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'The Abrams Report' for Dec. 30

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

Guest: Ray Kelly, Bill Bratton, Jim Huston, Floyd Abrams, Ron Richards, Robert Hirschhorn, Charles Gasparino, Christopher Bebel, Gerald Lefcourt

RIKKI KLIEMAN, GUEST HOST:  Coming up—you may have New Year‘s Eve off, but the nation‘s police and security agencies are working overtime.

(BEGIN VIDEOTAPE)

KLIEMAN (voice-over):  From Times Square to the Las Vegas strip, New Year‘s Eve celebrations require massive security.  We ask the top cops in New York and Los Angeles if they‘re ready and get their take on the threats facing America in the New Year.

And an AP story allege Navy SEALs may have been abusing Iraqi detainees and claim it has photos to prove it.  But now the SEALs are suing saying their lives are in danger because their identities have been revealed.

Plus, 2004 was supposed to be the year when white-collar crime was brought to justice.  Martha Stewart is in prison, but the man many consider corporate enemy number one is still free.  Whatever happened to the case against former Enron Chief Ken Lay?

The program about justice starts right now.

(END VIDEOTAPE)

KLIEMAN:  Hi everyone.  I‘m Rikki Klieman.  Dan‘s off tonight.

We‘re going to get to all of those stories, but first up on the docket, the latest on the tsunami.  At last count, the death toll topped 117,000, including 14 Americans and the U.S. State Department is looking into several thousand inquiries of missing Americans.  More than 80 aftershocks have hit the region and the World Health Organization says up to five million are without basic means to survive and today the World Bank offered $250 million, bringing international government aid to nearly 500 million.

For more on how the region is faring after the deadly quake, here is correspondent Adrian Britton of our British partner, ITN.

(BEGIN VIDEOTAPE)

ADRIAN BRITTON, ITN REPORTER (voice-over):  It was not a dramatic crash of wave, which killed so many, as this latest video shows.  The tsunami was a mighty push of sea, a constant force consuming every object and person in its path.

(SOUNDS)

BRITTON:  A man clambers to safety on what was, a few seconds before, a first-floor balcony.  And a family at the hotel in Kamala Bay looked dazed as they struggled to stay together.  Five days on and they come to collect their dead.  This is an outdoor mortuary in Khabi (ph) where the victims, both Thai and foreign tourists, are laid out for identification by relatives.  Outside, Westerners wearing masks to hide the stench of death, view photographs of the deceased, many severely disfigured.

(on camera):  It is nothing short of horrific for friends and relatives to see.  Some of the bodies behind me have been laid out in the open heat for several days.  Visual identification is now virtually impossible.  It will have to be done forensically.

(voice-over):  British missing and presumed dead—Lincoln Abraham, who‘s on Phi Phi Beach, today his friends viewed the mortuary photographs on a computer, an agonizing duty.  Where recognition of corpses is impossible, close family has to give DNA samples to establish identity.  This young man believes he may have found the body of his younger sister.  It is a necessary forensic formality so the body can be released.  But in their grief, it is one more unbearable task to go through before they can take their loved ones home.

Adrian Britton, ITV News, Thailand.

(END VIDEOTAPE)

KLIEMAN:  Around the globe, New Year‘s Eve revelers plan to remember the victims of the deadly tsunami.  Sweden is hosting a torch light procession through a number of towns.  Germany is asking people to donate to charities, some of the $136 million that they normally spend on fireworks.  And in Hong Kong on New Year‘s Day, anti government protest will become a fundraising campaign instead.

Other countries are canceling plans all together.  Malaysia will not host any official activities.  Bangkok called off all outdoor celebrations and the Indian president abandoned the long-standing tradition welcoming the New Year with visitors.  But in New York City, hundreds of thousands of people are expected to ring in the New Year tomorrow night in Times Square, the 100th anniversary of that celebration.

So, how does the city prepare for that?  And just what is the state of security in this country as we get to begin a new year?  Joining me now, New York police Commissioner, Ray Kelly and Los Angeles Chief of Police Bill Bratton, who I should add, is also my husband.

First, Commissioner Kelly, thank you for joining me.  And I look at Times Square as I‘ve gone back and forth to my hotel and you can see you are all beginning, but I bet you began a long time ago.  When do you start preparations?

COMMISSIONER RAY KELLY, NEW YORK POLICE DEPT.:  Oh, well, you know, this is kind of a yearlong thing that we do.  We do a lot of planning for major events and, of course, a lot of things we do for other events are transferable to New Year‘s Eve.  But, in the last couple of days, you‘ve seen barriers moved into place.  This evening, we‘ll put more formidable ones on sidewalks and they will be put in place tomorrow evening.  So, it is something that, as I said, we‘ve had a lot of practice at doing.  But in the last few days, we‘ve really focused our attention on New Year‘s Eve.

KLIEMAN:  And Commissioner Kelly, because you have so many people in Times Square for this important and happy event, with the advent of terrorism, are there different plans in place now than would have been in place before?

KELLY:  Oh, sure.  We all live in a changed world as a result of 9/11.  So, we have what we call a counterterrorism overlay and we have a lot more plain-clothes officers.  We have a lot more officers in total assigned to Times Square and to other areas throughout the city.  We use a lot of our new technology.  We use our special helicopters with night vision cameras that are particularly effective.  We have a fusion center, an intelligence fusion center with our federal partners that we‘ve put together.  So, there are a lot of things that are done that certainly would not have been done prior to September 11.

KLIEMAN:  Indeed.  Chief Bratton—I‘m going to call you Chief.  I should let our viewers know I don‘t call you Chief at home, but I am going to call you Chief now.  In Los Angeles, for people like you and me and the others who live there, there is no Times Square.  But it‘s still New Year‘s Eve.  So, what‘s going on there?

CHIEF BILL BRATTON, LOS ANGELES POLICE DEPT.:  Really not much and they‘re now predicting heavy rain so there may be even less.  We have nothing at all in comparison to New York‘s (UNINTELLIGIBLE) celebration.  Our biggest event is a downtown open-air celebration, six to maybe 10,000 people.  But L.A. (UNINTELLIGIBLE) capital of the world is really almost shut down on New Year‘s Eve.  It‘s a much less significant event than it is certainly there in New York.

KLIEMAN:  And Chief Bratton, what happens then following New Year‘s Eve are the big events in Los Angeles?  There are the Golden Globes in January.  There are the Oscars in February.  Those are the kind of events that you really have to get out your anti-terrorism bureau.  So, what happens next year?

BRATTON:  Well, very similar to what Commissioner Kelly has talked about.  We‘ve got a lot of experience with major events and now we have the overlay, the intricacies of blending in anti-terrorism concerns.  So, we‘ve now, over the last two years, had significant experience at both the Oscars and coming up very soon, the Golden Globes.  Very similar to what they do in New York, certainly not on the same scale that the resources we have available and the size of our events versus theirs, but many of the similar techniques.

Intelligences is certainly extraordinarily valuable.  The idea of intervening or preventing in the first place, but then visible police, but also a lot of behind the scenes activity.  Plain-clothed officers, chemical, biological detection devices, as well as in our case, we‘ll bring in National Guard resources that would be there to respond in the event we were to have a chemical or biological attack.

KLIEMAN:  Your biggest targets, Chief Bratton, would be what?

BRATTON:  In terms of in this city, it certainly would be, for an event, it would be the Oscars.  We also, like New York, have very significant ports and airports are day-to-day concerns.  New Year‘s celebration is really not one of heightened terrorism concern, certainly very different than New York.

(CROSSTALK)

BRATTON:  Here we have the quaint custom.  They go out and shoot their guns in the middle of the night.  If we were dropping a ball here in Los Angeles, they‘d probably try to shoot it down.

KLIEMAN:  It is actually a frightening thought.  Commissioner Kelly, let me return to you because I really think that tomorrow is the night.  What are some of the things that you might tell the citizens who are coming into New York City?

KELLY:  Well, we do extensive checking of people who come into the immediate area of the celebration.  We have magnetometers that will be in place at all of the entry points and again, people who are going to the pens, as we call it, will be checked three times.  We tell citizens don‘t bring backpacks or anything, of course that looks suspicious.  Don‘t bring alcoholic beverage.  Dress warmly, even though the weather is supposed to be warmer tomorrow night.  It can get pretty windy in Times Square and relax and have a good time.

KLIEMAN:  Good.  And Commissioner Kelly, as a final thought, we‘re looking forward to 2005.  What do you think the state of affairs is in New York City regarding terrorism?  Are you the most prepared city in the country?

KELLY:  Well, we hope so.  But we still have, you know, a ways to go.  No question about that.  We learn every day.  I don‘t see the threat diminishing very much.  Although quite frankly, the so-called chatter right now is kind of at a low point.  But in the long-term, New York is going to be at the top or close to the top of the terrorist target list.  So, we have to keep all of our counterterrorism programs robust and strong and that‘s what we plan to do.

KLIEMAN:  Great.  Commissioner Ray Kelly, Chief Bill Bratton, I‘ll tell you it‘s a privilege from all sides to have you both on at the same time.  I thank you so much for your time.

KELLY:  Thank you Rikki.  Happy New Year.

(CROSSTALK)

KLIEMAN:  All right.  Coming up, these photos released by The Associated Press earlier this month reminded many of the Abu Ghraib scandal.  But those aren‘t U.S. soldiers in the pictures, they‘re the elite Navy SEALs and they say The A.P. compromised their safety by showing their faces and accusing them of abuse.  Now they‘re suing.  We‘re talking to their attorney next.

Plus, citizens of Santa Maria, California, check your mail.  Jury summons in the Michael Jackson case are going out this week.  But how on earth will attorneys find a jury that can really be impartial?

And Martha Stewart is getting in prison—or getting out of prison while Ken Lay, the former CEO of Enron, is still waiting to be tried.  More than three years since the company collapsed, so what‘s taking so long?

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

(COMMERCIAL BREAK)

KLIEMAN:  Coming up—six U.S. Navy SEALs say the A.P. went too far in revealing their identity and is part of a story about alleged abuse.  Now they‘re suing the A.P., claiming that reporter put their lives at risk. 

We‘re talking to their attorney next.

(COMMERCIAL BREAK)

KLIEMAN:  A new batch of photographs surfaced, leaving a reporter to question whether they‘re proof of more prisoner abuse in Iraq.  No, these are not from Abu Ghraib.  They may have actually been taken months before.  These photos depict members of the elite Navy SEALs using what some might say are debatable tactics.  I want to warn you that some of these photos are graphic.  Now that we‘ve blurred out the identity of the SEALs, but that‘s precisely the reason for this lawsuit.

When these photographs were originally printed earlier this month, The Associated Press did not do so and now six Navy SEALs and two of their wives are filing suit, alleging publishing their identities put their lives in danger both at home and on the battlefield.  The A.P. reporter, Seth Hettena, says that the snapshots were on the Internet and he got them while researching another story.

One Navy wife claims that Hettena took the photos illegally, saying that she stored them on the site after her husband and other SEALs came back home.  She thought the site was secure after all.  Well, you needed a password to view the pictures.  Well, for its part, The Associated Press has this to say, and I quote  -- “We believe that the use of the photographs and the manner they were obtained were entirely lawful and proper”—end quote.

Joining me now, the attorney representing those six Navy SEALs, Jim Huston.  Jim, thanks for being here tonight.

JIM HUSTON, ATTORNEY REPRESENTING NAVY SEALS:  My pleasure.

KLIEMAN:  One of things that I think we have to do is start at the beginning.  Where did the photos come from and how did the A.P. get them?

HUSTON:  They came from a woman‘s personal photo Web storage page that she had other photos stored on, including her family photos, her parents, her wedding photos.  When these photos were given to her by her husband after returning from Iraq the previous year she stored them on her computer and then uploaded them to her storage site as she did with all her personal photos.  She thought that the site was password protected.

Either she was wrong about that, or Google is a little bit better at getting through passwords than I think.  But probably it was not password protected and she thought it was.  What I understand to have happened is that the reporter was researching another story and typed in a word into Google pertaining to a specific place in Iraq and that place, the name showed up on a caption of one of the photos that she had uploaded to her site.  And so Google took this reporter through that digital door, if you will, into her personal photos where he looked around and took what he wanted from the site.

KLIEMAN:  So, when you‘re dealing with this, that sounds to me like an invasion of privacy complaint and I‘ve read your complaint.  But that may be not half as significant for you and the people you represent as the complaint having to deal with their safety.

HUSTON:  Right.  I mean the fact that he got the photos is annoying and we wouldn‘t be here if that‘s what all this case was about.  The real heart of the case is once he got those photos he didn‘t know what he was looking at.  He thought they—as he asserted in the article, could be—he doesn‘t say that they are—he says they could be indications of prisoner mistreatment, which we assert they are not.  But he says that they could be.

And then he decides to publish them.  All that, you can say is OK, I would disagree with it.  But even if you get to that point where you think it‘s OK for him to have published that, all the SEALs would say is obscure the faces so you don‘t disclose the identities of the individuals and the reason that‘s so important is because Mr. Hettena had sent these photos to the Navy before publishing this article and said what about these photos?

And they said, well we don‘t know, we‘re going to look into it.  But they do show faces and identifying information of these individuals.  And if you publish that, it could put them and their families at risk.  And knowing that, he published them anyway.

KLIEMAN:  All right.  Well that‘s a good summary for us to start.  So, James Huston, I want you to stay with us.

HUSTON:  OK.

KLIEMAN:  So, the Navy SEALs say that their lives are at risk since their identity has been revealed, but what about freedom of the press?  We‘re going to talk to a First Amendment attorney with a personal connection to this show, Dan‘s father, Floyd Abrams, next.

Plus, is there really anyone in the town where Michael Jackson is going to face a trial who hasn‘t heard of the pop star?  What can attorneys do to ensure he gets a fair trial?

(COMMERCIAL BREAK)

KLIEMAN:  Welcome back.  We‘re talking to the attorney representing six Navy SEALs who say their lives are in danger after a news organization published photos of them without concealing their identities, but what about the responsibility of the press to do their job, to investigate, to ask questions, and to get to the bottom of the story?

“My Take”—as a firm advocate of the First Amendment, I say that publishing an image of a newsworthy event is critical to our freedom.  We need to see the truth, not to hide it.  Now to debate, I‘m joined by Floyd Abrams, First Amendment attorney and author of the forthcoming book “Speaking Freely: Trials of the First Amendment”.

Floyd Abrams also happens to be Dan‘s father.  And Jim Huston is also back with us.  Floyd, let me go to you with the crux of the matter, as I understood it from Jim Huston, which is it‘s one thing to have published the photos.  It is another thing to have published them, showing the faces of these Navy SEALs.  First of all, is that illegal?

FLOYD ABRAMS, FIRST AMENDMENT ATTORNEY:  I don‘t think it‘s illegal.  And I don‘t think it really gives a basis for a tough lawsuit.  I mean, I‘m new to this case, but it does seem to me that we should start out with a notion, you know, that this is not a liable case.  This is not a case in which the basis of the claim is something false was said and these SEALs are going to come in and say it‘s untrue.

The focus, as you rightly say, is on the fact that the faces of the people were not covered up.  I don‘t know of any case, ever, in our history, in which the failure to cover up a face has given rise to a legal claim and in this context especially, where someone has taken a picture, someone—one of the SEALs, someone else there, obviously didn‘t think it was so private or so sensitive that they wouldn‘t take a picture for their private and personal use.  It just seems to me that it‘s going to be a really tough sell to persuade a judge that the failure to cover up the face of our SEALs over there can give rise to a legal claim.

KLIEMAN:  Well, Jim Huston, I take it back to you.  It may be a tough case, but I would bet that you think you stand a fair chance of success in light of the fact that they are Navy SEALs.

HUSTON:  Well, I think that‘s right and that‘s because these are not just regular soldiers.  These are special operations personnel conducting intelligence-related activities overseas and their identities are now compromised and they‘re all over the world, Al-Jazeera, they‘re on billboards in Cuba and the like.  Mr. Abrams, we‘re in good hands when we‘re talking about the First Amendment with him.

He is one of the greatest authorities in the country, but I think he is mistaken that there is not a case out there pertaining to the failure to obscure faces as given rise to an invasion of privacy case.  There is a case exactly like that decided by the California appellate courts called M.G., a minor in which the very heart of the issue was the failure to obscure a face in a photo and the court decided that that did, in fact, give rise to a right to claim invasion of privacy.

KLIEMAN:  Well, maybe a privacy case, Floyd Abrams, as you say it may not be a libel case because we‘re not dealing with the question of truth or falsity.  My question to you, Floyd, is in light of the fact that they could have pixilated the faces.  They could have done...

ABRAMS:  Yes.

KLIEMAN:  ... done something to have blocked them out and therefore avoided this whole question of the security of these people.  Does it mean that The Associated Press took a position that, in essence, they were going to expose them and also allege misconduct, bad treatment, that they really became a judge and jury in this case?

ABRAMS:  You know, to some extent, Rikki, a journalist is always a sort of judge and jury and making a hard decision about what to publish and what not to publish and what to cover up and what not to cover up.  That, in good part, is really what the First Amendment does protect.  It‘s not the same as in that M.G. case where they didn‘t cover up the face of children in a photo in an article where there was a suggestion of sexual misconduct being conducted on the children.

Would it be illegal or would it give rise to a claim just to take a picture of one of these SEALs walking down a street in San Diego and identifying him as a Navy SEAL?  I don‘t think so.  And I think that this was a newsworthy, a very newsworthy photo, which the A.P. made a hard call on and it is a hard call about whether to cover up the face or not.  And, you know, I think they can be criticized or praised.

Journalists and just all the rest of us can be right or wrong in what we think about that.  I just think it‘s real tough to win this case for the plaintiffs and especially to get the relief they seem to want the most, which is to stop the A.P. from ever doing this again, in effect what we call a prior restraint a limitation on the A.P.‘s right to do this and that‘s really hard in our jurisprudence.

KLIEMAN:  Jim, I‘m going to give you the last word.  It‘s your lawsuit.  If you can just do quickly for us, what do you want out of this?

HUSTON:  I wouldn‘t call it a prior restraint as Mr. Abrams just said.  What we want is an indication from the A.P. that they will not use these photos with recognizable faces on them.  That does not add to the newsworthiness of the photo and the case that we were discussing in California discussed whether or not the face itself was part of the newsworthiness of the photo and in this case, it‘s not.  And I think that they erred grievously by not giving these gentlemen the respect that they deserve in doing this incredibly dangerous work overseas and they put them at risk exactly as the Navy said they would and that is just unforgivable.

KLIEMAN:  All right, Jim Huston and Floyd Abrams, great debate. 

Thanks so much.

ABRAMS:  Thank you.

HUSTON:  Thank you.

KLIEMAN:  Thanks.  Coming up, could you be impartial if you were called to serve on a jury trying this man?  The jury summons are going out this week and the system has to work for everybody, celebrities or not.  We talk about how attorneys will put together Michael Jackson‘s jury.

And remember when Ken Lay wanted a quick trial after he was indicted this summer?

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  I‘ve instructed my legal team that I want a speedy trial and I hope it will begin by early September this year.

(END VIDEO CLIP)

KLIEMAN:  Now December and we‘re still waiting.  We take a look at where his case stands coming up.

(COMMERCIAL BREAK)

KLIEMAN:  Coming up—jury summons in the Michael Jackson trial are going out this week, but is there any way to find an impartial jury when the defendant is one of the most famous pop stars of all time?  First the headlines.

(NEWS BREAK)

(BEGIN VIDEO CLIP)

MICHAEL JACKSON, ENTERTAINER:  I want to thank the community of Santa Maria.  I want you to know that I love the community of Santa Maria very much.  It‘s my community.  I love the people.  I will always love the people.  My children were born in this community.  My home is in this community.  I will always love this community from the bottom of my heart.  That‘s why I moved here.

(END VIDEO CLIP)

KLIEMAN:  Michael Jackson appeals to neighbors of his community.  Twelve members of which are soon going to be asked to decide if the “King of Pop” is a child molester.  Four thousand juror summons are reportedly being sent out this week for jury selection, which is set to start on January 31.  But picking an impartial jury for this case is going to be a difficult task, maybe more so than any other celebrity trial as a result of Jackson‘s odd behavior, which could affect some jurors‘ attitudes towards the eccentric entertainer.

Remember, this image?  Well how are jurors going to be able to get past strange actions like this?  Plus, defense attorneys are going to be interested to know perspective juror‘s feelings about issues such as race, divorce, and get this, even plastic surgery.  Is there really anybody in the world, let alone in his own community, that doesn‘t know something about Michael Jackson?  Is there a place anywhere where he can receive a fair trial?

“My Take” - even the most famous amongst us can get a fair trial since jurors take their responsibilities seriously.  Perhaps the most important part of this case will be the process of jury selection, a skill which is hard to teach and even more difficult to perform well.

Joining me now, jury consultant Robert Hirschhorn, who has helped pick many juries for the defense both in the famous Robert Durst trial and the Daniel Pelosi trial recently, and criminal defense attorney Ron Richards, who has closely watched this case.

Ron, I want to start with you because you know the county.  Tell us where the jurors are going to be from and what kind of jurors there are.

RON RICHARDS, CRIMINAL DEFENSE ATTORNEY:  Well they‘re mostly going to be from North County, because that‘s what the summonses are going to be going out.  If you took a line and drew it right through the middle of Santa Barbara, everything north of the Santa Ynez River is North County and they‘ll all be coming from basically the city of Santa Maria, which has a population of 77,000.

KLIEMAN:  And tell me about them.  What kind of people will they be?

RICHARDS:  A lot of retired military, more agrarian people, more middle class.  I would say it‘s evenly split amongst Democrats versus Republicans.  And there‘s a strong libertarian streak.  You know, they tried to succeed a couple of times from the South County.

KLIEMAN:  And if we do have to go down to the other part of the county, then what kind of people do we have there that are different?

RICHARDS:  Well you have they‘re people that move there to get away from Los Angeles and I don‘t know how well that will go for the defense, but they‘re more liberal minded.  It‘s 2-1 Democrats versus Republicans and I think that you also have a lot of University of Santa Barbara students as well as Santa Barbara City College students, so it‘s much younger, much more cultural and a totally different market down there.

KLIEMAN:  All right, Robert Hirschhorn, you‘ve heard the demographics as it were.  So if you were picking a jury and you were going to have a prosecution juror wish list first, what kind of people do you want?

ROBERT HIRSCHHORN, JURY CONSULTANT:  Well I think what the prosecution is going to be looking for, clearly older jurors.  They are going to want single—or they‘re going to want single women who want to have children or married couples that want to have children, but don‘t have children at the present time.  So, that‘s moms and dads that really are wanting to have the kids.  You‘re looking for a less-educated jurors, the kind of jurors that will viscerally decide the case and viscerally Michael Jackson is such an oddity that that will be a problem.

You want Hispanic or Asian jurors because they tend to be very pro-prosecution, very pro-law enforcement so that would benefit the prosecution as well.  The anti-celebrity, anti-wealthy jurors, there are a bunch of jurors that just can‘t stand and have no respect for anybody who is either very wealthy or very well known.  You‘re looking for teetotalers because of the allegations of the alcohol in the case and of course people that have very negative views regarding obscenity or anything like obscenity.

KLIEMAN:  All right.  Well let me give you quickly, Robert, your usual position here since you work with so many great defense lawyers around the country.  What kind of jurors would you want as a defense lawyer?

HIRSCHHORN:  I think what Michael Jackson is looking for is a younger jury, what I call the Jackson generation jurors, the jurors that like his music, that respect—although he is somewhat odd—respect the fact that he is an artist nevertheless.  You are looking for couples who don‘t want to have children, just they might have an inherent disbelief or be willing to question how true the child‘s accusation is.

You‘re looking for educated jurors, but in the soft sciences, the psychology, sociology, those type of jurors.  You are looking for the celebrity lovers, the people that when you hear a celebrity is in town, they‘ll go try to get a glimpse of that person or get their autograph.  The defense is looking for obviously people who have ever been falsely accused.  So, clearly the two camps are looking for much different jurors, but Rikki, I‘ll tell you straight out of the box if the jurors are coming from the northern part of the county, it‘s going to favor the prosecution.

KLIEMAN:  It‘s interesting indeed.  Ron Richards, quickly if I may, you know Tom Mesereau.  You‘ve watched him work.  How is he a good selector of jurors?

RICHARDS:  He is fantastic.  He is going to use the voir dire process, which in California, unlike in federal court; attorneys get to actually engage with the jury.  He is going to have extensive questionnaires.  Tom is going to take full advantage of that voir dire process and do a very effective job of telegraphing to the jury what this case is about and weeding out jurors that may have biases against his client.

KLIEMAN:  All right.  Robert Hirschhorn...

HIRSCHHORN:  And Rikki, he‘s going to need it.

KLIEMAN:  All right.  Ron Richards, both of you...

RICHARDS:  OK.  Thank you.

KLIEMAN:  I‘m sure Dan is going to get back to you during the course of this trial...

HIRSCHHORN:  Thank you.

KLIEMAN:  ... and I‘m going to be watching.  Thanks so much.

RICHARDS:  Thanks for having me.

KLIEMAN:  All right.  Coming up, Martha Stewart had her day in court, but some consider Ken Lay the real corporate enemy number one and he‘s still a free man.  After he was charged, he said he wanted a speedy trial.  Well, we‘re still waiting.

And both Scott Peterson and Robert Blake were accused of killing their wives.  One victim was portrayed as an innocent mother-to-be, the other as a low-life con artist.  Does any of that matter when we‘re talking about murder?  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  As CEO of the company, I accept responsibility for Enron‘s collapse, as I‘ve said before.  However, that does not mean I knew everything that happened at Enron.

(END VIDEO CLIP)

KLIEMAN:  Remember him?  That was Ken Lay, the founder of Enron.  For a time not too long ago, it seemed like all we heard about was corporate fraud.  Huge companies making headlines.  Tyco, WorldCom, cable giant Adelphia and even bigger names, Martha Stewart.  But now the mother of all white-collar crimes is about to take center stage.  When Enron founder Ken Lay stands on trial on multiple charges, including conspiracy and fraud at his indictment in July, Lay asked for it to be over quickly.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  I have instructed my legal team that I want a speedy trial and I hope it will begin by early September this year.

(END VIDEO CLIP)

KLIEMAN:  But that was nearly six months ago and still no trial date has been set.  So, what‘s taking so long?  “My Take”—the trial of Ken Lay is a legal story for 2005.  It is the one to watch and the result is anything but certain.

Joining us now, Charles Gasparino, senior writer for “Newsweek” and author of the soon-to-be released “Blood on the Street”, Gerald Lefcourt, criminal defense attorney and Christopher Bebel, a securities law expert and former federal prosecutor.

Charles Gasparino, let me start with you.  You and I began with the day of the indictment back in July and I don‘t think it‘s a slam-dunk.  I didn‘t think so then.  Anything change from now until then?

CHARLES GASPARINO, SENIOR WRITER, “NEWSWEEK”:  No, you know, it‘s definitely not a slam-dunk.  Listen, you have to prove criminal intent and that‘s very hard in these white-collar crime cases.  But on the other side of the coin, the public really is in no mood for the Ken Lays of the world.  I mean he—as you just saw in the clip, he basically gave us the Sergeant Schultz defense.  You know, I don‘t know anything.  I may be the chairman of the company, but I didn‘t know what was going on.  I don‘t know if the public is really going to buy that.  This is going to be an interesting case.

KLIEMAN:  Indeed it is.  Christopher Bebel, when you look at this whole idea of trying to get inside the mind of someone like Kenneth Lay in order to prove what was going on, one of the problems I think the prosecution has here is this is a man, unbelievable as it may seem, who didn‘t use a lot of e-mail.  You think they can prove this?

CHRISTOPHER BEBEL, SECURITIES LAW EXPERT:  Well, it‘s going to be tougher for the government to prove up its case because it‘s going to be hard to connect him to the evidence that showed what was actually going on with inside the company.  That absence of e-mail will allow him to position himself as someone who was out of the loop, who was kept in the dark and who was acting in good faith.

KLIEMAN:  Gerry Lefcourt, we are starting to sound like this might be an easy case and, of course, it‘s not.  You have tried many of these cases on the defense side.  Isn‘t the hardest thing here, the fact that Enron is a name that almost makes you vibrate, especially in Texas?

GERALD LEFCOURT, CRIMINAL DEFENSE ATTORNEY:  You know, the defense conducted a survey of potential jurors in Texas and many of the jurors, perhaps a third, called the defendants in this case, that‘s Lay and Skilling, snakes, pigs, terrorists, economic terrorists.  This is a very dangerous atmosphere, particularly for an innocent executive.  I mean, it‘s really—you know, for those that are guilty and they have evidence, fine.  But for somebody who really deserves the benefit of our constitutional system and a reasonable doubt, this is a very difficult atmosphere to get a fair trial.

And what Ken Lay did was say, yes, I want a quick trial, right now, without a jury, by myself.  And I will let the judge decide whether I‘m guilty or not.  They wouldn‘t give him that.  They want a jury.  And so what‘s going on, he‘s going to not be tried by himself.  He is being tried with co-defendants who there‘s much more evidence against and that‘s why it‘s going to take so long.

KLIEMAN:  Well, indeed.  And Charles Gasparino, one of the aspects of this case is of course it‘s the building blocks that the government has done.  They have gone up the chain...

GASPARINO:  Right.

KLIEMAN:  ... and they haven‘t gone all the way to the top so we have Mr. Lay there along with Mr. Skilling.

GASPARINO:  Right.

KLIEMAN:  And we‘re at a point where those two people really being at the top still have to kind of rise and fall together or am I wrong?

GASPARINO:  No.  I mean listen, they‘re joined at the hip in some ways because they both essentially have the same defense.  That they didn‘t know what was going on.  This guy Fastow, the CFO, Ken Fastow, who designed this whole kind of sham accounting system that showed Enron‘s profits over the years.  I mean that‘s essentially—that‘s the basis of their defense.

But you know, the gentleman just before me made a great point.  Juries really have no patience for corporate—for people in corporate America right now, especially anybody accused of wrongdoing.  I mean, listen, I get tons of e-mail from people still.  Listen, there‘s a tsunami that just wiped out 100,000 people and people still talk about the corporate scandals.  So this is a very difficult time to be a defendant in one of these cases.

KLIEMAN:  Indeed so.  If I can go back to Mr. Bebel, if I may, only because of dealing with where you are.  You are in Houston.  Is there any way for him to get a fair trial there?

BEBEL:  Well, on the record, on the face of things, it will appear to the appellate court, assuming convictions are entered, that a fair trial was received because those jurors are going to state point blank and very convincingly that they can be fair and impartial.  The judge is going to protect the record in that respect and it‘s going to be difficult for an appellate court to override the jurors‘ own statements and disregard them while coming to the conclusion that this was a biased jury.

KLIEMAN:  Gerry Lefcourt, if I can switch topics very quickly to Martha Stewart.  She has been in jail.  She certainly says she‘s pursuing her appeal.  Appellate judges have got to consider the fact that she‘s already served her sentence.

LEFCOURT:  You know, I think it cuts both ways.  You know, I read her appellate brief today and it‘s really strong.  She‘s got really four good strong points.  But you‘re right.  Some judges might say, look, she‘s going to serve her time anyhow, it‘s over.  Why give her a new trial?  Others are going to look at these four points and say it doesn‘t matter that she served her time already.

I mean this is a woman who was the head of a company.  She can‘t be the head of a company—a public company with a criminal conviction.  She can‘t hold the position she held on the New York Stock Exchange.  She can‘t do any of those things.  And so they‘re going to look at these points and say, you know, if they‘re right, then she‘s entitled to a new trial, but the worst thing about it is if she‘s correct on any one of these points, all we do is get another Martha Stewart trial.

KLIEMAN:  All right.  And the last word to you, Charles Gasparino, I only a few seconds left.  Is she a winner in the end or is she a loser?

GASPARINO:  I think Martha Stewart is a loser.  Listen, she is as guilty as they come.  I covered this case from the beginning.  That was a very strong case.  I believe her company is in deep, deep trouble.  One of the reasons why it‘s in deep, deep trouble, even though the stock has gone up lately and don‘t ask me to explain why that is, but even though, this is a company that she dragged down with herself because she just didn‘t admit that she did something wrong from the beginning.

LEFCOURT:  The stock is going up, Rikki, because this country not only loves to destroy the rich and famous...

GASPARINO:  Oh, that‘s baloney.

LEFCOURT:  ... but we love to rehabilitate them as well.

GASPARINO:  That‘s baloney.  That‘s baloney.

KLIEMAN:  Well...

GASPARINO:  Don‘t buy the stock.

KLIEMAN:  I‘m not even going near there at this point in time.  You guys are great.  Charles Gasparino, Gerry Lefcourt, Christopher Bebel, thanks so much.

Coming up—when you‘re on trial for murder, should it matter who you killed?  Both Scott Peterson and Robert Blake were accused of killing their wives, but the victims have almost nothing in common.  That shouldn‘t matter when the defendants are brought to justice, but apparently it does.  That‘s my “Closing Argument”.

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KLIEMAN:  Coming up, many of you were outraged at the story we brought you last night about an Army reservist jailed when her unit scrounged for equipment in Iraq.  I‘ll read your e-mails coming up.

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KLIEMAN:  My “Closing Argument” - why should the character of the victim control the course of a criminal prosecution?  This year, two California murder cases dominated our headlines.  One is virtually over and the other has barely begun.  Yet both are treated dramatically differently because of the quality of the person killed, rather than the person charged with the crime.  I‘m talking about Scott Peterson and Robert Blake, but in reality, I‘m looking at Laci Peterson and Bonnie Lee Bakley.

Scott Peterson was charged, convicted and sentenced to death.  Robert Blake is charged with murder with a maximum penalty of life in prison.  Scott Peterson was unknown to us when Laci and her unborn child were murdered.  He became part of the fabric of our lives for two years.  The image that remains is not his.  It‘s that of Laci with a wonderful smile, anticipating the birth of her first child.

The country became transfixed with avenging her death.  The last request of the jury was to look at her photographs again.  Their death verdict was a verdict for Laci as much as it was against Scott.  Robert Blake is presumed innocent.  He will never face the death penalty, even though he allegedly solicited at least two other people to kill his wife, Bonnie Lee Bakley.  He was even charged with a special circumstances of lying in wait, which could have pushed the prosecution to the ultimate punishment.

But the victim has been painted as an evil person, a drifter, a woman who used her body and her schemes to defraud men of money so society cares less about her.  Is any of this right?  Blake and Peterson were merely two examples, but this inequality happens throughout the country.  Is killing a rich person worse than killing a poor one?  Is killing a white person worse than killing a person of color?  Should one convicted defendant be given death and another life because of how many victim impact statements are heard?

Shouldn‘t we look at the circumstances of the crime itself as the controlling factor?  The deliberate intentional taking of a life is a depraved act no matter who the victim may be.

Coming up in 60 seconds, if you ever spent an hour digging your car out of a snow bank, you won‘t like what one big city mayor is up to.

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KLIEMAN:  Welcome back.  I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night I spoke to Major Cathy Kaus, an Army reservist who was jailed for six months after her troops stripped abandoned Army vehicles for parts.  She said her unit was just trying to move safely from Kuwait to Iraq and scrounged for parts and vehicles that lacked.  Now she‘s out of jail, she‘s asking for clemency to go back and serve, but the Army won‘t let her.  I said although it was against the rules, the punishment was way too harsh for the crime.

Many of you agreed including Dennis Geehan in Seattle, Washington.  “Punishing these soldiers for innovation in the face of adversity has been a serious miscarriage of military justice.  What‘s next?  If soldiers in a firefight grab ammo abandoned by another unit, would the presiding court-martial judge imprison them too?  The major‘s use of the abandoned equipment made sense and showed leadership.  It was the court‘s own judgment that showed no good judgment at all.”

And Dean Swift in West Virginia.  “Comshaving, as it was called in the U.S. Marine Corps during Vietnam was normal, necessary, and expected.  Stripping disabled vehicles for parts was standard practice in my era and in World War II as was acquiring abandoned working vehicles and equipment.  Even though Iraq has turned into a media event, it‘s still a war and in war an officer‘s first responsibility is to his or her men and women.”

Dean and Dennis, I agree with you 100 percent, but other people feel that there are rules that must be followed in a military organization and if you break a rule, even for a good purpose, you must face the consequences.  Who knows?  Perhaps a higher authority will agree with us and grant clemency.

Now some of you have very graciously e-mailed the show with messages for me.  Here‘s one from Shannon Brent in Coos Bay, Oregon.  “Long time, no hear.  You may remember my daily e-mails at Court TV.  Sorry about your hubby‘s recent woes.  You could have been in D.C. married to a U.S. cabinet member.”

Shannon, great to hear from you again and just to set the record straight, my husband, Bill Bratton, has not sought and does not want to be the head of Homeland Security.  He intends to honor his commitments as chief of police in Los Angeles.  He has very many goals left to accomplish.  And Washington?  Well, perhaps sometime but not now.

Finally, Dan returns from vacation next week, but Leah Eselgroth in Massachusetts has a message for him tonight.  “Dan, I know you‘re on vacation, well earned, and I love your professional and boyish charm, but I really loved coming to know Rikki Klieman.  I hope it‘s true that Rikki will play a judge on NYPD Blue.”

Leah, Dan and I go all the way back to our work on the O.J. Simpson case and it is a privilege to sit in his chair.  My life now is full of riches.  In addition to being here, I‘m on the “Today” show, I‘m on Court TV on occasion, and I am going to play a lawyer on the NBC series “Las Vegas” with James Caan on January 17 and a judge on “NYPD Blue” on February 8.  Both of my joys, acting and broadcasting in 2005.

Send us your e-mails.  Send them to the abramsreport—one word—

@msnbc.com.  We do go through them and read them at the end of the show.

And now to our “OH PLEAs!” segment.  This one comes from Boston where residents and city officials are digging in for a big fight.  There‘s an unwritten law about parking spots in densely populated neighborhoods during the winter that goes something like this.  You shovel it, you own it.

Well what that has meant for Bostonians is that if you didn‘t put in the time to get rid of the snow and the spot where you parked your car, you could be in for some vigilante justice.  Anything from slashed tires to broken windows to the top of a fire hydrant that was thrown through the back window of my own car when I parked in a space that someone thought they owned when I used to live there.

Well some residents mark their shoveled out spaces using garbage cans and shopping carts to protect their spot.  But now Boston‘ mayor is fighting back, declaring war on the proprietary parkers and sending city crews out to patrol the streets and at a big cost, clearing away the territorial traffic cones and the old furniture parked along the street.  Now, some residents feel that a Boston neighborhood tradition has been violated.  A mother visiting her son tells the mayor, Menino, shame on you.

Well, that does it for us tonight.  It‘s been great being with you. 

Dan is going to return tomorrow with a look ahead to the big cases in 2005. 

Happy New Year.

And coming up next, “HARDBALL” with Chris Matthews.  Good night and thanks.

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

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