updated 5/25/2005 2:16:44 PM ET 2005-05-25T18:16:44

Guest:  Daniel Horowitz, Susan Filan, William Fallon, Jake Goldenflame, Janel Moloney

DAN ABRAMS, HOST:  Coming up, the final defense witness takes the stand in the Michael Jackson case, but not before Jay Leno testifies. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  As Jackson‘s lawyers prepare to wrap the case, Leno tells jurors he spoke to the accuser on the phone and that he was suspicious of the boy.  And a former paralegal who had worked with the accuser‘s mother says the woman lied in a civil case about being beaten—big day for the defense. 

And new developments in the story about your tax dollars paying to provide Viagra to convicted sex offenders.  I‘ll ask the tough questions to a convicted sex offender who says there‘s no reason Medicaid shouldn‘t cover it. 

Plus, she was the star witness in the Scott Peterson trial.  Now Amber Frey‘s story is a made-for-TV movie.  We talk to the look-alike actress.  What did she think when she was first told you‘ll be playing Amber Frey? 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, it‘s hard to believe Michael Jackson‘s lawyers have called their final witness to the stand.  And it‘s not Michael Jackson.  The defense will rest tomorrow.  That‘s right, the defense will rest, but not before a big day of testimony which began with Jay Leno.  He makes jokes about Jackson almost every night. 

Today, he testified about his conversation with the accuser in this case.  We‘ll talk about that in a moment.  Probably the big story today is what I think is fair to say a knockout witness, the defense team delivered in the final round of the case.  A paralegal for an attorney who‘d represented the accuser‘s family in a lawsuit against department store J.C.  Penney.

Mary Elizabeth Holzer slammed the accuser‘s mother telling jurors the mother lied about bruises she said she received and falsely blamed it on J.C. Penney security guards instead of on her husband.  And that she threatened her life and her daughter‘s life on numerous occasions.  The accuser‘s mother had her children take acting lessons so she could coach them on what to say. 

And then at the end of the day, actor Chris Tucker began his testimony.  What a day.  NBC‘s Mike Taibbi is live in Santa Maria outside the courthouse.  All right, Mike, let‘s take this one by one.  First of all, it is now clear Michael Jackson will not testify, right? 

MIKE TAIBBI, NBC NEWS CORRESPONDENT:  I guess so.  Tom Mesereau, Jackson‘s chief attorney, said as his last words today that his last witness will be the last witness called today after Chris Tucker.  That was the last thing that was said in court today.  So one assumes that tomorrow morning he will wrap with Chris Tucker and that will...

ABRAMS:  All right.

TAIBBI:  ... be it for the defense case...

ABRAMS:  All right.  And we‘ll get to that in a minute about the whole business about Michael Jackson not taking the stand.  You know...

TAIBBI:  Right.

ABRAMS:  ... he couldn‘t take the stand.  But let‘s move—Jay Leno -

·         all right, so Jay Leno takes the stand.  Big promises from the defense team about what Jay Leno was going to say.  Did he deliver?

TAIBBI:  Well, we went back as we habitually do to the opening statement by Tom Mesereau and here‘s what he said.  He said, for example, the mother and the son, the accuser, called comedian Jay Leno and tried to get money from Mr. Leno.  Mr. Leno told the Santa Barbara police something was wrong.  They were looking for a mark.  It sounded scripted.

The mother was in the background and I terminated the call.  Well, two out of three of those contentions didn‘t pan out on the stand today.  Leno said specifically and I‘ll quote from his testimony today, I wasn‘t asked for any money nor did I send any.  I‘m sure of that because if they had, I would have said something. 

That doesn‘t mean there was nothing for the defense today.  They did get several repetitions by Leon that yes, he told the Santa Barbara police he thought the family was looking for money.  Yes, there was a woman‘s voice in the background as he spoke with the accuser.  He might have been the mother, though he‘s not sure.  And he did say several times that the comments made by the boy in his voice mail messages, his many voice mail messages, as many as six or seven, all sounded scripted. 

His quote.  “The voice mails were oh, I‘m a big fan, you‘re the greatest.”  They were overly effusive for a 10-year-old, Leno said.  It seemed a little bit unusual.  I‘m a comedian in my mid 50‘s.  I‘m not Batman—one of several Jay Leno lines in court today, which did get a laugh from the audience.

However, if I can go right into it, what you characterize as the bombshell witness today, Dan, it was in fact a paralegal, Mary Holzer, who testified as we‘d all said the she would for the last couple of months since we heard this story, that the mother had admitted to her that the whole J.C. Penney‘s case was a fraud...

ABRAMS:  All right, let‘s just take a step back. 

TAIBBI:  ... perjured herself.

ABRAMS:  We‘re talking about...

TAIBBI:  Sure...

ABRAMS:  We‘re talking about this J.C. Penney case where the mom, this family sues J.C. Penney saying that not only was she mistreated by the security guards but initially she‘d said she was sexually abused by the security guards as well. 

TAIBBI:  Right.

ABRAMS:  She had bruises on her body, which she claimed had come from the J.C. Penney security guards assaulting her.  Well lo and behold...

TAIBBI:  Right.

ABRAMS:  ... this paralegal takes the stand and says what? 

TAIBBI:  The paralegal says that the mother admitted to her that the bruises that she talked about, that were in photographs taken a week after the incident were actually the result of a beating by her ex-husband, her abusive ex-husband, not the Penney‘s guards.  And when Holzer says that she told the mother you can‘t do this, this is fraud.  She said look, my brother-in-law is in the Mexican Mafia running drugs from Mexico to Vegas. 

My ex-husband is in a rage.  We know where you live so your 9-year-old daughter and you, you‘d better watch your back.  And she repeats that threat, as you pointed out at the top of this, eight or nine times.  And then—and this is the key point of this witness.  Not necessarily and not mostly the admission—the alleged admission by the mother that she was engaged in fraud and perjury in the Penney‘s case, but the claim that she had her kids back up her phony story.  This is the exact quote from Holzer today.

“She, the mother, told me she enrolled the children in acting classes because she wanted them to become good actors so she could tell them what to say.  When the children went for their psychological evaluations for the Penney‘s case, the mother said I‘m pretty sure of the older son, the accuser, will get this story straight, but I‘m not sure the younger brother will remember what...

ABRAMS:  Wow, that is huge.  That is huge...

TAIBBI:  That is the contention of the defense case.  That then, as in the Jackson case...

ABRAMS:  Yes.

TAIBBI:  ... it was the mother who coached the kids to lie...

ABRAMS:  That is huge.

TAIBBI:  ... and follow up her lie with their own. 

ABRAMS:  Huge.  All right...

TAIBBI:  It was pretty powerful...

ABRAMS:  All right, Mike, stick around.  There is so much to talk about today.  We didn‘t even touch on Chris Tucker yet.  We‘ll get to that.  We‘re going to spend enough time on this.  MSNBC legal analyst, former Connecticut prosecutor Susan Filan, criminal defense attorney Daniel Horowitz, former sex crimes prosecutor Bill Fallon. 

All right, first let me just go around the horn here and ask if anyone is surprised that Michael Jackson is not testifying.  Daniel Horowitz, you were one of the people saying...

(CROSSTALK)

ABRAMS:  ... you were expecting him to testify.  I‘m telling you, you shouldn‘t be surprised. 

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  Well I think he should have testified except, Dan, that they closed the loop today with Mary Holzer and with her boss, attorney Anthony Rainier (ph), who said that she first invented the...

ABRAMS:  All right...

HOROWITZ:  ... 25 pinches...

(CROSSTALK)

HOROWITZ:  ... at deposition. 

ABRAMS:  We‘ll get to that in a minute...

HOROWITZ:  That closed the loop. 

ABRAMS:  The—come on, Daniel.  You‘re not saying that the reason that Michael Jackson isn‘t testifying is because the lawyer from the J.C.  Penney case testified.  I mean the bottom line is Michael Jackson wasn‘t going to testify...

HOROWITZ:  Well...

ABRAMS:  ... with or without this lawyer. 

HOROWITZ:  Except I wasn‘t confident that they would win yesterday.  I really wasn‘t.  Today was really a slam-dunk win, witness after witness.  And it changed the whole dynamics.  So maybe Michael couldn‘t testify because the...

ABRAMS:  He was never...

HOROWITZ:  ... ‘94 allegations, ‘93 would have come up.  But I still thought that he had to in order to win this case, but now I feel differently. 

ABRAMS:  Susan? 

SUSAN FILAN, MSNBC LEGAL ANALYST:  No, I‘m not surprised that he‘s not testifying.  It‘s a different case today than it‘s been all along.  I‘ve got to tell you, as I was listening to the paralegal‘s testimony about the accuser‘s mother, I was sick.  My stomach was turning.  To think, if that‘s so, that she lied in her last lawsuit and had her kids take acting lessons so they could learn how to lie in depositions, it was sickening.  All of a sudden I thought why aren‘t we prosecuting her? 

ABRAMS:  Susan...

FILAN:  ... changed today.

ABRAMS:  Susan, what happened to you?  Ever since we sent you out there, all you‘re saying is how bad the prosecution is doing.  It sounds like you‘re...

FILAN:  No, no...

ABRAMS:  ... pretty convinced there‘s not going to be a conviction here. 

FILAN:  No, no, no, my prediction is still the same...

ABRAMS:  Which is what?

FILAN:  ... hung jury on molestation, acquittal on conspiracy.  I think...

ABRAMS:  What about the alcohol charges? 

FILAN:  ... that the D.A. did a very—no.  They‘re not going to get him on that.  But I think that the D.A. did a really good job on cross of the paralegal because what he brought out was the timeframe.  He said that she, the accuser‘s mother, was beaten in the J.C. Penney lawsuit and was arrested right in the parking lot, taken straight to booking, straight to jail.  She gets out and goes straight to the emergency room. 

Her husband stays in booking, so there‘s no window for him to have gotten out, beaten her, gotten back to the kids because the kids went to the grandmother.  When he raised that timeline, the whole thing seemed to fall apart.  But then on redirect, Mesereau, Jackson‘s lead defense lawyer, says what about the booking photos?  No bruises in the booking photos, so it opens it all up...

ABRAMS:  (UNINTELLIGIBLE)

FILAN:  ... again, so you‘re scratching your head.  Who‘s telling the truth here?  But I‘ve got to tell you the feeling one got in that courtroom, if what the parallel said was true it stinks. 

ABRAMS:  Wow...

WILLIAM FALLON, FORMER SEX CRIMES PROSECUTOR:  She stinks...

ABRAMS:  Bill...

FALLON:  ... and one...

ABRAMS:  Bill Fallon, boy, when you get Susan, who‘s been yelling and screaming about the, you know, the weakness of the defense and every time, we send her out there and now she‘s like Raymone Bain, the spokesperson for Michael Jackson.

FALLON:  Dan, you know, your first question was, was Michael ever going to testify?  You know I agreed with you, absolutely not and I still don‘t know why Mesereau promised what he seemed to promise in his opening.  I just think that‘s bad form.  It‘s foolish form.  It‘s unnecessary form.  We know Michael has gone out before and gone on television and said how he is going to tell us his story.  He is going to testify. 

Wait, wait, wait, that‘s all baloney.  They‘re all backtracking now.  He should never have testified.  He couldn‘t testify because of the prior allegations.  They just made it seem that he was going to.  It‘s one thing for Jackson to do it.  It‘s bad for his attorney. 

Number two, today was, let‘s say, not a brilliant day for the prosecution because of this witness.  But you remember when this witness became known months ago, we had this conversation on this very show that she sounded like the downfall.  Yes, maybe she should lose her job as a paralegal for not reporting this.  Where is the outrage?  The outrage should be at her as well.

But what she had to tell us, we didn‘t know about the coaching of the children, which is, in fact, icing on the cake for the prosecution.  But what she had to say was always devastating against the mother and they‘re putting this in at the end right when they should.  Great move by Mesereau. 

(CROSSTALK)

FALLON:  And Jay Leno, he did not give them what they wanted. 

ABRAMS:  Right.

FALLON:  Many of the big witnesses did not really help the defense at all.  And the doctor didn‘t.  I don‘t know if we‘re going to get to it. 

ABRAMS:  All right.  Jay Leno, you know...

HOROWITZ:  But Leno helped.  Leno helped because he gave them the scripted actions...

ABRAMS:  But he didn‘t say it was a script...

(CROSSTALK)

FILAN:  No, no, no...

ABRAMS:  He didn‘t say that.

FILAN:  No, Leno didn‘t help. 

HOROWITZ:  Yes, but Dan he called his friend...

FILAN:  Leno actually helped the prosecution. 

HOROWITZ:  ... who was a comedian...

FILAN:  No, no, no, Leno helped the prosecution...

HOROWITZ:  ... who referred him and then she said it was scripted. 

(CROSSTALK)

FILAN:  No...

HOROWITZ:  What happened is that...

FILAN:  No, no, no...

ABRAMS:  All right.  Go ahead Susan...

FILAN:  Dan, Leno helped the prosecution because he really humanized this boy.  When he said I thought it sounded scripted I asked my friend, Louise Palanker, she said no, no, no he loves comedians, he really wants to be one.  He writes everything out before he speaks. 

ABRAMS:  Yes.

FILAN:  That‘s how intense he is about it and he‘s like that with everyone. 

ABRAMS:  Right.

FILAN:  All of a sudden you kind of fell in love with this young man and thought how cool is that...

FALLON:  Which we didn‘t before, Susan...

(CROSSTALK)

ABRAMS:  All right.  Wait, let‘s be clear...

(CROSSTALK)

ABRAMS:  Wait, wait, let‘s just be clear about Jay Leno.  Jay Leno—

Tom Mesereau did not deliver what he promised on Jay Leno.  Let‘s be...

FILAN:  Exactly.  Exactly.

ABRAMS:  ... entirely clear on this.  Here‘s what he said in his opening statement.  We‘re going to bring in witnesses to tell you about their behavior.  For example, the accuser and his mother called comedian Jay Leno and tried to get money from Mr. Leno.  Mr. Leno has told the Santa Barbara police something was wrong.  They were looking for a mark.  It sounded scripted.  The mother was in the background and I terminated the conversation.

Now, that may have been what he told the Santa Barbara police.  I‘m not saying that Mesereau didn‘t tell the truth about what he said to the Santa Barbara police.  But that‘s not what Jay Leno ended up saying on the witness stand, period...

(CROSSTALK)

HOROWITZ:  Yes, but he got what he needed.  Because Jay Leno, who everybody trusts and loves, sat there and said my radar went up.  I didn‘t trust this kid.  It sounded scripted...

FILAN:  No...

ABRAMS:  He didn‘t say that Daniel...

(CROSSTALK)

ABRAMS:  Daniel, you‘re adding...

FILAN:  Not at all. 

ABRAMS:  ... you‘re adding language in there.

(CROSSTALK)

ABRAMS:  He didn‘t say I didn‘t trust the kid. 

(CROSSTALK)

HOROWITZ:  He said...

ABRAMS:  He didn‘t say I didn‘t trust the kid. 

(CROSSTALK)

ABRAMS:  I have the quotes in front of me. 

HOROWITZ:  He said I was uncomfortable.  The kid (UNINTELLIGIBLE) was too complimentary.  His radar, his warning radar went up...

(CROSSTALK)

FALLON:  But they never asked for money. 

HOROWITZ:  ... as Michael Jackson‘s...

FILAN:  But...

HOROWITZ:  ... warning radar should have gone up.  It‘s a chain. 

FILAN:  Dan...

HOROWITZ:  This mother...

ABRAMS:  Let me...

HOROWITZ:  ... scripted the kid to go after Leno...

FILAN:  Dan...

HOROWITZ:  ... to go after Jackson...

ABRAMS:  All right, maybe, maybe...

(CROSSTALK)

ABRAMS:  All right.  Hang on.  Hang on...

(CROSSTALK)

ABRAMS:  ... let me take a quick break here...

FILAN:  Look, the best thing about Leno...

ABRAMS:  Susan, hang on one sec...

FILAN:  ... was it was like sitting in the “Tonight Show”.

ABRAMS:  Susan, hang on one sec.  We‘ll be right back.  We‘re going to talk more about Jay Leno.  We‘re going to talk about Chris Tucker, another celebrity who took the witness stand today.  And they‘re almost finished.  This is it.  I am going to make each and every one of my guests predict the outcome of this case at the end of the next segment, except for Mike Taibbi. 

And do you know who this murder defendant is?  Wow, what a look for court. 

Your e-mails abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  I respond at the end of the show.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Give you an idea how long this trial has been going on.  You know they originally said I was going to be a witness, I was still a child star...

(LAUGHTER)

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(NEWS BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  People say how do you get picked to be in it?  It is a long, drawn out process to get chosen.  Well, show how it was done.  Show the footage. 

(MUSIC)

(LAUGHTER)

(APPLAUSE)

UNIDENTIFIED MALE:  The votes have been counted and only one of you will get to testify...

(LAUGHTER)

UNIDENTIFIED MALE:  Chimp, you are going back to the ranch. 

(SOUNDS)

UNIDENTIFIED MALE:  That means, Jay, congratulations, you‘re going to Santa Maria. 

(APPLAUSE)

UNIDENTIFIED MALE:  (UNINTELLIGIBLE)

(END VIDEO CLIP)

ABRAMS:  Yes, well Jay Leno did testify today.  Didn‘t really give the defense everything that they thought they might get from him or they‘d hoped to get from him.  But another celebrity testified today in addition to Jay Leno.  That is Chris Tucker. 

Mike Taibbi is at the courthouse.  So Mike, Chris Tucker, the last witness for the defense.  Michael Jackson will not be testifying, it seems.  What has Tucker had to say so far?

TAIBBI:  Well, I think Tucker is sort of another brick in the wall kind of defense witness.  There have been a lot of these and even Leno, the stuff he did give the defense, fits that profile in the sense that Leno said that it sounded scripted.  It sounded off a little bit.

Chris Tucker so far, all he‘s really said is that really just upon meeting the mother of the accuser and his family, they were all over him.  The mother saying you‘re my brother.  You know, the brother of my children.  Sounded sort of like a Faye Dunaway character in “China Town.” I‘m your mother, I‘m your sister.  I‘m everything. 

But right away there‘s this familiar—the claim of familiar connection and the sad story, et cetera, so much so that Chris Tucker says he wired about 1,500 bucks at some point for what he was told or led to believe were the medical expenses that were uncovered by insurance.  So in a way, as I say, another brick in the wall type witness for the defense and he‘s not finished yet on his direct examination.

I don‘t really know what else he‘ll say beyond that.  He will talk about the car that the accuser‘s family allegedly—they did testify that he was allegedly going to give to them and they never get it...

ABRAMS:  Yes.

TAIBBI:  ... how insistent they were about that.  But who knows beyond that, how strong he‘ll be as a finishing witness.

ABRAMS:  I‘m going to tell you that—and I think this is worth restating—that this paralegal who testified today was the most important defense witness that we have heard so far in this case.  We can talk about Jay Leno...

(CROSSTALK)

ABRAMS:  We can talk about Chris Tucker.  Let me just read again—I just want to read again what she said.  She said she told me—this is talking about the mother, the accuser—she enrolled the children in acting classes because she wanted them to become good actors so she could tell them what to say.  When the children went to have their psychological evaluations for the Penney‘s case, the mother said I‘m pretty sure the accuser will get his story straight, but I‘m not sure the brother will remember what we practiced.

Now remember, the two most important prosecution witnesses in this case are the accuser and his brother.  The brother saying he witnessed molestation.  The accuser saying it happened to him.  And this is a witness saying mom was ready to prep them to testify in a civil case.  Let me go to eight here.

So she felt she was threatened.  She told me her husband‘s brother is in the Mexican Mafia and that she knows where I live.  That they would come and kill me and my 9-year-old daughter. 

Wow...

TAIBBI:  And Dan...

ABRAMS:  Go ahead.

TAIBBI:  Don‘t forget, Dan, last spring when we did the original story on this case, on the Penney‘s case, we got the depositions and the interviews by the psychiatrist of the two children, the deposition summaries, in which they backed up her later claim, a year and a half later that was testified to today of a sexual assault by a Penney‘s guard.  Five minutes of fondling in broad daylight, 25 different touches in that period of time, which her own lawyer didn‘t hear...

ABRAMS:  Yes.

TAIBBI:  ... until after he had 25 conversations with her over a year and a half period and the kids backed up that story in their depositions in the Penney‘s case.  So I mean that could be powerful testimony.  I do have to say that Susan said earlier in the day that it seemed like this woman, this witness, had a real animus for the mother of the accuser in this case and that did come through.  I think other people...

ABRAMS:  Well, I mean you‘d think she might have some animus towards her considering that she threatened her and said my husband‘s brother is in the Mexican Mafia.  She know where is I live and she‘ll come and kill me.  If someone said that to me I wouldn‘t be so thrilled with them either. 

But with that said...

FILAN:  But Dan...

ABRAMS:  With that said, Susan...

FILAN:  Dan...

ABRAMS:  Susan, let me just ask you a question as a prosecutor.  With all that said and we‘re talking what a great day it was for the defense here and this woman brings it all together.  But the bottom line is that this boy got up on the witness stand, said that these things happened to him.  You had other people talk about what had happened in other cases that was consistent with what this boy said and that‘s really going to be the ultimate question here. 

FILAN:  I think you‘re absolutely right.  Going back to the accuser‘s mother, though—the paralegal about the accuser‘s mother.  On cross, the D.A. made another great point, which was when‘s the last time you saw her.  She said not too long ago.  What was the situation?  She said, well, the accuser‘s mother came to me, she was beaten black and blue, her husband had done a number on her and I said let‘s go get you to a lawyer. 

Let‘s go get a temporary restraining order.  The D.A. said well, if this is the person that threatened to kill you and your kid, what in the world are you doing, now that the case is over and you‘ve got nothing else to do with her and you can tell her to go packing, you get in a car with her, drive her to a lawyer, go into the lawyer‘s office and help her try to get this temporary restraining order.  How frightened of her could you have actually been?  How real was that threat really?

And I thought that was great and that did also go to what Mike Taibbi is saying about the animus.  But yes Dan, you‘re right.  It still comes down to a credibility question. 

ABRAMS:  Bill...

FILAN:  Just because there are all these people with perjury and welfare fraud...

ABRAMS:  Right.

FILAN:  ... doesn‘t mean that the boy who says he was touched was not actually...

ABRAMS:  Bill Fallon...

FILAN:  They‘ve got to focus in on that.

ABRAMS:  ... if you were a betting man, a guessing man, would you think that there would be a conviction on any of the charges that Michael Jackson is facing? 

FALLON:  Dan, I predicted with you before that I thought maybe only the alcohol.  And I think that if we got the Jesus juice in and it ended up coming in through the stewardesses and I‘m not even sure they testified to that.  I thought there was going to be a hung jury on the sexual assault case.  I said this on your show numerous times.  I think the only hope for a guilty here was the 1990 victim who I think is more important than this victim, is more important than the brother and the only hope the prosecution has. 

ABRAMS:  Yes.

FALLON:  The conspiracy case, I just don‘t see that happening.  I‘m not convinced they‘re coming back not guilty.  But—well, actually, I am convinced they‘re going to come back not guilty against Jackson.  I think they might think there was a conspiracy but it just wasn‘t proven against Jackson. 

ABRAMS:  Right.  Yes, I don‘t think anyone—I‘m not going to even go through it because I know everyone is going to agree that the conspiracy charge, there won‘t be a conviction.  Who knows?  Maybe there will be a hung jury or something.

But Daniel Horowitz, bottom line, if you were the defense attorney today with your case wrapping up tomorrow, would you have a lot of confidence or would you still be worried, hey if there‘s a hung jury, they could retry my man.

HOROWITZ:  Well, Dan, I would have confidence in a victory.  Let me tell you, if it wasn‘t for the prior bad acts that came in, the prior molests that really were not challenged that heavily by Mesereau, this case would be a slam-dunk, two-hour deliberation.  The jury would come out the door and hug Michael Jackson.  Given the past conduct, I think that may taint this deliberation...

ABRAMS:  All right...

HOROWITZ:  ... but I still say not guilty...

FALLON:  Well they‘re older, so they could hug him and not worry about it...

ABRAMS:  Let me...

FALLON:  If they were younger jurors, they would have to worry. 

ABRAMS:  Let me tell you what I‘m going to have to do.  I‘m going to be going out there for the closing arguments.  All right.  This is not going to be a quick deliberation.  I mean I‘m basically packing up my life and going out there because I think we‘re going to be out there for a while as this jury deliberates, but I agree with everyone.  I don‘t expect to see guilty on any of the counts.  Mike, you‘re shaking—you disagree with me on this? 

TAIBBI:  I don‘t think it‘s necessarily going to be a long deliberation, Dan.  That‘s based on some things we know, some things we assume...

ABRAMS:  Well I‘m just guessing. 

TAIBBI:  ... don‘t make predictions...

ABRAMS:  Oh I make predictions all the time and I get them wrong a lot of the time...

(CROSSTALK)

ABRAMS:  ... too let‘s be quite clear. 

TAIBBI:  The only prediction I‘ll make is that within two weeks I‘ll be working out of my 30 Rock (ph) office and walking my dog at night...

ABRAMS:  Really?  Within two weeks?  All right...

TAIBBI:  ... in New York City.

ABRAMS:  You heard Mike Taibbi.  And Mike Taibbi predicted that Michael Jackson would testify, so...

(LAUGHTER)

ABRAMS:  ... I‘m just kidding Mike...

(CROSSTALK)

ABRAMS:  I know.  I know.  I know.  I‘m just kidding with Mike. 

Mike‘s been doing a great job out there.  Susan Filan...

TAIBBI:  All right.

ABRAMS:  ... Daniel Horowitz, Bill Fallon, and Mike thanks a lot. 

FALLON:  Take care.

(CROSSTALK)

ABRAMS:  All right.  Now some last-minute advice for Michael as he approaches the close of his case.  We‘ve seen him hobble into court in his pajamas, disheveled from a morning in the hospital.  And yes, he‘s had some interesting outfits.  Take this Cinco de Mayo special.  But Michael, please don‘t take any style advice from music producer Phil Spector.  Yes, this is really how Spector showed up in court for his murder trial.  Talk about distracting your jury.  That could have been our “OH PLEAs!” tonight.

Coming up, new developments in the story of Medicaid paying to give Viagra to convicted sex offenders.  State government, the federal authorities now scrambling to change the rules.  I‘ll ask the tough questions to a convicted sex offender who says there‘s no reason Medicare shouldn‘t cover it. 

And Amber Frey helped send Scott Peterson to prison; now there‘s a TV movie about it.  And there‘s an actress who looks a lot like Amber.  So does actress Janel Moloney think she really looks that much like Amber?  What does she think about this—playing Amber Frey?  I‘ll ask her.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, your tax dollars in action buying Viagra for sex offenders?  First the headlines.

(NEWS BREAK)

ABRAMS:  We‘re back.  States and the federal government fighting back after learning that hundreds, maybe thousands of convicted sex offenders have been using our tax dollars to buy drugs to boost sexual performance.  Drugs like Viagra.  Congress getting now involved with a new Senate bill that would bar tax dollars from reimbursing anyone who bought drugs for better sex. 

NBC‘s Tom Costello has the story. 

(BEGIN VIDEOTAPE)

TOM COSTELLO, NBC NEWS CORRESPONDENT (voice-over):  The news that tax dollars for Medicaid are paying for convicted rapists, child molesters and kidnappers to use Viagra prompted screaming headlines in the New York dailies and strong words from a New York senator. 

SEN. CHARLES SCHUMER (D), NEW YORK:  Here‘s the bottom line—giving a convicted sex offender Viagra is like giving a convicted murderer an assault rifle when he gets out of jail. 

COSTELLO:  It was a New York audit that discovered nearly 200 of the most violent sex offenders alone had received Viagra from Medicaid over a five-year period. 

(on camera):  Until the New York state audit, no one thought to check whether convicted sex offenders out of prison and on Medicaid would also be on Viagra. 

(voice-over):  What no one knows is how many are out there.  What is known is that in 2003 alone, 30,000 violent sex offenders nationwide were released from prison. 

DR. ROBIN LUDWIG, PSYCHOTHERAPIST:  We are making them more dangerous if we reimburse through Medicaid Viagra, a drug that they should in no way get.  It‘s like giving a heroin addict heroin.  It‘s like passing out alcohol at an A.A. meeting. 

JAKE GOLDENFLAME, CONVICTED SEX OFFENDER:  Level three offenders are people with a background like mine, they‘re very—there‘s a very dangerous background there. 

COSTELLO:  Convicted sex offender Jake Goldenflame calls it an inner battle against sexual terrorism, but he says once an offender has served his time...

GOLDENFLAME:  I think that anybody who has passed probation and parole and completed it satisfactorily and has a life in the community again and remains crime free should have the same right as anybody else to get it when needed or upon a doctor‘s recommendation. 

COSTELLO:  Viagra has been approved for Medicaid since 1998, available to anyone with a prescription.  Under pressure, the government said Monday, states can deny Viagra to sex offenders.  But identifying them and navigating through patient confidentiality rules means the issue is far from resolved. 

Tom Costello, NBC News, New York. 

(END VIDEOTAPE)

ABRAMS:  New York Governor George Pataki has ordered his parole officers to—quote—“prohibit all convicted sexual offenders from getting Viagra no matter who pays for it and other states are enacting, too.  In Texas the House voted to keep sex offenders from getting sex-enhancing drugs through Medicaid.  State Senate may follow up.

Jake Goldenflame is the convicted sex offender you just heard in that piece say that anyone who‘s finished their time has a right to Viagra.  Now look Jake, you‘ve been a pretty straight shooter on this stuff.  You keep telling us that the community needs to watch these people like you, that...

GOLDENFLAME:  Yes.

ABRAMS:  ... we all need to keep an eye on them and that the urge never goes away and you‘re saying that it‘s OK that state tax dollars are going to pay for Viagra? 

GOLDENFLAME:  Well again, I want to make this very clear, if I may.  When a person first comes back from prison, I think they need Viagra about as much as a recovering heroin addict needs another fix.  I think it‘s a bad idea.  I think that the governor—Governor Pataki‘s decision to have his parolees make sure that while they‘re on parole these men aren‘t given Medicaid reimbursement for this.  This is a very wise decision to make...

ABRAMS:  Right.

GOLDENFLAME:  I‘m looking beyond that.  I‘m saying after the man has done his three to five years of supervision in the community, after his imprisonment and he‘s totally free, he‘s suppose to have the same rights as anybody else...

ABRAMS:  Not necessarily.  No, but Jake, as you know...

GOLDENFLAME:  Yes.

ABRAMS:  ... there can be additional restrictions in place.  You know we don‘t let convicted felons vote in a lot of places. 

GOLDENFLAME:  Yes.  Yes. 

ABRAMS:  And the bottom line is you‘re the guy...

GOLDENFLAME:  Yes.

ABRAMS:  ... who keeps telling us...

GOLDENFLAME:  Yes.

ABRAMS:  ... that we need to be watching people like you...

GOLDENFLAME:  Sure.

ABRAMS:  ... and we need to prevent people like you from the temptation. 

GOLDENFLAME:  Right.

ABRAMS:  And you‘re saying it‘s OK for Medicaid to pay for Viagra?

GOLDENFLAME:  Well, here‘s what I‘m looking at.  Last week, the nation was watching a man who is protesting the decision of Six Flags to have the statement on the back of their pass saying we‘re not going to admit registered sex offenders to our park and the man was a fellow who had been a sex offender in his youth as a juvenile, had 20 years, re-offense free, had gotten married, raised a family.  I look at a man like that with a track record like that and if in his later years, his doctor feels that he needs to have Viagra, I say why shouldn‘t he have it?  He‘s led a blameless life...

ABRAMS:  Jake, because you know, we have to decide on a systemic basis.  I‘m not going to take...

GOLDENFLAME:  Yes.

ABRAMS:  ... one case and tell you we‘re going to make law based on that case. 

(CROSSTALK)

ABRAMS:  You‘re one who keeps telling us...

GOLDENFLAME:  Yes.

ABRAMS:  ... that on the whole...

GOLDENFLAME:  Yes.

ABRAMS:  ... that these sex offenders, particularly child sex offenders like yourself...

GOLDENFLAME:  Right.

ABRAMS:  ... who continue to be attracted to children...

GOLDENFLAME:  Yes.

ABRAMS:  ... as you‘ve admitted that you are...

GOLDENFLAME:  Yes.

ABRAMS:  ... the idea that the taxpayers should be paying for Viagra...

GOLDENFLAME:  OK.

ABRAMS:  ... at any point.  Come on.

GOLDENFLAME:  Well remember this.  Viagra does not increase the sexual urge.  What Viagra does is allow you to have the ability to perform...

ABRAMS:  And that distinction is relevant why?

GOLDENFLAME:  Well, if Viagra was an aphrodisiac that actually heated up your sexual desire...

ABRAMS:  Oh come on...

GOLDENFLAME:  ... then I‘d say never under any circumstances should any sex offender be given it. 

(CROSSTALK)

GOLDENFLAME:  It doesn‘t increase the urge.  It allows you to perform in response to the urge...

ABRAMS:  Yes.

GOLDENFLAME:  ... and if you‘ve done your time, if you‘ve been supervised adequately in the community...

ABRAMS:  Well...

GOLDENFLAME:  ... you‘ve got a good track record and you‘re married, if you‘re married, why should you not have the same...

ABRAMS:  For the same reason you told me that we need to have the community watching these people...

GOLDENFLAME:  OK.

ABRAMS:  It‘s the same concept...

GOLDENFLAME:  Yes.  Yes.

ABRAMS:  ... exactly.  All right, I‘ve got to wrap it up, final 10 seconds.

GOLDENFLAME:  OK.  Remember this, if we start giving people who are convicted of sex offenses too many fewer rights than the rest of us, we start going down a slippery slope...

ABRAMS:  Yes...

GOLDENFLAME:  ... under our constitutional system.

ABRAMS:  ... I don‘t know if the right to Viagra is a constitutional right that we need to really be particularly concerned about.  But Jake Goldenflame, thank you.

GOLDENFLAME:  OK.

ABRAMS:  Coming up, there‘s a new miniseries about the Scott Peterson case, but from the perspective of Amber Frey.  Actress Janel Moloney joins us to talk about what it‘s like to play Amber Frey.  I‘ll ask whether she knew how much she actually looks like Amber.

Plus, the defense expected to rest tomorrow in the Michael Jackson case.  We will not see Michael Jackson on the stand.  Is it so wrong that I really wished that he would testify?  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Up next, we talk to the star who‘s playing Amber Frey in a new movie about her life, coming up.

(COMMERCIAL BREAK)

(NEWS BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  You know he was arrested yesterday, right?

UNIDENTIFIED FEMALE:  Of course I know.  The whole world knows.  It started right away.

UNIDENTIFIED MALE:  What started?

UNIDENTIFIED FEMALE:  The calls, every TV person, magazine, newspaper.  Everyone wants to know what Amber Frey has to say about the arrest of Scott Peterson.  Well guess what?  She doesn‘t want to say a damn thing.

(END VIDEO CLIP)

ABRAMS:  Amber Frey, convicted killer Scott Peterson‘s other woman, at least one of them.  She first met Peterson November 20, 2002, a little over a month before his wife Laci went missing.  As far as Amber knew, Peterson was single.  But she had questions and then when she saw him on the news talking about his missing wife, well she called police and told them her story. 

She became a huge part of the investigation, recording hours and hours of phone conversations with Peterson, catching him in all sorts of lies.  Since Peterson‘s murder conviction and the death penalty, Frey wrote a book, “Amber Frey: Witness for the Prosecution”.  CBS turned it into a movie.  It‘s going to air tomorrow night.  Earlier today I spoke to Janel Moloney, the actress playing Amber Frey.  First asked her about her reaction when she was told she‘d be auditioning for the part.

(BEGIN VIDEOTAPE)

JANEL MOLONEY, “AMBER FREY: WITNESS FOR THE PROSECUTION”:  Well, I actually was just told that—I would just asked to do it.  So I didn‘t even audition or anything like that.  It was just—they offered me the role.

ABRAMS:  What did you think?  I mean you‘re thinking—you knew who Amber Frey was.  I mean...

MOLONEY:  Yes...

ABRAMS:  ... I‘m sure you‘d at least seen enough of the coverage to say all right, I know who she is.  Did you—any reservations? 

MOLONEY:  I thought it was kind of hilarious at first.  I just thought it was a hoot and I didn‘t expect that I would want to do it.  Yes, I had a lot of reservations and many concerns and most of them are kind of obvious, the concerns.  But they were one by one, I went through them and sort of proved to myself that it was a good decision.  Mostly creatively because it was a big role and a very different kind of role than what I had been doing for so long. 

ABRAMS:  Right.

MOLONEY:  And it was—I was in the mood to take a little bit of a risk. 

ABRAMS:  Had people told you before then, anyone ever say you look like Amber Frey?

MOLONEY:  You know actually, no one ever did and I don‘t know why, but no one ever did. 

ABRAMS:  But I assume people have said that a lot now because you know when I look at you I think, you know, you look a resemblance at least to Amber Frey. 

MOLONEY:  I think what happened was the cast—I think that having me do the movie was sort of super fun for a lot of people because I don‘t think anybody would have originally thought of it but then when they said I was doing it there was like a lot of response, people saying oh, my gosh, perfect.  You know, they were very excited by it.

ABRAMS:  You know I‘ve always felt sorry for Amber Frey and I get a lot of criticism on my show for saying that.  People saying why do I feel sorry for her, et cetera, but the bottom line is I do.  I think she got totally duped by this guy and put into a situation that she never asked for.  You got to meet her during the filming...

MOLONEY:  Yes.

ABRAMS:  ... of the movie.  What did you make of that? 

MOLONEY:  Yes.  You know, it‘s funny.  I don‘t—I think because I came into it, my introduction to the story was really as an actress playing her.  So obviously I‘m not going to come from a place of judgment and I wanted to find out what made her get involve and what made her do the things that she did and say the things that she said and ask for what—the certain things she wanted and then ultimately you know be pretty courageous.  I don‘t really think there‘s much to judge.  I don‘t really think she did anything that was that terrible.  I mean...

ABRAMS:  I don‘t think so either but people do. 

MOLONEY:  You know if writing a book...

ABRAMS:  We get letters all the time.  People saying...

MOLONEY:  Yes.

ABRAMS:  ... how could she let her kid spend time with him so quickly and she jumped into this...

MOLONEY:  Right.

ABRAMS:  ... and what was she doing sleeping with him and...

MOLONEY:  Well...

ABRAMS:  ... et cetera, et cetera...

MOLONEY:  ... I‘d like all the women...

ABRAMS:  ... saying you know it‘s not her fault. 

MOLONEY:  Well I‘d like all the women that slept with someone early on in their relationship to, like, you know come out.  I think there‘ll be a lot of them.  So I don‘t really—I think it‘s dumb to judge her.  You know she‘s an easy target because of sort of the way she looks and the fact that she had those pictures.  And you know there was a lot of stuff that admittedly, I think she knows were mistakes and—but she actually was doing the right thing and...

ABRAMS:  Yes.

MOLONEY:  ... and I don‘t think she did anything that horrible to be honest...

ABRAMS:  Did she say anything to you when you met with her that was sort of like the one thing that she hopes in this portrayal that comes across? 

MOLONEY:  You know, I think that one thing that she has done that has really impressed me is that she understands that this is all—you know, she‘s very sensitive to the fact that this is you know a horrible, horrible situation and she doesn‘t want to be insensitive to that.  So I think she keeps whatever her hopes are for the movie, I think she kind of keeps them private.  She doesn‘t want to trivialize anything by saying (UNINTELLIGIBLE) I hope that people think I‘m, you know, sweet or a good girl or something.

ABRAMS:  As an actress, I mean you‘re an actress playing a role here and yet you‘re doing these interviews where I‘m sure people are asking you questions about the trial all the time and almost acting...

MOLONEY:  Yes.

ABRAMS:  ... as if you are Amber Frey...

MOLONEY:  Yes.  Yes.

ABRAMS:  ... is that a little bit odd for you because...

MOLONEY:  It‘s a little odd...

ABRAMS:  ... of who this person is? 

MOLONEY:  Well it‘s a little odd and I just tell people listen, I‘m just an actress.  You know, yes, it‘s horrible, horrible, horrible what happened and I have no opinion about Scott Peterson, no different than any other person in America.  And I don‘t even really have a very formed opinion of Amber.  I just played it as I would any episode of “West Wing” or any movie I do in the future.

ABRAMS:  Yes.

MOLONEY:  I try to come from a creative standpoint and just go through a creative process. 

ABRAMS:  Fair enough.  You leave that to loud mouths like me to have...

(CROSSTALK)

ABRAMS:  ... opinions about Scott Peterson and Amber Frey and you know...

MOLONEY:  Yes.

ABRAMS:  ... we appreciate that because if you start having too many opinions you‘re going to put me out of business. 

MOLONEY:  OK.  I won‘t.  I promise. 

ABRAMS:  Janel Moloney, thanks a lot for coming on the show. 

Appreciate it.

MOLONEY:  Thank you. 

(END VIDEOTAPE)

ABRAMS:  Coming up, the defense in the Michael Jackson case set to rest tomorrow.  My “Closing Argument”—why I would have liked the final witness to be Michael Jackson.  I‘ll tell you why I would have liked to have seen it.  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—does it make me a self-hating lawyer

that sometimes I secretly wish defendants would have to testify in their

own defense?  Don‘t get me wrong.  Fifth Amendment, invaluable

constitutional right, protects someone accused of a crime from becoming a -

·         quote—“witness against himself.”  So sacred, prosecutors rightly can‘t even mention a defendant‘s refusal to take the stand. 

Let me take off my lawyer hat for a second and say that I really would have really liked to have seen Michael Jackson testify.  We found out today it‘s not going to happen.  But is it so wrong for me to want to see him on the stand?  Forget all the legal reasoning, whether the prosecution has proved its case, whether the defense has established reasonable doubt, I just want to hear Michael explain why he allowed so many boys over to his house for sleepovers.  None of Jackson‘s producers or spin doctors involved, no British journalists tossing softballs Michael‘s way.  Just M.J. uncensored live and on stage, taking the tough questions. 

Has he really never shared a glass of Jesus juice with the accuser or his brother?  Are all these witnesses lying about his conduct with the ‘93 accuser?  Why all the pornography around the house when kids are there all the time?  Come on.  You didn‘t really settle all those multimillion-dollar cases back in the ‘90‘s for the record companies.  I felt the same way about O.J. and Scott Peterson. 

I wanted to hear O.J. explain the inconsistencies in his story.  He claimed he so badly wanted to testify.  Well, when he finally got the chance in the civil case, it reminded me why O.J.‘s lawyers never could have put him on.  Sure did answer a lot of my questions.  And who didn‘t want to hear smooth talker Scott Peterson explain the curious timing of his promise to Amber Frey, that very soon he‘d be able to spend more time with her.  And why did he tell some he went to play golf the day his wife disappeared while telling others he went fishing? 

As in every high profile trial, defense attorneys like Tom Mesereau initially claim their clients want to take stand and they haven‘t decided.  But those of us who watch these cases know it‘s rarely going to happen.  And with Michael Jackson, well the risk was just too high.  He might have wiggled his fingers on the head like did he back in that civil trial in 2002. 

Look, as a lawyer I get it.  But as someone who cares about what really happened, more than even the legal maneuvering, boy, I would liked to have seen it. 

Coming up, what not to do if you want to make some money in real estate unless you want your new home to be a prison cell.  Our “OH PLEAs!” is coming up.

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night in my “Closing Argument”, the White House press secretary‘s recent criticism of the use of anonymous sources by the media.  I agreed it was a credibility problem, but asked what about the anonymous sources regularly cited by the government?  And then why do government officials so often demand that their names not be used? 

Michael Matthews in San Jose, California, “The big difference between the government and the media is that the government is concerned with our nation‘s security.  The media is not.”

Look, no question, the government is entrusted with the nation‘s security and the media is not, but isn‘t that an argument for why they should be even more careful than the media about relying on anonymous sources? 

John Gross in Canada, “Your analogy implying the hypocrisy of U.S.  authorities using anonymous sources themselves while criticizing the media for doing the same falls flat on its face.  The FBI, for example, will listen to whatever an anonymous source has to say regarding any particular group or individual, but they will not arrest anyone before investigating and finding evidence.”

Well John, they will open investigations by using anonymous sources and the IRS does it all the time.  People are arrested, though, based on the accounts of individuals who will not or cannot be identified.  It‘s necessary sometimes, but it‘s done. 

Justin in Florida, “Newsweek” made a mistake, but the government has made many more, which proved to be much worse.  It‘s time people in the government started becoming accountable for their actions.”

Finally last night when describing the 68-year-old Pennsylvania man charged yesterday with attempting to build a bomb and sell it to an al Qaeda affiliate, I asked if this guy was some—quote—“whack-ado.”

Mary Adair from Goodland, Kansas asks, “You used a word that I‘ve never heard of, whack-ado.  I got an idea of what you meant, but I‘m real curious where you picked that up from.  Is that New York slang or am I just too far out West to have heard of that?”

Mary, now you knew what I was saying, right?  Whack-ado?  But I guess it is kind of one of those dorky terms that I tend to use.  Don‘t really know where I heard it first.  It just sort of shows you that I‘m kind of a dork. 

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

“OH PLEAs!”—what‘s the best way to make a profit?  Renting an apartment?  How about rent out someone else‘s home?  One man in Oslo, Norway had it all figured out.  He broke into an apartment of people who were traveling, took photographs, posted the ad on an Internet real estate site.  The 29-year-old crook listed it at a bargain asking price of 35 percent less than the going rate. 

No surprise, at that price, there were many eager renters.  Over 60 people raced to the con showing.  Eleven went so far as paying a deposit of over $2,000 to secure the too good to be true apartment, handing over 25,000 in all.  The real estate swindler faces fraud charges after the money was found in his bank account.  I don‘t know what to say about that guy. 

That does it for us tonight.  Coming up, “HARDBALL” with Chris Matthews.  Thanks for watching.  See you tomorrow as the defense rests in the Michael Jackson case.  You know where to come, the program about justice.

END

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