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CNN LARRY KING LIVE

Panel Discusses Upcoming Election; Panel Discusses Scott Peterson Trial

Aired October 27, 2004 - 21:00   ET

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


(BEGIN VIDEOTAPE)
LARRY KING, HOST: Tonight, who can keep America safer in the age of terrorism? George Bush or John Kerry. We'll debate this crucial issue with Senator Richard Shelby, Republican of Alabama, former chairman of the Senate intelligence committee, Senator Joe Biden, Democrat of Delaware, ranking member on the foreign relations committee, Maureen Dowd, Pulitzer Prize-winning "New York Times" columnist and William Safire, another Pulitzer Prize-winning "Times" columnist.

And later Scott Peterson's defense has rested after only six days. Is that enough to convince a jury he's not guilty of murdering his wife Laci and their unborn son? We'll ask Court TV's Nancy Grace, the former prosecutor, high profile defense attorney Chris Pixley, another top defense attorney Trent Copeland (ph), Chuck Smith, former prosecutor in the county where the trial is being held and Richard Cole, the veteran court reporter for the Daily News Group inside the courtroom for the entire trial. They're all next on LARRY KING LIVE.

(END VIDEOTAPE)

KING: It's our great pleasure to have two distinguished and important members of the United States Senate with us tonight. Senator Shelby is in Tuscaloosa, Alabama, Senator Biden is Wilmington, Delaware. Here in New York with me is Maureen Dowd, who, by the way, won the Pulitzer Prize for distinguished commentary and is author of a terrific bestseller "Bush World." And in Washington Bill Safire, also the receiver of the Pulitzer Prize for distinguished commentary, written many books, the most recent we think is "Lend Me Your Ears, Great speeches in History." And Bill was once senior White House speechwriter for Richard Nixon. We'll start with Mr. Shelby. What do you make of this 400 tons of missing explosives? How important?

SEN. RICHARD SHELBY (R), ALABAMA: I think it's important. But I think we need to find out the truth behind all the allegations. You know, this is a political season. We've got less than a week to go. And this is like anything, it's relevant in a campaign. But I think we need a thorough investigation to see when the weapons were first missing, where have they gone, if we can find out. And go from there. But politics is politics, and accusations will go on.

KING: Maureen Dowd, what's your read?

MAUREEN DOWD, "NEW YORK TIMES" COLUMNIST: I think it's a huge story. And I think while Dick Cheney and the neocons were looking for imaginary weapons, they lost the real weapons.

KING: This?

DOWD: Mm-hmm.

KING: Why do you believe it since they're saying we still have to investigate it?

DOWD: Well, they're gone. We don't know where they are.

KING: Because the Iraqi government said -- well, I think that our invasion of Iraq caused the things to happen, that Cheney was scaring up, it caused collaborative relationship between al Qaeda and Iraq. And it's caused the very scary weapons that can bring down planes and buildings to fall into the hands of terrorists.

KING: So it's a perfectly legit issue?

DOWD: Yes. And also we didn't have enough troops to protect against looting, any kind of looting.

KING: Bill Safire, what's your read?

WILLIAM SAFIRE, "NEW YORK TIMES" COLUMNIST: I'm a little suspicious of any last-minute charge. First of all, we have to find out, is this true. Second, why, if we knew about it or if it was known for 18 months since it began, why did it suddenly surface the last week of the election campaign. And third, what was the motive of whoever leaked it.

KING: But wasn't the leak the Iraqi government?

SAFIRE: Well, Mohamed El Baradei was in it somewhere. We don't know where. He's mentioned in every one of the stories. Was he the source? In the case that's true, then you've got to remember that he despises the Bush administration and made no secret of it. And if that's the impetus behind this story, we ought to know that this U.N. inspector is trying to affect the U.S. elections.

KING: Senator Biden, what's your view?

SEN. JOSEPH BIDEN (D), DELAWARE: Well, my view is the facts are pretty clear. Number one, January of '03, the IAEA, of which we're a board member, acknowledged that there were about 400 tons of this material that actually listed exactly what it was, 194 tons of one, 141.2 of another, et cetera. They sealed it. And then on April the 3rd, and Mr. Bot (ph) who works for the IAEA contacted our people in Vienna and said, I'm very worried that this stuff is so dangerous, you're not paying attention to it. On May 3, an internal memo of the IAEA said, quote, "the terrorists may be helping themselves to the greatest explosion bonanza -- excuse me, the greatest weapons bonanza in the -- in all of history."

And in addition to that, here's what it comes down to. I say to Bill Safire, Bill, we know we knew about this site. It was a prime site that we had targeted as the place where maybe nuclear weapons were being made, and yet nobody knew whether or not these weapons were missing according to the White House until October of this year. That's what the White House is saying. That's what Scott McClellan said. Now, I ask you, why did we not know? Is not that incompetence that we didn't go immediately to that site knowing it was a nuclear facility, knowing this stuff is the stuff of which you can detonate nuclear weapons, that is, a conventional explosive to ram together two pieces of highly enriched uranium to cause a thermo-nuclear explosion, and we knew there were over 300 tons of it, why did someone not go and see if it was still there?

SAFIRE: That's a long question, Joe.

BIDEN: Real simple, Bill, why wasn't someone there to know whether or not it was missing and when it was missing.

KING: And that's what we meant Joe Biden could have asked it in one sentence.

BIDEN: That's true.

KING: Bill?

SAFIRE: First of all, that was one of 900 sites that was on a list that was submitted...

BIDEN: None were like this, Bill. None were like this.

SAFIRE: Secondly...

BIDEN: You know it, and I know it.

SAFIRE: Come on now, did I interrupt your...

BIDEN: No, I won't. I won't.

SAFIRE: Second, we -- our men in the field, first the army, and then a week later the marines were there. There was a fight going on there. And this was on the way to Baghdad. And just after Baghdad fell, our men were there. Indeed an NBC correspondent was embedded with the troops and reported that they were there. They looked around. They stayed overnight. And they didn't report it.

KING: Well, did...

SAFIRE: I don't know in the course of a war, that they didn't get specific orders to search the site. That was a reason for not reporting it.

KING: Well, then, before I have Senator Shelby comment. Maureen, did somebody goof?

DOWD: Well, of course. This is a collision of two transformations that were always bound to collide if the president had been paying attention. Rumsfeld's transformation of the military, wanting to come in with this Vin Diesel kind of light force that would speed through and you could enter being in more countries. And the neocon's transformation, bringing stability, security, and democracy to Iraq. Those two things couldn't be accomplished. The neocon's plan needed many more troops.

KING: Senator Shelby, is she right?

SHELBY: I tend to agree with Bill Safire. One, this is highly suspicious as far as the timing is concerned. It's about politics. And this is a political season with a few days left.

KING: Does that mean it's wrong?

SHELBY: But on the other hand, on the other hand, we need to find out the truth here. We don't know what happened. There's been a lot of accusations. We don't know if these weapons, as of tonight, were there, or were they removed before our troops even got there the first time.

KING: Is that a fact, Senator Biden?

BIDEN: The question is, why don't we know that. It's incumbent upon the secretary of defense being told of the existence of this site, this highly, highly, highly dangerous substance identified by us, identified by our intelligence community, identified by the IAEA, why did not someone two years ago go look and see if the stuff was still there. Why didn't they do it six months ago.

KING: I've got to get a break and we want to get into who we are going to be more secure with, Bush or Kerry. That is the general topic of this half hour. And we'll be right back with Senators Shelby and Biden, Maureen Dowd and William Safire of the "New York Times." Don't go away.

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: The most solemn duty of the American president is to protect the American people.

If America shows uncertainty or weakness in this decade, the world will drift toward tragedy. This will not happen on my watch.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

JOHN KERRY (D-MA), PRESIDENTIAL CANDIDATE: One week from today, America faces a fundamental choice, the choice of a lifetime, a choice about the future of our country. I believe that we need a president who defends America and fights for the middle class in this country. When I am president, I will fight a tougher, smarter, more effective, more strategic war on terror.

(END VIDEO CLIP)

KING: Bill Safire, who's going to keep us safer? SAFIRE: Let me be non-responsive to your question, Larry, and see if I can move the story of this story al Qa Qaa forward a little bit. We now know from CBS's admission that CBS planned to broadcast this story, which we call in journalism, a keeper, one that's kept for its greatest impact. They planned to broadcast it next Sunday night, 36 hours before the polls opened. That is known as a roar back. That's a last-minute, unanswerable story, and it would have been all over the papers Tuesday morning as people went to the polls. Now, I think that's scandalous.

What happened, because "The New York Times" was working with CBS on the story, and I don't work on the news side of the "Times" at all, so I'm speculating, the "Times," either -- probably from a combination of ethical and competitive standards decided, no, we're not going to hold this story. We're going to go with it now. And they went with it on Monday. And -- but just think for a minute, if the plan had gone ahead, we wouldn't have had this debate this week where it's possible we could shoot some holes in this story or focus on the attack on the integrity of the examination by the troops that were there.

And instead, we would have had a last-minute manipulation of the election.

KING: You agree the "Times" did the right thing, Maureen?

DOWD: Yes, I love Bill, but I haven't seen him in a couple of weeks because he's been trapped in Bush world. I mean, they're just trying to throw up guerrilla dust and ask as though...

KING: But does he have a point?

DOWD: No, I think we should be focused on the fact that 380 tons of explosives are missing. You know, that's the story.

KING: Senator Shelby, do you agree? Is that the story now?

I want to get back to the original question. Is the story -- was the -- whose fault is this?

SHELBY: Well, I don't know whose fault it is, but I can tell you this, it's very suspicious because of the timing. Suspicious that CBS is planning to do it on Sunday where it couldn't be answered. Suspicious to me that it's broken the last few days of a campaign when nobody knows the truth of what happened. And you're not going to know until there's a thorough investigation. But I don't think we should denigrate our troops over there, the first troops in, the second wave in, we should wait for the facts, and we don't have them tonight.

KING: Senator Biden, who's going to keep us safer, the original question of Mr. Safire?

BIDEN: I'm going to evade it as well by answering Mr. Safire's point.

What he says may be true... KING: OK, guys.

BIDEN: ... But it's totally irrelevant. In other words, let's say CBS was doing what you say, Bill. What relevance does that have to whether the weapons are gone or not gone? What relevance does it have as to why we didn't know until October of this year that it was missing? What relevance does it have as to whether or not this is the tip of the iceberg of 650,000 tons out there, Bill.

Abizaid, testified before Shelby's committee and my committee and the -- the Armed Services Committee in September of 2003. He said there are 650,000 tons out there. We don't have enough troops.

KING: Senator Biden, are you saying Safire is setting up a smoke screen?

BIDEN: Well, I'm saying. I'm just -- no, I'm not going to characterize it your way. I'm saying it may be true, but it's irrelevant as to whether somebody was responsible to know.

KING: So, in essence, forget when the story breaks. In essence is the story right or wrong? Right, it doesn't matter when it breaks.

SAFIRE: That's the most important thing here, we don't know the truth of this story at all. And we're not going to find it out in 24 or 36 hours. It requires some careful look.

KING: Maureen, why do you totally believe it?

DOWD: Well, because I think "The New York Times" did an excellent job of reporting it. And I think it's...

KING: But they've been wrong.

DOWD: ... consistent. Peter Galbraith has a scary op-ed piece in the "Boston Globe" today. He was in favor of the war and was sent by Wolfowitz to, you know, talk about how Saddam, you know, had gassed the Kurds. And he says, that he went to Wolfowitz and warned Wolfowitz that all of this looting was not only turning the Iraqis against us, but that a lab had been looted with a lot of black fever and HIV viruses. And when a soldier across the street learned this, and said, Oh my gosh, I hope I'm not going to be responsible for Armageddon. And that the State Department and the Pentagon didn't do anything about this.

KING: Senator Shelby, would you agree that things have not gone as expected in Iraq?

SHELBY: They originally went as expected. Our military success there was unprecedented. But let's face it, we have been bogged down there. Our intelligence on the ground is as to the possible resistance from mistakes we've made along the way. And we're still there, and we're going to be there. But we cannot cut and run. And I don't believe we can point fingers at each other. And I want to answer your original question, if I could, Larry.

KING: Yes.

SHELBY: The original question, who's going to -- is America going to be safe under who. I think they're going to be the safest under George W. Bush. He has the experience. He's got the courage. And he's got the leadership. And he understands what has to be done.

Senator Biden?

BIDEN: Obviously I believe it's going to be safer under John Kerry, for two reasons. One, George Bush, he would not make the mistakes George Bush is making. He has a plan as to how to proceed from here. He would also focus more on homeland security instead of spending $10.5 billion a year on a national missile defense. He wouldn't be out building a new nuclear bomb, he would be protecting our own nuclear plants here. And he wouldn't be cutting The Cops' program out, eliminating cops across the country. I don't quite get how we being any safer. And in conclusion, the weapons were there, we went to war. The weapons are not there now. Why did the White House not know they were gone until October. And if they knew they were gone, why didn't they tell us before this.

KING: We'll take a break and get Mr. Safire to comment, along with Miss Dowd in this edition of the LARRY KING LIVE show.

Tomorrow night, Bob Schieffer will be among the guests. Former governor Richards, Marc Racicot will be here as well, so will Dennis Prager. Don't go away.

(BEGIN VIDEO CLIP)

BUSH: At home, we'll do everything we can to protect the homeland. I signed the Homeland Security bill to better align our assets. My opponent voted against it. We're doing everything we can to protect our borders and ports. But absolutely we can be secure in the long run. It just takes good strong leadership.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. JOHN KERRY (D-MA), PRESIDENTIAL CANDIDATE: So we can do a better job of homeland security. I can do a better job of waging a smarter, more effective war on terror and guarantee that we go after the terrorists. I will hunt them down and we'll kill them, we'll capture them, we'll do whatever is necessary to be safe.

(END VIDEO CLIP)

KING: Back to the other question, Bill. As time winds down, who will keep us safer?

SAFIRE: I think that undoubtedly that President Bush would take the offensive and keep the terrorists rocked on their heels. And I don't think Senator Kerry, who's a good man and would do his best, would do as good a job. But I like Joe Biden. And if Kerry should win, and I don't think he will, Joe will be locked in a life and death struggle with Richard Holbrooke to find out who will be the secretary of state.

KING: And who would you select, if Senator Kerry asks for your advice?

SAFIRE: Fortunately he doesn't. But Joe used an interesting figure there. They just sort of zipped by, which was 650,000 tons of explosives were in Iraq. Now, 380 tons sounds like an awful lot. And it is an awful lot. But when you compare it to, gee, I heard the president today say 400,000 tons of explosives have been found and exploded and gotten rid of. It's one small part of this huge armed camp that was Iraq. And not only did we put Saddam Hussein in jail, but we were able to absorb and destroy this horrendous amount of munitions.

KING: Maureen, who's going to keep us safer?

DOWD: Well, I think all presidential races are sort of about trying to figure out who is the good father, who will protect the house from the invaders. But after 9/11, that's literally true. The whole race has been Bush claiming Kerry's a sissy and Kerry fighting back against that with his 12-gauge shotgun and camouflage outfit and goose blood dripping down...

KING: So whom do you trust?

DOWD: Well, I think that although Bush says he's made the world safer, clearly the world is much more dangerous. And that's incontrovertible.

KING: So you would feel safer?

DOWD: I'm not in the business of endorsing. I would just say that...

KING: You're not endorsing?

DOWD: No.

SAFIRE: No, we don't do that, no.

KING: So Mr. Safire is not endorsing. OK, then the only two people endorsing tonight are Shelby and Biden. Senator Shelby, who's going to -- really now, this will be great. No spin room. Who's going to win?

SHELBY: No spin room here. I believe it's going to be close. And that President Bush is going to win and serve us well in the next four years.

KING: Senator Biden?

BIDEN: I don't know who's going to win. My gut tells me Kerry for the following reasons. Every place I've been in the eight or ten states I've been in for the last three weeks, registration is sky- high. Democratic registration in each of the battleground states is more Democrats than Republicans. I think that is probably the difference. But the honest to God truth is, I don't know. I wouldn't bet. I think Kerry will, but only because of the newly registered voters.

KING: Bill, how close is this?

SAFIRE: Larry, I just hope that all the punsters and pollsters and pundits are wrong, and it's not close. And whoever wins, wins decisively. And that will...

KING: You mean you would feel better if Kerry were the winner if he won by eight points?

SAFIRE: Absolutely. I don't think that will happen. But this idea of the squeaker, one squeaker after another, is not good for the country. I think what's best for the country is if we make a decision.

BIDEN: I think Bill's absolutely right. Absolutely right.

KING: Do you agree, Senator Shelby?

SHELBY: I think we've always struggled, and we've been close throughout history. This is a historical time. But I believe Bush is going to win. It's going to be close. I'm going to stay like that.

KING: I think only one person ever got 60 percent of the vote. Lyndon Johnson, '64. Maureen, where do you stand on this? Is it better if one of the them wins by a decisive margin?

DOWD: Well, it's the most excruciatingly close race in modern history. And...

KING: Closer than four years ago?

DOWD: Well, I think so. But I asked Bill Safire, because I think he's brilliant. And he said it's going to be a really large margin. And I said, well, which way? And he said, I don't know, one way or the other. But it's going to be large.

KING: Why do you think that, Bill?

DOWD: Well, sometimes the wish is father to the thought. Also, the pollsters, when they all sort of cluster together and say it's all too close to call, and they're protecting each other, a contrarian, which is what I am, likes to think, hey, maybe they're all wrong.

KING: Do you have a forecast, Maureen?

DOWD: No.

KING: Biden doesn't know, but he thinks Kerry. Shelby thinks Bush. Safire thinks the winner should win big.

SAFIRE: And it will be Bush.

KING: And it will be Bush.

DOWD: My only forecast is it's going to be a really big mess, I think.

KING: A mess?

DOWD: Yes, with all these lawyers and planes ready to go.

KING: Do you think we might not have a president on November 4?

DOWD: I don't know. Anything could happen.

KING: Maureen Dowd's book is "Bush World," it's a major bestseller. William Safire has written a ton of them. The newest is "Lend Me Your Ears, Great Speeches in History." Senator Shelby is the current chairman of the banking committee. And Senator Joe Biden is ranking member of foreign relations. We thank them all. We'll be back with more of LARRY KING LIVE as we look at the windup of the Peterson case right after this.

(COMMERCIAL BREAK)

KING: We're back. The Peterson defense has rested on Tuesday. Wrapped up its case after just six days, 14 witnesses.

With us to get into all this is Nancy Grace, the former TV -- former prosecutor and Court TV anchor.

In Atlanta, Chris Pixley, the defense attorney.

In Los Angeles, defense attorney Trent Copeland.

In Redwood City, Chuck Smith the former San Mateo County prosecutor, including six years as a homicide prosecutor now in private practice. He was in court today, and so was Richard Cole, who's been covering this for the "Daily News."

Richard, what do you make of this?

RICHARD COLE, "REDWOOD CITY DAILY NEWS": Well, this case sort of sputtered to a stop this week. I know a lot of us are scratching our heads. The defense, we was expected to put on Dr. Henry Lee, the well-known -- nationally forensic pathologist, presumably to talk about the age of the baby. He was sitting in a hotel room in Redwood City and the defense just stopped. They stopped on the testimony of a Modesto Police officer who had investigated a burglary across the street, which is -- the defense is suggesting as an alternative. And that was it. And then we were supposed to have eight witnesses today for rebuttal arguments for the prosecution. And instead, they just stipulated to a couple of things like some bags of cement were in the driveway. A couple of other minor things. And the thing shut down.

KING: Did the judge -- Nancy, will the judge charge the jury tomorrow? NANCY GRACE, COURT TV: Well, in a lot of jurisdictions, the judge can charge either before or after closing arguments. But I think Delucchi is going to charge the jury after closing arguments.

KING: When will closing arguments take place?

GRACE: Monday. Tuesday on election day. And jury charge is on Wednesday. Jury begin deliberation Wednesday.

KING: That's the day the judge predicted.

GRACE: That's right. He sure did.

KING: How did he know?

GRACE: Well, apparently the judge knows more than we think he does. Look he had this thing on a timetable from day one.

KING: Chris, why did the defense just stopped?

CHRIS PIXLEY, DEFENSE ATTORNEY: I think Nancy just named it. The reason is that the judge had this on a time table.

KING: You mean, Geragos had to listen to the judge? He couldn't keep.

PIXLEY: Oh, absolutely. Again for a reason that Nancy just named. The fact that the jury's still going to be charged, and the charging decision still has to be made. All of those charging decisions still have to be made. So, there is something -- there's a lot of power that the judge has over the parties right now. You know, I think what's most interesting here is the fact that the judge told the jury that they were going to come back today to hear from eight different rebuttal witnesses but told them not to come back until 12:30. That means he was going to have the attorneys back in chambers all morning long. And then ironically at the end of that period of time, we find out there are not going to be any witnesses at all. That says to me that the judge was putting a lot of pressure on all the attorneys to get this thing wrap up.

KING: Trent Copeland, what's your read?

TRENT COPELAND, DEFENSE ATTORNEY: You know, look, I think Chris is right and have to say that I also agree with Nancy, and that's a first, Larry. I really think that the judge, and really his discretion, he decided there really wasn't enough need for a rebuttal case. Remember, Larry, that's discretionary. It isn't automatic and the prosecution doesn't get an opportunity to simply put on witnesses that they otherwise could have put on earlier. It is discretionary. I think what this judge concluded was that this case had gone on for 19 weeks, 174 witnesses, and he had simply had enough. And anything else that was going to be added was simply duplicative and cumulative and he simply wanted this case to move forward and give it to the jury in a very timely fashion.

KING: But Chuck Smith, the judge can't tell the defense attorney to stop your case.

He could have called Henry Lee. He could have called other witnesses, couldn't he?

Why did Geragos stop?

CHUCK SMITH, ATTORNEY: I'm sitting here chomping at the bit to get in here on this. I totally disagree with Chris and Trent. The judge did not stop this down. If Mark Geragos had more evidence he wanted to present, he would have been allowed to present it. His client is on trial for his life. If there was any credible evidence to present that Mark Geragos wanted to, he could have. I'll tell you what happened. I watched the whole defense case. After Dr. Charles March imploded on the defense, a strategic decision was made by the defense to shut it down themselves.

They saw that they were not gaining ground with their defense evidence. They were not just keeping it neutral. They made a strategic decision to shut it down themselves, bring it to a halt. And now Mark Geragos will try to convince the jury that they did not call a lot of witness because they didn't have to. Because the prosecution didn't prove it's case. The judge had nothing to do with this being shut down.

KING: Nancy, is he implying that they gave up.

GRACE: What I think -- well, I think I agree with Chuck's general premise. But I'll tell you my theory on why Geragos shut it down. You've got one expert that melted like the wicked witch on the stand. He started sweating, his hair got all messed up. And he looked at the jury and asked him to cut him some slack. You know, it's over when your experts breaks down. Now think about it. Dr. Henry Lee, was also their expert. You know, they were going to have the same theory to back each other up. This guy melted on the stand...

KING: But Lee wouldn't have melted.

GRACE: No, Lee, would not have melted, but this whole premise of where they got the conception date. Trying to suggest that Conner lived for about a week after Laci went missing, BS.

KING: So, you have a bad witness, why close it down. Why not go to other witness.

GRACE: I think the theory was cut bait. Get out of there. That theory was going down the tubes and Geragos realized it. It was actually very wise. But the judge, as you said, as you pointed out, no way would Delucchi, who's tried a lot of death penalty cases, cut off the defense from a witness like Henry Lee.

KING: Richard Cole, so what's the Geragos strategy.

COLE: You have to remember that the defense was not unanimous about putting on a defense at all in this case. I think -- no there was a division within the defense team and they decide to basicly air on the side of caution by putting on some sort of defense, in the belief that the jurors would be disappointed and would question them if they didn't do that. I think that Mark Geragos may have decided to basicly -- that he wasn't getting out of it what he wanted.

And then after Dr. March, that he thought, well, I've got what I needed. I really felt like I had what I needed at the end of the prosecution case. Why take a chance, why keep it going, having something else go wrong when I think I have enough now for closing arguments.

KING: So, Chris, when he closes this, he say, they never proved their case and that's why it only took six days.

PIXLEY: Yes, absolutely. And I think it's really amazing. There's no question that this fertility expert March did not do everything that he was expected to do no the stand. But the idea that somebody is melting or that somebodies testimony was just thrown to the wind because it was based on some suppositions of what a reasonable person would do, when they found out that they were pregnant.

That was ultimately what March was attacked for. Because he believed that he could decided when Laci Peterson found out that she was pregnant on the basis of when she announced. We're attacking that, and yet the prosecution entire case is based on those kinds of suppositions. Suppositions like, Laci Peterson wouldn't have been walking her dog on December 24, because she would have been to tired from her pregnancy. Or that men with -- that have children on the way, you know, are going to be considering homicide with their wife simply to avoid the cost of that child.

That is what the prosecution's case is based upon. And yet we suggest somehow that Dr. March, because he's not a professional expert, because he's not somebody that spends his time in a courtroom, you know, gave us totally inadequate testimony, simply because he based it on something that he thought Laci Peterson would have done.

So, you know, yes, Mark Geragos is going to get up there in his closing and point out that this is a circumstantial evidence case, that the jury is going to be charged exactly on what the sufficiency of circumstantial evidence means. Guilt can't be found on the basis of circumstantial evidence, unless the evidence not only tends to prove guilt, but that it is also impossible to reconcile with any other rationale -- rational conclusion.

KING: I got you.

PIXLEY: Everything throughout the case has been -- there's been another side to everything presented here.

KING: Trent, the truth is, nobody knows what the jury's going to do, right?

We're looking into 12 minds, trying to guess what voters are going to do next Tuesday. The truth is, we don't know. If we think Kerry made a good case, we think he's going to win. If we think Bush (UNINTELLIGIBLE) -- who do you -- what do you think is going to happen?

COPELAND: Larry, I think you make a great point. Anyone who says they know what a jury's going to do hasn't tried a number of cases. You know, I think, Larry, to use the political analogy, I think what Mark Geragos was doing in the last days was sort of what a politician does in the last days of an election, sort of galvanizing, energizing his base.

Mark Geragos knows full well that there are probably some jurors on that panel who are on his side, who are going to vote his way. And I think what he's trying to do is give them ammunition, to give them information, to take back into that jury room sufficient enough so that they can make the argument, they can make the case for him with those other jurors who are not so inclined. I think that's really what Mark Geragos is doing these...

KING: Does the prosecutor do the same thing, hope that if there is a swing in the jury, that someone argues their side?

GRACE: Well, absolutely. But what Trent Copeland just said, Mark Geragos was energizing his base. That's ludicrous. The jury was actually, laughing, laughing out loud, Larry, at the OBGYN that took the stand, March. That's a very, very bad sign. It didn't energize his case, it destroyed his case.

KING: You're convinced they're going to find him guilty in a minute?

GRACE: I think that -- I'll go out on a limb. I think they will find Peterson guilty based on the evidence. And it's not all about the supposition that Chris Pixley's talking about. It's based on the fact that he is fishing in the spot where her body is disposed of. End of case.

KING: Chuck Smith, what do you think?

SMITH: Well, I agree with Senator Biden, I don't know what's going to happen. And I really don't. It really is up in the air.

This is a close case. This one could go either way. The closing arguments in this case will be terrifically important, because in a close case like this, in a closing argument, a warrior who does his or her job well can just figuratively bring those people onboard, to trust him or her, and to do what they ask the jury to do. It's going to be fascinating next week when we watch these closing arguments. These could be critical -- should be critical to the outcome of this case.

KING: We'll take a break and be right back to this outstanding panel. Don't go away.

(BEGIN AUDIO CLIP)

PETERSON: Hey, Joe.

JOE: Brother, what's up? PETERSON: I can't lose these private investigators

JOE: Ah, Scott.

PETERSON: I lost them and then set got me.

JOE: Oh Brother.

PETERSON: So, I don't think I should come play golf.

JOE: Where you at? Well, I don't want to ask you that, I guess. Scott, that just sucks.

PETERSON: I know. I mean, these guys know I'm on to them. I stopped on the highway and they stopped behind me. They're just...

I think I better skip. I don't think I'll want a picture of me in the press playing gold.

JOE: Yeah, no, I, you know, you're right.

(END AUDIO CLIP)

(COMMERCIAL BREAK)

KING: Richard Cole, will the judge give the jury an out to go murder two?

COLE: Yes, they will. I talked to everybody, and it's almost automatically done in these cases, unless there's some specific reason not to do it. But it -- as all murders, as I understand it, are consider murder two, unless they're upgraded to murder one. And so that means the murder two is included in it.

KING: Do you expect this jury to be out a long while?

COLE: The -- I don't believe so. I think that what's likely to happen is that there will either be a pretty quick verdict, like three or four days, or else there's going to be a hung jury, frankly. I mean, I don't think it's going to -- I think we'll either be out forever, or else we're not going to be out for more than a few days.

KING: Nancy, why are you so positive? You're the only one on the panel that is positive.

GRACE: Maybe I'm the only one who will say what they're thinking. You know, it's easy to sit back and say, it's up to a jury.

KING: Because you don't know.

GRACE: Well, of course not. But when I was in the courtroom, and I'll be back in the courtroom next week watching this jury, I saw people that I thought were defense oriented. I saw more that were responding positively to the prosecution.

And here's my experience with the jury. If you've got two or three holdouts, the rest will gang up on them and try to persuade them differently, if they can't, instead of a mistrial, I would predict a compromised verdict, such as murder two.

KING: Chris, what do you think, is murder two an easy out?

PIXLEY: You worry about that compromise. But I think that Nancy's right, it does come down to the composition of the jury. I don't think that there is any way you can divine what the jury is doing. Nancy's not necessarily suggesting that.

And I think she is used to being in the position of selecting the jury. That's where you have conversations with them. That is when you get to know them. And if there's anyone that really knows whether they've got jurors on their side or jurors that may be against them, it's the attorneys that were there selecting the jury originally.

You know, for me, I think there's no way to know. But what I hang my hat on is the fact that there is just no evidence of an intentional killing here. We don't -- we still don't know how, when, or where Laci Peterson was murdered. We don't know what instrument was used. We don't know how Scott Peterson ever could have sanitized the scene, whether it was his home or his warehouse or his car or his boat.

GRACE: None of that requires for a murder conviction, Chris. Beautiful speech, none of it relevant under the law.

KING: But the jury could think about it.

PIXLEY: And intentional killing, Nancy, that's what matters.

KING: Haven't juries surprised you?

GRACE; You know what -- yes, they have. But you know what, why do I need to know how she died. I know she ended up at the bottom of the bay...

KING: You may not need to know, but could juror 7 not feel the way you do? Could juror 7 say...

GRACE: But Larry, she ended up at the bottom of the bay. There's got to be a murder.

KING: Your logic. You may be a Bush fan. He may be a Kerry fan. And you don't understand why he's for Kerry.

Knoxville, Tennessee, let's grab a call, hello.

CALLER: Hello. And thank you for taking my call.

KING: Sure.

CALLER: If this ends in a hung jury, what new evidence can be submitted if it can, and what information will be retried? And thank you for taking my call.

KING: Trent, is there a new trial if it's a hung jury?

COPELAND: Yes, there is a new trial, Larry. I don't suspect that the prosecution in this case will allow Scott Peterson to walk. They will indicate to the judge by way of a motion that they intend to file a new trial.

And to answer the caller's specific question, any specific new evidence that is uncovered between the date of the hung jury and the date of that new trial is admissible in the court.

KING: Chuck, if they poll the jury and they find it was 11-1, Paul, either way, would that effect a second trial?

SMITH: You know, Larry, generally it does. Because the general rule for a prosecutor is is this -- if it's 11-1 for guilt, let's say, the prosecutor can legitimately argue that this was just one strange juror, so that the next time around, it is likely we will get 12 people to convict.

On the other hand, if the jury hangs, 7-5 for guilt, 6-6, split right down the middle, prosecutors have to make the decision, is there a reasonable likelihood that any group of 12 people can unanimously find this individual guilty.

And if the prosecutor, the elected D.A. cannot in good faith say that, his or her obligation is to say, we're not going to retry this individual. Enough is enough. We're not going to get 12 people to decide. So you're right...

COPELAND: But Chuck, you know -- Chuck...

SMITH: The way they split, will play a big role in deciding this.

COPELAND: Chuck, you know as well as I do, in a case as hotly contested as this one, as emotionally charged as this case has been for this community, you know as well as I do that this case will be retried, no matter what the split of that verdict.

KING: Nancy, do you agree?

GRACE: There's no way there will not be a retrial. Trent Copeland is right on that one.

KING: Chris Pixley, do you agree?

PIXLEY: Absolutely. And by way of reference, I would point to another high profile trial where there were two juries. We're talking about the Menendez brothers. They each hung. And of course, in that case. They were split down the middle. And that case was retried. Of course this case would be retried if this was a hung jury.

KING: Richard Cole, it's retried, will it be as closely covered as this first one?

COLE: Probably not as much. I wouldn't be surprised if it's retried if the death penalty were dropped. I think one of the things, if you remember when a juror 5, Justin Falconer came out, he made the point that you look at the evidence, whether or not you're supposed to, you look at the evidence much more carefully when it's a death penalty case.

You've got to remember, if it's a death penalty case, you don't have to -- you don't get a chance to do it over if they're executed. At least if you convict someone of second degree murder, and they're in prison, and there was a mistake, it can be corrected.

And he made that point. And if I'm the prosecution and I see a hung jury, I'm thinking maybe I would take the death penalty off the table and maybe make the jury breathe a little bit more easily about convicting a man of murder in a circumstantial case.

GRACE: Well, it's logical if you're not really seeking justice, if you're out just to dispose of the case.

KING: You don't think you could win because of the death penalty?

GRACE: I tried a lot of cases I didn't think I could win. It's not about winning or losing. It is about putting the facts to a jury and getting a verdict that you think speaks the truth.

KING: But you don't think you can get it with the death penalty, why ask for it?

If you think to yourself, I'm not going to get a death penalty verdict here, why try it?

GRACE: I could see -- I could see the prosecution cutting losses and trying this case again without the death penalty in order to get a conviction. But hold on, I say we're putting the cart before the horse. Can we wait for a mistrial before we plan second trial?

KING: The whole is supposition. No one knows what's going to happen.

Let's take a break and come back with more moments right after this.

(BEGIN AUDIO CLIP)

JOE: Any indication when they might identify these bodies?

SCOTT PETERSON: No.

JOE: No?

SCOTT PETERSON: I know, so much hype out there it's just insane. I also heard that they can identify them pretty darn quick -- two to three days, you know.

JOE: Oh gosh. Scott, I'm sorry about this?

SCOTT PETERSON: (UNINTELLIGIBLE).

JOE: Yes, that's what I think. I think they know already, but they don't know how to go about it, or they're telling them to retest it. I don't know.

SCOTT PETERSON: I think they're just holding off, they don't know who it is.

JOE: Who it is? Yes, that could be?

(END AUDIO CLIP)

(COMMERCIAL BREAK)

KING: Caller in Boca Raton. Hello.

CALLER: Hi. Hello.

KING: Hi, go ahead.

CALLER: Hi. My question is for the panel. But I just want to say first to Nancy, that I love you. And I think everything that you say on this trial is right on target. I wanted to ask if the jury finds Scott not guilty, but the judge feels like there's enough evidence for a guilty verdict, can the judge then overturn the jury's decision?

KING: No. Right? I think we're right there.

GRACE: No way. But they could do it in reverse. If the jury finds him guilty, he can do a judgment notwithstanding the verdict. But it would never happen, the reverse way.

KING: Not guilty is not guilty. And he could never bee -- he could walk out of the courtroom and say, I did it. And you can't do anything, that's -- that's double...

GRACE: Jeopardy.

KING: ... jeopardy. Do you expect a long close, Chris Pixley, by the defense?

PIXLEY: Yes, I think Mark Geragos needs to really bring home to this jury some of the points that he has been making, largely through cross-examination with the first 174 witnesses. And I do think it matters, Nancy and I disagree over the fact that there's no evidence of an intentional killing here. But that's certainly something that he's going to be focused on. I think he'll also going to be reminding them that so much of this evidence that came out in the prosecution's case in chief, this is a man who accompanied his wife to the doctor to check on the baby's progress the day before her disappearance.

It was a man who had renovated a room in his home and built a nursery for his child. If this is a case based on behavioral evidence, the jury can certainly dislike Scott, which is something that Mark Geragos pointed out in his opening. But, you know, the behavior cuts both ways here. And Mark will spend a lot of time pointing that out.

KING: Chris. And what does the prosecution have to do in its close, Nancy?

GRACE: The prosecution and defense have to lay it on heavy in front of this jury. Because I can tell you, firsthand, that you can weave a web and paint a story that captivates a jury, and Geragos, although I really think the defense fell flat, he has that ability. He's got the "it" factor. And there's a chance he could turn the jury around in closing argument.

KING: We going -- got less than a minute. Trent, how do you think it's going -- long closings on both sides?

COPELAND: I do, Larry. I think they're going to be pretty significant closings. And I think this court is going to be challenged to instruct the jury on Wednesday. This case may extend a little further into the week, maybe even Thursday or Friday. But if everything goes as scheduled as the judge has planned, I think we'll have a full day of a prosecution's closing on Monday, a full day on Tuesday. That's a lot for this jury to take in. I think they'll have to. I think both sides will...

KING: We're out of time.

COPELAND: They'll be very, very emotional. I think it will be a very, very long closing.

KING: Chuck, quickly, will the jury get to vote?

SMITH: Oh sure. Absolutely.

KING: Not on their guilt or innocence, on the election?

SMITH: Oh, I know. Oh, sure they will. There will be time set aside on Tuesday, so absolutely they will do that. That is the other great role that we have in our participatory democracy. Acting on the jury and voting.

KING: Two big decisions next week. Thank you all very much. I'll be back in a minute to tell you about tomorrow night.

(COMMERCIAL BREAK)

KING: Tomorrow night, we've got quite a panel. Bob Schieffer will be aboard, and Ann Richards, the former governor of Texas, and Dennis Prager, will come to us from L.A. and Mark Racicot, he's a very valuable edition to the Republican scheme of things. They'll all be with us tomorrow night as we close in on the election.

As we do that we close in on NEWSNIGHT with Aaron Brown. Aaron and I are going to have lunch tomorrow. Every problem know to the human race will be solved. And tomorrow night we'll let you know those solutions.

Right, Aaron, are you ready? 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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