updated 3/16/2005 12:21:01 PM ET 2005-03-16T17:21:01

Guest: Jim Thomas, Jami Floyd, Paul Pfingst, Michael Cardoza, Charlie Gasparino

ANNOUNCER:  This is a special edition of THE ABRAMS REPORT.

Tonight, new developments in the search for Jessica Lunsford, as police revealed they’re seeking a person of interest.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  The FBI, my detectives and the region’s detectives have been put on alert to try to find this individual.

(END VIDEO CLIP)

ANNOUNCER:  And the fourth and final day of testimony from Michael Jackson’s young accuser.  Does the prosecution’s star witness make or break this case?

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Any time you have the prosecution’s complaining witness essentially saying he had denied the core allegation in the case, that’s not a good moment for the prosecution.

(END VIDEO CLIP)

ANNOUNCER:  Tonight, where do prosecutors go from here?

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  The jury may say, Wait a minute.  I have a reasonable doubt now.

(BEGIN VIDEO CLIP)

ANNOUNCER:  Then...

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Mr. Nichols, you’re here today to...

(END VIDEO CLIP)

ANNOUNCER:  Brian Nichols back in custody and back in court, surrounded by 19 officers.  We’ll tell you what’s next for the man accused of going on a 26-hour killing rampage.

Plus: On the eve of Scott Peterson’s formal sentencing, renewed hope for the convicted killer.  What’s the new evidence his attorneys say could exonerate him?  And the conviction of former Worldcom CEO Bernie Ebbers.  Tonight, the man who brought down a multi-billion-dollar telecommunications giant and how prosecutors finally brought him down.

Now, live from Rockefeller Center in New York, Dan Abrams.

DAN ABRAMS, HOST:  Hi, everyone.  You can understand why we’ve got a special tonight.  There is so much news going on.  Tonight, what could be the break in the case of a missing Florida girl.  That’s where we start.  Nine-year-old Jessica Lunsford disappeared from her bed after her grandmother says she tucked her in.  Jessica’s been missing for almost three weeks.  Investigators now say there are what they call “red flags” in a lie-detector test taken by Grandma, Ruth Lunsford.  They also want to talk to a man they’re calling a person of interest in the case.

NBC’s Mark Potter joins us from Miami.  Mark, any sense from the authorities that Grandma and the person of interest are connected in some way?

MARK POTTER, NBC CORRESPONDENT:  No, in fact, they’re saying that that probably is not the case.  What they are saying is—the sheriff is saying, Dan, that he just won’t know how important this person of interest is to the investigation until he finds him and actually has a chance to talk to him about Jessica’s disappearance.  Officials are saying, however, that there are a couple of factors, unspecified at this time, that are leading them in his direction.

The sheriff won’t release his name at this time, but says that he is a man, an adult male, who lived in Citrus County, where Jessica disappeared.  He’s now believed to be out of state, where he is being sought by other police departments and the FBI.  The sheriff says that if he doesn’t find him in the next couple of days, he will release his name and other details.  Officials do say that the man they are seeking is not a member of the Lunsford family.

ABRAMS:  You know, Mark...

(BEGIN VIDEO CLIP)

SHERIFF JEFF DAWSY, CITRUS COUNTY, FLORIDA:  You’re going to ask me, I guess, as to how he became an issue or, you know, did Jessica have a relationship with him?  As I told you, I look at different categories—family, social, school, church.  I can tell you he was in one of those particular areas.

(END VIDEO CLIP)

POTTER:  Now, meanwhile, as you mentioned, during a recent polygraph of Jessica’s grandmother, Ruth Lunsford, investigators say a couple of her responses raised red flags, but they did not elaborate on that.  The sheriff today suggested that it could simply be a problem of stress on her part.  Today, Ruth Lunsford herself said that this was the first that she had heard of these test results, and she expressed frustration over what she described as all the gossip surrounding this case and said that she hoped the focus again could return to Jessica herself and the search.  Jessica’s father and grandfather, by the way, also took polygraph tests, but the sheriff said that their responses created no concern.

The bottom line, Dan, nearly three months—three weeks, rather, after this disappearance is that Jessica Lunsford is still missing.  The police have no idea how she disappeared, where she might be or her condition.  And they’re just hoping that this so-called person of interest, if they can find him, will shed some light.  Dan, back to you.

ABRAMS:  All right, Mark Potter, thanks a lot.

I don’t know why they’re talking about Grandma and the red flags if they’re not going to link up to anything.  Just throwing that out there seems not entirely necessary, unless they want us to do something with it.

All right, if you got any information about the disappearance of Jessica Lunsford, call the hotline number, please -- 1-352-726-1121.

All right.  Now to the latest in the Michael Jackson case.  Jackson’s accuser finished his testimony today, done.  The 15-year-old former cancer patient concluded solemnly saying about Jackson, quote, “I don’t really like him anymore.”  No big surprise.  I mean, the boy claims Jackson sexually molested him.

So the big question now, Will jurors find him credible?  Well, the boy stuck to his story that Jackson repeatedly served him alcohol and molested him at least twice.  Jackson attorney Tom Mesereau got the boy to concede that even after Jackson supposedly molested him, he was still saying nothing happened.  And there are some seeming contradictions in his account.

Joining us now, former prosecutor Paul Pfingst, attorney Michael Cardoza, who’s been attending the trial, Court TV anchor Jamie Floyd and former Santa Barbara sheriff Jim Thomas, who has also been there for much of the trial.

Jim, I’m going to start with you because you know that most of the people who have watched that boy’s testimony, watched the whole thing, are coming out of there—I’m not saying all—most of them are coming out of there, and they’re saying, Huh, prosecutor’s got some problems.

JIM THOMAS, FORMER SANTA BARBARA SHERIFF:  That was yesterday, Dan.  I don’t think that was today.  And I think Tom Sneddon, the DA, made some points today in his redirect of the boy, especially about some main issues yesterday.  Let me give you an example.

During the cross-examination by Tom Mesereau yesterday, and even of the examination of the accuser’s brother and sister, they continued to say, Did you discuss this case with anyone?  They said no.  Did you success it with your brother?  Did you discuss with your sister?  Did you discuss it with your mother?  Everybody said, no.  Even the press corps was sitting around saying, Well, we can’t believe that these people wouldn’t talk about this case.  Well, today, Tom Sneddon said, Did you discuss it with anybody?  He said no.  And he says, Why?  And he says, Because you told us not to.

And I think the jurors will be particularly interested in that because they, too, had been told not to discuss this case, and I think they can empathize with that.  That’s just one of a number of points that happened today.

ABRAMS:  Yes.  I don’t know, Michael Cardoza, I mean, look—look, I’ve read the transcripts from today.  Sure, the DA was able to clear up some points, particularly—and you and I even talked about this last night, that, you know, this wasn’t the smoking gun, the idea that he hadn’t told this dean at his school that he was molested when he was asked.  So he decided not to tell him.  No big deal.  But there are still a lot of possible problems with this boy’s testimony.

MICHAEL CARDOZA, DEFENSE ATTORNEY:  Oh, no question about it.  I mean, that—that’s certainly one.  Although, I’ll give you this, he did explain it today in a very rational fashion because he said, When I was asked by the principal, Dean Alpers (ph), about it, I’d be harassed by the kids at school.  They made fun of me, saying, There’s the kid that Michael Jackson raped.  He goes, I didn’t want to admit it then.  And I know the DA’s going to bring in an expert to say that’s what children do.  They don’t admit it until the right questioner begins to ask...

ABRAMS:  But see—but...

CARDOZA:  ... them the right questions.

ABRAMS:  But I don’t even think...

(CROSSTALK)

CARDOZA:  ... that’s what they’ll do.

ABRAMS:  But that’s not even that—that issue...

CARDOZA:  Which part isn’t important?

ABRAMS:  The fact that this kid said at one time that nothing happened.  OK.  So what?  Everyone made too big a deal about it yesterday.  I agree on that.

CARDOZA:  OK.  And I don’t disagree with you that...

ABRAMS:  Right.

CARDOZA:  You know, one of the things I thought that was interesting today, they ended—Mesereau ended on cross-examination asking the young man, Well, you realize you have until you’re 18 years old to bring a civil case.  Well, not really.  Well, you know that if you get a guilty here, that almost wins that civil case for you.  Well, I don’t know.  Certainly, Mesereau is sending a subliminal message to that jury, If you convict Jackson, that civil case is in the bag for them, and money will go to the mother in this case.  And I got to tell you, I think every juror dislikes that mother in this case.

ABRAMS:  Yes.  You know, but Jami, I’ve found to be the biggest problem—and I don’t know why everyone’s sort of skirting this issue every time I bring it up—are the possible contradictions or the inconsistencies in his account.  I mean, forget about—all right, so he didn’t tell right away about being molested.  OK.  I understand.  Not that big of a deal.  I understand that some of the issues have been resolved.  But there are still—Tom Mesereau set this boy up time and time again, saying, Are you sure that you were never caught stealing alcohol from Michael Jackson?  Are you sure that you didn’t do X, Y and Z?  And Mesereau is saying, I’m going to be able to prove it.

JAMI FLOYD, COURT TV ANCHOR:  Well, that’s exactly right.  And I think the reason people are skirting it, Dan, is because everybody’s trying to help Sneddon convict Michael Jackson.

The bottom line is the boy has a credibility problem, and the entire case hinges on credibility.  Now, we’re all at a disadvantage because—or many of us are—some of your guests, of course, are in that courtroom.  But obviously, we’re relying on interpretations of reporters and others who were in the courtroom.  So we’re operating in a little bit of a vacuum.  And if we had a camera in there, maybe it would help us.

But in the end, this is a case about credibility, Dan, and when it comes down to it, it’s reasonable doubt.  It’s not an equal balance here.  The burden is on the prosecution, and it’s the main witness...

ABRAMS:  Yes, yes, yes, yes.

FLOYD:  Yes, yes.  The main witness...

ABRAMS:  The burden’s on the prosecution.  We know.  We know.

FLOYD:  If the main witness has a credibility problem, then the prosecution has a credibility problem.

ABRAMS:  Right.  That’s right.

FLOYD:  Now, the prosecution here has the corroboration of the siblings, and that should help.  But we’re still waiting to hear from the mother, and she’s probably going to be more of a problem for the prosecution.

ABRAMS:  All right, we—look, Paul—Paul Pfingst, bottom line is that the majority of people coming out of that courtroom have said that—the prosecutors can’t be happy.  Doesn’t mean that they have—it doesn’t mean their case is dead, but—and it doesn’t mean—you know, some would say, as Jim Thomas says, Look, he thinks that the boy did fine.  But no one’s coming out and saying that this kid hit a home run for the prosecutors.

PAUL PFINGST, FORMER PROSECUTOR:  Well, that’s true.  And it is so rare for that to happen, for prosecutors to have a victim of this age who hits a home run...

ABRAMS:  Really?

PFINGST:  ... because you carry so much baggage and because, almost inevitably in these cases, there’s past denials.  It almost always happens.  And those past denials are a substance and a full impact of cross-examination.  And so when people had had this idea that prosecutors across this country day in and day out walk into cases with sexual molest victims who come and hit home runs, that’s not the way it works.  It’s the same thing on domestic violence cases.  There’s always baggage that comes with it.  And yet you get convictions.  The jurors are real good at sifting through what stuff is expected of a young man who may be sexually molested and what stuff is not.

ABRAMS:  Yes, but you’d have to concede—I got to wrap up it.  You have to concede this kid is carrying a little bit more baggage with him than an ordinary kid, I mean, apart from the denials.

PFINGST:  He’s carrying some—we haven’t seen some of the baggage, but we also haven’t seen the rulings that are still lurking out there about whether other evidence is going to come in of other molests.

ABRAMS:  I agree.  I agree.  I agree.  That’s...

FLOYD:  It’s not coming in.

ABRAMS:  That’s—it is going to come—none of this—come on!

CARDOZA:  No, it’s not coming in.

ABRAMS:  All right.  All right.  All right.

UNIDENTIFIED MALE:  Yes, it is.

ABRAMS:  Well, let me take a quick break here.  We’ll talk about that more in a minute.  Also coming up: The man accused of the Atlanta shooting rampage back in a courtroom, this time surrounded by big, beefy deputies.  And a guilty verdict for an accused corporate crook.  The “I didn’t know, I was just the CEO” defense did not work.  And Scott Peterson heads back to court to find out if he’s going to get the death penalty.  Tonight, Laci’s mother fires off an angry letter.

(COMMERCIAL BREAK)

(NEWS BREAK)

(BEGIN VIDEO CLIP)

MICHAEL JACKSON, ACCUSED OF CHILD SEXUAL MOLESTATION:  I’m feeling pretty good (UNINTELLIGIBLE)

(END VIDEO CLIP)

ABRAMS:  Michael Jackson, apparently still feeling the aftereffects of that back pain that almost landed him in the slammer last week.

We’re back talking about the Jackson case.  All right, look, we were talking a minute ago with my guests about possible inconsistencies.  And before we get to some of the broader issues, let me lay out for you some of the stuff the defense seems to be doing, and if they’re able to prove it, how bit a deal it’s going to be.  All right, let’s put it up.  All right.

Quote No. 1 -- and this is part of the cross-examination.  “Did you ever try to reach Jay Leno on the telephone?”  This is Tom Mesereau asking the boy, the accuser.  “Yes.”  “Did you dial the number?”  “Yes.”  “Was your mother with you?”  “No.”  “Was anybody in the background?”  “I’m pretty sure that I was in the hospital, so either it could have been my dad or maybe a nurse that would come in and do my vital signs or something.”  “Who answered the phone?”  “Answering machine.”  “Did you ever actually get Mr. Leno on the phone?”  “No.”  “So you deny you’ve ever spoken to him on the phone, right?”  “I’ve never spoken to Jay Leno.”

Well, in the opening statement, the defense said the following.  “Jay Leno told the Santa Barbara police something was wrong.  The conversation was recorded.  It was the accuser calling him, not mother.  But he said, I could hear the mother in the background, and the way he approached me, saying, I love you, I watch you late at note, suggested to him something was wrong.  Leno terminated the conversation fairly quickly.  He told the police they were looking for a mark.”

Before I get to the second one—you know, if they can prove that, Michael Cardoza, big deal?  Not big deal?

CARDOZA:  Oh, huge deal.  Come on!  If he lies about that, what’s it mean?  That mark didn’t work, so he goes after Michael Jackson.  I mean, you’ve got, what, a 14-year-old trapped in a 46-year-old body?  He’s the perfect mark!

ABRAMS:  And see, that’s what I’m—that’s what I’m talking about, Jim Thomas.  I mean, I’m talking about—let me play one more.  I’m going to show one more of these possible defense traps, if we can put it up.

Question:  “Never once did you taste any of this stuff”—talking about liquor—“when Michael wasn’t there?”  “No.”  “Never got caught taking alcohol out of the refrigerator in the kitchen, right?”  “Never took any alcohol out of the refrigerator in the kitchen.”  “To your knowledge, was your brother ever caught taking alcohol out of the refrigerator in the kitchen?”  “I was always with him during the day, so no, he didn’t.”

Well, this is the opening statement.  “They were caught breaking into the refrigerator in the kitchen, drinking alcohol.  They were caught grabbing alcohol from a cupboard.  There’s one witness who will tell you that Mr. Jackson ordered some alcohol for he and his guests.  The children stole it.  They were caught intoxicated.  They were caught with bottles.  Mr. Jackson was nowhere around.”

Jim Thomas, if they’re able to produce witnesses and—you know, look, Jay Leno is either going to say it happened or it didn’t happen, and also about this alcohol, you got to wonder, then, what’s going on, right?

THOMAS:  Yes, there’s going to be real tremendous credibility problems with that.  But we still have to wait and see if those witnesses are going to come forward and say what was said in the opening statement.  Frankly, I’m not sure how Jay Leno could say who he was talking to.  He was talking to someone.  We don’t know that it would be this boy.  So I’m looking forward to that testimony, should he actually be subpoenaed to court.

There’s no question that there could be some inconsistencies, but I think you also have to look at what you have was a 13-year-old boy and a little brother.  And if they were caught, is that something that they would fib about?

ABRAMS:  Wait, wait, wait, wait, wait.

THOMAS:  I don’t know.  I think at some point, you have to...

ABRAMS:  They can’t...

THOMAS:  ... you have to give a break.

ABRAMS:  No.  No.  Not now.  Not now.  They could have had a break back then.  But Paul Pfingst, they can’t get a break now, talking about it on the witness stand.  I mean, look, what—they’re—the kid’ll talk about being molested by Michael Jackson, but he won’t talk about being busted stealing some alcohol from the refrigerator?

PFINGST:  Listen, I have a 12-year-old and a 14-year-old.  I have two children, 12 and 14.  They’re old enough to know those types of things.  And if they’re not telling the truth about it, they’re lying.  And if they’re lying, that hurts them.  It’s just that simple.  If they’re caught in a lie like that, they’re old enough at 13 to know, remember, recall and repeat what happened.  And the time of the passing—you remember if you spoke Jay Leno.  He’s a celebrity.  And if you deny it, that’s going to hurt the young man.

ABRAMS:  All right, let me—let me go back to an issue we talked

about before the break, and that is what’s going to be, I think, the most

important decision that this judge is going to make.  Does the accusation -

·         do the accusations from 1993 -- another boy says, Michael Jackson molested me, settled for multi-million dollars.  Is he going to be able to testify?  And you know, I still think the judge is making it pretty clear, Look, you present a somewhat decent case here, and I’m going to bring that evidence in.  Jami, you don’t think that they’re going to—the judge is going to allow it in?

FLOYD:  I think this judge is a really by-the-books judge.  And the 1108 motion, though, California law, is pretty unique in allowing for this kind of prior bad act, even though there’s no prior conviction, to come in when you’re talking about alleged sexual offenses.  It has to be really, really precise.  The behavior has to be specifically similar to the behavior here.

ABRAMS:  Wait, wait, wait.

FLOYD:  Now, the proffer may show that...

ABRAMS:  It does not—it doesn’t not have to be the same sort of—and if you’ll excuse the term, diddling.

(LAUGHTER)

ABRAMS:  The bottom line is, it doesn’t need to be exactly the same sort of activity.  If you’re talking about molesting a child in some way, sexually molesting, the statute makes it pretty clear that you can bring it in, some of these past acts.  I was actually surprised the judge was even making it seeming like he might not let it in.

FLOYD:  Dan, I think the fact that the judge has reserved this shows that he might not let it in...

ABRAMS:  All right.

FLOYD:  ... and likely will not let it in, or else he would have allowed for the prosecution to...

ABRAMS:  He’s going to let it in.

FLOYD:  ... work with this...

ABRAMS:  He’s going to let it in.

FLOYD:  ... in the opening statement.

ABRAMS:  Mike—Mike...

FLOYD:  And you’re right, it is going to be...

ABRAMS:  He’s going to let it in.

FLOYD:  ... the biggest decision for the judge and for Michael Jackson.

ABRAMS:  Michael, you don’t think he’s going to let it in, either?

CARDOZA:  No, I don’t think he’s going to let it in.

ABRAMS:  Why?

CARDOZA:  And you’re right, Dan.  It doesn’t have to be on all fours with the past molestation, it just has to have happened.  I think even though the law doesn’t demand it, there’s no conviction there.  But more than that, it’s unfortunate in a certain way because if the district attorney’s case were really strong, then he’d let it in.  It’d sort of be like piling on.  But if it’s a weak case—remember, this judge has been reversed before for letting something similar in before.  I don’t think he’s going to do it in this one because he knows, weak case, let that in, the jury’s more likely to convict...

ABRAMS:  Yes, that’s true.

CARDOZA:  ... because he’s been accused of it before and not on the facts of this case.

ABRAMS:  Paul...

FLOYD:  And just to be clear, Dan...

ABRAMS:  Paul—Paul, I say...

FLOYD:  ... the prosecutor...

ABRAMS:  ... he’s going to let it in.

FLOYD:  The prosecutor really does have to show a significantly similar behavior.  It’s on the prosecution...

ABRAMS:  Yes, but this is...

FLOYD:  ... to show the judge...

ABRAMS:  This is similar enough.  I mean...

FLOYD:  ... that it should come in.

(CROSSTALK)

PFINGST:  Under California law, the prosecutor’s entitled to have this come in.  I think generally, most judges would allow it in.  I mean, the idea that’s floated that only in strong cases does it come in, but you don’t need it, and on less strong cases, it doesn’t come in because it’s less strong, judges aren’t supposed to decide which case is strong or not strong.  They’re supposed to decide whether it fits the evidence code.

CARDOZA:  Yes, but that’s the way it works.

PFINGST:  If it fits the evidence code, then it comes in.

ABRAMS:  Jim Thomas, bottom line, do you think Tom Sneddon is confident he’s going to get that in?

THOMAS:  Yes, I do, and I think we might see it this week, Dan.

ABRAMS:  Oh, really?

FLOYD:  Well, that’s a good one.

ABRAMS:  Wow.  Gee...

UNIDENTIFIED MALE:  You know, Dan...

(CROSSTALK)

ABRAMS:  ... such confidence.  Look at that.  Look at Jim’s face.  Look how serious he is.  All right.  Jim Thomas, thanks.  Everyone else is going to stick around.

Up next: The man accused in the Atlanta courthouse shooting back in court.  This time, there was, well, to say the least, heavy security.  And why, at least for now, is the woman he held hostage only getting a fraction of the promised reward money?  Plus: Scott Peterson back in court tomorrow to be sentenced, but the judge does not have to give him the death penalty recommended by the jury.  Coming up.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  We’re back.  Brian Nichols was back in court today, in the same courthouse where he alleged killed Judge Rowland Barnes, his court reporter and a sheriff’s deputy on Friday.  Today he’s being held on the rape charge that first brought him to that courtroom, until he can be indicted for actually four murders.  He’s accused of later killing a U.S.  Customs agent, as well.

This time, Nichols was in shackles and surrounded by no fewer than 19 uniformed officers.  Several more stood outside, a far cry from the lone five-foot 50-something female deputy he brutally attacked last week.  So I wonder, aren’t they saying something by suddenly putting guys who look like they could be football players all around him now?  Isn’t that a recognition that size matters when it comes to guarding a dangerous guy like this?

Our guests are still here.

FLOYD:  Yes.  Yes, no, I...

ABRAMS:  Jamie Floyd...

FLOYD:  I think that’s absolutely right.

ABRAMS:  Right?

FLOYD:  And the PC thing about, you know, Let’s not jump on women—look, there are some women who can take any guy.  And if you’re a big, strong woman or a little teeny-weeny guy, maybe it’s not a gender thing.  But I think size matters, and it obviously mattered in this case, as did the fact that she was wearing that weapon.  So maybe that’s something we should be thinking about.

ABRAMS:  Yes.  I mean, Paul, bottom line is, you know, we can talk—we can talk around this issue or we can talk about this issue.  It seems like a lot of people don’t want to say what they’re thinking about—bottom line is, there are a bunch of big, burly guys around him right now.  And maybe—look, maybe that’s just who was on duty that day.  Maybe, you know, this has nothing to do with anything.  But it sure seems to me—look—I mean, look how tall—I mean, this guy’s six-one, the defendant here.  And you’ve got, you know, some strong-looking fellows around him.

PFINGST:  The gender issue, I think, is a distraction.  The main issue in this case is that this defendant came to court the day before and was found to be armed.  And they took away the shifts.

There should have been at least three people around him at that point.  Male or female at that point, it wouldn’t matter.  The fact of the matter is, from time to time—and I’ve seen it and everybody on this panel has probably seen it—where a murder defendant is escort by one deputy, male or female.  Most murderers are not threats to escape. 

ABRAMS:  Right. 

(CROSSTALK)

PFINGST:  But, in this case, they had a warning and they didn’t follow it.

ABRAMS:  Right.  That’s right. 

But do you think that it should ever matter? 

PFINGST:  Of course.

(CROSSTALK)

ABRAMS:  Wait.  Wait.  Do you think it’s ever a deterrent to have bigger people, be it a big woman, be it a big man, whatever, a big person there, as opposed to someone who is 5 foot and 50-something?

PFINGST:  Absolutely.  Absolutely. 

(CROSSTALK)

ABRAMS:  So it does matter? 

PFINGST:  Of course it matters.  In this case, however, the critical factor is different, but, in other cases, yes, I would agree. 

A big, bad murderer, gang member, you don’t want some 5’5”, 110-pound person being the difference between him staying in jail and getting out of jail. 

ABRAMS:  All right. 

Michael Cardoza, I want you to listen to this piece of sound from the DA, who talked about this very issue. 

(BEGIN VIDEO CLIP)

PAUL HOWARD, FULTON COUNTY DISTRICT ATTORNEY:  I think that women are capable of doing anything that men are capable of doing.  And I don’t think it’s the weight.  I think it’s the heart, the training and ability.  I don’t think the weight has a whole lot to do with it. 

(END VIDEO CLIP)

SCARBOROUGH:  What do you think, Michael? 

CARDOZA:  Wrong.  No.  Like you said, size does matter.  This is not the time or a place to be politically correct. 

Put the big people in there.  And I say the big guys, not the big women.  Shackle the murderers.  Bring them to court.  If they’re in front of the jury, certainly, you can—and I’ve had them.  When I was a DA, they would be shackled to the floor.  Jury wouldn’t see it.

ABRAMS:  Yes. 

CARDOZA:  There are all sorts of ways to do it.  So, don’t give me this a woman is the same as a man.  And, physically, it’s just not true.  And it cost lives in this particular case.  And that’s awfully sad.  So, you can’t be P.C. here. 

ABRAMS:  All right, let me switch gears here and talk about the reward, all right?

This is Ashley Smith, the woman who literally had to spend seven hours with this guy, kidnapped by this guy, eventually got out to call the police.  Here is what she said last night in a press conference. 

(BEGIN VIDEO CLIP)

ASHLEY SMITH, FORMER HOSTAGE:  My role was really very small in the grand scheme of things.  The real heroes are the judicial and law enforcement officials who gave their lives and those who risked their lives to bring this to an end. 

(END VIDEO CLIP)

ABRAMS:  All right, well, she can say her role was very small, but the bottom line is, without her, none of this would have happened. 

Yet, why is it, Michael, that it’s only the governor of the state of Georgia, who had a piece of it, I think $10,000 of the $60,000 reward that was coming from the FBI and other Georgia state organizations—why are they the only ones saying, yes, we’re going to pay her the $10,000 and we’re still waiting to figure out about the other 50? 

CARDOZA:  You know, I really don’t get this, because what kind of message does it send to the community?  We’re looking for a murderer.  We’re willing to pay a reward.  And now the fact we’re even discussing it tells people out there, you know, we really don’t mean it, but we want to you turn people in.  That’s not the message they should send.  Pay her and figure it out later. 

(CROSSTALK)

ABRAMS:  Paul, you were the DA in San Diego.  How did you deal with these kinds of things? 

PFINGST:  Pay it.  Pay it.  I was also in New York.  We paid it.  The fact is, when you had that money set aside for anybody who provided information for leading to the arrest and conviction, you paid it. 

ABRAMS:  Listen to the promise. 

All right, I’m going to play—this is our next piece of sound.  It’s talking about the reward here.  This is the promise that was made, all right? 

(BEGIN VIDEO CLIP)

MYRON FREEMAN, FULTON COUNTY SHERIFF:  A $60,000 reward is being provided for information leading to the apprehension and arrest of murder suspect Brian Nichols. 

(END VIDEO CLIP)

ABRAMS:  I mean, Jami, do you think there’s any possibility they’re still trying to—I can’t even think about what they’d be investigating.  I mean, there’s no question.  I mean, even if she’s—I don’t know.  I’m trying to think of like the worst-case scenario, but she still made the call, right?  Unless she was in cahoots with him somehow, right? 

(CROSSTALK)

(LAUGHTER)

FLOYD:  There’s no excuse.  Show her the money.  She was in that situation.  Of course she wasn’t thinking about the money when she made the call, but she was in that situation we all envision.  What would I do if I found myself in a terrible situation like this?  Could I keep my cool?  Could I save my life and, indeed, perhaps the lives of other people?

She did it.  Show the woman the money and show the public you’re sincere.  I don’t get it.  What’s up with that?  That’s what I want to say to them.  Give her the money.  It’s bad public policy all around. 

ABRAMS:  Maybe they’re believing her humility when she says that her role was very small.  And, suddenly, law enforcement is believing that they could have done this somehow without her. 

FLOYD:  Well, they didn’t do it without her.

PFINGST:  Wait until she sues them, Dan.  Wait until she sues them for the money.  Then see what they think.

(LAUGHTER)

ABRAMS:  Yes.  Exactly. 

All right, you know, again, kudos to her.  I hope—I think everyone agrees, pay her, pay her, pay her, pay her.

OK, guests are going to stick around.  Up next, the jury decides the “I was just CEO” defense will not fly for former WorldCom CEO Bernie Ebbers.

And what is the judge going to do?  Scott Peterson.  The jury recommends death.  He doesn’t have to accept it.

Coming up. 

(COMMERCIAL BREAK)

ABRAMS:  The jury in the Scott Peterson trial recommended death.  The key word, recommended.  California judges have rejected that recommendation in the past.  Could it, might it happen here? 

Up next. 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  State of California vs. Scott Peterson, we the jury in the above entitled cause find the defendant, Scott Lee Peterson, guilty of the crime of murder of Laci Denise Peterson. 

(END VIDEO CLIP)

ABRAMS:  It’s not over.  Scott Peterson is set to be sentenced tomorrow for double murder of his wife Laci and their unborn son, Conner.  The jury recommended in December Peterson get the death penalty.  But the judge doesn’t have to accept that recommendation.  And it certainly could be an emotional day in court. 

Peterson attorney Mark Geragos also making a last-ditch effort to get his client a new trial, saying there was information they didn’t see and that jurors getting thrown off the case was improper.  Just to add to the tension, Laci’s mom is furious and has written a letter expressing that frustration about who gets to sit in the courtroom tomorrow. 

Quote: “There is something terribly wrong with a system that allows a courtroom to be packed with people, complete strangers to Laci, accept for us, who want to witness the sentencing of a man who murdered her.  Yet, the people who have known and loved Laci for most, if not all, of her life, the people who should and need to be in that courtroom, are shut out.”

I guess they didn’t get enough seats for the various friends and family members of Laci.  

All right, before we talk about that, I want to just go around the horn here and just find out if anyone on the panel thinks that this judge may reject the recommendation of the jury and impose a life sentence instead of the death penalty. 

Start with Jami. 

FLOYD:  No way.  That’s the jurisdiction I practiced in.  I’m a defense attorney, but, Dan, if there was any guy who deserved the death penalty, this is the guy.  The judge isn’t going to disagree with the jury in this case. 

ABRAMS:  Michael did a mock cross-examination of Scott Peterson. 

Michael, any hope for the defense that this judge is going to impose life? 

CARDOZA:  It’s over. 

I’ll tell you, most people think that the judge can simply overrule a jury.  You have got to look at it this way.  The judge sits as a one-man appellate court.  He looks to see if the jury violated the law and if there were enough facts to base their guilty verdict on.  And, in this case, there clearly is.  So, there’s no way Judge Delucchi is going to overturn.  There’s no way. 

ABRAMS:  Paul would tell you he had an experience to the contrary, right, Paul? 

PFINGST:  Well, it caught me by surprise.  And so I’m not as confident as everyone else there, because once it’s happened to you... 

(CROSSTALK)

ABRAMS:  Explain to us what happened to you. 

PFINGST:  I had a guy who was convicted.  He beat a guy to a pulp with a rock.  The guy was still living, took out—the defendant took out lighter fluid, spread it all over the victim, set the victim on fire and watched him burn to death, OK?  We convicted a guy.  Special circumstances of torture were found true, OK?

We get—the jury recommends death.  We go down there on the day that the sentence is to be announced and the judge said life without parole.  And this was a tough law-and-order judge.  This is not a weak judge who had a history of stuff.  He just couldn’t live with this case and this defendant and that sentence.

ABRAMS:  Bottom line, though, Paul, you would expect this judge is going to sentence Scott Peterson to death?

PFINGST:  I would expect it, but having been there before, I’m not 100 percent certain. 

ABRAMS:  All right, let me talk now about this new effort from the defense to effectively get Scott Peterson a new trial. 

Michael Cardoza...

CARDOZA:  Yes. 

ABRAMS:  Look, what do you think is the strongest argument that the defense has as to why Peterson should get a new trial? 

CARDOZA:  I think one of the strongest arguments is the experiment with the boat, where the jurors got into the boat, rocked it to test the stability of the boat. 

But keep in mind that Judge Delucchi was there at the time.  The prosecutors, the defense team was there.  So, I don’t see Judge Delucchi overturning it.  I see that as a ripe issue on appeal.  And Mr. Gwenasso (ph), the infamous juror No. 8...

ABRAMS:  Yes. 

CARDOZA:  He has been speaking out here in the Bay area.  And bottom line what he said was, you know, I wrote a letter about Justin Falconer.  And he got off the jury.  And I think Justin would have voted not guilty.  I got in a fight with the foreman, the doctor, lawyer, biologist, and he voluntary leaves the jury.

ABRAMS:  And, see, I think that’s—to me, that’s the only issue that the defense has any real shot here on, Jami.

CARDOZA:  Well, it’s a big one.

ABRAMS:  And that is the idea of—remember, two jurors dismissed during the deliberation process—let me just read from Mark Geragos’ motion: “Judge Delucchi never articulated legal cause for those jurors’ removal, but, instead, characterized each of them as a cancer which needed to be removed.  Metaphor is no substitute for valid legal grounds.”

Now, the judge obviously would say, look, there were valid reasons to dismiss each and every one of these jurors and, if you look at the record, it’s there.  But that’s the only issue I’d be a little bit nervous about, is this idea of, in the middle of the deliberation process, one of the jurors won’t deliberate, and so the person gets dismissed. 

FLOYD:  That’s exactly right. 

I mean, I think the new evidence claim is always made.  The death-qualified jury might be an issue.  But, you know, defense attorneys always ask for a new trial.  And half of these issues that they have raised, you see it’s almost a formula.  But I think you’re right.  I think the jury, especially in a long case like this, what happens with the jury becomes critical.  I think, if there’s going to be a new trial, though, it’s going to be after an appeal and obviously...

(CROSSTALK)

ABRAMS:  Oh, yes, yes, yes. 

(CROSSTALK)

ABRAMS:  This judge...

(CROSSTALK)

FLOYD:  This judge is not going to reverse himself on something that he already passed on. 

ABRAMS:  No, no, no, of course not. 

FLOYD:  Even given the colorful language about cancer. 

ABRAMS:  Yes. 

Now, Paul Pfingst, another thing they’re saying is, the defense sounds like they’re saying, well, we got some—in discovery, we didn’t catch something. 

And, Michael, is that an unfair characterization?  They are saying they essentially overlooked something that was handed over to them, right? 

CARDOZA:  Well, that’s not going to be—what does that mean?  You overlook something?  You were negligent?  So what?

ABRAMS:  Well, that’s my point.  Well, that’s my point. 

(CROSSTALK)

ABRAMS:  Is this business about this burglar is in the neighborhood who makes a comment about supposedly telling his friend or his brother...

(CROSSTALK)

CARDOZA:  Oh, that one.  What you’re talking about there, Dan, is, the district attorney just turned over to Geragos and team a tape recording of a guy that’s in prison talking to his brother saying there was a home invasion robbery and those guys are the guys that killed Laci Peterson. 

ABRAMS:  Yes.   

FLOYD:  Uh-uh.  That’s not going to sell.  Should the DAs have turned that over?  Absolutely. 

(CROSSTALK)

FLOYD:  Do they have a history of not doing it?  Certainly.  Might they be sanctioned?  Maybe.

(CROSSTALK)

ABRAMS:  Well, no.  Their position is that they turned over information about it and the defense never, you know...

(CROSSTALK)

FLOYD:  Well, if that’s true and they can prove that, then it makes their case even weaker. 

ABRAMS:  But here’s what Mark Geragos says.  “If the evidence were presented at a retrial, it is highly probable a different result would have occurred.  The recently uncovered evidence points to the conclusion that Laci was alive after Scott had left for the day.  It also presents a plausible explanation as to who could have murdered Laci Peterson.”

Paul Pfingst, I think that’s a little bit of an overstatement.  Highly probable a different result would have occurred? 

PFINGST:  Well, no one has ever accused Mark of doing a lot of understatement. 

(LAUGHTER)

PFINGST:  The fact of the matter in this case, though, is there are two grounds for appeal that concern me a little bit. 

The one on the replacing of the jurors, I’m not that concerned about it, because that would require that the conviction be reversed, not just the death part of it.  The other one that is just lying there in the weeds, though, is, Mark Geragos, when he stood up and said he wasn’t prepared to do the penalty phase of the case and a claim of ineffective assistance of counsel during the penalty phase, which would permit the 9th Circuit Court of Appeals to reverse the death portion of the case and maintain the conviction. 

ABRAMS:  But that is not going to happen. 

(CROSSTALK)

FLOYD:  As we all know, you can be sleeping at the defense table and there’s no ineffective assistance...

(CROSSTALK)

PFINGST:  Not in the 9th Circuit, you can’t. 

(LAUGHTER)

ABRAMS:  Yes.  All right, let me just follow up.  I just want to read one more line.  This is from Sharon Rocha’s letter: “I hope all the people who come for the show, the entertainment, enjoy themselves.  It’s such a shame that these people are given priority over Laci’s family and friends, the people who truly deserve to be in that courtroom.”

Paul Pfingst, you had to deal with a lot of victims’ family members in your career.  How do you deal with the idea that the family is saying, look, you know, we ought to get more space than that?

PFINGST:  No, I think it’s an unfair criticism.  I understand that. 

But the reality is, I think Laci Peterson has achieved throughout this exposure a sense in the public of everybody feeling what a wonderful woman she was and what a severe loss it is for the family.  And I think everything, every piece and particle of information about Laci Peterson has been positive and been a credit to her family.  And I think they ought to look at it that way. 

ABRAMS:  And, Jami, the bottom line is, courtrooms are open to the public, right? 

FLOYD:  They’re open to the public.  And it’s a shame that not everyone who wants to be there for Laci can be there.  But, in the end, it really is about public access.  And, unfortunately, that courtroom simply can’t hold everyone who wants to be in there. 

(CROSSTALK)

ABRAMS:  I got to wrap.  Ten seconds, Michael. 

CARDOZA:  They have a public lottery.  If all those people want to get in, flood it with all those people. 

ABRAMS:  Yes, but...

CARDOZA:  They best their chances.

(CROSSTALK)

CARDOZA:  No, I understand and my heart goes out to her.

(CROSSTALK)

ABRAMS:  Her position would be, we shouldn’t have to be in a lottery.

CARDOZA:  I understand.

ABRAMS:  Good panel.  Jami, Michael, Paul, good to see you all. 

Thanks a lot. 

CARDOZA:  Thank you, Dan.

PFINGST:  Bye, Dan. 

ABRAMS:  When we come back, Bernie Ebbers, one of the world’s most powerful CEOs, today he’s a convicted criminal.  Why the jury decided that the “I’m just a CEO” defense shouldn’t fly—up next. 

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  We are back.

After eight days of deliberation, former WorldCom CEO Bernie Ebbers convicted today on all nine counts, engineering a mass accounting fraud that sank WorldCom, the biggest bankruptcy in U.S. history.  Ebbers found guilty of one count of conspiracy, of one count of securities fraud, seven counts of filing false statements with securities regulators.

Ebbers now faces what could amount to life sentence, up to 85 years in prison, when he’s sentenced in June. 

Joining me now from Boston is Charlie Gasparino, senior writer for “Newsweek” magazine and author of “Blood on the Street.”

Charlie, you surprised by the verdict? 

CHARLES GASPARINO, “NEWSWEEK”:  Not at all. 

The Dumbo defense or the Sergeant Schultz defense, or whatever you want to call it, that you really didn’t know what was going on when you are the CEO, just doesn’t fly.  Most average people know, when you are the CEO, you at the top of the company.  You kind of have some idea of a massive fraud that is occurring right under your—you know, right under your eyes. 

(CROSSTALK)

GASPARINO:  So, they—this jury was very methodical.  They looked at all the evidence, obviously.  They took a long—they took, I believe, a week. 

ABRAMS:  Yes. 

GASPARINO:  And let’s face it.  They had a really good—the prosecution had a great witness in Scott Sullivan, who I likened all the time to Sammy “The Bull” Gravano, yes, a conflicted man, maybe a bad guy. 

ABRAMS:  Let’s talk about who he is. 

Scott Sullivan was the CFO of the company, who pled guilty and testified against Ebbers in the hope that he is going to get a break when it comes to sentencing. 

GASPARINO:  Right.  Absolutely. 

And that’s why he was—like, let’s face it.  He had a black mark on him.  And from the beginning, Reid Weingarten, who is Ebbers’ lawyer, and a very good lawyer at that, tried to poke holes in his credibility.  But, let’s face it.  If you sat through this thing, this trial—and I was there some of the time—Scott Sullivan really did have sort of details and evidence that you just really can’t make up.  And I think the jury believed him. 

ABRAMS:  Here’s what Reid Weingarten—you mentioned him a minute ago

·         the attorney for Bernie Ebbers said today. 

GASPARINO:  Right. 

(BEGIN VIDEO CLIP)

REID WEINGARTEN, ATTORNEY FOR BERNIE EBBERS:  Absolutely.  CEOs have responsibility, but it doesn’t mean they Have committed crimes when misdeeds were committed in their organizations that they didn’t know about.  The captain of the ship is responsible for the ship, but he’s not criminally responsible unless he acted with criminal intent, and I didn’t think Mr. Ebbers ever acted with criminal intent and still don’t today, despite the verdict. 

(END VIDEO CLIP)

SCARBOROUGH:  You know what the defense—the defense was, look, I was a guy.  I was just an ordinary guy. 

(CROSSTALK)

GASPARINO:  Right.  Just an ordinary CEO, ordinary billionaire. 

(CROSSTALK)

ABRAMS:  I was a milkman.  I was this.  I was that.

GASPARINO:  Right. 

ABRAMS:  And I worked my way up, but I have never taken an accounting class in my life.

GASPARINO:  Right. 

ABRAMS:  And that guy, Scott Sullivan, who pled guilty, it was his fault, not mine. 

GASPARINO:  I mean, listen, I like Reid Weingarten a lot, although I did run into him at a party about a week ago, and he did—and he looked like he—and he basically admitted this was a tough case to win.  The Dumbo defense just doesn’t work. 

ABRAMS:  Well...

GASPARINO:  Listen, you don’t get to be the CEO of a company and you are stupid.  That doesn’t mean you are like an expert at accounting or finance, because most people, most people that run companies aren’t necessarily experts at those things.

ABRAMS:  Right. 

GASPARINO:  But they know enough. 

(CROSSTALK)

GASPARINO:  And I don’t think a jury is going to believe that you knew nothing. 

ABRAMS:  Very quickly, Ebbers took the stand in this case. 

GASPARINO:  Right. 

ABRAMS:  That says to me that his lawyer thought that they were in trouble, because I think, if he thought the defense was going really well...

GASPARINO:  Oh, absolutely.

ABRAMS:  ... he probably wouldn’t have called Ebbers to the stand, right?

GASPARINO:  Right.  Right. 

I mean, listen, they had a lot of evidence and they had a great witness.  Scott Sullivan was a very good witness.  He was very calm and poised on the stand.  And he provided details.  And let me tell you something.  When you provide details—and let’s face it.  Under cross-examination, he didn’t poke many holes in his testimony.  He showed him that he wasn’t such a great guy at certain times, but, you know, listen, his testimony basically stood up. 

ABRAMS:  And, very quickly, what kind of sentence do we actually expect him to get?

(CROSSTALK)

ABRAMS:  They say up to 85, but that won’t—it’s not going to be 85. 

(CROSSTALK)

GASPARINO:  You know, I think there are going to—there’s going to be some leniency, but I think this guy is going to go to jail for at least five years.

ABRAMS:  Yes. 

GASPARINO:  And, by the way, that’s a long time for a 65-year-old man. 

ABRAMS:  Yes. 

All right, Charlie Gasparino, good to see you. 

GASPARINO:  Thanks for having me. 

ABRAMS:  We’ll take a break.  Be right back.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  State of California vs. Scott Peterson, we the jury in the above entitled cause find the defendant, Scott Lee Peterson, guilty of the crime of murder of Laci Denise Peterson. 

(END VIDEO CLIP)

ABRAMS:  Tomorrow night at this same time, another special edition of the program, the topic, Scott Peterson’s sentence.  We’ll cover the emotional pleas from both sides and his attorneys’ last-ditch effort to get a new trial for his client.  That’s tomorrow at 9:00 Eastern. 

And, of course, don’t forget, we will also be following the story on the regular edition of “THE ABRAMS REPORT” at 6:00 p.m. Eastern right here on MSNBC.

Up next, Joe Scarborough is talking about the book that may have saved Atlanta hostage Ashley Smith’s life.  “SCARBOROUGH COUNTRY” is up next. 

Thanks for watching.

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