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CNN LARRY KING LIVE

More On The Legal Battles Over Anna Nicole Smith; NASCAR Cheating

Aired February 16, 2007 - 21:00   ET

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


LARRY KING, CNN ANCHOR: Tonight, a shocker in Anna Nicole Smith's will -- drawn up in 2001 and made public today, one week after her death. Everything goes to her dead son Daniel. But she specifically cut out future spouses and children.
What's this mean for baby Dannielynn?

We'll ask our exclusive guest, the lawyer just retained by Anna Nicole's estate to handle that will in California.

Plus, NASCAR's billion dollar empire rocked by a cheating scandal days before its biggest race.

(BEGIN VIDEO CLIP)

MICHAEL WALTRIP: I'm ready to bear all responsibility.

(END VIDEO CLIP)

KING: Six teams are in trouble on the eve of the Daytona 500, including star driver Michael Waltrip. Now his older brother

It's all next on LARRY KING LIVE.

Good evening.

In a moment, we'll meet Bruce Ross, who was recently retained to handle the probate in California, familiar with the will, saw it just a few days ago.

But we'll start with Beth Karas in a moment.

One small paragraph in Anna Nicole's will is causing one major discussion today.

Here's how it reads: "I have intentionally omitted to provide for my spouse and other heirs, including future spouses and children and other descendents now living, and those hereafter born or adopted."

How surprising is that, Beth Karas?

BETH KARAS, COURT TV CORRESPONDENT: Well, it was surprising to all of us at the courthouse as we obtained the will in the middle of afternoon and we were scrambling to try to figure out what it means. By the end of the day, it seemed to be the conclusion that she dies without any heirs provided for in her will. It'll -- it's tantamount to being intestate, and under the law of intestacy, everything will, indeed, go to Dannielynn.

I don't know if a court is going to agree with that, but that seemed to be the understanding at the courthouse.

KING: Now, Beth, the judge has asked -- Tuesday is the next hearing date and he says Howard K. Stern should be there.

For what?

KARAS: Well, the judge is going to take testimony to try to understand Anna Nicole's intent of where she wanted to be buried, because he is going to decide whether she goes to Texas or the Bahamas.

So, we assume that Howard K. Stern is going to give evidence relevant to that, although her mother's attorney is dying to ask him questions and, of course, we were posing the possibility that he's going to be asked some questions that may cause him to take the fifth amendment, since possibly these -- some questions posed to him could be incriminating if he were to answer here's honestly.

I don't know if this lawyer is going to go on a fishing expedition about his being fit to be a guardian of the child, what his own potential possible drug use is, something like that.

KING: Right.

Thanks, Beth.

Beth Karas, our Court TV correspondent on the scene for us.

We now welcome Bruce Ross, retained to handle the probate in California.

Retained by?

BRUCE ROSS, PROBATE ATTORNEY RETURNED BY ANNA NICOLE'S ESTATE: Retained by Mr. Stern and Mr. Rale, the...

KING: Your specialty is probate?

ROSS: My specialty is probate, yes, sir.

KING: Is this a surprising will?

ROSS: It's -- it's not surprising, actually. I mean ultimately, I think, it's a -- it's an easily understood will. Despite the unfortunate language in the paragraph that you spoke about just a minute ago, I think there is little doubt that a court, if and when asked to interpret the document, is going to say that there is a trust established here to be trusted by Mr. Stern for the sole benefit of Dannielynn.

And as your CNN correspondent colleague said, even if the will were not valid -- and I believe it is, and I believe it does establish a trust for Dannielynn's exclusive benefit -- Dannielynn is, in fact, the sole heir at law, even if there is no will.

KING: What does the trustee do?

ROSS: A trustee is charged with managing the assets in the trust for the benefit, the exclusive benefit, of Dannielynn, the beneficiary. And in this case, because of her youth -- I mean she's five months old, I believe -- this will be for her health, support, education, and there will be distributions of principal that is the corpus of the trust, when she attains, I believe, the ages are 21, 25 and 35.

KING: Can the trustee buy stock?

ROSS: Typically a trustee would buy stock, yes. Again, the duty of the trustee is to safely administer whatever assets are put into the trust.

KING: Not for himself?

ROSS: Absolutely not for himself.

KING: Does he get a fee?

ROSS: Trustees are entitled to reasonable commissions, that's true.

KING: Can you attack the will, other people?

ROSS: In my opinion, no. In my opinion, no. There is no evidence that she was -- she lacked competence or testamentary capacity, as we call it, or no evidence that she was unduly influenced.

As I've said, as I read the will and as I think the court will ultimately read the will, it does establish a trust for her one and only child.

KING: She dies in Florida...

ROSS: Correct.

KING: ... lives in the Bahamas.

ROSS: Correct.

KING: Why California?

ROSS: Well, the Bahamas is a key jurisdiction, as we say here, as well. She is, we believe, domiciled in the Bahamas. So there will certainly be a proceeding in the Bahamas, as well.

However, we have, in California and other state, what we call ancillary probate. That means if there are assets here to be administered of an estate of someone who died domiciled elsewhere, then we would establish a probate here. And, of course, there's a very significant asset in California, which is the ongoing claim against Mr. Marshall's estate.

KING: Since no one knows who the father is at this point, and no one -- you can't even say you're the father because you don't know...

ROSS: Well, I can say I'm not the father.

KING: Yes, obviously I'm not the father. But no one who says they're the father knows they're the father...

ROSS: True.

KING: ... because she slept with a few people. Therefore, once the father is established, what does that do to the will?

ROSS: It has no effect on the will whatsoever.

KING: The father has no part in it at all?

ROSS: No. Well, I will say that once the fatherhood is established, the father could presumably be appointed as the guardian of the person and estate of the child. But the assets remain in the trust administered by the trustee.

KING: So Stern will never lose that unless he gives it up?

ROSS: That would be true. Yes.

KING: What makes a good trustee?

ROSS: A good trustee, I think first of all, is a person of integrity. And it's clear to me from this will and history, that Miss. Smith put a lot of trust and confidence in Mr. Stern, who is a licensed lawyer.

Someone who cares about the beneficiary and someone who, if appropriate, obtains investment -- competent investment advisers to assist in managing the trust.

KING: Would the mother have any standing at all?

ROSS: As what?

KING: In a will proceeding, in a probate proceeding?

ROSS: In this proceeding, no. No. There is -- there is one heir in this case and there is one beneficiary in this case, and that's Dannielynn.

KING: Was it good to have the will released?

ROSS: Was it good to have the will released?

Well, I think it was going to be public eventually anyway. I'/m not familiar, frankly, with the reasons it happened to get released today in Florida.

KING: You had nothing to do with releasing it?

ROSS: No. No.

KING: Now, what's the next thing you do?

ROSS: Well, the next thing I do, after consultation, is we'll proceed to take what steps we believe are necessary in California and the Bahamas to effectuate Anna Nicole's intent.

KING: Do you file a will somewhere? I mean what --

ROSS: Yes. Well, to probate a will, essentially, you take it to the courthouse and -- with a petition. And you say this is the last will of the deceased testator and you ask the court, sitting in exercise of its probate jurisdiction, to admit the will to probate and to appoint Mr. Stern as executor.

KING: And are there probate judges?

ROSS: There are.

KING: They do nothing but probate work?

ROSS: Yes. We have, in the downtown Los Angeles district, we have a master calendar probate judge and two additional judges who handle nothing but probate matters.

KING: You've cleared up a lot, Bruce.

Thanks for coming by.

ROSS: Thank you.

KING: Bruce Ross. He was retained to handle the probate in California.

We'll be right back with a great panel.

Don't go away.

(COMMERCIAL BREAK)

KING: Welcome back.

Joining us now, our panel.

From -- in the New York bureau, Lisa Bloom, Court TV anchor. Always good to have her with us.

LISA BLOOM, COURT TV ANCHOR: Hi, Larry.

KING: In Plantation, Florida -- hi, Lisa -- Stacey Honowitz, the assistant Florida state attorney. She specializes in child abuse and sex crime cases. And here in Los Angeles, Harvey Levin. Harvey is the attorney and journalist, also managing editor of TMZ.com.

And our old favorite, the famed defense attorney, Mark Geragos.

Harvey said something to me just before we went on about our earlier guest, that he was wrong about something.

What?

HARVEY LEVIN, ATTORNEY, TMZ.COM MANAGING EDITOR: Well, I think he's kind of over stating something. That trust was established, where Howard Stern is the trustee, for Daniel. It only said Daniel.

Now, Daniel died and they didn't bank on that.

So when Dannielynn inherits this money, she is going to inherit it not because of the will, but because of the laws of the state that say the child is next in line.

KING: So who will -- who will be the trustee?

LEVIN: Well, I think that there's a really good argument that the trustee is going to be the father of that child. I don't know if you agree, but I think...

MARK GERAGOS, DEFENSE ATTORNEY: Well, there's obviously -- I think the whole fight over the -- the paternity is because people figure either that's going to be an entree, as Harvey says, to becoming a trustee, or you're going to be able to raise the child and then get the distribution out of the trust.

So either way, whoever is the father, that's why there's a fight.

KING: What do you think, Lisa Bloom?

BLOOM: Well, I also think it was completely inappropriate for Howard K. Stern to have a sexual relationship with his client. He shouldn't have been lawyer and lover. He should have chosen one.

Having done both, I think there's a good argument on behalf of the mother or anybody else that's going to contest this will -- and let's face it, there is going to be a will contest -- that he should be out of the picture, either as the executor or as the lawyer.

I mean it's just not appropriate.

KING: Stacey?

STACEY HONOWITZ, ASSISTANT FLORIDA STATE ATTORNEY: I think it's very interesting that after the baby was born, that there wasn't a codicil to the -- to the will. They knew at the time it was drawn up that this child was omitted. So now they have this brand new baby and they know that there's no provision in the will.

So I think it's interesting that at that point they didn't go back in and Howard Stern, who's claiming to be the father, didn't amend it.

KING: Since, Harvey, obviously no one can say they are the -- Harvey can't, Mr. -- he can't say he's the father. Larry can't say he's the father.

LEVIN: I'm not the father.

GERAGOS: You're the only guy in Los Angeles who's not claiming to be the father.

KING: All right.

Howard can't say he's the -- you can't definitively say you're the father.

LEVIN: Right.

KING: What if there's a DNA and we -- it shows none of them are the father?

LEVIN: Well...

KING: Then what?

LEVIN: I never thought of that. Maybe you're right.

KING: Yes, why not?

LEVIN: You're...

KING: She slept with a few people. It's...

LEVIN: Well, here's the deal. The judge ultimately -- I think the judge ultimately is going to have to decide who is going to be the trustee, and it's probably going to be the person who's raising that child. And I don't know who that's going to end up being.

But it doesn't -- it is not, by any means, a lock for Howard K. Stern.

GERAGOS: Right. Or, if not the father, the court could appoint some other third party...

LEVIN: Right.

GERAGOS: ... that they decide off a list or something else, or somebody that the judge has confidence in is going to be able to administer this.

KING: Now, this is for all of you. And we'll start with Lisa.

What makes this whole matter so extraordinarily interesting?

BLOOM: Well, I think Anna Nicole is somebody we have seen in the media. She is a gorgeous model. She's eye-popping. You put a picture on the screen, everyone's going to look. And what a tragic life she had in so many ways. Her husband died. Her son died. She was estranged from her family.

I see her as a hardworking single mom, believe it or not, who earned every dollar that she ever made. She never got any money from that ex-husband, by the way, from his estate. She just kept plugging along, as a Lane Bryant model, as a Guess model, as a reality show star, supporting her son.

Her son tragically died. And her legal affairs have been about as bad as a person's legal affairs can be. If you try to make them bad, I don't think you could have made them this bad. And I think that's, in large part, because her lawyer was sleeping with her and not looking out for her best interests.

KING: Although others say he didn't sleep with her. Larry says he didn't.

Anyway, Stacey...

BLOOM: Well, then how is he the father?

KING: Well, the -- he don't know. No one knows he's the father.

BLOOM: But he claims to be.

KING: The kids...

BLOOM: He claims to be.

KING: Well, how can you -- how can he know he's the father?

BLOOM: No, I don't know he is.

KING: He can't know he's the father.

BLOOM: But I think if he claims to be the father, he can't say he never slept with her.

Can we agree on that?

KING: Oh, that's true. Right.

Stacey, would you agree...

HONOWITZ: He's not saying it...

KING: ... no one could...

HONOWITZ: ... other people are saying.

KING: Stacey, no one can say they know they're the father? Right, Stacey? You can't say you know it?

HONOWITZ: No, nobody can say they definitely know that they're a father.

KING: Right. HONOWITZ: And in this case, there's so many other people that say that he never had a sexual relationship with her...

KING: Right.

HONOWITZ: ... but he wanted to have one with her, but he never did. He followed her around. Maybe he was in love with her from afar, but that doesn't mean that she returned the affections.

And I think that's why everybody is so curious. Every time you saw her on TV, whether it was with a boyfriend or somebody else, Howard K. Stern was always trailing behind. So people now are fascinated to know what the private life was really like. And that's why they're crazy about it.

KING: How long is this going to go on, Harvey?

LEVIN: I think it's going to go on a long time because, you know, number one, where is this will going to be probated? The Bahamas. It's going to be probated in California. It'll be a dog fight over that.

And then I think there is just going to be a huge contest. It was a bad will. It was a sloppy will and this will be in court for a long time because of it.

KING: Mark...

GERAGOS: I...

KING: ... do you see anything here that's a criminal matter?

GERAGOS: No. I don't think there's a criminal matter.

KING: No criminal matter?

GERAGOS: Well, actually, there is one criminal matter. Somebody could be looking into the doctor who was prescribing the drugs. That is something that's happened here and there's a precedent for it in California.

LEVIN: And one other thing. And there is a criminal possibility with Howard K. Stern and Daniel's death because a witness is going to testify at the coroner's inquest that Stern gave that kid methadone.

KING: But an attorney representing a doctor being investigated about possibly prescribing methadone to Anna Nicole said Friday that his treatment of the former "Playboy" Playmate was sound and appropriate.

GERAGOS: Well, and that's what his lawyer should say.

KING: And (UNINTELLIGIBLE) Mark...

(LAUGHTER)

LEVIN: I mean, what's he going to say?

My client is guilty as sin and I...

KING: Now, wait a minute...

LEVIN: I'm hoping to throw myself on the mercy of the court.

KING: Help an idiot out.

Are people prescribed methadone?

GERAGOS: Yes. Absolutely.

KING: OK. So why couldn't she have been prescribed it?

GERAGOS: The only question is, is whether or not it was done in a reckless manner, whether or not you gave somebody -- you know, there's been some indication that there's aliases. There's some indication this is (UNINTELLIGIBLE)...

KING: Isn't methadone a heroin substitute?

GERAGOS: Yes.

KING: We'll be right back with more.

We'll include your phone calls, as well.

Don't go away.

(COMMERCIAL BREAK)

KING: Lisa Bloom, where are we on the disposition of the body?

BLOOM: OK.

Tuesday morning the hearing resumes. We have already had two full days.

We're doing it gavel to gavel on Court TV, by the way.

So far in two days, the judge has said more DNA would be taken from Anna Nicole's body in case anybody needs it in the paternity case. That's been done.

The judge ordered today that the body would be embalmed.

But guess what?

The body was not embalmed because the guys that came down to embalm her refused to sign a confidentiality agreement. So that is still a question up in the air as to when that's going to happen.

But Tuesday, the hearing will presume -- will resume and the judge will try to make a decision as to who gets custody of Anna Nicole's body. Will it be the mother, who wants to have her buried in Texas with the family, where she was born and raised? Or will it be Howard K. Stern, who wants to bury here in the Bahamas, in the plot that she bought next to the plot that she bought for Daniel?

KING: Stacey, if we were pitching this to MGM or Sony as a movie, they'd have us out of the office pretty fast, right?

This gets curiouser and curiouser.

Why is the disposition of the body pertinent?

HONOWITZ: Well, basically, you know, she didn't...

KING: Because she's dead already.

HONOWITZ: ... leave in her will and she didn't tell anybody where she wanted to be buried. And that's what happens in these cases, you've got to figure out who's entitled to it.

That's what happened yesterday in court. It was an entanglement all day. There were DNA issues, there were preservation of the body issues, who's getting the body. And that's why on Tuesday, the judge has to decide whether to follow the burial statute in Florida, which would make the mother the next of kin and she would get it, versus the testator, Anna Nicole's intent.

And that's why Howard K. Stern has to come into court and testify, so the judge can hear what her intent was by buying the plot, by saying that she never liked the mother, that she hasn't talked to the mother in 10 years.

And if you run any "Entertainment Tonight" or "Access Hollywood," any tapes, where she was saying I despise my mother.

So all of these things are going to be factors for Stern's lawyers to use to try to get the judge to say her intent was to be in the Bahamas with her son, not with her mother.

KING: Harvey, why can't we get a judge to order all these people to give their DNA, match it up and see who's the father?

LEVIN: Well, I think that's what Larry Birkhead is trying to do.

KING: And why can't he get that done?

LEVIN: Because...

KING: Wouldn't everyone want that done?

LEVIN: ... I mean the complicating factor is you've got a California judge issuing a ruling that requires somebody living in the Bahamas to do something. And it gets really entangled, really complicated. And unless the other person is willing to do it, it's a complicated legal matter. KING: All right, wouldn't it be helpful, Mark, if all the men who say they want to be the father voluntarily got together and said let's all submit our DNA and we all want to know who it is for the benefit of the little girl, who's the only one that counts?

GERAGOS: Where are they going to do it, in a coliseum? I mean at a...

KING: Well, how hard is it to do?

GERAGOS: ... at a certain point, I mean there's a lot of guys who are coming out and making that claim. I mean the -- and a lot of this is, is really more complicated than it has to be. I mean it -- it does not seem to me, at least, to be rocket science or very difficult for a judge to figure out, look, she had a will, she left all of it to her son. She bought a plot for her son. She bought a plot for herself next to where she buried her son.

Hello? Guess where she wanted to be buried?

And she did not want to be buried anywhere near her mother, obviously. And that's why she buried her son there.

So I mean that...

KING: So this should be open and shut?

GERAGOS: That should be open and shut. It's far -- and I agree with you as far as the DNA. You've got three guys. Get the DNA done. You can turn it around in three days. It's the simplest thing in the world...

KING: Wouldn't they want it done?

I don't understand.

GERAGOS: Well, I don't know. I mean...

BLOOM: Well, there's one of them, Larry...

(CROSSTALK)

LEVIN: Somebody's got to...

KING: What?

BLOOM: Larry, there's one of them that clearly does not want it done, and that's Howard Stern. That's why they went to Bahamas in the first place...

KING: Why not?

BLOOM: ... to avoid the jurisdiction of the U.S. courts. Because I think it's pretty clear he's not the biological father.

What happened was Anna Nicole and Larry Birkhead had a relationship. She got pregnant. She told Larry that he was the father. He went to prenatal visits. He even went as a single dad to visits after they broke up.

Then she decides she wants Howard Stern to be the dad. They move to the Bahamas to avoid the jurisdiction of U.S. courts, have the baby there and he's been hiding from DNA tests that have been court ordered for the last five months.

Meanwhile, Larry, he's bonding with this baby for five months. He's the only parent she knows now. And at some point I think it's clear there's going to be a court order saying that baby has got to be given to the biological dad. She's going to have a new, strange parent in her life, somebody she's never known. And all of that is because he's been hiding from the jurisdiction of U.S. courts.

KING: And if she's correct, Harvey, in the interests of the child, who we again say is the only person that really matters here, why doesn't he give it up? Why doesn't he say OK, take the DNA and let's find out who the -- if you really love -- if you love Anna and you love the baby, why not?

LEVIN: Because...

KING: I mean logically why not?

LEVIN: Logically?

KING: Morally why not?

LEVIN: I mean I hate to say it, but he might love something else, too -- money. And there's -- there is money on the line here. This baby could inherit, if everything goes right for her, $424 million. And you had Howard K. Stern's lawyer on before us. And that lawyer was saying Howard is the trustee of this thing. And I'm telling you that's -- that's the brass ring. And that could be the brass ring for Howard K. Stern.

GERAGOS: Well, I'll tell you, I can put a -- I can put a happy face on this. I mean he could feel, legitimately, this is a woman that he dedicated his life and his career to -- I mean it, by all appearances, was his only client. And she obviously, whether she was in her right mind or not, wanted him to be the father by -- by virtue of putting his name on the birth certificate, held him out there as the father -- feels like he's doing her bidding or -- or doing what she wanted him to do. And...

LEVIN: But you know what's complicating...

GERAGOS: And he could have an attachment. I mean if you've ever had a kid, I mean you can -- you can bond with that kid immediately and have just as much an attachment, in fact, more so, I think, as a father to a daughter in the first couple of months of life than the daughter is ever going to have to you. The daughter, basically, at that point, can barely sit up.

LEVIN: The problem with that theory is that while Howard K. Stern was with Anna Nicole, they tried to make this other guy, G. Ben Thompson, the dad. And she was trying to pin it on him and he said hey, I had a vasectomy two years ago. It can't be me.

So Howard was willing to let this other guy assume the role of dad.

GERAGOS: So it wouldn't be the first guy who's denied...

KING: Stacey...

GERAGOS: ... fatherhood (UNINTELLIGIBLE).

KING: Stacey, shouldn't the daughter be the only one of consideration here? And shouldn't everybody say let's find out who the father is?

HONOWITZ: Well, absolutely. And yesterday in court -- I was in the courtroom -- the judge kept saying, kept reiterating, listen, we have to look and see what's in the best interests of this child.

But interestingly enough, during the paternity, there was a slight break in the testimony yesterday and they started getting into issues about the DNA. His lawyers kept saying there's no reason to take another swab. In other words, there was enough.

And the -- Larry Birkhead's lawyer was asking for another swab, because they thought maybe this was tainted, there was going to be a bait and switch.

So for some reason, they're not looking at the best interests of the child, although the judge was really trying to tell the lawyers yesterday that's what we need to look at, let's get this done, let's get it taken care of.

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

And then we'll discuss the incredible goings on at NASCAR on the eve of the Daytona.

Don't go away.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

ANNA NICOLE SMITH: She has been my idol for many, many years. I just love her. She's wonderful. I love all of her movies. I have everything you can imagine of hers.

(END VIDEO CLIP)

KING: The only difference might be, as I was just talking with Harvey, if we had today -- if we had back in 1962 with all of these tabloids and all of these shows and all of these Web sites, and you had a Marilyn Monroe death, how big? Through the roof.

LEVIN: I mean, the president, the attorney general...

KING: Anna Nicole Smith would be a blip.

LEVIN. I mean...

KING: Anna Nicole Smith would be a, what? Let's take some calls. Nashville, Tennessee. Hello.

CALLER: Hi. It's my understanding that the judge who's presiding in Florida over the disposition of Ms. Smith's body ordered Howard K. Stern to be present in court this coming Tuesday at 9:30.

KING: Right.

CALLER: My question is this. Since Mr. Stern will be back in the United States, is there any way that his DNA could be expedited since he's no longer in the Bahamas?

BLOOM: That's a great question.

KING: Lisa?

BLOOM: Let me take that one. That's a great question. And that's why Howard Stern's lawyers were fighting it. He is the petitioner in that case. He was ordered to show up on Tuesday. What that means is he has got to leave the Bahamas, come to the United States.

The Bahamas does not necessarily enforce a California order, but, guess what, Florida will. And so what we might see on Tuesday is a subpoena being handed to Howard Stern when he arrives in Florida for that hearing, a subpoena to give up some DNA. And we might get a breakthrough on the issue of the paternity of Dannielynn.

KING: Buy that, Stacey?

HOROWITZ: Oh, absolutely. I'm almost positive that is what is going to happen. I mean, you know, Birkhead's lawyers were in court this morning, they were upset about the fact -- I'm sorry, Howard's lawyers were upset about the fact that Birkhead's lawyer went to a Florida judge to get a California order enforced without notice. And I think those lawyers are going to be right on top of it. They are going to subpoena him, compel him to give his DNA. Florida will accept the California order.

KING: St. Louis, hello.

CALLER: Hello. I have a question regarding her burial.

KING: Yes.

CALLER: If her residency was granted based on property ownership, and that is in question, is it still legal to bury her and her son in the Bahamas?

KING: Harvey? LEVIN: Well, I don't think you have -- well, you know, that's a great question. I don't know that you have to be a resident to be buried there. I don't know that that's a -- you have to be a resident to live there. But I don't know that it extends to burial. But it's a good question.

KING: Mark?

GERAGOS: I have no idea.

KING: Lisa?

BLOOM: I think it's OK for her to be buried there.

KING: You do. Stacey?

HOROWITZ: I don't really know if it makes a difference. I mean, people buy plots in other states and they are not residing there yet they are buried there. So I don't know how it works between the countries. But I don't think it will be a problem.

KING: Harvey, is Tuesday going to be exciting?

LEVIN: Oh, yes, I mean, you are going to have all of these players in the same room...

GERAGOS: That's if he shows up.

LEVIN: If he shows up. But...

GERAGOS: I'm not so sure he will. I mean, if he -- at a certain point, if what everybody is speculating is correct, his lawyers might advise him not to show up.

LEVIN: Well, it's not like he's under criminal investigation.

GERAGOS: Right. Exactly -- well, it's not for that. It's for other reasons.

(CROSSTALK)

HOROWITZ: He does not want to give up the baby.

GERAGOS: If he doesn't want to give up the baby -- well, it doesn't matter if he looks bad. You can look bad with $424 million and that looks good.

(LAUGHTER)

GERAGOS: So I don't know if he necessarily wants to show up there to fight over whether or not she is going to be buried in Texas or the Bahamas, I mean, and subject himself to the jurisdiction here. He can thumb his nose down in the Bahamas for as long as he wants.

LEVIN: But then he's kind of saying, ah, you know, let her go with her mother. And that goes against everything that he says he stands for.

KING: Lisa, will he appear?

BLOOM: I think he will appear. You know, his lawyers really fought and keep in mind the baby is legally required to stay in the Bahamas. There's an injunction requiring that baby to stay there so the Bahamas can work out the paternity issue.

His argument is, well, I have to stay with the baby in the Bahamas. The problem is, a few weeks ago he left the Bahamas along with Anna Nicole to go yacht shopping. And they left the baby behind. So I don't think anybody really buys that argument. I think it is pretty clear he is trying to stay outside of the U.S. to avoid the jurisdiction of U.S. courts.

GERAGOS: Just a big crib.

KING: Big crib.

GERAGOS: It's a big crib.

(CROSSTALK)

KING: Stacey, his public image is very poor, would you agree?

HOROWITZ: I don't know what his image is. I mean, certainly he has made a name for himself during all of this. I don't know if...

KING: But what was the name?

HOROWITZ: Well -- you know, well, the names that you hear in certain places is gold digger, another one is that, you know -- well, it really is gold digger. Is he in it for the money? Does he really love the child? Is he really the father?

But I just wanted to go back to one thing, I think he is going to be weighing -- you know, his lawyers tried desperately not to make him appear on Tuesday. He said he couldn't -- had to stay with the baby. The judge said, I don't care, if is that important, he has got to be here. I think this weekend is going to be spent really weighing where she needs to be buried versus giving up this child. And I think that is what is going to be...

GERAGOS: I agree. I agree.

HOROWITZ: That's what it is going to be. Do I give up having her buried here? Is it that big a deal to have her buried in the Bahamas or is my life town the tubes because I lose this baby and subsequently the money that goes with it?

GERAGOS: And I think if he decides -- if he really believes he's not the father, I don't think he shows up.

KING: And Harvey got a million-and-a-half hits today in 15 minutes on a Britney Spears story. What? I'm -- bated breath. LEVIN: She -- there was an intervention with her family. And they had her go to Eric Clapton's facility overseas -- the rehab facility. She went there and within 24 hours -- less than 24 hours, she was out of there. She was out of there.

"Extra" broke the story about her being in the facility and then TMZ found out. Literally, she walked in, not for me, and she left.

KING: How do you find that out?

LEVIN: I can't tell you.

KING: Do you have gremlins outside?

(LAUGHTER)

LEVIN: No.

KING: What do you do? Do you pay off someone at the facility?

LEVIN: No. Absolutely not. Absolutely...

KING: Hey, Harvey, she checked out?

LEVIN: Absolutely not.

KING: There was no one outside spying, and there is no one inside telling you, how the hell do you know she's out?

LEVIN: We have a good track record. I mean, we do everything legally. We don't do that.

GERAGOS: I hate it when we get a call from Harvey.

(LAUGHTER)

GERAGOS: Because you usually know, batten down the hatches.

KING: And he's usually right.

Lisa Bloom, Stacey Horowitz, Harvey Levin, and Mark Geragos.

Coming up, NASCAR's version of a doping scandal, the use of illegal fuel additives at the Daytona Speedway. When we come back, two NASCAR drivers give us their take on the whole scandal. It's next.

(COMMERCIAL BREAK)

KING: The second-biggest sporting event in America next to the Super Bowl is the Daytona 500. That comes up on Sunday. And lots of controversy around it this year. NASCAR driver Michael Waltrip had has his car confiscated after inspectors found an unspecified substance in his engine.

It turned out to be a Vaseline-like fuel additive which is prohibited. Waltrip's crew chief was suspended Wednesday, fined $100,000. The team was docked 100 points off of the total for the end of the year, And the story has been called NASCAR's biggest cheating scandal. In Daytona is Darrell Waltrip, former NASCAR driver, three- time Winston champion. His brother Michael's team was caught up in that scandal. Darrell is also lead analyst for NASCAR on FOX. With him is Rusty Wallace, and former NASCAR driver, former champion, TV broadcaster as well.

Darrell, what's the story with your brother?

DARRELL WALTRIP, FORMER NASCAR DRIVER, LEAD FOX NASCAR ANALYST: Well, Larry, you know, it is -- down here at this time it appears to me that NASCAR is really going out of their way to keep these teams under control.

I have a theory. I think NASCAR is concerned. You know, they have always been a little slow about adapting to technology. Computerized timing and scoring in computers, telemetry in the cars and those kind of things, they tried to stay away from that.

But these teams, with all of the money they have got now and all of the engineers they have got now, they have really stepped up the technology. I think what NASCAR is really trying to tell these teams and show these teams is, you might be smart, you might have a lot of money. You might have a lot of engineers. But we are right there with you. You are not going to outsmart us. We're going to keep this sport under control. We are going to keep our arms around it. And you are going to pay the price if you don't walk the line.

KING: Rusty, how do you read the substance getting into the engine?

RUSTY WALLACE, FORMER NASCAR DRIVER, TV BROADCASTER: Well, Larry, he just -- Michael has got a brand-new team. He has put his heart and soul into it. He has put a lot of effort in this team. They didn't have any points, they needed to get in.

Evidently he didn't know what was going on with the engine builders or whoever was working on this car. They put this substance in the fuel to try to enhance the performance of the engine to get him in the race.

Now look, he had a lot of pressure on him, a lot of good sponsors in that team, Toyota, NAPA, people like that. So look, they pushed the edge. They got caught. They had to pay the big fines. And I'm with Darrell a little bit.

You know, these guys are trying to level this playing field. They don't want this cheating to get out of hand right now. In fact, they just stopped it. Right now they said, we are not going to allow any of that in the sport. We are going to fix it right.

And I believe they have definitely made an example out of Michael. They made an example out of Evernham race team and Matt Kenseth. But they did send a big message. And the message is, we are not going to tolerate any of this. And they stopped it in its tracks. KING: Joe Saraceno, writing in today's USA Today, Darrell, said: "NASCAR has whipped out an elephant gun to shoot a flea. None of this stuff is new. Nothing is likely to change. What NASCAR vows to do is tantamount to sanitizing the last remnants of its greatest allure." Do you agree totally with that?

WALTRIP: Well, what you don't want to have is overreaction and -- by the sanctioning body. And I think in a couple of cases, Ray Evernham's cars, for instance, of Kasey Kahne and Elliott Sadler, they had some holes drilled in some bolts. They gunned -- what we call gun drilled, drilled some holes to the center of some bolts.

They said they had been doing that for over a year now. Nothing new. That's the way it has been. It has gone through tech other times without any issue whatsoever. But down here this time it got them a four -- it got their crew chief suspended for four races and a $50,000 fine.

I think it reminds me of a game -- a football game or a basketball game, where the referees get a little whistle-happy and they want to blow a touch foul, they want to call it. And I think what we have got going on here is, again, I think they are just trying to send a message.

Look, we are going to be looking at everything. And you know the best inspectors in our garage, and he will tell you, it's the other teams. The other teams go say, hey, you need to go over and look at that 9 car. He has got something going on with the back of it there and we are not sure it is legal or not.

WALLACE: Well, you know as well as I do, Darrell, that the other teams will rat you out in a heartbeat. So they want to win. They're trying to get your money. They don't want you to get ahead of anybody. So it's a tough deal in the garage area. Bill Frantz once told me, there's no secrets in this sport.

KING: All right, Rusty, how damaging is this to the sport?

WALTRIP: We just got cut off, guys.

KING: Can you hear me, Rusty?

WALTRIP: We just lost...

KING: OK. Let me get a break and we'll come right back with Darrell Waltrip and Rusty Wallace and hope we can clear that right up. Don't go away.

(BEGIN VIDEO CLIP)

MICHAEL WALTRIP, NASCAR DRIVER: Came real close to not racing today. I have a beautiful 9-year-old NASCAR (INAUDIBLE) why daddy cheated the rules. And that will hurt you.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

KING: Before we get back with Darrell Waltrip and Rusty Wallace, let's head to the Amazon in Brazil. And standing by, he's been there all week, is Anderson Cooper, the host of "AC 360."

Is this a wind-up night tonight, Anderson?

ANDERSON COOPER, CNN ANCHOR: Well, Larry, we will be here actually next Monday and Tuesday as well. But tonight we are in Manaus, a city really in the heart of the Amazon. This is ground zero, you might say, over the battle of the rainforest and future of the rainforest and many of the species inside the rainforest.

Tonight wildlife biologist Jeff Corwin is going to show us some of the most endangered species up close and very personal. A fascinating look at some of the wildlife that we have been surrounded with these last couple of days.

We'll also have all of the news from the United States and around the world, the latest on Congress' actions regarding Iraq, and ongoing controversy over Anna Nicole Smith's will. All of that and more, Larry, at the top of the hour.

KING: That's Anderson Cooper. He goes with others fear to tread. He's online at "AC 360" at the top of the hour, 10 Eastern, 7 Pacific. Back to Darrell Waltrip and Rusty Wallace in Daytona.

Rusty, what I asked before the ear phones kicked out, how damaging is all of this to the sport?

WALLACE: Well, it is not real damaging. Michael Waltrip has got a lot of integrity in this sport. He's a real good character. He's a great guy. He has helped built the sport. He has won two Daytona 500s. And I don't think Michael is the type of guy that would intentionally go out and do something. He has got a large group of people behind him with Toyota.

And by the way, I don't think it's Toyota people either. You have got some people inside the organization that really wanted make this team run good. So, Larry, I believe this is a one-time situation that NASCAR has put the clamps on, has fixed. I don't think you are going to see this again.

KING: Darrell?

WALTRIP: I don't know about that one-time situation. We have been going through this for a long time down here at Daytona and Talladega. One of the reasons why, Larry, is down here, the cars are underpowered. They have got a restrictor plate that sets under the carburetor that restricts the horsepower. And you do everything...

KING: Why?

WALTRIP: ... that you can -- well, to keep the speeds down. They don't want the cars running over 200 miles an hour here in Talladega. So they restrict the horsepower. How you make horsepower is air and fuel. They restrict the air and the fuel to the engine.

So you're always trying to figure out how to get more air and more fuel in the engine by sometimes really creative ways. And we have had more problems at restrictor plate races than we had anyplace else. The cars aerodynamically -- they work on that more than anything else here at Daytona, and also trying to get around that restrictor plate.

So the opportunity to cheat and the results of cheating are more obvious here and more tempting here than anywhere we go.

KING: Rusty, was the penalty to Michael fair?

WALLACE: I thought the penalty was a little on the stiff side, to tell you the truth. I mean, I have never heard of 100 points taken away from a driver. You have got to remember now, they are going into the Daytona 500 without any points at all. These guys have not accumulated points. These guys were so mad at what Michael and his team did, that they assessed a 100-point penalty.

Meaning that if he starts the race and finishes the race and has like 150 points, when race is over, he is only going to have 50. They have never done that before, Darrell. I mean, usually they fine people and they have -- never have took points away, because they said, you haven't had points yet.

But they were really hot. They made a point, Larry. Now a lot of people didn't agree with how strong they got. But you know what? Through the whole entire garage area, there is nobody even thinking about cheating right now. They are all scared to death.

WALTRIP: Larry, here's a little bit of a problem I have. They fine these guys. They call it in pre-race, getting ready for qualifying. They have caught those guys and threw them out, four of them. They caught Jeff Gordon after the 150 yesterday, his car was too low. That's an automatic throw-out. And they found underneath the car something had come loose.

They determined -- they being NASCAR, the officials, and it's their prerogative, that what happened to his car was not intentional. Now that's where I kind of get a little bit edgy, I guess, is, how do they know when it's intentional and when it isn't intentional?

Yesterday they said that wasn't. So the consistency is something that I have harped on for a long time. The penalties are the penalties, they are black and white. Stick to the book.

WALLACE: On the other hand, Darrell, you know, if you have a part -- if you have a part failure that fails, that's why I understand on NASCAR's part, they look at it if this is a part failure that has failed, they can say, hey, look, I agree that this was not intentional and that is what NASCAR's stance was.

WALTRIP: Yes, well, they have got a height that the car is supposed to be and it goes through after the race. It wasn't that height, don't look any further. You're out of here. KING: Rusty, why is too low bad?

WALLACE: If a car is too low to the ground, Larry, it can get real low to the ground and the car will run faster. The lower the car is to the ground, the faster the car will go.

Now Jeff Gordon's car came in real low to the ground because it had this shock failure. And NASCAR deemed it was not intentional. So they took them, put him in the back of the pack, but they let the win stand.

KING: I got you. In other words, like, where did I go right? Darrell Waltrip and Rusty Wallace. We'll be right back with some more, don't go away.

(BEGIN VIDEO CLIP)

KYLE PETTY, NASCAR DRIVER: I live in that glass house. I have cheated 10 million times, and I'll admit it straight up, dude. I have done it 10 million times, lived to pay for it and lived to walk away from it. So we have all been there.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

BORIS SAID, NASCAR DRIVER: Just like speeding on the highway, you know, you get $100 ticket. If the fine was life imprisonment, you wouldn't speed. And that's what NASCAR is doing now to us racers.

(END VIDEO CLIP)

KING: Let's take a few calls for the two champs, Darrell Waltrip and Rusty Wallace. Southwick, Massachusetts, hello?

CALLER: How are you doing, Larry.

KING: Hi.

CALLER: My question is, do you think the inspectors were a little overzealous because this is Toyota's first time being in the Daytona 500?

KING: Darrell?

WALTRIP: No, I really don't. What my brother did -- or what my brother's team did was wrong. It's one of those sacred areas you don't mess with. Engine size, fuels, some of things, we all know that's taboo. Don't go there. That's a, no-no don't touch me there, that's a no-no square.

And so -- but my brother is very, very upset. And he is very disappointed. He almost didn't race yesterday. He was ready to go home. And then he spun out the most popular driver in the sport, Dale Jr. I thought surely he would probably pull the car in, but he didn't, he stayed in there and he got himself in the race.

But, no, they didn't pick on Toyota, they didn't pick on Michael. They went in an area you shouldn't have gone in.

KING: Mount Vernon, Ohio, hello?

CALLER: Hi. Congratulations, both of you, on all of your racing successes. I'm a big fan. I have a question, I know this week especially, Darrell, with both of you having brothers or fathers or uncles, family in racing, how hard is it to be reporters and to try and, you know, stay fair and all of that kind of stuff?

KING: Rusty, how hard is it for you?

WALLACE: Well, it's hard to watch my brothers race. It's hard to watch my son race. It's hard to be saying the right things. I mean, I watched my son spin out the other day all by himself. And then I watched another car drive through the side of him.

There's emotions all running through me like crazy. But you know, I'm paid like ESPN to call the race and call it correctly and that's what I'm doing. But I will tell you, with all of that said and done, Darrell, it's tough to do that, to sit up there and have to make those calls and go, man, that is going to hurt, but I have got to do it.

WALTRIP: Yes. You want -- listen, he and I are both alike. We want everybody to like us. We want all of the fans to like us. We want all of the drivers to like us. We want NASCAR to like us. But we -- it's impossible to keep everybody happy. You have got to tell it like you see it.

It may not be what you see at home or it may not be what NASCAR thinks, but it's what I think. And that's what they pay us to do. It's our opinion and, you know, we try to be objective. I know I do.

People say, oh, you talk about your brother and Toyota all the time. I, on purpose, I'll poke Larry and say, look where Michael is. Make -- let Larry talk about it. He's my partner in the booth, or Mike Joy. But I try to be objective, try to be fair and I try not to be opinionated.

KING: Rusty, did you like driving Daytona?

WALLACE: I loved driving Daytona, Larry. It was really rough on me in my early career. I had a lot of crashes. In fact, I went back the back straightaway into a rim, remember, Darrell?

WALTRIP: Oh, yes.

WALLACE: Like 25 times one time. And this place was terrible to me. But in the last five or six years of my career, it got really good to me. I almost won this Daytona 500 about three times. And my very last time I ever raced here, Larry, I finished 10th. So I did have a good run. And I got to really like Daytona. Daytona is a special place. It's fun. It's -- and then it can be mean. But it's such a monumental race. It's the Super Bowl. We kick the very first race off right here. We kick all of those hundreds of thousands of fans who have sleeping at home and, bam, right in the gut, man, we wake them right up with two solid weeks of racing here at Daytona. So I love coming here because of that.

KING: One quick thing, Darrell, who is going to win tomorrow -- Sunday?

WALTRIP: Well, right now, Sunday looks to me like Tony Stewart is certainly sitting on the best car down here if he has got -- if he continues to have the kind of luck that he has had so far. He won the Bud Shootout. He won the 150 qualifier. He's the man to beat, I would say.

KING: Thank you both...

WALLACE: And, Larry, that's pretty hard to predict things like that. But I agree with Darrell.

KING: I know. Darrell Waltrip...

WALTRIP: And maybe Dale Jr.

KING: ... and Rusty Wallace...

WATRIP: I don't want to count him out.

KING: two of the best. Thank you, guys, at Daytona.

Before I say so long to you for the weekend, I'd like to say so long to one of the best LARRY KING LIVE staffers here in L.A. Kelsey Myers, there he is, came to work with us in 2001. And since then, he has been helping us get this show on the air with unfailing reliability. He has also proven himself as a producer in the field, snagging some great guests on breaking stories we cover.

Next week he's off to a great gig at one of the big three of broadcast news, ABC. We will all miss Kelsey's can-do attitude and God knows I'll miss his knowledge of baseball.

Best of luck to you, Kelsey, and as soon as you hate it over there, come back.

Go get 'em, Kelsey. Right now, let's get down to Brazil.

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