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'The Abrams Report' for Dec. 31

Read the transcript to the 6 p.m. ET show

Guest: Jeanine Pirro, Joe Tacopina, Paul Pfingst, Robert McNeil

DAN ABRAMS, HOST:  Coming up, if you think this year was chock full of big legal stories just wait until you see what‘s on the docket for 2005.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  After the judge refuses to delay Michael Jackson‘s case, he‘s scheduled to go to trial on January 31, accused of molesting a young boy and supplying him with alcohol.  Is there really a chance Michael Jackson could be heading to prison in the year to come?

And Kobe Bryant got out of criminal charges of rape, but now may face his accuser in a civil court where both their sexual histories are fair game.

Plus, the jury spoke and now the judge in the Scott Peterson case will have to decide whether to impose the jury‘s recommendation of death.  The judge has the power to change it to life in prison, but would he do that?

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  And on this New Year‘s Eve, we‘re taking a special look ahead to the big legal stories we‘ll be covering in 2005.  First up on the docket, The People v. Michael Joseph Jackson.  You know we talk about this case in a vacuum, but Michael Jackson behind bars?  It is difficult to picture.  This round of trouble for Jackson began almost two years ago after he appeared in a now infamous documentary.  He‘s holding hands with a 12-year-old boy, defending in part his practice of sleeping in the same room, same bed with children.

(BEGIN VIDEO CLIP)

MICHAEL JACKSON, ENTERTAINER:  Why can‘t you share your bed?  It‘s the most loving thing to do is to share you bed with someone.

(END VIDEO CLIP)

ABRAMS:  Eight months later authorities raided Jackson‘s Neverland Ranch.  He was arrested for molesting that very same 12-year-old boy who was sitting with him in the video.  We quickly learned even that wouldn‘t take the dance out of Michael, as he proved right after his arraignment.  Then in April, the authorities up the ante.  A grand jury returned an indictment, not just on child molestation for allegedly  -- also for allegedly giving alcohol to a child, but conspiracy to kidnap the boy and his family as well.

Early this month, investigators swarmed Jackson‘s Neverland Ranch again searching for more evidence, even swabbing Jackson‘s mouth for a DNA sample.  The trial now set to begin a month from today on January 31.  It could last as long as five months.

“My Take”—if the prosecutors are allowed to call in other now men who will say they were abused by Jackson, particularly those Jackson paid as part of a settlement, that could be big trouble for Jackson.  But the ultimate issue in this case will be the credibility of the boy and the other eyewitness—I generally hate eyewitness testimony, but in this case it will be crucial.

We are joined by an all-star holiday legal team—Westchester County New York district attorney and former judge, Jeanine Pirro, former San Diego D.A. and MSNBC legal analyst, Paul Pfingst, criminal defense attorney Joe Tacopina, who actually represents one of Jackson‘s former employees, an un-indicted co-conspirator in this case, and California defense attorney Bob McNeil.

All right Jeanine...

(CROSSTALK)

ABRAMS:  ... as we look forward to this case, what do you think is the most important thing for the prosecutors?

JEANINE PIRRO, WESTCHESTER COUNTY D.A.:  Well, I think the credibility of the young boy in this case, Dan, is extremely important and all the prior bad acts that the prosecution will bring out regarding other possible victims of sex offenses are certainly relevant and will set the frame work and the context with in which this happened, but there is no question that this 12-year-old cancer survivor is the most important element of the case.  And it is interesting, Dan, to hear you say you don‘t like eyewitness testimony and that really is because circumstantial evidence is so much stronger.  But in a child sexual assault case, that testimony must be believed or the case doesn‘t move.

ABRAMS:  You know, we talk about conspiracy here and that is really important because that involves not just the boy himself but other people who are going to say, oh, Jackson‘s team were responsible for effectively planning to keep them there, et cetera.

Here is what Tom Mesereau, Jackson‘s attorney, had to say about sort of false imprisonment and the conspiracy—there it is.  The idea that they were imprisoned and force to fly on private jets to Florida to socialize with celebrities such as Chris Tucker is absurd on its face.  It would be laughed out of court by a jury.  Joe, laughed out of court?

JOE TACOPINA, ATTORNEY FOR JACKSON‘S FORMER EMPLOYEE:  Well based on what I know about the conspiracy accusations, yes, laughed out of court, Dan.  I mean you know, you mentioned my involvement in the case and my representation of Frank Tyson who according to the mother in that hearing that she did about two months ago, you know, was Michael‘s lead henchman.

Frank, you know, standing about five feet tall, weighing 110 pounds, you know, by all accounts and there‘s documentation—I‘ll back up what I‘m going to say—by all accounts was a good friend to this mother, someone she really relied on.  And you know, the notion that like when she was on Rodeo Drive, you know, going shopping at the cost of Michael Jackson, you know, going into (UNINTELLIGIBLE) or something like that, if she felt kidnapped or held against her will, she could have told the store manager on Rodeo Drive, help me, help me, my family is being held against my will.

But she, you know, had the purchase made, went back home—the receipts back it up.  The conspiracy charge, Dan, to me, you know, is—I think it‘s telling that the district attorney, Sneddon, did not actually charge with Michael Jackson, the un-indicted co-conspirators because what it allows him to do strategically is get into evidence that otherwise would not be admissible, because of the conspiracy laws, but he doesn‘t have to prove it.  He can let it go un-rebutted...

ABRAMS:  Paul...

TACOPINA:  ... and that sort of backs up...

ABRAMS:  ... what about that?  What about the fact that these other co-conspirators—and if we can put them up—the fact that they haven‘t been charged in this case.  Some would say that that demonstrates a vendetta on the part of the prosecutors here to get Michael Jackson, the fact they are not indicting all these other people who are supposedly co-conspirators with him.

PAUL PFINGST, FORMER SAN DIEGO COUNTY D.A.:  You know, the idea that you need to have a vendetta in order to get someone who has been accused in the past and accused now of child sexual abuse just blows my mind.  The fact of the matter is there is good reason before this case to suspect Michael Jackson of child sexual abuse and those cases were settled for monumental dollars.

And when Michael Jackson himself goes on television and says he‘s sleeping with children, what is a prosecutor supposed to do in that jurisdiction except do an investigation and find out whether he‘s molesting those children.  If he did not do that, Tom Sneddon would not be doing his job.  To claim a vendetta is just totally out of balance.  We all saw the victim you just played, Dan, with Michael Jackson talking about sleeping with kids.  This is what Tom Sneddon has to do.

TACOPINA:  That‘s not what he‘s charged with, though, Paul.  And the vendetta claims don‘t come from the fact that he charged Michael Jackson.  It comes from the fact that he‘s done personal surveillance.  No district attorney that I‘ve ever come across including...

PIRRO:  Joe...

TACOPINA:  ... the great one on the set...

PIRRO:  ... not true.

TACOPINA:  ... you have not done personal...

PIRRO:  Let me tell you something Joe...

TACOPINA:  ... do not go with the...

PIRRO:  ... there are a lot of D.A.s who are hands on...

TACOPINA:  Yes.

PIRRO:  ... and to claim that because Tom Sneddon is doing his job...

(CROSSTALK)

PIRRO:  ... job is ridiculous.

TACOPINA:  Police do personal surveillance...

(CROSSTALK)

TACOPINA:  Police do surveillance, not district attorneys.

ABRAMS:  All right.  Let me ask Bob McNeil—Bob, let me play you this piece of sound, all right, because this I think the defense could say suggests that, you know, this wasn‘t Jackson‘s team forcing this woman, the mother to do anything, to say anything.  This is when DCFS, the Department of Child and Family Services came over to the mother in this case, the mother of the young boy‘s house to talk to them about was there anything wrong, were there any problems, she is working with it seems a Jackson representative to tape record this entire conversation that they have.  Listen.

(BEGIN AUDIOTAPE)

JACKSON INVESTIGATOR:  This is the tape recorder.

MOTHER:  OK.

JACKSON INVESTIGATOR:  All right, so it won‘t be suspicious, I‘m just going to put it here.

MOTHER:  OK.

JACKSON INVESTIGATOR:  Just need a place to put it when they are interviewing you.  You don‘t have to do nothing.  It‘s working.  You just need a place—I don‘t know what you want to do.

MOTHER:  OK, I‘m going to put it right here.

(END AUDIOTAPE)

ABRAMS:  How big a deal, Bob, when it comes to the conspiracy charge?

ROBERT MCNEIL, CRIMINAL DEFENSE ATTORNEY:  Well, you know, this really goes to the credibility of bringing those kind of charges if, in fact, there is some hard evidence that will show that the alleged victims were not really kidnapped, that there was no conspiracy to do this, and you‘re going to have to look at the mother‘s credibility, you can look at the boy‘s credibility and his brother‘s credibility.  You know, this case ultimately, not withstanding the fact they may successfully get in some other crimes of evidence, the case really has to stand on it own because, you know, he‘s not charged with these other crimes and there can be no conviction in those cases.  Only in the present case whether it‘s conspiracy or child molestation.

ABRAMS:  Well here‘s what I want to do—I want to take a break because I want to talk about those past allegations of sexual abuse, because I think they‘re going to become crucial.  Some of the kids settled for millions of dollars and they‘re going to be coming in and saying, yes, here‘s what happened to me or not.

And he may be free of the criminal charges, but will Kobe Bryant still face his accuser in a civil court?  It sure looks that way as of now.  And both of their sex lives could become a front and center issue.

And in less than two months, Scott Peterson will face the judge possibly, probably for the final time to receive his sentence.  The judge not legally obligated to follow the jury‘s recommendation of death.  Could he change it to life in prison?  It wouldn‘t be the first time it‘s happened.

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, they‘ve raided Michael Jackson‘s Neverland Ranch not once but twice.  Our look forward to the cases we‘ll see in 2005 continues.

(COMMERCIAL BREAK) 

(BEGIN VIDEO CLIP)

THOMAS MESEREAU, JACKSON‘S ATTORNEY:  Many years ago he did pay money rather than litigate two false allegations that he had harmed children.  People who intended to earn millions of dollars from his record and music promotions did not want negative publicity from these lawsuits interfering with their profits.

(END VIDEO CLIP)

ABRAMS:  That was the music companies and not Michael Jackson who settled those cases.  That‘s Jackson‘s attorney, Tom Mesereau, on his client‘s past out-of-court settlements.  It‘ll be the focus of a hearing actually in early January.  Prosecutors hope to introduce information about other incidents where Jackson allegedly molested boys.  They are hoping to show a pattern of behavior.

We continue with our coverage of the trials of 2005.  You know, Paul Pfingst, I hear that kind of excuse, and that‘s what it is.  And I‘m not saying this makes Michael Jackson guilty in this case, but to suggest that you settled for $20-plus million because a record company told you to do it and because they didn‘t want their profits hurt, you know, to me that‘s—of course it‘s insulting to the record companies, but who cares about that.  It just sounds so dishonest.

PFINGST:  It doesn‘t pass the smell test for anybody in the country and it won‘t pass the smell test if it comes down in front of a jury.  The single most important motion that is going to happen before the start of Michael Jackson‘s trial is whether and how much of these prior incidents the D.A. can introduce.  If the D.A. can introduce the whole episodes and have those victims up on the stand talking about what happened to them, then Michael Jackson is in a lot of hurt.  If the D.A. is not allowed to enter those...

ABRAMS:  Yes.

PFINGST:  ... and there‘s no certainty that they will.  A judge could say these are not coming in.  Then Michael Jackson‘s chances of beating this improve drastically.

ABRAMS:  You know, Tom Mesereau—I‘ve got to tell you, Tom Mesereau is one of my favorite attorneys to watch.  I think what he did in the Robert Blake case is one of these things that deserves an enormous amount of credit before Blake foolishly fell out of favor with Mesereau, but here‘s Mesereau talking again about this issue about Jackson and explaining away why he paid at least two boys off.

(BEGIN VIDEO CLIP)

MESEREAU:  Michael Jackson now regrets making these payments.  Nevertheless, these efforts to settle are now being used against him regardless of the merits or the truth behind them.  These settlements were entered into with one primary condition.  That condition was that Mr.  Jackson never admitted any wrongdoing.

(END VIDEO CLIP)

ABRAMS:  All right.  So Bob McNeil, he entered into them and the legal, technical agreement was, we don‘t agree to any wrongdoing.  We‘re not admitting any wrongdoing.  But, I‘m sorry, when you pay $20-plus million to someone to come out and suggest oh it was the record companies, oh, it was this, oh it was that, I mean is the claim from the defense here Michael Jackson was completely innocent of—there was nothing even arguable about these claims and yet, you know what, he decided to pay $20-something million just to make it go away.

MCNEIL:  Well, I really believe Dan that you have got a very good point, but please look at it from the other side, from the defense side just for a moment.  And that is when a complaining victim, an alleged victim, accepts money in lieu of prosecuting, there‘s a question about the credibility and motivation of that complaining victim...

ABRAMS:  But what motivation do they have now to lie?

MCNEIL:  Well...

(CROSSTALK)

MCNEIL:  ... you know, the thing of it is—no, the thing of it is, is when they come out now—excuse me—and come into court, and now want to tell their story...

ABRAMS:  Yes.

MCNEIL:  ... you still—you‘re dealt with—you know, you‘re still dealing with a situation where they may have made inconsistent statements earlier.  Why didn‘t they prosecute 20 years ago?  Their memories are also faulty now.  I mean there are going to be some real problems with this...

ABRAMS:  But...

MCNEIL:  ... in addition to the fact that they took the money.

ABRAMS:  It seems to me, Jeanine, they had a lot more credibility to lie a long time ago—they have already gotten the money.

PIRRO:  That‘s exactly right.  They‘ve gotten the money.  They‘ve got no reason to lie right now.  And to talk about their memory being lapsed because of the passage of time, no one remembers a sexual assault event more than the victim himself.  And make no mistake—this 1108 evidence application that Tom Sneddon is making reflects not just the allegations of prior sexual abuse, but the fact that pedophiles or people who want to have sex with children are repeat offenders.

These are recidivists.  They‘re going to do it over and over again.  So the history of prior bad acts is more relevant than it‘s ever been.  And to tell you, Dan, I don‘t care if they paid $20 million.  It doesn‘t look good for him, we all know that, but we‘re in the best of both worlds because right now these victims have no reason to come forward...

ABRAMS:  Right.

(CROSSTALK)

ABRAMS:  But Joe, they could turn this, could they not, and say let‘s assume for a minute that he did something that led him to pay these two cases and there he is sitting with the very boy on television that the prosecutors are going to say that he abused later.  In a way, the defense could say, you know, come on.  You think Michael Jackson is going to abuse the very boy he goes on television with to demonstrate that he‘s not abusing children?

TACOPINA:  Exactly right.  And the timing of these charges, I think, are going to be so relevant because of the timing of the investigation and don‘t forget there was initially a point in time where, Dan, where some of the charges are alleged to have occurred after an investigation was done and after an investigation occurred, which is...

ABRAMS:  Yes.

TACOPINA:  ... I mean makes it more asinine even to consider that.  But let me just say this.  As far as those other charges, those past acts, and that hearing comes on January 12, Dan.  That is a crucial hearing in this trial.  It will determine if this is a...

ABRAMS:  Yes.

TACOPINA:  ... you know a conglomerate trial or you know a narrow trial.  And I‘ve got to say this—the one thing that‘s common about these two victims, alleged victims is they have the same sort of team that the current set of victims have.  Same psychologist, same plaintiff‘s lawyer and you know what?  It could—the defense could find a little silver lining in that and showing that this is—it‘s like the same package of people that are coming forth with the same sort of claims...

ABRAMS:  Yes...

TACOPINA:  ... the same lawyer, same psychiatrist...

PIRRO:  Dan...

(CROSSTALK)

ABRAMS:  I got to wrap this up.  But you know, yes, I think that will come up, but I don‘t know if that‘s going to necessarily—I mean they‘ve got to be able to show they were the only ones who were responsible for this coming to trial.  It will be interesting.

Coming up, Kobe Bryant expected to be back in court next year to go one-on-one with his accuser in a civil court this time.  She filed a suit right before she dropped out of the criminal case.  And she said she lost faith in the court system.

And does Saddam Hussein have any idea that some of his cronies either have or will turn on him?

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  It was a victory of sorts for Kobe Bryant back in September and prosecutors dropped criminal charges against him.  His accuser deciding not to testify after apparently struggling on the stand during a mock cross-examination.  And while Bryant signed a statement of apology that same day, he has always maintained his innocence.

(BEGIN VIDEO CLIP)

KOBE BRYANT, ACCUSED OF SEXUAL ASSAULT:  I‘m innocent.  You know, I didn‘t force her to do anything against her will.

(END VIDEO CLIP)

ABRAMS:  But now Bryant is preparing herself for the biggest second half of his life, the civil trial.  The accuser‘s lawyers told us they will go after him hard.

(BEGIN VIDEO CLIP)

VOICE OF LIN WOOD, KOBE BRYANT ACCUSER‘S ATTORNEY:  I‘m of mind that she‘s only going to be treated fairly in a civil case where the playing field is level and Mr. Bryant‘s life will be scrutinized.

(END VIDEO CLIP)

ABRAMS:  While Bryant could invoke his constitutional right to remain silent during the criminal trial, now all bets are off.  He will probably be questioned, deposed.  He‘ll have to answer some very personal questions in preparation for the civil case.  His lawyers have already asked to have his confidentiality protected.  The woman is scheduled to give her side of the story during sworn testimony on February the 1st.

“My Take”—I said the criminal case would have ended in an acquittal.  Not so sure about the civil side.  The woman will have some of the same credibility and DNA problems she had in the criminal case.  With her blood on his shirt and his inconsistent statements, the woman could have a real shot here, although it all comes down to how a good witness she is going to be.

Paul Pfingst, is this going to go to trial?

PFINGST:  I don‘t think so.  This is the—just the type of case that almost always settles and would likely settle right before Kobe Bryant would have to give a deposition.  What we don‘t know is whether or not Kobe Bryant has had other types of sexual encounters with other women that would be extremely damaging to him not only personally with his family, with his wife, but also for his endorsements and other type of things.  And that‘s an awful powerful motivation to settle a case.  And that‘s what usually happens in these cases.

ABRAMS:  Yes, but Joe, I think that there is a great motivation to settle this case, but I think it‘s going to come down to the numbers.  I mean I think both sides want to settle this case, but I think that these plaintiffs are looking at a much higher number than Bryant‘s team are willing to agree to.

TACOPINA:  Yes, absolutely, Dan.  That‘s exactly what it‘s all about.  Because you know, when they—when the criminal case was dismissed, Bryant came out and made a statement that almost seemed—it was an apology, quite frankly, and seemed like they had reconciled some differences and it looks like the civil case was on its heels to settle and then now we‘re posturing again for trial.

I have to tell you.  I—the reason that the woman pulled out of the criminal case is not because she didn‘t want her background exposed.  If she goes to trial in a civil case, it will be exposed just as much if not more, but here‘s what happens.  If she got—if there was an acquittal in the criminal case, which I agree with you, I believe they were headed in a very fast way to that, it would have destroyed the civil case.  I think destroyed it almost all together because she would have been publicly and nationally known as someone who was not accepted as credible by a jury.

ABRAMS:  Yes.  Yes.  No, I think Joe is absolutely right Jeanine.  Jeanine, here‘s the problem that the plaintiffs have here.  In Colorado—put up number eight here—civil juries can only award damages of up to $366,000 for pain and suffering.  The total amount a plaintiff can win is about $2.5 million.  Any way they‘ll be able to possibly move this case to California?

PIRRO:  I wouldn‘t be surprised if the plaintiff female tries to move it to California.  There is a higher—there is no, you know, limit in terms of...

UNIDENTIFIED MALE:  Right.

PIRRO:  ... the amount of damages.  And I got to tell you Dan, this case will not go to deposition.  Kobe Bryant has too much to lose, but...

ABRAMS:  How much then?  How much?  How much is he going to pay?

PIRRO:  You know, I can‘t imagine—not a civil lawyer.  But I would think in the double digit millions...

ABRAMS:  Whoa.

PIRRO:  You‘ve got—no...

ABRAMS:  Double digit millions.

PIRRO:  Hold on guys, and I‘ll tell you why.  You have got a guy here who‘s got a history, who‘s got a future for endorsements in basketball.  He‘s got a lot to lose if this comes out.  And for the first time, we‘ve got a level playing field.

(CROSSTALK)

PIRRO:  Everything we learned about her...

ABRAMS:  But Bob...

PIRRO:  ... we can now learn...

ABRAMS:  Yes, but Bob McNeil...

(CROSSTALK)

ABRAMS:  ... Bob McNeil, everything has already come out, though.  I mean I can‘t...

PIRRO:  Not about him.

ABRAMS:  Maybe not a lot, but a lot of it has.  I mean the tape of the interview with police where he made inconsistent statements...

PIRRO:  But not...

ABRAMS:  ... that‘s out.

UNIDENTIFIED MALE:  Dan...

ABRAMS:  Go ahead Bob.

MCNEIL:  Dan, you‘re exactly—no, you‘re exactly right.  A lot has already come out, but one of the things that the plaintiff in the Bryant case cannot forget she‘s dealing with Bryant‘s star power.  That‘s the difference when she comes to California even if she tries it back in her own state.  So she‘d probably be better off to stay where she is and try the case in federal court in Colorado.  But let me just say one last thing.

ABRAMS:  Quickly, yes...

MCNEIL:  Look, you‘ve got to overcome the star power.  I would say this.  Take a couple of million and run if you can get it.

ABRAMS:  All right, now Bob, let me ask—I‘m going to ask everyone very quickly, a quick answer.  How much—I think we all agree this case will likely settle before trial.  I want everyone to predict a number.  I think the number is going to be something around $7 million is my guess—

Bob McNeil.

MCNEIL:  Oh, I would say no more than two or three million at most.

ABRAMS:  Joe?

TACOPINA:  Yes, I think about two million is the cap.

ABRAMS:  Paul?

PFINGST:  2.5. ABRAMS:  Jeanine?

PIRRO:  Above seven.

ABRAMS:  Yes, I think two point—I don‘t think—you know look, if it stays in Colorado and that‘s the most they can win in Colorado, then maybe it does stay down there.  But if they get any shot of moving us, I think we‘re talking about much, much higher amount.

Legal team is going to stick around.  Does Scott Peterson have a shot at avoiding death row, as our continuing coverage of the trials of 2005 continues.  The judge has the power to reduce the jury‘s verdict to life in prison.  How realistic is it?  Remember, my legal team has had a judge do just that in a California case.

And what ever happened to the self-proclaimed prophet who abducted Elizabeth Smart?  Remember her?  That beautiful girl.  This guy was singing the praises of God during a recent court appearance.  He could soon be going to trial.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, in our look ahead to the big legal stories of 2005, jurors said they believe Scott Peterson should die for killing his wife Laci.  The judge has the final word.  The question: will he decide the death penalty is just too tough, but first the headlines.

(NEWS BREAK)

(BEGIN VIDEO CLIP)

HON. ALFRED DELUCCHI, PETERSON TRIAL JUDGE:  This man will be referred to the probation office for a report and sentence.  The matter of the sentencing will be scheduled in this department February 25 at 9:00.

(END VIDEO CLIP)

ABRAMS:  After the winning appeal, it‘s a sure thing that Scott Peterson will spend the rest of his life behind bars at the least.  Less than three weeks ago, 12 jurors recommended Peterson get the death penalty for murdering his wife and unborn son, but it‘s not over.  The judge has the final say.  He‘ll formerly sentence Peterson on February 25.

The question:  Is there any chance Judge Delucchi will spare Peterson‘s life?  “My Take”—I don‘t think he will or that he should.  Look, I‘ve said that I don‘t think this is the type of case where prosecutors should have sought the death penalty.  I think that should be reserved for people with long criminal records and those who have been proven to have tortured their victims, not for every murder case.

It‘s a matter of discretion they could have, arguably should have just sought life.  But as a matter of law, weighing the aggravating and mitigating factors the reasons to execute or not, Peterson is in big, big trouble.  Jeanine Pirro, any chance that this judge is going to change or not accept the jury‘s recommendation here?

PIRRO:  In the 22 death penalty cases Judge Delucchi has had, he‘s imposed death or the jury has sought death in six.  He never overturned their requests and I can‘t imagine he would do so in this case.  And you know what is interesting, Dan, is that for the first time because of the high-profile nature of this case, we‘ve heard jurors talk about the reasons that they imposed death.  The betrayal of trust, the fact that it was his wife and his unborn child.

And so for the first time we‘ve got in a domestic violence homicide a jury saying, you know what, this requires even a greater punishment than a stranger homicide, which is so different from when I first started prosecuting domestic violence cases 25 years ago.  I don‘t think he‘ll overturn it at all.

ABRAMS:  Paul, you had a case where a judge did just that, right?

PFINGST:  Yes, he did and it was a much more graphic and violent case than this one was where ultimately the defendant set the victim on fire and burned him to death after beating him pretty viciously and it was a tough judge.  This was no weak-knee judge...

ABRAMS:  Why did the judge do it?

PFINGST:  The judge did it because in his heart and his conscious, he just didn‘t feel that death was the appropriate sentence and what...

(CROSSTALK)

PFINGST:  ... would cause me to think it‘s possible here, not likely, but possible here is there‘s a retired judge.  And as you pointed out, there is a defendant with no prior history of any violence.  And if the circumstances are right to do it, these are those circumstances.

ABRAMS:  Here is the law.  The judge shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances.  And shall make a determination as to whether the jury‘s findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented.

Bob McNeil, does this mean that basically the judge is just allowed to second-guess the jurors?

MCNEIL:  Well, in this particular situation, Dan, I believe that he could second guess in terms of looking at the evidence, and he‘ll explain it, but I think there‘s a real chance that he might choose life without...

ABRAMS:  Why?

MCNEIL:  ... the possibility of parole in this case and the reason for that is this is a case if there ever was one where there‘s possible lingering doubt.  You know, the reasons that these jurors espoused and talked about voting for death, some of those reasons never should have never been considered on that issue.  And I think the judge might just see through all of that and believe maybe the media, maybe all of the circumstances caused these jurors to do what he probably was a bit surprised by.  I was surprised that they voted for death myself.

(CROSSTALK)

UNIDENTIFIED MALE:  ... in this case.

ABRAMS:  I wasn‘t.  I mean Joe, look, I laid it out.  If I had been the prosecutor in this case, I probably would haven‘t sought the death penalty here, but once they sought the death penalty, the aggravating factors—there were almost no mitigating—what were the mitigating circumstances?  What were the reasons not to execute Scott Peterson apart from the fact that he didn‘t have a criminal record?

(CROSSTALK)

MCNEIL:  That‘s a very important factor.

ABRAMS:  Let me let Joe chime in.  Go ahead Joe.

TACOPINA:  A lot of people didn‘t see him do it, Dan.  That‘s it.  I couldn‘t think—that was a joke actually...

(CROSSTALK)

ABRAMS:  The bottom line is...

TACOPINA:  You‘re right.  There‘s no—I mean the fact that he like, you know, was a nice kid in eighth grade or something or did some charity work doesn‘t cut it.  There was absolutely no mitigating, compared to the aggravating, there were none.  And I don‘t think a judge is going to upset a jury verdict.  Most trial judges are loathe to do that unless the jury is so wrong on its face.  They‘re not in this case...

(CROSSTALK)

TACOPINA:  That‘s an appellate issue.

ABRAMS:  And there‘s no evidence, Jeanine, that the media—and I‘m just—and I‘m going to respond to this every time I hear it—there is no evidence that the media—I know that the defense team wants to blame the media somehow to blame the media for the conviction here, but the bottom line is there is nothing to indicate that the media—the jury foreman told me, I‘m a huge—I was a huge fan of your show.  Do you know how much I have missed not being able to watch a single moment of your show for six months?

(CROSSTALK)

ABRAMS:  He had no idea what my take was on the entire case.

PIRRO:  The best evidence, Dan, is the jurors themselves and for the first time, we got into their minds.  They said we didn‘t even know what was going on.  We didn‘t know what the public wanted, so to blame it on the media is bizarre.  Here is the bottom line.  Scott Peterson was convicted because he was guilty.  They imposed death because they thought it was appropriate.  The public, the media had nothing to do with it.  Based on the law, the facts, period, end of the story.

ABRAMS:  Yes.  All right.  Look, I don‘t think this judge is going to change or not accept that recommendation from the jury.  But as Paul Pfingst was stunned in the case where it happened to him.  So we shall see.

Coming up, 14-year-old Elizabeth Smart disappeared in the summer of 2002, then was found the next spring with two drifters.  One of them scheduled to go on trial next year.

And as we continue our trials of 2005, how can you not have that guy?  Saddam Hussein went to court for the first time last summer.  Didn‘t even meet, though, with one of his lawyers until a few weeks ago.  Officials have promised to give him a speedy trial.  Any chance speedy will mean 2005?

(COMMERCIAL BREAK)

ABRAMS:  It was arguably the feel-good story of 2003.  Fifteen-year-old Elizabeth Smart found alive and seemingly well after having being kidnapped from her home just when many had given up hope she would ever be found alive.  Then came the news.

(BEGIN VIDEO CLIP)

CHIEF RICK DINSE, SALT LAKE CITY POLICE DEPARTMENT:  We‘re here to announce officially that we have found Elizabeth Smart and that she is here and well and healthy in our station.

ED SMART, ELIZABETH SMART‘S FATHER:  I don‘t know what she‘s gone through and I‘m sure she‘s been through hell.

ELIZABETH SMART, KIDNAPPED FROM HER BEDROOM:  (UNINTELLIGIBLE)

(END VIDEO CLIP)

ABRAMS:  Brian David Mitchell and Wanda Barzee charged with her

abduction after she was spotted with the couple more than nine months after

she disappeared.  When Elizabeth was found, she was wearing a wig and

sunglasses, initially denied being herself.  Barzee and Mitchell allegedly

snatched her from her bedroom, took her into the foothills near her home

where she was allegedly sexually assaulted and kept as Mitchell‘s—quote

·         “second wife.”

So what happened in the almost two years that Elizabeth has been home

with her family?  One word—at least on the legal front, competency. 

Mitchell and Barzee both initially found incompetent to stand trial.  But

as of now, Mitchell‘s trial is set to begin in February after a second

competency hearing.  Barzee is now undergoing treatment in a state mental

hospital.

You know, I want to know whether—you talk about competency versus insanity.  Jeanine Pirro, these are the sort of defenses that we see in these cases very often and you know, there is a sense on the part of the public of an unwillingness to, you know, be forgiving of someone like this.  You know, so they‘re not confident to stand trial or at least one of them for now.  Where does that leave us?

PIRRO:  Well competency is different from insanity, Dan, as you well know.  Competence simply means that you can understand the nature of the charges and you can assist in your own defense.  That—because someone is deemed competent means we can go to trial.  That doesn‘t mean that they cannot then say I was insane at the time I committed the crime.

But you are right.  The public doesn‘t have tolerance for this kind of thing, and I can‘t imagine an insanity defense working here.  You have a young girl who apparently was abducted, as you say, from her own bedroom and who was held as a second wife.  And so as long as she testifies and as long as the court has said he is competent to stand trial, it appears to me that this is a very strong case.

ABRAMS:  Paul, how do you avoid having to put her through that, having to avoid having to make her testify about everything she went through?

PFINGST:  I don‘t think you can unless you give a plea.  And the plea, you would have to give in this case, I don‘t know what you‘d want to give these people for what they did.  But one of the things the prosecutors have to be concerned about is what this girl went through.  If you can in any way without betraying your public trust get—reach a plea that puts these people out of commission to the point they can‘t harm somebody, you‘ve got to do it so she doesn‘t have to go through this because the girl went through hell.

ABRAMS:  Yes.  Joe, you know, we always talk about the insanity defense, incompetency to stand trial.  I mean this guy is singing in court.  She‘s been declared incompetent and now she‘s filing for divorce from him.  You know, this is—I‘m concerned this is turning into a sort of mess here.  I mean look at these two.  I mean you know...

(CROSSTALK)

ABRAMS:  ... let me read you from—this is number two here.  This is what they said.  One of the officers who took Mitchell and Barzee into custody had to say.

(BEGIN VIDEO CLIP)

OFC. KAREN JONES, SANDY, UT POLICE DEPT.:  They really didn‘t have too much to say except that they kept reinforcing that they were messengers of the Lord Jesus Christ and that they had given up all worldly and earthly goods.  And they were just going wherever the Lord led them.

(END VIDEO CLIP)

ABRAMS:  Joe, I‘m nervous.  I‘m nervous that this is going to be the kind of case where, you know, they‘re going to say insanity is a real possibility here.

TACOPINA:  Yes, insanity, I don‘t think is flying.  Competency is different Dan.  I mean competency will deal with their ability to stand trial.  They don‘t get to a jury...

ABRAMS:  But that‘s basically—right, I mean that‘s basically if you‘re drooling at the defense table, right...

(CROSSTALK)

TACOPINA:  Yes, well I guess that would be the physical attributes of incompetency...

ABRAMS:  Yes, yes...

TACOPINA:  I‘ve known some lawyers that drool at the defense...

ABRAMS:  Yes, yes, yes...

TACOPINA:  But, you know, insanity is not going to fly.  Insanity defenses work maybe like two percent of the time Dan...

ABRAMS:  Yes.

TACOPINA:  I think the statistics show that...

ABRAMS:  But if they‘re incompetent—here‘s my concern Joe.  If they are incompetent to stand trial and at least they both were initially, now one of them has been declared.  That means that they are so out of it...

(CROSSTALK)

ABRAMS:  ... at this point—and you are right, the distinction between the time of the crime and now.  But if they are—if a judge has ruled that they are—this person is so out of it that they can‘t even assist in the defense...

TACOPINA:  Right.

ABRAMS:  ... well if they were like that back then, then a jury might find...

TACOPINA:  Except then you get into emotional reactions and visceral reactions.  Jurors don‘t have tolerance for insanity defenses.  But here is what happens.  Here is why the system is not faulty in this regard.  We take people and as a society, I think we‘d like to acknowledge if someone has a mental defect that‘s so overwhelming that they act in a way that none of us could ever imagine acting, it is not as if we open up the door and they get to go (UNINTELLIGIBLE) and go have a nice life.

They‘re basically put into a mental institution until they‘re deemed fit to reenter society.  So it‘s not—some people stay there for 25 years.  They could get a larger sentence in a mental institution than they could get in a jail, Dan.  So I mean...

ABRAMS:  It‘s a lot nicer there though...

TACOPINA:  ... the system is ready to bear that.  The system is ready to bear.  We don‘t want to put sick people in a cell just because they are sick and we don‘t want them amongst us.

ABRAMS:  I don‘t know.  I mean I‘m one of these people who starts to think that it‘s time to be a little more honest about what we‘re doing with our criminal justice system and that is punishment.  That we have to stop pretending in many cases that that has not become the primary purpose of our criminal justice system, at least even for intellectual honesty purposes.

Anyway I‘ve got to move on from this one because we‘ve got a big one coming up.  Coming up, continuing our 2005 look ahead.  He has been in custody for more than a year now.  When he was captured, officials promised he‘d be tried soon.  Is it realistic to think he‘s going to be tried in this next year?  His lawyers though—I just talked to them—they sound confident everything is fine for Saddam.  No problems.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, more than a year after he was captured, Saddam Hussein finally met with a lawyer for the first time.  Talk to a member of the legal team about what to expect.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  Could be the trial of the century—the trial of Saddam Hussein seen here at his arraignment last July.  Iraqi officials say he will be tried by a tribunal made up of five Iraqi judges and face charges including war crimes, crimes against humanity and genocide.  I spoke with one of the Saddam‘s lawyers a couple of weeks ago and he says Saddam doesn‘t seem to have a worry in the world.

(BEGIN VIDEO CLIP)

ISSAM GHAZZAWI, MEMBER OF HUSSEIN‘S DEFENSE TEAM:  He seemed very relaxed because he knows that he can‘t be convicted in any court of law, which is legal (UNINTELLIGIBLE) the United States (UNINTELLIGIBLE) power in Iraq, it doesn‘t have the right to constitute any court or any government and even not to appoint a judge.

(END VIDEO CLIP)

ABRAMS:  Then maybe Saddam doesn‘t know his former foreign minister, Tariq Aziz, could be ready to provide evidence against him.  Former U.S.  chief weapons inspector David Kay questioned Aziz for months and says Aziz claims Saddam gave...

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Direct orders to murder, to assassinate, to kill.

(END VIDEO CLIP)

ABRAMS:  And Iraqi officials are hoping more of Saddam‘s top aides will provide evidence against him.  Proceedings against two of them got underway December 17.  In the dock there, Ali Hassan al-Majid, better known as “Chemical Ali” for his alleged role in nerve gas and mustard gas attacks on Iraqi Kurds and General Sultan Hashem Ahmed, Saddam‘s last defense minister.

“My Take”—Saddam‘s lawyer seems to think this trial is occurring at The Hague and they want to haggle over certain legal definitions when it comes to—quote—“international law.”  Saddam is in big trouble in Iraq.  The lawyers seem a lot more comfortable talking about why the tribunal is illegitimate than about why Saddam is innocent.

Bob McNeil, are they going to get any help from international law sorts, from any international tribunal, et cetera?  The bottom line is this trial is occurring in Iraq.

MCNEIL:  I understand that, but you know, the problem is, is that you know, Saddam didn‘t start the war and I know that‘s not the only charge that‘s against him in the sense they‘re talking about, you know, killing...

ABRAMS:  He is not being charged for starting the war at all.

MCNEIL:  I understand that.  Yes, that‘s right.  And so, you know, what do you charge him with and how do you prove it?

TACOPINA:  Genocide...

MCNEIL:  And so the issue is—and who tries him?  So, does this tribunal that‘s, you know, that‘s installed by the United States, let‘s say, are they really entitled?  I mean are they the ones that can try him?  And I think he‘s got a point and I think if he‘s going to get relief, it‘s going to be on that and it‘s going to have to come from some international tribunal that says that this tribunal does not have the power to try him.

TACOPINA:  Dan, can I jump in, though...

ABRAMS:  Yes.

TACOPINA:  ... you know, look, that was my initial reaction that a fair trial for Hussein was up in the air aside from the fact that I think everyone may have heard of his alleged crimes.  But I think the fact that the tribunal was established by the American occupying authorities and with judges appointed by the American occupying authorities, you know, one would say, gees, how can this guy get a fair trial.  It‘s the enemy.

However, they applied Iraqi laws, number one.  And number two, what I understand now is that the tribunal is comprised wholly of the new Iraqi regime...

ABRAMS:  Right...

TACOPINA:  ... that‘s who he should be tried—people of his peers. 

These are the people that he governed for decades.

ABRAMS:  You are not going to be able to, Jeanine, fight—I mean you‘re not going to be able to fight the war again in this courtroom.  That‘s what they‘re going to do.  They‘re going to try and put the war on trial is what Saddam‘s people are going to do...

(CROSSTALK)

ABRAMS:  ... as opposed to what Saddam‘s actions were leading up to the war.

PIRRO:  Right, right.  This is, first of all, an Iraqi-led tribunal.  Certainly there is help from other countries, information was taken out of Iraq in 1991 by the Kurds, and there apparently are tape recordings of Saddam Hussein ordering chemical weapons to be used...

ABRAMS:  Oh, they got reams of documents, too...

PIRRO:  ... and so this is leading up to the war.  This is not just because of this most recent war.  And since it is an Iraqi-led tribunal by Iraqi prosecutors...

ABRAMS:  Yes.

PIRRO:  ... there‘s no question that the law applies and that it will be fairly instituted...

ABRAMS:  ... I‘m glad to hear Saddam is relaxed according to his lawyer because that might make the pain come a little bit easier.

All right.  Paul Pfingst, Bob McNeil, Joe Tacopina, Jeanine Pirro, A-A-A list panel.  (UNINTELLIGIBLE)

TACOPINA:  Thanks Dan.

ABRAMS:  I‘ll be back in 60 seconds with the answer to the question I hear far too often.  Will there be enough legal stories to cover now that the Peterson trial is over?  My answer...

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—in response to the question I‘m asked so often, do you think there will still be major legal stories to cover next year and what are you going to do now that the Peterson case is over?  It‘s the same question basically I have been asked every year since legal stories became a staple of the news diet beginning in the early 1990‘s.

What are you going to do now that the Menendez case is over?  What are you going to cover now that the O.J. Simpson case is done?  Is your show going to have enough material now that the Kobe case went away?  The answer is the same every time, every year.  There will always be stories to cover.  There will always be despicable crimes and despicable criminals—some of them famous, others just fascinating.

Almost all will insist the police got the wrong man or woman and in turn their trial will captivate and it‘s not just the trial.  From abortion to gay rights to church and state issues, the legal stories never fail to deliver.  It‘s true this has been a particularly fruitful year in the world of legal journalism, but as Steven Brill, the founder of Court TV used to say, it is like being an umbrella salesman.  You can count on the fact that there will always be more rain.  So stay tuned next year as the program about justice continues.

That does it for us this New Year‘s Eve.  Coming up next, “HARDBALL” with Chris Matthews.  Have a great night.  Have a great time.  Have a happy, healthy—so glad we could share this time together on this special day.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

END   

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