updated 7/21/2004 9:19:23 AM ET 2004-07-21T13:19:23

Guest: Dean Johnson, Mercedes Colwin, Bill Majeski, Jonathan Turley, Norm Early, Jeralyn Merritt, Donna Lieberman, Anne Bremner  ABRAMS REPORT first in the Scott Peterson case.  New details about an affair Peterson allegedly had with another woman and we‘re not talking about Amber Frey. 

(BEGIN VIDEOTAPE)

DAN ABRAMS, HOST (voice-over):  And a detective admits police never questioned dozens of possible suspects in Laci Peterson‘s murder.  But are they really obligated to interview every homeless person in the area? 

Plus, Kobe Bryant‘s alleged victim apparently considered dropping out of the case.  What does that mean for the prosecution? 

And the controversial steps police are taking to keep this summer‘s political conventions safe.  Is it really a violation of our civil liberties if they search your bags if you‘re near one of the convention sites? 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  Another ABRAMS REPORT first in the Scott Peterson case.  On the docket tonight, months ago we reported that Scott Peterson had a number of girlfriends while he was married to Laci.  It seems neither case—neither side in the case really challenges that.  But now we are first to report new details about one alleged affair in particular.  According to a criminal investigative analysis done by the California Bureau of Investigations a woman named Janet, not going to say her last name, reported she had an ongoing sexual relationship with Peterson, and just like his affair with Amber Frey, she said she was unaware Peterson was married.  She claimed he took her to social events, socialized with other people. 

So how did she find out he was married?  From the report—quote—“ The young woman said the relationship ended after she unexpectedly visited a house Scott shared with several other men and found Scott and Laci in bed together.”

Now remember, they were not living together at the time.  He was back getting his degree, so he was living with a group of guys.  I guess Laci was visiting and the girlfriend didn‘t know it.  Yikes.  So what does that mean for the case? 

Let‘s bring in our legal team—criminal defense attorney Mercedes Colwin and in the courtroom for us, former San Mateo County prosecutor Dean Johnson.  Dean, I‘ve got to tell you, I think that this information, I know this sounds odd, actually may help the defense more than the prosecution, because I think they can say, you know, look he had had an affair before.  He didn‘t go and kill the person.  Laci‘s family didn‘t know about this affair either, the same way they didn‘t know about Amber Frey.  Seems to me that while it‘s going to be tough for the defense to sort of suck it up that it really could help them. 

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Yes, I think you‘re right.  I mean the point is here that Scott has had affairs before.  We know for sure about the details of this one.  There have been others, and the family was totally unaware of it.  And of course Laci never went missing after these affairs were discovered, so I think, yes, this could be feeding into a defense argument. 

ABRAMS:  But Mercedes, is the defense going to be willing to go to this jury and say, Scott Peterson had other affairs?  Here is the other woman he had an affair with and here is how intense their relationship was and, yet, he didn‘t kill her. 

MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY:  I think so, Dan.  In fact I think that Geragos laid that foundation in opening statement.  He said call him a cad, call him a liar, call him a jerk but don‘t call him a murderer, because he‘s had illicit affairs before and none of which amounted to murder.  So that‘s what we‘re dealing with here.  So I think they‘re absolutely going to use it and I think it‘s a great point that it‘s going to be fodder for them and certainly an excuse in the long run that he could not have been the murderer.

ABRAMS:  But—wait—how is it going to prove he couldn‘t have been the murderer? 

COLWIN:  Well only that—Dan just that it was the underlying excuse.  If he‘s got pattern of behavior that never led to some criminal misconduct and this pattern of behavior presumably existed for years during their relationship, none of which amounted to her disappearance...

ABRAMS:  But Laci wasn‘t...

(CROSSTALK)

ABRAMS:  ... Laci wasn‘t pregnant back then. 

COLWIN:  Understandably, but I think just on an emotional level, Dan it‘s so much harder.  I mean listen there are hundreds of years, thousands of years, men have murdered their wives, but it‘s not the same when it comes to children and I think that that‘s where the jury is going to draw the line.  I can see a man murdering his wife, but it‘s a real stretch to say he‘s going to murder his first-born son. 

ABRAMS:  I don‘t know.  I mean, Dean, does that sort of like biblical

reference...

(CROSSTALK)

ABRAMS:  ... sort of biblical argument sort of ring true with you, about the first-born son? 

JOHNSON:  Oh, I don‘t know if any of this rings true.  I mean it‘s really clear that if Scott Peterson or anybody else did this murder, they were really cold, and there‘s something in that person‘s heart that we just can‘t understand that they would put an eight and a half month pregnant...

ABRAMS:  Seven and a half months, seven and a half months.  Yes...

JOHNSON:  ... in the icy waters of San Francisco Bay.  Yes, but you know there‘s something that just really doesn‘t—there is a missing link here, which is that all of—we wonder why Mark Geragos has not tried to short-circuit all of this long ago.  This is really character evidence.  We know that the prosecution or we think that the prosecution is going to say, character evidence normally not admissible but admissible to show motive. 

ABRAMS:  Yes.

JOHNSON:  That requires a fact.  How do you take this character flaw that Scott Peterson has and connect it to a murder?  Show why this pattern of conduct or even one of the affairs, then becomes the motive for a murder and they haven‘t articulated...

(CROSSTALK)

JOHNSON:  ... I wouldn‘t be surprised...

(CROSSTALK)

ABRAMS:  Very quickly Mercedes...

(CROSSTALK)

ABRAMS:  Final word Mercedes...

COLWIN:  I think it‘s going to be very difficult for them to make that connection because Amber Frey has a child of her own.  So for the prosecution to go forward and said he wanted to establish a life with Amber Frey...

ABRAMS:  But what about the fact...

(CROSSTALK)

ABRAMS:  ... that he said to Amber I just—I am happy with your child and I don‘t want to have any other kids. 

COLWIN:  Dan, he wants a sexual relationship with her.  I‘m sure he would have said anything to continue that relationship...

ABRAMS:  Doesn‘t sound like it was real tough for him to have that sexual relations, to be quite honest with you.  I mean it sounds like you know the first night, things were kind of moving. 

COLWIN:  I think they heated up a little bit, but it‘s a relationship that only lasted a couple months.  They were only together four nights presumably.  They only went out...

ABRAMS:  All right.

COLWIN:  ... four times, so I don‘t think it‘s really going to establish...

ABRAMS:  Now to the trial—day 26.  We begin with testimony though from late yesterday, a Modesto police detective the defense hopes will put more reasonable doubt in the jurors‘ mind.  He said one possible suspect actually confessed to the crime.  Because of the man‘s mental history, Detective Ray Coyle discounted the claim.  On cross-examination yesterday Mark Geragos he said he murdered a female named Lisa Peterson, right?  He said the only witness was the dog.  He said he broke her neck. 

Coyle:  Yes.

Detective Coyle also said the man claimed he was driving his sister‘s van at the time and asked his friend to pick up the body.  Today, prosecutors tried to get their case back on track. 

Prosecutor Rick Distaso: In February 2004, he was arrested in Oregon?

Coyle:  Yes.

And that‘s where he gave the story about breaking the woman‘s neck in Christmastime December 2002?

Coyle:  Yes.

He went on to ask—Distaso:  Did Detective Brocchini follow up with number 42‘s, this guy‘s sister and mother on December 24?

Coyle:  Yes.

Distaso:  Where was he?

Coyle:  His sister said she‘s positive he was with her on that date.

There are 309 sex offenders and parolees in the Modesto area and many of them homeless.  He and other officers tried to track down as many as he could.  Detective Coyle said he didn‘t follow up on the whereabouts of some parolees and registered sex offenders in the area without confirming their alibis and he‘s admitted he‘s still working on tracking down two dozen sex offenders that were registered in a one-mile radius of the Peterson home.

My take—the police can‘t be expected to interview each and every sex offender or homeless transient person in the greater Modesto area.  This particular argument is just typical defense bluster.  But Dean Johnson, there is that one thing about the Lisa Peterson.  What do you make about that, about this guy saying, you know, he killed someone named Lisa Peterson?  The problem is you get nuts in every high-profile case, claiming that they killed the person. 

JOHNSON:  Oh, absolutely.  False confessions by nut cases in these high-profile cases are very, very common.  That‘s why as a matter of law you can‘t base a murder conviction solely on a confession.  And you know what?  If Scott Peterson had had an alibi that was as good as offender number 42, which is the only name we know this fellow by, Scott Peterson would have been eliminated, as well. 

ABRAMS:  Yes. 

JOHNSON:  And you‘re absolutely right.  The police have a limit on what they can do.  This list of people...

(CROSSTALK)

JOHNSON:  ... was a list of sex offenders, and the sex offender‘s statute, 290 of the penal code was actually amended a few years ago because it originally required people...

ABRAMS:  All right. 

(CROSSTALK)

ABRAMS:  I don‘t want to get too much of the history of the sex offender statute...

(CROSSTALK)

ABRAMS:  All right. 

(CROSSTALK)

ABRAMS:  Go ahead Mercedes.  Go ahead.

(CROSSTALK)

COLWIN:  ... I really do and with all respect to you and Dean, there was a history, apparently, that Laci had had these verbal altercations with these homeless people in the neighborhood and there were many...

ABRAMS:  It wasn‘t...

COLWIN:  ... instances where the neighbors would say, we saw Laci have these...

ABRAMS:  A neighbor, yes...

COLWIN:  ... verbal confrontations...

ABRAMS:  ... yes...

COLWIN:  ... with these homeless people.  So, yes, I do think that there is a responsibility...

ABRAMS:  I‘ve got to go to Bill Majeski, but very quickly, Dean, was there—is there any claim that there was plural, a history of Laci having altercations with homeless people? 

JOHNSON:  Yes, there is some suggestion that Laci actually confronted these homeless people who she felt were...

ABRAMS:  More...

JOHNSON:  ... a growing problem...

ABRAMS:  ... on more than one occasion though? 

JOHNSON:  ... in the neighbor and in fact—yes, on more than one occasion.  In fact she had organized a group to close down certain areas of the park after sunset...

ABRAMS:  All right.

JOHNSON:  ... in an effort to keep out what she thought were...

ABRAMS:  Bill Majeski...

JOHNSON:  ... homeless people...

ABRAMS:  ... former New York City police detective, what do you make of this? 

BILL MAJESKI, FMR. NYPD DETECTIVE:  Well, I‘m kind of in agreement with you, Dan.  I don‘t think it‘s absolutely necessary for the police to go out there and in-depthly investigate each of these potential suspects.  You know all of these homeless people.  It‘s kind of ridiculous to even try to find a lot of them.  The police have done an outstanding job here.  I think one of the problems...

ABRAMS:  What are you saying that based on Bill...

(CROSSTALK)

ABRAMS:  ... is that just your automatic reaction any time the police...

(CROSSTALK)

ABRAMS:  ... are involved to say they did outstanding...

MAJESKI:  Most detectives do—in cases like this, most detectives do an outstanding job.  I think the problem here is the prosecutorial end.  Prosecutors prep detectives before they go in and testify. 

ABRAMS:  These detectives were leaving evidence back in places.  They had to keep going back...

(CROSSTALK)

COLWIN:  I don‘t think they did a great job. 

ABRAMS:  I think that‘s a tough defense to say that the detectives did a really great—I‘m not going to say that they were awful, but to say they did a great job like this is sort of the sample, the paradigm upon which other detectives should be judged.

COLWIN:  There is so much misconduct on the behalf of Brocchini.  I mean we‘re talking about exculpatory evidence that was deliberately excised out of his report.  You can‘t say they did an outstanding job...

ABRAMS:  I don‘t know about misconduct...

MAJESKI:  OK, but again...

ABRAMS:  Misconduct...

MAJESKI:  ... it‘s the prosecutor that goes over...

(CROSSTALK)

MAJESKI:  ... all of these reports before...

JOHNSON:  ... nobody has decided that yet. 

MAJESKI:  ... they testify.  And defense—if you‘re a defense lawyer you‘re going to be talking to your investigator and talking to the investigator about what they‘re going to be testifying about.  The prosecutor is going to be talking with the detective and say all right let‘s look at the reports...

ABRAMS:  Yes.

MAJESKI:  ... let‘s see what we have.  Are there any failings here?  If there are, let‘s go back and remedy them before we put them on the stand. 

ABRAMS:  Yes.  No and I agree.  Look, the prosecutors have done a pretty poor job in this case, as well, so far.  I think there‘s a lot of blame to go around on the prosecution‘s side. 

All right.  You know what?  Let‘s take—what are we going to do—take a break here.  Take a quick break, come back with more of this in a moment. 

Coming up, we get to what happened in court today, another detective on the stand or a number of witnesses testifying about how someone moved furniture into the nursery in the Peterson house weeks after Laci disappeared, yet before she was found. 

Later in the Kobe Bryant case, the lawyer for the alleged victim says the woman considered pulling out of the case.  What does that mean for the prosecution?

And he was President Clinton‘s national security advisor, now we learn Sandy Berger is under investigation for taking classified terrorism related documents home.  What are the possible legal ramifications of that?

Your e-mails abramsreport@msnbc.com.  I‘ll respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, today‘s testimony in the Scott Peterson trial.  Why was Scott Peterson turning his unborn baby‘s nursery into a storeroom just weeks after his wife disappeared? 

(COMMERCIAL BREAK)

ABRAMS:  We are back.  More important testimony today in the Scott Peterson case from a detective who searched the Peterson nursery (UNINTELLIGIBLE) could help the prosecution. 

MSNBC‘s Jennifer London is at the courthouse with the latest.  Hi Jennifer. 

JENNIFER LONDON, MSNBC CORRESPONDENT:  Hi, Dan.  Detective Darren Ruskamp was called in to help search the Peterson warehouse and also the Peterson home, specifically the baby room for Conner.  Ruskamp testifying that he searched the nursery on 12/26 and 12/27/02.  He did what he called a scientific search.

He said that when he was there on those dates, the nursery was decorated very much as you would expect.  He saw a crib, a rocking chair and some baby toys.  However, when he returned to the Peterson home in mid February, just about six weeks later, he said that the nursery just didn‘t look the same.  Prosecutor Dave Harris saying, did you notice anything different?

Ruskamp:  Yes.

Harris:  What?

Ruskamp answered in the nursery there was previously a rocking chair, crib against the wall, dresser here.  Ruskamp is referring to a photo of the nursery that was shown in court.  Now, Ruskamp continues, you could only enter the nursery just a few feet before, then you were stopped by a row of chairs.

Harris:  What do you mean?

Ruskamp answered three different chairs lined up in front of the closet, in front of the crib with bedding, sheets, pillows and things like that all piled up in the chair.

Now remember this search was done in February.  This is long before the body of Laci and Conner was discovered.  Also, Ruskamp described part of the search at the Peterson warehouse.  He said he found a very large duffel bag.  Inside the duffel bag was a camo jacket—that‘s how he described it, meaning a camouflage jacket, and also a fisherman‘s jump suit. 

And Dan, we understand right now, that yet another Modesto police detective is on the stand, and he also was involved in searching the Peterson home. 

ABRAMS:  All right.  Jennifer London, thanks a lot. 

Mercedes, oops, with regard to the nursery?  Maybe I should have waited until they found the body and everyone knew that he was dead...

COLWIN:  A couple of things, Dan.  You know everyone grieves differently.  There are people that have lost their children through natural causes and suddenly they revamp the entire nursery because there is some assurance every time they walk by it.  They use it as a storage.  They change it into a bedroom.  They change it to a study...

ABRAMS:  But as far as he‘s concerned...

COLWIN:  So it‘s not like...

ABRAMS:  ... they‘re not dead.  We‘re not talking...

COLWIN:  But...

ABRAMS:  ... about grieving. 

COLWIN:  ... “Modesto Bee”...

ABRAMS:  We‘re talking about waiting. 

COLWIN:  ... in January had already started detailing—in all possibility, they were starting to detail that perhaps their bodies were already in the water, so you know, it‘s starting to—things are starting to turn and saying their disappearance was suspicious, her disappearance may actually amount to murder.  So it‘s already starting turning in January that this is happening.  So if—she is missing for two months—actually two and a half—two months exactly to the date practically when they were turned back.  It‘s certainly reasonable that he would have started to put things in there just to hide it.  Look how beautifully decorated those pictures...

ABRAMS:  Yes, you know sell the car, sell the house, move on with your life.  You know and hey, if your wife shows up, bonus.

(LAUGHTER)

COLWIN:  Yes, Dan, I think it is going to be—I think the prosecution—I‘ll concede that the prosecution will use it, but ultimately I think that the defense can say listen this is a man whose wife was missing inexplicably for two months...

ABRAMS:  Yes.

COLWIN:  ... it was too hard for him to walk by...

ABRAMS:  Bill Majeski, you get the final word on this.

MAJESKI:  OK.  I think that the police had their sights set on Peterson.  I think they did it rightly.  I think that their investigation was reasonably thorough, and I think that if the prosecution had better prepared for their case, I think there would be less things that the defense can hang its hat on.

I think that the detectives have done a reasonably good job on it, and I think that if, again, the prosecution would just move forward and concentrate on the murder, not all of the irrelevant material that is of no value to the prosecution‘s case. 

ABRAMS:  All right.  Bill Majeski...

MAJESKI:  It‘s giving them a lot of things to just hang their hat on unnecessarily.

ABRAMS:  ... Mercedes Colwin and Dean Johnson, thanks a lot. 

Coming up...

COLWIN:  Thanks Dan.

ABRAMS:  ... the FBI investigates Clinton‘s national security advisor Sandy Berger for taking classified documents home.  He says he took them by accident.  Could a man who was once one of the nation‘s top security officials really make that kind of mistake and is it a crime? 

And later, police in Boston and New York take controversial steps to try to keep the convention safe.  Are random searches really a constitutional problems?  The ACLU says yes. 

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  Could a formal national security advisor for the Clinton administration have inadvertently removed highly classified documents on terrorism from the National Archives?  That‘s what the FBI wants to know. 

NBC‘s justice correspondent Pete Williams has more. 

(BEGIN VIDEOTAPE)

PETE WILLIAMS, NBC JUSTICE CORRESPONDENT:  Law enforcement officials say this has actually been under investigation for months ever since Sandy Berger went to the National Archives to find documents requested by the commission that‘s investigating the 9/11 attacks. 

(voice-over):  Former President Clinton asked Berger, once his national security advisor, to review documents from his administration and identify materials dealing with terrorism that the 9/11 commission was interested in getting.  Through a spokesman, Berger says he reviewed thousands of pages over several days last fall at the National Archives. 

Government officials tell NBC News that archives employees told the FBI  they saw Berger putting some of the classified documents into his clothing and saw him write notes and then take them with him when he left, which violates archives policy on classified documents.  In a written statement, Berger says he did take notes and that he inadvertently took a few documents, but he says when informed that documents were missing he returned all he had, except for a few he apparently discarded and that he deeply regrets his sloppiness. 

Government officials say the missing documents were highly critical reviews of the Clinton administration‘s handling of the millennium threat, including a foiled plot to bomb the Los Angeles Airport. 

(on camera):  Law enforcement officials say it‘s still a pending investigation even though it‘s been under way for more than seven months, but that no decisions have been made on whether to file charges or close the case. 

I‘m Pete Williams, NBC News, Washington. 

(END VIDEOTAPE)

ABRAMS:  All right.  Thanks Pete.  A few hours ago Sandy Berger stepped down from an informal advisory role with the Kerry campaign.  His attorney says Berger doesn‘t want the investigation to be used for partisan purposes. 

My take—I don‘t know why we‘re finding out about this months after the fact, but this is serious stuff.  I‘m joined by Jonathan Turley, professor of constitutional law at George Washington University.  Professor, good to see you back on the program.  All right...

JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY:  Good to be here. 

ABRAMS:  ... give us an overview.  You‘re generally a pretty straight shooter.  You‘ve given both parties a hard time over the years.  How serious is this? 

TURLEY:  Well you know it is serious in one sense and I do a lot of national security cases.  I work in skips (ph) like the one he was in, a skip (ph) being a secured room and this is really something beyond sloppiness.  When you look at the federal laws, they actually are quite clear about the mishandling of classified information, the removal of classified information from a secure facility, the mishandling and the most serious being the unauthorized disclosure. 

But on the other hand, this is a violation that occurs a lot.  I get lots of phone calls from people who have these problems and for the most part, they are not criminally charged.  For Sandy Berger, he‘s got two problems facing him.  One is the potential of a criminal charge.  The more attention this case gets, the harder it is for them to look the other way.  And the second problem is just the damage done.  You know, in this town, it‘s better to be evil than stupid.  I mean, you know, in some quarters being evil and smart is...

ABRAMS:  (UNINTELLIGIBLE)

TURLEY:  ... valued.  But you know this is really damaging to one of the really stars on the Kerry team. 

ABRAMS:  Let me read from Sandy Berger. 

I inadvertently took a few documents from the archives.  When I was informed by the archives that the documents were missing, I immediately returned everything I had except for a few documents that I apparently accidentally discarded. 

Do you think this is the sort of thing he might get prosecuted for criminally? 

TURLEY:  Well, he can be prosecuted...

ABRAMS:  Do you think he will be?

TURLEY:  I find it still unlikely.  You know in the King espionage case, we found dozens of these violations committed by officials and we named the officials and submitted them to the U.S. government, and none of those officials were punished let alone prosecuted.  And so you know, if history is any guide, he probably won‘t be prosecuted, but what worries I think Berger who knows this town better than most people, is the—you know, when you‘re on the cover of “TIME” you end up doing time.  There‘s this concern that the more attention these cases get the harder it is to walk away. 

ABRAMS:  And who ultimately makes the decision on this whether to prosecute? 

TURLEY:  It will be the Department of Justice, and they‘ll get a lot of input from the CIA.  Technically the director of the CIA is a holder of all classified information.  He essentially controls clearances and classified rules.  What‘s most damaging for Sandy Berger is even if he avoids this bullet, which he may, it will be interesting to see if he can get a clearance again...

ABRAMS:  Yes.

TURLEY:  ... because of this type of blunder. 

ABRAMS:  Professor Turley, it‘s good to have you back on the program. 

It‘s been too long. 

TURLEY:  Thank you.  Yes. 

ABRAMS:  Coming up, a lawyer for Kobe Bryant accuser says she had second thought about taking part in the case.  What do those doubts say about the prosecution‘s case? 

And if you‘re going to be commuting on a train in Boston in the next week be prepared for police to possibly search your bag.  Are they going too far to keep the convention safe?

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Kobe Bryant‘s alleged victim apparently had second thoughts and considered dropping out of the case.  What could that mean for the prosecution?  First the headlines. 

(NEWSBREAK)

ABRAMS:  Welcome back.  Is the alleged victim in the Kobe Bryant rape case having second thoughts about being involved?  In a closed-door hearing yesterday, an attorney for the now 20-year-old woman who‘s accused Kobe Bryant of rape says yes.  Attorney John Clune asked the court to stop posting documents in the case on a media Web site and to stop e-mailing information to the press. 

Remember the court has made several mistakes since the case began.  In September the court forgot to black out the alleged victim‘s name when it posted a document on the site.  Her mother claims she received hundreds of death threats after her name was made public.  Then again last month a court reporter mistakenly e-mailed transcripts of closed-door hearings with very serious information about the accuser‘s past was discussed—sent it to media outlets. 

Yesterday, the alleged victim‘s attorney said—quote—“The only time this young woman has considered not going forward with her case, is when the people who have been sworn to protect her fails”.  There it is.  But the district attorney‘s office insists she has very strong resolve about this case. 

My take.  My take.  I understand why she may be thinking at times enough is enough.  What do I need this for.  But if the alleged victim was seriously thinking about pulling out based on her name being made public to a press corps that already knew her name, but just doesn‘t report it, could be a tough case for prosecutors. 

Joining me to debate, Norm Early, former Denver D.A. and Colorado prosecutor.  Norm is also affiliated with a firm that represents pro bono, a friend of the alleged victim.  Criminal defense attorney Jeralyn Merritt also joins me.

All right, Norm, I mean if you‘re the prosecutor in this case and you hear from the alleged victim‘s attorney that at some point she was thinking of backing out of the case, it‘s got to make you nervous (UNINTELLIGIBLE)?

NORM EARLY, FMR. DENVER D.A.:  I think that the point was well made that the only time she‘s ever considered backing out of this case is not because of something the media has done to her, not because of something the defense has done, all of those things she had calculated before getting involved in this case.  But because of something the court did and because of the court‘s mistakes, and the court is there to protect her, but instead of protecting her has allowed her name to be published wouldn‘t it shouldn‘t have been, and then of all things allowing a portion of the rape shield hearing to be disseminated to a number of newspaper places.  Now a lot of people think that what John Clune was doing was trying to influence the judge‘s decision in so far as a rape shield hearing is concerned, to limit the amount of testimony.  But I really believe that Judge Ruckriegel has already pretty much made up his mind where he‘s heading here...

ABRAMS:  So what if he was? 

(CROSSTALK)

ABRAMS:  I mean Judge Ruckriegel is a big boy. 

(CROSSTALK)

ABRAMS:  We don‘t need to be sort of be I don‘t think be condescending to the judge and suggest because that because John Clune is being an advocate for his client that somehow that‘s some sort of sin here Jeralyn.

EARLY:  I saw some...

JERALYN MERRITT, CRIMINAL DEFENSE ATTORNEY:  Well...

EARLY:  I saw some...

ABRAMS:  Let me let Jeralyn...

EARLY:  Oh I‘m sorry.  Go ahead Jeralyn.

MERRITT:  The issue the defense is arguing here is that John Clune is trying to persuade the court.  He‘s actually trying to influence the court in its ultimate ruling...

ABRAMS:  Right.

MERRITT:  ... on the rape shield statute by saying, you know judge, all of this information is coming out.  My client is thinking of dropping the case.  It‘s almost like the only way the case is going to go forward, Judge, is if you keep everything, you know is if you keep this information out.  I don‘t blame the accuser for having second thoughts.  I think it‘s awful that all of this information about her as a person is—you know may come into evidence.  But that‘s the path that she chose.  She chose to have these charges be brought forward in a trial.  And she‘s not really the party of interest here. 

ABRAMS:  Let me read...

MERRITT:  She‘s not a party of record.  It‘s not even her decision. 

ABRAMS:  Let me read what John Clune—between John Clune and the judge. 

John Clune: We have expected what the defense has done and the media has done, sort of accusing the court there.

And Ruckriegel said you should know better.  You should have made this an issue earlier.

Clune: Your remarks are not well received.  No one else has been harmed by these mistakes.  Not the prosecutors, not the court, not the media.  It‘s an honest mistake, but it‘s very difficult to explain that to a 20-year-old girl and her parents.

You know, you got to give Clune credit for just getting in there and mixing it up with the judge on this. 

EARLY:  Hey Dan, I think that he‘s doing absolutely what he should do.  He‘s being an advocate.  He‘s being an advocate not only in the courtroom there, but he‘s being an advocate for issues with respect to rape shield.  But I don‘t think what he has said is going to influence Judge Ruckriegel.  Judge Ruckriegel already has a pretty good idea what he‘s going to do on rape shield. 

It may affect it minimally but I don‘t think there‘s going to be a big effect because John Clune comes in there and advocates for his client.  Judge Ruckriegel is going to do what he was getting ready to do even before these comments were made.  But these comment are good comments for the public to consume.  They ought to know that this woman continues to live in a living hell since she has brought these charges against Kobe Bryant, and that she is suffering as a result thereof, and now she‘s suffering at the hands of the court. 

ABRAMS:  Go ahead Jeralyn.

MERRITT:  You know, this was her choice and for her now to come in and say the court should remove public pleadings from its Web site is disingenuous and it‘s not right.  You know first of all, the court Web site was set up at the initiative of the court not at the initiative of the defense, and it was done to be helpful to the clerks of the court... 

ABRAMS:  And it has been.

MERRITT:  ... disseminate information to the media and these are public documents.  John...

ABRAMS:  But he‘s not saying it shouldn‘t be—wait, wait.  He‘s not saying it shouldn‘t be made public...

EARLY:  No he‘s not.

ABRAMS:  He‘s just saying you guys...

(CROSSTALK)

ABRAMS:  ... don‘t know how to disseminate it because you guys keep messing up. 

EARLY:  And that‘s the problem...

MERRITT:  And you know what—the answer then is for the court to put on additional staff so that these mistakes don‘t happen. 

ABRAMS:  Yes, I agree. 

MERRITT:  You know her name was broadcast on the Internet before it got leaked through a court document and then whoever leaked the information then took down...

ABRAMS:  I agree.

MERRITT:  ... and took it down.  It‘s not the media‘s job to patrol the government.  The government...

EARLY:  No it‘s not. 

MERRITT:  ... needs to do that and she is not a party to the case. 

ABRAMS:  Yes.

MERRITT:  She‘s a witness. 

EARLY:  Or else Dan, they should have a longer period of time between the actual creation of documents until they‘re put on the Web site so that they can be reviewed in a very thorough fashion...

ABRAMS:  I‘ve got to tell you—both of you know this.  We‘ve seen a lot of high profile cases where the court put things on the Web site and they redact things a lot. 

EARLY:  Right.

ABRAMS:  And I‘ve never seen the kind of mistakes that we‘ve seen in this case.  And you know, I think John Clune has every right to be angry about it.  The question is how do we solve the problem. 

All right, Norm Early and Jeralyn Merritt, thanks for coming...

EARLY:  Thanks a lot Dan, Jeralyn.

MERRITT:  Bye Norm. 

ABRAMS:  Coming up, controversial steps Boston and New York police are taking to try to keep both cities safe during the conventions.  Is it really a violation of civil liberties to have random checks of bags near the area? 

And why is there such secrecy surrounding the Michael Jackson case? 

What are his lawyers afraid of?  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  For months we‘ve heard warnings from Washington that next week‘s Democratic Convention at Boston‘s FleetCenter could be a target for terror, as could next month‘s Republican Convention at Madison Square Garden in New York.  Now police in both cities are preparing some extraordinary measures to try and improve security in both areas.  That includes random searches of commuter rail passengers‘ bags and packages in Boston and it did include plans for random searches of protestors‘ bags and backpacks in New York, but that was before a federal judge told the NYPD it must have knowledge of a specific threat to security before police can search protesters‘ bags at random. 

New York Civil Liberties Union, which sued the city, said it‘s a historic victory for the right to protest.  NYPD says it won‘t change their plans.  The president of the Detective Endowment Association says the ruling gives—quote—“An open door to terrorists, further handcuffing police at a time that they should be given a little bit more latitude.”

My take—I agree with the detectives on this one, particularly when it comes to random searches on the trains.  Let‘s see about my guests.  Donna Lieberman is executive director of the New York Civil Liberties Union and Anne Bremner is a former Washington State prosecutor who‘s represented police departments in many civil and criminal trials.

Ms. Lieberman, here is my concern, is that the judge in the New York case, is saying essentially—let me read a little bit more from his opinion.  This is number three here.

The defendants have not shown the invasion of personal privacy entailed by the bag search policy as justified by the general invocation of terrorist threats without showing how searches will reduce the threat.

It seems somewhat self-evident as to how searches could help reduce the threat.  No? 

DONNA LIEBERMAN, NYCLU EXECUTIVE DIRECTOR:  Well, no.  It‘s not self-evident.  And I think it‘s important to note that the police department took the position at the—during the course of this litigation, that it in fact did not plan to engage in generalized searches of people or their bags, as a condition of entering into rally areas.  So it‘s not just the New York Civil Liberties Union that believes that these searches are inappropriate and wrong, but the police department. 

ABRAMS:  So who is on the other side? 

LIEBERMAN:  Well the police department didn‘t want to be ordered...

ABRAMS:  Right. 

LIEBERMAN:  ... to not engage in this process. 

ABRAMS:  Right.

LIEBERMAN:  But basically, the police department has abandoned the practice of generalized search...

ABRAMS:  But...

LIEBERMAN:  ... as a condition of going to a demonstration.

ABRAMS:  But again apart from sort of talking about it in a general sense, because generally, in terms of protests, you know, I think it‘s a tough argument to make that in any protest that people should be able to check people‘s bags.  I mean I would find it a hard position for anyone to justify, but it does seem to me that if you accept the notion that there is a specific concern about these conventions, that it‘s not so much to ask, it‘s not—when you‘re balancing the interests here it‘s not so much to say you know what, if you‘re going to be in the immediate area you may be subject to a little bit more searches in that short period of time. 

LIEBERMAN:  Well I think that where we differ is as to whether there‘s a specific concern with regard to these conventions. 

ABRAMS:  So you don‘t believe the administration on that. 

LIEBERMAN:  I think—no, I think that there are—certainly there are heightened security concerns as a result of the conventions, but that doesn‘t mean that there are specific concerns with regard to any particular demonstration at any particular—at any of the—either of the conventions.  And it‘s important that we not allow generalized fears, generalized and undifferentiating...

ABRAMS:  Yes.

LIEBERMAN:  ... fears about security to allow us to roll back the fundamental right to privacy...

ABRAMS:  You know...

LIEBERMAN:  ... so that people are subjected to searches whatever they‘re doing or particularly in this case as a condition of protest...

ABRAMS:  You know Anne Bremner, it just seems to me that that position ignores the realities of the situation to a certain degree.  What do you make of it? 

ANNE BREMNER, FMR. STATE PROSECUTOR:  Yes.  Oh I completely agree with you, Dan.  I mean that there‘s an unambiguous threat from al Qaeda.  We know that there‘s a threat.  We know...

ABRAMS:  But that threat is always out there.  I mean what Ms.  Lieberman is saying is the threat is always out there and there‘s not a specific enough danger now... 

(CROSSTALK)

ABRAMS:  ... and I guess my response to that would be there‘s—it‘s going to be very unusual that we‘re going to know specifically—there‘s going to be someone with a backpack...

BREMNER:  Right.

ABRAMS:  ... who is going to be trying to do this and they‘re going to be wearing a blue jacket. 

BREMNER:  Right.  But the thing is, you know what if we knew what was going to happen right before 9/11?  You know we had information that there would be a target in New York City and the planes would be targets and everything else.  You‘re going to have some heightened need and heightened scrutiny to search people to make sure everyone is safe.  I mean we all have a right to our own personal integrity and privacy and a Fourth Amendment right against intrusion onto our persons and our belongings, but we also have a right to live and we have a right to be safe.  And I think that it‘s, like you said, a very limited intrusion here and it‘s absolutely warranted. 

ABRAMS:  Do—Ms. Lieberman...

(CROSSTALK)

ABRAMS:  ... do you refuse to accept this as an exception.  I mean I get what you‘re saying as a general principle, but do you not except the conventions as exceptions to the rule?

LIEBERMAN:  No and the Fourth Amendment properly doesn‘t create a Republican Convention or Democratic Convention exception to our privacy rights.

ABRAMS:  But it does...

LIEBERMAN:  And neither does...

ABRAMS:  It allows police to balance...

LIEBERMAN:  ... and neither does good policing create an exception.  You know, the point about the 9/11 attack was raised.  You know, I mean it‘s been said time and time again that you know, it wasn‘t that we didn‘t have information in our possession, is that we didn‘t connect the dots, and when policing gets involved in sweeping so broadly, as to collect you know, so much information that you can‘t process or targeting everybody instead of suspicious activity, which is like the good old-fashioned kind of policing...

ABRAMS:  But when the...

LIEBERMAN:  ... then we inundate our police department...

ABRAMS:  But see...

LIEBERMAN:  ... and overwhelm it...

ABRAMS:  I‘ll give you...

LIEBERMAN:  ... with relevant information. 

ABRAMS:  I‘ll give you the final word on this, but it troubles me when the New York Civil Liberties Union gets into the business of telling people how to police. 

(CROSSTALK)

ABRAMS:  I mean I get it on the constitutional issues, but when the New York Civil Liberties Union is telling the police how to do the policing, I get a little uncomfortable.  I‘ll give you the final...

LIEBERMAN:  Well the court has told the police department and the police department has concurred that it‘s not going to engage in suspicion-less searches of people trying to go to protest at the Republican Convention. 

ABRAMS:  All right.

LIEBERMAN:  The New York Civil Liberties Union is trying to uphold the Constitution, protect our privacy, and strike the right balance between...

(CROSSTALK)

LIEBERMAN:  ... freedom...

ABRAMS:  I‘ve got to wrap this up.

LIEBERMAN:  ... and security. 

ABRAMS:  Donna Lieberman—I‘m sorry Anne Bremner, I didn‘t get you in more.  I promise next time I will. 

BREMNER:  Excellent.  Thank you so much.

ABRAMS:  Coming up, why it‘s time for Michael Jackson‘s lawyers to stop blaming the media for problems the prosecutor and grand jury created for them.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, your e-mails on Amber Frey and our exclusive report last night about what she turned over to police.  Many of you say the strip of condoms explains a lot about their relationship.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—what is Michael Jackson‘s defense team so afraid of?  In a venomous argument to keep almost all of the details of the case secret, Attorney Robert Sanger wrote—quote—“The circus created by the news media in this case has defied all rationality.  The illogic of the charges against Mr. Jackson and the absence of evidence to support the charges has been drowned in the flood of commotion.”

So, the media should not have filed charges against Jackson?  It was the prosecutors, not the media who filed the charges.  It was the grand jury, not the media who added charges.  In fact, on this program, it‘s safe to say we‘ve questioned the prosecution‘s case far more than the defense.  At times we‘ve even asked whether it‘s time to effectively drop charges against Jackson and we‘re not alone. 

The problem?  We don‘t even know exactly what Jackson is accused of doing.  Even his alleged co-conspirators, names redacted from the record.  All legal motions filed under seal and yet Jackson‘s attorney writes—quote—“The public, the press and the entertainment media are all better informed than they would be in most cases.”

(UNINTELLIGIBLE) I‘ve covered every high profile case of the past 10 years.  I assure you, there‘s never been one where the public has been less informed.  Sanger complains that Jackson is—quote—“Surrounded by wild rumors and salacious allegations.”  Well the antidote is simple.  Open up more of the evidence for review.  The unprecedented secrecy, of course, leads to more speculation, not less, to more rumors, not less.  It doesn‘t mean everything has to be public.  But I would think if Jackson is innocent, his lawyers would want more made public. 

As Supreme Court Justice William Brennan once wrote so that it would “Be the necessary predicate for a movement to reform police methods, pass regulatory statutes or remove judges who do not adequately oversee law enforcement activity.”

The U.S. Supreme Court has made it clear you need more than just lots of publicity to prove it affects the defendant‘s right to a fair trial.  In fact, that‘s exactly what the federal court of appeals ruled when the judge in the Martha Stewart case tried to keep the media out of jury selection.  So how did Jackson‘s lawyers distinguish this case from Martha Stewart‘s?  well they‘re suddenly concerned about the privacy of the alleged victim and claim that in Stewart—quote—“Each participant sought the intense glare of exposure unlike this case.”  Really? 

(CHEERING)

ABRAMS:  Jackson has a top-notch legal team and what seems like a strong defense.  The people in the state of California have the right to know more about what led their prosecutors to file this case. 

I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  Last night in another ABRAMS REPORT exclusive, we told you about the list of items Scott Peterson‘s girlfriend, Amber Frey, turned over to the Modesto, P.D., which included three bottle corks—dated corks with their names on them, Scott‘s tuxedo rental receipt, a Christmas party invitation, photos of them at that Christmas party, Frey‘s Christmas gift to Peterson with the words “for my love” on the paper, his gift to her and a strip of several unused wrapped condoms apparently with Scott‘s fingerprints on them. 

Plenty of e-mails as to what this means.  Bruce in California, “So we have corks, which Amber saved, a present for Scott that he clearly did not receive that was still wrapped and in her possession, condoms and a gift which easily could have been bought for Amber‘s child.  One might easily conclude that this was a relationship to her and sex to him.”

From Clarence, New York, Susan Leckey.  “Amber comes across like a love struck middle schooler.  She saves a party invitation that anyone else would have put in the trash the next day and produces three corks with names and dates written on them.  Then she hands over a strip of condoms.  Wow, now that‘s evidence of Scott‘s true devotion and motivation for murder.”

Jim Free in Memphis.  “As for the condoms, this goes more to the point that he did not know her well.  Why in a serious relationship would a man use condoms if in fact that relationship was to continue?”

Hey, Jim, it‘s called birth control. 

There‘s always a romantic in the bunch.  A.R. in Pennsylvania writes, “Why is it so surprising that Scott Peterson fell in love with Amber?  Although men date and have affairs, there‘s always one special lady that they fall in love with.” 

Last night in my “Closing Argument” I said it is so disheartening to read about the newfound lawyering of politics.  Both parties preparing their attorneys to cover every voting district in the country, claiming they‘re just trying to promote ballot access and avoid disenfranchising eligible voters.  I said, yes, right.  Both sides will be trying to nullify any votes that go against them. 

In Los Angeles, Kathleen Rogers.  “Dear Mr. Abrams, if it was your personal political party that was disenfranchised the last election, I‘m pretty sure you would understand better why we are not going to let it happen again.”

Silver Spring, Maryland, Irene.  “Democratic election lawyering has correctly uncovered significant errors in the state of Florida‘s felon list.  Absent this lawyering, eligible voters would have been turned away on election day.

Finally in Tallahassee, Florida, Mickey Messina.  “I normally tend to agree with your take on things, but I don‘t agree with you about us not being able to blame the lawyers—I said we shouldn‘t blame them—because you think that they‘re just symptoms of the disease.  This poll raiding by the lawyers is merely a reflection of the strong fervor that lawyers from both parties feel for their respective party‘s candidate.  I think it‘s absolutely warranted to blame them.”

Mickey, to me it is the political parties who are really to blame, not the lawyers.  You can criticize them.  I criticize lawyers a lot on this, so I figured I‘d let the politicians take the heat on this one. 

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

“HARDBALL” with Chris Matthews up next.  Thanks for watching.  See you tomorrow. 

END   

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