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Toobin: Prosecution Botched Kobe Bryant Case

Aired August 11, 2004 - 14:19   ET

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

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


MILES O'BRIEN, CNN ANCHOR: Which brings us to our senior legal analyst, Jeffrey Toobin, who will help us sort through the legal cases of the day.
Jeff Toobin, good to see you. Let's start with Amber Frey. Clearly it's prurient, clearly the jury is listening. No question about it. We are all paying attention to his testimony. But Scott Peterson is not on trial for adultery. The issue here is murder. And the question is, do these details lead a jury to a conclusion that he's guilty of murder?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, that obviously is the question, and I don't have the answer. What is interesting is the amount of lying. I mean, obviously, adultery implies a certain amount of lying which is sort of implicit in the misconduct. But what the prosecutors I think are correctly relying on is that it's not the lying of the adultery, it's the fantasy life of being in Paris, of living in Sacramento or Fresno -- I forgot which city it was. The degree of lies is so great it is as if he was living a complete fantasy life that murder would fit more into. That's the theory of the prosecution.

O'BRIEN: So you are taking the jury down the road of deceit and sort of ratcheting up the level of deceit and leading them to that conclusion potentially. But there are other shortcomings in this case, though. Will this kind of paper over some of those short comings?

TOOBIN: Well you know, there are shortcomings. There's no physical evidence other than a hair that could have come from -- at any point from Laci Peterson in the boat. There's no eyewitness. There's no clear cause of death. The single most incriminating fact in this case has nothing to do with Amber Frey. The single most incriminating fact is that Scott Peterson was at San Francisco Bay 80 miles away from their house at the precise location his wife's body was discovered months later. That's the most important piece of evidence in this case. And Amber Frey is sort of interesting but she is not nearly as important as that fact.

O'BRIEN: It certainly gives the jury a sense of Peterson's character to the extent that that weighs in their deliberations. We'll just have to find out I guess.

Let's talk about Kobe Bryant, because in many respects that's a bigger legal story today. Essentially I guess the prosecutor is pretty much putting up the white flag at this point, whatever you may call it. Why don't you walk us through the strategy and why they would ask for a delay at this juncture.

TOOBIN: Well, things have been going so badly for the prosecutors at this point. You have the alleged victim, the accuser, virtually saying that she's out of the case, that she doesn't want to participate. She has filed a civil lawsuit which, of course, calls her motives into question. What the prosecutors have done now is what lawyers always try to do when they are in trouble, which is delay, hope things get better with a little time.

But what is interesting here is what will Kobe Bryant's lawyers do in response? One aggressive response might be to say, heck no, we don't want any delay. You indicted this guy. You said you could go to trial. Let's go to trial now; hold the prosecutor's feet to the fire in hope that that's the factor that causes them to pull the plug altogether.

O'BRIEN: Well, and I can't imagine the defense not doing that under these circumstances. They do have a speedy trial law there in Colorado, which they can rely upon or is that not as ironclad as we think?

TOOBIN: Speedy trial laws are very easy to get around. There are times excluded. It's really, I think, more of a strategic question than a legal question. And I don't think -- I think, you know, the defense lawyers will be pulled in two directions because you don't -- sometimes you just always want a delay. Defendants never really want to rush to trial. But here with the prosecutor so clearly reeling it seems to me the likely strategy is they will just say, hey, you indicted him, you said you could go to trial, let's go and see what happens.

O'BRIEN: You know, this one is worth a couple thousand words by one Jeff Toobin in "The New Yorker," because I'm very curious about where to point the fingers on that one. That courtroom was a mess. Was it the prosecution, was it the judge, what happened?

TOOBIN: I think the prosecutors are the problems here. I think this case was inadequately investigated before it was indicted. If you look at the evidence that has come out about DNA that was on the accuser's body when she came to court, that is -- when she was examined following the rape exam, DNA that did not -- that could not be associated with Kobe Bryant. I don't know how you indict a case at that point. There was no hurry to indict him. Kobe Bryant wasn't going anywhere. I think if this case falls apart the prosecutors are really going to have a lot to answer for. I don't blame the judge at all.

O'BRIEN: Up against the clock, Jeff Toobin, quick recess, thanks.

TOOBIN: Wait, one more point, Miles.

O'BRIEN: Yes.

TOOBIN: Free Mike Wallace.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com


Aired August 11, 2004 - 14:19   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
MILES O'BRIEN, CNN ANCHOR: Which brings us to our senior legal analyst, Jeffrey Toobin, who will help us sort through the legal cases of the day.
Jeff Toobin, good to see you. Let's start with Amber Frey. Clearly it's prurient, clearly the jury is listening. No question about it. We are all paying attention to his testimony. But Scott Peterson is not on trial for adultery. The issue here is murder. And the question is, do these details lead a jury to a conclusion that he's guilty of murder?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, that obviously is the question, and I don't have the answer. What is interesting is the amount of lying. I mean, obviously, adultery implies a certain amount of lying which is sort of implicit in the misconduct. But what the prosecutors I think are correctly relying on is that it's not the lying of the adultery, it's the fantasy life of being in Paris, of living in Sacramento or Fresno -- I forgot which city it was. The degree of lies is so great it is as if he was living a complete fantasy life that murder would fit more into. That's the theory of the prosecution.

O'BRIEN: So you are taking the jury down the road of deceit and sort of ratcheting up the level of deceit and leading them to that conclusion potentially. But there are other shortcomings in this case, though. Will this kind of paper over some of those short comings?

TOOBIN: Well you know, there are shortcomings. There's no physical evidence other than a hair that could have come from -- at any point from Laci Peterson in the boat. There's no eyewitness. There's no clear cause of death. The single most incriminating fact in this case has nothing to do with Amber Frey. The single most incriminating fact is that Scott Peterson was at San Francisco Bay 80 miles away from their house at the precise location his wife's body was discovered months later. That's the most important piece of evidence in this case. And Amber Frey is sort of interesting but she is not nearly as important as that fact.

O'BRIEN: It certainly gives the jury a sense of Peterson's character to the extent that that weighs in their deliberations. We'll just have to find out I guess.

Let's talk about Kobe Bryant, because in many respects that's a bigger legal story today. Essentially I guess the prosecutor is pretty much putting up the white flag at this point, whatever you may call it. Why don't you walk us through the strategy and why they would ask for a delay at this juncture.

TOOBIN: Well, things have been going so badly for the prosecutors at this point. You have the alleged victim, the accuser, virtually saying that she's out of the case, that she doesn't want to participate. She has filed a civil lawsuit which, of course, calls her motives into question. What the prosecutors have done now is what lawyers always try to do when they are in trouble, which is delay, hope things get better with a little time.

But what is interesting here is what will Kobe Bryant's lawyers do in response? One aggressive response might be to say, heck no, we don't want any delay. You indicted this guy. You said you could go to trial. Let's go to trial now; hold the prosecutor's feet to the fire in hope that that's the factor that causes them to pull the plug altogether.

O'BRIEN: Well, and I can't imagine the defense not doing that under these circumstances. They do have a speedy trial law there in Colorado, which they can rely upon or is that not as ironclad as we think?

TOOBIN: Speedy trial laws are very easy to get around. There are times excluded. It's really, I think, more of a strategic question than a legal question. And I don't think -- I think, you know, the defense lawyers will be pulled in two directions because you don't -- sometimes you just always want a delay. Defendants never really want to rush to trial. But here with the prosecutor so clearly reeling it seems to me the likely strategy is they will just say, hey, you indicted him, you said you could go to trial, let's go and see what happens.

O'BRIEN: You know, this one is worth a couple thousand words by one Jeff Toobin in "The New Yorker," because I'm very curious about where to point the fingers on that one. That courtroom was a mess. Was it the prosecution, was it the judge, what happened?

TOOBIN: I think the prosecutors are the problems here. I think this case was inadequately investigated before it was indicted. If you look at the evidence that has come out about DNA that was on the accuser's body when she came to court, that is -- when she was examined following the rape exam, DNA that did not -- that could not be associated with Kobe Bryant. I don't know how you indict a case at that point. There was no hurry to indict him. Kobe Bryant wasn't going anywhere. I think if this case falls apart the prosecutors are really going to have a lot to answer for. I don't blame the judge at all.

O'BRIEN: Up against the clock, Jeff Toobin, quick recess, thanks.

TOOBIN: Wait, one more point, Miles.

O'BRIEN: Yes.

TOOBIN: Free Mike Wallace.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com