updated 11/17/2004 10:12:36 AM ET 2004-11-17T15:12:36

Guest: Daniel Horowitz, Paul Pfingst, Josh Marquis, Ronald Kaplovitz, Timothy Susanin, Raymond Toney

DAN ABRAMS, HOST:  Coming up—is Scott Peterson‘s attorney preparing to ask for a new jury in the penalty phase of the trial?

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Attorney Mark Geragos will be back in court tomorrow.  And it‘s likely he‘ll argue the jury that convicted Peterson is tainted and ask for a new jury to determine whether Peterson will live or die.  Does he have a shot?

Plus...

UNIDENTIFIED FEMALE:  (UNINTELLIGIBLE) push it all the way inside and then (UNINTELLIGIBLE) like this.

ABRAMS:  A woman tells jurors how a confessed serial killer tried to murder her.  That man, Coral Eugene Watts, was about to get out of prison until one of our viewers recognized him in connection with another murder.  Now a jury is deciding whether this killer will stay behind bars for life.

And the military investigates a Marine on tape killing an injured Iraqi fighter in a mosque, but that tells only part of the story.  At the same time, just a block away, a booby-trapped dead body exploded, killing another Marine.  So could this just be self-defense?

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket—there‘s buzz around the courthouse that the defense in the Scott Peterson case is on the offensive again.  Here‘s what we know.  Tomorrow there will be an in-chambers hearing with the lawyers, and it is likely, likely, that Mark Geragos will ask that a different jury hear the penalty phase of this case, in essence saying this panel is tainted.  Now remember, this wouldn‘t be the first time he‘s made this sort of request.  Months before the trial began, he filed a motion saying they needed separate juries to try each phase of the case to even the playing field.

He said—quote—“This can be readily accomplished by either empanelling two separate juries at the outset by selecting a penalty jury later should there be a conviction or perhaps most efficiently by selecting a number of death qualified alternates who will listen to the evidence during the guilt phase and substitute in should a penalty trial be necessary.”

That was then.  Now, he could have new ammunition that jurors were exposed to the crowd, for example, outside the courthouse at Friday‘s verdict.  He may have statements from dismissed jurors.  Maybe the jury talked about the penalty phase during deliberations, even though the judge instructed them not to.

(BEGIN VIDEO CLIP)

HON. ALFRED DELUCCHI, PETERSON TRIAL JUDGE:  In your deliberations, the subject of penalty or punishment is not to be discussed or considered by you.  That is a matter which must not in any way affect your verdict or affect your finding as to the special circumstance alleged in this case. 

OK.

(END VIDEO CLIP)

ABRAMS:  “My Take”—if Mark Geragos has a problem with this jury, he can make a lot of motions, but I think it‘ll be a losing battle.  I don‘t think there‘s any way Judge Delucchi will convene a new jury to hear the penalty phase of this case.

Joining me now, California criminal defense attorney Daniel Horowitz, MSNBC legal analyst and former San Diego county D.A. Paul Pfingst, and co-chairman of the Capital Litigation Committee of the National D.A.‘s Association, Joshua Marquis.

All right, Daniel Horowitz, this would be, should we say, expected standard for Mark Geragos to make this request, but in this case it might have a twist.

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  I think it has a twist, Dan, because if our sources are correct, he‘s not seeking to set aside the verdict of jury misconduct finding Scott Peterson guilty, but he‘s saying that something either happened in that jury room, like you said, maybe they discussed penalty, made up their minds prematurely, or something happened when they got out.  This is a new wrinkle.  And I‘ll tell you something, if they have to pick a new penalty phase jury, we‘ve got a three-month jury selection process before we even get to the evidence.

ABRAMS:  All right.  Now, let‘s come back to reality for a moment Daniel.  You don‘t actually think it‘s going to happen, do you?

HOROWITZ:  I think it‘s impossible for it to happen.  It‘s—Judge Delucchi is a man who likes to stick to schedules.  He‘s very good at giving continuances when you need it for substantial purposes, but this seems like another defense motion where he‘ll go, denied.

ABRAMS:  And again, Paul Pfingst, we don‘t know for certain that this is what Mark Geragos is going to do, but it sure makes a lot of sense based on the fact that he had made this request before, and there is going to be a hearing tomorrow, and it seems like, you know, this is one of the only really substantive things he can still do.

PAUL PFINGST, MSNBC LEGAL ANALYST:  Well, there are a couple of reasons for a hearing apart from jury misconduct accusations.  For example, they have to sort of set the stage for next week when the testimony is expected to begin and arrange for who‘s going to call what witnesses and how long it‘s going to take, and there‘s housekeeping to be done.  But to hit your point directly, Dan, one of the troubling parts about a death penalty case in the guilt phase, which the jury just completed, is that it is almost impossible for jurors to sit in a death penalty case and not mention the death penalty and the fact it‘s a death penalty case in a guilt phase, and that violates a judicial instruction, as you just showed, and that is right for a lawyer to come in and say there‘s been jury misconduct.

This jury is tainted.  Give us a new jury.  Those motions are not that uncommon, and they never succeed.  And there‘s no reason it‘s going—to suspect it‘s going to succeed in this case in front of this judge in this trial.

ABRAMS:  And Joshua Marquis, some, though, would say if they‘re violating the judge‘s order—and again, we don‘t know that that happened, but sure wouldn‘t be surprising if someone made allegations that, oh, the jurors made reference to the possible penalty in this case and they‘re not supposed to, we need a new jury—if they did that, how big a deal is it?

JOSH MARQUIS, CLATSOP COUNTY, OR DISTRICT ATTORNEY:  It‘s not a big deal, Dan.  I think your other guests are absolutely right.  This is basically a legal Hail Mary pass by someone who couldn‘t find the time to show up for the verdict himself.  There is a trend among death penalty abolitionists and reformers to say that what we need is two entirely separate juries, but that is something that would have logically had to have been adjudicated before this trial started.

I think—I agree with the other panelists.  I think the likelihood of this happening is virtually nonexistent.  Remember Judge Delucchi said this is going to be over in four days.  If there was a new jury empanelled, we‘d be talking about four months.

ABRAMS:  And what do you think—you know, Josh, you and I have talked about this before, but you know some say it‘s unfair to the defense in cases like this to choose a jury that says at the beginning, I could impose the death penalty because you tend to get a jury that‘s more conservative.

MARQUIS:  Remember, there‘s two sides to that coin, Dan.  The jurors have to say no, I am not so opposed to the death penalty that under no circumstances could I render a guilty verdict knowing that the person might be.  But by the same token, jurors who say, look, I‘m so opposed to the death penalty that I could never render a guilty verdict if the person could face it.  So death—so-called death qualifying works both directions.

(CROSSTALK)

HOROWITZ:  I disagree with that.

ABRAMS:  Yes, I was going to say I bet Daniel Horowitz doesn‘t agree with you.  Go ahead, Daniel.

HOROWITZ:  The reason is that people who are in favor of the death penalty always will say to the judge, but I could still be fair, I‘d want to hear—I mean maybe the guy is a war veteran or rushed into a burning building and saved someone.  So those people who are really almost automatic death stay on.  The people in favor of—who oppose the death penalty always say I never could impose it, even if they killed my own family member, I‘m a Catholic, whatever, and so they get knocked off.  So this proportionately, it knocks off people who are moderate to liberal in their viewpoints.

MARQUIS:  That‘s not my experience.  In fact, in more than one case that I‘ve heard of in this country, there have been basically row jurors who have stayed on specifically because they felt so strongly about the death penalty, they did not fully disclose their feelings...

HOROWITZ:  But that‘s a different topic.  That‘s misconduct.  That‘s not what I‘m saying.  I‘m making a straight-up point.

ABRAMS:  Let me take a quick break here.  Everyone is going to stick around, because coming up—new jury or not, the state of California has only executed 10 people in the last 25 years.  Is it even possible then that Peterson‘s going to join them?

And an admitted serial killer set to get out of prison in over—just over a year for good behavior, but now he is on trial for another murder because one of our viewers saw his face on our show and called the number that we put up.  The jury has the case of Coral Eugene Watts.  Is it still possible one of the worst serial killers ever will go free?

Plus, the Pentagon investigating the killing of an Iraqi rebel fighter in Fallujah after an NBC crew caught the incident on tape.  The Marine is seen shooting the wounded man at close range, but we ask, considering the circumstances, could the shooting be justified?

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up—California has more felons on death row than any other state.  Will Scott Peterson become the new kid on the block?  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  Scott Peterson faces the possibility of a death sentence in a tough state.  You may be surprised to hear that California leads the country with a number of inmates on death row.  Right now as I speak, 637 prisoners on California‘s death row.  But that may be because only 10 people have been executed in the state since 1978 -- the last execution taking place on January 29, 2002.

San Mateo County, where the trial was moved after a change of venue hearing, isn‘t known to be easy on defendants in capital cases, but depends on how you look at it.  The death sentence was last imposed by a judge in 1998, by a jury in ‘94.  Since then, four capital cases resulted in two hung juries and two life sentences.  But in total, over 20 years, from 1983 to 2003, 25 capital cases resulted in 18 death sentences; four of them were change of venue cases, like Scott Peterson‘s.

So with those state and county records, which way does that cut for Peterson?  All right, Josh Marquis, also a D.A. in Oregon there.  Josh, you know—you‘ve studied these numbers, you look at the states to states on the death penalty.  It sounds like what‘s been happening in San Mateo County in particular is that as time passes, jurors have been less willing to impose the death penalty.

MARQUIS:  I don‘t think that‘s it, Dan.  I think what we‘re seeing is you have prosecutors who are making these gateway decisions, becoming more discriminating in the cases that they submit as death eligible, and jurors by the same token are also being more discriminating.  Also, we have to remember that the murder rate in the United States has declined substantially.  So I think we should expect fewer and fewer death sentences.

ABRAMS:  I don‘t know...

MARQUIS:  That‘s not necessarily a reflection on the death penalty.

ABRAMS:  I don‘t know.  I think, Daniel, that Josh is giving too much credit to the D.A.‘s in these cases.

HOROWITZ:  I think so, too, Dan.  You know, certain counties have much more violent murders.  Alameda County, where I‘m from, has a lot of murders to pick from, so when they charge them, they‘re almost always close to the kind of case where it will be death if you lose.  Perhaps, and I don‘t know, in San Mateo, the crimes that they choose to charge as death penalty are more on the borderline.  I see the Scott Peterson case as one where, in the county where I practice primarily, Alameda, never would have been charged as a death penalty case because it‘s just not so different from any other double murder...

ABRAMS:  Yes...

HOROWITZ:  ... as strange as that sounds.

ABRAMS:  You know, Paul Pfingst, I know that people—and we‘ll talk about this in the next block as well—I know people are going to say, oh, this—what‘s worse, they‘re going to say, than killing your wife and her unborn child?  Well, you know, I hate to sort of do this in terms of gradations, but there have been worst crimes.  I mean there have been multiple killings where they‘ve tortured the victims.  There have been people with long criminal histories before they were involved in the killings and tortures of multiple people, et cetera.

PFINGST:  Well, Dan, I think you pointed out before that more capital

·         convicted capital killers facing the death penalty died of natural causes in San Quentin than were executed in the state of California, many more.  So what‘s happened in the state of California is that, in principle, we have the death penalty.  In practice, we very rarely have the death penalty.

And the irony of this is, and it‘s starting to become known, is that jurors are now more willing to give the death penalty generally across the state because they feel it‘s never going to be carried out.  And as a result, the success that defense lawyers have had in delaying the execution of various people on death row has resulted in more people going to death row.  And it‘s sort of the cycle that‘s very difficult to break.  I believe that if juries felt that someone was going to be executed within the next few months, fewer jurors would convict the death penalty than they do now.

ABRAMS:  What about the statistic, 18 of 25 cases...

PFINGST:  San Mateo County, Dan, has had a changing population over the course of that period of time.  I don‘t think it‘s fair to say that the population of San Mateo County today is the same type and demographic and socioeconomic status that it was back in the early days of the 1970‘s or the early 1980‘s and that may account to a great degree for the change.  I was one of those D.A.‘s.

I sent a bunch of people to death row from San Diego County and they‘re all sitting up there waiting.  There is no way that anyone that I sent to death row in the last 10 years is going to be executed within the next 10 years and everybody knows that.  And here, in California, in order to get past the California Supreme Court, then you have to get past the Ninth Circuit Court of Appeals, and that federal court has a very strong tendency to reverse death penalty portions of verdicts and send it back to the state court.

ABRAMS:  Daniel, what about that, that a death sentence is really just a sentence and not death?

HOROWITZ:  I think there‘s a lot of validity to that position.  I feel, though, that there are a lot of problems with the death penalty in the sense that you don‘t have a consistent level of defense attorneys, and some people get a great defense, and others get questionable defenses.  So the Ninth Circuit sort of watching over these sentences and setting a lot of them aside is often sending the message this person really didn‘t get a fair trial.  It‘s not just that they‘re arbitrarily setting aside death sentences...

(CROSSTALK)

HOROWITZ:  Actually, Judge Delucchi...

MARQUIS:  ... Ninth Circuit is overturned about 95 percent of the time by the U.S. Supreme Court on criminal cases...

HOROWITZ:  Well, most of the (UNINTELLIGIBLE) -- most of the time the U.S. Supreme Court says the Ninth Circuit did just fine, we‘re not going to take it up.  It‘s only when they take it up and review it, which is a very, very small fraction that it‘s reversed...

MARQUIS:  And 95 percent of the time they overturn them.

ABRAMS:  Let me take a quick break.  It sounds like we at least agree on the statistics there.  It‘s just a question of how you look at it.  Take a quick break.

When we come back, we‘re going to talk about the factors that come into play that the jury will have to be considering in Scott Peterson‘s case.  And we‘ll go on—we‘ll talk about this whole business about the death penalty is supposed to be reserved for the worst of the worst.  Question, you know, your wife, unborn son, horrible, but the question, should prosecutors have even asked for the death penalty in this case?

Plus, one of our viewers saw this admitted serial killer on a segment we did on the show.  He was getting ready to go free.  Our viewer tipped off authorities, now jurors are deciding whether he should spend the rest of his life behind bars.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Did you ever hit her?  Did you ever injure her?

SCOTT PETERSON, ON TRIAL FOR MURDER:  No, no.  Oh God, no.  Violence towards women is unapproachable.  It is the most disgusting act to me.

(END VIDEO CLIP)

ABRAMS:  All right.  Well, we‘re talking about the Scott Peterson case.  We‘re talking about the sentencing phase of this case.  He‘s now facing the possibility of the death penalty.  We should say that, you know, there may or may not be a hearing about—we were talking earlier about the possibility that Mark Geragos is going to—could ask for a separate jury for the penalty phase, meaning he‘d asked for it before, he might ask for it again.  He also might do it in papers.

I‘m now told that maybe they will not have a formal hearing in court.  But apparently Mark Geragos is in town.  So—all right, sentencing Scott Peterson.  The factors that the jury will consider—nature and circumstance of the crime, presence or absence of prior criminal activity involving violence or threat of violence, presence or absence of prior felony conviction, any other circumstance that extenuates the gravity of the crime even though it is not a legal excuse for it.

There are other factors, Joshua Marquis, but it seems that these are the ones under California law most relevant here.  I still think it‘s a real long shot that Scott Peterson is going to get the death penalty.

MARQUIS:  Well, you never know, because the idea is these are cases that are highly individual.  You said earlier that, well, you know, as these cases go, it‘s not one of the worst.  You can argue it both ways.  You can say someone with Mr. Peterson‘s lack of a criminal record and all the advantages he had, that to commit such a horrific act is even more deserving.  I don‘t think it was inappropriate to at least ask the jury to consider this as a death penalty case.  Now, whether they ultimately give him the death penalty, that‘s a open question.

ABRAMS:  Daniel.

HOROWITZ:  I think it would have saved about four months of taxpayer time picking a jury and doing this penalty phase to charge it just as life without the possibility of parole.  I think they have the two major factors that may push towards death.  It‘s going to be Sharon Rocha statement about how much she is hurt, and the fact that Scott, by lying after the fact, delaying the finding of Laci‘s body, put the family—the Rocha family through so much pain.  That might push some jurors over the edge.  Also, Dan, sources—and I‘m not sure this is accurate—but sources have told me that Geragos has not...

ABRAMS:  If you‘re not sure it‘s accurate...

HOROWITZ:  ... prepared much.

ABRAMS:  If you‘re not sure it‘s accurate, let‘s just move on...

HOROWITZ:  All right.  OK.

ABRAMS:  All right.  Paul, chances of death—you got the death penalty in the David Westerfield case, a very high-profile case, killing that lovely little girl whose name now escapes me...

PFINGST:  Danielle van Dam.

ABRAMS:  Danielle van Dam.  Is this another case where you think that the prosecutors have a real shot at a death sentence?

PFINGST:  I think it‘s less than 50 percent, Dan.  There are basically three reasons.  First reason is stranger on stranger killing is more likely to produce death in the state of California, because jurors feel more personally threatened by a stranger on stranger crime.  This was not a stranger on stranger crime, obviously.

The second, the jurors don‘t know how Laci Peterson died.  It‘s easier for jurors to give the death penalty if they can envision a knife, a gun, a hammer or something, and somebody being brutally and savaged killed.  There‘s no visual in their mind about how Laci Peterson died, and so that‘s also very difficult.

And the third reason is Scott Peterson has no prior criminal record, and there‘s a very high correlation between prior crimes of violence and getting the death penalty, and obviously Scott Peterson comes in without a prior felony.  Those three things are pretty strong predictors of who will get death and who won‘t, and they tend to work in Scott Peterson‘s favor.

ABRAMS:  I agree.  Daniel Horowitz, Paul Pfingst, thanks a lot. 

Joshua Marquis is going to stick around for our next story.

Coming up—jurors get the case of Coral Eugene Watts.  He‘s admitted to killing 13 women decades ago, but until now he had never been prosecuted for murder.  One of our viewers helped authorities finally put him on trial for murder.  The jury is deliberating.  We talk to his lawyer.

And the International Red Cross says it‘s investigating a U.S. Marine who killed an injured Iraqi fighter at close range.  The shooting was caught on tape.  The question we ask—the Marine had been justified.  We‘ll talk to two former JAG attorneys.

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a confessed serial killer set to be freed until someone saw him on our program.  Now jurors deciding whether to put him away for life.  We talk to his lawyer, first the headlines.

(NEWS BREAK)

ABRAMS:  We‘re back.  We have an update on a story we brought to you back in January.  A confessed serial killer, one of the worst ever, set to be released, freed from prison.  I was so outraged I put up a number for anyone who had information about any of the other murders that could keep him behind bars.  One of our viewers did just that.  Michigan Attorney General Mike Cox at a press conference back in March.

(BEGIN VIDEO CLIP)

MIKE COX, MICHIGAN ATTORNEY GENERAL:  Today‘s charge is the result in part of an eyewitness who reemerged to provide essential evidence against Mr. Watt after I appeared on THE DAN ABRAMS REPORT on MSNBC.

(END VIDEO CLIP)

ABRAMS:  Joseph Foy saw this show and has now become the linchpin of the prosecution‘s case against Coral Eugene Watts.  Watts admits to killing at least 12 women and is a suspect in as many as 40, 40 killings.  He was scheduled to be set free from a Texas prison in 2006 based on a ridiculous deal where he agreed to bring the authorities to some of the bodies in exchange for immunity.

But now after Mr. Foy came forward, Watts is back on trial for the Michigan murder of Helen Dutcher 25 years ago.  And while Foy, our viewer, is the only state‘s witness in this trial, Michigan prosecutors subpoenaed three Houston women to recount their encounters with Watts back in 1982.  Julie Sanchez recalled how he left her for dead after slashing her neck on the side of a highway.

(BEGIN VIDEO CLIP)

JULIE SANCHEZ, PROSECUTION WITNESS:  He grabbed me like this (UNINTELLIGIBLE) like this.  When he got here, he pushed it all the way inside and then did like this, and he cut the rest of my neck and my ear.  Then he got my head and he just went like this (UNINTELLIGIBLE).

(END VIDEO CLIP)

ABRAMS:  Today the closing arguments, prosecutors said the evidence points in one direction and one direction only, towards Coral Eugene Watts.  Here‘s what the defense, though, had to say in the closing argument.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Even in a well-lit area at night, to be able to say with 100 percent certainty that that‘s the person on TV instantaneously is simply impossible.

DONNA PENDERGAST, MICHIGAN ASST. ATTORNEY GENERAL:  A blood-soaked pattern of death and destruction has led to this courtroom.  Unequivocally, the evidence in this courtroom has proven that the perpetrator of that blood-soaked pattern is, indeed, the person who murdered Helen Dutcher on December 1 of 1979 in cold blood.

(END VIDEO CLIP)

ABRAMS:  The jury deliberated today for about an hour before going home for the night.  “My Take”—I‘m glad we could help.  Whether he‘s convicted in this case, this is a dangerous killer who ought to be behind bars.  No question.

Joining me now to discuss is Ronald Kaplovitz, the lawyer who‘s been defending Coral Eugene Watts, and back with us again is Oregon prosecutor Joshua Marquis.  All right, we‘ve talked about this case before Mr.  Kaplovitz.  I mean the heart of your defense is that the eyewitness, the man who saw Mr. Watts on our program, couldn‘t have really seen what he claims to have seen?

RONALD KAPLOVITZ, CRIMINAL DEFENSE ATTORNEY:  That‘s really correct.  The evidence that‘s been established at trial indicates that Mr. Foy, the witness, saw the perpetrator from approximately 80 feet in a dark alley.  Today we had a demonstration for the jury of what exactly 80 feet actually looks like.  We took them outside of the court into the hallway, stretched out a tape, and put some chairs so they could see what 80 feet is.

And I will tell you that when you look—try to look at a human being, we weren‘t able to do that for the jury, but if you try to look at a human being from 80 feet, even in broad daylight, while you‘ll be able to tell their race and the color of their hair and whether they got a mustache and maybe a beard, to be able—to really be able to tell any distinguishing features, it‘s simply impossible.

ABRAMS:  Are you saying that you think Mr. Foy is lying when he says he saw the murder?

KAPLOVITZ:  No, I‘m not saying he‘s lying.  I think Mr. Foy truly believes that he saw something, and he truly believes that it‘s Coral Watts.  What I‘m saying is he‘s simply inaccurate in being able to identify him as being the person.

ABRAMS:  Here‘s what Mr. Foy said when he testified.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Your Honor, I‘d ask that Mr. Watts take off his glasses at this time if the court would allow it.

UNIDENTIFIED MALE:  You may.

UNIDENTIFIED FEMALE:  Mr. Foy, do you see the person that you saw that night in this courtroom today?

UNIDENTIFIED MALE:  Yes, I do.

UNIDENTIFIED FEMALE:  OK and would you please point to him and describe what he‘s wearing?

UNIDENTIFIED MALE:  Be the gentleman over there, blue vest, blue shirt, glasses in his hand.

UNIDENTIFIED FEMALE:  Does he look the same today as he did then?

UNIDENTIFIED MALE:  Eyes do.

(END VIDEO CLIP)

ABRAMS:  Joshua Marquis, Mr. Kaplovitz has been on this program before.  He‘s very honest about representing Coral Eugene Watts, basically said, look, he‘s a horrible person, he‘s a horrible guy.  That he is just sort of defending him in the context of this particular case, but, you know, this is not one of these defense attorneys who‘s going around saying my client‘s a great guy and society is not in danger if he goes free.

With that said, here—this is number six here—these are some of the reasons that it is so frightening, the idea that this guy could do free.  He said he‘d kill again if he‘s released.  He‘s confessed to killing 12 women in Texas, one in Michigan.  His plea-bargain included immunity for 13 killings.  He led police to three victims‘ bodies.  His 60-year sentence was reduced to 24 years.

I mean, Joshua Marquis, you deal with a lot of these cases.  This case has got to be the poster child for the worst deal making in the history of prosecutor plea-bargain dealing, whatever.

MARQUIS:  Well, I think it‘s a poster child for a couple of other things.  It‘s a poster child for the death penalty.  And it‘s a poster child for why, when many, many states have said, you know, don‘t worry, we‘re going to put this person away for life.  You know, back when this deal was made, I don‘t know the details, but I‘m fairly confident that the prosecutors probably thought, and the judge probably thought...

ABRAMS:  Yes, they did...

MARQUIS:  ... that they were putting Mr. Watts away for life.  But they weren‘t.

ABRAMS:  They did.  No, there‘s no question that they did.  I mean now, of course, you could argue now life without parole means it in a way it didn‘t at the time.  But Mr. Kaplovitz, things are not—the likelihood is you‘re going to lose this case, right?

KAPLOVITZ:  We‘re going to see in the near future, that‘s for sure.  That‘s all I can say about that.  I—you know, I understand why people think I‘m going to lose the case, and I very well may lose the case, but, you know, you never know what‘s going to happen until it happens.

ABRAMS:  Do you get nervous sitting next to this guy at the counsel table?

KAPLOVITZ:  Not really.  He‘s—it‘s an unusual situation with Mr.  Watts.  He‘s very intelligent.  He‘s extremely cooperative with me.  If he decides to work with somebody, he‘s very cooperative.  He worked with Tom Ladd down in Texas, the detective who was in charge of that case, and once he decided to talk to him, he was very cooperative, gave him all the information, volunteered information.  It‘s unusual because he‘s—this is not often what you get when you‘re dealing with murder cases or other type of violent criminals.

ABRAMS:  Yes.  All right.  Well, you know, I said it before, and this is not directed at Mr. Kaplovitz, this is directed at Mr. Watts.  If Mr.  Watts is acquitted, this program will devote resources to doing other segments, to see if other witnesses can come forward to help keep this man behind bars.  This is absolutely frightening that a confessed serial killer, possibly one of the worst in history, has the possibility of walking free in one year from now.

Ronald Kaplovitz and Joshua Marquis, thanks a lot.

MARQUIS:  Thank you.

KAPLOVITZ:  Thank you.

ABRAMS:  Coming up—the Pentagon expands its investigation of a U.S.  Marine who shot and killed an unarmed Iraqi at close range.  Now apparently looking into whether more than one was killed.  But at the same time, just a block away, a booby-trapped dead body exploded.  So we ask, could this be self-defense?

And the talking heads and pundits were out in force for the Scott Peterson verdict.  Many commenting snidely on what the talking heads and pundits were saying and had been saying, so I demand accountability that the pundits and talking heads admit that they, too, are pundits and talking heads.  It is my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  In Iraq, the fighting in Fallujah has died down enough that Marines who were going house to house looking for insurgents now helping Iraqi civilians collect corpses from the street.  Marines also fighting insurgents in the northern city of Mosul and they‘re investigating one of their own over an incident we reported Monday, a shooting that may have been self-defense or may have been a crime.

NBC‘s Jim Miklaszewski has more from the Pentagon.

JIM MIKLASZEWSKI, NBC NEWS CORRESPONDENT:  In the heat of the battle for Fallujah, a U.S. Marine, who himself had been wounded only the day before, made a split-second decision that cost one enemy insurgent his life and could now result in criminal charges against the Marine.

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE:  There Marines in there?

MIKLASZEWSKI (voice-over):  As this squad of Marines cautiously approaches, gunshots ring out from inside this mosque.  A second squad of Marines had already been in the mosque, and one of them acknowledged they had shot some of the enemies found inside.  As NBC correspondent Kevin Sites and his cameraman enter the mosque, they see five suspected enemy who had been wounded in a fire fight with Marines the day before.

One Marine off camera notices one of the suspected insurgents still breathing.  What happens next is too graphic to show on TV.  The Marine raises his rifle and fires a single shot into the head of the man...

UNIDENTIFIED MALE:  Faking he‘s dead.

UNIDENTIFIED MALE:  Yes, he‘s breathing.

UNIDENTIFIED MALE:  He‘s faking he‘s (EXPLETIVE DELETED) dead.

(SHOTS)

MIKLASZEWSKI:  ... who was apparently unarmed.  It‘s not clear, however, whether the Marine thought he was acting in self-defense.

UNIDENTIFIED MALE:  The purpose of this investigation is to determine whether the Marine acted in self-defense, violated military law, or failed to comply with the law of armed conflict.  The Marine has been withdrawn from the battlefield pending the results of the investigation.

(END VIDEOTAPE)

ABRAMS:  NBC‘s Jim Miklaszewski there at the Pentagon.  Jim also reporting tonight that another Marine squad may have shot other unarmed insurgents in that mosque before the incident that you saw.  “My Take”—we ask whether it still may be self-defense, both legally and practically.  Another Marine was killed at almost the same time by a booby-trapped death body.

The Marine in question had been shot in the face in battle, possibly a battle with these very insurgents.  As a legal matter of war, isn‘t this cut and dry as some might like to believe?  But like the civilian courts, the question remains, what was going on in the soldier‘s mind?

Timothy Susanin served six years as a federal prosecutor and four as a Naval JAG attorney, and Raymond Toney is a former Reserve Army officer and a military law defense attorney.  Gentlemen, thanks very much for coming on the program.  Tim, first reaction to hearing about this case.

TIMOTHY SUSANIN, FORMER NAVY JAG:  Well, I think like everybody, my first reaction is, Dan, that there‘s not a single person that‘s going to look at this case from the investigators who are looking at it now, the NCIS, to the grand jury level and a jury, if it gets that far, that‘s going to overlook the context, the bigger picture here.  As we were talking about earlier, the fog of war that‘s going on here, the booby-trapped bodies, the other tricks that the insurgents have been playing on these Marines.

I think the problem, though, for this Marine is—and this is what‘s not going to enable law enforcement to slam the book shut on this case now, Dan, is that, unlike most of these cases, you‘ve got an eyewitness account, your own reporter, Kevin Sites, was actually in the mosque, and his cameraman was there, so you also have videotape.  And in neither of those accounts, Kevin‘s narrative and the videotape, do you see a lunge by the insurgent, a grab for a gun, a sudden movement, anything that could be seen as a provoking act.  And so what you‘re left with is a threshold claim that this Marine shot a wounded combatant in the head, and that violates the Geneva Convention, and thus, the investigation has to go forward.

ABRAMS:  What about, Mr. Toney, the fact that literally, as this was happening, maybe a block away, another Marine was killed by a booby-trapped, dead body?  Does that come into play as part of the—I would think that that comes into play, because you‘re always talking about what‘s going on in the mind of the soldier.

RAYMOND TONEY, MILITARY LAW DEFENSE ATTORNEY:  That‘s correct.  I believe that the circumstances where another unit encountered a booby-trapped corpse or insurgent is very, very relevant.  And that leads to the other question of whether that was a common occurrence.  If multiple units, whether Army or Marine Corps, had encountered such tactics on the part of the insurgency, then that certainly leads great credence to this Marine‘s contingent, if, in fact, he raises that contingent, that he recently apprehended harm from the insurgent and harm to his fellow Marines, and may well have been acting in self-defense.

ABRAMS:  And it would seem then—for example, is a soldier allowed -

·         let‘s say that‘s the case, all right.  The insurgents are using booby-trapped bodies to try and kill soldiers.  Then I would assume then that at the outset, it‘s OK for soldiers to shoot at dead bodies, is it not?  I mean as a legal matter.

SUSANIN:  Right, yes, but I think the distinction that‘s going to be drawn here as this investigation goes forward is this—in those situations, our troops approach the bodies.  They were evidently the booby-trapped bodies—rigged with explosives.  What you have here, as you look at that videotape and listen to Kevin‘s narrative, is, as the only threshold act, a recognition that this body is breathing, you hear the comment he‘s faking it.

As Kevin reports, they notice that he‘s breathing, then the two shots go off and the one Marine says to the other, well, if he was faking it, he‘s dead now.  And that‘s a different situation from the cases that we‘re hearing about.  It‘s going to be tough for the investigator to really parse out, given that, what was in this Marine‘s mind.

ABRAMS:  With that in mind, Mr. Toney, what does the defense then in this kind of investigation or more focus on?

TONEY:  In this case, I agree with the commentary that this Marine has problems based strictly on the video evidence.  One of the things that they will have to examine is whether, in fact—one again, the frequency with which booby-trapped corpses or injured insurgents was in practice, and they‘re also going to have to look at whether there were procedures in place for Marines entering such facilities to disarm potentially booby-trapped insurgents and...

ABRAMS:  What about faking his death?  I mean if he is faking, does that further help the defense or hurt, do you think, Mr. Toney?

TONEY:  If—I think neither way.  If he‘s faking a death, then he may be doing so because he doesn‘t wish to be executed or he just wishes to be left alone and have an opportunity to escape at another time.  I don‘t see that as an especially relevant factor.

ABRAMS:  Yes.  All right.  Timothy Susanin and Raymond Toney, thanks very much.  I should tell you that we will continue to follow this story.  We will also continue to follow it, not just show you video and say, oh, look at this Marine, et cetera.  We‘re going to look at the possible claim that this Marine could have been just doing what he‘s supposed to be doing there.  We‘re going to make sure that we cover both sides of this.

Coming up—I am a lawyer.  I‘m a reporter.  I‘m a talk show host.  You might even say I‘m a pundit, but at least I admit it.  Many of my colleagues like to demean the media and the pundits, and so I ask, what are they?  It‘s my “Closing Argument”.  It‘s coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up my “Closing Argument”—why pundits who criticize the pundits hate being called pundits.  It‘s coming up.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why you shouldn‘t believe pundits and media types who decry pundits and media types.  For example, I‘m so tired of hearing lawyers on TV saying something like, while all the talking heads and pundits were saying X, I was saying Y.  And what are you?  Are you not a talking head or a pundit?  We see the same thing from news hosts and analysts, members of the media who attack the—quote—“elite media”, the amorphous unidentified evil doing symbol of debauchery and bias.  The perennial scapegoat for all problems in society.

When you hear a media figure attack or snidely remark about the elite media, ask yourself, is this person really part of the blue-collar media?  Is his or her salary about what mine is?  Can he or she really understand what I have to endure or is this just a foe populist charade.  Most of the time it is an effort by some to pretend that they are different, that they are just average Joes fighting for the little guy.  It‘s like a lifelong politician accusing his or her opponent of engaging in politics as usual.  Beware of those who try to distance themselves from their roots.

Look, there are major problems with talking heads, pundits and TV hosts.  They deserve criticism.  I regularly criticize certain lawyers and TV hosts, but I don‘t try to pretend that I‘m not one of them.  I‘m going to be straight about it.  I‘m a member of the media and I‘m a lawyer, two of the most hated professions around.  I am what I am.  Next time you hear a talking head or a host refer to them, yell at the TV set and say, and you are?

I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night we reported on that Fallujah story of the Marine shot and killed a wounded insurgent in a mosque, an investigation immediately launched, but this same Marine had reportedly been shot in the face in combat the day before and about a block away another Marine reportedly killed by a booby-trapped body of an Iraqi insurgent.  So we asked whether it might be self-defense.

Plenty of e-mails on this.  Jaime Jimenez, a former Marine writes, “I‘ve seen the coverage on the other two major cable networks.  May I say that I for one appreciate that you have explained that these so-called insurgents have booby-trapped bodies and that our Marines are facing this possibility daily.  I would also like to say thank you for explaining that you must put yourselves in the shoes of these young Marines and understand the incident in that context.”

From Muskogee, Oklahoma, Janet Baker.  “I just watched the O‘Reilly show, referring to a Fox News program, he actually seemed to be goading us into thinking this was a terrible thing that happened.  It was a terrible thing to happen, but as you explained, there were other circumstances surrounding this incident.”

Barbara Mandela (ph) writes though, “Being a soldier is a tough job, but it is not appropriate to give a free pass to the person in power toting a gun.”

Also last night, the debate over the theory of evolution, and in Cobb County Georgia classrooms, the debate is over a sticker in student textbooks which informs students evolution is a theory, not a fact.  I said parents and religious schools can and should guide kids and teach them a wide variety of religious theories, but according to the U.S. Supreme Court, there should be only one theory in public schools—the theory of evolution.  Many e-mails from both sides.

Sarah Fleming, “Teachers are not being asked to judge between the two as being right or wrong.  Why would it be such a crime to allow students to think for themselves and ask questions rather than being spoon-fed the theory of evolution alone?”

Sarah, because public schools are not the place for students to decide between secular and religious answers.

From Dayton, Ohio, John Brooke.  “It is correct and proper for all true and honest scientists to state that in fact evolution has not yet been proven a reasonable doubt and that in fact legitimate doubts still do exist.  Because of this, it is proper to have the disclaimer on these textbooks from a purely scientific standpoint.”

John, then every scientific theory from the theory of relativity to quantum theory, you name it, should have disclaimers as well.

Thomas Brewton in Stamford, Connecticut.  “The only evidence that evolutionists can adduce is could have been as in Laci Peterson could have been the victim of a bizarre cult.”

Again, that‘s the case with all theories that kids learn.  But they are taught them because there‘s agreement within the scientific community.  And again, as I said last night, if you look at it strictly through a scientific prism, there‘s no explanation that mainstream scientists are considering on the other side as a scientific matter.

Don Campbell in Newport, Oregon.  “It‘s no longer logically reasonable to dismiss evolution as a theory anymore than it would be correct to dismiss other well understood scientific concepts as merely theories.  No, evolution isn‘t dogma.  It is creationism that is dogmatic and non-scientific.”

And Liz Whitney asks, “Do you suppose the folks who are putting those stickers on those textbooks would be willing to forego any medical information that was derived from the theory of evolution?  Like the idea that the virus will evolve into another.  If a man‘s daughter is raped, will he forego the DNA evidence that will convict her rapist?”

Social Studies teacher Matt Mahoichic in Norwich, New York.  “Teach your children whatever medieval stuff you want to about the flood, book of Genesis, your belief that dinosaurs still roam the earth somewhere, along with Adam and Eve thrown in for good measure.  Please do it in private school, church, or at home during dinner so we can stick to the facts in our public schools.”

Kim Buche in Kansas.  “Maybe we should start putting disclaimer stickers on the Bible such as this text was written thousands of years ago.  Please do not take it literally.”

Kim, I support teaching religious explanations, just not in public schools.

Your e-mails abramsreport—one word -- @msnbc.com.  We go through them at the end of the show.  Coming up next, “HARDBALL” with Chris Matthews.

Thanks for watching.  I‘ll see you tomorrow.

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

END   

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