updated 7/7/2004 9:28:03 AM ET 2004-07-07T13:28:03

Guest:  Larry Pozner, William Fallon, Gloria Allred, Ed Turlington, Victor Schwartz, Peter Cohen, Art Caplan

JOE TACOPINA, GUEST HOST:  Coming up, another investigator in the Scott Peterson case testifies about Scott having lied about having an affair with Amber Frey. 

(BEGIN VIDEOTAPE)

TACOPINA (voice-over):  And on the stand, the man who discovered Laci Peterson‘s unborn baby Conner in San Francisco Bay. 

Plus, John Kerry picks John Edwards as his running mate.  We‘ll look at Edwards‘ track record as a trial lawyer. 

He was battling an addiction to prescription painkillers and serving as one of vice-president‘s Cheney‘s doctors at the same time.  Should you have a right to know if your doctor is on drugs? 

The program about justice starts right now. 

(END VIDEOTAPE)

TACOPINA:  Hi everyone.  I‘m Joe Tacopina.  Dan is off today. 

First up on the docket, day 19 in the Scott Peterson trial.  Court is back in session after a long holiday weekend. 

MSNBC‘s Jennifer London is live outside the courthouse with all the details—Jennifer. 

JENNIFER LONDON, MSNBC CORRESPONDENT:  Well, Joe, the prosecution continues to assault Scott Peterson‘s character, calling yet another witness to testify that he lied about having an affair with Amber Frey.  This morning, we heard from Douglas Mansfield.  He is an investigator with the California Department of Justice.  He was called in to help with the investigation by the Modesto Police Department.  Mansfield interviewed Peterson the day after Laci disappeared. 

The prosecution saying Scott told you he had no problems with others. 

No problems with his wife and he never had a fight in his life. 

Mansfield:  Yes. 

The prosecution:  Scott told you his relationship with his wife and his family was good.

Mansfield:  Yes.

Mansfield said he talked with Peterson for more than two and a half hours.  He did concede under cross-examination that during that time Scott was very cooperative. 

And Laci Peterson‘s family was at the courthouse today as they always are, but they did not spend much time inside the courtroom.  This as testimony turned to the discovery of baby Conner‘s body.  It was discovered along the San Francisco shoreline, the bay, on April 13.  We heard from Michael Looby.  He was out walking his dog that day when he discovered the body. 

The prosecution saying did something attract your attention?

Looby saying yes.

What was it?

It was a body of a small baby.

The prosecution:  When you saw this body, did you, could you tell it was a baby?

Looby:  I knew right away what it was.

We also heard today from members of the nearby fire and police department that were called in when the body was discovered.  This would be the city of Richmond.  We heard from one officer testifying that when he saw the body, he did see some plastic material around the baby‘s neck.  The prosecution spending a lot of time establishing the exact location the body was found, describing the rocky shoreline and the marshy mud flat where the body was discovered—Joe.

TACOPINA:  Jennifer, just one question.  Did—this Mansfield, the Department of Justice, State Department of Justice investigator, did he bring forth anything new to the table for the jury to hear or was it sort of the same old? 

LONDON:  Joe, it was really the same testimony we‘ve heard from many witnesses, both friends, family, and law enforcement officers about Scott Peterson‘s, if you will, admitting or denying in this case his affair with Amber Frey.  He didn‘t offer anything new other than to say that yes, he also talked with Peterson and Peterson told me that he was not having an affair.  His position was really just to reiterate what we‘ve already heard. 

TACOPINA:  Thanks, Jennifer. 

So what‘s the prosecution trying to do here?  It seems like they keep calling the same witnesses to emphasize two keys to their case.  One, Scott‘s behavior and alleged lies about whether he had affairs. 

Joining me now, criminal defense attorney Larry Pozner, victims‘ rights attorney Gloria Allred, who is also the attorney for Amber Frey, who‘s expected to take the stand later this month, and former prosecutor Bill Fallon who ran the Sexual Assault and Child Abuse Unit in Boston.  Welcome to you all.

Larry, let me start with you.  I asked Jennifer this last question why this witness Mansfield, what does he bring to this jury other than what the jury, one, already knows, that Scott Peterson had an affair, and two, something that the jury is not going to hear any debate or argument over, the defense has conceded that in their opening that their client is so to speak a cad and also someone who cheated on his wife.  But the prosecution has now called at least three witnesses to say he had an affair.  What do you think goes on in the minds of the prosecution when they do this? 

LARRY POZNER, CRIMINAL DEFENSE ATTORNEY:  The prosecution is ramping up to Amber Frey as a way of making her testimony more powerful, more important, they support her with a group of people who say, Scott Peterson didn‘t tell me the truth about the affair.  Then when Amber goes in to great detail about the affair, it‘s supposed to strike the jury as even more poignant and even more powerful and it may indeed work. 

TACOPINA:  You know, my concern though is especially in this day of electronic media and, you know, people wanting to get their information and come to conclusions as quickly as humanly possible, which is why opening statements are so important, is there any concern—I mean, you‘re a defense attorney, Larry, but do you think the defense may be getting some sort of an upper hand with the prosecution potentially lulling this jury to sleep? 

POZNER:  If you‘re going to put on cumulative evidence witnesses as a prosecutor, you need to call them quickly.  You need to be efficient and in a trial that‘s already 19 days long, you have to get to it in six minutes, not in 60 minutes, and the problem is every time a prosecutor calls a witness, if they misalign, if they put in a fact that isn‘t true, if they distort something, they give the defense one more angle of attack, so you know, there comes a point where the prosecution should say we‘ve scored our point, let‘s go with Amber and tell the rest of the story. 

TACOPINA:  Hey Bill, you‘re a former prosecutor.  You know, as a prosecutor, you have to be worried about a jury not connecting the dots in a circumstantial evidence case.  Now juror number five aside, I mean he‘s someone who unfortunately, you know, violated all sorts of oaths as a juror, but the one thing he said was, they haven‘t given us anything yet, you know, and you don‘t know if he was speaking for the other 11 there or not, but you have to be concerned as a prosecutor that you know they have some stuff in the background, I assume, on this wiretap evidence that they‘re going to bring forth that may really be damning to Scott Peterson.  Don‘t you think they should start getting to it sort of soon? 

WILLIAM FALLON, FORMER PROSECUTOR:  Joe, I think that that seems to be the issue here.  You know, I‘ve always had problems with the way they opened the case, the way they‘re presenting the case, easy to backseat quarterback the prosecutor.  I know they want to be slow, methodical, build those little pieces to a road that proves conclusively beyond a reasonable doubt, but it does seem that if they‘re going to take six months to do this, they better be very careful why they‘re doing all of this. 

I‘m not sure there is any explosive evidence, in fact, on the tapes.  I think the only thing you can say is the reason they‘re bringing the cumulative evidence here is to say you know what, big deal, now the defense is saying of course he had an affair, of course we‘ll stipulate to that.  But I think a good prosecutor says the only reason they‘re stipulating to that or telling you everybody knows that is because we step-by-step proved all of this. 

But I will tell you, I think there is a risk run because if I‘m the defense here I say the one thing we‘ve proved beyond a reasonable doubt is that he‘s an adulterer and nothing else, so I think that that is always the risk.  On the other hand, I think the prosecution about these facts, remember, he said last week—testimony comes out that he says I lost my wife to one of two people.  Once you mention dead wife, this—and before she‘s dead, this really tends to corroborate it.  Most defendants have not said I‘ve lost my wife.  So that‘s really where it becomes a little more important that he in fact is the cad, the lying adulterer that he is, because that gives a little more motive than just I was fooling around on my wife.  He‘s mentioned she‘s dead. 

TACOPINA:  Gloria, and—to follow up on Bill‘s point, I mean you and I have debated this and even agreed on this on other shows.  I mean, you‘ve always been one to say that the evidence in this case that will damn Scott Peterson will be Scott Peterson.  You know, maybe you know a little bit more about what‘s on those wiretaps than others because of your connection to the case, representing Amber, but putting all that aside, I mean, if things are going to come before this jury, evidence of Scott Peterson having a phone conversation about his wife being gone before his wife is gone or supposedly gone, if there‘s going to be talks on the wiretaps where Scott Peterson is having a conversation with his mother saying, you know, take all this baby stuff, we don‘t need it, only days after his wife is—and unborn child are gone missing, and then later saying, oh you know maybe we should hold on to it for appearances sake, you know, that‘s the kind of stuff that I think is powerful evidence in this case, unlike everything we‘ve heard so far.  Do you have agree? 

GLORIA ALLRED, AMBER FREY‘S ATTORNEY:  Well, I‘m not going to comment on what is going to be on the recordings, except inasmuch as some testimony has already come in, in the preliminary hearing and of course there was mention in the opening statement, which of course is not evidence, but it‘s a preview of the evidence of what will come in, and I do think that it is powerful that at least two people either have or will testify that Scott said that he had lost his wife and—to Amber and these would be the first holidays without her prior to Laci ever having disappeared.  I think that‘s powerful.

As to the testimony today, Joe, it isn‘t just that he‘s an adulterer.  He is an adulterer who lies to law enforcement, who are out there with one mission—to find his missing pregnant wife.  He lies about whether or not he‘s had a relationship with someone else.  This is relevant evidence—relevant information to law enforcement. 

So this man is so much more than what Mark Geragos would like to call a cad.  A cad is somebody we think of as just maybe having a couple of martinis, somehow something that is fashionable.  This is a person who lied to law enforcement, lied to the press, lied to Amber, lied to her—Laci‘s family.  You know, this is a person who has serious problems with the truth. 

FALLON:  And Joe...

TACOPINA:  Larry very quickly, let me just ask you, bring Larry back into this from the defense perspective.  I mean one thing Geragos did though is he‘s conceded that his client lied about having an affair, which I don‘t think even shocks the conscience.  I mean the fact that he had an affair is bad enough, but I mean I don‘t think—the fact that he lied about it is so horrific.  I don‘t think it‘s any worse...

(CROSSTALK)

TACOPINA:  ... but what Geragos did on cross of that first witness, Mansfield, the Department of Justice investigator, was go through line by line of all the truths, the accurate statements Peterson gave to the investigator from day one. 

POZNER:  Right.  Circumstantial evidence cases always provide unusual problems for the prosecution, because if the circumstances do not point to guilt beyond a reasonable doubt, jurors walk away.  They want an eyewitness.  So far the circumstances have made Scott Peterson not a very nice guy, but the jurors know people who have been adulterers, who have had an affair and they didn‘t kill anybody, so the jurors are not likely to go from you had an affair and you lied about it to you‘re a murderer. 

FALLON:  But Joe...

ALLRED:  Joe, let me...

(CROSSTALK)

ALLRED:  May I say something, Joe, because that‘s—you know there‘s something more than you‘re an adulterer, you had an affair.  I mean how many adulterers, as have been pointed out, have their wife and son-to-be body wash up a couple of miles from where they went fishing.  And by the way today, there was also testimony that you know he gave maybe less than the truth about something else.  There was testimony by the Department of Justice witness who said that Scott told him that the last time he saw Laci that Laci was wearing black pants and a white top.  That‘s not what her body was in when the body washed up. 

TACOPINA:  OK...

(CROSSTALK)

TACOPINA:  ... Gloria...

(CROSSTALK)

TACOPINA:  Hold on, guys.  We‘ll take this up on the other side of this break.  Larry, Gloria and Bill stay with us. 

When we come back, we‘ve been hearing about how the one lead detective in this case may have given false and misleading testimony while on the stand.  Well, we thought that to be addressed this morning in court when court began and it certainly was.  Jennifer London will be back with the details. 

And later, he made his fortune as a trial attorney before running for Senate, now John Edwards is running for vice-president.  But what was he like as a lawyer? 

And he was once one of the vice-president‘s personal doctors, but he was also addicted to painkillers at the same time.  Dick Cheney knew about it, but the medical board that investigates doctors did not. 

Your e-mails, send them to the abramsreport@msnbc.com.  Dan tries to respond at the end of the show to all of them.

(COMMERCIAL BREAK)

TACOPINA:  Coming up, the lawyers in the Scott Peterson trial start their day meeting behind closed doors with the judge.  What were they talking about?

(COMMERCIAL BREAK)

TACOPINA:  Before the Scott Peterson trial resumed this morning after a break for the holiday weekend, attorneys for both sides met with the judge behind closed doors in his chambers. 

MSNBC‘s Jennifer London is with us again from outside the courthouse for more on what they may have been talking about.  Jennifer, what‘s your take on this? 

LONDON:  Well, Joe, that is a very good question, other than a brief apology, Judge Delucchi offered no explanation when court finally did get underway this morning after almost an hour and a half delay, but here‘s what we can tell you.  Detective Allen Brocchini was seen inside the courtroom this morning.  His name I‘m sure is quite familiar.  He is the lead detective in this case and he spent five days testifying and he was excused as a witness, so the question is, why was he back in court this morning?  Did it have anything to do with both sides meeting behind closed doors? 

We know that some of Brocchini‘s testimony has been called into question, specifically the testimony he gave about a tip from a college friend of Scott Peterson‘s who says Scott told him what he would do to dispose of a body if he ever killed someone.  Brocchini talking specifically that this friend said Scott said he would wrap a plastic bag around the body‘s head with duct tape.  Now it‘s the duct tape part that has been called into question.  The defense raising some concerns that duct tape was never mentioned in the tip, perhaps Brocchini embellished.

Now, if the defense is able to prove that some of Brocchini‘s testimony was inaccurate, it may support their claims that some police officers from the Modesto Police Department have been lying.  Remember, Joe, the defense says that the Modesto Police Department has had tunnel vision, if you will, that they focused only on Scott Peterson while ignoring other evidence and possibly other suspects.  So we‘ll have to wait to see what happens with Brocchini, and if he‘ll be called back to clarify some of his testimony. 

TACOPINA:  Jennifer, that‘s what I was going to ask you.  I mean do we have any read on whether or not they‘re going to call Brocchini back to the stand later this week or is that still something that‘s as much a mystery as everything else that happened behind closed doors this morning? 

LONDON:  It‘s still a mystery, Joe.  They‘re being really hush-hush with all of the witnesses.  The witness list is still sealed in this case, so we don‘t know from day-to-day who is expected to testify and they certainly are not giving us any insight into what will happen with Brocchini, if he will be called back or not, so we‘re simply going to have to wait and see. 

TACOPINA:  Thank you very much, Jennifer.  And I guess this begs the question, so why is Brocchini‘s embellishment such a big deal. 

Back with me now are criminal defense attorney Larry Pozner, victims‘ right‘s attorney Gloria Allred, who is also the attorney for Amber Frey, who may take the stand later this month, and former prosecutor Bill Fallon who ran the Sex Crimes and Child Abuse Unit in Boston.

And Bill, let me start with you.  We‘re talking about the embellishment and whether or not the defense is going to be able to establish that he embellished because he had such a vested interest in the outcome of this case.  But as a prosecutor, I mean, you know, I guess it‘s sort of a bad fact that your lead investigator embellished, but it‘s not a bad fact to have come before this jury the notion that Scott Peterson, according to Brocchini‘s testimony, told a friend that he would tie a bag around the neck to dispose of a body that he would kill—tie a bag around the neck, put weights on the hands and throw it into a bay. 

So the—this, you know, the fish and all the things that live under the sea there could chew away at that body and therefore make it undetectable.  I mean that‘s still a pretty explosive fact, that whether or not the police thought it was credible or whether or not this investigator embellished a little bit on it.  If the jury believes that came from Scott Peterson‘s mouth, it‘s hanging in that jury room and everyone heard it.  The prosecution has got to love that. 

FALLON:  Joe, it‘s the best piece of evidence they could ever hope for.  As you know, in most jurisdictions, you couldn‘t possibly get this kind of information in.  I know how they did it.  They tried to say all of these facts, they were just going for the jugular constantly, so Brocchini and the prosecution could say look we had this bad fact, but we—against Scott Peterson and we didn‘t look at it.  It seems they got that in through the back door, but to tell you the truth, it‘s the most explosive piece of evidence and Geragos, as great as he is on certain things, has to be very careful, because if you call Brocchini back and say so let me get this clear, you kind of fudged the duct tape theory and all of a sudden the prosecution says, so let me get this straight. 

You weren‘t thinking about this coming in because you really didn‘t think it was reliable.  You had turned it all over, the phone call and the tip anyway to the defense so they already knew about it, but let‘s go back over what we really had.  If I‘m going into that jury, that is hanging like the biggest piece of evidence.  In fact, bigger than any circumstantial evidence I‘ve ever put in, in a homicide case. 

TACOPINA:  Larry, defending though, I mean you‘re going to simply say that first of all, let‘s put the statement aside, it wasn‘t credible then.  It‘s not credible now.  It wasn‘t credible enough for the police to even take a second look at it, first of all. 

Secondly, it goes to show you that this guy is adding in the most crucial fact, which is the duct tape element, which is what ties, you know, that statement to the way they found Conner, the unborn child.  It shows this guy is so vested in the outcome that he‘s willing to add in crucial facts.  How can you rely on anything he says in a circumstantial evidence case, Larry?  Isn‘t that a major homerun? 

POZNER:  This is a homerun in both directions.  I must confess, I cannot figure how the prosecutors ever got a judge to admit this unreliable...

TACOPINA:  Unbelievable.

POZNER:  ... evidence, but it‘s there, and it would have been just wonderful for the prosecution.  But then you have a lead detective add a fact that is absolutely incorrect and you have to ask yourself, who prepared this detective?  He should have known the statement combed.  So here‘s where we are.  If the jurors are divided and are still neutral, this plays both ways and, you know, who knows where it goes in the end.

But when the jurors begin tipping one way or the other, it takes on greater significance.  So if the prosecution keeps putting on witnesses, that the defense shows are biased, this will be looked on as a good day for the defense.  If the prosecution builds a great circumstantial evidence case, this will be looked on as a piece of evidence that helped lock in all the circumstances. 

FALLON:  Larry, Larry, can I just ask you, do you think that that fact, and I think it is a bad fact for the prosecution here, that they might have to go back on the tape, but if I‘m a prosecutor, God knows how he got it in, but if I am the prosecutor I‘m just glad...

TACOPINA:  Bill...

FALLON:  ... that they heard about something in the water...

TACOPINA:  Bill wait -- $64,000 question.  Gloria, is Amber on the stand this week?  We just, you know want to set our schedules...

ALLRED:  No, Amber is not on the stand and we don‘t have a date yet as to when she will testify.  But talk about embellishing...

TACOPINA:  OK...

ALLRED:  ... what about Scott Peterson...

TACOPINA:  ... that wasn‘t...

ALLRED:  ... embellishing...

TACOPINA:  ... that‘s not the answer to my question.  OK...

ALLRED:  Joe, wait a second.  Because you know there was testimony today...

TACOPINA:  Go ahead.

ALLRED:  ... that Scott Peterson said to the Department of Justice employee who was talking to him right after Laci disappeared that Laci on her last day had gotten up, was having breakfast and was mopping.  Now, how many women in America think that she was really mopping right after breakfast when the housekeeper had been there the day before?  Are we supposed to believe Scott Peterson on that too? 

FALLON:  He probably thought she was fishing...

TACOPINA:  You know...

FALLON:  ... with her friends. 

TACOPINA:  Guys, we have to go.  I mean we could do this for hours and it‘s so interesting.  We‘ll see where this takes us.

(CROSSTALK)

TACOPINA:  Larry Pozner, Gloria Allred...

POZNER:  Sure.

TACOPINA:  ... and Bill Fallon, thanks for joining us. 

(CROSSTALK)

TACOPINA:  There‘s more (UNINTELLIGIBLE) in trial news to come though.  When we come back, the district attorney in charge of this case is facing some legal trouble of his own.

And also later, John Edwards went from working as one of the nation‘s top trial lawyers to the Senate.  Now John Kerry wants him to be his vice-president.  We‘re going to take a look at Edwards‘ track record as an attorney and why some say he is not good for America. 

(COMMERCIAL BREAK)

TACOPINA:  Now more on the Scott Peterson trial.  The man in charge of overseeing the Scott Peterson case, Stanislaus County District Attorney Jim Brazelton may be in some legal trouble of his own.  A grand jury investigating the D.A. issued a scathing report last week about threats he allegedly made to members of the press.

MSNBC‘s Jennifer London is back again with details.  Jennifer, what is going on?

LONDON:  Well Joe, more controversy surrounding the D.A.‘s office in Modesto.  On Friday, a civil grand jury found that James Brazelton, D.A.  for Stanislaus County, conducted numerous acts of misconduct, willful misconduct, I should add, violating the county‘s anti-violence policy.  Now according to reports, in August 2003, Brazelton made at least three hostile comments to two newspaper reporters from “The Modesto Bee”.

In one case, Brazelton reportedly took his gun out of his holster while making an inappropriate comment.  The other time he pretended to be holding a gun and pretended to shoot a wastebasket.  Now, the grand jury is asking to publicly rebuke Brazelton.  They did not recommend any criminal charges.  This is a civil grand jury and they cannot hand down any indictments. 

So the question is, will this at all have any effect on the Peterson trial?  Well it‘s a little too early to tell, but Joe keep in mind, Brazelton is Rick Distaso, the lead prosecutor on the Peterson case, it is his boss. 

TACOPINA:  Jennifer, I mean the answer is it absolutely should not have any effect.  The only way it‘s going to have an effect—it won‘t come into evidence, it‘s not relevant to Peterson‘s guilt or innocence—is does the jury not listen to the judge and go and watch THE ABRAMS REPORT or read this in the newspaper, and find out that this prosecutor may be a little bit missing, you know, a notch or two upstairs. 

I mean that‘s the only way it could have any effect whatsoever.  But we‘ll stay tuned, Jennifer.  Thanks. 

Coming up, John Kerry picks fellow Senator John Edwards to be his running mate and before he was in the Senate, Edwards made his name as a trial lawyer.  How good was he?  Well, we‘ll talk with a lawyer who used to practice with him. 

And should you have the right to know if your doctor is addicted to drugs?  One of Vice President Cheney‘s doctors was. 

Your e-mails, send them to the abramsreport@msnbc.com.  Dan reads them at the end of the show.

(COMMERCIAL BREAK)

TACOPINA:  Coming up, John Kerry makes his pick for V.P., a man who was once one of the nation‘s most feared attorneys in America.  We‘ll look at John Edwards‘ track record as a trial lawyer, but first the headlines. 

(NEWS BREAK)

TACOPINA:  Welcome back to THE ABRAMS REPORT.  I‘m Joe Tacopina sitting in for Dan. 

John Kerry‘s vice-presidential pick was probably the best-kept secret of the 2004 presidential campaign.  Not anymore. 

(BEGIN VIDEO CLIP)

SEN. JOHN KERRY (D), PRESIDENTIAL CANDIDATE:  I have chosen a man who understands and defends the values of America.  A man who has shown courage and conviction as a champion for middle class Americans and for those struggling to reach the middle class.  A man who has shown guts and determination and political skill in his own race for the presidency of the United States.  A man whose life has prepared him for leadership and whose character brings him to exercise it.  I am pleased to announce that with your help, the next vice-president of the United States of America will be Senator John Edwards from North Carolina. 

(END VIDEO CLIP)

TACOPINA:  But John Edwards was also one of the nation‘s most feared trial lawyers, winning more than $152 million for clients and himself in a series of personal injury trials in his home state of North Carolina.  Edwards says his clients‘ cause was his cause, but a defense attorney and former state judge who opposed Edwards in court told “The New York Times” that the would-be V.P.—quote—“Paints himself as a person who is serving the interest of the downtrodden.  Actually he was after the cases with the highest verdict potential”—end quote. 

A potential realized when Edwards took on doctors who delivered brain-damaged children in at least 20 separate trials and won settlements of over $60 million.  Edwards argued the doctors misread fetal heartbeat monitors, starving the infants of oxygen in the womb and condemning them to cerebral palsy and in 1997 Edwards won a $25 million settlement for a couple whose daughter was injured in a swimming pool.  His own fortune from these settlements is estimated to be somewhere between 12 and $60 million.

So, is the nation ready for a multimillionaire trial lawyer as vice president?  I‘m joined by Ed Turlington, former chairman of Edwards‘ campaign when he was running for president and a North Carolina attorney who worked at the same firm as Edwards in the early ‘90‘s and by Victor Schwartz, general counsel for the American Tort Reform Association.

I guess, Ed, let me start with you and ask you this question.  Do running mates have to like each other to win? 

ED TURLINGTON, FMR. CHAIR, EDWARDS FOR PRESIDENT:  Well, these two men do like each other.  They worked together as senators on many matters in the Senate and then they just went through this experience, as competitors, but by the end, had additional respect for each other.  This is a great team and we think they‘re going to win in November. 

TACOPINA:  Victor, from your research of the cases that John Edwards was involved in, which will clearly become an element of the campaign and the debates to come, did bad law or bad medical practice come out of John Edwards‘ cases? 

VICTOR SCHWARTZ, AMERICAN TORT REFORM ASSOC.:  No bad law or no bad practice, but he took as the judge said the high-ticket items.  People who were hurt in supermarkets, people who had minor injuries didn‘t get through the gate of the Edwards firm at all.  It was these multimillion-dollar lawsuits, and it qualified him to be president of the Trial Lawyers Association.  He was one of the best trial lawyers in America and he took cases, which were high-ticket items, and he did very well.  But not for people who had minor but very serious injuries. 

TACOPINA:  But Ed, I mean there‘s nothing wrong with that, right?  I mean if you‘re a high caliber attorney, you‘re supposed to deal or you can be choosey about the cases you take and you should take the more complex.  I mean it‘s certainly a much tougher litigation when you‘re arguing, you know, a doctor‘s malpractice called cerebral palsy as opposed to I slipped on a banana in you know the shopping market in aisle three.  I mean...

(CROSSTALK)

TACOPINA:  ... it‘s a much more complex case.  He should be handling those.

(CROSSTALK)

TURLINGTON:  Let‘s look at the record...

SCHWARTZ:  That‘s a good point, but under—no case under $300,000 would they take. 

TACOPINA:  Well, but that—I don‘t think that condemns him.  I don‘t think that ethically condemns him.  I mean it...

(CROSSTALK)

TACOPINA:  ... could simply be that his firm handled high and complex cases.  Their firm...

UNIDENTIFIED MALE:  Can I answer this question...

(CROSSTALK)

TACOPINA:  Go ahead...

(CROSSTALK)

TACOPINA:  Ed...

(CROSSTALK)

TACOPINA:  ... let me hear what you have to say Ed.  I want to hear this from Ed because Ed worked with...

UNIDENTIFIED MALE:  Right.

TACOPINA:  ... John Edwards.  I want to hear what he has to say.

TURLINGTON:  Yes, I was a member of the same law firm with Senator Edwards in Raleigh for a number of years and I actually did a different type of work than him, but I saw the dedication he brought to that work.  I saw over a multiyear period he honed his skills to become very successful, he attracted cases that were more severe with people in more need of help. 

That‘s the way our court system works.  It should also be noted that with John‘s knowledge of the court system, he has proposed reforms in the medical malpractice area to address the difficulties some doctors have of getting insurance in certain states.  For example, he has specific proposals that he proposed in his campaign to limit frivolous lawsuits and also to encourage medical boards to discipline doctors who are repeat offenders. 

SCHWARTZ:  Hey, wait a minute.  John Edwards has opposed every civil justice reform in the United States Senate, including one right now that‘s on the floor that would give people with these coupon settlements the right to have these settlements reviewed by a judge.  He‘s opposed medical liability reform.  He has opposed lawsuit abuse acts.  There is not one act that he supported and prominent Democrats like Senator Schumer, Senator Dodd supported some of these measures.  He has had the trial lawyer agenda in the Senate and that‘s why trial lawyers support him.  My God, if I still did plaintiff‘s work, I would be getting my wallet out to support him.  That‘s not a public policy view for our whole country and you know that. 

TACOPINA:  And also, Victor, I think you know, that‘s a little bit opposed to what the Democratic Party once thought as the people‘s party seems to stand for.  I mean they‘re against the big money guys.  I mean this is someone who is a multimillion dollar trial lawyer, not someone who I think really relates to the people‘s party, if you will.  But let me ask you this, Ed.  Maybe you could answer this question. 

According to “The New York Times”, Edwards has underbid other lawyers for clients.  He‘s, in other words, picked through dozens of experts to find the one to back his position as opposed to legislation that would help all brain damaged kids as proposed to the ones who win big malpractice awards.  Is that fair?  Is that typical of John Edwards? 

TURLINGTON:  Well, first of all what you just said, I reject the charge that John Edwards is against all legal reforms.  He has been against some of the reforms that your other guest has talked about because they cut back on the access of many individuals to court, and who among us would not want the access to our day in court if we are injured in either a medical malpractice situation or in personal injury.  In terms of what you are saying, I think your question was directed at the use of experts.  Obviously, Edwards reached the point he could take cases he thought had the most merit and then he could seek experts who would support his case.  That‘s what you do as a lawyer. 

(CROSSTALK)

TACOPINA:  Well, let me ask you this though.  I mean, Victor, in all fairness to Senator Edwards, a lot of his critics that I‘m reading in all these articles from “The Times” and these different magazines, are people who lost—literally lost to him in court.  I mean is this just sour grapes or...

SCHWARTZ:  Well...

TACOPINA:  ... is this legitimate? 

SCHWARTZ:  ... that—people who lost to him in court complains, we ought to forget that. 

TACOPINA:  Fine.

SCHWARTZ:  I‘m talking about a bill that‘s before the Senate that would give people not cut their rights, but tell them what class actions are all about.  Put it in plain English.  Have a judge review coupon settlements.  The senator is opposed to it.  A bill that would block lawsuits against McDonald‘s, the senator is opposed to it.  A bill that would penalties on lawyers who bring claims that are false, that are fake...

(CROSSTALK)

SCHWARTZ:  ... the senator won‘t support the federal bill.  Come on.  Let‘s deal with reality.  Maybe as vice president he will rise above the plaintiff lawyer interest and if he does, I‘d be the first to commend him for it, to rise above that plaintiff lawyer orientation when you‘re making public policy for the entire country. 

TACOPINA:  Ed Turlington and Victor Schwartz, thanks for coming on the program. 

Coming up, he was the vice president‘s doctor and he was addicted to painkillers at the same time, but the board that investigates doctors didn‘t even know.  Whose right is more important, a doctor‘s right to privacy or a patient‘s right to know? 

And later, why some of you think the man once known as juror number five is getting too much attention. 

And send us your e-mails to abramsreport@msnbc.com.  Dan reads all of them and responds to some of them at the end of the show.  I‘m going to give it a try myself tonight in just a few minutes.

(COMMERCIAL BREAK)

               

TACOPINA:  From four heart attacks and bypass surgery to gout and high cholesterol, Vice President Dick Cheney has needed many doctors over the years.  The question we want to ask tonight—was the District of Colombia‘s Medical Society wrong when it failed to tell (UNINTELLIGIBLE) that one of Cheney‘s physicians, internist Gary Malakoff was being treated for an alleged addiction to prescription drugs. 

Now, George Washington Medical Center knew of Malakoff‘s problem as early as 1999 and the vice president reportedly knew about it possibly in either ‘99 or 2000, but because of confidentiality rules, Dr. Malakoff was allowed to continue his practice even though according to the “New York Magazine,” divorce records allege he spent over $46,000 on a narcotic nasal spray available over the Internet.

For now, Dr. Malakoff is off the Cheney medical team and on leave from his position as chairman of Internal Medicine at George Washington Medical Center, but did his other patients know their distinguished physician might have had a drug problem and should they have known? 

I‘m joined by Dr. Peter Cohen, chairman of the Medical Society of the District of Colombia, which oversaw Dr. Malakoff‘s treatment for drugs.  He‘s  also an adjunct professor at law at George Washington University.  And I‘m also joined by Art Caplan, a medical ethicist at the University of Pennsylvania.  Art is a regular columnist on MSNBC.com and also served on New York State‘s Medical Licensing Board between 1987 and 1989. 

And I guess the first question I want to direct to you Peter is should doctors be allowed to practice while they‘re being treated for an addiction? 

DR. PETER COHEN, CHAIR, D.C. MEDICAL SOCIETY:  Let me add to that. 

But before I do so, I noticed that you began the program by saying that Dr.  Malakoff is known to the board, the Physician Health Committee of the Medical Society.  That is your statement.  Everybody to whom I‘ve spoken, I have said I will be glad to talk about the rationale and goals of the Physician Health Committee, but I don‘t discuss individual patients, so as far as Dr. Malakoff is concerned, he may be known to us, he may not be...

TACOPINA:  Well...

COHEN:  ... but I won‘t comment on him specifically.  I‘ll be glad to answer questions in general. 

TACOPINA:  I appreciate that.  I didn‘t ask you to comment on him specifically, but you‘re certainly not denying that he was known.  You‘re not commenting on it. 

COHEN:  I‘m making no comment and... 

TACOPINA:  Fine.  So let me ask you a general question...

(CROSSTALK)

TACOPINA:  Forget about Dr. Malakoff for a second.  We know what we know about him and what happened, happened.

COHEN:  Should a...

TACOPINA:  Should a doctor be allowed to practice while they‘re being treated for an addiction?  I mean if I‘m a patient and I go to a doctor, should that doctor being treated for some sort of self-addiction be allowed to treat me? 

COHEN:  We believe addiction is a disease like any other disease.  It is a disease that requires treatment.  We don‘t want to break confidentiality in patients because we don‘t think a patient has any more of a right to know about a physician‘s addiction than he does about a physician‘s broken arm or epilepsy.  Let me make two statements. 

One, if we think that a physician who is being monitored by the Physician Health Committee and we don‘t treat physicians, we monitor them, if we think that a physician being monitored by us constitutes an imminent threat to patient welfare, this physician is reported promptly, so we don‘t keep everything confidential. 

The second point that I think is important is that in the past over 20 years, we have monitored several hundred physicians.  None of them has ever caused a patient harm during the period they were being monitored by us, so that...

TACOPINA:  Well...

COHEN:  ... it might be nice for patients to know the intimate details of a physician‘s disease status, no patient has ever been harmed by a treating physician who is being monitored...

TACOPINA:  OK.

COHEN:  ... by our committee. 

TACOPINA:  Is Dr. Malakoff now on leave from his position as chairman of Internal Medicine at George Washington Medical Center? 

COHEN:  That is what I read in the paper.

TACOPINA:  That‘s what you read in the paper.  OK.  So that part is still confidential.  You can‘t discuss that, whether he was or was not? 

COHEN:  Well, I assume he was because that‘s what I read in the paper...

TACOPINA:  OK.

COHEN:  ... but the fact that Dr. Malakoff is the vice president‘s physician is something that gains the public interest.  We take care of a lot of physicians who just...

TACOPINA:  Let me bring—Art let me bring you into this.  Dr.  Malakoff was in a program where he was regularly treated or regularly drug tested, yet still allegedly able to procure and use prescription drugs.  Are doctors especially adept at evading these tests? 

ART CAPLAN, MEDICAL ETHICIST:  Well they are and we know they are.  There are higher rates.  The AMA has talked about this frequently, of doctors because they‘re around narcotic substances, they‘re around addictive substances in fields like anesthesiology or around certain substances that you can abuse.  I am not against trying to keep doctors with addiction problems in medicine.  I do strongly, however, oppose keeping them in practice until they get out of their addiction, particularly when they‘re in a position to prescribe narcotic and other addictive drugs.  It seems to me there you‘re in a situation where you‘re saying look, we know you‘re an alcoholic, but if you still want to run a bar, go ahead. 

TACOPINA:  Right.  And you know, Art, I mean Vice President Cheney was reportedly told that Dr. Malakoff had a problem, but what about his other patients?  What about Joe Smith?  You know, should any patient have a right to be informed if a physician has a drug problem or a health problem for that matter? 

CAPLAN:  I think that patients when they go to doctors should get honest answers to questions, and this came up years ago when we were talking about things like HIV infection, Hepatitis C infection.  It comes up here too.  If I ask my doctor, do you have these problems, I should expect the same honesty that he or she should expect from me.  So I think you do have a right to know.

TACOPINA:  OK.  And Peter...

(CROSSTALK)

TACOPINA:  ... I guess...

(CROSSTALK)

TACOPINA:  ... you‘d agree with that, right? 

(CROSSTALK)

TACOPINA:  I mean if I‘m a patient I‘d want to know if my doctor is addicted...

COHEN:  I think...

TACOPINA:  ... to some sort of painkiller.

COHEN:  You‘re talking about a doctor-patient relationship, does a patient have a right to know from his own physician...

TACOPINA:  If his judgment may be skewed, yes. 

COHEN:  That‘s a question to ask a physician.  But does a patient have the right to know from the Physician Health Committee.  Let me simply answer this in a number of ways.  One, Art, you said that a patient should not be—a physician should not be treating patients as long as he is suffering from addiction.  Specialists in addiction medicine believe that once...

TACOPINA:  OK.

COHEN:  ... you are suffering from addiction, you always remain an addict.  But if you say...

CAPLAN:  But an active addict...

(CROSSTALK)

CAPLAN:  ... an active addict is the problem. 

COHEN:  An active addict, I would agree to that. 

TACOPINA:  Peter...

(CROSSTALK)

TACOPINA:  Peter listen, I‘m going to have to cut you off there just because we‘re so short on time.  And it‘s a very interesting topic, but we do have to go and you‘re going to go with my thanks, both to Dr. Peter Cohen and Art Caplan.  Thank you very much. 

UNIDENTIFIED MALE:  My pleasure.

TACOPINA:  Coming up, your e-mails.  How many of you have the Peterson trial on your minds? 

(COMMERCIAL BREAK)

TACOPINA:  Coming up, is the prosecution losing the Scott Peterson case?  Some of you certainly think so.  I‘ll respond to your e-mails when we come back.

(COMMERCIAL BREAK)

TACOPINA:  I‘ve had my say.  Now it is time for “Your Rebuttal”.  Dan usually goes through your e-mails at the end of the show so I thought I should also do so tonight with. 

The Scott Peterson case has many of you writing in.  Some argue he‘s innocent while others think he is absolutely guilty but may get off because of poor lawyering in this case.

Kristen Murray from Illinois writes, “What a shame that Laci and Conner have the same inept prosecution team that is quite reminiscent of the Nicole Brown and Ron Goldman trial.  If I were Laci‘s family, I would have a long talk with the prosecution team and tell them to get their acts together or find someone capable of this trial.  If they don‘t, they‘re going to see him walk.”

Now, I see your point, Kristen, but although Laci‘s family lost their daughter and grandson, this case is not brought against Scott Peterson by them.  In criminal cases, it‘s the county that brings the case to trial.  Laci‘s family does not get to choose their own lawyers or what evidence should be brought in and they certainly don‘t get to advise the prosecution.  Your frustration is valid.  And if Scott is in fact guilty, almost no one would want to see him walk. 

I want to thank you all for writing in.  These e-mails are always read.

Coming up next, “HARDBALL” with Chris Matthews and a special edition of “HARDBALL” at 9:00 p.m. Eastern Time.  Chris‘ guest, former Democratic presidential candidate Howard Dean.

And on a final note, it‘s my son Christopher‘s birthday.  He is 9 years old tonight.  He let me do the show, so happy birthday buddy.  I‘ll see you in a little bit.

END

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