase?

PIXLEY: Well, there's a "may call" list and there's a "will call" list, and you've got to be able to present those witnesses, Larry, if for no other reason because the jury has to be qualified as to them. There can be implied bias. For example, if one of the potential jurors actually knows a witness that the defense is going to present during the penalty phase, if the defense is allowed to go without presenting that list and they ultimately get to the penalty phase, well, it's a little too late now to be dismissing a juror.

KING: So why -- Geragos can refuse the judge?

PIXLEY: Well, Geragos can refuse the judge if he wants to lose his license. Ultimately, he can't refuse the judge. I mean, this is good old-fashioned grandstanding. You know, he's got an ethical obligation to his client to protect his client's interests. That means not only during the guilt phase but for the penalty phase, as well. Geragos ultimately will have to back down. I think he made a public statement today, My client's innocent.

And he gave another rationale, too, which was simply, Look, I'm going to be requesting two juries here, one for the penalty phase and one for the guilt phase. He's already made that request. He hasn't filed a motion for reconsideration, and for that matter, presenting that list doesn't preclude him from filing that motion. So this was more for our ears, for the public's ears, than for anything else.

KING: Let's play reverse a little. Nancy, what's the biggest problem the prosecution faces in this case?

GRACE: The biggest problem the prosecution has is there is no DNA evidence. I think that if it existed, we would have heard about it at the preliminary hearing or it would have been leaked by somebody, somewhere, somehow. Don't have it yet. We have the hair belonging, we believe, to Laci Peterson, found entwined in a pair of needle-nosed pliers on Scott Peterson's boat, the boat she had never been on. The defense can argue a transference. In other words, her hair fell on the pliers in the home, and the pliers went to the boat. Do I buy it? No. But a good argument. That's their biggest problem.

But Larry, I just wanted to respond to that question regarding what Geragos did in court today. If the state, the prosecution, had stood up and said, Judge Delucchi, I'm not handing over any witnesses, to heck with you, basically thumbing their nose at the judge, how fast do you think they would have been held up to ridicule and in contempt? Now, what Geragos is threatening here is to get the judge on his bad side, and when you thumb your nose at the judge -- hey, the jury's not even struck...

(CROSSTALK)

KING: Why would he want that?

GRACE: ... to grandstand now! He has refused to follow the judge's order. And the judge said, OK, fine, Geragos. You don't submit...

CARDOZA: Nancy, no!

GRACE: ... the witnesses, you cannot bring them into evidence.

KING: Michael?

GRACE: And that is the penalty.

CARDOZA: I tell you what. It was brilliant move by Geragos today, telling the judge, No, I'm not going to give you those witnesses because we're not going to get to the penalty phase. We're talking about it tonight. You know someone on the jury's going to hear it. You know that this is what Geragos is doing. And I respectfully disagree with Chris. It's not grandstanding. This is a good trial attorney at work in this case.

GRACE: That's what grandstanding is!

CARDOZA: No, Nancy. No.

GRACE: Yes, it is!

CARDOZA: It's good. And he has -- remember, Nancy, there's a long way to go before this jury will be impaneled.

GRACE: The judge said no!

CARDOZA: Once they've got it...

GRACE: I wouldn't want Delucchi mad at me!

CARDOZA: ... he can submit that list.

KING: One at a time!

SMITH: Let me jump in here. I agree it was grandstanding. But Larry, your question about what's the most difficult part of this case for the prosecution -- the most difficult part is what Chris Pixley commented on, in terms of how the prosecution may not be able to explain specifically how they were killed, specifically when. Those are difficult obstacles, but they can be overcome. Circumstantial evidence, most prosecutors will tell you, is better than direct evidence. Direct evidence is generally eyewitness testimony, which can be fallible. Good circumstantial evidence -- a chain of events, circumstances which cannot be explained innocently -- once they mount up and once they build, like building blocks, they can prove a defendant's guilt without those specific questions of specifically how, specifically when. And that's what this case is going to be, a circumstantial evidence-based case, and people are convicted every day based upon circumstantial evidence.

KING: Chuck Smith, aren't most cases circumstantial?

SMITH: Absolutely. Most cases are circumstantial evidence cases. Fingerprint evidence is circumstantial evidence.

KING: Right.

SMITH: DNA evidence is circumstantial evidence. Most cases are circumstantial evidence case, and overwhelmingly, people are convicted by prosecutors when they go to trial. CARDOZA: Larry?

KING: Yes, Chris? Or Michael. Who...

CARDOZA: It's Michael. Remember, everything -- if you assume Scott Peterson did everything he's accused of, how do you know what was in his mind when this homicide happened? Did he kill her with malice aforethought, willfully, deliberately? There will be no circumstantial evidence that shows that. And everything he did -- if you believe it that he disposed of the body up at the Berkeley marina, it doesn't mean he couldn't have gotten in a fight with her...

GRACE: No!

CARDOZA: ... and struck her.

GRACE: Well, then explain...

CARDOZA: They won't be able to prove that.

GRACE: ... one thing, Michael. Explain one thing. Why, if the prosecutors are accurate in what they have presented so far -- why was he buying a boat, keeping it secretly hidden at his warehouse, not telling his family, her family or her about the boat? Why was the maiden voyage the day his wife went missing and was found where he took the boat? And why did he go on line and look up waterways in his area, and then miraculously go fishing at one of those waterways where his wife's dead body was found?

CARDOZA: Nancy, that's one of those...

GRACE: Sounds like premeditation to me!

CARDOZA: Nancy, that's one of those...

GRACE: No, that's four...

(CROSSTALK)

KING: If you're going to keep interrupting, I'm going to take another break. Please let everybody finish their sentence. That's rude.

We'll be back right after this.

(BEGIN VIDEO CLIP)

GERAGOS: Everybody who we are dealing with now have all been cleared through the questionnaire. That's what we're dealing with. The pool of people that are here, that are scheduled through now through the first week of May, are all people who were culled out of the questionnaire.

(END VIDEO CLIP)

(COMMERCIAL BREAK) KING: Chris Pixley, I asked Nancy Grace the toughest problem the prosecution faces. What's the toughest problem the defense faces?

PIXLEY: I've always thought, Larry, it's probably the fact, first of all, that the bodies washed up in the same spot that Scott Peterson places him on the day of Laci's disappearance. And also I think the widower comment. It's one that you don't really explain away. There isn't a way of getting around it, and all you ultimately can say on the defense side is, Well, you know, people will talk.

Those two pieces of evidence, when you talk about circumstantial evidence being damning, are the most damning. And what the defense has to go back to, as Chuck said, is the fact that while there is circumstantial evidence, and in fact, really, a mountain of strange behavior, there isn't anything that ties Scott Peterson physically to Laci Peterson's death, and there's nothing even explaining again her cause of death. But for the defense, it's these really bad facts surrounding his relationship and where the bodies ended up.

KING: And Nancy, is that what you would focus on as a prosecutor?

GRACE: Larry, I would get -- I would go high-tech and get some poster board and list out all the circumstantial evidence that is mounting and mounting and mounting against Peterson. His timeline has been disproven through the process of triangulation. In other words, now cops can pinpoint where you are when you make a cell call. He places himself -- we learned this at the prelim. This is sworn testimony. He places himself in the neighborhood when she is abducted, essentially. The timeline's off. The circumstantial evidence is overwhelming. Yes, that's what I would focus on.

KING: Chris, what about -- you prosecuted in San Mateo County. What about generally juries there?

PIXLEY: Are you asking Chuck or me, Larry?

KING: Oh, I'm sorry. Chuck.

SMITH: Yes. No. Thanks. Well, I did, and I had 30 murder trials here in San Mateo County, and I've been in the county for almost 30 years now. And the jurors here -- this is an intelligent community. It's a fair community. It's a very diverse community, much more than people think. But they are the kind of intelligent, analytical, careful people that I think the prosecution wants and the prosecution should do very well with.

KING: How did you do with yours?

SMITH: I did 28-2.

KING: Michael, what's...

SMITH: I had a good career.

KING: Michael, what's your read on San Mateo? CARDOZA: Well, I'll tell you, I tried a jury trial down here about two years ago, and I got a not guilty verdict down here. I agree with Chuck -- intelligent, analytical people. And I think that's exactly what Geragos is looking for in this particular case because of the circumstantial evidence. You want people that think, can see both sides of the issue. And because of that, because of that jury instruction, they'll be going to the not guilty side here.

KING: Ted Rowlands, why May 17?

ROWLANDS: Well, because it is expected to take that long to seat the 80 potential jurors that the judge is looking for in this case. They're going to have one more segment of the jury selection, and they're hoping to do that on May 13. And that they call the "big spin." And what happens there is they take all the potential jurors, the ones that have qualified, and they just bring them up and both sides will be able to use their preemptive challenges.

They want 80 of them because the judge even indicated in court today that the defense may end up with a few extra as compensation for this quote, "tainted jury pool," which Geragos has already intimated that he is going to file a motion to either move this out of the county or get some sort of compensation.

You had 13 people coming through today in varying forms, and only one ended up being a potential juror. They need 79 more of those folks, so it's going to take a long time to build that chest of 80 potential jurors.

KING: Is the essence, Nancy, nobody can serve on a jury with a predeposed opinion -- predisposed opinion?

GRACE: No, not really. If they come into the -- the judge isn't looking for anybody and -- and this judge has struck a lot of death penalty cases. He's not looking for someone that doesn't know anything about the case. Who would want someone on the jury anyway that's been living under a rock for the past year? So everybody's going to come into the courtroom having heard something about this case. But the judge can even rehabilitate, as we call it in the law, a juror that says, yes, I made up my mind already, by saying, Well, aren't you a fair person? Can you keep your mind open? Don't you want to know the truth?

So basically, we're not talking about 12 jurors, we're talking about 18. Delucchi wants 12 plus 6 alternates. So out of 80, you're picking about 20. So you're picking one fourth of that jury pool, essentially. I think he will give Geragos additional strikes, and that's not unusual. When I tried murder cases, the state had 10 and the defense had 20. So that's not unusual, depending on the jurisdiction.

KING: We'll take a break and come back and start to include your phone calls.

Don't forget, tomorrow night Tanya Tucker, and on Wednesday night, Richard Clarke. On Wednesday afternoon at 2:00 o'clock Eastern, he testifies before the congressional committee looking into the events of 9/11. Wednesday night, he'll be on this program.

And we'll be back with your calls. Don't go away.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: You want to at least say something about the support you received? Can you (UNINTELLIGIBLE)

PETERSON: (UNINTELLIGIBLE) safe and back. What else is there to say? I mean (UNINTELLIGIBLE) we hope that she's not going through anything terrible.

UNIDENTIFIED FEMALE: How are you holding up personally?

(CROSSTALK)

UNIDENTIFIED MALE: Why don't you answer some questions?

(CROSSTALK)

UNIDENTIFIED FEMALE: How are you doing personally? How are you holding up (UNINTELLIGIBLE)

(CROSSTALK)

(END VIDEO CLIP)

KING: Welcome back to LARRY KING LIVE. Let's reintroduce our panel and go your phone calls. In Redwood City, California, Ted Rowlands of CNN, he's been covering this case since day one. Did one of the few on-camera interviews with Scott. In Atlanta, Nancy Grace, anchor of Court TV and former prosecutor back home tonight. Chris Pixley is also in Atlanta, where he resides and is a famous defense attorney. In Redwood City, California, Chuck Smith, former San Mateo county prosecutor, including six years as a homicide prosecutor now in private practice. And also in Redwood City, Michael Cardoza, defense attorney also a former prosecutor who, by the way, was in the court today. Let's go to calls. New York City, hello.

CALLER: My question is for...

KING: Are you there New York?

CALLER: My question is for anyone on the panel who might know the answer regarding the autopsy report. Has cause of death been determined? And if so, what is it?

KING: Nancy, I don't think it has, has it?

GRACE: No, it has not. You asked earlier, Larry, what will be one of the worst stumbling blocks for the state. It would help the state if they knew C.O.D., cause of death but they do not neither on Laci nor the baby.

KING: No. 3, Tallahassee, Florida, hello.

CALLER: Larry, you're my No. 1 hero.

KING: Thank you.

CALLER: My question is for Chris Pixley. As a defense attorney, how do you handle damaging evidence leaking into the public about a client?

PIXLEY: I'm sorry. Without a client.

KING: How do you handle damaging, at least in the public, for your client?

PIXLEY: It's one of the things we talked about early on in this case. The gag order was issued after Mark Geragos was on this case for a matter of weeks. The prosecution of course, or the state, through the police investigators had been leaking evidence and leaking stories for quite some time now. We've differed, I and the prosecutors and I and Nancy have differed strongly about whether or not the state did anything wrong. The fact is, you get one side of the story out. Then, as a defense attorney, you spend all your time undoing it.

I think Mark Geragos has done what he could in this situation. That is, when he is gagged to make some very public statements in court. That's why I say today that it is grandstanding when Mark Geragos says to the judge, I am not going to turn over my witness list for the penalty phase, my client is innocent. There will be no penalty phase because he will be found innocent. That's what you have to and there's really nothing else you can do. If there is no gag order, you have to get out there. This is the 21st century, whether you think it's crass or not, you have to get out there in the public eye and do damage control.

KING: Ted Rowlands, do you at all think the media has been guilty of overcoverage of this?

ROWLANDS: Yes, I think so. It's tough question for media outlets, getting a lot of response from viewers or readers. They have a pulse on their reader and viewership. They realize that this story, for whatever reason, we've gone over and over it why it is so attractive to people. Believe me, the media outlets know it's attractive to people and people are absorbing it. For that reason, they're broadcasting it at any opportunity. One little change in the case, and, boom, you're doing full-blown stories on it. Is it overdone? I guess you could argue yes. On the other hand, the folks that run these corporations know this is what people want to, at least a segment of their viewers and readerships want to see.

KING: It is what it is. Youngstown, Ohio.

CALLER: My question is for the panel. I want to know if they think Scott Peterson will take the stand and if he does, how will it affect the trial?

KING: Chuck Smith. SMITH: You know, Mike commented on this in a way a moment ago. If he does take the stand, the story he will tell is, this was an accident. We had an argument over my affair, I struck her, she fell, he will try to talk himself into a voluntary manslaughter, which is much less penalty, obviously. You know, if the position of the defense is going to be, he did not do this, he did not commit this crime, I do not think he will take the stand.

KING: Michael Cardoza, what do you think?

CARDOZA: It's a tough decision. What Geragos has to wait for is all the prosecution evidence to come in before he makes that decision. You can bet right now and before that they have defense attorneys coming in and cross-examming Mr. Peterson to see how he will hold up under cross-examination. That coupled with the way the evidence comes in will dictate to Geragos whether he takes the stand or not.

KING: Nancy?

GRACE: No way. No way will Scott Peterson take the stand. There's too many damaging points on cross-examination as it is. Once he takes the stand and paints himself as a good guy, then the state can bring in other bad evidence against him if it exists. We also see exactly where the defense is headed. No way do I agree with Chuck on this one they would ever say, hey, I got mad at Laci and struck her and it killed her. Not going to happen unless Scott's a member of a satanic cult, because if I'm correct that's the last person Geragos blamed Laci's death on.

KING: Chris Pixley, what do you think?

PIXLEY: I have to agree with Michael Cardoza on this. The fact is first of all, they're prepping Scott for it right now. You have to do that. If you wait until the night before you're just dead. We talked about this before. The only time you put your defendant on the stand is if it's an absolute necessity. You can't get an acquittal without it. That's something you ultimately won't decide until the prosecution has rested its case. If Scott Peterson were to be put on the stand, it's going to be major news in this case, because as Nancy explained, there is so much bad character evidence that can be brought out against him.

For that reason alone, and because I don't think he's done very well in the past. Right or wrong, he's a private man. There's no crime in being somebody who's not media savvy. In the past he hasn't done well in front of the cameras, wouldn't necessarily unless Mark Geragos and his defense team knows something we don't, won't necessarily do well on the stand with all the evidence against him, I don't expect it.

KING: Ted Rowlands, you're the only one here who knows him. What do you think? Do you think he'll take the stand?

ROWLANDS: Today in court, Geragos asked one of the potential jurors what he would think if Peterson did take the stand or didn't. Geragos and the folks with the defense team have not indicated one way or another. It's tough to fathom him taking the stand given all the arguments that have already been laid out here. But one argument to put him up on the stand is that he does have an excuse for pretty much every little piece of evidence against him and his behavior.

During this -- as this proceeded he would do something odd, either his family or someone from the defense team would say, you know, here's the real reason why he did that. As you went along, he has a specific explanation for pretty much every one of these things that don't make sense. For the boat, he says he did bring Laci to the warehouse and she did see the boat and she knew about it. It's tough to get that in unless he takes the stand. So I think they'll play it by ear.

KING: Cleveland, Ohio. Hello.

CALLER: My question is for Ted Rowlands. I was wondering, has Scott or Mark Geragos or the police ever said why Scott had his brother's identification when he was arrested at the Mexican border, and would they put him on the stand to explain that?

ROWLANDS: They may. He was arrested in San Diego. It wasn't technically the Mexican border. San Diego, obviously is in southern California. The reason he had his brother's ID, according to family members is because he wanted to take advantage of a resident discount which is offered at Torrey Pines (ph) golf course where he was on his way to go play golf. It has been established that they did have a tee time to play golf there. From that standpoint it would make sense he would have his brother's ID if he wanted to save some money on his greens fees.

KING: Philadelphia, hello.

CALLER: Hi. Ultimately, what type of juror, male or female, white or minority do you think the defense will try to choose in order to be successful.

KING: Michael, what would you want?

CARDOZO: You want that male. I don't think you want the female on a jury like this because of the adultery that allegedly took place or did take place. You want someone that's analytical that can look at the evidence as I said before, can look at both sides of the evidence and go with that one jury instruction. In a case like this, you're looking at a lot of government employees because of the time it's going to take, you're looking at retired people. You don't want somebody too conservative but you do want the intelligent jury for the defense.

KING: Nancy, what does the prosecution want?

GRACE: You know, what, Larry, if I striking a jury in this case, I'd strike it the same way I struck every single jury I ever did. I would pick people that I had a vibe with, I had a connection to. I don't think with this amount of circumstantial evidence it will matter if you're a man or woman. I'm imagining my father or my brother on this jury, how they would have felt protective toward Laci. Men would be a good choice, women would be a good choice. They don't like the aspect of adultery when the wife's at home pregnant. I don't think there is any jury that could be bad for the state unless you got jurors that dislike the government, that would dislike the prosecutors and doubt the police. And one other thing the earlier caller said regarding Mexican border, from where he was, he could see over to Mexico, San Diego is right at the Mexican border. Also, if you were going to play golf that Day, Larry, as it came out at the preliminary hearing, this is sworn testimony, he had tons of survival gear, tons of clothing, $10,000 cash, and interestingly no golf clubs on his way to play golf that day.

KING: Chris Pixley, what do you want for a defense jury?

PIXLEY: It's interesting, there's so much disagreement on this, Larry. There's really never a way to psych out your jury ahead of time. I've heard a prosecutor and defense attorney each say they'd like to have men on the jury. As a defense attorney, obviously in this case, there's some general rules. I wouldn't want jurors that had religious values that were so strong that the adultery issue would stick with them and carry over into every other issue. I do agree with Michael Cardoza about analytical jurors. As I would put it, I want curious jurors. I want those who are not so passive they will allow the prosecution to lay out the case for them and make up their mind before the defense ever stepped to the podium. And that's something that could happen very easily in this case

KING: Chuck Smith, what do you want?

SMITH: What what's interesting, first, as a prosecutor, I want people who have a stake in the community. You know, business owners, people with children in school in the community, people who have solid ties and care about the orderly running of our society and community and don't want people who commit murder here. What's interesting in this county is, what the wildcard, in my opinion is, one of the many wild cards. We have a very large Asian population and large Filipino population. And I'm sure they have many people from those ethnic backgrounds in the pool. It's so difficult to try to predict how people from those backgrounds would view this whole situation. I think that the jury consultants will do very well for their clients in this case, because there really are tough calls to be made.

KING: We'll take a break and be right back with more of your phone calls. Don't go away.

(BEGIN VIDEO CLIP)

S. PETERSON: Everyone's still helping us look for Laci. A lot of volunteers. Excuse me.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

KING: We're back. Tampa, Florida, hello.

CALLER: Yes, Larry, my question for your panel is if Scott Peterson is found guilty with the high profile nature of this case, does it give the defense more opportunities for appeal down the road later?

KING: Chris.

PIXLEY: There are a number of appellate issues already cropping up in this case. And of course, Mark Geragos is asking for extraordinary relief, such as a second change of venue. He has laid the groundwork for a number of appeals. I think there is no question, that with all eyes on the judge, and with the number of motions that are being filed in this case, there will be an interesting appeal and number of appellate issues if Scott is found guilty.

KING: Valdosta, Georgia, hello.

CALLER: Hi, Larry. My question is for Nancy. Nancy, first, I think you're wonderful. When Amber Frey has her baby will DNA be tested to see if it's Scott.

GRACE: I've had that question a lot. The reality was he was already incarcerated, I believe, at the time that she would have conceived so it's definitely not his baby. A lot of people have wondered that, though.

KING: By the way, would it have been germane if it was?

GRACE: I think possibly it would have been definitely a point of cross-examination linking to bias. It would be very difficult to testify against someone I think that you know is he father of your child, someone up against the death penalty so that would definitely be a point of cross-exam.

KING: Saint James, Missouri, hello.

CALLER: Yes, Nancy. I think you're great and I love you. My question is for the panel. Is it too late now, since this has been going on for so long that Scott can make a plea deal?

KING: Chuck Smith, can he still deal?

SMITH: Sure he can. He can deal while the jury is deliberating after all the evidence has been presented. But no one has heard anything indicating that there has been any plea negotiations going on in this case. So, it's very unlikely. It can go on any time over the next several months. If things start mounting up against him, perhaps there'll be discussions open, you never know.

KING: Chris Pixley, if you think your client did it, do you try to make a deal?

PIXLEY: Yes. Yes. If you think you can't win, and there's no possible way of winning a trial like this, you try to make a deal. Your obligation to your client, as long as your client agrees with that you ought to be making a deal and gives you that approval, your obligation for your client is to do for them the best job you possibly can. In some situations, with overwhelming evidence, that is the best that can be done. The real question here is whether there is any intention on the part of the defense at any point in time, and for that matter, any intention on the part of the prosecution to enter into plea negotiations. And the prosecution's made it clear they don't want to be doing that.

KING: Vancouver, British Columbia, hello.

CALLER: Hi. Michael Cardoza made the statement, why would Scott do this now if he had other affairs?

Well, I think it is because she is now pregnant. I'm wondering what the panel thinks of this. And by the way, I'm only 13. I want to be a lawyer because of Nancy Grace. I think she's amazing.

KING: Nancy, you have a young lawyer following in your foot steps.

Michael, did you understand the question?

CARDOZA: No, I didn't Larry, I'm sorry.

KING: No, I didn't either.

GRACE: I got it.

KING: Brooklyn, New York -- you got it? What was the question?

GRACE: The caller is asking regarding Scott Peterson, whether -- you know what, Larry, I think you're right. I was thinking about the guilty plea possibilities and the state's incentive to plea. Yes, I didn't get her question.

KING: The producer tells me what she meant was if he had other affairs, Michael, why would he kill over one girl?

CARDOZA: That's exactly it. That's why I say if there are other affairs out there, Geragos may well, as strange as it sounds, bring those in.

KING: Introduce them.

CARDOZA: Right, exactly. Say if he didn't kill before, why would he kill over Amber Frey, who he knew one or two months. It doesn't make any sense.

GRACE: Larry, can I jump in. I think the caller was right. I now recall exactly what she said. This was different because this time Laci was pregnant. It's a not necessarily Amber being the motive. It's lifestyle being the motive. He clearly stated to Amber that if the tape recordings are to be believed, he did not want to have children. That through a wrench in the deal for him. And that made this timing very different. The caller is right.

KING: We'll take a break and be back with more calls right after this. Don't go away.

(COMMERCIAL BREAK)

KING: Brooklyn, New York, hello.

CALLER: Yeah. Hi, Larry.

KING: Hi.

CALLER: As a future criminal defense attorney, I'd like to ask Nancy Grace a question. Nancy, as a prosecutor, can you please explain how you would explain to the jury a man murdering his wife and unborn child without any compelling forensic or physical evidence tying him to the body? And also...

GRACE: Yeah. It's called smothering. Next.

KING: What were you going to say, ma'am?

CALLER: But, Larry, I just would also like to say kudos to all those criminal defense attorneys out there who work very hard at protecting our constitutional rights. Thank you.

KING: Thank you. To West Palm Beach, Florida, hello.

CALLER: Yes. First of all, Nancy, you are a class act. And my question for the panel is how Mark Geragos going to get past the fact that before he was the attorney he was one of Scott's biggest critics.

KING: He wasn't one of his biggest critics. He had doubts about it. But I don't think that is going to be germane, do you, Chris?

PIXLEY: No. No.

KING: What will (UNINTELLIGIBLE) to a jury?

PIXLEY: It's not going to be, obviously. The jurors right now are being asked a number of questions about their exposure to the media. And some of those questions will have to do with what Mark Geragos had to say about the case, but I distinctly recall Mark Geragos saying nothing more than that there was probable cause to bind this case over for trial. And of course the case was bound over for trial. I'd never heard him comment to the effect that he thought Scott Peterson was guilty. So -- and moreover, as you've said, Larry, it's not going to come to play.

KING: Shelby Township, Michigan? Hello.

CALLER: Yeah, I was wondering if any body language experts have made public commentary about Scott as far as the way he tends to hood his eyes or make these bedroom type eyes when he's cornered with some hot questions.

KING: Chuck Smith, do you buy any of that?

SMITH: No, I don't. I really don't. I chuckled as the question was asked. You have enough substantive things to worry about as a trial attorney. You can't worry about things like that. And it's impossible to read into those things anything of any value whatsoever.

KING: Crittenden, Kentucky, hello.

CALLER: Yes. My question is for Chris Pixley. I'd like to know if he would join Mark Geragos as defense attorney. And I also think that Nancy Grace has also convicted him without evidence.

KING: Well, she certainly has strong opinions, we can say that. Chris, will you go on to this case?

PIXLEY: And she has a lot of evidence to work with here. There has been obviously -- you know, this is a real mystery. The question on one hand is how and why does a man, you know, murder his wife on Christmas Eve when he has no violent past, no criminal history of any kind. And of course, on the other side, there is all of this circumstantial evidence against him and I think that's why it's been so interesting.

Larry, you know, I will say one thing, Mark Geragos has been (UNINTELLIGIBLE) been added onto the Michael Jackson defense team. He has a wonderful staff, who I have met in California. Other attorneys, I shouldn't call them staff, other outstanding attorneys that work with him. And I think at some point there can be too many cooks in the kitchen. So I've never lobbied for the position, and I think that this Petersen family is very well represented by him. And will be through the trial.

KING: Ted Rowlands, what's next?

ROWLANDS: Well, they're going to continue with this process, this secondary process of jury selection. Basically, 12 to 13 jurors per day, six in the morning session, six in the evening session or afternoon session, will go through this process and both sides will have opportunities to ask them pertinent questions about their exposure, their predisposition of possible guilt or innocence, and then the judge will make a decision on whether or not each one of these folks will be involved in this pool. At the end of the week, we do expect that Geragos is going to take the numbers that are combined from this week. And if they are low, it's expected that he'll go to the judge and file for another change of venue or some relief, and use this week as evidence.

KING: Thank you all very much. Ted Rowlands, Nancy Grace, Chris Pixley, Chuck Smith and Michael Cardoza. And I'll be back in a couple of minutes to tell you about what's ahead. Don't go away.

(COMMERCIAL BREAK)

KING: Tanya Tucker tomorrow night. And Wednesday night, Richard Clarke will be our guest. He's going to testify before that congressional committee Wednesday afternoon. He'll be on LARRY KING LIVE Wednesday night. And Aaron Brown on his way back from the Middle East, so Judy Woodruff will host "NEWSNIGHT" tonight. You've got to admit the picture looks a lot nicer when -- aah. There's her loveliness. Ms. Woodruff, I imagine Mr. Clarke will be with us Wednesday night, might be on the drawing board tonight. TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com



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