This is a partial transcript from On the Record with Greta Van Susteren, June 23, 2004 that has been edited for clarity.
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GRETA VAN SUSTEREN, HOST: Tonight: Juror 5, bounced from the Scott Peterson trial just hours ago, is here. He's going to go On the Record. He's going to join us live momentarily. But first, let's get the complete story about today's stunning turn of events from Fox's Claudia Cowan, who's in Redwood City, California -- Claudia.
CLAUDIA COWAN, FOX CORRESPONDENT : Well, Greta, it's maybe the biggest day yet for the prosecution in this case, as the judge bumps a juror who says is not convinced that accused double murderer Scott Peterson had done anything wrong. Now, just two days after saying that Justin Falconer could stay on this jury, the judge changed his mind, and we may never know why. But Falconer says it's because of this controversial exchange caught on tape last week. As he and Brent Rocha went through the metal detector, Falconer says he told Brent that they wouldn't be on the news that night. Some in the media claim he said something else. Either way, Falconer was soon outside the courthouse and talking to reporters.
Just like the defendant, the 28-year-old single father blames the media for turning him into a distraction. Falconer said he may write a book about his experience, even though he says he had trouble following the prosecution's case. He said, based on the testimony so far, he thinks Peterson treated Laci, quote, "wonderfully," even though he's certain, he says, an expectant mom can be a handful.
(BEGIN VIDEO CLIP)
JUSTIN FALCONER, DISMISSED PETERSON JUROR: You know, I -- I know this to be true. I got a kid myself. Pregnant women are crazy. And so, you know, they -- they one minute, one day, can be couch-ridden and not want to move. The very next day, they're up, thinking they're fat and want to go run a marathon.
(END VIDEO CLIP)
COWAN: Falconer's dismissal came as Scott's lawyer, Mark Geragos, began laying the groundwork for his defense theory that Modesto police rushed to judgment and conducted a sloppy investigation. He once again played a tape of Martha Stewart's cooking show from December 24, 2002, in which meringue is discussed. Now, that's the same day Peterson reported his wife missing, saying the last time he saw Laci, she was watching that program. But Brocchini, Al Brocchini, had said when he reviewed that day's show, there was no mention of meringue, which led him to believe Scott was lying. Today Detective Al Brocchini was forced to admit that he was wrong.
Hearing all of this testimony in place of juror No. 5 was alternate No. 1, a white man who is both a doctor and a lawyer -- Greta.
VAN SUSTEREN: Claudia, thank you.
Joining us in Redwood City is juror No. 5, Justin Falconer. Welcome, Justin.
FALCONER: Hi. Thanks for having me.
VAN SUSTEREN: Justin, prior to last Thursday, before you had the conversation, that very brief exchange with Brent Rocha, did you ever talk to anybody associated with the case?
FALCONER: Well, in general passing. I mean, it's a small courthouse, and so we see each other every single day. You pass each other in the hallway, in the elevators, in the bathrooms. We're eating lunch in the same places. So it's difficult not to see each other. It's difficult not to, you know, say -- you know, acknowledge each other being there. And you know, this wasn't the first time that, you know, Brent and I -- well, it wasn't necessarily me, but that I had been in the same shot as Brent. And -- it wasn't the first time, no.
VAN SUSTEREN: All right. Well, give me sort of a laundry list. Who have you had -- even exchanged pleasantries with, prior to Thursday, who's connected with the case?
FALCONER: Well, like I said, you see everybody. I mean, it's not -- it was never -- you know, you don't walk up and talk to them and say, Hey, how're you doing today? It's just a, you know, Good morning, Good afternoon, whatever, when you're, you know, walking past them or when you happen to see them or, you know, something like that. It's -- it was never a, you know, conversation or anything. But like I said, it's a small courthouse. It's a small, little place where we're at. And we're with them. We're with the same, you know, public as everybody else. And so it's very difficult not to see all the family, all the lawyers and -- you know, together and -- it's very difficult.
VAN SUSTEREN: All right, let's talk about Thursday. The exchange was caught on camera. Tell me exactly what happened.
FALCONER: Well, I -- we -- I had walked in the -- you know, courtroom -- or I walked through the security checkpoint, and you know, Brent was there. And I, you know, heard somebody say, Good morning. I turned, and it was -- you know, he was standing there. And there was a camera there. And I had just, you know, mentioned that I'm ruining the cameraman's shot. I guess you're not going to be on the news today. And he, you know, said, Good, or he -- I think he made a response, and then, you know, we laughed and walked away. And that's all it was. And after the judge looked at it and spoke to myself and Brent, you know, he decided that it was OK, that, you know, it was an innocent remark, and he let it go.
VAN SUSTEREN: All right, you've heard there's been some discussion in the media, or at least -- I don't know if you -- when you've heard it, but whether it was you talked about "news" or "lose." Are you 100 percent certain that the word was "news"?
FALCONER: Yes, I'm positive of what I said. You know, after it got out it was "lose," I had, you know, a few people, friends of mine call me up and tell me I was getting railed (ph) pretty good on the news for saying that. But it was "news," and it was never "lose." I had mentioned that because of the cameraman, so it was -- it was never "lose."
VAN SUSTEREN: And in fairness, the way the courtroom is set up -- I've been there -- as you walk through the security, and they've got one single pool camera facing everybody who comes in, right?
FALCONER: Well, yes, either one or two. I think I saw two at one time. And some photographers. So, yes, they're right when you walk through the front door. I think after that exchange, you know, they were sort of standing further back now. They're definitely not right up on the door, like they were before.
VAN SUSTEREN: All right. So Monday morning, you arrive for your jury service. And how did you -- how did -- tell me what happened.
FALCONER: Well, I mean, I walked in the front, you know, the door, and everybody had pretty much heard something about it. And so it was -- you know, I kind of guessed, you know, with all the attention that it was getting, that, you know, I was going to probably not be on the jury very much longer. But at the same time, you know, they spoke to me and they spoke to Brent, and he decided that it was OK. But you know, everybody pretty much had heard about it, and it was hard to walk into the courtroom past reporters and past people that you know, weren't talking about it, so -- you know, when I walked in there that day, I was kind of getting, you know, ribbed a little bit. But it was clearly a distraction, and you know, I understand why I'm sitting here right now.
VAN SUSTEREN: But Justin, I mean, if the judge said it was OK, and if the word is simply "news" -- and I've read the transcript because that's exactly what Brent Rocha said -- he said that it was -- the word was "news," it was not "lose" -- why did -- why did the judge boot you?
FALCONER: Well, I mean, it's a huge distraction. And I don't blame him. And I -- quite frankly, I -- you know, I -- everybody says, you know, Geragos is upset because I'm gone. I don't know if that's true or not because even on the defense, I wouldn't want a juror that's getting this much attention. And I have been getting a lot of attention. And so even today, when we walked outside, it was -- you know, I was being approached by cameras. And I was with other jurors. And so when you have that kind of a distraction, I don't blame the judge at all for wanting -- you know, for wanting to let me go because I wouldn't want me in that jury, either, at that point, you know, if I knew that I was getting -- that one of the jurors in my case was getting that much attention, just for, you know, safety's sake and just to make...
VAN SUSTEREN: Did any of the jurors say anything to you about this? Did they ask you about it?
FALCONER: Well, I'm not going to comment on other jurors and what other jurors said or are saying.
VAN SUSTEREN: Well, did they say anything to you?
FALCONER: It was clearly a distraction -- well, there were things said, and it was clearly a distraction. And I understand why I'm here. But yes, you know, it was very -- it was very difficult to avoid. And everybody pretty much -- once you walked into the courtroom, everybody saw it and everybody knew about it and, you know, everybody was kind of joking around about it, so it was...
VAN SUSTEREN: Let me switch gears for a second, Justin. You sat in the courtroom for a number of days with Scott Peterson about 15 feet away from you. What do you think about him? And what do you think about what he was going through?
FALCONER: Well, I mean -- you know, coming from the standpoint that he's an innocent man until proven guilty, you got to have -- you know, you kind of have to feel for the guy. You know, he's being accused of murdering his wife, and he's got all these people talking, you know, a lot of, you know, really awful things about him. And if it's not true and he didn't do it, then, well, you know, you got to feel kind of bad for him. It's hard to kind of put yourself into those -- into his shoes. I mean, he's been there for, you know, a year-and-a-half hearing these things, or longer, and you know, hearing all this stuff and, you know, being pretty much, you know, torn to pieces by everybody. So you kind of, you know, put yourself in his shoes, and you feel kind of bad for the guy.
VAN SUSTEREN: How do you position that against even looking on the big screen -- at least when I was there one day, they had a picture of Laci's body. I mean, how do you sort of reconcile it with the sadness of that?
FALCONER: Well, I mean, that's horrible. And I feel so -- you know, so badly for the family and, you know, for Scott, too, you know, assuming -- you know, if he didn't do it. It's difficult, you know, to watch it because the family was very emotional during that time. And you know, when the prosecutor put those pictures up, it was -- you know, it was pretty shocking to the family. And so them being, you know, six feet from us, you know, it -- we're very aware of their emotion and how upsetting it was, especially to -- and I'm not taking away from anybody else because I'm sure everybody, you know, was horrified by it. But Laci's biological father was extremely emotional and -- you know, so it was very obvious to see that. And it was, you know, pretty tough to sit there and watch them go through that and, you know, to see the whole thing. So it was pretty -- it was pretty tough.
VAN SUSTEREN: Did you and the jurors talk about the emotional aspect? You had both sets of parents there, obviously very grief-stricken for very different reasons?
FALCONER: We didn't really talk about that or pretty much anything else about the case. Tried to stay away, you know, from it. I think -- you know, I'm sure you want to say something, but you know, we weren't allowed to. And you know, the judge made it pretty clear he didn't want us talking about it. So I think it's -- you know, it was in my head and I can speak for myself that, you know, it definitely affected me. And it affected me in a couple of ways, and you know, that made me do a lot thinking that, you know, Wow, in the event that Scott is, you know, proven innocent and he didn't have anything to do with it, you know, these people are going to go through a lot. And you know, I kind of -- I kind of -- it's one of those things in my head.
VAN SUSTEREN: All right, Justin, stand by because we're going to take a quick break. In just a moment, we're also going to be joined by our panel, who will give us a firsthand account of what happened in court today. And up next: We're going to ask juror No. 5, Justin, what's the strongest evidence he's heard so far. Plus: Who's the juror replacing juror No. 5? And later: Amber Frey's lawyer Gloria Allred, was in court today, and she also joins us.
(COMMERCIAL BREAK)
(NEWS BREAK)
(BEGIN VIDEO CLIP - JANUARY 2003)
SCOTT PETERSON, ACCUSED OF DOUBLE MURDER: I'm not going to waste the time defending myself. I don't -- don't really care what those people out there think. When people accuse me of some involvement -- and I had nothing to do with her disappearance, but people still accuse me of it, my response so the same to all of them. Thank you for being aware of her missing from our family, and please do what you can to bring her home.
(END VIDEO CLIP)
VAN SUSTEREN: Back with more on the dismissal of Juror No. 5 at the Scott Peterson murder trial today. Juror No. 5 is still with us in Redwood City. And also in Redwood City are KFI radio's Laura Ingle and former San Francisco assistant DA Jim Hammer. Both Jim and Laura were in court today. We're also joined by former Westchester County court judge and current Westchester County DA Jeanine Pirro. She's in New York. Defense attorney Geoff Feiger's in Detroit, and defense attorney Yale Galanter is in Orlando.
Justin, that one thing that I was always curious about is how the defense would handle one particular issue. And I realize it's very early on in the case. Not all the evidence has been heard. The prosecution hasn't finished. The defense hasn't had its chance. But the fact that Scott Peterson places himself 90 miles away from home on a day that she disappears, and then three or four months later, the bodies surface about that area -- is that something you were thinking about, going into the case or not?
FALCONER: Well, going into the case, I didn't really know how far it was or anything like that. I didn't really know too much about it when I first, you know, got in there. But you know, after the testimony and everything was brought out, how far away it was, you know, it was obviously in my mind. But it wasn't as important to me as other -- I had other questions that needed to be answered. And you know, the distance didn't bother me that much. You know, it might have more later. But there were other questions that I had, you know, as to why he was there.
VAN SUSTEREN: What's the toughest question that you wanted to hear in this trial answered?
FALCONER: Well, how? How did he do it? How did he get her in the boat? How did he get her out of the boat? And you know -- how? And without people seeing. And you know, there's supposedly going to be testimony from people who witnessed and made fun of him when he was trying to enter the boat in the water. And how do you get that by? It's not like a yacht. You know, this is a small boat. You're going to notice somebody that's dead in the boat, you know, when it's that small. So that was one -- that was the main question.
And then, you know, if that got answered to where, you know, it was convincing that, OK, well, you know, yes, that's how he did it, well, then the other questions, you know, of -- well, if she was there, that kind of -- those questions kind answer themselves. But the main question is, if he supposedly did do it the way that the prosecution wants us to believe, how? You know, how -- how did he do it? Because if not, you can't convince me of that, you know, of how he actually had it done, well, then, I don't care -- it doesn't matter how she got in the water because it wasn't that way.
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