updated 10/19/2004 10:17:12 AM ET 2004-10-19T14:17:12

Guest:  Daniel Horowitz, Leslie Crocker Snyder, Yale Galanter, Michael Cardoza, Kathleen Peratis, Robert Cohen, David Sheldon, James Carafano

DAN ABRAMS, HOST:  Coming up, as Scott Peterson begins his defense, a lawyer close to his defense team says he‘s been asking Peterson questions, possibly in preparation for Scott Peterson to take the stand.  I didn‘t buy it and I still don‘t. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  A frequent guest on this program claims to have spent hours with Scott Peterson asking him the tough questions, possibly to prepare him for his testimony.  But is this just more defense spin, an effort to make prosecutors think Scott Peterson might actually take the stand? 

And both Fox News host Bill O‘Reilly and the woman accusing him of sexual harassment amend their lawsuits.  Now his former producer says the network wants to fire her for making the allegations. 

Plus, they called it a suicide mission.  The Army calls it a direct order.  U.S. soldiers in Iraq refuse to deliver fuel, saying it wasn‘t safe and they didn‘t have a proper-armed escort.  Now the investigation is on.  Do the soldiers have any right to refuse an order ever? 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket, the defense begins its case in the Scott Peterson trial today.  But before we go to the courthouse for a live report, before court, a bombshell announcement today from a lawyer close to defense attorney Mark Geragos.  And if you have not been following the case closely, it might lead you to believe Scott Peterson might very well testify in the case.  Here‘s what Michael Cardoza had to say on the “Today” show this morning. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Most experts say that they find it highly unlikely that Scott Peterson himself will testify.  You have some insight into that that you can‘t really discuss I guess. 

UNIDENTIFIED MALE:  That‘s true.

UNIDENTIFIED FEMALE:  You actually met with Scott Peterson over the weekend? 

UNIDENTIFIED MALE:  I did.  The defense came to me and consulted with me and asked my help in deciding whether to put Scott Peterson on the stand.  Now the ultimate decision is theirs, and I certainly did not advise them whether to put him on or not, but we did discuss it. 

(END VIDEO CLIP)

ABRAMS:  “My Take”—I don‘t buy it for a minute.  This decision was made a long time ago.  The jury will not hear from Scott Peterson.  This is all defense spin.  An attorney as smart as Mark Geragos wants everyone to believe he‘s toiling over the decision whether to call Scott Peterson, that Peterson is jumping out of his seat to tell the jurors the truth.  He would love to have prosecutors preparing for the cross. 

It‘s not going to happen.  And if it‘s not pure spin, then it‘s just to convince Peterson it‘s not in his interest to testify.  From O.J. to Martha, defendants are often cross-examined by attorneys to convince them they don‘t want to take the stand.  But here‘s what I don‘t understand.  Cardoza also says he‘s also not part of the defense team and therefore not subject to the gag order, but does that mean he can be subpoenaed to testify about what he heard. 

Joining me now, criminal defense attorney Daniel Horowitz who‘s been in court today and for most of the trial, NBC News legal analyst and former New York state judge Leslie Crocker Snyder, and criminal defense attorney Yale Galanter.  Now, Michael Cardoza had been scheduled to appear on the program, but we‘re not exactly sure what happened.  At the last minute he appears to have backed out.  What we don‘t know is whether Mark Geragos advised him not to appear on the program for fear that my questions might be a little tougher than he‘s going to be comfortable with at this time.  We don‘t know that right now. 

All right.  Daniel Horowitz let me start with you.  First of all, do you agree with me that this is a charade to suggest that Mark—that Scott Peterson might take the stand? 

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  It‘s not going to happen.  He will never take the stand.  Your analysis introducing the segment was completely on the mark.  Maybe Scott, the same man who ignored his attorneys and spoke to the press, spoke to Ted Rowlands, Gloria Gomez, Diane Sawyer is thinking that he can fool this jury.  And if so, Cardoza is the right fellow to beat the heck out of him and tell him you can‘t hold up.  Now Dan, I‘ve been in the courtroom and I‘ve been speaking to Michael Cardoza and I think he‘s thinking very carefully about what his next move is because he is certainly ethically under California law now a member of that defense team. 

ABRAMS:  And Yale Galanter, yet he‘s saying that he‘s not.  You heard him just there a moment ago in the sound bite say I didn‘t advise him as to what‘s going to happen.  I didn‘t tell them what they should, but I mean if the guy is questioning Scott Peterson, I mean, either he‘s going to be subjected to subpoena and therefore have to testify against him or he has got a special privilege like being an attorney as part of the team. 

YALE GALANTER, CRIMINAL DEFENSE ATTORNEY:  Dan, I agree with you 100 percent.  I have a lot of respect for Michael but I think his comments on Katie‘s show this morning were misplaced.  He wants to be a member of that defense team, because if he‘s not a member of the defense team, those prosecutors are going to subpoena him, question him and learn every single conversation he had with Scott Peterson, his questions, his answers, and they‘re going to use him and get to Scott in that fashion, so he needs that defense attorney privilege to keep those conversations privileged... 

ABRAMS:  All right.  Before I go to Judge Snyder, here is Judge Snyder and Michael Cardoza going at it a little bit on the “Today” show this morning about this. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Can you tell us outside of meeting with him if you were giving them advice, what would you say? 

UNIDENTIFIED MALE:  Well you know I really can‘t say because I didn‘t give them advice that way... 

UNIDENTIFIED FEMALE:  No, but I‘m saying if you had to give them advice theoretically here today. 

UNIDENTIFIED MALE:  Well, theoretically then gets into what I may actually have done, but what you do is...

UNIDENTIFIED FEMALE:  You‘re such a lawyer. 

UNIDENTIFIED MALE:  ... you talk about the pros and cons of it.  You talk about the pros and cons.  Have they proved their case beyond a reasonable doubt? 

UNIDENTIFIED FEMALE:  Michael, you would never put him on.  Come on. 

You wouldn‘t...

(CROSSTALK)

UNIDENTIFIED FEMALE:  ... put him on in a million years. 

UNIDENTIFIED FEMALE:  Would you?

UNIDENTIFIED MALE:  I‘ll tell you Judge that decision truly will not be made until the end of the case.  Would I put him on?  Maybe not—maybe.  It depends what they know. 

(END VIDEO CLIP)

ABRAMS:  Judge Snyder, that‘s the same spin that Cardoza gave—I like Michael a lot, by the way—just it‘s the same spin he gave to me when I was on the “Today” show with him and he was on this show, you know, it‘s—suddenly he can‘t talk about the case.  I mean he was asked by Katie there, you know, what would you—what would go into your decision and he‘s talking as if he‘s one of the lawyers on the team now. 

LESLIE CROCKER SNYDER, FORMER NY STATE JUDGE:   Well, you know, as you pointed out, he‘s got a real problem and as far as I can see, if he was consulted, he really is a member of the defense team, whether he wants to say that or not, he is, and therefore he should not be subject to being subpoenaed by the prosecution and obviously Geragos isn‘t going to let that happen.  But it‘s not just—I mean I agree with you totally, it‘s complete spin, it‘s going to try to freak the prosecutors out, which, you know, he‘s handled them pretty well, especially the first two-thirds of the trial, so I think that‘s his point and he‘s just being cute.  He‘s being everything that a good lawyer might be, but that the public hates in lawyers, you know. 

ABRAMS:  Yes.

CROCKER SNYDER:  He doesn‘t want to give a straight answer, but you know, let‘s not forget one point.  In a way it‘s a lot of baloney, but technically it is the defendant himself who decides whether he will take the witness stand.  Obviously, any good lawyer has his client under control, but let‘s not forget that.  It‘s not the lawyer who decides, it is the client. 

ABRAMS:  Yes.  Yale, you agree with us, right, that there‘s no chance Scott Peterson is going to testify, right? 

GALANTER:  Dan, Leslie, not only do I agree with you that there‘s no shot he‘s going to testify, if Geragos put him on I think that some of the legal commentators in that courtroom would get up, try and tackle him before he got on the witness stand.  It would be the worst move that Geragos and Peterson could make in this trial.  Dan, no way, no how...

ABRAMS:  And let me just be clear.  Let me go around very quickly.  Does everyone agree with me about this?  This is what Michael Cardoza and I, again, not sure why he didn‘t want to come on the program today, he was booked to come on, decided not to come on, but he and I have disagreed about this issue and that is that I‘ve said there‘s no question the decision has already been made and you heard him on the “Today” show again saying the decision hasn‘t been made.  Very quickly, yes or no, Daniel Horowitz, do you agree the decision has been made and there‘s just no question he‘s not testifying? 

HOROWITZ:  Completely.  It‘s been made and Geragos has complete control over Scott.  Even the way...

ABRAMS:  Yes.

HOROWITZ:  ... he smiles, walking into the courtroom.

ABRAMS:  Judge Snyder.

CROCKER SNYDER:  Absolutely. 

ABRAMS:  Yale.

CROCKER SNYDER:  There‘s not a chance. 

GALANTER:  Absolutely agree with you 100 percent...

ABRAMS:  That the decision has been made, right...

(CROSSTALK)

ABRAMS:  The decision has been made...

(CROSSTALK)

ABRAMS:  Right.  OK.  All right.  Let‘s take a quick break here.  All of you, if you could just stand by because what I want to do is I‘m going to assume for a moment, because, you know, saying—let‘s assume for a moment he‘s actually going to take the stand.  How will the defense explain what I‘m going to call Scott Peterson‘s big whoppers—the apparent lies he told friends and family after Laci disappeared, his alibi.  Telling some he was golfing, others he was fishing.  Why did he need to lie to his own mother about where he was calling from?  How would he explain those things if he took the stand?

And Fox News now asking the court for permission to fire the woman who accused Bill O‘Reilly of sexual harassment.  They say she abandoned her job as O‘Reilly‘s producers.  She says it‘s retaliation for filing the claim.

Plus, soldiers in Iraq refuse to obey an order saying it was a suicide mission.  Is there ever a time when they can do that?  Just say no, we don‘t want to—we just can‘t do it.  We‘ll debate.

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, we may have Michael Cardoza showing up to appear on the program.  He‘s the one at the center of the storm in the Scott Peterson case.  I‘m told he‘s walking up to the camera.  We‘ll see in a moment. 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

MICHAEL CARDOZA, CRIMINAL DEFENSE ATTORNEY:  I did not advise them.  I did not tell them what I thought they should do with Peterson‘s testimony.  I didn‘t say put him on—don‘t put him on.  I didn‘t say he answered that question incorrectly.  I gave them no advice at all.  When I was through I left.  The decision to put him on the stand will be the defense‘s. 

(END VIDEO CLIP)

ABRAMS:  Michael Cardoza, a defense attorney who is also an NBC News analyst there talking about the fact that he had an opportunity to question Scott Peterson.  It seems like at the defense‘s request.  I had said earlier that Michael had scheduled to come on the show.  I said that he had backed out.  Apparently he has not because he‘s now sitting in the chair so he gets the credit for coming. 

Michael, good to see you.  Thanks for coming on.  Appreciate...

CARDOZA:  Hi Dan.  How are you?

ABRAMS:  All right.  Just want to give you a little summary as to what‘s happened so far.  All of our guests, Daniel Horowitz...

(CROSSTALK)

ABRAMS:  ... Leslie Crocker Snyder, Yale Galanter, two defense attorneys, one prosecutor, former judge, all believe that “A”, it‘s spin, the idea that Scott Peterson really may take the stand, but more importantly, “B”, they believe that you are—must be effectively now a member of the defense team, because if you are not and you questioned Scott Peterson, you could be subpoenaed by the prosecutors to testify.  Your answer. 

CARDOZA:  Well, if they want to subpoena me go ahead, subpoena me.  But what I did was last week during the break I was asked by the defense to come in and cross-examine Peterson.  One of the stipulations that I agreed to with them, if I did it for them, that I would tell that I was doing it.  I wasn‘t going to hide it from the media, wasn‘t going to have something like that come up later and say hey, wait a minute, you commented on this case and you didn‘t tell people.

So that‘s one of the things that they agreed to if I were to do that.  What I did was I met with them, with the attorneys, did not talk about my cross-examination.  Remember, I was a district attorney for 15 years.  I went in, I cross-examined, when I was through, I left.  Whether they liked it, didn‘t like it, I have no idea.  Gave them no advice on what to do and I was forthright with the media in what I did. 

I know people are saying I shouldn‘t have done it or vilifying me about it.  That‘s fine.  There‘s nothing unethical about it.  I went, I did it, and I told that I did it after so everybody could put my comments in perspective if they chose to do that. 

(CROSSTALK)

CARDOZA:  Am I on the defense team?  No. 

ABRAMS:  The gag order...

CARDOZA:  ... in to chambers...

ABRAMS:  The gag order issues...

CARDOZA:  ... chambers...

ABRAMS:  Yes.  The gag order issues I have to tell you don‘t matter to me.  The issue of whether you should be speaking out...

(CROSSTALK)

ABRAMS:  ... or not to me those are side issues as to whether speak out or not speak out.  That‘s not what I care about.  But the idea...

CARDOZA:  All right.

ABRAMS:  ... of, you know, of you—you‘re saying you didn‘t talk to the defense team and therefore give them advice.  You‘ve got to believe, though, that going in and cross-examining Scott Peterson is providing the defense team with advice and counsel. 

CARDOZA:  Well, it depends how you look at that.  I certainly did the job of a district attorney in there, in cross-examining...

ABRAMS:  I‘m sure you were good. 

(CROSSTALK)

ABRAMS:  I‘m not questioning whether you were good. 

(CROSSTALK)

ABRAMS:  I bet you were great actually...

CARDOZA:  I assume they took something from it...

ABRAMS:  Yes.  I‘m sure they took something from it too...

CARDOZA:  And I assume they took something from that, all right?  So if people think I‘m on the team, the judge apparently doesn‘t, so he didn‘t gag me when we were in chambers in front of the D.A. and in fact I told them if there were any witnesses of theirs that they wanted me to cross-examine, I‘d be happy to do that for them. 

ABRAMS:  Yes...

CARDOZA:  I said come on, bring them on...

ABRAMS:  Yes...

CARDOZA:  ... I‘ll do them for you too.  So now people are saying, come on, what attorney in the United States, if asked would say no, gosh, I‘m busy.  I don‘t want to cross-examine Scott Peterson...

ABRAMS:  No, but he would say I‘m part of the team...

CARDOZA:  ... come on...

ABRAMS:  He‘d say—but he would then say I‘m part of the defense team and therefore...

CARDOZA:  Dan, if people think I‘m part of the team, because of that and that‘s why I came out, and I told people, I was honest, I came out and I told people look, I‘m not commenting on the case right now.  I am going to tell you all, the press and the public, what happened.  I told them if stations want to have me on or want to hear my comment from now on, so be it.  If they don‘t, they can make their choice.  I wanted to arm them with what I did, so I was honest about it, that‘s what I did.  If people criticize that, so be it.  What did you want me to do, hide it everybody?  No, I wouldn‘t do that.

ABRAMS:  What will you say about—what can you say about what happened between you and Scott?  I know you can‘t talk details, again, that makes you think it‘s kind of part of the team, but regardless...

CARDOZA:  No, the judge told me not to. 

ABRAMS:  How can...

CARDOZA:  No, the judge told me not to.

ABRAMS:  ... the judge can subject—can only tell you the only thing you‘re not allowed to talk about is something you talked to Scott Peterson about when you‘re not part of the defense team? 

CARDOZA:  He said you‘re not to talk about that in the press and I said I wouldn‘t talk about it anyway.  I wouldn‘t talk about it this morning when I was on the “Today” show. 

ABRAMS:  Yes.

CARDOZA:  I wouldn‘t talk about it.  I wouldn‘t talk about it whether the judge told me or not. 

ABRAMS:  That I know...

CARDOZA:  Everybody—all the pundits can go as up in the air as they want, they can say what they want.  I did it.  I came out.  I was honest about it.  If people don‘t want me to be a legal analyst in this case, that‘s fine. 

ABRAMS:  Yes, again...

CARDOZA:  ... opportunity...

ABRAMS:  Let me bring in Leslie Crocker Snyder.  I have to tell you, again, I really...

CARDOZA:  Sure.

ABRAMS:  ... am not that interested in the gag order issues, about whether he should—those are media issues.  That‘s a question of should media organizations, you know, do X, Y, or Z.  That‘s to me less interesting than the question of the cross-examination of Scott Peterson and the role of Mr. Cardoza.  You wanted to jump in there, Leslie.  Go ahead...

CROCKER SNYDER:  Yes.  Well, you know, Michael, I‘m just surprised at how defensive you are because everyone likes you and respects you.  I think we‘re all concerned about what you did with Scott Peterson in terms of—can you hear me...

CARDOZA:  Yes I can.  I‘m listening...

CROCKER SNYDER:  ... of what that does to you, in terms of whether you could possibly be subpoenaed by the prosecution or whether it can be used in some way and we‘re all just kind of saying, well what—isn‘t this kind of an unusual thing, and legally, even though you don‘t consider yourself outright to be part of the prosecution team, it—I mean, the defense team, it may put you in that position.  We‘re all concerned about it and interested...

(CROSSTALK)

CROCKER SNYDER:  ... in it as a legal issue.  It‘s not a...

ABRAMS:  Let him respond.

(CROSSTALK)

ABRAMS:  Let me let Michael respond.  Go ahead. 

CARDOZA:  Let‘s go back, for example, to the O.J. case.  I know the two attorneys from the Oakland area, the two women...

ABRAMS:  Absolutely...

CARDOZA:  ... who went down and cross-examined O.J. 

ABRAMS:  ... considered part of the defense team. 

CARDOZA:  Were they subpoenaed?  No...

ABRAMS:  But they were considered part of the defense team. 

CARDOZA:  ... they weren‘t subpoenaed...

ABRAMS:  But they were considered part of the defense team...

CARDOZA:  Well, all right...

CROCKER SNYDER:  Again, it‘s more of a concern...

CARDOZA:  If they want to...

ABRAMS:  I want to let him respond.  Go ahead Michael.

CARDOZA:  All right.  If they want to subpoena me, I‘m certainly here to be subpoenaed.  Subpoena me. 

ABRAMS:  All right.

CARDOZA:  Bring me in.  I have no problem with that.  If the defense wants to argue I‘m part of the defense team, that‘s up to them.  They were the one that started this ball rolling.  Certainly I agreed to it. 

ABRAMS:  All right.

CARDOZA:  Like I said, what attorney wouldn‘t want to go in and cross-examine Scott Peterson given this opportunity...

ABRAMS:  Let me take a quick break...

CARDOZA:  If you walked away from this, I‘d say you‘re not a trial attorney. 

ABRAMS:  Let me take a quick break here.  I know everyone else wants to jump in here.  We‘re also going to get to the issue of whether it‘s just spin, the idea that Scott Peterson actually wants to take the witness stand.  I say as all my guests agreed with, the decision has been already been made, it‘s a non-issue.  This is just—but we‘ll talk to Michael about that as well. 

And Fox News is going to court to fire the woman bringing sexual harassment allegations against him—who‘s filed the case against him, but as a matter of law, can they do that?  It‘s coming up.

(COMMERCIAL BREAK) 

ABRAMS:  We‘re back with the man who is at the center of a storm in the Scott Peterson trial.  Michael Cardoza, who is an attorney and NBC News analyst, has admitted today that he had an opportunity to do a mock cross-examination of Scott Peterson, leading to a lot of questions about Michael Cardoza‘s role and more importantly...

CARDOZA:  Dan...

ABRAMS:  ... in my mind—let me just finish this—more importantly in my mind what that says about whether Scott Peterson is going to testify.  Go ahead Michael. 

CARDOZA:  All right.  I want it to be real clear.  I‘ve commented on this case right up until the time that the defense asked me and this was during the week that the trial was off to do the mock cross-examination.  So up until that time, I hadn‘t been asked anything by the defense.  When they asked me that, I did it during the off week, I came back immediately Monday and revealed it.  So at no time did I make any comments...

ABRAMS:  All right.

CARDOZA:  ... while they—you know, before they asked me to do that. 

So I want to be real clear about that...

ABRAMS:  And you won‘t comment on how he did, right, on cross-examination? 

CARDOZA:  Absolutely not. 

ABRAMS:  OK.

CARDOZA:  No, absolutely not.

ABRAMS:  All right.  Let me ask you this.  All of my guests, all of them, and just about every single one who has appeared on this program except for you, and now—you know, now you have a particular understanding of this, but all of us believe that there is no chance that Scott Peterson is going to take the stand and in fact, that this is either just an effort by Mark Geragos to spin it in the media, to say look, we had Michael Cardoza there cross-examining him effectively to say look we‘re serious about this, or “B” just to convince Scott Peterson he doesn‘t want to testify, but we all agree that the defense is not seriously considering calling Scott Peterson to the stand. 

CARDOZA:  All right.  Let me ask this.  Of all the attorneys you have on that are defense attorneys, would you bring someone else in to cross-examine him, to see, number one, how he does, number two, perhaps to convince him not to do it? 

ABRAMS:  Sure. 

CARDOZA:  To spin it out with the media.  Heck, you don‘t have to do that, everybody is speculating anyway.  This doesn‘t add any more credence to it...

ABRAMS:  Oh sure it does...

CARDOZA:  ... any less credence...

ABRAMS:  Sure it does.  The idea...

CARDOZA:  No it doesn‘t...

ABRAMS:  ... the idea that an esteemed attorney like yourself is going in and cross-examining Scott Peterson, the idea would be let‘s make it seem like we‘re serious about this and yet—Daniel Horowitz a minute ago said there‘s just no way. 

(CROSSTALK)

ABRAMS:  Go ahead Daniel.

CARDOZA:  All right.  But Dan, I was a district attorney...

ABRAMS:  Yes.

CARDOZA:  ... and I know in every case, I prepared to cross-examine the defendant. 

ABRAMS:  And that‘s the point.

CARDOZA:  I never knew whether he was going to take the stand. 

ABRAMS:  They want the prosecutors to believe it. 

CARDOZA:  So, are they going to do it?  Sure.  Fine.  Make them prepare. So what?  What‘s that do for their case?  They have got three of them in the courtroom.  They‘re going to take one of them and say prepare for the cross, the other two can concentrate on the expert...

ABRAMS:  Yes...

CARDOZA:  ... so I don‘t see that Geragos is really spinning this that way...

ABRAMS:  Oh Daniel...

CARDOZA:  I really don‘t.  Maybe people are wrong...

ABRAMS:  I see it as pure spin, Daniel Horowitz.  Go ahead. 

UNIDENTIFIED MALE:  OK.  Well...

HOROWITZ:  Here‘s why.  The same top prosecutor, Berger Flagodo (ph), who should do closing also should cross Scott, so if she‘s doing two things at once, she can‘t do either well.  If they‘re forcing Dave Harris to prepare the closing and he‘s the only other one, then they‘ve really got them in a...

ABRAMS:  Leslie, very quickly...

CROCKER SNYDER:  Yes.

ABRAMS:  ... if you‘re the prosecutor in this case, do you even go through the long process of preparing the entire cross-examination of Scott Peterson or do you just basically say it‘s not going to happen? 

CROCKER SNYDER:  No, you have you to be prepared because you just never know.  I think it‘s a little ludicrous, but I do think it‘s done partly to distract the prosecution and—however, a good prosecutor would be prepared for cross a long time before this. 

ABRAMS:  Yes.  That‘s true.  All right.  Let me take a quick break here. 

(CROSSTALK)

ABRAMS:  We‘re going to come back and I‘m going to go through some of the reasons Scott Peterson cannot testify.  We‘ll also talk about what happened inside the court, day one of the defense‘s presentation.  We‘ll get a report from the courthouse. 

And first, she accused Bill O‘Reilly of sexual harassment, now his former producer says Fox is trying to fire her for coming forward with her story.  Can they do that? 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, the woman accusing Bill O‘Reilly of sexual harassment now says Fox is trying to get her fired.  The question, can they do that?  First the headlines. 

(NEWS BREAK)

ABRAMS:  We‘re back.  We‘re talking about the Scott Peterson case and some developments, which are posing the question of might Scott Peterson really take the witness stand?  I have said no way.  Let me lay out why before we go back to the panel.  Here are some of the whoppers that—I‘m just going to call them—that Scott has told that I think that he really just can‘t explain on the witness stand. 

Some of them he can explain.  These I think he has trouble.  The fact that to some people when he came back from fishing on the day Laci disappeared, he said he was fishing, to other people he said he was golfing.  That he lied to family members at times about his whereabouts.  That he told Amber Frey he had lost his wife two weeks before she disappeared.  That he used his mother‘s name to buy a car and had had $15,000 in cash with him.  He sat in a mall parking lot for about 45 minutes according to one witness when he said he was going to be out hanging flyers.  And maybe I think most importantly that he called Amber Frey only moments before his wife‘s vigil was going to begin.  Here‘s at least one of the conversations Scott Peterson pretending that he is in Paris 10 minutes before the vigil. 

(BEGIN AUDIOTAPE)

AMBER FREY, SCOTT PETERSON‘S FORMER GIRLFRIEND:  How was your New Years Eve?

SCOTT PETERSON, ON TRIAL FOR MURDER:  It‘s good.  I‘m just (UNINTELLIGIBLE) everyone‘s in the bar now so I came out in an alley, a quite alley.  Isn‘t that nice?

FREY:  Yes, it is.  I can hear you.

(LAUGHTER)

FREY:  Very good. 

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

A mass of people playing American pop songs.

(END AUDIOTAPE)

ABRAMS:  Of course he wasn‘t at the Eiffel Tower.  Yale Galanter, that‘s where I think—I mean, you can talk about the fact that he can explain away some of the stuff with Amber Frey, he can explain away, you know, a lot of it.  He could say, you know, for example with the nursery the fact that it appeared according to the authorities that his nursery was filled with storage, he had said I can‘t go in there.  He could say look other people put that stuff in there.  But things like the sound bite I just played, I don‘t see how he can explain it. 

GALANTER:  Dan, you‘re 100 percent right.  It‘s legal suicide to even contemplate putting this guy on the stand.  And I guarantee you when Michael spent time with him alone and cross-examined him, he pointed that out and he absolutely crucified him.  I just want to go back to one point as to why I believe you‘re accurate and this is a defense spin tactic. 

Out of all the lawyers they could have picked to help them with this, they picked a guy who would have to disclose it, someone who is very well respected, someone who is in front of the camera all the time and that created the spin.  They could have picked any other lawyer and most lawyers who do this, I‘ve done it, I‘ve participated in it, and the only agreement I had with my colleagues is that nobody would ever know about it. 

ABRAMS:  Right.

GALANTER:  So it‘s the complete opposite.  Most defense lawyers who do this in preparing their clients don‘t want a public announcement.

ABRAMS:  That‘s right.  Michael, what about that?  I mean that‘s true. 

CARDOZA:  Well, I was the one that brought that up.  In fact, they talked about maybe not disclosing it, and I said I wouldn‘t do it under those...

ABRAMS:  But why have you do it?  Why not have someone who is not on TV every day, if all they want to do is do this in private and not have anyone find out about it, why not just get another attorney?  You know, there are a lot of great attorneys out there who aren‘t giving commentary on the case every day, who could certainly study up on it, like the O.J.  Simpson women did, why not do it like that?  That‘s why it feels like spin here. 

CARDOZA:  Well, number one, they were out of money.  I didn‘t charge them to do this at all, so there was no fee involved.  Number two, I know the case very well.  I could prepare quickly to do it.  I assume those were some of the reasons that they wanted me to do it.  Plus, I was a district attorney for 14 years...

ABRAMS:  But there are a lot of people who were district attorneys...

CARDOZA:  ... used to cross...

ABRAMS:  You know, I mean...

CARDOZA:  I understand that.  You asked me some of the reasons...

ABRAMS:  Right.  No, but I‘m not questioning...

(CROSSTALK)

ABRAMS:  ... why they would use you.  You‘re getting me wrong if you think I‘m saying why would they use Michael Cardoza...

CARDOZA:  No, I‘m not...

ABRAMS:  I‘m saying why wouldn‘t they use somebody else because Michael Cardoza is on TV all the time if they‘re not trying to spin it? 

CARDOZA:  They may well be trying to spin it.  Certainly when I spoke with them and they didn‘t want it disclosed, they talked in those terms...

ABRAMS:  Yes.

CARDOZA:  ... don‘t tell anybody, you know this case better than anybody.  We know your reputation as a cross examiner...

ABRAMS:  Yes.

CARDOZA:  ... we can‘t afford to pay anybody.  Will you do it?  Only if I can disclose it.  Believe me...

ABRAMS:  Yes.

CARDOZA:  ... there was a little battle that went on there, but those are the only terms under which I would do it.  Remember...

ABRAMS:  Leslie...

CARDOZA:  ... they had to go back to the county to get money...

ABRAMS:  Let me give Leslie the final word on this.  I‘ve got to move on from this...

CROCKER SNYDER:  Well, OK, you know I agree with everything that‘s been said.  I just want to come back to one point, though.  If we focus on Scott Peterson for a moment, he‘s a total sociopath.  Maybe he honestly believes he can answer your question, Dan, because he thinks that he can talk his way out of anything. 

ABRAMS:  Yes.

CROCKER SNYDER:  And maybe Geragos has to persuade him that, but I personally believe it‘s total spin and Geragos is just a very clever mind game player and he‘s mind gaming the prosecution. 

ABRAMS:  All right.  Let me go in to what actually happened in court today.  First day of the defense presenting its case and for that at the courthouse, KCRA reporter Edie Lambert is standing by with the latest.  Hey Edie.

EDIE LAMBERT, KCRA REPORTER:   Hi Dan.  The first thing that Mark Geragos did today was ask the judge to dismiss the case against Scott Peterson, saying that the prosecutors did not present enough evidence for the jury to convict.  This is a routine motion, the judge considered it in open court for about a minute before saying forget it, no, and then went on to the first witness of the day. 

Now much of the testimony today has centered around the concrete evidence and let me just remind you what‘s at stake here.  Scott Peterson admitted that he made one concrete anchor from an 80-pound bag of cement mix and said he used the rest of that mix on his driveway.  Prosecutors say he used the concrete to make four more anchors and used those to weigh down his wife‘s body in the San Francisco Bay.  At this point it is a battle of the experts and a battle of the concrete samples taken from the driveway area.  The prosecutor‘s sample does not match the anchor according to their expert.  The defense‘s sample taken from the driveway just last month, by the way, does match the concrete and the anchor according to their expert. 

Another battleground will be whether Laci Peterson was walking at the time that she disappeared.  Prosecutors say she wasn‘t walking at that point.  Today a defense investigator set the stage to show that she was walking good distances and even upstairs.  Now there was sort of a mystery in court.  Apparently a juror wrote the judge a letter, the judge said that he shared that letter with the attorneys involved and immediately put it under seal.  We don‘t have information about the content of that.  And I can tell you at this point, Martin Lauffer (ph) has taken the stand for the defense, he‘s an accountant, talking about the Petersons‘ finances.

Back to you Dan.

ABRAMS:  All right.  Edie Lambert, we‘re going to keep checking in with you as to what‘s been going on.

Daniel Horowitz, Leslie Crocker Snyder, Yale Galanter, and Michael Cardoza gets credit for coming on the program and taking on everyone‘s questions.  So thanks Michael.  Good to see you.

CARDOZA:  You‘re welcome Dan.

ABRAMS:  Coming up, both Fox News host Bill O‘Reilly and the woman accusing him of sexual harassment amend their lawsuits.  Now his former producer says the network wants to fire her for making the allegations. 

And they‘re supposed to follow orders, but one group of reservists in Iraq has refused, saying the orders put their lives in danger and jeopardized a U.S. mission in Iraq.  The military is investigating.  Question:  Did the soldiers have any right to refuse even if it was as they said a—quote—“suicide mission”.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  There‘s some big developments in the case of Bill O‘Reilly and the sexual harassment case that has been filed against him.  Before we talk about some of the legal issues, here‘s NBC‘s Anne Thompson. 

(BEGIN VIDEOTAPE)

ANNE THOMPSON, NBC NEWS CORRESPONDENT (voice-over):  Andrea Mackris was served papers about her potential firing Friday evening.  She told CNN‘s Anderson Cooper a man snuck into her building and approached her as she entered her apartment. 

UNIDENTIFIED FEMALE:  Physically, hit me in the chest with papers and said you‘ve been served.  I let them fall to the ground and I said, no.  I don‘t accept this. 

THOMPSON:  Sources familiar with the filing say Fox News is asking the court to rule if Fox fires Mackris, it is not in retaliation for her sexual harassment lawsuit.  In a written statement Fox News explained it wants the court to determine if Mackris‘ allegations are valid. 

Quote—“We have also asked the court to advise Fox News about the possible termination of Ms. Mackris‘ employment.  Ms. Mackris is still employed and on the payroll of Fox News—end of quote.”

Mackris filed her lawsuit last week after O‘Reilly and Fox News sued her for extortion, claiming Mackris and her attorney wanted $60 million in hush money, but Mackris says what‘s happened only illustrates why she felt threatened. 

UNIDENTIFIED FEMALE:  It is frightening, they are threatening me, they are trying to intimidate me.  Yes, I‘m rattled.  But I‘m really strong. 

THOMPSON:  Vowing to fight a powerful man, and network. 

Anne Thompson, NBC News, New York. 

(END VIDEOTAPE)

ABRAMS:  “”My Take””—it‘s kind of absurd to think that this woman would be back at work after everything that‘s transpired, you know, with her and O‘Reilly working together.  If she wins the lawsuit, she may be entitled to pay, I mean pay that she would have received, et cetera.  But for now I would think Fox has to be able to say this relationship is over.  Am I wrong? 

Joining me now, Kathleen Peratis and plaintiff attorney for employment law cases and employment law defense attorney Robert Cohen.  Thanks both very much for coming in.  Ms. Peratis, am I wrong about this, that Fox has got to be able to say look we obviously can‘t have a working relationship right now. 

KATHLEEN PERATIS, EMPLOYMENT LAW ATTORNEY:  No, you‘re not correct.  Fox has apparently put her on a paid leave and that‘s the appropriate thing to do.  Firing her is nothing but retaliation. 

ABRAMS:  Mr. Cohen.

ROBERT COHEN, EMPLOYMENT LAW ATTORNEY:  Actually I agree with that statement. 

ABRAMS:  Yes.

COHEN:  It is appropriate to put her on a paid leave.  What happened here, however, is they put her on a paid leave in early October, she comes in and she clears out all of her stuff out of her desk and she sends an e-mail to colleagues telling them she‘s gone and forwarding—giving them a forwarding address. 

ABRAMS:  She—doesn‘t she have to express some desire to stay there, I mean, you know they can‘t say, oh, you know, even if you cleared out your desk, et cetera and again, that‘s what they claim, but if she‘s cleared out her desk, seems to me that she‘s effectively saying this relationship is over and she‘s recognizing that she‘s not going to be working there? 

COHEN:  I think that‘s what she should have done.  What she did instead was basically give Fox an out.  She‘s effectively abandoned her position and what Fox is doing is they‘re asking the court, hey, we‘re still paying her right now, but if we stop paying her, you—please don‘t construe that as retaliation, because she left. 

PERATIS:  She‘s...

ABRAMS:  Go ahead Ms. Peratis.

PERATIS:  She is entitled to do whatever she wants with her personal things.  If Fox fires her, it‘s retaliation.  She is entitled to be on a paid leave while they investigate.  Once they‘ve concluded their investigation, it will be a matter of negotiation between her and Fox as to whether or not her employment relationship will continue...

ABRAMS:  But this is not an investigation.  You make it sound like she‘s reported it to H.R. and they‘re investigating.  This is not an investigation...

PERATIS:  Well, in effect, she did report it.  She reported it through her lawyer before she filed the lawsuit.  For Fox to say that she never reported it before she filed the lawsuit is simply not true. 

ABRAMS:  Oh come on.  That‘s not reporting in the way that it‘s interpreted to be in the law.  Handing someone a potential lawsuit and saying this is what we‘re going to do is not notice, as is required.  I mean it‘s not necessarily required in this case because he‘s a supervisor...

PERATIS:  Well, let me make a point that I think is very important.  It is usually the case when I speak to someone who believes that she has a claim for sexual harassment or anything else that she spends about 75 percent of the time telling me what happened in the last day or two.  That is not 75 percent of what is the most relevant set of facts.  What‘s relevant in this case is what went on before she filed her lawsuit, before she reported it to Fox News. 

(CROSSTALK)

PERATIS:  That‘s what‘s really significant in this case.  And to spend a lot of time talking about what is happening at this moment is really missing the main point. 

ABRAMS:  Go ahead Mr. Cohen.

COHEN:  I just wanted to touch on one thing you said earlier about the fact that she didn‘t have an obligation to complain because it was her supervisor.  Under the law, just because O‘Reilly was her supervisor doesn‘t mean that she doesn‘t have to let Fox know that this harassment has allegedly taken place. 

ABRAMS:  Right.  Well...

PERATIS:  Well, I never said she...

ABRAMS:  No, I did.  The point I was making...

PERATIS:  OK.

ABRAMS:  ... was just that Supreme Court has distinguished between people who work together and someone as a supervisor, an underling relationship.  Let me just—Mr. Cohen, let me just go to you on this one thing.  It sounds like Bill O‘Reilly is conceding that all of this nasty talk is true.  I mean listen to this. 

O‘Reilly believes that the quotations may be a partial transcription, this is Fox, of a conversation that he had with Mackris but they omit significant portions of the conversation that would show that he did not do or say anything unlawful and that substantial exculpatory portions of that conversation are omitted.  The circumstances all suggest that at least one audio recording was made and transcribed in an intentionally misleading manner.  That sounds to me like Bill O‘Reilly is saying yes, I said that stuff. 

COHEN:  Maybe he did.  It doesn‘t—does not make it unlawful.  In order for it to be unlawful sexual harassment, it has to be two things.  One, the individual who is complaining of it to be harassment has to truly find it to be harassing and unwelcome, and it has to be subjectively offensive, which would mean that a reasonable person would find it offensive. 

ABRAMS:  Right.

(CROSSTALK)

ABRAMS:  But still the fact that he‘s conceding this to me is, you know, is a fairly big deal.  I mean again, I agree with you it‘s not per se sexual harassment but it‘s still significant...

(CROSSTALK)

COHEN:  She‘s got a couple of problems here. 

PERATIS:  I think we should back up for just one step.  Sex between a boss and subordinate is not illegal.  What Mr. Cohen just said is certainly true, it will be her burden to show that it was unwelcome.  But the fact that she never complained to H.R. or anyone else is far from the end of the analysis. 

UNIDENTIFIED MALE:  Right.

PERATIS:  It is certainly clear that a complaint to Bill O‘Reilly himself as her boss would have been ridiculous and futile.  It‘s also...

(CROSSTALK)

ABRAMS:  She says she did it though. 

PERATIS:  It‘s also probable that if she filed a complaint with H.R.  or with Fox News, Bill O‘Reilly is the king of Fox News. 

ABRAMS:  Well...

PERATIS:  Filing a complaint would have been...

(CROSSTALK)

PERATIS:  ... clearly been futile. 

ABRAMS:  I‘ve got to wrap it up.  But look the bottom line I can just tell you, Roger Ailes runs that place.  Bill O‘Reilly is an important figure at Fox News...

PERATIS:  Absolutely.

ABRAMS:  ... but Roger Ailes runs it.  To suggest that Bill O‘Reilly somehow runs Fox News is an overstatement. 

COHEN:  Dan, can I just make...

ABRAMS:  I‘ve got to—I‘m sorry Robert, I‘ve got to wrap it up.

COHEN:  Right.

ABRAMS:  I wanted to spend more time.  To both of you, thanks so much.

PERATIS:  Thank you.

ABRAMS:  Appreciate it...

COHEN:  Bye-bye.  Thanks a lot.

ABRAMS:  We‘ve got so much of the Peterson stuff—went over. 

All right.  Coming up, U.S. troops in Iraq allegedly defied commanders, refused orders to drive a convoy into a hospital zone.  The question—could they be court-martialed?  Should they be court-martialed?  They say their fuel truck weren‘t protected by armor.  What are the rules?

(COMMERCIAL BREAK)

ABRAMS:  Coming up, U.S. soldiers being investigated for refusing an order in Iraq.  They say it was a suicide mission.  What rights do they have?  Can they just say no?

(COMMERCIAL BREAK)

ABRAMS:  Some soldiers in Iraq are being investigated by the Army now for refusing an order.  They said they viewed it as a suicide mission.  The question, what rights do they have if they think that?  First, here‘s NBC‘s Jim Maceda. 

(BEGIN VIDEOTAPE)

JIM MACEDA, NBC NEWS CORRESPONDENT (voice-over):  Eighteen soldiers of the 343rd Quartermaster Company allegedly refuse an order to deliver fuel, but U.S. Army officials tell NBC News that investigators are now focusing on five individuals, three noncommissioned officers and two enlisted soldiers.  Investigators will be looking into a possible breakdown in discipline or command leadership.  Keeping supplies rolling has been critical.  Every day, the Army sends out some 3,000 trucks and 7,000 soldiers.  Ninety percent from the Reserves or National Guard, sometimes driving through ambushes, roadside and suicide bombs. 

UNIDENTIFIED MALE:  Knowing it‘s not a question of if but when they will be attacked. 

MACEDA:  From Kuwait to Turkey, 250 truck convoys a day, carry 110,000 bottles of water, over 200,000 meals, over a million gallons of fuel to front line commanders like Colonel Dave Abram (ph).  He calls his truckers an inspiration. 

UNIDENTIFIED MALE:  They are on the road every single day and they put more miles on their trucks than anyone else. 

MACEDA (on camera):  The latest incident may be an isolated case, but it highlights what soldiers call increasingly difficult conditions, trucks in disrepair or without steel plating to protect against bombs or proper escorts. 

(voice-over):  The Army claims that maintenance and protective armor issues are being fixed and that all convoys have armed escorts.  If found guilty, the soldiers could face demotion, discharge or even prison.  Though in this case, the Army may exercise discretion. 

EUGENE FIDELL, MILITARY LAW EXPERT, HARVARD:  If it turns out that safety concerns were well founded, a commander would want to take that into account. 

MACEDA:  Army officials say it is likely the unit‘s company commander will face suspension.  For now, the reservists are back with their unit as the U.S.  Mission‘s lifeline grinds out another dangerous day. 

Jim Maceda NBC News, Baghdad. 

(END VIDEOTAPE)

ABRAMS:  “My Take”—I feel for the people involved here.  There are plenty of discussions, plenty of accusations about the military failing to supply enough armor, armored vehicles.  And as a layperson, I can see why they would have been concerned about this type of mission.  I don‘t fault them for that.  For complaining, speaking up, going to the media, whatever, but I can‘t see how you can run an effective military if soldiers can decide whether their orders are too dangerous when other soldiers are more willing to put themselves in harm‘s way, have to go instead.

See what my guests think.  James Carafano served in Europe, Korea and the U.S., an Army lieutenant colonel and is now a senior research fellow for defense and homeland security at the Heritage Foundation.  David Sheldon is a former Navy JAG who‘s represented officers and enlisters in courts up to and including the U.S. Supreme Court. 

All right.  Mr. Sheldon, let me read you from the uniform code of military justice.  It says any person who violates or fails to obey any lawful general order regulation is derelict in the performance in his duties and shall be punished as a court-martial may direct.  How do you defend this? 

DAVID SHELDON, FORMER NAVY JAG:  Very simply Dan.  I think number one you have to look at the facts and circumstances.  If these soldiers were sent in with no defense whatsoever, with no combat protection, with no ability to defend against themselves, with no armor, I think that they can validly raise a defense in this case. 

ABRAMS:  Colonel Carafano, I mean but I would think that then could you make that argument in all sorts of different cases where they can say well I didn‘t want to do it because of this and that. 

LT. COL. JAMES CARAFANO (RET.), HERITAGE FOUNDATION:  Right and certainly, you know, we can‘t hold judgment on this, of course, because we don‘t have all the facts and we have to have all the facts to really draw a conclusion.  But I mean there have been lots of instances all through history.  Soldiers never go into Army—into war with all the equipment they need.  Think about the Red Ball Express during World War II.  Soldiers operated under terrible conditions.  The soldiers that needed that fuel their lives may have been at stake, so all of these things are part of the evaluation that goes...

ABRAMS:  But what facts might change it Colonel?  I mean what facts might come in where could you say oh you know what, they had the right to disobey the order. 

CARAFANO:  Well the commander should have done a risk assessment.  He

should have looked at the priority of the mission, the state of the

equipment and the personnel and he should have done an assessment to

determine if the mission was appropriate and if risks were appropriate.  We

realize that we have to put soldiers in harm‘s way.  The commander should

only do that appropriately.  So certainly, if the commander is at fault and

·         then that would be a mitigating factor. 

(CROSSTALK)

ABRAMS:  Go ahead Mr. Sheldon.  Go ahead.

SHELDON:  One thing I want to make certain that your viewers know is that the commanding general has already determined that these soldiers had valid concerns.  Dan, I‘d also like to just say, one thing that I probably disagree with you on is whether or not these families, the soldiers involved, their families should be making statements to the media. 

ABRAMS:  I didn‘t say anything about that. 

SHELDON:  Well, I don‘t know if you did or not.  Maybe I misread you...

ABRAMS:  Yes...

SHELDON:  ... or misheard you.  But I would say that they‘re not advised at this point to be making these types of statements.  Let the investigation come out through the Army channels...

ABRAMS:  Oh I see.  Yes, I was saying look, if the only way, if your only outlet is to go to the media, then I think that‘s better in a way than disobeying an order is all I was saying. 

SHELDON:  I understand that. 

ABRAMS:  Yes.  OK.

SHELDON:  And what—there are other outlets that are valid. 

ABRAMS:  Right.

SHELDON:  Article 138 Complaint, going up the chain of command.  But you have 18 soldiers here.  That‘s unheard of in the United States Army. 

ABRAMS:  Here‘s Private Amber MacClenny leaving a message for her mother on her answering machine about this.  Let‘s listen.

(BEGIN AUDIOTAPE)

AMBER MACCLENNY, U.S. ARMY:  Hi mom.  This is Amber.  This is a real, real big emergency.  I need you to contact someone.  I mean raise pure hell.  We had broken down trucks, non-armored vehicles and we were carrying contaminated fuel.

(END AUDIOTAPE)

ABRAMS:  Colonel Carafano, is this going to be a case where they put the military on trial? 

CARAFANO:  Well, I think—certainly think that would be inappropriate.  I mean we‘ve had these things all through history.  Certainly, there are always soldiers that gripe and there are always soldiers that are put in harm‘s way who sometimes think it‘s not appropriate.  But again, that‘s a part of war.  So that‘s part of the evaluation that goes on when they do the analysis. 

SHELDON:  But they have to go to war armed and prepared to do battle and defend against themselves.  This unit wasn‘t. 

(CROSSTALK)

CARAFANO:  Yes, but—no, but the point is that soldiers never have everything they need.  I mean...

ABRAMS:  Yes.

CARAFANO:  ... we never had all the equipment we needed in the World War II or any war. 

ABRAMS:  Got to wrap it up...

(CROSSTALK)

ABRAMS:  I‘m sorry, I apologize.  Colonel Carafano, David Sheldon, thanks a lot.

(CROSSTALK)

ABRAMS:  ... out of time.  E-mails abramsreport@msnbc.com.  We go through them.  Sorry, today I meant to do it.  We ran out of time.  We had a live breaking story in the Peterson case and (UNINTELLIGIBLE) but your e-mails, I promise, tomorrow my—I didn‘t get to speak, either.  My “Closing Argument” tomorrow, too. 

Coming up next, “HARDBALL” with Chris Matthews.  His guest tonight, former President Jimmy Carter. 

Thanks for watching.  See you tomorrow.

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

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