Lack of Duct Tape May Unseal Peterson Prosecution

This is a partial transcript from On the Record with Greta Van Susteren, June 30, 2004 that has been edited for clarity.

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GRETA VAN SUSTEREN, HOST:  We're back with day 18 of the Scott Peterson (search) murder trial. Let's bring back in our panel. And let me go out to Jim Hammer. Jim, what is it that the DA faces Tuesday morning when he goes back to court?

JIM HAMMER, FORMER ASST. SAN FRANCISCO DA: Well, Greta, there's a tempest brewing in the courthouse. Before court started today, all the attorneys were huddled together with the judge in the chambers. That's happened a lot during this trial over discovery violations and whatnot.

And the word at the Hall of Justice is that this tip that Brocchini blurted out yesterday — that is, that the 1995 conversation with Scott Peterson, saying he'd wrap a person in duct tape, put a bag over their head and drop them in the sea — that Brocchini added to that tip, added the duct tape, that when you listen to the actual tapes made of that tip and the transcript, "duct tape" is nowhere in there.

And last night, you and I, we talked about how that's the most important part of that tape. It's the explosive part of that tip. If it's not there and Brocchini added it on, at best, he's sloppy and making stuff up. At worst, he's lying. And the worst part of it is the DA didn't correct it, Greta. He stood there sort of smug, happy with this tip coming in, and did nothing. The DA himself might be in trouble now.

JEANINE PIRRO, WESTCHESTER COUNTY, NEW YORK, DA: But Greta...

VAN SUSTEREN: And — and of course — go ahead, Laura.

PIRRO: No, it's Jeanine.

VAN SUSTEREN: Or Jeanine.

PIRRO: The question that I have is that, why didn't Geragos object to this testimony, Jim?

HAMMER: Because...

VAN SUSTEREN: Oh, because — I'll tell you exactly — I'll tell you exactly what happened.

HAMMER: Go ahead, Greta.

VAN SUSTEREN: I'll tell you exactly what happened, is because he went back and he looked at the underlying tape that gave rise to Brocchini's testimony.

HAMMER: Exactly.

VAN SUSTEREN: What I understand happened is that he went back in — because Brocchini — Brocchini interviewed this — this person, according to Brocchini, on tape...

PIRRO: Right, and says...

VAN SUSTEREN: ... then Brocchini...

PIRRO: ... says in court it was on tape.

VAN SUSTEREN: Yes. Right. On tape. Under oath, Brocchini says that. He goes into court, and this is what he says under oath yesterday. He said, "He said that he would tie a bag around the neck, the neck with duct tape, puts weights on the hands, throws it in the sea." And it goes on.

But the duct tape, as Jim and I talked about last night, it was crucial. Then he came — apparently, what he did is he added the duct tape when he testified under oath. Now everybody knows it. The judge knows it. Mark Geragos knows it. And now the DA has to deal with it, Bernie.

BERNIE GRIMM, CRIMINAL DEFENSE ATTORNEY: Let me — let me...

HAMMER: But the real question, Greta, is how...

GRIMM: Let me...

HAMMER: How did the DA not clean that up?

PIRRO: Exactly.

HAMMER: He is not listening or doesn't know his evidence, but to let that go in a death penalty case...

VAN SUSTEREN: And — and...

HAMMER: ... is inexcusable.

VAN SUSTEREN: And the problem is, as ... One more thing, Bernie. I'm sorry! I cut you...

GRIMM: No, no, no.

VAN SUSTEREN: But ...

GRIMM: I'm just some other guy, you know, right, Laura?

(LAUGHTER)

PIRRO: You're not one of the bastards Laura said at the break.

VAN SUSTEREN: But see — but here's the problem that I think that Brocchini, and more importantly, the DA has, is that first Brocchini sets up — I use that word lightly — the DA on the meringue. That wasn't — you know, that was a mistake for the DA to live with. Then all of a sudden, Brocchini takes out of his report the fact that Laci was seen December 23 at the warehouse with the boat. Now Brocchini does this to the DA. Bernie?

GRIMM: Game, set, match point, Navratilova. It could be over on Monday. And these are not light things.

PIRRO: It's not over!

GRIMM: And I'm going to pick up on something that my brother, M.C. Hammer, said out in California.

HAMMER: Yo!

GRIMM: This is very critical because, as Jim knows, a prosecutor has an affirmative duty to correct something right there when it happens. When Brocchini says duct tape, he's got to approach the bench and say, Judge, this guy is lying.

VAN SUSTEREN: What ... prosecutor's just negligent, incompetent, and never bothered to do the research between one, two, three things now?

GRIMM: Exactly point. But we read the — I read the redirect examination today, where the prosecutor came back and redirect, and brought it out again a second time, and asked him to repeat the duct tape again, and then said, Is this a real person?

And Brocchini says, yes, I interviewed him, he said, so he could come in and be subpoenaed, suggesting to the jury this is a real person. If Geragos wants to bring him in...

VAN SUSTEREN: Jeanine, I'll tell you what I would do if I were the defense attorney. I would move for a mistrial...

PIRRO: Right.

VAN SUSTEREN: ... because this is the third time this has happened. And this is — this is something the DA should have — he should have known, one, two, three times, that his witness may be committing perjury, messing around with evidence. You can't claim negligence every single time, Jeanine.

PIRRO: Well, you know what? On the meringue issue, No. 1, there were eight references to it on Martha Stewart the day before. On the excision of that one piece of the police report, maybe another officer wrote the police report. But you know what? The DA should have been on top of his game.

And you know what? I'm disappointed here because what you have is a DA pretty much corroborating it by saying there's a transcript, there's a tape recording. If the DA had done his homework, he would have known.

If what we're saying is true — and by the way, I haven't seen it in the transcript yet that there is no reference to duct tape by this witness — then you know what? Shame on the DA for not being in a position to correct a witness who may be misleading a jury.

VAN SUSTEREN: And if I were the judge, I would — you know, or Mark Geragos, you know, right now, and the DA, I'd be extremely upset tonight as they go into Tuesday's date. Jeanine, Laura, gentlemen, thank you very much.

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