Is Peterson Prosecution Missing Some Pieces?

This is a partial transcript from "On the Record" with Greta Van Susteren, July 8, 2004 that has been edited for clarity.

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GRETA VAN SUSTEREN, HOST: We just heard from Amber Frey's father, Ron Frey, and Amber's attorney, Gloria Allred. Let's bring in our panel for reaction. Defense attorney Geoffrey Fieger, back from vacation. He's in Detroit. In San Francisco is former Assistant D.A. Jim Hammer. And here in Washington is defense attorney Bernie Grimm.

All right, Geoff, you must be rested by now, so let me go to you first.

GEOFFREY FIEGER, DEFENSE ATTORNEY: Very.

VAN SUSTEREN: Let me go to you first. This whole...

FIEGER: Hey, Greta, by the way, I want to — I want to thank you for your defense of attorneys in terms of Mr. Gingrich's attack on us. It is a noble and honorable profession.

VAN SUSTEREN: I can tell you one thing: my e-mails are burning through the computer screen. And I think sometime we ought to have an hour-long discussion about that.

But anyway let me get back to this...

FIEGER: And Michigan isn't up for grabs. If Florida is going to go for the Republicans, Michigan is going to go for the Democrats.

VAN SUSTEREN: I don't know. Right now, they're all so close. Who knows? But anyway, you're a multi-topic guy tonight. So let me get you to the other topic.

This whole idea, if Amber has other tapes — I mean, I don't know why I'm suspicious. And it's almost as though — not that she's done anything wrong. But if she has other evidence or information, is that a problem for the prosecution? If it hasn't totally been turned over?

FIEGER: No, and you're dealing directly with the source. If Amber Frey had any evidence that would get Scott Peterson, Gloria Allred would make sure that evidence was in the prosecutor's office, and she'd be playing it to him day and night. So you don't have to worry about that at all.

There is — there is a concept that, you know, there's just too much there. She might have so many calls that they're not going to play them all. But they may say all the same thing, essentially what this guy was doing was beginning at least the 24th or 25th from the police station.

While his wife was missing he was calling Amber Frey, professing his love, and he didn't stop for weeks and weeks after that. And the number of calls the prosecutor has is just going to kill him on this. Believe me. If it existed and was important, Gloria would have given it to him.

VAN SUSTEREN: Jim, can you overplay your hand as a prosecutor, like have too many calls or too many tapes? Or is there never enough?

JIM HAMMER, FORMER SAN FRANCISCO ASSISTANT D.A.: You know, in a death penalty case, you have to know every single piece of evidence. And I have to give you an A-plus for your cross- examination skills. It's too bad there's not a grand jury we could force Gloria to answer the question.

But there's something there, otherwise Gloria would simply say you got everything. Not everything relevant, not everything the police wanted.

It seems to me there was a delay by — by Amber or something happened. There's something there. I think Geragos is onto something. We'll find out about it in cross-examination.

VAN SUSTEREN: Bernie, I think there's something — It may be nothing, but for some reason — I guess it's because I'm not getting the complete answer. There's been the appearance of sort of a dodge, and Gloria has a right to dodge my questions.

BERNIE GRIMM, CRIMINAL DEFENSE ATTORNEY: I've been sitting in this chair for three years now. Not getting a complete answer from Gloria, I mean, are you giving me a news flash?

VAN SUSTEREN: We call them news alerts.

GRIMM: This is a Fox News alert; Gloria did not answer a question.

VAN SUSTEREN: Why do I think I walked into that one?

GRIMM: All right. I'm not going to get emotional about this. Tuesday night, July 6, Greta asked — and I'm paraphrasing — "Gloria, are there any other tapes out there?"

Gloria pauses, and then that impregnable sort of Hollywood smile that's always on her face quickly disappears. And she responds in her very lawyerly fashion, "All the tapes that are relevant, Greta, have been turned over."

Greta then digs in as brother M.C. Hammer said. And then Gloria goes off on this tangent, saying, "Well, Greta, Amber will testify. She won't clam up like Scott will." Which shows that Gloria's obvious legal acumen on the Constitution is just simply overwhelming, because I think Scott has the right to sit there and not say anything. At least, the last time I checked.

VAN SUSTEREN: Well — well, I mean, first of all, why wouldn't all of them be turned over? I mean, I don't know why we've even gotten suspicious at this point. I mean, what — I mean, of course you'd think she'd turn them over, Jim.

HAMMER: Something happened, obviously. And I don't...

FIEGER: What?

HAMMER: If The Enquirer — If Ted were here...

FIEGER: What?

HAMMER: ... he'd be citing it probably, no offense to Ted, but why didn't she give a straight answer, Geoff? I mean, I like Gloria — I like Gloria, but it sounded a little bit like the Clinton deposition. You know — go ahead.

FIEGER: She doesn't give straight answers about a lot of things, because she says she's constrained because of her representation of Amber Frey.

But what — For what purpose would she withhold them?

HAMMER: Exactly. Right.

FIEGER: I mean, Gloria doesn't want this guy to get off.

HAMMER: I agree.

FIEGER: Believe me. There's no love lost between Geragos and Gloria. Why would she hold — and Geragos...

HAMMER: I agree.

FIEGER: ... if he knew about it would be standing up in court saying, "Here is what I'm missing. Give it to me, judge."

HAMMER: That's why guess what?

FIEGER: The judge would give it to him.

HAMMER: My guess is something was — it was delayed in some way, I think, is what happened.

VAN SUSTEREN: And I have no explanation. I'm just suspicious at this point. Uncouth position to be in.

Dismissed Peterson juror No. 5, Justin Falconer, joins us from Kansas City, Missouri.

Justin, yesterday in court, the prosecution presented photographs of a very pregnant employee in the prosecution's office in January, was able to get into the boat and lie down and basically be hidden and also could fit into the toolbox in the back of Scott's truck.

If you were still sitting as a juror, would this give you some reason to think — at least, does it lead towards guilt in your mind?

JUSTIN FALCONER, DISMISSED PETERSON JUROR: Well, no. And it's — I wanted to see that, but at the same time I didn't want to see it the way he presented it. He presented a live woman getting into the boat and curling up in a ball. That's not what happened. It's different. And I want to see the whole picture.

Just also showing us a small, little piece of that larger picture. And I think later on, Geragos is going to show us the entire picture, it's not possible to throw the body out and stuff. So I think...

VAN SUSTEREN: Why do you think Geragos — why do you think Geragos is going to show you that? I mean, have you heard something?

FALCONER: No, I haven't heard anything. But I've got a feeling that he's, you know, he's going to have either the video like — I saw the show last night and I think it was Hammer was talking about it.

He's going to have a video or something showing that it's impossible to throw the body over with that much weight.

Plus, they had a live woman in the boat. They didn't have a blue tarp. They didn't have the weights in the boat. They didn't have anything. They had a staged situation where they were able to get a woman in the boat. And quite frankly, I think you can stage anything.

VAN SUSTEREN: But is — The purpose of the presentation was not to convince you totally of Scott Peterson's guilt but rather to add one more piece of evidence in a direction. This is a circumstantial case.

Would you totally dismiss this presentation by the prosecution or would you at least consider it towards the time you actually deliberate?

FALCONER: I wouldn't dismiss it. I definitely took, you know, would take it into deliberation. But the question is what is Geragos' response going to be and what is he going to show us that's going to — that's going to contradict that?

See, Distaso is showing us one small piece of that picture, and I'd like to see the entire picture, which I've got a — I have a feeling that Geragos is going to show us later on.

VAN SUSTEREN: All right, Justin. Thanks very much for joining us.

Let's go back to our panel.

Geoff, apparently this demonstration that the prosecution showed some photographs yesterday, at least for this particular juror, was not horribly persuasive. Or at least in adding the pieces of the puzzle together.

FIEGER: Every day Geragos must hit his head that he lost Justin as his juror. Every single day. This guy must — he just can't believe that Justin couldn't keep his mouth shut, because that guy would have prevented — would have produced a hung jury.

But I'll bet you the other jurors don't feel that way, especially — he's got a big — this guy — what Geragos has got to tell the jury is: "My client's the unluckiest guy in the world. He went fishing out in San Francisco Bay and guess what? His wife and his son washed up there. How unlucky could he be?"

Now, if anybody buys that, I want to know. Because believe me, I want to learn the technique to convince people that this guy is just an unlucky guy.

VAN SUSTEREN: Jim, could the court order a video demonstration where both sides are in agreement...

HAMMER: No.

VAN SUSTEREN: ... and have the conditions set almost — No, not at all?

HAMMER: No, and by the way, I guess O.J. was the unluckiest guy in Los Angeles. That's what 12 people thought there when they walked — when they walked him free.

But the problem with this is this. I think the D.A. did a good job, as you said, Greta, doesn't have to show how it happened but one way it could have happened. I'm sure Geragos at least should have tried to do this. If it turned out bad he doesn't have to give it to the D.A.

Here's the problem. Whatever D.A., investigator or cop engineered this demonstration we saw had some discussion with the D.A. about doing it. And when he's on the stand Geragos is going to ask him, "Did you talk to the D.A. about doing the rest of the demonstration?"

And if the D.A. told him, "I don't want to do that," can you imagine the jury listening to the D.A. tell that investigator, "Let's not to do the demonstration in the bay, because it might turn out bad."

Once you've done part of it, Greta, you have to have a good explanation for not doing the rest. I'm not sure there is a good one. So the D.A. might have walked in a trap with this good piece of evidence.

VAN SUSTEREN: And here again is where I'm suspicious. Must be my night to be suspicious.

Bernie, I actually believe in this case that both sides had to have done the demonstration of the prosecution's theory, the prosecution's theory being that Scott Peterson went out in the bay, San Francisco Bay, and dumped her out of the boat.

And it seems to me both sides would have done everything to see how it was either possible or impossible to do this from a 14-foot boat. I think there are two videotapes there.

GRIMM: All of us sitting here, Hammer, Fieger, you and I, would have all done it. I'm sure Geragos has done it. I'm sure the prosecution has done it. And you do it in a criminal case. You just simply have to do it.

VAN SUSTEREN: If you can afford it.

HAMMER: Bernie — Bernie, just look. The problem for the D.A., if the D.A. did it and it turned out bad, Bernie, they have to give it to the defense and it could blow their case.

I can imagine these D.A.'s saying, "I'm afraid of how it's going to turn out" and not doing it.

FIEGER: However, if Geragos — if Geragos doesn't do — put it on in evidence, then you know it didn't turn out good for Geragos.

HAMMER: You're right. You're right.

FIEGER: Because you're right, Jim.

GRIMM: But Jim, you have to anticipate that you are light years ahead of these two gentlemen in the courtroom in anticipating what's going on in this case, because the first three weeks was watching like vinyl siding being nailed to the side of your house.

But to get to Greta's point, is if — we talked about it last night. Whoever — whoever does the final demonstration of a boat being capsized or one being — standing buoyant in the water, I think, is the one who prevails at the end.

VAN SUSTEREN: And here's my prediction. My prediction is that even though the prosecution should turn over a test if they've already done it, my prediction is they both have done these videotapes. But it's simply my prediction, because it's such an elementary thing for both sides to do.

But anyway, we'll see. The trial goes on. Gentlemen, thank you.

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