updated 9/10/2004 12:23:44 PM ET 2004-09-10T16:23:44

Guests:  Geoffrey Fieger, Rikki Klieman, Dean Johnson, Mickey Sherman, M.J.

Sean Kimerling; Health>

(BEGIN VIDEOTAPE)

DAN ABRAMS, HOST (voice-over):  Coming up, Scott Peterson‘s father takes the stand in his son‘s murder trial.  Peterson spoke to his dad the day Laci was reported missing.  What he did and didn‘t say could come back to haunt him. 

Plus, Kobe Bryant‘s attorneys convince a court to seal records from his criminal case.  But the charges against him were dropped, so can they do that? 

And bin Laden‘s top deputy surfaces on a videotape saying the U.S. is on the brink of defeat in Iraq and Afghanistan.  It‘s the first we have heard from him in months. 

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket, Scott Peterson‘s father called to the witness stand by the prosecution.  He spoke to Scott at the time prosecutors believe that Scott was returning after dumping Laci‘s body in the bay. 

Get the latest now from MSNBC‘s Jennifer London outside the courthouse.  So Jennifer, Lee Peterson is called as a hostile witness by the prosecution to say what? 

JENNIFER LONDON, MSNBC CORRESPONDENT:  Dan, the first thing Lee Peterson said when he took the stand, I‘m proud to say Scott is my son.  Lee Peterson then went on to say that he and Scott didn‘t talk much about fishing.  In fact when they spoke on Christmas Eve 2002 later in the afternoon Lee Peterson said Scott never told him that he was fishing that morning at the Berkeley marina.  Prosecutor Rick Distaso asking Lee Peterson during that phone call did your son ever tell you he had been fishing at the Berkeley marina that day.  Lee Peterson said no.

Rick Distaso:  Did he ever tell you he bought a fishing boat?

Lee Peterson:  No.

Distaso:  He didn‘t tell you he had just taken the boat out in the marina, nothing like that?

Lee Peterson said no he didn‘t. 

Lee Peterson did go on to say that it really wasn‘t usually for Scott to make large purchases and not tell the family about it.  He bought a truck unannounced.  He bought at least one motorcycle.  Now Lee Peterson was the last witness called today. 

The very first witness called to the stand an investigator with the Stanislaus County D.A.‘s Office.  He testified under cross-examination that if Scott Peterson wanted to go saltwater fishing he really had no choice but to drive to the San Francisco Bay.  The marina—the reservoirs and the lakes near his home in Modesto were all fresh water. 

Dan, the defense is trying to show that it really wasn‘t that strange that Scott Peterson would drive almost 90 miles from his home in Modesto to go fishing at the San Francisco Bay because he wanted to fish in the saltwater. 

ABRAMS:  Jennifer London, thanks very much. 

Not that strange to go saltwater fishing 90 miles away from your home on Christmas Eve when your eight-month pregnant wife is home.  “My Take”—no question this is more bizarre behavior from Scott Peterson, again, not in and of itself any kind of bombshell but why wouldn‘t he have mentioned that he just took his new boat out for a spin to his father? 

Let‘s bring in our legal team - famed criminal defense attorneys Rikki Klieman and Geoffrey Fieger and in the courtroom today former San Mateo County prosecutor Dean Johnson.

All right, Geoffrey, you know it just seems to me, again, this case, does—this case very much Geoffrey come down to common sense?  That in a way you want the jurors to say you are talking to dad on the phone on 2:15 with your new boat and you don‘t mention that you had just gone fishing or that you had a new boat? 

GEOFFREY FIEGER, CRIMINAL DEFENSE ATTORNEY:  Let me just say this Danny and that‘s absolutely right.  I was thinking today—what would happen if I said I went fishing on Christmas Eve 90 miles from my home and my wife‘s pregnant body popped up there four months later and had disappeared on that very same day?  I mean that alone would get me convicted. 

Now, to answer your question, obviously he‘s called to the stand, one, because, remember, in the conversations with Amber Frey he claimed to have told Amber that his parents were walking in and he was telling Amber—he was telling his parents about Amber.  So they asked his dad about Amber also, that he lied to his dad about that...

ABRAMS:  Yes.

FIEGER:  ... which is very, very, very important that he lied about telling his parents about Amber.  Two, that he didn‘t tell his dad about a boat that he had just bought and that he was gone fishing 90 miles away.  When you lie to your parents—and remember he had lied to his mother about where he was...

ABRAMS:  Yes.

FIEGER:  ... the Berkeley marina, that is—believe me, that adds up. 

ABRAMS:  Yes.  You know they‘re going to say this wasn‘t a lie.  All right, here‘s the prosecutor, Rick Distaso, says to Lee Peterson did you know prior to December 24, 2002 your son had even purchased a boat? 

Lee Peterson:  No, but that wouldn‘t be unusual.

FIEGER:  Yes.

ABRAMS:  Laci never discussed the boat with you either?

Lee Peterson:  No.

Rikki Klieman, big deal? 

RIKKI KLIEMAN, CRIMINAL DEFENSE ATTORNEY:  Well I‘m really surprised that Geoffrey Fieger and I are going to disagree on this point, because I really thought we‘d be on the same side on this one, but this is my take.  I think that the prosecution did a great job in destroying Scott‘s character with the Amber Frey tapes and with the tapes to family.  And we know that he is a pathological liar, a sociopathic liar. 

However, calling his father to the stand is to say look, we think he is a really bad guy because of Amber Frey.  Now we might think he‘s a really good guy if we like the father on the stand.  Why they would call the father on the stand it was a sympathetic figure in the midst of their case is a mystery to me and I don‘t think it was worth the points which I think Geoffrey speaks to well. 

And let me tell you this, one other fact.  I mean when I got my first brand new special red little sports car and took it out it‘s not like I called my mother that day...

ABRAMS:  Wait.  But Rikki let‘s assume for a minute...

KLIEMAN:  ... and said let me tell you about my new sports car.

ABRAMS:  ... wait.  Let‘s assume you are now driving your new sports car and you are on your cell phone and you‘d just taken it out for the first ride.  You don‘t even mention to mom when you‘re on the phone hey mom, here is what I‘m doing...

KLIEMAN:  I don‘t know...

ABRAMS:  ... I‘m in that new sports car...

KLIEMAN:  ... if I would or if I wouldn‘t Dan...

(CROSSTALK)

FIEGER:  Hey Rikki...

ABRAMS:  I‘ve got to bring in Dean Johnson...

FIEGER:  Rikki, you know...

ABRAMS:  Hang on a sec...

FIEGER:  Let me just say this...

(CROSSTALK)

FIEGER:  You are right, Rikki, but the father is not that as sympathetic a guy. 

ABRAMS:  All right, here‘s Lee Peterson today after testifying. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Lee, are you pleased you‘ve got that behind you? 

LEE PETERSON, SCOTT PETERSON‘S FATHER:  I can‘t talk.  I‘m sorry. 

UNIDENTIFIED MALE:  Well, you did have a chance to at least humanize Scott on the stand today (UNINTELLIGIBLE).

L. PETERSON:  Well, Scott is very...

(END VIDEO CLIP)

ABRAMS:  All right.  Dean Johnson was inside the courtroom.  So Dean, was it worth calling him? 

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  You know Dan, Rikki is absolutely right.  Calling Lee Peterson at this juncture in the case was one of the dumbest things the prosecution has ever done.  Lee Peterson came across and believe me, Lee Peterson is a guy who can be irascible at times.  He came across as a guy who was sad that his son was being prosecuted for a double murder.  He came across very human to this jury. 

And if you humanize the father it becomes much more difficult for the jury to convict the son.  As far as any substantive points that the prosecution tried to make, for example, yes, it may be bizarre that Scott Peterson doesn‘t happen to mention to Lee Peterson that he has gone fishing on Christmas Day, but if they are trying to make the point that Scott is trying to hide his whereabouts, is trying to you know hide the fact that he‘s gone fishing or he‘s been in the bay, they can‘t make that point because Scott Peterson already said on tape in a voice message that was purportedly for Laci, honey I‘m on the way back from the marina, so he‘s not trying to hide this from anybody...

UNIDENTIFIED MALE:  What? 

JOHNSON:  The prosecution did not make any points on this...

FIEGER:  That‘s wrong. 

JOHNSON:  No, that‘s right. 

FIEGER:  Leaving a message to Laci, his now dead wife wouldn‘t mean anything. 

JOHNSON:  You‘re telling me that saying on a tape that he was leaving from the marina is not going to mean anything?  You just told us that it was significant that he‘s trying it hide the fact that he has been to the marina.

FIEGER:  Not to Laci. 

JOHNSON:  Not to...

FIEGER:  That‘s...

JOHNSON:  Not to mention...

FIEGER:  ... that he‘s trying to create an alibi.

JOHNSON:  ... Geoffrey, not to mention the fact that it was Scott Peterson who took the ticket that he used to get into the marina and turned it over to the police...

(CROSSTALK)

ABRAMS:  I‘ve got to tell you, that‘s always to me been—a lot of our viewers ask about that and that to me is a non-issue.  The bottom line is Scott Peterson knew that people had seen him in that area.  I think that he didn‘t want to...

(CROSSTALK)

ABRAMS:  ... I mean whether he did it or didn‘t do it, I don‘t think that he was going to deny he was there because that would have been the end of the case for him.  Let me—Rick Distaso—more of the questioning of Lee Peterson.

Prior to December 2002, when was the last time you and your son had gone fishing together? 

Prior to December 2002, I think we‘d gone the summer of 2002, probably July or August.

How many times did you go fishing with your son in 2002?

Just one time.  I‘m not really a fisherman.  Scott‘s the fisherman.

What type of fishing?

It was trout fishing in the Sierras...

Very quickly, Dean, what was the significance of that? 

JOHNSON:  Well, they‘re—the prosecution is trying to—has been trying to show that Scott Peterson really wasn‘t all that interested in fishing so they are going to say it is bizarre behavior that he goes out fishing on Christmas Eve.  Lee Peterson testified that Scott Peterson essentially had been fishing since he was 6 years old...

ABRAMS:  Yes.

JOHNSON:  ... that in fact...

FIEGER:  No, but he doesn‘t fish...

JOHNSON:  ... wait, wait, wait...

FIEGER:  He doesn‘t fish in boats in the middle of a rough bay. 

ABRAMS:  Take a quick break...

JOHNSON:  Yes.

ABRAMS:  I‘ll give Dean a minute...

(CROSSTALK)

ABRAMS:  ... Dean a minute to ponder that one.  Rikki Klieman, Dean Johnson and Geoffrey Fieger, stick around.

Coming up, more from day 52 of the Scott Peterson trial. 

Plus Osama bin Laden‘s number two man shows up in a new videotape claiming that U.S. forces in Afghanistan and Iraq are on the run. 

And this American soldier could be charged with murder for killing a wounded Iraqi militant at close range.  His fellow soldiers said he did it out of pity because the man was dying.  Is that murder? 

Your e-mails, send them to abramsreport@msnbc.com.  Please, please include your name and where you‘re writing from.  I respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Were there spots closer to Scott Peterson‘s home that he could have gone fishing that day?  That was the subject of the testimony in court.  It‘s coming up. 

(COMMERCIAL BREAK)

(BEGIN AUDIOTAPE)

SCOTT PETERSON, ON TRIAL FOR MURDER:  Hey beautiful.  I just left you a message at home.  It‘s 2:15.  I‘m leaving Berkeley.  I won‘t be able to get to Vella Farms to get the basket for papa.  I was hoping you would get this message and go on out there.  I‘ll see you in a bit sweetie.  Love you, bye.

(END AUDIOTAPE)

ABRAMS:  That was the final message that Scott Peterson left on Laci‘s cell phone answering machine.  Of course the question is did he already know that she was dead. 

All right, we‘re talking about Lee Peterson, the father of Scott Peterson on the witness stand today, talking about an important point and that is you know why would Scott Peterson have not discussed with his father where he was.  And he was, of course, at the Berkeley marina, right near where the bodies were later found. 

One of the key issues in the case, could Scott Peterson have gone fishing closer to his home.  Here is the map of what the prosecutors laid out about all the other places he could have gone fishing.  They were less than 90 miles away from Modesto as the Berkeley marina was.

Mossdale Crossing, 26.4 miles.  Woodward, 23.7.  Fox Grove, 9.8.  Turlock Lake, 23.7.  The Modesto River, 19.2.  Yosemite Lake, 58.  Lake McClure, blah, blah, blah, you get the point.

There they are—all these different places that he could have gone fishing but didn‘t.  But on cross examination the attorney for Scott Peterson asked the detective if you want to go saltwater fishing the Berkeley marina and bay would be the closest.  Bertalotto (ph) said yes, probably. 

I don‘t know.  Either Geoffrey or Dean...

(CROSSTALK)

ABRAMS:  Rikki...

FIEGER:  You don‘t go saltwater fishing, Dan, in that boat.  Look at that boat.  That boat is a lake boat.  I don‘t know anything about fishing but the last place on earth—I know a lot about San Francisco Bay—the last place on earth I‘d want to be is San Francisco Bay hunting for big fish on Christmas Eve.  That‘s ridiculous...

(CROSSTALK)

ABRAMS:  Rikki...

(CROSSTALK)

ABRAMS:  I‘ve got to let Rikki in...

KLIEMAN:  It‘s not ridiculous...

ABRAMS:  Rikki, go ahead.

KLIEMAN:  It‘s not ridiculous Geoffrey.  It‘s not because I am sure that you are going to hear from witnesses for the defense who will say if he wanted to try out that boat in saltwater that it was the closest place to go try it out...

UNIDENTIFIED MALE:  They did Rikki...

KLIEMAN:  And—wait a minute.  Wait a minute.

(CROSSTALK)

KLIEMAN:  And it‘s Christmas Eve, they have plans for Christmas Eve night.  It is not like they had to have plans for Christmas...

FIEGER:  It‘s 90 miles.  That‘s 180 miles.  That‘s ridiculous...

(CROSSTALK)

FIEGER:  Who drives 180 miles...

(CROSSTALK)

KLIEMAN:  ... if you live in California...

JOHNSON:  You don‘t even...

KLIEMAN:  ... it‘s a different scale of where you drive...

FIEGER:  No, no, Michigan is big state, too, a real big state.  We‘ve got more coastline than California.  Nobody...

JOHNSON:  Geoffrey...

FIEGER:  ... drives 180 miles...

(CROSSTALK)

FIEGER:  ... in Michigan for... 

(CROSSTALK)

ABRAMS:  All right...

(CROSSTALK)

ABRAMS:  All right...

(CROSSTALK)

JOHNSON:  Geoffrey, I don‘t know what they do in Michigan but you are wrong.  You don‘t have to wait for the defense expert.  The prosecution‘s own fishing expert who is one of the leading experts on fishing in San Francisco Bay has already testified he regularly goes fishing for sturgeon...

(CROSSTALK)

JOHNSON:  ... in San Francisco Bay in a smaller boat than Scott‘s. 

FIEGER:  Big deal. 

ABRAMS:  All right, Dean, let me ask you this...

(CROSSTALK)

ABRAMS:  Dean...

JOHNSON:  ... you‘re the one...

ABRAMS:  ... hang on Dean...

JOHNSON:  ... who brought it up...

ABRAMS:  ... let me switch gears.  Dean, let me switch gears for a minute, all right and ask you about one of the questions on cross-examination that came up about Ron Grantski.  That‘s Laci Peterson‘s stepfather.  He also went fishing the morning of December 24...

(CROSSTALK)

ABRAMS:  ... but he went to one of the local places, one of the closer places.  Again...

JOHNSON:  Right.

ABRAMS:  ... the defense it seems bringing up the question well did you know that Ron Grantski was fishing on December 24.  Are they trying to suggest that maybe Laci‘s stepfather was somehow involved or are they trying to just say well people go fishing on Christmas Eve?

UNIDENTIFIED MALE:  Right.

JOHNSON:  Oh, I don‘t think that was the implication.  Ron Grantski testified that he thought it was bizarre that Scott Peterson had gone fishing in San Francisco Bay or taken off to fish at 9:30 and the point that was made was, well, Grantski himself took off fishing around 9:30 or 10:00 and got back later in the day.  So, that was the whole point there.

ABRAMS:  All right...

(CROSSTALK)

ABRAMS:  ... let me go to number...

(CROSSTALK)

ABRAMS:  ... what are you...

(CROSSTALK)

ABRAMS:  Go ahead Geoffrey...

FIEGER:  It‘s one thing to go...

(CROSSTALK)

FIEGER:  It‘s one thing if you try out your new boat in a lake near you.  It‘s another thing to go 180 -- it‘s not just 90.  It is 180 miles to spend an hour out in the bay looking for sturgeon?  I mean believe me this is common sense...

(CROSSTALK)

FIEGER:  If you‘ve got common sense on the jury you go...

(CROSSTALK)

FIEGER:  ... and his wife washes up there.

ABRAMS:  All right.  Rikki, I want you to listen to this...

KLIEMAN:  I am listening Dan.

ABRAMS:  All right.

KLIEMAN:  I am intently listening.

ABRAMS:  Yes.  I‘m going to read to you the cross examination by Pat Harris, one of the defense attorneys, Lee Peterson, again, this is their witness effectively trying to show that you know what, it wasn‘t a big deal that Scott Peterson hadn‘t told his father about his new boat. 

When they pulled up in the driveway, you noticed something new?

Yes, I did.

A new pickup truck?  This is a while back.

Lee Peterson:  Yes. 

Turned out Scott had had the boat for several months. 

I believe so, yes.

He didn‘t talk about his purchase, didn‘t ask you about it? 

No, that‘s not Scott. 

Pickup truck is more costly than a boat?

Lee Peterson said I would think so, yes.

Very quickly, Dean, context and then I‘m going to Rikki on it.  What was the context of that?

JOHNSON:  Well, what the prosecution is trying to say here is that it‘s suspicious that Scott was apparently hiding the boat.  He didn‘t even tell his father about the boat...

ABRAMS:  But what is the...

JOHNSON:  Yes, this is—we‘re on cross here and the cross examination is, look, he bought a truck, a boat, two motorcycles.  Never told you about that and you never knew about it until you came up in his driveway and you saw them so the point is, I guess, that Scott never told his father about the big toys...

ABRAMS:  Rikki, bottom line, you think that this was a big mistake for the prosecutors to be calling Lee Peterson at all?

KLIEMAN:  I think it‘s a huge mistake.  I think that if there are any jurors who simply liked Lee Peterson or felt sorry for Lee Peterson at this point in time in the case it was a big mistake.  And this whole idea that he was supposed to confess to his father every time he purchased something is preposterous. 

FIEGER:  No, no, he‘s supposed to tell his father where he was...

ABRAMS:  I‘ve got to wrap...

FIEGER:  ... on Christmas Eve.  That‘s natural...

ABRAMS:  ... got to wrap it up.

FIEGER:  ... people. 

ABRAMS:  Rikki Klieman, Geoffrey Fieger and Dean Johnson, as always, thanks.

JOHNSON:  Thanks.

ABRAMS:  Coming up, a judge grants Kobe Bryant‘s attorneys‘ request to seal documents from his sexual assault case a week after the case is dismissed.  They say it is to protect Bryant‘s privacy but you know they didn‘t seem to care a whole lot about the other side‘s privacy.  And since the case was dismissed, who allows them to keep it sealed?  What are they sealing if there‘s no case? 

Later, a personal story, 37-year-old Emmy Award winning sportscaster who died of cancer a year ago today and what you can do to help prevent another young guy like Sean Kimerling from dying so young. 

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  The criminal case against Kobe Bryant is not going to happen.  But now it seems the defense wants to make sure that no one ever finds out what evidence would have been presented.  Today a judge granted a defense motion to at least temporarily seal the arrest and criminal records in the case including recordings and transcripts of Bryant‘s interview with sheriff‘s investigators the night after the alleged attack. 

Bryant‘s team argued—quote—“Mr. Bryant retained his constitutional presumption of innocence and his fundamental constitutional right to privacy under the state and federal constitutions.  In contrast to these weighty interests and rights the public and media has no legitimate interest in the records of this matter.  This case is over.  Mr. Bryant is innocent.  He should be permitted to move on with his life.”

“My Take”—what is the presumption of innocence matter when he is not facing a criminal trial?  That‘s the only time the presumption of innocence applies.  It‘s a legal fiction designed for criminal cases.  And I don‘t understand how a judge has jurisdiction to keep documents sealed in a non-existent case.  This is a defense team that went public with intimate details about the accuser‘s past and numerous court filings.

They said in public documents that she had a history of—quote—

“purported suicide attempts.”  That she was known for—quote—

“attention seeking behavior”.  That she—quote—“received treatment with an anti-psychotic drug” and now the defense suddenly wants everything sealed. 

Joining me now criminal defense attorney Mickey Sherman.  Mickey, I don‘t get it.

MICKEY SHERMAN, CRIMINAL DEFENSE ATTORNEY:  You know Dan this is a no-brainer.  I‘ve got to tell you, this is probably the easiest decision this judge ever had to make.  The guy was essentially found not guilty and in most states when you‘re found not guilty...

(CROSSTALK)

SHERMAN:  ... is dismissed. 

(CROSSTALK)

ABRAMS:  ... found not guilty?

SHERMAN:  The same thing, the case is dismissed...

ABRAMS:  Right.

SHERMAN:  ... it‘s the same as not guilty. 

ABRAMS:  So...

SHERMAN:  And that doesn‘t mean that the public is then allowed to see in his underwear drawer.

ABRAMS:  Whoa, whoa, whoa.  It‘s not to see in his underwear drawer.  It‘s to see what are typically public documents, which in this case were sealed for the purpose of a criminal trial.  Now there‘s no criminal trial...

SHERMAN:  Right.

ABRAMS:  ... and so the presumption of innocence doesn‘t apply and I didn‘t even know that there was a federal constitutional right to privacy anyway.

SHERMAN:  You know it‘s better than a presumption of innocence.  It is actual innocence that the charge has been dismissed and in most states when the charge is dismissed, whether it‘s after a trial by a jury where you are found not guilty or by the prosecutor dropping the charges you are allowed to swear under oath you have never been arrested, much less convicted of anything, and you‘re allowed to have your records sealed to the world.

ABRAMS:  But that‘s your criminal - that‘s the arrest issues.  The bottom line is this is a case that was dismissed and this is evidence in the case. 

SHERMAN:  Right.

ABRAMS:  I don‘t understand why—and let may bring Rikki Klieman in really quickly.  Rikki, do you have an explanation for me for how—Mickey is saying oh this is standard procedure.  I‘ve never heard of anything like this.  They are sealing all the records from this case.

KLIEMAN:  I have never heard of it, but that doesn‘t mean, Dan, that it can‘t be done.  And I think you‘ve got two things happening here.  One is the one that Mickey mentions, which is the fact that if you look at the idea that you could file any kind of application whether it‘s for school or for a job and say in a case that it has been dismissed in certain situations, it‘s the same way as having a record sealed that is a criminal record sealed that you are having the underlying information sealed in the same way you‘d have your mug shot sealed...

ABRAMS:  No.

KLIEMAN:  ... or your fingerprints sealed.  Let me give one more thought which is the idea also that the civil case is pending.  Now, I don‘t know if this...

ABRAMS:  That is—they didn‘t mention that one time in their—not a single time did they mention that I saw the civil case.  They are talking about his presumption of innocence...

KLIEMAN:  Right.  But don‘t you think, Dan, that that‘s actually a good argument of talking about the fact of the civil case pending?

ABRAMS:  Then they should have made it, but they‘re not.  And the bottom line is—Mickey I mean I‘ll give you final word on this...

SHERMAN:  Yes.

ABRAMS:  ... but you know I still, the idea that records that are generally going to be made public, it‘s different to talk about sealing arrest records...

SHERMAN:  Yes.

ABRAMS:  ... and I mean it‘s just not the same issue. 

SHERMAN:  No, I disagree.  I don‘t think these records are generally going to be made public and you know your problem is Dan, is that you are ticked off that the victim stuff got out but Kobe‘s didn‘t and you know something, life ain‘t fair. 

ABRAMS:  No.  Look, to me, that‘s just a disingenuous argument by the defense.  It‘s not that I don‘t see there can be different legal standards...

SHERMAN:  They followed the rules.  They followed the rules.

ABRAMS:  Oh come on...

SHERMAN:  Anything that they said about the victim...

ABRAMS:  They snuck in...

SHERMAN:  ... obviously they were totally allowed to...

ABRAMS:  They intentionally snuck in a lot of stuff here.

KLIEMAN:  Well Dan, it‘s the fact that the press really wants access to Kobe Bryant‘s statement. 

ABRAMS:  Yes.

KLIEMAN:  That‘s really what the press wants...

ABRAMS:  What are—I don‘t understand.  I‘ve got to tell you.  If Kobe Bryant is so—I don‘t understand what he is so afraid of with regard to the statement but...

KLIEMAN:  Well, of course, none of us understand.  That is why we all want to see it. 

ABRAMS:  All right...

SHERMAN:  You can‘t be not guilty but still slimed and that‘s what you‘re looking for...

ABRAMS:  Wait, not guilty but still...

SHERMAN:  But still slimed.

KLIEMAN:  That‘s a Mickey Sherman rule.

ABRAMS:  All right, anyway I‘ve got to wrap it up.  Rikki...

(LAUGHTER)

ABRAMS:  ... Mickey and Rikki rhymes.  Thanks.  Appreciate it.  Take a break.  Back in a moment.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Osama bin Laden‘s top deputy shows up in a videotape on al-Jazeera, shocker.  The first time we‘ve heard from a high-level al Qaeda operative in months, but first the headlines. 

(NEWS BREAK)

ABRAMS:  We are back.  Just two days before the third anniversary of the 9/11 attacks a vivid reminder that al Qaeda is still there, still threatening America.  Once again, a videotape of Ayman al-Zawahiri, Osama bin Laden‘s number two, has been sent to the terrorist favorite station al-Jazeera Arabic news network. 

The terrorist claims America is on the verge of defeat in Iraq and Afghanistan and says—quote—“The age for security has passed for Americans unless they stop their crimes against Muslims.”

All that in a day when terrorists in Indonesian capital of Jakarta set off a car bomb in front of the Australian embassy.  At least nine killed, 182 wounded.  An al Qaeda affiliate has claimed responsibility on a Web site.  It is also the third anniversary of al Qaeda‘s assassination of Afghan guerilla leader and Taliban opponent Ahmed Shah Massoud. 

That was in the days before 9/11.  So, the question, why are they releasing this tape now?  Is it a chance to taunt the U.S., to tell us just before 9/11 they are still a force or could there be some sort of hidden message embedded there from Zawahiri and bin Laden?  Remember, a lot of their messages preceded attacks, sometimes by just a day.

Let‘s ask my guest, M.J. Gohel, CEO of the Asian Pacific Foundation, a renowned terrorism expert.  So, what do we make—what should we make of Zawahiri‘s statement?

M.J. GOHEL, TERRORISM EXPERT:  Well, Dan, I think as you mentioned this is a timely reminder that Dr. Ayman al-Zawahiri and bin Laden are still out there, they have not been captured.  Since 9/11 we have seen more attacks in more countries than ever before.  And, of course, the 9/11 third anniversary is coming up in a couple of days.  So, there are very good reasons for him issuing this tape. 

But in addition to that, there are some very strange coincidences.  For instance, on 8th of October 2002 Ayman al-Zawahiri released a message and four days later the Bali nightclub bombing took place. 

ABRAMS:  Let me go through some of that—some of the dates there. 

8/6/98:  Zawahiri threatens U.S. in Arabic newspaper.

8/7:  al Qaeda suicide bombers kill more than 240. 

I have 10/09/02 here, Zawahiri threatens the U.S. economy in a taped message.

10/23/02:  Suicide bombers kill 202 at the Bali nightclub.

5/23/03:  Zawahiri audiotape threatens non-Muslims in Muslim countries.  Two weeks later suicide car bombing kills German peacekeepers in Afghanistan. 

In September 29, ‘03, Zawahiri audiotape calls on Muslims to topple Pakistani President Musharraf.  A few months later Musharraf escapes an assassination attempt.

You know, but M.J., do we sometimes have a tendency to read too much into this?  Meaning, there have also been Zawahiri statements.  You know we start to—I sometimes fear that we start to treat this like Nostradamus, where we start sort of evaluating (UNINTELLIGIBLE) see, now something happened.  We have to be careful about that, don‘t we?

GOHEL:  I agree with you, Dan.  I think as rational normal sane human beings we are trying to find some kind of logic into a situation in which there is no logic...

ABRAMS:  Right.

GOHEL:  ... there is no rationale.  We are dealing with people who are brutal, who are barbaric, who really have no regard for human life or for anniversaries or for dates.  But I think one thing is for sure.  The fact that the Afghan election campaign officially began just a few days ago would have triggered Ayman al-Zawahiri to issue this tape because the last thing the terrorists want is to see a proper democratic process succeeding in Afghanistan because they really want to reduce Afghanistan back to the lawless state it was in and to some extent they have succeeded.  There are something like 18,000 Taliban fighters milling around and regrouping within Pakistan launching raids on Afghanistan and some provinces like Sabul (ph) have come under the control of the Taliban once again. 

ABRAMS:  M.J., do you know, does al-Jazeera have any concern about the possibility that he‘s trying to send messages?  I mean do they even think about that?  Do they air his tapes in their entirety, do you know? 

GOHEL:  Well, I think that a lot of people have been concerned about al-Jazeera and its close links with some of the militants.  I mean we know that a Spanish judge did arrest an al-Jazeera journalist with being involved with al Qaeda, and it does seem quite remarkable how al-Jazeera always seems to have a tape at the right time just before the 9/11 anniversary.  And I think there are some questions here that are difficult to answer. 

ABRAMS:  Yes.  All right, M.J. Gohel, thanks very much again for coming back on the program.  We appreciate it. 

Coming up, these Army prosecutors say it was murder when an American soldier shot an Iraqi driver in the back of the head, but a medic had said that the guy was dying and the soldier was trying to take the man out of his misery.  So should he be charged with murder?

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

MAJ. MICHAEL J. INDOVINA, U.S. ARMY 1ST ARMORED DIVISION:  He is charged with murder and dereliction of duty due to the events that happened on May 21.

(END VIDEO CLIP)

ABRAMS:  The first American soldier to be charged with murder in Iraq in a U.S. military court is facing the prospect of a court-martial for killing an alleged militant just south of Baghdad in May.  The soldier shot the man in the back of the head in what another soldier called a compassionate response. 

Twenty-nine-year old Captain Rogelio Maynulet was charged weeks after the incident with murder and dereliction of duty.  According to the government, Captain Maynulet was leading his unit when they came—quote - - “into contact with a black sedan believed to contain militia forces.  A chase began and U.S. forces shot at the vehicle.  The driver and a passenger were wounded.  Shortly thereafter, the wounded driver was shot and killed at close range.”

Sounds bad, but in court one of his fellow officers recounted the story as it was told to him by the captain himself.  After the shootout that a medic pulled a seriously injured driver out of the vehicle, part of his skull had been blown away.  After the medic said nothing could be done for the man, that‘s when Maynulet stepped back and shot the man in the base of the neck or back of the head. 

So, the question—should he really face a court-martial for murder?  “My Take”—if this Iraqi man was dying on what is essentially a battlefield I would hope they wouldn‘t try the soldier for murder just because he allowed the man to die quickly and painlessly. 

Joining me now is Jeffrey Addicott, retired lieutenant colonel from the Judge Advocate General‘s Corps who supports the prosecution in this case and Mark Cohen, former JAG attorney and the author of “The Fractal Murders”.  He sides with the defense.

All right, Mr. Cohen, you know, I—why do you think that this case is defensible? 

MARK COHEN, FORMER JAG ATTORNEY:  Obviously there‘s a (UNINTELLIGIBLE) investigation.  There has to be but it sounds to me as though he was justified in what he did.  We are required as American soldiers to provide humane treatment, compassionate treatment, and it appears from the news reports that the captain only shot this man after the medic had told him that half of his brains were hanging out and that nothing could be done. 

ABRAMS:  You know the argument though.  It goes—here in the United States we don‘t allow in almost every state people to do something like that.  In fact they were never allow it to do it this way.  Do you think that because it‘s the battlefield the rules with regard to the law should be different as well? 

COHEN:  Yes, I do.  And I think it is a question of time.  I mean we‘ve talked about Dr. Kevorkian and things like that, but this is a case where a man‘s brains were hanging out.  He was going to die within minutes in all likelihood.  The medic said that there was nothing that could be done, it was impossible because of the gunfire.  It was impossible to bring a helicopter in and provide any type of further medical treatment.  So I think he did the humane thing and that‘s what we as Americans expect our soldiers to do is to act humanely and compassionately.

ABRAMS:  We are having some technical difficulties with Colonel Addicott, but he is joining us now on the phone.  What do you make of it Colonel?

LT. COL. JEFFREY ADDICOTT, RET. U.S. ARMY JAG (via phone):  Well first of all, this is not a soldier.  This is a line officer.  And this is how we got in trouble at Abu Ghraib.  It was the breakdown of the tactical chain of command.  The captains, the lieutenants they have to be held to a higher standard and you know the law.  I mean this guy committed murder. 

It is an unlawful killing to kill someone (UNINTELLIGIBLE) combat.  It doesn‘t matter if they are five seconds away from death or not.  Now my colleague, of course, was making some excellent arguments as to the sentencing portion of the trial.  There‘s no doubt that he has to be convicted for this if he killed an individual before they were dead (UNINTELLIGIBLE) moron.  We‘ve got to hold him to a higher standard. 

ABRAMS:  But Colonel, isn‘t there some discretion here for prosecutors or for the people investigating this to say look, if it‘s true and again that‘s still to be determined, too, but if it‘s true that the medic says to the officer there‘s nothing that can be done, this guy is gone, that you know isn‘t there something that allows a soldier on the battlefield to do the humane thing? 

ADDICOTT:  Absolutely not.  You are not—there is no provision for a soldier to kill someone in an unlawful manner.  That would be murder.  Now, we are talking about mitigating factors, the actus reas, you know the evil of the act.  He may be able to argue that for sentencing but listen, we‘re, you know, we are under the microscope of the world particularly after Abu Ghraib...

ABRAMS:  Yes.

ADDICOTT:  ... and we have to hold ourselves to a standard that, you know, that other countries understand that we are the good guys. 

ABRAMS:  Mr. Cohen, what do you make of that? 

COHEN:  Well I disagree that this is not a defense.  Obviously it‘s relevant to sentencing, but Colonel Addicott answered his own question.  In order to be murdered the killing has to be unlawful.  And if the killing is justified because you have a duty to provide humane treatment, then by definition a justified killing is not unlawful. 

And the military law specifically recognizes a defense of justification and it‘s possible to argue that under the law of war we have a duty to provide humane and compassionate treatment to those in our custody.  So, I‘d be happy to try this case.  I think that any reasonable person faced with these facts, any officer sitting on that court-martial would have said I‘d have done the same thing. 

ABRAMS:  Colonel Addicott, one of the articles I was reading was talking about sort of other issues that some of his superiors had with the officer in question here.  Does that come in?  Is that admissible in a court-martial? 

ADDICOTT:  Well, if it goes to show a pattern that this individual is not fulfilling his duties because we also have a charge of dereliction of duty...

ABRAMS:  Right.

ADDICOTT:  ... and that means as an officer you have a responsibility to lead by example and our officers have to have the highest moral fiber and command presence.  And certainly that would come in perhaps under the dereliction of duty issue to show a pattern that this individual is not leading. 

ABRAMS:  Yes.

ADDICOTT:  But I disagree with my colleague.  I think there‘s a bright line here.  You cannot shoot an individual that is ordered to combat if they are still alive. 

ABRAMS:  All right.

ADDICOTT:  To say that it‘s a justification theory, you know that‘s a novel argument.  I know of no cases that would support that, but you know hats off to my colleague.

ABRAMS:  All right.  You know look, regardless of what the legal, you know, issues are here, if this captain did do this out of compassion for the guy, boy do I feel sorry for him.  But you know that‘s an if—that is to be determined.  Jeff Addicott and Mark Cohen, thanks very much.  Appreciate it.

Coming up, New York sportscaster Sean Kimerling died of testicular cancer a year ago today.  He was 37.  It‘s a very personal story to me and hopefully will help save the lives of other young men and we‘ll tell you what you can do to (UNINTELLIGIBLE).

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a story, it‘s very personal to me.  A year after Emmy award winning New York sportscaster Sean Kimerling died of cancer.  Take a look back at his life, the disease that killed him and how you maybe can help save lives of other sometimes very young men.

(COMMERCIAL BREAK)

ABRAMS:  A year ago today, Sean Kimerling, an Emmy award winning sportscaster in New York died of testicular cancer.  It‘s a story very personal to me because it really could have been me. 

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE:  In Atlanta tonight, the rarest of the rare...

ABRAMS (voice-over):  Sportscaster Sean Kimerling was living his childhood dream.  A lifelong sports fanatic from Westchester, New York, Sean‘s passion had always been the New York Mets. 

ERVINE KIMERLING, SEAN KIMERLING‘S MOTHER:  He would have this game with my father, his grandfather, where he would be an announcer and they would go back and forth and he actually had a little microphone and he would announce the Mets games. 

ABRAMS:  Now he was doing it for real as a sports reporter and anchor for New York‘s WPIX. 

UNIDENTIFIED MALE:  Evidently these guys have to be in good shape.

ABRAMS:  He had worked hard to get there.  After journalism school in California, Sean couldn‘t find a job. 

NOAH KIMERLING, SEAN KIMERLING‘S FATHER:  He had an idea and his idea was to pack the car with videotapes.  And he said he‘s going to knock on every single station from the West Coast to the East Coast until he landed a job. 

ABRAMS:  His tenacity paid off.  Sean was hired at a small Texas station, then moved to Oklahoma before eventually making it back home. 

JOSH KIMERLING, SEAN KIMERLING‘S BROTHER:  It was absolutely his dream to report on the Mets, to be a part of it, and to see the people who were his heroes when he was little. 

ABRAMS:  After nearly six years in New York, Sean was a rising star, well liked and respected, in great physical shape and getting ready to settle down with his long time girlfriend.  What he didn‘t know, that there was already a deadly disease eating away at his body. 

UNIDENTIFIED MALE:  He would complain of back pain.  And it would be ongoing.  And he would take some Motrin and he would get some relief from it.  The symptoms that he had were symptoms that most people wouldn‘t even figure that would cause this kind of a disease... 

ABRAMS (on camera):  He just thought his back hurt. 

UNIDENTIFIED MALE:  Absolutely. 

ABRAMS (voice-over):  But sophisticated scans showed something far more dangerous. 

UNIDENTIFIED MALE:  We met with the doctor and the doctor said that he has an advanced stage of testicular cancer. 

UNIDENTIFIED FEMALE:  We had the best doctors, the best hospital, but it was too late. 

ABRAMS:  The cancer was too advanced.  On September 9, 2003, just a month after being diagnosed, Sean Kimerling died.  He was 37.  That same month, at that same hospital, being treated for the same disease as Sean was another single, 37-year-old New York based newscaster—me.  My doctor was Joel Sheinfeld. 

(on camera):  How would you describe my case in terms when was it was discovered and how it looked when I got here? 

DR. JOEL SHEINFELD, MEMORIAL SLOAN-KETTERING CANCER CTR.:  Your case, fortunately, was a low stage tumor diagnosed promptly.  Approximately one or two weeks after you initially felt an abnormality. 

ABRAMS:  I got lucky. 

SHEINFELD:  Yes you did.

ABRAMS (voice-over):  Weeks earlier, I happened to be watching a silly movie on TV while on vacation.  One of the characters had testicular cancer.  Some of the symptoms sounded familiar.  Days earlier I had noticed a painless lump on my testicle.  When I got home, I learned it was cancer.  Doctors eventually removed the tumor and now it looks like I‘m in the clear. 

SHEINFELD:  Patients at highest risk for the development of testicular cancer are young men.  It is the most common cancer of young men.  The typical ages are 18-35.  I think it‘s critical that young men be taught how to perform self-exams so that they in turn can detect this at an early stage when it is highly, highly curable. 

ABRAMS:  That‘s the message Sean Kimerling‘s family is trying to get out by creating a foundation in his name. 

UNIDENTIFIED FEMALE:  If some other family can be spared this, some other beautiful young person can live their life out.  That‘s what he would have wanted.  That‘s what we all want. 

(END VIDEOTAPE)

ABRAMS:  This was a very private matter for me.  Most of my closest friends knew nothing about it and I had expected to keep it that way.  But Sean‘s case has always affected me, you know, for obvious reasons, since I first heard about it and so I went public today. 

If you want to help the Sean Kimerling Foundation or donate money, you can log on to their Web site at www.seankimerling.org.  That‘s one “M” in Kimerling.  You can also e-mail them at seankimerling.org or call 212-986-0892 Extension 5.  They‘re also having a fundraising golf event and dinner on September 14.  There are still tickets available.  All the info is on their Web site. 

All right, I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  Many, many of you e-mailing me with your thoughts after I appeared on the “Today” show this morning.  Thank you all so much.  I was really touched by what you all had to say. 

Terri Moore from Indiana.  “Thank you.  I have two sons and I had never even considered educating them on this subject.  Thanks to you I‘ll bring it up tonight.”

From Idaho Falls, Idaho, Terry Busch.  “Thank you Dan for sharing your story.  It must have been difficult for you.  I have young sons.  I‘ll try to make sure they learn from Sean and from you.”

Alice Miceli, Tabernacle, New Jersey.  “I have a son that just turned 40.  I‘ll be talking to him tonight about this cancer.”

Vince from Orinda, California.  “It took some balls, no pun intended, to go on with that report this morning.”

Long-time viewer Jessie Sweeney in Portland, Maine.  “About a year ago you did not look well.  You were away and returned to THE ABRAMS REPORT looking too skinny.  I e-mailed you about possibly ending your vegan lifestyle, perhaps go to McDonald‘s cheeseburger route.  But you look robustly healthy now.”

I remember Jessie wanting to tell that you it was not an eating disorder. 

Finally, from Chandler, Arizona, Suanne Humbert.  “You were able to keep this private for a very long time without so much as an inkling of any problem.  Obviously, you, your family and friends are much better at keeping quiet than most attorneys are even when a gag order has been imposed upon them.”

Seriously, thank you all so much who wrote in to our Web site.  Thank you for your continued support.  Remember, educate yourself, your loved ones.  It can save your life. 

Your e-mails, abramsreport - one word -- @msnbc.com.  Remember where you‘re writing from.  Who are you? 

Up next “HARDBALL” with Chris Matthews.  Thanks for watching.  See you tomorrow.

END

               

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