updated 7/20/2004 9:39:08 AM ET 2004-07-20T13:39:08

Guest:  Dean Johnson, Bill Portanova, Gloria Allred, Karen Steinhauser, Lucy Dalglish, Herb Hoelteh

DAN ABRAMS, HOST:  Coming up, another ABRAMS REPORT exclusive in the Scott Peterson case.  This one relates to his girlfriend Amber Frey.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  We have the list of exactly what Amber turned over to police to prove she was having an affair with Scott Peterson.  In addition to photos and his Christmas gift, she even turned over a strip of condoms.  We have the details. 

Kobe Bryant and a controversial court ruling.  Details of the accuser‘s rape exam mistakenly released to the press.  Now the Colorado Supreme Court weighs in on what the media can and can‘t do with the information.

Martha Stewart, ready for prison?  Doesn‘t sound like it from recent interviews.  We‘ll talk with a man who is preparing Martha for the big house. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, another ABRAMS REPORT exclusive in the Scott Peterson case.  This on day 25 of the trial.  We have got the list of items Amber Frey turned over to the Modesto police on December 30, 2002, the day she contacted authorities and just six days after Laci Peterson was reported missing. 

It was clearly an effort to convince the authorities that she was having an affair with Scott Peterson.  Here are some of the items.  A gift that Peterson apparently gave her.  A mail-order item called a star theater.  It‘s described as an astronomical device for looking at stars.  Frey also turned over three wine or champagne bottle corks, each of them dated with Peterson and Frey‘s names on them, names on them. 

The invitation for a Christmas party the two attended on December 14, 2002.  Peterson‘s tuxedo rental receipt for that night‘s party.  Over a dozen photos of the pair at that party.  Remember, Peterson was invited to two Christmas parties that night.  One, with his wife and the other with Frey.  He chose to go with Frey.  Her Christmas gift to Peterson with the words for my love written on the wrapping paper.  And get this, maybe the most bizarre thing she turned over, a strip of several unused wrapped condoms that Frey said would have Peterson‘s fingerprints on them. 

Still expecting Amber Frey to take the stand in the next few weeks.  Prosecution saying they believe she was part of Peterson‘s motive for the murder.  The question, how damaging are these items?  How will they come into the play in the case?  Are they going to help the prosecutor‘s case? 

Let‘s bring in our legal team.  With us tonight Amber Frey‘s attorney, Gloria Allred.  In the courtroom, former San Mateo County prosecutor Dean Johnson - that‘s not him.  And former California prosecutor and current defense attorney Bill Portanova.  That‘s him.

All right, Dean Johnson, let me start go you.  So we‘ve got this list of items as to what Amber turned over.  You know this tells you that she was really making an effort to convince the authorities that she and Scott were having an affair. 

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Well, yes.  It sounds like she was really making the effort, but the other thing that strikes me is the defense theme struck in their opening statements that this was not a serious relationship.  Geragos has tried to paint this as essentially a one-nightstand, two or three dates.  It sounds like either Scott Peterson was very serious or more likely, given the other testimony we‘ve heard about him, he moves awfully fast with the women that he tries to form relationships with and that he gets very serious or pretends...

ABRAMS:  Yes.

JOHNSON:  ... to get very serious, very fast. 

ABRAMS:  That‘s a good point.  Bill Portanova, you know I think that‘s going to be a potential problem for the defense team.  You know they‘ve got these wine and champagne bottle corks dated and have Amber and Scott‘s names on them?  I mean that‘s like a married couple does that. 

BILL PORTANOVA, CRIMINAL DEFENSE ATTORNEY:  Well, I‘m not sure that‘s true.  I think what you have is maybe an affair, maybe a long-term affair.  But there is really nothing here that has any markings of permanence to it.  He is a philanderer.  This is evidence of philandering and if anything, it does make Amber Frey look a little bit of a—little bit like she has been used a little bit by a guy.  That is philandering, but it still adds nothing to the murder case.  Nothing at all. 

ABRAMS:  What about Dean‘s point, though, that basically Mark Geragos has been arguing again and again, this was nothing.  He didn‘t care about - - you know, they met three times or whatever the number is and yet here are these, you know the gift that was sent to Amber from Scott, this thing to look at the stars with...

PORTANOVA:  Well...

ABRAMS:  ... and then she has got you know her gift to him, it says for my love.  I mean you know?  I don‘t know. 

PORTANOVA:  Well, the exchange of gifts is not that big a deal around the holiday season.  I don‘t think that this really says...

ABRAMS:  I don‘t know.

PORTANOVA:  ... that there‘s an intense love affair.  All I see is a brief fling with a few mementos...

(CROSSTALK)

PORTANOVA:  ... kept by somebody who was very sentimental. 

ABRAMS:  The reason I saved Gloria...

JOHNSON:  Bill...

ABRAMS:  ... let me just get in Gloria here.  The reason I saved Gloria for last here is because I know she is going to be limited in what she can say about our exclusive.  But Gloria, do you want to respond to what either one of them have said? 

GLORIA ALLRED, AMBER FREY‘S ATTORNEY:  Yes.  You know, don‘t think there is any question that this wasn‘t just a few dates, that this was a relationship that Scott Peterson was having with Amber.  And for anybody to try to suggest that this is just a gift around holiday time and that maybe signing the corks, if in fact that occurred, doesn‘t mean anything, well, I don‘t know if you have ever been in love, a lot of people viewing have and this is the kind of thing that people do when they are having a relationship and perhaps when it‘s more than just a few dates. 

ABRAMS:  What is Gloria...

ALLRED:  And by the way, the generalization that this is what he does with all women, I don‘t know how many women there are, but we don‘t have information that he did this, this particular kind of gift-giving or you know signing of corks with anyone else. 

ABRAMS:  Yes.  Gloria...

(CROSSTALK)

ABRAMS:  ... can you enlighten on what a star theater astronomical device is that apparently he gave to Amber? 

ALLRED:  I think I‘ll allow Amber to do that on the witness stand if she‘s asked about it.  And my guess is that she will be asked about any gifts that Scott Peterson either gave to her or that she gave to him or was prepared to give to him. 

ABRAMS:  Dean, go ahead. 

JOHNSON:  Yes, the point of all this is that the picture that the prosecution is painting very successfully is that Scott Peterson is a total piece of work.  He has almost a separate personality from what you see in the so-called perfect husband.  He has got the Viagra in the car when he is fleeing to Mexico.  He talks about sexual positions with Shawn Sibley when he‘s known her for five minutes.  He has got the roll of condoms with Amber Frey and at the same time, he leaves his eight and a half month pregnant wife alone at a Christmas party to go off to a party with his mistress.  That‘s the picture that this jury is painting.  I guarantee you from the jury‘s reaction they don‘t like it. 

PORTANOVA:  Well, the bottom line is all that is really is back-door character evidence.  It doesn‘t add up to a single shred of evidence that the guy committed the murder. 

ABRAMS:  But doesn‘t it belie some of what the defense has been arguing, Bill.  I mean again, the defense keeps sort of knocking home this idea that Amber Frey was nothing to Scott Peterson.  Why would he kill his wife for this woman he didn‘t even care about?  And then you know we hear about, again—I mean, again, I don‘t know exactly what a star theater...

PORTANOVA:  Well...

ABRAMS:  ... astronomical device is but it sounds like some sort of binoculars and the fact that the two of them—I love the fact...

(CROSSTALK)

ABRAMS:  ... that the corks were dated with their names on them. 

PORTANOVA:  Frankly...

ABRAMS:  Go ahead.

PORTANOVA:  Frankly, the star device sounds like something that you would use to help you identify constellations if you were outside looking at the stars.

(LAUGHTER)

PORTANOVA:  You take that out of the mix and you‘ve got three champagne corks and a roll of condoms.  I don‘t think we‘re talking about deep—I don‘t think we‘ve proved deep and abiding love here...

ALLRED:  Well, obviously that‘s not all there is to the relationship.  And in addition, we should remember that the prosecutors are arguing that the relationship with Amber Frey supports a motive for murder and that‘s why all of this may be relevant. 

(CROSSTALK)

PORTANOVA:  Well, this is why they‘re going to lose because it‘s a house of cards.  They don‘t even have cards. 

ABRAMS:  All right.  Well coming up, more on our exclusive about what Amber Frey turned over to the police to prove she was having an affair with Peterson. 

Plus today‘s testimony, a detective admits on the stand that no blood evidence was found in the Peterson home and in Scott‘s car, although another witness said that there was some blood in the car.  We‘ll figure out what was going on.  We‘ll get an update from the courtroom. 

And a controversial ruling in the Kobe Bryant, will the media be allowed to report more details of the accuser‘s sexual history? 

Martha Stewart sentenced to 5 months of prison, but is she really ready to go?  We‘ll talk with her prison consultant—you heard me right, prison consultant.

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, more on our exclusive.  The evidence that Amber Frey turned over to police to prove she was having an affair with Scott Peterson.

(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:  Yes, they did.  And the question is, how romantic was it or was it just sex?  We are continuing to talk about our exclusive here which is the items that Amber Frey turned over to the police to essentially convince them, look, I‘m telling you the truth, I was having an affair with this guy, Scott Peterson.  Let me go through it again.  A gift from Peterson to Amber Frey, again, it was called a star theater astronomical device for looking at the stars.  Three wine champagne bottle corks dated with their names on them.

The Christmas party invitation for 12/14/02.  Of course, that‘s the party that Scott Peterson chose to go with Amber to instead of going with his wife.  His tuxedo rental receipt, photos of them, a lot of them.  They had like 21 at the 12/14/02 party.  Her Christmas gift to Peterson with the words for my love on the wrapping paper, and a strip of several unused wrapped condoms that Amber says—said will have Scott‘s fingerprints on them.

Bill Portanova, any way the defense could say you know how would she have known that the condoms would have his fingerprints on them or something like that or are they just going to try to minimize this stuff?

PORTANOVA:  I think they are going to minimize it.  Because if you look at the evidence itself, you have a tuxedo and a gift and a party invitation and a wine bottle cork, all of which could have could have come from one date and a couple of other wine corks may have been one or maybe two other dates.  It doesn‘t prove a long-term relationship here. 

What you have is evidence of a romantic relationship, which I don‘t think is at issue at all.  And if he was very romantic with her on the first date or the third date or the fourth day, so what?  We haven‘t taken one step closer to proving that he committed this murder—not one step. 

ABRAMS:  You know Dean, they had to convince—it seems she had to really convince the authorities that she was legit and that she was for real.  I mean it seems like she had to sort of hand over everything to say look, I‘m giving you the real goods here. 

JOHNSON:  Yes.  I mean, remember, we don‘t know exactly what went on between Amber Frey and these police officers.  But do remember, there are even statements and sworn affidavits where some of these police officers were looking her as a potential suspect.  So when she comes to them obviously she wants to say look, I‘m coming clean, here is everything I‘ve got, I‘m your witness and we don‘t know exactly what discussions went on back and forth.  We may hear something about that.  We know they eventually felt that she was eliminated as a suspect, that she was being straightforward and of course she is their star witness now. 

ABRAMS:  And Gloria, that‘s what I want to ask you about.  It seems like the defense is now almost subtly pointing the finger at Amber Frey as having some sort of involvement in this.  Let me just read you from what Mark Geragos said in his opening statement. 

Investigator Jacobson suspected Amber Frey and he told the judge that I think Amber Frey is involved in this case and now we have got that report from Jacobson.  It says we believe these telephone conversations, if intercepted will show Scott Peterson‘s further involvement and possibly the involvement of Amber Frey in Laci Peterson‘s disappearance.  I mean Gloria, as her attorney, does it sound to you like they are beginning to suggest that she might have done this instead of Scott Peterson? 

ALLRED:  Well, this must be viewed as simply desperate efforts by Mark Geragos if that‘s where he has to sink when he knows that the police chief came out very early on and said Amber was eliminated as a suspect.  And when he knows that the first news conference that she did was at the police station, with the police and that they have felt complete confidence in her.  Then if he is trying to stretch to suggest not only first that a satanic cult may be responsible, then maybe robbers did it, then maybe Amber did it, I mean, this is pathetic if that‘s where he‘s going and I just think he loses all credibility. 

And by the way, it wasn‘t just a few dates.  I guess the—your guess is the defense attorney has perhaps not been aware that there are a long series of taped telephone conversations between Scott and Laci after—excuse me, between Scott and Amber after Laci disappeared and I think we‘re going to hear some of that in court and we‘re going to then be able to judge what the relationship was between Scott and Amber and it wasn‘t just a relationship about a few dates. 

ABRAMS:  All right, well...

(CROSSTALK)

ABRAMS:  ... go ahead, Bill. 

PORTANOVA:  It doesn‘t matter whether it was one date, 10 dates, it really doesn‘t matter.  And frankly, as Amber‘s attorney, I‘m surprised that you would be arguing how close the relationship was since the closer the relationship, the more likely that the police would suspect that there was some involvement by her.  I personally, based on the evidence that I have seen, think that it would be a terrible idea for the defense to try to paint Amber Frey as having anything to do with this case.  She strikes me and I hope—I think she strikes everybody as an innocent young lady who was taken advantage of by a philanderer.  That doesn‘t make her guilty...

ALLRED:  He‘s not just a philanderer...

PORTANOVA:  ... or not guilty...

JOHNSON:  Yes, but remember...

ABRAMS:  Dean...

ALLRED:  She‘s a victim...

JOHNSON:  Remember here Dan...

ABRAMS:  Let me let Dean in.  Go ahead Dean.

JOHNSON:  Mark Geragos is pointing so many fingers at so many people that he‘s rapidly running out of fingers.  I mean we‘ve even seen this afternoon a re-examination of Detective Coyle and the sex offenders and parolees.  There is some mysterious guy that we‘re referring to as offender number 42 who wasn‘t eliminated from the Modesto police investigation.  He is the latest red herring.

We‘ve got the mysterious stalker of Scott Peterson who never met Scott Peterson, the devil cults.  You can anticipate that if there is a finger to be pointed at anybody, Amber Frey or anybody else, that Geragos is going to point it.  And of course that‘s one of the great weaknesses with...

ABRAMS:  Yes.

JOHNSON:  ... this defense is that fingers are pointing in every direction and most of these stories are stories that can be burst like a balloon with a pin by one relevant fact on the part of the prosecution. 

(CROSSTALK)

ALLRED:  And Amber is two things.  She‘s a victim of Scott Peterson‘s deception and she is a heroine in this case because at great risk to herself she assisted law enforcement and that was very important in their criminal investigation. 

ABRAMS:  All right.

PORTANOVA:  Well I agree...

ABRAMS:  Very quickly Bill, 10 seconds.

PORTANOVA:  ... I agree about Amber Frey and she should be rewarded but she provides no evidence of his guilt. 

ABRAMS:  All right, Gloria Allred, Dean Johnson and Bill Portanova, thanks a lot.

ALLRED:  Thank...

JOHNSON:  Thanks Dan.

ABRAMS:  Coming up, a live report from the courthouse, detectives testifying today that no blood evidence was found in the Peterson home.  Remember, this is really the place to come to on this case.

And a controversial court ruling bars the media from reporting about details in the sexual past of the accuser in the Kobe Bryant case.  Details are coming up. 

(COMMERCIAL BREAK)

ABRAMS:  All right.  We‘re back.  We have been busy talking about our exclusive—even gotten a chance to talk about what happened today in court.  Day 25 in the Scott Peterson case.  The fourth day of testimony from Modesto detective Henry Dodge Hendee. 

Get the latest now from the courthouse, MSNBC‘s Jennifer London.  Jennifer, explain to me.  Up to this point we‘ve been hearing about how there was blood found in Scott Peterson‘s truck, there was blood found in the house.  It seems to be Scott Peterson‘s, so it‘s not so incriminating.  Now the detective is suggesting that there wasn‘t blood found? 

JENNIFER LONDON, MSNBC CORRESPONDENT:  Dan, that‘s a good question.  Today Mark Geragos focusing on the lack of scientific evidence found during all of these police searches.  Now, the blood found inside Scott Peterson‘s truck, Scott Peterson had said that he cut himself on Christmas Eve while reaching into the pocket inside the drive‘s door.  That is where a small spot of blood of found. 

Hendee saying that all the other stains that were seen inside and outside of Scott Peterson‘s truck turned out not to be blood.  And what about the toolbox?  Now the prosecution has implied that Scott Peterson stuffed Laci‘s body inside this very large toolbox to get her body from the house to the warehouse.  So was there any evidence inside this toolbox?  Mark Geragos asking Detective Hendee, so the stain from the toolbox turned out not to be blood? 

Hendee:  Correct. 

Mark Geragos:  No blood as far as you know in the entire toolbox?

Hendee:  Correct. 

Mark Geragos:  Other than the suspect‘s hair, no tissue, and no body fluids, referring again to the toolbox?  Hendee saying that is correct. 

And also today Mark Geragos once again focusing on this plastic pitcher that was found inside the warehouse.  Hendee once again admitting that this picture was not used to make the homemade anchor.

Hendee also talking about the hair on the pliers.  He testified that when he saw the hair on the pliers, he was pretty sure there was only one hair.  However, when he and Detective Allen Brocchini unsealed the evidence envelope a couple of weeks later, they found two hairs. 

Now Hendee said that they did not test this hair or hairs against a hairbrush of Laci Peterson‘s.  And the second aspect of the hair that Geragos focused on today, Dan, was the timing of when the hair in the pliers was discovered versus the timing of when this homemade anchor was discovered.  Not clear where Mark Geragos was going with this and the timing issue was not resolved in court today. 

Dan, we did hear from a second witness today, a woman who partially videotaped some of the searching of the Peterson home and also Detective Ray Coyle has been recalled today by the defense to be cross-examined about the sex offender parolee list, as you heard Dean Johnson mention.

ABRAMS:  All right, Jennifer London, thanks very much.  Appreciate it.

Coming up, it sounds like extremely damaging and embarrassing information mistakenly sent out to the media about the alleged victim in the Kobe Bryant case and it‘s about her sexual history.  We‘ll tell you why it‘s not being reported. 

And Martha Stewart sounds like she could be in denial that she has been sentenced to serve time.  We‘ll talk with her prison consultant—that‘s right, prison consultant, about how she might adjust to life in the big house. 

Your e-mails abramsreport@msnbc.com.  I‘ll read a lot of e-mails about Martha, by the way, which I will read at the end of the show.  Please include your name and where you‘re writing from.

(COMMERCIAL BREAK)

ABRAMS:  A controversial court ruling in the Kobe Bryant case. 

Details of the alleged victim‘s rape exam mistakenly released to the press.  Now the Colorado Supreme Court weighs in on what the media can and can‘t do with the information, first the headlines. 

(NEWS BREAK)

ABRAMS:  We‘re back.  In the Kobe Bryant case attorneys arguing behind closed doors about evidence the defense team wants the jurors to see at trial. 

NBC‘s Mark Mullen is live in Eagle, Colorado with more on today‘s hearings.  Hey Mark.

MARK MULLEN, NBC NEWS CORRESPONDENT:  Hey to you Dan.  So many interesting aspects of this case including the possibility of jurors asking questions of the witnesses once this trial gets underway.  What‘s that all about?  Well, there is a new Colorado law, which would allow jurors in criminal cases, civil cases they have already been allowed to do, but would ask—basically allow jurors in criminal cases to ask questions of the witnesses.  Everybody was looking at the Kobe Bryant case because obviously this would be the most high-profile test case of this new law.  Well not according to the lawyers on both sides if they have their way. 

Out of all the clashing that we have seen on both sides from the attorneys, they both are in complete agreement with this.  They don‘t want any jurors to be asking questions in this case.  There‘s sort of the feeling that things are far too sensitive.  This is too important a case.  Let them test it someplace else.

Both sides agreeing they do not want jurors involved in this case as far as asking questions.  Another issue both agreed on—neither want TV cameras in the courtroom.  There was an interesting presentation, Dan, from Court TV, which theatrically would be providing full coverage if TV cameras were allowed in this case.  And they said sort of given the climate, they would implement a brand new system never tested before. 

And basically what it would be is there would be not a five-minute delay or an eight-second delay or a 15-minute delay, a full one-hour delay with as many as four different editors along the way to make sure that the identity of the accuser was never revealed, her name was never revealed and that could be bleeped out and that there would be none of these sort of indirect shots showing somebody that shouldn‘t be seen such as what happened back in the O.J. Simpson trial.  It‘s both a statement of the sensitivity of this case and also one of the whole TV climate, especially following the entire Janet Jackson Super Bowl incident as well. 

Back to you. 

ABRAMS:  All right, Mark Mullen, thanks very much.  I remember when I was at Court TV having to go in front of judges trying to convince them.  After O.J., got harder even though, well, that‘s for another day. 

Another development in the case—sounds like it could have been explosive information mistakenly sent out to the media about the alleged victim‘s past.  Last month, a reporter working with the court, a court reporter or clerk accidentally sent transcripts from closed-door hearings to several media outlets hearings where sensitive details about the alleged victim was discussed, about her sexual past, even about a rape exam. 

The judge in the case, Terry Ruckriegel, immediately sent out a note threatening that anyone who reported the information would be held in contempt of court.  Now, legally, it‘s pretty tough for a judge to decide what the media can and cannot report.  It‘s called a prior restraint when someone tries to prevent the press from reporting something before it‘s even published or on the air, essentially preventing the media from reporting on something.

Now, the Supreme Court, the U.S. Supreme Court has again and again prevented judges, attorney‘s general, even U.S. president from doing this in almost every case.  They have ruled that prior restraints are unconstitutional.  But in this case, the Colorado Supreme Court ruled that the judge essentially had no other choice.

Quote—“Reporting publicly the contents of the in camera, meaning behind closed door transcripts, would cause great and certain harm to the state‘s interest in providing the rape shield hearing in this case including the victim‘s privacy and safety interest, encouraging victims to report sexual assault and prosecuting and deterring sexual assault and the district court‘s order properly narrowed is the only means available to protect this interest.”

OK, that‘s what the court said, but did they get right?  I don‘t think so.  It doesn‘t mean the media necessarily should report the information, but the U.S. Supreme Court‘s rulings have been pretty clear on this issue. 

Joining me to debate, Lucy Dalglish.  She‘s executive director for the Reporters Committee for Freedom of the Press and former Colorado state prosecutor Karen Steinhauser, who is also a visiting assistant law professor at the University of Denver.

All right, Karen, let me start with you.  I mean look...

KAREN STEINHAUSER, FMR. COLORADO STATE PROSECUTOR:  OK.

ABRAMS:  ... I understand why the court wants to do this.  They want to try and prevent certain information from getting out there that could be problematic.  The problem is you use their reasoning and you really could make an argument that nothing in rape cases that‘s not introduced into evidence should ever be reported by the media and yet that‘s not the law. 

STEINHAUSER:  I don‘t think that‘s what the court is saying at all.  I think the court is looking at the fact that this was a statute that specifically said this evidence will be taken behind closed doors.  It will not be taken in public, no media will be present and the media didn‘t have a problem with that.  This was accidentally sent to the media and the court balanced the interests, the First Amendment interests of the media with the compelling interest in not having this type of very embarrassing testimony made public that was never intended to be made public in the first place. 

ABRAMS:  (UNINTELLIGIBLE)

STEINHAUSER:  So I think the court was right on. 

ABRAMS:  Lucy look, that‘s a position I think many of my viewers will sympathize with.  They will say...

LUCY DALGLISH, REPORTERS CMTE. FOR FREEDOM OF THE PRESS:  I‘m sure it will.

ABRAMS:  ... they will say why can‘t the judge prevent the media—and a lot of people don‘t like the media—why can‘t the judge prevent the media from reporting these ugly details of her life when it was supposed to be behind closed doors? 

DALGLISH:  Well because as you pointed out, this was called a prior restraint and the court has been very protective of the media‘s right to make decisions about what will be published and what will not be published.  And they have been very protective over the years and in fact the only times I‘m even aware of where a prior restraint has ever been upheld, it had to do with a defendant‘s Sixth Amendment right to a fair trial.  This whole idea of privacy coming in, the court in the majority opinion made it very clear we recognize that this has never been even contemplated by the Supreme Court in a privacy—under a privacy context and I think this is an absolutely remarkable decision.

ABRAMS:  Yes.  And let me read from another opinion, which related to prior restraint.  It was called the Nebraska Press Association opinion.  This is U.S. Supreme Court language—and I know all of you are saying look, the defendant‘s right to a fair trial is more important.  Well here‘s what the U.S. Supreme Court said.

Recognition of any judicial authority to impose prior restraints on the basis of harm to the Sixth Amendment rights, meaning a fair trial, of particular defendants, especially since that harm must remain speculative.  You don‘t know exactly what...

(CROSSTALK)

ABRAMS:  ... the harm is going to be, will thus inevitably interject judges at all levels into censorship roles that are simply inappropriate and impermissible under the First Amendment.

Karen, what about that?

STEINHAUSER:  I think you‘re talking about two different things.  And I agree that the court has said when we‘re talking about potential pretrial publicity, other things that First Amendment rights are paramount.  But if you look at other court decisions, the court has recognized that when we‘re talking about people who come forward to complain that they have been sexually assaulted, there are more privacy interests at stake. 

And the court went on to look at the history of the rape shield laws in talking about the fact of victims who don‘t report because of fear of publicity, because of fear of the court process and details about their past being made public when it shouldn‘t be.  I think the court‘s ruling really narrowed the decision and said you know the judge is not going to be able to order the media to delete or to destroy all of their transcripts, but...

ABRAMS:  Yes.

STEINHAUSER:  ... they need to wait and see if the court decides that there is evidence that is relevant and material that will be admissible...

ABRAMS:  Lucy...

STEINHAUSER:  ... report that.

ABRAMS:  ... not all prior restraints are—I mean most of them are unconstitutional.  Some of them can be.  In this case the court is saying look, there was nothing else that they could do to...

DALGLISH:  That‘s not true.

ABRAMS:  ... prevent this from getting out. Your response.

DALGLISH:  That‘s just not true.  And what is particularly ironic about this case is that the court is issuing a prior restraint on information, truthful information, most of which according to the minority opinion, the dissenting opinion has already been in the public domain that was lawfully obtained by the media. 

(CROSSTALK)

DALGLISH:  It‘s remarkable.

ABRAMS:  And let‘s be clear, Lucy.  You‘re not saying the media should report this...

DALGLISH:  Oh heaven‘s no...

ABRAMS:  Right.  You‘re just saying...

DALGLISH:  I think...

ABRAMS:  You‘re just talking as a legal matter, right? 

DALGLISH:  As a legal matter. 

ABRAMS:  Right.

DALGLISH:  I mean as the court said—as the dissenting opinion said in this case, you know the state of Colorado had a duty to this woman to protect her and the state—the court system blew it and you can‘t make the media pay because the state court system blew their obligation...

ABRAMS:  All right.

DALGLISH:  ... to protect her. 

ABRAMS:  Lucy Dalglish and Karen Steinhauser, thanks very much. 

Appreciate it. 

DALGLISH:  You‘re welcome.

STEINHAUSER:  You‘re welcome.

ABRAMS:  Coming up, Martha Stewart ready for prison?  Sure doesn‘t sound like it from recent interviews.  We‘ll talk with a man who is preparing Martha for the big house.

And why it‘s a shame that armies of lawyers are already geared up for the 2004 election.  It‘s my “Closing Argument” coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

MARTHA STEWART, DEFENDANT:  And I‘ll be back.  I will be back.  Whatever I have to do in the next few months, I hope the months go by quickly.  I‘m used to all kind of hard work, as you know, and I‘m not afraid.  I‘m not afraid whatsoever. 

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ABRAMS:  I‘ll be back.  Martha Stewart on the courthouse steps on Friday.  Even though the sentence has been imposed, the idea of Martha Stewart in a prison jumpsuit is still kind of hard to imagine.  And from a recent interview, Stewart may be in denial.  Her sentence has been delayed until the appeals process goes forward.  But does she really know what to expect if and when she eventually heads off to prison?  She seemed unafraid when she spoke with Barbara Walters about it on “20/20” on Friday. 

(BEGIN VIDEO CLIP)

(CROSSTALK)

STEWART:  I‘m a really good camper.  I sleep on the ground. 

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ABRAMS:  When Walters asked her what she really knows about prison, Stewart didn‘t seem to know exactly what she might be in for.  Walters asked her have you ever visited a prison?  Stewart said no I haven‘t.  I‘ve seen them in movies.

Walters:  Do you have any idea what it‘s like?

Stewart:  No, not really.

Walters:  Well, you know some of the things, bad food, no privacy, strip searches.

Stewart:  Oh, I don‘t think at a minimum-security prison there‘ll be strip searches. 

Actually there are strip searches even at minimum-security prisons.  And Martha Stewart seems eager to continue controlling her company as much as she can, now that she had to step down as CEO, but she may not know that she can‘t have anything to do with her business while in prison.  She can‘t even mention the name of her company when she talks on the phone from prison.

My next guest has been and will be advising Martha Stewart if her appeals process fails and she must serve the actual time.  Herb Hoelter is the sentencing consultant who has been working with Martha Stewart since her conviction.  He has also worked with other high-profile executives like Michael Milken and former Sotheby‘s chairman Alvin Taubman.  Thanks a lot for coming on the program. 

Thanks a lot for coming on the program.  Appreciate it.

HERB HOELTER, SENTENCING CONSULTANT:  You‘re welcome, Dan. 

ABRAMS:  All right, so first of all, is Martha Stewart in denial? 

HOELTER:  I don‘t know if she is in denial.  We certainly didn‘t have the prison conversation prior to sentencing and if and when the appeals are denied, we will certainly need to have that conversation.  But that‘s just not a topic that we approached before the sentencing hearing. 

ABRAMS:  Why not?  I mean were you confident that she was going to be freed pending appeal? 

HOELTER:  Well, I think so.  The government didn‘t object to that.  And our work had begun on her case actually following the verdict because we get hired to prepare her for the sentencing process, the probation process and developing alternatives and preparing the documents to file for sentencing.  The prison consultation in our cases invariably comes if and when the defendant has to go to prison.  We work hard to keep them out. 

ABRAMS:  Yes.

HOELTER:  But if they do have to go, that‘s when we have that conversation. 

ABRAMS:  Let‘s assume for a moment that she is going to go to prison and I think most people believe that‘s likely because the appeals will likely fail.  I‘m not saying they‘re frivolous, but in all likelihood, they‘ll lose the appeals.  What would you tell her?  I mean if you were to get you know the first paragraph, you would tell her, would be what? 

HOELTER:  Well I would tell her to be prepared to lose control of her life because that‘s the psychological aspect of preparing a defendant to go to prison.  To going from being in total control of everything around you to having no control over anything around you.  The second thing I would make sure she clearly understood was that she has no ability to conduct business.  If they catch her talking about her company or looking at balance sheets or talking about product lines, she will be thrown into solitary confinement and we will have to work doubly hard to get her out of there. 

ABRAMS:  Now to be clear, assuming she is going to serve time, as of right now you will be the person having that conversation with her? 

HOELTER:  Well, we have been involved in the case up to now.  I don‘t know why you know it would change at all and yes, I think we would be having that conversation.

ABRAMS:  What are you going to tell her about how to deal with other inmates? 

HOELTER:  I would tell her to you know fall into the woodwork.  Don‘t be asked for any—don‘t ask for any special treatment.  Other inmates will ask to be able to do her chores for her, to make her bed, to do her laundry.  I would tell her to, you know to do her own work and to just you know be herself.  Martha is a very good people-person and I think the inmates will have a high degree of respect for her for going to trial and trying to do the best she can to fight her conviction. 

ABRAMS:  So if she were your every-day white collar criminal—whatever that exactly means, I don‘t know—but you understand what I‘m saying...

HOELTER:  Sure.

ABRAMS:  ... if she was not Martha Stewart, if she were Margaret Stewart, how do you think prison—a five-month prison term in the exact same prison would be different for Margaret Stewart than for Martha Stewart?

HOELTER:  I think the first few days would be different.  Because Martha certainly will be looked at as a different type of defendant, a high-profile defendant but after that everybody is treated the same.  They wear the same khakis.  They work in the same shoes.  They do the same jobs.  They go to bed at the same time.  She will fall very well into the wallpaper there and I think she will do fine in prison, if and when she has to go and again, I hope she never has to go. 

ABRAMS:  Do you think that her attitude about it will change if she finds out, when she finds out—I guess she found out from Barbara Walters that you know there are strip searches and that you know you don‘t have the sort of privacy, you can‘t talk about your company.  Do you think that that‘s going to change her attitude about going to prison? 

HOELTER:  Well, I think it needs to.  You know the hardest defendants that we have are the ones who don‘t accept what is happening to them.  You have to accept it.  You have to make the most of your time.  Do your job, read, write, exercise and get out as quickly as possible. 

ABRAMS:  I was one of the people saying you know she doesn‘t deserve to be criticized for what she was saying on the courthouse steps.  You know she was talking about being back at her company, you know good for her.  You know she‘s going to serve her time and once she serves her time, she should go on with her life and you know I‘m not one of these people who is going to criticize her for what she said on the courthouse steps. 

Herb Hoelter, thanks a lot for coming on the program.  Appreciate it.

HOELTER:  Thank you, Dan.  I appreciate it.

ABRAMS:  Coming up, many of you writing in with your opinions about the Martha Stewart sentence and the press conference she held after court.  I‘ll read some of your e-mails after the break.

And the lawyering of the 2004 election.  Republican and Democratic lawyers already descending on districts across the country to find any irregularities.  I say it‘s a disease.  It‘s my “Closing Argument”.

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ABRAMS:  Coming up, many of you coming to Martha Stewart‘s defense after Friday‘s sentencing.  Your e-mails are next.

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ABRAMS:  My “Closing Argument”—why it is so disheartening to read about the newfound lawyering of politics.  Both parties preparing virtual armadas of attorneys to cover and uncover every voting district in the country.  Like flocks of buzzards, they are beginning to descend on what used to feel like cocoons of sanctity, the polling locations.  Some lawyers arriving months before the election in the hope they can find some sign of irregularity.  Both parties claiming we‘re just trying to promote valid access and avoid disenfranchising eligible voters.  Yes, right. 

Both sides will also be trying to nullify any votes that go against them.  Everyone supports the idea of making every vote count and if that‘s all the lawyers were there to do, I think we‘d all welcome their arrival.  But don‘t be fooled.  These attorneys are political warriors.  The legacy of the 2000 election battle is that it‘s not just about politics.  That election exposed problems with voting systems around the country and like a predator hunting its prey, these legal hounds are looking for any scent of blood, any weakness to challenge.

No stone will go unturned.  It‘s really not either party‘s fault per se.  Both are doing it.  Until voting becomes more uniform, there will be problems for the lawyers to expose.  But it is still a shame that we have come to this.  A sense that the election returns will have asterisks with small print that says something like these numbers reflect only the pre-litigation returns.  This time we can‘t blame the lawyers though.  They‘re just a symptom of the disease.  But some diseases are still difficult to live with. 

Now I‘ve had my say.  It‘s time for “Your Rebuttal”.  I‘m going to try and speak without stuttering.  Lots of letters about Martha Stewart.  I said she got the lightest sentence possible on Friday, five months in prison, five months house arrest at the home of her choice and she doesn‘t even have to start serving the sentence until the appeal process is over, which could take years.

But I also said I thought it was the right sentence.  Many of you e-mailed me on both sides.  Kacee Conklin from Nashville, Tennessee, “I have no problem with her sentence being used to set an example.  Perhaps others in her position will think twice and realize that just because they have a bunch of money they‘re not above the law or the rules somehow don‘t apply to them.”

Preston writes, “A proper sentence would have been more like five years and served at hard labor too.  So cry me a river because Martha frets about being confined at some minimum-security club fed for five months, assuming her sentence isn‘t overturned or that she ever even serves a day of time.  And even if she does serve time, she‘ll still return to more material wealth than most people could ever dream about.”

You know Preston, I know many would like to put her in prison just because she is wealthy, but I‘m not going to be one of them. 

In Tampa, Florida, Larry Hires.  “Whether her appeals fail or succeed, years of uncertainty seem to be a worse fate than five months in a prison in Danbury and five months in home detention.  The uncertainty of the appeals process is a prison of the mind, in which she‘s already begun to serve.”

Well, said, Larry.  I think it might be better for her to begin her sentence and drop the appeal.  She‘ll almost certainly lose.

Now remember, after her sentencing, Martha made a brief statement outside the courthouse.  I described it as defiant but that I didn‘t think it was as bad as many have said.  She has every right to say I will be back. 

Edward Rella from Milton, Vermont.  “I was a supporter of Martha.  I even wrote the judge, but she blew it with me when she spoke outside.  I do not support her any longer.”

I also said at some point after her appeals are over, it would be nice to hear her simply say I‘m sorry.  I lied. 

Anne Humphrey writes, “Martha‘s speech outside of the courtroom was far from defiant.  Her words were those of a woman who has a great deal of confidence and composure.  Why should she apologize when she has sense enough to know that her case is now moving into the appeals stage?  The reality remains that long after your nightly program and name have sunk into the graveyard of TV land, Martha Stewart will remain known and admired by many and continuing to bring home the bacon.”

Maybe so.  Apparently not for her TV show, at least for now.  But I think the evidence is so overwhelming that she lied that at some point it would be nice to hear her accept responsibility, but thank you so much for your confidence in the future of this program. 

Joel Robbins, “I‘m a little bemused by your request for an apology from Martha.  Just who exactly does Martha owe this apology?  It seems lately that the American public feels entitled to some sort of inclusion in the judicial process when it deals with celebrities, as if they were somehow damaged by their crimes.”

Well Joel, first of all, it was the United States v. Martha Stewart.  The citizens are the prosecution.  Taxpayers had to foot the Bill.  Never would have happened if she had just accepted a deal early on.  Then of course there are her employees and shareholders who have lost jobs or lots of money.  And then there are her supporters who believe she was telling the truth until the evidence came out.  Does that answer your question? 

Finally, from Philadelphia, Megan Devlin.  “I‘ve recently begun to watch your show with some regularity and I wanted to tell you, you are an absolutely cool guy.”

Thanks Megan.  Your e-mails abramsreport—one word -- @msnbc.com.  We go through them on the air.  You know a bunch of you have written in, telling me what a star projection theater is.  By the way, remember, that was one of the items that Scott gave to Amber Frey on our exclusive report.  Thank you for all of you who sent me the links to define these little, small personal planetariums.  I will never forget it. 

Coming up next, “HARDBALL” with Chris Matthews.  Ed Gillespie, RNC chairman is on the program.

Thanks for watching.  See you tomorrow. 

END   

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