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updated 4/12/2004 1:53:06 PM ET 2004-04-12T17:53:06

Guests:  Terry Anderson, Aaron Cohen, Richard Ben-Veniste, Dean Johnson, Mickey Sherman, Natasha Lapiner-Giresi, Matthew

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

DAN ABRAMS, HOST:  Hi everyone.  A new tool for insurgents in Iraq—kidnapping civilians.  They claim to have kidnapped two Americans and four Italians today.  This after terrorists threaten to do burn three Japanese citizens unless Japan withdraws from Iraq.  We‘ll talk to a former American hostage about this latest tactic. 

And you heard about Dr. Condoleezza Rice testifying in front of the 9/11 commission.  But what about former President Clinton and Vice President Gore?  They testified as well.  We‘ll talk to one of the commission members about how it went and look forward to next week‘s testimony of current and former law enforcement officials, Louis Freeh and Janet Reno to John Ashcroft. 

And the judge priding in the Michael Jackson case says he expects the grand jury to indict Michael Jackson on molestation charges.  Based upon what?  He is not even there.  Does this mean Jackson has no hope of avoiding a trial? 

But, first, kidnapping seems to be the latest tool for Iraqi insurgents hoping to force out occupying forces.  Today they claimed to have seized four Italians and two Americans on the western outskirts of Baghdad.  While there‘s no further confirmation of the kidnapping, a “Reuters” journalist reports seeing two foreign captives in a mosque.  One person said had been wounded in the shoulder and both were crying.  This comes after kidnappers released videos of three Japanese civilians held hostage.  The captors threatened to burn them alive unless Japan withdraws its troops from Iraq.  Japan has refused. 

A Lebanese TV station said it received a letter from a group calling itself the Mohammed E. Jihad Breed Brigades (ph), claiming responsibility for kidnapping foreigners in Iraq.  The letter reportedly demanded the U.S. lift the U.S. blockade around Fallujah in exchange for the prisoners‘ release.  The U.S. military had the reaction you would expect.  We don‘t negotiate with terrorists. 

My first guest knows all too well what it means to be held hostage.  Terry Anderson was the Beirut bureau chief when he was kidnapped by Muslim extremists in 1985.  He was held captive for nearly seven years, the longest of any American hostage, before he was finally released in 1991.  And Aaron Cohen is a former member of Israel‘s Special Forces counterterrorism unit and founder of an antiterrorism-consulting firm.  Thank you both very much for coming on the program. 

Mr. Anderson, let me start with you.  In terms of, you know, what is going through the minds of these people who have been kidnapped?  I would assume that, you know—obviously great fear, concern.  When you were initially kidnapped, what were you thinking? 

TERRY ANDERSON, FORMER HOSTAGE:  Of course you are frightened.  You are in peril of death.  You have to belief these people are serious when they threaten to kill you.  You feel helpless, helpless in a way that most people never can grasp.  And you feel angry.  Angry at yourself because you know the kind of suffering that your family is going to feel when they hear about this.  I think probably the hardest thing to take is the helplessness, though. 

ABRAMS:  As a journalist at that time where you were, were there concerns that there might be something like this?  Did this come out of nowhere? 

ANDERSON:  I don‘t think it came out of nowhere.  The conditions are there.  It‘s very clearly akin to Lebanon in the 1980‘s.  There‘s no central authority.  There‘s no police force effectively.  There‘s nothing to stop them, and there are dozens of militia groups who are angry, who hate us.  It‘s exactly the conditions that went on in Lebanon that a lot of those kidnappings to continue for seven and eight years.  It‘s a very, very dangerous situation, and I‘m afraid it‘s going to get more dangerous. 

ABRAMS:  Before I talk about sort of how to go about dealing with this sort of political/military level, what‘s the most important thing for people—for someone who has been kidnapped—you were there for years and years—to keep their sanity, to be able to survive?  What‘s the most important thing, do you think? 

ANDERSON:  To hold on to your sense of self.  To hold on to your sense of dignity and integrity.  It‘s very hard.  You‘re subjected to continual humiliations and threats.  You just—you have to keep hold of yourself, and you have to keep going from hour to hour to hour and not lose help.  There are a couple things in this situation I would like to say, Dan.  One of them is to those young people who have gone to Iraq to try to help aid groups and the Red Cross and—like these young Japanese people, I think you should go back to your hotel and pack your bag and sit out until somebody can get you to the airport.  This is going to get worse.  It‘s not going to stop in a hurry.  And I want to say to the Islamic clergy in Iraq, any leader, any mullah who does not stand up today and denounce these kidnappings, these threats of these young people—one of them is 18 years old, for God sakes—who does not denounce this is despicable in God‘s sight, cannot claim to be a follower of Islam.

ABRAMS:  Well said.  Aaron Cohen, what does Israel do?  I mean there have been a number of situations where Israeli soldiers have been taken hostage, where Israeli civilians have been kidnapped.  How does Israel deal with it?

AARON COHEN, ANTI-TERRORISM EXPERT:  Israel deals with it the same way the U.S. deals with it.  We have a no negotiating policy.  In Israel there‘s a very clear-cut set of rules that are used.  The first thing, obviously, is to gather, you know, as much intelligence as possible on the, you know the potential locations of the terrorists and the situation of the hostages.  Afterwards they want to get there as quickly as possible and begin some type of dialogue so they can begin to take control of what they call controlling the process and what that allows them to do is slow things down and buy them time.  Meanwhile, while things are being controlled and slowed down, if it‘s possible, this would give, you know, a country the ability, like Israel, to actually be able to begin to plan some type of, you know, strategic assault, anti-terror, hostage rescue that‘s highly trained in selective shooting that can actually physically go in and bring out the hostages with the minimal amount of risk. 

ABRAMS:  But there have been cases, have there not, where Israel has made trades, where they have traded civilians or soldiers for, you know, 400 or so Arab prisoners.

COHEN:  They have made negotiations before, and they have engaged in deals, and it purely depends on the situation.  If Israel has the ability to negotiate and reduce the risk to the captives by the captors, then obviously they‘re going to do their best to get everybody out alive, and unfortunately, the situation in Israel is very complex, but it‘s not indifferent to what they‘re doing now. 

ABRAMS:  But I was just clarifying when it says no negotiating policy, you are not going to give them what they‘re asking for, meaning no one is going to give into some political demand like pull out of the West Bank or pull out of Iraq.  The only thing that Israel has considered at times is making trades, correct? 

COHEN:  Correct.  Absolutely...

ABRAMS:  All right.

COHEN:  ... correct.

ABRAMS:  All right.  Terry Anderson and Aaron Cohen, thanks a lot for coming on the program.  Appreciate it. 

COHEN:  Thank you, Dan. 

ABRAMS:  Coming up, what did the 9/11 commission learn from former President Clinton and Vice President Al Gore in closed door testimony over the last two weeks?  We‘ll ask one of the commission members. 

Plus, a look ahead to next week‘s testimony, and we‘ll update you on a number of big trials in the news, including the Michael Jackson case.  The judge saying he expects the case will go to trial.  Does that mean the grand jury will indict on molestation charges? 

Plus, Martha Stewart‘s chances of getting a new trial, the prosecutors say it shouldn‘t happen, that a juror‘s alleged lies about his criminal history might have just been innocent mistakes. 

Your e-mails abramsreport@msnbc.com/  I‘ll respond at the end of the show. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, 9/11 commissioner Richard Ben-Veniste grilled national security adviser Condoleezza Rice in public this week, but behind closed doors former president Bill Clinton and Vice President Al Gore in separate sessions.  We‘ll talk to him about it right after this. 

(COMMERCIAL BREAK)

ABRAMS:  Top official from both the Clinton and Bush administration testifying in front of the 9/11 commission about what they knew prior to the 9/11 attacks.  Yesterday national security adviser Condoleezza Rice was only one of the witnesses the commission heard from.  She testified in public, covered around the world, three hours before the panel.  Commission member Richard Ben-Veniste and Dr. Rice had some contentious exchanges. 

(BEGIN VIDEO CLIP)

RICHARD BEN-VENISTE, 9/11 COMMISSION MEMBER:  Did you tell the president at any time prior to August 6 of the existence of al Qaeda cells in the United States? 

CONDOLEEZZA RICE, NATIONAL SECURITY ADVISOR:  First let me just make certain...

BEN-VENISTE:  If you could just answer that question...

(CROSSTALK)

BEN-VENISTE:  ... because I only have a very limited time. 

RICE:  I understand, Commissioner, but it‘s important...

BEN-VENISTE:  Did you tell the president...

RICE:  ... it‘s important that that I also address...

(APPLAUSE)

BEN-VENISTE:  And I ask you whether you recall the title of that PDB.

RICE:  I believe the title was “bin Laden determined to attack inside the United States.”  Now, the...

BEN-VENISTE:  Thank you.

RICE:  ... PDB  -- no, Mr. Ben-Veniste...

BEN-VENISTE:  I will get into the...

RICE:  I would like to finish my point here. 

BEN-VENISTE:  I didn‘t know there was a point. 

RICE:  Given that...

(END VIDEO CLIP)

ABRAMS:  What seems to have fallen off the radar is the fact that President Clinton spent three hours in a closed-door session with the commission yesterday as well.  And today former Vice President Al Gore also in a private meeting with the panel. 

Joining me now is 9/11 commission member Richard Ben-Veniste.  Mr. Ben-Veniste was also the chief of the Watergate Task Force, as well as chief counsel of the Senate Whitewater Committee.  Thank you so much for coming on the program.  Appreciate it. 

BEN-VENISTE:  Thank you. 

ABRAMS:  So, first just lay out a big picture question for us, and that is why Dr. Rice in public and President Clinton and Vice President Gore behind closed doors? 

BEN-VENISTE:  Well, I think the protocol that was set up early on was for the president and former president, the vice president and former vice president would not be appearing in public.  If I had any druthers, everybody would appear in public, but that‘s not going to happen. 

ABRAMS:  And what was the reasoning behind that? 

BEN-VENISTE:  I think it‘s appropriate for the president and former vice president to give their recollections to us in closed session.  Much of what we discussed was confidential in the sense of being national security sensitive information, and some of it was classified at the very highest levels. 

ABRAMS:  Are you grilling the president and vice president the same way you were grilling Condoleezza Rice? 

BEN-VENISTE:  Well, I don‘t know about grilling.  The problem was I only had 10 minutes to ask a series of questions, and, look, it certainly wasn‘t personal.  I have the highest regard for Dr. Rice, and she knows that, but our objective is to get the facts out and that‘s what I was attempting to do, and I think largely we got Dr. Rice‘s answers. 

ABRAMS:  Do you think she‘s not being entirely forthcoming? 

BEN-VENISTE:  I think I received the answers to the questions.  There was some extra information supplied from time to time, but, listen, we do the best we can.  Our mandate is to provide a full and documented record of what happened in 9/11.  That‘s what we‘re trying to do. 

ABRAMS:  What do you say to those who are now saying that this is becoming so politicized, that, you know, you were appointed by Democrats, you‘re grilling Condoleezza Rice.  When Richard Clarke is testifying, some of the Republicans are grilling him.  There is the feeling that there is a political divide on that commission. 

BEN-VENISTE:  Well, you know, the commission doesn‘t feel that way.  We have never had a partisan vote.  We have been unanimous in our requests for the presidential documents, and we finally got them.  We‘ve been unanimous in our request for Dr. Rice‘s testimony, and we got it.  We were unanimous in our request that all 10 commissioners question the president and vice president, Bush and Cheney, and we got that.  We were unanimous in our request that the PDB of August 6, 2001, be declassified. 

ABRAMS:  Do you expect...

BEN-VENISTE:  ... probably will get that too.

ABRAMS:  Well I was going to say do you expect a unanimous report from this commission? 

BEN-VENISTE:  Yes, I do.  Those who are looking at this through political lenses need to understand that the members of this commission well believe that the mandate that we have and the job that we have to do is so important to our country that it transcends any notion of temporal political advantage. 

ABRAMS:  Can you tell us anything about President Clinton and Vice President Gore?  I mean I understand you can‘t...

BEN-VENISTE:  Yes.

ABRAMS:  ... get into the details.  What can you tell us about...

BEN-VENISTE:  That‘s true.  Well, we spent about three and a half hours with President Clinton.  He answered every question, and supplied much additional information.  Every commissioner had the opportunity to ask as many questions as he or she wished to, and it was, I think, an extraordinary afternoon.  We received a lot of important information and the new insights. 

ABRAMS:  Did he admit that he had made any mistakes? 

BEN-VENISTE:  You know, it‘s interesting.  President Clinton took the position that we ought to be evenhanded and if he had made mistakes or we feel that he had made mistakes, we ought to say so. 

ABRAMS:  But did he admit—did he believe in retrospect that he made mistakes? 

BEN-VENISTE:  I don‘t think that that was an issue.  He laid out the facts, and we have a good appreciation of them, and they will be reflected in our final report. 

ABRAMS:  Richard Ben-Veniste, thanks a lot for taking the time to come on the program. 

BEN-VENISTE:  Thank you. 

ABRAMS:  Coming up, we‘re going to update many of the big legal stories of the day, including the Michael Jackson case.  Why is it that the judge that‘s priding over his trial is saying it‘s all but certain Jackson is going to trial? 

Plus, attorney Mark Geragos‘ other case, the Scott Peterson murder trial moving at a snail‘s pace.  Question—will he get another chance to move the case?  He says he might be entitled to it.  We‘ll ask our legal team

(COMMERCIAL BREAK)

(NEWS BREAK)

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

ABRAMS:  All right.  Now what we want to do is we want to update you on a bunch of the high-profile cases going on throughout the country.  First segment, Michael Jackson case.  The judge overseeing the case now says even he expects the case is going to go to trial.  During last week‘s hearing, Judge Melville warned attorneys not to name some of those involved in the case, and he said—listen carefully - and I want to remind you that the reason we‘re doing this is to ensure that if there‘s a jury trial in the future, which I fully expect there will be, and he went on from there.

So why is he so confident?  Is it a foregone conclusion?  We‘ve also learned prosecutors have apparently been preventing grand jury witnesses from talking at all to Jackson‘s lawyers and investigators, even some of the defense‘s own witnesses.  The court ruled that that now changes.  What is going on here? 

Let‘s bring in our legal team—criminal defense attorney Mickey Sherman, former prosecutor Dean Johnson, and New York public defender Natasha Lapiner-Giresi.  All right, Dean, you‘re the California lawyer.  Let me start with you.  Question one, the judge saying he fully expects there to be a jury trial.  Is that appropriate? 

DEAN JOHNSON, FORMER PROSECUTOR:  Well, it might be a little extreme for a judge to express an opinion like that, but he‘s really expressing the reality.  After all, we‘re going to a grand jury on the Jackson case.  Remember what Oliver Wendell Holmes said, that...

ABRAMS:  Yes.

JOHNSON:  ... the prosecution can get an indictment on a ham sandwich...

ABRAMS:  But wait a sec.  If a judge...

JOHNSON:  Yes.

ABRAMS:  ... is basically saying the grand jury means nothing, then we might as well just throw out the whole grand jury process. 

JOHNSON:  Well, no, there is a constitutional right to either an indictment or a preliminary hearing, and that can serve a valuable function.  But the reality is that 99 percent of the time if there‘s a grand jury or if there‘s a preliminary hearing, the defendant is bound over for trial...

(CROSSTALK)

JOHNSON:  ... partially—but partially because the burdens of proof are so low...

ABRAMS:  I know.  I know.  Look, I know.  I say this all the time, but I just can‘t believe that the judge is basically treating it as if it‘s a foregone conclusion.  Mickey Sherman, am I overreacting? 

MICKEY SHERMAN, CRIMINAL DEFENSE ATTORNEY:  You are Dan and I guess I‘m supposed to be the defense (UNINTELLIGIBLE)...

ABRAMS:  Be whatever you want.

SHERMAN:  ... I‘ll let Natasha do that.  You know the bottom line is, I think it‘s refreshing that you have a judge who lives in the real world.  It‘s a sexual assault case.  You‘ve got a victim who says that he was assaulted.  You got a defendant who says he didn‘t do it, and that‘s it.  These cases go to trial, and the judge is doing nothing other than saying it like it is. 

ABRAMS:  Natasha, do you agree with that? 

NATASHA LAPINER-GIRESI, PUBLIC DEFENDER:  Oh you know, I was listening to the quote in context, and he might—I think he over spoke.  He shouldn‘t have said what he thought, that it‘s going to be bound over for trial, but here it‘s a he said-he said kind of case, and a grand jury is going to say we don‘t know.  We need more.  We‘re going to let a petit jury decide...

ABRAMS:  But you know—but here is my problem, OK?  This judge grants a gag order, OK, to prevent the lawyers from going out there and possibly poisoning the jury pool, right? 

LAPINER-GIRESI:  And then...

ABRAMS:  He doesn‘t want the jury pool to get poisoned by what these lawyers are going to say, and then he gets on the bench and says I expect there to be an indictment.  Talk about poisoning the jury pool. 

SHERMAN:  Hey at least—Dan, at least it wasn‘t as bad as when Nixon said that Charles Manson was guilty, which, of course, was a shocking revelation...

ABRAMS:  Yes.  No, but Dean, are you troubled by that from that perspective? 

JOHNSON:  I‘m not—again, I‘m not troubled by it in the context, and also...

ABRAMS:  No, take it from my context, though...

(CROSSTALK)

ABRAMS:  ... and that is this is a judge who has imposed a sweeping gag order saying he is concerned, which I think is probably unconstitutional, but nevertheless, a sweeping gag order which prevents anyone from talking about the case at all.  And so instead he comes up on the bench and says (UNINTELLIGIBLE) you know what, I fully expect that there‘s going to be—I mean these are grand jurors who are going home every day, and one of them is going to read, possibly—you know what, the judge said he expects there to be an indictment.

JOHNSON:  Yes, probably not the most diplomatic thing to say, but remember, too, even if there‘s not an indictment, in California law the prosecution even gets a second bite at the apple.  They could go seek...

ABRAMS:  I know...

JOHNSON:  ... another indictment.  They could go to a preliminary hearing.  So it‘s just a realistic statement of eventually this case is going to go to trial...

(CROSSTALK)

JOHNSON:  ... and I think what he is really saying is let‘s act as if this is going to trial so we respect all of the gag orders...

ABRAMS:  I know...

JOHNSON:  ... and all the formality...

ABRAMS:  ... I know.  I know that‘s what he is saying beyond that, but I‘ve got to tell you, when you impose this kind of sweeping gag order, the judge should abide by those same rules as well. 

All right, let me talk about this other issue, and that is the idea of the prosecutors preventing the defense team from talking to their own witnesses who they have found.  Dean, as a former prosecutor, can you possibly defend that? 

JOHNSON:  No.  If that‘s what happened—and we don‘t know all the facts...

(CROSSTALK)

JOHNSON:  We don‘t know what was said, but I‘ll tell you what I used to say as a prosecutor to any potential witness that came to me.  If you are approached by the defense investigator or defense attorney or whatever, you have the right to speak to them or not to speak to them.  That‘s your choice and that‘s all the prosecutor should be saying.  I am a little troubled by the way that the Jackson case has been prosecuted and the way the prosecutors have conducted themselves, and I think they are determined down there in Santa Barbara County to get an indictment and to take Michael Jackson to trial...

ABRAMS:  Mickey...

JOHNSON:  ... still, we don‘t know the underlying facts. 

ABRAMS:  Mickey, let me read...

JOHNSON:  We don‘t know what was actually said. 

ABRAMS:  ... let me read you from Mike Taibbi‘s report today.  He‘s our guy on the scene there.  He says it got to court, revealed prosecutors have been preventing grand jurors from witnessed from talking to Jackson‘s lawyers and investigators, even witnesses developed by the defense since the pop star was charged. 

SHERMAN:  That‘s reprehensible and I‘ve got to tell you, they‘ve got some serious trouble if they‘ve done that.  And you know, you are talking about the Jackson people talking to their own witnesses.  They‘re not allowed to forbid their own—I‘m talking about the state‘s witnesses from talking to the Jackson people just as...

ABRAMS:  I don‘t know about forbidding, but preventing you know...

SHERMAN:  ... you know what, they do it in a cute way.  They don‘t give as flowering speech as Dean would give.  You know they say well you can talk to them.  Of course, you know you‘re going to get in trouble and you know you‘re going to look like an idiot on the stand and they‘re probably going to box you in.  They do it with a wink and a nod, which is not very...

ABRAMS:  Our panel is sticking around because we‘re going to continue updating all the big legal stories of the day this half hour. 

When we come back, our legal team looks at Martha Stewart‘s call for a new trial.  Now both sides have weighed in.  The question—will she convince the judge because one of the jurors that convicted her lied about his criminal record?  That means she gets another trial. 

Plus, is Scott Peterson‘s trial going to get moved again?  His lawyers want it to happen.  He says too many potential jurors already have made up their minds. 

Don‘t forget your take on the show.  E-mails abramsreport@msnbc.com.  Include your name and where you are writing from.  I respond at the end of the show. 

(COMMERCIAL BREAK)

ABRAMS:  Continuing now with our trial updates.  The Martha Stewart case, the lingering question.  Will she get a new trial after a jury found her guilty of conspiracy, obstruction of justice, making false statements last month, Stewart‘s team asked for a new trial.  They say one of the jurors who convicted her lied on his questionnaire about past arrests and legal troubles.  In fact, they suggest the juror‘s characterization of the verdict immediately after his release from jury duty as—quote—“may be a victory for the little guys who lose money in the market because of these kinds of transactions” evidences a clear class bias on his part. 

The fact that he sought compensation from the media for post-trial interviews is also indicative of his motive to profit from his jury service and explains why he chose to omit important information from the questionnaire.  Now prosecutors are fighting back.  This week they claim that juror Chappell Hartridge never intended to lie and that Stewart‘s defense team is resorting to—quote—“personal attacks” to win a new trial.  They point out that Stewart‘s team never objected to other prospective jurors who disclosed past run-ins with the law. 

Their memo reads, “It is doubtful that Stewart believes her own argument that Mr. Hartridge‘s arrest would have served as a valid challenge for cause.  Completely unmentioned in Stewart‘s motion are the numerous prospective jurors who disclosed prior charges or court appearances on charges, but then went unchallenged by Stewart either prior to or at the voir dire process.”

Bottom line is the prosecutors are saying you guys didn‘t seem to have any trouble with people with arrest records when we were picking the jurors.  Let me bring my legal team in to weigh in on this.  Again, joined by Mickey Sherman, Dean Johnson and Natasha Lapiner-Giresi. 

All right, Natasha, it seems to me this is a really long shot motion for the defense.

LAPINER-GIRESI:  It really is a long shot.  I mean you have to show serious misconduct to have a verdict overturned.  The only thing that gives them a little bit of an edge here is the fact that he did lie and that afterwards he came out and he made all these statements to the media that this is a verdict for the little man.  Those two things together give them a little edge, but it‘s still really a long shot. 

ABRAMS:  But Mickey Sherman, they need to link up those two things.  I mean he can‘t just have lied and have made those statements. 

(CROSSTALK)

ABRAMS:  He has to have lied...

SHERMAN:  Yes.

ABRAMS:  ... in an effort to get on the jury...

SHERMAN:  Right.

ABRAMS:  ... so that he could make some statement and effectively...

SHERMAN:  Yes or...

ABRAMS:  ... corrupt the process. 

SHERMAN:  ... or he‘s going to lie about something that‘s really kind of relevant or germane to the issue.  Whether or not he lost money in the stock market, whether or not he‘s got...

ABRAMS:  Even if he lied about that, Mickey, she wouldn‘t have gotten a new trial.

SHERMAN:  Yes, it‘d be a closer shot than this.  You know the problem is—and it really ticks me off is the mediazation of these jurors.  I mean you‘ve seen it.  Hell, we‘ve both been parts of it, where the jurors are on television seven seconds...

ABRAMS:  What‘s the matter with that?

SHERMAN:  Well because it‘s fraught with problems, and the prosecutor is seeing this now.  If jurors get out and say things that they probably shouldn‘t say...

ABRAMS:  That‘s right.  What they do is they expose honestly the process, which is Dean Johnson that very often jurors don‘t play by the rules.  Very often jurors don‘t abide by judge‘s rulings.  Very often jurors aren‘t honest on jury questionnaires, but you know what, it doesn‘t get you a new trial. 

SHERMAN:  ... maybe not in this case...

(CROSSTALK)

ABRAMS:  Let me let Dean Johnson...

JOHNSON:  That‘s absolutely correct.  I mean everybody—every potential juror probably has some misconduct in their background.  That fact alone is not going to get anybody off.  You have to distinguish that from, say, lying about a felony conviction or something, which would disqualify the juror.  But if it‘s just misconduct, if it‘s just an expression of bias after the fact, that doesn‘t take the juror off.  That doesn‘t get you a new trial. 

(CROSSTALK)

JOHNSON:  Traditionally said, hey the remedy for that...

SHERMAN:  It depends on misconduct...

JOHNSON:  ... the remedy for that is your voir dire.  You should have filtered that out when you were picking the jury, and you don‘t get a new trial just on those grounds. 

SHERMAN:  Dean, but suppose a juror comes out and says you know during the jury deliberation one of us went out and went to the scene and we tried to reenact the crime and this is what happened.  You have to admit, when that stuff comes out—and it‘s going to come out—and if you interview enough jurors, you‘re going to find serious jury misconduct. 

JOHNSON:  Oh, but that‘s a very different thing.  We‘re talking—then we‘re talking about misconduct...

SHERMAN:  Right.

JOHNSON:  ... of a jury during the jury trial.  Not something that the juror has done in their past life or something that they may express after the trial is over.  That‘s very different and that‘s clearly grounds for a mistrial.

ABRAMS:  And Mickey—it‘s always ammunition for the defense team.  I understand that.  It provides an avenue for them to appeal.  They‘re not going to win, but it‘s honest.  I mean that‘s what happens. 

SHERMAN:  Yes, but it may not be honest.  If they, in fact, reveal something that shouldn‘t have happened, that‘s going to be a problem for the appeal process. 

ABRAMS:  Yes, but...

JOHNSON:  I do agree with Mickey to one extent though.  We are seeing a mediazation of the jurors.  We‘ve seen it in the Tyco case, the Stewart case, and now we‘re seeing it even...

ABRAMS:  Tyco is a different issue.

JOHNSON:  Yes, I know, but jurors should not be a central party or participant in the trial and it‘s almost come to the point where they are, and more and more because the trials are so high-profile, we‘re seeing jurors put under the spotlight just like the parties in the case, and we‘re seeing jurors emerge...

(CROSSTALK)

LAPINER-GIRESI:  But wait a minute Dan...

(CROSSTALK)

LAPINER-GIRESI:  ... aren‘t they—Dean is saying they‘re not a big part of the trial.  They are the main part of the trial.  They decide guilt or innocence, and if they‘re lying when you are picking them, when you are tying to pick a fair jury and you find out afterwards that they‘re not telling the truth, that is something the public should know. 

JOHNSON:  No...

(CROSSTALK)

JOHNSON:  What I‘m saying is that they should focus on their job in the trial...

ABRAMS:  All right.

JOHNSON:  ... which is to listen to the evidence, deliberate, and decide the case. 

(CROSSTALK)

JOHNSON:  If they‘re lying...

(CROSSTALK)

JOHNSON:  ... agendas and other outside activities...

(CROSSTALK)

ABRAMS:  But they‘re not...

(CROSSTALK)

ABRAMS:  ... but that‘s the thing...

(CROSSTALK)

ABRAMS:  See, that‘s the point Mickey.  They can‘t prove that he lied in order to get on the jury and corrupt the jury process.

SHERMAN:  No and...

(CROSSTALK)

SHERMAN:  ... the problem is you can‘t prove it.

ABRAMS:  Let me read you from Robert Morvillo, the attorney for Martha Stewart.  “The hypocrisy of the government‘s response to the motion of Martha Stewart for a new trial based upon jury misconduct borders on the unimaginable.” 

I mean come on.  Is that overstatement?  Mickey, would you write something like that? 

SHERMAN:  If I could be that clever I might.  I don‘t—I‘m not that smart.  The problem is, Dan, is we don‘t know why these people are lying to get on the jury.  All we know is that they want that interview at the end of the trial with Dan Abrams on THE ABRAMS REPORT.

ABRAMS:  Oh, come on. 

SHERMAN:  OK.  And they will say anything to get on to the big case.  It‘s not like a standard case where they‘re trying to get out of jury duty.

ABRAMS:  And jurors lie to get off cases too... 

SHERMAN:  But that‘s OK...

(CROSSTALK)

SHERMAN:  ... because you‘re not going to corrupt the process. 

ABRAMS:  All right.  Stay with us, all of you, because we‘re still doing our updates. 

Coming up, they‘re still trying to pick potential jurors in the Scott Peterson case.  Peterson‘s lawyer said too many of them are just not ready to be fair.  Mark Geragos says he thinks that most of the jurors are convinced Scott Peterson is guilty.  The question—will Peterson get another change of venue?  Will he get to move the case again?

Plus, is Governor Arnold Schwarzenegger turning into Donald Trump?  He wants to say to the California legislature you‘re fired, or at least you shouldn‘t be working full-time here anymore.  It‘s my “Closing Argument”. 

(COMMERCIAL BREAK)

ABRAMS:  Continuing with our Friday trial updates.  Coming—moving on to the Scott Peterson case.  Defense attorney Mark Geragos says with every day of jury selection, he‘s building an argument to get the trial moved again.  And it‘s moving at a glacial pace.  It seems this case won‘t be going to trial any time soon.  Now the judge set May 17 as the date to begin opening statements.  The question—might the defense team really get another opportunity to move the Peterson case and delay it again? 

I want to bring my legal team in on this—Mickey Sherman, Dean Johnson, and Natasha Lapiner-Giresi.  All right, Dean, you are out there.  What do you think? 

JOHNSON:  Well, actually as of Thursday afternoon we were just slightly ahead of the schedule for getting enough jurors to have this case go to opening statements on May 17.  The only thing that might throw a monkey wrench into the machinery is that Geragos may make the much fabled and much talked about motion for a change of venue.  That will be denied.  He could possibly take a writ up to the court of appeals.  That might slow things. 

ABRAMS:  Why will it be denied, Dean?

JOHNSON:  It‘s going to be denied because as time goes on, contrary to what Geragos says, it becomes more and more clear that we can get a fair jury.  We already have 29 people who say that they can be fair.  Once we have a pool of 70, we can put those people in a room.  The parties can exercise all their peremptory challenges, and we‘ll still have 18 people left over, which is 12 jurors and six alternates.  And we are on schedule to get those 18 people. 

ABRAMS:  Natasha, basically what Mark Geragos is going to say is look, we‘ve been trying.  We‘ve gone through all these jurors, and so many of them are coming to us and saying that we think he is guilty, and we have found a number, he‘ll say, that are stealth jurors...

LAPINER-GIRESI:  Right.

ABRAMS:  ... jurors who are lying about what they really feel in an effort to get on this jury and in an effort to convict Scott Peterson. 

LAPINER-GIRESI:  Exactly and I think that the slower this goes—the closer we get to that May 17 date, if they haven‘t reached their magic number, be it 70 or 80, I think his argument gets stronger and stronger.  And he has one stealth juror now, which there have been allegations that the woman was telling people I am going to convict him.

(CROSSTALK)

JOHNSON:  Dan, Dan...

ABRAMS:  But do you think that‘s going to be enough, though, Natasha, to get him another change of venue? 

LAPINER-GIRESI:  Well, that‘s why I‘m saying I don‘t think it‘s ripe right now.  I think the closer we get to the May 17 date that the judge set, the better chance he has of possibly moving it. 

ABRAMS:  All right.  Dean, go ahead. 

JOHNSON:  Dan, let me point out a couple things.  First of all, Geragos is only telling part of the story.  As one veteran reporter told me the other day, the jurors are all saying the same thing.  First of all, everything I have seen on TV leads me to believe that Scott Peterson is guilty, and, secondly, I don‘t believe anything I see on TV.  The other thing I wanted to point out, this stealth juror may very well be a myth.  We had what everybody was calling a Perry Mason moment in court when Geragos came up and started reaming this lady who was supposedly the stealth juror.  She stood up under cross-examination very well. 

ABRAMS:  Why don‘t we—let me take a step back and explain.  This is a woman who had been taking a ride to go gambling on a bus and apparently some people from the bus said that she talked about how Scott Peterson was guilty and she would love to see him fry or something like that.  She then goes into the jury pool, doesn‘t say anything about that, says she could be fair.  They bring in a witness who says, oh, she couldn‘t be fair.  Go ahead, Dean.  Finish the story. 

JOHNSON:  No, actually what happened was Geragos had claimed to have a witness who was on the bus who heard her say that she was going to lie her way on to the jury and make sure that Scott Peterson would—quote—“get what he deserved.”  Since then, members of the media in the area have gone out and interviewed as many as five or six people who were surrounding this woman in the seats on the bus, including one retired...

ABRAMS:  All right.

JOHNSON:  ... California highway patrol officer.  They say they never heard anything like that...

ABRAMS:  All right...

JOHNSON:  They discussed Peterson, but she didn‘t say...

ABRAMS:  Mickey, I want you to listen to this quote for this sound bite from Mark Geragos talking about how this is not the first time, and he thinks that these stealth jurors are a big problem. 

(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 gravely 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:  Mickey. 

SHERMAN:  I totally agree and I don‘t think it‘s a stretch.  And I don‘t think there should be any great time limit on the measure of justice...

ABRAMS:  Do you think he is going to move this—get to move this case again? 

SHERMAN:  I think if it‘s deserved, he will, and he should.  I mean, you know, granted, he is not going to be able to go any place that they haven‘t heard about the case, but if that—particularly the jury pool is so tainted and he is not like making these things up.  And he has to document it either by the testimony...

ABRAMS:  But he has to show it‘s because it‘s that county.  I mean he has to show that another county in California would be—even beyond that.  Look...

SHERMAN:  Yes, but...

ABRAMS:  ... that‘s only part of it.  I mean he‘s got much bigger...

SHERMAN:  But he‘s going to show that this...

JOHNSON:  Dan...

SHERMAN:  ... pool is poisoned.  He‘s going to show that this pool is poisoned and I think he has demonstrated that with the nature of the questioning, and also, I‘m sure he has got some public opinion and market research stuff...

ABRAMS:  Dean, I‘ll give you the final word because you‘ve been going to court.  Let‘s listen.  Dean.

JOHNSON:  Well Dan, Geragos has been raising the specter of the stealth juror.  It‘s completely a red herring.  Even if the case were moved, which it‘s not going to be, that doesn‘t solve the problem of the stealth juror.  Do you think there are going to be jurors with hidden agendas if he moves the case, say to Los Angeles, which is where he wants to take it.  That‘s going to exacerbate the problem, if anything.  This case is going to be tried. 

ABRAMS:  All right.

JOHNSON:  It‘s going to start on May 17, and it‘s going to be tried in San Mateo County. 

ABRAMS:  All right.  We shall see.  Mickey Sherman, Dean Johnson, and Natasha Lapiner-Giresi, thanks a lot.

JOHNSON:  Thanks Dan.

ABRAMS:  Coming up, former action hero and current California Governor Arnold Schwarzenegger wants to say asta la vista to the state legislature working full-time.  He gets my “Closing Argument”. 

Plus, I get a special visit from this guy.  One of my biggest and yet littlest fans.  Coming up. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, “Your Rebuttal” about Condoleezza Rice‘s testimony.  Plus, you‘ll meet my youngest fan.  Stay with us. 

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why you‘ve got to love Arnold.  He blasts into the California governor‘s office calling for a better working relationship between the governor and the state legislature.  He vows to work with them closely to solve many of California‘s problems.  Well, this week a bipartisan solution.  Arnold proposes to essentially pull a Donald Trump and tell them all you‘re fired or at least sort of.  He said the legislature should become part-timers rather than having full time positions. 

California is one of only three states where the state legislators have full time jobs.  My favorite part was his—quote—“spending so much time in Sacramento without anything to do, then out of that comes strange bills.”  He wouldn‘t elaborate.  While vacationing in Hawaii, he compared it to pre production and post production of a movie, saying that people perform best while on deadlines.  Look, he may be right, but it‘s not worth the expense and that the state‘s business can be concluded in half the time, but I just love the irony.

NEVILLE: ere‘s Arnold on an exclusive expensive vacation while the legislators who make $99,000 a year working at home to reform the state‘s worker‘s comp system.  Senate President John Burton said—quote—“while I‘m working my “blank” off, he is pontificating from Hawaii?”  That‘s probably what got him elected.  He‘s direct.  He‘s confident and he really doesn‘t seem to care much what people think, but he certainly keeps it interesting. 

All right, I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  Last night we spent a lot of time on national security adviser Condoleezza Rice‘s testimony before the 9/11 commission.  She answered questions about what she knew, when she knew it, what if any action could have been taken to prevent 9/11. 

Marc Saval from Weston, Florida writes, “She gave long wordy answers or responses for the questions from the Democrats, allowing them to ask a limited number of questions.  Yet when she got the softball questions from the Republicans, her answers were very short.”

From Winston-Salem, Jess Woodward, “She gave heated monologues talking around and around the tough questions.  Condoleezza Rice always has an answer, but it is not often the answer to the question that was asked.”

Joseph E. Hartoebben, Jr. from Quake (ph), Kansas.  “Did you notice that when Dr. Rice replied to a question she looked down?  This implies that the whole testimony and questions and answers were rehearsed or as if reading a script.  I do not know about your legal experiences, but her testimony and the style is not permissible in a court of law because of the implications.”

Really?  In what courtrooms are witnesses not permitted to look down?  Make what you want of her testimony, but you can‘t fault her for coming in with notes. 

Kelly Sullivan from New York City thinks Dr. Rice was treated unfairly.  “I guess the senators didn‘t really care to hear her history of the events.  They came off like boors talking over her after she uttered half a sentence.”

Also on the program last night, we talked about a proposed FCC fine of nearly a half million dollars for allegedly indecent material on Howard Stern‘s radio show.  We debated whether the punishment fit the crime. 

Matt Miale from Los Angeles, California.  “These fines are nothing more than attempts at modern day book burning.  It could and should be argued that by preventing me from listening to indecent radio they are in effect forcing me to listen to acceptable or decent radio.  By whose standard?”

Bethany Brauning believes television programming is the problem.  She writes, “The people who are pushing to have him taken off the air because of the influence he may have on children should take a good look at television.  When are they going to go after the producers of shows that tell our children that it‘s OK to have premarital sex, multiple sex partners, and marry a total stranger from money.”

Bethany, so you want to go beyond indecency and you want to legislate morality on TV?  Encouraging networks to provide more family friendly TV is one thing, but legislating it? 

All right, I‘ve got a little extra time here.  We‘ve got a special program—a special guest on the program tonight.  One of my biggest fans who has been watching my career for some years now.  For the past few years, Matthew from Warrington, Pennsylvania, has watched this program religiously from the Chandra Levy disappearance to Scott Peterson, David Westerfield and Martha Stewart. 

But what makes my next guest so special, he‘s only 4 years old.  That‘s right.  Four-year-old Matthew watches the show almost every night and watches his watch almost as closely.  Apparently, he goes as far at times as kissing the screen during my reports.  He even names some of his toys Dan.  And according to his mother, Matthew‘s first sentence was, hello, Dan. 

He allegedly said that while looking at an autographed photo that I had sent him.  He and his mom initially put together a Web site for fans of the show who were under 3, but now as Matthew has come of age, so has the Web site.  Now it‘s called Dan‘s Under Five.  You can see the address there on the screen.  So we figured it is time to have Matthew on the show.  And here is Matthew. 

Hi, Matthew.  Matthew, you‘re suddenly shy?  You‘re looking at yourself on the television, aren‘t you?  Because you‘re used to looking at me, right? 

UNIDENTIFIED MALE:  Yes. 

ABRAMS:  All right.  So you usually watch the program, right? 

UNIDENTIFIED MALE:  Yes. 

ABRAMS:  And what do you like about it?  Do you like the pictures and you like what we do on the show? 

UNIDENTIFIED MALE:  What do you think?  Ask mom (UNINTELLIGIBLE). 

ABRAMS:  Yes.  Mom tells you it‘s 6:00.  It‘s time to watch the show, right?

UNIDENTIFIED MALE:  Yes. 

ABRAMS:  And then you watch the show every night. 

UNIDENTIFIED MALE:  Yes. 

ABRAMS:  Now, what is the most important issue of the day to you?  I can‘t believe it‘s the 9/11 testimony.  I‘m thinking it is more along the lines of Scooby Doo. 

UNIDENTIFIED MALE:  Yes (UNINTELLIGIBLE) Scooby Doo. 

ABRAMS:  Scooby Doo is big, right? 

UNIDENTIFIED MALE:  Yes. 

ABRAMS:  You were showing me your watches before. 

UNIDENTIFIED MALE:  Yes. 

ABRAMS:  Now show us a little bit more about your watches.  This is Matthew, our—one of the biggest fans of the show.  Matthew, tell me about your watches there. 

UNIDENTIFIED MALE:  One of them pops up like this...

ABRAMS:  Right.

UNIDENTIFIED MALE:  ... and one of them doesn‘t. 

ABRAMS:  Right.  And the other one you actually use to tell time. 

UNIDENTIFIED MALE:  Yes, this one I use to tell time.  I can‘t tell time with this one yet. 

ABRAMS:  Yes.  So Matthew, is it exciting for you to be here at the studio? 

UNIDENTIFIED MALE:  Yes. 

ABRAMS:  Did you like coming here? 

UNIDENTIFIED MALE:  Yes. 

ABRAMS:  Do you like watching yourself over there? 

UNIDENTIFIED MALE:  Yes. 

ABRAMS:  Who is that guy?  Who is that guy? 

UNIDENTIFIED MALE:  Me and you. 

ABRAMS:  Me and you, right? 

UNIDENTIFIED MALE:  Yes. 

ABRAMS:  All right.  Matthew, can I shake your hand? 

UNIDENTIFIED MALE:  Yes. 

ABRAMS:  It‘s great to see you.  Thank you so much - look at that.  You can see us shaking hands and do you want to hit the gavel there, Matthew? 

UNIDENTIFIED MALE:  Yes.

ABRAMS:  Just soft. 

(SOUNDS)

ABRAMS:  Matthew, thank you very much for coming in.  It was great to see you and thank you so much for watching the show.  I appreciate it. 

UNIDENTIFIED MALE:  That‘s OK.  (UNINTELLIGIBLE) now I‘m going to have to (UNINTELLIGIBLE) and thank you (UNINTELLIGIBLE). 

ABRAMS:  All right, got to go.

END   

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