updated 6/3/2004 10:08:05 AM ET 2004-06-03T14:08:05

Guests:  Dean Johnson, Lisa Bloom, Jayne Weintraub, Gloria Allred, Dr. Werner Spitz, Thomas Shanahan

DAN ABRAMS, HOST:  Coming up live from Redwood City, California, Scott Peterson‘s attorney says not only is Scott Peterson not guilty, he‘s stone-cold innocent. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  In his opening statement attorney Mark Geragos claimed the prosecution‘s case announced amounts to—quote—“nada, nothing”, picking it apart point by point, even suggesting Peterson‘s conversations with girlfriend Amber Frey support the defense. 

In a heart-wrenching custody battle, 4-year-old twins taken from their mother, a former “playboy” pinup.  The father, a married man who had left the children.  Now he‘s been awarded custody.  We‘ll talk to her lawyer. 

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone and welcome to Redwood City. 

First up on the docket tonight, the Scott Peterson defense.  Attorney Mark Geragos making his opening remarks to the jury today with no mention of satanic cults or rituals, arguing that Scott Peterson was a loving husband, and while conceding Peterson may have been a cad and a bit boorish -- after all, he admits cheating on Laci with girlfriend Amber Frey—

Geragos argued that does not mean he killed his pregnant wife.  And Geragos said the prosecution‘s theory that Peterson killed Laci at their home before going fishing makes no sense. 

He cited eyewitnesses who claim they saw Laci after the time Peterson says he went fishing that morning, and science, Geragos argued, proves the baby was born alive, which Geragos said would mean Scott Peterson could not have committed the crime.  But the defense did not address a number of the prosecution‘s strongest arguments.  For example, where the bodies were found, 90 miles from the Modesto home, and yet, just around two miles from where Peterson said he went fishing. 

Did not address many of Scott‘s alleged lies, for example, why he told some he went golfing, others fishing, the day Laci went missing.  Nor did Geragos address why Scott Peterson told Amber Frey his wife was dead and a number of other inconsistent statements by Peterson.  But an embarrassing moment for prosecutors today, when the defense seemingly proved that Scott Peterson did not lie to detectives when he said the last time he saw his wife she was watching Martha Stewart, something with meringue, he said. 

Prosecutors said there was no mention of meringue on the December 24 program.  Oh, yes?  Well, today the defense showed the jury the very same episode, and lo and behold, Martha mentioned meringue. 

Let‘s bring in our “A-Team” for the hour—criminal defense attorney Jayne Weintraub, Court TV anchor and attorney Lisa Bloom, and here with me outside the courthouse a man who‘s prosecuted many cases here, attorney Dean Johnson. 

All right, Dean, let me start with you.  You were in the courtroom.  You thought the prosecution‘s opening statement was average, so-so, you said? 

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  I would say so, yes.

ABRAMS:  And the defense? 

JOHNSON:  I think this is an “A” performance.  If you wanted to teach people how to do an opening statement, this has everything that you would get from the textbook. 

ABRAMS:  What was—why did it have such an impact on you? 

JOHNSON:  First of all, Geragos did what Distaso did not do.  He got up and grabbed the jury in the first 30 seconds.  He said, ladies and gentlemen, yes, it‘s true, Scott Peterson is a cad, he‘s boorish, he‘s committed adultery.  But you know what?  This is not a case about being a cad.  This is a murder case, and a murder case requires evidence. 

Then he turned to his client and held out his hand to him and said this man is not a murderer.  He then—having gotten the jury‘s attention, he then turned to an easel board that had most of the prosecution‘s most powerful points on it and he ripped into each one of them step-by-step. 

ABRAMS:  Let‘s go through some of those responses to the prosecution.  I should say I agree with you, that Mark Geragos I think did a far better job than did the prosecutors, who I thought were average.  I thought Geragos was very good today.  All right.  Here‘s what—how Geragos responded to some of the prosecution‘s arguments. 

He says Amber Frey, as if she‘s some sort of long-term girlfriend.  They‘d only had four dates total, and two dates before Peterson allegedly planned the murder.  They say there‘s evidence that Peterson was looking forward to having a child, as opposed to the prosecutors, who said that he didn‘t want children.  As we just said, he did not lie they said about what Laci was watching on TV when he left the house, and of course, prosecutors believed she was dead at that point. 

With regard to fleeing, remember, the prosecutor said he had $15,000 in cash.  He had a goatee.  He was in disguise.  Let me just read from one quotation here.  He said—he would be the first guy to flee to Mexico by heading north, pointing out that they captured him at a golf course.  On the tape Amber Frey—this is his girlfriend—Peterson speaks lovingly of Laci on that tape.  And he also says that Laci was very active, meaning that she had gone grocery shopping, she was not incapacitated, as the prosecutors had argued. 

So Lisa Bloom, you know, Mark Geragos seems to be addressing many of the most important points made by the prosecution. 

LISA BLOOM, COURT TV:  Well, Dan, I disagree.  He may have scored points about the meringue, but I think overall his defense opening was probably fluffier than one of Martha‘s souffl’s.  Look at what he didn‘t address.  How about the whole obsession with Amber Frey?  Whether they only had a few dates or not, they were sleeping together after Laci went missing, as Rick Distaso pointed out yesterday.  Scott Peterson is still calling her, saying our relationship will grow, that he wants to be with her.  Ten minutes before a memorial vigil he‘s calling Amber Frey.  She‘s recording those conversations.  That‘s an obsession...

ABRAMS:  But see...

BLOOM:  ... that‘s not just a couple of dates. 

ABRAMS:  But see Lisa, here‘s what no one is talking about.  It‘s that Scott Peterson had other affairs, all right?  And I am certain this is going to come up in the case.  But there is no question we know that Scott Peterson had other affairs...

(AUDIO GAP)

ABRAMS:  ... at that point.  It seems to me if they spend too much time focusing on Amber Frey as the motive and as the sole motive I think it‘s going to be a dangerous position for the prosecutors to take. 

BLOOM:  Well, I disagree...

(CROSSTALK)

BLOOM:  ... we see so many murder cases where the wife is killed for less significant reasons.  And keep in mind there was a time deadline Scott Peterson faced.  If he wanted to get rid of his wife and his unborn child, she was seven to eight months pregnant at the time of her death.  He had to act soon.  Also, he had told Amber Frey, according to Amber and according to the tapes, that he was going to be alone this Christmas.  It was going to be his first holiday season alone. 

None of that was addressed by Geragos, and Dan, you pointed out he didn‘t address the best piece of evidence the prosecution has.  The fact that Scott Peterson puts himself at the crime scene.  He said he was fishing in the very place where the bodies washed up four months later.  We didn‘t hear a word about that in this defense opening. 

(CROSSTALK)

ABRAMS:  Jayne, what about that?

JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY:  Lisa, as you well know, Dan, it‘s not his burden to go through each and every step of the prosecutor‘s case and discount it.  This is opening statement.  He wants to grab the jurors, and he wants to put the reasonable doubt in their minds and show the jurors what the government is not going to be able to prove. 

You know, a circumstantial case, we‘ve been hearing about it for days already.  Yes, it is good evidence.  But in this case they don‘t even have the circumstances.  All they have is speculation.  And, for example, a body that‘s washed up on shore isn‘t going to wash up in exactly the same place it was.  It‘s going to travel.  They‘re going to have experts that say that. 

ABRAMS:  Wait.  But it doesn‘t travel 90 miles, Jayne. 

BLOOM:  To the exact spot where...

WEINTRAUB:  Actually Dan, don‘t forget, this was months of decomposition...

ABRAMS:  Jayne...

WEINTRAUB:  ... in the water. 

ABRAMS:  ... there is no—just for the record, there is no physical way a body could have floated from Modesto to the San Francisco Bay, period. 

JOHNSON:  ... and you‘ve got to remember...

WEINTRAUB:  It wouldn‘t have floated...

JOHNSON:  ... a more basic point here, which is...

WEINTRAUB:  ... up right there. 

JOHNSON:  (UNINTELLIGIBLE) 

WEINTRAUB:  But you make it seem...

(CROSSTALK)

WEINTRAUB:  ... as if it‘s up to Mark Geragos...

ABRAMS:  All right...

WEINTRAUB:  ... to go through this and prove...

BLOOM:  Well, you think he might respond to the most compelling piece of evidence against his client and what about...

WEINTRAUB:  I think he did, Lisa. 

BLOOM:  ... Scott Peterson‘s lie as to what he was doing on December 24.  He told some family members he was fishing.  He told some family members...

WEINTRAUB:  He‘s a married man having an affair...

BLOOM:  ... he was golfing. 

(CROSSTALK)

BLOOM:  If he was off with his girlfriend, I could understand the lying, but he was off by himself.  Why is he lying about that? 

WEINTRAUB:  Lisa...

ABRAMS:  All right, let me take a quick break...

WEINTRAUB:  ... somebody who‘s a married man having an affair isn‘t going to be telling the truth. 

(CROSSTALK)

BLOOM:  ... he was alone, and still...

ABRAMS:  We are going to...

BLOOM:  ... he‘s lying as to where he was. 

ABRAMS:  ... take a break.  When we come back, more coverage of the opening statements in the Scott Peterson trial, coming up.      

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Scott Peterson‘s legal team has its own ideas about what really happened to Laci.  More on today‘s opening statement coming up in a moment.  We‘re live in Redwood City.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

MARK GERAGOS, SCOTT PETERSON‘S ATTORNEY:  Because I became convinced that he‘s innocent. 

UNIDENTIFIED FEMALE:  When was that? 

GERAGOS:  After talking with the parents and reviewing the discovery. 

I don‘t believe Scott Peterson murdered his wife or his child.  I don‘t believe that he‘s responsible. 

(END VIDEO CLIP)

ABRAMS:  Scott Peterson‘s attorney, Mark Geragos, talking to the reporters on the day that he took the case.  And in court today in the opening statements Mark Geragos focusing quite a bit on sightings of Laci Peterson.  Why is this important?  Well, remember, Scott Peterson says he left his house at 9:30.  The prosecutors are convinced that Laci was already dead at that point.  It seems pretty clear that some time after 10:15 or so, remember, the dog is found at about 10:18.  Scott Peterson has clearly left.  The problem for the prosecutors, according to Mark Geragos, is there were a lot of sightings of Laci Peterson in that neighborhood after 10:00. 

Dean Johnson, you think that‘s a big deal. 

JOHNSON:  Yes, I think that‘s a huge deal.  And Geragos saved that to the last part of his opening statement and that‘s what he wants the jury to remember.  He‘s trying to morph this case from a circumstantial evidence case into an eyewitness case and he claims to have a chain of three eyewitnesses, all of whom are quite consistent in their testimony. 

ABRAMS:  You know and Lisa, I think the prosecutors will have a problem if they‘re not able to discredit these witnesses.  I mean I think they believe they will be able to discredit them.  But do you agree with me that if any of these witnesses come across as extremely credible, that they are convinced they saw Laci Peterson, let‘s say after 10:00, that the prosecution could be in trouble here? 

BLOOM:  No, I do agree.  I think that‘s the strongest evidence that the defense has going for them.  Keep in mind, of course, all these folks have already been interviewed by the police.  They were discounted for one reason or another.  The jury is going to have to decide if they‘re credible.  In a high profile case when someone‘s missing, when the neighborhood is plastered with pictures, people do tend to come forward and say incorrectly that they saw the person.  Doesn‘t mean that they‘re lying.  Oftentimes people are just honestly misrecollecting what happened.  So we‘re going to have to listen to those witnesses pretty closely. 

WEINTRAUB:  How about, Dan...

JOHNSON:  And I‘ve got to say, Dan, I think the prosecution is going to slam-dunk these witnesses.  As far as the chain of three witnesses that supposedly saw Laci in a very close period of time, the prosecution‘s going to do a time and motion study that shows in fact these were very far apart in time and distance and Laci would... 

ABRAMS:  And they‘re going to say they have the wrong person...

JOHNSON:  Yes...

ABRAMS:  They‘re going to say...

JOHNSON:  ... exactly...

ABRAMS:  ... they mistook Laci...

JOHNSON:  Yes...

ABRAMS:  ... for somebody else, and you know eyewitness testimony is notably unreliable.  Very quickly Jayne, go ahead. 

WEINTRAUB:  The dog did not alert on the boat, and I think that is also a very strong piece of defense evidence.  Remember, the only witnesses and eyewitnesses will be called by the defense.  Remember, the burden of proof is on the state to prove that he murdered her in a premeditated fashion. 

ABRAMS:  All right.

WEINTRAUB:  They don‘t even have a cause of death. 

ABRAMS:  I‘m going to take a break here.  When we come back I want to ask everyone this question and that is what if it turns out that prosecutors believe they can prove that Scott Peterson was responsible for killing Laci but he didn‘t do it himself. 

UNIDENTIFIED FEMALE:  (UNINTELLIGIBLE)

ABRAMS:  Would that mean there would be a conviction?  When we come back we‘ll talk about it.  We‘ll also talk about Amber Frey.  The defense says those tape recordings of Amber Frey and Scott Peterson can actually help the defense.

And a custody battle that was—you see the end result here.  It is a sad story, a very controversial story.  It involves that woman, a former actress and “Playboy” pinup, loses custody of her twin daughters.  That‘s coming up...

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

JACKIE PETERSON, SCOTT PETERSON‘S MOTHER:  He‘s doing fine.  They‘re very nice.  The facilities are nice here, and it‘s very humane. 

(END VIDEO CLIP)

ABRAMS:  I don‘t care what you think about this case, that Jackie Peterson is a lovely woman.  That‘s the mother of Scott Peterson standing by her son who is facing trial.  And we have been covering the opening statements in that case, Mark Geragos, defense attorney, getting his opportunity today and get this.  Today Mark Geragos suggesting that all those tape-recorded conversations between girlfriend Amber Frey and Scott Peterson actually may help the defense in this case, because he talks lovingly about Laci and says he hopes to find her. 

Geragos says—quote—“If he‘s trying to off his wife in order to be with Amber, would he be telling her this?”  I‘m joined now by Gloria Allred, the attorney for Amber Frey. 

All right, Gloria, so it seems that Mark Geragos is saying that these audiotaped conversations of Amber Frey and Scott Peterson may actually help Scott Peterson. 

GLORIA ALLRED, AMBER FREY‘S ATTORNEY:  Don‘t think so, Dan, and I think that‘s one of the reasons that he‘s not the one that‘s going to be calling Amber Frey, it‘s going to be the prosecution.  I think clearly his relationship with Amber Frey is at issue.  He tried to suggest this morning that it was a matter of, what, two dates, maybe four dates, carefully avoiding the fact that there were—there was a long relationship over the telephone after Laci disappeared.  That—those telephone conversations, of course, having been recorded. 

Some of them will be going into evidence, as has been pointed out by both the prosecution and the defense.  And, you know, how is that going to help him?

UNIDENTIFIED FEMALE:  I‘ll tell you how.

(CROSSTALK)

ALLRED:  How is Scott Peterson going to be helped? 

(CROSSTALK)

ALLRED:  It wasn‘t actually—it was a rhetorical question.  How is he going to be helped, for example...

ABRAMS:  All right.

ALLRED:  ... by two witnesses who are going to say that Scott Peterson said he lost his wife before Laci disappeared and these will be the first holidays without her.  How is it going to help him...

ABRAMS:  All right.

ALLRED:  ... that he allegedly said or that he did say in a telephone conversation after Laci disappeared that he said to Amber that their relationship would grow. 

ABRAMS:  Jayne, go ahead.  Take it on.

WEINTRAUB:  Well number one, it‘s going to help Scott Peterson because Amber Frey, the scorned woman, when she finds out what‘s going on, after only a month—I don‘t care how many hours on the phone, it was one month.  The bottom line is she tries to entrap him 100 different ways, even at the police beckoning to confess and never—no matter what speculation, what guesses, what innuendos you put in there, Gloria, never once did Scott say that he did it.  Never once does Scott admit in any way, shape or form any complicity whatsoever in her death.  And so I say that helps him, number one. 

Number two is the fact that she is working at the government‘s request.  Why?  To cross-examine Amber Frey is a defense lawyer‘s dream.  This is a woman who wants to say you know she never knew he was married and never would have gone out with him.  And the truth of the matter is that she had already been with a married man.  The first night they were in a hotel room together and she left her kid.  I mean Gloria, come on.  You‘ve got to have clean hands to come to the table in a murder case.  There‘s no evidence of a murder...

ALLRED:  All right, Jayne, all right...

ABRAMS:  All right...

ALLRED:  ... let me respond.

(CROSSTALK)

WEINTRAUB:  What do you want a married man to say to Amber? 

ABRAMS:  All right, all right, all right, Jayne go ahead...

WEINTRAUB:  Of course he says I love you. 

ABRAMS:  Jayne, stop.  Go ahead Gloria.

ALLRED:  All right, you know, I guess you‘re, you know perhaps...

ABRAMS:  Go ahead...

ALLRED:  ... part of the smear machine of Mark Geragos, I don‘t know Jayne.  But you‘ve described Amber as a scorned woman.  The facts are totally to the contrary.  She was not scorned by Scott Peterson.  As a matter of fact, he continued the relationship with her after his wife is missing.  Eight-month pregnant wife Laci is missing.  There‘s a prayer vigil in the community for her and he‘s on the phone with Amber.  He continues that relationship.  He talks about their being together.  That‘s not a scorned woman. 

(CROSSTALK)

ALLRED:  That may be a lied-to woman...

WEINTRAUB:  ... Gloria...

ALLRED:  ... but it‘s not scorned...

WEINTRAUB:  ... but that‘s not a...

ALLRED:  The facts are to the contrary. 

WEINTRAUB:  That‘s not a murderer, that‘s an adulterer and not a nice guy...

JOHNSON:  What Mark Geragos is trying...

ABRAMS:  All right, hang on Jayne.  Hang on a second.  Go ahead.

JOHNSON:  Let‘s just remember what Mark Geragos is trying to do here.  What he‘s trying to do is take prosecution facts and turn them on their head.  The prosecution is making the Amber Frey affair a major component of their motive, and they‘re saying he was going to chuck his entire life...

(CROSSTALK)

JOHNSON:  ... because he felt trapped, he had children...

(CROSSTALK)

JOHNSON:  ... and he goes to Amber Frey, who has children. 

(CROSSTALK)

JOHNSON:  That doesn‘t make sense. 

ABRAMS:  You‘ve got to admit that it‘s a pretty good argument for Mark Geragos...

BLOOM:  Well I don‘t think it‘s a good argument Dan...

ABRAMS:  ... the idea—let me finish, let me finish, let me finish -

·         the idea that he is isolating that as the motive and saying if they‘re going to say that he is going to kill his wife for Amber Frey, that allows some fodder for the defense, doesn‘t it? 

    

BLOOM:  Dan, as we know watching crime stories, it‘s not always rational.  People can fall in love, be impulsive, be passionate very quickly.  Far be it from me to improve upon anything my mom had to say in defense of Amber Frey.  She‘s terrific. 

ABRAMS:  Lisa and Gloria are mother and daughter...

BLOOM:  I have to say hi, mom.  But, listen...

(CROSSTALK)

BLOOM:  ... you know, we see case after case on Court TV of husbands murdering their wives for far less.  And what we have on those tapes, which I‘ve read the transcripts of those Amber Frey tapes.  She is terrific.  She is worthy of Gloria Allred as her lawyer. 

ABRAMS:  All right.

BLOOM:  She is relentless.  She goes after...

WEINTRAUB:  That‘s all great, but there‘s no evidence of murder...

BLOOM:  ... Scott Peterson.  She wants an explanation...

ABRAMS:  All right, all right, all right...

BLOOM:  ... for why he told her that his wife wasn‘t going to be around at the holidays when in fact she was still alive. 

ABRAMS:  All right.

BLOOM:  He never explains that. 

ABRAMS:  Very quickly, let me just ask this.  Mark Geragos made a point today, and that is he was talking about Investigator Jacobson telling a court, telling a judge, and I‘m going to quote here, that initially Investigator Jacobson believed that Amber is involved, that Scott Peterson could not have done this alone.  That there was no way that one person could have done this to Laci Peterson.  I mean is that problematic, Gloria that early on that at least one of the investigators is saying no way it could have happened the way that the prosecution now claims it did? 

ALLRED:  You know, early on there‘s a lot of, you know, speculation about what in fact may have happened and who might have been involved.  It‘s been clear for a long time, Dan—and I know you know this, because you‘ve been on top of this case from the beginning—it‘s been clear that the Modesto Police Department not only do not think that Amber Frey was involved in a criminal way, but she‘s a total heroine.  She voluntarily came forward and assisted law enforcement.  Yes, she recorded phone calls or caused them or allowed them to be recorded in order to assist in the criminal investigation.  So she has been a heroine.  And I just want to say one thing about Mark Geragos‘ argument...

ABRAMS:  Quickly, yes...

ALLRED:  ... this morning about OK, well he‘s an adulterer, but he‘s not a murderer.  OK, well that may be true from Mark‘s point of view, but, of course, we know that most—the leading cause of death of pregnant women is a homicide...

ABRAMS:  But those arguments are never persuasive...

ALLRED:  ... and most of those homicides...

ABRAMS:  ... and you know what...

ALLRED:  ... no, wait a minute. 

ABRAMS:  ... the problem is any time you...

ALLRED:  But most of those homicides are by husbands. 

ABRAMS:  Let me tell you something.  Any time you start getting into statistics, though, I think you get—I think it‘s a dangerous position for prosecutors to start citing statistics. 

ALLRED:  Well they‘re not citing statistics...

ABRAMS:  Because they will then reverse it and say yes, but every time someone cheats on his wife, what percentage of them actually kill them?  I mean...

UNIDENTIFIED FEMALE:  Dan...

ABRAMS:  ... you know...

(CROSSTALK)

ALLRED:  The prosecutors are not citing the statistics...

ABRAMS:  All right...

(CROSSTALK)

ALLRED:  I am citing them.

ABRAMS:  ... so I‘m now throwing it back at you.

(CROSSTALK)

JOHNSON:  ... Gloria...

ALLRED:  But it‘s true.  Nobody says...

JOHNSON:  Gloria...

ALLRED:  ... that you should cite...

(CROSSTALK)

ALLRED:  ... statistics when you say most adulterers are not murderers.  What‘s wrong—you know nobody says that and that‘s true...

(CROSSTALK)

ALLRED:  Most adulterers are not murderers...

ABRAMS:  All right...

ALLRED:  ... but most women...

WEINTRAUB:  Don‘t forget why they moved back to Modesto...

ALLRED:  ... pregnant women are killed are killed by their husbands. 

(CROSSTALK)

ABRAMS:  Hang on.  Hang on...

(CROSSTALK)

ABRAMS:  One at a time.  One at a time...

(CROSSTALK)

ABRAMS:  Very quickly, 10 seconds, yes.

JOHNSON:  It is statistically true that the husband is often the main suspect in a wife-killing. 

(CROSSTALK)

JOHNSON:  The second suspect, when there‘s a love triangle is the other side of the triangle, which is why the Modesto police...

ABRAMS:  All right.

JOHNSON:  ... were looking at Amber Frey. 

ABRAMS:  Gloria Allred, thank you very much for joining us. 

ALLRED:  Thank you.

ABRAMS:  We appreciate it.  The rest of the team is going to stick around. 

When we come back the defense says the science proves that Peterson did not kill his wife.  The question—how scientific is the science? 

And for an interactive timeline of events in the Peterson case, log on to abramsreport.msnbc.com.  Your e-mails, send them to abramsreport@msnbc.com.  I‘ll read them at the end of the show.  Stay with us. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, how the science comes up in the opening statements today in the Scott Peterson trial.  But first, the headlines. 

(COMMERCIAL BREAK)

ABRAMS:  We are back.  We are covering the opening statements in the Scott Peterson trial.  I should just point out that one of Scott Peterson‘s relatives just stopped by and made a point that if—one of the guests on the program, had apparently said that Scott Peterson was sleeping with Amber Frey after Laci went missing.  I don‘t think anyone—if they did suggest it, didn‘t mean to.  Not accurate.  We continue. 

Today Scott Peterson argued that the science proves that he could not have killed his wife.  That while Laci‘s medical records indicate that she was about seven and a half months pregnant, Mark Geragos argued the baby was far more developed when it was found washed up on shore in April, and that tape and twine wrapped around the baby‘s neck could only have been placed there after the boy was born or removed from Laci‘s body. 

I don‘t think there‘s any question if the defense can show that baby was born alive, it would be tough to believe Scott Peterson could have done it, since he was monitored from the time Laci was reported missing.  So how exact a science is it? 

Joining us is Dr. Werner Spitz, the nationally known medical examiner from Macomb County Michigan.  Dr. Spitz, thank you for coming back on the program.  Appreciate it. 

DR. WERNER SPITZ, MACOMB COUNTY MI MED. EXAMINER:  Thank you. 

ABRAMS:  All right.  When this story initially broke, when we reported it first about this autopsy, you were on the program with me. 

SPITZ:  Yes. 

ABRAMS:  You believed at the time that the way the coroner‘s report described that twine and tape, you believed it would have been very difficult for that to have gotten there accidentally.  Now that you‘ve had a chance to research more of the material, now that we‘ve been able to sort of graphically depict exactly how that tape was wrapped around the baby, do you still stand by that position that it‘s very hard to believe that it got there accidentally? 

SPITZ:  No, I don‘t believe that anymore.  I don‘t believe it anymore, after I saw the artist‘s rendition of the way the pathologist who described it, the artist made a drawing of it and...

ABRAMS:  Yes.

SPITZ:  ... I now realize that that tape is not tight around the neck.  That tape is loose.  That tape is one and a half times around the neck and arm, left arm.  There‘s a knot somewhat removed.  The tape is not tight at all.  I think this tape is totally consistent with having floated up and the wave action put it where it is on the drawing. 

ABRAMS:  What about the point Mark Geragos makes, which is that there‘s simply—the opening on the tape simply isn‘t big enough for it to have come over the baby‘s head? 

SPITZ:  Well, it doesn‘t look that way on the drawing that the opening is not big enough.  Besides, there is probably some swelling of the head after death from gases of decomposition, which has to be considered.  Although the baby is not really that decomposed, but some swelling must be accounted for in a child that is found after several—at least days or maybe even longer in the water. 

ABRAMS:  How definitive is it when someone says a baby was 32 weeks, 36 weeks, 38 weeks?  Is there a test that can be done to determinatively assess how advanced a particular fetus or baby was? 

SPITZ:  Well, the sonogram of 31 weeks is notoriously unreliable.  The 20-week sonogram of which there is available, is much more reliable than the 31-week.  But if you consider for a minute, the police found a baby, not a fetus.  They found what they thought was a fully developed child.  The pathologist describes it at 33 to 38 weeks.  The sonogram seems to suggest that approximate age.  The expected date of delivery or what the family says is when—how far gone she was when she died with this pregnancy.  When you put all this together, there is little doubt that this was nearly a full term baby. 

ABRAMS:  And Dr. Spitz, that seems to very much help the defense‘s argument, correct? 

SPITZ:  Well, I‘m not for the defense or for the prosecution.  I‘m just telling you what the facts—the scientific facts are.  So I have little doubt from everything I know of this case, and with time there is quite a long story that I know that this is a baby that is close to full term. 

ABRAMS:  Lisa Bloom, if the jurors believe that, I don‘t think there‘s much hope for a conviction.  Would you agree with that? 

BLOOM:  Well that‘s a big if and that‘s a big assumption.  I think there will clearly be the battle of the experts.  It‘s all going to be about interpretation.  But look, there‘s as much difference in development in an 8-month-old fetus as there is between 8-year-old children.  Some are much more developed than others and I think when all is said and done and all of the expert testimony is heard in this case, the jury will probably discount all of it.  It will probably all cancel each other out as it usually does with expert testimony. 

SPITZ:  No, I...

WEINTRAUB:  I don‘t think so.  And I think that the jury instruction in California will show that.  I mean, Dan, in California the jury instruction is going to be if there are two circumstances, one leaning toward guilt and one leaning...

ABRAMS:  Right.

WEINTRAUB:  ... toward innocence, you must find the one that‘s leaning towards innocence... 

ABRAMS:  Hang on.  Dr. Spitz...

WEINTRAUB:  ... if they‘re both reasonable explanations and...

ABRAMS:  Hang on.  Dr. Spitz...

(CROSSTALK)

ABRAMS:  ... Jayne, hang on a sec.  Dr. Spitz wanted to say something. 

Go ahead Dr. Spitz.

SPITZ:  I would—I just wanted to say that you base that opinion also on bone age, and the pathologist would—you see, bones have what is called centers of ossification, where the bone is actually formed, and you can see those at autopsy.  So if the pathologist says that this in between 33 and 38 weeks...

BLOOM:  But that‘s a big range. 

WEINTRAUB:  There is no other way...

(CROSSTALK)

WEINTRAUB:  ... to definitively test. 

(CROSSTALK)

BLOOM:  We don‘t know exactly when...

ABRAMS:  Hang on, hang on, hang on, hang on, hang on, hang on...

(CROSSTALK)

ABRAMS:  Hang on. 

SPITZ:  Of course there is a range...

JOHNSON:  You need to listen very closely...

ABRAMS:  Hang on—Dr. Spitz, hang on one second...

JOHNSON:  ... listen very closely to what‘s being said here by the lawyers.  Neither the prosecution nor the defense has said definitively that this was a coffin birth or a live birth.  They have both said that it‘s consistent with either condition and...

ABRAMS:  No, wait, wait, wait...

JOHNSON:  Yes.

ABRAMS:  The prosecutors are not saying it‘s possible that this baby was born alive. 

JOHNSON:  No, no, what they‘re—what they said was they said it very defensively and I recall this from being in the courtroom.  They said that it‘s consistent with the baby being a coffin birth.  They did not...

(CROSSTALK)

JOHNSON:  ... say that they‘ve definitely got a coffin birth.  And remember, too, the experts have to be weighed just like any other witnesses.  In this case...

ABRAMS:  Right.

JOHNSON:  ... the prosecution‘s original witnesses didn‘t give them what they wanted.  They said, you know what?  This looks like a full term baby. 

ABRAMS:  Well I mean look...

(CROSSTALK)

ABRAMS:  ... little misleading on that in court today.  He‘s talking about like a detective who shows and finds the body and says, oh, it looks a couple of days old to me.  And Mark Geragos is saying (UNINTELLIGIBLE). 

(CROSSTALK)

ABRAMS:  That‘s not an expert opinion. 

(CROSSTALK)

ABRAMS:  That‘s just some guy...

UNIDENTIFIED FEMALE:  That‘s right.

ABRAMS:  ... who‘s seeing a little child and saying it‘s a couple of days old. 

JOHNSON:  They were held out as having that opinion, and they went out and because they didn‘t get what they needed at the preliminary hearing, they went out and hiring a brand new expert.  They‘re playing the game of finding the expert who will say what they want to say. 

ABRAMS:  But Lisa Bloom, you would agree with this statement from Mark Geragos, would you not, and I quote number 12 here.  “If this baby was born alive, clearly Scott Peterson had nothing to do with this murder.”  Would you agree or...

BLOOM:  Yes...

ABRAMS:  ... disagree with that statement...

BLOOM:  ... I agree and if there‘s a videotape of somebody else killing Laci Peterson, Scott is going to walk, too, but don‘t hold your breath, Dan.

ABRAMS:  All right.  Dr. Spitz...

(CROSSTALK)

ABRAMS:  ... thank you.  It‘s always good...

SPITZ:  You‘re welcome.  Do you want to have a final word?  Go ahead Dr. Spitz.  Go ahead. 

SPITZ:  Well, I would say that the likelihood that this was a live birth is extremely remote.  The baby shows a cut across its middle, the chest is open, the—a cut that enters all the way into the interior of the body, that was done from an outboard motor, and the baby looked like much less decomposed than the mother.  All that tells me...

ABRAMS:  All right.

SPITZ:  ... that an outboard motor made an opening in the mother so that the baby...

ABRAMS:  All right...

SPITZ:  ... was expelled through that cut. 

ABRAMS:  Maybe.  Look, this is why Dr. Spitz is a great shooter.  He‘s given us a lot of information, which seems to help the defense, and then he turns around and gives us a lot of information that helps the prosecution.  And that‘s why he‘s a good objective expert.  You may not hear...

SPITZ:  Thank you.

ABRAMS:  ... a lot of those in court.  Dr. Spitz, thank you. 

SPITZ:  You‘re very welcome.

ABRAMS:  Also thanks to our panelists...

SPITZ:  Thank you.

ABRAMS:  ... Jayne Weintraub, Lisa Bloom and Dean Johnson. 

We also heard from the first witness in the trial today.  Not just opening statements.  What she had to say when we come back. 

And later, the dramatic child custody case unfolding on the streets of New York.  A former model and actress forced to give up custody of her twins to the married man she once had an affair with.  We‘ll talk to her lawyer. 

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  It wasn‘t just opening statements today in the Scott Peterson trial.  The first witness for the prosecution called to the stand, Marguerite Nava, a housekeeper who had worked in the Peterson home. 

Jennifer London was inside the courtroom when she testified.  So Jennifer, what is the prosecution calling her for? 

JENNIFER LONDON, MSNBC NEWS CORRESPONDENT:  The prosecution was calling this witness to testify about cleaning the day before Laci went missing.  This would be December 23, 2002.  The prosecution really trying to establish that Nava did a full cleaning of the Peterson home.  She cleaned the bathrooms.  She cleaned the bedrooms.  She mopped the kitchen floor.  She cleaned the kitchen.  The prosecution asking what kind of cleaning products did you use, a mop, a bucket, water, Pine-Sol.

ABRAMS:  Trying to say it‘s very hard to believe that Laci Peterson would have been mopping the floor the next day as Scott Peterson claims when he left the house. 

LONDON:  Right.  Because this cleaning woman, according to her testimony today, cleaned the day before and she mopped, leaving the mop outside, her usual routine.  The defense really pushing Nava on two points.  One, what was Laci wearing that day.  Geragos really wanting to know, was she wearing black pants and a white shirt?  Nava saying she didn‘t remember.  Geragos saying let me refresh your memory from the testimony you gave at the preliminary hearing.

Nava saying that on the four times total that she had cleaned the Peterson home, this was the standards attire that Laci was wearing.  Geragos also really wanting to talk about these window shades.  Were they up?  Were they down?  Did Nava have to open the shades to clean the sill?  Again Nava saying she didn‘t remember. 

ABRAMS:  Again, the significance there is that some neighbors said it was a little odd that the shades weren‘t up in the...

LONDON:  Right.

ABRAMS:  ... Peterson home, that Laci every morning would get up and open them.  The prosecutors are trying to show (UNINTELLIGIBLE)...

LONDON:  They were down.

ABRAMS:  ... this proves that they were down, and, therefore, that there was something insidious going on.  Very quickly... 

LONDON:  And one other point very quickly.  They talked about—the prosecution—was Laci tired that day, looking tired, acting tired.  Remember, the prosecution...

ABRAMS:  Yes.

LONDON:  ... saying she wasn‘t supposed to be engaged in a lot of activity.  She‘s not going to go walking her dog.  Nava testifying that that day she saw Laci on the couch actually putting her feet up. 

ABRAMS:  And she came with some groceries as well? 

LONDON:  She came with some groceries, yes.

ABRAMS:  Right.  Jennifer London, thank you very much. 

Coming up, just what was going on in this scene?  An actress and former “Playboy” pinup forced to give up custody of her twin daughters to the married man with whom she had had an affair.  We‘ll talk with her lawyer up next. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, twin girls taken from their mother in a nasty custody fight.  A judge rules against the model/actress mom because of what she allegedly told her daughters to say about dad.  We‘ll talk with the mother‘s lawyer when we come back.

(COMMERCIAL BREAK)

ABRAMS:  As my regular viewers know, this is usually the segment where I give my “Closing Argument” editorial and read your letters.  I do write both of those segments and they are very time consuming.  And since I‘m covering the Peterson trial, to be honest, I just haven‘t had the time.  Those segments will be back on Friday. 

Now to another story, an emotional scene in New York Tuesday.  A family court judge orders a former “Playboy” model to turn over custody of her 4-year-old twins to their biological father.  A married man that she says abandoned her when she was four months pregnant. 

We‘ll talk to the woman‘s attorney in a moment.  But first, NBC‘s Hoda Kotb has the story. 

(BEGIN VIDEOTAPE)

HODA KOTB, NBC NEWS CORRESPONDENT (voice-over):  Child custody cases can be nasty but few end up as ugly as this. 

(CRYING)

UNIDENTIFIED FEMALE:  (UNINTELLIGIBLE)

KOTB:  A wrenching horribly public battle over 4-year-old twin girls, played out right on the busy streets of New York City.  The girl‘s mother, the redhead here, is Bridget Marks, former “Playboy” pinup, actress and romance novelist. 

UNIDENTIFIED MALE:  (UNINTELLIGIBLE)

KOTB:  The girls‘ father is 54-year-old John Aylsworth, a wealthy casino executive who has been married to someone else for more than 30 years.  The courts ordered Bridget to hand off her children to their father who now has full custody.  So many wondered how it ever came to this.  It started so differently, she says, in 1998.  Bridget had an affair with John Aylsworth that went on for years.  Bridget got pregnant.  She says when the twin girls were born, John wanted little to do with them. 

BRIDGET MARKS, LOST CUSTODY OF HER DAUGHTERS:  I am their mother. 

John is their father.  But I‘ve been there for them. 

(CROSSTALK)

MARKS:  He abandoned me when I was four months pregnant.  I‘ve done this all by myself.  I put them in school.  I‘ve gotten them into private school.  I single-handedly raised these children and it‘s a tragedy. 

KOTB:  But then one day, John decided to fight for custody of his daughters.  The custody hearing got nasty.  So nasty, she had his visits secretly videotaped, accused him of sexually abusing the young girls.  He accused her of lying about it.  In the end, the judge awarded full custody to the father.  And the mother?  Supervised visitation. 

So, why would the children‘s biological mother only get supervised visitation?  According to court records, the judge believes she made up the allegations of sexual abuse to smear him.  She was angry because he wouldn‘t divorce his wife to marry her.  The judge said, her unbridled anger toward the father and inability to foster the paternal parental relationship make her ill suited to be the custodial parent.  To leave the children in her custody would expose them to further emotional damage.

John Aylsworth and his attorneys denied our request for an interview.  The judge said in her findings that his infidelity did not reflect on the kind of dad he would be.  While the petitioner has had extra marital affairs, his failings impact on his ability to be a good husband, not a proper custodial parent, which brings us back to this day.  This not of cameras, the madness on the street.  Bridget‘s mother says their family wanted all this media attention. 

KOTB (on camera):  Why didn‘t Bridget do this in a more subtle way, like take the children out privately instead of having this big circus out here on the street?

MOLLY BENNETT AITKEN, BRIDGET MARKS‘ MOTHER:  Well I think one very good reason is that the public has to see what is happening to hundreds of children. 

KOTB (voice-over):  She says all of this sheds light on the problem. 

The only problem is, two confused little girls...

UNIDENTIFIED FEMALE:  (UNINTELLIGIBLE) I love you.  I love you...

KOTB:  ... seem to be the ones feeling heat.

UNIDENTIFIED FEMALE:  I love you.  I love you.

(END VIDEOTAPE)

ABRAMS:  (UNINTELLIGIBLE) a horrible story.  NBC‘s Hoda Kotb, thank you. 

Joining me now is Thomas Shanahan, Bridget Marks‘ attorney.  Mr.

Shanahan, thank you for taking the time to come on the program. 

THOMAS SHANAHAN, BRIDGET MARKS‘ ATTORNEY:  Thank you for having me. 

ABRAMS:  All right.  First let me ask you, did she lie about the sex abuse allegations? 

SHANAHAN:  No, she did not and that‘s one of the fundamental problems with this case.  It was the duty of—she reported—let me start from the beginning.  A nanny reported this to her.  It is that nanny who actually went to Child Protective Services and reported the abuse.  There was a second allegation that was reported by a camp counselor. 

My client, as soon as she became aware of it, called the NYPD.  The law guardian had the obligation to pursue those allegations to find out whether they were true or not true.  They did not follow through on that investigation.  And actually in this particular case and this goes to the heart of the constitutional issues here, this child psychiatrist who put an affidavit in saying that she believed this occurred was fired by the law guardian in this case.  And the children were not allowed to see that law guardian any longer. 

ABRAMS:  All right.  All right.  It gets a little confusing when you refer to a law guardian, et cetera.  But you know I read the court‘s opinion and it‘s clear this judge believes that the accusations were not true and the judge actually cites the testimony of three people, including a forensic evaluator, assigned by the court...

SHANAHAN:  Right.

ABRAMS:  ... meaning theoretically, an objective observer and the court is saying, look, all three of these people recommended that she lose custody. 

SHANAHAN:  But again, that goes to the heart of why we filed a federal lawsuit.  That forensic psychiatrist didn‘t go to the trouble to speak to the teacher, to speak to the nannies that spent every day with this girl.  He was very selective in who he spoke to and what—and when he was putting together his report.  And for the court to rely on a biased opinion, such as Dr. Phillips (ph), in this case, we believe violates due process. 

These are people who are appointed by the courts to look out for the best interests of these children.  That did not happen here.  We were up against the father.  And I was not the attorney, by the way, in the family court proceeding.  I was brought on for the purpose of the federal lawsuit.  But the judge relied on opinions that are tainted and did not take into consideration positive evidence towards my client. 

ABRAMS:  If she did lie, if a fact finder finds that she did lie, do you agree that as a legal matter, if she makes up sex abuse allegations about dad, that they can as legal matter, take away children from mom? 

SHANAHAN:  No, I do not.  First of all, she vehemently denies that she made up those allegations.  She reported them to the NYPD as she had an obligation to do.  But getting to your question, no.  If the judge sincerely believed that parental—excuse me—that there was a problem here and that she made this up, there were other alternatives than taking the children away, such as counseling.  And that‘s what the case law suggests would be the appropriate remedy here and to have monitoring and supervision...

ABRAMS:  Very quickly...

SHANAHAN:  ... on the visits.

ABRAMS:  ... are you going to appeal? 

SHANAHAN:  We tried the file an appeal.  The judge issued a tentative decision.  There‘s no final decision.  We were denied that right by the state courts.  We‘ll be in federal court Monday seeking to stay the order of Judge Goldberg.

ABRAMS:  Boy, this is a tough case.  I thought about this a lot after reading the opinion.  I just couldn‘t decide which way to go.  And I guess it depends on the ultimate question of whether she lied or not. 

Mr. Shanahan, thanks a lot for...

SHANAHAN:  Thank you.  Thank you.

ABRAMS:  ... coming on the program.  Appreciate it. 

Your e-mails abramsreport—one word -- @msnbc.com.  We will start going through them and read them on the air.  I promise. 

A programming note.  This weekend, MSNBC‘s special coverage of D-Day all weekend long.  In addition to our special, Joe Scarborough will be reporting from Normandy.  We‘ll take look at the intelligence, the allies used to pull off the invasion on a special edition of THE ABRAMS REPORT Saturday at 6:00 p.m. Eastern.

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

END   

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