updated 9/21/2004 11:14:01 AM ET 2004-09-21T15:14:01

Guests: Mortimer Zuckerman, Joe DiGenova, Loren Ghiglione, Brian Wice, Rikki Klieman, Leslie Crocker Snyder

DAN ABRAMS, HOST:  Coming up, Dan Rather and CBS fess up, admitting they never should have used those alleged documents in their critical story on the president‘s military record.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  CBS admits the network was misled by the source who gave them the memos.  But Internet loggers had immediately identified the documents as suspicious.  Question—were any laws broken by the source or CBS?

Plus, Muslim terrorists execute an American hostage in Iraq, and another American and a Brit are still being held.  Why is it that some these groups are releasing hostages while others are just killing?

And the lead detective in the Scott Peterson case says Peterson was quick to offer his own theory about what happened to his wife Laci the day after she went missing.

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, the CBS/Bush memo scandal.  Dan Rather and CBS admit they were duped by a man whose motive really could have been political.

CBS News today—quote—“Based on what we now know, CBS News cannot prove that the documents are authentic, which is the only acceptable journalistic standard to justify using them in the report.  We should not have used them.  That was a mistake which we deeply regret.”

That is a drastic change from the network‘s position about a week and a half ago when the memos that—suggest that President Bush disobeyed direct orders and used political pull to prevent him from—action being taken against him when it aired.

CBS News—quote—“stands by the thoroughness and accuracy of the “60 Minutes” report.  This report was based on a preponderance of evidence.  We have complete confidence, they said, in our reporting and will continue to pursue the story.”

On top of admitting a mistake in its reporting, the network revealed its source, at least one of them.  Bill Burkett, a Democrat and former Air National Guardsman, who has criticized President Bush‘s military record for years.  CBS says Burkett told a CBS producer that his source for the documents was another former guardsman, but now says it was someone else.  Someone whose—quote—“connection to the documents”, an identity CBS News has been unable, they say, to verify at this point.

Regardless of Burkett‘s source, he was the source for CBS.  Knowing his history with the president and his political affiliation and then CBS‘ document experts complaining as well, is it fair to ask—what took so long?

“My Take”—I don‘t believe it was political, as some have claimed. 

Dan

Rather has too long and too distinguished a career to risk it for some second rate forgeries.  He cares too much about his reputation.  He must have believed in the store to go on the air with it.

With that said, it seems clear this was a journalistic disaster that should have been realized at worst a day or two after the report aired.  They deserve a black eye.  I‘ll have more on “My Take” at the end of the show with my “Closing Argument”.

But joining me now, editor-in-chief and publisher of “U.S. News & World Report”, he‘s also chairman and co-publisher of the “New York Daily News”, Mort—sorry, Mort Zuckerman, former U.S. from Washington, D.C., Joe DiGenova and the dean of the prestigious Medill School of Journalism at Northwestern University, Loren Ghiglione is going to be joining us in a moment.

All right, Mr. Zuckerman, let me start with you.  Bottom line a day or two would seem to me after this, there were so many questions about this, for this to have taken so long, journalistic error?

MORTIMER ZUCKERMAN, EDITOR-IN-CHIEF, “U.S. NEWS & WORLD REPORT”:  Yes, I mean u know it‘s one thing to make a mistake.  It‘s another thing to respond with encore.  I just can‘t believe they did it over and over again for as long they did it knowing how many questions have been legitimately raised that they continued to sort of not only dig themselves into a hole, but they kept on digging.  It just—it really—it boggles the mind because, as you said in your opening, I do believe that Dan Rather is a terrific journalist and somebody whose integrity cannot be questioned.

It doesn‘t mean he couldn‘t make a mistake and it doesn‘t mean that CBS, the tiffany of networks couldn‘t make a mistake because when they made it, it‘s a beaut.  It is what—I mean I can‘t recall anything quite this way.  Not that journalism and journalists and newspapers and magazines, just to use my own involvement, we all make mistakes.  But to hang in there when so much evidence was coming forward so rapidly and suffering incredible amount of damage as a result of it, I find that astonishing.

ABRAMS:  So, how does it happen?  I mean bring us inside.  Give us a theory as to what‘s going on in the inside to me it take this long.  Is it Dan Rather fighting with CBS brass?

ZUCKERMAN:  No, I don‘t think that‘s what it is.  I think it is what happens in so many of these cases.  You know, you sort of make the commitment, you make the investment that you yourself can‘t believe you were wrong because your believe in your motives.  You think you did a reasonable job in terms of the due diligence appropriate to being this kind of top rank journalist as he has been for his entire career and all of a sudden you find out the ground is sort of shifting out from under him.  You can‘t quite believe it.

It still boggles the mind because these are not stupid people...

ABRAMS:  Yes.

ZUCKERMAN:  ... and I cannot believe they allowed this damage to be inflicted upon their reputation for as long as it did.  Had they responded earlier and at least allowed for the possibility in a different way, I think it would have been a very different story.  Now, it is really serious damage to both CBS News and Dan Rather.

ABRAMS:  Dean Ghiglione, you were on this program last week and you were essentially saying let‘s wait—we don‘t have you yet.  OK.

Joe DiGenova, let me let you listen to this piece of sound from Bill Burkett on “HARDBALL” with Chris Matthews, February 12, 2004.

(BEGIN VIDEO CLIP)

BILL BURKETT, FORMER NATIONAL GUARDSMAN:  I witnessed the governor‘s office call to the acting general of the Texas National Guard, a directive to gather the files and then the subscript to that was make sure there was nothing there that would embarrass the governor.  I witnessed also the directive and informal directive to a staff member to gather those files and then on a third occasion, I witnessed that, in fact, there was some activity underway with some files—some personal files of Bush, George W., First Lieutenant, 1 L.T., as it was put in handwriting at the top of files within a trash can.

(END VIDEO CLIP)

ABRAMS:  Joe, if you had been a lawyer advising CBS and you knew about that statement from February of 2004, I assume you‘d say to him, be really, really, really careful.

JOE DIGENOVA, FORMER FEDERAL PROSECUTOR:  Well, Dan, of course, I would have.  But you know apropos to what Mr. Zuckerman said, you didn‘t have to be a lawyer to smell danger in this story.  What is amazing about this is not just that.  Any good lawyer would have told CBS to be careful.  They were not.

And the real question is why weren‘t they?  Dan Rather said at the beginning of this disaster that his producer had been working on this story for five years.  Now, how could that be?  And none of the people who were interviewed after the damage was done and the mistakes were apparently made were only interviewed for the first time.

There‘s a lot more to this story than meets the eye.  And the vigor of the defense is the proof that there‘s something more here than meets the eye.  It‘s not just that Dan Rather wanted to believe the story, thought he had a great story.  If he‘s as good a journalist as everybody says he is, this story never would have made it on the air.  There‘s an animus here.  There‘s an agenda...

(CROSSTALK)

DIGENOVA:  There‘s something going on here...

ABRAMS:  ... Joe, why would he...

DIGENOVA:  ... that needs to be...

ABRAMS:  Joe, if it‘s an animus and it‘s basically a second rate forgery, I mean you‘re saying that Dan Rather was willing to risk his career for this animus?

DIGENOVA:  No, what I‘m—apparently so.

(CROSSTALK)

DIGENOVA:  What I am saying is that Dan Rather, maybe it is Dan Animus at this point, Dan Rather has a history of animus toward the Bush family.  He has a history of being partisan in many ways with his own relationships in his family with the Democratic Party in Texas and some of his own conduct.  He should have been particularly careful.

(CROSSTALK)

DIGENOVA:  And what happened in this case?  He was anything but careful...

ABRAMS:  But he‘d have to be a complete idiot, if that‘s his position, right...

(CROSSTALK)

ABRAMS:  ... basically you have to take the position, right, that if he‘s—that if he is an animus towards the Bush family and he wants to show it by putting this on CBS, even though he might have questions about it, you have to admit that he‘d also have to be sort of an idiot.

DIGENOVA:  I think what I believe about Dan Rather is, is that he‘s a person who emotionally at this point really needs some supervision from CBS News.

ABRAMS:  Dean Ghiglione, what do you make?  You were on the program last week and you said you wanted to take some time to give them the benefit of the doubt.  You know you‘re the dean at one of the most prestigious journalism schools in the country.  What do you make of this now?

LOREN GHIGLIONE, DEAN, MEDILL SCHOOL OF JOURNALISM (via phone):  Well, I question whether animus is the major factor here.  I can‘t believe he would do this because he knows the consequences and humility may be an issue.  I certainly worry about the management structure of news organization.  I think Jayson Blair indicated some problems at “The New York Times” that may be relevant here as well.  Supervision is one word that‘s been used recently.  That seems appropriate.  And you know, they introduced a new element in the newspaper where they have a public editor, whatever you want to call him, an ombudsman, who critiques what‘s going on in the news organization...

ABRAMS:  CBS need that now?

GHIGLIONE:  I think it would be wise.  I recall Don Hollenbeck‘s program, “CBS Views the Press” on CBS radio and I think they would benefit from Don Hollenbeck looking at their own operation.

ABRAMS:  All right, let me take a quick break.  The panel sticks around.

When we come back the question, were any laws broken by CBS or its source?

Plus, coming up later in the show, terrorists post video of the vicious beheading of another American hostage in Iraq and threaten to murder more if their demands aren‘t met.  So, why is diplomacy working sometimes and not in others?  The answer—who‘s behind this one?

And in the Scott Peterson case a detective says Peterson offered up a theory of his own as to what happened his wife.  It involved the seven-month-pregnant Laci walking her dog with a lot of expensive jewelry on.

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, did CBS or its source possibly break any laws by airing apparently forged documents?

(COMMERCIAL BREAK)

ABRAMS:  CBS admits it was—quote—“misled” by the source of damaging memos on President Bush‘s guard service.  Dan Rather said today, and I quote “we made a mistake in judgment and for that I am sorry.  It was an error that was made, however in good faith and in the spirit of trying to carry on a CBS tradition of investigative reporting without fear or favoritism.  Please know that nothing is more important to us than people‘s trust in our ability and our commitment to report fairly and truthfully.”

Question:  Is an apology and an admission enough to clear CBS and a story or could there be civil suits, even criminal charges filed against CBS or the source?

Joining me now is Texas attorney Brian Wice and back again former U.S.  attorney from Washington, D.C. is Joe DiGenova.  All right, Brian, let‘s lay out the Texas law real quick—any laws potentially broken here?   

BRIAN WICE, CRIMINAL DEFENSE ATTORNEY:  Dan, as a matter of state law, I think that Mr. Burkett may be guilty of tampering with a government document.  If you make, use or present a document that you want others to believe is a government document knowing that it‘s not, it can be third-degree felony.  You can get 10 years in prison and a $10,000 fine if you have the intent to defraud or harm another.

(CROSSTALK)

WICE:  And in a situation like this, clearly those memos are government records that had to be kept in the regular course...

ABRAMS:  Let‘s put it up there.  Knowingly makes a false entry in or false alteration of a governmental record.  Makes, presents, or uses any record, document or thing with knowledge of its falsity and with intent that it be taken as a genuine government record.  Makes, presents, or uses a governmental record with knowledge of its falsity.

But Brian, are they saying when it says when taken as a genuine government record that in essence, you have to, for example, have gone to a motor vehicle‘s bureau and said look, this is real.  This is authentic and then you‘re guilty of a crime or do you interpret that to mean, look, you give it to anybody and suggest that it‘s a government record and you could be guilty.

WICE:  You know, Dan, the statute says with intent to harm or defraud anyone.  That could be Dan Rather.  That could be President Bush.  That could be Karl Rove.  If Mr. Burkett‘s intent at the time he disseminated that document by sending it out from the Kinko‘s in Abilene Taylor County Texas, was to harm or defraud anyone knowing that that was something that it wasn‘t, then I would think that the Taylor County District Attorney‘s Office can certainly make a case that he‘s guilty under that second (UNINTELLIGIBLE).

ABRAMS:  If the actor‘s intent is to defraud or harm another, the statute says, the offense is a felony in the second degree, an even more serious crime.  Joe DiGenova, how about on the federal level?  CBS‘ source in legal trouble criminally?

DIGENOVA:  Well, I don‘t think CBS is in any legal trouble unless they can prove that someone in CBS knowing—knew that the documents were forged and allowed them to be used in interstate commerce, although it is true that CBS was told by at two of its—least two of its experts that they had grave doubts about the documents and went with the broadcast anyway.  I think the real damage here is not civil or criminal liability for CBS.  It‘s their—the cratering rate—their cratering of their ratings right now.  I mean they are suffering the worst type of consequences for any type of news broadcast.  People have turned them off.

ABRAMS:  Yes and I think that there‘s no question...

DIGENOVA:  And with good reason, may I say.

ABRAMS:  Brian, what about civil lawsuits?  You know, certainly the president is not going to be suing anybody, right?

UNIDENTIFIED MALE:  No.

WICE:  No, I wouldn‘t think that.  I think he‘s got other fish to fry.  Whether or not CBS turns around and decides to file a civil suit in either state or federal court in Texas, again, is probably (UNINTELLIGIBLE).  I really think Joe is right.  Ultimately the real penalty, they‘re going to fade in the Nielsen ratings.

ABRAMS:  And Brian, people—a lot of our viewers write in and they say how is it that CBS cannot be guilty of anything for helping to perpetrate this fraud?  And the legal answer is what?

WICE:  Stupidity is not a crime.  That they never should have let Paris Hilton be the field producer of this fiasco.  I mean I don‘t know what to tell you.

ABRAMS:  All right.  Brian Wice, thanks a lot.  The rest of the guests are going to stick around because we‘ve got plenty more on this topic.

Coming up, the question:  Other scandals, CBS not the only major news organization to blow a big story.  Where does this debacle fit in the sorry list of media failures?  We‘ll talk to our panel about it.

Plus, Islamic terrorist Abu Musab al-Zarqawi claims he personally beheaded another innocent American hostage, threatens to do it again if his demands aren‘t met.  We ask—does he actually have any demands?

(COMMERCIAL BREAK)

ABRAMS:  Back with more on the CBS case of the apparently forged documents.  Not the first time a news organization has gotten a big story wrong, but question—how does it compare with other journalistic disasters?

Back in 1984 “Newsweek” magazine bought the rights to and published portions of what they said were Adolf Hitler‘s diaries.  The documents were fakes second rate ones at that.  The result, the magazine‘s editor-in-chief resigned.  The editor who pushed hardest for the publication of the diaries kept his job and even became editor seven years later.

In 1992, our own network, NBC, aired a “Dateline” report about the potential dangers of certain G.M. trucks, which showed a truck crashing and exploding into flames, said it caught fire because of the placement of its fuel tank.  A G.M. investigation found “Dateline” producers had strapped a model rocket to the truck to manipulate it into crashing to make sure it would catch fire.  G.M. filed a lawsuit, forced NBC to publicly admit it had misled viewers.  The result—the president of NBC News and three “Dateline” producers resigned.

CNN retracted a story it aired in 1998 claiming the U.S. government used nerve gas in a 1970 mission to kill American defectors in the Vietnam War.  After it backlashed, CNN investigated the story and ultimately retracted it.  The result—CNN fired two producers responsible for the story.  The producers later sued the network and settled out of court.

The list continues.  Stephen Glass literally made up people, places and events in his reporting for “The New Republic”.  Jayson Blair at “The New York Times” deceived readers in story after story, fabricating details, plagiarizing information.

Jack Kelley at “USA Today” resigned after it came out that apparently he, too, had fabricated or plagiarized stories for years.  Several TV and print publications reached settlements with Richard Jewell.  Remember him, the Olympic security guard, who was named as a suspect in the 1996 Olympic Park bombing before he was cleared by the government.

So, where will the scandal at CBS fit into the long list of other journalistic errors?  “My Take”—this one will remain on the top of the top five list for the next 10 years particularly as our society continues to polarize politically.  This will continue to resonate even more than an exploding fuel tank, even though I believe in that case it was more than just negligence as is probably the case here.

All right.  Let me go right to Mort Zuckerman on this because he‘s the perfect person to ask.  Not only is he the editor-in-chief, publisher of “U.S.  News and World Report”, not only chairman at “Daily News”, but he also writes a column.  He‘s still reporting every day.  So, Mort, as someone who can wear both hats, where does this fit in, do you think, in terms of the journalistic disasters and how will this be seen historically?

ZUCKERMAN:  Well, I think it‘s going to be, as you say, one of the top five or 10 journalistic black eyes and disasters over the last several decades.  It‘s going to have a special dimension though, besides the reputational damage and the reflection that it has on the competence, the professional competence of the various people involved in this story.  But I think in political terms, it‘s going to have a real chilling affect on a lot of journalists who are going to try and—quote—unquote—“Do these expos’s of people who are involved in the highest levels of national politics.

I mean this is something that is going to cause people to tread very, very carefully and in tactical terms, frankly, it‘s going to be a big help to George Bush and to all of those people who believe in the bias of the media, particularly the liberal bias of the media.  And so I think it‘s going to have real political ramifications and ramifications for the way the world of journalism covers politics for a long time to come.

ABRAMS:  And I should say, you know, we get documents a lot.  I mean...

ZUCKERMAN:  Right.

ABRAMS:  ... you know in all kinds of different sorts of reporting...

ZUCKERMAN:  Right.

ABRAMS:  ... you get documents and what you do is you rely on the source a lot.  I mean people can say, oh, how could they not have authenticated this, et cetera, but the truth is—and let me go to Dean Ghiglione on this—you know, the truth is very often what journalists are doing is they‘re saying, you know what, I‘m not going to sit there and look at the type on every document I get.

The bottom line is if I count on my source, my source could tell me something just as much as give me a document if I believe the person, right?

GHIGLIONE:  Well right, and I also worry about you know a month before this we were—“The Washington Post” and “New York Times” were acknowledging that they—the top editors at those papers had erred before the war in Iraq by not giving front page prominence to more articles that cast doubt on the Bush administration‘s claims that Saddam Hussein was hiding weapons of mass destruction.

ABRAMS:  But that‘s—but there‘s a difference.  All right, I mean that‘s really just talking about what they should have covered and how they should have covered it.  Here we‘re talking about fraud.

GHIGLIONE:  Well, I wonder whether there will be a more conservative -

·         a chilling affect, in effect, on news organizations, and whether lawyers will be listened to more carefully, which will indeed be—they‘ll be more careful, careful in ways that we want them to be careful.  But careful in ways that may not help the democracy and the way it needs to helped by a journalist that take a watchdog role and looking at the government.

ABRAMS:  And Joe, you, I assume, have a different take on it politically.

DIGENOVA:  Well I—no, actually, I agree with Mr. Zuckerman.  I think the consequences of this are actually quite far-reaching in terms of the way certain media organizations will cover.  But I do think historically it may rank even number one because this may actually have an affect on the views of some voters about how they should vote in this election.

Because ultimately, remember, the investigation is not over.  Terry McAuliffe issued a very strange statement today, the chairman of the Democratic National Committee.  He said the DNC had nothing to do with the preparation of the documents.  A very carefully selected word, which leaves open to question were they involved in the transmission of those documents to CBS News?  As I said, I think...

(CROSSTALK)

DIGENOVA:  ... Mr. Zuckerman has actually hit it on the head.  This story is not over and let me just say it with regard to what the dean said, two of CBS‘ own experts advised them there were serious problems with these documents.  Why were they ignored?

ABRAMS:  Joe, do you think that—do you think when they say preparation they‘re sort of—I mean no one has accused them.  Do you think they are coming out with a sort of preemptive defense...

DIGENOVA:  Oh, I don‘t think there‘s any question about it, Dan.  The DNC or their agents must have been involved in this.  Terry McAuliffe is a lawyer.  He‘s a careful guy.  He‘s an investor.  He is a very smart guy.  That was a prepared statement.  He said the DNC had nothing to do with the preparation of the documents.

ABRAMS:  Mort Zuckerman, final comment on that, quickly...

ZUCKERMAN:  Yes.  Well I mean I think if we do find out that the DNC was involved in that surely at this stage of the game is not beyond anybody‘s realm of anticipation, then I think you will have another huge political scandal that will do great damage to the Democrats in the forthcoming election.  And that is something that will not be dismissed and people are going to be looking after that and at that very, very carefully.

ABRAMS:  All right.  Joe DiGenova, Dean Ghiglione and Mort Zuckerman, thanks a lot for coming on the program.  Appreciate it.  Great panel.

Coming up, an American hostage brutally beheaded by terrorists, then it‘s aired on Arab television.

Plus, turns out Scott Peterson gave police his own theory about what he thought happened to his wife.  He offered it the day after she went missing.  I‘ll tell you what he said.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Iraqi terrorists behead an American hostage.  Terror leader Abu Musab al-Zarqawi says he‘s responsible.  He‘s threatening to kill another American and an Englishman, but he really doesn‘t want anything less than mayhem does he?  First, the headlines.

(NEWS BREAK)

(BEGIN VIDEO CLIP)

PATTI HENSLEY, WIFE OF HOSTAGE IN IRAQ:  I‘m just going to beg again that leave these three kind gentlemen alone.  They are there doing work that benefited the Iraqi people and they should not be faulted for that.

(END VIDEO CLIP)

ABRAMS:  A plea for mercy to a vicious gang of Islamic terrorists from Patti Hensley, the wife of one of three men kidnapped in Iraq last Thursday.  Her husband Jack, fellow American Eugene Armstrong and Brit Kenneth Bigley.  The kidnappers led by al Qaeda ally Abu Musab al-Zarqawi said they would behead all three unless U.S. forces released Iraqi women held in Iraqi‘s Abu Ghraib and (UNINTELLIGIBLE) prisons by sometime today.

The U.S. insists there are no Iraqi women held in those prisons and that only two Iraqi women are in U.S. custody anywhere in Iraq.  That, of course meant nothing to Zarqawi.  Today, his group released a video on an Islamic Web site.  It shows Eugene Armstrong rocking back and forth.  The terrorist in black said to be Zarqawi himself reads a long statement in Arabic and when the statement is over, Armstrong is beheaded.

What were the hostages doing in Iraq?  Here is Ty Hensley, Jack Hensley‘s brother on the “Today” Show.

(BEGIN VIDEO CLIP)

TY HENSLEY, BROTHER OF HOSTAGE IN IRAQ:  The type of work that he is doing, again, is to work with the Iraqi people in helping to develop a water system for the Iraqi people.  He‘s helped work on a school, rebuild a museum and also housing for the Iraqi people.

(END VIDEO CLIP)

ABRAMS:  And for that, helping the Iraqi people, trying to rebuild their country the punishment from Zarqawi was a cruel and barbaric death and a renewed threat from him to kill the other U.S. hostage, Jack Hensley, in 24 hours.

“My Take”—these so-called demands are fakes, efforts to just get attention from made up causes.  Zarqawi‘s group did release some Turkish truck drivers they kidnapped, but they were Muslims.  He never intends to release any Westerners, so-called infidels alive.

With me now is terrorism expert and MSNBC analyst Steve Emerson. 

Steve, that‘s right, right?

STEVE EMERSON, MSNBC TERRORISM EXPERT:  Oh Dan, you got it right on the head there.  Zarqawi doesn‘t have any type of linear rational demands.  He intends to kill as many Americans as possible.  There‘s nothing rational about his approach.  He wants to cause as much mayhem, cause as much terror psychologically.  I‘m not so sure, by the way, that the pleas for mercy really work to the favor of the families.  I think they only cause more cruelty and instill more power in his hands.

ABRAMS:  Why are we hearing—and I think that people who are just sort of watching what‘s happening from a distance hear that some hostages are released, others are not.  Bottom line is we need to distinguish between the groups that are holding the people who are being released and Zarqawi, right?

EMERSON:  Well absolutely.  In fact, the last hostage that was released or one of the last, a Westerner was released s was an American journalist, if you call, and he was released under threat of decapitation because he was held by a group that was connected to the al-Sadr militia and there was a rational approach here because—they wanted to essentially curry favor with the West.

Zarqawi, on the other hand, is definitely affiliated with al Qaeda.  His home message is to kill as many Westerners, to destroy as much of the West, western regimes he can, so he‘s doing it on his own terms.  The only problem, as I see, Dan, is that U.S. intelligence has just—has really—has become really—I hate to say it, a laughing stock in the Middle East.

There is no ability for the U.S. to figure out where these attacks are taking place, whether there are car bombs against the convoys or whether the kidnappings are occurring.  Not one kidnapper has ever been found connected to Zarqawi and I think that‘s a telling statement that there has got to be a whole revamping of the U.S. intelligence effort on the ground.

ABRAMS:  Yes and I‘ve got to think that, you know, you can talk about bin Laden sort of being in some, you know, sort of mountain, sort of place, in the Afghan-Pakistan border that‘s difficult to find, difficult to locate him.  You know, you don‘t know exactly where he is.  But you know it seems pretty clear that they have a decent sense of where Zarqawi and his people are working out of, right?

EMERSON:  Well they should have.  On the other hand, the fact is this was an inside job.  They captured these guys who were working as contractors because apparently the local guard protecting them apparently were intimidated and revealed information, which is why most of the casualties that are incurred by the U.S. is because of local infiltration of U.S. military security facilities and of the private guard network.

Look, ultimately, Dan, the issue is really whether the Islamic world is going to so make it reprehensible that even Zarqawi would don‘t it and there we need Islamic clerics.  Unfortunately, there have been a series of fatwahs or religious (UNINTELLIGIBLE) saying that it‘s OK to kill American enemy or American forces, not necessarily OK to kill civilians, but then the bad guys (UNINTELLIGIBLE).

ABRAMS:  Yes.  Yes, I mean that‘s—yes once you start saying, well, it‘s OK to kill—Steve Emerson, thanks very much.  Appreciate it.

EMERSON:  You‘re welcome.

ABRAMS:  Coming up, the lead detective in the Scott Peterson case says Peterson was quick to offer his own theory about what may have happened to his wife the day after she went missing.

And Dan Rather has been criticized for having a liberal bias, but is that really why he went with his story about President Bush‘s National Guard service or was it more likely that he was just trying to get the scoop?  It‘s my “Closing Argument” coming up...

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

MARK GERAGOS, SCOTT PETERSON‘S ATTORNEY:  Criminal defense lawyers are supposed to just go out and create reasonable doubt, if you will, or argue reasonable doubt.  We are not into arguing reasonable doubt in this case.  We have set the bar extremely high and that‘s to prove that Scott is not only factually innocent, but to figure it out exactly who it is that did this horrible thing to Scott‘s wife and to Scott‘s son and to their grandson.

(END VIDEO CLIP)

ABRAMS:  While defense attorney Mark Geragos is yet to identify those real killers, Scott Peterson apparently offered up his theory early on as to who it might be.  Detective Craig Grogan on stand today testified that barely a day after Peterson‘s wife went missing, he offered up a theory about what may have happened to Laci.

On Christmas Day, Peterson told Grogan that Laci—quote—“had been wearing jewelry that she inherited from her grandmother and that he had seen her wearing it on that morning and when she went into the park, a transient had robbed her for her jewelry.

Edie Lambert from NBC affiliate KCRA joins us from outside the courthouse.  Edie, transient, robber, who also wanted her baby?

EDIE LAMBERT, KCRA CORRESPONDENT:  Yes, it remains to be seen exactly what the jury takes away from that.  I can tell you that the prosecutors threw out the fact that nearly all of the jewelry that Scott had described seeing her with later found in the house.  Now, right now the jury is seeing and hearing interviews between the lead detective in this case, Craig Grogan, and Scott Peterson.

I suspect that they‘re seeing a videotape right now.  Earlier we heard two phone calls.  Those stem from December 30, 2002, just five days after Laci Peterson was reported missing or I should say after Detective Grogan took over the case.  The first call Peterson explains that they might find his blood in his truck because he cut his hand.

As you know, they actually did find blood in his truck.  He also says that Laci knew all about his boat.  I have a quote for you.  “You can‘t go out and buy something without telling your wife.”  He said she had been at the warehouse and had seen the boat.

And it‘s interesting to note that he is the one who gets off the phone, saying I‘ve got to go and do interviews with the media.  The next call a few hour later Detective Grogan asks him about the concrete anchors.  Scott says he made just one of them in a plastic paint bucket.  Grogan confirmed that mold a year later.

As he‘s being questioned about the anchors, Scott brings up his then attorney.  He asks have you talked to Kirk McAllister?  Grogan says, no, and Scott says OK, I don‘t mind answering your questions and he continues to talk about anchors.  Also Grogan had asked Scott about the use of his credit card during his fishing trip the day that Laci was reported missing and Scott refuses to give him that number.

Now as you know, Detective Craig Grogan is the lead investigator in this case, so he‘s the one on the hot seat as the defense makes accusations that Modesto police rushed to judgment and focused on Scott way too early.  With that in mind, the prosecutors tried to draw out some of the reasons that police had to focus on Scott early on and we have a list for you.

First of all, he was closest to the victim.  He was the last person to see Laci.  He‘s the one who discovered that she was missing although it was her stepfather who called 911.  Laci disappeared when he was all by himself.  He had no alibi.  And there were wet mops by the house and his fishing clothes were already run through the washing machine.

Detective Grogan said that suggested a cleanup or even a cover-up.  Now Grogan also interviewed Peterson early on in conversations that were not taped that included Scott denying any affairs, even any suspicion of affairs and that Scott had told them, as you pointed out, his theory of what really happened to Laci.  This was just on Christmas Day, one day after she was reported missing.

And Dan, I can tell you we just got an update from the judge.  They are now expecting the prosecution to wrap up this case by the end of next week.

Back to you.

ABRAMS:  Wrap up at the end of next week.  (UNINTELLIGIBLE) well, it went a little quicker than we expected.  All right, Edie Lambert, stay with us.

“My Take”—of course, it‘s absurd to believe that a transient, thief, child robber, satanic cult killed Laci.  That‘s the beauty of being on the defense side.  Your theory doesn‘t have to necessarily make sense.

Let‘s bring in our legal team, former New York State judge and NBC analyst Leslie Crocker Snyder and famed criminal defense attorney Rikki Klieman.  Rikki, do you take offense at that characterization?

RIKKI KLIEMAN, CRIMINAL DEFENSE ATTORNEY:  Well, Dan, I would never take offense at that from you.  Nonetheless, what we have to remember is that the defense has to just simply raise the reasonable doubt.  The only thing that I do take offense at is this—it‘s not like Scott Peterson said (UNINTELLIGIBLE) I have solved this case.  I have a theory of the case.

What he was doing was offering up a possibility.  You know half of this country, probably more, convicted Gary Condit of abducting and killing Chandra Levy when there was really no evidence of his being near her that day at all.  So the fact is someone might say well it could have been a transient, it could have been someone in the park, it could have been ABC, XYZ...

ABRAMS:  Except there was no evidence against Gary Condit.  I mean that‘s the difference, I think, Judge Snyder, no?

LESLIE CROCKER SNYDER, FORMER NY STATE JUDGE:  Well no.  I love Rikki Klieman.  Hi Rikki.  It‘s great...

KLIEMAN:  Hi Leslie.

CROCKER SNYDER:  ... to hear you talk, but you know, it is the typical defense spin.  You know, you say anything enough times as a defense attorney and you really think that somehow someone is going to believe it.  I think there are a lot of problems with the defense theory.  His theory is absurd, and of course, the jewelry turned up.

But you know one of the most, I think, one of the most weird things about the—some of the ridiculousness of the defense theories is that someone would abduct Laci, wait until she has the baby, and then drown them both.  I mean that has always struck me as a very strange theory.

ABRAMS:  And also the fact, Rikki, that they found this jewelry.  Let‘s say Scott‘s theory initially is oh, she was wearing all this jewelry out when she went walking, which sounds a little bit odd, you know, seven and a half months pregnant, first of all, she‘s going, walking the dog, OK possible, but then wearing like all this jewelry.  Then they found most of the jewelry at the house.

KLIEMAN:  Well, they found most of the jewelry, Dan, but not all of the jewelry.  And we do know from other evidence in this case that Laci Peterson was very attached to her jewelry and she liked to wear her jewelry.  I mean I have certainly had days, probably not very well advised, where I have gone jogging in Griffith Park in Los Angeles or Central Park in New York realizing that I have my jewelry on and it‘s an unconscious move...

(CROSSTALK)

KLIEMAN:  ... put on jewelry in the morning.

CROCKER SNYDER:  Dan, I think one thing that‘s really important here is that the prosecution is getting much too defensive about why they focused on Scott Peterson.  I mean the overwhelming percentage of murders of a husband or wife is by the spouse.  He is the closest person.  They are bound to investigate him.

I don‘t know why they‘re getting so defensive about this rush to judgment.  All the factors they list, yes, but he is the spouse.  He doesn‘t have an alibi and then everything goes from there.  They have nothing to be defensive about.

ABRAMS:  Leslie, good or bad thing for the prosecution that they‘re wrapping up a week from Thursday?  I mean would you say a good thing that they are finally this disaster or you know, bad thing that, boy, this is all they got?

CROCKER SNYDER:  Well, I‘ll tell you if they can‘t pull this together, I have presided over weaker circumstantial cases, like the doctor case I always talk about.  They have got to pull this together so that Scott Peterson is the only reasonably possible person who is guilty.  And I think the evidence is there.  But it‘s weak and they have to pull it together.

So when they end doesn‘t make any difference.  The question is, can they pull it together?  From what we have seen so far, I really have a lot of doubt, but they did bring in the deputy district attorney—did you see that—on questioning their lead detective.  So maybe there‘s some hope that somebody competent may pull it together.

ABRAMS:  Rikki, at this point, and again, we still have, you know, some testimony to go for the prosecution, based on what you have seen, if you‘re a defense attorney here, do you put on almost no case?

KLIEMAN:  Well, you know how I am, Dan.  Yes, I put on almost no case.  I think that anywhere that Mark Geragos goes, he has to be really solid and it has to be very simple.  Because if he starts doing what the prosecution did, which is playing defensive ball, that‘s a big mistake.  And if he tries to muddy the waters in his own case, he dilutes his best argument, which is those waters have been muddied by the prosecution.  So I think he puts on something because he‘s dealing with some expert witnesses there, but I don‘t think he puts on much.

ABRAMS:  Yes, I certainly am going to be there for closing arguments and hopefully the verdict when I go out there.  You know Detective Grogan is on the stand.  He‘s the one who wrote the arrest warrant for Scott Peterson.  And you know sometimes I think we forget this is what Grogan said at the time was the motive for the crime.

Same guy is on the witness stand now, said the motive of that crime is likely linked to Scott‘s failing businesses and financial situation, in addition to the emotional and financial pressures of becoming a parent when he lacked any desire to have a child.  The expensive desires of his wife, including her desire for a new vehicle and home and plan to be a stay-at-home mother likely compounded the situation.  Scott‘s continued desire to establish a long-term permanent relationship with Amber Frey may have enhanced the motive.

All right, so Rikki, that was the motive at the time.  Sound to you like prosecutors are kind of sticking to that as the motive?

KLIEMAN:  Sort of.  I think that the real problem for the prosecution in this case is they like a lot of motives and they get really squishy, too.  Usually the defense is accused of being squishy.  Here they kind of go with whatever the motive of the moment is...

ABRAMS:  Yes.

KLIEMAN:  ... but I do think that they have put most of their eggs in the Amber Frey basket and I will stand by this.  The idea that he would have killed Laci Peterson because he wanted a permanent future with Amber Frey...

ABRAMS:  Yes.

KLIEMAN:  ... I think...

(CROSSTALK)

ABRAMS:  I‘ve got to wrap it up, Leslie.  They will not say that if they are smart.  They will just say he wanted out with Laci.

UNIDENTIFIED FEMALE:  Exactly, I agree with you...

ABRAMS:  Leslie Crocker Snyder, Rikki Klieman, always great to have you.

Edie Lambert, thanks again.

UNIDENTIFIED FEMALE:  (UNINTELLIGIBLE)

ABRAMS:  All right.  Coming up, was Laci Peterson—no, that‘s not what we‘re doing next.  Oh, yes it is.  One of you are asking was she killed for her jewelry?  Guess what?  One of the former jurors wrote in...

(COMMERCIAL BREAK)

ABRAMS:  Coming up, I respond to those who say CBS‘ problems was a result of partisanship.  I don‘t think so, but don‘t count on me to defend CBS.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—what really happened with CBS and those allegedly forged documents?  Well, this was likely over eager, possibly reckless journal.  I think almost certainly not partisan politics by Dan Rather and CBS as some are claiming.  Some partisans saying that Rather likely knew this story was shaky, but still aired it in an effort to help bring down the president.  That he went with the story to somehow help Senator Kerry.  Think about that for a moment.

Senator Kerry‘s first major policy speech in weeks, completely eclipsed by the CBS story today.  Many are now questioning whether Democrats are behind any forgery.  That helps Kerry?  To those of you who say Rather may have believed he would never get caught, I say you don‘t know Dan Rather.  He may be a lot of things, fool, not one of them.  If he thought there was a chance these documents were fake, he just wouldn‘t have done it and certainly would have realized the repercussions that this would forever stain a 50-year career.  He‘s not dumb.

Now, that in no way excuses CBS and Rather‘s choices here.  It just eliminates one possible motivation.  You can argue that Lieutenant Colonel Bill Burkett, the main source on the story, was driven by politics and maybe he even went to Rather because he thought he would have a more receptive argument.  Fine, that may have been Burkett‘s motivation, but Rather and CBS likely just wanted the scoop too much.

This was likely pure journalistic failure, not a political failure.  I‘ve been there many times.  Someone offers information that seems credible and could make you the journalism star of the week with a big exclusive.  You feel the juices flowing.  You‘re thinking this is why I do this for a living.  In this ever competitive day and age it matters.  You want it to be true because no matter who it helps, it means you are excelling at your job.  That‘s not politics.  It‘s just pure self-esteem and pride.

For example, I‘ve been leaked documents in cases that seem to help the defense, even though I‘m personally convinced the person is guilty, I‘d still go with it if it‘s true.  We have to be careful.  Everyone claims to have the document or the inside scoop that will make or break the case.  Here CBS‘ problem was probably wanting the glory rather than wanting to impact the election.

I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last week on the program, the Scott Peterson case one of my guests said the defense‘s theory that—quote—“voodoo people caused certain injuries killed baby Conner and then dumped the mother didn‘t make any sense”.

Richard Nogawa in Irvine, California.  “Why is the voodoo theory preposterous?  Research the Evelyn Hernandez case.  I think it‘s preposterous that the media hasn‘t crucified the prosecution even worse.”

Research—Richard, I‘ve researched it a long time ago and I‘ve talked about it.  She was pregnant.  She was killed likely by someone who knew her.  No relevance here.  I don‘t think you‘re watching the show if you think we need to crucify the prosecution anymore.

From New York, Deb Healy on one of the secretly recorded phone calls between Peterson and girlfriend Amber Frey, which might contradict the defense‘s theory that Laci was abducted while walking her dog.

“Did you not pick up in the tape that you just aired that Scott says to Amber that she was abducted from the house where she disappeared.  Laci vanished from her house, not some staged walk to the park.”

You know, Deb, I did notice that.  It struck me, too.  I thought Scott believed she was abducted while walking the dog in the park, not at the house.

All right, we‘re out of time.  I wanted to read you former juror number five, Justin Falconer, wrote in saying he thinks Laci was robbed and they grabbed her to get her jewelry.  I don‘t know where he‘s getting this evidence, but we‘ll get to...

Thanks for watching.  Out of time.  See you tomorrow.  “HARDBALL” up next.

Thanks for watching.  I‘ve said that.  I‘ll say it again.  I really mean it...

END   

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