updated 10/12/2004 10:34:12 AM ET 2004-10-12T14:34:12

Guest: Andrew Jay Schwartzman, E. Mark Braden, Jeralyn Merritt, Mercedes Colwin, Dean Johnson, Matt Couloute, David Cornwell

DAN ABRAMS, HOST:  Coming up, just 22 days before the election, the owner of one of the largest TV station groups in the country prepares to air portions of a documentary attacking John Kerry. 

It‘s about Kerry‘s anti-war activating and Sinclair Broadcasting Group says “it‘s news.”  Democrats say it‘s just an excuse to bash Kerry.  Is there any law or regulation that prevents them from airing it? 

Plus, it‘s show time for Scott Peterson‘s attorney Mark Geragos, after more than four months and 174 prosecution witnesses, the defense gets its chance.  We‘ll preview what to expect. 

And Pat Tillman gave up a lucrative NFL career to fight terrorists in Afghanistan and then died for his country.  Now one of his former teammates could be fined thousands of dollars by the NFL for honoring him on the playing field. 

The program about justice starts now. 

Hi, everyone.  First up on the docket—what if I told you that 62 television stations are being asked by their corporate owner to preempt their prime-time programming, two weeks before the election, to run Michael Moore‘s Bush bashing documentary, “Fahrenheit 9/11?”  If you‘re a Bush supporter, you‘d be outraged and you might wonder if federal election law or broadcast regulations allow that.  Those questions are now real, but raised on the other side.  Raised after the “Los Angeles Times” reported that Sinclair Broadcast Group had, quote, “ordered” its station to run a documentary called “Stolen Honor, Wounds that Never Heal.”  The documentary accuses Senator Kerry of betraying U.S. POW‘s held in Vietnam with the anti-war activism that followed his Vietnam service.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Enemy propagandas have found a new and willing accomplice.  For some prisoners, the consequences were swift and deeply personal.

(END VIDEO CLIP)

ABRAMS:  A Sinclair spokesman, now saying, quote, “The documentary is just part of a special news event that we‘re putting together, we‘ve invited one person to be a guest.  That‘s Senator John Kerry.”

Senator Kerry is not expected to accept the offer.  And Democratic National Committee says it plans to file a complaint with the Federal Election Commission, saying airing “Stolen Honor” amounts to an illegal contribution to the Bush campaign, and 18 democratic senators have sent a letter to the Federal Communications Commission, separate complaint, asking for an investigation saying, quote, “To allow broadcasting company to air such a blatantly partisan attack in lieu of regular programming and classify that attack as ‘news programming,‘ as has been suggested, would violate the spirit, and we think the text, of current law and regulation.”

My take:  It is outrageous for any broadcast stations to air a documentary bashing either candidate right now, even if they cloak it as a news hour.  Talk about media bias.  But, as a legal matter, I don‘t know that the Kerry team has any legal recourse.  But that‘s my guess. 

Andrew Jay Schwartzman is president and CEO of Media Access Project and a communications attorney.  And E. Mark Braden, an election attorney and former general council the Republican National Committee.  We also asked the Sinclair Broadcast Group for a representative, they did not respond. 

All right, Mr. Schwartzman, on either of those issues, going to the Federal Elections Commission or Federal Communications Commission, do they have—do the democrats have any gripe here? 

ANDREW JAY SCHWARTZMAN, PRES. & CEO MEDIA ACCESS PROJECT:  Well, first of all, I don‘t want to be seen or understood as advocating that any program should not be run.  I‘m fine with running anything and the more aggressive the better.  The problem here is we‘re dealing with a company, Sinclair, that has a long standing and clear partisan objective.  It‘s not adhering to its responsibilities of a broadcaster gave giving a fair shake to both sides.  I‘m perfectly happy with them running this programming, but they ought to be running programming that really gives Kerry an opportunity to present his viewpoint, not a phony forum or something like that, which they will also control. 

Now, as far as whether the law addresses it or not, that‘s a much more complicated issue from the communications law standpoint.  There was something called the Personal Attack Rule, that‘s something I fought in court about with your father, Dan.  But that was thrown out on technical grounds by the court of appeals in Washington four years ago.  So, while Kerry, I think, would have had a very valid complaint under that, that was the resource that the communications act contemplated and we‘re going to be fighting to get that Personal Attack Rule back and that would be the recourse, there.  There are a couple of small angles and some ways that might come in, but fundamentally, no. 

ABRAMS:  Mark Braden, here‘s what the FCC rules state:  “If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates.”  You hear Mr. Schwartzman saying that basically this offer to allow John Kerry to appear is, you know, sort of phony. 

E. MARK BRADEN, FMR. R.N.C. COUNSEL:  I don‘t think it‘s—I don‘t have any reason to believe it‘s phony.  I don‘t know whether it‘s fair or not.  But the bottom line is that there is no regulation that would prohibit a broadcast facility from deciding what is news in their viewpoint.  So, I really don‘t—this complaint that has been filed by the democratic senators and the complaint that‘s been filed by the DNC are, in fact, just publicity stunts.  No one actually believes they have any legal merit. 

ABRAMS:  What about the...

BRADEN:  They don‘t.

ABRAMS:  What about the election—what about the Election

Commission, number—this is a question of whether this is essentially a

contribution to Bush‘s campaign.  “...a ‘contribution‘ is defined as a

gift, subscription, loan, advance or anything of value made by any purpose

·         made by any person for the purpose of influencing any election for federal office.”

BRADEN:  And the answer to that there is there‘s a very specific exemption in the federal regulations that permits a broadcast facility, a news organization, to do what basically it wants to, without being considered a contribution.  If that didn‘t exist, then we would see a complaint filed against CBS for their broadcast regarding the notion of the false documents on the National Guard.  We—do we really want the government investigating news organizations, trying to decide what the motive is behind their various broadcast?  I think that‘s ridiculous. 

ABRAMS:  And with regard to that, here‘s what the Sinclair Broadcasting Group has said.  And I‘m going to let you respond to this, Mr.  Schwartzman. 

“Would they suggest that our reporting a car bomb in Iraq is an in-kind contribution to the Kerry campaign?  Would they suggest that our reporting on job losses is an in-kind contribution to the Kerry campaign?  It‘s the news.  It‘s what it is.  We‘re reporting the news.”

That‘s according to Mark Hyman from the Sinclair Broadcasting Group. 

SCHWARTZMAN:  I‘m going to not duck that question, but tell you I‘m not an election law expert, and I understand that there is and ought to be a very wide exemption and this may or may not fit within that exemption.  But I want to stress for you, Dan, that you‘re barking up the tree in terms of your understanding of the FCC law.  The equal time law is not what we‘re fighting about here because Kerry appears in this documentary, Bush doesn‘t.  So, Kerry does not get an equal time...

ABRAMS:  Right.  You have to invite Bush on for it to be...

SCHWARTZMAN:  You have to invite Bush on, that‘s right. 

ABRAMS:  Right. 

SCHWARTZMAN:  Now, as far as if, it doesn‘t really matter, but as to the question of whether it‘s news or not from the standpoint of the FCC, it clearly is not a news program.  The FCC exemptions for news programs and documentary programs, which are both in the law, are for bona fide news programs, which this really is not, and for bona fide documentaries.  But the documentary exemption applies only to incidental appearances by candidates.  Congress clearly intended that a documentary, which focuses on a candidate, would not be except from the equal time laws. 

So Mr. Braden is just flat out wrong in his—you know, and may be unfamiliar with the statute in what he‘s saying because he is off base.  Documentaries are specifically covered under the law and this is that.  Now, as to the federal election law, that‘s a much more subtle question and I think we need to be aware of the need to give news media a broad‘s exemption. 

ABRAMS:  Right. 

SCHWARTZMAN:  Fundamentally, though, you‘re dealing with a broadcaster that is ignoring his responsibilities to the public.  Put aside whichever legal responsibility you‘re going to attach to it, this is a company that has been allowed to own 62 stations.  No company should own that many stations.  It‘s a company which has supported Bush, it‘s gotten deregulation in exchange and now it‘s returning the favor.

ABRAMS:  All right, Mr. Braden, a lot to respond to.  Go ahead.

BRADEN:  A lot to respond to.  The notion that somehow we should have the government decide what‘s bona fide news and what it isn‘t bona fide news, I think is a truly frightening thought.  The bottom line is, unless I missed the promos on PBS, they‘re going to run a documentary in a couple of weeks profiling both of the candidates.  Is that going to be a violation of some corporate regulation, going to be a violation of FCC provision?  I don‘t think so we‘ve repealed the first amendment.  If a news station decides that they want to run a documentary, broadcast facility wants to run a documentary, then it‘s within their discretion to do that.  This wasn‘t produced by the Republican Party.  I wasn‘t produced by the Bush campaign. 

So, I see absolutely no reason to believe there‘s going to be any problems with their license under the FCC and most certainly is not going be a violation of the Federal Election Campaign Act. 

ABRAMS:  And, Mr. Schwartzman, it is tough to define news, isn‘t it? 

I mean...

SCHWARTZMAN:  No, it‘s easy to define news because the term is bona fide newscast and this is not a bona fide newscast.  But, I want to stress again, as I said at the outset, Mr. Braden is saying that I don‘t want this program to run.  It‘s fine with me to run that program.  What‘s not fine with me is that this is a licensee that‘s abusing its privilege and is attempting to advance the candidacy of one candidate by not giving a fair shake to the other. 

ABRAMS:  All right, Mr. Braden, you get the final word.

BRADEN:  Well, the bottom line is, I‘ve heard the same thing—same complaints about CBS‘ recent broadcast.  Are we going to pull their licenses? 

ABRAMS:  Andrew Jay Schwartzman, E. Mark Braden, thanks a lot. 

Appreciate it. 

BRADEN:  Thank you. 

ABRAMS:  Coming up: Scott Peterson‘s attorneys get ready to present his case.  So far, the defense floating a lot of theories about Laci‘s murder, from vagrants kidnapping her for her baby to a case of mistaken identity.  We preview Peterson‘s defense. 

And an NFL star turned Army Ranger, became a hero well before he died on the battlefield in Afghanistan in April.  But now a former teammate who honored Pat Tillman during a game may get fined? 

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:  As Scott Peterson‘s team prepares to present its case tomorrow, spinmiesters continue to suggest Peterson might actually take the stand.  I‘ll tell you why it‘s just spin.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  Four months ago, Defense Attorney Mark Geragos told jurors his client, Scott Peterson is, quote, “stone-cold innocent.”  Since then, he‘s tried to rebut all evidence prosecutors say proves Peterson killed his pregnant wife.  Well, tomorrow it‘s show time.  Geragos gets to call the shots and put on his own case.  We‘re going to break down just what the defense case will actually be with our legal team.  But first, here‘s MSNBC‘s Jennifer London. 

(BEGIN VIDEOTAPE)

SUSAN CAUDILLO, SCOTT PETERSON‘S SISTER:  It‘s been a very long four months, and they haven‘t proven a thing and we‘re ready for Tuesday. 

JENNIFER LONDON, MSNBC CORRESPONDENT (voice-over):  A vote of confidence from Scott Peterson‘s sister as the defense prepares to present its case. 

MICHAEL CARDOZA, CRIMINAL DEFENSE ATTORNEY:  The defense has no burden of proof, but in a case like this, they have to get over the jurors wanting to convict Scott Peterson. 

LONDON:  The defense has three major challenges.  First, to downplay the so-called “Amber tapes,” recorded conversations played in court between Peterson and his mistress. 

AMBER FREY, MISTRESS:  Yeah, well...

SCOTT PETERSON ACCUSED:  (UNINTELLIGIBLE)

FREY:  December you had lost your wife and this had will be the first holidays without her, yet...

PETERSON:  And I lied to you about that.

FREY:  Yes.

BETH KARAS, “COURT TV” CORRESPONDENT:  All they can do with that is say, look, yeah, he lied to his mistress, but doesn‘t make him a murderer.  Where‘s the evidence?  You can‘t convict a man on this evidence.  This is what they‘re going to argue. 

LONDON:  Second, the defense needs to address why the bodies of Laci and baby Conner were discovered less than a mile from where Peterson says he was fishing. 

Third, defense must convince the jury that Laci and her baby died after December 24 when Peterson was being watched by police.

KARAS:  And if Mark Geragos can show that she lived a few days more, then it wasn‘t Scott Peterson who killed her. 

LONDON:  The defense also can‘t ignore Peterson‘s altered appearance and bizarre behavior in the weeks following his wife‘s disappearance and the fact that he was arrested near the Mexican border with tens of thousands of dollars in cash. 

(on camera):  One of the biggest questions, will Scott Peterson take the stand in his own defense?  At this point, we simply don‘t know.  But, a source close to the case says the defense is struggling with that right now and may wait until the very last possible moment to make that decision. 

In Redwood City, California, Jennifer London, MSNBC. 

(END VIDEOTAPE)

ABRAMS:  My take:  Don‘t believe that.  Don‘t believe it for a second, ladies and gentlemen.  The defense would love for everyone to believe that it‘s up in the air, whether Peterson‘s going to testify.  The defense is torn as to whether he takes the stand.  Don‘t buy it.  The defense is doing too well and there are too many things Peterson can‘t explain.  No matter what they say, I assure you that decision has been made. 

Joining me now, criminal defense attorney Jeralyn Merritt and Mercedes Colwin and a former San Mateo County prosecutor, Dean Johnson, he‘s been in the courtroom for most of the trial. 

All right, now I‘m going to ask you to take off—I know, you put on the defense attorney hat.  Now I‘m going to ask you to be honest with my viewers.  Now I‘m going to start with you Mercedes.

MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY:  OK.

Do you honestly think that the defense is still deciding whether to call Scott Peterson? 

COLWIN:  I think that Scott is probably giving Geragos a really hard time about not taking the stand.  I mean, remember, this man...

ABRAMS:  Right.  But now let me—right.

COLWIN:  ...plain, on national airwaves.  No, clearly Geragos is not going to put him on the stand. 

ABRAMS:  Right.  OK.  All right.

Jeralyn, do you agree with that? 

JERALYN MERRITT, CRIMINAL DEFENSE ATTORNEY:  I‘m not sure and the reason I‘m not sure because, as Mercedes started to say, that‘s the one of the few decision that is the client‘s and not the lawyer‘s and since he‘s on trial for his life, he may well tell his lawyer I want to testify.

ABRAMS:  And you know what?  It‘s a bad lawyer who can‘t get his client to sit down and not take the witness stand.

COLWIN:  But Dan, he went on national—I mean he went on television and here‘s a man who really thinks that he can conned this jury. 

ABRAMS:  Yeah, and what a mistake it was.  I mean, he‘s seeing all of his statements used against him. 

COLWIN:  Now he does.

ABRAMS:  I mean, you‘d think it‘s go to be a lesson.

All right, Dean, I know you‘re—you know, you‘re sane.  I mean, any sane person who looks at this case has got to say there is a zero point zero percent chance Scott Peterson‘s taking the witness stand. 

DEAN JOHNSON, FMR.  SAN MATEO COUNTY PROSECUTOR:  Yeah, zero.  Mark Geragos has done a great job for Peterson so far...

ABRAMS:  Yeah, he‘s done a really—what does he need it for?

JOHNSON:  And Scott—and Scott is going to listen to Mark‘s advice. 

ABRAMS: Yeah.  All right.

JOHNSON:  He is not going to take the stand. 

ABRAMS: Yeah.  He is not going to take the stand.  All right.

Let me just quickly- -- we‘re going to go through a bunch of issues the defense is going to be—let‘s just get one out of the way.  Topic one, the timeline.  All right?  Let‘s put up full screen No. 1. 

This is the prosecution‘s timeline.  Now Peterson said that at 9:30, he left—about 9:30, he left his home.  At 9:48, Peterson is watching Martha Stewart at home, we know that.  He‘s watching—he says that he was watching Martha Stewart with Laci, they saw something, that meringue.  That came on at 9:48 a.m., 10:08, cell phone records put him in his neighborhood.  And 10:18, his dog was found wandering with its leash on in the neighborhood.  But, Jeralyn, that‘s going to be the attack point, I would think, for the defense, is that 10:18.  Right? 

MERRITT:  I think you‘re right.  I think Mark Geragos has already said there may be problems with a time stamp on a machine that the witness who saw the dog at 10:18.  She said she had been to a store and bought something.  He said there may be problems with that and he‘s already shown there are problems with cell phone records where the cell phone is timed based upon a wave where it bonus from a tower. 

ABRAMS:  Um, and I—and I think that‘s going to be the issue, is it not, Dean?  The fact that basically the way she estimated, this woman who found the dog, estimated 10:18 is she looked at the receipt she bought when she was in town, effectively and then went back and timed it backwards, right? 

JOHNSON:  Yeah.  There are a couple of flaws with that analysis and Geragos has already painted the seeds.  First of all, there apparently there is a witness, the guy who programmed these registers that generates the time—the on the cash register receipt.  Geragos has already mentioned that guy.  We don‘t know if he will be called as a witness. 

Second, the witness, Karen Servos (ph), who lays out this timeline makes certain assumptions about how much time she spent in the store and so on.  Geragos will attack that.  And then as Jeralyn pointed out, there are real questions about establishing Scott‘s whereabouts by these telephone towers so there are problems there. 

ABRAMS:  Because the key, of course, is that the defense wants to leave more than 10 -- you know, if it‘s a 10-minute window between the time Scott Peterson‘s in Modesto and his wife is abducted during a walk with her dog, it doesn‘t leave much of a window for her to have left the house and her to put her shoes on, do whatever you need to do to go out walking.  But, we‘re—we‘re going to take a break.  Legal team is going to stick around.  We‘ve got four other issues at the—that we expect the defense is going to try and deal with, police missteps, we‘ve got Scott‘s alleged lies, the baby‘s age, Peterson‘s behavior, it‘s all coming up. 

And an NFL quarterback wears a fallen teammate‘s number on his helmet during a game.  Remember Pat Tillman, died in Afghanistan after giving up a lucrative NFL career.  But, now Jake Plummer may face a hefty fine from the NFL because he ignored league policy about what you can wear on your helmet. 

(COMMERCIAL BREAK)

ABRAMS:  Um, we‘re back, talking about the Laci Peterson case.  Let‘s play a piece of sound from Scott Peterson talking about the police investigation. 

(BEGIN VIDEO CLIP)

PETERSON:  I think they‘ve done a very good job.  They were out here that night—helicopters, dogs, um, numerous officers.  They were out here that next morning, 6:00 with—you know, hundreds of officers.  Um, they have—they continued to invest—work on investigation. 

(END VIDEO CLIP)

ABRAMS:  Scott Peterson really talking about how the investigation seemed to be going pretty well.  He doesn‘t feel that way anymore.  The defense has been attacking the police. 

Let me lay out some of things they say that—some of issues that they have with what the police has done.  That they didn‘t do forensic tests on items found near Laci‘s bodies.  They didn‘t simulate a test to conclude if it was possible for Peterson to have dumped Laci‘s bodies from his boat.  That it took more than 19 months to interview a truck driver who reportedly saw Laci walking her dog on December 24.  Took more than a year to investigate a tip of some woman being shoved into a van.  They didn‘t follow up on other viable theories. 

Jeralyn Merritt, does this mean as part of the defense case, that bargains tomorrow, and that‘s what we‘re talking about, that they‘re going to call other police officers or call some of them back to the stand?

MERRITT:  I think Mark Geragos has indicated he may call some of these officers back to the stand.  You know, he is saying that there are leads that the police could have followed up on and that those leads may have lead to the real murderer and now we‘ll never know because the evidence is gone and evaporated because they didn‘t follow up on time. 

COLWIN:  I would be concerned about that, Dan.  I think Jeralyn raises an excellent point, but as Geragos is sitting back and saying to himself, do I want to put Brocchini back on the state, to have him rehabilitate it? 

ABRAMS:  Right.

COLWIN:  And he just—he did such a great job on cross.  Let it be, just bring it up on closing.

ABRAMS:  Yeah, I think that is right.  Dean, what about this woman who says they saw Laci—says that they say Laci near the warehouse around December the 20th?  Remember, there is this big issue of did Laci Peterson ever go in Scott Peterson‘s boat?  Why is that so important?  Of course, because one of her hairs was found in pliers in the boat and the prosecutors have basically suggested, look, she didn‘t know he had a boat and now there‘s some indication that maybe she‘d been to the warehouse where the boat was.  Go ahead, Dean. 

JOHNSON:  Yeah, I think that is a big non-issue.  I mean, the fact that Laci‘s hair is in the boat is something that the defense has four or five different answers for.  The first of which is that Laci was married to Scott.  Scott very well could have brought that out on clothing.  There is any number of other scenarios and I don‘t think anybody really disputes at this point that Laci was, at some point, at the warehouse.  So, is—they may bring up a point or two about that, but the downside risk of putting these cops back on the stand, giving them another shot at the jury, it just doesn‘t justify making that a big issue. 

ABRAMS:  Yeah, even though, of course, the hair was wrapped around pliers, but I completely agree with Dean‘s analysis on that. 

All right, No. 3.  Issue three that the defense is going to put up—

No. 3 -- three—three.  All right, it‘s going to come up in a minute.  Scott‘s alleged—there! Scott‘s spin story: Scott‘s alleged lies.  All right?

Um, here is—here‘s Scott Peterson talking to family members and, keep in mind, what he‘s telling them, according to cell phone records, is not true as to where he is. 

(BEGIN AUDIO CLIP)

S. PETERSON:  Hey mom.

JACKIE PETERSON, PETERSON‘S MOTHER:  Hi.  Are you there?

S. PETERSON:  Yeah.

J.  PETERSON:  Where are you?

S. PETERSON:  What‘s that?

J.  PETERSON:   West Fresno.

RICHARDSON:  Where are you?

S. PETERSON:  I am in Buttonwillow.  So, you‘re going down 99, huh?

RICHARDSON:  Yeah.

S. PETERSON:  OK.

(END AUDIO CLIP)

ABRAMS:  So, Mercedes, we hear that they may call family and friends to try and put into perspective some of the lies, quote unquote “lies” or some of the out right lies, etcetera.  How can it help? 

COLWIN:  I don‘t think it would help, honestly.  I mean, I think Geragos is sort of floating these theories, waiting to hear from some of these experts on TV to see what would be the most effective way.  I think look at it very clearly, the gestational age of Conner is critically important. 

ABRAMS:  That‘s coming up after the break. 

COLWIN:  So that, and just really stick to just the gestational age of baby, talk about the cement, and then move on to the tidal currents.  That‘s it.  Any of this other extraneous things, then he‘s going to fall into the trap that prosecutors did.  Just keep it clean. 

ABRAMS:  What about the—what about the lies about the nursery?  You know, that he—do we have number 15 ready?  That basically he says—this is what he says to Dianne Sawyer about that issue?  Oh, we don‘t have it.  Ok.  Anyway, Jeralyn, what he said to Dianne Sawyer in an interview, as you know, was telling about the nursery, “I can‘t go in there.”  He starts getting tear—let‘s play it.  Go ahead. 

(BEGIN VIDEO CLIP)

DIANE SAWYER, “ABC NEWS”:  Tell me about the nursery. 

PETERSON:  I can‘t go in there.  That door is closed.  There‘s nobody been in there.  I—it‘s... 

(END VIDEO CLIP)

ABRAMS:  And then a couple of weeks later when they went to the home, if we can show the video, they showed the nursery with all sorts of—being used as a storage unit.  Do you want to call family members to say look, I put some of that stuff in there? 

MERRITT:  You might.  But I think, you know, Geragos pretty much has that taken care of by the fact that he helped decorate this nursery, getting ready for the baby.  That tents to show that he wanted this baby to be there.  Also, the fact that he couldn‘t go in the room, maybe that‘s why he filled it up with stuff so he didn‘t have to open the door and see an empty room.

(LAUGHTER)

COLWIN:  Then you know, they—he may—Geragos—Jeralyn, that‘s an excellent point, but...

ABRAMS:  I love that line.

COLWIN:  Geragos may want to call some of those friends and family to just talk about moving all the things into the nursery...

Yeah, that‘s what I...

Which I think they‘re going—he may try to do.

I think they may try and do that too.  All right, we‘re going to take a quick break here.  We have two more big topics coming up on this case.  You heard Mercedes a moment ago saying the baby‘s age could be make or break. And also, Peterson‘s behavior. We‘ll talk about all that.

And should the NFL‘s policy of prohibiting personal messages on uniforms or helmets extend to honoring Pat Tillman? He died in Afghanistan after giving up a lucrative career in the NFL.

(COMMERCIAL BREAK)

ABRAMS:  Coming up—continue to preview the defense case. It begins tomorrow in the Scott Peterson trial. First, the headlines.

(NEWSBREAK)

(BEGIN AUDIOTAPE)

PETERSON:  Amber, are you asking if I had something to do with this?

FREY:  You never told me you haven‘t.

PETERSON:  Yes, I have. I had nothing to do with this, you know that.

(END AUDIOTAPE)

(BEGIN AUDIO TAPE)

GROGAN:  It is a matter of time.

PETERSON:  Craig, you (AUDIO GAP) I had nothing to do with Laci‘s disappearance.

(END AUDIOTAPE) 

(BEGIN VIDEO CLIP)

SAWYER:  I think everybody sitting at home wants the answer to the same question—did you murder your wife?

PETERSON:  No. No. I did not. And I had absolutely nothing to do with her disappearance.

(END VIDEO CLIP)

ABRAMS:  That is one of things Scott Peterson‘s got going for him, as the defense begins its case, that again and again, he has denied having any involvement, every time he was asked on tape, did you do it? No. No. No.  No. No. No matter who asked him.

Another thing, though, that he may have going for him is the issue of how old was the baby? Now remember, this is a big issue because Laci was about 7 ½ months pregnant, right? And Scott Peterson was being monitored from the day after Laci disappeared. It would have been really difficult, if not impossible, for Scott Peterson to have dumped the body somehow after that point.

So, what the defense wants to say is if that baby was closer to 8 ½ months, well, then, Scott Peterson couldn‘t have done it. But we‘ll talk in a minute about what the defense may introduce.

Here‘s what the prosecution introduced. Number 18:  A medical assistant, Lisa Hill, testified that Conner had gestational age of 32 weeks on December 23. Dr. Gregory Russell Devore (ph), Conner died between December 21 and 24 at a gestational age of 33 weeks and one day. That is exactly what the prosecution wanted.

Although Devore admitted on cross-examination that using Laci‘s second ultrasound, the date of death would have been between the 25th and the 28th. Also, a forensic anthropologist testified somewhere between 33 and 38. Agreed that she‘d given two-week window or cushion to each side.

And the coroner‘s investigator said Conner was a few days old when discovered. Now pathologists, Brian Peterson testified Laci did not have a vaginal birth, that Laci was killed with the baby still in the womb, he believed. Again, supports the prosecution.

Condition of Conner‘s body indicates he was more protected than Laci‘s, supports the prosecution. That Conner exited Laci‘s body through a decomposing uterus. Can‘t conclude, though, if the baby was born alive. But presumes that Laci‘s death killed Conner in utero.

All right. So, Jeralyn, this is really where I think you‘ll see defense witnesses here, called to testify, called to challenge these prosecution experts.

MERRITT:  I think you‘re right. I think this is the whole case for the defense. All they have to do is show that there is a reasonable doubt as to whether or not this baby lived past December 24.

If they can do that, then Scott Peterson is not guilty because he was under constant surveillance. And the experts so far we‘ve heard have disagreed. It‘s all Mark Geragos has to do is put on some other experts that are going to testify his way and then you‘ve got reasonable doubt.

ABRAMS:  And, of course, there is that tape found wrapped around the baby‘s neck that the defense would like the jurors to believe that means the baby was actually born alive and then somehow the tape was wrapped around.

Dean, how important do you think this is?

JOHNSON:  This is the lynchpin of the defense case. As Jeralyn pointed out, if Geragos can convince this jury of that one fact, that Conner lived even a day beyond the fateful day of December 24, then all of the rest of it, all the supermarket tabloid tapes, girlfriends, everything else, becomes irrelevant because Scott could not have done it.

And going through that list of prosecution witnesses, you can even take the prosecution‘s own evidence and put a defense spin on it. Dr.  Peterson, for example, said he thought the baby was at or near full term.

Dr. Galloway (ph), the forensic anthropologist says that she believes the overwhelming probability is that this baby was—had a gestational age of something like 35 to 36 weeks, 33 weeks which is December 24 is way out on the end—extreme end of probability. So, that bolstered with the defense testimony, is the absolute lynchpin of this defense.

ABRAMS:  Mercedes, these are the sorts of things that jurors love, stuff that they can just grab their hands around and say, look, if the baby was—if we‘re not convinced—this is what the defense would love—these jurors go back and say we‘re not convinced that that baby was 33 weeks, we think it might have been 36 weeks, that‘s reasonable doubt. And they hope the jurors will ignore the rest of the evidence.

COLWIN:  That‘s exactly right. I couldn‘t agree more. One thing I have to caution, if Geragos goes down this path that it may have been a satanic cult that ripped the baby out of Laci ... 

ABRAMS:  He won‘t.

COLWIN:  Or any of that nuttiness that he floated early on in the case, then it doesn‘t matter what the expert testifies, they‘ll disbelieve the expert. As long as he focuses in on Conner and his gestational age I think he‘ll be good. 

ABRAMS:  He‘s not going to. He‘s already thrown out a thousand

theories. He‘s not going to tie himself to one

All right. Guilty, the behavior of Scott Peterson is our fifth issue.

Peterson‘s behavior. Here is a piece of sound from a relative of Laci.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  It‘s true. The man was more upset about his burnt chicken than even thinking about finding his wife.

(END VIDEO CLIP) 

ABRAMS:  All right. That‘s Harvey Campbell. Let‘s go through some of the issues that they say demonstrated his sort of odd behavior.

Peterson seem more upset with his burnt chicken than his wife disappeared. One officer testified that Peterson seemed more uncomfortable answering questions about his fishing trip than when identifying contents of Laci‘s purse.

Two friends said that Scott didn‘t want photos of himself released to the media. He didn‘t want the media at the volunteer center early in the morning and avoided the volunteer center when the media was there.

That at the vigil for Laci on the 31st, that he didn‘t come on stage with the families, that some people said he didn‘t display any emotion.  That he seemed jovial in a good mood at the vigil.

And then of course, we know he is talking to Amber Frey, too. That Peterson told him he‘d rather be with the workers than with his family. He was happier that way.

And, of course, there is the fact that on January 8, 2003, he ordered the “Playboy” channel and, of course, or somebody from his house ordered the “Playboy” channel January 12, 2003, canceled the “Playboy,” instead orders two hardcore porn channels. All right.

So, Mercedes, is the defense going to call any witnesses to rebut this sort of seemingly guilty behavior?

COLWIN:  Well, I think that they might. There certainly may be someone that they may call about his behavior because there are witnesses, at least early on in the preliminary hearing. We know there were some of these neighbors that said he was completely distraught walking through the streets, very upset he couldn‘t find his wife. There are enough witnesses to rebut some of these things.

But if you...

ABRAMS:  I think they‘ll call family members. They‘ll call family members to give some innocent explanations for this or that. Right?

COLWIN:  I think Jacqueline Peterson makes  -- she is extremely sympathetic because if she sits there is with a respirator on.

ABRAMS:  And she believes in Scott‘s innocence like nobody‘s business, I‘ll tell you from having talked with her. She was convinced that body would never be found in the San Francisco Bay and even when it was, she was convinced that someone must have framed him.

Let me play one more piece of sound because you can‘t get enough of the Scott and Amber tapes. As a result, this is Scott Peterson New Year‘s Eve talking to Amber. I‘ll go to you dean on this. Let‘s listen.

(BEGIN AUDIOTAPE)

FREY:  How was your New Year‘s?

PETERSON:  It‘s good. I‘m just, everyone‘s in the bar now. So I came out in the alley, a quiet alley. Isn‘t that nice?

FREY:  Yes, it is. I can hear you.

PETERSON:  Hee-hee-hee.

FREY:  Very good.

PETERSON:  It is pretty awesome. Fireworks there at the Eiffel Tower.

A mass of people all playing American pop songs.

(END AUDIO TAPE)

ABRAMS:  Of course, he wasn‘t in France at the time. You know, Dean, I assume Geragos just ignores—almost ignores all Amber evidence, right?

JOHNSON:  Well, I think so. I think he is just going to try to put that aside. As we‘ve said, focus on expert testimony, forensic testimony.  But this is a huge hump for the defenses to overcome.

Remember, that most fateful statement “I lost my wife and I‘m going to spend the holidays alone,” that‘s the big—that‘s when the big time lying stars. The next day, Scott Peterson goes shopping for that fishing boat.  The beginning of holidays, December 24 is the first time that fishing boat goes in the water and the day Laci goes missing and, of course, Happy New Year, Amber.

COLWIN:  Dean, don‘t you find it ironic that Amber happen to have an affair with someone else that said he was also a widow?  I mean...

ABRAMS:  That is why he‘ll ignore the Amber evidence.

JOHNSON:  Yes, it is just going...

MERRITT:  Amber doesn‘t prove anything one way or the other.

ABRAMS:  Yeah. I know.  All right. OK.

I have to wrap it up. Good segment, though. I appreciate it. Jeralyn, Mercedes, Dean, thank you.

COLWIN:  Thanks, Dan.

JOHNSON:  Thank you, Dan.

ABRAMS:  Coming up, one of you pointing out a flaw in the defense theory that someone dumped Laci‘s body in the San Francisco Bay to frame Scott Peterson. Your e-mails are coming up later. Send them to abramsreport@msnbc.com. Please include your name and where you‘re writing from. I always respond at the end of the show.

Up next, Pat Tillman died for his country in Afghanistan after giving up a NFL career to serve. Now one of his former teammates could be fined thousands of dollars for honoring Tillman on the field?

(COMMERCIAL BREAK)

ABRAMS:  There is no question that Pat Tillman defines the term hero.  Tillman was a safety with the Arizona Cardinals. He played with the team for four years but after the attacks on September 11, Tillman decided to turn down a three-year $3.6 million contract with the NFL to join the Army Rangers in May of 2002.

He fought al Qaeda and the Taliban and was killed in Afghanistan in April. Jake Plummer, played alongside Pat Tillman in college and the NFL.  He spoke at Tillman‘s memorial in May.

(BEGIN VIDEO CLIP)

JAKE PLUMMER, TILLMAN NFL TEAMMATE:  Today and forever, let‘s remember what he was. Let it filter through our lives so we may become more beautiful inside and honor Pat in that way.

(END VIDEO CLIP) 

ABRAMS:  The league has honored Tillman several time this is year at the NFL draft, the Hall of Fame induction ceremony in August, and during the second week of the season when all NFL players wore the number 40 on their helmets. It was Tillman‘s number.

Since that time, Jake Plummer has continued to wear the decal honoring Tillman on his helmet, despite league rules that say he can‘t. The rules say that players can‘t put personal messages on their helmets. He could be fined $5,000 for violating it. Plummer says he doesn‘t really care.

(BEGIN VIDEO CLIP)

PLUMMER:  I‘m going to get fined, I know that. I‘m going to pay my fine. I‘m going to ask people to pony up and give to the Pat Tillman Foundation.

(END VIDEO CLIP)

ABRAMS:  My take, this is a completely legitimate rule that the NFL has in place and the general concern, with exceptions to the rules, that it sets a bad precedent. But I think you can carve out an exception that allows one of Tillman‘s closest friends to offer his respects, more than the rest of the league. They can call it a violation, but decide not to fine him. In essence, prosecutorial discretion, not to prosecute.

Joining me now to debate is former NFL attorney David Cornwell, who helped revise the league‘s uniform policy, and Matt Couloute, former prosecutor and attorney for the NFL.

Gentlemen, thanks for joining us.

Look, I know that both of you believe that honoring this hero is nothing but a good thing. Everyone agrees to that. The question is not was he heroic, it is, should the NFL fine Jake Plummer? Is this a bad precedent? David Cornwell?

DAVID CORNWELL, FMR. NFL ATTORNEY:  It is a bad precedent. As you indicated, this rule has clear application, it‘s designed to prevent players from becoming billboards on the fields and protect the presentation of the NFL product.

An exception here would run the risk of becoming an exception that ultimately swallows the rule. It is a slippery slope and we wouldn‘t know how to distinguish from honoring a clear hero in another message that was close to another player emotionally. So, application of the rule here is appropriate and a fine should be imposed.

But I also applaud Jake for taking the stand and recognizing that he wanted to honor his friend and it was a price he was willing to pay.

ABRAMS:  And that is the argument, Matt, that a rule is a rule.

MATT COULOUTE, FMR. NFL ATTORNEY:  I can understand the argument. I personally feel that it is a good rule. But in this circumstance, seems kind of contradictory that on one hand say we‘re going to honor Pat Tillman this way in week two and NFL draft by doing this. At the same time, allowing Arizona Cardinal players to continue wearing that number 40 on the back of their helmet. And then fining Jake Plummer for actually wearing that.

It doesn‘t make sense. One, it doesn‘t sit well with the other. I applaud Jake for actually doing that and think it‘s a good thing. At the same time, I don‘t think that the league should go about fining him or disciplining him in any way.

ABRAMS:  What about David‘s point about how do you define it? Someone else has a very close relative of his or a fellow player that dies in a car accident or some other way. And says, you know what? I‘m going to respect my colleague, my friend, as well?

COULOUTE:  I think that‘s clearly inappropriate. But what I think we should really look at is the fact that the league actually condoned it in week two, during the draft. And now at this point in time still allows Arizona Cardinals to wear it, but won‘t allow this player to wear it.

Why is it so inappropriate for Jake to wear it and not the rest of the Cardinal team?

ABRAMS:  David?

CORNWELL:  I think Matt‘s point actually makes my point of consistency. Because the NFL acknowledged Pat Tillman at the draft, at the Hall of Fame, let all players during week two wear an honor to him. And allow the Cardinal to honor him throughout the entire year, the NFL is recognizing that a tribute is appropriate.

At the same time, it is saying we have to be able to control the presentation of our product and we can‘t allow, if you will, one offs across the league and allow another player to express, in the form of a personal message his concern for Pat Tillman.

COULOUTE:  Well, Dave...

CORNWELL:  It is a slippery slope.

COULOUTE:  What‘s the difference between the tribute that the Arizona Cardinals players is doing by putting that sticker on his helmet and what Jake Plummer is doing?

CORNWELL:  It‘s a clear difference.

COULOUTE:  He was a teammate at one point in time. And he probably feels more strongly than some of the players out there about wearing it.  Why was it inappropriate?

ABRAMS:  Final word, David.

CORNWELL:  The clear difference is that one is approved by the NFL and the other isn‘t. And that‘s why Jake will be fined and why the Cardinals are not.

ABRAMS:  We all, though, salute Jake Plummer, for making, you know—whether he gets fined or not fined, we all agree that he deserves to be saluted for what he is doing.

CORNWELL:  Indeed.

ABRAMS:  I have to wrap it up. Sorry, gentlemen.

David Cornwell, Matt Couloute, good to see you guys.

COULOUTE:  Thank you for having me.

CORNWELL:  Thank you.

ABRAMS:  Coming up, your e-mails. Martha Stewart is in prison. One of you says, ah, don‘t worry so much about how she‘ll be treated, but how she‘ll treat her fellow inmates? Your e-mails next.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”:  The stunning effort in Egypt to justify last week‘s terror attacks on the Egyptian side of the Israel-Egypt border that killed at least 33, mostly Israeli tourists. Terror attacks in Egypt have been rare since the government cracked down on Islamists in the ‘80s and ‘90s.

In what seemed like an effort to prove that somehow this is different, the government spokesperson, Nagdi Radi (ph) said these attacks are, quote, “very related to what is going on in Gaza,” referring to Israel‘s recent incursion in northern Gaza after missiles were fired at Israel from that area.

Essentially, the spokesperson is saying, but for the new battle in Gaza, terrorists would not have attacked.

These terrorists, be they al Qaeda or Palestinians, don‘t act rationally. They just attack civilians when they can. They‘re opportunistic killers. To suggest otherwise is to rationalize what they do.

And some former Egyptian officials aren‘t just blaming Israel for inviting the attack, they‘re actually suggesting Israel attacked its own people. A sort of 9/11 conspiracy theory that Muslims could not have pulled this off.

Retired General Muhammed Abdul Fahta Omar, a former official with the Ministry of the Interior, which is responsible for the country‘s security, quoted in the “Jerusalem Post” saying Israel is the only party that benefits from the Sinai attacks. The Israelis and their agents are the only ones who are able to enter this area without difficulty.

Another former official with the foreign ministry is quoted having said, that he has no doubt, quote, “Israeli hands were involved.” These terror apologists just can‘t condemn those who target innocents, whose only goal is to kill as many civilians as possible.

Even when they do offer condemnation, there is always a “but”, and excuse, a shifting of blame. As I said before, the only time I care why terrorists act, here at home, or in Egypt is if it helps us catch them.  Otherwise, spare us the excuses.

I‘ve had my say. It is time for your rebuttal.

Martha Stewart turned herself into a federal prison in Alderson, West Virginia, Friday morning, to serve a five-month sentence. On Thursday, I asked a former prisoner at that prison camp, how Martha might be treated by the guards, other prisoners. I said the rules might have to be changed a little bit, even if they say they won‘t.

Ellen in Long Beach, California: “Instead of asking how the prisoners will treat Martha, the question should be, how will Martha treat the prisoners?”

Ellen, I would think she‘ll be on her best behavior.

Mark in Randallstown, Maryland asks:  “Will her sentence qualify for good time? And if so, how is it calculated? Love the show.”

Thanks, Mark. 

Now under the federal sentencing guidelines, if you get less than a year, no time off for good behavior. Five months in prison means five months. And then she has five months home detention.

Scott Peterson:  The defense‘s theory that Laci Peterson‘s body was dumped in the San Francisco Bay to frame Peterson.

John Long, writes, “How can the defense reasonably argue that some one dumped her body in the bay to frame Scott Peterson while weighing down the body. Someone trying to frame Peterson would have dumped the body so that it would have been found as soon as possible. Weighing the body down serves no one‘s purpose, except Scott Peterson‘s.”

Finally, Joyce Geller, tells me to lose the “sour puss”

“I‘ve been watching for many years. You need to smile now and then. It does not have to be all teeth, just a hint to soften up your face a bit.”

Your e-mails, Abramsreportmsnbc.com. One word, go through them at the end of the show.

Thanks for watching.

Up next, “HARDBALL” with Chris Matthews. Chris talks with CBS‘ Bob Schieffer,  the moderator of the third and final presidential debate.

Thanks for watching. I‘ll see you tomorrow.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

END   

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