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NANCY GRACE

Benjamin Fawley Officially Named Suspect in Behl`s Murder

Aired October 10, 2005 - 20:00:00   ET

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


LISA PINTO, GUEST HOST: Tonight, breaking news. Finally, police have named a suspect in Taylor Behl`s murder. And tonight, every parent`s worst nightmare, a 13-year-old babysitter is on trial for shaking 19-month-old girl, Freya Garden (ph), to death in Seattle.
Good evening, everybody. I`m Lisa Pinto, sitting in tonight for Nancy Grace. We are waiting for a judge`s decision in the shaken baby case. Will a teenage defendant`s confession be thrown out? And if so, what does the state have left? I`ll tell you. Nothing.

But first tonight, breaking news in the Taylor Behl murder mystery. Finally, a suspect in the case. Thirty-eight-year-old photographer Ben Fawley has been named a suspect in the murder. He`s already been charged with illegal firearms possession and possession of child pornography. One of the pictures involved an infant less than 1 years old.

This week, instead of celebrating her 18th birthday, Taylor Behl will be buried.

(BEGIN VIDEO CLIP)

MATT BEHL, TAYLOR BEHL`S FATHER: We`ve gone through this -- the nightmare of the missing person. And although we`re probably not sleeping at night regularly still, at least I`m not waiting for a phone call.

(END VIDEO CLIP)

PINTO: That was Matt Behl, the heartbroken father of Taylor Behl, whose body was discovered, and finally a suspect has been named. You know, Ben Fawley, 13 -- Ellie (ph), how many felony convictions did he have? Thirteen, sixteen felony convictions. Some of them include assault. This is a guy who has found -- alleged to have possessed child pornography.

And tonight, I`m joined by a legal panel, all-star panel, to discuss the police`s case. In North Carolina, forensic -- in Charlotte, North Carolina, forensic anthropologist Dr. Kathy Reichs. In Miami, trial attorney, defense attorney, Michelle Suskauer. Here in the studio in New York, Dr. Robi Ludwig and "Justice" magazine senior editor Mark Schone.

Let`s go to you, Mark. What is the latest? He`s been named a suspect?

MARK SCHONE, "JUSTICE" MAGAZINE SENIOR EDITOR: Yes, prior to this, Chief Rodney Monroe in Richmond did not want to say that he was a suspect. When people asked, he would say, We`re focusing the investigation. But as of today, he has been named as a suspect in the case.

PINTO: Well, what can you tell us about the other charges against Mr. Fawley? I have at least -- I have so many rap sheets in front of me here, I don`t even know where to start. I know he has several assault convictions. I have in front of me an order of protection from an ex- girlfriend. Tell me more about this suspect now?

SCHONE: As soon as we started reporting on this case, we wanted to see if he had a history of violence and a history of violence against women. And we found pretty quickly that he had a number of assaults in Virginia. He has assaults in 2000, in 2003, 2004. There`s a trespassing charge that was dismissed in 2005 that seems to have involved him allegedly breaking into an ex-girlfriend`s apartment.

PINTO: You might call that stalking.

SCHONE: It sounded like stalking. And the complainant in that case was a roommate. He says that he wanted to press charges but never received any notification of court dates in the mail.

PINTO: Oh, someone dropped the ball here. And he`s in custody now on the porn allegations, is that right?

SCHONE: He has been in custody since the 23rd on 16 counts of child porn, and he was just charged on Friday with being a felon in possession of a firearm.

PINTO: Oh, that`s a very nice guy, a stalker with a gun in the house! How did -- where did that come from, the gun?

SCHONE: I don`t know where the gun came from, but I know that at least two individuals say that they saw him with this gun. He had -- later turned the gun over to his lawyer. The lawyer turned it over to police. And a felon with a firearm carries a charge of -- a sentence of two years in Virginia, or five years, if one of the prior felonies was violent.

PINTO: Let me talk to Dr. Robi Ludwig for a minute here. I look at these pictures of Taylor Behl. What a beautiful young woman! Why would she hang out with this loser? Talk to me.

ROBI LUDWIG, PSYCHOTHERAPIST: Well, obviously, she didn`t consider him a loser. He was much older than she was, so there could be a little bit of that Svengali effect, where he was older and she admired him. And there is something about the bad boy that can attract a young, innocent girl, where a girl might think it`s very interesting, dark and fascinating.

PINTO: And he`s not even cute, though, Robi. I mean...

LUDWIG: To you.

PINTO: Let`s hear from Matt Behl, what her father had to say.

(BEGIN VIDEO CLIP)

BEHL: She stopped by my house at about 4:30, quarter of 5:00, spent about 15 minutes, gave me a poster from a movie, gave me one of her graduation pictures that showed her receiving her diploma. And you know, I gave her a kiss and a hug, several times, one on the driveway. But at that time, I never would have guessed that that was the last time I was ever going to see her.

Taylor`s not missing anymore. I don`t know how many parents that have lost children that still are missing are still out there looking. For me and for Taylor`s mother, we know where she is now. We know she`s not missing anymore, and that is at least some comfort. It -- this is a huge loss to us because this is our only child.

And I guess the third phase here is the anger. Someone did this. Someone did this to my girl. She just didn`t trip and fall into a shallow grave. Somebody`s responsible for the death of my daughter, and somebody is going to pay.

(END VIDEO CLIP)

PINTO: Heartbreaking! Father of the victim, Taylor Behl, talking about his loss and the discovery of his child`s remains.

Let me go to my defense panel here. Why shouldn`t Ben -- if he`s convicted and charged -- I know he`s just a suspect at this point -- why shouldn`t the suspect in this case get a needle in the arm?

Let me go to Michelle Suskauer. Michelle, defend this guy to me.

MICHELLE SUSKAUER, DEFENSE ATTORNEY: You know, this is a -- it`s a tough case. But you`re saying, Why shouldn`t he get the death penalty? Well, you have to assume that the defense lawyers on your panel believe in the death penalty, which I don`t. So you know, wouldn`t a worse penalty in this particular case be life in prison, every single day, and being alone...

PINTO: Michelle, I`m looking at this guy`s rap sheet. I mean, it`s like an accordion. It opens up 20 pages here. You got to tell me -- this guy, if you had to represent this guy and you saw his record, you would look looking for a plea. Where is the mitigation? If this man -- if this case goes to the grand jury, which, by the way, meets, I think once a month -- that`s a problem -- and he is, in fact, indicted and there is a trial and he`s convicted, what jury is going to like this guy on the sentencing phase?

SUSKAUER: You know, it`s going to be very tough, but we don`t know a lot about his background, only from the rap sheet that you`re holding up. I don`t know about any psychological issues. I don`t know about issues from when he was a child.

PINTO: Oh!

SUSKAUER: And those are issues -- well, wait a second! Those -- first of all, you`re already convicting him.

PINTO: No, I`m not!

SUSKAUER: You`re already ready...

PINTO: No, I`m not! No, I`m not!

SUSKAUER: You`re already ready to put the needle in his arm, when he hasn`t even been charged yet. So let`s go...

(CROSSTALK)

PINTO: That`s true. Let`s get him charged. I don`t -- you know, innocent until proven guilty. But when a man comes into the system with this kind of sheet, a man who has no job, who trolls the Internet looking for young women, who has -- was alleged to have child porn in his possession -- this is not a pretty picture for the parents of a victim to see.

SUSKAUER: No, it`s not. It`s not. And it`s very tough, and I`m sure they`re questioning, Why would my child be attracted to someone like this? Because, obviously, they were in a relationship. But you also have to look -- this is a girl who was sort of on the edge, looking to experiment, maybe looking for the bad boy.

PINTO: Oh, the poor girl was 18 years old!

SUSKAUER: Sure. Sure. And she had...

(CROSSTALK)

SUSKAUER: Her screen name was "jail bait" spelled backwards. I mean, it was...

PINTO: She was 17.

SUSKAUER: Maybe she was...

PINTO: I`m sorry, she wasn`t even 18! she was 17!

SUSKAUER: That`s right.

PINTO: She was going to turn 18 this week, but instead, her family`s going to bury her.

Let me bring in your colleague, Hillah Katz, who`s also a renowned defense attorney out of Florida jurisdiction. Ms. Katz, there`s another character that popped up in this investigation, someone by the name of Jesse Schultz. Now, the dogs alerted on his scent in Taylor`s car. Would this be your iron-clad defense, if you were representing the suspect in this case? Would you look at this guy?

HILLAH KATZ, TRIAL ATTORNEY: Well, it sure would. If I was actually representing Mr. Fawley, I would make Mr. Schultz my fall guy...

PINTO: Yes.

KATZ: ... because without a doubt, we`re going to find out and we`ll see won there`s going to be evidence which actually points to Mr. Fawley. And if all there is is circumstantial evidence against him, then it`s very -- it`s a good defense, and it should be the defense that some other guy did it. I mean, they found their -- they found the victim`s car, they found Taylor`s car nowhere near the farm where her body was, but they found it in close proximity to a scent that went right back to Mr. Schultz`s house.

PINTO: What about Fawley`s -- OK, he was kidnapped, coincidentally. He was kidnapped, he tells police, the night that the victim in this case disappeared. He was kidnapped by unknown people. He was taken to an unknown place in an unknown car. But he knows that he conveniently disappeared that night. Can you sell that to a jury?

KATZ: Well, I never think that the phantom defense is actually sellable. The phantom who did it or the phantom who done is much harder for a jury to actually stick their teeth into, which is why, right now, all the other leads which have gone towards Mr. Jesse Schultz, make an easier defense for any defense attorney to say, Look, this is the guy. This is where all those other leads were going, and he`s actually the correct person that should have been arrested...

PINTO: Yes, well...

KATZ: ... not my client.

PINTO: Well put.

Michelle, I`ll tell you what. If I was in your position, the one thing I would like is the fact that this is going to be prosecuted in Mathews County. Now, this is a jurisdiction, as I understand, with a DA`s office with a grand old one attorney, right? And...

SUSKAUER: That`s right. There was only one.

PINTO: And a grand jury that meets once a month, twice a month. This is not a sophisticated urban district attorney`s office. And as a defense attorney, you`re laughing all the way to court because someone of your caliber gets in there, and you start hitting home runs. Is that right?

SUSKAUER: That`s right, you know, but I think that the larger jurisdictions have already offered help. They`ve already offered resources. So I would not be surprised if we`re going to see, eventually, when this case -- whoever gets charged down the road, there`s going to be two, three or an entire team of attorneys from other jurisdictions helping this guy out because he`s alone out there.

PINTO: Mr. Fawley is in trouble, in that case, you start bringing in some heavy hitters from Richmond County.

But let`s talk about what was recovered in this man`s home. I mean, I am just fixated on this guy. This is a guy on disability for his bipolar disorder, collecting taxpayer money. He doesn`t work. He gets a check every month. And when they search his home, guess what they find? Things that you might say lead to -- a gym bag with spike bracelets, some sex toys -- I hope my children aren`t watching -- something about an alternative sexual lifestyle here, girls` underwear, bones.

UNIDENTIFIED FEMALE: Bones.

PINTO: ... human bones, a machete. And then there was a red-brown stain that was cut out of the mattress. White panties. This is all -- oh, excuse me, a hatchet, a hammer and a pry bar. You need those in a residential -- in a little apartment. And three pairs of underwear. This is a -- these are -- this is quite a cache, don`t you think, Michelle? What do you do with all this?

SUSKAUER: He -- he -- maybe he just tinkers around the apartment with all this stuff.

(LAUGHTER)

SUSKAUER: He`s a tinkerer! He`s a collector. Maybe -- maybe he`s going to selling this stuff on eBay.

PINTO: Right. Right.

SUSKAUER: Who knows!

(CROSSTALK)

SUSKAUER: He has a bipolar disorder, OK? Maybe this could be one personality and the other personality. He`s a creative type.

PINTO: Robi...

SUSKAUER: He is a photographer.

PINTO: Talk to her, Robi. Help me out here.

LUDWIG: OK, first of all, bipolar...

(CROSSTALK)

LUDWIG: Having bipolar personality -- or bipolar disorder is a mood disorder. It doesn`t mean you have multiple personalities. But what you can say is that he was in a manic state. There are certain people, if they`re not treated properly, can become psychotic, if they`re not treated. So you could see, Well, maybe this is part of his psychosis. We don`t know what these things meant to him if he was not medicated properly. But I`m surprised that he`d get disability having bipolar disorder because there are so many people who have this mood disorder...

PINTO: It seems...

LUDWIG: ... that are productive.

PINTO: It seems, Robi, like you can get a government check whenever you need it.

Let me bring in Mark Schone again. Mark, talk to me about the defense in this case. Have you heard anything about a possible insanity defense? Is that where we`re heading?

SCHONE: Well, that was certainly raised. At the bond hearing, he -- Ben himself said that he was -- had a mental problem. But he hasn`t been consistent in what he tells his friends what his mental problem is. Apparently, he`s told different stories to different people. I`m not even sure that he is bipolar. He has said he`s manic -- he`s said that he`s schizophrenic before. So we`ll have to see some sort of documentation on what this mental problem is.

PINTO: Well, we`ll be right back. More on this, Mark. I want to hear more about potential defenses.

But first, to tonight`s "Trial Tracking." Today, three New Orleans police officers were caught on tape assaulting an old man and a reporter, and they pled not guilty to battery charges. Two officers are accused of brutally beating 64-year-old Robert Davis, hitting him in the head at least four times. And a third officer is accused of assaulting a reporter who refused to stop filming the incident. That doesn`t sound good. Davis was treated at a local hospital, then released to police, who charged him with public intox, resisting arrest and battery on a police officer.

(BEGIN VIDEO CLIP)

CAPT. MARVIN DEFILLO, NEW ORLEANS POLICE DEPARTMENT SPOKESMAN: Now, the question that comes to mind as far as the investigators is the degree of force used by the officers, and was that force appropriate. And we believe that their approach, based on the preliminary review, was not appropriate.

(END VIDEO CLIP)

PINTO: Well, the higher-ups aren`t standing for it. But allegations of corruption and brutality have long haunted the New Orleans Police Department. But this incident is particularly troubling as a broken New Orleans tries to rebuild itself after the devastation of Hurricane Katrina.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

CHIEF RODNEY MONROE, RICHMOND POLICE: The remains that were recovered here in Mathews County have been positively identified as that of Taylor Behl, the missing student from Virginia Commonwealth University.

(END VIDEO CLIP)

PINTO: You`re looking at pictures of the area in Mathews County, Virginia, where Taylor Behl`s body was found.

I`m Lisa Pinto, sitting in for Nancy Grace tonight. Let me go straight out to Dr. Kathy Reichs. She`s a best-selling author and forensic anthropologist. Lots of "CSI"` type questions for you, Doctor. What can you tell us about this crime scene?

KATHY REICHS, FORENSIC ANTHROPOLOGIST: Well, I can tell you they`re going over it with a fine-toothed comb. It`s not just enough that they`re going to have to document that -- that she was killed, the medical examiner is going to be documenting how she was killed. He`s going to be interested -- or she -- in where she was willed and also when she was killed. We don`t really know all of those things yet.

PINTO: You`ve said so much interesting stuff there. Let`s start with where she was killed. What are they going to look at, soil, insect life?

REICHS: You`re going to look for anything that doesn`t belong there, anything that might indicate that that -- that she arrived there either alive or dead. You`re going to look for things that may have been attached to a body, in the case that she had arrived there from elsewhere. There`s certain kinds of insects that might be present in that locale that wouldn`t be present elsewhere. And you may find external insects that have been included with her, or dirt that...

PINTO: And Doctor, what about her remains? My understanding is that they are skeletal. Is that your -- what you heard, too?

REICHS: The phrase I`ve heard used repeatedly is "badly decomposed."

PINTO: So would that be normal -- given that she disappeared early September and she was found several -- about a month later, is that consistent (INAUDIBLE)

REICHS: Yes. "Badly decomposed" can mean a number of different things. To me, that would be consistent with a period of several weeks in Virginia, where it`s been fairly warm lately, yes.

PINTO: And what can they find -- what kind of tests will they do on these bones to determine, A, how she died, and B, who may have done it?

REICHS: They`re going to look at everything they`ve got. If there`s any soft tissue, if there are any eye fluids, if there`s brain, if there are organs present, they`re going to be trying to do as complete an autopsy as possible, looking at stomach contents. They`re going to be looking at the state of decomposition, the amount of lividity that`s in the body, if you`ve got soft tissue left. If that`s gone, if all of that is already decomposed, then they`re going to have to look at more detail in the bones, in exactly what stage of insects you`ve got present. Insects arrive in a certain succession. Different species arrive. They go through their life cycle. So depending on what state of development the maggots are in...

PINTO: Wow.

REICHS: ... they`re going to be looking at that to pinpoint. They might be looking at volatile fatty acid decomposition. There`s just a lot of different things, depending on what it is they have to work with.

PINTO: And when you hear that it was a shallow grave, what does that tell you? Does that tell you that the perpetrator was in a hurry or that there was some sort of psychological issue there? What do you make of that?

REICHS: Well, I make of that that that`s very typical for someone that`s in a hurry, that`s digging hastily, you know, maybe in the middle of night, under cover of darkness, whatever, but with the minimum amount of energy expenditure to get rid of a human body. And that takes quite a bit of digging.

PINTO: Dr. Ludwig wants to weigh in on this. What does that tell you, shallow grave?

LUDWIG: Right, that very often with perpetrators, when there`s an acquaintance abduction, there`s a seduction that goes along with it, that the intention isn`t necessarily to murder, but it`s some type of sexual sadism that gets out of control. So the cover-up is very quick, and often the graves are very shallow.

PINTO: More on that, Robi, after the break.

To tonight`s "Trial Tracking." Shocking testimony in the wrongful death suit against TV star Robert Blake. You remember that murder trial? Three people alleged Blake asked him to do in his wife. He was found not guilty. Blake told the jury in the civil trial that his murdered wife, Bonny Lee Bakley, once offered him her teenage daughter for sex. He also - - Blake also admitted that he offered Bonny a quarter of a million bucks to abort her baby, but she refused. And practically in the same breath, Blake told the jury that he loved his wife and he wanted to create a good life for her. Remember, Bonny Lee was found murdered in Blake`s car in May of 2001 near their favorite Italian restaurant, and he was acquitted of her murder earlier this year. Go figure.

(COMMERCIAL BREAK)

PINTO: You`re looking at pictures of Taylor Behl as a little girl. It is just heartbreaking, as my little ones sit at home. I`m Lisa Pinto, sitting in for Nancy Grace tonight. What a cutie she was! Supposed to turn 18 this week. Instead, her family`s burying her.

Let me go right out to Mark Schone, the senior editor of "Justice" magazine. Mark, talk to me a little bit about Taylor`s relationship with the suspect, the now suspect in this case, Mr. Fawley. What can you tell us about how they met?

SCHONE: Well, Ben lived with someone that she knew from high school, someone she knew from her home town of Vienna. And she met him back in February, and he seems to have pursued some sort of relationship with her the way he usually pursued relationships with women -- I want to take your picture -- that sort of thing. They do seem to have had...

PINTO: Oh, that`s creepy.

SCHONE: Well, he had a lot of success doing that with women. But typically, his relationships would be very short and...

PINTO: And Mark, they were younger women, right? Taylor was 21 years younger than the suspect, and he had a series of girlfriends. I`ve looked at blogs that people have contributed -- that he`s contributed to where he talks about his girlfriends...

SCHONE: Right.

PINTO: ... and his types. And there`s redheads and there`s brown hair. But they all seem to be younger women, is that right?

SCHONE: Right. I mean, he`s 38. He`s living near the Virginia Commonwealth campus, and he has a steady supply of 18-year-old women arriving on campus that he can go through this routine with. And he...

PINTO: He sure don`t act 38! I mean, here he is with half (ph) the rooty hair. I should talk, but I have a small child, so I have an excuse. But you know, the skate -- isn`t he a skateboarder? He hangs out near a college. He talks about how he looks so much younger. He`s fixated with his appearance. I mean, there`s something a little off with this guy.

SCHONE: Well, he wants to be younger. And I don`t know if he even disclosed his real age to a lot of people. I don`t think they were aware he was that old. He really did look young.

PINTO: Yes. And what about -- did you read the "Skulz" home page, where he talks about losing his job, and he blames the Republicans, and so forth?

SCHONE: He always blames everybody else for all of his problems. Everything is always someone else`s fault, and that`s a pattern. There`s always a blow-up in his relationships, and he always makes it out to be someone else`s fault. He documents everything that happens to him. He`s very much a narcissist.

PINTO: Have you -- have you -- let me -- back -- more after the break.

But we at NANCY GRACE want very much to help, in our own way, solve unsolved homicides, find missing people. Tonight, take a look at another missing young woman, Robin Smith, 35 years old. She was last seen leaving work in Gulfport, Mississippi, in September of `98. If you have any information on Ms. Smith, please call the Carole Sund Carrington Foundation toll-free 1-888-813-8389. Please help us find this young woman.

(COMMERCIAL BREAK)

THOMAS ROBERTS, CNN HEADLINE NEWS ANCHOR: Hi, everybody, I`m Thomas Roberts. And this is your "Headline Prime Newsbreak."

In Pakistan, rescuers are franticly searching for survivors in the rubble of Saturday`s earthquake. The death toll now tops 30,000 in Pakistan alone. And aftershocks continue to rattle the region.

To Ohio now, where police are searching for a man who drove into a crowd of people over a fight about a soccer match. The crash killed one, injuring five others. The driver then fled the scene. Police think the man was enraged after a fight over the World Cup soccer match.

In New Orleans, one of the areas hardest hit by Hurricane Katrina will partially reopen Wednesday. Residents of the Ninth Ward can view their homes and salvage belongings, but they won`t be allowed to stay.

And meet fourth-grader Johnny Wilson. He swam into the record books by covering the 1.25 miles between Alcatraz and San Francisco. At just nine years old, Wilson the youngest person now ever to complete that swim. And along the way, he raised more than $30,000 for Hurricane Katrina victims. Good for him.

That`s the news for now. I`m Thomas Roberts. Back for more of NANCY GRACE.

PINTO: That is an exclusive to Headline News, home video of Taylor Behl as a little girl. Look at this sweetheart. How many of us have little ones at home -- not that my girls -- my boys don`t wash the dishes, as much as I try -- but that scene pulls my mother`s heart strings to see her eating her dinner, walking, sitting at the table.

I hope poor Mr. Behl isn`t watching this tonight.

Let me go straight out to Mark Schone, senior editor of "Justice" magazine. Oh, those pictures were heart breaking. I think about this 17- year-old girl in a shallow grave in rural Virginia.

Mark, what are the nuts and bolts? What`s next in this case? We have a suspect. Will he be charged? Where are we?

SCHONE: They`re holding him on these other charges. And I think they`re going to wait to indict him until they really have the physical evidence together.

If they can`t establish that she was murdered in the city of Richmond, by default the case is going to go to Mathews County. And I think the issue now is finding some physical evidence to say where this event happened.

PINTO: Mark, Mark, you kindly provided us with the rap sheets of this guy. Dusty, show this on the camera. I mean, this is pages and pages of information on this man. What more do the district attorney and the police need?

I mean, yes, exhume the bones. Look for fibers. Look for trace evidence. He`s given a hocus story. He`s got a rap sheet a mile long. He was with the girl. He posted shots of the place where her body was found on his web site. Don`t you think a jury could put together the puzzle, if they were presented with an indictment?

SCHONE: They`re being very careful. They`ve already got him at least until the 31st on the child porn charges. And that carries -- that`s 16 counts, five years apiece max.

PINTO: Right.

SCHONE: The felon with a firearm is five years. I`m assuming they`re charging him based on a previous violent felony in Pennsylvania where he has 13 felonies. And that`s five years automatically right there. They don`t need to charge him yet. I`m sure they will in time.

PINTO: What did -- have you talked to her roommate in this case, Taylor Behl`s roommate, or any of her friends at the university?

SCHONE: We talked to a couple of people connected -- off the record, of course -- connected with the case, most friends of Ben Fawley. We were pursuing Mr. Fawley as a potential suspect in the case right away and trying to find out what his pattern of behavior was.

PINTO: Take a listen to this.

(BEGIN VIDEO CLIP)

MATT BEHL, TAYLOR BEHL`S FATHER: We`ve gone through the nightmare of the missing person. And although we`re probably not sleeping at night regularly still, at least I`m not waiting for a phone call.

JANET PELASARA, TAYLOR BEHL`S MOTHER: I`m positive the authorities will bring the sub-humans to justice. And I pray they receive the death penalty.

(END VIDEO CLIP)

PINTO: Mrs. Pelasara, I couldn`t agree with you more. This is a horrible case, a young woman plucked in her prime, 10 days in college. She never had a chance.

Mark, back to you. Tell me more about the potential defenses in this case. I`m not clear where this suspect can go. You were talking about insanity.

SCHONE: Well, actually, I think that Jesse Schultz is going to be a big problem for the prosecution. I mean, the dog went straight from his car to his house, which is six blocks away. They`ve got to come up with an explanation for why this happened, or else the defense is going to raise that immediately.

PINTO: And what do we know about Mr. Schultz? He`s in custody right now, too, on separate, unrelated charges, right?

SCHONE: On a cocaine possession charge. But in fact, he has a completely negligible arrest record. And the Richmond police have said specifically he is not a suspect in this case.

PINTO: Are there any allegations that he had a relationship with the victim? I mean, this guy wasn`t talking about her on his web site or posting pictures of her grave, was he?

SCHONE: Jesse took a polygraph right away. And he supposedly failed two of those questions. There`s some dispute about whether he failed them or simply there might have been some evidence of deception, but -- you know, whether or not he knew her, whether or not he`d been in her car.

However, there have been statements that, yes, he worked at the Village Cafe, which is where Taylor was seen. In fact, he did not work there. He probably didn`t know Ben. He probably didn`t know Taylor. A lot of the stuff that`s out there about him seems to be incorrect. He may not even have been a skateboarder.

PINTO: Fair enough.

Dr. Ludwig, what do you make of this young woman? We talked about her moving 11 times, her mother being divorced twice. Was she susceptible to all these...

LUDWIG: Well, any child can be susceptible. But, of course, there are certain backgrounds that might make you more vulnerable, given your temperament and your character.

Moving around a lot and coming from a family of divorce might make you want to have your own stable relationship at an early age. And you might find yourself attracted to somebody who`s older. When you think about an older man, they`re in a better position to be more attentive and give you more attention. That`s very flattering and very seductive to a young girl, in a way that other 18-year-old boys, they can`t do that, because they`re not mature enough.

PINTO: Yet this guy alleges in his web site that he`s dating lots of women, so it seems like, you know, his attention was spread around.

LUDWIG: Well, he might have been dating a lot of women, but she might not have known that. And he might have favored her. And, you know, when you ask a girl, "Can I take your picture?" and "You`re so beautiful," he might have been really good at giving this girl she was the only one.

PINTO: Now, one of our prior guests -- I think it was Ms. Katz -- was talking about the fact -- or it might have been Ms. Suskauer -- they were talking about the fact that this victim was out skateboarding at 10:30 at night. To me, that`s not a big deal. You`re a college freshman. Your first few days, the whole -- it`s all about the escaping from your parents and maybe going out and drinking a few too many beers.

What do you say, Ms. Katz?

KATZ: Well, I think that skateboarding at 10:30 at night, I mean, that`s not something that`s going to make her more susceptible to finding a man who may, in fact, have been the one to take some type of photographs of her and then murder her.

I mean, she`s not doing anything different than any other young girl who`s a freshman in college is doing, which is trying to get a social life and get an education at the same time.

PINTO: I mean, Michelle, you`re not going to smear the victim in this case, are you? Tell me that this is not a victim that you can go after.

SUSKAUER: Oh, no. No, absolutely not. But you can`t just automatically convict someone because they have a long rap sheet with some violent charges. You really need to build a case.

And just like your other guest said, this guy`s not going anywhere. He`s being held on some very serious charges, possession of firearm by a convicted felon, violent convicted felon, and some child pornography charges...

(CROSSTALK)

PINTO: Michelle, what would you say to a jury about that photograph of her grave site on his web site? And by the way, his ex-girlfriend was the one who identified him to police and said that the suspect definitely had been there and knew about it. I mean, that does it.

SUSKAUER: It`s a very, very big problem for him. And there`s no excuse for that. And it`s a very big problem.

But the state is going to take their time, this one lone prosecutor or with help, because he`s not going anywhere, to build their case against him. And they have a lot of good building blocks right now.

PINTO: Dr. Reichs, you know, when are we going to hear the cause of death? Are they slow at the coroner`s office? Are they taking too long? Are they also being diligent and careful, because this is a (INAUDIBLE) case? What`s your take on this?

REICHS: They are slow, and they`re being diligent and careful. And that`s exactly what they should be.

They not only have to find out those answers, how she died, when she died, where she died, maybe, they`ve got to document them.

PINTO: Right.

REICHS: They can`t just go into court and say, "This is my opinion." You`ve got to have the validation of that opinion. You`ve got to show where that opinion came from, so everything has to be documented.

(CROSSTALK)

PINTO: I mean, talking in a lab, what are they doing? Are they measuring bones? Are they looking under the microscope? Tell the viewers exactly how they`re going to make the conclusion that she was, a, shot, b, strangled, or, c, suffocated?

REICHS: They`re going over every inch of the remains. They are collecting fluids from the remains. They`re looking for anything foreign that might be contained with the remains, under the fingernails, within the remains.

They are radiographing, taking x-rays. They are taking photographs. They are looking at every possible thing that they can that can tie her to some place, to some perpetrator, anything that`s going to reconstruct the death episode that she went through.

PINTO: Well, this is a fascinating case. I hope that we get some closure for the family`s sake.

After the break, we`re going to talk about the shaken baby syndrome in Seattle, Washington. Remember, that currently we`re waiting for the judge`s decision? Will she suppress the juvenile defendant`s confession or not? And if she does, the state is in big trouble.

More after the break.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

BRYAN HERSHMAN, ATTORNEY FOR BABYSITTER, 13: My client really hasn`t confessed to anything. My client, as evidenced by the testimony today in court, she has repeatedly used the word "wiggle." She has not used the word "shake." That was introduced by police officers.

I want you to imagine: They kept this 13-year-old girl up through the night.

(END VIDEO CLIP)

PINTO: That was Bryan Hershman, attorney for the defendant in the shaken baby case in Washington, the 13-year-old defendant charged with shaking a baby to death, 19-month-old Freya Garden. And here, we`re seeing pictures of the 13-year-old girl, the babysitter, who is accused in court.

I`m Lisa Pinto, sitting in for Nancy Grace. Tonight, in Seattle, the 13-year-old girl`s defense attorney, Bryan Hershman; and on the phone, "Port Townsend Leader" reporter Barney Burke.

Quickly, can you update us, Bryan Hershman, has the judge decided whether your client`s confession will be in or out?

HERSHMAN: Mostly out.

PINTO: She`s decided, or you`ve decided?

(LAUGHTER)

HERSHMAN: Thank you for asking. I decided before the case started.

PINTO: Yes, that`s fine. But what did the judge say?

HERSHMAN: I just got an e-mail on my cell phone that I`ve been trying to read. The judge determined that there were actually pre -- there were ten statements that were made.

The judge, I believe from what I`ve just read, has thrown out the last five statements. That`s of great significance to the case.

PINTO: Are they the ones where she says that she wiggled and shook her? Are those the ones he threw out?

HERSHMAN: Yes.

PINTO: Whoa.

HERSHMAN: Six through ten were the statements where she made -- she made them at the police station. I`m sorry. I`m a little shaken up. I`m just ecstatic with the news that I just got.

PINTO: You won a big victory there.

HERSHMAN: That`s huge.

PINTO: The state is in serious trouble. I mean, I thought this case was a slam dunk when I heard those statements, but now...

HERSHMAN: No, no. No, no, no, no. I encourage you to look at the videos again. Here`s the one downside to prevailing on these motions. There is one downside.

PINTO: It`s the same judge.

HERSHMAN: I obviously want to win this trial, obviously, but I want to win this trial and not be viewed as though my client escaped based upon a technicality. This is not a technicality.

PINTO: Counsel, let me interrupt you for a sec. So the viewers understand, this is a juvenile defendant. She`s 13 years old. She`s alleged to have killed a 19-month-old who was under her care shaking her, once in the bathtub, once in the bedroom, by failing to call the doctor, by failing to call the girl`s parents who were in the home -- the mother was in the home during the first incident -- and by finally calling 911, but it being too late.

Is that the summary of the case, a fair summary?

HERSHMAN: I wouldn`t agree with all of it, but the theme`s certainly there.

PINTO: But the point here is, at the police station, the little girl supposedly said to the detectives that she jiggled her, not once, and that she shook her. And put together with the medical evidence that the trauma to the 19-month-old head was consistent with being shaken, or thrown, or wiggled, that it would be her.

HERSHMAN: It wasn`t. It wasn`t.

PINTO: OK, talk to me about the medical evidence. My understanding is that, you know, you can tell when a baby, when a toddler has been shaken. It`s not a fall from a changing table. It`s not a bumping your head on the bathroom floor. It`s a specific type of injury here, is that right?

HERSHMAN: No. No. There`s a significant amount of controversy as to whether shaken baby syndrome exists or whether it requires impact.

We`re about to start a very critical phase of this litigation. We`re going to have nothing but doctors taking the stand. And they can`t wait. They`ve got three of them who are going to say shaken, who are going to say that the unconsciousness would have immediately followed the trauma. We`re still not out of the woods in this case. And I`m going to try and have to force-feed some doctors what I perceive to be what the medical literature says it supports.

PINTO: Ah, force feed. Interesting choice of words from a defense attorney.

Barney Burke, the reporter covering this case, he`s on the phone with us. Barney, here`s what troubles me about this case. Mr. Hershman`s client, she`s got issues, man. This is a girl who`s ADHD allegedly. Her lawyer, I think, has alleged that she was abused in her home -- correct me if I`m wrong, Bryan -- she`s supposedly bipolar.

Doesn`t a girl like this -- wouldn`t she be better off in juvenile hall, if she did kill this little girl?

BARNEY BURKE, REPORTER, "PORT TOWNSEND LEADER": Well, that`s not for me to say. But should she be convicted of second-degree murder, she would be incarcerated in a juvenile facility until she`s 21.

PINTO: I mean, are you amazed that the judge threw out part of this confession? That is breaking news.

BURKE: Well, I did read the police report on this early on after the murder happened in January. And I thought what was most newsworthy about the police report is it said that they interviewed this 13-year-old girl without an attorney or her parents present. And, of course, Mr. Hershman has been pounding that from day one.

And I did ask the prosecutor at the time about that. And her answer to me in January was, "You`re not entitled to Miranda if you`re not in custody."

PINTO: Well, with a juvenile, I think things are a little different.

And back to counsel Bryan Hershman, when I prosecuted juveniles here in this county, well, in Queens County, boy, we never talked with suspects without a parent or guardian. We didn`t even ask. We got the parent. I guess things are different in Seattle. Is that right?

HERSHMAN: Well, there are several states that have been very proactive. Kansas just passed a law which requires the presence of parents or an attorney when juveniles are being questioned.

But why I`m so happy, apart from the fact that I sincerely believe my client`s innocence -- and I don`t always feel that way, but this time I do -- what makes me so happy is that this is a testament in support of what I`ve been saying all along, and what many people who know this case have been saying all along, that what was done with this little girl was just outrageous.

PINTO: Yes, but, Mr. Hershman, your client, that aside, your client has issues, ADHD, you tell us, abusive home, bipolar...

HERSHMAN: No, no, no. I never said abusive home. That was said by one of the witnesses. I`m not conceding that at all.

PINTO: Oh, OK.

HERSHMAN: She has ADHD. She`s medicated for it.

PINTO: Well, she shouldn`t be looking after small children. I don`t know how she got herself in this situation.

Why didn`t she call the adults into the room, if she was having so much trouble looking after these kids, why didn`t she say, "I can`t do this. I`m going home"? Why didn`t she say, "Call the pediatrician"? Why didn`t she call 911? She told the police that the baby didn`t get up. I mean, come on.

HERSHMAN: No disrespect, there`s just kind of a fundamental misunderstanding of what this case is all about. There`s no indication that my client was mishandling this child or not capable of caring for this child.

As a matter of fact, the irony is, the evening of this child`s supposed trauma which led to her death, the child`s mother was calling my client`s mother, asking her if she could stay longer because she was doing such a wonderful job.

PINTO: Well, Bryan, more on the mother -- we`ve got to go to break. But more on the mother and my opinion on leaving your children with a 13- year-old, after the break. Stay with us.

Quickly to tonight`s "All-Points Bulletin."

FBI and law enforcement across the country on the lookout for this man, Donald Eugene Webb. Webb, wanted in connection with the murder of 31- year-old Police Chief Gregory Adams in Pennsylvania.

Webb is 74, 5`9, 165 pounds, with graying hair and brown eyes. If you have information on Webb, call the FBI at 617-742-5533.

Local news is next for some of you. But we`ll all be right back.

And, remember, live coverage of this case, the shaken baby murder trial, from 3:00 to 5:00 Eastern on Court TV. Stay with us tonight as we remember Sergeant Bryan W. Large, 31 years old, an American hero.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

HERSHMAN: I`ve got my own coroner who will take the stand and testify. I have done extensive research on shaken baby syndrome. It`s a controversial finding. There`s a question whether it even exists. That`s why it`s now called "Shaken Impact Syndrome."

(END VIDEO CLIP)

PINTO: That was Bryan Hershman, counsel for the juvenile defendant in the shaken baby case from Seattle, Washington.

And I have a beef -- Barney Burke, I have a beef with the mom in this case. You leave your kids with a 13-year-old babysitter. OK, you`ve heard she`s a good babysitter. You see your kid has a bruise. You see your kid has a puffy nose.

You don`t ask the babysitter, "How did that happen?" You don`t stick around to make sure she`s doing a good job? When you have a small child at home, you have always got to be vigilant. If a child doesn`t stop crying, you put her down and you walk out of the room. You don`t just hire someone else to take care of the problem.

Barney Burke, talk to me about what`s happening next in this case. Is it over for the prosecution?

BURKE: Well, we`ll see what other evidence they have there. Mr. Hershman noted the judge today struck four of the statements from the videotaped confession. Whether they can make a case without that confession, I don`t know.

I`m reading here from the original police report in January, where, you know, the police are indicating evidence from the medical examiner`s office, concluding that it was shaken baby syndrome.

PINTO: Bryan Hershman, final thoughts: Are you going to win?

HERSHMAN: Oh, I`m not doing a victory dance yet.

PINTO: OK. Thanks for joining us tonight. It`s an interesting case, and one that I think parents across the nation are thinking about.

I`m Lisa Pinto, sitting in for Nancy Grace tonight.

But, remember, thank you -- all our talk is meaningless if you are not participating, listening, and weighing in on this debate on criminal justice. I`m sitting in for Nancy. Hopefully she`ll be back tomorrow.

Thank you so much. Good night.

END

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