updated 6/23/2004 10:32:42 AM ET 2004-06-23T14:32:42

Guests: Dean Johnson, Bo Dietl, Jocelyn Larkin

DAN ABRAMS, HOST:  Coming up, a juror is seen laughing with Laci Peterson‘s brother.  What does that mean for the case against Scott? 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  The first detective to arrive at the Peterson home after Laci disappeared plays a videotaped interview with Scott Peterson. 

Plus, terrorists in Iraq behead another hostage, this time a South Korean translator.  South Koreans insist that will not change their plans to send troops to Iraq. 

And the biggest private civil rights lawsuit ever against the nation‘s biggest employer.  Female employees say Wal-Mart discriminated against them. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  Coming to you from California all week.  First

on the docket tonight, Scott Peterson in his own words.  Just hours after

his wife was reported missing on day 13 of the trial, prosecutors played a

portion of an interview that Detective Al Brocchini did with Peterson in

the early morning hours of Christmas Day, 2002, the morning after Laci was

reported missing.  Brocchini was the first detective to arrive at the

Peterson home.  He prefaced the video by saying that Peterson was—quote

·         “calm, cool and relaxed when he first met Peterson at the home.”  So, what did Peterson say that night?  Let‘s go to the courthouse and MSNBC‘s Jennifer London.

Hi Jennifer.

JENNIFER LONDON, MSNBC CORRESPONDENT:  Hi Dan.  Well, Brocchini mainly focused on that taped interview.  As you mentioned, the prosecution playing portions of that taped interview with Brocchini and Scott Peterson.  Brocchini really focusing on the beginning part of Christmas Eve, what did you guys do, how did the day start out?  Scott explained that he decided to go fishing that morning, saying it was a morning decision, he thought it was too cold to go golfing, so he decided to go fishing. 

Scott Peterson saying in that interview that Laci was going to mop, she was going to walk the dog and do a little shopping for some food.  Peterson then described how he went to the Berkeley Marina.  Then when he got home to the house, Peterson says he returned home, he saw the dog in the backyard dragging its leash around.  He ate some pizza, he drank some milk, he washed his clothes, he took a shower, then he called Sharon Rocha asking where Laci was. 

Now, during this interview, I should mention it was almost about 60 minutes, Scott was very calm, his voice was very steady, he really showed little to no emotion.  Now, at one point Brocchini saying Scott, one thing that‘s troubling me, is about this mopping.  Brocchini saying the housekeeper was there the day before, the house was probably clean.  Why was she mopping?  Brocchini saying—quote—“Why was your wife mopping on Tuesday morning?”  Scott Peterson saying she was facetious with the dog and cat.  She always had the vacuum and mop out.

Brocchini—so that wasn‘t unusual?  Scott Peterson saying no.  Now remember, the prosecution claims that Scott Peterson killed Laci in the house and was cleaning up, that‘s why when detectives arrived at the house on Christmas Eve, the mop was out.  And Dan, as I mentioned, during the interview, Scott was very calm, he was very collected, he didn‘t even mention Laci until the very end of the tape.  Now after lunch, Brocchini back on the stand talking more about Scott Peterson and he described one particular point, that on 12/25 Scott Peterson called Brocchini to say, hey, how is the search of Dry Creek going? 

And Brocchini saying, well, we‘re doing a grid search.  We‘ve got dogs, divers, helicopters, and Brocchini said Scott Peterson asked him, well are you using cadaver dogs and Brocchini saying, well, we hadn‘t considered Laci to be dead yet, so no, we‘re not using cadaver dogs.  Dan, Brocchini is still on the stand. 

ABRAMS:  Yes and this is the same detective who we expect the defense team is going to say at the very least, bungled evidence, possibly even planted evidence, so the cross-examination could get very interesting of Detective Brocchini. 

All right, Jennifer London, thanks a lot. 

With Detective Brocchini‘s testimony today, the keys to the prosecution‘s case, again, Peterson‘s alibi and his behavior shortly after Laci was reported missing.  And on the stand today, the detective testified that Peterson bought fishing lures that were never used, purchased on December 20.  Why is that significant?  Well Peterson said he used lures, not bait to fish on Christmas Eve. 

Let‘s bring in our legal team for today.  In New York, criminal defense attorney and MS—and NBC legal analyst Rikki Klieman, former New York City homicide detective Bo Dietl, and in the courtroom today former San Mateo County prosecutor, Dean Johnson. 

All right, Dean, since you were in there, you know what do you get the sense of from this interview with Scott Peterson?  I mean it seems at certain points that it got a little testy between Brocchini and Scott Peterson.  Let me just read one interchange here.  Brocchini says what concerns me most is the fact that your dog came home on a leash.  Suggesting that, you know, the dog had just been left out there.  Peterson says what concerns me most is doing anything I can do to help the process.  I‘ve asked you a couple of times what to do.  Did it seem like a confrontational interview? 

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Well, it seemed like a sort of a classic interrogation technique on the part of Detective Brocchini, although not very well executed.  He spent about 45 minutes in a very friendly conversation, essentially gathering information and then right at the end as they‘re concluding the interview, Brocchini goes on the attack and says look, Scott, there are three or four things that concern me and he starts listing all of these things.  Some of them Brocchini was completely wrong about, but some of them Scott responded to rather testily and said you know why are you concerned about all of these things?  In effect, why aren‘t you out looking for my wife?

ABRAMS:  Bo Dietl, what do you make of that technique? 

BO DIETL, FMR. HOMICIDE DETECTIVE:  Well you know there‘s all types of techniques that detectives use.  A lot of times you know the answers to the questions before you ask them and then you like to trap somebody up and you get them in conflicting testimony and all of that.  The real thing that is real troublesome here in this whole case is the lack of the blood in that house.  You know when—if they did it properly, the forensic search of that house, because I can‘t understand, if he murdered her in that house...

ABRAMS:  Wait a sec.  But Bo, what if she was strangled or what if she was suffocated, why would there be blood? 

DIETL:  Well, if she was just strangled, but you know my point is if she was stabbed in that house, there should be a lot of blood in that house.  But as far as the detective goes, when he‘s doing this line of questioning with a person, he is a suspect at that time, Scott Peterson immediately.  You have to then eliminate him as a suspect and your line of question will go from all the questions that you know the answers already and you try to trap him up.  Then his notes are going to be so important with that detective because he‘s not tape recording them at that time, so his notes are going to be very important, what he wrote down on his personal notes...

ABRAMS:  Yes.

DIETL:  ... and we‘re hoping that he‘s a detective with some experience because that could trap up and the defense could take that and chop him apart if he starts to change his story. 

ABRAMS:  You know Rikki, what I found striking was when I was reading various people‘s notes about what happened today in court, much of the descriptions were nothing new, as expected, but it seems to me that also means that the story Peterson was telling to Brocchini back then is at least pretty consistent with the story he‘s telling today. 

RIKKI KLIEMAN, NBC LEGAL ANALYST:  I think it‘s almost totally consistent and one of the things that he does do is he does say he wants to do something to help find his wife.  One of the things Brocchini does is say, well, what concerns me most is, and then there‘s something else, what concerns me most is, and then finally, what concerns me most is, and at some point Peterson has got to get that if all of these concern him most, maybe none of them are really, really that important, and the best example I can give you, Dan, is the what concerns me most is when you came back home from fishing, that you immediately took a shower and went to wash your clothes.  Well I know when I come back from the beach or when people...

ABRAMS:  Yes.

KLIEMAN:  ... I know who fish come back, that is the first thing that they do.

ABRAMS:  Yes.  But Bo, I think you can sort of dismiss that and just say look, so the detective didn‘t make a great call early on, right? 

DIETL:  Well, you know, again, his attitude, his feeling when you‘re

talking to somebody with you‘re a detective, you get a feeling about when

someone is telling you the truth and when someone is lying to you and just

his nonchalant—his attitude of him not really caring as much as someone

should be caring, you have an eight and a half month pregnant wife, I mean

I would be a little concerned about where my wife is at that point because

·         and also you‘ve got to remember, what the girlfriend had said.  The girlfriend...

ABRAMS:  Yes.

DIETL:  ... had said that she always got tired real fast and she didn‘t walk the dog anymore because she got tired real fast, so that‘s a conflicting statement right then and there...

(CROSSTALK)

DIETL:  ... saying that she‘s going out to walk the dog. 

JOHNSON:  You know Dan—Dan, you know this—usually the confrontation between a homicide investigator and a suspect is a chess game and you got to say that on balance, Scott Peterson won this chess game.  He had some very good explanations for what has been presented even in this trial as suspicious evidence, like the mop by the door. 

ABRAMS:  All right.

JOHNSON:  He said well Laci was going to mop.  The rags in the washing machine, he said he took them out to wash his clothes.  But there was—like a lot of other things in this case, there were interesting points made, but they didn‘t go anywhere.  For example, there was a discussion about white walking shoes that Laci often wore when she went out walking.  You know if those shoes were not...

ABRAMS:  Yes.

JOHNSON:  ... found in the house, very good point for the defense.  If they‘re in the house, very good point for the prosecution. 

ABRAMS:  Yes.  But see...

JOHNSON:  But when asked, Scott said gee, I don‘t know where they are. 

ABRAMS:  See, I just don‘t—I think...

(CROSSTALK)

ABRAMS:  ... I think we can overstate it, though, and suggest that anything that the detective brought up that led to nowhere necessarily helps Scott Peterson as opposed to saying as Bo knows so well, you go down a lot of different routes...

(CROSSTALK)

ABRAMS:  ... when you‘re starting the investigation...

(CROSSTALK)

ABRAMS:  ... and you don‘t necessarily know where it‘s going to lead. 

DIETL:  Dan, he‘s a cool character...

(CROSSTALK)

DIETL:  ... he‘s very cool in the questioning and this guy is a very smart boy. 

ABRAMS:  We‘re going to be back in a minute. 

When would he come back, as the lawyers talk to the juror about whether he‘d engaged in misconduct by having a few words with Laci‘s brother, we now learn he‘s following the coverage of the case.  But the judge has told the jurors not to watch anything, so why didn‘t the judge ask him more about that?  Is this becoming the next O.J. Simpson jury? 

And later, terrorists in Iraq kill a Korean hostage after their so-called demands aren‘t met.  But does this type of terrorist ever expect to actually have demands met.  That‘s not really what they want, is it? 

And a huge class-action lawsuit against Wal-Mart.  Women say they were treated unfairly, but can they really prove it?  How much money can each of 1.6 million women really hope to get?

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, the juror in the Scott Peterson trial had made some brief comments to Laci Peterson‘s brother.  He‘s still on the case, but now we learn there are other reasons he might not be someone who should remain on the jury.  A transcript of his conversation with the judge shows he knows how the trial is being covered.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  We continue with our coverage of the Scott Peterson case.  Today the judge releasing a transcript of a closed door meeting with Laci Peterson‘s brother Brent Rocha and juror number five, after a television camera caught the two having a brief conversation, just exchanging some comments.  Yesterday Judge Delucchi found no misconduct on either part.  Laci Peterson‘s brother even telling the media that they got it wrong.  That juror number five didn‘t use the words “lose today” at the end of the sentence.  Both men interviewed separately said the words were “news today”.  The juror telling the judge he was joking with Rocha after go through security that he was blocking the cameras shot of Rocha and he wouldn‘t make it on TV.

OK, so let‘s even assume that‘s settled, what about the fact that the juror openly admitted talking to friends and family members or at least hearing them talk about the case?  Here‘s an excerpt.

Juror number five:  Yes, I spent the whole weekend going shut up, you know, don‘t worry about it, and in the end it will all come out.  But I‘ve enjoyed listening to the stories.  The court, OK.  Juror five:  They‘ve kind of, you know, not given me full blown, but I guess the big think that everybody‘s mad about is the Court TV lady.  Apparently she‘s not too cool on me, so the yo-yo, peace out.  He‘s suggesting that she said that he had said that.

Let me read you a little bit more about what apparently he knows about what was being covered.  Mark Geragos at one point said there‘s a report in “The Modesto Bee” that says he came up to me and whispered at the podium in my ear.  Did that happen?  Juror number five says and put my arm or touched him or something.  My girlfriend told me that. 

He goes on.  My girlfriend wants to kick the crap out of the Court TV lady.  She apparently said I walked up to him in the courtroom and said yo-yo, peace out.  You mean to Scott Peterson?  Juror five:  To Scott Peterson, yes.

All right, Rikki Klieman, apart from the substance of what he‘s saying, it‘s clear that he‘s following the coverage of this case through his girlfriend, and no one is saying anything about it. 

KLIEMAN:  Well it‘s interesting that the judge did not continue to inquire of him about that.  Certainly he‘s very upset because his girlfriend and others are upset about the Court TV lady, by the way, Dan, not me...

ABRAMS:  Not you...

KLIEMAN:  ... not me.  I want that perfectly clear...

ABRAMS:  Yes.

KLIEMAN:  ... and that the Court TV lady, whichever one she may be, is the person who, as he says, is ripping into him.  Well he‘s getting that from his girlfriend.  Do we know if his girlfriend is telling him about the testimony?  Do we know if his girlfriend is telling him about other commentary that concerns the evidence in the case, which as we know is going on, on TV every single day and night.  Well, we don‘t know and I agree with you that I think there should have been further inquiry because that does create another problem. 

ABRAMS:  Rikki, but the quote I just read, he‘s saying that he‘s listening to their stories.

KLIEMAN:  Well no, he‘s listening to the stories of his friends and relatives is the way I read that...

ABRAMS:  Yes.

KLIEMAN:  ... who have then said to him, oh, listen what they said about you on TV, listen what they‘re talking about you, and so those are the stories.  So it‘s about him as opposed to about the evidence.  But there needs to be more inquiry and clearly there is not going to be. 

ABRAMS:  Dean Johnson, I don‘t get it.  I mean this to me, I am starting to get nervous, looking at what‘s happening in chambers that this is going to become another sort of Simpson case jury where everyone seems to lose focus and you have people watching TV.  I mean the bottom line is in a strict judge‘s courtroom, the judge would say excuse me, your girlfriend is telling you about the coverage on Court TV?

JOHNSON:  Oh, I agree with you wholeheartedly, and let me tell, I had a small epiphany yesterday.  We experienced what we‘re calling Mark—a Mark Geragos moment when Geragos stood up after the judge‘s ruling on the juror and started railing against the irresponsible media and talking about the yo-yo peace out quote and so on and I wondered who that was directed at.  It couldn‘t have been at the jury because the jury wasn‘t there, but it seemed to be playing up to the jury and this makes it fit...

ABRAMS:  Yes.

JOHNSON:  ... perfectly.  It almost seems that he‘s playing up to the jury‘s family who is listening and then passing messages on...

ABRAMS:  Because it has nothing...

JOHNSON:  I think this is a real concern. 

ABRAMS:  Because it has nothing to do with it—he‘s talking about the media‘s irresponsibility.  I‘m sure—look, what I heard almost everyone report is that it sounded like he said lose today...

UNIDENTIFIED MALE:  Dan...

ABRAMS:  ... at the end of the sentence, so it was lose today versus news today, OK...

(CROSSTALK)

ABRAMS:  Go ahead Bo.  Go ahead.

DIETL:  You know what you could do...

(CROSSTALK)

ABRAMS:  Let me let Bo Dietl in.  Go ahead Bo.

DIETL:  ... what they should do is have investigators go in there.  You could take them tapes, you can erase everything, you could find out exactly what he said and you should—you know because this is reminding me of the Martha Stewart jury it‘s the way it‘s shaping up here with that one juror that went on the Martha Stewart case. 

ABRAMS:  You mean after the case...

DIETL:  Yes.  Yes.

ABRAMS:  Yes...

KLIEMAN:  Dan...

ABRAMS:  Go ahead.

KLIEMAN:  ... there‘s also the fact that in the end of this colloquy with the judge, which does become a public record, the juror, juror number five, says can I go out and talk to the media...

ABRAMS:  Yes, exactly...

KLIEMAN:  ... and tell them?  And I just as I‘m reading it going oh my goodness, here is the judge telling him don‘t talk to anyone...

(CROSSTALK)

KLIEMAN:  ... and he wants to get his media moment. 

ABRAMS:  Look, if juror number five‘s girlfriend is watching our program today...

(LAUGHTER)

ABRAMS:  ... and you‘re going to tell your boyfriend what we reported on TV, you can report...

(CROSSTALK)

ABRAMS:  ... you can tell him that I am saying that he‘s got to stop watching the coverage.  If you want to watch it, fine, but you cannot tell him what you are watching.  Now if I see in a court transcript that he told you what I said, it is going to become quite clear to me that we need to get rid of this juror. 

DIETL:  Let‘s test him, Dan.  Let‘s test him.  I think he‘s a punk. 

Let‘s see if he comes back at Bo.

(LAUGHTER)

ABRAMS:  All right.  But, Rikki...

JOHNSON:  I don‘t know if he‘s a punk or not, but he‘s right on the line.  He‘s right on the line now.

ABRAMS:  I mean, but Rikki, we‘re making—I mean I‘m sort of making light of this, et cetera, but I really am stunned by the inaction by this judge and I do mean it seriously when I say that it‘s starting to feel like a little Simpsonesque in the sense that the judge isn‘t running the courtroom and that there seem to be these extraneous things that are happening that are clouding some of the issues that are happening inside. 

KLIEMAN:  Well I couldn‘t agree with you more, Dan, and since you and I shared those Simpsonesque moments, we really can bring them back and think about how those jurors went one by one by one.  Another thing that is telling about the transcript is just how good Mark Geragos is.  He‘s in chambers, he has only one juror in front of him, but he basically became a cheerleader for that juror, in chambers, on the record, saying how bad the media was, that they were 100 percent inaccurate and that he‘s the one who wanted to go off to the presiding judge and get the media an order of decorum and I would bet that juror number five, in fact if I were juror number five, goes out of there saying, hey, that Geragos, he has it all together.

DIETL:  Yes.

ABRAMS:  Unbelievable.  All right, stick around for a minute.  We‘ve got a little bit more to talk about on the Scott Peterson case. 

Remember of course this is the program to turn to for the latest in the Peterson trial.  Log on to our Web site, abramsreport.msnbc.com for breaking trial news. 

Coming up later, another hostage killed by terrorists in Iraq, his body found by American troops, but the demand said that his life could be spared if South Korea had met the terrorists‘ demands.  Is that really true? 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  NBC legal expert Dan Abrams. 

(APPLAUSE)

UNIDENTIFIED MALE:  Dan Abrams—if you ever watch NBC, Dan Abrams is great.  He doesn‘t waste any time.  He‘s got some opinions...

(CROSSTALK)

UNIDENTIFIED MALE:  ... you watch these reporters, all so namby-pamby, but he‘s at the Kobe trial, the Scott Peterson—he follows all this stuff, so get all the inside joke on that. 

ABRAMS:  This is a winnable case for the defense.  This is not a slam-dunk case.

UNIDENTIFIED MALE:  When you say winnable, you don‘t mean he didn‘t do it.  He just...

ABRAMS:  I mean...

UNIDENTIFIED MALE:  ... he could walk.

ABRAMS:  ... I mean that the defense could actually win this case...

UNIDENTIFIED MALE:  Yes.

ABRAMS:  ... and Scott Peterson could walk out of court. 

UNIDENTIFIED MALE:  I mean all the circumstantial evidence seems to point to such bizarre behavior...

ABRAMS:  You see (UNINTELLIGIBLE) if you sort of do it from a common sense perspective...

UNIDENTIFIED MALE:  Yes.

ABRAMS:  ... he was a bad guy.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  We‘re talking about the Scott Peterson case.  We‘re almost out of time.  Dean Johnson who was there. Dean, detective who is currently on the stand is expected to endure a tough cross-examination.  Is the defense team going to say that he planted evidence? 

JOHNSON:  I don‘t think they‘re going to go that far.  Geragos made references to lying and things like that in his opening statement.  It‘s very hard to get a jury to go that far and say that officers deliberately lied.  I think what we‘re going to see right at the beginning of the cross-examination is what has come out recently, which is that the Modesto police regarded this as a homicide and a homicide scene, called in Detective Brocchini very early and they suspected Scott Peterson almost...

ABRAMS:  Yes.

JOHNSON:  ... to the exclusion of all other possibilities from—moments from the time...

ABRAMS:  Yes, but...

JOHNSON:  ... that Laci Peterson was discovered missing. 

ABRAMS:  ... Rikki, I think they have to be really careful before suggesting that this guy planted evidence, because that really starts to smack of O.J. and I think that can be very dangerous and the jury might react in a very negative way to Geragos. 

KLIEMAN:  I totally agree with you.  And what in heaven‘s name did he plant if he were planting?  A hair that is two hairs or two halves of a hair.  If you‘re going to plant evidence, you better do a better job than that. 

DIETL:  You know...

ABRAMS:  Yes.

DIETL:  You know what this reminds me of, Dan...

ABRAMS:  Final word Bo, yes...

DIETL:  ... I was watching Fuhrman there with the other two homicide detectives from the O.J. case and is really disgraceful, one found it, one didn‘t find it.  I mean they make all the detectives when people watch it, they think all the detectives are stun buns like this, but all detectives are not like that.  All detectives are not liars.  All detectives are out there to do a job, a damn good job, and it‘s a shame...

ABRAMS:  Yes.

DIETL:  ... for the guys doing a job out there that they have to have this kind of sense against them. 

ABRAMS:  Rikki Klieman, Bo Dietl, Dean Johnson, great panel, thanks a lot. 

JOHNSON:  Thank you...

ABRAMS:  Coming up, terrorists behead another hostage, a South Korean working in Iraq.  They say they did it because the South Koreans didn‘t give in to their demands, but did that really make a difference?  Aren‘t these so-called demands just pretext for murder? 

And Wal-Mart is America‘s biggest employer, now it‘s facing the biggest private civil rights case ever against an American company, but I‘m concerned that even if they win, the women suing will get nothing and the lawyers walk away with big bucks. 

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, South Korea stands firm, says it will not send troops to Iraq even after terrorists murdered one of their citizens today, but first the headlines.

(NEWS BREAK)

ABRAMS:  We‘re back.  Another hostage held by Islamic terrorists has been beheaded, this one in Iraq.  U.S. soldiers found the body of Kim Sun-il, a South Korean man working as a translator in Iraq.  They found it earlier today.  The terrorists claimed they would release the man if South Korea agreed to withdraw troops from Iraq.  Today, South Korea‘s government condemned the death and said it still plans to send more troops to the region. 

NBC‘s Tom Aspell has the latest tonight from Baghdad. 

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE:  (SPEAKING FOREIGN LANGUAGE)

TOM ASPELL, NBC NEWS CORRESPONDENT (voice-over):  Kim Sun-il moments before his kidnappers beheaded him today.  One of his executioners tells the South Korean government we warned you, your army is not here for the sake of Iraqis, but for cursed America. 

UNIDENTIFIED MALE:  (SPEAKING FOREIGN LANGUAGE)

ASPELL:  Kim, a translator for a South Korean company, was kidnapped on Thursday outside Fallujah.  On Sunday, Al-Jazeera had broadcast harrowing pictures of Kim pleading for his life. 

UNIDENTIFIED MALE:  I don‘t want to die. 

ASPELL:  His body was found this afternoon by a U.S. military patrol on a highway near Fallujah.  It was booby-trapped with explosives, which did not detonate.  In Washington, President Bush condemned Kim‘s murderers. 

GEORGE W. BUSH, PRESIDENT:  They want us to cower in the face of their brutal killings and the United States will not be intimidated by these people. 

ASPELL:  The South Korean government appeared stunned. 

AMB. JANG JAI-RYONG, S. KOREAN DELEGATE TO JORDAN:  I‘m really shocked by this barbarian act, which cannot be condoned under any excuse or any circumstances.

(SOUNDS)

ASPELL:  Kim‘s family at home was devastated. 

(CROSSTALK)

(SOUNDS)

(CROSSTALK)

ASPELL:  The Koreans had refused to withdraw 600 soldiers from Iraq as demanded by Kim‘s killers.  Tonight the South Korean government vowed to send nearly another 3,000 men in August and said that civilians in Iraq should leave immediately.  Kim‘s beheading bore all the hallmarks of Abu Musab al-Zarqawi, the Jordanian militant who U.S. intelligence says personally beheaded American businessman Nick Berg in April. 

LT. COL. RICK FRANCONA (RET.), NBC NEWS ANALYST:  This method of killing, this beheading in the most atrocious manner possible is meant for a visual impact. 

ASPELL (on camera):  Tonight, the U.S. military dropped at least one 500-pound bomb on another suspected Zarqawi safe house in Fallujah, the second air strike aimed at the terrorist leader in four days.

Tom Aspell, NBC News, Baghdad.

(END VIDEOTAPE)

ABRAMS:  This isn‘t the first time we‘ve heard from al Qaeda related terrorists making demands they know will never be met.  Last week Paul Johnson‘s captors said they wanted hundreds of al Qaeda prisoners released in exchange for his life.  Kim Sun-il‘s captors asked South Korea to withdraw troops from Iraq.  But the question, really, are these demands real or just an effort to make political statements. 

Joining me now is counterterrorism expert and MSNBC analyst Roger Cressey.  Good to have you on Roger.  All right, you know look, my sense from learning what I have and I‘ve learned it from people like you over the last few years has been that you know al Qaeda in particular is not really as cause-oriented as they‘re suggesting.  I mean they‘re sort of linking up to this effort as if Iraq has sort of long been their cause when really, what their goal is, is to create Islamic governments in all countries, particularly in the Arab world, and that these demands are really not for real.  Do you disagree with that? 

ROGER CRESSEY, ANTI-TERRORISM EXPERT:  No, Dan, I think you‘re right.  At various points, bin Laden has talked about the cause of Palestinian nationalism, well, he is no more supportive of the Palestinians than Saddam was.  What al Qaeda and its network will do is find any cause they can latch on to that will further their own beliefs that will get them publicity and will advance their own Jihadist agenda and in the case of Iraq, of course, this is one that‘s tailor made for them.  It‘s an invasion of a Muslim country by the United States and its allies and so, they can glum right on to this and use it for tremendous propaganda value. 

ABRAMS:  And they‘re intentionally making demands it seems to me—quote—unquote—and I say—use that word loosely with demands that they know will never be met, right? 

CRESSEY:  Oh absolutely.  What they‘re up to here is not trying to get a political settlement, they‘re not into a negotiation.  They‘re trying to achieve their ultimate demands, which are the withdrawal of U.S. coalition forces from Iraq, and then from the Arabian Peninsula, and an undercut of America‘s commitment to the region.  So, one individual being kidnapped and trying to exchange that individual for a commitment by the North—South Koreans to not deploy troops is simply its false.  It‘s a canard.

ABRAMS:  Because it‘s not about Iraq.  I mean, you know, you hear al Qaeda suddenly suggesting that this is now about Iraq and about U.S. troops in Iraq, and it‘s really, you know, not about that.  Do you think we‘d be having—well, let me phrase it this way.  We would be having the same sort of problems with al Qaeda, it might not have been in Iraq, it might be in Saudi Arabia, it might be in Yemen.  It might be in other places—these sort of problems with al Qaeda would have existed with or without Iraq.

CRESSEY:  Oh, of course.  I think the problem we have right now is some of our missteps over the past year, be it political or security, has created an environment inside Iraq that the Jihadists can take advantage of and that‘s a situation the United States and the coalition finds itself in right now, because we have, in fact, created the very thing we have tried to avoid, a bit of a terrorist sanctuary inside Iraq.  Zarqawi, his network, and other Jihadists who have come in from around the world are using that to do the very thing they wanted to do to us in Afghanistan, which is create casualties, try and create publicity for the Jihadist network all at the expense of the United States. 

ABRAMS:  And in a way, they seem to be using terms and history to their advantage.  For example, we learned from the 9-11 commission that Mohamed Atta was telling people, don‘t worry, you know we‘re going to be going back to the airport, because in typical—or the olden days, so to speak, when someone hijacked a plane, they would take it and they would land it, and they would make demands, and now they‘re kidnapping these people and pretending that that‘s the sort of thing we‘re talking about and it is just so frustrating to me that in a way, there‘s a tendency to buy into it, to believe that they really have this mission, to believe what they‘re saying. 

CRESSEY:  You‘re absolutely right.  You know, terrorism from the ‘60‘s, ‘70‘s, and ‘80‘s was all about state sponsorship.  There were nation states supporting it.  There were political demands that were the end state of the terrorist actions.  You‘re now dealing with non-nation state actors.  That‘s the very basis of the Jihadist movement personified by al Qaeda.  They don‘t have the same type of approach.  They don‘t have the same type of demands.  There‘s—there are far more global, like you said, creating Islamic theocracies, a return to the Calla (ph) fate.  That‘s not the type of thing any country or nation can negotiate. 

ABRAMS:  Yes, yes.  Don‘t believe them when they say, as Roger points out, that they‘re suddenly advocates for the Palestinians or for Saddam Hussein or the Iraqis or whoever. 

All right, Roger Cressey, I think this is an important thing to get out there and I appreciate you coming on the program to talk about it. 

CRESSEY:  Good to see you, Dan. 

ABRAMS:  Coming up, America‘s number one retailer now facing the biggest civil rights case ever against a U.S. company.  The question—can they really prove not just that more men were in management positions than women, but that the reason is because of their gender?  We‘ll ask their lawyer. 

And my “Closing Argument”—why I applaud the medical community for trying to crack down on not so expert testimony.  And last night, I was on “The Tonight Show” with Jay Leno.  Many of you e-mailed in with comments about well, what I was wearing.  Coming up. 

(COMMERCIAL BREAK)

ABRAMS:  Don‘t be surprised if greeters at the world‘s biggest retailer change their pitch from hello and welcome to Wal-Mart, to well, we have some problems here.  A San Francisco federal judge has ruled that a sex discrimination suit filed by six women against the retailer can go forward as a class-action suit.  That means the suit now covers as many as 1.6 million women who worked for Wal-Mart since December 26, 1998, which makes it the biggest private civil rights case in U.S. history. 

In his ruling, District Court Judge Martin Jenkins wrote that statistics largely uncontested by Wal-Mart show that women working at Wal-Mart stores are paid less than men, take longer to enter management, and that the higher one looks in the organization, the lower the percentage of women. 

Now Wal-Mart insists there‘s no pattern of discrimination against its female employees, put out its own statement saying in part that today‘s ruling has absolutely nothing to do with the merits of the case.  Jenkins is simply saying he thinks it meets the legal requirements necessary to move forward as a class action.  And Wal-Mart‘s chairman, Robson Walton, told CNBC the retailer will appeal today‘s ruling. 

(BEGIN VIDEO CLIP)

S. ROBSON WALTON, WAL-MART CHAIRMAN:  We‘ll just have to see what the appellate court says.  We believe that it‘s wrong and that the judge has made a mistake. 

(END VIDEO CLIP)

ABRAMS:  But if the appeals court agrees with the ruling, the class-action suit could obviously cost Wal-Mart hundreds, you know, maybe 100 million, could more, to settle or in a verdict.  The 1.6 million women who could join the suit are now joined together. 

All right, my guest is Jocelyn Larkin, litigation counsel for The Impact Fund, lead counsel for the women who filed the suit.  Thank you very much for coming on the program.  We appreciate it. 

Let me ask you...

(CROSSTALK)

JOCELYN LARKIN, THE IMPACT FUND:  OK.

ABRAMS:  ... a general legal question at first.  I mean look, it sounds like you have the statistics on your side and yet nationwide the statistics show that unfairly it seems, that women are paid less than men in jobs around this country.  If you win this case, does this mean, do you think, that all—I mean, you know if you look at just the statistics, that this is going to affect corporate America everywhere? 

LARKIN:  Well, I think all of corporate America watches what happens at Wal-Mart, and so I think it‘s very significant what will occur in this case. 

ABRAMS:  Can you prove, though, I mean, as a legal matter, you‘re not just going to be able to show statistics, I mean, you can show statistics, but generally you have to show more, and that is show something that indicates that the reason the people were passed over, not because there were more men applying, for example, but that the reason that there are more men in these management positions is because women were discriminated against, how are you going to show apart from the statistics, actual discrimination? 

LARKIN:  One of the key factors is that there are many, many women who are now prepared to come forward and tell their own individual stories and what they say is that their managers told them that they were not appropriate for management.  It was not appropriate for women to be in management, that higher paying, better jobs needed to go to men because they had families to support.  So this is simply—it‘s not simply a matter of statistical evidence.  There are real women with stories to tell. 

The other thing that we know, Dan, and this is very important, is that for years, women have been telling management there was a problem, and Wal-Mart turned a blind eye to what were clear patterns and clear evidence of discrimination across the country.  This is not about one or two bad eggs at a few stores at Wal-Mart, but a consistent pattern throughout the company. 

ABRAMS:  Let me play a piece of sound here.  This is from last April. 

I should make that clear...

LARKIN:  OK.

ABRAMS:  ... from Wal-Mart‘s communications vice-president, Mona Williams. 

LARKIN:  OK.

(BEGIN VIDEO CLIP)

MONA WILLIAMS, WAL-MART COMMUNICATIONS V.P.:  Nine out of 10 of our sores, that there‘s absolutely no difference between what men make and what women make.  In some, men make a little more, women a little more, and we promote women at the rate that they apply. 

(END VIDEO CLIP)

ABRAMS:  All right.  And you obviously believe that statistics belie that.  Here‘s the question that disturbs me about these kind of cases.  You know, when it comes to the money, I am concerned, and I know you work for a nonprofit, but that there are going to be...

(CROSSTALK)

ABRAMS:  ... a lot of lawyers involved here who are potentially going to be making a lot of money and when you‘re talking about 1.6 million women, let‘s even assume you know for a moment, a—what, a $100-million judgment, that‘s still not a lot of money for the 1.6 million women involved here.  What I‘m concerned is, even if you win this case, that the lawyers are going to walk away with a ton of money and that the women are going to walk away with almost nothing. 

LARKIN:  Here‘s the story, Dan.  The judge and the jury will decide what the women are entitled to.  It may be 100 million, it may be much more than that.  The lawyers are not paid, and as you‘ve pointed out, this case is unusual because it‘s being led by a nonprofit.  We don‘t do this for money.  We do this because these are issues that we care about. 

ABRAMS:  Are there no lawyers...

(CROSSTALK)

ABRAMS:  ... though are going to be doing it for money?  I mean put you aside for a moment...

LARKIN:  There are—we have three law firms that are nonprofits.  We are leading the case and there are also four private law firms that are involved in the case as well.  Dan, you cannot take on Wal-Mart if you do not have the resources and that‘s why we have a number of lawyers.  But we don‘t get paid until the judge has decided that the women have been adequately compensated.  At that point, the...

ABRAMS:  Wait...

LARKIN:  ... lawyers will ask the court to pay us for the time that we‘ve spent on this. 

ABRAMS:  Wait.  But I have seen...

LARKIN:  It‘s not about the lawyers being paid first. 

ABRAMS:  I have seen too many class-action lawsuits where people say the exact same thing and then you see what happens at the end of the case and each of the plaintiffs end up with something like $20-something a piece or in this case, maybe $103 apiece and the lawyers walk away with many millions.  How can you guarantee people who are watching that that‘s not going to happen? 

LARKIN:  Dan, these cases are in the federal court, are overseen by the judge.  The judge must approve the amount of money that goes to the women and the amount of money that goes to the lawyers.  If the judge is not satisfied that the women have not been properly compensated, the lawyers are not paid. 

ABRAMS:  Yes.  All right.  But mark my words, I guarantee you that if this case is settled, which it may be, or if there‘s a verdict, the lawyers are going to walk away with a lot more money than any woman involved in this case...

LARKIN:  Dan, you promise me that you‘ll have me back and I‘ll prove you wrong. 

ABRAMS:  All right.  That—mark what I‘m saying.  No woman involved...

LARKIN:  OK.

ABRAMS:  ... in this case will walk away with nearly as much as any of the lawyers who are doing this for profit.  Put you and your team aside because you know, you‘re doing this, I respect the fact that you work for a nonprofit and I put you in a separate category, but we‘ll revisit it. 

(CROSSTALK)

ABRAMS:  We‘ll revisit it.  I‘ve got to run. 

LARKIN:  Yes, Dan I think—OK.

ABRAMS:  Jocelyn Larkin, thank you so much for coming on.  I promise...

LARKIN:  OK...

ABRAMS:  ... we‘ll have you back and talk about this. 

Why it‘s nice to—my “Closing Argument”—why it‘s nice to see medical associations cracking down on not so expert testimony.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, your e-mails on what I wore last night on “The Tonight Show” with Jay Leno.  Some of you not too happy with my choice of clothing.  Be right back.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why it‘s nice to see some professional associations, particularly medical, cracking down on not so expert testimony.  It seems in almost every case you can buy a so-called expert to say just about anything to support a theory.  They‘re part of the reason our tort system is cracking at the seams that medical costs are soaring.  Jurors have become desensitized, I fear, to battling experts.  There are always two sides to even the most one-sided issues.  No objective truths.

Remember in the O.J. Simpson case the so-called expert came in to say that the photos of Simpson wearing the same shoes as the killer were doctored?  Sure, the expert was discredited and disbelieved, particularly after the plaintiffs uncovered more photos of Simpson wearing the shoes seven months before the murders.  But in a different context, a different case, maybe his nonsense would have been believed.  Doctors have created tribunals to consider complaints about expert testimony.

The National Association of Neurological Surgeons, for example, has been disciplining members for providing testimony the organization considers unsound.  If their position is in the minority, for example, they have to say that.  Their guidelines mandate that the doctors rely on more than just attorney summaries of the case and that they be neutral observers, not advocates just based on who hires them.  The American Medical Association now uses erroneous testimony as a basis for discipline, but of course now some of the doctors for hire are fighting back suing the organizations or individuals who criticize them. 

Often these people are people whose colleagues believe are supporting frivolous lawsuits with their testimony.  And then, these same people follow it up by filing frivolous lawsuits of their own.  It is necessary for doctors to answer not just to a jury of lay people, but to their colleagues.  Jurors and judges need help from the real experts and it‘s nice to see some of them taking their lesser colleagues to task. 

I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night in my “Closing Argument” I said I was tired of hearing the administration talking like lawyers when trying to defend their position that Saddam had long established ties with al Qaeda. 

Richard Colony from Jackson, Michigan, “I listened with utter belief in your spin on the 9/11 staff statement how the administration was wrong.  You completely ignore that this was the staff statement, not the commissioners.  In fact, the chairman and his Democratic counterpart, as well as Mr. Lehman have stated that there was no difference between the staff statement and what the administration has stated all along.”

Yes, it was a staff report of the bipartisan commission, and while commissioners have said yes there were contacts and relationships.  That‘s not the point.  The administration is saying there were long-established ties.  The commission report belies it.  It‘s totally misleading and lawyer-like jargon to suggest the report supports the administration position.  I also said it was reminiscing of President Clinton twisting and agonizing over the word is. 

Robert Locke from Sacramento, “Bill Clinton‘s meaning of “is” is not or should not be considered comparable to the meaning of ties, relationships or connections, the words being parsed by Bush and Cheney.  Bill Clinton was intending to dodge hunters who were trying to corner him and damage the office of the presidency.  Bush and Cheney have been intending to justify a war after the fact of their having lied.  It‘s not the words.  It‘s the intent of the words.”  All right, come on.  They‘re both still talking like lawyers. 

From Winston-Salem, North Carolina, Jim Hastings.  “You were on the mark with your comments—let‘s go on to the next one because I want to move on to Jay Leno because we‘re just about out of time.

Last night I was on “The Tonight Show” with Jay Leno and many of you watched including Deirdre from Rhode Island.  And she writes, “I don‘t usually watch Leno, but since you were on, I watched it and it was nice to see you in a semi-different type of clothing.  Don‘t worry, you looked hot as usual.” 

But not according to Jess Woodward, North Carolina.  “That outfit you had on was awful.  It was plain nerdy.  Terrible pants, khaki pants, shlubby jacket, unredeemable especially for a New Yorker...”

I don‘t have time to finish this.  Tomorrow.  See you tomorrow.

END   

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