updated 7/6/2004 2:16:38 PM ET 2004-07-06T18:16:38

Guest: Jeanine Pirro, Gerry Spence, Roy Black

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  The Scott Peterson trial: From a dismissed juror to problematic police testimony, is Peterson‘s girlfriend Amber Frey the prosecution‘s real hope for getting this case back on track? 

The Kobe Bryant trial set to begin in August.  Could that case be even tougher for prosecutors? 

And Martha Stewart to be sentenced later this month.  How much time will she really serve?  Does she have any shot at getting a new trial? 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  On the docket tonight, we‘re five weeks and over 50 witnesses into the Scott Peterson case.  The prosecution trying to piece together a circumstantial case.  The question: Are things really going as badly as some have suggested?  First a quick recap. 

Week one: Retracing Laci Peterson‘s last known steps on December 23, 2002, the day before she‘s reported missing.  Witnesses included the couple‘s housekeeper who said she mopped the house that day.  Why is that important?  Well, Peterson told police his wife was mopping the floor just one day later as he left the house to go fishing.  Now prosecutors believe Laci was already dead and that her husband cleaned up the murder scene. 

Also, the manager of a specialty food store and employees at a day spa testified they saw Laci running some last-minute errands before the Christmas holiday.  The week ending with Laci‘s half sister Amy Rocha on the stand.  Amy, the last person besides Scott Peterson to see Laci alive. 

And this is the key to so many of these witnesses.  She and some of them remember Laci wearing cream-colored pants that night.  Laci‘s body washed ashore in cream-colored pants.  Now again, that convinced prosecutors she was killed the night before she was reported missing.  Peterson had said she was wearing black pants when he left that morning. 

Week two: more of Laci‘s family, her neighbors and the Modesto P.D.  Her family brought on to prove that Peterson told two different stories about an alibi.  He told some he went golfing that day, rather than fishing.  Others talked about Peterson‘s alleged odd behavior after his wife disappeared. 

(BEGIN VIDEO CLIP)

HARVEY KEMPLE, LACI PETERSON‘S RELATIVE:  It‘s the truth.  The man was more upset about his burnt chicken than even thinking about finding his wife.

(END VIDEO CLIP)

ABRAMS:  Week three: Some of the first police officers to respond to the missing persons call giving an almost day-by-day account of their search for Laci.  They testified about what they also believed was more odd behavior from Scott, that he seemed indifferent, et cetera.

Week four: One of the lead investigators on the case, Detective Allen Brocchini, his testimony lasting over a week, but he admitted that he left a key piece of information out of a police report that Laci was spotted, at least someone said they spotted her, near Scott‘s warehouse the day before she was reported missing. 

Now, that‘s important because it could explain how Laci‘s hair got into Scott‘s boat and that‘s really—considered really the only piece of physical evidence that is crucial in this case.  That was a big break for the defense.

Before the holiday break, Shawn Sibley, the woman who introduced Scott Peterson to girlfriend Amber Frey.  Boy, she‘s got to be sorry about that one now.  Peterson told Sibley he lost his soul mate and thought he was going to spend the rest of his life alone and asked her to fix him up with her single friends.  Of course, this is back well before Laci went missing. 

All this testimony and how could you forget, the man formally known as juror No. 5, Justin Falconer, who gave the defense a boost after being dismissed 14 days into the case.

(BEGIN VIDEO CLIP)

JUSTIN FALCONER, DISMISSED PETERSON JUROR:  He‘s an innocent man until proven otherwise.  And that was never my—you know, from day one when they told us, you know they gave us the instruction, it was our understanding that you know he is innocent until, you know, Distaso proves him guilty and he hasn‘t done that.

(END VIDEO CLIP)

ABRAMS:  I‘ve got to tell you, he‘s been on the show a number of times.  Nothing—I told him to this face—nothing would have convinced this guy that Scott Peterson was guilty. 

Let‘s bring in our all-star legal team—criminal defense attorney and NBC News analyst Roy Black, criminal defense attorney Gerry Spence and Westchester County District Attorney Jeanine Pirro. 

All right, let me start with just getting some general sense from each of you about how things have been going in this case so far.  Jeanine, let me start with you because so many have said that the prosecution has really not been up to the job so far, that they have not been presenting a particularly compelling case, and that they‘ve been sort of dropping the ball here.  What do you make of that? 

JEANINE PIRRO, WESTCHESTER COUNTY D.A.:  Well, you know circumstantial cases by definition are ones where you‘re not going to have a smoking gun or you know an eyewitness who will come in and say this is what happened and I saw how Laci died and I saw Scott kill her.  By virtue of the kind of case it is, it‘s going to be slow and methodical, piece-by-piece. 

But having said that, Dan, I don‘t think that anyone can deny the fact that Mark Geragos seems to be outlawyering the prosecution and it pains me to say that. 

ABRAMS:  Let me play this piece of sound from Justin Falconer, again, and I think this is one of the crucial points that he made.  Let‘s listen. 

(BEGIN VIDEO CLIP)

FALCONER:  I‘m not getting a story out of him.  You know, he kind of

bounces around and I‘m not understanding—you know it was kind of—you

know sometimes you‘re sitting there left going what was that for?  I don‘t

·         why was that person there?  What did they bring, you know, him into for? 

So you know I don‘t know, like I say, he‘s a good attorney and he‘s doing what he feels like he has to do, but you know, but it‘s early too.  So maybe later on he was going to hit us with something big.  I have no idea.  But so far, it was, you know, falling asleep.

(END VIDEO CLIP)

ABRAMS:  He‘s talking about the prosecutor there.  Gerry Spence, if you‘re the defense attorney,  I‘m sure “A”, you‘re thinking (UNINTELLIGIBLE) I can‘t believe we have lost this guy on the jury, but if you‘re the prosecutor, do you listen to something like that and say we have got to reevaluate our case?  Do you think the prosecutors are doing that? 

GERRY SPENCE, CRIMINAL DEFENSE ATTORNEY:  Well I don‘t know what the prosecutors are doing because they don‘t have much of a case right now.  Dan, look at this, there isn‘t anything to tie this defendant, Scott Peterson, to this dead body except a marriage license and the fact that they were married.  There isn‘t any showing as to when she died, the time of her death, how she died, and who killed her.

Nobody accepting, you know, these kind of—this kind of crossword puzzle of all these little pieces that are coming in here that they want to try to put together to make a man look guilty, which a good prosecutor could do about anybody. 

So, this prosecutor had better step back, better take a look at what he‘s got, better be straight and honest with this jury.  If he hasn‘t got a strong case, he‘d better say—he‘d better tell the jury exactly where his strength is and prove it. Otherwise...

ABRAMS:  Yes.

SPENCE:  ...if he‘s fiddling around, he‘s going to lose this case. 

ABRAMS:  Roy Black, do you find that prosecutors are often too proud to say, you know what, maybe we haven‘t been pursuing this case the way we should have to the point where these prosecutors might not change their trial strategy at all? 

ROY BLACK, CRIMINAL DEFENSE ATTORNEY:  Well, Dan, you‘re going to have to swallow your pride if that‘s the case.  I think part of the problem here deals with psychological factors that they haven‘t taken in to consideration.  One of the important psychological things in trials is the idea of primacy and recency.  You want to start out strong and you want to end up strong. 

Their problem is they didn‘t start out strong.  If they started out with a strong piece of evidence, then even someone like Falconer can say look, there‘s some evidence of guilt here and start thinking that way.  The problem is they‘ve decided to do this crone chronologically and go through every little piece of evidence and they‘re losing people along the way because they don‘t see something that at least to them seems like it‘s obviously important to the case. 

ABRAMS:  And we‘re going to talk about Amber Frey in a moment.  I just want to read—this is Shawn Sibley, the friend who introduced Amber Frey to Scott Peterson and here‘s some of her testimony.

D.A. Harris says, tell us about it, meaning referring to a conversation.

Scott‘s just sobbing hysterically and he says I‘m so sorry I lied to you earlier.  I have been married.  I lost my wife.  It‘s too painful for me to talk about.  Please give me the opportunity to tell Amber in person.

And I said, Scott, I don‘t care if you‘re widowed or divorced.  All I care about is, are you married right now, and he said no absolutely not.

Jeanine, the argument that people keep making about this is that all men having affairs lie about them.

PIRRO:  Look because you‘re having an affair, it doesn‘t make you a murderer.  But you know, in spite of everything that they‘ve said about him, and make no mistake, this guy is a bald faced liar, he lies on television, he lies to the police, he lies when they show him a picture with Amber on his lap saying that‘s not me. 

But beside all of that, the one piece of evidence that‘s so significant is that he provides the receipt, which shows that he is in precisely the same place where her body shows up, so his alibi is basically the scene where the body was dumped.

Now unless you know and Mark Geragos says that he was being framed and a satanic cult or Donnie in the brown van, that is a huge piece of evidence.  And you don‘t need to have a videotape of a murder, Gerry, and you know this as well as I do, that there are homicide cases that are tried when we don‘t even have a body...

ABRAMS:  Yes.

PIRRO:  ...so the cause of death is not really the issue.  The issue is as it comes together and I think also that the prosecution is changing now, I think they heard Falconer loud and clear and they came into court this week, they‘ve got a little faster pace...

ABRAMS:  Yes...

PIRRO:  ...and hopefully more focus. 

ABRAMS:  Let me take a quick break here.  Everyone is going to be sticking around. 

Coming up: Amber Frey, Scott Peterson‘s girlfriend, she hasn‘t testified yet, but the question, could she be the one to get the prosecution‘s case back on track? 

And the Kobe Bryant trial set to begin in late August.  Many saying this could be a nearly impossible case to win for prosecutors now.

And later this month, Martha Stewart finds out if she‘ll be doing hard time.  How much time?  Our panel will weigh in. 

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, could Amber Frey be the witness to put the prosecution‘s case back on track in the Scott Peterson case?

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

AMBER FREY, SCOTT PETERSON‘S FORMER GIRLFRIEND:  I met Scott Peterson November 20, 2002.  I was introduced to him.  I was told he was unmarried.  Scott told me he was not married.  We did have a romantic relationship. 

(END VIDEO CLIP)

ABRAMS:  Amber Frey: She‘s become a household name and yet we have heard very little from her so far.  She‘s expected to testify about her relationship with Scott Peterson, about the lies he told her before and while hundreds of volunteers combed the area for his wife.  Most of it.  presumably, from phone conversations Frey secretly recorded, at least 241 calls made between November 2002 and February 2003.  An example, this one from January 6, 2003, 13 days after Laci was reported missing. 

Peterson: I have not been traveling during the last couple of weeks. 

I have lied to you that I have been traveling.

Frey: OK.

Peterson: The girl I‘m married to, her name is Laci.

Frey: (UNINTELLIGIBLE)

She disappeared just before Christmas.

(UNINTELLIGIBLE)

For the past two weeks I‘ve been living in Modesto with her family and mine searching for her.

So what else did Peterson admit to in those conversations and what did he tell his girlfriend the night of his wife‘s vigil held just a week after she was reported missing?  Remember, Scott was not on the stage with the rest of his and his wife‘s family.  Instead, he was on the phone with Amber Frey for at least part of that time. 

All right.  Gerry Spence, it‘s not just that he lies to Amber Frey about being married.  He doesn‘t just tell Amber Frey that his wife has passed away.  He also says this and I quote. 

Frey: “Yes, is that why you said you didn‘t want to have any children and Ayiana, her child, was the only child you ever—child you ever see having and at that point assuming we‘re together she would be—you would have her as your own.  Why would you tell me that when you were expecting a baby?

Peterson: Sweetie, I‘m so sorry.  I can‘t tell you everything now.

Frey: Why can‘t you tell me everything?  Why?

Peterson: There is simply—it just has entirely too many repercussions and they‘re not all for me.”

Gerry?

SPENCE:  Well, you know, by this time, he‘s a suspect for murder, isn‘t he?  And anything he says to anybody would be used against him, particularly to somebody like Amber Frey. 

ABRAMS:  But he told her he didn‘t want any more kids.  I mean even the prosecutors quoted Scott Peterson saying I don‘t want to have any more children.  Your child is enough for me.  I‘m evening thinking of getting a vasectomy.

SPENCE:  Well, so what?  I mean lots of people don‘t want more kids. 

As a matter of fact...

ABRAMS:  But he had a pregnant wife at the time. 

SPENCE:  Well he‘s got one baby, but he says I don‘t want any more kids.  But what do we make—what have we got here?  We‘ve got somebody that—we‘ve got somebody here, Dan, who even the police don‘t trust, Amber Frey.  They get a tap on her phone to listen to what she‘s saying to see if she‘s telling the police the truth and they find out that this woman isn‘t telling everything to the police.  That she‘s—shall we say, double-crossing the detectives, so one wonders that if the police don‘t trust their witness, then please tell me why should a jury and why should anybody else? 

ABRAMS:  I‘ll tell you why and I‘m going to go to Roy Black.  Because they have the conversations on tape...

PIRRO:  That‘s right.

ABRAMS:  Roy? 

BLACK:  Well, Dan, I‘m sort of shocked that people are putting so much faith into the fact that Scott Peterson has been lying to his mistress to have sex with her.  I mean look at our recent history from the president on down, everybody lies about sex.  I don‘t think that this proves that he‘s going to kill his wife and unborn child... 

ABRAMS:  Everyone doesn‘t say that—but they don‘t say their wife is dead, they don‘t want to have any more kids.  I mean it goes beyond just—because I think you‘re right.  If this...

(CROSSTALK)

ABRAMS:  ... this goes beyond that. 

PIRRO:  OK...

BLACK:  This is supposed to be a motive that he‘s going to kill his wife who is pregnant because he doesn‘t want any kids to hook up with a woman who has a child.  That really makes a lot of sense...

PIRRO:  No, no, no, no.  Dan, can I say something here?  Let‘s make one thing perfectly clear.  Everybody agrees that because you have an affair doesn‘t mean you kill your wife.  But here is the issue.  We get an insight into the character of Scott Peterson.  He tells everyone he‘s lost his soul mate, his wife is dead, he cries on demand to both Shawn Sibley as well as to Amber Frey. 

Amber Frey has him tape-recorded and—but for that tape recording, both Roy and Gerry would say she‘s lying and we can‘t trust her because she slept with a married man.  But the common theme here is this.  I don‘t want responsibility.  I don‘t want a child.  I want to get a vasectomy and his clairvoyance of his having lost his wife is essentially a prophecy because a week later she ends up missing and dead and even more than that when you get to the next level is he doesn‘t bother looking for her. 

When he should be looking for her and putting up posters, he‘s at the mall, he‘s at a parking lot, and at the vigil, he‘s on the phone with his girlfriend and if he truly cared about his wife who was eight months pregnant, he would have said to his girlfriend, look, I lied to you, my wife is missing.  I can‘t do this emotionally.  I‘m spent.  I have to admit who I am.  Instead, he says when he‘s in the police department, I‘m duck hunting in Maine and he turns the water on in the bathroom. 

ABRAMS:  Roy? 

BLACK:  Jeanine, if he really cared about his wife, he wouldn‘t have been having an affair in the first place. 

PIRRO:  No, no, Roy, you‘re the one who said...

BLACK:  Not only that, but he‘s been having an affair for a couple of weeks...

PIRRO:  Maybe...

BLACK:  This is hardly a long-term relationship...

SPENCE:  Well...

BLACK:  ... he‘s ready to kill his wife over. 

PIRRO:  I‘m not saying that he killed his wife for Amber.  I‘m saying the idea of responsibility and his discussion with Shawn about sex and his being—he‘s a serial sleep-around. 

(CROSSTALK)

PIRRO:  This guy doesn‘t want to be tied...

ABRAMS:  Gerry, Gerry...

BLACK:  That‘s really disgusting. 

ABRAMS:  Gerry, do you think that the defense team is going to have a field day with Amber Frey on cross-examination? 

SPENCE:  They‘re going to have so much fun with her.  I—you know, here‘s this woman that‘s supposed to be his lover, and she‘s recording him on the telephone, and in the meantime, the police are recording her and nobody believes anybody about anything and I‘ve heard something about it, reward money out there, was there some reward money out there someplace, Dan? 

ABRAMS:  Yes, there was...

(CROSSTALK)

ABRAMS:  ... the argument goes that Amber Frey, they say, called the police the day after there was a reward announced. 

SPENCE:  Yes, well what do you think about that?  Now, for 500,000 grand I guess you could do about anything, and so you‘ve got...

ABRAMS:  She didn‘t get the money...

PIRRO:  Did she ask...  

ABRAMS:  She didn‘t get any money.

PIRRO:  ... for the reward?

SPENCE:  You‘ve got—what you‘ve got is some telephone calls set up by a woman that‘s wanting to help the police and at the same time to carry on and double-cross the police and to carry on with this guy, so I don‘t know what you say about it. 

(CROSSTALK)

SPENCE:  And I do say this much. 

ABRAMS:  Quickly, I‘ve got to wrap it up.  Yes.

SPENCE:  I‘m going to say it very quickly.  This guy is a liar, but that doesn‘t mean that he‘s a murderer. 

ABRAMS:  All right, stick around.  Question: Will Scott Peterson testify?  I just—I don‘t see it, but you know, let‘s see what the panel thinks. 

And it was a year ago this holiday weekend Kobe Bryant surrendered to authorities accused of sexual assault.  His trial set to begin in August.  I ask, after all the allegations about the victim‘s past and all the other problems for the prosecution, is there any way they could get a conviction in this case? 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

JUDGE:  Is that correct, Mr. Peterson?  You‘re pleading not guilty to the two charges of murder plus the special—denying the special allegations? 

SCOTT PETERSON, CHARGED WITH MURDERING HIS WIFE:  That‘s correct, Your Honor.  I am innocent. 

(END VIDEO CLIP)

ABRAMS:  That was the last time we heard from Scott Peterson on camera at least, pleading not guilty back in December.  Before his trial was moved out of Modesto, the question so many have asked, will, should Peterson take the stand in his own defense? 

Roy Black, the way things are going I don‘t think there‘s a chance that this guy is going to take the witness stand. 

BLACK:  Well, Dan, I agree with you 100 percent on that one.  Not—first of all, I don‘t think right now that he has to.  I mean if it looks like he‘s going to lose, then he may not have any choice.  The problem is if he takes the witness stand, they‘ll spend two weeks cross-examining him on every lie and every contradiction in the case, and whether guilty or innocent, he‘s going to look horrible, so any lawyer is going to keep him off the stand. 

ABRAMS:  Jeanine.

PIRRO:  You know what, there‘s a greater chance of my pot bellied pig taking the stand in that case.  Scott Peterson cannot take the stand.  He cannot testify.  He is a liar, an admitted liar and nothing can be gained by the defense putting him on the stand. 

ABRAMS:  Gerry.

SPENCE:  Well, I tend to agree with my colleagues here, but I wanted to—I think before I made that decision, I‘d want to hear what Scott can say about each of these kinds of allegations that they‘re making, you know whether he did this or whether he did that, why he did that, and I think I‘d like to see what kind of a cross-examiner the prosecution can provide.  Sometimes you know they fall in their own hole.  And it takes skill to jump in the middle of somebody for two weeks and not turn the tide around.  A jury can get feeling sorry for Scott Peterson.  A jury can get disgusted with the prosecutor, so there are a lot of issues here, one of which is whether or not Scott Peterson himself would make a good presentation to the jury. 

ABRAMS:  Yes.  Well that‘s what I want to play, a quick piece of sound from one of the interviews that Scott Peterson did before he was arrested. 

(BEGIN VIDEO CLIP)

PETERSON:  And since I was the one who saw my wife last, as is the case with many cases like this, and in many, you know, instances, it‘s been shown later that the husband or the boyfriend or whatever it is, you know, was not involved, we‘re suspects. 

(END VIDEO CLIP)

ABRAMS:  Jeanine, I think that his demeanor might hurt him in a way.  I mean, even if it‘s just the way he is, having nothing to do with guilt or innocence, he‘s always very calm and measured the way he speaks.  I mean, I spoke to him a number of times before he was arrested and that‘s the way that he speaks all the time and I‘ve got to believe that—you know again, that just might come across the wrong way.  As Gerry points out, you know it matters how he might come across as a witness. 

PIRRO:  Well you know, I don‘t know that, you know, you can really assess how he‘s going to come across because when you juxtapose that against all of the lies, I mean...

ABRAMS:  Yes.

PIRRO:  ... he will be a bald faced liar in front of this jury and the fact that this jury already knows that he cries on demand saying he‘s not married, that he lost his wife to both Shawn and Amber tells you the guy is an actor and when he‘s confronted with a picture with Amber on his lap, he says that‘s not him, the jury can‘t possibly believe anything—how do you know when he‘s telling the truth. 

ABRAMS:  I‘ve got to wrap it up, but not wrap it up, just this particular conversation.  We‘ve got a couple of the other big trials that are going to be coming up in the next couple of months. 

The Kobe Bryant case set to begin in August.  The trial date has been set.  Over 1,000 people being summoned for jury selection, but the lead prosecutor has been pulling out of the case.  Is there really any chance that Bryant could be convicted? 

And Martha Stewart, she‘ll learn her fate in a couple of weeks.  How much time will she serve? 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, on this special edition of the program, it was a year ago this weekend Kobe Bryant arrested for alleged sexual assault.  This August his trial begins.  Could it be a tough battle for prosecutors? 

First the headlines. 

(NEWS BREAK)

ABRAMS:  We‘re back.  A year ago this weekend, a year ago, Kobe Bryant turned himself in to authorities in Colorado accused of sexual assault.  He had been staying at a hotel resort outside of Vail recovering from knee surgery and according to the arrest warrant, Bryant attacked a woman he met there in his hotel room.  Bryant later admitted having sex with the woman but said it was consensual. 

(BEGIN VIDEO CLIP)

KOBE BRYANT, FACING SEX ASSAULT CHARGE:  I‘m innocent.  You know, I didn‘t force her to do anything against her will.  I‘m innocent. 

(END VIDEO CLIP)

ABRAMS:  Now a year later, a trial date has time finally been set for August the 27th.  Attorneys for both sides have been arguing pretrial hearings over whether the alleged victim‘s past sexual history can be admitted into evidence and over whether to admit a statement Bryant made to the police and whether to admit the shirt he was wearing the night the alleged victim‘s blood was found on that shirt. 

Court officials say they‘re going to summon 1,000 citizens, five times

the standard for a case in Eagle County.  They need to find 12 jurors and a

few alternates to decide the case.  Last week we learned Eagle County

District Attorney Mark Hurlbert, who has sort of become the face of the

prosecution, has picked a team to try the case while he provides—quote -

·         “general oversight” for his prosecutors. 

I said that sounds to me like he‘s trying to distance himself from the case since he is up for reelection in November.  The question—is there any way the prosecution is going to get a conviction here? 

I‘m joined again by my legal team, criminal defense attorney and NBC News analyst Roy Black, criminal defense attorney Gerry Spence and Westchester County District Attorney Jeanine Pirro. 

All right, Jeanine, as the prosecutor on the panel, you know, don‘t you think this is going to be a tough case for the prosecutors?

PIRRO:  Dan, this is going to be a very tough case.  Rape cases by definition are difficult cases because there are rarely eyewitnesses or confessions or admissions.  It‘s generally a defense of consent, which is precisely what we have here.  She wanted it and she consented to it and with this case, a little bit more, she‘s a slut, she‘s a groupie, she‘s mentally unstable, and you know, it‘s not rape.  This will be very, very difficult. 

ABRAMS:  And Gerry, here‘s what I think is going to make it most difficult, and you know, no one—everyone talks about her sexual history as being so important.  This particular passage that I‘ve pulled out from the preliminary hearing of the detective who interviewed the alleged victim when she reported that this had happened, and then talked to her afterwards, here was what happened on cross-examination with Detective Winters. 

She, referring to the alleged victim, did indicate that she had told me in the interviews that she had told him no on a couple of different occasions, meaning while this was happening.

Pamela Mackey:  Well, but you in your report and I‘ll direct you to page one of the discovery, you clearly say I asked the accuser why she never told Bryant no.  You asked her that, didn‘t you Detective?

Winters:  Yes I did. 

Mackey:  And her response was not oh, but I did.  That‘s not how she responded to you, was it? 

Winters eventually says I don‘t recall specifically if she said that.  I mean Gerry that to me is such a big problem for the prosecutors in this case. 

SPENCE:  Yes, there‘s a lot of problems here.  That is a big problem.  There‘s a lot of problems as well.  I mean the fact that she‘s had prior relationships, apparently before and perhaps afterwards, and immediately before and perhaps immediately after suggests something that we need to look at that goes beyond the rape shield law.  The rape shield law says you can‘t bring in her sexual history to get out of the case, to defend your case. 

You can‘t say that she was a slut and prove she was a slut and say therefore I didn‘t rape her because sluts can be raped and whores can be raped and they have a right under the law to be protected.  But in this case, the question may be who injured her and if there is some evidence that she may have been injured by others, all of her prior sexual relationships within that area...

(CROSSTALK)

SPENCE:  ... might well be admissible. 

ABRAMS:  You know, Roy, I would say, you know, you defended one of the highest-profile rape cases that I think has, you know, has been compared to this one, the case of William Kennedy Smith, found not guilty.  I think that that case was an even harder one to defend than this one.  I mean this one really seems to me, and again, I‘m not talking about her sexual history. 

I‘ve got to tell you, I don‘t think this issue of who she had sex with before or after is as important as so many other people have suggested.  You know, I think what‘s really important is what this detective is saying about there being some question as to whether she said no. 

BLACK:  Well Dan, that is a crucial issue and one thing we haven‘t talked about in the last couple of weeks, the defense and prosecution have been sparring over what the jury instructions will be.  And that is particularly crucial when it comes down to the statements you‘ve just brought out now because the question is, what is the issue of consent, whether there‘s a requirement that the defendant know whether or not the woman consented. 

The prosecution does not want the jury to be told that the defendant must know the woman didn‘t consent.  They don‘t want that to be an issue in the case and it‘s just because of that statement that you said, because if Bryant didn‘t hear her say no or if she didn‘t say no, then of course there‘s no way he could know she wasn‘t consenting.  So this is a very crucial issue in this trial. 

ABRAMS:  But is that—I mean what if—Jeanine, what if she was crying and screaming and wasn‘t actually using the word no? 

PIRRO:  You know, the facts and circumstances and her credibility, Dan, will be what ultimately the jury bases their decision on.  You know, Roy can talk about jury instructions and the both sides will argue about them, but the bottom line is, it almost goes beyond that in the sense that the jurors are going to get a feeling for what it was that happened in that hotel room and they will assess this case based upon whether they believe her or not. 

But I have to say one thing, Dan.  Gerry is wrong.  The highest court in the state of Colorado under People against Harris has said that prior sexual encounters don‘t prove that the victim necessarily consented with this defendant and they would not necessarily explain the injuries.  And People against Harris has made it clear, Gerry, that your argument doesn‘t hold water. 

ABRAMS:  But what about the point—I mean the point he‘s making is that look, if the prosecution is going to introduce injuries, and she had sex with someone, let‘s even say the more realistic scenario that she had sex with someone immediately before...

PIRRO:  Before...

ABRAMS:  ... Kobe Bryant, that that could explain where the injuries came from, and not from Kobe Bryant. 

PIRRO:  But the issue is—in order to do that, you would have to be able to prove that the sexual encounter she had before was one where she sustained the injuries, and not a consensual sexual encounter...

(CROSSTALK)

PIRRO:  ... and because of the defense that this Kobe Bryant has chosen, he cannot argue that.  It is a matter of law.  And you know what, Gerry...

ABRAMS:  Quickly...

PIRRO:  ... you say that her prior sexual relationships are very telling.  What do we know about his prior sexual relationships?  Nothing...

SPENCE:  I didn‘t say...

PIRRO:  ... it is only...

SPENCE:  I didn‘t say they were telling at all and your arguments are

about something that I really haven‘t supported.  I‘m trying to say that

this jury is going to decide how she got injured and she can—and the

jury is going to be able to find out how she got injured by bringing in the

·         her prior sexual encounters, just before Kobe Bryant or afterwards, immediately afterwards.  And I don‘t think that there‘s any law on the books that provides that that evidence can‘t be introduced. 

ABRAMS:  Yes.

SPENCE:  The rape shield law simply does another job that you‘ve been mentioning...

ABRAMS:  All right...

SPENCE:  ... and I agree with that. 

PIRRO:  Yes, that‘s People against Harris...

ABRAMS:  I‘ve got to—well, I‘ve got to wrap this up.  You know, I think what would really would be sort of possible here is that it‘s possible that Kobe Bryant walked out of there thinking I didn‘t rape her and that she walked out of there thinking that he did and that‘s why Roy‘s point about what that jury instruction is becomes all so important. 

Coming up, Martha Stewart, how much time will she serve?  Does she have any shot at getting a new trial?

(COMMERCIAL BREAK)

ABRAMS:  Back in March, Martha Stewart convicted of conspiracy, obstruction of justice, lying to federal investigators in connection with her sale of that ImClone stock.  Later this month she‘s expected to be back in the courtroom to be sentenced.  Now, most experts believe that under the federal sentencing guidelines, she can expect to serve between 10 to 16 months in probably a minimum-security federal prison. 

Since her convictions, Stewart‘s attorneys have filed two motions asking the judge for a new trial.  First they said one of the jurors deciding the case lied about his criminal past.  The judge denied that request.  The latest filing, Stewart‘s attorneys point to a prosecution witness who has been indicted for lying on the stand during the trial.  They argue that testimony of ink expert Larry Stewart, no relation to Martha, is—quote—“pivotal scientific corroboration to a prosecution based primarily on circumstantial evidence.”

Simply stated, a verdict that rests upon such a corroded foundation cannot stand.  The government responded—quote—“The defendant‘s motion failed because they cannot meet their burden to show that Mr. Stewart‘s false testimony had any effect on the jury‘s verdict.”

All right, Roy Black, before we get to the sentence, the possible sentence Martha Stewart could face, I don‘t think she has got—I‘m not saying it‘s an illegitimate argument.  Look, there‘s a guy being tried for perjury, for testifying in this case, but I don‘t think it‘s going to lead to a new trial. 

BLACK:  Well technically under the way the law states today, it‘s going to be a tough argument for her.  But personally, I think it has a lot of force to it because Larry Stewart, who was a director of the Secret Service Crime Laboratory, obviously lied about something.  He‘s being charged with perjury.  Perjury has to be material. 

In other words, it has to have some effect on the case.  And in this case, the notation, “at 60”, went right to the case, whether or not she and her broker had a deal to sell the stock when it went under 60.  So I think his testimony is pretty important and I‘ll tell you what.  It‘s important that people see that justice is done in our courts.  And I think based upon what happened with the juror and now with this witness, I would lead towards granting her a new trial just to keep the integrity of our system of justice. 

ABRAMS:  I don‘t know.  Jeanine, look I think that this is a legitimate issue for the defense to raise.  But the bottom line is that you know Bacanovic wasn‘t even convicted on the particular count that related to the “at 60” notation that was really at the heart of Stewart‘s testimony.  And it seems that—you know look, it seems according to the authorities that he lied about whether he was there, whether he watched certain things, but it really doesn‘t go to what she was convicted for. 

PIRRO:  I would be very surprised if Judge Cedarbaum made the decision to grant a new trial based upon the perjury of Larry Stewart, which is essentially Larry Stewart feathering his own nest, blowing his own horn, saying I was there at the time of the first test.  And when you look at the effect on the jury and Roy and I disagree on this, the jury acquitted on those counts having to do with the notation of “at 60”.  Clearly, though, I think all of us want to feel more comfortable about a criminal courtroom and that they‘re being clearly honest testimony.  But whether or not this rises to the level of getting her a new trial, I don‘t think it‘s going to happen. 

ABRAMS:  Gerry.

SPENCE:  Well, legally I think Jeanine is probably correct.  But, there is a need in this country to have some sense of confidence in the justice system.  And justice—it‘s hard for me to recognize that here is a principle witness in an important case like this who is guilty of five or six counts of perjury in the very case in which Martha Stewart is convicted.  Now you can go around and talk to people, ordinary people and see if you can make them understand why Martha Stewart, who really wasn‘t seen as an evil devil, that most people wanted to get convicted under the circumstances anyway, how those people are going to understand the technicalities that we‘re talking about and how this is going to affect the justice system that we all would like to embrace and to love. 

So I think that this judge might well say, you know, there is a smell test to give this case.  Something is wrong here.  If the prosecution can find something wrong with six counts of perjury, with this witness, what else went wrong with this case?  Just to be sure, he‘s going to say, I‘m going to give her a new trial and see if they can do any better a second time. 

ABRAMS:  You know, in our next block, I‘m going to ask you to sort of assess what you think the sentence exactly should be.  But, Jeanine, legally here we‘re talking about a 10 to 16 range, but the judge really can depart upward or downward from that, right?

PIRRO:  The judge can depart upward.  I don‘t know that that‘s going to happen.  I don‘t know that the prosecution is even looking for that.  And one of the reasons a lot of people believe that Martha did not take the stand was that until the Supreme Court came down with a decision last week was something that the judge could consider as part of an upward modification...

ABRAMS:  Yes.

PIRRO:  ... and indicative of no remorse.  But...

(CROSSTALK)

PIRRO:  ... you know I think the key here is that the judge can in that 10 to 16-month period make half of it...

ABRAMS:  Yes.

PIRRO:  ... serve at home. 

ABRAMS:  Yes, yes...

PIRRO:  That‘s where I think the judge might...

ABRAMS:  All right...

PIRRO:  ... benefit...

ABRAMS:  Coming up...

BLACK:  Dan...

ABRAMS:  Very quickly Roy.  Very quickly.

BLACK:  I don‘t think the judge can depart upward after Blakely v.

Washington...

PIRRO:  Right.

BLACK:  The U.S. Supreme Court basically said unless it‘s alleged the indictment...

(CROSSTALK)

BLACK:  ... you cannot...

(CROSSTALK)

BLACK:  ... upward departure...

ABRAMS:  Roy‘s talking about a case in the U.S. Supreme Court that just came down...

PIRRO:  Which is a good decision.

ABRAMS:  ... and which could—which—made everyone in the federal system say what‘s going on now with regard to our federal sentences. 

Coming up, my panel‘s predictions on the three big cases we‘ve talked about...

(COMMERCIAL BREAK)

ABRAMS:  Coming up, my panel‘s predictions on the Scott Peterson, Kobe Bryant cases and the Martha Stewart sentence...

(COMMERCIAL BREAK)

ABRAMS:  Got a few minutes left in the special edition of the program, so I want to head around to the panel and figure out predictions as to what are my panelists think will happen in the three cases we‘ve been talking about.

All right, Gerry Spence, let me start with you.  On the—again, I‘m not asking anyone what they think should happen.  I‘m asking what they think will happen.  Scott Peterson case, Gerry. 

SPENCE:  First thing I would like to do would be to see in court the dynamic that‘s going on between the lawyers on both sides, the judge, and the defendant.  If you can see that, you can almost predict the case irrespective of what the evidence is.  But assuming that this prosecutor isn‘t any greater of a bright star than we‘ve heard, and Geragos continues to do what he‘s doing, I think we‘ll find a—beyond a reasonable doubt hasn‘t been proved, not guilty and...

ABRAMS:  All right, Kobe Bryant...

SPENCE:  ... and I think that that‘s probably going to be the same thing with Kobe Bryant.  Bryant is—he‘s got good lawyers.  That appears to be the fact...

ABRAMS:  Yes.

SPENCE:  ... I don‘t know how good this new team is going to be, but I would predict that Kobe Bryant is going to walk out...

ABRAMS:  All right.  And Martha Stewart, sentence? 

SPENCE:  Well, you know they‘re not going to go up against -- 10 to 16 months, everybody is going to say that‘s enough.  They‘re not going to dump it up and they‘re not going to dump it down. 

ABRAMS:  All right.  Roy Black, Scott Peterson. 

BLACK:  I don‘t think there‘s enough evidence to convince 12 people to find him guilty, but there is enough evidence to raise some suspicion, so I think there‘s going to be a hung jury. 

ABRAMS:  Kobe Bryant.

BLACK:  I think Kobe Bryant will be found not guilty in less than an hour. 

ABRAMS:  Wow! And Martha Stewart. 

BLACK:  Martha Stewart right now is at a guideline 12 under the guidelines.  Under Blakely v. Washington, the prosecution cannot go any higher.  A guideline 12 is in zone C, which allows for a split sentence.  She could get 10 to 16 months.  I don‘t think the judge will do that.  She‘s going to give her six months in a halfway house and six months at a home confinement. 

ABRAMS:  Jeanine Pirro, let‘s start with the Peterson case. 

PIRRO:  I think there‘s a lot there but I think a lot depends on the lawyering, both in the Peterson case as well as Kobe.  I think there‘s some great defense lawyering going on.  But I think ultimately if the prosecution does follow through on their opening statement, the jury will convict.  But you know what?  Having heard juror number five, the one who was bounced, I‘m a little worried...

ABRAMS:  Yes.

PIRRO:  ... about who‘s on that jury. 

ABRAMS:  Kobe Bryant.

PIRRO:  Kobe Bryant, tough case.  Rape cases are tough.  I‘m a little worried about that one.  And I want to say more than that because I‘m a prosecutor. 

ABRAMS:  All right...

PIRRO:  And Martha Stewart...

ABRAMS:  Martha Stewart...

PIRRO:  ... Roy and I agree.  I think split sentence, 10 to 16, half home monitoring, half in.

ABRAMS:  I almost agree with Roy Black exactly on my predictions.  I think that Scott Peterson, hung jury.  I think Kobe Bryant, not guilty.  And I think that Martha Stewart, I think there‘s going to be a split sentence.  I think it‘s going to be even lower.  I think it‘s going to be a 10-month sentence.  Five months home detention, five months serving time. 

And again, we‘re all talking about what we think will happen, not what we think should happen.  Big difference between those two.  But you know, it is always early in these cases.  The Kobe Bryant case hasn‘t even started, although again, we did see the preliminary hearing.  We heard much of the evidence there.  We‘ve seen what has been happening since then.  But boy, if that witness gets on the stand and she‘s entirely credible...

PIRRO:  Right.

ABRAMS:  ... we could be having an all-new conversation about this. 

All right, a good show.  Roy Black, Gerry Spence and Jeanine Pirro—by the way everyone, look at Roy—look at Gerry Spence‘s background (UNINTELLIGIBLE)...

(CROSSTALK)

ABRAMS:  What a beautiful place.

SPENCE:  That‘s the back door of my house. 

ABRAMS:  All right, the back door of Gerry‘s house. 

All right.  Stay with us all summer.  We‘re going to have full coverage of all of the big cases—Scott Peterson, Kobe Bryant, Martha Stewart.  We didn‘t even talk about Michael Jackson today.  Of course, this is the program to watch for coverage (UNINTELLIGIBLE).

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

Coming up next, “HARDBALL” with Chris Matthews. 

Thanks for watching and I hope you‘ve been having a great July 4 weekend.  Hope—maybe you had to work today.  I‘m sorry if you did.  See you.

END   

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