updated 10/25/2004 10:20:03 AM ET 2004-10-25T14:20:03

Guest: Andre Hepkins, Mercedes Colwin, Kathleen Peratis, Curtis Sliwa, Jeffrey Lichtman, Reverend Barry Lynn, James Bopp

DAN ABRAMS, HOST:  Coming up, talks of a possible settlement in the sexual harassment case against Fox News host Bill O‘Reilly.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  After both O‘Reilly and his former associate producer slapped each other with lawsuits and had their lawyers talking tough on TV, what could have possibly gotten them back to the bargaining table?  We have got a late-breaking report.

And in the Scott Peterson case, the defense gets its first chance this week to convince a jury he didn‘t kill his wife.  We look back at week one of the defense‘s case.

Plus both President Bush and Senator Kerry have made their religion a central issue in this campaign, but religious organizations aren‘t supposed to endorse candidates or they can lose their tax-exempt status.  Do they do it anyway, and how can they discuss some of the key issues without being, well, political?  We debate.

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket, we‘re getting late reports that attorneys for Bill O‘Reilly and his accuser Andrea Mackris have been meeting throughout the day to see if they can settle her sexual harassment lawsuit against us—against him.  Sources tell us the meetings are still ongoing.  Remember how it began.

The 33-year-old producer filed a suit last week claiming O‘Reilly made unwanted phone sex calls to her.  This came on the heels of the suit.  The cable news star filed against Mackris and her lawyer claiming they were trying to extort him.  Two days ago on this program, I asked O‘Reilly‘s lawyer Ron Green about reports swirling that a $2 million settlement was in the works.

(BEGIN VIDEO CLIP)

RONALD GREEN, FOX NEWS & BILL O‘REILLY‘S ATTORNEY:  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 one 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 were given an ultimatum of days, not weeks or months, to pay $60 million or they would go public with their scurrilous allegations.

(END VIDEO CLIP)

ABRAMS:  (UNINTELLIGIBLE) tell you something—if they are having discussions, that $60 million figure is a moot point.  Joining me now from New York is Celebrity Justice correspondent Andre Hepkins.  He has been closely following the story.  All right, Andre, what do you know?

ANDRE HEPKINS, CELEBRITY JUSTICE CORRESPONDENT:  Dan, I know that the settlement probably won‘t be for $60 million.  When this all started, I spoke to Benedict Morelli, Andrea Mackris‘ attorney, who told me that he never asked for $60 million.  He said that he simply pointed out that that‘s what he believed that Bill O‘Reilly was worth.  But nonetheless, we know that Mackris‘ people and O‘Reilly‘s people have been seriously talking about settling this once and for all.  They are in serious negotiations.

And the settlement could come down as soon as late tonight, sometime this weekend, early as Monday.  So we know that they have been seriously talking about settling this because it‘s in the best interests of both parties.  I also learned today, this hasn‘t been heard before, that when this started early on, Bill O‘Reilly personally offered Mackris $4 million, personally offered her $4 million to make this all go away.  So there is a lot of talk...

(CROSSTALK)

HEPKINS:  ... about settlement...

ABRAMS:  I‘ve got to ask you because that‘s a pretty big statement.  You‘re saying that you have heard that Bill O‘Reilly himself offered her, not through their lawyers?

HEPKINS:  Before the lawsuits were filed, before lawyers got involved, I am under the understanding that a source very close to Mackris told me that Bill O‘Reilly personally offered her $4 million to make this all go away.  Obviously, she rejected that, according to the source.

ABRAMS:  Right.  OK, we‘ve got to be clear.  That‘s close to Mackris, right?

HEPKINS:  Close to Mackris...

ABRAMS:  OK.  All right.  So we‘ve got to take that then with that grain of salt...

HEPKINS:  Yes.

ABRAMS:  ... which is that‘s a source close to...

HEPKINS:  Yes.

ABRAMS:  ... the person who is making the accusation.  All right...

HEPKINS:  Right.

ABRAMS:  Andre thanks a lot.  We appreciate that.

HEPKINS:  Thank you very much.

ABRAMS:  All right.  “My Take”—I predict this case will settle before it goes to trial.  He does not seem to be denying he said it, and yet she has some problems with her case as well.  At this point, I think they both want it to go away and so I think it will.  Joining me now from New York are two lawyers that have been on both sides of the negotiating table, employment law defense attorney Mercedes Colwin and employment law (UNINTELLIGIBLE) plaintiff‘s attorney Kathleen Peratis.  Thanks to both of you for coming on the show.  All right...

(CROSSTALK)

ABRAMS:  First let me just ask you the most obvious question.  Then I‘m going to ask you to sort of hash this out, how two people might hash it out.  Mercedes, do you think this case is probably going to settle?

MERCEDES COLWIN, EMPLOYMENT LAW DEFENSE ATTORNEY:  Oh, I think so.  I mean there is no doubt.  I mean not if it stayed at $60 million, but now that there seems to be some feedback from Benedict Morelli that he‘s going to settle this case for a lot less and sure I think it will.  I mean if the median—the average cost of these cases to defend is about a quarter of a million dollars, and so a case of this magnitude is going to be closer to a million to defend, it‘s certainly worth their while to try to settle early on.

ABRAMS:  Ms. Peratis.

KATHLEEN PERATIS, EMPLOYMENT LAW PLAINTIFF‘S ATTORNEY:  Well, there is not only the money cost, Mercedes is absolutely right, there is also the human cost.  I think it‘s likely to settle because most cases settle.  Something like 99 percent of the lawsuits that are filed do not end up being tried, so I think this one will settle.

(CROSSTALK)

PERATIS:  The only question is what is the price?

ABRAMS:  That‘s right.  That‘s right...

(CROSSTALK)

ABRAMS:  Go ahead.  Go ahead.

PERATIS:  Well, in these—in settlement negotiations of these kinds of cases, there are two significant central factors.  One is what‘s the defendant going to pay?  And number two, what‘s he going to get for it?  The plaintiff gets money.  The defendant usually gets some kind of promise of confidentiality, which means that we‘re never going to know what the number was and we probably won‘t know anything else about it either if they do settle.

ABRAMS:  All right.  Mercedes, take the role of O‘Reilly‘s lawyer here for a moment.  You go in, you have already made the pleasantries, you have said hello, you know you sat down, you start chatting.  How do you start talking when things have been this—there has been so much animus publicly about this?  What‘s the way you start the conversation?  And then I‘m going to have Ms. Peratis respond and let‘s see how it goes.

COLWIN:  I would say simply this.  Let‘s put all of this behind us. 

We‘re all interested in getting this resolved.  Let‘s put everything aside.  Let‘s talk dollars and cents.  Now let‘s look at what other courts have said about your particular injury or the economic damages.  Let‘s start with that.  What are your economic damages?

We know that‘s a very low number because she literally left Fox just a couple of weeks ago and then we move on to compensatory.  Well what are you looking for in compensatory?  We know that the average jury award is somewhere between 25 and $50,000 depending upon the egregiousness, so let‘s focus in on that...

ABRAMS:  All right.

COLWIN:  ... and build upon the numbers that you know the cases have held with respect to jury awards...

ABRAMS:  All right.

COLWIN:  ... and then move on from there.

ABRAMS:  And Ms. Peratis, what—so obviously, the O‘Reilly team is going to be coming in with sort of low numbers, saying come on, you know these cases don‘t settle for those kinds of numbers.  How do you respond?

PERATIS:  Well, I disagree with Mercedes.  I think both sides know that this case has nothing to do with the typical case.  O‘Reilly has a very big interest in making sure that if there are tapes, they don‘t come out, because he‘s at least got some kind of plausible deniability at this point.  What she will go through if she goes a whole lot further is the expense of defending the other lawsuit and also the terrible emotional price of having her entire past dragged into the public arena.

ABRAMS:  So what do you...

COLWIN:  Kathleen, I think the timing...

PERATIS:  I think that the number is going to be a far larger number...

ABRAMS:  Like what?

PERATIS:  ... than it would be if Mercedes or I were claiming sexual harassment.

ABRAMS:  All right.  Like what kind of number?

PERATIS:  Well I think it‘s certainly going to be seven figures.  How many seven figures is the number.  People are talking about two, three, $4 million.  I would not be surprised if that is the realm in which this case settles.

COLWIN:  Dan...

PERATIS:  But there will also be an issue as to how it‘s paid out.

COLWIN:  I think...

PERATIS:  They are going to want to make sure that she never says one single word about what the number was...

ABRAMS:  Yes.

COLWIN:  I think Kathleen...

PERATIS:  ... which means that they may have a significant holdback. 

She won‘t get it all right away.

ABRAMS:  Go ahead Mercedes.

COLWIN:  I think Kathleen raises some excellent points, but to think that this case is going to settle for a couple of million dollars is just unbelievable.  There are no economic damages.  We‘ve all agreed upon that.  We‘re talking about compensatory.  We‘re talking about if you are going to settle for those numbers, then there is a punitive cost—at least there is a punitive charge underneath that type of settlement.  And frankly, as a defense attorney, I‘m repulsed by it to think that someone that has such limited damage...

(CROSSTALK)

COLWIN:  ... and frankly, we‘re talking about seven...

ABRAMS:  This is the problem, though...

COLWIN:  But you know what Dan...

ABRAMS:  Before you—I‘m saying this is not the problem with one side—this is the problem with negotiation.  Because I know, Mercedes, that‘s exactly what O‘Reilly‘s team thinks about this case and what they think about the damages.  And that‘s why I‘m trying to figure out how they are going about negotiating that in there.

COLWIN:  I mean if they are going to go in and say—I think the best

way is to say look, we believe we have some serious proof on some of the

underlying claims.  Maybe not the civil extortion claim, which is the first

cause of action, but the intentional infliction of emotional distress, the

tortuous interference of business relationships.  They can show that even

by just looking at the complaint.

ABRAMS:  So what‘s the amount, Mercedes?

COLWIN:  What I think.  It‘s 750 to a million -- $750,000 to a million...

PERATIS:  I couldn‘t...

(CROSSTALK)

COLWIN:  Because that‘s the defense...

PERATIS:  I couldn‘t disagree more.  I have settled cases that are far less egregious and far lower profile than this one for more than that.

ABRAMS:  Well...

PERATIS:  I think Mercedes is dreaming.

ABRAMS:  We can‘t—look, we can‘t even agree on the program...

COLWIN:  I‘m a defense attorney, Kathleen.  You can‘t blame me.

ABRAMS:  This is my concern, though.  This is why I‘m wondering if they are going to be able to settle.  They are having the same sort of debates in there.  President Clinton remember with Paula Jones...

COLWIN:  Eight hundred and fifty thousand dollars, Dan.

ABRAMS:  That‘s right.  That‘s exactly right.  May 1994...

COLWIN:  I mean let‘s be realistic.

ABRAMS:  ... Paula Jones—we put it up on the screen there.  U.S.

District Court seeking $700,000 for willful, outrageous, malicious conduct. 

December ‘97, Jones reduces the damages sought...

PERATIS:  She did not have...

ABRAMS:  ... in her suit against Clinton.

PERATIS:  She did not have...

ABRAMS:  In November ‘98, she agreed to pay Jones $850,000.

(CROSSTALK)

PERATIS:  She did not have...

COLWIN:  ... into context, too Dan, because there is a case involving a large law firm—I‘m not going to disclose the case but many employment lawyers know which one I‘m talking about, where they had this incredible partner that couldn‘t keep his hands to himself.  He would expose himself and do all sorts of horrible things to his secretaries.  But he was such a brilliant rainmaker, they kept saying well we can‘t keep a permanent post there.  We‘re just going to fill it up with temps.  One temp after another and he would continue this disgusting behavior.

ABRAMS:  Yes.

COLWIN:  The jury came back with $6.9 million.  It was then reduced to 3.4.

ABRAMS:  All right.

COLWIN:  But here‘s a case with grabbing, groping, and all sorts of things...

ABRAMS:  Right.  All right, I‘ve got to...

COLWIN:  This is not what...

ABRAMS:  Ms. Peratis gets the final word.

PERATIS:  What this plaintiff has is the equivalent of the blue dress. 

She has tapes...

ABRAMS:  Maybe, maybe.

PERATIS:  Well, the complaint is...

ABRAMS:  She might have been taking good notes.  I don‘t...

PERATIS:  That‘s certainly possible...

ABRAMS:  I want to see the tapes.

PERATIS:  ... but you‘re not going to see them...

ABRAMS:  I know I‘m not.

PERATIS:  ... if O‘Reilly pays enough.

ABRAMS:  I know.  I‘m not going to hear them.  I‘m not going to see them.  All right...

PERATIS:  That‘s right.

ABRAMS:  I know.  I know.  All right...

COLWIN:  But who knows, Dan, maybe like Michael Jackson, we found out 10 years later.

ABRAMS:  Who knows?  Who knows?  All right.  Mercedes Colwin and Kathleen Peratis, two great guests.

PERATIS:  Thank you.

ABRAMS:  Thanks a lot for coming on the program.

COLWIN:  Thank you.

PERATIS:  Thank you.

ABRAMS:  Coming up, I hope the jurors in the Scott Peterson case like each other.  They are going to be spending a lot of time together sequestered for their deliberations.  We look back at what else happened during week one of the defense‘s case.

And you‘d think after allegedly being targeted by the mob, a popular New York radio host would at least be able to talk about his ordeal of being shot in the back of a taxicab now that the feds have accused a mafia don of the crime.  But attorneys for John Gotti want to force Curtis Sliwa to stop talking about him.  Can they do that?  We talk to both Curtis Lehwa and John Gotti, Jr.‘s attorney.

Plus politicking on the pulpit.  Churches and other places of worship forbidden from endorsing candidates on behalf of the church.  They could lose their tax-exempt status.  Big deal.  But do some of them cheat, and should we care if they do?  We debate.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Scott Peterson‘s defense team started their case this week by asking the judge to dismiss the charges.  We‘ll look back at week one of the defense.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  Prosecutors took more than four months to make the case against Scott Peterson.  They say he killed his wife.  His lawyers say they need less than two to present the defense.  In the first week, nine defense witnesses took the stand from a dog handler to an OB/GYN, concrete expert.  And we learned that even though they have been able to go home every night, the judge will sequester jurors when they start deliberating, possibly in about a week and a half from now.

NBC‘s Jennifer London takes a look at week one of the defense‘s case.

(BEGIN VIDEOTAPE)

JENNIFER LONDON, MSNBC CORRESPONDENT (voice-over):  The defense opened its case by asking for a dismissal, arguing there isn‘t enough evidence to give the case to the jury.  Judge Delucchi denied the motion, which apparently didn‘t surprise the defense team.  They had their first witness in court ready to testify.  A concrete expert told the jury that concrete used to make one home-made anchor found in Peterson‘s warehouse did match concrete samples taken from the defendant‘s yard.  This supports Peterson‘s claim.

BRENT ROCHA, LACI PETERSON‘S BROTHER:  And they talk about cement in your shop that you used for, I don‘t know, anchors or something.

SCOTT PETERSON, ON TRIAL FOR MURDER:  Yes, I made a boat anchor with some cement and then I used some in the driveway here.  Yes.

LONDON:  The defense also focused on dog tracking evidence.  Dog handler Ron Seitz testified that his dog did not pick up Laci‘s scent at the Berkeley marina.  This contradicts a prosecution witness who says her dog did.

BETH KARAS, COURT TV CORRESPONDENT:  This dog evidence is now a little murky and may have been just totally neutralized and taken out of the case.

LONDON:  The last witness called, an OB/GYN.  The defense is trying to prove that baby Conner died after December 24, 2002, and that he was older than 33 weeks.

PAULA CANNY, CRIMINAL DEFENSE ATTORNEY:  Dr. March concluded that Conner could not have died before December 29.  That was powerful.  But the deputy district attorney, Harris, did a great job in cross-examining the doctor so that by the time the cross had finished, no—the witness was so befuddled, his conclusion basically lost its power.

LONDON:  When testimony resumes, we expect the defense to call lead detective Craig Grogan back to the stand.  Earlier he told the jury police had 41 reasons to believe Laci‘s body was dumped in the San Francisco Bay by Peterson.

(on camera):  NBC News has learned the defense intends to wrap up its case by this coming Tuesday.  We also know the jury will be sequestered during deliberations.

In Redwood City, California, Jennifer London, NBC News.

(END VIDEOTAPE)

ABRAMS:  Thanks Jennifer.

Coming up, he says he‘s a changed man but one New York radio talk show host doesn‘t buy it.  The son of infamous mob boss John Gotti is sitting in jail, accused of trying to rub out former Guardian Angel and radio personality Curtis Sliwa.  Sliwa is now trash talking the mob on his radio show and Junior Gotti wants him to shut up, just on his show.  We talk to both sides.

And just 11 days to the election.  The heat is turning up, but not only on the campaign trail, possibly in your local house of worship as well.  Groups now warning local congregations that it‘s against the law for the church to fund or endorse candidates or they lose tax-exempt status.  But how far is too far?  What does it mean?  We‘ll discuss.

(COMMERCIAL BREAK)

ABRAMS:  New York radio talk show host and subway crime fighter Curtis Sliwa has a right to be angry.  According to federal prosecutors, back in 1992, two people tried to kill him in a New York City taxicab—a hit.  For years, many thought that Sliwa might have staged it itself, even though Sliwa was shot in the legs and the stomach.  Here is how his ex-wife Lisa described his escape.

(BEGIN VIDEO CLIP)

LISA SLIWA, CURTIS SLIWA‘S EX-WIFE:  He jumped out the window after he had been shot on Seventh Street and Avenue B.  He jumped out the window to get away.  He‘s got scrapes and bruises on the side of his leg and I just hope we get these guys this time.

(END VIDEO CLIP)

ABRAMS:  It‘s taken 12 years, but the guys may finally be brought to justice.  A federal indictment handed down this summer charges John Gotti Jr., son of the infamous crime family boss with ordering two attacks on Sliwa, a baseball bat beating and the attempted taxi murder.  Sliwa has been talking about the case on his talk show and that‘s something Junior Gotti‘s lawyer, Jeffrey Lichtman is trying to stop.

He has asked a federal judge to slap a gag order on Sliwa saying he is denigrating Gotti and that—quote—“the potential jury pool is listening to this man five times a day.”  Lichtman even claims the attempted murder charge is—quote—“stale and frail, turning on suspect testimony from the alleged targets and biased cooperators with major credibility problems.”

“My Take”—I think it would be a travesty to stop a victim like Sliwa from speaking out, regardless of whether Gotti is guilty or not, Sliwa was still the victim here.  Joining me now WABC New York radio talk show host and founder of the Guardian Angel‘s anti-crime group is Curtis Sliwa.  Curtis, good to see you again.

CURTIS SLIWA, RADIO TALK SHOW HOST:  And thanks for the tactical air support.  Good to see you.

ABRAMS:  All right.  Well you know, I try and tell everyone what I‘m thinking at the beginning of each segment.  So let me—what have you been saying on your radio?  Give us a sense of what you have been saying on the program.

SLIWA:  Well for instance, it‘s no different than what I have been talking about the past 12 years when people weren‘t really paying a lot of attention to what I said right after I got out of intensive care.  Was the attack on my life on two separate occasions by the supreme cusheens (ph) of John Gotti Jr.?  First with the baseball attacks in April of 1992, and then shooting, aerating my insides and my lower extremities with five shots in June of 1992.

And I talked about dates, times, and places that the Gottis and the Gambinos, both when the father was alive and even after he passed on and the son took over the leadership of the most vicious coupe of thugs in America, all the criminal actions that they have committed, both those that have been on the record and those that I had heard about in the streets because I grew up with these...

ABRAMS:  And you believe—and they—the indictment charges that they targeted you because of what you had said previously on your radio show, right?

SLIWA:  Oh, yes.  And remember, it‘s not as if I‘m reading books and

talking about this from a romanticized point of view, which is what so much

of Hollywood is about when you see the “Goodfellas”, “The Godfather” and

obviously now “The Sopranos.”  But this was the real life nitty-gritty

details of what it‘s like to grow up with guys of whom I went to school

with and had to literally deal with on an everyday basis who spent every

waking moment of their day trying to make money at other people‘s expense,

never having to work a day in their life.  And if you disagree with them,

if given them a sneer and a glare, they will want to bend your legs, stuff

·         and stuff it in your pocket and make you literally exist at room temperature, which means you‘re six feet under, pushing daisies in a pine box.

ABRAMS:  Have you always been convinced—I mean look, there was a lot of time there where a lot of people were saying oh, you know Sliwa, he wants the attention, maybe he did this to himself, et cetera.  Were you always convinced that this was, you know, a mob hit, that Gotti was behind this?

SLIWA:  Oh there was no question because each and every day, leading up to the trial of John Gotti Sr. the last time—remember when Sammy “The Bull” Gravano flipped the script, testified against his don, and they had Memorex tapes this time that implicated John Gotti Sr. and calling for the executions of some of his closest associates and perceived enemies.

Remember, he even called for executions of guys who were late for a meeting or happened to be gay in terms of their orientation.  I mean this was just mass murder but of a local nature.  And I would critique it, I would talk about it.  I actually had on many of the sickle fence (ph), tottis (ph) and lackeys and supporters of the Gottis and Gambinos.  And it would get very heated, and they would threaten me both on the air and in the street and eventually obviously they decided to deliver on those threats on two separate occasions.  Only through the grace of God am I alive today.

ABRAMS:  Let me read from the government‘s—this is the government‘s motion with regard to a bail effort on the part of Gotti.

Gotti Jr. reiterated his displeasure with Sliwa‘s personal attacks on the Gotti family and he gave a direct order to attack Sliwa a second time.

Before we go to break, Curtis, just explain to us what happened to you in that taxi.

SLIWA:  I was in the back of the taxi on my way to WABC where I hosted a program at the time with Lisa, and it happened that two of the Gambino guys had stolen this yellow cab and basically turned it into a rolling hearse.  By the time I was able to dive out of the window, I had been—my whole insides had been aerated with hollow point bullets from a 38-caliber and I literally was turned into a speed bump.  Only through my ability to get out that window am I alive today...

ABRAMS:  (UNINTELLIGIBLE)

SLIWA:  ... and they were able to escape.  And you know something, a month later the New York City Police Department closed the investigation...

ABRAMS:  Yes.

SLIWA:  ... and said there is absolutely no connection with the Gottis, Gambinos, or any elements of organized crime.

ABRAMS:  You got to feel vindicated, even if it‘s 12 years later.  Curtis Sliwa, stick around because coming up, you have heard his side.  Our next guest says enough.  John Gotti Jr.‘s attorney tells us why Sliwa should be gagged.  He joins us next and then we‘ll have Curtis Sliwa respond.

And in the Scott Peterson case, one of the defense theories is that a homeless or a transient person may have abducted and killed Laci.  One of you asks where did they hide her in that period until they decided to murder her.

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, he says the mob tried to kill him.  Now an alleged mobster is trying to have him gagged.  We heard what Curtis Sliwa had to say.  Now we hear from John Gotti Jr.‘s lawyer, but first the headlines.

(NEWS BREAK)

(BEGIN VIDEO CLIP)

L. SLIWA:  They don‘t know if there is going to be permanent damage, any nerve damage or paralysis because the bullet did go out through the back.

(END VIDEO CLIP)

ABRAMS:  That was Lisa Sliwa back in 1992, the ex-wife of radio talk show host and Guardian Angels‘ founder Curtis Sliwa about what is now alleged to be a mob hit on Sliwa.  Before the break, I was talking to Curtis Sliwa about that attack which federal prosecutors say was ordered by mob boss John Gotti‘s son John Jr.  Now believe it or not, John Gotti‘s attorney Jeffrey Lichtman wants a judge to slap a gag order on Sliwa to keep him from talking about it on his radio show.

Gotti is awaiting trial on an indictment that includes the attempt on Sliwa‘s life.  Mr. Lichtman says Sliwa‘s radio mob talk could prejudice the jury pool against his client.  And again, we‘re going to hear again from Curtis Sliwa in a moment.  But first I am joined by John Gotti, Jr.‘s attorney, Jeffrey Lichtman.  Jeff, good to see you again.  Thanks for coming on the program.

JEFFREY LICHTMAN, JOHN GOTTI JR.‘S ATTORNEY:  Thanks for having me.

ABRAMS:  All right.  So you‘ve heard Curtis Sliwa make the argument.  You heard me say that, you know, I don‘t really see how you‘re going to get the judge to say that the alleged victim in the case can‘t talk about it.  What‘s your argument?

LICHTMAN:  Well Dan, first of all, understand this.  This is not a rule that I created in my office one day.  This is a rule that was created by the federal judges of New York and frankly, there is a rule like this throughout the district courts of America.  And the reason why it‘s made...

ABRAMS:  What‘s the rule?

LICHTMAN:  The rule is to protect both the defense and the government in order to give them a fair trial.

ABRAMS:  What rule are you talking about?

LICHTMAN:  The rule is a local rule 23.1 in New York that says that the jury pool has to remain impartial...

ABRAMS:  Right.

LICHTMAN:  ... and both prosecutors, defense lawyers, officers of the court, and witnesses have to refrain from saying things that will potentially infect the jury pool.  Now let me explain why it‘s especially acute in a case like this.  You have Sliwa—and I‘m not suggesting that 10 years ago he couldn‘t talk about this shooting, but now you have got John Gotti Jr. who is charged with this crime and you have got Sliwa who is not perceived as just a talk show host, but what he‘s perceived as is an actual witness in the case, and the things that he says will have a little special more effect on the jury pool, the listeners, because he supposedly has some inside information as to what happened.

But keep in mind this also.  This is a situation where our jury pool sits in the very place all of his listeners are.  So for five days a week, for five hours a day, for a year it will be before the trial, the potential jury pool will listen to him saying things that are specifically prescribed by the statute.  I‘m not running to the court complaining.

(CROSSTALK)

LICHTMAN:  I‘m saying that he shouldn‘t be able to talk about two particular classes of things that he says every day...

ABRAMS:  All right, two things...

LICHTMAN:  ... five days a week.

ABRAMS:  First of all, he is the alleged victim here.  We need to keep that in mind.  Regardless of what else he is, he is still the alleged victim in a case that has been charged.  And second, there is no rule in New York which says that anyone peripherally involved in a case isn‘t allowed to talk about it, period.  Because you could make that argument about anyone poisoning the jury pool in every case.  And so according to you, then, there would be a sort of de facto gag order in place in every New York case and that‘s just not the law.

LICHTMAN:  Well because you‘re misstating the law, Dan.  The law specifically refers to defendants, their lawyers, the prosecutors, and witnesses in the case.  And as a witness, he‘s saying things that are—he‘s denigrating John Gotti‘s character, which is specifically mentioned in the rule is not allowed and he‘s also talking about the facts of the case.  Look...

ABRAMS:  So you‘re saying—you don‘t even need a gag order is what you‘re saying.

LICHTMAN:  Well...

ABRAMS:  You‘re saying that New York law is so clear that no one is allowed to talk about these cases and give an opinion about them...

LICHTMAN:  Not no one...

ABRAMS:  Well, I‘m sorry...

LICHTMAN:  Witnesses.

ABRAMS:  No witnesses, no lawyers that effectively in New York there is a gag order in place in every single case, and therefore in this one you‘re just saying to the judge just apply the law.

LICHTMAN:  That‘s exactly right.

ABRAMS:  Yes, you‘ve got a long-shot argument on that one I think...

LICHTMAN:  Well I don‘t agree.

ABRAMS:  Really?

LICHTMAN:  I absolutely expect—look, if you can read this law...

ABRAMS:  Yes.

LICHTMAN:  ... then you can understand it.

ABRAMS:  I‘ve read it...

(CROSSTALK)

ABRAMS:  No, I‘ve read it in many cases, I have heard lawyers make this argument in many cases and generally they lose.

LICHTMAN:  We are going to have an infected jury pool...

ABRAMS:  Yes.

LICHTMAN:  ... day in and day out, they‘re going to have this drummed into their heads and how are we ever going to get a fair impartial...

ABRAMS:  But that‘s what people say in every high-profile case, every single one...

LICHTMAN:  Well, not every high-profile case has a witness who speaks for 25 hours a week and he‘s also saying things that are not true.  He‘s saying that John Gotti Jr. is facing life in prison.  He‘s not.  He‘s saying that he‘s a murderer.  He‘s never even been charged with murder and he‘s not in this case.  Now, what happens if the jury while they are having their deliberations they start thinking wait a second, I didn‘t even hear that John Gotti Jr. is even accused of murder in this case.

ABRAMS:  You know they‘re not supposed to—the jurors are given very specific instructions.  They‘re not suppose to listen to anything.  If they want to...

LICHTMAN:  If the jurors haven‘t...

ABRAMS:  ... violate the orders...

LICHTMAN:  ... been selected yet, so they‘re listening to it right now.

ABRAMS:  I‘m sorry.  When you‘re talking about deliberations, I thought you were talking about later.  OK...

LICHTMAN:  But they‘re remembering what‘s going on right now in the entire year before the trial.

ABRAMS:  And look, it‘s not a frivolous argument you‘re making.  It‘s one that‘s made in a lot of cases and a lot of lawyers get very frustrated about this issue.

LICHTMAN:  Dan, if I can just say one more thing.

(CROSSTALK)

LICHTMAN:  Just keep in mind another thing, is that, you know, this is the law.  This is the country we live in, we are a country of laws.  This is not Syria.  No matter...

ABRAMS:  All right...

LICHTMAN:  ... who the defendant is, he deserves a fair trial...

ABRAMS:  That‘s true.

LICHTMAN:  ... Curtis has already said that if he‘s gagged, he‘s not going to listen to what the judge says.

ABRAMS:  Well...

LICHTMAN:  He‘s willing to violate the law immediately.

ABRAMS:  Then he‘ll probably suffer the consequences.  Let me quickly ask you, do you think, regardless of whether your client did this or not, do you think that Curtis Sliwa was the victim of a mob hit?

LICHTMAN:  No.  I don‘t know.  Look, I‘m in no position.  I‘m the lawyer.  Understand this.  I‘m not privy to meetings.  I wasn‘t there when this occurred 12 years ago.  I can tell you this.  Curtis Sliwa was shot and I have empathy for him.  I absolutely do.  And I don‘t think he shot himself, which is what a lot of people thought for many, many years.  I don‘t think that‘s the case.  Whether it was a mob hit or whatever, you know, how do I know?  I‘m just the lawyer.  I‘m here to listen to the evidence that the government provides me and to defend my client.  Understand this.  I am a lawyer.

ABRAMS:  Yes.

LICHTMAN:  I am here to protect my client‘s rights and I will absolutely do it with as much power as I have.

ABRAMS:  And I should say while I disagree with Mr. Lichtman on the law, a lot of judges, a lot of judges are now much more willing to grant gag orders in this country because of exactly the issues that Mr. Lichtman brings up.  So, you know, the judge could end up granting it in this case.  Thank you very much, Jeffrey Lichtman.

LICHTMAN:  Thanks Dan.

ABRAMS:  I appreciate you coming on the program.  Let‘s go back to Curtis Sliwa.  All right.  So you‘ve been listening to Jeffrey Lichtman.  What do you make of it?

SLIWA:  We‘re making progress because, Dan, 12 years ago, the way they tried to gag me, the Gottis, Gambinos, through the orders of John Gotti Jr., was to try to kill me twice.  Now at least they are using their spin doctor, their hired voice speech to go into court and try to gag me the legal way through the rule of law.  Boy, that‘s major progress over 12 years.  But I must say he does indicate that we have a very powerful audience in New York, “The Curtis and Kuby Show”.  But I don‘t quite think we have everyone, all eight million residents of New York city listening to all five hours of our program each morning.  I mean he‘s complimenting us.  I‘ll take the compliment...

ABRAMS:  What happens if—because look, I think that the judge shouldn‘t gag you, I do think Mr. Lichtman may be right that the judge will say look, we need to gag him, you know, until the trial happens.  What do you do then?

SLIWA:  Well I‘ll tell you, bullets didn‘t gag me, baseball bats to my head didn‘t gag me, and no judge is going to deprive me of my First Amendment right to free speech.  This is not Sicily.  This is America.  And if the judge decides in her wisdom that I must stay quiet, well, then I‘m going to have to be shut up in jail because she is not going to take the 50,000 powerful watts away from me.  I have been saying the same thing for 12 years and nobody was listening.

ABRAMS:  But you can recognize that it is different now.  Now that the case has been filed, it is different in the sense that, you know, if he were to say look, just shut up until the jury is selected, would you do that?

SLIWA:  Absolutely not.

ABRAMS:  All right.

SLIWA:  Because, remember, I‘m the victim here...

ABRAMS:  And I pointed that out.

SLIWA:  And not only that, Dan, I‘m speaking for a lot of silent victims who are too afraid to speak about the horrors that have been committed against them by John Gotti Jr. and his type from the Gambino crime family.

ABRAMS:  All right.

SLIWA:  I will not rest until he goes straight to hell without an asbestos suit and if my words help speed up the process, so be it.

ABRAMS:  All right.  Curtis Sliwa, Jeffrey Lichtman, thanks a lot. 

Appreciate it.  Look, as I say, I think Curtis Sliwa should win this one.

Coming up, President Bush and Senator Kerry both claim to be religious and have been to churches around the country, but the leaders of those churches not allowed to endorse them, but some of them may be doing it anyway.  Should they?  And what does the law say?

And I‘ve been giving lawyers a hard time lately, but it‘s good to remember lawyer bashing began a long, long time ago—I‘m talking Shakespeare and I‘m providing quotes.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Both President Bush and Senator Kerry cite religion or their faith in almost every speech, but according to the law, tax-exempt religious organizations can‘t support either candidate.  If they do, they risk losing it all, being forced to pay taxes.  Often there is a fine line between discussing issues and endorsing a candidate.  Before we debate that, here is more from NBC‘s Katie Couric.

(BEGIN VIDEOTAPE)

KATIE COURIC, NBC CO-ANCHOR, “TODAY” SHOW (voice-over):  For so many of us, religion reflects the strength of the American way of life.  A supreme being has played a part in American politics ever since George Washington‘s first inaugural in 1789.  On that day, the first president placed his hand on a bible and personally added the phrase “so help me God” to the presidential oath.

UNIDENTIFIED MALE:  So help me God.

UNIDENTIFIED MALE:  So help me God.

UNIDENTIFIED MALE:  God.

UNIDENTIFIED MALE:  God.

UNIDENTIFIED MALE:  God.

UNIDENTIFIED MALE:  So help me God.

COURIC:  This year, though, the prominence of religious and moral issues in politics has been troubling to some religious leaders.  Rabbi Lisa Gelber of the Jewish Theological Seminary.

UNIDENTIFIED FEMALE:  What‘s at stake is maintaining that separation between what goes on in the public sphere and what goes on in the private sphere, that there should be a wall between church and state.

COURIC:  But some theologians see it a bit differently.  Father J.  Bryan Hehir of Harvard‘s Kennedy School of Government, says we don‘t need a wall.

UNIDENTIFIED MALE:  If something looks like a New England rail fence, that there are lines drawn and there is lots of room for exchange back and forth between the spokes of the fence.

COURIC:  The nation‘s founders were so concerned about religion, they addressed it in the First Amendment to the Constitution.  Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.  But since Jimmy Carter‘s public statements about his faith in the 1976 campaign...

UNIDENTIFIED MALE:  I‘m a Christian.  I‘m a politician.

COURIC:  ... it‘s become much more common for politician to address their personal religious beliefs.

UNIDENTIFIED MALE:  I don‘t think there is a fancy way to say that I have sinned.

UNIDENTIFIED MALE:  What political philosopher or thinker do you most identify with and why?

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  Christ.  Because he changed my heart.

COURIC:  This year at churches around the country, voter registration drives stress issues such as abortion, same-sex marriage, and stem cell research.

UNIDENTIFIED MALE:  We‘re working our fingers to the bone.

COURIC:  The Traditional Values Coalition is run by Reverend Lou Sheldon.

UNIDENTIFIED MALE:  Churches can be involved in getting the vote out.

COURIC:  Despite the differences, though, the candidates and clergy agree, the First Amendment is sacred.

UNIDENTIFIED MALE:  We need to guarantee the right of religious freedom for everyone, including the right of the atheists to be atheists.  We need to guarantee that as a right for everyone in society.

(END VIDEOTAPE)

ABRAMS:  That was Katie Couric reporting.  Most religious organizations are nonprofits, therefore exempt from federal taxes.  But according to the Internal Revenue code, if an organization participates in or intervenes in, including the publishing or distributing of statements, any political campaign on behalf or in opposition to any candidate for public office, it could lose it all.

“My Take”—it‘s a very difficult line to walk, what they can and can‘t do.  I‘m going to go through that with my two guests, reverend and an attorney, executive director of Americans United for Separation of Church and State, Barry Lynn, general counsel for the James Madison Center for Free Speech, James Bopp who says the line between church and state sometimes isn‘t as clear as we would like.

All right.  Let me read you what a—because this is according to Mr.  Bopp‘s organization.  The—what a religious leader can do and what a religious organization can do.

Religious leader can personally endorse candidates, but may not do so on behalf of a church.  Allow his name to be used as a supporter of a candidate in political advertisements, but it must be clear the endorsement is not from the church.  Establish a political action committee, but it should be separate from the church.  State the position of a candidate on any issue and comment on that position.  

               

What can a religious organization do?  Distribute voter guides on candidate‘s positions or voting incumbents, but may not state if the candidate‘s position is consistent with the church‘s.  Allow political candidates to speak, but all candidates should be invited.  Provide a list of church members to candidates only if rented at fair market value and may not establish a political action committee.

Reverend Lynn, do you think that‘s happening?  I mean are people abiding by the rules?

REV. BARRY LYNN, AMERICANS UNITED FOR SEPARATION OF CHURCH & STATE: 

Well, I don‘t even agree that those rules are absolutely clear.  I think that Mr. Bopp‘s organization sometimes stretches what, in fact, the law does permit.  But what we‘re seeing this year, frankly, is churches and religious organizations going way over the line, working in conjunction, for example, with the Democratic National Committee to get John Kerry to specific places and then have the pastor on a Sunday morning announce that Kerry is God‘s candidate, or on the other side we‘ve complained to the Internal Revenue Service about the Reverend Jerry Falwell who we feel has used his tax-exempt ministry not only to endorse the re-election of George Bush but even more astonishing to actually direct people from his Web site to a Web site of a political action committee, raising money for President Bush‘s re-election.

So these aren‘t even close to the line, and we‘ve seen this happen over and over again.  The political parties are trying to lure religious organizations into violating the tax laws in some circumstances, Dan, and in others, they just violate it without the lure because they so much want to get the help of one party or the other.

ABRAMS:  Mr. Bopp, sounds pretty dire.

JAMES BOPP, JAMES MADISON CENTER FOR FREE SPEECH:  Well, it is a dire situation when we have people in America that are so hostile to the participation of people of faith that they send spies into church services in order to report preachers preaching from the pulpit to the government and have the government come down on them if they say something that they don‘t like.  The separate—you know, it implicates religious freedom when the government can sit there as a censor and punish a church for what is said from the pulpit.

LYNN:  You know, Jim, we‘re not sending spies into any church.  I don‘t know that this is anything that is happening in any degree around the country.  Most of the complaints that...

BOPP:  These have been reported.

LYNN:  Let me just finish.  Most of the complaints that we get are either from press notices and we follow up and see if the facts are accurate or from members of a church who often start the conversation by saying, you know, Mr. Lynn, I don‘t even agree with you about many things, but in this case our pastor endorsed a candidate for office...

ABRAMS:  All right...

LYNN:  ... and that‘s illegal, isn‘t it?

ABRAMS:  Let Mr. Bopp respond.

BOPP:  But people are free to join whatever church they want to join and if they don‘t like what the preacher is talking about, they can go to another church.

UNIDENTIFIED MALE:  But there are rules...

ABRAMS:  Hang on...

(CROSSTALK)

ABRAMS:  Hang on.  Reverend Lynn, hang on.

(CROSSTALK)

BOPP:  I mean after all, there are significant moral issues that are being dealt with by our government in many ways that are adverse to people of faith going right to the moral core of concerns.  Legalizing gay marriage, abortion, pornography.  And so as a result, people of faith have an interest, legitimate interest in being concerned about, and preachers have a legitimate interest in talking about these issues.

UNIDENTIFIED MALE:  Dan...

ABRAMS:  But Mr. Bopp...

(CROSSTALK)

ABRAMS:  ... hang on a second.  Mr. Bopp, it sounds like what you‘re saying, though, is you don‘t like the law as it exists today.

BOPP:  Well I agree that the IRS‘ current position is that you cannot endorse a candidate, and there is an effort through Congress to change that position.  But where I am concerned is I think Barry takes this extremely broad view.  Anything that might influence an election, we should impose—have the government go police and censor and prohibit and fine, you know, churches for simply talking about moral issues.

LYNN:  You know that simply...

ABRAMS:  Final 15 seconds, Reverend Lynn.

LYNN:  That is simply incorrect.  We believe the standard was a standard set by Martin Luther King.  He talked about moral issues almost every day of his adult life in churches, but never ever did he cross the line to endorse or oppose a candidate for public office.

ABRAMS:  All right.

LYNN:  That‘s a relatively simple line...

(CROSSTALK)

LYNN:  About 99 percent of the time it‘s the one I wish everyone would adhere to in this election cycle.

ABRAMS:  And Mr. Bopp is right that there is legislation in Congress...

UNIDENTIFIED MALE:  There is...

ABRAMS:  ... that might change that.  We‘ll keep an eye on that. 

Reverend Lynn...

(CROSSTALK)

ABRAMS:  ... Mr. Bopp, thank you both very much for coming on the program.

LYNN:  Thank you.

BOPP:  Thank you.

ABRAMS:  Important issue.  Coming up, what does Shakespeare have to do with a program about justice?  I‘ll tell you.  It‘s in my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, an obstetrician basing much of his testimony in the Scott Peterson trial on speculation about when Laci took a home pregnancy test.  One of you says that would tell us nothing.  I read your e-mails coming up.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—I‘ve been thinking a lot lately about why people hate lawyers so much and I have a tendency to blame it on the litigation explosion that people blame lawyers, sometimes rightly, for increasing health care costs and for filing sometimes frivolous lawsuits.  And I assumed the high-profile cases don‘t help where defense attorneys seem willing to say anything to help sometimes seemingly guilty clients.

Then as I was cleaning my office today, I found this book “Shakespeare‘s Insults For Lawyers”, degrading comments about my brethren from a long ways back, reminding me that the animosity is nothing new.  Now after we went back and double checked a lot of these reference, they weren‘t made about lawyers, but I guess the book is saying they could apply now.  A little misleading, but anyway, one of them—quote—“Corrupter of words, Twelfth Night.  You undergo too strict a paradox striving to make an ugly deed look fair.  He has everything that an honest man should not have.  What an honest man should have he has nothing.  It‘s from Alls Well That Ends Well.”  But then there are specific references to lawyers.  Crack the lawyer‘s voice that he may never more false title plead nor sound his quillets shrilly.  And of course, then there‘s the greatest hit from Henry VI.  The first thing we do let‘s kill all the lawyers.  Oh, come on, it‘s not that bad.  Then again the post election legal battles haven‘t starred yet.

I‘ve had my say, now it‘s time for “Your Rebuttal”.  Scott Peterson trial—last night we discussed when exactly Peterson‘s baby was born.  The defense presented a witness that said there‘s no way Conner could have been born before December 29, basing his analysis on when Laci Peterson told a friend she was pregnant, drawing assumptions from that as to when Laci may have been pregnant.  All right.

Margaret Bierman from San Jose, California writes, “All a positive pregnancy test tells you is that you are pregnant.  It says nothing about when conception occurred.”

Not to mention the fact that in this instance, it was hearsay on hearsay.  We talked about many of the defense‘s theories in the Peterson case, one of which is that transients may have taken Laci.

To that, another Californian L.P. writes, “The defense is pointing the finger at transients, homeless people.  So where would they take Laci until they murdered her?  In their shelter?  The roadside trees and tents?”

We‘re out of time.  Thanks for watching.  Have a great weekend. 

“HARDBALL” is up next.

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

END   

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