updated 6/22/2004 10:22:41 AM ET 2004-06-22T14:22:41

Guests:  Dean Johnson, Lisa Pinto, Mercedes Colwin, Norm Early, Jeralyn Merritt, Mark Jurgensmeyer

DAN ABRAMS, HOST:  Coming up, the judge in the Scott Peterson case rules on whether to dismiss a juror for misconduct.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  And Laci Peterson‘s best friend takes the stand to testify about the chaotic scene at the Peterson home after Laci went missing.  Why did Scott Peterson spend so much time vacuuming?

Plus, Kobe Bryant back in court as lawyers on both sides argue over what it means to be raped.

UNIDENTIFIED FEMALE:  I think I‘ll always be the girl with the leash.

ABRAMS:  She‘s become the symbol of the worst abuses in the Iraq prison scandal.  Now Lynndie England is speaking out.

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone and we are coming to you from sunny California all week. 

First up on the docket tonight, day 12 in the Scott Peterson case and testimony from three of Laci Peterson‘s closest friends. 

Question:  What was Scott Peterson doing vacuuming the day after Laci was reported missing?  One of her friends testified Peterson was behaving oddly at his home the day after his wife was reported missing.  Prosecutors believe he may have killed Laci in the house, put the clothes he was wearing at the time in the laundry room‘s washing machine, and then, cleaned up the scene of the crime.

Another friend said Peterson would not allow any of his wedding pictures or other photos of he and Laci together given to the media or even put up on the walls of the volunteer center.  Why not?

But the testimony today that caused defense attorney Mark Geragos to jump to his feet and ask for an immediate recess came from Laci‘s yoga instructor.

For that let‘s go to the courthouse and MSNBC‘s Jennifer London.  Hi Jennifer.

JENNIFER LONDON, MSNBC CORRESPONDENT:  Hi Dan.  Was Laci Peterson fit enough to take the family dog for a walk on Christmas Eve?  Not according to the prosecution and not according to Laci‘s yoga instructor, Debra Wolski.

She testified today that on 12/20, four days before Laci went missing, Laci came to a yoga class.  Laci said that she was tired.  Laci complained of feeling uncomfortable, saying that she was in a lot of pain.  Wolski telling the jury that Laci‘s feet were incredibly swollen and she was having a hard time walking. 

Now the part that had Mark Geragos jumping out of his seat was when Wolski testified that Laci told her that McKenzie (ph), that would be the family dog, must think I‘m mad at him because I‘m not taking him for walks anymore.  Mark Geragos saying this court must take an immediate recess, which it did.

Now the reason this testimony may be important to the prosecution, the prosecution says that Scott‘s claim that while he was fishing on Christmas Eve and Laci was going to walk the family dog is simply untrue because she wasn‘t fit enough to go for a walk anymore.

Now under cross-examination, Mark Geragos did question Wolski about some jewelry that Laci inherited.  Wolski saying that Laci did come to a yoga class wearing a lot of diamonds, which is very unusual.  She did ask Laci about that and Laci said well, I‘m having them appraised later today and I don‘t want to leave them in the car.

Now, Dan, Wolski is off the stand for the day and the jury has been excused.  Both sides meeting behind closed doors with the lead detective in the case, Al Brocchini.

ABRAMS:  And Jennifer London, he is certainly going to be a key witness.  Again, we‘re talking about like Laci walking around, was she walking the dog, bottom line question is, is was she alive?  The prosecutors say look she was already dead.  She wasn‘t walking any dogs.  And the defense attorneys are saying when he‘s going fishing, she‘s alive and well, walking the dog.  And so the question is, if she couldn‘t be walking the dog, wouldn‘t be walking the dog, then that certainly supports the prosecution‘s theory.

All right, so Debbie Wolski‘s, the key to the prosecution‘s case—today Peterson‘s behavior and alleged lies.  Remember he told police that the last time he saw his wife, she was getting ready to take the dog for a walk in the park.  Today‘s testimony from the yoga instructor, of course, may put that into question.

Let‘s bring in our legal team, former prosecutor Lisa Pinto, criminal defense attorney Mercedes Colwin, and in the courtroom today, former San Mateo County prosecutor Dean Johnson.

All right, Dean since you were inside the courtroom today, again, give us an assessment of you know how powerful was this, how effective was it in continuing the prosecution‘s effort to say Laci wasn‘t walking any dogs, period.

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Well it‘s pretty effective.  We had a blow-up by Geragos just before the most effective testimony, though, where the yoga teacher says that she had a conversation with Laci and they mentioned that she wasn‘t walking—quote—“on uneven terrain.”

Now, of course, Scott Peterson is saying that she must have gone to walk the dog down in Dry Creek Park, which the prosecution has been setting up for days as some place that had very uneven terrain and was difficult to walk in.

So, yes, it does help to undermine the defense theory of the case.

ABRAMS:  And Lisa Pinto, are you concerned about the fact that so early in the case, the prosecutors are spending so much time attacking the defense theories.  Meaning, as opposed to just laying out their theory of what happened, the prosecutors are spending a whole lot of time early on trying to debunk or refute defense theories.

LISA PINTO, FMR. NYC PROSECUTOR:  You know Dan, you and Dean have been so hard on this prosecution team, but to me, this is a nail in Scott Peterson‘s coffin today.  If they throw out the nonsense about Laci Peterson walking her dog and being abducted, then the only way she could have gone was from her home.

So, if she‘s gone from her home, why isn‘t there a break-in or why isn‘t there some evidence of foul play?  I think this is a fantastic way of shutting down all of Mark Geragos‘ doors as you walk - sometimes they analogize it...

(CROSSTALK)

PINTO:  ... to walking it down a corridor and you just shut the doors on all the defense theories.  And then what are you left with?  The defendant.

ABRAMS:  You know...

JOHNSON:  Lisa, just to set the record straight, I‘m one of the few people out here who‘s been sitting in the courtroom and saying good things about the...

PINTO:  Oh, all right, Dean, sorry.

JOHNSON:  ... prosecution.  I think...

(CROSSTALK)

JOHNSON:  ... I think they‘re very slowly building a case and they‘ve brought in some terrific facts.  I do think they need, though, to focus this case, I think it‘s almost unprecedented that they would be so defensive early on and take what I think is a very good rebuttal case and put it on...

(CROSSTALK)

JOHNSON:  ... at the beginning here and not save it for their last...

(CROSSTALK)

JOHNSON:  ... word...

UNIDENTIFIED FEMALE:  But Geragos...

JOHNSON:  ... when they effectively shut down...

UNIDENTIFIED FEMALE:  ... I don‘t think there‘s any...

JOHNSON:  ... Geragos‘ defense.

ABRAMS:  Let me let Mercedes in...

MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY:  And frankly, I don‘t think there‘s...

ABRAMS:  Mercedes Colwin.

COLWIN:  ... any nail in a coffin right now because what she‘s saying is four days before she goes out for a walk with her dog, she‘s trying to go through yoga class.  I mean that speaks volumes here.  Every witness that goes on keeps saying she‘s very self-conscious about her weight.  She was trying to work out.  She was trying to work out four days before...

PINTO:  Mercedes...

COLWIN:  ... and frankly, every day is a different day for a pregnant woman...

PINTO:  There‘s a difference between...

COLWIN:  One day she could certainly feel better...

(CROSSTALK)

ABRAMS:  Hang on.  One at a time.

COLWIN:  One - she could - one day she could certainly feel better about walking her dog.  The next day maybe she couldn‘t get out of bed...

ABRAMS:  All right...

COLWIN:  It‘s those day-to-day...

(CROSSTALK)

ABRAMS:  Lisa...

(CROSSTALK)

ABRAMS:  Let Lisa...

(CROSSTALK)

ABRAMS:  Hang on.  Hang on...

(CROSSTALK)

ABRAMS:  Let Lisa in.  Let Lisa in.

(CROSSTALK)

COLWIN:  I don‘t think there‘s any concrete evidence.

PINTO:  Yoga...

ABRAMS:  Lisa, Lisa, Lisa...

PINTO:  ... involves lying around in corpse position at a yoga studio checking your breathing.  That‘s what prenatal yoga is all about.  There‘s a big difference between walking a 100-pound dog as he charges down the street.  Laci was not capable of doing that.  We‘ve heard it from her friends.  We‘ve heard it from her doctor.  And Geragos‘ theory is going (UNINTELLIGIBLE) in front of the entire jury...

ABRAMS:  You know, Dean, let me ask you about this issue...

(CROSSTALK)

ABRAMS:  Let me ask you...

(CROSSTALK)

ABRAMS:  Dean, hang on.  Let me ask you about this issue about the vacuuming in the house.  You know this to me, again, is more affirmative to the prosecution‘s case.  Here it‘s not - they‘re going to argue this and here‘s how we‘re going to respond to it so early in the case.  This is part of the active prosecution case, which is Scott Peterson is behaving in a bizarre fashion after Laci goes missing.  Again, how did it come across in court today?

JOHNSON:  Right.  This is one of the two or three best things that they‘ve done, putting together what seems to be a pattern of inexplicable behavior on the part of Scott Peterson.  I think the prosecution is doing a great job of saying look, this guy showed up at his house.  His eight-month pregnant wife is missing.  The dog is dragging the muddy leash around in the back yard and she supposedly went walking on some fairly rough terrain.  He has milk.  He has pizza.  He has a shower.  He washes his clothes and only then does he think to start making some phone calls and then once the search starts, what‘s he doing?  Vacuuming up the house...

ABRAMS:  Mercedes...

(CROSSTALK)

ABRAMS:  Let me read you the quote... 

COLWIN:  Sure.

ABRAMS:  This is what Stacey Boyers said today in court.  I said what are you doing?  He said I can‘t keep the house clean enough.  And then he turned around and kept vacuuming.”

I guess he can make the argument that when people are stressed, they are do a lot of odd things, but again, you know this goes to the fact that the housekeeper is there the day before Laci goes missing.  He says the last thing he sees Laci doing is mopping the house.  Now he‘s vacuuming the next day.  You know you would think that this guy works for some, you know, cleaning service based on the amount that he says is going on in that house with regard to cleaning.

COLWIN:  Maybe he‘s applying to Molly Maids now Dan, but I think you make a good point.  I think that people act differently under stress and frankly, and the bottom, final analysis is this.  If he killed her in the house, where‘s the blood?  Where are the fibers...

ABRAMS:  He cleaned it up they would say...

(CROSSTALK)

COLWIN:  No, but you know what? 

(CROSSTALK)

COLWIN:  We are very savvy...

(CROSSTALK)

COLWIN:  We are very savvy.  We‘re in a 21st century.  We have luminal (ph).  We have other chemicals that can certainly find whatever fiber, whatever body fluids are in there.  We have found nothing...

PINTO:  First of all, we haven‘t heard...

COLWIN:  And I think...

PINTO:  ... the rest of their case, Mercedes...

COLWIN:  But frankly...

PINTO:  Can I jump in Dan?

CARLOS:  ... you would have been able to find...

ABRAMS:  Lisa gets the final word...

(CROSSTALK)

ABRAMS:  ... and then I‘ve got to wrap this up.  Lisa, go ahead.

PINTO:  Mercedes, the stress that Scott Peterson was under, that of being detected, and that‘s why he said to one of Laci‘s friends oh gee, if they find my blood on the truck, I may have cut myself.  That‘s the stress that he was under.

ABRAMS:  All right...

COLWIN:  The stressors are because he‘s the husband and 85 percent of those who are murdered...

(CROSSTALK)

COLWIN:  ... believe that could be someone who‘s related.  Certainly, he would be the first suspect, but ultimately I don‘t think...

(CROSSTALK)

ABRAMS:  All right...

(CROSSTALK)

ABRAMS:  ... we will continue.  We‘re not done.  We‘re not done.

(LAUGHTER)

ABRAMS:  Lisa, Mercedes, Dean, stay with us.  When we come back, the judge rules in whether to dismiss that juror who spoke to Laci Peterson‘s brother as they were coming in to court.  Might the judge change his mind when he actually sees and hears the tape? 

And if you ever thought about suing your HMO for malpractice, think again.  A big ruling from the U.S. Supreme Court will make you think twice even if they refuse to provide treatment.

And later, Kobe Bryant back in court.  His lawyers say they want to ask respective jurors their views on interracial dating.  And lawyers on both sides arguing over a question I‘ve been brining up for months.  What if Bryant walked out thinking he did nothing wrong and the alleged victim thought it was rape?

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, the judge in the Scott Peterson case rules on whether to dismiss one of the jurors, but might he change his mind after he sees and hears the tape of the juror talking to Scott Peterson‘s brother?

(COMMERCIAL BREAK)

ABRAMS:  Welcome back.  Today the Scott Peterson trial started behind closed doors.  The judge meeting separately with Laci Peterson‘s brother and juror number five because of this.

Brent Rocha having a really brief conversation with the juror Thursday morning as they came into the San Mateo Superior Court.  The brief chat caught on tape and the media, including us, reported the juror ended his sentence saying—quote—“lose today”, which sounded crystal clear on the tape.

This morning Rocha said we all had it wrong.

(BEGIN VIDEO CLIP)

BRENT ROCHA, LACI PETERSON‘S BROTHER:  No, you guys had the word wrong, though.  It wasn‘t the word lose, so...

UNIDENTIFIED FEMALE:  What was it?

ROCHA:  ... you to know that.

(END VIDEO CLIP)

ABRAMS:  Well, you know, I don‘t know what it was, but we listened to that again and again.  It sure sounded like lose to us.  The judge saying he did not find any misconduct on the part of Laci‘s brother or the juror?  Still wants to look at the tape.  The subpoena served this morning before court.  The media has until Wednesday to turn over the tape.

Also, the defense and prosecution asking the judge to ban all cameras from the court‘s first floor—the judge denying the request, telling both sides calm down.  You‘re overreacting. 

Let‘s bring back our legal panel.  All right, Lisa, I had thought that in a sort of abundance of caution that this judge might say you know what, just to avoid any perception of impropriety, that the judge would be inclined to dismiss the juror.  It seems that just the opposite.  The judge was very much disinclined to dismiss the juror.

PINTO:  Well I think you know it was pretty harmless what he did.  I think now he‘s been warned.  If he were to do it again, he‘d be in serious trouble.  But I think we should fess up here on both sides.  Mercedes, Dean, when you‘re prosecuting a case or defending a case, you try to get rid of the jurors you don‘t like.  This was Geragos‘ golden boy and he wasn‘t going to lose him. 

This was the juror that smiled at him, dug his jokes and said that having a mistress wasn‘t a problem.  So I think Geragos was fighting very hard to keep this guy in the pool and the prosecution should have maybe fought harder to get rid of him.  But he didn‘t really do anything too wrong.

ABRAMS:  Dean,  it would seem to me it would be kind of hard for the prosecutors to get rid of him if he‘s sort of talking amicably with Brent Rocha, who certainly is on the prosecution side.

JOHNSON:  Yes, I think that‘s right.  This is essentially a pro-defense juror.  I don‘t think the prosecution is going to gain anything by getting rid of him either because alternate number one is by all accounts somebody who would be an ideal pro-defense juror.  But bottom line is Judge Delucchi being such an experienced jurist, he‘s handled about two-dozen death penalties and he saw that there really was not anything going on here.  It was innocuous and he confirmed that by interviewing apparently both Brent Rocha...

(CROSSTALK)

JOHNSON:  ... and the juror separately and they gave almost verbatim accounts of what was said and it wasn‘t anything that impressed the judge.

ABRAMS:  And I got to tell you, it‘s a weird thing.  For those of you who have not been involved in high profile cases, you know to be covering a case or to be a participant in a case, I can tell you the jurors have made little comments to me during trials and I literally sit there and freeze up, and I won‘t look at them. 

I won‘t turn near them.  I won‘t say a word to them just because I know that people would love to say oh the media had some impact on this case.  But it‘s weird.  I mean it‘s a odd thing to have someone saying good morning or oh these are my keys or hey excuse me, and you have to say oh I‘m not allowed to talk to you.  Here‘s what the judge said about it today.

If you see anyone involved in this case, lawyers, witnesses, anyone who looks familiar from the courtroom, I would suggest that you have no comment at all.  It‘s not that you‘re insensitive or indifferent to them, but it‘s out of caution. 

Go ahead Lisa.

PINTO:  Dan, I was just going to say I agree with you completely.  It was an artificial thing in a courtroom because you were see your jurors.  When I was trying case here in New York City, you would see your jurors maybe on the subway, in the hallway, on the elevator, and you have to act like they‘re not there.  And they think what‘s wrong with this lady?  Is she a snob?  Does she not recognize me?  And only afterwards, after the verdict is in you can say look, I wasn‘t allowed to talk to you...

(CROSSTALK)

COLWIN:  That‘s why, Dan, at the very beginning of a trial, usually the judge just warns the jurors not to have any conversation, even if it‘s casual.  And if you see the lawyers that are involved here, understand that they‘re not being - they‘re not ignoring you.  They‘re simply abiding by my warning to you that you‘re not to talk to them...

ABRAMS:  Yes and...

COLWIN:  Even good morning...

ABRAMS:  ... very often what will happen is after something like Lisa described happens, the lawyer will then go to the judge and say Judge, could you just tell the jurors again that I‘m not allowed to talk to them...

UNIDENTIFIED FEMALE:  Exactly.

ABRAMS:  ... because I saw one on the subway and he was trying to say hello to me and I couldn‘t talk to him.  Anyway, it seems that this juror...

UNIDENTIFIED FEMALE:  Exactly.

ABRAMS:  ... is going to be staying and that it is not going to have any impact on the case, but we shall see after the judge listens to the tape.

Lisa Pinto, Mercedes Colwin and Dean Johnson, thanks a lot.

UNIDENTIFIED FEMALE:  Thank you.

JOHNSON:  Thanks Dan.

UNIDENTIFIED FEMALE:  Thank you.

ABRAMS:  Remember, we are the place to turn to for all the latest in the Scott Peterson case.  And for an interactive timeline of events, go to our Web site, abramsreport.msnbc.com. 

Coming up, you might not be happy with your HMO, but today the U.S.

Supreme Court ruled there is one less thing you can do about it. 

And she‘s become the symbol, the face of the abuse at the Abu Ghraib prison and as she prepares to head to a military court, Private Lynndie England finally speaking out. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  I get a lot of people that support me, come up and shake my hand.  And they think I‘m great and I‘m their heroine of Baghdad...

(END VIDEO CLIP)

(COMMERCIAL BREAK)

ABRAMS:  You must have thought about it at some time or another, suing your HMO for even at times medical malpractice.  Well you might not get very far after a U.S. Supreme Court decision handed down today.  The court decided to uphold the law that limits millions of HMO patients from suing their insurers who refuse to pay for treatment, even when it‘s been recommended by a doctor.

NBC Tracie Potts has the story.

(BEGIN VIDEOTAPE)

TRACIE POTTS, NBC NEWS CORRESPONDENT (voice-over):  All nine justices agreed states cannot preempt a 1974 federal law that protects HMOs from malpractice suits.

RON POLLACK, FAMILIES USA:  Patients are now in effect going to be helpless when their HMO improperly denies care.

POTTS:  Ruby Calad was one of two plaintiffs.  After surgery, her HMO against her doctor‘s advice, refused to pay for more than one day of recovery in a Texas hospital.

RUBY CALAD, PLAINTIFF:  And I said listen, I‘m in an extreme amount of pain.  There is no way I can leave this hospital.  He said if you don‘t leave, you‘re going to have to pay $1,500 a day to stay.

POTTS:  The insurance industry says that‘s exactly what she should have done.  The Supreme Court agreed and said those patients could have challenged the HMO decision internally.  Neither did.  Insurers say they can‘t afford to fight lawsuits from every disgruntled patient.

KAREN IGNAGNI, AMERICA‘S HEALTH INSURANCE PLANS:  If every coverage decision becomes a lawsuit, then we have no hope of preserving affordable healthcare benefits.

POTTS:  It will literally take an act of Congress to allow patients to sue.  Year after year such efforts have failed.  Another will be introduced this week.

REP. JOHN DINGELL (D), MICHIGAN:  And it‘s my intention to push it vigorously and diligently to success, to try and see to it that the American people are protected against the excesses of a bunch of cold-hearted, flitty-eyed (ph) HMO accountants.

POTTS:  For now, patients are often left with the bill or with bad health.

Tracie Potts, NBC News, Washington.

(END VIDEOTAPE)

ABRAMS:  Coming up, Kobe Bryant is back in court today.  His lawyer is now saying they want to ask prospective jurors what do you think about interracial dating.

And just days after terrorists murdered Paul Johnson in Saudi Arabia, terrorists in Iraq threatening to kill another foreigner if demands are not met.

Your e-mails abramsreport@msnbc.com.  Please include your name and where you‘re writing from.

(COMMERCIAL BREAK)

ABRAMS:  Lawyers in the Kobe Bryant case arguing over what rape is.  What if Bryant thought he did nothing wrong and the alleged victim thought she was raped.  Is it a crime—first, the headlines.

(NEWS BREAK)

ABRAMS:  We‘re back.  For months I‘ve been asking the following question?  What if Kobe Bryant left that Colorado hotel room believing he did not rape the young woman if he thought it was consensual sex and yet, she believed it was sexual assault, then what happens?

Well that‘s one of the issues before the court today.  Another debate over the questions that will appear on the jury questionnaire.  The defense wants to ask prospective jurors about their views on interracial dating.

NBC‘s Mark Mullen is at the courthouse in Eagle, Colorado with more on today‘s hearing.  Hey Mark.

MARK MULLEN, NBC NEWS CORRESPONDENT:  Dan, good afternoon to you and you pose, especially in that first part of the introduction, an interesting question.  I think anytime there is a rape case, there is always an assumption that someone has to be lying.  It‘s either the defendant or the alleged victim.

And you talk to some veteran prosecutors and they will tell you very often it may in fact be the case that both of them believe they are telling the truth.  You could theoretically have a situation in which Kobe Bryant thought that there was no sexual assault that there was consensual sex, and you may have a situation in which the alleged victim believed that somewhere during that incident the line was crossed.

And basically it all comes down to that very issue and that essentially raised its head in court today in an open part of the court that we heard a little earlier.  Here‘s basically how it came out.  Kobe Bryant defense attorneys want the judge to essentially do this.  Tell the jurors that they must acquit Bryant if jurors determine the accuser consented to sex.

In essence, Hal Haddon, the defense attorney, one of them, said prosecutors must prove beyond a reasonable doubt the woman did not consent to sex and that Kobe knew that.  But prosecutors say not so fast.  They must only prove that the sex was against the victim‘s will.  It all comes down to this entire debate over what is consent versus what is submission.  The judge did not make a ruling on that, but even though it sounds like it‘s something small, semantics, very important semantics, which could ultimately decide the outcome of this case.

What else happened in court today—a couple of interesting points.  There was a debate over the questionnaire the jurors, prospective jurors will have to fill out, specifically, over a couple of questions.   Here was one.  Prosecutors did not like the fact that the defense suggested that prospective jurors be asked about their opinions of interracial dating.

Remember, Kobe Bryant is an African American and the alleged victim is Anglo.  The prosecutors, for their part, said this is a bogus question.  There was never any relationship.  They were not dating.  This was not a relationship.  This does not believe.  But it shows you that many different small aspects of this trial are being hammered out and being fought over.

ABRAMS:  And Mark...

MULLEN:  Here‘s an interesting point, also, as we throw it back to you Dan, which should be quite interesting.  The judge is dealing with a lot of issues, including basically some precedent moods. 

ABRAMS:  Yes.

MULLEN:  Here in Colorado for the last five years, in civil cases, jurors in civil cases have had the ability to ask questions of witnesses who happen to be on the stand.  Well, come July 1, the same will apply to criminal cases.  So in the Kobe Bryant case, whenever that happens, which it possibly could be late August or early September, we found out today you theoretically could have some of the jurors asking questions along with, of course, attorneys on both sides, witnesses different questions...

(CROSSTALK)

MULLEN:  They would not be shouting them from the jury box...

ABRAMS:  Right.

MULLEN:  It would be in an organized fashion.  They would submit them in paper to the judge, who would determine whether they are relevant or not, it would be passed on.  But is believed to be the first rule of its kind to be implored in what already is a very high profile trial. 

Back to you.

ABRAMS:  All right, so a lot to chew on.  NBC‘s Mark Mullen, thanks a lot.

All right, I want to start with this issue of the interracial dating.  We can talk about the distinctions between submission and consent, et cetera, in a minute.  But I want to deal with this issue of interracial dating and I‘m joined now by Jeralyn Merritt, criminal defense attorney and Norm Early, MSNBC analyst and former D.A...

(CROSSTALK)

ABRAMS:  ... of Denver.  All right, Norm, first let me ask you, I mean you know look, yes, there‘s something awkward about calling it dating and saying how do you feel about interracial dating?  But isn‘t it important to know if jurors simply believe that no, you know black person should be having sex with any white person that for certainly for one side or the other is probably not the type of juror that you want on the case.

NORM EARLY, FMR. DENVER D.A.:  Yes, I‘m not sure which side that is Dan, but that‘s right.  So, why not just ask that question rather than interracial dating and interracial marriage, which were the two questions that were being asked.  Because interracial dating and interracial marriage implies a relationship in the mind of the prosecutors and jurors might think that there is a relationship here and that‘s why they‘re asking us about interracial dating and interracial marriage.  The prosecution‘s point of view is there is no relation here.  There was no relationship here and we don‘t want any implication that there was.

ABRAMS:  Jeralyn, what‘s the matter with that?  What‘s the matter with phrasing the question of how do you feel about sexual relations between black men and white women or if you want to throw it out vice versa, fine.  But why do you have to put in the word dating and marriage?

JERALYN MERRITT, CRIMINAL DEFENSE ATTORNEY:  Because this started out almost as a date.  If you recall...

ABRAMS:  Oh come on...

MERRITT:  ... she willingly went to his room...

(LAUGHTER)

MERRITT:  She willingly engaged in kissing with him.  There was mutual flirting going on and...

ABRAMS:  Right.

MERRITT:  ... you want to know whether the jury is going to say that that - there is something wrong with that.

ABRAMS:  But even if...

(CROSSTALK)

ABRAMS:  Right.  That‘s right...

(CROSSTALK)

ABRAMS:  I agree with you.

MERRITT:  ... so I think it‘s an appropriate question.

ABRAMS:  But I - see, I think that the issue is appropriate, but come on.  I mean I don‘t even think - even if you assume that Kobe Bryant is completely innocent here and that these charges that - I think you‘re right.  No one disputes the fact that it started consensually.  But I‘d be really - I think you‘d be hard pressed to find someone to call this a date.  I mean this is someone going up to the hotel room who they met a moment ago and then the, you know sexual activity begins.  That doesn‘t really sound - I don‘t know.  Maybe I‘m old fashioned in the way...

(CROSSTALK)

ABRAMS:  ... I view dates.  I don‘t know.

MERRITT:  Well I think it‘s the flirting...

EARLY:  You and me both Dan...

MERRITT:  ... and I think you know you want to make sure people aren‘t going to say he shouldn‘t have been flirting with her to begin with.

ABRAMS:  Yes...

EARLY:  I think it‘s most important, Dan, to try to ask the question as closely related to the facts as possible and this certainly was not an interracial marriage and it would be a far cry to call this an interracial dating situation...

ABRAMS:  All right...

EARLY:  ... because dating implies a relationship and generally, a long-term relationship.

ABRAMS:  All right, Jeralyn...

MERRITT:  What about first dates, Norm?

ABRAMS:  Well, even a first date, though, I mean, come on.  This is - Jeralyn, did you have a lot of first dates like this in—I mean come on.  This is not...

MERRITT:  No, I didn‘t...

(LAUGHTER)

ABRAMS:  All right.  OK.  All right...

EARLY:  Whoa...

MERRITT:  Happily, I did not.

ABRAMS:  All right.  All right.  All right.  I didn‘t either.  I mean I‘m just saying that I don‘t - you know...

(LAUGHTER)

ABRAMS:  All right, Jeralyn, look, Jeralyn...

MERRITT:  Norm...

ABRAMS:  Jeralyn knows the law very well in Colorado and Jeralyn look this is pretty complicated.  Can you break this down for us about exactly what the issue is that they‘re fighting over?  I mean it sounds like the two things are pretty similar.  Explain to us what is at the heart of the issue that they‘re fighting over when it comes to consent, et cetera, and the definition of rape.

MERRITT:  OK.  They‘re fighting over actually two things.  One is whether or not Kobe had to know she didn‘t consent if she didn‘t consent.  And the second one is the difference between submit and consent.  You can submit to a sexual activity consensually or non consensually.  For example, think of a woman who is getting raped who decides not to fight because it might just go easier that way.  She is still being forced against her will.  The statute prohibits forcing someone to submit against their will and what Kobe is saying is you need to instruct the jury that it‘s affirmative defense if she consented.  Because consent is the exact opposite of submission against one‘s will.  And you can‘t just equate submit with consent.  You have to equate consent with submit against one‘s will. 

ABRAMS:  Right.

MERRITT:  Now the mental element for the statute, because remember, every crime has an associated mental state that the prosecution must prove is knowingly.  So, the prosecution has to prove that Kobe knowingly caused her to submit...

ABRAMS:  All right.

MERRITT:  ... to the sexual act against her will.

ABRAMS:  Very quickly, Norm, knowingly, that‘s right, right?

EARLY:  No, the issue here is whether or not she gave consent to this act.  She‘s saying she didn‘t.  She doesn‘t have to retreat to the wall.  She submitted, but she submitted as a result...

ABRAMS:  All right...

EARLY:  ... of what she felt was some kind of pressure.  They say it‘s not a consensual situation, but the real key here, Dan, is if it‘s an affirmative defense, then the prosecution has to disprove...

ABRAMS:  Yes.

EARLY:  ... affirmative defense...

ABRAMS:  All right.

EARLY:  ... beyond a reasonable doubt, which is a very, very difficult thing to do.

ABRAMS:  All right, and this is...

MERRITT:  Right.  Norm‘s right.

ABRAMS:  ... I know, but this is a difficult thing to explain, so Jeralyn Merritt and Norm Early...

MERRITT:  I didn‘t help.

ABRAMS:  No, you were great.  You both were great.  Look, the bottom

line is it‘s complicated and I think you guys did as good a job as humanly

possible.  You certainly did a better job than I - that‘s why I went to you

·         I don‘t usually go to you guys to explain the law.  Come on - all right, thanks for coming on the program, Norm and Jeralyn...

EARLY:  Thanks a lot Dan.

MERRITT:  Thank you.

EARLY:  Take care, Jeralyn.

ABRAMS:  Coming up, she‘s become the face of the prison abuse scandal, now Private Lynndie England is talking, saying some even consider her a heroine. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  I‘m not the only one that shouldn‘t go to jail. 

I think that none of the seven of us should. 

(END VIDEO CLIP)

(COMMERCIAL BREAK)

ABRAMS:  The face of terror on display last week in Saudi Arabia and this week in Iraq.  Once again, a family is waiting to hear if a loved one has been beheaded by Muslim terrorists. 

Last week the victim was American Paul Johnson.  This time it‘s a South Korean named Kim Sun-il held hostage by a group that‘s promised to cut his head off unless the Seoul government cancels plans to send troops to help the coalition.  Kim‘s terrified plea for help captured on camera by his captors.

(BEGIN VIDEO CLIP)

KIM SUN-IL, HOSTAGE IN IRAQ:  I don‘t want to die.  I don‘t want to die.  I want to live.  Your life is important, but - and my life is important. 

(END VIDEO CLIP)

ABRAMS:  The group holding Kim claims it‘s loyal to this man, terrorist leader Abu Musab al-Zarqawi.  Like the Saudi terrorist who beheaded American Paul Johnson, they followed al Qaeda‘s regional leader, Abdulaziz al-Muqrin. After Johnson‘s murder Friday night, al-Muqrin and three of his followers were killed in a shootout with security in the Saudi capital of Riyadh.

Sounds like a big victory in the war on terror, but is it?  Since October 2002, Saudi security has killed or captured four alleged al Qaeda leaders in their country.  That didn‘t save Paul Johnson‘s life or keep the terrorists from announcing a new Saudi leader today.

So, how much does it really mean in the war against al Qaeda?  I‘m joined now by terrorism expert, Professor Mark Jurgensmeyer, director of global studies and sociology at the University of California, Santa Barbara and the author of “Terror in the Mind of God: The Global Rise of Religious Violence”.  He is just back from Baghdad. 

Professor thanks a lot for taking the time.   All right, look, you know these are four leaders, you know, of al Qaeda in Saudi Arabia.  You know, I know that your answer is going to say yes, they‘re just going to rise up and someone else is going to come forward.  But, isn‘t there some psychological impact it has on al Qaeda to say look, the Saudis are serious.  They found four of your top leaders who were likely responsible for this and they‘re going to do it again if you do it again.

MARK JURGENSMEYER, U.C. SANTA BARBARA:  Yes.  Sure.  I think it‘s important that the Saudis are serious and I think it‘s important that they try to track these people down and I think it does make some impact on the movement.  But on the other hand, I‘ve interviewed people who were involved in al Qaeda acts and supporting of other acts of terrorism.  They think that the world is at war and they have a kind of war mentality.  And from that point of view, they are really excited when they see the battle actually happening, when the enemy come and attack them.  So, far from making them shirk away and shrink from terror, this actually enlivens them and actually helps promote their supporters and gain more supporters.

ABRAMS:  But, then the problem with that theory is that it seems then that the answer is OK, we don‘t go after them and we don‘t kill them and that can‘t be the answer.

JURGENSMEYER:  No, of course you go after them and you try to capture them and you try to capture them any way you can.  I‘m not saying that at all.  But if you expect that this now means that we‘re going to have the end of terrorism, I‘m afraid it‘s not that easy. 

(CROSSTALK)

JURGENSMEYER:  ... the conditions in which produced these people in the first place, then you‘re not going to find these movements easily shirking away.

ABRAMS:  But see, I‘ve long believed that when it comes to al Qaeda, that trying to look back too much at why they do what they do is giving them too much credit.  Because I think it‘s reached a point where nothing will satisfy al Qaeda.  They‘ve made it quite clear that until fundamentalist Islamic governments are in place in Saudi Arabia and much of the world, they‘re not going to be satisfied.  So, how can - why does it help to look into...

(CROSSTALK)

ABRAMS:  ... what causes them to do what they do?

JURGENSMEYER:  I‘ll tell you why.  Because look at the kind of acts that they perform.  And I use the word perform deliberately—for example, the beheading of somebody.  There were two people captured at the time that Paul Johnson was captured.  We don‘t even remember the name of the other guy who was killed almost immediately.  That killing somehow didn‘t register in my minds the same way this dramatic and painfully terrible presentation of the victims and having them pleaing in front of the world and finally killing them. 

That has an extraordinary impact on television.  That means that there‘s an audience out there they‘re trying to reach and part of that audience is the wider Muslim world.  Insofar as that there is a support for this kind of message.  Insofar that there is a hatred towards Americans‘ actions in the Middle East and this message is going to resonate.  And simply killing them is not going to kill the power of their message.  That‘s the problem.

ABRAMS:  Yes, but that - but it seems to me that the answer according to you, then, would be to capitulate to a certain degree and say well you know what, they want this.  We should probably agree to that...

JURGENSMEYER:  No...

ABRAMS:  ... to be a little more fair to them and as a result, not upset them.

JURGENSMEYER:  No, I‘m not saying that at all.  I‘m saying that you can - and you‘re absolutely right.  You can never please the hard core of al Qaeda and you‘re not going to change their minds and not going to negotiate.  I‘m not concerned about al Qaeda—that is the narrow leadership.  I‘m concerned about the larger Middle East...

ABRAMS:  Yes.

JURGENSMEYER:  ... Muslim world that is kind of standing on the background not knowing which side to follow...

ABRAMS:  Yes.

JURGENSMEYER:  ... and the degree to which they then are innovated, the way their support is marshaled...

ABRAMS:  Yes...

JURGENSMEYER:  ... behind al Qaeda because of our (UNINTELLIGIBLE) that is the - that‘s the real battle that we should be concerned about...

ABRAMS:  Well...

JURGENSMEYER:  That‘s the real victory we have to win.

ABRAMS:  I think that‘s going to be a tough one to win.  Professor...

JURGENSMEYER:  It is.

ABRAMS:  ... I think you‘d agree with that.  Yes, thanks a lot for coming on the program.  I really appreciate it.

Coming up, Private Lynndie England speaks out about her role in the Iraq prison abuse scandal and why members of the administration are sounding too much like lawyers when it comes to the 9/11 commission report and those supposedly long established ties between Saddam and al Qaeda.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, why the administration should stop parsing words like a bunch of lawyers. 

(COMMERCIAL BREAK)

ABRAMS:  We‘re back in Baghdad on Monday.  Attorneys for two of the U.S. guards accused of abusing Iraqi prisoners, they want permission to seek testimony from General John Abizaid and Lieutenant General Ricardo Sanchez when their clients go on trial.  And in North Carolina, a hearing delayed from Tuesday to July 12, for one of the most notorious Abu Ghraib prison guards, Private First Class Lynndie England.  A few days ago, Private England spoke exclusively with international journalist Daphne Barak. 

NBC‘s Hoda Kotb has the story.

(BEGIN VIDEOTAPE)

UNIDENTIFIED FEMALE:  I think I‘ll always be the girl with the leash. 

HODA KOTB, NBC NEWS CORRESPONDENT (voice-over):  Her named is Lynndie England.  She‘s better known as the girl with the thumbs up, the girl with the cigarette pointing, the girl with the leash.  Twenty-one-year-old Private England from West Virginia wanted to chase storms.  The Army seemed like a good exciting way for her to fulfill her dreams. 

UNIDENTIFIED FEMALE:  I was trying to get money to go to college for meteorology. 

KOTB:  But now she‘s landed in the heart of a storm bigger than she could ever imagine.  In January, England called her mother from Iraq, alerting her of the trouble to come. 

UNIDENTIFIED FEMALE:  She said, mom, there‘s some things that‘s going to happen.  And she said I‘m fine but that some horrible things have happened. 

KOTB:  Speaking public last week for the last time, Terry England (ph) told international journalist Daphne Barak about seeing the photographs that would come to symbolize to many around the world the worst in America. 

UNIDENTIFIED FEMALE:  It just took my breath. 

UNIDENTIFIED FEMALE:  And what did you see? 

UNIDENTIFIED FEMALE:  What did I see?  My daughter standing pointing at prisoners naked.  It upset me because I know that‘s not Lynndie. 

KOTB:  But it was.  Private England was sent back to the states. 

She‘s living on base now at Fort Bragg, North Carolina. 

UNIDENTIFIED FEMALE:  If you could make one wish, what would that be? 

UNIDENTIFIED FEMALE:  To go back in time and not join the Army. 

KOTB:  England‘s lawyers have argued publicly their client was ordered to humiliate and intimidate the Iraqi prisoners.  To—quote—“soften them up for interrogation.”  England insists she and the other six soldiers accused are being made scapegoats. 

UNIDENTIFIED FEMALE:  I‘m not the only one that shouldn‘t to go jail. 

I think that none of the seven of us should. 

KOTB:  Among the seven is Specialist Charles Graner.  England is six months pregnant and he is widely believed to be the expectant father.  Still in Iraq, his military court hearing is also scheduled to start this week.  If both are convicted, their unborn son may have to be raised by his grandmother. 

UNIDENTIFIED FEMALE:  It scares me to think I might have to go home with a grandchild without my daughter. 

KOTB:  Admitting she‘s barraged with hate mail, England said she tries to gain strength from strangers who still come up to her to say they believe what she did was right. 

UNIDENTIFIED FEMALE:  I get a lot of people that support me and come up and shake my hand and they think I‘m great and I‘m the heroine of Baghdad. 

UNIDENTIFIED FEMALE:  Do you feel that way? 

UNIDENTIFIED FEMALE:  Not really.

UNIDENTIFIED FEMALE:  What do you feel?

UNIDENTIFIED FEMALE:  I just want to go home and get it over with. 

KOTB:  The military insists this was the seven soldiers‘ own initiative.  If convicted, England may face up to 15 years in prison.

Hoda Kotb, NBC News, New York.

(END VIDEOTAPE)

ABRAMS:  My “Closing Argument”—when politicians at even the highest

level sink to the ultimate low, talking like lawyers.  Reminiscent to

President Clinton twisting and agonizing over the word is, this

administration is now in a silly, pedantic battle over the words from the

9/11 commission staff report.  The commission found that there‘s—quote -

·         “no credible evidence Saddam Hussein was behind 9/11.”  OK, seems everyone including the administration now agrees with that. 

The report also concluded that despite overtures from bin Laden to

Saddam, and at least one meeting between a senior Iraqi intelligence

officer and bin Laden, none of it appears—quote—“to have resulted in

a collaborative relationship.”  Taking a page from Clinton‘s book of

ambiguity, the administration says that supports their repeated claims of -

·         quote—“long established ties”—quote—“numerous contacts and relationships between Saddam and al Qaeda.”

That sort of word mongering is just gainsmanship.  Now skittish commissioners who seem stunned by the political fallout are also parsing words in a way they successfully avoided in their report.  Chairman Kean saying there were contacts.  Vice Chairman Hamilton saying there were relationships.  But that‘s not the question.  So they had a few failed meetings.  How did that translate into long established ties? 

As I said before, the U.S. has had far closer ties with Saddam than al Qaeda ever did.  The question is simple.  Were they working together?  Everyone now finally seems to concede that there‘s no evidence Saddam was behind 9/11.  But were they working together on other terror projects?  The 9/11 commission is saying they have not seen any evidence of that.  The administration is only undermining its credibility.  They do not and did not need this phantom connection to justify the war. 

There was evidence to believe Saddam had weapons of mass destruction, as even President Clinton has said.  If this administration believes the commission‘s report is wrong, let them argue that.  That there‘s new evidence, as some have claimed.  Fine.  Let‘s see it.  Let them investigate it, but only a lawyer or someone who thinks like one could even argue that the report supports the idea that there were long established ties between Saddam and al Qaeda.  You know, it‘s the sort of reasoning that makes people distrust lawyers. 

I‘ve only got time for one e-mail.  I‘ll read it about this particular topic we‘re doing.  Many of you still disagree with me on this.

Jerome G. from Fair Lawn, New Jersey.  “There‘s a difference between collaboration and accommodation or close ties.  The 9/11 commission parsed their words well.  Of course, there‘s no evidence of collaboration, but there was definitely evidence of accommodation.” 

Spoken like a real lawyer Jerome. 

All right, I am out of time.  Your e-mails abramsreport@msnbc.com

“HARDBALL” with Chris Matthews is up next.  He‘s got an exclusive with Ron Reagan and watch “The Tonight Show” with Jay Leno tonight.  I‘m a guest.

Thanks for watching.  See you tomorrow.

END 

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