Taking Shots at Geragos

Dear Viewers,

Thursday night Ken Gross — a lawyer who knows election law inside and out — was on our show.

Why did we book Ken? I don't know if you recall, but four years ago Ken was on the air more than any six news anchors! At my former network Ken helped unravel and decipher the legal mess that descended upon us in Florida the day after the election. At the time, I didn't know much about election law and had no idea how complicated it could be. I loved being on the air with Ken four years ago because he can explain the law in a very easy manner — so we have "drafted" him to help us this election. He is going to be on the set with me in New York on November 2. While I think everyone in the nation is hopeful there will be no legal mess to decipher, if there is, we will be ready to explain it.
 
Last night one of my guests — again — took some "personal shots" at Mark Geragos (search). I also receive lots of mail criticizing Geragos in a personal manner. I don't want to be in the position of having to defend Geragos since I think that an odd position for an anchor, but I also don't want to look the other way when I think something is unfair or personal shots are taken. I hope the Geragos critics know this, if not, I will remind them: (1) The U.S. Constitution (search) demands, not asks that Geragos aggressively represent his client; (2) Geragos is not the one accused of the crime.

The guest who is critical of Geragos continuously brings up the fact that Geragos represented Winona Ryder (search) in her shoplifting case and she was convicted. Yes, this is true. What is also true is that Ryder was caught on videotape shoplifting!

The guest further criticized that Geragos did not plead Ryder to a lesser crime (misdemeanor), but, likewise, that is an unfair criticism. Often, (and very often), a lawyer advises a client to plead to a lesser crime and the client refuses. A lawyer then has no choice but to go to trial with his client since only the accused can decide to accept a plea of guilty to a lesser or not. When a client insists on trial, even if a lawyer thinks that unwise (and what can be more unwise than when one is caught on tape!), a lawyer cannot later tell the truth about why the client went to trial since that would violate attorney client privilege. Hence the lawyer, in doing his job representing his or her client and in adhering to the attorney client privilege, looks like the goof. Okay, I assume this is now put to rest.

Now let me talk "strategy" which I think is fair game for discussion and criticism. I think Geragos and his client have walked themselves into a decision — that Peterson will have to take the witness stand. I realize that I am the only one suggesting this, but here is my thinking — yesterday's defense witness, from all accounts, was a nightmare for Peterson. The prosecutor effectively dismantled the witness before the jury. There were high praises for the prosecutor and how strong his cross-examination was. It is stunning that the defense witness was so poorly prepared or that he was called by the defense to bolster the defense.

The defense case is, in short, appearing to fall apart. Yes, it was only one day and one witness (much can change from day to day and witness to witness), but it was a key witness for the defense. The defense is now forced to confront the obvious: the jury must be wondering why Peterson does not stand up and walk 10 feet to the witness stand if he didn't murder his wife. Stay tuned...

As for the supposed video demonstration of a re-enactment of the prosecution theory, I differ with many on our show last night. A video IS admissible under certain evidentiary conditions. I think a video could be and should be shown to the jury if: (1) Scott's boat is used in the video (it is in police custody and could be released for this purpose); (2) the marine and weather conditions are substantially the same for the test as Dec. 24, (we know what they were since those conditions are recorded); (3) the video shows as many different ways a body could be thrown from a boat (front, back, sides, dragged etc.) and (4) the jury is told they can credit the demonstration or ignore it in their deliberations.

How important any evidence is, is always the jury's final determination. Also, the jury should be told of any slight changes in conditions (e.g. that it is not known exactly what was in the boat in terms of other weight or how different the weather or marine conditions were).

Do you have something you'd like to say to Greta? Please write to her at ontherecord@foxnews.com!

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