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'The Abrams Report' for December 29

Read the transcript to the Thursday show

Guest: Lynn Martinstein, Bill Fallon, Jonna Spilbor, Mickey Sherman, Vito

Colucci, Norm Hile, Paul Pfingst, Charles Gasparino

LISA DANIELS, HOST:  Coming up, Royal Caribbean Cruise Lines' response to charges it mishandled the case of missing honeymooner George Smith.

He disappeared from his honeymoon cruise.  His family says he was murdered.  His wife says she was mistreated by the cruise line.  Now, in an exclusive interview, Royal Caribbean gives its side of the story.

And Scott Peterson hires two new high profile attorneys for his appeal.  Do they know something they think will get him off death row?

Plus, from Natalee Holloway to Olivia Newton John's missing boyfriend and Daniel Horowitz's murdered wife, Pamela Vitale, we investigate the year's open cases.  The program about justice starts right now.  

Hi, everyone.  I'm Lisa Daniels.  Dan is off today.

First up on the docket, as 2005 comes to an end, we're looking at some of the legal stories making headlines this year, from convicted sex offenders turned murderers to the big cases that made it through the courts this year.  And today, we're focusing on some of the unsolved mysteries.

We start with new details on missing honeymooner, George Smith. 

You'll remember he disappeared from a Royal Caribbean cruise back in July. 

His family now saying he was murdered.

And now, in an exclusive interview, Royal Caribbean spokesperson, Lynn Martinstein, is here to answer some questions.  But before we talk with her, remember this.

Early this month, George Smith's wife, Jennifer, spoke exclusively to MSNBC's Joe Scarborough, telling him how she found out that her husband was missing.


JENNIFER HAGEL SMITH:  It was three men dressed in white uniform from Royal Caribbean.  They basically approached me and said, you know, your husband's gone over board and, you know, they told me about the blood on the awning. 

JOE SCARBOROUGH, MSNBC ANCHOR:  Did they tell you he was dead?

SMITH:  They said he'd gone overboard and they found blood.  Actually, I had found out from them that they believed he went over in Greek waters. 


DANIELS:  And joining me now, Lynn Martinstein from Royal Caribbean.

And, Lynn, you just heard Jennifer talk about how she found out that her husband was missing.  That's according to her.  Is that the way it actually happened? 


It didn't happen exactly that way.  We first found Jennifer Hagel-Smith in the spa.  We had been paging, we had seen what appeared to be blood stains at 8:30.  We had determined it was the Smith's cabin about 20 minutes later and we started paging both the Smiths.  We couldn't find either.  At 10:00, someone, one of our spa managers, called the desk and said, “One of the people you're paging, Mrs. Jennifer Hagel-Smith, is in the spa right now.

So we sent three uniformed officers to the spa.  We waited while Jennifer Hagel-Smith got dressed, and she came out and talked to our three officers.

DANIELS:  Now...

MARTINSTEIN:  We told her—we were delighted to find her.  And we told her, “We're looking for your husband.  Do you know where he is?  Can you help us find him?”  And she was not aware that he was missing and she could not give us—she didn't know where he was.  She wasn't aware he was missing.

So we did not say, at that point, that he had gone over board.  After Jennifer left with our three officers and went to the guest relations manager's office, it was there—we were still paging George.  We were searching the ship.  Having found Jennifer, we were still looking for George.

It was at that point that the staff captain very gently said—because this is horrible news.  There's no good way you tell someone that their husband is missing.  He told her that there was physical evidence that suggested that George Smith might have gone over board.  They weren't sure.  They were continuing their search.  They were continuing the pages but the possibility was there.  There was physical evidence.  He never mentioned blood.

She was upset.  We certainly didn't want to upset her anymore or add to her uneasiness.  And we were still searching.  We were still very much hoping we'd find George Smith. 

DANIELS:  OK, let me stop you there because I want to go back to a couple of things you say.

First of all, you say that Jennifer was in the spa.  She didn't know anything about her husband.


DANIELS:  Was she wearing the same clothes as she was having the night before?

MARTINSTEIN:  Yes, she was, Lisa. 

DANIELS:  All right.  Then, we know George Smith's wife was questioned by Turkish police in the port and that she was taken downtown and questioned again.  I want you to listen to what Jennifer says happened next. 



SMITH:  The Turkish police officers had said, You need to now go.  We're taking you to a hospital.”  They had told, you know, somebody—not my father or not me—or maybe they didn't figure that out later, but they drove me further into town to a hospital.  And it was a really, for lack of a better word, seedy sort of area and place.  And the man just very, you know, just lifted up my shirt and looked down my pants.


DANIELS:  Ok, Lynn, what's your response to that? 

MARTINSTEIN:  Well, Jennifer—Jennifer wanted to stay on the ship to be question.  We had immediately called the Turkish authorities to board the ship to conduct an investigation.  Jennifer expressed a desire to be questioned by the authorities on the ship.  And we very much wanted to have her questioned on the ship.

But you have to understand, we were in Turkey and the Turkish authorities were in charge.  We weren't calling the shots.  This was the investigation of the Turkish authority. 

DANIELS:  Stop right there.

MARTINSTEIN:  They insisted...

DANIELS:  Stop right there.  I want to ask you, why are the Turkish authorities in charge of this investigation?  That's not maritime law, is it?

MARTINSTEIN:  Well, it is.  We are in a Turkish port.  We call immediately.  We called at 9:15 in the morning.  Minutes after believing George Smith was missing, we called the U.S. Consulate; the FBI, because George Smith is an American citizen; and the Turkish authorities, because they're the local police.  They're the people who will be there the fastest.

The Turkish police boarded the ship.  They insisted that Jennifer Hagel-Smith be questioned off of the ship.  So we were not able to convince them and we tried said to question Jennifer on the ship.  So Jennifer... 

DANIELS:  Again.  Why should Jennifer go, though, off the ship and go with the Turkish authority.  She's an U.S. citizen.  She's saying I don't want to go off this ship.  There's nothing in maritime law that says Turkish authorities are in charge of this. 

MARTINSTEIN:  The Turkish authorities could have forcefully taken Jennifer off the ship.   We are in a Turkish port.  This is a Turkish investigation.  They were asking her to come off the ship and be questioned, as they were asking several other people to come off the ship and be questioned.

I think Jennifer talked to her father, the captain talked to her father and it was decided that she would go off the ship, accompanied by two of our ship's officers, the safety officer as well as our guest relations manager.  Our guest relation's manager stayed with Jennifer the entire time.   So at approximately...

DANIELS:  This is a—let's just—I don't mean to interrupt you.  I just want to clarify.  This is a woman named Marie.  This is a customer service representative.  She's a French woman, is that correct?

MARTINSTEIN:  Yes, she's our guest relation's manager.  She takes care of thousands.  She is directly responsible for thousands and thousands of guests, issues, problems.  She is in charge, a very responsible position and a very responsible woman.  She is in charge.  She is a female officer of the ship and the captain assigned Marie to stay with Jennifer every second of the day.

Jennifer was accompanied by Marie from 10:00 in the morning to 6:00 at night, with one exception.  There was about a 20 or 30 minute period late in the day where Jennifer was being questioned by a Turkish judge and, at that point, Jennifer was still not alone.  Jennifer was with the FBI agent and the U.S. Consulate official.  And the FBI agent actually asked Marie, our ship's officer, if Marie would step out of the room during the questioning, which she, of course, did. 

DANIELS:  OK, let me just stop you there again.  Because this FBI agent that you're talking about, this is a guy who happened to be vacationing on the ship.  Is that correct?

MARTINSTEIN:  No.  No.  Partially right.  He was on vacation in Turkey but he was not vacationing on the ship. 

DANIELS:  So he was at the port?  He happened to be there. 

MARTINSTEIN:  Yes.  But let me—there's an important fact that you're missing.  When we first learned that George smith was missing, it is our responsibility, it is our policy, it's our practice to notify the FBI if there is any possible crime involving a U.S. citizen.  And if we're in a foreign port, you also contact the U.S. Embassy, the U.S. Consulate.  And both of those—so that was done.  So the FBI was contacted in Miami.

DANIELS:  No.  Wait, wait, wait.

MARTINSTEIN:  It was actually—it was actually—no.  Let me—it was actually the U.S. Consulate that then contacted—knew this local agent was vacationing.  It was a very fortunate coincidence.  And that allowed that person to be on the scene and be with Jennifer and the U.S.  Consulate official during the police questioning. 

DANIELS:  I'm interrupting you only to clarify.  Because my understanding is that Jennifer's father actually called the U.S. Consulate and said, “Nobody is with my daughter.  Get in touch with the FBI.”  And it was the consulate that called Royal Caribbean to get this FBI agent.  Is that true?

MARTINSTEIN:  I can't speak for what the father did.  I can only speak for what Royal Caribbean did.  And Royal Caribbean made a phone call that morning at 9:15 to the U.S. Consulate, to the FBI in Miami and to the Turkish police. 

DANIELS:  Why did Royal Caribbean wash away the blood on the awning?

MARTINSTEIN:  We had—the Turkish authorities boarded the ship and conducted a forensic investigation.  They dusted for fingerprints.  They took blood samples.  They removed items from the cabin.  We had, earlier in the morning, we had secured both the metal over hang, 10 minutes after we first were alerted to possible blood on the canopy, which was at 8:30.  Ten minutes later, we had roped off the area in the metal—around the metal overhang.  Ten minutes after that, we had secured the cabin.  So both areas were secured.

The Turkish authorities conducted their investigation, forensic investigation of both areas.  Told us that they had completed their investigation.  That we were free to clean the cabin and also to clean the metal overhang.

We cleaned the metal over hang about 6:00, before the ship left at 7:00.  We cleaned it with a power hose.  But we only cleaned it with the explicit, explicit permission of the Turkish authorities.

The cabin, we actually kept secured for the remainder—for another six days, for the remainder of that cruise. 

DANIELS:  There are reports that the Turkish authorities said that they felt rushed; that they were told to finish this quickly.  Is that true?

MARTINSTEIN:  That's absolutely not true.  We were—had the Turkish authorities, had the FBI wanted—if they needed more time, if they had wanted to question more people, spend more time at the scene, for any reason, had they made any request, we would have complied with that.

DANIELS:  Why was this declared an...

MARTINSTEIN:  We had been cooperating... 

DANIELS:  And why was this declared an accident so quickly?  Why, right after the death, was this declared an accident as opposed to an open investigation?

MARTINSTEIN:  I believe the captain might have said in his announcement that night that we had a person that had gone missing, who we thought had gone overboard.

I don't believe Royal Caribbean put out an official statement calling it an accident.  If we did, we shouldn't have.  We don't know.  We don't know to this day.  This is an active investigation.  We're working very closely with the FBI.  But the FBI has not said whether it's foul play, whether it's an accident or it's something else.  We don't know.  If we said that, we shouldn't have. 

DANIELS:  A maritime attorney I spoke to said, “Turkish authorities have nothing to do with this investigation.” That you're merely using this as an excuse because you know the Turkish authorities would probably rush this through and let the ship go on.  Is that true?

MARTINSTEIN:  No, that's not true.  We are in a Turkish port.  We called the local authorities.  First, we called the FBI because this involves an U.S. citizen.  Any suspected crime, we call the FBI.  That's automatic.  And we call the local authorities.  In this case, these were the Turkish authorities.

So they came on board.  They completed a forensic investigation.  They took samples.  They dusted for fingerprints.  They took photographs.  They tested the blood.  They have turned all of that over to the FBI and the FBI is the lead investigator, and has been for several months.   

DANIELS:  Lynn Martinstein ...

MARTINSTEIN:  And we continue to cooperate with them.

DANIELS:  Lynn Martinstein, thanks so much for coming on the show.

MARTINSTEIN:  Your welcome.

DANIELS:  Appreciate all your questions and answers.

MARTINSTEIN:  Thank you. 

DANIELS:  And coming up, the year's other open cases, including Natalee Holloway.  More than six months after she disappeared, Aruban authorities now say they're going to question the three main suspects again. 


DANIELS:  Unresolved cases in 2005, and there are a lot to get to, so let's begin with Natalee Holloway.

The Alabama teen vanished during a senior trip to Aruba in May, with no sign of her since.  And even though there are a number of suspects who admit being with her that night, no charges have been filed to date.

Joining me now, former prosecutor Bill Fallon and criminal defense attorneys Jonna Spilbor and Mickey Sherman.  We're also joined today by private investigator Vito Colucci.

And a big thank you to all of you for being here.

Bill, I want to start with you.  We've learned that the police plan to

re-interview the suspects in the Natalee Holloway investigation.  Do you

think we're going to learn anything from that re-interview?

BILL FALLON, FORMER PROSECUTOR:  We're not going to learn much from the main witness or the main potential defendant.  I mean,  maybe someone else will break because they might be afraid someone else saw something.

I really believe it's probably a bit too late for a lot of this.  The only hope is that someone buckles under, under conscious, if the Crime was committed that many people think was committed.

And right, you're not going to get the main guy to break because, guess what?  Any time he points the finger, you're not going to believe it.   And I think there's nothing in it for them unless conscious strikes them to come forward with a story. 

DANIELS:  Vito, Beth Twitty has been very out spoken since, of course, her daughter went missing.  Did it hurt or did it help?

VITO COLUCCI, PRIVATE INVESTIGATOR:  Oh, I think it helped quite a bit.  She's kept this story alive on a daily basis, you know?

And as far as them going to talk to these individuals again, the Kalpoe brothers and Joran, you know,  I believe it's still just a smoke screen.  Because even, even if they wind up arresting one of these parties, we need a conviction.  You know?

They've done things a lot of different ways on this whole case here and I don't trust them one bit.  I'm sorry.  Right from day one, from the first weekend that this thing broke. 

DANIELS:  What was the worst mistake did made, Veto, in terms of the investigation from your point of view? 

COLUCCI:  Well, you know, you had a lot of time wasted.  They let these individuals go back out, if you remember that 10 day period while they were chasing the security guards and locking them up and the whole bit.  Some people that have come on the show said that was great tactical work by the Aruba Police Department.  They were going to monitor these individuals.  Let them talk to some people and actually catch them.

It was horrible police work.  They've done these cases.  The most serious crime in Aruba is thefts from visitor's hotel rooms.  That's the most serious crime they have there.

You can't learn from a book how to solve a murder case.  You have to bring in other people and get that assistance. 

DANIELS:  Let's move on to another troubling disappearance and, Jonna, I want to get your point of view about this.

About a month ago, you'll remember, after Natalee was last seen, Olivia Newton John's former boyfriend, Patrick McDermott vanished from an overnight fishing trip in California.

Some say foul play.  Others say he staged his own disappearance because of financial problems.  Either way, the case remains unsolved right now.  And the man is still missing.

Jonna, what do you make of this? It's such a strange case, not only because it just disappeared from the news world but nothing has been heard from him since. 

JONNA SPILBOR, CRIMINAL DEFENSE ATTORNEY:  Yes.  Well, lucky for him if he did stage his own disappearance.  But, you know, without a body or basically any evidence at all, we have no idea whether this guy met with foul play, or whether he just decided one day to change his identity, use nothing but cash and he's living another life. 

And the fact that the media has sort of dropped it, you know, so do we.  So does the public.  So it's hard to say whether this mystery will ever be solved. 

DANIELS:  Veto, what's your take on this one as an investigator? 

COLUCCI:  Well, you know, it's very strange.  You've got a lot of strange circumstances here.  And we can only hope they're looking at everybody.  And, you course, you know, you have to look right from Olivia to everybody.  Their connection with this.  Obviously, I hope they're checking—that they've done cell phone records, all the credit cards and everything else.

The guy just disappeared off the face of the ear earth.  And again, going back to your question about media coverage, again, this story has just died.  Until your producer called me today, I had forgotten about this.  This is several months ago now. 

DANIELS:  Yes.  Bill, you know, I am Olivia Newton John's—one of her biggest fans.  Love her in Sandy from the movie “Grease.”  But, at the same time, her actions throughout this whole case, they were a little odd to say the least.  She didn't come forward immediately.  I haven't heard from her since.  What do you make of it?

FALLON:  Lisa, I don't think she's up to calling any of us.  And I think she has come out recently and is asking people to come forward.

Remember, there might be things in this guy's life that she doesn't really think are to good here or she might just be a person that says, “I have no idea.  I'm hoping he's not dead.  Leave it to authorities.”  If this doesn't tell us what the first case told us, we need security cameras on all these boats.

I mean, we're presuming no one's heard from a person.  They certainly wouldn't hear from a dead person.  For some reason—I think it's only in the news, quite frankly, because it is, in fact, Olivia Newton John's boyfriend.  I think no one would have had an interest in this.  There are disappearances that go on all the time.

And I think she got it in the news originally.  Now she's back with—because maybe they have reached the wall, and at least she's come out and said something.  Unless, some people would say, he wants her to come out and say come find me to keep alive that he is maybe dead. 

DANIELS:  OK, let's move on to some of the cases where we saw some excellent police work that resulted in arrests but haven't been through the courts yet.

Mickey, I want your take on this one.

In October, we were all shocked when Pamela Vitale was murdered.  She was the wife of a good friend the “Abrams Report,” Daniel Horowitz.  Vitale was brutally murdered in their home.  Sixteen-year-old Scott Dyleski was arrested.  He was charged with her murder.  But the mystery still remains, why did he do it.

Mickey, put on you your prosecutor hat for a moment.  Because defense attorneys are great at putting on that hat.  There is no apparent motive here.  Is that going to be a huge problem? 

MICKEY SHERMAN, CRIMINAL DEFENSE ATTORNEY:  No.  No. Because they seem to have a lot of evidence.  Especially when the kid's mother flipped on him within 20 minutes of her being interrogated.

And I was one of those folks, when this happened, that said, “I don't think this is going to have anything to do with the fact that Daniel Horowitz happens to be the husband or that he's a high-profile lawyer, or that he's trying this big case.”  There is just itinerant nuts all over the world.  Certainly no shortage of them in California. 

SPILBOR:  I was going to say, when I was practicing in Massachusetts a little bit, there was a woman I represented who had 16 earrings in her face.  And I said, “Take off the earrings.  You've got to look like a good kid.”  Is that the defense strategy here? That they've got to clean this guy up to show that he's a normal kid?  Put on that famous sweater.  Get him before the judge.  How do they make this guy presentable?

SHERMAN:  I don't—I don't think you can do that.  I mean, everyone's already seen his profile and things like that.  And they've seen the TV shows about it.  So the most they can do is just try to show that he's not evil.  He's just incredibly screwed up, which is not going to get them a not guilty.  Maybe it'll get them less than a death penalty, but he's going down. 

DANIELS:  Jonna, this is a brutal crime.  Do you think the jury's going to be affected by the brutality of the killing? 

SPILBOR:  Absolutely.  And I hate—one of the things I hate about trying murder cases is that the prosecution will always get in the autopsy report, photo of the scene, all these sorts of gruesome pictorial evidence and I think its unnecessary.  You have a dead body.  It should be enough that the jury knows, “Hey, somebody's dead.”  But that does have an affect and that's why prosecutors do it all the time. 

FALLON:  And they should do it.  Lisa...


FALLON:  That's the vicious murder.  If the jury can't see the facts of the viciousness of the murder, especially when you're talking about...

SPILBOR:  Why? You know, a dead body is just a dead body. 

FALLON:  I mean, it's not just the dead body.  In this case, this is a Mansonian, Charles Manson-type, absolutely annihilation of somebody.  It's an outrage.  That certainly should come in when you're deciding should somebody have the death penalty.

As  Mickey said, while they can't clean this kid up completely, the only hope is because of his young age and maybe because  he doesn't start out to be a murderer, maybe they'll keep him off death row.

But I'm outraged by people who think, “Oh, the jury shouldn't really see the crime.  Let's sanitize the crime.”  I think it's the most bogus argument and it's why people hate attorneys, because somehow we think the public, the jury shouldn't see the heinousness of the crime. 

SPILBOR:  Tell me how you really feel, Bill.

SHERMAN:  You wrong, Bill.  There's many more reasons why they hate attorneys.  Not just that one. 

SPILBOR:  Right.  Isn't that true.

DANIELS:  I wish there was a two-hour show.  We could go over all those reasons.

Bill Fallon, Mickey Sherman, Vito Colucci and Jonna, thanks so much for being on the show.  Really appreciate it.

Coming up, more Mark Geragos.  Convicted killer Scott Peterson is starting fresh.  He's got brand new legal team who might win him a brand new trial.

And the noose tightens on former Enron execs.  One of their co-defendants as decided to join the prosecution's side.  With a month to go until trial, is there any chance that Ken Lay and Jeff Skilling can still beat the charges.

And of course, our continuing series “Manhunt: Sex Offenders on the Loose.”  Our efforts to try and get these sex offenders before they strike again.  Our search today continues in Kentucky.  There's the guy, Johnny Coleman, 35-years-old, Caucasian male, blue eyes, brown hair, 5'11”, 200 pounds.  If you've got any information, lets throw up so you can call.  There it is.  502-227-8781.

We're taking a quick break.  We'll be right back.


DANIELS:  Coming up, Scott Peterson hires two new high profile attorneys for his appeal.  Do they know something they think will get him off death row?  But first the headlines. 


DANIELS:  Scott Peterson's woke up this week on California's death row with a new legal team.  It consisted of two of the state's most respected appellate lawyers who also handled the appeals of Lyle and Erik Menendez, those California brothers who were convicted back on 1996 of killing their parents. 

San Francisco attorneys Cliff Gardner and Lawrence Gibbs have been hired privately by Scott's parents' accident Lee and Jackie Peterson.  In California, death row appellant attorneys are so scarce, it can take literally years for the state to appoint one.  The attorneys have already met with their new infamous client in San Quentin instate prison.  Peterson was convicted in November 04 2004 for the murder of his wife Laci and their unborn son, Connor, as a death row inmate.  Under California law Peterson is entitled to a review of his case by the California courts.  He's also entitled to a federal appeal once the state appeals are exhausted so Gardner and Gibbs will now start looking through literally thousands of pages of trial, transports, and evidence to use for their appeal appeals.  Peterson's trial attorney, Mark Geragos could have also handled Peterson's appeal. 


MARK GERAGOS, PETERSON'S TRIAL LAWYER:  Obviously, we're very disappointed.  Obviously, we plan on pursuing every, and all appeals, motions for a new trial and everything else. 


DANIELS:  But Geragos told the media this week he thought the appeal warranted quote, “A fresh set of eyes.”  And joining us now Norm Hile, a California attorney who does death penalty appeals; Paul Pfingst a California prosecutor also MSNBC analyst; and back with us by popular demand, defense attorney Jonna Spilbor.  Thanks for being here again, Jonna.

SPILBOR:  Thanks.

DANIELS:  Norm, let's begin with you.  When you're looking at those thousands of transcripts, what are the mistakes that the appeals attorneys are looking for which makes sense under California law?

NORM HILE, CA DEFENSE ATTORNEY:  Well there are a number of things.  First, what evidence may have come in that should not have come in under the law and also what evidence did not come in that should have excuse me in under the law.  They're also looking at things like whether or not the judge gave the right legal instructions to the jury and whether or not in the case a death penalty case, whether there were any mistakes in the selection of the jury itself. 

DANIELS:  There are more than 600 inmates right now in California death row.  How successful are these appeals—Norm. 

HILE:  Well, it—actually, at the state level, they are not that successful.  But let me just say there are two levels of state appeals.  There's what we call the direct appeal, which is the appeal of what happened at the trial itself and then there is a state habeas corpus proceeding, which is an appeal that attacks the judgment collaterally for evidence that had—that never came into the case.  And these lawyers will actually be looking at both of those issues.  However, it is true that within the state system, the number of reversals is relatively slim. 

DANIELS:  Yeah.  Paul, let me ask you, when I heard that Mark Geragos said he wanted a fresh set of eyes to look at it, when he bowed out, ever so politely, my take on that is the reality is that the biggest chance of these appeals attorneys winning this is saying that Mark Geragos really didn't do his job.  Is that your take? 

PAUL PFINGST, FMR. CA PROSECUTION:  Well, you're right.  The most successful appeal in a death penalty case in the state of California has to do with ineffective assistance of trial council.  Not say that they're competent, but that in a certain area they didn't do their job well, they didn't introduce this evidence, they didn't explore this avenue of factual inquiry or something like that.  So, it does make sense for Mark Geragos not to do the appeal.  What is really surprising in this case, however, is that the most common tactic for someone on death row is to delay the appointment of attorneys so that you are farther and farther away from having the matter resolved.  In very few occasions, and this is the only one, frankly, that comes to mind, have I seen someone on death row restrain council to have the appeal done more quickly, because if you succeed in getting the case in front of the court more quickly and your appeal fails, you will be executed more quickly. 

DANIELS:  Jonna, a lot of people are making a big to-do of that fact that yes, they did hire these two high profile attorneys, but correct me if I'm wrong, but often time you want the specialist to come in.  Mark Geragos is a trial attorney.  He's a great one at that.  But if I were on death row, I'd want to put the in the closers, the people that look through the transcripts and win the case for me. 

SPIBOR:  Absolutely.  And I think as Paul said, you can't have Mark Geragos reviewing his own work to decide whether or not he was effective at the trial level, so it's very rare to have the trial attorney take on the appeal anyway, whether it's a death row case or not.  So, in defending California is—there are very few people on the death row panel.  California will pay attorneys upwards of $450, $500,000, an appeal, to do death row cases, it's very, very expensive and I would suspect that people cannot afford to retain death row appellant attorneys, not your average Joe.  And hopefully maybe—maybe these attorneys—I don't know what they're charging, but perhaps they're giving the Peterson's a break because Scott Peterson has a lot of issues for appeal. 

DANIELS:  Yeah, let's hope.  Let me ask you, Paul, in terms of two jurors being dismissed by the judge, is that going to come up?  Is that a big one?

PFINGST:  If you win that one, you win.  But because it's such an important issue, it is extraordinarily rare in the state of California to win on that ground.  Judges know how important that ruling is and they make a record to cover themselves that is usually enough to get by appellate review.  So, is that a big issue?  Yes, because the stakes are so high.  It's not a harmless error issue where the court could say, yes the judge made a mistake, but didn't affect the outcome the case.  If the judge incorrectly dismissed a juror, it's a dual. 

DANIELS:  Norm, I just want your take on that, the fact that those two jurors were dismissed.  What do you think?

HILE:  Well, I definitely think that's something that the new lawyers will look at and will be looking at as their primary avenue for appeal.  But there are an awful lot of other things that they need to look at that aren't even part of the record and that's why it takes so long. 

DANIELS:  Got to hand it to those appellant attorneys, they really have their work cut out for them.  There are literally thousands of pages that they're going to have to scrutinize very shortly.  Norm Hile, Paul Pfingst, and Jonna Spilbor, thanks so much for all the insight, guys.  Really appreciate it. 

HILE:  You're welcome.

SPILBOR:  Thank you.

PFINGST:  You're welcome.

DANIELS:  Coming up: Enron's one-time top account agrees to a plea deal and will now probably testify against his old bosses.  So do Ken Lay and Jeff Skilling stand a chance in court now? 

And of course, your e-mails.  Send them to,

remember to include your name and where you're writing from.  I'll respond

at the end of the show


DANIELS:  Coming up:  A former Enron exec cops a plea deal with prosecutors in Houston and is admitting guilt.  So are Ken Lay and Jeff Skilling shaking in their cowboy boots?


DANIELS:  And welcome back.  Indicted former Enron CEO Ken Lay was in charge when the energy giant collapsed back in 2001.  He pled not guilty to charges including conspiracy and fraud and he made a speech in Houston earlier this month to business and academic leaders.  In it, he quoted Winston Churchill saying quote, “Truth is the great rock” and promised to testify and asked other Enron employees to join him in creating a wave of truth.  One former Enron employee perhaps has taken that message to heart.  Former chief accounting officer Richard Causey became the 16th person involved in the Enron scandal to cooperate with prosecutors and admit guilt.  He pled guilty, this week, to a single charge of securities fraud.  He'll probably end up serving five to seven years in prison instead of facing a 36-count indictment at trial next month.  Many are saying that Causey is the perfect witness for prosecutors. 

Causey reportedly directly reported to Skilling, he also worked very closely with Lay and he can help guide prosecutors through Enron's books, and signed a deal saying this, quote, “I participated along with others in Enron's senior management in efforts to use Enron's public fillings and public statements to mislead the investing public about the true nature of Enron's financial performance by making false and misleading statements and omitting facts necessary to make certain statements misleading.” 

So, do Ken Lay and Jeff Skilling stand a chance when they go to trial in just a couple of weeks.  Joining me now, somebody who has covered this case, really from the beginning, “Newsweek's” Charlie Gasparino, who's also a familiar face.  An on-air editor for CNBC's “Squawk Box.” 

Good to have you on the show, Charlie. 

CHARLES GASPARINO, “NEWSWEEK”:  Thanks for having me, Lisa.

DANIELS:  So, let me ask you, how does this affect the prosecution's case?

GASPARINO:  Well, I mean, I think this is, I think, a great plus for their case.  I mean, this guy was on the ground, he was there in the meetings.  He would know if Ken Lay actually had the information or was told about the financial condition of Enron.  You remember, part of the charges against Ken Lay is that he deceived the public.  He went out and told people to keep buying the stock because everything was OK with Enron, right after Skilling stepped down as CEO and he became CEO.  This guy could help prove that he actually knew there were problems while he was telling other people, the investing public, that there were no problems, and if they can prove that, that's fraud and that could put him in jail. 

DANIELS:  Look, if I'm the prosecutor and want a witness to cooperate who is credible, to some extent likable, that never hurts, and extremely knowledgeable.  Is this the right guy?

GASPARINO:  Oh yeah, this is exactly—everything you hear about this guy, he's a very soft-spoken man.  He wasn't a guy—the internal player type, inside Enron, that had sharp elbows and was like kind of fighting his way to the top.  He was a guy that people really liked.  And you know, if he is going to give evidence against Ken Lay, and we don't know exactly what he's going to say just yet.  But if he does, he will be a very credible witness.  He'll be a better witness than Mr. Fastow.  Because you remember, Mr. Fastow, he was the CFO, is one of the main witnesses against both Lay and Skilling, but he's a little bit tainted, you know, he admitted that he committed the fraud.  So this guy is a little different, he cut a different plea agreement and I think he's going to come across better. 

DANIELS:  So he doesn't have any of Fastow's credibility issues, do you thing?  Nothing in the closet? 

GASPARINO:  Well listen, anybody that turns evidence and admits that they were part of the fraud will have somewhat of a credibility issue, but I don't think it's to the degree of what Fastow has.  And let's face it, Dan Petrocelli, who was Lay's lawyer, came out and said nice things about this guy, basically said he was coerced into the plea deal, but he didn't attack him like they'd been attacking Fastow. 

DANIELS:  So, if I were one of these Enron victims who's savings were wiped out, how does this affect me?  What am I to make of this development? 

GASPARINO:  Well, I think, you know, a lot of the victims, you know, haven't been made whole, but I—I mean, this is all about retribution.  I think what people want, I mean, and I think this is, I think, a human emotion that we all have, when you've been wronged, you would like the people who did you wrong to pay for it, either go to jail, you know, or whatever.  You know, you want people to pay for it and I think if you're a victim of Enron, you know, most of them, when you talk to them, they want Ken Lay and Skilling and anybody associated with this fraud, or allegedly associated—listen, they have not been convicted yet, Ken Lay and Skilling, you know, proclaim their innocence.  But you want people who have been convicted to go to jail for a long time and this is part of that process. 

DANIELS:  Any chance what's so ever, in your opinion, than that Skilling or Lay is going to cop a deal here? 

GASPARINO:  This is, well, opinion.  Listen, it doesn't sound that way, especially from Lay.  I mean, Lay is going out there—it would be a 180 if he would do that.  You remember, he gave that Teddy—great Teddy Roosevelt speech, which I thought was pretty funny.  But, I mean, I mean, it doesn't sound like he will cop a plea.  Skilling has kept a lower profile, so I think if anybody's going to cop one, it'll probably be Skilling.  But, let's face it, if they—I think the real question is: 

Does this put the prosecution over the top in their case against these two guys.  And quite frankly, this is opinion on my part, I think it does. 

DANIELS:  Hey, it's all opinion, right?  That's what we're doing here.  If you're a lawyer—or Skilling's attorney, just really quickly, how are you going to attack Causey's credibility?  Is there anything that they could use?

GASPARINO:  It's harder to do than Skilling, because this guy, let's face it, was a nice nicer guy inside Enron.  But you could say, like you say with all these sort of cooperating, witnesses, people that have turned evidence.  You know say, listen, they're doing this just to save their own skin and I think they're going to have to do that.  Although, doing it against this guy is going to be a little difficult because, like I said, he's considered a nice guy.  And by the way, he was also part of the defense team.  I think one tack they could take is that, you know, this is so unfair because, you know, Mr.  Causey was actually part of the defense, you know, they had to—they were basically cooperating with each other for a while until very recently, so maybe they can attack him than that way, saying, you know, this is an unfair—you know, the prosecution has an unfair advantage.  But I think their options are running out slowly. 

DANIELS:  I do think that's a likely scenario, though.  Charles Gasparino, thanks so much, Charles, for being here. 

Just want to remind people that you can see Charlie every morning on the new “Squawk Box” on CNBC from 6:00 to 9:00 Eastern Time. 

And coming up, the U.S. plans to deport an 85-year-old sickly man to a country where he says he'll likely be tortured.  I say he deserves to go.  I'll tell you why in my “Closing Argument” coming up next. 

And our continuing series, “Manhunt:  Sex Offenders on the Loose,” our effort to find missing sex offenders before they strike again.  Our search again is in Kentucky.  Please help authorities find this man, Sergio Roca, he's 49, 5'10”, 270 pounds.  He was convicted of sexually abusing a child younger than 12 and hasn't registered with the state.  If you've got some info, there's the number, 502-227-8781, please call.


DANIELS:  My “Closing Argument” now.  On the face the story seems a merciless one, the U.S. Justice Department fighting tooth and nail to deport a sickly 85-year-old retired auto worker, who may or may not have once worked as a guard in a Nazi concentration camp.  But those who have sympathy for John Demjanjuk, who was notified yesterday that he'll be deported once again from the U.S., may not know the whole story. 

He arrived in the U.S. back in 1951, he became a citizen in 1958.  He lived in the U.S. very peacefully for nearly 20 years before authorities tried to have him deported.  They believed he was, in fact, this guy, “Ivan the Terrible,” the infamous guard at the Treblinka concentration camp of Poland.  He fought that deportation, but eventually he was deported to Israel to stand trial back in 1986.  He was convicted and he was sentenced to death after a dramatic televised trial.  But the conviction, as you'll remember, was thrown out five years later when the Israeli supreme court determined Demjanjuk and “Ivan the Terrible” were not the same man, so Demjanjuk returned to the U.S., but authorities here continue to pursue their belief that while Demjanjuk may not have been “Ivan the Terrible,” he did work as a Nazi guard during the World War II. 

In 2002 a federal judge determined Demjanjuk had failed to explain his whereabouts during the war and that federal prosecutors had proved he was a Nazi guard at various death or forced labor camps, and since that decision, Demjanjuk has continued to fight for his right to remain in the U.S. He is now 85, he's in a wheelchair, suffering from chronic back problems.  And he also claims that after being mistaken for “Ivan the Terrible,” he will be tortured if he's forced to go back to the Ukraine.  His attorney said, during last month's deportation hearing:  “Having marked Mr.  Demjanjuk with blood scent, the government wants to drop him into a shark tank.” 

But yesterday, a U.S. immigration judge said he didn't buy that argument, and I don't buy it either.  This man has managed to evade accountability for war crimes for the better part of 60 years.  And in fact, he's enjoyed a very comfortable life during his time here in the U.S.  That's a life that so many victims of the concentration camp he guarded never had.  Even if his claims of likely torture in the Ukraine are true, he is certainly not entitled to the privilege of living out the remainder of his life here in the U.S.

That's my “Closing Argument,” he should go. 

And coming up, New Orleans police standing by, their officers caught on tape moments before the shot—they shooting and killing a man.  Many of you aren't so sure.  We'll have your emails next. 


DANIELS:  And welcome back, I've had my say, time now for your rebuttal.  A lot of you writing in about the man shot by New Orleans police officers.  The moments before the shooting caught on this videotape, the man threatening the officers with a knife, a New Orleans police spokesperson said, on our show yesterday, the incident is being investigated.  But when officers feel their life is threatened, they're taught to shoot to kill.  Most of you like Rob writes from Oregon, very upset with the cops, he writes this:

“The shooting of the man with the knife was totally obscene! When a platoon of officers had him where he couldn't escape why shoot to kill?  Do you mean to tell me that all those cops were such poor marksmen that one of them couldn't have shot him in the legs, etc. then tackle him?” 

But Gwen from Ohio writes this:

“I don't get it.  The bad guy died, and no police or innocent civilians were injured or killed! I say good job!”

And Lori writes this from Missouri, “The gentle man on the show indicated that the suspect wielded a 'large three inch blade hunting knife.' Makes you wonder about allowing 'small, less than four inch blades' on planes now don't it?”

Yesterday we also reported on a 17-year-old Georgia boy sentenced to 10 years in prison for having oral sex with a 15-year-old girl, even though she says she was a willing participant.  Gary writes this:

“Mr.  Wilson should have never appeared in court at all.  This boy will enter prison as a bright young adult and leave as a bitter man with no respect of the law.”

And from Rochester, New York, Neil Webster,

“Hurray for Georgia.  They have now sent a message to kids.  It is better to have intercourse and get pregnant than have oral sex.  You have to wonder where common sense went in this case.”

OK, Neil.  Send your e-mails to the abramsreport, one word, at  We're going to good through them and read them at the end of the show, like always.  That's going to do it for us.  Dan is back tomorrow.  And coming up next, “HARDBALL” with Chris Matthews.  Norah O'Donnell is in today for Chris.  Have a good night.



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