updated 12/16/2004 1:40:52 PM ET 2004-12-16T18:40:52

GuestS: Geoffrey Fieger, Bob McNeil, Victor Sherman, William Sullivan, Lisa Pinto, Alison Dundes Renteln, Edward Smith, Jr.

DAN ABRAMS, HOST:  Coming up, he promised to prove Scott Peterson was stone cold innocent.  Didn‘t deliver.  Now the trial is over.  What happens to high profile lawyer Mark Geragos? 

(BEGIN VIDEOTAPE)

UNIDENTIFIED FEMALE:  I respect Mr. G.  I think he‘s a great lawyer. 

I think this wasn‘t a good case for him to take. 

ABRAMS (voice-over):  He made a name for himself with celebrity clients like Winona Ryder, Michael Jackson, and Scott Peterson.  But will the death penalty in the Peterson case change everything for Mark Geragos? 

And prosecutors in the Michael Jackson case now want to admit evidence of previous sexual encounters at Jackson‘s trial.  It‘s happened in other cases. 

Plus, lawyers for the hunter accused of killing six fellow hunters say they may use a cultural defense.  That after other hunters taunted him using ethnic slurs, the defendant just lost it.  It‘s worked before, but I say these sorts of defenses are just bad news for the justice system. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, Scott Peterson‘s defense, in particular his defense attorney.  Mark Geragos a well known, well respected attorney who many are now blaming for the death penalty verdict in this trial.  You know you are in trouble when even Jay Leno is chiming in. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Now Mark Geragos also represented Winona Ryder, right?  Remember, she was found guilty. 

UNIDENTIFIED MALE:  Yes.  Right.

UNIDENTIFIED MALE:  Now he represented Scott Peterson, he was found guilty.  You know we should take up a collection and get Mark Geragos to represent Robert Blake, Phil Specter, and Saddam Hussein...

(APPLAUSE)

UNIDENTIFIED MALE:  ... keep this thing going.  He‘s got a roll going. 

Keep it going.

(END VIDEO CLIP)

ABRAMS:  Bit of irony for a man criticized by Laci‘s family for joking too much during the trial. 

(BEGIN VIDEO CLIP)

SHARON ROCHA, LACI PETERSON‘S MOTHER:  I just think that Mr. Geragos needs to stop joking so much.  It‘s not funny.  There‘s nothing humorous about the fact that my daughter was murdered. 

(END VIDEO CLIP)

ABRAMS:  In the end, Geragos failed on his promise to provide compelling evidence of Scott Peterson‘s—quote—“stone cold innocence.”  So now with another high-profile loss on his resume next to actress Winona Ryder, will this permanently scar Geragos? 

“My Take”—it shouldn‘t, but it very well may.  The results are what make all the difference, but I think for people to blame Geragos because Scott Peterson was convicted is completely unfair.  He had to handle the case he was dealt.  Could he have done some things better? 

Sure, particularly near the end, but he started this case strong with effective cross-examinations of key prosecution witnesses and it was the evidence, not the lawyering that doomed Scott Peterson.  I‘m confidence that down the road, sooner rather than later, Mark Geragos will be involved in other high-profile cases. 

Joining me now to discuss is Bob McNeil, a Los Angeles based criminal defense attorney who knows Mark Geragos well.  Victor Sherman, another L.A.  criminal defense attorney who also knows Geragos, and criminal defense attorney Geoffrey Fieger.  All right.  Geoffrey, you think I‘m wrong on this one? 

GEOFFREY FIEGER, CRIMINAL DEFENSE ATTORNEY:  Not entirely.  He‘s going to be hurt in the long term among his peers because, you know, quite honestly, I take a look at some of the things he does and I think tactically he makes enormous errors that do not benefit his client.  Publicly, though—and again, I agree with you.  He‘s got some good skills.  His cross-examination skills and his bravado carry him a long way. 

They don‘t necessarily translate well in certain cases.  But among the public, you know, they forget.  F. Lee Bailey, for instance, did a terrible job, for instance, in the Patty Hearst case, terrible job...

ABRAMS:  Yes.

FIEGER:  ... he was a blow art and yet his reputation continued because the public just remembers the name and not the result.  So the answer is yes and no.  Among the public it may not hurt him.  Among his peers though, what he did in this case, I think, significantly does hurt. 

ABRAMS:  But Geoffrey, very quickly, is it fair to blame him for this case?  I mean let‘s assume...

FIEGER:  No. 

ABRAMS:  ... apart from the guilt—maybe even for the penalty phase, do you think those who are blaming him are being fair?

FIEGER:  No, not that Scott Peterson was going to get off if he had gotten a better attorney or a different attorney.  However, some of the tactics he used, he may have been able to avoid the death penalty if he wouldn‘t have taken the bravado stance that he did.  If he had been more human, if he had been less arrogant, if he had been—taken—recognized that there was a significant possibility that his client could be convicted, look, he admitted he didn‘t prepare for the death penalty.  That‘s inexcusable.  And then not to show up for the verdict...

ABRAMS:  Yes.

FIEGER:  ... that‘s inexcusable.  That‘s the type of things that we as lawyers say, what are you doing?  Are you out of your mind? 

ABRAMS:  Bob McNeil, what do you make of that? 

BOB MCNEIL, CRIMINAL DEFENSE ATTORNEY:  I would have to agree with some of the comments that you have made, but remember, I don‘t think that the Patty Hearst case was covered by the media anywhere near this case.  I mean the O.J. case and this case, I mean, and the media was just all over this case...

ABRAMS:  So does Geragos suffer? 

MCNEIL:  ... and I believe...

ABRAMS:  Bob, does Geragos...

MCNEIL:  I think...

ABRAMS:  ... suffer because of this and should he? 

MCNEIL:  Oh, I think he‘s going to suffer, but that‘s the risk you take when you take a high-profile case.  When you do that, if you win, you know, it‘s gravy from there.  But if you lose and especially if you do something wrong, then you‘re going to have to pay for it. 

ABRAMS:  Yes.

MCNEIL:  But I think that he will survive because, you know, you don‘t have to win all your cases in order to be successful in this business. 

ABRAMS:  Victor Sherman, I want you to listen to this piece of sound and tell me if this is what caused the problems for Mark Geragos. 

(BEGIN VIDEO CLIP)

MARK GERAGOS, SCOTT PETERSON‘S ATTORNEY:  We set the bar extremely high.  And that‘s to prove that Scott is not only factually innocent, but to figure out exactly who it is did this horrible thing to Scott‘s wife and to Scott‘s son and to their grandson. 

(END VIDEO CLIP)

ABRAMS:  Obviously that didn‘t happen.  Even the defense wouldn‘t say that they found out exactly who did it Victor.  So is that what‘s causing Mark Geragos so much trouble or is it the results?  Is the bottom line that people are looking for results and that Scott Peterson got the death penalty, and to be fair, many people thought this was a winnable case for the defense.

VICTOR SHERMAN, CRIMINAL DEFENSE ATTORNEY:  Well, I think they only thought it was a winnable defense or winnable possibility because of Mark‘s bravado at the beginning of the case convinced people that this was possibly an innocent client.  I think if he hadn‘t done that people would have looked at the facts and realized there was no way he was ever going to win this case. 

As Geoffrey Fieger says, I don‘t care who his lawyer was in this case, Scott Peterson was going to go down the facts were so overwhelmingly against him, but I think by creating this in a sense media circus in which he put forth the idea that he could prove the innocence of his client or that people couldn‘t prove it, created this whole entertainment for the public and for everybody that maybe Scott Peterson was innocent... 

FIEGER:  You know, Danny...

(CROSSTALK)

ABRAMS:  He‘s getting what he deserves...

(CROSSTALK)

ABRAMS:  ... that‘s what you‘re saying Victor.  Hang on one second, Geoffrey.  Do you think he‘s getting what he deserves Victor? 

SHERMAN:  Do I think that he‘s getting what he deserved?  I think that a more cautious attorney would have taken a different approach, but he was trying to create an atmosphere where he knew that the facts were terrible and he wanted to convince the public...

(CROSSTALK)

SHERMAN:  ... possibly a jury pool. 

ABRAMS:  I don‘t know that he did know, I got to tell you...

SHERMAN:  Oh, I think that Mark believes his client was innocent.  Oh I do...

ABRAMS:  I don‘t know if Mark believes his client was innocent.

(CROSSTALK)

ABRAMS:  Geoffrey...

UNIDENTIFIED MALE:  He doesn‘t believe that.

SHERMAN:  Oh yes he does. 

ABRAMS:  Geoffrey, go ahead.

FIEGER:  Let me just tell you, he takes risks with his client.  What he did with Winona Ryder is inexcusable.  That young lady is a felony now, is a convicted felon when she should have been pled to a misdemeanor with a diverted sentence. 

SHERMAN:  OK.  You don‘t know...

(CROSSTALK)

SHERMAN:  ... that they were going to offer her...

FIEGER:  Oh come on...

SHERMAN:  You don‘t know...

(CROSSTALK)

FIEGER:  I absolutely do know that a person who—with no criminal record is accused of shoplifting...

ABRAMS:  Geoffrey, I don‘t think that they were ready to offer her a misdemeanor.  I got to tell you. 

(CROSSTALK)

SHERMAN:  And he went to trial and she didn‘t get any jail time, so he took a chance of winning or losing the case and she got the same result...

ABRAMS:  All right...

FIEGER:  Geragos...

SHERMAN:  ... so what was the down side for her?

FIEGER:  Geragos told the press he was going to produce receipts. 

That she bought the merchandise...

(CROSSTALK)

FIEGER:  That was absurd.

ABRAMS:  Let‘s not retry the Winona Ryder...

FIEGER:  I know, but let‘s try this case.  By doing what he did, he subjected Scott Peterson to the death penalty, that‘s bad because...

SHERMAN:  Oh...

FIEGER:  ... he didn‘t prepare for it. 

(CROSSTALK)

SHERMAN:  That is a whole different—listen, you know and I know no matter what anybody had done in this case, because of the tremendous publicity of this case, Scott Peterson was going to get the death penalty...

ABRAMS:  Oh see, that‘s not...

UNIDENTIFIED MALE:  No, I don‘t believe...

ABRAMS:  ... publicity Victor is so insulting to the jurors, it‘s so insulting to Laci‘s family...

UNIDENTIFIED MALE:  I don‘t believe...

ABRAMS:  ... to suggest that the only reason they testified...

SHERMAN:  I didn‘t say...

ABRAMS:  ... in the penalty phase against him is because of the media. 

SHERMAN:  Dan...

ABRAMS:  It‘s all the media.  It‘s all the media. 

SHERMAN:  ... how many people in this country who have absolutely no prior record and no acts of violence in their background get the death penalty... 

ABRAMS:  When they kill...

SHERMAN:  Very, very few...

ABRAMS:  When they kill their wife and their unborn child...

SHERMAN:  Very, very few get the death penalty...

UNIDENTIFIED MALE:  Victor, Victor...

SHERMAN:  ... in the circumstances...

FIEGER:  Victor, you are right, except in this case Geragos had to be

·         because of that, Geragos had to be that much better and understand that so he could somehow mediate the possibility that these...

SHERMAN:  But he couldn‘t do both things at the same time...

ABRAMS:  All right...

SHERMAN:  He couldn‘t try to win the case...

(CROSSTALK)

ABRAMS:  Bob McNeil, I‘m going to come back to you in one second.  Take a quick break.  We‘ll talk more about this in a moment.  We‘ll also talk quickly about the chances on appeal.  (UNINTELLIGIBLE)

And prosecutors going after Michael Jackson say they have evidence that he‘s abused others in the past and now—that wasn‘t surprising that they say that, but now they are fighting to let the jurors hear about it. 

Plus, more fallout from the White House‘s botched nomination of Bernard Kerik for homeland security chief.  You heard the allegations against him, but will any of them lead to a further criminal investigation? 

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, more on the future of Scott Peterson‘s attorney and we‘ll also talk about his—Peterson‘s chances on appeal, coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

GREG BERATLIS, PETERSON TRIAL JUROR:  For me Mr. G. would be a person I would want to represent me in any situation.  I thought that he was very thorough.  I think that there was no stone unturned.  That he—I mean I think he did a very good job of presenting his side. 

(END VIDEO CLIP)

ABRAMS:  Robert McNeil, how important is it that the jurors in this case thought that Mark Geragos did such a good job? 

MCNEIL:  Oh I think it is extremely important because just that testimony by a juror indicates that they perceived of Mark Geragos that he was a very fine lawyer put on the best case that he could.  They don‘t blame him for Scott Peterson losing.  But remember this.  This case is far from over. 

It is very probable in this case that the judge precluded Mark Geragos from putting forth that evidence that he thought was going to prove that someone else committed this crime.  And the judge may have...

(CROSSTALK)

MCNEIL:  ... wrongfully excluded that evidence.  But we don‘t know that. 

ABRAMS:  But Bob, the reason the judge didn‘t allow it is because Mark Geragos couldn‘t link it up.  I mean he was just sort of trying to throw out random possibilities without any evidence to back it up. 

MCNEIL:  Dan, I understand that, but the problem is that‘s a judgment on the part of the judge.  That may have been an issue for the jury, not an admissibility question, but a question of weight.  And the judge could have erred there.  And in a case like this, the appellate court might overrule. 

ABRAMS:  Yes.  Geoffrey, that‘s a long shot, right? 

FIEGER:  Yes.  Yes.  Also, I want to talk about the jurors.  The jurors giving Mark Geragos praise is like being stabbed in the back.  If I‘m Mark Geragos after what they did to my client and sentenced him to death, the last thing in the world I want to hear is what a great lawyer and what a great job I did because I wouldn‘t believe it for a second...

ABRAMS:  It‘s sort of like being broken up with by a girlfriend and them saying that they want to be friends. 

FIEGER:  Exactly. 

ABRAMS:  Yes...

FIEGER:  I mean that is like—you know I respect these jurors for going out public and saying that, but I don‘t believe it for a second, especially—I know what goes on in the jury room.  And these people know how to be nice in public...

(CROSSTALK)

FIEGER:  ... so I wouldn‘t want to hear that. 

ABRAMS:  You know, Victor Sherman, what I‘m concerned about is that people get too obsessed with the results and the bottom line is I think Geragos is getting way more heat here than he deserves.  I mean there are all these articles out there about, oh, should he have put Scott Peterson on the witness stand?  All this nonsense—there was no way he could put Scott Peterson on the witness stand.  He never could and...

UNIDENTIFIED MALE:  Because Peterson is guilty. 

ABRAMS:  Well because he couldn‘t explain away his statement...

UNIDENTIFIED MALE:  Right. 

ABRAMS:  Look, my point is that I think that Geragos is getting too much heat at this point.  Let me let Victor in on this. 

SHERMAN:  OK.  Well there‘s no question that you are right about that, but isn‘t that our system?  You know, the higher you go up, the farther it is to fall, and that‘s all we‘re going now.  We have built him up.  Listen, the press and the media thought what a fabulous job he was doing for most of the trial until it came to the end and once Scott Peterson was found guilty, all of a sudden everybody decided what a bad job he was...

ABRAMS:  No, well it actually started during the defense case.  Mark Geragos...

SHERMAN:  All right, whatever...

ABRAMS:  ... did a great—it‘s not a whatever.  It‘s an important distinction.  The bottom line is he did a very good job, a really good job during the prosecution...

(CROSSTALK)

UNIDENTIFIED MALE:  Hey Danny...

(CROSSTALK)

ABRAMS:  ... but when it came to the defense case, the case there were witnesses who completely flopped...

FIEGER:  Danny, you‘re missing the biggest loss that Geragos had.  As a result of doing this case, this was his lost leader.  He lost the Michael Jackson case, the biggest payday and the biggest publicity—well, he probably get as much publicity in this case...

ABRAMS:  Yes.

FIEGER:  ... but the biggest payday he was ever going to get...

(CROSSTALK)

FIEGER:  ... and that hurt him bad. 

ABRAMS:  Well I don‘t know about payday...

(CROSSTALK)

FIEGER:  Oh yes.

ABRAMS:  I don‘t know how the bills are going...

FIEGER:  Jackson pays...

ABRAMS:  I don‘t know about the bills...

FIEGER:  Jackson pays.

ABRAMS:  All right...

(CROSSTALK)

ABRAMS:  Victor Sherman, I interrupted you.  I apologize. 

SHERMAN:  Let me just—Geoffrey, I‘m you won‘t let Mark have any slack.  Here it is the jurors come and say what a great job he‘s done...

(CROSSTALK)

SHERMAN:  ... and then what would you rather—would Mark rather come out and the jurors say what a horrible lawyer he was?  Come on...

(CROSSTALK)

SHERMAN:  ... give the guy a break. 

(CROSSTALK)

SHERMAN:  The jurors say...

FIEGER:  Victor...

SHERMAN:  ... what a great job he did and everybody is complaining that the jury hated this guy.  That was the common theme...

ABRAMS:  Yes.  All right...

(CROSSTALK)

SHERMAN:  ... and then all of a sudden...

(CROSSTALK)

FIEGER:  Victor, you‘re right, but I don‘t trust...

(CROSSTALK)

ABRAMS:  All right...

SHERMAN:  You have a prejudice against Mark obviously...

ABRAMS:  Look...

SHERMAN:  ... that you want to disregard the facts. 

ABRAMS:  ... the legal team is going to stick around.  Let me make one more comment here and that is, you know, I have always—I have known Mark Geragos for a long time.  I‘ve liked him.  I‘ve respected him.  I think that he did just about as good a job as he could do.  As I said before, I think there was some things he could have done differently, but you know, I think he generally did a very good job in this defense. 

You know, these days he‘s, you know, not—I don‘t think he‘s going to be appearing on this program, unfortunately, but you know, the bottom line is I expect, like Geoffrey Fieger has been angry at me at times of my coverage of some of his cases...

FIEGER:  That‘s right...

ABRAMS:  ... and look, we make up and kiss afterwards...

FIEGER:  That‘s right...

ABRAMS:  We‘re going to take a quick break. 

FIEGER:  I don‘t lose, though. 

ABRAMS:  Yes.  All right.  Anyway, coming up, prosecutors say Michael Jackson committed similar offenses in the past, and they want a jury to hear about them. 

And he‘s no longer the White House‘s choice for the top job at homeland security, but does that stop Bernard Kerik from facing a possible criminal investigation?  Would anyone take on the former head of the nation‘s largest police department?  And more importantly, should they? 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

MICHAEL JACKSON, ENTERTAINER, DECEMBER 22, 1993:  Throughout my life, I have only tried to help thousands upon thousands of children to live happy lives.  It brings tears to my eyes when I see any child who suffers.  I am not guilty of these allegations, but if I am guilty of anything, it is of giving all that I have to give to help children all over the world. 

(END VIDEO CLIP)

ABRAMS:  Remember that from 11 years ago?  Michael Jackson‘s child molestation trial is slowly creeping towards opening statement.  And if California prosecutors get their way, we may learn more about his sexual past, maybe even more than we want to know.  Prosecutors are trying to admit Jackson‘s—quote—“prior sexual offenses “ during his trial next month. 

The relevance of that evidence is under California law that it demonstrates a defendant‘s disposition, that it will demonstrate motive and intent, how a defendant created opportunities to achieve his goal.  And it will not only support the accuser‘s credibility in relating acts that took place in private, but also the credibility of other members of his family in relating the circumstances leading up to this private act. 

Now we know that Jackson paid one boy something 20, $25 million to settle a 1993 abuse allegation.  Another boy reportedly got two million to settle other charges earlier in the ‘90‘s, but Jackson has never been convicted of any prior sexual offenses and he denies any wrongdoing.  And in California, cases involving sexual offenses you can include what‘s called propensity evidence.  Prosecutors say the best way to prove that a man is a sex offender is to prove that he sexually offended again and again.  So, will this all be let in and what will it do to the defense case if it is? 

“My Take”—I think this evidence very well may be admitted.  It is the law in California and the defense will get an ample opportunity to try to prove it‘s not true through cross-examination.  Robert McNeil, what do you make of this one? 

MCNEIL:  Well Dan, let me first say this.  Michael Jackson was never charged with any other crime in his life... 

ABRAMS:  So true. 

MCNEIL:  ... of this nature.  The other thing is that the judge has to conduct a hearing, a full two (ph) hearing to determine whether or not this 1101B evidence should come in.  And in this case there are issues of motive.  You know, why was alcohol given? 

His intent, plan, so there‘s a possibility this evidence could come in, but as to each allegation, each incident that they are alleging, that case, that evidence has to be reviewed.  The evidence has to be before the court.  That means that if there was a victim out there, that victim has to come in here and testify.  And then, only then, will a judge make a decision...

ABRAMS:  Bob, does it matter that these deals—part of these civil deals the promise was we don‘t talk about it. 

MCNEIL:  Well, Dan, let‘s just consider one thing.  If people have been paid off, there also is a credibility question as to whether or not it happened... 

ABRAMS:  But that comes up on cross-examination...

MCNEIL:  Why did they accept money...

ABRAMS:  That‘s what I‘m talking about...

MCNEIL:  Well of course it does...

ABRAMS:  ... about being able to cross-examine these witnesses. 

MCNEIL:  But Dan, that comes out also in the hearing when the judge determines whether or not there is sufficient credibility that it happened.  It doesn‘t have to be proven beyond a reasonable doubt.  But by preponderance of the evidence, you know, is this real, is this true that something happened and Jackson paid for it.

ABRAMS:  Yes.  Very quickly, Victor Sherman, a thought on this? 

SHERMAN:  Well I think if the evidence comes in and unfortunately in California there is that statute.  We‘re talking about 1101 that permits it under certain circumstance, I think it‘s probably a killer for Michael Jackson.  I think if the jury hears that he‘s done it in the past on more than one occasion...

ABRAMS:  Yes.

SHERMAN:  ... and God forbid they hear that he paid millions of dollars, if they haven‘t already heard it, to cover it up...

ABRAMS:  But...

SHERMAN:  ... I think it‘s a death for him. 

ABRAMS:  But Geoffrey, very quickly, don‘t prosecutors get questioned as to why they didn‘t charge him before? 

FIEGER:  No, the 404B, which is under federal rule in California is the same as every state in the country on this evidence and I agree with Victor.  If it comes in, believe me, you are talking about a death sentence for Michael Jackson because...

ABRAMS:  He‘s not facing...

FIEGER:  Well, going to jail for Michael Jackson is the death sentence.  Believe me on that.  And if this evidence comes in, he gets convicted, period, the end. 

ABRAMS:  Bob, do you disagree with that? 

MCNEIL:  Well, you know what?  Let‘s don‘t jump to conclusions about that...

ABRAMS:  Yes.

MCNEIL:  ... because it really depends on the quality of evidence, even if the judge lets it in...

ABRAMS:  How good are the witnesses? 

MCNEIL:  ... the jury may not buy it.

ABRAMS:  Maybe they will be reluctant to come forward. 

MCNEIL:  That‘s right.

ABRAMS:  You know, maybe they‘ll sit up there, you know, we don‘t know

·         all right.  Let‘s move on—let me quickly do two other issues real quick.  The trial is only weeks away.  Jackson‘s attorneys—quote—

“reluctantly and hesitantly requesting a six-week delay saying a trial on January 31 impossible.  They gave a laundry list of reasons why, putting the blame on the state.

Some of their reasons include the prosecution handing over more than 14,000 pages of discovery in the past few months.  That they provided a defective witness list.  They announced four new expert witnesses.  They continue to request and execute search warrants.  They fail to provide a significant amount of discovery.  And the defense attorneys say they also need time to prepare to cross-examine prosecution witnesses who were involved in a previous civil suit against Jackson.  Bob, it seems to me they have got a pretty good argument here as to why they need more time. 

MCNEIL:  Dan, I agree with you totally and I believe that the judge will grant this continuance.  They‘re only asking for six weeks.  In a major case like this with over 22,000 pages of evidence, it would be appropriate to grant a continuance, especially when the attorneys say they‘re not prepared. 

UNIDENTIFIED MALE:  Yes...

MCNEIL:  That‘s a due process violation to force them to try the case...

(CROSSTALK)

MCNEIL:  ... and it could hurt Jackson in the end. 

FIEGER:  They shouldn‘t ask for it. 

ABRAMS:  Well...

FIEGER:  They shouldn‘t ask for it because they say the prosecution really needs the time, and they are right.  The prosecutor will be more unprepared than a good defense counsel.  Make the prosecutor go fast in this case.  They are better off. 

ABRAMS:  All right...

MCNEIL:  Geoffrey...

ABRAMS:  Quickly. 

MCNEIL:  But Geoffrey, they should have made that decision a long time ago. 

ABRAMS:  Yes...

MCNEIL:  See, if they tried this case last—you know earlier...

FIEGER:  You‘re right.  You‘re right...

MCNEIL:  ... six months ago, they would have less...

(CROSSTALK)

FIEGER:  You‘re right.

ABRAMS:  Another thing that came out recently—the alleged victim‘s fingerprints found on an x-rated magazine seized from Neverland last year.  Jackson‘s fingerprints found on the same magazine.  Now authorities are looking for fingerprints on a wine bottle taken during the same raid, presumably to prove that Jackson gave the boy alcohol and showed him pornography before molesting him. 

Victor Sherman, you know, yes, it‘s important, but fingerprint on the magazine, fingerprint on a wine bottle doesn‘t necessarily show that Michael Jackson was there at the same time that it was happening, right? 

SHERMAN:  This is not a make or break part of the case...

ABRAMS:  Yes.

SHERMAN:  ... whether, you know, there‘s a million reasons why his fingerprints could be on a magazine.  Hey, it‘s not a good fact obviously, but I mean this is not going what‘s going to decide this case whether his fingerprint was there at the—on a magazine or a wine bottle.  I would think the wine bottle would even be a little bit worse.  But, you know, this is not the relevant fact.

ABRAMS:  Geoffrey? 

FIEGER:  Listen, you combine it with the prior acts, a fingerprint, and the child‘s testimony, that translates into a lengthy prison sentence for a man who can never go to prison. 

ABRAMS:  This is going to be a tough—I think this is going to be a tough case for prosecutors.  Bob, final thought.

MCNEIL:  I‘ll tell you this.  One, they got to put it over—they‘ve got to bring motions to try to exclude this.  They‘ve got to really conduct vigorous hearings to oppose this evidence coming in because I agree with the other two witnesses—I mean the other two guests today that if the evidence comes in, it could be devastating to Michael Jackson. 

ABRAMS:  About the fingerprints? 

MCNEIL:  Oh not about the fingerprints. 

ABRAMS:  Oh, OK...

MCNEIL:  I‘m talking about...

ABRAMS:  Yes...

MCNEIL:  ... the evidence of the other...

ABRAMS:  Right...

MCNEIL:  ... crimes that...

ABRAMS:  I got to—I don‘t know what to make of this case yet because everything is sealed.  So as a result, we don‘t get to scrutinize the evidence, so...

FIEGER:  Yes, but the jury gets to scrutinize Michael Jackson...

(CROSSTALK)

FIEGER:  That‘s not a good thing.

ABRAMS:  We shall see.  Bob McNeil, Victor Sherman and Geoffrey Fieger, thanks a lot.  Good show.

Coming up, will Bernard Kerik‘s own admission that he failed to pay taxes on an illegal family nanny lead to criminal trouble?  And what about the other allegations?  Shady finances?  Even one alleged deal with a possible mobster?

And this man said six hunters used racial slurs when they ordered him off their property.  He said he fired back killing them, six of eight.  Now his lawyers say they may use his cultural differences as a defense strategy.  It wouldn‘t be the first time it was used. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Bernard Kerik was the president‘s pick to head homeland security until he told them he had not paid taxes for his nanny. 

·         could Kerik be facing any sort of criminal investigation?  First the headlines. 

(NEWS BREAK)

ABRAMS:  We‘re back.  The fall of Bernard Kerik from 9/11 hero when he was New York‘s police commissioner, second only to his mentor Rudy Giuliani to homeland security director nominee entrusted by President Bush with keeping the nation safe from terror and now to a seemingly beleaguered former public official fighting off daily allegations of possible ethical lapses, maybe even criminal violations from Kerik‘s own admission he failed to pay taxes on a family nanny who may have been an illegal alien to claims he helped a friend get a job with a construction company with alleged mob ties and allegations now that he took money from the friend when he was still a city official. 

This is all coming out—primarily it‘s in “The Daily News” and a history that includes a civil arrest warrant for failing to pay maintenance bills on some property.  A few minutes ago Kerik‘s attorney, Joe Tacopina, held a news conference to defend his client.  He called Kerik a hero, blamed some of his problems on unnamed enemies, and made a partial explanation for the nanny issue. 

(BEGIN VIDEO CLIP)

JOE TACOPINA, BERNARD KERIK‘S ATTORNEY:  He has accountants handling his finances.  When he did the proper state paper work for the nanny, the taxes were already in the process of being rectified.  The back taxes were being rectified.  It was done simultaneously. 

(END VIDEO CLIP)

ABRAMS:  Kerik insists he only walked away from homeland security because of the nanny issue.  Let‘s take this one by one.  “My Take”—some of these allegations are serious.  In fact, I‘m much more concerned about the financial allegations than the nanny business.  But I‘d be surprised if any of this ends up in a criminal investigation. 

William Sullivan is a former federal prosecutor and Lisa Pinto is a former New York State prosecutor.  Thanks.  Good to see both of you.  All right, let‘s go through these one by one.  Let‘s start with the nanny. 

Number one, the allegations that he hired an illegal alien as a nanny and he failed to pay nanny taxes.  The possible penalties for this are fines for not completing immigration paperwork, fines for hiring an illegal alien, pay IRS back payroll taxes with interest plus possible fines.  Bill Sullivan, this is really going to turn out to be nothing more than that, right? 

WILLIAM SULLIVAN, FORMER FEDERAL PROSECUTOR:  Absolutely.  These things happen routinely.  Unfortunately a lot of people have homecare issues.  We saw Kimball Wood (ph), a sitting federal judge, had the same problems, Zoe Baird, U.S. attorney general nominee had the same issues.  It is very common for people to overlook these issues or have other people pursue the documentation or simply not to pursue the documentation at all.  Quite frankly, however the issue was raised with the Zoe Baird and the Kimball Wood (ph) concerns and it should be on peoples‘ radar screen, but again, it‘ll be rectified by the fines...

ABRAMS:  Yes.

SULLIVAN:  There should be no criminal prosecution. 

ABRAMS:  Lisa Pinto, you agree with that, right? 

LISA PINTO, FORMER NEW YORK PROSECUTOR:  Absolutely.  I mean I think Bill agrees the only cases that get prosecuted are those of so-called poetess (ph), immigration—you know, when a horde of immigrants are brought in illegally through the country, when there is some sort of slavery situation, when a big corporation hires as a routine practice lots of illegal aliens.  But not...

ABRAMS:  Yes.

PINTO:  ... I mean we would have to indict half the lawyers in New York City, I think...

ABRAMS:  Yes, this is a legal criminal matter, a non issue.  OK...

SULLIVAN:  Lisa‘s right.  (UNINTELLIGIBLE) had the issue, the big corporation there.

ABRAMS:  Issue two, failure to disclose.  The allegation is that he took thousands in cash and gifts without making a public disclosure while head of the NYPD and New York Corrections Department.  The possible penalties for something like this could be misdemeanor failure to report gifts punishable by up to one year in prison and $1,000 fine.  Lisa, this is more serious. 

PINTO:  This is to me it‘s also unseemly when you are in a position of trust such as Department of Corrections or police department.  I mean he got $18,400 in goods and services from an acquaintance or a friend by the name of Lawrence Ray whom he had subsequently recommended for a job.  I think this was something he should have declared. 

He should have put it—there is no paperwork indicating that he let the city know about this and you know, when you combine that with the fact that he then gave—that there was then some sort of allegation that the company Lawrence Ray worked for received city paying contracts, I think it doesn‘t pass the smell test.  Plus, he‘s paid fines for this in the past.  If you recall, he sent some detectives to Ohio to research his birth mother, not appropriate use of city funds, but he did the right thing.  He paid the fines on that. 

ABRAMS:  Bill, what do you make of it?

SULLIVAN:  Well I agree with Lisa‘s outline of the factual scenario and what the applicable law is.  I again believe that no prosecutor would undertake to pursue this case in light of these circumstance.  Traditionally self-reporting, even though it came about in this context is something that most prosecutors give great deference to and are lenient with regard to.  Here‘s an individual who worked diligently post 9/11.  His reputation in terms of what he did for the country in that regard was strong.  He went over to Iraq.  He was proposed, nominated to be Department of Homeland Security head.  I think this type of disclosure made in this way would militate against any prosecutor convening...

ABRAMS:  But...

SULLIVAN:  ... pursuing...

ABRAMS:  ... bottom line, yes or no, investigation, do you think it‘s going to happen on this, Bill? 

SULLIVAN:  I say no.

ABRAMS:  Lisa.

PINTO:  I say he should pay some fines. 

ABRAMS:  But you don‘t think they‘ll --  you don‘t think they‘re going to open...

PINTO:  I don‘t think  -- no, I don‘t think so...

ABRAMS:  OK.  All right...

PINTO:  ... not on this issue. 

ABRAMS:  Issue three, the allegation—expensive apartment renovations when he was struggling financially.  A contractor was later sentenced in a separate bid rigging scandal.  And there was apparently a warrant out, a civil warrant, for—over a bill for a condo that they say that Kerik—that they believe Kerik eventually paid the bill on this. 

(CROSSTALK)

ABRAMS:  Go ahead, Lisa. 

PINTO:  Dan, that is a total non-issue to me.  First of all, it was a civil arrest warrant issued by a judge in the lawsuit between Kerik and a co-op corporation.  I don‘t know how many viewers live in co-ops, but often their decision of how to handle the co-op funds don‘t always agree with the individual tenant and you can withhold maintenance dues as sort of  -- some sort of objection to that.  Kerik when he was—when the collection agency contacted him about these bills, he paid them...

ABRAMS:  Right.

PINTO:  The warrant was withdrawn.  So there was no outstanding warrant against him. 

ABRAMS:  But Bill, what is a civil arrest warrant?  I mean it sounds -

·         arrest warrant sounds so serious. 

SULLIVAN:  Yes, it‘s actually, you know, akin to a motion to compel the appearance of an individual in court for purposes of addressing the issue.  I don‘t think his liberty, I don‘t believe, was ever in jeopardy. 

ABRAMS:  All right.  So bottom line is that this is going to—this is a political issue.  There—you know certainly allegations here of improper conduct.  But it doesn‘t sound like Bernie Kerik is in any criminal legal trouble according to our two experts.  And I agree with them.  William Sullivan, Lisa Pinto, great to have you. 

PINTO:  Thank you.

ABRAMS:  Thanks a lot. 

SULLIVAN:  Thanks Dan. 

ABRAMS:  Coming up, he is accused of killing six hunters, but he says they yelled racial slurs at him before he shot them.  Now his lawyers may use a cultural defense to try to get him off.  What does that mean?  So, if I was brought up to beat on my sister, that means I can beat up on my wife, too? 

And in a cell phone obsessed world, airplanes are one of the few places where you can avoid them.  Well, that could be changing.  But please let us fly in peace.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Remember the story of the man in Wisconsin who last month shot eight hunters, killing six of them.  Well we‘ve learned that his attorneys might try to use what‘s called a cultural defense in the murder trial.  It is essentially a strategy that tries to explain why a client raised in a particular culture may have committed an acted that is clearly seen as criminal by the American justice system.  In this case the defendant is an immigrant from Laos who claims the hunters berated him with racial slurs before he shot them. 

Gosh, it sounds like a long shot here, that someone‘s culture could explain away a murder, but if the defense is used, it wouldn‘t be the first time.  In 1985 a Japanese immigrant named Femika Kamura (ph) drowned her two young children off the coast of California after learning her husband was having an affair.  In Japanese culture, apparently there is a practice of killing one self and one‘s children to save a family from the shame brought on by extramarital affairs.  A cultural defense helped her escape first-degree murder charges and get a sentence of just a year in prison and five years probation. 

In another case, an Eskimo man was acquitted of molestation charges after it was determined through expert testimony that his playful attempts to pull down the pants of a 12-year-old child at a birthday party was part of a tradition of teasing behavior meant to teach young boys how to protect themselves from attack.  “My Take”—I don‘t see how we can run a justice seem where all people are created equal and yet we provide cultural defenses only for a few. 

Why is this different than someone who grew up poor or was beaten or molested as a child?  Should they all be able to claim a cultural defense?  To allow these defenses to succeed encourages chaos in our justice system. 

Joining me now Alison Dundes Renteln, a professor at the University of Southern California and an author of the book “The Cultural Defense” and criminal defense attorney Edward Smith Jr. who successfully used a cultural defense in a homicide case in Maryland.  All right.  So I‘m going to guess that both of you are probably going to disagree with me on this...

(CROSSTALK)

ABRAMS:  ... but Professor Renteln, let me start with you.  How does this make sense in the context of our criminal justice system that some people can say, well, my culture is what led me to do it, and yet in our society we have a lot of people who had problematic upbringings and they can‘t use it? 

ALISON DUNDES RENTELN, AUTHOR, “THE CULTURAL DEFENSE”:  The cultural defense allows people who have a different worldview to explain that worldview to the legal system, and it‘s really important for justice to be done for the court to have that information.  It may be that the context for the other people you mention should also be taken into account, but that would be more like a sub cultural defense or something called the rotten social background defense.  But the point is that the court can evaluate the mental state of a defendant without having that kind of contextual information. 

ABRAMS:  But it‘s not just in sentencing.  See I‘m OK with using this sort of information in sentencing, but you are talking about in determining actual guilt, right? 

RENTELN:  Well, yes, in some instances it‘s appropriate.  For example, when individuals from Southeast Asia use folk medicine, something called coining, that‘s used to cure children and it heals them.  And unfortunately, people who are not familiar with that think that it‘s child abuse when it‘s in an innocuous form of folk medicine...

ABRAMS:  But see...

RENTELN:  So if the court doesn‘t have...

ABRAMS:  But if it‘s innocuous, they‘re not going to be charged with a crime.  I mean the bottom line is if they‘re giving their kid something that just tastes bad, they are not going to be charged with a crime. 

RENTELN:  Oh, coining is a kind of a coin rub where the body is rubbed with mentholated (UNINTELLIGIBLE)...

ABRAMS:  Oh...

RENTELN:  ... and a coin with a serrated edge is used...

ABRAMS:  All right...

RENTELN:  ... and it leaves bruises on a child.  It looks like—kind of like a hickey.  It‘s a burst blood vessel.  So people who don‘t know what it is think that it looks really terrible...

ABRAMS:  Got it...

RENTELN:  ... and that it‘s child abuse when it isn‘t.  So, if a court doesn‘t have information about folk medicine, then there can be very serious consequences for families. 

ABRAMS:  Mr. Smith, it seems to me, though, that‘s very different than when you‘re talking about killing someone or physically—you know, when you‘re talking about rubbing a coin on someone, I‘m not going to say that I agree with it, but at least to me it‘s not comparable to suggesting that somehow one‘s culture can lead them to kill. 

EDWARD SMITH, JR., CRIMINAL DEFENSE ATTORNEY:  Well, I have to agree with you on that score.  There‘s no doubt that killing is killing in any culture.  What we attempt to do by way of defense is to merely bring in different cultural aspects of traditional defenses to self-defense.  In my particular case, what we were dealing with was what was called a joint family in (UNINTELLIGIBLE) or Asian Indian culture.  And this explained not only the motivation, which led to the self-defense as it related to the family pressures of the husband and what we believe was an attempt by the husband to bring his wife into line as Indian women are looked on as chattel. 

ABRAMS:  But when you come to this country, it just seems to me that you have to abide by the rules here.  And the reason I say that is because I just fear you‘re opening up the door to all sorts of shenanigans when it comes to defenses.  If you start allowing this, I can‘t see how you distinguish this.  You can call it something different...

SMITH:  Well...

ABRAMS:  ... but as a practical matter, to me it‘s the same thing as someone...

(CROSSTALK)

SMITH:  First of all, everybody is entitled to the best defense that they can mount. 

ABRAMS:  Well that‘s right. 

(CROSSTALK)

ABRAMS:  I‘m not blaming the lawyers...

RENTELN:  Yes, but...

ABRAMS:  ... but I‘m saying that we as a society should say no. 

SMITH:  Oh no.  We can‘t do that because...

(CROSSTALK)

SMITH:  ... the system doesn‘t allow it.

RENTELN:  Let me just say that I think we need to make a distinction between whether evidence is allowed to be permitted and whether it can affect the disposition of the case.  I think what we‘re saying is that the information about a person‘s cultural background needs to be taken into account.  It‘s then up to the judge and the jury how much weight to give it.  And the right to culture is part of human rights law and if the right to culture means anything, it should at least mean that people have the right to tell their stories to court. 

ABRAMS:  Yes, but the right to culture doesn‘t mean that you have the right to then bring in everything in your background to say this explains why I killed. 

SMITH:  No, that is the scattergun approach.  We‘re not talking about that.  What we‘re talking about is...

RENTELN:  Well...

ABRAMS:  Let Mr. Smith finish.  Go ahead Mr. Smith.

SMITH:  Yes.  We‘re talking about a very limited kind of defense...

SMITH:  ... on traditional.  We‘re not talking about something that‘s from Mars.  We‘re talking about an individual, for instance, who has a legitimate right to claim self-defense as a result of what has occurred in their culture.

ABRAMS:  Yes.

SMITH:  Now, it may not...

RENTELN:  that‘s right...

SMITH:  I‘m sorry, Doctor...

RENTELN:  Provocation would be another example.

(CROSSTALK)

RENTELN:  I‘m sorry.  Provocation would be another example...

(CROSSTALK)

ABRAMS:  But provocation of meaning like your husband, your wife cheated on you is not provocation...

(CROSSTALK)

ABRAMS:  ... to kill, period. 

(CROSSTALK)

ABRAMS:  I mean...

(CROSSTALK)

ABRAMS:  ... they should play by the same rules that women...

(CROSSTALK)

ABRAMS:  ... who are abused play by in this country, and that is you may get manslaughter and you are entitled to that because...

SMITH:  Right.

ABRAMS:  ... we talk about what‘s going on in the mind of that woman. 

That is fine.  If we want to say that that provokes the person, fine...

(CROSSTALK)

ABRAMS:  ... but they have to play by the same rules.  Final word, Professor.

RENTELN:  But the point is that the cultural defense doesn‘t have to lead someone to be acquitted.  It could just reduce punishment...

(CROSSTALK)

RENTELN:  ... from murder to manslaughter as in provocation. 

(CROSSTALK)

RENTELN:  Those are existing...

SMITH:  In my case they were acquitted...

RENTELN:  Those are existing...

ABRAMS:  Yes and in his case they worked...

(CROSSTALK)

ABRAMS:  I mean look...

RENTELN:  The point is the cultural defense doesn‘t have to lead to acquittal.  It just means that the evidence is going to be taken into account. 

ABRAMS:  Yes, I understand.  I understand.

RENTELN:  And it‘s very important that—in my book I show a wide range of cases where it‘s legitimate to use cultural defense...

(CROSSTALK)

ABRAMS:  Well look...

RENTELN:  I agree that the use of...

ABRAMS:  ... there may be legitimate cases...

RENTELN:  I think the use of violence...

ABRAMS:  ... but if they suggest in this case that this hunter can shoot six people because they used ethnic slurs and in his society that‘s awful, that to me is a bunch of hooey.  Anyway...

RENTELN:  Well the point is provocation...

ABRAMS:  All right.  I get it.  I get it. 

(CROSSTALK)

ABRAMS:  Professor and Edward Smith, I apologize for interrupting you...

SMITH:  Oh, that‘s all right.

ABRAMS:  ... I‘ve got to run.  You guys are great guests.  Thanks a lot for coming on the program...

SMITH:  Thank you.  You take care now. 

ABRAMS:  Interesting stuff.

SMITH:  All right.  Bye-bye. 

ABRAMS:  Coming up, I use cell phones as much as anyone, but when I‘m flying, I‘m very happy to turn it off.  Now the FCC is investigating allowing people to use cell phones on airplanes.  I say it‘s a bad idea.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, cell phones already annoying in trains, buses, restaurants, movie theaters.  Now the last cell free refuge could soon be under attack, airplanes.  I say keep the plane cell phone free.  It‘s  my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—I just got off an overnight red-eye flight from San Francisco and while the people behind me were speaking a little too loudly, I was still able to sleep, do my own thing.  The one thing I always appreciate when flying is that apart from the occasional quick phone call on those prohibitively expensive air phones, there‘s little noise on planes.  I can work.  I can sleep.  I can watch movies.  It is cell-phone free, a true piece of acoustic heaven in the sky.  Well so you can imagine my surprise and dismay when I arrived at the office, one of the first stories that was mentioned was a new FCC investigation to determine whether they should relax the ban on cell phones in the air. 

Cell phones on planes?  People gabbing in phones with la-coo-coo-raja (ph) song as a ringer going off while my neighbor is basically sitting on my lap?  Just say no.  Even if the FCC determines they‘re safe, the airlines should determine that they are unsafe to a flyer‘s sanity.  Maybe they can create a special area where calls can be made, fine, or a cell phone section of the plane with a divider, OK, or restricted to serious emergencies at your seat.  But please, allow me to read, to sleep, or even to watch the movie “Elf” in peace.  It is my final refuge away from my electronic tether. 

Coming up in 60 seconds, I‘m not the only one bothered by people on cell phones or for the civil or uncivil responses people sometimes get when they won‘t shut them off. 

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night in my “Closing Argument” I said in just about every case where there‘s media coverage, the defendant tries to shift attention away from being indicted by prosecutors or a grand jury and/or convicted by a jury, try to deflect it to the media instead.

Diane Bazzano from New York writes, “You should be ashamed of yourselves.  The blood of a possibly innocent man is on your hands.  I hope you can all live with yourselves in the future.” 

I won‘t even defend myself, but that is just so insulting to the jurors and to Laci‘s family to say they all became falsely convinced by the media.

Susan from California, “You need to check the hypocrite meter.  While praising the Peterson jury and their earnestness, you consistently denounce O.J. Simpson‘s verdict of innocence.  Either you believe in the sanctity of a jury or not.  You can‘t have it both ways.”

No, Susan, there‘s no hypocrisy in believing in the sanctity of both, criminal verdict and yet believing that one got it wrong.  But I never suggested the Simpson jury did what it did because of the media.  But Susan, I‘ll bet you don‘t believe in the sanctity of the civil verdict in the Simpson case.  I accept them all. 

Sherry Sharos in Illinois gets it.  “The media does not commit crimes, invent or manufacture evidence.  The families were grateful to have the media looking for Laci and Conner alive.  The media would be remiss in not reporting the facts of the case.  I didn‘t like some of the facts you brought out on the case, but at least I knew you were reporting facts.  Don‘t apologize for keeping it real.”  Thanks Sherry.

Finally, our “Legal Lite”.  This one from St. Paul, Minnesota, where 79-year-old retiree Bill Stevenson in trouble now.  Last July, Stevenson and a friend, 74-year-old Sten Gerfast having lunch at a bagel shop.  A 40-year-old, Jesse Tabor, walks in talking loudly, cursing on his cell phone.  According to Mr. Gerfast—quote—“When I heard that kind of stuff coming in my hometown, I thought somebody has got to do something. 

Gerfast says he walked up to Tabor and said would you mind, sir, to go outside and take your call?  Apparently Tabor did.  He started cursing at Gerfast.  Seventy-nine-year-old Stevenson got up to help his friend, tried to grab the phone, a tussle followed.  Stevenson lost his glasses.

Tabor went to the floor.  All three men wound up charged with disorderly conduct.  Gerfast was acquitted.  But the two guys who tried to shut him up are getting a lot of support.  That does it for us tonight.

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

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