updated 10/18/2005 12:31:41 PM ET 2005-10-18T16:31:41

Guests: Jack Klian, Max Kellerman, Nancy Pelasara, George Malim, Barry Morris, Joe Tacopina, Susan Filan

CATHERINE CRIER, GUEST HOST:  Well, right now, in SCARBOROUGH COUNTRY, in cold blood.  This prominent defense attorney told friends he lived in fear.  Then he came home to find his wife murdered in their front hall. 

Tonight, police scour every inch of the couple‘s sprawling property, searching for clues.  And we will have the latest on this legal murder mystery. 

Plus, the Louisiana attorney general investigates the death of 215 people in New Orleans hospitals during Hurricane Katrina.  How did they die?  Were they victims of mercy killings?  Troubling questions.  And we will have more on that story tonight. 

ANNOUNCER:  From the press room, to the courtroom, to the halls of Congress, Joe Scarborough has seen it all.  Welcome to SCARBOROUGH COUNTRY.

CRIER:  Thanks so much for being here tonight.  I‘m Catherine Crier from Court TV, in for Joe, who is taking a few days off.  And we will have those stories in just a minute.

Plus, the very latest on the Taylor Behl case.  The key suspect changes his story again and says Taylor died during rough sex.  Taylor‘s family is outraged.  We will get reaction from her grandmother and what the police plan to do next. 

But, first, the brutal killing of Pamela Vitale, the wife of defense attorney Daniel Horowitz.  In a bizarre twist, Horowitz was the lead attorney defending Susan Polk, who is accused of brutally stabbing her husband.  Could there be a connection between the cases?  Or did Horowitz and Vitale live in fear of a deranged neighbor who might have committed the crime?

And breaking news tonight, as police search the Horowitzes‘ properties for clues.

For more on the mystery, we‘re going to live out to California and Noelle Walker of NBC station KNTV.

Noelle, what‘s the very latest? 

NOELLE WALKER, KNTV REPORTER:  Catherine, we know this case is far from being closed yet. 

In fact, as you said, as the sun sets here on the West Coast, investigators are back out at the sprawling 12-acre property owned by Daniel Horowitz and his wife, Ms. Vitale.  It is a 12-acre property that includes several structures, among them, a mobile home where Pamela Vitale was murdered. 

It sits in the shadow of a huge four-story mansion that the couple was building, said to be their dream home.  We know that investigators have questioned dozens of people, to include Daniel Horowitz and a neighbor who has been described as a caretaker. 

Now, an interesting footnote about that neighbor.  I have a restraining order right here, a temporary restraining order that was filed by Daniel Horowitz.  The date is June 23 of this year.  In this paperwork, Daniel Horowitz described his neighbor as being someone who was good at heart, but he described some very erratic behavior, says this person has some drug problems and that he feared for his and his wife‘s safety because this neighbor had become increasingly violent. 

Chilling, at the end of this statement, he says, “I have phrased this declaration in personal terms, but most important to me is that he stay away from my wife, Pamela.”  Now, we do not know if this has anything to do with Pamela Vitale‘s murder. 

In fact, police have made, or sheriff‘s investigators I should say have made no arrests in this case and yet they say they have ruled no one out.  Now, as for the other development in this case, as you mentioned, the judge in the trial of Susan Polk has declared it a mistrial, said there was really nothing else to do under these extenuating circumstances. 

We know that that trial has been postponed to December 2.  We do not know if this attorney will be involved in that case.  He had said earlier today to one of my colleagues that he would not set foot in a courtroom until he knows what happened to his wife. 

Now, earlier today, the sheriff‘s department held a press conference and gave some glean of information as to what might have happened to his wife. 

(BEGIN VIDEO CLIP)

JIMMY LEE, SPOKESMAN, CONTRA COSTA COUNTY SHERIFF‘S DEPARTMENT:  The cause of death.  The cause of death is listed as blunt-force trauma to the head.  The manner of death is listed as homicide.  From the moment we received this case, we have approached this case as a homicide. 

(END VIDEO CLIP)

WALKER:  Now, as we speak right now, the search is continuing—so, back to you, Catherine. 

CRIER:  All right, Noelle, Let me ask you a couple of questions.  It was reported that Dan Horowitz helped the police try and reconstruct events.  He went through the house to see where breakfast dishes were, other things, to try and figure out at what time this occurred.  Do you know what they were able to piece together there in the home? 

WALKER:  You know, that press conference they held that everybody from the media was here to cover, it was all of three, maybe three-and-a-half minutes.  The only information they released was that the autopsy took three-and-a-half hours, that she died of blunt-force trauma, that as they had gleaned from the very beginning that they were considering this a homicide, that she had been killed, but other than that, they‘re releasing really precious few details about what happened on that property. 

So, whatever Mr. Horowitz told investigators, investigators are not releasing that information right now. 

CRIER:  All right. 

Well, I want to bring in our all-star panel at this point, Barry Morris, a criminal defense attorney and good friend of Daniel Horowitz, Susan Filan, former prosecutor and criminal defense attorney, and defense attorney Joe Tacopina. 

All right, I want to start with you, Joe. 

You have got a lawyer that will be the first person that police look.  I think anyone who knows Dan Horowitz would be very, very hard-pressed to think that he had anything to do this.  But he did say, I was put in the back of a squad car.  I expected them to do that.  But then I helped them reconstruct. 

Would you be giving him any other advice at this point in time? 

JOE TACOPINA, TRIAL ATTORNEY:  I think Dan knows how to take care of himself in this situation, you know.

But this is something that is just so far beyond the pale.  You don‘t

even in his profession, our profession, you know, dealing with some of the bottom-feeders we—sometimes we to deal with, you just don‘t envision yourself in that position, even though you counsel people in that position all the time. 

But, obviously, I don‘t think and I‘m pretty sure that no one‘s going to be, at the end of the day, looking at Dan Horowitz as a suspect in this thing.  But, look, it‘s natural, Catherine.  Any time a spouse is murdered and there‘s no obvious suspect, the first person they‘re going to go to is the surviving spouse and that‘s just good police work. 

CRIER:  Well, there is this—quote—“caretaker” apparently sold Dan Horowitz the property, and, as part of the deal, was allowed to live in a trailer on the home—on the property for an extended period of time.  But Dan never filed a restraining order. 

This is an obvious place to look, but he also apparently had had various harassment concerns about prior clients.  Does that sort of come with the territory? 

TACOPINA:  Yes, depending on your clientele is.  And Dan‘s clientele was a lot of drug dealers, a lot of people in violent gangs.  And that does come with the territory, although, I got to tell you, it‘s still a rare thing, Catherine.

Look, if you think about it, when was last time you heard a defense attorney, no matter how drastic some of their clients could be, being subject of something like this?  Last year, we had a prosecutor, a year and a half ago, we had that federal prosecutor near Philadelphia, he was killed.  A few years—maybe a few months ago, even, maybe a year ago, we had on national TV, on Court TV, on your show, that matrimonial lawyer who was sort of hovering behind a tree getting popped at. 

(CROSSTALK)

TACOPINA:  So, as lawyers, either in matrimonial work or criminal work, you‘re dealing with people in just such emotionally unbalanced states at times.  And it‘s always a risk, but you don‘t expect this, especially as a defense attorney. 

Don‘t forget, you are the one, their last bastion of defense, if you will.  Even if these people are bad to the bone, you‘re still the one out there trying to preserve their constitutional rights.  And I think that‘s generally something at least someone like that even appreciates. 

CRIER:  Well, absolutely.

And, earlier tonight, I was talking to someone who knows him very, very well, saying, most of his clients loved this man.  He really gave himself to his cases. 

Let me bring in Barry.

Barry, you have been close to the Felix Polk family, to Felix Polk for years.  You still have an involvement with the family.  You may well be testifying in the Polk case.  Are police looking at any family members as persons of interest? 

BARRY MORRIS, FRIEND OF DANIEL HOROWITZ:  Well, the police have interviewed several people, including several members of the family.

But I think they‘re just casting a wide net, because I don‘t know what the clues they have, but it seems like they‘re just checking with everybody to see if anybody has any kind of information. 

But nobody in the family has any kind of motive.  I mean, you know, Dan‘s wife was a wonderful person.  And I don‘t even know if anybody in the Polk family knew her, except in terms of her relationship with Dan.  It‘s just entirely unlike—I think they‘re unrelated, frankly. 

CRIER:  Well, what about the—I won‘t say possible break-in, but there was some report about a door being jimmied at the Polk house.  I‘m not sure whether the son Eli reported this or another, but there was some concern there might have been an attempted break-in Saturday as well there. 

MORRIS:  This is the first I‘m hearing of it. 

CRIER:  OK.  Well, it was very much something about a door being jimmied.  And they weren‘t satisfied.  The police weren‘t satisfied that in fact someone had attempted to get into that. 

What about interviewing with the two sons, because it‘s quite a controversial trial, in that two of the sons are—basically, one‘s going to testify for his mother that dad planned to go after her and the other that mom planned to go after him.  So, you‘re saying there aren‘t necessarily the kind of feelings that could move over into this sort of event? 

MORRIS:  Well, first of all, the two sons—there‘s Eli, who is testifying for his mom.  Well, sort of the flip side of what the other attorney was just saying, this is the man representing his mom, so why would he want to harm anybody? 

CRIER:  But Gabriel was set to testify today, I believe.  And he was going to testify that his mother, in fact, planned to kill his father. 

MORRIS:  Well, I have known Gabe since he was in kindergarten.  And the police already talked to him and they checked to see if any marks. 

There‘s no way on God‘s green Earth that Gabe would have done anything like that.  He‘s just not that kind of person.  He had the unfortunate position to be there when his mother killed his father and being the first person to find the body.  So, Gabe is a good person.  This is not something that he‘s capable of doing. 

CRIER:  Well, as we just said, you look at everybody in this case, including Dan, even though it would be hard for anyone to imagine his involvement. 

Susan, let me ask you about the case itself, because, in a bizarre twist, now the Costa County Sheriff‘s Department law enforcement is looking into the murder of Pam Vitale.  And this is the very group that investigated murder in the Polk case that Dan Horowitz would have to cross-examine and go after, basically, defending his client. 

Do you think this will affect his representation of Susan Polk when the case is reset? 

(CROSSTALK)

SUSAN FILAN, FORMER PROSECUTOR:  No, I don‘t, Catherine. 

But, first, please let me offer my condolences to Daniel Horowitz. 

CRIER:  Oh, absolutely.

FILAN:  What a sweet man. 

And the irony of this is, he‘s so passionate about defending people accused of murder.  And here he is now cast in the same net as someone who may be a person of interest himself.  I don‘t believe for one minute that he is.  But what an awful position, for him now to need his own defense attorney. 

(CROSSTALK)

FILAN:  But, as far as the same people investigating this case that he would have had to cross-examine, law enforcement is law enforcement.  And they‘re basically pure-hearted, good-spirited people, and they want to help.  Here‘s a problem.  They‘re going to solve it. 

The Polk case was a problem to be solved.  This is a problem to be solved.  And it really doesn‘t matter what side of the fence you‘re on.  In end of, law enforcement‘s job is to solve a gruesome murder.  We have victims here.  We have...

(CROSSTALK)

FILAN:  I‘m sorry?

CRIER:  Go ahead, Joe. 

MORRIS:  I‘m sorry. 

(CROSSTALK)

MORRIS:  If I could interject, there is a real problem.  The same coroner who did the autopsy on Felix Polk is the coroner who did the autopsy on Dan‘s wife. 

CRIER:  What‘s the problem? 

MORRIS:  Well, the problem is that he was planning on attacking the coroner‘s findings in the Polk case.  And, in fact, his co-counsel raised this as an issue as a possible conflict and it‘s a possible reason why Dan might not go on.

(CROSSTALK) 

FILAN:  These are professional people here.  And that‘s not going to get in the way of an opinion. 

(CROSSTALK)

TACOPINA:  Catherine. 

(CROSSTALK)

CRIER:  Joe, you wrap it up for me.

TACOPINA:  Any good defense lawyer, any good prosecutor, any good police officer understands and knows how to separate your personal life from your professional life. 

FILAN:  Yes.  Exactly.  Well said.

TACOPINA:  As a defense lawyer, I could vigorously attack an agent, an FBI agent, or a police officer, if I don‘t think they‘re being candid or if I just need to undermine their credibility, but yet I have done it and I‘m also friends with some of the same people I have cross-examined. 

CRIER:  Sure.

TACOPINA:  You have to understand your roles. 

And if you sort of understand and outline and frame your role, it doesn‘t make you not a human being.  Dan is a grieving victim.  And he is someone who I‘m sure is going to cooperate with the police to try and make sure someone is convicted of doing this to his wife.  So I don‘t think he‘s going to play defense attorney.  And I don‘t think he needs a defense lawyer either, by the way. 

(CROSSTALK)

CRIER:  Hold on, Barry.

Some attorneys might build animus, but this is one that certainly does not. 

And, certainly, as you all spoke, our condolences to Dan Horowitz and his family. 

Barry Morris and Noelle Walker, thank you very much. 

Now, when we come back, tales of mercy killings, as Katrina floodwaters rushed in.  The latest on the investigation into what may have happened in the darkest hours of this deadly storm.

And an amazing rescue.  With time running out, police and good samaritans pull a driver from a burning car.  And you will hear from the people who risked everything to save a life.

Stay with us. 

(COMMERCIAL BREAK)

CRIER:  The bizarre twist in the Taylor Behl case.  Is the prime suspect finally telling the truth about how she died?  We will hear from Taylor‘s family tonight. 

(COMMERCIAL BREAK)

CRIER:  Welcome back to SCARBOROUGH COUNTRY. 

I‘m Catherine Crier, in for Joe tonight.  There are new developments and an arrest in the case of missing California woman Christie Wilson.  The 27-year-old was last seen October 5 leaving a casino near Sacramento.  Now, surveillance tapes show her leaving with 53-year-old Mario Garcia.  Police arrested Garcia on Friday after searching his home and finding unregistered guns. 

He is considered a person of interest in the case. 

Joining us now, the lead investigator, Lieutenant George Malim from the Placer County Sheriff‘s Department. 

Lieutenant, this guy is in on $1 million bail.  And I would suggest that‘s not because of a couple of weapons charges, an illegal club and some firearms.  I did notice that he‘s got a prior conviction from 1980, an assault with a deadly weapon, apparently has been interviewed about similar cases, similar to the one here with Christie. 

So what information was presented to the judge that convinced him to put $1 million bond on this guy? 

LIEUTENANT GEORGE MALIM, PLACER COUNTY SHERIFF‘S DEPARTMENT:  Well, obviously, that he‘s a person of interest in this case. 

CRIER:  Yes. 

MALIM:  You‘re aware of the prior record and the charges stemming from that, as well as what he was convicted of.  So, we relayed all that information to the judge and our concerns and he agreed and set the bail at $1 million. 

CRIER:  All right, questioned in previous cases with similar circumstances, that was the phraseology I saw.  What sort of other cases seem to be comparable?

MALIM:  The one we‘re aware of now is the one that you‘re speaking about. 

CRIER:  Well, that‘s not the previous cases we‘re referencing, so you can‘t talk about those right now? 

MALIM:  We‘re still doing our research.  We‘re not aware of anything right now as far as any other cases.  We just—the reason why we charged him with felony possession of a firearm was based on that conviction from 1981. 

CRIER:  OK.  I understand there were some hair and fibers in his car.  Preliminary tests had been conducted, full tests not concluded.  What are the preliminary results? 

MALIM:  Preliminary results were just to check the hair to see if it could be excluded as not being Christie‘s hair.  The preliminary exam could not exclude it, so we sent it off for DNA testing. 

CRIER:  All right.  The tape showed that they were together for several hours in the casino.  I‘m sure you have gone through all of those tapes, interviewed casino employees.  What sort of information about their activities there in the building during that time period? 

MALIM:  Well, we were able to speak to casino employees and they actually gave us a very good picture of what was going on, the conversation between Christie and Mr. Garcia and what type of relationship they had at that time. 

CRIER:  All right.  And what did that appear to be?  Did she meet him there?  Do you think she knew him before?  Was he or she a regular there at the casino? 

MALIM:  Well, she had been to the casino before.  And we‘re confident at this point that they just happened to meet by happenstance that night at the casino sitting at the same table. 

CRIER:  All right.  You have had ground searches, dogs out there, all sorts of activity.  How have you known where to look when you lost track of her on the tape?  What sort of information has given you some direction? 

MALIM:  No information in particular.  We searched those areas because they are closest and adjacent to the casino.  There‘s a lot of open land there with rice fields and things, and so we decided that would probably be the best place to search and we have hit it extensively with dogs on the ground and people on the ground, people in cars with dog teams, as well as at least six times, six days on the helicopter, in our helicopter, and the other day with the cooperation of Sacramento‘s Sheriff Department and Sacramento Fire Department.  We were able to use their helicopters in conjunction with ours to hit it again. 

CRIER:  You have got a 25-year-old conviction, that assault with a deadly weapon.  Who is the guy today?  Where does he work?  What sort of family?  What sort of activities? 

MALIM:  Well, he‘s married and has two children.  He works in the Sacramento area, not for a high-tech company, but he has something to do with computers.  And we are in the process of gathering more information from various areas to get a better picture of who Mr. Garcia is, not only for help in the case currently, but also for down the line. 

CRIER:  All right.  And what about some customers that you‘re looking for?  I understand that these are people who had interactions with Christie and Mr. Garcia, but I understand there are four individuals in particular you have been looking for? 

MALIM:  Yes.  We‘re looking for three, an Asian female, a white male, and an African-American male that were sitting at the table at the time that Mr. Wilson and Christie were—or, excuse me, Mr. Garcia and Christie were there. 

In particular, the white male purchased $180 bottle of wine and shared it with everybody at the table, so we are very interested in being able to locate those people, speak with them and see what else they can offer us. 

CRIER:  Is there any other person of interest that you‘re looking at right now? 

MALIM:  We‘re following up all leads that we have.  And we will follow them until they—if they keep going, we will keep following them.  If they end, we will stop following.  And obviously the trail continues towards Mr. Garcia at this time. 

CRIER:  And it‘s true then that there‘s no evidence of Christie going anywhere, being sighted, anything from the time she stepped out of the video range there in the parking lot of the casino? 

MALIM:  Correct.  We know she never came back in the casino.  We know she never went to her car. 

CRIER:  All right.  Thank you, Lieutenant George Malim.  Much appreciated. 

MALIM:  Thank you. 

CRIER:  All right. 

Now to New Orleans and the very latest on the investigation into whether patients at local hospitals may have been victims of mercy killings when Hurricane Katrina slammed to shore. 

NBC‘s Carl Quintanilla has that story for us tonight—Carl.

(BEGIN VIDEOTAPE)

CARL QUINTANILLA, NBC CORRESPONDENT:  Good evening, Catherine. 

Ever since Katrina, New Orleans has become a town of rumors and allegations, many of them aimed at the city‘s hospitals.  We decided to take a look at what may have happened at one of them the week of the storm. 

(voice-over):  On August 31, Memorial Medical Center sat trapped in 10 feet of water, no electricity or plumbing as the hospital‘s CEO recalled last month.

RENE GOUX, CEO, MEMORIAL MEDICAL CENTER:  We had about 160 seriously ill, bedridden patients left in the hospital. 

QUINTANILLA:  Patients so sick, suffering from cancer and heart conditions that one doctor told CNN, staffers discussed euthanizing them with injected drugs, that he saw a doctor holding syringes.  He says one staffer talked about it directly with him. 

DR. BRYANT KING, PRACTICED AT MEMORIAL MEDICAL CENTER:  And she said, well, you know, we talked about it, and this other doctor said she‘d be—she‘d be willing to—she would be willing to do it.  I was like, you‘re crazy. 

QUINTANILLA:  Bryant King was a temporary hire at Memorial and had worked there a month.  He couldn‘t be reached.  And the hospital denies the charges. 

(on camera):  Louisiana‘s attorney general is concerned enough that he‘s opened an investigation into every death at every local hospital during Katrina, 215 patients in all. 

KRIS WARTELLE, SPOKESWOMAN, LOUISIANA ATTORNEY GENERAL‘S OFFICE:  We are looking into the allegations of euthanasia as well.  We have absolutely no confirmation on that at this time, although we are taking reports very seriously. 

QUINTANILLA (voice-over):  Identifying a criminal cause of death could be difficult, especially when there were so many other threats to survival. 

DR. GLENN CASEY, MEMORIAL MEDICAL CENTER:  It was 105, 110 degrees. 

QUINTANILLA:  Dr. Glenn Casey is Memorial‘s chair of anesthesiology and denies any talk of euthanasia ever took place. 

CASEY:  It would have had to go through me, because all those type of drugs pass through me in my department. 

UNIDENTIFIED MALE:  There was no way we were going to desert the patients and the staff that depend on us.  And there was no way we were going to hasten anyone‘s demise. 

QUINTANILLA:  Doctors like John Cocomore (ph), one of the last to evacuate Memorial, say any attempt to end a patient‘s life would have been hard to keep secret, since most were surrounded by a brigade of volunteers. 

WAYNE HILL, CHIEF ENGINEER:  And they actually had people, nurses, and family members and all fanning patients, I mean, around the clock. 

QUINTANILLA:  Tonight, there are also questions about Dr. King and his relationship with Memorial‘s management.  At least one staffer tells NBC News, King was seen in a heated argument with an administration official as the floodwaters rose, angry the hospital had stopped taking in neighbors from outside. 

UNIDENTIFIED MALE:  The clothes that the individual came in with are laid out here. 

QUINTANILLA:  New Orleans‘ coroner is examining all of Memorial‘s bodies and is looking for suspicious causes of death.  But, because the bodies were so decomposed, some doctors suspect any test to determine the amount of drugs in their system may never be conclusive. 

(on camera):  And the attorney general‘s office says it may be two to three weeks before results of its investigation are made public—

Catherine.

(END VIDEOTAPE)

CRIER:  Thanks, Carl.  And we will keep watching the story as the investigation continues. 

But, up next, tonight, the stunning admission from the prime suspect in the death of the college student Taylor Behl, but are police buying the story?  We will hear from Taylor‘s family. 

And, just when you thought you‘d heard it all about the out-of-control Viking sex party, another revelation, the latest details coming up. 

(COMMERCIAL BREAK)

CRIER:  Coming up, an incredible rescue, a man trapped inside a burning car as rescuers scramble to free him.  We will hear from someone who was at the scene and hear what happened. 

But, first, here‘s the latest news from MSNBC World Headquarters. 

(NEWS BREAK)

CRIER:  New details from the pro football party boat that may have gotten out of control.  Were laws broken?  Wait until you see who the team is hiring in the wake of the party everyone is talking about.

And caught on tape, a driver pulled from his burning car.  We will hear from a man who was on the scene. 

Welcome back to SCARBOROUGH COUNTRY.  I‘m Catherine Crier, in for Joe. 

Tonight, we have those stories coming up, but, right now, shocking developments in the case of Taylor Behl.  According to “The Richmond Times-Dispatch,” Benjamin Fawley, the main suspect in her murder, called police to his jail cell and told them that Taylor Behl died during an intimate encounter they had in her car and that it was an accident. 

Taylor Behl‘s mother, Janet, responded at a press conference yesterday. 

(BEGIN VIDEO CLIP)

JANET PELASARA, TAYLOR BEHL‘S MOTHER:  Let‘s be clear.  Ben Fawley murdered my daughter.  His claim that it was accidental is just one more perversion of his truth in his ever-changing web of lies.

Taylor may have had one sexual encounter with Ben Fawley last April, but we know that she quickly became disillusioned with him when she started seeing what type of person he was.  I‘m absolutely confident that they will file charges against Ben Fawley when the time is right.

And this statement just trying to get out Taylor‘s side of things that

and to disprove Ben‘s—his lies.  I mean you know, first, he‘s abducted.  Well, how could she have been abducted, but been with Taylor.  How could he have been with Taylor at 9:30, when he wasn‘t?  He has just too many lies, too many different stories going on.  So, I‘m just here to get it out that, you know, we think he‘s a big, fat liar and should be charged.  And...

(END VIDEO CLIP)

CRIER:  Joining me now to talk about it, George Peterson, Janet Pelasara‘s attorney, and Nancy Pelasara, Taylor Behl‘s grandmother. 

Nancy, let me start with you. 

Your daughter was describing the fact that she had at least one sexual encounter in April, that she became disillusioned with him and at some point, she was in her dorm and left with him on September 5.  Do you have any idea about the nature of the relationship, the ongoing interactions between Taylor and Ben Fawley before she was abducted? 

NANCY PELASARA, GRANDMOTHER OF TAYLOR BEHL:  No, not really.  Knowing Taylor, I agree completely with Janet.  She might have had the one.  I‘m sure he made her feel pretty, admired her, and I‘m sure it made her feel very grown-up, but, after that, no. 

And I think when he said he was abducted, he had scratches and bruises.  I‘m sure my granddaughter was fighting for her life and did this to him. 

CRIER:  All right, so you‘re referencing the report from about 5:00 a.m. that following morning, after she disappeared, when he went to police and said he was kidnapped and all sorts of crazy things.  So, you think that may have been trying to justify marks they might have seen on him at that time? 

PELASARA:  Yes, definitely.  I think he was planning an alibi for himself.  And it‘s not going to work out.  It is not going to work. 

(CROSSTALK)

CRIER:  George, why do you think, over the objections of his attorney, did he call the cops and have them come to his cell and give them this story? 

GEORGE PETERSON, ATTORNEY FOR JANET PELASARA:  Well, I think the timing of it was very suspicious.  As you referenced earlier, just now, Ben Fawley had concocted this alibi that he‘d been abducted by these unknown number of individuals, taken somewhere, and dropped off. 

Well, the fact is that there was a report in the media on that same day earlier in the day that he made the confession that a gas station clerk had positively identified him as purchasing gas on the morning of September 6.  It‘s clear that he knew his alibi was shot.  He had to come up with something different.  And here he comes up with the new version.  Oh, it‘s an accident. 

We absolutely believe that Ben Fawley murdered Taylor Behl. 

CRIER:  All right.  What about the information regarding his mental condition?  There‘s nothing that I have heard thus far that would be any sort of insanity defense.  He‘s, after all, basically fessed up to the interaction, although he says she was choked by—quote—“accident.”

But I understand he‘s on Social Security disability, he‘s getting money for bipolar condition.  What sort of information do you have about all of that? 

PETERSON:  Well, we do know from his attorney that he does have severe bipolar decides and we also understand from reading other reports that he didn‘t like to take his medication. 

There was a report that one of the houses that he‘d broken into of an ex-girlfriend, he‘d stood over the roommate with a hammer and can of mace and told the roommate he didn‘t like taking his bipolar medication.  We also know that he had choked that ex-girlfriend and also had a very obsessive nature about him. 

CRIER:  All right.  Well, George, Nancy, thank you so much for being with us. 

And still back with us to our legal panel of experts.  We have got Susan Filan and Joe Tacopina.

All right, you have got a guy like this.  Don‘t know that you would want to defend him, necessarily.  But he‘s going to come forward and say accident.  Isn‘t really the burden of proof, even though it‘s not supposed to be, on the defense in a situation?  The state‘s going to have a great case and they put it on and he‘s going to have to put forward something if he goes with that defense. 

TACOPINA:  Right. 

It‘s obviously not a legally affirmative defense. 

(CROSSTALK)

TACOPINA:  But in this instance, assuming that statement that he gave to police passes constitutional muster, Catherine, it‘s going to be introduced and it‘s obviously not going to be a truthful statement.

The burden then shifts on the defense, not legally, but in terms of trying to get a jury not to convict from the jury box, want to vote right away.  You have to get up there and explain it away.  And, look, we don‘t know if this guy‘s just a cold-blooded murder who concocted some story.  Obviously, the facts don‘t look good for him.  But he could be a young guy who may be not that smart, may have some mental issues, and maybe he just panicked. 

Now, of course, panic is one thing.  Panic and running away and being scared that you‘re going to get blamed for something that was an accident is one thing, but to go through the elaborate sort of things that happened here regarding the story and the movement of that body and the condition that body I think we believe was in, those are all things that don‘t comport necessarily with a lack of premeditation. 

Those things generally are badges of a cover-up, of premeditation, of knowing that you did something intentionally wrong.  So, you know, that‘s going to be the big hurdle here. 

CRIER:  And that‘s going to be pretty tough. 

Yes, Susan, that‘s the issue I think prosecutors will be looking at, is whether or not they can establish any sort of premeditation vs.  manslaughter.  But I understand the body was in plastic and of course he is sort of talking about plastic wrap with the cops the next morning.  There were false plates on the car when it was found.  He collected false plates, as Joe described, disposing of the body as he did, all sorts of things. 

Would you be worried, based upon what you know right now, taking this forward as premeditated murder if you were prosecuting it? 

FILAN:  No, not at all.  I mean, these are classic signs of a cover-up.  This is somebody who knows the difference between right and wrong, appreciates the wrongfulness of his conduct, knows what he did and is trying to cover it up. 

And these elaborate stories that he‘s concocted to arguably help himself are very, very helpful to the prosecution.  First of all, an alibi defense is the easiest defense to pierce.  And his alibi is, I was essentially abducted by Martians.  That‘s ridiculous. 

Now this consensual sex gone bad is yet another failed attempt on his part to persuade people not to blame him for something that it looks like he not only did, but knew what he was doing and tried to cover it up. 

CRIER:  Joe, is anything about these ex-girlfriends, these other sorts of bad acts that would come into play here? 

TACOPINA:  Well, it could. 

Obviously, we need to have the facts developed a little bit more.  But, yes, there are—each state is individual as far as their rules of evidence are concerned, Catherine.  But, in general, you know, the rule that would apply here for a prosecutor would be lack of mistake, evidence of lack of mistake.  If we‘re going to say this was an accident here because of some rough sex, the defense, obviously, the prosecution would argue that these other allegations or other evidence of assault, of assaultive behavior on his ex-girlfriends of using violence would possibly come into the court, into the trial as proof of lack of mistake, which he‘s claiming this is. 

So there‘s a whole host of legal theories that gets that other evidence in, none of which is really good, but—but it would probably be very likely to come in, Catherine, if he had to get up and testify.  He would be able to probably be impeached on those allegations.  And in this case, if he doesn‘t testify, there‘s no defense. 

CRIER:  Joe, is there anything about the bipolar situation that helps him out? 

TACOPINA:  Well, it depends again what kind of medical backing he has for that.  I mean, you know, people are very skeptical of those mental defect defenses in general. 

You know the statistics, Catherine, are basically about 1 percent work.

(CROSSTALK)

TACOPINA:  Bipolar.  I mean, people are bipolar and function and go to work every day and don‘t wind up killing people because they‘re bipolar. 

So that‘s a tough road to hoe.  I don‘t think you‘re going to get many credible scientific experts to come into a courtroom and say, yes, a bipolar disorder would be a reason that he would slaughter this girl, cover it up and then pretend it was an accident.  That‘s a tough one. 

CRIER:  And, Susan, finally, sort of from the prosecutor‘s point of view, the police chief has been complaining about the leaking of information, wanting a gag order in this case, and yet, for the most part, it seems the information would help the prosecution.  What do you think his complaint is all about? 

FILAN:  Well, it can be very difficult as a prosecutor when you‘re trying to gather evidence and you‘re trying to keep things very careful and uncontaminated to have things subject to public opinion and scrutiny by a defense lawyer before it‘s really time. 

So they may be worried that their investigation is going to be jeopardized or impaired.  But what looks like is happening, ironically, is the defendant is getting wind of these developments and is continually spinning things that‘s digging his own grave. 

CRIER:  Sort of Like the Holloway case. Sometimes when you let them out or just leave them alone, let them start talking, they will take care of themselves. 

FILAN:  Does it sound like Peterson to you? 

CRIER:  I think so. 

(LAUGHTER)

CRIER:  Well, Susan Filan, Joe Tacopina, thank you both very much. 

TACOPINA:  Thanks, Catherine.

All right, I‘m joined now by Tucker Carlson, host of “THE SITUATION

WITH TUCKER CARLSON.”

Tucker, what is the situation tonight? 

TUCKER CARLSON, HOST, “THE SITUATION”:  Oh, Judge Crier, many situations. 

Just beneath the radar, a huge story, huge, potentially massive, country-shaking brewing in Washington.  Karl Rove, the most powerful unelected person in the White House, could be, sources say, indicted for perjury in the next 10 days or so.  We will have the latest on that.  Plus, an amazing story out of New York.  A school there has canceled the prom because the principal says the kids in the school are too rich and decadent and spoiled and orgy-prone.  We‘re going to have the father of one of those kids to rebut the principal‘s charges.  It‘s going to be good. 

CRIER:  They have seen the Viking tape. 

All right, thanks, Tucker, very much. 

CARLSON:  Thanks, Catherine.

CRIER:  OK.  Tune into “THE SITUATION” next at 11:00.

And yet another twist out of control, sex party making headlines tonight.  New details about what happened during that boat party full of pro football players.  Plus, why some people are not even a little bit surprised. 

And police, along with ordinary citizens, jump into action to save a life on the freeways of Los Angeles.  You will see and hear what happened. 

(COMMERCIAL BREAK)

CRIER:  Welcome back. 

More fallout over an alleged sex party involving players from the pro football Minnesota Vikings.  Now two former Viking players have come forward to allege that players fly in strippers for these parties every year. 

Well, joining me now to talk about this P.R. nightmare for the Vikings and the culture of sleaze in the NFL is ESPN Radio‘s Max Kellerman. 

Max, I got to ask you a question.  I understand this was a three-and-a-half-hour boat ride and only 40 minutes into this thing, the shore calls to the captain, says, turn around these things around.  Get back to shore.  A lot of activity in the first 40 minutes. 

MAX KELLERMAN, ESPN RADIO TALK SHOW HOST:  Well, this is not really news in the sports world.  In the news world, in the crossover news world, people are shocked. 

But forget about the sports world.  You ever been to a bachelor party? 

CRIER:  Me?  No. 

(LAUGHTER)

KELLERMAN:  I haven‘t either.

CRIER:  No.

KELLERMAN:  And the reason I haven‘t is because what I hear goes on at bachelor parties embarrasses me to even think about. 

What happened on this cruise is not so out of the ordinary, if what alleged happened actually happened.  It‘s not really criminal, and the people—I mean, the punishment for the players—if you engage in America in business and you engage in behavior that the people you‘re doing business with find inappropriate, they won‘t do business with you anymore. 

(CROSSTALK)

KELLERMAN:  And that‘s what happened.  They turned the boat around. 

CRIER:  You said something.  And, as far as I‘m concerned, no shock, surprise, there is gambling in the house, there were strippers and there was booze.  But there was also, they‘re saying, hookers and drugs.  Those do come under the headline of illegal. 

KELLERMAN:  Well, they said strippers.  I haven‘t heard hookers. 

CRIER:  Well, they said call girls that and—and whether they were call girls or strippers, that it escalated into sexual acts that would probably in this public arena be considered illegal. 

KELLERMAN:  Maybe. 

I mean, that will shake out.  We will see.  But, so far, the only thing that I have heard that would be—that sounds like it may have actually happened, there could have been—look, it‘s an NFL party.

CRIER:  Yes.  Yes. 

There might be drugs, we know, but if there were sex acts going on in a public area, I guess it‘s kind of quasi-illegal.  I mean, they did hire the boat out for a private party.  But I guess, technically, strictly speaking, it‘s criminal behavior. 

CRIER:  OK.  It‘s got to be criminally stupid, because I understand that they hired basically a company that has younger teenagers or young 20s staffing this sort of thing, kind of a family company.  Why didn‘t they hire a private yacht if they want to go slinking off and carrying on like this? 

KELLERMAN:  It was a bad idea.  I do think, if you‘re old enough to be serving drinks, you‘re probably old enough to watch adults of consenting age engage in consensual behavior with one another. 

CRIER:  Yes, well, they‘re in big trouble.  They‘re now trying to blame their 28-3 loss to the Bears on this, I think.  But there‘s something else that to me is lurking back behind all of this. 

These guys want public funds for a new stadium and their reputation is in the toilet right now.  There‘s a political equation to all of this mea culpa, isn‘t there? 

KELLERMAN:  Sure.  There definitely is. 

And it‘s a P.R. nightmare, which is why the Vikings have now hired an FBI guy to basically baby-sit people on the team.  But the way this whole development happened, there are various traditions on different teams.  On the Vikings, new players, rookies and free agent acquisitions and guys that they get in trades, are responsible for organizing a team activity. 

And, in this case, what‘s being alleged is, Fred Smoot, a well-known quarterback from Washington who signed with Minnesota, is a new player, and it‘s alleged that he organized this boat ride as kind of a big kind of a bachelor party type thing for the team.  That‘s what is being alleged is going on.

CRIER:  Yes, but we now know that this is allegedly an annual event. 

It wasn‘t, oops, once in a time, we made a mistake.  They do this every year.  So, let‘s get it clear. 

KELLERMAN:  Yes.  Oh, yes. 

CRIER:  Go ahead.

KELLERMAN:  Every year, there are rookies and there are new acquisitions, and, every year, those are the players—it‘s not—it‘s almost like a hazing ritual or an initiation process. 

CRIER:  OK.  Well, the team owner has come along and said fines, suspensions.  Nobody is exempt from this sort of thing.  What do you expect is going to happen?

KELLERMAN:  I expect the Vikings will be on their best behavior from now on.  And I suspect that you won‘t be hearing too much more, although with the Portland Trailblazers in the NBA, there was one thing after another several years ago.

And every time you thought, you know what?  Things will calm down over there, they didn‘t.  Also, for sports fans out there, football fans especially, Randy Moss, the Vikings receiver who had—got so much bad publicity and was considered a cancer in the clubhouse and he made the team worse and, oh, everything is out of control, well, he‘s not on the team anymore and the biggest scandal in the team‘s history maybe just occurred.  So...

CRIER:  All right.  So you think they‘re going to get their funding, their new stadium, a couple of people might be fined, and this will all go away? 

KELLERMAN:  Yes. 

And I think, in the long run, it might be better for the NFL or at least the Minnesota Vikings if they kind of get their P.R. under control.  In the long run, it could be a blessing. 

CRIER:  Well, I hope they get themselves under control, not just the p.r. 

Max Kellerman, thank you very much. 

KELLERMAN:  Thank you. 

CRIER:  OK.

Now, when we come back, saved from a fiery crash on a California freeway.  You will see the amazing video and hear from the man who caught all of this on tape next. 

(COMMERCIAL BREAK)

CRIER:  An amazing rescue caught on tape on a Southern California freeway. 

This all started when a man was part of a multi-car accident.  His legs were pinned behind the wheel as his car begins to go up in flames.  But his life was saved by brave police officers and ordinary citizens, who scrambled to get him out seconds before the entire car went up in flames. 

Joining me tonight on the phone is one of those rescuers, a photographer who was able to get some of this on tape, Jack Klian.

Welcome to you.

Jack, we see things like that on tape and many people wonder, what would I do in that circumstance?  Can you—can you remember?  Did things happen so quickly or can you kind of remember your reaction in thinking about going to the rescue? 

JACK KLIAN, EYEWITNESS:  Well, actually, I approached—when I was (INAUDIBLE) by the vehicle, I noticed the guy was yelling. 

He was in pain.  And I tried to help as much as I can, so I can get him out of the car.  I couldn‘t because he was trapped.  He was indicating that he was trapped, he can not move.  And I tried my best.  And I got some fire extinguishers.  We tried to contain the fire, so we can rescue him out of the vehicle. 

CRIER:  Right.  Was there ever a moment, because we are seeing tape where other people came to help you, but was there ever a moment you thought that that man might not be pulled from the car and literally would burn to death there? 

KLIAN:  Actually, that was the only thing was going through my mind, and this gentleman literally in front of my eyes was going to burn.  And that‘s why I ran towards the Greyhound bus.  There was a Greyhound bus that I waved down, so I can get the fire extinguisher from the Greyhound bus, which had a big extinguisher.

That actually saved us to contain the fire in certain matters until we could pull him out. 

CRIER:  All right

Tell me about using a camera in a circumstance, because that‘s my other question, being in this business.  It is so horrific.  And, certainly, there were plenty of other people that came in, that pulled this guy out.  But at what point did you think to yourself, well, I want to record this and literally not knowing whether this man would survive or not? 

KLIAN:  Actually, we were talking to him in a way, because he was in pain, that—the circumstance was very, very difficult, because it was very tough. 

And, as you see in the video, it was very tough to even record sometimes.  But I noticed that he was in the process of coming out, because we were trying to get him out of there, yanking arms.  And, as soon as we got the process of doing that, I turned the camera on and start rolling on it. 

CRIER:  All right, did you know about other people, because it was a multi-car accident?  Everybody else all right? 

KLIAN:  Everybody else had a neck (INAUDIBLE) pains.  But he was the only one actually trapped in a burning vehicle. 

CRIER:  OK.  All right, well, just some amazing pictures.

And good work.  Thank you, Jack Klian.

Now, we should mention that the man pulled from the car is recovering in the hospital tonight. 

And we will be right back with the very latest on another possible hurricane heading our way. 

(COMMERCIAL BREAK)

CRIER:  Yet another named storm heading for the Gulf.  The latest on Tropical Storm Wilma next. 

(COMMERCIAL BREAK)

CRIER:  A shift tonight in the projected path of Tropical Storm Wilma.

Forecasters at NBC‘s Weather Plus now show the storm tracking toward the Eastern Gulf of Mexico and the Florida coast.  Earlier models had the storm heading for Mexico‘s Yucatan Peninsula.  But now it looks like Wilma may be headed for Florida‘s western coast.  Katrina-ravaged New Orleans and Mississippi looks like they‘re out of the path for now.  The storm officially put 2005 into the tie for the busiest hurricane season on record. 

Stay with MSNBC for the very latest.

That‘s all the time we have.  I‘m Catherine Crier, in for Joe. 

“THE SITUATION WITH TUCKER CARLSON” starts right now—Tucker.

TUCKER CARLSON, HOST, “THE SITUATION”:  Thank you, Catherine.

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

Copy: Content and programming copyright 2005 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2005 Voxant, 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 Voxant, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation

Watch Scarborough Country each weeknight at 10 p.m. ET

Discuss:

Discussion comments

,