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Jurors No. 5 Dismissed From Scott Peterson Trial

Aired November 10, 2004 - 13:33   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.


BETTY NGUYEN, CNN ANCHOR: Right now in the news, a gruesome discovery in Falluja. An Iraqi military official says Iraqi troops have found sites described as hostage slaughterhouses. Now along with records of people who have been kidnapped and killed, soldiers also found CDs that showed beheadings and black clothes worn by kidnappers when seen on television. It is unclear if there was any information on people who are still missing.
And talk about your good cop/bad cop scenario. We're not sure how happy two accident victims were to see this posse of firefighters and police. Oh, sure, most people would probably like to be rescued if their car slid down an embankment in California's Zanderlic (ph) National Forest, but after getting pulled from danger, these two are bound for the slammer. That's right, suspected of carjacking.

And Martha Stewart needs a little help from her friends, or at least her company. The incarcerated former CEO of Martha Stewart Omnimedia has filed a claim for help with her legal bills. She's asking for $3.7 million. An independent expert will have to decide whether she is entitled to getting those funds.

TONY HARRIS, CNN ANCHOR: OK, this just in to CNN. Could it be that another juror is about to be bounced from the Peterson case? Let's get you right out to Rusty Dornin for the latest on this.

Rusty, what do you know?

RUSTY DORNIN, CNN CORRESPONDENT: Well, it just came out in court. Apparently juror No, 5, who was an alternate, but came on when that first juror was dismissed, he has now been excused. Now this man was the doctor and the lawyer that was appointed the foreman of the jury when they went in to deliberations. People are saying he was very methodical. He went into the jury deliberation room with more than a dozen notebooks underneath his arm. They have now appointed juror No. 6.

I've got to tell you something, This is a big surprise to those of us here at the courthouse, because juror No. 6 is a firefighter that many of us in the courtroom never saw him take any notes at all during the trial. Oftentimes, he appeared very bored during the proceedings. But apparently, he is now the new foreman of this jury, and that's all we know right now -- Tony.

HARRIS: All right, Rusty, let's recap this thing if we can now. The juror yesterday was the juror who was doing the work, the research work on the Internet, is that correct?

DORNIN: Right, that was juror No. 7. It's hard to keep track. You need a scorecard.

HARRIS: So that was juror No. 7.

DORNIN: Yes.

HARRIS: Now this juror today is juror number -- what number is this Juror? No. 5?

DORNIN: No. 5. But he was actually an alternate...

HARRIS: He was an alternate.

DORNIN: ... that replaced the very first juror that was dismissed.

HARRIS: OK.

DORNIN: So he becomes -- and he's elected foreman of the jury. Like I said, doctor/lawyer, very cautious, very stoic during proceedings, but apparently something was going on in that jury room. As I told you, sources told CNN the judge did discover during some of these one-on-one interviews yesterday before the other juror was dismissed, that there's a lot of contention in that jury room and a big battle going on. This could have had something to do with this. So he's now excused the foreman as a juror. Alternate No. 3 is now on that jury, and so that's who's going to be replacing them.

HARRIS: All right, OK, and just further clarification. So the alternate replacing the woman who was kicked off the jury yesterday, is this the person with the tattoos, or...

DORNIN: No, that's -- she's already on the jury.

HARRIS: She's already on the jury.

DORNIN: She becomes juror No. 7.

HARRIS: OK.

DORNIN: OK, so put all that aside.

HARRIS: Got you.

DORNIN: OK, juror No. 5 is now being excused. He is the current foreman of the jury. He is being excused and being replaced by the third alternate.

HARRIS: Now, Rusty, stay right where you are. Jeffrey Toobin is going to join us on the phone right now.

Jeffrey, are you there?

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: I am, but I'm not sure I believe what I'm hearing. I love Rusty, but I think she's making this all up.

DORNIN: Believe me...

HARRIS: How could she make up this, Jeffrey? How could she make this up.

All right, here's the question for you, Jeffrey, our CNN legal analyst -- do we have a runaway jury here?

TOOBIN: Well, I'm going to answer that question the way I answer most questions about the Peterson case -- I have no idea. I mean, this case is so weird that I don't know. I mean, the point is, I guess, that the judge is determined to keep this thing moving.

HARRIS: Yes.

TOOBIN: And he is getting rid of jurors who are impediments, and that, I suppose, is good for the prosecution, provided that he has a legitimate basis to get rid these jurors. Now, it is appropriate to get rid of jurors who are violating the rules in some specific way, whether researching outside of the evidence in the case or engaging in other misconduct. It is not appropriate to get rid of jurors who simply disagree with the other jurors about the evidence, and that is something that when all these proceedings are unsealed will be obviously something that an appeals court, if it comes to that, will look at very carefully.

HARRIS: And, Rusty, what's your sense of what we have here? Do we have jurors kind of freelancing, making their own decisions, not willing to be a part of the deliberative process anymore? What is your sense of what we have going on here?

DORNIN: From what we understand from sources about what happened, that the judge did glean from these one-on-one interviews yesterday, was there's a battle going on. I mean, there's not just perhaps one person that was in opposition to the other 11, that there is a camp of people in opposition to one another. And this -- apparently, the foreman might have had something to do with that. Now, I do understand that the alternate No. 3 is a white male. He's in his 50s, and he is retired. He is the one who is going to be stepping up and becoming juror No. 5.

But I say many of us here very surprised about juror No. 6 who just really didn't seem to be very involved in the last five months of this trial in terms of paying attention to the proceedings.

HARRIS: And, Rusty, you mentioned the battles that we're sort of gleaning from these one-on-ones. Is the battle over evidence or is it more personal now?

DORNIN: Apparently -- we're not sure. There's just -- there's been contention in terms of people adopting a stance is what we know so far.

HARRIS: And staying there?

DORNIN: And staying there and not wanting to give it up. HARRIS: And, Jeffrey, what's your sense of this? Is it your sense that we can get a decision from this jury, or do we just need to just declare a mistrial, a hung jury and move on?

TOOBIN: Well, considering the amount of time, money, emotional energy on behalf -- on the part of the families that has gone into this trial -- 170 witnesses, 23 weeks, I believe, of trial -- the judge is going to do everything possible to avoid a mistrial and having to do this monstrosity again.

HARRIS: Yes.

TOOBIN: But you know, at some point it may become impossible. It does not seem impossible at this point. There are still more alternates who haven't been called. At the pace we're going of losing one juror a day, they won't be around for very long. But I think the judge is going to do everything in his power to avoid a mistrial. And I think he's right to do that.

HARRIS: Go ahead, Rusty.

DORNIN: The one thing is -- and as far as Jeffrey may know this, too -- is that Mark Geragos is usually the first one to stand up and say, "Hey, look, judge, this is a mistrial." Apparently, the folks in the courtroom are telling us that he is thrilled about this, he looks very happy, and had his arm around Scott and the jury's already been sent back in for deliberations.

HARRIS: Well, Jeffrey, why would he be thrilled about this?

TOOBIN: Well, because, you know, when you are with jurors in the same room for so long, including the alternates, you develop a sense through they body language, through their -- what they say, which jurors are sympathetic to your position, and which ones aren't. If jurors you think are sympathetic to you get on the jury and bad jurors for you get off, you're happy.

Apparently, Geragos thinks he has traded up in some way. Those are just surmises. So, people are surprised -- can be surprised by jurors' actual attitudes, but you certainly -- trial lawyers always have a sense of who the jurors who are favorable are.

HARRIS: Rusty, I hear you wanting to jump in.

DORNIN: Apparently, Mark Geragos, the defense team is thrilled about this, but the folks in the court are also saying the jury seemed really grim-faced, very upset. And one juror mumbling under his breath that everyone could hear, was "Oh, man," when this all took place and the judge announced this.

So, while the defense may be very happy, this looks like a very frustrated jury.

TOOBIN: Well, and that is good for the defense. Because if they are stymied, if they are making no progress, if this, you know, somehow were to end in a mistrial or a hung jury, that's a victory for the defense.

HARRIS: Now, Jeffrey, give me a sense of when you bring these alternates into the process, have they been in on the deliberation to this point, or are we having to start over again, in essence?

TOOBIN: No, they have not been in on the deliberations at all. And the judge will instruct them, as he instructed the jury yesterday, when we got yesterday's new juror, to start deliberations from the beginning. So, now they will have to start deliberations from the beginning again.

As a practical matter, you know, I think it's more a matter of bringing the new jurors up to speed. But they are, at least as a technical legal matter, back to square one on deliberations.

HARRIS: Go ahead, Rusty.

DORNIN: I do have a question for Jeffrey, too. You know, if you have a majority in that jury room, wouldn't it be true that, you know, as they're getting them up to speed, perhaps, they're presented evidence in a certain light which could also influence these new jurors?

TOOBIN: Absolutely. And there's nothing really inappropriate about that, because jurors are supposed to, you know, make the case that they believe in, in the jury room. That's what deliberations are for.

What the process is supposed to do -- and this, you know, is perhaps more in theory than in practice -- is basically everyone start from square one when you have a new juror, that jurors are supposed to begin their deliberations again. Obviously, the jurors can't unlearn what they know about each other's positions, but they're not supposed to inflict them too much on the new juror.

HARRIS: Well, Rusty, let me ask you about what you said just a moment ago, that the reaction to this, from some of the jurors, was sort of to hang their heads and the deep sighs.

Give us a -- expand on that a little bit more and what you think that means, at least in your conversations with other court observers, as are they just tired of the process? They've been sequestered, we know that. Are they ready to get this behind them and move on?

DORNIN: You know, we're not sure at this point. They could just be frustrated because there has just been so many problems, so many new people, and having to start over again. As Jeffrey said, that's so much time and energy invested in this. They've got a holiday tomorrow. They can't deliberate tomorrow. They come back Friday. And if they can't come up with a verdict Friday, once again they're going to be spending the weekend sequestered.

So, I think it's that's frustration of moving in a direction -- now they've got to take a step back, start all over again, and get somebody else to come aboard. HARRIS: OK. Now, let me ask you this question of you, Rusty, and then I want -- Jeffrey, chime in on this. Are we reaching a point with all of the problems collectively, where any decision made by this jury lacks a sense of real credibility?

DORNIN: Yeah, that's a tough question to answer. I mean, it depends on how much longer they look at the evidence. If we come back -- and Jeffrey might agree, might disagree -- if they come back very quickly with a verdict, certainly their credibility might be in question, because they've got these jurors that have got to get up to speed and really go through the evidence.

it just seems like these interruptions are taking away from any real deliberations that can be taking place. These contentions, these battles have all been interfering with it. And then, if they come back very quickly, their credibility could be damaged.

HARRIS: Jeffrey, what do you think?

DORNIN: You know, I think Rusty's right, that quick verdicts generally reflects poorly on the jurors. Obviously, the most famous example is the O.J. Simpson criminal case where, after months and months of trial, they came back in one day.

Here, the jury at least seems to be trying to deliberate, though it keeps getting interrupted. But I wouldn't overstate, you know, how big the problems are at this point. You know, to the extent people look back at this six months from now and if there's a verdict after a decent amount of deliberations -- I think the deliberation controversy will be largely a footnote, if the verdict is one that people deem to be supported by the evidence.

HARRIS: OK, let me have you both stick around for just a moment, until the other side of the break. CNN's David Mattingly is in the courtroom, is going to be coming out and joining us in conversation in a couple of minutes.

Let's take a quick break. And we'll come back with Rusty Dornin and Jeffrey Toobin in just a moment. More LIVE FROM when we come back.

(COMMERCIAL BREAK)

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 November 10, 2004 - 13:33   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
BETTY NGUYEN, CNN ANCHOR: Right now in the news, a gruesome discovery in Falluja. An Iraqi military official says Iraqi troops have found sites described as hostage slaughterhouses. Now along with records of people who have been kidnapped and killed, soldiers also found CDs that showed beheadings and black clothes worn by kidnappers when seen on television. It is unclear if there was any information on people who are still missing.
And talk about your good cop/bad cop scenario. We're not sure how happy two accident victims were to see this posse of firefighters and police. Oh, sure, most people would probably like to be rescued if their car slid down an embankment in California's Zanderlic (ph) National Forest, but after getting pulled from danger, these two are bound for the slammer. That's right, suspected of carjacking.

And Martha Stewart needs a little help from her friends, or at least her company. The incarcerated former CEO of Martha Stewart Omnimedia has filed a claim for help with her legal bills. She's asking for $3.7 million. An independent expert will have to decide whether she is entitled to getting those funds.

TONY HARRIS, CNN ANCHOR: OK, this just in to CNN. Could it be that another juror is about to be bounced from the Peterson case? Let's get you right out to Rusty Dornin for the latest on this.

Rusty, what do you know?

RUSTY DORNIN, CNN CORRESPONDENT: Well, it just came out in court. Apparently juror No, 5, who was an alternate, but came on when that first juror was dismissed, he has now been excused. Now this man was the doctor and the lawyer that was appointed the foreman of the jury when they went in to deliberations. People are saying he was very methodical. He went into the jury deliberation room with more than a dozen notebooks underneath his arm. They have now appointed juror No. 6.

I've got to tell you something, This is a big surprise to those of us here at the courthouse, because juror No. 6 is a firefighter that many of us in the courtroom never saw him take any notes at all during the trial. Oftentimes, he appeared very bored during the proceedings. But apparently, he is now the new foreman of this jury, and that's all we know right now -- Tony.

HARRIS: All right, Rusty, let's recap this thing if we can now. The juror yesterday was the juror who was doing the work, the research work on the Internet, is that correct?

DORNIN: Right, that was juror No. 7. It's hard to keep track. You need a scorecard.

HARRIS: So that was juror No. 7.

DORNIN: Yes.

HARRIS: Now this juror today is juror number -- what number is this Juror? No. 5?

DORNIN: No. 5. But he was actually an alternate...

HARRIS: He was an alternate.

DORNIN: ... that replaced the very first juror that was dismissed.

HARRIS: OK.

DORNIN: So he becomes -- and he's elected foreman of the jury. Like I said, doctor/lawyer, very cautious, very stoic during proceedings, but apparently something was going on in that jury room. As I told you, sources told CNN the judge did discover during some of these one-on-one interviews yesterday before the other juror was dismissed, that there's a lot of contention in that jury room and a big battle going on. This could have had something to do with this. So he's now excused the foreman as a juror. Alternate No. 3 is now on that jury, and so that's who's going to be replacing them.

HARRIS: All right, OK, and just further clarification. So the alternate replacing the woman who was kicked off the jury yesterday, is this the person with the tattoos, or...

DORNIN: No, that's -- she's already on the jury.

HARRIS: She's already on the jury.

DORNIN: She becomes juror No. 7.

HARRIS: OK.

DORNIN: OK, so put all that aside.

HARRIS: Got you.

DORNIN: OK, juror No. 5 is now being excused. He is the current foreman of the jury. He is being excused and being replaced by the third alternate.

HARRIS: Now, Rusty, stay right where you are. Jeffrey Toobin is going to join us on the phone right now.

Jeffrey, are you there?

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: I am, but I'm not sure I believe what I'm hearing. I love Rusty, but I think she's making this all up.

DORNIN: Believe me...

HARRIS: How could she make up this, Jeffrey? How could she make this up.

All right, here's the question for you, Jeffrey, our CNN legal analyst -- do we have a runaway jury here?

TOOBIN: Well, I'm going to answer that question the way I answer most questions about the Peterson case -- I have no idea. I mean, this case is so weird that I don't know. I mean, the point is, I guess, that the judge is determined to keep this thing moving.

HARRIS: Yes.

TOOBIN: And he is getting rid of jurors who are impediments, and that, I suppose, is good for the prosecution, provided that he has a legitimate basis to get rid these jurors. Now, it is appropriate to get rid of jurors who are violating the rules in some specific way, whether researching outside of the evidence in the case or engaging in other misconduct. It is not appropriate to get rid of jurors who simply disagree with the other jurors about the evidence, and that is something that when all these proceedings are unsealed will be obviously something that an appeals court, if it comes to that, will look at very carefully.

HARRIS: And, Rusty, what's your sense of what we have here? Do we have jurors kind of freelancing, making their own decisions, not willing to be a part of the deliberative process anymore? What is your sense of what we have going on here?

DORNIN: From what we understand from sources about what happened, that the judge did glean from these one-on-one interviews yesterday, was there's a battle going on. I mean, there's not just perhaps one person that was in opposition to the other 11, that there is a camp of people in opposition to one another. And this -- apparently, the foreman might have had something to do with that. Now, I do understand that the alternate No. 3 is a white male. He's in his 50s, and he is retired. He is the one who is going to be stepping up and becoming juror No. 5.

But I say many of us here very surprised about juror No. 6 who just really didn't seem to be very involved in the last five months of this trial in terms of paying attention to the proceedings.

HARRIS: And, Rusty, you mentioned the battles that we're sort of gleaning from these one-on-ones. Is the battle over evidence or is it more personal now?

DORNIN: Apparently -- we're not sure. There's just -- there's been contention in terms of people adopting a stance is what we know so far.

HARRIS: And staying there?

DORNIN: And staying there and not wanting to give it up. HARRIS: And, Jeffrey, what's your sense of this? Is it your sense that we can get a decision from this jury, or do we just need to just declare a mistrial, a hung jury and move on?

TOOBIN: Well, considering the amount of time, money, emotional energy on behalf -- on the part of the families that has gone into this trial -- 170 witnesses, 23 weeks, I believe, of trial -- the judge is going to do everything possible to avoid a mistrial and having to do this monstrosity again.

HARRIS: Yes.

TOOBIN: But you know, at some point it may become impossible. It does not seem impossible at this point. There are still more alternates who haven't been called. At the pace we're going of losing one juror a day, they won't be around for very long. But I think the judge is going to do everything in his power to avoid a mistrial. And I think he's right to do that.

HARRIS: Go ahead, Rusty.

DORNIN: The one thing is -- and as far as Jeffrey may know this, too -- is that Mark Geragos is usually the first one to stand up and say, "Hey, look, judge, this is a mistrial." Apparently, the folks in the courtroom are telling us that he is thrilled about this, he looks very happy, and had his arm around Scott and the jury's already been sent back in for deliberations.

HARRIS: Well, Jeffrey, why would he be thrilled about this?

TOOBIN: Well, because, you know, when you are with jurors in the same room for so long, including the alternates, you develop a sense through they body language, through their -- what they say, which jurors are sympathetic to your position, and which ones aren't. If jurors you think are sympathetic to you get on the jury and bad jurors for you get off, you're happy.

Apparently, Geragos thinks he has traded up in some way. Those are just surmises. So, people are surprised -- can be surprised by jurors' actual attitudes, but you certainly -- trial lawyers always have a sense of who the jurors who are favorable are.

HARRIS: Rusty, I hear you wanting to jump in.

DORNIN: Apparently, Mark Geragos, the defense team is thrilled about this, but the folks in the court are also saying the jury seemed really grim-faced, very upset. And one juror mumbling under his breath that everyone could hear, was "Oh, man," when this all took place and the judge announced this.

So, while the defense may be very happy, this looks like a very frustrated jury.

TOOBIN: Well, and that is good for the defense. Because if they are stymied, if they are making no progress, if this, you know, somehow were to end in a mistrial or a hung jury, that's a victory for the defense.

HARRIS: Now, Jeffrey, give me a sense of when you bring these alternates into the process, have they been in on the deliberation to this point, or are we having to start over again, in essence?

TOOBIN: No, they have not been in on the deliberations at all. And the judge will instruct them, as he instructed the jury yesterday, when we got yesterday's new juror, to start deliberations from the beginning. So, now they will have to start deliberations from the beginning again.

As a practical matter, you know, I think it's more a matter of bringing the new jurors up to speed. But they are, at least as a technical legal matter, back to square one on deliberations.

HARRIS: Go ahead, Rusty.

DORNIN: I do have a question for Jeffrey, too. You know, if you have a majority in that jury room, wouldn't it be true that, you know, as they're getting them up to speed, perhaps, they're presented evidence in a certain light which could also influence these new jurors?

TOOBIN: Absolutely. And there's nothing really inappropriate about that, because jurors are supposed to, you know, make the case that they believe in, in the jury room. That's what deliberations are for.

What the process is supposed to do -- and this, you know, is perhaps more in theory than in practice -- is basically everyone start from square one when you have a new juror, that jurors are supposed to begin their deliberations again. Obviously, the jurors can't unlearn what they know about each other's positions, but they're not supposed to inflict them too much on the new juror.

HARRIS: Well, Rusty, let me ask you about what you said just a moment ago, that the reaction to this, from some of the jurors, was sort of to hang their heads and the deep sighs.

Give us a -- expand on that a little bit more and what you think that means, at least in your conversations with other court observers, as are they just tired of the process? They've been sequestered, we know that. Are they ready to get this behind them and move on?

DORNIN: You know, we're not sure at this point. They could just be frustrated because there has just been so many problems, so many new people, and having to start over again. As Jeffrey said, that's so much time and energy invested in this. They've got a holiday tomorrow. They can't deliberate tomorrow. They come back Friday. And if they can't come up with a verdict Friday, once again they're going to be spending the weekend sequestered.

So, I think it's that's frustration of moving in a direction -- now they've got to take a step back, start all over again, and get somebody else to come aboard. HARRIS: OK. Now, let me ask you this question of you, Rusty, and then I want -- Jeffrey, chime in on this. Are we reaching a point with all of the problems collectively, where any decision made by this jury lacks a sense of real credibility?

DORNIN: Yeah, that's a tough question to answer. I mean, it depends on how much longer they look at the evidence. If we come back -- and Jeffrey might agree, might disagree -- if they come back very quickly with a verdict, certainly their credibility might be in question, because they've got these jurors that have got to get up to speed and really go through the evidence.

it just seems like these interruptions are taking away from any real deliberations that can be taking place. These contentions, these battles have all been interfering with it. And then, if they come back very quickly, their credibility could be damaged.

HARRIS: Jeffrey, what do you think?

DORNIN: You know, I think Rusty's right, that quick verdicts generally reflects poorly on the jurors. Obviously, the most famous example is the O.J. Simpson criminal case where, after months and months of trial, they came back in one day.

Here, the jury at least seems to be trying to deliberate, though it keeps getting interrupted. But I wouldn't overstate, you know, how big the problems are at this point. You know, to the extent people look back at this six months from now and if there's a verdict after a decent amount of deliberations -- I think the deliberation controversy will be largely a footnote, if the verdict is one that people deem to be supported by the evidence.

HARRIS: OK, let me have you both stick around for just a moment, until the other side of the break. CNN's David Mattingly is in the courtroom, is going to be coming out and joining us in conversation in a couple of minutes.

Let's take a quick break. And we'll come back with Rusty Dornin and Jeffrey Toobin in just a moment. More LIVE FROM when we come back.

(COMMERCIAL BREAK)

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