updated 7/9/2004 10:52:02 AM ET 2004-07-09T14:52:02

Guests:  Joshua Berman, Joel Androphy, Ron Fischetti, Charles Gasparino, Roger Boyce, Clyde Platt, Gerald Boyle, Joe Tacopina, Lisa Bloom, Trent Copeland

RIKKI KLIEMAN, GUEST HOST:  Coming up, Ken Lay, the poster child for corporate greed, pleads not guilty to 11 counts stemming from Enron‘s collapse. 

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE:  I firmly reject any notion that I engaged in any wrongful or criminal activity. 

KLIEMAN (voice-over):  What do the charges mean?  How much time could he serve?  And what do Enron employees who lost their life savings think now? 

Plus, the prosecution in the Scott Peterson case tries to show how he could have transported his dead wife‘s body. 

And celebrity defendants right to a fair trial versus freedom of the press.  Are the judges in the Michael Jackson and Kobe Bryant cases going too far to protect their case? 

The program about justice starts right now. 

(END VIDEOTAPE)

KLIEMAN:  Hello everyone.  I‘m Rikki Klieman sitting in for Dan today. 

First up on the docket, the indictment in Houston of former Enron CEO Kenneth Lay.  And before the charges were read, the traditional perp walk for an executive that federal prosecutors say earned more than $319 million in salaries, shares and bonuses from Enron between 1998 and 2001.  And while he was pocketing that fortune, prosecutors say Ken Lay protege Jeffrey Skilling and accountant Richard Causey also conspired to deceive shareholders, regulators, Enron employees and the public about the company‘s horrendous financial numbers. 

Lay‘s criminal indictment lists 11 counts, including one each of conspiracy and bank fraud, two counts of wire fraud, three counts of making false statements to banks and four counts of securities fraud.  He is also facing civil charges from a Securities and Exchange Commission investigation.  But Lay says he‘s innocent. 

(BEGIN VIDEO CLIP)

KENNETH LAY, INDICTED FMR. ENRON CEO:  As CEO of the company, I accept responsibility for Enron‘s collapse, as I have said before.  However, that does not mean I knew everything that happened at Enron, and I firmly reject any notion that I engaged in any wrongful or criminal activity. 

(END VIDEO CLIP)

KLIEMAN:  Lay insists former Enron finance chief Andrew Fastow was the real culprit.  Fastow plead guilty to two conspiracy counts in January.  Andrew Fastow is expected to testify for the prosecution when Ken Lay does go on trial, which may be why Lay‘s attorney, Michael Ramsey, called Fastow a self-admitted liar and thief. 

Ramsey also hinted that political considerations may be driving this trial.  Ken Lay and Enron have long been major political and financial supporters of the Bush family.  So, are politics a major factor in this case?  Will the financial crimes alleged be too complicated for a jury to handle?  Is Andrew Fastow the sole villain of this story?  And can Ken Lay get a fair trial in Houston where so many suffered after Enron, despite Lay‘s cheerleading, collapsed. 

Well let‘s ask our panel—“Newsweek” senior writer Charles Gasparino, who‘s been covering this story since the beginning, former federal prosecutor Josh Berman, Houston defense attorney Joel Androphy, and white-collar defense attorney Ron Fischetti. 

I think I should go to the prosecution first, so Josh, this one is to you.  Is the indictment solid or is it too complex?

JOSHUA BERMAN, FMR. FEDERAL PROSECUTOR:  Well the indictment is solid.  What the indictment has done is both told the story in simple terms, explaining Mr. Lay stole what he knew and when he knew about it, and at the same time, it‘s complicated.  It spells out all of the details that a jury is going to need to know. 

KLIEMAN:  Indeed need to know.  The question also may be need to know in Houston, which brings me to Joel Androphy.  Joel, Houston is a place where so many have lost so much.  Is it possible for him to get a fair trial there? 

JOEL ANDROPHY, DEFENSE ATTORNEY:  Unlikely.  You‘re going to get some jurors obviously that are pro-Lay and some now that are against Lay.  But it‘s going to be very—there‘s going to be a lot of hidden agendas for people sitting on that jury.  That‘s why Lay did the smart thing now and come out fighting, coming out telling people his side of the story, arguing his case right now to the jury, hoping to sway those very people that are on the fence. 

He‘s never going to convince the ones that don‘t like him.  Hopefully they can weed them out in jury selection.  He wants to hit the people that are on the fence and he has tremendous amount of supporters.  For people that live in Houston, the people he had speaking for him today on some of the local TV stations, some of the ministers, some of the community leaders, those are very popular people.  Obviously, this is well orchestrated by Ken Lay. 

KLIEMAN:  Well-orchestrated indeed.  Ron Fischetti, I have got to tell you this, and you know me well.  I could not have taught Ken Lay any better than he did today, if you‘re teaching a client how he should go in front of the media.  He was confident.  He was out there.  He absolutely said he was innocent.  And he was going forward and going fast.  Is that what you would have had him do, Ron?

RON FISCHETTI, DEFENSE ATTORNEY:  Absolutely.  You know Rikki we have talked about this a lot.  I am a proponent of the fact that when a client is indicted, especially a person in a high-profile case like Ken Lay, rather than just have your attorney say we‘ve met the charges, we‘ve pled not guilty, we want a speedy trial, have your client come out, speak to the media, say I‘m not guilty.  I want a trial.  I want to prove my innocence, which is just what Ken Lay did. 

Let‘s not forget, he knew he was going to be indicted.  This is an investigation that‘s gone on for years.  Arthur Andersen went under because of this.  More than 30 people have been indicted, so he knew it was coming.  He was prepared for it and I think he handled it extremely well. 

KLIEMAN:  Extremely well indeed.  Charles Gasparino, I have got to tell you, I‘m watching Ken Lay in my office today and I‘m just saying, this is one of the best pieces of propaganda, be it true or false.  You followed the story from the beginning.  How did he affect you? 

CHARLES GASPARINO, “NEWSWEEK”:  How did Ken Lay affect me?  Listen, I cover these guys, I try to keep an open mind.  And the reason why I try to keep an open mind, because I know white-collar crime is notoriously difficult to prove.  And I‘ll tell you, he looked good on—he looked good in that press conference.  I mean that was an extraordinary performance.  Some of the facts in this case are very damaging to him. 

Although, like others have said, there‘s a lot of gray area there.  And—but he basically has two strikes against him I believe.  Number one, he‘s going to be tried with Skilling and Causey and that‘s bad because the case against them is very good.  And also he‘s going to be tried in Houston and a lot of people got screwed by Enron in Houston. 

KLIEMAN:  Let me go back to Joel Androphy.  And Joel, one of the things that I thought was interesting today is Ken Lay‘s being very, very strong about saying he wanted to go to trial, he wanted to go to trial in September.  His lawyer going forward saying, we want to be severed.  We want to go right now.  Is he going to get a chance to go first? 

ANDROPHY:  I think so.  Normally everyone knows on the panel that judges don‘t like to server out cases.  They want to do this once for all and not duplicate the resources.  But that was a very clever move by saying we want a speedy trial and Skilling wants to wait a year.  He sends a message to the judge, we want to go first, we want to be severed.  I don‘t think this case—the government did file these cases together, I don‘t believe, so they would all be tried together.

I think the governor knew they would be severed.  What the government wanted in this case was Judge Lake.  Judge Lake is a very fair judge.  But the government wanted him because if they reindicted—if they indicted Lay and he went into so-called “we own the courthouse,” where you know you can pick any judge automatically, you would not want certain judges in our building because they would be considered more pro defense.  So I don‘t think this was about being tried with Skilling and Causey.  It was more about selecting your judge.  It was more about forum shopping. 

KLIEMAN:  Very, very smart lawyering indeed.  Ok, Charles, Josh, Joel, Ron, everybody stick around. 

And when we come back, what about the Enron employees who lost their life savings in the collapse?  We‘re going to talk with one who lost $2 million and to the lawyer heading a class action lawsuit against Enron‘s top executives. 

And the judge in Martha Stewart‘s case decides Stewart will not get a new trial. 

Later, dramatic testimony in the Scott Peterson trial.  The prosecution trying to show how Peterson could have moved his wife‘s body, but does its theory hold up? 

Your e-mails, send them to abramsreport@msnbc.com.  I‘m going to respond to some of them at the end of today‘s show.

(COMMERCIAL BREAK)

KLIEMAN:  Coming up, former CEO Ken Lay pleads not guilty to charges surrounding Enron‘s collapse, but what do employees who lost their life savings think?  We‘ll ask one of them. 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

LAY:  And I do think that the next several months, next few years are going to be great for Enron and great for Enron‘s employees. 

(END VIDEO CLIP)

KLIEMAN:  That was Enron chairman and CEO Ken Lay in August 2001, just months before the company‘s collapse.  When Enron went bankrupt that December, thousands of employees lost not only their jobs but their retirement savings as well.  Enron‘s pension plan gave employees lots of opportunities to invest in company stock.  But for 10 days in October and November of 2001, as the company imploded, Enron imposed a blackout period, barring employees from changing the investments in their 401 (k) plans.  And the company‘s collapse touched more than just those working at Enron.  Thousands of teachers, firefighters and other public employees whose pensions were invested in the company lost at least $1 billion. 

They‘re now all coming toward in a class action lawsuit and it names Ken Lay, Jeffrey Skilling, and other top Enron executives and managers.  They are seeking to regain some, if anything, of what they lost.  Roger Boyce worked for Enron for some 30 years when he retired in March 2000.  His stock was valued around $2 million and after Enron collapsed almost two years later, the value of Roger‘s investment fell to under $15,000. 

Roger joins me now, along with Clyde Platt, who is the attorney representing the more than 20,000 people who participated in savings plans, wiped out when Enron went down.  I want to begin with you, Roger, because your story really cuts me to the bone.  Tell us about how long you were at Enron and what you had and what you lost. 

ROGER BOYCE, FORMER ENRON EMPLOYEE:  I think you covered it pretty well.  I worked for Enron for about 30 years and I invested everything I could into the Enron stock, even before that time, Northern Natural Gas before the merger.  So for that 30-year period I invested monthly as well as company contributions for the entire period of time, which accumulated at the maximum point in excess of $2 million. 

KLIEMAN:  And when it went down to $15,000, you were virtually wiped out.

BOYCE:  As far as the company stocks (UNINTELLIGIBLE) that‘s true. 

KLIEMAN:  Now, what are you doing now? 

BOYCE:  I‘m actually working for a pool and spa company.  It‘s called Aqua Pool & Spa.  It‘s in a suburb of Minneapolis and I started there doing some consulting work and now I‘m working there full time. 

KLIEMAN:  I want to ask you about today.  It was a momentous day I think for lots and lots of people.  What did you think about the indictment of Ken Lay and if you heard Mr. Lay today, what did you think about what he said? 

BOYCE:  I was very encouraged with the indictment of Ken Lay and I did hear a portion, at least, of his talk after.  Actually I was very encouraged by his comments that he‘s willing to take full responsibility as the CEO for what happened in the collapse of Enron.  That part, I think, was very positive. 

He also indicated, of course, as you probably know, Andrew Fastow, he named as the primary person, the underlying cause of the collapse.  One thing I‘d like to comment in regard to that is that Ken Lay between 1997 and 2000 served on a key management committee, which oversaw more of the day-to-day-type operations and as part of that committee, they were totally aware, at least should have been aware that Andrew Fastow himself was in a very questionable position with conflict of interest.  And they did not do anything about it, and in my opinion, should have done something about it. 

As well as they were certainly involved in knowing the accounting practices that were being performed with limited partnerships, et cetera.  And that company—that committee oversaw that whole operation on a day-to-day basis.  So you serve on a committee for any period of time, they should have seen that as a red flag that something was happening.  So, that really concerns me. 

KLIEMAN:  Well you certainly make a powerful argument as a plaintiff in this case, so let‘s ask your lawyer.  Clyde Platt, I want to know how you got involved in this case.  It is really huge. 

CLYDE PLATT, ATTORNEY FOR CLASS ACTION SUIT AGAINST ENRON:  Well, we got involved initially when some folks in Portland called us, who are part of Enron.  As you know, Portland General Electric was taken over by Enron, and they had watched their savings plummet to nothing in the waning days of Enron.  And they were very concerned for two reasons. 

One, they wanted to do the right thing.  And the right thing to them meant not sitting still when people have used their confidence.  Not sitting still when you had people like Ken Lay at the top of a company claiming no responsibility for what had happened in those days.  And they were obviously also motivated to recover as much of their life savings as they could. 

These people were with a company that had been a utility company for a long time.  It was very conservative.  They could trust that their savings were well guarded and suddenly when they became part of Enron, they saw their fortunes both rise and then plummet to nothing in short order. 

KLIEMAN:  When you listen to a plaintiff who is as articulate as Roger Boyce, you have so many, many people that you‘re dealing with.  Do you have other stories that really, as I say, they cut me right to the core?  Do you have other stories of people who lost so much? 

PLATT:  Certainly.  I mean we have 17 representative plaintiffs here who are standing up as representatives for over 20,000 participants in these plans.  I have represented most of those 17 people at depositions within the last couple of years, and so I became aware of their stories intimately.  I remember visiting Wayne and Catherine Stevens, who were with PG&E at their family homestead, which had been in their family for approximately 100 years and sitting with them in front of a tee that Mr.  Stevens had played on as a child, as he was contemplating selling the homestead so that he would have enough to live on in his retirement.  There are people like Charlie Prestwood, another one of the plaintiffs, who went from thinking that he was secure to now basically living hand to mouth on very small social security payments.  So... 

KLIEMAN:  The stories, I know, must be reaching and I am sure that as time goes on we‘ll be talking with you many times, many times again and again.  So Roger Boyce and Clyde Platt, I really want to thank you for joining us.  And of course, we will have so much more on Ken Lay‘s indictment right after...

(CROSSTALK)

KLIEMAN:  ... this break.

UNIDENTIFIED MALE:  Thank you.

KLIEMAN:  And for full coverage, including an interactive timeline of Enron‘s rise and fall, log on to our Web site.  That‘s abramsreport.msnbc.com. 

Still ahead, Martha Stewart loses her bid for a new trial.  And the battle over secrecy in the Michael Jackson and Kobe Bryant cases, the judge is trying to keep details out of the press and away from the public.

(COMMERCIAL BREAK)

KLIEMAN:  In another case of corporate crime, Martha Stewart got some disappointing news today.  The judge in her case decided she won‘t be getting a new trial.  Attorneys for Stewart had argued that recent allegations that a government ink expert lied on the witness stand affected the outcome of the case.  Stewart was convicted of conspiracy, obstruction of justice, and making false statements back in March.  She is expected to be sentenced next week. 

So, it‘s the end of Martha Stewart‘s trial, but it‘s the beginning of Ken Lay‘s defense.  What does he have to say about that?

(BEGIN VIDEO CLIP)

LAY:  Failure does not equate to a crime.  Although my lawyers and I believe I should not have been indicted, now that I have been, I have instructed my legal team that I want a speedy trial and I hope it will begin by early September this year.

(END VIDEO CLIP)

KLIEMAN:  Let‘s bring our panel back in—“Newsweek‘s” senior writer Charles Gasparino, who‘s been covering these stories since the beginning, former federal prosecutor Josh Berman, Houston defense attorney Joel Androphy, and white-collar defense attorney Ron Fischetti. 

Josh, let me go back to you about this whole idea of Ken Lay coming forward so forcefully.  If you are the prosecutor and you see how well he is prepared right now, are you going to get to that speedy trial?  Are you ready to roll? 

BERMAN:  It‘s a great move by Ken Lay.  Usually the government benefits from the extra time when pretrial motions stretch on.  By getting to the trial right away, it puts the government to its test.  On the other hand, the government has been working this case up for two and a half years.  They‘ve walked up the chain.  They have 30 or so prosecutions to date.  They finally got Fastow to plead guilty and cooperate.  They are ready.  And they are ready regardless of whether or not Ken Lay testifies and gets to tell that story again to the jury.  So in this particular case, it‘s really going to come down to Fastow and to the documents that backed Fastow up. 

KLIEMAN:  Well let‘s think about also the words of Kenneth Lay.  And we can listen to Kenneth Lay saying something.  This was at an employee meeting right after Skilling resigned.  Let‘s hear what Kenneth Lay had to say. 

(BEGIN VIDEO CLIP)

LAY:  The company is doing extremely well.  The business model and the strategy are sound.  The opportunities are enormous.  We have to keep executing. 

(END VIDEO CLIP)

KLIEMAN:  Well, the company is doing really well.  Ron Fischetti, these are the kinds of words that come back to haunt a client, or is this just puffing?  Is this just morale boosting? 

FISCHETTI:  It‘s chilling.  The jury is going to see that.  The jury is going to hear that, and, of course, no defense lawyer wants his client to say that.  But he‘s doing the right thing by asking for an immediate trial.  Let‘s not forget that he‘s been joined in an indictment and the government has had two years to investigate this, so he has a right to a speedy trial. 

And I think the judge is going to be hard pressed not to give it to him and not give him this severance.  And there‘s no question in my mind that he‘s far better off going to trial alone than going to trial with two other defendants in his case.  The question is, is he going to be tried in Houston?  And I don‘t think he will.  I think a change of venue will be granted and he will be tried somewhere else. 

KLIEMAN:  Well you may well be right, but we‘ll see what time brings.  Of course, we have to deal with what the government really has.  It has his voice.  It has documents.  It has Fastow, as you say.  I want to give you another little phrase of Mr. Lay‘s.  This happens the day before Fastow was dismissed.  Let‘s take a look at what Mr. Lay said.

“I and Enron‘s board of directors continue to have the highest faith and confidence in Andy—meaning Fastow - and believe he is doing an outstanding job.”

Charles Gasparino, those are not good things for Kenneth Lay to have said, are they? 

GASPARINO:  No, not good things, but you know they‘re an opinion and you cannot be convicted of fraud based on an opinion, and that‘s exactly what his lawyer is going to say.  Listen, I can have all sorts of opinions about this company.  It‘s great.  It‘s—you know its earnings are going to go up.  But unless I say earnings are going to go up X percent and they are down X percent, I think that‘s when you get into the fraud area.  And he really didn‘t do that and I think that‘s going to be his defense. 

KLIEMAN:  You guys are terrific—I have to tell you.  So with that, I have to say Charles Gasparino, Josh Berman, Joel Androphy and Ron Fischetti, thanks so much. 

And coming up, prosecutors in the Scott Peterson case show how a pregnant woman about Laci Peterson‘s size could fit in Scott Peterson‘s tool chest and boat, but did they really convince a jury he could have put a dead body there? 

And it‘s a growing trend in celebrity trials, judges going to unprecedented lengths to keep documents secret, but are they also taking away the public‘s right to know? 

And your e-mails, send them to abramsreport@msnbc.com.  I‘ll read some of them at the end of the show.

(COMMERCIAL BREAK)

KLIEMAN:  Coming up—a controversial courtroom demonstration in the Scott Peterson trial, involving another pregnant woman and Scott‘s toolbox and his boat, but could the demonstration backfire?  The details, but first the headlines. 

(NEWS BREAK)

KLIEMAN:  Now to the Scott Peterson trial.  The court is in recess until next week, as lead defense attorney Mark Geragos attends a funeral today.  But the abbreviated week may have helped the prosecution, putting a witness on the stand yesterday that seemed to have bolstered their case.  The witness, Kim Fulbright, demonstrated to jurors how Scott Peterson could have easily hid his wife‘s body until he dumped it in the San Francisco Bay.  Fulbright is an employee of the District Attorney‘s Office and she walked the jury through a series of photographs of her taken when she was 38 weeks pregnant. 

In January prosecutors had Fulbright, then about the same size as Laci Peterson when she was reported missing, scrunch herself into Peterson‘s large toolbox in his pickup truck and then curl up between the seats in his fishing boat.  Peterson‘s defense team objected, calling the photos fabricated evidence.  But the judge denied that objection, saying that Fulbright‘s size was nearly identical to that of Laci Peterson, leaving it up for a jury to decide. 

How powerful are these demonstrations?  Well, how could you forget O.J. Simpson trying on that bloody glove?  It didn‘t fit and the jury did acquit.  And in 2001, Green Bay Packers tight end Mark Chmura was found not guilty of sexual assault.  His attorney, Gerald Boyle, demonstrated the alleged incident for the jurors, saying there was not enough space in the bathroom for the alleged assault to have taken space. 

Gerry Boyle joins us tonight, along with attorney and Court TV Anchor Lisa Bloom and criminal defense attorney Joe Tacopina.  Gerry Boyle, I‘m going to you first.  I made a special request for you because I will never forget that Mark Chmura demonstration.  If you could not have fit in that bathroom in order to have committed a sexual assault, Mark Chmura was at least twice your size.  How did you conceive of doing that demonstration? 

GERALD BOYLE, CRIMINAL DEFENSE ATTORNEY:  Well, I think, you know, Rikki, first of all, I just finished your book recently and it was great. 

KLIEMAN:  Thank you for sharing that. 

BOYLE:  But I think a jury—I think our job as lawyers are to help jurors make tough decisions.  And anything that a lawyer can do to help them make that decision should be tried, and I just opined that if they saw that bathroom and were told that how impossible - showing how impossible it was to have done all of the things that he was accused of in that short space without disrupting and knocking things over and making all—wrecking all kinds of havoc, that the jury is entitled to see that. 

So, I had the bathroom made to scale, with the walls obviously about a foot high rather than up to the ceiling, of course, and I think it made an appreciable difference in the case.  And I think it helped the jury and I know it helped us get an acquittal.  So, I think what they are doing in the Peterson case is appropriate.  I think they owe it to the jury to do that.

KLIEMAN:  Well Joe Tacopina, if you were the defense attorney in the Peterson case, you, like Mark Geragos, would have screamed bloody murder, no punt intended, that this should not just be allowed in the courtroom.  But Geragos lost.  What do you do once it comes in? 

JOE TACOPINA, CRIMINAL DEFENSE ATTORNEY:  Well first of all, you sharpen up your pencil for an appeal in the event that there‘s a conviction because, I got to tell you, Rikki, I mean I read this and read this twice to make sure I was getting the facts straight here.  I mean here—this is unlike Gerry‘s situation where the defense was doing a demonstration to prove a negative, to show it was impossible.  Here the prosecution, who has the burden of proof, is basically asking a jury to guess. 

There is no evidence whatever that Laci Peterson was placed in a toolbox and then put from the toolbox to the truck to the boat and then dumped out into the bay from that toolbox.  I mean there‘s zero evidence of that.  All that is, is rank speculation.  Now, it‘s a theory that the prosecution may have, and maybe they can sort of argue, although I‘m not even sure that would be permissible that particular theory, because again, there‘s no evidence to support it, Rikki. 

But here you have a situation where they get to do an in-court demonstration.  And you know as a trial lawyer, Gerry knows as a trial lawyer, there‘s nothing more powerful in the world than demonstrative evidence.  Jurors were like looking (UNINTELLIGIBLE) and writing notes in this case because they somehow that puts some meat to the bones.  And in a case like this, in a demonstration like that, I couldn‘t think of anything more prejudicial and, quite frankly, you know if I‘m Mark Geragos, I‘m looking that jury in the eye and saying, how pathetic is their case at this point?  When—if that‘s not a window into their case that they need to do this sort of guessing, whether or not this is how it happened, you know to convict and possibly kill my client, you know I would be outraged. 

KLIEMAN:  Well outraged perhaps, but Lisa Bloom, it got in and I think Joe‘s right.  It‘s powerful.  But how do you answer the claim that it really is conjecture and speculation?  We don‘t know what happened. 

LISA BLOOM, COURT TV:  Look, it‘s vivid but it‘s limited.  And the prosecution is putting forward a theory in this case.  Look, Joe says there is no evidence.  Well, there is evidence.  There is a hair of Laci Peterson‘s that was found in that boat.  Let‘s not forget that.  The bodies were found at the very place that Scott Peterson took that boat on Christmas Eve 2002, so there certainly are connections. 

You know I call this whole episode, take that juror number five.  Because we remember juror number five saying a few weeks ago when he was dismissed from the jury, there‘s no evidence, the prosecution hasn‘t showed us that a pregnant woman would fit in the boat.  Well this demonstration, which was done well before that back in January, shows that in fact a pregnant woman an inch taller and a few pounds heavier than Laci Peterson fits very well into that boat.  It‘s limited.  It doesn‘t necessarily prove that Scott Peterson did it like any other single piece of evidence, but put it together with the rest of the case, I think it adds to the prosecution‘s case, absolutely. 

KLIEMAN:  Well it‘s interesting because Mark Geragos is also a very good cross-examiner, so I want to call up what he said and this is the second full screen that we have because I think it is a great way to cross-examine.  Because Mark Geragos is saying to this witness, who goes, of course, with the District Attorney‘s Office after this demonstration is done. 

And he says to her, he says well, you didn‘t have any weights on you.  And she answered no.  You had to scrunch yourself up quite a bit to get into that boat, didn‘t you?  Answer:  Just my legs.

Geragos:  You really had to scrunch yourself up, didn‘t you?

Fulbright:  I had to bend my legs.

And it will of course continue from there.  Joe, that‘s all Geragos can do, right?  I mean she didn‘t have any weights on her.  She certainly wasn‘t moved in a still position.  She moved her own body. 

TACOPINA:  Right and that‘s exactly the point.  Look, you‘re not going to get—this woman has no idea what happened on December 24, so you‘re going to get her just to say the things that Mark brought out, that he will be able to later use as a jury argument simply that one, she didn‘t have weights on her, which adds not only weight but certainly inches to the you know atmosphere that she was in.  and more importantly, you‘re right.  She is alive.  She is doing this.  She‘s making these maneuvers.  I mean it‘s sort of hard to do it when you‘re a corpse.  And again, more importantly, you know we‘re just guessing at this point.  And if I‘m the defense attorney in this case, I‘d turn that on and say we are now guessing in a capital murder case. 

KLIEMAN:  Well, that‘s a good argument from the defense side.  So with that, Jerry, Lisa, Joe, stick around. 

Up next—celebrity defendants‘ right to a fair trial versus freedom of the press.  Are the judges in the Michael Jackson and Kobe Bryant cases going too far to protect their case?

(COMMERCIAL BREAK)

KLIEMAN:  Welcome back.  Two high-profile trials, two celebrity defendants, Michael Jackson and Kobe Bryant.  Every step of their case intensely followed.  But because of that media scrutiny, are the judges in each of these cases going too far, maybe even crossing that line and trying to maintain a defendant‘s right to a fair trial. 

Take the Michael Jackson case.  Judge Rodney Melville imposing unprecedented guidelines, sealing almost all documents, only releasing severely redacted portions of some of the search warrants in the case.  And it wasn‘t until yesterday for the first time portions of the grand jury testimony that led to Jackson‘s indictment were released inside a brief filed by Jackson‘s legal team.  That motion asked the judge to dismiss the charges against Jackson.  The judge previously refused to allow the motion to become public. 

And as we‘ve been reporting in the Kobe Bryant case, information about the sex life of the now 20-year-old woman who has accused the NBA star of rape was mistakenly sent to media outlets last month and it came from a court clerk.  That information contained in 206 pages of documents was from closed-door testimony in the case.  Now, it‘s a mistake Judge Terry Ruckriegel tried to fix that same day, saying that he heard any media outlet—and he‘d hold them in contempt of court if they broadcast any of this information, fearing that it was going to pollute the jury pool.  But are judges now living in a climate of fear, worried about their verdicts holding up in court? 

We know the trials are public, but when you have got so much secrecy, are we going back to something like the Spanish inquisition?  So, what is the right balance of rights for the defendant, the alleged victim and the public? 

Let‘s bring in our legal team.  Trent Copeland, his client roster includes actors Matt LeBlanc, Jean Claude Van Damme and Shannon Doherty.  And back with us Gerry Boyle, who represented NFL player Mark Chmura, as well as convicted serial killer Jeffrey Dahmer, attorney and Court TV Anchor Lisa Bloom and criminal defense attorney Joe Tacopina, representing two of the unnamed co-conspirators in the Michael Jackson case. 

Trent, I want to go to you, and it is, of course, Matt LeBlanc.  I live in Los Angeles.  I will be banned by not saying his name correctly.  You have seen these kind of high-profile clients.  Is it really fair to just keep everything under wraps?  Doesn‘t the public have a right to know what‘s going on in our courthouses? 

TRENT COPELAND, DEFENSE ATTORNEY:  I think they do, Rikki.  And I think the reality is that both judges in these high-profile cases have gone a little too far.  And remember, every lawyer has a different take on it.  I‘m sure Joe Tacopina might have a different take as a defense lawyer than I would.  Remember, Mark Geragos when he was involved in the Michael Jackson case, he wanted everything open. 

Now that Tom Mesereau has come aboard, he wants everything closed, at least until the following of this most recent 995 motion.  I think judges, Rikki, are very concerned about how they‘re going to select an impartial jury.  And I think they have gone overboard, particularly in these two cases in trying to assure that that process takes place, without, instead, giving more credence and more respect to the voir dire process.  That really is where the safeguard should take place.  And frankly, they‘re just not giving another credence to that. 

KLIEMAN:  Gerry Boyle, I tend to agree with Trent.  I‘m a firm believer in government being transparent.  I think government should be open and I think trials should be public.  And although I‘m concerned for the rights of a criminal defendant, I think that we are way, way beyond the pale with keeping everything under a cloud. 

BOYLE:  See I think, Rikki, the problem is that the press wants the information yesterday and the public wants it yesterday, but the problem is that the prosecutor, defense lawyer and judge want the case to be tried one time and one time only so they err very, very carefully on the side of caution.  And I think they are right because eventually everything comes out.  It‘s just not out every day and all day that‘s going to tend to make it an impossible job for a lawyer to be able to pick a jury.  So I think the less they know, the better, because it‘s only the 12 jurors that really should get all of the information anyway until a verdict is reached. 

KLIEMAN:  Well maybe so, but the reality is you wind up having leaks.  And Lisa Bloom, I want to bring you in for a particular part of this issue and that has to do with the alleged sexual activity of the accuser in the Kobe Bryant case.  That stands on different footing, yes? 

BLOOM:  It does.  But the judge should never have been having hearings into her sexual history to begin with.  That‘s the problem there.  The problem is not the press.  Look, you know the assumption is that secrecy is the only route to a fair trial when, in fact, it‘s just the opposite.  When accurate information is suppressed, then rumor and innuendo flourish.  Who wants to go into a trial when all the public has heard is wrong-headed information, information that could not be confirmed?  We have nothing to be ashamed of, having an open system as you said Rikki, a transparent system.  We should shine a light and we should never be ashamed of that. 

KLIEMAN:  Joe Tacopina, in this balance, this very delicate balance, if they didn‘t seal all of this information in the Bryant and in the Jackson cases, could either of these defendants get a fair trial? 

TACOPINA:  I honestly don‘t think so, Rikki.  I agree with what you‘re saying in principal and Trent makes a good point and so does Lisa and Gerry, but you know we‘re in a different era right now.  We‘re in an electronic media era par none.  I mean we‘ve never been—I mean you can pop a name on the Internet and four million things come up.  And the problem with the Jackson case in particular is that there‘s never been a case like this.  There are squadrons of news teams dedicated from all of the big networks, all of the cable companies, to just this case and they‘re looking for information on a daily basis. 

I will tell you that Judge Melville and his tight reins on this has done exactly what I think Gerry is hoping he‘s going to do, is make this a one-time trial.  And I‘m telling you he doesn‘t also want to spend five years picking a jury in this case because every juror is going to have heard something.  There are so many facts not known yet to the public in the Jackson case that are under seal that I think are terrific.  It‘s actually working and it‘s not like it‘s going to be a trial in secrecy. 

I mean let‘s not get carried away either.  There will be a public trial.  All of this will come out.  The judge is just basically trying to hold it until the jury is empanelled and they‘re not like going to be prejudiced and filtered by all of this stuff. 

KLIEMAN:  With the few seconds I have left, Trent Copeland, isn‘t the truth though that we don‘t want jurors who are from Mars.  We want jurors who are educated.  We want jurors who know something.  Can‘t they just cast their opinion aside?  You get the last word, Trent. 

COPELAND:  You know I think they have to, Rikki and I think we have to respect the judicial process.  And the jurors are going to honor the admonishments of the court to not read anything, any media reports while they are in the jury deliberation process and hearing the case.  And I really think you‘ve got to respect that process.  Anything short of that we really underestimate the intelligence of our jurors and I think that takes us in the wrong direction. 

KLIEMAN:  And I wish you could all continue but alas it‘s time.  Trent Copeland, Gerry Boyle, Lisa Bloom, Joe Tacopina, thanks so much. 

BLOOM:  Thank you.

KLIEMAN:  And coming up—can Kobe Bryant get a fair trial in Eagle, Colorado?  Your e-mails after the break.

(COMMERCIAL BREAK)

KLIEMAN:  Anyone who has seen a police show knows the suspect has the right to remain silent.  So why in 2004 are some police departments still trying to get around reading suspects their Miranda rights?  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

KLIEMAN:  Miranda warnings are so much a part of our culture that it is hard to remember when these safeguards didn‘t exist.  One of the most controversial decisions of the Warren Court era evolved into the most familiar language and practice because of television.  From “Kojak” to “Hill Street Blues” from “Law & Order” to “NYPD Blue”, every one understood that a police officer told the suspect, you have the right to remain silent, anything you say can be used against you and so on.

Law enforcement agencies found that they got confessions anyhow.  The warnings didn‘t seem to impede the overwhelming compulsion of so many to admit their guilt.  Well since the decision back in 1996, we‘ve had two or perhaps three generations of police officers who have been raised with this practice.  It‘s second nature.  The purpose of the warnings, to have an officer stop, breathe, recite, curbs possible police abuses and obviously protects a citizen‘s Fifth Amendment right to remain silent. 

So it seems pretty amazing that after all this time there could be police departments that actually train their officers on how to get around those Miranda warnings.  The idea of instituting a policy to circumvent the law by those who are charged with upholding the law is startling.  And yet, the United States Supreme Court narrowly struck down this practice in a 5-4 decision revealing the tension of the justices on confession issues. 

In Missouri v. Seibert, the court condemned a two-step process where officers would question a suspect.  Once he admits involvement, then they‘d Mirandize him, tell him his words could be used in court and get a second confession.  Come on.  Why not just learn to live with the simple practice?  Why spend all that energy creating a strategy to get around a rule?  The Missouri two-step won‘t be around anymore.  But if I were a betting woman, I‘d wager that these efforts are far from over and unfortunately, we will revisit this issue again in another form, another dance. 

I‘ve had my say.  Now it is time for “Your Rebuttal”.  On the stand in the Scott Peterson trial yesterday was a woman who works at the Stanislaus County District Attorney‘s Office.  She was pregnant around the same time as Laci Peterson and had a very similar body size to Laci‘s at the time that she was pregnant.  The prosecution used her body type to show how Scott may have managed to get Laci‘s body in and out of the small fishing boat. 

Brad Ritter in Lakeland, Florida.  “Enough about a boat experiment already.  No one would throw a body over the side of a small boat like Scott‘s.  Instead, one would put it on to the motor and dump it out the back to avoid capsizing.”  OK Brad, you bring up an interesting point.  Let‘s see if the prosecution picks up on it. 

And Joe Scholnick, I hope I‘m saying that correct, in Long Beach, California with another question about the Scott Peterson case.  “As I understand it, neither the medical examiner nor anyone else has been able to point to a specific cause of death of Laci Peterson.  Murder is generally defined as a unlawful killing that is both willful and premeditated.  If no finding of murder has been established by the medical examiner or by another state authority, what‘s the basis for the murder charge?”

Well we‘ve seen many murder cases that go forward all the way to conviction where the prosecution doesn‘t even have a body, let alone know the cause of death.  We‘ve had no reason to believe that Laci and Conner died as a result of suicide or accident.  The government has charged Scott Peterson with murder based upon a theory.  We‘ll see what they can ultimately prove. 

To the Kobe Bryant case and the hot issue of race.  Bryant‘s trial is in Eagle, Colorado.  It is a town of about 3,000 people in which 87 percent are white.  And Jeanne Meek whose daughter and granddaughters live in Eagle, Colorado doesn‘t think that Bryant can get a fair trial. 

“Bryant could lose this case not on the evidence, but solely because he‘s black.  Folks that actually live and work in Eagle do so because they choose to live among whites and ski.  They don‘t attend school or work with blacks.  They have no friends that are black.  My daughter feels the most that Bryant can hope for is a hung jury.”

Jeanne, I don‘t know the community of Eagle, Colorado, but I do have faith in the jury system.  I represented a black male accused of sexually assaulting a white woman in a small community in Massachusetts where he was acquitted.  If Kobe Bryant‘s defense attorneys believe there‘s racial prejudice in Eagle, they know the remedy, to move for a change of venue.  And we know that this defense team is not afraid to file another motion.

And finally I received plenty of e-mails welcoming me back to television and yesterday, I got a lot.  And here‘s one from Joy.

“Where in the world have you been Rikki?  I always watched you on Court TV and then you disappeared.  What happened to you?  Please come back to TV.”

Thanks Joy and to all of you who wrote those similar e-mails.  I‘ll give you the story.  I left my full time anchor position at Court TV back in New York last summer.  I joined my husband Bill Bratton.  He became the chief of police in Los Angeles. 

I do still appear on Court TV from time to time.  I work as an NBC legal analyst for the “Today” show, as well as CNBC and here at MSNBC, so you can catch me from time to time on air.  Also I finished my book “Fairy Tales Can Come True”, which became an “L.A. Times” bestseller.  It‘s coming out in paperback later this month.  So I‘m happy.  I‘m in love.  I‘m fulfilled and I‘m thrilled that you asked. 

So, keep all of those e-mails coming.  Send them to the abramsreport@msnbc.com.  Dan goes through them, reads some on the air. 

Coming up next, “HARDBALL” with Chris Matthews.  Thanks for watching. 

I‘m Rikki Klieman.  Have a great night. 

END

Copy: Content and programming copyright 2004 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2004 FDCH e-Media, Inc.  (f/k/a Federal Document Clearing House Inc., eMediaMillWorks, Inc.), ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and FDCH e-Media, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

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