updated 11/23/2004 10:18:11 AM ET 2004-11-23T15:18:11

Guest: Lisa Halushka, David Cornwell, Geoffrey Fieger, Bill Duffy, Robert Ottinger, John Q. Kelly, Daniel Horowitz, Paul Pfingst

DAN ABRAMS, HOST:  Coming up live from Redwood City, California, Scott Peterson loses his bid for a new jury to decide whether he should live or die.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  The judge puts the penalty phase on hold, but rules the trial will stay in Redwood City.  Peterson‘s lawyer already heading to a higher court.

And by now you‘ve probably seen the melee on the court, arguably the worst ever.  Nine NBA players suspended and fined.  Now prosecutors studying the tape.  Criminal charges are expected.  And the lawyers are already lining up with civil suits.  Will the fans be charged for assaulting the players, and will the players sue the fans?

And...

UNIDENTIFIED MALE:  You ready for the (UNINTELLIGIBLE) hurricane?

ABRAMS:  It‘s all fun and games until someone gets hurt.  A 7-year-old girl injured playing dodge ball in gym class.  Her parents now suing the school, claiming kids her age shouldn‘t be playing the game at all.  Will dodge ball become the latest victim of the litigation explosion?

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket—I am once again in front of the courthouse at the Scott Peterson trial, where the judge ruled that this jury will decide whether Scott Peterson lives or dies, just not quite yet.  Wishing them a happy Thanksgiving and warning them not to eat too much, Judge Alfred Delucchi sent the jurors home today before they heard a single witness in the penalty phase of the case.

But not before defense attorney Mark Geragos compared the scene after the verdict to the scenes outside the trials of young black men accused of raping white women in the 1950‘s.  I guess the difference here is that Peterson wasn‘t discriminated against, he received a fail trial, and he‘s accused of murder, not rape.  But apart from that, the similarities, I guess, are striking.

Geragos asked the judge to dismiss this jury and to change the location of the penalty phase, citing high emotions and talks of book deals in the jury room.  He cited—quote—“The atmosphere surrounding the courthouse charitably described as a mob scene, obviously cheering the fact that the jury reached the verdict that they did.”

The judge denied the motion, ordered everyone back to court on Tuesday, November 30, for the start of the penalty phase.  We‘ll have more of our coverage of the Peterson case later in the program.

But first, the legal battles are already brewing off the court and in court after that huge fight at the Pacers-Pistons game.  Players and fans could be charged with crimes.  Players and fans could be sued for millions.  Not since the Paris Hilton tape hit the Internet have so many lawyers been called in to scrutinize the minutia of a videotape.

Before we get to the legal battles, NBC‘s Leanne Gregg has the story.

(BEGIN VIDEOTAPE)

LEANNE GREGG, NBC NEWS CORRESPONDENT (voice-over):  The Indiana Pacers organization is responding to Friday‘s brawl with the Detroit Pistons and fans.

DONNIE WALSH, INDIANA PACERS CEO:  The incident that took place in Detroit last Friday night was a low point in professional sports.  But I‘d also like to add that it‘s been a low point for our franchise as well, and we apologize for being part of it.

LARRY BIRD, INDIANA PACERS PRESIDENT:  This is not something that we wanted.  It happened.  We deal with it, and we move forward.

GREGG:  The incident, which led to sweeping suspensions of players and a criminal investigation, is just one of several recent games that raised questions about fan and player behavior.  On Saturday, players from Clemson and the University of South Carolina fought during their college football game.  And Texas Rangers pitcher Frank Francisco threw a chair into the stands in Oakland in September, breaking a woman‘s nose during a shouting match with fans.  Analysts said players and fans need better defined boundaries.

KEN ROSENTHAL, THE SPORTING NEWS:  Fans in major professional sporting event venues seem to feel this sense of entitlement, that they can go and act a certain way, and that is wrong.

GREGG:  But many people said the player‘s behavior during Friday‘s brawl was inexcusable.

UNIDENTIFIED MALE:  Fighting with the fans is uncalled for in any sport.

UNIDENTIFIED MALE:  It was a sad scene.  I mean it really made me sick to see.

GREGG:  And while most agree players and fans should be separated during games, prosecutors said there‘s no difference between the two groups in the eyes of the law, and both will be investigated equally.

Leanne Gregg, NBC News, Pontiac, Michigan.

(END VIDEOTAPE)

ABRAMS:  Yikes.  We also have to report that police and prosecutors are asking the public for help in their investigation.

(BEGIN VIDEO CLIP)

CHIEF DOREEN OLKO, AUBURN HILLS, MI:  We want to be thorough and fair in our investigation, which will take some time to complete.  No one should expect charges to be filed quickly.  To be thorough, we are asking that any eyewitness who was at the Palace Friday night and who can offer information or evidence, particularly in the form of photographs or video, to contact us at 248-370-9444.

(END VIDEO CLIP)

ABRAMS:  “My Take”—while the prosecutors will say that when they are talking about possible charges here, that their fans are going to be treated just like the athletes.  That only tells part of the story.  Expect that any athlete who threw a punch in the stands will be charged for each and every punch, and any fan who threw items at the players because of all the controversy that surrounded this will be charged, as well.

But I‘d be surprised if we saw any serious charges for fan-on-fan or player-on-player violence.  Why?  Because that‘s long been accepted as part of the sport experience unless someone is viciously assaulted.  Fights in the stands get you kicked out, maybe even sued.  Fights on the court get you kicked out, as well.  What makes this different is that here, the lions left their cages.

Joining me now, Lisa Halushka, former Oakland County, Michigan, prosecutor.  That is exactly where this is all taking place.  I‘m also joined by David Cornwell, a sports attorney.  And on the phone, defense attorney, our friend Geoffrey Fieger, who‘s representing some of the fans involved in the brawl on Friday night.

All right, Lisa Halushka, let me start with you.  I mean let‘s be—I mean look, the prosecutors are going to tell us, oh, everyone‘s going to be looked at the same, no one‘s going to get preferential treatment.  OK, we know that.  Now as a practical matter, what‘s going to happen in terms of who‘s going to get charged?  I would expect that you‘re going to see fans getting charged criminally in a way they never would have in the past for throwing things on the court, and you‘re going to see players getting charged for throwing punches.

LISA HALUSHKA, FORMER OAKLAND CTY MI PROSECUTOR:  I think you‘re absolutely right, Dan.  I think what they‘re going to do is break down these videotapes from every angle that they‘ve got them and evaluate each and every individual punch, and each punch is going to have to be looked at to see if it was thrown in response to something being thrown at them, so there‘s a self-defense claim.

They‘re going to look at each individual punch and who was involved in it to see if you would have a mutual combatant situation as opposed to one individual escalating the fray to beyond where it started.  And I think you‘re going to see charges coming on both the players, as well as the fans.

ABRAMS:  Yes.  I got to tell you, you know, you look at Michigan‘s law on self-defense here, and I think that very few people are going to be able to use this to their advantage.  Let me read from number four here—

Michigan‘s law on self-defense.

The defendant must have honestly and reasonably believed that he or she had to use force to protect himself or herself.  A person is only justified in using the degree of force that seems necessary at the time.  The right to defend oneself or another person only lasts as long as it seems necessary for the purpose of protection.  The person claiming self-defense must not have acted wrongfully and brought on the assault.

You know, David Cornwell, I don‘t even see where self-defense is—I mean I know people are going to claim self-defense, but as a practical matter, who‘s going to actually be able to claim self-defense here?

DAVID CORNWELL, SPORTS ATTORNEY:  Well, it depends on which punch we‘re talking about.  Clearly Ron Artest was exercising restraint, and he was provoked when that cup came through the air and hit him.  There is no precedent that I can think of that would tell us whether his reaction was reasonable in a sports content...

ABRAMS:  Well, you‘re not suggesting - wait, wait.  You‘re not suggesting that there may be a claim that as a legal matter Ron Artest is legally protected for going into the stands and trying to punch someone because he was hit with a cup, are you?

CORNWELL:  No, I think that‘s a more difficult argument.  But I‘ll tell you what I do believe.  I do believe that the NBA and the arena had an obligation to provide a safe environment for the fans and the players...

ABRAMS:  Well...

CORNWELL:  And when that cup came through the air...

ABRAMS:  We‘ll get to that.

CORNWELL:  Excuse me?

ABRAMS:  Yes, no, we‘ll get to that, but I want to stay on the criminal issues for a moment.  There‘s going to be plenty of blame to go around here.  That I know.  And it‘s going to be—it‘s going to be everyone from the arenas to the players to the fans, to everybody.  But I want to stick to the criminal issues.  Geoffrey...

CORNWELL:  The punch that Ron Artest...

ABRAMS:  Go ahead.

CORNWELL:  The punch that Ron Artest threw on the court when that fan confronted him with his fist balled up, I do think that was reasonable—a reasonable use of force in response to a threat, and that was self-defense.

ABRAMS:  Really?  All right.  Geoffrey Fieger, you‘re representing some of the fans already.  So, what, they just—they call you up, they say, you know, this is what happened, we want to sue.  We‘re ready to sue, right?

GEOFFREY FIEGER, CRIMINAL DEFENSE ATTORNEY (via phone):  That‘s right.  That‘s what people do.  That‘s what—especially if you‘re in Detroit or the local surroundings, and you‘re hurt, you call Geoff Fieger.

ABRAMS:  Yes.  So what do—Geoffrey, you‘ve seen the videotapes now.  You know, I hope you‘re representing the fans who were the innocents here, right?  Are you representing...

FIEGER:  No, absolutely...

ABRAMS:  ... any of the provocateurs...

FIEGER:  No.  First of all, the only—since you want to talk about the criminal actions, it seems to me, and Lisa‘s not entirely incorrect, but David Gorcyca, who is the Oakland County prosecutor, reasonably, probably can only bring a charge against the guy who might have thrown the plastic cup.  And even then I‘d have a difficult time convicting anybody of throwing a plastic cup.

Other than that, the basketball players that went into the stands and started just swinging are just guilty of assault with anybody that they hit, and they hit a number of people.  My—one of my clients is a 67-year-old man who‘s hit on the back with  -- or just slugged in the back with a chair, a folding chair by Jermaine O‘Neal.  I mean that‘s...

ABRAMS:  Well I hope it‘s...

FIEGER:  ... that‘s clearly an assault.

ABRAMS:  ... I hope it‘s—Geoffrey, I hope it‘s not the guy—can me show one of those tapes again from the stands.  There‘s a guy who—that guy, in the blue shirt there, who holds him back, but then, in a moment, you‘ll see one of the guys—wait, actually, that‘s a policeman.  So there‘s another guy who starts to punch Artest—here it is—whoa starts punching him in the face—that guy...

FIEGER:  Well...

ABRAMS:  Now, I mean I don‘t know what his role is, but the bottom line is that that—and when—and he starts attacking that guy, I mean that does seem to me to be self-defense.  Do we know—is that police Cory (ph)?

FIEGER:  Even those are—the fans have a better self-defense, Dan, claim than Ron Artest.  Ron Artest is up there swinging his fists at anybody who gets in his way.  And so the people who are there have a much better defense, self-defense claim than you might think against Ron Artest.  What‘s he doing up there except assaulting people?

HALUSHKA:  Dan...

ABRAMS:  All right, let me just...

(CROSSTALK)

ABRAMS:  ... as we—go ahead, Lisa, very quickly, and then we‘ll take a break.  Go ahead.

HALUSHKA:  I just want to say we have to remember that there‘s a difference between being provoked and responding and acting with legally sufficient self-defense.

ABRAMS:  Yes.  All right, let me take a quick break here.  When we come back, we‘re going to go over a little bit more of the law.  We‘re also going to talk, you know, coming up, what about the civil lawsuits.  Geoffrey is already working on a lawsuit on behalf of the fans.  What about the players?  Are they going to sue the fans?

And the game of dodge ball could go the way of kick the can or tether ball becoming basically extinct, but this time not because it‘s just not as exciting as newer games, but because it may get pushed out by a modern-day game ender—lawsuits.  A girl and her mother are trying to collect from her school because she was injured playing.

Plus, the penalty phase in the Peterson trial was supposed to begin today.  The judge pushed it back a week, but not before ruling Peterson has to stick with the jury that found him guilty.  That has his attorney comparing this to the rape trials of black men in the 1950‘s.

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—the Friday night fights between fans and NBA players.  There‘s already civil action lawsuits going on.  We ask though are some of the players going to file suit against the fans?

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Once those fans start throwing stuff on the court like that, those guys are human.  They‘re going to jump in there.

UNIDENTIFIED FEMALE:  I think, like they said, emotions got high, and to me, I feel I shouldn‘t say this, but I think it went really wrong there.

UNIDENTIFIED MALE:  The fans got in it.  That‘s their fault.

(END VIDEO CLIP)

ABRAMS:  Indiana Pacers fans defending, sort of, their Pacer players who jumped into the stands on Friday night after there was a fight on the court, then a fan threw a cup full of something at now-suspended Pacer star Ron Artest.  Artest, a former NBA defensive player of the year, will likely need some serious defending himself.  Not only is he facing a criminal investigation, but you can count on the fact that a lot of his friends right there and the fans are going to be filing lawsuits against him.

But we‘re joined now by Bill Duffy, a sports agent who represents NBA players.  Bill, are we going to see some of these players suing the fans?  I think that this is going to be very different situation legally than we‘ve probably ever seen before.

BILL DUFFY, NBA AGENT:  Yes, I don‘t think there‘s any question.  I think the players will have no choice but to retaliate legally, because there were a lot of fans that basically put themselves into—in the position to attack the players.  So there are many participants who really had nothing to do with the initial incident who forced themselves on the players.

ABRAMS:  And you expect that all of the players involved, or do you think that some players will say I just don‘t want to have any part of these lawsuits against fans?  I mean the NBA does have that sort of whole image of friendly and this and that, and then you have some of the players suing their season ticket holders.  You think any of the players or maybe all the players will say it‘s just not worth it?

DUFFY:  Well, I think you‘ll see counter suits in this case because players will protect themselves.  But in this case, these are Detroit Pistons fans and Indiana Pacer players, so it‘s not like there‘s a loyal fan base there.  So I don‘t think that would be an issue.  But I think the players will have to protect themselves.  As I said, these are private citizens who, in some cases, provoked the attack.

ABRAMS:  And Geoffrey Fieger—Geoffrey again is representing some of the fans involved here and filing civil lawsuits.  Geoffrey, let‘s be clear.  Have you sort of vetted which one of the clients you‘re taking?  Meaning, did you look at the videotape and say, all right, look, I wouldn‘t want to represent this guy because this guy seems to be throwing some punches?

FIEGER:  No—well, yes, of course we vetted it, and we‘re not going to take the case of the guy who instigated it in the first place and threw a beer that bounced off Artest‘s stomach, which obviously didn‘t hurt him, but I have to disagree.  There‘s not going to be any lawsuits by any of the NBA players who ran up into the stands and began assaulting people.  I mean people have been suspended for a year or 30 games.

Jermaine O‘Neal, Jackson, Artest are not going to sue anybody, especially in Oakland County, Michigan, where they would have to bring the lawsuit, and they are going to be sued.  But, of course, I vetted the lawsuit.  But frankly, the—that would be the only person‘s case I wouldn‘t take.

Other than that, when you look at these tapes, Dan, and you see these wild men going into the stands swinging, and they swing at everybody, no one who was in their way was saved from their assault.  It was pretty vicious.  You couldn‘t justify anything that those—remember these are entertainers.  They assaulted the audience.  They‘re entertainers.  An audience came there not to engage in fisticuffs, but to watch a sporting event, and the entertainers attacked them.  They‘re held to a different standard, by the way.

ABRAMS:  Well, David Cornwell, do you agree with that about  -- let‘s talk about in the civil context, is there a different legal standard for the players suing the fans and the fans suing the players?

CORNWELL:  I couldn‘t agree—I couldn‘t disagree more.  They are not entertainers.  They are men who play professional sports.  I don‘t think that we should rule out at all the possibility of players filing counterclaims, nor do I think we should rule out the possibility of players filing suits either against the NBA or the Palace at Auburn Hills.  Both of which had an obligation to provide a safe environment for the players and the fans, and they failed to do so.

Now, Ron Artest‘s damages, as well as Jackson and O‘Neal, have been established by the failure to provide a safe environment for these players.  They have suffered specific monetary damages, and I would recommend that they file lawsuits.

FIEGER:  Oh, my God...

ABRAMS:  So you‘re saying—you‘d recommend that they sue the owners of the stadium, but, you know, how does that justify them going in the stands?  I mean it just seems that they‘re going to—some of them—

Artest in particular—is going to have a real tough time winning a civil lawsuit against anybody.  I mean the way you win civil lawsuits is you get assaulted and you say I‘ve been the victim, period.  You can‘t be the victim for a second, and then turn it on everyone else and become the assaulter and expect to win anything.

CORNWELL:  The way you win a civil lawsuit is when a party owes you a duty and they fail to fulfill that duty.  The Palace at Auburn Hills and the NBA had a duty to provide a safe environment for the players, and they failed to do so.

FIEGER:  That‘s not true.  The way you win a civil lawsuit is you make common sense to the jury, and no one would accept that.

CORNWELL:  Well, maybe you and I will have a chance to argue that in a courtroom, but that‘s my position.

ABRAMS:  All right.  Let me take a quick break.  Geoffrey Fieger gets to go back and enjoy his Anguilla vacation.  Geoffrey thanks a lot for coming on the program and taking the time.

FIEGER:  Thank you.

ABRAMS:  Everyone else is going to stick around, because coming up...

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  The actions of the players involved wildly exceeded the professionalism and self-control that should fairly be expected from NBA players.

(END VIDEO CLIP)

NBA Commissioner David Stern taking heat from the players for the hefty fines he levied against them for Friday night‘s fights.  The question, were they fair?  Did he go too far?

And after losing a bid to move the penalty phase in Scott Peterson‘s trial again, his attorneys could now be appealing the judge‘s decision.  Coming up.

(COMMERCIAL BREAK) 

(BEGIN VIDEO CLIP)

DAVID STERN, NBA COMMISSIONER:  We now I think are going to be a discussion about what we‘re going to tolerate with respect to fan behavior, what we‘re going to tolerate with respect to player behavior, and what we now deem to be adequate security procedures to protect both and here we go.

(END VIDEO CLIP)

ABRAMS:  NBA Commissioner David Stern, himself a lawyer, at the Sunday news conference, where he imposed multimillion-dollar fines.  There were suspensions on some of the players from the Pacers and the Pistons.  NBA issued some of the harshest penalties in its history.

Let lay out exactly what are some of them.  Ron Artest, the entire season he was suspended.  Stephen Jackson, 30 games.  Jermaine O‘Neal, 25 games.  Ben Wallace from the Pistons, six games.  Anthony Johnson, five games.  Reggie Miller, one game.  Chauncey Billups, one game.  Elden Campbell, one game.  Derrick Coleman, one game.

And then this is how much money some of these guys are going to—

Artest almost $5 million, Stephen Jackson, 1.7, Jermaine O‘Neal, 4.1, Ben Wallace, 400,000, Anthony Johnson, 122,000.

I mean that‘s really just the beginning of what these fines and suspensions have meant.  The NBA taking this very seriously.  You know, Bill Duffy, I know we‘re going to hear a lot of people who are in the NBA, near the NBA, near the players say this is unfair, but don‘t you think it‘s important that the NBA has to send a message, even if these guys are going to get the hard end of the stick here, the NBA has to send a message which says the minute you cross that line and go into the stands, the fines are going to triple and quadruple beyond what they ordinarily would?

DUFFY:  Yes.  Whether I agree with it or not, the severity of it, David Stern had to do what he had to do just to make a statement to the fans that the game will be in control and the fans can come...

(AUDIO GAP)

ABRAMS:  All right, I think we‘re losing Bill Duffy there.  Bill, I apologize to you.

David Cornwell, why don‘t you take over?  Are you going to tell me that you think that really now the NBA players here are the victims?  I mean like in the criminal law sometimes you have to send a message to tell the public or in this case, to tell the rest of the NBA players and the future players to come, that this is going to serve as a milestone so that this never happens again.

CORNWELL:  Dan, you know I always take reasonable positions on your show.  And my position is that Commissioner Stern did have to send a message and—but I do think the fines were excessive.  Through the grievance procedure under the NBA‘s collective bargaining agreement, I think the fines will be reduced.  Clearly the players have to pay a price.  They were wrong as well, but they weren‘t the only party that was wrong in this.  And I think the fines—some fine is appropriate, but the current fines are excessive.

ABRAMS:  And very quickly, David, are they going to be able to review these and possibly change them.  I mean these are all appealable, right?

CORNWELL:  Absolutely.  Under the Collective Bargaining Agreement in the NBA, commissioner discipline is appealable in a grievance procedure to an independent arbitrator.  That‘s what happened in the Latrell Sprewell case and other players.

UNIDENTIFIED MALE:  Yes.

CORNWELL:  And I would expect that the fines would be reduced.

ABRAMS:  Lisa Halushka, final few seconds here.  Do you expect to see felonies here as opposed to misdemeanors when people are charged?

HALUSHKA:  Well I think (UNINTELLIGIBLE) mostly misdemeanors, but for those incidents that involved the chair throwing, I think there‘s great risk we‘ll see some felony charges too.

ABRAMS:  All right.  Lisa Halushka, David Cornwell - Bill Duffy, I apologize to you about the technical problems we were having.  But thank you to all of you for coming on the program.  Appreciate it.

(CROSSTALK)

CORNWELL:  Thank you.

ABRAMS:  Coming up, the latest example of our litigious society.  Parents of a 7-year-old girl suing her elementary school after she was injured playing dodge ball.  The parents want the school yard game banned.

And Scott Peterson‘s attorney likened the jurors to conquering heroes upon reaching a guilty verdict and now says they‘re poisoned and should be replaced by a new jury.   Coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up—a 7-year-old girl injured playing dodge ball.  Now her parents are, of course, what else—you sue, you sue the school district.  They say no dodge ball should be played, and they are suing to stop it—headlines first.

(NEWS BREAK)

ABRAMS:  We‘re back.  You know, whether you are the most valuable athlete in school or you were last picked on the team during gym class, chances are you played dodge ball at some point in your Phys Ed career. 

It‘s an elementary school staple, but now we could be seeing the end of an

era.  A jury could soon decide whether dodge ball remains a regular part of

the school yard curriculum or if it‘s just too brutal.  A jury will decide

·         unbelievable.

NBC‘s Peter Alexander has more.

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE:  You ready for the (UNINTELLIGIBLE) hurricane?

(SCREAMS)

PETER ALEXANDER, NBC NEWS CORRESPONDENT (voice-over):  It‘s funny on the big screen, but dodge ball is no laughing matter for Pat Lindaman and her daughter Heather of upstate New York.  In 2001, then 7-year-old Heather was playing dodge ball in gym class when she fell, injuring her elbow, requiring surgery.

PAT LINDAMAN, DAUGHTER HURT IN DODGE BALL GAME:  She was in a cast for about six weeks, and then she had about four weeks of physical therapy after that.

ALEXANDER:  Fearing permanent damage, her parents sued the school, arguing children Heather‘s age shouldn‘t be playing the game at all.  At least one national sports education group agrees saying dodge ball is too dangerous for students of any age.  Although courts nationwide have routinely sided with schools when parents claim too little supervision, a New York State appeals court wouldn‘t take sides in the Lindaman‘s case.  Now it‘s up to a jury to decide whether the student should ever have been allowed to play dodge ball in the first place.

UNIDENTIFIED FEMALE:  Might have more than one remember?

UNIDENTIFIED FEMALE:  Yes.

ALEXANDER:  Officials at Heather‘s school released a statement saying

·         quote—“Although an unfortunate accident, it is the school district‘s position that the students were more than adequately supervised and instructed and the activity was appropriate and within state education regulations and guidelines.”

UNIDENTIFIED MALE:  Game on...

ALEXANDER:  The timeless game of dodge ball, now moving from the playground to the courts.

Peter Alexander, NBC News, New York.

(END VIDEOTAPE)

ABRAMS:  All right, let‘s be clear here, all right?  This girl injured her elbow.  You know, you can injure your elbow playing a lot of different sports in school.  It should be the school board, the school district, parents in general, not one set of parents who‘s making these decisions.  We should not be turning to the courts to make the sort of decisions as to what sort of games should be played in schools.

We asked the attorneys from both sides of the case to join us.  They declined.  But joining me now, civil defense attorney John Q. Kelly and plaintiff‘s attorney Robert Ottinger.  All right, gentlemen thanks very much for coming on the program.

All right.  You know look John I think is going to take my side on this, but Mr. Ottinger, how do you defend the position that you think that you need to sue, or that this is a legitimate lawsuit to get dodge ball out of our schools?

ROBERT OTTINGER, PLAINTIFF‘S ATTORNEY:  Well, in this case, the position is that this child was only 7 years old, and kids this young, it‘s too dangerous.  Schools in seven states around the country have already decided that dodge ball is too dangerous for kids this young, and the National Association for Sports and Physical Education has come down the same way.  And the lawsuit is based on the fact that...

ABRAMS:  Yes.

OTTINGER:  ... if an injury is foreseeable, there‘s liability.  And in this case, it is foreseeable.  It‘s a known dangerous activity for kids this little.

ABRAMS:  John Kelley, I‘ve got to believe it‘s known and foreseeable that kids playing football, older kids, are going to get hurt.  Meaning there are going to be injuries every single year for kids playing football in high school.  We know that.  We can count on that.  And yet, what, we‘re going to start suing the schools to get football out of schools, too?

JOHN Q. KELLY, CIVIL DEFENSE ATTORNEY:  Yes, Dan, this is a troubling case, and it‘s the kind of case that gives, you know, plaintiffs‘ attorneys a bad name in general.  First of all, the damage are, you know, de minimis to begin with.  She had a broken arm at 7 years old.  It‘s fully resolved and it‘s not even a 50,000 grand case in a best-case scenario.

But more importantly, it‘s my understanding that she was injured when she got her feet tangled up with another child.  And that‘s something that‘s going to happen on every soccer field across every school district.  It can happen playing T-ball.  It can happen playing basketball.  It can happen in track when you‘re on a track rounding the corner. 

It‘s just any injury, of course, is foreseeable in any sport, at any age, and it‘s rather unfortunate that it‘s come to this.  It‘s a great game, and kids have to have fun and be healthy and, you know, sow their oats a little bit.  And when we start legislating this or letting the courts decide what‘s right for the kids at this level, I think it‘s a shame.

ABRAMS:  Yes.  Because Mr. Ottinger, that‘s my concern, is that all sorts of different games that are played in schools have risks, and I think there‘s no question that most kids who are probably injured at school—I don‘t know this, but I‘m guessing—are probably, most of them are injured somehow playing some sort of sport or another sport, so it seems that we‘re going down a very dangerous road here to have the court start to tell schools what sports they can and can‘t play.

OTTINGER:  Well, the courts aren‘t going to be telling schools what games they can‘t play.  They‘re just setting a bright line rule here, saying that if little kids, a 7-year-old—this 7-year-old girl is going to break her arm when a bunch of other 7-year-olds are throwing balls at her, the school should pay for her arm, for the injury.

ABRAMS:  No, but they‘re also trying to ban dodge ball.  I mean that‘s part of the lawsuit here.

OTTINGER:  No, that‘s not true.

ABRAMS:  It‘s not just for money damages.

OTTINGER:  No, they‘re not trying to ban dodge ball.  The courts can‘t ban dodge ball.  The courts can just say...

ABRAMS:  Well...

OTTINGER:  ... if you‘re going to have little kids playing -- 7-year-old boys and girls throwing balls at each other like this, it‘s known that they‘re going to get hurt.  We can see it coming and maybe there‘s a better way to structure it to make sure these kids don‘t get hurt...

ABRAMS:  John Kelly...

(CROSSTALK)

ABRAMS:  ... I read that they are trying to ban dodge ball.  I mean that was one of the things that they asked for in their lawsuit.

KELLY:  You know, it may be one of the things, and even if—a jury‘s not going to decide to ban dodge ball.  If they come down with the decision that it‘s unreasonably unsafe or that, you know, a reasonably prudent parent, which is the role the school played, shouldn‘t have allowed that dodge ball to take place, if they decide to make that kind of decision, they are in effect legislating that because the precedent is set, and then every time a child is injured in the future playing dodge ball, the schools have been put on notice, and they either have to make that decision to accept, you know, liability every time this happens in the future, or ban dodge ball, like you said.  So in effect, the lawsuit is seeking to ban dodge ball.

ABRAMS:  Let me read this.  This is my favorite quote.  The National Association for Sport and Physical Education, a nonprofit professional organization, it‘s a good organization, but it says that dodge ball provides—quote—“limited opportunities for everyone in the class, especially the slower, less agile students who need the activity the most.”  So anyway, whatever.  All right.  John Kelly, Robert Ottinger, thanks very much...

KELLY:  Thanks Dan...

OTTINGER:  Thank you.

ABRAMS:  ... for coming on the program.  Appreciate it.

OTTINGER:  Thank you...

ABRAMS:  Coming up—defense attorney Mark Geragos argues that the jury in the Scott Peterson case was treated like it had just won the Super Bowl.  But Judge Delucchi, the judge here, still says that they can go ahead and decide the penalty phase in this case, whether Peterson should live or die.  A lot happened in court today, although I‘ll be honest with my viewers, as I sit outside the courthouse today, I was expecting a lot more.  We‘ll be back.

And House Republicans choose their long-term alliances, not all of them, but a few of them, over the safety of Americans.  I say there‘s no defense for not passing the reforms recommended by the 9/11 Commission.  It is my “Closing Argument”.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  He‘s an innocent man until proven otherwise.  And that was never my, you know, from day one when they told us, you know, they gave us the instruction, it was our understanding that, you know, he is innocent until, you know, Distaso proves him guilty, and he hasn‘t done that.

(END VIDEO CLIP)

ABRAMS:  That was before the verdict.  The defense says that that man‘s statements after the verdict prove how unfair this trial and this jury was.  The first hours of the day today here at the courthouse, where I am in Redwood City, dominated by a defense motion to dismiss this jury and move the case to another county.

Defense attorney Mark Geragos said there was—quote—“irreparable harm to any kind of fair process in the penalty phase because the jury was subjected to the overwhelming crowd outside the courthouse on verdict day.”  He went on to say I can only liken it to what happened in the ‘50‘s in the South with young black men accused of raping white women.  I thought it was something out of a newsreel.  I full expected people to start building the gallows somewhere in the parking lot across the street.

That wasn‘t the only problem Geragos noted.  He also talked about what he says happened inside the jury room behind closed doors throughout the trial.  He said—quote—“Emotions were high based on statements from dismissed jurors Justin Falconer and former jury foreperson Gregory Jackson.”  He said there was talk of book deals during deliberations.  Geragos, again, citing that doctor-lawyer, Jackson.

Jackson was threatened Geragos said, and jurors talked of the popular verdict, the expected verdict.  The judge denied Geragos‘ motion.  Everybody was ordered back to court on November 30 to start the penalty phase.

All right, a lot to talk about here.  Joining me now criminal defense attorney Daniel Horowitz, who argues here, MSNBC legal analyst, former San Diego County D.A. Paul Pfingst.  All right.  Daniel, you know, this was the expected ruling, right, from the judge?

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  It was already decided essentially by the lack of any real hard evidence by Geragos.  He drew upon what we already knew because Delucchi had been there when the juror number five, Mr. Jackson, was questioned.  If there was a real problem, Delucchi would have jumped on it a week ago or so when Jackson was removed.  He didn‘t then.  There‘s no chance he would act on it now.

ABRAMS:  Let me read—this is more from the defense‘s motion for a new jury.  The jury was sequestered during deliberations, then released into a highly charged, pro-conviction, carnival atmosphere.  This was clear error as jurors left the courthouse after the verdict was announced.  They were applauded and cheered as if they were a winning Super Bowl team.

In stark contrast, the mob jeered Scott Peterson‘s mother and members of Mr. Peterson‘s family as they left.  All right, let‘s focus on that Paul Pfingst.  You know, look, that‘s true.  I saw it happen.  Everything Mark Geragos says there is true.  But, you know, it would be nice if every defense attorney could say, because the public followed the case and they‘re all convinced my client is guilty, that means I can‘t get a fair trial.  Well, you know, sometimes the evidence is hard to deal with.

PAUL PFINGST, MSNBC LEGAL ANALYST:  Well, that‘s true, Dan, except I think Mark Geragos does have a legitimate complaint.  It doesn‘t win the day, but it is a legitimate complaint.  There should have been steps taken to make sure that this jury was not exposed to that atmosphere that was outside the courthouse, because if I were in Mark Geragos‘ position, I would be concerned that that might influence the jury.  Now, again, I think the motion still has to be denied, but the court staff should have been sensitive to that, in my judgment, and permitted the jurors...

ABRAMS:  Yes.

PFINGST:  ... required the jury to wait for a period of time before they let them go.

ABRAMS:  Daniel, when did the jurors leave?  Do you remember how long after the actual verdict they left?

HOROWITZ:  Dan, I don‘t remember.  I know what you‘re getting at.  The crowd did calm down considerably after the initial announcement of the verdict, but I don‘t know how long they were inside before they came out.

ABRAMS:  What do you make of this—of Geragos comparing this to the rape trials in the ‘50‘s?  I mean it‘s just so irrelevant and I mean I would say he‘s playing the race card except there‘s no race card to play here.

PFINGST:  That‘s Mark‘s penchant...

(CROSSTALK)

PFINGST:  ... for over exaggeration, Dan.  I think we‘ve seen it from the beginning.  And sometimes he gets a little carried away with his own verbiage, and this is one of those occasions.  He takes a legitimate complaint, a legitimate defense concern, and I don‘t think any lawyer under these circumstances would say this is not a legitimate concern for a defense lawyer, and then he pumps it up beyond recognition.

He participated in building up this case.  He participated by being on television before he was the defense attorney.  He participated by press conference after press conference while he was a defense attorney.  The prosecutors did nothing to bring a crowd down to that courtroom.  They were never on television.  They never gave any statements.  So it‘s a little hard-pressed for him to come forward now and say, oh, my gosh, what a spectacle.

ABRAMS:  Yes.  And Daniel, what about this complaint about the jurors?  It sounds like we learned a little bit more today about what was happening in that jury room, but it was a little bit different than the way Mark Geragos seemed to characterize it, right?

HOROWITZ:  I think so, Dan.  I mean, great, we‘ve got Justin Falconer, who‘s coming up with a new claim that there was some sort of intimidation in the jury room, but that‘s just from a TV spot.  And on your show, I haven‘t heard anything that was very significant along those lines.

We do know now that Judge Delucchi felt that Mr. Jackson, the foreperson, doctor-lawyer, wanted to get off the jury.  Geragos brought that up, and Judge Delucchi confirmed it.  Yes, that‘s what I was thinking.

We also know that the key thing that got that man dismissed was his

reference to the atmosphere or the expected verdict, almost as if he was

implying that he least knew what the public wanted in this case.  Delucchi then asked him, could you put that aside?  Could you make sure that would not enter into your deliberations, and he said, I could not guarantee that.

ABRAMS:  Yes.

HOROWITZ:  That‘s a force.  He had to be removed.

ABRAMS:  Yes.  All right, well, look, this case is going to move forward on November the 30th with the penalty phase, and we‘ll be covering it.  Daniel Horowitz, Paul Pfingst, thanks very much.

Coming up...

PFINGST:  You‘re welcome.

ABRAMS:  ... remember we covered the story of Hooters suing a rival for stealing its concept?  One of you takes me to task for not showing enough respect to the Hooters‘ girls.  Your e-mails...

(COMMERCIAL BREAK)

ABRAMS:  Coming up, the 9/11 Commissions spent months coming up with a plan to make America safer.  The president and the Senate support it.  But now some House Republicans saying no.  I say it‘s not just wrong, but it‘s dangerous.  It‘s my “Closing Argument” coming up.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why it seems the safety and security of this nation is not as important to some House Republicans as longstanding political alliances.  The House‘s failure to pass a bill that would have enacted many of the changes suggested by the bipartisan 9/11 Commission is not just pigheaded and partisan.  It‘s downright dangerous.  The commission, five Republicans and five Democrats exhaustively researched why we were vulnerable to the 9/11 attacks.

Retracing every detail, interviewing everyone from President Bush to military leaders, among their unanimous findings that the CIA and other intelligence agencies essentially failed.  That we need a new cabinet level intelligence director to oversee the CIA and other intelligence agencies.  You would think that we could at least agree to remodel the way our intelligence agencies work together or failed to.  But no, a handful of powerful House Republicans have derailed the effort by welcoming back the status quo, saying the changes would—quote—“endanger troops in the field by taking away some of the Pentagon‘s authority over intelligence.”  I‘m certain we would hear that argument any time the Pentagon was set to lose anything.  It‘s just fear mongering in an effort to retain power.

A spokesperson for House Speaker Dennis Hastert was quoted in the “Pittsburgh Post-Gazette” asking what good is it to pass something where most of our members don‘t like it?  What good is it?  What good is it to adopt the recommendation of the only independent bipartisan commission that has reviewed 9/11?  What good is it to pass a law that every one from President Bush to the Senate to most members of the House think will make this nation safer?

They‘re treating our safety and security like just another political debate.  9/11 was in part a result of a warped worldview where we naively assumed our domestic law enforcement could tackle terrorists alone.  Well now it seems some would like the other extreme where we only rely on our military.  Considering some of their recent intelligence failures, it‘s a hard position to defend.

We have to reject both extremes and instead, as the 9/11 Commission suggested, we need a single official to create a uniform system where one hand knows what the leg is doing.  President Bush needs to push the rogues in his party with a sense of urgency that would reflect the reality that our lives are on the line.  The 9/11 commissioners have said that legislators who fail to act should be—quote—“held accountable.”  They should, but I would rather have them recognize their errant ways than say I told you so after a few condemn the rest of us to repeat the mistakes of September 10.

I‘ve had my say, now it‘s time for “Your Rebuttal”.  On Friday I took John Kerry to task for reportedly telling another network that the Osama bin Laden tape released days before the election was the cause of his defeat.  House minority leader Nancy Pelosi agreed with the statements.  I said that kind of talk emboldens terrorists to try to influence us in the future.

Earl Oliver writes, “Your logic concerning Osama bin Laden‘s broadcast statement just before the election doesn‘t hold water.  You implied that his intentions were not to help Bush.  The only possible result of his sudden reappearance would be to help Bush.”

I didn‘t imply anything of the sort.  I‘m not sure what bin Laden wanted, apart from wanting to be relevant and these statements ensure he wins in that regard.

I‘m out of time.  We‘ll get to the Hooters‘ letters tomorrow.  I‘m sure you‘re going to tune in for that.

All right.  I‘ll be back at our headquarters tomorrow.  “HARDBALL” up next.  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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