Guest: Diane Dimond, Leslie Crocker Snyder, Joe Tacopina, Trent Copeland, Chris Filippi, Mercedes Colwin; Joel Androphy, Robert Heim
JEANINE PIRRO, GUEST HOST: Coming up, both sides in the Michael Jackson case back in court.
PIRRO (voice-over): Some say Santa Barbara‘s D.A. has made it his mission to convict Michael Jackson. Today, Jackson‘s lawyer said he‘s gone too far gathering evidence he has no right to have. Now Tom Sneddon, the D.A. himself, will have to testify.
Plus, the prosecution in the Scott Peterson trial switches tactics, from his affair with Amber Frey to the discovery of the bodies of his wife and unborn son. Is the new approach getting the prosecution‘s case back on track?
And car thieves watch out, police have a new secret weapon in store for you.
The program about justice starts right now.
PIRRO: Hi everyone. I‘m Jeanine Pirro. Dan is off today. First up on the docket, attorneys for Michael Jackson taking aim at The man prosecuting the case. In a hearing today in Santa Barbara County, Jackson‘s lawyers argued District Attorney Tom Sneddon went too far in his investigation of the entertainer. They claim Sneddon is guilty of—quote -“outrageous misconduct for invading the office of a defense investigator.”
Court TV‘s Diane Dimond has followed the Jackson investigation since its start and she was inside the courtroom today. She joins me now. Diane, what happened today?
DIANE DIMOND, COURT TV: Well, in a legal sense, really Jeanine almost nothing. Almost everything on the docket was delayed. The long holiday, the voluminous 4,000 pages of discovery material, it‘s just such—it‘s gotten to be such a complicated case that everything was delayed until July 27, almost everything. The big news, of course, is what you said. Tom Sneddon himself was subpoenaed a few days ago along with about at least six police officers and it all has to do with a raid on that private detective‘s office down in Beverly Hills. The defense team wants to...
PIRRO: Diane, Sneddon is the D.A., is subpoenaed by the defense to testify at a hearing. What would they possibly want to know from Sneddon?
DIMOND: Well, they want to know what he knew about Bradley Miller. Bradley Miller is a private detective. Did he know that he was under the employ of Mark Geragos, the one-time defense attorney, or did he think, as Mr. Sneddon seems to be indicating, that it was Michael Jackson who hired this private detective? Because if it was Michael Jackson, then he will argue, I think, that there‘s no attorney-client privilege on the evidence they got out of that private detective‘s office and it was pretty voluminous.
PIRRO: And so the evidence that was seized that they‘re looking to suppress and have Sneddon testify about, involves what?
DIMOND: Well, we got a little bit of a list. Yes, indeed, even though there‘s a gag order, we‘ve gotten a few redacted pages, and we know that they got at least eight videotapes, two audio tapes, a fax memo to Geragos, that‘s all it says, so does that prove that Geragos had hired him? And then there‘s a check stub from Michael J. Jackson. Well, my, does that prove that Michael Jackson hired him? It goes on and on—a hard drive, computer discs and what not. None of this has actually been available to the D.A. because it was always in dispute. So it‘s up to the judge to decide if the D.A. can actually look at this, use it as evidence in the case.
PIRRO: Well, it seems, Diane, the whole idea of actually subpoenaing the district attorney himself in an office which I believe has about 40 prosecutors, is very unusual. I‘d be curious as to Sneddon‘s reaction when he got the subpoena and also the reaction as it relates to his vacation.
DIMOND: Right. There was a lot of reaction to that today. Mr. Sneddon stood up at least twice in court Jeanine and he said, Your Honor, I‘m ready to go. I got my subpoena. I‘m ready to testify here in open court. I‘ve got nothing to hide. This is a real hands-on district attorney. You might think it‘s kind of strange for the D.A. to actually go on a search and seizure, but apparently not for this one because he still is often in the courtroom doing trials and what not...
PIRRO: Diane, I have to pipe in and tell you—I have to tell you, I don‘t think it‘s unusual at all for a D.A. to be involved in a search warrant...
DIMOND: Good for you.
PIRRO: Thank you, though, for admitting that there are D.A.s who actually do get their hands dirty.
DIMOND: Oh yes. No, he does a lot of trials and does a lot of stuff himself. But then because things were not ready to proceed today, the judge said OK, everybody come back on July 27. Well, then Mr. Sneddon stood up and he said Your Honor, you and I have had this conversation on the phone, I have something of a personal and a financial nature, he said, that makes it that I can‘t be here that day. He said it had to do with his marital situation with his wife and a planned vacation. I found out that Mr. Sneddon has been married about 37 years, Roman Catholic, has nine children, has only had one away vacation with his wife in 37 years.
PIRRO: And it was going to be interrupted by his needing to testify in this case.
PIRRO: How did it end up, Diane?
PIRRO: What ultimately...
DIMOND: Pardon me?
PIRRO: How did it end up?
DIMOND: Well, it was interesting because the judge said, you know, I don‘t want to make you mad, Mr. Sneddon, but you know you‘re going to have to come back on July 27 and we all left the courtroom. Later, not much later, but later, Mr. Mesereau came back and put on the record that he would take a taped deposition from Mr. Sneddon so he could go on his Alaskan cruise. That was nice.
PIRRO: Yes, it certainly is nice and you know what, it‘s a courtesy that you see in courtrooms, usually if one side is courteous to the other, we continue to see that kind of behavior throughout the course of the trial, which of course is what the public wants to see. But let me ask you this, Diane, was Michael Jackson in court today?
DIMOND: No, Michael Jackson was not here today. We thought maybe that he would have to come on August 16. That‘s when Tom Mesereau has indicated he will come forward and challenge other search warrants, maybe all the search warrants and there are 54 of them so far. He wants to take live testimony, so there was a question, should the defendant be there.
DIMOND: The judge here, Rodney Melville, said today that no he doesn‘t have to be here.
PIRRO: Do we know where he is, Diane? Michael, do you know where he is...
DIMOND: You know everybody always asks me that. Everybody always asks me that Jeanine. Somebody—another reporter said to me today, we think he‘s out at Neverland. Well, I think he‘s still in Florida. I think he‘s staying in a sort of a mansion area outside Orlando, and I have learned that Mr. Mesereau and other attorneys that are close to the case will be meeting with him next week down in Florida.
PIRRO: OK, Diane. Stay with us.
When we come back, we‘ll bring in our legal panel to tackle the Jackson case and the D.A. that everyone is talking about.
Later, he‘s become the poster child of corporate greed. Now former Enron CEO Ken Lay has been indicted, but can he be convicted?
And it‘s the latest tool police are using to catch car thieves at work. Police call them bait cars and they‘re working.
Send your e-mails. Send them to firstname.lastname@example.org. I‘ll respond to some of them at the end of the show.
PIRRO: Coming up, is the prosecutor in the Michael Jackson case going too far trying to convict the pop star? Our legal panel weighs in.
(BEGIN VIDEO CLIP)
TOM SNEDDON, SANTA BARBARA DISTRICT ATTORNEY: I heard a lot of apologists for Mr. Jackson say some things that I think we can, the sheriff and I can talk about that I think are important for you as the media and for the public who is going to hear these things to be told. I heard a lot of people saying it was d’j… vu. I heard a lot of people saying it was another rip-off by some family to get money. I want to make several things clear about why this is different from the last investigation.
(END VIDEO CLIP)
PIRRO: That was District Attorney Tom Sneddon, announcing the arrest warrant issued for Michael Jackson back in November. Jackson‘s attorneys are now arguing that Sneddon went too far in his investigation. That he invaded a defense investigator‘s office and seized materials covered by the attorney-client privilege.
They say—quote—“The prosecutors bullied and argued with witnesses. The prosecutors became involved in personal argument with other witnesses. At least once the prosecutor vouched for his own version of events while not under oath and accused witnesses of lying. Witnesses were told not to provide information to the defense.”
Let‘s bring in our team of experts—retired New York Supreme Court Judge Leslie Crocker Snyder, criminal defense attorneys Trent Copeland and Joe Tacopina. Joe represents Frank Tyson, who‘s believed to be one of the un-indicted co-conspirators in the Jackson case. And of course we bring back Court TV‘s Diane Dimond, who was inside the courtroom today.
Here‘s the question. The criticism of Tom Sneddon, I think has risen to the level that we haven‘t heard against a D.A. in a long time. Is this justified, Leslie?
HON. LESLIE CROCKER SNYDER, FORMER NY STATE JUDGE: You know Jeanine, it‘s really difficult to say without studying the grand jury minutes. One of the functions of the judge, as you well know, is to read those minutes and to see if there was really gross overreaching. In terms of the attorney-client privilege, there‘s going to be a hearing and then the judge will determine whether or not the D.A. knew or should have known that, if in fact the investigator was hired by one of the attorneys for Jackson. So there are a lot of legal issues here, but I don‘t really think thus far that we‘ve seen any concrete evidence that Sneddon is overreaching.
PIRRO: Well you know what, Leslie, let me just read this. According to the defense motion to suppress, Mr. Sneddon went inside the building and examined the roster of occupants, photographed the roster, and climbed the stairs to the second floor in an unsuccessful attempt to find a door with Mr. Miller‘s name on it. Mr. Sneddon, the D.A. of course, went across the street from the building and took a series of photographs of the building. He then found a nearby phone booth and looked up Mr. Miller in the yellow pages.
CROCKER SNYDER: Well...
PIRRO: Now, you know, I‘ve got to say, and Joe, let me ask you this, if you have—or you are moving to suppress evidence based upon the fact that the D.A. is actually assisting in the investigation of a case that‘s being prosecuted by him and his office, what‘s so wrong with all of the things that Tom Sneddon allegedly did?
JOE TACOPINA, CRIMINAL DEFENSE ATTORNEY: Well, Jeanine, I think it‘s more the cumulative effect. I mean what they‘re alleging here, what‘s being alleged in this motion is that the D.A. is biased, that he‘s not being fair and objective. That he has sort of a vendetta...
UNIDENTIFIED FEMALE: But Joe...
TACOPINA: ... whoa, whoa, whoa, and here‘s what‘s so wrong. I mean, you know, aside from the fact that—and you saw snippets of the grand jury and look I‘m not under a personal gag order, but I can‘t go into what‘s in the grand jury and so on and so forth, but in the motion that Mesereau filed, you‘ll see he put snippets of the grand jury testimony in there where the district attorney is questioning a witness and then saying you know that‘s not how far the conversation went. It went like this. I remember it the right way. That‘s an untoward witness. You can‘t do that when you‘re questioning a witness who‘s under oath and you‘re not...
PIRRO: But you know—Joe, you know as well as do I that every prosecutor when you have a witness in the grand jury, you certainly have the right to say...
PIRRO: ... to that witness, isn‘t this what you‘ve said in the past, this is true, not true?
TACOPINA: Sure. Of course Judge...
PIRRO: OK, and it‘s on the record by the way...
TACOPINA: You know—because I‘m telling you I was part of that conversation. Here‘s how it went. That‘s an untoward witness...
UNIDENTIFIED FEMALE: But you know Joe...
UNIDENTIFIED FEMALE: Joe...
TACOPINA: Aside from that, though, Jeanine wait...
PIRRO: I‘m going to bring Trent in. Come on in Trent.
PIRRO: We don‘t have that much time Joe.
TACOPINA: Wait, wait, wait, wait...
PIRRO: Hang on...
PIRRO: Trent, go ahead.
TRENT COPELAND, CRIMINAL DEFENSE ATTORNEY: Look...
PIRRO: Trent, go ahead...
TACOPINA: ... how many times have you gone on personal surveillance?
TACOPINA: ... how many times have you gone on personal surveillance?
PIRRO: Let‘s go to Trent, we‘ll come back to that, Joe.
PIRRO: Trent, talk to us.
COPELAND: You know look, I don‘t get a lot of chances to pile on district attorneys, because generally they happen to do a very good job, but I‘m going to pile on this one. I agree with Joe. This prosecutor, Jeanine, has been out of control from the very beginning, from that inflammatory news conference that we saw at the top of the show to this excessive bail, $3 million bail for Michael Jackson. Phil Spector is charged with murder. He‘s got a $1 million bail. To now this, scaling the walls and conducting an investigation on his own. Could you imagine if Marcia Clark had climbed that wall with (UNINTELLIGIBLE) and Fuhrman? Can you imagine if Mark Hurlbert had...
UNIDENTIFIED FEMALE: Jeanine...
UNIDENTIFIED FEMALE: If you‘re going to put...
PIRRO: Diane—go ahead Diane.
DIMOND: Marcia Clark was at O.J. Simpson‘s house. She went there several times. She was an assistant D.A., I mean...
UNIDENTIFIED MALE: That‘s different.
DIMOND: ... let‘s make it clear here.
COPELAND: That‘s different, Diane...
DIMOND: I mean I‘m not sticking up for Sneddon because...
PIRRO: Yes, but you know what Trent...
UNIDENTIFIED FEMALE: You‘re wrong on that.
PIRRO: ... the truth is that prosecutors every day, at least the prosecutors in my office, respond to homicide scenes, they follow a case from the actual time that the body is found, until the trial...
UNIDENTIFIED MALE: That‘s different. That‘s different...
PIRRO: Leslie, is that your experience also?
UNIDENTIFIED MALE: That‘s a crime scene.
CROCKER SNYDER: Of course that‘s my experience, but Joe, Joe, Joe...
CROCKER SNYDER: ... you have to look at Sneddon‘s conduct in an entirety. Now it does appear...
TACOPINA: That‘s right.
CROCKER SNYDER: ... he‘s a highly aggressive prosecutor, maybe too much so...
CROCKER SNYDER: ... but still, whether his entire grand jury presentation was unfair is something only the judge can determine in looking at all of it. You can take lines from here or there, sure, I don‘t think it‘s great for the D.A. to go conduct what a cop should be doing, but it doesn‘t—he didn‘t do anything that terrible. So we‘ve got to look at everything.
DIMOND: You know Jeanine...
DIMOND: ... the one thing I wonder about is why in the world, you‘re going to go and raid a private detective‘s office, why in the world if you‘re the district attorney or any of the other officers that went with, why didn‘t they take a special master? That‘s not an unusual step...
DIMOND: Take an unbiased person to go with you.
CROCKER SNYDER: A special master?
PIRRO: Leslie, a special master is something...
CROCKER SNYDER: No...
PIRRO: ... that is part of the California statutes. That is not at all unusual. We wouldn‘t necessarily...
CROCKER SNYDER: No.
PIRRO: ... do that in New York.
UNIDENTIFIED FEMALE: Sure.
PIRRO: They do it in California.
UNIDENTIFIED FEMALE: OK.
PIRRO: But you know what Diane, there‘s another piece of this and I want to bring Joe back in. It‘s not unusual, Joe, to have the D.A. actually get involved in the investigation of a case.
TACOPINA: Absolutely not Jeanine...
PIRRO: OK, so what‘s the problem?
TACOPINA: ... the D.A. should visit crime scenes, so on and so forth, but here you had the D.A. actually scaling stairs, doing surveillance of a place that they were going to do a search warrant on. I mean...
UNIDENTIFIED FEMALE: What do you mean scaling stairs...
TACOPINA: And by the way...
UNIDENTIFIED FEMALE: He walked up...
TACOPINA: ... by the way...
PIRRO: ... to the second floor.
UNIDENTIFIED FEMALE: If it‘s OK for him to be there, why can‘t he climb...
UNIDENTIFIED FEMALE: ... he didn‘t scale them.
TACOPINA: ... D.A. doing personal surveillance? That‘s what a cop is supposed to do...
UNIDENTIFIED FEMALE: No, no, no...
CROCKER SNYDER: Generally, but there‘s nothing wrong with it.
PIRRO: Joe, what the D.A. did here was identify Miller as working or having an office in a particular building...
PIRRO: ... that information was used as probable cause.
TACOPINA: That happens a lot. That happens a lot...
UNIDENTIFIED FEMALE: Sure it does...
UNIDENTIFIED FEMALE: So what...
PIRRO: Joe, D.A.s are hands on and you know it. Just—you know what, he‘s doing his job...
TACOPINA: You have no idea...
PIRRO: All right, Trent...
PIRRO: ... I want to hear the final word from you Trent. Any of this going to be suppressed?
COPELAND: Final word—Judge Crocker is correct. I think we should look at this in its entirety. I don‘t think it‘s going to be suppressed but I think it should be. I think the remedy is...
COPELAND: ... this prosecutor ought to recuse himself from this case.
PIRRO: I don‘t think so, but thank you Trent...
CROCKER SNYDER: It won‘t happen...
PIRRO: ... Diane Dimond, thanks for your reporting. Leslie, Trent and Joe, stay with us.
Coming up, the prosecution tries something new in the Scott Peterson trial focusing on the discovery of the bodies of his wife and unborn son. Is it enough to get the prosecution‘s case back on track?
And if police get their way, stolen car chases like this could be a thing of the past. They‘ve got a new tool to stop car thieves and it‘s working.
PIRRO: Welcome back. Pictures like these on TV almost always get our attention. A stolen car involved if a high-speed chase with the police. But every year, nearly 1.2 million cars are stolen in this country. But now the police have figured out a safe way to beat the car thieves at their own game.
NBC‘s Tom Costello has the details.
TOM COSTELLO, NBC NEWS CORRESPONDENT (voice-over): It‘s become a staple of afternoon drive time, a stolen car and a dangerous police chase. With a car stolen every 27 seconds in America, police and insurers have found a proactive way to get car thieves off the street safely.
SGT. LARRY YATES, COLUMBUS, OH POLICE: This is our record, right here. He took the car in seven seconds.
COSTELLO: They‘re called bait cars.
UNIDENTIFIED MALE: (UNINTELLIGIBLE)
COSTELLO: Keys left inside the cars are loaded with cameras and GPS satellite trackers.
UNIDENTIFIED MALE: It‘s for sale.
COSTELLO: And rigged so police dispatchers can follow the car on a computer, then kill the engine and lock the suspects inside once they‘re surrounded. For most, the whole thing comes as a big surprise.
UNIDENTIFIED MALE: Damn, he got a gun out. They must‘ve knew this was stolen.
COSTELLO: Every move, every word recorded for use in court.
UNIDENTIFIED MALE: Hit it.
COSTELLO: Here, two brothers celebrate scoring a sedan while police trace them to the scene of their next crime, a home burglary.
UNIDENTIFIED MALE: These are the cars that we‘ve had stolen this month in this particular area.
COSTELLO: Investigator Wayne Johnson (ph) runs a fleet of bait cars from a dusty, undercover warehouse in Minneapolis. He won‘t say how many, but within the first six months of putting them on the street, auto theft here dropped by 35 percent.
UNIDENTIFIED MALE: We want people to believe that there‘s a car out on every street. You know, in every neighborhood.
COSTELLO: And is there?
UNIDENTIFIED MALE: Yes.
COSTELLO (on camera): As soon as the car thief opens the door, the cameras inside are triggered and you never know where they‘re hidden. They could be in the heater. It could be in the rearview mirror. It could even be hidden in the clock. Police here in Minneapolis say with this little camera, they have never lost a case.
(voice-over): In Columbus, Ohio, where 8,000 cars are stolen each year, police couldn‘t resist adding their own special gotcha.
UNIDENTIFIED MALE: It‘s a setup car.
UNIDENTIFIED MALE: Cuz, it‘s a setup car.
UNIDENTIFIED MALE: It distracts them for the two to three seconds it takes us to get up to the car, put them at gun point, get their hands up and secure them.
UNIDENTIFIED MALE: Yes sir, my hands are up.
COSTELLO: And police say most suspects aren‘t just car thieves; most have guns, drugs and arrest records.
COSTELLO: Grand theft auto, charged whether driving or just along for the ride.
Tom Costello, NBC News, Minneapolis.
PIRRO: Still ahead, week six in the Scott Peterson trial. The prosecution has called nearly 70 witnesses so far. This week focusing on where the bodies of Scott‘s wife and unborn son were found and how Scott could have put them there. But are they making their case?
Later, an amazing rescue. A woman abducted at gunpoint tracked down by police thanks to a very alert motorist.
And your e-mails—send them to email@example.com. I read them and try to answer them at the end of the show. Stay with us.
PIRRO: Up next, the prosecution in the Scott Peterson trial switches tactics from his affair with Amber Frey to the discovery of the bodies of his wife and unborn son. Is the new approach getting the prosecution‘s case back on track? First the headlines.
PIRRO: Now to the Scott Peterson case. Only two days of testimony this week. Court resumes on Monday with the cross-examination of a sergeant in the Modesto Police Department. He helped search the San Francisco Bay after the bodies of Laci Peterson and her unborn son were found. But in just those two days, the prosecution may have gained some significant ground with the jury, switching focus from Peterson‘s affair with Amber Frey to the gruesome discovery of the bodies of Laci and her unborn son. And prosecutors show how Peterson could have transported his wife‘s body to the bay without anyone noticing.
MSNBC‘s Jennifer London has the week-end testimony.
JENNIFER LONDON, MSNBC CORRESPONDENT (voice-over): This may look like an ordinary pickup truck and the toolbox in the bed certainly doesn‘t seem out of place. But according to prosecutors, this is how Scott Peterson removed the body of his dead wife from their home without detection. A controversial demonstration on Wednesday showed how a pregnant woman very similar in size to Laci could be squeezed inside.
DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR: They showed that this woman, this same woman could very easily fit in Scott Peterson‘s truck‘s toolbox and be hidden from prying eyes the whole time that she was transported from the Peterson home to the warehouse.
LONDON: From the warehouse, the prosecution says Peterson drove to the Berkeley Marina with his fishing boat. Prosecutors also showed how the woman could fit inside the small boat, curled up in the fetal position on the floor.
JOHNSON: It‘s convincing, and it answers a lot of questions, and more importantly, it‘s graphic and it‘s powerful and it sticks in the jury‘s mind.
LONDON: Also in the jury‘s mind, graphic images of the remains of Laci and her unborn son Conner. Elena Gonzalez described how she stumbled upon the half submerged torso of Laci. Michael Looby was walking his dog when he discovered a small body, later identified as baby Conner. The testimony and pictures too graphic for some.
JOHNSON: Those jurors were shaken up. Juror number one in particular, who is a woman of roughly Laci‘s age, couldn‘t even look at the pictures.
LONDON (on camera): And neither could Scott Peterson or his parents. They looked away when the photos were shown. The last witness to take the stand this week, a detective with the Modesto Police Department. He‘ll be back on the stand when court resumes on Monday.
Reporting in San Francisco, Jennifer London, MSNBC.
PIRRO: Were the images seen this week enough to get the prosecution‘s case back on track? Let‘s bring in our team of experts.
Joining us now is KFBK Radio reporter Chris Filippi, who has been in the courtroom and retired Supreme Court Justice Leslie Crocker Snyder, criminal defense attorney Trent Copeland and criminal defense attorney Joe Tacopina.
Well, how—I‘m going to start with you, Chris, what was the reaction, what was the feeling and the emotion in the courtroom when these images were shown?
CHRIS FILIPPI, KFBK RADIO REPORTER: Oh, there was clearly a lot of emotion in the courtroom. For the most part for the prosecution, it really made an impact with the jury, a jury that had been pretty much bored with this case I believe for the first four and a half weeks, but the prosecution slowly starting to bring them in with this very emotional evidence, seeing the pictures so gory and so graphic. It caused some to look away. Scott Peterson himself couldn‘t bear to look at the photos. He looked away as well. I even saw some of the members of Scott‘s family actually tear up in court, so it was a very difficult time for a lot of people in the courtroom.
PIRRO: And you know when you say, Chris that you know, for the four and a half weeks before then they were rather inattentive, do you think the prosecution now has the flow going with them in terms of the attention of the jury?
FILIPPI: I don‘t know if I‘d go that far, but they‘re certainly starting to make progress. One of the things that‘s been lacking in this case for the prosecution is providing context for the jurors to understand all of these random facts that are being presented by the prosecution. They‘re starting to provide a little bit more of that right now. I think the turning point was when they called Shawn Sibley to the stand and she really talked about what Scott Peterson was like the day she met her and how she went on to eventually introduce Scott to Amber Frey.
PIRRO: Now I‘m going to go to Leslie. Leslie, you know the whole idea of having a demonstration in the courtroom of the photos of a woman of approximately the same size that Laci was and the same height, showing the possibility of her being in that 14-foot aluminum boat, how powerful do you think that is for a jury?
CROCKER SNYDER: Incredibly powerful and I have to say I‘ve allowed in even more graphic demonstrations in my courtroom. Like in the doctor case, the reenactment of throwing a body out of an airplane over the ocean, it is so impactful on the jury and I think it‘s completely fair when it‘s done with the right provisions. You have to give a cautionary instruction to the jury and here it was a woman, the same size. Of course, the defense is always outraged when these photos or demonstrations are allowed, but I think this is extraordinarily powerful evidence for the prosecution and hopefully they can keep some kind of momentum—well, something going, because they‘ve done such a poor job until now.
PIRRO: Trent, do you think this demonstrative evidence should have been allowed?
COPELAND: You know Jeanine, I don‘t think there‘s you know any possibility that this evidence should have come in over Mark Geragos‘ objection. It‘s violative of what‘s called the evidence code here in California, 352, which means it‘s inflammatory and prejudicial, and the problem is you know there‘s—we call it the incomplete hypothetical. This is an incomplete hypothetical demonstration. The reality is if this was going to go forward, the other half of the demonstration should have been how did he then take the body with concrete anchors and then tip it over without the boat falling into the water and its contents including Scott Peterson falling into the water.
UNIDENTIFIED FEMALE: But Trent...
COPELAND: It‘s an incomplete hypothetical. We‘ve got a woman—
Jeanie, we‘ve got a woman who is alive, who had to literally curl herself up in the fetal prosecution. Laci Peterson, according to the prosecution‘s theory, was dead; rigor mortis had set in. There was no way that Scott Peterson...
PIRRO: Trent, isn‘t it up to the defense at this point to question the validity of the demonstrative evidence once the judge has allowed it into evidence before the jury and they can bring in their own experts too...
COPELAND: Look, of course Jeanine and Judge Snyder is correct, but the problem is the bell has been rung. The jury has heard this evidence and they won‘t forget it. It‘s a common prosecutorial tactic. Get it in. Throw it against the wall. Any defenses that come later, any objections that come later, they don‘t really matter...
CROCKER SNYDER: No, wait a minute, Trent...
CROCKER SNYDER: ... Trent, this was...
CROCKER SNYDER: ... this was objected to.
PIRRO: Joe, I‘m going to ask you whether or not you think the judge made a mistake in allowing that in. Isn‘t that fair game? If the prosecution is alleging and even juror number five, who was thrown off the jury, said you know I want to know how a pregnant woman actually fit on a 14-foot aluminum boat, isn‘t that appropriate for the prosecution to try to prove the evidence of how the crime occurred?
TACOPINA: Well, you know, Jeanine, in principle, yes, it‘s appropriate for the prosecution. And look, I‘m a former prosecutor or as I refer to myself, a recovering prosecutor...
TACOPINA: ... Jeanine, but you know I understand that they have a right to prove their case. What I don‘t understand is how they have a right to prove their case by rank speculation and guesswork. This is not a situation where there is even one shred of evidence that this is what happened. That‘s my problem with this. This is why this is deadly and dangerous, and quite frankly, why I think Scott Peterson, if convicted, absolutely has a real live appeal.
TACOPINA: There has been nothing here...
TACOPINA: ... to tie in...
TACOPINA: There‘s no evidence that this happened. This is just a guess.
PIRRO: Joe, in a circumstantial case, the prosecution has the right to put in piece upon piece...
CROCKER SNYDER: Yes, exactly.
PIRRO: ... of their theory of the evidence.
TACOPINA: But that‘s evidence. This is not evidence. This is just a guess as to what could have happened.
PIRRO: Leslie—take it away Leslie.
CROCKER SNYDER: ... it‘s very, very analogous to the doctor case here in New York and of course the law really isn‘t substantially different in California. The prosecution builds a circumstantial case, this is their theory that they are going to prove is a way it can be done. These demonstrations—first of all incidentally, Trent, the defense did object to it in advance, the judge ruled on it in advance, it‘s not a question of ringing the bell. These demonstrations have been upheld. Every kind of demonstrative evidence, Trent, is potentially inflammatory and prejudicial. Every piece of evidence is prejudicial.
PIRRO: And I don‘t think there‘s any question...
COPELAND: The problem with that, Leslie, is that they didn‘t complete the demonstration and in reality...
CROCKER SNYDER: Well, then the defense can do that.
PIRRO: All right everyone I‘m going to cut this off. Last question goes to Chris. What can we expect next week? Is Amber Frey going to be testifying?
FILIPPI: There‘s a lot of thought that she might. Now, there‘s no firm date yet as far as when Amber Frey is going to be called to the stand. This is a prosecution that‘s shown itself to not be afraid to jump from point to point, subject to subject. Expect more testimony about the discovery of the bodies, possibly even an hydrologist who can talk about how the bodies drifted from a specific location near where Scott Peterson was fishing.
PIRRO: OK. Chris, Leslie, Trent, and Joe, thanks for the spirited discussion.
CROCKER SNYDER: Thank you.
PIRRO: Up next, the poster child for corporate greed is indicted, but could he get off?
And Martha Stewart—she is sentenced next week. Could she just get community service? Stay with us.
PIRRO: It‘s not every day a one-time executive who could face 30 years in prison smiles for the camera in cuffs. But former Enron CEO Ken Lay did manage a smile Thursday before he was indicted on 11 counts of making false statements and fraud. Prosecutors say Enron‘s Lay, Jeffrey Skilling and Richard Causey conspired to deceive the investing public, manipulate Enron‘s publicly reported financial results and make false and misleading statements about Enron‘s financial performance. Ken Lay insists he‘s not guilty, but admits it may be tough for him to get a fair trial in the city where Enron is based, Houston, Texas.
(BEGIN VIDEO CLIP)
KENNETH LAY, INDICTED FORMER ENRON CEO: It would be very difficult right now because so many people have made up their mind about Enron and for that matter, I‘ll say so many people have made up their mind probably about me.
(END VIDEO CLIP)
PIRRO: Lay‘s attorney, Michael Ramsey, sees two possible solutions to his client‘s jury problem.
(BEGIN VIDEO CLIP)
MICHAEL RAMSEY, KENNETH LAY‘S ATTORNEY: We could do a little bit of individual questioning of the jurors who are going to serve on the case, under the supervision of the court, or in the alternative, in a real radical situation, move it to another place for trial.
(END VIDEO CLIP)
PIRRO: So can Ken Lay get a fair trial in Houston where so many Enron employees and friends and families lost their savings when the company collapsed?
Let‘s ask our panel - Joel Androphy, a Houston defense attorney, whose specialty is white-collar crime, criminal defense attorney Mercedes Colwin and Robert Heim, a former prosecutor with the Security and Exchange Commission. Now, I‘m going to start with Mercedes.
Mercedes, do you think it was a good idea for Ken Lay to show up and actually have a press conference on the day that he‘s indicted and shown in handcuffs?
MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY: You know, I thought it was a great idea. I mean here he is, he‘s talking to the potential jurors and he‘s saying I have nothing to hide, I didn‘t know that there was financial problems happening in the company, so here I am to present myself. He even thanked the reporters for being there. He said I really appreciate all of you coming here today and I‘m professing my innocence. So I think that it was a brilliant move on his part. It‘s something we‘ve never seen with anyone else. Certainly, folks wanted to hear from Martha Stewart and Kozlowski, none of the folks that have gone before...
COLWIN: ... and they didn‘t do it.
PIRRO: ... you know Mercedes, we‘ll see if he testifies at trial and of course Martha Stewart did her share of pretrial publicity also with some of her interviews. But I‘m going to ask Joel, you know, Joel, what Ken Lay said was ultimately I‘m responsible for this company. This company was my baby. I took it from infancy to its collapse essentially, but I‘m really not criminally liable for what has happened. Do you think a jury is going to buy this? Can they separate the two?
JOEL ANDROPHY, CRIMINAL DEFENSE ATTORNEY: Oh, I think they definitely can. Ken Lay in many ways is a well-respected person in the Houston community. Enron has been demonized, Skilling may be demonized, but Ken Lay hasn‘t been demonized that much. If you noticed at the conference they had, he had several ministers and people in the community that were well respected that are going to speak up for him. He is obviously preparing this case right now and Ken Lay has an excellent shot of winning this case.
PIRRO: Well, I‘ll ask Robert Heim, formerly an SEC prosecutor. Robert, what do you think about the approach that I‘m responsible but I‘m not really criminally responsible?
ROBERT HEIM, FORMER SEC PROSECUTOR: Well, that‘s always a challenge that the prosecutors have to get over, and in their press release today, the prosecutors said that they didn‘t indict Ken Lay for who he was, but for what he did and the prosecutors have laid out a pretty compelling case in the indictment. They still have to prove it, but they‘ve alleged that Ken Lay participated in numerous management meetings, where the financial shenanigans were discussed. He received a memo from an employee discussing the financial shenanigans, and so he has a lot of explaining to do in front of the jury, but the prosecutors are very clear in painting him as really the head of this conspiracy.
PIRRO: But Robert...
PIRRO: ... what took so long for this indictment? I mean these allegations are from 2001. It‘s now 2004. Isn‘t this a case based on a paper trail and you know it really doesn‘t take that long to get and subpoena these—this evidence? What took so long?
HEIM: Well it‘s not so much a paper trail. What the prosecutors have been doing and remember Ken Lay is the 31st person who‘s been indicted in this case. The prosecutors have been working up the chain of command and in these types of financial fraud cases it‘s very important to have cooperating witnesses who can corroborate and place Ken Lay in meetings. If the prosecutors don‘t have cooperating witnesses, this is a very difficult case to make against Ken Lay because his signature is not on a lot of documents.
PIRRO: But Mercedes, at the same time what you‘ve got is Ken Lay through his attorneys saying I want to go right away, I want to separate myself from the other defendants, Skilling and Causey. How does that benefit him?
COLWIN: Oh, I‘m sure he‘s trying to sever the trial. The worst possible scenario would be that Skilling, Causey, and Ken Lay are now in trial together because there‘s going to be guilt by association, so that‘s why he‘s trying to rush it. He‘s trying to get to that first base and say look, we have nothing to hide, here we are, we‘re ready. I mean September -- to have a September trial date is extraordinary in a case that has mountains of documents, none of which as you accurately stated have anything to do with Ken Lay as far as we know.
But another issue I wanted to bring up, with the prosecutor, if they‘re going to rely heavily on Fastow that is going to be a huge error on their part. He‘s got this enormous deal with the prosecutors. He had a 95-count indictment. If they‘re going to rest their case, the case against Ken Lay with Fastow they‘re in huge trouble.
PIRRO: OK. Well I‘m going to move on a bit here.
Judge Cedarbaum has denied Martha Stewart‘s appeal and she says that there is overwhelming independent evidence that supports the verdict and she will be sentenced next week. No chance for a delay in the sentencing. I‘m going to ask the three of you, starting with Joel; she faces 10 to 16 months in prison. What do you think Judge Cedarbaum is going to do?
ANDROPHY: Well, Judge Cedarbaum will probably give her in the range of about a year and I think she should give her bond pending appeal. The last issue she ruled on, and I know this is a little bit off your question, but the last issue she ruled on as to whether or not the perjurous testimony of the government witness did not cause—should have not caused a new trial for Martha Stewart is really off base. You cannot separate a witness, an expert for the government lying from the ultimate verdict in this case.
PIRRO: And you know what‘s interesting Joel...
ANDROPHY: It‘s impossible...
PIRRO: ... what we have here...
PIRRO: ... who is—a judge who has said there is overwhelming evidence, and this is the first time...
PIRRO: ... that we‘ve heard from the trial judge, a little—something to worry about, wouldn‘t you say, Mercedes?
COLWIN: Jeanine, I think what she was doing, those are the buzzwords that judges will use...
UNIDENTIFIED MALE: Yes.
COLWIN: ... in order to make their decision appellate proof because frankly the Second Circuit in any of the court of appeals around the nation are not going to touch a decision where the court, the underlying judge is saying there‘s overwhelming evidence...
COLWIN: ... that the jury decided upon, so that‘s really...
COLWIN: ... I think it was just her way to protect the decision. She doesn‘t want to go through this trial...
PIRRO: What kind of time—Mercedes, what kind of time do you think she‘s facing?
COLWIN: I think Joel is absolutely right. I think it‘s somewhere between 12 and 16 months. And I have to tell you, I think it‘s an outrage that Judge Cedarbaum didn‘t reconsider this and give her a new trial...
PIRRO: OK, Robert, your take, how long do you think the sentence will be?
HEIM: I think she‘ll probably get in the upper range, closer to the 16 months because...
HEIM: ... clearly the judge feels strongly about the case.
PIRRO: OK. All right, we‘re out of time. Joel, Mercedes and Robert...
ANDROPHY: Thank you.
COLWIN: Thanks so much Jeanine.
PIRRO: Up next, an amazing rescue. A woman abducted at gunpoint tracked down by police thanks to a very alert motorist. Don‘t go away.
PIRRO: Up next, your e-mails on the Scott Peterson trial. Why did Amber Frey need to hire a lawyer if she‘s only a witness in the case? Stay with us.
PIRRO: We‘re back with a happy ending for a family in Tennessee. Forty-year-old Betty Hand is back home today after being abducted at gunpoint from the gas station where she works. Police got their big break during a press conference they were holding to talk about her abduction.
NBC‘s Martin Savidge explains.
MARTIN SAVIDGE, NBC NEWS CORRESPONDENT (voice-over): A happy ending for a story with a terrifying beginning. In Tennessee, authorities were holding a roadside news conference to update the search for a local kidnapped victim when they were interrupted by what would be their big break.
UNIDENTIFIED FEMALE: Right down here about a mile (UNINTELLIGIBLE).
Get in. Follow me I‘ll show you where they are.
SAVIDGE: Tuesday night, 40-year-old Betty Hand was abducted at gunpoint from the gas station where she worked. Authorities identified the suspect as 53-year-old Michael Shepherd (ph), a convicted sex offender. FBI agents have been tracking him for three weeks, alleging he was a one-man, three-state crime spree involving rape, abduction and car theft.
UNIDENTIFIED FEMALE: A woman was kidnapped...
SAVIDGE: The local media reported Hand‘s kidnapping. Jackie Manning saw the suspect and victim as she drove with her children.
JACKIE MANNING, WITNESS: I said it‘s them. And they said no, mom‘s it‘s not. And I said I‘m 100 percent sure it‘s them, buckle up, we‘ve got to get her help.
UNIDENTIFIED FEMALE: She‘s (UNINTELLIGIBLE)...
SAVIDGE: She was the sharp-eyed motorist who wasn‘t afraid to butt in.
UNIDENTIFIED FEMALE: Where‘s the police? I want to get the police before they get lost again.
SAVIDGE: Minutes later, Shepherd (ph) was in custody and Betty Hand‘s long ordeal was finally at an end. A lucky break or an answered prayer? Her family would probably say both.
Martin Savidge, NBC News, Atlanta.
PIRRO: Now it‘s time for “Your Rebuttal”. Plenty of interest in the Scott Peterson trial and one particular witness who was on the stand this week. The prosecution used Kim Fulbright to simulate how Scott may have managed to get Laci‘s body in and out of his small fishing boat when she was pregnant. Kim‘s body type was similar to Laci Peterson‘s when they both were pregnant.
Leah writes—quote—“I understand a woman demonstrated in photos how a pregnant Laci Peterson could have fit into Scott‘s boat. Unfortunately, the woman entered the stationary boat under her own power. She wasn‘t carried to the boat, allegedly wrapped in a tarp with a flotilla of cement anchors in tow. Additionally, she didn‘t have to deal with a little problem that would have been present with Scott repeatedly carrying and positioning a dead Laci Peterson, rigor mortis. Unfortunately, for the D.A. there was zero forensic evidence of Laci ever being in the toolbox or truck bed and the scent dogs did not alert to either area.”
Now my response is that the demonstration was done to show that Laci‘s body type could fit into the space in question. This is a circumstantial case and although there was no forensic evidence of Laci being in the toolbox, there was a strand of Laci‘s hair on a pair of pliers that was found in Scott‘s boat. It‘s not a huge leap to imagine that these pliers were at one point in the toolbox.
Nancy Beckmann from St. Paul, Minnesota gets it. Quote—“I see nothing wrong with the prosecution trying to show how Scott could have transported Laci‘s body from his home and to the boat. After all the prosecution has the burden of proof on their shoulders.”
Good point Nancy. When validly and carefully used, there is no class of evidence so convincing and compelling and satisfactory to a jury as demonstrative evidence. This helps in the ascertainment of the truth and the demonstration that was admitted was admitted to explain the prosecution‘s theory. Make no mistake; if Mark Geragos could prove Laci couldn‘t fit in the boat, he‘d be the first to offer a demonstration.
And finally, Eberhard Kuehl with a question about Scott Peterson‘s girlfriend Amber Frey. Quote—“Why did Amber Frey hire a very highly qualified lawyer? Amber‘s only a witness. If what she will testify to is the truth and her personal background is without any hidden skeletons, why does she need a lawyer?”
Well, there are a couple of reasons. Police at first were suspicious of Amber Frey‘s involvement before they eventually ruled her out and defendants usually point to anyone other than themselves when blamed for a crime. The reason she might have picked a high profile attorney like Gloria Allred is because when someone is looking for a lawyer, they call someone they‘ve heard of and Gloria Allred has a reputation as a fighter.
Thanks for your e-mails. Keep them coming—firstname.lastname@example.org.
Dan goes through them and reads them on the air.
Coming up next, “HARDBALL” with Chris Matthews. Dan is back on Monday. I‘m Jeanine Pirro. Have a great weekend.
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