updated 10/27/2004 10:28:23 AM ET 2004-10-27T14:28:23

Guest: Beth Karas, Chris Filippi, Joe Tacopina, Gloria Allred, Bill Fallon, Alice Weiser

ANNOUNCER:  DEBORAH NORVILLE TONIGHT.

DEBORAH NORVILLE, HOST:  The defense rests.  After 20 weeks and almost 200 witnesses, Scott Peterson‘s double murder trial nears an end.  Just how convincing were Peterson‘s lawyers in arguing his innocence?

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  We have a lot of confidence in the whole team and—it‘ll be good.

(END VIDEO CLIP)

NORVILLE:  Can Scott‘s own mother persuade the jury her son is not a killer?

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Would she lie for him when his life is on the line?  One would think that most mothers would.

(END VIDEO CLIP)

NORVILLE:  Tonight, defending Scott Peterson.  Will jurors buy the defense‘s explanation for his erratic behavior, his conflicting alibis and his string of deceptions, or will the defendant‘s own words help to convict him?

(BEGIN AUDIO CLIP)

SCOTT PETERSON, CHARGED WITH DOUBLE MURDER:  I don‘t think I want a picture of me in the press playing golf.

(END AUDIO CLIP)

ANNOUNCER:  From MSNBC world headquarters, Deborah Norville.

NORVILLE:  And good evening, everybody.  Scott Peterson‘s defense team rested its case today.  And boy, it didn‘t take long.  His lawyers presented evidence for just six days.  They called only 14 witnesses.  And compare that to the prosecution‘s case.  It lasted 19 weeks, 174 witnesses.  Now, the defense‘s case did include a private investigator, five law enforcement officers, Mr. Peterson‘s parents, as well as three experts.  The prosecution will now call eight rebuttal witnesses, and that all begins tomorrow, with closing arguments set to begin on Monday.  And the case could go to the jury as early as next Wednesday.

Scott Peterson, who never took the stand in his own defense, is charged with murdering his pregnant wife, Laci, as well as their unborn son.  He faces the death penalty if convicted.  And today, Scott Peterson‘s brother predicted that would not happen.

(BEGIN VIDEO CLIP)

JOHN PETERSON, SCOTT PETERSON‘S BROTHER:  ... the truth stands on its own and that we got enough of our case when the prosecution‘s case was on.

UNIDENTIFIED FEMALE:  So you feel good about the defense, John?

JOHN PETERSON:  Absolutely, because it‘s the truth.  And the truth shall set Scott free.

(END VIDEO CLIP)

NORVILLE:  Well, tonight, we‘re going to dissect the Scott Peterson murder trial.  What worked?  What didn‘t?  How much of an impact did all of those recorded conversations between Scott Peterson and his former mistress, Amber Frey, have on the case?  And what can we expect in closing arguments?  And did the prosecution prove it?

Joining me now, Court TV correspondent Beth Karas, who has been covering the trial from the get-go.  Also, Chris Filippi, who‘s been covering the trial.  He‘s a reporter and anchor for KFBK radio in Sacramento.  Also tonight, starting out our legal team, attorney Gloria Allred.  She of course, represented Amber Frey during the trial, former prosecutor Bill Fallon and former criminal defense attorney Joe Tacopina.

And we‘re going to get to everybody, but I want to start with the reporters.  Beth, you‘ve been out there.  You‘ve been in the courtroom, watching this case.  And among the last witnesses were Scott Peterson‘s mom and dad.  Would one expect Mrs. Peterson to do anything other than to say why her son acted the way he did?  And she really tried to explain some of this odd behavior he had.

BETH KARAS, CORRESPONDENT, COURT TV:  Well, she did.  Both parents were focused primarily on the day he was arrested.  They gave explanations for certain behavior of Scott Peterson that helped avoid putting Scott on the stand.  She answered the question of why he had almost $15,000 in cash on him.  She says she gave it to him.  It was, in part, money she was paying him for another son to buy Scott‘s truck, in part money she was reimbursing him.  She gave him a lot of cash so he didn‘t have to wait for a check to clear, she says.

And then his father, among many things, said that on the day Scott was arrested—he was arrested close to noon on April 18, a Friday—Lee Peterson, the father, had a tee time at 8:00 AM with Scott and two other sons.  They were all going to play golf.  This goes to show that Scott wasn‘t fleeing to Mexico.  He wasn‘t fleeing with a bundle of cash.  He had the bundle of cash from his mom.  She gave the reason why.  He was going to play golf, decided not to because he didn‘t want to have pictures taken on the golf course when he knew these bodies had washed ashore, had yet to be identified.  It wouldn‘t look good if they were his wife and his son.

NORVILLE:  Yes, I want to put up the list of items that were found in the car at the time that Scott Peterson was arrested because a couple of things that are in there relate directly to what you‘re talking about.  Specifically, the list starts with the brother‘s drivers license.  And Mr.

Peterson, Scott‘s father, says there was a plausible explanation for that.

KARAS:  That‘s right.  He said that he encouraged Scott to use his brother‘s license because there was a residency requirement for a discount, a green discount, and it would have been a significant savings, under $100 but more than $20.  And although the prosecutor said, you know, he had $15,000 cash on him, and you‘re worried saving, you know, under $100, $40, $50?  And he said, Look, I‘m paying, he‘s not, and I‘m cheap.

But it is questionable whether or not on that ID was enough to get the discount that the father says.

NORVILLE:  Yes.

KARAS:  But that did go unchallenged.

NORVILLE:  We‘re going to ask the lawyers about that in just a moment.

Chris, I want to ask you about some of the other witnesses that were presented.  There was a forensic accountant who specifically addressed the Petersons‘ financial situation.  He said, based on his examination of their financial records, they weren‘t in the kind of money troubles that the prosecution had portrayed Scott Peterson to be in.

CHRIS FILIPPI, REPORTER/ANCHOR, KFBK RADIO:  That is exactly right.  It was actually one of the defense witnesses that may have made an impact during this case.  You can‘t say that for all the witnesses they put on the stand.  This was a former IRS investigator who looked at Scott Peterson‘s books.  His basic conclusions were that Scott Peterson‘s credit card debt was not as bad as the prosecution had betrayed it.

Perhaps even more importantly than that, though, he looked at Scott Peterson‘s business.  The business, Trade Corp., in Modesto was having some very serious difficulties.  It was basically a startup.  but the main point out of that is that Trade Corp., the parent company, was willing to absorb the losses for that business for four years.  So that‘s certainly where—that was a couple of important points for the defense.

NORVILLE:  If they scored points there, they probably lost them with that OB/GYN that came out and predicted the gestational age of the unborn child, based on what Laci said to a girlfriend when her home pregnancy test came forward.  Why didn‘t they get a doctor to look at the medical records that shows the last day of her monthly period?

FILIPPI:  It‘s a great question because Mark Geragos, the lead defense lawyer, has proven himself to be very well prepared throughout this case.  In fact, at times, it‘s looked like he knows the case better than the prosecutors know it.  But in this particular case, his witness was not very well prepared.  It was a meltdown on the witness stand.  This guy had to admit that his conclusions were based on assumptions, some of them based upon information that was not even admitted as evidence, even asked the prosecutors to cut him a break, at one point.  This guy was supposed to be the key witness for the defense‘s case.  In the opening statements, Geragos said he was going to prove...

NORVILLE:  Yes.

FILIPPI:  ... that Conner Peterson was born alive.  He fell short.

NORVILLE:  OK, let‘s get the lawyers in on this.  And Joe, I misspoke.  I made you into a former criminal defense attorney.  We know you‘re currently practicing as a criminal defense attorney.

JOE TACOPINA, CRIMINAL DEFENSE ATTORNEY:  Right.

NORVILLE:  And so let me ask you...

TACOPINA:  Former prosecutor.

NORVILLE:  Former prosecutor.

TACOPINA:  Recovering prosecutor.

NORVILLE:  Recovering prosecutor, now out there defending the guys on the other side of the table.  Either way, when we look at the evidence that was introduced, specifically with this notion of a lot of cash and a plausible explanation, a driver‘s license, another plausible explanation, is that going to hold water with the jury?

TACOPINA:  You know, I think that stuff would hold water, Deborah.  I mean, but that‘s not the stuff that‘s convicting Scott Peterson, quite frankly, in my opinion.  I mean, you know, having explanations for why he has cash or, you know, why he had a car registered in his mom‘s name, you know, there are innocent explanations for that, the ones that were proffered.  But I don‘t think this jury‘s convicting Scott Peterson because he registered the car in his mother‘s name or had cash in his car or even maybe was going to flee.  I mean, I don‘t even think—I think what happens here is the prosecution‘s case had to prove Scott Peterson murdered Laci and Conner.  And the defense‘s case was—according to the opening statement, was going to show exactly the opposite, that not only was Peterson not guilty but that he was stone-cold innocent, and through the medical expert, was going to show that Conner born alive.  If Conner was born after the 24th of December, there‘s no way Scott Peterson committed this crime.

There was a big wind-up for that in the defense case.  I mean, that‘s what everyone was holding their breath on.  I mean, not only did it fall short, I think it could cut against the defense because, you know, when jurors start laughing at your defense witness...

NORVILLE:  Yes.

TACOPINA:  ... it‘s not a good thing.  And I still think there are—there‘s still a good argument—Geragos, I‘m sure, will get to this later.  There‘s still a good argument Geragos is going to be able to present regarding failing to meet their burden of proof beyond a reasonable doubt.

NORVILLE:  Well, we‘re going to get to that in just a second.

TACOPINA:  Yes.

NORVILLE:  But you‘re right, they did laugh when Dr. March was on the stand.  Another thing that got another reaction was, again, a tape played by the defense.  And Bill Fallon, I want to ask you to react to this after we do play this.  This was a conversation that took place just hours before Scott Peterson was arrested, a conversation that he had with his brother.  And it‘s interesting to see what he‘s worried about as he speaks to his brother, Joe Peterson.

(BEGIN AUDIO CLIP)

SCOTT PETERSON:  Yes, they know I‘m onto them.  I stopped on the highway, and they, you know, stopped behind me.  They were just...

JOE PETERSON:  God almighty.

SCOTT PETERSON:  I think I better skip it.  I don‘t think I want a picture of me in the press playing golf.

JOE PETERSON:  Yes.  No.  I—you‘re right.  Yes.

(END AUDIO CLIP)

NORVILLE:  Bill Fallon, he‘s worried about being photographed playing golf?

BILL FALLON, FORMER PROSECUTOR:  Deborah, this is why I love you. 

You‘re the juror I want...

(LAUGHTER)

NORVILLE:  I‘ll never get on a case!  They don‘t want me!

FALLON:  No, no.  But this—exactly.  I mean, but this is exactly what you‘re saying.  What is going on here?  Don‘t worry about your dead wife.  Don‘t worry about your dead baby.  Worry about this image.  In fact, that‘s the type of thing—the prosecution‘s absolute best witness in the whole case is Scott Peterson.  It‘s Scott Peterson on audiotape.  It‘s Scott Peterson on—when he gives all of his big interviews to the media.  And that‘s what I think.

And Joe, I agree with you that the—I think the sputtering at the end of the case—I blame the prosecution for sputtering, entering their case.  But I think the end of the defense case, if the jurors go back and they say, Where‘s the beef of this big case we were going to have, they might actually hold that against Geragos.  And I know it‘s illegal to hold that he hasn‘t come forward with it, but it‘s going to be the big question because Geragos left them with, We‘ve got the evidence, and we‘re going to show you.  Now they‘re going to think, where they don‘t have it, What‘s wrong with it?  And maybe the prosecution was more convincing than they were.

NORVILLE:  And that‘s—that‘s where these tapes—it‘s so weird that it‘s the defense presenting this.  I‘m not sure, Gloria Allred, what the defense is trying to get across when they played this section of the tape, which was a conversation, again, that Scott had with his brother at the time that the bodies had been found.  And he is waiting to find out what the positive identification is.  Here‘s a listen.

(BEGIN AUDIO CLIP)

JOE PETERSON:  I‘ve also heard that they can identify them pretty darn quick—two to three days, you know?

SCOTT PETERSON:  Yes.

JOE PETERSON:  Oh, gosh!  Scott, I‘m sorry about...

(CROSSTALK)

SCOTT PETERSON:  ... her?

JOE PETERSON:  Yes.  That‘s what I think.  I think they know already, but they don‘t—you know, they don‘t know how to go about it or they‘re telling them to retest them.  I don‘t know.

SCOTT PETERSON:  Oh, I think they‘re just holding off because they don‘t know who it is anymore.

JOE PETERSON:  Who it is?  Yes.  That could be.

(END AUDIO CLIP)

NORVILLE:  Gloria, he‘s saying they‘re holding off because they don‘t think they know who it is.  But he had a pretty good suspicion who it was.  Why would the defense have played that tape?

GLORIA ALLRED, AMBER FREY‘S ATTORNEY:  Well, I think there are a couple of reasons, Deborah, that they would have played the tape.  For one thing, Scott Peterson says on the tape recording that he‘s being followed by private investigators and that the reason he doesn‘t want to play golf is because he doesn‘t want a picture in the press of him playing golf.  So in other words, that goes to the argument of the prosecution that he‘s trying to evade police.  He says private investigators.  Now, the argument can be that that‘s very self-serving, that at this point, he most likely knew that his phone calls were being wire-tapped.  So what he was saying was perhaps what he hoped would one day play in a court of law, if, in fact, he ended up there.  And it looked increasingly likely, at that point, that he would.

In addition, he‘s saying that he knows that‘s not Laci, so again, trying to set up a reason why perhaps he didn‘t drive up north to the Berkeley marina...

NORVILLE:  Right.

ALLRED:  ... to see about the bodies.  But you know, I think that since nobody knew, a reasonable person, a grieving husband would want to drive right up there and see whether or not that‘s his missing wife and his son.  But that‘s not what Scott Peterson did.  And he came across with a very flat affect, with no emotion...

NORVILLE:  Yes.

ALLRED:  ... about these bodies that had washed up.  And it‘s kind of scary.  I think it worked against the defense, rather than...

NORVILLE:  And Beth Karas, I‘m wondering...

(CROSSTALK)

NORVILLE:  Beth, how did the jury react as they heard those tapes played in court Monday?  What was their visual reaction to this tape?

KARAS:  Well, you know, they make expressions sometimes.  I didn‘t discern anything when the tape was being played.  It was a very short tape, only three pages of a transcript put up on a big screen in front of them.  But they didn‘t seem to really be buying Jackie and Lee Peterson.  One of the jurors, the man in the front row who‘s a teamster, juror No. 8, even made an expression of surprise when Jackie talked about this dormant account with $10,000 in it that she had basically forgotten about, that had Scott and Laci‘s name on it.

But I also wanted to add, when this tape was played—it was 7:08 in the morning on April 18, and Scott decides not go golfing that day.  Perhaps it was true, you know, then when Lee Peterson testified that he really was going to go golfing that day.  This really does help the defense in that sense.  But Scott had been missing to the police for a couple of days, from April 14, when Laci washes ashore, until the 16th.  And the police finally found him on the 16th because they went back up on the wires, on the phones, on the 14th of April.  They had been down from February 4 to April 14.

NORVILLE:  Yes, but you know, in his defense, he hadn‘t been arrested for anything.  He was under surveillance.  And there‘s no obligation for Scott Peterson to hold up a placard and say, Hey, cops, here I am.

We got to take a short break.

KARAS:  Right.

NORVILLE:  When we come back, I want to talk about those eight rebuttal witnesses that we‘re expecting to be presented to the jury.  And we‘re going to look ahead to just how important the closing arguments will be, what the attorneys have got to say to persuade the jury that their version of events is correct.  Stay with us.

(BEGIN VIDEO CLIP - may 5, 2003)

MARK GERAGOS, SCOTT PETERSON‘S ATTORNEY:  We‘ve set the bar extremely high, and that‘s to prove that Scott is not only factually innocent but to figure out exactly who it is did this horrible thing to Scott‘s wife and to Scott‘s son and to their grandson.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

NORVILLE:  Now time to look ahead to closing arguments in the Scott Peterson murder trial.  Those arguments are scheduled for the beginning of next week.  We‘re joined tonight by Court TV‘s Beth Karas, Chris Filippi of KFBK radio in Sacramento, Amber Frey‘s attorney, Gloria Allred, former prosecutor Bill Fallon and criminal defense attorney Joe Tacopina.

Chris, you‘ve been covering this trial.  What have you heard as far as who these rebuttal witnesses might be for the defense?

FILIPPI:  The list remains sealed, so we don‘t know everybody that they‘re going to call.  It‘s going to be very brief.  In fact, court won‘t even convene until the early afternoon.  It‘s expected to take a day.  It‘s likely they‘re going to focus on some of the questions about the physical evidence that the defense raised in its case.  I certainly expect the cement experts to be called back to the stand.  We could well hear more about Scott Peterson‘s financial records from the prosecution perspective.  They‘re just going to try and tie up some loose ends going into closing statements.

NORVILLE:  And Beth Karas, what about some of these loose ends that I‘ve been waiting to have tied up ever since the opening arguments by Mark Geragos?  He talked about people who saw Laci being dragged into a van, a woman who saw a suspicious van across the street.  Those witnesses never came before the jury.

KARAS:  Right.  Now, that‘s a good question, but the judge gave really wide latitude to Geragos on his cross-examinations, and he was able to get in what these witnesses told the police through the police.  So their statements came in.  And it was kind of a win-win for Geragos because he didn‘t have to spend the time or money to get the witnesses here, and he didn‘t have to expose them to a cross-examination.  He got their statements in basically unchallenged.  Although they weren‘t admitted for the truth, they‘re out there.  And you know he‘ll argue that they were truthful.

NORVILLE:  Joe Tacopina, I‘m curious about what the jury is going through right now.  When this case is given to them, is there only one option that they will have, and that is, first-degree murder, capital punishment case?  Or is it possible that the judge is going to give them the option of a lesser murder charge?

TACOPINA:  No.  This is going to the jury as a winner-take-all scenario, Deborah.  I mean, it‘s going to be first-degree murder.  I mean, Beth‘s been out there.  I don‘t know if she has any insight to that.  But I mean, I don‘t know if lesser included charges fit here.  He either did it and he‘s guilty of first degree murder or he didn‘t.  Unless the defense and the prosecution agree on throwing in some sort of felony adultery charge into the indictment, there‘s really no other scenario, no other sets of charges.  The facts don‘t fit any other charge.

NORVILLE:  Well, Beth, correct me if I‘m wrong.  I understand that first degree murder would be willful premeditated killing—and I think we‘ve got a graphic we can throw up—punishable by life in prison or death penalty.  Second degree murder would be an intentional killing that wasn‘t premeditated.  And the sentence for that would be 15 to life.  Beth?

KARAS:  Yes?

NORVILLE:  Yes, that‘s for you, Beth.

KARAS:  Oh.  Yes, that‘s exactly right.  Now, I‘m telling you the judge is giving second degree murder.  I‘ve done the research on the law here in California.  Geragos doesn‘t want it.  He agrees with you, Joe.  It‘s an all-or-nothing.  They tried it like a premeditated case.  It should go to the jury as an all-or-nothing.  The courts here, the California supreme court, has said the defense cannot ask for an all-or-nothing as a matter of strategy.  If the evidence makes out a lesser, the judge has to give it, even over the objection of the other side.  And so I do believe—we don‘t have the decision yet, but I do believe there‘s only a very, very slight chance this is an all-or-nothing case.  Second degree will go to the jury.

FALLON:  Beth, even if both sides don‘t want it, as I understand it, California‘s a lot like Massachusetts.  Even if both sides don‘t want it, if the judge sees a version of this case that somehow tactically—both sides don‘t want it, but he sees a version that a jury could come back second, he gives second on his own.  Is that the same in California, would you say?

KARAS:  That‘s what—that‘s my understanding.  The judge basically has to give it, if he sees the evidence will support it.

NORVILLE:  And Chris, is the reason for this...

ALLRED:  Deborah...

NORVILLE:  ... that the judge is—I‘m going to get to you in one second, Gloria.   Is the reason for this, Chris, that the judge is looking and thinking, We got a real potential for a hung jury here, and we have just devoted 20 weeks of expensive court time to this case?

FILIPPI:  Twenty weeks, and who knows how much money, all the time of the jurors, all the time of the witnesses, everybody that‘s been involved in this case.  This judge is desperate for a decision that does not result in a mistrial.  It‘s the reason the jury‘s going to be sequestered once the deliberations begin.

But keep in mind the prosecution‘s evidence, too.  I mean, they have been arguing a premeditated case.  We heard about Amber Frey and Scott Peterson telling her that this was going to be the first Christmas that he was going to spend without his wife.  We heard about the purchase of the boat and the fact that he bought it the same day that he was questioned by Amber Frey about whether he was married or not.  So it‘s a very interesting question, but it seems like the judge is headed in that direction of giving the jury more options.

NORVILLE:  Gloria?

ALLRED:  Yes, Deborah, you know, it‘s not a slam, bam, sure thing for the prosecution, if first degree and a second degree murder charge are, in fact, given by the judge.  In fact, there‘s also a risk to that, and the risk is if the jury can get hung—in other words, be divided on whether they should come back with a first degree murder conviction or a second degree.  Of course, they can always come back with acquittal.

That‘s exactly what happened in a case that I was just involved in, where I represented the family of a transgender murder victim.  And in the criminal case, the jury deadlocked.  Apparently, all of them wanted to convict on a murder charge, but they couldn‘t decide whether it should be first degree or second degree.  Therefore, it was a hung jury.  Therefore, the whole case has to be retried.  I hope that doesn‘t happen here.

NORVILLE:  What about the fact that Scott Peterson never took the stand, physically, although we certainly heard plenty of him through those audiotapes, Gloria?

ALLRED:  Yes, I think that that‘s a problem for the defense.  And the reason is this, that I think that a jury would expect to hear from Scott Peterson, a person with no prior criminal history.  And why have they not heard from him?  The only thing they‘ve heard from Scott Peterson is Scott Peterson on those tapes with Amber Frey, the tapes that Amber recorded at the request of the police.  And Scott comes out as, well, a liar, beyond what most people have ever heard.  And I think that‘s the reason, by the way, that he didn‘t take the witness stand.

Then we also, though, had something interesting happen last week, which was Michael Cardoza going in there, doing a mock cross-examination...

NORVILLE:  Yes.

ALLRED:  ... with Scott Peterson in jail.  But now Scott Peterson doesn‘t take the witness stand.  Even though that happened outside the courtroom, it may be that the jurors, if they‘re listening to the news, hear about that, and they may think that Scott Peterson failed the practice cross-examination.

NORVILLE:  Well, we‘re going to get to that...

(CROSSTALK)

ALLRED:  ... that‘s why he‘s not up there testifying!

NORVILLE:  Hold on one second.  We‘re going to take a break and continue with you lawyers in just a second.  But Chris and Beth are going to be leaving us, so I want to ask both of you—you‘ve been in the courtroom, you‘ve seen the jury reaction, which is something we don‘t get.  What do you think the jury‘s thinking right now?  Chris, you first, then Beth.

FILIPPI:  You know, you look at some of these jurors—you always kind of get in trouble when you‘re trying to judge body language, but you look at the eye contact with Scott Peterson.  I think there‘s some jurors, especially some female jurors, who right now have it out for Scott Peterson.  They don‘t like him.  They don‘t like the way he was lying.  And I tell you, I really do think there are some members of this jury who are looking for any reason to make a conviction in this case.

NORVILLE:  And Beth, your thoughts?

KARAS:  Scott Peterson is not going to be acquitted.  I don‘t know if he‘ll be convicted of first or second degree murder.  It could be a hung jury.  But I promise you, 12 jurors are not going to acquit this man.

NORVILLE:  All right.

KARAS:  I‘ve watched those jurors.  No way.

NORVILLE:  Beth Karas, Chris Filippi, we thank you for your time.  But we are going to continue with my other guests when we come back, and we‘ll listen to some of the many recorded conversations played during the trial.  Here‘s one of them between Scott Peterson and Amber Frey when it was taped just six weeks after Laci Peterson disappeared.

(BEGIN AUDIO CLIP)

SCOTT PETERSON:  I just need to tell you how much I care about you.  I desire so much to be, you know, for the rest of our lives, your best friend, your biggest comfort and the second most joy in your life.  I want to be those things so bad for you.

(END AUDIO CLIP)

(COMMERCIAL BREAK)

(NEWSBREAK) 

(BEGIN AUDIO CLIP)

SCOTT PETERSON, DEFENDANT:  Amber, are you asking if I had something to do with this?

AMBER FREY, FORMER MISTRESS OF PETERSON:  You never told me you haven‘t.

PETERSON:  Yes, I have.  I had nothing to do with this.  You know that.

(END AUDIO CLIP)

NORVILLE:  That was Scott Peterson talking with Amber Frey just a few weeks after Laci Peterson disappeared.  Even though Peterson never took the stand in his own defense, his words rang out many times in court during the trial.  More than 300 recorded phone calls were played for the jury. 

So how did those tapes play out for the jury? 

Back with our panel to talk about this.

I want to ask all three of you, would the prosecution have had much of a case at all if they didn‘t have those audio recordings? 

FALLON:  They would have case here.  I‘m jumping in right in right now. 

They would have had the case, but I think that the strength of this case is the premiere witness here, unlike what everybody thought the first few weeks.  They thought it was going to be Amber.  The premiere witness here is Scott Peterson, from his audio recordings with her, to his video testimony that he gave to everyone who would listen. 

This jury got to know this guy in a way that no jury I‘ve ever—no case I‘ve ever prosecuted that I could ever present a defendant to a jury, even when they took the stand. 

Deborah, I just have to say, there is no way that Geragos should have put this guy on, because, if I were the prosecutor, I would be salivating that I could give the thousands of inconsistencies.  I could do everything they did wrong in this whole case, with no emotion, no piecing it together and they could have had him on for two weeks. 

(CROSSTALK)

NORVILLE:  Well, of course, you wouldn‘t have those tapes. 

(CROSSTALK)

NORVILLE:  Go ahead.  Joe, you first.

TACOPINA:  Deborah, these tapes were absolutely not the arsenal that the prosecution needs and wanted them to be in this case. 

As a matter of fact, there was one point where I actually believed these tapes were doing better for the defense.  Scott Peterson—it was a given that is he a real low-life, that no one likes him.  And that is the prosecutions‘ trump card here.  There‘s no question about it. 

But the one thing 250-plus conversations did here for Scott Peterson is, time and time again, as creative as the detectives and Amber Frey were in trying to get him to slip up and admit he had something to do with this, he never even came close.  Those tapes do not help. 

Here is what helps the prosecution.

(CROSSTALK)

TACOPINA:  Scott Peterson lied about his relationship, lied to many people about many things about his actions and went fishing 257 hours away from his house on Christmas Eve. 

NORVILLE:  And lied about that, too.

TACOPINA:  And that is the same spot—that is the same spot that his wife and unborn child happen to wind up in.

(CROSSTALK)

NORVILLE:  I got to let Scott in here, because he didn‘t get to testify in court.  But we got to hear him on the phone. 

Here is one conversation that took place on New Year‘s Eve, when he said he was in France. 

Here‘s Scott Peterson with Amber.

(BEGIN AUDIO CLIP)

FREY:  How was your New Year‘s?

PETERSON:  Its good.  I‘m just, everyone is in the bar now.  So I came out in the alley, a quiet alley.  Isn‘t that nice?

FREY:  Yes, it is.  I can hear you.

PETERSON:  Hee-hee-hee.

FREY:  Very good.

PETERSON:  It is pretty awesome.  Fireworks there at the Eiffel Tower, a mass of people all playing American pop songs.

(END AUDIO CLIP)

NORVILLE:  Gloria, there wouldn‘t have been that witness of Scott Peterson if Amber hadn‘t been bold enough I guess to go to the police and make these recordings.  What does that one right there tell you? 

TACOPINA:  That he is a liar. 

ALLRED:  Well, the idea that he is engaging in this kind of pillow romantic talk with Amber while his pregnant wife is missing and while there is a vigil on that very same day where people are praying and searching for the return of his missing wife, Laci, it‘s just outrageous. 

And it shows this.  First of all, the whole relationship with Amber supports a motive for murder.  That is what can be argued.  Secondly, it shows that he had a cold heart toward Laci.  He didn‘t seem to care that she was missing.  It didn‘t seem to disturb him.  He‘s still continuing a relationship with Amber. 

Third, she gave him numerous opportunities, Deborah, to explain, what did you mean when you said you lost your wife, these would be the first holidays without her?  And this is before Laci went ever missing. 

(CROSSTALK)

ALLRED:  If he had an innocent explanation, he didn‘t give it.

(CROSSTALK)

ALLRED:  And so the jury can infer that any answer he might give might tend to incriminate him. 

FALLON:  The reason I disagree with you that these tapes are good is, yes, he denies, but that cold heart that Gloria just said is the most important thing.  The jury sees somebody who has such conscious disregard for his wife‘s disappearance and I say death and his baby‘s.  And that is what is going to kill this guy. 

I am going to tell you that I don‘t know if it going to be hung jury.  I‘ve been saying for a long time, it is.  But some of these jurors are going to say there is just no way that hee-hee-hee on Christmas Eve, on New Year‘s Eve.  They are not going to accept when your baby, your pregnant wife is missing.  And they are going to say that type of cold heart is somebody who is going to able to do their wife in, their baby in.  This is an improper way.  It is an inhuman way.  It is a cold, criminal, malicious way. 

And that‘s what I think they—that‘s what in these tapes.

NORVILLE:  I think this next tape that I‘m going to play actually speaks to that third element, and that‘s premeditation.  Give a listen to the conversation that Gloria just alluded to. 

(BEGIN AUDIO CLIP)

PETERSON:  You deserve so much better.  There‘s no question you deserve so much better. 

FREY:  Yeah, and I deserve to understand an explanation of why you told me you lost your wife and this was the first holidays you‘d spend without her?  That was December 9.  You told me this and how all of a sudden your wife‘s missing?  Are you kidding me? 

PETERSON:  Yeah, she...

FREY:  Did you hear me? 

PETERSON:  I did.  I don‘t know what to say.  I...

FREY:  I think an explanation would be a start. 

(END AUDIO CLIP)

NORVILLE:  Joe, I know you don‘t think these tapes are going to do it, but that one is real hard to explain away. 

TACOPINA:  That is the tape, Deborah, without question, the one conversation, out of all of these, the one where he admits to saying his wife was missing before she was missing and not having an explanation for it, no question about it. 

But what I‘m saying to you is this.  Come time to look this jury in the eye, there is no—not one juror who is going to vote Scott Peterson man of the year.  That is not what he is on trial for.  He is on trial for murder.  And you have to have evidence other than, he is such a liar.  He said he was at the Eiffel Tower when he was in California.  He lied about his wife.  He lied about his intention to Amber. 

You have five crime scenes in this case, Deborah, five crime scenes, the house, the boat, the warehouse, the marina and the car.  There is not one shred of physical evidence.  That‘s unheard of.  You then have no forensic evidence at all to link Scott Peterson.  You have not one eyewitness that saw him do any of these things he had to do to commit this murder.

There‘s still—don‘t take the victory lap yet if you‘re a prosecution fan in this case.  There is still a lot to do. 

(CROSSTALK)

FALLON:  No, there‘s no victory lap here.  I still think it is going to be a hung jury.  The only thing I‘m hearing from the people in the courtroom is some of these jurors are saying, you are not going home free. 

TACOPINA:  Absolutely.

FALLON:  I think convincing 12 of these jurors is still very difficult. 

I‘m just disagreeing with you about the Scott Peterson that we got is better than anyone I‘ve ever had in a courtroom to get to know a defendant.  And it‘s not just about he is a lying cad.  It‘s so far greater than that.  Just think of this.  If Amber had to testify, they could say, oh, she was my—I‘m a scorned lover.  If he hadn‘t given all those interviews to the media, these people and this jury would not see this man, who is capable of anything and I think they‘ve proved he‘s capable of murder.

(COMMERCIAL BREAK)

NORVILLE:  And it is that media stuff that I think, you know, you hit the nail on the head, Bill, that really kind of helps put Scott Peterson in the place that‘s just hard to explain away.  You can say he was raised to be an unemotional man, and that is why he didn‘t seem broken up on television.

But the interview that he did with Diane Sawyer, and then that was challenged later with some photographic evidence, again, is something that I think will be difficult for the jury to get over. 

Here‘s the clip from that interview with ABC‘s Diane Sawyer. 

(BEGIN VIDEO CLIP)

DIANE SAWYER, ABC NEWS:  Tell me about the nursery. 

PETERSON:  Can‘t go in there.  That door is closed until there is someone to put in there, but it‘s ready.

(END VIDEO CLIP)

NORVILLE:  The nursery was pretty.  It‘s a place I can‘t go.  But here is what the nursery actually looked like.  Scott Peterson‘s nursery at his home was filled with all kinds of items.  There were boxes of materials from his work, it appeared to be.  There were office chairs that had been put in there. 

And when the jury saw that tape, which we are having trouble getting up right now, but we all have seen before, it certainly flew in the face, did it not, Glory, of what Scott Peterson had said in the interview with Diane Sawyer?  We are now looking at the tape, and it doesn‘t look so much like a nursery as much as a storage facility. 

ALLRED:  Well, exactly, or a file room. 

But, in any event, it shows yet again, that Scott Peterson appears to be lying.  I just want to give full credit to my client Amber Frey for having the courage to do what the police asked of her, and that was to tape record all of these telephone calls.  I think that the telephone calls caused a seismic shift in this trial in the way that people looked at Scott Peterson, absolutely went for the prosecution, that is more open to the prosecution‘s case. 

As to the Diane Sawyer interview, also, what‘s important about the Diane Sawyer interview is, he lied to Diane Sawyer about whether or not he even told the police about Amber Frey.  Then we find out he even ends up lying to his own mother about where he is one day.  Of course, he has lied to Amber.  He‘s lied to the police.  This is not a man who knows how to tell the truth about things in this case.

(CROSSTALK)

TACOPINA:  He‘s a liar.

(CROSSTALK)

NORVILLE:  He is a liar. 

(CROSSTALK)

FALLON:  But he is a liar about important things, Deborah.  It‘s not just that he‘s a lying cad.  He is a liar about things.  He didn‘t assist the police.  And I think at least some of those jurors would say, you have an obligation, whether under law or not, a moral obligation to assist the police when your wife is missing, but particularly when your baby is missing.  And people aren‘t going to get over that.

(CROSSTALK)

NORVILLE:  I have got to stop you there, because some of those jurors are also going to say, you have got an obligation, Mr. Prosecutor, to show us some evidence. 

TACOPINA:  Right. 

(CROSSTALK)

NORVILLE:  When we come back, we are going to talk about the evidence or lack thereof, as some on this panel will tell you, in just a moment.  Stay with us.

(BEGIN VIDEOTAPE)

ANNOUNCER:  Up next, they proved he was an unfaithful husband.  But have prosecutors proved Scott Peterson a killer? 

UNIDENTIFIED MALE:  You give a jury a very, very difficult task. 

ANNOUNCER:  Tonight, weighing the evidence.  How will the jury vote?

When DEBORAH NORVILLE TONIGHT returns.

(END VIDEOTAPE)

(COMMERCIAL BREAK)

NORVILLE:  Scott Peterson‘s defense rests its case.  But some are asking of the prosecution, where‘s the beef?  A jury consultant breaks down the case and tells us what to expect next.

(COMMERCIAL BREAK)

NORVILLE:  We have been talking about the Scott Peterson murder trial. 

By this time next week, the defense has wrapped its case, so it should be in the hands of the jury by the middle of next week. 

Back with Amber Frey‘s attorney, Gloria Allred, also former prosecutor Bill Fallon, criminal defense attorney Joe Tacopina.  And joining us as well is jury consultant Alice Weiser. 

Ms. Weiser, I‘m going to start with you.  We welcome you to the program tonight. 

What is going through the jury‘s minds right now?  They were a bit stunned to hear that the defense rested its case.  What are they thinking as they go into the final phase? 

ALICE WEISER, JURY CONSULTANT:  Well, I‘m sure they are very confused. 

They are probably—the consciences are still there.  It‘s the evidence that has to—that one shred of doubt.  I feel, Deborah, that the jury—actually, the jurors are the most important part of the trial.  And when looking for the perfect juror, we would like to find 12 clones of our client.  Needless to say, we couldn‘t.  I think we have a very good mixed jury, though.  I believe there are six men and six women.  They are from all walks of life.  They all are bringing their stories also with them into the courtroom, even though they say they can put things aside.

NORVILLE:  So, what do you think that they are thinking, knowing the backgrounds and having studied the 12 men and women, as you have? 

WEISER:  They are going to look for that one shred of doubt that would make them hold back just a little bit. 

It‘s very possible, unfortunately, that it could be a hung jury.  I think the longer it lasts, the more possibility there is of having a hung juror.  If it lasts a very long time, it would be almost a mistrial.  That could happen.  But I don‘t think the judge will let that happen in this case. 

NORVILLE:  I want to look at some of the things that were promised at the beginning of the case that we haven‘t seen.  We have got a screen that has what the prosecution promised. 

At the outset he said, I‘m going to give you a motive for Scott Peterson to commit this crime.  And the motive was his affair with Amber Frey.  I‘m going to show to you that there was premeditation.  We talked a moment ago about that December 9 conversation he had with Amber Frey.  And I‘m going to disprove his alibi, prove that he wasn‘t up there fishing. 

One thing that he hasn‘t got, though, Joe Tacopina, is evidence, a whole lot of evidence.  You have got a tarp that has got gasoline on it, so there‘s no DNA.  You‘ve got a boat that may or may not have Laci‘s hair.  But he said Laci saw the boat, so that explains the hair.  You don‘t have a whole lot of “CSI” kind of stuff to march in front of the jury. 

TACOPINA:  Right. 

You don‘t have a lot of what they call direct evidence, Deborah.  But you do have a fairly strong circumstantial case.  And a circumstantial case, the judge is going to probably tell this jury in a charge—I‘ve read the California jury charge—that it could be held up to the same weight.  It could be as strong if not stronger than direct evidence, depending on what it is, on what that evidence it is. 

In other words, he will tell the jury with is an example.  You know, you‘re inside and if I come in and I have a rain coat on and I‘m dripping wet, and there‘s no windows in the room, you‘re sitting, but you‘re looking at me, and I just came in from outside, that is circumstantial evidence that it‘s raining outside.  That‘s pretty powerful evidence that it is raining outside. 

So while you have none of that stuff that we talked about—and I guarantee you, you know, that‘s—quite frankly, not to take a shot at the defense in the case, because it‘s easy to Monday-morning quarterback.

NORVILLE:  You bet.

TACOPINA:  It‘s easy to Monday-morning quarterback.

But I will say this.  That‘s why you put the focus on the void in the evidence for the prosecution or the lack of proof in their case.  What they did in this last week, this last six days, quite frankly, in my opinion, did nothing to advance the defense ball.  As a matter of fact, again, when you put on the expert to try and present your defense that this baby was born on December 29 based on like voodoo or just guessing, nothing to do with scientific evidence, that hurts the defense‘s credibility.

And in a circumstantial case, when the jurors listen to the both lawyers arguing at the end, it‘s the credibility of that lawyer that is going to be really important here.  And, you know, I think that that‘s something that the defense should have considered before marching on these witnesses that I don‘t think really did anything. 

(CROSSTALK)

NORVILLE:  And, Bill, I wonder if the defense didn‘t hurt its credibility as well in promising at the outset all of these things. 

And I want to flash this graphic up, that we will show you the two men and women who saw a pregnant woman walking her dog, a former police officer who saw a woman being pulled into a van by some scruffy homeless-looking men, a neighbor who saw a similar-looking van across the street from the Peterson home. 

We heard their statements read into court, but we never saw the witnesses.  And I think, if I were a juror, I might want to hear that person himself talk. 

FALLON:  Well, again, Deborah, where is the beef here?  I‘m almost agreeing with Joe for once, that I actually think the defense should have just rested and said something like, you know what?  They haven‘t even come near proof beyond a reasonable doubt, and we have nothing else to add, and nobody could do that better than Geragos. 

And that is what I think is kind of interesting, because he really gave them nothing, in fact, probably detracted.  The one thing I will say, and I hope the prosecution has the guts to do this, I said from the beginning the alibi, that you should not have a motive here in Amber Frey.  It‘s a multiplicity of motives. 

Any case I have tried, a circumstantial case where you really didn‘t know, for instance, when a friend kills a friend or an acquaintance, you come up with four or five things and say, look, ladies and gentlemen, the judge isn‘t going to tell you a motive has to be proved beyond a reasonable doubt.  Yes, we might have thought it was Amber Frey.  You might think that he‘s just a narcissistic freak.  You might think he doesn‘t want a baby.  You might think that.

But it leads inescapably to this conclusion, no matter what the motive is.  And I think someone in that jury isn‘t going to buy the Amber Frey motive. 

TACOPINA:  Absolutely.

FALLON:  And, Gloria, we thank you for Amber, because I‘ll tell you, she wasn‘t a great witness.  I mean, she wasn‘t a bad witness.  I don‘t mean that.

(CROSSTALK)

NORVILLE:  She was a great tool. 

FALLON:  No, she was a tool, exactly.  She was the mode, she was vehicle that set this whole into motion.  And we thank her for that, because they presented a truthful view. 

(CROSSTALK)   

NORVILLE:  And I have got to stop you right there, because want to talk to Gloria.

But, Gloria, we are going to have to go to a break. 

When we come back, I want to talk to the whole Michael Cardoza thing, the fact that they did a trial run with Scott Peterson and he didn‘t make the final cut.                 

More in a moment.

(COMMERCIAL BREAK)

NORVILLE:  Back talking about the Scott Peterson murder trial with our panel. 

Gloria, I want to follow up on something you mentioned a moment ago, the fact that Michael Cardoza was brought in to a practice cross-examination of Scott Peterson.  We never saw Scott on the stand.  You believe that the jury might have gotten wind of this? 

ALLRED:  Well, it‘s very possible that even though they have been instructed, Deborah, not to listen or watch the news that it may be that they have watched the news or that it‘s come to their attention that somebody has told them about it. 

And how bad does that look for Scott Peterson?  He goes through a practice cross-examination and never shows up in court.  What, did he fail the test?  What was this?  Was this just a publicity stunt?  Because if this is another public relations stunt by Mark Geragos, you know, it‘s failed, just like the Satanic cult theory.

NORVILLE:  What do you think, Gloria?  Do you think it was a P.R.  stunt? 

ALLRED:  Well, I think it was possibly a stunt to try to suggest that, oh, well, he‘s really considering testifying.  There‘s a possibility that he will. 

And I don‘t know any commentator who thought that he really was going to take the stand, because he would have been mincemeat for the prosecution. 

NORVILLE:  But, Joe, wouldn‘t that be a real dicey proposition to get in to if this was just a practice stunt for P.R. purposes? 

TACOPINA:  Yes, but who is to say it is?

I mean, Deborah, I hope to God the jurors in this case aren‘t going to convict Scott Peterson because they read some article or heard something about a practice run and he didn‘t testify.  I hope that‘s not what Gloria is suggesting may happen here, because, if that happens here, there will be a quick retrial, I guess, and we can spend another four years talking about the Scott Peterson case. 

(CROSSTALK)

NORVILLE:  Let me get to Alice.

Alice, let me ask you, even though jurors are admonished in a case as high-profile as this especially, to ignore the news.  Please turn the TV off or flip over the newspaper if you happen to run across an article about this, do they sometimes slip up and watch a little bit? 

WEISER:  Yes, they do. 

And so much attention, media attention today, “CSI” and so many programs like this, in one hour, they have the entire trial.  They have the verdict.  They have everything ready and people would like to see this happen.  Unfortunately, it doesn‘t.  This is the real world. 

But, yes, they have to have some feeling about the fact that he was not on and that he didn‘t past his so-called test in this area. 

(CROSSTALK)

NORVILLE:  I‘m with Joe.  If that is the case, that is outrageous.

You know, we‘re out of time, everybody, but I want to go around the horn and give everybody a chance to play the juror.  You get a vote.  You can vote guilty, not guilty, or a hung jury.  Some of you can go either way.  We‘ll see what happens. 

Alice, I‘ll go with you first.  Guilty or not guilty? 

WEISER:  Oh, that‘s a hard one.  I definitely think that he‘s going to walk.  Unfortunately, I do. 

NORVILLE:  OK.Gloria Allred, guilty or not guilty? 

ALLRED:  Well, I think that the jury may find that he‘s either guilty or it will be a hung jury.  I don‘t think there‘s any way that he will be acquitted. 

NORVILLE:  Joe? 

TACOPINA:  I do think he‘ll be convicted, although I think there‘s been a shortfall of the evidence.  I don‘t think they‘ve proven it, but I think the sleaze factor really comes into play here.  I don‘t think he‘s walking.

NORVILLE:  And, Bill, last 10 seconds for you. 

FALLON:  I think they‘ve proven it.  But I‘ve been saying a hung jury since about month No. 2 and I‘m fearful for one or two of the jurors.  But I would be shocked if he walks. 

NORVILLE:  All right, we shall be watching.  It all happens next week, goes to the jury. 

Gloria Allred, Bill Fallon, Joe Tacopina, Alice Weiser, thanks so much. 

(CROSSTALK)

NORVILLE:  And we‘ll be right back.

(COMMERCIAL BREAK)

NORVILLE:  We always like to hear from you, so e-mail us at NORVILLE@MSNBC.com.  And you can also sign up for our newsletter.  The address for that is NORVILLE.MSNBC.com.  You can get updates on our upcoming programs there.

We heard from a lot of you about our segment last night about the Ashlee Simpson snafu.  A lot of you liked the way we demonstrated how those guide tracks really work.  It was a cool experiment.  It did work.

Thanks for watching.  That‘s our program for tonight.  MSNBC swings into full election mode starting tomorrow night.  Chris Matthews will be here.

“SCARBOROUGH COUNTRY” is next.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

END   

Copy: Content and programming copyright 2004 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2004 FDCH e-Media, Inc. (f/k/a/ Federal Document Clearing House Inc., eMediaMillWorks, Inc.), ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and FDCH e-Media, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

Discuss:

Discussion comments

,