Guest: Kathleen Peratis, John Q. Kelly, Tom Goldstein, Ronald Christie, Jeanine Pirro, Harvey Levin, Kimberly Guilfoyle Newsom, Robert Dunn
DAN ABRAMS, HOST: Coming up—attorneys for Fox News host Bill O‘Reilly and his accuser in court tomorrow.
ABRAMS (voice-over): Even with both sides at the bargaining table, the case moves forward. O‘Reilly wants his former producer to turn over any audiotapes she made of his alleged steamy phone calls while her side won‘t even admit there are any. We preview tomorrow‘s hearing.
And a new lawsuit popping up just five days before the election. Two servicemen file suit against Pennsylvania‘s governor, demanding more time to return their absentee ballots while serving overseas. We delve into this and the other top legal issues surrounding the election.
Plus, it all comes down to closing arguments in the Scott Peterson case. With the prosecution set to begin Monday, tonight I present my version of the prosecution‘s closing argument.
The program about justice starts now.
ABRAMS: Hi everyone. First up on the docket tonight—with rumors still swirling that Bill O‘Reilly and Fox producer Andrea Mackris in settlement talks and close to reaching a deal, a hearing is scheduled for tomorrow and is moving forward. Mackris filed a lawsuit against O‘Reilly for sexual harassment where she detailed dirty phone calls that she says O‘Reilly made to her. He filed his own suit, claiming she and her attorney tried to essentially blackmail him for $60 million.
At issue tomorrow, the tapes Andrea Mackris may have recorded that allegedly have O‘Reilly talking about vibrators, loofahs and soap. Mackris won‘t say whether she has tapes. O‘Reilly isn‘t denying he said it, and O‘Reilly‘s attorney also want Mackris to turn over other information like credit card receipts, telephone statements, and possibly even communication Mackris had with liberal radio talk show Al Franken.
Remember, O‘Reilly had a separate battle with Franken last year when Fox sued him over the title of his book, “Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right”. “My Take”—if this case does not settle soon, Ms. Mackris better have the tapes, because at this point everyone assumes she has them. I still wonder whether she just took notes, maybe there‘s one tape, notes for the rest of them. As for Al Franken, why would that matter? Even if she was politically motivated, either her allegations are true or they‘re not.
Joining me now to talk about what might happen tomorrow employment law defense attorney John Kelly and civil rights attorney and employment law, plaintiff‘s attorney Kathleen Peratis. Thank you for both coming on the program.
All right. Ms. Peratis, let‘s start with you. Are they entitled to the tapes? I mean is O‘Reilly‘s team entitled to any tapes she may or may not have?
KATHLEEN PERATIS, EMPLOYMENT LAW PLAINTIFF‘S ATTORNEY: At some point they are.
ABRAMS: Now though?
PERATIS: It would be very unusual if they were required to turn anything over now. In the ordinary course, the parties turn evidence over to each other. It‘s very hard to hide things for the entire course of discovery. It would be very unusual if they had to turn anything over now. But it‘s a very strange case, so I don‘t know what his arguments are that he needs it now. But it would be unusual if he succeeded.
JOHN Q. KELLY, EMPLOYMENT LAW DEFENSE ATTORNEY: Yes, Kathleen‘s right. They will not be required to turn them over now. What the court will do is order that if the tapes do exist, that they be put aside for safe keeping and preserved in their entirety...
KELLY: ... along with other evidence, too. I mean it‘s an exploitation issue Dan that if the tapes existed and they‘re destroyed at some point during the course of litigation, you know, there‘s unfavorable inference towards the plaintiff. So they are required now to keep them. That‘s what the court probably will order.
ABRAMS: John, will she have to admit, will her lawyer have to admit that they have tapes or don‘t have types in court?
KELLY: No, they‘ll just be told that if they do exist they‘re required to keep them for safe keeping for the future process when they‘ll be required to turn them over during the course of normal discovery.
PERATIS: And you can be sure that no one is more eager to safe keep them if they exist than Andrea Mackris is.
KELLY: Bill O‘Reilly might be pretty concerned about them being kept out of the public eye...
KELLY: ... (UNINTELLIGIBLE) too.
PERATIS: But as far as exfoliation is concerned, she‘s going to want to keep them safe. I‘m sure that he would be very glad if they disappeared in the conflagration somewhere.
ABRAMS: But is this—I mean so is this—let me read you part of Fox‘s motion suing for release of the tapes. This is number one.
O‘Reilly believes that the quotations may be a partial transcription of a conversation that he had with Mackris, but they omit significant portions of the conversation that would show that he did not do or say anything unlawful and that substantial exculpatory portions of that conversation are omitted. The circumstances all suggest that at least one audio recording was made and transcribed in an intentionally misleading manner.
And yet, it seems, Kathleen that you both agree that it‘s not going to be released now.
PERATIS: I think it‘s unlikely. You know, again, it‘s—I don‘t want to make a bold statement that there‘s no way, but I think it‘s unlikely. And whatever she has, she will have to turn over in their entirety. If it‘s a partial transcription in the complaint and she has a full transcription, whatever she has, she‘s going to have to turn over at some point.
ABRAMS: John, what‘s this business about the Al Franken stuff? I mean why could O‘Reilly‘s team possibly be entitled to know right now whether she had any contact with Al Franken? What does that have to do with the truth or falsity of her allegations?
KELLY: Well, you know, this panel is being fought on a couple of fronts. Obviously there‘s a P.R. aspect of it, too. And just by asking about the Al Franken meetings and the Al Franken conversations, the clear implication is that Mackris met with Al Franken and there‘s an exterior motive here. And that‘s the picture they want to get out there.
PERATIS: I think the whole point is that they want to change the subject.
ABRAMS: But as a legal matter, though, Kathleen, is there any explanation for why they would be entitled to information about whether Al Franken met with Andrea Mackris at this point?
PERATIS: Discovery is generally a very broad-ranging process. If they can make any colorable claim that it may impact, for example, on her motivation, I think they‘ll be able to get that kind of material in discovery. That‘s different from whether it‘s relevant...
PERATIS: ... once they get to the stage of trying the case before a jury.
ABRAMS: John, are you surprised there‘s no settlement yet?
KELLY: You know what, Dan? Reading the tealeaves, we haven‘t heard from Bo Dietl lately. We haven‘t heard from Ron Green or Ben Morelli. It seems like everything went dark about a week ago when word first came out that there are discussions. My guess is, and I have no firsthand knowledge of any of this, that you know they‘re just hammering out details right now. I think it was a frontal attack from both sides when it first came out, and it seems like everybody‘s agreed to be quiet now that there‘s some inform and substance and agreement in place with details still to be determined.
ABRAMS: But John, you would agree that whatever details—I mean O‘Reilly sued her. The settlement is not going to be she paying Bill O‘Reilly or Benedict Morelli paying O‘Reilly. The settlement is going to involve O‘Reilly or/and Fox paying her, right?
KELLY: I would think that‘s a pretty good analysis being the legal wiz you are, Dan. I think you hit it right on the head.
ABRAMS: Yes. Yes. Kathleen.
PERATIS: They‘re going to be—and I‘m sure there are a very—a lot of very complicated questions for them to decide. They‘re going to have to decide exactly what the rest of us get to know. They‘re going to have to decide the scope of the confidentiality. You know, the thing that he gets for this is silence, and silence in this case is going to be very complicated. Who knows how many people already know things that they‘re going to want to make sure don‘t get out?
PERATIS: They‘ll have to be penalties; there will have to be callbacks. It‘s going to be a complicated matter to make sure he gets what I‘m sure he‘s paying dearly for, which is silence for good.
ABRAMS: And then, of course, then there‘s our own Keith Olbermann who‘s offering $99,000...
ABRAMS: ... as long as she keeps the tapes. He says he doesn‘t care if they settle or not. But he just wants, for the sake of history, he says to keep the tapes. So...
ABRAMS: Final word, John, go ahead.
KELLY: Just that they‘ve got to be concerned with the long-term confidentiality aspects too, that a year from now...
KELLY: ... two years from now, three years from now, nothing comes out, and they‘ve always got to worry about like a Kobe Bryant situation...
ABRAMS: Or Michael Jackson.
KELLY: ... where you know an audio enhancement expert or someone taking a transcript of a potential take me (ph) of a copy of it somewhere...
KELLY: ... and it surfaces a year from now with “The National Enquirer”...
ABRAMS: I said Jackson because, you know, his settlement terms just came out last—all right. John Q. Kelly, Kathleen Peratis, thanks a lot.
PERATIS: Thank you.
ABRAMS: Coming up - with just five days to go more big legal issues surrounding the election, including a challenge over an Ohio law that allows representatives from political parties inside polling places.
Also, at the end of the show, I usually present my “Closing Argument”, my thoughts on a topic in the news. Tonight, I preview my closing argument in the Scott Peterson case. The six-minute version of what‘s expected to be a six-hour closing.
Your e-mails email@example.com. Please include your name and where you‘re writing from. I‘ll respond at the end of the show.
ABRAMS: Coming up—the top legal issues facing the electorate with an attorney who worked on Vice President Al Gore‘s case before the Supreme Court in 2000. It‘s coming up.
ABRAMS: Another day down, only five days left until the election. The legal wrangling isn‘t letting up any as lawsuits continue to pile up in crucial battleground states. First up today, Ohio. A former Cincinnati council member and her husband filed a complaint just a few hours ago in federal court, saying that state officials and Ohio Republicans are trying to—quote—“seize on a Jim Crow-era law to prevent African Americans in Hamilton County, Ohio, from exercising their right to vote.”
(UNINTELLIGIBLE) 51-year-old law in Ohio that political parties have representatives inside polling places to check voter identity make sure proper election law is followed. But the plaintiffs in this lawsuit claim the law is only going to intimidate black voters. Both major parties plan to use challengers, but this particular lawsuit only talks about Republicans.
In Colorado two interesting legal developments. In an unusual move, the Republican secretary of state has hired a bipartisan team of lawyers to defend her from any lawsuits that might be filed over election issues. Her attorney general has recused himself because he‘s running for an open Senate seat. The move shows you how contentious this election has become.
If that‘s not enough, also in Colorado, prosecutors charged two people with filling out multiple registration forms. They say they‘re investigating—quote—“reams of documents” for potential problems. What a mess.
“My Take”—in Ohio, welcome to the rough and tumble world of election 2004. For either side to claim they won‘t have people at the polls waiting to invalidate the other side‘s voters is either just dishonest or naive, and it‘s just too late. As for Colorado, it would be nice if more of them would try to make their rolls nonpartisan. Secretary of state I hope she gets advice from both sides rather than just having them defend her.
Joining me now, Ronald Christie in Washington, D.C., a former advisor to Vice President Cheney, also an election law attorney. And attorney Tom Goldstein, also in Washington, helped argued the 2000 Bush v. Gore case on behalf of Vice President Gore.
Thank you both very much. All right. Let‘s start in Ohio. Mr. Goldstein, you know, this seems to me to just be one of these sort of waste of time kind of nuisance lawsuits in Ohio. Do you disagree?
TOM GOLDSTEIN, FORMER GORE 2000 RECOUNT ATTORNEY: I don‘t know whether or not the case will win or not. They‘re in federal court today. But I like the case for what it says, even if not for what it ultimately accomplishes, because we want people to go into the polls to pick the parties. We don‘t want the parties picking the voters.
ABRAMS: But you know that‘s going to happen. I mean to me this is sort of a naive lawsuit to say, oh, you know, we don‘t want both—I mean, it‘s going to happen. It‘s in the law in Ohio. Both sides get their opportunity. And what this lawsuit is saying is oh the Republicans are going to be unfair, as if the Democrats aren‘t going to also try and invalidate votes.
GOLDSTEIN: Well, that‘s what the Democrats have said and I believe them. They say that they are not going in there to kick out voters. What they‘re trying to do is make sure that people have the opportunity to cast ballots for whatever party they want.
ABRAMS: Yes. Ron.
RONALD CHRISTIE, ELECTION LAW ATTORNEY: Dan, I‘ve been so steamed about this all day, let me tell you. Voter suppression in my view is water cannons, sheriffs holding black folks back from the polls, and making sure that there‘s a poll tax so black people don‘t go to the polls. But when you have a statute on the books in Ohio that says that if you are allowed to bring poll people into the polling place to challenge, the Democrats are doing it, the Republicans are doing it, but interestingly enough, it‘s only the Republicans that are trying to be excluded in this lawsuit for being inside the polling place. That‘s my beef with it.
ABRAMS: The lawsuit is a nonstarter. I mean...
ABRAMS: ... I don‘t think anything is going to happen. But I want to tell you this just came in, literally, Pete Williams, our justice correspondent, just gave us this. The Ohio attorney general has alleged that a federal judge has—quote—“just thrown Ohio‘s election process into disarray and has opened the door to voter fraud.” Now asking the federal appeals court there to step in and immediately lift yesterday‘s ruling that blocked challenges to newly registered voters.
He says that the effect of the judge‘s ruling was to stop hearings over voter challenges in five Ohio counties, but not the other 83. Remember, of course, this—the issue here was whether they can evaluate these voter registration forms now to determine whether they‘re going to be eligible to vote rather than determining it later. Tom Goldstein, what do you make of this?
GOLDSTEIN: This was a crazy idea. The judge did the right thing that we were going to have sort of ex parte hearings without people around for 35,000 people in a day. If Ron wants for poll watchers to come in and evaluate people, then that‘s going to be the way we‘re going to do it. That‘s what will give people real process when they‘re there, and if there‘s a real reason to challenge an individual, it can happen then.
CHRISTIE: And of course I disagree with the judge‘s ruling yesterday. Frankly, if you allow people, the statute says it has to be three days prior—three days‘ notice—excuse me—and two days prior to the election for the challenges to take place.
CHRISTIE: If these challenges had taken place, Dan, then we wouldn‘t have people in the polling stations to begin with because they would have already sorted out those people who weren‘t legally eligible to vote.
ABRAMS: What I don‘t understand, Ron, is why—look, whether you agree with the ruling or not, how is a attorney general to be suggesting that this is throwing the entire process into disarray? I mean look, that‘s such an overstatement. The bottom line is so they‘re going to have to evaluate some of these voter registration forms after the election. It‘s happened before. It will happen again. Why is he making this out to be some sort of, you know, make or break issue?
CHRISTIE: I agree with you, Dan. I mean, maybe the political fever out there in Ohio is making the attorney general say something that I‘m sure that they would regret later. But the fact of the matter is the ruling yesterday, in my opinion, was a mistake.
ABRAMS: And very quickly, Tom, this Colorado business, look, the secretary of state hiring lawyers from both sides already just in case she gets sued?
GOLDSTEIN: Well, she‘s going to get sued. It seems almost inevitable that everybody‘s going to get sued. It seems a pretty smart move. There was some worry that although nominally two of the four lawyers were Democrats, none of the Democrats in the state had ever heard of them, but I‘m sure it will work out.
ABRAMS: Yes. All right. If you both could stick around for a moment. When we come back, two soldiers serving in Iraq and Kuwait are now suing the state of Pennsylvania saying they need extra time to send in their absentee ballots.
And a lot of you have told me to put up or shut up when it comes to the Scott Peterson case. I hear you. Tonight I submit to you, ladies and gentlemen, my “Closing Argument”. How prosecutors might want to present the case for the jurors on Monday. That is if they only had six minutes as opposed to six hours. My legal team will provide a critique.
ABRAMS: We‘re back. We‘re talking more about the legal battleground making news everyday, as the presidential election is five days away. Pennsylvania, key swing state, two servicemen now serving in Iraq and Kuwait filed a complaint in federal court yesterday. They want a 15-day extension for the return of overseas ballots. Democratic Pennsylvania Governor Ed Rendell says he has not found evidence that the soldiers need more time. Republican Congressman Curt Weldon ripped into the governor yesterday at a rally protesting his decision.
(BEGIN VIDEO CLIP)
REP. CURT WELDON ®, PENNSYLVANIA: It‘s an absolute disgrace in America that the families of people serving our country would have to file a lawsuit to guarantee that their sons and daughters have the vote. And I‘m ashamed of Ed Rendell that he would let them file a lawsuit. They shouldn‘t have to file a lawsuit.
(END VIDEO CLIP)
ABRAMS: Oh, come on, we can‘t have any rules at all when it comes to overseas ballots? “My Take”—a U.S. District court judge ruled on this issue last Wednesday after the Department of Justice filed a motion to force a deadline extension. The judge denied the motion, saying extending the deadline to send absentee ballots overseas could do more harm than good. I agree.
Absentee ballots offer the possibility for the greatest opportunity for fraud in this election. Changing any voting procedures this late in the game, I‘ve said it on all these lawsuits, is a very bad idea. Ronald Christie, look, it sounds great, and it is a great sound bite for Curt Weldon to be able to get up there and say this is an outrage to not let our soldiers—no one‘s talking about not letting our soldiers vote. The question is should we change the rules now?
CHRISTIE: Well, I‘m going to take a very, very cautious approach to this, Dan. On the whole, I think, no, you shouldn‘t change the rules of the game after the game has already started. On the other hand, I want to see if there‘s actual harm. If there are soldiers overseas or if there are citizens living overseas who are not being able to cast their ballot due to the fact that the Ralph Nader litigation kept it going on for so long that the ballots didn‘t go out for so late in a couple of the counties, if there‘s real harm, then I would want to take a look at it. But absent harm, absent a finding that people are not being allowed to send their ballot back on time, I think it‘s a bad idea.
ABRAMS: Yes, I don‘t know. Tom, this just seems to me to be another
· again, I‘m doing this on both sides. I think this is another one of these cases that just would create a mess.
GOLDSTEIN: Well, I‘m with you and I‘m glad to see that Ron is with the governor here. The governor doesn‘t have the power to extend the deadline. Only the judge can do that. The governor said, look, if you‘ve got evidence that there was a real problem, hey, I want everybody‘s vote counted. So I think it‘s going to go to court. And if there is a real problem there, we only have two service members out of tens of thousands complaining, then I‘m sure the judge will make sure those ballots get counted.
ABRAMS: And Ron, I mean, will it matter how many service people get involved in this? I mean, if we start seeing other service people claim this throughout the country, or is this really just a Ralph Nader-specific issue in Pennsylvania?
CHRISTIE: Well, I think we‘ve heard a number of military personnel not only in Pennsylvania and Florida and some other states expressing concerns of whether or not their ballots would be able to return to the United States in time for the election, but my concern in this specific Pennsylvania case is if there are service members, even one, Dan, if there‘s one person who didn‘t get their ballot as a result of this, then I think perhaps we should look at extending the deadline.
ABRAMS: But what if there‘s someone who didn‘t get it as a result of something else in some other state?
CHRISTIE: That‘s a fair point. But the point in this specific case...
CHRISTIE: ... is that these soldiers are alleging that they‘ve been harmed due to the Ralph Nader litigation.
ABRAMS: Yes. All right. Well I think that the harm - the question is there harm is a good question, but I just don‘t think you can start changing the rules. Ronald Christie, Tom Goldstein, good segment. Thanks a lot.
CHRISTIE: A pleasure.
ABRAMS: And a reminder—from now until Election Day, we‘re going to keep on you top of the legal issues that could impact—remember, this is make or break stuff, these legal stories. You know, everyone‘s saying it‘s going to come down to the law. That means it comes down to THE ABRAMS REPORT.
You can get more information on NBC‘s “Making Your Vote Count” project on our Web site. We hope there will be a clear winner on election night. But if there isn‘t, we‘re going to be here to cover all the legal issues, along with our MSNBC colleagues at Democracy Plaza.
And if you‘re having trouble voting that day or before, you can get help by dialing the NBC News voter alert line. The number, 1-866-MY-VOTE1, 1-866-MY-VOTE1.
Coming up—ladies and gentlemen of the jury, I present the prosecution‘s closing argument in the Scott Peterson case. Well, not really. But my version of it, at least. How I think they might want to wrap up their case if they only had six minutes as opposed to six hours.
And a lot of you writing in about our segment on vote pairing last night. One of you with an interesting take on how our elected officials swap their votes and say that‘s not illegal.
Your e-mails firstname.lastname@example.org. Please include your name and where you‘re writing from. I respond at the end of the show.
ABRAMS: Coming up—prosecutors in the Scott Peterson case are going to try to take about six hours to present closing arguments. I try to make a convincing case that Peterson is guilty in six minutes, but first the headlines.
ABRAMS: We‘re back. With closing arguments set for next week in the Scott Peterson case I‘m going to present my mock closing argument for each side. Today, the prosecution. Tomorrow I‘ll tackle the defense.
For the prosecution: Ladies and gentlemen of the jury, this is at its heart a fairly simple case, a long case, but in the end, a simple one. The evidence you‘ve heard for the past five months demonstrates that one of two things happened to a beautiful, vibrant, pregnant woman named Laci Peterson on or around December 24, 2002. Either, as the defense has suggested, some homeless transient, unidentified, Polynesian looking individuals, or local burglars abducted Laci in or near Modesto Park for her jewelry or for her baby in the 10 to 20 minutes after Scott Peterson left their home.
And then rather than leaving her, took her to some undisclosed location until Scott Peterson announced where he‘d been that day. Then the killer or killers went 90 miles to the San Francisco Bay to the exact spot where Scott Peterson said he‘d been fishing and dumped the body in an effort to frame Peterson. But rather than placing the body in the water so that Peterson would be immediately blamed, weighed the body down with anchors, leaving her decomposed remains and those of her son Conner to only wash up accidentally months later.
The other possibility, she was killed by her philandering husband who had forecasted her death about two weeks before she disappeared, who had admitted he had gone fishing in the exact location where the body of Laci and her son washed up months later, nowhere near their Modesto home. Ladies and gentlemen, I submit to you that the most important piece of evidence in this case—pieces of evidence in this case—are not even in dispute.
First, however you want to characterize it, Scott Peterson began an extramarital relationship with Amber Frey in November of 2002. He told her he‘d be able to spend more time with her in January, not in dispute. On December 6, Amber‘s friend, Shawn Sibley, confronted him about being married. He told her he had lost his wife, but that he wanted to tell Amber himself, not in dispute.
The next day, December 7, he began looking to buy a boat on the Internet. December 8, he searched for information on the tides in the San Francisco Bay, the precise area Laci‘s body was eventually found. December 9, he tearfully told Amber he had lost his wife. Two weeks later, that prediction became reality. His wife was lost.
It‘s also not in dispute that the day Laci went missing, Scott Peterson claims he was fishing nearly two hours away from their home on Christmas Eve and yet he told different stories to different people about his whereabouts. Why? He told two neighbors and one of Laci‘s family members that he went golfing, not fishing that day. Other witnesses testified he didn‘t seem certain what he was fishing for. It‘s also not in dispute that he said Laci was wearing black pants and a white shirt when he left the house.
The problem? Her body was found with tan pants, meaning if the defense‘s theory is true, in the minutes after Scott Peterson left the house, his seven and a half months pregnant wife dropped her mop that he said she was using when he left, raced to change her clothes, and was immediately abducted. Think about it. How long does it take a woman that pregnant to just put her shoes on?
And speaking of shoes, why aren‘t any of her shoes missing if she was out for a walk? It‘s not in dispute that Scott Peterson returned to the marina where the bodies had not yet been found at least three times, sometimes in a rented car, and that he repeatedly lied, even to his own family members, to cover up the fact that he was there. He also lied about various other issues, to the police, Laci‘s family, and the media in the weeks after her disappearance.
Ladies and gentlemen, why would an innocent man tell so many lies if, in his words—quote—“these are critical days.” How could those lies help find Laci? And while there‘s no standard for how an innocent husband would or should act, it‘s not in dispute that in the weeks after she went missing, he sold Laci‘s car, tried to sell their house, and just a week afterwards, called Amber from Laci‘s vigil, and you heard him telling Amber he wanted to create a life with her, take care of her daughter, that he didn‘t want to have more children.
It‘s not in dispute that he was arrested 30 miles from the Mexican border. The defense says he was going to play golf. Of course, he didn‘t have any clubs or shoes, and yet his car was stuffed with other gear, survival gear, $15,000 cash, and some Mexican currency. Then there‘s the physical evidence. The defense has offered a lot of theoretical possibilities about why Laci‘s hair could have been found wrapped on pliers in Scott‘s new boat. About why 80 pounds or so of cement might have been used for something other than anchors to weigh down Laci‘s body.
About why these pictures depict something other than five spots where the anchors were made (UNINTELLIGIBLE). And why tracking dogs who tracked her scent from their home to the marina were wrong. Ask yourself—could Scott Peterson be so unlucky so many times that so much incriminating evidence is actually something else? Please, don‘t lose focus of the big picture here. There are possible innocent explanations for some of the evidence, and you will hear them from the defense. But not for all of the evidence taken together, taken as a whole.
There is no other reasonable explanation for what happened to Laci Peterson. We‘ve proved beyond a reasonable doubt that Scott Peterson killed Laci and ask you to find him guilty of first-degree murder in the death of his wife and their unborn child.
All right, that‘s it. That‘s my closing argument for the prosecution. Tomorrow I‘ll take on the other side. But for now it‘s time to go to our guests to talk about how we did from our panel of experts, what I missed, what I should have hit.
Joining me now, former Westchester County judge and current Westchester County D.A. Jeanine Pirro, Court TV anchor and all sorts of other networks, Kimberly Guilfoyle Newsom, and criminal defense attorney Robert Dunn. All right, Jeanine, what did I need to hit on more? What are the key facts? What did I miss? How did I do? Come on, let‘s hear it.
JEANINE PIRRO, WESTCHESTER COUNTY NY D.A.: I have to tell you, Dan, I think that for six minutes or three minutes, whatever it was, you hit a lot of points. I think that, you know, when you put it all together, as you say, it‘s the totality of the circumstances that lead us to such conclusion that it‘s inescapable, that there is no other explanation. And I think that what a prosecutor could very well do is to read Geragos‘ opening statement as to what he intended to prove, making clear that he has no burden.
But the fact that he didn‘t prove what he alleged was the case is certainly something to consider. And also, I think most important here, Dan, is the fact that he never really went looking for her. He never answered his messages. He never put up posters, because all along he knew that she would never show up. He used that nursery as a storage facility after she was gone because he knew the baby was never coming back. I mean, you hit all of the points, Dan. I thought you did a great job.
ABRAMS: Oh, well, thank you. All right. You know what? I got to break in very quickly to tell you that Celebrity Justice is reporting that there is a settlement in the Bill O‘Reilly sexual harassment case. We don‘t have any details of what this settlement is about.
You know what we‘re going to do here? Let me take a break. We‘re going to figure out what this is all about. If, you know, we don‘t to want move on with that, we‘ll go back to talking about my closing argument. But if not, we‘re going to come back and talk about this O‘Reilly case as well. So Kimberly and Robert, I‘m sorry. Just stay with us for one sec. Back in a minute.
ABRAMS: We‘ve got to shift gears. We‘ve got breaking news to tell you about. A source close to the case of Bill O‘Reilly, sexual harassment case, telling NBC News that a settlement has been reached. This story was first broken by Celebrity Justice and the executive producer of that program, Harvey Levin, joins us on the phone. Harv, what do you know?
HARVEY LEVIN, “CELEBRITY JUSTICE”: Well Dan, this did, indeed, settle. It has settled as a confidential one. We do not know the amount of this settlement. We do know that part of the settlement is that Bill O‘Reilly absolutely admits no wrongdoing whatsoever. But it is a done deal, and if any tapes did exist, any secret audiotapes by Andrea Mackris, it would appear very clearly that they would never surface, and that‘s got to be part of this thing.
ABRAMS: And Harv, when did you find out about this? Do you know when they reached this agreement? There was supposed to be a hearing tomorrow.
LEVIN: Right. I mean Dan I think that‘s critical. I mean I think the clock was ticking because if this happened—if this hearing happened tomorrow where O‘Reilly demanded these tapes, I think the prospect of a settlement would have diminished because, frankly, Andrea Mackris‘ best leverage was the unknown. And if she did end up having to produce any possible tapes and if it showed that she was enticing him or certainly that O‘Reilly was not harassing her, that her leverage would have diminished significantly. So the clock has been ticking for a week now. We know they‘ve been talking since late last week. It was up and down, but it is a done deal.
ABRAMS: Oh, Kimberly Guilfoyle Newsom, any surprise here?
Not at all. In fact, I‘ve been speaking to sources close to both sides, both to the Mackris camp and to Bill O‘Reilly‘s camp. This is something both sides wanted to happen. It was in everyone‘s best interest. The damage would have been done, and it would have been something that he wouldn‘t be able to recover from if those tapes came out. And his incentive to settle would have been removed.
KIMBERLY GUILFOYLE NEWSOM, COURT TV ANCHOR: It was good that the tapes didn‘t come out. Both parties have come to an understanding here. I‘m surprised it didn‘t settle before, but I think it was just largely because the plaintiff in this case, Andrea Mackris, her attorney, had requested the quote—unquote—“$60 million” fee, and that was something that they weren‘t willing to agree upon. So you can probably imagine that it settled for something far less than that amount.
ABRAMS: Yes and the attorney for Andrea Mackris, Benedict Morelli, denies that that he specifically said, I need $60 million. Robert Dunn, how much do you think we‘re talking about here? I know it‘s going to be under seal. I know we‘re probably not going to find out the amount. But given the circumstances, what would you estimate this kind of case would settle for?
ROBERT DUNN, CRIMINAL DEFENSE ATTORNEY: Well, I think it‘s certainly worth five to 10 million to Fox to keep O‘Reilly, who‘s their number one producer in terms of revenues, to keep him viable. It‘s certainly worth that amount of money to Fox.
ABRAMS: Jeanine, my guess would be, and again, this is purely a guess, but knowing this type of case, knowing the circumstances here, I would guess somewhere closer to the sort of two to three million range. I don‘t know. What do you think?
PIRRO: You know, Dan, my sense is it may be a little more than that, but certainly not anywhere near the $10 million range. But, you know, it is so easy to make accusations against celebrities and public officials, and it‘s very difficult for them to turn around and to sue. But I think that the length of these negotiations took so long because if, indeed, Mackris did start at 60, that‘s an incredible number.
And so I think that they had to fight long and hard to get it down to a reasonable number. But the bottom line here and the most important part of the settlement, is that the tapes will never come out. And I imagine that there is some kind of clause in there that if they do...
ABRAMS: How do you enforce it...
PIRRO: ... that she...
ABRAMS: How do you...
PIRRO: I‘m sorry...
ABRAMS: How do you enforce something like that?
PIRRO: Well, because you put a clause in the contract, Dan, that in the event that the tapes do surface, that she then has to give back the money or pay some kind of sanction, damage. That‘s already been hammered out in the negotiations.
ABRAMS: And Kimberly, from Fox‘s—well, let‘s say from O‘Reilly‘s perspective, that‘s going to be the crucial issue here, which is, I want to put this behind me.
GUILFOYLE NEWSOM: Absolutely. That would have been something that was their bottom line that they wouldn‘t deviate from that in terms of their contract negotiations in reaching this settlement, because then the damage is done and he might as well have not paid the money. The key is to keep those tapes confidential and private, not out in the public domain, so I‘m sure they paid a decent amount to ensure that.
And she would have to pay back monetary damages or forfeit the settlement fund, a good portion of it, if it became public. Now, the question remains, tabloids pay for things like that. Are they going to be able to enforce it? Has anyone else had a copy of that tape? I‘m sure she has a copy, her attorney, maybe one in a safe deposit box, but it better keep under wraps.
ABRAMS: And maybe it‘s going to come from more than two to three the more I think about it. But Robert Dunn, maybe there‘s not a tape. I mean that‘s the thing. We all—all of us, including me, assume that there‘s a tape because she had these long transcripts of what she said O‘Reilly said to her. Remember, she was a producer who‘s used to taking notes. Is it possible that she and her lawyer just snookered O‘Reilly‘s team by convincing them they had a tape when they didn‘t actually have one?
DUNN: Well, and anything is possible, but I give Fox and O‘Reilly credit to the extent that I think that‘s what has taken so long. The plaintiff didn‘t want to show exactly how much she had on the tapes. She wanted to tease them with the fact that I have these tapes. They wanted to know more about exactly what she had on the tapes, and that‘s what the dance has been up until this point when it came to the settlement table. But I think I‘m going to give Fox and O‘Reilly enough credit that they did enough due diligence to determine that there was—there were, indeed, tapes. There was, indeed, a reason to pay over at all.
ABRAMS: We should tell you that NBC‘s Anne Thompson reporting that all the claims have been withdrawn at this point. There is an all-out settlement in the Bill O‘Reilly sexual harassment case. Kimberly, this question is almost academic. But remember, O‘Reilly sued her. He was the first one to sue here. There‘s a zero percent chance that somehow this settlement involved him paying her, right?
GUILFOYLE NEWSOM: Oh, yes, there‘s no shot of that, Dan. And him filing suit was a preemptive strike on his part, and a good one from a reputation management perspective. He had to go on the offensive and say, this is extortion, this is an outrage, and I will not tolerate this, because this is the guy that, from the “No Spin” zone, he had to show a strong stand on this, take the offensive so that when it became public that she was filing suit, it was simply a matter that he beat her to the punch. And I‘ll tell you what, Dan...
DUNN: Which is a typical Roger Ailes technique.
GUILFOYLE NEWSOM: Well, they‘re not—yes, well Fox is not going to be bullied into anything. And I‘ll tell you what, you can bet that they said, you want us to show you the money? Show us the tape.
ABRAMS: Really? All right. Let me take a quick break here. We‘re going to have Anne Thompson on the backside of this. She‘s the one who‘s got the story for us. She‘s got the inside scoop. Maybe we‘ll get a little more detail on exactly what the settlement is. We continue our reporting in a moment on a settlement in the Bill O‘Reilly sexual harassment case. All of the claims have been withdrawn. More coverage...
ABRAMS: Coming up, the Bill O‘Reilly sexual harassment case has settled. We‘ve got a quote from the attorney for O‘Reilly. We‘ve got more inside details coming up in a moment.
ABRAMS: We‘re back with breaking news in the Bill O‘Reilly sexual harassment case. NBC News has learned that the case is over. NBC‘s Anne Thompson broke the story for us and she joins us now. Anne, what do we know?
ANNE THOMPSON, NBC NEWS CORRESPONDENT: Hi Dan. Well we know that negotiations have been going on all this week between the two sides involved in this case. Obviously, Bill O‘Reilly and his former associate producer, Andrea Mackris, and her attorney Benedict Morelli. And late this evening, we understand that they‘ve reached a settlement, and as you—I understand, you have said her—O‘Reilly‘s attorney Ron Green released a statement saying that all claims in this case have been withdrawn and that all parties agree that there was no wrongdoing in this case.
Now, they don‘t detail what the settlement was. There‘s no talk about money in the statement. Just that they did reach the settlement and all those ugly claims of extortion and sexual harassment have been withdrawn by both parties.
ABRAMS: The statement that Anne is referring to from Ron Green, all claims have been withdrawn and all parties involved claim there has been no wrongdoing by anyone involved in the case. Anne Thompson, thanks very much.
All right. You know, Jeanine Pirro, this is always what they say at the end of these cases. Oh, there‘s no wrongdoing. But you know people are paying a lot of money for no wrongdoing, right?
PIRRO: Well that‘s why it is so important that these cases, Dan, be resolved as quickly as possible. Because the longer they‘re out there, the more the public starts extrapolating from what they hear rumor after rumor. But as I said before, you know, public officials and celebrities are very vulnerable to these kinds of claims because it affects their business.
This has affected Fox in the sense that, you know, there was such criticism of O‘Reilly by the plaintiff. And so by saying that there‘s no wrongdoing, by sealing the settlement, by making sure that the tapes don‘t come out, it is basically over. The public will not hear much more about this unless the tapes happen to leak out. And my guess is they‘ll never leak out, Dan, based upon the possible forfeiture of the settlement if they do.
ABRAMS: This is a full statement now from Ronald Green, the attorney for Bill O‘Reilly and Fox.
The parties regret that this matter has caused tremendous pain and they have agreed to settle. All cases and claims have been withdrawn and all parties have agreed that there was no wrongdoing whatsoever by Mr. O‘Reilly, Ms. Mackris or Ms. Mackris‘ counsel, Benedict P. Morelli & Associates. We now withdraw any assertion that any extortion by Ms. Mackris, Mr. Morelli or Morelli & Associates occurred out of respect for their families and privacy. All parties and the representatives have agreed that all information relating to the cases shall remain confidential.
You know Kimberly that always sort of gives me a little bit of a giggle when I hear them say no wrongdoing on anyone‘s part. You can just see them when they were settling discussing the settlement, yelling at each other...
GUILFOYLE NEWSOM: Yes...
ABRAMS: ... and screaming...
GUILFOYLE NEWSOM: ... a blood bath.
ABRAMS: Yes. Exactly. Oh no wrongdoing, they come out and say.
(UNINTELLIGIBLE) you are the slimiest, most disgusting XYZ on earth.
GUILFOYLE NEWSOM: And now they‘re going to have a tea party. Yes, once the blood bath is over, they shower up, clean off and then everything is back to normal. But of course, there‘s been damage done to both sides. Obviously Ms. Mackris feels she‘s been wronged, that she‘s been maligned in the press. Obviously, Mr. O‘Reilly feels that he has been unflattered and you know, portrayed in this way in the media...
DUNN: Oh but Dan, please. This is -- this love fest here, you know, of media circling the wagons. Following up on what you were saying. It‘s interesting that I think I‘ve heard both Jeanine and Kimberly slam Michael Jackson with regard to his settlement of a prior allegation when you raise the same type of issue that didn‘t—where there‘s smoke, isn‘t there a fire? But yet now, when it‘s O‘Reilly, you know...
PIRRO: You know what...
DUNN: ... the sentiment is...
PIRRO: You know what...
DUNN: ... that oh...
DUNN: ... let old dogs lie...
PIRRO: You know what Robert? I have to respond to that. You know there‘s no such thing as where there‘s smoke, there‘s fire. As a prosecutor, our job is to make sure we have evidence to back up our allegations. Right now this is over. And as far as...
DUNN: But that‘s not the point I‘m making Jeanine...
PIRRO: As far as...
DUNN: I‘m talking about when it was Michael Jackson...
PIRRO: What about Michael Jackson?
ABRAMS: The point is...
ABRAMS: The point is, Jeanine, when people pay—if Bill O‘Reilly paid $5 million, let‘s say, it really is hard to convince people that there was no wrongdoing when you‘re willing to pay $5 million. Would you agree with that Jeanine? I don‘t know what the number is. I‘m just throwing that out.
DUNN: At least you‘re consistent Dan...
PIRRO: You know sometimes—Dan, sometimes people make these decisions to end the allegations. Because if this thing were litigated, it could have gone on for years. There‘s no question about it.
ABRAMS: ... a guy like Bill O‘Reilly who stands by so much of sort of intellectual honesty and living by, you know, the right—I think it would be very dishonest if there was a payment of $5 million, for example and you know the claim was I did absolutely nothing wrong. I think he‘s even said it Kimberly...
GUILFOYLE NEWSOM: Right, right, Dan. Obviously...
ABRAMS: He said on the radio...
GUILFOYLE NEWSOM: Look, look, Dan...
ABRAMS: ... I was stupid.
GUILFOYLE NEWSOM: Dan, there‘s a difference here with all due respect. OK, you‘re talking about with Michael Jackson, you‘re talking about child molestation charges. There‘s a different playing field here. You have two adults. There‘s two sides...
DUNN: We‘re not talking about the...
GUILFOYLE NEWSOM: Hold on. There‘s two sides...
DUNN: We‘re talking about whether or not it‘s fair.
GUILFOYLE NEWSOM: If I may finish...
ABRAMS: Let her finish. Kimberly, go ahead.
GUILFOYLE NEWSOM: There are two sides to every story. What we know here, there appears to be some issue as to whether or not there were comments made by both parties. We don‘t know that and we probably will never know because if there were tapes, they‘re going to be sealed and I doubt that they will leak out. We know the representations by Ms. Mackris. They appear to be very damaging. Based on what Fox thought, perhaps there was some truth to it all. They wanted to stop the blood flow, protect the brand of Fox News and Bill O‘Reilly...
GUILFOYLE NEWSOM: ... who does very well for them at that channel.
That was a business decision on their part. And hopefully...
DUNN: But that‘s the same thing...
ABRAMS: And you know what...
GUILFOYLE NEWSOM: Hopefully Ms. Mackris...
ABRAMS: ... and the difference is...
GUILFOYLE NEWSOM: Hopefully Ms. Mackris...
ABRAMS: ... very quickly...
ABRAMS: Robert, Robert, very quickly...
ABRAMS: Robert, very quickly, the difference between Michael Jackson...
ABRAMS: Hang on.
ABRAMS: Robert, big difference. Michael Jackson...
ABRAMS: Robert, hang on. Michael Jackson does not admit—he says it‘s all lies. It‘s all nonsense. Bill O‘Reilly has said I was stupid and has not made a comment one way or another about whether the allegations with regard to what he said are true. That‘s the big difference.
I‘ve got to wrap it up. I‘m out of time—Jeanine Pirro, Kimberly Guilfoyle Newsom, Robert Dunn.
“COUNTDOWN” with Keith Olbermann will have a lot more on this. See you tomorrow.
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