updated 10/18/2004 10:27:14 AM ET 2004-10-18T14:27:14

Guest: Bo Dietl, Deborah Kelly, Linda Hitt-Thatcher, Dean Johnson, Edie Lambert, Harriet Ryan, Roger Clegg, Jesse Allen

DAN ABRAMS, HOST:  Coming up, even if the allegations of the lawsuit against Bill O‘Reilly is true, is it a clear violation of the law?  A producer on his show claims O‘Reilly talked dirty to her and tried to engage her in phone sex.  He says he‘s ready to fight the accusations, but so far has not denied the calls took place.  But even if the allegations are true, does that necessarily mean it‘s sexual harassment? 

And in the Scott Peterson trial, we take a look at the jury, the 12 men and women who will decide his fate.  Which side might each one be favoring? 

Plus, Martha Stewart, and the presidential election?  The connection, now that Stewart‘s a convicted felon, she won‘t be allowed to vote, but it varies state to state.  Is it fair to deny ex-cons the right to vote? 

The program about justice starts now.

Hi everyone, first up on the docket, the Bill O‘Reilly lawsuits factor.  The Fox News Channel host facing a sexual harassment suit brought by one of his show‘s associate producers.  At issue her claim that‘s O‘Reilly made lewd comments and suggestions to her during the two years she worked on his show.  Actually she worked on her show longer, but it was a two-year period.  In turn, O‘Reilly and Fox have filed a suit of their own.  Before we dissect the law and talk to a private eye working for O‘Reilly, NBC‘s Anne Thompson has the story. 

(BEGIN VIDEOTAPE)

REGIS PHILBIN, “REGIS AND KELLY”:  Here‘s Bill O‘Reilly. 

ANNE THOMPSON, NBC CORRESPONDENT (voice-over):  On television to promote his children‘s book, Bill O‘Reilly talked about his very adult problem, charges that he sexually harassed one of his female associate producers. 

BILL O‘REILLY, “THE O‘REILLY FACTOR”:  Now if I have to go down, I‘m willing to do it.  But I‘ve got to make a stand.  I‘m a big mouth on the air, I‘m a big mouth off the air. 

THOMPSON:  From morning to night, defending himself. 

O‘REILLY:  And finally, thousands of you have written me great letters, and your kindness is really appreciated.  I hope you know that. 

THOMPSON:  O‘Reilly never denied the graphic conversations took place.  Instead he focused on his own lawsuit against Andrea Mackris, claiming she and her attorney demanded $60 million in hush money. 

(on camera):  But Mackris‘ accusations are so explosive and detailed, so detailed O‘Reilly‘s attorney believes she may have recorded some of the conversations.  Her attorney would not confirm that. 

(voice-over):  If there is a tape, broadcasting cable‘s John Higgins says O‘Reilly‘s problems may just be starting. 

JOHN HIGGINS, “BROADCASTING & CABLE” MAGAZINE:  I can‘t imagine what Howard Stern is going to do if there is a tape that comes out.  And that‘s what Fox News has to really fear. 

THOMPSON:  One more potential problem O‘Reilly must now factor. 

Anne Thompson, NBC News, New York.

(END VIDEOTAPE)

ABRAMS:  All right, I kind of gave my take yesterday, when I said that while O‘Reilly‘s extortion suit is a non-starter as a legal matter, and that Mackris still has a number of legal hurdles to leap, that even if Bill O‘Reilly said the things that Andrea Mackris claims, that does not necessarily mean, as a matter of law, that it‘s sexual harassment. 

My guests, Bo Dietl, on of America‘s great private eyes who Bill O‘Reilly has brought on to help him in this case.  Deborah Kelly a defense attorney who is representing companies in employment law cases, and Linda Hitt Thatcher is a plaintiff‘s attorney dealing with employment cases like sexual harassment in the workplace.

And we asked Andrea Mackris‘s attorney to join us.  Yesterday he declined saying he, quote, “has no interest in coming on the show.”  Today he did not return our calls. 

Before we get to the legal issues, let me start with Bo Dietl.

Bo, first, let me ask you, did Bill O‘Reilly say these things?  I mean, do they have a tape? 

BO DIETL, PRIVATE INVESTIGATOR:  Well, you know what?  We don‘t know if there‘s a tape or not, but Morelli, and Bo Dietl and John Quinlan Kelly have a relationship with each other.  We had a case three years ago, very similar to this case.  It was a $200 million extortion again. 

ABRAMS:  But let‘s focus on this case, Bo.  Let‘s stay on this one.

DIETL:  OK.  Well, it has something to do with it.  It mirrors it exactly.  This case now we‘ve been brought in to investigate the allegation and also to investigate the person.  The person that is supposedly sexually harassed. 

ABRAMS:  That‘s what I was going to ask you about.  Were you hired to sort of dig up dirt on her? 

DIETL:  Well, there is dirt—dirt of course, we got everything.  I mean already we‘ve been getting phone calls from people from all over the country that know this young lady and there‘s also some substantiation that Al Franken is an associate of hers.  And there‘s a lot of things going on in this case.  And as we‘re talking right now, we‘re developing the case now.  As far as sexual harassment goes, you have all the attorneys—you know, talk about that.  You know, you have two consenting adults talking about something.  The only charge that‘s really a factor here is the extortion charge against her and her attorney against Bill O‘Reilly. 

ABRAMS:  But Bo, he either said it or he didn‘t say it.  And that may be—we‘ll still have legal questions to discuss, even if he said it, that does not necessarily mean it‘s sexual harassment, if he said it. 

DIETL:  Well, I think—I think the most important thing here is you have the—you have a case against a well-known person, and they thought they were going to be able to shake them down.  You have an extortionist, here.  It‘s the only crime that‘s really active here.  As far as two people talking to each other, she could have hung up the phone at any time.  There‘s no case of sexual harassment there, and now what we‘re going to do, as investigators now, is take her credibility and show the court, if it ever goes there, her credibility falling apart. 

ABRAMS:  All right, let‘s get into the legal issues with the attorneys here.  Let me lay out what is defined both in the EEOC and in New York state as sexual hara—actually, let‘s go to No. 3 here, which is the definition, in New York state, of quid pro quo sexual harassment.  Let‘s figure out if this is sexual harassment. 

The “complainant was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors, harassment complained of was based on sex, submission to unwelcome advances was an expressed or implied condition for receiving job benefits, refusal to submit to a supervisor‘s sexual demand resulted in a tangible job detriment, and the employer was aware of the conduct.”

All right.  Let me start with you, Debra Kelly.  And it seems that on some of these she‘s able to overcome it, but on others she may have some difficulties. 

DEBORAH KELLY, EMPLOYMENT LAW ATTORNEY:  I think she‘s missing all of it.  There is no evidence that there was a tangible employment action here at all.  Tangible employment action is something that affects you in your wallet.  She‘s employed, she has a job.  In fact, she returned to come back to this job.  There is no evidence that there was any quid pro quo saying, “Hey, you either cooperate with me and do my kinky little acts or you‘re fired,” nothing at all.  So I don‘t think there‘s any shot at quid pro quo harassment here. 

ABRAMS:  And Linda—Linda Hitt-Thatcher, I mean the bottom line is phone sex does not necessarily equal sexual harassment as a legal matter, does it? 

LINDA HITT-THATCHER, EMPLOYMENT LAW ATTORNEY:  Oh, absolutely it does. 

ABRAMS:  It does?  So you‘re saying in a matter...

HITT-THATCHER:  ...especially...

ABRAMS:  ...if she encouraged it, if she was conversing with him at the time, etcetera, which we don‘t know if that was the case, but I‘m saying hypothetically, that to you would still be sexual harassment? 

HITT-THATCHER:  Absolutely.  It‘s because she was talking with her supervisor.  Her supervisor was the alleged harasser, and as such, he is held to a higher standard than a coworker.

ABRAMS:  So, even if he‘s held to a higher standard than a coworker, but what you‘re saying is no matter what she said on her end, you think as a legal matter, it doesn‘t matter? 

HITT-THATCHER:  She didn‘t say anything on her end.

ABRAMS:  We don‘t know. 

HITT-THATCHER:  Well, her complaint doesn‘t allege anything to that affect. 

ABRAMS:  Well, why would—well, why—but why would her complaint? 

HITT-THATCHER:  Correct. 

ABRAMS:  So, we don‘t know what she said. 

HITT-THATCHER:  But to answer your question,

ABRAMS:  Yeah. 

HITT-THATCHER:  Can phone sex be considered sex harassment. 

ABRAMS:  That wasn‘t my question.  My question was is phone sex necessarily sexual harassment. 

HITT-THATCHER:  If it‘s un...

KELLY:  It can‘t be...

HITT-THATCHER:  If it‘s unwelcome, sorry Dan, if it‘s unwelcome, it absolutely is. 

ABRAMS:  Deborah Kelly, go ahead. 

KELLY:  I don‘t think so, it can‘t be quid pro quo harassment.  You can do welcome things that I might not like, someone else might not like, but if the two people involved in it are OK with it, then it is not illegal.  But, I really think this is not going to fit in the box of the quid pro quo harassment, with all due respect to your question.  At—her best shot is a hostile work environment harassment, and I don‘t think she makes that either.  Because that has to be subjectively something that alters the condition of your work environment, it is so hateful to you.  And we...

ABRAMS:  Let‘s put up No. 4 because this relates to the issue of that issue.

KELLY:  OK.

ABRAMS:  This is the suit that she filed.

“Within defendants Fox and Westwood One, a permissive and encouraging environment for gender discrimination and sexual harassment reigns among supervisors, managers, and employees...”

The problem, Miss Thatcher, for me on that one is they didn‘t show anything about what Fox did or didn‘t do or Westwood One did or didn‘t do, it was all about what O‘Reilly said. 

HITT-THATCHER:  Remember, Dan, that O‘Reilly is the supervisor, he is the star of the show, he is Fox News.  And what she stated in a complaint is that the entire atmosphere permeated of sex harassment. 

ABRAMS:  But doesn‘t—again, let‘s focus on the law.  Doesn‘t, as a legal matter, let me ask you this, Miss Kelly, doesn‘t this as a legal matter, Fox have to have some sort of notice?  Some sort of—and let‘s be clear, they—it‘s incorrect in O‘Reilly‘s suit, he claims that she has to have reported it officially.  That‘s actually not true when it comes to your supervisor.  It‘s true if it was coworkers, not true if it comes to your supervisors, but don‘t they have to have some sort of indication, don‘t they have to have done something, allowed something to happen to be responsible? 

KELLY:  Well, I think we‘re mixing it up, and I don‘t want to turn this into an egghead piece on the law, but in your first clip that you showed there, it talked about someone has to complain, she never complained.  That‘s a big problem for her case.  She stayed, she left, and if he was so heinous, why in god‘s name did she come back, and recently, apparently, say to her friends that she was home again, like you know, it is Dorothy who had just returned from a bad trip through the “Wizard of Oz.”

ABRAMS:  But her argument, Miss Hitt-Thatcher, is it not, is that it got a lot worse when she came back. 

HITT-THATCHER:  That‘s correct.  I think there is a slight problem in that she came back.  However, I think she‘ll be able to overcome it, because the harassment that occurred after she came back was even worse than when she left. 

ABRAMS:  Bo, 20 seconds then I got to take a break. 

DIETL:  Dan, Dan, Dan, you know what this is going to be?  It‘s a message to people.  When you file these frivolous lawsuits and you think you‘re going to get people who are well known to give you money for garbage like this, we‘re going to investigate you.  We‘re going to uncover things that we‘ve already—about your life so you‘re wide open right, now.  So beware, people...

ABRAMS:  Yeah but Bo, if he said these thing...

(CROSSTALK)

ABRAMS:  I got to tell you, if he said those things, Bo...

DIETL:  Well, well, wait a second, wait a second...

ABRAMS:  And if it‘s unwanted...

DIETL:  If there‘s two consenting adults...

ABRAMS:  Right, yeah, that‘s right.  That‘s right.

DIETL:  ...and I want to call you up at night...

ABRAMS:  That‘s right...

DIETL:  ...and you get off on that, fine with you. 

KELLY:  And you know what?  Most...

ABRAMS:  And you know who is lying (ph) about this...

KELLY:  Can I say as a management lawyer, most people don‘t want to send out the message, if you come after us we‘re going to cream you.  What most management lawyers and employers want to send out the message is we don‘t put up with discrimination.  Tell us about it if it occurs, but don‘t think you‘re going to stay quiet for six years and make a profit off of it. 

ABRAMS:  Bo, has a different message to send out. 

DIETL:  No, no, my message, again, Dan...

ABRAMS:  I know, I know.  Let‘s take a quick break.

DIETL:  My message is if you want to get into the battle ground...

ABRAMS:  I know, I know.

DIETL:  ...everything will open up. 

ABRAMS:  Let me take—let me take a quick break.  Everyone‘s going to—going to stick around, because we‘re going to talk, when we come back, about the extortion claim.  Again, that‘s O‘Reilly‘s lawsuit against her.  This is one I‘ve said I don‘t think is a legal matter he‘s got any shot on.  But we‘ll talk about it. 

And, the Scott Peterson‘s defense team starting its case Monday, we evaluate.  Each of the jurors have reacted to the testimony so far, who are they, which way do they seem to be leaning.

Plus, 18 days till the presidential election.  A lot of controversy brewing over who gets to vote.  How about this one:  Convicted felons?  Should they be able to vote?  It varies state to state, we‘ll debate. 

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Bill O‘Reilly, not just suing the woman accusing him of sexual harassment, but also her lawyer.  We‘ll talk about the case coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

BENEDICT MORELLI, ANDREA MACKRIS‘ ATTORNEY:  They slapped us with this lawsuit in order to put a chilling effect on us, intimidate us and bully us into not bringing the lawsuit, that is the real lawsuit with merit, here. 

(END VIDEO CLIP)

ABRAMS:  Benedict Morelli, the attorney for Fox‘s associate producer, Andrea Mackris, giving his version of why Bill O‘Reilly of Fox News Channel sued him and his client before she filed her claim for sexual harassment. 

All right.  You know, look, Deborah Kelly, I haven‘t spoken with a single attorney who‘s told me that they think this is likely to be a winning suit for Bill O‘Reilly‘s team.  Just because everyday, in these civil lawsuits, they negotiate.  They go through a process where they say look, if you‘re not going to settle with us, we‘re going to—you know, we‘re going to go public, we‘re going to sue you. 

KELLY:  Yeah, I don‘t think the extortion was the way to go, because what you can use against her is the fact that she‘s suing him for $60 million, she has a job, she has suffered no adverse employment action, and she is just really wanting to cash in tons of bucks off of Fox and off of his big name, merely because he‘s the person she‘s alleged has made these phone calls to her she doesn‘t like.  I don‘t think—I think it‘s a preemptive strike that he took. 

ABRAMS:  Right.

KELLY:  But I don‘t think legally it is likely to succeed. 

ABRAMS:  And a good P.R. move, I mean look, as a P.R. move, it wasn‘t a bad move. 

KELLY:  Sure.

ABRAMS:  But as a legal matter, Linda Hitt-Thatcher, do you think that it‘s got any—I mean, let me read the definition of extortion under New York state.  This is a penal code, but again, this is still a civil lawsuit. 

“A person obtains property by extortion when he compels or induces another person to deliver such property to himself...by means of instilling in him a fear that if the property is not delivered the actor or another will... Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt, or ridicule.”

You know, by definition—you know, you could argue that threatening to go public with a lawsuit is extorting someone, but it doesn‘t really works a legal matter, does it? 

HITT-THATCHER:  Well, remember, extortion is just synonymous with blackmail.  There has to be an illegal taking of money.  None of that occurred here.  What happened was Mackris‘s attorney, like, made a reasonable move in asking Fox‘s attorneys top meet to discuss settlement.  That is not extortion.  And it wasn‘t until they actually met that they started talking numbers. 

ABRAMS:  And Bo, Bo...

(CROSSTALK)

DIETL:  Dan, you don‘t know....

ABRAMS:  Bo, we all agreed...

(CROSSTALK)

ABRAMS:  Hang on, Bo.  Hang on, Bo, we all agreed that 60 million is a ridiculous figure.  No one thinks that this is anything like that in terms of numbers.  But is it true or isn‘t it true that O‘Reilly‘s team offered some money here to get this to go away. 

DIETL:  Well, I know but I‘m not going to comment on that. 

(LAUGHTER)

DIETL:  But, let me explain something to you about the extortion.  You don‘t have to transfer any money, there.  The extortion part of this, if you read the thing there, the important—the important part is they mentioned that they‘re going to go after Fox News also, and they‘re going to bring down Fox News if they don‘t get this money and all, back for her.  You do have an extortion, you don‘t have to exchange money.  You put the threat in there, you have extortion.  I think it‘s a real case, there. 

I got something to say out there, a little, little tidbit to you.  If someone has the name “Mattress,” what does that mean? 

ABRAMS:  Mackris. 

DIETL:  Mattress, like something you lay down on. 

ABRAMS:  I got it.  I got it.

KELLY:  Hello!

DIETL:  You got it?  So our investigation is very progressively going.

ABRAMS:  Yeah, I bet.  I...

DIETL:  And things are coming out of the woodwork. 

ABRAMS:  Yeah, I can see where your investigation is going. 

DIETL:  Yeah.

ABRAMS:  All right.  Final question, Deborah Kelly.  The phone calls, as to when she said no.  All right?  She claims, in her suit again and again, that she effectively didn‘t want this to happen.  But it sounds like most of the quotes she‘s got are from him.  What do you think she‘s going to have to show with regard—because—you know, as Miss Thatcher points out, and as Bo Dietl points out, if she is agreeing to this, it could be a different scenario? 

KELLY:  Well, even if she was agreeing to it, I think the only shot she has is a hostile work environment claim, and it has to bother her so much, as a matter of law that it alters the condition of her work environment.  If it bugs you, if you think someone is—has no manners, is just reptilian, but it doesn‘t bug you, but you brush it off and think, “What an idiot,” that‘s not a hostile work environment case. 

ABRAMS:  Bad person doesn‘t mean you necessarily win a suit. 

KELLY:  And she kept coming back and even now—she kept going out to dinner with him, she kept talking on the phone.  If he was that heinous, she would say, “Who the hell are you?  Never call me again, and I‘m certainly not going to dinner alone with you.” 

ABRAMS:  I‘m give you, Miss Thatcher, the final word in this case. 

HITT-THATCHER:  Well, that—that—I agree that that may present a problem for Miss Mackris, the point I‘d like to make is that we have to remember that this is a woman that‘s in the—really in the prime of her career.  She has everything to lose, in the 18 years that I‘ve been representing plaintiffs; women generally do not file these lawsuits unless they‘re true.  And again, remember, this is her supervisor that is harassing her.  And in terms of altering her terms and conditions of employment, it was, the atmosphere there was absolutely horrible. 

KELLY:  Then why did she go back? 

DIETL:  (UNINTELLIGIBLE) Come on, how do we know that for a fact? 

KELLY:  Then why did she go back? 

(CROSSTALK)

ABRAMS:  I‘ve got to wrap it up. 

DIETL:  Yeah in the last case that Morelli was on...

ABRAMS:  All right, I know hear the last case of Morelli—anyway. 

Deborah Kelly, and Linda Hitt-Thatcher, thanks very much. 

HITT-THATCHER:  Thank you.

ABRAMS:  Bo Dietl, great to see you again.

KELLY:  Thank you. 

ABRAMS:  Coming up, they‘ve sat through it all, 19 weeks, 174 witnesses in the Scott Peterson case, through sometimes tedious, seemingly unending testimony.  They are the jurors.  The question:  How are they reacting to testimony?  We‘ll break it down with three people who‘ve been inside looking at them for the entire trial.  I got to look (UNINTELLIGIBLE).

And making your vote count:  But in the case of felons, should they be able to vote in the upcoming election?  About ex-cons?  Only two states allow those in prison, convicted, to take part in the process.  We‘ll tell you which ones, coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

MARK GERAGOS, SCOTT PETERSON‘S ATTORNEY:  We‘ve set the bar extremely high and that‘s to prove that Scott is not only factually innocent, but to figure out exactly who it is did this horrible thing to Scott‘s wife and to Scott‘s son and to their grandson. 

(END VIDEO CLIP)

ABRAMS:  Next week, Mark Geragos gets his first crack at convincing jurors Scott Peterson is not guilty.  There‘s been a delay in testimony because of what the judge called “legal issues.”  Testimony from the first of a number of defense witnesses is expected on Monday.  But after more than four months, sometimes riveting, and other times seemingly endless.  How‘s the juror hold up?  Who are they?  Which way are they leaning? 

Joining me now, three people who‘ve been inside the courtroom throughout this trial:  Former San Mateo County prosecutor, Dean Johnson;

KCRA reporter, Edie Lambert; and “Court TV USA” reporter, Harriet Ryan.

All right, in our next block, we‘re going to go through these juror by juror, and we‘ll talk about how they think they‘ve been reacting etcetera to certain testimony.  But let me start with you, Edie, just a general question.  You know, how have the jurors, do you think, been reacting to Geragos‘ cross-examination?  I mean, a lot of this case for the defense has been coming out in cross-examination.  Have they seemed irritated with him?  Have they seemed—you know, encouraged by him?  What‘s been their reaction? 

EDIE LAMBERT, KCRA REPORTER:  Well, I think some of the jurors have been largely entertained by him.  He‘s one of the people in court who will say a lot of funny things, and a lot of the jurors will laugh along with him, so there seems to be some engaging there in terms of personality.  Um, and also in terms of where we stand right now, I can tell that you that a lot of the jurors looked fairly irritated with this delay, so my sense is they are ready to get on with this trial and be done with it. 

ABRAMS:  Harriet, what‘s the hubbub around the court?  I mean, there are people sort of—do they sit there in the hallways and say, “Ah, you know, juror No. 6, this one‘s definitely in the defense camp, this one‘s definitely in the prosecution camp,” etcetera? 

HARRIET RYAN, “COURTTV.COM”: We have our theories.  We have nicknames for them, and we talk about how they reacted to one thing or another.  I would say that over the past couple of months, though, there‘s been less from the jury in terms of laughing at Geragos‘ jokes, and more frustration, we‘re here another month—you know, the kids have started school, we‘re still here. 

ABRAMS:  And, you know, Dean, which way does that cut?  The fact that the jurors clearly, and everyone—everyone I‘ve talked to agrees that these jurors have seemed irritated at these constant delays.  Who‘s that help? 

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Well, you know, the jurors are extremely frustrated and getting more so, but there‘s an old saying, the delay always favors the defense.  Remember...

ABRAMS:  Why? 

JOHNSON:  We‘ve had 19 weeks of prosecution testimony.  Most of it very disconnected, and the further we get away from that testimony, the less clear it‘s going to be in the jurors minds, and particularly in a case like this, that may depend upon connecting up very small pieces of evidence to one another.  The more there‘s delay, the more it favors the defense. 

ABRAMS:  All right, I‘m going to ask everyone to stick around, because when we come back, here‘s what we‘re going to go, we‘re going to go through a juror by juror.  But we‘re also going to talk about the events in that courtroom that apparently made them really react.  Edie and Harriet and Dean have all given us examples, like amber Frey for example, when she was on the stand.  What about the autopsy photos of Laci, Scott‘s TV interviews.  How exactly did they react?

And, inmate No. oh—sorry, 55170-054, otherwise known as Martha, joins over four million inmates who lost their right to vote in the upcoming election.  The question:  Once she gets out should—should she be able to regain that right?  A question all ex-cons face, we‘ll debate.  Your e-mails abramsreport@msnbc.com please include your name and where you‘re writing from.  We‘ll go through them at the end of the show.  

(COMMERCIAL BREAK)

ABRAMS:  Coming up, the jury in the Scott Peterson case.  We‘ll talk about how they‘ve been reacting to the prosecution case with three people who have been watching them from the beginning.  First the headlines.

(NEWSBREAK)

ABRAMS:  There have been some scenes in this case that have gotten some of the jurors in the Scott Peterson case all riled up.  From lies about his alibi, to evasiveness about his affair with Amber Frey, graphic autopsy photos, clothes found on Laci‘s remains.  Jurors heard and have seen a lot of evidence.  Court watchers have heard and seen a lot of reaction from the jurors.

We‘re going to take a look at a lot of these jurors with our jury watchers.  And they‘re going to tell us sort of how they‘ve been reacting.  Let‘s skip right to juror number five.  Because this is—juror number one through four, look, we have various notes from the people watching.  But they said they couldn‘t read a whole lot from jurors one through four.  Quiet, not much reaction.  Quiet, not much reaction. 

A white Catholic male, a white male, a Hispanic woman, white male.  Juror number five.  White male in his 40‘s.  Put up the full screen.  A medical doctor and lawyer.  Practiced medicine for two years before going to law school.  Worked as a litigator, never practiced criminal law.  Works for a company that develops heart medications.  Current company is intimately involved with DNA, and knows their protocols for proper results.

Apparently he‘s been taking a lot of notes, Harriet.  And what, this is the guy they think may become the foreperson?

RYAN:  I don‘t know about this.  This guy‘s an intellectual loner.  He eats lunch by himself.  Often reading a book.  He takes more notes than anyone I‘ve ever seen.  He actually ran out of ink in his pen during some testimony that wasn‘t in my mind particularly important.  He got very upset.  He turned; he was flagging down bailiffs left and right.  Waving his pen.  And they got a new pen and he continued taking notes.

When they passed evidence, he can‘t wait for it to get to him.  He will lean into the row in front of him, and look over people‘s shoulders.  And I‘ve seen some of his fellow jurors sort of chuckling at him.

ABRAMS:  Dean, as a lawyer in this case, which side are you on that makes you more nervous with a guy like this?

JOHNSON:  Well, I think at this point I would be more nervous if I were a prosecutor to have this guy on the jury.  Because the key points in the defense evidence is expert testimony, particularly medical testimony.  And this guy is a medical doctor.  And how he resolves those questions, those expert questions, who he gives credibility to, is very much going to determine how he votes.

More than that, his opinion about the medical evidence is going to sway a number of jurors.  He could take this jury in either direction.  And to tell you the truth, I cannot read for the life of me where he‘s going right now.

ABRAMS:  Juror number six.  White male in his 30‘s.  Apparently works frequently with police as a firefighter and paramedic.  Said, I know a lot of people with badges I‘m ashamed to be associated with.  Spends up to five hours a day biking while not on duty.  Knew little about the case before becoming a juror.  Edie, apparently this guy‘s been rolling his eyes sometimes at Mark Geragos, and looking at Laci‘s mother a lot?

LAMBERT:  Well, certainly on Tuesday he was one of two jurors.  A number of reporters saw giving Sharon Rocha just kind of a small smile as they left the courtroom after the delay was announced.  In general, I have to say he looks rather bored.  I see him with one of those Lance Armstrong yellow bracelets.  I think bicycling is a big part of his life.  And my sense is he‘d much rather be doing that.

ABRAMS:  Who is the one that was supposed to be buddies with Justin Falconer, number five, the one who got dismissed from the case, and is clearly pro-defense?

LAMBERT:  You got it, that‘s number six.  Those two hung out quite a bit before Justin Falconer was dismissed.

ABRAMS:  Juror number eight.  Divorced white man in his late 40‘s, early 50‘s.  A teamster, who works the graveyard shift.  Agrees the police can sometimes be too quick to arrest in high-profile cases.  We don‘t have this.  Didn‘t follow the case prior to becoming a juror.  OK, apparently we don‘t have this. 

Let‘s go to number nine.  This is one of the things that he really reacted to, was Scott Peterson on “Good Morning America”.

(BEGIN VIDEO CLIP)

JOAN LUNDEN, HOST, GOOD MORNING AMERICA:   Do you really expect people to believe that an eight-and-a-half month pregnant woman learns her husband has had an affair, and is saintly, and casual about it?  Accommodating?  Makes a peace with it?

SCOTT PETERSON:  Well, yes.  You don‘t know—no one knows our relationship but us.  And that‘s...

(END VIDEO CLIP)

ABRAMS:  Back to me.  Harriet, what was his reaction to that?

RYAN:  Juror number eight did not like Scott Peterson in those tapes.  If I could do my imitation of him, he was sitting with his arms crossed like this, leaning back, and he was just sort of rolling his eyes, something like, you know, it was just absolute disgust.  This is a guy who works frequently two shifts a day to make ends meet.  I don‘t think he‘s really relating to a guy whose parents were buying him a country club membership.

ABRAMS:  Juror number 11.  A black woman in her 40‘s.  Close relative is a deputy sheriff.  When talking about accepting evidence, she repeatedly said it depends on the circumstances.  Previously served on a jury in a civil trial. 

OK.  This is what she was reacting to, the Scott and Amber tapes, big reaction from her on this one.  This particular interchange is what she reacted to.

We don‘t have that either.  OK.  Why don‘t you tell us about it then, Edie.  Tell us what it was that we heard, and how she reacted.

LAMBERT:  If I‘m thinking of the right tape, I have to read your mind a little bit here, I believe this is where Scott is telling Amber, I never lied to you.  And then he qualifies that statement, and she laughed out loud.  Rolled her eyes, just how do you expect anybody, including Amber Frey, to believe these lines?

ABRAMS:  There was also apparently another, you know, another point about when he‘s talking about him being in Paris, Harriet.  How was your New Year‘s Eve?  It‘s good.

RYAN:  That‘s right.

ABRAMS:  Yes.  That whole...

RYAN:  I mean, about the whole...

ABRAMS:  Hang on, apparently we have this one, so let me play it.  Go ahead.

(BEGIN VIDEO CLIP)

AMBER FREY:  How was your New Year‘s?

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

FREY:  Yes it is.  Very good.

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

A mass of people American pop songs. 

(END VIDEO CLIP)

ABRAMS:  Of course that was all a lie, he wasn‘t at the Eiffel Tower. 

Go ahead, Harriet.  What was the reaction of that juror? 

RYAN:  Well, by the third or fourth or fifth mention of his European trip, his non-existent European trip, she started laughing.  And she was just smiling and shaking her head.  And a couple of jurors were doing it.  But she was the most vocal.

ABRAMS:  Dean, it sounds to me like based on the descriptions we‘ve gotten of these jurors so far, none of them sort of sound like they‘re clearly in the defense camp.  Are there any that are perceived as clearly in the defense camp?

JOHNSON:  No, there aren‘t.  I think the Amber Frey testimony was a watershed.  These jurors might have been leaning towards an acquittal based upon Mark Geragos‘ presentations prior to Amber Frey.  But when Amber Frey started to testify, the three women in the front row in particular, I noticed for the first time, whipped out their notebooks, and started taking elaborate notes.

From that point on, if you just look at the jurors‘ body language, and their expression, they are very clear that they do not like Scott Peterson.  Some of them are making it very, very clear that they do not like anything that Mark Geragos has to say.  I think the momentum shifted at that point in the case.

ABRAMS:  Harriet, any of these jurors that you think are—you know, it sounds like a number of them you think are sort of antagonistic toward Geragos.  Any of them seem very much to like Geragos?

RYAN:  Well, you know, we‘re reading tea leaves here.

ABRAMS:  Totally.

RYAN:  Juror number six is somebody who everyone had always talked about in the first part of the trial as being a defense juror.  And he was picking his nails a lot.  He didn‘t seem to be paying that close attention to testimony.  But things we‘ve seen recently would indicate he‘s either in the middle, or with Sharon Rocha in the prosecution camp.

So, you know, we aren‘t talking about a lot of jurors there.  We have a lot of people who just sit there stone faced, and we can‘t read them at all.

ABRAMS:  Yes.  Yes.  Always tough to predict.  But interesting.  Dean Johnson, Edie Lambert, Harriet Ryan, thanks a lot.

JOHNSON:  Thank you, Dan.

ABRAMS:  Coming up, we know Martha Stewart can‘t drive or run her company from prison.  But she also can‘t vote.  In many states, she‘d never be allowed to vote again.  Is that fair?  Should felons lose their right to vote permanently, even if they serve their time?

And the lawyers are coming to battleground states across the nation, trying to make sure the election is, quote, “fair”.  Why I say our voting system could learn a little something from the National Football League.  It‘s my closing argument.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

MARTHA STEWART, INMATE #55170-054:  America accounts for 25 percent of the world‘s prison population, despite the fact that we have just 5 percent of its population.  I will be joining more than two million other souls who are serving time.

(END VIDEO CLIP)

ABRAMS:  Federal inmate number 55170-054, Martha Stewart.  She‘s lost a lot in the past few years, but did you know she‘s also lost the right to vote?  And she‘s not alone.  Roughly 4.7 million cons and ex-cons will be stripped of their right to weigh in this year with their choice for president.  Forty-eight states, with the exception of Maine and Vermont do not allow felons to vote from prison.  Maine and Vermont do.

Thirty-five states won‘t let parolees vote.  In 31 states, if you‘re on probation, you won‘t vote.  And 14 states permanently bar felons from voting unless they successfully petition to have the right restored, or wait a specified period of time.  Florida, a crucial swing state, among the 14.  It‘s a big deal, if you consider the 2000 election, hanging chads were clearly not the only issue at that time.

There has been a lawsuit filed in Florida to let felons who have served their time vote again. 

My take.  Once you‘ve served your time, we should encourage people to vote.  Voting is not a privilege, it is a right.  If you‘re still serving time, a la Martha, that‘s one thing, then I think you lose a lot of rights, including the right to vote.

But once you‘re out, why shouldn‘t they vote?  If we want them to become productive members of society, what better way to start? 

Joining me now, Jesse Allen, an attorney representing the plaintiff in the Florida suit.  She is in New York.  And joining us on the phone from Fairfax, Virginia, Roger Clegg, vice president and general counsel for the Center for Equal Opportunity, a former assistant solicitor-general in the Reagan administration.

Thank you both very much for joining us.  Mr. Clegg, what is the problem with letting people, ex-cons, vote?

ROGER CLEGG, CTR. FOR EQUAL OPPORTUNITY:  Well, we don‘t let everybody vote in the United States.  We don‘t let children vote.  We don‘t let people who aren‘t citizens vote.  We don‘t let people who are mentally incompetent vote.  We have certain minimum standards of trustworthiness. 

And people who have committed serious crimes don‘t meet that minimum standard.  To put it another way, if you‘re not willing to follow the law, then you shouldn‘t claim a right to make the law for everyone else.

ABRAMS:  Jesse Allen?

JESSE ALLEN, BRENNAN CENTER FOR JUSTICE:  You know, we hear this all the time.  People want to make this an issue of law enforcement.  It‘s not.  It‘s a basic issue of democracy.  People who are convicted of crimes serve their sentences, appropriate sentences meted out by legislature and courts.  We‘re talking here about an additional voting ban.  And allowing people who have fully served their sentences into polling booths harms no one.

CLEGG:  I don‘t agree with that.  I think that you are harming the rest of the people who vote, and who have a legitimate voice in self-government.  Self-government is a very serious business.

ALLEN:  It certainly is.  It certainly is.  Voting is after all, the way that we choose our democratic government.  And when five million people don‘t get to choose, it calls the legitimacy of that government and its policies into question.

ABRAMS:  Mr. Clegg, do you think these ex-cons shouldn‘t even be able to appeal to say look, it‘s been an X amount of time?

CLEGG:  Oh no.  Listen, I think that it‘s fine to have the right to vote restored on a case-by-case basis.  But it should not be done automatically.  It‘s simply not the case, Dan, that once you walk out of prison you can do anything that anybody else can do.  We don‘t let felons possess firearms, for instance.  There are...

ABRAMS:  But there is a difference, right?  You‘re not saying that it is a fair comparison to say—there is obviously a reason why felons can‘t possess firearms.  And the reason for not letting them vote seems a little bit weaker.

CLEGG:  It is a different reason, but I don‘t think it‘s a weaker reason.

ALLEN:  You know, there have been many reasons why people with felony convictions are not allowed to vote in this country.  In Florida, the blanket policy of disenfranchising felons was adopted after the Civil War in a deliberate attempt to disenfranchise newly freed African-Americans.

CLEGG:  That‘s not the law that is on the books now, though.  And there are not any laws on the books in any state that were passed during that period of time with the aim of disenfranchising African-Americans.

Look, these laws have roots in ancient Greece and ancient Rome.  The vast majority of states in the United States disenfranchised felons before the Civil War.  The map that you showed earlier, Dan, you can see this is not just the Deep South that does this.  This is all over the place.

ALLEN:  The majority of states also had poll taxes, and residency requirements before the Civil War.

ABRAMS:  The bottom line, Ms. Allen, look, as I said I‘d like to make it clear so no one says I have a bias one way or the other.  I just tell people what my position is, start it up front, so then we can have the discussion. 

But even though I believe that ex-cons should be able to vote, it is very popular in this country to take away their rights.  So let‘s go to number four here.  It‘s unpopular generally among the electorate to restore voting rights to felons. 

In 1998, more than 80 percent of Utah voters approved a measure to bar inmates from voting.  In 2000, the Massachusetts electorate voted for a constitutional amendment barring felons from voting.  And Massachusetts of course, considered one of the more liberal states in the country.  Why do you think that is, Ms. Allen?

ALLEN:  Actually, there‘s been a trend in the opposite direction.  In the last five years, at least six states have liberalized their laws on voting.

ABRAMS:  But I‘m talking about what the electorate thinks.  I mean,

apart from what the legislature did...-

ALLEN:  There is a recent survey that shows that 80 percent of Americans favor restoring the right to vote upon completion of sentence.  It‘s a good survey.  It was done by two reputable sociologists.  One from the University of Minnesota, Christopher Hugan (ph).  The other from Northwestern.

ABRAMS:  Mr. Clegg, do you buy that?

CLEGG:  No, I don‘t buy that at all.  I think it all depends on how you ask the question.  And the particular sociologist that she just cited is somebody who is very much involved in this push to re-enfranchise felons.

I think this is an issue that is going to vary from state to state.  I agree with you, Dan.  I think that generally most people think that people who are not willing to follow the law shouldn‘t have a say in making the law for everyone else.

ALLEN:  You know...

ABRAMS:  I got to wrap it up, look.  Look, I disagree with that position.  I don‘t think people who are in prison should be able to vote.  I think that can cause too much problems.  They can get involved in local elections, where the sheriff or whoever is up for reelection.  But once you‘ve served your time, I say let them vote.

ALLEN:  Not only that...

ABRAMS:  I got to wrap it up.  Jesse Allen, thank you so much for coming on the program, I appreciate it.  And Roger Clegg, great to have you.

Coming up, Americans either love Bill O‘Reilly or they don‘t like him so much.  But now it looks like many of you are split in your views on the woman who is accusing him of sexual harassment.  Your e-mails coming up.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”.  Why the National Football League may help teach us a lesson on how to limit the number of election-related lawsuits the next time around.  It is too late for this one.  It seems inevitable that if it is close, there won‘t be a concession speech until the lawyers tell that candidate it is over.

Partisan attorneys already duking it out in battleground states over provisional ballots, voter registration, poll identification, et cetera.  And since many election law experts say there‘s at least a 1 percent error rate in our elections, lawyers looking for trouble are going to find it.  Massive litigation in numerous states could follow.  So how about this for a solution?

Something akin to the NFL replay rule.  Football, each side gets one opportunity per half, a total of two per game, to have the referees go back and check the replay, see if the call was correct.  But neither side can make a challenge in the final two minutes of each half, or in overtime.  At those times, only the replay referee can ask for it.

It provides certainty with a recognition that sometimes the wrong call is going to be made.  That challenging every call would just lead to less faith in the refs and maybe in the game.  That‘s what‘s happening to our election system.  People are losing faith in the integrity of the system, because every call is being or will be challenged.  It is not like these problems just popped up in 2000 either.  They were there.

We just accepted the ref‘s calls in the past.  Sure, it‘s different when the elections are this close.  But unlike the NFL replay, we almost certainly end up with the right call.  Here it was said in the recent editorial in “Business Week”, “The lawyers will probably just battle one another to a standstill, driving up costs and aggravation across the board, while doing little to improve American democracy”.

If we accept that we can‘t have a perfect system, and the post-election litigation won‘t help make it better, then maybe, just maybe, our democracy can learn a lesson from football. 

I‘ve had my say.  Now it is time for your rebuttal.  Talk show host Bill O‘Reilly facing allegations of sexual harassment by a long-time associate producer for his show.  The suit lays out graphic descriptions of exactly what she says O‘Reilly did, including demanding that she listen to him engage in phone sex.

Judy Miller asks, “How can someone be forced to have phone sex? 

That‘s the most ridiculous thing I have ever heard”.

From Cleveland, Ohio, Stacy Bogart asks, “What woman would put herself in the national spotlight against someone as scary as O‘Reilly with a false claim?”

Employment attorney Karen Kahane in South Florida addresses the question of whether Mackris was obliged to report the harassment to her superiors.  “In the case of co-worker/co-worker harassment, an employee must complain about the alleged conduct to the extent the employer has a complaint procedure in place.  It‘s not required in the case of supervisor-subordinate harassment.”  

Also last night we debated an initiative on the November ballot in Colorado that would divide the state‘s nine electoral votes according to each candidate‘s proportion of the popular vote, instead of winner gets all.

I said it would be unfair to have one state with a different system. 

Many of you e-mailing me saying I made a big mistake.

Charles Zigmund, Pleasantville, New York.  “Mr. Abrams was plain wrong today when he said that if Colorado adopts proportional electorate voting, it would be the only state to do so.  Mr. Abrams should inform himself of the facts before making statements on his show”.

Wayne, Nebraska, Zak Hookstra, “Your statement about Colorado would be the only state to apportion their electoral votes is wrong.”

Edith Teague: “Colorado is not the first state to contemplate splitting their electorate votes.  Maine (with four electoral votes) and Nebraska (with five electoral votes) already doing so.  So what‘s the big deal?”

All right.  I said “every other state doesn‘t allow a popular vote where your vote is necessarily one vote, one person.”  That‘s true.  In fact, I correctly pointed out that no other state even has an electoral system that is purely proportional.  That‘s true. 

In both Maine and Nebraska, which many of you point to, which have four and five electoral votes, they still award the winner of the state two electoral votes, and then apportion the other two or three votes, based on who won in the congressional district.  That is not the proportional system Colorado is proposing. 

Your e-mails.  Thanks for watching.  Chris Matthews, HARDBALL, up next.  See you next week.

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

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