updated 2/3/2005 11:30:02 AM ET 2005-02-03T16:30:02

Guest: Paul Pfingst, Joe Tacopina, Molly Murphy, Janene Scully, Harvey Levin, Lisa Wayne, Bob Grant, Jon Douglas Rainey, Matt Johnston

DAN ABRAMS, HOST:  Coming up, we‘ve got the list of questions prospective jurors are being asked in the Michael Jackson case, including have you been the victim of inappropriate sexual behavior. 


ABRAMS (voice-over):  Another of the 41 questions, do you do you know anything about the 1993 investigation against Jackson?  Why are they telling jurors about that other investigation?  We talk to one of the prospective jurors. 

And Kobe Bryant‘s accuser back in court today in a civil suit against Bryant and let‘s just say she looks a little different. 

Plus, if you think you are safe in your home, two ex burglars have got some surprises for you.  They break in to show you just how easy it is.  In fact, they have a new TV show devoted to robbing homes. 

The program about justice starts now. 


ABRAMS:  Hi everyone.  First up on the docket tonight, we have got the questions that all the Michael Jackson jurors had to answer.  And one of them I think is just downright startling.  Among the 41 questions on the survey, do you know or have you read, seen, or heard anything about the publicity regarding the 1993 to 1994 investigation against Michael Jackson? 

Have you or any relative or a close friend ever been the victim of inappropriate sexual behavior of any kind, and the standard, how much news have you read or watched about the current Michael Jackson case?  “My Take” -- what are they doing asking people if they are familiar with the ‘93 and ‘94 allegations against Jackson? 

If someone wasn‘t familiar with the allegations, well, the questionnaire changed that.  Now, he or she can get familiar with them.  Also, I think the defense should be concerned that people will have a difficult time admitting they have been the victims of sexual abuse to a group of strangers in the courtroom. 

Joining me now jury consultant Molly Murphy, criminal defense attorney Joe Tacopina whose client is one of the un-indicted coconspirators and Paul Pfingst, former San Diego County D.A. 

Paul, you and I were on this program and you said that there was no way that any of these jurors would have known about the previous allegations, the ‘93 allegations.  Well, it seems pretty clear now that there‘s no way any juror on this case is going to not know that Michael Jackson was accused of something back in ‘93. 

PAUL PFINGST, FORMER SAN DIEGO COUNTY D.A.:  Yes, the prosecutors here have to be loving that question because that‘s sort of a prosecutor‘s dream.  If you didn‘t know that there was an investigation of Michael Jackson in 1993 or 1994, you do now.  So, the juror—any juror filling out that questionnaire who didn‘t know that there was a prior history here would certainly be scratching their heads and saying, oh, really, there was a prior case like this with Michael Jackson.  And so, it‘s very difficult to understand why the defense would make it so specific as opposed to Dan, which normally happens, have you heard anything else about Michael Jackson being accused of anything in the course of his career and not something as targeted as this question is. 

ABRAMS:  Joe, I mean I don‘t get it. 

JOE TACOPINA, CRIMINAL DEFENSE ATTORNEY:  Yes, well neither does the defense, Dan.  I can tell you that the defense vigorously argued for this not to happen and they—it‘s not that they didn‘t need this question or want this question in here, Dan.  They need this question in here the way everything stands right now.  But what they needed was a ruling from the court regarding the prior allegations whether they are going to come into this trial or not and that‘s why you need these rulings prior to jury selection.  Because now, I agree with you and with Paul‘s assessment that to some degree, although I don‘t think the question is that pointed in that it talks about a prior sexual allegation...

ABRAMS:  Wait.  Wait.  Joe...

TACOPINA:  ... it talks about an investigation. 

ABRAMS:  Right.  Still, as if people are going to say, well, you know, it‘s just an investigation.  I mean the bottom—it says the publicity regarding the, not any...


ABRAMS:  It says regarding the...

TACOPINA:  Listen...

ABRAMS:  ... ‘93, ‘94 investigation against Michael Jackson. 


ABRAMS:  I mean what are they doing? 

TACOPINA:  What they are doing is creating point one on any potential appeal. 

ABRAMS:  Well fine...

TACOPINA:  We‘re already talking about appeals before we get to the trial.  But you‘re right.  This—if this is kept out of the trial, look, this is all going to be moot and the defense will need this if the judge rules that that—if these other allegations are going to be deemed inadmissible, which by the way, I think he is leaning in that direction.  I think...

ABRAMS:  All right.

TACOPINA:  ... that‘s where it is going.  If that comes in, this question is not only necessary, but it‘s crucial to weeding out jurors who may have heard and have predisposed dispositions about Michael. 

ABRAMS:  Before we talk about the issue of people being asked have you ever been touched inappropriately or sexual behavior, et cetera, Molly Murphy, you have any explanation for this question about informing jurors about the ‘93-‘94 investigation? 

MOLLY MURPHY, JURY CONSULTANT:  Well, think the fact that it‘s been asked means that it‘s been out there.  It has been out in the media throughout the last year or so.  It‘s a question that if you don‘t ask it point blankly, you won‘t know the answer.  And the fact that there were previous allegations, the fact that there was a settlement, there are jurors who will think that, well, if it‘s been—if this has happened before, chances are this happened again. 

ABRAMS:  Right, but there‘ll also be jurors...

MURPHY:  And so...

ABRAMS:  ... who didn‘t know about it who now know about it.

TACOPINA:  Oh Dan...

MURPHY:  Correct.  I agree with that but also, during the numerous trials that I have been involved with that you really have to get over the fear factor and go right to the questions.  And if somebody does have already a previous prejudice or bias towards Michael Jackson because of the previous allegations, you better get the information now. 

TACOPINA:  Absolutely. 

ABRAMS:  Yes.  All right.  Let me move on to question numbers four and

·         I mean question 33 and 34.  Have you or any relative or close friend ever been accused of inappropriate sexual behavior and have you or any relative or close friend ever been the victim of inappropriate sexual behavior of any kind.  You know, Molly Murphy, I‘d be concerned you‘re not going to be able to get jurors who are going to be able to tell the truth in a courtroom.  It‘s a very personal question.

MURPHY:  It is, but the purpose behind a questionnaire, Dan, is to be able to get candid answers to these questions.  They are more likely to be honest in a questionnaire rather than in open court or at a side bar.  And once again, questionnaires are a fabulous tool, but you have to go eyeball to eyeball with these jurors as well. 

ABRAMS:  Joe, you‘d be worried if you‘re the defense you‘re not going to get honesty. 

TACOPINA:  Well, you know, you‘re always worried in a high-profile like this and this is high profile, obviously, as it gets Dan, that you‘re going to have a juror with an agenda or what they call a stealth juror.  I mean you‘re always concerned about that.  You know, there was a potential juror who wrote an article for the “Santa Maria” press who was actually a member of the press...

ABRAMS:  And she‘s on the show in about 10 -- in about five minutes.

TACOPINA:  Well she‘ll tell you what she heard in there about people talking about book deals and stuff like that.  I mean look, that Peterson juror is on like the media circuit.  He‘s still calling around trying to get on shows.  But here‘s what I‘ll say to that.  That is an important way to do it, to get these questions out. 

If we have a juror on there, if there was a juror on this jury in particular who has been either the victim of sexual abuse as a child or knows a victim, how—that is the most important perhaps question...


TACOPINA:  ... in this case.  And what the judge says, I think, the front page of this question is the most important.  It talks about the fact that you could write next to your response confidential.  If you do that, Dan, the judge will hold a private hearing with the judge and the attorneys not in open court.  And that sort of gives that juror the ability to let the court and the parties know what happened in their past, but also keep it confidential and private. 

ABRAMS:  The race issue coming up in the jury questionnaire, it‘s well question 25.  Do you think your feelings about or experiences with people from different races might affect your ability to serve as a fair and impartial juror in this case.

I mean, Paul, this is one of those questions that I think jurors just use to get off the case.  They say things like...


ABRAMS:  ... yes, I‘m a racist.  I mean are you going to get almost anyone who‘s going to give you an honest opinion that‘s going to say well yes, I would not be able to judge someone of another race fairly? 

PFINGST:  Yes and no.  Frankly, I have seen a number of jurors raise their hand and said I just got mugged some—the other day.  The person who mugged me was black.  I think that may carry over.  But generally, your analysis is right, that‘s a type of question that people use who want to get off a jury and they come up with some type of answer to that question that might get them gone.  And so, it‘s a common question.  You have to ask it.  But you don‘t get a lot of hits on that question.  It‘s sort of rare for somebody to raise their hand and say yes I have a problem with somebody who‘s black, Latino, white or whomever. 

ABRAMS:  Question number 20:  Have you ever worked or volunteered for a child advocacy group or for a group dealing with child safety, child abuse or mistreatment or children‘s rights?  Joe, if the answer is yes to that one and you‘re the defense, do you just get him off right away? 

TACOPINA:  Well you know, the knee-jerk reaction is to say yes, you don‘t want someone who has sympathy towards anyone who claims to be, any child who claims to be the victim of abuse.  But if you are confident in your facts in this case, and I know Mesereau and company are, if you‘re confident in your ability to disprove or shake these allegations because they‘re never told the same way twice, and the mother has a history of putting words in their mouth.  If you are confident in that, those people may be your best jurors because they will be able to tell a real victim from somebody who is rehearsed. 

ABRAMS:  Molly, what do you make of that? 

MURPHY:  Yes, I agree with Joe.  My first bet would be kick them off, but I would dig deeper with additional questions and find out because the defense is also going to be saying that Michael loves children and he wouldn‘t hurt a child if his life depended on it.  So there‘s a double-edge sword on that one.

ABRAMS:  Question—sorry—number 39.  Have you ever known anyone who has met Michael Jackson or spent any time at Neverland?  And apparently, Paul, the answer to this question from some of the prospective jurors has been yes. 


ABRAMS:  I mean the bottom line is that he lives there.  People work at the ranch, et cetera.

PFINGST:  And a lot of people visited the ranch.  Michael Jackson would open the gates and let people in on various days and people from the neighborhood would come in and...


PFINGST:  ... people would have functions there.  So, I think the positive hits on that question are going to be fairly large and that‘s something that not only should be asked, but something I think is going to be explored pretty deeply because a lot of people in that neighborhood like Michael Jackson. 

ABRAMS:  Yes.  I have been to Neverland and I probably would have had to say, you know, I have been there. 

TACOPINA:  Did you stay overnight, Dan?

ABRAMS:  I didn‘t stay overnight there, Joe.  I said the only way I am staying overnight is if you let my lawyer, Joe Tacopina, come with me.


ABRAMS:  Molly Murphy, Joe Tacopina, Paul Pfingst, thanks a lot. 

PFINGST:  You‘re welcome.

ABRAMS:  Coming up, we talk to one of the potential jurors who has been excused from the trial.  What was it like?  What were people saying? 

And the woman who accused Kobe Bryant of rape back in court looked a little different than she did before the criminal trial.  We‘ve got the details of today‘s hearings. 

Plus, a jury sentences a man to die after consulting the Bible.  His lawyers argue the Bible has no place in the jury room.  Now a State Supreme Court will decide if it‘s improper to consult the Bible when deciding whether someone lives or dies. 



ABRAMS:  Coming up, she was one of the potential jurors in the Michael Jackson case.  She‘s here now to tell us what it was like inside the jury pool. 



ABRAMS:  We‘re back.  When it comes back to the Michael Jackson jury, we‘ve heard from a lot of people watching from the outside, but what was it like to be a prospective juror.  What were people saying who were actually there? 

Janene Scully was among the pool of prospective jurors.  She was called for jury duty, showed up on Monday and was dismissed.  And on yes, she also just happens to work for the “Santa Maria Times” and wrote an article about her day in the Santa Barbara County Courthouse in this morning‘s paper.  Jeanne joins us exclusively now from Santa Maria, California.  Thanks a lot for taking the time.  We appreciate it. 


ABRAMS:  All right.  So tell me what happens.  You walk in the door.  Do you know when you get your summons, oh my, I‘m being summoned for the Michael Jackson case. 

SCULLY:  I suspected, but my original report date was January 26.  When I called the night before, they instructed us to call back Friday night.  And when I called back Friday night, I was told to report Monday morning and pretty much knew at that time it was going to be for this particular case. 

ABRAMS:  So, you go into the jury assembly building and you say it‘s about 8:00 a.m. in the morning and what happens? 

SCULLY:  We walk in.  Most of us got there pretty early.  I think we were concerned about parking.  We walked in.  They basically made sure that we were there on the right time, the right day.  They divided us alphabetically.  First half in one room, second half in another, went through the short video explaining the role of juries and the importance of jury duty.  And then they handed us our badges and had us put them in a plastic holder that we were going to wear.  And that would be our new name.  The number would be our name so that our identities were not out in the media. 

ABRAMS:  So, you say that you saw people reading newspapers previewing the case and one would-be juror proclaimed his plans to write a book.

SCULLY:  Yes, he kind of said that laughingly and I was surprised that they didn‘t instruct, because of the unusual circumstances of this case, that they didn‘t instruct people to avoid newspapers and to avoid chatting about the case.  Just because it just, you didn‘t know who was going to be sitting next to you and if a potential juror was right next to you. 

ABRAMS:  And did you get—reach a point where you got to see Michael Jackson when you walked into the courtroom or did it never reach that point? 

SCULLY:  After they gave us our badges, we strolled over to the courtroom and they basically sat us down.  And the judge asked how many of us could serve on a six-month jury and how many needed to claim hardship for whatever reason.  About two-thirds of the group left and went out to fill the questionnaire.  I was one of them that stayed behind to request a deferral because I could not afford to be off for six months. 

ABRAMS:  And did you get to see Jackson at all? 

SCULLY:  Yes, he was in there.  It was kind of striking, when we walked in and it was very orderly.  They instructed us—the deputies made us sit in assigned seating just basically so that we were sitting and not scrambling for seats.  And as we were—walked in, Mr. Jackson, his attorneys were standing facing us and just kind of trying to make eye contact and smile.  One of the attorneys was whispering in Mr. Jackson‘s ear and people were just pretty somber at that point. 

ABRAMS:  Did you smile back or anything?  Or you know, give him a wink or say, hey...


ABRAMS:  No.  All right.  All right.  Janene Scully, in the final word

·         final line of your article, just another not so normal day of the new normalcy at the Santa Maria courthouse.  Thanks a lot for joining us.  We appreciate it.

SCULLY:  Thank you.

ABRAMS:  Coming up, breaking news in the Jackson case.  “Celebrity Justice” is reporting that Jackson‘s ex-wife now seems eager to testify against him and that some of the prosecution‘s evidence may be contaminated. 

And the woman who accused Kobe Bryant of rape back in court for the civil trial and she looks a little bit different.  “Celebrity Justice” has got video of that as well.

Plus, you may think your home is safe, but wait until you see what two ex burglars do to houses around the country.  It‘s caught on tape for a new show about robbing homes.  Coming up. 


ABRAMS:  “Celebrity Justice” has got a couple of breaking news stories in the Michael Jackson case and the Kobe Bryant civil case.  “Celebrity Justice” creator and executive producer, attorney Harvey Levin joins me now.  All right, Harv, I want to go over three topics with you real quick. 

Number one, you‘ve got a story about possible contamination of key evidence in the Jackson case. 

HARVEY LEVIN, “CELEBRITY JUSTICE” EXECUTIVE PRODUCER:  Right Dan.  During the grand jury testimony, the accuser was talking to the grand jury and handling magazines that prosecutors say Jackson used to seduce this boy.  And at a point, one of the grand jurors looked at one of the sheriffs there and said, have you guys fingerprinted this yet and the answer was no.  So we know this is leaving it left wide open for the defense to argue contamination, especially since Jackson‘s fingerprints and the boy‘s fingerprints on the same page of one of those magazines.  It could basically open the door up to the kind of testimony we saw in the O.J.  Simpson case. 

ABRAMS:  Wow, which would basically say the boy may have gotten his fingerprint on there, not because it was at Michael Jackson‘s home, was because he was in front of the grand jury. 

LEVIN:  I think you can expect the defense to make that argument.

ABRAMS:  You say that Michael Jackson‘s ex-wife could now be a witness for the prosecution. 

LEVIN:  This is a big deal, Dan.  I can tell you that as late as today, Debbie Rowe‘s lawyer was in court and there was a court case over the custody of the two kids.  And we know that this is very contentious right now, very bitter.  Debbie Rowe is fighting for custody. 

There was—they tried to settle this thing where she would agree to occasional visits, but Jackson didn‘t want her to visit at all and now this has gotten bitter.  We know she has been subpoenaed by prosecutors to testify in this case and one of the things about this that‘s so interesting is Michael Jackson in the custody case is trying to keep everything confidential, especially the confidentiality agreement she signed.  And it has in there this key item that talks about Jackson‘s sexual habits and drug use.  We know that Debbie Rowe knows a lot about Michael Jackson‘s alleged drug use because before she was his wife, she was his nurse. 

ABRAMS:  It says purported drug use, right? 

LEVIN:  Right.  That—well it said—actually when you look at the document, it says drug use, Dan.


LEVIN:  So it actually says that.  It says she‘s prohibited...


LEVIN:  ... from talking about drug use or sexual habits, but realize, even though she signed a confidentiality, prosecutors could tell her to talk...


ABRAMS:  Yes.  Yes.  All right.  Very quickly, Harv, Kobe Bryant civil case, what happens there? 

LEVIN:  Well the accuser showed up in court.  She is pregnant.  She was there with her new husband.  It looks like she‘s around five months pregnant.  She went into the federal courthouse today.  This is the civil lawsuit.  The judge really put the brakes on, lawyers on both sides and said, look, I am sick of you guys putting gratuitous information that‘s kind of salacious that the press will pick up on in these legal papers because it‘s become the old trick, Dan, as everybody knows, in these celebrity cases, you throw in things that you know the press will pick up.  The judge said you guys better stop it or else. 

ABRAMS:  And any—real quick, any sense of when this case could ultimately go to trial?

LEVIN:  Well it sounds like the judge is ordering that Kobe‘s deposition be taken sooner rather than later.  So it sounds like he‘s trying to push things along.

ABRAMS:  Harvey, good to see you.  Thanks for coming back.

LEVIN:  Good seeing you Dan.  Bye.

ABRAMS:  And you can catch—if you want more in the Michael Jackson case, I will be on the “Today” show tomorrow talking about the Jackson trial.

Coming up, the Bible may say thou shall not kill, but it also refers to an eye for an eye.  Advice a jury apparently took to hear when it sentenced a man to die after consulting the Bible.  Now the convict is challenging the sentence, saying jurors never should have been consulting the Bible. 

And they once made a living stealing your stuff.  Now, they are doing it on TV.  They join us.



ABRAMS:  Coming up, jurors sentence a man to die after reading Bible verses in the jury room.  His lawyers say that‘s no way to decide on the ultimate punishment.  Could reviewing the Bible means a man on death row gets a reprieve?  First the headlines. 


ABRAMS:  We‘re back.  It‘s in the Bible.  Leviticus 24:20, fracture for fracture, eye for eye, tooth for tooth, as he has caused disfigurement of a man, so shall it be done to him.  It‘s followed by this Leviticus 24:21.  Whoever kills a man shall be put death.  But should a Colorado jury be allowed to study Bible verses like that while they are sequestered, even bring them into the jury room when deciding whether to vote for life or death. 

That‘s the issue in the case of Robert Harlan, convicted in the 1994 kidnap, rape and murder of 25-year-old casino worker, Rhonda Maloney and of shooting a woman who tried to help Maloney, putting her in a wheelchair for life.  The jury sentenced Harlan to die by lethal injection.  And while the verdict stands, Harlan‘s death sentence was overturned.

District Judge John Vigil ruling that jurors improperly studied the Bible during their deliberations and that since the death penalty must be imposed in a constitutional matter, jury resort to biblical code has no place in a constitutional death penalty proceeding.

Now, Colorado Supreme Court will decide whether Harlan‘s death sentence should be restored.  “My Take”—look, the Bible is justly called the good book and I think it‘s perfectly appropriate for jurors to go home and read the Bible every night if they‘re so inclined.  But it‘s one thing for jurors to turn to the Bible for solace and comfort and something else entirely for a jury to effectively seek legal instruction on a capital case in its pages. 

Jurors are instructed to limit their deliberations to the evidence and the law as the judge explains it when they‘re charged and frankly, in this case it seems some of the jurors may have gone beyond that.  Bob Grant is executive director of the Colorado District Attorney‘s Council and a former Adams County D.A.  He attended yesterday‘s hearing in the case.  Bob, good to see you again.  And Lisa Wayne is a criminal defense attorney who sat in as an observer in the original Harlan trial. 

All right, Lisa, lay out for us what you think the problem is here.

LISA WAYNE, CRIMINAL DEFENSE ATTORNEY:  Well, the problem is exactly how you put it, Dan, and that is no one is arguing the fact that you can certainly go home and seek solace, seek comfort in those religious beliefs that you might have as individuals.  Jurors are, of course, allowed to do that.  What happened in this case though is that jurors were actually seeking out positions in the Bible to bolster their arguments against other jurors or to help other jurors and influence their decision in reaching the death penalty...

ABRAMS:  Let me read...

WAYNE:  ... and that‘s where you have the whole problem...

ABRAMS:  Let me read...

WAYNE:  You cannot do that.

ABRAMS:  Juror Steven Wright said they had looked it up and there was like 10 different spots, you know, if you kill, you should be put to death.  And it was two no‘s and one maybe or maybe three no‘s or one maybe and those people were turned around. 

WAYNE:  That‘s right.

ABRAMS:  Bob, appropriate? 

BOB GRANT, COLORADO D.A.‘S COUNCIL:  Well, Dan, first of all, I was also trial counsel in Mr. Harlan‘s case, been with the case since 1994.  And our position is this.  In the fourth and final step of a death penalty jurors‘ deliberations, you are asking that juror to make the most profoundly moral decision that there is for one human being, and that is whether or not another should be put to death. 

And saying to those people you cannot consult.  You cannot take solace.  You cannot in fact seek out your—the basis and the underpinnings of your moral beliefs.  We‘re just denying the obvious because those folks all knew an eye for an eye as a practical matter.  Everybody has heard that phrase.  The fact that one juror may have brought in one citation from a Bible to the jury room isn‘t enough to overturn a death penalty verdict that was grounded in solid, irrefutable evidence. 

ABRAMS:  Bob, can you consult your pastor, then, using that same theory? 

GRANT:  To the extent that sequestered jurors are able to consult with anybody, I suppose.  But you know, there was a breakdown in this case.  Somebody should have cleaned out the Bibles from the hotel rooms but they didn‘t.  The fact of the matter is I don‘t think anybody would advocate bringing in a Koran or a Bible or anything else into the jury room. 

ABRAMS:  But in non-sequestered cases, Bob, right, I mean people are going to have Bibles in their homes.  We‘re not going to suggest to jurors, in part of the jury instruction, hey, by the way, don‘t go read any of the Bibles in your house. 

WAYNE:  Right. 

GRANT:  Well, in fact, judges usually tell people, don‘t read anything about this case.  Don‘t discuss anything about this case, et cetera, when they go home, after a day of testimony or a day of deliberation.  But you are right, nobody goes down to, you know, don‘t read the Bible, don‘t read the Koran. 

We expect jurors to make decisions based on the law and the evidence.  They have all taken an oath to do that.  They were all examined about that in the beginning in the trial and they all agreed they would do that and that‘s what they did in this case.  We just think that the happenstance that a jury verse or two was discussed in the jury room shouldn‘t overturn this death verdict in this heinous murder. 

ABRAMS:  And would you have a problem, Lisa, let‘s assume that no one had actually written down quotes, right. 

WAYNE:  Right.

ABRAMS:  Let‘s assume that they had just said, look, they knew the Bible.  Let‘s say there were a couple of jurors who said look, remember the Bible says this. 

WAYNE:  Right.

ABRAMS:  Would you still have the same problem? 

WAYNE:  No, I think that happens all the time in the jury room and...

ABRAMS:  That‘s OK...


ABRAMS:  ... you would not be...

WAYNE:  Well no because...

ABRAMS:  ... about the verdict.

WAYNE:  Well, this is what happens, though, Dan.  I mean this is a reality of jurors is that you are influenced by your peers and you‘re pressured, so when you are bringing in the hard book, and who knows, I don‘t know what version of the Bible it was.  And I disagree with Mr. Grant that it was just a couple of verses. 

The evidence is that they were really in there seeking information to bolster their opinion about the death penalty and in fact, that the prosecution was being aided by God in this case and that—and therefore, they should find the death penalty.  And so, it‘s different when you are bringing in documentation.  You are saying, look at the Bible.  I am showing you it here.  I‘m not relying on my memory or my beliefs, but I‘m showing you this is what our Bible says. 

ABRAMS:  But what‘s the difference...

WAYNE:  That‘s a lot different in terms...

ABRAMS:  I mean but why...

WAYNE:  ... of what you‘re looking at and the influence in the jury room when it‘s going...

ABRAMS:  But Lisa, the bottom line is if you are not supposed to rely on outside sources at all and if someone came in and said, for example, I remember that you know, that the Bible says X, is that really as a—I mean they‘re still bringing in outside influences.

WAYNE:  Well then—but jurors can disagree with it at that point because you are not being confronted with their version and people are simply relying on their memories...

ABRAMS:  Let‘s say you‘ve got...

WAYNE:  ... OK.

ABRAMS:  ... a religious scholar on the jury who says don‘t tell me. 

I can tell—I can recite that backwards and forwards.

WAYNE:  And you may, but again that‘s all subjective in terms of what your belief is the Bible is.  What happened here is we had more than one juror agreeing on a passage in the Bible and asking that others be influenced because...


WAYNE:  ... this is their Bible and their documentation.  That‘s a lot different.  I mean you get scholars on juries.  You get priests on juries.  You don‘t kick them off because of that... 

GRANT:  I don‘t think Ms. Wayne is factually correct there.  But more to the point and I think what‘s being missed in the discussion is we‘re done here with fact-finding.  We‘re done with the normal course of a trial.  We‘re even done with the normal course of a sentencing hearing.  We are now at the only place in American jurisprudence where jurors are being asked to make a profoundly moral decision.  Having found all the facts, the only question left is should this person live or die...

WAYNE:  But that...

GRANT:  ... and to restrict them in terms of their—to restrict them in terms of their religious background whatever and beliefs whatever that might be is just wrong in that particular context. 

ABRAMS:  Bob...

WAYNE:  But that‘s not what we‘re talking about...

ABRAMS:  Hang on...


ABRAMS:  Bob, let me read you from Judge Vigil‘s opinion.  If there is a reasonable possibility that juror exposure to biblical passages requiring that death be the punishment whenever an individual takes another person‘s life and commanding jurors to follow government authorities affected one or more jurors‘ decision to return a death verdict in this case, the death sentence must be vacated.”

What do you make of that? 

GRANT:  I don‘t agree with that reasoning nor do I agree with the facts that he found and stretched to find, to come to that reasoning.  In fact, all of the facts had been found before this moral question was placed.  They had found aggravating factors.  They had found guilt beyond a reasonable doubt.  They had found that the aggravating factors outweighed the mitigating factors.  They had done everything except make that individual moral choice should this man die. 

WAYNE:  There‘s nowhere in the...

GRANT:  And that is not—that‘s not where Judge Vigil‘s reasoning goes. 

WAYNE:  There‘s nowhere on those interrogatories and in that form when they reach a death verdict that has any box that checks off they‘ve reached a moral decision in the case.  Their obligation as jurors and we‘re obligated under the law to tell them that is that they have to follow those jury instructions.  There‘s no box that talks about I now have come to a moral decision...


GRANT:  Because the defense attorneys in the Harlan case argued the morality of their decision...

ABRAMS:  Lisa...

GRANT:  ... in their particular—and they cited the biblical

reference to the story of Abraham and Isaac or Abraham and Isaac because it

fit some of the facts that they wanted...

ABRAMS:  Lisa...


ABRAMS:  ... Mike, one of the people who works on the stage here with me just wrote down a question for me.  He‘s saying well in essence, I don‘t get it, you know, the Bible is in the courtroom.  People are putting their hand on it, swearing on it and now, you are saying, well, you know, yes, you can put your hand on it there but you can‘t read it later. 

WAYNE:  That‘s totally correct because you have to recognize, too, that there may be witnesses that are swearing to tell the truth.  Obviously, jurors take an oath.  But everybody has different subjective beliefs about what their morality is.  My morality may differ from yours.  My belief about reading a passage in the Bible may differ.  That‘s not what a court of law is about to interpret those passages and then find them in favor of whatever my decision is.  I mean that‘s not where we are in a court of law. 

ABRAMS:  Got to wrap it up.  Lisa Wayne, good to have you.  My old pal Bob Grant, good to see you again Bob. 

GRANT:  Good to see you Dan.  Congratulations.

ABRAMS:  Thank you.

Coming up, if you think you are safe in your home, two ex-burglars have got some surprises for you.  They break in and show you just how easy it is.  In fact, they have a new show devoted to robbing homes. 

And some bad news today for America‘s suit happy trial lawyers.  It‘s my “Closing Argument”.



ABRAMS:  We‘re back.  A new show premieres tonight on the Discovery Channel that‘s bound to make you think twice about just how safe your home is.  It shows you exactly how easy it is to break into a house and what you can do about it.  The concept is pretty simple.  They rig a house with a lot of hidden cameras and then one of the show‘s hosts, an ex-burglar, breaks into the house while you sit with the other host, also a former thief and watch how easy it is for someone to come in and rob you in a matter of minutes.


UNIDENTIFIED MALE:  My heart is going to jump out of my chest.


UNIDENTIFIED MALE:  Feeling very violated right now. 

UNIDENTIFIED MALE:  He‘s destroying our freaking house. 




ABRAMS:  Well after they show you how vulnerable you are, they offer you some tips on making your home safer, then they try to rob the house again.  As I mentioned, the hosts of the show are experts on crime.  They are two retired burglars Jon Douglas Rainey and Matt Johnston join me now.  Gentlemen thanks a lot.

UNIDENTIFIED MALE:  Dan, thank you for having us.

UNIDENTIFIED MALE:  Thanks for having us...

ABRAMS:  All right.  So Jon, explain to me what happens.  So you go and you saw the video there.  You rob the house and then what?  The show pays for a new security system and the other one of you comes in and tries to do it again? 

JON DOUGLAS RAINEY, “IT TAKES A THIEF”:  Well, what happens is after I rob them, I return their stuff and then we have a moment where they get to tell me how much it affected them to actually watch what happens when you really get robbed.  Then I leave.  My co-host, Matt, then does a security renovation for them and then I promise to return a week or two later and we see if they are using the technology that we gave them and to see if they changed their patterns. 

ABRAMS:  And so then, Matt, what do you do?  And then afterwards, you give people tips on what they can do to prevent it from happening. 

MATT JOHNSTON, “IT TAKES A THIEF”:  Right.  Well basically the whole lead into the show is what thieves really look for, how they target their victims.  And these are also tips in what not to do and how to not be a victim.  And then so through that series of events, we get to Jon, actually taking advantage of these weak points and robbing the home.  And then after that, I do a cool makeover where I actually show people very simple and inexpensive ways as well as some pretty high tech gadgetry ways to keep their home safer. 

ABRAMS:  Here‘s another piece of sound from the show. 


UNIDENTIFIED MALE:  The number one enemy of a thief is time.  The longer it takes me to get in your room, the less likely I am to want to get in there. 


ABRAMS:  Jon, are you guys real thieves or were you guys like shoplifters?  I mean what are we talking about here? 

RAINEY:  We‘re a few steps up from shoplifters and quite a few steps down from hard-core criminals.  Most of our crimes had to do with being very young, started in our late teens and spilled over to our very early 20‘s. 

ABRAMS:  Like, what kind of stuff?  Were you convicted?  Did you plead guilty? 

RAINEY:  Yes, a few convictions of some fun crimes, car theft, burglaries, and things like that.  Nothing that was so serious that it didn‘t enable me to get into the Coast Guard years afterwards and nothing too shocking. 

ABRAMS:  Matt, did you guys work together on this back then? 

JOHNSTON:  No, sir, we met each other for the first time in working at this job.  But actually as it works out, he‘s a great guy and I really like spending time with him.  He‘s a fantastic professional to work with.  I really enjoy Jon‘s company a lot.

ABRAMS:  Now, was this your guys‘ idea or did they come to you and they said, what, did they go through criminal records and say we got to find a couple of really good-looking former thieves? 

UNIDENTIFIED MALE:  No, actually they were advertising for former thieves and...

ABRAMS:  Really?

UNIDENTIFIED MALE:  Yes, there was at least almost 1,000 people who applied for it.  And we were just the fortunate ones who get to help people out by using our old expertise and helping them keep their home safer. 

ABRAMS:  I would have been nervous that it was one of those things where they send you something in the mail and they say oh come collect your...


ABRAMS:  ... free tickets to the game and they get all of the people their outstanding warrants out there for them...


ABRAMS:  ... and they get them to show up and then they arrest them. 

RAINEY:  Believe us Dan, we still—we‘re still wondering if this is a big hoax on us. 

JOHNSTON:  I think it might be the biggest punt ever. 

ABRAMS:  Yes.  Yes.  Yes.  Exactly.  All right.  When does this show air?

RAINEY:  It airs...

JOHNSTON:  Tonight...

RAINEY:  ... tonight at 10:00 p.m. on Discovery channel. 

JOHNSTON:  Wednesday‘s at 10:00. 

ABRAMS:  Gentlemen good luck to you. 

JOHNSTON:  Thank you Dan.

ABRAMS:  Thanks for coming on the program.

RAINEY:  Thanks Dan.

ABRAMS:  “It Takes A Thief” airs, as you heard, on the Discovery channel. 

If you ever wondered what judges wear or do under their robes?  Wait until you hear what this judge is accused of doing.  You may wish we never asked. 


ABRAMS:  Coming up, some bad news today for America‘s sue-happy trial lawyers.  It‘s my “Closing Argument”.


ABRAMS:  My “Closing Argument”—some bad news today for some of America‘s sue-happy trial lawyers and it relates to some of the massive class action suits filed over asbestos and silica.  Get this—it seems nearly 60 percent of plaintiffs who filed suit in a Texas case claiming they were injured by the toxic material silica have already collected money, claiming they were injured by the toxic material asbestos. 

So these people were likely compensated for damage to their lungs from asbestos, and then what?  Suddenly realized that well, actually, I‘ll bet it came from silica and so I should probably file, you know, another claim.  That‘s generally called double dipping.  This new information came to light when the defense lawyers in the Texas case got a list of the plaintiffs in a class action case over silica. 

Lo and behold when they ran the names, 5,174 of the 8,629 had already filed court claims blaming asbestos for their injuries.  Sure, both silica and asbestos can cause potentially fatal disease and the legitimate victims should be compensated, but this is just another example of how broken our legal system really is. 

President Bush is right to try and fix it.  The plaintiff lawyers in the silica case must have known their clients had already collected, but they were not above trying to file virtually the same lawsuit all over again and probably eke out a bit more money.  Does this mean the president‘s proposed tort reform plan is perfect?  Absolutely not.  But it‘s another example of why the system needs to be changed now. 

Coming up in 60 seconds, a reason for lawyers to worry the next time they approach the bench in a certain courtroom.  Our “OH PLEAs!” is next. 


ABRAMS:  We‘re back.  I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night we reported that a criminal complaint filed in Germany charged Defense Secretary Donald Rumsfeld with war crimes and it might be the reason he‘s skipping a German hosted conference on security this month.  I said it‘s just a political statement hidden behind the cloak of a legal document and that the complaint should be dismissed. 

Janie Angus writes, “Dan, dismiss the Rumsfeld suit?  Really?  Did you read it or were you merely reacting off the cuff?  You know, Dan, there are some of us out here who are offended and frightened by this administration‘s military actions.”

Yes, Janie, I read the suit.  It is clear.  It will go nowhere.  It seems though that you‘re doing exactly what I suggested.  Hoping this legal document will support your political beliefs.  Offended and frightened are not legal claims. 

Also, last night in my “Closing Argument” I was appalled by a new study that more than one in three high school students said the First Amendment goes too far and half the students think the media should get government permission before publishing stories.

High school senior Andrew Stanfill.  “I don‘t know who was polled for this figure, but I certainly wasn‘t one.  I know for a fact that none of my peers would be stupid enough to say something as ignorant as that.”

From Cincinnati, Terry Armor.  “Many of these people are the same ones who cannot place the Civil War in the proper century or point to their own state on a map.”

But Tom Harmon in Ann Arbor.  “Maybe high school students are finally realizing that a true story is not made up of rumor innuendo and misstatement of fact and that the Constitution is a guarantee of your right to speak, not a license to say whatever you like.”

Right.  Tom, thank you for that primer on what is effectively libel law, but that says nothing about the ignorance associated with the belief that we‘d all be better off if the government got to review media stories before they‘re published. 


“OH PLEAs!”—we go from the esteemed Judge Learnhand (ph) to Oklahoma‘s judge wandering hand.  Just when you thought the naughtiest thing that could come from out of a courtroom was a judge with nothing but his birthday suit on under his robe, here comes Oklahoma senior trial court Judge Donald Thompson who allegedly enjoyed himself a little too much while presiding over two murder trials in civil lawsuit in 2003. 

The pleasure loving judge was forced to resign when his, we‘ll call it self-grooming routine and his curious choice of courtroom equipment aroused others besides himself.  Two court employees and five jurors say they witnessed Judge Thompson using some sort of pump under his bench.  As well as—and I can‘t even say this—the swooshing sound of the device was heard by others in the courtroom, including a court reporter, who said she saw Judge Thompson‘s private parts on several occasions. 

Oklahoma‘s attorney general charged Thompson with three felony counts for indecent exposure.  There are reports of up to 20 separate incidents involving the judge and various sexual devices.  Apparently, Thompson had more hardware under his bench than are appropriate in most courtrooms.  If convicted, Thompson faces up to 10 years.  Thompson has claimed he was simply using a gag enhancement pump given to him by a friend.  Don‘t you hate that?  When you use the pump in a courtroom and people will think you‘re, well, they think you‘re - well—anyway.

That does it for us tonight.  Coming up next, “HARDBALL” with Chris Matthews.  Thanks for watching.  See you tomorrow.





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