updated 12/9/2004 10:36:34 AM ET 2004-12-09T15:36:34

Guest: Dean Johnson, Gloria Allred, Geoffrey Fieger, Forester Sinclair, Fred Castagna, David Gorcyca, William Paulson, Ron Fischetti

DAN ABRAMS, HOST:  Coming up live from Redwood City, California.  The evidence is complete in the penalty phase of Scott Peterson’s trial, the final witness—his mother begging jurors to spare her son’s life. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Jackie Peterson in tears as she tells jurors how Scott and Laci were the perfect match.  That if they vote to execute him, they would be wiping an entire family off the face of the earth.  It was powerful.  It was emotional, but enough to save his life? 

And how much do jurors really care about family members’ testimony in a penalty phase?  We get an inside look from two jurors who deliberated in two other California death penalty cases. 

Plus...

UNIDENTIFIED MALE:  Anybody involved, jersey or no jersey, regardless of your stature, you’re going be held accountable. 

ABRAMS:  Five players and five fans criminally charged in the infamous brawl on the court.  The lead prosecutor in the case and one of the fans facing charges are here on the program about justice and it starts now. 

(END VIDEOTAPE)

ABRAMS:  Welcome to the Redwood City Courthouse where the evidence is in and the Peterson case will soon be in the hands of the jurors.  I was inside the courtroom today when the teary mother of Scott Peterson begged with the jury to spare her son’s life—a son she described as nurturing, kind, and gentle.  She said that she is a mere shell of what she once was and repeatedly compared her pain to that of Laci’s mother Sharon Rocha.

Quote—“If you are to take Scott away from us, it would be like Laci never existed.  We would lose a whole family.  Both Sharon and I would lose a whole family.  He can do a lot of good things.  I beg you to consider that.”

Often she looked directly at her son.  As childhood pictures of Scott were shown to the jury, Jackie described how Scott rescued a black lab and was a diligent crossing guard.  Then after just over half an hour on the stand, Jackie who breathes through the aid of a respirator was helped off of the stand by Peterson attorney Mark Geragos.  Her husband, Lee, stood up to walk her back to her seat.  Jurors listened closely but showed nothing like the emotion that was seen when Laci’s mother, Sharon Rocha, testified about her loss. 

“My Take”—many have said that if these jurors spare Peterson’s life, it will be thanks to Jackie Peterson’s testimony.  Well if that is the case this may not have been enough.  It was emotional.  She was authentic.  But you didn’t walk out of there with a completely altered sense of the case.  I think if they give him life, it will be for a different reason because some of them have—quote—“lingering doubt” about how and where the crime occurred. 

Joining me now is Amber Frey’s attorney Gloria Allred, former San Mateo County prosecutor Dean Johnson and criminal defense attorney Geoffrey Fieger.  All right, let me just get a quick sense for you, Dean.  You were inside the courtroom with me when Jackie testified.  What did you think of it? 

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Well, you know, I was surprised at how unemotional it was.  Jackie was certainly crying, but out in the courtroom audience and particularly in the jury, there were plenty of dry eyes in the house.  At one point I saw one juror dab her eyes, but that was just about it.  And really this testimony was more of the same.  What we heard about was Scott Peterson, the early years.  Scott Peterson, the perfect, nurturing, kind young man.  There’s a huge gap in this case.  What about Scott Peterson after he married Laci, after he became an adult, after he moved to Modesto—what was it that led this perfect person to become a killer? 

ABRAMS:  Right.  But to be fair, I mean that’s not Jackie Peterson’s job.  I mean her job is not to talk about what led him to become a killer when her position is that he wasn’t a killer at all.  Let me play a piece of sound from Jackie on this program, January of 2003.

(BEGIN VIDEO CLIP)

JACKIE PETERSON, SCOTT PETERSON’S MOTHER:  It was wonderful.  They’re very much in love with each other.  They dote on each other.  They’re 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. 

(END VIDEO CLIP)

ABRAMS:  And Gloria Allred, that’s sort of similar to the testimony we heard from Jackie today. 

GLORIA ALLRED, AMBER FREY’S ATTORNEY:  Exactly.  She’s still in denial, Dan, that her son, in fact, killed his precious wife and killed her grandson, Conner.  And she talked today about how we all lost Laci I think trying to give herself something in common with Sharon Rocha, Laci’s mom.  She even said, in fact, Dan, that Laci called her mom—called Jackie mom and that she treated her as a daughter for eight years.  But, of course, the grief of Jackie for Laci, if there is grief, cannot begin to compare with the grief of Sharon Rocha, Laci’s mom, who spent her entire life with Laci, who had Laci as a very best friend who was, in fact, her real mother. 

ABRAMS:  Yes.

ALLRED:  So I think that the comparison basically missed its mark. 

ABRAMS:  I agree with you about the comparison.  But I say of course there’s grief on the part of Jackie Peterson.  I mean you know I’ve talked to Jackie Peterson many times.  I am convinced that she is grieving.  She may also be in denial as is evidenced by this piece—this came today—she testified in his whole 30 years there’s never been a temper, it’s—you know, it’s just not even in his nature.  You know, Geoffrey Fieger, can you blame mom for continuing to say didn’t do it? 

GEOFFREY FIEGER, CRIMINAL DEFENSE ATTORNEY:  No, but I suspect there’s something else there.  This guy is a sociopath.  We’ve seen what he’s really like when nobody is around.  We heard those phone calls between him and Amber.  We saw what he was really doing when Laci and Conner’s body was identified 400 miles away in a disguise with $15,000 that Jackie allegedly gave him.  We saw what he was doing and who he—what he was saying with Amber while there was a vigil going on for Laci. 

This guy is so clearly a sociopath and he didn’t hatch out of thin air.  I would suspect, Dan that there is something within that family and that family unit and something within Jackie that people might look at to see what created a monster, and this guy truly is a monster.  I suspect there’s no sympathy on that jury or very little for Jackie...

ABRAMS:  Yes.

FIEGER:  ... because she already attempted to assist him and exculpate him...

UNIDENTIFIED MALE:  Yes.

FIEGER:  ... during the guilt face.  Geragos’ tactics in this case are not admirable.

ABRAMS:  And here’s my concern.  Look, I do have sympathy for this family.  I think that the jurors did not believe them in the guilt phase of this case.  But, you know, this doesn’t help the situation.  This is Lee Peterson—again they’re pointing the finger of blame at everyone except Scott Peterson.  Let’s listen.

(BEGIN VIDEO CLIP)

LEE PETERSON, SCOTT PETERSON’S FATHER:  When are you guys going to hold your next lynching?

(END VIDEO CLIP)

ABRAMS:  When are you guys going to hold your next lynching?  That’s what Lee Peterson said.  And Gloria Allred, it sounded to me like today, again, there was a lot of blame from Jackie Peterson that somehow the media is responsible for the fact that these jurors believe that Scott Peterson did it.  That the Rocha family believes that Scott Peterson did it, that somehow the media infected everyone’s minds in this case to the point where they just couldn’t evaluate the evidence. 

ALLRED:  It sounds like that to me, Dan, and maybe it would have helped if she had even acknowledged that Scott Peterson did it or that the jury might have had a reason to believe that Scott Peterson committed this double murder of Laci and Conner. 

ABRAMS:  Yes.

ALLRED:  But obviously, she doesn’t admit it perhaps even to herself and that’s a problem.  She also testified, Dan, we all were looking forward to the birth of baby Conner.  Well obviously Scott Peterson was not looking forward to having a baby. 

ABRAMS:  Yes.

ALLRED:  And he even said on the tapes to Amber that if he were with her, he didn’t need to have a biological child. 

ABRAMS:  You know, I’ve been really critical of some of the other witness who have been sort of trying to retry this case in the penalty phase and saying that these defense attorneys could have prepped them better and told them not to retry the case, not to insult the jurors.  But I think when it comes to mom and dad, I think that you can say, you know what, they’re going say he’s innocent.  It will go in one ear, out the other when it comes to these jurors...

UNIDENTIFIED MALE:  You know, Dan...

ABRAMS:  ... and Jackie Peterson was emotional.  Very quickly Geoffrey, I’ve got to move on. 

FIEGER:  There was remarkably little in Jackie’s testimony about her son Scott, if you read the transcript remarkably little. 

ABRAMS:  Yes.  Well, I don’t know.  I mean look I was there and some of it was about herself.  Some of it was about Scott.  But you know I don’t know if these jurors really care that he was a good crossing guard.  We shall see. 

The legal team is going to stick around because coming up—the prosecution took a final opportunity to remind jurors of Peterson’s affair today as they cross-examined one of Peterson’s friends.  And how much do all of these family and friends’ statements really mean to jurors?  I can’t believe a whole lot.  Well we’re going talk to two former jurors who deliberated in cases where 8-month pregnant wives were killed by their husbands in California.  In both cases, they got death.  What swayed the jurors there? 

Plus, five players, five fans charged today in the NBA on court melee.  We talk to the prosecutor in an exclusive interview and ask what led him to even charge fans who threw concession stand items at the players?  I say bravo. 

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a defense witness says the Scott Peterson she knew always wanted to have children running around, leading prosecutors to stand up and ask did the Scott Peterson you knew have an affair with Amber Frey?  Coming up.

(COMMERCIAL BREAK)

(BEGIN AUDIOTAPE)

AMBER FREY, SCOTT PETERSON’S FORMER GIRLFRIEND:  Yes, is that why you said you didn’t want to have any children?  And Ayianna was the only child you ever see of having and at that point assuming we’re together she would be—you would have her as your own.  Why would you tell me that when you were expecting a baby? 

SCOTT PETERSON, ON TRIAL FOR MURDER:  Sweetie, I—I’m so sorry that I can’t tell you everything now. 

(END VIDEO CLIP)

ABRAMS:  Jurors were reminded today of that conversation with Amber Frey when prosecutors in what has been a rare move cross-examined a defense witness.  Shelly Reiman, who knew both Scott and Laci, testified about the Scott she knew, how he wanted to have children and was loving to kids.  Prosecutor Dave Harris said—quote—“During these conversations in December did Scott ever tell you about Amber?

No.

Did Scott ever tell you he told Amber he didn’t want to have children?

No.

Peterson’s niece also took the stand and explained why she volunteered to testify on her uncle’s behalf.

Quote—“My mom and dad have been talking about it for awhile.  I felt I needed to help because the situation is extremely tragic and I can’t stand back and watch my innocent uncle go through this.”  She also talked about all the letters that she exchanged with Scott Peterson and how important they were to her. 

Dean Johnson, I’ve got to tell you, I think that this was the best day so far for the defense on the whole.

JOHNSON:  Well maybe on the whole, but I think Dave Harris’ cross-examination yesterday was a very good move because it reminded the jury of something that they had to be reminded of.  That there is a dark side to Saint Scott.  That the real question this jury ultimately has to answer is who’s sitting in that defense chair—the perfect son that everybody is talking about or the guy who threw on Christmas Eve his wife and baby into San Francisco Bay?  And I think it was—I think Dave Harris should have done more of that.  The fact that the prosecution has acqriest (ph) in this testimony made it a good day for the defense. 

ABRAMS:  I don’t know.  Do you think that’s really been the problem, Gloria? 

ALLRED:  Well, I think the problem is the defense just basically doesn’t have a strategy.  I think part of their strategy originally was to try to suggest that if the jury recommended the death penalty, that, in fact, that could kill Scott’s parents—Jackie and Lee and devastate the family. 

ABRAMS:  Yes.

ALLRED:  But then again, of course, the judge has indicated that as part of his jury instructions tomorrow that it will not—he will not instruct them that the impact on the defendant’s family is a mitigating factor.  In other words, they can’t consider it.  So I guess now they’re stuck with what contribution would he make in prison if he were still alive and...

ABRAMS:  Yes.

ALLRED:  ... doesn’t appear that there would be much of a contribution. 

ABRAMS:  And let me tell you, there’s another person who testified today, Thomas Beardsley, this really big fellow comes in who worked with Scott, Scott provided fertilizer for his business and here was what he said.  He said I don’t know anything about what he’s been doing since he’s been locked up.  I’ve tried to avoid as much media as possible because it does disturb me.  How can anybody be so goodhearted and be in this mess is beyond me. 

I mean Geoffrey, very quickly—I mean it seems again and again we’re hearing he’s goodhearted, he’s good-natured, he’s nurturing, he’s kind, he’s gentle.  But it seems that very often the best cases for getting life are the people who’ve lived tough lives, who were rough, who were abused, et cetera.  Not the case with Scott Peterson. 

FIEGER:  Yes and certainly not—where they’re going to point out tomorrow the real Scott Peterson because the jury’s already seen him.  They see this guy doesn’t care.  They see when his wife and child are gone that he’s talking sweet nothings with Amber.  They see that he was 400 miles away.  He’s not a saint.  He’s not who these people were talking about and the jury actually saw that.  When push came to shove...

ABRAMS:  Yes.

FIEGER:  ... when his back was up against the wall, was this guy a good guy?  He was the worst monster in the world even afterwards and the jury knows it.

ABRAMS:  All right, Gloria Allred and Dean Johnson, thanks a lot. 

Geoffrey is going to stick around.  He’s going to join us for a segment...

ALLRED:  Thank you.

ABRAMS:  ... later in the program.  Up next, in the end, though, will it really matter what Scott’s friends and family had to say?  We’re going talk to with two jury foreman who convicted and sent two men to death row for killing their pregnant wives and unborn children.  Wow. 

And five players and five fans now facing criminal charges in court for what happened just off of the court.  We talk exclusively to the D.A.  who has charged them and to one of the fans. 

(COMMERCIAL BREAK)

ABRAMS:  So, what will jurors consider when they decide whether to put Scott Peterson to death?  In a moment we’re going to talk to two men who served as jurors on cases eerily similar to Peterson—a little background on those cases.  More than a decade apart, two husbands in California, both convicted of murdering their wives and unborn children.  Both women about eight months pregnant. 

Todd Garton was about the same age as Peterson and like Peterson was having an affair when he promised another man $25,000, an entry into some sort of murder for hire ring if he killed a woman.  The man didn’t know he was Garton’s wife.  He shot her five times killing her, and, of course, the fetus. 

William Dennis reportedly hacked his wife to death with a machete because he blamed her for their son’s drowning death in the backyard pool.  The mother bled to death after one of the hits went right through her stomach killing the baby. 

So we have two ends of the spectrum here.  You’ve got Todd Garton who wasn’t even there when his wife was killed.  And yet, on the other hand, you have William Dennis who actually, it seems, used a machete.  Both Garton and Dennis now on death row in San Quentin awaiting execution.  So what led the jurors to decide on death in those cases? 

Joining me now is Forester Sinclair, the foreman of the William Dennis jury and Fred Castagna, the foreman of the Todd Garton jury.  Gentlemen, thank you so much for taking the time to come on the program.  Appreciate it. 

All right, Mr. Sinclair, let me start with you.  When was it that you had decided on death in your case meaning, did the penalty phase really have a big impact or are you pretty much settled on the fact that you were going to impose the death penalty before the penalty phase ever started? 

FORESTER SINCLAIR, WILLIAM DENNIS JURY FOREMAN:  No, I think maybe there were three jurors who were predisposed to death before we started deliberations on the penalty phase.  I was not.  I think most of us were open minded about it and as we worked through deliberations, we discussed it.  We kept taking votes and finally worked it down to a vote of 10-2. 

And I decided early on as the jury foreman that I wanted to make sure that everyone was satisfied and comfortable with their votes say 10 years down the road.  Therefore, I held out.  I was the minority voter.  When it went to 11-1, I told the rest of the jury that I was that one vote and I was prepared to then switch over and vote for death and that’s what we did. 

ABRAMS:  And what led you to switch over? 

SINCLAIR:  Well, I wouldn’t have been on the jury if I wasn’t able to go on either verdict.  And we—in our deliberations, we decided that the one thing that we had to do is to make sure that William Michael Dennis was removed from society permanently.  And we could not be assured of that with a life in prison without possibility of parole. 

ABRAMS:  All right, Mr. Castagna, you too were involved in a case where a husband accused of killing wife—pregnant wife at the time.  How much did friends and family’s testimony in the penalty phase impact you? 

FRED CASTAGNA, TODD GARTON JURY FOREMAN:  Well, they impacted me, of course.  I mean you can’t sit there in a jury box and not be impacted by these stories and about the damaged and ruined lives and so forth.  But as far as impact on our decision, I’m going say in my case especially or particularly not that much.  It was—probably had more to do with the evidence present during the trial. 

ABRAMS:  Why?  I mean and here they’re trying—in the Peterson case, they’re trying to say, look, this is a guy people care about.  His death would lead to heartache and hardship for a lot of people involved.  And it just sounds like in your case similar type of argument but, again, just that wasn’t the focus. 

CASTAGNA:  Well, if you think about it, now that they’ve decided that the man is guilty of murder, that he actually killed his own life with his own hands, probably, and dumped her body, you have to go back and look at some of the things he did right after her death and think about those things in a new light like you know calling the girlfriend, you know, getting—putting the house up for sale and all of the other things...

ABRAMS:  Yes.

CASTAGNA:  ... and similar things happened in our case.  And now those things...

(CROSSTALK)

CASTAGNA:  ... seem particularly—I’m sorry?  Go ahead. 

ABRAMS:  I apologize.  Please finish up.  Yes.

CASTAGNA:  Well, I was just going to say those things now seem particularly onerous in light of the fact that you’ve now decided that the man actually murdered his wife and that all of the time that he was doing this he knew in the back of his mind that she—her body was at the bottom of the bay. 

ABRAMS:  Yes.  Yes.  Mr. Sinclair, let me read you something that defense attorney Pat Harris said in his opening statement here.  He said please listen close.  This is a life worth saving.  We’re not asking you to let this man go free.  Life without parole is not some kind of holiday.  Life without parole is a horrible existence.

I’m assuming that was the same sort of argument that was made in your case because it’s made in just about every death penalty case. 

SINCLAIR:  That is correct.  However, we decided—we could not be assured that life in prison without possibility of parole really meant that.  In fact, after we were released, we had—some of us stayed and talk to the attorneys and one of them, as I recall, even said he thought that life in prison without the possibility of parole in 40 years there may be a parole hearing.  And so we felt good about our decision.  We felt it was necessary that we decided the way we did. 

ABRAMS:  Mr. Castagna, very quickly, you think Scott Peterson is likely to get the death penalty based on what you’ve seen? 

CASTAGNA:  You know it’s hard for me to say.  It really depends on how those jurors felt about the evidence that was presented to them and...

ABRAMS:  What’s his best hope? 

CASTAGNA:  I really don’t...

ABRAMS:  What’s his best hope?

CASTAGNA:  I don’t think he’s got much of one, to be honest with you. 

ABRAMS:  Yes...

CASTAGNA:  He hasn’t—no  -- not—in my opinion, not that I think that they’re going to send him to death, but the evidence has already convinced the jury that he’s murdered his wife. 

ABRAMS:  Yes, he is definitely I think fighting an uphill battle.  I apologize for the delay between us Mr. Castagna.  Thank you both very much for coming on the program.  Forester Sinclair and Fred Castagna, jury foremen in cases eerily similar to the Scott Peterson case. 

Coming up, five Indiana Pacers players, five Detroit Pistons fans now facing criminal charges for their alleged part in this—the D.A. charging him is here in an exclusive interview and so is one of the fans. 

And Martha Stewart may be in prison, but apparently that’s not stopping her comeback.  Reality TV guru Mark Burnett announcing today that Stewart will have a daily TV show in the fall—wait a second—she’s not supposed to be doing any business in the slammer, so how did she negotiate this? 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, prosecutors file lots of charges against those

Indiana Pacers and Detroit fans who brought new meaning to the word foul—

five Pacers face criminal charges.  So do five fans, including some who

just threw concession items.  We talk exclusive with the D.A. who charged

them, first the headlines

(NEWS BREAK)

ABRAMS:  Ugliness on the court has been met with charges that will put some NBA players and some so-called fans in court.  Of course, I’m talking about the brawl at The Palace at Auburn Hills, Michigan last month.  You remember the scene—Pacers players brawling with Detroit Pistons fans in one of the ugliest scenes in sports history—U.S. sports history at least.

Now the justice system has weighed in as well.  We’ll start with the Pacers.  Forward Ron Artest, the first to go into the stands—one count of misdemeanor assault and battery. 

Center Jermaine O’Neal—he allegedly went after fans twice—two counts for him.  There he is in the bottom left of misdemeanor assault and (UNINTELLIGIBLE) and battery. 

Forward David Harrison facing one count of misdemeanor assault and battery. 

Guard Steven Jackson faces the same.  One count of misdemeanor, assault and (UNINTELLIGIBLE) and battery. 

And Guard Anthony Johnson also charged with one count of misdemeanor assault and battery. 

As for the fans, John Green, Prosecutor David Gorcyca today said he instigated the incident by throwing a cup full of something at Artest.  Two-counts of misdemeanor assault and battery for him—for both the cup and then for the punches. 

Bryant Jackson accused of throwing a chair that hit several people.  He’s the only one charged with a felony—one count of felony assault and one count of misdemeanor assault and battery. 

David Wallace—turns out he’s the brother of Detroit’s Pistons Center Ben Wallace—for this—one count of misdemeanor assault and battery. 

William Paulson, accused of throwing his beverage cup in a player’s face—one count of misdemeanor assault and battery.  John Ackerman also accused of dousing players—one count of misdemeanor assault and battery. 

And Charlie Haddad, one count of violating a local ordinance that prevents fans from going on the court. 

And Alvin Shackleford (ph) -- one count of violating the same local ordinance that’s meant to keep fans, you know, where they belong—in their seats. 

All right.  “My Take”—bravo to the D.A. for going after fans and players equally.  There’s no doubt there’s lots of blame to go around here, but it takes a certain amount of courage to file charges against the NBA players and even fans who threw cups.  Those sort of charges are unusual but I think warranted in this case, at least on the whole.  A message has been sent by these charges alone. 

Oakland County prosecutor David Gorcyca joins us now for an exclusive interview.  Thanks very much for coming on the program.  We appreciate it. 

DAVID GORCYCA, OAKLAND COUNTY PROSECUTOR:  Good evening. 

ABRAMS:  All right.  Let me ask you—Ron Artest, all right, he’s the one who’s achieved so much attention as a result of this—one misdemeanor count—it sure seemed like he was involved in more than one brawl. 

GORCYCA:  That’s correct.  But after he was struck on the check or

neck area with that cup, he went up in the stands and mistakenly assaulted

·         I believe his name was Jim—Michael Ryan (ph), so he is facing one count of assault and battery there.  But the scenario that played out on the floor when two fans approached him, one of which, I believe it was Shackleford (ph) had a clinched fist, approached him in a menacing fashion, also exchanged some words.  In that instance, I exercised some discretion and I thought it was a little judicious and felt that was acting in self-defense.  We did not face a charge there.  In the melee that occurred up in the stands area I felt that much of what he was doing once fisticuffs were occurring was acting in self-defense particularly when he’s being assaulted from behind by John Green. 

ABRAMS:  I think that’s a very measured approach I have to say.  Now what about some of these fans charged with, for example, Mr. Paulson, who we’re going to be talking to in a moment who charged with literally just throwing the cup.  Kind of unusual to charge fans for throwing their cups? 

GORCYCA:  I mean that’s correct.  But the definition of battery in the state of Michigan is any offensive touching.  And quite frankly, there’s a case out of Michigan that defines offensive touching and spitting in the face would constitute assault and battery so it’s very analogous to throwing a cup of water in someone’s face. 

Quite frankly, in my opinion, it was a very cowardly act on his part when Artest had at least three people restraining him when Paulson threw the cup.  And every time a cup is thrown at a player or a liquid substance, the whole melee escalates and I felt it important to hold both the fans and players equally accountable. 

ABRAMS:  Tell me about the process that you went through in deciding who to charge.  Did you just keep going over these tapes again and again and again and looking at them from different angles, et cetera?

GORCYCA:  I had three full-time staff going over a number of video clips and footage.  There was 10 media feeds into the Piston/Pacer, that game.  We also garnered some tapes from the NBA security officials.  We went over them and over them.  We also obtained some still photos from the footage.  And one individual and the fans forwarded us some great footage about the chair-throwing incident.  And then there were about 1,000 pages of witness accounts and police and security reports. 

ABRAMS:  And there was only one felony here.  Now, as a practical and legal matter, does that mean that all of the people charged with the misdemeanors likely not to serve any jail time at all, correct? 

GORCYCA:  That’s very correct.  If they have no prior criminal history at all, they’re most likely facing probation, fines and cost, and conceivably some community service.  The reason why there wasn’t meted out more serious charges because nobody sustained any serious injuries that we were able to substantiate. 

ABRAMS:  All right, Mr. Gorcyca, if you could just stay with us for a minute.  I just want to bring in the other side on this.  Our friend attorney Geoffrey Fieger is still with us and joining him now is his client William Paulson, one of the fans who is charged with misdemeanor assault for his alleged role in this.  Again, the allegation with regard to him is that he threw a cup and you heard the district attorney there talking about it.  All right Bill Paulson...

FIEGER:  I hate to take...

(CROSSTALK)

FIEGER:  ... wait, wait...

(CROSSTALK)

FIEGER:  ... no, no...

ABRAMS:  You can’t even let me start with Bill Paulson.  I can’t ask him if it’s true or not? 

FIEGER:  What do you mean if it’s true?  I take umbrage...

ABRAMS:  I just want to know did he throw the cup or not?  Did he throw the cup...

FIEGER:  Well, I’ll tell you.  I take umbrage...

ABRAMS:  He can’t answer it himself. 

FIEGER:  He will in a second.  I take umbrage at David saying that it’s a cowardly act to—he didn’t throw a cup.  He threw some liquid on a rampaging seven-foot, 300-pound man who had run into the stands and was attacking his good friend.  This is a guy who is a 20-year season...

GORCYCA:  A subdued individual...

FIEGER:  Excuse me...

GORCYCA:  Restrained...

FIEGER:  ... 20-year—restrained by who?  Ron Artest had never been restrained, David, by anybody. 

(CROSSTALK)

FIEGER:  He was 300 pounds...

(CROSSTALK)

ABRAMS:  Hang on...

FIEGER:  He is...

(CROSSTALK)

ABRAMS:  Hang on.  Mr. Gorcyca...

(CROSSTALK)

ABRAMS:  Mr. Gorcyca, let me let Geoffrey finish and then I’ll...

FIEGER:  He is seven feet tall.  He is 300 pounds.  He wasn’t restrained by anybody.  He lifted those people up like they were paper mache dolls and in defense, Mr. Paulson in attempting to defend his friend reaches forward.  Actually you could say he committed, David, a battery there where he says please get off my friend, get off my friend.  And when he wouldn’t get off of my friend, he throws a beer at him.  Now come on.  You compare the two.  The guy who instigated—ran up into the stands, attacked people or somebody who is defending this friend.  You don’t want to try this case, David. 

ABRAMS:  Go ahead Mr. Gorcyca...

(CROSSTALK)

ABRAMS:  ... your response.

(CROSSTALK)

ABRAMS:  Hang on.  Hang on.  I’ve got to give Mr. Gorcyca a chance to respond.  Go ahead. 

GORCYCA:  He was—Geoffrey, our best evidence is that video.  I’ll be happy to see you in court and let this play out and let a jury decide and that’s where it ought to be.  We can debate the facts all he wants, but that video speaks for itself. 

ABRAMS:  All right...

(CROSSTALK)

ABRAMS:  ... well let me ask Bill Paulson.  So your claim, I guess, according to Geoffrey is going to be self-defense.  You don’t deny, right, that you threw the cup at Artest, correct? 

WILLIAM PAULSON, FAN CHARGED OVER BRAWL:  No and Mr. Gorcyca, with all due respect, he had my friend down—one of my best friends by his chest with his fist cocked and my friend is pleading saying I didn’t throw it.  I didn’t throw it.  It would have been cowardly for me to walk away from that in my estimation. 

FIEGER:  Exactly.  I mean who’s going blame him—he’s sitting there

·         he wants to be entertained.  He’s a season ticket holder.  He didn’t run under the floor and attack Ron Artest. 

(CROSSTALK)

FIEGER:  This seven-foot wild man came up and attacked him and his friend. 

GORCYCA:  And he was charged for doing so, Geoffrey. 

FIEGER:  But—and it’s a crime to defend yourself?  I don’t think so, David.

GORCYCA:  Well, Geoffrey, again...

(CROSSTALK)

GORCYCA:  ... we’ll let it play out and I can’t wait to play that video. 

FIEGER:  I can’t wait either. 

(CROSSTALK)

GORCYCA:  Yes, it will be fun.

ABRAMS:  All right.  Let me wrap it up then.  Geoffrey Fieger, Bill Paulson, thanks very much.  And to Mr. Gorcyca, thank you as well for coming on the program. 

GORCYCA:  Thanks for having me.

FIEGER:  Thanks Danny.

ABRAMS:  All right.  A very good day for Martha Stewart.  She may be in prison but that didn’t stop today’s announcement that she’ll be hosting a daily TV show in the fall.  But she’s not supposed to be doing business in prison, so how is the good thing a legal thing?  How has she negotiated this deal when she’s not supposed to be negotiating deals? 

And Jackie Peterson, Scott Peterson’s mother, tries to convince jurors her pain is just as real as Laci Peterson’s mother.  I’m not sure the comparison works.  It’s my “Closing Argument”.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

MARTHA STEWART, FORMER CEO, MARTHA STEWART LIVING:  I will be back.  Whatever I have to do in the next few months, I hope the months go by quickly. 

(END VIDEO CLIP)

ABRAMS:  That was then.  We got a big announcement today about Martha Stewart’s plans once she gets out of prison.  And they don’t just include planning the spring bulbs.  No next fall, Stewart will star in a new NBC show produced by Mark Burnett, the man who brought us “Survivor” and “The Apprentice.”

(BEGIN VIDEO CLIP)

MARK BURNETT, WILL PRODUCE STEWART’S NEW SHOW:  I couldn’t be happier and I’ve already got my sleeves rolled up.  And I cannot wait until she comes out of jail and we can work together.  And that was her yesterday, by the way, in the prison kitchen.

(END VIDEO CLIP)

ABRAMS:  Here’s the problem with the story.  Martha Stewart is in prison not allowed to work on her business or start any new business ventures for that matter from behind bars.  So how did she work this deal out?  What exactly is she allowed to do with her business while on the inside and what can she do once she’s out on house arrest in March?  And is it really for Mark Burnett to be meeting with her in prison now?

“My Take”—I expect the show will be a success and I know Burnett said today in that press conference that all of this was worked out before.  I’ve got to believe Burnett is not continuing to go to the prison to talk about spring plantings. 

Joining me now is the great defense attorney Ron Fischetti, who is close to Martha’s defense lawyers.  Ron, good to see you again.  All right, so what exactly—she’s not allowed, right, to talk about business while in prison? 

RON FISCHETTI, CRIMINAL DEFENSE ATTORNEY:  Martha’s back (UNINTELLIGIBLE) Dan.  Well, she’s not allowed to conduct a business in prison and different wardens and caseworkers, you know, use that in different ways.  Since she’s a high-profile person, I mean they may watch it pretty carefully.  I mean you can’t run a business from in there.  But I don’t know if it would be wrong if someone came to her and spoke to her during a visit about a potential proposal or talked about a potential proposal... 

ABRAMS:  So the rule is not you can’t discuss any business at all...

FISCHETTI:  No.

ABRAMS:  It’s that you can’t run a business? 

FISCHETTI:  You can’t run a business.  As an example, if you’re a stockbroker who’s been convicted, you can’t use the phones as you can with collect calls to trade in other people’s accounts.  You certainly can trade in your own account, but you could you trade in your own account daily to buy and sell?  No, so they would watch that. 

But it’s the kind of rule, you know, that’s enforced for various people at various times.  So if she was negotiating a deal where Rudman (ph) was coming in to talk to her every day and she was signing papers and she was making collect calls, which she can with regard to this, then, of course, they would stop her.  But talking to someone about it on one or two occasions and trying to set something up to do when she gets out, I don’t think that’s in violation of the prison rules. 

ABRAMS:  So, what about when she’s on house arrest?  Can—she can then pretty much do as she pleases when it comes to her business.  I mean she’s got restrictions as to her travel, et cetera, right? 

FISCHETTI:  Well those restrictions are really set by judge—the judge that sentenced her (UNINTELLIGIBLE) and those are really set that—we know exactly what they are.  She’s got 48 hours a week to be out of a residence.  And she chose Bedford, New York rather than Turkey Hill.  So for 48 hours she can leave her house to either conduct business, go to religious services, anything to do with her health or any type of shopping.  She’s got 48 hours.  But she has only 48 hours six days a week.  She has got to designate one day when she must be home.  And during those 48 hours, she can conduct any type of business she wants and she... 

ABRAMS:  Could she film the show? 

FISCHETTI:  She could film the show.  She could work 10 hours one day, five hours the next day.  She could do whatever she wants and that’s standard.  That’s not just for Martha.  That’s for anyone.

ABRAMS:  All right.  Ron Fischetti, one of the best.  Thanks for coming back on the program.  Appreciate it. 

FISCHETTI:  Thank you, Dan. 

ABRAMS:  Coming up—two mothers in pain try to sway a jury.  The difference is Jackie Peterson is angry at effectively the jurors and certainly the media.  Sharon Rocha is just mad at convicted killer Scott Peterson.  I say there’s really not a real comparison there.  It’s my “Closing Argument.”

(COMMERCIAL BREAK)

ABRAMS:  There’s no doubt both Scott Peterson’s mother and Laci Peterson’s mother are in a lot of pain, but I say all pain is not created equal.  It’s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why all mothers’ pain is not created equal.  Today Scott Peterson’s mother, Jackie, repeated compared her anguish to that of Laci’s mother, Sharon Rocha.  The comparison doesn’t quite work.  Yes, both are angry.  Sharon because her beautiful daughter was brutally murdered.  And Jackie because her son she believes has been falsely convicted.  And if Scott Peterson gets the death penalty both will have ultimately lost a cherished child through I would say no fault of their own. 

But Jackie suggests both would have also lost a loved in-law as well.  Jackie testified that she loved Laci as much as Sharon loved Scott.  That may have been true.  In fact, initially Sharon defended Scott.  But while Jackie still loves Laci, Sharon does not share those sentiments about Scott. 

Jackie’s statement ignores that reality.  In reality, Jackie’s pain is based in helplessness.  Sharon’s in sadness and fury.  Sharon’s rational supported by love and facts.  Jackie’s based on love alone, faith, that it just can’t be so.  Jackie has directed her anger towards the media and ultimately the jurors, while Sharon’s anger is directed straight at Jackie’s son. 

And Jackie’s effort to deflect blame from Scott is ultimately an insult to the Rochas.  If it is the media’s fault, then Sharon is a foolish dupe as well.  If Scott was innocent, it would be fair to talk about everyone’s pain.  But when everyone else, the Rochas and the jurors are convinced otherwise, it I think adds insult to injury to lump them together.  Talking about all of them as one family is only fair when she speaks for the family. 

No matter what anyone says, I feel for Jackie Peterson.  She is a sweet loving mother.  But that should also lead her to better understand that her pain is not Sharon’s.  She has not lost her son yet.  And even if he gets the death penalty, it will take at least 10 years on death row.  That’s not anything for her to celebrate, but she and Sharon are not battling the same demons. 

Coming up, our “Legal Lite”, a new way one mother allegedly tried to get her daughter to raise money for Christmas.  A hint, it involves the child, it involves Jell-O, it involves bringing it to school and something added to the Jell-O.  That story and “Your Rebuttal” in 60 seconds. 

(COMMERCIAL BREAK)

ABRAMS:  We’re back.  I’ve had any say, now it’s time for “Your Rebuttal”.  Last night I whined about wine.  At issue, that certain states claim that the 21st Amendment, which ended prohibition, gives states the power to regulate alcohol sales basically any way they want.  Yesterday the Supreme Court heard arguments that some state laws, New York and Michigan specifically, discriminate against consumers like me and winemakers because those states allow consumers to buy wine directly from the wineries within their state but don’t let them buy from wineries in another state. 

I said this is about distributors trying to protect their monopoly and it’s time for the court to say no to this discrimination.  Ken Starr joined me on the program last night. 

Law student Aaron Power in Los Angeles, California.  “Yesterday’s show made me admit for the first and hopefully the last time that I actually agreed with Ken Starr on something.”  Ken Starr agreed with me on that too.

And Scott Peterson’s family and friends still on the stand pleading for his life to be spared in the penalty phase of the trial.  Greg Allen in Indiana, “The only point this gibberish from the friends of Scott brigade establishes is that he had the ability to charm strangers and acquaintances, which is a trait common to sociopaths.”

But, Brenda Moore has a different take.  “This man and his family are fighting for tooth and nail for his life.  I don’t care if they call 1,000 people.  Let them talk.  If you don’t like it, bring yourself back from Redwood City.”

All right, Brenda, I have said they should be allowed to do it.  I just don’t think it’s helping the case.  But thanks for the tip about where I should go. 

Your e-mails abramsreport—one word -- @msnbc.com.  We go through them and read them at the end of the show.  Please include your name and where you’re writing from.  

Time now for our latest feature on the program, our “Legal Lites” and as I said Monday, we really like the segment.  We’re not so hot on the name.  So we’re asking you to take part in a contest to come up with something better.  The winner gets a great package of MSNBC merchandise just in time for the holidays.  Before I give you more about the contest, here is today’s “Legal Lite”. 

No surprise that people who live in or visit New Orleans like to drink, but it looks like some residents there are starting their kids a little early.  An 8-year-old girl suspended for nine days after it appeared that she brought about 30 Jell-O shots to school.  According to the school, the fourth grader was caught when a teacher spotted liquid dripping out of her book bag and found what looked like small cups of alcohol-laced Jell-O that are usually sold in bars, not on monkey bars. 

Turns out the girl’s mother works in a bar and makes Jell-O shots at home to sell at work.  The girl told her school’s principal that her mother told her to take the Jell-O shots to school and sell them three for $1 to make some money for Christmas.  Officials now are testing the Jell-O shots to see if they do in fact contain alcohol or just J-E-L-L-O. 

Now back to the contest.  To enter, you go to our Web site, abramsreport.msnbc.com.  All the rules are there.  So is the entry form.  If you come up with the name for the new segment, you get the bag of goodies and we’ll find the stories. 

That does it for us tonight.  I’ll be back here tomorrow in Redwood City as jurors start deliberating whether Scott Peterson should get the death penalty. 

Coming up next, “HARDBALL” with Chris Matthews.  Thanks for watching. 

I’ll see you tomorrow. 

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

END   

Copy: Content and programming copyright 2004 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2004 FDCH e-Media, Inc.  (f/k/a Federal Document Clearing House Inc., eMediaMillWorks, Inc.), ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and FDCH e-Media, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

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