updated 5/11/2004 12:15:51 PM ET 2004-05-11T16:15:51

Guests:  Harvey Volzer, David Sheldon, Michael Isikoff, Karen Russell, Norm Early, Ron Fischetti, Aitan Goelman

DAN ABRAMS, HOST:  Coming up, new photos of Iraqi prisoner abuse.  This, as President Bush promises justice for those involved while still defending his secretary of defense. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Court-martial number one connected with the Iraqi prison abuse scandal now set for trial.  This man accused of taking at least one of the pictures.  Why was he snapping photos instead of stopping abuse?  We‘ll find out what to expect in the courtroom. 

Plus, Kobe Bryant back in court, preparing to formally enter a plea to the rape charge.  He‘ll be entitled to a speedy trial, but will his defense team be ready? 

And Martha Stewart asking the judge for leniency at next month‘s sentencing.  One of her arguments, my company needs me.  Will that work? 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  First up, President Bush today promised a full accounting of the prisoner abuse in Iraq.  This as new photos of abused detainees made public.  Before we get into the court-martialed now scheduled, NBC‘s Steve Handelsman has today‘s developments. 

(BEGIN VIDEOTAPE)

STEVE HANDELSMAN, NBC NEWS CORRESPONDENT (voice-over):  To display his concern, President Bush took his whole national security team, Vice President Cheney, security advisor Rice to the Pentagon to talk about how the abuse scandal changes the plan for Iraq and to see a sample of the infamous photos.  This is the latest image to be leaked, an Iraqi prisoner cowering naked menaced by U.S. soldiers with dogs.  Mr. Bush gave Donald Rumsfeld a public pat on the back. 

GEORGE W. BUSH, PRESIDENT:  You‘re doing a superb job.  You are a strong secretary of defense. 

HANDELSMAN:  But this new image shows a bigger Pentagon problem.  These are different U.S. soldiers than the ones seen in photos released earlier.  These M.P.s are already charged.  One, Jeremy Sivits will be court-martialed May 19, facing up to a year in jail.  Was the administration warned that abuse was widespread?  The International Red Cross says yes, that as the war got more intense starting in March 2003, Red Cross inspectors complained 29 times to the U.S. government about systematic prisoner abuse, not just the crimes of a few outlaw M.P.s.  Those secret complaints did get high-level notice. 

SCOTT MCCLELLAN, WHITE HOUSE PRESS SECY:  We‘re aware of some of the issues that the Red Cross raised. 

HANDELSMAN:  Now the president promises full disclosure. 

BUSH:  Those responsible for these abuses have caused harm that goes well beyond the walls of a prison. 

HANDELSMAN:  But who is responsible?  No answer yet. 

Steve Handelsman, NBC News, Washington.

(END VIDEOTAPE)

ABRAMS:  One those seven members of the 302nd Military Police Company accused of abuse at a prison outside of Baghdad is 29-year-old Megan Ambuhl.  She does not appear in any of the photos that have been released to the media, but she had stationed at Abu Ghraib since last October.  She faces charges of conspiracy and dereliction of duty for failing to do anything about the abuse.  She could face a court-martial and possible jail time.  The military says it was Ambuhl‘s job to protect the detainees from abuse. 

Her attorney says the military is claiming guilt by association.  Megan Ambuhl‘s attorney, Harvey Volzer, has visited the Abu Ghraib prison and he joins me now.  Thanks very for coming on the program.  Appreciate it.

HARVEY VOLZER, MEGAN AMBUHL‘S ATTY:  My pleasure. 

ABRAMS:  All right.  On a first sort of general question, it is a valid charge from the military, is it not, to charge someone with dereliction of duty if they knew that abuse was going on and they did nothing? 

VOLZER:  Well, I don‘t prefer charges, so, you know, what the military does is up to the military.

ABRAMS:  I‘m asking you a legal question, though.  I‘m asking you as a legal matter that would be a legitimate charge.  That‘s the way it works, correct? 

VOLZER:  Well it‘s one of the two charges against my client and the elements were considered to be established by the investigating officer when he issued his Article 32 report. 

ABRAMS:  All right.  But I‘m asking you to take a step back—let‘s move on.  Bottom line is that if someone is guilty of something like that, I‘m not saying your client is, if someone is, then this is the sort of charge that they could face.  And in this particular case, let‘s talk about the specifics of your case, she is charged with this.  What is your defense?  Is your defense that she didn‘t know that any of this was happening? 

VOLZER:  No.  Frankly the only reason she‘s charged at all was because she was one of the members of the night shift at the prison.  Every member of the night shift and Private England have been charged. 

ABRAMS:  Did she or did she not know about the abuse? 

VOLZER:  She knew that these events were occurring.  I‘m not going to term it abuse. 

ABRAMS:  Oh, so your defense may be that the—what the military officers were doing there was legit—it may have been legitimate? 

VOLZER:  Yes.  I‘m going to argue that—not that she was following orders, even though she was—but she was not only following orders from the military police NCOs above her, but she was also following the orders of the military intelligence personnel who were in control of the prison and... 

ABRAMS:  But as you know it‘s not a defense to say I followed an unlawful order. 

VOLZER:  Well, that depends on whether the order is unlawful and that has yet to be established...

(CROSSTALK)

VOLZER:  ... court-martial.

ABRAMS:  So you think it may have been lawful to put prisoners in pyramids et cetera.  That may have been a lawful order. 

VOLZER:  Yes, I think it very well may have been a lawful order.

ABRAMS:  Really?  Come on.

VOLZER:  Yes I do.  (UNINTELLIGIBLE) come on.

ABRAMS:  Really...

VOLZER:  Yes, I mean we‘re in...

ABRAMS:  I‘m just...

VOLZER:  ... a war...

ABRAMS:  ... I understand...

VOLZER:  Pardon me...

ABRAMS:  ... but I‘m surprised that you‘re—I mean I can understand defending your client and saying either she didn‘t know about it or she was given an order and she followed it, but the defense to be (UNINTELLIGIBLE) you know what, there was nothing really wrong with it seems to be a little bit of a tough one to win. 

VOLZER:  Well, I don‘t think it will be and that‘s where we disagree.  This is a war situation.  According to everyone, we were there either to have a war against terrorism or a war to ensure Iraqi freedom. 

ABRAMS:  And how does this putting people in pyramids impact that... 

VOLZER:  Well, what happened was these pictures are taken because of the culture in Iraq and other places in the Middle East, males are not dominated by females and males do not like to be naked in front of other males and males don‘t like to be depicted in homosexual activities.  These pictures were subsequently used against the people that I think the Taguba report describes as the worst of the worst, the known terrorists, the suspected terrorists, and they were used because they‘d be effective. 

ABRAMS:  Well, the Taguba report in no way justifies what happens. 

So, that‘s a little bit of a misuse of the Taguba report.  But...

VOLZER:  Well I don‘t think it is. 

ABRAMS:  OK.  All right.  Well, anyway, Harvard Volzer, thanks a lot for...

VOLZER:  You‘re welcome.

ABRAMS:  ... coming on the program.  And we shall see what will happen with your defense. 

VOLZER:  Yes, we will. 

(AUDIO GAP)

ABRAMS:  ... will be turned to the first court-martial.  Again, his client hasn‘t been court-martialed as of yet.  In the prisoner abuse scandal, 24-year-old Jeremy—Specialist Jeremy Sivits will stand trial in Baghdad.  He‘s believed to have taken at least one of the photos of alleged detainees at Abu Ghraib prison.  He‘s charged with mistreating detainees, conspiracy and dereliction of duty because he didn‘t help to protect the inmates from abuse. 

If convicted, he could face a year in prison or a demotion, could also be dishonorably discharged.  Joining me now to talk about what to expect at that court-martial is former JAG attorney David Sheldon, who served as an appellate counsel—defense counsel in the United States Navy for four years representing officers and enlisted members.

OK, before we get to this—the whole issue of the general and I want to go through how court-martials work, et cetera, Mr. Volzer is going to have a tough time with that defense, isn‘t he? 

DAVID SHELDON, FMR. NAVY JAG:  Well I think that your skepticism is real and it‘s something that Americans in total probably share with in terms of the skepticism.  I do think that you have to look at the facts and circumstances and when a military intelligence officer comes in and he‘s a major or lieutenant colonel and he says, hey look, Private First Class England, you‘re from Cumberland, Maryland, we want...

ABRAMS:  Right.

SHELDON:  ... you to go in there and I want you to break these people down.  I want you to influence them, soften them up for us.  Then the question is a lot harder to answer... 

ABRAMS:  But that‘s a different question as to following orders than justifying the behavior.  I mean it sounds like Mr. Volzer is simply saying that there may have been a justification for this behavior.  I get the whole effort at saying I was just following orders, which is a tough defense in and of itself, but the idea that you know this was just a legitimate tool in the war on terror to me seems to be a guaranteed loser. 

SHELDON:  Well I think that it‘s on a spectrum.  The more extreme the behavior is, the harder sell it‘s going to be. 

ABRAMS:  All right.

SHELDON:  Obviously, if there‘s physical abuse, if there‘s raping, if there‘s killing, is what apparently was going on...

(CROSSTALK)

SHELDON:  ... it‘s a lot more of a stretch to argue that that‘s somehow a lawful order. 

ABRAMS:  All right.  Let me go through the issues of court-martial.  There‘s a general court-martial and there‘s what‘s called a special court-martial.  The first court-martial that we know of is which one?  General or special?

SHELDON:  The special court-martial of Specialist Sivits is limited by jurisdiction.  It can only assess a one-year confinement, a bad conduct discharge reduction to (UNINTELLIGIBLE) forfeitures.  It is a federal conviction to be sure, and it‘s something that he‘s going to have to live with for the rest of his life.  It‘s a victory, however, for the defense in the sense that from the standpoint that it‘s low-stakes poker.  You‘re only risking one-year confinement when you go to a special court-martial...

ABRAMS:  How do they decide to just charge someone at a special court-martial as opposed to a general court-martial?  Let me just briefly go through the elements of a general court-martial.  It‘s the highest military and naval judicial tribunal.  At least five officers and a military judge presides as a sort of jury, they vote on guilt or innocence and on sentences, the court sentences according to military code and that sort of so-called jury does not have to reach a unanimous decision.  How do they decide whether to charge someone in a special court-martial versus a general court-martial? 

SHELDON:  Well it‘s solely up to the convening authority.  And when you—meaning the commanding general on site who has command and control over this officer or enlisted person.  So, it can be the vagaries of how severe the actions are that they‘re accused of, whether they‘re cooperating in the defense.  In this case, the fact that they want to move it along and move it along quickly so that they can demonstrate that justice is being done. 

ABRAMS:  On a lot of these initial ones, we‘re going to see some deals, right, cutting deals?

SHELDON:  I suspect so, yes. 

ABRAMS:  And that‘s because these defense attorneys know that this is not a climate where you want to be going to trial. 

SHELDON:  Well I think the evidence is quite clearly overwhelming.  I mean you have the pictures, which are bad enough.  It‘s going to be—I think what you‘re going to see is a contested case down the line where somebody is accused of an interrogation that went awry, where somebody died as a result of the interrogation and their defense is going to be to say, wait a second, we didn‘t do anything wrong.  We were following orders.  It did go south...

ABRAMS:  Yes.

SHELDON:  ... on us, but you know that‘s what happens in these types of interrogations. 

ABRAMS:  Yes.  Yes.  Well...

SHELDON:  And that‘s going to be a tough road to hoe. 

ABRAMS:  Yes, it‘s going to be a tough case to win, I think, for the defense.  But we shall see.  David Sheldon, thanks a lot.

SHELDON:  Thank you.

ABRAMS:  Coming up, the American lawyer arrested last week, suspected of having links to the March‘s Madrid bombing, now his family coming to his offense, but Michael Isikoff, the reporter who broke the story, has the government‘s side.  He joins us next with new details about why the government seems convinced this lawyer knows more than his family claims. 

Plus, Kobe Bryant expected to enter a plea to rape charges as early as tomorrow.  A trial date could be set.  Question—why is the alleged victim back at the courthouse again today? 

And Martha Stewart asking for leniency.  Her lawyers say the judge should go easy on her at next month‘s sentencing hearing.  Why?  Because her company needs her.  Could that really reduce her sentence?  Get this—it‘s worked in the past. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, an American lawyer with suspected links to March‘s Madrid bombing, his family comes to his defense.  We‘ll tell you why and how the U.S. government suspects he may have been involved. 

(COMMERCIAL BREAK)

ABRAMS:  We are back.  A Portland, Oregon attorney taken into custody being held as a material witness in connection with the Madrid train bombings that killed 191 and injured thousands.  Why is he being connected to the March 11 attacks believed to have been the work of al Qaeda?  More now from NBC‘s Kyle Iboshi.

(BEGIN VIDEOTAPE)

KYLE IBOSHI, NBC CORRESPONDENT (voice-over):  Leading up to his arrest, federal agents reportedly monitored Brandon Mayfield around the clock.  He was under constant surveillance.  His family fears their home was bugged.

TOM NELSON, FRIEND OF BRANDON MAYFIELD:  In the last, I think, three weeks I talked to with the family members.  They noted there was some instances...

IBOSHI:  A family friend says there appeared to be at least two cases where someone secretly entered their Aloha home. 

NELSON:  The VCR and the electronic clocks were blinking as they do when you lose power.  They called PGE and PGE said we didn‘t have a power loss there. 

IBOSHI:  On Thursday, federal agents swooped in with warrants to search Mayfield‘s home, office and car.  They took the Portland area attorney into custody in connection with the deadly train bombings in Spain.  Federal agents say Mayfield‘s fingerprints turned up on a bag containing detonators and other bomb-related equipment near a Madrid train station just hours after the attacks.  His court-appointed attorney, Steven Wax. 

STEVEN WAX, BRANDON MAYFIELD‘S ATTY:  The government needs to follow the law, which requires them to provide an affidavit that details in some way the information. 

IBOSHI:  Mayfield made his initial federal court appearance at a secret hearing late Thursday.  The judge issued a gag order. 

NELSON:  There was a transcript made and so there‘ll be a record of it, but the record is sealed. 

IBOSHI:  According to friends, Mayfield converted to Islam in 1989.  He hasn‘t left he country in years.  Military records show Mayfield served nine years in the Army, including time at nearby Fort Lewis, Washington.  He left the service in 19994 and became a lawyer.  Mayfield‘s wife and friends say he‘s a good man who‘s being mischaracterized. 

NELSON:  When you use the word terror or terrorism in this society, anybody that has—is even associated with that term in any indirect way is going to be stigmatized and endangered. 

(END VIDEOTAPE)

ABRAMS:  NBC‘s Kyle Iboshi, thank you. 

Spanish officials now backing off a little bit their initial claim about the fingerprints, saying they‘re unsure whether the print belongs to Mayfield and Mayfield‘s family speaking out, saying it‘s all a big mistake.  But now Michael Isikoff, “Newsweek‘s” investigative correspondent who broke the story, says U.S. officials are quite certain the print is authentic.  He joins me now.

Michael, thanks for joining with us.  Appreciate it.

MICHAEL ISIKOFF, “NEWSWEEK”:  Good to be with you...

(CROSSTALK)

ISIKOFF:  ... but I do want to sort of correct your intro to me saying I was here to give you the government‘s side.  I‘ll give you the government‘s side, but I‘ll also give you what the family and friends of Mr. Mayfield have to say. 

ABRAMS:  That‘s fine.  But your exclusive from “Newsweek”...

ISIKOFF:  Right.

ABRAMS:  ... was about the government‘s position on this, right?

ISIKOFF:  No.  Well, we did probably...

ABRAMS:  Yes.

ISIKOFF:  ... the most complete story which gives you what the government has to say and which what gives you what Mr. Mayfield and his friends and family have to say.  I want to be very clear about that.  The story makes it clear there are a lot more questions here than answers.  But we do have, it is true, this fingerprint, and that is what got all this started.  It is in the view of FBI a absolute match.  They have no doubts that this is Mr. Mayfield‘s fingerprints and they point out what are the odds that on a plastic bag that wrapped a detonator, detonators and dynamite that was matches that used in the attack we were going to find an American convert to Islam who had represented somebody who had been previously prosecuted by the Justice Department in a case the “Portland Seven”, in which the leaders pled guilty to levying war, conspiracy to levying war against the United States. 

Now, that is a pretty startling coincidence if it‘s a coincidence.  That said, let me make clear, the government has presented no evidence that Mr. Mayfield has been to Spain, met with any of the plotters in the Madrid bombing, or as far as we can tell, has a theory at this point as to how the fingerprint could have arrived there. 

ABRAMS:  Here‘s what...

ISIKOFF:  ... this case at this point...

ABRAMS:  ... let me read you what...

ISIKOFF:  ... is more a mystery than anything else. 

ABRAMS:  Let me read you what Mona Mayfield, the wife said...

(CROSSTALK)

ABRAMS:  ... on “Good Morning America”.  She said, “It‘s part of a fingerprint, not fingerprints.  So it was one finger...

ISIKOFF:  Correct.

ABRAMS:  ... they say that each finger has 15 prints.  Eight of those possibly matched.  Spain considers that inconclusive.  However, I don‘t know why the U.S., what those people are doing to say that this is actually his fingerprint.”

Do you have any information as to the answer to that? 

ISIKOFF:  Well the answer as far as the FBI is concerned is it‘s an absolute match.  Now, I mean, look, I haven‘t seen the fingerprint.  “Newsweek” has not subjected it to independent analysis, but generally, in court cases, we do rely on the FBI.  Now how—whether there‘s grounds to challenge this, I simply don‘t know, but I do know that there isn‘t any doubt being expressed by the people who made the decision to put Mr.  Mayfield under surveillance and then detain him as a material witness, at least they‘re not expressing any doubt as to the authenticity of the fingerprint.

ABRAMS:  Mona Mayfield was on the “Today” show.  Here is what she said. 

(BEGIN VIDEO CLIP)

MONA MAYFIELD, BRANDON MAYFIELD‘S WIFE:  Actually, he‘s shocked, first of all.  We‘re all shocked.  I don‘t understand why it would be linked.  We haven‘t been outside of the country for 10 to 12 years.  We haven‘t shipped anything overseas.  I don‘t understand why this would be happening. 

(END VIDEO CLIP)

ABRAMS:  And the government made may not even challenge that.  I mean they may not—they could move forward I assume without necessarily having to show that he had traveled, correct? 

ISIKOFF:  Well, actually, now you‘re into probably what‘s a much more interesting legal question than sort of guilt or innocence in the normal way you look at it.  The whole use of the material witness warrant to detain people, this is something that was very unusual in previous years, was generally the material witness was only used when you had an ongoing criminal trial and you were afraid a witness might flee. 

Ever since September 11...

ABRAMS:  Yes.

ISIKOFF:  ... the Justice Department has used it quite frequently to detain terrorist suspects who they didn‘t have enough evidence to charge with a crime but wanted to take off the street.  Proceedings are secret so you don‘t see the—there‘s no public presentation of the evidence, and in some cases, these material witnesses, there‘ve been about 30 to 40, have been held for months...

ABRAMS:  Yes.

ISIKOFF:  ... at a time with no charges being filed. 

ABRAMS:  And generally that‘s been upheld, there have been some courts that have challenged it...

ISIKOFF:  There was one court...

ABRAMS:  Yes.  Yes...

ISIKOFF:  ... challenged it.  It was overruled. 

ABRAMS:  Yes.

ISIKOFF:  So it‘s been upheld...

ABRAMS:  Yes.

ISIKOFF:  ... but I think this is pretty high stakes...

ABRAMS:  All right.

ISIKOFF:  ... for the government.  They‘re either going to have to sustain this or if not, as we quoted Mr. Mayfield‘s lawyer, Tom Nelson, saying it‘s going to have a lot of egg on its face. 

ABRAMS:  Michael Isikoff, whether you like it or not, you presented the government‘s case very adeptly...

ISIKOFF:  And I...

ABRAMS:  Thank you...

(CROSSTALK)

ABRAMS:  ... come on, Michael...

ISIKOFF:  ... believe the family and friends...

ABRAMS:  ... calm down.  It was your scoop. 

ISIKOFF:  No.  No...

ABRAMS:  It was about the government, Michael...

ISIKOFF:  ... Dan, Dan, Dan, Dan...

ABRAMS:  Come on.  We had the defense‘s side. 

ISIKOFF:  (UNINTELLIGIBLE) shill for the defense...

ABRAMS:  Mike, what are you talking about?  No one is talking about a shill...

ISIKOFF:  No, no...

ABRAMS:  All right, look enough. 

(CROSSTALK)

ABRAMS:  We‘ll talk about this off camera. 

ISIKOFF:  ... unfairly characterize the story.

ABRAMS:  All right, Michael...

ISIKOFF:  Thank you.  Bye.

ABRAMS:  All right.  Coming up, a big hearing coming up in the Scott Peterson case.  We‘ll go live to the scene up next. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Kobe Bryant set to plead to the rape charge, a live report from Eagle is up next.  Plus a trial could be set.  Could the trial start in the next couple of months? 

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

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  We‘re back.  A big day tomorrow in the Scott Peterson case.  We may find out whether the trial will be moved again.  Last week, defense attorney Mark Geragos asked the judge for the move saying his client could not get a fair trial in San Mateo County where the trial is now, and it was already been moved once from Modesto.

Joining me outside the courthouse, Edie Lambert from NBC affiliate KCRA.  So, Edie, the judge moving forward as if everything is on course for opening statements on May 24 (UNINTELLIGIBLE)? 

EDIE LAMBERT, KCRA CORRESPONDENT:  It‘s a little odd, isn‘t it?  Jury selection does move forward, but at the same time they are looking at move this trial.  The defense hoping that none of the people who are qualified to serve on this jury actually end up on the trial.  As you mentioned, the request to move the trial again will be heard tomorrow.  And today we saw some last-minute arguments filed by attorneys on both sides. 

For the defense it really comes down to publicity in this case.  They say that half of the potential jurors already think that Scott Peterson is guilty.  They want to move the trial down to Los Angeles, which is 14 times larger than San Mateo County.  They say down there they‘d have a better shot at finding fair jurors.  The prosecution argues this case has so much media attention that it really doesn‘t matter where you hold the trial.  People in Los Angeles, after all, watch television and read the papers. 

And they say that moving the trial will do no good.

So, as you pointed out, with that decision hanging over the case, jury selection does continue.  Today the court called in an extra 250 people trying to expand the jury pool.  Right now those people are filling out jury questionnaires and the vast majority are being dismissed because they just can‘t serve on a trial that could last five or six months.  Right now we have 66 people qualified for the final jury pool.  Realistically, they need about 10 more before they can seat the jury. 

And Dan, something finally to tell you that I thought was interesting.  In the prosecution‘s arguments filed late today, they pointed out that there is no legal precedent that they could find for moving a trial twice.  We‘ll see what happens tomorrow. 

I‘m Edie Lambert reporting live in Redwood City.  Back to you. 

ABRAMS:  All right, thanks Edie.  Now to the Kobe Bryant case where this week the hoop star is expected to enter his plea to felony sexual assault.  Also this week, a number of legal arguments being heard both behind closed doors and in open court.  Among them whether the alleged victim‘s reported suicide attempts will be heard by the jury.  Before we get to that, let‘s head to the courthouse, MSNBC‘s Jennifer London. 

Jennifer, really two questions for you.  Haven‘t they had this hearing already, and is it true that the alleged victim is in court as well? 

JENNIFER LONDON, MSNBC CORRESPONDENT:  Dan, let me start with your second question.  Yes it is true the alleged victim making a surprise appearance here today.  And what I mean by surprise, simply no one knew that she was coming today and quite frankly, Dan, we‘re still not sure why she‘s here.  We simply can‘t say at this point.

Now, you may recall that she did testify back in March when the rape shield‘s hearing began.  And just a quick refresher, the defense filing a motion saying in this case Colorado‘s rape shield law should be stricken down, if you will, because her past sexual history is relevant in this case because that may explain the injuries the nurse saw.  So she did testify when the rape shield hearing began in March.  It‘s been continued.  We heard some more testimony about the rape shield hearing last month, and again today as well. 

Now a number of items still being discussed, all defense motions.  Dan, all of these happening behind closed doors.  Now let me run down these outstanding defense motions.  One, for starters, a defense motion to suppress evidence and statements made by Bryant.  This includes a T-shirt he was wearing the night of the alleged rape.  It reportedly has some blood from the alleged victim on this T-shirt.

Also, they are talking about statements made by Bryant secretly tape-recorded by investigators.  The defense saying toss these items out.  They were obtained illegally.  Also again, the defense motion to strike Colorado‘s rape shield law.  I already talked briefly what is going on with that.  There is also a defense motion here, a second attempt by the defense to get her medical history included at trial. 

Now the judge has already said no.  Hard copies of her medical records will not be allowed at trial.  Now the defense is saying OK, what about witness testimony about her purported suicide attempts and her taking of prescription medicine.  Dan, again, it‘s not clear why she‘s here and also, we are not sure when Kobe will be arraigned.  They are telling us we will have to wait for all those closed-door hearings that I just discussed to finish first. 

ABRAMS:  All right, Jennifer London, thanks a lot. 

Now, after Bryant enters his plea, by law he‘s entitled to a speedy trial within six months, but the defense could waive that right possibly dragging the proceedings on further.  Also keep in mind, back in March the alleged victim‘s mother personally wrote the judge asking for the case to move as soon as possible so she says her daughter can move on with her life.

Let‘s bring in our legal team—former Denver District Attorney and MSNBC analyst Norm Early and a woman with basketball in her blood, trial attorney Karen Russell, daughter of the great NBA‘s Bill Russell.

All right, first question, is the defense, Karen, going to move forward with this case very quickly do you think?  Once Kobe Bryant pleads, the speedy trial kicks in.  Do you expect the defense team will ask for more delays? 

KAREN RUSSELL, TRIAL ATTORNEY:  I think they‘ll move ahead forward.  I think the only issue, and it really isn‘t that critical, given that Kobe Bryant faces the rest of his life in prison, is whether or not they can maybe move it to September so he could play in the Olympic games and then the NBA season wouldn‘t start until October, so that might be the sort of a perfect timing for him to start the trial, but I think you know they‘re ready to bring it on...

ABRAMS:  Norm...

RUSSELL:  ... and show what a weak case this is. 

ABRAMS:  Norm, will a judge sort of allow the defense to determine when the trial takes place based on Kobe Bryant‘s basketball season? 

NORM EARLY, FMR. DENVER DISTRICT ATTORNEY:  No and it shouldn‘t.  If it were you or me, they would not be determining our trial based upon our schedule.  What‘s going to happen here is that the judge and the attorneys for both sides are going to decide when the case is going to be.  They may have already selected a trial date and I would suspect it‘s probably in August or September.  I don‘t think that the defense is going to try to select a trial date at this time that would be beyond that.  But if it comes to waiving speedy trial, the defense is going to make sure they‘re ready for this trial before they go forward.  And if something should occur where they don‘t feel they‘re ready in August or September, they will request a court for a continuous so that they can represent Mr. Bryant to their fullest. 

ABRAMS:  You know, Karen, why so many of these hearings?  I mean I understand the issues that they‘re facing, but it seems that they‘re repeating some of the issues a lot behind closed doors there.

RUSSELL:  Well I think part of it—I mean I think that when Kobe lost the medical records hearing ruling, I think you know a lot of the experts said, well maybe they‘ll get it in through eyewitness testimony.  I think this just shows when someone has the best defense that money can buy, that they can wage a war on all fronts and so I think it‘s you know aggressive lawyering backed up by money.

ABRAMS:  Remind us, Karen, why is it that her suicide attempt, reported suicide attempts, for example, would be relevant to the question of whether she‘s lying about Kobe Bryant having raped her? 

RUSSELL:  I think all these issues go to credibility and credibility -

·         her ability to perceive and relate events.  So you know if she‘s a bipolar drug-using woman who is on or off the prescription medication, that may impair her ability to perceive the events, to perceive the event with Kobe Bryant and then relate it—relay it in a credible way.  So it all goes to her credibility and it‘s pivotal.

ABRAMS:  But how does a suicide attempt go to that? 

RUSSELL:  I think—well I think the suicide goes to this...

ABRAMS:  Screaming out for help, sort of...

RUSSELL:  Well...

ABRAMS:  She wanted to get her boyfriend‘s attention...

RUSSELL:  Exactly.  It‘s part of this M.O., you know the attention-seeking M.O...

ABRAMS:  Yes.

RUSSELL:  ... defense that the defense is... 

ABRAMS:  Norm, are they going to let any of this in?  Is the judge going to let the majority of these efforts by the defense in? 

EARLY:  I would suspect not.  You know that the medical records were not allowed in because they‘re privileged, just like every American‘s medical records are privileged information.  Insofar as bringing in testimony from friends, relatives and others about her suicide attempt or anything else the defense thinks the jury should hear, it has to be determined by the court that it is indeed relevant.  And at this point, you know it‘s nothing more than a theory by the defense that she was trying to get attention, she was seeking that attention and these were things that she was doing.  That theory has to be convincingly proven to the judge before the judge is going to feel that it‘s relevant and at this point I‘m not sure...

ABRAMS:  But Norm, what if you‘re going to presume the person innocent, for example, and this is always sort of the twist when it comes to the presumption of innocence.  If they‘re going to be presuming the person innocent at trial, that means you‘ve got to presume that something else happened here, right?  It means you‘ve got to presume that there‘s some other explanation and the defense is going to say, well look, we‘re just trying to figure it out.  We don‘t know. 

EARLY:  No, you don‘t have to presume some other explanation, Dan.  The fact of the matter is that the defendant is cloaked with the presumption of innocence.  The prosecution must go forward and prove beyond a reasonable doubt that the individual is guilty of the trial.  You don‘t presume that there‘s some other defense out there that the defendant is entitled to just because there‘s a presumption of innocence...

RUSSELL:  The defense has a constitutional...

EARLY:  Hold on just a second, Karen. 

RUSSELL:  All right.

EARLY:  Many cases go forward...

ABRAMS:  I...

EARLY:  ... with a presumption of innocence where there is no defense presented by the defendant in the case and the defendant still wins. 

ABRAMS:  I‘ve got to wrap it up.  Karen Russell and Norm Early...

RUSSELL:  I never get enough to say. 

ABRAMS:  ... thanks a lot. 

EARLY:  Thank you Dan.  Thanks Karen.

ABRAMS:  All right.  Coming up, could Martha Stewart get a reduced sentence because the employees of Martha Stewart Living need her at work?  Her lawyers say it happened before and it should happen again now.  It can‘t really work, will it? 

(COMMERCIAL BREAK)

ABRAMS:  Welcome back.  Martha Stewart‘s lawyers hoping the judge will go easy on her at her sentencing hearing next month.  One of their arguments, that a stiff sentence will damage her company, Martha Stewart Living, forcing it to lay off some of its 500 employees.  Kind of sounds silly that someone could get a reduced sentence for her company‘s sake.  I mean think of all the parents who don‘t get reduced sentences because of their need to be with their kids.  But Stewart‘s attorneys will correctly cite a 1995 appeals court decision arguing for what‘s called a downward departure, which means Stewart could get a lesser sentence than what is generally required by federal statutes.  In the case they point to, a judge allowed a business owner convicted of violating anti-trust laws to continue going to work while under house arrest for six months because the judge ruled his company and his employees couldn‘t survive without him. 

In the decision they said—quote—“Business ownership alone or even ownership of a vulnerable small business does not make downward departure appropriate.  Departure may be warranted whereas here imprisonment would impose extraordinary hardship on employees.” 

Could that, should that apply to Martha Stewart?  What about all the time her company spent reassuring the public that the brand could survive without Martha?  Joining me now, former federal prosecutor Aitan Goelman, who used to work in the very office that prosecuted Martha Stewart and white-collar defense attorney Ron Fischetti.

All right, so Ron, I understand why they‘re making this argument.  You know what are they going to say to the judge that the company needs her so badly that they shouldn‘t put her away? 

RON FISCHETTI, WHITE-COLLAR DEFENSE ATTORNEY:  You know, they‘re going to say to the judge that her employees may lose jobs.  That the company has lost over $40 million thus far.  They‘ve lost television.  They‘ve lost radio.  They‘ve lost advertising, and that putting her in jail is going to have this type of effect on the employees and some employees may be laid off and lose their job.  It‘s a perfectly legitimate motion to make and the judge under Milakowski (ph), if she wants to, can reduce this sentence.  And you know let‘s not forget that we‘re talking about guidelines are 10 to 16 months, so the judge can impose under the guidelines now a jail sentence of only five months.  So we‘re basically talking about a five-month sentence that she could turn into some type of house arrest so she can continue to do what she can to try and keep the company afloat.  I don‘t think it‘s a bad motion at all.  I don‘t know if it‘s going to be successful, but it‘s one that certainly should be made and maybe granted. 

ABRAMS:  Aitan, no chance, right? 

AITAN GOELMAN, FMR. FEDERAL PROSECUTOR:  It‘s an uphill battle for the defense, Dan.  I mean under the federal sentencing guidelines, you have to be an exception and it‘s got to be extraordinary for you to be entitled to a downward departure.

ABRAMS:  Well (UNINTELLIGIBLE) you‘ve got to admit that when it comes to companies and Martha Stewart Omnimedia, you know she is pretty linked to the company. 

GOELMAN:  But what‘s extraordinary about Martha Stewart and her relation to the company, Dan?  It‘s not—I mean any executive who‘s sent to prison, that may damage her company.  She‘s exceptional because of her image, because the company is based on her image and frankly, you know, the statistics that Ron was already citing shows that it was her conviction of four federal felonies that has already damaged her image.  If she gets house arrest instead of prison, is that really going to rehabilitate her image?  Is that going to make her any more of an effective spokeswoman for her brand? 

ABRAMS:  Yes.  You know, Ron, what kind of disturbs me is I‘ve always said and being somewhat critical of the prosecutors in this case in terms of you know overcharging, in terms of going after Martha Stewart in a way they might not have gone after others is the idea that she acted on behalf of her personal account here.  That she was not some sort of great white collar criminal who was ripping off her company and her stockholders, and yet this effort by the defense seems to link again her to sort of white collar crime by bringing her company into the case. 

FISCHETTI:  Well I‘m not so sure it links her to the company on a white-collar crime.  Let‘s not forget when they charged her with security violations in the very indictment they charge that Martha Stewart was the company.  I mean let‘s not forget that this is a woman, and we‘re talking about you know a judge who is human and the case that you cited, Milakowski (ph), Judge Oak (ph) said in that very opinion that judges are not supposed to leave compassion and leave common sense outside the door. 

We‘re talking maybe about a five-month sentence.  This is a woman who has been severely damaged.  She‘s lost hundreds of millions of dollars.  You know she‘s been defiled in the press and to put her in jail for five months when the company could go down further and employees could lose their jobs, I mean it‘s something a judge can do. 

(CROSSTALK)

FISCHETTI:  I think Aitan‘s right.  I think it‘s a long shot, I don‘t think the judge has to do it, it has to be exceptional, but it‘s something an attorney should make and it can be granted. 

ABRAMS:  Aitan, does she get any credit for the suffering that she‘s endured that Ron is talking about?  I mean the fact that someone else wouldn‘t have suffered as much from this particular crime, does she get any credit for that from the judge? 

GOELMAN:  I don‘t think so Dan.  I mean the problem with that is you‘re saying you know people who have a lot to lose, people who are you know multi hundred millionaires get some kind of extra bonus because they have that to lose and that they don‘t face the same sentencing guidelines that anybody else who doesn‘t happen to be worth half a billion dollars gets.

ABRAMS:  Yes.  Ron final thought.  I‘ve got to wrap it up.

FISCHETTI:  Well, she‘s going to get bail pending appeal.  And I think there‘s a chance she may get some a sentence of some type of house arrest, but as Aitan said, it‘s a very long shot but it‘s a motion that should be made. 

ABRAMS:  Aitan Goelman and Ron Fischetti, thanks a lot. 

GOELMAN:  Thanks Dan.

ABRAMS:  Coming up, my “Closing Argument”—if the administration compensates Iraqi prisoners for the abuse suffered at the hands of American soldiers, as they probably should, how can they continue fighting U.S. POWs tortured by Saddam trying to get some of Saddam‘s money?  It‘s my “Closing Argument”...

(COMMERCIAL BREAK)

ABRAMS:  Coming up, many of you didn‘t like my “Closing Argument” Friday where I defended General Myers and CBS about the Iraqi abuse photos.  Your e-mails coming up.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—in Secretary Rumsfeld‘s testimony last week, he said the administration is seeking a way to provide appropriate compensation to the abused Iraqi prisoners.  Quote - “It‘s the right thing to do” Rumsfeld said.  It is the right thing to do and on its face, it makes good sense.  Compensation represents a symbol of our sorrow and shame to the families of the victims and the Arab world as a whole.  As I‘ve said on many occasions, we‘re supposed to be better.  We‘re supposed to be helping them create a society that reflects the elevated values of a democracy.  One that eradicates the brutality known under Saddam‘s reign. 

But it these abused detainees are going to be paid for their suffering, how can the administration justify fighting 17 U.S. POWs who won a huge verdict against Saddam for the torture and suffering they endured in the 1991 Gulf War.  A judge awarded them nearly $1 billion in damages to be paid from 1.7 billion in frozen Iraqi funds, but a change in the law led the judge to rescind his initial order.  Now on appeal, the administration continues to argue that the frozen funds should go to rebuilding Iraq and it seems now to paying Iraqi victims of abuse as well. 

Our soldiers endured beatings, burning, starvations, mock executions and castrations.  They, too, should be guaranteed compensation.  Now, they‘re not going to get anywhere near $1 billion.  I think they accept that fact.  But as the administration reaches out to the Iraqi victims, they must also reach out to our troops who are not just morally entitled to compensation but legally as well.  In a previous editorial, I said I don‘t want to hear any buts when it comes to the abuses endured by the Iraqis. 

No but look what they did to our troops, no but the investigation went well.  I attacked media apologists who tried to deflect blame and minimize this disaster.  Quote—“trying to put it into context”, I argued, will only prolong the pain.  But paying damages is very different from just accepting responsibility.  The money is designed to send a message.  It‘s a message that should be sent.  We have to ensure it doesn‘t send the wrong one to our own troops. 

All right, I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  In my “Closing Argument” on Friday, I said the Democratic Senator Mark Dayton was wrong to attack General Meyers for calling CBS and asking them to delay the release of the pictures at Abu Ghraib prison.  Senator called it suppression of speech.  I pointed out that we in the media often don‘t report information that officials say could or would put U.S. troops in harm‘s way. 

As always, some of you angry at me including J. Urdan.  “Your rationale for defending the military attempt to influence the CBS broadcast of the prisoner abuse story was unsound.  It is a disturbing breach of the free press to try to avoid a disclosure simply because it embarrasses the military.  Disclosing government wrongdoing is the fundamental obligation of the press in a free society.”

It‘s not a breach of a free press for the general to make the call and say we‘re in some ferocious fighting right now and would you delay disclosure.  Why is it OK?  Because CBS, not the general, made the decision. 

From Dover, Delaware, Jay Lacklen.  “Where in the general‘s job description does it authorize him to negotiate for the administration to suppress a news story?”

Again, it‘s not suppression to ask for a delay.  And I just don‘t understand why so many are so upset about the general just making the call. 

David Gaines from Omaha, Nebraska.  “This was done to spare embarrassment and give some time to figure out how to handle, spin or hide as much as possible, not spare lives.  Seems to me like a bid to buy time, not avoid some situation that would create a special danger.  No matter when the photos were released, the danger would increase.”

All right, you know, if the situation was more out of control with active fighting two weeks earlier, it could have increased the danger at a particularly sensitive time.  If the goal was to do damage control, I would think they would have looked at all the photos before they came out, which they did not.  And more importantly, CBS made this decision not General Myers. 

Lisa Scarniac must not have heard my “Closing Argument” last week about the apologists for the Iraqi abuse.  She writes—when I said that the pictures are terrible, but that I don‘t want to hear that.  Lisa writes, “I‘m not in any way, shape or form supporting abuse of the prisoners, but how about bringing out footage or pictures of what they do to our own men and women.  They treat us no better, if not worse.  Where is the media then?” 

You know, come on Lisa, did you watch our days of coverage of the incident in Fallujah?  More importantly, we are supposed to be better.  Comparing us to the terrorists and barbarians should mean nothing. 

Finally, Raymond Neff.  “I would like to know why it is that we the American public should have to see over and over the pictures of Iraqi prisoners.  Do you feel that is what - this is what the public really wants to see?  We cannot even see the caskets of our own sons and daughters being shipped home.”

Raymond, no one wants to see these terrible photos.  The question is, is it important for to us see them?  As for the caskets, as much as you might like to blame the media for that as well, that‘s an administration policy.  Write to them about it. 

Your e-mails, abramsreport—one word -- @msnbc.com.  We go through them at the end of the show.  Please include your name and where you are writing from.  I‘m more likely to read it on the air. 

Up next, “HARDBALL” with Chris Matthews.  He‘s got Brigadier General Mark Kimmitt on the show. 

Thanks for watching.  I‘ll see you tomorrow. 

END   

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