updated 8/19/2004 9:36:24 AM ET 2004-08-19T13:36:24

Guest: Leslie Crocker Snyder, Geoffrey Fieger, John Burris, Mickey Sherman, Joshua Sondheimer, Scott Silliman, Rev. Jerry Falwell 

DAN ABRAMS, HOST:  Coming up live from Redwood City, California, what could be a major development in the Scott Peterson trial.  So major that Amber Frey‘s cross-examination put on hold. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  After an hour in chambers with lawyers from both sides, the judge orders jurors home for the day so attorneys can investigate the Amber-related development. 

Plus, he reenlisted in the National Guard after a tour in Iraq.  He only wanted to serve another year.  Now the Pentagon says he and many others have to stay longer.  Now he‘s taking the Pentagon to court. 

And Jerry Falwell opens a law school to train lawyers to fight for conservative causes.  Isn‘t law school supposed to train lawyers to fight for all sides?  The reverend joins us for a debate. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, it was supposed to be the day of reckoning for Amber Frey.  She was supposed to go face to face in the Redwood City courthouse behind me.  Not just with her former lover Scott Peterson, but with his lawyer Mark Geragos.  And after days of hearing her secretly taped conversations with Scott Peterson played for the jury, a withering cross-examination was in store. 

But then Judge Alfred Delucchi arrived at the courthouse an hour late, at least in the courtroom, and sheepishly told the jurors no court today.  And I quote “There‘s been a potential development in this case that has to be checked out,” he said.  And in a late development just a few minutes ago, we learned court has been canceled for tomorrow even though Judge Delucchi had planned to call three other witnesses. 

Now here is what I know from my reporting here.  Defense attorney Mark Geragos was seen meeting with Detective Steven Jacobson who was in charge of the wiretaps as well as the D.A.‘s earlier today.  Now the defense clearly believes at this point that there is more to the story of the wiretaps than they are hearing.  Information or possibly even tapes that they should have received. 

“My Take”—this may be just another prosecution slip up.  We‘ll have to see.  But this is also a judge who I fear is letting this case slowly but surely slip out of his grasp.  Yes, things happen.  Yes, things have to be checked out.  This is the second development, though, that has brought this trial to a screeching halt.  If I were the prosecution, I would be very unhappy about this latest belay. 

Let‘s get to our legal team.  We‘re going to play more of the tapes as well.  We got an all-star team tonight—former New York State judge and NBC News analyst Leslie Crocker Snyder...

LESLIE CROCKER SNYDER, FORMER NY STATE JUDGE:  Hi Dan. 

ABRAMS:  ... criminal defense attorney—hey Leslie—Geoffrey Fieger, California criminal defense attorney John Burris and Mickey Sherman who is also a criminal defense attorney.

All right.  Leslie, this development can‘t be good news for prosecutors, can it? 

CROCKER SNYDER:  Well, you know, having been a judge for 20 years, there is so many times when one side or the other raises the specter of something being really serious and you are worried about the record and you are worried about proceeding.  It‘s a long case.  It‘s a national publicity case.  It could be nothing.  I don‘t have any inside information.  So until we know what it is, it could be just the judge being cautious.  You hate to tell the jury go home, but it‘s better than screwing up your record. 

ABRAMS:  Yes, I don‘t know.  Geoffrey Fieger, what do you make of it? 

GEOFFREY FIEGER, CRIMINAL DEFENSE ATTORNEY:  Well I think I go along with you, Dan.  The part I wouldn‘t like if I was the prosecutor, this kind of takes the wind out of the sails a little bit because I really don‘t think Geragos was going to—or be able to do anything with Amber Frey, so I agree with you. 

But I don‘t like the words Delucchi used either, that a possible development.  I really think he should have simply said we‘re not having court today rather than allude to something that at least the jury speculates in their own mind about.  You know we know there was a delay.  Geragos is testing that tarp because of the death smell apparently that detectives claimed existed on a plastic tarp. 

I doubt there‘s anything there.  And I doubt—I agree with Leslie.  I doubt there‘s anything here now.  But I wouldn‘t want the jury to go home thinking some new development has come up and somebody has confessed to this crime and it‘s not Scott Peterson.  That wouldn‘t be good for the prosecutor...

CROCKER SNYDER:  But...

FIEGER:  ... even for them to think that. 

CROCKER SNYDER:  You know, Geoff and Dan...

(CROSSTALK)

CROCKER SNYDER:  ... can I just say one thing?  I mean as a judge you really...

ABRAMS:  Yes, go ahead.

CROCKER SNYDER:  ... you hate to say to the jury, we‘re not having court today.  You always feel that you have to say something, even if it‘s not exactly the whole truth.  So I think that‘s the why the judge would say that and I also think this is such a long case, it won‘t matter.  And frankly, with this prosecution as bumbling as it‘s been, I don‘t really feel too sorry for them. 

(CROSSTALK)

ABRAMS:  All right.  Here is what Gloria Allred, the attorney for Amber Frey, had to say about the developments.

(BEGIN VIDEO CLIP)

GLORIA ALLRED, AMBER FREY‘S ATTORNEY:  It certainly was a surprise to me as well because when we came into court this morning, we expected that she would be on the witness stand for cross-examination. 

(END VIDEO CLIP)

ABRAMS:  John Burris, what do you make of it? 

JOHN BURRIS, CRIMINAL DEFENSE ATTORNEY:  Well, I do think that in terms of a delay that it‘s never—this kind of delay, this ongoing nature of this trial, I think is not good for the prosecution.  Because when you have these cases that stretch out and you don‘t have a case where you have substantial evidence where people can hold onto, the circumstantial evidence, I think you can get lost in the shuffle here.  So from the defense point of view, whether it‘s creative or not, it‘s a good thing for them.  At the end of the day I do think there‘s probably some questions around prosecutorial failure to turn evidence over because the defense really wants to know—make sure they have all of the tapes for purposes that they can use for possible cross-examination.  So I think it‘s probably...

FIEGER:  Hey, we‘re missing the good part of this...

ABRAMS:  And Mickey...

FIEGER:  We‘re missing the good part of this.  Gloria gets to be on the public stage and hold press conferences for another week. 

(LAUGHTER)

ABRAMS:  All right.  All right.  All right.  Mickey, does it mean anything that Jacobson is meeting with Mark Geragos?  Steven Jacobson is the guy who signed all these wiretap warrants.  He‘s like the guy in charge of the wiretaps.  Does it mean anything that he‘s seen meeting with Mark Geragos? 

MICKEY SHERMAN, CRIMINAL DEFENSE ATTORNEY:  Absolutely. 

UNIDENTIFIED MALE:  Yes.

SHERMAN:  I mean I‘ve been one of the few people who said that I think that Geragos is going to do a decent job because I think that he‘s going to find stuff that wasn‘t turned over to him, tapes that weren‘t produced and basically that she has not been honest with her own people.  And I think, you know, this does not bode well for the state, to answer that first question out of the box, this is not good for the state. 

It‘s the appearance of a discovery violation.  It appears as though they are hiding the ball and the judge is somewhat buying into it by gingerly telling the jury well we have an important development here.  The jurors take that very seriously.  And it‘s not going to be a development that they would think is good for the state...

CROCKER SNYDER:  But Mickey...

SHERMAN:  ... that it‘s not their turn...

CROCKER SNYDER:  Mickey, Mickey, how can the jury have any clue whatsoever as to some important development?  They don‘t know who is meeting with whom on the defense and prosecution team. 

SHERMAN:  Good question Leslie and let me answer that.  The reason is that because when this trial started, the jury has to believe that OK, the state has their case and they‘re going to put it on.  And if there are now developments that cause a delay, that hurts the state because it would appear to the jury, I think, that the state didn‘t have their act together. 

CROCKER SNYDER:  But it‘s so obvious...

ABRAMS:  All right...

CROCKER SNYDER:  ... that the state doesn‘t have their act together...

SHERMAN:  Yes.

CROCKER SNYDER:  ... and that‘s been a consistent...

ABRAMS:  All right.

CROCKER SNYDER:  ... fact. 

ABRAMS:  At least we all agree on that issue.  Everyone is going to stick around because we‘re going to play more of the tapes of Amber Frey and Scott Peterson.  We‘re going to talk about which issues the defense may try and focus on for her cross-examination.  My legal team sticks around.  And one of the final phone calls a teary-eyed Scott Peterson pleads with Amber to see him one more time. 

(BEGIN AUDIOTAPE)

SCOTT PETERSON, ON TRIAL FOR MURDER:  There are so many things I want to tell you.  God, it‘s unbelievable.

AMBER FREY, SCOTT PETERSON‘S FORMER GIRLFRIEND:  So tell me now what?

PETERSON:  I can‘t, sorry.

FREY:  Why?

(END AUDIOTAPE)

ABRAMS:  And we heard Amber confront Scott about his missing wife.  Now we know what Laci Peterson‘s mother had to say to him and it is not pretty.  We‘ll bring it to you.

And your e-mails.  Send them to abramsreport@msnbc.com.  I‘ll respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Scott Peterson‘s last request to see Amber Frey in person and some strong words from Laci Peterson‘s mother.  Got the transcripts as she confronts Scott about where her daughter is.

(COMMERCIAL BREAK)

(BEGIN AUDIOTAPE)

PETERSON:  I hope to talk to you in the future.

FREY:  OK Scott.

PETERSON:  Goodbye for now.

FREY:  (UNINTELLIGIBLE)

PETERSON:  Goodbye for now.

FREY:  Good life now?

PETERSON:  Goodbye for now.

FREY:  Goodbye Scott.

(END AUDIOTAPE)

ABRAMS:  Oh, sweet goodbyes between Scott Peterson and Amber Frey. 

That was the last conversation, one of the last conversations Frey recorded.  She recorded a few more over the next couple of weeks.  Nearly two months after Laci was reported missing. 

(BEGIN VIDEOTAPE)

FREY:  I think it would be best if you and I didn‘t talk anymore until there‘s resolution in this...

PETERSON:  Yes, I agree with that.

ABRAMS (voice-over):  This came only days after a teary Peterson pleaded with Amber to see him one more time. 

PETERSON:  There‘s so many things I want to tell you.  God, it‘s unbelievable. 

FREY:  So tell me now, what?

PETERSON:  I can‘t, sorry.

FREY:  Why?

PETERSON:  Not over the phone, Amber.

ABRAMS:  Moments earlier she had confronted him again about his missing wife. 

PETERSON:  You know I‘m not a monster Amber.

FREY:  I never said you were Scott.

PETERSON:  Thank God I know, but you know I could never hurt you or her or anyone.

ABRAMS:  This nearly two weeks after Amber went public about their affair. 

FREY:  Scott told me he was not married.  We did have a romantic relationship. 

ABRAMS:  Peterson even called her afterwards to praise her courage. 

PETERSON:  I was so in awe I guess, so proud of you when you did that. 

It also made me, well I pulled over and threw up when you cried.

ABRAMS:  But near the end, Peterson seemed concerned his conversations were being recorded even calling from a pay phone as he tried in vain to keep their relationship alive. 

PETERSON:  I just need to tell you how much I care about you and I desire so much to be for the rest of our lives, your best friend, your biggest comfort. 

(END VIDEOTAPE)

ABRAMS:  I‘ve got to tell you—I can‘t get enough of the tapes.  I could just listen to that stuff again and again and again.  All right.  So, number—let‘s listen here.  Because I want to play another piece of the tape.  Here‘s why.  Because some of this is the reason that Mark Geragos will be allowed to cross-examine Amber Frey about some previous relationships she has had. 

In fact, on the tapes she talked about another man who had lied, she said, to her about his wife.  His name was Dave.  Let‘s listen. 

(BEGIN AUDIOTAPE)

FREY:  First...

PETERSON:  Amber...

FREY:  ... let‘s see first Dave.  My friend Davie lies to me about his wife...

(CROSSTALK)

FREY:  ... and I cried to you and tell you about this.  You know, it‘s just a recurrent pattern in my life of being (EXPLETIVE DELETED) again.  You know when I told you about Dave lying to me about his wife dying, why couldn‘t you have even told me then?

PETERSON:  Yes.

(END AUDIOTAPE)

ABRAMS:  John Burris, this means now that the defense gets to ask everything they want about her relationship with Dave.

BURRIS:  I think they have a right to explore the scope of that relationship, particularly as it relates to the questions of her naivety of believing that he was in love with her and that she did not know he was married to the extent there is some relevancy around that.  I don‘t think it‘s substantial... 

ABRAMS:  How is it relevant?

(CROSSTALK)

ABRAMS:  Explain to me even theoretically. 

BURRIS:  Theoretically...

ABRAMS:  Yes.

BURRIS:  ... I suppose it goes to her own sense about whether she is being truthful around some of these issues at the very outset when she said she didn‘t know much about who he was and was being lied to.  It‘s only a small point that goes to credibility.  And I think that the defense is going to do whatever it can to get to her credibility for purposes of really trying to besmirch her as best they can. 

There is not a lot of areas they can do around her, but given that there are some other wiretaps where she—that they have not played, Geragos may want to play those to see whether or not she was, in fact...

ABRAMS:  Yes.

BURRIS:  ... being a police operative...

ABRAMS:  All right.

BURRIS:  ... for herself or for them and being duplicitous in this.  I think any duplicitousness she can get—that he can get from her that will hurt her credibility the more he wants.

ABRAMS:  Judge Snyder, I want you to listen to what I am about to play and tell me whether this opens the door to the defense trying to attack Amber as a bad mother.  Let‘s listen. 

(BEGIN AUDIOTAPE)

FREY:  I have done everything possible from day one when Anthony told me he wanted nothing to do with his baby. 

PETERSON:  Oh Amber.

FREY:  I did everything possible to protect my baby and me.

PETERSON:  I know it.

FREY:  And I told you this.  I told you—I work 40-plus hours a week because I wasn‘t going to ask for any help from anyone and I did this...

(CROSSTALK)

FREY:  ... on my own.

(END AUDIOTAPE)

ABRAMS:  Again, Judge Snyder, what the judge here ruled was that the defense could inquire about relationships that were discussed on the tapes.  Does this mean that her motherhood, her quality of being a mother is going to be a relevant issue? 

CROCKER SNYDER:  Well, I suppose that the judge will give some latitude as to the fact that she had the one child with someone who abandoned her.  She didn‘t have a father for the child.  And also that she allowed Scott Peterson around her child.  Also she spent the night with Scott Peterson and kind of left her kid with, I forget whom now, who had to call her and say that she had to go to work.  So, those questions will probably be delved into. 

But you know we‘re still going to come back to one fact that we‘ve all discussed over and over again.  It‘s Scott Peterson‘s words that are important here.  It‘s what he says.  It‘s his lack of emotion.  It‘s his setting up the missing wife before his wife goes missing.  It‘s his sicko this.  It‘s his disgusting, nauseating words. 

BURRIS:  But also he never made any admissions either...

CROCKER SNYDER:  No, he never made...

(CROSSTALK)

CROCKER SNYDER:  ... you know what? 

BURRIS:  ... there was substantial efforts by the police and through Amber for that to happen and he never did. 

CROCKER SNYDER:  He never made any admissions...

BURRIS:  So, you‘ve got to go both ways on...

CROCKER SNYDER:  Yes, but don‘t you think he knew that either he was being taped or there was every likelihood that he was being taped? 

BURRIS:  No, I don‘t think that he thought he was being taped with her because he wouldn‘t have engaged in that level of discourse for such a long period of time...

ABRAMS:  Oh, there‘s no question—wait a sec John.  There‘s no question he knew he was being taped in February.  I mean he‘s talking about going to pay phones to talk.  He‘s telling he can only talk with her about certain things...

BURRIS:  Yes...

ABRAMS:  ... on the phone.

BURRIS:  ... that is on his own phone.  I don‘t think—that‘s true on his own phone.  But when he‘s on pay phones and other kinds of—I don‘t think he thought that she was being taped on her end.  He may have thought he was being taped when he dialed from his own phone...

CROCKER SNYDER:  I think...

BURRIS:  ... but when he talked to her, I don‘t think he did. 

CROCKER SNYDER:  I think he may have thought...

ABRAMS:  All right.  Let me ask Mickey Sherman.  Mickey, I want you to listen to this piece of sound and remember, Scott Peterson initially saying how much he loves Amber—doesn‘t use the word love, but wants to be with Amber, have a future together.  Then he sort of seems to be taking it back and then he switches course again.  Here is the point where he seems to be saying to Amber well you know I think you might have had it wrong about you and me. 

(BEGIN AUDIOTAPE)

FREY:  So are you telling me none of this was going to ever happen for

·         with you and I?

PETERSON:  No, I don‘t, you know, I don‘t know.  I mean that‘s why they‘re possibilities.  You know, that‘s what we talked about was, you know, if and things like that.  And you thought of them as definitely going to happen then (UNINTELLIGIBLE).

(END AUDIOTAPE)

ABRAMS:  Does the fact that he goes from like talking to about their future to saying to her that she had it wrong to then going back and talking about how he wants a future together with her, does that help or hurt the defense, Mickey? 

SHERMAN:  I don‘t think it makes a difference.  By the way, are we being taped now Dan?  I‘m not sure.  You know it‘s just wacky...

UNIDENTIFIED MALE:  Yes, we are, right...

SHERMAN:  It‘s beyond bizarre.  And just to kind of go back to a couple of answers ago.  You know I agree with John Burris on most points, but not here.  I think to bring in the past associations, Dave and Anthony and Scott the new father, I mean, let‘s say it for what it is.  It‘s bad character evidence against her. 

UNIDENTIFIED MALE:  Right.

SHERMAN:  It‘s certainly not relevant to her credibility.  It is showing that she‘s maybe a bad person, maybe not the best mother, and he—

Mark Geragos is probably not going to go there directly.  He may just mention it and bring it out, but let‘s—basically they‘re putting in bad character evidence on Scott and now they‘re going to unload some on her...

BURRIS:  I don‘t think he should spend a lot of time...

ABRAMS:  Let me take...

(CROSSTALK)

ABRAMS:  Let me take a quick break here—quick break.  Everyone is going to stick around. 

Coming up, Laci‘s mother confronted Scott and she demanded to know—this is back when—where her daughter and unborn grandson are. 

And the Pentagon wants to extend his tour of duty, but a National Guard soldier who served in Iraq doesn‘t want to go back.  He says legally he shouldn‘t have to.  We‘ll have a debate with his lawyer. 

(COMMERCIAL BREAK)

(BEGIN AUDIOTAPE)

FREY:  From what I know Scott and this pains me to say, this was all a plan.  I was a plan in your --  before all this.  This was just a plan you had Scott.  You...

(CROSSTALK)

FREY:  ... the thing is you know where it went wrong for you, Scott, in this plan is that you didn‘t think the media would be so big and I‘d ever learn of this.  That‘s where it went wrong.  That it was so huge, that I did learn of this and that now where are you?

(END AUDIOTAPE)

ABRAMS:  Well it wasn‘t only Amber Frey who was confronting Scott Peterson in the weeks after he says his wife went missing.  Laci‘s family went a step further, flatly accusing him of having something to do with her disappearance and murder.

A transcript from January 16, 2003, the day before what you just heard, obtained by Court TV details what we can only assume was an extremely heated conversation between Peterson and his mother-in-law, Sharon Rocha.

Peterson:  I want her and our child home.

Rocha:  Oh shut up.  You‘re disgusting.  Did you know there‘s not a person in this town who wants to see your face?  Now you tell me where she is and then you can get the hell out of here.  Tell me where she is.  I want my daughter, Scott.  That‘s all I want from you.  I don‘t care what happens to you. 

Let me read some more of that before we keep going.  It‘s number 13 here.

Sharon Rocha says, stop lying.  I‘m tired of your lies.  You‘ve looked at me in the eye for weeks and you‘ve been lying to me.  You‘ve looked at me in the eye for years and have been lying to me and to Laci.  Now where is she?

Peterson:  I wish I knew.

Rocha:  You don‘t know.  Stop lying.  For once in your life take some responsibility and tell the truth.  Where is my daughter? 

Peterson:  I want her home mom and...

Shut up.  Don‘t tell me such stupid things.  You tell me where she is. 

Where did you put her?  Scott, tell me where she is.

I‘m sorry.

And you can run away and you can go do whatever the “F” (EXPLETIVE DELETED) you want, but you tell me where my daughter is. 

Peterson:  I‘m sorry.

I have every right to know where you put Laci.

Whew.  Geoffrey Fieger, I mean again, it seems that everyone is asking Peterson.  He‘s denying, denying, denying.  Can any of this help him? 

FIEGER:  No, that‘s not going to come in, by the way.  I have heard the actual tape.  It‘s—you did a good reading, Dan...

ABRAMS:  Thank you very much. 

FIEGER:  ... and it‘s even more heart wrenching than that.  You can hear the exasperation...

ABRAMS:  I‘ll bet. 

FIEGER:  ... the utter frustration and the helplessness of Laci‘s mom, but that‘s not going to come in and it‘s clear that it‘s not going to come in.  But nobody should be surprised, one, that he denies everything.  The courthouses are full of people who deny everything.  There are people who deny it—you know, you go into a jail—I once had a client come up to me, he said, Geoff, I‘ve got to tell you, I‘m the only guilty guy in this prison. 

(LAUGHTER)

FIEGER:  You know they deny everything.  So I mean this shouldn‘t surprise anybody. 

ABRAMS:  And Geoffrey, and that client was Kevorkian, right? 

FIEGER:  No, it wasn‘t.  It wasn‘t. 

(LAUGHTER)

FIEGER:  It wasn‘t Kevorkian, but he might have—he would have said it, too. 

ABRAMS:  Yes, exactly. 

CROCKER SNYDER:  You know Dan...

(CROSSTALK)

BURRIS:  Dan...

(CROSSTALK)

ABRAMS:  Mickey Sherman, go ahead Mickey.  Mickey Sherman, go ahead... 

SHERMAN:  What makes that conversation, which I think is horribly damning not because there‘s any confession or admission, there‘s not, but as Geoffrey points out the torment, the anguish, the absolutely heartbreaking rendering of this woman losing her daughter is enough just to poison the jury just on emotional rage alone.  But why is that less relevant than...

FIEGER:  It‘s not coming in, Mickey.  That‘s not coming in. 

SHERMAN:  But why is all of Amber‘s garbage coming in? 

FIEGER:  Because...

(CROSSTALK)

FIEGER:  Because of what he said...

ABRAMS:  I‘m going to let judge—let‘s let Judge Snyder answer that. 

Judge...

CROCKER SNYDER:  Well...

ABRAMS:  ... why is the rest of the—quote—“Amber garbage” coming in, in the words of Mickey Sherman...

CROCKER SNYDER:  Well, it certainly is garbage.  It‘s nauseating.  It‘s disgusting and you know, who knows what it means.  But because it is actually Scott who is talking about the relevant things that are going on in the case. 

FIEGER:  Motive.  Motive. 

CROCKER SNYDER:  Talking about...

FIEGER:  Comes in on motive. 

CROCKER SNYDER:  Well, you know what? 

(CROSSTALK)

CROCKER SNYDER:  I‘m not so sure that it‘s motive. 

(CROSSTALK)

FIEGER:  It does come in on motive...

CROCKER SNYDER:  I don‘t think it‘s motive...

(CROSSTALK)

ABRAMS:  It‘s premeditation. 

(CROSSTALK)

BURRIS:  How is it motive?   That‘s not motive...

FIEGER:  Oh wait a second.  She could be motive...

ABRAMS:  Wait a sec...

FIEGER:  No, no, Amber Frey—his relationship with Amber Frey. 

(CROSSTALK)

ABRAMS:  Geoffrey Fieger...

(CROSSTALK)

ABRAMS:  Geoffrey, go ahead. 

(CROSSTALK)

ABRAMS:  Geoffrey, Geoffrey, Geoffrey...

(CROSSTALK)

BURRIS:  That‘s character evidence. 

(CROSSTALK)

BURRIS:  I understand the motive question...

ABRAMS:  Hang on.  Let Geoffrey speak.  One—we have got to go one at a time.  Geoffrey, quickly...

FIEGER:  The relationship with Amber Frey is clearly a motive.  The prosecutor is entitled to bring in it and that‘s why it‘s admissible and any admission...

ABRAMS:  Let John respond.  I‘ve got 10 seconds...

(CROSSTALK)

ABRAMS:  John, go ahead.

BURRIS:  Then I don‘t disagree with you.  I thought we were talking about Sharon Rocha.  That I didn‘t think was—should come in... 

(CROSSTALK)

ABRAMS:  Right. 

BURRIS:  I think (UNINTELLIGIBLE) arguments you can make on a motive question.  I think it‘s really more not substantial motive - evidence.  I think it‘s far more...

ABRAMS:  All right.

BURRIS:  ... character evidence, bad character, but I don‘t agree that...

ABRAMS:  Got to...

BURRIS:  ... that‘s substantial motive at all.  A jury could disagree...

ABRAMS:  All right.  Well we shall see...

BURRIS:  ... but I don‘t see it that way.

ABRAMS:  I‘ve got to take a quick—got to take a break.  Leslie Crocker Snyder, John Burris, Mickey Sherman, thanks very much.

Coming up, the Pentagon is extending the tours of duty for many soldiers in Iraq.  One of them says enough is enough.  He doesn‘t want to go back.  He‘s suing the Pentagon.  We‘ll talk to his lawyer.

And Jerry Falwell thinks there aren‘t enough lawyers fighting for conservative causes.  He‘s not suing.  Instead, he‘s opening a new law school to train them.  He‘ll join us for a debate.

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, the Pentagon wants to extend his tour of duty, but a National Guard veteran of Iraq is suing now.  He says he does—should not have to go back.  His lawyer joins us for a debate, but first the headlines. 

(NEWS BREAK)

ABRAMS:  Iraq war veteran and National Guardsman who got fresh orders to return to the front says he‘s not marching anymore.  He won‘t be identified by name, but Sergeant—quote—“John Doe” has filed a suit in a San Francisco federal court to stop the administration‘s stop-loss policy, which allows the Pentagon to extend military terms of service.  Sergeant Doe is a nine-year veteran of the Army and Marine Corps who fought in combat in Iraq and says he suffers from a post traumatic stress disorder from his experiences. 

His suit claims that, among other things, Iraq no longer poses any threat of terrorism to the United States, that the stop-loss order bears no reasonable relationship to the threat of terrorist attacks against the United States.  And that the significant restraint the government seeks to impose cannot be supported by evidence that the restraint is necessary to respond to the threat of terrorist attacks against the U.S.

All right.  Bottom line, he‘s saying the government should not be able to force him to stay, to take this longer term.  “My Take”—I do feel sympathy for these hardworking people who have sacrificed so much for their country, who look forward to going home only to find out that they have more service ahead of them.  But when Sergeant Doe signed his standard enlistment contract, it included this clause. 

In time of national emergency declared by the president of the United States, I may be ordered to active duty other than for training for not more than 24 consecutive months.  President Bush declared a national emergency and an executive order on September 14, 2001.  That was the deal.  When I see references to an Iraq that no longer poses a threat of terrorism to the U.S. as part of the filing, whether I agree or disagree with that, it just makes me think this is a political more than a legal filing. 

But joining us now is Joshua Sondheimer.  He‘s the co-counsel for Sergeant John Doe, and Scott Silliman, a retired Air Force JAG attorney and currently a law professor at Duke University.  All right, Mr. Sondheimer, tell me why I‘m wrong on this one. 

JOSHUA SONDHEIMER, CO-COUNSEL FOR SGT. “DOE”:  Well, it‘s not a political case.  And the reference in the contract that you made certainly does allow veterans—or excuse me, reservists to be called to active duty.  But it doesn‘t permit the extension of their contracts.  If their contracts expire during that period, they are entitled to come home.  And so, you know, there are provisions of the contract that specifically address involuntary extensions of soldiers enlistment and they, consistent with the law, say that an enlistment can be extended only if there is a declaration of war or national emergency by Congress. 

ABRAMS:  You know, Professor Silliman, on its most basic level, what Mr. Sondheimer is saying is it‘s simply unfair when someone signs up for a job, there‘s a term that‘s agreed to that now they‘re basically changing the rules midway through.  What do you make of that? 

SCOTT SILLIMAN, AIR FORCE JAG, (RET.):  Well, with all due respect, Dan, I‘m going to have to disagree with Joshua on this.  Whether it‘s fair or not, that‘s up for public opinion.  Whether it‘s legal or not, I think you will find that the government has the authority under the stop-loss provisions to keep someone on active duty in time of an operational mission or emergency.  I‘m going to disagree with Josh that there‘s any requirement for a declaration of war.  The last declared war this county had was World War II and the courts have dealt with this issue before, so it‘s a question of is it prudent?  Maybe not.  Is it legal?  I think it clearly is. 

SONDHEIMER:  Well, there is a statute that specifically addresses involuntary extensions and it specifically does say that they can occur only during periods of war or national emergency declared by Congress. 

SILLIMAN:  Well, I think you‘re going to find, Josh, that when you look at the companion provisions around that one that you are citing, you are going to find that it‘s not required that there be a declaration of war.  And I think, as you know, Congress can clearly authorize anything that the president needs to do in a time of armed conflict and it doesn‘t have to be a declared war and it hasn‘t been. 

ABRAMS:  Mr. Sondheimer, let me come back to sort of the more basic aspect to this case.  I mean I had mentioned at the top that all the references to Iraq no longer being a threat to the United States made me read this and think, gosh, just a little bit political.  And then I also read in some of my research that your client has been advised informally that due to his post traumatic distress order, he would be relieved of the order to deploy for training with his unit anyway.  So why the lawsuit? 

SONDHEIMER:  Well, a couple of things.  To answer your last question, there‘s no guarantee that he‘s exempt from the stop-loss provisions.  He‘s -- the Army—the person who told him that he will be relieved at least temporarily from the order to go train and then to be shipped off may not ultimately have authority to prevent him from being stop loss.  So, you know, we have a client who—and we need to protect his interest.  So we still felt it was important to go forward with the suit because we need a guarantee that he‘s—that the military...

(CROSSTALK)

SONDHEIMER:  ... is going to stick to the obligation—the one-year obligation that they made to him. 

ABRAMS:  You think that the military should never have the authority then, apart from some sort of congressional declaration of war, which as Professor Silliman points out, hasn‘t happened since World War II.  Vietnam didn‘t count either.  So absent that, you believe that this whole provision is simply illegal, correct? 

SONDHEIMER:  That‘s correct.  And to address the first point you made, this is not a political suit.  And the laws that I mentioned have a history.  Back during the Vietnam War, the military was moving to extend enlistments during that time.  And they were relying on a declaration of emergency by President Truman for the Korean War, which obviously had nothing to do with Vietnam.  And Congress stepped in and they said, no, you can‘t do this. 

We‘re going to—they passed a law saying that involuntary extensions can be done only during a declared war or national emergency declared by Congress.  So really what‘s happening...

(CROSSTALK)

SONDHEIMER:  ... and what we‘ve argued in this suit is really it‘s a parallel.  The military is relying on an executive order signed a few days after September 11, which gives...

ABRAMS:  Yes.

SONDHEIMER:  ... the secretary of defense certain authority to take measures to defend the United States against the threat of terrorist attacks against the United States.  And no one can seriously argue that today that Iraq poses any threat of terrorist attacks against the United States. 

ABRAMS:  Well, I‘ll let Professor Silliman respond and then that will be the final word...

(CROSSTALK)

ABRAMS:  Go ahead...

SILLIMAN:  Dan, let me suggest that the stop-loss provisions that we‘ve been talking about really came out in 1983 long after the laws that Josh was talking about.  They have been used in the active duty force for a long time, normally for certain specialties that need to be kept on in times of armed conflict.  Now it‘s a question of there are a lot of guardsmen and there are a lot of reservists who are suffering and being away from their families.  But it‘s clear this is a provision, it‘s been used, it‘s not been challenged, it‘s been accepted, and I think the courts are going to find that it‘s legal whether it‘s prudent or not. 

ABRAMS:  Joshua Sondheimer and Professor Scott Silliman, thank you both very much for coming on the program.  Appreciate it. 

SILLIMAN:  Thanks Dan.

SONDHEIMER:  Thanks very much.

ABRAMS:  Coming up, a law school for conservatives.  Next week the Reverend Jerry Falwell is opening a law school to train attorneys not just to fight for conservative causes, but to teach them about the intersection of religion in the law.  Is that what law school is supposed to be for?  We‘ll debate in a moment. 

(COMMERCIAL BREAK)

ABRAMS:  Welcome back.  Most law schools offer prospective students the opportunity to learn about the law‘s interaction with business, public policy, family, politics, but one university that will begin to matriculate students for the first time later this month has an entirely different mission.  Liberty University in Virginia, founded by the Reverend Jerry Falwell, is one of the largest Christian universities in the country and starting this year, it plans on teaching students about faith and the law. 

The school‘s mission statement reads—quote—“Our purpose is to equip graduates in law with a superior legal education in fidelity to the Christian faith expressed through the Holy Scriptures.  The complete legal education is one in which students are trained from a perspective where the contemplation of truth about law is informed and animated by Christian faith.”

“My Take”—while law schools would not suffer from more conservative legal thinkers and I think Christian universities are an important part of our system of higher education, I would hope that this school is not viewed as a law school but as another option to study religion.  Law school should teach man‘s law, the Constitution written by men, not the scriptures.  Each has its place and I would expect that this school will never be accredited as a law school. 

Joining me now to debate is the Reverend Jerry Falwell, who founded Liberty University more than 30 years ago and back with me is attorney Geoffrey Fieger. 

All right, Reverend Falwell, tell me why you think I‘m wrong on this one. 

REV. JERRY FALWELL, LIBERTY UNIVERSITY:  Well, I think you‘re dead wrong from the start.  We—Liberty University is beginning its 34th year today.  We have over 20,000 students from 50 states, 80 nations.  The largest distinctively evangelical Christian university in the world, fully accredited, and we are starting the law school today for the first time. 

Classes begin next Wednesday.  There were 30 applicants, qualified applicants, for every faculty position we needed to fill.  We—hundreds of applicants for the student body.  We‘re starting 20 percent more student body than we planned to.  We are already approved by the state of Virginia.  We‘re already on the quest for regional accreditation as is the university and has been for years. 

And we are seeking ABA accreditation.  We‘ll meet all the academic standards, but we happen to believe that Christ is the fulfillment of the law and being a Christian university, we are attempting to do for evangelical young people what Notre Dame, Brigham Young provide for Roman Catholic and...

ABRAMS:  But it‘s different...

(CROSSTALK)

ABRAMS:  It‘s different when you‘re talking about under—Reverend

Falwell, it‘s different when you are talking about undergraduate education,

which I completely support.  You know look, I think there are a lot of

these—a lot of universities of many religions and have many purposes,

which I think are great in this nation, but law is different.  The law is

very specific as to rules that one has to follow and they‘re rules written

by man. 

FALWELL:  Well, Dan, the first laws were not written by man.  They were written by God and not just the Ten Commandments...

ABRAMS:  But those are not the laws—judges are not supposed to be upholding the laws of God. 

FALWELL:  Well the laws of America beginning with the New England Confederation, the state charters, all the statutes, all of them have their footing and their...

ABRAMS:  That‘s fine.  Footing is one thing...

(CROSSTALK)

ABRAMS:  I‘m not going to debate with you about footing.  Right. 

Right.  I‘m not going to debate with you about footing...

FALWELL:  ... and so all of our graduates will have to pass the bar just like any atheist would have to pass the bar.  All of our graduates...

ABRAMS:  All right.

FALWELL:  ... will have to meet ABA standards as our law school.  But we believe...

ABRAMS:  Geoff...

FALWELL:  ... that one can be a Christian and also be an excellent attorney—a matter of fact, we think...

ABRAMS:  Well I...

FALWELL:  ... a better attorney. 

ABRAMS:  Look, no one disagrees with that.  I mean come on, Reverend Falwell, you know that no one disagrees—well I hope no one disagrees with the concept of being a great Christian and also a great lawyer, but let me bring in Geoffrey Fieger who created the Geoffrey Fieger Trial Practice Institute.  Go ahead, Geoffrey. 

FIEGER:  Well Reverend Falwell, I think you‘d agree, though, that you‘re not talking about Christians being lawyers because there are thousands of good Christians who are lawyers.  You‘re talking about inculcating religion into the law and I guess then we‘d have a different ruling out of the students of your law school about, for instance, the Ten Commandments or the woman‘s right to choose or the right to die that exists right now in our secular society. 

And more importantly, Reverend Falwell, you‘ve got to understand the law schools that exist like yours that do exist are utter failures.  They exist in Riyadh and Jeddah and Teheran and they mix religion and the law.  And they‘re terrible.  They‘re terrible.  They‘re run by radical clerics and the deans are ayatollahs and imams and not lawyers. 

FALWELL:  Well Geoffrey, I want you to come down...

(CROSSTALK)

FALWELL:  ... and visit Liberty University School of Law in a year or two or three and I want you to meet our graduates, even our present student body.  None of them want theocracy.  None of them are radicals like the demeaning things you just described...

FIEGER:  Why is that demeaning? 

FALWELL:  These are men and women who believe in the laws of man, who believe in the laws of God, are committed to an inerrant bible, but also committed to the sanctity of the Constitution.  And yes, you‘re right, they will be working very hard to provide the other perspective to same-sex marriage legalization or the legalization of abortion on demand.  They will attempt to improve the culture, bring the nation back...

ABRAMS:  ... I don‘t mind that. 

FALWELL:  ... to the Judeo Christian...

ABRAMS:  I‘ve got to tell you, I don‘t mind that.  I don‘t mind lawyers who are going to fight for the causes you‘re talking about Reverend Falwell.  I guess my concern, Geoffrey, is simply who are they going to be reporting to?  I mean...

(CROSSTALK)

ABRAMS:  ... ultimately lawyers—go ahead, Geoffrey...

FIEGER:  It‘s antithetical.  The position (UNINTELLIGIBLE) and believe me, Reverend Falwell, you are identical to the people in the Muslim world that inculcates religion into the law, to its identical.  You just have a different religion than they are and you believe in a different God than they are.  But this is a—the law is secular. 

The First Amendment provides for a separation of church and state.  So as not to inculcate religious beliefs into the fundamental principal of our Constitution.  Therefore, we‘ll separate them.  You want to join them together, conjoin them and that is very dangerous. 

ABRAMS:  Reverend Falwell...

(CROSSTALK)

FALWELL:  Geoffrey, I would say...

ABRAMS:  Reverend Falwell...

FIEGER:  ... that you obviously have little knowledge of American history because the founding fathers from the day at the Constitutional Convention in Philadelphia in 1787 when Benjamin Franklin called them to prayer simply because they couldn‘t reach consensus to the present day every Congress congressional session opening with prayer.  The fact is this is a nation under God and the fact is that there was a time when most attorneys in this country were strongly and firmly committed to the Judeo Christian ethic.  We‘re going to produce a generation of attorneys who hopefully will meet you...

ABRAMS:  All right...

FALWELL:  ... in the courtroom out there and prove you wrong over and over again. 

FIEGER:  I‘ll still win in the courtroom...

ABRAMS:  I‘ve got to tell you...

(CROSSTALK)

FIEGER:  ... God doesn‘t help me in front of the jury, Reverend Falwell...

ABRAMS:  All right...

FIEGER:  The truth does. 

ABRAMS:  I‘ve got to wrap it up. 

(CROSSTALK)

ABRAMS:  I love having...

(CROSSTALK)

ABRAMS:  I love—these are two of my...

FALWELL:  Come to see us.

ABRAMS:  ... two of my favorite guests on the program.  Reverend Falwell, thank you very much for coming on the program.  Appreciate it.  Geoffrey Fieger, as always, thanks a lot.

Coming up, my “Closing Argument” about the Scott Peterson case.  Is this judge about to receive the Judge Lance Ito torch from the O.J. Simpson case?  It‘s coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, your e-mails on the Kobe Bryant case.  Many of you saying you want the alleged victim in the case named because now she‘s going after money.  Stay with us.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why today‘s delay in the Scott Peterson case may tell us a lot more about this case than meets the eye.  This is the second time the judge has delayed the trial for days, based on -- quote—“possible developments”.  This time Amber Frey‘s cross-examination postponed until Monday.  No court. 

But, this is also a court that often starts late and ends early and there‘s no court on Fridays.  Last time I saw this sort of internal mayhem was in the O.J. Simpson case where delays and hearings overshadowed the testimony and that can only help the defense.  Clouds and thunder can help any defendant create reasonable doubt.  Most of the time, clear skies are good news for the prosecution.  Now, it is certainly possible that in both instances, in this trial, there were unforeseeable issues. 

Untested evidence found near bodies, new information about Amber Frey, and I‘m not blaming the defense.  But I fear the judge is poised to let this case slip away from him.  He needs to make sure he doesn‘t let legal gamesmanship take control of his courtroom.  Judge Ito of the Simpson case would love to pass the torch as the jurist associated with the weaknesses and loopholes of our criminal justice system.  Judge Delucchi should strive not to be bestowed with that dishonor. 

I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  The alleged victim in the Kobe Bryant case has filed a civil suit against Bryant for damages.  And last night on the program I asked whether her name, her identity should be made public in the civil case.  I said since she had chosen to sue for money damages, I don‘t know how you justify allowing her name to remain protected. 

Many of you agreed, including Anthony Brown.  “How can someone in hiding sue for $1 million?  Who‘s going to cash the check?  Will she show her I.D.?”

Also last night, while discussing the alleged victim, one of my panelists, Norm Early, called her a sexual assault victim. 

Fran Horne from Phoenix writes, “Will someone remind Norm Early that the judge in the criminal case ruled that the victim in this case must be referred to as the accuser.”

You know, Fran, first of all, the judge said she has to be called the alleged victim, not the accuser.  Furthermore, Norm Early doesn‘t have to judge‘s abide by the rulings.  Those apply only to courtroom filings.  I refer to her as the alleged victim.  Defense attorneys refer to her as the accuser and people like Norm refer to her as the victim.  I‘m not going to remind anyone to change their terminology. 

That‘s it for the program tonight. “HARDBALL” with Chris Matthews is up next. 

There‘s the e-mail—ABRAMS REPORT—and there‘s Chris Matthews. 

He‘s got Howard Dean on the program. 

Thanks for watching.  See you tomorrow. 

END   

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