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Nancy Grace

Three Hikers Lost on Mt. Hood

Aired December 12, 2006 - 20:00   ET

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

NANCY GRACE, HOST: Tonight, three men stranded on treacherous Mt. Hood, Oregon, two from Dallas, one from Brooklyn, last known alive in a cave hollowed out of ice and snow two miles above sea level, 2,000 miles from home. Who leads these adventure expeditions? Are hikers told the likelihood they won`t make it down alive?
And tonight: It hit the box office by storm, grossing millions, but tonight, "Borat" in court, battling a lawsuit by boozy frat boys who make complete jerks of themselves on the big screen. Now they`re blaming "Borat" and all the booze they drank. FYI, people, booze is not a legal defense!

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: The three missing climbers left their SUV at a parking lot at Cooper Spur Wednesday with a note inside.

UNIDENTIFIED MALE: So we had a little information on their route.

UNIDENTIFIED FEMALE: The note says they planned to go up Mt. Hood on the north face and come down the south side to Timberline by Saturday. In an emergency, they said, they would return down the north side, to the Cooper Spur area.

UNIDENTIFIED MALE: (INAUDIBLE) you know, if you had, you wouldn`t be doing this. We always hope that we`re going to find those people.

UNIDENTIFIED MALE: We`re in our third day. We`ve got two scenarios. One`s a rescue. We have had a known location of the climber that`s basically high, between the 10,000 and 11,000-foot level up on Mt. Hood on the north side, we think. We`re also searching for two other people that were in the climbing party.

UNIDENTIFIED MALE: Today is a day for courage and for prayers. Courage can help us see through this snowstorm, and our prayers can literally move mountains. We look forward to welcoming Kelly and Brian and Nikko home again very, very soon.

(END VIDEO CLIP)

GRACE: Good evening, everybody. I`m Nancy Grace. Thank you for being with us tonight. Three American men stranded on treacherous Mt. Hood, Oregon. Out to Rob Marciano, meteorologist and CNN field reporter. What`s the latest in the search, Rob?

ROB MARCIANO, CNN METEOROLOGIST: Well, they haven`t found them. That`s the long and short of it. They went out there today and the weather was not ideal, but certainly better than it was yesterday. There was not as much precipitation. The winds, although yesterday blowing 70, 80 miles an hour, today down to about 50, 60 miles an hour. That was enough to cause blowing snow. That was enough to cause low visibility. That was enough to get the helicopter back down on the ground.

So even though today was better than yesterday and better than it will be tomorrow, they didn`t find the hikers. And if there was a day where they would come down on their own accord this week, today would be the day. So that`s pretty much the long and short of it, not good news tonight.

GRACE: Rob also, tell me about the role an impending blizzard is playing in the search plans.

MARCIANO: Well, they want to get at them today. And there`s another storm coming in tonight. We have three storms lined up across the Pacific Ocean. The one that came in yesterday brought in high winds along the coastline, 70 miles an hour at that altitude, 70, 80 miles an hour with wind and snow. Today, we didn`t have as much precipitation. Now we have another system.

You`ve got to understand, any winter storm that comes along in this part of the world pretty much is going to be a blizzard at that altitude. When you`re talking about 7,000, 8,000, 9,000, 10,000 feet, when there`s nothing to block these storms when they come in off the Pacific Ocean, Mt. Hood is pretty much the first thing that they hit at that altitude. They are just going to get hammered by the full force of these storms that come in.

So even though yesterday`s storm was by all means really average for a winter storm, tomorrow -- tonight and tomorrow`s storm average, it`s just bad news at that altitude. Unfortunately, Thursday night`s is going to be the worst one of them all, and that could really, really be bad. That one`s going to be a strong one.

GRACE: Now joining us from AM 860 KPAM, on Mt. Hood earlier today, Tim Hohl is with us. Tell us about the search conditions, Tim.

TIM HOHL, KPAM, AM 860: Well, Nancy, the search conditions early on this morning seemed the best they were going to be, compared to what we saw yesterday with blizzard-like conditions and what things are going to be like tomorrow or the next couple of days. At one point, it really wasn`t snowing. The winds were calm. But this is, of course, at the Cooper Spur ski area, which is the main media center and also the base camp.

And a couple of times throughout the day, we did get glimpses of the mountain, but not very many. It didn`t show up at all yesterday, as far as we could see, and we just got glimpses today. And in monitoring the radio traffic between the searchers up on the mountain and the base camp, you know, they were talking about visibility being on and off at times and really never even having an opportunity to see the top of the mountain.

GRACE: Let`s go out to the lawyers. Joining us, Jason Oshins and Daniel Horowitz. Out to you, Daniel Horowitz. These so-called adventure tours that often take people up on expeditions to the tops of mountains, they take them hiking, diving, whitewater rafting -- in a case like this, do they tell people they may not make it down from the top of the mountain, Daniel?

DANIEL HOROWITZ, DEFENSE ATTORNEY: You know, Nancy, I think that the American psyche loves this kind of adventure. And when we do these things, we know that there`s a grave risk. We never believe it`s going to happen. But informed consent is the issue you`re raising. Do people who go on these adventures know that they risk death? Yes, they do. That`s what makes it thrilling. That`s what makes us tough Americans. And sometimes we pay a price for. But let`s help save these people. That`s also what Americans do, we back each other up when we`re in trouble.

GRACE: Out to you, Jason Oshins, a veteran defense attorney and civil attorney. You know, I`ve got one of these "presumption of risk" waivers that a lot of these expedition tours make you sign. Are they even worth the ink they`re printed on?

JASON OSHINS, DEFENSE ATTORNEY: No. In general, they`re usually not because they`re not gone through in a focused way, explaining everything in detail. So they certainly have their pitfalls in them. But part of what Dan was talking about is the assumption of risk. And obviously, everyone assumes some sort of risk when they go on these adventure packages.

GRACE: I want to go straight back out to Tim Hohl. He was there on Mt. Hood today. I understand that they were last known to be alive, at least one of them, in an ice cave. What is that?

HOHL: It`s a snow cave that actually all three climbers, from what we understand, dug and spent the night in Friday night. And from what the climber Kelly James was able to tell his wife and his son during his brief four-minute call, he was in the cave and...

GRACE: Hold on, hold on, hold on, hold on! We`re showing you what an ice cave is right now. This is what Tim`s talking about. Go ahead, Tim.

HOHL: Yes, they had dug this cave. He was by himself and the other two had set out back down the mountain for help. And his wife and sons who spoke with him during this brief phone call, about four minutes, got the sense that he was injured in some way, although he never came right out and said it. And the thinking has been on the part of searchers that since the weather`s been so poor, that maybe the two other climbers who left their friend behind and headed down for help also have dug a snow cave, which their survival skills would tell them. We`re dealing with three very experienced climbers here, each of them with probably 25 years of experience.

GRACE: Out to Steve Rollins, a special guest joining us tonight. Steve is the president and rescue leader of Portland Mountain Rescue. Steve, thank you for being with us. Why haven`t choppers, why haven`t helicopters gone up?

STEVE ROLLINS, PRES., PORTLAND MOUNTAIN RESCUE: Really, the weather conditions haven`t been suitable not only for flying, but also -- I led a team up the mountain yesterday and we had visibility so poor, probably at best, we could see 20 feet. That kind of visibility, a helicopter isn`t going to help you find anybody on ground.

GRACE: And of course, we all remember the May 2002 military chopper crash. We saw it over and over and over on TV. There`s an ice cave that we were talking about earlier. We`re going to go to Steve Rollins on that, as well. There`s the video from May 2002, when a daring -- and you see even in May, how icy and how terrible the conditions are. That helicopter went down, causing fatalities, in an effort to save hikers.

Back to Steve Rollins. So that is a perfect example as to why helicopters, choppers have not been sent in yet.

ROLLINS: Yes. Actually, (INAUDIBLE) so I`m intimately familiar with the dangers of helicopters on mountains. And yes, that`s a perfect, beautiful day, and yet we had problems with a helicopter then. So in flying helicopters around the mountain, it`s dangerous. Poor weather like this, it`s even more dangerous.

GRACE: And Steve Rollins, everyone, president and rescue leader with Portland Mountain Rescue -- Steve, these guys took every precaution. I`m talking about three American men that have braved treacherous Mt. Hood in Oregon. Kelly James, 48. He`s an architect, Dallas, Texas. Brian Hall, he`s 37. For Pete`s sake, here`s a guy that`s a personal trainer in tip- top physical condition. Jerry Nikko Cooke, aged 36 -- he`s a negligence lawyer.

Steve Rollins, these guys left letters, I believe, behind in their vehicle, explaining where they were going, their whole route. A lot of people don`t think to do that. It seems like they had every base covered.

ROLLINS: Yes, apparently, they were very experienced climbers and they tried to leave some indication of what their plan was, and that`s certainly helpful to us. Without that note, I think we`d have even less information about what their plan was.

GRACE: Where do you think they are, Steve?

ROLLINS: Boy, I think that we have that one climber that is reportedly very near the summit, in the snow cave. The other two, we honestly don`t know. Could be anywhere on the mountain.

GRACE: Now, how did it go down, Art Harris? I mean, why is one guy left in a snow cave and the others have left?

ART HARRIS, INVESTIGATIVE REPORTER: Nancy, according to what he told his son when they had that brief four-minute conversation, he was tired and the others went for help. You know, according to that conversation -- you know, he sounded exhausted, according to his friends. They sensed something was wrong but wouldn`t go so far as to say that he was injured. They didn`t know. But the others went down looking for help, down the north side. That is not the way people usually go down that mountain after what they call a fast and light climb. The idea was to go up fast one day, come down the next, very little gear...

GRACE: Wa-wa-wa-wa-wait! Go up Mt. Hood in one day and back down Mt. Hood?

HARRIS: It`s called light and fast time...

(CROSSTALK)

GRACE: ... one day?

HARRIS: Well, these guys did not want to pack a lot of gear, and they were trying to get in shape for bigger mountains. I think, from what I hear...

GRACE: Everest. They wanted to do Everest.

HARRIS: Yes, Kelly James was looking at Everest down the road and wanted to get in shape. And what better way than to zip up there, 11,000 feet, carrying what you can, but not wanting to take the time to pack a lot.

GRACE: All right. You know what? Maybe I got this bass-ackwards, but Steve Rollins, I understand fast and light climbing, when you don`t carry as much gear as you typically do. But is it feasible to go up Hood in one day and back down the next?

ROLLINS: Yes, I`ve actually done a very similar climb, starting at Tilly Jane, the Cloud Cap area, going over the summit and down to Timberline Lodge. I don`t remember exactly, maybe eight hours.

GRACE: In these conditions?

ROLLINS: Not in conditions like this, no. This is very difficult conditions.

GRACE: OK, let`s open up the lines. But first take a listen to what police had to say.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: The weather on Mt. Hood has been terrible, mainly because of high winds and snow. As of yesterday, we had consistent 85 mile-an-hour winds above the 8,000-foot level, and so we just have not been able to get into that area.

We`ve got two scenarios. One`s a rescue. We have kind of a known location of a climber that`s basically high, between the 10,000 and 11,000- foot level up on Mt. Hood, on the north side, we think, based on a phone call that was made to his family on Sunday. And basically, we have not heard from him since.

UNIDENTIFIED MALE: This has been an extremely difficult week for the families of Kelly James, Brian Hall and Jerry Nikko Cooke. Speaking on behalf of the three families, we would like to thank everyone who is working tirelessly to bring our loved ones safely off of Mt. Hood. Our appreciation extends from the generous Hood River community to several organizations without whose help there might be precious little hope. But today, we are keeping big hope alive for our missing family members.

(END VIDEO CLIP)

GRACE: Out to the lines. Corey in Rhode Island. Hi, Corey.

UNIDENTIFIED FEMALE: Hi, Nancy. How`s it going?

GRACE: Hanging in there.

UNIDENTIFIED FEMALE: I just wanted to know about this letter they left. Was it very descriptive? And did the family call in after they were -- didn`t know show back up at home?

GRACE: Rob Marciano, what do we know? What was in the letter? What did it entail? And when were they reported missing?

MARCIANO: I haven`t seen the letter firsthand. From what I understand, actually, there were two letters. There was one that was left in their car. There was also one that was left in the ranger station. So the amount of information that they left, to talk about their route and what they planned to do, was over the top. That hasn`t helped thus far, but it did tell us a little bit of what they planned to do.

Tell you what, let`s -- let me show you -- I`ll get to it in a second. But at some point, Nancy, I want to show you the mountain and just...

GRACE: Go ahead. Go ahead.

MARCIANO: All right. Let`s get to the mountain. I`ll show you exactly how treacherous this part of Mt. Hood can be. What Steve was talking about earlier is most people -- most people go up the south side of Mt. Hood. It`s a much easier climb. But the north side is just -- it is just almost vertical. In some cases, it`s got a pitch of 60-plus degrees. And in other cases, where these guys were climbing, there was a lot of vertical ice outcroppings.

And that`s one of the reasons they were likely going up this area, this Eliot Glacier, which is just up from the Cooper Spur area. It is -- it`s got a lot of ice croppings, and folks who like to climb ice or are training for a big mountain like Everest would hit this in the wintertime.

So we`re pretty sure they went up this route. And we`re pretty sure they`re going to come down the south side because of what they told their friends and what they left in those letters. But right -- but what those letters aren`t telling us is where they are right now (INAUDIBLE)

GRACE: OK. I`m sorry, I couldn`t hear you. Are you saying they went up the steep northern route?

MARCIANO: Yes. This time of year -- I mean, you don`t typically climb this time of year, but if you are, you do, you go up the northern route. You`d better be advanced to do that. The snow is a little bit more stable pretty much because it`s ice, and that`s what you`re climbing on. You go up the northern side and you get over the top, and the easier...

GRACE: Got you.

MARCIANO: ... descent is going down the southern side. You might even take a pair of skis or glissade down to make a faster...

GRACE: Good Lord! I`m taking a look at the Mt. Hood depiction you`re showing me. And the highest I`ve ever hiked, Rob, is in the Rocky Mountains. And even when I go there in July, there`s still icecaps. There are icecaps on the top. You know, at this time of the year, it`s difficult enough to even breathe the cold air. But this picture of Mt. Hood you`re showing me, it`s almost invincible.

To Tim Hohl with AM 860 KPAM. Tim, what was in those letters?

HOHL: Well, the letters (INAUDIBLE) the one letter that was found at the trailhead with the hikers` vehicle was actually, as I understand it, written in pen on a grocery bag. And they just stuck it on the dashboard. And basically, it wasn`t very detailed. But all it said was, you know, This is who we are, we`re headed up the north climbing route and we plan on summiting the mountain and then heading down the south side climbing route and meeting our party at Timberline Lodge, which is the normal starting-off point for the south side climbing route.

But that same note also said, If we run into problems, whatever they are, we plan to come back down...

GRACE: Right.

HOHL: ... the north side route. So that is why the search for the past...

GRACE: OK.

HOHL: ... several days has been concentrating on that north side of the mountain.

GRACE: OK, so that`s an answer to Corey in Rhode Island.

Let`s unchain the lawyers again, Jason Oshins out of New York, Dan Horowitz, San Francisco. Let`s talk about the two going off to get help. Many people are viewing that as leaving the third guy behind. But under the law, Daniel Horowitz, it`s my understanding of the law that we do not have a Good Samaritan rule that forces someone to save another individual, unless they take on that duty. And I don`t see that here.

HOROWITZ: Well, of course, Nancy, you`re right. There is no Good Samaritan law. There may be a taking on of a duty because you go up there as a team and there`s an obligation to leave as a team. But you know what? They`re trying to save his life. They`re not abandoning him at all. They`re saving him, Nancy.

GRACE: I agree.

HOROWITZ: That`s a fact.

GRACE: I agree.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: We trust that God is at work here, and we have to trust him with this. And we also trust Kelly. We know he`s a fighter. And so -- and Brian, as well, is a good friend and knows the family very well. Again, we don`t know Jerry Nikko Cooke as well, but having spoken to his wife today, she speaks very well of him and he`s a fighter, too.

(END VIDEO CLIP)

GRACE: Three American men lost on treacherous Mt. Hood, Oregon, climbing up the north face, last heard of in an ice cave.

Out to Greg Davenport, survival expert and adventure traveler. Greg, thank you for being with us. You have actually holed up and survived in an ice cave before, correct?

GREG DAVENPORT, SURVIVAL EXPERT, ADVENTURE TRAVELER: Yes. More precisely, I call it a snow cave and...

GRACE: Snow cave. Thank you..

DAVENPORT: Oh, that`s OK. And ice really doesn`t provide good insulation, but a snow cave does. And getting in that snow cave is going to get them out of those elements. It`s going to get them out of the wind and it`s going to get them out of the moisture. And it`ll provide them an environment that might be as much as 30 degrees Fahrenheit.

And they can survive in that for a great period of time, and those conditions that are surrounding them are less threatening when they`re in that cave. The key with being in there, though, is they need to have some type of signal outside, or at least be -- have some way of guiding rescue to their location because when they`re in that snow cave, they`re completely blind to what`s going on around them.

GRACE: And also, rescuers are blind to them if they`re in the side of a mountain.

Out to Mike Brooks. Mike, it`s my understanding -- and I`ve never skied deep powder, but isn`t there a device that if you are caught in an avalanche or you are buried in snow, there`s some type of an emission? What is it that you can find -- they can find you?

MIKE BROOKS, FORMER D.C. POLICE, SERVED ON FBI TERRORISM TASK FORCE: That`s exactly right, Nancy. And I was talking to Steve Rollins about this today. There are personal locator devices which they could have. But again, they were traveling light and fast. And hopefully, they`re hunkered down in one of these snow caves. But there is a program on Mt. Hood that will actually give you a mountain locator unit that you can take with you when you go on hikes like this, so if something like this does happen, they can find you and find you fairly quickly.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Today is a day for courage and for prayers. Courage can help us see through this snowstorm, and our prayers can literally move mountains. We look forward to welcoming Kelly and Brian and Nikko home again very, very soon.

(END VIDEO CLIP)

GRACE: Three Americans lost somewhere on the north face of treacherous Mt. Hood. What is their assumption of the legal risk? Can they be saved? We are now into day three.

Out to the lines. Jordan in Washington. Hi, Jordan.

UNIDENTIFIED FEMALE: Hi, Nancy. I think you`re great. Listen, I`m wondering two things quickly. Is it common practice to hike during this type of weather? And also, do we know what type of provisions these men have with them?

GRACE: Excellent question.

UNIDENTIFIED FEMALE: (INAUDIBLE) prepared...

GRACE: What about it? To Greg Davenport, survival expert. Specifically, the hike at this time of year, typical?

DAVENPORT: You know, I wouldn`t do it, but these guys were highly trained. And my understanding is they were training for Everest. So it was probably in line with their training and their expectations of what they would find there.

GRACE: What about it, Steve Rollins? This time of year typical?

ROLLINS: No. Our primary climbing season on Mt. Hood is May through June. Right now, we have early season conditions, steep ice, a lot of loose rock, and obviously, severe storms, which we`re all experiencing, so...

GRACE: May through June. What happens at the end of June?

ROLLINS: The rock on Mt. Hood is not very stable, and we get a lot of rock fall in the summertime. May through June, the ice is still frozen, holds the rock in place, but we get more stable weather then.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: The three missing climbers left their SUV at a parking lot at Cooper Spur Wednesday with a note inside.

UNIDENTIFIED MALE: So we had a little information on their route.

UNIDENTIFIED FEMALE: The note says they planned to go up Mt. Hood on the north base and come down the south side to timberline by Saturday. In an emergency, they said they would return down the north side to the Cooper Spur area.

UNIDENTIFIED MALE: I mean, you know, if we weren`t, we wouldn`t be doing this. We always hope that we`re going to find those people.

(END VIDEO CLIP)

GRACE: Three American men trapped somewhere on Mt. Hood. We`re going into day three. Take a look: Kelley James, 48, Dallas; Brian Hall, 37, Dallas; Jerry "Nikko" Cooke, 36, Brooklyn lawyer. Again, day three.

And out to -- do I have Daniel Horowitz with me and Jason Oshins? Out to Jason Oshins and Daniel Horowitz. The reality is, anybody can take on, can assume this assumption of the risk. You don`t have to sign a form. Typically when I`ve gone hiking, you find your route on a map, drive to the trail head, get out of the car, and go. Nobody knows where you`re going, when you`re going to come back, Jason. I mean, they have assumed a certain degree of this risk.

JASON OSHINS, DEFENSE ATTORNEY: Oh, there`s absolutely no doubt about that, Nancy. I mean, unless there is, you know, specific danger markings set up by some municipality or entity responsibility for it, you`re at your own risk no matter what you do, whether you swim in a lake that`s unattended by a lifeguard. Any assumption of risk is you`re waving those rights by doing, you know, what is dangerous behavior.

GRACE: And on the other hand, though, Daniel Horowitz, that`s why we pay taxes. We pay taxes to a government that provides certain parental- type duties, such as picking up the trash for us, providing clean water, search and rescue efforts.

DANIEL HOROWITZ, DEFENSE ATTORNEY: Yes, Nancy, I think that the government has an obligation to save these people, even though it costs a tremendous amount of money.

But there is the counterargument that those who take the tremendous risks should bear some of the financial burden when things go wrong. I don`t agree. I think that it`s just part of the ethos of the American culture. But I can see the argument that, if you`re going to climb the mountain and take a risk, you`ve got to pay for the helicopters if you`ve got the money to do it.

GRACE: Hey, look, you know what? I`ve been paying taxes, I think, since I was 15. If I get lost on a mountain, I expect the U.S. government to try and find me. After all that money, are you kidding me?

OSHINS: Absolutely.

HOROWITZ: I`ll be there, too, Nancy. I`ll be there, too.

GRACE: Both of you.

To Steve Rollins, president and rescue leader with Portland Mountain Rescue, you know, Steve, I was taking a look at a bulletin from Mt. Hood National Forest, and it clearly states -- and this is for the south side, the easier side of the mountain -- it says, "Mt. Hood is a technical mountain." This is not like climbing to the top of the Indian Mounds, OK? It`s technical hiking. You need proper equipment, helmet, crampons, which are kind of like spurs, I believe, in the front of your shoe where you dig into the side of the ice, and an ice axe. I assume these guys had all of that, since they were preparing for Everest.

STEVE ROLLINS, PRESIDENT, PORTLAND MOUNTAIN RESCUE: Yes, they were prepared for technical climbing. The one thing I would like to point out is that it really -- the bulk of this rescue effort is done by volunteers. It`s not tax dollars that are affecting this rescue. It is volunteer rescuers that is supported by the climbing community.

GRACE: You know, I`m really a little surprised about that, Steve, that the government, with what all we pay in taxes and they boondoggle it away in D.C., it`s not part of the search effort.

ROLLINS: Well, the government is, to the extent that they are -- the sheriff is organizing the rescue. They`re there to coordinate. But when people see rescues like this, the automatic question is: Darn it, why did my tax dollars go to rescue these people?

And they don`t realize that it is climbers saving climbers. And the community as a whole actually benefits from this, because a lot of the rescues we do aren`t for climbers. It`s for day hikers; it`s for fishermen; it`s for hunters. So it`s not really the situation that you`d like to think sitting at home, thinking, well...

GRACE: Frankly, I would want my tax dollars to go to rescue a fellow American as opposed to what I see D.C. spending it on. Hold on. I`m hearing in my ear with us is a very special guest tonight. With us is the brother of hiker Kelley James, Frank James is with us.

First of all, Frank, thank you for being with us. And our prayers are with you and your family and the three hikers.

FRANK JAMES, BROTHER OF MISSING HIKER: Thank you very much. We appreciate that.

GRACE: Tell me about that last phone call out. What did you learn?

JAMES: Well, all we know now is that there was a four-minute phone call on Sunday afternoon. And my brother, Kelley, called his wife and spoke to his wife, Karen, and his son, Jason, and his son, Ford, and indicated that he was in a snow cave on the mountain.

GRACE: What was his physical condition then, Frank?

JAMES: Well, the best we can tell is that he said he was wet and tired. He seemed to be getting a little bit sleepy. So, again, it`s hard to know -- the connection wasn`t perfectly clear.

GRACE: Is the sleepiness part of some type of hypothermia, Dr. Daniel Spitz?

DANIEL SPITZ, FORENSIC PATHOLOGIST: ... can be, when hypothermia is an extreme state. Most likely he was tired from just the nature of his exertion related to the climb. You know, hypothermia is clearly the biggest problem these climbers face, and they have to get out of the elements. Eight-five-mile-an-hour winds will make hypothermia that much quicker.

GRACE: Back to the brother of Kelley James, one of the missing hikers. Frank James is with us. So at the time he called you guys, called his wife, Frank, how long had he been on the mountain?

JAMES: I think he`d been -- it started on Thursday. He and two close friends decided to try to climb the mountain. They were going to be up for a day or day-and-a-half and come down. So they went Thursday. And I think the trouble, whatever it was, probably became clearer on late Saturday, early Sunday, I would guess.

GRACE: Do you have any idea what is his injury, what happened to him?

JAMES: Well, we don`t know if there was an injury for sure. We`re just assuming that that`s the case, because his friend, his fellow climbers, are such close friends, they would never have left him behind if it wasn`t the best thing for everyone.

So we don`t know for sure, because Kelley did not indicate that he was injured in the short telephone call, but that`s sort of our assumption, is that he was injured. They built a snow cave to make him as comfortable and safe as possible, and then sought help.

GRACE: And since the time of the phone call, do we know how heavy the snowfall has been?

JAMES: Well, I don`t know the specifics. But it`s been really bad, and tonight is getting worse again. So we`re holding out hope here that...

(CROSSTALK)

GRACE: You`re seeing the weather right now. We`re playing it for you and the viewers, Frank. Very quickly, Rob Marciano, since the phone call, Frank James is telling us about how much snow has fallen. Have the conditions changed?

ROB MARCIANO, CNN METEOROLOGIST: Well, it`s not so much how much snow is falling; it`s the blowing snow. And also the other deal is, with each passing system, the snow level will rise to 7,000, 8,000 feet and then drop down to 3,000 feet. And that makes for instability in the snow, and that`s why we have the avalanche danger.

Now in the satellite picture, you can see our next storm is right on the heels of that coastline, and that`s going to bring in more rain and snow and winds tonight at that elevation, likely 70, 80 miles an hour through tomorrow morning.

GRACE: So Rob Marciano telling us another storm coming in. Very quickly to Marlene in Florida. Hi, Marlene.

CALLER: Hi. I totally disagree with you on the taxpayers` footing the bill or these volunteers going up there risking their life when these guys know it`s danger. They put their self in that position, and they should get their self out! Thank you.

GRACE: Well, thank you for your opinion. But I know, Frank James, that if I had gone hiking, I would hope and believe that other hikers, that the local or state government, someone would pitch in to try to find me.

Frank, you just are hearing all the weather conditions, the pitfalls, the threats of a mountain like Mt. Hood. It requires technical hiking experience. What drove your brother to take on an adversity like this?

JAMES: Well, I don`t think he anticipated the adversity. Kelley is a very experienced mountain climber. He`s climbed all over the world, the Andes, the Eiger, and he`s climbed Mt. Rainier, estimates are 15 or 20 times. So he`s a very experienced mountain climber.

And ordinarily, Mt. Hood would be considered not a particularly difficult climb, so I think what`s happened here, frankly, is the weather is what has been the great surprise for him and for us.

GRACE: Right. With us is Frank James. Go ahead.

JAMES: Well, I was just going to say, one of the things that we`re really pleased about is the way the people have responded here. The people have volunteered from throughout Oregon, and they`re sending in more and more. People are volunteering to come and to help. And we are so very grateful for such a great sense of community.

GRACE: Frank, these are our fellow Americans. We want to bring them home safely. With us, Kelley James` brother, Frank.

(COMMERCIAL BREAK)

GRACE: Before we take you to Borat`s legal battle, tonight`s case alert. Fourteen holiday trees back in the Seattle airport. The trees taken down after a rabbi asked for the airport to also display a menorah. Airport managers said there`s not enough time to put up symbols of other religions and cultures, so they decided instead to just take down the tree instead of simply adding a menorah, not at all the rabbi`s intention.

In the meantime, Delta and Frontier employees spent up their own money to put up miniature trees for the Christmas season, so I`ll be flying Delta and Frontier. And P.S.: Seattle airport, what`s the problem? Why can`t we have a menorah, too?

Merry Christmas, Seattle, and happy Hanukkah.

Well, Borat in hot water. And if you don`t know who Borat is by now, get out of your cave, come out from under your rock. It was the number-one top grossing movie to hit Hollywood by storm. It has also hit the courthouse by storm. Take a listen to this.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: In the movie, you are basically on a journey to find Miss Pamela Anderson from Baywatch. She`s like the perfect American woman.

SACHA BARON COHEN, "BORAT": Yes, very nice!

UNIDENTIFIED FEMALE: Since you`ve been in the states, what other American women do you like?

COHEN: I like very much meet this woman, Nancy Grace! Wah-wah-wee- wah!

UNIDENTIFIED FEMALE: You don`t say?

COHEN: Yes.

UNIDENTIFIED FEMALE: OK. Yes, go on.

COHEN: She is unlike any Kazakh woman I have seen. She have more hair on her head than on her back.

(END VIDEO CLIP)

GRACE: Well, after that, naturally I`ve got a huge crush on Borat, but let`s talk about the law. Right now, we`ve got four pending lawsuits in or about the Borat movie, and I`m not even including the divorce between Pamela and Kid Rock.

Out to Matthew Belloni, Hollywood reporter, why all the lawsuits? Why is everybody so mad? Other than the nude male wrestling scene, I loved the movie.

MATTHEW BELLONI, "HOLLYWOOD REPORTER": Well, these people have come forward and said that they were fraudulently induced into signing releases to appear in the film.

GRACE: Wait, you mean the drunk frat boys?

BELLONI: Sure, they have said that they were told one thing, like the movie would not be shown in America, and then they signed a release that granted rights to include anywhere in the universe for distribution of the movie.

GRACE: Hmm. Take a listen to this.

(BEGIN VIDEO CLIP)

COHEN: My name is Borat. I like you. This my house. Entry, please.

He is my neighbor, Nushuv Kanto Diaby (ph). He is pain in my (bleep). I get a window from a glass; he must get a window from a glass. I get a step; he must get a step. I get a clock radio; he cannot afford. Great success!

This is Natalia. She is my sister. She`s number-four prostitute in all of Kazakhstan. Nice!

This is my mother. She oldest woman in whole of Kuzek (ph). She is 43. I love her.

(END VIDEO CLIP)

GRACE: Well, needless to say, if you got spoofed by Borat, you`re plenty mad, but a lawsuit, for Pete`s sake? Let`s go to the lawyers, Dan Horowitz, Jason Oshins.

I don`t know if you`ve seen the movie, but I was there on opening day with all the other 12-year-olds at the matinee. I tried to arrest them all for truancy, but the movie was starting. But long story short, Jason Oshins, there`s these two frat boys, totally drunk, making complete jerks of themselves, but they signed waives.

Now they`re blaming Borat and their own drunkenness for them being in the movie, and they want money. Today, a judge said, "No way." They`re probably going to appeal. Likelihood?

OSHINS: Nancy, listen, obviously anything that is successful is going to bring out people out of the woodwork to try and go after some of that successful money. But the key, obviously in all of this is you talk about the drunken frat boys is, was there fraud in the inducement? Was there something else going on in order to induce them to sign these waives, to get, you know, their images for the purposes of the movie?

GRACE: Long story short, again, Daniel Horowitz, booze is not going to be a legal defense unless they were catatonic, like in a drunken coma. And they`re clearly on the screen making jerks of themselves.

HOROWITZ: Nancy, alcohol in a frat house, what an unusual thing to have happen. You know, this lawsuit really makes me angry. We joke about it, but it`s an attack on somebody`s creativity, on art, on movies.

GRACE: Well, I appreciate the sermon, but just tell me: Are they going to be successful in court?

HOROWITZ: They`re going to get their rear ends kicked, Nancy.

GRACE: So I`m going to take that as a no.

HOROWITZ: And I think they`ll get sued.

GRACE: Take a listen to this.

HOROWITZ: It`s a no.

(BEGIN VIDEO CLIP)

COHEN: Why you trying to sell me old things? You think I am stupid just because I am foreign?

UNIDENTIFIED MALE: No, sir, this is an antique; this is an antique shop.

COHEN: And what in here? What is this?

UNIDENTIFIED MALE: These are a number of collectibles. I mean, this is a lamp that, you know, you would use in your home. This is just a little decorative duck.

COHEN: And do you think, you know, when they -- I`m sorry.

UNIDENTIFIED MALE: Hey, hey, hey. We need help, baby.

COHEN: No, it`s OK. I -- I sorry. Don`t worry. My friend, he can make glue.

UNIDENTIFIED MALE: I don`t think you`re going to be able to glue that stuff back. I think you`re going to have to pay for it.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

GRACE: Box office hit "Borat" made millions, but there are a lot of sour grapes. If you haven`t seen the movie yet, it was hilarious. You`ve got to kind of be in the mood for it.

To psychologist Caryn Stark, everybody in the movie didn`t sue. Did you see Bob Barr? He was spoofed in the movie. They played a joke on him. He`s not suing. Why can`t these people just take a joke?

CARYN STARK, PSYCHOTHERAPIST: It`s hard to understand, Nancy, but obviously they want to make something out of this movie. They want to make money themselves. And it`s a little too late for them to have regrets about it.

It is a joke; it was a lot of fun. And if you don`t like this kind of movie, you shouldn`t be in it, and you shouldn`t go see it.

GRACE: Have you seen it? Have you seen it?

STARK: I haven`t seen it yet. Am I going to go see it?

GRACE: I`ll see it again with you, Caryn Stark.

STARK: OK, Nancy.

GRACE: To Ben Lyons with E! News, you`ve interviewed Borat. A, did he stay in character? And what did you learn about him?

BEN LYONS, E! NEWS: Yes, a real tough day at the office that was. Yes, he was in character the entire time, and he was also in character hanging out in the hallway at the hotel, and at the buffet line. The entire time he was in character.

GRACE: Did he mention my back hair?

LYONS: He didn`t mention your back hair, unfortunately. He smelled my hair. He said it reminded him of his sister. And he`s unbelievable, reminds me a lot of Andy Kaufman, who people might remember...

GRACE: That might be a bad thing.

LYONS: ... who was always in character. Is he real?

GRACE: And so, here in New York, he apparently went up to some guy and said he liked his outfit and was trying to, like, kiss his clothing. The guy punched him in the nose. So people just don`t seem to get his humor. Well, I don`t know. It was number-one at the box office, Ben.

LYONS: Yes, it`s number-one at the box office here in the states. It did over $25 million...

(CROSSTALK)

GRACE: Oh, take down that thong picture, Liz.

LYONS: ... on like 800 screens, and it`s huge around the world. It`s made close to $220 million around the world, before DVD sales, before they sell the cable rights. So it`s a huge moneymaker for FOX. I don`t think he`ll be able to do a sequel now, because everybody knows he`s fake.

GRACE: Well, whoa, whoa, whoa, wait, now he`s going to do a sequel as Bruno, the stylist. And, Elizabeth, next time we cover this, please don`t put up the body thong shot.

Thank you to Ben Lyons and to Matthew Belloni, Ben from E!, Matthew from the "Hollywood Reporter."

Let`s stop for a moment to remember Navy seaman Charles Sare, 23, California, killed, Iraq. First tour of duty, he went to become a paramedic. He loved Adam Sandler and off-roading. The most beautiful smile, he leaves behind parents and a younger brother, Matt. Charles Sare, American hero.

Thank you for inviting us into your homes. NANCY GRACE signing off until tomorrow night. Good night, friend.

END