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CNN LARRY KING LIVE

Latest Developments in Scott Peterson Trial

Aired November 4, 2004 - 21:00   ET

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


(BEGIN VIDEOTAPE)
UNIDENTIFIED MALE: Each of you must consider the evidence for the purpose of reaching a verdict if you can do so.

LARRY KING, HOST: Tonight, Scott Peterson's fate is now in the hands of his jury, after nearly five months of testimony. And we've got the woman who helped his defense pick that jury. Renowned jury consultant, Jo-Ellan Dimitrius joins us, along with CNN's Ted Rowlands on top of the story from day one. Court TV's Nancy Grace, the former prosecutor who is in court for the closing arguments. High profile defense attorney Chris Pixley, defense attorney Trent Copeland, he too witnessed the closing arguments. Chuck Smith, former prosecutor in the county where Peterson was tried and in court for most of the trial. And Richard Cole who covered the entire trial for the Daily News Group.

We'll also spend some moments with renowned forensic scientist Dr. Henry Lee and Allegheny County coroner, Dr. Cyril Wecht. Both consulted for the defense. Neither was called to the witness stand. Why not? We'll find out next on LARRY KING LIVE.

(END VIDEOTAPE)

KING: Good evening. We're back in Los Angeles and on top of the Peterson story. Before we get our guests all together, let's check in with Ted Rowlands, who is with us in the first segment only tonight, the CNN correspondent covering this from the start. What happened today?

TED ROWLANDS, CNN CORRESPONDENT: Well, it was a full day of deliberation for this jury. They started at 8:00 this morning and went till just about 4:00 this afternoon. Yesterday, they got the case and had about four hours together to start their deliberations. Of course they're sequestered so tonight they are at their hotel. They're not permitted to deliberate unless they're in the courthouse. So they have to just sit. Although they spend with each other and are allowed to spend time with each other, they can't talk about the case.

On the plate, they have first degree, second degree, or, of course, not guilty as their options here. Second degree was put in against the defense's requests not to put it in as an option. But the judge said that is on the table for them. Because there are two murders involved, it would carry a potential sentence of 30 to life so for all practical purpose, a huge win for the prosecution if they come back with that. We did learn today that juror number 5 is the foreman of this jury. This is the individual who has a degree in medicine and a degree in law. Many courtroom observers think thing that favors the defense, because he will inherently take the emotion away from it and be a legal consultant for the rest of the jury and help them through this.

Late today, the judge confirmed that they did ask to see some evidence. He said that the jury had requested to see some photographs that were part of the evidence. There's no indication how long this jury will be out. The stakes, of course, are huge.

Courtroom observers are divided on which way they'll go. The media is here in force awaiting their decision when and if they arrive at a verdict.

KING: Ted, two other quick things for you. How do we know the foreman?

ROWLANDS: Through multiple sources that today we learned one -- the jury asked for evidence in the case the identity of the foreman was released to the parties that are privy to that, and using our journalistic techniques, we were able to determine that the foreman is the one that everybody thought would be, juror number 5.

KING: And of course why shouldn't we know? What's the difference at this point? And number two, can they have a verdict on the weekend?

ROWLANDS: No. They're not to deliberate over the weekend. So at 4:00 on Friday or whenever they quit on Friday, if they've not come to a verdict, it will be Monday at the earliest that they can come back.

KING: Thanks, Ted. Hold on with us for a minute in case we have a closing question for you in this segment. Jo-Ellan Dimitrius, from the defense standpoint, are you happy with that selection as the foreman?

JO-ELLAN DIMITRIUS, JURY CONSULTANT: Very much so.

KING: Because?

DIMITRIUS: Because this fellow is a JD. He has both a JD and an MD and thinking back to...

KING: Those are degrees, right?

DIMITRIUS: Correct. He not only has the legal background to take a look at this case, but also the medical background. As you know, one of the big contentions in the case was the age of the baby Conner. So from a medical perspective, he may have more understanding of that than many of the other jurors on there.

KING: Do you know what they asked for today?

DIMITRIUS: I do know, but I can't talk about that.

KING: Because?

DIMITRIUS: Because I would be violating the judge's order.

KING: You're not under the gag order, right?

DIMITRIUS: I am to a certain degree. I can't talk about the specifics of what's happening with the jury.

KING: Have you talked to Mark Geragos?

DIMITRIUS: I have.

KING: Can you tell us whether he's upbeat?

DIMITRIUS: I think it's safe to say he's guardedly optimistic, as they say in politics.

KING: Based on what he knows of the foreman and what they asked for today? All the knowledge he has to this point, he's guardedly optimistic?

DIMITRIUS: Absolutely. I think in any case, where you've got a jury now that's been out for a day and a half, the fact that they haven't come back is certainly a good sign for the defense.

KING: How are you feeling?

DIMITRIUS: I feel the same way that mark does. I'm guardedly optimistic about what's happened so far.

KING: Are there any jurors, without naming this, who you are from a defense standpoint, worried about?

DIMITRIUS: That's an interesting question, because there's been a lot of speculation based on body language about many of the jurors in the courtroom situation. But I always say that that's a very dangerous proposition to look at solely body language, because I've been involved in cases where talking to jurors afterwards, where they know they're in that fishbowl, they're going to give off signs, because they know that everybody's watching them. Oftentimes, they'll just mess with the minds of the media and who is sitting in the courtroom.

KING: I had a friend argue a case before the U.S. Supreme Court and one of the judges just rammed him, killed him. Never asked a question of the other side. And he wrote the majority opinion in the guy's favor.

DIMITRIUS: Yes.

KING: So you never know.

DIMITRIUS: Absolutely.

KING: OK. Richard, what was your -- Richard Cole, what was your reading today?

RICHARD COLE, DAILY NEWS GROUP: Sort of -- I want to echo what Jo-Ellan said. I think that this juror number 5 being the foreman has to be cautiously good for the defense. On the other hand, they may have just picked him simply because he's an attorney and he knows the system and maybe it doesn't mean a lot more than that. But it could be. It's certainly not a bad sign for the defense.

The other thing is I do know, to some degree, what the jurors were looking at today. The judge did tell us it was photographs and on further inquiries to the same sources that Ted was talking about, what they were looking at was photos taken by the police the night of December 24, 2002, the night Laci disappeared. These are the first photos of the Peterson household.

Included among those photos, which -- I'll let the lawyers decide if this is good for one side or the other, was a clothes hamper that the defense made a big issue of. The reason they made an issue of it is because it apparently shows the blouse that Laci was wearing on December 23 and since she was -- seemed to have been dressed when she was killed it would indicate that she took her clothes off on December 23, went to bed, woke up on the 24th and was alive and was later killed. Which helps the defense. It doesn't totally mean that Scott Peterson didn't kill her, but it certainly helps the defense, because the prosecution has always implied she was killed the night of the 23rd or maybe smothered in her bed the morning of the 24th. This would indicate she was up and dressed and was not wearing the same clothes she was wearing on the 23rd.

KING: Ted, what is the buzz around the courthouse? Are they taking bets? You can say anything now. They're sequestered. They're going to come back with a verdict one way or the other.

ROWLANDS: Everybody has their opinion. People are obviously soliciting other people's opinion on when is it going to come down and which way is it going to go. But the fascinating thing about this case, and a lot of jury trials that are covered and a lot of jury trials, period, murder trials, there's a ton of evidence. You leave thinking this person's probably going to be found guilty. This one is going to be very close. It really could go either way. That's what most people think. The anticipation is huge, and the media presence is huge. Everybody just waiting. There's a sense of just waiting, you know. You can feel the sort of nervousness among folks that are covering it. Obviously, the families are going through hell tonight and will until there is a verdict.

KING: Thanks, Ted. Ted Rowlands on top of the scene. We'll be seeing Ted again probably tomorrow night. When we come back, with Ted leaving us we'll have our complete panel assembled. Don't go away.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: The focus to be on finding Laci.

SCOTT PETERSON: I had nothing to do with Laci's disappearance. Even if you think I did, think about Laci. UNIDENTIFIED MALE: Scott has not been forthcoming with information regarding my sister's disappearance, and I'm only left to question what else he may be hiding.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

KING: Let's meet our entire panel. Jo-Ellan Demetrius, the jury consultant, remains with us, president of Demetrius & Associates. In Redwood City, Nancy Grace, the Court TV anchor and former prosecutor. In Atlanta is defense attorney Chris Pixley. Here in Los Angeles, Trent Copeland, defense attorney who was there for closing arguments. Joining us now in Redwood City, Chuck Smith, the former San Mateo County prosecutor, six years in homicide. And staying with us is Richard Cole, covering the case for "The Daily News" group. Before we swing around the panel, Jo-Ellan, why aren't you under the gag order if you work for the defense?

DEMETRIUS: Well, I'm not talking at all about the specifics of the jury or what's happening back in the jury room. What I'm talking about is what generally happens when jurors go into a sequestration environment, because you know, I certainly had enough experience with that with O.J.

KING: So technically, Mark Geragos could come on and discuss that without discussing the case?

DEMETRIUS: I think so, yeah, absolutely.

KING: Even though he's a lawyer, right?

DEMETRIUS: Absolutely.

KING: And the fact that they got the weekend off from deliberating, does that cause them to rush on Friday?

DEMETRIUS: Well, I think that the only thing that would cause them to rush is what's been disseminated amongst the media, is that one of the jurors has an upcoming surgery. So, you know, that might be the other component. But again, this is such a serious case that my experience in any capital case has been, the jurors won't rush no matter what the situation is.

KING: They'll be out a while?

DEMETRIUS: Right.

KING: All right, Nancy Grace, let's start with you. What do you make of the day's developments? Learning the foreman and the photographs requested.

NANCY GRACE, COURT TV ANCHOR: Well, Larry, I am not surprised. I predicted to you on your show that juror number five would be the foreperson a long time ago. For a while, I thought it might be number eight, the teamster, but I stuck with five throughout. And the reason is not necessarily because he may have more degrees. Listen, you don't need a J.D. and an M.D. to know that Laci's body was disposed where Scott Peterson went fishing, OK? I think they can all understand that.

But this guy took copious notes, Larry. I wish you could have seen him. He was writing so fast I thought he would just keep shaking when he left the courthouse. I mean, he was flipping pages furiously.

And what does that mean? That means when a question comes up, they go to the source, the person that has obviously paid such close attention and taken such copious notes.

KING: OK, and what about the photographs?

GRACE: I always predicted that he'd be the foreperson. Photos, I'm not at all surprised they asked for photos of the scene of the night Laci went missing. As far as Richard Cole's theory that Laci's blouse -- remember, Richard, the blouse the jurors started crying over when they held Laci's blouse in their hand? The prosecution had a whole another spin on that, which was Laci was found in pants similar to the ones she was wearing the day before at Salon Salon. She had on her maternity bra and her underwear. Their theory is as she took her shirt off that night, the night of the 23rd, and put it in the hamper, it was at that moment or around that moment, as she prepared for bed, that she was killed. And that fits perfectly with the state's theory.

KING: That's their theory. Chris Pixley, what's your theory? What do you make of all this?

CHRIS PIXLEY, DEFENSE ATTORNEY: Well, one of the things that Nancy doesn't point out that Mark Geragos did point out in his closing argument on that issue is the fact that Laci's body washed up with an underwire bra on. And as he mentioned, he didn't know many eight- month pregnant women who wear underwire bras to bed at night. He also doesn't know very many that wear actual street clothes to bed at night. She washed up in tan pants, and her own sister said they're not the pants that she was wearing the night before.

So I think it was a good point that was made in closing argument by Mark Geragos, that you know, if a murder occurred, it had to have occurred -- if a murder was committed in the home, it had to have occurred on the morning of the 24th. There's been no evidence as to, again, as to how the murder occurred.

And I think, you know, these -- the things that the jurors are asking for right now are of particular importance, because at the end of the day, at least from the defense standpoint, you want the jurors to walk out of the jury room being able to say, "I know what happened to Laci Peterson." And I think the answer to that question is they don't. They don't know what happened to Laci Peterson. Prosecutors will tell you that's not important. You just need to know who did it. But how can you know who did it if you don't know what happened?

KING: Trent Copeland, of course, that's the essence for them to get at what happened, and they must be sure within a reasonable doubt, right? TRENT COPELAND, DEFENSE ATTORNEY: Beyond a reasonable doubt.

KING: Beyond a reasonable doubt.

COPELAND: Beyond a reasonable doubt.

KING: What do you make of -- Jo-Ellan thinks that it's good for the defense that juror number five is the foreman. Do you agree with that?

COPELAND: You know, I do think it's good for the defense, because Larry, look, he's a J.D., means he holds a juris doctorate degree. He is a licensed attorney. He's also a doctor. This is someone who is awfully intelligent, at least book-wise. And this is someone who took copious notes throughout the trial.

When I saw him, Larry, walk out of that courtroom when the judge instructed that jury, he had no less than a dozen notebooks. Some jurors only had one. Some didn't have any. He had no less than a dozen notebooks, and he was really someone who was dialed into this.

KING: So will he be the guide for the jury, in a sense?

COPELAND: I think he is. I have to agree with Nancy in this sense, that he'll be someone that the jurors will go to if they have a question. I think they'll also recognize that this is someone who is probably unbiased. He looks at it from both ends of the street. Lawyer, doctor, he's very critical of the evidence.

KING: "Twelve Angry Men" is back on Broadway, in which one guy held out. Is it possible, Jo-Ellan, before we ask Chuck Smith, that if this foreman leans toward the defense, that leans the jury toward the defense?

DEMETRIUS: Not necessarily. I mean, I've seen...

KING: They can go against their foreman?

DEMETRIUS: Sure. I've seen situations where -- the McMarton (ph) preschool case is a good example, where they had a foreperson who was leaning towards conviction, and they ended up acquitting the clients ultimately. So it doesn't necessarily mean that.

I think -- I agree totally with Trent in that this gentleman, number five, will take these folks very methodically through each one of the charges.

KING: And Chuck Smith, what's your read on all this?

CHUCK SMITH, FORMER SAN MATEO COUNTY PROSECUTOR: Well, first of all, Larry, you've got to remember, we're in California now, and we've taken gender out of the names. So it's not foreman, it's foreperson, and only Jo-Ellan and Nancy have been getting that so far.

But the foreperson, it's probably a good sign from the defense. Because the conventional wisdom from the prosecutor's standpoint is, you don't want lawyers on the jury, because lawyers tend to have a very keen sense and understanding of the concept of reasonable doubt.

You know, in a couple of weeks, on one of our shows, Mike Cardoza pointed out that if this is a jury that really is analytical and follows the law and takes emotion out of it, that favors the defense. And Michael was right.

And so now, we have a leader who is probably that kind of person. He cannot use his legal background and his medical background to provide new evidence or new facts. But he's probably going to be looked upon as a leader, and a foreperson is just that. He is the one who is charged with guiding the deliberations. He sets the agenda.

So it probably is a good point. But if I can just disagree with Jo-Ellan on a couple of things. A day and a half is nothing. There's no comfort for the defense that it's been a day and a half. And I guarantee you one other thing -- Mark Geragos is not guardedly optimistic. Mark Geragos is doing what we all do in this situation. He's absolutely dying inside. He's out of control now. He's sitting and waiting. And he's just dying.

KING: Well, you spoke to him today.

DEMETRIUS: I did speak to him today.

KING: How did he seem?

DEMETRIUS: He's not out of control. He's not spiraling down. He's doing what any good defense lawyer is doing. He's kind of, you know, getting back to his own life too. I mean, this man has been up in Northern California for five months. And, you know, he's separating himself temporarily from this situation and kind of getting on with life.

So he's not spiraling downward in any fashion whatsoever.

I mean, the bottom line is, none of us know what's happening back there, and, you know, we're speculating.

KING: We've been speculating for five months. But tonight is the height, since 12 people are in a room, and we don't know what they're saying. In fact, we don't even know, do we, what kind of notes he was taking. Maybe he's writing a book. Just thinking. We'll come back and I'll talk briefly with Dr. Henry Lee and Dr. Cyril Wecht, and then back with our outstanding panel. Don't go away.

(BEGIN VIDEO CLIP)

JUDGE ALFRED DELUCCHI: You must not be influenced by sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling. Both the people and the defendant have a right to expect that you will conscientiously consider and weigh the evidence, apply the law, and reach a just verdict regardless of the consequences.

(END VIDEO CLIP)

(COMMERCIAL BREAK) KING: We're going to spend a couple months with two of the most renowned forensic experts in America, indeed in the world, who were working for the defense but not called. Dr. Henry Lee is in New Haven, consultant for the Peterson defense team. And he is a founder and professor of the forensic science program at the University of New Haven. His newest book is "Cracking More Cases: The Forensic Science of Solving Crimes." And in Pittsburgh, Dr. Cyril Wecht, coroner of Allegheny County, consultant also for the defense. He was not called as well. He's author of the new book "Crime Scene Investigation: Crack the Case With Real-life Experts."

Dr. Lee, why didn't you testify?

DR. HENRY LEE, UNIVERSITY OF NEW HAVEN: Well, last Monday, I was in Redwood City with a whole night pretrial conference with Mark. And we did discuss the pro and con. And finally we decide he got all the answer from the prosecution expert. My examination basically confirmed the California and the Sheriff Department finding. There's nothing, no physical evidence whatever. There's no reason to put me on.

KING: So you would not have the defense nor hurt them.

LEE: Yes, would not help him, but there's a potential of prosecution come back with a hypothetical question.

KING: Could have hurt?

LEE: Could hurt. But, of course, defense, if they come up hypothetical question, may be helping them too.

KING: Dr. Cyril Wecht, why didn't you testify?

DR. CYRIL WECHT, ALLEGHENY COUNTY CORONER: Well, I would have related to the M.D./J.D. on the jury, and they were afraid he'd be excused for bias. I've been sitting here delighted to hear his professional background praised so much.

I think that Larry, my thoughts are very similar to Henry's. We discussed this analytically, calmly and repeatedly with Mark Geragos and Henry and I. He was in Pittsburgh for a terrorism conference.

The presentation of the evidence on direct would have presented the kinds of possibilities that had already been elicited from the prosecution's experts on cross-examination by Geragos. Could not have really improved upon that.

For example, a very important point, the doctor Brian Peterson, board certified, experienced forensic pathologist, who did the original autopsy stated he could not exclude the possibility that the baby had been born alive. I could not have done better than that.

On cross-examination, as Henry said, not that I think either he or I would have crumbled, but the opportunity for the prosecution to elicit probabilities, versus possibilities, and then to have opened the door to bring back their own people on rebuttal, something which I think they were precluded from doing if Geragos did not present evidence dealing with those specific points, i.e. forensic pathology, criminalistics, anthropology, et cetera.

So, I think that Mark made the right decision. It was painful one, in a way for me, and I think for Henry too. But I think that all of us thought intelligently and behaved maturely, although it was Mark Geragos' ultimate call.

KING: I imagine Nancy Grace might have a thought on this. Nancy, why do you think they didn't? Do you accept what they say? That they didn't add or detract anything.

GRACE: Well as they conveniently -- as Dr. Cyril Wecht, who I respect deeply, conveniently points out on cross-examination, the state's witness, Dr. Peterson said he couldn't rule out that Connor was born alive, but his studied opinion was that Connor was not born alive and was born as a result of coffin birth.

And it's my opinion is that when these two experts, Lee and Wecht, would take the stand, they may have to agree with the state's experts. And we saw how abysmally Dr. Marsh did on the stand for the defense.

Larry, you can't have two experts within one camp, 2 defense experts, give two different opinions. And if they went with Marsh's opinion, they would be faced with the same type of cross exam.

KING: Yeah, but you're talking here about two experienced pros. Dr. Lee, how would you respond to what Nancy said?

LEE: Well, I don't think that's a good reason. I respect Nancy tremendously and I like her very much. I've been through a lot of cases.

What we found, I did went to California 3 times. Dr. Wecht and me, we re-autopsied both bodies. We went to the crime scene, we checked the house systematically and meticulously. We didn't find any sign of violent, foul play. Which our result was consistent with the prosecution.

KING: So Dr. Wecht, it would seem you'd be called just for credentials.

WECHT: Well, thank you for the compliment.

KING: Why not?

WECHT: The painful thing here, from an intellectual standpoint, is the -- not the paucity, the absence of pathological evidence, the opportunity, for example, to be able to examine the baby's organs, the lungs specifically, microscopically as was done in the -- in New Jersey, Delaware motel case, in which I was involved.

I mean, we didn't have that because of the maceration, the postmortem decomposition of the baby's tissues. And so those kinds of definitive diagnostic techniques were not available to us. GRACE: Why -- I don't understand, Larry, why they're saying this. The reality is they were prepped to take the stand. Geragos did not call them, because they would not help the defense. I don't know what you guys are talking about? The reality is if Geragos could have used you and you could have helped Peterson, you'd have been called. You weren't. The reality is...

KING: Isn't she right? I'm sorry. Chris Pixley, as a defense lawyer, Nancy sounds right, doesn't she? You call these two great experts, they write books, they're renowned, they're seen on television, the jury would have to be impressed by them and you don't call them. What does that mean?

PIXLEY: And they're wonderful witnesses. And the absence of a star witness, or a critical piece of evidence for the defense case, I think, does weaken the delivery. But I don't know that I agree with Nancy when she says that they simply couldn't help the defense.

I think the problem was, they couldn't help the defense on this principle issue of whether or not Connor was born alive. And the main issue there, you know, the detracting factor is that Connor's body washed up in such a great condition. Nancy is giving me all these different looks, but the body came up and I think, in a condition that says it was a coffin birth and I don't think that Henry or Cyril were prepared to say otherwise. And in that respect, I agree with Nancy.

KING: I got a time problem. Quickly, Dr. Lee, how do you think the trial is going to come out, just as a guess. You're allowed a guess, aren't you?

LEE: As a scientists, I reserve my opinion. Wait an see.

KING: Dr. Wecht?

WECHT: I too have confidence in an M.D./J.D. I'll tell you, Larry, prior to the ruling by the judge that the jury could come in with a second degree, I would have bet anything that the worst would have been a hung jury. Now, juries, as we all know, will compromise their intellectual analysis of a case by coming up with a lesser verdict. And that's what I am fearful of. It's not going to be first degree with capital punishment. That is not going to happen.

KING: Dr. Henry Lee and Cyril Wecht. We'll come back with our complete panel. More of them, and more of your phone calls after this.

(BEGIN VIDEO CLIP)

SCOTT PETERSON, ON TRIAL FOR MURDER OF HIS WIFE AND SON: Watch the lamp.

QUESTION: Scott, why don't you answer some questions?

MARK GERAGOS, ATTORNEY: The fact of the matter is my client's the one in jeopardy, and I have a duty to defend my client. LEE PETERSON, FATHER OF SCOTT PETERSON: They don't like us saying our son is innocent. Is this still the United States? We're still in the United States?

Yes. (UNINTELLIGIBLE) the gag order.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

KING: Before we go to call, Trend Copeland, you say you think it's either going to be first degree or hung jury.

COPELAND: Yes, I really do, Larry. And I think...

KING: You don't think it's second degree.

COPELAND: I don't think it's second degree and the reason for that is because it's just not supported by the evidence. I mean, all along, the prosecution has said this is a premeditated murder. It's planned. He bought the boat, he checked the tidal waves, the currents. I mean, he planned all this before December 9th when the exchange with Amber Frey took place. In other words, this is a planned murder. And only first degree presupposes there's pre- meditation. I just don't think it will happen.

KING: Without giving anything away, Jo-Ellan, I realized you can't, are there certain people you're looking at as a veteran observer of this and selector of jurors, saying this looks good, this looks good, that looks good?

DIMITRIUS: Well, I haven't been in the courtroom since jury selection was complete. So I'm taking it off of, you know, what I hear in the media, what I hear from the team. But the bottom line is, I mentioned earlier is, you know, they're faced with a very difficult task. None of us, I mean, we would all love to be a fly on the wall right now, but none of us can second guess what's going to happen.

KING: Why didn't you attend the trial, since you attended the O.J. trial after picking that jury?

DIMITRIUS: I had other clients that took -- took -- what do I want to say, that I need to do take care of and whose trials I needed to work on.

KING: OK.

Chuck Smith do you agree with Trent that this is either a one way or the other case?

SMITH: No, agree with Dr. Wecht.

KING: That second degree doesn't fit?

SMITH: No. I -- I -- second degree does fit. Second degree is the default position on an unlawful killing. It is by definition a second degree. If the jury concludes that they just don't accept the prosecution's theory of premeditation and deliberation, they default to second degree. And as Dr. Wecht said, it's a natural way to bring on board some people who might have lingering doubts about did he do it.

KING: Got you.

SMITH: That's what's going to happen I think.

COPELAND: Yes, but Chuck, you know as well as I do, even though it's a default position, it isn't supported by the evidence. I mean, the prosecution has all along believed that this is a premeditated murder. If it's anything, it's premeditated. As a default position, that's simply a compromise position.

KING: You're saying it's a cop-out.

COPELAND: That's a cop-out, Larry. It's a position they would simply take as a means to bring people on board. As a means to find a consensus and unanimity amongst that jury, but it's clearly not supported by the evidence.

KING: What do you think, Richard Cole?

COLE: I agree that there's absolutely no evidence for second degree. The prosecution is stuck with premeditation, because it's the only way they can explain the total lack of evidence in the case. Basically, they're tied to that theory, because there is no evidence. And it's hard to come up with a scenario in which there's an argument or a fight or lack of premeditation that leaves absolutely no forensic evidence. No sign of a struggle, no blood, no fluids.

Nothing at all. Nothing in the truck. Nothing in the boat. Nothing in the warehouse. They went all over these things. They found no evidence. Now, you're pretty much have to believe that if he did it, he had to have carefully planned it. It's very difficult to come up with a scenario that they have a fight and he kills her and there's absolutely no evidence.

So I don't believe, by the way, that there is going to be a default decision. I believe from the fairly recently to, actually, fairly early in the trial that we'll get an acquittal or we'll get a hung jury. A lot of the people who think we'll get convictions have not been here every day. They haven't watched the jury. And I have to complement Jo-Ellan on the jury she picked as far as the defense is concerned. This is a defense jury. Many other analysts, rivals of Jo-Ellan have said exactly the same thing

KING: What do you base that on?

COLE: This is a very professional, analytical, middle class jury. I watched all of these people during jury selection. These are people who I believe really have a strong faith in the idea of the presumption of innocence. This was hammered away at. I think that Jo-Ellan and Mark Geragos did an excellent job and I believe that that's true, because halfway through the jury selection, the prosecution began changing its approach. And maybe Jo-Ellan can talk about that. By the end of jury selection, the prosecution was desperately trying to inoculate people to keep them from being knocked off the jury by Mark Geragos. And I don't know that they were successful in it.

KING: I want to ask Nancy something, would you agree, Jo-Ellan?

DIMITRIUS: I would agree. Richard, thank you so much the compliment. But I would agree that very clearly during the voir dire process is, again, it took two and half months. The prosecution learned from the wonderful skill set that Mark had and they really started to adapt and use many of the questions that he used.

KING: Nancy, how much of this case do you think is based on the feelings toward the defendant?

In other words, forget the case, that he's a low-life, that he fools around, that he does weird things, that he lies, which none of those things have anything to do with murder because there are a lot of people who fit all four categories and don't kill people.

How much of this case is depending on your not liking him?

GRACE: You're absolutely right, that does not bear on murder. But the prosecution dealt with all the theories you guys are talking about. And I really hate to break up the love-fest here, but there is evidence of violence, as Distaso pointed out to the jury. And that is, without even asking him, Scott Peterson divulged to a journalist the day Laci went missing, his hands were covered in scratches. And Distaso demonstrated for this jury and they were looking right at him, nobody looked away, how he believed that Peterson had Laci by the neck and she scratched and tried to live. And his blood is on his car from that day by his own mouth and on his bedspread.

Distaso brought that up, and when he did -- I would like to finish. And when he did the teamster, number 8, crossed his arms and looked at Peterson like he could hardly stand to look at him. And let me also remind you that when some of the defense witnesses were on the stand, the jury laughed at them. This is not necessarily a defense jury.

KING: So then to you, it's a slam dunk, Nancy?

GRACE: Um, no.

KING: Why not?

GRACE: I never in my life, even in cases that I won, called a case a slam dunk. You never know what a jury's thinking. You never know. I may look at them and guess, but I don't know.

KING: Presuming what their thinking. All right. You were going to say something?

GRACE: I'm presuming what I heard and evidence. COPELAND: Larry, if someone from Mars came down and watched LARRY KING LIVE and saw Nancy Grace on it, they wonder why we have things called trials because everyone is so clearly guilty. I mean, the fact is, and Nancy knows this.

GRACE: This is not a time for personal attacks. We're talking about this trial.

COPELAND: Nancy. Nancy, you know as well as I do, that clearly, that was only argument. That was part of Rick Distaso's summation. There was absolutely no evidence of presented of any struggle that took place between those two, Nancy. You've been there and you've seen this.

GRACE: His blood was brought into evidence.

COPELAND: Nancy, his blood -- his blood...

GRACE: His blood was brought into evidence. His blood was in evidence.

COPELAND: His blood was brought into evidence, Nancy. He's a fertilizer salesman. He works on farms. There was never anything...

GRACE: He's a salesman.

COPELAND: ...that ever suggested. He works on farms. He works around fertilizer equipment. He works around hard equipment. There's never been any suggestion...

GRACE: Fertilizer equipment?

COPELAND: ...there's never been anyone, Nancy, who has ever suggested there was a struggle in this case. Nancy, he's indicated that.

GRACE: He's a salesman.

COPELAND: So I don't it was summation...

KING: Let me get a call in. Port Richey, Florida, hello.

CALLER: Good evening, Larry. This call is for Nancy.

KING: Go ahead.

CALLER: Nancy, the judge allowed the camera in the courtroom for the jury instruction. Why not is it going to be allowed for the verdict and I want to say one thing. You did a great job on footsteps of Laci.

GRACE: Thank you.

CALLER: Thank you.

GRACE: I wanted the judge to allow the camera in at least to hear these closing arguments, which would dispel a lot of what we're talking about tonight. But I think that the judge just listened to the families on both sides. Neither of them wanted cameras in the courtroom. The prosecution and the defense, nobody wanted them. And he was not going to bend over backwards just for the media. I think that's why it happened.

KING: We'll take a break and be back with more phone calls on this edition of LARRY KING LIVE. Don't go away.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: If you find the defendant in this case guilty of murder of the first degree, then you must determine if the following special circumstances true or untrue, that the defendant, Scott Peterson, committed more than one murder in the first or the second degree in this proceeding.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

KING: We're back. By the way, let's congratulate -- the entire panel -- let's congratulate Jo-Ellan Dimitrius who will be married on Sunday, right? Verdict or no verdict.

DIMITRIUS: Verdict or no verdict. Absolutely.

KING: Pleasanton, California, hello.

CALLER: Good evening everyone. I've been in the courtroom on many occasions. And I always notice that Scott comes out smiling from ear to ear. I would like to know why is he the only one that does that when he's coming out? and the second part of this question is, does his brothers and sisters, do they ever go other than his sister- in-law and one brother? Thank you for taking my call.

KING: Ever go where?

CALLER: Pardon?

KING: Ever go where?

CALLER: Do they go to the courtroom?

KING: Chris, do you know?

PIXLEY: I don't know all of the members of the family that have been at trial. I know Janey (ph) is largely there.

KING: Chuck, you know.

SMITH: Sure. He's had all different brothers and sisters. Almost everyone was there, including cousins for the closing arguments, which was important. To answer the first part of her question, the reason Scott Peterson would come into the courtroom smiling, because his lawyer told him to. His lawyer told him to have that air of confidence, that air of comfort, every time you walk into the courtroom. That's precisely why he did that.

KING: Isn't that a thin line, Richard, between looking like you're happy when we're talking about the death of your wife?

COLE: Yes, but remember the jury's not in when Scott comes into the courtroom. So this isn't an issue of what the jury is going to see.

KING: So who is he doing it for?

COLE: Partly, frankly, I think his family is usually sitting in the front row and I think Scott's just trying to deliver that message, hey, I'm OK. It may be that it's just to make everybody in the courtroom sort of radiate for him. I don't know. But it doesn't have anything to do with the jury, because they're not in when Scott comes in. They're not seated until everybody, including the judge, is already seated. So they don't see that smile when he goes sauntering into the courtroom.

KING: Nancy, we know the defense is on pins and needles. They've got a man's life in their hands. What is the prosecutor going through, waiting for a jury in a capital case?

GRACE: I got to tell you something, Larry. This was the most difficult time during a trial. You know why? While you're putting up your case there's something you can do. You can go home at night. You can research, you can talk to witnesses. You can rehearse. When it's time for cross exam, you can spend the whole night preparing. What you're going to do to that witness for the other side the minute they get on the stand. You can give your closing argument. Then you hand it over to the jury and there's nothing you can do. It's out of your hands. You turn around, you got the victim's family right behind you waiting on you to pull a rabbit out of the hat and make it all good. It's a very big burden. And as far as why Scott Peterson is smiling, instead of wondering why he's smiling in court, I'd like to know why he's smiling at his wife's vigil and while he smilingly talks on the phone to Amber Frey. This guy smiles all the time. I don't know if there is a reason.

KING: Maybe it's a curious thing. Jimmy Carter smiled all the time too. Winnipeg, Manitoba, hello.

CALLER: With the high likelihood of a hung jury, which I understand would be a mistrial, I'm wondering what happens to the defendant. Does he go free, or does he stay in prison until it's determined he'll be retried? And I look for Nancy to answer the question, if she could. You're great.

KING: All right, Nancy, what happens?

GRACE: If there's a hung jury, the defendant will stay behind bars unless the state drops seeking the death penalty. Very rarely do you get a bond or bail if the death penalty is being sought. He will remain behind bars most likely until there's a retrial.

KING: Trent, if they polled the jury, this is hypothetic, and they're 11-1 for not guilty, would that tend the state to not retry?

COPELAND: In every other case, Larry, except a high profile case like this. Even though the case has invested a considerable amount of resources, substantial time and energy, you know, apparently Stanislaus County is in this thing for at least a half million dollars. This case will be retried no matter what the polling represents.

SMITH: I disagree with that, Trent.

KING: Who disagrees?

SMITH: I do. This is Chuck. Larry, we talked about this. If it's 11-1 for not guilty, the district attorney has to make a decision and has to make a decision that there is no reasonable likelihood that 12 people, any group of 12 people, will convict this man and despite the high profile nature of it, I just disagree that they would make a decision like that. Has it happened? I'm sure it's happened. I doubt it would happen in this case.

KING: Jo-Ellan what do you think?

DIMITRIUS: Whether or not they'd try it again?

KING: Yes. The hypothetic being that the majority were one way.

DIMITRIUS: I think I have to agree with Trent. I think they probably would retry.

KING: What do you think, Nancy?

GRACE: There are two dead bodies, one, a woman seven months pregnant. You're darn right. Whoever put her at the bottom of the bay will go back on trial.

KING: Well but what if it wasn't Scott?

GRACE: Well, they believe it is Scott and I think they will try him again.

KING: Chicago, hello. Chicago, hello.

CALLER: Hello.

KING: Go ahead.

CALLER: My question is for Chris Pixley. I'm wondering why he and Geragos seem to be so sure that Laci Peterson was getting undressed to go to bed and that's why the blouse was in the hamper. Why couldn't she have not been getting dressed -- I'm sorry -- undressed to go to bed rather than getting dressed in the morning to wake up?

PIXLEY: Well, look, he made an awful lot of good arguments about this. And, in fact, one of the things I think that was a strength of Mark Geragos' closing argument is the fact that when the state said we want to talk about behavior, he took it head-on and said, all right, we'll talk about behavior.

And one of the things he pointed out was all of the evidence that suggested that Laci Peterson, in fact, was still alive on the morning of December 24th. And it's not simply the fact that she had street clothes on that were different from those she was wearing the night of December 23rd. I think that fact is important, but it's also the fact that Marita Nava (ph), the maid was there the day before, had entirely cleaned up the house and cleaned up the bathroom. And yet all of Laci's things were back out again the next morning, including her curling iron.

GRACE: No.

(CROSSTALK)

GRACE: No.

PIXLEY: That evidence was presented in the case -- in fact, Nancy, yes, that was what he argued.

GRACE: That's not true.

PIXLEY: Whether you disagree with it or not is another issue.

GRACE: That's not true.

PIXLEY: But the fact is, as he pointed out, the curling iron was there.

GRACE: I was there, Chris.

PIXLEY: As he pointed out, her tennis shoes were missing.

GRACE: I was there, Chris, and that's not what happened.

PIXLEY: Am I saying something wrong, Nancy? Am I missing something?

GRACE: Yeah, you are.

PIXLEY: OK, please.

GRACE: Yeah, you're missing the state's rebuttal case. And the state's...

PIXLEY: I wasn't asked that. I was asked why Mark Geragos believes...

KING: He's only quoting the defense.

PIXLEY: That she was still alive on the morning on the 24th, and I'm telling the caller why she was alive on the morning of the 24th.

GRACE: But that's not true. The state brought out, in its final closing that yes, the maid did come and put away the curling iron. But then if you look at Amy Rocha's testimony, Laci got it out after that and took it to Salon Salon that evening, Chris, so they could teach her how to do something called a fun flip. So that is why the curling iron was out. And when I looked over at Geragos when Distaso brought that up, I thought he was actually going to get under the table.

KING: OK, well, apparently, he didn't. We'll be back with our remaining moments right after this.

(BEGIN VIDEO CLIP)

SHARON ROCHA, LACI'S MOTHER: Laci and her unborn child did not deserve to die. They certainly did not deserve to be dumped in the bay and sent to a watery grave.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

KING: We have a few moments remaining. We'll do more on this tomorrow. Chris Pixley, I understand, I'm told you're chomping at the bit. Chomp.

PIXLEY: Well, Nancy and I were talking about what's true and what's not true. And Nancy made the comment earlier tonight that there was evidence of violence that was presented during the trial. In fact, the prosecutors chose not to tell us what their theory of Scott's murder of Laci was until the closing argument. This idea of strangulation of smothering, the idea that somehow there was evidence of violence, that there's blood involved here. There's absolutely no forensic evidence. If Scott Peterson was bleeding, there is a cut on his hand that's shown to all the world on a videotape that was presented to the jury. He's explained it, and no one ever tried to say that there was evidence on his body of claw marks or of a struggle. There was absolutely no evidence in the home of a struggle. So if we're going to try to correct each other on this, I think we need to get that point out as well.

KING: Nancy, you want to counter?

PIXLEY: There was no evidence of violence.

KING: Nancy, is he right?

GRACE: Well, since Laci's body was decomposed, we'll never know. But the evidence of scratch marks on his hands, he showed that himself. There was his blood, just as he said, as he volunteered, that it came that day Laci went missing, just like O.J. and blood on their coverlet. Now, Chris, take it however you want to. But those are the facts.

PIXLEY: There wasn't evidence of scratch marks. Nobody called them scratch marks. The prosecution didn't even have the audacity to try to say there were scratch marks.

GRACE: He showed them.

PIXLEY: They waited until their closing to say, look, this is what he did, he smothered or strangled her.

GRACE: He showed them.

PIXLEY: It's like the rest of their case, Nancy, it's based on conjecture. Yes, he showed a nick on his hand. He didn't show any scratches. Did you hear the interviewer say, look at those scratch marks on his hands?

KING: More of this tomorrow.

GRACE: I saw his hands.

KING: Hang tough. Hang tough. We're going to bring them all back.

Thank you all very much. I think I'll be glad when this is over.

Earlier today, we learned that Elizabeth Edwards, terrific lady, wife of former Democratic vice presidential candidate, John Edwards, has been diagnosed with breast cancer. We know from her appearances on this show that Mrs. Edwards is a fighter with a very positive attitude about life. She's lived through a lot. We also know she has a whole lot of people pulling for for her.

Our thoughts are with Mrs. Edwards and her family. And we wish her only the best. I'll be right back.

(COMMERCIAL BREAK)

KING: Before we go, a quick statement from Walter Cronkite regarding something he said on our show last Friday regarding presidential adviser Karl Rove. Says Cronkite, "I deeply regret that the joke I made on the LARRY KING show Friday night about Karl Rove and the Osama bin Laden tape was misinterpreted to be a serious statement. I meant it only as a joke."

Tomorrow night, more on the Peterson case.

Tell you something that's not a joke. "NEWSNIGHT" is not a joke. "NEWSNIGHT" is serious stuff, and the man behind the desk is a serious guy. He doesn't do any jokes! He doesn't even risk a chance that something might be misinterpreted. He's straight arrow, he's our man, he's Midwest. He's a red stater. He's Aaron Brown. Go!

I don't know what I'm doing. I'm tired.

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