updated 6/28/2004 10:44:22 AM ET 2004-06-28T14:44:22

Guests: David Bossie, Julian Epstein, Lucy Dalglish, Lisa Pinto, Jeff Benedict, Jayne Weintraub, John Burris

DAN ABRAMS, HOST:  Coming up, Michael Moore‘s movie, “Fahrenheit 9/11,” hits theaters nationwide today. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  The movie is intentionally anti-Bush.  But could its advertisements accidentally violate the law? 

Sealed transcripts about Kobe Bryant‘s accuser‘s sexual history accidentally released to the media by the court.  Now the judge tries to take it back.  Can he do that? 

Not a good week for the prosecution in the Scott Peterson trial, from a dismissed juror to bombshell testimony from one of the lead detectives.  Can the prosecution turn this case around? 

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi, everyone.  First up on the docket tonight, Michael Moore‘s controversial new movie, “Fahrenheit 9/11” opens in theaters nationwide today.  It is an all-out attack on the Bush administration‘s police and while the controversy has been brewing for months now, a new question—could promoting the film be against the law? 

(BEGIN VIDEO CLIP)

GEORGE BUSH, PRESIDENT OF THE UNITED STATES:  This is an impressive crowd, the haves and the have mores. 

(END VIDEO CLIP)

ABRAMS:  The conservative group, Citizens United, says the film‘s ads featuring President Bush will violate federal election laws if Moore‘s promoters continue airing them on television or radio after July 31.  Now, the film leaves no question about who the filmmaker, at least doesn‘t like for president. 

(BEGIN VIDEO CLIP)

BUSH:  I call upon all nations to do everything they can to stop these terrorist killers.  Thank you.  Now watch this drive. 

(END VIDEO CLIP)

ABRAMS:  Citizens United filed a complaint with the Federal Elections Commission explaining—quote—“broadcast advertisements for the film which include visual images and sound clips of President George W. Bush qualifies electioneering communications under FECA if they are broadcast within 30 days prior to the Republican National Convention or 60 days prior to the general election.  Michael Moore says the Republicans are just trying to suppress his movement. 

(BEGIN VIDEO CLIP)

MICHAEL MOORE, FILMMAKER:  It‘s a violation of my First Amendment rights that I cannot advertise my movie.  It‘s a movie. 

(END VIDEO CLIP)

ABRAMS:  Joining me to debate this is David Bossie, the president of Citizens United, the group filing the complaint against Michael Moore and democratic strategist and attorney Julian Epstein.  Gentlemen, thanks very much for coming on the program.  Let‘s do our best to avoid some of the complexities of the campaign finance law here because it can get pretty complicated.

So Mr. Bossie, let me start with you.  To a layperson, it does sound like your group simply doesn‘t like the movie and you want to do anything you can to have as few people see it as possible.  Explain in lay terms what the argument is. 

DAVID BOSSIE, PRES., “CITIZENS UNITED”:  Well, first of all, we went to the Supreme Court to fight against McCain/Feingold, the brand new campaign finance law that Michael Moore has to follow just like anyone else.  And that‘s—our point is that Michael Moore is not above the law and I have to follow the rules of McCain/Feingold, the new campaign finance law, and what we‘re saying is we can‘t use the images of federal candidates 30 days before the conventions or 60 days before the general election, and neither can he. 

The federal election law doesn‘t specify whether it‘s for a movie or not, and as a matter of fact, yesterday the Federal Election Commission stated—the General Council stated that he believed that documentaries would not meet the press exemption which is the only exemption to the finance law.  And they also said that another documentary, which asks for an advisory opinion, stipulated that using photographs of federal candidates was electioneering communications...

ABRAMS:  All right...

BOSSIE:  ... therefore, it even strengthened my case even more.

ABRAMS:  Let me read from the complaint.  The broadcast advertisements referenced in this complaint do not fall within FECA‘s press exemption.  None of the ads qualify as news stories, commentaries or editorials that are distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publications.

Julian, what do you make of it? 

JULIAN EPSTEIN, DEMOCRATIC STRATEGIST:  This is an odd—a very, very odd and strange complaint.  Because even David would agree that the ads for the movies today are perfectly legal.  The only time when there‘s a question about the ads is during the blackout period, which is—starts effectively August 1. 

So today until August 1 nobody would say that the ads are illegal. 

BOSSIE:  That‘s exactly right. 

EPSTEIN:  OK.  So for David to be filing a complaint against ads that are today legal seems a little bit odd.  Now...

(CROSSTALK)

EPSTEIN:  ... it‘s very easy—lawyers will debate, if I can finish my point...

ABRAMS:  Let him finish...

EPSTEIN:  Lawyers will debate whether or not Congress intended the blackout period to cover ads for movies.  Lawyers will have that debate.  But it‘s very clear to me what the Michael Moore people will do as of August 1, was they‘ll continue the ad for the movie.  They‘ll just simply take Bush‘s picture out and substitute Rumsfeld.  So the notion that you would file a complaint about something before it‘s even mature, when the film‘s producers can easily fix it, so it‘s not—there is no question about it, seems to me to be a publicity stunt. 

ABRAMS:  Go ahead David...

BOSSIE:  Well, Julian, I think that that‘s a little ridiculous.  You know that the Federal Election Commission takes 60 to 90 days just to rule on most matters.  As a matter of fact, it‘s 60 days before you usually hear back from the Federal Election Commission.  So we‘ve given them 35 days—only 35 days to answer this complaint that we have filed, and so I don‘t think that it‘s a publicity stunt.  And let me explain this to you. 

If they change the—their ads and take President Bush‘s photographs out of them without using his image, likeness or voice, or the vice president or Byron Dorgan or any other federal candidate, they can continue to run these ads until they‘re blue in the face...

EPSTEIN:  David, how do you know that they‘re not going to do that? 

(CROSSTALK)

EPSTEIN:  I mean you‘re making a complaint based on - you‘re predicting...

BOSSIE:  Julian...

EPSTEIN:  ... what they‘re going to be doing as of August 1 and ads for movies typically change during the course of a movie.  You‘re making a complaint based on what is an unsettled area of law, but predicting what you think the filmmakers are going to do a month from now...

(CROSSTALK)

EPSTEIN:  ... seems to me a little bit odd. 

(CROSSTALK)

BOSSIE:  Julian, we know what the McCain/Feingold says...

ABRAMS:  David, let me read you a statement...

(CROSSTALK)

ABRAMS:  Hang on.  Let me just read a statement...

UNIDENTIFIED MALE:  ... going to make a decision...

ABRAMS:  Let me read a statement from Michael Moore on this and David, I want you to respond to it.  Michael Moore says, I am deeply concerned about whether or not the FEC will think I paid Citizens United to raise these issues regarding “Fahrenheit 9/11”.  How else can you explain the millions of dollars of free publicity this right-wing group has given the movie?  I plan on sending them a nice holiday card this year.

(CROSSTALK)

BOSSIE:  That‘s humorous, but I can guarantee you one thing—I weighed the issue of giving them some publicity and I got to tell you, giving them 24 hours of publicity while we‘re talking about this complaint, weighed against having to have them take these ads off the air if we win this complaint, if we come out on the winning side, in my opinion there is no contest.  I will trade that any day of the week. 

EPSTEIN:  Well...

ABRAMS:  So that‘s a good thing.  But Julian...

EPSTEIN:  You‘re not—but David let me...

(CROSSTALK)

BOSSIE:  ... no, wait, one second.  The FEC allows a complaint to be filed, allows a complaint to be filed...

EPSTEIN:  And they dismiss...

BOSSIE:  ... for current...

EPSTEIN:  ... complaint...

BOSSIE:  ... for current or possible future violations of...

EPSTEIN:  David...

BOSSIE:  ... the federal election...

EPSTEIN:  ... the FEC said that it was not going to decide on your case so you‘re not going to...

(CROSSTALK)

EPSTEIN:  ... prevail one way or another. 

BOSSIE:  Julian, you‘re wrong...

EPSTEIN:  Yes it did...

BOSSIE:  You‘re absolutely wrong. 

EPSTEIN:  Secondly...

BOSSIE:  You‘re absolutely wrong. 

EPSTEIN:  Secondly, if I can finish the point, it is an elementary rule of communications to Michael Moore‘s point, that the more—this is already a controversial film.  The more controversy you give it by making a filing like this is only going to help the film.  This is a lot like Al Franken suing - a lot like Bill O‘Reilly suing Al Franken...

ABRAMS:  All right...

EPSTEIN:  ... his book shoots to the top of the list.

(CROSSTALK)

BOSSIE:  The legal question on this is very, very unresolved.

ABRAMS: All right...

BOSSIE:  The FEC Commission—one of the commissioners himself said it was an unresolved...

ABRAMS:  We...

BOSSIE:  ... legal issue but it‘s going to be moot because I guarantee you the filmmakers are going to take the president‘s...

(CROSSTALK)

BOSSIE:  ... picture off the ad...

(CROSSTALK)

ABRAMS:  We shall see...

BOSSIE:  ... Julian, you‘re wrong...

ABRAMS:  Let me just—I got to wrap it up.  I just want to play one final piece of sound from Michael Moore, talking about whether he is endorsing John Kerry. 

(BEGIN VIDEO CLIP)

MOORE:  I have not publicly endorsed John Kerry.  I am an independent.  I am not a member of the Democratic Party.  So for them—no offense to anyone here...

(CROSSTALK)

MOORE:  ... but—so for them to try and remove my ads from the television, because I want people to come see my movie, it‘s a blatant attempt on the part of a right-wing Republican-sponsored group to stop people from seeing my movie. 

(END VIDEO CLIP)

ABRAMS:  All right.  David Bossie and Julian Epstein, thanks very much for coming on the program.  Appreciate it. 

Coming up, documents that were supposed to remain secret about Kobe Bryant‘s accuser‘s sexual history released to the media by mistake.  Now the judge tells the press anyone who reports it will be in contempt of court.  I say he can‘t do that. 

Plus, is the prosecution‘s case against Scott Peterson falling apart? 

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, the judge in the Kobe Bryant case releases sensitive documents to the press, now he‘s trying to take it back.  Can the judge tell the media what not to report? 

(COMMERCIAL BREAK)

ABRAMS:  It is arguably the most sensitive part of the Kobe Bryant

case, information about the sex life of the now 20-year-old woman who has

accused the NBA star of rape.  Some of the information contained in 206

pages of documents mistakenly sent to media outlets Thursday.  And get this

·         it came from a court clerk.  It‘s a mistake Judge Terry Ruckriegel tried to fix that same day, but we‘re going to talk about in a minute whether his court order is constitutional.  I think it‘s probably not. 

And as NBC‘s Mark Mullen reports, it‘s not the first time a mistake like this has been made in this high-profile case. 

(BEGIN VIDEOTAPE)

MARK MULLEN, NBC NEWS CORRESPONDENT (voice-over):  This week a defense forensic expert named Libby Johnson (ph) testifying behind closed doors as part of a hearing to determine whether the accuser‘s sexual past should be introduced at trial.  Now comes word, according to a lawyer for Kobe Bryant‘s accuser, transcripts from that closed-door hearing were mistakenly e-mailed to eight news organizations Thursday by it‘s believed a court reporter.  Almost immediately the judge ordered the press not to disclose any of that information. 

LARRY POZNER, CRIMINAL DEFENSE EXPERT:  This could be explosive information but who knows if any media outlet is going to publish it. 

MULLEN:  This is the latest in a series of privacy foul-ups, which have often come at the accuser‘s expense.  For example, along with the results of her rape exam, a Colorado hospital unmistakenly sent unrelated old medical records of the accuser to the D.A., which then passed them along to the defense.  On another occasion, the court failed to black out the name of the accuser on a document, which was then posted on a court Web site. 

POZNER:  We live in the electronic data age.  With the press of a button, information is transferred. 

MULLEN:  Especially in this case where a lack of privacy has already driven the accuser into seclusion.

Mark Mullen, NBC News, Los Angeles.

(END VIDEOTAPE)

ABRAMS And so far, no one that we know of has reported the details of what was in those documents that were sent to them.  The question, though, of course, is can the judge order—you know, he throws it out there, essentially, I mean his office, the court makes the mistake and sends it out there and says all right, now you got it, I‘m ordering you not to report it.  I don‘t think he can do that. 

Joining me now is former New York State prosecutor, Lisa Pinto, and Lucy Dalglish, First Amendment attorney and executive director of the Reporters Committee for Freedom of the Press. 

OK, let me start with you, Ms. Dalglish.  I mean—Ms. Dalglish, it seems to me that you know, the judge is trying to do the right thing here, and apart from the issue of whether the media operations should actually publish it—we‘ll talk about that in a minute—I don‘t think this judge has the authority to do that. 

LUCY DALGLISH, FIRST AMENDMENT ATTY:  I don‘t think he does, either.  You know, a judge can control what goes on in the courtroom.  He can tell the court reporter and the court clerks not to release information.  But one thing that U.S. law has been very clear about for decades is that once the media has the information and they did nothing illegal in obtaining it, you cannot prevent them from publishing it without doing grave harm to the First Amendment. 

ABRAMS:  Lisa Pinto, I mean as a legal matter do you disagree with that analysis? 

LISA PINTO, FORMER NEW YORK STATE PROSECUTOR:  No.  I mean under the (UNINTELLIGIBLE) doctrine, clearly the First Amendment doesn‘t allow a judge to tell the press what not to do.  But what I would hope would happen is like—just like last year in July of 2003 when the judge issued a decorum order and said please do not publish this victim‘s name and address, the press stood by that and said yes, you know under Colorado law we can publish that and under federal law, we can publish that, but we‘re out of common decency not going to do that. 

ABRAMS:  Right.

PINTO:  And it‘s Lucy that was arguing back then, too, (UNINTELLIGIBLE) I think that‘s inappropriate and I submit to you that in Colorado who wants to be a rape victim if you know...

ABRAMS:  Wait...

PINTO:  ... this kind of information is going to be posted all over...

ABRAMS:  But Ms. Dalglish, are you suggesting that you think that the press now should report it as a practical matter? 

DALGLISH:  Oh, no.  No, I‘m not saying that at all.  What I‘m saying is that there should not be a legal constraint against them...

ABRAMS:  Right.

DALGLISH:  ... and they should not be punished if they do, do it.  I‘m not aware of any of the media organizations that have plans to publish...

ABRAMS:  Right...

DALGLISH:  ... this information...

ABRAMS ... and I agree with you.  I think that‘s the right decision, Lisa, as a practical matter that the press has said on its own, look, we understand your concern, we understand this is a mistake.  What bothers me is the judge sort of threatening that there‘s going to be a contempt of court order out there if you violate it.  He simply doesn‘t have the power to do that and instead of sort of issuing these unconstitutional orders, the judge should just say look, we made a mistake.  We‘re asking you not to do this and I think that he wouldn‘t have had a problem and the press wouldn‘t have reported it. 

PINTO:  Well, he does (UNINTELLIGIBLE) taking this very seriously.  I mean this is very sensitive stuff and I think he needed to issue the words in the most chilling way possible because we don‘t want the “Globe” reporters, the tabloid reporters, they‘ve shown absolutely no restraint in the past about digging up each and every fact of this poor woman‘s life.  I mean the poor woman can‘t even hold a job in Florida because a “Globe” reporter...

ABRAMS:  He‘s not allowed to do it.  He‘s not allowed to do it. 

Period. 

PINTO:  Yes, but this is...

ABRAMS:  Period.

PINTO:  ... this is not aimed at the “New York Post”.  This is aimed...

ABRAMS:  It doesn‘t matter who it is named at.  I mean the bottom line is look everyone has reframed from doing it.  It only went out to eight media outlets.  But, you know I understand the concern on the part of the judge.  But I am concerned about the language he‘s using.  Let me switch gears, Lisa.  What is going on?  I mean mistake after mistake at this courthouse in this kind of trial, I mean that‘s inexcusable. 

PINTO:  I‘ll tell you what, if this happened in the Sex Crimes Unit in New York County or Queens, both counties which I worked in, heads would be rolling right now.  You do not mess around with victim‘s information.  This is very sensitive stuff.  And I do not—I am very suspicious of this court reporter‘s story that she accidentally transmitted such highly sensitive material and I really would like to get to the bottom of this.  I‘m not going to make any accusations, so I don‘t want to defame anybody‘s character, but let‘s make sure no money changed hands here. 

ABRAMS:  Oh come on.  All right...

(CROSSTALK)

ABRAMS:  ... that‘s a little silly.  We have no evidence of anything like that and you know, pretty soon you‘re going to have to call Lucy to represent you. 

UNIDENTIFIED FEMALE:  Yes.  Exactly. 

ABRAMS:  Yes.  All right.  Three mistakes from the Eagle County court so far.  The accused previous medical records inadvertently turned over to the defense.  That was the fault of the place where the medical records came from, but apparently, other people had had a chance to review those records, no one said, hey, don‘t turn this over to the defense.  Her name was accidentally posted on the court‘s Web site, then they pulled it off.  Now a court reporter accidentally e-mails sealed information.  Lucy, have you ever seen a case with this many potential issues like this? 

DALGLISH:  You know I think I have.  The more sensational the case, the more screw-ups you seem to get.  I mean going back to all of the high-profile trials we‘ve had in the last several years, we are seeing the advent of the celebrity trials, things are happening.  I really do feel kind of bad for the people in Colorado who are trying to keep...

ABRAMS:  Yes...

DALGLISH:  ... this particular case...

(CROSSTALK)

ABRAMS:  I got to wrap it up.  Lisa, you‘ll join us again later.  Lucy Dalglish, enjoy your vacation there.  Boy, it looks beautiful there.  Wow.  How about that? 

DALGLISH:  Oh, thank you. 

ABRAMS:  Yes.

DALGLISH:  It‘s lovely. 

ABRAMS:  And Lisa Pinto, we‘ll see you in a minute.  Coming up—Kobe Bryant not the only NBA player in trouble with the law.  A new book finds that 40 percent of NBA players have police records.  We‘ll talk with the author.

(COMMERCIAL BREAK)

ABRAMS:  NBA star Kobe Bryant, you know his case has been getting national headlines, trial expected to be later this summer, but he‘s not the first person in the NBA to face serious criminal charges.  In fact a new book claims some startling statistics, alleging that rape and violent behavior are all too common in the world of professional basketball.  The author examined the records of half of the players in the NBA and claims 40 percent of those he found have a police record involving a serious crime.  I spoke to Jeff Benedict, the author of the new book “Out of Bounds: Inside the NBA‘s Culture of Rape, Violence and Crime” yesterday about his research and how he can be sure the numbers aren‘t just high because the players are targets. 

(BEGIN VIDEOTAPE)

JEFF BENEDICT, AUTHOR, “OUT OF BOUNDS”:  What I did was did an analysis.  For example, there were 22 felony rape complaints that I found.  Of the 22, two of them were determined by the investigators to be false claims.  In other words, fabrications brought by women who were targeting the athletes.  The other 20 cases were ones that the law enforcement agents thought had merit. 

ABRAMS:  But how many of them ended up in convictions or pleas of guilty? 

BENEDICT:  Of all the cases in the book, roughly 50 percent of the cases that were brought to the police ended up in a conviction of some sort, meaning either a jury trial or a plea bargain agreement.  However, when you break them out by types of crimes, in rape cases, in particular, of the 22 felony rape complaints, only five resulted in a conviction. 

ABRAMS:  All right.  Let me read you a statement from the NBA.

Criminal conduct is always a matter of serious concern.  However, in this book the author has taken a few previously well-publicized incidents and used them as a springboard for fabricating a statistic that unjustly disparages all NBA players.  His so-called statistics on NBA players are false and intentionally inflammatory. 

BENEDICT:  Dan, I‘m a writer, and you got to pay close attention to words.  And when the NBA says, a few cases, well, to me a few means three or four.  I found 100 players in the NBA from the 2001 season, 100 players, who had criminal records.  The book details over two-dozen cases.  And these are not cases that people know a lot about.  I didn‘t spend much time talking about Allen Iverson and Kobe Bryant.  This book is filled with cases that you rarely—you don‘t know much about. 

ABRAMS:  But isn‘t it possible that you were able to get more information about players who had been charged—you say you went to district attorneys‘ offices.  You did your research.  Isn‘t it possible that the other half, the people who you weren‘t able to get information on, are people who actually had no criminal records at all? 

BENEDICT:  It‘s conceivable.  But Dan, I have to tell you that after doing the records check, we then did a computerized Lexus-Nexus search and found 30 more players whose names we didn‘t get records on, yet who had—were covered in published records like “The New York Times”, “USA Today”.  These are well known players who also had records, we just didn‘t get a court or police record on them so they were not included in the 40 percent.  I think it‘s safe to say if the NBA wants to open up the records of all 400 players in the league, I don‘t think that statistic is going to go down.  I think it‘s going to go up. 

ABRAMS:  Bottom line, what do you see as the biggest problem with the culture of the NBA? 

BENEDICT:  I think the biggest problem, Dan, if you look at the crimes, the biggest problem these players have is getting in trouble with women and the law.  And it‘s because they live a very—their lifestyle is very unique.  They spend a lot of time in strip clubs.  They do frequent with groupies.  None of that stuff is illegal.  But when you spend that much time with women in that environment you get a very warped skewed perception of women and proper conduct and you lose sight of where the law—where the boundaries are. 

ABRAMS:  Jeff Benedict, author of “Out of Bounds,” thanks very much for coming on the program.  Appreciate it. 

BENEDICT:  Thank you. 

(END VIDEOTAPE)

ABRAMS:  And we have just learned that in connection with the Kobe Bryant case, a trial date has been set for August the 27th.  You know what that means.  It means I‘ll be spending some of my summer in Colorado.  We will certainly be the program to watch for full coverage of the Kobe Bryant case, again, just being told this will begin on August the 27th

Coming up, some calling it a bombshell in the Scott Peterson case. 

One of the lead detectives admits on the stand he made some mistakes.

We‘re going to talk about whether the prosecution can ever come back from all the problems they‘ve had in the past week.

And a lot of e-mails on that former juror.  A lot of women coming to the defense of him for saying that pregnant women are crazy.  It‘s all coming up...

(COMMERCIAL BREAK)

ABRAMS:  Coming up, not a good week for the prosecution in the Scott Peterson case, from a dismissed juror to some bombshell testimony from one of the lead detectives.  Can the prosecution turn this case around?  First the headlines. 

(NEWS BREAK)

ABRAMS:  We are back.  If you‘re a prosecutor in the Scott Peterson case, I think you‘d be scrambling today to tough testimony and to dismiss jurors saying the prosecution‘s case has been confusing. 

(BEGIN VIDEO CLIP)

JUSTIN FALCONER, DISMISSED PETERSON JUROR:  I‘m surprised that—you know, at some of his own witnesses, are kind of almost—seem like they should have been called for the defense, you know.  Because they‘re making points for him, but they‘re sure making a lot of points—at least in my opinion—and I want to make that clear—in my opinion they‘re making a lot of points for the defense.  And you know, so you know, I kind of was—in my mind questioning what was going on. 

(END VIDEO CLIP)

ABRAMS:  (UNINTELLIGIBLE) every time I hear it I keep thinking what these prosecutors must be thinking.  They must be saying, ouch!  Since then, the defense team has been poking some major holes in the prosecution‘s case—since then.  The defense getting a Modesto detective, Al Brocchini, to admit that he intentionally left out an important piece of information in one report.  Defense attorney Mark Geragos trying to show the police ignored leads that may have pointed away from Scott Peterson. 

NBC‘s James Hattori has more. 

(BEGIN VIDEOTAPE)

JAMES HATTORI, NBC NEWS CORRESPONDENT (voice-over):  Under cross-examination by defense lawyer Mark Geragos, a police detective was forced to admit he deliberately failed to report a witness who contradicts the prosecution‘s case. 

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  That‘s about as much of a bombshell as you can get in a case like this.  Now he has admitted that he actually excised important sections from his police report. 

HATTORI:  The prosecution‘s case is based on the theory that Peterson hid a boat from his pregnant wife as part of a plan to kill her and dump her body in San Francisco Bay.  Police say one of Laci‘s hairs was found in the warehouse where the boat was kept. 

JOHNSON:  They say that‘s significant because the only way it could have gotten there is if Scott Peterson had taken Laci‘s dead body to the warehouse himself. 

HATTORI:  But on the stand, Detective Allen Brocchini admitted he excluded from his reports a woman who had recalled seeing Laci visit the warehouse where Scott kept the boat, which could help the defense show that Scott never hid the boat from Laci.  It could also explain why Laci‘s hair was found there. 

JANEY PETERSON, SCOTT PETERSON‘S SISTER-IN-LAW:  Those detectives are being cross-examined and it‘s being revealed that everything that came out of Scott‘s mouth the evening of the 24th was nothing but truth. 

HATTORI:  This blow to the prosecution comes in the same week an excused juror told reporters he thinks Scott Peterson is not guilty. 

FALCONER:  Yes, he lied about a couple of things that you know we saw in there, but I haven‘t seen anything that you know would make me believe that you know, he committed a crime. 

HATTORI:  Perhaps a sign of trouble for the prosecution, which is presenting its case, while the defense is making the headlines. 

James Hattori, NBC News, San Francisco. 

(END VIDEOTAPE)

ABRAMS:  Yes, perhaps.  Detective Brocchini also admitting this week he didn‘t follow-up with someone who says he may have seen Laci walking her dog in the park that Christmas Eve and never showing the man a picture of Laci and you know, again, the guy says he didn‘t see any face, so detectives say what‘s the point. 

All right, so a seemingly really bad week for the prosecution.  Let‘s bring in our legal team—former prosecutor, Lisa Pinto, criminal defense attorney John Burris and criminal defense attorney Jayne Weintraub.

All right, Lisa, I‘m going to call you to task on this.  I told you weeks ago—you made fun of me—talking about—I‘ve said how poorly I think the presentation has been going.  And I have said, before this week, that I thought the prosecution needed to rethink its case.  And you kept saying—Dan keeps saying that the prosecution‘s case isn‘t going well.  Will you now please tell America that Dan was right, that the prosecution‘s case is not going well? 

PINTO:  No, Dan, I will not say that.  First of all, cases—everyone has this fantasy idea of how a trial goes.  There are ups and downs for both sides, a few peaks and valleys.  Justin Falconer is not someone I would encourage anybody to take seriously.  There‘s a guy who‘s on disability and he looks...

ABRAMS:  He was on the jury.

PINTO:  He is hostile.  We‘ve learned that he‘s off the jury because he was so hostile to the prosecution...

ABRAMS:  That‘s not why he was off the jury. 

PINTO:  ... and he could not be a fair and impartial juror...

ABRAMS:  That‘s not why he‘s off the jury...

PINTO:  He was listening—his girlfriend was telling him what Nancy Grace had to say and he was far more interested in that, and he loved Mark Geragos and that is not—to me that is not a reasonable man sitting in the jury box.  This prosecution is doing a decent job.  If I were to cross-examine that Detective Brocchini I would say, was this report a summary of your findings or was it a comprehensive detail-by-detail report of what went on.  And the detective will say it‘s a summary, so there are other things missing.  It‘s not like they‘re hiding it from the defense...

(CROSSTALK)

PINTO:  Another witness is going to come in on Monday and testify about it...

(CROSSTALK)

ABRAMS:  Wait.  Wait.  Wait.  Let me just—before I go to Jayne, they did not hide it.  Other—it came out in other reports, other people referred to it.  That‘s how the defense knew about it.  Let me read exactly what Brocchini said. 

Mark Geragos:  Can you tell me how that particular piece of information got excised out of your police report?

Brocchini—can we put up—there we go—all right, there‘s Geragos and now Brocchini:  I excised it.

Geragos:  You did?

Brocchini:  I guess I did it.

Jayne Weintraub, go ahead of...

JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY:  I mean you know it‘s one thing if it was an intentional—it was unintentional, inadvertent omission and it wasn‘t a detailed comprehensive report, as Lisa said.  It‘s another thing if you intentionally edit and omit a detail, such as the woman‘s name, who was at the warehouse on Christmas—the day before Christmas Eve, such as evidence that we‘ve seen with the yoga instructor.  It‘s day after day, Dan.  It‘s one thing after another...

ABRAMS:  What does that tell...

(CROSSTALK)

WEINTRAUB:  You know being a lawyer...

ABRAMS:  I mean but what does that tell you?

WEINTRAUB:  It tells me, “A”, when the judge instructs the jury—as he will—about credibility—and ladies and gentlemen, this is one of the reasons and how you evaluate testimony in a case.  Does the witness testifying appear to have an interest in the outcome of the case?  That‘s a question that you should answer for yourselves.  Well, Dan, please, in evaluating whether or not this witness is a biased, interested witness...

ABRAMS:  So forget about this witness...

(CROSSTALK)

ABRAMS:  Put him aside then.  Forget about him.  Let‘s assume that the jurors forget about him altogether.  He‘s not essential to the prosecution‘s case.  He‘s essential to the defense‘s case, John Burris.

JOHN BURRIS, CRIMINAL DEFENSE ATTORNEY:  Well he‘s essential because what he did do was not put something in and the defense has always maintained that there was a rush to judgment and this is a further illustration of that by their key witness...

(CROSSTALK)

BURRIS:  ... rush to judgment...

ABRAMS:  They don‘t say anything, though...

(CROSSTALK)

ABRAMS:  ... about whether the guy actually did it.  All they do...

BURRIS:  Well, of course.  You‘re still trying—they‘re still trying to prove this case.  And one of the things he left out that he should have included, that would suggest that look, there is a possibility, a real alternative as to how this particular hair fiber could have gotten in that particular location. 

UNIDENTIFIED FEMALE:  Gentlemen...

BURRIS:  The prosecution also made an argument, at the opening statement that it couldn‘t have happened in any other kind of way, but consistent with the theory of the case. 

PINTO:  Gentlemen, we have a witness coming in on Monday, another police officer who interviewed Mrs. O‘Donnell (ph), who let her use the bathroom at the warehouse.  It‘s not like they‘re hiding anything.  This is not abnormal for a wife to go visit her husband at the workplace.  The warehouse was so crowded that she couldn‘t get in there to use the bathroom. She had to go elsewhere. 

Who knows if she saw the boat?  The prosecution is not dead in the water here.  This is a tiny glitch...

ABRAMS:  Yes...

PINTO:  ... in a long trial. 

ABRAMS:  ... Lisa, I‘ll tell you, I remember...

(CROSSTALK)

ABRAMS:  ... when I—hang on a second—when I saw the opening statement and this is—we can put up Brocchini‘s testimony because—this is number 10 here—it‘s just some of the mistakes that have been made, and you can go through them, as I‘m talking about this.  But this meringue issue, all right? 

The prosecution—and look, I‘m not going to make a claim that it‘s somehow an extremely major point in the case.  But it does—again if you want to find reasonable doubt here, you will, as a juror, say, wait a second.  This meringue business, the prosecutors say look, he claimed that he saw Laci Peterson when he left in the morning and of course, prosecutors believe she was already dead at that point.  He said that she was watching something on Martha Stewart about meringue.  Well (UNINTELLIGIBLE) there was nothing in that program about meringue—turns out that there was.  I mean that to me, Lisa, is an inexcusable mistake.

PINTO:  Dan...

(CROSSTALK)

PINTO:  ... to me it‘s a human mistake, police officers are human beings.  Al Brocchini is not a crook.  He‘s not a slob.  He‘s not a liar.

BURRIS:  He may be all of that...

PINTO:  His promotion didn‘t hinge on this.

(CROSSTALK)

PINTO:  He has 19 years of...

BURRIS:  That doesn‘t make him a truthful guy...

PINTO:  ... loyal service to the police department.  Of course it does...

BURRIS:  Hold on.  Hold on...

PINTO:  Every...

ABRAMS:  Hang on.  Let John Burris...

BURRIS:  You‘re a...

ABRAMS:  ... let John respond. 

(CROSSTALK)

ABRAMS:  John Burris.  John Burris, go ahead.

BURRIS:  Just because he‘s an experienced police officer doesn‘t mean he doesn‘t develop an interest in the case.  And it doesn‘t mean he didn‘t deliberately do it.  Police officers do that all the time.  That‘s ridiculous to suggest just because he‘s a police officer he wouldn‘t fabricate or be dishonest...

ABRAMS:  We are...

BURRIS:  ... about testimony. 

ABRAMS:  ... going to take a break.

BURRIS:  That‘s nonsense. 

ABRAMS:  Oh, John Burris, he‘s not usually...

BURRIS:  Well...

ABRAMS:  ... that emanated. 

(CROSSTALK)

ABRAMS:  Let‘s show John Burris again.  Let‘s just show John again. 

All right, there you go.  All right, he‘s not usually that emanated.

PINTO:  Why don‘t I swing by the beach...

ABRAMS:  All right.  Hang on...

(CROSSTALK)

ABRAMS:  All right.  Hang on.  Hang on.  I‘m going to take a quick

break here.  Coming back in a minute, we‘re going to play the—excuse me

·         let‘s take a break.  I got to cough...

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

J. PETERSON:  You can trash (UNINTELLIGIBLE) all you want, but the man has been handed an impossible case because Scott‘s innocent.  You cannot weave this together and convict Scott...

UNIDENTIFIED MALE:  This juror...

(CROSSTALK)

UNIDENTIFIED MALE:  This juror is saying the same things that we‘ve known all along.  That Scott is innocent, therefore there is no evidence.  Therefore there is no case.

(END VIDEO CLIP)

ABRAMS:  Yes, if you‘re the family of Scott Peterson, you have got to be encouraged by hearing that dismissed juror basically say that he couldn‘t convict Scott Peterson, even if the evidence from the opening statements turns out to be true.  All right, let me give you a sense of the themes the prosecution has covered so far. 

All right, 50 total witnesses -- 50.  I mean this is not like—yes the case just started, but there have been 50 witnesses. 

Five witnesses talking about Laci‘s clothing.  Why is that important?  Because prosecutors say that she was wearing the same clothing when she was found as the night before.  They say that helps prove that Scott Peterson killed her the night before and that she was not wearing the clothes Peterson claims she was wearing, that he says she was wearing in the morning. 

Inherited jewelry—this could provide a motive prosecutors say—I always thought that‘s sort of a weak argument that you know he found out how much jewelry she had and as a result that was the motive. 

The fishing versus golfing alibi—this a key one, that the bottom line is alibi seemed a little - quote - “fishy”.  He told some people he had gone golfing.  He told other people he‘d gone fishing.  He didn‘t seem to know what he went fishing for, et cetera. 

A lot of witnesses talking about his behavior.  That he was acting in a weird way.  He seemed too calm, et cetera. 

Three witnesses talking about Laci‘s health, again, this is a defensive argument, trying to say that she could not have been walking in the neighborhood, as some witnesses‘ claim, after Scott left the house. 

And two witnesses also to the age of the baby, which is significant because the defense says that could prove that Scott didn‘t do it if the baby was born full term.  When Laci went missing she was only seven and a half months pregnant. 

All right.  Here is my problem, Jayne, with the way that this case has been presented.  So much of this—I mean you got these five witnesses about Laci‘s health and the baby‘s age, all attacking possible defense arguments.  You got this business about the inherited jewelry, that‘s a maybe, could have, might have been a motive.  You know, it just seems to me that when you look at the totality of what the prosecution has presented so far it has not been an affirmative, positive...

(CROSSTALK)

ABRAMS:  ... aggressive case. 

WEINTRAUB:  Multiple motives are never good.  It‘s like throwing spaghetti on the wall, seeing what sticks.  I mean the bottom line is if they have a motive, assert the motive, prove the motive and move on.  Go forward with your best evidence first.  I was a former prosecutor.  You never start with flimsy evidence.  Not only do they start out stumbling, but what they‘ve got now is they‘ve got a yoga teacher who testified Laci was - could hardly even walk and in fact, she had previously testified that the only exercise Laci got was walking the dog. 

ABRAMS:  Yes, but, you know—but Lisa, my point is that I think in a way the prosecutor should have just dealt with all that stuff later, deal with the stuff about Laci‘s health and the baby‘s age and attacking—those are all...

(CROSSTALK)

ABRAMS:  ... attacking defense arguments that are still to come and I‘m not surprised the jurors are confused. 

PINTO:  Look, I think it‘s getting all the little stuff out of the way.  What‘s going to happen...

ABRAMS:  This is the way you would have done the case, Lisa?  This is the way...

(CROSSTALK)

PINTO:  I haven‘t interviewed all the witnesses, Dan.  I haven‘t seen all the physical evidence.  I don‘t have all the lab reports.  So like all of us, we can only sit here...

ABRAMS:  There are not that many lab reports.  There‘s a lot of eyewitness testimony...

PINTO:  But the issue here, if you have Amber Frey, the blockbuster, the motive—you simplify the motive in your little run-down.  It‘s not just about 100K of jewelry.  It‘s about a man that didn‘t want to be in a marriage, that wanted to be catting around, that wanted to keep a $20,000 golf membership.  He didn‘t want the encumbrance of a wife and a baby...

(CROSSTALK)

PINTO:  ... and they are getting to that.

(CROSSTALK)

PINTO:  Give them time.  Of course it is.  This is a man who was clearly a playboy.  He joked about wanting to be infertile...

(CROSSTALK)

ABRAMS:  Let me John Burris in.  Go ahead John.

BURRIS:  I don‘t think that the motive has been established in a definitive way, but I will say this as a former prosecutor myself, you don‘t put slouchy evidence on early.  You put strong, consistent evidence.  You put your theory of the case on.  You don‘t put the defense‘s theory on the case.  You put your case on because you need to be ahead early, often and consistently before the defense comes on.  When you do it this way, you‘ll never get ahead because you‘re always playing defense.  Prosecutors don‘t play defense.  They play offense.  They play defense later. 

PINTO:  We‘re all going by Justin Falconer‘s standard here...

BURRIS:  No, no, no...

PINTO:  I think all this evidence...

BURRIS:  ... this is good...

PINTO:  ... is about Scott‘s shady behavior...

BURRIS:  ... traditional solid prosecutor work. 

PINTO:  ... is very compelling...

ABRAMS:  All right.

PINTO:  He was lying.  He was dishonest.  He was cheating...

(CROSSTALK)

PINTO:  ... and the jurors got a good sense of who he is. 

ABRAMS:  Jayne Weintraub gets the final word.

WEINTRAUB:  He was having an affair.  Of course he wasn‘t being honest.  Of course his behavior was weird.  He didn‘t want anybody to know.  That doesn‘t make him a murderer...

ABRAMS:  Yes.

WEINTRAUB:  ... and physical evidence.  It would take one second to put it on.  Zero, no physical evidence, no manner of death...

ABRAMS:  All right...

WEINTRAUB:  ... no cause of death. 

ABRAMS:  All right, no, I‘ve got to wrap it up.  But I‘ve got to tell you...

(CROSSTALK)

ABRAMS:  ... these prosecutors, if they want to even have a shot here

·         you know, look, I‘m not going to suggest that Justin Falconer is somehow representative of these jurors.  But the bottom line is that you know, the people who were there every day and watching every day, even some of them are saying hey, now what was the point of that?  Why is the prosecutor—why are they doing this?  Why are they doing that?  You know, and I know a lot of the prosecutors say look, you hate the idea of people second-guessing you, but you know what? 

(CROSSTALK)

ABRAMS:  You second-guess and as it turns out in this case, at least with regard to one juror, a lot of the second-guessing was right.  Lisa, Jayne and John, thanks a lot.  Appreciate it. 

Coming up, your e-mails on the Scott Peterson case.  We asked some tough questions of the dismissed juror who said that pregnant women can be crazy.  Now some of our e-mail viewers are coming to his defense. 

And my “Closing Argument,” why it‘s refreshing to see justices of the U.S. Supreme Court looking beyond the marble halls to the impact of their decisions. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, my “Closing Argument” and a host of e-mails defending dismissed Peterson juror number five for his comment that pregnant women are crazy.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument” - it‘s refreshing to see justices of

the U.S. Supreme Court openly and honestly focusing on the real impact of

their opinions.  Yesterday an unusually balanced minority led by Justice

O‘Connor dissented from an important opinion in large part because - quote

·         “the practical consequences may be disastrous.”  They were the four in a 5-4 opinion where the court struck down Washington‘s state sentencing guidelines.  It‘s pretty clear that this opinion makes the federal sentencing scheme and that of many states unconstitutional null and void and that means most prosecutors in this country are having a lot of questions today about what to do now. 

The Supreme Court ruled that a judge should not have the authority to impose a sentence above the ordinary range for a crime.  In this case, a man pled guilty to kidnapping his estranged wife.  Generally, the maximum for kidnapping with a weapon was 53 months.  Judges were permitted to increase the penalty if there were - quote - “substantial and compelling reasons.” 

This judge here added 37 months to what he called deliberate cruelty by the defendant.  The majority of opinion of Justice Antonin Scalia joined by Clarence Thomas and three of the most liberal members of the court, ruled that only under the Sixth Amendment only juries, not judges, should be able to make that sort of finding.  But apart from the constitutional debate, it was nice to see the minority, O‘Connor, Breyer, Kennedy and Rehnquist talking about how this ruling - quote—“ignores the havoc it‘s about to wreak on trial courts across the country.”

Why?  Because—quote—“over 20 years of sentencing reform were all but lost and tens of thousands of criminal judgments are in jeopardy.”  They‘re right and the court had other opportunities to strike down the guidelines, but refused to do so.  That‘s part of the problem.  The Supreme Court has a tendency to focus as narrowly as possible on issues, so this was sort of a bombshell to prosecutors who now have no guidance about, for example, what a plea deal might really mean in terms of the sentence.  And so I applaud the four justices willing to debate the meaning of the Constitution while refusing to forget what it really means for everyone outside the marble halls. 

I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  More of your e-mails about the dismissed juror from the Scott Peterson case, Justin Falconer dismissed from the trial on Wednesday.  Most of you echoing the thoughts. 

G. Zuk from Woodland Hills, California, “After watching the clip of Justin Falconer, this juror had no business being on any jury.”

But last night, my panel and I were a little hard on Falconer over a statement he made about pregnant women. 

(BEGIN VIDEO CLIP)

FALCONER:  I know this to be true.  I‘ve got a kid myself.  Pregnant women are crazy.  And so you know, they—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 you know run a marathon. 

(END VIDEO CLIP)

ABRAMS:  Surprisingly, many of our women viewers coming to Falconer‘s defense.  From Chagrin Falls, Ohio Leah writes, “It might not have been politically correct for Justin to say pregnant women are crazy, but this was not said with any malice.  He was simply referring to the very real hormonal swings that affect women‘s moods and activity levels.  He was only offering a logical explanation for why Laci could be bedridden one day and walking the dog the very next day.”

Nancy Engel in Macon, Georgia, “The statement that pregnant women are crazy is his way of saying that pregnant women can be exhausted one day and energized the next.  This is true.  That she was tired the day before, that doesn‘t mean she didn‘t walk the dog.”

In case our legal panel didn‘t know, Elizabeth from Salem, Oregon explains the slang term for crazy.  “Being the same age as juror number five and growing up in the same general area, I have to tell you that my generation uses the word crazy as a slang, a sub for other words and not the Webster‘s definition of crazy.  Having two children myself and thinking back, I was crazy.  Obviously, this man has dealt with a pregnant woman.”

Jan in Tampa, Florida, “I‘m a woman and lady, but to tell the truth, we do get crazy when the hormones act up.”

Finally Pat Bell from Montgomery, Alabama, “I have had two children and all of my friends have done crazy things while pregnant.  We‘re up and down, good days and bad, mood swings and all.  What juror number five said was in no way offensive to me.”

Well I hate to tell you guys, the majority of our viewers were offended and were unwilling to try to figure out what he might have, could have meant by crazy. 

Your e-mails, abramsreport@msnbc.com.  Thanks for watching.  Great weekend, I hope.  “HARDBALL” up next. 

END   

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