updated 3/29/2004 10:36:09 AM ET 2004-03-29T15:36:09

Guests:  Leslie Crocker Snyder, Joe Episcopo, Dino Lombardi, Richard Gabriel, Jean Casarez, Howard Brodksy

ANNOUNCER:  Now THE ABRAMS REPORT.  Substituting tonight, Joe Tacopina.

JOE TACOPINA, GUEST HOST:  Hello, everyone.  I‘m Joe Tacopina in for Dan Abrams tonight. 

Coming up, they stand accused of stealing $600 million from their company.  Now could the two Tyco executives on trial get off because of infighting in the jury?  The jurors say they are irreparably compromised by poisonous bickering, but the judge won‘t buy it.  He sent them home for the weekend to cool off. 

And struggling to find a jury in the Scott Peterson trial, Mark Geragos calls the process painstaking.  But can a perfect jury ever be picked? 

And after 25 years of silence, a serial killer reemerges in Wichita, Kansas, with city residents on edge.  The police are trying to track down every lead before the killer strikes again.  We‘ll talk to a criminal profiler who worked on the case 25 years ago. 

But first, casts in the jury room at the Tyco trial.  It appears that jurors just can‘t get along.  Last week deliberations began in the case against Tyco executives Dennis Kozlowski and Mark Swartz, who were accused of stealing $600 million from the company.  The jury sent the judge three notes explaining their animosity yesterday, claiming one juror was not deliberating in good faith and creating—quote—“a poisonous atmosphere.”  And today a new note read, “This jury‘s ability to continue deliberations with an open mind is irreparably compromised.” 

CNBC‘s Bertha Coombs has been covering this story and the trial and filed this report a short time ago.

(BEGIN VIDEOTAPE)

BERTHA COOMBS, CNBC CORRESPONDENT:  Jury selection in the Tyco case began on September 29, and after six long months Judge Michael Obus is trying to do everything he can to avoid a mistrial in this case and get these jurors back on track as far as deliberations.  It was the jurors themselves this afternoon who said that they wanted to go home, think about it over the weekend, and start again on Monday. 

But before that, they had passed the judge yet another note.  This is the third note where they say that things are not going well, that there continues to be acrimony.  Although they said it really is not an issue of substance, but more an issue of personality.  The letter reads—quote—

“Let us be very clear.  This is not a hung jury based on unanimity” they said.

They said they simply feel that at this point they have ceased to be able to conduct good-faith deliberations in this case.  The defense has moved for a mistrial in the case.  They believe at this point that this jury has been poisoned.  The judge denied that, and the defense, as they left the courthouse this afternoon, said that they respect the judge and the jury‘s wishes to continue. 

STEPHEN KAUFMAN, DENNIS KOZLOWSKI‘S ATTY:  Monday will be the sixth month that they‘ve been in jury service and that‘s remarkable.  And they‘ve never been late, and they‘ve just been incredibly supportive of a system that—of their civic duty to be jurors.  It‘s just been extraordinary. 

CHARLES STILLMAN, MARK SWARTZ‘S ATTY:  Let them go ahead and you know do the best they can and we have to respect that.  I mean they were pulled out of their lives to come and do this and they‘re trying to do it.  So I have to have great respect for that.

COOMBS:  The judge did note in the courtroom that it had been brought to his attention that one of the jurors had made a hand signal.  One of the jurors had in fact flashed an OK sign this morning in the courtroom to the defense table.  But neither the defense nor the prosecution has asked the judge to remove that juror or speak to that juror at this point.  So at this point they will be back and going at it again on Monday morning—

Joe. 

(END VIDEOTAPE)

TACOPINA:  CNBC‘s Bertha Coombs, thank you.  You‘ve got to give the judge in this case, you‘ve got to give him credit for sticking to his guns and insisting that this jury try to get along.  But how do you get a jury so divided back on track?

Let me bring in my all-star legal team here—former New York State Supreme Court Justice Leslie Crocker Snyder...

LESLIE CROCKER SNYDER, RET. NY SUPREME COURT JUDGE:  Hi Joe.

TACOPINA:  ... criminal defense attorney—Hi Judge—criminal defense attorney Dino Lombardi...

UNIDENTIFIED MALE:  Hi Joe.

TACOPINA:  ... and former—hey Joe—Dino and former prosecutor Joe Episcopo.  Joe.

JOE EPISCOPO, FORMER PROSECUTOR:  Hey.

TACOPINA:  Hey.  That‘s it.  All right.  Let me start with you Judge Snyder.  I‘ve been before you.  You‘ve handle some of the most high profile cases in New York State and you‘ve dealt with jurors that have sometimes explosive reactions to others‘ opinions in the jury room.  What do you do with a jury like this?  Is there any way to get this jury back on track? 

CROCKER SNYDER:  Well Judge Obus is a very calm and reflective judge.  He‘s an excellent judge and I think he‘s doing exactly what he can do.  We don‘t really know.  I think if this weekend doesn‘t provide a sufficient cooling-off period and if they can‘t come back and actually get back to work, then, of course, there will be a hung jury/mistrial.  But it is possible that after some relaxation over the weekend, they‘ll come back, think again about the six months they‘ve put in, and not want to waste that and at least reach a partial verdict.  That‘s what we can hope for.  So, I think the judge is doing the right thing.  He has not yet given an Allen charge, which is also a possibility at some point. 

TACOPINA:  Yes.  But, listen, I mean the notes you‘re getting here, these are not...

CROCKER SNYDER:  They‘re not encouraging.

TACOPINA:  These are like one juror is vile and the other one doesn‘t want to be open-minded.  I mean these are strong, strong...

CROCKER SNYDER:  Yes, they‘re pretty bad notes, and they don‘t bode well, but you never know what can happen and the judge is not going to give up until he has to.  Because otherwise it‘s six months of the criminal justice system down the tubes.  That‘s a victory only for the defense.  I liked what they were mouthing there, but that‘s a bunch of baloney frankly.  I mean they want a mistrial. 

TACOPINA:  Absolutely.  And Joe you have to—as a former prosecutor, you have to agree with that.  This is—especially a six-month trial.  This is the prosecutor‘s worst nightmare, isn‘t it? 

EPISCOPO:  Well, it is and it isn‘t.  Listen, it‘s the United States government.  They‘ve got the money.  They‘ve got the time.  They‘re all being paid.  That‘s what they‘re supposed to do.  You accept what happens and you get another jury and try it again.  If you‘ve got 11 votes for guilt, what are you worried about? 

TACOPINA:  Yes, I know.  But, you know, they‘ve spent six months basically trying this case.  And this is a case that everyone you know thought was going to be a prosecutor‘s slam-dunk, unlike the case down the block in Martha Stewart, you know.  And these guys couldn‘t get a conviction on this evidence.  Now, we all know that it only takes one juror, which it looks like this case has sort of been a poster child for the notion that it only takes one juror to turn the jury on its ear.  But you know I mean the defense has to be thrilled with the notion that they‘re going to walk their clients out of this courtroom after six months of pretty substantial evidence, don‘t you think?

DINO LOMBARDI, CRIMINAL DEFENSE ATTORNEY:  They have to be.  I mean they probably would be satisfied with a mistrial.  I agree with Judge Snyder.  Clearly they like that idea.  They are of the mind, I believe that this one juror is a defense juror.  Although, I am struck by the language in one of the notes that seems to suggest that it‘s not necessarily that it‘s 11-1 in terms of the outcome on the verdict, but that it seems to be more of an attitudinal breakdown between one juror and the rest in the way they‘re deliberating.

So that might give Judge Obus some hope, and I agree with Judge Snyder that Judge Obus, who I have been before many times, is a calm, reflective judge.  He‘s got great temperament, hasn‘t given an Allen charge yet, which is the final step.  He may be gleaning from that note that these people may, after a break over the weekend—it‘s been a six-month trial, inordinate pressures on the jury and their lives during that period of time, that they may be able to get back to it and break through this attitudinal or style thing that is preventing them from a real substantive deliberation. 

(CROSSTALK)

CROCKER SNYDER:  ... as I...

UNIDENTIFIED MALE:  I‘m sorry.

CROCKER SNYDER:  ... think you just said, we don‘t really know how they‘re divided.  Because one of the notes seem to—appear to say that there really wasn‘t an agreement on guilt or innocence...

UNIDENTIFIED MALE:  Right.

CROCKER SNYDER:  ... end quote.  So we don‘t know that it‘s 11-1.  And that‘s a conclusion that we shouldn‘t reach so quickly.  One juror seems to be a real problem.  The other possibility, as I said earlier, maybe they‘ll come back and be able to agree on some counts and the court will take a partial verdict.  I don‘t know. 

TACOPINA:  Let‘s take a look, if we can, let‘s take a look at that first note.  The jury note number one, which was sent in at 4:00 p.m.

“The atmosphere in the jury room has turned poisonous.  The jury contends that one member has stopped deliberating in good faith.  Said juror believes that they are being persecuted.  Many incendiary accusations have been exchanged that we believe have compromised the fairness of the process.  The majority, here‘s the line, the majority of us believe we could reach a fair conclusion without the presence of this juror.”

To me I think it‘s clear it‘s one against 11, 11 for conviction, one for acquittal, because the next note that comes in at 4:20 in this case is a note that basically is in different pen.  Although it‘s signed by the foreperson, it‘s in different pen and there it is on the screen right now. 

“There is reason to believe that one or more jurors do not have an open mind as to the possibility of the defendants‘ innocence and that they refuse to recognize the right of at least one juror to - let‘s see - to have a good faith belief that the prosecution had not proved its case, that the defendants are guilty.  The disagreement has become so intensive that it has resulted in a very bad acrimony, which is expressed in too extreme accusations that are unfounded.  Perhaps this jury cannot continue.  What shall we do?

UNIDENTIFIED MALE:  Joe...

TACOPINA:  Leslie, I understand that that second note came from the juror, the one juror...

CROCKER SNYDER:  Right.

TACOPINA:  ... because it was in different pen. 

CROCKER SNYDER:  Right. 

TACOPINA:  And then there was a note afterwards saying you know that last note, by the way, Your Honor, is not the expression of the entire jury.  That‘s one juror‘s opinion. 

CROCKER SNYDER:  Well, you know again, we‘re speculating it‘s 11-1.  It could be 11-1 either direction on some counts.  It clearly is mostly it appears for conviction.  But one thing the prosecution can learn out of this, if it does result in a hung jury on most of the counts or any of the counts is to redefine their focus and present a much shorter, more focused case and win...

TACOPINA:  Right.

CROCKER SNYDER:  ... on a retrial.  So it‘s not all over for them.

TACOPINA:  Yes.  And Dino, before I get to you I want to follow up on that, because I think that was perhaps their Achilles‘ heel in this case.  Let me go back to Judge Snyder for a second because gee you can‘t really get a better guess to ask these type of questions to.

CROCKER SNYDER:  Thank you. 

TACOPINA:  Now that you have a situation like this, if the judge gives them an Allen charge or what we call—the lawyers call a dynamite charge, because it creates sort of an explosive reaction in the jury room...

CROCKER SNYDER:  Sometimes. 

TACOPINA:  Sometimes—if that happens and they come back and convict, I mean doesn‘t the defense have a great appeal, just right off the bat?

CROCKER SNYDER:  Well, you know as well as I do, Joe, that judges resort to Allen charges all the time when it‘s necessary, and after a very long trial, it‘s not unusual to have somewhat acrimonious deliberations, although these are getting pretty bad.  So I don‘t think it creates—if it‘s done carefully and it‘s done properly, in the proper language, which Judge Obus will certainly do, which means telling every juror in these added instructions to make certain you stick to your own conscientious belief, but you can do this as well as anyone or better. 

I don‘t have the exact language, of course, but you know you must exchange views, listen to each other, but hold on to your own conscientious held belief.  So if they do that and it‘s a good Allen charge, I don‘t think it will create a basis for appeal per se.  What‘s bad here is the record of all the notes, and whether all those notes can be overcome or the defense is going to be able to argue that the notes are simply vitiated any good thing in the Allen charge.  So there‘s added layers here.

TACOPINA:  OK.  Thank you, Judge Leslie Crocker Snyder, Dino Lombardi.  Joe Episcopo, you‘re going to stick around for our next segment.  And for more on the Tyco trial, log on to abramsreport.msnbc.com.  You can read all the notes the jury has sent to the judge.  That‘s on the abramsreport.msnbc.com.

Now, from one jury drama to another, this time the Scott Peterson case.  Jury selection has slowed to a crawl.  Mark Geragos calling the process painstaking.  Coming up, how critical is it to find the perfect jury? 

Plus, the Jayson Williams trial.  And the defense claims that the gun killed the former NBA chauffeur‘s—star chauffeur was defective, causing it to fire accidentally.  We‘ll talk to a reporter covering the trial. 

And...

(BEGIN VIDEO CLIP)

DAN ABRAMS, HOST, THE ABRAMS REPORT:  I‘m certain that people must come up to you and say I‘m a lawyer and here‘s what I think about your role. 

UNIDENTIFIED MALE:  We get a lot of support from the people in New York, and I‘ve heard more than once—a lot more than once that people have gone into the trial because of the show.

(END VIDEO CLIP)

TACOPINA:  A behind-the-scenes look at NBC‘s hit show “Law & Order.” 

How real is the law you see practiced on TV?  Dan has an exclusive look.

(COMMERCIAL BREAK)

TACOPINA:  Coming up, one-by-one potential jurors for the Scott Peterson murder trial are being interviewed and one-by-one they‘re being eliminated.  What‘s going on here?  Will enough jurors ever be picked?

(COMMERCIAL BREAK)

TACOPINA:  Now to the Scott Peterson trial.  As we‘ve just seen with the jury in the Tyco case, it takes just one juror to turn a courtroom on its ear.  Scott Peterson‘s attorney, Mark Geragos, has made it clear that he‘s unhappy with the jury selection process so far, even threatening to ask to have the trial moved a second time.  This is what Geragos said yesterday after a day of questioning prospective jurors. 

(BEGIN VIDEO CLIP)

MARK GERAGOS, SCOTT PETERSON‘S ATTORNEY:  My guess is—and the judge has announced each day where we are.  Right now we‘ve got 10 jurors in the pool after a week.  So at the current pace, do the math, it‘s going to take seven weeks, maybe longer.  I‘ve looked ahead and I don‘t know that we‘re going to keep up that pace based upon what I‘ve seen.  So we‘ll have to make adjustments, obviously. 

(END VIDEO CLIP)

TACOPINA:  Some adjustments?  Would that include moving the trial again?  Some would argue that picking a jury is the most important phase of a trial.  Will the slow pace of picking Peterson‘s jury affect the verdict?  And is there such a thing as a perfect jury? 

Joining me now, Richard Gabriel, a jury consultant and president of the American Society of Trial Consultants.  He has worked on high-profile trials such as the O.J. Simpson case, Heidi Fleiss and the Whitewater cases, and former prosecutor Joe Episcopo is still with us. 

Richard, let me start with you.  What are the ups and downs of having two separate injuries, one jury for the guilt and innocence phase and then one for the penalty phase? 

RICHARD GABRIEL, JURY CONSULTANT:  Well, Joe, it‘s extremely unusual.  I think there‘s only apparently three or four cases in the last 20 years that—where they‘ve had separate jurors for that.  So it‘s a very rare occurrence.  I think the defense would argue that it is especially appropriate in a case—a death penalty case as a guilt-phase juror, somebody who is qualified and has said that they would be willing to give the death penalty is more inclined to favor the prosecution‘s case.  And there‘s also an argument that says that if they‘ve heard all of the guilt phase, that colors how they would hear also the penalty phase issues, which, of course, is supposed to be a separate trial.  So the two separate injuries, although unusual, it brings up some interesting issues in jury selection. 

TACOPINA:  Joe, I mean you‘re a former prosecutor, but you do some defense work now.  Mark Geragos is complaining that the process of vetting the jury is unfair, that they must be death qualified and I don‘t care what anyone says.  That clearly indicates a juror who leans or slants toward the prosecution.  Do you think he has a point there?  I mean how does one get a fair jury when they first have to have jurors who are only willing to impose the death penalty?

EPISCOPO:  Well obviously, for the prosecution they at least know they‘re going to get a conservative jury, which is going to at least help with a guilt verdict, which is the most important thing to get.  And, you know, in this particular previous segment in the Tyco case, I believe it‘s a 72-year-old woman that put up the OK sign.  You would think from a prosecutor‘s point of view, you would get a conservative person.  But if you don‘t ask the right questions, you don‘t ask enough questions, look what you get stuck with.  So, you know, and his complaint, obviously I don‘t think he likes the things he‘s hearing.  I think that a lot of people have formed an opinion, and obviously it‘s showing, and that‘s why he‘s saying the things he‘s saying. 

TACOPINA:  Yes, you know, Richard, Joe brings up a great point.  I‘ve always said in this case that my biggest concern for the defense in the Peterson trial is the creep factor.  I don‘t even know what the evidence is of his guilt really.  I mean I think we know there‘s some circumstantial evidence.  But this guy comes across as such a low-ball skank.  I mean for the things he did, the way he conducted himself after the disappearance of his wife and for just his statements and conduct and some of the lies, perhaps, he‘s been caught in.  Richard, when you‘re assisting trial lawyers picking a jury, I mean what kind—what do you look for, like jurors from Mars or something?  How do you get jurors that are going to be—quote—unquote—“defense-favorable jurors?”

GABRIEL:  Well I‘m not sure you‘re looking for necessarily defense favorable jurors.  That would be ideal.  However, what you‘re truly trying to do is deselect the most horrific or guilt-prone jurors in the panel.  And quite frankly in this case, they‘re dealing with a double whammy.  They‘re dealing with jurors who have already concluded that Scott Peterson is guilty as a result of, as you‘ve listed, these conduct issues, and they‘ve also got to deselect all those jurors who are just more inclined to say boy, if I found him guilty I‘m not even willing to hear any mitigating evidence about penalty phase and I‘m going to give him the death penalty. 

So it‘s really about deselecting the most—the riskiest or the worst jurors and hopefully finding those jurors who are, number one, suspicious of the media, so that they don‘t agree with all this stuff they‘ve heard about conduct in the case.  And number two, really analytical jurors, who are going to scrutinize the evidence from the prosecution, hopefully pick it apart and not find a compelling circumstantial case. 

TACOPINA:  Hey Joe, Richard, let‘s look at this thing.  We have a full screen I think we can put up here that breaks down—look at this. 

Out of the 998 jury questionnaires that were filled out, there was supposed to be 1,000, but two jurors, I don‘t know, they begged out of it.  They didn‘t show up.  Out of the 998, over 700 were dismissed so far for either hardship or cause.  I mean that‘s even before we get down to the - whether the defense or prosecution accepts these people. 

Then approximately 20 were questioned by the judge and attorneys to date and 10, 10 are qualified for the jury pool.  I mean this is not a good sign for being able to get a jury sometime before like 2010, is it? 

GABRIEL:  Joe...

EPISCOPO:  And you know it‘s a good thing they‘re doing individual voir dire.  Talk about poisoning the jury pool.  Can you imagine every single person—I think he‘s guilty, I think he‘s guilty.  It‘s got to be having an effect not only on Geragos, but on his client. 

TACOPINA:  Yes.  And Richard, I mean what do you do?  I mean I don‘t think where—it‘s not like moving this case to San Francisco or San Diego or New York or something is going to change, I think, the perception of the potential jurors in this case. 

GABRIEL:  Well, I think the argument is that there is probably a stronger media market up in northern California and that southern California may not have as strong a position.  But the problem is, is that everybody has heard about this case.  I don‘t think anybody‘s naive enough to think that people haven‘t heard about it.  I think the excruciating process is actually an indication that things are probably being done correctly.  In other words, the judge is really excusing people who are even borderline about even presuming guilt, that if they‘ve expressed either an opinion one way or the other, the judge is not taking a chance.  And what it shows you is how difficult in a high-profile matter like this, where jurors have talked about it and have discussed the case and expressed opinions about it, how hard it is to get a fresh mind into the courtroom. 

TACOPINA:  Richard, I couldn‘t agree with you more.  Your insight has been just absolutely terrific.  Thank you very much, Richard Gabriel and Joe Episcopo, as always. 

Coming up, did the gun in Jayson Williams‘ hand misfire accidentally or did Williams mean to shoot the chauffeur?  It‘s at the heart of his manslaughter trial, and the defense team has been trying to prove the gun malfunctioned.  Court TV‘s Jean Casarez who‘s been covering the trial joins us next.

Plus, a killer no more than two decades ago as the BTK strangler for binding, torturing, and then killing his victims goes back (UNINTELLIGIBLE) terrorizing residents of Wichita, Kansas after years of inactivity.  Coming up, we‘ll talk to a criminal profiler who worked on the police case 25 years ago. 

(COMMERCIAL BREAK)

(NEWS BREAK)

ANNOUNCER:  This is THE ABRAMS REPORT.  Here again is Joe Tacopina.

TACOPINA:  Former NBA star Jayson Williams‘ defense team began presenting its case this week.  Williams faces up to 55 years in jail if convicted of aggravated manslaughter and related charges in the death of Costas Gus Christofi on February 14, 2002.  Christofi was killed by a shotgun blast in Williams‘s bedroom.  A prosecution witness claimed that Williams pulled the trigger.  The defense says the gun went off accidentally. 

Court TV‘s Jean Casarez joins me now with the latest from the case.  Jean, Dr. Michael Baden was the first defense witness.  What was he there to do? 

JEAN CASAREZ, COURT TV:  Well this has been quite a week and he was the first witness for the defense.  He said basically two strong things for the defense, two strong things.  First of all that the end of the gun was farther away from the victim, the limousine driver, than the prosecution has said.  Now what does that do? 

Well, if it‘s farther away, then maybe Jayson Williams didn‘t even see Gus Christofi, the limousine driver.  And if he didn‘t see him and even know he was in the room, maybe it wasn‘t recklessness.  It was just an accident.  And the second major point that Dr. Michael Baden made was that the trajectory of the gun, the angle of the gun when it went off.  There‘s been a lot of eyewitness testimony saying that the gun was open and Jayson Williams just sort of flipped it shut, sort of like the “Rifleman” TV series back in the ‘50‘s and ‘60‘s. 

Well when did it go off?  And Dr. Michael Baden is saying that it went off at a 30-degree angle, therefore, it wasn‘t even actually pointed at Gus Christofi.  What does that show?  It shows a lack of recklessness and once more, an accidental shooting. 

TACOPINA:  You know I guess it‘s back again to the—like in a lot of cases like this, a battle of the experts, where the prosecution‘s experts say one thing, the defense expert, who‘s equally as competent, will say something entirely different.  And I guess yesterday the defense called his firearms expert, Richard Ernest, and he offered an opinion that upset the prosecutors.  Tell us about it.

CASAREZ:  Right, Richard Ernest.  Now what he talked about were the internal workings of the gun, talking about all the dirt and the grime and the debris and the wood chips and the rust, and it was just...

(AUDIO GAP)

CASAREZ:  ... those are major points, because if it was so dirty, then possibly it accidentally discharged. 

(AUDIO GAP)

CASAREZ:  ... he said something that to a defense attorney it was a dream statement. 

(BEGIN VIDEO CLIP)

RICHARD ERNEST, FIREARMS EXPERT:  This particular shotgun mechanism, under those kind of conditions, the conditions that were found inside the interior of this shotgun, it‘s my opinion that this shotgun was basically an accident waiting to happen. 

UNIDENTIFIED MALE:  Objection, Your Honor.

(END VIDEO CLIP)

CASAREZ:  (UNINTELLIGIBLE) boy he objected so fast, the judge said to the jury you have to strike the conclusions in this trial, not a witness.

TACOPINA:  All right and lastly Jean, are there plans—I mean do we know if Jayson Williams plans of taking the stand in a case like this?

CASAREZ:  It‘s a question everybody is asking.  Everybody wants to know.  So many people say he has to in this trial.  In the defense opening Billy Martin told the jury, Jayson Williams will tell you.  If you listen to that literally, that was a promise to the jury.  A promise that they may have to keep. 

TACOPINA:  Jean Casarez from Court TV, thanks a lot. 

Coming up, out of the grizzly past, a serial killer springs back into action in Wichita, Kansas.  Anger and fear grips the city as people worry and wait for the killer‘s next move. 

And it‘s the longest running legal drama on TV.  What do the actors on “Law & Order” think about real lawyers?  Dan Abrams goes “Behind the Scenes” of the hit TV show.  That‘s coming up next. 

And don‘t forget, you can send an e-mail to abramsreport@msnbc.com.  Dan reads every e-mail—night—at the end of each show and tonight I‘ll take a crack myself.

(COMMERCIAL BREAK)

TACOPINA:  Investigators in Wichita, Kansas once again have their hands full with a 30-year-old serial murder case.  A suspect known as the “BTK Strangler”, for binding, torturing, and then killing his victims apparently sent a letter to a Wichita newspaper last week with information police say only the killer would know about a 1986 murder.  The letter contained a photocopy of the victim‘s license and pictures of her body.  Police believe this man is responsible for a string of homicides beginning in the 1970‘s, possibly eight murders in all.  Investigators say the letter is likely authentic and that the killer is still out there.  The once cold case puzzling police. 

(BEGIN VIDEO CLIP) 

KYLE SMITH, FBI SPOKESMAN:  The fact that he was silent for so long and suddenly he comes back up again, talking about a 1986 murder, it raises a lot of questions.  These people normally don‘t stop.  And the DNA technology is set up now that it probably would eventually identify him.  But for whatever reason he‘s chosen to communicate first, and we‘ll see what we can do.

(END VIDEO CLIP)

TACOPINA:  How has this man escaped Wichita police for over three decades?  My next guest has some insight on the mind of the “BTK” killer.  He helped police profile him years ago.  Dr. Howard Brodksy is a licensed clinical psychologist.  Thank you for joining us, Dr. Brodksy.  Let me ask you this.

DR. HOWARD BRODKSY, LICENSED CLINICAL PSYCHOLOGIST:  Thank you. 

TACOPINA:  What first crossed your mind when you began profiling this guy all those years ago? 

BRODKSY:  Right.  Well, my role was just a consultation in this, and I did see some evidence.  And the—I remember the phrase popped through my head, this guy has a tortured mind.  A fellow who carries this kind of a burden with him all these years, hinting to it in these letters.  This guy has a very tortured mind.  He‘s very uncomfortable with his own thoughts. 

TACOPINA:  You know, why do you think after 17 years he sends a letter to a newspaper now?  I mean what was—what do you think perhaps, if you could speculate, would cause that sort of sudden re-involvement, I guess, if you will?

BRODKSY:  Right.  Everyone is speculating about that.  It‘s—there‘s a clue here and a clue there, and everybody is trying to put it together.  Of course, a lot of people think that probably he was incarcerated for a period of time, and now that he‘s free he‘s going to continue to communicate with us.  There might be some other life-change event.  He might have returned to the city after working somewhere else for a long period of time, could be a recent divorce or something of that that‘s set him into motion.  And also, this has been going on for 30 years.  At this point he‘s an older guy, and we may well be facing the end of his life.  We might be facing a terminal disease. 

TACOPINA:  Do you think, you know I was reading all these reports about this, I was wondering if maybe the recent media attention to the serial killings in—you know, the D.C. area or Virginia with John Muhammad and Malvo perhaps sparked a flame or something, you know he missed the spotlight.  Do you think that the media attention sort of promotes someone as sick and as warped as this guy, or a woman, for that matter, to do this, to resurface?

BRODKSY:  Yes.  Probably is a guy, and he probably is very motivated by the publicity.  The publicity is very important to him.  I think he fills his head and he fills his needs with that publicity that he‘s getting, and that makes him more comfortable with himself.  He‘s more comfortable playing this cat and mouse game with the authorities than he is feeling as though he‘s you know done all these barbaric things in the past.

TACOPINA:  Doctor, you know you said that this serial killer is not like others.  He doesn‘t justify his killings by assigning blame to someone else.  Can you explain that for us?

BRODKSY:  Sure I can.  Yes, I don‘t see in this, because there‘s such randomness in his selection of victims, that he‘s got anything here except the need to shock.  And he‘s not going to have an explanation about a bad relationship made me do it or some other life circumstance made me do it.  He has no excuse.  He‘s got this blame squarely on his shoulders, and he has to get away from that and make himself feel comfortable.  And I think he involves himself in this world of getting publicity and shocking people as a way of turning himself further away from the feeling of responsibility for the offenses. 

TACOPINA:  I hear Dr. Brodksy that the community is really reacting strongly to all of this going out and I hear the locksmith business is up.  What do you hear from the community at large? 

BRODKSY:  Well the community is really reacting to this.  It is the topic of conversation.  And you know guys respond to it differently than the women do.  The guys are into kind of the problem-solving, let me figure this out, and the women are into being very frightened by it.  And they are going out.  They are picking up the pepper spray.  They are getting new locks on their doors, and arranging for security services.

TACOPINA:  Thank you very much Dr. Brodksy.  And Wichita police need your help.  If you have any information whatsoever on the “BTK” serial killer, please call 316-263-0138.  All phone calls are anonymous. 

And up next, how real is the law you see practiced on TV?  The first part of Dan Abrams‘ two-part series “Behind the Scenes” at the hit legal drama “Law & Order” is coming up next. 

(COMMERCIAL BREAK)

TACOPINA:  There have been a lot of legal dramas on television, but one in particular stands the test of time, and it stands out for its authenticity.  NBC‘s Emmy award-winning “Law & Order.”  Tonight the first part of an exclusive two-part series “”Behind the Scenes”” at the hit TV show.  Dan Abrams spent time on set with the cast and writers, and asked the tough question, how does “Law & Order” compare to the real world of law? 

(BEGIN VIDEOTAPE)

UNIDENTIFIED FEMALE:  Has the jury reached a verdict? 

UNIDENTIFIED FEMALE:  We have Your Honor.  As to the defendant, Terry Johnson, we find him guilty of murder in the first degree. 

(MUSIC)

UNIDENTIFIED MALE:  The stories, as we say, are ripped from the headlines. 

UNIDENTIFIED MALE:  It all comes down to a showdown.

UNIDENTIFIED MALE:  So it‘s intensely concentrated. 

UNIDENTIFIED MALE:  The best “Law & Orders” are the front half is a crime mystery and the back half is a moral mystery.

ABRAMS:  It‘s the longest running drama on television today.  More than just a show, it can be a window into our justice system.  Many would say what they know about the world of “Law & Order,” they‘ve learned from watching “Law & Order.”

UNIDENTIFIED MALE:  Mr. Mainer (ph), your client has multiple priors. 

He‘s not going anywhere.  Remand all three defendants.  Next.

UNIDENTIFIED MALE:  I think it‘s very realistic.  It‘s as realistic as any show that I have ever seen dealing with the subject.  More so. 

ABRAMS:  Bill Fordes, a former attorney, is a supervising producer and writer. 

Are the stories really ripped from the headlines?

UNIDENTIFIED MALE:  Yes.

ABRAMS:  I mean literally, figuratively. 

BILL FORDES, SUPERVISING PROD. “LAW & ORDER”:  Sometimes the minute a story breaks in the news, whether it‘s on your show or on the Internet, at 5:00 in the morning I know that some other producer/writer is trying to glom that story, because it‘s hot, it‘s interesting.  You literally rip it out, throw it in a box and it‘s then that the work begins of developing the story. 

UNIDENTIFIED MALE:  People‘s case is laughable.  They want you to ignore the fact that Lucy Dillon (ph) herself may have been dealing drugs.  They want to you forget the fact that no motive and no weapon should always leave us with no conviction. 

ABRAMS:  Many of the people here are lawyers.  How carefully are the scripts vetted for legal accuracy? 

FORDES:  Very, very.  They go through me.  They go through Richard Sweren, who‘s a former legal aide lawyer.  They go through a former New York State judge.  We all have our input. 

ABRAMS:  Has there ever been a time where there‘s something that just sort of glares at you as a lawyer and you say, oh, I can‘t believe I let go that one? 

FORDES:  We all make mistakes.  I mean, I‘ve missed things.  I caught a mistake we were filming 10 seconds ago.

UNIDENTIFIED FEMALE:  And no judge will issue us warrants on what we have. 

UNIDENTIFIED MALE:  We‘ll get around that.  A panel, an investigatory grand jury can issue warrants. 

FORDES:  I wrote it and didn‘t catch it until Sam said it.  I said wait a minute, grand juries don‘t issue warrants, they issue subpoena, and I just changed it on the spot. 

(MUSIC)

UNIDENTIFIED MALE:  Give the black man a chance to stand on his own legs.  Let him alone.  Your interference is doing him positive injury. 

ABRAMS:  You‘re the only lawyer amongst the cast.  Are there ever times when you are saying to the writers, hey, wait a sec, you know, you guys are lawyers, I know, but I‘m a lawyer, too, and I don‘t think someone would say this or that? 

FRED THOMPSON, “DISTRICT ATTORNEY ARTHUR BRANCH”:  Well, a little bit.  We have a chance to sit around the table.  They ask us to—invite us in to come and make comments just like that, if we want to.

ABRAMS:  But I would think you would have a unique perspective. 

THOMPSON:  Well, maybe a bit.  Like you say, I think most or all these writers are lawyers and they certainly know the system.  But every lawyer sees it from a different perspective. 

UNIDENTIFIED MALE:  I think we stick to reality as much as we possibly can.  But it‘s a TV drama.  Like, you know, when you know the drama needs to be elevated, you know you elevate the drama.  And that may not necessarily be realistic, but you know it‘s needed at times. 

RICHARD SWEREN, CO-EXEC. PRODUCER, “LAW & ORDER”:  The first 10 pages might track the real story, and then the 50 other pages of the script are just something that we‘ve concocted out of whole cloth. 

ELISABETH ROHM, “ADA SERENA SOUTHERLYN”:  Fondly on the set we‘ll refer to the Martha case or the Jackson case, the bones are there that you can say, OK, this—we could relate this story to this real-life case.  But it‘s not interesting dramatically to always tell the truth.  So we tell our truth. 

THOMPSON:  I think particularly this audience is a sophisticated one and they give you certain leeway.

FORDES:  I think the audience is much more sophisticated now than when the show started 13 ½ years ago.  The O.J. trial certainly helped.  It educated everybody in the country.  We don‘t have to explain what a motion to dismiss is or what a motion to suppress.  They‘ve had a year of law school now.

ABRAMS:  But wasn‘t it a year of law school that people now are thinking that the justice system doesn‘t work?

FORDES:  That doesn‘t matter to me.  I don‘t care what they think about the justice system.  I only write to what do I think they understand.  And now they understand at this level and it‘s wonderful for us. 

(MUSIC)

ABRAMS:  Do you think that the defense attorneys on this program...

UNIDENTIFIED MALE:  They all look as good as they did on the defenders. 

(LAUGHTER)

UNIDENTIFIED MALE:  Smack in the middle of my presentation to a room full of partners, I see my reflection in the window, not the suave (UNINTELLIGIBLE) devil you see in front of you, mind you, but a bony-butted -- you can imagine the rest. 

ABRAMS:  There is a level of disdain for defense attorneys in the public at large? 

UNIDENTIFIED MALE:  There is? 

ABRAMS:  Oh yes.  People think that defense attorneys are getting guilty people off all the time.  And in many ways your character and some of the other prosecutors on the program have a level of disdain for the games that the defense attorneys play. 

SAM WATERSTON, “EXECUTIVE ADA JACK MCCOY”:  I think it‘s natural for prosecutors to have, you know—to think mean thoughts about the competition.  But I think it‘s dismay if you‘re right, that the general public has disdain for defense attorneys.  I would have thought they would have been held in very high esteem, just in case you ever needed one.

(CROSSTALK)

UNIDENTIFIED MALE:  Steve Hat (ph) substituting for defendant Johnson. 

UNIDENTIFIED FEMALE:  Eureko Jessa (ph) for defendant Carton (ph) Your Honor.

ABRAMS:  As a former defense attorney, would you like to see the defense attorneys on the program become more heroic? 

UNIDENTIFIED MALE:  You know, the heroes of our show are, you know, the prosecutors and that‘s the way it has to be.  Defense lawyers can be heroes in some other show. 

(MUSIC)

UNIDENTIFIED MALE:  Thank you for coming. 

UNIDENTIFIED MALE:  Why wouldn‘t we?  The fact that you asked us here leads me to believe you‘re not all that confident. 

UNIDENTIFIED MALE:  Quite the opposite Mr. Hantz (ph).  We‘re very confident. 

UNIDENTIFIED FEMALE:  We‘re trying to keep your clients alive. 

UNIDENTIFIED MALE:  The fact is Danny Odom‘s ship is sinking, considering the time and the place in history, if your clients stay on board, they‘re looking at a lethal injection. 

ABRAMS:  I‘m certain that people must come up to you and say I‘m a lawyer and here‘s what I think about your role. 

WATERSTON:  We get a lot of support from the people in the law, and I‘ve heard more than once, a lot more than once, that people have gone into the law because of this show. 

(MUSIC)

ABRAMS:  Police officers must stop you on the street.  What do they say to you? 

JERRY ORBACH, “DETECTIVE LENNIE BRISCOE”:  Well, my favorite quote from the police is “keep making us look good,” which is a nice compliment.  They‘re very, very kind. 

ABRAMS:  Do they ever say, well, there‘s just one thing, though...

UNIDENTIFIED MALE:  Well a couple of things, yes.  I mean like little things, like one guy says you know you wear your badges too much.  They‘re like detectives don‘t wear their badges as often as you guys do.  But I think we stay close to the belt.  I mean we stay right in there, in the realm of reality.  Not to mention they actually enjoy watching me and Lennie banter with each other.

UNIDENTIFIED MALE:  Cops usually like the show.  Lawyers usually either love or hate the show.  They tend to be either real devotes and they understand the poetic license we take or they‘re nitpickers and they can‘t understand why we cited CPL 190, when it‘s really CPL 190 90 Sub 4 (ph). 

(MUSIC)

UNIDENTIFIED MALE:  People on bail.

UNIDENTIFIED FEMALE:  The defendants are seen on a video-tape outside of the victim‘s building holding her property at the time of her murder. 

UNIDENTIFIED FEMALE:  Judge, the tape is fuzzy at best. 

UNIDENTIFIED FEMALE:  Fuzzy or not, the deceased property was recovered from defendant Odom‘s apartment. 

ABRAMS:  Liz and I are old friends, so she often turns to me for legal...

(LAUGHTER)

ABRAMS:  ... counsel and advice.  And so...

UNIDENTIFIED FEMALE:  And mind readings. 

ABRAMS:  And so the question, of course is, is there anyone who can sort of provide you with the sort of legal insights that I can? 

UNIDENTIFIED FEMALE:  I really hate to say it, because it‘s too good for your ego.  But, yes, you‘ve been very helpful. 

ABRAMS:  (UNINTELLIGIBLE)

UNIDENTIFIED FEMALE:  This is ridiculous. 

ABRAMS:  All right...

(LAUGHTER)

UNIDENTIFIED FEMALE:  I mean I can‘t believe I‘m actually going to help you feel better about yourself. 

ABRAMS:  Yes.  Yes.  Thank you. 

(MUSIC)

(END VIDEOTAPE)

TACOPINA:  You can see part two of Dan Abrams “Behind the Scenes” at “Law & Order,” including an exclusive look at the cast rehearsing scenes from next week‘s show on THE ABRAMS REPORT next Monday at 6:00 p.m.  Eastern.  “Law & Order” airs Wednesdays on NBC.  Check your local listings. 

And coming up, she says she developed an eating disorder after her coach told her to lose 10 pounds.  A jury agreed and she won over $1 million in a lawsuit.  But you viewers had some different opinions.  “Your Rebuttal” up next. 

(COMMERCIAL BREAK)

TACOPINA:  Coming up, your e-mails.  Dan usually reads them.  Well tonight I‘m going to pick out a few that I thought were particularly insightful.  Stay with us.

(COMMERCIAL BREAK)

TACOPINA:  Welcome back.  It‘s time for “Your Rebuttal”.  Last night on the program, a female athlete sued her school district after graduation claiming her high school basketball coach asked her to lose 10 pounds which led to an eating disorder.  A jury awarded her $3 million but later a judge reduced that amount to 1.5 million because she refused treatment.  Plenty of outrage on this story, to say the least.

From Albany New York Tim Blaney writes, “She was awarded money for not taking personal responsibility for her own well being.  Do I get to sue people who were abusive to me in high school or even in adulthood?  And the best part is the young woman refused treatment after the fact.  What point does common sense get injected into our legal system and our everyday thinking?”

Buck from Ohio writes, “Her lawyers said the coach was said to have broken clipboards and slam lockers.  So what?  Every coach does it.  Coaches jobs are to be intense and keep their players focused.  As a wrestler things were way worse than this.  Complaining about 10 pounds is pathetic”, says Buck.

Well, Buck I agree.  In 1984 I was a New York State wrestling champion.  And getting to that level required me to wear glad bags, go in saunas, do whatever I had to do to reach my weight before each match, and it taught me discipline in my life.  Coach Steve Anderson (ph) has a lot to be—I have a lot to thank Coach Anderson (ph) about for that. 

And you know and we‘ve become such a litigious society where personal responsibility is replaced by finding someone else to blame.  And when will it ever end?  This case is a poster child for this. 

Send your e-mails to the abramsreport—one word -- @msnbc.com.  Dan reads all your e-mails.  He even reads some on the air. 

Coming up next, “HARDBALL”, a special report, “America‘s Wounded Sons and Daughters”.  And at 9:00 p.m. Eastern time a special encore presentation of “The Tech Summit”...

END

 

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