updated 6/25/2004 1:53:27 PM ET 2004-06-25T17:53:27

Guests: Lisa Bloom, David Cornwell, Dean Johnson

DAN ABRAMS, HOST:  Coming up, live from Los Angeles, fallout from the dismissal of a juror in the Scott Peterson case. 

(BEGIN VIDEOCLIP)

ABRAMS (voice-over):  The juror said he would not have convicted based on what he‘s seen so far.  Are other jurors seeing it the same way?  Should the prosecution have agreed to end the trial now and start over later?

Plus, a hockey fight that was not shrugged off as boys will be boys.  Instead, assault charges filed against an NHL star who left his victim on the ice with a broken neck. 

And an Illinois Senate candidate still reeling over the disclosure of sealed divorce papers, where his actress wife says he forced her to go to sex clubs.  How do sealed divorce papers become public records?

The program about justice starts now. 

(END VIDEO CLIP)

ABRAMS:  Hi, everyone, and welcome to sunny Los Angeles, California. 

First on the docket tonight: day 15 in the Scott Peterson case.  No question today at the courthouse, some mixed emotions the day after.  The day after the man who‘d been a juror, juror No. 5.  He was dismissed. 

Justin Falconer did not buy the prosecution‘s argument so far. 

(BEGIN VIDEO CLIP)

JUSTIN FALCONER, DISMISSED PETERSON TRIAL JUROR:  If you gave me, you know, the information that I‘ve gotten so far and, you know, asked me to go in and deliberate it now, there‘s no way that you could possibly convict him. 

(END VIDEO CLIP)

ABRAMS:  Mixed emotions, because prosecutors have to be breathing a sigh of relief that this person is no longer on the jury, but asking themselves what has gone wrong. 

As Falconer was dismissed, defense attorney Mark Geragos asked for a mistrial.  That would have ended the case and prosecutors would have been forced to file the case again.  Geragos said, quote, “I‘ve got a client who is on trial for his life.  I think it‘s an outrage what is going on in this case.”

The judge denied the request.  But I have to tell you, I think the prosecutors might have been better off throwing in the towel with this jury.  Falconer certainly suggested that not only did he talk to friends and family about the coverage, that he may have discussed some aspects of it with jurors, as well. 

(BEGIN VIDEO CLIP)

FALCONER:  The media attention affected everybody.  And so, I mean, everybody heard about it.  Everybody knew about it, in the jury, I mean.  And so, you know, they were kind of—it wasn‘t like a secret anymore. 

(END VIDEO CLIP)

ABRAMS:  OK.  So I ask, should the prosecutors have just said, “OK, Mr. Geragos wants a mistrial?  We‘re willing to stop the trial right now and start over again.” 

Let‘s bring in our legal panel.  Attorney and court TV anchor, Lisa Bloom; California criminal defense attorney David Cornwell; and in the courtroom today, former San Mateo prosecutor Dean Johnson. 

Lisa, the more I think about this, the more I think the prosecutors should have been willing to say, “You know what?  This jury is just too dangerous for us.  Let‘s take a mistrial and start this case over again.” 

LISA BLOOM, COURT TV:  Dan, you make a great point.  You‘re the first person I‘ve heard say that. 

I read the transcript of Monday‘s hearing with juror No. 5.  It‘s very clear from what he says under oath in chambers that he did discuss the case with the other jurors, as well as his girlfriend. 

As you say, or he at least discussed the allegations against him, his conversation with Laci‘s brother. 

Who knows how much this guy has polluted the jury?  This is a guy who says pregnant women are crazy.  He‘s convinced Scott Peterson is innocent.  God knows what he said to other jurors, and I think it is a good idea if the prosecution just started over.  Unfortunately, it‘s probably a little late for that now. 

ABRAMS:  Dean Johnson used to be a prosecutor in that very office. 

And Dean, I know how hard it would be for a prosecutor to agree to a mistrial request.  I do.  But I‘m starting to think, if this is maybe one of those exceptional circumstances that the next time that a mistrial is requested—and, of course, you know the prosecutors want to make sure that it‘s without prejudice, so they can file the case again. 

But assuming that, if you were the prosecutor, would you have argued with Mark Geragos about having a new—a mistrial?

DEAN JOHNSON, FORMER SAN MATEO COUNTY PROSECUTOR:  Well, you know, as a prosecutor you‘re not supposed to agree to a mistrial.  But in this case, I think the prosecution team might secretly be praying every night for a mistrial.  It would be a terrific advantage for them. 

First of all, this is just about the most pro-defense jury that I have ever seen in my experience in San Mateo County.  Secondly, this case did not get off to a good start for the prosecution.  And thirdly, they have now seen a number of the bombshells that Geragos has laid down, one of which was just laid down a few minutes before the break this afternoon. 

ABRAMS:  Well, we were going to deal with that later.  But now you‘ve got to tell us.  Go ahead, what was it?

JOHNSON:  Well, I didn‘t mean to spring the surprise.  But essentially what—what was laid down just before the break was that Detective Brocchini apparently has admitted to excising from his written police report a paragraph that he dictated, indicating that he knew, from interviewing witnesses, that Laci Peterson had been in Scott Peterson‘s warehouse on December 23. 

This, of course, undermines the hair evidence from the warehouse, undermines the prosecution‘s argument...

ABRAMS:  All right.

JOHNSON:  ... that nobody knew about the fishing boat, and undermines the integrity of Brocchini‘s investigation. 

ABRAMS:  We‘ll get back to that in our next block. 

David Cornwell, sounds like—and I‘m surprised that so far it sounds like two for two, at least pretty much agree with me, that maybe when Mark Geragos asked for a mistrial and said that this jury is essentially corrupted, that the prosecutor should have agreed. 

DAVID CORNWELL, CRIMINAL DEFENSE ATTORNEY:  I don‘t think the prosecutor should have agreed.  How does a bad case get better just by retrying it?

ABRAMS:  You get a better jury. 

CORNWELL:  The prosecution has circumstantial evidence.  No physical evidence, no weapon, nothing tying Scott Peterson to the scene. 

What we learned from Justin Falconer was that the prosecution‘s attempt to construct a case on circumstantial evidence is falling short because the foundation is not in place.  And I think Geragos moved for mistrial solely to preserve the issue for appeal.  He doesn‘t want a mistrial with this jury. 

ABRAMS:  Yes, I know he doesn‘t want a mistrial.  That‘s why I‘m saying that the prosecutor should have said, “Fine, you want a mistrial, we‘ll give you a mistrial.  At least we will agree in your motion.  We‘ll join you, and we‘ll say, you know what?  You‘re right.” 

CORNWELL:  But, Dan, the prosecutor knows they don‘t have any better evidence.  Presumably...

ABRAMS:  It‘s not about the evidence.  It‘s about...

CORNWELL:  Sure it is.

ABRAMS:  No, it‘s not.  It‘s about the way they‘ve presented this case, and it‘s about the jury. 

BLOOM:  Well, they do have better evidence, by the way, and they need to get to that better evidence, immediately, like Amber Frey catching Scott Peterson on tape, admitting that he told her before Laci was missing that his wife was dead, it was going to be his first holidays away from her. 

Get to the point.  I think what juror No. 5 said clearly was, “We don‘t care about yoga instructors.  We don‘t care about suspicious circumstances.  Get to the point.” 

And you know, this is the MTV generation.  They want to get to it. 

They don‘t want a long, drawn-out trial.  That‘s the problem that juror No.  5 isolated.  And for all the nonsense that we heard out of his mouth, he was right about that point. 

CORNWELL:  The dismissed juror also said that he did not...

JOHNSON:  Make no mistake that...

ABRAMS:  Hang on.  Hang on, let David—hang on, Dean, let David.  Go ahead, David.

CORNWELL:  The dismissed juror also said that he did not believe that demonstrating that Scott was having an affair with Amber Frey and that he lied about the circumstances with respect to his wife were sufficient to convict him for murder. 

BLOOM:  Well, he hasn‘t heard it yet.

CORNWELL:  Certainly...

BLOOM:  Certainly he has to have an open mind.  I read the transcript of Amber Frey‘s phone interviews. 

ABRAMS:  Hang on, hang on. 

CORNWELL:  He‘s heard it in opening statement...

ABRAMS:  Hang on, hang on, hang on.  Dean, quickly.  I‘ve got to take a break.  Quick thought, Dean. 

JOHNSON:  Yes.  Make no mistake about it.  This is a case that could be won by either side. 

The prosecution‘s problem is presentation.  Their evidence is buried under so much irrelevant stuff that the jury is just not getting it.  It could be presented in a way where that juror could have come out at this stage and said, yes, I think the guy‘s guilty. 

ABRAMS:  All right.  We‘re going to take a break here.  When we come back, we have got the audiotape of Scott Peterson‘s final phone call to Laci‘s cell phone that was played in court today. 

The first detective to arrive at the Peterson home back on the stand, as Peterson‘s attorney continues the attack, trying to show that police ignored any evidence that didn‘t point to Peterson. 

Plus, NHL star Todd Bertuzzi charged criminally for a sucker punch that broke another player‘s neck.  Does this mean athletes are going to face more criminal consequences for what happens on the field, on the court or on the ice?

And how did sealed, steamy divorce papers of Senate candidate Jack Ryan become public records?  With allegations of sex clubs and voyeurism, are all allegations in divorce papers available to anyone?

Your e-mail, abramsreport@MSNBC.com.  Please include your name and where you‘re writing from.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

JANEY PETERSON, SCOTT PETERSON‘S SISTER-IN-LAW:  To see that juror walk out yesterday and see that he saw that is just such a relief to our family, to see that he‘s sitting in there and he‘s seeing the truth, and the truth is Scott‘s innocent.  He‘s going to walk out the door, we‘re all wasting our time.  And we‘re going to be back here doing this again when we find who did it. 

(END VIDEO CLIP)

ABRAMS:  That is the family of Scott Peterson, talking about that juror who was just dismissed from the case. 

And we‘re talking about the fact that this juror clearly indicating that he doesn‘t buy what the prosecution has presented so far.  I would say in the last segment that I think maybe the prosecutor should have been willing to accept a mistrial and start the case again with a—with a new jury. 

Before I go back to my panel, this is the issue I want to talk about, is this issue of the gender divide.  Because this guy, Justin Falconer, made some comments about women that didn‘t make some women, including Laci Peterson‘s mother, very happy. 

(BEGIN VIDEO CLIP)

FALCONER:  I know this to be true.  I‘ve got to kid myself.  Pregnant women are crazy, and so, one minute, one day, can be couch-ridden and not want to move.  The very next day they‘re up thinking they‘re fat and want to go run a marathon. 

SHARON ROCHA, LACI PETERSON‘S MOTHER:  I think he should have let the court know that‘s prejudiced against pregnant women before he ever took a seat on this jury.  Obviously, if he said all pregnant women are crazy, then he shouldn‘t have been on this jury. 

(END VIDEO CLIP)

ABRAMS:  Lisa Bloom, isn‘t this sort of a red herring?  I mean, look, I‘m not trying to endorse what this guy is saying.  But in terms of ultimately assessing Scott Peterson‘s guilt or innocence, is this issue particularly important, what this juror said?

BLOOM:  I think it‘s important.  I think he and Scott Peterson were separated at birth.  He clearly has bonded with Scott Peterson. 

And look, that comment—that‘s a disgusting, offensive comment.  Laci Peterson, who‘s the only pregnant woman involved here, is, of course, in no way responsible for her own death.  I don‘t know what crazy is supposed to mean in the context of this case. 

I‘ll tell you what‘s crazy.  A guy who promises not to talk about the case with other jurors and then does so.  That‘s what‘s crazy. 

ABRAMS:  Dean Johnson, the jury‘s divided right now, 6-6, is that right?

JOHNSON:  That‘s the gender division.  That‘s correct.

ABRAMS:  And do you think that gender, there‘s going to be some sort of gender divide?  Are you getting—From your assessment of the—of the jurors, and you were there for the jury selection process, is there a possibility that there‘s going to be a divide along—along gender lines?

JOHNSON:  I don‘t think it‘s going to be a divide along gender lines at all.  I think these people are going to assess the evidence.  I think male or female, these are a lot of people who, if anything, lean towards the defense. 

And I don‘t think this gender issue—I think Justin made a number of unfortunate comments yesterday when he was suddenly thrown into the spotlight.  But I think ultimately this is a case that‘s going to be decided on the evidence, and not along gender lines. 

BLOOM:  This is the same guy who said, “Oh, guys lie to get with women.”  When confronted with the issue of Scott lying about his wife being dead.  “Oh, that‘s just what guys do.”

I think that is highly offensive to women.  If I were on the jury having to deal with another juror like that, I‘d have a big problem back there in the deliberations room. 

ABRAMS:  All right.

CORNWELL:  I agree—I agree that it‘s offensive, but I don‘t think it‘s sufficient evidence to commit—convict him of murder. 

ABRAMS:  All right.  No one is saying that that evidence alone is going to be sufficient to convict him. 

All right.  Let me—This is—Let‘s get to what happened today in court. 

We were able to obtain exclusively last month the final tape, the final message, that Scott Peterson left on Laci Peterson‘s answering machine for her cell phone as he was returning from the marina.  That was played by Mark Geragos only moments ago in court today on cross examination of Detective Alan Brocchini. 

Here‘s what it sounds like. 

(BEGIN AUDIO TAPE)

SCOTT PETERSON, CHARGED WITH WIFE AND SON‘S MURDER:  Hey, Beautiful.  I just left you a message at home.  It‘s 2:15.  I‘m leaving Berkeley.  I won‘t be able to get to Vella Farms to get the basket for Papa.  I was hoping you would get this message and go on out there.  I‘ll see you in a bit, Sweetie.  Love you, bye.

(END AUDIO TAPE)

ABRAMS:  It just feels weird to hear that.  All right, Jennifer London was inside the courtroom today, and she joins us live on what happened in today‘s testimony. 

So, Jennifer, more cross-examination of Detective Brocchini by Mark Geragos, right?

JENNIFER LONDON, NBC NEWS CORRESPONDENT:  Yes, and in addition to hearing that tape, a couple of other things came up today, Dan, including Brocchini really being pressed on whether or not he followed up on witnesses who say they saw Laci Peterson at the park the day she disappeared. 

One specific witness that Mark Geragos really, really hounded Brocchini about was a man who said that he saw a pregnant woman walking a golden retriever in the park on 12/24/02.  Mark Geragos asking Brocchini, “Did you follow up on that lead?”

And Brocchini said he did, he spoke with the man.  And the man told him that “I didn‘t see the woman‘s face, and I couldn‘t identify this woman as Laci Peterson.” 

But Brocchini did admit that he did not follow up and show this man a photo of Laci Peterson.  Mark Geragos also asking if Brocchini showed the man a photo of the dog, McKenzie, Brocchini saying no. 

Later this afternoon, Mark Geragos pressing Brocchini about a police report that he dictated first before writing.  Now, this report had to do with Laci Peterson being at the warehouse where Scott kept the boat on 12/23/02. 

Remember, the prosecution says Laci did not know about the boat. 

However, we learned today that someone saw Laci at the warehouse that day.  Laci asked to use this person‘s rest room.  This was not mentioned in the report that Brocchini dictated. 

Mark Geragos saying, “Isn‘t it important that we know that someone saw Laci?”  Brocchini saying yes.  But, again, it wasn‘t in the report. 

And, Dan, Brocchini does appear to be getting rather tired after three days of testifying. 

ABRAMS:  Thanks a lot, Jennifer London, appreciate it. 

Dean Johnson was also in the courtroom today.  You know, Dean, it‘s not to suggest that this cross-examination isn‘t important.  But let‘s even assume for a moment that Brocchini left out certain information.  Let‘s even assume for a moment that Brocchini was sloppy. 

What does that tell us, even if we assume that?

JOHNSON:  Well, I think what it tells us is not just that he was sloppy, but it‘s beginning to look like—and, of course, the defense is going to strongly suggest that some of this was deliberate. 

I mean, we‘ve got the meringue incident.  Now we‘ve got this eliminated paragraph, which, if it were in there, would go to the credibility or the relevance of the hair evidence, of the boat and so on. 

I mean, it‘s just one thing after another that‘s undermining the credibility of this most important witness, which is the prosecution‘s investigating officer. 

I can tell you, I was in the courtroom when Geragos laid this on Brocchini.  I was surrounded by at least three other former prosecutors, and we‘re all sitting there with our mouths open. 

We can‘t believe, first of all, that the investigation was that sloppy.  And it seemed that the prosecution team had not even listened to this Dictaphone tape, which would be inexcusable in my mind. 

BLOOM:  Dan...

ABRAMS:  Ten seconds, Lisa.

BLOOM:  Dan, I think this is a Mark Fuhrman moment.  He admits that he excised from the report the fact that Laci was in the warehouse, where the one piece of forensic evidence linking Laci to the boat was found?  Mark my words.  This is the day this case turns for the defense.  I think this is the biggest thing that‘s happened since the beginning of the case. 

ABRAMS:  All right.  Lisa Bloom, Dean Johnson.  And David Cornwell‘s going to be joining us for another segment. 

Coming up—no, not coming up.  First, remember, this is the program to turn to for the latest in the Peterson case.  Log on to our web site, abramsreport.MSNBC.com for all the latest in the Peterson case. 

Now, coming up, a voice from the shadows, the CIA veteran who ran the agency‘s bin Laden desk says the U.S. is losing the war with al Qaeda, and he explains why.

(COMMERCIAL BREAK)

ABRAMS:  When it comes to terror, the U.S. is fighting the wrong war in the wrong place and helping Osama bin Laden‘s dreams come true? 

That‘s what the one-time head of the CIA‘s bin Laden desk told NBC‘s Andrea Mitchell.  You can call him Anonymous, because his face cannot be shown. 

(BEGIN VIDEOTAPE)

ANDREA MITCHELL, NBC NEWS CORRESPONDENT:  For three years he led the CIA‘s war against Osama bin Laden. 

UNIDENTIFIED MALE:  I genuinely think that we have underestimated the scope of the enemy. 

MITCHELL:  A key secret witness to the 9/11 commission.  This active 22-year CIA veteran says the CIA is losing the war on terror, in part because of the war in Iraq, what he calls a dream come true for bin Laden. 

UNIDENTIFIED MALE:  Bin Laden, I think, and al Qaeda and other of America‘s enemies in the Islamic world certainly saw the invasion of Iraq as a, if you would, a Christmas gift they always wanted and never expected to get. 

MITCHELL:  After hearing his secret testimony, the 9/11 commission said his early warnings about bin Laden, beginning in January of 1996, were not taken seriously. 

CHRISTOPHER KOJM, 9/11 COMMISSION STAFF:  Employee from the unit told us they felt their zeal attracted ridicule from their peers. 

MITCHELL:  In a new book, “Imperial Hubris,” bound to stir controversy, the anonymous author says the U.S. is fighting the wrong war, against terrorists instead of a new form of radical Islam.  He even says, quote, “Killing in large numbers is not enough to defeat our Muslim foes.” 

(on camera) What do you say to those who say that your call for a war against Muslim people is really only going to make the situation worse?

UNIDENTIFIED MALE:  I wonder how much worse the situation can be. 

MITCHELL:  Even if it means civilian casualties?

UNIDENTIFIED MALE:  We should err on the side of protecting Americans first. 

MITCHELL (voice-over):  The conclusions of this veteran CIA man are already stirring controversy with former CIA Colleagues. 

REUEL MARC GERECHT, FORMER CIA MIDDLE EASTERN SPECIALIST:  I think serious damage has been done on al Qaeda.  It is by no means dead.  But I think the Bush administration can rightfully claim some credit. 

MITCHELL (on camera):  The CIA allowed Anonymous to write this book.  He insists although he‘s been sidelined at the agency, he has no axe to grind. 

Andrea Mitchell, NBC News, Washington.

(END VIDEOTAPE)

ABRAMS:  Coming up, a hockey player who sucker-punched another player today charged criminally.  Why are some so angry about that?

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a hockey player who sucker-punched another player is now charged criminally with assault.  First, the headlines.

(NEWS BREAK)

ABRAMS:  Welcome back.  It was one of the most vicious on-ice assaults in the National Hockey League it seemed.  In March, as you see on this tape, a right wing for the Vancouver Canucks came up from behind and sucker-punched Colorado center Steve Moore, breaking his neck.  Moore was hospitalized with serious injuries, including a concussion and deep cuts to his face.  Afterwards Todd Bertuzzi apologized. 

(BEGIN VIDEO CLIP)

TODD BERTUZZI, VANCOUVER CANUCKS:  Steve, I just want to apologize for what happened out there.  But I had no intention on hurting you, and I feel awful for what transpired. 

(END VIDEO CLIP)

ABRAMS:  The NHL suspended Bertuzzi indefinitely, he was fined $500,000 and his team, $250,000.  The Vancouver police launched a 3 month criminal investigation into the incident, and today they charged Bertuzzi with assault, causing bodily harm.  He‘s expected in court on July 9.  It‘s the second time in four years an NHL player has faced criminal charges for something that happened on the ice. 

In 2000, Boston Bruin Marty McSorley slashed the side of another player‘s head with his stick, causing him to suffer a severe concussion.  McSorley was convicted on the charge of assault with a weapon, but just given an 18 month conditional discharge. 

The question, is this the right message to tell athletes in all sports that there‘s a line that cannot be crossed, and if you cross that line you‘re going to be treated like everybody else?  Joined now by defense attorney David Cornwell who defends professional athletes, and former attorney for the NFL and the NFL player‘s association Matt Couloute. 

All right, Matt, let me start with you.  Why isn‘t there a point, or a line that can be crossed where you say this is no longer part of the game, this is no longer just playing within the scope of a game, and is simply criminal?

MATT COULOUTE, FRM. NFL ATTORNEY:  And I think there should be a line.  I think you‘re correct.  I mean, athletes go out on the field and the ice and assume certain risk.  And they don‘t assume the risk that they‘re going to be punched or sucker-punched from behind by a player. 

I mean, I think this is important that he was charged, basically because, if hockey hasn‘t to this point taken the affirmative steps to actually take that type of conduct out of its game, the criminal justice system at some point has to step in and protect the players. 

You can look at it from two point of view.  I used to be a prosecutor and I would hate to prosecute this case.  But to represent athletes now, you don‘t want your player exposed to this type of conduct.  You just don‘t. 

ABRAMS:  David Cornwell, why isn‘t this sending an important message? 

DAVID CORNWELL, DEFENSE ATTORNEY:  I think it‘s sending a terrible message.  Your right, it was a vicious and unfortunate act, but a precondition to criminal liability is intent.  And Bertuzzi committed a criminal act, then every hockey player that throws a punch is involved in criminal activity, and I don‘t think the prosecutor means that. 

Criminal liability is not based on the consequences of your act, it‘s based on the intent.  We have sufficient rules in place, both immediately when an illegal act is committed, a player is penalized, and thereafter, the commissioner has the right to penalize a player further.  That‘s what happened here.

ABRAMS:  But the law is not always about intent.  For example, reckless conduct.  Manslaughter cases, for example.  There, you‘re not talking about specific intent to do something.  Basically the law simply says if you behave in a way that an ordinary person would know would cause serious harm to somebody else, you can be held criminally liable. 

CORNWELL:  It says reckless disregard. 

ABRAMS:  That hit isn‘t reckless disregard? 

CORNWELL:  If it is, then every other punch that is thrown in a hockey game is also reckless disregard for the well-being of another human being, and, therefore, a criminal act.  And I‘m certain that the prosecutor doesn‘t mean that.

COULOUTE:  But, David, isn‘t that what we‘re talking about?  We‘re talking about a sport that has a culture, or bred culture of violence.  In essence, what we‘re trying to do is basically say there are certain types of conduct that are out of bounds and are so reckless that there should be criminal punishment for them.  We know that he didn‘t intend to cause that type of damage to him.  But that punch was so reckless in that context that he should be prosecuted for it.

CORNWELL:  It can‘t be reckless in that context, as you say, and be the basis for criminal liability.  Reckless disregard means that any time you engage in that specific act it is likely to result in injury.  In that case it means every time a hockey player throws a punch, they are engaged in criminal activity, and they cannot mean that. 

ABRAMS:  David, let me ask you this, what do you make of the McSorely case that we just talked about, where the Boston Bruin used his stick to hit another player on the head?  Different case to you, or same problem? 

CORNWELL:  Same problem.  It‘s the same problem. 

ABRAMS:  Even with a stick? 

CORNWELL:  Absolutely.  It‘s a slippery slope, but it‘s something that happens in hockey games and it‘s something that the rules of hockey and the power of the commissioner are unable to police against.  And if you want to take it further, if this is a criminal act, then why did they indict the National Hockey League for condoning a criminal enterprise? 

ABRAMS:  Let me ask you this.  What about a baseball player who is getting ready to go up to bat and uses his bat to strike a pitcher who hits the batter whose being pitched to?  Either the pitcher hits the batter with a pitch, the guy‘s on deck, comes up with his bat and hits the pitcher.  Do you say the same thing there?  You know what, just part of the game? 

CORNWELL:  I think that‘s a closer question.  And the reason I think it‘s a closer question is that hitting somebody with a bat is not part of the game.  It‘s not something that happens every time.  The problem that I have here...

ABRAMS:  Hitting someone in the head with a stick is not part of the game. 

COULOUTE:  But, David, that...

CORNWELL:  The problem I have here is distinguishing Bertuzzi and McSorely‘s conduct from the conduct of other players on the ice that are not charged with criminal offenses. 

ABRAMS:  Matt, I‘ve got to give Matt the final word here.  Go ahead, Matt.

COULOUTE:  That, in essence—therein lies the problem in David‘s—in actually what he said.  Basically the problem is you expect or accept the fact that throwing a punch in a hockey game is acceptable, and there‘s the problem, and that‘s why it should go to the criminal justice system at that point.  The hockey league is not taking no firm steps.

ABRAMS:  Very quickly, Matt.  So you would think—using David‘s logic, you would think that any punch you should be able to charge someone criminally. 

COULOUTE:  You know, I wouldn‘t go that far.  But it comes to the point where they have to clean hockey up.  And if those damages are going to be caused—his career, Moore‘s career could be over at this point in time.  It needs to be cleaned up. 

CORNWELL:  The criminal justice...

ABRAMS:  I‘ve got to wrap it up.  David Cornwell, thanks for joining us, and Matt, good to see you again.  Thanks a lot. 

COULOUTE:  Thanks for having me. 

ABRAMS:  Coming up, does the public have a right to know about a Senate candidate‘s private life, including alleged sex club visits detailed in divorce papers that were supposed to be sealed?  And lots-o-emails on my interview with the juror formerly known as juror No. 5 in the Scott Peterson case. 

Kicked off of the case.  Came on the show.  As many of you furious at him, as at me.  I‘ll respond coming up. 

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  When a couple gets divorced, the messy details they‘re generally supposed to stay private between a couple, the court, their attorneys.  Many states seal court documents relating to divorce to make sure those details stay out of the public eye.  But was once the information is on paper—hang on, let me wait for that to pass for a minute.  All right.  Now you can hear me.  Once it‘s on paper, can you really count on it staying secret?  Look at the record, the “National Enquirer” cited divorce papers in 2002 when it alleged Soprano star James Gandolfini was accused of using drugs, carrying on affairs, they said with several mistresses.  Former Senator Edward Brooks‘ career ruined after unsealed divorce court papers revealed that there were allegations he lied about a $50,000 loan.  And the latest example, the “Chicago Tribune” and a Chicago TV station recently sued and won a case that saw a California court unsealed documents with some very personal details about Illinois Senate candidate Jack Ryan‘s divorce from actress Jeri Ryan. 

MSNBC‘s Kevin Tibbles has more.

(BEGIN VIDEOTAPE)

JACK RYAN, IL. SENATORIAL CANDIDATE:  Once again, I‘m sorry to disappoint you, but I‘m not going to reopen those discussions.  It‘s not helpful.

KEVIN TIBBLES, MSNBC CORRESPONDENT:  Jack Ryan, the Republican Senate candidate from Illinois says he will not discuss allegations he insisted his then wife, Jeri, visited explicit sex clubs in New York, New Orleans, and Paris.  Ryan, a first-time candidate made millions as a banker before quitting to teach underprivileged kids.  His ex-wife, Jeri, is an actress who appeared in the Star Trek Voyager TV series, and Boston Public. 

JERI RYAN, ACTOR:  Ground rules.  No one is to know. 

TIBBLES:  She made the sex club allegations in court documents from a 2001 custody battle over their son.  A California judge ordered those documents released this week over the strenuous objections of both Ryans. 

JACK RYAN:  It‘s amazingly destructive to democracy. 

Can you imagine the standard for politics is that everybody has to release their custody documents? 

TIBBLES:  In court documents Jeri Lynn Ryan describes her husband taking her to a New York club.  I refused to go in, she says.  It had mattresses in cubicles.  Then they went to another location, a bizarre club with cages, whips and other apparatus hanging from the ceiling.  And he wanted me to have sex there with another couple watching.  I refused, she testified.  At a club in Paris, people were having sex everywhere.  I cried and was physically ill.  According to Jeri Ryan, Jack became upset with me.  He said it was not a turn-on to cry.  Those same court documents show Jack Ryan, calling the allegation ridiculous.

(on camera):  But while stories of sex clubs may be politically damaging enough, some say the Republican party in Illinois is also upset because these allegations have taken it by surprise. 

(voice-over):  “Chicago Tribune” political writer Rick Pearson say many Republicans feel betrayed. 

RICK PEARSON, “CHICAGO TRIBUNE”:  These Republicans feel that he had not been truthful or forthcoming, and they feel that both themselves and the voters, the Republican voters of Illinois, may have been lied to. 

TIBBLES:  On the streets, Illinois voters are taking the story in stride. 

UNIDENTIFIED FEMALE:  That‘s his private life.  and a lot of people who are judging, they do a lot of kinky things, too.  So, that‘s his business. 

UNIDENTIFIED MALE:  A lot—the problem is not so much what he did, it‘s that he didn‘t tell people.  He reassured people there were no problems, obviously, this is a problem. 

TIBBLES:  Ryan‘s Senate opponent Democrat Barack Obama, refused to comment on the allegations.  As for Jack Ryan, he claims he can continue to be the Republican candidate for Illinois‘s open Senate seat.  Adding for the sake of his 5-year-old son he won‘t comment further. 

JACK RYAN:  What dad wouldn‘t try to keep information about your child that might be detrimental to the world knowing private? 

TIBBLES:  For her part, Jeri Lynn Ryan released a statement in which she makes no mention of the allegations, but she wishes her former husband luck and she thinks he would make an excellent senator. 

Kevin Tibbles, NBC News, Chicago. 

(END VIDEOTAPE)

ABRAMS:  Jack Ryan isn‘t the only candidate in this race to be burned by sealed divorce court papers.  Brian—Blair Hull was an early front-runner for Democratic nomination.  Unsealed divorce papers revealed allegations that he had allegedly struck his ex-wife and threatened her.  He lost the nomination after those records became public. 

Joining me now to discuss all this is famed divorce attorney Raoul Felder. 

RAOUL FELDER, DIVORCE ATTORNEY:  Hi, Dan. 

ABRAMS:  All right, Raoul, explain to us generally, I mean, aren‘t divorce papers supposed to be secret? 

FELDER:  Yes.  Generally in America, Divorce papers are sealed.  In some states you can even get them super sealed, like in New York, where you could get a ribbon and a seal put on them and all that.  You can‘t stop, as you know Dan, the first amendment, you can‘t stop people from talking.  You can‘t stop a lawyer generally from disseminating papers from his own office.  But you can—and it is the law in most of these states, that the court can‘t release documents.  Now, what happened here, unless this is a very powerful Democratic judge or something like this, both parties did not want it released and the judge released it anyway.  It serves no purpose.  One of the reasons they‘re sealed is to protect children.  It can only embarrass this 5-year-old child.  There is no redeeming reason.  There‘s no overriding reason why this should have happened.  This is a shabby situation, whether you‘re a Republican or a Democrat.  It‘s a shame for Illinois that this kind of thing can happen. 

ABRAMS:  And Raoul, can it happen in other—do people have to worry that what their spouse writes about them in divorce papers is going to be used against them in some other context, for example, applying for a job or some other way? 

FELDER:  Well, applying for a job, I don‘t think so.  but generally speaking, you make a deal with the devil when you run for office.  But this is below the belt kind of stuff.  And the sad part is that, of course, you‘re right, somebody is going to leak it somewhere.  An angry ex-spouse, a judge‘s secretary.  When you think about it, the papers that are sealed, there are dozens and dozens of these copies out there floating there.  And it‘s sad, because very often, (UNINTELLIGIBLE) are made in divorce case, as here, and they are denied.  And, yet, it‘s public knowledge today. 

ABRAMS:  Raoul, I know a question you must get a lot.  If someone reads the court papers from their spouse and they say this is complete and total lies, and they then ask you, all right, can I sue him or her for what he or she is saying in these court papers about me? 

FELDER:  Well, you know, Dan, the easy answer is no.  But there is a little niche.  It is a privilege, but I think the cases say it‘s a qualified privilege.  So that if it‘s really out of the ballpark, if you put in papers 16-years-ago he ran a house of prostitution before they were married, that‘s something that I think where you could begin an action.  Because the privilege doesn‘t cover that.  But generally speaking, no.  Once you put it in court, they put the stamp on it, you can‘t do anything about it. 

ABRAMS:  A lot of weird sex allegations in all these divorce cases? 

FELDER:  Well, you know, people fight with whatever means they have. 

The poor lawyer is in the middle.  The poor lawyer doesn‘t know if the client‘s telling the truth or not.  You can‘t make him take a lie detector test.  So, if it‘s pertinent take the case, the lawyer puts it down and you see this kind of thing happen. 

ABRAMS:  Do you ever think about the children, though?  I mean, don‘t people say, you know what?  Do lawyers ever say, come on, this is bad for the children.  Boy, do we really need to get all this detail out there? 

FELDER:  You know, I think lawyers say it every day of the week.  But then the client says, but wait a second, this is a custody case, and this is pertinent as far as the kids are concerned.  And so you‘re stuck in the middle there. 

ABRAMS:  Raoul Felder, thanks for coming back on the program. 

FELDER:  Thank you, Dan.

ABRAMS:  Good to see you. 

Coming up.  Why only now is the Saudi Royal Family now seemingly cracking down on al Qaeda?  That‘s my “Closing Argument.” 

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument.”  Why does it feel like only now are the Saudis getting serious about cracking down on al Qaeda? 

Three years after we learned that 15 of the 19 hijackers were Saudi.  Since the Saudi Royal Family has been claiming that the U.S. and Saudi Arabia are in it together.  That this is our war on terror.  And yet, it didn‘t really feel that way until the terrorists started hitting the Saudis hard at home.  Until more of the quote, “Arab street turned against al Qaeda.”  And until its billions in oil revenues were threatened by the murder of Western here‘s keep the oil fields running.  While, the Saudis started showing some resolve, yesterday the crown prince made it official. 

But their idea of getting tough seems to be a negotiation of sorts.  Crown Prince Abdullah seemed to be offering a limited amnesty to any quote, “Militants who turned themselves in within 30 days,” saying they will not face death penalty and will only be prosecuted if they commit acts that hurt others.  Now the Saudi press machine saying that‘s not what they said.  That they said they would guarantee their safety and a fair trial.  That‘s all.  To those who ignore the offer the prince said, “We swear by God that nothing will prevent us from striking with our full might.” 

Whether or not amnesty was offered, no dangerous al Qaeda fighters are really going to accept the offer.  More importantly, the crown prince makes it sound like this is a new issue facing their nation.  That they will finally strike with all their might next month after the 30-day period is over. 

So, what have they been doing until now? 

This sort of resolve is long overdue.  Their newfound tenacity is a welcome development in the war on terror, but it‘s unfortunate that it is really new and a development. 

All right, I‘ve had my say.  Now, it‘s time for “Your Rebuttal.”  Last night on the program, my interview with former juror number five Justin Falconer, who was dismissed from the Scott Peterson case saying he would not convict Peterson given the evidence thus far. 

Said the defense attorneys, I said the defense attorneys are sorry he‘s not on the case anymore. 

Richard Francis, from Anna Maria, Florida.  “Your comment to Mr.

Falconer how sorry the defense attorneys will be that Mr. Falconer is off

the jury was condescending and uncalled for.  I think he would have

rendered a verdict based on the evidence presented”

Come on, there‘s no way Falconer would have convicted Peterson even if the prosecutors could prove everything they laid out in the opening statement.  Justin Falconer also took some questions from our legal team, some of you didn‘t think they were fair. 

From Huntington Beach, California, Nancy McWillaims, “Your experts seem to believe that the evidence presented to date should be sufficient to produce a guilty verdict.  Come on, no one could ever be found guilty with only the info presented so far.  It was truly disgusting.” 

Ralph Lowe, from Henderson, Arkansas.  “This juror said that Scott was innocent right now until proven guilty.  What is wrong with that?”

And from Point Pleasant, New Jersey, Jack Curry, “I find it amazing that a 28-year-old layman like Juror No. 5 is so much more objective than actually officers of he court like your panel.  Thank God he feels he should hear all the evidence and not convict on an opening statement, like some of your panel seem to have done.”

OK, let me respond to all of you.  He went further than that.  He made it clear that looking at all—based on all the interviews, that even if the prosecutors could prove everything they claimed in opening statements, he would not have convicted. 

Then there was other side from Mountain View, California, Suzanne. 

“Juror no. 5 is no applying any basic logic skills to his assessment of the prosecution‘s case.  He seems to accept a series of pretty incredible ‘coincidences‘ without question.  I certainly hope that the remaining jurors are more discerning than Juror no. 5.

Karin Busch, in Sacramento, California, “The term rush to judgment is generally thought of from the prosecution point of view.  However, it is clear that Juror no. 5 has rushed to judgment in favor of Scott Peterson.”  

From Oklahoma, Julie Karpio, “I would bet money that if Peterson told him he did it, he would find an excuse for him.  This guy is off the wall, his mind is closed and there is nothing that would make him vote Scott guilty.

Falconer also said that he believed that Peterson treated Laci well, what about his girlfriend ask Joe Casorus (ph) in Milwaukee, Wisconsin.

“The defense clearly state in their opening argument that Scott Peterson is a serial liar and adulterer and he still believes he treated her well?” 

Carla Curran, from Canton, Ohio, “Apparently California is the place to go on trial for murder!  First, the Simpson trial and now this fiasco.  It sounds like he found a reason or excuse for everything the prosecution has presented so far.  Let‘s hope the jurors do understand and don‘t identify so much with Peterson.”

Finally last night I said that maybe the Judge Delucchi wants Tuesday‘s program.  Remember after the transcripts of the judge‘s interview with Falconer were released, I said I couldn‘t believe the judge was allowing him to stay on the case even though Falconer admitted he talked to friends and family about some of the media coverage.  The judge seemed to ignore that comment on Monday until I highlighted it on the show. 

John Sexson inform us another talk show host is trying to take credit.  “I was wondering who had input into the juror being dismissed.  Dan mentions on the show maybe the judge was watching his show last night.  However, O‘Reilly is blowing that he was the one responsible for the court deciding to dismiss the juror.  I would believe Dan has a little more credibility than O‘Reilly.”

Thanks, John, I appreciate it.  That‘s all the time we have for today.  Don‘t forget, e-mails, abramsreport@msnbc.com.  Please include your name and where you‘re writing from. 

Coming up next “HARDBALL WITH CHRIS MATTHEWS.”  Filling in tonight, is Campbell Brown.  I will see you back at our MSNBC studio‘s tomorrow.  You know what that means, a long flight tonight.  See you then.

END   

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