updated 8/10/2004 1:54:25 PM ET 2004-08-10T17:54:25

Gloria Allred, Mickey Sherman, Dean Johnson, Justin Falconer, Scott Mendeloff, Christopher Whitcomb, Greg Skordas 

DAN ABRAMS, HOST:  Coming up, we are live in Redwood City, California, where Amber Frey, Scott Peterson‘s former girlfriend, is getting ready to take the stand in Peterson‘s trial. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  We have new details about exactly what happened on Scott and Amber‘s dates that may help answer one of the key questions, was it really a relationship?  And how will her testimony play with the jury?  We‘ll ask a man who used to be juror number five. 

Plus, new specifics about al Qaeda‘s plans to attack America and the detailed surveillance they conducted to carry it out.  So detailed, they knew who worked on every floor of certain buildings. 

And Salt Lake City authorities charge Mark Hacking in the murder of his wife Lori.  Could he face the death penalty? 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight:  As we wait here in Redwood City, California, for Scott Peterson‘s girlfriend Amber Frey to take the stand, we have some new details about exactly what happened on their dates.  We‘ve obtained those police records that detail seemingly six dates, depends on how you define it, but remember according to prosecutors, the two spoke on the phone 241 times and there are reports that there maybe an additional 100 phone calls between them.  This all leads up to one of the big questions in this case. 

Were they in a relationship as prosecutors claim, thereby providing a motive for Scott Peterson to want to kill his wife, or was it just a fling as the defense has argued?  Maybe these details can help answer that question. 

November 20, 2003, their first date.  Frey and Peterson meet at a Fresno bar, but almost immediately they leave to go to a nearby hotel so Peterson can—quote—“change and shower.”  She accompanies him there.  Peterson brought wine and strawberries to share before dinner—always a special little touch.  Peterson then showers, changes his clothes, and the two then do go out to dinner. 

Scott arranges for a private room at the restaurant.  This guy is a piece of work.  After dinner, they move to a nearby bar where they slow dance until closing time.  They then go to a local market, buy some gin and tonic.  They go back to the hotel room where they had, and I quote, “protected sex.” 

Their next date, December 2, 2003, Peterson and Frey drop her daughter off at preschool, then they head out for a hike and a picnic lunch.  They return to Frey‘s home, ate dinner together.  Peterson spends the night. 

The next day, December 3, 2003, Peterson takes Frey and her daughter to shop for a Christmas tree.  This is the date where he tells Frey he‘s never been married.  Frey saw Peterson three more times and says she learned that Peterson was married and was Laci‘s husband just a few weeks later, on December 29.  That was a few days after Laci went missing.  She contacted police the next day. 

All right.  My take—this sounds more like more than just a two-night fling the defense is claiming.  I didn‘t know that flings included taking a woman‘s child to preschool and buying a Christmas tree with her.  Let‘s bring in our legal team.  Joining me here in Redwood City, Amber Frey‘s attorney, Gloria Allred and former San Mateo County prosecutor Dean Johnson.  Also with us is criminal defense attorney, Mickey Sherman. 

All right, Gloria, how would you characterize this relationship?

GLORIA ALLRED, AMBER FREY‘S ATTORNEY:  How right you are Dan, as you usually are, that this is a relationship.  This isn‘t about four dates as Mark Geragos said.  This is about a serious relationship. 

ABRAMS:  I don‘t know about serious.  I mean come on—I mean you know I‘m willing to go with relationship, as I said.  I‘m not willing to accept fling, but the idea of a serious relationship, really? 

ALLRED:  Well I think that the jury is going to be able to judge the quality of the relationship, when they hear those tape recorded phone calls that Amber made with Scott Peterson at the request of law enforcement.  These, of course, are the phone calls after Laci disappeared when Scott was calling her and she called him. 

ABRAMS:  Mickey Sherman, you‘re both a legal expert and a social expert in terms of dating.  You know, a man who‘s dated...

MICKEY SHERMAN, CRIMINAL DEFENSE ATTORNEY:  Yes.  Yes.  Right. 

Right...

(CROSSTALK)

SHERMAN:  ... right.  We don‘t have to go there, Dan. 

(CROSSTALK)

ABRAMS:  All right.  All right.  So the question is Mickey, how would you define this relationship?  I mean you‘ve dated women with children, et cetera...

(CROSSTALK)

SHERMAN:  This is...

(CROSSTALK)

SHERMAN:  OK...

ABRAMS:  ... I‘m mocking it...

SHERMAN:  ... you‘re getting me in trouble here. 

ABRAMS:  ... but this is a—it‘s a crucial point in the case. 

SHERMAN:  I don‘t know, I‘ve never had a first date where you go to the Fresno bar, then to the hotel room, then back to a private room and then back to another bar.  That‘s not a date.  That‘s a—I don‘t know.  There‘s no nice word for it.  I mean it‘s just a—it‘s an interesting first date, I got to tell you...

ABRAMS:  What about...

SHERMAN:  ... and certainly you don‘t kill somebody for that. 

ABRAMS:  ... what about the Christmas tree and, you know, going out with her and bringing the kid to school and this and that? 

SHERMAN:  Maybe it shows that Scott‘s just a really nice guy, I can tell you.  I—it‘s—but it‘s—it just does not seem, doesn‘t have the earmarks of a relationship that is so strong and so compelling that you would kill your wife and unborn child for.  I‘m sure Amber Frey is a very nice person, but by the same token, that doesn‘t mean you‘re going to kill somebody for her with that kind of a relationship. 

ABRAMS:  Dean, lay out for us the legal issue here.  Just summarize as concisely as you can why it‘s so important how you define this relationship. 

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Well, the ostensible purpose for putting in Amber Frey‘s testimony or Shawn Sibley‘s testimony is for motive.  The difficulty here that the prosecution is going to have is just what we‘re talking about.  Motive is essentially character evidence.  What has to be done here is to bridge this gap between saying that Scott Peterson had a character flaw, he liked to womanize and showing how and why that exactly becomes the proximate cause for a murder. 

The prosecution has yet to bridge that gap.  Now we‘ve all talked about what may lie in that gap.  That it was a difference in lifestyle that Amber was one in a string of women or that Amber was a serious relationship and Laci and Amber couldn‘t co-exist...

ABRAMS:  But Mickey...

JOHNSON:  ... but we don‘t know. 

ABRAMS:  ... there was more.  I mean the—I think that she‘s being called for more than just motive.  She‘s being called to show premeditation.  I mean the fact that he‘s talking in early December about his wife being gone...

SHERMAN:  Yes.

ABRAMS:  ... he‘s talking about being able to spend more time with her at the end of January. 

SHERMAN:  And he‘s also—she‘s also being called to show consciousness of guilt and in fact, actual guilt.  I mean, that‘s the idea, is one would think in those 97 conversations, or as you put it, how many hours of conversations, that he would have admitted or confessed to something and if that‘s there, so be it, but then again, if she had—if he had confessed, wouldn‘t he have been arrested long before the moment that he was? 

ALLRED:  You know, it doesn‘t take a confession, Dan.  This is just ridiculous.  This is the defense trying to set a bar so high that it could never be reached or almost never.  What this is about is the quality of the relationship.  And as you pointed out, if he said, if the jury believes that he said I lost my wife and these will be the first holidays without her, and before Laci ever went missing, if this is what he said to Amber and the jury believes it...

(CROSSTALK)

ALLRED:  ... that‘s pretty damning testimony. 

ABRAMS:  On the audiotape he concedes it.  Let me take a quick break. 

Gloria, Dean and Mickey stay with—Mickey is such a good friend of mine. 

You know I hope people don‘t feel sorry for Mickey now. 

(LAUGHTER)

ABRAMS:  All right.  Coming up, the prosecution may be hoping Amber Frey will get its case back on track, but after so many missteps, could she be enough?  We‘ll look back at some of the problems prosecutors have faced so far.  And we talked with someone who knows what the jurors might be going through.  The former Peterson juror once known as juror number five joins us. 

And later, three weeks after he reported his wife missing, Utah authorities charge Mark Hacking with her murder. 

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, we‘re live in Redwood City, California.  Amber Frey is set to testify in Scott Peterson‘s murder trial.  We‘re going to talk to the man formerly known as juror number five.  He was not convinced of the prosecution‘s case.  What might Amber say that could convince him?  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back in front of the Redwood City courthouse, where it‘s very quiet today.  Why?  Well, court was in recess again today so the defense could examine and maybe test some recently discovered evidence.  The delay not helpful to prosecutors, just the latest in a series of setbacks. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  California‘s attorney general once described the case as a slam-dunk, but the first 10 weeks of Scott Peterson‘s murder trial have been anything but. 

JOHNSON:  I don‘t think anybody can doubt that the defense is winning at this point. 

ABRAMS:  Prosecutors came in armed with a seemingly powerful circumstantial case.  That Peterson told different stories about his whereabouts the day his pregnant wife Laci disappeared.  That weeks before he told his girlfriend Amber Frey that his wife was dead.  And that Peterson said on the day Laci went missing, Christmas Eve, he was fishing at the Berkeley Marina, 90 miles from their home, the same area where Laci and their unborn son Conner were discovered. 

JAMES BRAZELTON, STANISLAUS COUNTY DISTRICT ATTORNEY:  He puts himself at that location within a short distance of where the bodies were found.  That seems to be a fairly significant piece of evidence. 

ABRAMS:  On his way home from the marina, Peterson left a cell phone message for Laci. 

SCOTT PETERSON‘S PHONE MESSAGE:  Hey beautiful.  I just left you a message at home.  It‘s 2:15.  I‘m leaving Berkley...

ABRAMS:  The state‘s case ran into trouble early on.  Each police witness discussed evidence they had found, Laci‘s hair on a pair of pliers on Peterson‘s boat, drops of Peterson‘s blood in their house and in his truck.  The defense was able to shift the focus to what the police did not investigate. 

BETH KARAS, COURT TV:  The judge is letting the defense resurrect leads that the police pursued and they ultimately debunked as going nowhere. 

JOHNSON:  The jury begins to wonder if they failed to go down this road or if they didn‘t produce this piece of evidence, what else might be out there? 

ABRAMS:  Juror Justin Falconer was dismissed after 14 days of the prosecution‘s case. 

UNIDENTIFIED MALE:  Yes, he lied about a couple things that you know we saw in there, but I haven‘t seen anything that, you know, would make me believe that, you know, he committed this crime. 

JANEY PETERSON, SCOTT PETERSON‘S SISTER-IN-LAW:  This is just such a relief to our family to see that he‘s sitting in there and he‘s seeing the truth and the truth is Scott is innocent, he‘s going to walk out the door, we‘re all wasting our time. 

ABRAMS:  But as the defense has cross-examined witness after witness they‘ve offered different and sometimes conflicting theories about who might be the real killer, from unidentified transients to Polynesian gangs, to a woman who robbed the Peterson home a month after Laci went missing. 

UNIDENTIFIED FEMALE:  If there are jurors who are leaning on the prosecution side, they may be saying what is this, you know he‘s just trying to get us off of Scott Peterson, this doesn‘t mean anything, there‘s nothing tying a methamphetamine addict or some Pacific Islanders to the abduction or murder of Laci Peterson. 

ABRAMS:  And much of the prosecution‘s strongest evidence is still to come, like an expert who specializes in tidal currents. 

JOHNSON:  That expert should be able to say look, these two bodies washed up at two fixed spots on the San Francisco Bay.  They most likely were put in somewhere around Brooks Landing, which is exactly where Scott Peterson said that he was fishing. 

ABRAMS:  And then there‘s the $15,000 in cash Peterson was carrying when he was arrested a half-hour from the Mexican border.  His hair dyed, his clean shave traded in for a goatee, survival gear and his brother‘s identification found in his car.  But maybe the most sensational witness yet to testify—Peterson‘s girlfriend, Amber Frey, who secretly tape-recorded hours of conversations with him. 

UNIDENTIFIED FEMALE:  We‘re going to hear about how he was talking to her, the lies, the promise that we‘re going to be together almost exclusively by the end of January. 

ABRAMS:  And Frey‘s attorney, Gloria Allred, says the defense won‘t be able to discredit her client. 

ALLRED:  Scott Peterson‘s own words to Amber Frey are going to be what are important in this case.  I think he will be his own worst witness against himself. 

(END VIDEOTAPE)

ABRAMS:  All right.  Let‘s go through some of the big mistakes.  Let‘s get the specific here that the prosecution has made.  First of all, in opening statements they said this business about the meringue that Scott Peterson said he saw Laci looking at Martha Stewart on TV and that she was talking about meringue and the prosecutor said (UNINTELLIGIBLE) this proves that he‘s lying because Martha Stewart was never talking about meringue. 

Well it turns out that she was.  Then Detective Brocchini, one of the lead detectives, embellished his testimony it appears a little bit about one key element that police testimony that Peterson made homemade anchors and a pitcher, prosecutors insinuated that Peterson made the anchors and a specific pitcher in his warehouse, the defense showed that a prosecution witness expert discounted that.  Laci‘s yoga instructor‘s testimony included information that she never told police.  Then another witness‘ entire testimony was struck. 

So, there‘s certainly been a lot of missteps here by the prosecution, but my take—this is the prosecution‘s chance to put this case into overdrive.  If they can shape up now, they still have a chance at a conviction. 

All right.  Dean Johnson, you‘ve been sitting in the courtroom every day.  What do you make?  How big a deal have these mistakes been?  Are they surmountable? 

JOHNSON:  I think they‘re surmountable.  If you sit back and you catalog all of the good things that the prosecution has done and put together all of the evidence that points to Scott Peterson‘s guilt, it‘s still a very powerful circumstantial case.  The question is can they connect all of those dots into a coherent story?  And also now that Judge Delucchi has blown up at the prosecution and told the jury that they made a mistake...

ABRAMS:  Yes.

JOHNSON:  ... and it‘s cost them the testimony of one witness, is the jury going to believe any of the prosecution‘s evidence...

ABRAMS:  All right...

JOHNSON:  ... and give it any weight?

ABRAMS:  Mickey, what do you make of it?

SHERMAN:  I‘ve got to tell you—I agree that if they can have some really good days, they can still pull this out.  The defense can have 40 great days, but if the state has one great day, they can win, but I don‘t see it happening on the watch of Amber Frey.  I think they need her to hit a homerun and I don‘t see it in the cards.  All these conversations with no confession just to prove that he‘s, you know, a hound dog, doesn‘t make a lot of sense. 

ABRAMS:  Gloria, how good a witness will Amber Frey be? 

ALLRED:  She will be a truthful witness.  She will have...

ABRAMS:  But in person, when you talk to her, and you‘re one of the few people who has had a lot of conversations with her, I mean does she come across as someone who is authentic and truthful and someone who would generally be considered a good witness or is she kind of shaky and a little bit nervous sometime...

ALLRED:  One hundred percent sincere, authentic. 

ABRAMS:  Is she going to be able to take the punches? 

ALLRED:  You know she will sit there and she will do her duty and it‘s not going to be easy.  I mean who would want to be in the place of Amber Frey tomorrow? 

ABRAMS:  But is she the type of person that will be able to withstand the attack? 

ALLRED:  I think that she will be.  I think that she‘s ready.  I think that the tape recorded phone calls that will ultimately be played will be riveting, they will be compelling, and again, Scott‘s own words on the tape are going to be something that the jury is going to be very interested in hearing. 

ABRAMS:  Gloria Allred...

SHERMAN:  Dan, how about her relationship...

ABRAMS:  ... Dean Johnson and...

SHERMAN:  ... with that Fresno cop?  How about her relationship with that Fresno detective?

(CROSSTALK)

ABRAMS:  But you know so what?  I mean like—honestly—like—unless you‘re going to suggest that she killed Laci Peterson...

SHERMAN:  No.

ABRAMS:  ... who cares? 

SHERMAN:  But doesn‘t it show that maybe she was less than honest? 

ABRAMS:  About what? 

SHERMAN:  About knowing about whether or not this was the same Scott Peterson whose wife was missing before the 29th or the 30th

ALLRED:  It will be understood beyond any doubt whatsoever as far as I‘m concerned, that immediately upon learning that Scott Peterson was married and that Laci was missing...

ABRAMS:  Yes.

ALLRED:  ... she contacted law enforcement. 

ABRAMS:  All right.  We‘re going—thank you, Dean, Gloria, Mickey. 

When we come back, he may know what jurors need to hear from Amber Frey.  He spent several weeks of the case in the jury box.  We talk with the man once known as Peterson juror number five about what might be able to convince him.

(COMMERCIAL BREAK)

ABRAMS:  We are back.  Scott Peterson‘s former girlfriend Amber Frey expected to take the stand tomorrow.  Before we go to the man formerly known as juror number five, Justin Falconer, here is what we know she‘s expected to say. 

The specifics of her dates with Peterson, what they did, where they went, what he told her on those dates, such as Peterson claiming he was never married or had been in any close relationship before they began dating.  And then just a few days late when confronted with some information, Peterson told Frey, well, actually, I lost my wife, and that he would be spending his first holidays without her.  And that at the end of January, he‘d be able to spend a lot more time with her. 

Of course Laci went missing in December.  As for those holiday plans, well he told Frey he would be duck hunting with his father in Maine and Peterson told Frey he didn‘t want children.  That if he and Frey were to be together, her daughter was enough for him, and he would get a vasectomy. 

So, how will all of this play with the juror?  Justin Falconer was juror number five on the Peterson jury for 14 days before being dismissed and he joins us now.  Thanks a lot for coming.  Appreciate it.

JUSTIN FALCONER, DISMISSED PETERSON JUROR:  No problem.

ABRAMS:  All right, so assuming that she says all of that, all right, let‘s assume for a moment that is what she is going to say, forget about him being like you know a sort of dirty dog cad type, what about the fact that this seems to show some premeditation, about saying his wife is dead, saying he‘s going to be able to spend a lot more time with her in January and you know you‘ve been very, very doubtful of the prosecution‘s case, but if she says all that, would that be all persuasive to you? 

FALCONER:  It would be persuasive, but I think the prosecution would really need to pull all that in and be really strong when they stand up and they put that in front of the jury and I think if they can do that in such a way that the defense doesn‘t really have a chance to come back and tear it apart, I think if they do that, then there‘s a really good chance she‘ll be a strong witness for the prosecution. 

ABRAMS:  But they are going to cross-examine her and they are going to say that she‘s a woman scorn and they are going to suggest that maybe she knew earlier than she says, that it was the Scott Peterson she knew, et cetera.  Is that cross-examination going to sort of take away from the effect of her testimony? 

FALCONER:  Absolutely.  I think if they can tear her apart and punch holes into her story and stuff and...

ABRAMS:  But it‘s on tape.  But I mean...

FALCONER:  It is...

ABRAMS:  ... let‘s just take two facts.  If it‘s on tape that he said my wife is dead in early December, and he says—that he admits that he said to her they‘d be able to spend more time at the end of January, isn‘t that in and of itself, forget about everything else, pretty powerful? 

FALCONER:  Yes, it is.  I think it is absolutely, but like I said, it depends upon the spin the defense can put on it. 

ABRAMS:  But as a juror, I mean if you were to hear that, would it be spin?  I mean would you just view it as defense spin or would you say wait a second, maybe I can‘t trust anything she‘s saying even if it is on tape? 

FALCONER:  You can.  If the defense comes up and they start really poking holes in the story and show her to be un-credible, then yes, I can look at the whole, you know story that she‘s saying and say I can‘t trust what she says...

ABRAMS:  Even if it‘s on tape? 

(CROSSTALK)

ABRAMS:  Even if Scott Peterson is on tape? 

FALCONER:  If it‘s on tape, I mean you know you‘re listening to it and as long as it‘s the whole tape and not, you know, pieces and parts of it, then that‘s, you know that‘s going to be very strong evidence. 

ABRAMS:  Let me ask you straight out, let‘s assume that things turn for the better for the prosecutors now, do you think that there‘s any way that there will be a unanimous verdict of guilty for prosecutors in this case? 

FALCONER:  I don‘t think so.  I think...

ABRAMS:  No way.  No matter how good the evidence, no matter how much evidence they focus on, where the bodies were found, 90 miles away from the home exactly where Scott Peterson says he was fishing, all of that, Amber Frey‘s testimony coming in well, still you don‘t think based on sitting on that jury there will be any way there will be a unanimous verdict? 

FALCONER:  I don‘t think there will be.  I think there‘s too much doubt.  The prosecution has slipped up so many times.  They‘ve been in so much trouble with the judge and with you know evidence that they‘ve missed up, and their witnesses have lied, they‘ve lied, I mean I think there‘s just so much doubt in the minds of the jurors right now... 

ABRAMS:  And what makes you say that about the other jurors?  I mean why do you feel so strongly that the other jurors will feel the way you did? 

FALCONER:  I think, you know, I just think that I‘m going off of how I

felt and if that‘s any indication of what they‘re feeling, then I have to -

·         that‘s the only thing I have to base it on.  But if they‘re feeling any way close to what I‘m feeling...

ABRAMS:  And then there would be no way, no matter what happens from now on, that the prosecutors will be able to get a unanimous guilty verdict? 

FALCONER:  Well the prosecution has a serious credibility issue and you know I think that the more and more as time goes on, the bigger that problem becomes, this with their latest you know problem where the judge blew up at them and told them you know that they‘ve been screwing up, so I think the jury has got some you know serious issues with the prosecution...

ABRAMS:  Yes, well, all the prosecution could hope is that they don‘t have everyone like you on the jury. 

FALCONER:  Well...

(LAUGHTER)

FALCONER:  ... they could hope. 

ABRAMS:  Justin Falconer thanks a lot...

FALCONER:  Thank you.

ABRAMS:  ... for coming on.  I appreciate it.

ABRAMS:  Coming up, chilling new details about al Qaeda plans to attack the U.S. and the detailed surveillance they conducted to carry it out.  What can authorities do if an alleged terrorist or anyone for that matter is seen casing a target?  Is there any way to stop the person? 

And Mark Hacking charged with killing his wife Lori, even though police are still searching for her body in a Salt Lake City landfill. 

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, new specifics about al Qaeda plans to attack the

United States and the detailed surveillance they conducted to carry it out

·         so detailed they knew who worked on every floor of certain buildings. 

First a look at the headlines. 

(NEWS BREAK)

ABRAMS:  Welcome back.  We‘re getting new details about just how extensive al Qaeda surveillance of buildings in New York, New Jersey, and Washington D.C. was.  Remember, information officials obtained from an al Qaeda operative they arrested last month caused that terror threat level to be raised last week for the buildings.  Well now we‘re also learning about other ways al Qaeda may have planned to attack targets inside the U.S.

NBC‘s Brian Moore (ph) has the latest. 

(BEGIN VIDEOTAPE)

UNIDENTIFIED REPORTER (voice-over):  A week ago, the threat warning escalated in Washington, New York, and New Jersey, but officials released very little detail.  Now, new information is emerging on what authorities say was a very real threat.  U.S. officials revealing the evidence that led them to believe terrorists were eyeing America‘s financial centers in what may have been a preelection plot. 

REP. DENNIS HASTERT (R-IL), HOUSE SPEAKER:  Our financial institutions, they had cased.  They knew what was on every floor.  They knew the employees that worked there.  They knew how many people walked by the windows every day. 

FRANCES TOWNSEND, HOMELAND SECURITY ADVISER:  Certainly, when you look at these surveillance reports, they‘re so detailed, it had to be done by someone who had access to those targets. 

UNIDENTIFIED REPORTER:  Was it a stand-alone attack or part of a more elaborate plan to strike America?  Officials say there is evidence terrorists may have been planning to use tourist helicopters or limousines packed with explosives to attack New York and in Washington, the U.S.  Capitol may have been a target, leading to last week‘s decision to tighten already tight security. 

SEN. JOSEPH BIDEN (D), DELAWARE:  Some members of Congress may be targets and that the Capitol is a target as well. 

UNIDENTIFIED REPORTER:  U.S. officials say the many developments over the last week come from one water shed intelligence coup, the discovery of an al Qaeda computer in Pakistan.  Information on that computer lead to the arrest of more than a dozen suspected terrorists, including Esa al-Hindi, said to be a major al Qaeda player in Europe.  But did they foil the plot?  Officials say they‘re hopeful but still can‘t say for sure. 

Brian Moore (ph), NBC News, Washington.

(END VIDEOTAPE)

ABRAMS:  So the question, you know, a lot of this involves staking out, people literally looking at these buildings, taking notes, et cetera.  How can you prevent someone from staking out a building?  Are there laws that make it illegal, for example, to sit there and case a skyscraper day after day? 

Joining me now, former FBI special agent Christopher Whitcomb and former federal prosecutor Scott Mendeloff, who was one of the lead trial lawyers on the prosecution of Timothy McVeigh. 

All right, Scott, as a legal matter what is the law?  I mean there has got to be a way to stop people from casing these places, right? 

SCOTT MENDELOFF, FORMER FEDERAL PROSECUTOR:  Well there is and there isn‘t.  The law is based on a case by the Supreme Court called Terry v.  Ohio and it really—it allows the police to stop somebody who‘s engaging a suspicious manner, but the police have to have what‘s called reasonable articulable suspicion. 

OK, what does that mean?  That means the police based on their experience, their joint experience, their collective experience, the experience of all the police, all the agents, and the people that are watching these supposedly suspicious people, think something is wrong, they can walk up, talk to them, stop them, find out what their identities are, but then they have to let them go. 

ABRAMS:  Can they, Scott, take into consideration race or ethnic dissent?  For example, let‘s say there‘s someone of you know Arab dissent who is taking notes in front of a skyscraper, can they, when you said articulate, can they use that or is that simply unacceptable to suggest that they‘re going to be determining who they stop based on what the person looks like? 

MENDELOFF:  They‘re not allowed to use that alone.  If that is all they have, that is not permissible, the stop will be thrown out.  If it‘s one of a number of different factors, including factors that are valid bases for suspicion, then yes, they can consider that. 

ABRAMS:  So Chris Whitcomb, how did the people and I understand the FBI is going to be doing things differently than the local police, but, you know, how does the agent assigned or how does someone who is, you know, on the street, make that determination?  How do they help stop these casings of U.S. landmarks and buildings? 

CHRISTOPHER WHITCOMB, FORMER FBI SPECIAL AGENT:  Well, Dan, the FBI relies on local law enforcement.  Many people don‘t realize that‘s a big part now of the federal campaign.  They are going to local law enforcement around the country and saying you guys are on the front lines every day, you‘re the first that‘s going to see something suspicious, we‘re going to rely on you.  You don‘t have FBI agents, Secret Service agents, ATF, DEA, all these federal agencies on the streets, so they have got to go to local law enforcement.

And as Scott said, there is a legal precedent, but when it comes right down to it, Dan, this is what people have always called a police officer‘s gut instinct.  If they see something that looks out of place on the street, they are going to intervene and they‘re probably going to detain someone.  It will give them time at least to identify them and it will take them off the street and maybe break up a plot. 

ABRAMS:  And Scott, can they then take—again, let‘s assume that they see someone who‘s been there the day before, and all they‘re doing is taking—they‘re taking notes about the building, people are walking by, they‘re taking notes.  They‘re standing there at the coffee shop taking notes.  Can they then get—look at the notes, get a chance to see what they‘re up to?  I mean I‘ve got to believe that with this new sort of war we‘re fighting, they‘ve also got to be new tools to fight the enemy. 

MENDELOFF:  Well, it‘s a sliding scale, Dan.  What happens is when they stop the person, they‘re allowed to stop them for two reasons, one, to find out who they are, and two, to dispel the suspicion.  If the person does not dispel the suspicion, then they have to make a determination about whether they‘re going to take them in to custody and then as a result of that look at the papers they have. 

ABRAMS:  Chris, give us a little background, pre-9-11, this was also a standard al Qaeda operating procedure, wasn‘t it? 

WHITCOMB:  Well, it was, Dan.  Look, there‘s nothing new in what we‘re

seeing here.  Is there an American anywhere in this country who doesn‘t

think al Qaeda is going to hit with us a car, a plane, some of the things

that we‘re seeing now?  This is not news to anyone.  It doesn‘t make sense

·         excuse me—it‘s not new to anyone that they‘re going to go out and they‘re going to survey these places. 

What does stand out is the amount of detail, obviously had someone in those buildings.  The FBI has said for some time they‘re looking at people like Anin al-Chuma (ph), people that they knew lived in the United States that had sympathies to al Qaeda and that could get into those places, obvious here.  Remember we‘re talking about information that‘s three or four years old and I think now we have to go back and look and say have they updated it.  They have got to take those databases they found in Pakistan, try to find if there were any connections in the United States and then try to follow up on that. 

ABRAMS:  And the—and Chris, the FBI is also going to go back and see who‘s working at all these places, right?  I mean they want to make sure there‘s not an insider there. 

WHITCOMB:  Absolutely.  Make sure that insider is not there anymore.  They know now that those people are not there, Dan and I‘ve spoken to many, many people in the federal law enforcement.  They say across the board that they don‘t really think there are organizations in the United States that they have to deal with right now, that they don‘t know about.  It‘s the rogue elements.  It‘s people that don‘t appear on any roster, that haven‘t had contact in the past, these rogue operators who have—share in the al Qaeda sentiments, those are the ones they‘re most worried about and those are the ones that are toughest to find. 

ABRAMS:  All right, Chris Whitcomb and Scott Mendeloff, thanks a lot for coming on the program.  Appreciate it.

WHITCOMB:  Thanks Dan.

MENDELOFF:  Thanks Dan.

ABRAMS:  Coming up, just minutes ago the Utah district attorney charges Mark Hacking for the murder of his wife Lori.  Coming up, a live report.  The question—could he face the death penalty? 

And on Friday, we showed you exclusive picture of Vili Fualaau returning home to Seattle after a judge lifted a no-contact order, which allows him to see his former teacher Mary Kay Letourneau.  A lot of you writing in about that case.  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  It was three weeks ago today that Mark Hacking called police to say his wife Lori had disappeared.  This afternoon a Salt Lake City prosecutor announced that Mark Hacking was charged with Lori‘s murder.  Hacking has been in custody since last Monday when he was arrested for investigation of criminal homicide.  And one of the key pieces of evidence so far Hacking‘s alleged confession to his two older brothers.  Said—he apparently said he‘d killed his wife, who may have been pregnant, with a single shot to the head. 

For the latest, let‘s go to Salt Lake City and NBC‘s Martin Savidge. 

Hi Martin. 

MARTIN SAVIDGE, NBC NEWS CORRESPONDENT:  Hello Dan.  This was a news conference that was held by the district attorney David Yocom in which he announced the formal charges that have now been placed against 28-year-old Mark Hacking and they are one count of criminal homicide, and three counts of obstruction of justice. 

Now with the one count of criminal homicide, that is a maximum, if he were to be found guilty, of five years, up to life in prison and I believe about a $10,000 fine.  He‘s got his first court appearance slated for tomorrow morning, that‘s 9:30 a.m. local time.  And he‘s not going to be there in person.  In fact, it‘s going to be one of those videoconferences done from the county jail. 

But then after all of that was revealed, the deputy—or district attorney then stepped forward and said this, the revelation of the murder weapon.  Here‘s David Yocom. 

(BEGIN VIDEO CLIP)

DAVID YOCOM, SALT LAKE CITY DISTRICT ATTORNEY:  The defendant stated that in the early morning hours of July 19, he walked into the bedroom where his wife slept and shot her in the head with a .22 caliber rifle.  He further stated that he wrapped Lori‘s body in garbage bags, placed the body in a dumpster at approximately 2:00 a.m., and then he further stated that he disposed of the gun in another dumpster. 

(END VIDEO CLIP)

SAVIDGE:  Authorities say that they have not retrieved the murder weapon, but that came as quite a shock.  Many people had heard the reports about the bloody knife and it was assumed by many that that had indeed been the murder weapon.  Now it turns out it was a .22 caliber rifle and a single fatal gunshot that was fired.  So, still some surprises in this case even three weeks later, Dan. 

ABRAMS:  Martin Savidge in Salt Lake City, thanks a lot.

All right, so with the brothers‘ statements on the record, no body or murder weapon yet, the question, of course, is how strong is the case but also can he face the death penalty?  It doesn‘t sound like it, but I‘m—let‘s ask. 

I‘m joined by former Utah state prosecutor Greg Skordas, who also served as director of the Salt Lake City District Attorney‘s Domestic Violence Victims Unit.  Thanks a lot for coming on the program.  Appreciate it. 

GREG SKORDAS, FORMER UTAH PROSECUTOR:  Thank you very much. 

ABRAMS:  So are we correct in understanding that he is not facing the possibility of the death penalty? 

SKORDAS:  Currently it‘s not.  This is not a capital offense.  It‘s a murder, and it carries with it five years to life in prison, but it does not carry the potential for death, it does not carry the potential for life without the possibility of parole.  It‘s a first-degree felony. 

ABRAMS:  And why is that?  I mean what more would the prosecutors have needed in order for them to have filed charges where Hacking would have been death-eligible? 

SKORDAS:  In Utah, we require both an intentional killing, which is what they have, plus an aggravating circumstance, and I suppose they couldn‘t find one or they couldn‘t find one that really fit and aggravating circumstance in a case like this might be the most compelling one, that is, that she was pregnant at the time.  That Mark knew that, and that they can prove that, but without finding her body, they can‘t do that.

But I‘ll tell you this, the more compelling reason why this is not a death penalty case is the family.  The family of the victim and the family of Mark, and I think that they both sat down with the district attorney‘s office and told him that they do not want this case to proceed as a death penalty case. 

ABRAMS:  And Mickey Sherman, is that a valid reason, do you think, for a prosecutor to pursue or not pursue the death penalty in a particular case? 

SHERMAN:  You know something Dan, I think it‘s the most valid reason.  In these times, very often dispositions of cases are victim-driven as well they should be.  We‘re very, very in tune to victim‘s rights and these families, these two families have really kind of set the high water mark for compassion, class, and civic responsibility.  You‘ve got two brothers who turned their brother in, knowing that he could face the death penalty and I think the state‘s attorney, the district attorney very properly took everything into consideration, met with the families, and they all seemed to agree, this guy was probably not insane, but obviously wacky enough, he didn‘t do things right and as somebody who shouldn‘t be executed, but will probably spend most of the rest of his life in jail. 

ABRAMS:  So Mickey, but now that that‘s off the table, is there any sort of deal that could be worked out here?  I mean it seems that once the death penalty is off the table, and life without parole is off the table, that there‘s really nothing for the prosecutors to deal here, right? 

SHERMAN:  Well, the thing is, he can‘t go backwards.  The—you know, Hacking is not going to be able to plead not guilty if in fact he‘s confessed, so I assume it‘s almost a fedecomp (ph) plea.  Now the question I would have for Greg, Dan, is can this charge be changed once he‘s been arrested? 

ABRAMS:  Greg.

SKORDAS:  It can be changed, and if you listen to the district attorney closely at the press conference, what he hinted at was not that it would be changed to a capital offense, but there could be one additional murder charge filed if the body is found and it‘s proved that she was expecting at the time.  Not that this would be upped to a capital offense, but there would be two murder charges. 

SHERMAN:  And...

(CROSSTALK)

SHERMAN:  ... between life without parole and just life? 

SKORDAS:  No, no, no.  That would be just two five-to-life and they could stack them on top of each other.  As silly as some people think that sounds that would increase by quite a bit the number of years that he would spend in the Utah state prison, but it would not—it would still be a parolable offense someday.

ABRAMS:  And I‘m assuming,, though, that the Utah Parole Board is pretty tough these days, right?

SKORDAS:  Yes.  I mean five years to life in a case like this is going to be more—much closer to the high end than the low.  This is a young man, don‘t forget.  I think he‘s 28 or something like that.  He‘s going to be a very old man if he ever walks out of the Utah State Prison. 

SHERMAN:  Greg, what is the high end?  What does life mean out there? 

SKORDAS:  That‘s a great question, because for example, armed robbery is a five to life.  Your violent sex crimes are five to life and those offenders will serve 10, 15 years, but on a murder case it‘s hard for me to imagine in 22 years or recall, that is, a murderer that has been paroled in Utah.  Now this is a young man, like I said...

ABRAMS:  Yes.

SKORDAS:  ... maybe 20, 30 years from now, the community will forgive, but it doesn‘t happen often here. 

ABRAMS:  All right, I‘ve got to wrap it up.  This is why I invite Mickey Sherman on the show.  He asks all the questions that I should have asked.

SHERMAN:  Sorry Dan.

ABRAMS:  Mickey Sherman and Greg Skordas, thank a lot for coming on. 

Appreciate it. 

SKORDAS:  Thank you.

ABRAMS:  All right.  Coming up, why I feel sorry for Scott Peterson‘s former girlfriend Amber Frey.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, why I feel sorry for Amber Frey.  Stay with us.

(COMMERCIAL BREAK)

ABRAMS:  My closing argument—why I feel sorry for Amber Frey, Peterson‘s girlfriend, expected to begin testifying tomorrow, she‘ll be a crucial witness for the prosecution.  She audiotaped hours of conversations with Peterson where he made statements about his wife being dead and being able to see Amber more in January, the month after Laci disappeared.  The defense will try to portray her as a scorned woman, as an angry woman out to get the man who lied to her. 

I‘m sure she is angry and I‘m sure she feels scorned.  I‘m sure she‘s furious about being lied to, about being completely deceived by a man who she loved.  Whether he loved her or not is irrelevant, he wooed her, tried to make her fall for him.  She did and now I expect she‘ll be attacked and ridiculed by the defense for that.  I feel sorry for Amber Frey because no matter what she‘s done in her life, she doesn‘t deserve this. 

Not only was she fooled and then humiliated and then scrutinized and then placed at the center of this media circus, now the defense may even suggest she was somehow involved in Laci‘s murder.  One thing she should feel grateful for, the fact that much of it is on tape, otherwise the defense would have—would be saying she‘s lying about everything.  Amber Frey has resisted the temptation of TV interviews, big bucks in the tabloids.  No, she‘s done exactly what some snobs would say people of higher socio-economic background would or should do, just say no. 

Amber Frey may leave this case a disgraced woman but no matter what, I‘ll always feel sympathy for what she has been forced to endure and if she tells the truth and nothing but the truth, she should walk away proud that she survived the ordeal. 

All right, I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  On Friday, I had an exclusive interview with the former attorney general, Janet Reno, and I asked her take on a whole series of issues—war on terror, Patriot Act.  Not all my viewers happy with her. 

Mark Luedtke writes, “You asked the hard questions and followed up.  She lied and spun, but you did your job.  I also thought you did a good job asking her about Ashcroft and the Patriot Act.”  Well thanks a lot.

Also on Friday a Seattle court lifted a no-contact order that prevented Vili Fualaau and his former teacher and lover Mary Kay Letourneau from seeing each other.  Now she‘s been released from prison after serving seven and a half years for child rape.  I said the order had to be lifted because he‘s an adult now. 

Raymond Shanley from Utica, New York.  “Mary Kay Letourneau raped a 12-year-old.  Allowing her to reestablish contact with the boy, regardless of the fact that he‘s now 21, only serves to romanticize the situation, creating a Romeo and Juliet fantasy for pedophiles everywhere.  Not good public policy.”

Maybe not.  The problem is it would make really bad law if they were to just say, oh, he‘s an adult and he can‘t see her. 

Anthony P. goes into our sort of here I‘m going to be pandemic file, doesn‘t think Mary Kay Letourneau is a pedophile.  “I‘m sick of hearing people call Mary Kay Letourneau a pedophile.  People should use the term ephebophile, not pedophile.  If the victim was a year younger, then pedophile would be correct.”

Well, Anthony, I‘m not 100 percent sure that‘s entirely correct.  We looked it up.  According to the Wikopedia, an online encyclopedia, ephebophilia is the sexual attraction of an adult to adolescence, meaning people who have gone through puberty.  Pedophilia, the attraction to those who haven‘t yet reached puberty, but if I had used the word ephebophilia, I promise you I would have had stacks of e-mails of people writing to me saying what are you talking about?  If I have to choose between using a word that isn‘t 100 percent technically accurate and a word that no one

including me even knew, I`m going to go with the one that I understand.

Your e-mails abramsreport@msnbc.com.  Thanks for watching.  "HARDBALL" with Chris Matthews next.  Amber Frey on the witness stand tomorrow.  We`re here live in Redwood City.

END   

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