Sentencing Scott Peterson

This is a partial transcript from "On the Record," November 18, 2004, that has been edited for clarity.

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GRETA VAN SUSTEREN, HOST: We're just days away from the jury in Redwood City, California, deciding whether Scott Peterson (search) will live or die.

Joining us in New York, former Westchester County judge and current Westchester County district attorney Jeanine Pirro. And Jim Hammer, former San Francisco assistant D.A. — he's also in New York. And here in Washington, defense attorneys Ted Williams and Bernie Grimm.

Jeanine, before we talk about the issue about whether it's likely he's going to live or die and what we think the jury's going to do, let's talk about possible appellate (search) issues. He's going to go to the court of appeals at some point.

JEANINE PIRRO, WESTCHESTER COUNTY, N.Y., D.A.: Right.

VAN SUSTEREN: What do you think is the strongest, not necessarily winning appeal, but what are we going to see him raise later?

PIRRO: I think the biggest issue right now for Geragos (search) is the removal of the foreman from the jury. I think that what will happen on Monday is the people are going to go in, they're going to get a couple of days to respond to Geragos' motion. I think the judge will put this thing over until after Thanksgiving, give Geragos, I'm sure, the opportunity to seek a writ, once he rules on the people's behalf. And at that point, we'll start hearing testimony with the same jury on the death penalty issue the week after Thanksgiving.

VAN SUSTEREN: Jim, in terms of removing the juror that Jeanine just spoke about, what's wrong with removing a juror, if the judge's goal is to get this to a verdict?

JIM HAMMER, FORMER ASST. SAN FRANCISCO D.A.: Well, that's the whole question. I mean, what happens in a jury, especially after they deliberate a few days, Greta, is often, someone disagrees. And the whole issue is, did they kick him off because he essentially disagreed? Did the 11 intimidate him, pressure him in some way? Or did he ask to be off because of the pressure? And again, somebody who is such loner like this, who I think didn't fit well with the group, there's a good chance he asked to get off. I think [Judge Alfred] Delucchi (search) held a very careful hearing, I suspect. But this is one of the most dangerous things a judge ever does: removing a juror during deliberations.

VAN SUSTEREN: Bernie, the key question is, what did the jurors say and what did the judge ask at that hearing that led to his removal? A judge cannot properly pull a juror off if the juror simply doesn't agree with everybody else, right?

BERNIE GRIMM, CRIMINAL DEFENSE ATTORNEY: No, absolutely not. A juror can come out and say, Judge, I've deliberated, and I believe I have a reasonable doubt that is a reasonable doubt, and there's no one, not even the judge, can interfere with the sanctity of that decision by a juror. Now, if a juror is saying, I refuse to deliberate, I'm voting not guilty.

VAN SUSTEREN: What if the person says, I've made up my mind? That's my vote. That's a hung jury?

GRIMM: Greta, excellent questions. I mean, these are all hair-splitting issues. And if someone says, I've made up my mind, there's nobody that can change it, has that person engaged in the deliberative process? It is very dangerous, as Jim says, for a judge to invade sort of the sanctity of the jury process.

VAN SUSTEREN: Ted?

TED WILLIAMS, CRIMINAL DEFENSE ATTORNEY: Bernie and Jim are accurate, as well as...

VAN SUSTEREN: How about Jeanine?

(CROSSTALK)

PIRRO: Well, thanks!

HAMMER: She was pouting for a second!

PIRRO: Yes, I was!

(LAUGHTER)

PIRRO: Hey, by the way, we've got Jim here in New York, which is very nice, Greta. Now I feel like I'm on a 50/50 balance, a level playing field.

WILLIAMS: Well, I'm glad y'all are having a partnership out there.

(LAUGHTER)

WILLIAMS: Listen, the fact about it is, if the juror has made up his mind — he has a right to make up his mind, as long as he's a part of the deliberative process. And I think in this instance, if this juror was kicked off because he had decided, I'm going to hang this jury, but he had made his mind up, he had listened to the evidence — and by the way, juror No. 5 took many notes, I mean, copious notes in this case. So I think he was the most analytical, and I thought if anybody was going to hang the jury, it would have been him.

VAN SUSTEREN: Jeanine, what about the boat demonstration — I don't know what to call it — where the two jurors got into the boat in front of the judge during the deliberations and rocked back and forth?

PIRRO: You know what, Greta? I don't get excited about that. Look, the judge did everything in his power. He said there are not to be any experimentations. The fact is, two people got on that boat and shifted it back and forth. Now, when you handle exhibits that are in evidence, you have the right to pick it up, to feel it, to touch it. And in a sense, they had the right to do that with the boat.

I don't know who decides what an experiment is or at what point you decide that it's an experiment. I don't think that's the basis.

WILLIAMS: But Jeanine...

PIRRO: Yes, Ted?

WILLIAMS: But Jeanine, I'm sorry, I have to wholeheartedly disagree with you.

PIRRO: It's OK.

(LAUGHTER)

VAN SUSTEREN: I think she'll live through this, Ted.

(LAUGHTER)

WILLIAMS: No. 1, the judge was actually there, from what we understand. And if two people got in that boat and they rocked it — why were they rocking that boat? They wanted to try to emphasize as to whether a body or Laci Peterson could have been tipped overboard...

(CROSSTALK)

PIRRO: Whether it would tip. No question.

WILLIAMS: So that had to be considered an experiment, and I think it's going to be an appellate issue.

PIRRO: Wait a minute! Ted, you know what an experiment is? An experiment is when one the jurors gets on there and another one stands on the side and tries to throw the one off. Just standing on it, balancing the boat, they want to get a sense for how solid it is.

WILLIAMS: I disagree.

VAN SUSTEREN: Jim?

HAMMER: Unfortunately — I wish I was as confident as Judge Pirro sitting next to me...

(LAUGHTER)

HAMMER: But these are really dangerous things on appeal, and convictions have been overturned, Greta, for looking up a word in the dictionary. Now, if a conviction can be overturned for that, then how about jumping around in a boat? I don't know what's going to happen, but it's a problem on appeal.

VAN SUSTEREN: And I actually thought when the judge described it, he said he didn't know the jurors were going to get in the boat and jump up and down. I thought he looked a little piqued...

(LAUGHTER)

VAN SUSTEREN: But that was me reading faces, which, of course, I have no expertise in.

(COMMERCIAL BREAK)

VAN SUSTEREN: We're back with more on the Scott Peterson guilty verdict and a surprising story involving juror No. 5. Justin Falconer joins us tonight from Kansas City.

Justin, we're hearing tonight that you claim that you have been intimidated, or at least, you were while you were serving as a juror and left the panel. What happened?

JUSTIN FALCONER, DISMISSED PETERSON JUROR: Well, when I first got out, I started getting a lot of negative attention, which, you know, obviously was reported on television. It died down a little bit. But then towards the end of case, as the defense started to get ready to put their case on, it started to get a lot more. I started getting more and more, and then people started actually showing up to my house.

VAN SUSTEREN: OK, let's talk about that. What happened when people showed up at your house?

FALCONER: Well, somebody jumped up on my balcony and took my picture through my window at, like, 3:00 in the morning. And you know, then there was other people. There were sightings around my house, people showing up, asking where I lived. And so my security at the complex was told, you know, to try to keep an eye out, but it just got to the point where they broke into my car and they vandalized my car. They didn't steel anything, just tore it up, dumped oil all over it and put Scott Peterson pictures on it from the newspaper.

So I mean, I just got to the point where I just said, You know what? I can't be doing this. If this verdict comes back, you know, they're going to come after me. Plus, a letter said that, you know, Hey, if he's not guilty, it's your fault, blah, blah, blah. So it got to the point that I said, you know, OK, wait. There's a problem here, and I need to get out for my own safety.

VAN SUSTEREN: Did you report this to the police?

FALCONER: You know what? I did, the beginning of it. I told them about the letters and everything, but the police didn't seem very interested. So I kind of took it as I needed to protect myself and told the security around my complex, bought a pit bull. You know, so, I mean, that's what I did. And then finally, it just got to the point where I didn't want to deal with it anymore, and I took off.

VAN SUSTEREN: Justin, the press pursued you like crazy. I'm sure that they were asking questions around the complex. Can you discriminate that this was not the press — I don't think the press vandalized your car, but is there a way to discriminate between the press dogging you and what you might consider to be, you know, some vandalism or threatening gesture from people or harassment?

FALCONER: Yes, well, the press has been really good because I've been talking to everybody, and I have a pretty open relationship with everybody, you know? So if they want to ask me something, they can call me. And I've never had a problem with them before. I mean, all the way down to The Enquirer, nobody's harassed me at home. So I have no reason to believe that it's press, just because they can get a hold of me any time they want.

VAN SUSTEREN: Have you heard that any of the other jurors have gotten this while they're serving on the panel?

FALCONER: Yes. Yes. When I was there, you know, when it first came out about me speaking to Brent, there were people on the panel that were approached outside the jury house. You know, there's one person who's still on the jury who, you know, was approached and said, Hey, is that "MF" off the jury yet? You need to get him booted off, blah, blah, blah. And she actually defended me to this person, and then, you know, was telling us about it in the jury room. So I know for a fact that, you know, the other jurors are approached and people have been talking to them.

And that's why when I heard the reports that, you know, Gregory Jackson felt like people were more interested in the public opinion, it really struck home with me because I know for a fact that they were worried about public opinion because they were out in the public every day. When they would go to work, when they would come home, do things like that, you know, that was their dosage of it, and either somebody would walk up to them and say something...

VAN SUSTEREN: A quick question, Justin. Was that incident you just spoke about reported to Judge Delucchi?

FALCONER: I believe it was. Yes, I'm pretty sure it was. I know the bailiffs knew about it because everybody was talking about it in a joking manner. There was a lot of pet names I was going by, at that point, because people were referring to me as, you know, some of the derogatory names, so everybody was joking around about it. And you know, we did talk about it before I was dismissed.

VAN SUSTEREN: All right, Justin, thank you very much.

Does this new information prove that the jury needs to be yanked from deciding whether Scott Peterson lives or dies? Our legal panel is back. Bernie?

GRIMM: You know, interesting, because when I was reading tonight about the fact that Mark Geragos was going to move for a change of venue and for a brand-new jury because of juror misconduct, I was figuring he's out on both counts. But now that I get this sort of fascinating revelation from Justin that jurors were intimidated — certainly, he was intimidated — and then it got...

VAN SUSTEREN: But it sounds like he was intimidated almost after the fact, though, which is a big difference if you're off the jury. I mean it's not nice, but I mean on the jury deliberating versus off the jury — big difference.

GRIMM: Right. He's no longer deciding the fate of Scott. But Justin seemed to say it was discussed amongst the jurors that he was getting intimidated, and he thinks that it carried over into the jury that ended up deciding Scott's fate. So if they were intimidated or scared or coerced into that verdict, that's certainly an issue on appeal, if Geragos can prove it.

VAN SUSTEREN: Jim, my antenna went up when he said that they had a discussion in the jury room.

HAMMER: Exactly.

VAN SUSTEREN: But then it only becomes a problem if someone didn't tell Judge Delucchi and he didn't investigate to make sure that the jury wasn't poisoned.

HAMMER: Greta, it could still be a problem. We've talked about the appeal coming down the road, but what's going to happen before that is a motion for new trial. Before Scott Peterson is sentenced but after this next penalty phase, Geragos will lay out every reason that the first verdict was invalid, in his opinion. And if he can put it in an affidavit with these kind of statements from Falconer, it doesn't just endanger the penalty phase, I say could because we don't know if it's true — undo the conviction that just happened. That's why this is a very dangerous time for the DA.

I got to tell you, Geragos has to probably double his antidepressants every day he sees Justin Falconer because this was a built-in hung jury if Falconer had stayed on that trial.

VAN SUSTEREN: But Jeanine — and correct me if I'm wrong — the minute he said that there was a discussion in the jury room, I thought, Uh-oh. You know, There's a real serious situation. But then he said Judge Delucchi knew about it. I assume, and don't know, that he would have brought the lawyers in, discussed it, and then had a conversation with the jury to see if there's a problem. That's routine. Then there's no problem if Geragos has acquiesced to the situation, right?

PIRRO: Right. Look, this is a very competent judge. I think everyone on the panel agrees this is a judge who's going to have a solid record. He wouldn't let this case go forward without that.

But I have to tell you, Greta, you know, as I sit here listening to Justin Falconer, I say to myself, You know what? He kind of went with the flow, as we discussed this case. He was very opinionated in the beginning, saying, Well, I can understand how I guy wouldn't know if he went fishing or golfing on the day his wife disappeared, and all pregnant women are crazy.

(LAUGHTER)

PIRRO: Jim, stop laughing. At some point, when you put your head above the crowd and you form an opinion, then people are going to start criticizing you. And it almost seems like he wants to undercut this verdict. And I'm just curious as to how much of what he is saying is either absolutely accurate or hasn't already been discussed with the judge.

VAN SUSTEREN: But let's assume for the sake of argument that he's telling us the absolute truth and he was harassed. But if it occurred after he was no longer on the panel, while it may be obnoxious or wrong or even people agree with it...

HAMMER: Not a problem.

(CROSSTALK)

PIRRO: It doesn't affect the verdict.

VAN SUSTEREN: It's only if it's while he's serving on panel.

PIRRO: And it does not affect the verdict.

VAN SUSTEREN: Right.

WILLIAMS: Yes, but as I look at it, if there's any kind of semblance of jury intimidation at any aspect of this case, it could have floated, Bernie just said, even into that jury room, into the deliberations. If jurors felt that Justin was being mistreated and now they're deliberating, they themselves could very well have some feelings about that.

VAN SUSTEREN: But that brings me back to my original point, is that if the judge investigated that and if there's a strong record to suggest that there was no problem, that's not going to haunt the prosecution in the court of appeals.

WILLIAMS: You're probably right, Greta. But I guarantee you, Mark Geragos listens to our show. And by the way, I'm going to go here again. I'm going to give you a compliment. And don't go there.

(LAUGHTER)

WILLIAMS: But you got something the other night, as it pertains to how the child was born or when the child was born, and you did a good job with Justin tonight. We found some information out tonight for the first time about jury intimidation, as far as I'm concerned, about Justin, and we didn't know that before this.

VAN SUSTEREN: Ted, before we go to break, can you come back tomorrow night?

(LAUGHTER)

HAMMER: Do you want to guest host, Ted?

VAN SUSTEREN: Can you co-host with me, Ted?

(LAUGHTER)

GRIMM: Greta, can I get a raise, too, like Ted? Oh, my God, it's disgusting in here!

PIRRO: You know what? I'll settle for another person in the room!

(LAUGHTER)

VAN SUSTEREN: All right, panel, as always, thank you.

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