updated 4/13/2004 11:42:03 AM ET 2004-04-13T15:42:03

Guests:  Clint Van Zandt, Mike Ackerman, John Small, Margaret Love, Jean Casarez, Michele Hemphill, Richard Schulte

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

    

DAN ABRAMS, HOST:  Hi, everyone.  More kidnappings, more hostages in Iraq.  The U.S. says it will not negotiate with terrorists.  But how about behind the scenes?  What‘s going on to try to rescue the Americans who have been taken captive?  We‘ll talk to two people who have successfully freed hostages. 

The White House releases the confidential August 6, 2001 briefing memo on bin Laden and al Qaeda.  Yes, it‘s titled “bin Laden determined to strike in the U.S.” and yet it may not be as damaging to the Bush administration as some suggested. 

Plus, thousands of Martha Stewart supporters have signed a petition to ask President Bush to pardon Stewart.  That‘s right.  Pardon her, throw out her conviction.  Do they really think they have a shot?  We‘ll talk to the man leading the petition drive. 

But first, nine Americans now missing or unaccounted for in Iraq, missing since Friday‘s attack on a fuel convoy west of Baghdad.  Two are military personnel, seven believed to be civilian contractors working for the U.S. company Kellogg, Brown & Root, a subsidiary of Halliburton.  One of the civilians, Thomas Hamill, of Macon, Mississippi confirmed he was seen here on this video on Al Jazeera yesterday.  His captors warned if the siege around Fallujah was not lifted within 12 hours, Hamill would be treated far worse than the four contractors who were killed and burned in Fallujah on April 1.  That deadline has come and gone with no word as to his condition. 

So far—thus far, close to 50 have been taken hostage or are unaccounted for in Iraq.  The response from the U.S. administrator in Iraq...

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  More than the 30 hostages have been taken.  Will you be negotiating for their release? 

L. PAUL BREMER, U.S. ADMINISTRATOR IN IRAQ:  No, I—we don‘t negotiate for hostages‘ releases.

(END VIDEO CLIP)

ABRAMS:  This afternoon, Arab network Al Jazeera reporting 11 Russians working for an energy company were kidnapped today.  Insurgents are still holding those three Japanese civilians taken hostage last week.  They threatened to burn them alive.  As far as we know, none of the hostages have been killed.  And while the official U.S. policy is no negotiation, we ask what‘s maybe happening behind the scenes to keep the hostages alive and possibly to find and kill those responsible. 

My first guest has been behind the scenes in hostage negotiations.  Clint Van Zandt is a former chief hostage negotiator with the FBI.  He has trained international police in negotiation techniques and Mike Ackerman, CEO of Ackerman Group, which specializes in hostage negotiation and the recovery of kidnapped victims.  Thank you both very much for coming on the program.

All right.  Clint, give us the big picture first as to what may be happening behind the scenes here with regard to these Americans who have been kidnapped. 

CLINT VAN ZANDT, FMR. FBI SPECIAL AGENT:  Well, part of the challenge, Dan, is figuring out who actually has the Americans and, as you say, the other plus or minus 50 hostages in these last couple of weeks.  You‘re going to have some groups that say they have them and don‘t.  You‘re going to have some groups that are criminals, some groups that are terrorist, some are doing it for political reasons.  Some want to exchange the hostage for prisoners that we‘re holding right now.  So, the agendas that are going to be out there are challenging, but the first thing one has to do is you‘ve got to make some back water channels.  You‘ve got to get in and make some contacts with groups and start a dialogue.  That‘s what negotiation is...

ABRAMS:  Whose view...

VAN ZANDT:  ... a two-way conversation...

ABRAMS:  Hey Clint, when you say “you have to,” who are you talking about?  Not the U.S. government. 

VAN ZANDT:  No, it is not going to be the U.S. government officially.  And of course we see the U.S. government has always said it‘s our policy not to negotiate.  Well Dan, as an FBI agent, I‘ve been overseas and I‘ve been involved in negotiations for U.S. citizens.  And even though the U.S.  government is not going to sign a check out of its Treasury, they may either participate with someone like myself there as an adviser or you‘re going to use people like Mike Ackerman‘s group and other groups in the country who are experienced negotiators, who are civilians, who have security, crisis management backgrounds who get in the there and do these kind of backdoor negotiations, kind of with the consent of the U.S.  government, at least the government is not blocking while it‘s going on. 

ABRAMS:  All right.  So, Mr. Ackerman, you or one of your people land on the ground in Iraq and do what? 

MIKE ACKERMAN, HOSTAGE NEGOTIATOR:  Well, there‘s not much that can be done in a political case.  In other words, if political demands are being levied, no private group has the power to get prisoners released or to have a siege lifted or anything like that.  If it‘s a ransom case, it‘s different...

ABRAMS:  How about, for example...

ACKERMAN:  ... usually do have access to money.

ABRAMS:  But how about, for example, contacting local clerics, et cetera, et cetera.  I mean is that something that your organization might do?

(CROSSTALK)

ACKERMAN: Absolutely. 

ABRAMS:  Tell me about it. 

ACKERMAN:  I would—I‘m relatively certain that that is what is being done.  There are contacts being made with local clerics who are trying to dissuade the kidnappers from holding these hostages, trying to convince them that this is not an Islamic thing to do.  And there have been several hostages released in the last 24 hours.  So, there is a dialogue going on and it has been to a degree successful. 

ABRAMS:  And is it important, Mr. Ackerman, to distance yourself from the government?  I mean when you send—you know you‘re hired by a private company, for example, and they say, look, we‘ve got people over there who have been captured, they‘ve been kidnapped.  We need you to do what you can.  Do you intentionally sort of position yourself when it comes to these local clerics and these tribesmen or whatever it may be as sort of, hey, look, we‘re not part of the government.

ACKERMAN:  Well, beyond that, we probably wouldn‘t use Americans at all in these cases to get to these local people.  We would use locals or we would use other Arabs. 

ACKERMAN: And, Clint, I would assume that‘s an important point, is it not, is to find the right people to go in and try and do your negotiating, your middle men.

VAN ZANDT:  Well it is, Dan.  And you wind up sitting there, as I have done before, you have to sit there and coach them.  You have to make sure there are certain words and phrases they don‘t use.  You have to make sure they don‘t agree to whatever it may be, a multimillion dollar ransom right off the bat or, as Mike says, political concessions.  You‘re not going to be able to follow through on that.  So you know, in most cases, you are going to want to paint a picture.  These are not combatants.  These are citizens of other countries that are just hard-working people like this American who‘s being held right now, who is just trying to eke out a living just like the hostages holders are doing.  So, you try to make this common bond between them, number one, so they won‘t hurt him, hopefully.  And number two, so you‘ll eventually get him released. 

ABRAMS:  And Clint, you had said that the insurance companies actually have a huge stake here and that they may actually send in people to try and help.

VAN ZANDT:  Well, there is what‘s called K&R, kidnap ransom insurance that some companies have, some companies some don‘t.  I can tell you up front, Dan, we‘re never going to find out because usually it is a condition of the policy you cannot acknowledge that you even have this insurance.  And then that insurance helps to pay for professionals to come in and try to conduct these negotiations.  Now might it pay or not pay for a ransom?  Well, that‘s down the pike. 

ABRAMS:  Yes.

VAN ZANDT:  And, again, we don‘t want to be paying money that is going to be turned around and used as weapons against coalition forces either. 

ABRAMS:  Yes and bottom line, Mr. Ackerman in this kinds of cases, you point out the distinction early on, it‘s just a lot harder.  I mean there‘s just not a sort of typical route to take, is there? 

ACKERMAN: Much more complex.  And I would doubt that money would change hands.  I think that there are a lot of complex negotiations going on in Iraq now and the hostages are one piece of that complex negotiation.  And General Abizaid said today that the crisis may be resolved in a uniquely Iraqi way and that would mean through negotiation and for the hostages‘ sake, we can only hope that that negotiation is successful. 

ABRAMS:  All right.  Mike Ackerman and Clint Van Zandt, thanks very much.  And we are certainly hoping and praying for the safe release...

(CROSSTALK)

ABRAMS:  ... of all those people who are, you know, just hard workers who were there in Iraq trying to do their jobs and appears that 50 foreigners in total, nine Americans, including two soldiers, have been kidnapped. 

Coming up, it may have been the most quoted document from the 9/11 hearings.  Now the public gets to see the controversial August 6, 2001 White House memo, entitled “bin Laden to strike in the U.S”.  We ask—so how big a deal is it really? 

And how about Janet Jackson‘s parody of her breast-bearing episode while playing Condoleezza Rice on “Saturday Night Live”?  We‘ll show you the...

(LAUGHTER)

ABRAMS:  ... highlights. 

And there‘s a movement afoot, thousands of Martha Stewart supporters, they‘re lending their names to a petition to call on President Bush to pardon Martha Stewart.  Do they stand a chance?  We‘ll talk to the man organizing the petition. 

What do you think?  Your e-mails, abramsreport@msnbc.com.  I‘ll respond at the end of the show. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, that August 2001 memo about the threat bin Laden posed to the U.S. It was released this weekend.  We‘ll ask a former national security adviser to both Clinton and Bush, how big a deal is it and is he surprised since he hasn‘t seen it until now? 

(COMMERCIAL BREAK)

ABRAMS:  Over the weekend, the White House declassified the presidential daily briefing memo from August 6, 2001, entitled “bin Laden determined to strike in U.S.”  That memo is at the center of a firestorm over what the administration and intelligence community knew before the September 11 attacks.  President Bush repeated today that while the document talks about Osama bin Laden‘s desire to hijack planes and target the U.S., it didn‘t warn of an immediate threat. 

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  There was nothing in there that said, you know, there is an imminent attack.  There was nothing in the—in this report to me, that said, oh, by the way, we‘ve got intelligence that says something is about to happen in America. 

(END VIDEO CLIP)

ABRAMS:  So, what exactly does the memo say?  NBC‘s Rosiland Jordan has more from the White House. 

(BEGIN VIDEOTAPE)

ROSILAND JORDAN, NBC NEWS CORRESPONDENT (voice-over):  The August 6, 2001 PDB, less than two pages long, the names of three foreign intelligence services blacked out to protect national security.  It contains details, which critics say should have been a warning to President Bush.  Al Qaeda not only wanted to attack the U.S., but had been planning to do so since the mid 1990‘s.  It recounted the case of an al Qaeda operative caught trying to drive from Canada to the U.S. with a car filled with explosives.  The target—LAX New Year‘s Eve 1999. 

The millennium plotting in Canada in 1999 may have been part of bin Laden‘s first serious attempt to implement a terrorist strike in the U.S.  and the PDB included an update on more recent FBI activities, including an awareness of patterns of suspicious activity in this country, consistent with preparations for hijackings.  And the fact that the FBI and the CIA were investigating a call to our embassy in the UAE in May saying that a group of bin Laden supporters was in the U.S. planning attacks with explosives.

White House officials insist the paper was a historical and analytical answer to the president‘s questions about al Qaeda, that there was nothing strong enough for the U.S. to take action right then.  A senior administration official told reporters Saturday night the document contradicts the myth the president was warned about September 11 and then did nothing to stop it. 

(on camera):  NBC News analyst Roger Cressey who was Richard Clarke‘s deputy here at the White House in the summer of 2001, said neither he nor his boss was told about the pattern consistent with hijacking activity.  He said that was information Dr. Rise should have told them. 

Rosiland Jordan, NBC News, the White House. 

(END VIDEOTAPE)

ABRAMS:  And Roger Cressey joins us now.  He served on the National Security Council staff from 1999 to 2001.  Thanks a lot for coming on the program.  All right, before...

ROGER CRESSEY, FMR. NATIONAL COUNCIL MEMBER:  Good to see you, Dan. 

ABRAMS:  ... before this became public, you said I‘d love to see this thing.  I really want to see exactly what was in that memo.  Now that it‘s come out, you‘re saying, according to Rosiland there, that it‘s more you think incriminating to the Bush administration than you expected?

CRESSEY:  Well, no, it‘s not—there‘s no smoking guns in there that had they taken this one piece of data they could have stopped 9/11.  I think the reference to the FBI passage is very interesting.  Dan, it‘s not a question of whether or not there was actionable intelligence in here, but was there actionable information and that FBI passage struck me as very interesting and it‘s something that had we known about at the time, we certainly would have followed up on it. 

ABRAMS:  And you‘re referring where it says—let me read both of these actually.  First that the FBI information since that time, meaning 1998, indicates patterns of suspicious activity in the country, consistent with preparations for hijackings or other types of attacks, including recent surveillance of federal buildings in New York.  It goes on, the FBI is conducting approximately 70 full field investigations throughout the U.S. that it considers bin Laden-related.  But I‘ve got to believe that the Clinton administration got similar types of warnings about the threat of al Qaeda.  I mean a lot of what they were talking about in that memo was with regard to the late 1990‘s about how they might you know go about trying to rescue the blind sheik (ph) by using planes, et cetera.

CRESSEY:  Well, as Dr. Rice said, this was predominantly an analytic, historical piece...

ABRAMS:  And you agree with that? 

CRESSEY:  ... and the front part of the PDB certainly corroborates that.  But Dan, we‘re talking about the summer of 2001.  The Clinton administration was not in power.  What I‘m referencing is the end of the PDB where it talks about this pattern of suspicious activity, relatively recent information.  So I think what the 9/11 commission is going to ask the director of the FBI, Tom Pickard, at that time, as well as the director of the CIA, what were you doing to follow up on this type of information, that was referenced in the PDB.

ABRAMS:  And in terms of the distinction between what the president can, should do versus the FBI—I mean I think that is a very good point with regard to what we‘re going to be seeing tomorrow and the days ahead in the 9/11 commission.  We see a lot of the FBI honchos, both present and former testifying, that they‘re going to have a lot of questions that they have to answer.  But does that, do you think, translate up to, say, well, the president should have done X, Y, or Z as a result of this and that might have made the difference? 

CRESSEY:  Now, look, it‘s not one single act.  This is one piece of a jigsaw puzzle that the 9/11 commission is putting together, to give a comprehensive understanding of all the missteps, both Republican and Democrat, Dan that went into allowing 9/11 to take place.  I think that‘s going to be the focus.  Look, the president received this type of information.  The question is, what was done in response?  Was it just, OK, got it.  Let me know if you pick up anything else, or was it this is very interesting, now tell me more about what you know. 

What are these 70 investigations related to right now?  Are any of them related to the threat environment we‘re now dealing with in the summer of 2001?  Those are the type of questions that I think the 9/11 commission are going to ask. 

ABRAMS:  And the commissioner of the 9/11 commission, Tom Kean, has also asked now that a memo to President Clinton with regard to al Qaeda be declassified.  “A”, do you know anything about that particular memo and, “B”, if not, do you think it might have similar types of warnings in it? 

CRESSEY:  I couldn‘t tell you what memo he is referring to.  But we received a regular stream of threat reporting.  At least from the time I started in November ‘99 through the end of my tenure, which was October 2001.  So, I‘m sure there will be some information in there that is related to an al Qaeda threat inside the United States. 

ABRAMS:  Bottom line, does this memo, now that you‘ve seen it, have more or less information in terms of warnings than you had expected? 

CRESSEY:  Again, I think it is actionable information.  It has a

little bit more than I expected and I think what the FBI was doing, the

reference in here to bureau activity is what the commission is going to...

ABRAMS:  Yes.

CRESSEY:  ... focus on the most. 

ABRAMS:  I think it‘s a fair point.  Roger Cressey, thanks a lot for coming on the program. 

CRESSEY:  Good to see you, Dan. 

ABRAMS:  Coming up, there have been controversial presidential pardons in the past, but how about Martha Stewart?  Thousands of her supporters are signing a petition to ask President Bush to just do that.  We‘ll talk to the man leading the drive. 

Plus, a former Justice Department attorney knows these pardons well, he‘ll answer the question that I ask, which is, come on, she doesn‘t really have a shot, does she? 

And Jayson Williams‘ defense team is asking the judge in the former NBA star‘s manslaughter trial to throw out all the charges.  Why?  They say the prosecution got one of its witnesses to falsify a report.  Could it mean that he walks out of court?  We‘ll get an update from the courthouse.

(COMMERCIAL BREAK)

(NEWS BREAK)

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

ABRAMS:  Welcome back.  Supporting Martha Stewart is one thing.  Many are angry at her convictions and the fact she‘ll likely serve time.  Many of her defenders have taken her cause to the Internet.  Well now one of those Web sites is circulating a petition to get Martha Stewart a presidential pardon.  That‘s right.  They‘re hoping she will essentially get a free pass, forgiving her of the crimes a jury found her guilty of. 

So far, they‘ve collected more than 12,000 signatures.  Now the Constitution gives the president the power to grant clemency to convicted felons.  Article two, section two reads “The president shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”  The power is pretty broad, but presidential pardons are not so easy to come by. 

The first President Bush granted pardons to only 74 people.  President Clinton 395 in two terms.  The current president has only pardoned 12 people since taking office.  Pardons have been granted to those convicted on charges of drug trafficking, transporting illegal aliens, in many cases white-collar crimes.  The president even pardons a turkey each year before Thanksgiving.  But almost every person pardoned by any president that has served some or part of their prison time.  Martha Stewart hasn‘t even been sentenced yet. 

Joining me now is John Small, who is leading the crusades on his Web site, savemartha.com.

JOHN SMALL, EDITOR, SAVEMARTHA.COM:  Hey, Dan. 

ABRAMS:  And Margaret Love, former pardon attorney for the Justice Department from 1990 to 1997.  She was part of the process recommending cases for pardon to the president. 

All right.  Mr. Small, first let me start with you.  You know, you understand that this is like a one in a hundred million shot, right? 

SMALL:  Hey, if George Steinbrenner and Richard Nixon could receive pardons, Martha Stewart could certainly receive a pardon.  You know this idea grew out of a brainstorming session that we had on the “Save Martha” chat room the weekend of the verdict and it was really like a wake that weekend, Dan.  We were all very, very upset and people said we have to do something.  So we put up the petition to George Bush, to President Bush to ask him to pardon Martha Stewart because we feel like she didn‘t get a very good process throughout this entire trial, through the investigation and the trial. 

ABRAMS:  Let me read a text from part of your petition.  Sir, we implore you to empower any agency that might offer some relief from the terrible injustice done to a woman who has brought happiness, personal enrichment and joys to the lives of millions of her devoted readers, viewers and fans.  It‘s our assertion that Martha Stewart deserves a presidential pardon in this case and we are humbly asking you to grant it. 

Let me ask you a question Mr. Small.  I mean apart from the fact, you know many people can argue—you‘ve probably seen my editorials on this program...

SMALL:  Yes, I sure have. 

ABRAMS:  I‘ve long believed that she did get special treatment here. 

That she was singled out...

SMALL:  Yes, thank you. 

ABRAMS:  That she likely wouldn‘t have been prosecuted if she were Martha Jones, but I‘ve also said...

SMALL:  That‘s right.

ABRAMS:  ... that she‘s guilty from watching the testimony in this case and that she‘s guilty.  And if she‘s guilty, that she should serve time.  Do you disagree with me...

SMALL:  I...ABRAMS:  ... that the evidence proved that Martha Stewart was guilty? 

SMALL:  I was in the trial every day for the entire six weeks, Dan, and I do disagree with you.  Martha Stewart was not tried...

(CROSSTALK)

SMALL:  Martha Stewart was crucified. 

ABRAMS:  But that‘s not what I‘m asking.  I‘m not asking about the process...

(CROSSTALK)

ABRAMS:  I‘m asking about the facts.  I‘m asking you, do you think—not whether it was unfair the way she was prosecuted...

SMALL:  Yes...

ABRAMS:  I‘m asking you whether you really believe Martha Stewart‘s defense, which the jurors rejected?

SMALL:  The investigation and the trial, I thought, was really off track from the beginning because everyone thought this was about insider trading...

ABRAMS:  You‘re not answering my question.  Because you know...

SMALL:  They thought this was about insider trading...

ABRAMS:  ... I agree with you on that one. 

SMALL:  ... and they went to other charges Dan...

ABRAMS:  I agree with you about that part.  I agree with you about that part. 

SMALL:  So, that‘s a key issue. 

ABRAMS:  No...

SMALL:  ... that‘s a key issue.

ABRAMS:  ... but answer my question.  Do you think, based on the evidence in this case, that Martha Stewart and her defense team were telling the truth when they said they had this...

(CROSSTALK)

ABRAMS:  ... preexisting order and that Doug Faneuil...

(CROSSTALK)

ABRAMS:  ... the star witness was a total liar? 

SMALL:  Dan, I think you can indict a ham sandwich.  I think you can convict a souffl’, OK...

ABRAMS:  (UNINTELLIGIBLE) Mr. Small, even you...

(CROSSTALK)

ABRAMS:  ... even you think she‘s guilty...

SMALL:  Dan, I think...

ABRAMS:  (UNINTELLIGIBLE)

SMALL:  ... I think that this should have been...

ABRAMS:  All right.

SMALL:  ... a civil matter, not a criminal trial. 

ABRAMS:  Let me bring in...

SMALL:  Martha Stewart is not Jesus Christ and we should not...

ABRAMS:  All right.

SMALL:  ... crucify her and expect her blood to cleanse away our sins...

ABRAMS:  You got to—Mr. Small, you‘ve got to get someone out there publicly who will defend the facts and say she‘s not guilty, she‘s not guilty because apparently you agree with me that she...

SMALL:  Yes.

ABRAMS:  ... that she seems to be guilty of the charges. 

SMALL:  Even if she is guilty...

ABRAMS:  I understand about the process...

SMALL:  ... of everything, Dan, she didn‘t deserve this treatment.

ABRAMS:  I get it.  Look...

SMALL:  Look, her company is in jeopardy. 

ABRAMS:  Look, I know...

SMALL:  She could go to jail. 

ABRAMS:  All right.

SMALL:  The whole thing is out of control. 

ABRAMS:  Margaret Love, let‘s talk about this issue of getting a pardon.  Look, Martha Stewart, “A”, I assume has no chance, right? 

MARGARET LOVE, FMR. U.S. PARDON ATTORNEY:  Well, I think it is probably unlikely.  This president has not shown himself to be very enthusiastic about pardoning generally.  And ordinarily it‘s very rare to have the president reach right into a case when it‘s still being tried before a person‘s even been sentenced. 

ABRAMS:  But let‘s now talk practically.  You‘ve now given us a sort of law school type analysis.  The bottom line is Martha Stewart has got no shot, right? 

LOVE:  Oh, I‘d say that‘s—I wouldn‘t put any bets on it. 

(LAUGHTER)

ABRAMS:  What is the process?  How does it work for someone to get a pardon?  I mean you‘ve got this petition out there.  That‘s just part of the process, right?  I mean how much would it matter to you when you were the pardon attorney if you got a petition with 12,000 signatures that says this person unfair, look at the case again. 

LOVE:  Well, in the first place, I think I‘d like to have her apply rather than just people apply for her.  That‘s one of the things that you have to seek forgiveness.  You have to be asked—you have to ask for a pardon.  That‘s the beginning of it.  And then there is a process of recommending it in the Justice Department and since the Justice Department is the one who‘s prosecuting her, I think it is pretty unlikely that the Justice Department would recommend a pardon.  And President Bush has said all along that he is going to follow the Justice Department recommendations in cases...

(CROSSTALK)

ABRAMS:  Yes.  Go ahead.  Continue, please. 

LOVE:  No, I was just going to say that I think that if she goes through the ordinary process, which is extremely unlikely, that she would get a pardon.  Very rare. 

ABRAMS:  Mr. Small, do you know whether Martha Stewart is planning on asking herself for a pardon?  And also let me ask you how well do you know Martha Stewart? 

SMALL:  Well, I was in the trial in the court every day.  She‘s dropped by to say hello at the trial, but other than that, I don‘t know her.  But what we do know is she wasn‘t on trial for insider trading...

ABRAMS:  OK.  Come on...

SMALL:  ... if she didn‘t do the crime...

ABRAMS:  ... I understand, but let‘s try and focus...

SMALL:  ... if she didn‘t do the crime, but she‘s certainly...

ABRAMS:  All right, I‘m happy to let you put up your thing.  I love the props...

(CROSSTALK)

ABRAMS:  ... but I want to—you can hold up the prop as you‘re answering my next question.  All right...

(CROSSTALK)

ABRAMS:  But answer my—hold up the prop.  Go ahead.  You can hold up your prop.  OK...

SMALL:  Here is the prop. 

ABRAMS:  Now answer my—the question I‘m asking you.  Do you know whether Martha Stewart herself, has she contacted you and said anything...

SMALL:  No.

ABRAMS:  ... about whether she is going to ask for a pardon herself? 

SMALL:  No.  She hasn‘t contacted me herself.  And this is really a grassroots effort at savemartha.com.  It‘s her fans reaching out...

ABRAMS:  Yes.

SMALL:  ... and we‘re anticipating you know a very tough road ahead.  We don‘t care, but we‘re starting the process now.  It could take us years to get to this point.  But if George Steinbrenner...

ABRAMS:  All right.

SMALL:  ... and Richard Nixon were pardoned...

ABRAMS:  Look...

SMALL:  ... certainly Martha Stewart can be. 

ABRAMS:  Look, you‘re not going to get it, but I admire your going forward and believing—moving forward what you believe in.

SMALL:  Thanks Dan.

ABRAMS:  I think that‘s—all right, Margaret Love, thank you very much for...

LOVE:  Thank you.

ABRAMS:  ... coming on the program. 

LOVE:  Nice to be here. 

ABRAMS:  Coming up—attorneys for former NBA star Jayson Williams accuse the prosecution of serious misconduct over a falsified report.  They want all the charges thrown out, but Williams admits he shot his limo driver.  Might he now get a free pass? 

And a wedding picture this bride wouldn‘t have even wanted in her photo album gets put on a greeting card without her permission and sold in stores across the country.  Now she‘s suing.  We‘ll talk to the bride and her attorney. 

Don‘t forget, your take on the show. 

(COMMERCIAL BREAK)

ABRAMS:  A big hearing today in the Jayson Williams case.  The former NBA star standing trial for manslaughter and other charges stemming from the shooting of his limousine driver Costas Gus Christofi.  Christofi was killed on February 14, 2002 at Williams‘ home and Williams admits he was holding the gun.  The defense now asking the judge to throw out all of the charges, accusing the prosecutors of misconduct saying one of their witnesses altered a report on the gun or about the gun that killed Christofi.  Why? 

Well according to the defense, because the district attorney asked for the report to be changed.  Court TV‘s Jean Casarez has been following the trial from the beginning and joins us now from the Somerville, New Jersey courthouse. 

So Jean, you know it seemed like this was going to be a no-brainer and the judge was going to say come on defense attorneys, get out of here.  Let‘s get on with this.  We‘ll get a witness to come back in, you can cross-examine him again or whatever.  But now it seems that the judge may really be considering throwing out all the charges? 

JEAN CASAREZ, COURT TV:  Well we don‘t know.  He is not going to render his decision until tomorrow.  But Dan, this is a big mess.  This is such a big mess and I say that very objectively.  Today‘s hearing was just so many different issues the defense presented and the defense is saying that there were discovery violations by the prosecution, but not only were there discovery violations, they didn‘t get notes, they didn‘t get pictures, they didn‘t get a draft report.  But they are saying that it was all intentional on the part of the prosecutor. 

Now one of the core issues revolves around a preliminary report, a draft report from Larry Nelson.  He is from the Browning Company, the manufacturer of the gun.  He is to be the rebuttal witness of the prosecution.  And the defense just got this preliminary report in their hands and they compared the draft report with his final report and they are saying that at the direction of the prosecutor, there are intentional deletions from that draft report. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  You would agree with me now it‘s much more a substantial change than you told the court on April 1, when you relied on your memory as to what happened? 

LARRY NELSON, BROWNING ARMS‘ CHIEF ENGINEER:  Well, it is an addition, certainly...

(CROSSTALK)

NELSON:  ... needs to be called that.

UNIDENTIFIED MALE:  And a deletion. 

NELSON:  And a deletion, yes. 

UNIDENTIFIED MALE:  And a significant deletion. 

NELSON:  Well, I don‘t know that I agree with that.

(END VIDEO CLIP)

CASAREZ:  Now what the prosecution is saying that any change that was made, it was not substantive at all.  It was just maybe changing around the language a little bit.  And any discovery violation that we did do, it was totally inadvertent.  We didn‘t mean to do it.  The minute we found those pictures, we faxed them, sent the notes to the defense. 

ABRAMS:  Let‘s be clear about what we‘re talking about here, Jean.  We‘re—one of the key issues in this case is did the gun go off accidentally?  Meaning, you know the prosecutors are saying, look, Jayson Williams is being reckless.  He‘s basically pointing the gun at Gus Christofi.  He was drunk.  He was making all sorts of threatening comments, et cetera.  We‘re not saying he did it on purpose, but he was so reckless.  The defense is saying it happened by accident and this is an issue that relates to specifically to how that gun works, right? 

CASAREZ:  Exactly.  How the gun works.  That goes to two core issues the defense is now saying.  First of all, in that draft report from Larry Nelson from Browning, he had an opinion that was counter to the ballistics expert for the state, Detective Sergeant Ryan.  And if they‘d been allowed to cross-examine that prosecution witness on that point that would give them more ammunition that it was an accident.  Go ahead, you have a question? 

ABRAMS:  I was just going to say, why not just bring witness back in and let them cross-examine him again.  I mean why are they talking about throwing out the charges? 

CASAREZ:  Well that may be exactly what the judge does.  The judge may allow the defense to re-open their case, put their witnesses back on the stand, put Detective Sergeant Ryan, the ballistics expert of the state back on the stand, let them re-cross examine him.  But they‘re saying you know it‘s too late for that because there‘s been so much here.  We can‘t get the same magic, the same momentum, they‘re going to know what we‘re going to cross-examine them on and it‘s just not fair.  It doesn‘t afford this defendant a fair trial.

ABRAMS:  Very quickly, Jean, does anyone that you know of think the judge is actually going to throw out the charges? 

CASAREZ:  The only concerning thing is that the jury was supposed to come back tomorrow.  They were supposed to come back at 9:00.  Now the judge says let‘s not have a jury...

ABRAMS:  Wow.

CASAREZ:  ... at all tomorrow.  I‘ll render my decision at 1:30.

ABRAMS:  Wow.  Oh, my.  If—I‘ll tell you something ladies and gentlemen.  If this judge throws out the case in the Jayson Williams case, we‘re going to have a lot of discussions about this.  Because that will, to me, be shocking and a complete travesty of justice.  But we shall see.  Jean Casarez, thanks very much for coming on. 

CASAREZ:  (UNINTELLIGIBLE)

ABRAMS:  Coming up, a picture taken at her wedding almost a quarter century ago and plastered on thousands of greeting cards apparently without her permission has got the bride going to court to sue for thousands of dollars.  We‘ll talk to her and her attorney coming up. 

Plus, wait a minute.  That‘s not Condoleezza Rice.  It‘s Janet Jackson on “Saturday Night Live.”  We‘ll show you her latest live flash.

(COMMERCIAL BREAK)

ABRAMS:  Weddings can be a stressful time.  Maybe a drink, maybe a cigarette or both to calm your nerves before heading down to the altar.  But you often don‘t include that part of the album—that part of the day in the album with the rest of the photos.  Well, that‘s what happened to Michele Hemphill.  However, it didn‘t end up in her wedding album.  It ended up on greeting cards across the country.  Twenty-two years ago on her wedding day, Michele had this picture taken of her by a “Newsweek” magazine photographer while doing a story on small town America. 

It shows the then bride-to-be taking a little shot of whisky right out

of the bottle with one hand, the other holding a cigarette.  The photo ran

in 1982 and Hemphill wasn‘t happy about it then, but she took no legal

action, put it behind her.  Fast-forward 22 years.  She gets a call from a

friend telling her the photo is now immortalized on wedding cards across

the country, as well as circulating around the Internet with a caption

reading “Isn‘t love intoxicating.”  She is now suing the photographer and

the greeting card company for at least $25,000 and her attorney argues they

·         quote—“acted outrageously and went beyond the bounds of common decency by publishing the picture without plaintiff Hemphill‘s knowledge or consent on the Internet, on greeting cards and possibly elsewhere thereby exposing intimate 20-year-old private details of her life to her community.”

Michele Hemphill and her attorney Richard Schulte join me now.  Thank you both very much for coming on the program.  All right, Ms. Hemphill, let me...

UNIDENTIFIED MALE:  Thank you. 

ABRAMS:  ... let me start with you.  Tell me how you first found out about this.  A friend called you and says you‘re not going to believe this?

MICHELE HEMPHILL, SUING GREETING CARD COMPANY:  Right.  She calls and said she received a greeting card in the mail from her sister, who purchased it in Chicago and on the front of it, she wrote isn‘t this Michele?  And when she called me, I didn‘t believe her at first and then she convinced me and I had her give me the information from the back of the card and I immediately e-mailed Portal Publications and asked how my photograph came to be on one of their greeting cards and they asked me which card I modeled for. 

(LAUGHTER)

ABRAMS:  Do you remember—let me just ask you before we get into some of the legalities.  Do you remember taking that shot? 

HEMPHILL:  (UNINTELLIGIBLE)

ABRAMS:  Do you remember that moment in time?

HEMPHILL:  No, I really don‘t. 

(LAUGHTER)

HEMPHILL:  I mean you know, not clearly I don‘t remember, obviously I did it. 

ABRAMS:  Right.  Right. 

HEMPHILL:  You know I think it was pretty quick and there you go. 

ABRAMS:  And I assume your initial reaction was, wait a second, how can they do this?  How can they be selling greeting cards of me out there and I didn‘t even know about it.

HEMPHILL:  Right.  I thought it‘s pretty arrogant to do it without my permission like I‘m you know just some person in a little town who has no recourse. 

ABRAMS:  All right.  Mr.  Schulte, let‘s talk law for a minute.  I mean you know there are a lot of these cases out there...

UNIDENTIFIED MALE:  Sure.

ABRAMS:  ... that involve organizations that claim well, you know this is newsworthy.  They were doing a story about small town America.  But, how do they justify the issue of then selling it for commercial gain? 

RICHARD SCHULTE, ATTORNEY FOR MICHELE HEMPHILL:  Well, you have to back up a second.  First of all, this is not a newsworthy situation.  They‘ve produced a greeting card and distributed it to over 10,000 stores across this country.  Every American owns their right to publicity.  That‘s their likeness, their signature, their image, their picture, their voice.  They own the right to sell that.  And if someone doesn‘t give permission, they can‘t sell it for profit.

ABRAMS:  Well you know we‘ve been doing a lot of these stories.  I‘m not comparing this because I think they‘re comparable as a legal matter.  I think it is relevant.  You know these “Girls Gone Wild” videos that come out, these women claim they never gave consent, for example, to be on these videos.  They are advertised on the cover of the videos with their pictures and they‘re furious.  They‘re saying wait a second, you know I didn‘t even know that I was being videotaped and yet the “Girls Gone Wild” producers are winning each and every one of these cases. 

SCHULTE:  (UNINTELLIGIBLE) I would assume in those cases they‘re doing what Portal Publications should have done in this case and that‘s getting a signed model release.  And what that does, it covers disseminations of her photograph over time.  Now the “Newsweek” photograph that was taken, it is my understanding that that—if there was a release, my client didn‘t sign it.  It didn‘t cover this particular picture.  Secondly, it didn‘t cover any future dissemination of that photograph. 

ABRAMS:  Yes.

SCHULTE:  And it certainly didn‘t cover the photograph with the language “Isn‘t love intoxicating” on it. 

ABRAMS:  Right.

SCHULTE:  It depicts my client in a very bad fashion...

ABRAMS:  Right and I think that‘s a different issue because I‘ve got to tell you, these cases amaze me.  I‘m saying this only because I‘ve been amazed at how many of these cases these producers are winning even though there very often isn‘t a signed release. 

But let me read you what Portal Publications says about this and I want you to respond.  “In her lawsuit against Portal Publications, Mrs.  Hemphill assets that one of our greeting cards violated her rights of privacy and publicity.  While we disagree that we have done anything improper, we respect her concerns.  Portal has stopped using her photograph on our Web site and we are in the process of removing the card from circulation.”  Enough? 

SCHULTE:  Well, first of all, that position is indefensible.  They did not get a model release.  They didn‘t get permission. 

ABRAMS:  Yes.

SCHULTE:  In this case, Corbis, who was the image wholesaler, put Portal on notice that they needed to get a model release...

ABRAMS:  Yes.

SCHULTE:  ... even went so far in their documents to inform them that this is potentially the sort of claim that could be brought against them and they didn‘t do it.  And I don‘t know what the reason is.  Maybe they thought my client would be dead now. 

ABRAMS:  All right.

SCHULTE:  Maybe they though they could just get away with it and she wouldn‘t fight, I don‘t know.

ABRAMS:  Yes, look, you know it does seem unfair, I have to tell you, that they get to use this wedding photo and Ms. Hemphill doesn‘t get to make a penny out of it.  But anyway thanks very much for coming on the program.  We‘ll continue to follow the story. 

SCHULTE:  Thank you. 

HEMPHILL:  Thank you.

ABRAMS:  Coming up, Janet Jackson‘s revealing performance on “Saturday Night Live”, Condoleezza Rice‘s 9/11 testimony in a way you never would have pictured. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, my “Closing Argument”, “Your Rebuttal” and Janet Jackson‘s new fallout on “Saturday Night Live”.  It‘s coming up. 

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—my continuing effort to try to take the politics out of 9/11, I‘ve already said that those who blame Presidents Bush or Clinton for 9/11 are just taking partisan cheap shots and that I look forward to some answers from a unanimous, bipartisan report from the 9/11 commission.  I‘ve said I will support its findings no matter what they decide and no matter who is to—quote - “blame”. 

And this weekend‘s release of the August 6, 2001 presidential daily briefing memo, entitled “bin Laden determined to strike in U.S “ doesn‘t really change anything.  It does not and should not mean it‘s time to blame President Bush.  Almost everything in the memo is information that President Clinton should have had as well.  Threats from bin Laden in the late 1990‘s, sources from the late ‘90‘s warning of al Qaeda efforts to attack the U.S at home.  A summary of the dangers bin Laden and his followers pose to the U.S.

Yes, it‘s true the memo specifically refers to more recent—quote—

“patterns of suspicious activity in this country, consistent with preparations for hijackings or other attacks” and that is disturbing.  But again, the Clinton administration should have been concerned as well.  In fact, 9/11 commissioner Tom Kean is pushing to declassify another presidential daily briefing related to al Qaeda that was delivered to President Clinton.  Both presidents thinking in a pre 9/11 mentality where the FBI handled these matters and where in the words of the August 6 memo, the more—quote—“sensational threat reporting could not be corroborated.”

The 9/11 report will serve up plenty of blame in addition to suggestions for the future.  But until then, hold your political fire.  The answers may not be as neat as some of the partisans would like. 

I‘ve had any say.  Now it is time for “Your Rebuttal”.  In a “Closing Argument” last week, I warned that, again, that once the bipartisan 9/11 commission issues its report, I will accept it and take to task the partisans who seek to attack it.  Seems the partisans are already revving up their political engines. 

Leo Thomas is blaming Bush—excuse me.  “I‘m surprised and saddened that you, a lawyer, would accept the 9/11 commission report sight unseen.  The failure of the president and national security adviser to further investigate the possibility of a terrorist attack after the PDB of 8/6/01 is inexcusable.” 

And from Houston, Texas Carl Cole is blaming Clinton.  “I‘m beginning to believe that the panel has de-escalated into a bipartisan political circus.  If they really wanted to know why, then it‘s obvious to the casual observer that they‘re going to have to delve back into the Clinton administration.”

All right.  Carl and Leo, you guys are the problem.  You just can‘t look at this objectively and say let‘s see what the five Democrats and five Republicans who will have interviewed all of the relevant players say, who have access to classified material.  Now you guys just want to make 9/11 political.  Well as I said, I will defend this commission no matter what it finds. 

And there was my “Closing Argument” about a Houston judge‘s decision not to accept a plea deal between federal prosecutors and Lea Fastow, the wife of a top Enron executive.  She was ready to plead guilty to filing false tax returns, having nothing to do with the fall of Enron.  She would have served 10 months, half in prison and half in home detention.  A tough but fair sentence for the crime she committed.  But instead of recognizing how helpless she has been in securing pleas or indictments of the real bad guys including her husband, the judge decided to try to look like a tough guy and reject the deal. 

Carrie K. from Houston, Texas writes, “In addition to being Andrew Fastow‘s wife, Lea Fastow was also the assistant treasurer of Enron, which potentially implicates her in much more than filing false income taxes, so don‘t cry for her just yet.”

Carrie, potentially except no one has alleged that she did anything wrong in her role as assistant treasurer of Enron. 

And many of you wrote in about our special guest on Friday.  One of my biggest fans who‘s been watching my career for some years.  Little Matthew, from Warrington, Pennsylvania has watched the program religiously.  He‘s only four years old.  He‘s got a Web site that he and his mother put together about the show.  Sometimes he even goes as far as kissing the screen during my reports.  He even named some of his toys Dan.

Jay Woodward (ph) from Winston-Salem, North Carolina writes, “Matthew is certainly a cute child.  I looked up his Web site, which is also very cute.  But he‘s not your number one fan.  I am.”  Thank you.

And Jenifer Darland from Tucson, Arizona writes, “My three and a half month old son does his best to make it all the way through your comprehensive reporting, as he is a big, little fan.  However, naptime wins out.”

And finally a child that seems to dislike me.  Tina Reynolds from St.  Louis, Missouri writes, “I just had to write you to tell you about your youngest enemy.  I have a 6-year-old son who cries when I watch you.  He says I‘m not allowed to love you because you‘re not a neighbor.  But I do watch you every day.”  Thanks Tina.

You can see more of what little Matthew had on his Web site on the screen, if we can put that up very quickly, that would be great.  All right. 

Before we go, we thought - who would have thought that Condi Rice could somehow be linked to Janet Jackson‘s breast baring episode.  Here‘s “Saturday Night Live” from this weekend.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  If all else fails, I did have one other idea that I think would work. 

UNIDENTIFIED FEMALE:  Yes, please.  What is that?

UNIDENTIFIED MALE:  Well, I think you should flash a boob.

(LAUGHTER)

UNIDENTIFIED MALE:  (UNINTELLIGIBLE) it does two things.  You went over to the liberals, plus it‘s a distraction for the press.  You flash a bazoom (ph) and I guarantee you that‘s going to be the headline, not the bin Laden thing.  I guarantee it.

UNIDENTIFIED FEMALE:  Sir, I was a provost at Stanford.  I am a concert level pianist.  I‘ve read “War and Peace” in original Russian.

UNIDENTIFIED MALE:  Oh, loosen up Condi.  We‘re talking about one fun bag.

UNIDENTIFIED MALE:  What did you think and what did you tell the president as you hit that kind of, I suppose new information for you.

UNIDENTIFIED FEMALE:  (UNINTELLIGIBLE)

(LAUGHTER)

(APPLAUSE)

(END VIDEO CLIP)

ABRAMS:  Your e-mails abramsreport—one word -- @msnbc.com.  I‘m going to try and take some cough medicine.  I‘ll see you later. 

Coming up, Chris Matthews and “HARDBALL”.

END   

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