updated 8/3/2004 9:55:31 AM ET 2004-08-03T13:55:31

Guest: Bob Windrem, Bill Daly, Bill Vorlicek, Larry Johnson, Jennifer Dobner, Erik Luna, Rikki Klieman, Paul Pfingst

DAN ABRAMS, HOST:  Coming up, two weeks after Lori Hacking was reported missing, Salt Lake City police arrest her husband and charged him with aggravated murder. 

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE:  We focused on him the very first day. 

ABRAMS (voice-over):  Police say they know his motive, how he killed his wife, where her body is likely located and that Lori knew her husband had been lying to her. 

Plus, prosecutors in the Scott Peterson trial focus on his finances, trying to prove that money was part of Peterson‘s motive for killing his wife Laci.

And for the first time the government warns of a terror attack with specifics naming financial institutions and warning of an attack in the near term. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, information developed after recent raids in Pakistan show that al Qaeda operatives here in the U.S. have been spying on five key financial centers that could be targeted for attacks Homeland Security Director Tom Ridge told the “Today” show.

(BEGIN VIDEO CLIP)

TOM RIDGE, HOMELAND SECURITY SECRETARY:  No one that had been dealing with this issue has ever underestimated the—our enemy, but I think what it does reveal to America is the sophistication and the degree of complexity and the resolve that our enemies have. 

(END VIDEO CLIP)

ABRAMS:  The buildings al Qaeda apparently had under surveillance include the New York headquarters of the CitiCorp group, the New York Stock Exchange in the heart of Wall Street, across the Hudson River from Manhattan, the headquarters of Prudential Financial and two international institutions in Washington, D.C.  The headquarters of the World Bank and the International Monetary Funds. 

So, exactly how did authorities find this information?  How reliable is it?  And are there any updates in the past 24 hours?  I‘m joined now by the man everyone at NBC turns to with these very questions, investigative producer Bob Windrem. 

Bob, thanks for coming on the program.

BOB WINDREM, NBC INVESTIGATIVE PRODUCER:  It‘s good to be here.

ABRAMS:  Let me start with reliability.  We‘ve heard about warning after warning and it seems many of them have been based on insufficient or faulty information.  Is this different? 

WINDREM:  This is different in the level of detail.  It‘s different in the level of sophistication of the surveillance that the document or the documentary evidence portrays.  And it‘s not just the word documents off a laptop.  It‘s photographs.  It‘s schematics.  And in that, U.S. officials say they find the greatest confidence that this is more real than other warnings that they have put out, that the intelligence is more credible.  We all know as reporters that the more information we get, the more detailed, the more likely we‘re to regard something as credible and that‘s essentially what‘s going on here. 

ABRAMS:  But surveillance is one thing.  The plotting of an attack is something else.  Is there anything to indicate a link between those two?

WINDREM:  Not right now.  I mean what I was told yesterday was that the interest they believe is an indicator of intent and that‘s as far as it goes.  In terms of timing, there is—it is unclear as to timing whether an attack would take place, when it would take place.  What has driven most of this alert is the interest, the level of interest, the details, the sophistication, which indicates intent.  And that is essentially enough for the homeland security and the intelligence community to move this forward. 

ABRAMS:  Do we expect them to learn more such that they could then sort of bring down the alert?  I mean OK, so this information is out there.  They found it.  Is there anything that could convince them at this point, well, you know what?  The warning is out there, apparently, nothing is imminent. 

WINDREM:  Historically what you see is if al Qaeda loses the element of surprise, it drops back.  It either drops back to reconfigure the plans or it simply dismisses the plans.  There‘s a footnote in the 9/11 report, which lays out how Khalid Sheikh Mohammed, the mastermind of September 11, told CIA interrogators that if he had known that Zacarias Moussaoui had been arrested on August 16, he would have almost certainly shut down the September 11 plot.  So that‘s another reason why this is out there, to let the terrorists know that their element surprise is lost.  So I think you‘ll see monitoring of various al Qaeda communications and other al Qaeda activities to determine if this is in fact the case here as well. 

ABRAMS:  Bob Windrem, thanks very much.  Appreciate it.

WINDREM:  Thank you Dan.

ABRAMS:  All right.  My take on this—most of the security measures we see come from law enforcement.  But while law enforcement tell us that the public‘s help could thwart a terror attack and the public hopes law enforcement would be able to protect us, I would predict if there‘s going to be some sort of effort to attack a financial institution, the most likely person to help stop it would be the private security personnel that work for the company.  They know the buildings.  They know the personnel.

So joining me now, retired Army colonel Bill Vorlicek, who is now the vice president of emergency management for Kroll, a corporate security company that provides training crisis and emergency management and deals with everything from travelers to cases where executives may be kidnapped and Bill Daly, vice president of Control Risks Group.  He formerly managed worldwide security operations for Merrill Lynch.

All right, Bill, let me ask you this.  If you‘re still working for Merrill lynch and you hear that Merrill Lynch is a possible target, what do you do?  Bill Daly...

(CROSSTALK)

ABRAMS:  ... sorry, you‘re both Bill.  Bill Daly.

BILL DALY, CONTROL RISKS GROUP:  Well first of all Dan, what you have to do is you have to have plans that are in place way ahead of any type of alert of being notified that you are going to be a target.  I mean Citibank and Prudential yesterday you know didn‘t just decided to do things on a Sunday afternoon in August.  They had plans in place.

The key thing to do is to have (UNINTELLIGIBLE) decisions on crisis, respond to those emergencies, interface with local law enforcement, as well as any of the national resources available to be able to better protect your facility.  It‘s not to say that at the end of the day that your plan may deal with—have everything covered to a finite degree, but you do have a plan—a process in place to be able to synthesize the information and communicate to your employees...

ABRAMS:  Bill...

DALY:  ... what your intent is.

ABRAMS:  Bill Vorlicek, do you agree with me that you know we talk a lot about law enforcement, we talk a lot about the public.  We don‘t talk a lot about the private security personnel who work at some of these major institutions.  When I say that I think that if something‘s going to be thwarted, it‘s more likely going to come from someone like that who knows the building so well. 

COL. BILL VORLICEK, U.S. ARMY, (RET.):  You hit it right on the head.  The—Secretary Ridge has talked about a partnership between the public sector and the private sector and you‘re exactly right.  That security guard, that maintenance person, that person in the building knows the building.  They know what‘s normal.  They know what‘s out of the ordinary.  They‘re the ones that are going to say gee, that doesn‘t look right.  Then they‘re going to follow that saying, if you see something, say something.

ABRAMS:  You know and Bill Daly, you can say all you want, yes, we were prepared.  Yes, you know we‘re ready for something like this.  No, something like this doesn‘t change it.  Sure, that gives off the impression of safety and security, but the reality is you get a warning like this and there is no question in my mind that these particular buildings, these particular companies are doing something differently today than they did yesterday.  Now, I don‘t want to know the specifics because I don‘t want to help out the terrorists in terms of figuring out exactly what they‘re doing, but give us a general sense of the difference in the mentality today.  If it‘s your company, one of five or something, that‘s been announced as a possible target. 

DALY:  Well first off Dan, apart from what‘s being done by the New York City Police Department and the police departments over in Newark, what the private security, what the company is going to be is they‘re going to be looking at everything from who‘s working there.  Is it possible that employees, you know could have been either co-opted and provided information.  Is it possible that somebody could have tried to get—access his employment to try to get information about the company? 

Who‘s made attempts on penetrating the outside?  You‘d want to change around your security.  One of the observations made by—alleged observations we‘ve heard was that they watched a number of pedestrians.  They watch security and what it looked like during different hours.  Not to be predictable is probably one of the key things that you‘d want to walk away (UNINTELLIGIBLE).

ABRAMS:  And Bill Vorlicek, will this change, do you think, the way all major companies in major cities are dealing with security?  I guess maybe I shouldn‘t say change, but I guess I should say double-check all of their operations.

VORLICEK:  What they‘re doing is they‘re focusing their efforts and that was the complaints that business had is that with the homeland security advisory system it was so vague and so general.  What they‘re doing now is they were able to say if we‘re going to go from one level up or one level down, what instances are we going to put in place?  Are we going to open all the doors?  Are we going to close all the doors?  Are we going to leave the garage doors opened?  Are we going to check the vehicles?  Are we going to let the people not come in today, change the security routes?  Those are what they‘re doing today. 

ABRAMS:  All right, Bill Vorlicek and Bill Daly, thanks a lot. 

Appreciate it.

DALY:  Thank you Dan.

ABRAMS:  When we come back, the government says it knows where al Qaeda‘s been conducting surveillance, but doesn‘t know whether an attack is imminent.  So should they have even raised the threat level and made the announcement?  We‘ll debate.

Later, two weeks after Lori Hacking disappeared, Utah police arrest her husband, charge him with aggravated murder. 

And prosecutors in the Scott Peterson trial focus on the money, trying to show Peterson killed his wife for cash.  It‘s a theory you heard first right here on the program about justice.

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, the government raises the threat level for five financial institutions to orange, but some still say the warnings just don‘t any good.  Are they right?

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  Our attitude is try to be as transparent as possible with the affected sites so that people can take responses necessary to better protect the people and it‘s serious business.  I mean we wouldn‘t be, you know, contacting authorities at the local level unless something was real. 

(END VIDEO CLIP)

ABRAMS:  President Bush in the Rose Garden today explaining why the administration decided to go public with the latest threat information.  Some complaining that it‘s a political announcement.  Others saying it‘s just bad law enforcement.  My take—with so many specifics about location, I think it would have been negligent for the government not to tell the public regardless of whether the attacks could happen in weeks or months or never. 

Joining me is terrorism expert and MSNBC analyst Steve Emerson and former CIA officer and former deputy director of the State Department‘s office of counterterrorism Larry Johnson. 

(CROSSTALK)

ABRAMS:  Larry, let me start with you.  You disagree with me on that one? 

LARRY JOHNSON, COUNTERTERRORISM EXPERT:  Yes, I do.  I think we used to have a policy that if you had specific credible information and you could not prevent the attack and there was a likelihood of casualties or significant damage, then you‘d alert people.  But otherwise, I prefer that we keep  our cards to our vest.  I mean this is in many respects like playing poker only  there‘s actually a deadly side to it.

ABRAMS:  What about the point Bob Windrem was just making earlier which was that you know very often if al Qaeda  believes that the surprise has been prevented, they‘ll pull out, and if they pull out and stop, provides us more time to maybe catch them?  

JOHNSON:  Well I think there‘s an element of alert that you want to let them know  that we‘ve captured somebody, but not go into the details.   Because how do we know that we have all of the plans that they‘ve put together, for example, to target places?  Now we‘ve given them a list of what we know.  And in the past we‘ve seen that when they confront security measures, they divert to soft targets.

ABRAMS:  Steve Emerson, what do you make of that?

STEVE EMERSON, TERRORISM EXPERT:  Well listen, Dan, I need to  disagree with my friend Larry because I think one of the lessons we‘ve learned over the last 15 years after the Lockerbie bombing, after the other terrorist attacks and especially during the 9/11 hearings is that the public demands accountability and transparency.  If something happens and it‘s found out that the government did not release information to the public, one of the big criticism of the Bush administration at the summer of 2001 that it didn‘t shake the trees, it didn‘t sound the alarm. 

One of the criticisms of the Clinton administration is it didn‘t say we‘re going to war.  So, therefore, I think these are the types of pronouncements that need to be made.  If something happens and it turns out the government had information and didn‘t release it, the public is going to lose confidence...

(CROSSTALK)

EMERSON:  Go ahead.

ABRAMS:  But I think Larry‘s response may be that that‘s a political argument.  That‘s not a sort of law enforcement argument. 

EMERSON:  Well you know in terms of law enforcement, you may be right because frankly, I‘m not so sure that this deters terrorism, but I think we have—there‘s an issue about the public‘s trust and the ability of the government to sort of protect it and to be transparent.  And otherwise, there‘s a conspiracy culture that develops and starts these rumor mongering that basically makes everybody hysterical. 

ABRAMS:  Larry, did I characterize your argument fairly?

JOHNSON:  Yes, you did OK.  Look, I think the problem here is the White House played it safe and I understand the reason they‘re doing it.  They‘re not doing it to be manipulative.  But if they go out and warn and something happens, they can say well see, we told you and if nothing happens they can say well, maybe it prevented it and so everybody feels better.  It‘s really a win-win.  What I‘m talking about has some downside to it because if something happens and you don‘t go out and warn in advance, then the government gets blamed.  But what I‘m insisting on is part of not telling the public is you‘ve got to make sure that the law enforcement and intelligence community are working hand in glove, something that didn‘t happen prior to 9/11. 

ABRAMS:  Steve, tell us a little bit about what you know, about how did they came upon this information.

EMERSON:  Well, based on the background that‘s provided by government and by some of the reports today, it‘s clear that the arrests in Pakistan in the last months or so have been absolutely critical in terms of providing a treasure trove of hard drives, e-mail accounts, computer discs, as well as other types of electronic Internet communications that have provided a road map about what they were doing, when they were doing it and obviously, the types of buildings that they were surveying.  So clearly this—what is really good here, Dan, is that they were able to take that information and move very quickly.  In previous years, they would have sat on it or it would have gotten stuck in the system.  It never would have filtered up to the level that it did right now in the last 36 hours.

ABRAMS:  See you know, Larry, while I think this is something that they had to do, I guess my concern is the cry wolf concern. 

(CROSSTALK)

ABRAMS:  We‘ve heard that many times before.  But it‘s a question everyone‘s going to ask is why is this different?  Why is this different and then if nothing happens, well, people ignore it again.  But let me ask it to you this way.  Is it so bad if the information‘s out there and the government can say look we told you and most of the public ignores it.  Is that a big problem? Let‘s say law enforcement doesn‘t ignore it, but the public does and they go on with their lives.  What‘s wrong with that? 

JOHNSON:  Well Dan, the problem is there are wolves out there and someday we actually may need people to really wake up and pay attention to the wolf at the door.  Unfortunately, the other aspect is to this is if the information—and I don‘t think this occurred in this care, but in previous instances I do—where information is put out by threats that may in fact be fed by the terrorists themselves wanting to test our reaction system, wanting to watch what we do.  And I think the cry wolf, when we talk about it is not saying that the government is lying, it‘s just that if you come out and warn something‘s going to happen and it doesn‘t happen, most people start saying there they go again and will ignore it, when in fact the time will come, we‘ll need people to pay attention.

ABRAMS:  Steve, do you agree with that?

EMERSON:  I think Larry has got a valid point that the terrorists could be using our—basically test our communications to see where we are picking up information, putting this information out.  But in the end, it‘s sort of 51-49 situation.  I think the government has to release this because otherwise, the downside is too great.

ABRAMS:  And finally, Larry, what do you make of the new announcement today from the president adopting some of the 9/11 commission recommendations, some of the most important ones with regard to creating a counterterrorism center, a national intelligence director, et cetera?

JOHNSON:  I read through the transcript of the remarks by Andy Card.  I think unfortunately what they‘re doing is proposing a new level of bureaucracy, only this intelligence director will be subordinate to John Ashcroft and Don Rumsfeld as it‘s currently constituted.  That‘s not going to solve the problem.  That‘s just going to make is worse.

ABRAMS:  Steve.

EMERSON:  Listen, we really don‘t know.  The only question is whether it emboldens those in the field, in the FBI field offices around the country, some of whom are fantastic and are able to collect information better than anybody at headquarters or in Washington.  And I think that‘s really the challenge right now of the 9/11 commission, to get that information from the field level from Phoenix, Tucson, where I‘m in, Arizona, to California, to Boston, all the way up to Washington in a matter of hours.

JOHNSON:  I agree with Steve.

ABRAMS:  Yes.  All right.  Steve Emerson and Larry Johnson, thank you very much.  Appreciate it.

JOHNSON:  Thank you Dan.

EMERSON:  Sure.

ABRAMS:  Coming up, he told police his wife disappeared while she was jogging two weeks ago.  Today, Mark Hacking is under arrest for her murder and police say they know why he did it. 

And prosecutors in the Scott Peterson trial say he didn‘t kill his wife because of an affair, at least not only because of that, but also for money.  It‘s a motive you heard about first here on the program about justice and now we‘re hearing it in court.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  Was money the motive for Scott Peterson to murder his wife?  Well on day 32 of the trial, that‘s what prosecutors are focusing on.  Remember, we were first to tell you about the arrest warrant which reads and I quote—“The motive of that crime is likely linked to Scott‘s failing businesses and financial situation.  In addition to the emotional and financial pressures of becoming a parent, when he lacked any desire to have a child, the expensive desires of his wife including her desire for a new vehicle and home and plan to be a stay-at-home mother likely compounded the situation.”

MSNBC‘s Jennifer London is outside the courthouse.  So Jennifer, are they saying that Scott just didn‘t want to pay for a car and pay for Laci‘s expensive desires or are they talking about insurance?

JENNIFER LONDON, MSNBC CORRESPONDENT:  Well Dan, as we‘ve seen so many times with the prosecution, they‘re not coming out and directly saying anything, but here is what they are saying.

They spent a lot of time today presenting what is Scott Peterson‘s apparent financial problems both professionally and personally.  An auditor with the city of Modesto, Gary Nienhuis, was the first witness to take the stand today and he testified after reviewing the Peterson‘s financial records that the Peterson‘s were spending almost 70 percent on their annual income on debt.  They also had a lot of consumer debt. 

One credit card had a balance of more than $12,000.  And Scott Peterson‘s fertilizing company, Tradecorp, according to Nienhuis, wasn‘t doing much better.  Nienhuis saying that since the company was founded in 2000, it had yet to turn a profit.  Prosecutor Dave Harris asking the witness were they going broke, the referring to Tradecorp.  Nienhuis replied at the end of September 30, 2002 statement for nine months there showed a net operating loss of $136,000.  

However, there were two credit card applications both signed by Scott Peterson.  One application showed that Tradecorp actually had a profit of 150,000 and the other credit card application said that Tradecorp had a profit of $500,000.  So obviously there‘s a discrepancy there.

Now Mark Geragos was not going to leave this alone.  He did launch into a very aggressive cross-examination of this witness.  He put on a big projector screen in the courthouse, one of Scott Peterson‘s credit reports showing that all his credit card debt was paid on time.  He was never delinquent and a lot of the credit cards that he had actually had a zero balance...

ABRAMS:  Jennifer...

LONDON:  ... and then there is...

ABRAMS:  Jennifer...

LONDON:  Yes, Dan...

ABRAMS:  ... let me just interrupt one sec.

LONDON:  Yes.

ABRAMS:  Is what the prosecutors are essentially going to argue that Scott Peterson owed so much money that he could save a little bit of cash by offing his wife? 

LONDON:  They haven‘t come out and said that yet Dan.  What we‘re seeing right now is they appear to be laying the foundation for a money motive, but they have not come out and explicitly said that.  And in terms of Mark Geragos‘ defense, he was pointing out today that remember Laci stood to inherit a lot of money Dan.  She was going to get a family trust.  She was going to receive a lot of money from some jewelry and we were told earlier in the trial by other witnesses that Scott was not entitled to any of that money if something should happen to Laci.  The terms of the inheritance said only Laci or her child would receive this money.  So the prosecution is right now, as I said, laying the foundation for what we believe will be a money motive, but Dan, I think we‘re going to have to wait and see where they go with it.

ABRAMS:  Yes, I don‘t know.  (UNINTELLIGIBLE) another one of those arguments that I think could be dangerous for the prosecutors unless they really link it back to something hard and concrete, so to speak.  Concrete, a big issue in this case.

Jennifer London, thanks very much.

When we come back, Salt Lake City police arrest Mark Hacking, accuse him of killing his wife.  They picked him up in a psychiatric ward.  Could he be setting himself up for an insanity defense?

And your e-mails about our special report on the death penalty.  Many, many of you weighing in about former Illinois Governor George Ryan‘s decision to commute the sentences of everyone on death row. 

Remember to send your e-mails to abramsreport@msnbc.com.  I respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, two weeks after Lori Hacking was reported missing, Salt Lake City police arrest her husband, charge him with aggravated murder.  The question we‘re going to ask is he already planning a mental infirmity defense—first the headlines.

(NEWS BREAK)

(BEGIN VIDEO CLIP)

RICK DINSE, SALT LAKE CITY POLICE CHIEF:  Today as a result of the investigation into the Lori Hacking reported disappearance on July 19 of this year, and with the pending release of Mr. Hacking from the hospital today, detectives of the Salt Lake City Police Department have arrested Mark Hacking for the murder in connection with the disappearance of his wife Lori.

(END VIDEO CLIP)

ABRAMS:  Not a big surprise that they arrested him.  Exactly two weeks after 27-year-old Lori Hacking vanished, her husband now charged with a count of aggravated murder.  Mark Hacking told police his wife never returned home from an early morning jog, but today the Salt Lake City police chief revealed the investigation centered on him from the first day. 

(BEGIN VIDEO CLIP)

DINSE:  The reality is we guessed pretty early on what the results of this were.  We believed very early in the investigation that this was—that she was the victim of a crime and that her husband may very well have been involved.  So we‘ve just been building the case during this timeframe.  The detectives obtained substantial additional evidence from witnesses, from Lori Hacking‘s vehicle, from her apartment and from a trash dumpster nearby the apartment. 

The evidence gathered strongly indicated that Lori was the victim of a homicide and that her husband, Mark Hacking, is the individual responsible.  The last time she was seen was late Sunday night and as far as capital murder charges, that‘s something yet to be discussed.  We know where the homicide happened and we believe it happened in the apartment. 

(END VIDEO CLIP)

ABRAMS:  Chief Dinse also saying he knows what the motive was for the alleged murder and what was used to commit the crime.  He didn‘t want to talk about that with the reporters.  This coming on the heels of the couple‘s family, both sides, releasing a statement over the weekend that read in part—quote—“The families understand that Mark Hacking has provided information that makes it unnecessary for individuals or groups to continue the volunteer search.”

Now this is some strange circumstances in this case.  Mark and Lori Hacking packing up their belongings, moving to North Carolina.  He was going to medical school—well, at least that‘s what he told family and friends.  Turns out he hadn‘t even applied to medical school or even graduated college for that matter.  The night after he reported his wife missing, he was found outside a local motel wearing nothing but a pair of sandals.  He was then checked into a psychiatric ward of a local hospital.

Mark and Lori‘s families have stood together side by side, consoling each other throughout the entire ordeal.  Jennifer Dobner covering the story for “The Deseret Morning News”.  Thanks for joining us again.  We appreciate it.  So now he‘s been arrested.  Are the families still standing together?  

JENNIFER DOBNER, “DESERET MORNING NEWS”:  Well, as far as we know, they are standing together, but as I talk to you now, we‘re about an hour away from a statement being released from Thelma Soares, who is Lori Hacking‘s mother.  I‘m told that the Hacking family will not appear at that news conference and I‘m not sure what we should infer from that. 

ABRAMS:  And tell us a little bit more about this statement from the weekend.  I mean do we know anything else?  It sure sounds like they‘re saying to people look, we know that she‘s not going to be found and if his family is signing on to that statement, it sounds like his family is willing to concede that she‘s dead.  I mean I remember in the Scott Peterson case, you know, the mother of Scott Peterson refused to accept the fact that Laci was dead until they actually found the body. 

DOBNER:  Well, probably no mother would want to believe that her child could do that sort of thing.  The statement over the weekend was a joint statement from Thelma Soares and the Hacking family.  All it said was that Mark had provided information that led them to believe the search should be called off.  We do also know that someone from Mark‘s family, we don‘t know which family member, spoke with police that same night and now here we are two days later with an arrest. 

ABRAMS:  Very quickly, if you could summarize the evidence that you know of that the police have found that led to this arrest. 

DOBNER:  We know there was a knife that had blood and hair samples on it.  We know they took box springs from the house.  We‘re told they took computers, possibly some bedding and we know that there‘s been a search for a mattress or pieces of a mattress.  Whether or not that has been located and collected as evidence still remains unclear, but those are the types of things they‘ve been looking at in order to do forensic testing. 

ABRAMS:  Jennifer Dobner on top of the story from the beginning. 

Thanks very much for coming back on the show.  Appreciate it.

My take—in the old days, Mark Hacking would have been arrested days ago.  But now the police are being forced to wait, concerned about being accused of rushing to judgment, which has become the garden variety defense in so many high-profile criminal trials, although I should say that even the police chief there said we guessed from the beginning it was him.  You know that‘s going to certainly lead to more of that rush to judgment stuff if they pursue that kind of defense.

I‘m joined now by Erik Luna, law professor at the University of Utah. 

Thanks very much Professor for coming on the program.  Appreciate it.

ERIK LUNA, LAW PROFESSOR, UNIVERSITY OF UTAH:  Thank you Dan.

ABRAMS:  So Hacking‘s been charged with aggravated murder.  The authorities won‘t say what is the aggravating factor, but do you think it was because she was pregnant?  

LUNA:  That could be one of the reasons.  Certainly, Utah allows an aggravated homicide, aggravated murder based on killing two or more people.  And in Utah an unborn fetus in any stage of development counts as a human being, so that could be it.  It also could be—we have a category that includes heinous, depraved type action prior to someone‘s death and that could be the rational as well. 

ABRAMS:  And what is the practical difference that he‘s charged with aggravated murder versus just regular murder?  

LUNA:  The practical difference is the death penalty is now on the plate.  And that the alternative is that he will spend the rest of his life in prison.  If it was just simply murder, he could spend up to life, but death would not be an option. 

ABRAMS:  Do you agree with me, Professor that these days these—in these high-profile case, the police have to be so careful about being perceived as rushing to judgment?  That even if they had evidence a week ago to arrest him, they‘d say you know what, we know where he is.  We don‘t need to arrest him now.  Let‘s let him stay in the mental institution for another week just so there‘s the perception out there that we continue the investigation or am I being too cynical?  

LUNA:  No, I think you‘re right, Dan, but I‘m not so sure it‘s a bad thing.  Here in Utah, we had an experience in the Elizabeth Smart case where a man named Richard Ricci was more or less fingered as the kidnapper and potential murderer of Elizabeth Smart, and as it turns out he had nothing to do with that incident.  And so here in Utah, we have reason to be careful and I think it‘s not just a bad practice if you‘re gathering information and gathering forensic evidence, to wait until the...

ABRAMS:  Yes.

LUNA:  ... you have everything together to bring charges. 

ABRAMS:  I guess as long as you know where the guy is and there‘s no worry that he‘s going to flee...

LUNA:  Right.

ABRAMS:  ... I guess you‘re right.  Professor, if you can stick around...

LUNA:  Sure.

ABRAMS:  ... because we‘re going to have a big discussion coming up in the next block about the arrest of Mark Hacking.  One of the questions we‘re going to ask is he already preparing some sort of mental infirmity type defense?  Remember, he was in a mental institution.  Our legal panel is up next.

And kudos to President Bush for adopting one of the 9/11 commission‘s most sweeping recommendations, the creation of a national intelligence director and of a counterterrorism center, but how do we make it non partisan?  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

DINSE:  He is being watched as a possible suicide, yes. 

(END VIDEO CLIP)

ABRAMS:  Mark Hacking out of a psychiatric hospital and now in police custody, arrested for the murder of his 27-year-old wife, Lori.  She‘s apparently five weeks pregnant when her husband reported her missing two weeks ago today.  Police say that they know the motive.  They have what they believe to be the murder weapon. 

The question, did he set himself up for some sort of insanity defense the other week when police found him stark naked outside a local motel?   Let‘s bring in our legal team.  Back with us University of Utah Law Professor Erik Luna, criminal defense attorney Rikki Klieman, author of the book, “Fairy Tales Can Come True: How a Driven Woman Changed Her Destiny” - - I think it‘s just out in paperback now—and former San Diego prosecutor and MSNBC analyst Paul Pfingst. 

OK.  Rikki, let me start with you on this issue of the insanity defense.  The fact is immediately afterwards, he‘s in a—some sort of mental health institution.  Is that something that could be useful in terms of preparing a defense for him?  

RIKKI KLIEMAN, CRIMINAL DEFENSE ATTORNEY:  Of course it‘s useful, Dan.  But boy, you are cynical this evening, I have to say.  We find that he‘s running around naked in sandals—that‘s the only piece of clothing—outside a motel room where he‘s staying the day after he claims that his wife disappeared or whether or not he killed her.  And certainly, the act itself could drive somebody mad.  The real question was, was he mad, under the law?  That is not knowing right from wrong or in some places not conforming his conduct to requirements of law, at the time of the event?  

(CROSSTALK)

KLIEMAN:  And what do you look at?   You look at what he did right after the event. 

ABRAMS:  But why am I cynical in the sense that this is a guy who has been lying about his whole life.  All right, he‘s been claiming he‘s graduated from college, didn‘t happen, claiming he‘s taking classes, wasn‘t happening, claiming he‘s going to medical school in North Carolina, didn‘t happen, claims that his wife was going for a jog.  According to authorities, that apparently wasn‘t happening either.  So, am I really being the one who‘s cynical?  

KLIEMAN:  Well, you may not be being the one who‘s cynical because you give a good argument for the prosecutor because of course everything he did looked like a lie and looked like he was using the lies to get what he wanted and that‘s going to be the prosecution‘s argument.  But we don‘t know what those doctors found or are going to continue to find as he continues to be examined. 

ABRAMS:  Professor Luna, what is the law in the state of Utah when it comes to the insanity—there are two issues.  Let‘s just make it clear for our viewers.  There is incompetence to stand trial, which would mean that he basically—you know he‘s drooling at the defense table and can‘t help his lawyer and that‘s really hard to get.  But then—assuming he understand what‘s going on in the legal proceeding, he could still pursue an insanity defense, which means what in the state of Utah?

LUNA:  Well in Utah, we actually have one of the strictest insanity defenses in the country and it is paired down to I think the constitutional minimum.  You can only raise the defense successfully if it negates the mens rea of the crime.  So...

ABRAMS:  Why don‘t you explain what mens rea is.

LUNA:  Mens rea is the mental state that an individual has or has to have along with the physical conduct.  Together, those form the corpus of the crime.  And though in some states, you can have a much broader understanding of insanity and Ms. Klieman actually laid out some of the tests there.  In Utah, it is paired back to not being able to form the mental state.  So in this case...

ABRAMS:  Yes.

LUNA:  ... not being able to intentionally and knowingly have killed a human being and given all the details that you‘ve been discussing, it‘s going to be pretty difficult for him to make that kind of case. 

ABRAMS:  Paul Pfingst, my guess is this is the kind of case that‘s going to plead and I‘ll tell you why.  Because we see that both sides‘ families are saying this weekend in essence, you can stop searching.  You know we think that it‘s pretty clear that you‘re not going to find her body out there.  That says to me that he is saying something to the family that leads them to be confident to say that.  If that‘s the care, then I would guess that there‘s going to be some sort of plea worked out here. 

PAUL PFINGST, FMR. SAN DIEGO DISTRICT ATTORNEY:   Expect you can‘t plea to the death penalty Dan.  So if he‘s charged with a capital offense, there‘s no possibility of a plea. 

ABRAMS:  You don‘t think—if you‘re the prosecutor and they say look, we‘re going to come to you, we‘re going to tell you exactly how it happened, we‘re going to tell you where the body is, and all we‘re asking is you take the death penalty off the table.  You don‘t do it?  

PFINGST:  Well if I don‘t know where the body is then I‘d put that in play.  But I suspect the police have a good idea of where the body is now.  I can‘t imagine they‘ve gotten this level of statements and don‘t have a clue as to where the body is.  But you‘re right.  If I didn‘t know where the body was and it was important to the family to recover the body, that would be a negotiating point between me and the defendant.  As a matter of fact, I‘ve done that before and I‘ve attempted to make those deals and I‘ve made them on some occasions and have been unable to make them on other occasions. 

ABRAMS:  But why not—let‘s assume for a moment that they do know where the body is, all right...

PFINGST:  Yes.

ABRAMS:  ... and let‘s assume again that the defense attorney comes to you and says look, you know, this guy‘s mental health is deteriorating, we don‘t want to go through a trial, we don‘t want to deal with the insanity defense.  Let‘s just agree to take the death penalty off the table, give him life in prison.  Do you take it?  

PFINGST:  There‘s one other reason why that might not happen Dan—is because a lot of criminal defendants cannot accept a life in prison sentence and they demand to go to trial.  If I‘m a prosecutor under these circumstances, if there is—if it‘s shown that this recent outbreak of mental instability was not convenient for the defendant who‘s not making it up, yes, then I would take a non death case because a jury wouldn‘t be likely to execute somebody like that.  But if it‘s convenient that he‘s making it up, well then it‘s back on the table. 

ABRAMS:  Rikki, how much do the families matter?  I mean...

KLIEMAN:  Oh Dan...

ABRAMS:  ... meaning if the families come together and reach some sort of—they say the prosecutors do X, Y, or Z, how much of an impact?  

KLIEMAN:  Well you just took the words right out of my mouth because I was going to say that to Paul because the families could have a great deal of control in this case if they go to the prosecutor, but it has to be both sides, both families and say look, we really don‘t want this person put to death.  I think that the prosecutor really looks at the families and understands that they are the ones who have suffered here and most likely, though—maybe Paul disagrees with me, but I don‘t think so—most likely when you get that from both sides that you‘ll agree to a plea to life in prison, no parole. 

ABRAMS:  Professor, you know these prosecutors.  Do you have any sense

·         insight for us on what they might do or not do?  

LUNA:  We‘re going to have to wait.  There are a lot of balls in the air, Dan.  It‘s going to—obviously, the families‘ input is going to be important.  The forensics, how that plays out, whether they can find the body.  Supposedly, they have narrowed it to a part of a landfill here in Salt Lake City.  So, once we get some more information...

ABRAMS:  Yes.

LUNA:  ... if they‘re able to find the body in the next week or so, I will have a better idea of whether a plea is even a possibility.

ABRAMS:  All right, Rikki Klieman, 15 seconds, pitch your book for us. 

KLIEMAN:  Oh Dan, you‘re so good.  It‘s about—book of hope and inspiration for men and women who sacrifice too much for success.  If I could change the course of my life at the age of 50, anybody can. 

ABRAMS:  All right, that‘s—Rikki is a good friend of the show.  Of course...

KLIEMAN:  Thank you.

ABRAMS:  ... she gets to pitch her book. 

(CROSSTALK)

ABRAMS:  Erik Luna, Rikki Klieman, and Paul Pfingst, thanks a lot. 

Coming up, lots of e-mails on Friday‘s special edition of the program, “Deadline”, a two-hour documentary on the death penalty and many of you weighing in about our guest, former Illinois Governor George Ryan who commuted the sentences of all 167 death row inmates in the state of Illinois.  We got hundreds of e-mails.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, kudos to President Bush for adopting of the 9/11 commission‘s most sweeping recommendations and yet, is there a way to make the new position non political?  It‘s my “Closing Argument”.

ABRAMS:  My “Closing Argument”—kudos to President Bush for adopting one of the 9/11 commission‘s most sweeping recommendations, the creation of a national intelligence director and of a counterterrorism center.  I would hope there‘s some way, though, to make the position non-partisan.  As horrifying as the warnings themselves is to hear Democrats accuse the current Department of Homeland Security of issuing the warnings for political gain. 

And it would be even more frightening if the Democrats were right.  While Secretary Ridge has committed not to attend any GOP fundraisers or other partisan events and that‘s a good first step, he was still clearly a political appointment.  There has got to be a better way to immunize this new position from politics. 

The same way the highest-level military officials are supposed to be non-political, this job is too important to allow any of the decisions or assessments to be tainted or even to be seen as tainted by politics.  I don‘t believe Secretary Ridge is so corrupted by politics that he would issue terror warnings just to change the discussion of the day.  With ferocious partisan circling on both sides ready to make everything about politics, when it come to terrorism, there has got to be a way to steal their political chum. 

All right, I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  Friday night‘s special edition of the program, after “Dateline NBC” aired a two-hour documentary on the death penalty, the question, can it be administered fairly.  Joining the program was the man at the center of the “Dateline” special, former Illinois Governor George Ryan who commuted the sentences of all 167 death row inmates in the state of Illinois. 

Hundreds of your e-mails on my desk.  Joe Pipich in Pittsburgh.  “I just saw the film and was struck by the fact that it was told almost exclusively from the point of view of the defendant and the civil liberties lawyers.  I‘ve never seen so many obviously guilty convicts portrayed as innocent law-abiding citizens who found themselves in the wrong place at the wrong time and forced to confess.”

From Richmond, Virginia, Bill Smith.  “This was a terribly biased documentary in favor of abolitionists.  Left unmentioned, no individual has been executed who has been posthumously found to be innocent.  Abolitionists have conceded they can‘t name one, so it shows the appeals system works as intended.”

Dee Ann Melland in Gresham, Oregon writes.  “The program only reinforced my feeling that unless there is unequivocal DNA evidence or a multitude of agreeable witnesses to a crime, not one person should be executed.”

But Dee Ann, that‘s the question.  That‘s the problem.  What is unequivocal?   What is enough?   What is enough agreeable witnesses, et cetera?  

Tiffany Cason, a law student from New York.  “For the first time I have questioned my decision to become a key player in our justice system.  When prosecutors who are charged with upholding and reinforcing the laws of our system say it‘s OK for one or two innocent people to die so that the guilty may also die, I wonder what we have come to.”

Also from New York, Steve Mercer.  “What do victims‘ rights have to do with the death penalty?  Which part of wrong as in not the killer don‘t they get?”

And finally Leawood of Kansas—Leawood Kansas—what is it—no, Daniel Singer from Leawood, Kansas.  “It‘s disgustingly utilitarian to say that executing an innocent person is OK as long as there are X number of guilty people executed along with him or her.  How many correct executions make a mistake worth the risk?”

That was—I have to say, that was an interesting program and boy, did it lead to fiery e-mails on both sides. 

Your e-mails in general about the program.  Write about today‘s program, abramsreport—one word -- @msnbc.com.  We‘ll go through them at the end of every program.

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

I‘ll see you tomorrow.

END   

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