updated 9/24/2004 12:47:51 PM ET 2004-09-24T16:47:51

Guests:  Jayne Weintraub, Dean Johnson, Lisa Bloom, Robert Dunn, Viet Dinh, Frank Dunham

DAN ABRAMS, HOST:  Coming up, jurors see new home video of Laci Peterson taken before she disappeared.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  The tape of a happy Laci Peterson found in a camera stolen from the Peterson home after Laci disappeared and new video of the police searching for physical evidence in the home as well.

Plus, he‘d become known as the second American Taliban.  Another American citizen caught fighting for the enemy.  Held at Guantanamo, the prison reserved for the worst of the worst, now he‘s being released.  That‘s right.  Free.  No charges.  What happened?

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  Today jurors in the Scott Peterson case saw videotape of Laci in the Peterson‘s own home video.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Hi.

UNIDENTIFIED MALE:  (UNINTELLIGIBLE)UNIDENTIFIED FEMALE:  Where is that going to?

(END VIDEO CLIP)

ABRAMS:  The video was found in a camcorder stolen by a neighbor named Kim McGregor.  McGregor broke into the Peterson home in mid January 2003, weeks after Laci was reported missing.  She apparently fixed herself a drink, made herself at home, opened up some of the Peterson‘s Christmas presents before walking off with the video camera.  Now, police later questioned her, ruled her out as a possible suspect.

Also today the prosecution wrapped up its direct questioning, its questioning of the lead detective in the case.  They asked him about the days leading up to Scott Peterson‘s arrest.  Now Mark Geragos is getting his chance to cross-examine him.

Edie Lambert from NBC affiliate KCRA has been in court all day and Edie brings us up to speed.  So what‘s been going on Edie?

EDIE LAMBERT, KCRA REPORTER:  Well, Dan, the video you just showed us was the first thing the jury saw this morning and then as you mentioned, the prosecutors were walking the jury through the days leading up to Scott Peterson‘s arrest, some interesting information there.  Detective Craig Grogan, the lead detective, said he had just gotten to the point where he was starting to think they‘d never find the bodies when the remains of Laci and Conner Peterson were discovered.

That was April 14 and it set a plan into action.  Detective Grogan immediately began trying to locate Peterson.  But remember, at that point they didn‘t have an I.D. or the bodies and the DNA analysis takes some time.  The next day, April 15, Grogan asked the DNA lab to give them some lead-time before announcing the results to the media.  Again, he wants to make sure that he knows where Peterson is.

April 16, officers find Peterson near San Diego.  They start surveillance.  April 17, Grogan gets an arrest warrant and April 18, Department of Justice agents arrest Scott Peterson.  It‘s interesting to note they made that arrest before there was a positive I.D. on Laci and Conner and that‘s in large part because he‘d been driving so erratically that day.  Grogan said that when Scott Peterson was arrested, he was not wearing a wedding ring.

Now fast-forward a couple of hours later.  Both of them are in the back of a car heading up to Modesto so that they can book Scott Peterson into jail.  Grogan gets the call that the identities have been verified.  He said that when he told Scott that the bodies were Laci and Conner, Scott took off his sunglasses and wiped away tears.

Dan, as you mentioned, we are now into cross-examination.  It is very meticulous and very detailed.  You may recall that Detective Grogan went through a complete list of all the reasons that he thought Scott Peterson was guilty.  Mark Geragos doing much the same thing now, his own list point-by-point offering what he considers innocent explanations for a lot of the evidence.

I can quickly run through two of those with you.  The very quick trips that Scott Peterson took to the Berkeley marina after Laci disappeared explained by Geragos as Scott Peterson looking for witnesses who could corroborate his alibi.  Also Geragos hauled in a huge bag of cement mix, this is different cement mix that Scott bought specifically for home repairs, Geragos suggesting this is the reason that the cement used for the anchors didn‘t match the samples taken from the home, two separate bags.

Back to you.

ABRAMS:  Edie, stay with us.  All right.  You know—“My Take”—video helpful humanizing Laci.  A reminder that this case is not about some bodies that washed up on a shore, but about a living, vibrant, beautiful woman who was killed for no reason.  I got to tell you, this rush to judgment business that the defense has been focusing on so much is pretty good evidence here that, you know, they took a long time.  They took four months to arrest him.

Lets bring in our legal team—Court TV anchor and civil rights attorney Lisa Bloom, criminal defense attorney Jayne Weintraub, in the courtroom for us today, San Mateo County prosecutor Dean Johnson.

Jayne, does this sort of wipe away the argument that they can make that there was this massive rush to judgment?  Grogan had 41 reasons why he thought the body was going to be found in the bay.  (UNINTELLIGIBLE) he was right and then he describes point-by-point to what led up to the arrest of Scott Peterson four months after Laci went missing.

JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY:  Dan, he‘s the state lead detective.  He had 41 reasons.  First of all, I‘d like to hear one reason of how this came into evidence and what applicable rule of evidence...

ABRAMS:  ... you‘re focusing...

WEINTRAUB:  ... number one...

ABRAMS:  ... on the legal technicalities...

(CROSSTALK)

WEINTRAUB:  Hold on.  It is all his opinion.  You know you mentioned something that‘s most important.  Prejudice, that‘s what happened today.  Starting off with a video of Laci Peterson, beautiful, vibrant, lovely girl.  Nobody is saying anything other than that.  What does that have to do with the probative value of proving a murder case...

ABRAMS:  Oh boy...

WEINTRAUB:  ... or a link to Scott Peterson killing his wife?

ABRAMS:  You know defense...

WEINTRAUB:  All this shows is...

ABRAMS:  ... the defense is in trouble when defense attorneys like Jayne Weintraub have to start sort of leaning back on legal questions of why things were admissible or not admissible.  You know—I mean I keep thinking Jayne has been walking with confidence on the program, all the time about how great the defense is doing.  Jayne, are you basically saying that because of these legal ruling the defense is falling apart?

WEINTRAUB:  The defense hasn‘t even begun yet.  What are you talking about?  The prosecution hasn‘t proved a murder.

UNIDENTIFIED FEMALE:  Hey Jayne.

WEINTRAUB:  They are so desperate they are now stooping to opinion evidence of a cop.

ABRAMS:  Dean Johnson...

(CROSSTALK)

ABRAMS:  Dean Johnson doesn‘t laugh all that often on the program, but he‘s actually laughing.  So Dean, what are you laughing about?

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Oh Jayne, rush to judgment?  Look, you‘ve got a woman who disappears.  The last man to see her alive is fishing in the very place where her bodies wash up.  Yes, I know people just jump to conclusions.

Look, if the cops didn‘t start investigating and look toward arresting that guy with that evidence and you were the taxpayer paying their salary, you‘d want your money back.  This is no rush to judgment.  This is the demise of the rush to judgment defense...

WEINTRAUB:  Where‘s the murder...

JOHNSON:  Wait a minute.  I‘m not finished Jayne.  Why does it come in?  You asked a question and I‘ll answer the question.  Because the defense opens it up.  If you say the cops rushed to judgment, then all of the cops‘ suspicions...

WEINTRAUB:  It‘s the prosecution‘s case...

JOHNSON:  ... and all of the...

ABRAMS:  All right...

(CROSSTALK)

ABRAMS:  Hang on...

JOHNSON:  ... all of the reasons for those suspicions then come into evidence.

ABRAMS:  Lisa Bloom...

JOHNSON:  That‘s why it‘s coming into evidence...

(CROSSTALK)

ABRAMS:  Hang on.  Hang on.  Let me ask Lisa Bloom a question.  Lisa, you work for Court TV, all right...

LISA BLOOM, COURT TV:  That‘s true.

ABRAMS:  Everyone‘s been saying for a long time that this is a case falling apart and that the prosecution has been messing it up and not putting in the right evidence...

BLOOM:  I haven‘t been saying that.

ABRAMS:  Is this—well you know that most people, including most of the people...

BLOOM:  I don‘t know about most people, many commentators.

ABRAMS:  Most of the—all right, most of the people on Court TV have been very critical of the prosecution...

BLOOM:  That‘s not the same thing as saying the case is falling apart.

ABRAMS:  Well...

BLOOM:  I think we‘d certainly like to see the prosecution streamline the case...

ABRAMS:  All right, well...

BLOOM:  ... but I think the evidence is there.

ABRAMS:  I don‘t know.  Maybe you‘re not watching the same network I‘m watching.

BLOOM:  We‘ve got a variety of opinions...

ABRAMS:  All right, all right, fine, whatever...

BLOOM:  ... over here at Court TV.  I watch it all day long, Dan.

ABRAMS:  Fine.  Bottom line is I‘m asking you this, has the sentiment changed based on the presentation in the last week or two?

BLOOM:  You know, I don‘t know.  I honestly do think there is a variety of opinions.  We‘ve got criminal defense attorneys and prosecutors debating this stuff all day long.  I‘ll tell you what I think.  There was no rush to judgment in this case.

We had the low-speed chase yesterday by Special Agent Quick.  Maybe he could be accused of a rush to judgment, but other than that, this is a four-month investigation.  And as for the home video that you just saw, I have to agree with Jayne—this may be the only time.  I think it‘s more poignant than pertinent.

It is more prejudicial than probative.  What does it help in the case to show a picture of Laci in her bikini, you know, cooking?  She‘s a lovely young California girl.  It is heartbreaking to see that video...

ABRAMS:  Dean, what‘s the answer?

BLOOM:  ... but what evidence is it?

ABRAMS:  Dean, what evidence is it?

JOHNSON:  Well, you know, I don‘t know if it‘s all that probative, but it sure does humanize Laci Peterson.

ABRAMS:  Yes...

JOHNSON:  It brings home to this jury what they needed to realize and believe me from the atmosphere in the courtroom they know it.  This is a real murder case of a real person...

BLOOM:  I think they know that...

JOHNSON:  ... who really was murdered in a horrible way...

BLOOM:  ... they saw the autopsy.

(CROSSTALK)

WEINTRAUB:  Dean, what does that have to do with their burden of proof to prove a murder?  It is the prosecutor‘s burden, not the defense...

ABRAMS:  Yes, yes, yes, yes...

JOHNSON:  It‘s got...

WEINTRAUB:  ... to show rush to judgment...

JOHNSON:  It‘s got no more to do with their burden of proof than Geragos‘ laughing and humor...

ABRAMS:  Let me...

JOHNSON:  ... suggesting that these...

ABRAMS:  Let me answer the question...

JOHNSON:  ... bunch of fools...

ABRAMS:  Let me answer the question that I asked Lisa.  Lisa doesn‘t want to acknowledge, and I‘ll just say look, the bottom line is many of the commentators out there have been saying that this is a case falling apart, and I‘ll tell you, and I haven‘t been there the last week or two.  I‘ve been there, but not this last week or two, that a lot of people are saying this is a big comeback for the prosecution here at the end of the case.  We‘re going to continue talking about it in a moment.  Lisa, Dean, Jayne, Edie, stick around.

Coming up, the video of police searching the Peterson‘s home two months after Laci went missing.  What they found is up next.

And later, the inconsistencies in Scott‘s story, he‘s caught lying on tape again.  We‘ve got those lies on tape, again.

And that second American caught fighting with the Taliban, sent to Guantanamo.  Get this, he‘s set to be released—that‘s right—without ever being charged with anything.  What happened?

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, the prosecution in the Peterson case shows the jury video of police searching for clues inside the home only a few months after Laci disappeared.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  We‘re talking about those new video videotapes played in the Scott Peterson case, giving us another look inside the Peterson home.  This one from a police search February 2003, two months after Laci disappeared.  Scott Peterson, remember, told Diane Sawyer in a national TV interview that he couldn‘t bear to go into the nursery he and Laci had set up for their new baby.  That‘s not what investigators found.

NBC‘s Mark Mullen has more.

(BEGIN VIDEOTAPE)

MARK MULLEN, NBC NEWS CORRESPONDENT (voice-over):  Armed with a search warrant investigators walk silently through the Peterson‘s house moving from room-to-room for about an hour, looking for any evidence that might help the D.A.‘s case.  This police videotape was recorded in February, 2003, two months after a pregnant Laci Peterson disappeared and two months before her husband Scott was arrested.

They look at Scott‘s office, what notes and books he had.  They searched through the couple‘s bedroom and the contents of the closets.  They videotaped the kitchen where they find photographs of Laci with family and friends.  Still on a chalkboard nearby, “Merry Christmas” written it is believed by Laci before she disappeared Christmas Eve.

(on camera):  In court prosecutors appear to be building up to a witness who will likely explain to jurors what police found suspicious inside the Peterson home that day.

(voice-over):  One thing on the tape legal analyst Michael Cardoza found curious the nursery of the Peterson‘s unborn son.

VOICE OF MICHAEL CARDOZA, LEGAL ANALYST:  The jury in viewing the tape saw Conner‘s bedroom to be and it was filled with furniture from the warehouse.  Scott before had said he couldn‘t bear to go into the bedroom.  He locked it off.  Couldn‘t go in.

MULLEN:  Mark Mullen, NBC News, Los Angeles.

(END VIDEOTAPE)

ABRAMS:  Jayne Weintraub, another lie that doesn‘t mean anything, that one?

WEINTRAUB:  It‘s another lie, and we don‘t know the answer.  But that doesn‘t make him a killer and that doesn‘t make him guilty of murder.  I‘ll tell you what it does mean Dan.  Two months after the interview maybe he wasn‘t making as much money as he could have been in his own business and maybe he couldn‘t paying the rent and he had to move the furniture at that point because he was spending so much time looking for his wife.  We don‘t know, but you know what Dan?  It‘s not for me to rebut.  This is the state‘s case...

ABRAMS:  But see...

WEINTRAUB:  ... what does that show with regard to the murder?

ABRAMS:  No, wait, wait.  Jayne, let me—I don‘t want my viewers to be misled, all right, because people keep saying the defense hasn‘t even presented a case yet.  As you well know...

WEINTRAUB:  They don‘t have to.

ABRAMS:  That‘s right.  As you well know, in almost all of these cases the defense presents its case on cross-examination, by cross-examining the prosecution‘s witness.  So to suggest that sort of we don‘t know what the defense‘s case is going to be—they are going to call like four or five witnesses.

WEINTRAUB:  They are going to call many witnesses and we will have the answers.  But right now it‘s the state‘s problem and it‘s the prosecution‘s time to prove a first-degree murder or not and so far they have not proven it.  And showing me pictures of a nursery only evokes and emits emotion from me as a mom and as a woman.  To tell you the truth...

ABRAMS:  Dean...

WEINTRAUB:  ... as a person it does nothing to me as evaluating evidence...

(CROSSTALK)

BLOOM:  But it is direct proof of another Peterson lie.

JOHNSON:  Jayne...

ABRAMS:  Go ahead...

JOHNSON:  Jayne...

ABRAMS:  Lisa—let me let Lisa in.  Go ahead Lisa.

BLOOM:  It is direct proof of another Peterson lie.  He said on tape sniffing and sniffling into the camera I can‘t go into that room because—

I can‘t go in there until Conner comes back.  Well meanwhile, he‘s apparently unloaded the back of a U-Haul into that room.

It just shows what a cold, unfeeling guy he is.  On the other hand, there is stuff in this video helpful to the defense—Laci‘s make-up, Laci‘s robe, Laci‘s handwritten message on the board still up there.  Either Scott Peterson is an innocent guy and he‘s trying to keep memories of his wife around or he‘s trying to act like an innocent guy.  So it doesn‘t tell us a whole heck of a lot.

ABRAMS:  Go ahead Dean.

JOHNSON:  Jayne, I mean for once look at the forest instead of the trees.  Here‘s a guy who‘s simultaneously telling the police that he thinks his wife was abducted.  He‘s telling the world that the only thing on the planet that‘s important is that she comes home alive.  Well, if she comes home alive, what is she‘s going to find?  Conner‘s nursery has been turned into a storage room.  The real estate agent is calling to find out how to sell the house...

ABRAMS:  Furnished.

JOHNSON:  Her car is already gone and her hubby has dyed his hair orange, grown a beard, and moved to Mexico.  Welcome home, honey.

WEINTRAUB:  Dean...

(CROSSTALK)

ABRAMS:  Look at Dean.  Dean‘s coming out of nowhere with...

BLOOM:  Don‘t forget the pocket full of Viagra, Dean.

WEINTRAUB:  What is the date of the search and the video?  It‘s not simultaneous.  It‘s way after.  It‘s weeks after and maybe his life had changed.  Maybe...

JOHNSON:  Yes and...

WEINTRAUB:  ... there is an explanation, maybe not.

JOHNSON:  ... the day after...

WEINTRAUB:  What does it have to do with him murdering her?

JOHNSON:  The day after...

WEINTRAUB:  Maybe he didn‘t even love her...

(CROSSTALK)

JOHNSON:  The day after Laci went missing...

(CROSSTALK)

JOHNSON:  ... he said Laci‘s been abducted for her jewelry, and after that from then on he said the only thing that‘s important is finding Laci...

ABRAMS:  ... you know what...

(CROSSTALK)

ABRAMS:  ... and yet, we‘re still getting notes...

(CROSSTALK)

ABRAMS:  ... we‘re still getting notes from Justin Falconer, the former juror number five on the case who was dismissed from the case still presenting his theories about what really happened to Laci.  This guy will never believe that Scott Peterson had anything to do with this.  And the question of course is going to be does he have a comrade, at least one on that jury.

Everyone‘s going to stick around, if you would please, because coming up, we‘ve just got some new information about what‘s going on in that case.  They‘ve wrapped up for the weekend but it seems Mark Geragos has got something in store for the cross-examination next week, and it involves his own tapes.

And he was the second American caught fighting with the enemy in Afghanistan—excuse me—now, get this.  He‘s about to be released and sent to Saudi Arabia.  What happened?  A man once said to be so dangerous he had to be kept alone at Guantanamo Bay, coming up.

(COMMERCIAL BREAK)

(BEGIN AUDIOTAPE)

CRAIG GROGAN, DETECTIVE IN THE SCOTT PETERSON CASE:  OK, we have looked at everything that has come in and we are trying to eliminate all of the stuff that has come in and...

SCOTT PETERSON, ON TRIAL FOR MURDER:  I just hope you follow through right on all leads...

GROGAN:  Well, we‘re going to...

PETERSON:  I mean we‘re going to find her.

GROGAN:  I want...

(CROSSTALK)

GROGAN:  I want the door open between us.  If you want to end all of this nonsense, all you need to do is call me, all right.  We can sit down.  I will not treat you badly.  You can tell me what happened.  We can get Laci back where she needs to be.

PETERSON:  I knew it.

(END AUDIOTAPE)

ABRAMS:  Lead Detective Craig Grogan trying to get Peterson to confess a month after Laci had disappeared.  Court has just wrapped up for the week.  Let‘s go back to KCRA reporter Edie Lambert.  So, it sounds like they‘ve got some sort of tape that the defense wants to present?

LAMBERT:  That‘s my understanding that Mark Geragos has a tape that he wants to play for the jury on Monday, but first the judge will have to screen it in chambers, so first order of business, they‘re coming in early.  They‘ll meet behind closed doors, take a look at that tape, and then presumably the jury will see it when they come in at 9:00.

Talking to Dean Johnson during the break, of course, about the content of what the tape could be.  It‘s got to be related to what was asked on direct examination.  Geragos can‘t just bring in entirely new evidence on cross-examination, but the exact content we don‘t know.

ABRAMS:  Dean, any sense of what you think it might have?

JOHNSON:  I haven‘t got a clue unless he‘s got something that Grogan says on—in a press conference or something like that that might impeach part of his direct testimony.  I guess we‘ll just have to wait and see how this cliffhanger plays out.

ABRAMS:  All right, we‘ve only got a few minutes left, but we‘re joined now by Robert Dunn, also a criminal defense attorney.  Robert, you know Jayne Weintraub who is very outspoken on many of these cases.  You know, she seems to be suggesting that, you know, I mean, she‘s not going to admit that she said this, but she‘s not defending how the case is going as well anymore for the defense.  That‘s not grammatically correct, but you know what I‘m saying.  That she used to be saying things are going well for the defense, now a lot of people are saying (UNINTELLIGIBLE) maybe this prosecution is making some hay here.  What do you think? 

ROBERT DUNN, CRIMINAL DEFENSE ATTORNEY:  Well I mean the prosecution is attempting at this point to try to connect the dots and to pull the case back into focus for the jury.  But to be realistic, this case has been going on for a very long period of time.  And in the early stages, the prosecution faltered terribly.

And what can often happen in a lengthy trial is that you can lose the jury such that even if you are at some later point...

ABRAMS:  Yes.

DUNN:  ... putting in evidence that is strong...

ABRAMS:  Yes.

DUNN:  ... or does connect the dots for your case, at that point the jury is losing it.  Critical evidence with regard to the date of the death of the fetus, even with regard to that Geragos was still able to bring in some question or shadow of doubt with regard to the determinations made by the doctor in as much as he had two dates that could have been the date of death when we knew that the fetus was alive and well...

ABRAMS:  We‘ll get to the issue of the fetus in a minute, but let me talk to you very quickly about this issue of Scott fleeing.  If we can put up some of the pictures that we‘ve got, some of the photos of Scott Peterson and sort of what he looked like and what he was wearing...

WEINTRAUB:  ... when he was being stalked by the media a few blocks from his parents‘ house, not in Mexico?

ABRAMS:  Well you know not in—no one is suggesting he was in Mexico...

WEINTRAUB:  ... on his way—oh, a lot of people have suggested that he was fleeing...

ABRAMS:  ... fleeing, right...

BLOOM:  That‘s why he had a water purifier with him.  You don‘t need that in San Diego.  You can drink the water there last I heard.

WEINTRAUB:  Not necessarily.  I don‘t even like to drink it in New York.  No offense to New York...

(CROSSTALK)

BLOOM:  Offense taken Jayne...

ABRAMS:  Let me go to number two here.  Mark Geragos in his opening statement said that Scott Peterson—he said he would be the first guy to flee to Mexico by heading north.  You know, Dean, that seems to be to me a pretty good argument for the defense, which is you‘re saying he‘s fleeing and yet he‘s going the other way?

JOHNSON:  Well, he was going north briefly but by the time he was arrested after this 160-mile surveillance, he had turned around and headed south.  He was at the Torrey Pines Golf Course in San Diego, but look at what he had in his car—camping equipment, climbing equipment, camp stove, water purifier, Viagra, $10,000 in cash, multiple changes in clothes, doesn‘t sound like a couple of days of R&R in Cabo San Lucas to me.

WEINTRAUB:  He was being followed and he knew it.  He was even making faces at the cops along the way, you know that Dean...

BLOOM:  He was flipping them the bird.  That‘s what he was doing...

WEINTRAUB:  He wasn‘t running...

JOHNSON:  Oh yes...

UNIDENTIFIED MALE:  ... flipping them the bird...

JOHNSON:  ... now you‘re fighting with the defense because the defense would say he wasn‘t—he didn‘t think he was being followed by the cops at all.

BLOOM:  But Jayne...

JOHNSON:  He thought it was the press.

BLOOM:  ... Jayne, keep in mind what was going on, the context.  He wasn‘t just playing cat and mouse with the cops.  This is four days after the remains are found.  The whole world is speculating is it Laci and Conner.  It‘s Scott Peterson‘s chance to step up, be a man, go up there and identify the remains and instead he dyes his hair, grabs a bunch of cash and heads south.  It‘s particularly repugnant in light of that context.

ABRAMS:  All right...

WEINTRAUB:  Repugnancy is not an element...

(CROSSTALK)

WEINTRAUB:  ... of the offense.

ABRAMS:  Let me take a quick break here...

WEINTRAUB:  Show me something that shows he‘s a killer or that he murdered her.  Show me one piece of evidence...

(CROSSTALK)

WEINTRAUB:  ... or one witness...

ABRAMS:  Where the body was...

(CROSSTALK)

ABRAMS:  All right...

JOHNSON:  One piece of evidence...

ABRAMS:  ... “A”, where the body was found, and “B”, what‘s coming up in our next block, which is going to be the lies that Scott Peterson told.

I got to thank Lisa Bloom.  The rest of the team is going to be back in a moment.  More of Scott‘s lies for the jury to consider on tape.  We‘ve got them for you to hear.

Plus, the second American, remember, there was another one before him, caught fighting with the Taliban is about to be set free.  That‘s right, set free.  No cuffs.  No nothing.  What happened?

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Scott Peterson lies to Amber Frey, lies to his wife, lies to police, lies to TV interviewers.  We‘ve got the tapes, but first the headlines.

(NEWS BREAK)

(BEGIN VIDEO CLIP)

DIANE SAWYER, CO-ANCHOR, “GOOD MORNING AMERICA”:  Tell me about the nursery. 

PETERSON:  Can‘t go in there.  That door is closed until there‘s someone to put in there, but it‘s ready.

(END VIDEO CLIP)

ABRAMS:  Nursery is ready.  Says he couldn‘t go in there.  But when the police searched his house on, you know, about two and a half, three weeks after that interview, about a month after his wife went missing or two months—a month and a half, they found that he had gone into his son‘s nursery.  Apparently he needed extra storage space.

This week the jurors heard Peterson‘s lies caught on tape, lies he

told to police, reporters, Amber Frey during—remember this is important

·         during the period where they are searching for his wife who he claims that they are going to find.  Let me play you one more comparison, all right.  And yes, we played a couple of the other ones on yesterday‘s show.

Here‘s one—and again, maybe some of them are little, but it just seems that they kind of add up.  Scott Peterson talking about whether he opened up Laci‘s Christmas presents. 

(BEGIN AUDIOTAPE)

PETERSON:  Well I had the guts to open up Christmas presents last night.

MILIGI:  Yes, boy.

PETERSON:  Laci got me a big ole table saw.

MILIGI:  Really?

PETERSON:  Yes.

MILIGI:  Well, that‘s cool.  I need one of those.

PETERSON:  I lost it for a couple of hours.  It‘s the weirdest thing.

(END AUDIOTAPE)

ABRAMS:  OK, so he says that he opened up the presents.  That‘s on January 11.  January 30, here he is talking to our friend, Ted Rollins (ph). 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  You have some Christmas presents to open still? 

Have you kept those?  Did you...

PETERSON:  Yes.  No, they‘re in the corner.

(END VIDEO CLIP)

ABRAMS:  I don‘t know.  “My Take”—physical evidence might not be enough to convince a jury beyond a reasonable doubt, but looking only at the physical evidence is to ignore the lies.  Each one can be explained, but together it‘s pretty compelling.

Robert Dunn, I mean you know the lies, do we just ignore the lies?

DUNN:  Well, I don‘t know if we just ignore the lies, but one of the lies as you referred to it, on the last tape that you just showed, what—does that show any culpability for him to have opened the presents or not opened the presents...

ABRAMS:  No.

DUNN:  So I don‘t see what would be...

ABRAMS:  But what about...

(CROSSTALK)

ABRAMS:  ... what about all of them together?

(CROSSTALK)

ABRAMS:  What about all of them together?  I mean the fact is it‘s not just about opening the presents.  We played—you know, the fact is he‘s lying to Diane Sawyer about whether he had told the police about Amber Frey.

WEINTRAUB:  Dan...

ABRAMS:  He‘s lying to Laci‘s mother about where he is at certain times, caught on tape.  He‘s—and it just seems that it‘s again and again.  He says at one time he went golfing...

(CROSSTALK)

ABRAMS:  ... another time he went fishing.  All doesn‘t matter, right?

DUNN:  Well I wouldn‘t say that it all doesn‘t matter, particularly if he is to testify...

ABRAMS:  He won‘t testify...

DUNN:  Well exactly.

ABRAMS:  Right.

DUNN:  If he were to testify...

ABRAMS:  He‘s not testifying...

DUNN:  ... then that would make...

UNIDENTIFIED MALE:  (UNINTELLIGIBLE)

DUNN:  ... that would open up a world of trouble for him with regard to these inconsistent statements...

WEINTRAUB:  Dan.

DUNN:  But looking at these inconsistent statements alone or even in total, they still don‘t add up to beyond a reasonable doubt. 

ABRAMS:  Jayne, go ahead...

DUNN:  ... adds up to...

WEINTRAUB:  Dan...

DUNN:  ... is that he‘s a bad guy...

JOHNSON:  There‘s no piece of evidence...

ABRAMS:  Jayne...

(CROSSTALK)

ABRAMS:  Let me let Jayne in.  Go ahead Jayne.

WEINTRAUB:  Dan, this isn‘t a perjury case otherwise he‘d be guilty and this isn‘t an adultery case or he‘d be guilty.  Wearing—not wearing a wedding ring that‘s evidence of being a murderer?  Come on.  He is—he hasn‘t been proven to be a killer.  He is not telling the truth about Amber Frey.  Gees, a married man having an affair and he had them before...

JOHNSON:  Oh, OK...

DUNN:  Hey Jayne, Dan, as a matter of fact all of this evidence...

JOHNSON:  OK, Jayne, you want evidence of being a murderer?

ABRAMS:  Go ahead...

(CROSSTALK)

ABRAMS:  Go ahead Dean...

JOHNSON:  ... being a murderer...

ABRAMS:  Dean...

(CROSSTALK)

ABRAMS:  Dean...

(CROSSTALK)

ABRAMS:  Go ahead Dean, 30 seconds.  Let Dean lay it out.

(CROSSTALK)

ABRAMS:  Go ahead.

JOHNSON:  Look at the pattern here.  This guy will not shut up.  I mean he‘s calling everybody.  He‘s talking to everybody until the bodies are found.  And then he won‘t talk to anybody.  Four days...

WEINTRAUB:  Then he had a lawyer...

JOHNSON:  ... between the bodies being found and the arrest.  This guy doesn‘t even make a phone call to the police department to find out if it‘s his wife and kid.

WEINTRAUB:  Stop shifting the burden, Dean.

JOHNSON:  He‘s on his way to southern California.

ABRAMS:  All right.  Let me bring up another issue...

(CROSSTALK)

ABRAMS:  ... here because we‘re almost out of time  -- pull of number three here and this is a question about using the past tense.  And I want to find out if this is significant at all, all right.  Here he is talking to—this is lead Detective Grogan on tape.  Let‘s listen.  Oh, it‘s a full screen.  I‘m sorry.

When you watched “Good Morning America” video at a briefing at the police department, anything you learned or heard during the course of that interview that was important to you?  It‘s the prosecutor.

Grogan:  Yes.

Tell us what it was.

Well, in watching that interview it occurred that he spoke in the past tense on one occasion when talking about Laci and on one occasion when he was talking about Conner.

Then, of course, there was the audiotape and here—now let‘s listen to that one.

(BEGIN VIDEO CLIP)

SAWYER:  What kind of marriage was it?

PETERSON:  God, the first word that comes to mind is glorious.  I mean we took care of each other very well.  She was amazing—is amazing.

(END VIDEO CLIP)

ABRAMS:  So Robert, are we being unfair to Scott Peterson by focusing on the “was, is”?

DUNN:  Yes, I think so and I think that what can happen here with regard to arguments and summation to be made to the jury is to show how this is really a smear campaign that they went roaming through, picking through every conversation that he ever had, any subject matter trying to find the slightest bit of inconsistency to try to...

(CROSSTALK)

DUNN:  ... smear his character because they don‘t have the goods in terms of the evidence to prove that he‘s guilty of the crime.

ABRAMS:  Dean, final word.  Go ahead.

JOHNSON:  No, no, Robert, you‘re—no you‘re misunderstanding.  This all goes back to the rush to judgment defense.  When you raise that then you get to talk about the officer‘s state of mind and that means he gets to talk about a lot of other things that otherwise wouldn‘t be admissible.  Like the use of the past tense, the fact that he refers to the baby as Laci‘s baby, the fact that usually a murder like this is somebody who is intimate with the victim.  All of that stuff normally would not be admissible, probably can‘t even be argued on summation.  But surely the jury hears it and it‘s not lost on them.

ABRAMS:  All right.  This case is getting close and that means it‘s getting interesting.

Robert Dunn, Dean Johnson, Jayne Weintraub, Edie Lambert, thanks a lot.

Coming up, the Justice Department had warned about the dangers he posed.  Now the second American Taliban, as he was known, is being released.  He‘s being released.  What happened?  Did they get it wrong or is this a case where the courts are to blame?

And I said it‘s not fair to compare the CBS document scandal to the reporting much of the press did before the Iraq war.  Many of you take me on, on that one.  Coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

DONALD RUMSFELD, SECRETARY OF DEFENSE:  It has been generally accepted, I‘m told by lawyers, that people who are captured on battlefields and who you have been fighting, and that is certainly the case with that individual, a country has every right to keep off of the battlefield and detain so that they do not go right back out and engage in battle.

(END VIDEO CLIP)

ABRAMS:  Secretary of Defense Donald Rumsfeld in 2002 talking about the case of the second American Taliban, as he became known.  Yaser Esam Hamdi, a U.S. citizen who will soon be leaving the U.S. a free man.  No charges.  What happened?  And what was the government‘s case against Hamdi?

Well, he traveled to Afghanistan, was affiliated with a Taliban military group, carrying an AK-47 when his group surrendered to American allies, the Northern Alliance.  Hamdi is 23 years old.  After he was captured late in 2001, Hamdi was sent to the detention center at Guantanamo Bay.  He was held until he chimed up and said hey, I‘m a U.S. citizen.

They had to wait until it could be confirmed.  He was born in Louisiana.  He got a ride to the mainland from Guantanamo, was sent to the Naval Brigs in South Carolina, then in Virginia, held in solitary, not allowed to see an attorney until the U.S. Supreme Court stepped in.  And writing for the court Justice Sandra Day O‘Connor wrote—quote—

“Although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker.”

And faced with that, the Department of Justice decided they essentially couldn‘t hold him anymore, started negotiations to have him released, deported.  What did the U.S. get, a promise that Hamdi won‘t come back and have other travel restrictions.  That‘s it.  Now he‘s going back to Saudi Arabia where he‘s also a citizen, where apparently he won‘t face charges of any kind. 

“My Take”—sure he‘s getting released like many others captured in the war.  The fact that he‘s an American makes no difference for that purpose.  But it‘s clear the U.S. Supreme Court, I think, had no choice but to demand that he see a lawyer.  The fact that he was released just because he was allowed to see a lawyer tells me they must not have had a case against him.

Check in with our guests Frank Dunham, public defender and Yaser Hamdi‘s attorney and Viet Dinh, a former assistant attorney general at the Justice Department and a law professor at Georgetown University.

Professor Dinh, you know, doesn‘t this tell us that there really just was no case against him?

VIET DINH, FORMER ASSISTANT ATTORNEY GENERAL:  Not really, Dan because it only says that while he may still be a threat against society, he is no longer continuing intelligence value to us and so we should return him to the authorities who is best able to handle him, that is his country of citizenship, which is Saudi Arabia.  It is only a fatuity of birth here that he was born in Louisiana.  He has lived in Saudi Arabia since he was 3 years old.  For all intents and purposes he should be treated like a Saudi Arabian like many other Saudi Arabians we have to return to Saudi Arabia...

ABRAMS:  And they say they won‘t charge him in Saudi Arabia...

DINH:  And that is a decision of the Saudi Arabians to handle according to their own likes.  I must note that the Department of Defense agreed to give access to Frank in order to see Yaser Hamdi even before the Supreme Court handed down its decision.  I actually think that is commendable that the Department of Defense here agreed not to hold Yaser Hamdi just to prove a point, but rather to treat him...

ABRAMS:  Well, they knew what was coming...

DINH:  ... as you would treat any other person.

ABRAMS:  They knew what was coming, come on, right...

DINH:  Well, the requirements that the Supreme Court set out was quite lax and quite easy to meet.  He did not have to have a hearing before a judge.  It could be before an executive tribunal.

ABRAMS:  Yes.

DINH:  He—the presumption could be flipped in favor of the government and also evidence—hearsay evidence could be accepted.  I think fairly minimal processes and—so you‘ve got to hand it to the government to act responsibly...

ABRAMS:  All right...

DINH:  ... not to take anything away from Frank Dunham here...

(CROSSTALK)

DINH:  ... I think that he‘s done a great job representing Yaser Hamdi.

ABRAMS:  Let me ask him.  Mr. Dunham, what do you think happened here?

FRANK DUNHAM, YASER HAMDI‘S ATTORNEY:  I think the government came to its senses.  I mean my whole problem throughout the representation was to try to get the higher-level government officials to talk to the people that actually had responsibility for Hamdi‘s detention.  To see if they got to know this kid they would know he was not a terrorist, not a threat and that his story that he was not an enemy combatant was probably true.

I mean you have to understand here that the United States was basing all of its knowledge on the Northern Alliance.  Now, what is the Northern Alliance?  They are drug dealers.  They‘re bounty hunters.  They‘ll turn anybody over for a sack of money, and I think we bought a bad bag of goods when we believed that Hamdi was as bad as everybody said he was cracked up to be.

(CROSSTALK)

DUNHAM:  Now, I agree with Mr. Dinh that the government did act responsibly here and in very good faith in working towards this man‘s release. 

ABRAMS:  But you know, Professor Dinh, I think many out there are going to say you know here they captured this guy fighting on the battlefield.  He‘s sent to Guantanamo, which is supposed to be reserved for the worst of the worst.  The only reason he sort of gets a trip to the mainland at all is because he‘s an American.  You know, is—should this make us have more questions about who is being held if this guy can just go home to Saudi Arabia and nothing happens to him?

DINH:  And there is a process and procedure in place right now that the Pentagon has done on its own, accorded order to process these persons through to make sure that they are not a continuing threat or—and if they are do they have continuing intelligence value.  I think that two years out this process is starting to work, and it is commendable that they do so for the rest of the people.

ABRAMS:  He was held for a long time, though.

DINH:  And that is because he was of continuing intelligence value to the investigation.  It need not be a high-level person in order...

ABRAMS:  Yes.

DINH:  ... to give intelligence value because anybody who has gone through al Qaeda training we can use in order to determine the pattern of the training of future attacks.

ABRAMS:  Did he go to—Mr. Dunham, did he go to al Qaeda training?

DUNHAM:  He didn‘t have al Qaeda training, and of course one of the problems here is that Sandra Day O‘Connor clearly said in her opinion you can‘t hold somebody for purposes of intelligence gathering.  That‘s not a permissible purpose.  Even when you heard Mr. Rumsfeld...

ABRAMS:  Not an American, you mean?

DUNHAM:  Not—you can‘t hold an American...

ABRAMS:  Right.

DUNHAM:  ... for purposes of gathering intelligence.  Even when Mr.  Rumsfeld—Secretary Rumsfeld was talking earlier about holding people you capture on the battlefield, well you don‘t hold them for intelligence gathering.  That‘s not permissible.  You can hold them from rejoining the fight, exactly like he said.

Now the other point is Hamdi was not captured on a battlefield. 

People keep saying he was captured on a battlefield.  That never happened.  You read the declaration that Michael Mobbs filed on behalf of the government in this case.  He never says Hamdi was captured on a battlefield.  Somehow Secretary Rumsfeld said that and that became the fact for the rest of the case.

ABRAMS:  I‘ve got to wrap it up.  Frank Dunham and Viet Dinh, thanks a lot.  Appreciate it.

Coming up, a British hostage pleads for his life asking Prime Minister Tony Blair to do anything it takes to free him.  His family is learning one of the toughest lessons of all on the war on terror.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a hostage‘s family hears that there is a plea from their brother, their son.  The question is, can the government act on that?  Can they try and give in to these—quote—“demands”?  It‘s coming up.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why many in Britain are giving al Qaeda terrorists in Iraq exactly what they want, power and influence by acting as if their—quote—“demands” are real.  Ken Bigley is one of three Westerners kidnapped last Thursday, the other two, Americans.  Jack Hensley and Eugene Armstrong were viciously beheaded by the cowards.  They then had Bigley make a videotaped plea to Prime Minister Tony Blair knowing that everyone expects that Bigley will be next.

From the terrorist‘s perspective it was pretty clever and unfortunately, it seems to be working.  The terrorists had claimed they had a demand.  That all the Iraqi women be released from certain prisons in Iraq.  The problem, there were no women in those prisons.  Of course, these are not really demands at all.

As it turns out, two of Saddam senior advisers including Rihab Rashid Taha, Dr. Germ, as she was known, were being held at another location.  Well, the Iraqis had initially said they would release one of them, the Iraqi government.  They quickly shifted course after realizing it would be seen as caving to the terrorists.

Now some say it was U.S. pressure.  Either way, there‘s no question it was the right decision.  Anything else would only embolden the terrorists to do it again and again.  They will kill anyway.  But no many in Britain, including Bigley‘s family are putting the heat on Tony Blair saying they will hold Blair responsible if Bigley is killed.

Exactly as the terrorists would have hoped, putting the blame on Blair or Bush instead of on the terrorists‘ themselves.  Now it‘s hard to blame the family.  They want anything and everything possible done to save Ken Bigley.  They don‘t deserve any of this.  But Bigley‘s brother has said—quote—“it‘s sickening to hear Blair say he won‘t deal with terrorists.”  What Phil Bigley and others need to realize is that these are not kidnappers with a mission, with a tangible goal unless you consider the demise of the Western world a cause.

9/11 was a lesson not to be forgotten.  The hijackers told the passengers, as long as you stay in the back of the plane and keep quiet, you won‘t get hurt.  It‘s generally bad policy to negotiate with terrorists.  Negotiating with these terrorists in particular, I‘m afraid, will not save Ken Bigley and may lead to more families suffering the way that the Bigleys are today.

I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night we debated a statement made by the dean of Northwestern University‘s Medill School of Journalism on this program Monday.  He suggested that maybe we‘re being too hard on CBS given that “The Washington Post” and “The New York Times” both admitted major problems with their coverage of Iraq‘s alleged weapons of mass destruction in the months before the war in Iraq.

I didn‘t—I said I didn‘t think it was a fair comparison because in the CBS case, they had someone knocking on their door who they should have known was partisan.  That it was a lot harder to separate fact from advocacy when it came to Iraq.

Lou Ann Spear in Marshall, Virginia.  “I disagree with you over the issue of which is more serious.  One error led to the loss of over 1,000 lives.  Dan Rather‘s mistake has not led to the loss of any lives as a result of his erroneous report.”

So, now it‘s the media‘s fault that soldiers were killed in Iraq as well?  I mean yes, the media could have done a much better job leading up to the war, but I‘ll bet it would not have changed the outcome.

A viewer said he was concerned for his safety so he goes by “Golf Dad” writes, “I personally think that the Iraq lies are much worse, but at least you have the courage to raise the issue.”

Then to the people on both sides who are furious we raised the issue.  Joe Parente, “I‘m insulted and incensed by the topic on Wednesday night‘s show.  While the CBS memo story was possibly a lack of journalistic integrity, comparing it in any way to the failure of the entire news media including yourselves to investigate the weapons of mass destruction lies by the administration, which caused U.S. soldiers to die is ridiculous.”

And yet, Dan F. thinks it shows our bias on the other side.  “The fact that you‘re comparing the Dan Rather story to the reporting of stories related to Iraq and WMDs prior to the war is beyond belief.  It was very difficult to find truth in Iraq about anything.”

Also last night your e-mails on my “Closing Argument”.  The media should stop tiptoeing around the word terrorists and start calling these people who target civilians terrorists instead of the more heroic and politically correct terms like militant, insurgent, or rebel.

Barton Griesenauer in Indianapolis, Indiana, “I‘m not agreeing with their cause either.  All I ask is to see things from their point of view.”

I  will not Barton.  I couldn‘t care less about their point of view.

Harry Halikias in Bellmore, New York, “How can you claim to be an objective journalist and then give an opinion to the public on what terrorists should be called?  You should come on tomorrow and tell everyone that you are not objective.”

Harry, I guess you don‘t watch the show very often because I give my opinion on just about everything.

Finally, Tuesday night one of my guests, Lucy Dalglish, who is from North Dakota made a joke.  We were discussing the CBS memos and the fact they were faxed from Texas.  She said—quote—“there is probably only one Kinko‘s in Texas.”

Emily Coulter in Texarkana, Texas, “I called the Kinko‘s customer service number and asked the representative if he could tell me how many Kinko‘s there are in Texas where I from and in North Dakota where Ms.  Dalglish is from.  I am happy to say that Texas has 81 Kinko‘s and North Dakota has a grand total of two.”

I look forward to those e-mails from North Dakota now.

Send your e-mails to abramsreport—one word -- @msnbc.com.  Please include your name and where you‘re writing from.  We go through them at the end of every show.

Coming up next, “HARDBALL” with Chris Matthews.  Thanks for watching. 

See you tomorrow.

END   

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