Weighing the Evidence

Dear Viewers,

Last night we took calls and I regretted that we did not allow for more time. I like doing "call in" and the panel had fun doing it too. It allows us to interact with the viewers — otherwise we have sort of a voyeur situation. We - the panel - talk about the case and you listen and watch but we never see you or have a chance to talk to you about the trial.

I will sit down with the producers today and we will try and figure out if in the end it was a good idea to do. If it "worked," we will do more "call in."

If you follow the show, you will know that many - including prosecutors on our panel - think the Peterson (search) prosecutors are doing a lame job of presenting their case. This does not necessarily mean that in the end there will be a "not guilty" verdict. You can be a terrible prosecutor and still get guilty verdicts. I have seen that so many times!

Likewise, bad defense lawyers can get "not guilty" verdicts. I have seen that so many times!! It sure helps to have a smart and competent lawyer but even the worst lawyers win. You just never know....

Juries, by the way, don't sit and "grade" prosecutors or defense lawyers when they sift through the evidence in the jury room and arrive at a verdict based on the graded performance of the lawyer. Sure there may be a comment or two in the jury room about the quality of the lawyering but in the end it is the collective view of the evidence.

Jurors take their jobs very seriously when it comes down to voting "guilty" or "not" — especially in a death penalty case. Jurors usually can and do "overlook" some bad strategy or some inept presentations and simply weigh the evidence. Of course if a lawyer is so bad as to not challenge some critical piece of evidence or present some critical piece of evidence, bad lawyering will effect the outcome.

The prosecutors in this case are, in part, handicapped by some poor police work. It is not their fault that at least one police officer did some "handiwork" on a police form and blurted out from the witness stand an inappropriate comment. It is also not their fault that there is little physical evidence tying the accused to the crime.

Lack of physical evidence in this case is huge. Why the lack of physical evidence? It could be that the accused did not commit the crime and therefore there is, for instance, no crime scene evidence at home — or it could mean the accused is that clever or the police that inept. None of the foregoing, however, is the responsibility of the prosecutors.

Like my panelists, including the prosecutor panelists, I do question the Peterson prosecutors' overall strategy. They have made a relatively simple circumstantial case into a long dragged out case.

You need to keep a case moving and convincing for a jury. If you dump every piece of information before the jury - including the irrelevant - the jurors will lose sight of what it is you are trying to prove. You confuse them and dilute the important parts of your case.

My panelists have said that they think the jurors have already decided this case. I don't agree. This case will be won or lost in the closing argument. I think closing argument in this case — a completely circumstantial case - is more important than Amber Frey (searchtestimony.

By the way, it is impossible to know what that jury will do in the end but there are 3 choices: guilty, not guilty or can't reach a verdict ("hung".)

You have a 33 percent chance of being right if you guess now. Those who stick their heads out and guess now and guess right will be rather pompous after the verdict and act as though they know something the rest of us don't.


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Watch On the Record with Greta Van Susteren weeknights at 10 p.m. ET