updated 11/15/2004 10:43:40 AM ET 2004-11-15T15:43:40

Guest: Howard Varinsky, Gloria Allred, Jeanine Pirro, Justin Falconer, Roy Black, Daniel Horowitz

(BEGIN AUDIOTAPE)

UNIDENTIFIED FEMALE:  We, the jury, in the above entitled cause, find the defendant, Scott Lee Peterson, guilty of the crime of murder of Laci Denise Peterson.

(END AUDIOTAPE)

DAN ABRAMS, HOST:  Welcome to the Redwood City Courthouse where a couple of hours ago Scott Peterson was found guilty of the premeditated murder of his wife Laci and guilty of the murder of his unborn son Conner.  What many believe was a stunning verdict coming only a half a day of deliberations after the jury foreman was dismissed from the case and the jurors were told to begin deliberations all over again.

Many thought that this jury would be unable to reach a unanimous verdict, but as I said, about two hours ago, they did just that.  Now Scott Peterson facing the possibility of the death penalty.  There will be a separate phase in this case where these very same jurors will make that decision—should Scott Peterson live or die.  For months we have been covering the ins and outs of this case and now there is finality.  First, let me just play you audio only—this is what we got from the courtroom today—of the verdict itself.

(BEGIN AUDIOTAPE)

UNIDENTIFIED FEMALE:  We, the jury, in the above entitled cause, find the defendant, Scott Lee Peterson, guilty of the crime of murder of Laci Denise Peterson.  In violation of the Penal Code Section 187A, as (UNINTELLIGIBLE) count one of the information filed herein, dated November 12, year 2004, foreperson number six.

UNIDENTIFIED MALE:  Mr. Foreperson, do you have a unanimous verdict of the jury with respect to count one?

UNIDENTIFIED MALE:  We did Your Honor.

UNIDENTIFIED MALE:  Read the degree.

UNIDENTIFIED FEMALE:  We, the jury, further find the degree of the murder to be that of the first degree.  We the jury in the above entitled cause find the defendant, Scott Lee Peterson guilty of the crime of murder of baby Conner Peterson, in violation of Penal Code Section 187A (UNINTELLIGIBLE) count two of the information filed herein, dated November 12, 2004, foreperson number six.

UNIDENTIFIED MALE:  Is that unanimous verdict of the jury with respect to count two of the information?

UNIDENTIFIED MALE:  It is, Your Honor.

UNIDENTIFIED MALE:  All right (UNINTELLIGIBLE).

UNIDENTIFIED FEMALE:  We the jury further find the degree of murder to be that of the second degree.

(END AUDIOTAPE)

ABRAMS:  Ladies and gentlemen, you are going to hear a lot of people doing some revisionist history suggesting that they predicted this verdict.  The bottom line is, sure a lot of people thought that if there was going to be a verdict, it was going to come on a Friday.  But myself included thought that this jury would not be able to reach a unanimous verdict.  There were a few out there, but I have to tell you after seeing the dissension on this jury, I did not think we were going to see this day.  The response of the district attorney, Jim Brazelton, who has taken a lot of heat for the way the prosecutors tried this case.

(BEGIN VIDEO CLIP)

JIM BRAZELTON, STANISLAUS COUNTY DISTRICT ATTORNEY:  The judge very specifically told us that we‘re not to make any comments at all.

UNIDENTIFIED MALE:  As far as any reaction with regards to the verdict?

BRAZELTON:  Oh (UNINTELLIGIBLE) we‘ll wait and see what happens with the penalty phase.

UNIDENTIFIED MALE:  Quick evaluation of how your office did on this?

BRAZELTON:  Well I think results speak for themselves.  I‘m very proud of them and put a lot of time, a lot of hard work into it and it paid off for him.  See you in a couple of weeks.

(END VIDEO CLIP)

ABRAMS:  So what happened?  How did we go from the general belief that this jury wouldn‘t be able to reach a unanimous verdict to a first-degree murder conviction with Scott Peterson facing the death penalty?

Let‘s check in with my panel—NBC News analyst and criminal defense attorney Roy Black, former judge and Westchester County New York district attorney, Jeanine Pirro, criminal defense attorney Daniel Horowitz who works out here, Amber Frey‘s attorney, Gloria Allred, who was in the courtroom, prosecution jury consultant Howard Varinsky and the original juror number five, the one who everyone loves to hate, Justin Falconer.

All right, so we‘ve got the panel here.  First let me go to Howard Varinsky.  Howard, a lot of people were second-guessing you, second-guessing the jury that you helped choose for the prosecution in this case.  Do you feel vindicated?

HOWARD VARINSKY, PROSECUTION JURY CONSULTANT:  I feel very vindicated.  You know, I‘d like to say a lot of things I can‘t quite say on the air, but I‘ll tell you one thing, you know, when you hear this kind of punditry pontificating all the time ask them for stock tips—it‘s very important to ask them for stock tips—and go bet the opposite because you‘re going to win much more often than you‘re going to lose.

I‘m thrilled at the jury.  I think justice was served.  I think Rick and Dave, the prosecutors, put on a very methodical case.  Step-by-step they built a wall of evidence to the point where any reasonable person would say, hey the guy is guilty, and I‘m just thrilled with the verdict.  Again, justice was served.

(CROSSTALK)

ABRAMS:  Another person who gets an opportunity to gloat is Gloria Allred, the attorney for Amber Frey, who has day after day been the voice of the prosecution in this case.  Gloria, I know that you were nervous going into this.  I know that you were not confident after seeing these jurors dismissed that there was going to be a unanimous first-degree murder conviction—your reaction now.

GLORIA ALLRED, AMBER FREY‘S ATTORNEY:  He‘s guilty and am I happy because I think that justice has prevailed.  Dan, while all the nay sayers were out there on Wednesday saying, oh, this jury is a train wreck, there‘s no way they‘re going to reach a verdict, I said and I‘m on the record saying it on Wednesday.  You know, in California we‘ve survived fires, floods, earthquakes, and mudslides, and I said this jury would survive as well.

And it has not only survived, but it has reached a verdict of guilty on two counts.  And all I can say is I‘m thinking today of Laci and Conner.  As I was going in there, I was praying for justice in this case.  In my opinion, this is a just result.  And I commend them on it.  And the prosecution did an outstanding job.  And Dan, I said on your show many times that they were going to go slowly and surely through the evidence...

ABRAMS:  Well...

ALLRED:  ... very carefully, putting it on.  And they all did a great job.  Rick Distaso in his final argument, Birgit Fladager in her examination of Detective Grogan and Dave Harris in his incredible cross-examination...

ABRAMS:  Yes.  All right...

(CROSSTALK)

ALLRED:  ... which made the defense expert implode.

ABRAMS:  Let‘s not revise history here and try and treat the prosecutors as they were—as if they were somehow the Clarence Darrow of our day.  They really messed up...

ALLRED:  That‘s not revising history...

ABRAMS:  ... the beginning of this case, all right.

ALLRED:  They did it.

ABRAMS:  Yes it is.  The bottom line is...

ALLRED:  They did a good job.

ABRAMS:  ... the prosecutors messed up the beginning of this case and they survived it and they survived it at the end.  They made a comeback at the end.  The one thing you‘re not going to see on my show is revisionist history is people coming on and saying...

ALLRED:  Well...

ABRAMS:  ... of course this or of course that.  And the bottom line is that these prosecutors are lucky that they walked away with a conviction after the way that this case started.  Jeanine Pirro...

ALLRED:  I disagree 100 percent with you, 100 percent...

ABRAMS:  All right.  Look, you suddenly disagree.  You didn‘t used to disagree with me, but now that the verdict has come your way, you disagree...

ALLRED:  I agree with you.  This is not revisionist history.  This is the record and the jury agrees with what I said.

JEANINE PIRRO, WESTCHESTER COUNTY D.A.:  Dan...

ABRAMS:  What do you mean the—I am not disagreeing with what the jury said.  I am disagreeing with what you said about the prosecutors doing a great job from the beginning of this case.

ALLRED:  Well they did a great job...

ABRAMS:  Jeanine Pirro—hang on, Gloria.  Hang on.

ALLRED:  They proved beyond a reasonable doubt.

ABRAMS:  Jeanine, go ahead.

ALLRED:  What more can you ask for?

ABRAMS:  Jeanine—that is not a great job.

PIRRO:  You know what Dan...

ABRAMS:  Any prosecutor—prosecutors—anyway go ahead Jeanine.  Go ahead.

PIRRO:  Dan, you know what?  When there is a guilty verdict, especially in a murder one case, it‘s nothing to celebrate.  I don‘t do it.  My staff doesn‘t do it.  It‘s a confirmation that a woman has died, that a baby is dead, that a son is convicted of murder.  This is a very somber occasion.  And I think that we ought to step back and give this jury credit because all of the pundits whether they said one thing or the other doesn‘t matter.

This jury was listening.  They listened for five months.  They made a decision that is one of the most difficult decisions that anyone in our society can make.  And that is to find someone guilty of murder in the first degree.  So it‘s not time for kudos.

ABRAMS:  All right.

PIRRO:  It‘s time...

ABRAMS:  I want to go to Roy Black in a moment.  But Justin Falconer, former juror number five, you told me, “A”, you thought that this jury was going to acquit after you heard that they had reached a verdict and “B”, that you would have hung this jury.  You are telling us that if you had remained on this jury, that you would have hung it?

JUSTIN FALCONER, FORMER PETERSON JUROR #5:  Well, you know what?  Obviously, if you know, having heard what I heard at the very beginning—and I am going to, you know, I‘m going to agree with you here.  The very beginning of this case the prosecution screwed it up left and right.  Geragos got so many points out of all of the prosecution‘s witnesses that it was difficult to believe that there was going to be, you know, anything but reasonable doubt.

But obviously all these questions that I had after I was dismissed have been answered for these jurors and all these jurors came back—they all came back unanimously.  I told you, you know, the other day we‘re going to see a verdict.  And I, you know, said it was probably going to go towards, you know, guilt or innocent, but you know it could also be guilty.  You know—oh, I almost said his name—juror number six is a strong guy.  I knew he was going to rally them together.  I knew he was going to get a verdict and I knew that they would—that something would come up soon...

ABRAMS:  Justin...

FALCONER:  Yes.

ABRAMS:  ... are you now retracting your statement that you would have hung this jury?

FALCONER:  You know what?  I‘m not retracting it because if I didn‘t believe that he was guilty, then I would have hung it.  There is no way that you would have swayed the other way.  But if I had seen all the information that they saw and I agreed with them, I‘d go right along with them.  And since...

ABRAMS:  Yes.

FALCONER:  ... they are the ones that came out—hey, since they‘re the ones that came out and said he‘s guilty, then that‘s—obviously he is guilty.

ABRAMS:  You know Scott Peterson is in trouble when juror number five, Justin Falconer, is ready to say that Scott Peterson may be guilty.  Let me get a quick thought from Roy Black on a reaction to the verdict—Roy.

ROY BLACK, CRIMINAL DEFENSE ATTORNEY:  Well, Dan, I have to agree with you quite frankly and I agree with a lot of the pundits in this case.  I don‘t think they were so wrong.  At the beginning of this case, the prosecution did a very poor job and the defense was very strong.  However, the defense fell apart when their case came on and the prosecution really punched holes in what little defense there was.

So I think there was great swings in this case and it‘s very hard to predict what would happen.  But I also thought at one time it was going to be a hung jury.

ABRAMS:  All right, let me take a quick break here.  When we come back, Scott Peterson is now facing the possibility of the death penalty.  This is very, very somber and serious stuff.  And the next phase of this case will determine whether Scott Peterson will live or die.  The same jury will make that decision.  How will the lawyers change their strategy?  How will Mark Geragos be able to go back to the same jury and say, I know you think my client did it, but—coming up, in a special edition of a verdict in the Scott Peterson trial in a moment.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, will a jury that many of us thought would be hung end up giving Scott Peterson the death penalty?  It‘s coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Is that correct, Mr. Peterson?  You are pleading not guilty to two charges of murder plus the special—denying the special allegations?

(CROSSTALK)

SCOTT PETERSON, ON TRIAL FOR MURDER:  That is correct, Your Honor.  I am innocent.

(END VIDEO CLIP)

ABRAMS:  Well, today a jury said we don‘t buy it.  A jury finding Scott Peterson guilty of first-degree murder, guilty of second-degree murder in the killing of his unborn son Conner.  Peterson now facing the death penalty, and that poses some very interesting questions about what he is going to do to try to save his life.

Daniel Horowitz is an attorney here in California who has tried a lot of cases before this judge.  Daniel, lay out the issues.  First of all, why don‘t you bring it to me from the defense perspective?  What does the defense...

(CROSSTALK)

ABRAMS:  ... need to do in this penalty phase and how do they need to act differently than they did in the original guilt phase?

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  All right, Dan.  The defense has the right to put on any evidence under the sun that a juror could rely upon to find life is a better solution than death—anything, even an irrational feeling by a juror.  Any lingering doubt can help them find life without parole.

But realistically, I have been trying to think, what is the hook upon which they can hang a plea for mercy because they are going to have to be a lot more obsequious and putting on the parents basically begging for Scott‘s life is good.  But I just talked to James Anderson (ph), a good friend of Brazelton, who says you know, the prosecution is going to attack those parents for lying ton witness stand, they‘ll say, and for telling Scott, like you played that tape on the show, where Jackie says to Scott, deny, deny, deny.

That may not be enough.  So sitting here with Gloria, Dan, I think maybe there might be something that saves Scott with babies.  The jury did not find that Scott Peterson premeditated the killing of Conner and I think inadvertently, Amber Frey might have helped Scott Peterson escape a first-degree conviction with Conner because look how loving...

ABRAMS:  Wait...

HOROWITZ:  ... Scott was with Ayianna.  I know it‘s strange, but think about it.  He was good with Ayianna.  He was good holding the baby in that baptism picture, which was not Ayianna...

ABRAMS:  Oh come on Daniel...

HOROWITZ:  It was somebody that Geragos...

ABRAMS:  Wait a second.  Wait a second.

HOROWITZ:  Dan...

ABRAMS:  Gloria, you don‘t really...

(CROSSTALK)

ABRAMS:  ... hang on.  You don‘t really think that the defense is going to say, think about how good Scott was with Amber‘s baby, with Amber‘s child.  There‘s no chance they‘re going to do that.

ALLRED:  You know, with this defense team, I guess anything is possible.  And I don‘t know whether this is what they have in mind.  But that is really a stretch if they‘re going to have to go that far.  They‘re digging really deeply into their bag of tricks.  I don‘t know.  I—it‘s hard for me to believe that would be very persuasive...

HOROWITZ:  The reason I thought about it, Gloria and Dan...

ALLRED:  ... it‘s creative.

HOROWITZ:  ... is that the prosecution really put out the theory that Scott didn‘t want that baby and that is one of the reasons he did the killing.  By coming back with the second, I think it‘s a message to the prosecution...

ABRAMS:  No way...

HOROWITZ:  ... you struck out on that point.

(CROSSTALK)

ABRAMS:  No way.

(CROSSTALK)

ABRAMS:  It‘s not happening.

ALLRED:  And Dan...

ABRAMS:  All right.  Let me move on because...

(CROSSTALK)

ABRAMS:  ... I love Daniel Horowitz.  He has a lot of great analyses, but he‘s way off on this one and I don‘t even want to go there.

All right.  So Lee Peterson—but Daniel made a very good point about the parents here.  Jackie and Lee Peterson, they testified on behalf of Scott in the guilt phase.  They offered explanations, they said innocent explanations, for some of the evidence in this case, for all the cash Scott Peterson was found with.  Jackie Peterson said it was my fault.  Why did Scott Peterson have his brother‘s I.D.?  His father says it was our fault.  We were trying to get a discount at the golf courses, et cetera.  It sounds like these jurors are not believing—here‘s Lee Peterson outside of court a couple of months ago.

(BEGIN VIDEO CLIP)

LEE PETERSON, SCOTT PETERSON‘S FATHER:  We think our attorneys are doing a wonderful job.  We have a great team.  Our son, of course, is innocent, so it makes his job easy.

(END VIDEO CLIP)

ABRAMS:  Roy Black, is it going to be difficult to have them become the most important witnesses to try and save Scott Peterson‘s life if it seems like these jurors didn‘t believe them in the guilt phase?

BLACK:  No, I don‘t think so, Dan.  We‘re not going to replay the guilt phase and the prosecution is not going to attack them on what happened in the guilt phase.  What the parent are going to do is get up there and tell Scott‘s life story, everything from the day he was born until the day he got to that courtroom, what kind of person he is, where he went to school, the kind of jobs he had, all those kind of things.

And they‘re going to put on all the friends.  They‘re going to put on their schoolteachers, anyone they can find.  It has nothing to do with the facts of the case, but what they‘re going to do is humanize him.  What are they going do?  Attack the parents because they love their child?  I find that would horribly play in front of the jury.

ABRAMS:  Jeanine...

(CROSSTALK)

ABRAMS:  ... how vigorously do the prosecutors go after Scott Peterson here?  I mean do you get the sense that these are prosecutors who are going to offer up the death penalty and say it‘s up to you or they are going to say we recommend you offer—give Scott Peterson the death sentence?

PIRRO:  If I know Jim Brazelton and the theme of this case is all about betrayal, I think they are going after Scott Peterson with guns a blazing at this point.  He is guilty.  Now they‘re going to seek his death.  And by the way, this jury will not forget, Dan, and Roy, you know, I love you, but I disagree with you—this jury is not going to forget that it is basically an untruth, if you don‘t want to call it a lie, to say oh I accidentally took money out of the bank and oh, I, you know, I gave him my license so he could buy a car.

They don‘t believe these people.  So if they take the stand, they‘re not going to replay the guilt phase, but they‘re going to say these are not credible people.  Remember, this case is about a pregnant woman about to give birth before Christmas and the last pair of eyes she sees is her husband, the man who said that he would love and honor and take care of her.  This guy killed his wife and baby in one fell swoop.  They‘re not going to forget that.

ABRAMS:  Howard Varinsky, you helped pick this jury.  You know these jurors.  Do you have any concern that any of these jurors will be reluctant to impose the death penalty based on what you heard in jury selection?

VARINSKY:  No, I don‘t have any concern about that.  They all passed the death qualification test, and they all would impose it under certain circumstances.  I think the only shot that Scott has here is the fact that he has no record, there‘s no priors and he‘d be a good prisoner.  I don‘t think the parents have any credibility.

I mean they betrayed the jurors trust by coming on and talking about what they talked about.  So I think the jurors will discount anything from the parents.  It‘s only the fact...

ABRAMS:  Ladies...

VARINSKY:  ... that he has no priors, you know, and he‘ll be a good prisoner.

ABRAMS:  I have got to take a break, but ladies and gentlemen, remember that man, Howard Varinsky, that you were just looking at a moment ago apart from the fact that he let our other guest, Justin Falconer, on to that jury, and I don‘t know what Howard‘s role was in that.  My guess is he recommended against it, but I know he can‘t say right now.  But he deserves a lot of credit because jury selection may have been the crucial issue in this case.  And I think this is really—may propel Howard Varinsky to the very, very top.

We‘re going to take a break.  When we come back, we thought we were having all sorts of problems with the jurors.  What happened with that?  And Scott Peterson‘s statements—how much did Scott Peterson‘s lies end up factoring into this jury‘s verdict?  We continue with our special coverage of the guilty verdict for Scott Peterson—more in a moment.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

DIANE SAWYER, CO-ANCHOR, “GOOD MORNING AMERICA”:  What kind of marriage was it?

S. PETERSON:  God, I mean the first word that comes to mind is glorious and we took care of each other very well.  She was amazing—is amazing.

(END VIDEO CLIP)

ABRAMS:  Jurors saw that interview of Scott Peterson.  They saw this videotape of Laci and Scott.  The bottom line is they did not believe that Scott Peterson did view that marriage as glorious at all.  Finding him guilty today of first-degree murder, premeditated murder of Laci, second-degree murder for the killing of their unborn child.

We‘re back with our special coverage in front of the courthouse.  Lot of people said there was going to be a lot of problems with this jury in this case.  Let me just briefly review what happened with this jury this week.  On Monday, the jury viewed Peterson‘s boat at the courthouse.  A couple of them apparently rocked in it.  They were re-instructed on the attitude and conduct of jurors.

Tuesday, juror number seven replaced, off the case, by alternate number two.  The jury instructed to start deliberations all over again.  Wednesday, juror number five, the foreman of the jury, replaced by alternate number three.  The jury re-instructed again to rely on the evidence presented at trial.  It is instructed to start deliberations over again.

Thursday was a juror holiday and then at approximately 4:10 p.m.  Eastern, 1:00 p.m. Pacific, the jury found him guilty of first-degree murder.  Remember, though, we knew that there was a verdict about two hours -- just under two hours before that.  So it is clear that this jury only deliberated about a half a day with their new jury composition before reaching a verdict.  Roy Black, do you think that‘s any kind of problem for the appeal, for the prosecutors in this case?

BLACK:  Dan, I certainly think so.  I think that—remember the jury foreman deliberated with that jury for six or seven days.  The new foreman comes in or the new juror replacing him comes in and deliberates for half a day.  And they took out a foreman who was both a lawyer and a doctor who had 19 notebooks of evidence who wanted to analyze the evidence.  And I think that slowed down the process, and I think the de-selection process here of two jurors during the deliberations helped guide us directly to this verdict.

ABRAMS:  Yes, but Gloria, so what?  I mean as long as the judge dismissed them for proper reasons, you know, that‘s the way that trials—that‘s what happens.

ALLRED:  Well, absolutely.  The defense did, of course, as we know, lodge an objection to the dismissal of the last juror, so they preserve that objection for appeal.  But look, this jury was unanimous.  They took their time.  Yes, they had to deliberate anew each time the jurors were dismissed and alternates became jurors.  But look, they knew all—they knew the opinions of each other because they‘d been talking all week.  So in a way it‘s a legal fiction to say they deliberated anew...

ABRAMS:  Yes.

ALLRED:  ... because they knew their opinions and they just had to get the opinions of the two new jurors and then those two new jurors had to hear their opinions and then deliberate and reach a verdict, which they did.

ABRAMS:  Justin Falconer, the juror who had been juror number five originally dismissed from the case.  Justin, it sounds like you just didn‘t know these jurors as well as you might have thought, right?

FALCONER:  You know, I think I did know them.  I just think—I said that there was going to be a verdict.  I thought it might go towards the defense, but you know what?  It didn‘t.  So, you know, I think whatever it was that convinced them is obviously going to be interesting to hear.  I can‘t wait until they come out and they start talking to let us know what it was that put them over the top.  But you know, they‘re all strong people and I said that if they were convinced they‘re going to come back with a verdict and they obviously were and they‘re guilty—he‘s guilty.  So now I think it‘s...

ABRAMS:  Are you upset about it Justin...

FALCONER:  No, not at all.

ABRAMS:  Justin, let me ask you this.  Are you upset about the verdict?

FALCONER:  Not even a little bit.  Like I said before, those people saw a lot more than I did.  When I left the courtroom, the prosecution was having issues and I blasted them the same way everybody else did.  And you know hey, they obviously picked it up and maybe that helped them out.  Maybe they knew they were screwing up and they had to pick out...

ABRAMS:  All right.

FALCONER:  ... their game.  So whatever they saw, this is obviously the right thing.  I trust everybody in that room...

ABRAMS:  You know...

FALCONER:  ... to make the right decision.

ABRAMS:  We may see...

UNIDENTIFIED MALE:  Dan, can I...

ABRAMS:  ... the same sort of change in position—hang on a sec—hang on a sec—we may the same kind of contrition and change in position from the defense attorneys as we‘re seeing from Justin Falconer on the show tonight, changing a little bit in terms of the tune one takes.  We may see that in the penalty phase of this case as well.

Let me take a quick break here.  When we come back, we‘re going to talk about exactly how the prosecutors built this case, and it seems to have worked in this case.  And before we do go to break, a little piece of sound from Amber Frey in one of those phone calls that now sure seems a little bit telling.

(BEGIN AUDIOTAPE)

AMBER FREY, SCOTT PETERSON‘S FORMER GIRLFRIEND:  And from what I know

Scott, and this pains me to say, this was all a plan.  I was a plan in your

·         before all this.  This was just a plan you had Scott.  You—the only—the thing is you know where it went wrong for you Scott in this plan, is that you didn‘t think the media would be so big and I‘d ever learn of this.  That‘s where it went wrong.  That is was so huge that I did learn of this and that now where are you?

(END AUDIOTAPE)

ABRAMS:  Guilty.  That was the verdict from the jury in the case of Scott Peterson.  We‘re going to talk about what the prosecution‘s theory was and whether it seems like the jurors bought all of it, hook, line, and sinker, but first the headlines.

(NEWS BREAK)

END

(BEGIN AUDIOTAPE)

UNIDENTIFIED FEMALE:  We, the jury, in the above entitled cause, find the defendant, Scott Lee Peterson, guilty of the crime of murder of Laci Denise Peterson.  In violation of Penal Code Section 187A (UNINTELLIGIBLE) count one of the information filed herein.  Dated November 12, year 2004, foreperson number six.

UNIDENTIFIED MALE:  Mr.  Foreperson, do you have unanimous verdict of the jury with respect to count one?

UNIDENTIFIED MALE:  It is Your Honor.

UNIDENTIFIED MALE:  Read the degree.

UNIDENTIFIED FEMALE:  We the jury further find the degree of the murder to be that of the first degree.

(END AUDIOTAPE)

ABRAMS:  This just coming out only moments ago.  The papers are starting to show it in this area.  Scott Peterson guilty in a verdict that stunned many about the fact that they even reached a verdict.  A lot of us thought there was going to be a hung jury in this case.

Now remember, in this case, just like any other, the defense really had to prove nothing.  Really it was the prosecutors who had the burden of proof here of proving that Scott Peterson killed his wife and unborn son.  Now, they never really clearly laid out what their theory was of exactly how it happened until their closing arguments when prosecutor Rick Distaso said this is what they proved—quote—“based on the evidence.”

Here it is.  Listen—while Laci Peterson was changing her clothes on the night of December 23 or the morning of December 24, Peterson strangled or smothered her until she died, wrapped the body in a tarp, and backed his pickup truck to the gate of his house where no one could see what he is doing.  He loaded Laci‘s body into the truck, covered it with patio umbrellas that we heard a lot about.

He put the leash on their dog McKenzie, left the gate open, drove off.  The Peterson‘s neighbor found the dog wondering around minutes later.  So Peterson, they say, then drove his truck into the warehouse, closed the door behind him, again, so no one could see what he‘s doing.  While he is attaching concrete anchors to Laci‘s body, they say her hair got caught in pliers—you see them in the photographs.

Peterson puts Laci‘s body into his boat, straps on the boat cover, drives to the Berkeley Marina, puts the boat in the water with the cover still secured, still hiding Laci‘s body.  Parks the car, goes back to the boat, takes off the cover, stuffs it around Laci‘s body and the state‘s theory said that no one could see any of this.  Now, then Peterson set out for the area near Brooks Island 90 miles away, dumps Laci‘s body into the water, then heads home.  On the way back leaves this message for Laci.

(BEGIN AUDIOTAPE)

S. PETERSON:  Hey beautiful.  I just left you a message at home.  It‘s 2:15.  I‘m leaving Berkeley.  I won‘t be able to get to Vella Farms to get the basket for papa.  I was hoping you would get this message and go on out there.  I‘ll see you in a bit sweetie.  Love you.  Bye.

(END AUDIOTAPE)

ABRAMS:  Daniel Horowitz, does this tell you that the jurors accepted the prosecution‘s theory as they laid it out so specifically in the closing argument?

HOROWITZ:  You know, Dan, I really have been very somber these last few minutes as you went through this.  I think they accepted some version of what you just related.  I‘m not sure they accepted the full motivational psychology that we heard in closing argument from Distaso.  But yes, I think they accepted this to some degree.

Now, maybe every little fact, no.  But when we think about penalty phase because that is where you got me thinking, what do we have from a defense perspective, from a perspective of those who don‘t think the death penalty does any good in a case like this.  What do we have to counter such cold blooded, planned, methodical actions over such an extended period of time?

So in a sense, I don‘t think the prosecution proved a single theory, but they laid out enough evidence so that the jurors themselves probably by the third or fourth month had their own theory that somehow approximated what you just put out.

ABRAMS:  Roy Black, it is only someone as prominent as you who I could really trust to answer a question like this, and that is, to review the way the defense presented its case, the way Mark Geragos moved forward here.  Do you think that this was a winnable case or a case where an attorney should have at least gotten a hung jury and the defense team just blew it?

BLACK:  Well, Dan, I really can‘t answer that question.  But let me

tell you the part that really disturbs me about this case, and those facts

·         alleged facts that you just read as part of their theory.  The problem is there is not a single piece of evidence to back up any of that.  And that to me is what‘s so disturbing about this.

At the end of this case, the prosecution was able to make up a story that weaves in and out of various facts, none of which support that, but in fact their theory is such that they don‘t need any facts to support it.  Now, granted, I think that Geragos overplayed his hand.

His opening statement was too over the top.  They promised all kinds of evidence and witnesses, which they never established and may not have ever been able to establish.  So I think that they took the wrong tact throughout the case.  But can I say that that lost the case?  I really can‘t necessarily say that, but I will tell you I‘m sure the jurors were affected by the fact that the defense could not back up any of the arguments that they gave them in the opening of the case.

ABRAMS:  Yes.  Gloria Allred, I mean that was—Roy Black is making the point that all of the facts that I laid out, they surmised.  That it was likely he did this.  It was likely he did that, et cetera.  Do you agree that they didn‘t get down into the nitty-gritty and prove every single thing that they laid out in their closing argument?

ALLRED:  I agree that they put the story together—they put the pieces of the puzzle together and then they said to the jurors, Dan, and you were there when they said it, use your common sense.  And the jurors used their common sense, but they based it on the evidence, five months of evidence that the prosecution put on in this case.  And they felt...

ABRAMS:  Well...

ALLRED:  ... that the case was proven beyond a reasonable doubt based on the evidence.

ABRAMS:  And Jeanine Pirro, here‘s the problem.  I think Mark Geragos got himself caught.  Let me play—this is what Mark Geragos said when he took on the case and I think he tried to keep his closing argument consistent with this.

(BEGIN VIDEO CLIP)

MARK GERAGOS, SCOTT PETERSON‘S ATTORNEY:  We have set the bar extremely high.  And that is 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)

ABRAMS:  Well, they didn‘t do anything like that in this case, Jeanine, and I think Mark Geragos realized he wasn‘t going to be able to do that even though as Roy points out, he promised it in the opening statement.  He tried to back off it a little bit in the closing argument, but I think that in the end he felt strapped with that.

PIRRO:  You know what he did?  He assumed a burden of proof that he didn‘t have to assume.  He was so in front of the cameras and so out there with these, you know, my client‘s stone cold innocent and it was the Asian gang and it was the satanic cult that he built up peoples‘ expectations.  He created an almost impossible situation for himself and ultimately for his client.

And you know what, Dan, I think the more important question is, where is Mark Geragos now?  How are you not there unless there‘s some kind of family emergency when a jury is coming back with a verdict on a murder one case?  Where is he now?  He kind of whimpered out of this case.

And you have to wonder, what is he thinking?  Why did he come on like gangbusters, assume a burden of proof that he didn‘t have to and all of a sudden...

ABRAMS:  Yes.

PIRRO:  ... disappear into the day or the night.

ABRAMS:  All right.  Yes, Jeanine pointing out that Mark Geragos not present when the jury‘s verdict was read.  He was out of town he said working on another case and gave permission for his co-counsel to take the verdict.

Howard Varinsky, who is a man who is very proud of himself today, helped pick the jury for the prosecution in this case, a jury that found Scott Peterson guilty.  He has to run.  Hey Howard, great to see you.

VARINSKY:  Thanks Dan.

ABRAMS:  Thanks very much for coming on the program.  When we come back, we‘re going to talk about some of the appellate issues in this case, meaning what are Scott Peterson‘s chances for getting a new trial?  Coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SAWYER:  Had you told anyone?  Did you tell police?

S. PETERSON:  Told the police immediately.

SAWYER:  When?

S. PETERSON:  That was the first night we were together, the police—

I spent with the police.

SAWYER:  You told him about her?

S. PETERSON:  Yes, December 24...

(END VIDEO CLIP)

ABRAMS:  No, actually, he didn‘t.  He‘s talking there about Amber Frey and when he told the police about his affair, claiming he told them that night.  Not true.  One of the inconsistencies and lies that seems to have gotten Scott Peterson into a whole lot of trouble.  A jury in the last few hours finding him guilty of first-degree murder.  He is now facing the possibility of the death penalty.

So the question now is, is there any hope for Scott Peterson?  Is there any hope that he could get a new trial?  Is there any hope that this case is not really over?  Daniel Horowitz knows California law as well as anyone.  Daniel, what do you make of his chances?

HOROWITZ:  Well, unfortunately for him, he got a fair trial.  He had a judge who everybody was saying is giving his attorney all the continuances he needs, is criticizing the prosecution in front of the jury for not turning over discovery.  So when you really look at it, once he is convicted, what issues does he have?

That business about rocking the boat, we have discussed that on your show.  It‘s not error—I even think it was the correct thing to do.  Taking off juror number five, the doctor/lawyer, with all respect for Roy Black, I promise you that Judge Delucchi followed the rules.  It‘s not reversible error.  Any small mistakes that are made in the trial, Dan, as you know, are not enough to set aside a verdict.  If the mistake is little, if it‘s what‘s known...

ABRAMS:  All right.

HOROWITZ:  ... as harmless error, then the verdict will stand.  Scott Peterson has to face the music.

ABRAMS:  Roy...

HOROWITZ:  He better hope they do a good penalty phase.

ABRAMS:  Roy Black, you don‘t necessarily agree, do you?

BLACK:  No, I don‘t.  I think there are two issues.  One is they did not allow the video of Geragos‘ boat demonstration.  I don‘t think that‘s going to be reversible error because it wasn‘t close enough to the facts of the case.  But excusing juror number five, here is the foreman of the jury, who‘s been on this case for five months deliberating for six or seven days, 19 notebooks of facts, a lawyer and a doctor, to bounce him off the jury is a very big step to make.

PIRRO:  Roy...

BLACK:  Now we don‘t know exactly why this happened.

PIRRO:  ... you don‘t know why and that‘s exactly the point, Roy. 

There has got to be...

BLACK:  That is exactly the point Jeanine...

PIRRO:  That is the point.  No, wait a minute.  There is a record.  Just because you don‘t know why doesn‘t mean that there wasn‘t a basis, in fact, for the judge to do it.  This is a very competent judge, Roy.  He would not do this lightly.  There had to be a reason...

BLACK:  Yes, but Jeanine...

(CROSSTALK)

BLACK:  ... there‘s a reason why we have appellate courts because many competent judges make mistakes.  And I think what happened here, the judge realized this foreman was slowing down the jury and the other jurors were complaining that he wanted to go through every fact in the case.  He is the one asking for the exhibits.  He wanted to go through this methodically.  And I get the impression that he was in an impediment to this verdict...

PIRRO:  Roy...

BLACK:  ... and that is why everybody wanted him off the jury.

PIRRO:  ... Roy, the chances of a judge bouncing a juror in the middle of deliberations on a murder one case because he was slower than the others makes absolutely no sense.

(CROSSTALK)

ABRAMS:  All right, let me ask Gloria Allred.  Gloria, what do you make of this issue?

ALLRED:  Yes.

ABRAMS:  Do you think that the dismissal of either of these jurors could be a potential problem for these prosecutors later on?

ALLRED:  Well, only the second juror because I didn‘t hear that the defense objected to the removal of the first two jurors.  So if they didn‘t object and they haven‘t preserved their point for appeal.  As to the last one, I think we do need to know the reason that that juror was dismissed.  I don‘t know whether he wanted to go and if so, whether it was a health reason or some other reason.  I have no idea.

So I think that remains to be seen.  But again, my observation of this judge is very careful, very cautious, you know, erred on the side of giving the defense a great deal of latitude.  I personally don‘t see what the grounds for appeal would be, but maybe there are some and they will find something they can argue, but whether they will be successful on appeal, well, they have an uphill battle on that, I think.

HOROWITZ:  Dan, I have an unusual thought.  I don‘t want to get in trouble for this one, but maybe ineffective assistance of counsel by Mark Geragos if he put out too much...

ABRAMS:  (UNINTELLIGIBLE)

HOROWITZ:  ... shifted the burden of proof to himself by putting up a straw man of a 666 cult offense and then shot his client in the foot by not putting up...

ABRAMS:  Yikes.

HOROWITZ:  ... where he made promises.

PIRRO:  What a difference a day makes.

(CROSSTALK)

HOROWITZ:  I know...

ABRAMS:  Yikes.  Roy Black...

HOROWITZ:  ... I like Mark Geragos, but I had to throw it out.

BLACK:  No, there‘s no chance of that at all.  Let‘s face it, Mark Geragos did an excellent job during the prosecution‘s case.  He‘s well prepared, did great cross-examination.  The problem with Mark is that the defense case was not carefully put together.  But there‘s absolutely no chance anyone is going to say that was ineffective assistance of counsel.  I mean he did...

ABRAMS:  Yes.

BLACK:  ... a pretty good job in this case.

(CROSSTALK)

ALLRED:  And Dan, even I would agree with that.

(CROSSTALK)

ALLRED:  I don‘t think it was ineffective assistance counsel...

(CROSSTALK)

HOROWITZ:  ... they will raise ineffective assistance because it is the standard thing they raise.  And poor Mark Geragos is going to be raked over the coals.

ABRAMS:  Yes.

HOROWITZ:  If it is life without parole, you are right, Roy.  But if it‘s a death verdict, that is going to become the focus of a habeas.  Why, for example...

ABRAMS:  Justin Falconer...

(CROSSTALK)

ABRAMS:  Hang on...

HOROWITZ:  ... did he promise that Conner was born alive?

ABRAMS:  Justin Falconer, a thought about the judge.  How did the jurors perceive the judge through this trial when you were on the case?

FALCONER:  The judge is fair.  I mean the judge has been so fair that, you know, I mean there‘s no way—you know, I mean there—I mean I remember him telling, you know, getting upset at the prosecution.  You know, he told Geragos not to do some things, so it was on both sides.

You know, I don‘t think—I think Geragos did a really kick ass job up until the very end and then he fell flat, and I think, you know, looking back on it now, there‘s where his problem was because if he couldn‘t—he did promise a lot in the very beginning and if he had come up and he had proven those things, we wouldn‘t be talking about it like this now.  But you know, he didn‘t...

ABRAMS:  No, we wouldn‘t be.

FALCONER:  He didn‘t do it.

ABRAMS:  No, we wouldn‘t be because that evidence was not presented as part of the defense case.  We didn‘t hear about the witnesses who supposedly saw someone who looked like Laci.  We didn‘t hear the witnesses come forward and talk about the homeless transients.  We didn‘t hear people talk about who really killed Laci Peterson.  All the evidence that we did hear of was with regard to Scott Peterson.

Gloria Allred, great to see you.  Thanks so much.  The rest of the panel...

ALLRED:  Thank you.  Thanks Dan.

ABRAMS:  ... is going to stick around.  Coming up, some final thoughts on the final day of the Scott Peterson trial—guilty.  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, some final thoughts and predictions on what happens from here as Scott Peterson is now facing the death penalty, in a moment.

(COMMERCIAL BREAK)

(CHEERING)

ABRAMS:  That was the reaction after Scott Peterson was found guilty here at the courthouse about three hours ago.  A mostly cheering crowd outside as Scott Peterson now facing the death penalty.  Let me very quickly go to my guests.  I‘m almost out of time.  I just want to get a prediction as to whether they believe this jury could sentence Scott Peterson to death—Roy Black.

BLACK:  No, I think they signaled him by finding him guilty of only second-degree murder for the death of Conner that they‘re not going to seek death.  Two first-degrees...

ABRAMS:  Jeanine...

BLACK:  ... would have been death.

ABRAMS:  Jeanine Pirro.

PIRRO:  This jury is capable of imposing death, given the quickness with which they brought back a murder one, but knowing Scott Peterson the way they do, a man who wanted his freedom, wanted to have sex...

ABRAMS:  Yes.

PIRRO:  ... as much as he wanted to, they‘re going to give him life without parole.

ABRAMS:  Daniel Horowitz quickly.

HOROWITZ:  Well maybe a hung jury on penalty.  That can happen also. 

That‘s what I predict.

ABRAMS:  Justin Falconer, former juror number five.

FALCONER:  I‘m going to say life in prison.  I don‘t think they‘ll kill him.

ABRAMS:  I don‘t think they will either, but we shall see.  I was wrong.  I said there‘d be a hung jury in this case.

Thanks to all of my guests.  I appreciate it.  Let me just say one other thing before we get ready to go.  I just want to say that the Rocha family, the family of Laci Peterson, deserves an enormous amount of credit here.  They have been brave.  They have been resolute.  They have held themselves with sort of—this sort of elegance in the wake of such a horrible event that they deserve a lot of kudos.  I didn‘t write this out, but I just thought of it right now.

All right, that‘s it.  We‘re out of time.  Back at 9:00 Eastern Time, 6:00 Pacific with a special two-hour look back at the Peterson case.

Thanks for watching.  Coming up next, “HARDBALL” with Chris Matthews. 

I‘ll see you in a couple of hours.

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

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