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CNN LARRY KING LIVE

Analysis of Latest Developments in Scott Peterson Trial

Aired November 9, 2004 - 21:00   ET

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


LARRY KING, HOST: Tonight, a Scott Peterson jury shakeup. Juror number seven dismissed after a hearing into possible misconduct, and replaced by a tattooed mother of four.
The judge tells the new jury to start all over again, from the beginning. What could this mean for both sides? We'll ask the two consultants who helped pick the jury. Jo-Ellan Dimitrius, who worked with Peterson's defense, and Howard Varinsky, who worked with the prosecution.

Plus, former Peterson juror, Justin Falconer. He was replaced back in June. CNN's Ted Rowlands on top of the story from day one at the courthouse today as well. Court TV's Nancy Grace, the former prosecutor, also at the courthouse. And Trent Copeland, high profile defense attorney. Plus Chuck Smith, former prosecutor in the county where Peterson was tried. And Richard Cole, covering it every day for "The Daily News" group. All next on LARRY KING LIVE.

Dr. Phil, who was due to be with us tonight, will be with us Thursday night for the full hour. There is no court on Thursday. Dr. Phil for the full hour on Thursday night. Tomorrow night, more on the Peterson trial, plus Dr. Andrew Weil.

Let's get right to it. Ted, sum up for us what happened today.

TED ROWLANDS, CNN CORRESPONDENT: Well, the judge replaced juror number seven. A source close to the case is telling CNN that another juror, quote, "turned her in," if you will, and the judge had no choice but to remove her from the panel. We understand, according to a source, that the judge brought in each juror one by one and interviewed them individually, and then made the decision that juror seven had to go, because she was doing some sort of independent research. That could mean that she just threw in a tidbit that she learned from the Internet or from a news source, but it was something that occurred in that jury room that after -- and after the investigation, it was determined that she had to be removed from the panel.

Now, she is replaced by the first alternate in this case, actually the second, because the doctor-lawyer was the first one, Justin was removed. This is a woman who is in her late 20s, early 30s. She is referred to by some as Strawberry Shortcake. She dies her hair different colors, sometimes a vibrant red. She has nine tattoos, four children, and has been very emotional during the trial, breaking down a number of times and crying during the autopsy photos, and even cried when Scott Peterson was crying in recounting his relationship with Laci in a Diane Sawyer "Good Morning American" interview. It is believed that this is a big win for the defense, if you will, getting her on the panel.

We also have learned that according to a source close to the case, the jury itself and the deliberation process is very contentious. There are a lot of emotion -- there's a lot of emotion in that room, and how this is going to play out in the end, it's tough to decide.

But for now, a new member of the jury is on the panel. And they have started deliberations with her starting from the beginning.

KING: Jo-Ellan, what can you tell us about juror number seven and did you advise picking her?

JO-ELLAN DIMITRIUS, JURY CONSULTANT: Juror number seven was somebody that we certainly thought could kind of go either way, and was one of those ones at the very end, when you're going through the process of jury selection, that you sort of say, well, you know, she'll be -- she'll be right down the middle, depending upon what the evidence is. So I think certainly from the defense perspective, knowing that the alternate coming in was a very good juror for us, at least initially we believed that. I think it's a pretty good exchange for us.

KING: Is that why Mark Geragos was reported as smiling today?

DIMITRIUS: Mark smiles all the time. But I think he would be a pretty happy camper.

KING: You think this was good news for the defense?

DIMITRIUS: I do think so.

KING: Howard, what do you make of juror number seven?

HOWARD VARINSKY, JURY CONSULTANT: Well, juror number seven I had straight down, too, right down the middle. I mean, what happens in jury selection is that there's people that you like and there's people that you dislike. Juror number seven, just straight down the middle, could go either way, fair, no baggage.

KING: So why did you both say OK to her?

VARINSKY: Because she didn't raise any flags. I mean, she just seemed to be somebody that was just going to be rational and straight whichever way she goes in the end.

KING: Are you shocked that she's removed?

VARINSKY: I'm not shocked by jurors anymore at all, ever. You know, they just do these things.

KING: Justin Falconer, do you remember her well?

JUSTIN FALCONER, DISMISSED JUROR: Yes, I do. Yeah, I do. KING: What can you tell us about her?

FALCONER: She was really friendly, she was really open. She's open-minded, professional, very intelligent, and I'm really surprised that she's off this jury. I mean, she's probably going through it now, you know, herself, and kind of wishes she hadn't done what she did. But when I was with her, she hung out with a lot of the ladies that would go to lunch together, and you know, occasionally, I'd have lunch with her. We'd always talk in the break room, and I just remember her as somebody who was very friendly, very outgoing. And she would speak her mind, you know, she was pretty strong-willed. But I had nothing but good things to say about her when I spent my time with her.

KING: Jo-Ellan, what did she do? Why is she off the jury?

DIMITRIUS: You know, we don't know for sure what she did.

KING: Wasn't Mark told?

DIMITRIUS: I'm sure he was. But...

KING: You didn't talk to him today?

DIMITRIUS: No one's been able to get ahold of Mark. He's been bombarded and (UNINTELLIGIBLE).

KING: They have to tell the lawyers, don't they, why?

DIMITRIUS: Right. The lawyers are there, both the prosecution and the defense team are there, as was Scott. And each one of the jurors...

KING: So can you speculate why she would be removed?

DIMITRIUS: Well, it had to have been something that she said to the other jurors. We have heard rumors that it was some sort of research she did. We don't know what type of research.

KING: You can't do independent research in these...?

DIMITRIUS: No. Absolutely not. You're only, as a juror, allowed to deliberate on the information that's presented in the courtroom. And by doing that, and each one of the jurors being brought in, I think that Judge Delucchi wanted to make sure that everybody heard the same story.

KING: I see.

DIMITRIUS: So my guess is the judge asked what did this particular juror say?

KING: In other words, (UNINTELLIGIBLE), in the jury room, I can't say, listen, a couple of weeks ago I spoke to my friend who's a lawyer in Baltimore, and he told me that. VARINSKY: No, you can't. Right, you can't do outside research. Everything has to be from the witness stand, everything has to be in testimony. You can't go to a dictionary, you can't go to an encyclopedia. But one thing, you know, more that the judge had to check out, which is that she didn't talk about her research to other jurors, because then it really would have been tainted.

KING: So she could do the research, if she wishes.

VARINSKY: No, she can't do the research.

KING: Can't even do the -- you can't even do the research.

VARINSKY: Right. And I'm sure what the judge had to find out was, one, what research did she do, did she tell the same story to everybody. And also, did she then -- how much of the research did she disseminate to the other jurors, because that's the key.

KING: Did the other jurors, Ted, to your knowledge, complain about her? How did the judge find out?

ROWLANDS: Well, according to a source, a juror complained about her. It was probably relayed through the foreman. But which juror it was, we're not completely sure, who complained about her. And at that point, the judge brought them in one by one, and it seemed as though -- you can speculate that the judge got the same story from enough of the jury to make the decision to remove her from the panel. So that the complaint was at least at its core valid, that she did violate some rule. But we don't know if people were complaining specifically about her in terms of her deliberative process throughout this (UNINTELLIGIBLE) or not.

KING: Is there a gag order on her now?

ROWLANDS: Yes. The judge has kept the gag order on her. She went home this evening. As she zoomed into her garage immediately, did not come out at all. A member of her family said that they're not talking at all. And she is under the gag order. So we won't be able to learn exactly where she was until this trial is over or until the verdict comes in.

KING: We know that she zoomed in her garage, because, what, we followed her home?

ROWLANDS: I don't know how we know that. But I saw some video of it, of her coming in...

KING: So there had to be someone with a camera. Someone with a camera.

ROWLANDS: Presumably so.

FALCONER: You know, I got a call on that, and somebody called me and said that they were actually there, waiting to see her or something. And I want to tell you something, that's exactly why I went out to that podium. She didn't have that luxury, because somebody told me that if I didn't, all those satellite trucks were going to be parked on my street. And they just proved it, because apparently all those trucks are on her street with police and everything else. So she's right now, she's regretting whatever she did. And she's really -- she's not in a good place.

KING: If there is a gag order, why are they bothering her?

DIMITRIUS: Well, obviously, I suspect the media thinks that at some point she may just, you know...

KING: Give up.

DIMITRIUS: ... cave in and say, oh, oh, let me tell you about everything that happened in that jury room. And that for us, for Howard and I, is really the tragedy in something like this, because the media, so many of them know these people's cell phone numbers even before we know what that information is. And we're not protecting them.

KING: We'll continue with Ted Rowlands, Jo-Ellan Dimitrius, Howard Varinsky and Justin Falconer, and we'll be joined by Nancy Grace, the former prosecutor, and Trent Copeland, the defense attorney, get their views of all of this. We'll be taking your calls later, all right after this.

(BEGIN VIDEO CLIP)

JUDGE ALFRED DELUCCHI: The people and the defendant are entitled to the individual opinion of each juror. Each of you must consider the evidence for the purpose of reaching a verdict, if you can do so. Remember that you are not partisans or advocates in this matter. You are impartial judges of the facts.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

KING: We're back and the panel is joined now in Redwood City by Nancy Grace, the Court TV anchor and former prosecutor and in Los Angeles with defense attorney Trent Copeland.

What's your read on all this, Nancy?

NANCY GRACE, COURT TV: Well, I think that it's hard to determine right now. But if we look at it realistically, we know the juror taken off the jury and reports are surfacing around the courthouse she did communicate with the other jurors what her research was, could have been as simple as a phone call, Internet research, anything. And that allegedly, right now, we're hearing it was juror number 8 that brought it to the attention of others, the teamster.

Number 8 is a very firm juror. We apparent -- we understand that he sticks to his guns. And if he heard something like this, would report it. And the reason I'm saying this about juror 7, Larry, is I went back to research what she had to say when she was first put on that jury. Three red flags for the prosecution. One, I haven't seen anything about a motive that would prove to me he would do something so heinous. That's what she said before she heard a fact. Number two, she has already served on a civil jury, in which she found for the defendant, the civil equal of Scott Peterson. And third, she said she would never give in to pressure from other jurors.

All three of those reasons are good for the state in getting her off. Now, this alternate, a strawberry shortcake, one day her hair is red, the next day it's eggplant, the next day it's vibrant pink, that's where she got the nickname. She's an unknown quantity right now, so it could all work for the state.

KING: In the civil case though, isn't the plaintive the equivalent of the defendant?

GRACE: In a civil case the plaintive is the one accusing someone of something.

KING: She would have voted for the insurance company in a civil case?

GRACE: She did vote for the defendant in a civil case.

KING: That's the insurance company.

GRACE: Depends on who is suing who.

KING: Yes, that's right.

What do you make of today, Trent?

TRENT COPELAND, DEFENSE ATTORNEY: Well, look, it's interesting Larry, that Nancy would be so presumptive to think that in a civil case, where the standard of proof is preponderance of evidence and the jury doesn't have to vote unanimously, it can be 9 to 3, 10 to 2, we don't know whether or not she voted for the plaintive in that case or the defendant. So, we just don't know.

I still believe she is probably someone who the defense would have probably preferred to kept on this jury. But alternately, Larry, you know, there also being -- this juror is being replaced with a juror that I think the defense could be equally happy with. I mean, look she's a mother of 4, this new juror. She's relate to Laci Peterson, obviously, but at the same time, she cried when Scott Peterson cried in that "Good Morning America" interview. I mean, she's someone I think probably looks straight down the middle. And if you're going to side on either side of the occasion, I think she's probably a little bit more of defense juror.

KING: By the way, I'm told, that CNN did not follow number 7 home, but affiliates followed her home, 7,432 affiliates follow them.

GRACE: It wasn't me, Larry.

KING: Affiliates of Musco (ph) TV followered her home. (UNINTELLIGIBLE) TV, but CNN did not follow her home.

Any -- any -- I'm starting to twirl me.

Justin, did you -- do you know the new juror?

FALCONER: Yes, I do. She's -- she's a really outgoing person, too. She's got -- got a great personality. She's a very -- she speaks her mind. And you know, I think she could relate. She's a mother of four boys, so she can probably relate to Mrs. Peterson, Scott's mom, so, you know, I think she is a defense oriented juror.

When I was -- you know, when I was in the jury, she was very outgoing. She was very fun to talk to. And she was usually kind of the life of the room at a lot of times. So...

KING: When you got to start all over again, Jo Ellan, what does that mean?

Start all over again?

DIMITRIUS: The jury has been instructed by the judge.

KING: But 11 have already talked about.

DIMITRIUS: Well, I know, and that's always an interesting issue. Because you wonder if they just bring a new person, and say, so we'll tell you what we think, and how about you participate?

KING: Isn't that the way -- I mean, what are you going to do? How do we start all over again? We're...

DIMITRIUS: Well, that's just it. I think it's some what ludicrous to think this jury is going to say, well, let's just go all the way back to where we were Wednesday and start.

KING: Howard, what do you think?

VARINSKY: It's a quick review. I mean, they don't start from zero. I mean, it's a quick review.

KING: (UNINTELLIGIBLE) tells you we're probably not going to have a verdict this week.

VARINSKY: You'll probably not have a verdict this week. That's right.

KING: Ted Rowlands, when they say start from the beginning, what does that mean to you.

ROWLANDS: Well, you know, I think that I agree with Jo Ellan and Howard. I mean, lets be honest, these 11 folks have been at this for so many hours, that they're going to bring her up to speed. I think they'll give her the short course on it. Just to explain to her where they are, they'll go through it. The X factor is, you do have this doctor/lawyer on panel who's the foreperson and he may put them through it all again. And say, you know, this is the proper way we're supposed to do it by law. And they may go through each piece of evidence again and rehash it out. It's safe to say, it's not going to take as long to get where they are now just bringing her into the fold.

KING: Nancy, would you say it unlikely that there's a verdict this week.

GRACE: Well, they're not deliberating on Thursday. So, I would say, that the soonest we're going to get a verdict would be Friday afternoon. And you've got remember, this jury is looking at another weekend of being sequestered, no family, no friends, no news, no newspapers, all alone. They can't deliberate. They're snugged up in some hotel, I only hope they've got a mini-bar, because their going to need it. Another weekend away from their family.

KING: So, you can't pick when it's -- how can we (UNINTELLIGIBLE) it's all speculation, right Trent. How the hell do we know? What if it's 6-6 and they're arguing?

It could be another three weeks.

COPELAND: That's exactly right, Larry. But you know, at the same we could find that this juror who is very close to unanimity. We could found that the juror that was recently replaced was the holdout juror. She may be the one who was creating the log jam. And this new juror may slide into this and may form a consensus fairly quickly. I don't think that will happen given just how strident the given all the judge's previous admonitions to this panel. But we really don't know.

KING: Justin, it's all just guessing at this point, isn't it Justin?

FALCONER: It really is. You know, it depends on how many people were for what. I don't think she's going to fold easily, I really don't. I think if she's going to -- if she feels a certain way, she's going to stick to her guns. And she is emotional, but I think she's pretty strong, too. I mean, from what I've known of her, she's not going to just fold. So, I think it could be a while.

KING: When the jury's sequestered, where are the alternates, Jo Ellan?

DIMITRIUS: Well, the alternates are sequestered as well, they just don't go back in the jury room...

KING: When the jury -- when they go into the jury room, where are they alternates.

DIMITRIUS: I think, they're taken back to the hotel.

VARINSKY: They're hanging out.

KING: Do they stay in the hotel all day?

VARINSKY: Yes. You know, there's an interesting thing though, the person, you know, on juries what you see when there's an obstinate juror, when there's somebody turns somebody in, it's never somebody on that juror's side, it's somebody in opposition to that juror. Which, you know, whoever turned her in...

KING: He wants her on his side.

VARINSKY: Whoever turned her in wants her off.

KING: Yes, wants her off.

VARINSKY: That's right.

KING: We'll take a break and be back with more.

And when we come back, Richard Cole will join us. He's been covering this for "The Daily Newsgroup."

At the bottom of the hour we'll start to include your phone calls.

And also joining in a while will be Chuck Smith.

Don't go away.

(COMMERCIAL BREAK)

KING: Justin Falconer has left us, and we always thank him for his contributions. They are never dull.

Joining us from Redwood City is Richard Cole. He's been covering this case for "The Daily News" group including "The Redwood City Daily News." He is a veteran crime and trial reporter. What is your read on these events that keep occurring?

RICHARD COLE, THE DAILY NEWS GROUP: Well, it's certainly the sign of dissension on the jury. I believe Nancy was correct, that the complaint today came from juror number eight. That's the kind of burly teamster, night worker, who was very isolated from the jury. I'm sorry Justin's left because I thought maybe he could talk a little bit more about that.

But I think also, the juror -- the same juror was the one behind the complaint that stopped the trial yesterday, when the judge had to bring in the jury and reinstruct them.

I think he was the one who was complaining that somebody wasn't deliberating in the correct fashion, and there may have been other complaints that have not been made public yet.

In other words, the man seems to want to make his presence felt on that jury. Now, does that indicate that this jury is so bitterly divided that they're trying to pick each other off? I'm not sure about that. It may be just the case of a man who wants to make his presence felt, who didn't do that very much during the trial itself, didn't mix with the other jurors, and now is making some space on that panel. And maybe when that's all worked out, when everybody feels that they have got their roles down, then maybe they can get on to finishing the deliberations and reach a verdict. One of the things that was mentioned, you know, is Strawberry Shortcake, or Pippy Longstocking, which she's also been called, is she pro-defense or not. For those of us who watched that panel, there were two jurors that we thought, after Justin left, would be the ones who were leaning most towards the defense. That -- one was number six; that's the Halfmoon Bay firefighter, paramedic. This is just -- we're reading facial expressions. I want to make it clear, these people never communicated anything.

And the other was Strawberry Shortcake. We thought these were the two people who seemed to react best to the defense, and I am certain that the defense believes that -- although they had nothing against juror seven, that they believed that her replacement by Strawberry Shortcake is an upgrade for them, I think is the way I'd put it.

KING: I got you. Nancy, we know that Jo-Ellan wasn't present when juror number eight was allowed to come on the jury. Do you think that he -- this is just guessing, is inclined to the prosecution?

GRACE: Eight, the teamster? I am convinced after watching him, Larry, I am convinced that he is pro-state. And regarding juror number eight, the teamster sitting on the front row, I've watched him myself, Larry, when a portion of Scott Peterson's tape was playing during closing arguments. He stuffed his hands down in his windbreaker and he looked over at Scott with such animosity and such disgust, it was evident.

Now, another thing about juror number eight, if you look back at what he said in voir dire, Larry, and I looked it all up this afternoon, since this jury issue had come up -- he said he lives with roommates since his divorce, and they think Peterson is guilty.

Now, another thing Richard Cole said about juror number eight I don't think is necessarily fair. He's portraying juror number eight as if he's beating his chest and making his presence known. Listen, Judge Delucchi questioned the jurors and questioned the dismissed juror. He wouldn't make this decision based on the saying of just juror number eight. So if eight was the one that complained, he was right.

KING: Now, we say if. This eight being the one that complained, Ted Rowlands, that's purely speculation. We don't know that eight was the one, do we?

ROWLANDS: Well, a source close to...

KING: Do we or don't we?

ROWLANDS: I'm not quite sure. Richard is reporting it. I don't have that. But Richard says that a source close to it is that eight is the one that turned juror number seven in for what happened today.

So yeah, I guess Richard has it from a good source, so that's where it started. But you know, Nancy's right, we don't know what happened. We don't know what it exactly was, and we don't know the way that he turned her in. He may have just been doing due diligence and doing his job, really, because the judge did vet this out by interviewing everybody, and something obviously happened.

KING: What would you -- Trent, what would you from a defense standpoint guess? We're all fluent in guessing, that's all we're doing.

COPELAND: You know, Larry, I have to agree with Ted and Nancy. I think this was probably something that stemmed from juror number eight, having a problem, a beef, if you will, with this juror. And I think clearly, that -- I don't think, frankly, unlike Richard, I don't think that there was another incident involving another juror that caused the judge to give that original admonition about play nice, which in California is a 1740 admonition, which is really, you know, play nice, get along with each other, go back to deliberating. I think all of this stemmed from this one singular juror.

(CROSSTALK)

KING: What might she have done, Howard? What's a good guess?

VARINSKY: Juror number six -- juror number seven? She either went to the Internet. She either went and looked at a boat that was the same size, she either visited the bay. I mean, she did some sort of independent research and came back and reported her findings.

KING: In other words, you're not allowed to learn more?

VARINSKY: You have to get all of your evidence from the witness stand. And from no extraneous sources. You're not allowed to know more.

KING: So in other words, technically, Jo-Ellan, you're asked to live in a vacuum?

DIMITRIUS: Well, you are asked to live in a vacuum. And we also don't know whether or not this was something that was done just recently, or perhaps was done a while ago, that she just chose to share right now.

KING: Probably was something -- when they went home, before they were sequestered. Juror number three is sitting at home, and his or her uncle calls and says, I think he didn't do it, or I think he did it. What is she supposed to do? Hang up? What? Does she report that to the judge? My uncle said. No, what do you do?

DIMITRIUS: Well, I mean, technically, if it's a really reasonable juror that has listened very carefully to the judge's instructions, she would tell the judge the next day or tell the deputy that would tell the judge. But I mean, people are people, and these things happen all the time.

VARINSKY: Or tell the uncle, hey, I can't talk about this. KING: And stop it right there.

VARINSKY: That's exactly right.

KING: We'll take a break and come right back. Chuck Smith will join us. We'll be including your phone calls in a little while, too. Gets curiouser and curiouser. Don't go away.

(BEGIN VIDEO CLIP)

DELUCCHI: You must decide all questions of fact in this case from the evidence received in this trial and not from any other source. You must not independently investigate the facts or the law, or consider or discuss facts as to which there is no evidence. This means, for example, that you must not, on your own, visit the scene, conduct experiments, or consult reference works or persons for additional information.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

KING: So, we are fairly balanced. Chuck Smith, the former San Mateo prosecutor, six years a homicide prosecutor now in private practice will be with us this segment only, then we'll take calls for the remaining members of the panel.

So, Chuck, what's your read?

CHUCK SMITH, FORMER SAN MATEO COUNTY PROSECUTOR: OK, a few thoughts Larry.

First of all, I agree with Richard Cole, juror number 7 clearly was enamored with Mark Geragos and the defense during the trial. I'm a little bit of amazed to hear both Jo Ellan and Howard say, they each had her middle of the road. I mean, one them is clearly wrong. I can't believe she was on the A list for both sides. So, what do we pay these jury consultants for.

First of all, I also disagreed that juror number 8 should be made the bad guy here and the snitch. I think the person who reported the misconduct yesterday and the misconduct today, was the foreperson. He's a lawyer, he knows the rule. Juror number 8 is a teamster. I doubt that he knows the finer points of what's proper or not proper.

The other point I wanted to make is don't be too hard on excused juror number 7. It is natural human nature to want to know more. She clearly wanted to know more. She was probably not malicious in bringing to everyone else's attention other information. She wants to solve this thing. The prosecution overall can't be happy with these events. The turmoil that's obviously going on.

The last point I want to make is, what might happen and the dynamic that sometimes happens when we get a new juror like this, is each side pitches their case to the new juror and she becomes like a mediator or an arbitrator. She sits there and says, well, they make sense with that point, why don't we consider that. So, the dynamic can clearly change. This is the only comfort that the prosecution can take in this whole affair is maybe the dynamic will now change because they need consensus. They need all 12 on board for guilt. All these things that have happened clearly indicates something else is happening.

KING: Let's get the thoughts of the panel on what he just said.

Nancy, you first.

GRACE: Well, number one, when I would have a juror thrown off a jury for whatever reason, I would be thrilled if it were a defense related juror. You can tell, Larry, when you argue to a jury, when you look at them in the eye, their reactions, whether they agree with you or disagree with you. So, Chuck in my mind it's way off base saying the state is unhappy with today's turn of events. They are probably happy to get 7 off and take their chances with Strawberry Shortcake. She's an unknown. Got to remember, Chuck, she was crying when Laci's blouse was passed around that jury. Sure, she cried when Scott Peterson cried. She cries all the time. She cries all the time.

SMITH: Number 7 -- Number 7 by background, by occupation, by age, number 7 in every single way was a prosecution oriented juror, by occupation, by age, by maturity. She...

GRACE: Go back and look at what she said in voir dire.

KING: Please, don't interrupt. OK. Jo-Ellan, what do you think of what Chuck said?

DIMITRIUS: Well, I think to have said that both Howard and I had her as, A, jurors is not -- is not in fact what it was. We both had her as what we call a middle of the road juror that could go either way depending on the evidence that was presented.

KING: So, that covers you both. Neither of you could be wrong or right. However she votes, you're neither right nor wrong.

VARINSKY: That's right. We had her as -- we had her as non- (UNINTELLIGIBLE), non-strike (ph). She didn't rise to one or the other.

KING: Trent.

COPELAND: I'm frankly surprised to hear that from jury consultants, because I might be asking for a refund if you didn't know where you wanted to put this juror.

DIMITRIUS: That's what (UNINTELLIGIBLE) for a pro bono, so.

VARINSKY: We put her in the middle, is where we put her.

COPELAND: But look, I do understand. I think there are categories and I've worked with jury consultants before, none quite as esteemed as the two sitting next me. But I'll tell you, sometimes you simply can't fit a particular individual in a particular category. And if they're not hurting you don't particularly think they're not helping you either, so you simply have them in there as a wash.

KING: Is it true, is not Trent, talking to many, many defense attorneys over many years, juries always surprise you?

COPELAND: Juries always surprise you. I think right now, if we're thinking that this new juror, former alternate number 2 is going to be for the defense, we might be surprised. I mean, because frankly, you know, I -- if I'm the defense, I'm more concerned about -- if I'm the prosecution, I should say, I'm more concerned about juror number 2, who had to consult his priest. He had to consult his priest before he came aboard in this case, and said if he voted for the death penalty, he just didn't know whether or not he could sleep at night. I mean, that's the juror I'd be focusing on. If I was, you know, the prosecution, I'd be very concerned about that juror. But again, that could be a defense juror. We're just speculating, Larry, we never really know.

KING: Ted Rowlands, where -- I know you can't tell me sources, but if the jury's sequestered and then their in the jury room, and then they come out and meet with the judge, how do you learn things?

ROWLANDS: Well, it's sources. You know, they are...

KING: Who, the wall?

ROWLANDS: There are people around -- well, you know, there are people privy to the information. And obviously, the attorneys are privy to it and they talk to people that are close to them. The judge is privy to it. There are other people that come across information. You'd be surprised.

KING: Nancy, have you ever leaked?

GRACE: Absolutely not. I'm a lawyer, and we are trained never to divulge confidences.

KING: Never. Trent, would you leek.

COPELAND: I wouldn't leek. I find it hard to imagine the prosecution hasn't leaked certain information in this case. There have been a number of matters and instances in this case.

KING: What I mean leak, what you might learn from what the juror said to the judge?

COPELAND: No.

KING: You would never?

COPELAND: We Would not do that, Larry.

KING: Chuck, your over view now before -- where is this going?

Will say verdict is going now -- definitely going to wait until next week?

SMITH: Oh, I think it's definitely going to wait until next week. I mean, none of this events are good for the prosecution. I mean, this is not the way it's supposed to go for a prosecution. So, who knows. I mean, I'm more and more thinking this may end up to a hanged. Because there certainly seems like there are two strong camps back there, which is -- looks like we're on the road to a hung jury.

KING: Richard Cole, what do you make of what Chuck said?

COLE: I wish I didn't agree with him. Unfortunately, I'm seeing some of the same things. I don't think you get this kind of animosity on a jury and then -- and then get it back together. However, my older brother, Jeremiah (ph) was foreman of the Steinberg jury, if you remember that case from New York, lawyer that was recently released.

KING: Sure.

COLE: And there was the same kind of animosity on that jury. He was the foreman, and at one point, actually, he finally stepped down because one guy was so angry at him, that that was the only way they could reach a verdict. So, even though they had that kind of animosity, they did find a way to moved the people around to accommodate people's feelings, so that they could do it. And it's still possible in this case I believe. I think it's hard. I wouldn't be betting any more for a verdict, as I was originally a week or so ago. But I still think it's possible. I don't think anyone's given up yet. The judge has not yet read the Moore Instruction or the instruction that follows that one, so, that's kind of a positive sign. At least they're working together.

I had a question for Jo-Ellan and also Howard. Is it possible hypothetically that certain jurors were left on deliberately to hang this jury before the defense realized that maybe they had actually a good chance to get an acquittal out of it?

VARINSKY: Well, I think that's a question for Jo-Ellan more than for me.

KING: Jo-Ellan.

DIMITRIUS: Yes. No. I don't think there was any juror that was -- that we looked at as a possible hang. I mean, you look for -- at least I look for 12 individuals that you hope will come -- will come your way. The only person that for me was an unknown is the infamous juror number 8. Now, because unfortunately, I wasn't in court the day he was voir dired.

KING: Yes. Chuck, you want to make a point.

SMITH: Could I just make one more point about a hang? The magic number is three. If there's only one person on the other side, usually they're brought around. If there's two, most of the time. But the magic number is three. If there's three people dissenting from the other nine, whether it's guilty or not guilty, that's usually the magic number. They can hold together and withstand the majority. So a lot of us are saying, if it's going to be a hang, it's going to be 9-3 one way or the other.

KING: Trent?

COPELAND: You know, very quickly, Larry. You know, I think it's way too early. I think all this speculation about dissension in this jury is way too early. Let's put this in context. This jury has only been deliberating five days. The Menendez jury deliberated 10 days. And they came up with a verdict. The Westerfield jury deliberated 10 days. They came up with a verdict. I should say, the Menendez deliberated 20 days, came up with a verdict, and in both of those instances it was a verdict of guilty. So I mean, you know, Larry, I think this is way too early.

(CROSSTALK)

KING: Thanks very much, Chuck. We'll probably see you tomorrow night.

SMITH: Absolutely.

KING: And when we come back, we'll take calls for Nancy Grace, Jo-Ellan Dimitrius, Howard Varinsky, Trent Copeland, Ted Rowlands and Richard Cole. Don't go away.

(COMMERCIAL BREAK)

KING: If you joined us late expecting to see Dr. Phil, he'll be with us Thursday night. Tomorrow night, Dr. Andrew Weil, plus more on the Peterson case.

Let's go to calls for the panel. Columbus, Ohio. Hello.

CALLER: Hello, Larry.

KING: Hi.

CALLER: I have a question on the comment first for Nancy. I think that Laci was killed on the 23rd. I always have and always from the beginning. My question is for my precious Nancy, who we want to thank for being in Laci's corner like she has, is if found guilty, can Peterson or his family, either one, be restricted from writing or gaining financially on this tragedy?

KING: Nancy?

GRACE: Thank you for your compliment. But absolutely not. The Son of Sam laws that were passed in this country were reversed by the U.S. Supreme Court in Simon Schuster (ph) case. In fact, Laci's mother has already gone to another judge to try to stop Scott Peterson from making money off the deaths of Laci and Connor. And she was turned down.

KING: But of course, if he's convicted with the death penalty, what's he going to do with the money?

GRACE: That would be up to him, Larry. Buy peanuts, for all I know.

KING: OK.

GRACE: They can still buy things behind bars, and they can give their money to whomever they wish.

KING: Redwood City, California. Hello.

CALLER: Hello. I'd like to know if the family came back today, why would they come all the way back from San Diego, and the Rocha family coming back if there was no verdict?

KING: Ted Rowlands, why were they called back?

ROWLANDS: The Peterson family came back to court in the afternoon. They were -- they are in town. The Rocha family is in town as well. So it's not as if they came up just for this. I believe that they knew that something had happened. They'd talked with Mark Geragos and the defense team over lunch, and they came back because they are curious and they wanted to make their presence known, and they knew that Scott was going to be in court in the afternoon.

The Rocha family also in town. They could have come back. They did not come back to the courtroom when they made the switch in terms of the juror.

KING: Anyone add to that or is he correct?

COLE: Yeah, Larry, one thing, one thing, Larry...

KING: Richard, go ahead.

COLE: One of the things that happened and may have attracted the families into the courtroom, is there were rampant rumors that a mistrial was going to be declared before that. The lawyers were in the judge's chambers from about 10:30 until 12:15. And during that period, the speculation was wild in that courthouse, among the media, among everybody. It could be that the families thought that maybe something more was going to happen until they got -- until they got close to court and heard from the attorneys that that was not the case.

KING: Denver, Colorado, hello.

CALLER: Hi, Larry.

KING: Hi.

CALLER: My question is for Nancy. I thought I heard her say last week, when she got to California that she was out by the courthouse, and waiting where the people are in the lottery to get in, and overheard alternate juror two, I thought she said that her friends were out there and had made a comment that she had talked to them about the case, and I was just wondering if that is true, how that's different than Justin Falconer. Thank you, Nancy. We appreciate everything. KING: Nancy?

GRACE: Thank you, ma'am. Larry, I was standing to get into the courtroom. It was well into the day. The lottery had been conducted early in the morning. I was waiting for court to start. And people out there waiting to get in were all distraught because a court watcher claimed to be a close friend of juror number six, and that juror number six definitely was voting not guilty and had been discussing the case.

Yes, that did happen. But the long story short is if that were true, I think it would have been brought to Delucchi's attention, and six would be off the jury. So in my mind, that was just courthouse buzz. That did happen.

KING: New Haven, Connecticut. New Haven, go ahead. Hello. New Haven, you're on.

CALLER: Hi. Larry, as usual, you have got the best panel. And my question is this: This is the second juror dismissed. Does that increase the odds of Geragos getting this to an appellate court?

KING: Ted? No. No. Let's go first to Trent, then Ted. Trent, you first.

COPELAND: You know, that's an interesting question. And you know, the caller is absolutely right. You know, whether it's the first issue with respect to Justin Falconer and his involvement with outside media interests prior to his dismissal, or whether it's now, this new juror, conducting an extracurricular experiment outside of the presence of the jury, or even refusing to deliberate. It all creates an appellate issue for the defense. So I mean, clearly, whether Nancy wants to admit this or not, the prosecution cannot be happy with the volatility in this jury, because it really creates a problem going down the line with respect to an appellate...

KING: Nancy, that's obvious. Didn't you expect a rather quick guilty verdict here?

GRACE: I did. I thought the jury would come back more quickly with a verdict. But I don't have to admit anything, because from where I am sitting, I am advocating what I believe the truth. And if I had a juror on that jury panel that I thought was pro-defense and I was the prosecution, I'd be happy they were off the jury.

So let me tell you another little secret about appeals. Every single thing that happens is grounds for appeals. This juror being taken off the jury, another juror doing research, another juror talking to his girlfriend about the case. Long story short, everything is grounds for appeals. Does that mean there won't be a conviction? Heck, no.

KING: We'll take a break and come back with remaining moments. Get a comment from everybody right after this.

(BEGIN VIDEO CLIP) DELUCCHI: Do not hesitate to change an opinion if you are convinced it is wrong. However, do not decide any question in a particular way because the majority of the jurors, or any of them, favor that decision.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

KING: Ted Rowlands, prediction. I don't want to say guilt or not guilt. When is this trial going to end?

ROWLANDS: Well, you know, when the trial is going to end, who knows if it will be retried if there's a hung jury, but I think it's safe to say that there won't be a decision until the very end of this week or next week at the earliest.

And according to sources that say that the mood in the jury room is very contentious, I think a hung jury is the best bet at this point. The question is, you know, who does this really benefit? I think that clearly, the prosecution would be pleased with a hung jury if the numbers are such where they -- it's a mandate to retry it, and it will be devastating to the Peterson family. They'll have to go through all of this again, and devastating really to both families because...

(CROSSTALK)

KING: But you think the prosecution will be happy. Should have been a mistrial, Howard?

ROWLANDS: I don't know that they'll be...

VARINSKY: Absolutely. In any case anywhere in the country, this is a mistrial. It's just -- I mean, it's automatic. Just the investment in this trial is so much, this judge is trying to keep this jury together.

KING: How would you take a hung jury, Nancy?

GRACE: How would I take a hung jury as the prosecution? It's a major, major blow. No, they will not be happy with a hung jury. Don't count this jury out yet. I know it's a crapshoot. Let me just...

KING: I'm not counting, I'm just asking. How do I know?

GRACE: (UNINTELLIGIBLE). Yeah, tell it. I think we have got a good chance to get a verdict in this case. And I'm still betting on that same verdict. And hey, you know what, I struck out once, I'll try it again. Friday verdict.

KING: Jo-Ellan.

DIMITRIUS: I'm going to step out on a limb here and say, tomorrow afternoon, before they close. KING: So they're not going to start deliberations all over again? They're not going to listen to the judge?

DIMITRIUS: Well, they are to the extent that I...

KING: Runaway jury!

DIMITRIUS: I do believe that they probably caught her up to the speed to the point that she was there today, and tomorrow they're going to go back in and start hammering away at one another. But I wouldn't be surprised if they came back tomorrow afternoon.

KING: Trent.

COPELAND: I don't think there is any chance of that, Larry. If for no other reason -- I don't think they want the stern look that this judge is going to give them that they came back after disobeying his orders so quickly. I think this jury is out and I think they will be out until well into next week, and I think that's consistent with the way they should be handling this death penalty case.

KING: Richard.

COLE: I see it about three different ways, Larry. I think if they're going to hang, we're going to be probably here until Thanksgiving. The judge is not going to let these people go home after a week or 10 days, and they say, gee, I'm sorry, judge, we can't reach a verdict. He is going to read them the riot act a couple of times and keep them through up until the holidays.

If they're going to reach a verdict, I just can't see with what's going on in that jury room, that it's going to be tomorrow, as much as I hope Jo-Ellan's right. I think we'd be talking at best Friday, and I don't even think then. I think if they reach a verdict, it will be sometime next week and maybe late next week, and that's only if they reach a verdict.

KING: And Ted Rowlands, do you want to now amend that the prosecution will be happy with a hung jury?

ROWLANDS: Maybe happy is a little too strong. But obviously, they want a conviction. However, I think that they'll retry this case if the numbers dictate it, and if Mark Geragos isn't in the fray -- they've learned a lot from this one. I think that they won't be devastated, put it that way, where I think that the Peterson family will be, Scott Peterson will be, and the Rocha family will be on some level, because they're going to have to prolong this nightmare which they've been living now for two years.

KING: How does a jury consultant react to a hung jury, Howard?

VARINSKY: Look, it gives us a chance to go back and figure it out. Talk to jurors, find out what went on in the jury room.

KING: You don't regard it as a defeat or a victory, then?

VARINSKY: For the prosecution?

KING: For yourself?

VARINSKY: No, no. It's a push. It's a push.

DIMITRIUS: Well, I think from the defense side, based with how many jurors we went through to get the folks that we did, I think it would be a success story. Based on all the negative publicity...

KING: (UNINTELLIGIBLE) stays in jail for another year...

DIMITRIUS: Yeah, it's going to be a tragedy if it does end up as a hung jury, given both sides of the case and the families on both sides. But I do believe from the defense perspective, it would be a win.

KING: Thank you all very much. We'll do more on this I'm sure tomorrow night, plus Dr. Andrew Weil. Dr. Phil will be with us on Thursday night. I'll tell you all about that when we come back. Don't go away.

(COMMERCIAL BREAK)

KING: Tomorrow night, more on the Peterson dilemma. And Dr. Andrew Weil. Dr. Phil, who was supposed to be with us tonight, will be with us for the full hour on Thursday night.

Aaron Brown is off on a speaking assignment tonight. I have got to look at him again. I looked at him for 146 hours last week. He's back with me again. There he is. Wolf Blitzer, go to the board and tell me who's ahead!

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