updated 8/29/2004 4:59:44 PM ET 2004-08-29T20:59:44

Guests: Robert Hirschhorn, Norm Early, Jeralyn Merritt, Ernie Rizzo, Leslie Crocker Snyder, Colin Starger, Mercedes Colwin, David Carruthers

DAN ABRAMS, HOST:  Coming up, more than a year after Kobe Bryant is arrested and charged with rape, his trial gets started today.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Hundreds of prospective jurors show up at the Eagle County courthouse.  The question—what does Bryant want in a juror?  What about the prosecution?  The trial is on.

Plus, William Kennedy Smith flatly denies allegations he sexually assaulted his former personal assistant who then dated him afterwards.  A private investigator says he can prove she has a motive to lie.  He joins us.

And hundreds of thousands of protesters converge on New York City.  Thousands of police are waiting, and so are hundreds of lawyers.  Are they objective observers or just, well, lawyers for the protesters waiting to stir up trouble?

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First on the docket tonight: After a lot of speculation in the past few weeks that it wouldn‘t happen, Kobe Bryant‘s sexual assault trial got under way today.  The first wave of potential jurors in the case filing into the Eagle County Courthouse this morning.  Let‘s head right to the courthouse.  NBC‘s Mark Mullen joins us from there.

So Mark, what happened today?

MARK MULLEN, NBC NEWS CORRESPONDENT:  Interesting, a lot did, but it happened behind closed doors.  But it‘s really significant especially I‘m struck, Dan, by what you said in the beginning.  There has been so much negative publicity.  So many comments by so many people that the prosecutor‘s case had been so significantly weak and it just wouldn‘t go on.

Apparently, the D.A. feels strong enough about his case to proceed.  That‘s exactly what happened today with all of these prospective jurors coming.  Let‘s let all of you at home give you - we‘ll give you sort of a big picture to know exactly what‘s happening.  Nine hundred ninety-nine summonses were mailed out.  Of that number 167 could not be delivered or 150 people were excused.

We‘ll remind you this is a ski resort town, which is about 125 miles west of Denver.  It‘s very seasonal so a lot of folks don‘t live here.  That left about 500 prospective jurors expected to come here today.  It‘s a large number of people so they have basically parceled them out in four different groups.  They are here filling out an 82-question questionnaire.  Those questionnaires will be copied.

Both sides of this case—attorneys on both sides will review them over the weekend.  They‘ll coal them down, try to figure out who‘s a good witness, who‘s not.  And Dan, from that cut, people will be invited next week back to the courthouse at which they will be interviewed first privately and then publicly in an effort to seat 12 jurors and two alternates.

As you have been reporting along since this case first started, Dan, an extraordinary amount of publicity in this case.  What‘s different about this, though, there‘s a lot of bad publicity, not only about the defendant, but also about the accuser as well.

ABRAMS:  Mark Mullen, thanks so much.  Appreciate it.

Question:  So how difficult will it be to find a fair and impartial jury in this case and who‘s the ideal juror?  You hear that all the time, right?  “My Take”—it‘s going to be easy.  In every high-profile case I hear lawyers whining about not being able to find jurors who are going to be fair.  And yet in every case from Watergate to O.J. Simpson in the civil trial they‘ve been able to find impartial jurors despite massive media coverage.

Not everyone is following every detail like I am.  Let‘s bring in our legal team—former Denver D.A. and MSNBC analyst Norm Early, Denver based criminal defense attorney Jeralyn Merritt, and jury consultant Robert Hirschhorn who worked with Bryant‘s defense team earlier this year.

All right, Robert, let me start with you in terms of what we‘re looking for in terms of jurors.  I want to go through the profile that you created here.  Let‘s go through it one by one.

(CROSSTALK)

ABRAMS:  With regard to the prosecution, you say they are looking for married men.  Why?

ROBERT HIRSCHHORN, JURY CONSULTANT:  Well, the reason is because married men tend to be very judgmental of other men that go outside that marital vow.  So married men could be very well problematic for Kobe.

ABRAMS:  Older women 60-plus.

HIRSCHHORN:  They take a look at the complainant in this case and they could be saying that‘s my granddaughter.  On the other hand, you know, they could be saying well, my granddaughter would never go up to the room by herself.

ABRAMS:  Yes, that‘s what I would be concerned about.

HIRSCHHORN:  Yes.

ABRAMS:  The older women saying what is she doing up in the room?

HIRSCHHORN:  Yes, but older women tend to be, you know, really they want - they‘re nurturers.  They want to take care of their grandchildren.  So I think that‘s something the prosecutors would probably want to look at.

ABRAMS:  Yes, obvious people who dislike celebrities and athletes and then you say liberal.  Unusual for the prosecution side, right?

HIRSCHHORN:  Yes, absolutely.  Because typically liberals are on the side of the underdog, and that‘s not the kind of person that prosecutors typically look for.  Here they want—liberals tend to see themselves as people that are on the side of the victim or the underdog...

ABRAMS:  Particularly women‘s rights, right?

HIRSCHHORN:  Exactly.  You know the other things Dan they‘re obvious. 

Like they want people that have been a victim, people have already formed an opinion that Kobe is guilty.  They would probably want racists.  I mean I don‘t like to say that, but that‘s what the kind of things the prosecution will look at.

ABRAMS:  Yes.  I can just see them asking the question so when was the last KKK meeting you went to?

HIRSCHHORN:  It‘s much more subtle than that.

ABRAMS:  Yes, I know...

HIRSCHHORN:  You know they‘d be talking about relationships and interracial relationships...

ABRAMS:  Yes.

HIRSCHHORN:  ... those things.

ABRAMS:  All right, juror profile for the defense, you say younger women?  Interesting because you think younger women are going to judge her harshly?  Won‘t some younger women say look, I can see why she went up to the room.  She wanted to fool around.  She didn‘t want to have sex.

HIRSCHHORN:  Yes.  My experience has been doing a whole lot of these types of cases what we find is women tend to be very judgmental of their own and I think younger women would be good.  The other thing is younger women may know something about this complainant and her reputation...

ABRAMS:  Yes.

HIRSCHHORN:  ... and that could again be something that could help Kobe.

ABRAMS:  College educated.  Again, why not - why wouldn‘t that go to the prosecution side?

HIRSCHHORN:  Dan, remember Mr. X, if that - if and when that Mr. X.  evidence comes out that‘s the type of forensic evidence that you want educated people to understand and appreciate and...

ABRAMS:  Mr. X meaning another...

HIRSCHHORN:  ... that is devastating to the prosecution.

ABRAMS:  ... another person whose DNA may have been found...

HIRSCHHORN:  Correct.

ABRAMS:  ... on the alleged victim?  All right...

HIRSCHHORN:  Exactly.

ABRAMS:  ... defense, obviously, a sports fan and you say conservative that goes against the liberal.  All right.  Before I talk to the legal team about the issue of jurors asking questions, very quick overview, Norm Early, what do you make of Robert Hirschhorn‘s assessments?

NORM EARLY, FORMER DENVER DISTRICT ATTORNEY:  Well, you know I think everything he‘s saying has a flip side to it.  Like the Mr. X thing, an educated person will look at this defense evidence about Mr. X and go phooey, it doesn‘t make sense.  I don‘t believe it.  Just as easily as they could say...

(CROSSTALK)

EARLY:  ... yes, I understand it.  So I think—you know like when I‘m looking for a jury, I want a jury that relates to me and that thinks like me and that thinks like my victim and can relate to my victim.  I think that those relationship issues are far more important...

ABRAMS:  And to be fair to Robert Hirschhorn, he has made that point to us before and we asked him for...

EARLY:  OK...

ABRAMS:  ... a demographic breakdown.

EARLY:  OK.

ABRAMS:  All right, Jeralyn...

(CROSSTALK)

ABRAMS:  ... Jeralyn, let‘s talk about the issue of jurors asking questions here.  What do you make of the fact that these jurors are going to be able to submit questions for the first time in Colorado history?

JERALYN MERRITT, CRIMINAL DEFENSE ATTORNEY:  I don‘t like it.  I don‘t like it at all.  First of all, you know, the role of the juror is to determine the facts, to be the fact-finder.  They are not supposed to be the advocate.  By having the jurors ask questions, you‘re changing their role.  You‘re putting them into the role of inquisitor.

Second of all, the other problem with it is when you get into a trial there‘s evidence that‘s been suppressed.  There‘s areas of questioning that the judge has ruled can‘t be gone into.  And the jurors don‘t know that.

ABRAMS:  But the judge...

MERRITT:  So they‘re going to ask questions...

ABRAMS:  But Jeralyn...

MERRITT:  ... and the judge—and they are not going to be answered.

ABRAMS:  Right.

(CROSSTALK)

ABRAMS:  The judge is still going to say—the judge is still the one who gets to decide do the questions move forward...

(CROSSTALK)

ABRAMS:  Go ahead.

MERRITT:  OK, but that‘s not the point.  The point is you worry that they are going to hold it against one side or the other that their question wasn‘t answered...

ABRAMS:  OK.  Norm...

MERRITT:  ... and that...

ABRAMS:  I got it.

MERRITT:  ... is a really big problem.

ABRAMS:  Norm, what do you make of that?

EARLY:  Mark this day down on your calendar because I agree with Jeralyn.  One of the things that I do believe is that if they set up a procedure for these jurors to ask questions, the defense attorney nor the prosecution should be able to know who is asking the question, what question they‘re asked, or even that they asked a question, and the only way to do it effectively is to take them back to the jury room after every witness, ask them if they have any questions, if they do deal with them.  If they don‘t, bring them back in for the next witness.  Otherwise as a prosecutor, if I‘m sitting there and I know someone‘s thinking a certain way...

ABRAMS:  Yes.

EARLY:  ... I will address the rest of my case and adjust it somewhat so that I can meet that...

ABRAMS:  Very...

EARLY:  ... and that‘s really...

ABRAMS:  Very quickly Norm, both the prosecution and defense objected to this, right?  They didn‘t want it.  Is that right?

EARLY:  I don‘t think...

ABRAMS:  Jeralyn, is that right?

EARLY:  ... anybody on this case wanted it.

MERRITT:  I know the defense objected.

ABRAMS:  Yes...

(CROSSTALK)

ABRAMS:  Bottom line is the lawyers hate it.  I know the lawyers hate it.  They hate the idea that the jurors might be able to do a better job than you Jeralyn...

(CROSSTALK)

ABRAMS:  ... or you Norm...

(LAUGHTER)

ABRAMS:  I know it‘s hard for you to accept...

HIRSCHHORN:  That‘s a great idea.

EARLY:  Oh, thanks a lot Dan...

ABRAMS:  That‘s why...

(CROSSTALK)

ABRAMS:  That‘s why you‘ve got your jury consultant...

(CROSSTALK)

ABRAMS:  ... Robert Hirschhorn, who is the juror‘s advocate saying let them ask questions...

(CROSSTALK)

HIRSCHHORN:  You bet you.

ABRAMS:  ... and the lawyer is saying no, no, no.

HIRSCHHORN:  They are the fact finders.  I teach my kids, Troy and Mickey (ph), to ask questions.  I want my jurors to ask questions.  That teaches the lawyers what‘s being—what‘s important and what‘s getting through to the jury...

ABRAMS:  I see no problem...

HIRSCHHORN:  I think it‘s a great idea.

ABRAMS:  I see no problem with it as long as the judge is very careful as to what questions move forward.

Norm Early, Robert Hirschhorn...

EARLY:  And the way of the procedure...

ABRAMS:  ... and Jeralyn...

EARLY:  Thank you Dan.

ABRAMS:  All right, Jeralyn, stick around.

MERRITT:  OK.

ABRAMS:  Programming note—we‘ll be here tomorrow night with a special edition of the program—your questions about the Kobe Bryant trial and Scott Peterson cases.

Your e-mails abramsreport@msnbc.com.  We‘ll be answering questions on the Peterson trial as well.  Tune in tomorrow 8:00 p.m. special edition—

Saturday night.

Coming up, more on the Peterson case.  Mark Geragos picks apart the prosecution‘s timeline at the end at what was a strong leap for the prosecution.

And get this, people bet on everything, right, but the outcome of trials?  Wait until you hear the odds on Scott Peterson‘s chances of being convicted.

And up next, she says William Kennedy Smith sexually assaulted her more than five years ago, but does she have a reason to lie?  That‘s what a private eye in Chicago says.  We talk with him after the break.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, William Kennedy Smith flatly denies allegations he sexual assaulted his former personal assistant who then dated him afterwards.  Coming up this week.  A private investigator says he‘s got the goods on why she may have a motive to lie.  He joins us next.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

AUDRA SOULIAS, SUING WILLIAM KENNEDY SMITH:  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.

(END VIDEO CLIP)

ABRAMS:  You heard it here Thursday, Audra Soulias, the Chicago woman who claims Dr. William Kennedy Smith sexually assaulted her on her 23rd birthday when she was his personal assistant back in 1999.  Now she‘s suing Smith for $50,000.  Her legal claim, well it‘s based on a phone call that Smith made in January that she says caused her severe emotional distress, physical distress, and mental anguish.  He says the call was about corporate reorganization.

Here‘s what she claims he said in her filing.  It says on January 9, 2004, the defendant left two voice messages on the plaintiff‘s voice mail stating in a threatening manner that he had received some disturbing news about statements she had made about him and he insisted the plaintiff contact him immediately.

Of course, William Kennedy Smith became notorious after a ‘91 rape trial where he was acquitted.  Here‘s part of his statement responding to the charges.

Quote—“The allegations being made are absolutely false and misleading.  I have resigned myself to the fact that my personal history and that of my family make me a target for allegations like these.  I‘m confident these unfounded charges will soon be seen for what they are.”

Ernie Rizzo is a private investigator in Chicago and Dr. Smith asked him to talk to the press about the case and he joins us from Chicago.  Good to see you Ernie.  All right...

ERNIE RIZZO, PRIVATE INVESTIGATOR:  How are you doing Dan...

ABRAMS:  ... what do we make of the—you say that the charges are nonsense.  Why?

RIZZO:  This is the dumbest stupidest thing I‘ve ever seen.  First of all, she dated this guy back in ‘99.  She slept with him for six months.  She claims the first time she slept with him, he raped her, but all the other times that wasn‘t a problem.  He started dating her.  As soon as he started dating her she starting buying clothes -- $91,000 in furs, jewel and jewelry on a $23,000 salary.

When he dumped her, she filed bankruptcy, and ever since that time she has been trying to get this story in the papers.  She‘s going to the tabloids.  She‘s even gone to NBC two years ago.  Nobody wanted to touch her story.  She went to every lawyer and nobody wanted to file a lawsuit...

ABRAMS:  How do you know this?

RIZZO:  Finally—because I checked it out back a year ago.  As a matter of fact, I sat Dr. Smith down with his lawyers, we went over the whole thing and Smith just said you know she‘s angry I dumped her.  That‘s the end of it and he didn‘t do anything about it a year ago when I talked to him.

ABRAMS:  Let me give you...

(CROSSTALK)

ABRAMS:  Let me let you listen to Kevin O‘Reilly, the attorney for the woman.  And he—this is how he describes the—quote—“dating relationship” that you just talked about.

(BEGIN VIDEO CLIP)

KEVIN O‘REILLY, WILLIAM KENNEDY SMITH ACCUSER‘S ATTORNEY:  I wouldn‘t call it a dating relationship.  They were in an employment relationship where he was the boss and she was his 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.

(END VIDEO CLIP)

ABRAMS:  And Ernie, what do you make of that?

RIZZO:  He really talks silly.  I‘ll tell you something.  First place, this lawyer met her last week Friday and everybody else turned her down and he somehow jumped on it.  I think he‘s got himself in a bag in this one.  But can you imagine what the man is saying?  The first time she didn‘t like it but she went and slept at his apartment for the next six months and that was no problem because he said hey, come on over and go to bed with me.  Do you realize how silly this is?

ABRAMS:  Ernie, there have been other reports...

RIZZO:  I‘ll tell you—and Dan, let me tell you.  This case will be thrown out the first day it‘s in court.

ABRAMS:  It may be...

RIZZO:  This case is going nowhere...

ABRAMS:  Well...

RIZZO:  Oh, no maybe.  Thrown out...

ABRAMS:  Well, you know, look, we‘ll get the legal analysis in a minute.  But the—but let me ask you the facts.  The bottom line is this has been an issue that has dogged William Kennedy Smith both before the case and after, right?

RIZZO:  William Kennedy Smith has to stay celibate the rest of his life because every time he dumps a girlfriend this is what‘s going to happen unless he files a suit against her and her attorney, that may stop this and I think that‘s what he‘s going to do.

ABRAMS:  All right, let me—Ernie, stick around for a minute.

“My Take”...

RIZZO:  Sure.

ABRAMS:  ... whether it happened or not she will have a nearly impossible time wining this lawsuit.  She is not even claiming she was sexually assaulted because the statue of limitation has expired.  Instead, she‘s basing it on a phone call, saying that a phone call caused her emotional distress.  And as Mr. Rizzo and everyone seems to agree she did date him after the incident.  This case will do, I think, a disservice to rape victims everywhere.  Not because I‘m saying she‘s lying—I have no idea—but because they will never be able to prove the sexual assault.

My guests may have a different take on this.  Let‘s check in with retired New York State Supreme Court Justice and NBC News analyst Leslie Crocker Snyder and criminal defense attorney Jeralyn Merritt.

Leslie, what do you make of it?

LESLIE CROCKER SNYDER, FORMER NY STATE JUDGE:  Well, I can‘t disagree with you for a change, Dan, although we do agree often.  It does sound pretty weak.  But you know what really disturbs me?  William Kennedy Smith, of course, was acquitted because he had an excellent attorney, Roy Black, and maybe he was innocent.  I don‘t know.  I‘m not really being serious when I say that.

But sexual predators are recidivist.  What I find fascinating is I think this lawsuit has almost zero chance of succeeding but isn‘t it interesting that two other women filed sexual harassment charges against William Kennedy Smith with this commission or committee with the Equal Employment Commission this past year?

Now, whether that gave this woman an incentive to proceed or to lie, she claims she has immediate outcry witnesses, that she was discouraged from proceeding.  That people told her at the time this happened that no one would ever believe her.  But I mean the truth is that I think the most disturbing thing is a possible pattern of conduct, the charges of sexual harassment.  And so even though this probably won‘t go anywhere, I don‘t know.  Let‘s not dismiss the alleged conduct so lightly.

ABRAMS:  Let‘s listen to Audra‘s younger sister saying that she was told about the alleged sexual assault at the time.

(BEGIN VIDEO CLIP)

MELISSA SOULIAS, KENNEDY SMITH ACCUSER‘S SISTER:  At that time Audra told me of the events regarding the assault and she was in total shock.  She showed me the bruises on her arms where she was pinned to the bed.  She replayed the messages on her voicemail from Dr. Smith that she received that morning.

(END VIDEO CLIP)

ABRAMS:  Now, they don‘t have those voice mails.  Those are probably -

·         seem to have been the most incriminating ones but they don‘t have those voice mails Jeralyn Merritt.

MERRITT:  No, of course not.  They have nothing.  This is pathetic.  As you pointed out, Dan, it gives real rape victims a bad name.  It‘s one of the things that prevents people from going forward.  I mean come on.  Who says they were raped by somebody on one night and then engages in a voluntary dating relationship with them for a period of up to six months and voluntarily sleeps with the person?  You know it just makes no sense...

CROCKER SNYDER:  Well you know let me just say something about that Jeralyn, although I agree with you that this sounds like a crappy case.  I mean the truth is that one of the theories of sexual harassment in the workplace is that victims do actually feel compelled to conduct themselves in a certain way because of the dominating relationship of boss or employer-employee.  Again, this doesn‘t sound very good here, but I mean that is a theory.

ABRAMS:  And that‘s what Kevin O‘Reilly, the attorney for the woman said on the program last night.

(CROSSTALK)

ABRAMS:  Hang on.  Hang on.  Let‘s listen.

(BEGIN VIDEO CLIP)

O‘REILLY:  When there‘s an acquaintance rape case, there‘s a 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.

(END VIDEO CLIP)

ABRAMS:  I‘ve got to wrap it up.  Kevin O‘Reilly was on the program last night.  Ernie Rizzo on the program tonight.  Leslie Crocker Snyder and Jeralyn Merritt, Ernie Rizzo, thanks very much.  Appreciate it.

MERRITT:  Sure.

RIZZO:  Any time.

ABRAMS:  Coming up, from naked people to wall climbers, hundreds of thousands of protesters heading to New York at the RNC Convention.  The police say they are ready.  And so do the lawyers.  The lawyers?  Whose side are they on?  I‘m betting they‘re not objective observers, but we‘ll have one of them on.

And more phone calls we had not heard from the Scott Peterson case coming up later in the program...

(COMMERCIAL BREAK)

ABRAMS:  The Republican National Convention doesn‘t get under way in New York until Monday, but anti-Bush, anti-war, anti whatever you got protesters are already out there trying to get their messages across, and in some cases getting arrested in the process like the four protesters who hung this banner on the front of The Plaza Hotel.  And there were the protesters from the ACT UP group who acted up by peeling down outside Madison Square Garden where the convention will take place.

But it seems that the protesters already have lawyers.  The National Lawyers Guild alone will have 500 -- quote—“legal observers on the street”.  Now they say they are objective observers but admit they‘ll be looking out for police misconduct.

“My Take”—I would be thrilled if there were people, lawyers, I thought we could count on to be neutral observers so we wouldn‘t have to just take the protester‘s word or the police because there will be skirmished and there will be disputes.  But some of these protesters are there just hoping to provoke the police.  And I don‘t know that these observers are there to report that.

But let‘s ask Colin Starger, who will be one of those observers.  Mr.

Starger thanks very much for taking the time to come on the program. 

Appreciate it.  Am I wrong in my assessment?

COLIN STARGER, NATIONAL LAWYERS GUILD:  Well, I think you are wrong.  I mean we are definitely focused on police misconduct.  We‘re focused on the interactions between demonstrators and the police.  But we are going to objectively report what we see.  It‘s been our experience that most of the provocation comes from the police over the course of these demonstrations...

(CROSSTALK)

ABRAMS:  I‘m not suggesting that you‘re going to cook the books or lie.  I‘m not suggesting that.  What I‘m suggesting is that you‘re really there looking for police misconduct as opposed to the fact that many of these protesters have intentions—they put it out on their Web sites.  They are encouraging people to do things to provoke the police.  And wouldn‘t it be nice if we could count on you, lawyers, officers of the court, to say you know what, there are a lot of people out there who are just doing this just to get themselves into trouble and to cause trouble.

STARGER:  Well, You‘re also seeing a lot of reports out there about the police infiltrating activist organizations and there‘s a lot of hype about what the protesters want to do.  The problem is that the overwhelming majority of protesters have always been peaceful, and what—there‘s a very selective eye that‘s being used to try and distort the entire picture and really to create a climate where police misconduct would be acceptable.  We‘ve seen preemptive strikes that have happened, whether it‘s on activist spaces and when the charges eventually get prosecuted they almost inevitably fall through because frankly they‘re without merit.

ABRAMS:  I think that there‘s a lot of sympathy, though, Mr. Starger, for the people right now, particularly when you talk about the fact that there‘s real concerns about terrorism.  That people are a lot more concerned about possible terror attacks, and that is where the police should be, instead of having to baby sit a lot of protesters.  I mean no one is...

(CROSSTALK)

ABRAMS:  ... going to suggest that they shouldn‘t be there at all, but the numbers that they have to assign to what I will call baby sitting some of the protesters is astounding.

STARGER:  Well, I spoke to the lawyer who was involved in representing the folks from ACT UP that stripped down, as you mentioned at the top of the program, and he said the police let them stand there for about 20 minutes.  They were really enjoying the whole scene, and in fact they were in fact very calm.  So I agree with you that most of the police are extremely professional and in fact they enjoy it.  They enjoy people expressing their rights as much as anybody else, and you know the police work much better if the protests are allowed to proceed in an orderly fashion...

ABRAMS:  Right.

STARGER:  ... if the protesters aren‘t penned in.  So really what we‘re hoping our presence—one thing I should point out—the vast majority of legal observers, well not the vast majority but the single largest group of legal observers will be law students who are not yet...

ABRAMS:  Yes.

(CROSSTALK)

ABRAMS:  ... I‘ve got to tell you I‘m nervous.  Mr. Starger, I hope you tell your people to also look out for the troublemakers there and I hope to see that you report on both sides.  I‘ll follow up and check out what you guys do, but thanks very much for taking the time to come on the program.  Appreciate it.

STARGER:  Thank you.

ABRAMS:  Coming up, Scott Peterson‘s lawyers try to do some damage control at the end of another good week for the prosecution.  It‘s coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Scott Peterson‘s lawyer tries to poke holes in the prosecution‘s timeline and that timeline is crucial to the case against Peterson, but first the headlines.

(NEWS BREAK)

(BEGIN AUDIOTAPE)

SCOTT PETERSON, ON TRIAL FOR MURDER:  You deserve so much better. 

There is no question you deserve so much better.

AMBER FREY, SCOTT PETERSON‘S FORMER GIRLFRIEND:  Yes and I deserve to understand an explanation of why you told me you lost your wife and this was the first holidays that you would 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:  December 9, one of the crucial dates in the Scott Peterson case prosecutors say it‘s part of the countdown to the murder, the premeditation and in court it has become the issue.  Here‘s why.

Begins on December 6, 2002.  Shawn Sibley, Amber Frey‘s best friend who introduced the happy couple and confronts Scott after she finds out he‘s married.  He tearily begged her to let him break the news to Amber that he has—quote—“lost his wife”.  But the next day Peterson very busy at his computer, checking out the online classifieds for a boat it seems no one knew he was buying.

On December 8, Peterson again at his computer.  This time researching title currents in the San Francisco Bay where Laci‘s body was eventually found 90 miles from their home.  Finally December 9, he tells Amber what he says is the truth that he lost his wife.  But just yesterday during cross-examination Mark Geragos trying to poke holes into that timeline getting Detective Lydell Wahl (ph) who was in charge of investigating Peterson‘s computers to admit Peterson could have been surfing the net for a boat and fishing information on December 5, the day before Shawn Sibley confronts him.

“My Take”—this timeline is crucial.  And if it is what it seems, this is some of the most important evidence.  So what exactly were the holes punched by Mark Geragos?

Joining me now is our friend Edie Lambert, who has been inside the courtroom every day covering the trial for NBC affiliate KCRA.  So Edie, Geragos didn‘t really directly prove this, did he?  What did he show?

EDIE LAMBERT, KCRA CORRESPONDENT:  Basically here‘s the best way to think about it.  He found a record that Scott Peterson had pulled up; it was the USAFishing.com Web site.  On that Web site, and what you would have seen on your screen is December 5.  But what the record shows in the computer is that it wasn‘t actually pulled up until December 8, the time stamped is 8:19 in the morning.

Now the question is did Scott Peterson look at that sight on the fifth or did he look at it on the eighth and they just hadn‘t updated what was on the front of the page?  If you look at the page, it looks a little bit homespun.  It looks like something that certainly might not have been updated automatically.  So Mark Geragos is challenging this in a number of ways.

First of all, is the time stamp on that computer accurate?  Could Scott Peterson have download that had Web site from the fifth, book marked it and then pulled it up again on the eighth?  So these are the ways that he‘s chip, chip, chipping away at that timeline.

ABRAMS:  And that is crucial.  Let me bring in our legal team.  Edie is going to stick around—former New York State judge and NBC News analyst, Leslie Crocker Snyder and criminal defense attorney Mercedes Colwin.

All right, Leslie, this to me is, I keep saying this.  It seems like no one else is really talking about this.  This seems to be to me the crucial point.  If they say it‘s premeditated murder, this December 6 to December 9 becomes crucial.

CROCKER SNYDER:  Well Dan, I don‘t exactly agree with you...

ABRAMS:  Why?

CROCKER SNYDER:  ... and I‘ll tell you why.  Why is it so crucial that he might have pulled up, let‘s say—let‘s assume, although it‘s certainly not proven or not shown by Geragos yet that he pulled this up on December 5.  He‘s already met Amber.  He‘s already thinking about losing his wife.  I mean who says that he only started thinking about it after he‘s confronted by Shawn Sibley?

ABRAMS:  Well, look...

CROCKER SNYDER:  Why is it...

ABRAMS:  ... whether he started thinking about it before then or not, the point is that you would agree with me that the premeditation aspect of this in the days leading up to December 9 are crucial, correct?

CROCKER SNYDER:  Yes, the days are crucial.  But I don‘t think it makes any difference whether he started looking for the fishing information, the boat information on December 4, 5, 6, 7, 8, or 9...

ABRAMS:  I don‘t know...

CROCKER SNYDER:  ... to me that‘s not critical.

(CROSSTALK)

CROCKER SNYDER:  What‘s critical is...

ABRAMS:  I‘m sorry.

CROCKER SNYDER:  That‘s my view.

ABRAMS:  All right.  Mercedes, I think it does matter.  I think that - I think if they can show that there was this December 6, 7, 8, 9 pattern finds out that he‘s about to be confronted, starts looking for boats, goes to the San Francisco Bay to look at the title currents on the Internet and then on the ninth tells Amber he lost his wife, boy that in and of itself to me seems to be a pretty good stairway to premeditation.

MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY:  I think it does Dan.  But this is how I would approach it from the defense aspect.  If they are going to lump this whole thing that Amber is the inspiration to the premeditation leading up to this murder, I think that‘s where they are going to fail miserably.  Because we‘ve gone to—for the prosecutors to show premeditation, they have to establish that this is a very short timeline, two weeks that he‘s been with Amber and suddenly he hatches this idea to kill his wife.  I think that‘s going to be the biggest problem and the hugest way to attack it.  I do think that the timeline is critical.  One way to attack it is just show Amber is really insignificant in all this...

ABRAMS:  Yes, see...

(CROSSTALK)

ABRAMS:  ... I‘ve got to tell you, I agree with that Leslie and here‘s the problem.  I think that they are going to have a tough time showing that Amber in and of herself was the motive.  I think they have a much stronger...

UNIDENTIFIED FEMALE:  Well I agree with that totally.

ABRAMS:  They have a much stronger argument to say you know what, he finds out that he‘s about to be busted for being married and he says to himself, you know what, I‘ve had enough of this being married stuff and it‘s time for me to move on—quote—“so to speak.”

UNIDENTIFIED FEMALE:  Dan...

ABRAMS:  Hang on.  Leslie...

CROCKER SNYDER:  ... we don‘t disagree with that.  We don‘t—I don‘t disagree with you at all.  I think it‘s not Amber, per se.  It‘s his freedom.

ABRAMS:  Right.  Right.

CROCKER SNYDER:  It‘s his desire to have Amber and many other Ambers and not be encumbered by a wife and a kid.  But I think the whole point is he‘s already starting to think about this after he meets Amber, so I don‘t think it‘s as critical.  I think it‘s much stronger the way you say it is, absolutely, but I don‘t think it‘s critical to showing premeditation...

ABRAMS:  Mercedes, I‘m sorry...

CROCKER SNYDER:  ... if he pulled something up on December 5.

ABRAMS:  Go ahead.

COLWIN:  You know if I were the prosecutor in this case, I would have looked back at his behavior during that seminar that they keep talking about, where he was saying that he wants to be the horny bee walking around trolling for women.  I mean that‘s really where they would focus in on, not this whole Amber and resting all their eggs in that basket.

ABRAMS:  That‘s a good point.  And Edie, they haven‘t really done - I mean they haven‘t really been focusing on this convention when he met Shawn Sibley, the friend, a whole lot to say maybe that was the point where he said to himself, you know what?  It‘s time for me to be free.

LAMBERT:  We heard some different things about that convention as well.  You might remember that he was on one hand, the horny bee, also telling Shawn Sibley that he was looking for his soul mate, so kind of some conflicting information there.  What we‘ve heard about that convention, to answer your question, is basically from Shawn Sibley who was there and the two other coworkers who introduced Scott Peterson to Shawn Sibley.  So those three witnesses and that‘s it.

ABRAMS:  The horny bee.

CROCKER SNYDER:  Well Dan...

ABRAMS:  I‘ve got to...

CROCKER SNYDER:  Dan, again...

ABRAMS:  Very quickly, yes...

CROCKER SNYDER:  OK.  No, I just think Amber is the catalyst to his whole situation and that‘s why the timeline is very important, but it‘s not as critical...

ABRAMS:  They have got to be able to translate...

(CROSSTALK)

ABRAMS:  ... that to this jury, and I‘m not sure they are going to be able to, but we shall see.

COLWIN:  I can‘t agree with you more, Dan...

CROCKER SNYDER:  Well, I agree...

ABRAMS:  And I know Leslie agrees on that one...

CROCKER SNYDER:  ... I agree with that.

ABRAMS:  Yes.  Yes.

CROCKER SNYDER:  Yes.

ABRAMS:  All right.  Edie Lambert, Leslie Crocker Snyder, Mercedes Colwin, thanks a lot.

COLWIN:  Thank you.

ABRAMS:  A reminder, we‘ve got a special edition of the program.  Tomorrow night you can ask all of the things that you‘ve been wanting to know about the Scott Peterson case and the Kobe Bryant trial.  So we‘re going to be taking your e-mails for the hour (UNINTELLIGIBLE).  Tune in tomorrow night 8:00 Eastern.

Coming up, if you believe the odds makers, Mark Geragos might be doing such—might not be doing such a good job after all.  After all, we‘ve got the latest odds.  That‘s right.  People are actually betting on the outcome of high-profile trials and our next guest is going to tell us the odds.

(COMMERCIAL BREAK)

ABRAMS:  Do you think Scott Peterson‘s guilty of murdering his pregnant wife, Laci?  Want to bet on it?  Well, now it seems you can.  Internet gambling mostly reserved for sports, casinos, sometimes major world events, but a new trend is catching on.  People are actually betting on the outcome of high-profile trials.

If you log on to bet on—on to Sports.com, you‘ll find odds that favor a guilty verdict in the Scott Peterson case.  The numbers say 1-4 Peterson will be convicted of murder.  That means you bet $100 on a guilty verdict and you win—you‘ll make just 25 bucks.  You stand to make a lot more money if you think he‘ll be found not guilty.  If you win on that bet where the odds are 5-2, you get a return of $250 on your $100 bet.

But if you think they‘ll be a mistrial, if you‘re right, with the odds 8-1, you could make $800.  That includes a hung jury on $100 bet.  They are taking bets on all the high-profile cases and we‘ll go over the odds for those cases as well.

Joining me now is David Carruthers, CEO of BETonSPORTS.com, a Costa Rican online gambling site and he joins us from San Jose, Costa Rica.  Thank you very much for coming on the program.  Appreciate it.

DAVID CARRUTHERS, CEO, BETONSPORTS.COM:  My pleasure.

ABRAMS:  So let me ask you about how you come up with these odds.  I mean you know a lot of the people are watching the Peterson trial, for example, are saying things are not going so well for the prosecution, and yet you‘ve got your odds there favoring a conviction.  How do you make the odds?

CARRUTHERS:  Well, it‘s really very simple.  You do a combination of things.  First of all, you do your own research.  You follow the news, the press, and you form an opinion.  That initial opinion gives you the first odds out in the marketplace.  And after that you follow the money.  And the money comes from the people that are watching the trial on TV, reading the Internet or the newspaper.  So as bookmakers, we just try to make sure that we take money on every site and end up winning no matter what the outcome of the trial is.

ABRAMS:  And have you been getting a lot of bets on the Peterson case?

CARRUTHERS:  It‘s becoming increasingly popular.  This event rightly or wrongly has captured the public‘s imagination.  It‘s a love story.  It‘s a tragedy.  It‘s a potential murder.  So all the intrigue is there for that.  And as the trial takes a twist and turn then people, you know, take a twist and turn on their view.  Betting is all about having a view and an opinion.  And people have opinion on current events, on trials, on the outcomes of elections and the outcome of sporting events just the same.

ABRAMS:  Give me a sense of how many bets do you get on trials in general?

CARRUTHERS:  Well, we took 80 bets just today, 80 wagers just today on the Simpson trial.

ABRAMS:  On the Simpson trial?

CARRUTHERS:  Yes.

ABRAMS:  You mean the Scott Peterson trial?

CARRUTHERS:  Sorry, the Scott...

ABRAMS:  Yes.

CARRUTHERS:  ... beg your pardon, the Scott Peterson trial.

ABRAMS:  Maybe that‘s why the odds are a little off.  We get the trials confused.  I‘m just kidding.

All right.  So the Kobe Bryant case, the odds 7-2 that he‘ll be convicted of sexual assault.  If you bet $100 you can win 350.  Basically you‘re saying there you don‘t think it‘s likely that he‘ll be convicted, correct?

CARRUTHERS:  That‘s what the odds are saying and that‘s what the people are thinking as well.  You know, Kobe Bryant is a huge star and he has a following.  And maybe it‘s just his following that says you know stars don‘t get convicted.  You know, one very famous case, (UNINTELLIGIBLE) Simpson, O.J. Simpson...

ABRAMS:  Yes.

CARRUTHERS:  ... didn‘t get convicted.  He was a huge star.  Maybe there‘s a parallel there in public opinion.  I‘m not sure.  I just ask the question.

ABRAMS:  Michael Jackson, you say guilty on one count 5-8.  So if you bet $100, you win $62.50 if he‘s guilty on just one of the counts.  Does he have to be found guilty of just one count there or at least one count?

CARRUTHERS:  At least one count.  Not just one count.  At least one count.

ABRAMS:  So again, it seems that the betting there is that he will not be convicted, correct?

CARRUTHERS:  That‘s what the public opinion are telling us in terms of where they are placing their money.

ABRAMS:  And my favorite one...

(CROSSTALK)

ABRAMS:  ... the odds that Michael Jackson will flee before the 31st of December 2004, 5-1.  If you bet $100, you win...

(CROSSTALK)

ABRAMS:  ... that means if he flees and you made this bet you win the 500?

CARRUTHERS:  Exactly.  Exactly.  You know you‘ll see it better on Sports.com.  Some of the propositions are a little bit on the edge whether it be that Martians may land in your backyard or whether it be that Michael Jackson will run away from his trial.

ABRAMS:  Yes.

CARRUTHERS:  Sometimes we do have our tongue firmly in our cheek...

ABRAMS:  Now...

CARRUTHERS:  Remember, this is entertainment for us.

ABRAMS:  Well yes, it‘s still money and that was the final question I had for you.  I mean you are based in Costa Rica...

CARRUTHERS:  Sure.

ABRAMS:  ... and...

CARRUTHERS:  Yes.

ABRAMS:  ... that is that the Department of Justice here even believes, and this is—there‘s a big debate going on right now as to much of the legality.  But as you know, the Department of Justice here position is that it‘s illegal to even bet on your Web site, correct?

CARRUTHERS:  That‘s some people‘s position.  I take a different view.  I think that you‘re making a transaction on the Internet, then that—where that transaction lands on the server is where you‘re making the bet.  It‘s one of the reasons that Bet on Sports is in Costa Rica.  Bet on Sports is a publicly listed company in the United Kingdom and we are licensed and legal.  In every country we have operations...

(CROSSTALK)

CARRUTHERS:  ... four countries across the globe.

ABRAMS:  Are you going to pay for the legal defenses of the people who do place the bets if they get charged?

CARRUTHERS:  Well, I‘ve yet to find anyone that‘s been charged yet for placing a bet on the Internet.  And our company serviced our customers very well last year.  We took 33 million wagers from North American customers alone.  I suggest that there is suddenly a pent-up demand for our services and we think we give a good service, and our customers are very loyal and we‘re happy to do that.

ABRAMS:  David Carruthers from BETonSPORTS.com.  You guys should watch my show more often.  I think you‘d be better able to better gauge the odds on some of these cases.  Thanks very much for taking the time.  Appreciate it.

CARRUTHERS:  It‘s a pleasure.

ABRAMS:  Coming up, more outrage over this campaign ad attacking John Kerry‘s military service from both sides...

(COMMERCIAL BREAK)

ABRAMS:  Coming up, first there was stem cell research, now it‘s gay marriage.  Why I think personal circumstance shouldn‘t determine politicians, government officials like the vice president to take on controversial issues.  It‘s my “Closing Argument” coming up.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—the I have no sympathy until it happens to me syndrome.  The symptoms include an inability to appreciate the predicament of others unless and until it happen to you.  It hit me as I watched Vice President Cheney this week saying that he is opposed to the constitutional amendment that would ban same sex marriages.  An amendment supported by the Bush administration.  He began his answer by saying that he has a gay daughter and so this as an issue his family is—quote—

“very familiar with.”  It seemed as if he was saying well you know this might not be my position but for my lesbian daughter.  But legislators or high-level government officials should not be asking how does it affect me, but how it will affect them, the country?  In this case, gays and/or society as a whole.

It‘s either the right decision for all of us or not regardless of the sexual orientation of those in the Cheney household.  We want to trust they‘re making the best decision for us, not them.  Seen a similar sentiment from politicians when it comes to stem cell research.  Some who would clearly have been against it because the cell comes from human embryos supporting it because the research can help loved ones.  What about the military?  I would hope that all legislators would be able to make the difficult choices about our military even if they‘re not a parent or spouse of someone who will be risking his or her life for the country.  A government official shouldn‘t need to have someone in the Marines to recognize the risks.

And there‘s drug laws.  Nationwide, many small time drug dealers, even their accomplices serving long prison sentences for comparatively minor crimes.  Legislators love to appear tough on crime until that is their son or daughter gets busted at college selling a little cocaine.  We‘re all shaped by our own experiences, but I would hope that when you‘re empowered to make decisions for all of us, you wouldn‘t need to have a gay daughter, a dying relative, a husband in the Marines or a son arrested for dealing drugs to make the best decisions for everyone.

I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  Last night on the program, Ben Ginsberg, former chief outside council to the Bush campaign was on.  He resigned after he disclosed that he had advised one of those 527 groups, the Swift Boat Veterans for Truth.  I said Ginsberg didn‘t have to resign.  There are Democratic lawyers doing the same thing, representing outside groups, but I also said I didn‘t know why the president wouldn‘t just condemn the ad since he seems to concede it was misleading.

Plenty of e-mails from both sides of the aisle on this issue.  From Philadelphia, Mickey Hertz responds to Ginsberg‘s question about why there was not outrage at Michael Moore‘s film.  “He asked you where the outrage was over Michael Moore‘s movie “Fahrenheit 9/11”.  “Fahrenheit 9/11” is a movie, which has won many awards clearly made and distributed by movie businessmen looking to entertain us and make money.  It‘s not part of a political election campaign group such as this 527 Swift Boat Veterans.  That‘s where the outrage is.”

And Margaret Lowney-Rock from Bremerton, Washington.  “The problem with the Swift Boat ads is the misrepresentations in the ads.  You didn‘t address this.”

Finally, we reported that President Bush hopes to join Senator John McCain to put an end to all these political ads put out by 527 groups.  I said as a legal matter, ads from outside groups would be nearly impossible to ban because of the First Amendment.

Carol Guarnero writes, “What I heard you say tonight is that these lawsuits cannot be won because they violate freedom of speech.  In another breath you stated that the president should denounce just the Swift Boat ads and not the slanderous ads, motion pictures and utter disrespect for the office of the presidency.  Am I not to expect that my president would be in favor of freedom of speech?  In addition, what part of I am against this ad and all other 527 ads do you not understand?”

Carol, the issue is not the ads in general.  So mothers against drunk driving shouldn‘t be able to put out political ads?  It would be a First Amendment violation to ban all these ads, period.  It‘s about this ad.  At this point, the president can‘t just lump it in with the rest of them.  It‘s the substance of the ad, not the broader issue of these ads in general.  I think that obfuscates the issue and I think almost all lawyers who know their Constitution are in agreement that it would be impossible to ban all advertisements from all nonprofit groups around election time.  But we‘ll see.

A reminder, our special Saturday program tomorrow night, 8:00 p.m.  Your chance to ask our legal team, which will include a criminal psychologist, a forensic expert, lawyers, everything you want to know about the Kobe Bryant and Scott Peterson cases.  You know those questions that you just never can seem to get answered?

E-mail us abramsreport@msnbc.com.  Please, please, please include name and where you‘re writing from.  And you can vote on our Web site about whether prosecutors are making the right decision moving forward with the Bryant case.

Thanks for watching.  See you tomorrow.

END   

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