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Interview With Mark Geragos, Mary Fulginiti

Aired December 5, 2005 - 21:00   ET


LARRY KING, CNN HOST: Tonight, high-profile defense attorney Mark Geragos and former federal prosecutor Mary Fulginiti squaring off and taking your calls on the continuing controversies over Natalee Holloway's disappearance, the rash of teacher/student sex scandal cases, the drama and danger of Saddam Hussein's trial where a former U.S. attorney general is defending him; all the latest legal news next on LARRY KING LIVE.
We welcome Mark Geragos, the high-profile defense attorney who has had so many famous clients and Mary Fulginiti, a member of one the largest law firms in the country, a former federal prosecutor. She was an assistant U.S. attorney in Los Angeles for five years.

Let's take the Natalee Holloway case first. Tomorrow night, Dr. Phil will be our guest on this show and an interview done by an investigator hired by Dr. Phil, he and the show contend that on the tape three different people admit to having sex with her. The Aruban authorities all deny it and they say the tape is a fake. Dr. Phil stands by it. Where does this go legally or don't we know Aruban law?

MARK GERAGOS, CRIMINAL DEFENSE ATTORNEY: I don't -- I don't know that I want to comment on Aruban law. I do want to comment on what in the heck is Dr. Phil or their show doing going and interviewing people who are suspects in this case?

If I'm in Aruba, whether I'm the prosecutor or the defense lawyer, I want to -- I want to choke him out. I mean that is -- I think it's the height of irresponsibility for anybody to be insinuating themselves into this case who isn't one of the law enforcement agencies.

KING: Isn't that the rule of today's media, Mary?

MARY FULGINITI, FORMER FEDERAL PROSECUTOR: You know I have to tell you that is what's happening more and more in these cases. The media and private individuals are becoming more actively involved in investigations. And, as a former prosecutor, I have to tell you I do agree with Mark on this one.

It is terribly problematic to an investigation to have private citizens being, you know, conducting the investigation because it tends to compromise the case and the evidence.

KING: So, as a prosecutor you don't want a television show interviewing anyone even if it benefits your side? FULGINITI: That's absolutely right, not at all. You don't want your witnesses talking to anybody except you and then obviously to a jury when they're on the stand.

GERAGOS: And what happens, consider, just play it out for a second, what happens if the person that you have this tape over the controversy ends up getting charged at some point? From a defense standpoint I can tell you what's going to happen.

Their defense lawyer is going to say all of the evidence is suspect. Here is a tape that's been altered. They've got a credible person who is saying the tape has been altered. What other evidence has been tampered with? You can make -- you could drive a truck through a prosecution on something like that.

FULGINITI: Yes, and the problem with this case from the beginning has been a lot of the misinformation that's been, you know, unfortunately reported and repeated by a number of people.

I mean the prosecution has kept a very tight lip here. The investigators have really just recently started to come out and speak about the case in their own defense. So, what we're doing is speculating quite a bit which causes in itself rumor and perpetuates the innuendo.

KING: Mary, does Aruban law puzzle you?

FULGINITI: You know, I am not expert...

KING: It's Dutch law.

FULGINITI: ...on Dutch law but it is different than the United States law clearly. I mean here, you know, individuals were detained who weren't even charged with any crime for a number of months. That is unusual and that is a typical. That is not typical of what we do in the United States here.

So, it is a different law but the bottom line is that is their law. They were held under that law apparently appropriately because the judge kicked two of them out and let one of them stay in and we haven't seen any charges and I think a lot of people, including this family, are very anxious to see charges.

KING: Might this case never be solved?

GERAGOS: It might not be. I mean there is nothing that says that it has to be. I mean there's plenty of cases around this country...

KING: Unsolved.

GERAGOS: ...that are unsolved that don't get any attention whatsoever and you don't have the media having kind of this overwhelming interest in it and, if that's the case, I mean it's awful. But, at the same time, the idea that we're trying to impose American law into what's going on there I think is awfully obnoxious of us.

KING: Do lawyers, prosecutors like or dislike "Court TV," "Law and Order"?

FULGINITI: Lawyers, I personally have a difficult time watching some of the, you know, the fiction shows because it's difficult because what they're doing is really, it's not real, you know, and they don't have to be real frankly.

But what it does do unfortunately is it distorts it a little bit for the potential jurors and when you have a jury trial they're expecting to see "L.A. Law" and "Law and Order" and they want to see all the pomp and circumstances, you know, and if you don't have it, they think you're not doing a very good job.

KING: And how about "Court TV"?

FULGINITI: Well, "Court TV" is a little bit different because it's like a reality show so they're actually showing you trials.

GERAGOS: Actually, you know...


GERAGOS: ..."Court TV" has become nothing but, and I hate to say it because I know CNN is affiliated with "Court TV"...

KING: Are we affiliated with it?

GERAGOS: Yes, you're affiliated. There's a cross ownership somewhere.

KING: We own so many things.

GERAGOS: "Court TV" has become, has devolved I think into nothing more than just a cheerleader for the prosecution. I mean that's all they are. They've got a line up of these bleach blonde former federal prosecutors that are on there. They basically are cheering for the prosecution. They're getting upset when things don't go their way. It's an awful situation. It really is.

FULGINITI: Oh, I disagree. I disagree.

GERAGOS: And I'm not talking about your hair color but I'm telling you "Court TV" has really devolved to a point where it's embarrassing I think to the legal system.

KING: Why do you disagree, Mary?

FULGINITI: I disagree because, a) there is a brunette who is a former prosecutor who is actually on their team and, b) I don't -- but for I think Nancy Grace, who has definitely taken a very, you know, prosecutorial approach to her cases...

GERAGOS: Are you saying Kimberly, that somehow Kimberly is...

FULGINITI: No, I'm just saying that there are a number of other people.

GERAGOS: ...even handed?

FULGINITI: There are a number of other people that are on there.

GERAGOS: Virtually everything they've got, they've got Nancy Grace. They've got Nancy Grace Light. They've got the various people that are on there that are nothing more than they look like mouthpieces for the prosecution and they insinuate themselves into the cases.

KING: All right. Is there a danger? Can any side for me at the home or possible jury member to now predetermine a case?

FULGINITI: Oh, definitely and I think what we're seeing more, which Mark is complaining about and I think you're right it's happening to a certain extent is editorializing.

KING: Yes.

FULGINITI: Which is happening by people even at "Court TV" instead of just presenting the case and presenting both sides of the case they tend to offer their opinion about the case more and more frequently.

GERAGOS: Well, and you know what they call it? They call it, when you confront them and I talked to Nancy about it she calls it advocacy journalism. What does that mean advocacy journalism? Journalism by definition is not supposed to -- you're not supposed to be an advocate, so the idea of reporting the facts in a journalistic manner has been lost and they've completely lost it. It's de- foxification (ph) of the criminal justice system.

KING: What do you make of these cases, Mary, of teachers over the age of 30 sleeping with students under the age of 15?

FULGINITI: Yes, there's been a lot of publicity about teachers obviously that have been, you know, victimizing young children nowadays and we're seeing a lot more women actually and men that are doing it and that are being publicized more so.

And, I have a zero tolerance policy actually when it comes to adults that victimize children regardless of gender. My problem is, is that in the court of law there seems to be a double standard somewhat that's being imposed.

KING: How criminal is it if the 15-year-old is a willing 15- year-old?

GERAGOS: Well, I had a case about five years ago locally here where I represented a politician's wife whop was prosecuted for having, supposedly having sex with the babysitter and an old-time lawyer, friend of mine, good friend of mine, still practices said to me and I've never forgotten this, he says "How in the heck can you prosecute a guy or a woman in this case for something that every guy fantasizes about"? And, you know, there is to some degree that problem with these cases. If it is a male with an underage female, that's one kind of a prosecution but if you're talking a female with an underage male, and the male is over 14, between the ages of 14 and 17, there's not a whole lot of sympathy.

KING: The female is going to get the better break though isn't she?

FULGINITI: Yes, I mean we just saw it in Florida happen. You know she got probation, one of the teachers down there who was 24 years old that had had sex about four or five times with a 14-year- old.

The bottom line is though there is no double standard in the law. There's no distinction in the law and there shouldn't be that distinction or double standard in the courtroom.

KING: We're talking criminal cases. We'll be taking your calls with two of the best, Mark Geragos and Mary Fulginiti. I've got it right.


KING: And get it wrong, only kidding. By the way, tomorrow night, Dr. Phil will be here and Wednesday night Bill Maher will be aboard. Thursday night, this is something, Eric Menendez from prison, where else? And, Friday night, Marlo Thomas discusses the incredible St. Jude Children's Hospital Research Center.

We'll be right back with Mark and Mary and later your calls. Don't go away.


KING: How did they catch her?

OWEN LAFAVE, WIFE DEBRA HAD SEX WITH A 14-YEAR-OLD: They actually, from what I understand from the police reports, the boy was bragging to a friend or cousin and the mother had overheard her and then the police department had taped phone conversations between her and the student.

KING: They got the boy to participate in the taping?

LAFAVE: Correct.

KING: You know the boy?

LAFAVE: I met the boy one time very briefly.



(BEGIN VIDEO CLIP) UNIDENTIFIED MALE (through translator): Verbally, orally I'm giving you the response that the court is legitimate, is formed by law that was ratified by the legislative authority that was elected, duly elected.

SADDAM HUSSEIN (through translator): How is it legitimate and it was appointed by the Americans?


KING: Saddam Hussein, we're talking trials tonight, this is on the Saddam Hussein trial in its third day. Mark Geragos and Mary Fulginiti are our guests. I don't regard you are experts on Iraqi law but logically...

GERAGOS: I don't know that there is any expert on Iraqi law.

FULGINITI: You're correct.

GERAGOS: It hasn't been around for too long.

KING: By logic can he get what we determine the word can he get a fair trial?

GERAGOS: You want to -- by logic and part of what he's done so far is to take a page from Milosevic's book which is to assert that the tribunal has no business and no jurisdiction over him and the fact of the matter is and you heard the little piece right there in the snippet right there is that his position is, is that America is an occupying nation.

They're the ones who appointed these people. Therefore, it is not an Iraqi system and therefore he does not want to subject himself to jurisdiction. It's very similar to what Milosevic has been doing and in that case he at least had -- Milosevic's case is in international court.

KING: You're both too young to remember but some famous people had to argue for Nuremberg because Nuremberg was on a neutral ground and they tried a nation who was at war for war crimes. Is this similar?

FULGINITI: Yes, I think very much so and I also think, you know, on Mark's point I personally think he can get a fair trial. This is a virgin court there's no question and they're learning as they go along but so were the Rwanda and the Tanzania prosecutions that were established by The Hague.

Those were courts that were originally set up at the beginning and they went through some bumps and lumps but they made it through and they ultimately set up and established a system that worked.

GERAGOS: But, you know, the problem with this in trying to do it in Iraq where you do not have a subtle society at this point is look what's happening to the defense lawyers. I think two of them have been murdered so far. KING: And Ramsey Clark said yesterday they're in danger.

GERAGOS: Right, and Ramsey Clark, if I were him, I wouldn't leave that Green Zone. I mean he's got to have legitimate fears.

KING: Is he crazy for what he's doing?

GERAGOS: Yes, absolutely. I mean Ramsey Clark is a brave, courageous lawyer. You know, about what was it three years ago he came here to the Central District and joined in a lawsuit in order to try to do something with the GITMO detainees and was thwarted people -- and he was just absolutely beat up over that everywhere and look where he was. He was two years ahead of his time I mean in terms of detentions and abuse and now you've got Senator McCain (INAUDIBLE).

KING: Do prosecutors get mad at the Ramsey Clark type who take on cases in which they may be right but 95 percent of the public disagree with them?

FULGINITI: No, I mean you really can't. I mean as a prosecutor, you know, there has to be defense attorneys out there that defend people even if it promotes...

KING: We want that, if we didn't have that...

FULGINITI: Of course we do. It's essential to I think the proper administration of the criminal justice system and the more zealous the advocate frankly the better the system operates.

KING: Why do lawyers get -- for example, if Saddam Hussein right now had a heart attack you would expect a doctor in that courtroom to rush right up and help him and no one would yell at the doctor. Why do they get mad at the lawyer?

FULGINITI: Well, you know...

KING: Why?

FULGINITI: Poor lawyers, we're the brunt of all the jokes.

KING: I mean why? They're both doing the same thing.

FULGINITI: Yes, you know...

KING: Doing their job.

FULGINITI:'s true they are doing their job but I think a lot of times the lawyers take the heat for a lot of the issues and a lot of the positions that they advocate here.

KING: Mark, what do you make of allowing defendants to examine witnesses as they have been in Iraq?

GERAGOS: Well, I think the whole idea of whether somebody can act in pro per as we call it here, as their own lawyer, here you have an absolute right to it within limitations. KING: But not in a trial if you're questioning and I can get up then.

GERAGOS: Exactly. They won't let -- they won't let you do that. To a certain extent though you could make the argument that because the, you know, two of these defendants have had their lawyers murdered within the last month and a half how are they going to get a new lawyer that's going to get up to speed that's going to know the case? So, to some degree you've got to accommodate that.

KING: OK, Mr. Schwarzenegger will have a meeting on Thursday concerning Stanley "Tookie" Williams now scheduled for execution a week from tomorrow, co-founder of the Crips gang, convicted of four brutal murders which he says he's innocent of and has since become apparently a stellar citizen writing children's books and the like. What do you make of it, Mary?

FULGINITI: Well, you know, for a lot of individuals and I'm not necessarily one of those individuals, they have a difficult time with this case because he has done so many good deeds while in prison.

But I think the issue here isn't whether or not he's done the good deeds or not. It's whether or not those good deeds should overturn a unanimous jury's decision with regard to the four murders that he, you know, committed here at least he was convicted of committing 26 years ago.

KING: How do you deal with that as the governor?

FULGINITI: You know, I think Governor Schwarzenegger has made it pretty clear on prior cases that he doesn't see the mitigating factor good deeds done in jail. In fact, he thinks that that is what defendants should be doing while in jail, so therefore I don't think he's going to overturn it.

KING: Many years ago, Mark, in a historic case in New York, Louie Nizer, the famous Louie Nizer defended someone who was facing the electric chair then in New York and he proved to the parole board, the guy didn't come out of jail that this was not the same man. This man had changed. So, they were executing a good guy.

GERAGOS: A different man. Right, well there's a real irony to this. We've had within the last, what, six weeks we're up to maybe our 1,000th execution. At the same time, we've had a situation where we're now over 100 exonerated inmates who were on death row. Does that mean that out of that 1,000 that we've executed that ten percent of those have been innocent?

And do we at this point -- what is the point of executing people? I mean we now have a case that's being reported where the 17-year-old was executed down in Texas and it's entirely possible now, in fact maybe likely that he was factually innocent. If that's the case how do we deal with that?

KING: How do you address that grievance? FULGINITI: I agree. No, I agree that there are definitely issues and you've got the Innocence Projects and a number of other projects and a number of other projects out there that are trying to exonerate those that are on death row but that's different than the Williams case. OK, the Williams case, although he's denying that he committed the crimes, the main crux of his argument is that he's been doing such good deeds. He'll do more good alive than he will do executed.

GERAGOS: Well, I don't know what is the point of executing him? Why?


GERAGOS: If the governor wants to solve this problem, I'll tell you...

FULGINITI: ...because that's the law in California Mark.

GERAGOS: ...take a page, well, you know, at certain points...

FULGINITI: But it is.

GERAGOS: ...he should be brave and what he should do is just impose a moratorium. There should not be any more executions until they solve the problem.


GERAGOS: Take a page from Illinois that Illinois commission I think did, you know, they spent an inordinate amount of time dealing with this and when you start to take a look at how the death penalty is administered in this country it's abominable because it is not based on what is the worst of the worst.

KING: Which people don't die.

FULGINITI: Yes, you know, unfortunately I think there's definitely a racial breakdown and there's a socioeconomic breakdown and that's where it does lie but whether or not you agree with the death penalty or not is a totally different issue. I personally don't agree with it either but it is the law in the state of California.

GERAGOS: So, let him -- let him be brave.


GERAGOS: He didn't win the special election. Let him impose a moratorium here.

KING: We'll take a break. And, as we go to break, here's Tookie Williams.


STANLEY "TOOKIE" WILLIAMS: I believe that regardless of whatever happens to me, whether I'm alive or executed that all of you will remember me and this isn't a goodbye. The fact of the matter is I'm preparing for life not death.



KING: We'll be going to your calls in a little while.

Mark Geragos and Mary Fulginiti, we were hoping Mary would become our next Nancy Grace and punch Mark in the face (INAUDIBLE) and a new star is born but thus far she's been contained. However, with Geragos, one never knows.

Children and the death penalty, should anyone, 17-year-old face the death penalty?

GERAGOS: No. I mean I think that that's why Kennedy's opinion, the most recent opinion outlawing it and basically it's a civilized notion. I mean at this point, I mean there is so much evidence that juveniles, especially juvenile males, don't really fully develop until they get to an older age that the idea of just killing these people I think is barbaric.

KING: What do you do about a puzzlement of a Jon Benet Ramsey, nine years, nine years people still think the father did it, the mother did it? She's got cancer. How does a former prosecutor read something like that? Are you infuriated that they didn't find somebody?

FULGINITI: Well, you know, everyone wants to see cases resolved and everyone wants to see the appropriate people that committed crimes obviously brought to justice but that doesn't always happen I mean. And, in that case, it's frustrating but we have no idea why, you know, it wasn't ultimately charged, you know.

Obviously, they didn't have sufficient evidence against either of the parents and for all we know, because we really don't know a lot about the investigation because once again it was pretty close to the vest, you know, who else was suspected of the criminal behavior.

GERAGOS: Yes but, you know what the problem was and I hate to just make this a pile on the media but look what they did to the Ramsey family and look what they did to the poor brother, what they did to Patsy, what they did to the father and I mean these people were just put through the mill.

I mean they spent years and Lynn Wood spent so much time having to go back and deal with the tabloids and everybody else who would just print stories that were not based on anything and just destroyed the family. I mean and so from the family's standpoint as well this idea of just an accusation by tabloid I think is just awful.

KING: OK. How would you view a decision like should Alito go on the court? What would you look for? Does he just have to be a good, very good lawyer, good judge? FULGINITI: No, more than that obviously. This is the highest court of the land so you're looking...

KING: What do you want?

FULGINITI: ...for somebody with, you know, the appropriate judicial temperament who's got what I would call the right judicial reasoning.

GERAGOS: Like Harriet Miers?

FULGINITI: I'm not talking about -- first of all, I think she's just been so unfairly besmirched by other people.

GERAGOS: Why is it unfairly? Wait, was the Bill Maher line? She was the most qualified person within 300 feet of the Oval Office.

FULGINITI: We're not talking about Harriet Miers. We're talking about Judge Alito now.

KING: All right.

FULGINITI: And I think you're not only going to look at his judicial temperament, his reasoning but obviously his qualifications because that's an essential component here. And, I think you want to look at all those. Is he an ideologue or is he somebody that will follow and respect judicial precedent?

KING: Well what do you want? Do you want an ideologue...


KING: ...or a precedent? You don't want an ideologue?

FULGINITI: You don't want somebody -- I don't want an ideologue. We want somebody that will follow judicial determinations and precedent because that's the whole point of stare decisis. That is the seminal, you know...

KING: Even though you may disagree with it?

FULGINITI: Even if I disagree with some of the decisions that's absolutely right. And he has stated, of course, that he has, you know...

GERAGOS: That's not what the right wing wants. The right wing Republican contingent...

KING: They want an ideologue.

FULGINITI: Oh, absolutely right they want an ideologue.

GERAGOS: ...wants an ideologue. They don't want somebody...

KING: And the far left wing wants an ideologue (INAUDIBLE) right? GERAGOS: Right, I mean so each side wants -- I often laugh when you're picking a jury and you tell the jury, "We're here to find fair and impartial jurors," I don't think that's the case.

Generally, it's "I want somebody who is going to vote for me" and they want somebody who is going to vote for them. It's the same thing on the Supreme Court. I mean if you actually kind of scratch the surface on both sides of this they want somebody who is going to vote for their agenda.

KING: The Supreme Court is going to review an Arizona law limiting the use of the insanity defense. Did you ever come up against it when you were a prosecutor?

FULGINITI: You know I didn't.

KING: Ever defend someone using it?

FULGINITI: You know I haven't. We've seen it in the Andrea Yates case, you know, where, you know, people plead not guilty by reason of insanity.

KING: Now, one would say isn't Andrea Yates insane?

GERAGOS: (INAUDIBLE) yes by any definition.

KING: What else could it be?

GERAGOS: Except, you know, the problem was in Texas is they had so changed the law and made it so restrictive, post Hinckley, the state legislature there did that virtually you could be raving mad by anyone's definition and not be legally insane and that's the problem.

And, when you inject what happened in that trial with the prosecution supposed expert witness just making up stuff on the fly about "Law and Order" that's one of the reasons that the court ended up reversing that case.

KING: What do we presume from a Robert Blake case, O.J. Simpson exonerated in one area, convicted in civil?

FULGINITI: Well, you know, proof beyond a reasonable doubt is a heck of a lot more than proof, you know, preponderance of the evidence and that's the difference.

KING: Well, what is beyond a reasonable doubt to you?

FULGINITI: It is not beyond all possible doubt and, even though I think in many of the high profile celebrity cases, I think people expect beyond all possible doubt but it isn't. It's beyond what reason, you know, and common sense would dictate and allow.

KING: What is it to you?

GERAGOS: I think that beyond a reasonable doubt is are you going to be able to get up every morning, not just for the next week but ten years from now and say "I'm still comfortable with that decision. I don't have any regrets." That's what it is.

KING: We'll take a break and when we come back, your phone calls.

Dr. Phil tomorrow night. Don't go away.


KING: Don't forget, Eric Menendez on Thursday night.

We welcome back to LARRY KING LIVE Mark Geragos, the high-profile defense attorney and Mary Fulginiti, the former federal prosecutor. Served as assistant U.S. attorney in L.A. for five years now in private practice.

Wichita, Kansas, hello.

CALLER: Hello, I'm calling about something Mr. Geragos said earlier in the program.

KING: Yep.

CALLER: About "Court TV?"

KING: Yep.

CALLER: I just -- I watch "Court TV" a lot because I'm disabled. And I became disabled because of a doctor giving me the wrong medicine and I nearly died. And I've been disabled ever since. My question for him is how he can make such a blanket statement?

GERAGOS: Do you watch it every day?

CALLER: I watch it almost every day...

GERAGOS: Do you believe that Lisa Bloom and Nancy Grace and Kimberly represent a fair and even hand in treatment of an attorney?

CALLER: Well, they have those attorneys come on.

GERAGOS: Right, and they're usually shouted down.

CALLER: And come in and argue about things. And they actually let them speak.

GERAGOS: Well, I heard the question. My question to you would be, if you want to talk about the law and you were disabled, do they have what's called a micra-cap in your state where they limit the amount that you can sue for malpractice?

CALLER: They do.

GERAGOS: Yes, isn't that unfair?

CALLER: Yes, it is. GERAGOS: If I were you, I'd be out there as an activist wondering why they don't repeal the micra-caps so you can get what you deserve for being disabled.

KING: Why do you look with a disparaging note?

FULGINITI: I don't know where you're going with the question. But I do think you're unfairly maligning the ladies of "Court TV."

GERAGOS: Which they've never done to any poor defendant. They've never unfairly maligned them.

KING: Stony Brook, New York, hello.

CALLER: Yes, thank you for taking my call. Mr. Geragos, if you had the chance for the Scott Peterson case, what would you do different?

GERAGOS: I would have let -- you know, I would have let cameras into the courtroom. I've said that. I argued for no cameras in the courtroom and I thought at the time that that would dampen interest.

Because I was so -- once we went to all the jury questionnaires, we could not get what I thought was a fair cross-section. I kid people, we'd have 23-page questionnaires. And even the guys who were illiterate would write, "Scott Peterson guilty."

And the Buddhists said that they would make an exception and drop the pill on him, in terms of the death penalty. So I thought if we didn't have TV, that we'd dampen down the interest. And I think that was drastically wrong.

KING: But if you had said it would have happened, it would have happened? The prosecutor would have agreed?

GERAGOS: I think that they would have had a lot more trouble justifying keeping cameras out, if the defense had been supportive of it.

KING: Mary, what do you think of cameras in courtroom?

FULGINITI: Oh, I'm surprised you're taking that position. But I don't know, what is the benefit that you would have found from cameras in the courtroom for the defense?

GERAGOS: Because I think, unfortunately, when you have somebody -- and he was at that point so reviled, that the jurors can't help but kind of pick that up through osmosis in the community.

I think that the community would have gotten a better idea of what was going on in that courtroom if they had seen the witnesses for themselves, as opposed to having it filtered through the commentators.

Because anybody who was in that courtroom will tell you, what you would hear or see on TV at night, didn't bear any resemblance to what was going on in the courtroom. I think that was a problem. FULGINITI: Well, interesting because I think that cameras in the courtroom typically tend to exacerbate the case and I think the media attention...

GERAGOS: That's exactly....

FULGINITI: ... that I think its brought to, tends to hurt the defense, as opposed to help them. Especially in this type of case where, frankly, I think -- it was an uphill battle.

GERAGOS: ... I would agree with you. But I've talked about -- I've done a couple of seminars and speaking engagements with Tom Mesereau as well. And Tom came to basically the same conclusion. It probably would have been better to have Michael's case televised as well, because people would not have thought that he got off. They would have understood that there was no evidence.

KING: What do you like better, prosecution or defense?

FULGINITI: Oh, tough one. I think as a prosecutor everyone thought I was a namby-pamby, and therefore much more defense-oriented and minded. And as now a defense attorney...

GERAGOS: That is such a joke.

FULGINITI: ... wait a minute. I was fair. I was impartial.

GERAGOS: We had a case together. She was -- I still got her footprints on my back.

FULGINITI: That is so not true.

GERAGOS: She is hardly a namby-pamby.

FULGINITI: I came from the defense background walking into the prosecutor's office, so I had a different perspective. And I think because of that, it had my eyes open.

KING: What kind of case was it?

GERAGOS: We had a medical marijuana case together. And she prosecuted. She never should have prosecuted that court case.

FULGINITI: It was a very difficult case.

GERAGOS: She says that the kid got off, but he never should have been prosecuted.

FULGINITI: He was given a very good deal. And he walked out of that courtroom.

KING: It was a plea bargain?


KING: Ladysmith, British Columbia, hello. CALLER: Hello. This question is for Mark or Mary.

KING: Yes.

CALLER: I've lost two children, a 6-year-old and a 12-year-old, and I seem to keep hitting a brick wall here trying to get information from the police or, whatever I try to do, to get justice in this.

KING: Were they killed?

CALLER: My 6-year-old, he was run over. And the police asked me if I wanted charges laid. My 12-year-old was murdered. I know he was murdered. I've got evidence and they won't even listen to me.

GERAGOS: Well, you know, that's...

KING: I don't know the Canadian laws.

GERAGOS: ... I don't know as well. If you were here in California, I'd advise him, obviously, to seek out a personal injury lawyer and have that personal injury lawyer investigate the case.

And if they think that you've got a case, one of the great things about our system is that that lawyer will take the case on a contingency and pursue it.

KING: We're not going to ask about the case in Washington because your firm is defending Scooter Libby, right?

FULGINITI: There's a gentleman in my firm that's on the team, yes. So I'm not able to comment, I'm sorry, it's off the table.

GERAGOS: We can't comment?

FULGINITI: I can't. I can only kick him under the table if he says anything inaccurate.

GERAGOS: Don't you think -- no, can you explain to me? Because I went through, obviously in representing Susan McDougal in the '90s when the Clinton administration was under siege in this country. And what strikes me here is the lack -- where is all of the outrage about this case?

And where is all of the questions about -- well, you don't see nonstop cable coverage of Scooter Libby, do you? But boy, Susan McDougal, President Clinton, Hillary Clinton.

A day didn't go by when the cable channels were absolutely pursuing this story with abandon. And I wonder if that isn't the vast right-wing conspiracy in action, as Hillary would say, because I don't understand why people aren't asking the question, what did Scooter Libby tell Dick Cheney? And what did Dick Cheney know? And how did that memo get out?

KING: Without commenting on a case, Mary, you can comment on this point. FULGINITI: I can comment on the media attention. I think the world has evolved since when you handled the McDougal case. And the media is now really been covering different types of cases. We're covering Aruba, they're covering George Smith. And those are the cases that are of interest to the country.

GERAGOS: I think that if this were a Democrat, if this were a Democrat in a Democratic administration, and if you had a Republican- controlled House or a Republican-controlled Senate, you'd see a completely different situation.

And the same thing right now, if you had a Democratically- controlled Senate or Congress, Congress and the Senate should be investigating this case and should be investigating what the White House knew.

KING: We'll take a break and be right back with more of Mark and Mary. This could be a new show , Mark and Mary in the morning. Like it?

FULGINITI: In the morning?

KING: We'll be right back.


KING: Bill Maher returns Wednesday night. With us Mark Geragos and Mary Fulginiti. The caller is from Ottawa. Hello.

CALLER: In the cases of students and teachers, isn't it the duty of the teacher's defense council to raise the constitutional argument that the students have the right to have sex. And wouldn't defense council be remiss in not arguing the constitutional defense, especially since the age of marriage in many jurisdictions is 12 and 14.

One other thing, don't prosecutors often, when they don't have the evidence, just prosecute on the basis of what they think the jurors' gut reaction will be as in the Scott Peterson case?

KING: Mary?

FULGINITI: With regard to the first question, you're right, in some states the age of marriage is low. In Georgia, it is in particular. So there is somewhat of a conflict in the law as to whether or not they can be married and whether or not they can continue to have sex post marriage.

But in the majority of states, it's a criminal statute that governs. It makes it unlawful to have sexual conduct with a minor.

KING: Minor is --

FULGINITI: Minor is typically under the age of majority, 18. And then depending on what age it is, there can be different consequences. Under 16 or under 14. So as for this constitutional defense of being able to have sex, you know, there isn't, to my knowledge, anyway, any constitutional defense that allows someone to have sex. However in those states where you have the marriage laws, there will be an issue to be raised.

KING: A minor can buy a condom, right?

GERAGOS: Yes. And with parental notification, minors can get abortions, minors can do a lot of thing.

KING: So if a 16-year-old is a willing participant with a 30- year-old teacher --

GERAGOS: Right. I have had a lot of trouble -- and this gentleman does make a point. In California, we do have a constitutional right to privacy. And if you have a constitutional right to privacy that's more expansive than the U.S. right that's been read in through Griswald and Roe v. Wade, there's an argument that that can happen. If it's consensual.

KING: What do you personally think, Mary, is wrong with the teacher? what do you make of it?

FULGINITI: I have a really difficult time with teachers and people in positions of authority, trust and responsibility. And they're abusing that with minors, period. I mean, these young kids. You can say, oh, yes, they're 14 or 15.

GERAGOS: I don't disagree. I hate to say it, I don't disagree if it's a male teacher with a female. I think that that's always wrong, the male should not be with an underaged female. I don't think when you switch it around -- I don't think that's a problem.

FULGINITI: Oh, you're going to argue, this is a double standard.

GERAGOS: It is. I admit to it. I cop to it. It is alive and well.

FULGINITI: Because you remember being 14 or 15 years old.

GERAGOS: Both boys are stuck maturity wise right there.

KING: Why do you think a 34-year-old would sleep with a 14-year- old? Why do you think?

FULGINITI: You know what? All I can think is that maybe the maturity level of the 34-year-old, look at the woman in Florida, she's 24, but they said she had the maturely level of a 14-year-old. She had a lot of emotional issues.

Look, you have people today that are married to individuals that are far younger than they are, 20, sometimes 30 years.

KING: Morrow bay, California.

CALLER: Hi, Larry. I love your show. I have two questions, first for Mark Geragos and the second for Mark and Mary. Do you still thing that Scott Peterson is guilty --

KING: Not guilty.

CALLER: Not guilty, excuse me. Do either of you think that there's any chance that you can legitimize hypnosis to find out if a pathological liar, if you can sort through to get to the truth with them? Thank you.

KING: Okay.

GERAGOS: Well, as for Scott, I said it before when I've talked to you, I've never been convinced of his guilt since I've taken a look at the evidence and since talking with him. As for hypnosis, interestingly, in that case, a couple of witnesses that were -- that I thought were very important in that case ended up being hypnotized by the prosecution within a week after or two weeks after Laci going missing. And their testimony was ruled inadmissible.

And not only because they did not adhere to the standards. You have to have certain standards to let the hypnosis come in. I think actually one of the area areas where that presently is inadmissible where you might be able to eventually kind of break down the walls is in a polygraph. Because there, with a good polygraph operator, and there's a guy you probably know that I use locally here, they can actually, I think, be very helpful.

FULGINITI: But the issue there is it has to be administered by a good polygraph operator. There are too many out there that don't adhere to the same standards.

GERAGOS: No, that's true.

FULGINITI: That's why they're typically not admitted in court.

GERAGOS: Exactly.

(News Break)

KING: We'll be right back with Mark Geragos and Mary Fulginiti right after this.


KING: Corning, New York, hello.

CALLER: Hello. Hello?

KING: Go ahead.

Caller: My question for -- I'd like to get the opinions of Mark and Mary regarding the Tookie case. And I would first like to say that I do agree with Tookie. I do believe that he will be remembered.

I think that -- I would hope that he'd be remembered, though, for the truth, that he did murder, and was convicted, of four people. And beyond that, he's an admitted notorious beginner of -- excuse me, a beginner of a notorious gang that undoubtedly destroyed lives of hundreds and hundreds. * CALLER: Destroyed lives of hundreds and hundreds of generations.

KING: Mark has already said you would commute.

GERAGOS: I would not only commute. I would impose a moratorium on the death penalty.

Look, the caller is right. You can't excuse the formation of the gang, but it's not like if there wasn't a Tookie Williams that there wouldn't have been a gang to take its place. I mean, there's gangs springing up here in L.A. You know, we've got gangs on every block virtually.

So I think what do you do with something like that? And one of the solutions to the problem is what this guy is doing. And why do you want to stop that? Why would you -- if he's saving innocent lives now, why would you want to impede that?

KING: You're against the death penalty.

FULGINITI: You know, I am personally against the death penalty. But, you know, to the caller I sympathize, obviously, with the people that are supporters of Mr. Williams.

But here I'm going to have to put on my prosecutor hat. Because it is the law in the state of California. And I don't think that we should arbitrarily just set it aside for one person versus the next.

And I think this case is particularly difficult...

GERAGOS: Which is why you should impose a moratorium.

FULGINITI: ...because there are four heinous crimes that were committed and we can't forget that although it was a long time ago. And he established one of the most notorious L.A. gangs.

In fact, I prosecuted one of the head of...

GERAGOS: But tell me, what is the point of killing him versus...

FULGINITI: No, I'm personally opposed to that.

GERAGOS: Basically, the difference is does he die at the hand of the state or does he die in God's hands? What's the difference? He's not going to - nobody's asking him to get out of it.

FULGINITI: If I'm going to get into a discussion on the death penalty, I am personally opposed to it. I don't think it deters criminal activity. I think it is racially imposed and there are statistics and studies out there.

GERAGOS: So you can't just throw that out and say kill him anyway.

FULGINITI: But you can't throw out the law, though, either and that's the law. I mean that may be my...

GERAGOS: At a certain point, somebody should say...

FULGINITI: Legislate it, legislate it.

GERAGOS: Well, I don't even--the governor's there and the governor's there to lead and the governor's got the power. And it is constitutionally protected. Impose a moratorium.

KING: Oakland, California. Hello.

CALLER: Yes. Mr. Geragos, earlier you said private citizens should not conduct investigations.

GERAGOS: No, I didn't say that. Private citizens have every right in the world to conduct investigations. I think that when a media gets involved, a media outlet and, you know, it's only for ratings, in order to conduct an investigation while there's an ongoing criminal investigation.

I think there's a real problem with that, especially when you have got Dutch law, which allows these guys to be put in custody for a long time.

KING: What's the question, sir?

CALLER: Well, it was just in regard to the previous caller who said that his son was killed, he has evidence and the police aren't doing anything.

I was wondering if Mr. Geragos would say the same thing to this citizen, not to conduct an investigation?

GERAGOS: No, I think there's a qualitative difference. If the police are actively investigating the crime, I think that you should let them do their job.

If the police are not actively investigating the crime or have closed the case or have put it into a cold case status, you've got every right in the world to do it.

KING: To Rosebud, South Dakota. Hello.

CALLER: Yes, thank you for taking my calls. Seasons greetings to the panel.

Mr. Geragos, with respect to the nomination for Judge Alito, constitutional law, I think, it's is a very difficult area. But how does -- when the founding fathers sat down and made their -- established a constitution, minorities were not included?

Minorities in their minds didn't even exist as human beings. The Sandra Day O'Connors of the court need to be on that court because they have a broader mind. The Alitos of the court, I'm not saying he should or shouldn't be put on the court, but it disturbs me with respect to the way they think. GERAGOS: You make a great point.

Because this whole argument that's going on amongst the, what are called the strict constructionists, and the people who believe in the original constitution versus a living constitution fail to accept the fact that the original constitution, as we know it today, is something that America would not accept. They would reject it out of hand.

So this idea that you're going to go back and we're going to try to look at everything through the lenses of the founding fathers and look at it their way, we would never accept a society that the founding fathers accepted.

So it has to be a living constitution. And that's what they wanted. That's what Jefferson wanted.

KING: That's why they were mentors.

FULGINITI: That's exactly right. It was never intended to be static. Obviously we're not a static society. It is meant to be evolving.

KING: That's right. What does it say about seat belts? Just a thought. We'll be right back.

GERAGOS: Or the Internet.

KING: Or the Internet or airplanes. We'll be right back with our remaining moments. Don't go away.


KING: Spokane, Washington, hello. Spokane, hello.

CALLER: I would like to ask Mark why sodium pentothal couldn't be used to prove if someone's innocent or guilty?

GERAGOS: You know, all of those, what I would call extraordinary techniques, in order to be admissible, you have to go through the evidence code.

And the evidence code here in California is very similar to the federal rules of procedure. You have to be able to say that it's accepted or generally accepted in the scientific community. So until such time...

KING: Is it or not?

GERAGOS: No, sodium pentothal is not. I mean, look, up until Scott's case, mitochondrial DNA there was never an appellate opinion on mitochondrial DNA. So that was the first time we did a Kelly Frye hearing on that. GPS, never until that case.

FULGINITI: Yes, but DNA evidence had been admitted in many state courts.

GERAGOS: Mitochondrial only one other state prior to that.

KING: What if the pharmaceutical agency came up with a drug in which you would tell the truth. Would that not just solve a lot of the criminal system?

FULGINITI: Wouldn't that be brilliant? It would eliminate the need for lawyers. And we could just use the pill.

KING: Pathological people would kill themselves. Wouldn't you like that or not like that?

GERAGOS: Somebody would come up with an antidote. They'd come up with an antidote to that pill. You know, it's kind of like, you know, they have for urine tests, a way to mask it. So maybe somebody would come up with a way to mask it.

KING: Prediction, Schwarzenegger, this Thursday, meets him, what is going to do?

FULGINITI: Decline. I think he's going to decline. I think he stated before once again that he doesn't believe that good deeds after are...

KING: Will he go public and make a little press conference out of it?

FULGINITI: You know, I think he will because this is such a high profile case. It has gotten so much attention from the media and various entertainment and celebrity individuals that I think he will try to explain himself in his decision.

KING: Mark?

GERAGOS: There's only one way that he can commute this sentence or impose a moratorium. An I hate to say it is he's going to -- you know, he just hired a very liberal Democrat as his chief of staff, and he's been pilloried by his base.

So the only way that he can do this is if he simultaneously announces that he's switching parties and joining the Democratic party. Otherwise, I don't see how he does it politically, because his base will revolt.

KING: Even though the state probably would favor no death penalty or maybe not.

GERAGOS: Well, you know, the problem with the death penalty...

KING: We're running out of time. Is what?

GERAGOS: ...they never ask the other question about life without. When people are presented with life without, the support for it plummets immediately.

KING: Thank you both very much.

Dr. Phil joins us tomorrow night.

Bill Maher on Wednesday.

And on Thursday night Eric Menendez.

Right now we turn things over to New York. Gotham. But right now Anderson Cooper and "AC 360" in the Big Apple.

Mr. Cooper it's yours.

ANDERSON COOPER, CNN ANCHOR: Larry thank you very much. Man, what a week you've got coming up. Incredible. Eric Menendez, who knew. Man. All right. We'll be watching. Thanks Larry.


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