Possible Reasons for Peterson Trial Delay

This is a partial transcript from "On the Record" with Greta Van Susteren, August 18, 2004, that has been edited for clarity.

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GRETA VAN SUSTEREN, HOST: In San Francisco is former assistant DA Jim Hammer. In Washington, defense attorney and former homicide detective Ted Williams. In Miami, defense attorney Jayne Weintraub. And here in New York with me is Westchester County district attorney and former Westchester County judge Jeanine Pirro.

Jim, when I practiced law, it was very rare that you got these breaks. There was something important I needed extra time, the judge would say, That's why you have law partners. Let your law partner do that. Call your witness. Let's get rolling.

JIM HAMMER, FORMER ASST. SAN FRANCISCO DA: Exactly.

VAN SUSTEREN: What is going on?

HAMMER: You know, I don't know. The phrase the judge used in court, Greta, was "a potential development that needed checking out." I used my small legal brain and I can only imagine three sources this information could have come from. Either the defense’s own private investigators, by why this morning, why so late? Mark Geragos' brother, by the way, took a morning flight to come watch Mark do cross-examination, so it must have been very late.

Secondly, it could have been from the DA, something late. But again, why so late? They have had a history of late discovery in this case. And the third is possibly a tipster called in, having watched Amber for the past couple of days, knowing she was going to be cross-examined and perhaps somebody called in and said, “You should check this out.”

So it's something very recent that needs a few days to check out. I've got to think it was a defense request. The DA wouldn't get a delay, at this point, granted, I don't think. And it's something that has to be checked out, but I think they want to somehow try to attack Amber Frey. That's all I can figure out, Greta.

VAN SUSTEREN: You know, Jeanine, it doesn't sound to me like a discovery problem because the judge would have yelled at the DA.

JEANINE PIRRO, DISTRICT ATTORNEY, WESTCHESTER COUNTY, NY: Right.

VAN SUSTEREN: At this point, the judge has lost his temper with discovery. I know we're all trying to figure out what this is, but it is extraordinary, taking three days off. They got a jury sitting there.

PIRRO: Well, it's extraordinary for several reasons. No. 1 is you've got the prosecution on a role, with their strongest witness. Now there's this lull, this delay. It's not fair to the witness because enough of her life has been in upheaval because of this case. But also, the jury is sitting there wondering. And as a judge, I never wanted a jury to try to say, “Well, it's probably the prosecution or the defense.” You simply go out there and say, “It's not attributable to either side.” This is court business that has to be done or laws that have to be followed.

But you know, Greta, what sometimes we forget in this case is that this is a death penalty case. And so we're not just talking about due process, we're talking about super-due process. So if Geragos did ask for a delay or if the prosecution did, the judge is going to make sure that that record is protected and that the defense attorneys, if it is them — and I think it's them — get the time that they need to look into whatever it is they need to.

VAN SUSTEREN: But I mean, Jayne, even the term "potential development" — that's the judge's term — and Jeanine raised a question about what the judge tells the jury — but using those words for some reason to me, if I were on the jury — I mean, I'm wondering — I'm not even on the jury now, and I'm sort of, like, What's going on? What's happening?

JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY: Right.

VAN SUSTEREN: It must be something big.

WEINTRAUB: Well, I happen to disagree with Jeanine. And what I think it is, Greta, is I speculate that Mark was going to play tapes through cross-examination that had not been previously played by the prosecutor. I would suppose that, since the judge yesterday had limited the scope of cross-examination of Amber and either in relationships or — there's something that Mark wants to delve into.

See, I look at it from Mark's point of view and I'm sure, from Mark's point of view, he was ready to go and I'm sure he was very frustrated. Not only did he have the computer screen up and ready this morning to start his cross-examination, his brother flew in to watch it. So I think that Mark did not cause the delay.

VAN SUSTEREN: I think Jeanine's right. I think...

WEINTRAUB: I think prosecutors are objecting...

VAN SUSTEREN: ... it sounds like...

WEINTRAUB: ... to something that Mark wants to do.

VAN SUSTEREN: Actually, you know, it's funny. I actually — it sounds like a defense request because the prosecution is finished, has now sat down, saying, We're done with this witness. Your turn.

HAMMER: And it's their witness, Greta.

VAN SUSTEREN: It's the defense witness.

HAMMER: It's their witness and — it's the prosecution's witness. And in California...

VAN SUSTEREN: But turned over to the defense.

HAMMER: ... the DA stands up and says, “I'd like a few days, Judge, before my witness gets attacked by the defense,” the judges are going to say, “Tough luck. It's your witness. Let's go.”

PIRRO: And by the way, there's no question but that the defense is in possession and has had all these tapes from day one, so why the delay? I mean, it just makes no sense.

HAMMER: That's why I don't think it's the tapes.

VAN SUSTEREN: Let me find out what Ted thinks.

WEINTRAUB: ...the prosecutor's trying to stop them.

VAN SUSTEREN: Ted, you want to take a stab at this?

TED WILLIAMS, CRIMINAL DEFENSE ATTORNEY: Yes. You know, listen, in theNational Football League, when a three-pointer is about to be made to win a game, you always call a delay to rattle the other person. And in this instance, it may very well be that Geragos came up on something that could very be well considered a discovery abuse. And as a result of that, maybe he also wants to rattle Amber Frey before he puts her on and do his cross-examination of her.

VAN SUSTEREN: But the thing is, I remember when I was doing cross-examination — it's been a little while — but I was always eager to get started, especially if I had something.

HAMMER: Exactly.

VAN SUSTEREN: I don't know that Mark Geragos has anything, but I wanted to get going.

PIRRO: Oh, you just...

WILLIAMS: But Greta, you just said something I wholeheartedly agree with. Hey, listen, this is the time — if I was Mark Geragos, I wouldn't even do a cross-examination.

VAN SUSTEREN: Me, either. Me, either.

WILLIAMS: This woman has not hurt Mark Geragos.

VAN SUSTEREN: I would embrace her and say, “Look, you know, she has not hurt my client.” I'd say, No questions.

WILLIAMS: Thank you.

PIRRO: But can he do that? Is Mark Geragos capable of doing that?

VAN SUSTEREN: Not many defense lawyers can resist it...

WEINTRAUB: No good lawyer in a death penalty case is capable of doing that.

VAN SUSTEREN: But sometimes it's the right thing to do, Jayne. I don't know that...

WEINTRAUB: Not with a critical witness that the prosecutors put up there as their motive.

HAMMER: But 99 percent of the evidence is...

WEINTRAUB: Absolutely not.

HAMMER: ... the tapes.

WEINTRAUB: I've never heard of it.

HAMMER: But 99 percent...

ALLRED: Greta...

HAMMER: ... of the evidence is the tapes. How do you call...

VAN SUSTEREN: She hasn't even testified.

HAMMER: ... the tapes liars?

PIRRO: Is he going to cross-examination his own client? It's his client's tapes that are relevant here, that are really incriminating...

HAMMER: Exactly.

PIRRO: ...here.

WEINTRAUB: Jeanine, there are other tapes we haven't heard of. Maybe there are more tapes...

PIRRO: ...to present them.

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