updated 8/20/2004 9:58:20 AM ET 2004-08-20T13:58:20

Guest: William Portanova, Gary Casimir, Leslie Crocker Snyder, Gloria Allred, Ron Fischetti, Solomon Wisenberg, Lucy Dalglish

DAN ABRAMS, HOST:  Coming up, in the Scott Peterson case we answer the question so many have been asking.  What is really incriminating about the Amber Frey/Scott Peterson audiotapes?

(BEGIN VIDEOTAPE)

SCOTT PETERSON, ON TRIAL FOR MURDER:  I said that I had lost my wife. 

AMBER FREY, SCOTT PETERSON‘S FORMER GIRLFRIEND:  Yes, you did. 

PETERSON:  I did and yet...

FREY:  How did you lose her then, before she was lost?  Explain that. 

PETERSON:  There are different kinds of loss, Amber. 

ABRAMS (voice-over):  We‘ll play the key calls that go to the heart of the prosecution case. 

And caught on tape.  Prosecutors say the judge on this surveillance tape is taking a bribe from a lawyer with a divorce case in his courtroom.  We‘ll talk to the judge‘s lawyer. 

Plus, Oprah votes to convict a defendant of murder.  Now the convict‘s family says it‘s Oprah‘s fault, that she influenced the jury. 

The program about justice starts now.  

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, the potential development in the Scott Peterson case grinds the trial to a halt, just as the prosecution‘s star witness, Amber Frey, was set to be grilled by the defense.  And no one involved in the case is saying much as to exactly what caused the delay.  But that leaves jurors with the Amber Frey-Scott Peterson audiotapes echoing in their minds for the weekend. 

Phone calls, of course, that Frey secretly recorded just after she went to the police.  Now sure we‘ve heard Peterson making up elaborate lies.  That he‘s on a European business trip, that he‘s planning another trip to Mexico, that he‘s watching the New Year‘s fireworks in Paris.  But how many times have you heard defense attorneys on our esteemed legal team say well Dan that just proves he‘s a cad and a liar. 

OK, fine, it does.  But now it‘s time to go through what prosecutors hope is the really incriminating stuff.  First and foremost that Laci went missing on December 24, and yet, two weeks later Scott is talking about his missing wife and his future with Amber. 

(BEGIN AUDIOTAPE)

PETERSON:  You deserve so much better.  There is no question you deserve so much better.

FREY:  Yes and I deserve to understand an explanation of why you told me you had lost your wife and this was the first holidays you‘d spend without her.  That was December 9 you told me this and now all of a sudden your wife is missing. 

(CROSSTALK)

FREY:  Are you kidding me?  Did you hear me?

PETERSON:  I did.  I don‘t know what to say to you.  I...

FREY:  I think an explanation would be a start.

(END AUDIOTAPE)

ABRAMS:  So we‘re talking about premeditation not just motive.  The possibility that Peterson planned to murder his wife in the weeks before she went missing.  Think about the timeline.  Shawn Sibley, Frey‘s best friend, who introduced the couple, confronts Scott on December 6 after she finds out or hears that he‘s married.  He tearily told her—quote—

“that he‘d lost his wife, but that he wants to tell Amber himself.”

The next day Peterson, very busy at his computer, checking out the classifieds for a boat.  On December 8, Peterson again on his computer.  This time researching tidal currents in the San Francisco Bay and then tells Amber on the 9th about his missing wife. 

So what do our defense attorneys have to say about that?  Let‘s bring in our legal team.  With us tonight, Amber Frey‘s attorney, Gloria Allred, former New York State judge and NBC News analyst Leslie Crocker Snyder, criminal defense attorneys Gary Casimir and William Portanova.  Those two are going to be on the hot seat. 

All right, Bill, I‘m going to give you the first crack at this.  You know are you going to tell me what we just heard and the timeline I just laid out isn‘t incriminating? 

WILLIAM PORTANOVA, CRIMINAL DEFENSE ATTORNEY:  Ninety-nine percent of what this guy told Amber Frey was a lie, period.  So those phone conversations still add up to nothing. 

ABRAMS:  Why don‘t we address...

(CROSSTALK)

ABRAMS:  Now why don‘t we address our question...

PORTANOVA:  He‘s on the height of the Eiffel Tower as we speak. 

ABRAMS:  Right.  Right.  OK.  Now let‘s focus on my question, which was the tape we just heard...

(CROSSTALK)

ABRAMS:  ... whether that is incriminating. 

PORTANOVA:  Well, I would suggest that that tape would have been incriminating had he not told the police that he had taken a boat and gone fishing in the marina, as his alibi.  If this evidence somehow proved that he was lying to the police about what he was really doing, then it would be evidence.  But right now it‘s corroborative of his alibi, which he announced to the world the day that he was in contact with the police.  How is this...

ABRAMS:  Gary, I don‘t even think Bill Portanova knows exactly what he‘s saying.  I don‘t even think he believes that. 

(LAUGHTER)

ABRAMS:  What do you—I mean, look...

GARY CASIMIR, CRIMINAL DEFENSE ATTORNEY:   No doubt.

ABRAMS:  ... it‘s incriminating, right? 

CASIMIR:  No doubt.  No doubt.  This is probably the most incriminating piece of evidence the government has. It‘s probably the only -- and they‘re going to rest a lot on it.  They‘re going to try to push into the jury‘s mind that he was predicting his wife‘s death.  That he was planning it, that he was thinking about it and that he finally went through with it. 

That‘s what they‘re going to suggest to the jury.  The question is, you know, is Geragos going to somehow diminish this loss?  You see one of the things that has happened through these tapes, I believe, Dan, is I don‘t think he‘s going to take the stand.  He‘s got no reason to.  I think Geragos is going to try his best to get as much testimony, positive testimony from Scott that came out of these tapes, including the issue about loss, what did loss mean. 

ABRAMS:  Well let‘s talk about that. 

CASIMIR:  I think that‘s what‘s going to happen. 

ABRAMS:  Let‘s go to number seven here, because that answers the question of what did Scott Peterson mean by loss?  Is he going to suggest that it was some sort of emotional loss, that he was no longer with his wife emotionally?  Here‘s what the—here‘s what he says on the tape. 

(BEGIN AUDIOTAPE)

FREY:  And you said you lost your wife and what—I mean, what sense do you think people think when you say that in loss?  I mean, I took it and she took it as she had passed away.

PETERSON:  ... recently dead.  Yes, I know you did.

FREY:  How else is one to think any different than that Scott?

PETERSON:  Well, I mean...

FREY:  And you didn‘t indicate...

(CROSSTALK)

FREY:  ... you were currently married and living with her. 

PETERSON:  True.

(END AUDIOTAPE)

ABRAMS:  I mean Leslie, he—the defense isn‘t really going to argue that when he said lost his wife he didn‘t mean dead, right? 

LESLIE CROCKER SNYDER, FORMER NYC STATE JUDGE:  Well, the defense is capable of arguing anything, I guess.  But I mean I think these are all extremely incriminating as pieces of a circumstantial case.  There‘s still no smoking gun here.  But I do think that the missing two weeks before hand is very powerful. 

Now, what we don‘t know, of course, is what you brought up yesterday, that maybe there are all sorts of tapes that haven‘t been turned over that have different things on them.  But even if they do, these words of Scott Peterson are going to live forever.  That‘s what tape does.  And I think they are very incriminating in the context of building that circumstantial chain of evidence. 

ABRAMS:  Gloria, was Amber reluctant to make these tapes with the police? 

GLORIA ALLRED, AMBER FREY‘S ATTORNEY:  Well, upon being requested to assist by taping Scott Peterson, Dan, she agreed.  And immediately that same day the taping began.  And so she had a sense of what the right thing to do was.  And although it was the police‘s idea, she immediately agreed. 

ABRAMS:  Yes.  All right.  You know what?  I‘m going to play—I‘m going to give Bill Portanova one more chance.  All right, Bill, I‘m going to let you listen. 

(LAUGHTER)

ABRAMS:  This one is talking about Shawn Sibley.  This is her best friend.  And remember, as I laid out before, Shawn Sibley is the first one to confront Scott about being married because she hears it from someone and he tells her the same thing he tells Amber.  Here‘s—back to the tape.

(BEGIN AUDIOTAPE)

FREY:  Shawn was so clear with you several times and again, when she asked you, you know, Scott, you know I heard you‘re married.  She said, all I care—she said I don‘t care if you‘ve been married.  Are you currently married and you said what?

PETERSON:  That I had lost my wife.

FREY:  That you had lost your wife.

PETERSON:  Yes.

FREY:  Is that how you answered it?  You never said no?

PETERSON:  I‘m sorry.

FREY:  You never said...

PETERSON:  No, I denied it entirely.  I denied it entirely the first time.  And then I called her back later.

FREY:  And?

PETERSON:  And told her the truth.

FREY:  What did you tell her?

PETERSON:  That I lost my wife.

(END AUDIOTAPE)

ABRAMS:  Or that he was going to lose his wife.  Which one of those is it, Bill?

PORTANOVA:  Well, look, the guy is a pathological liar when it comes to romancing these sweet young women.  But the truth is that‘s all we‘ve proven.  That he lied to her about everything else in those tapes and now you want us to believe that he meant it when he said this one thing.  I just can‘t go there...

ALLRED:  Dan...

PORTANOVA:  ... and I don‘t think the jury will either. 

ABRAMS:  Who wanted in?

ALLRED:  Dan, there‘s so much more. 

ABRAMS:  Gloria, go ahead.

ALLRED:  There‘s so much more that—the February 8 call that he made to Amber from a pay phone.  My sense of it is that at that point he thought he was being at least wiretapped...

ABRAMS:  Yes.

ALLRED:  ... that maybe he would be safer if he called from a pay phone and could be a little bit freer to talk.  And on that call he says to her, “well, you don‘t have the answers, but you guessed at them.  And you know them.”  And he says that several times in different ways. 

UNIDENTIFIED MALE:  Yes.

ALLRED:  Well, what is it that Amber has guessed at? 

ABRAMS:  I‘ve got to tell you.  Gloria, I didn‘t...

ALLRED:  She‘s told him that she thought he planned it. 

ABRAMS:  I didn‘t find that...

ALLRED:  That he...

ABRAMS:  I didn‘t take it that way.  I mean, I listened to that tape and I know people have suggested—I didn‘t take it that way.  I think he was just basically continuing his effort at being evasive. 

(CROSSTALK)

ABRAMS:  I don‘t think he was confessing. 

ALLRED:  I don‘t think so.  And I think it was, you know, almost a confession.  He doesn‘t say I did it...

ABRAMS:  No...

ALLRED:  ... but it‘s very close.  And he says it basically after Laci‘s found, then he can tell her.  Well, if he‘s got information, why doesn‘t he tell it then?  Why doesn‘t he tell the police then? 

ABRAMS:  Well, we‘re going to take...

ALLRED:  Why doesn‘t he tell everyone...

ABRAMS:  We‘re going to take a quick break.  When we come back we‘re going to talk about what I think is another one of the most incriminating points, and that is that Scott Peterson is telling Amber that he just wants to be with her and bring up her child, his only child.  But, what about his baby on the way? 

And journalists increasingly facing fines or even jail time for refusing to reveal their sources.  Why are reporters suddenly facing so many threats of jail time more than ever before? 

And later, prosecutors say the divorce court judge in this video is taking a bribe.  You can see him counting the cash at one point.  He‘s even heard assuring the lawyer of a win.  How do you defend against a case like this?  We‘ll ask his lawyer. 

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, more of Scott Peterson‘s most incriminating phone calls with Amber Frey.  We confront the defense with evidence that could suggest he was more than just a cad and a liar.  Coming up.

(COMMERCIAL BREAK)

(BEGIN AUDIOTAPE)

FREY:  And that you don‘t want to have children.  That the only child you want or could see us having is one and that would be my daughter Ayianna.

PETERSON:  If we were together, yes.

FREY:  What?

PETERSON:  Yes.

FREY:  Yes.  All along knowing you have a baby on the way. 

(END AUDIOTAPE)

ABRAMS:  We are talking about some of the most incriminating tapes, at least what I think are the most incriminating tapes.  Because I keep hearing the defense attorney say it doesn‘t matter, it‘s just lying, it‘s this and that.  I mean, Leslie, this, in conjunction with the tapes we just played, to me about him saying that his wife was missing, gone, done, lost on December 9...

CROCKER SNYDER:  Lost. 

ABRAMS:  ... and now saying that he didn‘t want any more children that he just wanted to move forward with her children, that‘s not just lies.

CROCKER SNYDER:  OK.  I lost you here, but I don‘t know if you can hear me...

ABRAMS:  We can.  Go ahead, Leslie. 

CROCKER SNYDER:  OK.  Yes, I mean I think simply—the problem with this part of the tape, Dan, is he‘s not going to admit that he has lost his own child or anything about his own child, because he‘s not admitting that anything has happened to Laci.  But I think much more important than this portion, frankly, is the first, because there he has said that—he admits that he talked about losing his wives weeks ahead of “her disappearance”—in quotes—so that to me is the most important.  The child part, I mean he just comes across as someone who never wanted to have a kid, couldn‘t have cared less about his almost kid or his wife, and I think that, in and of itself, makes it much easier to believe that part of the picture is that he himself is guilty. 

(CROSSTALK)

ABRAMS:  I‘ve got to tell you, I think he goes beyond that.  And let‘s listen.  Because here is where Scott Peterson is talking, on January 1, about the fact that—they‘re talking about the differences between them.  That maybe he‘s saying 95 percent of me is all ready to go, you know five percent of me has questions.  And so Amber talks about the fact, that, well, one of the questions apparently you had is you didn‘t want to have any more children.  Let‘s listen. 

(BEGIN AUDIOTAPE)

PETERSON:  And the fact that you want another child.

FREY:  Right.

PETERSON:  And the small things that we have to discuss.

It‘s just not in his thoughts, having another child. 

FREY:  Do you still feel very adamant about not having another child?

PETERSON:  Oh I wouldn‘t say adamant, but it‘s just not in my thoughts currently.

(END AUDIOTAPE)

ABRAMS:  Bill Portanova, it‘s just not in his thoughts, having another child.

PORTANOVA:  Well, you know what?  Who knows what was in his thoughts?  I do know he had one goal in mind when he talked to this woman on the phone, and that was to bed her.  And he would say anything, no matter how preposterous, to bed her.  So to now say that you can sort of cherry-pick truthful statements out of this entire sea of lies, I think that‘s really a stretch. 

ABRAMS:  Well, no she‘s confronting him...

PORTANOVA:  And it‘s mildly speculative. 

ABRAMS:  ... here‘s the difference Bill.

UNIDENTIFIED FEMALE:  Dan.

ABRAMS:  She‘s confronting him about what he said previously.  Meaning, forcing him to admit things.  So it‘s not saying, oh or just saying some of it is truthful, the only stuff that we like is truthful and stuff we don‘t is not.  Basically, the stuff that‘s truthful is likely the stuff where she‘s saying to him didn‘t you tell me X on a certain date, and he‘s admitting that he did. 

CROCKER SNYDER:  But also—I don‘t understand this point about he—all he wants to do is bed her.  He bedded her the first night he went out with her.  I mean he really doesn‘t have to make much of an effort now to do that.  And it‘s not even clear how much he wants to bed her throughout these tapes, until the end where he claims that—near the end he wants to get together with her, which is probably something he knows is not going to happen.  But he‘s already accomplished that goal. 

ABRAMS:  Yes.

(CROSSTALK)

ALLRED:  Dan...

(CROSSTALK)

ALLRED:  Dan, I think what‘s also important is the last word of the transcript of that telephone call that you just showed.  Because when he‘s talking about not wanting to have another child, he uses the word “currently.”  Well, what‘s happening currently when he says that?  Currently his wife, Laci, who‘s missing, is pregnant with his child. 

ABRAMS:  And let me...

ALLRED:  So this is kind of—this is a very worrisome type of statement for him to make. 

ABRAMS:  I‘m going to talk to Gloria at the end of the—in the next block at length about what‘s going on.  But Gary Casimir, again, I want you to listen to this.  This is about—this is another one of the big points is that he says he‘s going to be able to spend more time with Amber when he gets back from his European trip on January the 25th.  Let‘s listen. 

(BEGIN AUDIOTAPE)

PETERSON:  I want to explain the entire situation to you, but I can‘t.

FREY:  You can‘t do it until after you get back from Europe, right, which is January 25.

PETERSON:  Yes, I‘m not in Europe.

FREY:  Yes I know obviously.  So what‘s the importance of January 25, Scott?

PETERSON:  It‘s just a date I picked Amber.

FREY:  What?

PETERSON:  It‘s just a date that I picked.

FREY:  Oh, just to throw it out there so I had some futuristic hopes in seeing you soon (UNINTELLIGIBLE) preferably not on the news.

PETERSON:  (UNINTELLIGIBLE) yes.

(END AUDIOTAPE)

ABRAMS:  You know, Gary, I knew about the tapes.  I kind of knew what

they were going to say, et cetera, but after hearing them—and I always -

·         I‘ve been saying that I thought it was silly for the prosecution to focus so much on premeditation as an aspect of this, but you know all of these tapes really do help the prosecutors in terms of demonstrating some premeditation. 

CASIMIR:  Dan, I don‘t think—not only does it help them.  This is the reason why they arrested Scott Peterson.  The tapes are the reason.  They didn‘t have the forensic evidence.  They still don‘t have it.  This is why they arrested Scott.  There‘s no in between about it.

The best things they have on this tape is a premeditation issue (UNINTELLIGIBLE).  Was he premeditating or was he just trying to get in Amber‘s pants?  Was he just trying to convince this woman who had been hurt before by having an affair with a married man that she didn‘t want to have an affair with a married man again?  This was his way...

ABRAMS:  And then coincidentally, his wife happens—right—it‘s one of those bad-luck situations? 

CASIMIR:  Absolutely.  Is this just a coincidence, an incredible...

ABRAMS:  Right.

CASIMIR:  ... coincidence and I think they‘re going to have to deal with this.  But don‘t think Geragos can‘t.  Don‘t think the jury is not going to buy into the fact that this guy is the worst pathetic cad and that he‘s a womanizer and this is what he does...

CROCKER SNYDER:  But you know what...

CASIMIR:  ... he just continuously keeps lying. 

CROCKER SNYDER:  Gary, I think we‘re forgetting that there are other pieces of evidence here.  I mean, don‘t forget, there‘s all the stuff about the bay.  There‘s his false and inconsistent statements, his false exculpatory statements to other people, his inconsistent alibis, plus the tape.  And this is a difficult case for...

CASIMIR:  Judge, I don‘t think any of that evidence has not met a defense answer.  The bay sucks—the whole bay with the cement poles...

(CROSSTALK)

CROCKER SNYDER:  Gary...

(CROSSTALK)

CROCKER SNYDER:  Gary, you‘re missing my point. 

ABRAMS:  Well...

(CROSSTALK)

ABRAMS:  Hang on.  I‘ve got to take a break here.  But Gary, they have not addressed the question of how the body ended up 90 miles away from their home, the same place that he went fishing.  They‘re going to have to say he was framed.  They‘re going to have to.

CASIMIR:  They‘re going to have to.

ABRAMS:  All right.  I want to talk to Gloria Allred a little bit.  Everyone is going to stick around, but I‘m going to talk to Gloria a little bit about what‘s going on.  Amber Frey is getting ready for Monday‘s cross-examination.  Does Gloria (UNINTELLIGIBLE) holed up somewhere, throwing...

(CROSSTALK)

ABRAMS:  ... questions at her.

Later, a divorce court judge taught on tape with a lawyer in his chambers.  Prosecutors say he was taking a bribe.  You know there‘s a shot of him flipping through the cash, taking a box of cigars and this lawyer is working with the authorities.  The lawyer for the judge joins us.

(COMMERCIAL BREAK)

(BEGIN AUDIOTAPE)

FREY:  But I‘m saying now, was Laci aware of the situation about me?

PETERSON:  Yes.

FREY:  She was?

PETERSON:  Yes.

FREY:  Really?  How did she...

PETERSON:  Yes.

FREY:  ... respond about it?

PETERSON:  Fine.

FREY:  Fine?

PETERSON:  Yes.

FREY:  An eight-month woman fine about another woman?

PETERSON:  You don‘t know all the facts.  Amber, you don‘t know all the facts.

FREY:  Oh, she was OK with it, but you continued to lie to me and couldn‘t be with me the holidays, but she was OK.  She was fine with knowing about me?

PETERSON:  Yes.

(END AUDIOTAPE)

ABRAMS:  Oh, yes.  All right.  Well, the week has been shortened.  We were supposed to see cross-examination on Wednesday.  We‘re going to now see it on Monday after a potential development. 

Gloria Allred, the attorney for Amber Frey, do you know anything about this potential development? 

ALLRED:  Well, obviously, it‘s a development that the judge didn‘t want to disclose... 

ABRAMS:  Right.  That‘s why I‘m asking you...

ALLRED:  The nature of it...

ABRAMS:  Right.

ALLRED:  No—well, what I would do would be speculating if I were to say and I don‘t wish to speculate.  But whatever it is, the cross is going to be interesting.  I do expect it to occur on Monday.  I think that Amber‘s credibility has been well established, Dan.  It‘s been confirmed, in fact, by statements that you pointed out that Scott Peterson made on the state—on the tapes, where he confirms that he said what Amber said he said that he had lost his wife.  These are the first holidays without her and the statement about not needing to have a biological child if he‘s with Amber.  The—so her credibility is well established. 

ABRAMS:  Are you preparing her?  I mean are you giving her tips, advice, on how to deal with cross-examination? 

ALLRED:  Well, I‘m here in Los Angeles.  She‘s gone home... 

ABRAMS:  We know she knows how to use the telephone. 

ALLRED:  She does.  And all I can say is she was ready yesterday when we thought that she was going to testify, and she will be ready once again on Monday.  And she knows that her job is to tell the truth.  That‘s what she has done in testimony. 

That‘s what she will continue to do.  And what I think that Mark Geragos is going to try to do perhaps is to slime her.  Because he may try to obfuscate.  He may try to distract the jury from the facts.  I don‘t know what else he thinks he can do.  Because I think her credibility is intact and will continue to be intact, and there‘s no other way to attack it. 

ABRAMS:  We shall see.  I like tweaking Gloria every once in a while.  All right.  Leslie Crocker Snyder, Gloria Allred, Bill Portanova and Gary Casimir, thanks a lot. 

CASIMIR:  Thank you. 

ALLRED:  Thank you.

ABRAMS:  Coming up, we turn from phone calls on tape to surveillance video of a divorce court judge in his chambers.  How do you defend the judge from charges that he took a bribe from a lawyer when they have tapes of him counting cash? 

And which means more to you, a reporter‘s right to keep his sources secret or the government‘s desire to get that source‘s name?  I know your answer, but we‘re going to debate.

Your e-mails abramsreport@msnbc.com.  I read them at the end of the show.  I know your answer is not on the reporter‘s side.  I know...

(COMMERCIAL BREAK) 

ABRAMS:  Coming up, a judge caught on tape promising outcomes in divorce cases.  We‘ve got the tapes.  But first, the headlines. 

(NEWS BREAK)

ABRAMS:  We‘re back. 

For a judge it‘s really the worst allegation that one can endure.  In New York, a State Supreme Court judge who handles divorce cases is now accused of taking bribes from an attorney in order to render favorable decisions for the attorney‘s client.  The trial of that judge, Gerald Garson, won‘t begin for another few months.  But prosecutors say surveillance tapes show him accepting bribes for his rulings.  And they say transcripts of the tape are shown telling the attorney, this about his client‘s case. 

The bottom line is she‘ll walk away with nothing.  He walks away owning the house.  I‘ll award him exclusive use on it.  She‘s “blanked” (EXPLETIVE DELETED) you win. 

The tapes were shown in court yesterday at another trial where a clerk and court officer accused of steering cases to Garson also in exchange for bribes.  We‘ll talk to the judge‘s attorney in a moment, but first, WNBC‘s John Noel has the story. 

(BEGIN VIDEOTAPE)

JOHN NOEL, WNBC CORRESPONDENT (voice-over):   March 4, 2003, a hidden camera in the robing room of Brooklyn State Supreme Court Judge Gerald Garson investigators say shows attorney Paul Siminovsky placing a box of expensive cigars in the judge‘s desk drawer. 

ATTORNEY:  A client gave them to me.

JUDGE:  Romeo and Julieta...

NOEL:  The next week the camera captures, according to investigators with the Brooklyn district attorney‘s office, Judge Garson pocketing $1,000 in cash from the same attorney. 

ATTORNEY:  Make sure it doesn‘t fall out of your pocket.

NOEL:  The videos were played for the jury in the trial of court officer Louis Salerno and retired court clerk Paul Sarnell, charged with taking money, gifts, and airline tickets to steer divorce cases to Judge Garson, who prosecutors say was being paid for his favorable rulings.  However, attorneys for Salerno and Sarnell two say while dramatic, the videos don‘t show their clients doing anything wrong. 

DOMINICK AMOROSO, DEFENDANT‘S ATTORNEY:  The prosecution is not alleging that my client had anything to do with the separate indictment of Judge Garson.  They‘re completely separate indictments.  However, by showing the tape, the de facto effect is that there could be spillover and that‘s, in our opinion, improper. 

NOEL DOWNEY, ASSISTANT DISTRICT ATTORNEY:  It‘s all part of the story.  It‘s a full view.  It‘s pulling back the curtain on this conspiracy and taking a look at each team member involved, how they know each other, the type of relationship they have. 

NOEL:  Next week the attorney in this video is expected to testify just what those relationships were. 

In downtown Brooklyn, John Noel, News Channel 4. 

(END VIDEOTAPE)

ABRAMS:  “My Take”—this sure looks like a corrupt judge at the least and a tough criminal case to defend.  But one thing is for certain.  The judge knew where to turn for a great lawyer. 

Ron Fischetti is the judge‘s lawyer and he joins us now.  Ron, thanks for coming on the program.  All right...

RON FISCHETTI, CRIMINAL DEFENSE ATTORNEY:  It‘s nice to be here Dan.

ABRAMS:  ... the tape looks bad, right?  I mean you would concede that. 

FISCHETTI:  There‘s no question about that. 

ABRAMS:  Yes.

FISCHETTI:  The tape is bad.  The tape shows inappropriate behavior by the judge.  We‘ve never said that that was appropriate behavior.  But let me set the record straight.  I mean there‘s something you must know and your audience must know.  Judge Garson never took a dollar as a bribe to fix a divorce case. 

Paul Siminovsky, the lawyer that you see here, set up clients, told clients that he could fix the judge and took tens of thousands of dollars for himself saying he would bribe the judge and never gave the judge a dime...

ABRAMS:  Well...

FISCHETTI:  ... never a dime.  And the district attorney knows that, and he hasn‘t been charged him with bribery...

ABRAMS:  Right.

FISCHETTI:  ... not in the indictment.  Not charged with bribery at all...

ABRAMS:  OK...

FISCHETTI:  ... never accepting a dime. 

ABRAMS:  But that‘s a legal definition of bribery. 

FISCHETTI:  No it‘s not...

(CROSSTALK)

FISCHETTI:  It‘s the actual definition of bribery...

ABRAMS:  But he‘s still being accused.  I mean he‘s still facing...

FISCHETTI:  No he‘s not...

ABRAMS:  ... a criminal trial in part based on the action that we‘re seeing on the tape. 

FISCHETTI:  That is not true...

ABRAMS:  So what is he being charged for?

FISCHETTI:  The actions that you‘ve seen on tape are the fact that he received $1,000 from Paul Siminovsky, who set him up while cooperating with the district attorney‘s office...

ABRAMS:  And the cigars...

FISCHETTI:  ... by giving him $1,000 and a box of cigars, paid for by the district attorney.  He returns the $1,000.  John Noel didn‘t show you that...

ABRAMS:  And tells him...

FISCHETTI:  ... he called Siminovsky back...

ABRAMS:  Right.

FISCHETTI:  ... I don‘t want the money...

ABRAMS:  Right.  He says write a check...

FISCHETTI:  ... I don‘t need the money. 

ABRAMS:  ... to my wife‘s campaign...

FISCHETTI:  Which is entirely legal.  It was a complete setup.  In the meantime...

ABRAMS:  Wait.  Wait...

FISCHETTI:  ... Siminovsky took $10,000...

ABRAMS:  Wait, Ron, you‘d agree...

FISCHETTI:  ... from Levi...

ABRAMS:  ... it‘s not legal if he‘s asking him to write a check to his wife‘s campaign in exchange for impacting a divorce case. 

FISCHETTI:  He didn‘t ask for it in exchange.  He said I don‘t want the $1,000.  If you want to help out, you can write a check to my wife‘s campaign.  The point of the matter is that...

ABRAMS:  Why did he take the first $1,000 in the first place though...

FISCHETTI:  ... Siminovsky a misdemeanor in this case, who have extorted money from more than seven clients, tens of thousands of dollars, saying it was to bribe the judge, and kept the money himself and he‘s being given a misdemeanor.  These tapes are shown just to dirty up Garson.  We intend to go to trial on this case...

ABRAMS:  So what is inappropriate...

FISCHETTI:  ... next year and will be acquitted. 

ABRAMS:  You even conceded that it was inappropriate.  What‘s inappropriate?

FISCHETTI:  Inappropriate, perhaps unethical to talk to Siminovsky about a decision that he‘s going to make, to accept the $1,000 as a referral fee when he was entrapped.  But leave the entrapment aside...

ABRAMS:  Wait, a referral fee...

FISCHETTI:  ... that‘s not a crime. 

ABRAMS:  Wait.  Wait.  The judge is getting a referral fee? 

FISCHETTI:  That‘s right.  That‘s what Siminovsky said.  That‘s how he was set up.  He never said to the judge here‘s $1,000 on some bribery because you‘re setting up a case, because the judge would have thrown the money back in his face.  What he said is here‘s $1,000 for a case that you sent to me that‘s not in your courthouse and it‘s some money that I received from a client, here‘s a piece of it and Garson said I didn‘t want it.  Has nothing to do with bribery...

(CROSSTALK)

FISCHETTI:  ... nothing.

ABRAMS:  All right.  Let‘s be clear.  I mean he didn‘t—he kept it and then he called him back into his chambers and said, you know what...

FISCHETTI:  That‘s right.

ABRAMS:  ... he gives it back to him and he says instead write a check to my wife‘s campaign...

(CROSSTALK)

ABRAMS:  Let me read you—this is from some of the interchange that occurs between them, apparently, on the tape. 

The only evidence in this case is the deed, Garson dictates.  The judge interrupts himself and then continues - the house has been evaluated at...

Siminovsky:  Six-fifty.

Whatever the hell it is, the judge says.  During the course of the marriage the parties have...

Incurred these debts. 

Judge Garson:  Did certain improvements to the property. 

Garson then tells him to be sure to bill the client after writing the memo.  I‘m telling you to charge for it.  The judge made me do it.  If you don‘t like it, then I can‘t really put too much effort into your memo.

You‘re saying that that‘s legal? 

FISCHETTI:  I‘m saying that it‘s not a crime.  I‘m saying it‘s unethical.  I‘m saying it‘s inappropriate.  I‘m saying a judge shouldn‘t do it, but it is not a crime and he‘s not charged with it.  The district attorney hasn‘t charged with that. 

The district attorney charged with receiving a box of cigars that he bought.  And the district attorney charged him with receiving lunches and dinners in return for giving Paul Siminovsky legal guardianship...

ABRAMS:  Let me ask...

FISCHETTI:  He never took a bribe, never.

ABRAMS:  Is the judge—let‘s put this criminal case aside for a moment. 

FISCHETTI:  Right.

ABRAMS:  Is this judge going to step down because of what you referred to even, this is unethical behavior.

FISCHETTI:  Well he‘s not sitting now.  He‘s been suspended without pay.  Whether or not he resigns or whether or not he steps down, we‘ll see what happens...

ABRAMS:  But you agree that he shouldn‘t be sitting on the bench anymore, don‘t you? 

FISCHETTI:  I‘m not going to agree to that now.  No, I‘m not. 

ABRAMS:  Really?  All right.

FISCHETTI:  He‘s not sitting on the bench now. 

ABRAMS:  Well, seems to me...

FISCHETTI:  But, you know, your lead story and everybody‘s lead story talks about Judge Garson receiving bribes to fix divorce cases.  That is entirely untrue.  He never did and he‘s not charged with those crimes. 

ABRAMS:  All right.  Well we shall follow the case.  Ron Fischetti, as always, thanks very much for coming on the program. 

FISCHETTI:  Thank you, Dan. 

ABRAMS:  Coming up, journalists increasingly facing fines or even jail time for refusing to reveal their sources.  Why are judges saying you can‘t hide behind the First Amendment? 

And Oprah Winfrey on a jury that convicts.  Now the defendant‘s family is blaming Oprah.  Stay with us.

(COMMERCIAL BREAK)

ABRAMS:  It‘s becoming a trend.  Reporters who think they have the right to keep their confidential sources confidential, facing fines or even jail time.  The latest on Wednesday, a U.S. district judge found reporters for CNN, The AP, the “L.A. Times”, “New York Times” in contempt.  Fined the organizations $500 a day pending appeal. 

Why?  Because the reporters refused to reveal their sources for story on Wen Ho Lee.  Remember the story of the nuclear scientist who spent nine months in prison pending trial on 59 counts of passing top-secret information to China.  While Lee was doing time the case against him seemingly collapsed, the FBI admitting its investigation was flawed.  And though Lee did plead guilty to a charge, he‘s now suing the government saying official leaks to reporters violated his privacy rights. 

Now Lee‘s lawyers want to find out who leaked and the reporters won‘t tell.  And neither will the reporters in the Valerie Plame case. Remember, she‘s the CIA agent—quote—“outed” by syndicated columnist Robert Novak in what may have been an attempt by Bush administration officials to discredit her husband, former Ambassador Joseph Wilson, at least that‘s what they‘re investigating.

Well Novak won‘t say if he‘s been subpoenaed.  Journalists for “The New York Times”, “The Washington Post”, “TIME” Magazine, who did follow-up stories have, and one, “TIME‘s” Matthew Cooper is facing jail time for contempt.  The bottom line question—is it time for journalists to start playing by the same rules as everyone else? 

As you can imagine, I have a take on this.  But because “A”, I‘m a member of the media, and “B”, my father is representing members of the media, in these very cases I clearly have a bias towards the reporters on this one, so let‘s just get to the debate.

Lucy Dalglish is executive director of the Reporters Committee for Freedom of the Press and Solomon Wisenberg is a former federal prosecutor.  Thank you both very much for joining us. 

LUCY DALGLISH, REPORTERS CMTE. FOR FREEDOM OF THE PRESS:  You‘re welcome.

SOLOMON WISENBERG, FORMER FEDERAL PROSECUTOR:  A pleasure.

ABRAMS:  All right, Mr. Wisenberg, let‘s start with why do you think that suddenly there are so many cases where reporters are being put on the hot seat and why, in your view, is that OK.

WISENBERG:  Well it‘s not OK in every case.  There is a limited First Amendment privilege with respect to newsgathering.  But in these two particular cases, Dan, you‘ve got government misconduct.  You‘ve got the fact that the sources who talked to the reporters in the very act of talking to the reporters committed a crime, and you‘ve got members of the press who want basically special privileges that other members of society don‘t have.  You know, grand juries have a right to the testimony of all men and women.  There‘s no special automatic rule for the press, as you know, through the (UNINTELLIGIBLE). 

ABRAMS:  And Lucy, see, that‘s what people say.  When they see these cases they say why should the press be treated differently.  Why should the media not have to answer the same questions that anyone else in society would be forced to answer?  And what‘s the response?

DALGLISH:  Well it‘s a very common question, and lately I‘ve been getting it about five times a day.  But really, the press is specifically mentioned in the Constitution.  And we recognize that it is only through the media that the public can get the information that it needs to make decisions in this democracy. 

And oftentimes the only way journalists can get information about how government is operating is to promise someone in the government confidentiality.  And if journalists are not able to keep that promise, essentially the entire system collapses and the public doesn‘t get the information that it needs. 

ABRAMS:  See Lucy, what‘s happening is people are distrusting the media now in a way that I don‘t think we‘ve ever seen before.  And the bottom line is I think as a society people are saying, you know what?  Yes, I know that‘s sort of what it was based on initially.  But it was based on a different type of press than we‘re seeing today, and the bottom line is this is not a press we can trust. 

DALGLISH:  You know, I don‘t think the press is any more scurrilous these days than they were when Thomas Jefferson was president.  There‘s a lot more press than there used to be.  But the media has always covered public officials and public figures fairly aggressively. 

ABRAMS:  Let me read from number one here.  This is—this was just put out by Phil Bronstein who‘s the executive...

DALGLISH:  Yes.

ABRAMS:  ... V.P. and editor of the “San Francisco Chronicle”.  He literally just sent out a memo today to all the staff at “The Chronicle”, sort of giving them a heads up...

DALGLISH:  Yes.

ABRAMS:  ... that the rules are changing. 

And he says, practices, rulings and other legal interpretations of statutes protective of press rights pretty much established and accepted for some 30 years are now being challenged in an unprecedented manner and have been for the last six months or so.

Mr. Wisenberg, some people are saying that because this administration has been so secretive about everything that the only way information is getting out is through leaks and even important information.  And that if you‘re going to be so secretive about everything, the only way that government officials are going to be called to task on very important cases -- and both these cases are not tabloid cases we‘re talking about.  The only way it‘s going to come out is if the press can promise I won‘t tell. 

WISENBERG:  I have a problem with that because look at the Wen Ho Lee case, which is one of the main ones here.  That occurred during a previous administration.  And look at it from the other side, Dan.  What‘s a guy like Wen Ho Lee to do?  He was libeled.  The worst kind of lies were told about him.  All by government officials who were violating the law when they were doing it. 

Why shouldn‘t he be able to have a remedy at law?  Look at Valerie Plame.  She was a CIA agent and because someone in this administration wanted to retaliate against her, her cover was blown and her sources were endangered.  Shouldn‘t there be a remedy?  Shouldn‘t the government be able to figure out who did that? 

I don‘t think your points are not valid.  And in many cases, particularly lower courts and state courts who are going after reporters for insufficient reasons, I‘m troubled by those cases as well.  But in these two cases the law is clear, and I think the equities are clear. 

ABRAMS:  Lucy, final word. 

DALGLISH:  Well, you know, the Wen Ho Lee case, Mr. Lee may have been mistreated.  But the way to handle that is, number one, he could have brought a libel action against the media, and he chose not to.  But the media‘s obligation in that case is to correct the record and repeat—and to report the truth.  And I think they have been acting fairly responsibly in making sure that the actual truth about Mr. Lee‘s conduct is being reported. 

ABRAMS:  And, you know, it is kind of odd when you think about it.  He‘s suing for money and as a result of a case where he‘s suing for money a reporter may go to prison.  It‘s kind of odd. 

WISENBERG:  Why shouldn‘t he sue for money if he‘s been...

ABRAMS:  I‘m not saying he shouldn‘t.  I‘m saying that the result is a little bit odd, because you have someone suing for money and the only person going to prison is a journalist...

DALGLISH:  That may be the result in all of these cases.  The only people going to jail might be the journalists. 

ABRAMS:  All right.  Anyway, we appreciate it.  Thanks both of you very much.  Appreciate it. 

WISENBERG:  Thank you. 

ABRAMS:  Coming up, the queen of daytime talk completes her civic duty as a juror with a murder conviction.  She says the experience was life changing.  Now the defendant‘s family says it‘s Oprah‘s fault.

And your e-mails—I‘m going to read some of them coming up next, abramsreport@msnbc.com

(COMMERCIAL BREAK)

ABRAMS:  Coming up, I said last night I could listen to the taped conversations between Scott Peterson and Amber for hours.  Am I sick for feeling that way?  Some of you think so.  I respond...

(COMMERCIAL BREAK)

ABRAMS:  Usually this is where do I my “Closing Argument”.  I was on a red eye flight from California last night, just couldn‘t do it today, so before I read your e-mails, talk show host Oprah Winfrey‘s time on a jury was short.  But it made headlines all over the world. 

She was selected to be on a murder trial that lasted just three days.  Yesterday after more than two hours of deliberate, the jury convicted 27-year-old Dion Coleman of first-degree murder.  Now the defendant‘s family thinks Oprah is to blame. 

Amy Jacobson of NBC Chicago station WMAQ reports. 

(BEGIN VIDEOTAPE)

OPRAH WINFREY, MURDER TRIAL JUROR:  The bigger story here for me is that a man is dead, murdered, supposedly over $50 and that the real war is still going on in the inner city streets every day with young black men killing each other. 

AMY JACOBSON, WMAQ CORRESPONDENT (voice-over):  As the guilty verdict is read, Oprah looked serious and straight at the judge.  Twenty-seven-year-old Dion Coleman convicted of first-degree murder.  Two years ago, he fatally shot Walter Holley in the face.  Both had lengthy arrest records.  Most of the witnesses who testified openly admit they sell drugs. 

WINFREY:  This was like a world I‘ve read about and certainly am aware of, but this was a reality check. 

JACOBSON:  As the Coleman family leaves the courthouse, a mother cries.  Another relative blames Oprah Winfrey for the verdict. 

UNIDENTIFIED FEMALE:  Oprah Winfrey, she‘s part of the problem. 

JACOBSON:  The public defender disagrees. 

CYNTHIA BROWN, PUBLIC DEFENDER:  Miss Winfrey had any—more or less influence than any other juror on (UNINTELLIGIBLE).

JACOBSON:  After two hours and two votes, the jury reaches a decision. 

Some surprised that had the queen of talk wasn‘t the foreman. 

JOHN FOLLERT, JURY FOREMAN:  I took one for the team and took the pressure off Ms. Winfrey.

ART WHITE, JUROR:  She wasn‘t overbearing.  She didn‘t take over or anything.  We just did everything as a group. 

JACOBSON:  And as she leaves the courthouse arm in arm with her new friends, Oprah said she‘ll never forget the powerful testimony coming from Holley‘s mother, Irene. 

IRENE HOLLEY, VICTIM‘S MOTHER:  I‘m not saying he was an angel.  But he was mine.  And it took a lot from me when they took Walter away from me.  He was not still there. 

WINFREY:  When you see a mother who has lost a son, in this manner, it‘s something I think you never forget.  And that is an impression that will be with me forever. 

(END VIDEOTAPE)

ABRAMS:  That was WMAQ‘s Amy Jacobson reporting.  The billionaire talk show host received $17.20 a day as a juror. 

All right.  Now it‘s time for “Your Rebuttal”.  We‘ve been analyzing the secretly taped conversations of Amber Frey in the Scott Peterson trial.  Last night I said in passing, you know I can‘t get enough of the tapes. 

Dani Kebschull from Soldotna, Alaska.  “You said that you can‘t get enough of the Amber Frey/Scott Peterson tapes.  I find them to be disgusting.  Both parties sicken me.  What is it about them that you find so fascinating?  I would like to know.  You‘ve never struck me as the type who would find that sort of low-rent dialogue as interesting.”

I don‘t know what to tell you.  I do.  I find that—this particular low-rent dialogue entirely fascinating. 

Penny McCurdy has a theory about why the audiotapes are important.  “His wife and unborn son are somehow missing.  An innocent man would be upset and devastated until a resolution was reached.  It‘s not what he says to Amber that‘s condemning.  It‘s what he doesn‘t say to her that points to his guilt.”

From Fresno, California, Charles Rothbaum thinks the tapes could lead to more than just a conviction.  “The Amber Frey tapes may only show Peterson is bad news, but if the jury finds him guilty, they assure a death verdict at the penalty phase.  He slanders his dead wife intimating the expected baby is not his without conscience, grievously hurts and continues to lie to Ms. Frey and is often giddy and flippant when not crying crocodile tears while others are worrying and searching for his wife.  Ironically the tapes may not be by themselves enough to establish guilt, but are more than enough to get him killed.”  We‘ll see. 

In my “Closing Argument” last night I said the judge could be poised to let this case slip away from his control.  Carolynn Houck, Centerville, Ohio.  “Cameras or no cameras, gag orders or no gag orders, a weak judge will always find himself and justice at the mercy of an attorney, whether that attorney sits at the defense or the prosecution table.”

Last night, the Reverend Jerry Falwell was on the program to discuss his new law school at Liberty University and plans for teaching students about faith in the law.  I said while I think religious schools are an important part of higher education, that law schools should teach man‘s law.  And I would expect that this school as it is currently structured will not be accredited as a law school. 

In Lynchburg, Virginia, Jeff Johnson, a member of Liberty University‘s inaugural class writes, “While I usually enjoy your show, I must disagree with your assessment that a Christian law school is somehow inherently inappropriate.  Your opinion is based on the faulty assumption that legitimate law schools offer objective values-neutral legal education.  The truth is that all students, law students, are indoctrinated.”

Well Jeff, first of all, I have no problem with Christian schools to teach law.  Notre Dame and Georgetown are two of the finest law schools in the country.  But Liberty is seeking not to teach law, but to teach religion and the law.  That‘s legitimate course for a school to have, even how religion has influenced the law.  But a law school must be first and foremost a learning institution that teaches man‘s law. 

Furthermore, it has nothing to do with my assumptions about law schools.  Different law schools have different reputations.  The University of Chicago considered more conservative than, say, Yale.

Jack Durham from Boise, Idaho comes at me from the other side.  “You‘re OK with religious schools.  Why?  Our young people should be free from religious influence until they‘re old enough to make up their own minds.”

Come on, Jack.  You think you should be able to decide that all kids should have no religious influence?  Come on.  You don‘t really believe that. 

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

Coming up next, “HARDBALL” with Chris Matthews.  Chris‘ next guest is former Senator Max Cleland. 

Thanks for watching.  I‘ll see you tomorrow and guess where I‘m going to be next week?  Back in Redwood City.  That‘s right.  More Amber.  More cross.  I‘m there.

END   

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