updated 12/6/2004 1:40:29 PM ET 2004-12-06T18:40:29

Guest: Stacy Brown, Harvey Levin, Jim Thomas, Paul Pfingst, Leslie Crocker Snyder, Daniel Horowitz, David Wohl, Shaun Assael, Michael Molfetto

DAN ABRAMS, HOST:  Coming up—more than a year after his arrest, sheriffs search Michael Jackson‘s ranch again and we‘re told it‘s related to DNA evidence.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  The first time they took his computer, audio and videotapes along with legal documents and portions of his bed.  Sources say they‘re looking for something connected to the search of that bed.  This just a month before Jackson‘s child molestation trial is set to begin.  Why so much so late?

And Scott Peterson‘s half brother on the stand today waxing poetic about growing up with Scott as his doting little brother—the 14th witness to testify for Peterson.  Could the defense be doing too much of a good thing?

Plus baseball and Yankee fans reeling after former MVP and current Yankee slugger Jason Giambi admits to taking steroids after repeated public denials, but what does it mean legally?  And can the Yankees now get out of his multi-million dollar contract?

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, investigators swarm Michael Jackson‘s Neverland Ranch this morning for the second time in just over a year.  Sources tell us that investigators executed a search warrant in connection in some way with DNA evidence.  And we‘re told that at least in part, it‘s related to a previous search of Michael Jackson‘s bed.

Now, that may sound a little bit ambiguous.  Problem is that‘s all we know.  There is a big gag order in this case and as a result, the information is not exactly forthcoming.  The raid comes just days before prosecutors in his child molestation trial are supposed to turn over all of the evidence that they have seized in this case to the defense.

There are conflicting reports about whether Jackson was at Neverland at the time of the raid.  Now I‘m literally told a definitive yes by some.  There was a definitive no by others.  It sure sounds like at this point that he was there.  But Jackson‘s trial on charges of conspiracy, child molestation and giving alcohol to the alleged victim start—set to start next month.

“My Take”—they‘ve got to have something new here.  It is too late to be just tying up loose ends.  Remember, a judge signed off on this warrant.  This was not just the police going there.  Joining me now is the former Santa Barbara County sheriff and MSNBC analyst Jim Thomas—he led the 1993 investigation of Jackson—former San Diego county D.A. and MSNBC analyst, Paul Pfingst, Jackson family friend and NBC analyst Stacy Brown, and attorney and executive producer of the syndicated program “Celebrity Justice”, Harvey Levin.

All right.  Stacy let me start with you.  You‘ve had an opportunity to speak to a lot of friends and family members, lawyers, whoever it may be on the Jackson side.  What are they telling you?

STACY BROWN, JACKSON FAMILY FRIEND:  Well they‘re telling me that Michael indeed was at Neverland this morning at the time of the raid.  He was allowed to move into a guesthouse while they were raiding the ranch and that there was no—other than that, there was no physical contact between authorities and Michael Jackson.

ABRAMS:  Any indications of what they were looking for?

BROWN:  Well, I was told again that they did take some material out of Neverland, loaded into a police van and it‘s not certain yet what they took.

ABRAMS:  Harvey Levin, what do you hear?

HARVEY LEVIN, EXECUTIVE PRODUCER, “CELEBRITY JUSTICE”:  Well Dan, it is puzzling because of this gag order, but you know, the clock is ticking in this case.  On Monday prosecutors have to turn all of the evidence over to the defense or else it may not be admissible in the trial.  So what I‘m hearing is that so far prosecutors don‘t have any kind of smoking gun DNA evidence against Michael Jackson and that means nothing connecting him directly to alleged child molestation with respect to the DNA.

And I‘m kind of hearing, Dan, what you‘re hearing—that this may somehow have to do with this mattress, a portion of which was seized nearly a year ago.  I did some checking today and I was told by someone connected with Jackson that Jackson actually saved the remainder of that mattress as he did everything else in the case connected with the raid for the trial.  So the mattress may have been there and that may have been what they wanted.

ABRAMS:  Yes.  I mean I think some people when they say, you know, it may be connected to something in the bed, you know, they say Michael Jackson can‘t be using the same mattress.  That thing is in pieces, I mean you know...

LEVIN:  Yes.

ABRAMS:  There‘s no way that mattress is being utilized.  Stacy, anything else on sort of what‘s left in—I mean it‘s true, is it not, that Jackson‘s team is keeping everything that‘s remaining from those initial searches, right?  They‘re not throwing it away.

BROWN:  Well that‘s what I understand.  I‘ve been told that they‘re keeping everything because for their case, to rebut whatever the prosecution may have.

ABRAMS:  Jim Thomas, anything—know anything else from the sheriff‘s point of view?  And if you don‘t, what does this tell you in sort of the broader sense?

JIM THOMAS, MSNBC ANALYST:  Well first of all, the search team is still here and it‘s been six hours, so I‘ve got to believe that they‘re looking for more than just a part of a mattress.  But this has to be something really important Dan.  I‘ve seen this judge chastise the D.A.  twice in open court about taking so long and serving so many warrants.  And for him to authorize a warrant to be served on the Friday before the Monday that discovery is supposed to be in is just really unusual.

ABRAMS:  Yes, I should say that Jim is there at Neverland.  I‘m sure as I pointed out he‘s not a welcome guest at Neverland, considering he led the ‘93 search—the investigation of this case.  But, Jim, what about your experience from ‘93?  I mean the bottom line is, you know, they had already sort of taken photographs of Michael Jackson, had taken DNA from Michael Jackson, right?  So it seems hard to believe that there would be a need to get anything from Michael Jackson‘s person.

THOMAS:  Well, I think it would be unusual.  In fact, I think the judge would have said no had they asked that.  I think the judge would have said, wait a minute, Mr. Prosecutor.  You‘ve had over a year to get that kind of DNA from Mr. Jackson, had he not done it yet.  So I can‘t believe that‘s what they‘re looking for.  It has to be something inside the house.

ABRAMS:  Paul Pfingst, what do you make of this?  I mean this is a little unusual, is it not?

PAUL PFINGST, MSNBC LEGAL ANALYST:  Well it‘s very unusual.  Let‘s first analyze the DNA issue just for a second.  Everybody knows that Michael Jackson has been in Neverland.  So DNA is not going to place him at the scene, because they can already place him at the scene.  Also, we know that the victim—so-called victim in this case has also been to Neverland.  Nobody‘s disputing that.  And so the use of DNA, you start saying well, how useful is it in the total context of this case when both sides to this have agreed that they‘ve been to Neverland, been in a bedroom at Neverland and goofed around Neverland.  So it‘s harder to put the DNA picture into context here, Dan.

ABRAMS:  Yes.  And again, we don‘t know that they‘re going there—I should be careful on how I say this because I don‘t know that they‘re going there to find DNA evidence.  All I know is that it was in connection with DNA evidence.  You know, who knows—but, Paul, would you agree that it has to be something new here?

PFINGST:  Oh, yes, oh, yes.  Because as was just said, to go back and do a repeat search in a highly publicized—because every judge knows this would be highly publicized—under these circumstances, requires new information.  Otherwise, judges generally say listen you had your shot.  We just can‘t do this peace meal time after time after time.

The people—the suspect has some rights, too.  So you would expect that it has to be something new.  And also, Dan, it has to be something important.  It just can‘t be going in and dotting I‘s, crossing T‘s and being abundantly careful.  It‘s got to be a developing thing of enough importance that a judge feels that this particular invasive remedy is the only appropriate remedy.

ABRAMS:  All right.  Let me take a quick break here.  The legal team and the rest of the team is going to stick around—have more on this breaking news.  Michael Jackson case, as you herd Jim Thomas say, he‘s there outside the Neverland Ranch and the search is continuing.  We‘ll have more in a minute.

And more relatives of Scott Peterson called to testify in the penalty phase of his trial -- 14 witnesses so far.  At least 20 more to go.  Are they laying it on a little too thick?

Plus...

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  (UNINTELLIGIBLE) reporters inside if you‘ve ever used performance-enhancing drugs, can you repeat what you told reporters?

UNIDENTIFIED MALE:  No.  I said no.

(END VIDEO CLIP)

ABRAMS:  Yankee all-star Jason Giambi at spring training in February seemingly lying, now that it‘s been disclosed that he told a grand jury he did take performance enhancing drugs banned by Major League Baseball.  Now could the Yankees use that to void his multi-million contract, in particular since he‘s no longer performing like a multi-million dollar player?

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

(COMMERCIAL BREAK)

ABRAMS:  The search of Michael Jackson‘s Neverland Ranch continues.  The question some people are asking is, is it definitely related to this case?  We‘ll try and answer it in a moment.

(COMMERCIAL BREAK)

ABRAMS:  We‘re talking about the ongoing search going on at Michael Jackson‘s Neverland Ranch right now.  Very quickly, Jim Thomas, former sheriff of Santa Barbara, how do we know that it‘s still ongoing?

THOMAS:  Well we knew they came in at 9:00 and we‘ve had a camera crew here since.  And if you can perhaps see behind me there‘s still a sheriff‘s deputy car that‘s inside the property near the gate.  They wouldn‘t be there if the search team had already left.

ABRAMS:  Wow.  This is not a quick little search of—this is as Jim Thomas pointed out, this is a serious search.  All right, Harvey Levin, do we know that this is necessarily a search in connection with this case?

LEVIN:  Well, Dan, I‘m just going to tell you all of the pointers that I have suggest that it is.  I mean there has been a swirl of talk about possibly somebody else, another alleged victim somehow coming into the fray.  Based on what I know, I don‘t think that is going to happen.  And I don‘t think, just because somebody else might buttress what the current accuser says is necessarily grounds this late in the game for a judge to issue a warrant so they can see a supporting witness have more credibility on the stand.  It just doesn‘t feel that way to me, Dan.

ABRAMS:  Stacy, what do you know?

BROWN:  Well, again, the first reaction was, was it a new case?  I know that was some of the first reaction from family members that I spoke to.  But as time has gone on, the confusion is still there.  We just don‘t know.  The family just don‘t know...

ABRAMS:  How are they reacting to this search?  Because the people I‘m talking to on the Jackson side are furious.

BROWN:  Exactly.  I caught up—for instance, one of the family members I caught up with today was Rebe.  She‘s vacationing, celebrating her wedding anniversary.  She was absolutely mortified that there‘s another raid.  And her first reaction was, well, what‘s going on?  Why are they doing this?

ABRAMS:  Paul Pfingst, can we read anything into whether this is connected to this case versus some other issue based on the fact that the warrant is coming now and the trial‘s scheduled to take place, you know, in like a month and a half from now?

PFINGST:  Yes, the only thing that causes me just incredible puzzlement and causes me to think maybe it‘s bigger than just this case is that they‘ve been there for so darn long.  Generally you would expect for a second warrant that it would be very targeted, that you go to a judge with a very targeted, we want this room, looking for this piece of evidence at this place, because we‘ve already been through the place once already.

And the fact that they‘re there for as long as they have been, with the number of people that they have been, sort of indicates that there may be something else going on that we‘re just not in sync with.  So that‘s what causes me to say we should wait and find out more before we start thinking it can only be this pending case.  Maybe it‘s bigger than that.

ABRAMS:  Jim Thomas, any thoughts on that?

THOMAS:  Well, the only thing I want to add to it, Dan, is the fact that the judge has been so adamant that he wants this trial to start on January 31.  And if there‘s additional evidence, especially if it requires any type of laboratory analysis is going to postpone this trial.  And I know that‘s something this judge doesn‘t want to do.  So it‘s got to be something, I think, fairly important.

ABRAMS:  I got to tell you—you know how successful this gag order is, if I‘m sitting here with Jim Thomas, Stacy Brown, Harvey Levin and myself and we all just can‘t tell you exactly what is going on, it really tells you that there‘s been a lot of clamming up that has been going on in this—in the context of this case.  And so we will continue to follow it.

We‘re going to continue to try and get more information and certainly bring it to you in connection with the case that this program will, as always, be the program to watch in connection with the Jackson case.  And then, of course, there‘s Harvey‘s program...

(LAUGHTER)

ABRAMS:  ... all right.  To all of you, Jim Thomas, Paul Pfingst, Harvey and Stacy Brown, thanks a lot.

LEVIN:  Bye Dan.

ABRAMS:  Coming up—extraordinary, caring, considerate sweet and loving, those are just some of the adjectives Scott Peterson‘s friends and family used today in an effort to spare him the death penalty.  The defense says they‘re prepared to call another 20 witnesses.  At this rate, they may need a thesaurus to think of some other glowing words.

And Barry Bonds and Jason Giambi—just two of the most recognizable baseball players who reportedly indulged in the illegal use of steroids or other performance enhancing drugs.  What will this do to them?  What will this do to baseball?  What can baseball do to them?  We got a lot of questions about all of this coming up.  Stay tuned.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  My understanding is that after you told Laci, you continued to see Amber.  Was that also the right thing...

SCOTT PETERSON, ON TRIAL FOR MURDER:  Absolutely.  Yes.  No.  No it was not.

UNIDENTIFIED FEMALE:  Explain that.

S. PETERSON:  (UNINTELLIGIBLE) it was not the right thing to do.

UNIDENTIFIED FEMALE:  But you continued to do it?

S. PETERSON:  Right and it was not the right thing to do.

UNIDENTIFIED FEMALE:  And then even after Laci went missing, you continued to romance this girl?

S. PETERSON:  No.

(END VIDEO CLIP)

ABRAMS:  That man, a first-class gentleman, an extraordinary person, that‘s how witnesses described Scott Peterson today.  The other adjectives we heard today, caring, considerate, sweet and loving.  Day four of the penalty phase is over.  There is more to come.

Jennifer London is live at the courthouse with the latest.  So Jennifer what else did we hear in court today?

JENNIFER LONDON, MSNBC CORRESPONDENT:  Well, Dan, we heard from three witnesses total today.  The first two witnesses, parents of one of Scott Peterson‘s classmates.  They testified that they were very proud that their son was friends with Scott Peterson.  They called him mature beyond his years and they said Scott was a natural leader.

Coni Fritz told the juror that Scott would make a positive contribution to whatever is dealt to him.  She went on to say he would be helping those around him.  I think he could be a great mentor, a teacher.  I think it is very, very important to know that he has a lot to contribute.

This was in response to a question that was asked—if Scott Peterson spent his life in prison, could he still contribute something to society?  Very—she very clearly thinks that Scott Peterson could.  The jury also heard from another one of Scott Peterson‘s half-brothers.

Remember yesterday the jury heard from John.  Well, today they heard from Joe.  And he said that Scott Peterson was a great little brother and that he had a lot of fun with him.  He shared memories of when Scott Peterson was born.  And he also said that Scott Peterson can contribute something positively.  He said he very much wants his little brother to live.

And he told the jury that Scott is a person you want to be around in any circumstance, as a listener, as a talker, as someone who cares.  Joe said he‘s just got so much to share.  In our eyes there‘s no other choice.

Dan, the defense also today showing more family photos, holidays, birthday parties, that sort of thing.

ABRAMS:  Jennifer, how did the jurors react?  Was there any—they start to getting bored?  I mean this is starting to sound similar.  Are they paying attention?  Are they getting teary eyed?  Any reaction?

LONDON:  Well Dan, the jury has heard from 14 defense witnesses in total and you‘re right.  Each one of these witnesses is pretty much saying the exact same thing.  And the jury, I would say they are definitely listening.  However, we are not seeing the emotional reaction from anyone sitting on that panel that we did when the prosecution witnesses testified.

I did see one of the jurors today taking notes.  But I also did see a number of them actually shifting in their seats.  A lot of them were looking out into the courtroom and so it did appear toward the end of today, even though today was a half-day, that some of them were getting a little restless.

ABRAMS:  All right, Jennifer London thanks very much.  “My Take” on this—when you start to have to—when you have to call parents of former classmates, you know that this defense team may be in trouble.

Joining me now is my legal team—NBC News legal analyst and former New York State Supreme Court judge, Leslie Crocker Snyder, criminal defense attorneys Daniel Horowitz and David Wohl who were both inside the courtroom today.

All right, Leslie, you know, when you start having to bring out the parents of classmates, it seems to me that they‘re in a little bit of trouble.

LESLIE CROCKER SNYDER, FORMER NY STATE JUDGE:   If you‘re talking to me...

ABRAMS:  Yes Leslie...

CROCKER SNYDER:  ... I didn‘t hear that.  I‘m sorry.

ABRAMS:  Yes.  Yes.  Yes.

CROCKER SNYDER:  I think it is fairly pathetic but I don‘t know what else they can do.  I mean their hope is clearly to be able to get one juror to say, you know, especially with a lot of more mixed feelings about the death penalty these days and the innocence project, just one juror who‘s going to be somehow thinking that this is just too heavy a decision to make.  It‘s very hard to reconcile these views of Scott Peterson with the nature of the case and the evidence, and I don‘t think they‘re making lot of headway.

ABRAMS:  Daniel, you were in there.  You‘ve been in there throughout. 

Are they making any progress here?

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  I don‘t know, Dan.  I‘m disturbed by what‘s going on.  Look, we know for a fact that he is a rat who cheated repeatedly on his wife.  And yet, all we hear from these witnesses is that he‘s the greatest man who ever walked the face of the earth.  Nobody can believe it.  So what are we supposed to take from this testimony?  That they so desperately want him to live that they‘ll give us yet another false set of evidence...

ABRAMS:  Yes.

HOROWITZ:  ... another myth or a fairy tale?  I don‘t like it.

ABRAMS:  Yes, David, my concern is that the defense team lost an enormous amount of credibility in the guilt phase of this case, and I would think that credibility would be so crucial for them that they would want to be very careful not to have so many people coming in and just saying, he‘s a great guy, he was the greatest ever, this and that.  I would think that they‘d want to have some reservations about this, just try to regain some of the credibility.

DAVID WOHL, CRIMINAL DEFENSE ATTORNEY:  Absolutely, Dan, and here‘s one of the problems.  The more witnesses you bring on, the more potential slip-ups you‘re going to have, like Mrs. Fritz when she started to get into what a sweet girl Laci was.  Harris cut her off immediately, but those are the type of things that can happen.

Joe Peterson—they‘ve showed a picture up on the projector of Scott as a 3-year-old with a fishing pole in a fishing boat and talked about Scott as sort of an unconventional fisherman.  I mean people gasped.  I looked over at Gloria Allred and her jaw dropped...

ABRAMS:  Well that‘s not surprised...

WOHL:  This is a huge problem...

ABRAMS:  ... that Gloria...

WOHL:  ... huge problem...

ABRAMS:  Yes, Gloria Allred...

(CROSSTALK)

ABRAMS:  ... her jaw is going to drop no matter what they say, but we love...

WOHL:  This was—it was a huge problem Dan.

ABRAMS:  Yes.

WOHL:  You‘re right.  There are too many witnesses.  Let‘s keep it short and sweet and to the point.

ABRAMS:  Let met take a quick break because I want to talk about that issue.  I want to actually compare how this case—you know, how this case fares versus other death penalty cases in terms of the number of witnesses who are testifying in this penalty phase.  The legal team is going to stick around for that.

And baseball sluggers Barry Bonds and Jason Giambi‘s secret grand jury testimony suggests that problems with steroids in baseball may be worse than some thought.

Your e-mails abramsreport@msnbc.com.  Please include your name and where you‘re writing from and please do not write in about that extended pause.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Scott Peterson‘s friends and family and the family of his friends and family take the stand, trying to convince jurors his life is worth saving.  But the question that we‘re going to talk about is the defense just presenting too many witnesses, but first the headlines.

(NEWS BREAK)

(BEGIN VIDEO CLIP)

JOE PETERSON, SCOTT PETERSON‘S HALF-BROTHER:  This juror is saying the same things that we‘ve known all along.  That Scott is innocent.  Therefore, there‘s no evidence.  Therefore, there‘s no case.

(END VIDEO CLIP)

ABRAMS:  That was Joe Peterson, Scott Peterson‘s half-brother.  Today he was on the stand.  When asked if he could understand his brother having supposedly killed his pregnant wife, his response, no way, not my brother, absolutely not.  The jury disagrees—he was the defense‘s 14th witness.

Number 12 and 13, the parents of Peterson‘s childhood friend.  The mother talked about the twinkle in Scott‘s eye and his crooked smile.  The father said Peterson never lost his temper on the golf course.  Is the defense involved in overkill here?  Let me take a look at a couple of other cases.

David Westerfield, remember he faced the death penalty for kidnapping, killing 7-year-old Danielle Van Dam.  His attorneys put on Westerfield‘s senior prom date who hasn‘t seen him in 30 years, an aunt who spent childhood summers with Westerfield, but knew little about his adult life, and another aunt who had not seen Westerfield in 22 years and didn‘t contact him after his arrest.  He got the death penalty.

And then—again these are just a couple of cases—Daniel Johnson convicted of lying in wait and beating his friend‘s father to death.  He was defended by one of our guests, Daniel Horowitz.  Only two people took the stand in his penalty phase—his mother and father.  They showed the jury pictures of him as a little boy and talked about how they loved him.  He got life without parole.

You know, again, it‘s not a statistical sample, but the question is are they just doing too much here, calling too many different people who are saying the same thing again and again?  Judge Snyder, it just seems to me that when we‘re taking about the number of witnesses—and I‘m going to read a little bit more in a minute of the type of testimony we heard today.  But it seems when we‘re talking about numbers—and again, we‘re talking about 20 more witnesses expected next week, that—I think that these jurors—it may actually hurt the case rather than help it.

CROCKER SNYDER:  Well, I don‘t know if it will hurt the case, because frankly, the case is in such bad shape in this penalty phase that they really don‘t have a lot to lose.  I think they‘re calling too many witnesses because they‘re—it looks as if they‘re desperate.  And frankly, they are desperate.

They‘re desperate because there is nothing else to say.  They can‘t get into the nature of the case, as I said earlier, and this is all they‘ve got.  And I think they keep hoping that, as I said, one witness will conjure up sympathy in one juror.  Too much, maybe, but what else can they do?

ABRAMS:  This is a question and answer that went on with Pat Harris, defense attorney and Joe Peterson, Scott‘s half-brother.

You nicknamed him Trooper.  Why?

It fit.  Fit what he was doing, reminded us of military, you know, get in with the pack, do what we‘re doing, hold your on.  If he wanted to be with us, he was going to work at it and he did so well at it, I just came up with the name of Trooper.

Again—another interchange between Harris and Peterson—number two here.

When you would go fishing with him as he got older, was he an unconventional fisherman?

Peterson:  Yes.  He would bring a lot of different lures, different setups.  Would bring a fly rod and we‘d all be fishing from the shore, and he would wade out further than we would and try fly-casting.

You know, Daniel Horowitz, this seems to me to be the same problem that I had yesterday when I heard that they were introducing wedding photos of Laci and Scott.  And I said why would they want to remind these jurors of Laci and Scott as a couple?  Again, I‘m going to say why would they want to remind jurors of the issue of fishing and Scott Peterson?

HOROWITZ:  Dan, I think they‘re trying to raise lingering doubt by showing, you know, all this criticism that Scott went fishing for sturgeon with the wrong gear...

ABRAMS:  (UNINTELLIGIBLE)

HOROWITZ:  ... guess what, jury, you were wrong.  He always did that. 

But it makes me sick inside to hear it because it just doesn‘t sit right.  If that was your evidence, put it on in guilt phase.  This is not the time to be playing...

ABRAMS:  Yes...

HOROWITZ:  ... with the jurors‘ heads.

ABRAMS:  Yes, see David, that‘s what I‘m afraid of too.  That some of what we‘re hearing is subtle ways of telling this jury, you know, I know you didn‘t believe the case, but he really was a fisherman and I just think that that‘s dangerous.

WOHL:  You know absolutely Dan, and you know at the end of Joe Peterson‘s testimony he suggested that this was an unjust conviction, believe it or not.  That is a huge gamble.  They‘re essentially telling the jury if they go down that path that you‘re wrong, you‘re wrong and you know it and 12, 15 years from now if we find the real killer, what are you people going to think if my client is sitting in death row?

You know, that‘s one of the paths they‘re going down.  The other one is Scott as a boy, a wonderful young boy, you know, trustworthy, loving.  That‘s wonderful, but there‘s no testimony as to Scott as an adult person, and that‘s a huge void that needs to be filled.

ABRAMS:  Daniel, you do a lot of these cases and you tell us, you know, that you‘ve gotten life in every single case in California you‘ve been involved—and I think you‘ve done seven penalty phases.  What would you have done here?  You know this case really well.  You‘ve been sitting in court every day.  What would you have done?  I mean as Leslie pointed out a moment ago, there‘s not a lot to work with.

HOROWITZ:  But, Dan, they blew this case from day one.  When they were questioning the potential jurors, they didn‘t ask them many questions about what factors would you be interested to know about in the penalty phase. 

They just focused on guilt or innocence.  So they‘re now in front of a jury

·         they don‘t know what the hot buttons are for these jurors.

I would also have hired a psychologist to look into Scott‘s background.  It might sound crazy, but what is psycho, social, sexual, personal history?  What makes him who he is?

ABRAMS:  You know...

HOROWITZ:  And in a very honest way I would have laid it out for the jury to know the truth.

ABRAMS:  That‘s really interesting, Leslie, because it sounds like what the defense is unwilling to do is admit that there‘s anything at all wrong with Scott Peterson.  And I think that‘s one of the fundamental problems here.

CROCKER SNYDER:  Well, of course, I think in a way their position is they have to maintain that attitude, because they‘re saying he‘s innocent.  They‘re going to use that on appeal.  And if they start opening a Pandora‘s  Box of he does have psycho, sexual, sociological, sociopathic problems, then it‘s much more—it‘s easier to understand that he‘s guilty...

ABRAMS:  But isn‘t it dangerous to rely so much on winning the appeal?

CROCKER SNYDER:  Oh I think it‘s very dangerous because I think it‘s unlikely that they‘re going to win unless there‘s something about those juror replacements that we don‘t yet know, which is probably the key area.  But I would bet that the case doesn‘t end up getting reversed unless there‘s something very surprising.

Yes, it‘s dangerous, but this is the way they‘ve tried the case right from its inception.  I think their biggest hope—and you know, maybe no one agrees with me—I think their biggest hope is that someone maybe is disturbed about the innocence project, the fact that more people have—you know, more...

ABRAMS:  Yes.

CROCKER SNYDER:  ... there‘s been a lot more press about people being found to be innocent later on and that a lot more people have become anti-death penalty across the country.

ABRAMS:  I think that‘s right.  That‘s...

WOHL:  Dan...

ABRAMS:  Go ahead.  Is that David?

WOHL:  Yes.  Dan, thanks.  I mean...

(CROSSTALK)

WOHL:  ... the innocence project, I‘ve seen this jury on many occasions.  They don‘t want to hear that.  They‘ve just got done convicting this man.  They are sure of his guilt.  That is not the way to go.  There‘s one way Mr. Geragos, please, listen, as a defense attorney I‘m telling you, you‘ve got to stoke up the sympathy for these wonderful family members.

And you know what?  They really are.  You feel for them when you see them in court, you see them on the stand.  You see them crying.  You see them in pain.  Their souls have been ripped out by Scott Peterson.  Their lives have been devastated.  And if you put Scott to death, you send him to San Quentin, you‘re going to kill them, too.

ABRAMS:  Go ahead, Daniel.  You wanted...

HOROWITZ:  Dan, let me add one point.

ABRAMS:  Yes.

HOROWITZ:  I‘ve been in front of Judge Delucchi with three death penalty trials.  He‘s never given a lingering doubt instructions in my cases.  He‘s giving it in this case, so that is some indication that the judge thinks lingering doubt is a viable issue in this case.  I think, though, that when Geragos put on his case, trying to show the jury here is the doubt, here is the hidden information that shows he‘s innocent and the jury so soundly rejected it, that I don‘t think lingering doubt will work.

ABRAMS:  Let me explain to the viewers just to remind you what lingering doubt is.  It means that yes, the jury‘s convicted him beyond a reasonable doubt.  That doesn‘t mean beyond any doubt at all.  And basically what the judge is saying is even though you‘ve convicted him, you believe it‘s beyond a reasonable doubt.  If you have just even a little, little, little, little, little question, you could not impose the death penalty.  That‘s what lingering doubt actually means.  So we shall see.

Judge Snyder, good to see you again.

(CROSSTALK)

ABRAMS:  Daniel Horowitz and David Wohl, thanks a lot.

Coming up, Jason Giambi has one of the biggest contracts in sports history, millions and millions left on it.  And now he‘s reportedly admitted to a grand jury he has been juicing up.  So what does it mean legally?  Are the Yankees going to try and get rid of him now that he‘s not slugging the way he once did?

And when you go Christmas shopping at the mall this weekend, take a second look at those security guards sometimes insulted as rent-a-cops.  They could be doing much more than stopping shoplifters now.  They could be stopping suicide bombers.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Going, going, gone.  The familiar homerun call may be what the New York Yankees hope to do with alleged steroid slugger Jason Giambi and his $80 million-plus contract.  According to the “San Francisco Chronicle” Giambi admitted using steroids and other performance-enhancing drugs illegally to a grand jury investigating BALCO, a California lab charged with selling the drugs to top athletes.  Giambi told a different tale to reporters who asked about his testimony last winter.

(BEGIN VIDEO CLIP)

JASON GIAMBI, NY YANKEES 1ST BASEMAN:  They asked me to, you know, tell them what I knew and I went in there and told them what I knew.  That plain and simple.

UNIDENTIFIED MALE:  But you were asked pointblank by the reporters inside if you‘ve ever used performance-enhancing drugs.  Can you repeat what you told the reporters?

GIAMBI:  No.  I said no.

(END VIDEO CLIP)

ABRAMS:  Well Giambi still hasn‘t publicly admitted to using steroids but the Yankees seem to be taking these reports pretty seriously.  Team President Randy Levine put out a statement saying we have met with the commissioner‘s office and will continue to work with them to obtain all the facts in this matter.  We‘ve made no decisions and we will keep all of our options open.

Maybe so, but there are a lot of reports out there that the Yankees now want to try and dump Giambi, if possible.  Given his alleged steroid use, recent health problems and steep decline in production, these numbers may tell you why.  The Yankees owe Giambi $11 million next year, 18 million in 2006, 21 million in 2007 and 2008 and either 22 million or a $5 million buyout in 2009.  That‘s a lot of money even for George Steinbrenner.

So “My Take”—let‘s be clear.  If the Yankees try and drop Jason Giambi‘s contract it won‘t be just because of steroids.  It will be because he batted .208 while missing most of the season last year.  His teammate Gary Sheffield admitted in print he took performance-enhancing drugs, though he says he didn‘t know what they were.  Sheffield came in number two in the vote for the American League‘s MVP award this year and no one‘s talking about dropping him or San Francisco Giants slugger Barry Bonds, who has denied steroid use but reportedly told that same grand jury he used substances now identified as steroids.

Let‘s check in with my guests.  Shaun Assael, a senior writer for “ESPN The Magazine”.  He has an exclusive interview with Victor—BALCO, founder and owner of that lab that allegedly sold the steroids to Giambi and other athletes.  And Michael Molfetto is a criminal defense attorney who has represented athletes including basketball bad boy Dennis Rodman.  Gentlemen, thanks a lot for coming on the program.

All right, Mr. Sail, what do you know about all this?  I mean it sounds like these reports in the “San Francisco Chronicle” are accurate, right?

SHAUN ASSAEL, SENIOR WRITER, “ESPN THE MAGAZINE”:  Yes.  I mean if we‘re to believe them, then Jason Giambi got up after getting a grant of immunity and said not only did I take steroids after I went to BALCO, I took steroids before I went to BALCO and it was a pretty elaborate cocktail at that.  I think what we‘re seeing here is really one of the most remarkable days in sports, because Victor Conte, the head of BALCO labs is telling a story to ESPN and to ABC.

You‘re seeing these grand jury—this grand jury testimony leaked so that somebody can make liars out of the players who have denied taking it.  And we have Victor now saying not only did he, you know, give it to Greg Anderson, who then gave it to Jason Giambi, but also we‘re seeing links to Barry Bonds.  So, somebody wants to make liars out of baseball players and they‘re doing a good job.

ABRAMS:  Let me read from some of the grand jury testimony, again, according to the “San Francisco Chronicle”. This is from Giambi.

I don‘t know what they were.  He had told me to take them.  He explained it had something to do with the system.  He just said to take it in conjunction with all the stuff.  He goes on—no, actually—OK.

Mr. Molfetto, I mean this seems like it might be an argument for trying to get rid of his contract.

MICHAEL MOLFETTO, CRIMINAL DEFENSE ATTORNEY:  Well it is an argument for trying to get rid of the contract, Dan, but I don‘t really see it happening on the grounds that he took steroids.  I think if the team wants to void the contract what they should say is, look, you were presented to us by your agent as being a player with such and such qualities with such and such production.  And that production was based on performance-enhancing drugs, which you are now not taking, so therefore, you‘re not the player we bargained for.

I think that‘s the better way to go about it.  The problem the Yankees have also, though, is that Giambi was sick last year and very seriously sick.  So they have a publicity problem if they cut him now in light of the fact that they didn‘t cut Sheffield.

ABRAMS:  But isn‘t there an argument that his sickness may relate to the use of steroids?  I mean we don‘t know that, but it‘s possible, is it not, that the sickness that he had could be connected to steroid use?

MOLFETTO:  Obviously I‘m not a doctor but it‘s more than possible.  It‘s plausible and it could very well be.  However, I think the Yankees are in a position where they need to wait one more year, see how he does as quote—unquote—“a clean player and a healthy player” and then determine whether or not they want to pay out the rest of the contract or try to fight to have it voided.

ABRAMS:  Mr. Assael, what about Major League Baseball?  I mean they have this policy in place that they‘ve had for the last year of testing for steroids, but there‘s no real—no punishments involved if you‘re caught.

ASSAEL:  Yes.  I mean here‘s what‘s going to happen.  I personally think that the Yankees are going to reach some sort of settlement with Jason Giambi, send him on his way.  The reason is that the major player here is the Baseball Union.  First of all, they‘re going to fight any sort of attempt to cut Jason‘s contract on any sort of morals clause or any—you know that he wasn‘t performing.  And the union has been obstructionist.

They‘re the ones that have really blocked year-round testing.  They‘re the ones that have consistently invoked privacy as a player—as an argument for not doing any more strenuous testing.  And what I don‘t think has come through here is that most players want more strenuous testing.  They‘re just afraid to speak up.  They‘ve been shouted down.

ABRAMS:  What‘s the argument against it, though?  I mean every—you know, when I started my job here, I had to have drug testing, et cetera.  I think a lot of people in America who work at big companies have to be tested for drugs.  What is the argument that baseball players shouldn‘t be tested?

ASSAEL:  Well, I mean it‘s a collective bargaining agreement and they

have got the power.  Baseball unlike football, which does have a credible

testing policy, the powers always flowed from the union.  They‘ve had weak

·         always a weak ownership base.  I think now what you‘re seeing is especially this week, the momentum flowing much more to the commissioner‘s office, and I think you‘re going to see the union at least begin to capitulate.

ABRAMS:  Mr. Molfetto, are we going to see this head to the courts, do you think, in some fashion or another?

MOLFETTO:  Oh I think so, especially if they try to do something with anybody‘s contract, whether it‘s Major League Baseball or the Players Union.  They‘re going to end up in court if they try to do anything but maintain the status quo.

ABRAMS:  Gentlemen, thanks very much for coming on the program. 

Appreciate it.

ASSAEL:  Thanks for having us.

MOLFETTO:  Thank you.

ABRAMS:  Coming up, last night I said I‘m much less concerned about this 23-year-old teacher who allegedly had sex with her 14-year-old male student than I would be about a 23-year-old man having sex with a 14-year-old girl.  I said she should be punished, but I said that I still kind of feel like it‘s different.  A lot of you disagree.  Your e-mails coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, shopping mall security guards doing more than just closing parking spaces and checking for shoplifters.  They are now also learning how to keep you safe from terrorists.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why your local mall security guard is becoming a lot more important than you may know.  They are often denigrated as rent-a-cops.  They‘re poorly paid, often poorly trained, on the lookout for unruly teenagers or sticky-fingered thieves.  But now many are training for something a whole lot more important—how to prevent a terror attack.

Around the country, more and more guards and mall officials attending classes on how to spot possible suicide bombers, to look at their clothes, their eyes, even their bodies.  In Israel, mall guards have often been single-handedly responsible for thwarting terror attacks.  So this holiday season maybe it‘s time to look at your mall security team in a new light and appreciate the fact that they are not just there to send your teenagers home.

I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night on the program, Debra Lafave, the 23-year-old Florida teacher, now 24, who says she—now saying she was legally insane when she had sex with her 14-year-old male student.  I said if the tables were turned, that a male teacher was accused, we would call him a pervert and that while she needs to be punished if she‘s guilty, I am more concerned about male predators than female ones.

Adam Perrotta, “The notion that women sex offenders should be treated differently because they‘re less common is absolutely absurd.  As far as I know, there is no basis in law for rarity to be a mitigating factor.”

No Adam, but it can be a factor with regard to prosecutor‘s choices, how to charge, whether to cut deals.  It‘s called prosecutorial discretion.

Marij Katulain, “His sense of good and evil has been warped by this 24-year-old and he, the boy, will have to bear the consequence of always searching for authenticity and meaning in his life.  He may turn to alcohol and may not be able to hold a job later in life.”

May, may, may, may, may—it‘s true—may.  Plenty of our mail viewers, a slightly different take.

John Dean Smith in Philadelphia, “Why couldn‘t I have had a hot teacher like Debra Lafave when I was 14?  I went to Catholic school where all we had were ugly, old, fat nuns.”

Brent Demars in Cleveland, Ohio.  “If I was 14, I would be so excited about having sex with a beautiful teacher.”

Rosalee Adams, “When my husband was a little older than this kid, but still a juvenile, he was involved with a Mrs. Robinson type when he worked in a hotel in the Catskills.  He crowed about how she taught him everything he knew not only in sex, but in how to dress, et cetera.”

In St. Clair Shores, Dorothy Novak, “I don‘t really believe it‘s a female versus male thing, but more a beauty and the beast issue.  Just picture how you would feel if the woman who molested the 14-year-old looked like Aileen Wuornos.”  Remember her?  “Monster”, the serial killer?

Finally Marissa Franco in San Francisco with a dilemma of a different sort.  “It was recently brought to my attention that I have made a horrible decision.  Apparently I scheduled a class for next semester during your marvelous show.  I thought about changing my schedule, however all the classes were full.  I‘m hoping that this college student can somehow endure a semester without her favorite host.”

Marissa, I can‘t believe you didn‘t change your schedule.  I mean, come on.  I‘m just kidding.  Just catch our repeat—San Francisco at 10:00 p.m. West Coast Time.  The program about justice is on then.  So, you know, you take a little study break and—come on.  In college it‘s not like you‘re going to sleep at 9:30.

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

And a reminder, our blawg, “Sidebar”, you can get it on our Web site, abramsreport.msnbc.com.  Look at all those cool graphics.  All right.  That‘s it.  Have a great weekend.

“HARDBALL” with Chris Matthews” is up next.  I‘ll be on the road next week.  Part of next week I‘ll be at the Peterson trial waiting for the penalty phase to end.

Have a great...

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