updated 1/20/2005 1:27:46 PM ET 2005-01-20T18:27:46

Guest: Bradford Cohen, Jennifer Massey, Stacy Rotner

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  We have grown an appreciation for our freedom and we have grown in appreciation for the men and women who defend it. 

(APPLAUSE)

BUSH:  At this very hour, more than a million of our fellow citizens are standing watch for America.  We are grateful to them all.  And we are grateful to their families.  We pray for our troops.  We pray for their families.  And on this night as we celebrate the blessing of liberty, America honors the spirit of service that keeps our nation strong and free.  Tomorrow I will take an oath and deliver an inaugural address. 

You‘ll be pleased to hear I‘m not going to deliver it twice.  But I will speak about freedom.  This is the cause that unites our country and gives hope to the world and will lead us to a future of peace.  We have a calling from beyond the stars to stand for freedom and America will always be faithful to that cause. 

Thank you for coming.  May God bless you. 

(APPLAUSE)

BUSH:  And may God continue to bless our great nation.  Thank you, all. 

LESTER HOLT, MSNBC ANCHOR:  President Bush greeting the crowd at the Celebration of Freedom event on the ellipse here in Washington, D.C., perhaps offering a small preview of his inaugural address tomorrow, which you will see here live on MSNBC. 

That‘s going to wrap it up for me in Washington.  Of course, full coverage tomorrow beginning with “IMUS” and a live interview with Vice President Dick Cheney.  And then, of course, Chris Matthews picks our coverage up with full coverage all day of the inauguration and parade to follow. 

I‘m Lester Holt in Washington.  Let‘s send it back now to New York, Dan Abrams and THE ABRAMS REPORT.

DAN ABRAMS, HOST:  Coming up, from the board room to the courtroom, three attorneys who got fired by Donald Trump on “The Apprentice” are here to review all the big legal stories.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  (UNINTELLIGIBLE) balance sheets and bottom lines, but for most, it‘s now back to closing arguments and cross-examinations.  Today‘s cases, two police officers caught on tape beating a teenager, fired for their behavior.  They say another cop got off easy because he‘s black.  Jurors agree, so what do they deserve?  The jury says millions. 

And Michael Jackson is reportedly going to react to leaked grand jury testimony in an interview.  Would “The Apprentice” castoffs counsel their clients to go public? 

Plus, two big trials for two big execs begin this week charged with stealing billions from shareholders.  In one, extramarital affairs will now be a central issue.  What do our CEO-wannabes have to say about that? 

The program about justice starts now.  

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  Tonight we‘re talking to three attorneys and hopefully one soon-to-be attorney who were all fired by The Donald.  Joining us tonight for the hour are the four legal minds who competed for its top position with Donald Trump on last season‘s “Apprentice”.  Jen Massey made it all the way to the final round before Losing out to Kelly Perdew.  She now works as a litigator for a law firm in San Francisco. 

Bradford Cohen was second fired on the—he was fired on the second episode after giving up his immunity.  Those of you who followed the case remember that.  He has his own law firm in Florida.  Stacy Rotner was fired after The Donald complained she did too much complaining.  She now works at a big law firm in New York.  And we‘re hoping that Kevin Allen will also be joining us.  A snowstorm in Washington, D.D. is slowing him down.  If he makes it to the studio, we will bring him in. 

All right, so first up on the docket:  A Los Angeles jury awarded over $2.4 million to a former police officer and his partner on Tuesday finding that even though the two officers who were caught on tape punching, seemingly hitting a black teenager during an arrest, that they were discriminated against because they were white. 

Michael Okwu has the story from Los Angeles. 

(BEGIN VIDEOTAPE)

MICHAEL OKWU, NBC NEWS CORRESPONDENT (voice-over):  It was a video that conjured images of the Rodney King case—a white police officer using what some called excessive force to subdue an African American teenager.  Now more than two years later a twist—a jury has awarded the officers involved more than $2.4 million. 

UNIDENTIFIED MALE:  I think officers will look and see if their rights are being violated. 

OKWU:  A bystander videotaped Inglewood police officer Jeremy Morse punching a handcuffed Donovan Jackson, slamming him into a police car.  Morse said Jackson had grabbed his groin.  The case would go to two juries, both deadlocked on assault charges.  But even before he was tried, Morse was fired. 

His partner, Bijan Darvish, suspended 10 days.  Morse and Darvish sued the city of Inglewood for reverse discrimination arguing that an African American officer involved in the arrest only received a slap on the wrist. 

(on camera):  Inglewood‘s mayor and police chief expressed shock at the verdict, the mayor calling it inflated and inappropriate.  The lawyer for the officers expects the City Council to appeal. 

Michael Okwu, NBC News, Los Angeles. 

(END VIDEOTAPE)

ABRAMS:  All right, thanks Michael.  “My Take”—it seems pretty clear the city overreacted when it fired Morse without more investigation.  In fact, back in September, an independent arbitrator in the case found that Morse shouldn‘t have been fired.  But that same arbitrator ruled that Morse acted improperly during the arrest. 

So he acts improperly and as a result of that gets $1.6 million simply because one of the other guys who made the arrest was black and wasn‘t fired?  I don‘t get it.  My guests, again, three former contestants from NBC‘s “The Apprentice”, all attorneys, Jen Massey, Bradford Cohen, and Stacy Rotner. 

Brad, what do you make of this? 

BRADFORD COHEN, FORMER “APPRENTICE” CONTESTANT:  It is pretty incredible the amount that was awarded.  I was surprised at just the sheer amount that was awarded in this case. 

(CROSSTALK)

COHEN:  I don‘t know what the damages are. 

ABRAMS:  Why are they entitled to anything?  I mean if saying it is reverse discrimination, right? 

COHEN:  Sure.

ABRAMS:  But they are not saying they were fired because they were white.  They are saying we were treated differently because we were white and therefore they are entitled to millions? 

COHEN:  Well the thing is that is what discrimination is.  I don‘t know if they are entitled to millions, but certainly being treated differently than either an African American or if an African American is being treated differently than, you know, a Caucasian, obviously that is what discrimination is all about. 

ABRAMS:  But why isn‘t the remedy to give them their jobs back or something...

(CROSSTALK)

ABRAMS:  Why do they get the millions? 

JENNIFER MASSEY, FORMER “APPRENTICE” CONTESTANT:  Well, again, I think what‘s going on here is the message is being sent by this jury to the city that this kind of discrimination should not take place in the future.  You have to treat all of your policemen similarly whether they are African American, whether they‘re right—or they‘re white.  So, I think it‘s a matter of making sure in the future the city is incentivized to they treat their cops fairly. 

ABRAMS:  You know, what is your take on this, Stacy? 

STACY ROTNER, FORMER “APPRENTICE” CONTESTANT:  I think that Jen said it really well.  I think that juries are trying to make a statement and going forward from this point on and reverse discrimination is not going to be stood for. 

(CROSSTALK)

COHEN:  I think it is a ridiculous amount. 

ABRAMS:  Yes, I mean you know send a message, I mean that‘s fine.  You want to send a message, but you don‘t send a—let‘s take a look at the video.  If we can slow down the video again to show exactly what happened here.  All right.  Can we put that up?  There we go.

All right.  So watch.  There he goes.  Boom.  All right.  So he claims that the young man grabbed his testicle.  All right.  Maybe.  But the police believe that there was absolutely no excuse for that, for that punch in the face, for knocking him down on the car, and now they‘re getting all of this money because supposedly they treated him differently. 

Let me read an excerpt from the officer‘s complaint.  Plaintiffs allege that Officer Crook, an African American, was treated differently by the Inglewood Police Department because of his race.  Although Officer Crook was found to have used force by striking Jackson with his flashlight and failed to report the use of force, he was simply suspended for four days without pay. 

I don‘t understand.  This sends a message that to me that, hey, if you‘re fired and forget about a police officer, not a police officer, if you‘re fired from your job and you want to get a big payout and someone else wasn‘t treated exactly the same way as you, whether you were—I mean it seems that the arbitrator said they acted improperly.  There is no question about that.  That Morse acted improperly and yet even though he acted improperly, he gets millions. 

ROTNER:  I think they‘re just—they‘re acknowledging that it was out of self-defense to some extent, and that they‘re looking—I mean to see the videotape that they heard what happened before.  And I think that that was extremely relevant. 

(CROSSTALK)

MASSEY:  Again ultimately, I don‘t think this case is about the brutality involved, which obviously there was a degree of brutality as we can see in the videotape.  The heart of this case is, is the city treating its different police officers the same?  And they are not.  And obviously they are trying to send out a message that this can‘t take place in the future. 

COHEN:  Yes, but the amount is inappropriate...

ABRAMS:  Right.

UNIDENTIFIED FEMALE:  But the amount may be...

COHEN:  The amount is ridiculous.

UNIDENTIFIED FEMALE:  The amount may be reduced.

ABRAMS:  You‘re entitled to...

COHEN:  I think the amount is ridiculous. 

ABRAMS:  What would have been an appropriate amount? 

COHEN:  I‘m you see what their lost wages were...

ABRAMS:  Yes.

COHEN:  ... for getting fired from the job and to see maybe—if they‘re saying they can‘t get a job in the future, I can understand some amount to compensate for that, but $1.6 million this guy, you know...

ABRAMS:  The judge, I bet this will be reduced on appeal.

COHEN:  I would imagine that it would.  Obviously, the city is going to appeal it.  If it‘s not going to be reduced, it might be, you know, I don‘t know what kind of error took place during the trial, so an appeal is always an available issue.

ABRAMS:  And this is, again, one more from the officer‘s complaint.  Morse and Darvish have been criminally indicted and have been subject to what amounts to a witch-hunt by the City Attorney‘s Office.  The plaintiffs are sadly aware that the African American officer despite being charged with a more severe offense than Darvish has not been indicted.

Again, it doesn‘t sound to me like they‘re saying with regard to Morse he did anything wrong.  They‘re saying, but the other guy did something just as bad and therefore I‘m entitled to millions.  I don‘t get it. 

All right, Jen, Bradford, Stacy is going to stick around.  Because coming up, just 10 days to go until Michael‘s trial.  He‘s apparently speaking out about thousands of leaked documents that suggest that he‘s a pedophile.  He‘s under a gag order, but the judge reportedly giving him a chance to clear his name before jurors are selected. 

And all my guests were fighting to be a top executive for The Donald.  So, what do they have to say about the corporate trials heading to court this week?  In one of them, an exec‘s extramarital affairs will be front and center. 

Plus, everybody knew this man made $1 million in 2000 on the first “Survivor”, but the folks at the IRS must not be big TV reality fans.  It took them years to find out that he allegedly didn‘t report the money on his tax returns.  What do our reality guests make of that?  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Michael Jackson is going on the defense.  The judge allows him to respond to leaked documents in his case.  Good move for him to go public now?  We‘ll ask our panel of “Apprentice” castoffs coming up.

(COMMERCIAL BREAK)

(NEWS BREAK)

(BEGIN VIDEO CLIP)

DONALD TRUMP, “THE APPRENTICE”:  Bradford, you shouldn‘t be here.  You just shouldn‘t. 

(CROSSTALK)

TRUMP:  Bradford, you know, you just shouldn‘t be here. 

UNIDENTIFIED MALE:  I agree with you. 

TRUMP:  You were so good.  You did such a good job.  Why do you put yourself on the line like this?

UNIDENTIFIED FEMALE:  Because he knows he did a good job. 

TRUMP:  He‘s done a great job.  I mean you‘re so stupid to have done this. 

(END VIDEO CLIP)

ABRAMS:  That attorney and two of his former apprentice competitors are here with us now talking law—all of them lawyers.  We move to the Michael Jackson case. 

Jackson reportedly has responded to last week‘s ABC News report on the secret grand jury testimony in his case.  The report revealed damning details about the allegations against Jackson.  Information that at least according to the boy about masturbation lessons, pornography, prank phone calls.  The defense immediately released a statement calling the report one sided, but now according to ABC News, Jackson himself is fighting back. 

Quote—“Judge Rodney Melville has allowed Jackson to respond to the report and other leaks in the case.  Jackson has recorded an interview with Geraldo Rivera according to ABC.  And that interview will reportedly air before jury selections begins.  Interview with Geraldo. 

“My Take”—I think as long as the client doesn‘t have to talk details of the case, it is generally a good thing to get out there, but if I‘m representing Michael Jackson, any public statements he makes make me very, very nervous.  Jen, what do you make of this? 

MASSEY:  I agree with you.  I think there have been very few occasions in which Michael Jackson has gone out and spoken to the public and has said things that really resonate with the public.  I think he tends to go out and make some pretty outlandish statements that could possibly incriminate him even more.  So in this case I would have said let his attorneys speak for him, make some rebuttal comments.  I can understand the desire to rebut here, but don‘t put Michael Jackson out there saying things. 

ABRAMS:  You know, this attorney, Tom Mesereau, is representing Jackson, actually represented Robert Blake...

COHEN:  Yes.

ABRAMS:  ... and he quit because Robert Blake wanted to go talk on Barbara Walters...

COHEN:  Right.

ABRAMS:  So it seems that he‘s pretty confident here that Jackson is not going to talk facts of the case. 

COHEN:  You know, even if he doesn‘t talk the facts of the case, I don‘t like when a defendant speaks to anybody before a case begins.  I don‘t like him to talk after a case is over.  This putting Jackson in a position where he‘s going to discuss the case with Geraldo is probably I would say not a good idea.  I would let him speak through his attorneys, keep his mouth shut...

ABRAMS:  But Stacy, you know what the goal is here, right?  The goal is to sort of let the perspective jurors know this is Michael Jackson‘s side. 

ROTNER:  I would imagine that they chose Geraldo Rivera extremely strategically.  He‘s an attorney.  He can get...

ABRAMS:  He‘s also been very pro-Michael Jackson. 

(CROSSTALK)

ABRAMS:  There‘s no question. 

(CROSSTALK)

ABRAMS:  His reporting has been very, very pro-Michael—I mean Geraldo—I love Geraldo, but bottom line is there‘s no question that his reporting has been very, very pro-Jackson. 

COHEN:  A hundred percent. 

ROTNER:  I‘m sure it was a wise choice on their part if they wanted - if he‘s going - if he intends to speak, they chose someone very strategically.

ABRAMS:  Yes, but would you be concerned if someone says—if Michael Jackson is your client, you‘ve got to be shaking in your boots when he is going to sit down for that interview, right?

(CROSSTALK)

ABRAMS:  That you just hope he‘s not going to say something...

COHEN:  And he‘s going to...

ABRAMS:  I mean...

COHEN:  Michael Jackson can‘t help himself. 

ROTNER:  ... you go to his Web site.  I mean he has this whole Web site—it‘s all propaganda.  I mean of course he‘s going to speak.  He‘s like itching to speak.  The question is who‘s he going to speak to.  This was the best choice. 

ABRAMS:  Yes, but you would have said no. 

COHEN:  I would have said absolutely no.  I mean when he—even when he speaks and he means well, it doesn‘t come off well.  I love children and I love share my bed with them.  That doesn‘t come off well. 

ABRAMS:  That‘s not a good sign for whether he‘s going to testify, is it, Jen? 

MASSEY:  You know, I would say that he might really want to get up there and testify. 

ABRAMS:  He‘s going to have to testify. 

MASSEY:  But I think again I—Michael Jackson what he says does not resonate well with the American public.  He tends to say things that are a bit out of convention and that people have issues with.  So I also have to wonder here what Geraldo Rivera is thinking because as we saw with Martin Bashir in the 2003 documentary with Jackson, he‘s now being subpoenaed to have to come and serve as a witness at the trial...

ABRAMS:  But you got to do...

(CROSSTALK)

ABRAMS:  I mean look, I‘ll tell you right now...

(CROSSTALK)

ABRAMS:  ... if Michael Jackson said to me he‘ll talk to me in a heartbeat.  Michael the interview remains open, by the way. 

COHEN:  Take the shot...

ABRAMS:  I will absolutely do the interview and you know be perceived as a, you know, a fair, tough, interview.  So I welcome you to come on the program.  You can‘t blame Geraldo one bit for doing this interview.  I will be interested to see it.  I get the feeling it‘s going to be a lot of talking about how he feels about children in general and very little...

COHEN:  Which is sad...

ABRAMS:  ... about the case.

COHEN:  Not a good idea. 

(CROSSTALK)

ABRAMS:  Yes.  All right, we shall see.  All right, everyone is going to stick around. 

Coming up, we got a little bit more on the Jackson case because we‘re going to talk about these past allegations whether any of that should come in. 

And two trials starting this week for two big CEOs—the trials focus on what top execs knew about their company‘s finances.  So why will the defense in one of the cases be able to question a witness about his marital infidelity?  

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:  We‘re back with three lawyers who The Donald fired, but they‘re lawyers, so we‘re talking with them about all the big cases of the day and we‘re talking about the Michael Jackson case.  You know, one of the big issues here is going to be whether alleged incidents of abuse in Michael Jackson‘s past come in, in the trial.  Huge issue—the judge, I thought surprisingly, seemed to be reluctant to let this in. 

This is the law.  Prior bad acts.  If the defendant is accused of a sexual offense, the commission of another sexual offense can be admitted—can we put this up—unless it creates—all right.  You know what?  We don‘t have it. 

OK—there it is.  If the defendant is accused of a sexual offense, the commission of another sexual offense can be admitted unless it creates prejudice that outweighs its probative value concerning the defendant‘s disposition to commit the sexual offense with which he is charged.

Bottom line, Jen, you‘re a California lawyer.  I think a lot of this is going to come in, but the judge seems reluctant to let in it. 

MASSEY:  I agree.  I think a lot of it‘s going to come in.  Because it‘s—this evidence is going to show exactly what it is designed to show which is propensity, motive, and intent.  And I think you have maybe seven potential accusers lined up to testify and I think the judge is going to let them in...

ABRAMS:  Bradford, what the defense say here‘s is that it‘s not seven who are going to come in.  They say it‘s like one who‘s going to come in and a bunch of other people who are going to talk about the others.

COHEN:  That‘s really the problem.  If it was the actual accusers coming in saying him and I did this, did that, then that would be one thing.  But if you have people coming in that are saying I heard that he did this...

ABRAMS:  What about I saw?  What about I saw him drinking wine...

(CROSSTALK)

ABRAMS:  ... with a kid, for example. 

COHEN:  But that‘s the question.  Now is that relevant? 

(CROSSTALK)

COHEN:  Does prejudice outweigh it?  I don‘t know.  I don‘t think—I think the prejudice outweighs the probative value.  I don‘t know if just the fact that some little kid was drinking wine if that goes to prove that he‘s a molester. 

ABRAMS:  Yes, but one of the allegations here, though, is Stacy that he used wine as part of an effort to make the abuse happen. 

ROTNER:  Right.  I think that the evidence is extremely prejudicial, but for public policy reasons, I think it should be admitted because we would like to prevent these types of acts from ever happening again.  I mean children are extremely vulnerable and this type of a crime is unspeakable. 

ABRAMS:  Yes.

MASSEY:  And the judge will ultimately be there to determine is this evidence something that should stay in.  They‘ll weigh the evidence.  The attorney will argue it and at least it should be permitted in to see whether it should stand. 

ABRAMS:  Yes.  I mean look, they‘re going to have a hearing over this and...

COHEN:  Right, but that‘s the whole thing...

ABRAMS:  Yes.

COHEN:  They have to have hearings before you present this to the jury...

ABRAMS:  Why wouldn‘t the judge even consider this?   But a judge wouldn‘t address the issue until the trial started.  He‘s so concerned about the possible prejudice to the jury pool...

COHEN:  Yes...

ABRAMS:  ... that he wouldn‘t even let them argue over this until this trial starts?  

COHEN:  And the funny thing is they‘re doing this, you know, the judge was the one who ruled that they weren‘t going to do an in camera or behind the chambers hearing on this issue.  That they were going to do in it front of the camera.  So, yes, he‘s going to wait until right before the trial to determine whether or not what‘s coming in and what‘s not going to be let in.  So under that law in California, that 1108 law, a lot of this stuff does come in, but it‘s the...

ABRAMS:  The law was written in response to some of what happened in the Jackson case. 

COHEN:  Correct. 

ABRAMS:  So, all right.  Everyone is going to stay with me. 

Coming up, these guys were all competing to be big time exec, so what do they have to say about two CEOs on trial for stealing billions from shareholders?   At least, that‘s what they‘re accused of. 

And Richard Hatch—the guy survived the wilds of Australia.  How is he going to survive in prison if he‘s sent there for tax evasion?   He somehow left off his million-plus earnings after winning on the reality TV show “Survivor”.  Oh, Richard.

(COMMERCIAL BREAK) 

ABRAMS:  Coming up, they are lawyers who wanted to move into the business world with The Donald.  He fired them.  So what do the lawyers of “The Apprentice” make of two CEOs on trial this is week?  First the headlines. 

(NEWS BREAK)

(BEGIN VIDEO CLIP)

TRUMP:  And I think he did a lousy job and I think he made a terrible mistake, but Stacy, you‘re fired. 

(END VIDEO CLIP)

ABRAMS:  Another one bites the dust.  Former “Apprentice” wannabe Stacy Rotner fired by The Donald.  She and two of her competitors with legal backgrounds are here with me.  They should know a thing or two about corporate fraud.  Two high profile corporate fraud trials get underway this week.  Both cases combined account for nearly $12 billion allegedly lost, stolen, misappropriated. 

In one, former Tyco chief Dennis Kozlowski and his ex-financial chief Mark Schwartz head into the courtroom for a second time after a mistrial the first time around to face among other charges grand larceny, i.e., stealing $600 million from the company they once ran.  Kozlowski became a poster boy for corporate greed in the late ‘90‘s after spending 6,000 grand on a gold-threaded shower curtain—it‘s so funny because I have the exact same one—and almost 200,000 on a carpet for his lavish 5th Avenue Manhattan apartment.

The other case, former WorldCom chief Bernie Ebbers goes on trial for his role in a $11 billion accounting scandal leading to the biggest Chapter 11 bankruptcy filing in history, wiping out the value of all of WorldCom stock estimated at 180 billion at its peak in 1999.  Yesterday the judge in this case ruled that he will allow the defense, meaning Ebbers‘ defense team, to question the prosecution‘s star witness, the company‘s former CFO about his marital infidelity. 

“My Take”—what?  The witnesses—marital infidelity somehow relevant in a corporate fraud trial.  The judge rules that marital infidelity goes to the heart of this guy‘s—quote—“character for truthfulness”, and I guess he would allow the defense to ask about any lies he told including the one about Santa dropping off gifts, or the chicken parm he said he loved at his wife‘s friend‘s house, but that was actually a little rubbery. 

This is nuts.  Joining us tonight for the hour, three legal minds who competed for a top position with Donald Trump on last season‘s “Apprentice”, attorneys Jen Massey, Bradford Cohen and Stacy Rotner.

All right, Stacy, let‘s start with this ruling about the marital infidelity.  So the chief witness against Ebbers cheated on his wife.  That‘s relevant to a corporate fraud trial how? 

ROTNER:  It‘s definitely relevant because it does speak to someone‘s capability to be truthful in any given situation.  It speaks to the core of the individual and it should be admissible. 

ABRAMS:  So if—he lied to his kids about Santa, is that admissible?   

ROTNER:  Sure.  He‘s lying.

(LAUGHTER)

(CROSSTALK)

COHEN:  I think she‘s getting a little excited here...

(CROSSTALK)

ROTNER:  No, I really support that that they are letting this in.  I think that his truthfulness is being questioned all around and this is the capacity that they can question in the courtroom...

ABRAMS:  So you‘re called to be a witness in a trial and that means that everything about your life is fair game Brad? 

COHEN:  No, but the judge is saying that this goes to the veracity of truthfulness of this individual.  Now I don‘t know what the testimony is going to be.  Generally, this is not allowed in, but if it goes to the heart of the veracity of truthfulness of this individual and I don‘t know what the testimony is going to be...

ABRAMS:  Testimony is going to be about accounting.  The—this guy was the chief accountant effectively for the company.  He‘s going to talk about accounting fraud...

COHEN:  Right.  But I‘m talking about...

ABRAMS:  And the defense is going to cross-examine—we know you want to talk about accounting fraud, but sir, we‘d like to talk you about that little crash pad you had...

COHEN:  You know, I don‘t know what his testimony is going to be in regards to the truthfulness of his affair.  I don‘t know if there is something else that we don‘t know about in the testimony of the affair that goes to its veracity of truthfulness in regards to accounting issues.  I don‘t see how it could...

ABRAMS:  He lied about his affair. 

COHEN:  But maybe...

ABRAMS:  I‘m sure they‘ve got evidence of it.  I‘m sure they‘ve got e-mails or phone calls or something that he lied about his fidelity. 

COHEN:  OK, but how about this?  Maybe some of the corporate funds were spent on this affair.  I don‘t know if it was or if it was not.  And if corporate funds were spent on this affair, wouldn‘t that be relevant to the case? 

ABRAMS:  Maybe, but I don‘t think just the issue of marital infidelity. 

COHEN:  In itself no, but if there‘s more to it.

(CROSSTALK)

MASSEY:  Well I think at the heart of a lot of these white-collar criminal cases is the person‘s integrity.  If they are willing to compromise their integrity and their personal life...

ABRAMS:  But he‘s not on trial...

MASSEY:  are they willing...

ABRAMS:  This guy‘s not on trial...

MASSEY:  ... to lie to their shareholders? 

(CROSSTALK)

ABRAMS:  He‘s the witness.  He‘s a witness.

(CROSSTALK)

MASSEY:  But at the end of the day is he credible and does he have the integrity to get up there and speak truthfully? 

COHEN:  Listen, if it‘s just about his affair, obviously that‘s ridiculous to let it in...

(CROSSTALK)

COHEN:  But now if it‘s about the affair and money spent on the affair and moneys from his company that were spent on the affair and the truthfulness of that...

ABRAMS:  My understanding is...

COHEN:  ... then that‘s something else. 

ABRAMS:  ... that it‘s basically about his truthfulness.  It‘s about impeaching the witness because he‘s a liar in the past and they say this could show that he‘s lying here. 

MASSEY:  Well he‘s trying to get off earlier.  He is trying to get less time.  His sentence is going to be reduced by two-thirds. So he has incentives and motivations...

ABRAMS:  Fine, bring that in.  Let them bring in the fact...

(CROSSTALK)

ABRAMS:  Right.  Let them bring in the fact that he‘s going to get a lesser sentence.  But you know, dragging in all of his past marital woes.  Stacy, I can‘t believe you.  You really think...

(CROSSTALK)

ABRAMS:  I think you‘re just...

(CROSSTALK)

ABRAMS:  ... you‘re just mad at him. 

ROTNER:  No, I really believe that it‘s important for the jury to have a witness who is actually credible who they can rely on.  I mean isn‘t that what the justice system is all about?  Being able to have these witnesses who they can actually...

ABRAMS:  So any time someone‘s going to testify in a trial, anything that they ever lied about should be able to come in? 

COHEN:  That‘s the problem.

ROTNER:  No, but the point is, is that they need to be able to impeach him if he‘s not credible and...

(CROSSTALK)

COHEN:  But they‘re not talking about impeachment here.  They are talking about actually using and cross-examining him on an affair.  They‘re not talking about...

ROTNER:  ... impeachment value. 

COHEN:  ... using it for impeachment. 

(CROSSTALK)

COHEN:  They‘re not saying...

(CROSSTALK)

COHEN:  ... impeachment value.  They‘re not saying that...

(CROSSTALK)

COHEN:  ... it‘s solely for impeachment. 

(CROSSTALK)

ABRAMS:  But I think—let‘s assume it is...

COHEN:  Solely for impeachment...

ABRAMS:  Yes, let‘s assume it‘s just for impeachment of the witness. 

UNIDENTIFIED FEMALE:  Of course it should come in. 

COHEN:  I just don‘t see how the affair is relevant to the veracity of his truthfulness...

ABRAMS:  I‘ve never heard...

COHEN:  ... for the defense this is a huge win...

ABRAMS:  I‘ve never heard anything like this...

MASSEY:  I think the defense is really—I mean they are reaching in a sense here because they know that if they can attack Sullivan‘s credibility, he is their one direct link to Ebbers. 

ABRAMS:  Yes.

MASSEY:  So I think...

ABRAMS:  So the jurors will hate him.

COHEN:  Of course...

MASSEY:  ... it‘s a smart move on their part...

COHEN:  ... and that‘s what they want.

MASSEY:  ... and this is a big win for the defense. 

COHEN:  I mean Ebbers‘ defense is essentially I‘m not bright enough to pull this off. 

ABRAMS:  Stacy, what do you make of the retrial of Kozlowski?  First time a mistrial declared.  It seemed they were almost 11-1 probably to convict.  This time around, is it an advantage to the prosecutors or the defense that they get a second shot? 

ROTNER:  I think it‘s a huge advantage to the prosecution that they have a second chance, but...

ABRAMS:  Streamline the case. 

ROTNER:  Yes, streamline the case.  They know what‘s admissible.  They know what‘s relevant.  They know what‘s important.  I think that the downfall is that there‘s been so much publicity that it‘s going to be really hard for the defense to fight that. 

ABRAMS:  Yes, but there was 11-1. 

MASSEY:  Well I think that the prosecution this is a good thing for them because they‘re going to come in and be very focused on the relevant issues here which is did a theft take place?  Were these alleged thefts, these forgiveness of loans, borrowing from the company, did that take place as opposed to the spending which they really focused on in the first trial, what was spent on a shower curtain.  What was spent on his Park Avenue apartment? 

(CROSSTALK)

MASSEY:  And the jurors...

ABRAMS:  Brad, jurors after the fact said we weren‘t impressed with the prosecution...

COHEN:  Right.

ABRAMS:  ... and the videotape and all the spending he did, but I never believe jurors after...

COHEN:  I don‘t either.

ABRAMS:  ... the trial because I think that they have to say, oh, no, that was an extraneous issue... 

COHEN:  I think the video makes it more sexy.  It gives the jury appeal.  I think if they streamline—if they overly streamline it they‘ll put juries to sleep.  These white-collar crime cases are so boring it‘s unbelievable.  You sit there...

ABRAMS:  ... you talk about...

COHEN:  ... review numbers...

ABRAMS:  ... funds and what was company funds...

(CROSSTALK)

ABRAMS:  ... what was personal...

(CROSSTALK)

MASSEY:  But at the end of the day here, you‘re left with, big deal the CEO bought an expensive shower curtain.  You can‘t convict someone on that.

COHEN:  But it keeps them awake...

MASSEY:  ... so what they need to know is...

COHEN:  ... and it keeps them relevant...

MASSEY:  ... was there a theft here?  Were these shower curtains being financed by looting from the company...

COHEN:  Oh absolutely, they‘re going to have to show that.  But the things is, is that keeps them awake and then you can bring in all the other stuff.  I wouldn‘t overly streamline it. 

ROTNER:  And the other reason why it‘s...

ABRAMS:  Quickly, yes...

ROTNER:  ... important is that Kozlowski is blaming it on his decorator that he didn‘t know.

(CROSSTALK)

ROTNER:  I mean come on. 

(CROSSTALK)

ABRAMS:  Everyone is going to stick around.  Coming up, we‘ve got Richard Hatch—remember him “Survivor” guy—running around naked as much as possible.  Well apparently he might—because of that, I think he might want to avoid time behind bars because the guy didn‘t pay taxes on $1 million that he won on “Survivor”. 

And one of the poster boys for the Catholic Church‘s cover-up of sexual abuse in the priesthood finally on trial, but after huge settlements from the civil trial and several witnesses opting out of the case, this man may very well go free.  It‘s my “Closing Argument”. 

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)

(NEWS BREAK) 

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Jennifer knows how to be a lawyer and that‘s pretty much it. 

(CROSSTALK)

UNIDENTIFIED FEMALE:  Being an entrepreneur and having a business, you can‘t learn that in textbook.  You have to go out there and sweat it out and experience it. 

UNIDENTIFIED FEMALE:  How would you know, Sandy? 

(END VIDEO CLIP)

ABRAMS:  (UNINTELLIGIBLE) the outwitted, outplayed, outlasted the competition on the first season of “Survivor.”  Let me just—hang on.  That was Jen Massey.  It‘s one of my guest.  She was one of “The Apprentice” guests. 

All right.  Now, we‘re talking about another reality show, Richard Hatch.  Unbelievable, the guy has been charged with failing to report the $1 million check CBS cut him after he won “Survivor” in 2000 and failing to report another 321,000 paid to him by a Boston radio station for a show he co-hosted.  Hatch facing fines up to 250,000, up to five years in prison on each charge.

He reportedly has agreed to plead guilty in exchange for prosecutors recommending a lighter sentence.  He is due in court on Monday.  Do I even need a take on this one?  Back with us is the lawyers who were on “The Apprentice.” Jen, what do you make of this? 

MASSEY:  Well, given the amount of prize money I won, I think I could have a viable argument for having forgotten, but...

ABRAMS:  Really?

MASSEY:  ... in Richard‘s case, winning $1 million that‘s a hard one to argue with the IRS about.  I think maybe he ate too many bugs on “Survivor” and he‘s...

ABRAMS:  Yes.

MASSEY:  ... had some temporary insanity. 

ABRAMS:  Did you pay your taxes on...

COHEN:  Yes, I think this guy is a moron...

(CROSSTALK)

COHEN:  I got to be honest with you.  I mean what is this guy thinking?  I mean the only big gigantic naked guy wins $1 million...

(CROSSTALK)

COHEN:  ... on “Survivor” doesn‘t report it...

ABRAMS:  Right.

COHEN:  ... he‘s going to fly under the radar because that wasn‘t happening.  So, it‘s—I couldn‘t believe that he did it. 

ABRAMS:  You paid your taxes, right? 

ROTNER:  I pay my taxes.  I mean just because he‘s used to some form of immunity on the island doesn‘t mean he‘s immune from U.S. laws...

(CROSSTALK)

COHEN:  ... little slap on the wrist.  He‘ll pay his money...

ABRAMS:  Yes, he won‘t go...

COHEN:  ... and be naked...

ABRAMS:  ... he won‘t go to prison. 

COHEN:  No, he‘s not going to go—he might like prison.  Who knows?

(CROSSTALK)

ROTNER:  ... clothes back on and pay taxes.

MASSEY:  I think I‘m seeing a new reality TV show here...

ABRAMS:  Yes, exactly...

(CROSSTALK)

ABRAMS:  Richard behind...

(CROSSTALK)

COHEN:  It could be huge...

ABRAMS:  All right, let me ask...

(CROSSTALK)

ABRAMS:  Let me ask you each quickly, this next season coming up, what do you make of this Book Smart Team versus the Street Smart Team? 

COHEN:  You know, Jen and I were discussing this earlier.  It‘s funny because I consider myself a little bit of both.  So it‘s very difficult to say OK, yes this is going to be great, book smart versus street smart.  It seems an interesting concept, but...

ABRAMS:  Which side—which one do you think Trump is going to like...

COHEN:  Book smart.  Come on.  The guy...

(CROSSTALK)

COHEN:  ... loves a pedigree. 

(CROSSTALK)

UNIDENTIFIED FEMALE:  ... street smart...

COHEN:  No, he loves a pedigree...

UNIDENTIFIED FEMALE:  Yes...

COHEN:  He loves a pedigree.

UNIDENTIFIED FEMALE:  Yes, I think Trump loves a hustler and I think that‘s what he said over and over again.  Bill wrote about that in his book.  You know, he‘s someone out hustling cigars and I think that‘s what Trump likes. 

COHEN:  A hustler with a pedigree. 

(CROSSTALK)

(LAUGHTER)

COHEN:  That‘s what he likes. 

(CROSSTALK)

ROTNER:  Over and over he impressed on the degrees and where we went to school.  I mean I think that‘s really important to him. 

MASSEY:  But at the end of the day I think he‘ll pick a street-smart person...

ABRAMS:  Where did he go to school...

COHEN:  He went to Wharton Business School.  Very fine business school

·         not as good as (UNINTELLIGIBLE) College where I went. 

ABRAMS:  Yes.

(CROSSTALK)

ABRAMS:  I‘ve heard that “U.S. News” is always having those two battles for number one. 

COHEN:  It‘s huge.  It‘s huge...

(CROSSTALK)

MASSEY:  Look at what he‘s doing within his own company.  He promotes from within and several of his top people in his company have come from, you know, being a security guard or I think Caroline (ph) started out as a waitress...

ABRAMS:  Yes.

MASSEY:  ... and so he likes to promote people that just go out there and work hard.

COHEN:  Caroline (ph) didn‘t start out as a waitress.

MASSEY:  Read her book, Brad. 

ABRAMS:  Yes...

(LAUGHTER)

ABRAMS:  I don‘t know.  Anyway, it was a lot of fun having you guys. 

I really appreciate all of you coming in.  This was fun...

UNIDENTIFIED FEMALE:  Thank you.

ABRAMS:  ... you know, different kind of format getting to talk about the law.  Jen Massey, Bradford Cohen, Stacy Rotner, thanks a lot.

Coming up—also remember season three of “The Apprentice” book smarts versus street smarts premiers tomorrow night on NBC at 8:30 Eastern, 7:30 Central time. 

Coming up, more than a dozen witnesses won a major settlement after they testified that Catholic Priest Paul Shanley abused them.  So why do prosecutors only have one witness to go with in the criminal trial and I say that‘s why Shanley will very likely go free.  It‘s my “Closing Argument” up next.

(COMMERCIAL BREAK)

ABRAMS:  A Catholic priest who became the poster child for church sex abuse is finally standing trial for rape.  I say don‘t expect justice to be served.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—remember Paul Shanley, the defrocked priest?  One of the poster boys for the Catholic Church‘s cover up of sexual abuse in the priesthood.  After hundred of millions of dollars in payouts from the church, Shanley is one of the few to see the inside of a courtroom.  Today he‘s standing trial for the rape of one young altar boy in the 1970‘s, but don‘t expect to see justice served. 

And it‘s not because of the evidence against Shanley isn‘t overwhelming.  More than a dozen boys accused Shanley of taking them out of religious education class and raping them in the church confessional, the rectory or the restroom.  He even publicly voiced support for sex between men and boys.  Internal church documents show that Shanley‘s superiors moved him from parish to parish in Massachusetts as a result of the allegations. 

But by the time the priest abuse scandal broke and the church was forced to open its books, the statute of limitations had passed for charging him in connection with most of those cases.  Nevertheless, prosecutors of Massachusetts have scraped together a case with four more recent alleged victims.  But as of this week, four witnesses down to just one.  Two had inconsistencies in their stories, prosecutors dropped the third after Shanley‘s lawyers subjected him to such intense questioning that he left the courtroom vomiting and then disappeared. 

The only accuser left now a man in his 20‘s who says he didn‘t remember that Shanley molested him as a child until he saw reports of the church sex abuse case in the media.  The defense team will portray the lone accuser as a witness with a creative memory who wanted a piece of the payout.  Of course, the reality is that the church settled for big bucks with all of Shanley‘s alleged victims. 

But the defense in the criminal case, very well could work.  Meaning, legal technicalities, civil lawsuits and traumatized witnesses could mean that Paul Shanley walks out of the courtroom a free man. 

Yikes! Coming up in 60 seconds, a good case means nothing without the

right jury.  So, what do you do when you‘re faced with a jury pool—quote

·         “from hell?”  Our “OH PLEAs!” segment is next. 

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say, now it‘s time for “Your Rebuttal”.  On Monday we told you the FDA has until the end of the week to decide whether to make the morning after pill available without a prescription.  It can prevent a woman from getting pregnant up to 72 hours after she has sex.  Effectively a highly concentrated birth control pill.  I said I see no reason why this pill should be offered over-the-counter if the regular birth control pill is available only by prescription. 

Drew Joslin in Norfolk, Virginia.  “While a woman should obviously employ other methods of contraception before the fact, a woman should not have to plan her sex life around her doctor‘s office hours in case of an emergency.”

From Georgetown, Texas Jane Thompson.  “The normal pill is taken daily and fundamentally changes the way a woman‘s body works.  It can have dangerous side effects, which I would not think would be true if only one dose were taken.”

But that‘s the point Jane.  If it is offered over-the-counter, it may be taken a lot more than once, making it more dangerous, I would say, than the pill. 

Jen Smith in Suffolk, Virginia.  “You‘re advocating the position of planning an emergency, which is an oxymoron.”

Well Jen, I‘d assume then that you don‘t have a homeland security kit in your house just in case or a fire extinguisher just in case.

Lynnette Walker in Pittsburgh suggests, “If the FDA says no to acquiring this pill without a prescription, then all condoms should be prescribed by a physician.  What‘s good for the gander is good for the goose.”

Except that there‘s no evidence that condoms can have the negative medical effects that these pills can have. 

From San Antonio, Texas Judy Willingham takes me on from the other side because I said I have no problems with doctors prescribing the pill for women to have in their medicine cabinets just in case.  “Can‘t you see young teenage girls taking this pill like candy every time they have sex?  It‘s obvious you don‘t have a daughter.”

Interesting Judy.  Many on the other side might be surprised you take the position you do if you have a daughter. 

Also on Monday, 3-year-old Evan Scott taken from his would be adoptive parents who he lived with his entire life to live with his birth mother after she sued to reclaim Evan when she found out his biological father might get custody.  I said the biological father didn‘t even know about the child because he had beaten the mother so badly, she wanted to hide the pregnancy from him.  He decided to object to the adoption only after his father insisted he do so. 

Plenty of e-mails about little Evan.  From Wichita, Kansas attorney Carroll Hoke.  “As a fellow lawyer, you know that no matter how bad the father was his objection before the adoption was final should have been a huge red flag to the adoptive parents.  This makes the adoptive parents culpable as well of the pain they are suffering.”

Red flag, yes, and the Scotts are partially responsible for the pain here, but that‘s not the end of the issue. 

From Surf City, North Carolina Tom Noe.  “The adoptive parents are a big problem here.  They keep—kept fighting for the boy by appealing and appealing.  They are the cause not the solution here.  The boy would have had a home years ago without all their tears.”

Well maybe, Tom, except remember, mom didn‘t decide she even wanted the child until late last year.  He‘s 3 years old.  On the other side, I said the home video that the foster parents took bothered me.

Marilyn Barrio in Hillsborough, California.  “I‘m amazed you can‘t understand why the adoptive parents made the video.  It was to show the pain, anguish and damage done to the little boy.”  

“OH PLEAs!”—we‘ve long known that going to jury duty—there we go

·         can sometimes become a bizarre experience.  But not like this.  In one Tennessee case, the defense attorney called it a—quote—“jury pool from hell.”  Why?  Well let us count the ways. 

Just as jury selection began, one man walked out and announced—quote—“I‘m on morphine.  I‘m higher than a kite.”  When the prosecutor asked if anyone had a criminal record, one of the prospective jurors said he was arrested and taken to a mental hospital after he almost shot his nephew because he wouldn‘t come out from under the bed.  Another would-be juror admitted to having alcohol problems and was arrested for soliciting sex from an undercover officer, saying he should have known she wasn‘t a real prostitute because she had all her real teeth. 

They were just trying to get out of having to serve on the jury. 

You‘ve got to give them credit for trying to one up the guy next door. 

That does it for tonight.  Coming up next, “HARDBALL” with Chris Matthews.  Thanks for watching.  See you tomorrow.     

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

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