updated 7/22/2004 9:19:53 AM ET 2004-07-22T13:19:53

Guest: Dean Johnson, Lisa Pinto, Trent Copeland, Kevin Joiner, Robert Matas, Solomon Wisenberg, Sean Maloney

DAN ABRAMS, HOST:  Coming up—is the Michael Jackson D.A. trying to silence possible critics by telling them they could be witnesses in the case? 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  In a speech this week Tom Sneddon admitted he‘d sent letters saying he intended to call certain people as witnesses in the case in order to—quote—“keep them off of TV.”  Can he do that? 

Graphic testimony in the Scott Peterson trial—the jury shown autopsy photos of Laci Peterson.  Many jurors looking away. 

Plus, the search for a pregnant woman missing since she went jogging in a Salt Lake City park on Monday. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, day 27 in the Scott Peterson trial.  In the past hour or so a drastic turn in the testimony, so graphic that Laci‘s mother had to leave the courtroom. 

For a full report, we‘re joined now by Edie Lambert from NBC affiliate KCRA.  Edie, I understand the autopsy photos were shown.

EDIE LAMBERT, KCRA CORRESPONDENT:  Yes, they were and Dan, as you well know, for about the past week the jury has really been hearing about the minutia of searches done on the Peterson home, their vehicle, Scott‘s boat and the warehouse.  Today a very jarring reminder that two murder victims are at the center of this trial. 

Now John Nelson just finished testifying.  He is a criminalist at the Contra Costa County Crime Lab.  It was his job to document and process part of the autopsy conducted on Laci Peterson.  And of course that meant showing some very graphic pictures in court.  That autopsy was conducted on April 14 of last year. 

And he talked about the evidence that he collected from the body, specifically a bra, underpants, tan pants or shorts that he said were just too deteriorated to tell, but they did have a 15-inch piece of duct tape still attached to the right leg.  Also collected a red plastic fragment that was on the chest section. 

That was something that the jury saw—you could see bone sticking out and just a small piece of plastic—four hairs from various parts of Laci‘s body and some kind of plant material.  Also a sample of pubic hair and the jury saw a photo of that, sort of a tangle of it.  Now on cross-examination defense attorney Mark Geragos seemed much more interested in focusing in on the other items that were found around the body, specifically a large plastic bag.  Also described is a tarp that had duct tape loosely attached to it and another tangle of duct tape.  Also found three rusted metal items. 

Now it‘s been an interesting process watching the jury as this very graphic evidence is displayed.  At first many of them do appear to flinch and look down and take it all in, but over time, they are able to look.  All 17 of them in court today, the jurors plus the five alternates taking careful notes even if they weren‘t looking the entire time.  They all made a point of looking at these photographs and making sure that they knew what was included in them.  As you mentioned, though, Sharon Rocha, Laci‘s mother not able to look at the pictures.  In fact she left the courtroom as soon as the judge made it clear that graphic evidence would be included.

Laci‘s brother Brent stayed in court.  He looked straight ahead, didn‘t look at the photo.  Scott did about the same thing, just basically looked straight ahead...

ABRAMS:  Edie...

LAMBERT:  ... and the Peterson family remained in court. 

ABRAMS:  ... quick question about the autopsy.  Did they show the autopsy of the little baby and, if so, did this witness draw any conclusion as to whether this baby was born alive or not? 

LAMBERT:  No mention of Conner so far.  However, the next witness has already been sworn in.  She‘s also from the Contra Costa coroner‘s office, so we may hear more about Conner in the next hour.

ABRAMS:  All right.  Edie Lambert, thanks a lot. 

All right my take on this—this could be the crucial part of the case.  These autopsy photos are gruesome, but this may be the strongest argument the defense has in this case.  It doesn‘t rely on these mysterious transients or these long-shot framing theories.  But the fact that the baby seemed to have tape round around its neck in a way that could support a defense theory that Conner was born alive.  If that is true prosecutors are going to have a hard time getting a conviction. 

Let‘s bring in our legal team—California criminal defense attorney Trent Copeland, former prosecutor Lisa Pinto and in the courtroom again for us today, former San Mateo prosecutor Dean Johnson.

All right, Dean, significance, do you agree with me about the significance of the autopsies that the autopsy photos could be the best evidence the defense has in the case? 

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Well, I think so.  I think you‘re right that the material that‘s wrapped around Conner‘s head is probably the toughest sell that the prosecution is going to have.  If you look at that carefully, it looks like there is a knot that had to be tied by a human being.  The loop seems to be too tight for it to have accidentally slipped over Conner‘s head.  The prosecution has responses to that, that—and I don‘t mean to upset anybody, but that the child‘s head could get larger.  It could swell in the water and that loop could have slipped over accidentally.  It is a very tough sell.  It‘s a very strong piece of evidence for the defense.

ABRAMS:  And I should tell you that we made that graphic representation, you know obviously, we don‘t want to show any autopsy photos, et cetera, but based on the actual photos in this case. 

Lisa Pinto, do you think that this could be the strongest argument for the defense? 

LISA PINTO, FORMER PROSECUTOR:  I totally disagree Dan.  I think we have learned from all the experts that the X-rays of the baby‘s bones show that he was dead when he was expelled in utero.  So I think we have to take -- factor in the ocean currents, all the other factors, the fish feeding on the baby.  These are the things that caused the debris to be wrapped around his neck, plus you throw in swelling and there your theory goes right out the window.  This child was dead...

ABRAMS:  It‘s not my theory...

PINTO:  ... in Laci‘s body. 

ABRAMS:  I mean it‘s not my theory.  I‘m just saying that compared to the rest of the theories the defense has in this case, this is the strongest one they‘ve got.

PINTO:  Well they‘re doing pretty badly here because we‘ve heard about Hawaiian stalkers, brown vans.  Now we‘re up to the sex offenders, 295 of them.  I think they‘re really fishing for nothing and Geragos is losing traction today. 

ABRAMS:  Trent Copeland.

TRENT COPELAND, CRIMINAL DEFENSE ATTORNEY:  Couldn‘t disagree more and I wouldn‘t expect Lisa to say anything short of that.  But you know, Dan, this is clearly the strongest evidence that the defense has.  And I‘ll agree with Lisa in this sense.  You know what?  I wouldn‘t water down—I wouldn‘t dilute this argument, which I think is a critical one, Dan, as you mentioned at the top of the show.

I wouldn‘t water down with the Hawaiians.  I wouldn‘t water down with the sex offenders.  I think Mark Geragos might want to carefully back off of that at this point and allow the jury to focus very carefully and very closely on this evidence.  Remember Dan, as you pointed out and as Dean has accurately indicated, that was—that material wrapped around the baby, that material was not found as debris in any other area on the beach.  That material was wrapped around the baby‘s neck in such a way that it only allowed for two sonometers of space left around that baby‘s neck.  And the reality is it would be virtually impossible for in a way, other than human hands, to have put that around that baby‘s neck...

ABRAMS:  Trent, but then why...

COPELAND:  ... other than that.

ABRAMS:  ... why has Mark Geragos then been spending so much time on these other theories because I think that you know this is a scientific debate and you‘re going to have a battle of the experts here and look, if that baby was born alive I think that most people would agree that the prosecutors are going to have an impossible time getting a conviction.  With that said...

(CROSSTALK)

ABRAMS:  With that said, the problem is that Geragos loses credibility I think to a certain degree by suggesting that these sort of, you know, these Pacific Islanders may have done it and these transients who weren‘t questioned and all of these other things, which to me just sound like just typical defense attorney nonsense. 

COPELAND:  Well you know I think you‘re right Dan and I think at some point he will have to make the tactical decision as to when he‘s going to reverse course on that and I think that the time is now.  I think this is a critical juncture...

PINTO:  But Trent...

COPELAND:  The reality is that this is the strongest piece of evidence...

(CROSSTALK)

COPELAND:  ... and I think what he‘ll do is he will back away from that...

ABRAMS:  Dean...

(CROSSTALK)

ABRAMS:  ... I don‘t think he‘s going to do it Dean.  I don‘t think he‘s backing away from anything. 

JOHNSON:  I don‘t think so either.  I think this is the one major flaw I see in the defense, which is otherwise doing a very good job, is that they really have undermined credibility.  When we went through those lists of sex registrants the other day and all of these people were suggested as potential killers, many of the jurors were starting to roll their eyes.  But this is—make no mistake about it, this autopsy and the surrounding evidence are very strong evidence for the defense if they can come up with a good, coherent theory.  There is debris, which was pointed out by the defense today, all around Laci‘s body, which is consistent with construction debris from a nearby bridge.  One theory floated by the defense is that possibly those bodies, if not deposited by Scott Peterson, were thrown off of those bridges.  That‘s the beginning of a coherent theory...

(CROSSTALK)

ABRAMS:  But that to me is not coherent.  I‘ll give Lisa the final word.  But that‘s not coherent to me because then you have to explain, what, they let the bodies decompose somewhere else and then threw them off the bridge?

PINTO:  Yes Dan...

(CROSSTALK)

PINTO:  ... Geragos lost...

JOHNSON:  That is...

PINTO:  ... traction and credibility...

JOHNSON:  ... that is the big problem with that theory.

ABRAMS:  Go ahead Lisa, Lisa.

PINTO:  Dean, he lost traction and credibility today with his whole mailbox fiasco.  He tried to imply in cross-examination that Scott had leased that mailbox for Trade Corp (ph), not for his own personal use, for correspondence with his mistress, but for his business because his checks were missing.  He wasn‘t getting his company records.  He was losing checks.  Well, we come to find out in fact he rented that mailbox December 22, a month before...

ABRAMS:  We‘re getting to that in the next block...

PINTO:  ... so he lost...

ABRAMS:  Lisa...

PINTO:  ... kudos in front of the jury.

ABRAMS:  ... I‘m going to let you make that point coming up in a minute because that‘s what we are going to discuss in a minute.  Trent, Lisa and Dean stick around.

Coming up—the prosecution has already called a lot of witnesses to focus on seemingly minor details in the case.  We‘re also going to ask is the testimony too detailed for the jury?  Are they losing the jurors?

And the search for a missing pregnant woman—she was last seen in a Salt Lake City park getting ready to go jogging.  We will talk to one of the detectives leading the search. 

Later, the D.A. in the Michael Jackson case is so upset with the media attention he now admits he‘s sending out letters to people telling them they might be called as witnesses so they can‘t talk to the reporters.  Is that prosecutorial misconduct? 

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, more detailed testimony about what police found investigating Laci Peterson‘s disappearance, but is it too much for the jury to follow?  Could all the details backfire on the prosecution? 

(COMMERCIAL BREAK)

ABRAMS:  We‘re back talking about the Laci Peterson case.  There have been a whole slew of witnesses who have been testifying.  Some of them to minor points.  Some of them not so minor.  We just talked about the latest testimony.  Before that, some of the witnesses testified, Detective David Hawn, for example, said that while searching the Peterson home in February 2003 he found a small piece of concrete in the dining room, but then admitted on cross-examination the envelope holding the evidence is marked living room.  The defense again attacking the quality of the police investigation. 

Then there was Veronica Holmes.  She was in charge of compiling a list of sex offenders and parolees in the Modesto area.  She also photographed the demonstration of a woman for the prosecution used to show that Laci could have fit into her husband‘s toolbox and boat without being noticed.  Again—and then before lunch, Dr. George Hrusa, he analyzed a blade of grass saying it was very common in California.  The significance of his testimony unclear at this time.

All right.  Lisa Pinto, you wanted to make a point about what you think is some of the most important testimony.  Go ahead. 

PINTO:  Yes.  Geragos essentially lied to the jury today when he suggested on cross-examination that the reason that Scott had leased that mailbox was for Trade Corps because Trade Corps (ph) had been having checks stolen while in fact he leased that box December 22, which was a full month before the checks were stolen.  So he actually in essence lied to the jury. 

He‘s losing traction.  He‘s losing credibility.  He‘s asking sleazy

questions that are immediately—when an objection is made by the

prosecution they‘re sustained.  He‘s being sarcastic.  I don‘t think this

is working.  He is desperate to keep the pliers out.  He is desperate to

keep the concrete out so he does things like attack the chain of evidence,

attack the chain of custody, make this fuss over the envelope.  He‘s really

·         he strikes me as a desperate man on cross today. 

ABRAMS:  And Dean, it sounds like, again, we are hearing from the defense team throwing out other possible theories.  Geragos talking about one person who was interviewed, talking to Detective Hermosa.  She said Asian gang members showed her how to break in mailboxes and supply her with stolen cars to steal mail. 

Hermosa:  Yes.

Check out her alibi for December 24?

No never did that. 

Geragos:  So, her admission she was strung out on meth and hanging out with gang members?

Hermosa:  Correct.

Any traction with that? 

JOHNSON:  No.  I think Lisa is essentially correct.  I think Geragos won some points on the mailbox issue, but I think she‘s essentially correct...

ABRAMS:  Explain to us what the mailbox issue is Dean...

(CROSSTALK)

ABRAMS:  Hey Dean, Dean, can you explain to us what the mailbox issue is?

JOHNSON:  Well, the point that was being made was that Scott Peterson took out this mailbox and the implication being that he wanted to use this mailbox to exchange mail with Amber Frey.  The prosecution showed that in fact Amber Frey had written him one letter at this mailbox address.  But then Geragos was able to bring out on cross-examination oh, gee, well, weren‘t there other letters sent to that address and weren‘t they all business related...

(CROSSTALK)

JOHNSON:  ... and the witness said, well, yes, in fact there were other letters.  And isn‘t it is a fact that the prosecution told you don‘t bring those letters with you.  Just bring the one that was written by Amber Frey.  So yes, it looked bad for the prosecution. 

(CROSSTALK)

ABRAMS:  ... Geragos...

(CROSSTALK)

ABRAMS:  Let me read a quote from Geragos on that issue. 

Geragos:  Some reason to believe that you are going to be responsible for the disappearance of your wife on December 23 that you rent a mailbox for your girlfriend. 

PINTO:  That‘s what I was talking about Dan.  The facetious question that was immediately objectionable and was sustained.  I mean it‘s (UNINTELLIGIBLE) it‘s just skylarking in front of the jury.  It‘s not appropriate. 

ABRAMS:  But you know what...

(CROSSTALK)

ABRAMS:  ... it may not be appropriate as a legal matter.  He then says if you know your wife is going to disappear, why rent a mailbox.  You know it seems like, Trent Copeland, at least it‘s a fair question, I mean even if it‘s objectionable. 

COPELAND:  You know I think that‘s one of those opportunities, Dan, and I think Mark was correct.  I would have said the same thing in open court and I would have expected an objection, but I would have gotten it out there.  I mean it doesn‘t make sense, Lisa, with reference to the viewers who are watching, in fairness.  The reality is that he rented this mailbox, Dan, in Trade Corps.  That was the name of his company.  What‘s worse about this is that the prosecution knew this, the detectives knew this, and they didn‘t even check it out.  Even if they assume or they were suspicious in some way that he‘d rented this mailbox for purposes of covering up the crime or purposes of having correspondence...

PINTO:  Trent...

COPELAND:  ... with his mistress... 

PINTO:  Trent...

COPELAND:  ... they...

(CROSSTALK)

COPELAND:  Lisa, Lisa...

PINTO:  ... what address did he put on his application? 

COPELAND:  Lisa, Lisa, Lisa...

(CROSSTALK)

COPELAND:  ... all that was required...

PINTO:  His home address...

COPELAND:  ... all that was required...

PINTO:  He put his home address.  He put his own name...

COPELAND:  It doesn‘t matter...

PINTO:  ... and he got personal mail.

COPELAND:  It doesn‘t matter...

ABRAMS:  All right, I‘ve got to wrap it up...

COPELAND:  Doesn‘t matter what his home address was.  All that matters...

PINTO:  Sure it does.  It‘s not the company address...

COPELAND:  ... is the detectives...

PINTO:  He had a place of business.

COPELAND:  ... that they didn‘t check up on this...

ABRAMS:  Yes, I don‘t know...

(CROSSTALK)

ABRAMS:  ... they didn‘t check up...

(CROSSTALK)

ABRAMS:  I don‘t know.  They didn‘t check up stuff to me is just—I don‘t—it doesn‘t really...

(CROSSTALK)

ABRAMS:  I‘ve got to wrap it up.

Trent Copeland and Lisa Pinto...

PINTO:  Thank you.

ABRAMS:  ... Dean Johnson, thanks a lot.

Coming up, more than 1,000 volunteers join the search for a missing pregnant woman last seen on Monday at a Salt Lake City park.  We‘ll talk with a detective on the case.

And we now know that Clinton national security advisor Sandy Berger took highly classified documents home with him.  The question—was it a crime and should he be prosecuted?  We‘ll debate.

(COMMERCIAL BREAK)

ABRAMS:  Now to a story about a pregnant woman who has gone missing in Utah.  Lori Kay Hacking jogging in a park near homerun home in Salt Lake City.  She disappeared on Monday.  Her family says the 27-year-old was five weeks pregnant with her first child.  Now more than 1,000 volunteers have turned out to help police in their search.

NBC‘s Leanne Gregg joins us live with the latest from Salt Lake City. 

Hi Leanne.

LEANNE GREGG, NBC NEWS CORRESPONDENT:  Hi Dan.  This is the park where Lori Hacking was last seen jogging on Monday morning.  Her car was found not far away.  The search for her has expanded beyond the city‘s canyons into the surrounding neighborhoods. 

(BEGIN VIDEOTAPE)

GREGG (voice-over):  More than two days have passed since 27-year-old Lori Hacking was seen preparing for her morning run in the City Creek Canyon of Salt Lake City.  Since then the case of the missing pregnant woman has drawn attention from across the country, including busloads of people to help search. 

UNIDENTIFIED MALE:  We need four more people here with this group over here.

UNIDENTIFIED MALE:  You got four?

UNIDENTIFIED MALE:  Right here.

GREGG:  On Tuesday, more than 1,000 volunteers combed the thick brush in the canyon where Hacking was last seen, but they found nothing that police said would lead them to Lori.

DET. DWAYNE BAIRD, SALT LAKE CITY POLICE:  We have had searchers go over this six different times, some of them professional searchers.  Some of those that are volunteers.  We are convinced that she is not in this canyon. 

UNIDENTIFIED MALE:  We are going around with the Lori Hacking search. 

GREGG:  The search is now focused in the downtown area of Salt Lake City as searchers go door-to-door distributing Hacking‘s photo.  Meanwhile, Hacking‘s family continues to hope for the best. 

THELMA SOARES, LORI‘S MOTHER:  We try to look positively and hope that she can be found. 

GREGG:  Salt Lake City police have questioned Hacking‘s husband Mark and other family members and friends about her disappearance.  Detectives said this is routine in any missing person‘s case and they‘ll continue their intense search for any leads into the disappearance of Lori Hacking.

(END VIDEOTAPE)

GREGG:  Now among the volunteers helping with that search are the relatives of Elizabeth Smart.  The teenager was taken from her bed by drifters two years ago.  She had been missing for nine months when she was found with her abductors in a Salt Lake City suburb, then she was reunited with her family.  Lori Hacking works for Wells Fargo and the bank is putting up $10,000 in reward money for information leading to her safe return—Dan. 

ABRAMS:  Leanne Gregg, thanks a lot.  Appreciate it.

Joining me now for more on the search for Lori Hacking is one of the people leading the investigation, Salt Lake City Police Detective Kevin Joiner.  Detective, thanks very much for coming on the program.  Appreciate it. 

All right, is it fair to say at this point that her disappearance is suspicious? 

KEVIN JOINER, SALT LAKE CITY POLICE DETECTIVE:  Yes.  It‘s a missing person, but very suspicious in nature.

ABRAMS:  And have you been questioning people beyond just the obvious, which are the family, which are the friends?  You have also gone and sort of done some investigating with regard to some homeless people and transients, et cetera? 

JOINER:  Correct.  We have talked with some transients in the area.  We‘ve also you know checked into any sex offenders that are in the area as well.  We are not leaving any stone unturned in this and we are looking at every possible angle and anything that it could possibly be that would lead us to her. 

ABRAMS:  Maybe you could clarify something for us.  We were all under the impression that this was a couple that was planning on moving to Chapel Hill, North Carolina, for her husband, Mark Hacking‘s medical school.  That he was going to be attending medical school in North Carolina.  And now officials at the medical school at the University of North Carolina say that he was not registered at the school.  Is that something that you knew of and is that significant? 

JOINER:  That‘s not anything that I‘ve been made aware of.  I just

know what I have been told by the family at this point as far as where he

was enrolled in school.  I‘m sure that that is something that investigators

·         that is one of the leads that they will follow up on. 

ABRAMS:  Where was he enrolled and what did the family tell you about where he was enrolled in school? 

JOINER:  My understanding is that he was enrolled in school in North Carolina. 

ABRAMS:  At the University of North Carolina at Chapel Hill? 

JOINER:  That is my understanding.  Correct.

ABRAMS:  OK.  And anything people can do—I mean I guess we can put up the number where people can call. 

JOINER:  Absolutely.  We are looking for any leads, any tips, anything that would help us locate her.  You can contact the Salt Lake City Police Department at 801-799-3000 or our tip‘s line, which is the same area code and 799-INFO. 

ABRAMS:  And at this time you have got no suspects, right? 

JOINER:  No, we don‘t have any suspects.  We‘re following up on leads. 

We will go with the leads in the direction that the evidence takes us and hopefully we‘re going to be able to reach a successful conclusion on this.

ABRAMS:  Yes.  All right.  Detective, thanks very much.  Appreciate you coming back on the program. 

JOINER:  Absolutely...

ABRAMS:  And again, you know...

JOINER:  ... thank you. 

ABRAMS:  ... it‘s worth repeating.  You know if you have any information about Lori Hacking, please call 801-799-3000 or 801-799-4636.  And again, you can find out more information about this at www.findlori.com.

Coming up—Santa Barbara District Attorney Tom Sneddon has been accused of having a vendetta against Michael Jackson.  Now he admits he‘s so upset with how the media is covering this story, he‘s telling some people they‘re witnesses in the case to keep them off of TV.  Can he do that?  We talk with the only reporter who heard Sneddon‘s statements.

And former national security advisor Sandy Berger admits taking classified documents home, but should he be prosecuted? 

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, is the D.A. in the Michael Jackson case trying to silence critics by telling them they‘re possible witnesses?  Is that misconduct?  First the headlines.

(NEWS BREAK)

ABRAMS:  We‘re back.  The lead prosecutor in the case against Michael Jackson has been accused of having a vendetta against Jackson.  And it‘s no secret he hasn‘t been a big fan of the media coverage.  But now D.A. Tom Sneddon may be going too far to get the case presented his way.  Robert Matas of the national Canadian newspaper, “The Globe and Mail” attended a closed-door meeting of the National District Attorney‘s Association in Vancouver yesterday.  There Sneddon lashed out at the media and offered some advice on how he‘s kept some people involved in the case from talking to the press. 

According to Matas, Sneddon said—quote—“We sent letters to some people saying we intended to call them as witnesses in order to keep them off TV.  And Sneddon even said, we were able to get some lawyers, if not off, at least more restrained.”

That one you‘re hearing—that last quote you are hearing here for the first time.  Matas wasn‘t able to include it in his article.  Before we talk about whether that is misconduct, reporter Robert Matas who broke the story joins me now from Vancouver.  Mr. Matas, thanks very much for taking the time.  We appreciate it.

ROBERT MATAS, “GLOBE AND MAIL” REPORTER:  Thank you.

ABRAMS:  So put this into context for us.  What was he speaking about when he made these comments?

MATAS:  Well, it was a summer conference for District Attorney‘s Association.  It was a very informal affair.  It was about 200 district attorneys.  They were there in their jeans and shorts and T-shirts.  It was a panel on how to deal with the media in high-profile cases and there were some other prosecutors that were also on the panel and his area for the time that he was allotted was to speak about the Michael Jackson case and how he handled it. 

ABRAMS:  And it seems from the way you wrote the article that even you seemed a little surprised that he was that frank about it.  I think you wrote—after that quote you wrote something like he was quite frank about it or in surprising fashion or something along those lines. 

MATAS:  Yes.  Well, I was there because there was a prosecutor from a Canadian case that was also on the panel.  When I heard his comments, I went back to our office and went through the electronic library and looked for other comments he had said.  He seemed to be saying something he hadn‘t said before—maybe because of the situation that it was a relaxed summer conference. 

ABRAMS:  So it hit you when he said this, wait a second, he‘s admitting that he‘s sending letters to people saying, hey, you are going to be a witness in this case in an effort to keep them off of TV. 

MATAS:  The context in which it came up was he talking about—he started the first time around when—I guess in 1993 when he investigated Michael Jackson.  He said the media was different.  The media always waited for—the mainstream media at that time second sources before they would come out with something.  And now they‘ll just do what they have to do to be first. 

This is his perception, what he was saying.  And then he started talking about defense lawyers and saying defense lawyers were going on TV every night talking about things that, as the prosecutor, he felt he had an ethical responsibility to the case and he couldn‘t respond.  So he modeled this gag order to try and control things and level out the playing field. 

And he said he wanted the gag order to apply not just to the defense lawyers, but to the people that are involved on the defense team.  The witnesses and anyone else who‘s going to comment with inside information, with the evidence, the contents that he wouldn‘t be able to respond to. 

(CROSSTALK)

MATAS:  And that‘s when he came out with this statement that he sent some letters out to some people. 

ABRAMS:  But let‘s be clear.  These letters were sent out to people just so that they would stay off of TV? 

MATAS:  Well, he said the letters were sent out to some people that he intended to call as witnesses to keep them off TV.  I mean that‘s the phrase he used.  And he said, we were able to—he referred to some lawyers.  He said it succeeded in getting some lawyers restrained. 

ABRAMS:  All right.

MATAS:  So...

ABRAMS:  Robert Matas, if you could just stay with us in case we have a couple of questions on this.  I appreciate it. 

My take—if the D.A. is telling anyone that they may be witnesses in an effort to silence them, it seems to me that is misconduct.  Let me bring my panel back here again—criminal defense attorney Trent Copeland, former prosecutor Lisa Pinto. 

Trent, what do you make of this? 

COPELAND:  You know, Dan, if I was playing word association it would be outrage, it would be anger and it would be a whole host of words just like that.  I mean this is outrageous conduct.  And you know Dan it comes from a D.A. who from the very beginning, and the irony is that he would be addressing a group of D.A.s on how to deal with the media when this is the guy who has blundered his way through dealing with the media throughout this entire process.  I‘ve got to tell you, he should probably expect a bouquet of flowers from Michael Jackson—and Mr. Matas, that is—and he should probably also expect an all-expense paid ticket to the county of Santa Barbara because he‘s coming here to talk about this...

ABRAMS:  Yes.

COPELAND:  ... in a closed-door section, I would assume...

PINTO:  Trent...

COPELAND:  ... this is a big deal Dan.

ABRAMS:  Lisa Pinto...

PINTO:  Trent...

ABRAMS:  ... I...

PINTO:  ... you have got to calm down here. 

ABRAMS:  Yes, I don‘t know what Lisa‘s position on this is...

PINTO:  ... he...

ABRAMS:  ...  and I‘d be interested, Lisa just to take a step back for a minute and evaluate this as prosecutor to prosecutor...

PINTO:  Right.

ABRAMS:  ... about what he‘s saying here.

PINTO:  Well I think he—you don‘t know who he intends to call as a witness to start with.  But look, in this post Geragos era that we live in where the defense (UNINTELLIGIBLE) is trying everything on cable news every night, it is a whole new ballgame for those of us on this side. 

ABRAMS:  You can tell them they‘re witnesses?

PINTO:  Well maybe some of them were.  We do not know.  But what is certainly appropriate is for him to play his cards close to his chest, prevent potential witnesses from being in any way tainted, for example, by tabloid money or having their—having been harassed, as we saw in the Kobe Bryant case, this woman doesn‘t even want to go forward because she‘s been so badgered and harassed by a hostile media...

COPELAND:  Lisa, Lisa...

PINTO:  ... and I think these are appropriate steps...

COPELAND:  Lisa...

PINTO:  ... to protect the integrity of the case...

COPELAND:  Lisa...

PINTO:  ... and represent the people of the state of California.

PINTO:  Lisa, you are stretching it.  It‘s called an abuse of process.  There is a real remedy for this, Dan, and this isn‘t some novel thing.  I mean you cannot engage in a judicial act, and this is a judicial act, sending subpoenas out without a good-faith basis to...

ABRAMS:  Well that‘s the question...

PINTO:  Trent, you don‘t know...

(CROSSTALK)

ABRAMS:  But that‘s what I‘m not...

(CROSSTALK)

ABRAMS:  Let me go to Mr. Matas on this.  Mr. Matas, it is sort of ambiguous, is it not, as to whether he was suggesting that these people would not have been witnesses otherwise, correct? 

MATAS:  Well he didn‘t elaborate.  So I suppose it could be read either way. 

ABRAMS:  And I should say this is the response we got from his spokespeople because we called them to find out what it was he meant by that.  We were hoping for some clarification.  This is the response we got. 

Being a prosecutor is a tough job, especially in a very high profile case.  Because of the gag order, none of us can respond to untruths and innuendoes swirling around.  This is bound to be frustrating to the media, but as a public relations agency we understand this and try to impart as much information as we can under the circumstances.

You know, it doesn‘t sound to me, Lisa, like they‘re saying Mr. Matas got it wrong. 

PINTO:  Well first of all, this was a casual gathering of prosecutors.  If they knew a reporter was present, he spoke off the cuff.  I would conjecture that possibly some of the attorneys involved were possible rebuttal witnesses.  Maybe they knew something...

ABRAMS:  I hope so. 

PINTO:  ... about Geragos‘ behavior or about Michael Jackson‘s...

ABRAMS:  Yes.

PINTO:  ... legal actions and in some way he needed to protect them...

ABRAMS:  Well...

PINTO:  ... and shield them from the wrath...

ABRAMS:  All right.  I hope so.  Because if he is speaking to prosecutors he should be a lot clearer than that about exactly what he meant.  There weren‘t supposed to be—you know they didn‘t even know reporters were there.  Mr. Matas did some good journalistic work getting this information out.  But I can tell you he was the only one there in terms of journalists, so we‘re not going to get to talk to anyone else about what was said or wasn‘t said.  Apparently, the D.A. doesn‘t want to clarify this.  But I think this is serious stuff if he was sending out any letters to people just to keep them off TV.

All right, Robert Matas, Lisa Pinto and Trent Copeland, thanks very much.

PINTO:  Thank you. 

MATAS:  Thank you. 

ABRAMS:  Coming up—a lot of e-mails last night on the Sandy Berger investigation.  Tonight we ask should he be prosecuted for taking copies of those classified documents home?  Stay with us.

(COMMERCIAL BREAK)

ABRAMS:  Former national security advisor Sandy Berger insists he made a—quote—“honest mistake” when he took classified documents on terrorism from the National Archives.  Some Republican leaders are suggesting Berger may have been neither honest nor mistaken in his actions.  In preparation for the 9/11 Commission, Berger took drafts of memos by counter terrorism chief Richard Clarke that advised the Clinton White House on how to take on al Qaeda.

House Speaker Dennis Hastert has suggested Berger pilfered sensitive secrets to hide information that could have embarrassed the administration he served.  And House majority leader Tom DeLay says what Berger did could be a national security crisis.  However, Berger‘s attorney, Lanny Breuer insists those comments are completely out of line. 

(BEGIN VIDEO CLIP)

LANNY BREUER, SANDY BERGER‘S ATTORNEY:  This is a memo that‘s widely known within the national security environment.  The 9/11 Commission has access to it.  People have written about it.  Any notion that this document that was inadvertently taken was taken for some purpose is “A” false and secondly it‘s shameful in my view. 

(END VIDEO CLIP)

ABRAMS:  The House Government Reform Committee says it plans to investigate Berger.  CBS News has reported that law enforcement sources don‘t think Berger will be indicted. 

My take—this was misconduct.  These are highly classified documents and what Sandy Berger did was arguably criminal.  However, prosecutors should use discretion and not prosecute so long as there was no intent on his part to steal the documents or pass them on to third parties.

My guests have their own takes on this.  Sean Maloney, a former Clinton senior advisor who worked closely with Sandy Berger and is now an attorney in private practice.  Solomon Wisenberg is a former federal prosecutor who served as a deputy independent counsel to Ken Starr during the Whitewater investigation.

Gentlemen, thanks very much for coming on the program.  Appreciate it.  All right, Mr. Wisenberg, let me start with you.  Do you think that he should be prosecuted?

SOLOMON WISENBERG, FORMER FEDERAL PROSECUTOR:  Well he should only be prosecuted if there is a readily provable crime and as you said, Dan, if it‘s something that‘s a technicality and the prosecutor‘s discretion, he or she shouldn‘t.  But the idea that just because he‘s Sandy Berger it shouldn‘t be fully investigated I think is preposterous. 

ABRAMS:  Well Sean, let me read you from one of the applicable laws here.  Title 18, Section 793 - Whoever being entrusted with or having lawful possession or control of any document through gross negligence permits the same to be removed from its proper place of custody or having knowledge of the same being removed from its proper place of custody shall be fined or imprisoned not more than 10 years or both.

SEAN MALONEY, FORMER CLINTON SENIOR ADVISOR:  Right Dan, but I don‘t

think you will find anybody who would say that this is going to be a gross

negligence standard or that any purpose would be served by prosecuting

Sandy Berger in this case.  I mean the allegations that have been swirling

around that make this sound more serious than it is are intended to think -

·         make you think that something prosecutable could be found here, but there really is nothing there. 

And so what you find is you find the House Republicans playing the “if” game.  You know if he passed it to the Kerry campaign, if he did something else with it and that‘s just an old game in Washington.  You know if Sandy Berger punched an old lady on the way out of the archives that would be a serious thing too, but there is no evidence that he did that or that he passed this information to anybody and I don‘t think you‘d need a gross negligence standard here.  And clearly the Justice Department has been hanging on to this thing for almost a year.  If they had anything I think they would have done something with it before now. 

ABRAMS:  Mr. Wisenberg.

WISENBERG:  We don‘t know that there is no evidence.  The Department of Justice hasn‘t gone on the record.  But one thing that I think people haven‘t focused on is the fact that Mr. Berger and his attorney admit that he intentionally took his notes out, which is a violation of National Archives regulations.  So a key point will be what was in those notes because he returned them when they were demanded. 

This is a very serious thing.  When you are looking at classified documents, they want to be sure that you‘re not taking notes of those documents and he agreed when he went in there to show the notes before he left so that they could check them.  And instead, he apparently intentionally took them out.  Those notes, if they are basically verbatim recitations of what‘s in the classified material can be considered classified documents.  But how anybody could say based on what we know that there is no evidence or there is enough evidence at this point really is beyond me. 

ABRAMS:  Sean, are you saying that they should basically drop the investigation? 

MALONEY:  Well I‘m saying that I‘m not sure where it goes.  I think the timing of this leak is very suspicious.  I don‘t think they have much of anything except Sandy made an honest mistake.  He‘s done the right thing every step of the way.  He went in.  He...

ABRAMS:  How do you make a mistake like this?  I mean you‘ve indicated you‘ve been—you‘ve had access to some of this same kind of material when you were in the administration. 

MALONEY:  Absolutely.

ABRAMS:  How do you make this kind of mistake? 

MALONEY:  Look, anybody who‘s worked with Sandy Berger knows that he‘s brilliant.  He‘s totally committed to protecting us and this country.  And he‘s also not the neatest guy in the world.  This is a guy with a sloppy desk.  As I understand it, he reviewed literally thousands of pages of documents to be in service to the 9/11 commission, and it‘s just very easy for me to believe as someone who worked with Sandy a lot that he could mix up some of the copies of these documents with his own papers. 

Now it‘s worth repeating that none of these things were withheld from the commission.  The originals are in the possession of the National Archives.  So if we‘re talking about violating procedures of the National Archives, we‘re not talking about any violation of section—or Title VIII, the section you cited Dan.  We‘re talking about the procedures of the National Archives.  You know I mean that for somebody who‘s worked in the government is the equivalent of prosecuting somebody for tearing the tags off their mattresses.  I mean these are serious matters because these are serious classified documents.  Codeword documents are serious.  Sandy as said as much.  He‘s cooperating fully...

ABRAMS:  Mr. Wisenberg, Sean makes it sound like it‘s the equivalent of leaving the library without checking out the book. 

WISENBERG:  Well if those notes said you know wife says to go pick up a corn beef sandwich from Krupen‘s (ph) tonight then it would be.  But if he is basically writing down classified materials and leaving with them, it very well could be, doesn‘t mean it has to be, a violation of the penal code.  And don‘t forget, we have—with respect to those—the after action reports on the millennium, there are two of those that are missing.  And it‘s not that the committee received them, it‘s that they have information in them, which could be extremely damaging, apparently, to people who have cooperated with us.  That‘s why it‘s important that you not be grossly negligent. 

(CROSSTALK)

MALONEY:  I think it‘s important that we be precise though.  I don‘t think there would be any violation of the penal code for writing down notes.  I think there‘s procedures for that and I think the issue of removing your own notes is an issue of the procedures of the archives not of the penal code.  And Sandy Berger...

WISENBERG:  That‘s wrong.

MALONEY:  ... as you point out, is an authorized person.  This is not

·         there‘s no allegation he disclosed it to any unauthorized person.  He had a valid...

ABRAMS:  Mr. Wisenberg...

MALONEY:  ... reason for taking these notes. 

ABRAMS:  ... you say that‘s wrong.  Quickly.

WISENBERG:  Well he‘s not authorized—if they have got classified information in them they become national defense documents and he‘s not authorized to take them out of that room. 

ABRAMS:  Mr. Wisenberg, very quickly...

(CROSSTALK)

ABRAMS:  ... do you think he‘ll be do you think he will be indicted in this case?  I think he won‘t be indicted, right? 

WISENBERG:  I think it‘ll have to be very strong evidence...

ABRAMS:  Yes.

WISENBERG:  ... to indict him. 

MALONEY:  You know Dan...

ABRAMS:  I‘ve got to wrap it.  Five seconds if you want to say it Sean.

MALONEY:  I was going to say, I mean you know this Justice Department, who knows?  I mean you know...

ABRAMS:  All right...

MALONEY:  ... leave it to John Ashcroft. 

ABRAMS:  Sean Maloney and Solomon Wisenberg, thanks very much for coming on the program.  Appreciate it.

Coming up at 9:00 p.m. Eastern a special edition of “HARDBALL” with Chris Matthews, “The 12 Missed Chances That Could Have Prevented 9/11”.  That‘s tonight at 9:00 p.m. Eastern Time right here on MSNBC.

Coming up, the downright insulting and I would argue un-American request from about a dozen Democratic members of Congress who‘ve asked the U.N. to monitor the U.S. elections in November.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, why I say it‘s un-American for more than a dozen Democratic members of Congress to ask the U.N. to monitor the American presidential elections.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—the downright insulting and I would argue un-American request from about a dozen Democratic members of Congress who have asked the U.N. to monitor the U.S. elections in November.  They argue that the—quote—“deeply troubling events of the 2000 election dictate that international election monitors step in.” 

This is not just partisan politics at its worst, but an effort to embarrass the nation in the eyes of the world.  No matter what you think about the outcome of the 2000 election, and I was very critical of the U.S.  Supreme Court ruling as a matter of law, it was still so reassuring to see that our system worked.  There was no anarchy, no concern that there would be a revolution, and yet these rogue Congress people act as if the U.N.  could somehow help our fledgling nation conduct an election.

That doesn‘t mean our system doesn‘t need work.  We don‘t need the U.N. In the past 10 years these U.N. monitors have been used in Tanzania, Armenia, Azerbaijan, Sierra Leone, Mali, Nigeria, Figi.  Oh yes, they were called in those cases to remedy problems with pregnant versus hanging chads on punch card ballots. 

These Congress people knew Secretary-General Kofi Annan would reject their request, only in part, because they have no right to ask the U.N. to do anything.  So they‘re now asking Secretary of State Powell to make the request on behalf of the U.S.  And of course he is going to ignore this nonsense, but it‘s beyond partisan.  It‘s a slap in the face of the nation.  A few days ago I bemoaned the fact that lawyers for both parties have invaded every county to begin—quote—“legalizing this election”, to battle over voting machines, poll times, et cetera.  What a shame that we may have to wait for election results until after the legal battles are over. 

But they‘re working within our system of law.  We may need to make changes, but we don‘t need the U.N. to make them for us.  And these Congress people should be ashamed for even making the request. 

I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night in my “Closing Argument” Michael Jackson‘s defense team and their argument to keep almost all of the details of the case secret, saying the public and their press are better informed than they are in most cases.  I said there‘s never been another case where the public has been less informed and the people of the state of California have the right to know more about what led their prosecutors to file this case.  

Angelina Weaver in Tennessee.  “I‘m starting to notice a trend in the media blaming Jackson‘s lawyer for the secrecy in the case.  To my understanding, it was the prosecution that started the secrecy and gag order.” 

And Julianne Greene, “It‘s the prosecution who requested this gag order in the first place.  No one has called them out on that.”

OK, you‘re right.  As is evidenced by the Jackson segment we did tonight, I should have pointed out that the prosecutors asked for it initially.  But the defense arguments were particularly self-righteous and disingenuous in that motion. 

Also last night Boston and New York City preparing for the upcoming political conventions by trying to improve security at events including random searches of bags.  This after there had been some intelligence that there could be an attack at the conventions.  I said the searches helped reduce the threat of another attack and that it‘s a minor intrusion. 

The New York Civil Liberties Union disagreed with me.  Murrell Thomas in Virginia—quote—“Another attack says who?  If you believe our government or Homeland Security knows when the terrorists will attack, if they will attack and how, you‘re as big an idiot as they are.”

OK, Murrell, it‘s good to know that you have the real inside scoop on the Intel.  Keep us updated.  Let me know when there is a real threat, OK? 

Former President Clinton‘s national security advisor Sandy Berger under investigation for removing top-secret documents from the National Archives in Washington.  I said I don‘t know why we are finding out about this serious investigation month after it started, but that it is serious. 

Billy Cooper from North Augusta, South Carolina.  “I‘m a Republican but what I don‘t understand is how this Berger incident happened in October 2003 and wasn‘t near as important then as it is now.  Why was it not brought up then?”

From Fort Myers, Florida, Rickey Ammons.  “Thanks for taking the Sandy Berger story seriously.  The story is important and to say move on does a great disservice to our country.”

From Dayton, Ohio, Raymond Payne.  “If archive personnel saw Mr.  Berger placing notes in his jacket, pants and socks, why didn‘t they stop him on the spot?  Is it not their duty to do so?”

Finally, Lorraine Stark asks, “Are you related to a Mrs. Abrams that taught math in Pine Tree Elementary School in Monroe, New York around 1979-83?  I‘m not quite sure about those dates, but it‘s close.”

No, I‘m not. 

Your e-mails, abramsreport—one word -- @msnbc.com.  We go through them at the end of the show.

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

See you tomorrow.

END   

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