updated 11/5/2004 10:21:12 AM ET 2004-11-05T15:21:12

Guest: Gloria Allred, Dean Johnson, Daniel Horowitz, Russ Robinson, Tom Goldstein, Ann Elizabeth Reesman

DAN ABRAMS, HOST:  Coming up—I‘m in front of the courthouse in the Scott Peterson case, where, at any moment, the jury could reach a verdict.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  As we wait, we‘ll review not just what the lawyers said, but how about the judge?  He had the final word before the jurors began deliberating yesterday.  And his words could have a big impact.

And after seeing this man on a popular reality dating show, a 35-year-old California woman immediately recognized him and called police.  She says he was the man who brutally raped her last year.  The police have now arrested him.

Plus, who would have thought a 40-year-old could be discriminated against because he or she is too old?  A group of 40-something Mississippi police officers have taken their case all the way to the U.S. Supreme Court.

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket—live in Redwood City, California, outside of the courthouse where jurors in Scott Peterson‘s murder trial are deliberating his fate as we speak.  They got the case yesterday, and so far have been deliberating for more than 10 hours.  They‘ve asked for certain exhibits in the case.  We don‘t know which ones.  So if anything happens in the next hour, I am right here to bring it to you immediately.

But, the last words the jury heard in that courtroom yesterday came not from the lawyers, but from the judge.  He told the jurors they have two duties—to determine what facts were proved during the trial and then to apply the law to those facts.  The judge told jurors how to examine circumstantial evidence, the credibility of witnesses, dog tracking evidence, expert witnesses, the definition of the charges and reasonable doubt, and the relevance and weight of motive and attempted flight.

Now, when he instructed them on the law, he gave them two options for conviction.  First-degree murder, a willful, deliberate, premeditated killing with express malice aforethought or second-degree murder, which will mean the death penalty is not even an option, an intentional killing, but the evidence is insufficient to prove premeditation and deliberation.

So how are all these words going to play out in the deliberation room and who benefits from a longer deliberation, shorter deliberation?  Joining me, three people very familiar with the evidence in this case, Amber Frey‘s attorney, Gloria Allred, former San Mateo County prosecutor Dean Johnson, and criminal defense attorney Daniel Horowitz.

All right, Gloria, let me start with you.  As an attorney, if you were the prosecution in this case, are you getting nervous as each day passes, or are you happy that the deliberation process goes longer?

GLORIA ALLRED, AMBER FREY‘S ATTORNEY:  Well, of course, I can imagine that every prosecutor would like a quick conviction if that‘s at all possible, but I think they understand that there may very well be some people on this jury who need to have an opportunity to really think about all the evidence, all of the exhibits that have been entered into evidence in this case, and have a chance to really discuss it to make sure.  Because after all, if they do decide to convict, first-degree murder and special circumstances, then they know there‘s a possibility of the death penalty.  And I‘m sure that they‘re all responsible and want to be sure of their verdict, at least have an abiding conviction if they‘re right if they vote to convict.

ABRAMS:  Yes.  Yes.  All right.  Look, Dean, bottom line is if this jury comes back, let‘s say, tomorrow and we hear, there‘s a verdict, there‘s a verdict.  Bottom line is I think that‘s going to be depressing to the defense and encouraging to the prosecutors.  Do you agree with me?

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Well, normally I would disagree, but I think in this case you‘re absolutely right.  Rick Distaso left these people with a very important question—you know, how can you explain where those bodies popped up so close to where Scott Peterson was fishing?  That one fact alone is the fact that I think this jury is going to focus on.  It‘s the one fact that cannot be incorporated into any defense theory and may very well lead this jury to a quick conviction.

ABRAMS:  Yes.  And Daniel, I mean, Dean is right.  In most cases, when you hear that there‘s a very quick verdict, very often it‘s encouraging to defense attorneys because they say, look, that means that they just didn‘t think there was enough evidence and they said, we‘ve got reasonable doubt, let‘s go out there and just tell them.  But even though you have had questions about the quality of the prosecution‘s evidence in this case, if you were the defense attorney and late today, in the next hour or so or tomorrow, you hear that there is a verdict.  As the defense attorney, does that mean bad news, do you think, for you?

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  Yes, Dan, it would—a quick verdict is going to be disaster.  And in addition, the prosecution got good news today.  We just found out and confirmed that juror number five, the doctor-lawyer...

ABRAMS:  Oh.

HOROWITZ:  ... is the foreperson of the jury.  To me, Dan, that is the best-case scenario for the prosecution.

ABRAMS:  Well, that‘s—that was the next issue we were going to bring up.  You know, apparently there were a group of reporters in the hallway with the judge, and someone  -- he said, you know, who‘s the foreperson, and he said something to the effect of guess, and they all guessed, and they said juror number five, and he said, I‘m not going to deny that.  Daniel, is that what you‘re talking about?

HOROWITZ:  Yes, I was involved with that, Dan, and there was a rumor -

·         which I‘m not going to source—that it was juror number five.  So the reporters who were standing around looking for some clue as to what was going on went into the courtroom, and they saw the judge there, and Judge Delucchi never lies to the press, Dan.  He may not always give information, but if he says something that he knows is going to go out on the airwaves, he makes sure it‘s accurate.  So they said to him, is it juror number five, and with a little twinkle in his eye, he said, I won‘t deny it.

ALLRED:  And Dan, how interesting is that?  Because we remember that the prior juror number five basically was booted off the jury, and this now juror number five is the replacement for him.

ABRAMS:  Right.

ALLRED:  And the one that was booted off appeared to think that Scott Peterson was not guilty.  But now we have him replaced with somebody who is both a doctor and a lawyer...

(CROSSTALK)

ALLRED:  ... somebody I think who‘s been taking careful notes.

ABRAMS:  And a guy—that‘s what I was going to say.  And Gloria, someone who everyone says has been taken copious notes.  I mean, to the point where he‘s literally writing and writing and writing, it‘s almost transcribing what‘s been happening inside that courtroom.  So Dean, if that‘s the case, does it really make that much of a difference who the foreperson is?

JOHNSON:  It can make a huge difference who the foreperson is.  But I think it‘s very clear that juror number five, being a doctor and a lawyer in a case where there are complicated legal principles, but also complex medical testimony, he‘s going to be the jury leader no matter who the foreperson is...

ABRAMS:  All right.

JOHNSON:  ... and he‘s going to have a huge influence on that jury.  I personally don‘t necessarily think he‘s a pro-prosecution juror, though I did notice that when the prosecutors were arguing in their closing arguments, his furious note taking increased by a factor of 10.  He was almost burning up the page with notes.  That‘s a good sign for the prosecutors.

ABRAMS:  All right, so, look, again, we are waiting for this verdict, and we‘re going to bring it to you as soon as it happens.  Let me just play you, though, one of the final words that Judge Delucchi, the judge, said to these jurors about the issue of motive.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Motive is not an element of the crime charged and need not be shown.  However, you may consider motive or lack of motive as a circumstance in this case.

(END VIDEO CLIP)

ABRAMS:  All right, so that‘s—you know, that‘s sort of the nice way of saying, you know, you can consider motive, it‘s not an element, but as a practical matter, Gloria, motive matters.  Jurors care about motive.

ALLRED:  I agree with you, Dan.  And I think it‘s important, especially in a case like this, where a lot of people might say, I mean, how can a husband kill his pregnant wife?  You know, terminating a life of his wife and his son-to-be, and so I think...

ABRAMS:  Yes.

ALLRED:  ... they would have a question in their mind.  They would want an answer to that question.  That‘s why the prosecution, I think, gave them what they believe is the motive in the case, that Scott Peterson wanted to have freedom, wanted to have a different life away from Laci, away from the responsibility of a baby.

ABRAMS:  All right, here‘s what Rick Distaso, the prosecutor, said about that.  He said he didn‘t want that dull married life, got to stay home with the kids.  He wanted to live the rich, successful bachelor life.  He didn‘t want to be tied to a wife for the rest of his life.  He didn‘t want to be tied to a child for the rest of his life.  So he killed her.  It‘s as simple as that.

And, you know, Daniel Horowitz, then Mark Geragos came and he said, well, they‘re suggesting Amber Frey is the motive.  They‘re suggesting finances are the motive, but that was really a misstatement of what the prosecution had laid out as a motive, wasn‘t it?

HOROWITZ:  Yes.  I mean what Geragos did was he set up a straw man.  He said, this is what the prosecution says and they didn‘t prove it.  But, you know, Dan, on the other hand, it‘s not clear what the motive really is for this crime and it can‘t be a grab bag.  One juror thinks it‘s this.  One is that.  I think the doctor-lawyer will focus the jury more on the facts, and the real issue in this case is, is there enough hard, solid evidence of planning of this crime to say he not only did it, but he planned it, too.  Then you get a first-degree murder.

ABRAMS:  Yes.

HOROWITZ:  The motive is just sort of the icing on the cake.

ABRAMS:  Yes.

ALLRED:  ... I think it could be important, Dan, and I‘ll tell you why, because when they have—if they decide that he had a motive, Scott Peterson, if they decide that he had the opportunity, it could help them to answer the question posed by the prosecution, which is the identity of the perpetrator of this double murder, and they could decide...

ABRAMS:  Yes.

ALLRED:  ... motive with opportunity and the identity leads to Scott Peterson.

UNIDENTIFIED MALE:  I think that‘s...

(CROSSTALK)

ABRAMS:  All right.  Let me take...

(CROSSTALK)

ABRAMS:  Let me take a quick break here.

(CROSSTALK)

ABRAMS:  Hang on.  Let me take a quick break here.  When we come back

·         the judge—a lot of you write in and say, what exactly does reasonable doubt mean?  Well, the judge laid it out exactly on camera.  We‘ve got it, and we‘ll play it for you.  Remember, we‘re waiting for a verdict at any moment in the Scott Peterson case.  We‘ll bring it to you if and when it happens.

And police in Ventura, California had been searching for a year for this man.  You‘re not going to believe how they tracked him down.  He appeared on a reality dating show.  The alleged victim says she spotted him and called police immediately.  He‘s under arrest, and we talk to an officer in the case.

Plus, 40-something year old police officers in Jackson, Mississippi saying they‘re being discriminated against because of their age and they‘ve taken their case all the way to the U.S. Supreme Court, arguing that younger cops are getting bigger raises.  We talk with an attorney who argued the case in front of the justices.

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:  Judge—all right, all right—OK.  Coming up in a minute, more on the Scott Peterson case.  We‘re waiting for a verdict.  Back in a moment.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

VOICE OF HON. ALFRED DELUCCHI, SCOTT PETERSON TRIAL JUDGE:  It is not a near possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt.  It is that state of the case, which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.

(END VIDEO CLIP)

ABRAMS:  That was the judge yesterday, right before he sent the jurors off to begin deliberating.  I am sitting in front of the courthouse in Redwood City, where at any moment we could have a verdict in the Scott Peterson case.  We‘ll certainly bring it to you as soon as it happens, if and when we get one.

All right, Dean Johnson, you just heard that description from the judge of reasonable doubt.  And your attorney is always saying, remember, the prosecution has to prove its case beyond a reasonable doubt.  But I have to tell you I don‘t know that I entirely understood what the judge was talking about in his definition there.  It is the state of the case, which after the entire comparison and consideration of all of the evidence—you know he goes on that they cannot say that they feel an abiding conviction of the truth of the charge.  That‘s not particularly helpful to me in defining—it‘s not the judge‘s fault.  But, you know, do you think that that really ends up mattering a whole lot?

JOHNSON:  Well, I don‘t think it‘s really all that—that instruction is not really all that helpful.  If you read that, then reasonable doubt is very much in the eye of the beholder.  I think the other instruction...

ABRAMS:  Right.

JOHNSON:  ... that you have to read in conjunction with it is the one that says if there are two reasonable interpretations of the evidence, one consistent with guilt, one consistent with innocence, you must adopt that which is consistent with innocence.  But the implication of that is after you look at the whole of the evidence, as Delucchi said, if there is no reasonable interpretation consistent with innocence, then the other interpretation, that which is consistent with guilt, must be the one that‘s true, because there‘s simply no other reasonable explanation for all of that evidence, and that‘s what we have here.

ABRAMS:  Yes, and Daniel Horowitz, you know, a lot of defense attorneys rely so much on reasonable doubt, and they say, you know, there is reasonable doubt, there‘s got to be reasonable doubt, and here‘s what the judge went on to say.

A defendant in a criminal action is assumed to be innocent until the contrary to be proved.  And in case of a reasonable doubt whether his guilt is satisfactorily shown he is entitled to a verdict of not guilty.

I mean look, that‘s important.  I mean it‘s important that the prosecution has essentially the burden of proof in cases like this, but these definitions of reasonable doubt, I mean, I hear them and they vary from state to state and from courtroom to courtroom, and they‘re usually not particularly helpful in defining exactly what it is that has to be proven in the case.

HOROWITZ:  I know Dan, you‘re entirely correct.  And, you know, I‘ve talked to Judge Delucchi about this issue on other cases.  He has never in his entire career answered a jury question, and they often ask, what do you mean by this instruction?  He‘s never answered it other than by reading the same instruction to them again, because that is the easiest way for a judge to get reversed.  But what Geragos did at the end of his closing argument was say look, there is a rope, a twine around baby Conner‘s neck, only three-quarters of an inch space, how could it get around his neck unless he was born alive or somehow separate from Laci when that went around his neck?  A human had to tie it.  And that is a good definition of reasonable doubt, Dan, by using the evidence.

ABRAMS:  Yes.  It is, except that I was expecting them to call an expert to say that, but apparently they couldn‘t get one to come in and say, well, that demonstrates to me that the baby was born alive, because I remember, you know, when I broke the story about the autopsy report, it sure seemed like a big deal about the way that that twine was wrapped around the baby‘s neck.  But I have to tell you that I‘ve been stunned that the defense never called any expert to come in and say, that says to me that this baby was born alive.  Gloria, why not?

ALLRED:  Yes, well, they probably didn‘t call the expert because they couldn‘t find one.  Because if they could find one, then why not produce them?  It‘s to their advantage.  I also think when you‘re talking about reasonable doubt I think it‘s important that the judge help them to understand through the jury instructions that it doesn‘t mean beyond any doubt whatsoever.  You know, they can have doubt, but it has to be the burden of the prosecution is to prove it beyond a reasonable doubt.  And I think Mr. Distaso in his final argument was also helpful to the jury in telling them that it‘s not reasonable...

ABRAMS:  Yes.

ALLRED:  ... that you can‘t have reasonable doubt on unreasonable evidence.  So I hope that they can absorb that.  It is a hard standard, but nobody‘s been able to come up with anything better.

ABRAMS:  Before we go to break, this is what Mark Geragos had said he was going to prove when he took the case on.

(BEGIN VIDEO CLIP)

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

(END VIDEO CLIP)

ABRAMS:  One thing we know for certain is that the defense did not present a theory, an answer to that question.  Gloria, Dean, Daniel Horowitz, stay with us.

When we come back—more on the Peterson case, more about what the jury has been saying.  And remember, we are sitting here.  A verdict could come down at any time.  We‘ll bring it to you live if and when it happens.

And this man got picked on a reality dating show, but it was more lineup than setup.  He was spotted by a 35-year-old woman who says he brutally raped her.  The police have arrested him.  An officer in the case joins us, coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Is that correct Mr. Peterson?  You‘re pleading not guilty to the two charges of murder plus the special—denying the special allegations.

(CROSSTALK)

SCOTT PETERSON, ON TRIAL FOR MURDER:  That‘s correct, Your Honor, I am innocent.

(END VIDEO CLIP)

ABRAMS:  That was Scott Peterson in a different court in front of a different judge.  I‘m sitting in front of the courthouse where we are waiting for a verdict in the Scott Peterson case.  And again, if it happens, we will bring it to you immediately.

All right, we‘re talking about the judge‘s final words to these jurors.  He was the last person to get to speak to them before they began deliberating yesterday.  Been a lot of talk about Scott Peterson fleeing, maybe trying to go to Mexico.  Here‘s what the judge had to say about attempted flight.

(BEGIN VIDEO CLIP)

DELUCCHI:  The attempted flight of a person after the commission of a crime or after he is accused of a crime is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all the other true facts in deciding whether a defendant is guilty or not guilty.

(END VIDEO CLIP)

ABRAMS:  All right, so here‘s what Scott Peterson had in his car with him at the time that he was arrested.  He had his brother‘s driver‘s license, about $15,000 in cash, some Mexican currency, a letter from Amber Frey, directions to Amber‘s work place, pictures of Scott and Laci, seven credit cards, Viagra and sleeping pills, although the Viagra didn‘t come in evidence, four cell phones, a hand shovel and a double-edged dagger, foul weather jacket, camping gear, a hammock, binoculars, mask and snorkel, fishing rod and reel, and clothing.

Dean, do you think that the prosecution has overstated the issue of flight?  I mean that‘s one of those ones where the defense does have arguments, explanations.  Would you be concerned as the prosecutor that these jurors sort of not let this case hinge on that issue?

JOHNSON:  Well, I wouldn‘t and the prosecution didn‘t.  They hardly mentioned the issue of flight at all during their closing statements, and it‘s there for the jury to decide.  It‘s not a flight instruction; it‘s an attempted flight instruction.  It‘s more like the jury can look at whether or not Scott planned to flee at some point and whether this evidence indicates it does.  Mexican currency, camping equipment, I think they‘re going to conclude that he did attempt to flee.  And when you connect that with the other evidence of consciousness of guilt, all of his lies, his misrepresentations, I think this jury is going to conclude that there was some consciousness of guilt there.

ABRAMS:  Yes, all right, this is what—this is the day Scott Peterson was arrested.  The morning he was arrested they tape-recorded a conversation between Scott and his brother.  Some have suggested that Scott may have known the call was being recorded.  But regardless, here‘s what he said.

(BEGIN AUDIOTAPE)

J. PETERSON:  Hey.

S. PETERSON:  Hey Joe.

J. PETERSON:  Brother, what‘s up?

S. PETERSON:  Oh I can‘t lose these private investigators.

J. PETERSON:  Oh God.

S. PETERSON:  I lost them and they got—another set got me.

J. PETERSON:  Oh brother.

S. PETERSON:  I don‘t think I should come play golf.

(END AUDIOTAPE)

ABRAMS:  Daniel Horowitz, the defense says this really helps their case.

HOROWITZ:  Dan, I don‘t buy it.  I‘m in the minority here.  I think private investigator is a family code word for police.  I think the Peterson family was helping Scott get ready to run to the border, and I say this—why not have them testify to just what I said with a spin, an explanation.  We weren‘t helping him to flee because he was guilty, but we were helping him flee from police misconduct, from an investigation that unfairly was targeting our son for the death penalty, and then say, look, look what has happened in this courtroom.  Our son might die and we know he‘s innocent.  I think that‘s more truthful and would have gone over better than what actually was presented.

(CROSSTALK)

ABRAMS:  But...

(CROSSTALK)

ABRAMS:  ... Gloria, as you well know the prosecutors in this case were attacked by Mark Geragos for, in essence, suggesting that the parents of Scott Peterson were lying.

ALLRED:  Well, I mean the jury is going to draw its own conclusion as to whether the story basically that was given by Jackie Peterson, Scott Peterson‘s mother, about, you know, why it is that she ended up giving him cash somehow out of his own account to buy or basically to sell a car to his brother, whether they accept that is true or not.  I think what‘s also interesting about where Scott Peterson was when he was arrested was that he was down in Southern California in the San Diego area.

He knew that the bodies had been discovered some days before and that they were looking to see whether, in fact, those bodies could be identified as the bodies of Laci and Conner.  Did he drive back up to be there in case it was Laci and Conner?  Was he calling to ask?  We didn‘t hear any of that.  I think if I were a juror...

ABRAMS:  Yes.

ALLRED:  ... I would be very concerned.  Maybe he was afraid to go there if, in fact, he was guilty of those crimes.

ABRAMS:  All right.  Gloria, Dean, and Daniel Horowitz, sitting only yards away from me here at the courthouse.  I‘m going to come over and say hello as soon as the show is over.  Thanks.  We‘re going to have an update on what‘s going on with the jurors at the end of the hour, because, again, we are sitting here waiting for a verdict.

Coming up, a man who appeared on a reality dating show found more than his match.  Police arrested him for raping a woman last year.  She recognized him while watching him on TV.  An investigator in the case joins me.  This is a bizarre story.

And a 40-year-old discriminated against at work because he‘s too old?  That‘s what a group of police officers in Mississippi are claiming.  And they‘ve taken their case all the way to the U.S. Supreme Court.  Their attorney who argued the case joins us.

(COMMERCIAL BREAK)

ABRAMS:  Coming up—a California woman raped more than a year ago, but the man who she says raped her was at large until she spotted him on a TV reality dating show.  Now he‘s behind bars, but first the headlines.

(NEWS BREAK)

ABRAMS:  We‘re back in front of the Redwood City courthouse where a verdict could come at any moment in the Scott Peterson case.  We are continuing to monitor that.

But for now, a California rape victim didn‘t think her attacker would ever be caught, and she certainly didn‘t think that if he was, it would be because she saw him on TV trying to get a date.  A Santa Barbara woman was attacked more than a year ago.  Police issued a warrant for one suspect‘s arrest, but they got a major break in the case last month when the victim literally says she saw the man on a popular dating show.  Authorities were able to track him down.

NBC‘s Michael Okwu has the story.

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE:  I‘ve got to fan myself a little here.

UNIDENTIFIED FEMALE:  OK.

MICHAEL OKWU, NBC NEWS CORRESPONDENT (voice-over):  When a 35-year-old woman saw this man last week on the popular dating show “Blind Date,” she couldn‘t believe her eyes.

UNIDENTIFIED MALE:  You‘re dangerous (UNINTELLIGIBLE).

(LAUGHTER)

OKWU:  She claims that same man, now appearing on national television without a care in the world, raped her a year ago.  That videotape led to the arrest of 31-year-old Ulrick White, a handyman and private security guard from Santa Barbara.  The alleged victim claims that White offered her a ride home while she was waiting for a cab outside this bar.  Instead of taking her home, she says, White raped her.  Police say a warrant had been out for his arrest, but they couldn‘t find him because he was a transient.

SGT. SEAN CONROY, VENTURA POLICE DEPT.:  When she saw him on TV, it gave the investigation a direction to go as far as locating him.

OKWU:  Prosecutors say the woman called 911 during the alleged attack and that the incident was recorded on tape.

DOUGLAS RIDLEY, ASST. DISTRICT ATTORNEY:  The defendant is actually on tape refusing the victim‘s requests for help and to stop and to let her go.

OKWU (on camera):  Solid evidence they say that can finally be used after a year of searching, thanks to a dating show that unwittingly tipped them off.

Michael Okwu, NBC News, Los Angeles.

(END VIDEOTAPE)

ABRAMS:  Wow.  Ulrick White is being held on $500,000 bail by Ventura County police.  He‘s had some trouble with the law in the past.  Last year he was arrested in Santa Barbara for allegedly breaking into another woman‘s apartment.

Joining me now is Detective Russ Robinson with the Ventura Police Department, who is investigating this case.  Detective thanks a lot for taking the time to come on the program.  We appreciate it.  All right, so you had wanted this man, meaning you knew who he was and had said were looking for this guy and had been unable to find him until she saw him on the dating show? 

DET. RUSS ROBINSON, VENTURA COUNTY POLICE DEPT.:  That‘s correct.  He was fairly transient.  We were aware that he had a number of addresses in southern Santa Barbara County, but we ran out of leads shortly after that and were not able to determine where he was located.

ABRAMS:  Have you gotten any sense from talking to him as to why he would think that he wouldn‘t get caught after going on national television?

ROBINSON:  Well, I‘m not at liberty to go into the details of the investigation as far as it concerns my interview with him, but certainly in many cases suspects of sexual assaults believe that they somehow have developed some kind of relationship with the victim, and I think that he didn‘t believe that law enforcement was after him.

ABRAMS:  Wow.  I mean when you look at—if we can show the video again from the program itself, I mean, here he is dancing around, you know, acting as if he doesn‘t have a care in the world, trying to get a date on this program.  Is the alleged—is the victim—I say alleged victim only because I‘m used to doing these date rape cases, but this is not of those cases.  This is the victim in this case.  There‘s no question that she was the victim of a rape, correct?

ROBINSON:  Absolutely not.  No, this is very true...

ABRAMS:  All right...

ROBINSON:  In fact, she‘s a very strong woman, and I think the—you know, a great effort on her part to stay aware of what was happening and dial 911 on her cell phone essentially seals this case.

ABRAMS:  All right.  Well then I apologize to her and to you for using the word alleged in that context.  How‘s she doing?  Was she relieved in some way, angry?  What was her emotional state when she saw and she saw this tape and then called you?

ROBINSON:  I think you hit the nail on the head.  Almost in every case, all of those emotions come out in a victim.  She was initially shocked that he—to find him on a television show, you know, and immediately was elated that we might have some additional information to follow after and apprehend him.  And certainly it drags those emotions back from the event to her, and so she‘s kind of having to relive it at this point.  So it‘s a traumatic event for her, but she‘s glad that he‘s behind bars.

ABRAMS:  And let‘s be clear.  She did not know him before this evening, correct?

ROBINSON:  That‘s correct.  She met him that night in the bar.

ABRAMS:  Wow.  All right, well, Detective, sounds like it‘s good news that he was caught and good news that he was so foolish, and hope she‘s doing all right.  Thanks a lot for coming on the program.

ROBINSON:  Yes.  Thank you.  You‘re welcome.  Thank you.

ABRAMS:  Coming up—from Redwood City, we are continuing to wait for a verdict in the Scott Peterson trial.

And who would have thought you‘re over the hill at age 40?  The Supreme Court hears a case from a group of police officers who say they were discriminated against at that ripe old age.  We talk with their lawyer.

And I said I hoped President Bush and the Democrats in the Senate can compromise a bit when it comes to appointing judges, many of you just don‘t trust compromise.  I read your e-mails.  Send them to abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  We‘ll be back...

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  Who would have thought that a 40-year-old might be discriminated against because of his age?  And then imagine having to argue in front of the U.S. Supreme Court about this where the youngest justice is 57, the oldest is 84, and the average age is 70.  Yesterday, lawyers for the City of Jackson, Mississippi, told the justices Jackson‘s police department should not have to face lawsuits from officers who say they‘re being discriminated against because they‘re over 40.  Thirty police officers in their 40‘s and 50‘s filed the suit against Jackson over a pay system they say gives younger officers bigger raises.

Jackson attorney Glen Nager, who argued the case, said that unlike gender and race, there are often legitimate reasons for treating older people differently.

Quote—“It‘s painful to say especially to a court that is older than I am that our mental and physical capacities are not constant over a lifetime.

Justice Ruth Bader Ginsburg, age 71, immediately pointed out that Italian opera composer Giuseppe Verdi composed his greatest work, the opera “Falstaff” when he was in his late 70‘s.  At issue here, whether the officers should have to show that the city intended to discriminate against them, or whether it‘s enough to just show that older people were affected more.  The police officers saying that the 1967 law that prevents employers from discriminating based on age should be interpreted the same way as the 1964 law that protects from discrimination based on age—sorry, based on race or gender.

The Supreme Court‘s decision could affect half the U.S. workforce, around 70 million workers over 40.  “My Take”—if the police officers win, it would mean that every employer has to examine every policy they have to see if it affects more experienced or older people more.  That‘s a huge burden.  Look, if they‘re intentionally discriminating, they should be held responsible.  But the people suing should have to show more than just numbers from the spreadsheets.  They are sometimes legitimate reasons when older people might not be capable of doing certain jobs.

Joining me now Tom Goldstein, an attorney for the Jackson police officers who filed the suit and Ann Elizabeth Reesman, general council for the Equal Employment Advisory Council, who‘s helping to argue the suit with the City of Jackson.  All right, Mr. Goldstein, tell me why you think I‘m wrong on this one.

TOM GOLDSTEIN, ATTY FOR JACKSON MS POLICE OFFICERS:  Well, I think—you know Dan, I know your dad, Floyd Abrams, who‘s the leading First Amendment lawyer in the country, he‘s at least in his late 60‘s.  I think he‘s incredible.  I don‘t think he‘s lost a step.  Maybe you think I‘m wrong.  You can talk to him about that...

ABRAMS:  But you know that‘s not the issue, Tom.  But Tom...

(CROSSTALK)

ABRAMS:  ... that‘s a straw man.

GOLDSTEIN:  No...

ABRAMS:  That‘s not the issue.  And the case...

(CROSSTALK)

ABRAMS:  The issue in this case is should age be treated the same way as race and gender, so therefore, every employer has to go through and count, how is this going to affect—is this going to affect older people who are more experienced?  Are we giving them the same pay raises as we‘re giving the younger people?  I think that‘s a huge burden to put on employers.

GOLDSTEIN:  Well, experience shows you‘re not right.  What we say is, look, if you want to treat your older workers differently and less fairly like the city did here, you‘ve got to have a reason.  That‘s all we say.  You‘ve got to have a reason.  You‘ve got to have a business justification that says here‘s why I did it.  If it‘s just an accident, then that‘s not going to be good enough under the law.  If you don‘t have a good reason for doing it, you‘ve got to treat everybody the same.

ABRAMS:  All right.  And Ms. Reesman, what do you make of that?

ANN ELIZABETH REESMAN, ATTY EQUAL EMPLOYMENT ADVISORY COUNCIL:  Dan, I

think it‘s important—you‘re absolutely right—it‘s important to remember that this case is not about anyone being discriminated against because of their age.  Nobody‘s claiming that here.  The question here is, as you said, whether an employer should be vulnerable to lawsuits merely because they used some other, some neutral factor that is not age-based to make a decision.

ABRAMS:  And so doesn‘t this, as a practical matter, mean that if they win this, if Mr. Goldstein wins this case, that as a practical matter, every employer will have to go back and evaluate, OK, if I have more experienced people, and since they‘re getting paid more, let‘s say, you know, I don‘t want to continue to pay them that much more.  They‘re not going to be allowed to sort of do it strictly based on a business model.  They‘re going to have to evaluate it and say (UNINTELLIGIBLE) I got to be careful not to give the older people any less than the younger people?

REESMAN:  You‘re absolutely right, Dan, and that is the problem with this case.  In fact, it‘s even more problematic than that if you consider, not only are we talking about half the American workforce, but the fact that we‘re talking about people over 40.  In this country, just this year, more than 12,000 people a day turned 40.  And so not only would an employer have to go back every time, but the numbers would shift nearly on a daily basis, as your workforce grows older and as different people age.

ABRAMS:  Mr. Goldstein, I mean, isn‘t that true?

GOLDSTEIN:  Nope.  The—well, do people age?  Yes, that‘s pretty true, but that‘s about the true part of it.  You just got to listen.  The rule that most of the country has applied for a really long time is you have to have some reason.  If you want to give younger workers a raise because you‘re having trouble keeping your younger workforce, or your older workers are too expensive and so you‘re going to lay off your more expensive workforce, that‘s fine, the statute doesn‘t have a problem with that.

What we‘re saying is that look, if you have a test for getting a job and the test is computerized and older workers fail it because they‘re not as familiar with computers...

ABRAMS:  Right.

GOLDSTEIN:  ... and dealing well with computers isn‘t important to the job, well, that‘s an accidental way that you‘re hurting older workers.  That‘s all that we‘re saying.

ABRAMS:  But see, my problem is that you‘re forcing employers to always come back with a justification.  And this, to me, is the government getting involved where they don‘t need to be involved in cases like this.

GOLDSTEIN:  That‘s the entire reason we have the civil rights laws is to make sure that people who...

ABRAMS:  But they‘re not—you‘re not going to say, do you really believe that race and gender are the same as age, meaning that when an employer enacts a system that, let‘s say, suddenly there are no blacks who are in certain positions, and then we say, look, if you‘ve got a system that says no blacks are in certain positions, that seems kind of suspicious, because there‘s really no good reason that you‘d have that.  On the other hand, as even you point out, generally there can be good reasons, legitimate reasons why older people might not be getting certain positions, and now you‘re forcing the employers to say, all right, we‘ll give you an explanation every time.

GOLDSTEIN:  Look, Congress has said the point of the civil rights laws is not just to fiend out when we‘re discriminating on purpose against people who are black or women or the older workforce.  What we want is fair opportunities.  Congress knew that there were stereotypes about people that just aren‘t fair, aren‘t true, and that it had to step in.

ABRAMS:  And Mr. Goldstein, what—the age cutoff was not obviously established by you.  That was by Congress, correct...

(CROSSTALK)

ABRAMS:  ... when they said anyone who‘s 40 or older?

GOLDSTEIN:  That‘s exactly right.  That‘s when Congress said, look, we‘ve got a problem where employers think, oh, I‘ve got to have this high-tech, young workforce.  They didn‘t realize that hey, if I want a cop responding to my door, I‘d rather have somebody who has real experience.

ABRAMS:  Yes.  All right, Tom Goldstein and Ann Elizabeth Reesman, this is a fascinating case and I‘m going to stay on top of it, and maybe we‘ll have you both back.  I appreciate it.

REESMAN:  Thank you.

GOLDSTEIN:  Thanks.

ABRAMS:  Coming up—from in front of the courthouse in Redwood City, California, a late update on where things stand with the jurors in the Scott Peterson case.  They are deliberating.  If there‘s a verdict, we will bring it to you.  Stay with us.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, we‘ve got some news to report to you in connection with the Scott Peterson jurors who are deliberating the case.  Coming up in a moment.

(COMMERCIAL BREAK)

ABRAMS:  We are here in front of the courthouse in Redwood City at the Scott Peterson trial and we‘ve got some news to report to you.  MSNBC‘s Jennifer London has been inside the courthouse.  Jennifer, what‘s going on?

JENNIFER LONDON, MSNBC CORRESPONDENT:  Well Dan we are just hearing from the court that the jury is planning to wrap up for the day.  The court telling us that the jury plans to begin deliberations around 8:30 in the morning Pacific Time, as we saw today.  And they plan to wrap up at about 4:00 Pacific Time, which it‘s just about 4:00.  We do understand that today, well it was their first full day of deliberations.  We understand that they had lunch brought in for them at noon.

Not clear, Dan, if this was a working lunch, but the court telling us that they will bring lunch in every day at noon for the jury.  So what does this mean?  Well it doesn‘t look like we‘re going to have a verdict today Dan.  The jury will be back again tomorrow at 8:30.  Now remember, this jury is sequestered.  So if there is no verdict tomorrow on Friday, that means they will be locked up in some undisclosed hotel over the weekend.  The court is telling us they will not allow any family visits over the weekend.

They will only allow the jury members to watch sports on television.  They can watch some football if they like.  They can watch movies from a preapproved list.  And they can only make outgoing phone calls.  And Dan, as you probably know, a lot of legal experts say that Fridays tend to be verdict days, especially if a jury is sequestered and looking at a long weekend locked up in a hotel.  So we will wait and see.

ABRAMS:  Yes, after a second night at a dumpola motel, it sometimes encourages jurors to come back with a verdict.  Jennifer London...

LONDON:  I would think so.

ABRAMS:  ... thanks a lot.

All right, I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night in my “Closing Argument” I said President Bush needs to avoid appointing ultra conservative judges and then Senate Democrats have to stop the procedural games they‘ve been playing to avoid voting on the president‘s nominees.  I said he has gotten a mandate to nominate conservative, but he shouldn‘t go too far and that a compromise on both sides would go a long way.  Some of you on the left, very angry at me.

From Portland, Oregon Nancy Cottrell Palzer.  “I will not be advising my state‘s representatives in the Senate to any so-called compromise on the conservative appointees to the federal bench or Supreme Court.  I have a right to a whole host of constitutional protections to important values that the Christian right seeks to abolish.  This so-called mandate wasn‘t sent by my great state or by me.”

Jeff Hardy, “You couldn‘t be more wrong.  We live in a republic and elect senators and congressmen to represent the people who elect them.  I will tell you one thing.  If my Democratic senator allows an ultra conservative judge onto the Supreme Court, he‘s getting tossed next time.”

Finally AnneElena Foster in Naples, Florida.  “A little compromise?  We‘ve got to be very careful who gets on the court and even as a Republican I find myself hoping that the Democrats don‘t feel so bruised by their much needed wake-up call that they capitulate to just any Bush nominee.”

Your e-mails abramsreport@msnbc.com.  We‘ll go through them.

Coming up next, “HARDBALL” with Chris Matthews.  Thanks for watching.  I‘ll be back here tomorrow.  Friday, very often verdict day, as Jennifer said, Scott Peterson trial.  I‘ll be here all day.

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

END   

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