updated 5/26/2004 10:12:38 AM ET 2004-05-26T14:12:38

Guests:  Jeralyn Merritt, Lisa Bloom, Jan Ronis, Steven Wax, Christopher Schatz

DAN ABRAMS, HOST:  Coming up, with only days to go until the opening statements in the Scott Peterson trial, a bombshell from the defense. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  They want to know why a possible witness, a law enforcement official who said he saw Laci thrown into a brown van by at least two men was only questioned by prosecutors last week about what he saw. 

Plus, what happened behind closed doors at the Michael Jackson grand jury?  We have a report on some of the secret details.

And the authorities had called it a major investigative breakthrough in the war on terror, an American Muslim lawyer‘s fingerprints supposedly on evidence on the Madrid bombings.  Now authorities say the fingerprints weren‘t his.  What happened? 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, with opening statements slated to begin a week from today in the Scott Peterson case, the defense blasting the prosecution for not following up on what defense attorneys say could have been, might have been a key witness.  In a report handed over to the defense by the prosecution last week, an eyewitness said he saw Laci Peterson being pulled into a van by at least two men and then although this man, a sworn peace officer had been known to the prosecution since, really, almost the time of Laci‘s disappearance, he was only interviewed within the last week.  Remember, the defense has maintained a tan or brown van may have been used in Laci‘s abduction and murder.  But Modesto prosecutors dismiss that claim. 

(BEGIN VIDEO CLIP)

JOHN GOOLD, STANISLAUS COUNTY CHIEF DEPUTY D.A.:  We have issued a press release stating that we are comfortable that the brown van has been excluded from having anything involved in this case. 

(END VIDEO CLIP)

ABRAMS:  Now I should tell you, I remember hearing about this guy many, many months ago and I remember that both sides discounted his story.  The defense is also asking the judge to allow testimony from a woman who says she saw three men standing next to a brown van the day Laci went missing parked on the curb by the Peterson‘s Covena Avenue home.  The woman, Diane Jackson, spoke to investigators on at least three occasions, first time just three days after Laci‘s disappearance. 

Now here‘s why she may not be able to testify.  Prosecutors asked her to be hypnotized.  The court then ruled her testimony is now unreliable because of the way the hypnosis was done.  The defense wants her called as a witness and her pre-hypnosis statements admitted in trial.  I‘ve got to tell you, on this one I agree with the prosecutors on one, the defense on one.

Let‘s bring in our “A Team”, civil rights attorney and Court TV anchor Lisa Bloom, Colorado defense attorney Jeralyn Merritt and criminal defense attorney Jan Ronis.

All right, let‘s start first with this first issue of this new witness who has come forward.  You know, Jeralyn, the defense is making it seems as if this witness is coming out of nowhere, but the bottom line is, you know, they have known about this particular witness for a long time and so they could have gone and talked to this person and interviewed him many, many months ago. 

JERALYN MERRITT, CRIMINAL DEFENSE ATTORNEY:  Sure, but the point is that the prosecution didn‘t turn over the interview with the witness until last week...

ABRAMS:  They didn‘t do the interview until last week... 

MERRITT:  Exactly, why?  How do could they...

ABRAMS:  Because he is irrelevant. 

MERRITT:  No, but Mark Geragos‘ argument is they didn‘t interview the witness because they knew it was going to be good for Scott Peterson and they didn‘t want to go looking for any evidence that would point to someone other than Scott Peterson...

ABRAMS:  So, why would they do it now? 

MERRITT:  ... as the murderer. 

ABRAMS:  Why would they do it then a week before, if the whole goal was to sort of dismiss this guy for the prosecutors, as opposed to just excluding all of the whackos, why not just forget about him and not even interview him at all? 

MERRITT:  Maybe he has to be interviewed.  Maybe they had no choice, but what are they doing sitting on someone who says they saw Laci Peterson with two other guys get put into a van?  That‘s incredibly powerful exculpatory evidence for Scott Peterson. 

ABRAMS:  Lisa.

LISA BLOOM, COURT TV:  Well, I agree that it could potentially BE exculpatory, but look, this is why we have trials.  The defense knows about this guy.  As you say Dan, they‘ve known about him for some time.  Obviously, they just did the interview on the prosecution end because the trial is about to begin and they are basically sewing up any lose ends in the case.  I think this—one is probably an error on the prosecution side.  They should have done it earlier, but they‘re not under any particular obligation to interview anyone at any particular time.  Cops make judgment calls all the time.  They made this judgment call to interview this guy late.  Let the defense go interview him if they want to. 

ABRAMS:  And Jan Ronis, is this the sort of thing that come into trial?  Will they be able to say why didn‘t they—I mean let‘s say the defense doesn‘t want to call him because they don‘t trust his testimony.  Is there any way to still use the fact that prosecutors didn‘t go and talk to him until a week before the trial? 

JAN RONIS, CRIMINAL DEFENSE ATTORNEY:  Well, of course.  Lisa says cops make judgment calls all the time, and how could judgment be considered good if they didn‘t follow up and interview this guy.  I mean this is really a pivotal point in the whole case.  There has always been this theory floating around that she was abducted by other individuals, so there‘s just no justification for the fact that they didn‘t go interview this person and they...

BLOOM:  But we don‘t know.  You know, all we have is a paragraph on a piece of paper from Mark Geragos (UNINTELLIGIBLE) motion papers.  We don‘t know.  You know this police got thousands of tips in the case.  They have got to make a decision as to whether—to interview...

(CROSSTALK)

BLOOM:  ... the guy, you know for example, Scott Peterson who coincidently is fishing in the place where the bodies wash up or somebody who gives them a tip and they chose to follow...

(CROSSTALK)

ABRAMS:  Jeralyn...

(CROSSTALK)

ABRAMS:  ... if this guy were such a great witness for the defense, I would think the defense would be thrilled that they hadn‘t talked to this guy up to now.  They would be saying, you know what, our ace in the hole, they didn‘t even know about our ace in the hole until this week. 

(CROSSTALK)

MERRITT:  But you make it sound like a game and it‘s not a game.  The prosecution‘s job and the police officer‘s job is to investigate all leads wherever it takes them.  They are not supposed to say oh we have a report from someone...

ABRAMS:  ... whether they are supposed to do it or not...

MERRITT:  ... seen Laci Peterson...

ABRAMS:  ... why isn‘t this an advantage for the defense?

(CROSSTALK)

MERRITT:  ... and then say we‘re not going to follow it.

ABRAMS:  But wait.  Why isn‘t this—if this guy is a great witness for the defense, why isn‘t it a good thing for them that the prosecutors didn‘t talk to him until last week? 

RONIS:  Well let me answer that question...

(CROSSTALK)

RONIS:  If they were aware of this guy and they—somehow this is a person different than the person Mark Geragos was originally aware of and they didn‘t interview this guy until last week and then they didn‘t give him the report and Mark was not aware of his identity, then it‘s a huge issue.  But it is somewhat unclear by the moving papers...

ABRAMS:  Yes.

RONIS:  ... as to what knew...

ABRAMS:  All right.

RONIS:  ... what somebody knew and when they knew it. 

ABRAMS:  Let me switch topics here because on this one I don‘t get what the prosecutors—on that one—you know on this one—I‘m going to throw this one to you, Lisa.  All right.  So, they are out there hypnotizing these witnesses. 

BLOOM:  Yes.

ABRAMS:  The defense has this witness that they think could help their case and so the prosecutors hypnotize her in a way that is apparently not up to snuff and as a result, now this witness can‘t come forward and testify for the defense.

BLOOM:  Right.

ABRAMS:  What kind of nonsense is that? 

BLOOM:  Well here‘s how it works under a California law.  Somebody who‘s hypnotized, what they remember after the hypnosis is not admissible.  That‘s not considered reliable.  Memories pre-hypnosis are admissible.  So I don‘t know what happened with this woman‘s memory after hypnosis but we do know what she recalled before.  And she said that she saw three dark skinned, but not African American men near a van in front of Laci Peterson‘s home and that they looked at her as she drove by on December 24, 2002.  That‘s it.  She doesn‘t say she saw them abducting Laci Peterson...

ABRAMS:  But Jan...

(CROSSTALK)

ABRAMS:  ... wait.  Jan, isn‘t the law in California that if you are hypnotized in this way that‘s not reliable then you can‘t be called as a witness in the case? 

RONIS:  Well, if you do it unreliably, you could certainly taint the process such that the hypnotist couldn‘t come in and testify credibly.  But that‘s not what they did in this case.  They used an unlicensed psychologist.  In the state of California, the evidence code section requires that the psychologist be licensed to practice in the state of California.  So they‘ve gone through this whole process with an unqualified psychologist...

(CROSSTALK)

UNIDENTIFIED FEMALE:  Right.

RONIS:  ... they probably tainted the process such that nobody would ever let their testimony in.  So that really was...

ABRAMS:  What are they doing, Lisa?  What is with all this hypnosis?

(CROSSTALK)

UNIDENTIFIED FEMALE:  Dan...

BLOOM:  According to the prosecutors, they say it was simply a mistake and they didn‘t know that the hypnotist was unlicensed and they say they just simply made a mistake...

(CROSSTALK)

ABRAMS:  What are they doing hypnotizing witnesses at all?

BLOOM:  I‘ll tell you exactly what they‘re doing...

MERRITT:  That‘s right...

BLOOM:  They are trying to get more information—wait, let me answer this question...

ABRAMS:  (UNINTELLIGIBLE)

BLOOM:  ... because it‘s important.  You know Geragos says hey, you didn‘t follow up with this one guy who sighted the van and Laci Peterson and some abductors.  Well, in this case they were trying to follow up with this woman who said that she saw something but...

MERRITT:  Oh come on...

(CROSSTALK)

ABRAMS:  All right, let me let...

(CROSSTALK)

ABRAMS:  Hang on...

(CROSSTALK)

ABRAMS:  Jeralyn, following up is one thing, hypnotizing is another. 

MERRITT:  Absolutely it‘s another and they used someone who, as Jan said, was not licensed and—but there‘s an easy remedy here and the remedy here is she was interviewed by police.  There is written reports of her statements before she was hypnotized and I think the judge should allow those to come in...

ABRAMS:  I think so too...

(CROSSTALK)

MERRITT:  ... now as a punishment for the prosecution... 

ABRAMS:  I think so too. 

MERRITT:  ... for doing this.

ABRAMS:  I think so too.

(CROSSTALK)

BLOOM:  But this prosecution team is dammed if they do, they‘re dammed if they don‘t according to the defense.  They either do too much or they do too little. 

MERRITT:  No, come on Lisa...

ABRAMS:  Well, how about let‘s just stay out of the hypnosis business...

MERRITT:  ... hypnotizing and the interviewing...

ABRAMS:  All right.

BLOOM:  They are trying to get more information out of a witness who has got a little bit of a memory.  They‘re trying to get a little bit more.

ABRAMS:  I don‘t know.

BLOOM:  That‘s what they were doing in good faith. 

ABRAMS:  Yes, good—all right, maybe.  But let me just tell you, when you got a case like this, it‘s—I would just think that generally it‘s not a good policy to start hypnotizing—I mean Jan, have you been in a lot of cases in California where the prosecutors have—not—the authorities have hypnotized witnesses? 

RONIS:  I have never been in one, but I will say this.  I have never gone to an unlicensed physician or an unlicensed airline pilot, so I‘d certainly...

BLOOM:  Yes, but I‘ll tell you something Dan...

RONIS:  ... check their credentials...

ABRAMS:  Yes, but I don‘t know.  I mean...

BLOOM:  This wasn‘t—Dan, if I could—may for a moment—this was January of 2003 when Laci was still missing and there was a big push on to find her to get any leads to find out what happened and if through hypnosis something had been revealed that could have led to the finding of Laci Peterson we would all be applauding...

RONIS:  I‘m not—yes, I‘m not disagreeing with the procedure they followed, but would you think they would have, you know, done it right and got a licensed...

(CROSSTALK)

UNIDENTIFIED FEMALE:  ... they would object...

ABRAMS:  ... here‘s what Diane...

BLOOM:  None of us have ever made mistakes in our work.

ABRAMS:  Here‘s what this witness says, Diane Jackson.  Mrs. Jackson stated that at first she thought they were landscaping.  However, she did not observe any tools.  Mrs. Jackson said that as she passed, they all turned and looked at her as she passed.  Mrs. Jackson said that she found this unusual and she said that she had the feeling they were up to no good.”

All right, bottom line, everyone, let me just go around the horn on this real quick.  Lisa, the case going to start on Tuesday with opening statements? 

BLOOM:  I would not be surprised if there is more and more delays in this case.  That‘s what (UNINTELLIGIBLE) this case from the beginning.

ABRAMS:  Jeralyn.

MERRITT:  It depends whether or not the prosecution is going to still find more evidence to turn over at this late date. 

ABRAMS:  Yes, yes, yes.  Jan.

UNIDENTIFIED FEMALE:  Oh Dan. 

RONIS:  It‘s a combination of both.  I don‘t think it will start on Monday, but I suspect it‘s going to start pretty soon. 

ABRAMS:  I predict and I did predict it would be delayed from May 24. 

I predict it will start on Tuesday...

(CROSSTALK)

ABRAMS:  ... June 1.  We shall see. 

All right, everyone—all of you stick around.  Coming up, it seems like a frightening arrest in connection with the Madrid terrorist bombings.  An American‘s fingerprints reportedly found on a plastic bag containing detonators.  The lawyer taken into custody.  Turns out the authorities had it all wrong and now he‘s been released.  We‘ll hear from him and his attorneys.

Plus, new details about what prosecutors presented to the Michael Jackson grand jury.

And later, Kobe Bryant‘s defense team said police detectives closed their eyes to physical evidence in the hotel room, which may have confirmed Bryant‘s side of the story. 

Your e-mails abramsreport@msnbc.com.  I‘ll respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, an American Muslim lawyer falsely accused of having ties to the Madrid bombings.  His attorneys now furious and they are on the program. 

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  When the story broke it was described in “Newsweek” magazine as a major investigative breakthrough.  The discovery in Spain of a man‘s fingerprint on a bag that held detonators linked to the March 11 terrorist attacks that killed 191 people in Spain.  Who did the print belong to?  The FBI  said it had traced it to a lawyer from Portland, Oregon named Brandon Mayfield, a Muslim convert said to have a tangential link to the case of the “Portland Seven, a suspected terror cell whose survivors pled guilty to conspiracy into the fight for the Taliban. 

Mayfield was arrested and held for two weeks as a material witness. 

His home and office searched.  Client files with Muslim names confiscated. 

Today, he is a free man and the recipient of a rare apology from the FBI.

(BEGIN VIDEO CLIP)

ROBERT JORDAN, FBI SPECIAL AGENT:  The FBI regrets the hardships that this matter has placed upon Mr. Mayfield and his family. 

(END VIDEO CLIP)

ABRAMS:  That may not be enough for the Mayfields.

(BEGIN VIDEO CLIP)

BRANDON MAYFIELD, CLEARED OF TERROR TIES:  This has caused a lot of trauma to myself and my family.  I am what, two or three days out of the detention center and I am just now starting to not shake.  My blood pressure‘s you know risen.  My pulse has risen.  My heart hurts. 

(END VIDEO CLIP)

ABRAMS:  The FBI had claimed in an affidavit that it was 100 percent certain its fingerprint identification was correct, even though Spanish police had insisted it wasn‘t.  So how was he cleared of the connections to terror?  For that I‘m joined by two members of the legal team that fought to clear him, federal public defender Steven Wax and assistant federal public defender Christopher Schatz.  Thank you, gentleman, very much for coming on the program. 

UNIDENTIFIED MALE:  Thanks for having us. 

ABRAMS:  All right.  Mr. Wax, first, the bottom line reason that he ultimately was released is what?  What happened to eventually get him released? 

STEVEN WAX, MAYFIELD‘S ATTORNEY:  A number of things happened culminated with the FBI saying that it no longer believed that the latent print that it had previously said was a 100 percent match with one of his prints was even useable at all.  That came about after two weeks of very intense litigation, negotiation, investigation on our part, pushing on the government to release information and continual statements by Mr. Mayfield that he had no involvement in or knowledge of the bombing. 

ABRAMS:  This is unbelievable.  Mr. Schatz, do you remember, did you get to talk to him early on in the process as to what he said to you in the first day or so after he was taken into custody? 

CHRISTOPHER SCHATZ, MAYFIELD‘S ATTORNEY:  Yes.  I first met Brandon Mayfield the evening of May 6.  A call had come into the office.  We were advised that he had been detained as a material witness pursuant to a material witness warrant.  He been in court briefly the afternoon of May 6, but had been transferred to the what‘s known as the Monoma (ph) County Detention Center or Justice Center, basically a jail.  I received that information late on the afternoon of the 6th, early evening. 

I then went over to the jail facility, actually met Brandon Mayfield in the bottom of the Justice Center, which is the receiving area.  He had just been brought in.  He was waiting at that point in time to be processed to—and taken upstairs to basically a cell.  He and I had a conversation.  It was in one of the attorney visiting rooms in that area of the jail.  It was over the telephone. 

At that point in time, he was somewhat confused.  It had been a very shocking experience for him to be arrested, detained, taken to court and suddenly finding himself in a jail facility.  But notwithstanding the shock of that event, that series of events, he was clear and insistent on one point and that was that he was absolutely innocent.  He had no connection to the Madrid bombing or any other form of terrorist activity. 

ABRAMS:  Mr. Wax, you believe that the local FBI and prosecutors were largely responsible for getting this back on track, correct? 

WAX:  We distinguish between the professionalism of the local people with whom we dealt and the activities that took place in Washington.  As we see it, there are serious questions that need to be asked about the leaks that came out from Washington at the beginning that were incredibly damaging to Mr. Mayfield and the way in which the FBI in Washington presented information to our local people here in Oregon.  Leading to what we think are very serious questions about the accuracy of the affidavit that was submitted to the court that led the court to issue the warrant for Mr. Mayfield‘s arrest in the first place.  And we think that an investigation into that is called for. 

ABRAMS:  Let me play another piece of sound from Brandon Mayfield. 

(BEGIN VIDEO CLIP)

MAYFIELD:  I have been through what I would described earlier as a harrowing ordeal and this whole process has been a harrowing ordeal.  It shouldn‘t happen to anybody, at least in the manner that it happened to me. 

(END VIDEO CLIP)

ABRAMS:  Mr. Schatz, do you have any sense of whether Mr. Mayfield now intends to sue as a result of this? 

SCHATZ:  One of the things that Brandon Mayfield said yesterday in his public statement is that he is not a vindictive individual.  He is an intelligent and I believe a skilled attorney.  He is assessing his situation.  He has taken advantage of the counsel provided to him by his—the federal public defenders office to exercise his Sixth Amendment privilege.  He is consulting now with civil counsel. 

What steps Mr. Mayfield will ultimately take to try to obtain some recompense, if you will, for the harm that he has sustained is basically up to him.  One thing I know that is on his mind, however, and that is that he wants to see an investigation into the procedure...

ABRAMS:  Yes.

SCHATZ:  ... that resulted in this absurd identification...

(CROSSTALK)

SCHATZ:  ... of him as the individual. 

ABRAMS:  If I were him, I would want the same thing.  Mr. Wax, final question.  You must represent a lot of guilty people.  I mean being a public defender, you are basically assigned at times cases and as a result you are going to end up representing people who are factually guilty.  How do you distinguish when you get a guy like Brandon Mayfield who is saying to you look, I‘m telling you I had nothing to do with this.  And yet you must hear that from clients all the time. 

Do you have a way as a lawyer, a human being of distinguishing between those who are saying, I‘m innocent, I‘m innocent, I‘m innocent and you say to yourself all right, look, I‘m going to fight the system.  I‘m going to fight the good fight, but I‘m not going necessarily going to put him on the stand because I don‘t necessarily believe him and a guy like Mayfield who it turns out was telling you the whole truth. 

WAX:  Part of the beauty of our system and the importance of our system is that my job as a defense attorney is to fight as hard as possible for anyone who is brought in.  And we need to push back against the government whether or not the person is saying at the outset I‘m innocent or not.  We just don‘t know in any case whether it is going to be the one in which the government has made a mistake, in which the government has overreached.  And if all of us are going to be able to enjoy the protections that the Constitution gives us, we have to put up the fight for every client who comes in. 

ABRAMS:  On this one...

WAX:  As the cases unfold, of course...

ABRAMS:  Yes.

WAX:  ... the facts will sometimes lead us in one direction...

(CROSSTALK)

WAX:  ... or another. 

ABRAMS:  On this one it seems pretty clear you guys were on the right side.  Steven Wax and Christopher Schatz, thank you very much for coming on the program.  Appreciate it.

UNIDENTIFIED MALE:  Thank you for having us.

ABRAMS:  Coming up, San Francisco‘s gay marriage licenses challenged before the California Supreme Court today.  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  Did the mayor of San Francisco abuse his power when he decided to issue marriage licenses to gay couples earlier this year?  Well, the California Supreme Court heard argument today on whether those marriage ceremonies already performed were legal. 

NBC‘s Conan Nolan has more.

(BEGIN VIDEOTAPE)

CONAN NOLAN, NBC NEWS CORRESPONDENT (voice-over):  They came from all over the state and the nation and before it was told to stop, the city of San Francisco had performed over 4,000 same-sex marriages.  Symbolically significant but legally questionable. 

CHIEF JUSTICE RONALD GEORGE, CA SUPREME COURT:  The question is the question of the authority of local officials. 

UNIDENTIFIED MALE:  And that...

NOLAN:  State officials argued before the California Supreme Court that the same-sex marriage licenses are invalid, that San Francisco mayor Gavin Newsom had overstepped his authority by ignoring a state law approved by voters, which define marriage as that between a man and a woman. 

TIMOTHY MUSCAT, CA DEPUTY ATTORNEY GENERAL:  Here we had city officials in defiance of clear state laws deciding for themselves based on their own subjective concerns of the Constitution. 

UNIDENTIFIED FEMALE:  (UNINTELLIGIBLE)

NOLAN:  But the city of San Francisco argued that the state law banning same-sex marriages is unconstitutional, a violation of the equal protection clause. 

THERESE STEWART, SAN FRANCISCO ATTY. GEN. OFFICE:  Sometimes the executive in carrying out their function must act.  And in order to act they have to act according to constitutional principal.  That‘s not legislating.  It‘s not acting judicially.

NOLAN:  It appeared to be a tough sell.  In questioning, the justices seemed uncomfortable with city officials interpreting the Constitution and rewriting state law. 

UNIDENTIFIED MALE:  ... Francisco violated the law.

NOLAN:  But outside, there was equal frustration from those demanding marital rights. 

(CROSSTALK)

UNIDENTIFIED MALE:  San Francisco is not obeying the law and doesn‘t even believe in free speech.

(CROSSTALK)

NOLAN:  Conan Nolan, NBC News, San Francisco.

(END VIDEOTAPE)

ABRAMS:  Coming up later in my “Closing Argument”, why I think San Francisco mayor Gavin Newsom will lose this round of legal battles. 

Also ahead, a live report from the Terry Nichols‘ Oklahoma City bombing trial.  This time he may get the death penalty. 

And new details about the closed-door Michael Jackson grand jury. 

Could it offer a glimpse in what prosecutors have up their sleeve?

(COMMERCIAL BREAK)

ABRAMS:  Coming up, new information about what prosecutors presented to the grand jury that indicted Michael Jackson.  But first the headlines. 

(NEWS BREAK)

ABRAMS:  We‘re back.  One of the two suspects in the worst domestic terror case before 9/11 could soon face the death penalty even though he‘s already serving a federal sentence of life without parole.  Terry Nichols, in closing arguments, in the state case against him are being heard in McAlester, Oklahoma today. 

NBC correspondent Jim Cummins has been in the courtroom.  So Jim, is this considered a very different case presentation than the federal case? 

JIM CUMMINS, NBC NEWS CORRESPONDENT:  Well, it is certainly longer.  After more than two months of testimony, 1,300 pieces of evidence, 250 witnesses, it‘s now going to the jury probably by tonight, Dan, and it comes down to this.  The prosecution‘s case is that even though Nichols wasn‘t in Oklahoma City the day the bomb exploded, he was at his home in Kansas, they told the jury that he was the mastermind behind it, that he had as much or maybe more to do with the planning of this bombing than Timothy McVeigh did.

Of course, as you know, he was convicted of murder in the federal trial and was executed.  Brian Hermanson, who‘s the lawyer for Nichols, told the jury that as far as he is concerned, and this is what he believes they should believe, he said that the state did not prove beyond a reasonable doubt that any crime was committed by Terry Nichols.  The defense lawyers introduced evidence of other unknown co-conspirators including John Doe II.  You might remember that sketch from the days after the bombing.

But, one of the prosecutors, Lou Keel, told the jurors, he said listen, he says two people or 20 people, it doesn‘t matter how many are involved in the conspiracy, everybody involved in the conspiracy is responsible for their crime and that they should convict him of 160 counts of murder.  Of course, if he is convicted of this crime, this same jury then will decide whether he gets the death penalty and in a key ruling in the case, the judge has said that they can only consider murder or acquittal.  They cannot consider any lesser charge in this and that differs from what they faced—the federal jury faced out in Denver back in 1997.  So this jury will decide up or down and they should have the case by sometime tonight—Dan. 

ABRAMS:  And Jim, there has been some split, has there not, amongst the family members of the victims as to whether they even wanted this case to be pursued in Oklahoma, the state case, where he could face the death penalty. 

CUMMINS:  There has been a distinct split among the victims and their families and we, of course, have seen over the many weeks that we have been here, we have seen those people who feel a trial was necessary, but there were a lot of victims and families who felt that the money—that it was just a waste of money that he was already serving a life sentence without the possibility of parole, but they did not prevail in this case.  And so now we‘re seeing that the courtroom is almost full every day and will probably stay that way through the penalty phase of this trial if indeed it goes to a penalty phase. 

ABRAMS:  Jim Cummins, thanks a lot. 

For the first time, details coming out about what went on inside the secret grand jury proceedings in the Michael Jackson case.  The grand jury met behind closed doors for 13 days, reportedly heard from more than a dozen witness, including the alleged victim and members of his family.  That‘s before this grand jury indicted Jackson (UNINTELLIGIBLE) 10 counts including conspiracy.  Now new information about some of the evidence that prosecutors presented. 

NBC News analyst and Santa Barbara News Press reporter Dawn Hobbs has some of this exclusive information from those secret proceedings.  She joins me now.

Dawn, thanks a lot.  So what did you learn? 

DAWN HOBBS, SANTA BARBARA NEWS PRESS:  Hi Dan.  Thanks for inviting me.  And as you know, this Michael Jackson case has been shrouded in a level of secrecy unseen in any other even high profile case or high profile grand jury case.  And the News Press previously reported identities of about half of the witnesses who testified and we recently learned from sources close to the case about some of the evidence presented that convinced the grand jurors to issue the indictment, the conspiracy.

Now, as you know, you must keep in mind that the threshold for indictment is much lower than that for conviction where only 12 of the 19 grand jurors had to decide to indict for that to happen.  Some of that evidence that we learned about was that there were passports, bank account statements, as well as tickets to Brazil that had been purchased.  And that evidence was then put forth to the grand jurors to indicate that there had been some sort of conspiracy between Mr. Jackson and five of his associates to take the family from the Neverland Ranch and whisk them to Brazil. 

Now, the co-conspirators on this, we also learned their identities, are Frank Tyson, Vincent Amen, Mark Schaffel, Ditra Wisner (ph) and Ron Kunitzer (ph) and they‘re all former associates and now it depends on which side you speak to about what this means.  According to Joe Tacopina, who is attorney for two of the alleged co-conspirators, then he says that the alleged victim‘s mother wanted to be taken out of the country, that after the Bashir video aired, everybody was calling her a bad mother for allowing her son to be on the show with Mr. Jackson.  And however, if you speak to sources close to the prosecution, then they of course say that this is evidence that there was a conspiracy at hand. 

ABRAMS:  Very...

HOBBS:  The News Press also...

ABRAMS:  Yes, I was just going to ask...

HOBBS:  (UNINTELLIGIBLE)

ABRAMS:  ... very quickly about the 1993, we were expecting that there might be evidence presented about the ‘93 allegations, but you are reporting that none of that came up in front of the grand jury? 

HOBBS:  Yes, we also learned from sources close to the case that although they had put on alert the witnesses and the alleged victim from the ‘93 case, that they could be called in to testify if the prosecution felt it was necessary.  None of them were actually called.  And once again, that can speak to either side of the issue. 

You speak to sources close to the prosecution, they say that that shows that their current case is so strong that they did not need to call in anybody from ‘93.  You speak to cases—to sources close to the defense, and they say well, look at what happened in ‘93.  That case crumbled and it wouldn‘t have done them any good to bring it in anyway. 

ABRAMS:  Yes.  All right, Dawn Hobbs, thanks for that report. 

Appreciate it. 

HOBBS:  Thank you. 

ABRAMS:  Coming up, your comments on whether Michael Jackson should be considered a flight risk. 

Plus, the Kobe Bryant defense team slams the police detectives who conducted the examination of the room where the accuser says she was raped.

(COMMERCIAL BREAK)

ABRAMS:  We are back.  Question—did investigators in the Kobe Bryant case bungle the crime scene by refusing to collect important pieces of evidence that could prove Bryant innocent?  Bryant‘s defense team says yes.  In a motion just filed, defense attorneys asking the judge to allow expert witnesses to testify that Detectives Doug Winters and Dan Loya‘s investigation of the hotel room where the alleged rape took place was shoddy at best. 

Quote—“The detectives closed their eyes to physical evidence at the scene that might have objectively confirmed Mr. Bryant‘s version and discredited the accuser‘s version.  This suggests both a bias against Mr.  Bryant and a willful or reckless unwillingness to consider the possibility that Mr. Bryant committed no crime and that the accuser was lying about the sexual encounter for ulterior motives.”

But how much will this matter?  Because remember both Bryant and the woman admit there was sex there between them.  Let‘s bring back our team—

Court TV anchor Lisa Bloom, Colorado criminal defense attorney Jeralyn Merritt and criminal defense attorney Jan Ronis. 

Jan, I‘m going to start with you.  I mean all right, so basically they‘re saying that they bungled the crime scene.  All right, we hear that in just about every case these days that defense saying they did this with the crime scene—but in a case like this doesn‘t it matter a lot less because they both agree that sex took place? 

RONIS:  Well, in reading the motion, it seems to me that there at least was some evidence of an exculpatory nature that might have been recovered had the police done the job...

ABRAMS:  Like what? 

RONIS:  ... that they should have done.  Well, she is alleged to have gone in the bathroom—excuse me—and cried and, you know, done some things that were kind of perhaps exculpatory to the defendant.  You know they didn‘t—the thrust of the motion is that they didn‘t collect evidence that might have been helpful to the defendant.  They make a pretty good case for it in the motion.  Now, whether it‘ll make any difference given the nature of the defense of consent is kind of up in the air...

ABRAMS:  Yes.

RONIS:  ... but this is one of those rare cases where the defense has more money and more expertise than the prosecution. 

ABRAMS:  Yes.  All right.

RONIS:  But it isn‘t the first time that a small Colorado town has kind of bungled an investigation.  I think of the JonBenet Ramsey case of many years ago. 

ABRAMS:  Yes, but I mean you know to compare—I mean you know, yes, maybe but the comparison between the two, I don‘t know. 

All right, Jeralyn, I‘m going to read you from some of the testimony cited by the defense in their motion.  Hal Haddon, the well-known defense attorney, says you‘re aware that the complaining witness said she had been crying and cleaned herself up in the bathroom.  Is that correct?  Talking to Detective Winters.

That‘s correct.  Haddon:  But you didn‘t apply for a search warrant for any substances that you might be able to find in that room.  No I did not.  And why was that Detective?  At the time, due to it being a hotel, I wasn‘t sure if the room had been cleaned or not. 

All right, look, bottom—and I didn‘t think of it.  He says and I

didn‘t think of it at the time.  OK, bottom line is not a good answer, not

·         it doesn‘t sound like great police work here.  But again, explain to me what it is that the defense really believes would help prove that Kobe Bryant is innocent? 

MERRITT:  That there would be physical evidence in that room that would show that he is correct, that this was consensual sex.  That she is lying when she says it was a sexual assault. 

ABRAMS:  Give me an example of what kind of evidence. 

MERRITT:  Let‘s say that they took—she went in the bathroom, she cleaned herself up.  She had just had sex, she is claiming a rape.  Maybe the towels that she wiped herself with would have evidence of blood on it if there had been a rape and maybe if there had not been a rape, there would be no evidence of that.  But the chair, she says she was raped over a chair.  They didn‘t take the chair.  They didn‘t examine the carpet around the chair.  They didn‘t examine the carpet leading to the bathroom.  Particularly in a case where you have consent as a defense and you have the woman saying rape, physical evidence is critical.  This could make the difference for the jury in terms of is he guilty or not and the police didn‘t pursue it. 

ABRAMS:  Lisa, look, you would conceive, would you not, that it sounds like they didn‘t do a great job at the crime scene. 

BLOOM:  Absolutely.  And Larry Ragle, who apparently is going to testify for the defense, was an O.J. Simpson expert witness on this very subject.  I happen to agree with both of the defense attorneys.  They should have done this.  On the other hand, let‘s keep in mind that everything the defense has done in this case has been to attack—to attack the victim, now to attack the police.  Probably they‘ll attack the prosecutors next.  Ultimately this is probably not going to matter all that much at trial.  It‘s going to come down to Kobe‘s word versus the teenage girl‘s word. 

ABRAMS:  And here‘s, Jan, what I don‘t get.  Let me read you—and this is on number one—let me read you what‘s in the motion.  The detectives failed to conduct any semblance of a regular and adequate crime scene investigation.  As a result, the physical evidence or lack of physical evidence that could have supported Mr. Bryant‘s assertions and disproved or cast doubt on the accuser‘s story, has been lost forever.  The failure to do so is tantamount to suppression of the evidence.

Again, let‘s assume again for a moment that they have a good argument here as to the bungling of the crime scene.  It sounds like what they‘re saying is we might have been able to prove a negative based on physical evidence at the scene.

RONIS:  Well, it does sound like that Dan.  But I think at the very least the jury might be instructed that they can draw whatever inference they want from the inadequate investigation based upon the job that was done.  I‘m not so sure that they are going to suppress anything significant in the case, but it might warrant a jury instruction.  And you know, who knows what tips it in favor of the defense.  You‘re kind of building a series of building blocks here...

ABRAMS:  Yes.

RONIS:  ... and this may the thing that tips it over in their favor.

ABRAMS:  Here is what they say, the defense says the police should have collected.  They should have taken photographs of the room.  They should have collected the chair that you were just talking about.  They should have inspected the carpet.  They should have collected material in wastebaskets, sink trap, shower drain.  They should have fingerprinted the room.  They should have collected sheets, pillowslips, and towels.

Lisa, as a result of this, are the prosecutors going to have to concede at trial look, this investigation wasn‘t perfect, are they going to have to say something like that? 

BLOOM:  Probably and we see that in a lot of high profile criminal cases.  The prosecution says something like look, the police aren‘t perfect, but and then they go on to talk about the credibility of witnesses, which will be the essential issue in this case.  Yes, the police clearly should have done more.  Look Dan, if they didn‘t even take photographs of the crime scene, come on, what were they thinking especially in a case with a high profile celebrity?  I‘m surprised they didn‘t even do that. 

ABRAMS:  (UNINTELLIGIBLE)

MERRITT:  You know when she goes to—the accuser goes to them and says I have been raped, they take pictures, they take videos.  When they go to talk to Kobe and he denies raping her and says it was consensual, they don‘t take pictures.  They don‘t take—you know, they don‘t even examine the room.  They had a research warrant to be able to search the room for his clothing in their pocket and they never used it.  And that‘s also in the transcript Hal Haddon provided.  But the real issue here is that the jury is going to be instructed that reasonable doubt can be found from not only the evidence presented, but from a lack of evidence.  And Hal Haddon and Pam Mackey are going to hammer home to this jury that the reason there‘s lack of evidence is because the cops didn‘t do their job. 

ABRAMS:  But, Jan, finally, but isn‘t there something different in cases where there is no dispute as to whether they had—if he was saying sex didn‘t happen, this would make perfect sense to me.  I mean this would be a crucial issue.  But when they both concede that it did, it seems to me all they could have done is gather more evidence in this case that possibly could be used against Bryant, I mean again even if he is innocent.  Am I wrong on that? 

RONIS:  Well look, if there had have been torn sheets, blood on towels, other significant evidence that pointed to his guilt, you could darn well rest assured that they would have collected this stuff.  I mean they didn‘t do the basic thing that you would think that police officers would do even if you‘re not a crime scene investigator.  They really have some basic omissions of...

ABRAMS:  Yes.

RONIS:  ... professional responsibility. 

ABRAMS:  Yes, no, it sounds like it.  All right, Lisa Bloom, Jeralyn Merritt, Jan Ronis, thanks a lot.

BLOOM:  Thank you.

MERRITT:  Thanks.

ABRAMS:  Coming up, my “Closing Argument” on San Francisco Mayor Gavin Newsom.  Why I think he‘s going to lose today‘s argument in front of the California Supreme Court over issuing marriage licenses to same-sex couples. 

Your e-mails abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  I will read some at the end of every show, coming up next.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, “Your Rebuttal” on whether Michael Jackson might try to slip out of the country to avoid prosecution.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—today‘s argument at the California Supreme Court over the mayor of San Francisco issuing just over 4,000 marriage licenses to same-sex couples.  First, what this argument was not.  This was not the argument over whether the state law that says marriage should only be between a man and a woman is unconstitutional.  Today all these programs and debates on whether it should be constitutional to define marriage in that way.  Discussions about how the ban on interracial marriages in the ‘60‘s is comparable not to this situation.  Well all of that may be taken up by the court in the next year or so.  It‘s not the point today. 

Today the question was an easier one.  Did the mayor have the authority to issue the licenses in direct violation of state law because he deemed the law to be unconstitutional?  And so are the licenses invalid?  The answer to that one seems easy to me.  Of course, he didn‘t have that authority.  The state law is crystal clear.  Quote—“Marriage is a personal relation arising out of a civil contract between a man and a woman.”  The city should have first challenged the law‘s constitutionality in the courts, not first ignore the law and let it be challenged later.  As the justices pointed out in their questions, using that logic, a police chief who thinks assault weapon laws or certain gun control laws violate the Second Amendment could just ignore them. 

On the other side one justice asked don‘t cities make these kind of preliminary constitutional determinations all the time, with respect to the issuance of, say, parade licenses ?  Yes, except that has nothing to with determinations that are direct violations of state law.  The debate over the law‘s constitutionality is still to come.  But until then, I like Mayor Gavin Newsom.  Mayor Gavin Newsom is a friend of mine.  But on today‘s issue he‘s on the wrong end of the law. 

I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night we debated the prosecution‘s effort to keep Michael Jackson‘s bail to $3 million.  They say he might flee to Europe or even Africa.  The defense is trying to get it reduced.

Deanna Velez agrees with the prosecution.  “I think everyone who is in the position Michael Jackson is in right now could be a flight risk, especially with all the means of support from fans and from the logistical point of view, if he decided to flee, he‘d have the means to do so.”

But Florella Pajuelo in Maryland says that is absurd.  “Michael would never flee because he wants to prove to the world that this case is a big lie.  He is tired of having the sigma of a child molester because yes, that‘s what people think.”

And Terrell Futch.  “As someone who works in law enforcement, I must say that Mr. Sneddon is full of crap.  If Michael was going to flee, Michael has had many opportunities to do so.  As long as the D.A.‘s office has Mr. Jackson‘s passport, Michael can‘t go overseas.  Michael Jackson is rich and $3 million would not keep him here if Michael really wanted to flee.”

And finally, last night we looked at the connection between al Qaeda terrorists and drug dealing with terrorism expert Rachel Ehrenfeld, who said all major drugs are really controlled by either criminal organizations that have ties with Islamist terrorist organizations or they‘re working together with them. 

Michael Kirwan in Miami Beach, Florida does not buy it.  “Your guest is asserting that all recreational drug sales are benefiting foreign boogeymen.  It may indeed be true that some are, but I can‘t imagine—I‘m saying now I can‘t imagine—but you know that the all these staunch Catholic Columbian cocaine—you know what—let‘s start this again.  All right, can we go back?  All right.

“Your guest—let‘s put—we have a little extra time here.  Sorry about that.  “Your guest is asserting that all recreational drug sales are benefiting foreign boogeymen.  It may indeed be true that some are, but I can‘t imagine staunch Catholic Columbian cocaine cartels are in bed with Islamic fundamentalists and I‘m positive that the monies made from the marijuana being grown hydroponically in basements all over the country aren‘t being siphoned toward terrorist activities.  Get a pot dealer on to debate her.” 

First, I wonder how—quote—“staunchly religious” most of these Catholic drug lords really are, but I like the idea of having a pot dealer debate her.  We‘re joined now by terrorist expert Rachel Ehrenfeld and pot dealer Mary Jane Sticks.  But Michael, on the whole you make a good point. 

Your e-mails abramsreport—one word -- @msnbc.com.  We‘ll go through them.  Please include your name and where you are writing from, and I will try to read them properly. 

Coming up next, “HARDBALL” with Chris Matthews.  Chris talks about the latest from Iraq with General Anthony Zinni. 

See you tomorrow. 

END   

Copy: Content and programming copyright 2004 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2004 FDCH e-Media, Inc.  (f/k/a Federal Document Clearing House Inc., eMediaMillWorks, Inc.), ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and FDCH e-Media, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

Discuss:

Discussion comments

,