updated 11/29/2004 4:54:33 PM ET 2004-11-29T21:54:33

Guest: Daniel Horowitz, Paul Pfingst, Dean Johnson, Mercedes Colwin

DAN ABRAMS, HOST:  Coming up, your e-mails as we look back at the Scott Peterson case and preview the penalty phase.  Where the jury will decide if he lives or dies.

You have lots of questions.  We have lots of answers about exactly what can and will happen in the next phase of the Peterson trial.

And.

(BEGIN VIDEO CLIP)

SHARON ROCHA, LACI PETERSON‘S MOTHER:  Deprived of knowing Laci‘s son, our grandson and nephew.

UNIDENTIFIED FEMALE:  They both worked hard to get everything they had and they were a joy to behold and they adored each other.

(END VIDEO CLIP)

ABRAMS:  With family and friends on both sides expected to take the stand, we take a look at what they might say based on what they‘ve already said.  The program about justice starts now.

Hi everyone.  First up on the docket, while you were eating your Thanksgiving turkey at home Scott Peterson was eating his behind bars waiting for the penalty phase of his trial to begin.  The jurors to soon choose between life without parole or death.  The defense will look at the brighter side of his life while telling the jury life in prison will a stiff enough punishment.  The state expected to remind jurors of what Peterson did and how Laci‘s family will never recover.

But in the end the jury has to apply the law and decide whether the aggravating factors meaning reasons to execute outweigh the mitigating factors, reasons not to.  One of the most important factors, the nature and circumstance of the crime.  But does that help or hurt at this point?  First, “Dateline NBC‘s” Chris Hanson looks back at the facts and circumstances that led to the guilty verdict.

(BEGIN VIDEO TAPE)

CHRIS HANSON, NBC CORRESPONDENT (voice-over):  The first suggestion that anything might possibly be wrong came a little after 10:00 a.m. on December 24, 2002.  A neighbor of Scott and Laci Peterson‘s in Modesto, California, noticed the couple‘s golden retriever Mackenzie was off his leash and running free.  She thought little of it and put the dog in the Petersons‘ gated yard.  Late that afternoon Sharon Rocha, Laci Peterson‘s mother, was preparing a special Christmas Eve dinner for her family when the phone rang.  It was her son- in-law, Laci ‘s husband, Scott.

ROCHA:  And he said, hi, mom.  He said, is Laci over there?  And I said, no.  And he said, well, Laci is missing.  I thought, that was odd that he says he‘s Laci‘s missing.  Any other time you would have heard, I don‘t know where she is or I can‘t find her or something to that effect.  Scott said, Laci is missing.  I mean, I knew immediately by hearing the word “missing” that something terrible had happened.

HANSON:  Laci‘s mother frantically gathered her family and her daughter‘s friends to search the park where Scott Peterson said he thought Laci had gone to walk the dog.  By 5:48 p.m., a missing persons report on the 27-year-old substitute teacher was filed with the Modesto Police department.  Soon, hundreds of volunteers were looking for Laci.  The police searched local ponds and streams, combed the region, but the young woman who was pregnant, due to deliver in a little more than six weeks, had disappeared without a trace.

UNIDENTIFIED MALE:  It‘ s been a very puzzling case for us.

HANSON:  A police tracker dog picked up her scent at the house, headed toward the park and then quickly veered down a side street in a different direction.

RON CLOWARD, MODESTO POLICE DEPARTMENT:  That was an indication that when Laci last left the house, she left in a vehicle.

HANSON:  A vehicle, not Laci‘s.  Hers was in the driveway and her purse was in the house.  Where could she be?

By Christmas morning, volunteers were looking everywhere.  Posters began appearing all over Modesto.  In the weeks that followed, the search would soon extend across the entire region as far away as San Francisco Bay.  Scott Peterson left a handwritten note thanking all the community volunteers looking for his wife.  Both his family and Scott and Laci‘s friends talking about what a perfect couple they made.

UNIDENTIFIED FEMALE:  They are cute.  They‘re just adorable couple.

UNIDENTIFIED FEMALE:  They adore each other.

HANSON:  But the husband is always a person of interest when a wife goes missing.  And Modesto detectives had some questions for the 31 -year-old fertilizer salesman.  Scott‘s story was that he had left about 9:30 that Christmas Eve morning to do some sturgeon fishing in San Francisco Bay, putting a small boat in at a marina 90 miles north of his house.  He told police that when he said goodbye to his wife she told him she was going to take the dog for a walk.  He says that was the last time he saw her.  Some investigators were suspicious of Scott from the start but Laci‘s family stood behind him.  This interview with Laci‘ s mother aired on “Dateline” three weeks after Laci disappeared.

ROCHA:  The people who know Scott and Laci have no doubt whatsoever that he has nothing to do with her disappearance.

HANSON:  Family and friends posted a reward for information about Laci, to no avail.

RON GRANTSKI, LACI PETERSON‘S STEPFATHER:  When we put out the reward $500,000 and you don‘t get a call, nothing, it kind of dampens your hope.

HANSON:  And then a revelation that would change the investigation.  On January 24, a massage therapist named Amber Frey publicly announced she had been having an affair with Scott Peterson.

AMBER FREY, SCOTT PETERSON‘S LOVER:  We did have a romantic relationship.

HANSON:  A relationship she said that continued even after Laci disappeared.

FREY:  Scott told me he was not married.

HANSON:  After Amber Frey‘s public statement Scott Peterson said Laci knew all about the relationship.

PETERSON:  I did inform Laci about it .  I informed Amber about it after Laci‘s disappearance because she did not know that I was married.

HANSON:  But what Scott Peterson didn‘t know was that Amber Frey had gone to the police and told them about the affair weeks earlier.  Since then she had been taping her telephone conversations with Scott.

(BEGIN AUDIO TAPE)

PETERSON:  If you think I had something to do with her disappearance, that is so wrong.

FREY:  It is?

PETERSON:  Yes, it is.  I said that I lost my wife.

FREY:  Yes you did.

PETERSON:  Yes, I did.  And yes.

FREY:  How did you lose her then, before she was lost?  Explain that.

PETERSON:  There are different kinds of lost, Amber.

FREY:  Then explain your loss.

PETERSON:  I—I can‘t to you now.

(END AUDIO TAPE)

HANSON:  There were other doubts about Scott‘s story.  Right after Laci vanished, he told some people he had been playing golf and then told others he had been fishing off the Berkeley Marina.  And people were surprised to hear that less than a month after Laci disappeared, Scott traded in Laci‘s car at this Modesto dealership.  The salesman said it made him uncomfortable.  The dealer turned the car over to Laci‘s father.  Also around the same time, Scott approached one of the key volunteer organizers, Terri Western, who is also a real estate agent.

TERRI WESTERN, REAL ESTATE AGENT:  I said, “How are you doing this morning?”  And he goes, “I‘ve had a tough time” and I said “I‘m sorry, Scott.”  And he said, “I—I need to talk to you about selling the home.”  And I said, “This is not the time nor place, Scott.  You know, we can talk about that later.”

HANSON:  “Dateline‘s” Keith Morrison talked to investigators in early January about their interest in Peterson.

KEITH MORRISON, NBC CORRESPONDENT:  Do you consider him a suspect?

UNIDENTIFIED MALE:  We would love to eliminate Scott from this investigation.  We haven‘t been able to do that.

HANSON:  After Amber Frey came forward all those volunteers looking for Laci quietly departed.  Media coverage intensified.

UNIDENTIFIED MALE:  How come nobody saw you at he Berkeley Marina and nobody saw Laci walking the dog, huh?

HANSON:  It wasn‘t long before a Los Angeles area radio station was outside Peterson‘s house, harassing him.

UNIDENTIFIED MALE:  Why don‘t you tell the truth?

HANSON:  A little more than a month after Laci‘s disappearance, Peterson, who had not been charged with any crime, started giving interviews denying any knowledge of her fate.

PETERSON:  I had absolutely nothing to do with Laci‘s disappearance.  Yes I had a romantic relationship that was inappropriate and unfair to a lot of people.  And I apologize to everyone involved in that.

HANSON:  The police investigation plodded on, and the date Laci was due to have delivered her baby, February 10, 2003, came and went without any word.  On March 5, the missing person case was reclassified as a homicide investigation by the Modesto Police Department.  On April 13, four months after the search for Laci began, the worst possible news.  The body of Laci‘s unborn baby, who they planned to call Conner, had washed up on a beach along San Francisco Bay.  Two days later Laci‘s body was discovered by a dog walker on the shore of a nearby park.

UNIDENTIFIED MALE:  The scientific evidence concludes that this was Laci and the fetus.

HANSON:  The two bodies were recovered three to four miles north of the Berkeley Marina where Scott Peterson said he put his boat in for that Christmas Eve sturgeon fishing trip.  The place where the bodies were found is about 90 miles from the Petersons‘ home in Modesto.  On April 18, Good Friday, Scott Peterson was arrested.  At the time of his arrest, he was just 30 miles from the Mexican border, near his parents‘ home in the San Diego area.  He had changed his appearance.  He had dyed his hair and grown a goatee.  He was carrying his brother‘s driver‘s license and nearly $15,000 in cash.

The commotion surrounding Scott Peterson‘s return to Modesto caught the Modesto Police Department off guard.

KELLY HUSTON, MODESTO PD SPOKESMAN:  I have not seen the amount of public emotion, just before Scott arrived there were about 300 citizens out there shouting and holding signs, “murderer” and it was a mob scene.  We were holding people back to be able to drive down into our pit and booking area and get him in there as quick as we could.

UNIDENTIFIED FEMALE:  The people versus Scott Peterson.

HANSON:  Three days after his arrest Scott Peterson entered a plea of not guilty to two charges of murder.  After his arraignment, Scott Peterson‘s family defended their son, accusing law enforcement of perpetrating an injustice.

LEE PETERSON, SCOTT‘S FATHER:  A lot of people are not fooled by what went on here.  This is just a travesty.

HANSON:  And that same afternoon, Laci‘s mother spoke to reporters.

SHARON ROCHA:  Soon after Laci went missing, I made a promise to her that if she had been harmed we will seek justice for her and Conner and make sure that that person responsible for their deaths will be punished.

HANSON:  It would be more than a year before Scott Peterson‘s case came to trial.

(END VIDEO TAPE)

ABRAMS:  “Dateline NBC”‘s Chris Hanson reporting and of course after more than five months and 180 witnesses, 30 hours of deliberation, dismissed jurors, the jury came back with two guilty verdicts, first-degree murder for Laci and second-degree murder for her unborn son, Conner.  When we come back, my legal team is here.  We‘ll walk through the facts, the jury used to find Peterson guilty and ask which way will they cut when it comes to the circumstances of the crime in the penalty phase?  And both Scott Peterson and Laci‘s family expected to testify.  We look at what they‘ve already said publicly and what they‘re allowed to say now.  Plus, a lot of your writing in with questions on the penalty phase, on thoughts on the trial.  Many of you have said about the way Peterson‘s lawyer Mark Geragos handled the defense, your e-mails.

ABRAMS REPORT on MSNBC.

(COMMERCIAL BREAK)

UNIDENTIFIED FEMALE:  State of California versus Scott Peterson.  We the jury in the above-entitled cause find the defendant Scott Lee Peterson guilty of the crime of murder of Laci Denise Peterson.

ABRAMS:  Guilty.  We just looked back at the circumstances of the crime.  The murders of Laci Peterson and her unborn son and the facts of the crime could be the determinative factor in deciding whether Scott Peterson lives or dies.  Before they are sent to deliberate the judge will tell jurors that among other things they can consider the nature and circumstances of the crime.  Also whether Peterson has a history of criminal activity involving violence or threat of violence.  He doesn‘t.  Whether he has a prior felony conviction.  No.  And any other circumstance that extenuates the gravity of the crime, even though it is not a legal excuse for it.

My take.  Since he has no criminal record this is all going to come down to the nature and circumstance of the crime.  And I think with so many questions lurking about exactly how the murder took place, when and where, that jurors will not feel they know enough about the nature and circumstance to impose the death penalty.  Joining me now, former San Mateo County prosecutor Dean Johnson, criminal defense attorney Daniel Horowitz, also.  Both of them watched the entirety trial.  Mercedes Colwin and MSNBC analyst and former San Diego County DA Paul Pfingst.  Daniel, it seems to me the crucial issue here is the nature and circumstance of the crime because all of the other factors seem to help Scott Peterson, right?

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  Exactly, Dan.  And I think the circumstances of the crime are things broader than just the killing of his wife and baby.  Things like the delaying the investigation by lying.  Making the Rocha‘s dangle in the wind while he claimed did not know where his wife was .  That can be considered by the jury as an added cruelty deserving death.

ABRAMS:  Let me read this from the search warrant affidavit.  This is, again, another item we obtained.  Evidence at the scene suggested a, quote, soft kill where there would be limited blood evidence at the scene.  The fact that Scott Peterson had no significant injuries aside from a scuffed knuckle indicates the victim did not likely have the ability to take defensive action.  Laci may have been drugged prior to suffocation or poisoning or otherwise incapacitated without a struggle.  Now, Paul Pfingst, that didn‘t come up in the trial, per se.  But that certainly has got to be going through these jurors‘ minds that maybe there wasn‘t a struggle.  Does that help Scott Peterson a lot?

PAUL PFINGST, FORMER DA:  If I were Mark Geragos that would be one of my main points is that there is no evidence that Laci Peterson ever suffered prior to her death or she was even aware that she was being killed.  This was not a crime of savage brutality.  A crime of extraordinary violence.  And I think that is something that works very well for him.

ABRAMS:  So, Dean, how do the prosecutors deal with that?

DEAN JOHNSON, FORMER PROSECUTOR:  Well, you know, as much as I respect Paul I have to disagree with him.  The last point made by the prosecution was that Laci did struggle, that possibly the scratches on Scott‘s fingers were the result of her fighting back as she was choked or strangled.  So there is an argument there was struggle.  But, Paul, bottom line is correct.  This is not the kind of savage crime that normally we see when we see a death penalty verdict in this county.

MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY:  You know what?  I think some of the evidence that came in, Dan, was that strangulation is a horrible way to die.  I know during the closing the prosecutor basically said it takes a while to actually snuff someone‘s life out in that manner so as much as we want to try to sugar coat it and say, well, she didn‘t really struggle, it is a terrible way to die.

PFINGST:  Dan, I‘ve prosecuted death penalty cases and it‘s nothing like being able to say to the jury when he stuck that knife in her stomach, cut her throat, blew his brains out, when, and you create that vivid picture for a jury how they sit back and say yes you‘re right, this person is a brute.  Not being able to do that is something that is hard for prosecutors to get around.

ABRAMS:  Daniel.  Go ahead.

HOROWITZ:  The baby suffocating, as Laci is dead, little Conner struggling for breath, and that‘s what the prosecutor can use to get death.

ABRAMS:  Dean, can they use Conner‘s death here, Dean, even though the first-degree murder conviction, the one that is leading to the death penalty phase, was the killing of Laci, not the killing of Conner, but they can still use the killing of Conner in this penalty phase, can they not?

JOHNSON:  Well, actually, they can talk about the fact that it was a double murder but the thing that is going to really be an aggravating circumstance is the manner of that murder and the fact that there really is no more vivid picture than Laci Peterson struggling as she was smothered to save not only her own life but the life of her unborn son.  I can‘t imagine anything that sticks in a jury‘s mind better than that.

ABRAMS:  Bottom line, Mercedes, does Mark Geragos do this all himself or say you know what?  Maybe I‘m not so credible with this jury anymore and get one of his colleagues to do the penalty phase?

COLWIN:  I would consider putting Pat Harris—certainly he wasn‘t there.  I think that hurts him considerably that he wasn‘t there for the verdict.  I think it certainly spoke volumes to that jury.  How could you not be there?  I would suggest Pat Harris.  I think there were some jurors that don‘t like Mark Geragos.  I know there were a few that any time Mark spoke they sort of crossed their arms and weren‘t happy with him.

ABRAMS:  What do you think, Dean?

JOHNSON:  Well, I think that might not be a bad idea.  I would have preferred to bring in a third lawyer at this point because I don‘t think either Pat or Mark has a whole lot of credibility.  Remember, there is a quirk in California law that allows both of the defense attorneys to argue in the penalty phase.

ABRAMS:  All right.  Our legal team will stick around.  Coming up, you speak.  Your emails and questions.  You speak.  Plus ...

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Laci not only taught us proper etiquette but how to laugh.  And not just giggle but to laugh loud and often.

(END VIDEO CLIP)

ABRAMS:  Laci‘s family and friends spoke out in the days, weeks, months after she went missing and again after her body was found.  They are expected to be on the stand for the penalty phase.  We‘ll take a look at what they may say.

(COMMERCIAL BREAK)

(BEGIN VIDEO TAPE)

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

PETERSON:  No, no.  Oh God no.  Violence toward women is unapproachable.  It is the most disgusting act to me.

(END VIDEO TAPE)

ABRAMS:  No question about that.  We‘re back.  We‘ll go right to your emails about the penalty phase, what to expect.  Linda from Maryland writes, “Could the prosecution take the death penalty choice off the table, opting only for life in prison without parole?  If this could be done, wouldn‘t this eliminate a possible appeal relating to the jurors being influenced by goings-on outside the courtroom after the verdict had been announced?”  Daniel Horowitz?

HOROWITZ:  They could take it off the table.  Politically they cannot.  But you‘re right.  If they did take it off the table the appeal would be less rigorous.  So you‘re correct.

ABRAMS:  George Snow from New York writes “Besides the obvious (life or death) what‘s the difference between life without parole and a death sentence?  Meaning, are death prisoners allowed visitors?  If Scott were to meet some psycho who wanted to marry and reform him, could he marry and have conjugal visits on death row?  If he‘s stuck in a cell without visitors for the next 50 years on death row, that‘s better than life without parole.”  Paul Pfingst?

PFINGST:  Death row in California is at San Quentin prison and as variety of tiers at the prison.  And it is a very different place than the other parts of the prison, because the prisoners don‘t have a chance to go out in the yard and do various other things that prisoners can.  Ok.  So it is much less attractive as a place to be.  None of it is attractive.

ABRAMS:  Can they get visitors?

PFINGST:  Yes.  You can get visitors.  When you‘re life without parole absolutely.  Conjugal visits I don‘t know.

ABRAMS:  Dean, do you know, conjugal visits if you‘re on death row?  I assume not.

JOHNSON:  I assume not.  And life is very different.  If you are on one of the condemned wing you go everywhere completely in chains escorted by four guards.  Life without possibility of parole presents some interesting possibilities here for poetic justice because if Scott were housed at San Quentin on an L block he would get to go out once every day.  The exercise yard where he would be is 300 yards from the location of the search for Laci Peterson.

ABRAMS:  Does anyone know, Daniel, do you know, are they allowed to get married if he wanted to, quote, “if he met some psycho”?

HOROWITZ:  The answer is if you get L block you can get married but there are no contact visits.  It used to be able to work your security level down and actually have conjugal visits.  No longer.

ABRAMS:  All right.  Linda Gene Goldstein in Illinois.  “If Scott gets the death penalty, and I pray he will, he will be living on death row for many years.  How long do you think it will take the State of California, which doesn‘t rush to impose execution, to execute him?”  Mercedes?

COLWIN:  I think the average is 10-15 years which is really awful.  There are a series of appeals and I think Dean and Dan could probably answer this better.  I don‘t recall.  I think it may have been a few years ago that was the first execution in decades.

ABRAMS:  Daniel is an expert.  Go ahead.

HOROWITZ:  He won‘t even get an attorney for the appeal for five years.  So it can take 15-20 years and then if new evidence is discovered you can delay again and again and again.

COLWIN:  But you know what, Dan?  He actually might be better—this is ironic.  If he is on death row he has higher security.  If Scott ever gets into the general population which I doubt he will, it will be the end of him.  Undoubtedly.

PFINGST:  I‘ve been to death row up in San Quentin.  That is not a good place to be.

ABRAMS:  And even at Folsom where he would go with life without parole there are certain areas he could be segregated with a bunch of other high risk prisoners.

COLWIN:  Sure.  And what a trophy it would be for these men to snuff out his life.

JOHNSON:  Dan?

ABRAMS:  Very quickly go ahead.

JOHNSON:  At this point, if he gets life—if he gets life without possibility of parole he goes into a unit called “sensitive needs,” that‘s our most recent name for it, and will be fairly safe because all of the guys in sensitive needs don‘t want to commit violence because then they go out of sensitive needs.

ABRAMS:  Fair enough.  All right.  Everyone is going to stay with us.  Coming up, Laci Peterson‘s family expected to explain to the jury the impact the crime had on their lives.  We‘ll show you a tape of what they may say.  And the Peterson family as well.  We‘ll look back at what they‘ve said since the case began.  Your emails to AbramsReport@msnbc.com.  Please include your name and where you‘re writing from.  Back in a moment.

rMDNM_                (COMMERCIAL BREAK)

ABRAMS:  Coming up, jurors deciding whether Scott Peterson should get the death penalty are likely to hear from Laci‘s family and friends.  We‘ll show you what they very well may say.

And we‘re going to be talking about more of your e-mails.  First this.

(NEWSBREAK)

(BEGIN VIDEO CLIP)

SCOTT PETERSON, CONVICTED OF WIFE‘S MURDER:  Question my morals and my poor decision making.  That‘s fine.  But don‘t stop looking for Laci.  She‘s out there somewhere.  She shouldn‘t be.  She should be with our family.

(END VIDEO CLIP)

ABRAMS:  Surely, Laci Peterson‘s family would agree with the statement that Laci should be home with them. 

When Peterson is brought back to court for the penalty phase, he‘ll hear more testimony from those who loved Laci: her family, possibly her friends expected to explain the impact Peterson‘s crime has had on their lives. 

We take a look back at comments made during the trial to see the kinds of things we‘re likely to hear when court resumes. 

(BEGIN VIDEO CLIP)

SHARON ROCHA, LACI‘S MOTHER:  I love my daughter so much.  I miss her every minute of every day.  My heart aches for her and Conner.  Without them, there is a huge void in my life. 

BRENT ROCHA, LACI‘S BROTHER:  I miss your beautiful smile and your fun-loving personality.  Every time we were together I could feel the unconditional love between the both of us.  As your older brother, I only wish that I had the opportunity to be there to defend you from the person that decided to take you away from me. 

RENEE TOMLINSON, LACI‘S FRIEND:  We will never truly have closure, because each day there will always be one phone call that we can‘t make, one funny story untold, one conversation unspoken with our best friend. 

S. ROCHA:  Laci meant the world to me.  She was my only daughter.  She was my best friend.  We miss her beautiful smile, her laughter, her love and her kind and loving ways.  I miss seeing her, talking to her and hugging her. 

We‘ve been deprived of meeting and knowing Laci‘s son, our grandson and nephew. 

TOMLINSON:  Now we will never know his face, never see his smile and never hear his cry. 

HEATHER RICHARDSON, LACI‘S FRIEND:  I just remember her as such—such a bright light, and she really, really lit up a room when she walked in.  You knew that she was there.  And she was—she was just such a fun person to be around.  Everyone—everyone loved Laci. 

TOMLINSON:  Laci not only taught us proper etiquette but how to laugh. 

And not just giggle but to laugh loud and often. 

B. ROCHA:  We talked about our children growing up together and spending summers at each other‘s house.  Now that you and Conner have been taken away from me I realize that my children will not have cousins to grow up with, and family events will feel very lonely without you and Conner. 

S. ROCHA:  I can only hope that the sound of Laci‘s voice begging for her life and begging for the life of her unborn child is heard over and over and over again in the mind of that person every day for the rest of his life. 

(END VIDEOTAPE)

ABRAMS:  God, it is so hard to listen to that, and you figure, you realize it‘s not that surprising.  People say how emotional the penalty phase in this case is going to be.  I mean, that‘s the kind of stuff you‘re going to hear. 

All right.  Let me go right back to your e-mails about the significance of that and the context of this penalty phase.

Pam from Illinois: “During the penalty phase, will they ask Sharon Rocha if she wants Scott Peterson sentenced to death?”

Paul Pfingst.

PFINGST:  No.

ABRAMS:  Can‘t do it?

PFINGST:  No, they can‘t ask that.  They can ask about the impact that this death has had on her and her family, but they can‘t ask her personally about that. 

ABRAMS:  Kathy Yost from Pennsylvania: “Are all of Laci‘s family members and friends expected to indicate a preference for the death sentence rather than a life sentence for Scott?  Is Amber Frey expected to be at any of the proceedings next week?”

I don‘t think Amber Frey is expected to be at any of the proceedings next week, Kathy. 

But, Dean, is there going to be a way for the people who are testifying on behalf of the prosecution to indicate to these jurors that they‘re there because they want death?  Or does their mere presence help demonstrate that?

JOHNSON:  Well, as Paul pointed out, you can‘t, as a—as a member of the family, say what your preference is.  But I think the implication will be clear. 

Sharon Rocha‘s testimony is going to be heart-wrenching.  She‘s going to be the most important person in that courtroom, and that jury will do whatever they think that she wants.  And I think she‘s going to make it clear what she wants, as far as a disposition of this case. 

ABRAMS:  Bill McManus in Hawaii: “Can the Rocha family sue Scott Peterson in civil court for wrongful death of Laci and Conner, even though he has been convicted in criminal court?  If so, and it came out that Peterson‘s family conspired in any way after the fact, i.e. tried to help him escape to Mexico, attempted to aid him by deceiving authorities, et cetera, could they be brought into the suit?”

All right.  Mercedes, let‘s take this one at a time. 

COLWIN:  Sure. 

ABRAMS:  First of all, they can sue them right?

COLWIN:  Absolutely. 

ABRAMS:  In court.

COLWIN:  Wrongful death, intentional infliction of emotional distress. 

There‘s lots of causes of action.  So undoubtedly. 

ABRAMS:  What about the Peterson family?  I mean, there have been suggestions that the Peterson family may have helped him cover it up.  Could they be sued?

COLWIN:  There, that‘s a little attenuated.  I mean, they could make this claim for intentional infliction of emotional distress, but there hasn‘t really been much proof. 

What they will do is they‘re going to take their testimony.  They‘ll bring them in for depositions, and they‘re going to take their sworn testimony and sort of get into those areas.  And maybe later on amend the complaint.  But initially, it‘ll just be Scott. 

ABRAMS:  Diane in Pennsylvania: “What will happen to Laci‘s house?”Daniel?

HOROWITZ:  I understand that it will be sold and then the money will go to the lawsuit winners, which is the Rocha family.  Scott will get nothing. 

ABRAMS:  Yes.  Bottom line is now that he‘s convicted, his rights are significantly curtailed when it comes to financial compensation, et cetera, right?

HOROWITZ:  Of course.  He gets no inheritance and his share of the house is going to be gone in a split second.  The only interesting issue is will Mark Geragos try to take that money as legal fees?  I don‘t think so. 

ABRAMS:  That‘s interesting. 

COLWIN:  Not with this outcome, Daniel. 

PFINGST:  A new bill was passed in California in the legislature a couple years ago.  He has no rights to any of the property.  He can‘t get a dime. 

ABRAMS:  All right.  Legal team is going to stick around.  We‘ve heard from Laci‘s family.  Next, what Scott Peterson‘s family and friends have said in the past and what their testimony on the stand could be. 

Now, what if the Petersons lied to protect their son?  Could they face perjury charges?  That‘s what one of you asked. 

You weigh in also on attorney Mark Geragos.  Did the Petersons have a case against him at this point?  Coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  What made that day the day to tell her?

S. PETERSON:  Just because it was the right thing to do, and as you know, when you‘re not doing the right thing, it just eats you up, you know?  You feel sick to your stomach and you can‘t function and you have a hard time, you know, looking at someone. 

(END VIDEO CLIP)

ABRAMS:  It was the right thing to do.  That‘s why Scott Peterson says he told Laci about his affair with Amber Frey. 

During the trial, Mark Geragos, his attorney, tried to convince the jury that Peterson loved kids and was looking forward to one of his own, even though he was having an affair and told Amber that her child was enough for him. 

Geragos repeatedly said Peterson as cad not a killer.  So how will he convince jurors in the penalty phase that his cad and now killer‘s life is worth sparing?

His family and friends will play an important role.  Now we look back to see what they may say during the penalty phase. 

(BEGIN VIDEOTAPE)

LEE PETERSON, SCOTT‘S FATHER:  We‘re a good family.  We don‘t have any record of anything. 

JACKIE PETERSON, SCOTT‘S MOTHER:  He doesn‘t either. 

L. PETERSON:  He doesn‘t.  There was no domestic violence. 

J. PETERSON:  No drugs. 

L. PETERSON:  No.  Nothing in his past. 

J. PETERSON:  No financial problems.  He worked three jobs to put him himself through college and helped his wife through college.  They both worked hard to get everything they‘ve had, and they were a joy to behold.  And they adored each other. 

Laci called me mom.  She was like a daughter to me.  We miss her and we love her. 

It was wonderful.  They are very much in love with each other.  They dote on each other.  They were very excited about their pregnancy.  They were looking forward to this child.  And they just treat each other with so much respect and love and care. 

In his whole 30 years there‘s never been a temper.  It‘s—you know, it‘s just not even in his nature. 

L. PETERSON:  You know his background and what a wonderful boy he is and has been, all through his life.  He‘s never had, you know, I mean, the kid is—he‘s a perfect kid all the way through. 

J. PETERSON:  We teased him about it.  We always teased him about how after they had children, wait till you have kids.  You won‘t be able to do all these wonderful things for each other, but I think they would have.  She was just a person that could make time for that, and Scott made time for her.  And she came first in his life and he really adored her. 

L. PETERSON:  What was done here is just a terrible injustice.

(END VIDEOTAPE) 

ABRAMS:  All right.  Before I go back to the e-mails, Mercedes Colwin, they were in love.  They had this great relationship, et cetera.  Is Jackie Peterson still going to be able to talk about that, to sort of subtly tell the jury, “Look, we don‘t buy this?”  Or are they going to stay away from it?

COLWIN:  I think it would be so dangerous and really anger that jury if she goes down that path.  Just concentrate on Scott: no spousal abuse, no alcohol abuse, no drug abuse.  He was a great child.  He went to college.  He got a degree.  I mean, just focus entirely on Scott.  That jury doesn‘t want to hear it. 

ABRAMS:  Patty—Patty from Texas asks, “Since the jury obviously did not believe the Petersons when they testified about his buying a car in his mom‘s name, having possession of his brother‘s I.D., and the Mexican money, are there any chances they may face perjury charges?” 

Dean Johnson?

JOHNSON:  No, not really.  In San Mateo County, there are very few perjury convictions.  Putting aside all the difficulties with prosecuting any perjury case, you‘ve got the family of somebody who is facing—facing life in prison or death.  You expect the family to get up and support him. 

This case would have zero jury appeal.  If it came across my desk, it wouldn‘t even be filed. 

ABRAMS:  Yes.  They‘re not going to do anything. 

Susan Martin in Massachusetts: “Does Scott Peterson have a case against Mark Geragos for bad legal strategies?”

Daniel Horowitz?

HOROWITZ:  Not really.  I mean, Geragos was overblown in what he promised the jury and delivered very little.  But within the standard of effective assistance of counsel, he was legally effective. 

Now let‘s see how he does in penalty phase.  If he totally blows this and Scott gets death, then you‘ll see all these appellate lawyers going after Geragos.  It will be a real turn-around for a man who was really on top of the world with this case at the beginning. 

ABRAMS:  Mike Maiman from Maryland: “I was seriously troubled by the cheering crowds present for the Peterson verdict.  I saw a real possibility of a riot if the verdict had been not guilty, and I also worry about the not so subtle pressure such crowds put on the jury, who may fear for their own safety.  My theory on the reason for this phenomenon is that the strident nature of the commentators on your program and others fan the passions of people and leads to this.”

COLWIN:  Look at that. 

ABRAMS:  Mike, let me tell you something. 

COLWIN:  It‘s all our fault, Dan. 

ABRAMS:  Exactly.  Let me tell you something, Mike.  Remember, we had defense attorneys on every time with prosecutors, defense attorneys who would defend Scott Peterson up and down.  

So to suggest it was only one side presented, maybe, Mike, just maybe, people followed the evidence in this case and as a result felt the way they did based on that. 

All right.  Gordon Miller in New York: “Geragos is just as much to blame from the inundated media coverage.  He didn‘t seem to mind the media when it was to his advantage.  What about that fishing boat, Geragos?  As if you didn‘t think the media wasn‘t going to cover it!  It‘s your own undoing that the fishing boat, just like your client‘s lies, backfired.”

You know, Paul Pfingst this is that boat that Mark Geragos put out on a property he owned.  This is a model of what seemed to be the actual boat. 

And I guess Geragos was trying to show that—before he had to pull it out—that the body couldn‘t have been dumped over the side.  This ended up being a colossal error, right?

PFINGST:  Well, also, the jury never got a chance to see it.  They didn‘t know it happened.  So it was a nonevent for them. 

Mark Geragos has a little bit of live by the sword die by the sword using the media, I think, in this case.  There‘s a good argument to be made.  He‘s died more by the sword than lived by the sword. 

COLWIN:  Dan, there‘s also a complaint filed against Geragos for it, an ethical violation. 

ABRAMS:  Yes.  Yes, that‘s going to go nowhere.  I mean, that‘s a nice sort of P.R. stunt.  I‘m not saying that—look, I think it was—it was ridiculous.  It was bad form.  It was bad taste.  I went after him for doing it.

But the idea that somehow the bar is going to sanction him.  I mean, he can say, “Look, I had nowhere to put it.”  There‘s just too many ways he can get out of it. 

COLWIN:  Sure. 

ABRAMS:  So all right, let‘s go to G.W. Smith from Florida: “Did Peterson ever volunteer to take a lie detector test?  Why now after being found guilty—why not now after being found guilty, if he really is innocent?”

Well, here, let me read you something.  This is from the report of Detective Jacobson, again, stuff that we obtained.  Didn‘t come in in court. 

“On 12-25-2002, I scheduled a polygraph,” he said.  “Scott agreed to participate.  About 30 minutes before the polygraph, Scott advised me on the advice of his father he was going to decline to take the polygraph.”

Al right.  So, Daniel Horowitz, is this the time?  If Scott Peterson really is innocent, with the public convinced he is guilty, if you were convinced your client was actually innocent would you say to him, “Look, we need to do something here?  Let‘s just take a polygraph?”

HOROWITZ:  You know, Dan, that would be a great idea.  Now, I know the Judge Delucchi well.  He would not allow that to be introduced in the penalty phase. 

ABRAMS:  Right. 

HOROWITZ:  But that might be error, because after all, anything that‘s mitigating under Factor K comes in, and a polygraph can come in for whatever validity it has.  I would do it. 

ABRAMS:  Remember, the family—The family of JonBenet Ramsey did this. 

HOROWITZ:  No.

ABRAMS:  Just for P.R. purposes, though.  The family of JonBenet Ramsey took it.  There was one that was inconclusive and one that seemed to demonstrate that they were telling the truth.  But everyone agrees that this, it‘s not going to happen.  It‘s not going to come in.

HOROWITZ:  No, no. 

ABRAMS:  All right.  Everyone is going to stick around, because up next, more of your e-mails.  Got a lot of good questions coming up about the jury‘s role in all of this.  How will sort of letting them go home for Thanksgiving impact the deliberations?

It‘s all coming up, your e-mails.

(COMMERCIAL BREAK)

ABRAMS:  One of you asks whether, in the penalty phase of Scott Peterson‘s case, the jurors will review the same evidence as they looked at in the guilt phase.  Our legal team weighs in. 

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  With the penalty phase in the Scott Peterson case beginning next week, we are taking your questions and comments. 

Let‘s go right to Christine Jones in California: “Since the judge has excused the jury for a week and this case is all over the different newscasts, has the judge left the door open for the appeal to be successful?  How can the jury not be contaminated at this point?”

Paul Pfingst, should this judge have either moved things along more quickly or sequestered the jury?

PFINGST:  Well, I‘m in favor of moving along more quickly.  Sequestering the jury, that‘s sort of up in the air.  That brings a lot of problems with it.  It doesn‘t—doesn‘t get rid of all your problems.  It brings new problems. 

But the question is how will the jurors not look?  The reality is in a death penalty case, both the prosecutors and defense attorneys and the judge and the jurors now at this stage really feel the weight of it.  It is a big burden on your shoulders. 

And I think jurors take this real seriously.  They know they‘re going to be asked to make a tough call. 

COLWIN:  In terms of the appeal, Dan, there will be a curative obstruction by the judge.  And we‘ll just basically say if you saw anything, read anything, heard anything, wipe it out of your mind.  We‘ll begin anew.

ABRAMS:  But he told them you better not.  So all right.

COLWIN:  I know, but it could have been inadvertent. 

ABRAMS:  Yes, yes. 

Laura Miller of Virginia: “Having separate juries for the guilt and sentencing phases makes no sense.  What if after sitting through the trial, a member of the sentencing jury thinks the defendant should have been acquitted?  How can that person then deliberate as to the sentence of what they believe to be an innocent person?  The same jury that hears all the facts in evidence regarding a crime should then determine the sentence.”

Well, Laura, they do.  They do.

But the question—what about that question, Dean, that what if the juror changes his or her mind in the context of the sentencing and says, “We got it wrong on guilt”?

JOHNSON:  Well, you know, they are told by the judge that they cannot do that, that they have to now conclusively presume the defendant guilty.  If the juror changes his or her mind at this point, that would be juror misconduct, and they would have to—that would have to be taken care of by replacing that juror. 

PFINGST:  But there is some wiggle room here with a lingering doubt instruction. 

JOHNSON:  If I can just finish here.  You know, the viewer makes a very astute point, though, that it is important sometimes and advantageous to the defendant to have that same guilt phase jury decide the penalty phase, contrary to what many defense attorneys say, because of the lingering doubt factor which they can consider.

And of course, only they know the evidence and whether there was a lingering doubt at the guilt phase. 

ABRAMS:  All right.  Let me go to Linda Matson here: “Justin Falconer”

·         remember former juror No. 5? -- “was released from the Peterson jury because he ran his big, fat mouth.  I consider it the biggest mistake Judge Delucchi has made to not put a gag on this blabbermouth.”

Daniel Horowitz, now it would have been—I‘ve seen judges do it, but it would have been a long time to put a gag on him. 

HOROWITZ:  I think so.  Also, what harm has Justin Falconer done?  He has educated us.  He‘s entertained us.  He‘s a man who...

ABRAMS:  Let me tell you.  You‘re going to get so much hate mail now, Daniel.  Every time we have Justin Falconer on, we get so many angry people who, even though I take him to task every time, “How can you put him on the show?  How can you put him on the show?”

HOROWITZ:  I know.  You‘ve got to love him. 

ABRAMS:  All right.  Stephanie Shaver, here.  “When the jury goes in to deliberate the appropriate penalty Mr. Peterson should serve, do they once again review all the materials, evidence, exhibits and testimony that was previously looked upon while they were in initial deliberations?”

Mercedes, yes, right?

COLWIN:  They could.  But I mean, in all likelihood they‘re just going to concentrate on the testimony that‘s going to come before them, which is all the emotional impact. 

ABRAMS:  But, Paul, nature and circumstance of the crime.  Big factor, right?

PFINGST:  The standard is for the prosecutors to introduce in the penalty phase all the—all the evidence that was introduced into the guilt phase so that the jury can consider that in the penalty phase.  It‘s a technical requirement, but they—they already made that decision.  They already know that so they‘ll move on to the other stuff. 

ABRAMS:  Time for one more question.  “It‘s been reported that Juror No. 5 (lawyer-doctor) who was dismissed took over 19 notebooks full of notes during the trial.  What happens to those notebooks?  Are they the property of the courts or do they belong to the individual?  Did he take the notebooks with him when he was dismissed?”

He did not.  And Daniel Horowitz, very quickly, they don‘t belong to him right?

HOROWITZ:  No.  They belong to the court and to the appellate record. 

ABRAMS:  Dean Johnson, Daniel Horowitz, Mercedes Colwin and Paul Pfingst, thank you.  And thanks to all of you who sent in all of your questions.  Sorry we didn‘t get to all of you, but try to get to us here.

Remember, you can send us your e-mails, AbramsReport, one word, at MSNBC.com.  We go through them at the end of the show. 

Remember, we‘re going to be covering the penalty phase of this case beginning next week.  The program about justice the place to watch. 

Coming up next, “HARDBALL” with Chris Matthews.  Have a great weekend.

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

END   

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