updated 10/21/2004 10:09:49 AM ET 2004-10-21T14:09:49

Guest:  Ron Green, Dean Johnson, Joe Tacopina, John Q. Kelly, Ken Jacobus, Arthur Dean

DAN ABRAMS, HOST:  Coming up, the attorney who represents Bill O’Reilly and Fox News tells us why O’Reilly will not back down. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  O’Reilly admits he was stupid and says that every guy can relate to that.  But his attorney says this is not just about sexual harassment, it’s about an effort to bring down the Fox News star.  Attorney Ron Green joins us live. 

And Scott Peterson’s attorneys are trying to show that Laci’s baby was born alive, a key to their theory that she was abducted then killed.  And the judge rules a lawyer who’s been doing a lot of commentating on the case can’t commentate anymore because he’s effectively become a member of the defense team. 

And when Alaskans go to the polls they won’t just be voting for president.  They’ll be deciding whether they can buy, use, sell or give away marijuana.  The lawyer leading the fight joins us for a debate. 

The program about justice starts now.  

(END VIDEOTAPE)

ABRAMS:  Hi everybody.  First on the docket tonight:  The attorney representing Bill O’Reilly and Fox News.  Remember, a Fox News producer has filed a sexual harassment suit against O’Reilly and Fox, claiming O’Reilly made unwanted lewd and sexual comments to her in person or on the phone.  Remember, some of this is graphic.  It’s a warning. 

Among the things Mackris claims O’Reilly said to her—quote—“You would basically be in the shower.  I would come in.  I’d join her.  You’d have your back to me and I would take that little loofah thing and kind of soap up your back.”  It goes on from there.

Her lawsuit came just hours after Fox sued her and her lawyers for extortion.  Then yesterday after seeing our Friday night program, Andrea Mackris added new allegations to the suit.  She now claims the defendants are retaliating against her and she’s pointing in part to an interview from this program when I talked to Investigator Bo Dietl who’s working for O’Reilly. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  You have a case against a well-known person, and they thought they were going to be able to shake him down.  You have an extortion here.  It’s the only crime that’s really active here. 

(END VIDEO CLIP)

ABRAMS:  A report out today in New York’s “Daily News” claims Mackris turned down a $2 million settlement offer days before the suits were filed.  “My Take”—I said it many times before.  I believe O’Reilly’s extortion suit is a non-starter, but even if everything she says is true, Andrea Mackris has some hurdles to overcome, particularly when it comes to damages. 

Joining me now Ron Green who is an attorney for Fox News and Bill O’Reilly.  And I should say once again we asked Ms. Mackris’ attorney, Benedict Morelli, to come on the program and once again he told us he did not have time to talk to us. 

All right.  Mr. Green, thanks very much for taking the time.

RON GREEN, ATTORNEY FOR FOX NEWS & BILL O’REILLY:  Thank you Dan.

ABRAMS:  Let me start with issue number one.  And this is the first issue I think we have to get out of the way.  Does Bill O’Reilly admit that he made the comments that are laid out in the lawsuit? 

GREEN:  No, he does not.  In fact, what Bill O’Reilly has stated directly and through me, his counsel, is that not only has he never engaged in any form of unlawful sexual harassment at any level, but he will not comment specifically on the words or sentences or phrases that are contained in the complaint against him, which seem to be part of larger conversations until we can see those conversations in full and in context.  We want Mr. Morelli to produce the tapes that we believe may exist that his allegations imply do exist by how they are set forth...

ABRAMS:  Right.

GREEN:  ... and frankly, to either fish or cut bait. 

ABRAMS:  All right.  Let me play—this is what Bill O’Reilly said on his program.  And the way I interpreted this, and I’m going let you respond the way you will, the way I interpreted this was in essence, Bill O’Reilly was saying yes, I may have said some of those things and here’s what he said and I’ll let you respond.

(BEGIN AUDIOTAPE) 

BILL O’REILLY, ON HIS RADIO PROGRAM MONDAY:  This is my fault.  I was stupid and I’m not a victim.  But I can’t allow certain things to happen and I appreciate your support.  We get thousands of letters, but I’m not—

I am stupid.  I am a stupid guy and every guy listening knows how that is. 

That we are very stupid at times.”   

(END AUDIOTAPE)

ABRAMS:  By saying he’s stupid, it sounds like what he’s saying is I’m stupid because I said those things and I probably shouldn’t have said it. 

GREEN:  Well, I think what he was saying was that he was stupid to allow himself to be placed in a position of vulnerability where someone could think they should shake him down and extort money from him.  Remember what we have here is a $600 million threat that appeared in a draft complaint that was shown to Fox attorneys before any complaint was filed in this action and then a demand from which Andrea Mackris’ counsel never retreated of $60 million, offering no proof of injury. 

And frankly, Dan, a late breaking development today was that we sent a notice to take the deposition of Andrea Mackris in her suit filed after our extortion lawsuit and a notice to have her examined by a physician in support of her claims that she was emotionally damaged.  We received a letter just today from Mr. Morelli on behalf of his client, Andrea Mackris, that he has not placed at issue in her lawsuit any claim concerning her emotional state.  Since she’s not claimed physical injury, she’s still on the payroll, has suffered no economic harm, that betrays his notion that this is anything but a claim of extortion. 

ABRAMS:  And I—look—well we’ll get to that in a minute.  I agree with you that the numbers here are sort of ludicrous.  And as I said before, I’ve said it many times; I think damages are going to be a real problem for her to demonstrate.  But it does sound like whenever, and I’m not just talking about you, but anyone who’s affiliated or sort of on O’Reilly’s side in this talks about this, they always couch it in, well, you know, maybe he said it or—I mean are you telling us straight out he did not say the things that are in that lawsuit, he never said them? 

GREEN:  I can’t tell you that he never uttered the words or sentences or phrases that appear in the claim that she’s made.  What I can tell you is that until we can see the source of those alleged remarks, notes, transcripts or tapes, we can’t put those things in context if they were said...

ABRAMS:  Understood.

GREEN:  Were they, in fact, said as answers to questions.  Was she reading a script?  What we know is that she told a colleague from whom we have a sworn statement in August of 2004 that she had done the lawyer thing, was going to get $1 million from Bill O’Reilly and buy the apartment in New York City she always wanted and couldn’t afford. 

ABRAMS:  Let’s talk about numbers.  You mentioned numbers there.  Bo Dietl on the program Friday, pretty clearly saying to us that a number—a bunch of numbers were thrown around in this case.  There was a report today about $2 million, there were it seems clear some level of settlement talks.  Was there any number thrown around at you apart from 60 or 600 million? 

GREEN:  I don’t know of any such numbers.  What I do know is this—that the demand made by Andrea through her attorney, Mr. Morelli, never dipped $1 dollar below $60 million.  And the threat was that now during the pre-election season that now at this time when Bill O’Reilly’s ratings are at an all-time high, we would give them an ultimatum of days, not weeks or months to pay $60 million or they would go public with their scurrilous allegations. 

ABRAMS:  Well let’s talk about that.  I mean you claim that’s extortion.  As a legal matter—and as you know—you as well as anyone knows, in these cases, every day there are discussions where one side says here’s what we claim.  Unless we settle this case, I’m telling you right now, we are going to sue you.  We are going to go public with this.  Are you saying that no lawyers are ever allowed to say that in the context of settlement negotiations? 

GREEN:  No, I’m not.  What I’m saying is as the appellate division in this state has said on the level of professional responsibility, by way of example, if there is gross disproportionality between any demand for settlement and any conceivable injury, that is prima facia evidence of a breach of professional responsibility.  And the difference also exists under our state penal law. 

Even if allegations are true, and we do not for a moment conceive that they are in this case, you can use the truth as an unlawful weapon.  For example, suppose someone has a photograph of an on-air celebrity taken when they were young and foolish that if published today would be grossly embarrassing but the photograph is a true depiction of an event.  And whoever has the photograph says to that personality, I have not been injured, I own the photograph.  But I’m going to release it to the public for the expressed purpose of causing you humiliation unless you pay me an extraordinary sum of money. 

ABRAMS:  Releasing to the public is different from filing a lawsuit.  I mean you would agree with me that the threat of saying I’m going to release something that I have secretly and embarrass you to the public is different from saying look, we’ve got these allegations, which are true and we’re going to file a lawsuit and that’s going to be embarrassing. 

GREEN:  No, because the rules concerning extortion and the rules governing appropriate professional conduct limit how you can plead, what you have to plead and for what purpose... 

ABRAMS:  But professional conduct doesn’t equal extortion. 

Professional conduct is just guidelines for lawyers. 

GREEN:  But they’re not mutually exclusive propositions.  If, for example, someone has a claim to make, and they choose to put it in unnecessarily graphic terms for the purpose of causing public humiliation, irrelevant to the prosecution of their cause, that can be extortion...

(CROSSTALK)

GREEN:  ... and then coupled with a demand for $60 million... 

ABRAMS:  You know that happens—they throw out numbers all the time in these lawsuits...

GREEN:  No...

ABRAMS:  ... and they’re completely ridiculous. 

GREEN:  No Dan, I must disagree...

ABRAMS:  Really...

GREEN:  ... with respect to one point.  There’s a difference between the indemnible (ph) clause and a rock bottom settlement demand made for the purpose of extorting money. 

ABRAMS:  Let me take a quick break here.  Mr. Green, I’m going to come right back to you.  I want to continue this discussion.  We’re also going play for him that comment that a lot of you wrote in about, about Bo Dietl, what—you know, she says it was basically him threatening her on our program.  We’re going to play that for Mr. Green. 

And in the Scott Peterson case, he said it wasn’t part of the defense

·         he wasn’t part of the defense team even though he cross-examined Scott Peterson.  The judge has now disagreed, slapping a gag order on him.  We’ll tell you why. 

Plus, come November 2, the grass may be a bit greener in Alaska.  Voters there will decide whether to make marijuana legal to grow, use and sell.  Proponents say it will generate tax revenues, allow cops to focus on violent crimes.  We’ll talk with the man behind the mission and I’ll tell you “My Take” on it as well.

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, more with Bill O’Reilly’s lawyer after this quick break.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

BENEDICT MORELLI, ANDREA MACKRIS’ ATTORNEY:  I cannot talk about demands or offers.  Offers would be what they were offering to settle the case.  There were talks of many different numbers.

(END VIDEO CLIP)

ABRAMS:  Benedict Morelli, the attorney for the woman suing Fox News and Bill O’Reilly, saying there were a number of numbers thrown out.  We’re talking with Ron Green, the attorney representing them.  Again, we should say that we invited Mr. Morelli on the program and so far he has declined our offer.

All right.  Mr. Green, he says that there were a lot of numbers thrown around.  Is that just not true?

GREEN:  That’s just not true as far as I know.  The only number I know about is $60 million.  Let me say otherwise, Dan, that with respect to your previous comment about how unusual it might be to sue an attorney for extortion when a settlement demand is outrageous.  I call your attention to the decision just three weeks ago in the Michael Flatley case, the “Riverdance” star. 

In California, the appellate turn (ph) court there ruled that Michael Flatley could proceed with a claim of extortion in California state courts against a woman and her attorney...

ABRAMS:  Oh, I have no doubt...

GREEN:  ... who had threatened him with a sex abuse claim publicly aired.  His response was exactly what Bill O’Reilly’s response was here. 

ABRAMS:  Right.  Look, I don’t have a doubt that lawyers could at times be engaging in extortion.  I’m saying that in a case like this where so far no one has denied that Bill O’Reilly made these comments and Bill O’Reilly himself is acknowledging that the comments he made were at the very least stupid, to then say that settlement negotiations were—even if he said we’re not settling for less than whatever amount, to say that that’s extortion on the part of the lawyer, according to not just me, but just about every attorney who’s come on this program who specializes...

(CROSSTALK)

ABRAMS:  ... says it’s a long shot. 

GREEN:  I can’t be speaking for the attorneys on your program.  I just finished tonight a very interesting article by the well known criminal lawyer in New York, Stanley Arkin (ph) who agrees with Judge Hand (ph) of the U.S. Supreme Court and others for the proposition that when an attorney advances a claim for the purpose of extorting money by threatening public humiliation if demands aren’t met, that is the felony of extortion. 

ABRAMS:  For the purpose of extorting money as opposed to the purpose of settlement, right?

GREEN:  But settlement...

ABRAMS:  Yes.

GREEN:  ... must relate not just to a good-faith belief in your case, but reasonable compensation for injuries sustained, not for the motivation of taking what people will pay for silence.  That’s extortion. 

ABRAMS:  All right.  I think you would agree that your lawsuit on the extortion is going to be a long shot.  It’s going to be an uphill battle at the very least, would you not?

GREEN:  No...

ABRAMS:  You wouldn’t agree with that?  All right.

GREEN:  I would agree that every lawsuit is a challenge.  I think Mr.

Morelli’s challenges in this case are far greater than mine on two fronts. 

ABRAMS:  OK.  Let me play this piece of sound from Bo Dietl.  He was on the program—a lot of my viewers wrote in, were very angry about this comment made by Mr. Dietl and then Andrea Mackris actually cited our program in her amended complaint.  Let me play it and get your response. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  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.  This is going to be a message to people.  When you file these frivolous lawsuits and you think you’re going to get people that are well known 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. 

(END VIDEO CLIP)

ABRAMS:  All right.  He says—Ms. Mackris says that that is effectively retaliation for her filing this lawsuit. 

GREEN:  Well she’s forgetting the first lawsuit.  The purpose for which Mr. Dietl and other investigators were hired was to find out more about someone who we believe has committed a crime, not to help us defend a meritless sexual harassment case.  We don’t care about her prior sexual interest or history.

We do care about the fact that she threatened to extort money from prominent corporate officials, prominent corporations and a very valuable on-air personality, destroy his marriage, his children’s relationship with him, and his career.  That’s extortion. 

ABRAMS:  All right.  We’ll move on from—the final question is regard to Fox and News Corp.  I’ve said that I think they have a very tough case to make against Fox News, you know, because there’s no indication even in the lawsuit that anyone else at Fox knew or even that Fox should have known and yet, some lawyers have said well, you know, you don’t have to prove that.  You don’t have to prove that Fox should have known.  If they created an atmosphere, if Bill O’Reilly because of who he was at Fox News said these things, Fox News could be liable as well.  Your response.

GREEN:  That’s a profound legal analysis.  I will say this, that several days before Ms. Mackris’ attorneys asked for $60 million to settle her claim, she responded to an e-mail inquiry by friends asking her how she was doing having returned to work with Bill O’Reilly some months earlier, having worked with him for four years before leaving for CNN and she said I’m having a wonderful time here. 

ABRAMS:  She admits that, yes.

GREEN:  I love the people.  I’m home and I will never leave again. 

Are those things you would say to your friends on a confidential basis...

ABRAMS:  Yes.

GREEN:  ... if you were working in a hostile environment?  I don’t think so. 

ABRAMS:  That is going to be one of the problems that she will have in this lawsuit.  Ron Green, thank you so much for coming on the program.  We really appreciate it.

GREEN:  Thank you, Dan. 

ABRAMS:  Coming up, the attorney who says he cross-examined Scott Peterson in prison over the weekend is now an unofficial member of the defense team as far as the judge is concerned, unable to commentate anymore.  We’ll tell you why and get a live report from the courthouse.

Also, one of the first police officers to respond to the scene the day Laci’s body was found, called by the defense in an effort to bolster their theory Laci was abducted and her baby was born alive.

And we’ve got more on the Bill O’Reilly case coming up.  Two of our legal experts in this area are going to comment on what we just heard.  Coming up.

(COMMERCIAL BREAK)

(BEGIN AUDIOTAPE)

AMBER FREY, SCOTT PETERSON’S FORMER GIRLFRIEND:  I could assume possibly that she’s missing because you love me, right?

SCOTT PETERSON, ON TRIAL FOR MURDER:  Amber, she’s missing because someone abducted her.

FREY:  Somebody abducted her?

PETERSON:  That’s what we think happened.

FREY:  Really?

PETERSON:  Yes.  She would not run off.

FREY:  OK.

PETERSON:  Someone took her.

(END AUDIOTAPE)

ABRAMS:  And that is the theory the defense is pursuing today.  Scott Peterson there in conversations with Amber Frey, insisting he had nothing to do with Laci’s disappearance, that someone took her.  Defense attorney Mark Geragos tried to develop that theory more today, questioning a police witness in hopes of showing that forensic evidence demonstrates that Laci and her unborn child Conner could have been murdered separately.  But also, asking questions about transients and homeless people, again. 

So the question is, what was the point of today’s testimony?  What was the defense trying to do?  Edie Lambert from KCRA joins us now.  All right.  Edie, he’s bringing up transients and homeless people again (UNINTELLIGIBLE)?

EDIE LAMBERT, KCRA REPORTER:  Well, Officer Timothy Philipps is the one who really made the connection between Laci Peterson’s remains and that plastic sheeting that was found about 1,000 feet north of her remains.  And he’s the one who said that first looking at Laci’s body and then seeing the plastic sheeting, they both smelled the same.  They both smelled like death. 

Now Mark Geragos has not spelled out his exact theory, but he has certainly implied that this plastic sheeting was used in the disposal of Laci’s remains.  Now we can tell you that the jury has already heard that this plastic sheeting was tested; there was no trace of biological evidence.  The investigators also looked at some of the duct tape that was found attached to the plastic sheeting.  It did not match the duct tape that was found on Laci Peterson’s remains. 

But Mark Geragos, as you pointed out, asking a lot of questions about the area where the remains were recovered, pointing out that it is a very public area.  Transients live near by and I think making the point that anybody could have come night and day and this area is populated.  They could have dumped a body and gotten out of there. 

Also today a dog handler testified.  He was one of several dog handlers that was at the Berkeley marina just four days after Laci Peterson disappeared.  Now the jury, as you know, has already heard from another dog handler whose dog did seem to pick up Laci Peterson’s scent.  This man said his dog did not pick Laci’s scent.  And he also had three key attacks on the dog handler who you just saw in that video.

He called into question the item that was used to establish Laci’s scent with the dog handler, tremble (ph) that did pick up the scent saying he didn’t trust that item.  He didn’t use it on his own dog.  Of course, it may be raising a question for the jury as to why this other was used for the other dog.  Also said that Laci’s scent could have been transported in Scott Peterson’s truck and finally, are you—I’m sorry, Dan, I didn’t know if you were asking me a question. 

ABRAMS:  You know what the truth is Edie...

LAMBERT:  ... also pointing out...

ABRAMS:  ... you weren’t supposed to hear that.  That was suppose to be—but please continue.  All right.  You know what, Edie Lambert just stand by...

LAMBERT:  Oh, OK.

ABRAMS:  ... we’re going to just go—just stand by for a minute.  Dean Johnson, let me go to you very quickly.  Bottom line here, they’re talking about transients and homeless people again.  You know, is Mark Geragos trying to suggest that these are different transient and homeless people.  They’re the Modesto transient and homeless people and now we’ve got the San Francisco Bay transient and homeless people where the body was found.  Are they sort of working together so they, like, the Modesto guys call their buddies in the San Francisco Bay to help them dispose of the body?

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Yes, and did they have a weigh station at that house in Tracy, these transient people, where they kept Laci while she was being taken from Modesto to the Berkeley Marina?  Lord only knows what the theory is.  There are theories and partial theories flying fast and furious.  All I can tell you is just looking at this jury my feeling is that they have had it.  If Geragos has got a story that he wants to tell, they’d probably be willing to listen to it, but they’ve really had it with the theory du jour and a new theory and a new version of the facts every day. 

ABRAMS:  All right.  Let me take a break.  Joe Tacopina and John Kelly are with us as well.  There was more testimony.  Also gag order imposed on a regular guest of this program.  The judge saying he’s effectively a member of the defense team now, subject to the gag order. 

And on the ballot in the great state of Alaska, legalizing marijuana.  We’re not talking about just medicinal purposes.  We’re talking about everyone being able to smoke it.  The voters will decide on November 2 whether anyone over 21 can grow, use, sell, even give it away.  (UNINTELLIGIBLE)

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

ABRAMS:  Coming up, Scott Peterson’s attorneys seem to be throwing out another theory about how Laci may have been killed.  We’re not sure, but we’ll tell you what happened in court coming up in a moment.

(NEWS 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:  No one now expects the defense to explain exactly who did this to Scott’s son, Scott’s wife and their grandson, but the defense is throwing out some theories about what might have happened, what could have happened, and there was an officer who was one of the first people to arrive at the scene where they found Laci’s body, and that of her son Conner, and the defense has called this witness, Officer Timothy Philipps, to talk about plastic bags that were found at the scene. 

The significance, let’s read number one.  Officer Philipps said as I got close proximity to the bags, stopped to take a look and examine it further, I did notice an odor about it that was similar to the odor of the remains examined earlier, meaning of Laci Peterson.  It was distinctive enough, can almost say it was indescribable, giving off odor both from the remains of the tarp to me were similar.

If we can go to number three.  At the time I recovered the tarp, close to it, didn’t notice an odor.  My thought was that this may be related, may not be, had no way of knowing whether or not it was involved.  Didn’t want to be premature, make it look related to my reporting.  It goes on from there.

All right.  Joe Tacopina and John Q. Kelly join us, two great

attorneys, join the panel.  Joe, what is the defense doing here?  I don’t -

·         maybe I’m missing something. 

JOE TACOPINA, CRIMINAL DEFENSE ATTORNEY:  Dan, what—you’re being skeptical in one regard and it’s—I think Geragos is walking a fine line.  You know, there’s such a thing as the grab bag defense.  When I was a homicide prosecutor, I loved when a defense attorney put out a grab bag defense to a jury, which basically means he didn’t do it, but if he did it, he was insane...

ABRAMS:  Right.

TACOPINA:  ... and if he wasn’t insane, it was self-defense.  I mean basically they’ll throw anything against the wall, hope it sticks.  I don’t think Geragos has gone there yet, but...

ABRAMS:  What is he saying about the bag though?  I don’t get it...

(CROSSTALK)

ABRAMS:  The point about the bag that the bodies were wrapped and therefore that someone had dumped the bodies in the bay from a bridge or something? 

TACOPINA:  That appears—I say that appears to be it because, you know, aside from the distinctive smell that Officer Philipps both discovered on the body and on the bag, there was also that duct tape which I think is going to be important as we go down the defense case a little further.  There was some duct tape attached to Laci’s torso that was also discovered on that plastic bag.

ABRAMS:  Right.

TACOPINA:  And don’t forget what the theory is here that, you know,

this baby’s—there was duct tape around the baby Conner’s neck and that -

·         if that baby was actually born before the baby was killed, Scott Peterson is innocent of murder, period, end of story and he’ll be acquitted.  I think that’s where Geragos is going.  I don’t think we should judge the entire defense on this—these couple of days.  I mean just like the prosecution’s case.  It built to a crescendo and I think we have to give the defense some time. 

    

ABRAMS:  All right.  Dean, do you have any sense of exactly what the point is with regard to the bags? 

JOHNSON:  Well, you know, I know that what they’re trying to say.  They’re going to talk about these bags as possibly having drifted from a construction site near the Richmond Bridge, maybe being used or somehow otherwise associated with Laci’s body and say that the bodies were dropped from the Richmond Bridge and they all got—everything got there by way of tidal action.  The problem with all of this is if you know one fact about any of these theories, they start to evaporate.  For instance, the theory that the baby was born alive.  If the baby was born alive and somehow kept out of the water, it’s inconsistent with the state of decomposition of the child...

ABRAMS:  You could argue the baby was wrapped longer than was its mother. 

JOHNSON:  You could argue that, but the baby having been born alive is inconsistent with the fact that there’s a substance called meconium in the baby’s bowel, which is expelled immediately after any baby is born alive.  So if you know...

(CROSSTALK)

JOHNSON:  ... the duct tape theory, the types of duct tape on the plastic bags versus Laci’s body, versus near Conner simply don’t match. 

ABRAMS:  All right.

JOHNSON:  If you know one fact, these theories just start to evaporate very quickly and I think Geragos has stepped over the line...

ABRAMS:  All right.  Before I go to the gag order issue, John Q.  Kelly, good to see you again John.  All right.  Let me get a quick response from you on this and then I want to ask you about this—Michael Cardoza.  What do you make of today’s testimony...

JOHN Q. KELLY, FORMER CALIFORNIA STATE PROSECUTOR:  Well I just think bringing up the transient and homeless people defense again is fatal to the defense, Dan.  I mean as Dean was touching upon, you know, Laci’s body was several months decomposed, meaning it had been put out there originally.  They could have had homeless people keeping it in a bathtub for three months to decompose then planting it the same way they would have had to keep the baby alive for three months then kill him and plant them there.  Both things done to frame a fertilizer salesman. 

(CROSSTALK)

KELLY:  It’s just totally inconceivable and inconsistent. 

TACOPINA:  John, I don’t think that—first of all, I don’t think this is Geragos’ theory...

KELLY:  I hope not. 

(CROSSTALK)

TACOPINA:  No, but what Geragos is doing...

KELLY:  ... or I do...

TACOPINA:  What Geragos is doing is presenting other options.  His theory of the defense is simply this, Scott Peterson didn’t do it.  He doesn’t have to show who did do it...

ABRAMS:  But he said he would. 

KELLY:  You know what Joe...

TACOPINA:  No, he said he would show that he’s cold—to use his - -- quote—“cold-stone innocent”. 

(CROSSTALK)

TACOPINA:  Now you can be cold stone innocent because there’s no proof that you’re cold stone guilty. 

KELLY:  Joe, you know once the defense goes down the path of trying to prove a theory or even suggest a theory, the jury...

(CROSSTALK)

ABRAMS:  Let me move on...

(CROSSTALK)

ABRAMS:  Let me move on to another issue here.  Michael Cardoza, good guy, good lawyer, been on this program, you know very pro defense in his analysis, but got an opportunity to cross-examine Scott Peterson in prison and now the judge is saying effectively, you know, you’re a member of the defense team.  That’s what sort of seems kind of obvious and as a result, he is not allowed to talk about the case anymore.  Here’s what Michael Cardoza said right after he had first gone into the judge’s chambers on Monday when he was on this program. 

(BEGIN VIDEO CLIP)

MICHAEL CARDOZA, CRIMINAL DEFENSE ATTORNEY:  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 would be happy to do that for them. 

(END VIDEO CLIP)

ABRAMS:  I laughed then.  I laugh again now.  All right, John...

KELLY:  Yes.

ABRAMS:  ... you know, so he is now—what happened?  I mean...

(CROSSTALK)

ABRAMS:  ... on Monday he goes to the judge’s chambers and he doesn’t gag him and now he gags him? 

KELLY:  Michael got the worst of all worlds.  He’s definitely an agent for the defense team.  He definitely has to be gagged because of that.  He has got a conflict of interest so he can’t be doing commentary in the case since he has a vested interest in the case and he should just suggested to Geragos that he get someone else qualified to handle surreptitious cross-examination...

(CROSSTALK)

ABRAMS:  I’ve got to tell you, I think he can continue doing commentary.  I don’t see any problems, as long as you tell people look, he’s part of the defense team. 

UNIDENTIFIED MALE:  No, no, no...

ABRAMS:  Look, I have no—look Joe, we’ve had you on the program when you were representing the Jackson team. 

TACOPINA:  Yes.

ABRAMS:  And we’ve had other people.  Roy Black, for example, other networks do it all the time.  When you have someone as long as you’re honest with the viewers, it’s OK.

TACOPINA:  It’s not about viewer honesty Dan.  Here—this judge has a duty and believe me...

ABRAMS:  That’s a different issue. 

TACOPINA:  This was a sneak preview for me on the Jackson trial coming up.  Believe me I looked into California law long and hard.  I want—I’m interested to see what law this judge cited but I’ll tell you this—this judge has a duty and an obligation to make sure this is a fair trial.  The last thing he wants here...

ABRAMS:  Right.

TACOPINA:  ... is after a four and a half year trial that in the appeals process when Peterson, if he’s convicted, gets a new appellate lawyer to say oh, my God, his attorney/client privilege was breached by this lawyer, going out on TV, talking to potential, you know, members of the jury pool and potential jurors listening... 

ABRAMS:  Yes.

TACOPINA:  ... you know, revealing things that shouldn’t have been revealed.  His attorney/client privilege was breached.  New trial.  I mean...

ABRAMS:  Yes.

TACOPINA:  ... this judge has an obligation and to heck with what Cardoza wants to do or what Scott Peterson says is OK by him...

ABRAMS:  Dean...

(CROSSTALK)

ABRAMS:  Dean, what happened overnight?  I mean he went into chambers, the judge said just don’t talk about what was said.  Did the judge watch our program, you think, and say you know what, Dan Abrams and his team are right.  That, you know, he’s either on the defense team or he’s not. 

JOHNSON:  Well, you know, I think Judge Delucchi does watch some of the commentary, but I think what happened is very close to what Joe said.  Michael Cardoza found himself with essentially three roles, commentator, advocate for the defense and witness.  It was those last two that were the most important and Judge Delucchi finally decided for Cardoza, what he decided was in favor of Scott Peterson’s right to a fair trial and rather than engaging in a big fight once that Cardoza was subpoenaed as a prosecution witness over Scott Peterson’s privilege.  He said look, you’re performing the services of a defense lawyer, you’re a defense lawyer...

ABRAMS:  Yes.

JOHNSON:  ... you’re under my gag order.  That protects Peterson’s privilege...

(CROSSTALK)

ABRAMS:  Let me get a final thought.  John, look, you’ve been sort of pro prosecution generally...

KELLY:  Yes.  Sure.

ABRAMS:  ... in your analysis of this case.  Do you think things are generally going well for the prosecutors still?

KELLY:  I do.  I think in spite of themselves that there’s going to be a conviction in this case.  I think no matter what Geragos is throwing out and I think he’s making a couple of mistakes himself right now in not biting the bullet and putting on too long a defense case.  I think...

ABRAMS:  Really...

KELLY:  ... the basic salient facts, the motive is here, the opportunity is there and the bodies in the bay are there and he’s going to be convicted...

ABRAMS:  Very quickly, Dean, do you think there’s going to be a conviction? 

JOHNSON:  Yes, I think it’s either going to be a quick conviction or a long, long deliberation and a hung jury. 

ABRAMS:  And Joe.

TACOPINA:  Dan, honestly, I have absolutely...

ABRAMS:  Yes.

TACOPINA:  ... no clue.  It could go either way, I think.

ABRAMS:  Yes.  It’s a tough case.  All right.  Edie Lambert, sorry we didn’t back to you—get you back in.  Thanks a lot for coming on.

Joe Tacopina, John Kelly, Dean Johnson, great team. 

(CROSSTALK)

ABRAMS:  Thanks a lot.  Coming up, Alaskans aren’t only going to vote for president this Election Day, they’re also going to decide whether it should be legal for anyone to buy and smoke pot.  We’ll talk with the lawyer leading the campaign to allow Alaskans to not just be up there high on the map, but actually to get high.

And you’ve seen the negative ads already.  I know you say you don’t like them and you know what?  They still work.  What can we do to stop (UNINTELLIGIBLE)?  It’s coming up...

(COMMERCIAL BREAK)

ABRAMS:  We’re back and we’re talking about smoking pot in Alaska. 

Here’s an ad that has been playing in that state. 

(BEGIN VIDEO CLIP/POLITICAL AD)

UNIDENTIFIED FEMALE:  Alaska is still our final frontier.  We live here for the freedom. 

UNIDENTIFIED MALE:  Far from the lower 48. 

UNIDENTIFIED MALE:  Alaska means being free from excess government. 

UNIDENTIFIED MALE:  Freedom from intrusions into our homes. 

UNIDENTIFIED MALE:  From intrusions on our privacy. 

UNIDENTIFIED MALE:  This is Alaska. 

UNIDENTIFIED FEMALE:  Alaska stands for the freedom to live the lives we choose to live. 

UNIDENTIFIED FEMALE:  The freedom to choose. 

UNIDENTIFIED MALE:  The freedom to choose. 

UNIDENTIFIED FEMALE:  The freedom to choose.

UNIDENTIFIED MALE:  Alaska is the last best place in America. 

(END VIDEO CLIP)

ABRAMS:  But Alaskans are going to be choosing on the Election Day

whether they want people to be able to smoke pot.  It’s called initiative 2

·         Measure 2, an initiative that would remove criminal penalties from marijuana possession, including growing or selling it, so long as the government regulates the sale of the drug, sort of like alcohol. 

What few know is that the debate about decriminalization of pot in Alaska has been raging for decades.  Back in 1975, the State Supreme Court ruled that an individual has the right to possess up to four ounces of pot in their home.  In 1982, the state legislature made it law.  Then, in 1990, a citizen initiative criminalized possession only to be overturned by a state appeals court in 2003. 

Now Alaskans are going to decide whether to eliminate essentially any of the restrictions.  “My Take”—I hope it passes.  There’s legitimate argument that legalizing pot and only pot could generate tax revenues and provide funds that try to keep it out of the hands of children.  It would allow police to focus on the DUIs and violent crimes.  But I get the argument on the other side that it sets a bad example and that making it easier to obtain pot, any kind of drug is bad for anybody.  But if Alaskans want to be the test case in this to see how unrestricted sales of pot would work, I say let them give it a shot and let’s see how it goes. 

Joining me now to discuss is attorney Ken Jacobus treasurer for “Yes on 2” and a leading proponent of the initiative.  He’s in Anchorage, Alaska, and in Washington, D.C. is Arthur Dean, chairman and CEO of Community Anti-Drug Coalitions of America, an organization that promotes building drug-free communities.

All right, Mr. Jacobus, you know the arguments on the other side.  They’re going to say that to legalize marijuana is to legitimatize a drug and why do we want to go down that road? 

KEN JACOBUS, TREASURER FOR “YES ON 2”:  To legalize marijuana will just simply set up here a system where adults will be able to acquire marijuana legally for their constitutional use, which is guaranteed by the Supreme Court, or for their medical use when it’s—when they can benefit from it.  It will not make marijuana more freely available to children.  Marijuana is used by more than—or has been tried by more than 50 percent of Alaskan high school seniors.  It will take marijuana out of the hands of drug dealers and place it in legitimate enterprises.  If you look at the alcohol, alcohol is much harder for the kids to get than marijuana...

ABRAMS:  But you can make the same argument about—you know—they say you can make the same argument about cocaine or heroine. 

JACOBUS:  That it’s harder to get? 

ABRAMS:  No, that by legalizing it, you’re taking it out of the hands of the drug dealers, then you can regulate it and you can use the, you know, the proceeds to try and prevent kids from using it et cetera.

JACOBUS:  As a matter of fact, you can make that argument.  We’re not making that argument right now, but the hard drug dealers actually finance international terrorism.  So there is actually a good argument for legalizing across the board, but I do not believe in that.  By the way, I do need to say that I do not smoke marijuana, I do not believe in smoking marijuana, but it’s a right to privacy and it’s a right to protect our children issue...

ABRAMS:  Mr. Dean, let me read...

JACOBUS:  We’ve got the kids...

ABRAMS:  Let me read Mr. Dean, the actual verbatim of the initiative because it talks a lot about privacy.  This initiative is an exercise of the powers of the Alaskan citizenry for the promotion and protection of the safety, welfare, health and privacy of the people, and the environment of the state to allow for the industrial and medicinal type uses of hemp, to eliminate the evils associated with an illicit market for cannabis and to promote temperance in the consumption of cannabis.  Mr. Dean.

ARTHUR DEAN, COMMUNITY OF ANTI-DRUG COALITIONS:  Well, I would say to you that I represent an organization that has more than 5,000 community anti-drug coalitions, 16 of them are in the state of Alaska.  As I travel around America, to include Alaska, none of the people that are involved in these coalitions from all sectors believe that what they are proposing is a responsible thing.  It is irresponsible. 

ABRAMS:  Why? 

DEAN:  And I say it’s irresponsible because marijuana in and of itself, as proven by the National Institute on Drug Abuse is addictive. 

ABRAMS:  So is alcohol, though, isn’t it? 

DEAN:  I understand.  And people that use marijuana have the following problems.  Number one, many of them drive impaired.  The—about 30 percent of the drivers arrested today are driving under the influence because of marijuana. 

Number two, 10 to 20 percent of crashes—fatal crashes in America are because of people driving under the influence of drugs.  Marijuana is the most significant drug used. 

Number three, more than 60 percent of emergency room visits in this country are because of people that have abused marijuana.  Marijuana prevents people from having good social relationships.  Marriages fall apart.  They don’t perform well in the workplace.  So privacy is not an issue in my mind.  It’s about public health and public safety. 

ABRAMS:  All right, Mr. Jacobus, I’m almost out of time.  But why don’t you respond to the issue about people driving impaired, for example, because I know it’s a big issue in Alaska. 

JACOBUS:  Sure.  People driving while impaired is a big issue in Alaska with respect to alcohol.  When you’re talking about somebody driving impaired because of marijuana, it’s normally marijuana plus alcohol and it’s the alcohol that causes the problem.  It’s the alcohol...

ABRAMS:  So, you’re saying it’s not a problem to drive...

(CROSSTALK)

ABRAMS:  Are you saying it’s not a problem to drive while you’re high on marijuana? 

JACOBUS:  Just marijuana alone? 

ABRAMS:  Yes. 

JACOBUS:  That could very well be a problem, but our initiative would allow—that would prohibit that.  The municipalities and the state could still prohibit operating motor vehicles under the influence of alcohol. 

ABRAMS:  But how do you tell...

JACOBUS:  ... marijuana...

ABRAMS:  How do you tell if someone has been smoking marijuana?  Do you have tests ready for that to go if this passes? 

JACOBUS:  Actually, there are tests, which test—actually, hand held could test motor control or coordination, yes.  You can tell whether they’re under the influence of anything.  It’s not like a Breathalyzer, but the idea is to test coordination rather than to test for a particular product. 

ABRAMS:  All right.  Ken Jacobus and Arthur Dean, thanks very much for coming on the program.  Appreciate it. 

DEAN:  You’re welcome.

ABRAMS:  Coming up, the candidates say they hate the negative ads.  The public says I hate the negative ads.  You know what?  They work.  It’s my “Closing Argument”—what we can do about it, maybe.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, they’re supposed to follow orders.  One group of reservists in Iraq refused, said the orders were effectively a suicide mission.  Now they could be court-martialed.  Some of you wonder what they would have done had they been order to hit the beaches of Normandy on “D-Day”.  Read your e-mails coming up.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—what can you do to try to make sure political attack ads don’t work?  Everyone likes to say I hate these ads.  I’m tired of hearing how awful the other one is.  I want to know where the candidates really stand on the issues. 

On another network I heard one anchor condescendingly ask an audience if they like these types of advertisements.  Everyone screams no.  The problem is they work.  And that means that like the politicians some voters are not exactly coming clean.  But I believe most people really are frustrated, but feel powerless to do anything about them. 

As the tidal wave of negative ads hit the airwaves these next two weeks, just say no.  How about this?  How about ignore the rhetoric and hold the candidate or his party accountable for every attack ad you see?  Counter them and just assume the attack ads are not true and that you’re being deceived and let them know how you feel.  Try to somehow make sure both the candidate you voted for and the one you didn’t know that you made your choice in part because you thought the negative ads are bad for the country, be it in a letter, an e-mail or even when you are asked questions at exit polls. 

If you want to know where they stand on the issues, you can read the comparisons available in your local paper.  You can even go to their campaign Web sites, georgewbush.com and johnkerry.com, but I promise, we’ll keep seeing the ads as long as we respond to them.  As long as we define the candidates as they’ve been portrayed in the negative ads, we’ll always feel our choice in almost every election is between bad and worse.  It’s bad for the country and what’s worse there’s nothing to indicate that they’re going to stop anytime soon. 

I’ve had my say, now it’s time for “Your Rebuttal”.  Monday we told you about 18 U.S. Army reserve soldiers allegedly refused orders to drive fuel trucks to a U.S. base north of Baghdad, saying their orders would have sent them effectively on a suicide mission.  They were concerned the fuel trucks—the fuel was contaminated.  The trucks weren’t armored.  I said I feel for the soldiers, but can’t see how you can run an effective military if soldiers feel that they can decide whether their orders are too dangerous. 

From Colorado Springs, Raymond Buczinski.  “What would have happened if the soldiers had refused to go ashore at Normandy?  It was a suicide mission.  I’m sorry, but this is part of war.”

Donita Adams in Tampa, Florida.  “If our government isn’t going to protect our soldiers with proper protective armor, then they should have the right to protect themselves.  No soldier should believe that he or she is on a suicide mission.”

That’s it for the program.  Thanks for watching.  Up next, “HARDBALL” with Chris Matthews live from Democracy Plaza.  Thanks for watching.  I’ll see you tomorrow. 

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

END   

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