This is a partial transcript from "On the Record," May 15, 2006, that has been edited for clarity.
GRETA VAN SUSTEREN, HOST: The lawyer for indicted Duke lacrosse player David Evans said there is no way his client could have committed this rape.
(BEGIN VIDEO CLIP)
JOE CHESHIRE, ATTORNEY FOR DAVID EVANS: It is true that this false accuser pointed Dave Evans out with 90 percent certainty as being the person that attacked her. She then was asked if she was sure and she said, "Well, if he had the moustache that he was wearing the night of the attack, I would be 100 percent sure."
Mr. Nifong knows that David Evans has never had a moustache. We have pictures of David Evans from the day before, the day after, and almost every other day along with scores and scores of people's testimony to indicate that he never had a moustache.
(END VIDEO CLIP)
VAN SUSTEREN: Let's bring in the legal panel. Joining us from Miami is former San Francisco Assistant D.A. Jim Hammer; in New York former Westchester County D.A. Jeanine Pirro; and in Washington, criminal defense attorneys Bernie Grimm and Ted Williams.
Jeanine, would you have turned down a polygraph offer by this young man?
JEANINE PIRRO, FORMER WESTCHESTER COUNTY D.A.: You know, the polygraph results are not admissible in court but I got to tell you I am totally perplexed by the D.A. in this case and his refusal to either meet with Evans here or to discuss this with his attorney.
And, taking the, you know, having him take a polygraph would do nothing but help me out because if he failed it, then I would have something to use against him to leverage a plea and, if he passed it, I'd say it's not admissible anyway. But what bothers me is the refusal of the D.A. to connect with this kid.
And I have to tell you, Greta, I have seen a lot of defendants in 30 years as a prosecutor, a judge, and the D.A. This kid was compelling. This kid told a story that if anyone listened to it is a story of what appears to be someone who had nothing to hide, who wasn't worried.
He talked to the police without counsel. He gave them his e-mail. He gave them all of the information that he had about himself. He tried to assist the police. He was involved in a photo array selecting people who were there. This is incredible. You know the D.A. better have some smoking gun somewhere.
VAN SUSTEREN: You know, Bernie, this statement that Jeanine calls compelling, I mean that's essentially, that's the person the jury is going to see on the witness stand. They're going to hear the same version. They're going to see the same demeanor. If you got a prosecutor, like Jeanine, saying he's compelling and she's a skeptic what do you think?
BERNIE GRIMM, CRIMINAL DEFENSE ATTORNEY: This kid spells reasonable doubt. If you put his name in a jumble, it would come out as reasonable doubt.
VAN SUSTEREN: How about innocence? I mean reasonable doubt is one thing. How about innocence?
GRIMM: Well, I mean he's actually innocent is my impression but I wasn't in the bathroom. But he was sincere but he was angry. He was indignant but he was measured about the whole thing. As trial lawyer, anybody watching this show would call this kid to the stand seven days a week and twice on Sunday.
I mean this is what the case is. Where is it? Where is it? Are you going to be able to manufacture this? He has no moustache. What the hell is going on in this case?
VAN SUSTEREN: Jim, why not talk to him? Why wouldn't the prosecutor? What's your theory of why the prosecutor wouldn't talk to him? Or, is the kid lying?
JIM HAMMER, FORMER SAN FRANCISCO ASSISTANT D.A.: Well, listen, I don't know if he's lying or not. I agree with everybody so far. I think he's compelling. But I'll tell you it's not just stupid. I think it borders on unethical for a prosecutor not to listen to a defendant before walking into a grand jury.
D.A.'s have so much power, Greta, in front of the grand jury because there's not a defense attorney. There's not a judge in that room and to have a potential defendant come to you and say, "I've got a story I want to tell," I think you're ethically obligated to listen to him, not just to maybe bolster your case because maybe you have an innocent guy here.
And, I'll tell you the D.A. both missed a big opportunity and I think again missed the mark on not listening to the story. If he knew about the photos, by the way, and didn't put them in the grand jury that indictment should be thrown out because the D.A. has an obligation to put on exonerating information to that grand jury — Greta.
VAN SUSTEREN: Ted?
TED WILLIAMS, CRIMINAL DEFENSE ATTORNEY: Well, I thought he was also compelling but I also felt that he was well rehearsed. He used the words like exculpatory evidence. Normal people don't use that. Normally you'll find that coming from lawyers.
VAN SUSTEREN: Yes, but this is Duke. This is Duke. We didn't at the University of Wisconsin but maybe at Duke they do, Ted.
WILLIAMS: Well, yes, I realize that but, you know, I have to agree with most of the panelists here. Nifong has to have an ace in the hole. The physical evidence is certainly going against him. It would not surprise me if we find down the road that he's turned one of these Duke players but he better have an ace in the hole.
PIRRO: Ted, you know what doesn't make sense to me somebody could certainly...
VAN SUSTEREN: Jeanine, hold one second. Jeanine, hold one second. I'll come right back to you. We got to take a quick break. Stand by. We're going to have much more.
(COMMERCIAL BREAK)
VAN SUSTEREN: Let's bring back the legal panel. Jeanine, I said I'd come right back to you so take it away.
PIRRO: You know, Ted was saying that there's a possibility that this statement was rehearsed and, of course, I felt that it was compelling. But you know what, Ted, I'm a skeptic as you are and that may be the case but I got to tell you far and before this statement this kid voluntarily agreed to talk to police without counsel.
He helped the police in picking photos from people in the lacrosse team. He voluntarily gave his DNA. He gave his e-mail. He also assisted the police in the collection of evidence. Does this sound like someone who's got something to hide?
WILLIAMS: No.
PIRRO: And whether or not he uses the word exculpatory is irrelevant. The kid is as we said a Duke graduate plus he's been watching this for the last month with two of his teammates.
WILLIAMS: Jeanine, it doesn't sound like he has anything to hide. But, on the other hand, I'm one of those people who is taking a wait and see attitude. And one of the things I want to see is something that Greta has said night after night and that is what is in those medical records and was there some kind of a date rape drug that could very well have been used that would have made her illusionary about even a moustache?
PIRRO: There's no question about that. That may be relevant. But you know what if she was penetrated orally, anally and vaginally why is the only DNA the DNA of her boyfriend? You know even if they used a condom and no one has even talked about that there would be something, hair, fiber, some kind of skin, anything. There's nothing. This doesn't make sense. And, the DNA on the fingernail is supposedly on top of the fingernail.
VAN SUSTEREN: And the wait and see attitude, Bernie, the thing that bothers me is that, you know, I'm all in favor of the wait and see attitude and being fair to the accuser but the wait and see attitude puts these three young men waiting for a trial until next spring, which to me is obscene to have these charges and not just for these three but anybody who has to wait around. What about that? Why not at least give them their day in court? I mean the prosecutor wouldn't talk to him.
GRIMM: Yes, I mean it's ironic. Yesterday, I went to the Georgetown-Army [sic] game which is the first round of the NCAA championships in lacrosse. Duke went to the final game last year and ended up being runner-up. They were hands on favorite to go right back to that game again. And here it is the NCAA championships. These kids are all home.
Three of the kids' lives are ruined, not to mention we haven't even mentioned that out of the 46 photographs this woman looked at she didn't pick out three people that assaulted her. She picked out four people that assaulted her. Where is this fourth person? Maybe I ought to keep my mouth shut because I guess Nifong will have him indicted tomorrow.
VAN SUSTEREN: Jim, so what happens Jim? I mean these three guys have to wait for their trial and labor under this?
HAMMER: Listen, I think it's absolutely outrageous. We had that North Carolina lawyer on the program here, Greta, defending their system. It's indefensible that if both the D.A. has an interest in order to get the victim into court early so she's not dissuaded from this case, I should say the accuser, and the defendants have a right now since they didn't get to put on evidence at the grand jury to have a fair trial, they ought to have a trial fast.
And one last thing, Greta, this 90 percent certainly about this photo lineup. It's 90 percent except for the moustache which makes 90 percent zero. She got the wrong guy if that's what in fact she said at the time of the identification. That means zero.
VAN SUSTEREN: All right, panel thank you.
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