THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
LARRY KING, HOST: Tonight, closing arguments start tomorrow in the Danielle van Dam murder trial. Will the 7-year-old's time of death prove the guilt or innocence of her neighbor, David Westerfield?
Plus, prosecutors are now seeking the death penalty against Alejandro Avila for the murder of the 5-year-old Samantha Runnion. Our experts debate both cases.
Joining us, Court TV anchor and former prosecutor Nancy Grace. Famed defense attorney, Mark Geragos. Marc Klaas, the father of young kidnap and murder victim, Polly Klaas. Forensic expert and author of "Dead Reckoning: The New Science of Catching Killers," Dr. Michael Baden, and forensic psychologist, Veronica Thomas.
They're all next on LARRY KING LIVE.
OK. In the Avila matter, announced today by District Attorney Tony Rackauckas, who was with us last week, they are going for the death penalty. Right decision, Nancy?
NANCY GRACE, COURT TV: Yes. I think that it was largely expected. A lot of nay-sayers will say it's a political decision. I disagree. Of course, the defense will argue that we don't know the evidence yet, but based on the indictment alone, which outlines sexual molestations, not one but two, both vaginally and anally, I think that those will qualify as other crimes and special circumstances.
KING: So in other words, Nancy, you're saying that fits, whether it was Avila or someone else?
GRACE: Yes, I do.
KING: What do you think, Mark Geragos?
MARK GERAGOS, DEFENSE ATTORNEY: Well, I certainly don't think it was a surprise. I mean, whether you believe in the death penalty or not, or whether you support the death penalty or not, if there was ever a case and the factual underpinnings of this case that qualify for seeking the death penalty, this is probably it.
What they have filed is a criminal complaint, and the criminal complaint alleges these special circumstances in California that you need or that are necessary for seeking the death penalty. When we were on the set a couple of weeks ago with Tony Rackauckas and the sheriff, as you remember, Larry, we said during the break, I was teasing him that it was going to be one of the shortest panel discussions in his office of all time. I can't imagine that they, in Orange County, with this crime, that they wouldn't have sought the death penalty.
KING: Do you agree, Marc Klaas, whether it's Avila or someone else, and Avila is accused and the deck looks stacked against him, but we don't know whether he did it or not until a jury decides, would you say that this act should carry the death penalty no matter who did it?
MARC KLAAS, KLAAS KIDS FOUNDATION: Oh, absolutely, Larry. You know, most people would agree that killing a little girl or a child is probably one of the worst crimes that an individual can commit against another individual. And that being the case, that individual who has been charged has to face the ultimate penalty in whatever state that happens to be. In California, it's the death penalty. In other states, it's life without parole.
To do anything less would be somehow to dismiss the value of Samantha's life, I believe.
KING: Dr. Baden, is forensics going to be the key in this case, as you understand it?
MICHAEL BADEN, FORENSIC PSYCHOLOGIST: Well, I think that there is an awful lot of evidence, forensic evidence, as I understand, probably DNA evidence, hairs and fibers. I think the whole area of forensic psychiatry will be involved here as to the mental status of this fellow, and that has to also be worked out. There will be more on his mental state than there will be on the actual scientific, harder scientific evidence, which appears to be pretty solid.
KING: Are you thinking then, Dr. Baden, that this could be a plea of him saying he was somewhere else, could wind up as a plea of insanity?
BADEN: I think that's certainly one possibility, absolutely.
KING: All right. Dr. Thomas, you're a forensic psychologist. You won't be called in on this case, right?
VICTORIA THOMAS, FORENSIC PSYCHOLOGIST: Probably not.
KING: Because you know one of the principals involved?
THOMAS: Well, I'm here, and I think that...
KING: Or if you discussed it in the media, they may not call you.
THOMAS: Certainly. Certainly.
KING: All right. Is Dr. Baden right? THOMAS: Oh, very much so. I think that a case such as this is so very important for social values and the meaning that this kind of crime has for children and parents, that we all want to know what this person was thinking, what made this person develop into a person that would commit certain kinds of behaviors that are unspeakable.
KING: So he will be, whoever the culprit is, will be studied, right?
THOMAS: Very much so.
KING: I'm saying that, Nancy, about whoever, because a lot of people are talking today in many circles that are we, we, the all news networks and others, doing an injustice here. Are we convicting a man before the trial? In fact, are we making it difficult -- you have to be someone who has no opinion on this case to be on that jury. Are you going to find someone?
GRACE: Well, you have to be someone that is not biased, that can keep an open mind. You'd have to...
KING: That eliminates this whole panel, right?
GRACE: Well, I would be willing to hear the evidence. If I find out over the course of...
KING: Nancy, do you believe you could sit in this case?
GRACE: Larry, you know what, I do not want to see an innocent person ever go behind bars. I would keep an open mind. I'm basing my opinion on what I know so far, and what I know so far is largely from Sheriff Carona, who I tend to believe from what I've seen of him.
KING: But what you know so far is not evidence, correct? Evidence is what happens in court.
GRACE: Obviously.
KING: What I'm saying is, are we doing wrong, unlike the British system where this would not be allowed?
GRACE: No, we are not doing wrong. This is just, in my mind, pursuant to the U.S. Constitution that allows an open court. Many, many years ago that meant the community could go sit in the courtroom. Now that means we can watch television and find out facts as they develop.
But, Larry, one other thing, as I was discussing with you a few weeks ago, I do see an insanity plea on the verge, because where else can he go? And it disturbs me to hear experts say, what was he thinking? Do we care what he was thinking when he killed this little girl? He was thinking about himself.
KING: If you don't care, how are you going to know about investigating other people who do similar things? If you don't care what people think? GRACE: Like this guy, like we're going learn something from a guy who obviously, according to police, if what they say is true, lied to them about his whereabouts, is lying to save his own skin, lied in his first trial -- what is he going to teach us, Larry?
KING: Mark Geragos, can he get, based on media coverage alone, a fair trial?
GERAGOS: You know, the problem with this case is that it's the most horrific of crimes. You have people come into that courtroom who are going to be predisposed to believe that sheriff. I mean, the sheriff did a spectacular job of kind of galvanizing public opinion. And he should be applauded for that.
And when he comes out and says he's 100 percent certain, most people want to believe that, and they come into that courtroom wanting to believe that. And what ends up happening is, is if you have any kind of evidence whatsoever, if he has got that poor little girl's DNA under his fingernails, if he has, as I believe they do, the cell phone records that show that he was not over at the Ontario Mills mall but was, in fact, somewhere else near where the body was found, there isn't -- they can talk all they want about this, that or the other thing, nobody is ever going to acquit that guy, ever.
KING: By the way, I love having you and Nancy together, because we can have fisticuffs here. (UNINTELLIGIBLE)
GERAGOS: Well, they have got us into the same studio, but it's kind of like a steel cage match here.
(CROSSTALK)
KING: Before we got to Marc Klaas, the question, Mark Geragos, is not all that. The question is, can he get a fair trial? Can we find 12 people with no bias toward Avila?
GERAGOS: Well, let me break that down if I can in just two categories, if you will. I have cases, I have cases pending right now where police have come out and police have made announcements and their announcements have later proved to be untrue.
KING: Front page cases?
GERAGOS: Front pages cases, where what the police have announced has just been categorically untrue. I resent that as a defense lawyer; my clients resent it. I don't think that it's fair to have the police out there litigating this case, or any case, in advance.
GRACE: Well, you're litigating the other side, Mark.
GERAGOS: At the same time -- no, no, the defense lawyer can't go out ethically and litigate the other side.
GRACE: They do it all of the time. Look at the Blake case. How many times have I heard...
GERAGOS: Ethically, they're not supposed to.
GRACE: ... Harland Braun say my client is innocent, and attack the victim?
GERAGOS: Remember, Harland also has the responsibility as a defense lawyer to come back out and respond. You can't just let the police convict your client.
KING: All right. I'm going to take a break and come back and I'll repeat the same question. Can he get a fair trial?
We'll be right back.
(BEGIN VIDEO CLIP)
TONY RACKAUCKAS, ORANGE COUNTY DISTRICT ATTORNEY: Today, as Orange County district attorney, on behalf of the people of the state of California, I announce my decision to seek the death penalty as to Mr. Alejandro Avila, for kidnapping, forcibly committing lewd acts upon and murdering Samantha Runnion.
(END VIDEO CLIP)
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
TONY RACKAUCKAS, ORANGE CO. DISTRICT ATTORNEY: We took into account that Samantha was a stranger to her assailant. As an innocent child, she was extremely vulnerable. Mr. Avila is charged with molesting Samantha. He's charged with forcibly snatching Samantha from a location, a courtyard, just steps away from her home and brutally molesting her and then killing her.
(END VIDEO CLIP)
KING: Marc Klaas, I know you're not an attorney, but nevertheless, I'm just asking, I thought that evidence is something that happens in court, not on CNN. At CNN, we have prosecutors just announcing a thing, we have defense attorneys try a case. But the only trier of the fact is the jury and the judge and the court. Are me making it impossible to get him a fair trial?
KLAAS: You know, I don't think so at all, Larry. You can look back in our recent history from Manson to McVeigh to Simpson to Richard Allen Davis, to the current trial in the van Dam case. And all of these have been played out on the media long before they ever got to the jury. People knew exactly what was going on in all of these cases.
Yet, in three-quarters of the cases that have been adjudicated, the jury came back with exactly the right verdict. So, you know, we have to believe that the people, as Nancy said, will go in there, understanding their duty, taking their responsibility very seriously, sitting down and basing their decision based on the evidence. Of course, there will be people going in with an agenda, but it's up to the prosecutor and the defense attorneys to weed those individuals out.
KING: Dr. Baden, would you like the British system better, which would not allow to happen what we're doing right now? You cannot discuss a trial or write print about a trial until the trial starts.
BADEN: I think in general, yes, Larry, just for the very reasons that have been raised. When the passions of the community and the district attorney and the prosecutor are so raised in a case, one can get a false verdict.
We had another case outside Chicago some years ago. A little girl, Nekariko (ph), was forcibly abducted from her home, brought to the woods, raped and murdered. And two people were falsely convicted, were on death row for something like 13, 14 years. And it turned out because of the community passions that police, prosecutors and forensic scientists got caught up in, and gave false results. It turned out clearly they were innocent, they were released. DNA proved somebody else was the perpetrator who has never been arrested for it, as I understand. And I think that there is a real danger in these most heinous of cases for mistakes to be made. And we have to calm our passions, as horrible as this crime is.
KING: We have the famed Pittsley (ph) case in Florida. They were on death row for many years for a crime they did not commit based on overzealousness. Do you fear it, Dr. Thomas?
THOMAS: Well, certainly. As a psychologist, we want to stay focused on those aspects of the human behavior that explain why somebody is acting the way they do.
KING: Nancy says that don't count.
THOMAS: Well, I understand. I certainly can appreciate that and that would be the role of the law enforcement and the attorneys and the district attorneys. But as the psychologist, the psychiatrists and the other forensic experts involved in these situations, we want to stay as close to the science as we can.
KING: In other words, Dr. Baden can't look at the evidence and want it to be someone? He's just got to judge the evidence as he pieces it together. You have to interview people, open-minded, right?
THOMAS: Very much so. In order to help the trier of fact, we really do have to present the data as objectively as we can gather it with as little emotion and other things involved.
KING: And, Nancy, you see no danger in the discussion at all?
GRACE: Well, I think that there is always a danger. I think there is a danger if someone go to the local 7-11 and hears the case being discussed and then sits on the jury. And that is where the role of the prosecutor and the defense and the judge become so vital. You speak to every possible juror about what knowledge they have of the case, whether they can have an open mind.
And back to what I said earlier, I don't think that psychology has no place. But in my mind, the place it has in the courtroom for me would be to prove a motive, a motive for a crime. I'm not saying that it's worthless or has no merit. I think it has great merit. But what I want to find out is who did this thing? Who is the correct perpetrator and what will their punishment be?
KING: By the way, what would the motive be, Nancy? What, in your wildest imagination, would the motive be in this case?
GRACE: In my mind, if what I have read and what I have heard on air, as you've pointed out, is correct, he is simply a sexual predator.
KING: So, there's no motive?
GRACE: It's his nature. His nature drove him to do this what from what I can see, and this is not his first victim.
KING: So, there's no motive?
GRACE: Well, in my mind, being a sexual predator, following your own urges, would be a motive. But as you mean like a thought-out, premeditated motive...
KING: Yes, that's what I mean.
GRACE: ... like for insurance money or something, no, no motive in that sense.
KING: Mark Geragos, as a defense attorney, do you like the British system?
GERAGOS: Yes, I think it makes more sense. I mean, in a lot of ways, if you have a case where it depends on who the defendant is, to some degree, if it's a celebrity defendant versus a defendant who is despised, the public comes or the jurors come to that trial with certain expectations. There may be pressures that come from whatever constituency that they believe that they have to speak for.
And it just doesn't -- I like the British system better in a couple of ways. I mean, that, and I also like the British system in terms of having the defense lawyer and the prosecutor being interchangeable. I think those are a couple of things that the American system you would probably see a little less ideology or ideologues if that happens.
KING: Anyone watching this show saw the tragedy of the mother and her anger at the jury that exonerated Mr. Avila in the first trial. That may never come up in this trial, is that correct, Mr. Geragos?
GERAGOS: Yes. Yes. And...
KING: OK. Then why do we know it?
GERAGOS: But the problem is is that when you have somebody there, and how could you not feel -- I mean, there is -- you're not human if you don't take a look at Mrs. Runnion and feel...
KING: Of course.
GERAGOS: ... the utmost empathy for her. And when she blames the jurors and she blames them squarely for, you know, what she considers to be the tragedy here, which it truly is, you can't, unless you're an alien, you can't help but feel for her and to share that.
So, that's what -- that's part of the problem. You don't want jurors to come in there and figure, I don't want to be one of the ones who comes out of this courtroom after having acquitted somebody and be blamed for it, so to speak, or to have to live with that on my conscience. That's a horrible burden to put on somebody.
KING: He also -- Marc Klaas...
GRACE: I disagree. I want the jury to live with their conscience, to do the right thing, be it an acquittal or a guilty verdict.
GERAGOS: Yes, except you want them to do the right thing based on the evidence, not because of the some other emotion that seeps into it.
GRACE: I agree with that.
GERAGOS: I want -- you know, and you argue the same thing, I'm sure, Nancy, when you were prosecuting. You want jurors who are going to able to wake up, not just the following day, but a year from then and believe they did the right thing, but did the right thing on evidence in a courtroom.
GRACE: I agree.
KING: We'll take a break and discuss the van Dam matter, and we'll get more thoughts on that from Baden and Thomas as well. And we'll be including your phone calls. You're watching LARRY KING LIVE.
Tomorrow night, Diamond Joe Esposito. You don't know the name maybe, but he was Elvis Presley's best friend, was with him when he died. Diamond Jo Esposito tomorrow night. Don't go away.
(COMMERCIAL BREAK)
KING: We're now going to concentrate on the van Dam case, which is winding up, and we'll go down to the San Diego courthouse. Steve Fiorina is standing by, a reporter with KGTV, has been covering the trial of David Westerfield for the murder of Danielle van Dam. What's the latest update, Steve? When is this ending?
STEVE FIORINA, KGTV CORRESPONDENT: We're going to closing arguments tomorrow morning. The judge this morning said we're ready to rock 'n' roll. He's ready to go.
It's been two months today since Brenda van Dam took the stand, and two months tomorrow since Damon van Dam. Over two months of testimony. We're going to hear from two attorneys, very confident, very focused, and at the top of their game. I was very impressed with both the lead attorneys, as they did their both direct examinations and cross-examinations. Tomorrow they get to put it all together for the jury.
Now, one of the things that I was thinking they have got all of the circumstantial evidence of the prosecution -- you've got hair, blood, fingerprints and fiber evidence. The defense trying to prove that the bug evidence indicates that David Westerfield could not have dropped off the body.
But one of the things that was absolutely the most troubling to the jury as I sat and watched was the pornography. This is just a small part of the case, but it was what the prosecutor says goes to the cause, the motive for the crime. One of the jurors was extremely upset when she watched a video of a forceable rape. There was never any absolute determination whether or not there is child pornography, the jury has to decide this, but they have pictures of underaged girls, we have pictures of 8-, or 9-, or 10-year-old girls. There are sex acts involving what may be young girls, but also what may be 18- year-olds dressed up to look like young girls. But that, which is just a small part of the case, was the most emotionally troubling to the jury, and I wonder if that's going to play a part.
KING: Marc Klaas, as you have followed this, have you gone kind of back and forth -- has the Westerfield defense caused you to maybe step back?
KLAAS: Oh, this whole focus on vilifying Damon and Brenda van Dam, basically taking these people who lost their daughter, putting them on the ground and kicking them in the head until they can't take it anymore, by focusing on their lifestyle, the supposed indiscretions that they've been involved in, the kinds of things that were dismissed by the prosecutors and by the police very early on.
You know, it seemed like -- it almost seems like bottom feeding. There are a couple of radio talk show hosts, and these defense attorneys who have been unrelenting in their attacks on these people. I just hope it can finally stop, they'll finally deal with this guy and the van Dams will be able to move on with their lives.
KING: Dr. Baden, what's your read on all this big theory and time of death theory?
BADEN: My read is that DNA trumps bugs. That bugs are very site-specific. They grow differently and they mature differently in San Diego than Hawaii, than in New York. The weather conditions are very variable, and when there is a disagreement between DNA and bugs, you've got to rely on the DNA.
Just as bite mark evidence is now being severely challenged and hair matches. Lots of people in jail because hairs matched, whatever that means, that DNA has proven was wrong. So we have got to be careful with the forensic sciences, we can make mistakes, and I think in this situation I would rely more on the DNA evidence. KING: Is it true, Dr. Baden, that you can have something of that girl's found in his apartment but it could have been there a year ago? DNA can't give you the time?
BADEN: That's right, but if it's her blood or a bloody fingerprint, it tells you that somehow she bled there. If she just has a regular fingerprint, an ordinary fingerprint is there or some DNA from sweat, we don't know the time, absolutely right. We can't tell a week from a year.
KING: What do you do, Dr. Thomas, as a juror when experts conflict?
THOMAS: That must be very challenging. And that happens all the time.
KING: They'll still be experts on both sides. There will be probably a forensic psychologist who will say that Mr. Westerfield couldn't have done this.
THOMAS: Certainly, that's possible.
KING: So what do I do? I'm a juror, he or she is a forensic psychologist, well-schooled, got all of the diplomas, says he couldn't have done it.
THOMAS: Yes, and certainly that happens all the time where the experts are pitted up against one another. And the issue really comes down to what science can I provide that's going to help the juror understand the facts?
KING: Does someone like a Westerfield boggle the mind of a forensic psychologist?
THOMAS: Oh, not at all.
KING: No?
THOMAS: But I find it very interesting, and I think the issue is more to this is behavior that's common in what we would call a sexual predator, and these are people that arrange their whole lifestyle around finding appropriate victims.
KING: But they don't kill, usually, right?
THOMAS: No, they certainly don't. It's very unusual, and we certainly don't want to blame parents, because they may or may not have engaged in a behavior because that's really not much got to do with the predator.
KING: Nancy, has the defense caused you to rethink?
GRACE: Well, I've listened very carefully to what they say, and I'll give you this much, Larry, there have been no less than six or seven varied opinions, expert opinions, regarding the entomology issue here. Not necessarily the date of death, the time of death, but when the body was disposed of.
Now with all of these conflicting expert opinions, many on the same side, are conflicting with each other, it makes me fall back like Dr. Baden says, to the DNA and back to the hair. I agree with him totally; the hair can be very misleading. A hair match, so to speak, but in this case, there is not only a hair match, but there is mitochondrial DNA, a different type of DNA taken from the hair follicle that is much more reliable, linking back up to Danielle's hair in his RV and her blood on his jacket.
KING: Mark Geragos, as a defense attorney, how good a job has Mr. Westerfield's defense team done?
GERAGOS: They've done probably as much as they could in this particular situation. The problem that they face is that the prosecutor is going to get up and in his closing argument, he's going to, I would imagine, dissect this, all of the defense, and he's going to say you're going to have to believe that there is monumental coincidence after monumental coincidence after monumental coincidence, and at a certain point that that's just not plausible, and that's -- and it's going to come down to jurors making a decision as to what beyond a reasonable doubt is.
I mean, when you have a fingerprint or a palm print there, when you have blood evidence there, when you have him disappearing at an appropriate time, a time that makes sense, when you have that bleach evidence, when you combine all of those things -- and they're going to go through, the prosecution is going to just surgically, if you will, dissect the defense, and...
GRACE: You left out that he steam-cleaned his RV.
GERAGOS: Well, that's part of that bleach evidence.
GRACE: The defense has done a great job, I think.
GERAGOS: Right. And you take all of that stuff together, and it's just going to tell the jurors that it's just too much of a coincidence. But they've done as much as they could hope for with this case.
KING: The judge has told the jurors to exclude any thinking about Elizabeth Smart or Samantha Runnion or other cases, just look at this one. Can they do that, you think, Mark Geragos?
GERAGOS: It's like saying, ignore that elephant that's right here in the room with you. I mean, no, it's impossible to do. I think that the sequestration wasn't going to solve anything at this point, that horse is already out of the barn. Although I did notice today, they were showing me before I got on here that the defense was personally calling out or choosing of Nancy Grace, I think, for some of her comments, and that they thought that maybe...
KING: Really?
GERAGOS: Yes, apparently today it was reported that the defense attorney was complaining bitterly about Nancy and her commentary, so...
KING: Let me get a break, and...
(CROSSTALK)
KING: We'll get a break -- Nancy, you're everywhere.
We'll get a break and we'll come back. We'll include your phone calls.
Steve Fiorina, who's on the scene will remain with us as well, and we'll go to calls right after these words. Don't go away.
(BEGIN VIDEO CLIP)
BRENDA VAN DAM, VICTIM'S MOTHER: I started looking around the house and looking under the beds and looking in the closets and Damon came upstairs and he started looking with me, and we were yelling out her name. And then went downstairs. Damon went out front and I went out back, and we couldn't find her.
(END VIDEO CLIP)
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
UNIDENTIFIED LAWYER: Do you know if your father had any pornography in the house?
DAVID WESTERFIELD, DEFENDANT'S SON: Yes.
UNIDENTIFIED LAWYER: How do you know?
WESTERFIELD: I found some on his computer and I some on disks in his office.
UNIDENTIFIED LAWYER: The stuff that you found on his computer, which computer was that, sir?
WESTERFIELD: That was the computer with Internet access.
UNIDENTIFIED LAWYER: The one in his office?
WESTERFIELD: Yes.
UNIDENTIFIED LAWYER: How was it that you found it on the computer?
WESTERFIELD: In the operating system that he uses there's button in the lower left hand corner called Start button which contains all the shortcuts to your programs. And on one occasion there was a link there which was to a pornography site on the Internet.
(END VIDEO CLIP)
KING: That was Mr. Westerfield's son with damaging information about him.
Marc Klaas, because he had pornography doesn't mean he's a killer, does it?
KLAAS: No, of course not. A lot of people look at pornography.
But the fact that he had child pornography is certainly an indication that he's not above breaking the law, and that he is taking a very peculiar interest in young girls for very prurient reasons. And that's very much a no-no.
And I think it's also instructive that he tried to sell his own son down the river on this case, as well as van Dam little girl. So this guy is just junk, and the sooner we're done with him the better.
KING: Steve are they taking bets down in San Diego? Does anyone think that Westerfield has a shot here?
FIORINA: Most of the people that I've talked to indicate they think it's going to be either a conviction or a hung jury. You know, you need just one of 12 to hang it all up.
The -- no, I've not heard anyone -- I've heard of the radio talk show people saying, well, I don't think he did it, or there was a lot of talk a few weeks ago that he's covering for his son, and then his son came up with an alibi that was rock solid. A couple of other people testified where he was that night. So he's out of it. The defense possibly trying to suggest it was his pornography, and then that was put to rest by the prosecution calling him.
The defense really had no choice there. They did not even question the son when he was on the stand.
KING: Dr. Baden, are these cases particularly tougher?
BADEN: Yes, they are tough. They are tough in finding the right forensic evidence, protecting the scene. They're tough when you can't find the cause of death.
I mean, we have situations that more and more prosecutors are willing to go forth when the cause of death is undetermined, even though the circumstances look like homicide, even when bodies sometimes aren't found.
And I think sometimes one can proceed properly even without a good cause of death.
KING: And you can, in fact, get rid of a body and be convicted, right, Dr. Baden?
BADEN: Yes. Yes. The Capano case out in Delaware where the brother seeing the body was sufficient to determine the cause of death.
KING: Dr. Thomas, we've been asking this question almost every night: Do we know why a predator is a predator? THOMAS: Well, we know that there are a variety of factors that are related to what result in the ultimate behaviors. We know that there is disturbed psychological development. It's often very related to child abuse at times. We're talking about people who have a skewed, an abnormal understanding of themselves and their expectations on others for relationships.
KING: What attracts them about a 5-year-old girl?
THOMAS: Well, there are a couple of things that we have to take into consideration. Number one is they probably learned at some point in their life, through their own immaturity, that that age group of child is more consistent with their own emotional development. That's certainly one hypothesis.
KING: Do you know why they kill?
THOMAS: Well, it's very rare that they do. And I think we do have to differentiate that the persons who do kill are very uncommon statistically. So I think each crime, in that respect, is an individual map of that person.
KING: Nancy Grace, in the Judeo-Christian ethic we live with, can you forgive them?
GRACE: Well Larry, sure; of course they can be forgiven. But that doesn't mean that they will escape punishment. They can be forgiven...
KING: No, I mean forgiven. You know, where you can have compassion for someone who does -- it's the hardest thing in the world, to have compassion for someone who kills a kid, isn't it?
KLAAS: No.
GRACE: Well, of course I think people can be forgiven. But our justice system is not set up to dispense forgiveness. You can go to the local priest for that. We are seeking a verdict that will speak the truth.
And one thing I wanted thing I wanted to bring up to you, Larry, is this type of defense from Steve Feldman -- he's an excellent, a competent defense attorney -- is not a surprise. He used the very same defense 20 years ago in what should have been an open-and-shut murder case in a border town in California. He brought in multiple experts to challenge the time of death and got an acquittal.
So this is his history; this is his track record, and it may work in this case.
KING: Marc Klaas, you were saying, no, it's impossible, of course, in your case to forgive, isn't it Marc?
KLAAS: Well, you know, I think it's very presumptuous for any of us to suggest that we can forgive somebody for killing another. It's the unforgivable sin. The only person that would be in a position to do that would be the murder victim, and they're dead.
We can certainly forgive for any transgressions, crimes or sins committed against us, but to go there and to suggest that we could forgive for crimes, sins or transgressions committed against others is preposterous and presumptuous.
KING: Fairfield, Connecticut, hello.
CALLER: Hi Larry. This is a question for Nancy and for Mark.
We're not hearing a whole lot of discussion on the forensic evidence. How solid that is that? Are their holes in this? Is this why we're not hearing a lot about it?
KING: Mark Geragos first, go ahead.
GERAGOS: I was just going say, there's so much disagreement, and there's so many problems with what they're trying to do here in terms of pinning down the exact area.
Part of the reason is I think that the media does the same thing that I think I find, at least, the jurors do at a certain point, is you tend to cancel it out. And you say, if one is saying A and other is saying B, at a certain point I'm going to look somewhere else for something that gives me a little bit of importance in this case.
(CROSSTALK)
KING: Let me get a break -- I'll come back with Nancy and more calls as well.
This is LARRY KING LIVE, don't go away.
(BEGIN VIDEO CLIP)
UNIDENTIFIED LAWYER: What caused your attention to be drawn to...
PATRICIA LEPAGE, AT BAR THE NIGHT DANIELLE DISAPPEARED: Her behavior.
UNIDENTIFIED LAWYER: What about her behavior?
LEPAGE: Well, she's a flamboyant person. I do not wish to defame Ms. van Dam. I don't know her age; maybe this is how younger people act.
UNIDENTIFIED LAWYER: How was she acting?
LEPAGE: Like I said, flamboyant.
UNIDENTIFIED LAWYER: What behavior do you mean to communicate by use of the word flamboyant?
LEPAGE: Frisky.
UNIDENTIFIED LAWYER: Frisky.
(END VIDEO CLIP)
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
UNIDENTIFIED LAWYER: When you were with your friend Ryan (ph), what did Brenda say to you with your friend Ryan?
CHEROKEE YOUNGS, AT BAR THE NIGHT DANIELLE DISAPPEARED: She asked whoever these two people were, and Barbara said -- she didn't know her name, so she didn't say our names. And we were just kind of walking away, and she said, are you together, or something like that. And I said, yes. And then, Brenda had made a comment saying, I like to take these two home. I wouldn't mind taking these two home.
(END VIDEO CLIP)
KING: We're going to get back to calls, but Nancy wanted to comment on the last thing you said and I want to ask Steve something -- Nancy.
GRACE: Well, the caller made a really good point about how strong, how solid was the DNA. And in this case, Larry, it's very, very strong. The girl's blood on his jacket, in the floor of his RV, her fingerprints, if you can hold the thought of her little left hand right beside, directly beside the bed in his RV.
But the caller's question is interesting to me on another level in that the defense has done an excellent job by putting up one expert after the next on this bug issue, thereby putting it further and further away, the verdict further and further away from the DNA evidence and the child pornography evidence, distancing the jury from that evidence.
KING: And, Steve Fiorina, do you hear anything about any last- minute strategy in summation?
FIORINA: One thing I've seen from the defense is they have tried several times to get lesser included offenses in the jury instructions. Now, they came with the lifestyle issues, and I'm not sure that the jury read that too favorably because they saw the family on the witness stand emotionally torn up by this.
They tried to do some other things with the bug experts. And the prosecution brings their own experts, and it's all very contradictory and as the people on the panel say, that kind of cancels it all out. Well, today the defense also asked to have possible instruction given that what if the little girl were killed in her bedroom unintentionally? Well, Judge William Mudd said, well, we've got her fingerprint in the motor home, that doesn't even go -- that's not going to go into the equation.
So, they were trying to hedge their bets, I think. But the judge said -- and what that would do is, of course, take away the kidnapping during the course of a murder, which would take away the death penalty. But the judge doesn't go for it.
KING: OK. Let's take a call. Lebanon, Missouri, hello.
CALLER: Hi, Larry. And this goes to the panel. I'm curious to know about the van Dam murder, if that would go to the death penalty, it seems like they were both horrific murders, so wouldn't that cause for the death penalty? And if so, how many appeals do these people get before they're put to death? I'm very serious about this.
KING: Well, they get a lot of appeals.
GRACE: Well, it is a death penalty case.
KING: But, Nancy Grace, is this a death...
GRACE: Yes, right.
KING: But they haven't made that decision yet, right?
GRACE: Well, they announced -- the prosecutors announced at the get-go they were seeking the death penalty. But the jury must come back -- in order for it to get to that phase, the jury must come back with a guilty verdict on felony murder or murder one. Then, this same jury will sit through basically another trial on penalty phase. At that point, there will be aggravation from the state, mitigation from the defense. The defense will want life and the state will want death. So, this is a death penalty case.
GERAGOS: And if it's a death verdict, then you get a direct appeal to the California Supreme Court. If you lose that at the California Supreme Court, then you start winding your way through the federal process.
GRACE: And you've got about 15 to 20 years of appeals.
KLAAS: Larry?
KING: Yes?
KLAAS: You know, to put in it a different context, there are over 600 men on death row in the state of California. And California has executed 11 individuals since 1977. So, this guy's not ever going to be executed. But the chances of him ever getting back on the street again, if in fact he's convicted and sentenced to death, are not very good at all.
KING: Baton Rouge, Louisiana, hello.
CALLER: Hello. I'd like to ask Mr. Klaas what he thinks about the fact that from the moment these guys are picked up, taken to jail, arrested until the time they go to prison, they're convicted, they're segregated from the other inmates, they're kept separate for their own protection.
KLAAS: That's exactly right, because there's even a type of honor among killers, thieves and murderers. They don't want -- they have children too. They don't like somebody that is going to attack the most vulnerable of our citizens. So, in fact, that's what you get. You have entirely segregated prisons in the state of California. I think it's in Corcoran where you have all of the sex offenders. And, unfortunately, it then just becomes a university of perversion, where they network and figure out ways to become more even diabolical once they get out of prison.
KING: Veronica, you would have a field day there, huh?
THOMAS: Well, it would be an interesting population to study, certainly.
KING: We'll be back with more moments and more of our panel on this edition of LARRY KING LIVE. As we go to break, the dry cleaner, he's a figure in the case. Watch.
(BEGIN VIDEO CLIP)
UNIDENTIFIED LAWYER: Did you see him ever come to the store dressed like that before?
JULIE MILLS, WORKS AT WESTERFIELD'S DRY CLEANERS: No, I have not.
UNIDENTIFIED LAWYER: How about his physical condition, the way he was put together? How was he?
MILLS: I'm sorry? As far as?
UNIDENTIFIED LAWYER: How did he appear, his person?
MILLS: He appeared tired, very distant, not wanting to talk very much.
UNIDENTIFIED LAWYER: What do you mean?
UNIDENTIFIED LAWYER: Foundation, objection.
UNIDENTIFIED JUDGE: Overruled.
UNIDENTIFIED LAWYER: In the past, have you had conversations with him?
MILLS: Yes, I have.
UNIDENTIFIED LAWYER: How does he appear in the past?
MILLS: Oh, very talkative, very -- he smiled a lot. He can hold conversations.
UNIDENTIFIED LAWYER: And on this occasion, how did it vary?
MILLS: He was very the opposite. He would not talk to me. He was very distant. He would not look at me eye to eye.
(END VIDEO CLIP) (COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
UNIDENTIFIED LAWYER: You say you were dancing on that occasion. Who were you dancing with?
BRENDA VAN DAM, VICTIM'S MOTHER: All three of the girls were dancing together, and that was basically about it.
UNIDENTIFIED LAWYER: How about any guys? Were you dancing with any guys there on the 25th?
VAN DAM: I don't recall.
UNIDENTIFIED LAWYER: How about Barbara or Denise, do you know if they were they dancing with any of the guys?
VAN DAM: Yes.
UNIDENTIFIED LAWYER: How long did you stay?
VAN DAM: Until about 1:30.
UNIDENTIFIED LAWYER: Do you know if the defendant was still there when you left?
VAN DAM: I have no idea.
UNIDENTIFIED LAWYER: Why not?
VAN DAM: Because I wasn't keeping track of him.
(END VIDEO CLIP)
KING: Montreal, hello.
CALLER: Hi, Larry. I've been following the trial from the beginning, and it seems to me that if the people -- if the jury is expected to render a real verdict, they should hear everything, like there's a lot of meetings that are made without the jury present, and they should hear everything. And I have a question for Nancy. How long do you think it's going to take for the jury to give a verdict?
GRACE: Well, I'll tell you what, what concerns me about the length of the deliberations is that after a while, when everyone's been arguing and going at it day after day after day, it's easy to mis-try, to hang up, when you really dig your heels in, and that series of entomologists the defense has put up could give this jury, just one juror, a peg to hang their hat on to acquit.
Therefore I think that we will see a long deliberation. I'm predicting a guilty verdict, based not on the entomologists experts, but on the DNA.
KING: Dr. Baden, if you were sitting on a jury and two experts were in conflict, how do you weigh it?
BADEN: It depends on the subject and, as Nancy said, the DNA is much more reliable and much more tested than the maggot and bug materials. I think also in this kind of situation, the hair becomes very important because they did do mitochondrial DNA analysis. That makes the hair found in the RV much more valuable than the old way of looking at hair under the microscope.
So I think that for a jury, though, to have conflicting expert reports can be very difficult to manage, and in this situation, though, it's the science that's conflicting. Bugs versus DNA, and DNA is much more reliable in this kind of a situation.
KING: Dr. Thomas, have you testified in court?
THOMAS: Oh, yes. Oh, yes.
KING: Is that always difficult for you when the other side cross-examines?
THOMAS: Well, it can be, certainly. Depending on what the stakes are. But ultimately, it really comes down to what information I can provide the (UNINTELLIGIBLE) of fact from a scientific basis to help them in their decision-making process.
KING: Big crowd there tomorrow, Steve?
FIORINA: You better believe there'll be a big crowd here. We're already trying to figure out who is going to get what seats in the courtroom. As you know, there are 10 seats for the media, 10 for the public and a few for the family members, and that's it. It's a small courtroom.
One thing that we have a history here in San Diego, we've had three large, large murder cases over the past several years. All three of those yielded hung juries the first time around, and they had to go back and do the whole thing ahead twice, and in each of those three they got convictions the second time around.
KING: Marc Klaas, do you expect this to go a while?
KLAAS: Oh, I think it will go forever. You know, in our case, it took four days for guilt and four days for sentencing, and it was pretty shut and dry.
But Larry, very quickly, I think that the fascination the public has with courtroom procedure stems from the fact that at least for my generation, it was always a secret arm of the government. The only way you could ever get into a courtroom was if you were an invalid or you were somehow unemployed. Otherwise, you were just getting secondhand reports from the newspaper. And now with the advent of Court TV, we're seeing it for all its glory, and I think it's just fabulous that people are seeing inept judges, they're seeing underhanded prosecutors and sometimes underhanded defense attorneys, as well. So, you know, God bless Court TV and America's ability to see what's going on in the courtroom. KING: Mark Geragos, would you have Court TV at every trial?
GERAGOS: No, I don't think I'd have it at every trial, but I certainly think that there are trials where it makes a whole lot of sense. That caller from Montreal, for instance, when she was asking about why doesn't the jury get to hear everything, I think it's fantastic for people to hear when the judge discusses evidentiary motions as to why something shouldn't come in. It's either irrelevant, or it's inflammatory, or it shouldn't be in. You know, it's not just the defense who doesn't want certain evidence. A lot of times it's the prosecution that doesn't.
So it's educational. And I think it certainly beats the heck out of the alternative, which is somebody always saying, well, my brother's got a gardener who's got a sister who was acquitted in a similar situation. It's better to see what actually goes on in the courtroom.
KING: Thank you all very much. Nancy Grace, Mark Geragos, Marc Klaas, Dr. Michael Baden, Dr. Veronica Thomas, and Steve Fiorina, the reporter on the scene for KGTV and for us tonight at the San Diego courthouse. I'll be right back to tell you about tomorrow night. Don't go away.
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