updated 5/5/2004 12:08:06 PM ET 2004-05-05T16:08:06

Guests:  Gary Myers, Greg Noone, John Tomes, Jeffrey Addicott, John Webb, David Balser, Mercedes Colwin, Dean Johnson

DAN ABRAMS, HOST:  Coming up, the legal side of the expanding investigation into Iraqi prisoner abuse and degradation. 

(BEGIN VIDEOTAPE)

DONALD RUMSFELD, SECRETARY OF DEFENSE:  We‘re taking in—we‘ll continue to take whatever steps are necessary to hold accountable those who may have violated the code of military conduct and betrayed the trust placed in them by the American people. 

ABRAMS (voice-over):  The secretary of defense vows to punish those responsible.  But so far, a lot of finger pointing up and down the military chain of command.  We‘ll talk to the attorney for one of the service men in the photos.  Is the defense really, we were told to do it? 

And later, Scott Peterson‘s attorney asks to move the trial again and now wants more opportunities to throw out potential jurors.  We‘ll get a live report from the courthouse.

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  The Iraqi prison at Abu Ghraib was once considered Saddam Hussein‘s torture facility of choice.  Tens of thousands abused, humiliated, beaten and hanged to death at the notorious spot.  Shortly after the war was won, U.S. forces took control of the prison and Brigadier General Janis Karpinski announced that the bad old days were over.  She welcomed the public to admire the facility she had rehabilitated that would stand as a model for humane treatment of prisoners.  Now she‘s been reprimanded and removed from command in the wake of an investigation into alleged abuse of Iraqi prisoners by American soldiers.  Today, Defense Secretary Donald Rumsfeld addressed the scandal. 

(BEGIN VIDEO CLIP)

RUMSFELD:  Let there be no doubt that this matter will be pursued properly under the uniform code of military justice.  The actions of the soldiers in those photographs are totally unacceptable and un-American.  Any who engaged in such action let down their comrades who serve honorably each day.  And they let down their country. 

(END VIDEO CLIP)

ABRAMS:  Seven military officials disciplined this week, the military announced it was reprimanding six who served in supervisory positions at Abu Ghraib and issued a letter of admonishment to the seven and then there are others who were court-martialed in March, even before the pictures went public.  Staff Sergeant Ivan Chip Frederick is one of them facing a court-martial for allegedly humiliating Iraqi prisoners.  His attorney Gary Myers joins me now. 

Mr. Myers, thank you very much for coming on the program.  Appreciate it.

GARY MYERS, ATTY FOR SSGT IVAN “CHIP” FREDERICK:  Thank you for having me.

ABRAMS:  All right.  First let me ask you, let‘s just talk specifically about the photo, the one photo that we have of your client; it appears that he‘s on top of an Iraqi prisoner.  How do you defend that? 

MYERS:  Well, you know, photos sometimes do speak 1,000 words, but sometimes those words are not the truth.  The simple reality, that photograph does reflect my client sitting on an Iraqi prisoner.  That Iraqi prisoner is a mentally ill prisoner who had a moniker of an expletive boy and that was derived from the fact that he would take his own fecal matter and smear it upon himself and upon his cell walls and one day he became so berserk that the only way to restrain him was to place him between two stretchers and my client sat on him.  That is not abuse. 

ABRAMS:  So why are they taking a picture—you have to admit, again, I have no idea obviously about whether—about this prisoner, but you know, this picture looks like a staged photo of someone, you know, appearing to be kind of proud, and again, I am completely interpreting and I‘m going to let you respond, but you know the layperson looks at that and says, boy, that just looks really bad. 

MYERS:  Well, isn‘t that the great joy of the court system?  That photo and a constitutionally hallowed place like a courtroom takes on meaning because we have witnesses under oath describing exactly what it is.  We have the rules of evidence to protect us from speculation and hearsay. 

And in that setting, this photo takes on a whole different meaning. 

ABRAMS:  All right, let me—speaking of witnesses, Seymour Hersh wrote an article in “The New Yorker”—I‘m sure you know it well—he quotes from what‘s called an Article 32 hearing, which is sort of you know kind of a court-martial type hearing, where Specialist Matthew Wisdom (ph) told the courtroom that this happened when he delivered seven prisoners to Abu Ghraib and I quote—“I saw Staff Sergeant Frederick, your client, Sergeant Davis and Corporal Graner walking around the pile hitting the prisoners.  I remember Staff Sergeant Frederick hitting one prisoner in the side of his rib cage.  The prisoner was no danger to Staff Sergeant Frederick.”  What do you make of that? 

MYERS:  Yes.  Well, again, this is—there were two witnesses that we were able to get before us at the Article 32 proceeding.  One of them was a CID (ph) agent who merely parroted what was already in the investigation and the other was this young man.  That‘s certainly an account, and by the way, an under oath account, that we will have to challenge with respect to whether or not it raises itself to the level of criminal conduct.  And that‘s what we would intend to do...

ABRAMS:  Is...

MYERS:  ... in a courtroom. 

ABRAMS:  Is your defense going to be he was ordered to behave in a particular way?  I mean that‘s what we‘re hearing a lot of is that a lot of the people who have been court-martialed seem to be saying you know we were under orders.  Is that going to be your defense? 

MYERS:  Well, it‘s more complex than that.  Firstly, there is no forensic meaning to the phrase “they told me to do it”.  Under the rules of court-martial, there‘s a defense available with respect to orders and that defense is only available if you did not know that the order was unlawful or if you—if a reasonable person essentially should have known that the order...

ABRAMS:  Let me actually read...

MYERS:  ... was unlawful. 

ABRAMS:  ... from the U.S. Army Field Manual on that very issue.  It says the fact that the law of war has been violated pursuant to an order of superior authority, whether military or civil, does not deprive the act in question of its character as a war crime nor does it constitute a defense in the trial of an accused individual unless he did not know and could not reasonably have expected to know that the act was unlawful.

So I mean it‘s got to be that your defense is my client just didn‘t do any of the things that are being alleged, correct?  Meaning, he did not in any way abuse prisoners.  He did not hit any of the prisoners, because you know you look at these photographs and you listen to the testimony, and somebody was doing some awful things to Iraqi prisoners. 

MYERS:  Well, that‘s—your comment regrettably is inaccurate. 

ABRAMS:  Which part? 

MYERS:  What—well, it was a multiple—compound question, so I‘ll break it apart...

ABRAMS:  Which part was inaccurate, though?

MYERS:  What was inaccurate is that we are talking about whether or not he was ordered to do these things.  The answer to that question is with respect to many things, he was ordered to engage in that form of conduct.  And the question becomes, whether he knew the order was unlawful.  The answer is that he did not know the order was unlawful because he had been reassured upon inquiry that the order was in fact lawful and that the conduct was in fact sanctioned, so there is a viable defense here. 

ABRAMS:  So, he...

(CROSSTALK)

ABRAMS:  So again, let‘s be clear though, so then your defense is going to be, I mean based on what you just said, is going to be yes, he did some of these things, and I don‘t assume you‘re going to get into the details of exactly what he did or didn‘t do, but did some things which certainly viewed objectively would not be—I just lost you.  OK.  Anyway.  We get the point. 

Let‘s bring in the military panel.  We‘ll bring Mr. Myers back in a moment.  International law specialist Greg Noone, former Navy JAG and retired Colonel John Tomes, a former JAG with the U.S. Army.  He is also a former military intelligence officer.  We also got a little view of Colonel Jeffrey Addicott, who was supposed to be part of our panel and I‘m hoping we‘re going to get him as well.

All right, Mr. Noone, let me start with you.  This whole idea of being told by superiors to do something, it sounds like what Mr. Myers was saying in his final comment is well, he could have reasonably been expected to follow these orders because the orders were repeated.  Is that really a legitimate defense? 

GREG NOONE, FMR. NAVY JAG:  Well, certainly Mr. Myers is going to have an opportunity to work through the facts of this event in a courtroom, and as he should, but as far as just your simple I was just following orders defense, if an order is patently illegal, it is up to the service member to seek clarification.  And upon seeking clarification, if he receives the same answer, then that service member is allowed to jump the chain of command or maybe use other aspects with respect to the chaplain or go to the JAG and get clarification on that.  And that is how we train our troops to take orders, certainly follow orders, but if it‘s patently illegal, then you must ask for that clarification. 

ABRAMS:  Mr. Myers is back with us.  And Mr. Myers, that‘s the problem I think that your client has.  If you‘re going to concede any wrongdoing on his part, he still had an obligation to challenge an unlawful order. 

MYERS:  Well, that comment was a comment that had an element of naivety to it in terms of on the ground operations.  Certainly when you are taught that the chain of command is the vehicle that you employ for getting answers and you use that chain of command and the chain of command tells you that this is an appropriate course in a wartime environment, in a prison, the idea that then should—that one should then dash off to see the chaplain, forgive me, I find that to be a bit beyond what is normative in the kind of environment that my client found himself in. 

ABRAMS:  All right, let me ask retired Colonel John Tomes, who‘s also former JAG, also former military intelligence officer.  What do you make?  Mr. Myers is saying Mr. Noone‘s standard is too high to accept. 

LT. COL. JOHN TOMES, (RET.) U.S. ARMY JUDGE ADVOCATE GENERAL:  Well I think the truth lies somewhere in between and it‘s going to be quite factually dependent, but from my experience in military intelligence and in the JAG Corps, including a military judgeship, I certainly think evidence that the accused sought clarification from his own chain of command and was told that it was a lawful order, brings up a viable defense, regardless of whether he might have done more by going to see the chaplain or the JAG or the inspector general.  Because it‘s dammed if you do.  Dammed if you don‘t.  You want to be charged with disobeying a lawful order or do you want to be charged for committing a war crime for following the order?

ABRAMS:  But Mr. Myers is your claim going to be that he was specifically ordered to beat people or humiliate them, et cetera? 

MYERS:  You know, if you don‘t have military experience, the notion of an order takes on a cache that it doesn‘t really exist.  Orders are not given by two people coming to a complete halt looking at each other and a superior officer saying with total clarity, you are ordered to do this.  People who serve in uniform have normal conversations that are instructional in nature, and that can arise to the level of an order without them being as highly stylized.  So the answer to your question is, yes, there were conversations about what to do and how to do them, and disobedience of those kinds of things will result in disobedience of an order. 

ABRAMS:  Colonel Addicott, do you agree with that? 

LT. COL. JEFFREY ADDICOTT, (RET.) U.S. ARMY JUDGE ADVOCATE GENERAL: 

Well it sounds like we‘re skirting around the issue, perhaps, of self-defense, but when you have a soldier that claims that he‘s ordered to beat helpless prisoners, that‘s a hard road to hoe as a defense counsel.  An objective standard is really what we have here and what would an objective or reasonable man think in that type of situation.  So it really depends on the charge that‘s being leveled against this soldier and it sounds like he has a very able defense counsel there and it will be an interesting case to follow. 

ABRAMS:  All right, if you could all just stick around.  Mr. Myers, I know I said we were going to thank you at the end of the segment, but if you don‘t mind sticking around just in case something else comes up, you do seem like an able counsel and as a result I‘d like you to stick around if you don‘t mind. 

MYERS:  That‘s very kind of you.  Thank you. 

ABRAMS:  Coming up, also the secretary of defense vows to punish those responsible.  So far a hot of finger pointing going up and down the military chain of command.  How far could it go?  Our panel is back after the break.

Plus, a story we first brought you last year, an all-star athlete with a full scholarship from a major university convicted of aggravated child molestation, given a mandatory sentence of 10 years.  This after having what a jury essentially found to be consensual sex with a 15-year-old classmate.  Yesterday he walked out a free man.  What happened?  We‘ll talk to him.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, the Iraqi prison-abuse controversy.  A lot of finger pointing up and down the military chain of command.  How far up could it go?

(COMMERCIAL BREAK)

ABRAMS:  As we have been talking about, attorneys for some of the service men and women directly involved in the alleged abuse of Iraqi detainees say they were just following orders.  It‘s a defense rarely used by U.S. military defendants because under U.S. military law, a soldier is duty bound not to follow an illegal order.  Perhaps the most famous case involving the U.S. military personnel claiming that they were just following orders was the My Lai massacre in Vietnam back in 1968.  Three hundred and forty-one unarmed villagers shot to death by U.S. Army troops.  Lieutenant William Calley said he was just following the orders of his senior officer, Captain Ernest Medina (ph).  The defense didn‘t work.  Calley sentenced to life in prison in 1971, but his conviction was overturned three years later and he was released from prison. 

I‘m back with my panel of really people who understand this stuff.  Let me go back to Greg Noone, who is a former Navy JAG and international law specialist.  All right, so the bottom line is it sounds like we‘re going to hear at least from Mr. Myers‘ client and from some of these others that I was told to do X, Y, and Z, and maybe even, you know, we revisited the issue and Mr. Myers says well, you know what, sometimes it‘s not that clear.  An order is not as clear as you might think as a layperson where someone says I order you to do X, Y, and Z, it instead becomes a conversation.  You know, how do you sort of parse out the difference between a conversation and an order and do you even need to in a case like this? 

NOONE:  Well, first I would certainly agree that Gary Myers has more facts and insight into this because of his involvement in this case.  But in taking that and parsing that out as you say, I think that brings us to the next issue, which is the training.  When an individual, whether it‘s just a conversation or maybe a direct order is told to do something, well, what is the training that he‘s received?  Less than 1,000 of the 38,000 MPs in the U.S. Army haven‘t been given any training in correctional facilities.  So...

ABRAMS:  But let‘s even assume that‘s true.  Doesn‘t that mean then you have responsibility both on the part—that doesn‘t mean that the people who actually inflicted the abuse are not responsible, does it?  It means that there just may be more people who are responsible. 

NOONE:  Right, Dan, and you have personal responsibility and then you have command responsibility and I think they‘re really two different issues.  You have the personal responsibility of the individuals that may have done this, and certainly they‘re innocent until proven guilty, but the personal responsibility with respect to assault and battery et cetera, and then you have the command responsibility and their responsibility to their troops with regard to supervision and training and other issues that we need to look at, front to back in this entire issue. 

ABRAMS:  But Colonel Tomes, in a way I guess the question is, when it comes to the guilt or innocence in a court-martial, of the six people who have been court-martialed for actually allegedly inflicting the abuse, does it really even matter what they were—quote—“ordered” or not to do? 

TOMES:  Well, it certainly can be a defense, as you postulated, if they didn‘t know or should have known that the order was illegal.  But beyond that, it‘s also a factor in what we call mitigation, which are mitigating circumstances to reduce the severity of the sentence, and I think if they were actually guilty but were following an illegal order, that is perhaps less culpable from a sentencing standpoint than if they just did it out of their own evil animas as it were. 

ABRAMS:  And you know—very quickly I just want to go to Donald Rumsfeld because he seems to be conceding that there is a major problem.  It‘s as if we‘re sort of talking about this in the abstract, as if there‘s not necessarily a problem here and yet the secretary of defense seems to be conceding that.  Let‘s listen.

(BEGIN VIDEO CLIP)

RUMSFELD:  The fact of the matter is that this is a serious problem and it‘s something that the department is addressing.  The system works.  The system works.  There were some allegations of abuse in a detention facility in Iraq.  It was reported in the chain of command.  Immediately it was announced to the public.  Immediately an investigation was initiated.

(END VIDEO CLIP)

ABRAMS:  And that‘s a fair point worth mentioning is that this investigation was not just spurred by these photographs that the public is seeing.  This investigation was going on a long time before it and they actually asked CBS to hold off on publishing, putting out the pictures for a week or two, which they did. 

All right, stick—I‘m going to ask everyone to stick around, because the question we‘re going to ask next is how far up the chain of command could this go?  Could it go as high as the secretary of defense?  I mean where does it end when it comes to responsibility for these alleged incidents? 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

RUMSFELD:  Let me be clear.  Whatever others may say with respect to responsibility for this activity, as the senior official responsibility for this department, I intend to take any and all actions as may be needed to find out what happened and to see that appropriate steps are taken. 

(END VIDEO CLIP)

ABRAMS:  Defense Secretary Rumsfeld speaking for the first time about the investigation into alleged abuse by U.S. soldiers at a military prison in Iraq.  Seven military officials disciplined this week.  Placing the shared blame on more members of the military, the military announced it was reprimanding six who served in supervisory positions at Abu Ghraib prison outside of Baghdad, issued a letter of admonishment to the seventh.  The penalties most likely will end their military careers.  The woman responsible for all military prisons, including Abu Ghraib, said she didn‘t know anything about this. 

(BEGIN VIDEO CLIP)

BRIG. GEN. JANIS KARPINSKI, U.S. ARMY:  I did not have any knowledge of the investigation being conducted or of these allegations that led to the investigation until it was near complete. 

(END VIDEO CLIP)

ABRAMS:  That‘s Brigadier General Janis Karpinski.  She‘s been reprimanded and removed from command.  But how far up the chain of command do you go when deciding who is responsible?  Let me just show you the chain of command as to where she stands on that chain of command.  You have got General John Abizaid, who is the commander of the U.S. Central Command, then—can we put up the graphic, please?  You got Lieutenant General Ricardo Sanchez, Lieutenant General David McKiernan, the commander of coalition forces and land component.  And then below, then you have Brigadier General Janis Karpinski and that‘s who we‘re talking about here.

Colonel Tomes, how high up can this go in terms of responsibility?  I mean when an act is committed by certain soldiers and they were getting poor supervision, how high up does it go?  What‘s the standard? 

TOMES:  I think it‘s very important to distinguish between criminal responsibility and command responsibility.

ABRAMS:  Important.  Fair point. 

TOMES:  A commander is responsible for everything his unit does or fails to do, but he‘s only criminally responsible when that particular wrong was caused by, say, his or her dereliction of duty or actually issuing illegal orders, so at some point above the M.P. brigade commander, there was probably no criminal activity.  You‘d look at higher levels—did they fail to issue directives to follow the law of war?  Did they fail to ensure that training was done?  Did they actually give some illegal orders?  And if not, they‘re not criminally responsible, but they may still bear command responsibility that could result in something like relief from command...

(CROSSTALK)

TOMES:  ... reprimand or a poor efficiency report. 

ABRAMS:  It‘s an important distinction.  I‘m glad you made it.  General McCaffrey spoke about this.  He really seemed appalled at some of what he‘d heard from General Karpinski.  Let‘s listen. 

(BEGIN VIDEO CLIP)

GEN. BARRY MCCAFFREY, U.S. ARMY, (RET.):  One appalling statement I heard was where she claimed that she was not allowed in a piece of the prison that was under her military command.  Her soldiers were in there.  Any soldier, this is not the values of the United States Army or the armed forces, so the fact that she didn‘t get in there and sort out what was going on was the most appalling single thing I‘ve read about it.

(END VIDEO CLIP)

ABRAMS:  Mr. Noone, how high up is this going to go?  I mean it sure sounds like General McCaffrey is saying it‘s not an acceptable defense.  Can it go higher?  Can it go above General Karpinski?

NOONE:  Well, I agree with Colonel Tomes and I don‘t know that it would go much further than Colonel Karpinski.  However, they do need to look at the entire thing.  And there are several tracks of investigations going on here and they do need to find out where is this blur in between this general who is in charge of the MPs in the correctional facilities and the military intelligence piece.  And who had control over that wing of that facility if colonel—if General Karpinski couldn‘t go in there or didn‘t want to go in there.  So I think that the issue needs to be looked at top to bottom, but I don‘t know that it goes too much beyond her. 

ABRAMS:  Mr. Myers, very quickly, is this going to be part of the defense, is looking up? 

MYERS:  We will—we‘ll follow the evidence wherever it goes, using the vehicles available.  One thing about military justice is it‘s the best discovery system in the entire country. 

ABRAMS:  All right.  Gary Myers, Greg Noone, Colonel Tomes, and Colonel Addicott, who we lost a little while ago, thank you very much for joining us.  We appreciate it. 

UNIDENTIFIED MALE:  My pleasure Dan.

UNIDENTIFIED MALE:  Thank you.

ABRAMS:  Coming up, Marcus Dixon, the all-star athlete serving 10 years for essentially having sex with a high school classmate.  Yesterday the state Supreme Court stepped in and he has now (UNINTELLIGIBLE) walked free.  Prosecutors vow to appeal.  Dixon‘s lawyer joins us.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Marcus told me when he got through dancing and crying, he just said pop, he said it‘s almost all over with.  He said I‘m coming home, I said yes I get to see your ugly face again, don‘t I?

(END VIDEO CLIP)

ABRAMS:  The family of Marcus Dixon learning their son‘s conviction was overturned; he‘s going to spend his first night home in over a year.  We brought you this story back in November.  The all-star athlete with a full scholarship to a major university serving a 10-year sentence after a 15-year-old classmate claimed he raped her, but a jury didn‘t buy it and yet, he still had to serve the time.  Now the state‘s highest court has stepped in. 

NBC‘s Don Teague has the story. 

(BEGIN VIDEOTAPE)

DON TEAGUE, NBC NEWS CORRESPONDENT (voice-over):  Sex between a 15-year-old girl and an 18-year-old high school athlete.  It happened in a trailer classroom at this Rome, Georgia, high school.  The girl says it was rape, he claims it was consensual. 

UNIDENTIFIED MALE:  We made arrangements to—at first arranged for her to come to my house.  She said she couldn‘t leave because she would get in trouble, so the arrangement was for us to go to the trailer. 

TEAGUE:  Jurors also believed the sex was consensual, finding Marcus Dixon innocent of felony rape and other forced sex charges.  But the jury convicted him of misdemeanor statutory rape and aggravated child molestation, which some jurors thought was also a misdemeanor.  Instead, it carries a mandatory 10-year prison sentence. 

KATHY TIPPETT, JUROR:  He doesn‘t belong there.  He just does not belong there. 

TEAGUE:  Prosecutors say Dixon is a sexual predator, who raped a young girl and has a history of sexual incidents at school.  But Dixon‘s supporters claim he was only prosecuted because the girl is white.  His attorney says the law was misapplied in an effort to police teenage sex. 

DAVID BALSER, DIXON‘S ATTORNEY:  The jury found that this was not forced sex between these two teenagers, yet the prosecution for some reason was intent on putting Marcus Dixon away for a long time. 

TEAGUE:  Don Teague, NBC News, Atlanta. 

(END VIDEOTAPE)

ABRAMS:  And in a 4-3 decision yesterday, the Georgia Supreme Court voted to overturn Dixon‘s conviction, saying the legislators never intended that this law be applied in a case like this.  Now remember, his statutory rape conviction still stands.  The D.A.‘s office declined our request for an interview, but told us they will file a motion to reconsider the decision. 

Joining me now is Marcus Dixon‘s attorney, David Balser, and former assistant district attorney from the nearby Lookout Mountain District, John Webb.  Thank you both for joining us. 

All right, I know what Mr. Balser‘s position is.  We‘ve talked about this case quite a bit.  He‘s very ploughed with the decision.  Mr. Webb, why wasn‘t this just a case of justice being done and looking at it from the sort of macro perspective, this jury only convicted this man of a misdemeanor statutory rape, yet he served 10 years, it seems that justice was done, no? 

JOHN WEBB, FMR. ASST. D.A., LOOKOUT MTS. DISTRICT:  Well, no.  That‘s not what the jury found.  The jury was given a choice of several different charges.  Two of those charges were the misdemeanor statutory rape, and one of the more serious charges was aggravated child molestation.  The aggravated child molestation carries elements, which were different than the statutory rape charge.  You know one of the things that‘s curious to me is, you know, I think that the jury might have been maybe upset that the judge didn‘t have any discretion on the sentencing, that there was a mandatory minimum 10-year to serve sentence there, but nobody can tell me that 12 individuals of this state who are at least intelligent enough to know how to register to vote would think that a charge of aggravated child molestation was not a serious offense.  So...

(CROSSTALK)

ABRAMS:  And I have to say...

WEBB:  ... felt that something was more serious here than just statutory rape.

ABRAMS:  Yes and I have to—Mr. Balser, look, it doesn‘t really matter to me whether the jurors thought it was a misdemeanor or a felony.  Jurors aren‘t supposed to be involved in the sentencing anyway.  But what to make of Mr. Webb‘s comment that you know, look, these jurors convicted of the molestation charge, period? 

BALSER:  Well, what we argued and what the Supreme Court found is that the aggravated child molestation charge never should have been brought in the first instance because there is a specific misdemeanor statute, the statutory rape statute, that governs the very conduct that was at issue here, which was sex between teenagers less than three years apart.  And what we argued and what the Supreme Court found was that a more general, broadly worded statute that governs the same conduct that is protected by a misdemeanor statute cannot be used to send somebody away for 10 years when the sentence called for under the lesser statute is a misdemeanor penalty. 

ABRAMS:  Mr. Webb, do you think...

BALSER:  And that was the holding of the court. 

ABRAMS:  ... do you think it‘s fair, do you think 10 years was an appropriate sentence? 

WEBB:  Well, I did not serve on that jury and I did not prosecute the case, so I cannot state specifically whether or not 10 years would be a fair sentence or not.  What I can tell you, though, is this.  The Georgia Supreme Court absolutely did not hold that the district attorney in this case did anything inappropriate by bringing these charges.  In fact, Justice—as Justice Heinz (ph) pointed out in his dissent, it is perfectly legitimate for a district attorney to bring several different counts of difference offenses that contain similar elements and let the jury sort through those and decide what, if any, they‘re going to go ahead and convict upon and certainly the elements of the aggravated child molestation as the Georgia legislature has written that charge, were here.  Now whether or not the Georgia legislature should go back and revisit those elements, absolutely, I think they should. 

ABRAMS:  Yes and Mr. Balser, you think—your side that you believe that this was in part driven by race, correct?  Meaning, because the prosecutor has discretion just because he can doesn‘t mean he has to go about charging these different crimes, correct?  You believe it was race...

(CROSSTALK)

BALSER:  I never have alleged nor do I have any reason to believe that what motivated the prosecution was race.  There was a heavy racial element in the case in that there was a lot of testimony at trial about the racist aspects of the young woman who accused Marcus‘s family, but I‘ve never said that the prosecution in this case was motivated by race. 

ABRAMS:  All right.  Some on your side...

BALSER:  I have no reason to believe that. 

ABRAMS:  That‘s fine...

BALSER:  Some people have alleged that...

ABRAMS:  Yes.

BALSER:  ... but I never have. 

ABRAMS:  OK, fair enough.  But you think that—do you believe that the reason this woman brought these charges or—she didn‘t bring the charges—the reason she went to the authorities was because her father found out that she‘d had sex with a black man? 

BALSER:  Well, the evidence at trial certainly suggested that, and the jury did not believe that she was raped.  She charged Marcus with rape, the jury heard all the evidence, and he was acquitted of rape, and that‘s what we know about what happened. 

ABRAMS:  All right, David Balser and John Webb, thank you very much for taking the time. 

UNIDENTIFIED MALE:  Thanks for having us Dan.

ABRAMS:  Coming up, Scott Peterson‘s attorney asking that the trial be moved again, this time to L.A., but the defendant doesn‘t get to just pick which county the trial will be in.  Is the judge really going to move it again?  A live report.  Coming up. 

And the Michael Jackson case, why one viewer compares the conspiracy charge filed against him to her mother‘s meatloaf.  Your e-mails coming up.

(COMMERCIAL BREAK)

ABRAMS:  Now to the Scott Peterson case where the defense is asking to move the trial again—this time to Los Angeles.  Defense attorney Mark Geragos said his client can‘t get a fair trial in San Mateo County, where the trial was already moved from Modesto.  Among his arguments, Geragos cites a—quote—“media frenzy” in the area and also notes at least four people he calls stealth jurors, people he says lied to try to get on the jury. 

Quote—“The prejudice against Mr. Peterson is apparently so strong potential jurors are willing to provide misleading or false information to the court just to obtain a seat on the jury in order to convict Mr.  Peterson and sentence him to death.”

If the judge refuses to move the trial, Peterson‘s defense team suggests give him more peremptory challenges, meaning opportunities to dismiss potential jurors.  Each side is allowed to dismiss 20 without giving a reason.  The defense is asking for an additional 10.  Before we get to all of that, jury selection still moving forward. 

Joining us now from outside the courthouse, Susan Siravo from NBC station KNTV.  So Susan, what‘s the latest? 

SUSAN SIRAVO, KNTV CORRESPONDENT:  Well Dan, it‘s still very much a slow process here.  The court has only qualified 59 people and that‘s out of 1,000 who filled out juror questionnaires.  About two-thirds of the prospective jurors were excused for financial hardship.  More than 300 others were asked back, but the court has yet to reach the number it needs, which is 70, to move on to the next phase of jury selection. 

Last week, for the first time, Judge Alfred Delucchi confirmed he will bring in another panel of 100 jurors.  That will happen this coming Monday, the day before Mark Geragos will argue his change of venue motion.  Opening statements in this case have been pushed back one week.  We‘ll see if that‘s enough time to get all the people they need to serve on this jury. 

That‘s the latest from Redwood City.  Dan, back to you. 

ABRAMS:  Susan thanks a lot.  All right.  Look, Peterson I don‘t think is going to get another change of venue.  Let‘s bring in our team and see if I‘m wrong—former San Mateo prosecutor Dean Johnson and criminal defense attorney Mercedes Colwin. 

All right, Mercedes, look, Mark Geragos I think has zero chance of getting the case moved again and I‘d say maybe a 10-percent chance of getting these extra preemptory challenges.  Look, the bottom line is he cites all these studies, which indicate that people believe that Scott Peterson is guilty.  Well, you know, I don‘t know that that‘s really going to be a whole lot different in any county in California. 

MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY:  Well, look at history, though.  I mean if we look at O.J. Simpson case, it was tried in L.A.  I mean certainly that was the first case that had this monstrous media publicity surrounding it, and he presumably got a fair trial in L.A.  I mean—and that‘s—I think it‘s long overdue, Dan...

ABRAMS:  Oh, so we should say—wait, wait—we should say since O.J. got a—quote—“fair trail” in L.A. that would be a good place to move the Scott Peterson case? 

COLWIN:  No, I think—frankly I think this motion is long overdue.  When Scott Peterson first arrived in San Mateo, there were billboards saying man or monster.  Our poll says 87 percent of the individuals think that Scott Peterson‘s guilty.  This is on the first day at San Mateo.  There were billboards, people with signs, there have been polls ever since.  Frankly, if I were Geragos, I would have filed my motion then and not waited through jury selection...

ABRAMS:  You know...

COLWIN:  ... because it was obvious that it was going to be problematic. 

ABRAMS:  Dean, the bottom line is the courts have ruled again and again that even when you have items that are prejudicial to a defendant, that‘s what jury selection is for. 

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Well, exactly.  The voir dire process is designed to prevent problems like prejudging jurors getting on the jury and the big problem that Geragos faces here, and the problem that he does not address in 231 pages that he filed in this motion is the fact that we now have 59 people there who have sworn under penalty of perjury that they have not prejudged this case and that they can be fair. 

ABRAMS:  What about these stealth jurors...

(CROSSTALK)

ABRAMS:  ... though, Dean?  What about...

(CROSSTALK)

JOHNSON:  I was coming to that.  I was coming to that.

ABRAMS:  Go ahead.

JOHNSON:  His answer to that, of course, is that all these—most or all of these 59 people are lying.  They‘re stealth jurors.  And the fact of the matter is, this stealth juror that we‘ve been hearing about for so long is sort of like “Big Foot”.  There have been reported sightings, but there‘s really no hard evidence...

COLWIN:  That‘s not true.  There‘s already four confirmed...

(CROSSTALK)

COLWIN:  ... individuals that have lied to get on the jury.  We know that already. 

JOHNSON:  Oh no, no, no, no, no...

COLWIN:  So certainly Dean...

JOHNSON:  Excuse me.  Excuse me.  We had what we called the Perry Mason moment when Geragos thought he had found his first stealth juror.  He confronted the woman.  She stood extremely well under his withering cross-examination.  He had a confidential informant who had supposedly told him this juror was lying. 

COLWIN:  That confidential informant...

JOHNSON:  But there were at least five other witnesses who were witnesses to the same conversation and said this woman was not lying and she had never said that she was biased against Mr. Peterson. 

COLWIN:  But frankly, the proof is this, though, Dan.  We have 1,000 individuals that have participated in this survey. 

ABRAMS:  (UNINTELLIGIBLE)

COLWIN:  Fifty percent of them say we believe he‘s guilty.  I mean that is extraordinary.  If we move to another venue, you bring it to L.A.  where it‘s much larger, there aren‘t those local papers like there are in San Mateo that every single day there‘s an article.  I did a Google search...

ABRAMS:  But are you saying...

COLWIN:  ... and I said that every single day since December 25, Dean, “Modesto Bee”, which is in the same television area as San Mateo, has run an article, every single day... 

ABRAMS:  But see—wait a second...

(CROSSTALK)

ABRAMS:  ... Mercedes, the test is not...

(CROSSTALK)

ABRAMS:  Hang on a second...

JOHNSON:  There is nobody...

ABRAMS:  ... the test is not whether someone could have been prejudice.  What you sound like you‘re saying, Mercedes, is literally they cannot, the 70 people who they will have qualified to go into this jury pool, even though each side has 20 opportunities to kick off whoever they want, that they cannot find even 12 people out of 1,000 who haven‘t developed opinions about the case.  Come on.

COLWIN:  I think it‘s problematic in certain areas, especially when you have local media that saturates them with articles every day.  Look, San Mateo has 700,000 residents.  L.A. is far larger than that and they‘re not saturated every day...

ABRAMS:  You don‘t get to pick it...

COLWIN:  ... with articles. 

ABRAMS:  ... because you‘re the defense.  You don‘t get to just say this is where I want it and therefore I get it. 

COLWIN:  Dan, this man‘s life...

(CROSSTALK)

COLWIN:  ... is at stake and I understand...

(CROSSTALK)

COLWIN:  ... and I think it‘s a reasonable argument and I believe in it...

ABRAMS:  All right...

COLWIN:  ... but frankly this man‘s life is at stake.  We have to go that extra mile.

ABRAMS:  I‘ve got to wrap it up.

COLWIN:  I would do it.

ABRAMS:  Dean Johnson and Mercedes Colwin, this conversation will continue. 

COLWIN:  Thank you very much, Dan. 

ABRAMS:  Jayson Williams only convicted of covering up his crime.  He may now only be sentenced to probation.  Does it make sense that he could get probation and Martha serves time?  It‘s my “Closing Argument”. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, you‘ve heard the saying it‘s not the crime that gets you.  It‘s the cover-up.  But is that a legal copout?  It‘s my “Closing Argument” coming up.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why have we been seeing some questionable outcomes when the cover-up becomes the crime?  Three recent high profile cases where the defendant was convicted of hindering an investigation, but for one reason or another not charged or convicted of the underlying crime.  It seems counterintuitive that Martha Stewart, banker Frank Quattrone and former NBA star Jayson Williams would all be convicted of covering up, well, non-crimes. 

Quattrone convicted yesterday of obstruction of justice and witness tampering based on e-mails he sent out after a bank fraud investigation was launched.  He encouraged employees to follow the company policy of destroying documents, a policy that was supposed to be suspended because of the investigation, but he was never charged with a bank fraud, just for the e-mail. 

Martha Stewart, of course, charged for lying to investigators about insider trading that she was never charged with either.  And the jury in the manslaughter trial of NBA star Jayson Williams finding him not guilty of aggravated manslaughter and assault.  While they couldn‘t reach a verdict on reckless manslaughter, they found him guilty of tampering with witnesses and evidence, but again in connection with what crime? 

Yet the irony is that Quattrone arguably did the least to cover up his non-crime.  Just writing an e-mail as compared to Stewart who repeated her lie to federal investigators, but he will likely face the most time behind bars, about 18 months.  And Williams, who by far did the most, allegedly wiping off the gun and ordering that his clothes be thrown away, could get the least time, probation, if prosecutors choose not to retry him on the reckless manslaughter charge. 

These are back door convictions, not improper, but legal copouts. 

It‘s often easier to prove a lie or a cover-up than the actual crime.  Prosecutors shouldn‘t make a habit out of pursuing these cases if they don‘t believe the person will be convicted of the actual crime.  The Williams‘ case doesn‘t apply there.  So while you can‘t run an effective legal system with people lying or even covering up an effort to avoid prosecution, we also need to make sure that the limited resources available to prosecutors are primarily focused on real criminals. 

I‘ve had my say, now it‘s time for “Your Rebuttal”.  On Friday, former

NBA star Jayson Williams found not guilty of aggravated manslaughter for

the death of his limousine driver Gus Christofi.  The jury didn‘t reach a

verdict on reckless manslaughter, even though Williams admits he was

holding the gun.  He said it was a mistake

Albert Ging writes, “Is it not considered a reckless act to go drinking, return home, and play with your guns, which then results in the needless death of another human being?  To simply call that a tragic accident is as tragic as the act itself.”

From Albuquerque, New Mexico, Lisa Gianardi.  “Why do prosecutors even charging athletes for anything?  Jurors are so enthralled with the person on trial it‘s impossible for them to convict them on any felony that requires the athlete to do serious time.  Tonight one is walking in the front door of his 30,000 square foot mansion and will sleep in the same room where he shot a man to death.  Justice is not blind.”

The jury did find that Williams was guilty of tampering with evidence and that he tried to cover up the incident after Christofi was shot. 

Louis Mountbatten from Wakefield, Massachusetts asks, “How can Jayson Williams be found guilty with tampering with the evidence of a crime when he was not found guilty of the crime?  If the jury found there was no crime, then there is no evidence of a crime.”  I.e., my “Closing Argument”.

And yet from Carlisle, Pennsylvania, Stacey Brewer.  “He has two children at home.  It would have been tragic for two children to visit their father in prison for something that was an accident.”

Also on Friday, Michael Jackson formally arraigned on 10 felony counts pled not guilty, including one important new charge of conspiracy where the grand jury found enough evidence that Jackson and others plotted to commit child abduction, false imprisonment and extortion. 

Wanda Thompson from New York City compares this new charge to her mother‘s cooking.  “The District Attorney‘s addition of the conspiracy charge reminds me of my mother‘s use of bread crumbs in her meatloaf.  She was trying to hide the fact that there was only a hint of meat in the meatloaf.”

After the arraignment, Jackson issued a brief statement saying—quote—“I will always love this community from the bottom of heart.”  The same community from which the jury pool will be chosen. 

Sharol Johnston writes, “Michael Jackson just doesn‘t get it, does he?  He‘s been indicted on 10 felony counts and he insults the prospective jury pool by making a speech that sounds like he just won the Santa Barbara County Citizen of the Year Award.”

But, from Santa Maria, California, Cynthia writes, “I‘m sure that you have found in your recent visits to Santa Maria that we are a great community.  Why would you question or criticize anyone making that observation?”

Cynthia, I love the people of Santa Maria, but I didn‘t mention that in the limited time I had on my show.  You have to ask in a minute-long press conference why else would he make sure to say that?  It says nothing about his guilt or innocence, but I‘m going to continue to point out these little moves by either side in all the big cases so that you can decide for yourself. 

Your e-mails, abramsreport—one word -- @msnbc.com.  Please include your name and where you‘re writing from.  I will respond at the end of the show. 

Coming up next, “HARDBALL” with Chris Matthews.  Chris talks with “The New Yorker” Seymour Hersh on the abuse of Iraqi prisoners.

Thanks for watching. 

END   

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