updated 12/10/2004 2:08:59 PM ET 2004-12-10T19:08:59

Guest: Daniel Horowitz, Gloria Allred, Geoffrey Fieger, Mickey Sherman

DAN ABRAMS, HOST:  Coming up—live from the Redwood City Courthouse where jurors are now deciding if Scott Peterson should live or die after one of the more powerful closing arguments I‘ve ever heard in a death penalty case.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Dave Harris called Peterson the worst kind of monster and used Peterson‘s own words in tapes to show he was a manipulative liar.  He told jurors the only appropriate sentence is death.  Peterson‘s lawyers respond that there doesn‘t need to be any more death and reminds them how horrible life in prison would actually be.  They begged jurors to spare his life.

And...

UNIDENTIFIED MALE:  It is now your duty to determine which of the two

penalties, death or imprisonment in state prison for life without

possibility of parole, shall be imposed on the defendant

ABRAMS:  And the judge instructing jurors, telling them not to let sympathy for Peterson‘s family affect their verdict.  But they can save his life if they have lingering doubt about the murders.  I was in the courtroom.

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket:  I‘m sitting in front of the courthouse where at any moment a verdict could come down in the Scott Peterson penalty phase and we will bring that to you as soon as it happens.  But first up on the docket, arguably the prosecution‘s finest moment comes only hours before the jurors begin the deliberations over whether Scott Peterson should live or die.

Armed with a video presentation, much maligned prosecutor Dave Harris methodically, quietly and yet emotionally told jurors Scott Peterson‘s life was not worth sparing him, calling him the worst kind of monster.  He reminded jurors this was the two-year anniversary of the day Scott told girlfriend Amber Frey he had lost his wife and the same day he bought the boat used two weeks later to dump Laci‘s body.

Quote—“Scott Peterson is the worst of the worst, Harris argued, because he‘s the type of person that lures you in, manipulates.  No one sees it coming.”  Reminding jurors that despite the 39 witnesses who testified on behalf of Peterson that none of them knew Peterson‘s darker side, about his affair, and about the fact that for 116 days while Laci‘s family and members of the community were searching frantically he was pretending to be in grief.  In response to suggestions from the defense that Peterson‘s lack of emotion should not be misunderstood as uncaring, Harris played this clip from an ABC interview in January of that year.

(BEGIN VIDEO CLIP)

SCOTT PETERSON, ON TRIAL FOR MURDER:  Knowing that she‘s missing, but walking the dog through there like she would do.  (UNINTELLIGIBLE) like a way to experience her right now for me.  A lot of times I can‘t make it very far.  I get part of the way—I certainly can‘t make it to the part of the park where currently there‘s a big poster of her up.

(END VIDEO CLIP)

ABRAMS:  Quote—“He played the part of a grieving husband, the great manipulator, the great fraud, turned on tears”.  Harris concluded by showing pictures of Laci and talking about Laci‘s mother—quote—

“She‘ll never get to see Conner grow up.  She‘ll only be remembered in pictures.  Vote for death and remember Laci and Conner.”

The defense began slowly with defense attorney Pat Harris presenting a somewhat rambling argument, talking a lot about the media circus and the people who deserve praise for not joining it.  He argued that Peterson was not manipulative to everyone that as evidenced by the witnesses who testified for him.  He eventually made it back on track as he discussed lingering doubt, the idea that jurors might have some lingering questions about the evidence against Peterson.

But it was lead attorney Mark Geragos who delivered the heart of the defense closing.  He was human.  He was focused.  He was humble.  He began by admitting that he—quote—“did not prepare for the penalty phase because the verdict came as a surprise to him.  But said—quote—“I am not second-guessing any of your decisions.  What we‘re saying is that his life has value.”

And Geragos painted a dark picture of Peterson‘s future in prison saying Peterson would be a marked man, always look over his shoulder to make sure some inmate didn‘t impose the death penalty of his own.  Quote—

“Prison is an awful, awful place, Geragos said.  Scott Peterson will stay in that cell every single day until he dies.  He‘ll have to look over his shoulder at all times.”

And then Geragos literally knocked on the jury box to dramatize how Peterson would learn of his parents‘ death with a knock on his cell.  Peterson, your mom is dead.  Peterson, your dad is dead.  Peterson‘s death, Geragos said, Scott Peterson‘s, would not bring back Laci and Conner.

He concluded by once again begging the jury not to kill to give some measure of compassion and mercy to Scott Peterson.  What a day it has been.  And again, we are sitting here where a verdict could come down at any time.  My legal team is here and a number of them were in court—criminal defense attorney Geoffrey Fieger joins us, as well as criminal defense attorney Mickey Sherman, and in court today, Amber Frey‘s attorney Gloria Allred and San Mateo based defense attorney Daniel Horowitz.

All right, Daniel, you were in court.  I‘m just going to talk about the prosecution‘s argument for now.  What did you make of Dave Harrison‘s closing argument?

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  For a man who has been weak the whole time, it was stunningly strong.  He took pictures of Sharon Rocha feeling such unimaginable pain and put it up in front of the jury.  And then—and this was during a candlelight vigil—and then he said, look at Scott Peterson during that same vigil.  And there was Scott with this stupid, big grin on his face talking on the cell phone, talking love things to Amber Frey.  It was such a retching image and such an arrogant image.  And the jury sat there, and you could just feel their anger.  He really worked them up, but in a subtle way.

ABRAMS:  And there were times, ladies and gentlemen, where Dave Harris literally walked up to Scott Peterson and was inches away from Peterson‘s face pointing at him.  Saying, you‘ve heard the defense talk about the fact that Lee Peterson and Jackie Peterson would be devastated by this.  That this would kill them.  Well there‘s the person to blame.  It‘s him he said, walking over to Scott Peterson.  Oh, Gloria Allred, good closing argument here by the prosecutor.

GLORIA ALLRED, AMBER FREY‘S ATTORNEY:  Outstanding.  Very moving.  They took the autopsy photos, Dan—and I know you were there, so you saw it and didn‘t put them on the screen.  But he did literally put it almost inches away from the faces of the jurors.  The autopsy photo of Laci, may she rest in peace, and Conner, may he rest in peace, right up front.

And in addition I thought it was very strong that another point on the screen he put the sonogram of Conner up there.  That‘s the only photo of Conner that Sharon Rocha will ever have.  I don‘t know that the jury could ever forget that.  It was very moving.

ABRAMS:  I got to tell you, there were jurors in tears in the front row of that jury box and we say that very often.  But I think sometimes there are reporters who are looking for some sort of tear gland that might be shaking on a juror.  I‘m talking about tears here as that closing argument was read.  Sharon Rocha, Laci‘s mother, literally breaking down for most of that closing argument.

I want to read you a little bit more about what Dave Harris said.  I‘m going to do this throughout the program, reading you quotes of what happened today.  Laci was an anchor around his neck, referring to Scott, so he put one around hers.  He said don‘t feel guilty about doing your job.  Don‘t feel guilty for doing the right thing.”

You know, Geoffrey Fieger, I think what they did really successfully here was not just talk about the facts and circumstances of the crime itself, but they talked about the 116 days after the crime and how everyone was waiting around.  And there was Scott Peterson faking it while all of the community was out looking for Laci.

GEOFFREY FIEGER, CRIMINAL DEFENSE ATTORNEY:  Yes, Peterson made it real easy for the prosecutor.  And to use an audiovisual show to juxtapose the act versus the reality is obviously very effective, and I think probably will be successful in wreaking vengeance.  I think they‘re in that position, though, is because of the failures of the defense.

This is almost too easy for the prosecutor.  Again, Geragos made a horrible mistake today by suggesting that how hard it would be and how cruel it would be in prison that almost relieves the guilt of some people who might constitutionally not want to give him the death penalty but might think maybe it‘s actually a little better for him that he gets the death penalty...

ABRAMS:  Yes...

FIEGER:  ... and that‘s not a good tactic.

(CROSSTALK)

ABRAMS:  Dave Harris specifically said to them before he went...

FIEGER:  I know.

ABRAMS:  ... the death penalty is worse...

FIEGER:  I know.

ABRAMS:  ... real quick before I go to break here, but let me play you another piece of sound that the prosecutors used as part of this audiovisual presentation here.  It was a message from Scott‘s own mother.  And the point the prosecutors are making is that he is laughing at his mother because she‘s putting up signs looking for Laci.

(BEGIN AUDIOTAPE)

RECORDER:  Your call has been forwarded to an automated...

(BEEPS)

RECORDER:  You have one unheard message.  First message.

JACKIE PETERSON, SCOTT PETERSON‘S MOTHER:  Hi Scott.  Good morning.  It‘s your mother.  How are you this morning?  Are you wanting to hop on a plane and go to Longview, Washington?  I am.  Rachel‘s up there at the U of Washington and (UNINTELLIGIBLE) definitely you‘d have a place to stay (UNINTELLIGIBLE) Longview, but she also was putting up posters, so...

(LAUGHTER)

(END AUDIOTAPE)

ABRAMS:  Quote—Dave Harris, “He laughed at his own mother.  He laughed at the people who were helping him.  He laughed at everything.”  See Mickey, I think this was the right tone, the right point to focus on for the prosecutors.  And that is, not just what Scott Peterson did but how he acted in the 116 days after.

MICKEY SHERMAN, CRIMINAL DEFENSE ATTORNEY:  Well it may not be right Dan, but it‘s probably going to be very effective.  I mean you know, what he did and what he is accused of doing and what he‘s been found guilty of doing is horrific.  Lying to his mother and mocking his own mother, so to speak, is hideous.  But, but isn‘t this jury supposed to make this decision, first of all, not based on emotion?  That‘s what the judge has told them.

Yet you know, the quotes “worse kind of monster.”  Maybe I‘m a little out of it, but I think that kind of plays to one‘s emotion.  But they‘re supposed to be sentencing him either to death or life based upon the crime he committed and not, and not because of his character...

(CROSSTALK)

SHERMAN:  ... and this is all character evidence.

ABRAMS:  Defense is making—what are you talking about?  The defense is making his character an issue.  You‘re saying the prosecutors can‘t respond about his character?

SHERMAN:  No, the defense is making his value—the value of his life or what‘s remaining in it, an issue and whether or not it‘s worth snuffing out—not his character.  They gave away day one, my client is a cad, the nature of his personality and the...

FIEGER:  Yes, Mick, but—Mick, Mick, the nature of his crime is so bad that he would deserve the death penalty.  Base it on his crime...

SHERMAN:  Not in the chain of murders in California.

FIEGER:  What?

SHERMAN:  This guy‘s a first offender...

(LAUGHTER)

UNIDENTIFIED MALE:  Hey...

FIEGER:  ... killed an unborn child.

SHERMAN:  Talk to the California lawyers.

(CROSSTALK)

SHERMAN:  They‘ll tell you this is not a death penalty case generally in California.

ABRAMS:  Quick break here—when we come back, more on the prosecution‘s closing.  We‘re going to get to the defense‘s closing and talk about how they did.  And remember, we are waiting.  The jury is deliberating.  And remember in penalty phases jury deliberation is usually a lot shorter.  We are going to bring you the verdict as soon as it happens.  Stick around.

(COMMERCIAL BREAK)

ABRAMS:  We continue to wait for a verdict in the penalty phase of the Scott Peterson trial, and while we‘re waiting we‘re going talk more about the prosecution‘s powerful closing argument—coming up in a moment.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

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.

(END VIDEO CLIP)

ABRAMS:  And now the question is will Scott Peterson get the death penalty?  We‘re on a verdict watch.  We are waiting right outside the courthouse for any activity inside.  And as I said before, the deliberations for penalty phases tend to be a bit quicker than the guilt phase.  So, we will certainly bring it to you as soon as we know anything.

In the meantime, we‘re talking about the prosecution‘s closing argument today in the case.  And Dave Harris, a prosecutor, has been criticized throughout this case, really stepping up to the plate here and doing what I have said is one of the best closing arguments I‘ve seen in a penalty phase.  Because he‘s understated, I think that was particularly useful in this phase of the case.

One of the things he said—number 15 -- talking about Scott Peterson leaving his wife‘s body to rot in the bottom of the ocean.  His son-to-be found as trash.  That is not something to be regarded by sparing his life.  That is not something to be forgiven.

You know, Daniel Horowitz, sometimes you want prosecutors who are splashy.  I happen to like those kinds of prosecutors who are a little more animated.  But I think at this phase of the case with a guilt verdict under his belt, I think Harris‘ tone was right on the mark.

HOROWITZ:  Dan, I have to concede that to him.  You know, during the guilty phase he put on so much evidence and this jury came back so quickly once they were reconstituted.  He knows he‘s got that jury.  And I‘m a little bit concerned because I don‘t believe this is a death case that this jury does not have lingering doubt.

That they‘ve looked at the case so carefully their only issue is Jackie Peterson or not.  And he was effective in making it look like well Scott didn‘t even care about Jackie, as you just discussed.  I‘m worried that there could be a death verdict.  He was that good.

ABRAMS:  And let me just play this.  You talked about lingering doubt.  Here‘s what the judge said about that issue today.  Lingering or residual doubt is defined as a state of mind between reasonable doubt and all possible doubt.  You may consider lingering doubt as a factor.

All right.  So Geoffrey, any room here do you think?  I mean do you view this as a death penalty case?

FIEGER:  Well, you know, let‘s talk about that.  The reason California lawyers look at this case and say this isn‘t a death penalty case, a lot of lawyers would because under most circumstances if there wasn‘t the type of media attention, Scott Peterson isn‘t the type of guy who juries send to death.  He‘s too nice looking.  They send blacks more than whites.  They send men more than women.

They send poor more than rich.  And Scott Peterson in that sense has everything going for him.  However, he has the reverse effect, unfortunately.  Because of the publicity, because there‘s a determination not to treat him differently if there ever was a death penalty case, he will get it because—unfortunately because of the circumstance he‘s in, which is unfortunate.  And it shows you the vagaries of the death penalty itself.

ABRAMS:  Let me read you one more quote.  I want to keep doing this—reading these quotes from today.  Dave Harris talking about all the defense witnesses who testified.  Thirty-nine witnesses pretty much all said the same thing.  That the man who sits here, the man convicted of double murder is not the Scott that I know.  Basically saying OK, fine, these people seem to know Scott Peterson before he became a murderer.  So what?  I mean Mickey Sherman, do you think that‘s such an unfair characterization by Harris?

SHERMAN:  I think it‘s actually in some ways helpful.  It shows that if he did this and they obviously found that he did, it‘s an aberration.  It‘s out of character.  It‘s not what he usually does.  And the most important evidence of that is his lack—total lack of a criminal record.  Very few first offenders are subject to the death penalty.

FIEGER:  I doubt he‘s a first offender Mickey...

(CROSSTALK)

FIEGER:  I‘ll bet you anything he‘s not a first offender.

(CROSSTALK)

FIEGER:  I‘ll bet you anything...

SHERMAN:  Don‘t you think...

FIEGER:  ... this guy isn‘t a first offender...

SHERMAN:  ... that we would have heard about it?

ABRAMS:  Geoffrey, Geoffrey, Geoffrey, as far as we know he‘s a first offender...

FIEGER:  Wait...

(CROSSTALK)

FIEGER:  ... there‘s a woman whose body has never been found and that he was questioned about...

(CROSSTALK)

FIEGER:  I doubt you could have that lack of remorse.

(CROSSTALK)

ABRAMS:  Geoffrey...

(CROSSTALK)

SHERMAN:  If this guy tore a label off a mattress...

ABRAMS:  Geoffrey...

SHERMAN:  Geoffrey, if this guy tore a label off a mattress...

(CROSSTALK)

SHERMAN:  ... we would have found out about it two years ago.

(CROSSTALK)

ABRAMS:  ... come on.  No.  No.  No...

FIEGER:  I will tell you Dan...

(CROSSTALK)

FIEGER:  ... there‘s no possibility...

(CROSSTALK)

FIEGER:  ... there‘s no possibility this guy...

ABRAMS:  Come on, Geoffrey, Geoffrey...

FIEGER:  ... could have done what he did...

ABRAMS:  All right...

FIEGER:  ... and the way he did it and not have done something before.

ABRAMS:  And Gloria Allred will tell you that when it comes to domestic violence cases, it happens all the time, right Gloria...

FIEGER:  Not in the way that he did...

ABRAMS:  Hang on.  Let her respond.  Gloria, go ahead.

ALLRED:  It does.  And you know it often happens.  But in addition to that, I thought it was so interesting the way the prosecution basically in one fell swoop destroyed all 39 witnesses of the defense.  Because what Dave Harris said was that they didn‘t know Scott Peterson the way the jury knew Scott Peterson.  Because they didn‘t know that Scott Peterson not only had had a relationship with Amber Frey but had told her that he didn‘t need or want to have biological children.  So they were really clueless about who the real Scott Peterson was.

ABRAMS:  All right.  As we take a break here, we‘re waiting for the verdict in the penalty phase of the Peterson trial.  The defense—we heard from Mark Geragos today.  He talked about Scott Peterson.  And he talked about a different side of him.  A side that prosecutors did not focus on.  We‘ll talk about how the defense did as we wait for the verdict.  Back in a moment.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

HON. ALFRED DELUCCHI, PETERSON TRIAL JUDGE:  To return a judgment of death each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole.

(END VIDEO CLIP)

ABRAMS:  That was the judge only hours ago as he instructed the jurors before they began their deliberations in the penalty phase of the Scott Peterson case.  The jury continues its deliberations behind me.  And of course, we‘re going to bring you any news as soon as we hear it.

In the meantime, want to talk now about the defense closing argument.  Mark Geragos delivering what I think can safely be said as a solid, powerful closing argument for Mark—for Scott Peterson.  He was humble.  He said at the beginning he didn‘t expect this.  You know, you can make the argument that he should have been planning for it regardless.  But nevertheless, it was his effort to ingratiate himself to these jurors.

Let me read you a little bit of what he said—starting with number 46 here.  He said how does the idea of sticking a needle in his arm and strapping him to a gurney?  None of this will bring back Laci or Conner.  Even if you believe he did this, which you must, there is nothing, nothing that putting him to death is going to do except just cause in this case, it‘ll turn into a riptide.  All we‘re asking to you do is life without parole.  Just don‘t kill him.  End this cycle.

You saw the end there—all right.  Are we ready with 44 here?  Let me read you one more.  Wherever he goes is not some kind of country club.  He‘ll be housed Level four every day for the rest of his life.  One of these days, maybe six months, maybe a year, some guard is going to knock on his cell door and say Peterson, your mom‘s dead.  Six months later after that, a year—after that another guard is going to walk by and bang on the door and say Peterson, your dad‘s dead.  Six months after that your brother John‘s dead.

He was literally knocking on the jury box as that happened.  Daniel Horowitz, what did you make of it?

HOROWITZ:  Well, Dan, that‘s a closing that we use a lot in death penalty cases and usually we end it with the final knock, knock, knock, and Peterson doesn‘t come to the door.  He‘s dead in the cell.  He leaves in a box.  The only time he‘s left the prison.  It really makes the point.

And Geragos made his point.  He‘s living in a cell the size of a king-size bed.  When you hear that banging in the courtroom it resonates.  You can just feel the coldness of the sound.  It is a living hell that Scott is going to.  And the basic point that Geragos is making is don‘t send his parents to hell by killing him.  It was very effective.

ABRAMS:  Yes and Mickey that really could end up saving his life.  If these jurors go back there and say look, life in prison for him is going to be awful.  It‘s going to be horrible.  He‘s going to be miserable.  That could be the reason these jurors say let‘s let him live.

SHERMAN:  It‘s almost a higher argument Dan.  The benchmark argument was 1933.  Clarence Darrow talking for hours and hours and hours, convincing a juror not to send Leopold and Loeb, the thrill killers back then, to the death chamber.  And that‘s basically what Mark Geragos had to do today.  Not even talk about Scott Peterson, but talk about the death penalty itself and that‘s it.  It‘s kind of a sociological argument and not one really relating to this case necessarily.

ABRAMS:  Yes...

FIEGER:  No, no...

ABRAMS:  ... but I think—I got to tell you I think Geragos did a nice—hang on Geoffrey, I‘m going to set you up here so you‘ll get an opportunity.  All right, so listen to this.  I think Geragos argument was very strong.  Pat Harris, on the other hand, I get the feeling they put him in there as a sort of filler to basically calm these jurors down after prosecutor Dave Harris went, so they sort of throw him in there to filibuster for an hour before they go to lunch.  Because listen to this argument that he made about—remember the prosecutors had said how manipulative Scott Peterson was.  The defense is challenging the fact that Scott Peterson was manipulative.

He said when Mr. Harris stood up and he said he‘s manipulative, all these years where are all the people he‘s manipulated?  Thirty-nine people sat here on the stand and told you what they know about Scott, intelligent people, salt of the earth people.  Let me ask you a question.  If he was manipulative, how did he manipulate all of them?

You know, I don‘t really know Geoffrey how that has to do with the fact that what the prosecutors are saying he was manipulating Amber Frey, Sharon Rocha, Brent Rocha, the entire Rocha family in the 116 days after the murder.

FIEGER:  If you know anything about psychology and the issue of primacy and recency, you would never put him up as filler to set up Geragos.  That doesn‘t work in light of the prosecutor‘s argument.  Also, and I agree—I read Geragos‘ argument.  If it wasn‘t a canned argument, and I think it was, as Mr. Horowitz indicated, I thought it was pretty good.  Nothing like Leopold and Loeb, though because that was children...

ABRAMS:  Yes.

FIEGER:  ... as opposed to an adult who committed this crime.  More importantly, though, what I think is most revealing here in Geragos‘ closing argument was the fact that he admitted that he wasn‘t prepared.  And that is really bad for this reason.  You needed to prepare for this not...

(CROSSTALK)

FIEGER:  ... now but during the jury selection to understand if you needed to push the buttons with these jurors...

SHERMAN:  Don‘t you think that was...

FIEGER:  ... how did you do it.  No...

SHERMAN:  You don‘t think...

FIEGER:  ... I believe—no, no.  Hey Mickey, I‘m telling you...

ABRAMS:  All right.

FIEGER:  ... absolutely he didn‘t prepare.  He didn‘t prepare.

ABRAMS:  All right.  I got to take a quick break here.  We‘re going to talk more about the defense‘s argument as we wait for a verdict in the penalty phase in the Scott Peterson case.  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  The jury continues its deliberations in the penalty phase of the Scott Peterson trial behind me.  While we wait, we‘re talking about the closing arguments and in particular the defense, but first the headlines.

(NEWS BREAK)

(BEGIN VIDEO CLIP)

DELUCCHI:  An aggravating fact is any fact, condition or event, attending the commission of a crime, which increases its severity or enormity or adds to its injurious consequences, which is above and beyond the elements of the crime itself.

(END VIDEO CLIP)

ABRAMS:  That was the judge instructing the jurors in the penalty phase just a couple of hours ago and they are deliberating as we speak.  As we wait for that verdict, we‘re going over some of the defense‘s closing argument that Mark Geragos made today.  Let me read you a little bit more of what he said.

Prison is an awful place, awful place.  Scott Peterson, if you spare his life, will be placed into a small cell for the rest of his life.  Scott Peterson in that cell will have a bed, a cold, metal toilet, and he‘ll share that cell with a cellmate.  He‘ll stay in that cell every single day until he dies and while he‘s in that cell every single day until he dies, he knows that anytime if he tries to leave to go out for half an hour, 15 minutes, to go exercise or take a shower, he‘ll have to look over his shoulder at all times.

He‘s going to be in danger at any moment from some prisoner administering the death penalty on him.  He went on to say and this was near the end, if you decide, you deliberate, you talk about it, if you would have one vote, one vote is a lot, and if you‘re that one vote and you believe in life and the sanctity of life and in this case if you want to stop all of this killing, then all you have to do is push the button, call the clerks and that‘s it.  That‘s it.  You‘re not forced to come to a unanimous decision.

Gloria Allred, it‘s true they‘re not forced to come to a unanimous decision.  But isn‘t it also true that if they come in 11-1 that it‘s technically a hung jury in the state of California?

ALLRED:  Well, it is a hung jury if it‘s 11-1, and that‘s what he would hope for.  Because if it‘s a hung jury, then the prosecutor is going to have the following decision.  Does he ask for a new jury just for the death penalty phase or does he just say, OK, I‘ll go with life.  It may be that the prosecutor in this case would just go with life.  And, of course, life to the defense is so much better than death.

ABRAMS:  Yes.

ALLRED:  In this case life is the best they can hope for.

ABRAMS:  Daniel Horowitz, there is no way that these prosecutors would retry the penalty phase with a new trial.  I mean facts and circumstances of the case are the essence of the penalty phase.  So what, they‘re going to have another four-month trial with another jury just in an effort to get the death penalty?

HOROWITZ:  I know Dan.  It would be unbelievable, because in California, as you know, we have hogy (ph) voir dire.  Each juror is interviewed individually and given the fact that it took months to get this jury, how much longer will it take now to get an unbiased jury now that everybody in the entire world, including apparently Al-Jazeera TV, according to Judge Delucchi, carries this case.  There‘s no unbiased people left.

ALLRED:  And it‘s interesting Dan...

ABRAMS:  Come on...

ALLRED:  ... because...

ABRAMS:  Al-Jazeera is not covering this...

(CROSSTALK)

ABRAMS:  I know.  I think...

UNIDENTIFIED MALE:  That‘s what Judge Delucchi said in open court.

ABRAMS:  I think he‘s kidding.  All right...

FIEGER:  I don‘t...

ABRAMS:  All right...

HOROWITZ:  I hope he was, but I always agree with Judge Delucchi...

ABRAMS:  Oh come on.  Al-Jazeera is not covering...

FIEGER:  Sure it is.

ABRAMS:  ... the Scott Peterson case.  Look, I don‘t know this.  I‘m just guessing and I don‘t want to have a debate about whether...

UNIDENTIFIED MALE:  Dan, I think they carry you...

ABRAMS:  I‘ll find out—you know what—we‘re going to ask our translator.  Cory (ph), can you ask Alfred (ph) or whoever is on the translation desk and we‘ll let our viewers know what the answer is.  OK.  All right, go ahead Gloria.  You wanted to jump in.

ALLRED:  Well I was just saying it was an interesting tact that Mark Geragos took when he said there is no point in doing more death.  So really what he‘s saying to the jury is stop the killing.  It‘s an interesting tact to take.  Because when they talk about saving life, which I always thought was the wrong term to use, I think the jury would talk—would think about why didn‘t Scott Peterson save baby Conner‘s life?  Why didn‘t he save Laci Peterson‘s life?  So he‘s just saying...

ABRAMS:  Yes...

ALLRED:  ... stop the killing.  Let‘s not have anymore.  He‘s trying to suggest that somehow it would be better for Sharon Rocha if there were no more killing.  But, of course, does anybody believe that Mark Geragos speaks for the mother of the murder victim?  I don‘t think so.

ABRAMS:  I don‘t know.  Mickey, that‘s a little bit harsh on the defense, don‘t you think?

SHERMAN:  Yes.  And you know, it‘s a little bit like that bumper sticker, why do we kill people who kill people to show people that killing people is wrong?  You know, there‘s one other thing that‘s really working against Geragos here and no one ever really talks about it.  But I think that the public, the juries have an inherent distrust of the correction system that when we say it‘s life without parole, that‘s all well and good now and next week and maybe the next 10 years, but that 14, 15, 18 years later...

ABRAMS:  Yes.

SHERMAN:  ... they‘re going to realize he‘s not such a bad guy...

(CROSSTALK)

SHERMAN:  You know, let‘s...

(CROSSTALK)

ABRAMS:  Yes, but Mickey I got to tell you, to back up what you‘re saying, we had a juror on from a death penalty case in California involving a woman eight months pregnant killed by her husband.  We had him on yesterday.  He said that was the concern...

SHERMAN:  Yes.

ABRAMS:  ... of the jurors in them imposing the death penalty in his case.  I think it‘s a completely valid point...

SHERMAN:  And I think that‘s something the defense should have addressed.

ABRAMS:  And Geoffrey, very quickly...

(CROSSTALK)

FIEGER:  He did...

ABRAMS:  ... what do you think of the defense‘s constant references to the media circus?  I mean to me that‘s a little bit insulting to the Rochas and the jurors to constantly be talking, to suggesting that they didn‘t really decide this on their own that they actually just caved into the media and that‘s why Sharon Rocha thinks Scott did it and that‘s why the jurors think Scott did it.

FIEGER:  Well see, that‘s why you‘ve got to ask what these guys were doing in the first place.  What happens in life when you challenge someone to defend their position?  They become even more entrenched.  So what would make Geragos think that by taking that position that‘s likely to change anybody else‘s position?

More to the point, Geragos and all of those attorneys really to a certain extent communicate to the jury above the neck.  They think as if these jurors are going to make these decisions rationally, intellectually, dispassionately.  Although the judge tells them to do it, they don‘t do that.  You know, a very interesting tact, if Geragos was brave enough to do it because he‘s blown just about everything, is to have challenged the jury to execute the guy.

To execute the guy despite no actual proof.  Not talk about lingering doubt but to say, you know, you might think he did it.  It looks like, you know, he might have done it.  But you know what?  Let‘s put him to death, too.  On top of everything else you‘ve done. You understand?  Now that may challenge one person.  It might be a very dangerous tact to take.  It‘s not a safe tact to take.  But it‘s certainly doing something to promote something besides what they‘re going to do which is vote to execute.

ABRAMS:  Is it really surprising that Geoffrey Fieger is an exciting attorney to watch in court?  I‘ve watched him many times.

We‘re going to take a break here.  When we come back, the legal panel stays with us.  We‘re going to talk about the judge‘s instructions.  They‘re on camera.  It happened only moments ago.  There are shots of Scott Peterson from inside the courtroom as well.  This as we wait for a verdict in the penalty phase of the Scott Peterson trial.  Our continuing coverage continues in a moment.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

DELUCCHI:  Sympathy for a defendant‘s family is not a matter that a capital jury can consider in litigation.  However, family members may offer testimony of the impact of an execution on them if by so doing they illuminate some positive quality of the defendant‘s background or character which is offered as a basis for a sentence less than death.

(END VIDEO CLIP)

ABRAMS:  That was the judge‘s instruction only a couple of hours ago here in the Peterson case.  I should tell you that the judge is expected to be back on the bench at any moment here.  We don‘t know what it‘s about, so we‘re certainly going to watch it.  It could be something mundane.  It could be something much more significant.  We don‘t know.  We will continue to follow it and bring it to you as soon as we know anything at all.

All right Daniel Horowitz, you heard there the law.  The judge saying that you—sympathy for a defendant‘s family is not a matter that a capital jury can consider, however they can offer testimony about the impact if it illuminates some positive quality.  I mean look, that‘s really a distinction without a difference as a practical matter isn‘t it?

HOROWITZ:  It is, except that when you ask a witness how are you going to feel if Scott is executed, the witnesses give you everything emotionally.  If you try to phrase it to meet the legal standard what aspect of Scott would be missing from your life, it becomes so convoluted that the witnesses are kind of stilted in their answer.  And it‘s designed to do just that.  Geragos ignored the law.  Just asked the question to get the most emotional punch.  And he‘s hoping that the jury ignores the instruction and goes with their heart.

ABRAMS:  Yes and look, these instructions are often a little bit confusing anyway, so I think that‘s a fair bet when your client‘s facing the death penalty.  Let me just also tell you we spoke with Al-Jazeera television.  We called them to find out if they‘re covering the Peterson trial.  The P.R. people for Al-Jazeera tell us they are not covering the Peterson case...

(CROSSTALK)

ABRAMS:  ... but they say they will look into it to make sure it wasn‘t in any newsbreak, so that‘s the answer.  We said we were going to find out for you.  Let me play another piece of sound here from Judge Delucchi and this one is about that big issue of lingering doubt.

(BEGIN VIDEO CLIP)

DELUCCHI:  You may also consider any lingering or residual doubt as to the defendant‘s guilt or intent as a factor in mitigation.  Lingering or residual doubt is defined as a state of mind between reasonable doubt and beyond all possible doubt.

(END VIDEO CLIP)

ABRAMS:  Mickey Sherman, in English this means, yes, we know that you convicted him beyond a reasonable doubt, but if you have any little questions, any little reservations, go for life, right?

SHERMAN:  In other words, does the name Barry Scheck mean anything to you?  OK, or all of those people who have been on death row for so many years in Illinois down south?  Even in this state here and it turns out that some other schnook committed the crime, confessed to it some years later and DNA proved them to be telling the truth at that point.

The judge, I think, gave a very fair charge on that.  And I apparently

·         and Daniel Horowitz can correct me—it‘s not obligatory that he does that.  But Judge Delucchi went out on a limb to give this charge.

ABRAMS:  Right.

SHERMAN:  And I really think that‘s the best that the defense has going.  The only thing that really bothers me, which is off point—not as far off point as Al-Jazeera, is why do we get the televised most boring part of the trial here?  I mean...

ABRAMS:  Because the judge wants—I agree with you.  Look, but the judge...

FIEGER:  The judge gets face time...

ABRAMS:  ... wants to protect against anything.  Oh, come on, the judge gets face time.  All right.  That‘s a good one Geoffrey.  All right, but let me—back to this issue of lingering doubt, Gloria.  You know, it seems to me that what they‘re hoping for is not the innocence project, as Mickey is saying, but the fact that these jurors may say look, I don‘t know how it happened, I don‘t know where it happened.  And in their minds they may interpret that as lingering doubt.

ALLRED:  Well, that‘s true and that‘s possible.  But the thing about lingering doubt, Dan, is and we have to understand that what the judge said is it‘s a mitigating factor.

UNIDENTIFIED MALE:  Right.

ALLRED:  In other words, it‘s not the only factor.  It‘s not a conclusive factor.

UNIDENTIFIED MALE:  That‘s right.

ALLRED:  It‘s a factor.  And the jury can give whatever weight it wishes to that factor.  It can give it a lot of weight.  It can give it no weight at all.

ABRAMS:  All right.

ALLRED:  All it has to do...

ABRAMS:  I got to wrap...

ALLRED:  ... is put it in the...

ABRAMS:  I got to wrap.  I got to wrap it up.  Gloria, great to see you.  Geoffrey, Mickey, Daniel, a great panel.  All right, thanks a lot.  Appreciate it.

Keep in mind we‘re going to come back to—as many of you are going to stick around, if we get any news from the judge, so we are keeping an eye on the courtroom.  So don‘t go anywhere.

Now, coming up, we‘re going to also get a report on what‘s been happening upstairs from Jennifer London.  And last night I said that Scott‘s mother Jackie may be in pain, but that her pain is a very different kind than Sharon Rocha, Laci‘s mother.  Many of you agree.  Your e-mails coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, we have got some news to report to you from the courtroom in the Peterson case.  We‘re going to have it in a few seconds.

(COMMERCIAL BREAK)

ABRAMS:  We have got news to report to you from the jury in the Scott Peterson case.  MSNBC‘s Jennifer London is standing by with the latest—

Jennifer.

JENNIFER LONDON, MSNBC CORRESPONDENT:  Dan, we understand that the jury will wrap up today at 4:00 p.m., that‘s just in a matter of moments.  What does that mean?  Well there will be no verdict today whether Scott Peterson will be sentenced to life in prison without parole or be given the death penalty.

We are being told the jury will be back here at the courthouse at 8:00 a.m. tomorrow.  Mark Geragos, on the other hand, will not appear until 10:30.  No word as to why he will be late.  And just keep in mind that Mark Geragos was not present when the verdict was delivered during the guilt phase.

Now we have seen quite a crowd gather here outside the courthouse.  Just a few moments ago, one of the regular court watchers that I have seen inside the courtroom for the past six months came running out and said no verdict today.  The jury is going home.  There‘s a lot of anticipation and I‘m sure we will see a larger crowd here tomorrow Dan.

ABRAMS:  Did not come from that particular viewer...

(LAUGHTER)

ABRAMS:  All right, just so our viewers understand that we have it from our own sources.  All right.  Jennifer London, thanks a lot.  Appreciate it.

Now it‘s time for “Your Rebuttal”.  The defense has rested its case, you know that, in the penalty phase of Peterson‘s trial.

From Lancaster, Pennsylvania, Diane writes “It‘s my understanding that if given a death sentence, he‘s more likely to die of natural causes before an execution date is ever set.  If given a life sentence, he‘s more likely to be killed by the other inmates.  If this is accurate and the jury wants him to suffer, i.e. be harassed, threatened physically and sexually assaulted and eventually killed, they should give him life.”  Yikes Diane (UNINTELLIGIBLE).

Hank Gehring on Scott being labeled by some as having mental problems.  I find it strange that all the commentators on the shows keep calling Scott Peterson a psychopath or sociopath.  So why didn‘t anyone bring in psychiatrists during the penalty phase to explain this condition to the jury?”

Well, Hank, because the defense is unwilling to admit that he did it.

And Jackie Peterson, Scott‘s mother, on the stand yesterday, pleading with the jury to compare Scott‘s life.  She compared her anguish to that of Laci‘s mother, Sharon Rocha.  In my “Closing Argument” I said not all mothers‘ pain is equal and that Jackie should understand that her pain, while legitimate, is not the same as Sharon‘s.

Shannon Gaule writes, “You blew me away last night.  Your commentary on the two mothers involved in the Peterson case was touching.  I was moved to tears.”  Thank you, Shannon.

From Bakersfield, California, Kristine Jones.  “If Scott is given the death penalty, her last vision of Scott will be him lying strapped to a gurney while he drifts quietly into his final sleep.  Sharon Rocha, she will carry to her grave the last vision of the torso of Laci and the blue lifeless body of Conner and the knowledge how they were tossed away like garbage.”

Finally, last night I said bravo to the D.A. involved in the NBA basket-brawl case in Michigan for having the courage to charge both fans and players, but also for recognizing that even fans who threw drinks or spit at players are committing minor crimes as well.

Daren Britts in Manassas, Virginia.  “Unless you‘re at the opera, would you please stop using the word bravo.  You‘re going to get the reputation of being a fancy lad, you fancy lad.”

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

We‘re back in 60 seconds with our new “Legal Lite” segment and a word of warning to fast-food workers.

(COMMERCIAL BREAK)

ABRAMS:  We take a break from our Peterson trial coverage for our new “Legal Lite” segment.  It‘s where we tell you about America‘s craziest criminals, laziest lawyers, most pathetic lawsuits.  And we‘re holding a contest hoping you‘ll come up with a better name for the segment.  The winner gets a package of MSNBC merchandise that will look just dandy under the holiday tree - bravo—and you‘ll get credit on the air.  More on that after our “Legal Lite”.

This one comes to us from the town of Rio Rancho, New Mexico where fast-food buyers have learned the hard way to take a close look under the bun before biting into a burger and I hope this doesn‘t upset your stomach.  But last March, a local cop bit before he looked and found that someone had spit on his patty.  That loose lipped someone was a 19-year-old named Marcus Calderon.  He was convicted of battery and sentenced to 18 months on Monday.

He was working there and he claimed he was sick and accidentally left the lugi (ph) on the burger.  The judge added a condition to his sentence.  Once he gets out, Calderon is banned from working in the fast-food industry for two years.  Maybe he will be assigned to the prison kitchen and maybe he will be back at your favorite restaurant in two years from now.

Back to the contest.  To enter, go to our Web site, abramsreport.msnbc.com.  The rules are there.  So is the entry form.  You come up with the name for the segment, you get the bag of goodies.  We find the stories.

Some of you have gotten really creative with your entries.  Dave Pockras (ph) from Toms River, New Jersey wrote his suggestion in the form of an acrostic.  Using my name, he suggests we call the segment Dunces and Neanderthals—Dan—About Bungling, Rambunctious, Absolute Moron Soliloquies.

I bet I could I do it better.  What is that called, an acrostic?  Never—anyway.  All right.  You have until Sunday night to get your entries in.  We announce the winner on the air.

Keep in mind, we are here until the verdict.  We‘ll be here tomorrow, all day, waiting.  Stay tuned to MSNBC and of course we‘ll bring you that verdict live.

Thanks for watching.  See you tomorrow.  “HARDBALL” with Chris Matthews is up next.

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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