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JANE VELEZ-MITCHELL

Caryn Kelley Found Not Guilty

Aired May 29, 2013 - 19:00   ET

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


JANE VELEZ-MITCHELL, HOST: Breaking news in the case of a beautiful Florida realtor accused of killing her boyfriend. The jury says Caryn Kelley is not guilty.

(BEGIN VIDEOTAPE)

CARYN KELLEY, ACQUITTED OF MANSLAUGHTER (via phone): Hurry! Just get somebody here quick. He was shot in the head with a gun.

UNIDENTIFIED FEMALE: We, the jury, find the defendant not guilty.

UNIDENTIFIED FEMALE: We`re very happy. We knew it was coming. It`s been two years of hell for us.

KELLEY: He took my arm. He took the handle, and he pointed it to his head. He goes, "Do you want to shoot me? Do you want to shoot me?"

I go, "Don`t do this, it`s loaded."

UNIDENTIFIED MALE: Why are you so confident? You`re so confident.

KELLEY (on camera): Because I didn`t shoot him. I know that.

(via phone): He put a gun to his head and he goes, "Just let me do it." He was joking, but bam, it went off.

I`m like, oh, my God. I didn`t ever mean to do that.

UNIDENTIFIED MALE: What are you going to do next?

KELLEY (on camera): Go to Disney World.

(END VIDEOTAPE)

VELEZ-MITCHELL: Caryn Kelley was charged with manslaughter in the 2011 shooting death of her boyfriend Phillip Peatross. Though she told several seemingly conflicting stories about the night Phillip was shot, she has since maintained that he shot himself.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: State of Florida versus Caryn Kelley, verdict. We, the jury, find the defendant not guilty.

(END VIDEO CLIP)

VELEZ-MITCHELL: Wow. Look at that smile.

Phillip died of a single gunshot wound to his head in Caryn`s bedroom. That night she called 911 in complete hysterics. Listen to her that night.

(BEGIN VIDEO CLIP)

KELLEY (via phone): Oh, my God! Hello! 911? Hello? Is this 911? Hello?

UNIDENTIFIED FEMALE: OK, you need to stop screaming so I can hear you.

KELLEY: Oh, my God. I need somebody. Oh, my God; oh, my God. Oh, God! Oh, God! No! Oh, my God! 911, hello? My boyfriend just died.

(END VIDEO CLIP)

VELEZ-MITCHELL: Caryn says she pulled out a gun when Phillip entered her house at about 4 in the morning, and as they struggled over the gun, he accidentally shot himself.

But she told several stories. Some say it`s as many as five. Listen to what she told reporters after learning that she was found not guilty, that she`s a free woman.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Why are you so confident? You`re so confident.

KELLEY: Because I didn`t shoot him. I know that.

UNIDENTIFIED MALE: If you would have changed anything that night would there have been anything?

KELLEY: I`m not going answer that question.

UNIDENTIFIED MALE: What are you going to do next?

KELLEY: Go to Disney World.

(END VIDEO CLIP)

VELEZ-MITCHELL: Did you hear that? She said she`s going to Disney World. She is going to Disney World.

What do you think of that comment? Give me a holler: 1-877-JVM-SAYS. That`s 1-877-586-7297.

Straight out to Caryn`s attorney, Diana Tennis, doing her very first primetime interview.

First of all, congratulations.

DIANA TENNIS, CARYN KELLEY`S ATTORNEY: Thank you.

VELEZ-MITCHELL: You have won big, big, big in a huge case.

Now, your client did -- for the first time, when we talk about this story, everybody says, well, she gave several different explanations of what happened. That very night, a lot of them on the same call from it was self-defense to he shot himself. So that`s kind of a hurdle. How did you sort that out for the jury?

TENNIS: To me, honestly, Jane, I did not think it was harmful at all. Because if you take the statements that she made in the first minutes and the first hour, it really isn`t that difficult to piece together the six hours that she was describing.

She was describing, "We had an argument the night before because he wanted to drive. And I was upset about that. I said, `Go, just go.` He left. I did not expect him to come back. And all of a sudden at 4:30 in the morning, there`s somebody in my house. I hear the chime of the door. I get my gun out. He enters the room, and he decides to come over and take the gun from me and he gets shot."

I mean, it wasn`t -- it really wasn`t that inconsistent if you just put it together in that six-hour continuum. And every single time she described what happened, it was "He took the gun from me after entering my bedroom."

VELEZ-MITCHELL: Well, now, during opening statements, you said Caryn couldn`t wait to tell the jury about her version of what happened, what you just told us, the night that Phillip was shot dead. But she ended up not taking the stand. We`re going to talk to you about that in a second.

But first, listen to what she told reporters after being found not guilty in the shooting death of her boyfriend.

(BEGIN VIDEO CLIP)

KELLEY: Relieved.

UNIDENTIFIED MALE: Did you have any doubts?

KELLEY: No. That`s why I didn`t testify.

UNIDENTIFIED MALE: What do you have to say to Phillip Peatross`s family now?

KELLEY: They already know how I feel about Phillip. Anybody that knows me knows I would never do such a thing.

UNIDENTIFIED MALE: What do you say to that? They don`t seem happy.

KELLEY: I can`t help their emotions.

(END VIDEO CLIP)

VELEZ-MITCHELL: All right. Let`s debate it with our expert panel. Was it smart for Caryn not to testify in her own defense? Starting with Lisa Bloom, legal analyst for AVVO.com.

LISA BLOOM, LEGAL ANALYST: Well, the proof is the results, Jane. They got a "not guilty" verdict here. It`s very unusual. Nine out of ten criminal cases result in a guilty verdict. This is a not guilty. So I`m not going to question what the team did.

VELEZ-MITCHELL: Brian Silber for the defense.

BRIAN SILBER, DEFENSE ATTORNEY: Well, the proof is in the pudding, Jane. You know, the fact that they won shows they made the right choice. But I can tell you, most times, a jury does need to hear the defendant`s version of what happened.

In this case, it happened to work out. But in most cases, I typically advise against it.

VELEZ-MITCHELL: All right. It seems like you know what? Does anybody debate -- anybody think it was a good idea for her to take the stand? Anybody on our panel? Loni, what do you think?

UNIDENTIFIED MALE: No.

VELEZ-MITCHELL: OK. We`re not going to debate it. We`re not going to debate it, because we all agree.

So let me go back to Diana Tennis, the attorney for Caryn Kelley. Smart move, according to all of our experts. How did you arrive at that decision?

TENNIS: Well, the smart move was not having her testify. The dumb move, the move that I would make over again, had I to do it over again is giving the jury the impression in closing -- in opening arguments that she would definitely testify.

At that point, I truly did not believe that you could have a case where you`ve got two people in a room with a gun, one walks out, the other one doesn`t, and not hear from the person who survived. I didn`t think that that was possible. And so, I told them some things that only she would be able to tell them and told them she would testify.

But during the state`s case, Jane, I`ve got to tell you, things just went so much better than I expected. The detectives were admitting that it was an accidental struggle over a gun. Dr. Garavaglia, Dr. G., did not go on that limb she usually goes out on and was pretty reserved.

We got in the Baker Act information. I got in the second two statements that my client made that the state was trying to keep out.

So things started looking so positive that it just didn`t seem like bringing somebody else, bringing a witness in, my defendant, my client, who`d had two years to work on this story, why would they believe her? They`re either going to believe her emotion and what she said right then, that he took the gun from her, or they`re not going to believe her. So it just didn`t seem like I had anything to gain, honestly.

VELEZ-MITCHELL: now, the other big thing about this case was, let`s face it, booze. These photos that we`re going to show you in a sec show that alcohol and pill bottles were found at the scene. Caryn`s attorney admits Caryn and Phil had been drinking that night.

And there they are. He registered a .11. Most of us know that`s way over the legal limit of .08. Caryn also appeared very inebriated in her cell-phone videos the night of the shooting.

(BEGIN VIDEO CLIP)

TENNIS: She had been drinking wine. Straight white wine. Her boyfriend, Mr. Peatross, had had some wine, and then he had some vodka, and then he made a pitcher of margaritas.

KELLEY: He was talking about leaving. And I said, "Don`t leave, don`t drive drunk. You`re stupid if you leave." And he came back. And I go, "Don`t drive drunk."

(END VIDEO CLIP)

VELEZ-MITCHELL: All right. Let`s debate it with our expert panel. How much of a factor was alcohol in this death and in this trial? Starting with Dwane Cates, criminal defense attorney.

DWANE CATES, CRIMINAL DEFENSE ATTORNEY: I think it was a big factor in this. Because, you know, that explained the inconsistent stories. I mean, it`s not the first time that somebody on a 911 tape, you know, drunk, is trying to describe something and describes several things at the same time and is confused.

VELEZ-MITCHELL: Yes. I agree with you.

Loni Combs, you know, if somebody tells five different stories, and they`re stone-cold sober, they`re diabolical, they`re a liar, hmm, who does that remind me of? But we`re going to talk about her later. You know who I`m talking about. Starts with J. and A. Those are the initials. But if you`re...

SILBER: Ends with Arias.

VELEZ-MITCHELL: If you`re wasted, as it were, if you`re totally wasted, then often you don`t know what`s happening. I have to admit, I`m 18 years sober. And I was a blackout drinker. I sometimes didn`t remember anything, like, "Dude, where`s my car?" kind of not remember anything on me.

LONI COMBS, ATTORNEY: Yes. I think this is almost the opposite of Jodi Arias. I mean, this lady was so blabbering that she wanted to get everything out when she was talking. And there was no way she was trying to protect herself.

Honestly, everything seemed to be so credible. It`s just like, "Please help my boyfriend," and "I need this," and "This is what happened." She was just blurbing around. She couldn`t stop talking. They couldn`t get her to stop talking. And so it really rang -- it had that ring of truthfulness and credibility.

And while I think it had a huge factor in ending the victim`s life, sadly, I also think it had a huge factor in going to her credibility in what she was saying.

VELEZ-MITCHELL: And Diane, I just want to clear this up. She`s getting a little flak, your client, for saying, "I`m going to go to Disney World." Do you want to put it in perspective? Because I kind of understand it`s horrible. The family of this -- of this dead man is suffering. My heart goes out to them, my condolences to them.

But she must be experiencing elation, knowing she`s not going to jail -- prison for 30 years.

TENNIS: Yes, I mean, I think it`s impossible unless you`ve walked either in those shoes or near them, to understand what it`s like to go through two years of feeling like you are blamed for a horrible accident, and your life is on hold, and you may go to prison. And that feeling of relief is -- it will make you say dumb stuff.

I mean, it was a -- it was an attempt at humor in a moment where she was feeling a lot of joy, and frankly, I was feeling a lot of joy. I just knew better than to make jokes in that moment, and she didn`t. But she didn`t mean anything by it. And I think you`ve got to give somebody in that situation a little bit of a pass.

VELEZ-MITCHELL: All right. If you can hang on, we`d love to keep you. Fabulous interview. And it`s great talking to you. We have more on the other side.

And of course, we`re also talking about Jodi Arias. But check out this. I mean, this case is astounding because it was caught on tape, 911 and cell-phone camera.

(BEGIN VIDEO CLIP)

KELLEY (via phone): Oh, my God! My gun went off in the house. My boyfriend just died. He needs an ambulance 911.

UNIDENTIFIED FEMALE: Listen to me, I`m going to transfer you to paramedics. They`re going to give you CPR instructions. OK? Don`t hang up. Don`t hang up, OK.

KELLEY: I need to know what to do.

UNIDENTIFIED FEMALE: Listen to me. I`m going to transfer you. Don`t hang up.

UNIDENTIFIED FEMALE: Exactly what happened?

KELLEY: Just get someone here quick. He was shot in the head with a gun.

UNIDENTIFIED FEMALE: Listen to me. Did he shoot himself? Yes or no?

KELLEY: No, no, it was like...

UNIDENTIFIED FEMALE: Who shot him?

KELLEY: It was a self-defense thing. And it was an accident. It was an accident.

UNIDENTIFIED FEMALE: Did you have the gun?

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

KELLEY: He was talking about leaving, and I said "Don`t leave, don`t drive drunk. You`re stupid if you leave." And he came back. And I go, "Don`t drive drunk." And I said, "If you come back to the house. I mean, I have -- you know, a weapon and you know I`m going to use it if you`re coming in my house and I don`t know who it is."

So I went to bed. And all of a sudden, I wake up in the middle of the night, and someone is in my house. And I said, "Phillip, you know I have a weapon. Don`t do this." I was like, "Hey, don`t come here with me."

And he was like, "Don`t, you`re not." And he put it to his head. "You going to shoot me? You going to shoot me?"

And it went off. I`m like, "Oh, my God. I didn`t ever mean to do that."

(END VIDEO CLIP)

VELEZ-MITCHELL: Diana Tennis, the attorney for Caryn Kelley, who was found not guilty. She could have spent 30 years in prison, and she`s a free woman tonight, saying she might go to Disney World.

How much of that incredible video did -- if any, did the jury see?

TENNIS: They saw every single bit of it. They heard and had available to them every single bit of her on tape, from the 911 call to the video in front of the house, to the statements given to the cops at OPD, to video of her sitting in the room when she got there originally to the police department. So all of it was available to them.

VELEZ-MITCHELL: Do you think the fact that she`s clearly inebriated worked for her or against her?

TENNIS: Well, it`s hard to say. I think that, if this was a situation where somebody was swigging the Jack Daniels and picking up the gun in the other hand and getting into a fight with somebody and something horrible happens, that`s manslaughter.

But I think if you are awoken by your boyfriend coming in your house at 4:30, and it appears that you`ve gone to bed and believe he`s left forever, or at least for that night, and you take your gun out, which you have the lawful right to do, because you`re fearful there`s somebody in the house, you don`t get to pick and choose when you wake up scared. Just because you happen to have had a lot to drink the night before doesn`t take that right to protect yourself and your home away from you.

I mean, ultimately, all she did was stand up in her bedroom with a gun in her hand. She had no control over what he did when he entered that bedroom. And that`s where the tragedy occurred.

VELEZ-MITCHELL: Let`s go out to the phone lines. This is a case that has attracted national attention. Pam, Florida, your question or thought. Pam?

CALLER: Hi, Jane, love you.

VELEZ-MITCHELL: Thank you.

CALLER: And I live in the Orlando area. I just wanted to say that it seems, if you want to get away with killing somebody, come on and move on down to Florida. The juries here are out of their mind.

And that comment that she made when she left court and her demeanor as she left court, I believe says exactly whether or not Caryn Kelley was actually guilty and should have been found guilty of manslaughter. Phillip`s still dead.

VELEZ-MITCHELL: Well, let me say this. Let`s bring in our expert panel. Because here`s a woman who was in the area. She could have been in the jury pool, for all -- potentially. Loni Combs, what do you make of it, as a former prosecutor?

COMBS: Well, you know, it`s interesting she brought that up. I thought the exact same thing. When I heard that comment about going to Disneyland [SIC], I thought there was no way the attorney could have put her on the stand, if she has any type of feistiness of like that where she doesn`t take the whole process seriously. That would have turned the jury away.

And as we learned from listening to the Jodi Arias jurors, jurors really pay attention to are they showing remorse? Do they seem like they`re sorry? Are they taking the whole process seriously?

And in this case, especially when the jurors gave her a pass on this and found her not guilty, even if she didn`t do it, her boyfriend was still killed; her gun was used. And so it`s a very serious situation whether she`s legally at fault or not.

VELEZ-MITCHELL: Well, listen, Lisa Bloom, not everybody in the world is emotionally mature. That doesn`t mean they`re a killer or not a killer. She may be an emotionally immature person.

BLOOM: Listen, this isn`t a funeral or a memorial service. This is a criminal trial. She says that she was wrongly prosecuted. The jury agreed with her.

Now, not everybody is blow-dried and sound-bite worthy. She`s a human being. She went through a horrific ordeal. She was exonerated. I, frankly, don`t think it`s so terrible that she said, "I want to go to Disney World."

VELEZ-MITCHELL: All right. Listen, tomorrow night, secret lives, we`re studying the Jodi Arias case and getting the secrets. And we`re talking Jodi Arias in a couple of seconds. Stay right there. More of these incredible tapes.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Listen to me, did he shoot himself, yes or no?

KELLEY (via phone): No, no, it was like...

UNIDENTIFIED FEMALE: Who shot him?

KELLEY: It was a self-defense thing. It was an accident. It was an accident. He put a gun to his head. He said, "Just let me do it." He was joking, but bam! It went off.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

KELLEY: I said, "Go back in the house. I have, you know, I have a weapon and you know I`m going to use it." And I wake up in the middle of the night and someone`s in my house. And I said, "Phillip, you know I`ve got a weapon, so don`t do this."

He took my arm. He took the handle and he put it to his head.

(END VIDEO CLIP)

VELEZ-MITCHELL: Some people have compared this case to the Jodi Arias case. This case is very different for a whole bunch of reasons.

No. 1, Caryn was in her own home the night that Phillip died. She legally owned the gun that fired the deadly shot. She called 911, like an innocent person would, and she pleaded with them to save his life.

And it seems that she was very drunk at the time, which could account for the confusion about what really happened.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Listen to me, did he shoot himself? Yes or no?

KELLEY (via phone): No, no, it was like...

UNIDENTIFIED FEMALE: Who shot him?

KELLEY: It was a self-defense thing. It was an accident. It was an accident. He put a gun to his head. He said, "Just let me do it." He was joking, but bam! It went off.

(END VIDEO CLIP)

VELEZ-MITCHELL: Let`s debate it. Could it be more different? Starting with Dwane Cates, criminal defense attorney out of Arizona.

CATES: Well, you know what? It couldn`t have been any different than what she said it was. I mean, you know, she was clearly intoxicated. He comes in the house, there`s a struggle over the gun, and it goes off. There`s absolutely no evidence in this case that his finger -- that her finger was on the trigger of the gun in this case. Not...

VELEZ-MITCHELL: Brian Silber, criminal defense attorney.

SILBER: Jane, the bottom line is this. We have to remember what a trial is about. It`s the prosecutor who has to prove that she did it. She does not have a burden to prove that he did it.

So in the case where you have, like this one, where there is no actual evidence of who pulled the trigger, you can`t vote guilty. And that`s just the bottom line in a case like this.

VELEZ-MITCHELL: Lisa Bloom.

BLOOM: I haven`t followed this one as close as Jodi Arias and Casey Anthony and O.J. Simpson, but it does seem like the jury got to the right result. The real problem that she had was telling all of those different stories.

You`re right. She behaved like an innocent person, like it was an accident or he shot himself, because she called immediately. And doesn`t she sound genuine on that 911 call? Just so upset, begging them to come. That`s not what a guilty person usually does.

VELEZ-MITCHELL: And Loni Combs.

COMBS: It comes down to one simple question for the jury: Can you know beyond a reasonable doubt who pulled that trigger? And I really don`t think the facts here, that you could tell.

And clearly, she didn`t seem to have any intent to want him dead. There was a lot going on that night. I think what it comes right down to that very simple question, reasonable doubt was built in there. Because no one could put that gun in either one`s hand. They just didn`t know who it was.

VELEZ-MITCHELL: All right. Speaking of Jodi Arias, coming up, what could be next for Jodi Arias. There is breaking news. Is the state going to try a second time to give her the death penalty?

(BEGIN VIDEO CLIP)

JODI ARIAS, CONVICTED OF MURDER: Instead I was hoping to go quietly tonight whether off to prison or my next life. But with the amount of attention my case received early on, I felt in my ignorance that it was necessary to speak out. I got on TV, and I lied. I lied about what I did. And I lied about the nature of my relationship with Travis.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

UNIDENTIFIED FEMALE: Justice for Travis! Justice for Travis! UNIDENTIFIED FEMALE: Justice for Travis! Justice for Travis!

UNIDENTIFIED FEMALE: Justice for Travis! Justice for Travis!

UNIDENTIFIED FEMALE: There are two kinds of people that commit them. One type are people that emotionally have problems, that have behavioral problems. The other type are people that are innately evil. And I think that Jodi is the second.

ARIAS (singing): The night he died. Oh night, oh night divine.

(END VIDEO CLIP)

VELEZ-MITCHELL: Tonight, the tension is building. The question mark is getting bigger and bigger and bigger and bigger. Will they or won`t they retry Jodi Arias in front of a jury in order to decide life or death? They need a new jury for that.

Jodi Arias has been convicted of premeditated murder in the brutal killing of her ex-boyfriend, Travis Alexander. But her fate is still hanging in the balance.

We just learned moments ago -- breaking news, just in, this is breaking news -- that the Arizona Supreme Court will not take the death penalty off the table. Will not do it. So the death penalty still on the table. And now there are rumblings tonight that push is coming to shove.

Will the prosecution lose face and suffer total embarrassment if they don`t retry Jodi on the penalty phase, or can they already claim victory because they got a first-degree murder conviction?

We all saw what happens when the state unleashes prosecutor Juan Martinez. Will they send Juan in for round two?

(BEGIN VIDEO CLIP)

JUAN MARTINEZ, PROSECUTOR: So how is it that if it just happened you can`t even remember what you just said?

JODI ARIAS, CONVICTED OF MURDER: Because I`m focused on your posture, tone and anger. So it`s hard to process the question.

MARTINEZ: The answer is, again, it`s the prosecutor`s fault because you perceive him to be angry.

ALYCE LAVIOLETTE, DEFENSE WITNESS: Do you want the truth, Mr. Martinez? Or do you want yes or no?

MARTINEZ: Ma`am I`m asking you a question. You seem to be having trouble answering my question.

(CROSSTALK) MARTINEZ: If you have a problem understanding the question, answer that. If you want to -- do you want to spar with me? Is that -- will that affect the way you view your testimony.

JENNIFER WILLMOTT, DEFENSE ATTORNEY: Objection -- argumentative.

(END VIDEO CLIP)

VELEZ-MITCHELL: Let`s debate it with my expert panel. Predictions, people -- will they or won`t they retry Jodi Arias to decide life or death? We are going to start with the guy in Arizona who stood next to me for weeks on the courthouse steps in Phoenix, Dwane Cates?

DWANE CATES, CRIMINAL DEFENSE ATTORNEY: They are not going to try this case and they shouldn`t retry this case. You know, we spent five months and millions of dollars getting to the point where we are at right now. And they need to just let it go. They got a first degree conviction. There`s not much chance that the judge is going to give her possibility of parole in 25 years. It`s a life sentence. And they just have to let it go. There`s no reason to do this again.

VELEZ-MITCHELL: Brian.

BRIAN SILBER, CRIMINAL DEFENSE ATTORNEY: No way. There`s no way.

CATES: How can you do it again? How can you replicate all this again?

VELEZ-MITCHELL: Ok. Hold on.

SILBER: Because that`s what the victim`s family wants and that`s what the prosecution wants. Of course, they`re going through it again.

CATES: Do they want five more months -- they want five more of this stuff?

SILBER: Absolutely.

CATES: They want to sit in a courtroom for five months? There`s no way. There`s no way they want to go through that.

(CROSSTALK)

VELEZ-MITCHELL: In these debates, Lisa Bloom is often the voice of reason. What say you, Lisa?

LISA BLOOM, ATTORNEY, AVO.COM: Well, it wouldn`t be another five months. We`re not going to retry the entire case. We`d be retrying the death penalty portion.

CATES: That`s right.

BLOOM: But I say Juan Martinez should let her get life in prison without the possibility of parole. You know I`m anti-death penalty in all cases. And here a death-qualified jury who couldn`t stand Jodi, whose heart broke for Travis Alexander, could not impose death in this case when push came to shove. I just wrote a piece about this on Avo.com.

CATES: But the defense -- the defense would be entitled to bring -- to do the whole thing over again.

VELEZ-MITCHELL: The very polite Loni Coombs.

LONI COOMBS, FORMER PROSECUTOR: They should absolutely go for the death penalty again. The family is very clear this is what they want. Juan Martinez is clear that`s what he wants.

SILBER: Correct.

COOMBS: We are talking about justice here. We`re not -- it`s not a score sheet for how much it cost and how much time it`s going to take. We are talking about what is justice for this case?

And you know what; if they hang again, ok, that`s the answer that the jury is giving you. But as the law allows in Arizona two bites at the apple; they get two chances in front of a jury. We get hung juries all the time. This isn`t the first hung jury in all of history. They know how to retry a case. They know how to put it on again in front of a jury. They will be able to do it.

And either this jury will be able to come to a verdict, life or death or they`ll hang again. But that`s allowing justice to do what it`s supposed to do. That`s the system that we have.

VELEZ-MITCHELL: Yes. And by the way, tomorrow right here, 7:00 p.m. Eastern "SECRET LIVES: Jodi Arias", we are looking deep into the secrets at the heart of this case.

But first, let`s go out to the phone lines. Tammy, Idaho, your question or thought -- Tammy? Oh Tammy --- all right. Well, I got -- I guess Tammy is doing something else right now.

Jodi`s trial -- it was all about the sex. Maybe she`s replaying some of those sex tapes. Jodi is responding to claims that is she is a sex kitten. Listen to this from KPNX.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: You were portrayed as this almost vixen, a sex kitten throughout the trial. I think that`s, in part, why this became so sensational because the nudity and naked pictures, the texting and sexting.

ARIAS: When you are in a relationship, you are in a relationship.

UNIDENTIFIED MALE: Right.

ARIAS: You know? So, of course none of these things were intended to ever be public. I`m mortified that all of that became public.

(END VIDEO CLIP)

VELEZ-MITCHELL: All right. If there is a retrial on the life or death issue with a new jury, will sex again, rear its -- no, let me not use that turn of phrase -- will sex be the wild card? Will it take center stage again -- Dwane Cates?

CATES: It has to. See the defense gets to bring out anything that they want to from the original trial. They could do the whole thing over again, you know.

And look at it. This jury saw all the warts. They saw everything. They saw all the lies. They saw everything and it was 8-4. Ok? It wasn`t 11-1; it was 8-4. Let it go.

VELEZ-MITCHELL: Well listen.

(CROSSTALK)

SILBER: If you want to see --

COOMBS: Cates -- look, look. You know that this defense is listening to these jurors. And these jurors are talking and they`re saying very specifically what did and did not work for Jodi Arias. They did not believe a lot of what she said. They didn`t believe the physical abuse. They didn`t believe that Travis was a pedophile. Defense should listen to that and take that into account and change their strategy the second time around. Don`t redo what didn`t work with the first jury.

(CROSSTALK)

VELEZ-MITCHELL: You`re singing my song. I think that that could turn the entire trial into -- the first trial into a dress rehearsal for Jodi Arias like getting on that witness stand and hanging on for dear life and riding it out to how many days. Who knows? I mean isn`t that possible -- Brian Silber?

SILBER: It`s certainly possible but I think the direction it will take is more expert testimony. You know, I think the way they are going to go, if they change the game plan and that`s yet to be seen, it will be about new experts that talk more about her psychological profile and the things in her personality other than the abuse part that should give reason as a mitigator why not to impose the death penalty.

VELEZ-MITCHELL: Well, Lisa Bloom, can they do that? Can they say, you know what we realize that maybe we should have taken advantage of the fact that the prosecution said she had borderline personality disorder. Well, we`re going to offer a new argument now and say, you know what; it wasn`t self-defense, she`s crazy. She`s out of her mind.

BLOOM: Absolutely Jane. Clean slate, new death penalty phase. I mean they should put on other witnesses like Jodi`s family members who can talk about her childhood and cry and say how upset they would be if she`s put to death. I mean we only had her testifying for the defense this time around. I thought that was a big mistake. The defense has a chance to do it over. They could get more than four votes for life in prison the next time around.

VELEZ-MITCHELL: All right. Wow.

COOMBS: And you know, we`ll also see --

VELEZ-MITCHELL: Here`s the thing. Let me just say this. We are going to talk about this again. We are going to stay on top of this because you know right now that there`s a top prosecutor above prosecutor Martinez who has to make this decision and that is a huge decision. He`s probably sitting there thinking about it right now. Maybe he`s even watching our show, who knows.

Now, up next, a very troubled starlet -- very, very, very bizarre behavior. How did Amanda Bynes go from red carpet to courtrooms? And what`s with the hairdo?

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(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: She has done a series of questionable things.

UNIDENTIFIED MALE: Completely denies having thrown anything out the window.

UNIDENTIFIED MALE: A successful young actress with a once clean cut reputation.

UNIDENTIFIED FEMALE: She has shaved her head. She`s in the gym. People are saying that she`s talking to herself. Then she just spends all night long manically on Twitter.

(END VIDEO CLIP)

VELEZ-MITCHELL: What on earth is wrong with this young lady? That`s the question a whole bunch of people are asking tonight as they watch the train wreck that is former child star Amanda Bynes.

She`s accused of tossing a bong out of her 36th floor apartment in New York City. She`s denied it on Twitter. And now she`s in a war with the New York City Police Department. Get this, Amanda is now claiming that a cop sexually harassed her, grabbed her somewhere that we can`t mention. The NYPD says there`s absolutely no evidence to support her claims but Amanda is threatening to sue everybody involved it seems.

This is the latest in a string of bizarre incidents involving this beautiful actress who appeared in front of a judge rocking a disheveled blonde wig over her shaved head.

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UNIDENTIFIED MALE: Do you live here in Manhattan?

AMANDA BYNES, ACTRESS: I do sir.

UNIDENTIFIED MALE: Are you planning on staying in Manhattan.

BYNES: Yes.

UNIDENTIFIED MALE: And if you get arrested again, if you commit any new crimes, if you fail to come to court, even if you come to court late, bail is going to be set. It`s going to be a high bail if you won`t appear before me. Is that completely clear?

BYNES: Yes.

(END VIDEO CLIP)

VELEZ-MITCHELL: Straight out to Alexis Tereszcuk of RadarOnline. Alexis, what are you hearing? Where is Amanda`s family, her parents?

ALEXIS TERESZCUK, RADARONLINE: Here parents are desperate to get her help. They are trying to reach out to her. She will not see them. She will not spend time with them. They actually have been talking they would like to do something like Britney Spears` parents did. They would like to get a conservatorship over her because they are so worried about her. She is actually accusing them. She says they have stolen money from her and she wants nothing to do with them.

VELEZ-MITCHELL: Ok. Now, let`s put this in context because not so many years ago, 2007, Amanda Bynes was very put together. And she actually sat down with HLN "SHOWBIZ TONIGHT" and talked about how she keeps her act together. Listen to this and then we`re going to hear from Dr. Drew.

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A.J. HAMMER, HLN HOST: You really have your act together. Let me go through my little checklist here. You haven`t been to jail?

BYNES: Nope, not yet.

HAMMER: Rehab?

BYNES: No.

HAMMER: No rehab. Amanda Bynes what kind of starlet are you?

BYNES: I know. What`s wrong with me. I don`t know. It`s shocking how it`s become popular to go to rehab, right.

(END VIDEO CLIP)

VELEZ-MITCHELL: Dr. Drew, that was just six years ago. What the heck happened?

DR. DREW PINSKY, HLN HOST: Isn`t that just so sad to see the striking change? I mean the picture alongside of us now tells the whole story. We don`t know what happened. None of us know her personally. But clearly, something has gone very wrong.

And it`s not at all uncommon for a significant psychiatric illness to emerge from about the age of 18 to 25 or so, even 18 to 22. So here we are right in that window and she`s starting to unravel. I`m so glad to hear from Alexis that the family is interested in getting conservatorship because those maneuvers, getting control of the situation anyway you can by the family is what saves people`s lives.

VELEZ-MITCHELL: Listen this is such a different Amanda Bynes, Dr. Drew, than the clean cut child actress who starred in movies like "Easy A" from Screen Gems. Remember this?

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BYNES: Listen, I`m not the one that you have to answer to for your depraved behavior. There`s a higher power that will judge you for your indecency.

UNIDENTIFIED FEMALE: Tom cruise?

BYNES: I hope for your sake that God has a sense of humor.

UNIDENTIFIED FEMALE: Oh, I have 17 years (inaudible) proof he does.

BYNES: You`ve made your bet. I just hope for your sake, that you have cleaned the sheets.

(END VIDEO CLIP)

VELEZ-MITCHELL: Attorney Lisa Bloom, Amanda is charged with reckless endangerment, tampering with evidence, possession of pot, the alleged bong throwing incident. It`s not her first run-in with the law. There`s a 2012 DUI case pending in California. She`s pleaded not guilty. Her lawyers are trying to work out a plea deal we hear. Two separate hit and run charges against her were dismissed. She`s on probation right now for driving with a suspended license. Could she go to jail?

BLOOM: She could but we have seen this before, haven`t we Jane, with Lindsay Lohan and others when they have these relatively minor crimes and thank goodness nobody is significantly hurt. They usually don`t get any real jail time.

I think it`s important for the judge here to put tight controls on her if she has probation that there should be random drug testing. The police should have the right to search her home with no notice. That`s what happened in Lindsay Lohan`s case as you recall probably.

I represented Michael Lohan. That`s something that we started to get more judicial intervention in the life of this woman and an attempt to help her.

VELEZ-MITCHELL: Listen, I love you Lisa Bloom but I disagree with you.

Alexis Tereszcuk, according to the police, when they were in her house and they say she through a bong out the window, she said, according to them, no it was a vase. Listen, you throw a vase out a 36-story window or a bong or anything, even a penny, you could kill someone. Now to her side, they didn`t find any shattered glass, apparently but maybe they didn`t look.

But I mean really? If she weren`t rich, pretty, blonde, living in California or New York, bicoastal, whatever you want to call it, wouldn`t some other kid end up in juvie or if they`re over 21 behind bars? Isn`t there a two-tiered system of justice in this country?

TERESZCUK: I think there is. But I think Amanda is actually a victim of her celebrity. Who calls -- what kind of neighbor calls and says she was smoking a joint in the lobby? She says she wasn`t doing that. I might be the only person but I believe Amanda 100 percent. She said she did invite the cops in. She knew what she was doing. And I`m kind of on Amanda`s side.

VELEZ-MITCHELL: Look, Dr. Drew, she had a DUI --

PINSKY: Jane, let me ask you. Under the umbrella of "you spot it, you got it," do you sniff addiction here? Because I don`t. I think this is mostly psychiatric. Do you sniff this girl having addiction?

VELEZ-MITCHELL: Look I can`t say because I`m not there partying with her or hanging out with her. So this is just my personal opinion. But if you have a DUI case from 2012 and you have already had whatever, the list is so long here, I need -- you know, yes. You have a DUI case and then the guy in the lobby says you have a bong. My feeling says that chances are it`s looking like a duck and quacking like a duck. That`s what I would say.

More on the other side.

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BYNES: I`m very lucky. I have a great family and I just have my eye on the prize, which for me is a long career. I just, I don`t want to -- I don`t want to blow what I have worked so hard to, you know, to achieve.

(END VIDEO CLIP)

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VELEZ-MITCHELL: Time for "Pet of the Day". Send your pet pics to hlntv.com/jane. Peanut, oh, oh, Peanut. Fiona Fierce -- I`m regal. I`m aristocratic. Howie, I`m just a regular, down-to-earth pooch. And Walter, look at him -- regal.

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BYNES: For me it is actually -- it`s not that hard. To me I get that you go to clubs and you hang out with those people that maybe it would be easy but I`m not interested in that. The club scene and drinking doesn`t appeal to me. It is actually easier for me not to do it.

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VELEZ-MITCHELL: That is the before picture. Take a look at this. This is her mug shot with her head shaved. She appears in court with a crazy wig, sort of cock-eyed on her head.

Dr. Drew, let`s debate it, you and me. To me when I see all of this behavior and I see the cops say she had a bong, DUI case last year, two separate hit and run charges dismissed, driving on a suspended license -- it is quacking like a duck to me.

PINSKY: Yes, I know that and I put a lot of meaning in your interpretation when somebody has a condition like addiction you can really spot it on other people. But let me propose this, Jane, sometimes psychiatric conditions are -- I know every addict wants to blame their using on psychiatric disorder -- But sometimes there is actually a psychiatric disorder fuelling the use. Typically somebody bipolar will play with their moods that way. I have to wonder if that`s what`s going on here.

VELEZ-MITCHELL: But don`t you think that -- first of all I don`t think they are mutually exclusive. I know that a lot of people who are off mentally will also abuse alcohol and drugs. And I`m not saying she is. Like this is a hypothetical argument.

PINKSY: We don`t know. Yes, we don`t know.

VELEZ-MITCHELL: I don`t know what is in her system. I`m not hanging out with her and going clubbing with her or hanging out in her house. But to me it is typical of the Hollywood star syndrome. They never had a childhood. They have all this money. They have all this power. They have people coming up probably offering them everything under the sun. And there is a reason why all of these child stars -- so many of them had the exact same trajectory -- too much too soon. They can`t be kids and now they are kids but they are kids with very adult toys.

PINSKY: Yes. That`s absolutely right. Listen. I hope she has addiction, Jane. You and I both know that is something highly treatable. This girl can get help. Things could go great for her. If it is some yet uncharacterized character problem or bipolar disorder or some complex multiple diagnosis in this situation or even possible, trauma history, who knows? We don`t know. All of those things can play out this way.

But I`ll tell you what it isn`t. It is not just a kid goofing around. This is not that. This is something far more serious than that. Jane, I have said it for so many years. I was saying this kind of thing about Anna Nicole Smith when people will watch and were just scratching their head thinking isn`t she funny.

This isn`t funny. People get really sick. They can really hurt themselves and we should be saying prayers for these people and not be laughing and pointing. But to fair, again, we don`t know this woman. We are just speculating so we can sort of understand these things. It could all be addiction or it could all be psychiatric or as you said, it could be a combo of both.

VELEZ-MITCHELL: Listen, I am not laughing. I think we are talking about it and I hope she is watching it. And if you are watching Amanda Bynes, I care about you. For some reason this show is all about alcohol tonight and various subjects of that nature. I am a recovering alcoholic. I did incomprehensible, embarrassing things when I was drinking that I woke up and I went -- who was that person? It is me.

I have been there. I`m not judging. I am saying you have to look in the mirror.

More on the other side.

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VELEZ-MITCHELL: Please join me tomorrow night right here 7:00 p.m. Eastern, 4:00 p.m. Pacific. We are going to dig deep in the Jodi Arias case and unearth the secrets to get to a deeper why. Why on earth did this horror occur?

Nancy Grace is up next.

END