updated 3/2/2005 11:58:12 AM ET 2005-03-02T16:58:12

Guest: Stacy Brown, Susan Filan, Geoffrey Fieger, Mark Potok, William Hubbarth

DAN ABRAMS, HOST:  Coming up live from the Michael Jackson case in Santa Maria California, Jackson‘s attorneys tell jurors they‘ll hear from Michael Jackson.  Is he really going to testify? 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Tom Mesereau tells jurors Jackson will tell them he had a bad feeling about the accuser and his mom and that Jackson wasn‘t serving the boy liquor but that the boy broke into Jackson‘s wine cellar and got drunk and that Jackson had to lock his girly magazines in his brief case to keep the boy away.

Plus, Kobe Bryant reportedly settles with the woman accusing him of rape?  How much might she get? 

And a white supremacist once plotted to kill this judge, now her husband and mother are found dead in her home. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, Michael Jackson‘s attorney sure made it sound like the jury will hear from Jackson himself.  Tom Mesereau telling jurors today in his opening statement Mr.  Jackson will tell you he found those kids going through his magazines and grabbed them from him and locked them in his briefcase.  And Michael Jackson will tell you one time at Neverland he got a very, very bad feeling, an intuition.  They were in the theater.  The accuser‘s mother grabs Michael‘s hand and has her children all hold hands and she says let‘s all kneel down and pray with our daddy, Michael. 

The defense finished its opening statement.  Then the state‘s first witness took the stand.  Martin Bashir, the man responsible for the documentary “Living With Michael Jackson”.  Prosecutors say that video—quote—“rocked Michael Jackson‘s world, turns his life into a train wreck.”  The jury saw the entire video including the infamous scene where Jackson talks of sharing his bed with boys while his accuser sits right next to him.

(BEGIN VIDEO CLIP)

MICHAEL JACKSON, ACCUSED OF CHILD MOLESTATION:  The most loving thing to do is to share your bed with someone, you know... 

UNIDENTIFIED MALE:  You really think that? 

JACKSON:  Yes, of course. 

UNIDENTIFIED MALE:  You‘re taking the position that you use...

JACKSON:  Yes.

UNIDENTIFIED MALE:  ... every school night that you go into, you sleep and you (UNINTELLIGIBLE) another...

JACKSON:  I say you can have my bed if you want.  Sleep in it.  I‘ll sleep on the floor.  You can—it‘s yours.  I always give the best to the company, you know, like to him I said if he was going to sleep on the floor, I said no.  You sleep in the bed.  I‘ll sleep on the floor. 

(END VIDEO CLIP)

ABRAMS:  Oh, boy.  All right “My Take”—in my “Closing Argument” I‘ll tell you why I think the prosecution is in trouble, but first some observations from inside the courtroom.  As the Bashir documentary is being played, it was almost surreal.  There I am sitting in between Jackson‘s mom and his brother, Jackie Jackson, Michael Jackson sitting only a few feet away and we‘re all watching a movie, a movie about Michael Jackson and his family, starring Michael Jackson. 

He talks about everything from his most personal memories of being beaten as a child by his dad to his love for climbing trees and his explanation for why he sleeps in the same bed with children.  But throughout there is music, “Thriller”, “Billie Jean” and other Jackson hits.  It was, well, entertaining, a stark contrast from the usual drear we see in courtrooms.

Jurors were riveted, at times laughing, Jackson bopping—going like this—to the beat of his songs, at another point he appeared to get emotional.  His mom was sitting right in front of me and she starting asking why are they even playing this.

Joining me now Jackson family friend and MSNBC analyst Stacy Brown.  Stacy, you say it is no surprise to this family that Michael Jackson is—now appears to be ready to take the stand? 

STACY BROWN, JACKSON FAMILY FRIEND:  No.  No surprise at all, Dan.  In fact, as—well, as we all know, he‘s got two things riding on this, his life and his career, and they‘ve talked about this constantly that he feels 100 percent innocent and they feel—the family feels anyway that a guilty person hides and Michael won‘t hide. 

ABRAMS:  Right, but apart from what the family thinks about the legal strategy, the bottom line is you were saying earlier today that when you heard that Mesereau had said this you said yes, no big surprise...

BROWN:  Right.

ABRAMS:  ... the family has believed he was going to testify. 

BROWN:  That‘s correct.  That‘s absolutely correct.  It was no big

surprise to me and certainly not a big surprise to his family.  And they‘re

·         many times they have their conference calls—their family conference calls and they speak about these things.  They are kept abreast.  They have been kept abreast of the defense strategy all along and they all agree that he should because they feel he has nothing to hide. 

ABRAMS:  Yes, yes, but families always say that.  Families always say oh yes, you know, my son or my whatever would have loved to take the witness stand but here it sounds like he really may do it. 

Criminal defense attorney Geoffrey Fieger joins me as well as  -- all right he‘s not ready—Susan Filan, Connecticut prosecutor is with me.  Susan, you think it‘s a risky strategy for the defense?

SUSAN FILAN, CONNECTICUT PROSECUTOR:  Yes, I do.  I would love to cross-examine Michael Jackson.  I think he puts himself in harm‘s way if he takes that witness stand.  He opens himself up to cross-examination by District Attorney Sneddon and we‘ve seen...

ABRAMS:  About what?  About what?

FILAN:  Who is that...

ABRAMS:  What‘s so horrible that he‘s going to be cross-examined about? 

FILAN:  Well, first of all when he goes on the documentary, he explodes upon the world saying I love to sleep with little boys in my bed and that lands him in a whole heap of trouble.  What else is he going to say?  He‘s going to be cross-examined about giving them alcohol, about showing them pornography, about the claims that he—there was mutual masturbation, about the walking around...

ABRAMS:  Right, he‘s going to deny all of that.  He‘ll deny giving them the alcohol.  He‘ll deny giving them pornography and he‘ll deny ever molesting him. 

FILAN:  But look at his demeanor on the documentary.  Does he look like somebody who‘s going to be able to withstand a withering cross-examination from the district attorney?  He‘s just not that savvy.  He lives in his own fantasy world in his head and I don‘t think the jury...

(CROSSTALK)

FILAN:  ... is going to be able to understand what the world looks like from inside his brain. 

ABRAMS:  All right, let me lay out—let‘s put up number one here.  This is what I think the—this is one—the defense laid out a timeline today, and I think this is going to be a big problem.  I‘ll talk about this later in the program, but February 6 the Bashir documentary airs in the U.S. and the D.A. launches an investigation. 

Then the accuser‘s mother tells Frank Casio or Frank Tyson, one of the unindicted co-conspirators, Michael is family to me.  That‘s caught on an audiotape where she didn‘t know that she was being tape-recorded. 

February 16, the mother tells defense investigator Brad Miller that Jackson is unselfish, kind and exhibits unconditional love and denies anything inappropriate ever happened with Jackson.  And right here we‘re talking about the period where she‘s supposedly being imprisoned effectively. 

February 20, in the rebuttal video, which the prosecutors say was the whole reason she was being imprisoned, so that she would help make this video.  The mother says we are spat on because of our race, our poverty.  Nobody will help us and daddy Michael rescued us, took us into his fold, became the surrogate father. 

February 21, the family denied any wrongdoing by Jackson to the Department of Child and Family Services. 

Susan, this is a troubling timeline because the prosecutors say that the abuse—the idea is that all of this abuse is happening right after Michael Jackson and his team are going to such great lengths to get this family to say that there was nothing happening because this was such a P.R.  disaster for Jackson. 

FILAN:  But I—isn‘t there also going to be testimony that the boy was threatened and that he thought that perhaps his mother was going to be killed and that the unindicted co-conspirators were handling them in such an intimidating fashion that they felt that they had no choice and they were making these statements, basically self-serving statements for Michael Jackson not because that‘s what they felt but because they were in fear, and the timeline I think is absolutely fascinating.  I think it is the crux of the case.  But couldn‘t the argument also be made that once the Bashir documentary airs and now they are being held hostage, and DCF is looking into it, what better time now than to actually begin to molest this boy because...

ABRAMS:  Oh come on...

FILAN:  ... who would believe that he would do it at that time when he‘s under the spotlight. 

ABRAMS:  Yes.  I mean come on—I mean but the idea is that there they are doing everything they can to clear Michael Jackson‘s name, including Jackson.  Jackson is supposedly spearheading this effort... 

All right, Geoffrey Fieger fighter joins us on the phone.  Geoffrey, you buy the idea that Michael Jackson is going to take the stand? 

GEOFFREY FIEGER, CRIMINAL DEFENSE ATTORNEY (via phone):  Yes, but I—again, I would not, if I was Mesereau, have disclosed that.  I‘d want to leave my options open, and he‘s kind of bound himself.  He—in fact he stated to the jury, he said you can hold me to my promises.  He promised three times he‘s going to produce him and the facts—the trial may end up where it‘s not a good idea to put Michael Jackson on. 

I frankly believe it will be a good idea because the only way Michael Jackson can diffuse his strange looks and strange behavior is to take the stand.  If he comes across angelic, if he can draw—remember, he‘s a good entertainer.  If he can draw that jury in, that‘s halfway there and right, he is subjective to cross-examination...

ABRAMS:  Doesn‘t—Geoffrey doesn‘t...

FIEGER:  ... there may be things that are hard to explain, but I might put him...

ABRAMS:  Geoffrey, doesn‘t it depend on whether the information about 1993 comes in?  I mean for example, if that information—if the judge rules, and it doesn‘t look like he‘s going to rule this way—but if he does rule that the 1993 allegation does not come in, this other information, allegations against Michael Jackson, doesn‘t he want to stay off the witness stand then? 

FIEGER:  Yes and that‘s the big problem.  Mesereau should have never made that commitment because you‘re absolutely right.  He could—may be able to fend off one allegation.  He may be able to shift the focus to the mother of this accuser, but another allegation is a state of comp lea (ph).  He will be convicted if another child gets on the stand and says he did it to me too.  You mark my words.

ABRAMS:  All right.  Stacy Brown, thanks.  Geoffrey Fieger, Susan Filan, stick around.  Still ahead on the Jackson trial, why sitting in court makes me think Jackson is going to walk.  It‘s my “Closing Argument”.  I‘ll tell you all about it later in the show.

And Kobe Bryant‘s reportedly paying up and settling his lawsuit with a woman who says he raped her.  How much might she have gotten?

Plus, a Supreme Court ruling allows 72 convicted murders to get off of death row because they were under 18 when they killed.  A big ruling we‘ll debate.

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, she accused Kobe Bryant of rape, now she‘s reportedly ready to settle a civil lawsuit against him.  Coming up.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  Kobe Bryant looked especially on last night during a game against the Knicks.  Might be because ABC News reporting the all-star has agreed in principal to settle his civil case.  Bryant was supposed to answer questions for the first time under oath at a deposition last Friday.  When it was postponed—we talked about it here on the program—does that mean there‘s a settlement in the works? 

Settlement could be pricey for a guy who was the nation‘s 10th highest paid athlete last year.  He earned 26.1 million last season, half of which came from endorsements, the rest from his salary, bonuses, prize money, appearance fees.  So how much would Kobe have to dish out to make this case go away? 

Joining us again, criminal defense attorney, also a big civil attorney, Geoffrey Fieger, and Susan Filan, Connecticut state prosecutor.  All right, so Geoffrey, look, there are some caps in Colorado here with regard to compensatory damages and punitive damages is my understanding that if it had gone to trial probably wouldn‘t have been able to get a whole lot more than 1.5 million, but I got to believe to make this case go away Bryant would have had to probably pay more than that. 

FIEGER:  He did.  He not only made this case away, he made the criminal case goes away.  And I don‘t care what anyone says, this deal was made prior to the completion of the criminal case. 

(CROSSTALK)

FIEGER:  And I don‘t care what you say...

ABRAMS:  Come on Geoffrey...

FIEGER:  ... Danny, the deal was...

(CROSSTALK)

FIEGER:  Let me just tell you...

ABRAMS:  Yes...

(CROSSTALK)

ABRAMS:  ... you were wrong about it.

FIEGER:  Oh yes...

ABRAMS:  You and I talked about it.  You just won‘t admit that you were wrong...

FIEGER:  No...

ABRAMS:  ... and I was right...

FIEGER:  Not only was I...

ABRAMS:  ... that they hadn‘t settled the case back then and they just settled it now.  So you think this has been all a big sham up until now...

FIEGER:  Yes.

ABRAMS:  ... and they‘ve known exactly how much they were going to settle for and part of the deal was we‘re not allowed to announce it until the day after the deposition is scheduled.

FIEGER:  Yes, because you explain to me why she would refuse to take the stand in the criminal case or assist in the prosecution of the criminal case, but she nevertheless would assist in the prosecution of the civil case and would take the stand...

ABRAMS:  Because maybe she didn‘t trust the prosecutors in the criminal case. 

(CROSSTALK)

FIEGER:  I promise you Danny, the settlement was made, a deal was made...

ABRAMS:  No way. 

FIEGER:  ... and he—it‘s unethical, but it was done.  I promise you...

FILAN:  Oh come on...

FIEGER:  ... it was done.

FILAN:  Why do you think she didn‘t want...

ABRAMS:  Susan...

FILAN:  ... to participate in the criminal trial—because the media leaked her name, because the court leaked her name, because they leaked documents.  She was re-victimized during that prosecution...

FIEGER:  So, then she would have been...

FILAN:  ... and she even made a motion...

FIEGER:  ... re-victimized during the civil prosecution...

FILAN:  ... to have her name...

ABRAMS:  Wait.  Wait...

FILAN:  ... off the documents...

ABRAMS:  But Susan, on the other hand...

FILAN:  ... in the civil law suit.

ABRAMS:  ... she also knew she—wait—she also knew that there was no way those prosecutors were going to get a conviction.  I‘m sure her attorneys told her that if they were smart...

FIEGER:  I don‘t agree.

ABRAMS:  ... because there was no way...

FIEGER:  That‘s wrong.

ABRAMS:  ... there was no way those prosecutors were getting a conviction in the criminal case.

FIEGER:  That‘s wrong.

FILAN:  Let me tell you what she did get... 

FIEGER:  There‘s a lot more evidence in that case than there is in the Michael Jackson case. 

ABRAMS:  Well...

(CROSSTALK)

ABRAMS:  ... I‘m happy to compare those two because as you‘ll see at the end of the show, I don‘t think there‘s going to be a conviction in this case either. 

FIEGER:  Fine, but there‘s a lot more...

ABRAMS:  Go ahead Susan.

FIEGER:  ... in the Kobe Bryant case than there...

FILAN:  Dan...

FIEGER:  ... is in Michael Jackson.

FILAN:  Dan, I just—let me tell you what she did get because it‘s a beautiful, beautiful thing for a woman who believes she‘s been raped.  She basically got an apology and she basically got money.  Kobe Bryant actually said after months of listening to her lawyer and to her I now see from her point of view how she feels.  That‘s incredible. 

ABRAMS:  Yes.

FILAN:  That‘s worth an awful lot.  I‘m very happy for her. 

FIEGER:  Surprise, surprise...

ABRAMS:  All right, well we shall...

FIEGER:  ... she settles the civil...

ABRAMS:  Susan, give me a number...

FIEGER:  Was that a surprise to you, Danny?

ABRAMS:  I got—wait, I got to wrap this.  Susan, what‘s the number...

FILAN:  Five million. 

ABRAMS:  ... you think she‘ll get?

ABRAMS:  Five?

FILAN:  Yes. 

ABRAMS:  Geoffrey, what do you think the number would be...

FIEGER:  I agree.  It‘s about five million.  He got off cheap. 

FILAN:  You agree with me? 

FIEGER:  Yes.

ABRAMS:  All right.  Susan thanks a lot.  Good to see you.  Geoffrey is going to stick around. 

Up next, white supremacist Matthew Hale once plotted to kill this judge.  Now her husband and mother are found dead in her house.  Hale‘s in prison, but does he have enough power in the white supremacist movement to have possibly been behind this killing?

And prosecutors want to force the woman accused of kidnapping Elizabeth Smart to take anti-psychotic drugs so she can be competent to stand trial.  Can they do that?

(COMMERCIAL BREAK)  

(BEGIN VIDEO CLIP)

JAMES MALLOY, CHICAGO POLICE DEPT.:  Last night detectives were called to a home in the 40 -- 5200 block of North Lakewood Avenue to respond to a possible homicide in the home of Federal Judge Joan Lefkow.  Judge Lefkow arrived home last night shortly after 5:30 p.m. to find her mother and her husband slain in the basement.  Both were pronounced dead on the scene. 

(END VIDEO CLIP)

ABRAMS:  A double murder in a Chicago suburb last night.  The killer is still on the loose.  Autopsies confirm the husband and mother of U.S.  District Judge Joan Humphrey Lefkow, Donna Humphrey and Michael Lefkow both died of multiple gunshot wounds.  While police haven‘t yet identified any possible suspects, they are certainly looking at one possible lead, white supremacist Matthew Hale. 

Hale was arrested in 2003, charged with soliciting Judge Lefkow‘s murder a month after she held him in contempt in court in a trademark infringement case.  Hale was convicted of the charge last April, is due to be sentenced next month but according to sources just within the last two weeks federal agents in Chicago received a bulletin the white supremacist Arian Brotherhood might be targeting—quote—“law enforcement and their families.”

“My Take”—the authorities say we can‘t draw any conclusions on this, fine.  Considering what Matthew Hale went to prison for would be pretty difficult not to look at him first as a possible suspect.  Joining me now Mark Potok, editor of the Southern Poverty Law Center‘s “Intelligence Report”.  He‘s an expert on white supremacy. 

All right, so look, as they say we can‘t draw any conclusions at this point, fine.  But based on what you know about Hale and based on what you see, wouldn‘t that be the first place you‘d start looking?

MARK POTOK, SOUTHERN POVERTY LAW CENTER:  Yes to be blunt.  I think it‘s clear that it‘s really extremely probable that either a follower of Hale, a member, former member of his group or a sympathizer in some way carried this out, one or perhaps two people.  You know, I think the likelihood that Hale, himself, was involved is rather remote and I say that because he‘s being held under conditions which make it almost impossible for him to communicate with the outside world.  He is really locked up tight in Chicago...

(CROSSTALK)

ABRAMS:  Give us a...

(CROSSTALK)

ABRAMS:  ... are there any rules in this white—with these white supremacists that follow Hale.  I mean you know, we talk about the mob, we talk about gangs sometimes, and there are certain rules that apply when it comes to law enforcement or judges.  Any rules like that apply here? 

POTOK:  No, I wouldn‘t say so.  I mean certainly there are prison gangs and so on that are (UNINTELLIGIBLE) with white supremacy that have certain rules about, you know, sort of kill to get in, die to get out, that sort of thing.  Certainly snitches are despised universally in this world.  But no, I wouldn‘t say that.

I mean I think the relevant facts really are “A” that Matt Hale has in fact in the past solicited the murder of this judge, and that not only that, members of his group have posted on Internet sites on at least two or three different occasions pictures of the judge‘s family, their home address, pictures of their daughters, and a number of other personal characteristics like that.  On top of that Hale, before he was arrested, spent a great deal of time bad-mouthing this judge in terms, you know, I can‘t repeat on national television.

You know, so I think it‘s quite clear that he in effect urged his followers to at least look very unkindly on this judge.  You know, and the other thing I think that it‘s important to remember in all of this is that in 1999 when Matt Hale, the so-called Pontifex Maximus of this group, was denied his law license, a much lesser matter than going to prison for many years.

A follower went berserk, went on a rampage the next morning and ended up murdering two people and badly wounding nine others before killing himself.  So the point I‘m trying to make, of course, is that this is a group that contains people who are quite scary.  You know, they‘re responsible for a great many crimes and they‘ve really left quite a trail of blood across this country.  So I think the likelihood...

ABRAMS:  Here‘s what...

POTOK:  ... is very high. 

ABRAMS:  Here‘s what the Chicago police say about a possible link. 

(BEGIN VIDEO CLIP)

MALLOY:  There‘s much speculation about possible links between this crime and the possible involvement of hate groups.  This is but one facet of our investigation.  We are looking in many, many directions, but it would be far too early to draw any definitive links.  The case is too new and the evidence is still being worked up.  It is also too soon to determine a motive. 

(END VIDEO CLIP)

ABRAMS:  All right.  That may be the case, but it would also be too foolish for them not to start there. 

POTOK:  Well I mean obviously.  You know, a police investigation has to keep all possibilities open.  They are quite right to approach it that way.  You know, for us, the people who are not criminal investigators, who are not actually investigating the case, and who know something about the political situation surrounding this judge and in particular the World Church of the Creator, you know...

ABRAMS:  All right.

POTOK:  ... I think it‘s obvious that the probability is quite high. 

ABRAMS:  I just want to put up the number.  If you‘ve got any information on the killing of the family of this—this is just horrible.  And I really, you know, I hope that anyone with any information, 312-744-8445.  Judge came home last night and found them dead in the house. 

All right, that‘s the number.  Please, if you got anything, give them a call.  Mark Potok thanks a lot. 

POTOK:  Thank you. 

ABRAMS:  Coming up, the Supreme Court rules it‘s unconstitutional to execute murderers who were under 18 when they committed their crimes.  Seventy-two killers will now get off death row.  If we‘re going to have a death penalty, question is should it apply to them?  I say no, even though I support the death penalty. 

Plus, this video prompting many of you to write in—Jackie Peterson moving things out of Laci and Scott‘s home, many of you saying that she looks awfully healthy, coming up. 

(COMMERCIAL BREAK)

ABRAMS:  A Supreme Court ruling today allows 72 convicted killers off of death row.  Relates to the people under the age of 18.  We‘ll debate, coming up, but first the headlines. 

(NEWS BREAK)

ABRAMS:  We‘re back.  It was an absolutely horrendous murder.  Christopher Simmons, 17 years old with help from a younger accomplice, he kidnapped neighbor Shirley Crook and in the victim‘s sister‘s words...

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Beat her up, hog-tied her and took her out to the viaduct where he pushed her into the water. 

(END VIDEO CLIP)

ABRAMS:  Her head wrapped in duct tape, Shirley Crook died that day.  Simmons had boasted to friends that they would get away with the crime because they were juveniles.  Missouri jury found him guilty, sentenced him to death—not anymore.  Today the U.S. Supreme Court voted 5-4 to strike down the death penalty for killers who committed their crimes before their 18th birthday.

Writing for the majority, Justice Anthony Kennedy cited—quote—

“involving standards of decency in deciding which punishments violated the Eighth Amendment‘s”—national trends towards fewer executions of juveniles and international opinion in the decision were cited as well.  Before the ruling, just 19 states allowed for executions of killers who committed their crimes before turning 18.  There are 72 of those inmates nationwide -- 29 in Texas.  For inmates like these, Whitney Reeves, Jorge Salinas, Raymond Cobb and Robert Acuna all got reprieves today. 

All right, “My Take”—it‘s a tough call for me because I support the death penalty, but in the end I have no problem saying that a 16 or 17-year-old should get life rather than the death penalty.  The death penalty should be reserved for the worst of the worst and sure some of these people‘s crimes fall into that category.  But their age means something.  It doesn‘t mean that they get off.  Remember, a life sentence means more years in prison for them because they are young, than for an adult.

William Rusty Hubbarth is an attorney and vice president of “Justice For All”, which describes itself as a non-profit criminal justice reform organization.  He thinks that the court made the wrong call, and with me again criminal defense attorney Geoffrey Fieger. 

All right, Mr. Hubbarth, what‘s the problem with saying you know what, 16 and 17-year-olds are going to be charged as an adult.  They are going to be convicted if they murder someone.  They are going to serve life in prison, but because of their age, because in our society they are not allowed to do so many other things, we‘re going to say that they are going to be treated differently? 

WILLIAM HUBBARTH, “JUSTICE FOR ALL”:  Well, the line has been drawn previously between 16 and 17 in many different areas.  The primary one that comes to mind is the fact that you can enlist and be trained as a professional killer in the United States military at the age of 17, with all the psychological ramifications that go with that.  You can become emancipated.  You can drive a vehicle legally across country and you can marry at the age of 17.  And to say that you can do all these but cannot be judged fully accountable because of your youth when it comes to committing a heinous capital murder is a travesty of justice. 

ABRAMS:  But none of those really—none of the examples you just cited, though, really go to the diminished ability.  I mean the fact that these people can do certain things—sure, there are a lot of things.  Fifteen-year-olds can go to school as well.  We could sit here—we could cite all the different examples of what 15, 16, and 17-year-olds can do, and then on the other hand, you can say the bottom line is you know they still can‘t vote.  They still can‘t drink.  They are treated differently by our society.  If we‘re saying that they are not old enough to do certain things, we‘re still saying that they are old enough to face the death penalty? 

HUBBARTH:  There were a lot of guys that came back from Vietnam after serving a year in combat that couldn‘t drink because they weren‘t 21 yet.  That‘s a specious argument.  In regards to the capacity to know what they are doing, if the United States government says a 17-year-old is capable of being judged and employed as an adult and trained to kill, then they should be capable and culpable enough to be executed for the commission of capital murder.  We‘re not talking about 15 or 16-year-olds.  We‘re talking specifically about 17-year-olds and...

(CROSSTALK)

HUBBARTH:  ... that‘s where the dichotomy exists.

ABRAMS:  Let me read from Justice Kennedy‘s—read Justice Kennedy‘s opinion.  The rejection of the juvenile death penalty in the majority of states, the infrequency of its use even where it remains on those books and the consistency and the trend toward abolition of the practice provides sufficient evidence that today‘s society views juveniles as categorically less culpable than the average criminal.

Geoffrey, what do you make of it?

FIEGER:  Well, we have the distinction of being the only country in the world—I repeat the only country in the world that allowed the execution of children who had committed their crime before the age of 18, and that includes some of the most uncivilized countries in the world.  So we shouldn‘t consider ourselves that progressive.  This also, Dan, effectively rectifies a contradiction, if you will. 

The Supreme Court has previously ruled that we may not execute children.  Why we could execute people who have committed the crime as children only because they were later past the age of 18 and then allowed the execution to take place is an essential contradiction and hypocrisy that really needed to be rectified.  Beyond all that children are different and there‘s a recognition by Justice Kennedy that children are different.  All those examples cited by your guest are not true in every state, and many states don‘t allow people under the age of 18 even to give consent to sex, so it‘s different for every state and those...

HUBBARTH:  ... the natural standard is to join the military when you‘re 17...

FIEGER:  That...

(CROSSTALK)

FIEGER:  The military doesn‘t have anything to do with it, and our military isn‘t populated by 17-year-olds...

HUBBARTH:  I beg to differ sir.  If you take a look at it, it is populated by 17-year-olds...

FIEGER:  Oh, yes...

HUBBARTH:  ... and it has been since World War II. 

ABRAMS:  All right.  Let me read one more—number two here—from the—Justice Kennedy‘s majority opinion.  Once juveniles‘ diminished culpability is recognized, it is evident that neither of the two justifications for the death penalty retribution and deterrence of capital crimes by prospective offenders provide adequate justification for imposing that penalty on juveniles...

(CROSSTALK)

FIEGER:  The justification is absurd also.  One, capital punishment has never, ever, ever—I repeat never been found to be a deterrence, and second of all...

(CROSSTALK)

FIEGER:  The only justification you can get for it is retribution, and that‘s true, and that puts us among the most uncivilized country in the world because we‘re the only ones who practice it.

HUBBARTH:  My take on that...

ABRAMS:  Go ahead Mr. Hubbarth...

HUBBARTH:  ... is we are a premiere country in the world and there is an effective deterrence by executing a murderer to keep them from murdering again.  We‘ve had horrible examples...

(CROSSTALK)

HUBBARTH:  ... of murderers being released who were originally sentenced to death...

(CROSSTALK)

FIEGER:  In fact, you‘re wrong...

(CROSSTALK)

FIEGER:  The most...

(CROSSTALK)

FIEGER:  You‘re 100...

(CROSSTALK)

FIEGER:  You‘re 100 percent wrong.  Ask any expert in criminal justice they‘ll tell you the least likely to kill or the least likely to recidivist is a convicted murderer. 

HUBBARTH:  I have two words for you...

FIEGER:  They are the least likely...

HUBBARTH:  ... to respond to that sir.  It‘s Kenneth McDuff and...

FIEGER:  It‘s nonsense. 

HUBBARTH:  ... if you‘re familiar with the Kenneth McDuff case in Texas...

FIEGER:  Those are hypocrithal (ph) cases.

HUBBARTH:  No, that is a standard case...

(CROSSTALK)

HUBBARTH:  ... and he did come out and he did...

ABRAMS:  I know, but you can‘t cite individual cases...

HUBBARTH:  ... commit numerous murders afterwards.

ABRAMS:  Yes, I know...

HUBBARTH:  You can‘t cite individual cases...

ABRAMS:  ... citing individual cases, though—it doesn‘t tell you what the national standard is.  Citing a single case of a recidivist tells you nothing...

FIEGER:  Danny, this case...

ABRAMS:  ... about—I got to wrap it up. 

FIEGER:  You‘re much more likely to be executed...

ABRAMS:  I got to wrap it...

FIEGER:  ... if you‘re a man.  You‘re much more likely to be executed...

ABRAMS:  I‘m getting screamed at...

FIEGER:  ... if you‘re black...

(CROSSTALK)

HUBBARTH:  No sir, you‘re not...

(CROSSTALK)

ABRAMS:  All right...

(CROSSTALK)

ABRAMS:  Now, we got some—guys, I‘m sorry.  Stop.  We got breaking news here out of Iraq.  Word from Baghdad, it‘s been confirmed by NBC News the presiding judge in Saddam Hussein‘s trial has apparently been assassinated. 

NBC‘s Jim Miklaszewski joins us now from the Pentagon with the story. 

Hi Jim.

JIM MIKLASZEWSKI, NBC NEWS CORRESPONDENT:  Dan, NBC News has learned that the 35-year-old judge, Ra‘ad Juhi, was apparently gunned down today in Baghdad as he left his home.  Now Juhi was seen on video, but just barely during the initial courtroom appearance with Saddam Hussein.  And at the time the young judge gained some widespread respect and admiration for standing his ground against the belligerent former dictator who wagging his finger severely lectured the young judge. 

Now Juhi had already survived several attempted assassinations and was forced to move with his family, his wife and three young boys into a compound that was surrounded by concrete walls that were constructed to withstand sizeable bombs.  Now Juhi normally traveled with an armed escort, but it‘s unclear—the details of the assassination today are still unclear.  Juhi was a former prosecutor under the former Saddam Hussein regime. 

Now as the chief investigative judge, he was handling 12 high profile cases including Saddam Hussein‘s and the infamous “Chemical Ali”.  U.S.  officials say that the attack on Juhi today was just not the assassination of the judge, but was an attack on the entire Iraqi judicial system.  Nevertheless, they predict that the legal proceedings against Saddam Hussein will remain on course.  Now, the next trial date or court appearance for Saddam Hussein has yet to be scheduled—Dan. 

ABRAMS:  Wow.  Jim Miklaszewski thanks for that report.  Appreciate it.

Coming up, the man suspected of being the BTK serial killer in court charged with 10 counts of murder.  How do you represent a guy like that after he reportedly confessed to many of them?

And a new development in the Terri Schiavo case, the parents of the severely brain damaged woman have asked a judge to grant their daughter a divorce.  Her husband is fighting to remove her feeding tube.  Can the parents get a divorce? 

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  Back now with our “Just a Minute” segment.  I lay out today‘s other legal stories.  My guest has a minute to discuss each issue with me.  Back with us is criminal defense attorney Geoffrey Fieger. 

Issue one:  Prosecutors in the Elizabeth Smart kidnapping case are asking for permission to medicate the woman accused of kidnapping Smart in June of 2002 so she‘ll be competent to stand trial.  According to court documents, Wanda Barzee suffers from a severe psychotic disorder, causing paranoia and delusions.  She refuses to get medical treatment fearing they‘ll be used against her.  Barzee‘s attorney says forcibly medicating her would violate her rights and it‘s unlikely to change her condition.  So question, can prosecutors force her Geoffrey?

FIEGER:  The answer is—the simple answer is no.  But I kind of enjoy it.  You understand—she is accused of a terrible crime.  She is also—her psychosis causes her to accuse the doctors, Danny, of saying that they are working against God‘s plan.  Well if that‘s a psychosis, then we‘re going to have to start involuntarily medicating Jerry Falwell and Jimmy Swaggart...

ABRAMS:  Oh come on...

FIEGER:  ... and the people who claim that they are working against God‘s plan.  Let me just tell you...

ABRAMS:  All right...

FIEGER:  ... OK, if that‘s the psychosis, you‘ve got to go through in

·         under the law.  You‘ve got to go through a whole litany of steps and show that this would really assist her, that this would really allow her to participate in her own defense.  That this really would be effective and there aren‘t other alternatives, but let me just tell you, they are not going to be successful in doing it. 

ABRAMS:  Yes and I think the U.S. Supreme Court has actually ruled on this issue and said just in terms of competency you can‘t force medical treatment on someone...

FIEGER:  Remember, her psychosis is...

(CROSSTALK)

FIEGER:  ... that she says they are working against God‘s plan...

(CROSSTALK)

ABRAMS:  We‘ll have Geoffrey‘s direct e-mail address for all of you who want to write to him about that last comment. 

Anyway, the parents of Terri Schiavo are asking a judge whether to allow her to divorce her husband Michael.  Bob and Mary accuse him of adultery and not acting in his wife‘s best interest.  He‘s trying to remove Terri‘s feeding tube saying she would not be want to kept—she would not want to be kept alive artificially.  Michael Schiavo is still married to Terri but is living with another woman and has two children by her.  The Schindlers have less than three weeks to find a way to keep their daughter alive before her feeding tube is removed on March 18.

All right, Geoffrey, I know you‘ve got a personal stake in this one.  You feel strongly about this.  But let‘s strictly talk about the issue of divorce.  I don‘t think that the Schindlers have any authority to file for divorce on behalf of Terri because he‘s still considered the next of kin. 

FIEGER:  Well isn‘t this an idea whose time has come.  There are millions of in-laws all over this country, Danny, that want the right to be able to file for divorce on behalf of their child against the child‘s wife or husband who they don‘t like.  But really it‘ll never happen.  The judge has already indicated he won‘t hear any other motions. 

The filing of these 11 motions is perfunctory.  The judge is going to throw them out.  They won‘t get anywhere in the appellate court and they believe that what the husband is trying to do is working against God‘s plan.  Maybe they need to be medicated too.

ABRAMS:  All right.  Geoffrey Fieger, thanks.  Good to see you. 

Coming up, why I think Michael Jackson will not be convicted.  It‘s my “Closing Argument”, coming up.

(COMMERCIAL BREAK)

ABRAMS:  Michael Jackson I believe will walk out of the courtroom behind me a free man if everything goes as it sounds like it‘s going.  It‘s my “Closing Argument” coming up.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why I believe Michael Jackson will not be convicted by this Santa Maria jury.  If both the prosecution and the defense deliver what they promised in the opening statements, I find it hard to believe the jury is going to find proof beyond a reasonable doubt that Jackson molested the child, gave him alcohol in an effort to molest him, or engaged in a conspiracy.  Now maybe it‘s just the lawyering, but what the prosecutors are going to present based on the opening is the accuser and his family‘s accounts of being holed up by Jackson and his team in hotels and at Jackson‘s Neverland Ranch. 

The boys over count experiencing or witnessing abuse by Jackson.  Sure, they‘ll have some corroboration, evidence from other witnesses about Jackson putting liquor into coke cans.  And it‘s clear he had some porn in his Peter Pan inspired getaway.  But he‘s charged with plying the boy with liquor so that he could molest him.  Without proving the intent to molest, the alcohol charge means nothing. 

The conspiracy is going to depend largely on the testimony of the mother.  She‘s a huge problem.  Even prosecutors concede she‘s been a scammer in the past.  She‘s made allegations about false imprisonment and sexual abuse.  It looks like the defense may be able to show that at least some of those allegations were false.  But more importantly, the timeline is laid out by Jackson‘s attorneys, will be I believe insurmountable—an insurmountable problem for prosecutors. 

The family repeatedly tells investigators, social workers, the media that Jackson is a great guy through February 21, 2003.  The prosecutors say the abuse happened between February 20 and March 12.  Prosecutors want the jurors to believe that after this negative documentary about Jackson airs, Jackson and his team frantically try to make sure the family says nice things about Jackson on a rebuttal tape.  That Jackson‘s world is crashing down on him because he said he likes to have children sleep in his bed and right then Jackson suddenly decides to molest the boy for the first time, a boy he‘s trying to imprison to make sure he says there was no molestation. 

And why didn‘t any of them report any of this to the Department of Family Services?  Even the boy‘s own account is troubling.  At the grand jury he says he was definitely molested by Jackson twice, but he has dreamlike recollections of Jackson molesting him other times as well.  Bottom line, the same way prosecutors will be able to prove Jackson is weird, inappropriate, and at times maybe downright frightening, the defense will be able to show this family can‘t be trusted enough to take away Jackson‘s freedom based on their testimony.  I predict, and we‘ll see, that Jackson will be found not guilty. 

I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night we told you Modesto police were called to the home of convicted murderer Peterson and his murdered wife Laci on Saturday after neighbors reported a loud argument between Laci‘s mom and—Sharon Rocha—and Scott‘s mother and brother, Jackie and John.  The confrontation occurred as Scott‘s family tried to take out furniture and other items. 

Stephanie Seglin from Maryland writes, “Until today I felt sorry for Jackie Peterson.  I thought she was a decent lady with a lot of class.  There seems to be a sense from everyone in this family of a total lack of responsibility in their lives.”

Jimmy C. from California.  “I could not believe how fit Jackie Peterson looked carrying that ironing board from her convicted double murderer son‘s former home.  I mean for a woman on oxygen seen every day for the last two plus years in court and in interviews, she looked as healthy as Jose Canseco on his best day in Major League Baseball all juiced up rounding third.”

Also last night opening statements in the Michael Jackson case and Jackson‘s attorney tried to discredit the accuser and his family.

Bob Fedorowicz in Pennsylvania.  “It seems everyone has all but forgotten Michael Jackson‘s own false accusations of abuse at the hands of the police who arraigned him.  The accuser‘s mother is not the only one with a history of false allegations.”  Good point, Bob. 

And Pat Moreland in Nevada asks, “Who is the guy who is always there with the umbrella for Jacko and how much does he get paid to be a stupid lackey?”

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

That does it for us tonight.  I was just getting the word that we are out of time.  Coming up next, “HARDBALL” with Chris Matthews.  I‘ll see you tomorrow.

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

Content and programming copyright 2005 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2005 Voxant, Inc. ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and Voxant, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

Discuss:

Discussion comments

,