updated 11/11/2004 10:59:46 AM ET 2004-11-11T15:59:46

Guest: Gloria Allred, Dean Johnson, Sandy Marks, Mercedes Colwin, Daniel

Horowitz, Justin Falconer

ANNOUNCER:  This is an MSNBC special presentation.

DAN ABRAMS, HOST:  Coming up, a special late edition of the program, live from outside the courthouse at the Scott Peterson trial, where the jury foreman has been dismissed from the case.  It seems to be juror chaos.  After dismissing a second juror in as many days, Judge Delucchi calls attorneys from both sides and a lead investigator into chambers again, leaving many to wonder whether there are more problems on the horizon.

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.  Might jurors see it?  And how could that affect the case?

Plus, now there‘s a third juror No. 5.  We talked with the first one.  He‘s got a strong opinion about which way the new jury foreperson may be leaning.

A special edition of the program about justice starts now.

Hi, everyone.  Welcome to this special edition of the program.  We are live in front of the courthouse in Redwood City at the Scott Peterson trial, where it is starting to feel like an episode of “Survivor,” with jurors developing alliances in an effort to save themselves and get someone else kicked off the island.

For the second day in a row, a juror has been dropped and replaced by an alternate, clearly the result of a hard-core battle and those who like to tattle.  In theory, that means that jurors have to start deliberations from the beginning again, ten frustrated jurors who began deliberating six days ago, joined by two jurors who joined them in the last couple of days.

The latest juror to go, over defense objections this time, Juror No.  5, the foreman in the case.  A doctor and lawyer, he filled 12 notebooks of information during the trial, those notes now just his private reflections on the case.  His replacement?  Alternate juror No. 3, a firefighter and paramedic.  Courtroom observers say he seemed bored at times during testimony, even sitting back and rolling his eyes when prosecutors played back tapes of Scott Peterson‘s wiretapped conversations with girlfriend Amber Frey.

Another juror dismissed from the case thinks the new foreman could be good for the defense.

(BEGIN VIDEO CLIP)

JUSTIN FALCONER, DISMISSED PETERSON JUROR:  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 was a lot of times we looked at each other, like, Why—you know, Why did we just see that?  You know, Why—why is Geragos turning all these people into, like, defense witnesses?

(END VIDEO CLIP)

ABRAMS:  Then again, that former juror seems to think everything is good for the defense.  He‘ll join us later so everyone can beat up on him again.

Today‘s shake-up means there are only three alternates left.  Judge Alfred Delucchi took time to remind jurors again of something he told them when they began deliberations.

(BEGIN VIDEO CLIP)

JUDGE 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 discus facts as to which there is no evidence.

(END VIDEO CLIP)

ABRAMS:  So where does this leave the jury?  My take?  I‘ll say it again.  I fear this will be a hung jury.  But all the day‘s events seem to help the defense.  I say this is good news for the defense.

My panel, former San Mateo County prosecutor Dean Johnson, criminal defense attorneys Daniel Horowitz and Mercedes Colwin.  And Amber Frey‘s attorney, Gloria Allred, joins us.

All right, Gloria, let me start with you.  I say that this is all good news for the defense, that Mark Geragos‘s team, even though they objected to this juror leaving, I think that they‘re all smiles tonight.  Do you agree?

GLORIA ALLRED, AMBER FREY‘S ATTORNEY:   Well, not necessarily.  And I‘ll tell you why, Dan.  Because after all, the prosecution liked this juror enough to allow him on the jury.  This juror is a paramedic, a firefighter, and therefore, often paramedics...

ABRAMS:  That doesn‘t mean they got it right.

ALLRED:  ... and firefighters are considered to be—no, but it—but often...

ABRAMS:  That doesn‘t mean they got it right.

ALLRED:  ... it means that they would tend to—that they would tend to side with law enforcement.  Often, that‘s what it means.  Of course, the defense also wanted this juror.  They could have also challenged him, and they didn‘t.  Maybe that‘s because his captain apparently had said to him that he thought Scott Peterson was innocent.

So we don‘t know what this means.  It does change the dynamic of the jury.  Maybe they‘ll have a different process that they involve themselves in, in deliberating and trying to reach a verdict.  We‘ll have to see.

ABRAMS:  Yes, I mean, look, who knows, Daniel Horowitz.  And look, I often talk about defense spin.  I love Gloria Allred, but that seems me to be prosecution spin.  Bottom line here is that I think you have to say that when you‘re talking about a jury falling apart, with people telling on each other and people getting kicked off the jury, sure, this still might be a conviction, but prosecutors have to be sleeping very poorly tonight.

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  Oh, yes, Dan.  I mean, these jurors are flipping around like bowling pins.  And a prosecutor needs one juror.  They need to meld 12 individuals into one mind.  The defense just wants chaos, and they‘re getting chaos over and over again.  I mean, this doctor obviously was so rigid and nitpicky, he took everybody through six days of deliberations and accomplished almost nothing.  The leader of the opposition had to be this juror No. 6, the fireman, the man who was in such a rush to get things done.  He couldn‘t stand half of the prosecution case, so he rolled his eyes all the time.  It‘s just remarkable.

ABRAMS:  Dean Johnson, bad day for the prosecutors?

DEAN JOHNSON, FORMER SAN MATEO COUNTY PROSECUTOR:  Yes, I think so.  And it‘s not so much that the dynamics of this jury have shifted towards the defense, which I think they have slightly, but it‘s the structure of this jury now.  Study after study shows that you get a jury that makes a decision when you have a strong leader.  Juror No. 5, who was dismissed today, was the strong leader.  He was taking this jury towards a decision.  I think that decision was going to be a conviction.

Now the overwhelming probability is that this is going to be a hung jury.  Usually, defense attorneys consider a hang to go in the win column for them.  I don‘t know if, in the long term, it‘s going to be true because, after all, there‘s a retrial, and the old courthouse wisdom, the prosecution always wins a retrial.

ABRAMS:  Mercedes Colwin, you ever seen anything like this, where you have in the middle of deliberations one juror dismissed, another juror dismissed, discussions at the end of the day today, who knows about what?

MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY:  Nothing like this at all, Dan, and I‘ve been practicing a while.  I‘m pretty surprised that this is happening, especially after five-and-a-half months that we would have this chaos.  And I think it‘s a loss for the defense, frankly, that we lost juror No. 5 because you need a really meticulous person to do point by counterpoint of each of those critical areas that we‘ve talked about repeatedly—the area about the baby, the area of the timing, and all of those areas that—it‘s the defense, actually, benefit to go through it very meticulously.  Now we‘ve lost that person, I think it‘s loss for the defense.

(CROSSTALK)

ABRAMS:  Hang on one sec.  Hang on one sec.  Sandy Marks spends his life examining juries, studying juries.  Sandy, good to see you again.  All right, so...

SANDY MARKS, JURY CONSULTANT:  Good, Dan.  How are you?

ABRAMS:  ... what do we make of this?  This has got to be bad news.  I mean, again, it doesn‘t mean that the prosecution loses, but if you‘re evaluating the situation today, you‘ve got to say that the prosecutors would have rather been where they were yesterday and certainly the day before.

MARKS:  No doubt about it.  This was a terrible blow for the prosecution, and I think, at best, what we have here now is a hung jury.  I mean, there‘s just too much dissension and confusion going on with these 12 people right now.

(CROSSTALK)

ABRAMS:  Go ahead, Mercedes.

COLWIN:  I‘m sorry.  No, I was going to say the prosecutors were gleeful yesterday because with juror No. 7, who had already said, Well, I don‘t see a motive for this horrendous crime, and frankly, once I make up my mind, no one‘s going to be able to change it—so here‘s someone that already walked in from voir dire already suspecting that, Hey, I don‘t see it.  I don‘t see an issue here.  I don‘t see that Peterson‘s guilty.

(CROSSTALK)

ABRAMS:  Gloria—is it possible, Gloria, that these prosecutors did not do a great job in jury selection?  They didn‘t listen to their prosecution jury expert enough?

ALLRED:  Well, that‘s the kind of thing we‘re going to talk about when there is a result.  I mean, if there‘s a verdict of acquittal, people will probably second guess the prosecution.  If there‘s a verdict of conviction, then they‘ll second guess the defense.  But I think what this judge is trying to do is protect the integrity of the process and the integrity of the jury.  He‘s doing what he thinks is right in terms of dismissing the jurors.

(CROSSTALK)

COLWIN:  Gloria, it‘s too late for that.  This Judge Delucchi should have shortened this trial...

(CROSSTALK)

COLWIN:  No, this Judge Delucchi should have shortened this trial and not made it five-and-a-half months.  You protect the integrity at the inception of the trial, not six months into it, and suddenly, you‘re dealing with all this chaos.  No, this trial should have been...

(CROSSTALK)

ABRAMS:  Hang on.  One at a time!  Dean Johnson...

(CROSSTALK)

ABRAMS:  ... quickly, Dean Johnson, then I got to take a break.

JOHNSON:  Yes.  I‘m the only person on this panel who‘s ever picked a jury in San Mateo County.  I can tell you something.  One of the great mysteries...

HOROWITZ:  Not true.

JOHNSON:  ... here is that why—why was this jury picked?  I have showed this jury panel to half a dozen defense attorneys in San Mateo County.  They all had the same reaction.  Where was this jury when I was defending a criminal case?  something went wrong here.

ABRAMS:  And Daniel...

JOHNSON:  ... and there‘s been more blows to the prosecution in the last few days.

ABRAMS:  I know.  Daniel Horowitz has also picked juries in San Mateo.

All right, let me take a quick break here.  When we come back, more on the—I‘ll let you get in, Dan.  More on the Peterson case.  And after a 14-foot aluminum boat, same type owned by Scott Peterson, with anchors and a weighted dummy, appear in a lot used by the defense attorney in the last couple of hours, supporters of Laci Peterson‘s family fought back by filling the boat with flowers and candles.  And we talk to the first juror dismissed from the case.  Justin Falconer joins me live.  He seems to have confidence in the new jury foreman, confidence that he sees the case like Justin, not guilty.  Your e-mails—abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  I respond at the end of the show.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

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

SCOTT PETERSON, CHARGED WITH DOUBLE MURDER:  That‘s correct, Your Honor.  I am innocent.

(END VIDEO CLIP)

ABRAMS:  That was a year ago.  We‘re back live in front of the Scott Peterson courthouse, day six of deliberations in Peterson‘s murder trial.  That was him, the man at the center of the deliberations.  The jury deliberating his fate looks a lot different today than when we started, two jurors booted from the case in the past two days, replaced by alternates, and a new foreperson, as well.

An important point that has been overlooked by many—this was, quote, “over the objection of the defense.”  What exactly did that mean, Daniel Horowitz?

HOROWITZ:  Well, I think it was tactical on Geragos‘s part because we‘ve covered in the first part of the show why this is so good for the defense.  The only thing I can think of that might make it not tactical is that this lawyer/doctor was so fastidious that he was drawing this out so much, he might have frustrated the process.  I mean, after a while, the jurors might have said, Stop looking at your 20 notebooks for the facts and talk to us, and he might have just been flipping pages, driving them crazy.  So maybe he was the monkey wrench.

ABRAMS:  Yes, but Mercedes, you don‘t get dismissed from a case for being a jerk or for being too fastidious.  You have to violate a judge‘s order, right?

COLWIN:  Must have been that he wasn‘t really cooperating with the others.  I mean, that‘s what I have heard, that he wasn‘t cooperating.  He wasn‘t having a dialogue with the other jurors.  I mean, this is a deliberative process.  And if you start to break down that communication and you start to hold steadfast on your beliefs and your values, you are going to be booted, if it‘s going to be frustrating the process, ultimately.

ABRAMS:  Really?

COLWIN:  And that‘s what I‘ve heard, that he wasn‘t cooperating with the others and he wasn‘t really speaking with them.

ABRAMS:  Boy, Dean, the bar is pretty high...

(CROSSTALK)

ABRAMS:  Hang on a second.  Hang on a second.  Hang on a second.  The bar is pretty high to throw a juror—you cannot just go to the judge and say, You know what, Judge?  I don‘t like the way they‘re deliberating.  I want off this jury.  A judge is going to say, Sorry!  I mean, you can‘t get off jury service just for saying, I‘m not happy being here, Dean.

JOHNSON:  Yes.  Exactly.  You can‘t just quit because the lessons get hard.  What the judge would need to do in that situation is explain, Look, there‘s one state of mind.  If you believe—if your state of mind is that this case has been proved beyond a reasonable doubt, you vote guilty.  If you have any other state of mind, you vote not guilty.  It‘s really easy to do.  And you can‘t just get off because it‘s getting hard or because you don‘t like it or because you can‘t play well with the other jurors.

That‘s why I think Geragos‘s objection was done with a nudge and a wink.  He was doing that to preserve the issue on appeal, adding to that petri dish of appellate issues that this case has become.

ALLRED:  But there may be many reasons why...

ABRAMS:  Gloria?

ALLRED:  ... this juror...

ABRAMS:  Gloria...

ALLRED:  ... is no longer on the jury.  Maybe he did some independent research.  That‘s what is rumored to have occurred with the last juror who was dismissed from the jury.  We don‘t know the reason because the judge hasn‘t made it public.  But that could be another reason he‘s no longer there.  It may not be a failure to deliberate.

HOROWITZ:  It has to be what Mercedes said because this man‘s a lawyer.  He‘ll lose his license if it‘s for what you just said, Gloria.  And I think he‘s too smart for that.  If he wants off, he knows the words to say to force his way off.  So there had to be some volition on his part to get off this jury.

ALLRED:  Well, I‘m not accusing him of any...

ABRAMS:  But Daniel...

(CROSSTALK)

COLWIN:  Daniel, if he was really a good lawyer, he wouldn‘t have gotten selected.

ABRAMS:  Hang on a second.  Hang on a second.  This is not a guy who‘s practicing law, though.  This is a guy who also has a medical degree.  He works for a company that develops heart medications.  I don‘t know that they‘re going to get rid of him because he didn‘t follow the code of ethics for lawyers.

HOROWITZ:  I know, but the state bar would go after him.  If you violate your oath as a juror, then the state bar is going to be looking to yank your license.  And that has to have value to him, even if he doesn‘t actively practice.

ABRAMS:  Yes.  I don‘t know.  All right.  Everyone‘s going to stay with us because coming up, a fishing boat matching that of Scott Peterson‘s shows up in Redwood City, just a block-and-a-half from the courthouse.  Surprise!  And guess where it‘s parked?  On his attorney‘s parking lot. 

And guess what else?  It has anchors and a weighted dummy?  Oh!  (UNINTELLIGIBLE) Now some supporters of her family are fighting back.  And he was kicked off the trial just three weeks in, but he says he has a good sense of how the shake-up might affect the jury.  Justin Falconer joins us.  Plus: The judge gave the jury specific instructions on how to weigh all the circumstantial evidence.  We‘ll tell you what he said and why that could be crucial in the jury room coming up.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back outside the Redwood City courthouse in the Scott Peterson trial.  In addition to the controversy inside the courtroom today when yet another juror was dropped from the case, there‘s also controversy outside, and it relates to a boat parked in front of the office belonging to Peterson‘s lawyer.  I went there a couple of hours ago.

(BEGIN VIDEOTAPE)

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.  And look what popped up in the last 24 hours, a boat, 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.  Defense says there‘s no way it that could have happened in a boat this size without the boat capsizing.

But look what‘s inside, fake—what look like fake anchors and a very heavily weighted body that seems to be suggesting about the weight that maybe 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)

And tonight, some supporters of Laci Peterson‘s family fought back, gathering for an impromptu vigil in front of the boat, outraged that Peterson‘s attorney, Mark Geragos, they say, put the boat on public display.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  When we first walked up, and, you know, people were first coming in, they were, like, What is this?  Why would he do this?  So—the flowers are awesome, and I hope that—I hope more people come by and bring more flowers.  We need to shift the focus on the fact that this is a devastating situation.  And regardless of who‘s right or wrong or whatever, let‘s—let‘s keep the focus on the fact that there are some murdered people here.

(END VIDEO CLIP)

ABRAMS:  That vigil is still going on just blocks from here right now.  And we‘re told some of the local flower shops are literally running short of flowers because people are calling from all over the country to offer their help, their support, to put more flowers into that boat.  And there are certainly efforts under way to have that boat removed.

I‘m joined again by my legal team.  All right, Mercedes Colwin, very bad taste, do you think, by defense attorney Mark Geragos to do this?

COLWIN:  It‘s stomach-churning.  I can‘t even believe he would do this.  I‘m stunned.  I mean, if—your report‘s obviously correct, it says that they suddenly appeared, and this is during deliberations.  Sure, it‘s not going to affect the jury, but it‘s leaving such a revolting taste in my mouth.  I‘m sure in others‘, as well.  Why would you ever do this?  I mean, so maybe...

ABRAMS:  Gloria Allred...

COLWIN:  ... perhaps your future jurors will look at this, and say, Well, look...

ABRAMS:  I guess.  I don‘t know.

COLWIN:  ... we know what this looked like?

ABRAMS:  Gloria—I apologize for interrupting you.  Gloria...

COLWIN:  I would never have done that.

ABRAMS:  ... Allred, you were outraged by this, as well.

ALLRED:  Yes.  And I can tell you what happened and why the flowers are there, as well, Dan.  Here‘s what happened.  This morning, I was really concerned when I heard about this, and I walked over to see the boat myself.  And as you pointed out, there‘s a dummy in the boat which I—which is filled with rocks.  And on each limb of that dummy is an anchor.  That obviously is supposed to be Laci Peterson‘s body.

I think it‘s disgusting.  I said this morning that I think Mark Geragos should apologize to the family of Laci Peterson.  This is tasteless.  This is sickening.  I said that on Court TV, and many people called me from Court TV and said what they were going to do is, they were going to call the flower shops and they were going to send the flowers over to the boat.  That‘s what happened, and that‘s why the flower shops are out of flowers.  People want to show their support for Laci and for Conner and for Laci‘s family, and that‘s why they‘ve done this.

And I think—is Mark Geragos trying to taint the jury?  Sure, they‘re sequestered, Dan.  We know that.  But they can make calls out.  What if somebody tells them, when they‘re making a telephone call, about this boat?  And what if they find out the defense video was not permitted into evidence?  But they may not know it‘s because it wasn‘t probably done under same or similar circumstances.  What‘s he trying to do here?  It‘s a publicity...

ABRAMS:  I don‘t know.

ALLRED:  ... stunt that‘s backfired on Mark Geragos!

ABRAMS:  Daniel Horowitz, how could any defense attorney do this?  I mean, maybe he‘ll say, You know what?  I didn‘t have a place to put the boat, and we‘d been doing tests with the boat or whatever.  But a block-and-a-half from the courthouse—I mean, at the very least, this is in poor taste, and some people say it actually could get him into trouble.

HOROWITZ:  Yes, Dan, it‘s really like a scarecrow hanging out on the lawn on Halloween.  And the horror of it is when you realize that it‘s a figure of a real human being portrayed in that way.

But I try to think, Mark Geragos is such a fine attorney, what is the rationale behind it?  What message is he sending?  And all I can come up with is he‘s trying to say, We are so right that we‘re no longer going to hide and be obsequious.  We didn‘t do it.  Here‘s the evidence.  Public, press, everyone, look at it because Scott is going home in a week, and we want you to know he‘s innocent.  That‘s the only way...

COLWIN:  Daniel, he can say this...

HOROWITZ:  ... I can rationalize it.

JOHNSON:  Daniel, come on!

COLWIN:  He can say this after the trial is over.  He can say this after the—after the trial‘s over, Geragos could be on every single network in every single show on every single talk radio and say that.  I think it‘s revolting that he would choose this to send that message.  We don‘t need...

(CROSSTALK)

ALLRED:  If he‘s trying to make a statement...

ABRAMS:  All right...

ALLRED:  Dan, if he‘s trying to make...

ABRAMS:  Hang on.

ALLRED:  ... to make a statement, then it‘s a violation possibly of the gag order because he can‘t be making statements!

ABRAMS:  Well, it‘s not a violation of the gag—look, it‘s not a violation of the gag order.

COLWIN:  He hasn‘t spoken.

ABRAMS:  It‘s just horrible, horrible taste.  It‘s horrible taste.  It‘s a horrible choice.  It gets him absolutely nothing except the—you know, the opprobrium of the world.

Anyway, I‘m going to ask everyone to stick around...

MARKS:  Well, that‘s what he‘s getting.

ABRAMS:  ... because—that‘s what he‘s getting.  All right.  Coming up, the first juror No. 5 -- the first juror No. 5 joins me.  He‘ll tell us how the changes on the jury could affect the case, in his mind.  And many have said, Oh, this is just a circumstantial case.  Sure, but that sounds like it works against prosecutors, when actually, the strongest cases are circumstantial.  The judge told them exactly how much that type of evidence can mean—should mean, and we have it on tape.

(COMMERCIAL BREAK)

ABRAMS:  Coming up live from outside the courthouse in Redwood City, California, at the Scott Peterson trial, we‘ll talk to the first juror No.  5.  There have now been three. 

First, the headlines. 

(NEWS BREAK)

ABRAMS:  The first juror to be dismissed from the Scott Peterson trial was Justin Falconer, the original juror No. 5. 

And he comes back for this special edition of the program live from in front of the Redwood City Courthouse.  Peterson jury foreman today dismissed.  And many people thought this was sort of Justin‘s boy, the new foreman of the jury.  He and Justin hanging out all the time while Justin was still on this jury. 

Justin, thanks for coming back on the show. 

All right, so what do we make of this new foreman, who had already been on the jury, moves over to the foreman seat, effectively?  This was your boy.  Is he going to be pro-defense like you? 

JUSTIN FALCONER, FORMER PETERSON JUROR:  He could be.  I wouldn‘t be surprised if he was. 

I think it‘s pretty interesting that, you know, he was probably voted in there after the original juror No. 5 was dismissed.  And I‘ve heard reports that he wanted to be released as soon as Monday.  He was asking to be removed from the jury.  So I think it‘s pretty interesting that he was voted.  Possibly, we could be seeing something new very soon as for a verdict or possibly a hung jury. 

ABRAMS:  And when you say asked to be released, you‘re talking about the juror that was dismissed today, the current foreman, right? 

FALCONER:  Yes, Juror No. 5. 

Apparently, from what I understand, he was actually asked to be dismissed on Monday, and he went back to deliberate and apparently he was released today.  But from what I understand, what I‘ve heard, it was his request.  It wasn‘t anything that he did that violated any rules. 

ABRAMS:  Stick around for one second.

Dean Johnson, you just can‘t ask to be released from a jury.  I keep hearing people say this, but the rules don‘t work this way.  You can‘t just say, I just want to get off the jury for this reason or that reason.  They won‘t let you off. 

(CROSSTALK)

JOHNSON:  Absolutely not.  You have a duty to serve, to deliberate, to decide if you can, to give your individual opinion and to work hard. 

You can‘t just come on and say, look, this is getting too hard.  I don‘t like these people.  I don‘t want to play.  I want off.  If that‘s what really happened—and I have to emphasize we don‘t know that‘s what really happened—then Judge Delucchi made a mistake in letting this guy off.  It probably explains why Mark Geragos would object, because he‘s preserving that issue on appeal.

(CROSSTALK)

ABRAMS:  Hang on a second.  Let me go back to Justin for a second. 

Justin, you told us before—we talked to you earlier—about anecdotes of when you were with this jury who‘s now the foreperson.  And there were times when you wouldn‘t talk about the case, but it became pretty clear to you that you both were kind of rolling your eyes at the prosecution.  Tell me more about that.

FALCONER:  Well, there were just times—and it wasn‘t just us.  It was other people as well. 

But there were times when you just kind of looked at each other and went, you know, what was that all about?  And certain witnesses that came in, they gave their testimony.  It was—we‘re kind of listening to it with a grain of salt, maybe the yoga instructor.  You‘re kind of sitting there looking at each other, like, what the heck is this woman talking about? 

But it was things like that.  And it‘s not an overall case.  It wasn‘t, you know, for everything.  It wasn‘t an umbrella thing, but just or certain aspects of case, when you see something that happens in the courtroom, it just kind of raises an eyebrow and you kind of look at each other and say, well, I think we‘re on the same page. 

(CROSSTALK)

ABRAMS:  Hang on one second. 

Did you ever say anything to each other sort of like, you know, hey, bud, what the heck was that about? 

FALCONER:  No, you kind of do.  You are like, what was that?  And you don‘t go any farther than that. 

But you‘re just kind of—you‘re both shaking your heads and you just kind of know you‘re on the same level.  And then we would go and—and he‘s an avid bicyclist.  And so I assure you that‘s what 90 percent of our conversations were about, bicycling.  But it‘s...

(CROSSTALK)

MARKS:  Yes, but it‘s those other 10 percent. 

(CROSSTALK)

ABRAMS:  Hang on.  Hang on.  Hang on.  Hang on. 

Sandy Marks. 

(CROSSTALK)

ABRAMS:  Go ahead, Sandy.

MARKS:  I‘ve got to tell you, what bothers me here is what Justin is saying. 

And it appears that there was some sort of conversation between jurors, at least in body language or something else, something they‘re not supposed to be doing.  And he just said 90 percent of the time they‘re talking about bike riding.  What are they doing the other 10 percent of the time?  Are they talking about the case?  Are they sending signals back and forth? 

And, really, with all due respect, Justin, how do you know that this juror is pro-defense?  What is there out there?  If so, I‘m going to give you a job. 

COLWIN:  First of all, a nonverbal communication...

(CROSSTALK)

ABRAMS:  Let him respond.  Hang on.  Hang on.  Stop.  Stop.  Stop.

(CROSSTALK)

FALCONER:  I appreciate that.  And I want to hear Mercedes or whoever that was. 

(CROSSTALK)

ABRAMS:  Go ahead, Justin. 

(CROSSTALK)

FALCONER:  We never—I don‘t understand.  You know, you‘re human beings.  What, you never looked at somebody when something happened and just kind of been on the same page? 

We didn‘t talk about it 10 percent of the time.  That‘s ridiculous.  We‘re—you‘re human beings.  We just, you know—you look at something that occurred in the courtroom.  You look at each other like, what was that?  And that would be the end of it.  We would go sit at Jamba Juice and we would people watch for the two hours we had on lunch.  So we never talked about it.  That‘s ridiculous.  And we never did.

ABRAMS:  Did you ever talk about your boy Scott Peterson and, hey, he had a lot of women and, yes, that‘s pretty cool? 

FALCONER:  No.  That was never a topic of conversation. 

(LAUGHTER)

(CROSSTALK)

ABRAMS:  All right. 

Mercedes, Mercedes, Mercedes, I apologize for stopping you before.  Go ahead. 

COLWIN:  No, I‘m just saying that nothing condemns these jurors when they have nonverbal communication. 

In fact, as a trial lawyer, I‘m looking for that nonverbal communication.  I‘m looking for the arms being crossed.  I‘m looking for the rolling of the eyes or leaning back or leaning forward.  And all of those signals that tells me that I‘m losing this juror or this juror is siding with me or something.  Give me something to give me a direction as to where I‘m going.  So none of that is going to be condemned by anyone. 

(CROSSTALK)

JOHNSON:  Mercedes, there‘s a problem here. 

(CROSSTALK)

ALLRED:  Dan, now I‘m getting worried here, because you have a...

(CROSSTALK)

ABRAMS:  Hang on.  Dean Johnson. 

Hang on.

Dean Johnson.

Hang on.

(CROSSTALK)

JOHNSON:  You‘re talking about two different things here, Mercedes.  You are talking about you as a lawyer reading the language of the jurors and you‘re talking about jurors communicating with one another. 

People have to understand the problems that arose in this case are problems that I think could be cured by a new jury instruction which says, hey, all that stuff we read to you, we really mean it.  We really mean, don‘t have a brief conversation with the victim‘s family in the hallway.  We really mean don‘t communicate with one another about this case until you‘re in the jury room and all 12 of you are there.  We‘re not kidding around.  That would solve all of these problems. 

(CROSSTALK)

COLWIN:  There hasn‘t been a spoken word. 

(CROSSTALK)

ABRAMS:  Mercedes, quick response, and then Gloria. 

(CROSSTALK)

ABRAMS:  Hang on.

Mercedes, quick response, and then Gloria. 

COLWIN:  No, there hasn‘t been a spoken word. 

We‘re talking about two individuals looking at each other and just maybe rolling their eyes.  We‘re not talking about any exchange of words here.  We‘re talking about nonverbal communication.  I have yet to see any judge condemn that.  And it‘s absolutely...

(CROSSTALK)

ABRAMS:  Gloria Allred.  Gloria Allred.  Hang on. 

Gloria, Gloria, Gloria, Gloria. 

ALLRED:  Dan, I‘m going to very concerned.

You have got a white male in his 30s, namely Justin Falconer, being palsy-walsy with this new foreperson in the jury, who‘s also a white male in his 30s.  And guess who else is?  Scott Peterson is a white male in his 30s.  I hope they‘re not going to be just bonding with Scott Peterson, thinking they‘re someone clones here and the guys have to stick together in the old boy‘s club.  I hope they‘ll decide this case based on the evidence. 

(CROSSTALK)

ABRAMS:  Justin?

(CROSSTALK)

ABRAMS:  Let me let Justin respond. 

Justin, go ahead.

FALCONER:  You know, that‘s not the case. 

You know, Scott is sitting there in the room, but the things that this guy is being accused of is not anything that would—or anybody that I would be hanging out with.  You‘re taking in the information.  And we‘re not sitting there bonding with Scott Peterson. 

(CROSSTALK)

FALCONER:  We‘re listening to what these jurors are saying—or not jurors, but witnesses are saying.  We‘re sitting there getting all this information.  And occasionally we would roll our eyes or we do something like that. 

This is getting so blown out of proportion.  There was no communication between jurors.  There was nobody talking about the evidence or anything else.  It was just the occasional, what the heck was that?  And that‘s just—that is all there is to it.  So there‘s no bonding. 

(CROSSTALK)

COLWIN:  Dan, can I just add one thing? 

ABRAMS:  All right. 

(CROSSTALK)

COLWIN:  We can‘t blame Justin for all of this. 

ABRAMS:  Sorry. 

COLWIN:  That‘s fine.

ABRAMS:  Let me take a quick break. 

Justin, Justin, good to see you.  Thanks for coming back on the program. 

FALCONER:  No problem.

ABRAMS:  I‘m sure we‘re going to get hundreds more e-mails asking us about it. 

FALCONER:  Thousands now. 

(LAUGHTER)

ABRAMS:  My legal team is going to stay with us. 

Coming up, the prosecution‘s case is largely circumstantial, but so what?  Does that really mean it‘s not a strong case?  The judge gave very specific instructions about what it should mean.  And we‘re going to play it for you coming up.

And our legal team weighs in with their predictions on how, whether, when this trial will come to an end.  How do the day‘s developments affect all that?

Your e-mails, ABRAMSREPORT@MSNBC.com.  Include your name, please, and where you‘re writing from.  I respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Courtroom chaos here at the Scott Peterson case.  Two jurors have been thrown off of the jury deliberating Scott Peterson‘s fate in the last two days.  Each time, the judge told them to start deliberations all over again. 

At this rate, I‘m buying a turkey.  The question, what‘s taking so long?  Could there be too much circumstantial evidence and not enough—quote—“direct evidence” linking Peterson to the crime? 

Well, here‘s what Judge Delucchi told the jurors about that when he instructed them last week. 

(BEGIN VIDEO CLIP)

JUDGE ALFRED DELUCCHI:  A finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only, one, consistent with the theory that the defendant is guilty of a crime, but, two, cannot be reconciled with any other rational conclusion. 

(END VIDEO CLIP)

ABRAMS:  Not really sure what that means, but my take, I‘m sick and tired of hearing people say, but it‘s only a circumstantial case.  Very often, circumstantial cases make the strongest cases.  Blood evidence is circumstantial.  Eyewitness testimony is not.  Eyewitness testimony is also not all that reliable. 

All right, Daniel Horowitz, we heard the judge there instructing the jurors on circumstantial evidence.  This is a circumstantial case.  Put it into English for us.  And there‘s an effort, by the way, in the state of California to put these things into English.  But how are they supposed to evaluate this case when it comes to circumstantial evidence? 

HOROWITZ:  The way I explain it to juries, Dan, is this. 

I say, look, there‘s a lot of facts out there.  You‘re going to put together the facts together to fit a theory that is either a prosecution theory or a defense theory.  In case of a tie, it goes to the defense.  In case of, well, the prosecution is more likely correct, it still goes to the defense, as long as the defense theory is rational. 

So, unless there‘s somebody sitting there with a video camera, what went on, you‘re going to have to draw inferences.  And then I argue that our inferences are rational and make sense.  And I say, look, even if one juror argues my point of view and thinks it‘s rational and you go, I disagree with you, but it makes sense, then you‘re in my camp, you‘re voting not guilty.  That‘s how I do it.

(CROSSTALK)

ALLRED:  Let‘s put circumstantial evidence in plain English. 

ABRAMS:  Go ahead, Gloria.

ALLRED:  Let‘s put circumstantial evidence in plain English. 

And it‘s as simple as this. 

ABRAMS:  Right. 

ALLRED:  If a person wakes up in the morning and they look outside and for miles around the ground is wet, but they didn‘t see it rain, they can decide from the circumstances that it probably did rain. 

They don‘t have to see it rain.  If they do see it rain, that‘s direct evidence.  If they don‘t, but they conclude that it did, that‘s circumstantial.  People judge by circumstantial evidence every day about what happened.  Most of the time, they‘re right. 

(CROSSTALK)

ABRAMS:  See, that‘s the example used in law school all the time.  

That‘s the example used in law schools all the time. 

But the problem is, for me, that I think circumstantial evidence is even stronger than that, because that seems to suggest, well, you know, you really need to have seen—that the rain—the rain is great direct evidence, but so is eyewitness testimony, which is kind of crappy direct evidence. 

Here‘s some of the circumstantial evidence in this case, all right?  There‘s the location of the bodies, his repeated lies and inconsistent statements, confusion over his alibi, the hair in the pliers, cement residue in the warehouse, dog tracking evidence, erratic behavior before his arrest, items with him when he was arrested, the alternate appearance when was arrested. 

Mercedes, that‘s all—quote—“circumstantial evidence,” but it doesn‘t mean it‘s not strong evidence. 

COLWIN:  Right.  Well, I agree with that. 

But there‘s a rational explanation that can then sort of shift this to the defense‘s favor.  We can point by point.  You mentioned the location of the bodies.  Well, no one was able to show definitively that this is where the bodies were dumped.  They didn‘t show where the anchor—they couldn‘t find any of the anchors in the water.  And we‘re talking about 10 feet of water. 

(CROSSTALK)

ABRAMS:  You‘re not going to suggest, Mercedes, you‘re not going to suggest some explanation for where the bodies were found apart from the fact that either Scott Peterson was framed or he did it.  You‘re not going to suggest it might have been coincidence, right?

(CROSSTALK)

COLWIN:  No.  I‘m not going to go down into the satanic cult or the vagrants or any of the other theories that have been floated by Geragos. 

But what I am going to say is that, when they had the hydrologist testify, he said, I‘ve only used particles.  I haven‘t used bodies.  I can‘t really tell you how bodies that are decomposing float in the water.  So we‘re not really...

ABRAMS:  But the bodies were there.

COLWIN:  I understand that

ABRAMS:  But the bodies were there.

(CROSSTALK)

ABRAMS:  We don‘t need to know what the hydrologist said. 

(CROSSTALK)

ABRAMS:  We need to have just looked at what washed up on the bay in San Francisco.

COLWIN:  But, Dan, where the bodies were dumped is still in question.  If you look at that hydrologist during the cross-examination, that was undermined.  But here‘s really—the overall issue...

(CROSSTALK)

ALLRED:  It‘s a commonsense case.  That‘s what the prosecutor said. 

It‘s a common sense case. 

(CROSSTALK)

ABRAMS:  All right, I‘ve got to take a break. 

COLWIN:  It‘s not that simple, though, Gloria. 

(CROSSTALK)

ABRAMS:  Oh, Gloria Allred has got a—Gloria, very quickly.  Gloria, your prediction, by the way.  What‘s going to happen? 

ALLRED:  Well, I don‘t see an acquittal, either a hung jury or a conviction. 

ABRAMS:  All right, Gloria, thanks for joining us. 

The rest of everyone is going to stick around. 

ALLRED:  Thank you. 

ABRAMS:  We‘ll ask them the same question in a minute. 

When I come back, your predictions.  When will deliberations wrap up? 

Will there be a verdict?  What will it be?

And when we were on a couple of hours ago, many of you very upset that we had the former juror No. 5, Justin Falconer, on the show.  It seems like you‘re still mad.  E-mails are still pouring in.  We‘ll read some.

(COMMERCIAL BREAK)

ABRAMS:  All right.  I need quick predictions from all my panelists.

Now that two jurors have been kicked out during the deliberation process, the question, how long will this jury deliberate and what will be the outcome? 

Jury consultant Sandy Marks.

MARKS:  Well, Dan, I think we‘re going to have a hung jury.  There‘s too much animosity, too much dissension.  I don‘t think this panel will ever agree to agree. 

ABRAMS:  Mercedes? 

MARKS:  Hung jury. 

COLWIN:  Get your Santa hat, Dan.  It‘s going to be a while.  It will be a hung jury. 

ABRAMS:  Daniel Horowitz? 

HOROWITZ:  Jury rebellion just before Thanksgiving, then hung jury. 

ABRAMS:  Dean Johnson? 

JOHNSON:  Hung jury, three weeks.  And, Dan, you can eat Thanksgiving dinner at my house. 

(LAUGHTER)

COLWIN:  Only if we‘re invited, Dean. 

(LAUGHTER)

JOHNSON:  You‘re all invited. 

(CROSSTALK)

MARKS:  And, Dan, by the way—by the way, Dan, it‘s going to be on a Friday. 

(CROSSTALK)

ABRAMS:  Hang on one second.

Yes.  See, that‘s what I—see, that‘s what I—I think there will be a hung jury, but I think we‘re going to have it next week.  I don‘t think we‘re going to be here for weeks.  I think these people are going to be so irritated about staying in that hotel sequestered. 

And, Sandy, you‘ve dealt with this in a lot of cases.

MARKS:  Friday.

ABRAMS:  These jurors are going to want to get home, right?

MARKS:  That‘s right.  And I think, this Friday.  They don‘t deliberate tomorrow.  And I think that they‘re going to come back in on Friday and say, Judge, we can‘t agree. 

ABRAMS:  And then right away you think the judge will agree to it? 

The judge is going to send them back a few more times, Sandy.

COLWIN:  I think the judge is going to send them back. 

MARKS:  I don‘t know.

(CROSSTALK)

JOHNSON:  Dan, the judge has already said he is going to send them back at least twice. 

(CROSSTALK)

COLWIN:  Yes. 

(CROSSTALK)

COLWIN:  We‘re talking about millions of dollars to prosecute Peterson.  He is not letting that jury go.  It‘s going to be a couple of weeks.  I‘m teasing you about the Santa hat.  It will be a couple weeks.

(CROSSTALK)

JOHNSON:  The jury is going to come back.  Judge Delucchi is going to give a mini dynamite charge under—more.  They‘re going to come back again.  He‘s going to give the Stone instruction.  And then he‘s going to poll them the third time. 

HOROWITZ:  This judge will commit error in keeping them too long, rather than sending them home too soon. 

MARKS:  That‘s exactly right.

ABRAMS:  I say we will not be here beyond next week, ladies and gentlemen.  You‘ve heard me say it.  I‘m predicting it.  We will not be here beyond next week.  We better not be. 

Dean Johnson, Daniel Horowitz, Mercedes Colwin.

JOHNSON:  You‘re still invited to dinner.  Thanks, Dan.

(LAUGHTER)

ABRAMS:  Sandy Marks.

COLWIN:  Bye, Dan.

ABRAMS:  All right, time now for your rebuttal. 

On our show a couple of hours ago, I read several e-mails from viewers who just don‘t understand why we keep inviting former juror No. 5, Justin Falconer, on the program.  I said he‘s the only person who can really provide us with insight.  Yes, he hasn‘t been into the jury box since June, but he‘s the one who spent time with these jurors. 

Many of you still disagree, e-mails pouring in. 

From Paul in Raleigh, North Carolina: “Please, I beg of you, do not have Justin back.  While you do make a good point that he was there, he was only there for a very short time.  So now all he‘s doing is speculating.  This idiot only demonstrates that people like him should not be allowed to serve on a jury and that there should be some type of competency test to do so and to vote.”

Yikes.

Chris in Arizona: “The reason people do not want you to bring back Justin every day for his opinion is, well, he doesn‘t have one.  His answers are the same to each question about a particular juror.  In one breath, he claims juror X is pro-defense and, in his next breath, the same juror is pro-prosecution.”

I think he says everyone is pro-defense. 

And a few of you think that it was the right thing to do to have him back on the show.

S.L., obviously, has a particular reason to have him back on, says:

“He is fair and balanced with an open mind.”  Yes, right.  “I have followed this case from the very beginning and the state has yet to convince me that Scott Peterson is guilty.  The evidence is all circumstantial.  There are many discrepancies in the prosecution‘s case, too many doubts, not enough real evidence.  When you assume, you make an ‘A‘ out of yourself and others.  The prosecution‘s case wants jurors to speculate and this is not correct.”

Whether you‘re right about the prosecution‘s case or not, the idea that Justin has an open mind—I mean, nice guy, but he‘s made up his mind a long time ago. 

Your e-mails, ABRAMSREPORT—one word -- @MSNBC.com. 

Thanks for watching.  We‘re on at 6:00 p.m. Eastern time, usually.

Next up, “SCARBOROUGH” with Joe Scarborough.  

Thanks for watching.

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

END   

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