updated 4/30/2004 10:39:21 AM ET 2004-04-30T14:39:21

Guests: Gloria Allred, Mercedes Colwin, Christopher Whitcomb, Jean Casarez, Rob Becker, Karen Russell, Marc Firebaugh

DAN ABRAMS, HOST:  From Los Angeles, Michael Jackson prepares for a big day in court tomorrow. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  On the eve of his arraignment, Michael Jackson tries to mend fences with his family.  This as new questions arise about how the prosecutor is handling the case. 

A terror watch at Los Angeles malls.  Police and security companies beef up patrols in one Los Angeles area, but it seems to have been based on a single anonymous call.  Is this good police work or overkill? 

And jurors in the Jayson Williams manslaughter trial say they‘ve reached a verdict on six of the eight charges against the former NBA star.  They appear split on two others.  What does that mean for Williams? 

The program about justice starts now. 

(END VIDEOTAPE)

ANNOUNCER:  From Burbank, California this is THE ABRAMS REPORT.  Here now is Dan Abrams.

ABRAMS:  Hi, everyone.  First up tonight, Michael Jackson to be formally arraigned tomorrow and for the first time, the exact charges against him to be made public.  A grand jury indicted him last week but the specific charges remain sealed until tomorrow‘s court date.  And tonight, preparations being made to prevent that circus-like atmosphere that surrounded Jackson‘s last court appearance. 

Also, NBC News has learned Jackson has been trying to restore relationships with his family.  On Tuesday, he set up a conference call with his brothers Jackie, Randy, Tito and Marlon and parents Joseph and Catherine.  He‘s been at odds with his family since the Nation of Islam has been involved in many of his personal affairs.  And on that conference call, Jackson promising his family he would not repeat the antics that followed his last court appearance when, of course, he danced on the car after the proceeding. 

I want to bring you two people who know Jackson and this case very well.  NBC analyst James Thomas is the former Santa Barbara County sheriff who led the ‘93 investigation into Jackson and Jackson family friend Stacy Brown, who is also an NBC News analyst.

All right, Jim, first let me start with you.  What are the Santa Barbara authorities doing to make sure there‘s not a repeat of the court appearance where Jackson danced on the car and walked around and had the cameras and everyone coming up to him? 

JIM THOMAS, FMR. SANTA BARBARA COUNTY SHERIFF:  Dan, I think there are two major things.  Number one is I believe he‘s going to be led out actually on court property instead of on the public street.  It makes a difference as far as the court (UNINTELLIGIBLE) goes.  He would be under that order so that would probably prevent him from doing anything anyway.  Beside that, there‘ll probably be 40 Santa Maria police officers as well as about 50 Santa Barbara sheriff deputies who will be there to ensure that the crowd does not get as close as it did last time.  And I was over there a while ago and looking at the fencing that they have set up, the fans will be able to see, but they will be—not be close enough for autographs and those things that slowed him up getting into court and then probably what caused him to jump on that SUV last time. 

ABRAMS:  So bottom line is even though Michael Jackson is promising his family members it‘s not going to happen again, you‘re saying that even if he wanted it to happen again it couldn‘t? 

THOMAS:  Well I‘m not saying he couldn‘t hop on top of the car, but I‘m thinking his defense team wouldn‘t want him to do that either, so I don‘t think that‘s going to happen anyway.  But from the security standpoint the thing that was probably the worst last time was that the fans were allowed to get closer to the vehicle.  That will not happen this time. 

ABRAMS:  Stacy Brown, how big a change is this for Michael Jackson and him reaching out to his family members?

STACY BROWN, JACKSON FAMILY FRIEND:  Well it has been—it is a big change.  It has been a change lately where a lot of family felt kind of left out.  Now they‘re in, they‘re welcomed by him, they‘re being embraced by him, they‘re embracing him and they are all now behind the same, I guess the same wall, if you will, and they‘re fighting the same battle.  They recognize that look we have to band together.  This is very serious.  Michael is in trouble.  Let‘s help out all—in the best way we can. 

ABRAMS:  So, why has this been a problem up to now?  I mean has really the single problem been the involvement of the Nation of Islam? 

BROWN:  Well, according to some of the family members yes, that‘s been the single biggest problem.  They felt like they had such a strangle hold around Michael that they could not even get in to see him.  They couldn‘t talk to him.  They didn‘t know what was going on.  They were very concerned.  They felt all along that there was misinformation being given to them about him and how he may or may not be doing.  They would listen to media reports.  They got a lot of things actually from you, Dan, and your reports on how Michael was doing and what was going on with Michael. 

ABRAMS:  Do we know who‘s coming to court, Stacy, in terms of family members? 

BROWN:  My understanding is that Michael has asked everyone to come to court.  We know that logistically it might not be possible.  Jermaine, of course, is still in the Middle East, but we do know that his parents will be there.  Randy will be there.  It is believed that Jackie will also be there and perhaps even Tito. 

ABRAMS:  And expected any press conference, are they going to have any statement to make, are the family members going to start going out there and speaking more on behalf of Michael Jackson, Stacy? 

BROWN:  We will—I‘m sorry Dan.  We will hear from Jermaine tomorrow.  That is a given.  We are definitely going to hear from him.  He‘s made it clear that he will have something to say, especially since he cannot be there.  So we will hear from him.  As far as the family making a statement, one of the things that Michael has continually asked is that everyone kind of stay silent for now.  He doesn‘t want everyone speaking out and saying different things, so they‘re going to have very careful, if there is a statement, I—right now I don‘t think that the family will be making a statement tomorrow—only that we will hear from Jermaine Jackson, though. 

ABRAMS:  All right.  Stacy Brown thanks a lot.  Jim Thomas is going to stay with us. 

Coming up, Jackson‘s camp has always accused Santa Barbara D.A. Tom Sneddon of having a personal vendetta against Jackson.  Question—is he doing too much of the investigation on his own? 

A telephone threat against L.A. malls sent extra police today and security reporters scurrying.  But now senior officials doubt the credibility of the caller.  So, what happened? 

In the Jayson Williams manslaughter trial, the jurors say they have reached a verdict on six of the eight charges against the former NBA star, but say they‘re deadlocked on two.  What does this tell us about the verdicts?  We‘ll go to the scene. 

Your e-mails abramsreport@msnbc.com.  Please include your name and where you‘re writing from.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, new details about the top prosecutor in the Michael Jackson case and the depth of his personal commitment to the case. 

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  We‘re talking about the big day for Michael Jackson tomorrow where he‘s expected to be formally arraigned on some pretty serious charges.  Meanwhile, new questions about whether Santa Barbara District Attorney Tom Sneddon is taking the case too personally.  Now we‘ve known that Sneddon has personally investigated many parts of the case.  We‘ve known he‘s even conducted surveillance of defense investigator‘s office.  He‘s met with witnesses on his own.  ABC News reporting today that according to a memo they say was written by Sneddon, he met with the mother of the alleged victim in a parking lot behind a Los Angeles federal building. 

Well NBC News has learned from sources familiar with the defense strategy that D.A. Sneddon collected evidence from the accuser‘s mother at that meeting, including an article of clothing and letters and notes from Jackson.  But the question that everyone is asking is, is the D.A.  overstepping his bounds to the point where is it possible that the defense might even want to call him as a witness? 

Back with us, former Santa Barbara County sheriff and MSNBC News analyst Jim Thomas, and victims‘ rights attorney Gloria Allred, who‘s been an outspoken critic of Michael Jackson and criminal defense attorney Mercedes Colwin.

All right, Gloria, what do you make of Tom Sneddon‘s handling of this case, and the fact that he‘s dealing with a lot of these issues on his own personally? 

GLORIA ALLRED, VICTIMS‘ RIGHTS ATTORNEY:  It is unusual, Dan, for a district attorney of a large county, and certainly Santa Barbara is a large county, to personally get involved and perhaps drive out there and interview a witness in a car, conduct surveillance, if in fact he did do that, of a—of an investigator‘s office for the defense.  However, he is the lead lawyer for the county for a criminal case.  So while most district attorneys wouldn‘t do it, I don‘t see any reason why he can‘t do it.  Of course, it does leave him open to attacks by the defense, which I‘m sure they‘re launching already...

ABRAMS:  And Gloria...

ALLRED:  ... that he‘s too personally involved, so maybe it is not wise...

ABRAMS:  What about...

ALLRED:  ... for him to do it...

ABRAMS:  But what about...

ALLRED:  ... but on the other hand, he feels very responsible...

ABRAMS:  OK.

ALLRED:  ... to this case. 

ABRAMS:  What about the possibly that he would be called as a witness, though? 

ALLRED:  I think it‘s unlikely that he would be called as a witness.  The defense may try, however.  They‘re going to try anything and everything.  They may try.  They may not, however, be successful in calling him...

(CROSSTALK)

ALLRED:  ... to the witness stand.

UNIDENTIFIED FEMALE:  Dan...

ABRAMS:  Mercedes...

ALLRED:  By the way, if a lawyer is a witness, generally, they‘re no longer the lawyer on the case. 

(CROSSTALK)

ALLRED:  So, what would happen to the case?

ABRAMS:  You know Mercedes I just don‘t think this is that big a deal. 

I mean I understand what the defense is going to try and do here, but just in and of itself, the fact that Tom Sneddon is getting very personally involved in collecting evidence, even conducting surveillance, yes it‘s unusual, but is it really that big a deal? 

MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY:  You have to have (UNINTELLIGIBLE) reasoning as a—especially as a prosecutor.  As a lawyer overall certainly you‘d have to have that.  You can‘t be so personally involved that you‘re gathering evidence.  As a defense attorney, he would be the first witness I would call.  He‘s gathering evidence.  He‘s talking to witnesses.  He has no one present in the room.  This is a very sensitive case that involves a child and certainly...

(CROSSTALK)

COLWIN:  ... that child could be very impressionable.

ABRAMS:  But isn‘t that the job of the D.A.—I you‘re suggesting that the D.A.‘s job isn‘t to collect evidence...

COLWIN:  Not—I would never and I have worked at a prosecutor‘s office—have gone to and talked to a witness by myself.  Because what can happen at the time of the trial is suddenly this witness is testifying to something entirely different than what they told me. 

(CROSSTALK)

COLWIN:  Extraordinarily problematic and certainly, gathering evidence as you had stated earlier, he‘s collecting documentation.  Where is the chain of custody?

ABRAMS:  Let me...

COLWIN:  You have to show where that evidence was from beginning to end.  He‘s going—who else is going to be able to testify?

(CROSSTALK)

COLWIN:  Where did that evidence go when I took it from this witness...

ABRAMS:  I don‘t know.  It just—Jim Thomas, look, you were the sheriff with Tom Sneddon.  Was he very personally involved in your cases and what do you make of this controversy? 

THOMAS:  Sure he was.  And if we weren‘t concerned about chain of custody, then you probably wouldn‘t have even heard about this.  So I‘m pretty well sure that he followed that.  It doesn‘t surprise me at all that Tom Sneddon met with the mother back in November and maybe she brought him some material that he took back.  I‘d be a little surprised about the surveillance, but I‘m at a disadvantage here.  I haven‘t seen the memo.  But he‘s a very hands-on attorney.  In fact right now he‘s trying another child abuse case that‘s going to last for the next six weeks and he‘s doing that while this case is going on. 

ABRAMS:  So...

(CROSSTALK)

ABRAMS:  ... Mercedes just make us—make it clear for us, what‘s wrong with that?  What‘s wrong with what Jim Thomas is saying?

COLWIN:  My concern is this, that this person has been following Michael Jackson, certainly surveillance is extraordinarily problematic.  Since 1993 he‘s been trying to prosecute Michael Jackson...

ABRAMS:  But that‘s a separate issue...

THOMAS:  No, that‘s not true. 

COLWIN:  And if they—if he—as he continues and he‘s gathering this evidence and he‘s in—trying to collect this information, I think it‘s extraordinarily problematic.  First of all...

(CROSSTALK)

COLWIN:  ... I have represented—I represented prosecutors that have done less than what Sneddon done and suddenly you have the due process issue when individuals have been wrongfully convicted for evidence gathered by these prosecutors...

ALLRED:  Dan, it‘s not at all unusual...

UNIDENTIFIED MALE:  No, no, no, no...

ALLRED:  ... for a deputy district attorney to interview a witness by themselves and so, the deputy district attorney works for the district attorney.  If the district attorney wants to interview a witness, I don‘t see what‘s wrong with it.  I think this is just much ado about not too much.

ABRAMS:  Go ahead Jim.

THOMAS:  Tom Sneddon did not make the call to the mother.  She had to have called him for him to respond.  What he‘s doing is what the people of this county is paying him to do.  And in a case of this nature and because of 1993, I‘m certain he would at least go out initially and find out if this was something that had enough validity to follow through on it and I think that was a smart move on his part. 

ABRAMS:  But Jim, shouldn‘t he be bending over backwards to make sure that nothing even seems amiss?  I mean look, I sort of don‘t think that this is going to be a make or break issue.  I think the idea of Sneddon having a vendetta, if they‘re able to prove it, fine.  But I just don‘t see this as being that big a deal.  But why not bend over backwards—Tom Sneddon bend over backwards to make sure that no one can make these sort of allegations?

THOMAS:  Well I don‘t know.  I think he bent over backwards when he went and met with the mother in the first place to is see if there was a case, at least following through.  Now after that the case was handled by the Sheriff‘s Department and we know that it lasted several months before the, you know the initial charges were filed and the warrants were signed.  So I think he did follow the procedure once he believed that the case was valid. 

COLWIN:  What would have been the problem, though, if Sneddon had gone with someone else? 

(CROSSTALK)

COLWIN:  ... that‘s what I think...

(CROSSTALK)

ABRAMS:  Let Mercedes finish.  Hang on.  Go ahead Mercedes. 

COLWIN:  Because...

ABRAMS:  Finish up.

COLWIN:  But look at the situation.  Now he is and Dan, you‘re exactly right, he‘s placed himself in this vulnerable position.  He has been a district attorney for a very long time.  He‘s a seasoned lawyer.  Why would he place himself in this situation? 

(CROSSTALK)

COLWIN:  Why not bring someone else with him?  He‘s got a large office...

ALLRED:  There‘s an answer. 

COLWIN:  ... he‘s got many attorneys that work for him.  Bring them along.  Bring an investigator along.

(CROSSTALK)

COLWIN:  I find that problematic...

ALLRED:  Mercedes, there‘s an answer to that and the answer is that he feels a responsibility to the taxpayers of Santa Barbara to make sure that this case is done right in every way and that‘s what he‘s doing.  What I hope he doesn‘t do is decide to try the case himself or even with a deputy district attorney.  That I don‘t think he should do because then he will really open himself up to even more criticism than he‘s getting for this, but I don‘t know if that decision is made yet.

ABRAMS:  Sheriff Thomas, has that been made, that decision, do you know? 

THOMAS:  Well I believe he‘s going to be in the courtroom although I think Ron Sonar (ph) will be the one that will actually try the case.  And look, the people pay him to be there.  There‘s no problem with him being there especially in this case.  That‘s his job. 

ABRAMS:  All right.  We shall see.  Sheriff Thomas, Gloria Allred, and Mercedes Colwin, thanks a lot.

COLWIN:  Thank you.

ALLRED:  Thanks Dan.

ABRAMS:  Federal officials now doubt the credibility of a caller who threatened to blow up a mall in Los Angeles.  But L.A. authorities publicized the threat.  They sent extra security to shopping centers.  It was mayhem this morning.  What happened? 

Plus, California (UNINTELLIGIBLE) California smokers beware—if you‘re driving with a child that may soon be a crime to light up cigarette.  Come on.

(COMMERCIAL BREAK)

(NEWS BREAK)

ANNOUNCER:  From Burbank, California this is THE ABRAMS REPORT.  Here again is Dan Abrams.

ABRAMS:  Security officials on high alert out here in L.A. after police say they were told a mall in west Los Angeles could be the target of a terror attack, but now senior officials in Washington discounting the credibility of that threat.  They say the information came from an anonymous phone caller a few days ago to the Homeland Security Operation Center in Washington.  But after the FBI and the Terrorist Threat Integration Center found no information to corroborate the threat, officials now casting doubt on the caller‘s credibility.  So what happened?

NBC‘s Joe Ricco (ph) for more on how the city responded.

(BEGIN VIDEOTAPE)

UNIDENTIFIED REPORTER (voice-over):  The memo warned of a possible terrorist attack on an unspecified shopping mall near the federal building in west Los Angeles.

JAMES HAHN, LOS ANGELES MAYOR:  You‘re going to see increased police presence at certain venues and you should know that additional security precautions have been taken at a lot of different venues.

UNIDENTIFIED REPORTER:  The warning issued by federal authorities to LAPD is characterized as unsubstantiated.  Still, they say what makes this threat different from all of those in the recent past is that a specific target and specific date have been mentioned. 

WILLIAM BRATTON, LOS ANGELES POLICE CHIEF:  We have not been able to corroborate the information as of this time and are certainly attempting to identify the source and that‘s part of the behind the scenes investigation.

UNIDENTIFIED REPORTER:  There are about a half dozen major shopping malls within a 10-mile radius of the federal building.  As a result of the threat, police have now stepped up operations along the city‘s west side and they‘ve issued a shopping list of caution for the general public.

LUCIAN HOOD, RESIDENT:  It makes you a little on edge and you don‘t want to go out you know whenever a threat like that. 

HALEH AMID, RESIDENT:  It doesn‘t really scare me.  I don‘t know.  I‘m not going to change anything. 

UNIDENTIFIED REPORTER:  Mayor James Hahn also urges the public to go about their daily routine, but to be aware of suspicious activity. 

Joe Ricco (ph) in west Los Angeles for NBC News.

(END VIDEOTAPE)

ABRAMS:  And casting even more doubt on the credibility of that threat, NBC News has learned another senior U.S. intelligence official says he didn‘t even know about the threat until he saw it reported on television today. 

Joining me now is former FBI special agent and MSNBC analyst Christopher Whitcomb.  All right, Chris, good to see you again.  Like you have been critical of these—of warnings in the past.  I‘ve got to believe that this sort of is the epitome of everything you‘ve been talking about. 

CHRISTOPHER WHITCOMB, FMR. FBI SPECIAL AGENT:  No, Dan—it‘s good to see you first of all.  It certainly is that.  Look, the United States can‘t respond to every one of these crank calls that comes in and they don‘t.  In fairness to law enforcement, they get many, many of these on any given day.  Some of them they consider credible.  I think it‘s a standard that they have to try and work out how they‘re going to respond.  They‘ve got to find some other corroborating information.  Simply saying that we have a specific date and a specific time is not all the information that goes into it.  You can be sure there‘s a lot of other information we don‘t know about.  But when it comes right down to it, we can‘t get in a situation where we‘re going to respond to every one of these calls.  It used to be bomb squares.  It used to be people pulling fire alarms.  Now it‘s much more serious than that.

ABRAMS:  But, I‘ve got to believe that it‘s just downright dangerous.  Because what I‘m fearing is that there is going to be a threat at some time that officials believe really is credible, that is corroborated and people aren‘t going to be able to distinguish between the police chief saying well this one is uncorroborated and this one is corroborated.

WHITCOMB:  No doubt about it.  Look, people watch television.  They listen to the news.  We‘re an information society, and they have a great deal more information about terrorism and terrorist threats than they ever used to and I think people make up our own minds.  As we heard from the person talking in the previous report, they didn‘t pay it much attention.  I think we realize now more than two and a half years after 9/11 that the threats are dealt with behind the scenes and when we see these responses that they‘re not something that most people are going to take seriously.  And I think that‘s a danger we fall into in this kind of a response. 

ABRAMS:  Are the L.A. officials to be criticized for the way they handled this?  Chris?  All right.  I don‘t think Chris can hear me there.  Anyway, Chris?  All right Chris Whitcomb, thank you for coming on the program and you know, I think you can sort of guess what his answer is because Chris Whitcomb has long been critical of these types of warnings that go public.  He thinks that basically the FBI should issue warnings to the local law enforcement, but he‘s been very critical of the ones where they basically say to the public hey, this is what‘s going on because he doesn‘t know what the public can actually do to change their behavior.

Coming up, the Jayson Williams manslaughter jurors say they‘ve reached a verdict on all but two of the counts facing the former NBA star.  Does this mean it‘s more likely guilty or not guilty?  We‘ll try and figure it out. 

And later “Your Rebuttal” on the argument over prosecutors using the word victim in the Kobe Bryant case.  Read your e-mails—keep sending them, abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  We read them at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Jurors in the Jayson Williams manslaughter trial say they‘ve reached a verdict on six of the eight counts against the former NBA star.  Williams is accused of shooting his limousine driver Gus Christofi and then trying to cover up the crime.  The jurors sent a note to the judge this afternoon indicating they are deadlocks on two other counts.  The judge has given what is called an Allen charge meaning he sent them back and said keep going, keep trying to reach a verdict on those remaining counts. 

Court TV reporter and attorney Jean Casarez has been covering this trial from the beginning.  She joins us now from the scene of the case.  So, Jean, are they done for the day deliberating? 

JEAN CASAREZ, COURT TV:  They are.  They‘ve gone home for today but the very last thing we heard about is they want some read-back testimony from three of the four eyewitnesses that were in the bedroom that saw and were there when the shooting happened.  So what that means is I think the two counts they have not found an answer to are either the shooting counts, which are the manslaughter counts, or the preshooting counts, which are possession of a weapon for an unlawful purpose or aggravated assault.

ABRAMS:  And is there any way to get a sense of you know which way they‘ve gone based on the fact that they‘ve come back with six of eight? 

CASAREZ:  Boy that‘s tough.  That‘s very tough.  We‘ve seen them in the courtroom when they‘ve come back and there are some distraught faces on at least two of the jurors, just shaking head, a little frustrated, upset, and obviously there‘s upset that they can‘t find a resolution to two of the charges.  But, we don‘t know, but we just know two could end up in a mistrial. 

ABRAMS:  You know the question everyone always asks, Jean, is people always asks when the jurors walk in and they‘ve reached a verdict that is not favorable to the defendant they don‘t look at the defendant in the eye, any sense of what was going on with regard to whether the jurors were looking at Jayson Williams or not when they walked in?

CASAREZ:  The majority were not looking at Jayson Williams.  The two in particular that seemed to have facial expressions was one juror in the front row that was looking down and just shaking her head like this, and this is while the read-back is happening and then a juror in the back row that was looking down, but suddenly looked up at the defendant for a split second. 

ABRAMS:  All right, let me lay out what the charges are here so we can really go through this and get a sense.  Then I‘m going to bring in the legal panel and I‘m going to ask you to stay with us. 

Charge number one—he‘s facing a charge of aggravated manslaughter in the first degree, could be a 10-30 year sentence.  Reckless manslaughter, which is five to 10 years. 

Let me ask you—before I go on, Jean, could he be convicted of both aggravated manslaughter and reckless manslaughter? 

CASAREZ:  Hypothetically he could, but realistically he probably won‘t be, because as you know the reckless manslaughter is basically a lesser included of the more serious, the aggravated. 

ABRAMS:  All right.  So he also faces a gun possession charge, second degree, five to 10 years, a charge of assault in the fourth degree, probation to 18 months is the sentence there.  Hindering apprehension, third degree, probation to five years, and tampering with a witness, tampering with evidence, fabricating evidence in this case.

Let me bring in criminal defense attorney Karen Russell and sports attorney Rob Becker.  Rob, what do you make of this?  Six counts they‘re saying they‘ve reached a verdict.  Two left.  Can you read the tealeaves?

ROB BECKER, SPORTS ATTORNEY:  Yes (UNINTELLIGIBLE) Look, everyone knows the evidence is much stronger on the cover up than the manslaughter so if—what they‘re wondering about is the manslaughter charges, which Jean indicated, that (UNINTELLIGIBLE) indicates to me that they are in favor of a conviction on the cover up.  It couldn‘t be the opposite.  So the two they‘re up in the air must be from the preshooting and you can‘t say that it‘s reckless—I‘m sorry, you can‘t say it‘s aggravated manslaughter because that crime alone with possession of a gun and aggravated assault, all three of those involve extreme indifference to human life. 

Since there‘s three of them that can‘t be what they‘re disagreeing on.  It has to be something that involves two of them, and I think it‘s aggravated assault and possession of a gun, which are the two charges that involve intentionally pointing a gun at the victim.  Remember, this guy took the gun, broke it open sort of like this and flicked it up and that‘s where it went off.  And maybe the jurors can‘t really agree that that involves pointing, but at the same time they agree that the man died as a result of extreme indifference.  So, if all of that‘s correct...

(CROSSTALK)

ABRAMS:  Hang on.  Rob, why are you so convinced, though, based on your reasoning that he‘s been found guilty of the whatever six counts that they are? 

BECKER:  Well, first, on the cover up, the evidence is just overwhelming, so if you split the remaining four, I mean if they found that he was acquitted on manslaughter, they wouldn‘t even think about the other three because that involves a higher mental state of extreme indifference to human life, whereas manslaughter just involves recklessness.  So, if they‘re even looking at the crimes that involve extreme indifference to human life, then they probably have already gotten past manslaughter, decided he was reckless, and now they may have even gotten past extreme indifference and decided OK...

UNIDENTIFIED FEMALE:  Hey, Dan? 

BECKER:  ... let‘s look at the last two.

ABRAMS:  Yes, I think I understand the reasoning.  But, go ahead Jean...

CASAREZ:  Dan...

ABRAMS:  ... you wanted to get in.  Yes.

CASAREZ:  I disagree with that. 

BECKER:  OK.

CASAREZ:  I think that if they are struggling on count three or count four, which are the preshooting counts, then I think they found him not guilty of the manslaughter counts because if you‘re having a problem finding if he pointed the gun at or near the victim, then how could you have found recklessness...

BECKER:  Well, there‘s an answer...

CASAREZ:  ... you couldn‘t have.

BECKER:  No, there‘s an answer to that Jean.  First of all, the two manslaughter cases have nothing to do with pointing.  And look, if they‘ve already acquitted him on manslaughter—aggravated manslaughter that means there‘s no extreme indifference, which automatically means he‘s acquitted on possession...

ABRAMS:  All right...

BECKER:  ... of a gun and aggravated assault because you have to find extreme indifference...

ABRAMS:  All right, all right, whoa, whoa, whoa—all right, we‘ve got to try not to use like the jargon about extreme indifference...

BECKER:  OK.

ABRAMS:  ... because you know I‘m losing you and if I‘m losing you as a attorney, I‘ll bet some of the non-attorneys out there are losing...

(CROSSTALK)

ABRAMS:  Karen Russell...

(CROSSTALK)

ABRAMS:  All right.  Karen Russell, what do you make of it?

KAREN RUSSELL, CRIMINAL DEFENSE ATTORNEY:  Well I was watching Jean all morning, not working today, and one thing that Jean said this morning was that one of the notes that the jurors sent early on said you know did Jayson do thus and so, not did the defendant do thus and so, but did Jayson and that seems very personal to me.  And I was struck by that that they sort of embraced him as a person as opposed to a defendant.  And that made me think well maybe, I mean I‘ve always thought that it was a struggle to get the aggravated and that they had more—would have had more success with the reckless count.  I think the other thing is, I think as much as Jayson Williams is suffering right now, I have to think the prosecutors must be just—have their stomachs tied in knots given the accusations of misconduct.  I think they had a really solid case, even though I‘m always you know championing the rights of the criminal defendant, I think they did a terrific job and that must make them sick to their stomach right now thinking (UNINTELLIGIBLE) well maybe that is playing a role in this right now.

BECKER:  I don‘t think so Dan...

ABRAMS:  Jean...

BECKER:  ... because what was not turned over clearly didn‘t affect any expert‘s opinion.  It doesn‘t matter.

ABRAMS:  Jean, lay out for us...

RUSSELL:  I disagree.

ABRAMS:  ... you know these issues of the level of intent.  Like, meaning on some of these crimes there has to have been sort of the actual intent to do a particular act and in some of these other crimes...

CASAREZ:  Right.

ABRAMS:  ... it doesn‘t have to have actually been on purpose, right? 

CASAREZ:  That‘s right.  Exactly.  Your manslaughter counts, that‘s reckless behavior, doesn‘t have to be on purpose.  You‘re exactly right.  Possession of a weapon for an unlawful purpose, you need to possess that weapon inside the master bedroom that night and you‘ve got to form the purpose to point it at or in the direction of Gus Christofi.  That‘s what‘s needed.  Aggravated assault, you‘ve got to use that gun for an assault, which is a pointing at or near the victim Gus Christofi with extreme indifference to the value of human life, and then you‘ve got all the cover-up charges and there is an intent there.  He had to have a mental state knowing that an investigation was beginning or about to begin about what had just happened. 

RUSSELL:  And the other thing, Dan, too, is that the jury instructions were very, very, very prodefendant...

CASAREZ:  Yes.

ABRAMS:  Yes, yes...

RUSSELL:  ... and I think that also, you know—I mean I think the prosecutors were pretty ticked off about that and I think that may play a role...

(CROSSTALK)

RUSSELL:  ... in this as well. 

ABRAMS:  Well we‘ll play the tape back for—Rob says it‘s a conviction.  Jean Casarez is always trying to you know play the—she‘s got to play the middle of the road.  You know I remember when I was at Court TV, I always had to play the middle of the road too.  You know you got to say on the one hand, but I can sense what Jean is thinking here, and Karen Russell...

(LAUGHTER)

ABRAMS:  Coming up, it‘s legal to smoke, but the places where you can light up continue to shrink.  A new proposed law in California would be the first in the nation to outlaw smoking in your own car if a child is along for the ride.  Where will it end? 

Plus my “Closing Argument”—why the president‘s advisers seem to have dropped the ball by insisting that the vice president and president only answer questions together in front of the 9/11 commission. 

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  In recent years, five states have completely outlawed smoking in restaurants and workplaces.  Many cities have similar rules banning smoking in public places and in some places you can‘t even light up at an outdoor stadium or even at the beach.  Now California lawmakers have introduced a bill that would make it illegal to smoke in your own car when children under 18 are present. 

But I ask, if it‘s legal to smoke, how is this any different than exposing kids to fumes from chemicals, nail polish, from glues, et cetera?  Isn‘t this a politically correct effort to jump on the no-smoking bandwagon without actually outlawing smoking. 

I‘m joined by the bill‘s sponsor, California Assemblyman Marc Firebaugh.  Thank you very much for coming on the program.  Appreciate it.  All right, so what of that?  I mean how is this so different than, for example, dangerous fumes and glues and other things that they could have in their cars?  My concern is you‘re just going to start getting into the business of telling parents how to parent. 

MARC FIREBAUGH (D), ASSEMBLYMAN:  Well it‘s different qualitatively.  If you consider a motor vehicle, that‘s a very confined space, and consider a child, a small child in a car seat, for example, they‘re still developing lung capacity, they‘re especially vulnerable to second-hand smoke which we know is very dangerous for young kids and they‘re virtually hostage to the smoking driver.  They can‘t as much as reach over and roll down a window, complain or take the bus.  These kids are held hostage to the drivers. 

ABRAMS:  But kids are always—excuse me—kids are always a hostage to their patients‘ bad decisions, right?  I mean kids have to obey their parents for a lot of bad decisions they make.  A lot of people think, for example, that spanking is horrible, that hitting kids with a belt is cruel, and yet most of the time, we‘re saying, you know what, we‘re not going to start getting in the business of telling parents how to parent.  I mean it just seems to me if you want to make smoking illegal, make smoking illegal.  Make cigarettes illegal.  Try it.  I mean see if you can pass it.  That‘s fine.  But this seems to me to just be sort of this politically correctness run amuck and here just telling parents how to parent. 

FIREBAUGH:  Well, we don‘t intend to make smoking illegal.  We have, you know, a very strong libertarian bent in this state.  People are free to do many, many things.  For example, we allow qualified adults to drive a car, but we require them to wear a seat belt.  We allow qualified riders to ride motorcycles, but we require them to wear helmets, because there‘s a compelling state interest in protecting public coffers.  And here we have kids. 

These aren‘t just anybody.  These are young people who are particularly vulnerable.  Second-hand smoke is not like other kinds of activities.  We know.  We have data, hard data that proves that second-hand smoke kills.  That it brings on many ailments, pneumonia, bronchitis, particularly asthma, which we have such a problem in California and second-hand smoke brings all these things on.  We‘re saying if a responsible adult is irresponsible, if a caregiver doesn‘t exercise common sense and good judgment in protecting their kids, then we have a responsibility to step in and legislate that sound behavior. 

ABRAMS:  Are you going to do the same thing with parents who feed their kids too much junk food and as a result their kids get obese?  I‘ve got to believe that is way more dangerous to children than inhaling some second-hand smoke on a car ride.

FIREBAUGH:  Well you‘d be surprised.  You‘d be surprised.  In fact, the data...

ABRAMS:  I would be shocked if what I just said isn‘t right that more kids are at danger from actually being obese than from sitting in cars when their parents are smoking, I would be absolutely stunned. 

FIREBAUGH:  Well, we have hard data that proves that second-hand smoke is particularly dangerous.  We know what kinds of ailments it brings on.  We think children are especially vulnerable and especially those very young kids in child restraint seats.  Those kids are hostages.  Why should we visit the bad health effects that come on from the habits of their parents or other caregivers upon them?  We know...

ABRAMS:  I‘ll tell you why, because the danger that I see is that the government getting involved in telling parents what to do.  I mean look, I don‘t smoke.  I don‘t like people smoking in my home.  I don‘t allow it in my home, and yet I still think as a matter of civil liberties, if you‘re going to get into the business of telling parents that they can or can‘t smoke in their car, I think you are then going to start getting in the business of telling parents what they can and can‘t feed their children because it is much more dangerous that you have obese children in this country than some kids riding in a car ride where a parent is smoking.  You get the final opportunity to speak.

FIREBAUGH:  Sure.  It‘s a red herring.  Look, the fact is that we have overwhelming data that proves that second-hand smoke is extremely dangerous...

ABRAMS:  And not on obese children?

FIREBAUGH:  Absolutely.  Then we should do that bill—someone should do that bill.  I‘m focusing on second-hand smoke.  We require parents to do a lot of things. We require them to send their kids to school.  We require them to get immunizations for their children.  We require them to be—to exercise common sense and good judgment.  We don‘t allow parents to abuse their children, whether it‘s in the confines of their home or out in the street.

(CROSSTALK)

FIREBAUGH:  So there are some things that we think...

ABRAMS:  All right...

FIREBAUGH:  ... that a responsible adult wouldn‘t do.  When they‘re irresponsible...

ABRAMS:  Got it.

FIREBAUGH:  ... we have to step in.

ABRAMS:  Assemblyman, thanks a lot for coming on the program...

FIREBAUGH:  Thank you for your time.

ABRAMS:  Appreciate it.

Coming up, my “Closing Argument”—why did President Bush insist on having the vice president with him when he talked to the 9/11 commission today?  The president‘s explanation is not particularly persuasive. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, “Your Rebuttal” on using the word “victim” in the Kobe Bryant rape case.  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—who is advising this administration about the 9/11 commission?  The commissioners traveled to the Oval Office today and for over three hours, President Bush and Vice President Cheney answered questions behind closed doors.  But why did they insist on being together?  No one at the administration has even attempted to explain it.  I know what the president‘s critics would say.  That he needs the V.P. to be there to keep their stories straight or to help him, et cetera.

All right, but what is the administration‘s position?  In response to that question today the president said—quote—“If we had something to hide, we wouldn‘t have met with them in the first place.”  What does that have to do with why they appeared together?  The only explanation the president offered—quote—“I think it was important for them to see our body language as well.  How we work together.”

What could that possibly have to do with what information they had before 9/11 and what they did or didn‘t do with it?  This commission is analyzing what was known and done, not how the president and vice president appear when they‘re in a room together.  I‘m certain the president could have done just as well by himself.  Instead, I fear his advisers have created another unnecessary issue when it comes to the panel.  They did the same thing with National Security Adviser Condoleezza Rice.  They initially said she couldn‘t testify and then under pressure, relented.  And as expected, she was impressive. 

So if the president and vice president are both going to spend a

precious three hours of their time answering questions, why not answer

these important questions for three hours each separately?  It takes up

just as much of their time and yet allows them to answer far more

questions.  While this administration was initially wary of the panel, the

president has said again today that it is an important commission that can

·         quote—“Help make recommendations necessary to better protect our homeland.”  He‘s right.  This commission is important.  It‘s too bad that based on some bad advice, the administration has seemed more fearful than appreciative of the commission‘s work. 

All right, I‘ve had my say.  Now, it‘s time for “Your Rebuttal”.  Last night in my “Closing Argument” I criticized the Kobe Bryant defense team for trying to make the lawyering politically correct by saying that prosecutors should not be able to call the alleged victim—quote—

“victim” in court papers, saying the language could prejudice potential jurors against Bryant.  I said prosecutors should be able to call her victim just as defense attorneys should be able to call her accuser and say the allegations are false and nonsense.

From Marion, Illinois, Aaron Black.  “I have to disagree with you concerning referring to the prosecution‘s primary witness as the victim.  Referring to the opposing parties as accused and accuser is simply stating their factual roles, much like the terms defendant and plaintiff.  The descriptions are guilt neutral.”

Well, Aaron, if you want to actually get technical, the state is the accuser, not the complaining witness.  So factually, you have got a problem there.  And theoretically, then prosecutors could make the same sort of silly semantic argument about the defense referring to her as accuser in court papers.  Both sides are advocates.  And the prosecutors are convinced she is a victim.  The defense believes the allegations are false.  Both should be able to say just that. 

Don Bacon from Hartland, Wisconsin.  “Your position defies common sense.  Kobe Bryant has been accused, nothing more at this point.  Your position that allowing the accuser to be called a victim prior to any conviction does in fact create a bias against the accused in the ears of any who hear the word “victim”.”

Well actually, a judge found enough evidence to send the case to trial.  But using your logic, saying the allegations are false would have the same effect.  Creating a bias.  But that‘s what the trial is for. 

And from Winter Park, Florida Dan Freer.  “The Bryant defense team fighting the use of the word “victim” in proceedings tells me that other issues in the case are not really going in the defense‘s favor.”

Also last night we told about Maria Suarez, a legal, legal immigrant who was abducted and sold to a 68-year-old man as a sex slave.  Years later, she was convicted of helping murder him.  Now after serving her 22 years in prison, she‘s facing deportation instead of being able to join her family here in the U.S.  Different opinions about her deportation. 

Shannon Brent from Coos Bay, Oregon.  “She was a terrible victim. 

Then she does what we do not allow.  She took the law into her own hands.  After that, she remains a convicted felon.  She has and now has to be deported.”

You know, I can‘t believe you don‘t have any sympathy for her.  She helped cover up the crime her neighbor committed for another reason.  She was convicted and served her time.  OK.  Fine.  But now she loses her family, too? 

From Cleveland, Ohio immigration attorney Jonathan Bartell.  “There are thousands of long-term legal permanent residents who face the realization of deportation and excludability from the United States and separation from their families either after being convicted of certain crimes or at the completion of prison sentences.  The vast majority of client base are individuals who have been convicted of crimes that are not defined by the state law as either serious or aggravated.  Non-citizens face a penalty more severe than a citizen.”

Well Mr. Bartell, you know, look, on the other hand, you know I view Ms. Suarez‘s case as an exception to the rule.  I don‘t think I would have as much sympathy for the rest of your clients. 

Finally, the controversial images of a dying Princess Diana aired on CBS last week has led Mohamed al Fayed, the father of Diana‘s then boyfriend Dodi to file a lawsuit against the network.  I said as a legal matter he doesn‘t have a case.

Sandy from Michigan says, “Shame on you.  How would you like to see your son‘s death and close friend/daughter-in-law aired for ratings?  I think it‘s called mental cruelty.”

Maybe so, but that is not a legitimate cause of action.  I was just analyzing the law.  I‘m not making any moral judgments. 

Your e-mails abramsreport@msnbc.com.  Thanks for watching. 

Chris Matthews “HARDBALL” exclusive with Donald Rumsfeld up next.

END 

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