updated 3/10/2005 3:55:28 PM ET 2005-03-10T20:55:28

Guest: Quintin Cushner, Howard Fineman, Paul Cambria

(BEGIN VIDEOTAPE)

KEITH OLBERMANN, HOST (voice-over):  Which of these stories will you be talking about tomorrow?

Trying to shoot holes into a key prosecution witness.  The Jackson defense catches the accuser‘s brother telling two versions of how he happened to see the molestation. 

And speaking of two versions, the latest re-creation from Michael Jackson Puppet Theater.  And this suspiciously similar re-creation from a well-known popular late night talk show. 

The congressional steroid hearing.  The baseball players to be subpoenaed can they still refuse to testify?

And it is call upskirting.  And apparently it is legal enough that it does not result in jail sending. 

All that and more now on COUNTDOWN.

(END VIDEOTAPE)

OLBERMANN:  Good evening. 

Juries are said to dislike two things, seeing a lawyer beat up an old witness, and seeing a lawyer beat up a young witness.  Our fifth story on the COUNTDOWN, evidently Michael Jackson‘s lawyer does not have much choice in this case and at minimum, at least he seems to be doing the beating up pretty well. 

The continuing attempt to turn the accuser‘s brother into Swiss cheese and the arrival of the accuser himself on the stand today.  It‘s your entertainment and tax dollars in action, day 478 of the Michael Jackson investigations.

The accuser called to the stand in early afternoon.  The now 15-year-old boy was not asked for details about his alleged molestation but Rather, principally about how Jackson coached him before his participation in the Martin Bashir documentary. 

“He told me to say he helped me and that he pretty much cured me of cancer,” the witness testified.  The accuser also said that he, Jackson and others looked at sexually explicit web sites on the second night he stayed at Jackson‘s home.  And he said that once his opinion of Jackson had been, “I thought he was the coolest guy in the world.  He was my best friend ever.” 

Earlier, a third day of testimony from the accuser‘s brother.  The younger boy has told the court that he twice walked upstairs into Jackson‘s bedroom and found the singer both times molesting his brother. 

But defense attorney Thomas Mesereau produced a statement made by the witness to sheriff‘s deputies, in which he had told them that the second time he saw his brother being molested, he was already on a couch in that bedroom, pretending to be asleep. 

When confronted with the contradiction, the accuser‘s brother said he was nervous when he talked to the deputies and, oh by the way, he did not see molestation happen twice.  He saw it happen three times. 

There were also apparent contradictions about the family‘s emotions during the visit to Jackson‘s ranch, some of them caught on tape and made into a music video shown to the jury. 

To Santa Maria, California, in a moment.  First for the other highlights of the testimony, we turn to another edition of our semi re-creation Michael Jackson Puppet Theater. 

(BEGIN VIDEOTAPE)

OLBERMANN (voice-over):  “Mr. Accuser‘s Brother, you say it was awful at the Neverland Ranch?”

“Yes, Mr. Mesereau.” 

“Well, it didn‘t look so awful when they taped you visiting the Neverland zoo, did it?”

UNIDENTIFIED MALE:  Ooh!

UNIDENTIFIED MALE:  Ooh!

UNIDENTIFIED MALE:  Ooh!

OLBERMANN:  “I‘m having such a good time, Michael.” 

“Feel free to pet the monkey.” 

“Yes, and how many times do you say you saw Mr. Jackson molesting your brother?”

“Two.  No, three.  Two.” 

UNIDENTIFIED MALE:  Ooh!

UNIDENTIFIED MALE:  Ooh!

UNIDENTIFIED MALE:  Ooh!

OLBERMANN:  I got a good lawyer this time.  And it was nice to have Tito with me today.  Tito, get me a tissue!

Woo-hoo-hoo!

(END VIDEOTAPE)

OLBERMANN:  Those were not actual quotes.  Except maybe the part about Tito. 

The headline, nonetheless, the start of testimony by the accuser.  Our eyes inside the courtroom today, Quintin Cushner, who‘s covering the trial for the “Santa Maria Times” newspaper. 

Mr. Cushner, good evening. 

QUINTIN CUSHNER, “SANTA MARIA TIME”:  Good evening to you. 

OLBERMANN:  The testimony of the accuser, the district attorney asked him if he recognized the defendant, and Linda Deutsche of the A.P., one of the pool reporters, said that as he answered yes, the expression on his face, quote, “appeared to be verging on a sneer.”  Is that something of an exaggeration or did the boy show genuine emotion towards Michael Jackson today?

CUSHNER:  He did appear to give Michael Jackson a look today.  I‘m not sure if it was a sneer.  But there seemed to be no love lost between the two. 

OLBERMANN:  The—the actual testimony by this boy, that Jay Leno was the comedian about the video that they made, the Martin Bashir documentary.  It didn‘t really touch on the molestation charge at all.  Assuming it will, but was there a reason it did not today?

CUSHNER:  My belief is that District Attorney Tom Sneddon will go into that in some detail tomorrow.  And after the court takes a break for motions on Friday, he‘ll be back on the stand on Monday to speak further about the specifics of the allegations. 

OLBERMANN:  Give me the overall impression—I‘m sorry.  Give me the overall impression that you had of the impression that the accuser made as a witness?

CUSHNER:  The accuser was clean cut and very soft-spoken.  He looked as if, to use a cliche, as if he could be the boy next door.  A crucial part of what the defense is trying to show with this witness is that he‘s an unsavory person from an unsavory family, and his appearance on the stand today seems to go directly against that argument. 

OLBERMANN:  And about the accuser‘s brother, yesterday with this business about Jackson having supposedly shown the boy a pornographic magazine that turned out to have been issued until several months after the last time the boy saw Jackson, the younger brother looked like, at best, a confused witness.  The testimony today seemed even more self-contradictory. 

Is there any way to tell what he looked like to the jury after what happened today?

CUSHNER:  Well, some of the discrepancies were—were problematic, and jurors did take notes in their notebook when they noticed a contradiction. 

However, the boy did stick to his story that he saw Michael Jackson abuse his brother during two separate instances at Jackson‘s Neverland Ranch.  And I think as this trial goes on, that image may stick with them.  Ultimately, however, I think that the accuser‘s testimony will be the most important during this trial. 

OLBERMANN:  Nonetheless, at one point he—he answered Mr. Mesereau that there was—that there had been three incidents involving his brother.  Is there confusion as to how many things he witnessed or just to what he‘s testified at a given point?

CUSHNER:  There was some controversy whether there were three allegations against Jackson made during the grand jury hearings but that the prosecutors decided that they only had a case for two of those allegations.  That‘s still unclear at this point, and it was not made explicit in court today. 

OLBERMANN:  But that would be the explanation, at least from the prosecution‘s point of view. 

CUSHNER:  That certainly would be. 

OLBERMANN:  OK.  Quintin Cushner, covering the Jackson trial for “The Santa Maria Times,” joining us here tonight on COUNTDOWN.  Great thanks for your time, sir. 

CUSHNER:  Thank you.

OLBERMANN:  There has been a sea change in the Jackson story, outside of the one taking place in the courtroom, literally outside.  The crowds that enveloped many of the preliminary hearings have pretty much vanished.  The feel of the whole thing has turned from circus to perhaps sideshow, from cause celebre to faintly silly.  Very probably because the thing is not being televised. 

It has led one network to do dramatic recreations of the testimony each night and led us to do Michael Jackson Puppet Theater.  Speaking of that, last night it led to—well, see if this seems vaguely reminiscent of something. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Order.  Order!

UNIDENTIFIED MALE:  Are you ready, Mr. Jackson?

UNIDENTIFIED MALE:  Yes, your honor. 

(END VIDEO CLIP)

OLBERMANN:  Mm-hmm! 

Our friend Mr. Leno is, of course, operating with at least one hand tied behind his back on this story, going for a gag after having been given one.  Listed as a potential witness in the trial, Jay has had to resort to designated Jackson joke monologue pinch-hitters. 

George Lewis tonight in Los Angeles with more on “THE TONIGHT SHOW‘s” conundrum.  Potato Head Theater!

(BEGIN VIDEOTAPE)

GEORGE LEWIS, NBC NEWS CORRESPONDENT (voice-over):  No question the Michael Jackson trial provides plenty of fodder for late night comedians. 

DAVID LETTERMAN, HOST, “LATE NIGHT WITH DAVID LETTERMAN”:  Well, now Michael Jackson has been accused of leaking grand jury testimony.  You know, I would hate to see Michael get himself into some kind of legal trouble. 

LEWIS:  But while Dave may be able to make jokes like that, Jay says he can‘t. 

JAY LENO, HOST, “THE TONIGHT SHOW”:  Well, it‘s this gag order.  I‘m not allowed to tell any Michael Jackson jokes.  I can still write them.  I can‘t tell them. 

LEWIS:  So he‘s been having surrogates do the Jackson jokes. 

BRAD GARRETT, ACTOR:  So let‘s see what‘s new in the Michael Jackson trial. 

LEWIS:  Last Friday, Brad Garrett took over the monologue as Leno kept his mouth shut.  On Monday, it was Dennis Miller‘s turn. 

DENNIS MILLER, COMEDIAN:  I see where Michael Jackson and George Hamilton have officially crossed lines on the pigmentation flow chart. 

LEWIS:  And last night, Roseanne Barr. 

ROSEANNE BARR, COMEDIAN:  Defense lawyers say Michael might testify.  They don‘t really want him to, but they think it‘s the only way they can get his nose to grow back. 

LEWIS:  It‘s beginning to look like a full employment act for guest comics. 

(on camera) How long can this go on?

LENO:  Have you ever had a lawyer?

LEWIS (voice-over):  The gag order covers everyone connected with the Jackson case. 

MICHAEL JACKSON, ENTERTAINER:  I‘m sorry.  I‘m under a gag order. 

LEWIS:  And legal experts say it raises serious issues for both Jackson‘s defense team and the NBC lawyers representing Leno. 

PROF. LAURIE LEVENSON, LOYOLA LAW SCHOOL:  The defense may argue, “Gee, Michael Jackson‘s right to a fair trial is important.”  It‘s also important that Jay Leno have his First Amendment rights. 

LEWIS:  And while the lawyers argue, Leno and his guests are having the last laugh. 

GARRETT:  What‘s Michael Jackson‘s favorite wine?

“Come on, your mom won‘t know!”

LEWIS:  George Lewis, NBC News, Los Angeles.

(END VIDEOTAPE) 

OLBERMANN:  There is, of course, another television story tonight.  We covered in detail last night how the retirement of the oldest and longest serving man ever to anchor an American nightly network newscast became largely obscured by political undertones that so many seem so determined to turn into overtones. 

In a final moments interview, ironically with ABC News, Dan Rather said of the Killian memo story, quote, “I made a mistake.  I didn‘t dig hard enough, long enough, didn‘t ask enough of the right questions.”  And he says he believes his best work is ahead of him as a reporter. 

And then at 6:55 p.m. Eastern Time, 24 years to the day after having taken the chair from Walter Cronkite, then after weeks of newspaper articles, nearly all titled “Weighing Anchor” or “Anchor Away,” Mr. Rather gave his official 90-second farewell. 

(BEGIN VIDEO CLIP)

DAN RATHER, FORMER ANCHOR, “THE CBS EVENING NEWS”:  We‘ve shared a lot in the 24 years we‘ve been meeting here each evening.  And before I say good night this night, I need to say thank you. 

Thank you to the thousands of wonderful professionals at CBS News, past and present, with whom it‘s been my honor to work over these years.  And a deeply felt thanks to all of you who have let us into your homes night after night.  It has been a privilege and one never taken lightly. 

(END VIDEO CLIP)

OLBERMANN:  Also tonight, our previous story about how the original World Trade Center terrorists were allowed to write letters to other terrorists and to Arabic newspapers.  It was much worse than we first knew. 

And from a 36,000-foot plume of ash to a wispy memory, the latest installment of spew and spout from Mount St. Helens. 

You are watching COUNTDOWN on MSNBC.

(COMMERCIAL BREAK)

OLBERMANN:  It is one of the cliches of film.  A letter arrives from a prisoner.  It is full of cross-outs and big black ink from prison censors or in comedies, individual words cut out with scissors.  Our fourth story in the COUNTDOWN, evidently that cliche is anything but the truth, especially when it comes to terrorists inside U.S. prisons, international ones and domestic ones.

The domestic one, the Matthew Hale story in a moment. 

First, chief investigative correspondent Lisa Myers with an update on her starting report from last week that some of the 1993 World Trade Center bombers were being allowed to correspond with terrorists in other countries and even write pro-bin Laden op-eds for Arabic newspapers.

(BEGIN VIDEOTAPE) 

LISA MYERS, NBC NEWS CORRESPONDENT (voice-over):  Today top prison officials acknowledged that these three World Trade Center bombers wrote about 90 letters to contacts on the outside.  Letters not only to a Spanish terror cell but also to other Islamic extremists. 

Law enforcement sources tell NBC News that some of these letters, written in 2003 and 2004, went to militants in Morocco, a hot bed of terror recruiting. 

SEN. CHARLES SCHUMER (D), NEW YORK:  Lord knows what these letters said.  I mean, maybe they were just propaganda.  Maybe they were instructions. 

ALBERTO GONZALES, ATTORNEY GENERAL:  I don‘t believe that kind of thing should be happening. 

MYERS:  In an interview with NBC‘s Pete Williams, Attorney General Gonzales says he‘s working to fix the problem. 

GONZALES:  I was surprised.  It didn‘t seem to make any sense to me and I‘m sure to the average American.  You have to wonder.  How could this happen?

MYERS (on camera):  Corrections officers at Super Max tell NBC News that they complained to top officials a year and a half ago that letters from the bombers and other terrorists were not being carefully monitored.  They say they were ignored. 

(voice-over):  Today, Justice Department officials say they‘ve imposed new restrictions on letter writing by the three bombers because they broke a rule by writing letters to inmates in Spanish prisons. 

Joe Mansour (ph), who works at a federal prison in Virginia and has translated in terror cases, warned two years ago that many Arabic letters and phone calls are unmonitored, due to a lack of Arabic speaking staff. 

UNIDENTIFIED MALE:  In my opinion, nothing should come out of these prisons without being monitored.  Nothing. 

MYERS:  However, prison officials argue there always were plenty of translators. 

Arabic experts say prison officials underestimated the potential recruiting power of letters from convict terrorists. 

HEDIEH MIRAHMADI, AMERICAN ENTERPRISE INSTITUTE:  It‘s a power that the average person, or the average imam in a mosque doesn‘t have. 

MYERS:  Senior administration officials say they‘re now considering tighter restrictions on outside contact by all convicted terrorists. 

Lisa Myers, NBC News, Washington. 

(END VIDEOTAPE)

OLBERMANN:  That thought had apparently not occurred to those supervising Matthew Hale, convicted of trying to get a judge killed who had sentenced him to prison. 

One of Hale‘s attorneys says that last year, his client tried to get him to relay a secret message.  Hale‘s lawyer, Glen Greenwall telling the Associated Press that several months ago, the mother of the white supremacist came to him and said, quote, “I don‘t know what this message means, but Matt made me write it down verbatim so I could read it to you.  He said it is an emergency that you communicate this as quickly as possible.” 

Mr. Greenwall says he does not recall what the message was nor to whom it was to be delivered.  He did describe it as a cartoonish attempt at a coded message.  Greenwall says he talked to the FBI about it last week after the murders of the husband and mother of the judge whose death Hale had tried to arrange. 

Also tonight, the way man should settle all his problems.  Big crowds of people in the streets engaging in mass pillow fights. 

But shocking new statistics blaming breast cancer, not on smoking, but on secondhand smoke. 

Stand by.

ANNOUNCER:  You‘re getting your news Olbermann style, COUNTDOWN WITH KEITH OLBERMANN, part of the best primetime in cable news, MSNBC.

(COMMERCIAL BREAK)

OLBERMANN:  We‘re back and just in time to play that jingle and laugh which distinguishes the day‘s strange news from the day‘s really strange news.  Let‘s play “Oddball.”

We begin in the streets of Tel Aviv, the latest location in the pillow fighting craze that is sweeping the globe.  It started in London, where members used the Internet to coordinate pillow fights so they could just let off steam. 

There are rules, such as no swinging after the horn and no fighters without pillows are allowed.  But the first rule of pillow fight club is, you don‘t talk about pillow fight club. 

To San Diego where the best engineers from NASA‘s Jet Propulsion Lab were on hand to demonstrate the super strength of the latest robot arms.  What better way to do that than with a good old-fashioned arm wrestling competition against a 17-year-old girl? 

The three arms were built in New Mexico, Switzerland and Virginia Tech respectively, and each was beaten easily by the high school girl. 

Scientists theorize that the girl must have some sort of super human strength, because the arms had been previously undefeated against the nerds back in the lab.  With the flooven (ph) and the flaven (ph) and the—oi!

And if you experienced it live with us during the second half of last night‘s show, a very disturbing thing.  Whether or not it was actually disturbing was almost irrelevant.  This was the scene at 5:25 p.m. Pacific Time last night.  All of a sudden, there was this 36,000-foot plume of steam and ash above Mount St. Helens. 

Captured by television cameras in Washington state and even in Oregon, it was nothing the actual volcanic eruption of 1980 that killed 57 people and which witnesses said it looked like a mushroom cloud.  But it was, apparently, twice as big as the plume that formed last October when a mountain reminded us all that it was still around. 

What was even more disturbing, what we did not show you so as to not start a panic last night.  Bees!  They‘re everywhere!  And evidently, they‘re angry, because they own property on Mount St. Helens.  Bee!

Also tonight, former President Bill Clinton today playing golf. 

Tomorrow back to playing patient. 

And the pace of technology outstripping the pace of new law.  Why secretly filming up women‘s skirts is still pretty close to being perfectly close to being perfectly legal in this country.

These stories ahead.  Now here are COUNTDOWN‘s top three newsmakers of this day. 

No. 3, the Whole Foods all natural grocery chain says it will open a series of facilities that are half supermarket, half amusement park.  I shopped there once a week.  Trust me, it‘s already a 100 percent amusement park. 

No. 2, Fidel Castro.  The human dictator gave another one of his famous four-hour speeches today, the focus of which appears to have been he‘s going to give to Cuba‘s housewives 100,000 pressure cookers per month. 

Next year, George foreman grills for everybody!

And No. 1, Nathaniel Skiles of Kirkland, Washington.  He‘s been called for jury duty again.  The third time in the last two years.  Nothing newsworthy about that except that Nathaniel is 5 years old.  Well, he seems like a natural for the Jackson jury!

(MUSIC: “Just Leave Me Alone”)

(COMMERCIAL BREAK)

OLBERMANN:  It would be tasteless to the extreme, suggesting that former President Bill Clinton playing golf today, and schedule for more heart surgery tomorrow would be going from slicing to being sliced. 

Of course, as our third story begins, he would probably laugh at that bad pun.  President Clinton fitting in a round with his predecessor, President Bush.  The event hosted by golfer Greg Norman expected to raise about $2 million for tsunami relief.  Mr. Clinton was spending the day before surgery with Greg Norman, raising alarm bells, though. 

Among those who remember that on a previous visit to Norman‘s Florida home in 1997, the then president stumbled on some steps and ended up with a knee injury.  Mr. Clinton joking today, at least, I get to play before I go to the hospital this time. 

Once he gets there this time, doctors will perform what is known as a decortication, removing scar tissue that is pressing down on his left lung.  Either through a small incision or a video assisted scope inserted between his ribs. 

The link between smoking and heart problems is well established.  The link between secondhand smoke and heart problems is universally agreed upon, unless you asking ask the tobacco injury.  But tonight a major controversy in science over a California agency‘s impending declaration, that secondhand smoke causes breast cancer.  It‘s not linked to, not contributing to, the word used was causes. 

The Air Resources Board is supposed to finalize it‘s report, probably next Monday.  But what scientists have told it was revealed this morning by “USA Today.”  The board is the same group which issued landmark warnings decades ago about how auto emissions were affecting the air and the people who have to breathe it. 

The conducted—they conducted no new study, but rather they analyzed a series of other studies, and came to extraordinary conclusions.  Specifically, women exposed to secondhand smoke, depending on how long they have been exposed to it, have a risk of breast cancer 28 percent to 90 percent greater than those who are not exposed. 

I‘m joined now by Dr. Jonathan Samet, a professor of epidemiology at Johns Hopkins University, who‘s working on his own study of the link between secondhand smoke and breast cancer. 

Dr. Samet, good evening.

DR. JONATHAN SAMET, JOHNS HOPKINS UNIVERSITY:  Good evening. 

OLBERMANN:  If these numbers here are so alarming, where is the controversy over the validity of the interim report from this Air Resources Board? 

SAMET:  Well, I think the big paradox is the difference between what we see for active smoking, for women who themselves smoke, or we don‘t see this increasing risk, and for passive smoking where we do. 

OLBERMANN:  Can you explain that?  I mean, that seemed astounding to me, as well.  That they didn‘t present the precise data on it, but that the secondhand smoke was significantly more damaging than actually smoking would be to the women themselves. 

Can you explain that simply enough for someone like me, who‘s scientifically challenged? 

SAMET:  I‘ll describe what we‘ve learned.  When we look at women who themselves smoke, we see little or no increase in risk.  If we compare women who smoke to women who don‘t smoke.  On the other hand, if we compare women who themselves don‘t smoke and are passively exposed, to women who say—to women who say, they‘re not passively exposed.  We see an increase in risk.  And we would think that women who are passively exposed have far lower exposures to cancer causing agents in tobacco smoke, than women who are active smokers. 

OLBERMANN:  That would be the natural conclusion.  But why is this report suggesting it‘s otherwise? 

SAMET:  Well, the report looked at the actual epidemiological evidence coming from a number of studies.  And when they put that evidence together, they found the increased risks.  You mentioned this range of 28 percent to 90 percent.  And that drove much of their conclusion, and they said, well, perhaps nature is not working the way we might think it is here based on what we know about active smoking.  That passive smoking is having unanticipated level of effect. 

OLBERMANN:  Ultimately, based just on the news of this study which isn‘t even final, according to this group.  Not the next study, not yours, not the review of the next three studies, what do governments do about this now? 

What do women do about this now? 

SAMET:  Well, governments are already taking major steps to make certain that indoor air in the work places, public places is smoke-free.  I think the more difficult problem is for women concerned about their breast cancer risk, at least there‘s a warning here.  The evidence is telling us something.  And if they‘re concerned, it would certainly be quite reasonable to take action to avoid any—avoid exposure of secondhand smoke.  It reduces the risk for lung cancer and other diseases.  And maybe breast cancer is on that risk—on that list, as well. 

OLBERMANN:  Dr. Jonathan Samet, the professor of epidemiology at Johns Hopkins, our great thanks for your time tonight. 

SAMET:  Thank you.

OLBERMANN:  Not tobacco, but steroids and its effect on Congressional hearings.  Seven subpoenas served today to baseball players, who among them have hit a total of 2,887 home runs, and one of them is a pitcher. 

And Bill Cosby getting a different kind of summons.  Back to court a civil suit. 

Those stories ahead.  Now here are COUNTDOWN‘s top three sound bites on this day. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Michael!  Michael!  Michael!  Michael!  Michael! 

Michael!  Michael!  Michael!  Michael!  Michael!  Michael!  Michael!

JON STEWART, “DAILY SHOW”:  Hussein‘s judge takes risk and abandoned (UNINTELLIGIBLE).  “The New York Times,” he comes out because he believes so much in the cause.  Canadian Web site now is saying that we have revealed this judge according to a “Daily Show” report. 

We did not check the facts on that story, and I‘ll tell why did.  And I‘ll tell you why, there‘s a good reason why we didn‘t, because we don‘t check facts. 

JAY LENO, “TONIGHT SHOW”:  Did you ever notice how President Bush sometimes forgets, when he tries to use the cheat sheet to remind him.  He doesn‘t think anybody knows he‘s using the cheat sheet?  Why don‘t you take listen.   

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  America when it came to helping those who suffered from the tsunami...

(END VIDEO CLIP)

(COMMERCIAL BREAK)

OLBERMANN:  Seven baseball players, first asked, today subpoenaed to go to Capital Hill for steroid hearings.  So what happens in several of them go through with their threats to not show up.  Standby.

(COMMERCIAL BREAK)

OLBERMANN:  And here comes the subpoenas!  The House committee on government reform, today, transmitted those summons to five current and two former baseball stars to testify next Thursday about steroids in their sport. 

But in our number two story on the COUNTDOWN, the baseball folks don‘t seem to perceive the seriousness of being subpoenaed to testify under oath about the use of drugs that are illegal without a doctor‘s prescription.  Last Friday on this broadcast, Jack Curry of the “New York Times” said, that if the committee‘s invitation to the seven players were not accept, subpoenas would follow. 

The recipient have had varied responses.  Jose Canseco said he was going voluntarily. 

Frank Thomas of the Chicago White Sox not accused by Canseco or anybody else of steroid use, said he would be happy to testify.  He got a subpoena. 

A spokesman for Mark McGwire, admitted to using a steroid precursor during his record setting homerun season of 1998, told the “St. Louis Post Dispatch” today, that McGwire had respectfully declined an invitation to talk—subpoena. 

Rafael Palmero said date of the hearings, March 17, is his wife‘s birthday.  So, sorry, he can‘t go—subpoena. 

Pitcher Kurt Schilling of the Boston Red Sox said, he worried that hearing could turn into a witch hunt—subpoena. 

Jason Giambi was reportedly going back and forth with the committee over his possible appearance—subpoena. 

There‘s been no reported reaction from Sammy Sosa—subpoena. 

And a lawyer for the baseball players‘ union said, its leaders would attend only to address the current and perspective application of the industries new drug testing policy.  It‘s Chief, Don Fehr will attend the hearings.  Baseballs vice president, Rob Manfred will, but not commissioner Bud Selig, no subpoena. 

A I‘m joined now by “Newsweek‘s” chief political correspondent, Howard Fineman.  Good evening, Howard. 

HOWARD FINEMAN, “NEWSWEEK” MAGAZINE:  I‘d like to say that I‘m appearing here without a subpoena. 

OLBERMANN:  Well, when you have to get most people in here with subpoenas or threats of violence, but thank you.  It is interesting, you and I finally get to talk a little baseball, but actually, it‘s in the Congressional league. 

Like they said in “It‘s a Wonderful Life,” I never seen one before, but this has all the makings of a run on the bank.  Are we going to see ballplayers invoking the ah amendment, and instead of the Hollywood 10, are we going to get the steroid seven here? 

FINEMAN:  I think what the lawyer for Major League Baseball and the players is trying to do here, and he‘s one of the tops in Washington, Stan Brand, who has a lot of experience in this, is to try to keep it from getting there.  I think there‘s a possibility that a lot of these people won‘t show up.  And they may—baseball may dare the committee and its chairman to go to the full House of Representatives to seek a contempt of Congress citation.  At least that‘s the tough talk that you‘re hearing out of baseball tonight. 

OLBERMANN:  Well—I mean, that really is the level at which this things goes, from being perhaps a dog and pony show about steroids, into being something where Rafael Palmero is accused of being in contempt of Congress because he is staying home for—staying with his wife for his wedding anniversary.  I mean, realistically, have the player, those responses that I went through, have they set the stage for this kind of altercation? 

FINEMAN:  Well, they may have.  I mean, I think that what will probably happen is that, not just these three, but perhaps some others will show up.  It‘s not entirely clear, though.  I think baseball is basically saying, you know, come and get us.  We‘re going to give you these three.  We‘re not necessarily going to show. 

And perhaps we‘re going to dare you to seek a contempt citation from the full House, which I think Tom Davis, the chairman of the Government Reform Committee, is probably in a position to get.  So baseball with its airing instinct for taking a problem and making it worse, may be headed for doing that legally.  If all the players show up, they‘re going to be sworn.  I talked to the committee staff tonight, they‘re going to try to put these guys under oath.  At which point, some of them may have to plead the 5th

OLBERMANN:  So, after 34 years without baseball in Washington, they could put the baseball in position where some of the players can‘t go to Washington, because they could be arrested for being in contempt of Congress.  But now—you raise an interesting point. 

If they doing there, is there going to be any kind of immunity? 

Canseco had argued about that, and there has been some discussion today, that some limited immunity might be put into play here, because of that federal case in the Bay area involving the makers of the steroid, the Balco Company. 

FINEMAN:  Yes, if they get that far.  If these players show up, if they raise their right hand and take an oath, if they then seek to take the 5th amendment, the committee can offer them what‘s called use immunity, which would protect them from having any of that information used in any prosecution. 

However, committee staffers tell me, they‘re not that far along.  They haven‘t consulted with the Justice Department yet.  The problem with doing that is, if you give immunity to some of these people who may be potential witnesses in that federal case out in California, could complicate the Justice Department‘s case.  I mean, this could turn into quite a big confrontation with all kinds of legal cans of worms being opened up here in the next few days. 

OLBERMANN:  All you have to do is give somebody immunity and then say, do you know any other players who use steroids?  And you do have the Hollywood black list all over again. 

FINEMAN:  Yes, you do.  And as I understand it, the immunity grant only applies to you, that is the person testifying, not to the other people you may be testifying against. 

OLBERMANN:  Politics plus sports equals the dumbest thing in the world.  Howard Fineman of “Newsweek” and MSNBC.  As always sir, great thanks. 

One more part to this story.  Baseball Commissioner Selig won‘t be going, announced Monday, no matter what happens with steroids, none of the players even suspected, or even convicted if they are of using them will have their official records altered or even qualified. 

“We can‘t,” he says, “turn history back.”  History, in fact, suggests Bud Selig is dead wrong.  Selig and baseball are most worried about the taint on the performance of Barry Bonds.  Bonds starts the season just 53 home runs shy of breaking the all-time record with the most ever hit in a career.  But future baseball historians could easily discredit Bonds without ever mentioning the word steroids. 

And if you doubt that, here‘s a quiz question?  Who holds the record for the most strikeouts by a pitcher in a single baseball season?  Sandy Kofax of the Los Angeles Dodgers?  Or Nolan Ryan of the California Angels?  Well, although each is listed in the official baseball record book, Ryan as the American League record holder with are 383 in 1973, Kofax as the National League mark holder with 382 in 1965, the numerical record actually belongs to, of course, er Matt Kilroy.  Who?  Matthew Aloysius Kilroy of the 1886 Baltimore Orioles with 505 strikeouts. 

Why have you never heard of him?  Because baseball buried his record under a series of demeaning qualifiers.  He set it in the 19th Century before so-called modern baseball.  He played in times when teams only had one or two pitchers so he had an unfair advantage.  The league in which his team played wasn‘t truly a major league.  His 505 strikeouts were accomplished when they the pitchers stood 10 feet closer to the batter than they are today, Et cetera, et cetera, et cetera. 

So, you could probably invent your own caveats to disqualify Barry Bonds while still leaving him in the record books.  Well, he played back in the 20th Century.  Pitching was very weak in his day.  And Hank Aaron holds the pre-interleague play record.  You get idea.  Kilroy wasn‘t here and neither might Bonds be. 

Segueing then to our nightly round up of celebrity and entertainment news, “Keeping Tabs.”  The quote from the man at the wrong end of the suit.  “I am not going to give into people who try to exploit me because of my celebrity status.”  Bill Cosby.

After investigating the claims of doping and drugging by a Canadian woman prosecutors and—groping rather—prosecutors in Suburban, Philadelphia did not prosecute him.  But the announcement of the decision read like a virtual invitation to the alleged victim to sue Cosby in civil court.  And that is what she is now done.  Filing in federal court. 

The complaint says Cosby sexually assaulted her and caused her bodily harm after giving her what he had called an herbal medication.  Bill Cosby has denied all allegations. 

The announcement of his wedding exactly a month from yesterday has been like a clarion call to all those who like to notice Prince Charles.  A week ago in Australia, the groom to be was greeted by aboriginal dancers who weren‘t wearing any make-up, nor tops. 

Now two New Zealand women flashed the Prince claiming the offense he took at the dancers‘ toplessness was an affront to Australians and to women.  One small problem with the protest, Charles never said he was offended by the topless dancers in Australia.  He even exchanged pleasantries with them. 

You know, like, So, you‘re topless.  How is that working out for you? 

And lastly, one of the class actresses and class acts of Hollywood has died.  The winner of the 1942 Oscar for best supporting actress in Mrs.  Miniver, Teresa Wright, has succumbed to a heart attack.  She starred in such great films as “Shadow of a Doubt” and “The Best Years of Our Lives,” but she will perhaps be best remembered for her role as the wife of the doomed baseball star Lou Gehrig in “The Pride of the Yankees.” 

Teresa Wright was 24 when she made that picture and said she knew and cared nothing for baseball.  56 years later, she was invited to throw out the first pitch at a Yankees game and instantly became a rabid and informed baseball fan.  As one of her grandchildren said, it was as if she was possessed. 

Teresa Wright whose last film “The Rainmaker” came in 1997, was 86 years old. 

Up next, up skirting.  Perverts who target unsuspecting women with digital cameras and post the results on the web.  And there‘s almost nothing illegal about it.  Standby.

(COMMERCIAL BREAK)

OLBERMANN:  Up skirting.  No, it is not a process by which women climb the corporate ladder nor a hem stitch supported by Martha Stewart.  It is, unfortunately, exactly what it sounds like taking a camera and pointing it you skirts. 

In our No. 1 story on the COUNTDOWN, the almost unfathomable reality that it is apparently legal, or at least not very illegal.  Explanations of that in a moment.  First, the ugly picture itself from our correspondent Carl Quintanilla. 

(BEGIN VIDEOTAPE)

CARL QUINTANILLA, NBC NEWS CORRESPONDENT (voice-over):  The images are as shocking as they are easy to find online.  It is called upskirting.  And Bunny Brunt‘s (ph) teenage daughter Raquel was a victim last summer. 

UNIDENTIFIED FEMALE:  This guy was behind my daughter, waving a bag under her skirt.  I turned to the guy and in, what do you have in that bag? 

QUINTANILLA:  It was a video camera.  And Jeffrey Swisher (ph), the man, the latest perpetrator in a practice all too common.  As modern cameras get smaller and less noticeable on gadgets like cell phones. 

(on camera):  Many victims of video voyeurism have no idea they‘re being photographed.  As a warning, people hide cameras in bags near unsuspecting individuals taking private pictures of very private places.  These pictures can wind up on the Internet.  And generally the law is on the side of the camera operator. 

UNIDENTIFIED FEMALE:  We have the evidence, we have the tape, but they told me there‘s nothing you can do because there‘s nothing in the law that says that you can‘t videotape in a public area. 

QUINTANILLA (voice-over):  Swisher served only 10 days in jail for disorderly conduct, angering victims rights advocates. 

MARY LOU LEARY, NATIONAL CENTER FOR VICTIMS OF CRIME:  That doesn‘t make sense that you could prosecute somebody for installing a video camera in a shower stall, for instance and yet not be able to prosecute somebody for filming intimate parts in a public place. 

QUINTANILLA:  First amendment attorneys say changing the law could have dangerous consequences.  For instance, they say, what if someone tapes a traffic accident or a terrorist incident where someone is partially clothed?

LAWRENCE WALTERS, FIRST AMENDMENT ATTORNEY:  All of a sudden, you‘re labeling these people as sex criminals and sex violators, punishing them for the rest of their lives in some circumstances.  So, the legislature has to be very careful whenever it drafts law that restricts the gathering of information and in this case, public filming. 

QUINTANILLA:  But Jo Ling Zhang (ph) is trying to change things nonetheless.  She was a victim of upskirting five years ago in Seattle. 

UNIDENTIFIED FEMALE:  He had a digital video camera.  So at that time, I didn‘t know what he was doing with the camera. 

QUINTANILLA:  Zhang (ph) worked with Washington State lawmakers who enacted a new upskirting law last year arguing the crime may an precursor to more serious sex offenses. 

UNIDENTIFIED FEMALE:  Upskirting is a lot more than just some guy filming up your skirt and seeing your underwear.  You don‘t know what‘s going to happen next.  Maybe your picture will be sold on some porno site, maybe they‘re stalking you, you really don‘t know.  And that‘s what the fear is. 

QUINTANILLA:  As more victims like her speak out, other states may be forced to examine their laws more closely before more women have the camera turned on them.  Carl Quintanilla, NBC News, New York. 

(END VIDEOTAPE)

OLBERMANN:  Joining me now, Paul Cambria, former president of the First Amendment Trial Lawers Association and a criminal defense attorney who has represented Larry Flynt for many years.  Mr. Cambria, good evening.  Thanks for your time. 

PAUL CAMBRIA, FIRST AMENDMENT ATTORNEY:  Yes, sir.

OLBERMANN:  As you get the view from one of these cameras, how small they are and how easily moved and positioned they are, how is it in your opinion that using the upskirt kind of camera here, how is this legal? 

CAMBRIA:  Well, I think what is happening is it is more that it is not illegal.  Because what happens is most of the state statutes that deal with the subject talk about privacy in places: rooms, showers, dressing rooms, things like that.  They haven‘t addressed the new technology. 

What the federal government did in December, the president signed a bill which is the Video Volunteerism Prevention Act.  And there, what they‘ve done is talk about expectation of privacy including a part of the body and not just a room or an enclosure, which is the way most of these traditional stat statutes are dealing with the issue. 

Unfortunately, that federal statute doesn‘t cover anything except national parks, federal lands, maritime, airplanes, things like that.  But it should serve, and is supposed to serve, as a template for states to come into compliance, if you will, and start defining expectation of privacy as parts of the body, as well as just rooms. 

OLBERMANN:  So the states that have the inadequate legislation, should they now try to bring the legislation up to that federal level?  Or do we on a state by state level, suddenly move into, giving your past position with the first amendment issues, are we moving into first amendment issues? 

CAMBRIA:  We‘re always going to face a first amendment issue.  And it is going to boil down to what is considered an expectation of privacy. 

For example, if Marilyn Monroe walks over the proverbial subway screen and the skirt is blown up and there‘s a photographer there, well, there isn‘t a real expectation of privacy in a situation like that.  As contrasted to someone, let‘s say, who is walking in a mall and somebody is putting a camera under their skirt, they would have a legitimate expectation of privacy and something like that.  That‘s the real distinction in the law.  And that is, what constitutes expectations of privacy. 

In the past, the states have interpreted their statutes to not include public places.  Now this new federal legislation says wait a minute, you can redefine this and at the same time, comply with the first amendment because we‘re redefining expectation of privacy to include the person.  And what a reasonable person would find shouldn‘t be exposed to the public.  And that is a situation of looking under under your skirt, for example.

So the states need to come into compliance. 

OLBERMANN:  Very briefly, in the places where it is legal to do it, is it still legal to distribute it?

CAMBRIA:  Well, now you see, that becomes another question.  Once you start using telecommunications facilities, the Internet and so on, now you start moving into the federal jurisdictional areas.  And, if I were addressed with a case like, I would start off by saying, well, wait a minute, is it unlawful in that particular state to take that picture?  If it isn‘t, it shouldn‘t be unlawful to transmit it over the airwaves...

OLBERMANN:  Mr. Cambria, I‘m going to have to cut you off because of our time requirements here.  Paul Cambria, past president of the First Amendment Trial Lawyers Association.  Great thanks for your insight.  It‘s an extraordinary story. 

CAMBRIA:  Thank you. 

OLBERMANN:  That‘s COUNTDOWN.  Thank you down there for being a part of it.  I am the giant, irradiated anchorman.  Behold.

Goodnight—it‘s going to a fairly easy shot I suppose.  And good luck.

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.

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