updated 8/4/2004 9:48:37 AM ET 2004-08-04T13:48:37

Guest: Bill Portanova, Dean Johnson, Gloria Allred, Lisa Bloom, Dr. Werner Spitz, Jennifer Dobner

DAN ABRAMS, HOST:  Coming up, late word that Scott Peterson‘s girlfriend, Amber Frey, will take the stand next week.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  This has jurors hear that Peterson signed up for porn channels just weeks after his pregnant wife was reported missing.

And newly released transcripts in the Kobe Bryant case reveal graphic and explosive testimony.  The defense will argue the victim had sex with someone else after Bryant, but before her rape exam.

Plus, new surveillance video shows Mark Hacking at a convenience store just hours after police believe he killed his pregnant wife.

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  Wow, what a day in the world of high-profile legal and law enforcement stories.  We start tonight with the Scott Peterson case.  Some explosive testimony and news that Peterson‘s girlfriend, Amber Frey, will finally take the stand.

For all the day‘s developments, we head to the courthouse, MSNBC‘s Jennifer London.  Hi Jennifer.

JENNIFER LONDON, MSNBC CORRESPONDENT:  Hi Dan.  Yes, you are correct. 

We have learned that Amber Frey is scheduled to take the stand next week.  Now, keep in mind, the prosecution in the past has changed the order of their witnesses, but as of today, we are being told that she is scheduled to testify early next week.  She, of course, is a very key witness for the prosecution.  She was having an affair with Scott Peterson when Laci disappeared.  Amber Frey saying based on what Scott told her, she thought Scott was not married when they were involved.

Now, the prosecution has implied that Amber‘s involvement with Scott Peterson was entangled in his motive to kill Laci and baby Conner.  Now, obviously, Dan, we do not know exactly what Amber Frey will testify to, but we do know that when she was cooperating with the police‘s investigation, she did agree to tape-record a number of phone conversations with Peterson.  It is possible we will hear part of those recordings in court.

Now, in opening statements, the prosecution did tell the jury that Peterson was so enamored with Frey that during a candlelight vigil for Laci, he did not go up on the stage with the rest of his family because he was too busy talking on his cell phone to Amber Frey.  Now this afternoon, an attendee of that candlelight vigil testified, and she said that she did see Scott Peterson there.

And many times when she saw him, he didn‘t seem to show any emotion at all.  And then, one time when she looked at him, he was actually smiling.  Now, this testimony is just another attempt by the prosecution to show that Scott Peterson just acted odd in the days and weeks.

ABRAMS:  There was also.

LONDON:  . after Laci disappeared and.

ABRAMS:  Jennifer, there was also testimony about porno; that he‘s ordering porno or something after Laci goes missing.

LONDON:  Dan, I was just about to get to that.

ABRAMS:  Yes.

LONDON:  Despite the defense‘s best efforts to keep this testimony out, we ultimately did hear from a representative with a satellite company who says that just a few days after Laci disappeared, Scott Peterson called up and changed the original programming lineup from what Laci had scheduled.  He—Peterson, in fact, added what was said in court as two hardcore porn channels.  Prosecutor Dave harries asking the witness, Donald Toy, so when was the first change, the change being to the service.

The witness responded, 1/8/03.  Playboy channel was added, he mentioned.  Then Dave Harris says well, what happened after that?  Toy said well after five days, the Playboy channel was dropped and 10 Ecstasy channels were added.  Harris saying what is that, and Toy said well, it‘s adult content.  It‘s uncensored, and it‘s very expletive.

Now, Dan, this testimony‘s interesting because the prosecution‘s implying that this just shows that Peterson knew Laci wasn‘t coming home.

ABRAMS:  Yes.

LONDON:  . because he changed the programming lineup from what Laci had originally wanted, and if she was coming home, she was not going to allow.

(CROSSTALK)

LONDON:  . hardcore porn to come into the house.

ABRAMS:  That‘s - all right, that‘s interesting.  Jennifer London, thanks very much.

So, we‘ve got porno that Scott Peterson is ordering.  We got how he‘s acting at the vigil, and Amber Frey coming up on the stand.  Let me just read you—this comes from the profiling report that I have it right here.  And this is what it says about this issue of what was on the computer.

Investigator Kirk Stockham conducted a search of data contained in four computers seized during search warrants for his residence and work site.  Stockham said three of the four computers were used exclusively by Scott Peterson and had been used to obtain information regarding Viagra, to obtain information regarding Berkeley Marina and water currents and contained extensive—we don‘t have this—OK—pornographic images and sexually explicit writings.

Some of the primary themes depicted in the pornographic images were bestiality and bondage.  The writings included essays entitled “The Wife Confesses” and “Raping The Teacher.”

My take:  If Scott Peterson is innocent, he sure begged people to think he was not by acting the way he did after Laci‘s disappearance.  Let‘s bring in our legal team.  Tonight:  Amber Frey‘s attorney, Gloria Allred; Lisa Bloom, civil rights attorney, anchor at Court TV, also Gloria‘s daughter; former San Mateo county prosecutor, Dean Johnson; and California criminal defense attorney William Portanova.

All right.  You know, Bill Portanova, I‘m going to start with you.  You know, he‘s ordering porno after Laci disappears, and he supposedly is still hoping that she‘s going to come home?

BILL PORTANOVA, CRIMINAL DEFENSE ATTORNEY:  Well, I don‘t think you can read an awful lot into this, because frankly I don‘t think the statistics and the reports are in on what suburban people are doing with this online pornography.

ABRAMS:  Yes, but how about ordering it only after your wife disappears?

PORTANOVA:  Well, I‘m not certain that that really adds up to anything except an embarrassing personal fact for this character.

ABRAMS:  Dean Johnson.

PORTANOVA:  Well, the truth is he can‘t—his wife is gone, and he can‘t go out.

ABRAMS:  Yes.  Yes.  So, you know, why not.

UNIDENTIFIED FEMALE:  Oh come on.

ABRAMS:  . why not stay home an enjoy yourself.

(CROSSTALK)

ABRAMS:  . enjoy yourself, so to speak.

UNIDENTIFIED FEMALE:  Come on, Dan.

(CROSSTALK)

ABRAMS:  All right, Dean Johnson, go ahead.

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Bill, you know I don‘t know if that‘s true, that he can‘t go out.  I mean after all, the evidence is that at the candlelight vigil he‘s on the telephone talking to Amber Frey and telling her that he can‘t meet up with her because he‘s going off to Kennebunkport, Maine, or something, so it sounds like he‘s planning to have some sort of romantic relationship.

And you know, I think it might have been a fairly close issue on the inflammatory impact of this outweighing its probative value.  The judge ruled that it could come in, and I can‘t speak for all men in the world.  It seems to me that if you have a wife who has just gone missing and you‘re concentrating on having this wife brought back, having her found.

ABRAMS:  Can you imagine sitting there.

JOHNSON:  . the last thing in the world.

ABRAMS:  . thinking to yourself.

JOHNSON:  . that‘s on your mind.

ABRAMS:  Yes.

JOHNSON:  . is going to be ordering.

ABRAMS:  . sitting there thinking to yourself.

JOHNSON:  . a Playboy channel.

ABRAMS:  All right, Dean.

JOHNSON:  . and then canceling that and ordering.

ABRAMS:  All right, the bottom line is.

JOHNSON:  . Ecstasy channel.

ABRAMS:  All right, the idea, I think, here is, Gloria, the idea that someone is going to be saying, you know, I‘m going to go and find my wife, but you know what?  I‘ve got an hour to kill, and in the meantime, I want to get that cable company—I‘ve got to call the cable company in the meantime to add that porno channel.

UNIDENTIFIED FEMALE:  Ten porno channels.

GLORIA ALLRED, AMBER FREY‘S ATTORNEY:  Of course, the question is, is it only the hour that he wanted to kill, so to speak—interesting choice of words, Dan.  And you know, all of this—the question—it raises the question, are these acts that are consistent with an innocent man?  And the jury and the judge has said that it‘s going to be for the jury to decide what inference, if any, to draw from the adult programming that apparently he ordered and that Scott was watching.

And you can‘t look at them in isolation.  You have to look at them in the context of also the calls that he was making to Amber Frey and all of his other actions post Laci‘s disappearance.  Are these the acts of a grieving husband or of a husband who didn‘t think his wife was coming back?

PORTANOVA:  Well, that‘s the argument that the prosecutor was able to convince the court—it was introducing this evidence for.  But come on, we‘re trial lawyers.  We know what this evidence was introduced for.  It‘s introduced to dirty this guy up.

UNIDENTIFIED FEMALE:  No, that‘s not true.

PORTANOVA:  And there‘s plenty to dirty this guy up with.

(CROSSTALK)

PORTANOVA:  He‘s a cad.  He‘s a philanderer.

UNIDENTIFIED FEMALE:  It‘s worse than that.

PORTANOVA:  . and now we find out he‘s a guy who has all kinds of odd habits in the middle of the night.

UNIDENTIFIED FEMALE:  It‘s not just odd habits.

(CROSSTALK)

ABRAMS:  Lisa Bloom.

(CROSSTALK)

LISA BLOOM, CIVIL RIGHTS ATTORNEY:  Dan.

ABRAMS:  Go ahead, Lisa.

BLOOM:  Dan, you know it‘s time somebody asked the question, I‘m going to ask it even though I have to do this in front of my own mother—is Scott Peterson a sex addict?  I mean look at the facts.  This is a married guy who brags about his one-night stands.  He has not just one but multiple mistresses.  He‘s got Viagra on him when he‘s making a run for the border after Laci disappears.

Now we find out he orders not just one, but 10 explicit porno channels after Laci disappears two weeks later, and he cancels them when the police arrive to search his house.  Something is wrong with Scott Peterson‘s control of his own sexuality.  I think that‘s the root of the case against him.  That should be the prosecutor‘s motive in this case.  Add it all up, it adds up to something really bad on Scott Peterson‘s part, I think.

ABRAMS:  Yes.

PORTANOVA:  This evidence.

JOHNSON:  Well you know I think.

ABRAMS:  Let me take a quick.

JOHNSON:  . Lisa makes a very good point.

ABRAMS:  Let me take a quick break here.

JOHNSON:  Lisa makes a very good.

ABRAMS:  Hang on.  Hey Dean, we‘re going to take a quick break.

JOHNSON:  Yes.

ABRAMS:  Everyone‘s going to stick around.  And when we come back: 

Amber Frey‘s expected to testify next week.  The question:  Is she really going to be the star witness?  And how will she hold up?  Her attorney is with us.

Later, newly released surveillance video shows Mark Hacking just hours after police say he killed his wife, and one witness says Hacking confessed to killing his wife while she slept.

And some critics are charging the government went too far in its latest terror warning because much of the intelligence is old.  But didn‘t al Qaeda start planning 9/11 years in advance?

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, she‘s supposed to be the key witness in the prosecution‘s case against Scott Peterson.  Amber Frey is testifying next week, but will she really be the star witness?  Coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

AMBER FREY, SCOTT PETERSON‘S FORMER GIRLFRIEND:  I met Scott Peterson November 20, 2002.  I was introduced to him.  I was told he was unmarried.  Scott told me he was not married.  We did have a romantic relationship.  When I discovered he was involved in the—or the Laci Peterson disappearance case, I immediately contacted the Modesto Police Department.

(END VIDEO CLIP)

ABRAMS:  She‘s coming.  Amber Frey is taking the stand next week.  At least that‘s the schedule, as early as Monday or Tuesday.  Remember, she says that she went to police as soon as she discovered that Peterson was married and that his wife was missing.  She agreed to tape-record their conversations and turn them over to police.  The question is, of course, how damaging will all of it be?

Remember, Peterson told Frey they would come together in January.  They‘d be able to spend a lot more time together.  Also saying that his wife had passed away.  Let‘s look back at one part of their conversation, January 6, 2003, when Peterson supposedly is kind of coming clean about his relationship.

Frey:  You came to me earlier in December, told me that you had lost your wife.  What was that about?

Peterson:  She‘s alive.

Frey:  What?

Peterson:  She‘s alive.

Frey:  Where?  She‘s alive where?

Peterson:  In Modesto.

Frey:  Yes, and I deserve to understand an explanation of why you told me you lost your wife and this was the first holiday you‘d spend without her.  That was December 9 you told me this, and how all of a sudden your wife is missing.  Are you kidding me?

Peterson:  Yes, she.

Frey:  Did you hear me?

Peterson:  I did.  I don‘t know what to say.

My take:  In many cases, we say that a person is the star witness just because he or she is the most sensational witness.  Amber Frey is a sensational witness, and I think, also, could make or break the case against Peterson.  Most of it will be the tapes, but she becomes the glue that could bring all the pieces of this case together.

All right.  Lisa Bloom, how important is Amber Frey?

BLOOM:  Absolutely important.  I agree with you, the star witness. 

And just based on our reading of the transcripts, she has such important testimony to offer, and she is so good on those tapes, Dan.  She‘s like a junior FBI agent.  She is relentless going after him, trying to get admissions.  At least getting him to acknowledge on the tapes that he did tell her December 9 that this was going to be the first holidays without his wife and Laci was still alive at that point.  Knowing that she‘s represented by my mom.

ABRAMS:  Yes.

BLOOM:  . knowing she‘s going to be very well prepared to testify, she‘s going to be a bombshell in that courtroom, I have no doubt.

ABRAMS:  Mama Gloria, is she nervous?

ALLRED:  Well, obviously, Dan, there‘s a great deal of pressure, and this is a position that I‘m sure that none of us would want to be in.

ABRAMS:  So, she is nervous.

ALLRED:  Who among us would want to trade places with Amber?  Well, I think that when she goes in there, she‘s going to sit there, she‘s going to tell the truth.  If she has any nervousness, that once she sits down and starts testifying, I think it will be gone because much of what she has to say is going to be corroborated by those tape recordings, and she knows that if she‘s telling the truth, she can be confident that that will come across.

ABRAMS:  Bill Portanova, I don‘t want to hear you say, yes, so she‘s a jilted woman.  What about the fact—how do you address the fact that he says that he‘s going to be able to spend a lot more time with her in January, and he says that his wife was dead?

PORTANOVA:  This is a guy who‘s been philandering and probably has 1,000 lies like that that he uses to introduce himself into the lives of all kinds of unsuspecting women.  This was one of them.  And Amber Frey—

I didn‘t realize she only met him in November and then the wife disappears weeks later?  Is that.

ABRAMS:  Yes.

PORTANOVA:  . is that really the time line?

ABRAMS:  Yes.

PORTANOVA:  Well, I believe that Amber Frey is the most important witness for the prosecution.  This is their Hail Mary pass.  If she can deliver the case, they‘ll win.  But without her testimony hitting every note perfectly, they‘re going to lose this case.  And one of the notes that she had better not hit, because it sounds off key to me, is that they had this deep love affair.  Three or four weeks ain‘t love, folks.

BLOOM:  Well but I‘ll tell you something, Dan, the early part of a relationship is when people are the craziest.  They have a lot of sex.  These two were you know really interested in each other, to put it in terms I can say on national television, and that‘s when people tend to be completely delirious.  It makes perfect sense to me.

ABRAMS:  Well let‘s talk about what Amber handed over in terms of evidence to police.  Remember, she had to kind of convince them, say look, yes, I know that guy.  I was having an affair with him.  Here‘s what she turned over, and this is stuff that you heard only here on the program about justice.

All right.

(CROSSTALK)

ABRAMS:  Hang on.  Hang on.  I‘m going to read the items.  All right, three wine and champagne bottle corks dated with their names on them.  That‘s my—one of my favorite items—Christmas party invitation for the 14th of December—that was 10 days before Laci goes missing—Scott‘s tuxedo rental receipt, photos of the lovely couple, 12/14/02, and Frey‘s Christmas gift to Peterson with the words “for my love” on the wrapping paper, and of course, then there was the strip of several unused wrapped condoms that Amber said would have Scott‘s fingerprints on them.

PORTANOVA:  Dan.

ABRAMS:  Go ahead.

PORTANOVA:  Dan, this entire list of so-called love mementos could have been scraped off the floor of their car after a single date.  I don‘t think that.

(CROSSTALK)

PORTANOVA:  . I don‘t think that anybody is well served by trying to take these scraps and trying to call it a masterpiece.

(CROSSTALK)

PORTANOVA:  It‘s not.

ABRAMS:  There was the stargazer, too, which I should have mentioned.

ALLRED:  Yes.  Dan, the problem with the defense arguments that this is really kind of a de minimis type of relationship is that one has to just listen to the tape-recorded phone calls between Scott and Amber after Laci‘s disappearance, and then one can judge by Scott‘s own words as to whether or not he hoped to have a future with Amber.

ABRAMS:  Gloria, very quickly, how long do you expect she‘ll be on the witness stand?

ALLRED:  It‘s really hard to judge, Dan, because I don‘t know how long Mark Geragos and the defense are planning to cross-examine her.

ABRAMS:  Dean, what would you guess?

ALLRED:  I‘m.

ABRAMS:  Let me just ask Dean that.

ALLRED:  I‘m planning to be there for the week, but we‘ll have to see.

ABRAMS:  Dean.

JOHNSON:  I would think she‘s going to be on the stand at least two or three days.  And if I can just weigh in on this, I don‘t think she‘s going to be a star witness.  I don‘t think there is a star witness in this case that‘s going to make or break anybody‘s case.  And the main reason I think she‘s not going to be the witness that everybody expects is that this jury has already heard so much character evidence about Scott Peterson, they‘ve already incorporated into their thinking the fact that he‘s a philanderer, that he‘s a cad, that he‘s a liar.  This is just going to be more of the same.

ABRAMS:  All right.  Well, we shall see.  Gloria Allred, Dean Johnson, thanks a lot.

ALLRED:  Thank you.

JOHNSON:  Thank you, Dan.

ABRAMS:  Coming up, newly released transcripts in the Kobe Bryant case show the prosecution may have been having some second thoughts about the case.

And if al Qaeda started planning 9/11 years in advance, why are some critics charging the government was wrong to warn about attacks on financial institutions just because some of the intelligence came from a few years back?

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

TOM RIDGE, HOMELAND SECURITY SECRETARY:  I don‘t want anyone to disabuse themselves of the seriousness of this information simply because there‘s some reports that much of it is dated.  It might be two or three years old.  This is a resilient organization that does its homework, and we just have to accept that reality.

(END VIDEO CLIP)

ABRAMS:  Homeland Security Secretary Tom Ridge in New York this morning answering critics who say the administration‘s latest terror alert was unnecessary.  The intelligence about certain financial institutions in New York and Washington was old, some of them from 2000 and 2001, and some even suggesting it could have been motivated by politics.

The question:  Should financial centers in three cities be on high alert based on an al Qaeda surveillance that started years before the September 11 attacks?  Well this latest information does seem to fit the terror group‘s pattern.  Al Qaeda surveillance of American embassies in Kenya and Tanzania began four years before they were hit by suicide bombers.

The attack on the USS Cole in 2000 started with planning sessions in ‘98.  Plans for foiled millennium attacks in Jordan began evolving a year before the event.  And al Qaeda‘s number three, Khalid Sheikh Mohammed claims he thought of attacking building with commercial aircraft in 1995, sold the idea to Osama bin Laden in ‘96, began planning 9/11 in ‘99.

My take:  This was a legitimate warning based on specific information on specific targets.  It doesn‘t matter if the attack was in the planning phases or if it was about to be executed.  The government had an obligation, I think, to release this specific information since al Qaeda‘s known to plan carefully and deliberately.  I think the critics are off base on this one.

I‘m joined by NBC News investigative producer and terrorism expert Bob Windrem.  All right, Bob, give us a little history here in term of you know the way al Qaeda works.  Do you think that the criticism is fair?

BOB WINDREM, NBC NEWS INVESTIGATIVE PRODUCER:  Well, I think the way al Qaeda works is very similar to what was seen on the laptop that was grabbed from Abu Talha in Pakistan.  You have planning that begins three, four, five years in some cases ahead of the operation, surveillance beginning anywhere from one to four years before an operation.  And also, a lot of this information is contained in files on laptops.

There is a very specific case:  1994, President Clinton went on a state visit to the Philippines.  He had already committed to return to the Philippines two years later for an ASEM summit.  The Secret Service later learned that during that 1994 visit, all of his travels had been checked with videotapes.  There were maps.  There were notes, all of which were on a laptop that was seized in January of 1995.  And it turned out that all of that information had been transmitted to Osama bin Laden personally who was then living in Sudan.

ABRAMS:  So, is it fair to say, then, that the people who say, well, you know what, they shouldn‘t be issuing warnings based on information they‘ve got from 2000, 2001.  If that alone is the basis of the criticism, then it‘s off base?

WINDREM:  Well, I think the key thing here is that if you talk to U.S.  officials, as I did today, they were exasperated and they basically said the following—if we had not released this and there was an attack a month from now.

ABRAMS:  Yes.

WINDREM:  . on financial districts, we would have been tarred and feathered for not releasing it.  So, for them, it‘s a position of damned if we do, damned if we don‘t.  But I can tell you this:  They were very angry today about the critics claiming that they should not have released that information.

ABRAMS:  And they still stand by the quality of the information, correct?

WINDREM:  Oh, they stand by the quality of the information, absolutely, because they say it corroborates other streams of information that are not documentary.  This is documentary evidence, and when you see documentary evidence, it raises the standard considerably.  And this corroborates other evidence that they have had of al Qaeda interests in the financial district going back, again, years.

In fact, not long after the September 11 attacks bin Laden and Zawahiri, his number two, were shown discussing on a videotape how they believe that the U.S. recession was a direct result of the September 11 attacks and, in fact, they looked forward to other attacks on the U.S.  financial sector.

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

WINDREM:  Thank you.

ABRAMS:  Coming up, newly released testimony in the Kobe Bryant case shows how the defense will try to argue that Bryant‘s alleged victim had sex with someone else after Bryant, before the rape exam.  Boy, that‘s going to be an insurmountable problem.

(COMMERCIAL BREAK)

ABRAMS:  Coming up:  Newly released transcripts in the Kobe Bryant case reveal graphic, explosive testimony, a possible defense witness says she thinks the alleged victim likely had sex with someone else after Bryant, before her rape exam.  First, the headlines.

(NEWS BREAK)

ABRAMS:  We are back.  It could be a bombshell in the Kobe Bryant case.  After losing a court battle to keep the transcripts of closed-door hearings about the woman‘s sexual past entirely secret, Judge Terry Ruckriegle released edited transcripts last night with just 68 lines removed.  It includes this statement from defense expert Elizabeth Johnson referring to the alleged victim in the Bryant case.

She says, quote, “Sexual contact taking everything in totality likely occurred after the woman and Mr. Bryant were together.”  After but before the rape exam.  Again, that‘s coming from one of Bryant‘s team experts, so let‘s be clear about that.  But it backs up a key defense claim that the woman had sex with someone after the encounter with Bryant that he says was consensual, and it contradicts a statement made earlier by her lawyer, John Clune, who said in court—the claims that the victim in this case had any sexual contact with anyone within 15 hours of being assaulted by Mr. Bryant are patently false.  Anyone trying to prove otherwise will be chasing ghosts.

The question now is whether the prosecution has a ghost of a chance to prove its case given these details and Judge Ruckriegle‘s decision to allow evidence about the woman‘s sexual past, in particular, 72 hours between the rape exam and before that.

Quoting from the transcript again, Prosecutor Ingrid Bakke told the judge, “If in fact you were to rule that all the rape shield evidence were going to come in, in this case I‘m thinking the prosecution is going to sit down and reevaluate the quality of its case and its chance of a successful prosecution.”

My take:  This another big problem for prosecutors.  If she did have sex after Bryant but before the rape exam, I think everyone would agree, many would agree this case is over.  Now it‘s going to come down to a battle of the experts and we‘ll have to wait and see.  But the fact that prosecutors are even talking about reconsidering the case speaks volumes.

Let‘s bring in our panel:  Lisa Bloom, former prosecutor, anchor, Court TV; criminal defense attorney William Portanova.  All right, Lisa, this is real bad news for prosecutors, isn‘t it?

BLOOM:  It is, Dan.  I‘ve read all 100 pages of his transcript today.  This isn‘t just a blithe claim by Pamela Mackey anymore.  This is a good argument backed up by a strong forensic scientist, one who used to be associated with the Colorado Bureau of Investigations.  But we have to keep firmly in mind, Dan, what Judge Ruckriegle said in releasing this transcript, and that is it is a one-sided hearing.  This was only the hearing pertaining to the defense expert.

ABRAMS:  Right.

BLOOM:  We‘re not getting the prosecution side.  But I got to tell you, I‘m also concerned about how the prosecution is so out-lawyered in this hearing.  Their cross-examination of the expert was so weak.

ABRAMS:  Yes, I agree with you.

BLOOM:  . they barely got anything out of it.

ABRAMS:  Yes, all right, let me—I completely agree.  I read the cross-examination and I kept thinking OK where are they going with this?

BLOOM:  Yes.

ABRAMS:  Dr. Werner Spitz joins us, the famous medical examiner.  Doctor, you‘ve had a chance to read some of this document.  What do you make of the analysis here of this defense expert saying that she believes based on the evidence, the woman in this case had sex with someone after Kobe Bryant but before the rape exam?

DR. WERNER SPITZ, MEDICAL EXAMINER:  Well, if you find DNA—strong DNA activity, chances are she did.  Because the DNA stays, semen stays for approximately 96 hours and DNA stays as well.

ABRAMS:  But they‘re going to say it could have been transferred.  They‘re going to say that she may have put on, you know, an old pair of underwear before she went to the rape exam and that, as a result, there was DNA that was transferred onto her body.

SPITZ:  You know, the chances of that occurring as widespread as the DNA is alleged to have been, like on the thighs and inside and on the pants, that is extremely unlikely.

BLOOM:  Well, but Dan, even this expert, Dr. Johnson, admitted in the hearing that the semen can remain in the woman‘s body for five days.  Now, this victim—this alleged victim says that she had consensual sex with her boyfriend two or three days before the encounter with Kobe, so it could still just be inside of her body.

ABRAMS:  But I think.

BLOOM:  . from the consensual sex.

ABRAMS:  But did they also, did they not, in the hearing said that if that were the case, then they probably would have found some DNA of that sort on Kobe Bryant, which they didn‘t.

BLOOM:  Probably, but we don‘t know to what extent he washed, he wiped, cleaned up.  Remember.

(CROSSTALK)

BLOOM:  . he initially lied to the police that he didn‘t have sex at all.

ABRAMS:  Yes, this gets kind of gross, but look, this is what this case is going to be about.

BLOOM:  It‘s important, though.

ABRAMS:  It is.  It is.  Bill Portanova, let me ask you a separate question and that is about deal making.  If you‘re representing Kobe Bryant, is there any deal you will take on—in a criminal case in order to put this behind you?  Is there anything you can think of apart from saying just drop the charges that you would accept in order to avoid going to trial?

PORTANOVA:  Absolutely.  They would be wise if the district attorney offered them some minor misdemeanor or infraction of disturbing the peace.  They should take it.  But anything offered to them stronger than that by the prosecution at this point, they should go to trial.

ABRAMS:  Wouldn‘t that have an impact on any civil case, too, in the future if he pled guilty to some, even a misdemeanor?

PORTANOVA:  No, because if he pled guilty to a misdemeanor that had nothing to do with sexual activity just to give the district attorney‘s their statistic, it wouldn‘t have any effect on the civil case because it wouldn‘t be making any admission that would operate in a civil case.  The bottom line here is the government‘s case has completely fallen apart, and I think that the cross-examination of the defense expert witness in that transcript was weak because the government knows they can‘t disprove it.  I think the government—government‘s own experts are probably going to have to admit.

ABRAMS:  Yes.

PORTANOVA:  . to the same conclusions that the defense expert has.

BLOOM:  Well, it‘s a little early to sound the death knell in this case.

ABRAMS:  Lisa Bloom.

BLOOM:  . we haven‘t heard.

ABRAMS:  Let me ask you.  Lisa Bloom, no one is mentioning a point that I found in that document that I think is crucial.  Now remember, Mark Hulbert, the D.A. in this case, right, has said he‘s not going to try the case—you know, sort of many times D.A.s themselves don‘t try the case—he‘s going to let his deputies take care of it, the people with all the trial experience.

BLOOM:  Yes.

ABRAMS:  . et cetera.

BLOOM:  . which is smart.

ABRAMS:  OK.  Fine.  Everyone always says you know what, D.A.s never try cases.  Well I‘ll tell you what.  You read that transcript and Mark Hulbert was certainly planning on trying this case.  He said Mr. Crittenden and myself and Ms. Bakke and Ms. Easter are going to basically have to clear our plates 100 percent and so we‘re looking at what we need to get—this is about setting a trial date—and so that‘s why we‘re asking for a trial date right away.

I mean, Lisa Bloom, that says to me Hulbert was planning on trying

this case.  My concern is he recognizes how weak the case is, he‘s up for

re-election, he doesn‘t want to be involved.

BLOOM:  I don‘t know about that, Dan.  He could be involved behind the scenes.  He could be supervising.  He could be working back at the office.  And look, that comment by the prosecutor that you had up earlier about reconsidering the case based on the sexual history evidence, that was before the trial date was set back in June.

Now that the trial date has been set, they are going forward.  They‘ve made the decision to go forward.  This was a closed-door hearing.  It was somewhat informal.  The fact that the prosecutor said that when they didn‘t expect this transcript to be released I don‘t think means a whole heck of a lot.  Everybody‘s going forward.  This case is going to be tried.

ABRAMS:  Really.

(CROSSTALK)

ABRAMS:  I‘m not so sure.  I.

(CROSSTALK)

ABRAMS:  Go ahead.  Who is wanting to get in.

PORTANOVA:  This is me Dan.

(CROSSTALK)

PORTANOVA:  It‘s Bill.  I‘m a little troubled by that comment.  If prosecutors make that kind of a statement in a desperate attempt to persuade a judge to keep out a piece of evidence.

BLOOM:  That‘s not what they‘re doing.  The judge asked if there was any possibility of a plea bargain and they said it‘s going to depend on some of the rulings.

PORTANOVA:  They‘re seriously reconsidering the case if this evidence comes in, and what that tells me is they know how fatal this is.

ABRAMS:  All right.

PORTANOVA:  . because they know they can‘t fix it.

ABRAMS:  Everyone—all my guests are going to stick around.

Coming up, new information in the Lori Hacking case.  Prosecutors reveal that Mark Hacking told a witness in a psychiatric ward that he‘d killed his wife as she slept and threw her body in a trash bin.  The details up next.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

DAVID YOCOM, SALT LAKE COUNTY DISTRICT ATTORNEY:  Mark Hacking told this reliable citizen witness that he killed Lori while she was asleep in bed and disposed of her body in a dumpster.

(END VIDEO CLIP)

ABRAMS:  Salt Lake City D.A. David Yocom at a press conference, really just about over an hour ago.  Earlier today, this surveillance video taken at 1:00 a.m. on July 19, about 10 hours before Hacking reported his wife missing, but police believe Lori was already dead by this time.  That her husband had killed her before he went to this Salt Lake City convenience store.

Now look closely.  You can see Hacking checking his hands repeatedly as he‘s at the counter, paying.  He then leaves—there you go—he then leaves in his wife‘s car.  Remember, Lori‘s car was found at a local park that morning where Mark Hacking had said she was jogging.

I‘m joined now by Jennifer Dobner, a police reporter for Salt Lake City‘s “Desert Morning News.”  She‘s also a NBC News contributor.  You know, I think that one of the things, Jennifer—we‘re going to talk about all the evidence that they have in a moment.  But a lot of it relates to his own stories simply not matching up with a time line, right?

JENNIFER DOBNER, “DESERET MORNING NEWS”:  That‘s correct.  And today in the probable cause statement we learned that he actually called police dispatch about 10:10 to report his wife missing the first time.  Police had only said before that it was 10:49 when he called them, but, in fact, that was the second call.  We reported this morning some information we got from an initial report where he tells one person one thing about where Lori is or what happened and another person another thing all in a real short time period, so none of it adds up.

ABRAMS:  So, wait.  He calls at 10:10 and yet, he‘s leaving the furniture store, is he not, around 10:30 or so, and then I guess he makes the second report at.

DOBNER:  Right.

ABRAMS:  . about 10:49.  So, he‘s literally calling and saying his wife is missing and then going to the furniture store and then calling again?

DOBNER:  Right.  The probable cause—or the report from this morning says that he talked to his father at 10:00 a.m. and told him Lori wasn‘t at home and he was concerned.  He also supposedly called her work around 10:00 a.m. and asked for her and learned that she wasn‘t there.  He‘s also in the furniture store around 10:00 a.m.  He calls dispatch at—I think 10:07 is the exact time, buys the mattress at 10:23, calls dispatch again at 10:49.

ABRAMS:  All right.  Yes, let me just go over some of the reasons, first (ph) that he had lied about being accepted to medical school.  He visited two furniture stores, bought a new mattress, left furniture store at around 10:30 or 10:35.  Again, remember the time line that Jennifer was just laying out.  Lori was reported missing at 10:49.

And Jennifer Dobner thanks very much.  We appreciate it.

DOBNER:  My pleasure.

ABRAMS:  My take:  Mark Hacking is in big trouble.  Let‘s bring our legal team back.  All right, Dr. Werner Spitz, when it comes to physical evidence in a case, let me read you some of the evidence that they found—human blood on a knife found in the bedroom, blood on the bed headboard and bed rail.  Blood found in the bedroom matches traces of blood found in Lori Hacking‘s car.  The mattress in the trash bin.  Got a lot of physical evidence comparatively, don‘t they?

SPITZ:  Well, I suppose they do.  And the blood would indicate that there was trauma.  There‘s no body.  So, now they need to find the body.  I hope the body is not decomposed to the point where forensics will not be much—of much use other than to identify it.  The chances of a weapon having hit a bone will be significant in making a diagnosis.

ABRAMS:  Why?

SPITZ:  . as to what—well, what kind of weapon it was and whether that weapon that was found, namely, a knife, would—with the blood on it come from that body.

ABRAMS:  Lisa Bloom, I—this is one of those cases where I don‘t even know—I mean I know they want to find the body for obvious reasons.  But as a sort of purely legal in-the-courtroom matter, I don‘t know if they need to find the body.

BLOOM:  No, the body‘s certainly not required to get a murder conviction, even an aggravated murder conviction, which is what he‘s facing.  And look Dan, as you pointed out, as your report said, there‘s a confession apparently in this case, that he told somebody he killed her on the mattress in the bedroom with a knife.  I mean what more do they need?  The only hope this guy has is an insanity defense and even that prevails less than one percent of the time.  I think it‘s pretty clear this guy is going down.

ABRAMS:  And Bill Portanova, Utah has a real tough standard for insanity.  If you were hired today by this guy, what do you—what‘s the first thing you do?

PORTANOVA:  Plead him.  I think that we finally have a case here on today‘s program where there‘s a lot of evidence that makes it clear that Mr. Hacking in all likelihood committed this crime.  Yes, there is a very high standard for insanity in the state of Utah.  Regardless, he knows right from wrong.  He‘s going to be unsuccessful if any mental defense was pursued.  This is a lot of evidence.

ABRAMS:  Yes, but still.

PORTANOVA:  . this is.

ABRAMS:  . yes, but let‘s assume for a moment that this case does go to trial and we learn that, you know, there were transients in the neighborhood and that there were people who might have had access to the Hacking home and that the police focused on Mark Hacking from day one.  I can just hear these arguments.

BLOOM:  Sounds familiar.

ABRAMS:  . coming out of your mouth.

PORTANOVA:  Well, you would never hear those arguments coming out of my mouth in the first case.  Those might—you might have heard those come out of some other attorney‘s mouth.  But the—this is a case—the difference here is—and you‘re comparing that to Geragos‘ comments about the Peterson defenses.

This—Peterson wasn‘t running around his house naked in nothing but a pair of sandals outside—in the outdoors.  Peterson didn‘t go out and buy a brand-new mattress and ditch the other mattress.  And Peterson didn‘t confess to killing his wife and putting her body in the landfill.

(CROSSTALK)

PORTANOVA:  All of these things—this is one—it will never go to trial.

ABRAMS:  Well let‘s.

(CROSSTALK)

ABRAMS:  Hang on.  Hang on.  We have got a piece of sound here from Lori Hacking‘s attorney, I believe—I‘m sorry—not Lori Hacking—Mark Hacking‘s attorney.  Let‘s listen.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  That certainly is a possibility.  You know, is it something we are ultimately going to rely upon, I don‘t know.  You know, the mental illness defenses in this country and specifically in this state have been limited substantially over the past few years and make it very difficult to present those kinds of defenses.  They‘re not precluded.  I have been successful.  I probably have one of the very few successful cases in using mental health as a defense.  But they‘re most difficult to run.

(END VIDEO CLIP)

ABRAMS:  You know, Bill Portanova, when I even hear an attorney concede that they‘re considering a mental health defense, it tells me that that is the defense they‘re going to pursue.

PORTANOVA:  Well, I think that they pursue it at high risk because nobody falls for it anymore.  If a person can function in their normal day-to-day life, nobody‘s going to believe.

ABRAMS:  Because anyone who has killed someone.

BLOOM:  Yes, but you know what else it means Dan.  It means that he has to concede that Mark Hacking did it.

ABRAMS:  Right.

BLOOM:  In order to establish an insanity defense, you have to concede he did the act and yet he was insane at the time.  He didn‘t know right from wrong.  If that‘s so, why did he hide the body?  He had to know right from wrong if he knew he had to hide the body.

ABRAMS:  All right, we shall.

PORTANOVA:  In the mattress.

(CROSSTALK)

ABRAMS:  . I‘ve got to wrap it up.  I apologize Bill.  All right, Bill Portanova, Lisa Bloom, trying to keep Dr. Spitz you know out of the fray of the debate there.  He‘s a great guest.  Thank you all for coming back.  Appreciate it.

BLOOM:  Thanks.

ABRAMS:  Your e-mails coming up.  Many of you think the administration is playing politics by raising the terror alert warning.  Come on.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, many of you suspicious of the timing of the most recent terror warnings, suggesting it might be political.  You really believe that?  We‘ll see, coming up.

(COMMERCIAL BREAK)

ABRAMS:  Time for “Your Rebuttal”.  Yesterday, we reported the latest threat information on al Qaeda from Homeland Security Secretary Tom Ridge.  Information that shows al Qaeda operatives here in the U.S. have been spying on at least five key financial centers could be targeted for attacks.  In my “Closing Argument”, I said 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.  And with so many specifics about locations, I think it would have been negligent for the government not to inform the public.

Many of you are skeptical including Chris Stockslager in Punta Gorda, Florida.  “You blow me away.  This terror alert is bogus.  It‘s more smoke and mirrors from the Bush administration.  I thought you were smarter than that.”

From Chicago Carol Martinez.  “Dan, Dan, Dan, why wouldn‘t Bush use this election time to put out false warnings about supposed terrorist attacks?  It makes it appear that he and his minions are so on top of things.”

And Brian Nache, a law student in New York City.  “Now again Tom Ridge has announced new threats to financial institutions.  It seems questionable that after criticism for no specific evidence, suddenly specific evidence is released.  Although we should not take such warnings lightly, this new information, especially its timing, still seems political in nature.”

It seems to me that you‘re saying it should be taken lightly.

From Morristown, Tennessee, Raymond Pankiewicz—yes Pankiewicz—responds to my comment that we still must make sure I think that the person in charge of homeland security or in charge of one of these new posts is free from the taint of politics.  The bottom line is still that Tom Ridge was a political appointment.

He says, “The director is a cabinet post just like any other cabinet post.  Why should he not be part of the party?”  Because terror warnings should be something people can feel confident are not being administered for some political gain.

And Shilpa Tiwari points out, a seeming inconsistency in the way we described two of our guests.  “One of the experts in your discussion is named as a terrorism expert, Steve Emerson, while the other was a counterterrorism expert, Larry Johnson.”  Good observation Shilpa.  It‘s silly, and we will not do it again.

Finally, Mark Hacking was arrested yesterday for murdering his five-week pregnant wife Lori, moved from a psychiatric hospital to police custody.  I asked if he set himself up for some sort of insanity defense by running around naked after he claims his wife disappeared.  But I also distinguished between an insanity defense from being incompetent to stand trial.  I said that would mean he‘s basically drooling at the defense table.

Robert Bergstedt writes, “In over 40 years of mental health employment, the psychiatric condition characterized by drooling managed to elude me.  Perhaps you were thinking of someone with a neurological impairment resulting in an intellectual deficiency, for example, Dan Abrams.”

Bob, I‘m comfortable with my colloquial description and I think my viewers got the point.

Got to go.  Thanks for watching.

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