updated 11/10/2004 11:43:55 AM ET 2004-11-10T16:43:55

Guest: Dean Johnson, Daniel Horowitz, Justin Falconer, Leslie Crocker Snyder, Mickey Sherman, Viet Dinh

DAN ABRAMS, HOST:  A juror dismissed in the Scott Peterson trial.  An alternate takes her place.  The jurors told they must begin deliberations all over again. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  The judge reminds jurors to only consider the evidence presented in court, and not to independently research anything after dismissing juror number seven for violating that rule.  What does it mean for the case?  Could it be good news for the defense?  And we‘ll talk to the other juror dismissed from the case.  Justin Falconer, formally known as juror number five.  

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  We have a got of lot of news to report to you today.  Word just in that Attorney General John Ashcroft has resigned along with Commerce Secretary Don Evans.  We‘ll have more on that later in the hour. 

But first we‘re here in Redwood City, California, in front of the courthouse where it has been a day of drama in the Scott Peterson trial.  The families of both Scott and Laci Peterson summoned back to court, not for a verdict.  But we have just learned that one of the jurors, juror number seven has been thrown off the panel, an Asian woman in her late 50‘s or early 60‘s.  She‘s retired from her job at Pacific Gas & Electric.  In pretrial questioning she said she could believe that Peterson might have been falsely accused, that she didn‘t see a motive for something that heinous, called herself a crusader, apparently she was, who said she wouldn‘t be pressured by other jurors. 

She will now be replaced by alternate, formerly number two, now number one, a white woman in her 30‘s, a mother of four.  She‘s got nine tattoos.  She was working at a bank when she was selected, a job she said she was willing to quit in order to serve.  She also told the court her brother had been in and out of prison for most of his life on drug related offenses and as a result that her mother became a drug counselor. 

Now the jury is supposed to start its deliberations all over again, at least that is the theory.  OK, so this is big news, but how does it affect the case?  Dropping a regular juror for this particular alternate, does it do anything for Scott Peterson‘s chances?  Might it help the prosecution?  I don‘t know.  Seems to me that this alternate juror really could be good for the defense. 

Let‘s bring in our legal team—Justin Falconer, the former Peterson case juror number five, cut loose by Judge Delucchi after he was seen and photographed talking with Laci Peterson‘s brother, but you know in the end it‘s unclear why he got dismissed.  Criminal defense attorney Mickey Sherman joins us as well and former New York Supreme Court judge and NBC News analyst Leslie Crocker Snyder, former San Mateo County prosecutor Dean Johnson, and criminal defense attorney Daniel Horowitz.

Dean, You were inside the courtroom.  Lay it out for us. 

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Well, when we came back from the lunch break seat number seven was empty.  Judge Delucchi announced briefly that one of the jurors had been excused and asked alternate two, who is next in line, to take seat number seven.  Alternate number two looked around for a while, wasn‘t sure what she was supposed to do, then did assume her seat.  And then the judge admonished the jury for the third time that they are not to consider in their decision anything but the law that he has given to them and the facts that have been introduced into evidence, suggesting as rumors that have been flying around suggested that possibly this juror, number seven, had done some independent research or investigation on her own...

ABRAMS:  Yes.

JOHNSON:  ... leading to her dismissal. 

ABRAMS:  Well that is what we are told that she did do some independent research on her own.  This is the instruction the judge gave to the jury and this is the one that he repeated only moments ago. 

(BEGIN VIDEO CLIP)

VOICE OF HON. ALFRED DELUCCHI, PETERSON TRIAL JUDGE:  You must decide all questions of fact in this case from the evidence received in this trial and not from any other source.  You must not independently investigate the facts or the law or consider or discuss facts as to which there is no evidence.  This means, for example, that you must not on your own visit the scene, conduct experiments, or consult reference works or persons for additional information. 

(END VIDEO CLIP)

ABRAMS:  Daniel Horowitz, I think this is good news for the defense.  This is a woman who said that she likes to debate and she previously worked for a law firm, attended a police academy, but she has a brother who‘s been in and out of prison all his life.  She was in tears when Scott Peterson was crying in that interview with “Good Morning America,” which many have said they thought were crocodile tears.  Apparently, she found it to be so emotional that she started crying herself.  I don‘t know.  It seems to me that‘s a positive for the defense here.

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  Dan, this is a positive for the defense, even if the dismissed juror was a pro-defense juror.  The reasons that you just gave are among them, but also this jury is going to have to start from square one, and as you said earlier today, usually that‘s pro forma.  They just say hey, get up to speed new juror, here‘s where we‘re at, but not with this one. 

I‘ve been watching her the whole trial, Dan.  She‘s independent.  You know, at the last day of testimony she dyed her hair bright red and I took that as a message that I‘m going to stand out, send a message to all of you.  I‘m my own person.  If so, Dan, welcome to Redwood City.  We‘re glad you‘re here in California.  You‘re going to be around for a while. 

(CROSSTALK)

ABRAMS:  Yes.  All right...

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

ABRAMS:  Go ahead, Dean. 

JOHNSON:  Dan, I‘ve got to disagree with you completely.  I think this is a one-two blow for the defense.  They lost probably the most pro defense juror and now we have this new juror, code name, “strawberry shortcake” on.  She is very, very emotional.  And remember Mark Geragos‘ closing argument, you‘ve got to separate emotion from the evidence.  You cannot decide this case you‘re your emotion.  And I can tell you that prosecution team, which is usually fairly stoic in the courtroom, was grinning ear-to-ear and rightly so. 

ABRAMS:  All right.  And I heard this man say on television the other night, and who would know these jurors better than him, since he‘s the only one person who served with them.  Justin Falconer, good to see you again. 

JUSTIN FALCONER, DISMISSED PETERSON JUROR:  Good to see you Dan.

ABRAMS:  All right, Justin, so what do you make of this, losing juror number seven, adding alternate number two.  Based on what you saw on that jury, and, again, you weren‘t allowed to talk about the case, but your sense as to which side this helps or hurts? 

FALCONER:  You know, I think it helps the defense.  I think it really does.  I think that you know she was—she is an emotional person, but I do think after speaking to her and getting to know her a little bit on—in the time that I was there, that she is, you know, she‘s really open-minded.  So it‘s not going to—I don‘t think it‘s—right now it‘s kind of hard to say who she would go for, but I think—I honestly think it‘s good for the defense.  I‘m really surprised that number seven was booted.  I‘m really surprised that she would take that into her own hands. 

ABRAMS:  Why?  I mean what is it about her that surprises you that she may have done her own independent research?  And apparently we believe it occurred before they became sequestered.  I mean at this point it would be pretty tough.  You would have to sort of sneak out your window and climb over to a Kinko‘s and sit there and go on the computer.  The reality is it sounds like she let something slip during the deliberation process. 

FALCONER:  Yes, it surprises me.  You know, if you said—actually if you told me that, you know, any of these jurors, you know, kind of did their own investigation, it wouldn‘t surprise me.  You have a lot of people who are investigators on this jury.  You have a doctor, lawyer.  You have a retired police officer.  You have a fireman. 

You have a lot of people that would do that.  But I think it‘s kind of silly that they do that.  These people have been sitting on this jury for five and a half months.  They are lucky it wasn‘t a mistrial.  And I tell you something, if a juror screwed up like that and then got a mistrial after I had been sitting there on that jury for five months I‘d be livid.  I‘d want to choke their neck.  So they‘re lucky that they didn‘t...

ABRAMS:  Yes.

FALCONER:  ... that she didn‘t cause a mistrial.  But I‘m really surprised.  Let me tell you—when I was with—when I was in the jury she was one of the people I talked to every single day.  She was very friendly, very open, very open-minded and she was really a great person to talk to.  She seemed really friendly and I‘m really surprised that she would take this in her own hands and jeopardize the case like this. 

ABRAMS:  Did she ever say to you, you know hey, you should check the Internet because what they were talking about today is on, you know, Yahoo!.

FALCONER:  No, you know she never did.  You know when the stuff happened with me, it was—you know I think everybody knew about it because of the buzz that was going around in front of the courthouse.  So I don‘t think, you know, anybody was really looking into the case.  I‘m surprised to hear that she was, and I‘m surprised to hear that she would let it go. 

And it really is kind of frightening if you think about it, because if other jurors are actually getting their information from the Internet instead of the prosecution, maybe the prosecution didn‘t provide enough evidence...

ABRAMS:  Yes.

FALCONER:  ... or maybe there was too much open spots.  There‘s too many questions that they needed answers, that they felt like they had...

ABRAMS:  Yes.

FALCONER:  ... to go someplace like MSNBC or like, you know, Court TV to these documents where they looked it up. 

ABRAMS:  Yes.

FALCONER:  I think that‘s really frightening and I don‘t think that‘s fair to Scott at all.

MICKEY SHERMAN, CRIMINAL DEFENSE ATTORNEY:  Justin, could you move to...

ABRAMS:  Yes...

SHERMAN:  ... Connecticut?  I could use a juror like you. 

ABRAMS:  Justin...

SHERMAN:  Really...

ABRAMS:  Justin...

(CROSSTALK)

ABRAMS:  Yes, Justin Falconer is always figuring out a way as to how it helps the defense. 

SHERMAN:  Do you have any relatives in Connecticut, Justin...

ABRAMS:  Stick around...

FALCONER:  I‘m sorry...

ABRAMS:  Hang on.  Mickey Sherman and Judge Snyder, I promise I‘m going to bring you both in, but I‘ve just got to take a quick break here...

(BEGIN AUDIOTAPE)

AMBER FREY, SCOTT PETERSON‘S FORMER GIRLFRIEND:  Yes and I deserve to understand an explanation of why you told me you had lost your wife and this was the first holidays you‘d spend without her...

(END AUDIOTAPE)

ABRAMS:  Before the shakeup, the jury asked to see transcripts from Peterson‘s phone calls with Amber Frey, but now they have to start all over again, effectively.  What does it all mean?  And we‘re going to take a look back at other cases where jurors have engaged in misconduct. 

And Attorney General John Ashcroft has resigned.  We‘ve got the latest on that coming up as well.  A big legal news day—the program about justice continues in a moment. 

(COMMERCIAL BREAK)

ABRAMS:  A juror dismissed from the Scott Peterson case, another one taking her place.  What does it mean?  Are they deliberating more?  We‘re going to have some late-breaking details coming up in a moment. 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

DELUCCHI:  You must decide all questions of fact in this case from the evidence received in this trial and not from any other source.  You must not independently investigate the facts or the law, or consider or discuss facts as to which there is no evidence. 

(END VIDEO CLIP)

ABRAMS:  That was the instruction that the judge repeated in court only moments ago after dismissing a juror, apparently for violating that rule and doing her own research in the case.  Let me bring in Mickey Sherman and Judge Snyder.  All right.  So Judge Snyder, how big a deal is this?  

LESLIE CROCKER SNYDER, FORMER NY STATE JUDGE:  Well, to me it—although we‘re speculating, of course, it really increases the possibility of a hung jury, but we don‘t know.  This woman is going to come in now—the jurors are probably already at each other‘s throats, based on what we‘ve heard.  And now they theoretically have to start all over again.  Well, they certainly have to review what they‘ve reviewed because she‘s coming in later on.  I don‘t think that it‘s very likely from what we‘re hearing about her that it‘s going to increase the odds of a unanimous verdict, again, speculation. 

ABRAMS:  Mickey, but they don‘t really—I mean yes, the judge says to them, you must start from the beginning of your deliberation process again.  But the reality is 11 of them know exactly where they stand.  We‘re not going to take four or five days to get up to the point where we are now again...

SHERMAN:  Yes, I‘m sure they just basically said yes sure, judge, yada, yada, yada.  But you know I‘m not one of the folks who believes that this is a great juror for the defense because of her hair color or the number of her tattoos.  And by the way, Dan, how do we know she‘s got nine tattoos?  That bothers me just a little bit that we know that. 

(LAUGHTER)

SHERMAN:  I thought this was the program about justice.  In any event, what I think helps the defense here is down the road.  And that is, if this jury comes back guilty, well I think they‘ve got a shot at attacking the integrity of the verdict by saying forget about the juror did research.  That hurt her, but she obviously shared that knowledge or her research with the rest of the jury...

CROCKER SNYDER:  Wait a minute Mickey...

SHERMAN:  Otherwise we wouldn‘t know about this...

CROCKER SNYDER:  Mickey...

SHERMAN:  ... therefore she contaminated this jury. 

CROCKER SNYDER:  Mickey, no I have to disagree...

UNIDENTIFIED MALE:  No.

CROCKER SNYDER:  ... because if there were any claim of contamination by the defense, the judge would certainly have voir dired the jury as a group or individually.

ABRAMS:  And I think he did...

CROCKER SNYDER:  Well he did...

ABRAMS:  I think he did...

CROCKER SNYDER:  We haven‘t heard about that. 

(CROSSTALK)

ABRAMS:  ... we don‘t know for sure, Leslie, because it was in chambers, but I get the sense that he did.  There was a time delay between the point at which...

CROCKER SNYDER:  OK.

ABRAMS:  ... it started to the point at which he came in and instructed the jurors again.  So I would guess that in that time delay that the judge questioned each and every juror and said, what did she say?  Did it affect you?  Can you continue to deliberate fairly? 

CROCKER SNYDER:  Well that‘s my point to Mickey.  Because I‘ve had similar, although different situations arise, and voir dired each juror separately, with both sides present, of course, and of course that‘s on the record...

SHERMAN:  Yes and Leslie, just so you do your best...

CROCKER SNYDER:  Right.

SHERMAN:  ... and that‘s what we want to you to do.  But you still cannot unring that bell...

(CROSSTALK)

SHERMAN:  They still heard some information.

CROCKER SNYDER:  But if the judge is good, he‘s made an adequate record so that he doesn‘t face reversal on that point.  That‘s my point. 

SHERMAN:  The interesting thing is we‘re going to know what she looked up...

ABRAMS:  All right.

SHERMAN:  ... because we‘re going to see her on one of the morning shows within six hours.  That‘s the drum out there, Dan...

ABRAMS:  Well...

SHERMAN:  I‘m surprised we don‘t see...

ABRAMS:  Yes, there‘s a question as to whether she‘s been gagged.  We are told that this juror has been instructed by the judge not to speak until the deliberation process is over.  But there seems to be a level of uncertainty surrounding that.  And Mickey is right, if there‘s any uncertainty, we can expect either to see her by the end of this show...

(CROSSTALK)

ABRAMS:  ... or if not, then in the morning.  All right.  But Dean Johnson and Daniel Horowitz have been here every day during this trial.  Dean, this is a juror who watched Scott Peterson crying on that interview with “Good Morning America” and started crying herself.  How you can say that‘s not good for the defense?

JOHNSON:  Well, for a couple of reasons.  That wasn‘t the only time she cried.  She also cried when she saw Laci Peterson‘s autopsy photos, when she heard the details of the death of Laci Peterson.  This is a very emotional juror.  I think she‘s going to decide a lot with her emotions.  She‘s ultimately not going to like Scott Peterson.  She‘s not going to like this crime. 

She‘s going to identify with the victims.  And I think from an intellectual standpoint she‘s more of a follower.  That if the other 11 are going in one direction, she‘s going to go in that direction with them.  It‘s good for the defense because the original juror, number seven, as you‘ve described her, was a crusader and we think a pro-defense crusader.  I think quite frankly she was the logjam that‘s created the problems over the last couple of days...

ABRAMS:  Well...

JOHNSON:  Once that logjam disappears, I think they are more easily—they are more likely to proceed towards a decision. 

ABRAMS:  And maybe that‘s why juror number five, Justin Falconer, liked her so much, right, Justin? 

FALCONER:  You know, I don‘t think she was...

(LAUGHTER)

FALCONER:  ... I‘m not going to say that she was for the defense.  I really am not.  She—I‘m not too certain that she was.  I think she was pretty borderline, but I kind of have to lean more towards the prosecution.  I think she was leaning more towards for the prosecution than she was the defense.  But, you know, I definitely think that, you know, alternate number two or you know the one who‘s there now, the new number seven, I think she is definitely good for the defense.  And she is emotional, but I do think that, you know, I think that she‘s pro-defense.  I‘m going to have to say that. 

ABRAMS:  Justin, let‘s clarify...

UNIDENTIFIED MALE:  Dan...

ABRAMS:  ... one thing for the record because a lot of my—hang on one second.  Let me clarify one thing for the record.  A lot of my viewers write in and ask this question.  Have you and you can just—we‘ll keep this between us Justin...

(CROSSTALK)

FALCONER:  Thank you.

ABRAMS:  ... the rest of the panelists...

FALCONER:  Nobody else will know, right...

ABRAMS:  ... cover their ears.  All right...

FALCONER:  OK.

ABRAMS:  ... everyone else is going to cover their ears...

FALCONER:  (UNINTELLIGIBLE)

ABRAMS:  It‘s just you and me, Justin...

FALCONER:  No, I haven‘t spoken to anybody on the jury...

ABRAMS:  Have you spoken to any of the other jurors since you were dismissed?  Even like hey, bud, just wanted to check in on how you‘re doing...

SHERMAN:  Justin...

FALCONER:  No...

SHERMAN:  ... I advise you not to answer that question. 

ABRAMS:  Hang on.  Hang on...

CROCKER SNYDER:  But you know...

ABRAMS:  Go ahead...

(CROSSTALK)

ABRAMS:  Hang on.  Let him answer...

(CROSSTALK)

ABRAMS:  Let him answer...

FALCONER:  I got some...

ABRAMS:  Quiet, quiet, Mickey, Mickey...

FALCONER:  I‘ve got some advice all of a sudden...

ABRAMS:  Justin, go ahead.

FALCONER:  ... so I have an attorney speaking to me in my ear, so hold on...

(CROSSTALK)

FALCONER:  No, you know what, I haven‘t.  I haven‘t spoken to any of them.  I don‘t have any of their, you know, numbers.  I don‘t even have their names.  I only know one juror‘s name, so that‘s...

ABRAMS:  All right...

FALCONER:  ... about it.

CROCKER SNYDER:  Well Dan, if that‘s true...

ABRAMS:  Let take a...

CROCKER SNYDER:  ... I mean Justin‘s information...

ABRAMS:  Let me take a quick break here.  Let me...

CROCKER SNYDER:  Oh, OK.

ABRAMS:  Let me just—sorry, sorry, Leslie.  Let me just take a quick break here.  When we come back, we‘re going to talk about other cases, what‘s happened when jurors go into their deliberations and bring in their own experiences, do their own tests. 

We are waiting outside the courthouse.  That jury presumably is deliberating again.  If anything happens we are sitting right here.  We are going to bring it to you immediately. 

And before juror number seven‘s dismissal, the jury requested to see a lot of information on Laci‘s insurance policy, Scott‘s fishing licenses, the Amber Frey tapes.  Does that tell us that they were discussing premeditation?  And will they quickly pick up where they left off? 

And President Bush wishes Attorney General John Ashcroft well as he steps down as the country‘s top lawyer.  We get a late report and talk with one of his top deputies from the Justice Department.  A big program, stay with us. 

(COMMERCIAL BREAK)

ABRAMS:  We‘re back in front of the courthouse in Redwood City, California, where we continue to wait for any word from the jury in the Scott Peterson case.  But, a juror in this murder trial has just been kicked off the case because she was apparently doing her own research.  Maybe a little too dedicated to her duty, putting in extra hours to work on the case on her own time.  We‘re not sure exactly what type of research she did, but we do know that in other cases jurors have been dismissed and in some cases mistrials have been declared because jurors decided to play detective. 

Some jurors are dismissed simply because they look up legal definitions in dictionaries or on the Internet, as the case may be here.  But in some cases jurors have even taken it upon themselves to conduct experiments during deliberations.  In another California case where a defendant was on trial for attempted voluntary manslaughter and other charges, the jurors turned on and off the lights in the jury room to determine if they could identify each other‘s features in the dark. 

And in another case where a plaintiff was suing over false arrest, one juror went home, reenacted the arrest, had other people pin down her arms and legs and then came back and told the other jurors the outcome of the experiment.  The judges in both cases called the experiments juror misconduct.  New trials were granted.  Not so here.  So Judge Snyder, what do you think the judge determined was different in this case than in some of those other cases where they said, look, we‘ve just got throw this case out and start over again.

CROCKER SNYDER:  Well first of all, obviously, the judge doesn‘t want to declare a mistrial.  He has got five months invested, it‘s money, it‘s time, it‘s effort, and he‘s in the center of the spotlight.  The trial is a national media frenzy—feeding frenzy as we all know, and it‘s feeding a lot of people too.  So clearly he wants to salvage it.  We all want to as judges salvage every trial.  So what does he do? 

He voir dires the jury presumably and he gets each juror to state on the record either that this other juror who‘s been—now been excused and dismissed, did not tell them anything, or that nothing she said would affect them in any way.  And that is the way to salvage the case.  And if he made a good enough record, and he certainly seems competent enough to do it, then I don‘t think there will be a reversal.  But until we see that record, we won‘t know.  So...

(CROSSTALK)

CROCKER SNYDER:  ... obviously...

ABRAMS:  Sorry Leslie, I apologize...

CROCKER SNYDER:  No, I was just going to say obviously nothing so egregious happened that he felt he couldn‘t rectify it on the record. 

ABRAMS:  Daniel Horowitz, did either side as far as we know ask for a mistrial?  I‘m sure the prosecution didn‘t.  But do you think the defense was in there—they must have to protect the record, I assume, said, look, we want this case to end.

HOROWITZ:  You know, Dan, as far as I know they did not ask for a mistrial.  And it‘s interesting because theoretically this jury was tainted.  We know that when jurors got in the boat, Geragos was screaming and yelling.  Earlier when they examined the boat and tried to rock it, that was a big deal to him.

Now you know you from Geragos not saying anything that he‘s very pleased about what went on today.  And Judge, you are right.  I know Judge Delucchi.  He very carefully protected the record, asked every juror is this going to influence you?  Can you put it out of your mind?  And in California the courts of appeals are very, very protective of jury verdicts.  If the judge made a good record, this case will not be reversed...

ABRAMS:  Daniel...

HOROWITZ:  ... based upon what happened today. 

ABRAMS:  ... but if he‘s protecting the record so much, what is he doing letting the jurors jump up and down in a boat...

CROCKER SNYDER:  Well you know...

ABRAMS:  ... that‘s a piece of evidence in this case? 

CROCKER SNYDER:  ... that was very bad...

HOROWITZ:  You know...

CROCKER SNYDER:  I really think the judge screwed up there...

(CROSSTALK)

ABRAMS:  Let me let Daniel respond.  Go ahead.  Daniel Horowitz, go ahead...

HOROWITZ:  ... he didn‘t screw up.  It‘s a little bit—it‘s gotten blown out of proportion.  Two jurors got in the boat and started to rock it.  They didn‘t jump up and down like maniacs. 

ABRAMS:  But why are they in the boat? 

HOROWITZ:  ... interesting.  Well you know it‘s interesting it‘s in evidence.  If a pencil was in evidence, I could look at it.  If a gun was in evidence, I could pull the trigger.  This boat is in evidence.  They have a right to touch it, feel it, and move it.  It‘s just where is that borderline between an experiment and Dan, you described...

(CROSSTALK)

HOROWITZ:  ... gross examples of experiments earlier...

(CROSSTALK)

HOROWITZ:  ... just examining the evidence.  So Delucchi had to walk a fine line and I think he did the best he could...

(CROSSTALK)

JOHNSON:  ... there‘s no question...

(CROSSTALK)

JOHNSON:  Under California law, there‘s no...

ABRAMS:  Dean Johnson.

JOHNSON:  Under California law, there‘s no question that Judge Delucchi‘s decision was correct.  The law is very clear.  As long as the jurors are together deliberating and what they‘re doing is actually manipulating the evidence that has actually been introduced into court, they‘re doing nothing wrong.  Even if they do some sort of experiment, whether it‘s testing a gun to see if the firing mechanism works...

ABRAMS:  All right...

JOHNSON:  ... or getting in a boat to see how it looks and feels and how it shakes when they jump up and down.

CROCKER SNYDER:  Boy this seems...

ABRAMS:  All right, let me...

CROCKER SNYDER:  I‘m sorry...

ABRAMS:  Let me take a quick break here.  When we come back, the jurors asked for a lot of evidence before all this nonsense.  We‘re going to tell you what that is.  And I am sitting here and staying here until there‘s a verdict, so you never know.  So don‘t go anywhere. 

In the meantime Attorney General John Ashcroft announces today he is stepping down from his post.  One of the first of two members of President Bush‘s cabinet to leave after his re-election.  We‘re going to talk to someone who worked very closely with John Ashcroft and try and figure out why he left and who might take over.  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  We continue to wait for a verdict in front of the courthouse in Redwood City, California.  This after a juror is kicked off the case.  We‘re going to go through some of the evidence the jurors asked to see right before that juror got the heave-ho.  Stick around. 

(NEWS BREAK)

(BEGIN VIDEO CLIP)

DELUCCHI:  The people and the defendant are entitled to the individual opinion of each juror.  Each of you must consider the evidence for the purpose of reaching a verdict, if you can do so. 

(END VIDEO CLIP)

ABRAMS:  And that is exactly what the jurors are doing.  A new jury with one of the alternates replacing juror number seven about an hour ago.  And so they‘re back there resuming their deliberations.  Who knows, maybe that jury number seven who had been on the jury was holding things up and now suddenly things are going to move very quickly.  And that‘s why we‘re sitting right here in front of the courthouse to bring it to you as soon as it happens. 

All right.  Yesterday at the end of the day, right before the jurors left, they asked for a number of items of evidence.  They asked for the tapes of Amber Frey, at least the transcripts of the conversations between Scott and Amber Frey.  They asked for the cement anchor that went with Scott Peterson‘s boat.  They asked for a fishing license that Scott Peterson had.  They asked about tidal charts with regard to the San Francisco Bay. 

The question is what does it all mean?  All right.  Mickey Sherman, this says to me that before this mishap with this juror that this jury was looking at the issue of premeditation.  I mean who knows for sure, but all of these issues, Amber Frey, the tidal currents, the fishing license, the cement anchor, they all go to premeditation.  And does that mean that it could be good for the prosecution and that maybe they‘re weighing first or second-degree murder? 

SHERMAN:  The only thing we know for sure, Dan, is that we don‘t know anything for sure.  Those are pretty good guesses, but that‘s what they are, they‘re guesses.  And also, we‘re assuming that maybe...

ABRAMS:  But they‘re good guesses.

SHERMAN:  Maybe there‘s just a few people or one person who is hanging out for not guilty.  It could be exactly the opposite way.  There could be 10 people in there who are saying not guilty and one or two saying guilty.  It‘s just such a mystery and to try and figure out from the evidence that they‘re asking for, we are always wrong. 

ABRAMS:  Well...

SHERMAN:  When I say “we” I am talking about the lawyers, the court watchers...

ABRAMS:  No, you know what...

SHERMAN:  ... the media.  We are always wrong. 

ABRAMS:  You know what, Mickey?  We are wrong about a lot of things and particularly when it comes to jury deliberations, we—I always get wrong how long the jury is going to deliberate, you know, et cetera.  But when it comes to what they‘re asking for, I actually find Leslie Crocker Snyder, that we‘re right, not all the time, but a lot of the time, that it kind of makes sense.  Now this one is a little bit of a long shot analysis when I say premeditation, but it‘s the only thing that really made sense to me.  Again, it could just be that they‘re starting from ground zero, then they said we need to get in all the most important pieces of evidence. 

CROCKER SNYDER:  Well, if you‘re asking me my opinion, I have to agree with Mickey.  We really don‘t know.  I think your point is a perfectly reasonable one, but you know, in a long trial, jurors almost always ask for most of the significant evidence and they do it fairly early on.  So I‘m not surprised about anything, but I don‘t think we can know what it means.  Sorry.

ABRAMS:  Dean Johnson...

(CROSSTALK)

HOROWITZ:  ... has to be right. 

ABRAMS:  Dean...

HOROWITZ:  Dan, you have to be right because...

ABRAMS:  Go ahead Daniel.  Daniel, go ahead.

HOROWITZ:  ... you cannot prove—you can‘t prove that Scott Peterson killed Laci unless you prove he premeditated it.  There‘s really no evidence that Scott killed her, absent all this planning material.  So they‘re looking at both premeditation and did he do it at the same time?  So it is very significant.  It shows you that they‘re focusing right in on Scott. 

JOHNSON:  No, actually I have a very different take on it...

ABRAMS:  But Dean...

(CROSSTALK)

ABRAMS:  But Dean—all right, Dean.  Go ahead. 

JOHNSON:  No, ask the question, Dan.  Go ahead.

ABRAMS:  Well I was just going to say that what Daniel Horowitz is suggesting is that you can‘t find him guilty without believing it was premeditated, but these jurors could easily say to themselves look, the evidence we heard about premeditation wasn‘t that convincing.  We weren‘t certain about the anchors.  We weren‘t certain about why he bought the boat, about whether Laci knew about the boat, but we are certain that he killed his wife.  And as a result they could easily...

(CROSSTALK)

ABRAMS:  ... find him guilty of second-degree murder. 

JOHNSON:  Exactly...

(CROSSTALK)

JOHNSON:  Now, wait a minute...

(CROSSTALK)

ABRAMS:  Dean, Dean, Dean, Dean...

(CROSSTALK)

JOHNSON:  ... let me answer the question, OK...

ABRAMS:  ... Dean.  Go ahead, Dean...

JOHNSON:  You‘re exactly right, Dan, and that‘s something that Dan Horowitz has been missing all along is that the premeditation evidence in this case is not that great.  It‘s pretty good, but not that great.  The jury could very easily have a reasonable doubt about the premeditation evidence, still say Scott Peterson killed Laci.  And I think what we‘re seeing here is that this jury is very systematically taking a chronological approach to this evidence. 

They started in the Peterson residence.  They have now gotten Laci out of the Peterson residence, looked at the boat.  They‘re now looking at the tide charts, debris at the recovery site, and so on, being very systematic about it.  The fact that they‘ve even gotten to the boat is bad news for the defense. 

And what they‘re doing along is they‘re taking each of those points that Mark Geragos has laid out as something that would raise reasonable doubt.  They‘re examining them for the benefit of those jurors who may have a reasonable doubt, and they‘re either resolving those issues or not, but they‘re doing it in a very systematic and chronological way. 

HOROWITZ:  But you‘re missing the point Dean.  Without premeditation you don‘t know how he killed her.  You don‘t know if it was an accident, in the heat of passion, whether he wanted to murder her.  Without premeditation, all you have is her body was dumped by him in the bay...

JOHNSON:  Wrong...

HOROWITZ:  ... and nothing in between and that‘s why...

ABRAMS:  No, that‘s not true.

(CROSSTALK)

ABRAMS:  That‘s not true. 

JOHNSON:  What you‘ve got is an unlawful...

(CROSSTALK)

JOHNSON:  ... intentional killing or a second-degree murder...

(CROSSTALK)

UNIDENTIFIED MALE:  Can I ask...

(CROSSTALK)

ABRAMS:  I‘ll tell you...

UNIDENTIFIED MALE:  I just want to ask Dean...

ABRAMS:  Daniel, the bottom line is—go ahead, you can ask Dean a quick question and then I‘ve got to ask Justin Falconer.  Go ahead.

FALCONER:  I‘m asking Dean.  If there‘s no premeditation, what is there?  We don‘t know how she died.  They can‘t tell us where she died.  They don‘t know.  If this whole case has been speculation, even the premeditation is speculation.  They have nothing else other than the fact that she did wash up where she did and that‘s the only thing they had...

ABRAMS:  Number 10 -- hang on.  All right, I‘m going to answer that question...

UNIDENTIFIED MALE:  What you have is...

ABRAMS:  I‘m going—number 10 here...

(CROSSTALK)

ABRAMS:  Let‘s put up full screen number 10. 

JOHNSON:  ... one piece of evidence that shows that that was true. 

ABRAMS:  And beyond that, what about this?  November 20, he meets Amber Frey.  December 2, the second date with Amber Frey.  December 6, her best friend confronts Scott about being married.  He says I lost my wife.  The next day he calls about boats for sale and researches the tidal currents in the San Francisco Bay, and December 9, he buys a boat with $1,400 cash.  Now, whether you believe that‘s dispositive or not Justin Falconer...

(CROSSTALK)

ABRAMS:  ... that is not no evidence. 

FALCONER:  No, Dan, you know what, that‘s ridiculous.  If you think about—look at where this guy‘s life was, OK.  He had a job, had a beautiful wife with a baby on the way, not to mention the fact that she was about to inherit a lot of money.  Now he just met this woman.  She went to bed with him on the first night.  This is not a challenge.  This is a side salad.  This is a mistress. 

(CROSSTALK)

FALCONER:  This is his idea of fun on the side. 

(CROSSTALK)

FALCONER:  That‘s all that was. 

ABRAMS:  All I can say...

CROCKER SNYDER:  Boy Dan...

ABRAMS:  ... every time I hear Justin‘s explanations...

CROCKER SNYDER:  Wow.

ABRAMS:  Every time I hear Justin‘s explanations, I say those prosecutors are thanking their lucky stars that our friend Justin Falconer is not on that jury anymore. 

SHERMAN:  And Dan, I‘m saving up to hire Jo-Ellan Dimitrius...

(CROSSTALK)

SHERMAN:  I‘m saving...

ABRAMS:  Yes...

SHERMAN:  ... I‘m putting money away to hire Jo-Ellan Dimitrius my next trial I‘ve got to tell you...

(CROSSTALK)

SHERMAN:  One thing...

(CROSSTALK)

SHERMAN:  ... you‘ve got two very sharp lawyers out there who have been in the trial and if those two guys can‘t agree on premeditation, how do we expect the jurors inside to agree? 

CROCKER SNYDER:  But you know...

ABRAMS:  Leslie gets the final word. 

CROCKER SNYDER:  OK.  I think what the jury is going to focus on first, not that any of us really knows, is did Scott Peterson murder his wife and unborn child?  Not the premeditation, not the technical aspect, but can they even agree that he murdered her?  And frankly...

ABRAMS:  Yes.

CROCKER SNYDER:  ... to offset Justin Falconer, who is the most unfair juror, or former  -- thank God...

UNIDENTIFIED MALE:  Wow.

CROCKER SNYDER:  ... former juror I have ever heard, I want to say...

UNIDENTIFIED MALE:  Wow.

CROCKER SNYDER:  ... that I sure as hell hope they can reach the reasonable and only...

UNIDENTIFIED MALE:  Leslie...

CROCKER SNYDER:  ... logical conclusion. 

ABRAMS:  Leslie, I love it when I have a theory about what the juries are doing, we have no idea.  But then you come up with theories about what the juries are doing.   

CROCKER SNYDER:  No, I‘m not saying...

ABRAMS:  I love it.

CROCKER SNYDER:  Hey, I didn‘t—here I‘m sure you‘re...

ABRAMS:  I‘m just kidding...

CROCKER SNYDER:  ... more right than I am. 

ABRAMS:  All right.  Justin Falconer, Mickey Sherman, Judge Leslie Crocker Snyder, Dean Johnson, Daniel Horowitz, thanks. 

UNIDENTIFIED MALE:  Thank you.

ABRAMS:  And the jury is still in there.  We‘re going to get a late update on what is happening in a moment. 

Plus, in a handwritten resignation letter to President Bush, Attorney General John Ashcroft said—quote—“the objective of securing the safety of Americans from crime and terror has been achieved.”  Who will succeed him?  We‘ll talk to someone who used to work with John Ashcroft about why he stepped down and who may be next. 

(COMMERCIAL BREAK)

ABRAMS:  We‘ve got more breaking news to report to you, this time from Washington, where the first resignations of President Bush‘s cabinet have been announced.  The first to go include Commerce Secretary Don Evans and one of the most controversial members of the first George W. Bush administration, Attorney General John Ashcroft. 

In his resignation letter Ashcroft told the president—quote—“the objective of securing the safety of Americans from crime and terror has been achieved.  Americans have been spared the violence and savagery of terrorist attack on our soil since September 11, 2001.”  Attorney General Ashcroft has been criticized for telling Congress that administration critics—quote—“aided terrorists and eroded national resolve,” and for portions of the anti Patriot Act, which some say stepped on civil liberties in part, but he had broad public support after 9/11, which he used to change priorities at the Department of Justice from building cases and winning trials to stopping terror cells before they could strike. 

For more on what John Ashcroft‘s departure could mean and why he left, look ahead to maybe some possible successors, we are joined by Viet Dinh, former assistant attorney general for the Office of Legal Policy under Mr.  Ashcroft and a law professor at Georgetown University. 

Good to see you again.  All right.  Bottom line, why did John Ashcroft step down? 

VIET DINH, FORMER ASST. ATTORNEY GENERAL:  I think he‘s tired and he has accomplished his mission.  It is no secret that and not a coincidence that his chief lieutenants, Larry Thompson, Mike Chertoff, myself and Ralph Boyd, among others resigned last summer.  You know we were simply burned out of the incredible responsibility that was put upon the Department of Justice after 9/11. 

I think that he has stayed for an extra year beyond that only speaks to his fortitude and his commitment to service.  Now that we have seen three years where not another American life has been lost to terrorism on American soil, he can claim that he‘s discharged the awesome responsibility that the president hoisted upon him after 9/11, which is very simply...

(CROSSTALK)

DINH:  ... to make sure this does not happen again. 

ABRAMS:  Let‘s assume for a minute everything you say is right on.  Is there a level of arrogance though associated with saying that we‘ve accomplished our goals?  Basically suggesting that we‘ve won, it sounds like, the war on terror? 

DINH:  No, the war on terror is a continuing war.  But I think that what has been accomplished is the very simple charge that the president gave to the attorney general after 9/11.  And he said to him very simply, John, you make sure this does not happen again.  And I think John Ashcroft has done an admirable job of ensuring that not another American life has been lost on American soil in the last three years. 

The work continues to go on.  The hundreds and thousands of men and women in law enforcement continue to carry out that charge, but I think that John Ashcroft, perhaps the most effective and powerful attorney general in history, in light of the circumstances, has stood up to the criticism and achieved that which a lot of people did not think he could achieve and against a whole lot of odds. 

ABRAMS:  So you think that there would have been other deaths by terrorism on American soil if John Ashcroft had not been the attorney general? 

DINH:  I do not think that we can engage in counter factual history like that, but we do know from published reports that September 11 was conceived as only the first of multiple phases of strikes against American interests on American soil and elsewhere.  I think that John Ashcroft supported by the hundreds and thousands of men and women in law enforcement has set a very clear tone, that we will...

ABRAMS:  Yes.

DINH:  ... take the battle to the terrorists.  We will prevent terrorism before it happens.  Whether you agree or disagree with his strategy, I think he sets an example of clear organizational change in a time of significant crisis. 

ABRAMS:  Yes.  Look, example is one thing.  It‘s hard—you know, that‘s one thing.  But to suggest that thanks to him there haven‘t been attacks on American soil, it seems to me is a...

(CROSSTALK)

ABRAMS:  ... you know a bit grandiose. 

DINH:  I didn‘t mean to say that, Dan.  I think it‘s not only thanks to him, but also thanks to the incredible efforts of a whole lot of people.  But I think that those efforts would have borne less fruit had there not been clear resolve at the top and great organizational change signal from John Ashcroft as an effective leader.  And I think for that...

ABRAMS:  Very...

DINH:  ... we all have him to thank for.

ABRAMS:  Very quickly, Viet Dinh, these possible candidates.  Larry Thompson, Marc Racicot, James Comey, Frank Keating, John Danforth, Alberto Gonzales, you got a favorite among that group? 

DINH:  I don‘t have a favorite among that group, but I do think that the president‘s decision would depend on selecting an individual who has a clear national presence and one who has proven experience in counterterrorism and criminal law...

ABRAMS:  Yes.

DINH:  ... because that is what the Department of Justice needs at this time. 

ABRAMS:  Rudy Giuliani says he‘s out of the running.  Viet Dinh...

(CROSSTALK)

ABRAMS:  ... always great to have you on the program.  Yes...

DINH:  Thank you so much.

ABRAMS:  Good to see you again.  Thanks a lot. 

DINH:  Appreciate it Dan.

ABRAMS:  Coming up, a late update on what is going on behind me in the Scott Peterson trial. 

And your e-mails—one of you with something to tell the jurors about Scott Peterson‘s boat and how he could have used it to dump a body in the bay. 

(COMMERCIAL BREAK)

ABRAMS:  A lot of news to report in the Scott Peterson case.  We‘ll have the very latest in a moment.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back in front of the courthouse of the Scott Peterson trial where a juror was dismissed today.  An alternate replaced her and they are deliberating.  Once again, MSNBC‘s Jennifer London has just left the courthouse and she‘s got the latest.  Hi Jennifer.

JENNIFER LONDON, MSNBC CORRESPONDENT:  Hi Dan.  As you mentioned, I did just walk out of the courthouse and I can tell you, Dan, it is all quiet.  There are a couple of reporters inside the courtroom, a couple of bailiffs.  No sign of the prosecution.

We did see the defense team walk out of the courthouse.  A couple of reporters attempted to speak with Mark Geragos.  He simply said look, that would be violating the protective order and he left with a smile.  So it does appear as if the jury is getting back to work and presumably observing the judge‘s instructions to start all over again, given the fact that juror number seven was dismissed—Dan.

ABRAMS:  Jennifer London, thanks very much.  Appreciate it.

(UNINTELLIGIBLE) no “Closing Argument” today, but there is time for “Your Rebuttal”.  We are still waiting for a verdict in the Peterson trial outside the courthouse in Redwood City.

Last night on the program we told you the jurors reexamined the boat prosecutors say Peterson used to dump Laci‘s body in the San Francisco Bay.  Defense has suggested the boat would have capsized if Peterson had thrown her body off the side.

Richard MacKenzie writes, “Would the boat capsize if a body was rolled over the side?  Yes, it probably would.  But any boat owner would know to slide a heavy weighted item over the stern.”

From Johnson City, Tennessee, Bruce Rider Jr.  “Do you know who Steve Irwin is?  He‘s the ‘Crocodile Hunter‘.  Anyone who ever watches him on his TV show knows that he puts 200-pound crocs in and out of the water all the time from his small motor boat, similar to the boat Scott Peterson had with no trouble.”

One of the motives the prosecution has laid out, financial.  Will McCully in Baltimore, Maryland apparently hasn‘t been following the case very closely.  He writes, “We keep hearing that Scott had a financial motive for killing Laci.  You mean he would have been a rich man if he didn‘t have to buy diapers and baby formula twice a week?  Give us a break.”

Will, first of all, my guess is you don‘t have kids.  But regardless, prosecutors presented evidence that Peterson‘s business was failing and that Laci wanted a new car and house, not just diapers.  Furthermore, it was just one of the possible motives cited.  There were others.  Amber Frey, part of it, but again, it‘s not just Amber Frey.  It is not just financial that he wanted to be free. 

From Beaver Falls, Pennsylvania, Jackie Algorri-Peterman asks, “Can you please define the difference between a hung jury and a mistrial?  And if either occurs, can they retry the case?”

Yes and yes.  A mistrial is declared if the jury is hung, same effect.  And yes, they can retry the case and Peterson would almost certainly remain in prison while they prepared for another trial. 

Finally last night, I interviewed Pennsylvania Republican Senator Arlen Specter who angered some powerful conservative groups by saying some prospective Supreme Court nominees might have trouble passing the Senate if they support overturning Roe v. Wade.  I said if the Senate is ever going to work together, it will be people like Arlen Specter who make it happen, respected moderate Republicans. 

Jack Danko in Grosse Pointe Park, Michigan doesn‘t want any harmony.  “You have no idea what Republicans in the red states think makes a good Republican.  Do you remember how the majority of this country just voted?  It was not for moderation.  Middle of the roaders do get run over.”

First of all, I said nothing about what makes a good Republican.  I was talking about what makes a good citizen and a good senator.  Republican moderates are the middle in the Senate.  The majority in this country did not vote against moderation as far as I heard.  Moderate Republicans—he‘s a Republican. 

Anyway, your e-mails abramsreport—one word -- @msnbc.com.  We go through them at the end of the show.  I should tell you the jury is done deliberating for the day.  It looks like it could be a while now that they have to start all over. 

A reminder, we have our blawg “Sidebar”.  It‘s the blawg—b-l-a-w-g about justice and you can get to it through our Web site, abramsreport.msnbc.com.  Click on “Sidebar”.  You‘ll hear from some of your favorite lawyers, some of our staff and from me. 

Always sign up to get our daily newsletter as well.  You‘ll be the first to know about the stories we‘re covering and so you can be the envy of all your friends. 

Coming up next, “HARDBALL” with Chris Matthews.  Chris talks to General Norman Schwarzkopf.  Thanks for watching.  I‘ll see you tomorrow. 

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

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