updated 6/4/2004 10:37:25 AM ET 2004-06-04T14:37:25

Guests:  Leslie Crocker Snyder, Dean Johnson, John Burris, Daniel Sosnowski, John Banzhaf, Mercedes Colwin, Juan Catalan, Todd Melnik

DAN ABRAMS, HOST:  Coming up, the first full day of testimony in the Scott Peterson trial. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  On the stand, the last witnesses to have seen Laci Peterson alive.  What she was wearing could make or break the prosecution‘s case. 

Plus—“Ladies‘ Night”, free drinks and other incentives to get more women into bars.  But now in New Jersey, it‘s unconstitutional.  A state agency finds the policy discriminates against men. 

And he was charged with murder, serving time until video from Larry David‘s HBO show “Curb Your Enthusiasm” helped clear him.  The recently released defendant joins us. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First on the docket tonight, retracing Laci Peterson‘s steps the day before she was reported missing.  Laci‘s half-sister Amy Rocha taking the stand today to testify about, among other things, what Laci was wearing that day.  Now, why is that so important? 

The prosecutors say she was wearing the same clothes when she was found as she was wearing the day before she went missing they believe because she was killed some time that night.  Scott Peterson said she was wearing a different outfit, black pants instead of cream-colored ones when he left the house the next morning.  Prosecutors believe that‘s a lie, that she was already dead. 

And Amy Rocha also testifying about where Peterson told her he‘d be on Christmas Eve.  At preliminary hearing she testified that Peterson told her he would be golfing at a nearby country club, not fishing.  This morning the jury hearing from four prosecution witnesses testifying to Laci‘s activities, as well as that clothing, the cream-colored pants that she was wearing. 

All right.  Let‘s go to the courthouse, MSNBC‘s Jennifer London joins us from there.  Amy Rocha on the stand now.  So give us a little better sense of what she has been testifying about and why it‘s important. 

JENNIFER LONDON, MSNBC CORRESPONDENT:  Well Dan, the prosecution is starting out with some very general questions of Amy Rocha, asking Amy, had she been to the Peterson‘s house, what was the layout of the house?  Also asking questions about the Petersons‘ lifestyle, what kind of car did Laci drive?  What kind of car did Scott Peterson drive? 

The prosecutor Rick Distaso asking Amy, did Laci seem happy about the pregnancy?  Amy saying, yes, she did.  The prosecution also asking how did Amy—how did Laci feel physically?  Amy Rocha saying, well she seemed a little tired.  Then we got into more specific questions, turning to the date of December 23, 2002.  Scott Peterson and Laci Peterson meeting Amy at the hair salon where Amy works so that Amy could cut Scott‘s hair. 

Now during these questions Amy Rocha is staying very composed.  Her voice is very strong.  Again, the questions were more general in nature, but she was very composed.  Now at the hair salon, prosecutor asking if Amy had cut Scott‘s hair a lot, if he was a regular customer, if you will.  And Amy saying yes, she cut Scott‘s hair quite a bit.  The prosecution asking did Scott ever ask to have his hair dyed, have his eyebrows dyed and Amy saying no, he never did. 

Now in terms of what Laci was wearing, Laci at the hair salon that night as well, Amy Rocha saying that she is positive that Laci was wearing a black blouse with cream polka dots or small flowers.  She was wearing cream capri pants.  She was wearing a black jacket and a cream scarf and black Mary Jane shoes. 

Now earlier today we heard from other witnesses who saw Laci Peterson earlier in the day saying Laci was wearing black capri pants and a long, white sleeve shirt.  And Dan, as you mentioned, the clothing a point of contention here.  Scott Peterson telling detectives, when he left to go fishing on Christmas Eve, Laci was wearing...

ABRAMS:  You know...

LONDON:  ... black pants and a white shirt.  The prosecution saying, when her body was found she was wearing khaki maternity pants...

ABRAMS:  Right.  Let me ask you a question Jennifer.  Yesterday in the opening statement, Mark Geragos said and I quote, “Evidence is going to show you that they already showed the picture to Amy.  That is of what those cream colored pants supposedly looked like who was working at Salon, Salon.  She saw Laci the night before.  Those were not the pants that she was wearing.  They were not drawstring, did not have that style of pocket.”

Basically Geragos saying look, even Amy Rocha concedes that the actual pants that were found on Laci Peterson were not the same pants she was wearing the night before.  Does Amy Rocha concede that? 

LONDON:  That did not come up at this point in the prosecution questioning.  All the prosecution saying when after she described the pants, are you certain that those pants were cream and that the blouse...

ABRAMS:  OK.

LONDON:  ... was black.  And Amy saying at this point yes.  Now when I stepped out of the courthouse, cross-examination had not begun...

ABRAMS:  All right.

LONDON:  ... but this will be a point of contention, Dan. 

ABRAMS:  Well get back in there, Jennifer.  You know you‘re out here wasting your time with us. 

LONDON:  Will do. 

ABRAMS:  Jennifer London, as always, thanks a lot.

Is the prosecution making a big mistake?  Here‘s the question, I have been wanting to ask this for a couple days.  Is the prosecution making a big mistake by, I think in a way, sort of hanging their case on what Laci was wearing?  Did they need to get this specific?  Did they need to say that Scott likely killed her the night before essentially and transported her body to the San Francisco Bay? 

Let‘s check in with our legal team—California criminal defense attorney John Burris, retired New York Supreme Court Justice, Leslie Crocker Snyder, and Dean Johnson, former San Mateo County prosecutor. 

All right, let me start with Judge Snyder.  All right, I think that these prosecutors could have moved forward without making such a big deal about the idea that, oh, we are convinced Laci Peterson was killed at her home.  That was the place it happened.  This whole notion that he necessarily transported the body.  I mean it seems that‘s all—this is where all of their problems are occurring.  The eyewitnesses who see Laci, this business about what she was wearing the night before, couldn‘t they have done this in a way where they wouldn‘t have to get caught up in all of these details? 

LESLIE CROCKER SNYDER, RET. NY SUPREME COURT JUSTICE:  Well I can only speculate as to that, but obviously, every prosecution develops a theory.  And the theory especially in a circumstantial evidence case is extraordinarily important because one factor leads to another, leads to another.  And I‘m certain that they have good reason and will explain how they have constructed it.  Now whether or not there are any problems in that chain of evidence, which, of course they have to link very carefully together to get their conviction in a circumstantial case remains to be seen.  But they feel they can prove it, and I think we have to give them a chance to do that. 

ABRAMS:  Yes, but Dean Johnson, we know what they are going to say.  I mean it seems pretty clear that the evidence that they have, that she was killed that night, essentially, or some time overnight, is the clothing.  I mean is there another single piece of evidence that we heard either in the preliminary hearing or the opening statements that suggest that prosecutors know that?

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Well, no, actually, we don‘t have a scene of death, time of death, cause of death.  But the clothing is an important point.  You cannot dispute that Laci‘s body had a certain piece of clothing on.  So if that‘s the clothing that she was wearing at the time, you can establish a time of death.  I think, though, Dan—and I am gauging this on the reaction of people coming out of the courtroom and talking today, is that this is a point that really ought to be saved for the prosecution‘s rebuttal case.  What this clothing is really helpful for is rebutting what Geragos claims is a case for the defense based on eyewitness testimony.  Eyewitnesses all identifying Laci as wearing a black and white outfit rather than...

ABRAMS:  Yes.

JOHNSON:  ... khaki pants.  You save this for the rebuttal...

ABRAMS:  That‘s a good point, yes...

JOHNSON:  ... and to slam-dunk those eyewitnesses by saying they were wrong...

ABRAMS:  Yes.

JOHNSON:  ... they are basing their sightings on misstated evidence...

ABRAMS:  Yes...

JOHNSON:  ... coming from Scott Peterson through the media.

ABRAMS:  I think that‘s a good point.  John Burris, I think at its most basic level what the prosecutors say this shows is another lie by Scott Peterson.  They are convinced Laci was already dead when Scott Peterson leaves the house.  And he‘s saying I know she was wearing certain jewelry.  I know she was wearing these black pants.  I know she was wearing a lighter top.  And yet, they are saying look those are not the clothes she was found in.  She was found in the same clothes she was wearing the night before.  Why would he lie about that?

JOHN BURRIS, CRIMINAL DEFENSE ATTORNEY:  Well certainly it‘s important in order to deconstruct and prove that he is lying, that certainly has to be done because that is really the essence of their case is that he had all of these alibis and that people who have not done anything under the circumstances would not have had so many inconsistent statements.  That‘s clearly their argument.  But I think that Dean makes an excellent point here as to whether or not they should have hung so closely in putting on the clothing description now.

ABRAMS:  Yes.

BURRIS:  On the other hand, I think they probably needed to do that because this is a case, I think as the judge has said, where you have to construct it piece by piece by piece. 

ABRAMS:  Yes, but...

BURRIS:  Unfortunately when you do that, the other side is in a position to offer—throw cold water on that very early. 

ABRAMS:  Yes...

BURRIS:  But you still have to do it. 

ABRAMS:  Judge Snyder...

(CROSSTALK)

ABRAMS:  ... don‘t you agree that this maybe wasn‘t the strongest stuff to start with?

CROCKER SNYDER:  Well it may not have been, but that‘s not necessarily such a great weakness.  They outline in great detail all of the inconsistencies in their opening and every piece of evidence.  And if they build to a stronger case, you know we can all sit here and say well they could have done it this way, they could have done it another way, but I‘m sure they‘ve thought this out very carefully and they do have a competent prosecutor.  So there‘s probably a good point behind it.

BURRIS:  Although I think the prosecutors sometimes...

JOHNSON:  Actually...

BURRIS:  ... my own experience do want to put things on in chronological order. 

ABRAMS:  Yes.

BURRIS:  Even though that is not necessarily the best way to go, particularly starting out in a very long case. 

ABRAMS:  Dean, very quickly, go ahead. 

JOHNSON:  Actually Dan, this is exactly the problem, is people who are here at the courthouse are saying that this case wasn‘t well thought out by the prosecution.  They did not present a coherent theory of the case in their opening statement and now they are puzzling and boring everybody with these witnesses.  They have a lot stronger evidence that they could have led with, and, believe me in this case they need it.  They need to wrap the story line right now around all of this evidence and they are just not doing it.

ABRAMS:  Yes, I think they should...

JOHNSON:  The clothing is important...

ABRAMS:  I think they should have...

JOHNSON:  ... important rebuttal evidence.

ABRAMS:  I think they should have started and finished with where the bodies were found. 

BURRIS:  Right.

ABRAMS:  Start the prosecutions‘ case...

JOHNSON:  Exactly...

ABRAMS:  ... finish the prosecution‘s case with where those bodies were found.  It is the most important point, 90 miles away from their home, two miles from where Scott says he went fishing.  Judge Snyder is shaking her head...

CROCKER SNYDER:  Well only because...

ABRAMS:  Because we are second guessing...

CROCKER SNYDER:  ... I think you‘re right dramatically, But I do think the portrait of the story from beginning to end is extremely important in a very long case because otherwise a jury doesn‘t always get it.

ABRAMS:  Yes.

BURRIS:  You know what...

ABRAMS:  All right, I‘ve got to...

(CROSSTALK)

ABRAMS:  We‘re going to come back in a minute.  We‘ll all continue this conversation in a minute.

When we come back we‘ll also talk about Mark Geragos‘ claim that Laci‘s baby was born before she was killed. 

For an interactive timeline of the events in the Scott Peterson trial, log on to abramsreport.msnbc.com. 

And coming up, the FBI using lie detectors to try to find out if someone at the Pentagon leaked key government secrets.  But if they‘re not reliable enough to be introduced in court, can the FBI really trust them for something this serious?

And Larry David‘s hit TV show comes to the aid of a man wrongly accused of murder.  We‘ll hear from him and his lawyer. 

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, can Scott Peterson‘s defense prove that Laci‘s baby was born alive?  It is at the heart of the defense case.

(COMMERCIAL BREAK)

ABRAMS:  We are back and we are talking about day one, the first full day of testimony in the trial of Scott Peterson.  In opening statements yesterday, his attorney Mark Geragos said he‘s going to prove that the baby Laci was pregnant with was born alive.  Now prosecutors believe the fetus was expelled in the water after Laci died.  The defense says Laci was seven and a half months pregnant when she disappeared.  They baby, they say, was more developed than that. 

So the defense argues, someone other than Scott must have killed her because he was being watched from the day after she disappeared.  The defense also expected to argue that plastic tape found looped around the baby‘s neck was placed on the baby, not just a piece of debris that became caught around his neck accidentally, as prosecutors argue. 

So let‘s bring back our legal team to talk about how important an issue this is going to be.  John Burris, is this for the defense, do you think, the heart of the case, to say you know the science proves our case and as a result you can forget about everything else you know about this case? 

BURRIS:  Well you hate to put all your eggs in one basket.  But I will tell you, if they have competent people to testify as to the age of the baby that‘s greater than what was anticipated, and they have a pathologist and I know they‘re going to have Henry Lee, if these very bright people come and testify, and testify in a way that suggests that the baby was a lot older, I think that the prosecution has a very difficult task to overcome that given everything else that‘s there.  Because they will have the most—they have the hardest evidence—and I haven‘t seen anything from the prosecution yet to suggest that they can meet that particular challenge. 

ABRAMS:  Well they will have their own experts...

BURRIS:  Well certainly they will.  But to the...

ABRAMS:  Yes.

BURRIS:  ... extent that that evidence comes in, I‘m going to tell you if it comes in powerfully as he‘s anticipated, at least it gives a juror or more enough to think about and talk about, and it will go to the heart of the defense. 

ABRAMS:  And Judge Snyder, it puts the prosecutors on the defensive in a way, doesn‘t it? 

CROCKER SNYDER:  Well it‘s certainly not going to help them.  But you know just like in insanity defense cases, it‘s going to become a battle of the experts.  I think Geragos‘ hope is he produces a credible expert and then he can argue reasonable doubt and a key point to the jury.  But I would assume that the prosecution, hopefully, has prepared its experts well and has spoken to experts who are going to support their theory. 

(CROSSTALK)

ABRAMS:  The advantage Geragos has with this, Leslie, isn‘t it that he can basically say, look, if you believe my expert on this one—and he will have a number of issues...

UNIDENTIFIED MALE:  Right.

ABRAMS:  ... where he believes it‘s sort of a make or break, if you believe my expert on this one, you can forget about everything else that you have heard in the case because it‘s physically impossible that it could have happened.  That‘s a good position for a defense attorney to be in, isn‘t it?

CROCKER SNYDER:  Well it certainly would be a powerful point for him and he would be able to say that a lot of the rest of the prosecution‘s case would crumble.  But you‘re assuming he‘s going to be able to get this point across convincingly. 

ABRAMS:  No...

(CROSSTALK)

ABRAMS:  ... I‘m not.  I‘m saying if he is, yes.

BURRIS:  Yes.  And one additional point on that, it would allow for him to raise and have some credibility on the fact that the police focused in on Scott and didn‘t follow up on some of the leads.  Because if you have that as an issue, then you can have a basis to say, look, if you had followed up on these leads, you might have been able to focus more closely...

(CROSSTALK)

CROCKER SNYDER:  But you know what?  I think we should get back to—let‘s remember Scott‘s behavior, right, the defendant‘s behavior. 

(CROSSTALK)

CROCKER SNYDER:  I don‘t want to call him Scott.  I mean here‘s a guy who has lied so many times and told so many different stories that I think we‘re—you know you can focus in on this one point and it‘s an important point, but I think his own conduct is what is ultimately going to convict him. 

(CROSSTALK)

BURRIS:  I disagree with that...

(CROSSTALK)

ABRAMS:  Let me bring in Dean Johnson.  Dean...

(CROSSTALK)

ABRAMS:  Dean—hang on a second.  Isn‘t this why...

JOHNSON:  All right.

ABRAMS:  ... it‘s so important for the prosecutors to keep bringing it back, I think, to where the bodies were found and, as Leslie points out also, to his statements.  Because I would think the prosecutors always want in the back of these jurors‘ minds, even if they are evaluating scientific evidence, to say to themselves, yes, OK, it‘s a battle of the experts, and, you know, I don‘t know which, you know they both seem to be saying one thing and the other.  But, boy, how did those bodies end up right where Scott Peterson said he went fishing? 

(CROSSTALK)

JOHNSON:  I think the conduct evidence eventually is not going to go very far.  Geragos has got all sorts of explanations.  The whole pattern of lies seems to be misstatements about immaterial facts like whether Martha Stewart said the word meringue, what clothes Laci Peterson was wearing.  I mean big deal, so she changed her clothes. 

What it‘s really going to come down to, to tell you the truth is expert testimony.  And the testimony about where the bodies were found is even better than we know.  Because Distaso alluded to this, though he did not articulate it well, they‘re going to talk about the flow of tides in San Francisco Bay.  And they are going to point out with their expert testimony, these two bodies were found at two separate places.  The tides flowed back from those two separate spots.  They converge at one spot and guess where it is?  It‘s exactly where Mark—or Scott Peterson was fishing. 

(CROSSTALK)

JOHNSON:  So there‘s one person on earth that we know from the evidence could have dumped those bodies at that very particular spot and that‘s Scott.  You‘re right. 

ABRAMS:  I‘ve got to wrap...

JOHNSON:  That‘s the most critical evidence...

ABRAMS:  Got to wrap it up.  John Burris, Judge Snyder, Dean Johnson, thanks a lot.  Sorry about that...

CROCKER SNYDER:  Good to see you.  That‘s all right.

JOHNSON:  Thanks Dan.

ABRAMS:  Coming up...

BURRIS:  Thank you Dan.

ABRAMS:  ... the FBI turns to lie detector tests to find out who leaked top-secret information about Iran.  But if lie detectors aren‘t good enough for the courts, how effective will they be in tracking down the leak? 

(COMMERCIAL BREAK)

ABRAMS:  We are back.  The CIA and FBI are investigating who leaked top-secret information and this is what it was—that the U.S. had broken Iran‘s intelligence code and then told Iraqi National Congress leader Ahmed Chalabi.  Chalabi then allegedly fed the news to Tehran and Chalabi denies the charges.  He was once considered a top Iraqi dissident and exile and friend of the U.S., featured prominently near First Lady Laura Bush at the State of the Union last January.

But questions about the accuracy of the Iraqi National Congress‘ intelligence information and Chalabi‘s increasingly hostile relationship with transitional forces in Iraq led the Pentagon to cut off the group last month.  Now, government officials say, Chalabi told Iran‘s top spy in Iraq that a drunk American official told him the U.S. had broken the Iranian intelligence code, which brings us back to the investigation. 

The government now conducting lie detector tests with a few Pentagon staff members who knew about the code break.  But if these tests are not reliable enough for a courtroom, are they reliable enough for something as serious as this? 

Joining us now, polygraph expert and examiner, Daniel Sosnowski. 

Thanks very much for coming on the program. 

DANIEL SOSNOWSKI, POLYGRAPH EXPERT:  Thanks for having me. 

ABRAMS:  All right.  So, you know they don‘t allow these in court.  This is really serious business here.  We are talking about who effectively leaked information to a member of the axis of evil.  Are lie detector tests reliable enough to answer that question? 

SOSNOWSKI:  Well I definitely believe they are because it‘s kind of almost a misconception where polygraph tests are not reliable and introduced in the court.  There are many places across the United States that polygraph is used in court, even sometimes over the objection of opposing counsel. 

ABRAMS:  But it‘s rare.

SOSNOWSKI:  Well, I think it‘s more prevalent than it used to be.  And the rules of federal evidence changed several years ago, and many of the experts are now saying and allowing polygraph to be introduced in court under (UNINTELLIGIBLE) hearing if the criminal defense attorney asks for it. 

ABRAMS:  You mean basically, if both sides agree to it? 

SOSNOWSKI:  Well, there‘s two situations.  There‘s a stipulated agreement...

ABRAMS:  Yes.

SOSNOWSKI:  ... where again both sides do agree to it.  But, again, the federal rules of evidence changed roughly eight, nine years ago, and in a situation where either a criminal defense attorney or the prosecution...

ABRAMS:  Yes.

SOSNOWSKI:  ... can ask for a (UNINTELLIGIBLE) hearing...

ABRAMS:  ... they can get a hearing...

SOSNOWSKI:  ... polygraph.

ABRAMS:  ... they can get a hearing, but it‘s still very rare if the judge ultimately admits it as a valid science.  I‘m not trying to denigrate the tests, but the fact still remains that it‘s still rare that it‘s accepted in U.S. courtrooms and yet what you‘re saying is, look, basically, you believe it should be. 

SOSNOWSKI:  Well, I believe in certain circumstances, I don‘t believe

·         I really wouldn‘t want to see a blanket statement that polygraphs are going to be used in a court every single time... 

ABRAMS:  What‘s the problem with polygraphs? 

SOSNOWSKI:  ... because of error.  Well, it all goes back to, again, the techniques that are used.  We have examiners who don‘t follow the rules, just like anything else.  We‘re going to have bad teachers, bad doctors, bad whatever.  We have to follow the rules of scientific evidence.  The polygraph was validated and researched certain ways.  Once you start getting away from that, that‘s when polygraphs start getting to be problems. 

ABRAMS:  Yes or no...

SOSNOWSKI:  Now on the other hand...

ABRAMS:  I‘m sorry.  Go ahead.  Finish...

SOSNOWSKI:  Well on the other hand, a lot of times why a polygraph isn‘t used in the court is a situation if the jury hears it, they almost become overwhelmed in that situation and want to believe too much.  The polygraph is an investigative tool. 

ABRAMS:  Yes and you think...

SOSNOWSKI:  It‘s one piece of evidence.

ABRAMS:  ... yes and you think this really may help get to the bottom of who leaked this information.  All right.  Mr. Sosnowski, thanks a lot for coming on the program. 

SOSNOWSKI:  Thank you. 

ABRAMS:  When we come back, “Ladies‘ Night”.  Bars use them to boost business and women use them for free drinks.  But now a New Jersey agency rules that they discriminate against men. 

And we‘ll talk to the man wrongly accused of murder, who got out of prison thanks to Larry David‘s hit show “Curb Your Enthusiasm.”  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up—it‘s a simple concept.  You invite women to bars.  Men are going to follow.  But now in New Jersey it‘s been declared unconstitutional.  First the headlines. 

(NEWS BREAK)

(MUSIC)

ABRAMS:  “Ladies‘ Night”, it‘s a concept that makes entirely good business sense.  You get lots of women into a bar and men are going to follow.  So you offer women free admission, discounted drinks.  The men pay full price.  The bar does good business.  But is it also a violation of civil rights?  A New Jersey state agency says yes. 

We will debate it in a moment, but first, NBC‘s Natalie Morales has more on the story. 

(BEGIN VIDEOTAPE)

(MUSIC)

NATALIE MORALES, NBC NEWS CORRESPONDENT (voice-over):  It‘s a culture phenomenon, promotional events at bars where ladies get in free and pay less for drinks. 

UNIDENTIFIED MALE:  Bar‘s open...

MORALES:  The theory, where women go, men will follow. 

UNIDENTIFIED MALE:  Guys just go up to girls and say, would you buy me a beer and get one for yourself, which is the way for them to meet. 

MORALES:  But some see this glass as half empty.  And a ruling in New Jersey calls these promotions illegal and discriminatory against men, which could mean last call for an event that many hold dear. 

CHRIS VEDPA-PAPALEO, NJ DIVISION OF CIVIL RIGHTS:  I don‘t think it‘s right.  I think it‘s a good opportunity for them to meet single women or vice versa. 

MORALES:  The decision stems from a complaint by a male patron against the Coastline Bar after he had to pay $5 for a drink, while women enjoyed a hefty discount. 

CHRIS MOURTOS, OWNER, COASTLINE BAR AND GRILL:  It‘s a promotional tool that we use in order to attract people into our business on a night that normally would be practically dead. 

UNIDENTIFIED MALE:  It may be a promotional gimmick.  That is not how one determines if something is discriminatory or not.  It‘s discrimination does occur when a bar or restaurant has a ladies‘ only night. 

MORALES:  But others, including the governor of New Jersey, call this ruling nothing but bureaucratic nonsense. 

UNIDENTIFIED MALE:  Discriminated against...

UNIDENTIFIED FEMALE:  Sweetie, apparently, he just doesn‘t understand the whole concept of it. 

UNIDENTIFIED MALE:  Well apparently. 

UNIDENTIFIED MALE:  What‘s next?  Are folks going to dress up as girls to get in to save $5?

(MUSIC)

(END VIDEOTAPE)

ABRAMS:  Joining me now, George Washington University Law professor John Banzhaf who has long been taking on the bars that discriminate on the basis of sex and defense attorney Mercedes Colwin.

All right.  Professor, let me just—I think I agree with you on this one, but I want to ask one question.  Insurance companies, all right, they have higher premiums for young men than young women.  Would you also challenge those as well? 

JOHN BANZHAF, GEORGE WASHINGTON U. LAW SCHOOL:  No, because under the statutes, they are permitted.  But what New Jersey has done is joined approximately a dozen other jurisdictions, decisions going back at least 20 years holding that it is illegal and sex discrimination to charge men more than women for the same goods and services just as many jurisdictions are now saying it is illegal to charge women more than men for goods and services like haircuts and shirts.  You remember my law students originated that concept. 

ABRAMS:  Yes, you challenged the dry cleaners...

BANZHAF:  And we win.

ABRAMS:  Yes.

BANZHAF:  We keep winning these cases because they are clear and simple.  It doesn‘t depend on whose ox is being gored; you cannot discriminate on the basis of gender anymore than you can on the basis of race or religion.  It‘s simple. 

ABRAMS:  Well, as you know, I mean gender is not considered quite as protected a class...

BANZHAF:  Under the statute it is. 

ABRAMS:  OK, but...

BANZHAF:  Under the Constitution it is not.  Under the statute, it is exactly identical Dan and that‘s the attitude that occurs when people tolerate discrimination based upon gender where we would never tolerate it on race.  You don‘t have Jewish night.  You don‘t have black night or African American night.  That‘s the whole problem. 

ABRAMS:  All right and very quickly, the reason you‘re OK with the insurance companies is because, why? 

BANZHAF:  I didn‘t say I‘m OK with it.  You asked whether it is legal. 

I‘m telling you that under most statutes, it is not prohibitive. 

ABRAMS:  OK.  Mercedes Colwin, you know, I‘ve got to tell you, as a constitutional—I understand it as a policy matter why they do it.  If I owned a bar, I would do the same thing.  But as a constitutional matter, it does seem, and I‘ve been talking about this for a long time, it does seem that this kind of policy is pure gender discrimination. 

MERCEDES COLWIN, DEFENSE ATTORNEY:  But you know you have to look at it—I look at it this way.  I think most people do as well.  There are realities that you have to infuse when applying the law.  The realities are historically women have not been flocking to these establishments.  So the owners thought of ideas to bring the women in.  And as you said during the introduction of this piece, you said women go, men will follow.  And I think we have to look at the genesis of the laws before we go back.  L.B.  Johnson signed these laws into effect, the federal laws into effect, the state laws they followed thereafter, in order to react to the KKK activities in the 1960‘s.  So the spirit of the law is to redress harms.  What harm are we talking about here? 

BANZHAF:  Well let me read you the harm...

(CROSSTALK)

BANZHAF:  Let me read you what the National Association for Women said the harm is.  They said it results in a loss of dignity, reinforces harmful stereotypes and pushes women as sex objects.  We don‘t have to go back to the 1960‘s to recognize there‘s harm.  A bar owner can‘t decide, hey, I‘d like to attract more white guys into my bar...

COLWIN:  But that‘s entirely different...

(CROSSTALK)

COLWIN:  You‘re introducing race again.  And if you look back at the genesis of gender discrimination, it was introduced by a Dixiecrat, by mistake.  It wasn‘t even the focus of the original law. 

BANZHAF:  We‘re talking...

(CROSSTALK)

BANZHAF:  ... state law here...

COLWIN:  But we‘re looking at...

BANZHAF:  We‘re not talking federal law.  Come on.  Let‘s wake up. 

(CROSSTALK)

BANZHAF:  You‘re talking state law.  It was all...

ABRAMS:  All right.

BANZHAF:  ... enacted at the same time. 

COLWIN:  John...

(CROSSTALK)

ABRAMS:  Let her finish. 

COLWIN:  ... I am entirely...

ABRAMS:  All right, Professor...

COLWIN:  ... awake...

ABRAMS:  Go ahead Mercedes, state law.  Go ahead.

COLWIN:  ... and I‘m going to argue the point the fact of the matter is when it comes to these state laws, you have to infuse the realities of the situation, you have to make certain that when it‘s applied it makes logical sense.  These agencies, the agencies nationwide that promulgate and enforce these laws have a limited fund.  And what Governor McGreevey has said and many others have said, you take a look at this issue and make sure it makes fiscal sense.  You are fiduciaries to the taxpayers.  Make sure that when you go and you enforce these laws, you do it intelligently and understand...

(CROSSTALK)

ABRAMS:  Hang on a second Professor...

(CROSSTALK)

ABRAMS:  Hang on a second. 

BANZHAF:  Twelve...

ABRAMS:  Hang on a second, Professor.

BANZHAF:  Twelve different states...

ABRAMS:  Hang on.  Mercedes, what you‘re saying is...

BANZHAF:  ... have all ruled the same way.

ABRAMS:  Hang on.  What you‘re saying, Mercedes, is you‘re not saying that Professor Banzhaf is wrong.  What you‘re saying if you‘re going to start utilizing state dollars to enforce certain laws, this is not one of the ones you should enforce? 

COLWIN:  I think that in theory, if you look at this as it is, it make

·         it doesn‘t—I can‘t opine whether it violates the law or not.  I don‘t think on its—on its face it looks like it does, but you have to infuse some economic realities.  And certainly—and that‘s what Governor McGreevey is saying—certainly this doesn‘t make fiscal sense for this agency to focus in on this issue. 

ABRAMS:  I don‘t know...

COLWIN:  There are other harms...

BANZHAF:  Well the government says one thing, the attorney general says another thing.  Courts in 12 different states, not agencies, but courts, have looked at all of these issues since 1982. 

ABRAMS:  Yes.

BANZHAF:  The president has been steady. 

COLWIN:  There‘s other...

BANZHAF:  These are illegal, whether you discriminate in favor of women or against women on price. 

ABRAMS:  All right.

COLWIN:  There are 40 states...

BANZHAF:  That‘s the bottom line...

COLWIN:  ... that don‘t agree with you, John. 

BANZHAF:  We keep winning—well you keep losing.  I keep winning my cases.  What do you want to do? 

ABRAMS:  All right.  You know what?  I‘ve got to tell you—Professor Banzhaf and I, you know I would take him on these—he files—helps with all the fast food lawsuits...

BANZHAF:  Yes, but I win my cases. 

ABRAMS:  No...

BANZHAF:  That‘s the bottom line...

ABRAMS:  You don‘t win the fast food cases...

BANZHAF:  We‘ve won five of them...

ABRAMS:  You and I—no, no...

BANZHAF:  Five of those cases...

ABRAMS:  You know that is so misleading. 

BANZHAF:  ... are successful.

ABRAMS:  You say that every time you‘re on the show...

BANZHAF:  And I will back it up...

ABRAMS:  No, you know...

BANZHAF:  ... if you ever have me on the show again...

ABRAMS:  ... that for example when you won the McDonald‘s case...

COLWIN:  But I think...

ABRAMS:  Wait a sec.  Hang on...

(CROSSTALK)

ABRAMS:  Professor...

BANZHAF:  And we‘ve won over 100...

ABRAMS:  No...

BANZHAF:  ... sex discrimination...

COLWIN:  Dan...

BANZHAF:  ... cases. 

(CROSSTALK)

BANZHAF:  How many has Mercedes won? 

(CROSSTALK)

COLWIN:  In the final analysis...

BANZHAF:  Mercedes, how many cases have you won...

ABRAMS:  All right.  I‘m not going to get into personal...

BANZHAF:  All right.  I‘ve won over 100...

ABRAMS:  But Professor...

COLWIN:  I‘m glad for you Professor. 

(CROSSTALK)

ABRAMS:  ... yes I know.  Look, but you overstate your victories and you know you do, but I still love you.  I think you‘re a great guest and you know what?  I agree with you on this. 

Professor Banzhaf and Mercedes Colwin, thanks a lot.

COLWIN:  (UNINTELLIGIBLE)

ABRAMS:  Coming up—he spent five months in prison for a murder he did not commit.  But thanks to Larry David and the show “Curb Your Enthusiasm” he‘s a free man tonight.  We will talk with him and his lawyer when we come back.

(COMMERCIAL BREAK)

ABRAMS:  We are back.  Larry David, the creator of “Seinfeld” and star of the HBO series “Curb Your Enthusiasm” is often seen as the frustrated man‘s hero.  The one who highlights all the quirks of our sometimes puzzling society.  But in an amazing story that sounds more like an episode of the sitcom than reality, Larry David, believe it or not, turned out to be the one person able to save an apparently innocent man from death row. 

Juan Catalan was mistakenly charged with murdering a young woman.  A witness placed Catalan at the scene of the shooting last May.  Catalan gave police his alibi, said he was at a Dodger‘s game with his daughter at the time of the shooting.  He even had the ticket stubs to prove it.  Prosecutors didn‘t buy the story. 

That was until Catalan and his attorney learned that comedian Larry David was filming an episode of the HBO show “Curb Your Enthusiasm” at the stadium the same day.  His lawyer got in touch with HBO, checked the tape, sure enough, there he was in one of the outtakes. 

Juan Catalan and his attorney Todd Melnik join me now.  Thanks a lot for coming on the program.  Appreciate it. 

UNIDENTIFIED MALE:  Sure.

UNIDENTIFIED MALE:  Good evening, Dan. 

ABRAMS:  All right.  Mr. Catalan, let me start with you.  You remember seeing them filming at the game, correct? 

JUAN CATALAN, FALSELY ACCUSED OF MURDER:  Yes, Dan.  We were there enjoying the game on May 12, 2003, and I noticed that they were filming some kind of video right on our aisle. 

ABRAMS:  When did you bring that to the attention of your lawyer?  I mean did you say, look, they obviously don‘t believe me that I was at the Dodger‘s game.  Hey, let‘s go check it.  Did you say that immediately or did you think of it later? 

CATALAN:  Well it came to me a few days later after I was put in jail.  I informed my attorney, Todd Melnik, that I was at a Dodger‘s game that night and I thought I was caught on video.  I was hoping to God that I was and Todd took it from there, after I gave him all of the information. 

ABRAMS:  But you still served something like five months, correct? 

CATALAN:  Right, I did, five and a half months in the L.A. County jail. 

ABRAMS:  And Todd, you got this information from him and you‘re probably thinking (UNINTELLIGIBLE) you know what are the chances, right? 

TODD MELNIK, JUAN CATALAN‘S ATTORNEY:  Well I knew that there was some possibility that that would be correct.  I mean I had no reason to disbelieve Juan.  I did believe that he was innocent. 

ABRAMS:  I don‘t mean that.  I mean the chances that actually they would have the, you know, the actual video that would show him at the game. 

MELNIK:  Well, I looked through—there was about an hour tape to look through, about seven different cassettes.  And I got through about the first 20 minutes of it and I was a little disheartened that I didn‘t see him and all of a sudden, there he was.  And I, you know, told the tape guy, hey, hey, hey, hold it there.  There he is.  There he is and roll that tape back and sure enough, there he was. 

ABRAMS:  Did Larry David help you out?  What was his response when you said hey look, we want to go through some of the old tapes? 

MELNIK:  He was fine with it.  He was like some guy who you know murdered somebody thinks he‘s you know on my show, fine, go ahead, take a look.  He was very nonchalant about it and said yes, go ahead, no problem.  And then as it turned out, you know he was on there and he was taking aback and he kind of chagrined and he said well, you know maybe I will write this into an episode later. 

(LAUGHTER)

ABRAMS:  And you also had to—you also—this wasn‘t it, though.  I mean you found this and then you also had to go back and trace cell phone records, et cetera, right? 

MELNIK:  Yes, and it was a little complicated.  What happened was that you know the prosecutors would not believed that if he was just on that videotape, he was only there on that videotape for the time code until 9:09 and I still had to account for about another hour and 20 minutes of his whereabouts.  So what I did was I got his cell phone records by using the court power, I got a special court order to make Nextel give us their engineering records for their cell towers. 

And I was able to prove that Juan had used his cell phone at 10:11 at night within a—with the cell tower that was one mile within Dodger Stadium.  So that, coupled with the phone records of another person that was near the victim when she was shot, showed that the—because it‘s kind of complicated, but there were four witnesses that saw the shooter driving by several times at the same time Juan got an incoming call from his girlfriend. 

ABRAMS:  Oh, got it...

MELNIK:  So that was the key you know that got him out. 

ABRAMS:  Juan, were you a fan of the show before all of this happened? 

CATALAN:  No, I had never seen “Curb Your Enthusiasm.”

ABRAMS:  So how did you know what show, did you recognize Larry David or did you just say somebody was filming?

CATALAN:  No, I didn‘t.  I recognized “Super Dave Osborne”...

(LAUGHTER)

CATALAN:  ... and I told Todd about it. 

ABRAMS:  There he is, yes. 

CATALAN:  And I mentioned it to Todd and Todd was able to locate who and what exactly was being filmed at Dodger Stadium. 

ABRAMS:  Wow, what a story.  All right.  Juan Catalan, thanks very much for taking the time.  Todd Melnik, good to see you again. 

(CROSSTALK)

MELNIK:  Hey, you too Dan. 

ABRAMS:  Thanks for coming on the show. 

MELNIK:  Take care.

ABRAMS:  Coming up—after a couple of days off, we will get to your e-mails.  And my “Closing Argument”, why prosecutors are often at a disadvantage in high profile criminal trials like that one. 

A programming note, this weekend MSNBC‘s special coverage of the 60th anniversary of D-Day.  Keith Olbermann will take a look at five things you didn‘t know possibly about that historic day, and I‘ll take a look at the intelligence the allies used to pull it off on a special edition of THE ABRAMS REPORT Saturday at 6:00 p.m. Eastern.

Log on to dday.msnbc.com for a special interactive look at the Normandy D-Day...

(COMMERCIAL BREAK)

ABRAMS:  Coming up, your e-mails about that “Playboy” pinup forced to give up custody of her daughters to the man who was cheating on his wife when the children were conceived.  And my “Closing Argument”—why it‘s not so easy to be a prosecutor in a high profile case.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why it‘s not always the big bad government that has the edge in criminal trials.  I always hear defense attorneys complaining about the power and endless resources of the prosecution and the little defense team is always at a significant disadvantage.  Now often that is true, particularly in cases where defendants are assigned public defenders with limited budgets.  And it‘s only the prosecution that can conduct most of the tests on evidence, for example, in those kinds of cases.  But it‘s also true that when the rich or infamous are on trial, it is often an entirely different ballgame.  The Scott Peterson case, just another example. 

Prosecutor Rick Distaso and David Harris are hard working public servants, adequate lawyers.  Distaso gave an adequate opening statement against Peterson laying out a chronology of Peterson‘s suspicious activity in the hours surrounding his wife‘s disappearance.  But when you compare it to Peterson‘s attorney, Mark Geragos, the prosecution doesn‘t seem all that adequate anymore.  Geragos weaved together a far more compelling story.  Not because his case is better, but because he‘s just a better lawyer who has devoted significant resources to this case.  In the O.J. Simpson case, the prosecutors clearly outfoxed by a well-funded defense team. 

Those who watched the manslaughter trial of former NBA star Jayson Williams made similar comments about the lawyers there.  And it may turn out to be true in the Michael Jackson and Kobe Bryant cases as well.  Defendants have built in advantages in the system.  The burden of proof is on the prosecutors.  Judges tell jurors if something can be interpreted in two different ways, you interpret it in the way most favorable to the defense.  Generally it‘s only the defense that can appeal a verdict that they don‘t like.  Prosecutors can‘t.  So when the attorneys for the defense are also better, sometimes even better funded, it‘s easy to see why the defendants often have an unfair advantage.  It‘s the best system in the world, but it‘s particularly good for those with a lot of money. 

I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  Yesterday, a family court judge ordered Bridget Marks, a former “Playboy” model to turn over custody of her 4-year-old twins to their biological father.  A married man she had an affair with who she says abandoned her when she was four months pregnant.  Marks even accused him of sexually abusing the girls, but the judge believed she made up the allegations to smear the father and said to leave the children in her custody would expose them to further emotional damage. 

Timothy Hughes from Nashville, Tennessee. “If she did lie, not only should she lose her rights as custodial parent, in my opinion she should be charged with perjury and prosecuted to the fullest extent of the law.”

Many of you upset that she allowed the children to be taken in front of the cameras.  From Albany, New York, Tim Blaney.  “No responsible parent would make a public spectacle of their children to prove a point.  Parents are supposed to protect their children at all times.”

And Kenna Nauenburg in Riverside, California.  “This mother claims that her twins would abused by their father, and yet she dragged them in front of the waiting photographers and she made sure that they captured her histrionics.”

But most of you who wrote in were on her side.  From Chandler, Arizona, Elizabeth Allen.  “Even if the mother made up the allegations of sexual abuse, which it doesn‘t sound like she did, how can this court‘s decision be in the best interest of the children?  They are removed from the only mother they have ever known, given to a father who will raise them with his wife, whom he cheated on when these girls were conceived.”

Susan C. from Pennsylvania.  “To say that he was not an unfit father just because he had an affair may seem reasonable to some.  However, what about the fact that he abandoned a pregnant woman and his children proclaims to love?”

Mayra Garcia in El Cajon, California.  “Clearly this custody battle is all about money the father has.  It‘s very disturbing to think that many women who are doing drugs and abusing their children are keeping their parental rights.  Yet, this woman who is not doing drugs, is not abusing their children, and there‘s no sign whatsoever of any kind of neglect is losing her parental rights.”

To the Scott Peterson case.  Yesterday Mark Geragos argued that science proves that Peterson could not have killed his wife.  That the tape entwined, wrapped about the baby‘s neck could only have been placed there after the boy was born or removed from Laci‘s body.  Many of you not buying it. 

Teri Forsher from California.  “Having lived in the Bay area my entire life, I can tell you a free floating object could easily be tangled or twisted in fishing line or other discarded debris within the bay simply by the motion of not only the current, but action of a propeller.”

Candace Ballard, “There have been times that I have done a load of wash and by accident it has become caught in the spin cycle and it is so wound up it‘s almost impossible to unwind.  It is in knots and wound up.”

Finally, Tim Coleman in South Carolina writes about the Kobe Bryant case and I feel the need to warn you, his e-mail gets a little graphic.

“Dan, why do you always feel the need to warn the viewers about your use of the words semen, sperm or the correct acceptable names of body parts?  Maybe it‘s you, Dan, that finds these words titillating, kind of like the “Beavis and Butthead” cartoon characters.”  (UNINTELLIGIBLE) what are you talking about Tim? 

Your e-mails, abramsreport@msnbc.com.  Please include your name and where you are writing from and we will go through them at the end of every show, almost...

Coming up next, “HARDBALL” with Chris Matthews.  Chris will be talking with former CIA director James Woolsey about George Tenet‘s decision to step down as America‘s top spy. 

Thanks for watching.  See you tomorrow.  Don‘t forget Saturday, our special coverage of D-Day.  We‘ll be here at 6:00 p.m. not just tomorrow, but we‘ll be back on Saturday as well.

See you.

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.

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