updated 8/27/2004 12:40:01 PM ET 2004-08-27T16:40:01

Guests: Jeralyn Merritt, William Fallon, Dean Johnson, Jean Casarez, Kevin O‘Reilly, Benjamin Ginsberg

DAN ABRAMS, HOST:  Coming up, Scott Peterson‘s lawyer tries to prove there is nothing incriminating about Peterson‘s repeated lies on tape recorded calls and even his reaction to hearing that Laci was not initially found where he went fishing.


UNIDENTIFIED FEMALE:  ... marina and it was a boat anchor.  Of course, we knew it wasn‘t Laci, but I just wanted you to know.


ABRAMS (voice-over):  Incriminating or was it just a sigh of relief that his wife may still be alive?

Plus, President Bush and Senator Kerry spar over campaign ads.  We talk with a Republican lawyer who resigned after being linked to the controversial ad about Kerry‘s war record.

And William Kennedy Smith, accused of sexual assault, again.  His former personal assistant is accusing him, but she admits she then dated him afterwards.  We‘ll hear her impassioned plea and talk with her lawyer.

The program about justice starts now.


ABRAMS:  Hi everyone.  First on the docket tonight, the defense goes on the offense in the Scott Peterson case, trying to pick apart the testimony of the man in charge of all the wiretaps.  This after the prosecution plays audio recordings of Peterson lying to family and friends about where he was when making the calls, even to his own mother.





J. PETERSON:  Where are you?

S. PETERSON:  What‘s that?

J. PETERSON:  Where are you?

S. PETERSON:  West Fresno.


ABRAMS:  West Fresno?  Nope.  Cell phone records showed he was actually 169 miles north in the vicinity of the Berkeley marina on the day divers were scouring the bottom of the San Francisco Bay in that area for his wife‘s body.  They came up with an anchor.  But Laci‘s body was found in that area nearly four months later near the spot where Scott said he was fishing on the day his wife disappeared.  And just two hours later, Laci‘s mother calls with hopeful news that her daughter may still be alive.


RECORDER:  Your call has been forwarded...


RECORDER:  You have one unheard message.  First message.

SHARON ROCHA, LACI PETERSON‘S MOTHER:  Hi Scott.  This is mom.  It‘s a about a quarter to 1:00.  Just wanted you to know I just got a call from Ron Cloward.  He‘s at the marina and it was a boat anchor.  Of course, we knew it wasn‘t Laci, but I just wanted you to know.


ROCHA:  I‘m going to call your house in case you don‘t get this message first.  Bye.

RECORDER:  Message erased.


ABRAMS:  Well, who knows what that whistle was.  But the question, of course, is how the jury will interpret it.  We‘ll talk to our legal team in a minute.  But first, Edie Lambert from NBC affiliate KCRA is outside the courthouse.

So Edie, the defense team trying to discredit the wiretap records. 

What have they got?

EDIE LAMBERT, KCRA CORRESPONDENT:  Well, they got the lead investigator for those wiretaps to use a lot of words like glitches, anomalies, not reliable as he was explaining all the discrepancies between the cell phone records and the wiretap records.  Of course, the defense team trying to show that the information coming from prosecutors can‘t be trusted.

Here‘s just one example.  You may recall a store clerk in Washington thought she had seen Laci Peterson.  That was around January 30 that Scott Peterson gets that information.  He tells a number of people, including his own mother, that he was in touch with detectives around that time up in Washington.  Well, yesterday, the prosecutors brought out that there was no proof that he‘d actually talked to any detectives until February 3, days later.  And here‘s the conversation the jury heard.


PETERSON:  Hi, Detective Jacobs.


PETERSON:  My name is Scott Peterson.


PETERSON:  I‘ve called a few times, but I‘m glad to finally speak with you.  You reviewed the tapes looking for my wife, did you not?


LAMBERT:  Now today defense attorney Mark Geragos pointed out that honestly there were many other people that Peterson could have talked to on many other phones.  He pointed out that the wiretaps were only on Peterson‘s two cell phones, not his home phone, not his work phone, not on any other number of phones that Scott Peterson could have used.  Also, he pointed out that the wiretaps don‘t pick up every call.

Now, Dan, you also mentioned that yesterday the jury heard Peterson allegedly lying about his whereabouts at a time that he was afraid his wife‘s body may have been discovered in the San Francisco Bay.  Well, Geragos really challenged their ability to track Scott Peterson‘s whereabouts using cell phone records and he even got in some evidence that a Department of Justice surveillance team placed Scott Peterson at his own home that day.

Another thing that jumped out today, Dan, was how late this information is coming in.  The investigator, Steve Jacobson, talked about running tests on cell phone towers in June of this year.  As you know, the trial was already under way at that point, and he admitted that as late as last week they still thought there were secret conversations between Amber Frey and Scott Peterson.  It wasn‘t until last week that they tracked down all of their records and they figured out that wasn‘t the case.  They finally cleared her on that.

So, again, some late information there.  At this point, a little disjointed because of new discovery issues.  Jacobson is now off the stand.  He comes back on Monday.  An investigator named Lydell Wahl (ph) is back on the stand.  He hasn‘t been here since August 5.  His testimony had also been delayed because of discovery issues.  So, that‘s where we are and Lydell Wahl (ph) will be testifying again more this afternoon.  Back to you.

ABRAMS:  Oh, more discovery issues.  Edie Lambert, thanks very much.

All right.  It‘s clear that these, you know, the police have made some mistakes here.  Some of this is a mess.  But “My Take”—these tapes are generally worse for Peterson than even the Amber Frey tapes.  You can claim Peterson‘s lies to Amber were a lame effort to woo her back into his bed.  But you certainly can‘t use that arrangement with his lies to his own mother.

Combine that with his reactions of the January 11 search of the bay joking with friends and family that police found an anchor and not his wife‘s body.  Let me be clear—his saying you know (UNINTELLIGIBLE) or whatever it turned out not to be Laci‘s body at the exact location where he was fishing does not in and of itself make him guilty.  But taken together with the Amber Frey evidence, where the bodies were found and some inconsistent statements about what he was doing that day, if he didn‘t have anything to do with it, he is one unlucky and misunderstood man.

Let‘s bring in our legal team—and it‘s possible, it is—former prosecutor Bill Fallon, criminal defense attorney, Jeralyn Merritt and in the courtroom today former San Mateo County prosecutor Dean Johnson.

Jeralyn, do—will you at least concede that these tapes are damaging?

JERALYN MERRITT, CRIMINAL DEFENSE ATTORNEY:  They‘re damaging to his credibility, but his credibility isn‘t at issue.  All they do is show that he is a liar.  And Dan, come on, you‘ve never lied to your mother?

ABRAMS:  Wait a second...

WILLIAM FALLON, FORMER PROSECUTOR:  Oh my God, Jeralyn, you never lied to your mother about your dead wife and dead baby?

MERRITT:  No, oh, come on, Bill.  He didn‘t lie about his dead wife and baby.  He lied about his whereabouts.

FALLON:  It had to do with them.

MERRITT:  He lied about his whereabouts...

FALLON:  And as Dan said here...

MERRITT:  Let‘s have some evidence...

FALLON:  ... Jeralyn...

MERRITT:  ... that connects this man to this crime...

FALLON:  Jeralyn...

MERRITT:  ... not connects him to some lies...

FALLON:  ... if his testimony—when Amber was on, she was golden what came out.  She was the golden girl (UNINTELLIGIBLE) testified.  These are platinum these are so good.  No jury, as Dan just said, even if they decided there‘s a little quibble about when you lie to your girlfriend and I think there‘s very good parts of the testimony for the prosecution in that, this—whenever you are not pretending you know there‘s an anchor up, I don‘t know what the whistle means, I don‘t care.

When you‘re lying to your mother about being somewhere else and you‘re there watching the police, the only reason you are there watching the police, because most people would say oh, my God, the police are out there.  An innocent person would say I hope they find something...

MERRITT:  Oh come on...


MERRITT:  ... this is already weeks later.

ABRAMS:  All right...

MERRITT:  You don‘t stay in that suspended...

ABRAMS:  And look, and the defense...

MERRITT:  ... state of oh, I hope they find something or I hope they didn‘t.

ABRAMS:  Jeralyn, the defense‘s argument here, as we know, is that you know he saw in the papers that they were looking for her body and this and that.  All right.  But you know it‘s not just that.  Listen to this conversation with a friend of his.  He‘s lying about where he is—this is to a friend of his.  And then it seems that he‘s joking about the fact that they found an anchor as opposed to Laci‘s body.


RICHARDSON:  Where are you?

PETERSON:  I am in Buttonwillow (UNINTELLIGIBLE) where you‘re going down 99...




PETERSON:  (UNINTELLIGIBLE) I just got a call from the chief or not the chief, the sergeant...


PETERSON:  ... up at Berkeley.


PETERSON:  Did you hear on the news?

RICHARDSON:  No, what‘s up?

PETERSON:  The object that they‘ve been searching for in all this stuff that they have 88 people in the water for?


PETERSON:  Big old boat anchor.


RICHARDSON:  Oh, shut up.


RICHARDSON:  Are you serious?


RICHARDSON:  Boat anchor...

PETERSON:  (UNINTELLIGIBLE) there‘s a little point of humor, though...

RICHARDSON:  What‘s that?

PETERSON:  ... pretty funny.  There‘s a little point of humor.

RICHARDSON:  Yes, very, actually very funny.




ABRAMS:  (UNINTELLIGIBLE) that‘s a good one.  Dean Johnson, I—you know, I mean the friend is just as much—you know making as much of a sort of moronic comment there joking about it.  But significance, Dean?

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Yes, you know, I wonder about the significance of this at this point.  This jury has gotten the point that the prosecution has tried to make.  Scott Peterson is a liar, his behavior is bizarre.  He‘ll literally lie to his own mother.  But I think we‘ve reached a point of saturation here.

This jury is looking at it saying, OK, the guy is a liar, we don‘t like him.  Prove he‘s guilty of a crime and we‘ll punish him of that.  But we get that point.  Let‘s move on to something that‘s physically, logically in reason, connection...

ABRAMS:  How about this...

JOHNSON:  ... with a crime that‘s charged.

ABRAMS:  All right.  How about this, Dean.  Let‘s listen to him talking about selling his home.  This is a month after Laci disappears.  He‘s still apparently hoping that she is going to be found alive.


PETERSON:  I want to talk to you also about you know selling the house.


PETERSON:  I mean can I do that?  I don‘t know.

ARGAIN:  I believe you can.  I mean I don‘t see why you couldn‘t if that‘s what you want to do.

PETERSON:  Yes.  I mean I need to and we‘re not staying there anyway.


PETERSON:  However this comes out, you know.


PETERSON:  You know, but keep it quiet obviously.

ARGAIN:  Yes, of course.  What - when did you want to look at doing it?

PETERSON:  I mean I‘d like to put it on the market right now.


PETERSON:  I mean there‘s no way if Laci comes back we‘re going to stay there.


ABRAMS:  And he goes on to say they would be willing to sell it furnished, as well.  Dean, what do you make of this...

JOHNSON:  Yes.  I find this enormously significant.  One of the arguments that Geragos made in opening statement was that Scott Peterson was not ready to chunk his idyllic life with Laci Peterson.  Well apparently he was.  He was selling off the car.  He was selling off the house.  He‘s talking about well what if Laci comes home?

Well, if this deal goes through, which legally it can‘t since this is community property if she is still alive, if this deal goes through, she doesn‘t have a home to come to.  He‘s selling it furnished.  He is going to sell off little Conner‘s nursery furniture, how is she going to feel about that when she comes home?  I think this is a very significant point and it fits into a whole to-do list of things that suggest that he was—he had decided that Laci was never coming back and he is adopting a whole new lifestyle.  Those are significant points...

MERRITT:  That‘s not what he said...

JOHNSON:  The jury gets that.

MERRITT:  Wait a minute.  That‘s not what he said.  He said if Laci comes back, there‘s no way she‘d want to stay in this house, because that‘s the house she was abducted from.

FALLON:  Well Jeralyn...

MERRITT:  I think you‘re...


ABRAMS:  Wait.  Wait.  Wait.  Yes.  Yes...


ABRAMS:  Jeralyn, according to the defense she wasn‘t abducted likely from the house.  According to the defense...

MERRITT:  From near the house.

ABRAMS:  Well, near the house, maybe.

MERRITT:  The neighborhood.

ABRAMS:  Right.  Right.  Yes.  Yes.  The neighborhood, yes.

FALLON:  The satanic cult took her...


JOHNSON:  Yes and you‘re telling me, Jeralyn...

ABRAMS:  All right, let me take a quick break here.  Everyone‘s going to stick around.  We‘ve got more of the audiotapes.  Coming up, the jury hears about this program on one of Scott Peterson‘s phone calls.

And explosive charges again against William Kennedy Smith.  More than a decade after he was acquitted of rape, his former personal assistant files a lawsuit, claiming Kennedy Smith sexually assaulted her.


UNIDENTIFIED FEMALE:  I am putting William Kennedy Smith on notice.


ABRAMS:  We hear more of what she has to say.  We talk with her lawyer.

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


ABRAMS:  Coming up, jurors in the Scott Peterson case hear about this program and they hear more of Scott Peterson‘s lies to his family.  Coming up.



RECORDER:  Message erased.  Next message.

J. PETERSON:  I just heard on THE ABRAMS REPORT that she‘s not on the video.  I‘m so sorry.  I was hoping.  You take care.  Love you.  Bye-bye.



ABRAMS:  Jackie Peterson letting her son know that a sighting of his wife in Washington State was false.  You know Jackie and Sharon Rocha out there it seems actively trying to find Laci together.  I mean you know it‘s really—anyway she‘s talking about this program.

You know, Jeralyn Merritt, that‘s what strikes me, is that how much Jackie Peterson and Sharon Rocha were doing to try to find—what they‘re doing is what everyone expected Scott to be doing, and that is following up every lead, presuming that there‘s no way that the body would be found in the exact location—you heard Jackie at one point and Sharon, both of them, saying that there‘s no way that the body will be found in the bay where Scott was fishing because, you know, what that would look like and they just don‘t believe it‘s possible.

MERRITT:  You know, what strikes me is that we don‘t really know what Scott was doing in terms of his efforts.  What it sounds like is that these two mothers, and understandably so, were calling him every five seconds, and he was making up things so that he didn‘t have to either meet with them, talk to them or could keep some distance.  He was being smothered.  It may be as simple as that.

ABRAMS:  So now we‘re blaming the mothers...

JOHNSON:  Jeralyn, come on...


JOHNSON:  Jeralyn...

FALLON:  Blame all the women in his life.  I think that you know the thing is here, what we have is anybody would know whether he was being smothered or not.  The fact that he is out there looking in the bay or being near the police in his lack of caring—you know, this is where lack of caring comes to conscience as a guilt.  If I‘m the prosecutor, I‘m saying at the end, this response is only from someone who knows she‘s never coming home.

I think as Dean just said, I think selling the baby furniture, and getting rids of that is about as bad as it gets in my theory of how they‘re going to—if they‘re going to win this case, how they‘re going to win it.  But let‘s sell the house.  Whether he decides she has no place to come home to if she comes home and has a 1-month or 1-week-old baby, where are they going to live, on the street or are they going to live at Amber‘s.  I think his coldness goes to back to that he knows that she‘s never coming home and they have to hit a homerun with the jury about that because that is consciousness of guilt.

ABRAMS:  Let me play another piece of sound.  This is Scott talking to a friend of his.  This is after—a while after his claim to his sister-in-law that he‘s at the beach, inviting her to come down there.  This is what he says to another friend.


RECORDER:  Please record your message after the tone or to send a numeric message, press two.

PETERSON:  Hey Joan (UNINTELLIGIBLE) 2:45 on Monday and I‘m sorry I missed (UNINTELLIGIBLE) looks like a couple of your calls for the past four days or so.  I went to a grief counseling (UNINTELLIGIBLE) it was out in the hills, no phones.  So anyway (UNINTELLIGIBLE) I should be back in town.  I‘m just leaving that session now and I‘ll give you a call back when I‘m in town.  Thanks Joan.


ABRAMS:  Joan, I mean it‘s like...

MERRITT:  Come on, Dan.  It‘s more avoidance.  He tells the person he hasn‘t returned several calls.  He‘s calling now for all of them...

ABRAMS:  But he‘s lying about the grief counseling...

MERRITT:  ... and he‘s making another excuse as to why...

ABRAMS:  Right.

MERRITT:  ... he‘s not calling—he‘s not getting together with them or calling them.  The guy wants to be left alone a little bit...

FALLON:  Jeralyn...

MERRITT:  I don‘t see what‘s so weird.

FALLON:  Please say it‘s a bad fact.  For once, Jeralyn, say this is a bad fact for the defense.  I feel like every single thing you think—oh, the defense is going to have a field day.  This is...

MERRITT:  Give me a piece of evidence that links him to a crime as opposed to linking him to a story as to why he‘s not going to meet to somebody or be around to talk to them.

FALLON:  Well I think that that does link him to it and that consciousness of guilt that hopefully we‘re going to have.  I‘ll tell you in Massachusetts...

MERRITT:  It‘s not consciousness of guilt.  It‘s avoidance.

FALLON:  Oh, psychiatrist Jeralyn, thank you.  But I guess having dealt with thousands of victims and defendants and victims, I‘m telling you this kind of avoidance is something a murderer does because he is trying to avoid any responsibility for what he does.  I think these are the things that are going to get them.  And in Massachusetts, he would be convicted on this alone.

ABRAMS:  Yes.  I don‘t know.  I‘ve got to tell you I still think this is—the prosecutors have—you know, I don‘t know what‘s going to happen in this case, I don‘t.  But I don‘t think it‘s in any way the slam-dunk...

FALLON:  I never thought it was a slam-dunk...

ABRAMS:  No, I‘m not saying you—the California Attorney General did.

FALLON:  Yes, a mistake.

ABRAMS:  Bill Fallon, Jeralyn Merritt and Dean Johnson, thanks a lot.


ABRAMS:  Coming up, a last-minute hearing in the Kobe Bryant case, less than 24 hours before jury selection is set to begin.  Prosecutors now saying defense experts may have contaminated evidence.  We‘ll get a report.

And William Kennedy Smith accused of sexual assault again.  The first time was in a criminal case.  He was acquitted.  But this time another woman, his former assistant, is taking him to civil court.  She admits she dated him after the alleged assault.  We‘ll talk with her lawyer.

And one of Charles Manson‘s partners in crime makes an impassioned plea to be released on parole and this is the woman who is most likely, that‘s her, to be released of the Manson clan.


UNIDENTIFIED FEMALE:  I‘m so sorry.  I‘m so sorry.



ABRAMS:  Jury selection in the Kobe Bryant case set to start tomorrow, lawyers for both sides in court today for a hearing on some of the evidence that will be used at the trial.  Prosecutors say DNA may have been contaminated.  They also said that data from the defense‘s experts could have been changed or altered.

Attorney and Court TV correspondent Jean Casarez is live in Eagle, Colorado with more on happened today.  All right, Jean, so there was no resolution to this.  We know that.  The judge is going to consider this and make a decision at a future point.  Are the prosecutors essentially saying that they don‘t believe any DNA evidence, any other man‘s semen was found on this woman‘s body when she went to the rape exam?

JEAN CASAREZ, COURT TV:  I think that‘s exactly right what they‘re saying.  They‘re saying that they believe that the swabbing from the alleged victim that were taken, that were tested by the defense, that someone‘s DNA in that laboratory was the actual DNA that became mixed with the alleged victim‘s swabbing and, thus, you have the end result.  The defense saying there is Mr. X, someone that was found on the alleged victim, someone that came after Kobe Bryant and the prosecution is saying, no, we think Mr. X is someone from your laboratory that did that testing.

ABRAMS:  But, the prosecutors did their own test.  I mean it wasn‘t just—it wasn‘t like they got this evidence and then it only went to the defense, right?  I mean the prosecution...


ABRAMS:  ... had an opportunity to test this as well.

CASAREZ:  That‘s right.  They had an opportunity to test it.  They started to test it.  Then the defense said, you know, we want to be around when this testing happens.  Well the laboratory in Virginia that the prosecution was going to have the retesting done with, they said, sorry, defense can‘t be around when we do this retesting.  So, the defense went to court, the judge ordered the defense had a right to be present.  The prosecution then said you know what?  We‘re not going to even retest this.  So in the end, the prosecution did not retest this evidence...

ABRAMS:  But what about the initial...

CASAREZ:  ... only the defense retested it.

ABRAMS:  What about the initial testing done by prosecutors?  I mean I  didn‘t think that there was any dispute that there was some DNA from another man found on her, because my understanding was that the alleged victim‘s position was that she put on a pair of old underwear that, you know, may have had someone else‘s DNA on it that she put on those underwear to go to a rape exam and they said that‘s what explains another man‘s DNA.

CASAREZ:  Right.  Well, what you‘re saying is in the preliminary hearing, the prosecution admitted that someone else‘s DNA was found on the crotch of those panties that she wore to the rape exam.  But they did not test any further to determine what DNA it was or whose DNA it was.

ABRAMS:  All right.  Jean Casarez, I‘ll see you out there in Eagle, Colorado when the trial starts.


ABRAMS:  Thanks very much.


ABRAMS:  Coming up, an impassioned plea from a woman who says that William Kennedy Smith sexually assaulted her almost a decade after he was acquitted of rape.


UNIDENTIFIED FEMALE:  My innocence was involuntarily taken from me in a manner by someone who I trusted and respected.  It was taken in a violent act that will haunt me until the day I die.


ABRAMS:  But then she dated him after the alleged incident.  We talk with her lawyer when we come back.

And a programming note, this Saturday, a special edition of the program where our all-star legal panel will take your questions on the Kobe Bryant case and the Scott Peterson case.  Your questions, abramsreport@msnbc.com.  Tune in Saturday night at 8:00 Eastern.  Where else would you want to be on a Saturday night?


ABRAMS:  Coming up—William Kennedy Smith accused of sexual assault more than—about a decade after he‘s acquitted of rape.  This time, his former personal assistant says he assaulted her, but she admits she then dated him.  We‘ll hear from her and her lawyer, first the headlines.


ABRAMS:  We‘re back.  There are new accusations of sexual assault against a well-known name from a decade ago, William Kennedy Smith.  Remember in 1991 he was acquitted of rape and battery charges against a Florida woman who said she‘d met him in a bar.  Now another woman, this one who worked for Dr. Smith—he is now a doctor—says that she, too, was attacked.

Audra Soulias has filed a civil suit for more than $50,000 in damages.  She says that after a night of drinking five years ago, Dr. Smith forced her into his home on Chicago‘s north side and assaulted her.  Smith has denied the charges, called them untrue and outrageous.  The accuser held a press conference only hours ago.


AUDRA SOULIAS, ACCUSED W.K. SMITH OF RAPE:  I‘ve been repeatedly warned by everyone I‘ve sought guidance from not to do this.  I‘ve been warned that I, my family, and that anyone affiliated with this case can expect to be harassed, ruined and destroyed for bringing these allegations to light.  On January 16, 1999, my innocence was involuntarily taken from me in a manner by someone who I trusted and respected.  It was taken in a violent act that will haunt me until the day I die.

In fact, I would not have come forward had I not been re-contacted by the individual who sexually assaulted me after several years of silence.  I do this today for one reason and one reason only—this is not about money.  I do not wish to see one more woman victimized by this individual.  Enough is enough.  This pattern of behavior has been happening for far too long.  I firmly believe the victims are numerous and wide ranging.

I cannot, in good conscience, be part of this conspiracy of silence.  I cannot believe that the others settled and agreed to remain silent.  I urge anyone that has experienced this by Dr. Smith to come forward.  This is your opportunity now.  The door is open.  Today I am putting William Kennedy Smith on notice; you will not victimize another woman and be able to keep it silent if I can help it.


ABRAMS:  Wow.  If this is true, then she is a brave woman.  But “My Take”—this is going to be a tough case primarily because she dated him after the alleged assault.  How do you get over that?

Well let‘s ask Ms. Soulias‘ attorney, Kevin O‘Reilly who joins us. 

Thanks very much for taking the time.  We appreciate it.  So...


ABRAMS:  ... how do you get over it?  How do you get over the fact that you know everyone is going to say and the concern you‘ve got to have going into any case like this is how do you explain the fact that she dated him after the alleged assault?

O‘REILLY:  Well, first of all, I wouldn‘t call it a dating relationship.  They were in an employment relationship where he was the boss and she was a superior.  She worked for Dr. William Kennedy Smith as his personal assistant.  She did what he said.  Was she kicking and screaming during the subsequent interactions?  No, I don‘t believe that‘s the case.  Was she doing it voluntarily?  When your boss tells you to do something, you have to do it.  And she felt that she was obliged to do that.  There‘s also another...

ABRAMS:  But...


ABRAMS:  ... there was a sexual relationship, I mean right?  Let‘s be clear.  They were in what was a...

O‘REILLY:  He had sex with her.

ABRAMS:  So, he had sex with her and she was being raped throughout the time that they were...


O‘REILLY:  During that time she wasn‘t out crying that this was wrong. 

I mean it‘s wrong for a boss to be having sex with his employees anyway. 

And that‘s just...

ABRAMS:  But...


ABRAMS:  Right.  But that‘s—well that‘s a sexual harassment issue and that‘s different than sexual assault.

O‘REILLY:  Doesn‘t make it OK.

ABRAMS:  Well, no, I‘m just saying that the bottom line, though, is whether it‘s OK or not OK, this is—sexual assault is a far more serious crime than sexual harassment in my book.  Doesn‘t make either one OK.

O‘REILLY:  Most definitely.  But this is a specific type of sexual assault, Dan.  There‘s two types of sexual assaults.  There‘s one where there‘s an unknown assailant and in that circumstance, the rape victim has a very clear pattern.  They call the police right away.  They get their injuries treated.  They go to the hospital and have a rape kit done.  There‘s a very clear pattern in another type of rape case that‘s very difficult for prosecutors to prove.  It‘s called an acquaintance rape case and that‘s what this was.

This is a situation where there is a pattern of behavior that‘s much different than the—when the rapist is not known by the person who‘s been raped.  Now when there is an acquaintance rape case, there is—the separate pattern of behavior sometimes includes subsequent sexual contact with that person.  It includes shame, guilt, embarrassment, but also trying to deal and resolve these issues, to change what happened to them, to try to change history of what happened to them.  I think it‘s clear in the text that this is a psychological phenomenon that occurs in acquaintance rape cases.

ABRAMS:  Here is an investigator, I believe who‘s working with William Kennedy Smith, talking about the fact that he‘s suggesting that this is about money.  I want you to respond to him.  Let‘s listen.


ERNIE RIZZO, WILLIAM KENNEDY SMITH‘S P.I.:  Here‘s her bill.  She owes $60,000 to Saks Fifth Avenue, $91,000 in clothing bills.  She just went through a bankruptcy.  She needs money.  It‘s very simple and she found it.


ABRAMS:  Mr. O‘Reilly, your response.

O‘REILLY:  I don‘t—Mr. Rizzo has as a complete lack of credibility.  He has nothing to do with this case at all.  He was—if he was hired by Dr. Smith, I believe it was probably today, right before his press conference that he was hired and he‘s willing to come out and be a part of the slander machine that‘s going to go on.  That‘s what‘s going to take place here.  We knew that Dan going into this.

We knew what type of team we were going up against.  We knew what we were going to face and we‘re going to hit it head on.  But we‘re going to play it according to the rules and I think that this type of smear campaign is going to be part of this case; it‘s not going to come from our side.  We will have credible witnesses.  We will have credible evidence and we will prove the theory of our case...

ABRAMS:  And I have to say, do you actually still have the voice mail messages?  Apparently in your complaint, you talk about a number of voice mail messages that he left, where he‘s apologetic.  Let me actually—if we can go to number one here, if we‘ve got it.

The plaintiff received four separate voice mail messages from the defendant, apologizing for his behavior and stating it‘s not your fault.  I have a problem.  I‘ll get help if you want me to.  He further stated the plaintiff would experience various stages of grief as a result of the assault and that she would contact him from him for help.  Do you still have those voice mail messages?

O‘REILLY:  We do not have copies of those voice mail messages.  They were never taped.  They were played for three different individuals that we do know of.  One, the sister of the victim who came forth today and gave a statement regarding those tapes and what she remembered of them.  There‘s also two other persons that are named in my complaint that listened to those tapes shortly—that listened to those messages shortly after the assault...

ABRAMS:  I‘m out of time.

O‘REILLY:  ... and as well, those individuals viewed the bruises on my client‘s arms as well they saw the shock and distress that my client...

ABRAMS:  Very quickly, is this—I mean this is just a civil case, right?  I mean the authorities are not going after him criminally.

O‘REILLY:  This is, first of all, beyond the statute of limitations.

ABRAMS:  Right.

O‘REILLY:  Second of all, it‘s very, very difficult to prove an acquaintance date rape case.  She did go to the authorities at one point after she heard of additional harassment—sexual harassment that was taking place in the workplace and she wanted to put a stop to it.  At that point, she felt guilty that she didn‘t come forward earlier and that she needed to come forward at that time.

She did give a sworn statement.  She voluntarily undertook a polygraph, which she passed and took that to law enforcement persons who advised her that this isn‘t really a feasible case that we can prosecute...

ABRAMS:  All right, we shall...

O‘REILLY:  ... and the authorities will not take...

ABRAMS:  We shall follow the case.  Kevin O‘Reilly, thank you very much for taking the time.  Appreciate it.

O‘REILLY:  Thanks Dan.  Truly appreciate it.

ABRAMS:  Coming up, President Bush and Senator Kerry spar over this now infamous campaign ad, but what‘s the law behind everything?  We talk with the Bush campaign lawyer who resigned after being linked to this ad about Kerry‘s war record.



UNIDENTIFIED MALE:  I know John Kerry is lying about his first Purple Heart because I treated him for that injury.

UNIDENTIFIED MALE:  John Kerry lied to get his Bronze Star.  I know. 

I was there.  I saw what happened.


ABRAMS:  Some powerful ads—part of one the political ads that aired by a group that calls itself the Swift Boat Veterans for Truth, attacking Democratic presidential candidate John Kerry‘s service in Vietnam.  Now the Kerry campaign and many others who were with him in Vietnam say the charges are simply untrue.  And the Kerry campaign has charges of its own, claiming the Swift Boat Veterans have coordinated their ads with the Bush campaign, which would violate federal election law.

On Tuesday, the chief outside counsel to the Bush campaign, Benjamin Ginsberg, resigned after he disclosed that he had advised the Swift Boat Vets.  Mr. Ginsberg said, I‘ve done some work for them.  The law lets lawyer do that.  Now liberal groups like MoveOn.org had run ads blasting President Bush.  Today, a White House spokesman said President Bush wants to go to court with Senator McCain to put an end to all political ads put out by what he called shadowy outside groups.

“My Take”—as a legal matter, Ginsberg did not have to resign.  There are Democratic lawyers doing the same thing representing outside groups who are putting out ads and then also working on the campaign.  I‘ve not seen any evidence to suggest Ginsberg improperly linked the Bush campaign with this ad.  But also as a legal matter, I think the president‘s team knows that these ads from outside groups will be nearly impossible to ban.

Big First Amendment problems and regardless, there‘s no way that any legal action will affect this election.  Rather than just condemning the anti-Kerry ads, the Bush campaign is just avoiding the issue by claiming they want to go to court.

Joining me now is the man at the center of the storm, former chief outside counsel to the Bush campaign Benjamin Ginsberg.  Good to see you again Ben.  Thanks...


Thanks for having me.

ABRAMS:  All right, I‘ll take those issues separately.  Let me deal with issue number one.  It was clearly a political decision, right, not a legal decision for you to step down?

GINSBERG:  No.  It was my decision because, regrettably, and very sadly for me, personally, the legal work that I was doing was going to be used really by the Kerry smear machine to sort of stand in the way of the president‘s positive message he wants to get out for this country.

ABRAMS:  How could you, though, have not known when you advised them -

·         were giving legal advice that this was going to be a very explosive ad that was going to lead to a lot of allegations or incriminations that you might say to yourself not as a legal matter, but as a political matter, this is a hot potato I don‘t want to touch.

GINSBERG:  Well, I think one really should not avoid hot potatoes as a lawyer.  What I saw, Dan, was a group of decorated veterans who had a point of view they wanted to help get out in the political debate.  My job was to be sure and what they asked me to do was to comply with the law.  I was honored to be able to do that and I would do it again in a heartbeat.

ABRAMS:  Let me ask you about the second point that I made that, you know, this as a legal matter, I mean, you know, the White House spokesperson now saying that the president wants to go with John McCain to try and ban all of these.  Well you know, you know as I do that that, “A”, is not going to affect the election.  Would you agree with me on that—that even if legal action at this point is not going to affect the ads in this election, right?

GINSBERG:  Well, I think the timing of the way the process of these types of actions work, no, it will not...

ABRAMS:  Right.

GINSBERG:  ... affect this election.

ABRAMS:  All right.  And then so number two, that it will be very hard to get all of these outside—what they‘re calling the shadowy outside groups.  I mean as a legal matter that is going to be a very, very hard thing to do because of the First Amendment.

GINSBERG:  Well, I think that what the suit will attempt to do and what the original complaint that the suit will be based on that I had something to do with is to say that these groups should have to operate under the same laws as campaign committees and political party committees so that the general idea behind the suit would be to not accept soft money or large contributions from individuals or corporations or unions.  So, that‘s the aim of the suit.

ABRAMS:  But you have to admit that the way that they are making it

sound, it sounds like what they‘re saying is we don‘t want these—quote -

·         “shadowy outside groups” to be able to put out ads like these when the president won‘t just say, you know what?  This ad in particular is a bad one.

GINSBERG:  Well, I mean I think that is hardly the issue.  I mean let‘s look at the reality of what this ad was like.  These were decorated veterans who put $500,000 worth of an ad.  The president has been the recipient of $63 million worth of purely negative ads from Democratic outside groups already.

ABRAMS:  But there‘s something different...

GINSBERG:  ... so the proportionality...

ABRAMS:  But there‘s...

GINSBERG:  ... no, Dan...

ABRAMS:  But Ben, wait a sec.  There‘s something different when it comes to challenging someone‘s military service.  You don‘t agree with that?

GINSBERG:  Well, look, where was the outrage that you‘re expressing there when Michael Moore accused the president of being a deserter and when Terry McAuliffe, the head of the Democratic National Committee in April said he was AWOL.


GINSBERG:  Where was your outrage there then Dan?

ABRAMS:  I‘ll tell you where it was.  You saw it here and on other programs when people were doing a truth squad evaluation of what Michael Moore said and what was true and what wasn‘t and for example, evaluating Michael Moore‘s claim that the FBI never questioned the bin Laden family before they got on a plane.  Well it turns out, you know, that...

GINSBERG:  What about Terry McAuliffe, Dan?  Why was there no outrage then?  That was how many months ago in April and there was no outrage about the head of the Democratic National Committee saying that the president of the United States was AWOL when that was blatantly false.  So, let‘s get into the double standard that the media has used...


GINSBERG:  ... to evaluate these claims, Dan...

ABRAMS:  First of all, I have to tell you, to suggest the media is applying a double standard, I mean I was—this was going to be a legal discussion, but you know we have interesting discussions regardless.  You know the notion that like this sort of media double standard out there is just nonsense.  The bottom line...

GINSBERG:  Well Dan, let me give you another example.  I‘ll tell you about my own situation.  I represented an outside group and I represented the Bush campaign.  Absolutely true.  It was equally true that, starting in March, my colleagues on the Democratic side, the counsel for the Kerry campaign, was representing that campaign and he was representing America Coming Together.

ABRAMS:  And you actually filed papers—was that the case in the one you filed papers for, the Federal Election Committee...

GINSBERG:  Well the case that we filed never talked about the role of lawyers because the role...

ABRAMS:  Right.

GINSBERG:  ... of lawyers representing...

ABRAMS:  Right.

GINSBERG:  ... is perfectly appropriate.

ABRAMS:  Right.

GINSBERG:  But that leads to the other part of the double standard.  Those groups include Harold Ickes, a member of the Democratic National Committee Executive Committee whose doing the ads for the media fund.  Why no outrage over that political coordination...

ABRAMS:  And...

GINSBERG:  ... which is...

ABRAMS:  ... And I‘ll tell you, the answer I think is clear, that the public views military service as different.  As I said at the top of the show, I think...

GINSBERG:  Well...

ABRAMS:  ... that people are suggesting that somehow you provide a link between the campaign ads and the veterans is nonsense because I haven‘t seen one bit of evidence...

GINSBERG:  And there is no...


GINSBERG:  And there is no evidence.

ABRAMS:  All right.  Look...

GINSBERG:  But, Dan, that goes...

ABRAMS:  Final word...

GINSBERG:  ... to the smear machine...

ABRAMS:  All right.  I‘ve got to wrap it up.  Ben Ginsberg, always good to talk to you.  I appreciate it.  Good to see you.

Coming up—one of Charles Manson‘s followers pleads for mercy from the murder victim‘s family as she asks to be released on parole.


UNIDENTIFIED FEMALE:  I have taken very, very seriously these years to rectify what happened.



ABRAMS:  Coming up, one of Charles Manson‘s partners in crime makes an impassioned plea to be released on parole.  We‘ll tell you what happened.  She‘s the most likely one to be released.


ABRAMS:  Charles Manson, just his name and face conjure up images of pure evil.  Thirty-five years after he led his followers on a brutal murder spree in California, one of them trying to get out on parole.  Leslie Van Houten convicted for murdering Leno and Rosemary LaBianca in ‘69 and she‘s been in prison ever since.  She‘s tried several times unsuccessfully to be released on parole.  And this week, she went before a California parole board for the 16th time.  Many say she could eventually be released.

Mary Parks of NBC‘s (UNINTELLIGIBLE) station KNBC has the story.


UNIDENTIFIED FEMALE:  When I think back on the night of August 10, all I think about is the horror that those two very, very innocent human beings were subjected to.

MARY PARKS, KNBC CORRESPONDENT (voice-over):  But during dry-eyed, often rambling remarks, Leslie Van Houten blamed her role in the 1969 Manson family murders on drugs, brain washing and fear of Charlie Manson.  Statements that raise the ire of prosecutor Stephen Kay.

UNIDENTIFIED MALE:  When she weighed in her mind about participating in murder that was before the Tate murders.

PARKS:  Van Houten was a 19-year-old Manson disciple when she helped stab grocers (ph) Rosemary and Leno LaBianca in their home.  A two-person state parole board read 49 letters of support.  But nearly twice as many people penned notes opposing Van Houten‘s parole, including the LaBiancas‘ daughter.

UNIDENTIFIED MALE:  I believe it is important for those of you making the decision here today to realize that what happened 35 years ago is still happening.

VAN HOUTEN:  I believe that I am a rehabilitated woman.  Doesn‘t mean it is any easier to live with myself and what I did but I could certainly function in society.

PARKS:  Commissioners have said at this hearing and others in the past, Van Houten needs more therapy and called her remorse superficial.  She‘s up for parole again in 2006.

Mary Parks, Channel 4 News.


ABRAMS:  Again, we‘re running late on time so we‘re going to go right to “Your Rebuttal”.  A lot of e-mails, again, about the Scott Peterson case.  Yesterday we heard more audiotapes played in court but not just with Amber Frey.  On one Peterson tries to put his home on the market a month after Laci was reported missing.  I said that‘s not incriminating, particularly compared to the other tapes, because he could argue he just wanted to get away from a home that reminded him of this entire episode.

Kim Colabucci from Maryland writes, “Can you for one minute if you really had a pregnant wife missing and you hoped she would return imagine that you would try to sell the home you had together with the baby‘s room decorated and ready with his name on his nursery door without her having any say in it or asking what her preference would be?”

No, Kim.  I can‘t.  But compared to the lies, I think this is not that significant in establishing guilt.  We already know he is selfish and is acting unlike your typical grieving husband, but this doesn‘t really add a whole lot new I didn‘t think.  I don‘t know.

Patty Matthews from Claremore, Oklahoma writes, “Think about it Dan.  Don‘t you think Laci would have been thrilled to be home, sit in her favorite chair and sleep in her own bed?”

Amy-Leigh Mack from Charlotte, North Carolina asks, “The prosecution is doing a great job proving that Scott Peterson is a liar, so why in the world, if he‘s such a liar, are they hanging their case on him telling the truth about where he was fishing on the day Laci went missing?”

Because they have independent evidence to back it up.  His receipt from the marina, phone records, et cetera.

Kay Phelps from Michigan writes about one of our guests, Judge Leslie Crocker Snyder.  “Dan, I was watching your show last night with Judge Snyder and was very upset by her comment about Scott Peterson being a son of a “blank” and she said “blank”.  Does she realize that Mrs. Peterson deserves more respect than that?”

All right.  That wraps it up for this edition of the program.  Thanks for watching.

“HARDBALL” with Chris Matthews is up next.  I‘ll see you back here tomorrow.  He‘ll be dealing with Abu Ghraib and also the campaign ads that we were just talking about.  


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