updated 11/11/2004 10:48:41 AM ET 2004-11-11T15:48:41

Guest: Dean Johnson, Daniel Horowitz, Howard Varinsky, Justin Falconer, Viveca Novak

DAN ABRAMS, HOST:  Coming up, live from outside the courthouse in the Scott Peterson trial, the jury foreman dismissed from the case.  It seems to be juror chaos. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  For the second time in two days, the judge replaces a jury with an alternate.  This new juror has a direct connection to Laci and Scott.  We talk with a man who knows all of them, the first jury dismissed from the case. 

And the defense team buys a boat that looks exactly like the boat prosecutors say Peterson used to dump Laci‘s body.  And it‘s sitting outside a block and a half away from the courthouse.  Is that a problem? 

Plus, after Attorney General John Ashcroft gave up his post as the country‘s top lawyer, President Bush naming a successor today.  He‘s expected to face some tough questioning during his confirmation hearing.  We‘ll tell you who he is and what kind of questions he will have to answer. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, we are live in Redwood City, where many suspect there is major controversy going on in the jury room behind me.  This morning, another jury in the Scott Peterson case kicked off.  That‘s now two jurors in two days to be removed as this jury continues its deliberations.  And again, we will bring you the latest as soon as it happens.  That‘s why we‘re sitting here. 

The latest to be booted over the objection of the defense, and we‘ll talk about that, juror number five, the foreman in the case, both a doctor and lawyer.  He took copious notes during the trial, amassing 12 notebooks of information.  Those notes now meaningless. 

He‘s replaced with alternate number three and there are only three alternate jurors left.  It also means this jury has to start all over with its deliberations.  Remember, they were in the same situation yesterday.  Juror number seven removed from the case for allegedly performing her own—quote—“research.”  She was replaced with an alternate.  Today‘s jury shakeup prompted the judge to remind jurors of this, what he told them when they began deliberations.

(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. 

(BEGIN VIDEO CLIP)

ABRAMS:  So where does this leave the jury?  “My Take”—I am guessing now more than ever that this jury will not be able to reach a verdict.  That this will be a hung jury.  Who knows?  I‘m just guessing. 

(UNINTELLIGIBLE) panel—former San Mateo County prosecutor Dean Johnson, criminal defense attorney Daniel Horowitz.  And we are going to be joined by one of the nation‘s finest  -- oh he is—one of the finest—nation‘s finest jury consultants...

(CROSSTALK)

ABRAMS:  ... Howard Varinsky just made it.  All right, good to see you Howard.  He worked with the prosecutors to help pick this jury.  And even though the Peterson jury is already on its third juror number five, we have got the original.  Justin Falconer joins us as well. 

All right, so Dean Johnson, first let me just get your take on the fact that we‘ve now had a second juror, the jury foreperson dismissed today. 

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  I think juror number five is probably the least likely person in my mind to ever be dismissed, but he has been.  It‘s difficult to say whether this is good for the defense or the prosecution.  I think in the long run it could be good for the defense, but one thing is for sure—this man was clearly the jury leader.  Without this jury leader, this jury is a rudderless ship.  There‘s chaos.  The chances of a hung jury increase exponentially.

ABRAMS:  You know Daniel, I agree with Dean that this is good for the defense, but why did the defense then object?  It said over the objection of the defense.  Was that just to protect the record in case they appeal? 

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  I think so, Dan.  You know, this juror to me was a pro-prosecution juror, but he also was the fly in the ointment.  This guy had 15, 20 books.  Can you imagine him in the jury room every fact flipping those books with that sour, angry face.  He must have just slowed this six-day deliberation down to what looks to me like a half-day of exhibits being brought forward. 

I think that when Judge Delucchi put this jury through these series of questions and answers to find out if he should be knocked or not, this juror knew all the right answers to either stay on or get off.  He‘s a lawyer.  We all know the right answers to a judge‘s questions, so this guy must have wanted off.  And Geragos, I think, Dan, just to protect the record made his objection. 

ABRAMS:  Howard Varinsky, do you think that prosecutors are pleased with this dismissal?  I mean you must remember giving some advice on this juror one way or another at the beginning of the case. 

HOWARD VARINSKY, PROSECUTION JURY CONSULTANT:  Well, you know, we thought that because he knew medicine and he had an M.D. that he would be good on the DNA and on the science side when it came to Geragos‘, you know, medical experts.  But, you know, just a couple of days ago I was hearing from everybody that this guy was an ultimate defense juror and now I‘m hearing that this is good for the defense that he‘s off.  I don‘t understand how you can have it both ways. 

(CROSSTALK)

ABRAMS:  Wait...

(CROSSTALK)

ABRAMS:  When was this guy...

(CROSSTALK)

ABRAMS:  When was this guy good for the defense, the lawyer?

VARINSKY:  Well, the buzz has been throughout that this guy was good defense.  Never put a lawyer on as a prosecutor.  How many times have we heard that in the last week? 

ABRAMS:  Not on this show.  I don‘t know.  I don‘t—Dean Johnson, have you ever said that? 

(CROSSTALK)

JOHNSON:  No, Howard, in fact, I have said exactly the opposite and I think we‘ve agreed on this that one thing that this juror had going for him was that he was going see right through the testimony of the defense medical expert Dr. March, who went through a meltdown on the stand and that the main thing about this juror is not that he‘s a doctor or a lawyer but that he‘s so meticulous, some people might even say obsessive that he would have no patience...

ABRAMS:  Yes.

JOHNSON:  ... with sloppy medical work and would therefore favor the prosecution.  I‘ve said that all along. 

(CROSSTALK)

ABRAMS:  All right...

VARINSKY:  ... who is replacing him (UNINTELLIGIBLE).

ABRAMS:  Well that‘s what we‘re going to talk about in a minute.  But let me talk to my friend Justin Falconer.  Justin, we received hundreds of e-mails asking us never to have you on the show again...

JUSTIN FALCONER, FORMER PETERSON JUROR #5:  And here I am...

ABRAMS:  ... and yet I persevered and, yes, you are back here, back with us.  All right, so Justin, give us a sense of what you think of the juror who was dismissed and what you think of the replacement juror, juror that was alternate number three.

FALCONER:  You know I‘m shocked.  I never ever would have guessed that he would be gone.  I can‘t imagine him, you know, being who he is with the attorney and knowing the law the way he does, I can‘t imagine him having violated some rule.  I‘m wondering if maybe he wasn‘t burned out.  Maybe he was just, you know, getting sick or something and you know, he just knew how to get off and he wanted off.  But it‘s hard for me to imagine him screwing up so bad that he would be dismissed. 

The new juror is—he‘s a really open-minded guy.  He was very friendly with all the—everybody in the jury room.  He was, you know, quick to talk to people and very open and he seemed very intelligent.  I just learned recently that I guess his son-in-law bought Scott‘s restaurant.  I didn‘t know that before...

ABRAMS:  That‘s right...

FALCONER:  But...

ABRAMS:  Let me lay out a little bit what we know about him.  This is a white man—this is the guy—this is the new juror on this case—white man, in his late 50‘s, early 60‘s.  His—at least at the time of jury selection, his daughter‘s fiance—get this—owns the restaurant now that was started by Scott and Laci.  Literally he bought the restaurant from Scott and Laci. 

He said that he had more contact with Laci than with Scott.  An avid boater, but not familiar with the Berkeley marina.  He said initially he believed there was no direct evidence against Peterson.  He served as a juror on a criminal case that resulted in an acquittal.  Howard Varinsky, that makes me very nervous.  Any juror who served on a criminal case that ended up in an acquittal.

VARINSKY:  Well, I mean, the assumption there is that if you vote acquittal once, you vote acquittal what, always?  I mean that might—that case, there may not have been sufficient evidence.  It may have been mischarged.  I mean who knows what.  But I mean you don‘t see jurors that vote acquittal after acquittal after acquittal, so maybe he got his acquittal out of the way. 

ABRAMS:  Yes...

UNIDENTIFIED MALE:  Dan...

UNIDENTIFIED MALE:  Maybe.

ABRAMS:  Let me ask Justin one more question before the break.  Justin, every development in this case so far you‘ve said is good for the defense.  Is this another one of those days where this is another development that is good for the defense in your mind? 

FALCONER:  It could be.  I think you know, you want people on that jury that are going to be really, you know, really analyze the evidence.  So I‘m surprised.  I can‘t imagine it being a good thing that this  -- that the attorney—the jury foreman got dismissed.  I—you know, I think you want somebody like him to be able to corral in all the rest of the jurors, but you know what, juror number six is a very fair guy, and he‘s, you know, he‘s a fireman, he‘s a team player and I think he‘ll be able to bring all the jurors together. 

ABRAMS:  And he‘s your boy, Justin, isn‘t he? 

FALCONER:  Yes.

ABRAMS:  He is the guy you used to hang out with all the time...

FALCONER:  That‘s who I spent most of my time with.

ABRAMS:  Is he pro-defense like you? 

FALCONER:  You know what?  I don‘t know.  I think we‘re going to find out pretty soon.  I think—you know what?  With him there, I think he‘s going to be able to pull some people together and you know, they might be taking a shot at a verdict pretty soon, whether it be hung or whether it be you know, acquittal or guilty.  I think they might be doing that pretty soon.  He‘s pretty quick.  He doesn‘t—you know, he wants to get this over with.  He‘s wanted to since day one.  So I don‘t—I can‘t imagine them being there for too much longer. 

ABRAMS:  All right.  Let me take a quick break here.  We‘ve got Justin Falconer predicting that we could have a verdict at any time and that‘s why, not because Justin is saying it, but because that‘s what we do—we‘re sitting outside the courthouse waiting.  We will continue to wait.  Any developments, we‘ll bring them to you immediately.

We‘re also going to talk more about the foreman of the jury, the new foreman.  What is going on?  And why was a 14-foot aluminum boat, the same type owned by Scott Peterson, suddenly in a parking lot used by defense attorney Mark Geragos?  An exact replica with anchors in what looked like a weighted dummy.

(BEGIN AUDIOTAPE)

SCOTT PETERSON, ON TRIAL FOR MURDER:  It‘s pretty awesome.  Fireworks there at the Eiffel Tower.  A mass of people playing American pop songs.

(END AUDIOTAPE)

ABRAMS:  Scott Peterson was actually at his wife‘s vigil in Modesto during that phone call to Amber Frey.  Just one of his many lies, but how much weight can the jury give to lies while deliberating?  The judge gave some very strict instructions.  We‘ll talk about it.

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

Stick around.  We‘re waiting.  We‘re waiting. 

(COMMERCIAL BREAK)

ABRAMS:  Lots of news in the Scott Peterson trial.  A juror being dismissed again.  But we‘re waiting for any news from this jury.  Be back in a moment.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

PETERSON:  Knowing that she‘s missing, but walking the dog through there like she would do on most mornings is like a way to experience her right now for me and 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:  Some people want to gag when they see that.  Other people want to cry.  One of the people who cried when she saw that played in court was the new juror number seven who just joined this case yesterday.  She was an alternate before she began deliberating yesterday.  A white woman in her 30‘s, mother of four, worked at a bank.  Her brother has been in and out of prison for drug-related offenses.  Her mother is a drug counselor. 

And now we have another new juror, but not just a new juror.  We‘ve got a new foreperson on this jury.  Dean Johnson, how does it work?  I mean I have been told that maybe they voted for this new foreperson even before the old foreperson was dismissed. 

JOHNSON:  Well, there are all sorts of rumors flying and there‘s a lot of scenarios that could have happened.  Remember today they were supposed to start deliberations all over again.  Maybe there was an election and juror number five just lost.  We don‘t know.  But I must say that I have to disagree with my friend Justin because I‘m very surprised that juror number six out of all these jurors became the jury foreperson. 

He‘s the kind of a guy who describes himself as wanting to ride his bicycle two or three times a day—rather two or three hours a day.  He seems like somebody who is very solitary, doesn‘t seem like a jury leader.  I‘m very surprised.  To me that suggest—that‘s even more clues that this jury is in chaos.  That they‘re looking to somebody who is essentially a solitary guy as their jury foreperson. 

ABRAMS:  Justin.

FALCONER:  Yes, let me—well, you know, he rides his bicycle three, four hours a day.  He‘s a competitive cyclist and he actually does compete in the marathons and everything else that you see for—that bicyclists do, but he‘s also a fireman and he‘s also a paramedic.  I mean this guy is, you know, talk about team player, I mean, got to be to be a fireman and what not.  So you know, he‘s a sharp guy.  And you know like I said he doesn‘t—I don‘t think he‘s going to, you know, take a lot of B.S.  I think he wants to get out of there and I think he wants to get things moving. 

ABRAMS:  Justin, when you guys were hanging out as the—when you were on the jury—I‘m not suggesting you guys talked about the case.  You get a specific instruction, you said you abided by that construction—instruction—but would you guys ever look at each other and kind of roll your eyes or like walk out of court sometime and see something that might indicate to you that he was either sympathetic to Peterson or not? 

FALCONER:  Yes, that did happen, I‘ll say that, and—but that didn‘t just happen between us, but it happened with other jurors as well.  There were a lot of times where we‘d walk into the deliberation room, just look at each other like, what just happened?  Why did we just have to hear that?  And you know, you‘re talking...

ABRAMS:  And that was during—well Justin, let‘s be clear.  That was during the prosecution‘s case...

FALCONER:  Yes.

ABRAMS:  ... that you‘re saying that at times this now jury foreperson would give sort of looks that suggested that what are the prosecutors doing here? 

FALCONER:  Yes, he did, but you know, that‘s not the only time that he did.  I mean I don‘t know how many times I‘ve heard on, you know, your show or other shows, too, that he‘s, you know, been sitting back in his chair, doesn‘t look like he wants to be there, picking his fingernails.  So I mean you know, I think he‘s taken in the evidence.  I think he‘s taken in all the information and I think he‘s doing whatever he‘s doing with it and whether that goes good for the prosecution or defense, I think we‘re going to find out pretty soon. 

ABRAMS:  But when you say that you think that he may be sympathetic to the defense, you are not purely guessing, right? 

FALCONER:  No, you know, I‘m not saying he‘s sympathetic to the defense.  I‘m saying he might not be fully convinced by the prosecution.  That‘s really what I‘m saying.  You know, it depends on, you know, how accurate the readings were coming out of the courtroom.  When I was there, you know, there was—there were a lot of times we looked at each other like, why, you know, why did we just see that?  You know, why is Geragos turning all these people into like defense witnesses...

(CROSSTALK)

FALCONER:  So I...

ABRAMS:  Do you remember specifically—do you remember a specific example where you and the new jury foreperson sort of looked at each other after certain testimony and said, what was the point of that? 

FALCONER:  Let me think.  You know what?  I really can‘t give an example right now.  But you know, there was some times like with the—you know, when the police officers were on the stand, Spurlock and you know, I think it was Letsinger—I believe it was those two.  I think you know, there were some times where we‘re looking at them like why did they come up with that story?  You know, and that‘s when the prosecution had to come out and apologize for their you know, testimony that they had never heard it before.  So I think that was one of the cases, but there were some times where we were just kind of wondering what was going on. 

ABRAMS:  Yes.  You wonder why we have Justin Falconer on the show.  Who else could have provided you with that kind of insight into what the jurors could be thinking.  That is interesting, interesting stuff.  Legal team, Justin, going to stay with us. 

Coming up, a fishing boat matching that of Scott Peterson‘s shows up in Redwood City a block and a half from the courthouse.  It is parked on attorney Mark Geragos‘ property.  I went there to see what‘s going on. 

And the judge warns the jury that any of Peterson‘s lies to his family and friends on TV not enough to prove his guilt, but how big a factor is it?  Our legal team weighs in.

(COMMERCIAL BREAK)

(BEGIN VIDEOTAPE)

ABRAMS:  This is the courthouse where jurors continue to deliberate Scott Peterson‘s fate.  About a block and a half away, defense attorney Mark Geragos has an office.  And this is the parking lot right outside his office.  Look what popped up in the last 24 hours—a boat.  It‘s not just any boat.  It‘s a boat that‘s exactly the same size, same type as the one Scott Peterson owned.  The same boat that prosecutors say he used to dump Laci‘s body.  The defense says there‘s no way that it could have happened in a boat this size without the boat capsizing. 

But look what‘s inside.  Fake—look like fake anchors and a very heavily weighted body that seems to be suggesting about the weight that Laci Peterson‘s body was at the time.  We don‘t know.  We don‘t know if the defense was doing tests on this or what, but it suddenly showed up in the parking lot, maybe for the media‘s sake so we‘d come and look at it and say oh, no way that it could have happened in a boat this size.  Jurors are sequestered, so it would be tough for them to be able to actually see this boat in the parking lot, but no question it‘s causing more controversy here at the courthouse. 

(END VIDEOTAPE)

ABRAMS:  And whether you think it‘s legally inappropriate or not, it certainly sort of disgusting.  I mean the family is here.  It‘s a block away from the courthouse.  The notion that the Rochas might have to walk past that at any point, I think is just awful.  I‘m going to talk about this in a minute.

Let me just tell you one thing.  Right now behind me, everyone has been summoned back into court.  There is something going on in the courthouse behind me.  I don‘t know exactly what is yet.  We are waiting to find out what it is that is happening, but there is some activity going on in the courthouse.  So stick around as we talk about some of these other issues, because we are keeping out eye on the courtroom.  We‘ve got someone blackbaring (ph) us exactly what‘s happening inside.  We‘ll tell you as soon as we know anything more. 

All right.  Daniel Horowitz, I‘ve heard a lot of people saying that they think that Mark Geragos should be sanctioned by the bar for putting—held in contempt for putting the boat out there.  I don‘t think it‘s quite that big a deal, but I think as a purely sort of moral matter, it‘s really gross that he has that boat with what looks like a dummy of a body with anchors in it sitting a block from the courthouse. 

HOROWITZ:  Dan, I agree with you and I—when I looked at it I had the same visceral reaction that you described.  It somehow was—it was creepy to see that makeshift scarecrow of a body knowing that a real human being was dead.  But sitting here during the break I thought about it.  What if Scott Peterson is truly innocent? 

What if he did nothing wrong on the boat?  Doesn‘t he at this point have the right to say, here‘s the boat.  Look for yourself.  It couldn‘t have happened.  I did nothing wrong.  Can‘t he stand up tall and make his statement?  So much of this case...

ABRAMS:  No, not now...

(CROSSTALK)

JOHNSON:  No, absolutely not. 

ABRAMS:  Not now.  Not now, Daniel...

(CROSSTALK)

ABRAMS:  I don‘t think he can do it right now.  I think it is so inappropriate to do it now as the jury is deliberating to suddenly have this boat pop up in the parking lot.  I mean it was a stunt done for the purpose of the media.  I fell for it.  I went there.  I looked at it.  I did my standup there.  But Dean Johnson, I‘ve heard some people say—and I think that this is a little severe, but I‘ve heard some people say they think that Mark Geragos could be sanctioned for this. 

JOHNSON:  Well you know, you can‘t really sanction a lawyer for bad taste.  If you could, there would be a lot of lawyers in trouble.  But this is a classic bad judgment.  You are quite right, Dan.  The victim‘s family goes—hangs around this neighborhood, moves around this neighborhood.  They very well could see it.  I have to look out my office window and see that boat and I‘ll tell you it gives me the creeps.  Bad, bad judgment on the part of my new neighbor, Mark Geragos. 

HOROWITZ:  Dan, did you get the same impression I did that it really was possible when you look at that boat to have had Laci in it and thrown her over?  I think it actually helps the prosecution. 

JOHNSON:  It makes absolutely no difference to the prosecution or the defense.  Scott Peterson‘s right is to be tried in a court of law in evidence, not with some macabre exhibit stuck on a street corner...

ABRAMS:  Yes.

(CROSSTALK)

HOROWITZ:  ... but the jury has looked at this boat. 

(CROSSTALK)

HOROWITZ:  But my point is the jury has looked at this boat and we just did.  And when I looked at the boat today, I‘m asking you, Dan, if you shared that impression.  It looked to me like you could dump a body out of it the way that Scott is accused of doing. 

ABRAMS:  I mean look, you know, I think—look I think it‘s possible.  I certainly think it‘s possible.  I don‘t know.  It‘s a relatively small boat.  People keep talking about throwing the body off the side as if throwing it off the back or the front of the boat wasn‘t an option, which would I think be less likely then to have the boat tip, for example. 

But, you know, I just think that having that out there at this time is really, you know, inappropriate and—but I think that those—I‘ve heard a lot of people screaming for Mark Geragos to be taken away in cuffs and blah, blah, blah, you know, come on.  That‘s a little ridiculous. 

All right.  Listen, here‘s what‘s going on—we‘re waiting to find out what‘s happening in the courtroom behind me.  There is some activity going on at the courthouse.  We are waiting to find out what it is.  I‘m going to bring it to you as soon as we know and I think we‘re going to know something soon.  So, please, stick around. 

Also coming up...

(BEGIN VIDEO CLIP)

PETERSON:  The nursery is ready for him (UNINTELLIGIBLE).

(END VIDEO CLIP)

ABRAMS:  The jury watched Scott Peterson lie time and again in his TV interview, but Judge Delucchi instructed them that that is not enough to find him guilty of murder.  I want to tell you—show you exactly what the judge said.

And President Bush picks his long-time adviser and a former Texas Supreme Court justice to take over for Attorney General John Ashcroft.  Some say he might have a hard time during his Senate confirmation hearing. 

(COMMERCIAL BREAK)

ABRAMS:  There is some activity inside the courthouse.  Some of the lawyers are in chambers, trying to figure out what is happening here at the Scott Peterson trial.  We‘ll bring it to you in a moment.

(NEWS BREAK)

(BEGIN VIDEO CLIP)

DIANE SAWYER, CO-ANCHOR, “GOOD MORNING AMERICA”:   And the last time you saw her was...

PETERSON:  I believe it was about 9:30 that morning.  The reason being we started to watch “Martha Stewart Living” while Laci was working in the kitchen and I left sometime during that. 

(END VIDEO CLIP)

ABRAMS:  Scott Peterson telling what Prosecutor Rick Distaso called a bold-faced lie, one of many that the state says point to Peterson‘s guilt.  We‘ve talked about his lies.  The attorneys confronted them in their closing arguments. 

Let me just stop here for one second, just tell you we‘re waiting to hear anything coming from that courthouse about what is going on right now.  Some of the lawyers are back in chambers.  We‘re continuing to monitor it.  We‘ll bring it to you when we find out.

The question, though, that we were just talking about a minute ago—these lies.  How do they fit into the deliberations?  That‘s the question a lot are asking.  Judge Delucchi instructed the jurors on how to handle inconsistent statements. 

(BEGIN VIDEO CLIP)

DELUCCHI:  If you find that before this trial the defendant made willfully false or deliberately misleading statements concerning the crimes for which he is now being tried, you may consider these statements as a circumstance tending to prove a consciousness of guilt.  However, that conduct is not sufficient by itself to prove guilt and its weight and sufficiency or significance, if any, are for you to decide. 

(END VIDEO CLIP)

ABRAMS:  All right.  So the judge basically saying, it‘s not enough to just have inconsistencies or lies.  Dean Johnson, how do the jurors then weigh this?  I mean a lot of people say, why would he have lied?  Why would he have lied, et cetera?  The judge making it clear you just—you can‘t just rely on the lies. 

JOHNSON:  Well, you weigh it just like you weigh any other circumstantial evidence.  Consciousness of guilt statements are not sufficient in and of themselves.  Flight is not sufficient in and of itself, but you start going down your checklist of all of these things that the jury may consider that may not be sufficient for guilt in and of themselves, eventually you get to that point as every juror does and as I think the jurors might in this case, where you say well, put them all together, yes that is enough.  So they‘re just pieces in the puzzle that the prosecution has tried to put together as a picture of guilt in this case.

ABRAMS:  Let me play this—number 12 here.  This is one of the phone calls that Scott Peterson made to Amber Frey.  It‘s not one of the most substantively important ones, but it is just such a lie.  And this one was December 31, a week after Laci disappears.  He pretends that he‘s not in Modesto, California, that he‘s actually in France.  Here is Monsieur Scott Peterson. 

(BEGIN AUDIOTAPE)

AMBER FREY, SCOTT PETERSON‘S FORMER GIRLFRIEND:  How was your New Year‘s?

PETERSON:  It‘s good.  I‘m just (UNINTELLIGIBLE) everyone‘s in the bar now, so I came out in an alley, a quiet alley.  Isn‘t that nice?

FREY:  Yes, it is.  I can hear you.

(LAUGHTER)

FREY:  Very good.

PETERSON:  It‘s pretty awesome.  Fireworks there at the Eiffel Tower.  A mass of people playing American pop songs. 

(END AUDIOTAPE)

ABRAMS:  Daniel Horowitz, it‘s not surprising that the judge is saying look that in and of itself is not enough to convict. 

HOROWITZ:  Right.  You know, Dan, I remember when that tape was played and the jury had been pretty somber through much of these tapes, but when that was played, they broke out in laughter.  And I felt they were laughing not just from their stomachs, but laughing at Scott Peterson.  He really was belittled in their minds. 

The problem with all of these lies is that it has tainted the case.  You know, when Mark Geragos in closing started with five words—do you hate my client—that really shocked the jury and it really brought to mind that all of these lies made the jury hate Scott.  I think Scott was one of the most hated people in America, but I think that in closing Geragos separated somehow the ink from the water and made the jury focus on the facts, which is why I feel it was a great closing argument. 

ABRAMS:  Howard Varinsky...

(CROSSTALK)

ABRAMS:  ... when you were selecting—hang on one second.  Let me just ask Howard Varinsky.  Howard Varinsky, when you were selecting this jury, how important was it to you how prospective jurors felt about liars? 

VARINSKY:  It was very important.  I mean we didn‘t want anybody that thought it was OK to cheat and lie continuously—I mean one of the things we watched out for actually.  You know, what it is it‘s just another brick in the wall and it also causes jurors not to feel sympathetic toward Scott.  You get some cases where jurors might feel sympathetic to a defendant.  It‘s very hard in this case for any sympathy to be attached to Scott Peterson. 

The one danger, however—you know, it reminds me of Rodney King.  The danger that you risk is desensitizing the jurors to the lies, to the point where, you know, where it‘s just—doesn‘t connect and it just kind of—and it takes the oomph out of it. 

ABRAMS:  Justin Falconer, do you want to go out for a beer with Scott Peterson if he‘s acquitted?

FALCONER:  No.  No, I‘d like to sit down with him and pick his brain for a little while though.  But no, he‘s not the kind of person I‘d be, you know, associated with.  But you know, I agree with your panel.  You know, I mean after you hear these lies over lies over lies, we get the point.  He‘s a liar.  He‘s a jerk.  Now show me something that attaches him to the murder. 

ABRAMS:  All right...

FALCONER:  Give me some evidence. 

(CROSSTALK)

VARINSKY:  I want to know what you‘re going to pick his brain for. 

HOROWITZ:  Actually you know, Dan, there was one thing he said on tape that does tie him to the murder.  I‘m wondering what Justin thinks of it.  On January 6, he tells—he reads the Boris Pasternak love poem, which talks about my hands around your waist.  It‘s supposed to be a loving poem and he explains it to Amber Frey as, you know, hands around your waist, like anchors on people.  I‘m wondering if to Justin that‘s a sign that in Scott‘s mind he‘s thinking he put anchors on Laci.

FALCONER:  You know, pardon me—I think that‘s kind of a stretch.  But...

ABRAMS:  Yes.

FALCONER:  ... you know I...

UNIDENTIFIED MALE:  Freudian metaphor...

FALCONER:  Yes, that would be kind of...

ABRAMS:  Yes, I think it‘s kind of a stretch, too...

(CROSSTALK)

ABRAMS:  I think there‘s a lot better example—Daniel, there‘s lot better examples we‘ve thrown at Justin before and we‘ll continue to throw at him again. 

All right.  Let me thank my panelists—let me also ask some of you—my producers will talk to you in a minute, to stand by because I want to figure out what‘s going on in the courthouse before I let any of you go.  The—both sides are in chambers talking about something and so I‘d like you all to just stick around.  We‘re going to move on for a minute, but we‘re going to have a late report for sure as to what‘s going on in the jury room coming up in a couple of minutes. 

Yesterday we learned John Ashcroft is out as attorney general.  Today President Bush named his replacement.  There could be more controversy.  It‘s coming up. 

(COMMERCIAL BREAK)

ABRAMS:  We‘re waiting to find out why the lawyers are in chambers with the judge here at the Scott Peterson case.  We are continuing to monitor that courtroom.  We‘ll bring you any information as soon as we get it. 

Now yesterday at this time, we left our coverage of the Peterson case to report that one of the Bush administration‘s most controversial members, Attorney General John Ashcroft, was stepping down.  Today we can report that President Bush has named Ashcroft‘s likely successor, White House counsel Alberto Gonzales.  And while he‘s not as big a critics‘ target as Ashcroft, Gonzales has come under fire for his role in shaping some important legal policy. 

My pal White House correspondent David Gregory has the story. 

(BEGIN VIDEOTAPE)

DAVID GREGORY, NBC WHITE HOUSE CORRESPONDENT (voice-over):  Acting quickly to elevate his White House counsel to a more prominent position in the war on terror, the president today credited Gonzales for shaping many of the policies used in that fight. 

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  Policies designed to protect the security of all Americans. 

GREGORY:  If confirmed, this son of migrant workers in Texas would be the nation‘s first Hispanic attorney general.  He spoke today of the shared hope within the Hispanic community for an opportunity to succeed. 

ALBERTO GONZALES, ATTORNEY GENERAL NOMINEE:  Just give me a chance to prove myself.  That is a common prayer for those in my community.  Mr. President, thank you for that chance. 

GREGORY:  While Democrats applauded the selection of Gonzales, considered more moderate than his predecessor John Ashcroft, it was his role in reshaping the legal landscape after 9/11 that has made him controversial.  Gonzales advised the president in this 2002 memo that al Qaeda detainees held at Guantanamo Bay, Cuba, did not deserve the same privileges guaranteed under the Geneva Conventions to prisoners of war. 

If the goal is gathering intelligence about future attacks from these prisoners, he wrote, this new paradigm renders obsolete Geneva‘s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.

Critics charged that legal judgment and other administration positions on the treatment of prisoners paved the way for prisoner abuses at Abu Ghraib in Iraq.  Democrats say Gonzales will face tough questions. 

SEN. PATRICK LEAHY (D-VT), JUDICIARY COMMITTEE:  A number of the policies taken by the administration have been overturned by the federal courts.  What are going to be your new policies and that becomes a legitimate question.

GREGORY (on camera):  Gonzales had been considered a leading contender for the Supreme Court, despite objections from conservatives over his moderate stands on some social issues.  But as the attorney general nominee, both Republicans and Democrats predict his confirmation. 

David Gregory, NBC News, the White House. 

(END VIDEOTAPE)

ABRAMS:  All right.  So the question everyone is asking—will congressional Democrats, I‘m assuming not Republicans, try and stop the nomination of the man who offered legal justifications for interrogation techniques that critics insist are torture?  And how might he change Justice Department policy? 

For more I‘m joined by “TIME” Magazine justice correspondent Viveca Novak.  Thanks very much for coming on the program.

VIVECA NOVAK, “TIME” MAGAZINE JUSTICE CORRESPONDENT:  Good to be with you.

ABRAMS:  Let me start by asking do you think he‘s going to pass? 

NOVAK:  I think he will ultimately.  Yes, after some tough hearings. 

ABRAMS:  And I assume—we were talking about the Supreme Court, David was, that some conservatives would have had a problem with him for the Supreme Court.  Are those same conservatives going to have a problem with him for attorney general? 

NOVAK:  I think not as much, unless—some conservatives may think that he‘s being teed up for the Supreme Court by serving at the Justice Department for a couple of years, but I do think ultimately that conservatives will not oppose him. 

ABRAMS:  And how does policy change, do you think, at the Justice Department if he does pass and becomes the new attorney general? 

NOVAK:  Well, that‘s a good question.  I don‘t think that policy will change very much because you have to remember that the White House counsel‘s office had a very big hand in shaping the policies that the Justice Department was carrying out, treatment of terrorists, detainees, suspected terrorists.  I mean it has been—they‘ve worked hand in glove together.  I think mostly what you will see is a change in tone, because Gonzales is a much calmer, less provocative presence than John Ashcroft. 

ABRAMS:  What exactly—you talk about the various roles and I know that there‘s nothing set in stone that says one department does one thing, another does another thing, but what do you think that the most important effect that the attorney general will—can have will be?  What exactly is the attorney general going to be responsible for meaning as opposed to White House counsel or other positions in the government? 

NOVAK:  Well, I think the attorney general, the Justice Department, is going to have a great deal of effect on how the administration responds to some of these recent court rulings about detainees, about Guantanamo, about whether or not the Geneva Convention applies.  Some of the very issues that Gonzales was so involved in shaping.

And it‘s the Justice Department that is going to have to go to court, defend these policies, appeal them.  There was a ruling just this week that the Justice Department has announced it will appeal on military tribunals.  So that is the primary role of the Justice Department as opposed to the White House counsel‘s office. 

ABRAMS:  Viveca Novak from “TIME” Magazine, thanks very much for coming on the program.

NOVAK:  Good to be with you. 

ABRAMS:  Coming up, we get a report on what is going on behind me at the courthouse at the Scott Peterson trial.  The lawyers have been in chambers with the judge.  That usually means there is something afoot.  The question—what?  We‘re going to get a report.  Coming up.

And I read your e-mails.  Many of you upset with our decision to put former juror Justin Falconer on the air at all. 

Plus, what‘s wrong with this picture?  A jury finds Martha Stewart guilty.  Now she wants her company to pay her legal fees.  It‘s my “Closing Argument”. 

(COMMERCIAL BREAK)

ABRAMS:  We‘ve got news to report in the Scott Peterson case.  We‘ll tell you what it is in just a few seconds.

(COMMERCIAL BREAK)

ABRAMS:  All right.  We‘ve got some news to report to you from the Scott Peterson trial.  MSNBC‘s Jennifer London has just come out of the courthouse.  Jennifer, what do you know? 

JENNIFER LONDON, MSNBC CORRESPONDENT:  Dan, here‘s what I can tell you.  The jury is done for the day.  We were told deliberations are over.  But the courtroom is not closed yet.  We understand from what I saw that the defense team went behind closed doors we believe to meet with Judge Delucchi.

We also saw a member of the prosecution team enter the courtroom.  She chatted very briefly with lead detective Craig Grogan, I‘m sure you remember him, and then she went back into chambers and Grogan followed her.  We‘re also understanding that the court reporter went back into chambers as well.  And I am just hearing that an investigator with the San Mateo District Attorney‘s Office, apparently a very prominent investigator, is also meeting in chambers right now, Dan. 

ABRAMS:  What does all of this mean?  I don‘t know, but I am going to have a special in an hour at 9:00 Eastern Time, 6:00 Pacific Time.  We will have sorted it all out by then.  But don‘t go anywhere. 

My “Closing Argument”—why Martha Stewart has let me down.  During her legal battle, I took the position that while she was guilty of the charges the jury considered, she never would have been charged if she hadn‘t been so famous, if she hadn‘t been Martha Stewart.  And I said it was unfair to compare her case to other high profile corporate scandals because she had acted in her personal capacity, trading for her personal account not as CEO of Martha Stewart Omnimedia.  Well now she‘s asking her company to foot $3.7 million in legal fees. 

I guess I was wrong.  If her company should pay her legal fees, if she‘s going to drag her company into this, then she makes it sound like another case where a company is accused of wrongdoing.  That makes it far more serious to me.  Now, she would say that she only wants to be reimbursed for her defense on one charge, that she tried to boost the company‘s stock by lying, not for the charges that she lied to investigators.  The stock boosting charge eventually dismissed by the judge and rightly so. 

There was no good evidence that her motivation had been to help her company rather than just to help her sell.  After all, when her company‘s stock price tanked, she lost millions, but that‘s the point.  All of her lies were intertwined, as was her defense.  To suggest that 3.7 million was used just to defend that charge alone is ludicrous.  She and her company have agreed to have an independent investigator assess how much the company should pay and the company insists insurance will cover it anyway.  That‘s not an excuse. 

Stewart was targeted, but she was guilty of the charges the jury considered.  If she wants her company to pay her legal fees, then all of us who thought of this as a personal stock trade maybe gave her too much credit. 

All right, I‘ve had my say, now it is time for “Your Rebuttal” as we continue to wait for a possible verdict in the Scott Peterson case, although the jury is now done for the day.  We received hundreds of e-mails saying one thing about last night‘s show, about one of my panelists, Justin Falconer, a former juror in the Peterson case who was dismissed in June and who clearly believes Peterson is not guilty. 

From Boston, Massachusetts, Karen Ann Byars.  “I for the life of me can‘t understand why you keep inviting that Justin, AKA number five, thrown off the jury, close minded, no common sense fool on your show.”

Betty Fleming asks “For a juror who was on the case three to four weeks five months ago, what can he possibly add that has any value?”

From Delaware, Cianni Montoya.  “Please Dan, stop putting on jerky Justin.  He sounds like a complete moron and makes no sense.  His 15 minutes are over.”

Erica in San Diego.  “I have a lot of respect for you, so please, I implore you don‘t demean the intelligence of your viewers with that guy‘s nonsense.”

From Maryland, Jackie Snelson.  “Please say someone canceled at the last minute and he was only—the only available substitute.”

Keara Abel in Stanton Island, New York.  “Hey Dan, here‘s an idea.  How about getting Kato Kaelin and maybe he and Justin can discuss the Scopes trial.”

All right.  Let me say something to all of you.  Look, are all of you suggesting that we should not talk to the one person who can speak out, who spent time with these jurors as a group?  I mean you can hate his point of view.  I take them on all the time.  We shouldn‘t invite on the one former juror when the story is this jury and their relationships?  Come on. 

I mean remember, he even said on this show moments ago that there were reasons that he suspected that now the foreperson might be pro-defense.  It doesn‘t mean you have to accept it, but it‘s interesting.  Come on.  Are you saying we shouldn‘t have him on?  But there was one viewer willing to take on the masses. 

Terry Hart from Glen Burnie, Maryland.  “He was the only one on your show this evening that made real sense.  I think the experts get jealous when that happens.”

I don‘t know.  Your e-mails abramsreport—one word -- @msnbc.com.  We go through them at the end of the show. 

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

And don‘t forget, you can take a quiz also to see just how much you know about the case.  And of course sign up to get our daily newsletter so you can be the first to know about the stories that we are covering. 

Coming up next, “HARDBALL” with Chris Matthews.  And we‘ll be back at 9:00 Eastern Time tonight with a special edition of the program.  We‘re going to be talking about the Peterson case.  We‘re going to figure out what was happening in chambers behind me and tell you what it means. 

I‘ll see you back here in a couple of hours.  Thanks for watching.

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

END   

Copy: Content and programming copyright 2004 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2004 FDCH e-Media, Inc.  (f/k/a Federal Document Clearing House Inc., eMediaMillWorks, Inc.), ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and FDCH e-Media, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

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