This is a rush transcript from "On the Record," June 17, 2011. This copy may not be in its final form and may be updated.
MARTHA MACCALLUM, "ON THE RECORD" GUEST HOST: Casey Anthony's defense team was little bit red in the face tonight about a last-minute surprise addition to the witness stand -- or the witness list, I should say, that basically backfired on them today. He is convicted kidnapper -- Vasco Thompson is this man's name. He shocked everybody today outside the courtroom and made the defense team, in his words, look like liars.
(BEGIN VIDEO CLIP)
VASCO THOMPSON, ON CASEY ANTHONY DEFENSE WITNESS LIST: I have no idea who George Anthony is. I just met him -- seen him on TV. I never talked to George Anthony. I never -- like I say, I never -- I never -- I don't know him. And the phone number they got in question, I didn't have that phone number until February of '09. And I don't know why they got me involved in all this -- this mess.
(END VIDEO CLIP)
MACCALLUM: All right. Well, they were hoping this man might throw some doubt into jurors' minds. So what does this mean next for the defense? Our legal panel is back. Joining us now, San Francisco assistant D.A. Jim Hammer, Orlando attorney Diana Tennis, and criminal defense attorneys Bernie Grimm and Ted Williams. Ted represents Brandon Sparks in this case. He's the son of the man that found Caylee's remains.
Welcome, everybody. Good to have you here. Jim, you know, since we just watched this gentleman talking outside the courtroom, explain to us what the nature is of this possible defense witness to begin with? Why are we even hearing about him today?
JIM HAMMER, FORMER SAN FRANCISCO ASSISTANT DISTRICT ATTORNEY: Well, when you look at the defense filings, apparently, they told the court that he was connected to the father of Casey because the cell phone records matched up four times. He said in his press conference today that he didn't get that number until months after the murder. So either the defense totally blew this and have a guy who didn't even have the phone at the time and it's somebody else they're looking for, or something else.
But what it looks like is desperation. From the jury's eyes, they're just throwing people on the witness list. And believe me, the jury is watching this guy. They're not supposed to. They're watching him on TV and thinking, What the hell's up with the defense, right now.
MACCALLUM: But he is -- just staying with you, Jim for a second -- I mean, he's a convicted kidnapper...
MACCALLUM: ... a con -- you know, former felon -- or felon. And you know, I guess if it throws some kind of doubt into some juror's mind, and they say...
HAMMER: And that's...
MACCALLUM: ... Well, why would he ever be -- you know, Why would he call this guy? Maybe this guy's lying. Does he have a lot of credibility?
HAMMER: I think you're right, but again, I think most jurors have a lot of common sense. And they already have the defense getting up, saying, It was the grandfather, it drowned, he molested, you know, Casey and all the rest of it. I think most jurors are very skeptical of this kind of stuff, and I think most people will think, What are they trying to do, pin it, maybe because he's black, because he's a felon? I think it's pretty disgusting, and I think a lot of jurors will turn against it.
MACCALLUM: Yes, they'll see right through it. Diana, what's your take on this -- on Vasco?
DIANA TENNIS, ORLANDO DEFENSE ATTORNEY: Well, I'm standing here across the street from the Orlando courthouse. I don't know what embarrasses me more, the press conference for Vasco Da Gama or the brawl that took place this morning.
I don't think that the defense did this on purpose. The jury is sequestered. They're not seeing any of this. They don't know that this person was put on the witness list. They don't know that this person gave a press release today.
I think it honestly was probably they looked through these records a little late in the game. Somebody did an Internet search and found out that this guy was connected to this phone number. Unfortunately, they haven't figured out yet that not for, like, a year after the important timeframe. I'm betting they're going to drop this as quickly as they've picked it up.
MACCALLUM: Yes, and I think it was Ted -- I think you mentioned in the earlier notes that, basically, they put everybody on the list that they might potentially want to draw, and maybe they hadn't dug that deep into this whole man's story. But if they hadn't put him on the list, they wouldn't have been able to ever bring him in if they decided it was going to be relevant.
TED WILLIAMS, CRIMINAL DEFENSE ATTORNEY: Yes, you know, that could have been a possibility. What normally happens is you have defense investigators who will go out and they will conduct an investigation. They'll come up with names that may very well be associated with the Anthony case.
Now, there'll come a time that the court requires a list of who is going to be called by the defendant. Well, in this case, this guy was put on the list. But I just think that he's just a victim of circumstance. I don't think that the defense have any reason, nor will they actually call this guy. But if they didn't put him on the list and then they tried to call him, they could very well have been precluded from calling him, if they believed they had some reason to call him.
MACCALLUM: All right, Bernie, let's start with you on this subject that Dr. Baden and I were talking about. He was going through all of the forensic side of this argument, whether or not there was ever a body in that trunk. But talk to me about how -- you know, why that matters. I mean, the little girl is dead. Somebody killed her. You know, in terms of what we learned today about how all that happened and transpired, where are we?
BERNIE GRIMM, CRIMINAL DEFENSE ATTORNEY: Right. I mean, I guess your point is, and it's well taken, that the child is dead. There's no doubt about that. So in the interim, where does it really matter where the child was for that 31 days?
It matters because this is the state's theory. The state believes this child was placed in the trunk of this car with duct tape on her mouth, possibly with chloroform, as well, and that it was probably done by her mother. So the defense's job, of course, is to destroy that theory to the extent they can. Michael Baden, though, hit it right on the head. I mean, you have decomposition fluid. How in the world -- you're talking about kids out of law school know how to do this stuff. Both the defense and the state should be ashamed that this wasn't done. I mean, to me, that just doesn't make any sense.
MACCALLUM: Yes, Jim, you know, with regard to what we learned today and this discussion about whether or not there was ever a body in the back of the trunk -- how potentially damaging was this for the prosecution?
HAMMER: Well, again, the one thing that's never going to go away, and it sticks with me and I'm not even in the trial, is witnesses, lay people testifying that they had the smell of death. I've, as a former cop and a DA, a homicide prosecutor...
HAMMER: ... walked into houses and seen a dead body and smelled it, and I will never forget the smell. So I think that testimony's powerful.
What's most shocking is what Bernie just said, though. You know, the defense just does the defense side, but the DA has to find the truth, Martha. Right now, that DA ought to be ordering every bit of fluid that they think is related to the body tested. Because you know what? If it's not Casey Anthony, they ought to tell the jury that. And if it is, it'll sink Casey Anthony. They have an obligation ethically right now to test all that stuff, if they haven't done it.
MACCALLUM: And can they, Diana? Can they do it now?
TENNIS: Well, I don't think they can do it now in the middle of the trial and have any credibility whatsoever. I mean, the reality is, we don't know what these jurors are thinking. Going into today's testimony, I, frankly -- and I'm about as defense-oriented as it gets -- I was thinking they have proved that body is in that trunk. I believe those professional noses.
But man, listening today, I was, like, You know what? I have a question mark. Is it a reasonable doubt question mark? I don't know. I still trust those noses. But if those jurors are, like, You know what? You gave us forensics that turns out to be kind of sounding questionable state, and I don't know what those noses smelled because I can't smell it myself, I don't know. I'm not sure if they did enough to take that body out of the trunk.
From the beginning, I've said, defense, why not leave the body in the trunk for five days? Man, that fits so great with your theory of she checked out. But this is the route they're going, and they're doing their best.
MACCALLUM: I go back to this, Bernie. You know, in terms of what matters really about where the body was -- you narrow down the timeline. You look at the last time that Casey was seen -- that Caylee was seen. You know that -- when the body was found. You know, in terms of DNA evidence and blocking all of this out, you know, whether she was in the trunk for one day or two days, and perhaps, as Dr. Baden said, there wasn't the potential for that kind of DNA evidence that existed in that trunk, given the fact that the body was wrapped in a blanket and double bagged in garbage bags -- you know -- you know, I'm not sure how relevant it is in terms of where it was placed at the time.
GRIMM: You're right. You're 100 percent right. And the prosecution might say in closing, Well, it doesn't matter. Is the defense actually claiming that she's not dead, that we didn't find her remains? So we know she was murdered. And our theory is that she was in this trunk.
Then if you can't prove it, why in the world did you open on it? Why did you put all these silly witnesses up there that can testify to things that's really nothing short of voodoo science? So my thing -- I agree with you in principle. The child's dead. It's a homicide. But the state went the extra yard and said, We guarantee you and we're going to prove that the child was in the trunk.
It may not matter. The jury might come to the same conclusion you did and just say, You know what? The child's dead. Mom certainly had something to do with it. It doesn't matter to me one way or another if the child was in the trunk.
MACCALLUM: Yes. And...
MACCALLUM: Go ahead. Quickly, if you can.
WILLIAMS: Yes. One of the big question marks is whether Casey Anthony is going to take the stand in this case. And just by virtue of what Bernie said, I believe that the prosecution has over-tried this case, that this case is going to come back on appeal. And if it is going to come back on appeal, I would definitely not put Casey Anthony on the stand and lock her into testimony at this time.
MACCALLUM: We got to go, guys. Thank you very much. Great panel.
HAMMER: Thanks, Martha.
MACCALLUM: Interesting day in court today. And more on that to come, of course.