updated 6/30/2004 12:03:43 PM ET 2004-06-30T16:03:43

Guests: Dean Johnson, Mercedes Colwin, Lisa Pinto, Justin Falconer, Jan Larue, Edward Lazarus, Anne Bremner, Stacey Honowitz

DAN ABRAMS, HOST:  Coming up, did Scott Peterson tell one of his friends how he would dump a dead body, and does it sound a lot like how Laci Peterson‘s body was found? 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  And the man formerly known as juror number five says he‘s now getting death threats.  Justin Falconer joins us live. 

Plus, the U.S. Supreme Court says no again to a law designed to protect children from online pornography saying it‘s unconstitutional. 

And a 23-year-old middle school teacher accused of having sex with her 14-year-old student numerous times, even once in a car while his teenage cousin was driving. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, did Scott Peterson create a recipe for murder that he later served when it came to killing his wife, Laci?  Detective Allen Brocchini has been on the stand for five days, it‘s felt like setback after setback for the prosecution.  That is, until today.  Finally prosecutors make some advances.  And it really only happened based on the type of questions defense attorney Mark Geragos was asking. 

Jennifer London is live at the courthouse with the details.  Hey Jennifer.

JENNIFER LONDON, MSNBC CORRESPONDENT:  Hi Dan.  Well, according to Brocchini, more than 10,000 tips came into the Modesto Police Department.  Many of these tips were what Brocchini described as coming from crackpots, people that were simply not credible.  But one tip was phoned in to the police department.  It was from someone who said they were a friend of Scott and Laci‘s from college—this friend telling Brocchini the following. 

Brocchini saying Peterson told him how he would get rid of a body if he killed someone.  Distaso saying what did he say that Scott Peterson told him. 

Brocchini—quote—“He said he would tie a big weight around the neck with duct tape, put weights on the hands, throw it in the sea and the fish activity would eventually—the body would float up.  The fish activity would eat away the neck and head and hands.  The body would float up, no fingers, no teeth.  So there could be no identification.”

Remember, the prosecution claims that Scott Peterson dumped the wife of his—dumped the body of his wife, Laci, in the San Francisco bay.  Now, under re-cross Brocchini conceded that he never really followed up with that tip and he never even met with his friend.  That tip came in the day after Peterson was arrested in April. 

Also, Brocchini talking about another tip, this one coming from girlfriend Amber Frey.  Among other things, Amber Frey told Brocchini that Scott lied to her about a number of things, including the fact that she was married—Dan.

ABRAMS:  MSNBC‘s Jennifer London.  Wow.  Remember that‘s exactly the way that Laci‘s body was found, they believe, just the torso.  They believe that the arms and legs had been weighted down.  Today the prosecutors are getting another chance to question Detective Brocchini.  The key to the prosecution‘s case today, the prosecutors actually trying to refute one of the defense keys, the police rushed to judgment by pointing out that police were even-handed in the leads they did not follow up on. 

Let‘s bring in our legal team—criminal defense attorney Mercedes Colwin, former New York prosecutor Lisa Pinto, and former San Mateo County prosecutor Dean Johnson who was in court today. 

All right, Dean, you have been saying day after day that the prosecution has been having bad days.  It sounds like a good day for them. 

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Right.  Well, this is the day that I‘ve kind of been waiting for.  I wanted to see this battle fought out on a level playing field, and finally Rick Distaso got some stiffness in his spine and really came back.  And I think the overall effect of his redirect of Detective Brocchini is that he has defused this idea of tunnel vision, that they were trying to frame Scott Peterson, and, of course, the point of that spectacular statement about a witness who came forward and said that Scott Peterson had said if he were going to kill somebody he would dump the body in the water.  The ultimate thrust of that is, hey, look, if we wanted to frame Scott Peterson, we could have done it with this witness.  But, like a lot of other witnesses that we dismissed, both for and against Scott Peterson, we found that this guy just wasn‘t credible.  And so we didn‘t have to follow up any more than we did, and that‘s why he‘s not the prosecution‘s star witness. 

ABRAMS:  And Mercedes Colwin, the only reason that this testimony came into evidence—again, this is what‘s typical hearsay evidence, meaning someone tells the police officer...

MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY:  Sure.

ABRAMS:  ... generally you can‘t admit that, except that in this case Mark Geragos kept asking him again and again, why didn‘t you follow up on this lead, and did you follow up on that lead...

(CROSSTALK)

ABRAMS:  ... and how about this lead?  And so he opens the door, and now Brocchini gets to talk about, well, you want to hear about leads, I‘ll tell you about one lead that I wasn‘t able to corroborate, and that‘s this one. 

COLWIN:  I mean, certainly—and you‘re right, Geragos opened the door on that one.  But we have to look at some of the other leads that they didn‘t follow up on.  There was a woman who claimed that—a peace officer who claimed that they had seen someone who looked just like Laci Peterson walking the dog at some later point in time.  Also, another witness that said he saw someone that looked like Laci Peterson by a van.  That lead was not followed up on either...

(CROSSTALK)

COLWIN:  ... so I think if you look at...

(CROSSTALK)

ABRAMS:  Lisa...

(CROSSTALK)

ABRAMS:  Hang on a second.  Lisa...

(CROSSTALK)

COLWIN:  ... if you look at some of the other leads, certainly much more compelling, and frankly, overall, Brocchini left exculpatory evidence out of his record.  They did nothing...

UNIDENTIFIED MALE:  OK...

LISA PINTO, FORMER PROSECUTOR:  Mercedes...

COLWIN:  ... to rehabilitate him today. 

PINTO:  ... we‘re past that.  My team scored some big points today. 

They very cleverly got in evidence that otherwise wouldn‘t have come in because your buddy, Mark Geragos, opened the door.  They had to show the detective—the reasonableness of the detective‘s investigation.  That‘s how they got around the hearsay issue.  And not only did they get that in, but we heard all about what Amber Frey is going to testify to.  We heard that Scott lied to her about being married...

(CROSSTALK)

PINTO:  ... that Scott had a relationship with her...

COLWIN:  Lisa, it doesn‘t...

PINTO:  ... that he slept with her...

COLWIN:  ... overshadow...

PINTO:  ... 10 days before Christmas.  All of that...

ABRAMS:  But see...

PINTO:  ... is coming in nicely. 

COLWIN:  It doesn‘t overshadow...

ABRAMS:  But hang on.  Lisa...

COLWIN:  ... and does not rehabilitate...

ABRAMS:  ... let me ask you a question.  It seems to me, let‘s even assume the prosecution did so well that the jurors ultimately believe the police investigation is a wash, meaning we‘re not going to believe anything that can‘t be corroborated that the police told us that they saw or found.  Let‘s even assume that that‘s the way that they view that.  Even that, to me, seems to be a victory for the prosecutors. 

PINTO:  Well I mean I think you don‘t even have to go there.  I think you -

·         the jury, once they‘ve heard this story now about how we‘d get rid of a dead body, namely, by doing exactly what happened to Laci Peterson, that‘s always going to be in their head and there‘s no way you can excise that from their memory, so you don‘t have to go...

COLWIN:  This is some random comment, Lisa.  This is a random comment...

PINTO:  Do you know...

COLWIN:  ... made nearly 10 years ago...

PINTO:  ... that jurors are not...

ABRAMS:  Hang on.  One at a time.  Go ahead Mercedes...

COLWIN:  How many times have you heard he‘s going to be sleeping with the fishes, and nothing ever comes of that threat? 

PINTO:  But it wasn‘t...

COLWIN:  It is a random discussion...

PINTO:  Mercedes, this wasn‘t a general comment...

COLWIN:  ... that happened 10 years...

(CROSSTALK)

COLWIN:  ... taken 10 years ago...

(CROSSTALK)

ABRAMS:  Hang on.  Hang on...

(CROSSTALK)

ABRAMS:  ... one at a time, one at a time...

JOHNSON:  Dan...

(CROSSTALK)

ABRAMS:  Let me let Dean—go ahead, Dean.  Go ahead.  Dean...

JOHNSON:  Dan, let‘s remember, that as of Thursday of last week, we had a lot of defense cheerleaders and pundits out here saying in public the trial is over, the prosecution has lost, the defense has won.  We don‘t even need to cover this anymore.  Now the prosecution is back to the point where it can credibly say, look, this was an honest investigation.  Yes, we‘re going to bring forward a lot more evidence discovered by Brocchini, the Modesto police and other agencies, and—but for what Distaso did today, none of that would be credible in the minds of the jury.  Now this case is very much a horserace again. 

ABRAMS:  Yes, I think that they still have some trouble with regard to the police investigation.  I think the best they can hope for is a wash when it comes to what the police did.  But we shall see. 

Mercedes, Lisa, Dean, stick around.  When we come back, defense attorney Mark Geragos calls into question already the credibility of Scott Peterson‘s girlfriend, Amber Frey, even before she takes the stand. 

And he was known as juror number five until last week when the judge kicked him off the Peterson case.  Justin Falconer told us he thought Peterson was not guilty based on what he had seen.  Now he‘s getting death threats.  He joins us live. 

Later, she‘s a 23-year-old teacher.  He was her 14-year-old student. 

Now she‘s under arrest for having sex with him multiple times. 

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Scott Peterson‘s girlfriend, Amber Frey, has not even taken the stand yet.  Defense attorney Mark Geragos is already attacking her credibility.  And the juror kicked off the case now says he‘s getting death threats.  He joins us live.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

AMBER FREY, SCOTT PETERSON‘S FORMER GIRLFRIEND:  Although I could have sold or—sold the photos of Scott and I to tabloids, I knew this was not the right thing to do. 

(END VIDEO CLIP)

ABRAMS:  Amber, Amber, Amber.  Scott Peterson‘s girlfriend yet to take the stand as a witness in this case.  But yesterday defense attorney, Mark Geragos, began attacking her credibility, questioning Detective Brocchini about the tips he received during his investigation, that Amber first phoned police on December 30 to admit her affair with Scott, to talk about it with them.  She said she just found out that Laci was missing, and Laci was related to Scott.  Geragos says that was just one day after a $500,000 reward was posted in the case. 

So, Dean, how much of an attack?  You were inside the courtroom, did we see already on Amber Frey? 

JOHNSON:  Well, this is really kind of a sideshow at this point.  Everybody is pretty much assuming that Amber Frey is going to come in and testify, yes, he had an affair, and then we‘re going to hear a bunch of wiretaps.  For some reason, and just call this instinct, I think Amber Frey as a witness is going to blow up in somebody‘s face, possibly the prosecution.  We don‘t know what she will say.  There is an indication that she was, in effect, now acting as a double agent, that she was wiretapping Scott for the police and feeding information to Scott at the same time.  ABRAMS:  Well, let me read—this is something that we had obtained weeks ago.  And this is from a warrant from Steven Jacobson, criminal investigator.

“We believe these telephone conversations, if intercepted, will show Scott Peterson‘s further involvement and possibly the involvement of Amber Frey in Laci‘s disappearance.”

That came from June—sorry—from January, before Amber Frey went public, but after she had gone to the police.  And she also—let‘s continue.

“She informed us early on that she wanted to cooperate in this investigation, even stating she was tape recording her conversations with Peterson, yet the evidence based on the intercepts has us believe that Amber Frey still has a desire to have Scott Peterson in her life and that she may even lie or conspire with him to withhold evidence.”

All right, so Lisa Pinto, you know they weren‘t sure about Amber Frey.  They weren‘t sure they could sort of go to the bank on her, and they investigated some more and then decided they could.

PINTO:  Yes, but there‘s a lot of what she‘s going to stay on the stand that‘s very valuable to the prosecution.  She‘s going to give us the motive that he was having an affair with her.  He was sleeping with her 10 days before Laci disappeared, that he lied to her and that he in fact lied to the cops.  When they asked him to come clean on December 30, he didn‘t even admit to the extent that he had been having this affair and cheating, so I think she‘s very valuable.  We know she‘s got issues.  We know she goes after married men.  We know she‘s not entirely credible.  We know she called suspiciously after a reward was posted, but I still think Amber is a powerful weapon for the prosecution and you can‘t—you know, no witness comes to a prosecutor perfect.

ABRAMS:  Mercedes...

PINTO:  They come as they are. 

COLWIN:  I think she‘s going to be extremely problematic.  And also, I don‘t know if you know this, Dan.  She had spent 58 hours with some of Laci‘s friends and that‘s going to taint her testimony as well.  This is sometime a couple...

ABRAMS:  Wait, this is after she went public...

COLWIN:  After she went public...

ABRAMS:  Right.

COLWIN:  ... she spent 58 hours...

ABRAMS:  So...

COLWIN:  ... with Laci‘s friends, stayed overnight and what the prosecutor is going to have to deal with is the fact that she—why is she spending, first of all...

ABRAMS:  I‘ll tell you why...

(CROSSTALK)

ABRAMS:  Because they want to know—because her friends wanted to know all about the relationship that they didn‘t know about...

COLWIN:  Dan...

ABRAMS:  ... so she sat there and told them all about it.  COLWIN:  ... it will taint her testimony ultimately.  You have to—if you‘re going to be a very effective prosecutor‘s witness, distance yourself from the parties involved and go forward with your story...

ABRAMS:  Wait a sec...

(CROSSTALK)

ABRAMS:  ... her body hadn‘t even been found.  We‘re talking about in January.  Laci‘s body...

(CROSSTALK)

ABRAMS:  ... hasn‘t even been found and she‘s tainting her testimony

by agreeing to talk to some of Laci‘s friends...

COLWIN:  But this is...

ABRAMS:  ... about what she knew? 

COLWIN:  Dan, it‘s not even just talking with them.  It‘s staying overnight with them.  It‘s socializing with them.  This isn‘t just a few—a couple of phone calls.  No, these are hours and hours and hours together.  Certainly the defense, if I were Geragos, I would certainly bring that up...

ABRAMS:  I‘m sure they will, but I just think...

COLWIN:  ... on cross-examination, and it could be great fodder to say listen, there‘s a bias here...

PINTO:  Oh Mercedes...

(CROSSTALK)

COLWIN:  ... and we can establish that bias...

(CROSSTALK)

COLWIN:  ... and discredit it.  But frankly...

ABRAMS:  All right...

PINTO:  This woman‘s not a police investigator.  This woman is the girlfriend with dubious judgment in men who has obviously gotten a makeover and loves being in the spotlight. We‘ve all realized that, but doesn‘t make her...

COLWIN:  But you know what?  In the final analysis...

(CROSSTALK)

COLWIN:  ... Lisa, I think...

ABRAMS:  I‘ve got to wrap it up.

COLWIN:  ... juror number five said the same thing...

ABRAMS:  We‘ll talk to juror number five...

(CROSSTALK)

ABRAMS:  Hang on...

(CROSSTALK)

ABRAMS:  Hang on...

(CROSSTALK)

ABRAMS:  Hang on. 

(CROSSTALK)

ABRAMS:  You know why?  Because coming up, I‘ve got juror number five. 

Lisa, Mercedes, Dean, thanks a lot. 

He was part of the jury in the Peterson case until last week.  Now he says he‘s getting death threats because he said the prosecution has not proved Scott Peterson is guilty. 

And the Supreme Court weighs in on efforts to block Internet porn, ruling a law designed to protect children may not be constitutional. 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

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

(END VIDEO CLIP)

ABRAMS:  Remember that guy?  The man known as juror number five in the Scott Peterson case, Justin Falconer.  He‘s gotten a lot of heat for saying, as you just heard, that he wouldn‘t convict Scott Peterson based on what he heard, not to mention his comment that pregnant women are crazy.  He came on the show last week and defended himself.  I gave him some grief for a lot of his answers, but now he‘s saying he‘s getting death threats. 

Justin Falconer joins us now.  Thanks a lot for coming back on the program.  Appreciate it.

FALCONER:  No problem.  Thank you for having me. 

ABRAMS:  All right, before I ask you about today‘s testimony and whether any of that would have changed anything for you, this is outrageous.  People are threatening your life? 

FALCONER:  Yes, yes, apparently some people think I need to die—quote—“like Laci and Conner.”  So—and then not to mention, you know, none of the letters that I got were very friendly, and I can‘t repeat them on air, but you know it‘s interesting because they‘re coming to my house.  I knew about the online stuff.  I knew that you know there was a lot of talk online about you know finding me and killing me and stuff like that.  My friends were telling me about it and were trying to talk me into leaving town.  But you know I didn‘t think anything of it really.  And now that it‘s coming to my house, though, it‘s kinds of like, oh, well, maybe I need to start thinking about this. 

ABRAMS:  Have you gone to the police? 

FALCONER:  I will later.  I wanted to get the mail today, too, to see if I got more, but today I‘m going to. 

ABRAMS:  Wow.  I mean look, people, come on.  You know, I don‘t know if any of the people who are sending you this stuff are watching this program.  But look, I gave Justin a hard time when he came on this program.  Leave the guy alone.  All right, you know this death threat you‘re going to get in trouble, you‘re going to get arrested, as you should, if you‘re sending this guy this kind of mail. 

All right.  Let me talk to you about some of what we heard today.  All right, so we hear that this detective comes on the stands and says, look, you know—and you were very critical of this detective based on the little you had heard of him, and you were saying there were a lot of problems with his testimony and now it seems at the very least that he didn‘t follow up on some leads that would have hurt Scott Peterson, in addition to the ones that might have helped Scott Peterson.  So does this make you think that you know maybe this wasn‘t this sort of insidious conspiracy to go after Scott Peterson? 

FALCONER:  Well, I mean it depends on the tips, too.  Because, I mean, there was a couple of tips that I really was wondering about, and one of them namely being when they took the floor (ph) over Tracy and noticed that there was heat resonating from these buildings, but didn‘t investigate it because it was too hot an area.  This was where all the drug dealers and all the meth labs were, and if you‘re going to go in there, you‘re going to need a whole team, so we just didn‘t look at that.  It‘s tips like that they didn‘t investigate that I was, you know, that concerned me the most.  A tip about a conversation that you had seven years ago with your college buddy, you know that—even though it obviously had a lot to do with the case...

ABRAMS:  Come on.  I mean Justin, come on.  It has a lot...

FALCONER:  That—I‘m not defending that...

ABRAMS:  Yes, I mean if someone...

FALCONER:  ... I‘m not defending that, but at the same time...

ABRAMS:  ... yes, I mean if this really happened, right, if Scott Peterson really has a conversation with someone nine years ago where he says if I were going to kill someone I‘d wrap the head in plastic and weigh down the arms and the legs essentially so they couldn‘t identify the person, it appears that may have been exactly how Laci‘s body was found.  I mean you can‘t just dismiss that as nothing. 

FALCONER:  I‘m not dismissing it as nothing.  But what I am noticing, though, is that it‘s not—it wasn‘t entered as testimony.  And what it was, was a pretty good jab by Distaso to say you know look, if you‘re going to play this game, so am I.  And you know it—as much as, you know, it is damning, if he did say that, you know, the guy that did come forward with this came after Scott was already arrested, and you know after you know some of the facts were already out.  So it‘s possible that he just wanted his name in the papers and you know wanted to be a part of this case.  But if this was actual testimony...

ABRAMS:  Yes.

FALCONER:  ... where this guy actually came in...

ABRAMS:  He‘s not going to...

FALCONER:  ... and sat down and said you know...

ABRAMS:  He‘s not going to. 

FALCONER:  ... this is—well then that would be totally different. 

That‘s when you‘re sitting in your head going come on, man...

ABRAMS:  You know...

FALCONER:  ... now you‘re starting to really change the way you‘re feeling towards Scott because that‘s...

ABRAMS:  Justin...

FALCONER:  ... a little bit too close to home. 

ABRAMS:  ... correct me if I‘m wrong, and I think you are going to correct me because you‘re going to say I‘m wrong, but I don‘t think I am.  And that is I don‘t think that anything that the prosecutors laid out in the opening statement or that we‘re going to hear as evidence in this case by the prosecution could have, would have changed your mind.  I mean I don‘t see anything—I know what their case is.  You pretty much know what their case is.  I don‘t think there‘s any piece of evidence that the prosecutors could present that would change your mind about Scott Peterson‘s guilt. 

FALCONER:  No, that‘s not true.  There was a lot of questions that I had that really I wanted answered.  And, you know there was—like, for instance, you know, the anchor thing.  They were showing pictures of where he supposedly had made the anchors.  I‘m sorry, but if you had proven to me that there were five more anchors, that‘s—I‘m not out here saying he‘s innocent...

ABRAMS:  But what if they were to show...

FALCONER:  ... but...

ABRAMS:  ... that there is evidence to suggest that there were five anchors and you throw that in conjunction with you know where the bodies were found, how he was acting after the fact, the affair with Amber, what he was saying.  I mean, how about piecing it all together?  No, still unconvincing to you? 

FALCONER:  Well, it‘s really young in the case and I haven‘t seen all the evidence...

ABRAMS:  Yes...

FALCONER:  ... I haven‘t seen everything...

ABRAMS:  But you heard about it.  Come on, you heard about it in opening statements...

FALCONER:  I‘ve heard so far...

ABRAMS:  ... yes...

FALCONER:  ... well I‘ve heard the stuff so far, you know and that‘s all fine.  But there‘s still so much out there that you know he needs to rail it in.  He needs to bring it all in and say...

ABRAMS:  I know...

FALCONER:  ... look, this is how it was done, this is the way we want you to believe he did it...

(CROSSTALK)

FALCONER:  ... and this is how come—and all this information, if he‘s going to bring it in like that and rail it all in and then the defense is going to get a chance to you know do their thing, it‘s possible at the end of all that that I would have been very much you know going...

ABRAMS:  Yes...

FALCONER:  ... hey, wait a minute...

ABRAMS:  I don‘t know...

FALCONER:  ... that‘s not right...

ABRAMS:  I don‘t know.  I don‘t think you ever could have been persuaded based on what I‘ve heard you say...

FALCONER:  I could have been persuaded...

ABRAMS:  All right...

FALCONER:  I very, very, very much could have been persuaded.

ABRAMS:  Justin Falconer, hey people, leave this guy alone, all right.  He was a juror in the case.  He‘s entitled to his opinion, whether you agree with it or not.  And Justin, go to the police on this, all right?  Thanks a lot...

(CROSSTALK)

ABRAMS:  ... for joining us.  We appreciate it. 

Coming up, another major ruling from the U.S. Supreme Court, this time about blocking porn on the Internet, a high court rules again that a law designed to keep it away from kids may not be constitutional. 

Later, a middle school teacher charged with having sex with her 14-year-old student.  It‘s not the first case of its kind, but we‘re going to ask the question no one seems to want to ask.  Would it be tougher for her if it was a man accused of having sex with an under aged girl?  And then the she would be called a he.

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, the U.S. Supreme Court says a law designed to shield children from Internet porn cannot be enforced.  The details coming up, but first, the headlines. 

(NEWS BREAK)

ABRAMS:  We‘re back.  Another big ruling from the U.S. Supreme Court today.  This time on the issue of protecting children from Internet pornography.  The question—can Congress tell Internet service providers that they must verify a user‘s age before letting them, in essence, get on to the site that has pornography?  Today the Court said no.  There were less restrictive means that could achieve the same goal, like, for example, forcing the users to get filters. 

NBC‘s Tracie Potts has the story. 

(BEGIN VIDEOTAPE)

TRACIE POTTS, NBC NEWS CORRESPONDENT (voice-over):  The Child Online Protection Act was designed to keep those under 17 from accessing sexually explicit material online.  But the Supreme Court says you can‘t do so by ignoring the First Amendment.  The court ruled today that requiring users to provide a credit card number or other I.D. to prove their age is unconstitutional. 

TOM GOLDSTEIN, SUPREME COURT EXPERT:  The Americans believe in protecting children from pornography.  The justices are simply going to hold Congress to a very high standard. 

POTTS:  Today‘s 5-4 decision is the third time the court has ruled on this issue and the second time they‘ve considered this specific law.  In short, the court said adult Web sites are protected free speech and this law is too restrictive.  The court believes online filters for children may not only be less restrictive, but more effective.  Family groups disagree. 

PATRICK TRUEMAN, FAMILY RESEARCH COUNCIL:  Because of the Supreme Court, now every hard-core pornography site in the world is open to our children.  No restrictions.

POTTS:  The law imposed a $50,000 fine and six-month prison sentence to those who couldn‘t prove they tried to keep minors off the Web site.  The ACLU was concerned that making it a crime to post adult Web sites would lead to self-censorship. 

ARTHUR SPITZER, ACLU:  Medical information, psychological information, wouldn‘t be available on the Web because people would be afraid to put it there, less John Ashcroft come after them and prosecute them. 

POTTS:  The issue now goes back to a lower court, where the government gets another chance to prove its case. 

Tracie Potts, NBC News, Washington. 

(END VIDEOTAPE)

ABRAMS:  Saw the ACLU there, they have refused our request to come on the program.  This law has never been enforced.  It was passed by Congress in 1998, signed into law by President Clinton and tied up in the courts ever since.  And given that, it doesn‘t touch porn site providers outside the U.S.  It doesn‘t touch noncommercial porn sites or e-mail.  What‘s wrong with the court saying go back, rewrite it, and why not force people to get filters who don‘t want the porn? 

Let‘s ask our guest, attorney Eddie Lazarus, a former federal prosecutor, also a clerk for Supreme Court Justice Harry Blackmun and Jan Larue, the chief counsel and legal studies director for Concerned Women for America. 

All right, Ms. Larue, let me start with you.  What is wrong—the court is not specifically saying it‘s unconstitutional, it will never happen.  They‘re just saying look, we want to make sure that it‘s not less restrictive to have people put these filters on in their homes.  And as I pointed out, this law wouldn‘t affect porn coming from Europe and other places anyway. 

JAN LARUE, CONCERNED WOMEN FOR AMERICA:  Well, that‘s not true, Dan.  There‘s no exemption in the law for foreign Web sites, and if you violate the U.S. law within the reach of a U.S. federal court, you‘re subject to prosecution.  However, why should parents bear the burden here when you‘ve got $2.5 billion pie being divided up by commercial pornographers at the expense of children? 

You know software filtering has been faulted by the ACLU and the majority of this court in the past, when it‘s imposed on libraries and now it‘s suddenly very effective.  The law requires that to be upheld by the First Amendment it be least restrictive, but as effective.  And filtering isn‘t as effective as Justice Breyer points out in his dissenting opinion.  It requires parents to utilize it.  You can‘t force them to do that.  They have to be able to afford it.  Sometimes it under blocks...

(CROSSTALK)

LARUE:  ... sometimes it over blocks.  And children have access to the Internet on computers...

ABRAMS:  But that‘s an issue for the trial...

LARUE:  ... that don‘t have filtering. 

ABRAMS:  But all the court is saying is that‘s an issue for the trial. 

That they have not demonstrated at this point...

LARUE:  Sure, they have. 

ABRAMS:  ... that it‘s the least restrictive.  No...

LARUE:  Sure they have.

ABRAMS:  ... that‘s what the court is ruling. 

LARUE:  Congress was very aware of Internet filtering when they chose age verification for these commercial pornographers.  When you go on these adult Web sites, if you want to become a member you have to pony up a credit card or a check and get a password...

ABRAMS:  But that...

LARUE:  ... and all we‘re saying is do the same thing for these free teaser images...

(CROSSTALK)

LARUE:  ... that kids have access to. 

ABRAMS:  Again, Eddie, I‘m not saying that I necessarily think that there‘s something wrong with the law.  I‘m saying that I agree with the court that there should at least be a trial to assess and go through the evidence to assess is this a least restrictive means.  Meaning, which one would be more effective, which one would be better, and the court is saying go back, deal with that, address it. 

EDWARD LAZARUS, FORMER FEDERAL PROSECUTOR:  Well that‘s exactly right, Dan.  It‘s a very, very narrow ruling and everybody has to understand that.  All that the court said here today was, look, the government didn‘t put up its evidence.  It carries the burden of proof to show that this is the least restrictive means.  On the face of what they‘ve done, it‘s not the least restrictive means, and the punishment here, actual criminalization of speech protected by the First Amendment is very severe.  If you want to do that, you‘ve got to show your cards and now there will be a trial where they can do that. 

LARUE:  Dan, let‘s make something...

(CROSSTALK)

LARUE:  ... real clear here. 

ABRAMS:  Let me just follow up with you one second Eddie.  Do you agree with Jan that this would apply to European Web sites?  My understanding from the court‘s ruling was that one of the problems with this law is it only applies to U.S. Web sites. 

LAZARUS:  Yes, that‘s what the court‘s majority ruling says quite explicitly.  But there‘s another problem, which is it also doesn‘t apply to things like e-mail.  This does cover the worldwide Web, but something that‘s sent directly across through e-mail would not be covered, whereas the filtering technology would get to things like that. 

ABRAMS:  Go ahead Jan.  Sorry...

LARUE:  Well Dan, what the court failed to recognize here, what Justice Breyer points out, is that COPA is a reaction to the court‘s ruling in the CDA case faulting the application, the e-mail and chat rooms and so forth.  So it only applies to commercial pornographers, and there is no exemption in the law for foreign Web sites whatsoever.  You know, if this were applying to Internet sites selling cigarettes and alcohol, age verification would be a must, and nobody would even challenge it.  There is no First Amendment right to display material defined as harmful to minors to minor children. 

ABRAMS:  Wait...

LARUE:  The court decided that in 1968...

ABRAMS:  Hang on.  Wait.  Eddie, isn‘t there a First Amendment—I mean isn‘t that exactly wrong in the law? 

LARUE:  No, it‘s not wrong...

LAZARUS:  Well...

ABRAMS:  Hang on, hang on.  There‘s a First Amendment right—I mean even when it comes to obscene material, someone who wants to get—an adult who wants to get obscene material has the right to get it, whether we like it or not, right Eddie? 

LARUE:  Not right.

LAZARUS:  Well, the government didn‘t even contest this point.  The government agreed that this statute regulates material that is First Amendment protected for adults.  It‘s not First Amendment protected necessarily for children, but the question is...

LARUE:  Right.

LAZARUS:  ... how can the government go about separating out the kids from the adults? 

ABRAMS:  Right.

LAZARUS:  Can it criminalize this and make the pornographers put up a defense or not? 

ABRAMS:  Ten seconds, Jan.

LARUE:  Dan, there are affirmative defenses here.  Use a credit card and build access codes, personal identification number, digital certificate verifying age...

ABRAMS:  Yes...

LARUE:  ... and you don‘t get prosecuted. 

(CROSSTALK)

LARUE:  That‘s reasonable...

ABRAMS:  I...

LARUE:  ... and it complies with the First Amendment. 

ABRAMS:  I‘d say the court got this right, but that doesn‘t mean it‘s the end of the issue and that‘s the key here.  Eddie Lazarus, Jan Larue, thanks very much...

LARUE:  Thank you. 

ABRAMS:  Appreciate it.

LAZARUS:  Thank you.

ABRAMS:  Coming up, in Florida a teacher is charged for having sex numerous times with a 14-year-old student, once even in the back of her SUV while his cousin was driving.  The question—are things going to be easier for her because she‘s a woman and he was a boy?

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  In Florida a middle school teacher has been charged for having sex numerous times with her 14-year-old student.  The police say the encounters occurred in a classroom, at her apartment and once in her SUV while the boy‘s 15-year-old cousin was driving.  Twenty-three-year-old teacher, Debra Beasley Lafave was back in court yesterday facing charges. 

NBC‘s Don Teague has details. 

(BEGIN VIDEOTAPE)

DON TEAGUE, NBC NEWS CORRESPONDENT (voice-over):  Tampa middle school teacher Debra Lafave surrendered to investigators Monday.  The 23-year-old faces three new charges for allegedly having sex with a 14-year-old student on a road trip to Ocala, Florida. 

CHRIS HAWORTH, DETECTIVE:  Basically she came up here, met the one juvenile who‘s from Tampa while he was visiting his cousin, they drove around and she engaged in lewd and lascivious acts with him. 

TEAGUE:  The latest charges accuse Lafave of having sex with the boy twice in her SUV while his 15-year-old cousin drove the two around Ocala.  In a detailed police report, the cousin told investigators that prior to the incident the alleged victim had talked about the hot teacher who liked him.  Later, telling his cousin he would prove to him that she liked him. 

UNIDENTIFIED MALE:  Debra Lafave stand up. 

TEAGUE:  Lafave who is married and still a newlywed was first arrested and charged last week in Tampa, accused of having two sexual encounters with the same boy, first in her home, later in her school classroom.  After turning herself in on the new charges Monday, she was released on a $25,000 bond.  Her attorney made only a brief statement. 

JOHN FITZGIBBONS, DEFENSE ATTORNEY:  There is a presumption of innocence in this country and when anyone is charged with a crime, and I hope that everyone gives that consideration to Debbie as this case moves forward. 

TEAGUE:  If convicted, Lafave could get 15 years in prison on each of the five charges against her. 

Don Teague, NBC News, Atlanta. 

(END VIDEOTAPE)

ABRAMS:  It‘s just the latest in a string of high-profile male student-female teacher cases.  Remember Washington teacher Mary Kay Letourneau convicted for having a relationship with a 13-year-old, initially only sentenced to six months.  Not long after her release, she was caught having sex with the same student again, sent back to prison for seven and a half years.  She had two children with him.  Beth Friedman, a Florida teacher accused of a sexual relationship with a student, convicted of contributing to the delinquency of a minor.  She avoided jail all together and only got a year probation. 

So, are the investigators going to be softer or did prosecutors or the judges, when the adult is female and the child is male and, you know, would it be different if the roles were reversed?  Joining me now, Broward County prosecutor Stacey Honowitz, who prosecuted Beth Friedman, and defense attorney Anne Bremner who represented the city of Seattle when Mary Kay Letourneau‘s teenage lover and his mother sued the city for damages.

All right, Anne, bottom line do you think that these women are getting treated with kid gloves and should they? 

ANNE BREMNER, DEFENSE ATTORNEY:  Well, I‘ll take that in two parts, Dan.  You covered that case, the Mary Kay Letourneau case that I had.  Remember, Mary got seven years in prison...

ABRAMS:  No, only...

BREMNER:  ... when she violated...

ABRAMS:  Wait, wait, only because...

BREMNER:  That‘s right.

ABRAMS:  ... she initially got six months, and she only got the seven and a half years because she went back and did it again.  In fact, let me read you a comparison here, same county, two cases, almost identical.  Mary Kay Letourneau, age 35, student‘s age 13, pled guilty to charges of second-degree child rape...

BREMNER:  Right.

ABRAMS:  ... initially sentenced to six months, prosecuted in the same county as Mark Blilie, age 42... 

BREMNER:  Exactly. 

ABRAMS:  ... student age 15, convicted of third degree rape and child molestation, sentenced to four years, same county as Mary Kay Letourneau. 

BREMNER:  Well, there‘s a huge difference.  The law is the same for men and women, but men and women are different in terms of sentences.  Mary came in for a treatment option because she had a mental illness that she claimed...

ABRAMS:  All right, but forget about Mary Kay.  I‘m talking about generally.  Do you think it‘s fair that—we always talk about the mental illness of the women.  That‘s the thing.  In these cases we always say oh, the adult teacher had all these problems and we talk about the male teachers, we just say they were perverts. 

BREMNER:  Yes or pedophiles or whatever else.  But think about this. 

Mary Kay Letourneau was the first case like this.  She was a true anomaly. 

It was a case that shocked the world...

ABRAMS:  Yes.

BREMNER:  ... and hit all the tabloids, because it‘s so rare.  And so then you need to look at the difference between men and women, and statistics, women are not predators, they are not pedophiles.  They are treatable, and pedophiles are not treatable, reportedly.  And finally, statistical evidence shows that young male victims are not as affected as the young women or young girls.

ABRAMS:  Right.

BREMNER:  So you have to look at all these things...

ABRAMS:  All right.

BREMNER:  ... law should be the same, but the sentences could be markedly different. 

ABRAMS:  Stacey, it sounds like what Anne is saying is that you know, yes, the law can be the same, but the bottom line is when it comes to the discretion, it‘s OK...

UNIDENTIFIED FEMALE:  Exactly.

ABRAMS:  ... to treat women a little less harshly. 

STACEY HONOWITZ, BROWARD COUNTY FL PROSECUTOR:  Well I don‘t think it‘s OK.  And I think basically what you‘re looking at in these cases, it‘s not what the prosecutors or the judge is thinking.  I think what you have in these cases are jurors.  You‘re going to have a difficult time finding jurors that will convict women.  It‘s unfortunate, the law is the same for both, but women and men are treated differently when it comes to sex...

ABRAMS:  But should they be?  I mean Anne...

HONOWITZ:  No, absolutely not. 

ABRAMS:  ... makes the point that there is not a nationwide problem with adult female predators.  Meaning, it doesn‘t mean it doesn‘t happen.  But there‘s no question that if you want to talk about sending a message to the community, it is those men that need to be—have that message sent louder and clearer than the need to send it to women. 

HONOWITZ:  I don‘t believe that at all.  And there are so many female predators that for some reason don‘t get caught.  The law needs to be the same for both.  And I think that‘s what you need to look for.  I don‘t think there should be a difference.  There are women—this woman, this teacher, the teacher that I prosecuted are predators.  That‘s what you are.  If you prey on a 14-year-old boy, you are a sexual predator.  It‘s not because you have a mental problem or a mental disease. 

BREMNER:  Wait a minute.  Predator by definition means that you have more than one victim and there—when we have commitment hearings in this state and other states that commit sex offenders indefinitely based on being predatory...

HONOWITZ:  Right.

BREMNER:  ... there is zero statistical evidence that women can be

predators, therefore, women don‘t get committed.  So I think that, you know

·         just as a general proposition, should women and men be treated differently?  No.  But men are different than women in this area, in these types of crimes, and you have to look, like Dan says, at discretion in sentencing. 

ABRAMS:  What about the fact that, Stacey, that this, you know, this boy was doing what many people would expect a boy to do and going around and bragging about the fact...

HONOWITZ:  That‘s right.

ABRAMS:  ... that he was having sex with a hot teacher. 

HONOWITZ:  That‘s right.  And that‘s exactly—you know, I think for most men and for most men that hear things like this, they think it‘s a rite of passage.  When you talk about an older woman having sex with a younger boy you know it‘s almost glamorous.  You hear about it in the movies, you see it on TV, Mrs. Robinson, “The Graduate”.  It was interesting.  It‘s the cool, fun thing to do.  And that‘s why in picking juries in these cases, you do have such a difficult time because if you speak to most people, most men—I hate to say this—but they will say I wish that was me.  Why didn‘t a hot teacher prey on me when I was in high school? 

BREMNER:  Well and that was our line in the Mary Kay Letourneau case.  I was defending the police when there was an allegation we didn‘t intervene.  She was every schoolboy‘s dream, and there was that song “Hot for Teachers”.  So those are very valid points. 

ABRAMS:  There was that song. 

BREMNER:  Yes.

HONOWITZ:  There was that...

ABRAMS:  “Hot for Teachers”.

UNIDENTIFIED FEMALE:  Right. 

ABRAMS:  All right, Stacey Honowitz and Anne Bremner, thanks a lot. 

BREMNER:  Thanks.

ABRAMS:  Appreciate it. 

HONOWITZ:  Thanks, Dan. 

ABRAMS:  Coming up, your e-mails on dog psychology in the Scott Peterson case.  I said Peterson‘s dog would not have held a grudge.  Stay with us. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, why a poll about people‘s views on the First Amendment kind of defeats the purpose of the First Amendment.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument” - why a poll about the First Amendment kind of defeats the purpose of the First Amendment.  The headline read “Support for First Amendment rebounding from post 9/11 low”.  The article went on to say that more people now believe that the First Amendment does not go too far in the protections it affords than was the case closer to 9/11.  But the First Amendment is not designed to win popularity contests.  As is the case of the rest of the Bill of Rights, they‘re supposed to protect individuals against the power of government and often to protect the minority from the majority.  And since 35 percent of the people questioned could not name any of the rights afforded by the First Amendment, or—quote—“refused to answer” makes the poll all that much more irrelevant. 

The organizations conducting the poll are legitimately evaluating public sentiment about the media and about free speech in this country.  That is important self-evaluation.  But the First Amendment is different.  Once we start heralding polls that say, look, people support the First Amendment, we‘re subjecting ourselves to the changing whims of public opinion. 

In the words of Supreme Court Justice Robert Jackson from 1943 said—quote—“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials.  One‘s right to life, liberty and property, to free speech, free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote.  They depend on the outcomes of no elections.”  Well said.

All right, I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  Last night, one of our panelists suggested that if Scott Peterson actually killed Laci, their dog would have essentially held a grudge against Scott when Scott returned from dumping Laci‘s body and they, that person said, would not have returned to Scott.  I said it‘s essentially hocus-pocus to get into the psychology of the dog. 

Sue Geiss from Pike County Pennsylvania who‘s handled dogs for over 30 years, owns a pet resort, she agrees with me.  “The only time a dog may not go with a person is if they see harm done to their owner - if they see harm done to their owner is if they were specifically trained to protect or to guard.”

From New York City, Marjorie Caruso, who founded and manages a rescue group.  “If the murder is a person that the dog considers its owner, then most probably the dog is not going to be able to determine that this person has done something wrong or sense anything wrong about the person in question.”

And Susan Hendricks in Brooksville, Florida on the theory that Laci was abducted while walking her dog by someone other than Scott Peterson.  “There is no way Laci was walking her dog and got abducted without that dog making all kinds of commotion that would have drawn attention.”

And in my “Closing Argument” last night I said Judge Rodney Melville is overreacting with unprecedented secrecy in the Michael Jackson case.  I said it‘s just unconstitutional.  And that rather than covering, discussing and analyzing the case with accurate information, people will now cover, discuss, and analyze the case with leaks and maybe even some inaccurate information. 

Joanne White, “Your “Closing Argument” about the judge in the Michael Jackson case keeping everything secret is a bit shortsighted.  If we can‘t even depend on the media to report accurate information from the documents right in front of their faces, then Judge Melville certainly can‘t trust them to accurately report the full story with regard to grand jury transcripts and search warrants.” 

All right, Joanne, you know they can‘t even get it right.  Look, I‘m not saying that sometimes the media doesn‘t get it wrong, you know.  You didn‘t see us making any mistakes by reading the document itself.  But if it‘s Judge Melville who is going to make the decision, he doesn‘t have the power to decide what sort of coverage he likes and doesn‘t like.  He‘s just not entitled to do that.  As I just mentioned in my “Closing Argument”, the First Amendment protects against judges or other government officials deciding what they like and don‘t like.  There are laws, there is precedent from the U.S. Supreme Court and the judge is following neither.

Finally, last night we played an old rerun of an episode of the program “Matlock” that initially aired while I was in college.  The reporter covering the courts and questioning Ben Matlock, his name was Dan Abrams.

Terry Hart from Glen Burnie, Maryland says it reminds her of another Dan Abrams.  “That was a real cute bit that you showed from “Matlock”.  I actually remember that episode.  It made me remember also that there was another gentleman named Dan Abrams that lived next door to my grandmother when I was a kid.  He used to eat out of the garbage can.”  All right. 

Your e-mails, abramsreport@msnbc.com.  Please include your name and where you are writing from.  And I‘ve got some business to do here. 

Coming up next, “HARDBALL” with Chris Matthews.  Andrea Mitchell filling in for Chris tonight.  She‘ll be talking with Senator John McCain and Howard Dean...

Thanks for watching.  See you tomorrow. 

END   

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