updated 11/9/2004 10:09:05 AM ET 2004-11-09T15:09:05

Guest: Rikki Klieman, Dean Johnson, Daniel Horowitz, Howard Varinsky, Arlen Specter

DAN ABRAMS, HOST:  Coming up—I‘m live in Redwood City, California, where it looks like the jury in the Scott Peterson case could be having some trouble.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  The jurors started day four of deliberations with a couple of them literally rocking Peterson‘s boat after it was brought back for them to examine.  Then, about an hour later, they were brought back into court with the judge reminding them to keep an open mind and not be partisan.  What happened?

And it took jurors in the O.J. Simpson case less than four hours to reach a verdict, but the Menendez brothers‘ juries took between 19 and 25 days.  Yikes.  Could we be here until Christmas?

Plus, Republican Senator Arlen Specter infuriated some on the right when he suggested President Bush would have a battle on his hands if he nominates judges who would vote to overturn Roe v. Wade.  We talk with the man who‘s expected to be the next chairman of the Senate Judiciary Committee, Senator Arlen Specter.  The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket, a lot of action in the Scott Peterson trial behind me.  It is only day four of deliberations, and already the jury is offering some hints that could indicate that they are divided.  After the jurors sent out a note this morning, Judge Delucchi responded by giving additional instructions on how jurors should approach their task.

And I quote—“It is rarely helpful for a juror at the beginning of deliberations to express an emphatic opinion on the case or to announce a determination to stand for a certain verdict.  When one does that at the outset, a sense of pride may be aroused and one may hesitate to change a position even if show it‘s wrong.  Remember that you are not partisans or advocates in this matter.  You are impartial judges of the facts.”

Yikes.  This came only hours after jurors re-examined the boat prosecutors say Peterson used to dump Laci‘s body in the San Francisco Bay.  The defense has suggested the boat would have capsized if Peterson had done what prosecutors claimed.  Two jurors apparently rocked the boat a bit, literally, which led defense attorney Mark Geragos to ask for a mistrial or an opportunity to present other evidence, saying jurors shouldn‘t be testing or experimenting with the evidence.  The judge denied the defense request.

Now “My Take”, as I have said many times before, I think a hung jury is a likely outcome here.  It is clear to me that at least one juror does not believe that the body could have been thrown off the boat.  I guess the juror thinks it‘s more likely that one of a group of homeless people threw the body off a bridge to frame Scott Peterson.

Joining me now, Dean Johnson, former San Mateo County prosecutor, criminal defense attorney Daniel Horowitz, prosecution jury consultant Howard Varinsky, and in L.A., criminal defense attorney Rikki Klieman, and I continue to sit in front of this courthouse.  If we hear anything about a verdict, I‘ll bring it to you right away.

All right.  So Rikki, you know this says to me if this judge already has to be instructing these juries about oh be nice to each another, play nice, listen to one another, that there‘s already dissension in that jury.

RIKKI KLIEMAN, CRIMINAL DEFENSE ATTORNEY:   Well, there may be dissension in the jury, or someone may have said, look, I think he‘s not guilty or, on the other hand, Dan, someone may have said, look, I think he‘s guilty.  I just don‘t need to hear anything anymore.  All the speculation I have heard all day is about one juror who must be holding out for acquittal.  We don‘t know that.  It is just as simple to say he‘s holding out for a conviction and doesn‘t want to talk about it.

ABRAMS:  Yes, I guess that‘s possible, Dean.  I mean—and you made a similar point to me earlier, but, you know, it would surprise you, would it not, if there were 10 or 11 jurors at this point demanding an acquittal with one or two holdouts for a conviction?

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Yes, that would be a great surprise, but I think Rikki is correct, at this point, which is very early in these deliberations, we can‘t really draw any inference.  That first paragraph of the instruction, it is rarely useful for jurors to express an emphatic opinion I think is what‘s really up here.  We have a problem juror who‘s gone back there, pounded the table and said, I believe adamantly that this guy is guilty or not guilty, and is just now saying, talk to the hand, I don‘t want to listen to it anymore.  They‘re going to have to break that logjam so they can move forward.

ABRAMS:  All right.  I should just tell you the judge has called the lawyers in to chambers.  We don‘t know what it‘s about.  That‘s why we‘re sitting here, because we‘re going to bring it to you if and when anything significant happens.

Daniel Horowitz, it seems clear to me that this is related to the boat, right?  I mean they asked for this boat to be brought in.  Two of them go in and they rock around in it, and then an hour later, the judge is coming out and saying, hey, you people, play nice with one another.  That seems pretty clear that someone feels strongly about that boat.

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  Yes, Dan, and it‘s actually a weakness in the prosecution evidence, because there is the issue, could you throw the body off the boat without dumping it?  The man who sold the boat to Scott Peterson testified, me and my wife could stand on the side, pull a fish in, and it wouldn‘t tip, but we didn‘t get much other evidence on that point.  So I can see a juror saying, hey I‘m not convinced that that boat wouldn‘t tip and refusing to go forward.  And Dan, I‘ve been out here much of the last four and a half, five months, and I know Geragos and I know Pat Harris, and they are all smiles today, so I think they feel that it‘s going their way.

JOHNSON:  Dan, I got to disagree with you...

ABRAMS:  When you say going their way...

HOROWITZ:  I was just with them...

ABRAMS:  ... Daniel...

HOROWITZ:  I was just with them.

ABRAMS:  Hang on one sec.  Daniel, what does it mean going their way?

HOROWITZ:  Well, I think that this is a case where they didn‘t think that they could win it.  As—after the Amber Frey tapes were played, the jury shifted so radically...

ABRAMS:  Yes.

HOROWITZ:  ... against them, they were fighting an uphill battle.  It looks to me now that they‘re feeling like this jury could hang.  And unlike most cases, a hung jury in this case favors the defense on a retrial, Dan, because there‘s so much evidence already presented, there‘s nothing new for the prosecution...

ABRAMS:  No way...

HOROWITZ:  ... but the defense now knows their game and can hit them.

UNIDENTIFIED MALE:  Yes, I disagree...

ABRAMS:  Before I go to Howard Varinsky, Rikki, I couldn‘t disagree more with what Daniel just said.

KLIEMAN:  I disagree with...

ABRAMS:  I think it would be a huge advantage, I think, to the prosecutors, because I think everyone agrees that up until the point of Amber Frey‘s testimony, Mark Geragos decimated a lot of the prosecution witnesses on cross-examination, and the prosecutors were trying to avoid letting that happen again.

KLIEMAN:  Well, I think that the prosecution wins on a retrial, but ultimately, nobody wants to retry this case.  I think Mark Geragos would rather just go somewhere and hold up in a hole than retry this case.  I mean that...

ABRAMS:  He won‘t retry it...

KLIEMAN:  I would think he would not retry it...

(CROSSTALK)

UNIDENTIFIED MALE:  Dan...

ABRAMS:  Yes.

HOROWITZ:  Dan, he will not.  Cardoza will probably retry it.  But this is like a civil case, Dan.  It‘s not like a typical criminal case.  Geragos has depositions where Brocchini has perjured himself in this case, where the cops have said one thing...

ABRAMS:  Yes.

HOROWITZ:  ... and the next cop says another.  And because of that—and it‘s in transcript—it‘s frozen in time, every mistake the prosecution made...

ABRAMS:  All right...

HOROWITZ:  So it‘s not a typical case.

ABRAMS:  Howard Varinsky—hang on.  Howard Varinsky was a jury consultant who worked with the prosecution on this case.  He‘s been involved in a lot of very high-profile cases, very well known, very well respected.  Howard, you know, how often does it happen that you‘ve seen that the jurors initially come out and say, we‘re having trouble, and then they reach a verdict, because I‘ve seen it in a lot of cases.

HOWARD VARINSKY, PETERSON PROSECUTION JURY CONSULTANT:  Yes, very often.  You know, very often.  Then the judge gives them instruction, and really, what the instruction is, is to just you know, tell jurors, one juror or more, not to be stubborn, to listen to other people, to reason, and that‘s what it‘s about.  But it happens all the time.  It also happens all the time that they continue being deadlocked, so we don‘t know what‘s going on in there.

HOROWITZ:  But Howard, I‘ve known Judge Delucchi for 24 years, and I‘ve never seen him give this instruction so early on and with so little evidence before him that there was a problem.  It‘s almost like we had deliberations and that we‘ve come to court today, and all of a sudden there‘s this instruction, and I‘ve never seen him do it.  So I think there‘s something special happening.

KLIEMAN:  Dan, it‘s interesting...

ABRAMS:  Yes.  Dean...

(CROSSTALK)

ABRAMS:  Go ahead, Rikki.  Go ahead...

(CROSSTALK)

KLIEMAN:  What I wanted to ask really was of Dan Horowitz and also Dean Johnson.  You know, we‘re used to throughout the country hearing what we call a dynamite charge, or an Allen charge, which is given...

ABRAMS:  Right.

KLIEMAN:  ... when a jury is hopelessly deadlocked and you bat them over the head and you say, no 12 people could do any better than you, and we need you to reach a verdict, and usually they reach a verdict within a couple of hours.  But in California, and they are the lawyers who practice in California, there is no such charge.  So does this instruction this morning—I want to know from them—take on much more meaning...

ABRAMS:  All right...

KLIEMAN:  ... than it would for other cases?

ABRAMS:  Let Dean take this one.  Dean, take this one on.

JOHNSON:  No, the instruction that Judge Delucchi has given now is not a dynamite charge.  And in fact, we have a little bit more elaborate procedure here.  We have a mini dynamite charge, Judge Delucchi has said he‘s going to give an instruction under a case called People v. Moore the first time.  It‘s going to send them back, and then they‘re going to come back again, and then he‘s going to give them the dynamite charge, a stone instruction, and if they come back after that, then and only then would he declare them a hang.

But we‘re a long way from that.  The instruction that‘s given here is just basically a play nice and duty to deliberate instruction...

ABRAMS:  Yes.

JOHNSON:  ... saying go back and talk about it.  We‘re jumping to some huge conclusions.

ABRAMS:  All right.  Let me take a quick break here.  When we come back, I want to talk about this boat.  These juries, first thing they asked for this morning was bring the boat back, and a couple of jurors decided apparently to get on it and start rocking it.  Mark Geragos went crazy, demanded a mistrial in the case.  We‘ll talk about that.

And with the jury in its fourth day of deliberations, how does that stack up against other high-profile trials, like the O.J. Simpson case or others when it came to how long the juries deliberate?

And how do prosecutors believe Scott Peterson killed his wife?  Well, they waited until their closing argument to tell jurors that Laci was either smothered or strangled, but what evidence did they present to back that theory up?

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:  We continue to wait for any news coming out of the Scott Peterson jury.  Early this morning, seemed that they might be having some problems in there.  Bring you the latest in a moment.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SCOTT PETERSON, ON TRIAL FOR MURDER:  Only that she‘s missing but walking the dog through there like she would do.  I‘m most worried.  It‘s like a way to experience her right now for me.  A lot of times I can‘t make it very far.  I get part of the way—I certainly can‘t make it to the part of the park where currently there‘s a big poster of her up.

(END VIDEO CLIP)

ABRAMS:  Of course, that was around the same time he was talking some naughty talk with Amber Frey.  Scott Peterson there in a tape that was played in court.  The jury continues to deliberate his fate as we speak.  I am outside the courthouse waiting for anything to happen.  I‘ll bring it to you immediately.  We‘re waiting for some news out of that courthouse.

One of the things that happened first thing this morning was the jurors had asked for the boat that prosecutors say Scott Peterson used to dump Laci‘s body to the brought back so they could examine it.  Apparently, a couple of the jurors got in and rocked the boat a little bit.  Well, defense attorney Mark Geragos came in and immediately asked for a mistrial, meaning that the whole thing would be over, or he said instead he would like to be able to present his own experts, his own video that would show that somehow this boat would have capsized.  The judge said it‘s just not reliant enough.  It‘s not relevant to this case.

Rikki, how big a deal?  I heard some commentators today saying, oh, you know, once jurors start experimenting with evidence, that‘s a ripe issue for appeal.  The bottom line is every time jurors ask for items of evidence to be brought back in to the jury room, they often do things with it, et cetera and c‘est la vie.

KLIEMAN:  Well, they do, do things with it.  We know that jurors have

re-enacted homicide scenes.  Probably the most infamous one was Jean

Harris, who allegedly had murdered, and I guess was convicted of a lesser charge of killing Dr. Tarnower, that they reenacted over and over the homicide scene.  The difficulty you‘ve got here, though, Dan, is it‘s one thing to place yourself in relation to an object.

It‘s one thing even to handle an object.  But this is a boat where the prosecution contends Scott Peterson pushed Laci and her unborn child over the edge.  And the stability of the boat on dry land is very different than the stability of a boat in the water.

ABRAMS:  Yes, and that‘s true, but Dean Johnson, look, I understand why they probably shouldn‘t have done it, OK.  But the idea that Mark Geragos wanted a mistrial or to be able to actually open the case up again and present new evidence, I mean, that seems to me to be a no-brainer that the judge wasn‘t going to grant it.

JOHNSON:  Yes, that‘s pretty ridiculous.  I mean you can‘t do tests or experiments, but this is not an experiment.  These jurors wanted to see the boat.  They wanted to touch it.  They wanted to get into it.  You have no idea why they wanted to do that, but that‘s exactly what jurors are supposed to do.

That‘s why we have physical exhibits, so if they have a particular factual issue that can be resolved by the thing itself, they can go look at it.  There was nothing improper here, though.  Of course, you can bet it‘s going to be raised as an appellate issue, but I think it‘s bulletproof on that issue.

ABRAMS:  All right...

(CROSSTALK)

ABRAMS:  ... here‘s what the prosecution boat expert, David Weber, had testified to back in July—said when a 142.5 pounds of weight hung on one side of the boat, the lower portion of the boat was about one and one-third inches under water.  The defense says under the State‘s theory there was close to 400 pounds in the boat, they say, which would have caused it to flip.

I mean, you know, Daniel Horowitz, the problem with this—and, you know, we have a defense investigator who wasn‘t working on the case who also tried a reenactment—if we can put that up when we get a chance—of how the boat necessarily would have tipped and it wouldn‘t have worked.  I mean, how—I‘m sorry I laugh—this is not funny—it‘s serious stuff, but this reenactment to me was so sort of silly and ridiculous.  But anyway, how important is this issue for the defense?

HOROWITZ:  Well, Dan, first of all, I think you‘re right.  It is silly in a way to do a reenactment.  The whole case could turn on a reenactment that never can really repeat the conditions that existed that day out on the ocean.  But what‘s interesting, and this is really unique in jurisprudence as far as I know, we‘re in the jury room.  Even though it‘s a boat and it‘s outside in the parking lot, we‘re peering into what the jury is doing, and we never get to do that.  So I think Geragos had to object to something going on in the jury room before our eyes, a very unusual situation, just to preserve his record on appeal, Dan.

ABRAMS:  No, I don‘t criticize him for making the motion.  I just think that it was a guaranteed loser.  Howard Varinsky, the bottom line is when you talk to jurors after cases are over, I‘m sure that their cases, for example, where a gun misfiring is at issue.  And the jurors get the gun back in the jury room, and I‘m sure they sit there and they click the gun and they see if it works, et cetera.  You know, you can‘t go back and re-evaluate everything the jurors did or didn‘t do.

VARINSKY:  Well, let‘s talk about one of the problems in this case,

and let‘s talk about what Rikki said.  Yes, they go back and they reenact

it.  They handle things.  They go over it again.  But what exactly are they

·         that‘s one of the problems in this case.  What are they reenacting?

I mean, did he stand up and toss her off?  Did he roll her off the side?  Did he throw her off the back?  I mean one of the problems in this case is there‘s no evidence of exactly what the act was, what was enacted.  And that‘s hard.  I mean so, that‘s open to interpretation about how it happened, and that‘s why this argument is going on.

ABRAMS:  ... Dean, if these jurors believe that it would have been nearly impossible for Scott Peterson to have done it the way prosecutors say he did it, and yet they‘re convinced that it must have been Scott Peterson, can they still convict?

JOHNSON:  Oh, absolutely.  You know, in every circumstantial evidence case, there‘s that defense argument that nobody would be stupid enough to try this desperate measure.  But the fact of the matter is killing your wife and your unborn child is a desperate act.  Desperate men do desperate things.  They sometimes do stupid things.

Scott Peterson might very well have been willing to risk going out in the bay in a 12-foot bloat.  We know he was going to do that.  And if he was going to do that, he certainly would risk the possibility of throwing that baby and that woman over the side of the gunnels of that boat.

ABRAMS:  All right.  Let me take a quick break here.  My legal team is going to stay with us.

Coming up—the first jury in Erik Menendez‘s murder trial deadlocked after nearly three weeks of deliberations.  Another jury said they couldn‘t reach a verdict in his brother Lyle‘s case after a month.  How long will the Judge Delucchi keep jurors in the Peterson case sequestered if they continue to have trouble?

And after almost five months of testimony, over 170 witnesses, prosecutors wrapped up the case, but they waited until closing arguments to lay out their theory that Peterson either strangled or suffocated his wife.  Did they even present evidence of that, though, during the trial?  Does it matter?  We‘re sitting in front of the courthouse waiting for a possible verdict in the Scott Peterson case.  Stay with us.

(COMMERCIAL BREAK)

ABRAMS:  Continue to wait for a verdict in the Scott Peterson case outside the courtroom.  This morning, the judge lectured the jurors about being nice, friendly jurors, suggesting some trouble could be brewing in the jury room.  They‘ve been considering the case since Wednesday afternoon.  And even with this morning‘s events, there‘s no telling just how close we are to a decision.  It‘s still possible we could hear about a verdict today, so we continue to wait.  We‘ll bring it to you immediately in it happens.

We wanted to compare it to some other high-profile trials to see how long it‘s taken juries to come up with a decision.  The most infamous jury in recent memory is the one that delivered a not guilty verdict in the O.J.  Simpson trial back in ‘95.  The jury had been sequestered for the entirety of the nine-month trial, and it took them less than four hours to say those words, not guilty.

Jurors in the two-month trial of David Westerfield, remember him, accused of killing little Danielle van Dam, after 10 days of deliberations, that took—sorry, two-month deliberations, 10 days to convict.  And then there are juries that take days and days and days to reach a decision or not.

Remember Erik and Lyle Menendez?  They stood trial for murdering their parents.  The case lasted four and a half months.  Two separate juries watched the case.  Each one assigned to one of the brothers.  Erik‘s juries deliberated for 19 days before they ended up deadlocking.  Lyle‘s were deadlocked after 25 days.

The Menendez brothers later faced another trial with only one jury. 

That lasted almost six months.  They took 20 days to convict both of them.  Oh, my—so Rikki Klieman—look, Rikki Klieman knows this stuff as well as anyone, criminal defense attorney, extraordinaire forever.  She was at Court TV for a long time.  Rikki, is it normal for a jury in a four and a half month trial to deliberate for 15, 20 days?

KLIEMAN:  Well, apparently in California it certainly is.  What we find out is that jurors take longer in California.  It‘s anecdotal, but it seems to have a lot of teeth to it.  And one of the things that they do is they tend to sift through all of the evidence.  Also, we do know, it is not anecdotal, but we have seen studies, that show that trials take much longer in California.

Now that I live here, I‘m starting to understand it.  And one of the things here, Dan, is I think Dean and Dan are absolutely correct.  We are a long way from a verdict here.  I mean I‘d like to tell you, Dan, you‘re going home to New York tomorrow, but I don‘t think so.

ABRAMS:  Yes.  Howard Varinsky, I‘m not—I‘ll tell you one thing, I had dinner plans tomorrow night.  I cancelled them this morning.  I mean there was no chance I was making it back for dinner.  But Howard, bottom line, though, people think when they hear about a case and they hear about a 20-day deliberation, they think you got to be kidding me.  But is it true that in California it‘s not that unusual in a four or five month trial to have 15 or 20 days of deliberations of a sequestered jury?

VARINSKY:  Well, I think it‘s very unusual to have 15 or 20 days.  First of all, sequestered juries are unusual in and of themselves.  But, you know, I think if it‘s going to hang, you‘re going to be here for a while, Dan.  If it‘s not going to hang, you‘re going to be home on Saturday.

ABRAMS:  But Howard, what about the fact that already this judge is instructing the jury on playing nice?  That says to me that basically—it‘s clear we know they sent out a note, it must have said, somebody‘s not playing nice on the jury.

VARINSKY:  That‘s exactly right or more than one person.  I mean somebody is really obstinate in there.  And what happens in a jury is tempers start to rise and positions become more solidified.  So yes, I don‘t think that it felt very good in there for the jurors before the judge instructed them.

ABRAMS:  All right, let me take a break here.  Everyone‘s going to stick around.

Coming up—as we wait for a possible verdict, we‘re not leaving, we want to figure out what evidence prosecutors presented that would back up their theory that Laci was strangled or suffocated.  We break down the evidence they may be combing through.

And...

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  When you talk about judges who would change the right of a woman to choose or overturn Roe v. Wade, I think that is unlikely.

(END VIDEO CLIP)

ABRAMS:  Republican Senator Arlen Specter‘s comments that President Bush could have trouble getting some of his judicial nominees through the Senate got him in trouble with the far right and even some of his conservative colleagues.  So what did he mean?  We ask him when he joins us live.

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

(COMMERCIAL BREAK)

ABRAMS:  Once again, the attorneys have been called into chambers in the Scott Peterson case.  What does it mean?  We‘re waiting for a possible verdict.  More in a minute, but first the headlines.

(NEWS BREAK)

(BEGIN VIDEO CLIP)

RICK DISTASO, PROSECUTOR:  It‘s too cold to go golfing here in Modesto, so I‘m going to get in my car in the late morning hours when I have something to do later on in the day.  I‘m going to drive then over an hour and a half to the San Francisco Bay.  I‘m going to launch my small aluminum boat in a storm.  I‘m going to drive out and fish for less than one hour.

(END VIDEO CLIP)

ABRAMS:  Prosecutors never bought Scott Peterson‘s story that he went fishing the day his wife mysteriously vanished.  They have their own theory about what he did that morning that they first detailed it in their closing arguments.  I‘m here at the Redwood City Courthouse, where we could get a verdict at any time.  And of course when we do, we will bring it to you live.  We‘re still working the phones here, trying to figure out what‘s happening in the courthouse behind me.

All right, so here‘s what the prosecutors laid out in the “Closing Argument”—this is number one—as to what happened in the house.  Scott Peterson strangled or smothered Laci the night of 12/23 or in the morning while she was getting dressed on 12/24.  He wrapped her up in the blue tarp.  He backed the truck up to the gate.  You‘ve got a fence and a house on one side.  Nobody can see a single thing you‘re doing.  He carries Laci out and puts her in the truck, puts patio umbrellas on top of her, snaps the leash on the dog, and leaves the gate open.

Dean Johnson, it‘s an interesting theory, and it‘s a sensible theory, but there really wasn‘t a whole lot of evidence to support most of that, right?

JOHNSON:  Well, there‘s not a lot of evidence to support the manner of death.  You know, anything—the prosecution has said all along that this was a so-called soft kill, which essentially means anything where you don‘t put an extra hole in somebody.  It doesn‘t leave a lot of forensic evidence.

The one piece of evidence they did point to, if Scott Peterson had strangled Laci Peterson, they‘re saying, wouldn‘t he—wouldn‘t she have fought back and left scratches on Scott‘s hands?  Having said that in their last argument, they point out that Scott Peterson, in fact, on taped interviews, displayed his hands, lo and behold, there were the scratches.  Sometimes one piece of evidence presented at the right time can do everything you need to do.

ABRAMS:  All right.  I should tell you that Mark Geragos and Pat Harris, two of the defense attorneys, have walked out of the courthouse—walked out of the courtroom where they were meeting with the judge in chambers.  Again, we don‘t know exactly what has been going on, but it has been a busy day here at the courthouse as we wait for a possible verdict.

Here was Scott Peterson on “Good Morning America” talking about those very umbrellas.

(BEGIN VIDEO CLIP)

DIANE SAWYER, CO-ANCHOR, “GOOD MORNING AMERICA”:  Did you load anything into a vehicle, anything large?

PETERSON:  Some umbrellas, some market umbrellas.  Those are those, you know, umbrellas on the stands that are you know eight feet in diameter or something like that.

SAWYER:  When did you do that?

PETERSON:  That morning.

(BEGIN VIDEO CLIP)

ABRAMS:  Daniel Horowitz, any problem here with the prosecution‘s theory?  I mean, we know that they don‘t have a lot of evidence to support exactly how it happened, but do they really need to prove that if they‘ve proved that Scott Peterson was the one who did it?

HOROWITZ:  Dan, you make a very good point.  Maybe they took too big a gamble trying to come up with the theory when nobody really knows what happened, assuming he did it.  Because what Geragos did was he said, you know, the maid said the curling iron of Laci was put away, and yet it was out that morning.

There is the Internet site that had the base, the butterfly base for umbrellas, and Laci had a butterfly tattoo.  That was accessed the morning when she was supposedly already dead.  And then they said the umbrellas were moved at Laci‘s request by Scott.  So for every theory that Distaso, an intelligent man, comes up with, Geragos, a talented attorney, came up with an alternate theory...

ABRAMS:  Yes.

HOROWITZ:  ... so you have reasonable doubt.  I think they might have been better off being more honest with the jury saying we don‘t know what happened, but we can prove he did it by his actions.

JOHNSON:  But there‘s an even bigger problem with this, Dan...

ABRAMS:  But Rikki.  Go ahead, Dean.  Go ahead, Dean.

JOHNSON:  Yes, there‘s an even bigger problem with this, which is that the prosecution in this particular instance has mentioned two different theories.  Their theory on closing, the body was hidden under the market umbrellas.  They made a very dramatic demonstration during their case in chief that they thought the body was dropped into the toolbox of the truck.  That‘s an inconsistency.  They claim that they have had one consistent theory all along.  If the jury picks up on that, that undermines their credibility.

HOROWITZ:  And Dan, very briefly...

ABRAMS:  We‘ve got prosecution flip-floppers.

(CROSSTALK)

ABRAMS:  We‘ve got flip-floppers on the prosecution.  We heard so much...

UNIDENTIFIED MALE:  No, no, no...

ABRAMS:  ... about that during the election.

(CROSSTALK)

ABRAMS:  All right, Rikki Klieman...

HOROWITZ:  And Dan...

(CROSSTALK)

HOROWITZ:  ... on that box.

KLIEMAN:  Hey, Dan, I‘m here.

ABRAMS:  All right.  Rikki Klieman...

UNIDENTIFIED MALE:  Sorry...

ABRAMS:  ... let me ask you this.  All right.  So what?  So the prosecution offers possible scenarios, and maybe they shouldn‘t have done it.  I don‘t know, do you think that they shouldn‘t have even gotten so specific and just said, look, we proved here that Scott Peterson did it.  We don‘t know exactly what happened when.  But we do know that there was no evidence at the crime scene, either he cleaned it up or he strangled or suffocated it, we don‘t know.  But we do know that he killed her.  Should they have been so specific?

KLIEMAN:  I don‘t think they should have been so specific.  It may not make any difference in the end.  They may pull this off in the end anyway, but one of the things we do know, if you don‘t need to prove time of death precisely, and you don‘t need to prove the precise manner and means of death, if you can do what the prosecution did is work backwards, and that‘s what they did.  And when they left it vague, really saying, is there any possible other explanation that is reasonable other than Scott Peterson was the killer?  And I think they were better off, because the jurors can develop their own...

ABRAMS:  Yes.

KLIEMAN:  ... theories of the case.

ABRAMS:  Rikki, yes or no, do you think there‘s any chance for an all-out acquittal here?

KLIEMAN:  No.

ABRAMS:  Howard Varinsky, any chance for an all-out acquittal?

VARINSKY:  No.

ABRAMS:  Daniel Horowitz?

HOROWITZ:  Hang jury, three people for innocent.

ABRAMS:  So you‘re saying no chance for an all-out acquittal?

HOROWITZ:  No chance, Dan.

ABRAMS:  And Dean Johnson?

JOHNSON:  Absolutely not, no chance in the world.

ABRAMS:  I agree.  Dean Johnson, Daniel Horowitz, Howard Varinsky, Rikki Klieman, another great panel.  Thanks a lot.

Still ahead—jurors still deliberating behind closed doors as we speak.  We are going to stay on top of this, give you the latest.  If anything happens, we‘ll break in the program.

Up next, though, we talk live with Senator Arlen Specter.  He‘s expected to take over the all important Senate Judiciary Committee in January, but now some hot water with some on the right for suggesting President Bush could have trouble getting judicial nominees confirmed if they support overturning Roe v. Wade.  But why has that analysis that the realities of the Senate led to so much controversy?  We talk with him after this.

(COMMERCIAL BREAK)

ABRAMS:  When Pennsylvania Republican Senator Arlen Specter was re-elected to a fifth term last week, it seemed his seniority would all but assure him one of the most powerful Senate seats, chairman of the Judiciary Committee.  But that was before Specter angered some powerful conservative groups with these comments about certain prospective Supreme Court nominees passing the Senate.

(BEGIN VIDEO CLIP)

SEN. ARLEN SPECTER ®, PENNSYLVANIA:  When you talk about judges who would change the right of a woman to choose, overturn Roe v. Wade, I think that is unlikely.

(END VIDEO CLIP)

ABRAMS:  Senator Specter insists he was just talking about political realities in the Senate.

(BEGIN VIDEO CLIP)

SPECTER:  We have had a history where the Democrats have been filibustering, so the concern as to confirmation is really the recognition of a political fact.

(END VIDEO CLIP)

ABRAMS:  But some conservative political groups have used Specter‘s remarks to start a campaign to deny his the Judiciary Committee chair.  And as “Focus on the Family‘s” James Dobson explains, that‘s not just because of his position on abortion.

(BEGIN VIDEO CLIP)

JAMES DOBSON, “FOCUS ON THE FAMILY”:  He has been the champion of stem cell, embryonic stem cell research and so many other things.  He‘s remembered most for having sabotaged Robert Bork.  He is a problem, and he must be derailed.

(END VIDEO CLIP)

ABRAMS:  “My Take”—first of all, if the Senate is ever going to work together in the way both sides claim they want to, it will be people like Arlen Specter who are going to make it happen, respected, moderate Republicans.  Secondly, I honestly don‘t understand what the uproar is about.  Senator Specter didn‘t say I‘m going to vote against anyone who opposes Roe v. Wade.  He was reflecting a reality in the Senate.

There are 44 Democrats and one Independent and as a result, they can filibuster with at least 40 and keep some of the president‘s judicial nominees from getting a vote up or down if they‘re willing to pay the political price for that.  With me to discuss this now is Senator Arlen Specter of Pennsylvania.  Senator, thank you so much for taking the time.  We appreciate it.

SPECTER:  Glad to be here on your program, Dan.  Thank you very much.  I think you really go right to the heart of the matter when you have my support of pro-life judges, I‘ve never imposed any litmus test.  I voted for Chief Justice Rehnquist after I knew that he voted against Roe v. Wade.  I voted for Justice Scalia.  I led the fight to confirm Justice Clarence Thomas and almost lost my Senate seat in the battle for that.

ABRAMS:  Well, but you are someone who has said that you are pro-choice.  Is that correct?

SPECTER:  Well, that‘s right.  But being pro-choice doesn‘t mean that I have a litmus test because the record is very plain that I have supported nominees who are pro-life.  In Pennsylvania, in the last two years, President Bush nominated two very conservative judges, Brooks Smith and Mike Fisher.  Mike Fisher had run for governor on a pro-life platform.

And I went to the Democrats—I learned a long time ago, Dan, that if you want to get something done in Washington, you have to be willing to cross party lines from time to time, got me into a lot of trouble on my primary.  But I went to bat for both of these very conservative court of appeals judges at a time when all of the court of appeals nominees were being filibustered and rejected and both were confirmed.

ABRAMS:  Let me ask you this, Senator.

SPECTER:  Sure.

ABRAMS:  We understand you say that you have no litmus test.  We accept—all right, would a judge‘s desire, though, to overturn Roe v.  Wade be a factor you would consider against a prospective nominee, considering your views on the matter?

SPECTER:  No, it would not.  Listen, on the matter of separation of powers, the president makes the nominations and he has broad latitude.  Then it‘s up to the Senate to make it an evaluation as to whether the nominee is qualified.  Then it‘s up to the Supreme Court to make a decision on what constitutional law is.  And that is separation of power, and that‘s not my function to make the decision.  My function is the one I just described to you.

ABRAMS:  But it seems that some on—I think it‘s fair to say, on the far right, will accept nothing short of judges who insist that they would overturn Roe v. Wade, and some have said that the president will capitulate to those desires.  Are you concerned about that possibility?

SPECTER:  Listen, the president said in the third debate very explicitly that he will not have any litmus test.  That‘s the president‘s judgment, and he‘s the person who has the discretion to make the nomination.

ABRAMS:  And do you accept that at face value?  I mean the bottom line is that some say that even though the president may not have a litmus test, the people who are giving him advice do.

SPECTER:  Well, that‘s a presidential decision.  The reality is in those situations you don‘t know how a person is going to vote one way or another.  I knew when Chief Justice Rehnquist was up that he‘d already voted against Roe v. Wade.  I knew that when I backed Mike Fisher for the Third Circuit Court of Appeals that he was pro-life.  But that was not a factor in my judgment.  The facts on my judgment are, was the man qualified without regard to a litmus test on pro-choice, pro-life.

ABRAMS:  And what does qualified mean?  I mean when it comes to judges, there are so many factors.  There‘s where the person was educated, there‘s how many years the person has been on the bench.  How does one determine what makes a good judge?

SPECTER:  You take a look at their academic record.  You take a look at their practice of law.  If they‘re on the bench, you read the opinions.  You evaluate the scholarship.  You evaluate the insights.  Then there are the hearings where you have a chance to explore a variety of legal situations to discuss with the nominee, their judicial philosophy, and their approach to jurisprudence.

Look, Dan, I‘ve been at it for a long time.  I was district attorney of Philadelphia at a time when criminal constitutional law was revolutionized, been through it, been on the Judiciary Committee for 24 years.  I‘ve been involved in eight nomination proceedings for Supreme Court justice.

ABRAMS:  Yes.

SPECTER:  So there‘s a fair amount of background as to how to make these evaluations, and my record on sharing committees has been one of impeccable fairness.  Remember...

ABRAMS:  Are you...

(CROSSTALK)

ABRAMS:  Are you still on track—Senator, I‘m sorry to interrupt.  Do you think you‘re still on track to take over the position as chairman of the Judiciary Committee?

SPECTER:  Well, I don‘t want to make any predictions as to that.  Whenever there‘s an issue, I take it very seriously, and I‘m taking this one very seriously and I‘m working on it.  I was going to talk to you about Randy Weaver.  Remember what happened on Ruby Ridge?  I chaired those hearings, and when they were over, everybody thought it was very fair and appropriate.

The FBI director, Louis Freeh, changed their rules of deadly engagement, and Randy Weaver, who had been up on the mountain, said if he‘d known that he‘d be treated so fairly, he would have come down a long time ago.  I mention that as a really highly charged, highly controversial manner on the Senate oversight...

ABRAMS:  Yes.

SPECTER:  ... where people complimented the approach that I did in a very fair, even-handed way, and that‘s my approach.

ABRAMS:  Senator, I‘m almost out of time here, but any potential nominees that you can think of who you think would make outstanding Supreme Court justices?

SPECTER:  That‘s really not my role.  I‘m not going to speculate about that.  That‘s...

ABRAMS:  I didn‘t think you would...

SPECTER:  That‘s the...

ABRAMS:  I didn‘t think you would, but I figured I‘d try.

SPECTER:  That‘s the president‘s prerogative.  When it comes to my role, I‘ll lay my integrity on the line.  I was very gratified to hear—

Karl Rove said that Arlen Specter is a man of his word and we‘ll take him at his word when he says he‘ll give fair consideration, prompt hearings, and very, very heartening to find that kind of support for my integrity.

ABRAMS:  Senator Specter, thank you very much for taking the time to come on the program.  Appreciate it.

SPECTER:  Great being with you, Dan.  Thank you very much for the invitation.  I appreciate it.

ABRAMS:  Coming up—the jury is still deliberating behind closed doors in the Scott Peterson case.  It could come down at any time.  We are sitting in front of the courthouse.  We will bring you a late update when we come back.

(COMMERCIAL BREAK)

ABRAMS:  We‘ve got some news to report from the jury in the Scott Peterson case.  We will have an update coming up in a few seconds.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  We have got some news to report in the Scott Peterson case.  The jury continues its deliberations and Jennifer London has just come out of the courthouse.  Jennifer, what‘s going on?

JENNIFER LONDON, MSNBC CORRESPONDENT:  Well, Dan, we understand that attorneys for both sides have now left the courtroom.  As you mentioned, as best we can tell, the jury is continuing to deliberate.  And here‘s what I can tell you from when I was in the courtroom.  It was sort of like musical attorneys, if you will.  They were coming.  They were going.

Earlier today, we did see the defense team go into chambers with Judge Delucchi.  At that point, no sign of the prosecution.  When I was in the courtroom, we did see defense attorney Mark Geragos and Pat Harris go back into chambers.  Then they came out of chambers.  They left the courthouse smiling.

Then they went back into chambers.  Right as I was leaving the courthouse, Dan, I did see the prosecution team arrive.  And now we are being told, all the attorneys have left the courthouse.  But we believe the jury continues to deliberate.

ABRAMS:  All right.  Let me just tell you, the jury has apparently asked for tidal charts, about the tides in the San Francisco Bay, the Amber Frey tapes.  They‘ve asked for a plastic tarp that the body was found with.  It looks like these jurors are digging their heels in for a long deliberation process.  Jennifer London, thanks very much.

I should also point out that one of the jurors had a surgery scheduled that some thought might interfere with the deliberations.  We‘re told by two different sources that that is not expected to impact the deliberations.  That if need be, that that juror will forego or at least delay the surgery and continue the deliberation process.

Time now for “Your Rebuttal”.  Usually we do a “Closing Argument”, but we have only got time for your thoughts, so let‘s go to it.  We‘re still waiting for a verdict in the Peterson trial, outside the courthouse in Redwood City here.  The jury can consider second-degree murder, which means no premeditation.

Don Eisner, Ph.D writes, “How can there be a second-degree murder conviction if there is the planning needed to make the anchors?”  Well Don, they could believe the evidence with regard to the anchors was not persuasive enough, but that there was clear evidence that he killed Laci.

From Port McNeil, British Columbia, Jenny Durke.  “There is one small detail I would question.  Why if he murdered Laci would he take a picture of him and Laci to Mexico if Amber Frey was the motive for the crime?  Would it not make more sense for him to take a picture of her with him?”

More sense, yes, maybe.  But he had Amber‘s address and directions to her house with him.  And if he killed her, that doesn‘t mean he didn‘t feel bad about it four months later.

And on Friday, we had a psychologist on the program to explain why many women are writing letters to Scott Peterson at the Redwood City jail expressing their desire to meet and even love him.

Molly McCaa in California, “I guess it just goes to show that even a cheating, porn-addicted suspected killer like Scott Peterson has female admirers who are willing to forget the sleazy and possibly heinous activities he‘s been involved in.  Are these the same women that sent marriage proposals to Jeffrey Dahmer?”

Finally in my “Closing Argument” Friday, I told you some of the difficulties of doing a live show from outside the courthouse.  Many of you in the area offered to help my stay here become more pleasurable, including Ericka Leiva.

“I wanted you to know—I wanted to know what can a loyal Bay area fan of you and your show can do to make your stay a little better?  Is there something I could bring you?  What can I do to make you feel more at home?”

Well, thank you Ericka.  Thank you to all of you who offered.  I didn‘t mean to suggest that you should feel sorry for me.  I was just expressing my bias for a quicker verdict, but thank you.  It was very nice of all of you.

UNIDENTIFIED MALE:  The jury is done...

ABRAMS:  All right.  The jury is done for the day, by the way.  We just learned.  The jury is done for the day and that means that they are coming back tomorrow.

Abramsreport—one word -- @msnbc.com.  Thanks for watching. 

“HARDBALL” with Chris Matthews is next.  We‘ll be back right here tomorrow.

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