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Legal Analysis of Scott Peterson Double Murder Trial Day One

Aired June 1, 2004 - 21:00   ET


LARRY KING, HOST: Tonight, day one of Scott Peterson's murder trial -- finally. The prosecution takes all day to lay out its case, questioning inconsistencies in Scott's stories and detailing his affair with Amber Frey. But will his unsympathetic behavior be enough to convict him? Because they still have no murder weapon, no murder scene and no cause of death. No cameras allowed in the court, either, but CNN's Ted Rowlands was there, and he'll give us a blow-by-blow account of today's dramatic opening statement by the prosecution. Also with us, Court TV's Nancy Grace, the former prosecutor; high- profile defense attorney Chris Pixley; former prosecutor Kimberly Guilfoyle Newsom; and Michael Cardoza, one of the top defense attorneys in the area. He was in court today, too. And they're all next on LARRY KING LIVE.
Let's go CNN's own Ted Rowlands for what happened today -- Ted.

TED ROWLANDS, CNN CORRESPONDENT: Well, it was a long day, Larry, and it was all prosecution. The original plan was to have the prosecution deliver opening statements in the morning, and then the defense to come after the afternoon recess. But the prosecution ended up going all day long.

Really, not a lot of new information, but it was all compiled together. Rick Distaso, the lead prosecutor, methodically went through the state's case, starting very slowly with the night that Laci was reported missing and moving all the way until October 18, when Scott Peterson was arrested. He played audiotapes of Scott Peterson talking with his girlfriend, Amber Frey. On a night where people in Modesto were gathering for a vigil on New Year's Eve. Peterson was talking to Frey as if he was in Brussels, saying that he was going to continue his relationship with her and saying, quote, "Our relationship will grow." It was a five-minute portion of tape that was played in front of the jury. Distaso indicated that he had more of that conversation and more of other conversations.

He also detailed specific lies and inconsistencies throughout the entire period after Laci's disappearance that Scott took part in. And he compiled them all together to show that while he wasn't delivering the entire case in terms of how, when and where, he was showing that Scott Peterson, in his words, was the only person that could have committed the murder of his wife and unborn child. And he said that this was a case of common sense.

KING: Nancy, in an opening statement, how much of a case does the state reveal?

NANCY GRACE, COURT TV: Well, Larry, I've got my own theories on that. I think when you strike that jury, No. 1, that's the single most important part of your case. But No. 2, that opening statement, Larry, you got to hit them and you've got to hit them hard. And that's what Distaso did today. It took him four hours to put up the state's case in opening statement.

And the way he finished it -- now, Distaso is not big on drama, all right? But at end of that statement, he put up in the courtroom Laci and Conner's remains. And there were audible gasps. That brought it home. All these facts, all these phone calls, all these charts, all these maps -- it's all about these remains and the loss of Laci and Conner.

But I'll tell you this much, Larry. I think tonight Geragos is dancing in the halls, not because Distaso gave a bad opening, he gave a great opening. But he has a tactical advantage. Tonight he can prepare to make a comeback. If he had been forced to give his opening statement today, it would have been much less than it will be tomorrow.

KING: Chris Pixley, does the prosecution have to back up everything it said in the opening statement? Must it produce everything to back it up?

CHRIS PIXLEY, DEFENSE ATTORNEY: Well, if they're smart, they will. One of the -- one of the real rules in an opening statement is that you don't overstate your case. It's essential that you get the evidence out there, that you pique the jury's interest, that you build a relationship with them. But this is a relationship of trust, Larry. You are building a long-term relationship, especially in a case that's going to last months. And if you can't back up what you said in the opening statement, the jury's -- the jury's going to make you pay for it.

So it will be very important for the prosecution to find a way to back up the statements that they've made in a four-hour opening statement which has covered a tremendous amount of ground.

KING: Kimberly, I know you attended a lot of preliminary hearings. How much of the opening statement on both sides remains with the jury on a trial that goes this long?

KIMBERLY GUILFOYLE NEWSOM, FORMER PROSECUTOR: Well, there are some studies that suggest that many of the jurors make up their minds -- 30 percent to 40 percent of them make up their mind after hearing the opening statement. It really is a road map. And for Mark Geragos tomorrow, he's got a big task ahead, and I think and know -- I'm confident that he's going to deal with the evidence piecemeal, go through and attack all the things that the prosecution brought up. And I think that's the best way to hit the case in this particular instance.

KING: Michael, is the whole point, then, to create a doubt?

MICHAEL CARDOZA, DEFENSE ATTORNEY: For the defense, absolutely, Larry. I think he's got four things he's got to address. One of the things that Distaso talked about in the opening statement, which was four hours -- and he got into a lot of minutiae that I didn't think he had to get into. But one of the things that struck me was that when Scott came home and reported Laci missing, he told three separate people that he was golfing that day -- not fishing, but golfing.

The other big piece that Geragos is going to have to address, they're going to bring a scientific expert on to say that Laci and Conner's bodies were dropped off at an island in San Francisco Bay. That's where they were dropped in the water. That just happens to be where Scott was fishing that day. The other thing they have to address is that Scott went back to the Berkeley marina before it became public that they were looking for the bodies in the Berkeley marina. He's going to have a lot of explaining to do there. Geragos should have the answers tomorrow.

KING: What, Ted, was the reaction of the families in the court today?

ROWLANDS: Well, at different times, there were, as you could imagine, different reactions. Of course, the most emotional part of the day was when Rick Distaso brought out the autopsy photos, the remains photos of both Laci and baby Conner along the shores of the San Francisco Bay. Laci's mother was obviously, as you might imagine, very visibly upset. The entire family was upset, looked down. Scott Peterson would not look at any of those photos. He also would not look at any photos of he and Amber Frey which the prosecution put up of him at a Christmas party, the same night that Laci was alone at another Christmas party, representing the family while Scott was down in Fresno with Amber Frey.

At one point Laci's father, too, broke down at a shot of Laci showing off her pregnant stomach and had a glow about her. And it was just too much for him. So there was a lot of emotion throughout the day. At one point, Janey Peterson, on the other side, got up and left because she didn't want to see the autopsy photos. But other times, people were intent in listening to what Distaso had to say. And I think the jury throughout the entire process was focused on Distaso and absorbed pretty much everything that he said. And they were able to concentrate even through those autopsy photos.

KING: Nancy, why are they expecting this trial to take so long?

GRACE: Well, if you take a look at the opening statements, Larry, and the jury selection, that's a pretty good indicator as to how this case is going to go. You know, the state is going to put up many, many witnesses. They've listed 200. I don't think they're going to put up that many. But so far, the list from the defense is 35 witnesses, a video, some written reports, a very, very slim defense case. I don't think it is going to go six months. I'm looking at maybe three or four. But judging by how long it took to strike a jury and give the opening statements, I think that's a pretty good prediction. It will take months.

KING: Chris, can the defense make a strong issue of the fact that the police appeared to have no other person under investigation?

PIXLEY: Oh, absolutely. I mean, you have to make sure that it doesn't come off as a stunt when you focus on what the police did or didn't do. But you know, in this case, we already know from the preliminary hearing that Detective Owens said, Yes, we did get leads that focused in another direction, but it wasn't taking us in the right direction -- i.e., it wasn't taking us more toward our argument, our belief that Scott Peterson was guilty. And that, of course, is going to come up. The defense is going to ride Detective Owens, Detective Evers and Detective Brocchini on those issues. And there isn't much of a defense here. Ultimately, it's going to be clear, I think, as it was at the preliminary hearing, that the detectives had a theory that they formed very early on, that they ran with it, and everything else was just -- just fell by the wayside.

KING: We'll take a break and we'll be back with more with our outstanding panel tonight. We'll also be including your phone calls. Don't go away.


KING: Kimberly Guilfoyle Newsom, most cases are circumstantial, unless, of course, there are eyewitnesses. Does the prosecution have to show motive, cause of death, where it happened, how it took place? They don't have to show any of that?

NEWSOM: No, they don't, but I think the evidence that they do have in this case is going to speak volumes to the jury about why Scott Peterson was a man with a motive to lie -- lie to his wife, lie to Amber Frey, lie to the police and wasn't fully cooperative like he said.

And I'll tell you what, Larry, I'll take a circumstantial evidence case any day above even a direct evidence case because those are cases that deal with common sense. And that's what this case is about. It's not about one piece of evidence. It's not about the hair on the pliers or the residue of the cement anchors -- where are they now? It's all of the things adding up to show that Scott Peterson wanted out of this marriage and he took it into his own hands, didn't do a divorce because he didn't want alimony, he didn't want a family, and he had not only the affair with Amber Frey but with other women, as well.

KING: Michael, does the defense have to present this guy as sort of a cad who did a lot of wrong things but is not a killer? I'm sorry, we don't have Michael Cardoza.

Do they have to do that, Chris Pixley?

PIXLEY: I'm here, Larry. Yes, I think one of the big questions that Mark Geragos has to answer, and it's a question that I expect he was struggling with as he prepared his opening remarks, is whether he tries to personalize Scott Peterson, whether he tries to make a connection between the jury and Scott Peterson or whether he just abandons that altogether. And the fact in this case is that the state doesn't have the hard physical evidence to prove how this murder occurred, to prove when it occurred, to prove where it occurred.

And I disagree with Kimberly. You know, give me a circumstantial case for the defense, where you can't prove anything about the whereabouts of the decedents, when she died or how it occurred, and if you have a 30-day relationship, some confused bloodhounds and nothing more, you don't get a conviction.

GRACE: But Larry, there's so much more here. I don't know why the defense keeps arguing we don't know when Laci was killed. All you have to do is look at Laci's remains. I advise everybody to take a look at that autopsy report because Laci Peterson was wearing the same clothes she was wearing December 23 at Salon Salon. I expect witnesses to come on and identify those clothes. Laci Peterson was not killed on Christmas Eve. She was killed sometime the evening before, and her clothes will prove that.

PIXLEY: And in the face of that evidence, Larry, they're going to have to discuss -- the prosecution is going to have to deal with all of the witnesses, the eyewitnesses who saw her the following day walking her dog. And I don't know why it's so hard for everyone to believe that a woman who, by the prosecution's own theory, was so tired out toward the end of her pregnancy that it was hard for her to get around -- why she might be wearing the next morning the same clothes that she wore on the 23rd.

KING: Kimberly, how much is he going to be hurt, the defendant, by the many, for want of a better term, dumb things he did?

NEWSOM: Well, that's the problem, and that's what the prosecution is honing in on, this theme, the web of lies and deceits, the number of interviews that Scott Peterson gets. Not one story he tells is ever the same. There's always a difference. Why does he lie about saying he's going fishing, then he tells other people he was going golfing? Nothing adds up because he's man with something to hide, and it's going to come back to bite him because the jury, at the end of the day, is going to know that he's lying and that he's covering up.

And to take issue with what Chris Pixley said, no one has ever suggested -- I think it is a red herring to think that this was some bloody crime scene. How about manual strangulation of your pregnant wife? You're not going to need a murder weapon, and you're not going have some helter-skelter bloody crime scene.

PIXLEY: And you just need to show physical evidence of that, Kimberly. And unfortunately, they don't have any physical evidence of that. So we have to ask the jury to suppose. And that's not enough when you're asking for the death penalty here. Not at all.

KING: Ted, what is the makeup of this jury? I mean, like, gender-wise.

ROWLANDS: It's six men and six women. The men are all white males. The jurors range in age from their late 20s to their early 60s. The females -- there are three white females and three of color. There's one African-American woman, an Asian woman and a Hispanic woman on the jury.

And they are all different types of people. There's a -- there's one woman, juror No. 9, who was put in at the very end as -- got bumped up from first alternate to juror No. 1, who has gotten a lot of attention because she, at one point in her life, married someone who was in prison and convicted of murder. That individual later died in prison, was actually killed himself in prison. There's a firefighter, there's a former cop, a security guard. It really does run the gamut.

KING: And also, Jo-Ellan Dimitrius helped select this jury for the defense. And she's run a pretty good track record, hasn't she, Ted?

ROWLANDS: Yes, Jo-Ellan Dimitrius was on the defense side. She, of course, worked with O.J. Simpson and has a long career as a top- notch jury consultant. On the prosecution side, however, they had Howard Verinski (ph), who himself has a very impressive resume. His last work was done in the Martha Stewart case, working for the prosecution. And of course, they got guilty verdicts against Stewart. He started way back with the Bernard Goetz subway vigilante case in New York, where he also helped the defense.

KING: Nancy, how important are these consultants?

GRACE: Well, Larry, I never used consultants, and I think that it's very outmoded to try to pigeonhole jurors by their age, their race, their sex, their education. I think it really all boils down to it's your jury. When you're arguing this case, you got to have the jurors that you like the best, that you get a vibe off. That is how I struck a jury. Is it scientific? Heck, no. Did it work? Heck yes.

And another thing I wanted to bring up very quickly, Larry, in response to what Chris Pixley and other defense attorneys have said, regarding why is it so hard for you people to understand this eight- month pregnant woman just put on her clothes she had lain on the floor from the night before? Total BS because your guy, Scott Peterson, is the one that told the cops she had on black pants and a white shirt, which coincidentally, Larry, all these other people that claim they saw her the next day, they give that same description. That's not what she was wearing because it's very clear from her remains she had on the same clothes she had on the night before.

KING: Chris Pixley, all the defense has to do is create doubt in one juror's mind?

PIXLEY: That's exactly right, Larry. And you know...

KING: They get a hung jury if that occurs, right?

PIXLEY: Well, exactly, if everyone stays with their positions. The idea, of course, is that jurors work together, and we see it on a daily basis in courts across the country. We tend to talk about mistrials as though it's something that occurs on a daily basis. And while, certainly, they do, many, many more trials go off without a hitch. Jurors work together. They understand the importance of what they're doing.

So -- but you're correct in saying that if one juror holds out and can't convince the rest, then, certainly, you can have a mistrial. KING: We'll take...

PIXLEY: And that's a definite possibility here.

KING: We'll take a break and come back with more and hope to reconnect with Michael Cardoza. We've lost him for a couple of moments. We'll also be including your phone calls. Don't go away.


KING: We understand Michael Cardoza is back. One quick question for you, Michael. And we understand you were unable to hear us. Is a circumstantial case good or bad for the defense?

CARDOZA: I think it's very good for the defense because of that one circumstantial evidence instruction that says if circumstantial evidence points to two reasonable interpretations, one to innocence, one to guilt, you must go with the one that points to innocence. It's Geragos's dream in a case like this that it's all circumstantial evidence, as long as he has reasonable answers for the prosecution's circumstantial evidence.

KING: Dallas, Texas, as we start to include phone calls. Hello.

CALLER: Yes. Wouldn't it be absurd for the prosecution to...

KING: I can't hear you. What'd you say, ma'am?

CALLER: Yes. Wouldn't it be absurd for the prosecution to imply just because Laci had on the same clothes the next day...

KING: What do you mean by "absurd to imply"?

CALLER: Well, Nancy was saying that she had the clothing on from the next day. That doesn't necessarily mean that she died the day before. It's not unusual for someone to repeat the same clothing.

KING: Yes, Nancy. Why is that unusual?

GRACE: Well, the problem with it is -- and I understand the lady caller's question -- yes, sure, on a day you're not going to work and you don't have to leave the house, throw on those sweatshirt and sweatpants. But in this case, Scott Peterson specifically told police exactly what his wife was wearing -- black pants, white top. That is -- after that went out on the airwaves, then the people that saw her in the park, that saw her at a 7-Eleven in Seattle, that saw her at a gas station, they all said black pants, white top. That's not what she was wearing.

KING: When you mimic, are you saying that they didn't see what they saw?

GRACE: I'm saying that these are well-intentioned people...

KING: Oh. GRACE: ... that probably saw a woman that looked like Laci wearing that outfit and reported it, as they should have. But frankly speaking, the evidence points to something very, very different.

KING: Tanner, Louisiana. Hello.

CALLER: Yes. I'd like to know if police, when they get other leads, and say they already fixated on Scott Peterson, how can they -- don't change their mind if they might have a good lead for something else, they just stay on the same person?

KING: Michael, you want to take that?

CARDOZA: Sure. The police tend to do that. Look at the Carey Stayner (ph) case down in Yosemite. The police went in one direction. I think Ted Rowlands was very involved in that case. And they refused to look at other evidence. The police, for some reason, do that. They lock on one person, and they won't let go. They're like little pitbulls. That's what the defense -- that's what they will argue in this case, that the police wouldn't look at other reasonable interpretations, they wouldn't look to investigate other possibilities. And that could bode badly for the DA in this case.

KING: Ted, has that been your history in covering these things?

ROWLANDS: Well, in the Stayner case Michael is alluding to, investigators had specific evidence that was leading them, compelling evidence, towards one group of people responsible for the four Yosemite murders. Meanwhile, there was this guy that had actually committed them that got under the radar somehow. And that'll be the argument with the defense, that the Modesto police, either well- intended or not, focused on the wrong individual. The reality is that, according to investigators, 80 percent to 90 percent of the time, they are right. That's what they do for a living. And they say, We had nothing against Scott Peterson. The case led us to him, and we tried looking elsewhere, but everything led back to Mr. Peterson.

KING: Kimberly, what does the prosecution want the police to do?

NEWSOM: The prosecution wants the police to tackle the evidence in a case aggressively, to look at all possible leads and suspects, because if you have the right person, then you have nothing to hide and nothing to fear in potentially examining other evidence closely and turning that over to the defense. And I argue that the police did that in this case.

But when inconsistencies come up and clothing descriptions don't match because people are fed information over the airwaves and then tailor their story to match those incidents and those accounts, that's when you can smell a fake, and someone who's trying to get their own notoriety and 10 seconds of fame and isn't a helpful person for the case.

PIXLEY: But you mention the fact...

KING: Now -- go ahead, Chris.

PIXLEY: ... that the story gets broadcast, Larry, over the airwaves, and that -- therein lies one of my concerns. In this case, if the police believed truthfully that Scott Peterson was responsible here and they were well intentioned in their efforts to focus solely on him, then you have to ask yourself why was there this constant leak of information to (SIC) the police, much of which, we learned through the preliminary hearing, wasn't, in fact, true? Why was there a need to make Scott Peterson publicly responsible for this murder before the investigation was even partially complete?

GRACE: Hey, Larry, one quick answer. I just want to point out that it is undisputed that the police in this case went and canvassed that park. They spoke to the homeless people. They looked at sex offenders in a wide radius around Laci's home, 523 Covina. They even investigated ex-boyfriends and neighbors. They didn't just focus on Scott Peterson. That is simply not true!

PIXLEY: And this is going to be a barn-burner because the fact is that the eyewitnesses who saw Laci Peterson all share a common theme, aside from who they saw and when they saw her, and that's the fact that they phoned the police, that they visited the police, that they tried to tell their stories, and in every case, the police failed to follow up with them, didn't call back, didn't meet with them until long after Scott Peterson was actually arrested.

NEWSOM: And in every case, the evidence led back squarely to Scott Peterson, and that's the problem the defense is going to have in this case. It always goes back to Scott.

KING: Northwest, Illinois. Hello.

CALLER: Yes. Has anyone ever seen Scott Peterson grieve his deceased son and wife?

KING: Michael, is that relevant?

CARDOZA: No, it's really not relevant. I mean, Geragos may have to argue that away in court, that he doesn't show grief in court, but he's not going to do that.

And getting back to what the panel was just talking about, about the evidence, where the police didn't follow up, as Chris said -- you know, it doesn't matter where it leads. What's going to hoist them on their own petard is they didn't give it up to the defense, and Geragos will attack that and make the DA and the police appear untrustworthy. So it doesn't matter where that evidence might have gone, it's the fact that the police and the DA may have hid that from the defense until what, a couple of days ago? And Geragos finally gets the evidence about that...

GRACE: That's not...

CARDOZA: ... ex-police officer?

GRACE: ... what they say. They say they handed it over, over a year ago in a stack of documents. So who do you think is telling the truth?

CARDOZA: That's not true.

GRACE: That's really up to the judge.

NEWSOM: And Larry...

KING: All right, let me get a...

NEWSOM: ... with respect to the grieving -- I'm sorry. Why was Scott Peterson, when the bodies of Laci and Conner washed up, down in San Diego, down by the border with $10,000 in cash, dyed hair and a fake ID, too busy to come back, so the police takes him into custody. That's the problem with Scott Peterson.

KING: We'll take a break and come back with more and more phone calls and reintroduce the panel right after this.


KING: Let's reintroduce our panel. Ted Rowlands now with CNN, he's been covering the Peterson story since day one. Did one of the few, by the way, on-camera interviews with Scott after Laci disappeared. In Atlanta, with us tonight, Nancy Grace, the Court TV anchor and former prosecutor. Also in Atlanta, the Atlanta defense attorney Chris Pixley. And in New York, Kimberly Guilfoyle Newsom, the first lady of San Francisco, Court TV anchor as well and former prosecutor and CNN legal analyst. And in Redwood City is Michael Cardoza, Michael is the local defense attorney, former Alameda county prosecutor who was in the courtroom today. Let's go to Jonesboro, Arkansas. Hello.

CALLER: Yes, my question is for the panel. I was wondering, and Nancy, you're wonderful. I can't get enough of you and Chris. My question is, did they provide the phone documents that stated that he -- where he stated I didn't do it, but I know who did? Was that -- has that been proven?

KING: Scott? I mean, Chris?

PIXLEY: Well, some of that came out in the preliminary hearing and of course we are going to see more of the transcripts, the taped transcripts of conversations with Amber Frey. We know that there were quite many --quite a few conversations between the two of them covering a range of topics and we also know that Amber revealed to Scott early on in those conversations that she was aware of Scott's marriage. So much of that will come out at the time of the prosecution's case.

KING: Nancy, there's no doubt because they introduced it in the opening statement that she will be called, right?

GRACE: Absolutely. Allred, her attorney, Gloria Allred, won't say when she's coming but she also confirmed today that Amber Frey will take the stand. Frey just had a baby, a little boy, I understand. So that is her -- her pregnancy will not be an issue at trial. But back to the lady caller's question regarding that specific statement where Peterson allegedly said I didn't do it but I know did. I think we would have heard about that today like a bombshell, like a stink bomb in the courtroom if that was going to be produced but I think what we will hear, though, to the lady caller, is statements like, I didn't do it, and I can't tell you anymore because I want to protect you, Amber. I find that very, very fishy if he knew anything else about his wife's murder and disappearance, why wouldn't he just tell the cops, Larry?

KING: Bolton, Ontario. Hello.

CALLER: My question is why wouldn't Scott Peterson offer to have himself hypnotized?

KING: Michael Cardoza, what about hypnotism in a case like this?

CARDOZA: Certainly, his defense attorney wouldn't let him make any statements so we have to start with that. As far as the hypnosis goes that's a technique used by the police. In this case, remember they hypnotized one witness and Delucchi kept that witness out because the hypnotist was not licensed here in California but because the D.A. did not give up certain evidence to the defense, Delucchi now is letting that hypnotized witness testify in this case and she is the one that says she saw people in front of Laci's house on the alleged morning of the kidnapping.

KING: Ted Rowlands, the jury can watch this show tonight, can they not?

ROWLANDS: Well, no. They're not supposed to watch this show tonight. But that's the problem. You never know what a jury is going to do. But the judge emphatically admonishes the jury every time they leave the courtroom and they're not to read newspapers, watch shows on this or talk about it even with their spouses. Whether or not some of them indulge, if you will, you just never know. But, no, they are not to watch this or any other program deal dealing with this case.

KING: Kimberly, is there a rule of thumb, is there belief that they listen to the judge when they tell them not to watch a show?

GUILFOYLE NEWSOM: I really think that jurors are respectful of the charge when the judge reads to them and instructs them that they are not to watch any news programs, maybe their favorite shows like LARRY KING or news articles, et cetera, I think they do abide by that. Jurors come in, take their oath seriously, try and follow the evidence, listen to the judge and ultimately at the end of the day, seek justice and do the right thing.

KING: Minneapolis, hello.

CALLER: Nancy Grace, I think you're fantastic. I love you. My question is today during opening statements, I had heard that Scott Peterson had told Amber Frey that he did not want to have any children. In fact he even thought about having a vasectomy. And I was just wondering what kind of impact do you think that would have on the jury and keep up the great job. KING: Hey, huge impact on this jury. His wife is sitting at home seven months pregnant at the time of this conversation. And he's saying to Amber Frey, it is all on tape, so you two defense attorneys can't take issue with this. He's telling his girlfriend, you know what, your little girl is going to be enough for me. I don't really want kids. I'm going to have a vasectomy. It set off an alarm in these jurors' heads. One quick thing to Cardoza. He says, and I don't think that the listeners and the viewers should be misled, he says Scott Peterson didn't go to a hypnotist because his lawyer wouldn't let him. Hello, wait a minute. Long before Peterson got lawyered up, he refused to give a polygraph, he refused to fully cooperate with police, much less go it a hypnotist. So let's be fair. He was not cooperating with police before he ever got a lawyer.

KING: Michael?

CARDOZA: I'll tell you, Nancy, I couldn't disagree with you more. You know no defendant is going to go to a -- for what reason?

GRACE: He wasn't a defendant at the time.

CARDOZA: Nancy, if he wanted to tell his story, he simply could have told it to the police without undergoing hypnosis. Hypnosis is used to recall things that a person can't bring out of their memory.

GRACE: Polygraph.

CARDOZA: There would be no need for a hypnotist in this case and you know...

GRACE: Even O.J. Simpson took a polygraph.

GRACE: You know polygraphs, polygraphs are not admissible. You know that so don't throw that red herring out to the audience.

GRACE: It doesn't matter whether it is admissible or not. If he was genuinely interested in finding, quote, unquote, "the real killer" as Mark Geragos has said, who is responsible for Laci Peterson missing and also her death, in this case, then why not cooperate with police? Why not do a polygraph test if you're a man with nothing to hide? The problem is he is a man with a number of things to hide and a bunch of lies and he hasn't been able to cover it up and that's the problem.

KING: Chris?

PIXLEY: And I think we're ignoring the natural reaction that anyone would have when they know that they're a suspect. Mind you, Scott Peterson knew he was a suspect in this case because the police were rummaging through his home within days of his wife's disappearance and to Nancy, actually, Scott Peterson had an attorney within 10 days of Laci's disappearance.

GRACE: Before those ten days, police asked him to come in and give a statement. They asked him to take a polygraph. He wouldn't do it. Long story short, polygraphs are admissible in evidence with the stipulation of both parties. Good luck trying to get a polygraph of Scott Peterson.


KING: Yes.

CARDOZA: We do have the fifth amendment still here in the United States, don't we? So to hear these prosecutors throw out why didn't he come in and say this, why didn't he come in and say that? He has a right to remain silent and he exercised that right with the police.

KING: Burlington, Vermont. Hello.

CALLER: Nancy, you're great and I love you. My question is for Ted Rowlands. Why would Scott Peterson only buy a fishing license for two days being a resident of California when it costs almost as much for a two-day one as a year one for a resident if there wasn't some ulterior motive?

ROWLANDS: Well, you know, two-day licenses are common. You just -- who could say why he would want to buy a two-day license. From the defense standpoint and the family says that it wasn't about fishing as much as it was about using his new boat and that's why he bought the license. And he wasn't out there necessarily to fish but wanted to test out this new boat that he was excited about. And he told his wife about. But just hadn't told the rest of his family.

KING: Chris, couldn't we use a little reverse psychology that he's innocent because nobody could have done all the things he did to appear guilty.

PIXLEY: It is a great point, Larry. You can't overstate it. The fact is Scott Peterson has made a number of miscues in this case. He's talked to the wrong people, he has said the wrong things, in his personal life he was making mistakes on a grand level and yet we somehow want to believe or at least the prosecution is asking this jury to believe that this man who has no history of violence, who is an amateur criminal, somehow carried off the perfect murder where there is no forensic evidence of any kind. And you're absolutely right. This is -- on one level you've got to accept that he was bungling and made a lot of errors. So how did he carry off such a clean murder.

KING: Doesn't it bother you, Kimberly, as a prosecutor -- I know you don't have to prove motive.

NEWSOM: Right.

KING: But don't you have to think why? Why not divorce?

NEWSOM: Sure, and of course...

KING: It's done every day.

NEWSOM: You're right. I know, but maybe he's just cheap, Larry, and he doesn't want to pay the alimony or anything else. KING: So instead of -- so in other words, let's see. Let's see. I'll go to jail for life or it will cost me $100. I think I'll go jail for life. Come on?

NEWSOM: Well, he should have gotten some better advice, I guess, is the bottom line. We don't have to prove motive in a case...

KING: I mean, doesn't it -- doesn't it puzzle you, though?

NEWSOM: ... as a prosecutor. Sure, it is puzzling.

KING: Doesn't it startle you?

NEWSOM: But I think there was a motive here. This was a man, he's running around town, he's a bonvivant, and no, that doesn't make him a murderer, Larry. I know, we have gone down that path before. But I'll tell you what, all the other things add up to show that he was a man who had no intention of carrying out that loving, doting husband and father family lifestyle. He's on the phone with his mistress, talking about how they're going to be together, how he's going to get a vasectomy. He clearly doesn't want children. He had other affairs. All of these things speak volumes about his mental state, about his intentions about staying in a loving and committed marriage. He had no intention of doing that. He wanted out. He took the avenue -- and the easiest recourse, and I don't think it was any kind of bloody crime scene. I believe it's...


PIXLEY: The implict answer to your question, is you don't have to prove motive, but because the state can't prove how this murder occurred, when it occurred, where it occurred, they're going to argue, as Kimberly has here, what the motive was. Sure, they don't have to prove it, and she's going to point that out, but the entire case is built on the motive, and it's built around a motive that this man wanted out of his marriage so he could be with a woman that he'd known for less than 30 days. Who, by the way, had her own child.

NEWSOM: It is not about Amber Frey, Chris.

PIXLEY: And yet they're going to tell us that he didn't want to have children.

NEWSOM: It's not about Amber Frey. She is an indicator of his mental state...

CARDOZA: May I say a word?

NEWSOM: .. and that he wanted out of that marriage and that relationship.


KING: Michael, one at a time, Michael, yeah. Michael -- yeah, Michael's speaking. CARDOZA: If Geragos -- if Geragos is smart tomorrow, and I believe he's a very smart man, he will get up and answer Kimberly's questions by telling this jury that Peterson is a first class, gold- plated cad. He is guilty of adultery, he is guilty of emotionally abusing Amber Frey, but he is not guilty of murder. And don't let the D.A. sway you because of that. With all the emotion that Kimberly or Nancy brings to this, that doesn't make him a murderer in this case, and Geragos will argue that away. And he will argue away there is no rational motive, no rational motive in this case.

NEWSOM: Michael, so what you're saying is, he's going to say that don't hate my client because he's sexually frustrated; he's a lover, not a killer. I mean, that's what you're saying.

CARDOZA: No, I am not saying that. No.

NEWSOM: The problem is there is there is other evidence...

CARDOZA: I am not saying that.

NEWSOM: ... that ties him directly into Laci missing, all the evidence. The plier with the hair on it, the cement residue. Where are those anchors now?

CARDOZA: Oh, please. Oh, please.

NEWSOM: The -- the lies about what she was wearing, the lies about whether he was golfing or fishing. All of these things are going to add up. The fact that the dogs alerted at the marina and in the driveway of the house, all of those things. His timeline also doesn't make sense.

KING: All right, I get to get a...

NEWSOM: Plus all the inconsistent statements.

KING: Let me get a break and then we'll pick up with more. And it's just started. Don't go away.


KING: We're back. Bill Maher tomorrow night.

Fresno, California, hello.



CALLER: My question is about, wouldn't it be relatively easy for the prosecution to prove that the bay current could do that, tie that knot around that baby's neck? I mean, anybody who's ever used a washing machine knows, like, when you put a shoe string or something in a washing machine, what it will fit around probably everything in there. So wouldn't it be relatively easy for them to prove that?

KING: Nancy?

GRACE: I think that's exactly what they're going to do. That seems to be -- or seemed to be for a while -- Mark Geragos's ace in a hole, that baby Connor had a tiny bit of rope tape around his neck. And the suggestion is that this child was born normally and then tied up.

That's not going to work. This was not a normal vaginal delivery. Her cervix was intact. This child came out of her stomach, underwater. And I think experts are going to be brought on to show exactly what this lady caller just said. And, Larry, one thing you said earlier used to plague me the many years I prosecuted murder cases. I would look over at the defendant and think, why? Why would you do this? But Larry, all you've got to do is look at the number of domestic homicides in this country every year, every month. Finally after 10 years of it, I finally ask why -- I quit asking why, Larry. Because there is no good motive for murder.

PIXLEY: But baby Connor is not going to help the prosecution ultimately. First of all, you have to accept what Nancy is saying, that this knot is going to show up in photographs and according to expert testimony as something that just wound up tied around baby Connor's neck. And then there is also the possibility that we're going to be talking about the gestational age of baby Connor. Add to that the fact that the baby wasn't found at the foot of the ocean, at the shoreline. He was found some 15 feet from the foot of the ocean. He was found near footprints and tire tracks that were never investigated by the police. That will be an important issue. Baby Connor will be one of the keys for the defense, not the prosecution here.

KING: Providence, Rhode Island, hello.

CALLER: Hi, Larry. First of all, the women on your panel look great. And I just had two questions...

KING: Men look good, too.

CALLER: One is -- all right, the men are good, too. Isn't it possible that she could have gone into labor as he was killing her? And my second question is, will the defense put Scott on the stand?

KING: All right, Kimberly, you take the first one, and then Michael will take the second. Kimberly?

NEWSOM: Yeah, I think that that's not a likely scenario. I think that we would have seen evidence, physical evidence, some kind of crime scene to suggest that. Because that would be very difficult to wipe away and totally purge the scene of any evidence of that. And I'll let Nancy answer the second one.

KING: No, I'm going to let Michael answer it.

NEWSOM: Oh, Michael, sorry.

KING: Will he take the stand? CARDOZA: Well, let me address whether the child, Connor, could have been born during a homicide. No. Because the experts for the prosecution say, as Nancy just said, it wasn't a vaginal birth. The baby was born underwater. So the baby was born postmortem.

And the second question was, I missed that, I'm sorry.

KING: Will he take the stand?

CARDOZA: You know, that's the real tough question here. I was talking to Mark after opening statements by the prosecution today, and that's a decision he hasn't made yet. He didn't tell me that. But just from the conversation, I know he hasn't made that yet.

The reason that I think he may have to put him on is because there is so much circumstantial evidence that Peterson is going to have to answer each one of those items of evidence and have a reasonable explanation. It's going to be a tough decision. Will he or won't he testify? I don't think they'll make that decision until the prosecution has rested their case.

KING: Ted, how much media coverage up there?

ROWLANDS: Considerable today. It died down during the jury selection process. But the media was out in force today. And they will most likely be here for the rest of the weekend, be monitoring the trial. Because there is no camera in the courtroom, it remains to be seen how much daily coverage this will get, or how much daily interest really there is out there that will of course drive the media coverage.

GRACE: Hey, Larry?

KING: Yeah.

GRACE: I wanted to add just one quick thing to the lady caller's question whether Laci could have gone into labor at time of the attack. yes, of course it is possible. But I want to point out one thing. And this to me gives a clue as to who the killer is. We know that Laci's body had been bound with tape and specifically as disheartening as it is for me to repeat, tape -- duct tape had been wrapped around her thighs to try to keep her from giving birth. Now, what killer would have wanted the baby to stay intact underwater? Who would have not only wanted to kill Laci, but make sure the baby didn't get free?

KING: We'll take a break and be back with our remaining moments. Don't go away.


KING: We're back. Olympia, Washington, hello.

CALLER: I want to say, Nancy, I think you're fabulous and I admire you tremendously. My question is for Chris Pixley. You had indicated that it is going to be a problem for the prosecution to determine the cause of death. Is it true that Laci's body washed ashore with no head and no limbs, how would they determine that she was strangled or smothered or suffocated, something like that?

PIXLEY: Well, you're exactly right. I think if I'm hearing your question correctly you're suggesting that somehow that is bad news for the defense or somehow the defense owes an explanation. You're right that the defense can argue, hey, the medical examiner, the coroner failed to do their job correctly. And the defense isn't going to be attacking the prosecution's experts' findings when they say we don't have a cause of death. But the fact remains, the prosecution has the burden of proof here. They've got to demonstrate either how Laci was killed or why she was killed. When you can't show how, when, where it all occurred, you have a major hurdle to overcome. Cause of death for jurors in capital cases is tremendously important.

KING: Bridgeway, South Carolina, hello.

CALLER: Hi, Larry. Thank you for taking my call. I was wondering if they ever stated if Scott Peterson ever bought any Christmas presents for Laci? If there was any -- under the tree?

KING: Do we know that, Kimberly?

GUILFOYLE NEWSOM: Sorry, Nancy was answering?

GRACE: Yes, Larry, I asked that very question on your show when both he Peterson and the Rocha family was with us that night long time ago and they said, yes. A Louis Vuitton billfold about this big. I can't wait to see if that's introduced into evidence. How does it compare to all the jewelry Peterson gave Amber Frey for Christmas.

GUILFOYLE NEWSOM: And he was planning on going to -- he went to a Christmas party with Amber instead of his own wife and there is photos of poor Laci sitting there at a party by herself because he chose to go with his mistress.

CARDOZA: I'll tell you what, if these two were prosecuting this case, they would get it shoved back at them so quickly. All they want to do is convict Peterson because of emotion, because he was a cad, because he was having an affair.

GRACE: No, because he's a killer cording to the evidence.

KING: One at a time.

CARDOZA: That's not going to be what happens in this case and you watch Geragos work on that and you watch him push it back at the district attorney and tell this jury, don't convict on emotion.

KING: Isn't it bad for a prosecutor to be emotional, Nancy?

GRACE: Well, you know, Larry, I'm not the one to ask about that because I, as a crime victim, always identified with the victim in the case. But you know what, what Cardoza just did is exactly what Geragos is not going to do -- is going to do in court. And that is you throw a piece of damming evidence at them and they answer something totally different. We're talking about a Christmas present, Cardoza. You can't answer and neither can Geragos.

KING: It doesn't mean he's a murderer.

CARDOZA: Exactly, you make it sound that way.

KING: You make it sound that way.

GRACE: I'm not making it sound any way other than what it is.

KING: Nancy, you said he bought her a little Christmas gift. Supposing he had a big gift planned that he was going give her the next day. How do you know that?

GRACE: And bought himself a boat. Guess what, he didn't because he was asked. He had plenty of opportunity to say that. The Christmas tree was put up with presents under it.

KING: Maybe he's just cheap.


KING: To be continued. Thank you, Ted Rowlands, Nancy Grace, Chris Pixley, Kimberly Guilfoyle Newsom and Michael Cardoza. And I hope Nancy and Chris go out to dinner and settle it there. I'll be back in a couple of minutes and tell you about tomorrow night. Don't go away.


KING: Tomorrow night, the always welcome Bill Maher. Will he agree or disagree, he is never dull. And speaking of always welcome, speaking of never dull, speaking of "NEWSNIGHT," speaking of Aaron Brown. He's back from a weekend in Seattle visiting old friends, getting together and having harmony and joy. And now back to report, our man, Mr. Anchor. Go ahead, Aaron, take over.


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