updated 3/31/2004 12:35:16 PM ET 2004-03-31T17:35:16

Guests:  Mariane Pearl, Robert Kelner, Dan Webb, Tony West, Catherine Crier, Gerald Lefcourt, Pamela Stuart, William Fallon

ANNOUNCER:  Now THE ABRAMS REPORT.  Here is Dan Abrams.

DAN ABRAMS, HOST:  Hi everyone.  “Wall Street Journal” reporter Daniel Pearl, targeted, kidnapped and killed by terrorists in Pakistan because he was an American.  Now his widow says she and her son should have a right to collect from the 9/11 Compensation Fund set up by Congress.  She joins us. 

Former terror czar Richard Clarke and national security adviser Condoleezza Rice don‘t tell the same story about what happened leading up to and immediately after 9/11 and now both will soon have sworn testimony before the 9/11 commission.  Some in Congress are throwing around the “P” word—should there be criminal perjury charges? 

And the Michael Jackson grand jury.  Everyone is wondering when Michael Jackson‘s accuser will testify.  We ask—how do you prepare a child to go before 19 strangers and describe alleged sexual abuse?  We‘ll talk to someone who has done it many times before.

But first, remember the tragic story of “Wall Street Journal” reporter Danny Pearl?  Two years ago he traveled to Pakistan to work on a story about a Muslim fundamentalist leader.  He thought he was on his way to an interview when he was kidnapped by Islamic terrorists in January of 2002.  Day after day there were appeals for his release, but to no avail.  Danny Pearl murdered.

Officials believe he was beheaded by Khalid Shaikh Mohammed (ph), once al Qaeda‘s top operational commander and the alleged mastermind of the September 11 hijackings who was captured by U.S. officials last year.  Now Danny‘s wife, Mariane Pearl, is fighting for compensation from the same federal fund benefiting relatives of victims killed on September 11.  Mariane Pearl‘s initial claim was denied, but she and her attorney are now asking Congress to grant eligibility for compensation to her and her 2-year-old son Adam. 

Joining me now is Daniel Pearl‘s widow, Mariane Pearl and her attorney Robert Kelner.  Thank you both very much...

(CROSSTALK)

ABRAMS:  ... for coming on the program. 

UNIDENTIFIED MALE:  Good evening. 

ABRAMS:  Before we talk about this stuff and about the Victims Compensation Fund, Ms. Pearl, I have not had an opportunity to talk to you about this, so let me just ask you, you know, how are you doing?  How is your son doing?  How has life been for you or I should ask you I guess how difficult life has been for you in the last couple of years?

MARIANE PEARL, DANIEL PEARL‘S WIDOW:  Yes, it has been difficult.  But we‘re in good health.  Adam is a fun little boy. He‘s 21 months old now.  He‘s a very nice kid.  I love him obviously, and I‘ve written a book so that you know it was good—it was a difficult endeavor but it was a positive one, and now I guess I‘m trying to think about our future. 

ABRAMS:  Let me ask you about this, first of all let me just say I‘m thrilled to hear that.  I—you know I don‘t know you, but I think about you and...

PEARL:  Thank you very much...

ABRAMS:  ... I think about this case a lot...

PEARL:  I appreciate...

ABRAMS:  ... and it just boils my blood when I think about those pictures and anyway, let me move on to the issue at hand and that is about the compensation fund.  This fund, as you know, was not designed for this kind of incident.  In fact, look, you know this, but just so I let my viewers in on this, the 9/11 Fund was designed specifically for individuals harmed at the World Trade Center, Pentagon, or in Shanksville, Pennsylvania as an immediate result of the attacks, personal representatives of deceased individuals aboard the hijacked planes, personal representatives for individual who died at the World Trade Center, again Pentagon or Shanksville, Pennsylvania as an immediate result of the attack.  So there is no sort of purely legal argument as to how you fit into that, is there?

PEARL:  Well legally I‘m going to let Bob who has been helping me so much, talk to you about it, but to—for my own standpoint I think everything is and has been a matter of justice.  So to me, I mean I knew for sure that the people who killed Danny were the same people with the same intention that those who committed the 9/11 attacks and then it was confirmed afterwards that it was actually the same people physically.  So to me there was no question that it was the same story I was going to tell my son than the people who had relatives that died in 9/11. 

It didn‘t have a monetary or financial component when I thought about it and then after a year or two years of living in New York and trying to think about the future and also the financial future obviously because Danny was the main income-earner in our family.  My friend Bob (UNINTELLIGIBLE) helped, a lawyer, said you know you need to take care of that too and that‘s when things came together.  And I know legally it‘s not exactly that, but then there‘s no difference for me in terms of the story I‘m going to have to tell between Adam and the kids who have lost a father at the World Trade Center and it‘s the same people, same objective.

ABRAMS:  You‘re right.  I probably should have asked that question to your attorney.  So let me bring in your attorney.  Mr. Kelner, all right, as a legal matter, you must have known that the initial claim was going to be denied, right? 

ROBERT KELNER, MARIANE PEARL‘S ATTORNEY:  There is absolutely no question that the statute specifically provides that the events take place on 9/11.  What we have though is a country that has not turned its backs on victims of al Qaeda terrorism and the extreme similarity both morally and I think legally between the Pearl case and the 9/11 situation is that al Qaeda targeted American symbols.  The World Trade Center was a symbol of America.  Danny Pearl worked for “The Wall Street Journal.”  There could be no greater symbol of America and capitalism than “The Wall Street Journal”, and there is no question in my mind that if Danny had come from any other country in the world, he would be alive today.  So the issue is, did the intent of the statute provide that an al Qaeda victim of terrorism killed because they were American symbols and for no other reason, should that kind of person be entitled to the protection of the Victim Compensation Fund?

ABRAMS:  As a person, I sympathize with your position and for me to somehow take a position that‘s going to deny Mariane Pearl anything makes me uncomfortable.  But let me ask you a legal question Mr. Kelner.  How do you distinguish this from, for example, the embassy bombings from ‘98?  The first World Trade Center also the work of al Qaeda.  Americans killed by al Qaeda terrorists overseas in other bombings, for example, in Europe or other places.  It just seems that the floodgates are open if you allow this one in. 

KELNER:  No, absolutely—first of all, we have made an application to the Victim Compensation Fund prior to the date of the expiration of the fund.  This is one application.  I absolutely feel tremendous sympathy to the other victims, but this—the only difference between Danny Pearl‘s death and the death of all of the people in the World Trade Center was the date and...

ABRAMS:  ... the same thing applies to the embassy bombings and the...

KELNER:  I think they were less...

ABRAMS:  ... first World Trade Center.

KELNER:  No, they were less specific.  They were less targeted killings than...

ABRAMS:  Wait...

KELNER:  ... this particular situation. 

ABRAMS:  ... the embassy bombings were clearly an attack on America.  I mean they targeted U.S. embassies in an effort to attack American symbols.

KELNER:  I think that it was less of a symbolic act than this specific act.  And I‘m certainly not taking the position that the victim‘s families should not be taken care of.  I think the society has to have compassion for people that are killed solely because they are Americans by al Qaeda.  One of the issues recently is whether everything has been done and will be done to protect us from al Qaeda in the future.  There‘s no question that this is a special case of targeting an individual.  It‘s exactly the same conceptually as the World Trade Center victims...

ABRAMS:  Very quickly, what about soldiers ambushed in Afghanistan? 

KELNER:  I think that that is a different situation.  It is much less of a targeting based on the fact that a person is an American.  This was almost a sacrifice...

ABRAMS:  (UNINTELLIGIBLE)

KELNER:  ... literally because this person was an American...

ABRAMS:  Yes.

KELNER:  ... and because he was a “Wall Street Journal” reporter.  And by the way, we are attempting at this point to get a special bill through Congress that will cover Mariane. 

ABRAMS:  Yes.

KELNER:  I have no quarrel with Kenneth Feinberg denying the claim. 

He‘s following the law and we have no quarrel with that.

ABRAMS:  Yes, I understand.  Yes.  No, look, and I appreciate what you‘re doing and Mariane Pearl I just can‘t tell you...

(CROSSTALK)

ABRAMS:  ... how much my heart goes out to you.  And look, in a human perspective, I hope you get everything that you‘re asking for.  I really do.

PEARL:  Thank you very much.

ABRAMS:  So good luck to both of you.  Mariane Pearl and Robert Kelner thanks a lot for coming on.

KELNER:  Thank you very much for having us.

ABRAMS:  Coming up, the White House finally agrees to allow national security adviser Condoleezza Rice to testify under oath before the 9/11 commission.  So once she testifies under oath and former terror czar Richard Clarke testifies under oath and they say very different things, could, might, one of them be charged with perjury?

And the turmoil in the Tyco trial—the defense still complaining about the holdout juror.  They‘ve filed several motions for a mistrial.  But isn‘t the prosecution really getting the raw deal with the jury appearing to be 11-1 in favor of conviction?

Plus, day two of the Michael Jackson grand jury with the accuser reportedly getting ready to testify.  How do prosecutors prepare a child, an alleged victim of sexual molestation to testify?      

(COMMERCIAL BREAK)

ABRAMS:  Coming up, the Tyco trial.  Is the holdout juror subverting justice? 

Plus, what prosecutors might be doing to prepare Michael Jackson‘s accuser to testify before the grand jury.  It‘s coming up.

(COMMERCIAL BREAK)

ABRAMS:  National security adviser Condoleezza Rice finally agrees to testify publicly and under oath before the 9/11 commission.  Seemingly bowing to mounting pressure this comes on the heels of Richard Clarke‘s scathing review of the Bush administration‘s handling of the war on terror. 

(BEGIN VIDEO CLIP)

RICHARD CLARKE, FMR. NAT‘L SECURITY COUNCIL MEMBER:  I believe the Bush administration in the first eight months considered terrorism an important issue, but not an urgent issue.  But although I continued to say it was an urgent problem, I don‘t think it was ever treated that way. 

(END VIDEO CLIP)

ABRAMS:  But the national security adviser has been hitting the media circuit disputing Clarke‘s claims.  In an interview on CBS “60 Minutes” she says—quote—“But we were working on terrorism from the time that we came here.  For the first eight months of the Bush administration there was certainly a tremendous understanding of the great dangers of terrorism.  Of course it was an urgent problem.”

While that is sort of analysis if you could attribute that to a different analyses, under oath Richard Clarke testified about some specifics, that he wasn‘t allowed to meet with Dr. Rice and other high-level members, that he was forced to meet with their deputies.  He claims he offered a comprehensive strategy to deal with al Qaeda that wasn‘t implemented until after 9/11.

Senator majority leader Bill Frist was so angry about Clarke‘s testimony that he seems to be suggesting perjury charges could be a possibility.

(BEGIN VIDEO CLIP)

SEN. BILL FRIST (R-TN), SENATE MAJORITY LEADER:  It is one thing for Mr. Clarke to dissemble in front of the media, in front of the press, but if he lied under oath to the United States Congress, it‘s a far, far more serious matter. 

(END VIDEO CLIP)

ABRAMS:  And Rice will likely dispute much of Clarke‘s testimony and say, for example that specific conversations never occurred.  But somebody on some of these issues is either wrong or lying.  So now, they‘ll have both been under oath.  Could it mean Clarke or Dr. Rice could face perjury charges? 

Let‘s ask our legal team.  Dan Webb is the former federal prosecutor who was the special prosecutor on the John Poindexter/Iran Contra perjury case.  Poindexter was convicted of perjury later.  That was overturned on appeal.  And Tony West, a former federal prosecutor who also worked under former Attorney General Janet Reno in the Clinton administration.  I say also, Mr. Webb, you didn‘t work for—under Janet Reno, did you? 

DAN WEBB, FORMER FEDERAL PROSECUTOR:  I did not. 

ABRAMS:  OK.  So, I should have just said and Tony West who worked under Janet Reno.  OK.  Mr. Webb, let me start with you.  Look, it sounds like Bill Frist is threatening Clarke with possible perjury charges, does it not? 

WEBB:  Well, I guess it does.  I mean look, any time a witness goes before a congressional commission like this one and is testifying under oath, there‘s always the possibility of perjury.  Perjury is committed when a person intentionally makes a false statement under oath.  Here, though, it looks like the disagreement is in many ways a matter of opinion.  If somebody, for example, if Mr. Clarke were to say that he thinks the Bush administration was soft on terrorism...

ABRAMS:  Right.

WEBB:  ... or not as aggressive as they should have been and Ms. Rice disagrees with that, there‘s no way that could ever become a perjury prosecution...

ABRAMS:  No, understood.  But when they start talking specifics, did this meeting occur?  Was this person in the room?  Did you have verification of this or that?  I mean it starts to look like they might be able to make a case.  I don‘t think they‘re going to, but, boy, it sure sounds like Bill Frist is talking about it. 

WEBB:  Dan, I agree with you.  Look, there‘s no question that if you have two people that go before the same body and one says that the car was red and the other says the car was blue, if you can prove that one of them is lying, you‘ll have a perjury case.  It‘s just a matter—if you take, for example, if Ms. Rice states that Mr. Clarke was not in a certain meeting and he says he was and there‘s five witnesses that agree with her, he may be subject to a perjury prosecution. 

ABRAMS:  Mr. Webb, what do you make of all this?

UNIDENTIFIED MALE:  I‘m sorry.  I didn‘t hear you...

ABRAMS:  I said what do you make of all this?  I mean...

UNIDENTIFIED MALE:  Well...

ABRAMS:  ... what do you make of the possibility that either Clarke or...

(CROSSTALK)

ABRAMS:  ... I can‘t believe that Condoleezza Rice would ever be charged with perjury...

TONY WEST, FORMER FEDERAL PROSECUTOR:  Well, if she tells the truth, she won‘t be obviously.  I mean we‘re going to see what happens, which is why it‘s such a good idea to have her testifying under oath now.  I mean in some ways this falls under the category of be careful what you wish for, because you might just get it.  For weeks she said that she wants to testify, but the White House wouldn‘t let her.  Now she‘ll be able to do that and we‘re going to be able to see what kinds of inconsistencies there are. 

There are inconsistencies in dates and whether or not there were certain meetings.  And I think one of the really interesting things is what do the documents tell us.  We know that the commission has a number of documents and what do the documents tell us about either of these individual‘s testimony.  That will go a long way to determining who‘s telling the truth or whether it is, as Mr. Webb has said, just a matter of difference of opinion. 

ABRAMS:  Lee Hamilton is the vice chair the 9/11 commission and here‘s what he said about the issue of putting them both under oath. 

(BEGIN VIDEO CLIP)

LEE HAMILTON, VICE CHAIR, 9/11 COMMISSION:  When you put a witness under oath, that doesn‘t mean you think the witness is going to lie to you.  But it certainly does not mean that the commission is thinking that the witness, whomever he or she may be, is not going to tell the truth. 

(END VIDEO CLIP)

ABRAMS:  And yet, Mr. Webb, the 9/11 commission is probably going to come up with findings that say, for example, either Clarke‘s testimony makes more sense, or Rice‘s testimony makes more sense, and once that report comes out, does that mean that one of them could or might likely be charged with perjury as a result of it? 

WEBB:  You know not necessarily, Dan.  I mean look, sometimes two witnesses will disagree about what happened and one person could honestly have a misrecollection.  In order to convict someone for perjury, you have to have evidence that they intentionally made a false statement...

ABRAMS:  But wait a sec...

(CROSSTALK)

ABRAMS:  ... let‘s talk about some of the motives that are being attributed to Mr. Clarke, for example.  Profiteering, which would essentially mean that he made up stories in an effort to sell books that he intentionally put the timing of the book at the time he was going to testify in the 9/11 commission.  It sounds like the Republicans in the White House are saying, this guy is a liar, it‘s not just a misinterpretation. 

WEBB:  No, Dan, I‘m—the point is, if there‘s actually evidence that Mr. Clarke lied, then he could be indicted for perjury, but they have to prove he intentionally did it and that he did not make a mistake.  Does Mr.  Clarke have a motive to fabricate?  I think it‘s pretty clear from what I read in public accounts that he probably does have a motive to fabricate.  I, for one, am very suspicious on one day he says X and the next day he says Y.  He praises the Bush administration one day.  The next day he says...

(CROSSTALK)

WEBB:  ... that they‘re doing awful things...

(CROSSTALK)

ABRAMS:  Mr. West, you get the final word on that.  Go ahead.

WEST:  It‘s got to be more than that.  I mean we can even see on one day the president opposed the creation of the 9/11 commission, on the next day he‘s for it.  That doesn‘t mean that he‘s lying.  What I think you have to look at is what will the documents tell us.  These two witnesses are going to have different stories more than likely.  That‘s not going to be enough.  But what do the documents tell us about these meetings.  Richard Clarke has referenced a number of e-mails that were between the two.  Let‘s see what those e-mails say. 

ABRAMS:  Yes.  All right, well we shall see and look, I think you‘re both right that in the end it‘s going to be a very tough case to make, but when I hear Bill Frist make those sort of threats, you know I think it‘s time to get the experts on, which is what we did.  Dan Webb and Tony West, thanks a lot.

WEST:  Great to be with you Dan.  Thanks.

WEBB:  Thanks Dan.

ABRAMS:  Coming up, the Tyco defense team wants a mistrial over media coverage of the holdout juror.  Wait a minute—shouldn‘t the prosecution be complaining over a juror who appears to be giving hand signs to the defense and some say refuses to deliberate fairly with the other 11 jurors who appear to want a conviction.

Don‘t forget your take on the show e-mails abramsreport@msnbc.com.  I will respond at the end of the show.

(COMMERCIAL BREAK)

(NEWS BREAK)

ANNOUNCER:  This is THE ABRAMS REPORT.  Here again is Dan Abrams.

ABRAMS:  Welcome back.  The troubled jury in the Tyco case continued deliberations today despite new efforts by the defense to get the judge to declare a mistrial.  Ex-Tyco execs Dennis Kozlowski and Mark Swartz accused of stealing $600 million from the company.  They each face up to 30 years in prison.  The trial has dragged on for six months.  The defense has asked the judge to declare a mistrial at least five times since last Thursday.

First, they pointed to notes sent from the jury indicating they thought one juror‘s ability to deliberate with an open mind had been—quote—“irreparably compromised.”  Monday, the defense argued that news reports that named juror number four, who is believed to be the one juror holding out for an acquittal, might put pressure on her to abandon her belief that the prosecution had not proved its case. 

And today, the defense claimed anonymous comments in Internet chat rooms about juror number four could prevent the jury from reaching a fair verdict.  What about the prosecution?  The juror at the center of all this controversy could single handedly ruin this case.  Why is it only the defense that‘s complaining, in particular when you‘re talking about someone who is alleged to have made hand signals to the defendant? 

Let me bring in my legal team now.  Former federal prosecutor Pamela Stuart, who has prosecuted white-collar cases like this during her nearly nine years at the Justice Department.  Famed criminal defense attorney Gerald Lefcourt, who has handled many white-collar cases, and Court TV anchor and former judge Catherine Crier.

All right, so Catherine, everyone is talking about oh, the defense.  They want a mistrial.  Should they grant a mistrial?  Shouldn‘t they grant a mistrial?  Why isn‘t anyone talking about the fact that this one juror who may be hand signaling to the defense who some say has been unwilling to deliberate from day one is effectively subverting justice? 

CATHERINE CRIER, COURT TV ANCHOR:  Well the state, absolutely and if you buy that notion the judge said he queried her and feels that she could go ahead and deliberate and that‘s why this has continued on.  But the state figures the worst case is a mistrial.  The best case is she changes her mind because 11 people in there, at least we‘re understanding it may be 11 for conviction, aren‘t going to move to her side of the fence.

ABRAMS:  Yes.

CRIER:  So the downside for the state is the mistrial and they go again. 

ABRAMS:  Here‘s what one of the alternate jurors had to say about what an open mind this juror number four actually had.

(BEGIN VIDEO CLIP)

SIMON CUESTA, ALTERNATE JUROR IN TYCO CASE:  She kept shaking her head, you know to everything they had to say and it was just for the defense.  When the prosecution came up, she did not do the same thing.

(END VIDEO CLIP)

ABRAMS:  Gerry, are you disturbed by that? 

GERALD LEFCOURT, CRIMINAL DEFENSE ATTORNEY:  I‘m disturbed by the last comment.  I‘d like to know how he knows what she‘s thinking when she‘s nodding her head.  That‘s pretty unusual.  We have a jury system in this nation that requires, particularly in New York State, 12 jurors to reach a unanimous verdict.  Early on in these deliberations there were notes from the jury that focused on the key issue the defense was raising, whether there was criminal intent. 

They had several days of fairly quiet deliberations and then all of a sudden, last Thursday, the poisonous jury note.  Here‘s somebody who obviously has a strong view.  She is apparently a retired lawyer, and she knows something about law and intent.  And now we have the world browbeating her, front page of newspapers, judge in secret, everybody after her to get her to change her mind.  Is this the kind of jury system that we want? 

ABRAMS:  So Gerry, you think that they should have declared a mistrial?  You think the judge...

LEFCOURT:  Absolutely. 

ABRAMS:  ... should have declared a mistrial.

LEFCOURT:  I don‘t think, Dan, that we ought to have juror‘s names on the front page of a newspaper...

ABRAMS:  But that‘s a separate question.  I mean...

LEFCOURT:  No, that‘s pressure...

ABRAMS:  ... that‘s a media question. 

(CROSSTALK)

LEFCOURT:  No, it‘s not a media question.  It‘s pressure and intimidation being placed on one person.  She will eventually change her mind at the rate we‘re going with all the pressure we are putting on her. 

CRIER:  And you know...

LEFCOURT:  That‘s not what we want in a jury.

CRIER:  ... that‘s going to be an appellate issue.  It‘s going straight up on appeal if that‘s the case.  If these guys are convicted...

LEFCOURT:  That‘s right.

CRIER:  ... and it will be a very interesting issue and it may get it be reversed.

LEFCOURT:  Absolutely.  So why are we doing this?  Is that because we‘ve spent six months on this trial that God it has to end...

ABRAMS:  Gerry, you‘re not disturbed by the fact that if it‘s true that she gave hand signals to the defendants saying hey it‘s OK...

(CROSSTALK)

ABRAMS:  It‘s OK.  Everything is good...

LEFCOURT:  Look...

ABRAMS:  ... that‘s very disturbing.

LEFCOURT:  Dan, here‘s what‘s going on.

ABRAMS:  And that...

LEFCOURT:  The hand signals...

UNIDENTIFIED FEMALE:  Here‘s what‘s going on...

ABRAMS:  Let me let Gerry respond...

UNIDENTIFIED FEMALE:  ... the prosecutors...

LEFCOURT:  ... five days...

ABRAMS:  Let me let Gerry respond.

LEFCOURT:  ... five days into the deliberations.  That‘s when the hand signal...

ABRAMS:  So what?

LEFCOURT:  ... came.  Not before.  Well it‘s after jurors are sending out notes about how poisonous it is and how she won‘t deliberate with them.  She expressed a view, I feel, you know just from getting a sense, they disagree with it, so they‘re on her.  And when she comes out under this great pressure, she gives the OK sign...

ABRAMS:  ... Gerry, you criticized the...

(CROSSTALK)

ABRAMS:  ... alternate juror saying...

(CROSSTALK)

ABRAMS:  ... how does he know that she was nodding...

(CROSSTALK)

ABRAMS:  Wait...

(CROSSTALK)

LEFCOURT:  ... with a lot of people screaming at her Dan...

ABRAMS:  Gerry, Gerry...

LEFCOURT:  ... I wonder what you would do.

ABRAMS:  Gerry you say how does the alternate juror know what she was thinking when she was nodding and yet you know what she was thinking when she‘s giving...

LEFCOURT:  No...

ABRAMS:  ... the OK sign.

LEFCOURT:  No, but Dan, you‘re making it sound like she‘s giving hand signals during the trial.  This is after the trial is over...

ABRAMS:  All right.

LEFCOURT:  This is after she‘s heard the prosecution and heard the defense summations...

ABRAMS:  Pamela...

LEFCOURT:  ... and she‘s in five days of deliberation. 

ABRAMS:  Pamela Stuart, what do you make of it? 

PAMELA STUART, FORMER FEDERAL PROSECUTOR:  I think this is a prosecutor‘s nightmare.  They do not want to retry this case, and a mistrial is a win for the defense.  But I think Gerry is absolutely wrong when he thinks that all this pressure is going to cause this one juror to cave.  After all, she was the one who has held up under all these days of pressure, apparently, and she told the judge she could deliberate, she could be fair and impartial, and that‘s all the judge needs to hear.  Because he wants to protect the record to show that she is able to deliberate.  They...

LEFCOURT:  Well I hope you‘re right.  I hope that if she has come to a view of the evidence that she believes in and it‘s a conscientiously held view, I hope she doesn‘t bend just because the world is screaming at her in a million different ways. 

(CROSSTALK)

STUART:  No, and that would be a violation of her oath as a juror.

(CROSSTALK)

ABRAMS:  ... Catherine.

CRIER:  But also remember Dan, that she might—they might be in agreement on some of the issues and the judge may be thinking to himself, gee if they‘ll come back and they will have disposed of smaller lesser included that we want to get out of the way and there will only be X number of charges left, that might be something that he‘s also looking to if he thinks he‘s going to have to retry this case...

ABRAMS:  Let me read this, a note from the jurors.  This is the one from the jurors, not from—apparently from the one juror.  Came in at 4:00 p.m. on Thursday.  The atmosphere in the jury room has turned poisonous.  The jury contends that one member has stopped deliberating in good faith.  Said juror believes they are being persecuted.  Many incendiary accusations have been exchanged that we believe have compromised the fairness of the process.  The majority of us believe we could reach a fair conclusion without the presence of this juror. 

But Pamela Stuart, you can‘t get rid of that juror, can you, not now that the judge has dismissed the alternates. 

STUART:  Well not only that, but the judge has made a great effort to get it on the record that she will deliberate, that she is able to do that.  And sometimes in the course of the give and take of jury deliberations people do get their back up and they don‘t want to talk for a while.  But ultimately, the group will, I think, come to a conclusion one way or another.

ABRAMS:  Catherine, why dismiss the alternates?

CRIER:  Well I sort of thought that was a mistake because sometimes you actually will even include the alternates...

STUART:  No, no...

CRIER:  ... in deliberation.  It‘s too bad because they were coming out and talking which I also think is one of those points that the defense would like to put into the appellate record.  Unfortunately, that‘s...

STUART:  Well, but there‘s...

CRIER:  ... the judge did.

STUART:  ... there‘s no evidence that any of the members of the jury read or heard any of...

UNIDENTIFIED MALE:  Yes...

STUART:  ... these comments...

(CROSSTALK)

STUART:  ... by the others. 

CRIER:  True.

ABRAMS:  And that‘s the point, Gerry, is that to say that she‘s being pressured presumes that she‘s violating her oath and is actually reading the newspaper, correct? 

LEFCOURT:  Well you know I assume that when jurors go home that they can‘t help it if you‘re on the top...

ABRAMS:  Gerry...

LEFCOURT:  ... of every news show. 

ABRAMS:  ... the jurors don‘t abide by the rules? 

(LAUGHTER)

LEFCOURT:  Yes, you know often...

ABRAMS:  Come on. 

LEFCOURT:  ... you know it‘s unfortunate, but if you are on the front page of every newspaper in the area in which you live and the top story on the news and your picture is portrayed you know and everything about you is disclosed, how is that not going to come home somehow...

CRIER:  Of course...

LEFCOURT:  ... to that juror? 

CRIER:  Of course, listening to the personality profiles, it may be that she likes this very much.

ABRAMS:  And maybe...

(CROSSTALK)

STUART:  Yes and...

ABRAMS:  ... maybe she‘ll pull a “12 Angry Men” here and convince all the other jurors to change their minds by the end...

LEFCOURT:  That would be shocking.

STUART:  Well...

ABRAMS:  Pamela Stuart, Gerry Lefcourt, and Catherine Crier, thanks a lot.

CRIER:  You bet.

STUART:  You‘re welcome.

LEFCOURT:  You‘re welcome.

ABRAMS:  Coming up, Michael Jackson arrives on Capitol Hill to meet with lawmakers.  His accuser reportedly getting ready to testify before a grand jury determining whether to indict him on molestation charges.  Up next, how prosecutors might be preparing Jackson‘s accuser for his testimony. 

Plus, we‘ll get an update on that bizarre crime from last year involving a pizza deliveryman allegedly forced to rob a bank with a bomb around his neck and then died when the bomb went off. 

(COMMERCIAL BREAK)

ABRAMS:  Michael Jackson is in Washington today meeting privately with some members of Congress on Capitol Hill.  This video shot just a few minutes ago.  Tomorrow, he‘s expected at a Capitol Hill press conference on Aids with Representative Sheila Jackson Lee and African dignitaries. 

Meanwhile, 3,000 miles away in Santa Barbara, the grand jury continues to hear testimony that will help the 19 grand jurors decide whether to indict Jackson on molestation charges.  The big question—when will Jackson‘s accuser take the stand?  There were rumors he appeared before the grand jury today.  No one knows for sure. 

NBC‘s Rehema Ellis joins us now from Santa Barbara with the latest. 

Hi Rehema. 

REHEMA ELLIS, NBC NEWS CORRESPONDENT:  Hi there Dan.  We‘re hearing those rumors and under normal circumstances, that testimony would have taken place in a Santa Barbara County courthouse like the one behind me.  But this is a high profile case.  And in an effort to protect the secrecy of the grand jury process, the hearing is going on behind closed doors away from here.  Take a look at some of this video.

There has been some relaxing of the media restrictions so we can show you video of the sheriff‘s training facility where the grand jury is meeting.  This morning we believe some van drove jurors and witnesses past the barricades into that area.  And as you say, it is rumored that the prosecution‘s key witness is on the list to testify today, the teenage boy who has accused Michael Jackson of sexual abuse.  NBC News has learned that Larry Feldman has testified.  He‘s the attorney who brought Jackson‘s accusers before legal authorities.

As you know, Feldman is also the attorney who handled the civil case against Michael Jackson in 1993.  Feldman brokered a multimillion-dollar settlement between Jackson and the boy‘s family who had accused him.  There was never any criminal charges filed against Jackson back then, we should say.  Michael Jackson maintained that he was innocent then.  He maintains that he is innocent now.  We should also tell you that expected to testify despite that settlement could be that boy who leveled charges against Michael Jackson back in 1993 -- Dan.  

ABRAMS:  Rehema Ellis thanks a lot.  So how do you prepare a child to testify before a grand jury that is evaluating whether to indict someone for sexual abuse?  Remember, it‘ll be the first time an alleged victim testifies. 

I‘m joined now by Bill Fallon, one of our favorite guests and a former prosecutor in Essex County Massachusetts...

(CROSSTALK)

ABRAMS:  ... where he was the chief of the Sexual Assault and Child Abuse Unit.  So Bill, you‘ve prepared a lot of children for this type of situation.  What do you do?  What do you tell them?  They‘ve got to be nervous regardless of you know whether you believe them or not? 

WILLIAM FALLON, FORMER PROSECUTOR:  Dan, this is a rather unique case because usually you‘re preparing kids either for a grand jury that you‘re going to—even though the enlightened courts (UNINTELLIGIBLE) systems don‘t put kids in grand jury, occasionally you have to put them in.  But you‘re going to just say look, just go tell your little story.  There really probably won‘t be many questions, I‘ll lead, as prosecutors always do, and I‘ll give you the information.

But remember, usually this is going to be preparing somebody in a different way.  You‘re really preparing somebody for trial here, which is a much different preparation because there‘s such a historical fact here that is already out, that‘s already to the defense, it‘s already to the media.  So now you have two problems.  You have a kid who really can‘t go in unlike a child where really you‘re talking about competency; this is now talking about credibility and believability.  Once you get to the teenage type of years it‘s very different.

Nobody says oh the poor, precious 6 or 7-year-old, can they be believed, do they make this up?  It must have happened if you can believe them.  This is now...

ABRAMS:  But...

FALLON:  ... what‘s in it for this kid.  So you have to bring the kid across as what—tell the story, tell it as best you can.  The who, what, why, -- the when becomes so important here because from a victim, which we very rarely have to do, you have to get in all of the false statements.  That is the statements of Social Services. 

ABRAMS:  What do you mean you rarely do it though, Bill?  When you‘re talking about any case and you handled a lot of sexual assault cases, when you‘re talking about any sexual assault of a child, I‘d assume in almost all those cases—I guess you could call the police officer in, right, who interviewed...

FALLON:  Dan, exactly that‘s what you do.  You‘d normally call the police officer here...

ABRAMS:  So why in this case are they not doing that? 

FALLON:  Well because I think right now, the major thing, and if I‘m this prosecutor here and you know I have my, let‘s say problems with them, you really want this kid to have everything on the record than he would possibly ever be expected to have in the grand jury presentment because you have to say to this little boy, this now teenager, look, this is what happened.  Now remember you told DSS—what made you tell them that?  You want to get out that he was either coaxed by Jackson or whatever caused them.  The best thing that kids usually say is I didn‘t come forward because I thought they‘d take my mommy and daddy away.  You have to explore all of those answers, find out those answers...

ABRAMS:  And there‘s no cross-examination here, right Bill?  I mean...

FALLON:  Except by the grand jury. 

ABRAMS:  Right and that‘s what I was going to ask you about.  While the defense attorneys aren‘t there, the grand jurors can ask questions. 

FALLON:  Not only can the grand juries ask question, Dan, most—more importantly and I think in California is very tight on—yes you really have to plenty a lot of exculpatory evidence.  You know nationally you‘d present some of the exculpatory evidence.  This is a case that is going to balance, this boy, the delicate balance, as I call it, this boy‘s testimony.  Is he believable with really what seems to be a slew of reports and otherwise that you‘re going to be confronting this boy with.  At that point, unless you address that head on, a grand juror who has heard about from maybe Feldman or somebody else a little of the story is going to start to come in.  You want to make the presentment so sound, so full, so complete...

ABRAMS:  Right.

FALLON:  ... that the grand jury is not going to ask a lot of questions.  Because what you don‘t want is not to be in control as a prosecutor. 

ABRAMS:  Right.  All right, Bill Fallon thanks a lot for joining us.

FALLON:  OK.

ABRAMS:  Appreciate it. 

Coming up next, authorities still trying to figure out how a pizza deliveryman in Pennsylvania came to have a bomb wrapped around his neck seven months ago.  A bomb that went off and killed the man while he was surrounded by police.

And for the first time, an apology from one of the people responsible for fighting terrorism before 9/11.  Now he‘s being criticized for it?  Why?  What kind of politicking is that?  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Remember this story seven months ago in broad daylight, Erie Pennsylvania, a man killed after a bomb strapped around his neck detonated.  A pizza deliveryman said he was forced to rob the bank with the bomb around his neck.  He died as he was surrounded by the police.  So what has the investigation uncovered?  How did it happen?  What did he know? 

NBC‘s Ron Allen has an update.

(BEGIN VIDEOTAPE)

RON ALLEN, NBC NEWS CORRESPONDENT (voice-over):  The bizarre crime still baffles veteran investigators.  A pizza deliveryman named Brian Wells, 46, robs a bank and then tells police he has a bomb collar around his neck.  He tells police he was forced to do the crime, and then the bomb explodes, killing him.  Police later find a note in Wells‘ car, telling him exactly how to commit the bank robbery and warning he would be destroyed if he went to the police.  Pieces to a strange puzzle that still don‘t add up. 

CLINT VAN ZANDT, FMR. FBI PROFILER:  I don‘t think this is a bank robbery, and I don‘t think the authorities believe it is either. 

JOHN WELLS, BRIAN WELLS‘ BROTHER:  Well I think it was just an elaborate plan to have a public execution.

ALLEN:  John Wells believes his brother was a pawn in a sick game played by a still unidentified bomb maker who forced him into a trap. 

WELLS:  He did not know these people.  He was not involved in this in any way, shape or form. 

ALLEN (on camera):  So why can‘t investigators solve the case?  One problem, they say, is the plot was probably carried out by just two or three people who have kept their mouths shut and their heads down ever since. 

(voice-over):  Last week, FBI Investigators reviewed television pictures of the incident, looking again to see who was there in case the bomber was watching.  A $50,000 reward for help still stands.  The case was mentioned again last weekend on “America‘s Most Wanted”. 

UNIDENTIFIED MALE:  How did this pizza deliveryman wind up sitting in an Erie, Pennsylvania parking lot wearing a bomb? 

ALLEN:  But investigators still need a break. 

VAN ZANDT:  They just don‘t have any information that‘s developed either locally or nationally to suggest who might have done this. 

ALLEN:  Or why.  Why would someone concoct such a diabolical and deadly crime?

Ron Allen, NBC News, New York.

(END VIDEOTAPE)

ABRAMS:  Coming up, why is the Senate majority leader going after former terror czar Richard Clarke for apologizing to the 9-11 victims?  Does that have anything to do with whether Clarke is telling the truth? 

It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, why the politicizing of 9-11 is being taken to new heights.  It‘s my closing arguments, plus your e-mails coming up.      

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why Senate majority leader Dr. Bill Frist has taken politicizing of 9-11 to new heights.  On Friday Frist went after former counterterrorism chief Richard Clarke, after Clarke said in both a new book and in his testimony in front of the 9-11 commission that the administration ignored warnings leading up to 9-11.  Considering the seriousness of those allegations, it‘s not just acceptable but necessary that Clarke‘s story be closely scrutinized, but Dr. Frist went much further even attacking Clarke for apologizing to the families of the victims? 

Clarke said—quote—“Your government failed you.  Those entrusted with protecting you, failed you, and I failed you.”  For the first time, one of the people responsible for fighting terrorism before 9-11 saying what many 9-11 families have been waiting to hear, a simple apology.  Many clapped and surrounded him after his testimony.  Everyone else who testified from both the Clinton and Bush administration just pointed fingers and defended their actions. 

Rather than give him credit even just for that, Dr. Frist said—quote—“Mr. Clarke‘s theatrical apology on behalf of the nation was not his right, his privilege or his responsibility.  It‘s my view it was not an act of humility, but an act of supreme arrogance and manipulation.”

Talk about arrogance, Dr. Frist admitted—quote—“I do not know Mr. Clarke, although I take it from press accounts that he has been involved in the fight against terrorism for the past decade.”  From press accounts?  So he doesn‘t know what role Clarke played in the decision-making and yet has determined that it was not Clarke‘s right, privilege, or responsibility?  As arguably the only relevant decision-maker involved in combating terror in both administrations, there‘s probably no one else more qualified to apologize to the families on behalf of the government, particularly when officials from both administrations refused to do it. 

Those attacking Clarke should be focusing on one relevant question—is he telling the truth and the whole truth?  And to help answer that question Dr. Frist is rightly seeking to declassify Clarke‘s past congressional testimony.  He hopes to show that Clarke‘s story has changed.  Fine, if there‘s nothing that will sacrifice national security secrets, then declassify it.  Even Clarke doesn‘t object to that, but I don‘t want to hear about alleged profiteering or the timing of the book unless there‘s a specific allegation attached to it that tells us something about whether the book is true. 

Secretary of State Powell has said that while the book does not tell the—quote - “complete story”, Powell does not attribute any—quote—

“bad motives” to Clarke.  No question making up lies to make money would be bad motives.  We need to get the complete story, not political games intended to cloud the real issue, whether Clarke is telling the truth.  It‘s just too important. 

All right, I have had my say.  Now it‘s time for “Your Rebuttal”.  Last week after we prodded them for weeks, Amnesty International finally issued a statement condemning Palestinians use of children as suicide bombers. 

Scott Babcock from Seattle, Washington wrote this note on Thursday.  “If you have so much pull to get Amnesty to take action on young suicide bombers, maybe you can get Condoleezza Rice to testify under oath like everyone else and quit holding behind the constitution when it‘s convenient.”  OK, Scott, done.  I will get Condoleezza Rice to testify. 

In California, we covered the Santa Monica City Council passing an ordinance which would ban smoking on its public beaches and the famous Santa Monica Pier.  I said this was just another example of taking the anti-smoking effort to ridiculous extremes. 

Janet Rosenthal from Los Angeles disagrees.  “There are more cigarette butts on that beach than most.  And our kids do pick up the butts and put them in their mouths faster than we can grab them.”

Janet, then have them enforce the littering laws if that‘s the issue.  As I said, I am sure your kids could be putting lots of disgusting things in their mouths if they are not enforcing the no litter laws on the beach. 

From San Jose, California, Pamela Mahlow.  “Try exercising and you will inhale smoke all along the water and on the bike path.  Non smokers have civil liberties too and smoking affects everyone around.”

Pamela, what you want is to outlaw smoking.  Fine, then get it outlawed.  But until that happens, it‘s legal to do it, and it‘s just politically correct nonsense to pass ordinances like this one about smoking in wide-open, outdoor areas. 

Lana Kennedy from Norfolk, Virginia gets it.  “They don‘t have enough police to enforce their litter laws, so how will they enforce this ban?  This is politics at its worst.  Does anyone really believe this ban is to reduce litter?”

Andrew Paterekas, “You mean to tell me in these—you mean to tell me these freaks in California worry more about secondhand smoke out in the open air than gas guzzling SUVs?”

Finally, I gave a couple of lawyers a hard time, who had represented a female former high school athlete.  Remember when she sued her school district after graduation.  Her claim, that after her high school basketball coach told her should lose 10 pounds before the season that she developed an eating disorder for life.  She received a verdict of $1.5 million.  The biggest outrage, the verdict was already reduced because she refused treatment for the disorder.  Plenty of you furious too. 

Pamela Bates from Houston, Texas.  “It is disgusting and ignorant to just hand over a pile of money to this young girl.  She has refused treatment.  Don‘t these kind of judgments enforce the assumption that if someone wrongs you it‘s your lucky payday?”  I agree, Pamela, and that‘s exactly why I sort of gave the example of my wrestling coach telling me to lose weight. 

But from Macomb Township, Michigan, Paul Sugameli says my example is irrelevant and shocker—he‘s a lawyer.  “I must take you to task for your absurd arguments made relative to the high school coach causes eating disorder story you discussed.  The coach in your story is liable and through him the school district because his conduct caused an injury, which is considered severe.  While you may have gotten a tongue lashing or two from your wrestling coach, you did not develop a medical condition, which has severely affected a portion of your life.” 

Paul, first of all, she refused treatment.  But second of all, using your logic, anyone could sue anytime someone insulted them in a way that left them—quote—“scarred”.  A friend insults another.  He never forgets it and claims it‘s made it impossible for me to find a job based on what my friend said, so I am going to sue him.  That‘s a legitimate lawsuit, according to you, or a teacher gives someone a bad grade with a particularly harsh critique.  That‘s a lawsuit you would file?  That is not and should not be what our legal system is about, but I appreciate you telling us that you still like the show. 

Your e-mails abramsreport—one word -- @msnbc.com.  We go through at the end of every show. 

Coming up next, “HARDBALL” with Chris Matthews.  Chris talks with 9/11 commissioner James Thompson about Condoleezza Rice‘s decision to come before him and other members of the commission and testify under oath and in public. 

I‘ll see you back here tomorrow.  Bye.

END   

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