This is a partial transcript from "On the Record," November 14, 2006, that has been edited for clarity.
GRETA VAN SUSTEREN, HOST: Lies, lies, and more lies from the accuser. That's what the defense is claiming in the Duke lacrosse rape scandal. And now the former manager of the accuser's strip club says she has an alternative explanation for the accuser's scrapes and bruises. She says the accuser passed out a lot and the bruises could be from being dropped on gravel road.
Let's bring in the panel. In Detroit, criminal defense attorney Geoff Fieger. In Tampa, prosecutor Pam Bondi. And here in D.C., criminal defense attorneys Ted Williams and Bernie Grimm.
Bernie, apparently, on March 11, two days before the alleged rape at the house of the lacrosse players, the accuser was at a club and was dancing, and apparently, had some problems and passed out, and it is thought, at least by the manager, she may have gotten some scrapes.
BERNIE GRIMM, CRIMINAL DEFENSE ATTORNEY: Yes, the manager of the Platinum Club in Hillsboro — for adults only, Ted, and we can go into the fact that you spent a lot of time there before and you're a gold card member.
(LAUGHTER)
TED WILLIAMS, CRIMINAL DEFENSE ATTORNEY: Bernie, be quiet.
GRIMM: That's a whole other show. But she had passed out. He said it wasn't from drugs, it wasn't from alcohol, because he didn't think she abused those things. But she just passed out. People had to collectively dress her in the dressing room, carried her out, and he said dropped her no less than three times in a gravel parking lot, which seems to me that's completely understandable. You can get scrapes and cuts when somebody just drops you to the pavement. So that's disturbing.
But when you say — your leading, Greta — this is just — piles on and on. When you say it can't get any worse, then something else just pops up.
VAN SUSTEREN: Geoff, can it get any worse?
GEOFFREY FIEGER, CRIMINAL DEFENSE ATTORNEY: Well, I would like to say also with the gold card at the Platinum Club, you only get in once every two years. So he didn't spend a lot of time there.
(LAUGHTER)
BONDI: You know, Geoff, don't you.
FIEGER: No, I don't understand why Nifong has continued this. This is beyond prosecutorial misconduct now. This is somebody who had no business doing what he did and refuses to admit he's wrong. And that promotes disrespect of the law, Greta. I know you're a big proponent for respect of the law. And I can't perceive that Nifong could continue to go along this path and threaten these young men, in effect, ruin their lives, as we've all seen, under the circumstances that have been shown to exist here.
VAN SUSTEREN: Pam, it's — you know, we'd love to be fair. You know, we want to be fair in all instances to the prosecution, and we all have great difficulty trying to find any reason why Nifong is doing this. But let me give you a free pass. Come up with your wildest imagination. Can you think of any justification for the posture we find ourselves in in this case?
FIEGER: Yes. He doesn't want to admit he's wrong, period.
PAM BONDI, PROSECUTOR: Greta, I wish I could now, but it's difficult. And as Bernie said a while ago, what happens is — no case is perfect for a prosecutor, and something bad always happens in a case. But this case, it just keeps getting chipped away and chipped away and chipped away. Something awful seems to be happening every week on it. And I mean, it's — it's been an uphill battle from the beginning, but they're going to have a horrible time trying to prove this case, at this point.
VAN SUSTEREN: You know, Pam, it's one thing to lose a case and then also not be able to prove a case beyond a reasonable doubt. But the thing that I think is so stunning, at least, you know, from my perspective, is that there are so many signs here that I wonder why the prosecutor isn't stepping up to the plate and doing what we all think would be the responsible thing, talk to the complainant and find out whether or not these events even occurred, instead of — I mean, this is — I mean, it seems egregious. And I'm trying to think of a reason, you know, to defend Nifong, but it's egregious, what we see.
BONDI: And Greta, I've been doing the same thing, and it's really tough because, you know, the burden isn't that you believe a crime was committed. It's additional. You also have to believe that the defendants committed the crime, but also, you have to have a reasonable likelihood of success at trial. And right now, I don't think any of us think there is any chance of convicting these young men.
VAN SUSTEREN: All right, Ted, I'm going to put you in the hot seat. You've tried the hardest to defend Nifong on this.
BONDI: You know, you cannot defend the indefensible. Without a doubt, this is a prosecutor who initially, we all thought, had looked at the evidence, had interviewed the so-called alleged victim. We now find that none of this has happened. He told us that there was some physical evidence. We find that there is none. This case, unfortunately, needs to go out by the wayside and be dismissed.
VAN SUSTEREN: All right. OK. Three young men are accused of a crime, Ted, that can send them to prison for a long time. The accuser probably is suffering, as well, because I'm sure that, you know, if it's like we all think it is, I'm sure she doesn't, you know, ultimately want to be a part of this.
BONDI: Sure.
VAN SUSTEREN: What should be done about the prosecutor? Now. Now.
BONDI: Hey, right now, really, the community should move for a recall. I think that...
VAN SUSTEREN: Recall? They just elected him last week!
BONDI: I realize that. But there's something else, and Jeff Brown, who was on our show, has said it, that maybe the attorney general should step in and they should look at the prosecution of this case.
VAN SUSTEREN: Geoff, what should happen?
FIEGER: Well, Ted's right. Somebody should do something, the grievance authorities in North Carolina, if nothing else. But the problem is, is this isn't an isolated case. No one should believe that this type of thing doesn't happen regularly and the prosecutors don't just take a flier on cases all the time where they know they don't have the evidence but they chalk up another notch on their belt. Unfortunately, this happens all too often in America.
BONDI: Oh, Geoffrey!
VAN SUSTEREN: All right, I mean — I mean, like, let's face it...
FIEGER: Oh, sure, we're not convicting innocent people all the time, are we, Pam.
BONDI: No.
BONDI: No, we're talking about this case, Geoff, and this is the unfortunate case.
VAN SUSTEREN: Geoff, there are some good prosecutors and good cases, and there are some...
FIEGER: I didn't say there weren't! I just said this was... I said this wasn't an isolated case. And everyone believes that prosecutors are pure as the driven snow, and they're not. Most of them do it as a game.
BONDI: Oh, Geoffrey!
VAN SUSTEREN: You know, I guess the thing that bothers me, Bernie — and I'll get off the subject of the prosecutors because we're going to get caught in a horrible fight — is what in the world is the judge doing? The judge has had motions for discovery. He's not a potted plant. Why doesn't he order the parties to court and start litigating these motions and move this case?
GRIMM: Yes. I mean, let's say the judge doesn't watch this show. By accident, if you're channel surfing, you are going to find something about this case. And he should remain detached and neutral, but I'm sure...
(CROSSTALK)
VAN SUSTEREN: ... he can order — look, motions have been filed. He can say, All right, we're going to have...
FIEGER: No, he can't.
(CROSSTALK)
FIEGER: He can't.
VAN SUSTEREN: Yes, he can.
FIEGER: He can't.
VAN SUSTEREN: Absolutely, he can.
GRIMM: He can call the parties in and say, Nifong, let's have a status hearing. What's going on in this case?
FIEGER: He can't take an adversarial position, though.
VAN SUSTEREN: He can't do that. He can't do that.
GRIMM: Why can't he call the...
VAN SUSTEREN: No, no. What — what...
GRIMM: Why can't he call the parties in?
VAN SUSTEREN: I don't think he...
GRIMM: He could call Pam in, and Pam said...
VAN SUSTEREN: I don't think he...
GRIMM: ... I've looked at the evidence, I'm going to dismiss the case with prejudice.
VAN SUSTEREN: Because he's not going to get that on Nifong, and you can't pre-try the case. But what the judge can do is he can take existing motions that have been filed...
BONDI: Absolutely.
VAN SUSTEREN: ... not answered...
GRIMM: And rule on them.
VAN SUSTEREN: ... and rule on them, demand the parties step forward and argue the motions and present evidence as appropriate.
BONDI: And one would have to believe that they're filing motions as it pertains to what evidence that the prosecution has given them. But you know, that's what...
FIEGER: Yes, but judges don't like to do that...
(CROSSTALK)
BONDI: ... slow drip of the evidence...
FIEGER: Judges don't do that because...
(CROSSTALK)
FIEGER: In America, judges never do that because then they'll be accused of not being tough on crime. And every judge who runs for election has to say, I am tough on criminals, no matter who they are. They never do that.
VAN SUSTEREN: Geoff, by simply demanding that the process be followed, that motions that have been filed be answered and have a hearing...
FIEGER: Wait a second! You're talking common sense. In America, judges run on this cockamamie theory that they're tough on crime and they're going to put everybody who comes before them in jail for the rest of their lives...
BONDI: Oh, Geoffrey!
FIEGER: ... so the public feels that that's a good judge. That's what...
BONDI: But Geoff — Geoff...
(CROSSTALK)
FIEGER: You don't watch elections for judges?
BONDI: ... talk about what is...
FIEGER: When's the last time you saw a judge run for election and say, You know what? I'm fair to everybody who comes before me and anybody accused of a crime is presumed innocent. You've never heard a judge say that running for election! They all say, I'm tough on crime. I'll send them to jail forever. I'll give them life. I'll give them death. They all say that! That's the way you get elected in America!
VAN SUSTEREN: All right, let's give Pam a chance to respond. I hear you trying to get in on this, Pam.
BONDI: Well, Greta, the judge is the impartial magistrate in a case like this, and that's the role he has to maintain. If we can do away with Geoffrey's conspiracy theories for a few minutes — no, the judge...
FIEGER: It's not a conspiracy.
BONDI: I agree with you, the judge has to rule on the existing motions. And you know, there are some great defense attorneys in this case and they're going to file all the proper motions and they're going to be heard. Is the judge going to throw it out pre-trial? I seriously doubt it.
This is going to go to trial, or the prosecutor is going to have to dismiss it or drop the case. But after he puts on his case, of course, before the defense even puts on a case...
BONDI: Sure.
BONDI: ... the judge could have a chance to throw it out then, if they can't prove their case.
VAN SUSTEREN: If it's as bad as, you know, we're suspicious, Bernie — let's say that, you know — that this does get to trial and there's no conviction and it turns out to be, let's say hypothetically, worse than we think, anything happen?
GRIMM: Yes. I mean, I think Pam was alluding to this. When she's a prosecutor, she wants to eliminate the fact — I think if there's a doubt in someone like Pam's mind — and you meet prosecutors like that all the time, Geoff. I agree it's a sporting contest, but there's more people like Pam than there are like Nifong. The danger is, as much doubt as there is and the fact that they're probably factually innocent, you send this case to a jury, all three people could be convicted. There's no doubt in my mind.
BONDI: Wait a minute, guys! It doesn't have to get to a jury. The prosecution will put on its case, the judge at that stage...
VAN SUSTEREN: That never happens!
BONDI: ... could move for directed verdict on the evidence.
VAN SUSTEREN: Oh, that — oh, Ted, I'll go with Geoff on that one.
BONDI: I know, but...
VAN SUSTEREN: I mean — I mean, it's not going to get thrown out at that point.
BONDI: Well, I don't know. If there's no evidence, Greta — if what we know about this case right now...
VAN SUSTEREN: It's rare, though, Pam.
BONDI: ... exists, it could go.
VAN SUSTEREN: Pam, I mean — Pam, it does happen, and technically, it's the correct thing to do. But you have to agree that's unusual.
BONDI: It is. It's rare, but it happens. I've seen it happen, especially if your witnesses change their statement during the trial. I've seen it happen. But it's rare, but I think if we're ever going to see it, it would be in this case.
VAN SUSTEREN: But in the meantime — in the meantime, these three are not — they're not at school at Duke. Their careers and lives are put on hold. And I suppose it's a lot better than being in jail, where a lot of people are. But I mean, there must be some remedy to try to move this — in this situation, which we all agree that it seems egregious, Geoff, any way to accelerate this?
FIEGER: No because we're living in America in the year 2006. If America suddenly gets some common sense and recognizes that we are a country, really, of laws and that we better start acting like it, and everybody accused of a crime isn't guilty and there is a presumption of innocence, and they're not guilty until proven innocent, like most people really believe, then we could start working towards that. But in America today, the answer is no. They're just going to go through the process. They're going to be exonerated, but at great cost. And it's not just to those young men. It's great cost to our society that this could happen.
VAN SUSTEREN: And I — and I painfully wonder who was asleep at the wheel down in North Carolina, if it is, as we all suspect it is, and this is the one instance where I hope that I'm dead wrong and I hope I have Mike Nifong completely wrong. And I'd love to have him come on the air and I'd love to have him prove me wrong and...
FIEGER: He used to talk a lot, Greta. He used to talk a lot.
VAN SUSTEREN: You know, he's — you know, it's stunning to me that the bar in North Carolina isn't speaking at little louder, as well, and the judges aren't holding hearings on the motions that have been properly filed and doing the procedure. But we'll — I guess we'll wait and see. Panel, thank you. I took the last word on that one.
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