Guest: Mercedes Colwin, Bill Fallon
DAN ABRAMS, HOST: Coming up: what a year it‘s been. We look back at the biggest legal stories of 2004. Scott Peterson, after nearly five months of testimony, more than 180 witnesses and the now infamous Amber Frey tapes—jurors not only convicted him of murdering his wife and unborn son, they recommended he be sentenced to death.
And Martha Stewart didn‘t decorate Turkey Hill for the holidays this year. She may have just decorated her prison cell after jurors found her guilty of lying to investigators.
Plus, Kobe Bryant started out the year accused of rape and ended it free of criminal charges after his accuser backed out of the case.
The program about justice starts now.
Hi, everyone. On this docket Christmas Eve, a look back at the legal stories making news this year, from Scott Peterson to Bill O‘Reilly. We‘re going to look at each one in depth with a legal team that befits the day. But we begin with a quick look back at the headlines.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: State of California versus Scott Peterson. We the jury in the above entitled cause find the defendant, Scott Lee Peterson, guilty of the crime of murder of Laci Denise Peterson. We the jury further find the degree of the murder to be that of the first degree. Guilty of the crime of murder of baby Conner Peterson. The degree of murder to be that of the second degree. We the jury in the above entitled cause fix the penalty at death.
MARK GERAGOS, SCOTT PETERSON‘S ATTORNEY: Obviously, we‘re very disappointed. Obviously, we plan on pursuing every and all appeals, motions for new trial and everything else.
RON GRANTSKI, LACI PETERSON‘S STEPFATHER: They had no reason to doubt that it was Scott who did what he did, and he got what he deserved.
ROBERT MORELLI, ANDREA MACKRIS‘S ATTORNEY: He would talk sexually to her, tell her that he wanted to have phone sex with her and tell her, at one point, that he was the next time going to do it in person.
MARTHA STEWART, “MARTHA STEWART LIVING”: What was a small personal matter became over the last two years an almost fatal circus event of unprecedented proportions.
UNIDENTIFIED MALE: Why do you think she would make an allegation like that?
KOBE BRYANT, LOS ANGELES LAKERS: I‘m telling you, man, I swear on my life, I did not sexually assault her in no kind of way whatever, man.
MARK HURLBERT, EAGLE COUNTY, CO, DISTRICT ATTORNEY: The victim has informed us, after much of her own labored deliberations, that she does not want to proceed with this trial. And for this reason and this reason only, I am dismissing this case.
MIKE COX, MICHIGAN ATTORNEY GENERAL: Today‘s charge is the result in part of an eyewitness who reemerged to provide essential evidence against Mr. Watts after I appeared on the Dan Abrams report on MSNBC.
UNIDENTIFIED MALE: It is the sentence of this court that you serve life in prison.
(END VIDEO CLIP)
ABRAMS: All right, so we start with Scott Peterson. Two years ago today—today—that Laci Peterson was reported missing. Her husband, Scott, now stands convicted of murdering her and their unborn son, and the jury recommended that he get the death penalty. Those jurors, who listened to months of testimony, got to know Peterson, better than maybe a lot of his friends and family even knew him, through his own words, from sobbing in television interviews to lying to his family and friends and telling his girlfriend he‘d lost his wife and didn‘t want children. All of this before, immediately before, or shortly after, his wife went, quote, “missing.”
Those words are some of what got Peterson convicted. At least, that‘s what jurors told me after the verdict.
(BEGIN VIDEO CLIP)
RICHELLE NICE, PETERSON JUROR: Scott convicted himself. It was his lies. It was where the bodies washed up.
(END VIDEO CLIP)
ABRAMS: So was there anything his attorneys could have done to win this case or to save Peterson from the death sentence, or was this just a case that could not be won?
“My Take.” These jurors made it clear that a few months back, some were leaning towards an acquittal. And while you can‘t always take everything jurors tell you at face value after the fact, I believe them on this one. I had expected a hung jury and think under different circumstances—I‘m not just talking about the lawyering—Peterson might have gotten a hung jury here.
Let‘s bring in our legal team, MSNBC legal analyst and criminal defense attorney Roy Black, criminal defense attorney Mercedes Colwin, NBC News legal analyst and former New York state judge and prosecutor Judge Leslie Crocker Snyder and former prosecutor Bill Fallon.
All right, Judge Snyder, anything that you can see here that the defense could have, should have done differently that might have changed the outcome?
LESLIE CROCKER SNYDER, FORMER NEW YORK STATE JUDGE, NBC LEGAL ANALYST:
Well, one can never know that, of course, Dan, but I would certainly say that Geragos over-tried the case and over-promised at the beginning. We‘ve discussed this often on your show, so it‘s not really a new point. But I do think if he had tried it more as a reasonable doubt case than as, I‘ll prove his innocence—also, he was very arrogant at the beginning, very overconfident, although he was a great cross-examiner. So maybe a different attitude could have helped.
But I really always felt that even though it wasn‘t the strongest circumstantial case, that every little piece added up to the only reasonable explanation being Scott Peterson.
ABRAMS: Roy, anything they could have done differently?
ROY BLACK, CRIMINAL DEFENSE ATTORNEY, MSNBC LEGAL ANALYST: Oh, I certainly think so, Dan. I think it‘s typical with a lot of criminal defense lawyers—and I‘m not criticizing Mark Geragos here, but criminal defense lawyers are very good at cross-examination. That‘s their long suit. The problem is, many times they‘re not good at investigating and putting together a defense case. And I think what happened in Peterson‘s case is when the defense finally got to put on its case, there was either no case there or it was seriously damaged by the prosecution. And I think emotionally, as well as evidentiarily, that worked against Peterson.
ABRAMS: The defense experts were not what many of us thought that they would be, in many ways. But you know, I think it was Scott Peterson‘s words. Listen, I want to do a couple of these things. I‘m going to play what the piece of sound was and then show you the jurors‘ reaction. Here is the first one.
(BEGIN AUDIO CLIP)
AMBER FREY, SCOTT PETERSON‘S FORMER LOVER: How was your New Year‘s?
SCOTT PETERSON, CHARGED WITH DOUBLE MURDER: It‘s good. I‘m just—everyone‘s in the bar now, so I came out in an alley, a quiet alley. Isn‘t that nice?
FREY: Yes, it is. I can hear you.
(LAUGHTER)
FREY: Very good.
PETERSON: It‘s pretty awesome. Fireworks there at the Eifel Tower, a mass of people playing American pop songs.
(END AUDIO CLIP)
(BEGIN VIDEO CLIP)
GREG BERATLIS, PETERSON JUROR: Here‘s a gentleman standing prior to a vigil, speaking with his lover about how he‘s in France and carrying on this whole conversation, and this night, this—you know, it was supposed to be the night for his wife to get out there to the news. That spoke highly.
(END VIDEO CLIP)
ABRAMS: Bill Fallon, nothing that different lawyering could have done about that.
BILL FALLON, FORMER PROSECUTOR: Dan, I said from the very beginning that that was the killer. The week from the night he said—two years ago tonight, when he said to his mother-in-law, She‘s missing—who the heck says their wife not being home is missing? And then the way he acted, the narcissism that whole week, having such disregard for Conner and his wife, that was a sign of a murderer.
What the attorney could have done, No. 1 -- Leslie already said it. The promises were absurd in this case, and I think the jury—juries are now getting sophisticated. Guess what? They‘re not as impressed as we all think they are by great cross-examining. They‘re saying—we were all saying, Where‘s the beef on the prosecution side, at different times. They were saying, Where‘s the beef on the defense side? And I think that‘s what really did him in.
But the No. 1 reason this came back guilty is someone let Scott Peterson go on all those shows. It‘s not the Amber tapes, it‘s his pontificating about whatever it is about Scott (SIC) that he loved. That did him in.
ABRAMS: And here‘s another example of it.
(BEGIN VIDEO CLIP)
DIANE SWAYER, ABC NEWS: What kind of marriage was it?
PETERSON: God, I mean, the first word that comes to mind is, you know, glorious. I mean, we took care of each other very well.
BERATLIS: If everything‘s so perfect, why do you have to lie? Why do you? You lie—there‘s only one reason to lie, and that‘s to cover another lie.
(END VIDEO CLIP)
ABRAMS: And Mercedes, that‘s one of the jurors who told me that he was leaning towards an acquittal in June, even as the prosecution‘s case was a third done.
MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY: What did him in was, really, that the bodies washed up where he was fishing. I mean, that‘s really the bottom line, Dan. It‘s not Amber, not the tapes, or all the shows that he went on. The bottom line is, How come the bodies washed up in the very same location that you were fishing that day? And that‘s really what it was. And Geragos didn‘t put forth a hydrologist expert to explain why is it that these bodies were there. And having failed to do that, I think that‘s why the jurors started to...
(CROSSTALK)
ABRAMS: And Roy, he didn‘t address it enough in the closing argument, either. He didn‘t basically say what I thought he was going to say, which was, I know it looks bad. I can understand. Look, I can‘t explain it to you. I can‘t tell you who put the body there, but someone else did. And it‘s not my job to tell you who put it there, and focus on that a lot. In a way, he just tried to sort of gloss over it.
BLACK: Well, Dan, you‘re exactly right. It‘s like Ross Perot used to say, it‘s the crazy aunt in the basement. Every juror had their question in their minds. Why does the bodies show up where he was fishing? That was question No. 1 that had to be answered, and the defense never answered the question.
FALLON: But you know what? They could—Dan, he—they couldn‘t answer the question, and I think that they didn‘t—as we know from the quick verdict sentencing recommendation here, they hated this guy, and they had no reason to doubt it.
COLWIN: They did, but they could have answered that question, Bill.
ABRAMS: All right, let me just take a quick break here...
COLWIN: They could have...
(CROSSTALK)
ABRAMS: ... because that‘s what I want to talk about. I want to talk about in the sentencing phase—just—there‘s no way Scott Peterson could have testified in the guilt phase. But penalty phase, could he have, should he have? Did he make a mistake?
And Fox News host Bill O‘Reilly was accused of sexual harassment this year. A producer from his show, “The O‘Reilly Factor,” filed a lawsuit claiming he talked dirty, tried to lure her into phone sex and other steamy fantasies. He vowed to fight it, but then settled. Why?
Plus, Martha Stewart is spending this Christmas behind bars. Why did she decide to head to the big house rather than first fight the appeal her lawyers were saying they thought they could win?
Your e-mails, abramsreport@msnbc.com. Please include your name and where you‘re writing from. My response at the end of the program.
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
BERATLIS: I would have liked to have heard something out of his mouth, yes. Anything, a plea for his life or just his opinion on everything that went on in the last, you know, two years.
(END VIDEO CLIP)
ABRAMS: No question that some of the Peterson jurors who would have liked to have heard from the now convicted and condemned murderer, Scott Peterson. But would taking the stand in his own defense, even in the penalty phase, have saved him from death?
“My Take.” You know, I‘ve been thinking about this a lot. Scott Peterson could not testify in the guilt phase of the trial. I couldn‘t have said it more often. He would have been destroyed. But I wonder whether he could have, might have taken the stand in the penalty phase of this case.
Judge Snyder, I mean, I know that he would cause all sorts of trouble for himself if he wins an appeal and any statement he made could be used against him, but we also know that the chances of him getting a new trial are pretty slim. And it seems that, in a way, you got to do everything you can in that penalty phase to save your life.
SNYDER: Well, you know what? Dan, I don‘t really think it would ultimately have made a difference. And obviously, we‘re speculating.
ABRAMS: Yes.
SNYDER: But the jurors felt that they got to know him for many, many months, and they didn‘t like anything they learned. There was nothing redeeming. So what was he going to do on that witness stand, plead for his life? They pulled every sympathy string, and it really had no effect. The crimes were so heinous, I don‘t see that it would have made a difference and it would have created massive legal problems.
ABRAMS: Here‘s one of the...
COLWIN: Dan, here‘s the...
ABRAMS: Hang on a sec, Mercedes. Here‘s one of the jurors, Richelle Nice, talking about Scott‘s demeanor.
(BEGIN VIDEO CLIP)
NICE: A big part of it was, at the end, the verdict, no emotion, no anything. That spoke a thousand words. That was loud and clear.
(END VIDEO CLIP)
ABRAMS: Go ahead, Mercedes. I‘m sorry.
COLWIN: That‘s exactly what I was going to bring up. Strawberry Shortcake—I don‘t know her exact name...
ABRAMS: Yes.
COLWIN: But when she said that, she said he had absolutely no emotion. If he took the stand—here‘s something. Limit his—the scope of direct and simply say, Thank you for devoting your lives to this case.
I plead for my life. And start to say that, show some emotion. Start to -
· I mean, obviously, he‘s going to start to emote, and he may—he may get upset on the stand. He may start to cry. But at least something. And don‘t mention Laci...
(CROSSTALK)
SNYDER: Mercedes, you‘re assuming that he even could do that, that his personality is capable of it. And isn‘t it really too little, much too late? I don‘t really think it would have mattered.
COLWIN: Judge Snyder, you know...
(CROSSTALK)
COLWIN: And I would agree with you, except Paula Canny actually saw him during the penalty phase in his cell and talked to him, who‘s a defense attorney out on the West Coast.
SNYDER: Right. Right.
COLWIN: And she‘s been on your show, Dan, a bunch of times. She said he started to cry and he was so emotional because, you‘re right, that exterior is something you really have to crack.
(CROSSTALK)
ABRAMS: But Bill, let me ask, as a legal matter, if just he gets up on the witness stand and says, Look, I just want to tell you that I‘m sorry about this, I feel awful, blah, blah, blah, but I don‘t want to get into the details—can he do that, or can the prosecutors then say, No, no, no, no. You can‘t just decide what you‘re going to discuss, even if we‘re just talking about the penalty phase?
FALLON: Well, prosecutors can try whatever they want. He can still not answer their questions. That‘s certainly going to end him up in double death penalty row.
I think the thing about this, Dan, is he had the opportunity, but I don‘t think he‘s the person who could have done it. If he were able to say to this jury, You know what? Everything you saw was a lie. I did it. I got in. I am sorry. I‘m sorry to the Rocha family, I will tell you there would not be 12 people, if they saw any kind of compassion for that victim...
(CROSSTALK)
ABRAMS: That wasn‘t going to happen though.
SNYDER: That was never going to happen, though, Bill.
ABRAMS: That wasn‘t going to happen. So Roy Black, was there anything in between?
BLACK: That‘s a good question, Dan. Two things I would say about this that I thought were really somewhat interesting. This one juror says that he should have shown some emotion, but one of the other jurors said, I deliberately did not show emotion while sitting on the jury because I thought it would be inappropriate. Did anybody think perhaps Scott Peterson felt the same way? And secondly...
SNYDER: Oh, come on, Roy!
(CROSSTALK)
BLACK: ... Greek chorus that we have once you‘re in the middle. And secondly...
(CROSSTALK)
ABRAMS: Let‘s let Roy finish.
(CROSSTALK)
ABRAMS: Hang on, hang on, hang on!
(CROSSTALK)
ABRAMS: All right, all right, all right! Everyone disagrees with Roy on that. OK, Roy. Point two.
BLACK: Of course. That‘s why they‘re all wrong.
(CROSSTALK)
BLACK: We don‘t know what he could have testified because we don‘t know what he really wanted to say. You know, a defense lawyer doesn‘t go in and give a client a script.
ABRAMS: Yes.
BLACK: You find out what the client wants to say. So the only two people who know that are Peterson and Geragos. I‘m willing to bet Peterson wasn‘t going to say something that was going to save his life...
FALLON: Roy, I agree with you on that and...
(CROSSTALK)
FALLON: That‘s the important thing. And I think that that is—he is probably incapable. We were saying, hypothetically, if he were capable, if a person, maybe not Scott Peterson, but they could have...
(CROSSTALK)
ABRAMS: Judge Snyder, final thought on this, and I got to move on.
SNYDER: OK. The final thought—some defense attorneys do give their clients a script, Roy. Boy, your premises are all wrong!
BLACK: Thank God I never appeared in front of you, Leslie, when you were a judge, Leslie, because you seem a little cynical.
(LAUGHTER)
ABRAMS: All right. Let me take a quick break here. Coming up: Fox News host Bill O‘Reilly in the legal spotlight this year after one of his producers alleged that he had sexually harassed her. But he filed a lawsuit against her first. And after some of his pretty naughty alleged conversations were made public, he paid up, avoiding court.
And Martha Stewart‘s got just two months left on her sentence. Why did she decide to head to the slammer rather than fighting her appeal? Our special look back at the big legal stories of the year continues in a moment.
(COMMERCIAL BREAK)
ABRAMS: Fox News talk show host Bill O‘Reilly still standing this Christmas Eve after his lawsuit and counter-lawsuit with his former producer, Andrea Mackris. It started October the 13th, when Mackris sued O‘Reilly and Fox News for $60 million, claiming he sexually harassed her for years and citing alleged phone calls like this in her suit. Quote, “O‘Reilly suggested that Mackris purchase a vibrator and name it. It became apparent that defendant”—O‘Reilly—“was masturbating has he spoke.”
Now, O‘Reilly actually fired the first legal salvo with a lawsuit accusing Mackris and her lawyer, Benedict Morelli, of extortion. But after just two weeks of charges and countercharges, both sides agreed to settle. Mackris got an undetermined sum—in the millions, we believe—and O‘Reilly told his viewers this.
(BEGIN VIDEO CLIP)
BILL O‘REILLY, HOST, “THE O‘REILLY FACTOR”: This matter has caused enormous pain, but I had to protect my family, and I did. Some of the media hammered me relentlessly because, as you know, I‘m a huge target, as is Fox News. All I can say to you is, please do not believe everything you hear and read.
(END VIDEO CLIP)
ABRAMS: “My Take.” You don‘t settle for this kind of money if there‘s no merit to the case. It seems clear he must have said some, if not all, of what she alleged. But with that said, she got a pretty penny for dealing with a few lewd phone calls, particularly since she came back to work at Fox after she says he‘d harassed her the first time she worked for O‘Reilly. There are a lot of women who have to endure a lot worse and don‘t see anything like this kind of money.
All right. I‘m joined again by my panel. Judge Snyder, am I being unfair to one side or the other here?
SNYDER: Well, I mean, he is a target, in the sense that he‘s very controversial and he‘s, you know, a celebrity. But on the other hand, didn‘t we suspect that there were tapes and a lot more involved? I don‘t remember how that resolved itself, but I would believe that there was ample corroboration for some of the things she charged. Sure, a lot of women have dealt with a lot worse, but unfortunately, they don‘t have the same—for them, they don‘t have the same kind of target.
(CROSSTALK)
COLWIN: ... Dan, it was an economic decision.
ABRAMS: There‘s something about this, Roy, that troubles me. And that is the idea—I mean, look, let‘s assume everything in her allegations is—you know, all her allegations are true, that Bill O‘Reilly made these phone calls to her and that he said these naughty, nasty things to her on the telephone. How does that entitle someone to millions of dollars? I mean, why does someone have to settle for millions for a case like that?
BLACK: Well, Dan, let‘s be fair and balanced here. Clearly, a lot of pressure was coming from...
(LAUGHTER)
SNYDER: No pun intended!
BLACK: ... from Fox News for him to settle this. He is their biggest star. So I think a lot of this is a corporate decision, just like Martha Stewart. I think she went to jail as a result of a corporate decision. I‘m willing to bet O‘Reilly probably would want to fight this at least a little bit longer. On the other hand, as Leslie has intimated, if there were really tapes there, that may have driven the settlement.
ABRAMS: Well, look...
(CROSSTALK)
ABRAMS: Let‘s be clear here. Let‘s be clear. I mean, right after this broke on his radio program, O‘Reilly seemed to be conceding some of the underlying facts. Listen to this.
(BEGIN AUDIO CLIP)
O‘REILLY: This is my fault. I was stupid, and I‘m not a victim. But I can‘t allow certain things to happen. And I appreciate your support. We get thousands of letters. But I‘m not—I am stupid. I am a stupid guy. And every guy listening knows how that is, that we are very stupid at times.
(END AUDIO CLIP)
ABRAMS: All right, Mercedes, so it sounds—I mean, look, if Bill O‘Reilly was saying, None of this is true. I never said any of this—he‘s not a guy who‘d be shy to say it.
COLWIN: No, but I think that this—a few things. No. 1, it was an economic decision, no doubt. He would have lost advertisers. He would have lost a lot of money in the long run, so actually, contain the cost, contain the exposure and resolve it early on.
Secondly, what he‘s saying is he probably made himself vulnerable.
Even in the body of the complaint, Mackris said, I went back to his hotel
room. What if she had made allegations, having gone back to the hotel room
and they watched television, nothing happened, according to her admission,
and this is after she had left Fox, after she allegedly had been harassed -
· but that‘s what he‘s talking about, I left myself vulnerable...
ABRAMS: But she didn‘t make allegations beyond saying that they watched—you know, she‘s not saying that he sexually assaulted her or anything.
COLWIN: I know that, but that‘s what he‘s talking about, is leaving himself open and leaving himself vulnerable is extraordinarily foolish in this day and age.
(CROSSTALK)
FALLON: I took him saying, I‘m a guy, I‘m a pig.
ABRAMS: Right. Right.
FALLON: And that‘s exactly what...
(CROSSTALK)
FALLON: We‘re all guys, and we all know. We‘ve all made these decisions. Let me tell you, if he were pure—and it sounded like he—with the big offense, the best defense, good offense, whatever the expression—two weeks into it, there are tapes. There seem to be tapes, and the tapes must have made everybody not look so good. And yes, he‘s doing it for his family, and yes, it‘s a corporate decision. But guess what? He‘s a moral superiority kind of guy, and I think he was going to come out bad, and therefore, it was worth the millions and millions.
(CROSSTALK)
COLWIN: Wait, Bill! Where are the tapes, though?
(CROSSTALK)
ABRAMS: Let me let Judge Snyder...
(CROSSTALK)
ABRAMS: Leslie—hang on, hang on. Leslie, go ahead.
SNYDER: I just think there‘s something truly offensive in this day and age about a guy saying, Well, you know, guys are stupid sometimes. I mean...
FALLON: Leslie, I wasn‘t agreeing with that!
SNYDER: No, you were. I think you were agreeing with that.
FALLON: No, I think that‘s what he was saying, Leslie. I thin that‘s what he was trying to make an issue.
SNYDER: But I...
FALLON: And it‘s a bogus issue and it‘s Neanderthal.
SNYDER: It‘s a bogus issue, and frankly, it‘s an offensive issue because saying, like, All we guys are hung up about sex...
ABRAMS: All right, very quickly—Mercedes, quickly. A quick thought.
COLWIN: No, I mean, Frankly, I don‘t think—if there were tapes, we would have heard these tapes.
ABRAMS: No, we wouldn‘t have!
(CROSSTALK)
ABRAMS: That was part of the deal. Part of the deal was, Get rid of the tapes. I mean, they better not come out.
(CROSSTALK)
COLWIN: If those tapes existed, we would have heard them.
ABRAMS: Oh, I disagree.
(CROSSTALK)
SNYDER: That‘s why they settled.
ABRAMS: I disagree.
COLWIN: They—but they settled...
ABRAMS: If those tapes—if they...
COLWIN: ... a couple weeks into it, though.
ABRAMS: If those tapes had come out...
(CROSSTALK)
ABRAMS: If those tapes had come out, she would haven‘t gotten anything like the money she got.
SNYDER: And he would have been spinach.
FALLON: This wild and crazy guy would have probably...
SNYDER: He would have been spinach.
FALLON: ... had a burning party...
BLACK: Dan...
(CROSSTALK)
ABRAMS: Roy, what did you say?
BLACK: I said Keith Olbermann was willing...
ABRAMS: Yes, Keith Olbermann...
BLACK: ... to pay for those tapes. He made an offer.
ABRAMS: ... was willing to pay I think $99,000 if she would...
COLWIN: Hey, Dan, you...
ABRAMS: ... give Keith those tapes.
COLWIN: ... could have gone above that bid.
ABRAMS: Yes, I could have.
COLWIN: You could have gotten the tapes.
ABRAMS: I could have. But you know, I would have had to borrow from Roy Black to do it, so...
(LAUGHTER)
ABRAMS: All right, coming up, Martha Stewart spending this Christmas Eve behind bars after agreeing to serve out her five-month prison term while her lawyers work on her appeal. Did she really have to go to the big house so soon?
And it may have been the biggest criminal case this year that never made it to trial. With jury selection underway, Kobe Bryant‘s accuser dropped out of the case, leading the prosecution to drop the charge. We look at how and why the case (UNINTELLIGIBLE)
(COMMERCIAL BREAK)
(NEWS BREAK)
(BEGIN VIDEO CLIP)
MARTHA STEWART, “MARTHA STEWART LIVING”: Going to jail voluntarily, prematurely, before my appeal can be heard, is an extremely difficult decision, especially when you believe you have a very strong appeal and may not have to serve that sentence.
(END VIDEO CLIP)
ABRAMS: It has been almost three months—three months, can you believe it? -- Since Martha Stewart reported to a federal prison camp in Alderson, West Virginia. She‘ll be spending Christmas behind bars, convicted of conspiracy, obstruction of justice, lying to federal investigators. And you know, while some say she never should have been prosecuted for selling that stock, others say she never should have gone to trial at all, she should have swallowed her pride and taken a plea that would likely have allowed her to avoid prison time altogether. But there‘s that other question. Should she have gone to prison immediately, rather than waiting to finish her appeals?
“My Take.” Issue one, she would not have been prosecuted, I don‘t think, if she was not Martha Stewart. Prosecutors could have chosen not to prosecute at all. But issue two, she should have taken a plea because she was clearly guilty of the charge. And issue three, she made the right call, doing her time now, putting it behind her, rather than having it hanging over her head while she pursues long-shot appeals.
Roy Black, what would you have advised her, if she said to you, Look, I think we—you heard her say it there—I think we‘ve got good chances on appeal. I think we‘ve got good arguments here. Should I just put this behind me, or should I wait?
BLACK: Well, Dan, one of my real good friends, Marty Weinberg (ph), is one of the lawyers who worked on the brief, so I‘m pretty familiar with the issues in the case. I will tell you, if I was her lawyer, I would have said, Fight it. You know, you can always—there‘s always time to go to jail. I think you should fight it, try to clear your name. The problem is, by going to—and voluntarily going to jail, it‘s like an admission you‘re guilty. So I think you ought to fight it to the bitter end.
ABRAMS: And here‘s what she had to say about her reasoning for doing it.
(BEGIN VIDEO CLIP)
STEWART: The only way to reclaim my life and the quality of life for all those related to me with certainty now is to serve my sentence, surrender to the authorities, so that I can quickly return as soon as possible to the life and the work that I love.
(END VIDEO CLIP)
ABRAMS: You know, Bill Fallon, I said this before about the Peterson case, I‘ll say it again about the Martha Stewart case. I think to rely on the fact that you‘re going to win an appeal is dangerous business. Now, in this case, she could have just stayed out of prison and waited, but I think it was probably the right decision for her.
FALLON: It was definitely the right decision, Dan. First of all, she had civil prosecution which would come about in any event. There‘d be a retrial because it‘s such a famous thing of a famous person on the stock exchange.
And truthfully, you presume Mark Burnett from “Survivor” said, You know what, Martha? Go do it. Then we‘ll have our show. In fact, as I understand the show, when you get kicked off, rather than say, “You‘re fired,” like “The Apprentice,” they‘re going to say, You‘re jailed for 24 hours.
So I think that what you‘re going to see is—this is Martha really moving on, not just personally but financially, and she‘s going to come back bigger and stronger. And had she waited, there would have been this whole of, What are we going to be doing? Now we know what Martha‘s going to be doing when she gets out. She‘s going to be working on the show, and next fall, she‘s going to be in the show, which she would haven‘t had that luxury.
BLACK: Can you imagine what the world has come to now in our system of justice? Serve your jail sentence so you can get your reality show on TV?
(LAUGHTER)
FALLON: Absolutely, Roy!
COLWIN: But Martha will be martyred, though, Roy. You‘ve got to agree to that.
SNYDER: Exactly.
COLWIN: She is going to be martyred through all of this. I mean...
BLACK: She‘d be better off without a criminal conviction, though.
COLWIN: But so many folks did not even think she could have been prosecuted. I was one that championed for that cause. It‘s absolutely ridiculous...
(CROSSTALK)
ABRAMS: Judge Snyder, the problem that Martha Stewart has is even if she shouldn‘t have been prosecuted—and I‘ve said that I think that it was really questionable that they prosecuted her at all. With that said, she was guilty. And if she does get a new trial, I‘m telling you, she‘s going to get convicted again.
SNYDER: Well, I think there‘s a good chance of that, but I‘m a little skeptical of the reasons she gave. I think her decision to go to jail now was motivated commercially or by advice, in terms of the money and the future she would have commercially.
I also think I—this is one of the few times Roy and I agree. I can‘t imagine any defense lawyer counseling his or her client to go to jail now. There‘s always that perhaps rare chance that your case will be reversed on appeal. You never know what can happen. I don‘t really think it would have gotten worse because what often happens, if it‘s reversed on appeal, is you get a better plea or disposition, certainly, in the state system, not necessarily...
ABRAMS: But there‘s a psychological element, isn‘t there, Judge Snyder? I mean...
SNYDER: Well, sure.
ABRAMS: ... to say—you have to sit there and live with this every day, the idea that, I‘ve got to figure out—this way, you control it. You say, I‘m going to plan my prison sentence.
SNYDER: I think that‘s true, but I think that to say that there aren‘t a ton of defendants who would love to have that option and would stay out in the hopes that they would haven‘t to go in—I just think it defies human nature, to a certain extent, to go in when you might not have to.
FALLON: But isn‘t this a way, Leslie, of her pleading guilty? I took this as her way of saying, I am now accepting responsibility, which I haven‘t taken. Before this, it was a personal matter that got out of hand...
ABRAMS: I don‘t think so.
SNYDER: Oh, no. I don‘t think so at all.
(LAUGHTER)
ABRAMS: I didn‘t hear for a second—Mercedes, I didn‘t hear her once say, I‘m taking—and you heard—you heard the quote that we played...
COLWIN: Just the opposite.
ABRAMS: ... at the beginning of the segment. She‘s saying, Look, I still think we have strong appeals out there.
FALLON: But wait a minute, Dan. The average...
COLWIN: And I do think she does, though...
FALLON: ... person thinks she did say, I‘m going to jail.
COLWIN: You know, Dan...
FALLON: And I‘m doing what‘s right here. Even though I don‘t agree with it, I think that‘s...
(CROSSTALK)
COLWIN: No, Bill. I did not hear...
ABRAMS: That‘s not what I heard. Go ahead, Mercedes.
COLWIN: ... any acknowledgement at all. There was no acknowledgement at all that I‘ve done this, and mea culpa, and so I‘m going to serve...
FALLON: But Mercedes, nobody listens closely.
(CROSSTALK)
FALLON: She‘s taking her time, and everybody says, Wasn‘t it nice she moved on?
ABRAMS: I‘ve got to...
SNYDER: I think she‘s going to be like a martyr.
ABRAMS: I got to...
(CROSSTALK)
ABRAMS: I got to move it on. But you know, it‘s amazing. She‘s already more than halfway done with her sentence.
Coming up: Kobe Bryant started out the year accused of rape. He ended at the top his game on the court. Prosecutors who dropped all the charges against him get the assist.
And serial killer Coral Eugene Watts will spend the rest of his Christmases in prison, thanks to a viewer of this program who saw our story on how Watts was scheduled to get out—a confessed serial killer -- - in two years. The viewer called authorities to say he‘d witnessed Watts kill a woman, leading to another trial, a guilty verdict. Our look back at the year continues.
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
MARK HURLBERT, EAGLE COUNTY DISTRICT ATTORNEY: The victim has informed us, after much of her own labored deliberation, that she does not want to proceed with this trial. With the victim on board, we truly felt that we had a great case and that justice would prevail.
(END VIDEO CLIP)
ABRAMS: It was arguably the most anticipated trial of 2004 that never happened, Kobe Bryant supposed to face charges for sexually assaulting a hotel worker at a resort in Colorado until the criminal case crumbled in early September. Lawyers from both sides were already selecting jurors when the prosecutor announced that the woman was no longer willing to go forward with the trial and they were dropping the case. Since then, lots of evidence, including audiotape of Bryant‘s initial interview with police and transcripts of her interview with police, have been made public.
(BEGIN AUDIO CLIP)
KOBE BRYANT, LA LAKERS: I did have sexual intercourse with her.
UNIDENTIFIED MALE: OK. Was it consensual?
BRYANT: It was totally consensual.
UNIDENTIFIED MALE: What makes you believe—what makes you believe it was consensual?
BRYANT: Because she started kissing me (UNINTELLIGIBLE) then she bent over.
(END AUDIO CLIP)
ABRAMS: So the question, then, why did this case unravel? Because Bryant certainly made some inconsistent statements, at the least, on that tape.
“My Take.” This was a losing case for the prosecution. There were too many discrepancies, too many issues, ranging from mysterious DNA to the accuser admitting she had not told the whole truth to the authorities. With that said, Bryant also lied to authorities and her blood was on his shirt. This is a case better resolved in the civil courts, and I think it was best for everyone that this criminal case went away.
Roy Black, you long thought this case should go away.
BLACK: Yes, absolutely, Dan. And I will tell you, this case was dismissed because of outstanding defense work by the lawyers representing Kobe Bryant. I mean, I read all their pleadings. They were on line. I read a lot of the transcripts. You see the behind-the-scenes maneuvering and the strategy involved. They did an outstanding job, and I think they boxed the prosecution into a place where they thought also that they couldn‘t win the case and she thought that they couldn‘t win the case. And I thin that‘s the reason it was dismissed. And they‘re hoping for a better chance in the civil courts.
And I agree with you, I think it‘s better tried in the civil courts than the criminal court.
ABRAMS: Mercedes, what happens now? I mean, you‘re a civil lawyer, primarily. What happens now? I mean, do you think this case is actually going to go to trial in the civil courts?
COLWIN: I doubt it very much. I mean, they may go through depositions, so they‘ll have her examination under oath. They‘ll have Kobe Bryant‘s examination, as well. And I think, ultimately, post-depositions, there‘s going to be some settlement. It may not even get to depositions, at that point. They may just do—settle this case, Let‘s contain the exposure.
There‘s no need—even if we seal these, there‘s no reason why not just contain it and put together a settlement agreement that says, You cannot under any circumstances talk to the media, talk to others outside of your family. And you really constrain the confidential terms of the agreement.
SNYDER: You know, I think there‘s some points that should be made, though, Dan. Dan?
ABRAMS: Go ahead.
SNYDER: No. 1, this did grave disservice to the victims and the rape shield law. I‘m not saying the rulings were wrong, that—you know, I‘ve never studied all the sealed transcripts, most of which have been unsealed. But I think it discouraged victims tremendously. Even though bad cases make bad law, this was a bad case and...
ABRAMS: Whose fault is that?
SNYDER: I don‘t—well, let me get to the second point, which ties into your question. The prosecution once again totally outmaneuvered by the defense. The defense did a great job, I agree with Roy, but it‘s pathetic to see the prosecutors just unable to deal with it.
No. 3, the judge. The judge did not sit on the defense attorneys when he should have. Roy, just listen to me a minute. I don‘t think that, initially, when the attorney kept dropping this victim‘s name—I think it was deliberate. I think it was malicious. And her deliberate attempts to sully this victim in the press, which were very successful and helped ruin the prosecution, which wasn‘t a great case anyway, I agree, of course, and maybe shouldn‘t have been brought, I don‘t know—but the judge should never have tolerated some of the defense maneuvering. That‘s my view.
I...
COLWIN: I don‘t think it impacted the rape shield law, though.
(CROSSTALK)
COLWIN: And I am pretty adamant about this, Judge Snyder. You know, I think the world of you. But let‘s look at it this way. There‘s a balancing act here. You have to balance the victim‘s rights and you have to balance...
SNYDER: I agree with you.
COLWIN: ... the defendant‘s rights...
(CROSSTALK)
FALLON: Mercedes, I guess I‘m the only one here who can say, having reviewed literally thousands of rape cases and prosecuted and supervised hundreds of them, I am telling you to go back a year or two in a woman‘s sex life—I‘m not talking about what happened the night on or around, the week, whether or not any evidence was going to be in that kit. That is what discourages victims, that anybody could sit there and have a judge or anybody else here—Who did you go out with a year ago?
COLWIN: Bill...
FALLON: Did you have sex?
(CROSSTALK)
ABRAMS: Let‘s be clear. The ruling here, though, was that they could only look at the 72 hours. Bill, you‘re saying even the pretrial hearings to determine what was out there?
FALLON: Absolutely, Dan!
SNYDER: Everything. The whole...
(CROSSTALK)
FALLON: I never heard anybody suggest that you could go back a year. That is Neanderthal. If we thought that Bill O‘Reilly was Neanderthal, this judge in that ruling is—it‘s just amazing...
SNYDER: Everything...
COLWIN: Bill...
(CROSSTALK)
ABRAMS: Hang on. Hang on.
COLWIN: Dan, can I just respond...
(CROSSTALK)
FALLON: It‘s impossible for victims to come forward...
ABRAMS: Mercedes, very quickly...
(CROSSTALK)
FALLON: No matter what you think of this, they‘re not coming forward.
COLWIN: It was not about—no one cares if she was—she went and slept with 10,000 men.
FALLON: The judge seemed to!
(CROSSTALK)
COLWIN: But what it was, is this...
SNYDER: Not the point.
COLWIN: ... is causation, whether those injuries were caused by Kobe Bryant, and that‘s the bottom line.
FALLON: Not a year ago!
(CROSSTALK)
COLWIN: The ruling was very clear.
ABRAMS: Roy Black, that‘s...
COLWIN: It was 72 hours.
ABRAMS: That‘s not the point Bill is making. The point Bill is making is that even the inquiry into what about her sex life in the past should be admissible, when you‘re asking her to come into court and testify about her sex life for the past year or two years, he‘s saying is going to discourage people from bringing these cases.
SNYDER: When we wrote the...
BLACK: Well, Dan...
(CROSSTALK)
ABRAMS: Hang on. Let me let Roy respond real quickly, then I get the final word..
BLACK: Dan, the problem is people are talking in cliches. First of all, they keep labeling her a victim. Even the judge said—finally ruled you could not do that because it hasn‘t been proven.
Secondly, the reason we have a rape shield law is to have pretrial hearings in camera to determine whether or not this ought to be admissible. The law worked as it should have worked. The judge ruled only those things within the 72 hours which could have caused the physical injuries can be admissible.
ABRAMS: All right...
BLACK: The law worked properly and...
ABRAMS: Leslie, very quickly, though...
(CROSSTALK)
ABRAMS: Leslie, very quickly on Bill‘s point. Go ahead.
SNYDER: No. I mean, I wrote the rape shield law in New York...
ABRAMS: Yes, I know you did.
SNYDER: ... with another woman, and it does have to be fairly balanced. And Bill, I happen to agree with you, but it‘s not so much that the sealed proceedings were necessarily improper, it was that the defense leaked everything. Everything got out. The court managed to push the wrong buttons all the time. So the whole way the case was handled gave the perception to victims that their rights would never be protected.
FALLON: Absolutely. I agree with you, Leslie.
ABRAMS: All right. Coming up: He admitted killing at least 13 women, but he had never been convicted of murder, he was set to get out of prison in two years until a viewer saw his story on this program. Now serial killer Coral Eugene Watts will spend the rest of his life behind bars. Continuing our look back at 2004.
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
MIKE COX, MICHIGAN ATTORNEY GENERAL: Today‘s charge is the result, in part, of an eyewitness who reemerged to provide essential evidence against Mr. Watts after I appeared on the Dan Abrams report on MSNBC.
(END VIDEO CLIP)
ABRAMS: Michigan attorney general Mike Cox talking about how this show helped put away Coral Eugene Watts for good, one of America‘s most notorious serial killers and most prolific, who some believe murdered more than Ted Bundy and John Wayne Gacey combined. We first brought you the story back in January. We couldn‘t believe to hear that Watts, who confessed to killing 12 women in Texas and one in Michigan, was set to be freed from prison. There wasn‘t any physical evidence linking him to any of his murders, and he got in immunity in a bizarre plea-bargain deal in the ‘80s.
I was so outraged, I gave out a number for anyone who had information about any of his other murders. One of our viewers did. Joseph Foy came forward immediately. Watts went to trial. Foy pinned him as the man he saw kill Helen Dutcher 25 years ago in suburban Detroit.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: (UNINTELLIGIBLE) I‘d ask that Mr. Watts take off his glasses at this time, if the court would allow it.
UNIDENTIFIED MALE: He may.
UNIDENTIFIED FEMALE: Mr. Foy, do you see the person that you saw that night in this courtroom today?
JOSEPH FOY, PROSECUTION WITNESS: Yes, I do.
UNIDENTIFIED FEMALE: OK. And would you please point to him ask describe what he‘s wearing?
FOY: Be the gentleman over there—blue vest, blue shirt, glasses in his hand.
UNIDENTIFIED FEMALE: Does he look the same today as he did then?
FOY: Eyes do.
(END VIDEO CLIP)
ABRAMS: The jury ultimately convicted him of the murder, and thanks to Joseph Foy and the victims‘ families, Coral Eugene Watts will now spend the rest of his life in prison without the possibility of parole.
“My Take.” It‘s moments like those that make my job worthwhile. If we had not taken such interest in this case, it might never have been solved. Now, let‘s be clear. The credit goes to the victims‘ families for never giving up, to the state of Michigan and the attorney general‘s office, and of course, to Mr. Foy, that witness who happened to watch our show. Just to know we brought them together is more than enough for me.
Judge Snyder, you ever seen a case like this where a serial killer confessed and is about to walk out of prison?
SNYDER: No. Absolutely outrageous and reflects very badly on the criminal justice system. What kind of deal? Although at the time, they thought he‘d stay in, early release laws apply to this situation? The whole thing is crazy. But it is a real tribute to you and MSNBC that you actually ended up being responsible for this being, you know, solved. So it‘s great.
ABRAMS: Very quickly, Mercedes. He had the gall, though, to stand up
· this is a guy who‘s confessed—he says, Well, this isn‘t one of the ones I really did kill.
COLWIN: It was unreal. And actually, I had watched—I covered it, a live feed of the trial, I covered it. And I watched these victims. What did him in was those victims took that stand. And I tell you, it was heart-wrenching. And they described in detail—now, these are women that were attacked decades ago—on how he had assaulted them. There were three victims that testified. And that‘s what did him in. I mean, these women just broke down in tears, and they say, He haunts my dreams daily.
ABRAMS: All right, I...
COLWIN: And that‘s the...
ABRAMS: I got to move on. I got to move on from this one. Everyone‘s going to stick around. When we come back in 60 seconds, I ask what the legal story of the year was, either one we‘ve mentioned or not.
(COMMERCIAL BREAK)
ABRAMS: All right. So Roy Black, what was the legal story of the year, as far as you‘re concerned?
SNYDER: OK. Can I...
BLACK: Well, Dan, I have a little bit of a different take on this than just the legal story of the year. First of all, I want to congratulate you for the Coral Watts case.
But secondly, I want to show that the power of this medium can be used, I think, for purposes that are not quite so good. Another network, not this one, that devotes itself to courtroom trials looked like they were leading a lynch mob in the Scott Peterson case. I mean, I watched them a number of times during the trial, and I thought that they were putting together a lynch mob, rather than doing dispassionate commentary...
ABRAMS: And that‘s the story of the year...
BLACK: ... about the trial.
ABRAMS: The story of the year for you is the lynch mob mentality at Court TV. All right. Judge Snyder?
SNYDER: Well, I think the fact that you and your program could bring that horrible a serial killer to prosecution is really, probably, again, the power of the medium used in a good sense. That‘s really the legal story of the year.
ABRAMS: Mercedes?
COLWIN: I couldn‘t agree with you more. Honestly, Judge Snyder. And I think it‘s right, Dan. Kudos to you and your team because that was incredible. And I think a lot of people are sitting at their homes feeling much safer.
ABRAMS: Bill?
FALLON: I said it on your show...
ABRAMS: You can give a different answer, if you want.
(LAUGHTER)
FALLON: I certainly will. You might be gold, frankincense, myrrh and Abrams...
ABRAMS: Yes!
(LAUGHTER)
FALLON: ... but in any event, what I‘m saying here is the supreme judicial court of Massachusetts—one judge helped elect President Bush, and I said that their gay rights decision, they‘re overreaching, when they could have let with civil unions. On your show I said that. And I—this‘ll be the death of John Kerry‘s candidacy. And guess what? It has—the overreaching of the judges is going to have a far effect because we‘re going to have three or four judges now appointed by President Bush. Whether you like it not, this was...
ABRAMS: Bill...
FALLON: ... judges making a decision...
ABRAMS: Bill‘s closing argument.
(CROSSTALK)
(LAUGHTER)
ABRAMS: All right. I‘m out of time. I say, for us, it was also the Watts case. Serial killer set to be free. If we can help put him behind bars, certainly the most important story to me. Great panel. Thanks a lot.
That does it for this Christmas Eve edition of the program. Roy, Mercedes, Leslie and Bill, thanks a lot. See you (UNINTELLIGIBLE).
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
END
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