Howard K. Stern's Big Problem

This is a rush transcript from "On the Record ," March 13, 2009. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: You remember the clown video, Anna Nicole Smith on video shot by Howard K. Stern. Is Anna Nicole Smith on drugs, or is this just an act? Now, this tape could have new significance now that Stern and two of Anna Nicole's doctors have been charged for allegedly providing her with drugs. So watch carefully. You decide.


STERN: Anna -- Anna, look at me. Reilly thinks you've absolutely lost your mind.


STERN: Riley thinks you've lost your mind.

SMITH: I didn't lose my mind.

STERN: She thinks you have.

SMITH: I didn't.

STERN: Is this a mushroom trip?


STERN: Is this a mushroom trip?

SMITH: What?

STERN: Is this a mushroom trip?

SMITH: What do you mean?

STERN: I'm kidding.

SMITH: What does that mean?

STERN: I'm kidding.


VAN SUSTEREN: In April 2008, Howard K. Stern went "On the Record" about the clown tape. You watch, you decide.


VAN SUSTEREN: What's the mushroom remark?

STERN: That's my sense of humor. And you might fault me for my sense of humor, but if I thought she was on drugs, why would I say that on camera? It's just -- it's absolutely ridiculous.

VAN SUSTEREN: So you say -- so that's an innocent videotaping of a birthday party, someone having fun with a sense of humor and...

STERN: Totally taken out of context.

VAN SUSTEREN: A lot of people think you supplied her drugs. No?

STERN: I mean, again, that's out there in the media. You know, that's...

VAN SUSTEREN: Never happened?

STERN: That's what the story was. In terms of, did I ever go to the pharmacy and pick up...

VAN SUSTEREN: No, I don't mean that. You know what I mean. You know what I mean.

STERN: No way. I would never do anything to hurt Anna. She was everything to me. Everything to me. Everything.


VAN SUSTEREN: Your legal panel is back. Joining us live are criminal defense attorneys Ted Williams, Bernie Grimm and Michael Cardoza. And until I just saw that videotape, gentlemen, of Howard K. Stern on the stand, I was thinking, having gone through the materials, that Howard K. Stern is going to -- he's going to -- you know, that this is not a problem for him. But I want to replay the videotape. I want every -- the viewers to listen very carefully what he says about how many doctors and what he knew. Listen to this.


STERN: Anna Nicole took prescription medication at times for depression. She did.

JUDGE LARRY SEIDLIN, BROWARD COUNTY, FLORIDA: Did she have more than one doctor prescribing these drugs?

STERN: Not that I'm aware.

UNIDENTIFIED MALE: Isn't it a fact that one of the drugs she took was methadone?

STERN: She took methadone, but not during -- in my presence for sure not over the last five months.

UNIDENTIFIED MALE: She took methadone prior to the last five months?

STERN: She did.

UNIDENTIFIED MALE: And are you aware that methadone is a narcotic?

STERN: Sir, I know it's a prescription medicine. It may or may not be a narcotic.

UNIDENTIFIED MALE: Who is the doctor that you say prescribed the drugs?

STERN: It's a doctor named Dr. Kapoor.


VAN SUSTEREN: All right. Well, here's the problem, Bernie, is a couple of things, is that the criminal complaint is replete with references to him dealing with Dr. Eroshevich prescribing all sorts of drugs, and Dr. Eroshevich -- - not only was he picking up drugs she prescribed, but Eroshevich went and made several trips to the Bahamas and was even in the hotel room a day before Anna Nicole Smith died. He's covering for her. That's a problem. Until then, I thought that he didn't have any problems.

BERNIE GRIMM, CRIMINAL DEFENSE ATTORNEY: I thought there was some wiggle room for him until that question, which was very specific. And in fact, he paused on it and he said -- he said one doctor. He's obviously covering for Eroshevich. My feeling is, is that's the person -- at least the argument's going to go -- that he had the tightest relationship, who was perhaps supplying the highest number of narcotics, so...

VAN SUSTEREN: Michael, why was he -- why was he -- why didn't he mention Eroshevich? I mean, you look at this criminal complaint, she's the one who's writing a lot of these, having the communication, and she made several trips to the Bahamas. And not only that, she's in the hotel room the day before. Kapoor isn't even -- he isn't even around.

MICHAEL CARDOZA, DEFENSE ATTORNEY: Well, Kapoor is around, but Eroshevich certainly is in the middle of the mix. And if you read the overt acts to count one, I think it's count -- the overt acts 7 and 10, they talk about Eroshevich, where she's told by a pharmacist, Look, I'm not going to fill your prescription, and you better get Anna to a doctor. You better get her in the hospital. You better get her heart checked out.

So both Dr. Kapoor and Eroshevich were warned by pharmacists and other doctors, according to this complaint by the LA DA's office. One of the things that they have to worry about besides this criminal prosecution is they well might lose their licenses, and that's a big thing.

VAN SUSTEREN: Well, I think that's a lesser problem than having a criminal conviction. Ted, I actually thought -- listening to the attorney general, I thought -- of the state of California -- he referred to Howard Stern as an enabler. And it occurred to me that, you know, if that's the way he looks at him, he's just the one who's, like, you know, supplying the prescription drugs, then that would be a defense in the sense that, Look, I'm just doing what the doctor told me, or, She was screaming she wanted these drugs, you know, whatever it is, and I'm just, you know, being the loving friend. But the problem is, is that on that witness stand, the fact that he covers for her -- I mean, at least it seems to me he's covering for her.

TED WILLIAMS, CRIMINAL DEFENSE ATTORNEY: Well, I have to agree with you on the witness stand there. And one of the things that I think he has to worry about, in light of what we've seen tonight, is perhaps a perjury charge down the road. But the fact about him calling -- meaning the attorney general -- they're calling him a drug enabler -- well...

VAN SUSTEREN: Well, that's better for him. What's not good for him is on the witness stand, when he pauses and he leaves out the person who's all over the criminal complaint, who had just been in the hotel room.

WILLIAMS: Well, wait a minute. Let's go back here. About five weeks before she died, she had been prescribed 600 pills. And guess whose name they were in? Howard Stern. And it is...

VAN SUSTEREN: Yes, but a famous person wants a cover. I don't mind the false names. That doesn't bother me. We need to take a quick break.

WILLIAMS: But it's more than that.

VAN SUSTEREN: Well, I think -- I think the problem is, covering for Eroshevich certainly is suspicious. Panel, stand by.

Up next: Larry Birkhead talks about Anna Nicole's drug use and the couple's baby, Dannielynn. You'll also hear from Larry next.

Then later, Anna Nicole herself goes "On the Record." In 2002, Anna Nicole told us the behind-the-scenes of her relationship with her lawyer, Howard K. Stern. Tonight, you will hear Anna herself tell you.

Plus: Hold onto your seat for this one. France and Germany are looking at our massive spending bills and saying, You guys are nuts. Are we? And on another note, do we care what France and Germany say? That's coming up.


GRETA VAN SUSTEREN, FOX NEWS HOST: The Anna Nicole Smith case is once again exploding. Anna's lawyer and former boyfriend Howard K. Stern and two of her doctors charged in an 11-count felony criminal complaint.

Anna Nicole has managed to stay in the headlines for years after her death. After Anna Nicole died, a very public paternity battle went on for weeks between Howard K. Stern and Larry Birkhead.

Both men claimed to be the father of Anna Nicole's baby Dannielynn. It was eventually proven by DNA that Birkhead is indeed Dannielynn's father.

In June of 2007, Birkhead went "On the Record" about his baby daughter, who at that time was only nine months old, but was already very famous.


VAN SUSTEREN: What are you going to tell her when she gets older? Have you thought about that, because this is a rather extraordinary start to a life?

LARRY BIRKHEAD, FATHER OF ANNA NICOLE SMITH'S DAUGHTER: I've thought about it. I'm kind of more concerned about what she's going to hear from things that I don't tell her that's captured in video and court hearings, transcripts.

And even things I had to participate in for the fight, things that I said that-that were truthful, but did we really have to go there? Did it have to come to that? The whole Florida thing, did we really even have to go there and say all this stuff and that stuff, and what was I even doing there.

VAN SUSTEREN: How about Anna Nicole's drug use? Have you thought about that?

BIRKHEAD: No. Well, I have thought about that. And I think I'm just going to have to--it's probably going to--it's probably going to make me a little bit more overprotective.

It's tough, because I don't really want to -- I don't like to think about it sometimes, so I don't really know how I'm going to talk about some of the things I don't even want to think about.

VAN SUSTEREN: You've got some time. You've got a little time.

BIRKHEAD: So, I mean, that's what helps me with that. Today all I have to do is make her smile, make sure she's healthy, and put a roof over her head, and make sure she has all the affection and love she needs.

And then that stuff I can worry about later, because I have so many things to worry about today that I can't even think about that, you know?


VAN SUSTEREN: The legal panel is back.

And during the course of the break, we've had more time to go over the criminal complaint in light of-at least I was stunned by the fact that Howard K. Stern on the witness stand left out Eroshevich.

We've now gone through the complaint and it appears very quickly that last time any d rugs were prescribed by Dr. Kapoor, the one he talked about, was six months before she died. And there were several subsequent prescriptions, including in January, a month before she died, by Eroshevich. And he leaves it out. He doesn't mention that.

BERNIE GRIMM, CRIMINAL DEFENSE LAWYER: It's funny. And what Ted picked up is in the room they find multiple prescription bottles with over 600 pills missing. So the inference is that those were written by Eroshevich. And then he leaves that doctor's name out, which is really troubling.

And what bothers me is he paused about it. There seemed to be reflection, and it was very measured.

VAN SUSTEREN: Michael, do you have any sort of innocent explanation why he would say Kapoor, who apparently hadn't written a prescription in about sick months, and he leaves out the one who, at least according to the criminal complaint, has got lots of prescriptions, a lot more, and was there in the hotel room and made several trips to the Bahamas?

What's the innocent explanation? Come up with some wild explanation. Got one?

MICHAEL CARDOZA, CRIMINAL DEFENSE LAWYER: Boy, you know, that is really, really difficult, because the D.A. will be able to prove that he did know about it. A lot of the prescriptions were in Howard's name. He admits going to the pharmacy to pick them up right here on tape.

And that's one of the allegations in this complaint. Boy, it's going to take a lot of thinking to come up with some innocent explanation for that.

But instead of trying to cover him, he's going to have to cover himself. He's got a lot to explain here, because he's going to be portrayed as nothing more than a legalized drug dealer.

VAN SUSTEREN: He's also got a problem whether he's telling the truth on the witness stand in Florida. But let me read overt act number 37. Khristine Eroshevich up the controlled substances for Howard K. Stern and Ben Stern, all intended for Anna Nicole Smith.

Overt Act 38, January 5, 2007. Khristine Eroshevich shipped the controlled substances via Federal Express overnight to Maurice Brighthalf(ph) in Florida and intended for Anna Nicole Smith. We just heard from, of course, Maurice's wife, Tas.

Over at Act 39, on January 26, '07 -- that's less than a month before she died, like two weeks -- Khristine Eroshevich prescribed controlled substances to Howard K. Stern, who was not a patient of hers, who were intended for Anna Nicole Smith.

And then, of course, she dies two weeks later, and he omits her. I don't have any problem with it being written in Stern's name. That's not the problem. The problem is Stern, why didn't he mention this?

TED WILLIAMS, CRIMINAL DEFENSE LAWYER: Look, who was near and closest to Anna Nicole at the time she died? We did a lot of stories on it. Howard K. Stern was down there. Eroshevich at one time was in the Bahamas, and she was also in Florida, Eroshevich. Eroshevich's fingerprints are all over that.

VAN SUSTEREN: And he's covering for her. I don't get that.

GRIMM: Not only that, but what Greta just said is that the previous doctor seems to be taking a back seat and Eroshevich seems to be coming to the front on the scripts.

VAN SUSTEREN: Michael, you have 20 seconds to finish this.

CARDOZA: I'll tell you, what the most important thing is going to be in this case is they were warned by pharmacists, we're not going to fill these prescriptions. Go talk to another doctor.

They apparently did talk to another doctor, and that doctor warned them.

VAN SUSTEREN: All right, but that goes to the doctors. But Howard can say, look, I'm a lawyer. I'm not a doctor.

CARDOZA: Agreed.

VAN SUSTEREN: Agreed. And so that's the doctors' problems. And that's a serious problem for those two doctors. I agree with that.

But that's not Howard's problem.


VAN SUSTEREN: Howard's problem is what he said on the stands and why.

WILLIAMS: You're right.

VAN SUSTEREN: All right, panel, thank you.

CARDOZA: They got him there, too.

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