updated 5/11/2004 11:52:43 PM ET 2004-05-12T03:52:43

Guests:  Lawrence Korb, Raymond Tanter, Jeff Fox, Jeralyn Merritt, Joe Episcopo, Dean Johnson

DAN ABRAMS, HOST:  Coming up, an American civilian beheaded in Iraq, Islamic terrorists try to link the murder to abuse suffered by Iraqi prisoners. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  The administration now deciding whether to release more photos, even videos from Abu Ghraib.  Is it better to get them all out now? 

NBC News exclusive—the other people named in Michael Jackson‘s indictment.  We‘ll tell you who they are, and what happens to them now. 

And motion denied.  The Scott Peterson trial is staying put.  The defense losing an effort to move the case again.  Opening statements scheduled to start this month.

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket today, there are more photos and videotapes of American soldiers allegedly abusing Iraqi detainees the public has not seen yet.  Question, should they be released now?  We‘ll get to that in a moment. 

First the author of the report documenting the abuse of Iraqi detainees on Capitol Hill this morning, answering to the Senate Armed Services Committee.

Also today an Islamic group posted a video showing militants in Iraq beheading a U.S.—really terrorists in Iraq, beheading a U.S. civilian.

NBC‘s Steve Handelsman has the story. 

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE:  (UNINTELLIGIBLE)

STEVE HANDELSMAN, NBC NEWS CORRESPONDENT (voice-over):  The video was poor quality, but the doomed American‘s voice is audible.  I‘m Nick Berg, he says, from Philadelphia. 

UNIDENTIFIED MALE:  ... Philadelphia.

HANDELSMAN:  The body of the 26-year-old civilian contractor was found Saturday in Baghdad.  This video was released today by a radical Islamic Web site.  The man in the middle is said to be Iraq‘s al Qaeda commander Abu Musab al-Zarqawi.  Before beheading Berg on camera, the terrorist leader claims the murder is in retaliation for the abuse of Iraqi prisoners.  U.S. officials had warned that the prison scandal could cost U.S. lives in Iraq.  Senators today called in General Antonio Taguba, who interviewed accused M.P.s and abused Iraqis. 

UNIDENTIFIED MALE:  How did this happen? 

MAJ. GEN. ANTONIO TAGUBA, AUTHOR OF REPORT ON PRISONER ABUSE:  Failure in leadership, sir, from the brigade commander on down, lack of discipline, no training whatsoever, and no supervision. 

HANDELSMAN:  Taguba says the abuse was the M.P.‘s idea. 

TAGUBA:  We didn‘t find any order whatsoever, sir, written or otherwise that directed them to do what they did. 

HANDELSMAN:  Democrats don‘t buy it. 

UNIDENTIFIED MALE:  These attempts to extract information from prisoners by abusive and degrading methods were clearly planned and suggested by others.

HANDELSMAN:  But Pentagon officials deny that Iraqi prisons were run like Guantanamo Bay.  Where, with special permission, U.S. guards can hood and strip al Qaeda prisoners to make them talk.  But al Qaeda has struck back in Iraq, even dressing Nick Berg in orange, like the jumpsuits worn by Guantanamo detainees.  Berg‘s parents say they knew their son was beheaded, but they say they cried when they learned the killers made a tape and put it on the Internet. 

Steve Handelsman, NBC News, Washington. 

(END VIDEOTAPE)

ABRAMS:  (UNINTELLIGIBLE) Two weeks ago, we saw the first images of Iraqi detainees allegedly being abused by U.S. soldiers broadcast on national television.  The American shown smiling, giving the thumbs-up sign as hooded Iraqi detainees were forced to make human pyramids and imitate homosexual acts.  Days later on the cover of “The Washington Post” a new photo of a detainee lying naked on the floor of a prison as a female officer clutched a leash attached to the prisoner‘s neck. 

After that, a new photo, this one showing a naked Iraqi prisoner surrounded by American soldiers and dogs.  Secretary Rumsfeld admitted there are more to come, photos and videotapes.

(BEGIN VIDEO CLIP)

DONALD RUMSFELD, SECRETARY OF DEFENSE:  It‘s going to get still more terrible, I‘m afraid because there‘s still a good deal more pictures and videos. 

(END VIDEO CLIP)

ABRAMS:  The question now, should the government make those additional photos and videos public now?  According to “The New York Times”, some Defense Department officials say releasing the photos might be perceived as influencing the criminal investigation.  It might also compromise the privacy of those featured in them.  But others say it is better to release them now avoiding a situation where the remaining photos are sort of leaked out slowly. 

Lawrence Korb was assistant secretary of defense during the Reagan administration.  He says the administration has no choice but to release the photos now.  He joins me along with Raymond Tanter, a former member of the National Security Council also during the Reagan administration who thinks there are serious problems with releasing the photos now. 

All right, gentlemen, thanks very much for coming on the program.  Appreciate it.  Let me play one more piece of sound from Donald Rumsfeld—this is number one here—before we talk about this.  Let‘s listen. 

(BEGIN VIDEO CLIP)

RUMSFELD:  If these are released to the public, obviously it‘s going to make matters worse.  That‘s just a fact.  I mean I looked at them last night, and I—they‘re hard to believe.  And—so be on notice, that‘s just a fact.  And if they‘re sent to some news organization and out of—taken out of the criminal prosecution channels that they‘re in, that‘s where we‘ll be, and it‘s not a pretty picture. 

ABRAMS:  Lawrence Korb, if that‘s true, why release them now? 

LAWRENCE KORB, FMR. ASST. SECY. OF DEFENSE:  Well, we‘ve got to get this whole episode behind us because if you don‘t release them, people are going to imagine the worst.  We‘re never going to be able to convince the people in the Muslim world that we‘re taking this seriously if it keeps on dripping out, and the longer that this goes on, the more anxiety there is going to be about it.  We don‘t get this behind us, we‘re not going to be able to convince those millions of people in the Muslim world that we‘re not as bad as some of these terrorists claim that we are. 

ABRAMS:  I agree with you on that as to getting this behind us.  But you know you say that people will just imagine.  I think seeing the photos is worse than people are going to imagine, it seems to me.  It‘s the visual that has made this such a big problem. 

KORB:  Well, but don‘t forget, we‘ve already got photos released.  So people‘s imaginations are already in gear, and Don Rumsfeld said that these are even worse.  So people are going to imagine it regardless of what you do. 

ABRAMS:  Raymond Tanter, what do you think of that? 

RAYMOND TANTER, FMR. MEMBER NAT‘L SEC. COUNCIL:  Well, my friend Larry Korb is arguing politically.  And I think that it‘s very important that the guilty be convicted, and we should make sure that the innocent go free.  In that respect, the military code of justice specifies a procedure.  You can‘t court-martial until the investigatory process has run its course.  So I would say that as in tennis, when you‘re confronted with a situation of where to hit the ball, you solve the riddle by hitting up the middle.  That is to say you release some of the evidence that would not harm the prosecution, and therefore you would appeal to the politics of the matter.  And—so you, in effect, you‘re solving the riddle by going up the middle Dan.

ABRAMS:  Why can‘t they keep some—why can‘t they keep these photos under seal?  I mean I‘ve got to believe that they‘ve got a way.  Look, I cover a lot of high profile cases who don‘t—you know the lawyers don‘t have the sort of power of this sort of—this high level government officials and yet they manage to keep lots of pictures secret.  Why is it that it‘s almost inevitable that all of these pictures and videotapes are going to get out? 

TANTER:  Dan, in the digital age, you have kids, 18, 19-year-old kids with cameras who can e-mail back as attachments photographs.  So the evidence will leak.  The issue is should the administration release everything?  I say no.  Release that which will not incriminate—will not interfere with the criminal justice process, Dan. 

ABRAMS:  All right.  Let me talk about this issue that Donald Rumsfeld and General Myers both talked about and that is if that they have to protect the sanctity, as Raymond Tanter points out, of the criminal investigations.  Let‘s listen to what Donald Rumsfeld and General Myers said about that and then I‘m going to ask Lawrence Korb about it.

(BEGIN VIDEO CLIP)

RUMSFELD:  Let me say that each of us at this table is either in the chain of command or has senior responsibilities in the Department of Defense.  This means that anything we say publicly could have an impact on the legal proceedings against those accused of wrongdoing in this matter. 

GEN. RICHARD MYERS, CHAIRMAN, JOINT CHIEFS OF STAFF:  We are now in the middle of a judicial process regarding detainee abuse.  And because of my position, I have to be careful I don‘t say anything that can be interpreted as direction or pressure for a certain outcome in any of these cases. 

(END VIDEO CLIP)

ABRAMS:  And Lawrence Korb, the argument goes, if they start releasing these photographs and videotapes that could impact the proceedings that are ongoing.

KORB:  Well,  I think that that‘s a rationalization for the fact that they didn‘t realize how serious this was going to be.  Remember when General Myers asked CBS not to release the photos, he said nothing about prejudicing the rights of any of the people they were doing investigations on.  He said it would make it more difficult for us to deal with the situation in Fallujah.  And remember these are not states.  These were not taken by the Department of Defense.  These were taken by individuals and so the idea that somehow or another, if you get these out there it‘s going to prejudice the case, this is just a rationalization for not doing what you don‘t want to do because they had hoped that this would go away and remember, when you have a court-martial, if you have a special court-martial, you can ask for a judge.  You can ask for - to have - be judged by your peers.  You have a right to select who‘s on there...

ABRAMS:  Yes.

KORB:  ... and if you find out that somebody has already made up their mind you can do what we do in civilian trials, not put them on there.

ABRAMS:  Raymond Tanter, it just seems to me that on balance, as you point out, these are going to get out.  We might as well just put this episode behind us.  We‘ve got to sort of take our medicine.  It‘s going to taste horrible for a short period of time and then let it go down and try and put it behind us.

TANTER:  Dan, politically, President Bush would help his political fortunes were he to release now.  But President Bush is following a principled position.  For that, I think we should be most grateful.  And that is to say he‘s following the position that the court should not allow or the code of military justice should not be violated in such a way that the guilty can go free. 

ABRAMS:  Yes, I don‘t know.  It seems to me that the big picture, though, may be more important here even than the individual court-martials.  And that is coming from someone who, you know studies, cares about immensely the judicial process.  This just may be even bigger. 

TANTER:  Well, Dan, the burden of proof is on those who would deny due process. 

ABRAMS:  Yes...

KORB:  ... Dan is exactly right, Ray. 

ABRAMS:  Yes.

KORB:  The good of the country has got to be put forward even if some people don‘t get the full...

ABRAMS:  Got to...

KORB:  ... punishment.  We do that all of the time. 

ABRAMS:  Got to wrap it up.  Lawrence Korb and Raymond Tanter, thanks very much. 

TANTER:  Thank you.

ABRAMS:  Coming up, it was my “Closing Argument” last night.  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 frozen money?  One of those POWs joins us next. 

Plus another NBC News exclusive in the Michael Jackson case.  We now know who else was named in the indictment.  We will tell you. 

And Kobe Bryant pleads not guilty to a charge of felony sexual assault.  But still no trial date is set.  Why? 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Secretary Rumsfeld talks about providing compensation to Iraqi prisoners.  What about U.S. soldiers tortured by Saddam?  Why is the administration still fighting them?

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

RUMSFELD:  I‘m seeking a way to provide appropriate compensation to those detainees who suffered such grievous and brutal abuse and cruelty at the hands of a few members of the United States Armed Forces.  It‘s the right thing to do. 

(END VIDEO CLIP)

ABRAMS:  Defense Secretary Donald Rumsfeld Friday telling the Senate Armed Services Committee he is working on a way to compensate Iraqi prisoners allegedly abused by members of the U.S. military.  What about the American soldiers abused by Iraqis during the first Gulf War?  For example, retired Air Force Lieutenant Colonel Jeffrey Fox was flying a mission over Iraq in 1991 when his plane was hit.  He was captured by Iraqi soldiers. 

He says they stripped him naked, spit at him, beat him, starved him, placed electrical shocks on him, fired guns inches from his head, breaking both his eardrums.  Last year a federal court ruled that Fox and 16 other former POWs were entitled to nearly a total of nearly $1 billion in damages to come from frozen Iraqi funds.  Now the administration says that money is needed to rebuild Iraq, and has even gone to court to block the POWs from receiving the compensation.  So if the Iraqis are going to get compensated, why not our tortured troops as well? 

Joining me now is retired Air Force Lieutenant Colonel Jeff Fox who has written a letter to Secretary Rumsfeld requesting that the former POWs receive the compensation, especially if the U.S. government is considering giving money to the Iraqis.  Thanks a lot Colonel for coming on the program. 

LT. COL. JEFF FOX (RET.), U.S. AIR FORCE:  Thank you.  Thanks for having me. 

ABRAMS:  All right.  So first of all, tell me your reaction when you heard Secretary Rumsfeld talking about providing compensation to the Iraqis. 

FOX:  Well, I will admit, it was a bit of a surprise, and yes, well, just that‘s probably the best thing I can say.  It just surprised me that it‘s OK to compensate Iraqis, but not to compensate American servicemen who were tortured. 

ABRAMS:  Now have they offered anything—I mean look, I think you recognize, do you not, that the 17 of you are not going to get the full $1 billion, correct? 

FOX:  I don‘t really know.  I think there is still the possibility that we might.  But also I realize that there is a possibility that we won‘t get anything.  So—but I do think that they are—we are hoping to negotiate. 

ABRAMS:  Right, because look, I have to tell you as a legal matter, I think that you know you guys have an uphill battle with regard to getting the entire amount of $1 billion.  But as I said in my editorial last night, it doesn‘t make any sense to me that we‘re going to be offering money to Iraqis who were tortured and denying you money for what happened to you and your fellow comrades.  Has there been any offer from the government?  Have they said look, we obviously can‘t give you $1 billion of Saddam Hussein‘s $1.7 billion frozen in funds, but we can give you X, Y amount? 

FOX:  As far as I know, there has been no attempt on the part of the government to negotiate at all.  I‘ve been told that—by the lawyers that they have approached the State Department and the Department of Justice and have gotten no reactions at all.  There is no attempt to negotiate on the part of the administration. 

ABRAMS:  See, that‘s the part about it that really gets me.  I have to tell you again because I just don‘t see the $1 billion happening.  But the idea that they‘re not even reaching out to you to try and negotiate is just, you know, it‘s a little bit difficult to believe.  Just so you know we can put into context when we‘re talking about the issue of compensation, tell me what happened to you when you were there.

FOX:  Well, again, as you said in the beginning—in 15 days I lost 23 pounds.  You had no access to latrines or anything.  You literally had to go to the bathroom in your pants.  I was beaten almost daily whenever you were taken anywhere.  My eardrum was broken.  I had a gun placed by my right ear and shot.  I was told that if I didn‘t answer a question I would be killed.  On two specific occasions I was stripped naked and checked to see if I was circumcised.  And also on the night of the 23rd of February, the Baath Party headquarters was bombed by allied forces and we were almost killed.  They just did not at all comply with the Geneva Convention. 

ABRAMS:  Wow.  And I assume though, even despite everything that happened to you, you were still very angry at seeing other U.S. soldiers doing what‘s depicted in these photographs? 

FOX:  You‘re absolutely correct.  It‘s inappropriate and just as unprofessional as you can get.  And certainly they need to be punished under the uniform code of military justice. 

ABRAMS:  All right, Colonel, look, thanks a lot for coming on the program.  Thank you for your service to this country, and I wish you the best of luck.  You know, I think there‘s got to be a way to work this out.  I hope that there is some negotiation effort, particularly if they‘re talking about compensation when it comes to this torture.  Good luck to you. 

FOX:  Thank you very much.  Appreciate it. 

ABRAMS:  Coming up, an NBC News exclusive—who else was named in the Michael Jackson indictment?  We have the names.  We will tell you what happens to them now. 

And if I may say so myself, as I predicted, the Scott Peterson trial is staying put.  The defense loses a second request to move the trial.  Opening statements could begin as early as this month. 

(COMMERCIAL BREAK)

ABRAMS:  Now to another exclusive in the Michael Jackson case.  Jackson pled not guilty two weeks ago to 10 felony counts.  Many surprised by new charges included in that indictment.  In particular, a conspiracy count, conspiracy to commit extortion, child abduction, and kidnapping.  But when the indictment was unsealed, the judge effectively whited out two lines with the names of other, we believe uncharged coconspirators, though we don‘t know for certain.  Now finally we know who they are. 

NBC‘s Mike Taibbi has the details.  So, Mike, who are they and they have not actually been indicted, is that right? 

MIKE TAIBBI, NBC NEWS CORRESPONDENT:  They have not been indicted.  They have not been charged.  We should emphasize that at the beginning and the end of this report.  Dan, you remember looking at the face page of this indictment a while back, the whiteout, which was used liberally throughout this document covered a small area of those two lines you talked about.  And everybody was trying to figure out how many names and which names would fit in that space. 

Well, two sources have told us, two sources who got it directly from Jackson defense team members who those five names are, at least the five that would have been in this space.  They are Vinnie Amen and Frank Tyson, and Marc Fred Schaffel, Ronald Conister (ph) and Dieter Wheezner (ph).  Now who are these people?  Generally, we can say they are all people who are involved in sort of damage control.  After the broadcast in this company—first in Europe and then in this country of the Martin Bashir document living with Michael Jackson.

Tyson and Amen are young men in their 20‘s.  They have worked for Jackson for years.  Tyson has known Michael Jackson since he was 13 years old.  They accompanied the accuser and his family for days and weeks after the documentary.  Mark David—Marc Fred Schaffel is known as a gay pornographer, admittedly directed and produced dozens of gay porn films.  He‘s known Jackson for four years and first got together with him after 9-11 when he produced a charity single and then a concert for Jackson.  And even after the revelations about his past, Schaffel‘s past, stayed on with Jackson. 

And after the Bashir documentary, got together with the family, got them to do some taped interviews allegedly saying that Michael Jackson was innocent and had done nothing wrong.  Conitser (ph) is a German businessman living in Vancouver, Canada and he is reportedly the one who told Michael Jackson on the 5th of February that year just the day before the documentary aired in this state, but the chaos had already started in Europe over the documentary, you better hire Mark Geragos, the criminal defense attorney who Michael Jackson just recently fired and replaced with Tom Mesereau.

And finally, Dieter Wheezner (ph) is a German businessman with a long association with Jackson.  Wheezner (ph) is still—is in Germany.  He‘s one of the five we‘ve been unable to reach.  All the others have said through their attorneys or directly to us, that they‘ve done nothing wrong, they deny any wrongdoing at all.  In fact, we just spoke briefly with Conitser (ph) from Vancouver and he said any accusations against me are simply groundless.  Thus emphasizing again that none of these five have been charged at this point. 

None have been charged.  They may never be charged.  They never be indicted, which raises all kinds of questions about why they‘ve even been named as unindicted or uncharged co-conspirators.  An interesting list all having to do, as I said, with a period of damage control after the Bashir documentary—Dan. 

ABRAMS:  Mike Taibbi, thanks for that exclusive report.  Appreciate it. 

TAIBBI:  (UNINTELLIGIBLE)

ABRAMS:  Coming up, Kobe Bryant pleads not guilty to rape.  A trial date was supposed to be set.  It wasn‘t.  What happened?  Our panel‘s coming up. 

And a blow to Scott Peterson‘s defense team.  The judge denies a defense request to move the trial again.

(COMMERCIAL BREAK)

(NEWS BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  How do you plead?  Not guilty or guilty? 

UNIDENTIFIED MALE:  Not guilty. 

(END VIDEO CLIP)

ABRAMS:  Kobe Bryant pleads not guilty to raping a 19-year-old hotel worker.  He faces anywhere from four years to life in prison.  Let‘s head right to the courthouse, MSNBC‘s Jennifer London.  So Jennifer, a quick proceeding, and no trial date set? 

JENNIFER LONDON, MSNBC CORRESPONDENT:  You‘re absolutely correct, Dan.  The court is saying that while Bryant was, as you know, arraigned today, there are simply too many outstanding motions to announce a trial date.  We do understand that both sides, the prosecution and defense, have been talking about a date.  They may have even settled on one.  But the court is saying they are not ready to announce it because there are too many outstanding motions. 

Now as you saw Bryant‘s arraignment, very, very short.  He said two words, not guilty.  Kobe Bryant seemed very relaxed in court today.  And unlike yesterday, we did not see the accuser here, however her family was in the courtroom for the arraignment.  They sat behind the prosecution and offered no response at all when Bryant said not guilty. 

Now among some of the outstanding motions that need to be decided.  Will the accuser‘s sexual history be admitted at trial?  This is what everyone has been talking about in terms of the rape shield hearing.  Will witness testimony about her medical history be admitted at trial?  This has to do with two purported suicide attempts and also her taking prescription medicine.  And also outstanding will a secretly tape recorded conversation between Bryant and detectives be allowed?  Will the jury be able to hear that?  The defense saying they want it tossed out. 

And also, will a T-shirt that Kobe Bryant was wearing the night of the alleged rape, that has a small spot of blood on it, will the jury be allowed to see that?  So, Dan, all of these motions very critical to what this trial will look like.  And again, we need to wait to have an answer or get further along in hearing these motions before the judge is ready to say when this case will go to trial. 

ABRAMS:  Jennifer London thanks a lot.  So now the clock is ticking under Colorado law.  Bryant‘s case theoretically must go to trial in six months.  Today the judge, as she said, refused to set a trial date, citing the number of open issues on the table.  I mean you know what do we make of that?  Is Bryant going to waive his right to have the trial so soon? 

Let me bring in our “A Team”—former prosecutor Joe Episcopo and Colorado criminal defense attorney Jeralyn Merritt.  All right, Jeralyn, you know what is with this no trial date?  We keep putting it off and putting it off.

JERALYN MERRITT, CRIMINAL DEFENSE ATTORNEY:  Well we haven‘t put it off because it hasn‘t been set yet.  But the reason it hasn‘t been set is because, as your reporter pointed out, the motions have haven‘t been decided.  And the motions—the decision of the motions is very important to how long the trial is going to take.  For example, a trial which her prior sexual history is allowed is going to take longer than the trial which it isn‘t.  Same for her medical history.  So they need to know when to schedule the trial, and the worse thing would be to set it, let everybody think it‘s going to start on a certain date and then have to change it. 

ABRAMS:  Joe, are you surprised by this?  I mean look, it‘s not the end of the world, and I‘m going to move on from this in a minute.  But I don‘t know.  It just seems to me generally you set a trial date after the preliminary hearing, and here we keep sort of putting it off, and putting it off. 

JOE EPISCOPO, FMR. PROSECUTOR:  Well, I think the defense likes that.  They‘re always hoping that the victim‘s going to back off and not want to proceed with this trial.  I think that‘s a pretty good strategy by the defense in this case.  And I think that‘s what they‘re hoping for.  They‘re actually harassing her is what they‘re doing. 

ABRAMS:  But they‘re not responsible for all these delays.  I mean you know it‘s a lot of the prosecution not turning over evidence and needing to test more evidence, and more pretrial hearings that the judge is scheduling, et cetera. 

EPISCOPO:  Well, they‘re taking advantage of it though, and that‘s what they‘re going to do is take advantage of it.  They‘re hoping that the state will give them more reasons to delay this case. 

ABRAMS:  The lawyer for the alleged victim said this.  “The victim is very disheartened by the lack of a trial date, but remains confident that Judge Ruckriegel will continue to move the case along.”

All right, look, it‘s going to happen soon.  I think it‘s not going to happen for a while.  But let me move on for a second.  They are fighting still about this issue of do you call the alleged victim, victim—I mean listen to some of the latest paperwork on this issue of what to call the alleged victim.

From the defense—in a sexual assault case where the defendant asserts consent references to the accuser as the victim necessarily convey the speaker‘s opinion that a crime in fact occurred thereby evincing a bias against the defendant and violating the presumption of innocence.

And this comes now from the alleged victim‘s attorney.  The use of these terms complaining witness and accuser have highly active and suggestive connotations which imply that the victim in this case is the motivating force behind the District Attorney‘s prosecution.  Nothing could be further from the truth as the victim did not even report this crime.

You know, Joe, are we—are they all making too big a deal about what to call her? 

EPISCOPO:  Yes.  They‘re presuming that the jury is stupid.  That they‘re going to come in there and not be able to distinguish between allegations and fact.  And let‘s face it, people get acquitted all the time where someone‘s referred to as the victim and the defendant is referred to as the defendant.  These are frivolous arguments.  Alleged victim is a good compromise. 

ABRAMS:  But you know, Jeralyn, I just—I agree with Joe.  I just think this just doesn‘t really matter. 

MERRITT:  Oh, it certainly does matter, and the reason it matters is because she isn‘t a victim if there hasn‘t been a crime.  And in cases such as murder or homicides, those kinds of cases, someone is killed.  There is a victim.  We just don‘t know who the perpetrator was.  In Kobe‘s case it is different because of the consent defense.  Kobe is saying no crime was committed.  So to hear the word victim over and over again...

ABRAMS:  But who—who‘s hearing it...

MERRITT:  ... violates the presumption of innocence. 

ABRAMS:  But who‘s hearing it?  It‘s in court papers.  It‘s in closed hearings.  It‘s in front of the judge. 

MERRITT:  And they‘re asking that it be kept out of the trial.  All they‘re asking is that during the course of the trial that the accuser be called the complaining witness or they call her by her name or they call—they refer to her as a person rather than a victim.  And I think that‘s appropriate.  There is actually a word in the law for the complaining witness in a rape case.  It is called prosecutrix (ph) and so they could also call her that. 

EPISCOPO:  Well, I think that alleged victim helps everybody.  It shows this allegation and that she may be a good victim.  It is a good compromise and I think that‘s what they should go with. 

ABRAMS:  All right, Jeralyn and Joe stick around. 

Coming up, Scott Peterson case is not moving for a second time.  The judge denies the defense request for a change of venue.  Now it is scheduled to begin this month.  A live report coming up next. 

And why the videotaped beheading of an American business owner in Iraq should not be viewed as some sort of thought out response to the abuse of the Abu Ghraib prison because that is exactly what the terrorists want.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ANNOUNCER:  Are you a fan of THE ABRAMS REPORT with Dan Abrams?  Let us know.  And if you‘ll be in the Los Angeles area this Saturday and Sunday, May 15 and 16, MSNBC wants to interview you on camera about your favorite moment from the show.  Tell us your story at abramsreport.msnbc.com now. 

ABRAMS:  Welcome back.  Scott Peterson loses a big motion to move the trial a second time.  It‘s now headed to trial in San Mateo County, this despite a defense effort to relocate to southern California.  Back in January when the trial was ordered out of Modesto, Peterson‘s attorney, Mark Geragos, made it clear where he wanted his client to be tried. 

(BEGIN VIDEO CLIP)

MARK GERAGOS, SCOTT PETERSON‘S ATTORNEY:  Well my first three choices were L.A., L.A., and L.A.

(END VIDEO CLIP)

ABRAMS:  This and other developments in court today.  I‘m joined now by Edie Lambert from NBC affiliate KCRA.  Edie, so does this mean the trial is on schedule for opening statements on May 24? 

EDIE LAMBERT, KCRA CORRESPONDENT:  Dan, yes, the trial is still on track and that is largely because the judge has been proceeding as if the case will be tried here.  Bottom line, Judge Delucchi did not buy the argument that Scott Peterson can‘t get a fair trial in San Mateo County.  That said, defense attorney Mark Geragos put up a good fight.  He argued that there was so much pretrial publicity that half of the jury pool here already thinks that Scott Peterson is guilty.  And remember, this is close to the area where the bodies washed ashore. 

But the prosecution argued that wherever this case goes, there will be intense media coverage.  And there is no proof the people are less bias in Los Angeles.  This morning Judge Delucchi said he agreed with that.  He called L.A. the media capital of the world and ruled against the defense.  It was the decision Laci Peterson‘s family wanted to see.  It keeps the case much closer to their hometown of Modesto. 

(BEGIN VIDEO CLIP)

SHARON ROCHA, LACI PETERSON‘S MOTHER:  I think today was a very good day. 

RON GRANTSKI, LACI PETERSON‘S STEPFATHER:  Yes, it was a very good day and now hopefully we can get this thing started.  So that‘s our main concern that they get the juries selected and then let‘s get it started and we‘ll see what happens from there.

(END VIDEO CLIP)

LAMBERT:  Geragos went into today‘s hearing with a plan B.  If he couldn‘t move the trial, he wanted 10 extra peremptory challenges.  Those are where he can dismiss potential jurors without giving a reason.  Just as the judge was about to start discussing that, Geragos abruptly withdrew that request, so now that is off the table.  And at this point he‘s not talking about whether he will appeal today‘s decision to an appellate court.  So, at this point, jury selection continues and they hope to seat a jury a week from Thursday. 

I‘m Edie Lambert reporting live in Redwood City.  Dan, back to you. 

ABRAMS:  Yes you are.  Edie Lambert, thank you very much. 

All right, let‘s get our legal team in—former San Mateo County prosecutor Dean Johnson, former prosecutor Joe Episcopo and criminal defense attorney Jeralyn Merritt.  All right, Jeralyn, this was no surprise, right, the defense lost this one?  

MERRITT:  It‘s not a surprise they lost it, but I‘m kind of sorry to see that because San Mateo and Modesto are in the same media market.  And really since the time has gone on since Laci Peterson‘s murder, I think the country has not been as focused on this case as have the people in Modesto and in that area of California where it‘s still a very big deal. 

ABRAMS:  Yes.

MERRITT:  So I think moving it to Los Angeles would have meant moving it to a place not only where the citizenry and the potential jurors are more diverse, but that there is, in fact, less of an interest in the case. 

ABRAMS:  Yes.  Dean, look, as always Jeralyn makes an eloquent argument, but one that really never had any chance of winning, right?

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:    Well, she makes an eloquent argument, but it‘s factually incorrect.  First of all, San Mateo and Modesto are not even close to the same media markets.  They‘re entirely separate.  Second, as pointed out in the papers, if the problem is pretrial publicity, the statistics introduced by Geragos himself show that media penetration in Los Angeles is slightly higher for recognition of the Peterson case than it is in San Mateo County. 

But that wasn‘t the real thrust of the argument.  The thrust of the argument here was to attack the biggest problem that Geragos has, which is that we have 66 out of the necessary 70 jurors who have all said under oath that they are prepared to decide this case fairly.  And there is no evidence to suggest that anything is to the contrary. 

ABRAMS:  Well, Joe Episcopo...

(CROSSTALK)

ABRAMS:  ... I think what Mark Geragos would say is well there have been these stealth jurors out there.  Jurors who have been lying to go get on the jury, and we‘re concerned they‘ve infiltrated our magic jury pool. 

EPISCOPO:  Well, you‘re going to find a lot more stealth jurors in Los Angeles than anywhere else in the world. 

ABRAMS:  They‘re better actors there (UNINTELLIGIBLE).

EPISCOPO:  Not only—but you know, Geragos himself admitted that half are prejudiced against his client.  That leaves 33 other jurors who apparently are not.  And they only need 12, and then maybe four alternates.  So he has half of the 33 that could give a fair and impartial verdict. 

JOHNSON:  Well...

MERRITT:  But he should have 100.  They‘re supposed to start on an even slate. 

EPISCOPO:  You only need 12.  That‘s the rule, 12. 

JOHNSON:  Well, for one thing...

MERRITT:  But they should all be impartial. 

JOHNSON:  The existence...

EPISCOPO:  Well they‘re not.

JOHNSON:  ... of stealth jurors is sheer speculation.  We really—stealth jurors are like “big foot”.  There have been many reported sightings, but no hard evidence yet.  And to make the argument that to take it to Los Angeles would eliminate the problem of stealth jurors is simply disingenuous. 

(CROSSTALK)

JOHNSON:  You would have to argue that all of these 66 people or a substantial proportion of them are lying to get on the jury and so San Mateo County jurors are all liars.  And—but if you go to L.A., all the jurors are going to tell the truth, and that...

ABRAMS:  Yes.

JOHNSON:  ... argument just doesn‘t wash. 

ABRAMS:  Jeralyn...

(CROSSTALK)

UNIDENTIFIED MALE:  I‘m sorry.

ABRAMS:  Jeralyn, let me ask you about this motion that Geragos withdrew.  He had initially said look, either move the case or we want more opportunities to strike prospective jurors, just so everyone understands, each side gets 20 opportunities to just say I don‘t want that person on the jury.  They don‘t have to give a reason as long as it‘s not based on the person‘s race.  So why don‘t you think that Mark Geragos continued his effort to ask for 10 more opportunities to get rid of prospective jurors?

MERRITT:  It may be that he‘s going to appeal this ruling, Dan.  I‘m sure Dean will tell me if I‘m wrong, because on California law I don‘t know if he can appeal it pretrial.  But if he can, he might want to appeal it and see what the higher court says.

ABRAMS:  All right.

MERRITT:  And then he might be rid of this jury pool, because what jury is going to stick around for six months while the case goes up on appeal. 

ABRAMS:  Professor Dean?  

JOHNSON:  Well, Geragos actually can appeal.  He gets two chances.  He could appeal it right now on what‘s called a writ of mandate and get a fast track decision in about 10 days or he could save it for the appeal if there is an ultimate conviction.  We‘re not clear that he is going to take the writ of mandate; I think he probably will not.  I think the reason he withdrew his request for 10 additional peremptory challenges, quite frankly, is that he was concerned that as California law is phrased, if he gets 10 additional challenges, the prosecution also gets 10 additional challenges.  And I think—looking at this jury pool, I think Geragos in his heart of hearts likes what he sees.  And he knows very closely what the final 18, 12 jurors and six alternates are going to be.  And I think he believes that he‘s got about as good as he‘s going to get...

ABRAMS:  I‘m out of time, but I want to ask each of you, the opening statements are scheduled for May 24.  Yes or no answers, Dean do you expect that opening statements will begin on May 24?

JOHNSON:  I believe they‘ll begin on May 24.  And I believe they‘re going to be barnburners.  Listen very closely to them. 

ABRAMS:  All right.  And Joe?  

EPISCOPO:  Yes. 

ABRAMS:  Jeralyn?  

MERRITT:  I think they‘ll start. 

ABRAMS:  Whoa.  All right.  I am predicting that they will not start on May 24.  That there will be some sort of delay that will postpone them at least a week.  But I‘m wrong a lot of times.

Dean, Joe, Jeralyn thanks a lot for coming on.

JOHNSON:  Thanks Dan.

MERRITT:  Sure. 

ABRAMS:  Coming up, an American civilian beheaded in Iraq by terrorists.  They claim it was a response to the abusive Iraqi prisoners.  I don‘t believe them, and I think it gives terrorists too much credit.  It is my “Closing Argument”...

(COMMERCIAL BREAK)

ABRAMS:  Coming up, an American beheaded in Iraq.  The terrorists say they were avenging the abuse of Iraqi prisoners.  I don‘t buy it and neither should the media.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why the videotaped beheading of an American business owner in Iraq should not be viewed as some sort of considered response to the abuse at the Abu Ghraib prison.  Because that‘s exactly what the terrorists want.

A group of five masked terrorists read a statement talking about the shame and the Abu Ghraib pictures and then in the name of their god slowly sliced off Nick Berg‘s head with a knife, then held the head up to the camera.  A radical Islamic Web site posted the video of Berg‘s gruesome death.  It included threats of more attacks to come. 

They claim that bin Laden ally Abu Musab al-Zarqawi was responsible.  But to believe that these terrorists would not have killed but for Abu Ghraib is to ignore reality.  Terrorists and al Qaeda in particularly, are constantly searching for excuses to kill.  Al Qaeda will not give up until all Western countries have Islamic fundamentalist governments in place. 

First their excuse was the U.S. presence in Saudi Arabia.  Then it was the Palestinians.  Then it was Iraq and now it‘s Abu Ghraib.  They will attach themselves to any perceived indignity to Arabs in an effort to recruit more terrorists and to rationalize their murderous ways.  Unfortunately, some members of the media allow that rationale to seep into their coverage. 

Today “Reuter‘s News Service” released a story about the beheading laying out the facts of what happened.  That Zarqawi was named.  That Berg‘s body has been found.  That he was a private citizen.  That the ritual resembled the murder of “Wall Street Journal” reporter Daniel Pearl.  And then the next paragraph says the photos—quote—“have provoked international anger and become a serious setback to U.S. efforts to stabilize Iraq.”

What does that have to do with the story about the beheading?   Are they implying that the terrorists really did act in response to Abu Ghraib?   That they‘re just part of the angry international community?   I don‘t believe it.  Al Qaeda does not have a goal or a mission short of international mayhem.  And while it‘s true the photos from Abu Ghraib have instilled anger in the Arab world and may provide a recruiting tool for terror, they can also be a ruse, an excuse to kill.  I‘m not suggesting that “Reuters” or others are doing it intentionally, but we all need to make sure we don‘t allow the terrorists to win even a P.R. war. 

All right, I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  Last night we talked to the attorney for Megan Ambuhl, one of the soldiers accused of abusing Iraqi prisoners at Abu Ghraib.  Harvey Volzer, her attorney, said she was following orders. 

From New York, New York Gabriel Wright, “If it‘s proven that this soldiers were taking orders from higher authorities and I think it will, for those reasons I will not judge them too harshly.” 

But I pointed out that following an unlawful order is not a valid defense.  Tom Ricciardi from San Diego asks a good question.  “What constitutes a lawful and unlawful order especially in these circumstances?  Listening to you one would think that those 20-year-olds should define it.”

Well, Tom, I think we can expect even 20-year-olds to know that stacking naked men in pyramids and having them simulate sex acts with one another isn‘t couture. 

In my “Closing Argument” last night I said that if Secretary Rumsfeld intends to compensate abused Iraqi prisoners, the administration should also compensate the 17 POWs who won a huge verdict against Saddam Hussein.  So far the administration has said Saddam‘s frozen funds will only go to rebuilding Iraq.  Some of you disagreed.

From Iowa City, Iowa, Brandon writes, “I do not agree that the soldiers who were abused by Saddam and his men in the first Gulf War should be allowed to sue him.  The money they‘re trying to get is money that Saddam stole from the Iraqi people and they have first claim and the U.S.  does not usually reparations from our military opponents.”

You know, Brandon, this is not about reparations.  It‘s about a valid lawsuit they won against Saddam.  I just don‘t see how we can pay out for torture of Iraqis, and then completely ignore the pleas of Americans tortured by Saddam. 

I also said that compensation to the abused Iraqi prisoners represents a symbol of our sorrow and shame to the families of the victims and the Arab world as a whole.   Jeremy Rosenbaum from Columbia, Missouri.  “Monetary compensation may represent our shame and sorrow to you, Mr.  Abrams, however, I think to the Iraqis who were abused and the rest of the Middle East, it is much more likely to represent what they perceive as America‘s arrogant capitalism.”

So Jeremy, you think they would prefer we not pay them at all?   You may be right that it will not cure the hard feelings, but I‘m afraid that you may be just trying to justify not paying anything at all. 

Your e-mails, abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  That‘s one word.  We read them every day at the end of the show. 

Coming up next, “HARDBALL” with Chris Matthews.  Thanks for watching. 

I will see you back here tomorrow. 

END   

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