updated 6/24/2004 10:55:31 AM ET 2004-06-24T14:55:31

Guests: Justin Falconer, Leslie Crocker Snyder, Gloria Allred, Gary Casimir

DAN ABRAMS, HOST:  Coming up, I‘ll talk to the juror kicked off the Scott Peterson case today.  He says he thinks Peterson is innocent. 

(BEGIN VIDEOTAPE) 

UNIDENTIFIED MALE:  If you gave me, you know, the information I‘ve gotten so far and—you know and asked me to go in and deliberate it now, there‘s no way that you could possibly convict him. 

ABRAMS (voice-over):  Justin Falconer, formerly juror number five, joins us live and takes question from our all-star legal panel.  Why was he dismissed?  Why wouldn‘t he convict Scott Peterson?  What‘s the prosecution doing wrong? 

The program about justice starts now.  

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  Coming to you from California all this week.  First up on the docket tonight, a bombshell in the Scott Peterson trial.  A juror dismissed 14 days into the case.  Peterson‘s lawyers have got to be sorry juror number five will not be deliberating the case.  It started when the juror, Justin Falconer, had a brief encounter with Laci Peterson‘s brother last week.  For the first time we can show you this videotape totally un-obscured.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  (UNINTELLIGIBLE) lose (UNINTELLIGIBLE).

(END VIDEO CLIP)

ABRAMS:  Falconer told the judge that he was talking about Brent Rocha‘s camera shot and joked that he wouldn‘t be on the—quote—“news today.”  Monday the judge ruled there was no misconduct on either Rocha or Falconer‘s part.  Yesterday on this program after we saw the transcript of the conversation with the judge, we asked about other questions by the judge, where the juror, Falconer, made it clear he was talking to his girlfriend and some friends about some of the coverage. 

The jurors are instructed not to talk about the case with anyone.  I said that might be grounds to dismiss.  Maybe the judge watched the program last night, because today he reversed course after calling each juror in to chambers one by one.  He decided to release Justin Falconer and replace him with the first alternate. 

So what happened, and why is he so unimpressed with the prosecution case so far?  Justin Falconer, previously known as juror number five joins us now.  Thanks a lot for taking the time.  We really appreciate it. 

JUSTIN FALCONER, DISMISSED FROM PETERSON JURY:  No problem.  Thanks for having me. 

ABRAMS:  So let me start—I mean let me start by letting you explain what was happening with this conversation in chambers where the judge was asking you about what you had seen, and you had said that your girlfriend had told you about some of the coverage.  You say that wasn‘t talking about the witnesses, right? 

FALCONER:  No.  It had nothing to do with you know evidence or testimony or anything like that.  It was—and it wasn‘t just my girlfriend.  It was you know friends in general.  They were pretty much just giving me a hard time because of all the things they were saying about me on the news.  And it wasn‘t you know testimony related and it wasn‘t evidence-related.  It was just they were having a lot of fun with the different things they were saying. 

ABRAMS:  Do you know why you were dismissed from the case?  I mean do you know what the official reason was? 

FALCONER:  I‘m pretty sure it‘s because I‘m a distraction.  Well, I know I‘m a distraction to this case and I understand completely why they did it.  I mean I‘m getting so much attention because of this that I expected it.  And I mean I didn‘t—I never intended for this to happen, but you know it did.  And it just—I expected this to come.  And I mean I honestly don‘t blame them at all.  I—at this point I wouldn‘t want me on the jury either. 

ABRAMS:  But I don‘t understand.  I mean a distraction, I mean I‘ve got to tell you just as a legal matter, and maybe they didn‘t even tell you what the reason was, I would just be surprised if they would dismiss you just for being a distraction.  I would think that they would have to have something more, some sort of misconduct or something.  Did the judge indicate that to you at all? 

FALCONER:  No, no, not at all.  It was just—you know, it got to the point, you know, with all the coverage that we were being rushed up on.  So, when you‘re sitting in there you know together talking, what are you talking about?  You‘re talking about me.  Because, you know, I‘m getting all this attention.  And so you know we weren‘t talking about the case or anything like that.  It was just that—you know it was a distraction.  I mean all these people were focused on me and everybody‘s running up to me and asking me for statements, and I became pretty popular pretty quick.  And you know, so I understand 100 percent why I‘m not here anymore. 

ABRAMS:  All right.  We‘ll bat around the legal issues later.  Let me ask you about how the case is going for the prosecution.  I‘ve got to tell you, I was really stunned by your perception of the case.  You simply think that these prosecutors have been going nowhere with this case, right? 

FALCONER:  Well—I don‘t know where they‘re going.  And I think that‘s you know one of the things that—you know, they‘re coming up with this information and they‘re giving up all this information.  And, you know, I don‘t know where it‘s leading.  He‘s not—I don‘t know where he wants us to go or why I‘m being told certain things or why, you know, I‘m being you know shown these—or I‘m hearing testimony from certain people.  Where is he going with this? 

And I‘m sure if, you know later on down the road, I‘d probably know.  But as of right now, I have no, you know no idea where he was going with it.  And his way of doing it is just—it‘s pretty confusing and hard to follow because he, you know he goes in one direction and then has...

ABRAMS:  Yes.

FALCONER:  ... to you know go into another direction.  And then he comes back and talks about something else.  And so when you‘re following him along with something and you‘re thinking OK, we‘re going somewhere, all of a sudden he goes into something else.  And you never really revisit what he originally was going towards, and I kind of—it‘s hard to follow. 

ABRAMS:  Yes, no, look, I‘ve made comments about—to that effect about this prosecution so far, that I don‘t think that they‘re going about it in the right way.  But I‘ve also heard you say in your press conference that, you know, at this point, based on what you‘ve heard—and you‘ve heard the opening statements.  You‘ve heard 13 days of testimony.  You‘re pretty confident based on what you know now that Scott Peterson is innocent. 

FALCONER:  Well, I didn‘t say that.  More—it‘s—if—well, the question was asked if we deliberated today, would I convict Scott Peterson and absolutely not.  The prosecution hasn‘t shown me any reason yet—well, they‘re not going to, obviously, now either, but they haven‘t shown me any reason to convict him.  I mean, everybody who came up to, you know to testify, you know, even though they might have said you know they were concerned about certain things, they still you know said a lot of nice things about the guy.  And, you know—I just don‘t you know see where he was going with that.  I mean he‘s trying to, I guess, you know get into his behavior and stuff.  But I don‘t see where he was going with it. 

ABRAMS:  And Justin, you pointed out that you think that the fact that people have talked about the way he treated Laci was important to you.  Tell me about that. 

FALCONER:  Well, I mean if you‘re distanced from somebody and you don‘t want to be around them anymore, you know it‘s obvious.  You know and it‘s not just obvious to people.  You don‘t, you know it‘s not something that you—at least in my experience, you know, you‘re not super nice to them.  You‘re not going out of the way for them.  You‘re not you know—you‘re trying to avoid them. 

And if you‘ve got somebody on the side that you‘re more interested in, you know, you‘re not—you‘re going to be kind of, in my opinion, distant.  And from the sound of it, that wasn‘t the case at all.  I mean he did everything he could to provide for her.  He did—you know everybody that testified said that they loved him to death because of the way he treated her and made it you know very clear that he treated her very well and provided beyond his means in some cases.  And so, you know, when you sit there and say, you know, well he‘s acting funny, he treated her really good, and that said a lot to me. 

ABRAMS:  You know I‘m going to ask you to comment on some of the evidence presented by the prosecution.  But before I go to break, I just want to ask you about one key piece of evidence.  The fact that Laci Peterson‘s body is found 90 miles away from their home, and that‘s the same place that Scott Peterson said that he went fishing that day, Christmas Eve, did that bother you? 

FALCONER:  Well, I mean it‘s something that I wanted addressed at the right time.  But there were other things before that that, you know, that eventually that would have bothered me, I think, depending upon how the testimony went.  But as of right now, I wasn‘t too concerned with that.  I wanted to know more, you know, how he—you know, if the prosecution‘s asking us to believe a specific thing, which was that he placed Laci in the boat and took her out on the 24th and, you know, and disposed of her body. 

And if you could answer that for me, you know, yes, he did that, this is how he did it, well, then, you know that‘s going to kind of—that‘s going to answer that question right there, how she ended up there. 

ABRAMS:  Yes.

FALCONER:  But if you can‘t prove to me why or how he did it, you know, and there were witnesses that I didn‘t get to hear, obviously, you know that saw him there with the boat and you know that boat is not that big.  You‘re going to notice you know a person in there, whether it‘s covered in a tarp or not.  You know and just from seeing the pictures—you‘ve got to tell me how he did that. 

And if he would have showed me how he did that, said look, this is what he did, this is how he hid her, even though the witnesses were around, they couldn‘t have possibly seen her because you know she was situated as such, well, then, that would have answered the other question. 

ABRAMS:  Yes.

FALCONER:  But if you can‘t even answer that, you can‘t show me convincingly how he did that, then I don‘t know how Laci got there, but they need to figure that out. 

ABRAMS:  Yes, well...

FALCONER:  Because if it wasn‘t that way...

ABRAMS:  ... I‘ve got to tell you—I can tell you they‘re not going to have answers to a lot of those questions. 

Let me take a quick break here.  When we come back, I want to go through some more of the evidence that the prosecution has presented.  Many would say that they are presenting an overwhelming case.  Not according to one of the 12 people who was sitting in that jury box for the first 13 days of the trial. 

We‘ll go over some more of the key pieces of evidence and then our legal panel will join in, maybe have a few questions for Justin Falconer as well.

We are back in a moment. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, he was kicked off the jury in the Scott Peterson case this afternoon.  He had said that based on what he‘s seen so far, he doesn‘t think Peterson is guilty.  We continue our conversation with the man once known as juror number five, coming up.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back with a man who until today had been known as juror number five in the Scott Peterson case.  He was dismissed from the case today, and Justin Falconer is back with us talking about the case.  He had said that he has been unimpressed by the prosecution‘s presentation so far, and I was just asking him about where the bodies were found and the fact that it was 90 miles away, and Mr. Falconer is saying that he would have been willing to listen to that, but he wants to know more about exactly how it happened. 

Let me ask you about another issue, Justin, and that is Scott Peterson‘s alibi.  He says that when his wife went missing that he goes fishing and he returns home and just finds her missing and then calls and says that she has disappeared.  And, yet, witnesses have testified he wasn‘t much of a fisherman, that he didn‘t know exactly what he was fishing for, and that he told a couple of people that he was golfing and not fishing.  Didn‘t that disturb you?

FALCONER:  You know, I listened to all that, and, you know, and you know that was obviously on my mind.  But, I think one of the key things for me that I heard Scott say in the taped interview with Brocchini when he first went to the police station was that I just wanted to get the boat out.  And that struck me, because if I have a new toy that I haven‘t gotten to play with yet, I want to get it out, too.  And although there might be an ulterior motive like with fishing or you know going out there to kind of use it as an excuse, the thing that he said that got to me was that I just wanted to get it out. 

And so he just wanted to get it out on the ocean.  Now, if he‘s out there fishing for something, OK, you know that‘s fine, too.  Maybe he was.  But I took that as I think the main thing he wanted to do was just get the boat out there and, you know, use it.  And that‘s—that kind of...

(CROSSTALK)

FALCONER:  ... the whole thing...

ABRAMS:  What about telling...

FALCONER:  ... I‘m sorry.

ABRAMS:  What about telling some people that he went golfing that day? 

FALCONER:  Well, I mean, you‘ve got to put yourself in his shoes.  A lot is going on right there.  A lot of things are being said.  Everybody is asking different questions.  At that particular time when he told like the neighbor, granted, you know there wasn‘t a whole lot of people around, but he‘s probably got a lot going through his mind and to ask something like what were you doing today?  Well, I was golfing, I was fishing, it, you know it could go either way. 

I mean I don‘t necessarily know if he was lying or not.  But I think that if he had gone into like a more detailed story, like, yes, I was at this country club, I was with this person and then found out later that, no, he was fishing, well, that would have been a lot different.  But just to sit there and say you know I was golfing or I was fishing, either way.  You know, he told the police where he was.  And he told them exactly where he was and where he took his boat.  And that—you know, if I‘m trying to hide something and I just went out there and I dumped somebody‘s body, I‘m not going to tell you where I dumped it. 

ABRAMS:  But that could be right because people saw him there and he felt the need to come clean, because people would have been able to I.D.  him there,  I guess the prosecutors would say...

FALCONER:  And that‘s—well, that‘s a whole other thing, too, and if

the prosecution, you know had—you know later on, obviously, they

probably would have brought that up.  But there were witnesses that saw him

there.  And that, for me, I wanted to hear the witnesses, I definitely did,

and I wanted to hear what they had to say.  But you know they‘re for the

defense, which tells me that they‘re on the defense‘s side, which was that

·         that that was a small boat.  If you‘re going to have a person in that boat that is you know—that size with anchors tied to her and all that stuff, that‘s not something that somebody is not going to notice. 

ABRAMS:  What...

FALCONER:  And if you‘re going to go out there with...

ABRAMS:  I apologize for interrupting.  Go ahead. 

FALCONER:  Go ahead...

ABRAMS:  I was going to say about his behavior.  He‘s acting in a way that a lot of people are describing as kind of calm and cool and not particularly distressed, and even Laci‘s mother was commenting on how odd she found his behavior, that he used the word “missing” right off the bat.  Any of that bother you? 

FALCONER:  You know what?  You‘re getting into you know are you going to convict a person on the way that they act about certain things.  You never know how people are going to act when something traumatic happens to them.  You know and I know in my situation I don‘t know exactly how I would react.  But I know in stressful situations I get focused.  Now, he‘s an unemotional person.  They have testified to that.  He didn‘t show a lot of emotion. 

He didn‘t—you know he wasn‘t one of those guys that you know I guess they said wore his emotions on his sleeve.  So, you know how would you react?  It‘s a confusing situation.  It‘s a distressing situation, where all of a sudden somebody is missing, and you don‘t know where they are.  And you know you don‘t know what‘s going on and everything is flooding so fast.  And let‘s not forget, he had a lot of other stuff on his mind, too. 

You know, where all of a sudden all these people are showing up now, and, OK, wait a minute because I‘ve got some stuff over here on the side that I‘m not too sure I want people knowing about.  And there was a lot going on in that man‘s head...

ABRAMS:  All right.  I‘m going to ask you about the affair in a moment.  Justin Falconer, I‘ve got to tell you the prosecutors are listening to this interview, gulping, saying what do we do now.  We‘ll talk about that later in the program as well.  More with the man who had been one the jurors in the Laci Peterson trial coming up... 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

FALCONER:  It was difficult to follow what he‘s saying.  And I think that you know—and I‘m speaking for myself.  I‘m not speaking for anybody else in the jury.  But speaking for myself, it is difficult to follow what he‘s doing.  He‘s not giving us—he‘s bouncing around and it was difficult for me to follow what was—you know, what did he want us to think here, what did he want us to think there. 

(END VIDEO CLIP)

ABRAMS:  That is former juror number five, Justin Falconer, who joins us live again to talk about the Peterson case.  He has been dismissed today from the case.  I said before the break that I wanted to ask you about Amber Frey, the woman with whom Scott Peterson was having this affair.  And you know you were making the point that, you know, look, he‘s having an affair.  That‘s one thing.  Murder is something else.  What about the fact that—and we heard this in opening statements—that he tells Amber Frey that his wife is dead, and he tells her he‘s going to be able to spend a lot more time with her in January?  Did either of those things bother you about the relationship with Amber Frey? 

FALCONER:  Guys say stupid stuff to women all the time.  And, you know, as much as I wanted to hear the testimony from Amber, you know, as to how that was—what context that was in, you know, how that was said and everything, I didn‘t get that chance.  So, you know, I definitely wanted to hear what she had to say towards that, you know.  But I—honestly, I didn‘t—I can‘t give it too much thought because I don‘t know. 

ABRAMS:  What about sort of the big picture, and that is all the things that I‘ve mentioned to you together, and that is where the bodies were found, his alibi, his behavior, the affair, the timeline.  All of these things taken together still at this point unpersuasive to you? 

FALCONER:  Well, yes.  I mean the—I haven‘t heard everything.  So, I mean, I heard up until this point, and what—so I can make a—you know I can make a judgment on that so far, which is obviously only, what, a quarter of the case.  So—but there‘s so many questions that—I mean that you know if they answer one particular question, you know, yes, OK, now we need to start thinking about this.  OK, how did you know he do this and this and this and why.  But they weren‘t answering those questions and I never got those questions answered...

ABRAMS:  You...

FALCONER:  ... and so...

ABRAMS:  One other point that was brought up and then I‘m going to let the panel in, that you heard testimony about was the clothing.  A lot of testimony about what clothing Laci Peterson was wearing, and prosecutors are trying to show Scott Peterson says she‘s wearing dark black pants and a light shirt.  And when she‘s found, the clothing that she‘s wearing is far more similar to the clothing she had been wearing the night before.  The prosecutors, of course, suggesting that he kills her the night before, that she—and she never changed her clothes in the morning, as Scott Peterson claims. 

FALCONER:  (UNINTELLIGIBLE) well, I mean, I understand that, but at the same time, I don‘t—you know, you don‘t know what she was doing when she left.  She could have changed.  I don‘t know.  But one of the things that I did notice in there, when I was going through the whole thing, was that the outfit that they said that she was wearing the night before, in one of the pictures of the clothes hamper you can clearly see the shirt that‘s dangling down and it looks just like the shirt that they‘re talking about. 

So I mean if they‘re trying to say that she was in the same outfit, she might have been.  But you know maybe the same color pants, but apparently she had more than one outfit that...

ABRAMS:  Yes.

FALCONER:  ... fit those color descriptions.  So you know there‘s the shirt right there in the hamper, you know, so I don‘t know.  I didn‘t get enough—I‘m not far enough in that I can you know comment on that.  But I know that it wasn‘t touched...

ABRAMS:  All right...

FALCONER:  ... you know as much by the prosecution. 

ABRAMS:  Let me—if you don‘t mind, I‘m going to ask my panel to join in the conversation now—criminal defense attorney Gary Casimir, former New York judge, Leslie Crocker Snyder, and Gloria Allred, who was in the courtroom.  She‘s a victims‘ rights attorney and she is the attorney for Amber Frey. 

Now I‘m going to ask everyone and remind everyone that Justin is a guest on this program and he is entitled to his opinions and we are all going to be polite, as we often are not to each other. 

(LAUGHTER)

ABRAMS:  So I want to make sure that everyone is kind to Justin, who is a guest on this program.  Judge Snyder, I‘m going to start with you.  Do you have any questions for Justin? 

LESLIE CROCKER SNYDER, FORMER NEW YORK JUDGE:  Well, I do.  But I‘d

like to preface my question by saying this is probably the worst example of

jury selection by the prosecution that I‘ve ever seen, no offense to you,

sir.  Obviously, you relate to Scott Peterson in every way and I‘m not

certain you really could be fair to the prosecution.  But have you actually

·         did you listen to the judge‘s instructions preliminarily when he obviously told you that you were not to speak to either side, and that you heard from the lawyers that this was a circumstantial case and it would go in piece by piece?  Perhaps not very well, it appears, and that you had to keep an open mind throughout the trial?  Did you hear those instructions, and did you agree that you could follow them? 

    

FALCONER:  Absolutely.  I mean the thing about it is that Scott Peterson is an innocent man until proven otherwise.  And so when you‘re sitting here, you know, trying to listen to everything, even the prosecutors at the beginning of the case, when I was first in there getting interviewed, they made it very clear that Scott Peterson is an innocent man until we prove to you beyond a reasonable doubt otherwise.  And so, you know, you‘re asking me or you know people are asking me how do you feel about this.  Well, I had an objective point of view, I did.  But he‘s an innocent man.  Prove to me otherwise, and I will you know obviously...

(CROSSTALK)

CROCKER SNYDER:  All right, hang on.  I‘ve got to take a break here, and the panel will have more questions.  Justin Falconer has been kind enough to agree to stick around a little bit longer, and we‘ll be back with more of our coverage of the Scott Peterson case and more with juror Justin Falconer who was dismissed from the case today.  He‘s got some strong opinions (UNINTELLIGIBLE).

(COMMERCIAL BREAK)

ABRAMS:  Until today he was a juror in the Scott Peterson case.  Now he‘s a guest on this program talking about what he heard, and he is unimpressed with the prosecution‘s case.  More with juror Justin Falconer coming up, but first, the headlines. 

(NEWS BREAK)

(BEGIN VIDEO CLIP)

FALCONER:  I know this to be true.  I‘ve got a kid myself.  Pregnant women are crazy.  And so, you know, 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 you know run a marathon. 

(END VIDEO CLIP)

ABRAMS:  Dismissed juror Justin Falconer who was on the case in the Scott Peterson trial until today and he is joining us along with the panel.  Before I go back to the panel, Justin, the comments you just made, you know, it does sound like you really do identify with Scott Peterson as sort of a guy, you know, a guy who wants to take his boat out fishing, a guy who was dealing with a pregnant wife, a guy who was having an affair. 

FALCONER:  Yes.  It‘s what guys do, I guess.  I mean I‘m a younger guy.  You‘re talking about all these you know things that seem you know crazy for somebody, I don‘t know why.  But, yes, I guess I kind of do. 

ABRAMS:  All right.  Gloria Allred is the attorney for Amber Frey and she‘s been watching a lot of the testimony.  Gloria, do you have any questions for Justin? 

GLORIA ALLRED, AMBER FREY‘S ATTORNEY:  Well, I do.  And it‘s a question I asked him a little bit earlier today, Dan, and I‘d like to re-ask it.  Because I was concerned, Justin, when you said—when I asked you earlier today what about testimony from Amber Frey that, of course, she hasn‘t testified yet, but the prosecution outlined it in their opening statement that Scott Peterson told her, before Laci went missing, that he had lost his wife, and these would be the first holidays without her.  Does it seem as though that‘s a weird coincidence? 

Now, when I asked you that, you said you hadn‘t heard any evidence of that.  And yet, it was outlined in the prosecution‘s opening statement.  Weren‘t you paying attention to that?  Didn‘t that make an impact on you? 

How important do you think that would that be if she testified...

ABRAMS:  All right.

ALLRED:  ... to that, and Shawn Sibley, her friend, also testified that Scott Peterson told her that as well? 

FALCONER:  Well, I think at the point that it actually became evidence, then I would have—you know I would have definitely had an, you know, an opinion of that.  But it wasn‘t entered as evidence right away...

ALLRED:  And what would be your opinion of that, if in fact it became evidence? 

FALCONER:  I—well, I don‘t know, because I haven‘t heard it, and I‘m not—I can‘t say, you know.  Like I said before, it has—I would love to have been there to you know hear what she had to say, and I definitely would have listened to it, and you know however I felt about it at that particular moment, that‘s how I would have felt.  But in the opening statement, that‘s what it was.  It was an opening statement.  It wasn‘t evidence.  And I—you know, like I said, I would have loved to have heard it...

ABRAMS:  All right.

FALCONER:  ... and you know known the situation around it.  But I didn‘t get that. 

ABRAMS:  All right.  Gary Casimir, go ahead. 

GARY CASIMIR, CRIMINAL DEFENSE ATTORNEY:  How are you doing?  Justin, I know a lot of people seem to be coming down on you.  But you know you just brought some insight into this.  You‘re following the rules.  Opening statements are not evidence, and he was actually you know playing by the rules and waiting for all the evidence.  I have two questions, really. 

One is, is your sense of the prosecution‘s case, that if putting little pieces of gossip and conjecture together to make their case and that‘s why you‘re having a problem following the prosecution‘s case right now?  And the second question is as you sit there as a juror watching Scott Peterson, what‘s your sense of him?  Do you have an idea of whether he‘s guilty or innocence?  What‘s the jury‘s sense like overall of him? 

FALCONER:  Well, I can‘t comment on what the other jurors are saying, because I don‘t know—or what they‘re thinking, because I don‘t know.  But you‘re looking—I‘m looking at him and he‘s been going through this for over a year and a half.  He‘s heard everything twice.  And so at what point, you know really, in my mind, I‘m asking at what point do you just start to get numb?  He‘s, you know, obviously got two very good attorneys who are gabbing in his ear telling him things that he wants to hear and—which is you know good for him.  But it‘s hard for me to, you know, to look at him and expect him to act a certain way.  I couldn‘t do that.  And then... 

ABRAMS:  Let me ask you, Justin.  Is Scott Peterson the kind of guy you‘d like to go out for a beer with? 

FALCONER:  I don‘t know.  I don‘t know him that well.  Obviously, I‘ve just been sitting there watching him, but I don‘t know.  From testimony, you know, I really honestly don‘t know. 

CROCKER SNYDER:  Well Mr.—may I ask you a question? 

ABRAMS:  Judge Snyder, go ahead. 

CROCKER SNYDER:  Mr. Falconer, wouldn‘t you agree that the best thing that‘s happened to the prosecution and the worst for the defense is that you got excused today? 

FALCONER:  Yes, definitely.

CROCKER SNYDER:  And isn‘t it a fact also that it appears that absolutely nothing—it appears that the prosecution could do would prevent you from identifying with Scott Peterson?  You seem to like the guy.  He‘s kinds of like your age and you can relate to everything he does, a little you know extra woman on the side.  So it would be very hard to impress you.  And maybe you didn‘t start off with a completely open mind. 

ABRAMS:  All right.

FALCONER:  Well, no, that wasn‘t true.  I think it‘s getting a little bit skewed you know with this, oh, you like him.  He‘s the kind of—first off, I would never have a girl on the side.  That‘s not me.  And you know he—I don‘t really—if you‘re going to ask me if I relate to the guy, he‘s about my age and he‘s an outgoing guy, which I am, too.  So I suppose, yes, you know we could relate that way. 

CROCKER SNYDER:  Yes, but I mean what about this thing about pregnant women act bizarre?  You know one day they‘re feeling one way or the other?  I mean so you kind of like feel maybe a lot more oriented toward the male point of view than the female point of view.  That seems pretty clear. 

FALCONER:  Well, I can‘t comment on a female point of view.  I can only comment on what I know, and I‘m a man.  So, I‘ve seen, you know, I‘ve had many friends who have had babies.  I‘ve had—got one myself.  And I know that you know pregnancies are you know up and down.  You get good days.  You get bad days.  So...

ABRAMS:  All right.  Hang on a second...

(CROSSTALK)

ABRAMS:  Hang on.  Hang on...

(CROSSTALK)

CASIMIR:  He didn‘t answer the second part of my question. 

ABRAMS:  All right.  I‘ve got to take a quick break.  Everyone will get a chance again.  Justin Falconer is being a good sport sticking around with us.  Come back in a minute.  We‘ll also talk about some of the testimony from today.  It got pretty heated.  Stick around.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back with juror number five, who was dismissed today from the Scott Peterson case.  Justin Falconer has stuck around with us for most of the hour here.  He‘s been answering some of the questions of our panelists.  Before we go back to the panel, Justin, you had said before the break that you have a child of your own, and you were talking about sort of what pregnant women act like, in your experience.  What experience did you have with a pregnant woman in the case of your child? 

FALCONER:  You know, a pregnancy is a pregnancy.  You know we were pretty young.  You know she definitely had her—you know she was emotional, and, you know, but she was very strong, too, you know.  So there were days when she didn‘t want to get up, and then there was days that she did, and she worked, you know, all the way through pretty much her pregnancy. 

And so I know that you know she—just from being that, and my friend‘s, you know, girlfriend being pregnant, too, I went through both of their children, I watched both of them be born and I was pretty much with them through her pregnancy as well.  And you know she was strong as well.  I mean there were days when she didn‘t want to get out of bed, but then there were other days when she was up and running all over the place...

ABRAMS:  Yes.

FALCONER:  ... and it was, you know, it‘s a daily thing, so it‘s—you‘re up and down. 

ABRAMS:  And that‘s one of the issues that‘s come up in this case is could Laci Peterson, would Laci Peterson have taken a walk in her neighborhood. 

All right.  Gary Casimir, you wanted to get back in again.  I should just—for those are you just joining us...

CASIMIR:  Yes...

ABRAMS:  ... Justin Falconer unconvinced by the prosecution‘s case so far.  Go ahead, Gary. 

CASIMIR:  I want to talk about lack of being convinced for a second Dan.  I want to ask him—he was mentioning before he thought the prosecution‘s case was a little scattered.  And I want to ask him why do you feel—is it because the testimony is more about little pieces of gossip here, trying to make out a whole case or what makes it scattered for you?  What aspect of the case‘s presentation makes it scattered for you? 

FALCONER:  Well, I think it‘s the presentation in general.  I mean because he‘s going—he‘ll go down one path and then he‘ll bring you back to, oh, I should have asked you this a minute ago and bring you back to something totally different and then never go back to that path and he‘ll continue on somewhere else.  And it‘s hard to follow.  And I‘m sitting here trying to follow this, going OK, why would you add that in there?  Where exactly do you want me to go with this?  And when you hear it at first, you know, you kind of get along with it, but then all of a sudden after a while it starts piling up and you‘re asking yourself where is that going.  And then the gossip thing, you know, I think that—there was a couple of things that I didn‘t appreciate.  That I kind of looked at...

CASIMIR:  What things?  What?  What?

FALCONER:  Well, there was a couple of things that you know—I think

the police officers were when—I think it was—it was the two police

officers, I‘m sorry, I can‘t remember their names right now.  But they were

·         they had reported that you know Scott had thrown the flashlight down and cursed.  That bothered me.  And it bothered me because it was something that they hadn‘t mentioned before, except for a couple of days before. 

It‘s like, oh, I just remembered this.  And then when they asked him well, did you say anything on the first night, they said, yes, I told somebody.  But it was never in a report, it was never in you know testimony or anywhere else.  That bothered me because...

ABRAMS:  But Justin...

FALCONER:  ... it made it seem like they had an agenda.

ABRAMS:  But Justin...

(CROSSTALK)

ABRAMS:  ... but how does that relate to, for example, his alibi and the questions about that, and where the bodies were found and what he‘s telling to Amber Frey?  How does the police‘s behavior, do you think, impact all of that? 

FALCONER:  Well, it has a huge impact.  I mean look at, you know Brocchini.  He admittedly made tons of mistakes.  And if you‘re making these kinds of mistakes during this, what else did you make the mistake?  It was mentioned in testimony yesterday that he actually got a wiretap after the whole meringue incident, that he didn‘t see meringue on the first tape and that in fact it was on the day before. 

Well, he got a wiretap for this and you know a judge allowed the investigation further, and come to find out it wasn‘t even true, that meringue was mentioned on that tape in fact, cookies and meringue, which he says in the video was actually true.  So, these mistakes are huge.  I mean...

ABRAMS:  Let me just explain to my viewers what you‘re talking about, is that in the opening statement the prosecutors said that Scott Peterson had told the police officer that there was discussion about meringue on a Martha Stewart program that Laci was watching when he left the house.  Of course, the prosecutors believed Laci was already dead.  The defense then shows the tape of Martha Stewart from that day, and lo and behold, there is a mention of meringue on the very day that he went missing—all right, I think that Justin has lost IFB for a moment. 

Let me go to the panel just to talk about this for a moment.  All right...

CASIMIR:  Dan, I just, you know...

ABRAMS:  Go ahead, Gary. 

CASIMIR:  Dan, I just want to mention that this is part of the problem with the prosecution‘s case.  I know it‘s very easy—everybody think Scott‘s guilty.  I don‘t care what anybody says, if you speak to 100 out of 100 people, 90 thinks he‘s guilty.  The problem with the prosecution‘s case is a jury is sitting there, I think, waiting for the smoking gun, waiting for the other shoe to drop, something to show, yes, he did it.  And right now they‘re hearing everything they‘ve heard before, he‘s a philanderer, he‘s a bad husband, he‘s you know...

CROCKER SNYDER:  But give him a chance Gary.

CASIMIR:  ... he was out fishing. 

CROCKER SNYDER:  Gary, this is a circumstantial case, it is going to be one little piece built on another.  It does sound like it‘s going in very badly and not impressing the jury, and I don‘t consider this juror to be a typical juror, because he‘s explaining everything away.  But that‘s the nature of a circumstantial case.

CASIMIR:  But the problem with circumstantial cases, as you say Leslie, is also this.  First of all, they‘re already up to 42, I think 37 or 40 witnesses, it‘s easy to get lost.  If the jury...

CROCKER SNYDER:  Absolutely. 

CASIMIR:  And that‘s part one.  Part two, the problem is it can be explained away.  That‘s why it‘s circumstantial. 

ABRAMS:  But, Gary...

(CROSSTALK)

ABRAMS:  But Gary, this—I mean this juror is basically parroting everything Mark Geragos would say...

CROCKER SNYDER:  Exactly.

ABRAMS:  ... if he were on this program.  I‘m not attacking him for it.  I‘m just saying that if things are going that badly, that‘s not about the prosecution‘s case.  I mean I‘ve got to believe that no matter what the presentation was based on the evidence that they have, no matter how they presented it, this particular juror never would have been convinced. 

(CROSSTALK)

CASIMIR:  Well I don‘t know.  If you walked in there and showed some blood or DNA, maybe this witness would have changed his mind...

ABRAMS:  Yes, but wait...

(CROSSTALK)

CROCKER SNYDER:  Gary, he knew...

CASIMIR:  ... changed his mind.

ABRAMS:  But there is no...

CROCKER SNYDER:  ... he knew there wasn‘t going to be that kind of evidence...

CASIMIR:  Well, they have a problem...

CROCKER SNYDER:  ... and he agreed he could keep an open mind.  I‘m not saying they have a problem or they don‘t have a problem.  There‘s a lot of evidence in this case, and you can see that this juror really never had an open mind.  He relates to Scott Peterson, and he explains everything away.  The only thing that would convince him is a smoking gun...

(CROSSTALK)

CROCKER SNYDER:  ... and everyone knew that didn‘t exist. 

CASIMIR:  I think there are a lot more jurors, Leslie, on that panel waiting to get away from just the conjecture and things that have multiple explanations.

CROCKER SNYDER:  Well if all they‘ve got is conjecture, which I don‘t believe...

CASIMIR:  Sure it does.

CROCKER SNYDER:  ... then they‘re not going to get a conviction, obviously.  They‘ve got to have evidence, but it may be a slow build-up of boring evidence. 

(LAUGHTER)

CASIMIR:  Well they—I see where you‘re coming from, Leslie...

ABRAMS:  All right...

CASIMIR:  ... I think they‘re going to have a problem. 

ABRAMS:  Let me get a final word in here.  We‘ve got Justin back.  All right, Justin, final word on the case.  Assuming that the prosecutors were able to provide evidence of everything that they said in their opening statement, still wouldn‘t have been enough for you, right? 

FALCONER:  I can‘t say that, because I don‘t know.  There—I had questions and, you know, definitely there were questions that I had that I needed answered.  But I don‘t know, because, you know I—up until, you know, recently I didn‘t even have an opinion.  I just wanted to hear everything.  I wanted to mull it over in my brain and then just you know figure out what I came up with.  But the prosecution is—you know, there were questions that I had that needed to be answered. 

ABRAMS:  And very quickly, you did not come into this case having a sense that Scott Peterson was innocent when you started? 

FALCONER:  Well, you know what?  I didn‘t have an opinion either way.  And it was actually the prosecutors that sat down, along with Geragos and the judge, who said, you know, that made it very clear that you know Scott Peterson is an innocent man, and he stands before you know us, to be you know prosecuted.  The prosecution is going to try to tell us that he‘s not.  And if the prosecution convinces us that he‘s not...

ABRAMS:  Yes.

FALCONER:  ... well, then, you know obviously he‘s not.  But he‘s an innocent man sitting there right now and they made that very clear to us when, you know, or at least to me...

(CROSSTALK)

FALCONER:  ... when I was in there. 

ABRAMS:  I‘ll tell you one thing.  The defense attorneys...

UNIDENTIFIED FEMALE:  Dan...

ABRAMS:  ... are sorry that you are not on this case anymore...

CASIMIR:  Oh yes they are.

ABRAMS:  Justin Falconer, thanks a lot for being a good sport and sticking around for the entire hour.  I really do appreciate it. 

FALCONER:  No problem.  Thank you. 

ABRAMS:  We are going to take a break.  We are also going to thank the panel.  Thank you to Leslie and Gary and Gloria. 

When we come back, what happened in court today?  It got so heated they had to take a break at one point because Mark Geragos was going after one of the detectives so hard on the stand...

(COMMERCIAL BREAK)

ABRAMS:  Some tense moments inside the courtroom today as Mark Geragos cross-examines the first detective to arrive at Scott and Laci Peterson‘s home.  We‘ll tell you what happened, coming up.

(COMMERCIAL BREAK)

ABRAMS:  Welcome back.  This is usually where I do my “Closing Argument”, but we wanted to leave a little more time for the juror there, so instead we‘re going to go to Jennifer London who is at the courthouse.  She‘s going to tell us what happened with regard to testimony today in the Scott Peterson case today—Jennifer.

JENNIFER LONDON, MSNBC CORRESPONDENT:  Hi Dan.  When testimony did begin today, Detective Al Brocchini back on the stand facing questions from Mark Geragos.  Now, Geragos talking specifically in the beginning about the night of 12/24/02 when Brocchini arrived at the Peterson home, Geragos asking about the walk-throughs that the police conducted, talking about the suspicious items we‘ve heard about, the mop and bucket, the crumpled rug, the white rags on the washing machine. 

Now remember, Al Brocchini yesterday testifying that Scott Peterson said he took the rags out of the washing machine to wash his clothes, Brocchini saying that he checked the washing machine, saw some clothes in there on the spin cycle.  So Geragos saying—quote—“how did you know the clothes were spin-dried?”  Brocchini saying, well, they were stuck on the side and Mark Geragos saying, did you use your detective skills for that?  Brocchini saying, look, I am 46 years old and I have washed clothes before.  This exchange, Dan, getting so heated that the judge calling for an immediate recess, saying both sides need to calm down.  After lunch Brocchini back on the stand under more testimony, and he will return tomorrow. 

ABRAMS:  Jennifer London, thanks very much.  Appreciate it. 

Now it‘s time for “Your Rebuttal”.  Last night, we talked to one of the attorneys suing Wal-Mart for gender discrimination.  A judge has certified a class of nearly 1.6 million women.  I was concerned that if they win the lawyers will walk away with a lot of cash, while the women will walk away with a few bucks at most. 

Megan Kearney from Philadelphia writes, “You have not taken into consideration the type of money it takes to enable 1.6 million to file such a suit.  These lawyers have already spent more money than you and I would like to even think of building this suit.”  Let them recoup their costs, but there is something wrong when the lawyers walk away with millions while each plaintiff get change. 

Walt Watenberg from New York City, “If they can get Wal-Mart to play straight, pay a decent wage, give them a chance in management, that‘s a win.  I don‘t care if they don‘t win a penny.”

Roger Kiser from Brunswick, Georgia, “There we go again.  Another case where the lawyers will end up getting millions of dollars and the women will each get a $3-check.  When are people going to smarten up?”

Craig Fields from Raleigh, North Carolina responds to my “Closing Argument” where I said the president and others in the administration are talking like lawyers when they try to argue the 9/11 staff report supports the idea that there were—quote—“long established ties between al Qaeda and Saddam” because it just doesn‘t.

Quote—“I don‘t care about links, connections and relationships.  I care about if Iraq and al Qaeda actually worked together to produce some terrorist acts.  I have links with people who have crimes, who committed crimes, but I‘ve never worked with them.  Should I be arrested?”

Finally, I was a guest on “The Tonight Show” with Jay Leno on Monday night.  Many of you watched.  I appreciate all the kind e-mails that many of you sent in.  Last night I ran out of time to finish this one from Jess Woodward in North Carolina.

She talked about what I was wearing.  She says, “That outfit you had on was awful.  It was just plain nerdy.  That terrible shirt and khaki pants, with a shlubby jacket was unredeemable, especially for a New Yorker.  You would have looked super in a black leather jacket, jeans, and a cool turtle neck or open-collar shirt, excluding the one you wore.”

All right.  Let‘s see, Jess, black leather and a turtleneck during summer in Los Angeles?  And that says nothing about the cheese factor for me to wear that on “The Tonight Show”.  Maybe Brad Pitt or Matt Damon could pull that off, not the dorky legal guy.  But clearly Jess had some second thoughts after I read the beginning of her e-mail last night. 

Here‘s what she wrote us today.  “You read part of my letter at the end of your show.  I had no right to criticize what you chose to wear.  It was very unkind for me to write that.  I only know your TV persona and you have every right to dress as you like, even nerdy.  Please accept my sincere apology.” 

Thank you, Jess. 

Up next, “HARDBALL” with Chris Matthews.  Thanks for watching.  See you tomorrow.

END   

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