updated 10/30/2004 4:15:09 PM ET 2004-10-30T20:15:09

Guest: Neil Livingstone, Mickey Sherman, Leslie Crocker Snyder, Mercedes Colwin

DAN ABRAMS, HOST:  Coming up, on the eve of the election a new videotape message from Osama bin Laden.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Speaking directly to the American people, bin Laden admits he ordered the September 11 attacks and warns that Bush cannot protect you.  Question:  Will it have any impact on the election just four days away?  Chris Matthews joins us.

And the judge in the Scott Peterson case allows jurors to consider a lesser charge of second-degree murder.  Plus, after five months of testimony from nearly 200 witnesses, it all comes down to closing arguments.  Last night presented a mock closing for the prosecution, today the defense.

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket, could this be the October surprise for the first time in almost three years?  Osama bin Laden surfaces on videotape, played on the Arabic news channel Al-Jazeera, which described it as bin Laden‘s address to the American people.  The White House says it believes the tape is real, was made recently.  For the first time bin Laden takes responsibility directly for the September 11 attacks, saying in part—quote—“We decided to destroy towers in America.  We are a free people and we want to regain the freedom of our nation.”

Bin Laden also talked about how President Bush‘s slow reaction to the 9-11 attacks allowed them more time to complete their plan.  And he said the best way to avoid “another Manhattan”, quote-unquote, was for the American people to take their security in their own hands.  President Bush commented on the bin Laden tape just moments ago.

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  Earlier today I was informed of the tape that is now being analyzed by America‘s intelligence community.  Let me make this very clear.  Americans will not be intimidated or influenced by an enemy of our country.  I‘m sure Senator Kerry agrees with this.  I also want to say to the American people that we are at war with these terrorists, and I am confident that we will prevail.  Thank you very much.

(END VIDEO CLIP)

ABRAMS:  Democratic presidential contender Senator John Kerry has also reacted to the bin Laden tape saying—quote—“As Americans, we are absolutely united in our determination to hunt down and destroy Osama bin Laden and the terrorists.  They‘re barbarians and I will stop at absolutely nothing to hunt down, capture or kill the terrorists wherever they are, whatever it takes, period.”

So how does it cut?  What kind of impact could a message from bin Laden have on Tuesday‘s election, if any?  I‘m joined now by MSNBC terrorism expert Steve Emerson and Neil Livingstone, CEO of Global Options Incorporated and the author of nine books on terrorism, intelligence and national security and Chris Matthews, host of MSNBC‘s “HARDBALL” and of MSNBC‘s election coverage.

Chris, start with you.  Any impact on the election?

CHRIS MATTHEWS, HOST OF MSNBC‘S HARDBALL:  Well first of all it shows he‘s alive and well, pretty well enough to do this kind of videotape.  He looked fine.  Maybe people can find problems with his left arm or something.  So he‘s alive.  We have not caught him.  He escaped at Tora Bora.  He‘s still a free man.

Secondly, it raises the issue of 9-11 again in very vivid terms, talking about Manhattan, talking about the 50,000 people killed, talking about that terrible day again for Americans, is a plus for the president.  Because it focuses on his concern, the one he has raised throughout this campaign, terrorism, and how he‘d fight it.  It shifts attention dramatically away from the war in Iraq, which hurts the president based upon all the assessments so far.

What else does it do?  It attacks the United States.  It makes fun of the president for being a inherent monarchy basically, a hereditary monarchy.  He said all the Middle East is run by sons of kings and by generals and their sons, so he‘s used to—it was easy for him to deal with Bush, so it‘s a mockery of Bush, and for our involvement in the Middle East starting back in 1982 with our Lebanon attack on the Arabs, which is the first time we fired on Arabs.  So he‘s going to appeal to Arab community and the world using our pro-Israeli alliance, using our support for these many times corrupt dictatorships in that part of the world.  Very smart politics and I think it helps the president.

ABRAMS:  You think it helps the president?

MATTHEWS:  Because it raises the issue of 9-11 which is always a plus for the president.  His handling of 9-11 is universally applauded.  The president was very good at rallying this country and the world against what happened on 9-11.  Not so successful with regard to waging a war and justifying the war in Iraq.

ABRAMS:  And this is a different electorate, is it not, than for example some in European countries where if this kind of tape were issued and directed towards, you know, France, Spain, some other country there, there might be—isn‘t there a sense that the American electorate has a way of saying you know what, you‘re not going to have any impact on us.  We‘re not going to let you influence our election.

MATTHEWS:  Well it‘s a dumb show in a sense because it suggests that he—if you read it literally, you‘ll say he‘s calling for the defeat of President Bush when in fact everyone you would think with any brain on this planet would know that‘s a way to get people to support President Bush in this country, but it‘s impossible for us to know whether he‘s being ironic, clever, shrewd or stupid, but we do know literally he‘s calling for the defeat of the president...

ABRAMS:  Bottom line...

MATTHEWS:  ... and that‘s going to be useful to the president.

ABRAMS:  Bottom line, you think it will have a plus impact on the president?

MATTHEWS:  Well let me give you an example.  During the Cold War Khrushchev very much liked John Kennedy.  When he became president, he said I was rooting for you during the campaign against Nixon, but I did you a favor of never saying so.  Well, Saddam Hussein is not doing a favor to John Kerry.

ABRAMS:  Yes.  All right.  Stick around for one second.  Let me just -

·         let me bring in the terrorism team here.  All right.  Steve Emerson, you know, is bin Laden a wise enough, wily enough, smart enough guy to be saying OK, I‘m going to attack President Bush but know that that‘s actually going to help him and that‘s what I want to do in the end?

STEVE EMERSON, MSNBC TERRORISM EXPERT:  Good question, Dan.  I don‘t think, you know, we try to predict up for the last few weeks what would have happened if there would be an attack in the United States and everyone sort of predicted that everyone would rally around the president.  The question is really what is bin Laden trying to do here?  Is he really trying to manipulate public opinion to go against the president and believing that actually it‘ll backfire in a very machiavellian way?

Obviously, he reads—he sees the Internet.  He‘s obviously watching all of the cable shows.  He‘s watching everything very assiduously and he‘s trying to read public opinion here in the same way that I think he tried to read correctly the public opinion in Madrid, as in Spain, as well as in Europe in the last few months.  Here I think Chris is right.  It will backfire on him because I think the public will rally around the president in knowing that this is a direct threat to the United States, although you must realize that in his rhetoric, Dan, it‘s like the extreme makeover of TV shows.

He‘s very soft spoken.  He‘s not really threatening blood except for one citation where he says blood will run in the streets.  Otherwise, he‘s saying you Americans have the ability to change your own security.  I don‘t think this will really wash with the American public.

ABRAMS:  And Neil, he‘s talking a new tune here to a certain degree as well.  Suddenly talking about 1982, as if that was the moment when al Qaeda sort of hatched its plan.  He used to be talking about the Saudi monarchies all the time.  He shifted the discussion to the Middle East it seems only in the mid ‘90‘s.

NEIL LIVINGSTONE, CEO, GLOBAL OPTIONS INC.:  That‘s true and it‘s an interesting timeframe to do this, considering that we saw Arafat leave the Middle East last night, go to Paris for treatment today.  In other words, he‘s used infrequently but to some effect the Middle East conflict between the Arabs and the Israelis from time to time and he said look, the United States blessed the Israeli invasion of Lebanon in 1982 and that was one of the catalysts for me wanting to attack the United States.

Now that‘s another wild card in this because that may indeed—that brings in the Middle East issue.  It may mobilize Jewish Americans to some extent, who have strong feelings one way or the other.  So it‘s another wild card in this whole presentation that he made.

ABRAMS:  So Chris, this may be more a statement about the Middle East than it is any desire...

MATTHEWS:  Well...

ABRAMS:  ... on his part to affect the election.

MATTHEWS:  We‘re talking here about a very shrewd politician who is leading people to their deaths.  That‘s how good a politician he is.  He‘s got all these people in al Qaeda willing to give their lives for his cause.  He knows the political nerve endings of the Arab people.  He knows they‘re mad about our support for Israel—no surprise there.  He knows, as he pointed out years ago, after 9-11 that the Arab people were still mad about the fact that it was the British empire and the French empire that divided up that part of the world with Churchill riding on a camel, draws a few maps.  All of a sudden they‘re countries.

And he knows that they‘re angry about the fact that whether we intended it or not, when we got involved in Lebanon back in ‘82 and all through ‘83 before the Marine barracks was blown up and we left, that we were shooting at Arabs for the first time in our history.  So he knows the sensitive points in the history of the Arab-American relationship and he‘s playing on it brilliantly.  Who‘s to know—I think you asked a good question—why now the Lebanon situation?  Why before did he talk about how the countries were created?  Why does he talk about Israel sometimes?  He clearly is playing on Arab sensitivities very brilliantly.

ABRAMS:  And yet he‘s careful not to sort of all out say, you should elect Kerry versus Bush.

MATTHEWS:  Well he did cover himself in that one line when he said both of them are to blame.  But clearly you read it as everyone will read it, as the trashing of the president.  He treats him as another one of these idiot sons of a monarchy over there that got their job entirely by heredity and that is the case in a large part of the world.  Look at Basra and Saud (ph).  Look at what Mubarak wants to do is promote his son.

All the monarchies over there are based on heredity.  And he makes it sound like Bush somehow got his job because he happens to be the son of his father who gave—created this governorship in Florida and created his son‘s presidency.  He says I have no difficulty dealing with this presidency because it‘s so much like the Middle Eastern rotten dictatorships and that‘s a funny line.  I‘m sure the Arabs love that.

ABRAMS:  Yes...

MATTHEWS:  Because it does bear that kind of superficial resemblance.

ABRAMS:  And he also tries to, of course, blame Bush for more deaths in 9-11, saying...

(CROSSTALK)

ABRAMS:  ... talking about sitting with the kids...

MATTHEWS:  Well that is so horrible.  Let‘s think about...

ABRAMS:  ... yes...

MATTHEWS:  ...here.  Forget East-West, ethnicity and history and blame and grievance.  To support the killing of 50,000 people who were actually working in those buildings...

ABRAMS:  Yes.

MATTHEWS:  ... and we were lucky because of the courage of the firefighters and the organization of some of those officers to get out of there alive.  He tried to kill 50,000 people.  He killed about a tenth of that number because our people were courageous enough and organized enough to get out of there.  But he certainly shouldn‘t blame Bush for...

(CROSSTALK)

MATTHEWS:  ... the numbers involved.  Clearly, he‘s...

(CROSSTALK)

MATTHEWS:  ... trying to play some sick game there and that won‘t work with the American people, not that any of this will.

ABRAMS:  All right.  For more on, of course, how this is going to impact the election, watch Chris Matthews tonight at 7:00 p.m. on “HARDBALL”.  Chris, thanks.  Good to see you.

Coming up, more on the Osama bin Laden tape.  We‘ll look at it from the terrorism angle.  What message is he trying to send to the Arab world?

And last night I gave my version of the prosecution‘s closing argument in the Scott Peterson case.  Tonight I take the role of the defense attorney.  My version of what I think Mark Geragos might tell jurors next week.

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a new tape released today by Osama bin Laden, speaking directly to the American people.  He says it doesn‘t matter who we pick for president.  The question:  Does he know exactly what he‘s doing and why?  It‘s coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE (through translator):  We did not find it difficult to deal with Bush and his administration because of the resemblance between him and the regimes in our countries.  Half of them are ruled by the armies and half of them are ruled by the sons of the kings.

(END VIDEO CLIP)

ABRAMS:  In the last few hours, this videotape of Osama bin Laden, which authorities believe is authentic, has been released.  He attacks President Bush, although claims to be taking no position between President Bush and Senator Kerry.  Certainly attacks President Bush far more on this tape.

I‘m joined by terrorism experts Neil Livingstone and Steve Emerson.  All right.  Neil, let me direct a question to you that I asked Steve a moment ago and that is about whether bin Laden is “A”, sort of smart enough and “B”, understands American politics enough to be basically attacking Bush and yet knowing that that will likely backfire and help Bush.  Is that something he might be trying to do?

LIVINGSTONE:  Well, I think this is kind of a hand handed effort to influence the election, but it‘s also an effort to influence opinion, not today but on Wednesday in the Arab world.  In other words, if, like in Spain, where they carried out a bombing before the election and they toppled the existing government, if Bush is defeated on Tuesday, bin Laden is going to take credit for that.

That‘s what‘s going to come out of this and he‘s going to say I frightened the American people.  I talked to them and they defeated the Satan Bush and what he‘s going to say at that point is maybe I can do business with this new Kerry administration, unlikely and I‘m sure that Kerry is going to follow through with the same tough policies, but the fact remains that this is an effort to try to show that he can effect major events on the world stage.

ABRAMS:  But the difference, Steve, when you compare it to Spain, for example, is that there, yes, it seems pretty clear it impacted the election, but then they followed through and did remove their troops from Iraq, exactly as they had demanded.  It is clear that no American, be it President Bush or Senator Kerry, is going to capitulate to whatever demands Osama bin Laden is making.

EMERSON:  Well actually, Dan, what‘s interesting here is that he doesn‘t really make any demands.  In fact...

ABRAMS:  He‘s saying you better change your policies...

EMERSON:  Yes.

ABRAMS:  ... or you‘re going to find another 9-11.

EMERSON:  Exactly.  But he doesn‘t really say what and as far as I can tell so far I haven‘t seen any reference to Iraq.  Interestingly enough, that‘s where you would have thought he would have made his big splash here because that‘s the big natural common denominator for him to appeal to the Arab masses.  He really seems to be, I think you correctly noted here, appealing to the American public.  It‘s a very—quote—“moderate message” compared to the other, you know, slash and burn messages.

ABRAMS:  So why?  Why is he giving a moderate message?

EMERSON:  Well first of all, I think when he makes reference to the fact that the president waited seven minutes before he did anything, that‘s a direct, you know, I think recall, you know, or resurrection of the Michael Moore type of accusation, which I thought was ludicrous, but I think he‘s picking up on some of the things he‘s watching on obviously satellite TV.  He‘s picking up on all of this stuff and he thinks maybe he can manipulate the public by appealing to those things that he thinks have already resonated with the American public.

But your—the question really is what does he really want here.  Look, the fact is if he could have carried out another 9-11 he would have done so.  In the absence of doing that, the only thing he can do is release a tape like this, which really throws a monkey wrench into the American political scene.  Obviously, we‘re seeing—waiting to see what the campaigns are going to say.  The president already released a 60-second, you know, statement in the press conference that was not very impromptu.

The question is really now how will the American public react?  My feeling is they‘re going to say this is bin Laden trying to scare us again.  We‘re going to rally behind the president.

ABRAMS:  But what if, Neil, it has no impact?  Meaning, what if the polls stay exactly the same and people do sort of what you kind of hoped they would do, which is just say I don‘t care what this guy says.  Could that actually weaken bin Laden in the Arab world or will they just spin it and make it seem like he had an impact?

LIVINGSTONE:  Well look, he‘s got a 50 percent chance according to the polls right now that he can claim some credit for Bush‘s defeat if indeed Bush is defeated on Tuesday.  But I think he may well have some impact that is real.  There are—you know, we know that the female vote is not interested this year as much in education and health care and other traditional issues, but the soccer moms are very concerned about security.

And this is the kind of thing that may send another one or two percent of those people into the Republican column.  On the other hand, from Kerry‘s point of view it may also remind people that Bush has failed to bring Kerry to justice, to kill him or capture him, that he‘s still out there.  He‘s still making threats against the United States and he still needs to be dealt with, so it could cut either way and it may have some real impact on the election.

ABRAMS:  And I guess that‘s why it‘s hardly surprising that both candidates are being so careful in the way that they respond to this, Steve.  I think that they probably have both political advisors and terrorism advisors on both parties—both candidates, saying to them, be very, very careful here, not to even respond in a way to what bin Laden is saying.

EMERSON:  Well, I think you‘re right, Dan.  First of all, if the president let‘s say overreacts, Dan, by raising let‘s say the threat level, then the Democrats will accuse the president of deliberately manipulating or politicizing this.  If he under reacts, then the Democrats will make the claim, you know, likewise.

On the other hand, if Kerry pulls this out and says this is evidence of why the administration lost the war on terrorism, I think the Republicans can rightfully claim that this is politicizing on their side.  So everyone is going to be very cautious.  I think there‘s not going to be much of an official reaction here...

ABRAMS:  Yes.

EMERSON:  ... and I think that, you know, the fact is he is now betting on the fact that Bush will lose so he can claim if in the event that does happen, see I manipulated the election.  It‘s better than not having any effect at all.  That‘s why he released this three days before the election, otherwise he could have waited right after the election and said you see, you guys deserve what you got.

ABRAMS:  Yes.  All right.  Let me play another piece of sound.  Again, this is more I guess you could characterize as Bush bashing by Osama bin Laden.  This released today.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE (through translator):  Despite almost four years past after September 11, Bush still practicing his way of trying to prevent you from knowing the real reasons.  The reasons are still there for repeating what had happened.  I want to talk to you about the reasons behind these events and I‘ll be honest with you.  That the moment that we talk—the decision, let me say to you that God only knows that we never thought about attacking the towers, but after we have had enough and we saw the American oppression and the coalition with the Israelis against our people in Palestine and Lebanon, this idea came to our minds.

(END VIDEO CLIP)

ABRAMS:  All right.  Let‘s be clear here Steve.  This is lies, right? 

Straight out, all out lies based on what you know about al Qaeda, right?

EMERSON:  First of all, al Qaeda didn‘t exist in 1982.  Bin Laden himself was still basically a playboy operating out of Saudi Arabia as a rich member of the bin Laden family.  He really didn‘t get involved with the jihad movement until 1985.

ABRAMS:  Yes...

EMERSON:  So number two, he‘s also not very sympathetic with the Palestinians.  He didn‘t even mention them in all those years in the 1980‘s, in the late 1980‘s when he was still active in the jihad or beginning to get active.  Even in the early ‘90‘s he didn‘t use this.

Number three, he‘s now using the argument somehow retroactively that this was the—no, he didn‘t really mean to kill any American citizens.  That it was Bush‘s fault and that in fact it was due to our support for Israel.  This is a retroactive effort to basically garnish support in the Muslim world...

ABRAMS:  Yes.

EMERSON:  It‘s exploitation.

ABRAMS:  Yes.

EMERSON:  It‘s demonstratively false and he knows it I‘m sure himself.

ABRAMS:  I‘m sure—I just think it‘s so important to put that into context because I just would hate—I have got to end this segment here—but I would just hate to end the segment with people thinking that there was any truth to what you just heard there, because you know, as Steve and Neil well know, this is revisionist history.  This is Osama bin Laden‘s platform and his effort to sort of get out whatever reasoning he now wants to use.

Steve Emerson, Neil Livingstone, thanks very much for coming on the program.  Appreciate it.

EMERSON:  Sure.

ABRAMS:  Coming up, jurors in the Scott Peterson case were not in court today, but the judge and attorneys were.  The judge rules that jurors can consider the lesser charge of second-degree murder.  And with Peterson‘s attorney set to present his closing argument next week, I‘ll present by closing argument, an abbreviated version of how I think the defense might wrap up its case.

(COMMERCIAL BREAK)

ABRAMS:  We continue our coverage of this new tape released by Osama bin Laden.  It is the first tape in three years that bin Laden has released.  According to authorities, they believe it is authentic.  We heard moments ago from President Bush.  And now we have just gotten in—do we have this?  OK.

We‘re just racking up the tape as we speak of Senator Kerry, who has just made a statement with regard to this tape.  Again, President Bush saying that he thought that Senator Kerry would agree with him.  Effectively just talking about how Osama bin Laden needs to be defeated. 

Here‘s Senator Kerry‘s response.

(BEGIN VIDEO CLIP)

SENATOR JOHN KERRY (D-MA), PRESIDENTIAL CANDIDATE:  I‘m just going to make one quick statement, no questions.  (UNINTELLIGIBLE) In response to this tape of Osama bin Laden, let me just make it clear, crystal clear.  As Americans, we are absolutely united in our determination to hunt down and destroy Osama bin Laden and the terrorists.  They are barbarians, and I will stop at absolutely nothing to hunt down, capture, or kill the terrorists wherever they are, whatever it takes.  Period.  Thank you.

UNIDENTIFIED FEMALE:  What do you think of the timing, Senator...

(CROSSTALK)

UNIDENTIFIED FEMALE:  What do you think of the timing?

(END VIDEO CLIP)

ABRAMS:  See there Senator Kerry and President Bush both walking very carefully around this tape, and certainly neither attacking the other.  Both attacking Osama bin Laden.  We are going to take a break.

When we come back, we‘re going to have the latest on the Scott Peterson case—a big ruling from the judge today, which could impact the ruling.  And last night I presented my version of the prosecution‘s closing argument.  Tonight I take on the defense.  Coming up.

(COMMERCIAL BREAK)

                *

ABRAMS:  Coming up, closing arguments in the Scott Peterson trial don‘t start until Monday, but I made one for the prosecution last night.  Tonight I tell you, the jury, why Peterson could be acquitted, but first, the headlines.

(NEWS BREAK)

ABRAMS:  We‘re back.  Now to the Scott Peterson case.  Court in session today.  The judge making a big ruling that it could impact whether we get a verdict in this case.  Edie Lambert from NBC affiliate KCRA joins us.

So Edie, the judge is going to allow the jurors to consider a lesser charge, correct?

EDIE LAMBERT, KCRA REPORTER:   That‘s right.  The jury will be able to consider second-degree murder in addition to first-degree murder.  This is routine here in California and it really comes down to a sense of premeditation.

Let me give you the simple version of these.  Second-degree murder would be he did it and he meant to do it.  First-degree, he did it, he meant to do it, and he planned it.  Now many legal analysts are calling this a win for the prosecution because if any of these jurors are on the fence, they may be able to convict with that lesser degree.  Second-degree murder convictions, of course, would spare Scott Peterson the death penalty.  It would make him eligible for up to 30 years in prison.

Now I can also tell you there was another key ruling that your viewers might be interested in and that‘s our ability to bring you coverage of the verdict live as it happens.  Judge Delucchi changed his mind.  He said that he will not allow cameras in the courtroom for the verdict and Dan I can tell you he called that a matter of protecting the family‘s dignity.

Back to you.

ABRAMS:  All right.  Edie Lambert, thanks.  Appreciate it as always.

All right.  So closing arguments in the Peterson case—sorry, my fault.  Closing arguments in the Peterson case set for Monday.  I am presenting my closing argument for each side.  I took on the prosecution‘s closing yesterday.  Today I give my sort of quickie version of what the defense may argue.

Ladies and gentlemen, Scott Peterson loved Laci.  He loved her spark.  He loved her smile.  He misses her each and every day.  On December 24, Scott Peterson‘s wife and son were taken from him.  You heard their relatives and friends testify that they saw Scott and Laci, the loving couple.  He was looking forward to having a baby.

But there was something that some did not know and prosecutors have proved that beyond a reasonable doubt.  They have proved that Scott Peterson could be selfish.  They proved he lied to Laci‘s family, to Amber Frey and at times even to his own family, including to Laci herself.  If this were a perjury case and he had said those things under oath, we would plead guilty.  It‘s not.

Scott Peterson is charged with premeditated murder.  So their theory as to how Scott killed Laci?  They don‘t have one.  How about when he did it or how he premeditated it?  Nothing.  They seem to be suggesting he killed her the night before.  That would mean he waited until it was light out to take her body to the exact location he told police he was fishing?  This is a case where the Modesto authorities got their man within hours of arriving at Scott and Laci‘s home.

Their man was Scott Peterson.  As a result, they never truly evaluated the evidence.  Now the police figured it must be the husband and then made the evidence fit their theory.  The prosecution‘s case really boils down to three issues—where the bodies were found, Scott‘s behavior after Laci went missing and Amber Frey.  That‘s it.  Let‘s go through them.

There‘s no question that someone wanted to make it look like Scott Peterson killed Laci.  There‘s no other explanation for how those bodies ended up near where he went fishing.  Who was it?  Why did they do it?  I don‘t know.  Believe me, no one would like to know more than Scott Peterson.  But that‘s the prosecution‘s job to find out, not ours.  They have the power to get search warrants and question witnesses, not us.  I do know that from day one, Scott Peterson told every police officer who asked the same thing.  That he was fishing.  Where?  The Berkeley marina.  When?

The day Laci disappeared.  Why would he put himself at the scene of the crime if he knew he dumped the bodies there?  They say he weighed down the bodies with concrete anchors, but again that‘s just an unsubstantiated guess.  They haven‘t recovered any anchors.  They‘ve heard the prosecution suggest there was missing concrete from Scott‘s home.  Well you recall Scott says he made a boat anchor and you heard Steven Gebler, an expert in concrete, testify that Scott told the truth when he said he used the concrete to repair his driveway.

But that doesn‘t fit into their theory of Scott building five anchors so they ignore it.  How about his behavior?  Well it‘s pretty clear Scott Peterson was scared.  He knew the police had their sights set on him.  That‘s why he repeatedly went back to the marina before Laci was found to try to find witnesses to help his case.  He was scared and he was alone, with the police taping all of his calls and leaking information to the media suggesting he was guilty.

He was behaving erratically considering the circumstances, which brings me to Amber Frey.  Scott liked Amber Frey.  He had an inappropriate affair with her.  And as each day passed without any news about Laci, he had almost no one else to turn to.  Did he say things he shouldn‘t have?  Of course.  Were some of his comments inappropriate?  Absolutely.  But remember, with police monitoring his every move, he was acting erratically, even with her, sometimes talking about being with her.  At other times talking about points of—quote—“contention between us.”

And remember, everything you heard on those tapes was after Laci went missing, after the police had the world turning against him.  Before she went missing, they‘d only seen each other four times and that‘s the motive for this murder?  But there was one thing Scott never wavered about, ever, no matter who asked, from the police, to Amber Frey to Laci‘s brother, to his mother, to the media.

(BEGIN AUDIOTAPE)

SCOTT PETERSON, ON TRIAL FOR MURDER:  Well I am not involved in the disappearance of Laci.

(END AUDIOTAPE)

(BEGIN VIDEO CLIP)

PETERSON:  I had absolutely nothing to do with Laci‘s disappearance.

(END VIDEO CLIP)

(BEGIN AUDIOTAPE)

PETERSON:  I had nothing to do with her disappearance, Brent.

Craig, you—I had nothing to do with Laci‘s disappearance.

(END AUDIOTAPE)

(BEGIN VIDEO CLIP)

PETERSON:  I had absolutely nothing to do with her disappearance.

(END VIDEO CLIP)

ABRAMS:  And the evidence supports that.  They focus on suppositions and possibilities.  We want you to focus on hard evidence.  There was not a single piece of physical evidence relevant to this case found in that home.  No blood.  No blood, no sign of struggle.  Nothing.  As for the investigation, they didn‘t even test the house, the supposed crime scene for fingerprints.  Why?  Because they assumed Scott was guilty.

They didn‘t test some of the evidence found with the bodies either. 

So really it‘s hardly surprising that they didn‘t follow up on other leads.  They already had their man.  In the year after Laci went missing, the authorities ignored or failed to interview witnesses who thought they saw Laci walking her dog in Modesto that morning.

And how about that pregnant prosecutor who looked a lot like Laci?  She calls in warning that maybe this is a case of mistaken identity, that she had been threatened by a defendant.  She had walked in Laci‘s neighborhood with her dog who had the same name as Laci‘s dog, Mackenzie.  That maybe the killer mistook Laci for her.  Ignored.  They already had their man and they ignored at least four witnesses who saw a mysterious van in the neighborhood that morning.

They even ignored a witness who said he saw Laci being pushed into a van.  No need to investigate that either.  And yet the detective, Allen Brocchini, admitting he omitted information from his official report, information that would have helped show why Laci Peterson‘s hair might be in Scott‘s boat for perfectly innocent reasons.  She had been in the boat.  That is, if it was her hair at all.

But that didn‘t fit their theory.  And remember the prosecutor is telling you at the outset that Scott could not have been watching Martha Stewart on TV with Laci when he left their home because Scott had said she was talking about meringue.  They told you (UNINTELLIGIBLE) Martha did not discuss meringue on that show.  We played the tape, the meringue reference and all.

This investigation in and of itself provides enormous reasonable doubt.  Let me just briefly talk about the arrest.  They tried to characterize Scott as a man on the run to Mexico, but even though we have no burden, we‘ve shown you that he knew he was being followed.  He was trying to evade the media.  He was arrested at a golf course.  What was he doing there?  He was on his way to play golf, but again, that doesn‘t fit into their theory.  Think about this.

According to them, it is just a coincidence that in this sleepy bedroom community, there was a robbery across the street from the Peterson home, sometime after 10:33 in the morning on the same day Laci disappeared.  Seventy-five pieces of jewelry and two guns stolen at around the same time Laci disappears.  Coincidence.  Then the Peterson‘s own home is robbed a few weeks later.  Again, coincidence.

And then there‘s one issue that if you even question, you must find Scott not guilty.  The age of baby Conner.  Through cross-examination of their expert, Dr. Greggory DeVore, we showed that even he could not tell you that the baby did not live beyond December 24.  Remember, it‘s their burden of proof.  Our expert, Dr. Charles March, believed he lived at least until December 29.

Now remember, if Conner died any time after December 24, Scott Peterson could not be responsible.  He was being monitored after that time.  If you have any question about that, you must find him not guilty.  The question here is did the prosecution prove beyond a reasonable doubt that Scott premeditated and then killed his wife?  I submit to you we have proved he is stone cold innocent.  But at the very least, there is more than reasonable doubt.  I ask you to find Scott Peterson not guilty.

So, did I make my case?  Did I make the case?  When we come back, our legal team weighs in.  And we hear what you had to say about my version of the prosecution‘s closing argument when I read your e-mails coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

ABRAMS:  Please don‘t lose focus of the big picture here.  There are possible innocent explanations for some of the evidence and you will hear them from the defense, but not for all of the evidence taken together, taken as a whole.  There is no other reasonable explanation for what happened to Laci Peterson.

(END VIDEO CLIP)

ABRAMS:  That was my closing argument for the prosecution yesterday.  I just presented my closing argument for the defense.  Joining me to tell me what I missed, what I should have hit on, my jury tonight, former New York State judge and NBC News analyst, Leslie Crocker Snyder, criminal defense attorneys Mercedes Colwin and Mickey Sherman.  All right.  Mickey gives it a 7.5.  Oh Mickey...

(CROSSTALK)

MICKEY SHERMAN, CRIMINAL DEFENSE ATTORNEY:  Which was better than the French judge by the way.

ABRAMS:  Yes...

(LAUGHTER)

ABRAMS:  I get an eight from Leslie Crocker Snyder and a 9.5 from Mercedes.  Very nice.  All right.  So let‘s start with the lower one.  All right.  So Mickey gives me a 7.5.  So Mickey, what do you think that I missed that I should have hit on for the defense?

SHERMAN:  Style, you moved around a little bit too much.

ABRAMS:  Yes.  All right.

SHERMAN:  But for a TV lawyer, Dan, you really did fantastic...

(LAUGHTER)

SHERMAN:  ... I‘ve got to tell you.

ABRAMS:  For a TV lawyer...

SHERMAN:  The only thing—really, I think you hit everything you really needed to hit.  The only thing that I may have mentioned is to kind of remind the jurors that they‘re not there to do a nice thing for the Rocha family, that we also mourn their loss but you know, giving them some measure of hope by finding this guy guilty when the evidence really may not support it is not really doing the right thing, as much as they want to heal their wounds.  Let them know that sympathy is not part of their deal.

ABRAMS:  All right.  Leslie, and I only got an eight from Leslie.  So Leslie, what did I need to add...

LESLIE CROCKER SNYDER, FORMER NY STATE JUDGE:   Well incidentally I loved your prosecution summation.  I think you had a much tougher job here.  But here are my points.  I think you have to address the fact that the judge is submitting murder two and I know you prepared this before you knew that, but I think that‘s a really important point because you want to tell the jury they can‘t cop out on murder two.

It‘s too easy for them.  That he didn‘t have any intent to commit the crime.  It‘s not just premeditation.  Second of all, I think that I would emphasize just a little bit more, you did it, but you didn‘t say it this way, this is just my take.  You know, the prosecution is asking you to look at the whole picture, but that‘s because when you analyze each and every piece, each and every piece fails.  You did that in effect, but you know, because you used that language on your prosecution summation, I want to hear it...

ABRAMS:  It‘s not fair for me to rebut myself, you know...

CROCKER SNYDER:  Yes, you have to.

ABRAMS:  ... so I‘m sort of going into it blind each time. All right...

CROCKER SNYDER:  Very good job.

ABRAMS:  Thank you.  Mercedes.

MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY:  Hey I thought it was excellent, Dan.  I mean the only thing I would have added is really hit home on sympathy, just to follow up on Mickey‘s point.  But other than that I thought you were great.  You brought up the fact acknowledge it all, acknowledge that hey, he‘s a jerk, he‘s lied to his family, lied to his friends, lied to Amber, but just bring it all out there, all these terrible things.  That doesn‘t make him a killer.

And I especially liked that you marshaled in all of these issues regarding the forensics or lack thereof because that‘s critically important to that jury.  Here they‘re imagining that she was bludgeoned or that she was murdered in a horrific way but there‘s no evidence of it.  We can‘t tell you how she died, how she was killed, whether he planned it, could he have planned it.  I mean all of these things, I think that was great.

ABRAMS:  And Mickey, I think the argument that I posed about him being erratic is a sort of explanation that they have to make.  They have to sort of gloss over it, not get too detailed in to why he told certain people certain things—they‘ve just got to generally deal with the fact that he was behaving erratically because he thought that the police were following him and after him at all times.

SHERMAN:  And also you actually answered your own question before because you said you know what‘s the answer for this or that.  Hey, I don‘t know.  I don‘t have all the answers, but they have got to have the answers.  All they‘re doing is raising questions.  You‘ve got to remind the jury that you‘re not there to prove anything.  You‘d love to deliver the bad guy, but all you can do is point out to them that the state has not proved this case with reliable, credible and actual physical evidence.

CROCKER SNYDER:  But you know Dan...

(CROSSTALK)

ABRAMS:  Leslie, go ahead...

(CROSSTALK)

ABRAMS:  Leslie, go ahead...

CROCKER SNYDER:  ... also I think that I‘d like to hear the words reasonable doubt a little more and I‘d like to hear the words doubt.  It always drove me crazy as a prosecutor and a judge that the defense always talks about there‘s a doubt about this, there‘s a doubt about that.

ABRAMS:  Yes.

CROCKER SNYDER:  You throw in reasonable occasionally.  I‘d like to hear the word innocence less because you want to emphasize proof beyond a reasonable doubt.  They haven‘t done it.  There‘s a doubt about...

ABRAMS:  Yes.  If I had more time, one of the things I would have done was to go through various evidence and say there‘s doubt about that and then go through another piece and say, you know, there‘s doubt—because what the defense really needs to do is isolate the evidence and say you‘re not going to convict based on this single piece, are you?  You‘re not going to convict based on that piece.  Unfortunately, you know, I only had seven minutes.

COLWIN:  Dan...

ABRAMS:  Go ahead Mercedes...

COLWIN:  Dan, I also think that Geragos really has to stay away from his Dr. March.  I mean he definitely has to stay away from his expert because...

ABRAMS:  But as long as he...

(CROSSTALK)

ABRAMS:  ... throws it up there and says look even...

(CROSSTALK)

ABRAMS:  ... that‘s why I was sort of careful with that, I said look our cross-examination showed their guy wasn‘t even so sure, so you know what...

COLWIN:  Exactly.

ABRAMS:  ... our guy says this, their guy says that, bottom line is if you have any doubt about it.

COLWIN:  Exactly.  And also I think Geragos really did an effective job with their pathologist over and over and over again during cross-examination.  He just didn‘t pull it through on his case in chief.

ABRAMS:  Yes...

SHERMAN:  Dan, you—also you did was I don‘t think you even know you did—and that is using the technique of putting it up on the screen.  As you know I‘m familiar with that unfortunately.

ABRAMS:  Yes.

SHERMAN:  And I don‘t know that the—they‘re going to do that in these final arguments but did you it and I think you did it as a TV aid, but it should be a visual aid the way it was done in court and that‘s what both sides should be doing especially Mark Geragos.

CROCKER SNYDER:  But you know Dan, there‘s one point.  I think you could do a brilliant prosecution rebuttal and they do get rebuttal...

ABRAMS:  Oh yes.  Oh yes.  No, I know.  And you know...

COLWIN:  All they have to keep showing is pictures of Laci.

ABRAMS:  I‘m—yes—I‘m done with my closing arguments for both sides.  Mickey, 7.5?  I‘d love to see your closing argument on this, by the way, buddy.

(LAUGHTER)

SHERMAN:  There‘s got to be room for something.

ABRAMS:  Anyway...

SHERMAN:  I‘ve got to give you some room to improve on.

ABRAMS:  Yes.  Exactly.  All right.  It was a lot of fun.  And Judge Snyder, Mercedes Colwin, Mickey Sherman, thanks a lot.

COLWIN:  Thanks Dan.

CROCKER SNYDER:  Thank you.

ABRAMS:  Coming up, your e-mails on my closing argument for the prosecution.  And Bill O‘Reilly settles his sexual harassment lawsuit.  One of you pointing out that O‘Reilly speaks about Michael Jackson so should O‘Reilly now be treated the same way about settlements?

(COMMERCIAL BREAK)

ABRAMS:  Coming up, you‘ve heard “My Take” on the closing arguments from both the prosecution and the defense in the Scott Peterson case.  Now we get your take on how convincing I was, after this.

(COMMERCIAL BREAK)

ABRAMS:  All right.  I already presented my closing argument on the Peterson case, so now it‘s time for “Your Rebuttal”.

Joanne White writes about a comparison one of my guests made between the Michael Jackson settlement and the Bill O‘Reilly settlement.  I said any time someone pays big bucks, I presume they did something wrong, but at least O‘Reilly didn‘t claim it was all false, as did Jackson.  At least O‘Reilly seemed to admit he made the comments but said essentially they were taken out of context.

“My interpretation of the tone from your little speech is that you think O‘Reilly deserves credit because he said he made a stupid mistake, even though he may be guilty.  But you and your self-righteous indignation already think Jackson is guilty no matter what he says.”

Gail from San Diego, California.  “You seem to imply that O‘Reilly was better than Jackson because he admitted he did something wrong.  So what are you saying Dan?  That Jackson should admit he‘s guilty even if he feels he is not?”

All right.  To both Gail and Joanne, I think they are—that they both probably did close to what their accusers claim.  And so Jackson may be lying while O‘Reilly just isn‘t coming clean.  There‘s a big difference.  But more important, for to you suggest that molestation of a child is comparable to unwanted dirty talk to an adult just shows how skewed your values are.

David Lipton (ph) from Brookline, Maryland.  “The public should demand the so-called “No Spin” zone becomes a no cover-up zone.”

And than about my mock closing argument for the prosecution in the Peterson case.  Vivian O‘Brien, “Sure hope the real prosecutors in this case were watching.  It was so good.  After watching your presentation, I now see how the jury could absolutely convict him without a doubt.”  Thank you Vivian.

Terry Walker from Georgia.  “You did a very good job at showing how the defense theory did not make sense.  The prosecution needs to have you on their team.”  Terry, thanks.

But Dailey Pike from Los Angeles.  “I Ti-Vo‘d your prosecution closing argument.  I plan to play it back when I‘m having trouble sleeping.”

And then Ronald Bickham from Louisiana seems a little confused.  “What was that closing argument?  It sounded like something a prosecutor would write.  Where is the fairness?  You need to get your money back from that law school.”

OK Ronald, I was giving a mock closing argument for the prosecution.  It was supposed to sound like a prosecutor.  So I guess I was so convincing that should I donate some extra money to Columbia Law School this year.

Your e-mails, one word abramsreport@msnbc.com.  We go through them at the end of the show.

All right.  A reminder, there is a new way to get involved in the show.  We now have our own blawg “Sidebar”.  It is called blawg—law in the middle—about justice.  And you can get it through our Web site, abramsreport.msnbc.com.  Click on “Sidebar” to hear from some of our favorite lawyers, some of our staff and of course, from me.

And you can always sign up to get our daily newsletter for a heads up on the stories we‘re covering each night.

Now, another real treat that you can get on our Web site.  Halloween is this Sunday night and don‘t worry, if you don‘t have a costume yet.  If you‘re all out of ideas, you can head to our Web site, abramsreport.msnbc.com, where you can download this.  That‘s right.  (UNINTELLIGIBLE) I‘m sure that this will be the Halloween costume you want. 

If you want to make all your friends gag, you can get this for Halloween.  Just print out the mask on a color printer and follow the instructions to put it together.  I should have worn an orange tie today.  I have these great orange ties.  I don‘t know why I didn‘t.

Your e-mails, abramsreport@msnbc.com.  We go through them at the end of the show.  Thanks for watching.  “HARDBALL” with Chris Matthews.  Chris has more on the new Osama bin Laden tape, what it might mean for the election.

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

END   

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