This is a rush transcript from "On the Record ," December 14, 2007. This copy may not be in its final form and may be updated.
GRETA VAN SUSTEREN, HOST: Welcome to a special edition of "On the Record," "Cops, Cases and Clues." Now, first we have breaking news in the Peterson case. Former LAPD homicide detective Mark Fuhrman has uncovered some more new information, disturbing new information on what Stacy Peterson said happened the night Drew Peterson's wife number three died. Mark has even discovered what Sergeant Peterson allegedly told Stacy to say, how Sergeant Peterson created an alibi.
We've got our legal panel with us for the entire hour. This time, though, I'm going to try to make them behave. And we'll, of course, be breaking down all the hottest cases in the news in this special edition. So in Chicago, Illinois, former LAPD homicide detective Mark Fuhrman joins us. In New York, forensic pathologist Dr. Michael Baden.
DR. MICHAEL BADEN, FORENSIC PATHOLOGIST: Hi.
VAN SUSTEREN: Joining us live in San Francisco, former assistant DA Jim Hammer. And here with me in Washington, D.C., criminal defense attorneys Ted Williams and Bernie Grimm.
Mark, first of all, I teased on Gretawire.com that you had some new information tonight. I didn't want to steal your thunder. So go ahead. Tell the viewers what you've uncovered.
MARK FUHRMAN, FMR LAPD HOMICIDE DETECTIVE, FOX ANALYST: Well, Greta, it's a mouthful, so I'll start at the beginning. We have to take ourselves back to February 29, that's Sunday night, into the early morning hours of March 1. That is a Monday.
Now, Kathleen Savio was found Monday night at 11:17 PM, almost midnight. So prior to that, we heard on Monday Pastor Neil Schori tell you that Stacy actually confided in him that Drew Peterson actually confessed that he had killed Kathleen Savio. And you, of course, followed up, When? And he said that Stacy told him the very night.
Now, I've got sources that have given us, later in the week, we found out that she woke up in the middle of the night. And there was numerous times she tried to find Drew in the house, but she couldn't find him. She yelled out for him. She called him on the cell phone numerous times, described almost incessantly. He never answers. Where was Drew?
Now, I was uncomfortable yesterday, I'm more comfortable today with this information. I believe it's absolutely corroborated that Stacy told Pastor Schori that day that in that time when she finally found Drew in the house, she heard him, he was downstairs by the washing machine. She saw him. He was standing there in all black, stripping down, putting his clothes into the washing machine.
He also had a bag in his hand that he emptied that was women's clothes. And he looks at her and he starts telling her, explaining to her, In several hours, the police are going to be here, and they're going to ask a lot of questions. I'm going to tell you what to say. It will be a perfect crime.
JIM HAMMER, FORMER ASST. SAN FRANCISCO DA: Oh!
VAN SUSTEREN: And did — what was she told to say?
FUHRMAN: Well, of course, the issue of what to say is the alibi that, of course, Drew was with her. Now, you certainly don't use a cell phone to call somebody that's lying in the same bed with you. You can poke them with your finger. You can shake them. You can throw water on them. But you don't use a cell phone. So if the cell phone — the cell phone records still exist, and we know that the alibi was — they were interviewed — Drew and Stacy were both interviewed, so that alibi is history. And what was said can be refuted by those phone records, which should have been done in 2004.
VAN SUSTEREN: All right. So we've got the phone records that could bolster or corroborate the statements, the information you've gotten. Let me go to Dr. Baden. Dr. Baden, time of death is going to be a little bit important, but I suppose if the phone records don't exist for the entire time period, that the precise time of death isn't particularly compelling.
BADEN: Well, from the beginning we're talking about from the rigor mortis and the lividity that was present when Kathleen was found in the tub about 11:00 PM would indicate that she died sometime between, say, 2:00 and 6:00 AM Monday morning, I think just the time that Mark has found out that Drew doesn't really have an alibi. Whatever it is, whoever did it, was done — she died around 4:00 AM, plus or minus two hours, on Sunday morning.
VAN SUSTEREN: Mark, what do you see as sort of the relevance of trying to piece this together, of having the bag of women's clothes? Is your theory that, from what — I mean, that you can put together, is that — is that since she was found naked in the tub, it was made to look that she drowned in the tub, took a bath, so you wouldn't want, for instance, bloody clothes from that back of the head gash or what ever. Is that your theory?
FUHRMAN: Well, you know, theory is something we can dream up, but what facts we see is — Michael Baden and I have both talked about this. The injuries are inconsistent with falling in the tub. That means they happened somewhere else. Some of those injuries could have rendered her unconscious and she was finally drowned in the bathtub.
We know several things about her. She didn't wear jewelry in the bathtub, she didn't wear it in the shower, and she didn't wear it swimming because she felt she had a reaction to that jewelry on her skin when it was wet. She didn't have her hair down. Now, those bruises and abrasions — abrasions are not going to occur in the tub, the abrasions to her left buttocks and left elbow. That means that they occurred somewhere else. The crescent-shaped contusions on both shins, identical on both shins, circular, which means the object that struck her was probably round.
I believe that she was clothed in some kind of clothing, whether it was nightclothes or street clothes or some type of clothes when the attack occurred. She was disrobed and she was placed in the bathtub to complete the act.
VAN SUSTEREN: Dr. Baden, is that sort of — does that sort of comport with sort of what...
VAN SUSTEREN: And I got to (INAUDIBLE) you know, is all of our sort of working hypothesis — I mean, you know, it certainly sounds very compelling, but I — you know — you know, it's hard when we weren't exactly there.
BADEN: But Greta...
VAN SUSTEREN: Is there physical evidence to corroborate that?
BADEN: Yes. This is — what Mark is saying — it's interesting because this is a good example of how his police — the police investigation, as Mark describes it, and the autopsy findings match.
She was — the autopsy shows — the first autopsy and then the second autopsy that we did shows that Kathleen was beaten up before she was placed in the tub and drowned. There was blood around. Whoever would have done this would have gotten blood and water on himself. And this occurred sometime in the early morning Sunday morning, a time when three-and-a-half years ago, there wasn't really a search for an alibi because the feeling was that she had died sometime on Monday.
VAN SUSTEREN: And of course, there was at least — it was noted, maybe it was in the coroner's investigation, or at least some point, that there was no forced entry. But then Mark, now we go back to what you learned yesterday about the locksmith. And of course, this is our, you know — our suspicion based on what we know about Drew being a — having locksmith equipment.
FUHRMAN: Well, Greta, can I say this, though?
VAN SUSTEREN: Yes.
FUHRMAN: It would be nice if we found something that didn't focus the attention on some act of Drew Peterson. I mean, when we go through these things, just like Michael Baden does the autopsy, when I go through these things, I'm not omitting objects that, you know, exonerate Drew Peterson. They all seem to inculpate him. Every time we look at something, it is drawing us closer and closer to a conclusion. So I'm not sure hypothesis or theory or really reading the facts as they should have been read in 2004 is a little more accurate. I will say this...
VAN SUSTEREN: I mean, I don't disagree with you, Mark. I guess it's just that, like, I'm so scandalized and horrified by the lack of police work there that I'm just sort of...
FUHRMAN: I, too, Greta...
VAN SUSTEREN: ... almost groping, thinking there must be some — you know, that's — I guess why I'm — I'm so scandalized, I guess.
FUHRMAN: Well, Greta, you know, I wonder — you know, if you were going to do this investigation correctly and they said that there was no sign of blood — we don't know how long the suspect that killed Kathleen Savio was in that house. We don't — you can take away the visible appearance blood off carpet and tile, but if you went back and if it hasn't been replaced since 2004, I wouldn't be shocked if luminol would bring up specks of blood on a baseboard, a carpet, a piece of a curtain, a tile, a piece of grout, someplace.
VAN SUSTEREN: Dr. Baden...
VAN SUSTEREN: ... what is your level of certainty that this is a homicide? I know you've said that you believe it's a homicide, but what's your level of certainty that this is a homicide and not an accident?
BADEN: In this instance, cause of death beyond a reasonable medical certainty, I would say over 99 percent that this is a homicide. The autopsy- circumstances of the autopsy seen tells us what happened, homicide. The police investigation tells you who done it. We don't say who done it, but we say it happened. The time of death was early morning on Sunday, which independently goes along with what Mark has been finding out.
And it should have been called a homicide, I think, in 2004. But Greta, what you're shocked at — in this country, in general, if the coroner or medical examiner says the cause of death is accidental, that pretty much ends the police investigation.
VAN SUSTEREN: Well, I guess, you know, I'll tell you, Dr. Baden — and we've talked about this before. When I picked up the — when Steph Watts, our producer, got the autopsy report originally and I got it faxed to me, I looked at it — and as I've said before, I'm not a doctor, but I look at it and I think, This is a homicide. I mean, like, this is — this seems like an easy one, but I had reservation because I just assumed, you know, I must be wrong because, certainly, you know, this couldn't be that people overlooked this.
BADEN: In fairness to the coroner's jury that made the decision of accidental, they didn't have the autopsy report. They had a police officer who told them generally what happened, but not all the details, not all the bruises, not all the injuries. They were misinformed that the black and blue marks were old marks, rather than the sign of a struggle before she died. So the grand jury didn't have as much as you have, Greta.
VAN SUSTEREN: Mark?
FUHRMAN: Greta, could I say...
BADEN: Not grand jury, coroner's jury.
VAN SUSTEREN: Yes.
BADEN: I'm sorry.
FUHRMAN: During the coroner's inquest, the special agent that testified, just his words — they weren't powerful. They weren't definitive. They weren't backed by his personal knowledge or anything else.
FUHRMAN: They were almost lackluster and kind of general, where you could pull what you wanted to out of it, if you chose.
FUHRMAN: But if you didn't want to, it would be OK.
VAN SUSTEREN: You know, if it weren't so serious, I guess the word that I would have used to describe the investigation after reading the coroner's transcript is simply pathetic. But we've got a woman here who died under very suspicious circumstances.
FUHRMAN: I would agree.
VAN SUSTEREN: All right. Jim Hammer, I'm going to go to you since you are the former prosecutor amongst us. Got any thoughts about this?
HAMMER: You know, Dr. Baden is both one of my favorite coroners and good friends, and I — - based on what he said, I'm 100 percent convinced it's a homicide. The problem is, who done it, as he said.
And the most compelling thing that Mark just told us about this supposed confession — and I say "supposed" because we don't know if it's true — is it's never coming into evidence. If she's alive, and I don't think she is, at this point, Stacy could walk into court, and if she stood cross-examination, talk about the confession...
VAN SUSTEREN: But...
HAMMER: ... this guy goes down for murder. But if she doesn't come into court, Greta, all those details (INAUDIBLE) come on. All we have left are the phone calls. I think they're pretty important. But the best piece of evidence may have died, if Stacy died.
VAN SUSTEREN: Bernie, I guess that even if — OK, so we can't have the testimony of Stacy and the pastor. They're both — the pastor because it's hearsay, Stacy because she's not amongst us. Getting records simply that someone didn't make phone calls that night, and let's say that Drew Peterson said that he didn't make any phone calls and there are records of phone calls.
BERNIE GRIMM, CRIMINAL DEFENSE ATTORNEY: Yes. There might be — I mean, Mark Fuhrman reminds me of some detective out of a Raymond Chandler novel. I mean, he does remarkable work, and this gumshoe work is just not easy to do. And he's recreating it, and this really isn't his — this isn't his cross to bear. But let's say there's phone calls to Drew by Stacy in the middle of the morning because she can't find him. So you have the records and they come in, and he sits there with his lawyer and says, OK, so what? I mean, Jim Hammer is right...
VAN SUSTEREN: Well, except for the fact — except for the fact...
VAN SUSTEREN: Except the one thing is he says, I'm home in — he's already told the police, I'm home in bed. Now, let's say the police three years later or whatever it is, two-and-a-half years later, comes up with these weird phone calls in the middle of the night. Why did you tell us you were home sleeping if you got the (INAUDIBLE) Was she sleeping next to you and calling you?
GRIMM: OK. Well, all right. Well, I'll give you an opening statement. Here's my case. He murdered his wife. She — the victim, who's not here, we have records that show she placed three phone calls to him at 2:00 in the morning, for example, and the woman's disappeared, and that's my case. You wouldn't even survive an opening statement.
VAN SUSTEREN: I don't — I mean — but you've got to put all the other information. Let's just — you know, you've got the — you've got the locksmith...
HAMMER: The other big piece...
VAN SUSTEREN: Yes, go ahead, Jim.
HAMMER: Well, the other thing, in any murder case — and Bernie'll say this — it's motive. I mean, when jurors sit in that jury room at the end of the trial, they say to themselves, Is there motive? Is there opportunity? There's certainly opportunity, if these phone calls are right. Is there motive? And I haven't heard that, other...
VAN SUSTEREN: Oh, I'll tell you what — I'll tell you what I...
HAMMER: That's — that's the compelling stuff for a jury...
VAN SUSTEREN: Well, let me tell you...
HAMMER: ... does the guy have a motive...
VAN SUSTEREN: I'll tell you what that is.
HAMMER: ... to do it, if he did. Go ahead.
VAN SUSTEREN: Well, wait. I'll tell you.
FUHRMAN: There's plenty of motive.
VAN SUSTEREN: This is the disturbing thing, is that they had gone through divorce, but in about a week after her death, they were supposed to do the property settlement. And there were also some life insurance policies that, at least according to her family, she had — she — that unbeknownst to Drew, that she had transferred them to her children. But you've got the fact that this police officer is about to lose half his assets and property...
HAMMER: There's also the stalking. Am I right? I don't want to mix up the two cases. Wasn't there the stalking reports that...
VAN SUSTEREN: We'll go back to Mark on that.
VAN SUSTEREN: Go ahead, Mark.
HAMMER: Go ahead, Mark.
FUHRMAN: Greta, you know, the thing that — we have to go back to 2004, if we're all thinking about this in the proper terms. Let's just go back there for a moment. Let's say that the police do the job properly. You don't believe alibis of wives, girlfriends or mothers. So what do you do? You check certain things that you can check — cell phones, phone records, because you ask questions. Where were you last night? I was asleep all night. Didn't go anywhere? Didn't talk to anybody? No, nobody. You check those phone records. When those come back as a lie, you confront them separately. You get one to actually roll over on the other or you get conflicting...
VAN SUSTEREN: That's assuming they're around and alive. Let's bring in Ted.
FUHRMAN: But wait a minute. Wait a minute.
VAN SUSTEREN: Go ahead.
FUHRMAN: We're not done yet. We're not done yet because even if they don't crack, you use that information and that lie to get a search warrant for the house. Now you go in there. Now you find certain items that might still have forensic material on it. And this is only two days after the homicide.
VAN SUSTEREN: Yes, but the problem is...
FUHRMAN: But you first have to look at it as a homicide.
VAN SUSTEREN: But the problem is we're in 2007.
FUHRMAN: I know.
VAN SUSTEREN: I totally agree.
FUHRMAN: That's the problem.
VAN SUSTEREN: Ted, you're also a former detective before you joined the other bad side, the lawyer side.
TED WILLIAMS, CRIMINAL DEFENSE ATTORNEY: Well, let me just say this case — I agree with Michael Baden and everybody on the panel that you may be able to show the manner and the cause of death, but you're going to have a terribly difficult time in trying to determine that — a nexus between Drew Peterson and this so-called death.
The fact about it is we don't — even if you found forensic now in the house there, the fact about it is these two people lived in that house. The mere fact that you're talking about what someone else told, as we've already said, that's not coming into evidence. And unless you've got some corroborating evidence, which is highly unlikely here, you're not going to be able to convict Drew Peterson because he made phone calls and he may have lied about an alibi. You're going to need more than that.
VAN SUSTEREN: But you know what? I've seen convictions on far less. This is a circumstantial case, and what you have here, at least from a prosecutor's standpoint, you have — you have a motive, money, and you've got a hostile relationship. You've got opportunity. And you've got — and the possibility of an alibi — I was home sleeping with my bed — next to my wife in bed, and phone records perhaps — and this is all just, you know, perhaps, disproving the alibi. I've seen convictions on far — you know, far less...
HAMMER: I'll tell you what makes it stronger, Greta. If it happens, and again, I'm going to say right now I don't know if this guy is guilty. It looks really bad for him.
VAN SUSTEREN: Me, either. Me, either.
HAMMER: He's presumed innocent. Having said that, if a prosecutor has enough in both of these cases and could indict both together, then they buttress one another. Then you paint the picture through your case charge of a guy who reacts a certain way when a woman leaves him...
VAN SUSTEREN: And let me...
HAMMER: ... who gets aggressive...
VAN SUSTEREN: Let me...
HAMMER: ... who stalks, and who finally kills. That's a powerful argument I'd make to a jury.
VAN SUSTEREN: All right. We're going to go to break, but I just want to say one thing, is that this is all of us discussing, and to echo what Jim just said, we have no idea if this guy is guilty, but there is reason to be enormously suspicious and certainly to be very disappointed in the investigation back in March of '04. But you know, we're a bunch of lawyers sitting around talking how we would be if we were sitting around a barroom, almost.
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