updated 4/2/2004 12:54:33 PM ET 2004-04-02T17:54:33

Guests:  Gil Alba, Arthur Aidala, Joel Androphy, Tiffany Erwin Moller, Phillip Anthony, Jerry Markon, Joseph Deltito

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

DAN ABRAMS, HOST:  Hi everyone.  Police in Madison, Wisconsin release a sketch of a suspect wanted for questioning in the case involving kidnapped college student Audrey Seiler.  But they sure don‘t seem convinced the story is what it seems.  A press conference just wrapped up. 

Plus, stealth jurors.  From Martha Stewart to Scott Peterson, are people trying to get on to high profile cases by lying. 

And why would watching a movie compel criminals to confess to crimes they would have gotten away with?  It appears Mel Gibson‘s “The Passion of The Christ” has done just that, from burglary to even murder. 

But first, Audrey Seiler, the missing college student from Wisconsin, went missing for four days, was found yesterday afternoon in a marsh near her college campus.  Within moments police had circled the area, brining in sharp shooters, even police dogs, thermal imaging devices, all looking for the man who supposedly kidnapped Audrey at gunpoint.  But today, no word on the capture of that man, and lots of questions are beginning to surface about how she disappeared and whether police are even considering this an abduction. 

Why did she leave her apartment in the middle of the night without taking a coat, her purse, or even her keys?  And what about the alleged assault a few weeks ago?  Remember she was attacked from behind by an unknown assailant, knocked unconscious.  Nothing taken from her.  She was not sexually assaulted.  A few moments ago, the police held a press conference that sounds like they have some suspicions. 

(BEGIN VIDEO CLIP)

ASST. CHIEF NOBLE WRAY, MADISON, WI POLICE DEPT.:  On March 27 Audrey Seiler reported that she was abducted by knifepoint from her apartment.  After extensive searching by hundreds of volunteers and numerous law enforcement officials Audrey was located.  Audrey was able to provide a description of a suspect to our department prior to being transported to St. Mary‘s Hospital where she was evaluated and eventually released. 

Madison police officials had a chance to speak with Audrey regarding a description of a suspect and began searching the area where she was last seen.  After several hours of intensive police operations the area was searched and no suspect was located.  Currently, the Madison Police Department is investigating the reported sequence of events from Audrey and other witness‘ statements.  Like in any other major investigation there may be inconsistencies, but our—but we are continuing forward with this investigation. 

Let me repeat that.  Like in any other major investigation, there may be inconsistencies, but we are continuing forward with this investigation.  It is not our role or the role of police, a police department to speculate on the outcome of an investigation until it has been completed.  The Madison Police Department will continue to investigating all reports made to our department in an attempt to identify the facts involving the reported abduction. 

We continue to urge people to continue taking normal safety precautions such as locking your doors, utilizing safe rides, never walking alone.  The Seiler family is doing well as our investigation continues to progress.  We continue to urge anyone with information about this incident to contact Crime Stoppers. 

(END VIDEO CLIP)

ABRAMS:  All right, listen carefully to what he just said because that‘s all the he said and it was literally just moments ago.  He is saying several hours of intense investigation looking for this suspect.  They thought that they had the area circled, no suspect located.  They are investigating the reported sequence of events and he says likely any other investigation there may be inconsistencies.  Well, this is certainly not the sort of press conference you usually hear at the outset.  They say an abduction occurred.  Now we‘re looking for the suspect.

He says normal safety precautions, not to take particular precautions.  Again the question would be are they particularly concerned that there is someone out there.  Jeannie Ohm joins me from the scene. 

Jeannie, is that the same sort of interpretation that people there were taking from this, which is that the police are sort of saying (UNINTELLIGIBLE) we‘re not going to say that we are suspicious but we have a lot of questions.

JEANNIE OHM, NBC NEWS CORRESPONDENT:  Well I will say, Dan, this was quite extraordinary.  Just to give you a little bit of the back story, earlier today, Chief Wray, who had read that statement, was telling us that only if there was a major development would they have a news conference.  Then we got word that they wanted us all to be here by 4:30 Central Time, that they were going to read a statement.  That‘s when there was a lot of buzz speculation that perhaps there was a major development.

And all Chief Wray was in essence was saying is that the investigation is ongoing.  Well then why call this event?  Well there‘s been a lot of talk within this community, you‘ve got local headlines such as this questioning the fact—abduction saying “The Mystery Deepened” and you have local airwaves here filled with people calling in, the majority of callers saying that they doubt what really happened.  So, instead you have police responding to the mood of the community saying it‘s not our job to speculate, that we still need to investigate this case.

And adding to that that‘s why they did go ahead and release a composite sketch, adding a few more details than what police had announced yesterday, saying that Audrey not only had described a white male in his late 20‘s to early 30‘s, but saying even more particular details that he had a longish, a rectangular head with chubby cheeks and a prominent chin, a long flushy nose, small mouth.  So, certainly a lot more particular details than what was available yesterday. 

So police—it was quite unusual, they actually came out here to say that the investigation was ongoing in a way to try to squelch the rumors or try to die down the talk in the community saying that this just isn‘t true, police saying we cannot come to that conclusion at this point.  Our job is to investigate all the facts and Chief Wray making a point that there may be inconsistencies in cases and that they will continue moving forward in this investigation.  So, this news event, this statement did not answer the questions.  Instead, perhaps it did just deepen the mystery out here in Madison, Wisconsin—Dan. 

ABRAMS:  All right, Jeannie Ohm, if you can just stand by for a minute because I may want to just check some facts with you just in case in my conversation with former New York Police Department Detective Gil Alba, who joins us now.

All right, so you‘ve heard the press conference.  Look, you‘ve been

involved in a lot of high profile cases.  This is odd.  This is—he keeps

saying like any other high profile case there are inconsistencies.  Yes,

but in any other high-profile case, you don‘t say at a press conference the

day after the person is found about consistencies, that they‘re reporting -

·         they‘re investigating the reported sequence of events, a lot of important words here.

GIL ALBA, FMR. NYPD DETECTIVE:  Well first, Dan, let me just say this, that we‘re glad that she‘s back anyway.  Let‘s put it that way.  Whether this happened or not, let‘s just thank God that she‘s alive.  That‘s number one.

Number two, what the police job is to get all the facts.  What they did with her is they brought her in a room and they started talking to her.  They started asking questions.  Now a lot of detectives weren‘t in the room, probably the detective that has the case and his partner were just there talking to her trying to get information—as much information as possible.  However, her details, that‘s what‘s important sometimes when you ask these kinds of questions, the details are not there and that‘s when you start you know...

ABRAMS:  Yes, but Mr. Alba, I‘ve got to tell you, I think that they know a lot more than they‘re—and I‘m not saying that they should be telling us more than what they are, but I have no doubt in my mind that they—you‘re basically saying well, you know there‘s still a lot of holes in it, they‘re still investigating, they‘re still asking questions.  I believe and correct me if you disagree with me, I believe they know a whole lot more than they‘re saying and they have a lot of suspicions one way or the other. 

ALBA:  Well knowing more, I don‘t know about that.  Suspicions, yes, they certainly have suspicions.  But what are they going to say?  That she‘s not telling the truth?  You‘re certainly not going to do that to her.  What you want to do is sit down and show her a little of sympathy.  She may be troubled.  She may be having a problem, so let‘s get everything out and let‘s clear the air.  Let‘s get the truth out from her.  So obviously it‘s going to take time.  This is going to take a long interview with her to sit down and get all the facts. 

ABRAMS:  Jeannie, very quickly, are the police still suggesting that they need to talk to her more?  I mean was there anything about that that‘s come out in the last few hours?

OHM:  Well they had indicated that this could perhaps be a lengthy process because they have several days here that they have to fill in the gaps from, early Saturday morning until yesterday when someone outside their window had noticed a woman in need of help in a marshy area.  But I think the reason why a lot of people have concerns or suspicions, if you will, is that we all saw that surveillance video from Audrey‘s apartment building showing her leaving the building at 2:30 in the morning early Saturday.  So clearly you can see that she‘s willingly leave her apartment, she did not take her coat or her wallet with her.  She left her car behind and then—police then say that Audrey say she was abducted at knifepoint.  So because you have the image of her leaving in the middle of the night seemingly willingly...

ABRAMS:  Yes.

OHM:  ... and then you hear this story, that‘s why a lot of people are having doubts about what may have happened.  But bottom line here from police is they‘re not going to speculate and they‘ve got to continue this investigation...

ABRAMS:  And I think they‘re very—obviously very smart not to be speculating at this point.  Jeannie Ohm, thanks a lot. 

All right, Mr. Alba what do you make of the fact that she was apparently wearing the same clothes from the time—at the beginning to the time at the end.  And I have to tell you that it does sort of back up the story that there was someone involved when someone called in saying that they say someone who might need help.

ALBA:  Yes, but listen, the whole story from 2:30 in the morning on, on a Saturday for her going out and like you said on video and then they saw her alone, they never saw anybody else, I mean right there throws some kind of suspicion as to an abduction and a kidnapping.  You know when she‘s out walking around, she got kidnapped, she got put in a car, in a trunk, that‘s all a possibility.  Personally I don‘t really think the police know anything that much about it.  You‘re trying to think—trying to say that they do know a lot, I‘m trying to say that they are putting all these pieces together and they certainly want to believe her, but...

ABRAMS:  Yes.

ALBA:  ... but I don‘t think it makes that much sense. 

ABRAMS:  And remember, of course, also the doctor yesterday said that she had been confined—in a confined area and that was part of his examination of her but she was released shortly thereafter.  And I think you said it well, Gil, regardless of what happened here or didn‘t happen here, she‘s home safe.  That‘s “A” number one.  Now number two is exactly what happened.

ALBA:  Right.

ABRAMS:  Thanks a lot for coming on the program.  Appreciate it.

ALBA:  Thanks a lot Dan.

ABRAMS:  Coming up, Martha Stewart‘s lawyers want a new trial.  They say one of the jurors lied about his past criminal history.  Does it matter that she was convicted of lying and a juror is now accused of lying? 

And Mel Gibson‘s movie “The Passion of The Christ” has moved millions of moviegoers and even moved some criminals to confess to crimes like burglary and murder.

Don‘t forget your e-mails abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  I‘ll respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, did one of the jurors in the Martha Stewart trial sneak onto the jury just to get Martha convicted?  Her lawyers say yes.  They‘re asking for a new trial.  What are her chances?  We‘ll tell you.

(COMMERCIAL BREAK)

ABRAMS:  Is Martha Stewart going to get a new trial?  Her defense team thinks she deserves it.  Stewart was found guilty of conspiracy, obstruction of justice, lying to federal investigators last month.  Her attorneys are now saying one of the jurors in the case lied.  Stewart‘s team filed a motion yesterday alleging that juror Chappell Hartridge intentionally lied about his criminal past on his jury questionnaire in an effort to get on the jury.  Stewart‘s team points out that Hartridge was one of the most outspoken members of the jury, one of the first ones to talk to the media moments after she was convicted, but more than that, they say Hartridge had an ax to grind. 

Their motion reads, “The facts establish that Hartridge is a man with a checkered history who deliberately concealed his prior experiences with the legal system so that he could empower the little man and profit from the process.  He appears to have committed perjury to gain access to a case in which he would judge whether other defendants made intentional false statements.”

Really?  They can show that‘s why he lied to get on the case?  So the little man would get vindicated?  I don‘t know about that.  Let‘s ask the legal team.  Joining me now, former federal prosecutor Tiffany Erwin Moller who worked in the very office where Stewart was prosecuted, white collar defense Arthur Aidala, who handled similar cases regarding obstruction of justice in that same district and white collar defense attorney Joel Androphy who has handled numerous security fraud cases. 

All right, Arthur let me start with you.  I mean look, I get why the defense is making this motion.  It‘s a valid motion to make.  They shouldn‘t be criticized for making it, but they don‘t have a real chance here it doesn‘t seem to me because they‘re not going to be able to prove that the reason this guy wanted to get on the jury was so he could help the little man.  They‘re just taking a lot of statements and putting them together.

ARTHUR AIDALA, WHITE COLLAR DEFENSE ATTORNEY:  Dan, you think the prosecutors would be making this motion if the verdict came in as an acquittal?  Now they can‘t legally.  However, they would be on those courthouse steps in 15 seconds...

ABRAMS:  I‘m not criticizing...

(CROSSTALK)

ABRAMS:  Again, I‘m not criticizing them for making the motion. 

AIDALA:  OK.ABRAMS:  I‘m just saying it‘s a long shot motion.  Do you agree?

AIDALA:  Well I will tell you this.  If they can show—if Morvillo can show that there was a pattern in jury selection that he struck other jurors who had similar backgrounds he didn‘t want those type of people on the jury, then I don‘t think it‘s such a long shot.  He could say—the appeals court, this guy blatantly lied.  Had I known the way the other jurors, the way they were honest, if he was honest and he told the truth, then he would not be sitting on this jury.

ABRAMS:  Well...

AIDALA:  Here‘s a guy who clearly doesn‘t like women.  He‘s been charged with beating a woman...

ABRAMS:  Oh, so we‘re going to go and we‘re going to start evaluating every juror‘s sort of past and say you know what...

AIDALA:  No...

ABRAMS:  ... we should have evaluated the fact...

(CROSSTALK)

ABRAMS:  ... that this guy...

AIDALA:  What we‘re going to do, Dan, is we‘re going to see whether they told the truth or not and whether they were put on this jury based on truthful information or if they lied—what if he lied about being convicted of a felony and nobody caught up on it...

ABRAMS:  Yes.

AIDALA:  ... do you think then...

ABRAMS:  It‘s happened in the second circuit before and they‘ve basically said, if it is—if the person didn‘t put it in because it‘s embarrassing or whatever else...

(CROSSTALK)

ABRAMS:  ... not enough to get a new trial. 

AIDALA:  Dan, as you probably know, in a courtroom, if there‘s anything embarrassing, a judge will normally give a juror an opportunity to speak privately with the court.

ABRAMS:  I understand that...

AIDALA:  You don‘t lie...

ABRAMS:  ... but it just doesn‘t get you a new trial.  Let me bring in Mr. Androphy.  What do you make of this?

JOEL ANDROPHY, WHITE COLLAR DEFENSE ATTORNEY:  First of all, this is a case—if this is a case that‘s going to get reversed, it‘s going to get reversed because of some issue of gender bias.  If they can show, and you know the issue obviously is one of honesty, but the key factor that the defense is going to have to show is that there was an issue of gender bias.  This gentleman didn‘t like women, and there are a lot of women, including the judge in this case that can associate with that.  There‘s a lot of people, there‘s ethnic bias issues, there‘s all sorts of racial bias issues, that‘s what this case is going to boil down to. 

We know as a matter of fact from what obviously has been shown in this case that he didn‘t give all the answers he should have given.  There‘s a lot of jurors that are in that situation.  But there‘s a key to this case and that is one of bias.  You have to get this case reversed.  You have to show some actual bias. 

ABRAMS:  But, Tiffany, it has to be even more than just bias.  I mean doesn‘t effectively have to be that this juror corrupted the system?  I mean to get a new trial...

TIFFANY ERWIN MOLLER, FMR. FEDERAL PROSECUTOR:  Yes.

ABRAMS:  ... is a big deal.

ERWIN MOLLER:  It‘s a huge deal, Dan.  And that—the court set a very high standard for exactly the reason you said, which is look, this is not a trial about the jurors.  This is a trial about Martha Stewart or the defendant.  It‘s not a trial about the jurors.  There‘s a very high standard.

And I don‘t know how in the world with all due respect to the member of the panel who suggested that they would have to show gender bias how they could show that sort of thing.  I mean how could you show gender bias?  And there are questions as a matter of fact in the jury questionnaire that talk about all sorts of issues including gender bias.

ABRAMS:  Tiffany, let me throw this out as a hypothetical...

(CROSSTALK)

ERWIN MOLLER:  Yes.

ABRAMS:  What Mr. Androphy would probably say is that he is accused of having beaten up a girlfriend in his house who he‘d been living with.  He didn‘t talk about it on the—in the jury selection process and in fact denied that he‘d had any sort of brushes effectively with the law, even though he was arrested for it, although he was never prosecuted.  And you know some people would say boy when you start beating up your live-in girlfriend, it shows you don‘t think too highly of women. 

ERWIN MOLLER:  Well but that‘s not the test, Dan, as you rightly pointed out...

(CROSSTALK)

ERWIN MOLLER:  That‘s simply not the test—going into people‘s background.  First of all let‘s just be clear.  We don‘t know whether or not this juror has lied.  We‘re using the word lie as if we‘ve already conclusively proven it.  That is a deliberate action.  That a is a mindset.  That is what we call (UNINTELLIGIBLE).

ABRAMS:  Well...

ERWIN MOLLER:  You need to show that he lied...

ABRAMS:  Wait a sec.  If it‘s true that he was arrested for beating up his live-in girlfriend...

ERWIN MOLLER:  Yes.

ABRAMS:  ... and he then said on the jury questionnaire, no, I—let me read the question...

ERWIN MOLLER:  Yes.

ABRAMS:  ... from the—question one, have you ever been in court before other than for a minor traffic violation?  Have you or has anyone close to you ever been sued by someone, been accused of wrongdoing on a job?  Have you or has a family member or close friend ever been questioned by law enforcement, accused of, charged with or convicted of any crime or been the subject of a criminal investigation other than a minor traffic violation?  If he said no—if he said no to that, that‘s a lie. 

ERWIN MOLLER:  Well it may not be—first of all the charge was dropped. 

AIDALA:  Tiffany, how could that not be a lie? 

ERWIN MOLLER:  Because...

AIDALA:  How could that not be a lie?

(CROSSTALK)

AIDALA:  They‘re asking him specifically if he was arrested if he had interaction with law enforcement and he‘s telling them no.

ERWIN MOLLER:  Because—well you‘re using the word lie and that‘s a legal term.  In order to get a new trial...

AIDALA:  Well...

ERWIN MOLLER:  ... let me finish. 

AIDALA:  OK.

ERWIN MOLLER:  In order to get a new trial, if I may, in order to get a new trial, the defense would have to show that this defendant lied, meaning with deliberate...

(CROSSTALK)

ERWIN MOLLER:  ... let me finish—deliberate, conscious purpose to get on that jury for whatever...

AIDALA:  But Tiffany, you think he forgot...

(CROSSTALK)

AIDALA:  ... you think he forgot that he was arrested? 

(CROSSTALK)

AIDALA:  You think he forgot he stole money, Tiffany, from the little league baseball kids.

(CROSSTALK)

ERWIN MOLLER:  Now that is exactly what I‘m talking about.  We are way in the land of speculation here.  That reference that you just made to little league...

AIDALA:  Yes.

ERWIN MOLLER:  ... that was from one person. 

AIDALA:  That crime of moral turpitude, go ahead.

ERWIN MOLLER:  ... a crime, you‘re using the word crime. 

(CROSSTALK)

ABRAMS:  All right, but the bottom line is...

(CROSSTALK)

ABRAMS:  ... we‘re getting off the point here.

(CROSSTALK)

ABRAMS:  Joel—let me bring Joel back in. 

(CROSSTALK)

ABRAMS:  We‘re getting off the point here.  The point is, and the reason I don‘t think they have a chance of winning this is because they won‘t be able to show that the reason he lied was so he could get on the jury...

ERWIN MOLLER:  Exactly.

ABRAMS:  ... to effectively corrupt the process. 

ANDROPHY:  Dan...

ERWIN MOLLER:  That‘s right.

ANDROPHY:  ... the corruption is an issue, but the law is very clear.  If you‘re dishonest, and we don‘t know that yet until the court holds a full hearing...

ERWIN MOLLER:  That‘s not the point...

ANDROPHY:  ... if you‘re dishonest with your answers, but that‘s not the primary issue.  The Supreme Court of the United States said that the primary issue is proving an actual bias.  Now when I hear that how do you prove gender bias?  Well how do you—bias issues have been around forever, racial bias issues...

ABRAMS:  Yes.

ANDROPHY:  ... gender bias issues, ethnic bias...

(CROSSTALK)

ANDROPHY:  ... if I‘m a Jewish person...

(CROSSTALK)

ABRAMS:  I have...

ANDROPHY:  ... I‘m not going to want...

ABRAMS:  I have got to wrap it up...

(CROSSTALK)

ABRAMS:  Let me—I‘m going to put you on the spot Joel, Arthur, and Tiffany.  Now Arthur, do you think that the defense is going to get a new trial based on this, yes or no? 

AIDALA:  I think they‘re going to get some sort of hearing...

ABRAMS:  That‘s not what I asked you.  Are they going to get a new trial?

AIDALA:  It‘s going to depend on the outcome of the hearing...

ABRAMS:  Oh come on...

AIDALA:  ... they‘re going to put the juror on the stand and they‘re going to find out whether he really lied...

ABRAMS:  Joel, yes or no, are they going to get a new trial?

ANDROPHY:  They‘re going to get a new trial and let me just add...

ABRAMS:  Oh come on...

ANDROPHY:  ... one thing.  If—there‘s plenty of minority people in this world that would dispute the issue...

(CROSSTALK)

ANDROPHY:  ... nobody would want a Klan‘s person on the jury, for example...

ABRAMS:  Oh come on...

ANDROPHY:  ... nobody would want a Nazi sympathizer...

ABRAMS:  All right, I‘ve got to...

ANDROPHY:  These are ethnic issues.  They are no different...

ABRAMS:  I‘ve got to wrap it up.

ANDROPHY:  ... than gender issues.

ABRAMS:  I know Tiffany thinks that they‘re not going to get a new trial.  So...

ERWIN MOLLER:  They‘re going to get a hearing, not a new trial.

ABRAMS:  Right.  I agree.  I agree they‘ll probably get a hearing...

ERWIN MOLLER:  Yes and they should get a hearing...

(CROSSTALK)

ABRAMS:  All right, I‘ve got to...

(CROSSTALK)

ABRAMS:  ... I‘ve to wrap it. 

(CROSSTALK)

ABRAMS:  I‘m being told to zip it.  Tiffany, Arthur...

ERWIN MOLLER:  Thanks Dan.

ABRAMS:  ... Joel, thanks a lot. 

AIDALA:  Thank you.

ABRAMS:  Whether it‘s Martha Stewart or the Scott Peterson trial, in some of these high-profile cases we‘re covering, there may be some people lying to get on the jury.  Coming up, how often is it really happening?  Guess what?  More often than you may think. 

And millions of moviegoers have been moved by Mel Gibson‘s “Passion of The Christ,” but moved so much to confess to murder? 

(COMMERCIAL BREAK)

(NEWS BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Frank is right about me.  I‘m the worst offender here.  I made up my mind about this case before I stepped through that door. 

(END VIDEO CLIP)

ABRAMS:  In the movie “Runaway Jury” John Cusack made it his mission to be placed on a jury to manipulate the verdict and make some money to fight the gun industry, but it may not just be Hollywood fantasy.  Now there have been allegations that this is actually happening in real courtrooms.  Stealth jurors, those who blatantly lie to get on cases so they can serve their own form of justice.

In the Scott Peterson case, defense attorney Mark Geragos contends one of the prospective jurors tried to do just that.  During questioning Geragos confronted the woman saying he has information that the retired municipal worker told a bus full of senior citizens on their way to Reno that Scott was—quote—“guilty as hell” and he was—quote—“going to get what‘s due to him.”  She had said in the questioning she had no preconceived notions about the case and denied the allegations. 

And as just told you, Martha Stewart‘s attorneys now asking for a new trial after they say a juror lied about his criminal history on his jury questionnaire, that he had his own ax to grind with Martha Stewart, they say.

And the jury in the Tyco case in turmoil after a 79-year-old juror appears to have made an OK sign to the defendants and is believed to be the only holdout for an acquittal.  Some are asking whether she might have had an agenda of her own. 

With a slew of high profile trials and others to come, Kobe Bryant, Michael Jackson, are these stealth jurors really that big a problem?  How often is it happening?  Phillip Anthony, jury consultant with the prominent firm DecisionQuest joins us.  They specialize in jury research, trial consulting and jury selection.  And “Washington Post” federal court‘s reporter Jerry Markon who has written extensive articles on the subject.

Mr. Anthony, how big a deal is this?

PHILLIP ANTHONY, JURY CONSULTANT, “DECISIONQUEST”:  Well it‘s a really big deal, Dan, and I‘ll tell you the concept of a stealth juror is something we first saw occurring maybe three or four years ago.  It came right on the heels of the O.J. Simpson case, which in many ways was of course a watershed event for the legal system.  But in the context of jury behavior it was also watershed event. 

What you‘ll recall, of course, is it was really the first time, the first practical time in American history during which the jury eligible American population, the everyday person out there in the world, could sit and watch an entire trial and not only did they enjoy watching the trial, but they were motivated to watch the trial and the light bulb went on for a lot of folks out there.  Now I‘m not saying everyone...

ABRAMS:  Yes.

ANTHONY:  ... in the American landscape, but for a lot of folks the light bulb went on and they said to themselves, if I end up being selected as a juror, this is my opportunity to engage in some form of social engineering, to put forward my agenda to the world...

ABRAMS:  Let me...

ANTHONY:  ... to leverage.

ABRAMS:  Let me give some stats that your firm put together...

ANTHONY:  Yes.

ABRAMS:  ... on stealth jurors.  Twenty-five percent can envision a situation where they would want to serve on a jury of people, 14 percent, this is the big one, willing to hide information about themselves to get on a high-profile case.  Mr. Markon, what has your reporting uncovered about this issue? 

JERRY MARKON, “THE WASHINGTON POST”:  Well I think he‘s right.  I mean it is becoming a bigger issue in the court system.  I think it‘s up in the air how often it happens.  It probably doesn‘t happen statistically speaking.  But it does tend to be happening in high-profile cases.  And I think those DecisionQuest numbers that he is quoted, that I wrote about a couple of years ago, are really interesting.  I mean quite frankly to me, I was always under the belief or the perception that most people don‘t want to be on a jury...

ABRAMS:  Yes.

MARKON:  ... so it‘s sort of inherently counterintuitive.  I mean just you know the notion that a quarter of the population does and 14 percent might hide information, I think that says a lot. 

ABRAMS:  Let me play a piece of sound from Mark Geragos involved in jury selection in the Scott Peterson case, talking about this very issue. 

(BEGIN VIDEO CLIP)

MARK GERAGOS, SCOTT PETERSON‘S ATTORNEY:  It‘s not the first, it‘s not going to be the last.  It‘s one of the things that we‘ve been greatly concerned about since day one in this case, that because of the hype, if you will, and because of the coverage in this case, that that was what the experts have all predicted would happen. 

(END VIDEO CLIP)

ABRAMS:  And Mr. Anthony, if that‘s what experts were telling him, how do the experts say you avoid this from happening?  I mean for example in the movie “Runaway Jury”, they had this whole team of people who were investigating each and every prospective juror and some people have said to me there‘s no way that the Martha Stewart defense team wouldn‘t have known about this guy‘s past.  What do you make of it?

ANTHONY:  Well first of all, Dan, the “Runaway Jury” is not reality as

we all know.  That‘s not what really occurs out there.  The reality is that

·         first of all, is the comment was just made.  Most people who are trying to—are trying to do a good job serving as jurors.  They are trying to do perform their civic...

ABRAMS:  Right.

ANTHONY:  ... jury duty.  You really have a very small portion of the population, and—who are interested...

ABRAMS:  But you just need one.  You get...

ANTHONY:  ... reporting their agenda...

ABRAMS:  You get one on there and you‘ve got a big problem. 

ANTHONY:  Well that‘s right.  You get one and you have a big problem.  And the reality is all you can do as a trial lawyer is look for inconsistencies.  If you‘re lucky enough to have a jury questionnaire, which some courts allow, in which the prospective jurors fill out a questionnaire and answer questions, as you had in Martha Stewart, although it didn‘t work apparently with one juror perhaps.  But if you have a questionnaire, you look for inconsistencies.  You look for signs of things that just don‘t make sense.  For instance, in a recent case we were involved with, a lawyer, a practicing lawyer, who was really eager to be on the jury, he really wanted to serve and it didn‘t make a lot of sense.  He was a busy fellow. 

He had a lot going on.  Well a long story short, it turned out after the fact—in fact, he did have an ulterior motive.  He was interested in becoming a consultant in this case for the plaintiff in the matter.  But usually these so-called stealth jurors are motivated by other factors in their lives.  They‘ve experienced something personally that causes them to want to put forward their agenda...

ABRAMS:  And very quickly...

ANTHONY:  ... something along those lines.

ABRAMS:  ... Mr. Markon and they...

MARKON:  Yes.

ABRAMS:  ... they probably get stopped most of the time before they get on the jury, right?

MARKON:  Well actually not necessarily and that‘s one of the things about this that sort of bedevils jury consultants and the legal profession is it‘s hard to tell because we‘re talking really about something that‘s attitudinal and can really be in someone‘s head. 

ABRAMS:  Yes.

MARKON:  And also I wanted to add another thing based on what you said before.  It‘s actually not only happening in high-profile cases, which I think is an interesting point to make because I wrote about a case a couple of years ago which was a tobacco trial and it was not one of the most high-profile tobacco trials.  It was, you know a woman—or a man whose wife had died of cancer and you know he was suing the tobacco industry.  One of the jurors lied and didn‘t reveal that he himself had cancer...

ABRAMS:  (UNINTELLIGIBLE)

MARKON:  ... and his mother had died of cancer and it was...

ABRAMS:  Yes.

MARKON:  ... little bitty case and he was thrown off.

ABRAMS:  Well that‘s just like what happened in that movie. 

MARKON:  Yes.

ABRAMS:  Anyway, Phillip Anthony and Jerry Markon, this is interesting stuff.  Thanks a lot for coming on the program. 

UNIDENTIFIED MALE:  Thank you.

UNIDENTIFIED MALE:  Thank you very much.

ABRAMS:  More on the jury system and why the supposed search for truth in trials often leave smeared witnesses in the wake.  Guess what?  It‘s my “Closing Argument” coming later in the show. 

Plus, is a devastating witness preparing to testify before the Michael Jackson grand jury?  Stay with us.

(COMMERCIAL BREAK)

ABRAMS:  Is a devastating witness preparing to testify before the grand jury in the Michael Jackson case?  Court TV reporting that Jackson‘s long time publicist and the head of his production company, Bob Jones, has been called to come before the grand jury.  Why would he be so important to the prosecution case? 

We‘re joined now by Jackson family friend Stacy Brown, also an NBC News analyst.  All right, Stacy, why is this guy so important to the case? 

STACY BROWN, JACKSON FAMILY FRIEND:  Well Dan, Bob has been with Michael for years, about 30 years now and he‘s also traveled with Michael.  He has come into contact with at least the first accuser in this, from 10 years ago in the case, and so I would imagine that this is the district attorney‘s way of trying to show a pattern of behavior by Michael and they‘re using people who have been there and no one knows Michael better than Bob Jones. 

ABRAMS:  But what can he provide that—I mean if he‘s a long time friend, is he really going to be able to say, you know I saw him molesting a child or something like that? 

BROWN:  Well he‘s probably not going to be able to say he actually saw him molesting a child, and I spoke to Bob just before we went on the air, and Bob says, hey, you know they want me there, I‘m going to have to tell them what—you know answer the questions that they ask of me.  I think what Bob can offer them is probably the—we hear allegations about Michael going on these trips with young kids.  Well Bob has accompanied Michael to a lot of places. 

ABRAMS:  But again, you know so Michael goes with children to places.  I mean I think most people would say, we know that.  I don‘t think anyone is going to dispute that.  Is there something specific?  I mean has his relationship with Michael Jackson changed?  Is there some other reason that the Jackson camp should be so concerned about Bob Jones being called in front of the grand jury?

BROWN:  Well I would be concerned if I was Michael Jackson because if, like I said, if anyone knows anything it would be Bob because Bob, again, he‘s one—a very trusted—he‘s not just another employee.  He‘s someone that Michael has trusted over the years and spent a lot of time with and he‘s spent a lot of time around Michael and activities that Michael has undertaken over the past 25, 30 years and particularly these last 10-plus years when these allegations first came to light. 

ABRAMS:  What is Michael Jackson‘s relationship with him now? 

BROWN:  Well Bob is still the vice president of communications for MJJ Productions, Michael‘s production company. 

ABRAMS:  So he‘s not going to really sort of sell Jackson down the river, is he? 

BROWN:  Well I don‘t think that‘s his goal at all.  But as he said to me, hey, he‘s got to be truthful.  You know he doesn‘t know what they‘re going to ask him, but he‘s also not going to perjure himself either.

ABRAMS:  All right.  Stacy Brown, thanks a lot. 

Coming up, Mel Gibson‘s “Passion of The Christ” has made over 290 million at the box office and apparently it‘s also made some people confess to crimes they‘d always gotten away with. 

Plus, my “Closing Argument”—key witnesses in high profile cases being smeared by defense attorneys who are now I think expected to engage in character assassination. 

(COMMERCIAL BREAK)

ABRAMS:  It‘s almost biblical.  Imagine criminals confessing to crimes after they see a vision of Jesus.  Well now, how about just an actor playing Jesus.  It‘s happened after some saw Mel Gibson‘s “The Passion of The Christ.”

(MUSIC)

ABRAMS:  The movie apparently making some confess to crimes that they‘d already gotten away with.  We‘ve identified at least three cases where people confessed to crime, some very serious, all they say after watching the movie.  Daniel Leach of Houston, Texas confessed to killing his pregnant girlfriend in January.  She was found hanging in her apartment.  Investigators ruled it a suicide.  Seemed like Leach almost got away with murder until he saw the movie.  He explained why he decided to come clean in a jailhouse interview. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  So after watching that movie I was very emotional and I thought about the things I had done and I was upset that I hadn‘t repented yet. 

(END VIDEO CLIP)

ABRAMS:  Another man, Turner Lee Bingham of Arizona, confessed to a

half dozen burglaries telling police that watching the movie had caused him

·         quote—“a sudden attack of conscience.” 

And this man, James Anderson, surrendered to police after spending two years as a fugitive.  Why?  Well he says the movie inspired him to turn himself in.  So is this surprising?  I mean there have been other movies.

Joining me now is Dr. Joseph Deltito, a professor of psychiatry at New York Medical College who has consulted on a number of criminal cases for the state of New York and has also seen the movie.  So, what do you make of this?  Is this—why is it this movie do you think that is leading—I don‘t think we can call it an epidemic, but certainly there have been a number of cases and I‘ll bet there are more than just the three that we identified where people have come clean after seeing the movie? 

JOSEPH DELTITO, PROF. OF PSYCHIATRY, NEW YORK MEDICAL COLLEGE:  There have actually been more cases documented in Europe in particular.  It makes sense to me psychologically that if someone who is essentially psychologically intact but does some horrendous act like killing someone, has a conscience and they feel like they want to repent after seeing this movie.  I think this movie in particular shows something that seems lifelike, that probably portrays the way it really was. 

The analogous movie to me is “Saving Private Ryan”, where we see people being killed on the beach, decapitated, blood coming out.  When I come up and I was watching westerns like “Bonanza” and “Gunsmoke” someone got shot, but you didn‘t actually see the blood come out of them.  This portrayed a brutalization of a man and if you‘re a Christian, it‘s a very strong story.  It‘s the “greatest story”—quote—unquote—ever told, according to Christians, that someone, an innocent man died for our sins.  After seeing this movie, it makes sense to me that some people who have a guilty conscience, which means they are psychologically intact enough to have a guilty conscience might confess on their way to repentance and salvation. 

ABRAMS:  What do these psychological organizations say if someone comes into a psychologist or psychiatrist office and says I have committed the following crime, I—and there is no threat to the psychologist or psychiatrist, but just I have committed the following crime, is there a way that a psychologist or psychiatrist can abide by whatever ethical code applies and also encourage the person to go turn him or herself in? 

DELTITO:  Sure.  You can always encourage the person to do what you think would be psychologically healthy for them or good for society.  You just yourself can‘t go and reveal the information that‘s given to you in this privileged situation.  Some states are a little different than others.  In the state of Connecticut where I practice mostly, you‘re obligated to report every—anything having to do with past acts of child abuse.  But other than that, if someone is a murderer, they tell you they murdered someone, clearly you‘re not supposed to report that without the patient‘s permission.

ABRAMS:  And do you find them coming to you and disclosing this type of information in particular after something has happened in their life, they have seen something, felt something, for example, you know seeing a movie like this.

DELTITO:  Yes.  Sometimes different events lead someone to feel more guilty or what we frequently see is that people live a long time feeling very nervous, feeling like they‘re going to be found out.  They see a police car behind them, they think oh, no, now they‘ve found out.  They think there is surveillance on their phone because they hear some clicks and sometimes that drives them crazy in a certain way.  It‘s an intolerable anxiety and sometimes people confess to a crime because they can‘t live with the anxiety of about being found out.  You know they‘re about to be found out...

(CROSSTALK)

DELTITO:  ... so they confess and they are found out and they feel better psychologically.

ABRAMS:  And I guess if you see the movie and you know you believe in Jesus Christ, you may say, you know what, there‘s someone out there who knows what I did, and I better come forward and do the right thing. 

DELTITO:  I don‘t think that‘s it.

ABRAMS:  No?

DELTITO:  I don‘t think that they see it and they think God knows.  I don‘t think that‘s the dynamic most of the time. 

ABRAMS:  All right.

DELTITO:  I think it‘s more they say, look at this poor man who suffered so much for my sins, I‘d better confess, I want salvation.  That‘s what I think.

ABRAMS:  All right.

DELTITO:  There may be cases like it.  They think God knows, so I better say.  But I don‘t think that‘s the psychological dynamic of most of these cases.

ABRAMS:  Doctor, thanks a lot for coming on.  Appreciate it.

DELTITO:  Thank you. 

ABRAMS:  Coming up, “Your Rebuttal” on the widow of slain “Wall Street Journal” reporter Daniel Pearl now attempting to get compensation from the 9/11 Victim‘s Fund set up by Congress.  Most of you think she should not be eligible.

(COMMERCIAL BREAK)

ABRAMS:  Coming up—why the supposed search for truth in trials so often leaves smeared witnesses in the wake.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why it is sad that the supposed search for truth in trial so often leaves smeared witnesses in the wake.  Every time there‘s a high profile arrest and trial, the key prosecution witnesses get slimed by defense attorneys.  Not just trying to show that the witness is lying, but often attacking everything about that person, which almost certainly is going to make witnesses more reluctant to come forward. 

In the Scott Peterson case, defense investigators have been drudging up all sorts of dirt on Peterson‘s former girlfriend Amber Frey.  They‘ll try to introduce as much of it as possible even though a lot of what she says will probably be backed with audiotapes.  And much what they have has little to do with whether she is telling the truth. 

In the Martha Stewart case, former broker Douglas Faneuil was the star witness.  Rather than just challenge his story, the defense tried to tell jurors among other things about Faneuil smoking pot in Jamaica.   

In the manslaughter trial of former NBA star Jayson Williams, one of the key witnesses, Benoit Benjamin, former basketball player and friend of Williams who was in the house.  After he described what he claims to have seen, the defense tried to describe him as bitter and broke in an angry cross-examination. 

Even Mark Fuhrman in the O.J. Simpson case, who clearly made inappropriate racist comments should not have had his life put on trial since he really could not have planted the glove and there was no remotely credible evidence that he did.  It just became a distraction. 

I‘m not defending these witnesses‘ character.  I‘m just saying it‘s time to better insure that trials are a search for the truth.  Now to those who say that it is part of a—trying to prove someone‘s innocence, I say take a step back.  Unless the police are getting the wrong person in every high profile cases, there are a lot of witnesses who are being improperly and unfairly slimed, some who are forced to come in and testify.  They just don‘t deserve this sort of total character assassination. 

Now in sexual assault cases, for example, there are built in protections for the alleged victims, designed to encourage them to come forward.  Protections designed to avoid putting the allege victim on trial.  Judges need to better protect other witnesses as well from the take no prisoners attitude that all defense attorney are now expected to adopt. 

All right, I‘ve had my say.  Now it‘s time or the “Your Rebuttal”.  Since last night we did not get to read your letters, on Tuesday night in my “Closing Argument” I said that Senate majority leader Dr. Bill Frist has taken the politicizing of 9/11 to new heights by attacking terror czar Richard Clarke for apologizing to the families of the victims.  I said the only relevant question is did Clarke tell the truth? 

Sharon Purcell from Richland, Washington writes, “Richard Clarke apologizes at the same time his book comes out and he is on television being questioned for the 9/11 event.  I don‘t call that even close to being a justified apology.  An apology from Clarke would have been accepted if he had done it the day after 9/11.” 

Accepted by who Sharon?  The families who actually went to the hearing sure seemed to appreciate and accept it.  And you think while he is still working for any administration he‘s going to be able to publicly apologize without approval first and neither administrations are offering any apologies. 

From Rhode Island, Anne Fletcher Price, “Why does an act of war from an aggressor warrant an apology from our government?  The Bush administration has extended condolences to all the families of 9/11 and to the American public.  Can we not turn the page?”

Well, because many believe that both the Clinton and Bush administrations could have done much more to avoid 9/11.  That‘s what the apology is for.  Condolences are not apologies. 

Dan Sweeney from Willowick, Ohio.  “This bitter partisan politics just has to stop.  Instead of protecting the donkeys and elephants, they should worry about the truth.”  Amen.

And then Mariane Pearl, the wife of “Wall Street Journal” reporter Daniel Pearl who was kidnapped and murdered by Islamic terrorists in Pakistan.  She is now fighting for compensation from the same federal fund benefiting relatives of victims killed on September 11.  I had a lot of questions for her lawyer about why she should be eligible and not other victims of terror attacks or even our soldiers in Afghanistan who have bravely fought al Qaeda.  Most of you appears were thinking the same thing.

From Delaware, Bob Mason.  “I cannot understand the concept of the U.S. government handing the survivors of every American civilian killed by some group with links to al Qaeda anywhere in the world at any time after 9/11 with an award, which I understand averages well over $1 million per family.”

Chris Watson from West Lafayette, Indiana.  “Daniel Pearl voluntarily placed himself into an environment that was inherently dangerous.  What happened to him was indeed a tragedy.  However, tragedies occur every day in this country and the American taxpayer shouldn‘t be required to pay for them.”

From Arlington, Virginia, Steve Wangsness agrees.  “Daniel Pearl put himself in danger voluntarily as part of his job and specifically by trying to set up an interview with dangerous people.  He was not some innocent stockbroker or secretary in the World Trade Center or passenger on a hijacked plane, none of whom asked to be put in danger.”  Well, I would say he is still innocent, but I understand your point. 

That wraps up the program for tonight.  Thanks for watching.  Up next, “HARDBALL” with Chris Matthews.  I will see you tomorrow.

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