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Could Beheading Have Been Prevented?; Interview With Senator Jay Rockefeller; Interview With Benjamin Brafman

Aired May 12, 2004 - 20:00   ET


PAULA ZAHN, CNN ANCHOR: Good evening. Thanks so much for joining us tonight. I'm Paula Zahn.
Tonight, one of the very last e-mails Nicholas Berg sent from Iraq.


ZAHN (voice-over): Could the U.S. government have prevented the capture and beheading of Nicholas Berg?

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: There is no justification for the brutal execution of Nicholas Berg.

ZAHN: Tonight, one of Berg's friends helps piece together what happened.

We had been told the worst was yet to come. Senator Jay Rockefeller joins me to describe what is in the new photographs and videos of Americans abusing Iraqi prisoners.


ZAHN: Also tonight, a Tennessee couple's battle to keep a Chinese baby who has been in their custody for nearly five years. The girl's birth parents now want her back. We're going to tell you what a judge decided just this evening and get one of the families' reactions.

Plus, one of Michael Jackson's former attorneys joins me to survey some of the major criminal trials that are just around the corner.

First, though, some of the headlines you need to know right now.

A new statement from the FBI says before Nicholas Berg was captured and beheaded, the Coalition Provisional Authority offered to give him safe passage out of Iraq. The FBI says he refused. The statement was issued after Berg's family publicly blamed U.S. government actions for contributing to his death. An FBI official tells CNN the agency will investigate Berg's death.

U.S. troops tonight battled insurgents around the Iraqi cities of Karbala and Najaf. However, efforts continue to negotiate a peace between coalition and military forces loyal to Muslim cleric Muqtada al-Sadr.

Convicted sex offender Alfonso Rodriguez Jr. has been charged with kidnapping University of North Dakota student Dru Sjodin, leading to her death. If convicted, he could be sentenced to death.

The abuse of Iraqi prisoners is still "In Focus" tonight. Military officials in Baghdad announced plans to court-martial two military police sergeants facing charges in the Abu Ghraib prison scandal.

Sergeant Javal Davis and Staff Sergeant Ivan "Chip" Frederick each face five counts. Specialist Jeremy Sivits already faces a military trial next week. Also today, U.S. lawmakers got their first look at the still secret pictures of Iraqi prisoners being abused. Afterward, many described the images as appalling, reprehensible and obscene.

Let's go Capitol Hill and congressional correspondent Joe Johns.


JOE JOHNS, CNN CAPITOL HILL CORRESPONDENT (voice-over): Military personnel brought the photo and video file to the Capitol for members of the House and Senate to view in separate rooms.

SEN. BILL FRIST (R-TN), MAJORITY LEADER: Very, very appalling.

UNIDENTIFIED MALE: They were bad. They're all bad.

JOHNS: Members said they saw one man beating his head against a wall repeatedly, videos of hooded men masturbating and Iraqi women forced to bare their breasts. One senator said he saw no evidence of rape and murder.

UNIDENTIFIED MALE: I did not see a video of either a rape of a male prisoner or a female prisoner.

JOHNS: Democrats said the abuse was the work of more than a few rogue soldiers.

UNIDENTIFIED MALE: Now, you can't tell me that all of this was going on with seven or eight Army privates. And so the question is, where did that failure of the command-and-control occur?

JOHNS: Senior Republicans warned against making the pictures public.

SEN. JOHN WARNER (R), VIRGINIA: Err on the side of caution. I think at this time it would not be wise to publish them.

JOHNS: Chairman Warner said that would endanger criminal cases and violate the Federal Privacy Act. House Democratic Leader Nancy Pelosi agreed, citing the Geneva Convention's ban against publicly humiliating prisoners of war.

REP. NANCY PELOSI (D-CA), MINORITY LEADER: The rights of these prisoners have to be protected.

JOHNS: And many lawmakers said the beheading of an American hostage put the photos into a different perspective.

REP. TOM DELAY (R-TX), MAJORITY LEADER: We should not forget that our enemies are incredibly more evil than what is depicted in these pictures.

JOHNS (on camera): Congressional aides estimated that more than half the members of the Senate saw the pictures. The crowd at the viewing in the House was described as standing room only. But some members of Congress expressed no interest at all in seeing the pictures, describing them as more of what has already been released.

Joe Johns, CNN, Capitol Hill.


ZAHN: And later on, we'll get to more reaction to the photos from Senate Intelligence Committee member Jay Rockefeller of West Virginia.

Right now, though, we turn to the tragic story of Nicholas Berg. Tonight, his body is on its way back to his hometown of West Chester, Pennsylvania. People there remember him as a smart and very funny but serious guy about helping others less fortunate than himself.

Nader Neshewat was a friend and colleague of Nicholas Berg. He spoke with the Berg family just today. He joins us now from Washington.

Good of you to join us, sir. Welcome.

NADER NESHEWAT, FRIEND OF NICHOLAS BERG: Thank you very much. It is a tragic occasion, but I'm glad to be with you.

ZAHN: Tell us what Nick Berg's family wants you to share with America.

NESHEWAT: Well, I think you don't have to know Nick and you don't have to have seen him before.

This has been a very tragic and sad occasion, an action that is not done by human beings. It is a barbaric action. And one of the reasons I'm here is to tell the rest of the U.S. of A. and the world that the Middle East is not all like that. This is only a few that makes it bad for the rest, just like the prison scandal.

ZAHN: I know that you had the opportunity to talk with Nick Berg's mother today. What are you comfortable sharing with us about that conversation?

NESHEWAT: Well, she reminded me that I was the guy from Jordan who told him not to go, discouraged him from going. And honestly that left my mind, but I did. We met on the 13th of March at the Crystal Mall here, the Crystal City Mall, for a few minutes. And we had coffee together. He showed me all his pictures that he brought back from Iraq. And I told him that, look, Nick, you got the data, you got the information that you need to get a contract. Why don't you just pursue it from here? Now things are not looking good.

And he says, well, look, I love the country. I want to help them. Look how -- what they did to the country. Look at the looters, what they did. They're breaking the cable from the top of it and they just sell it to make a few dollars a few dinars, Iraqi dinars.

So he was very energetic, motivated. He wants to help the people of Iraq. He wanted to restore all the AM and FM antennas that has been broken down and coming down if it is not being fixed. And he had some contacts. For a 26-year-old man, he had a lot of connections. He went around by himself on his own in a country that nobody dares to do that.

ZAHN: He sounds like he was an incredibly unselfish human being.

Take us back in time a little bit to April 9, which was the day that Nick called his family from Iraq saying that he was trying to find safe passage out of the country. That happened to be the same day that you got an e-mail from him, which was the last contact anybody had with him. I understand you wanted to share that with our audience tonight. And feel free to read it if you would like to.

NESHEWAT: Nick did not mention anything about being held in prison for any time.

But what he did say that I would not encourage you to come to Iraq in the near future. Things are not good. Doesn't look good. And the roads are closed to Jordan. He loved Jordan. And he wanted -- he used the road between Baghdad and Amman very repeatedly. And he loved to travel in escort bus and jet bus. And he loved the Jordan for another reason. He saw so many minarets there in Jordan.

And he, being of a Jewish descent, he loved that. He wanted -- the first time he goes to the Middle East, it was around Christmas on his first trip, and when he sent me an e-mail that time, on 25 December, and he was celebrating Christmas and he's talking to me from Jordan where Christ was born.

ZAHN: Do you want to read part of the e-mail tonight?

NESHEWAT: Well, you have it in front of you. And if you could read it, I would appreciate that.

ZAHN: OK, I'm going to try to grab a copy of that.

But you mentioned something that I think has created a bit of a controversy among people watching the story. You mentioned that he is of Jewish descent. Are you of the belief that Nicholas Berg was targeted because he was Jewish?

NESHEWAT: You know, if I was -- that's the first -- the first thought I had in my mind.

But those killers or murderers, they did not mention that. And I thought they would take advantage of that and say it to -- to say, we got an American and a Jew at the same time. And because that -- they are, you know, very hostile towards Israel and the United States because of the occupation in Iraq. And they consider Israel's occupation in Palestine on the same level.

I did not see that. But I know that he was arrested by the Iraqi police and that could be -- that could be because of his Jewish nationality -- religion.


ZAHN: Nader, how bitter are you about what happened to your good friend?

NESHEWAT: Well, I am very sad. And I couldn't sleep last night. I don't know if they will be caught in the future. I hope they will. But, you know, this is a bad time for everybody.

And I just -- my heart bleeds. I feel the pain of his parents. I have a 26-year-old daughter and she'll be 26 on 1 June. And if I lost her, I don't know what I'll do.

ZAHN: Well, we know how difficult it was for you to share your memories of Nicholas with us tonight.


NESHEWAT: Yes, the e-mail on 9 April, by the way, he sent it to me and he's asking me to provide him with input on how is things here, how is the weather, and when am I coming to Iraq, and even he telling me how much is the Iraqi dinar value, because I was asking him to bring some back so I can give it to friends and -- or keep it, you know, until it goes good in value.

But, you know, his e-mail was so -- so sincere and warm.


NESHEWAT: I didn't realize this is the last e-mail he is sending out. I didn't.

ZAHN: That is so sad.

NESHEWAT: And until I got an e-mail from his parents sending it to all his friends. Michael and Suzanne send it to us, asking us for contact -- for -- if we know anything about Nick.

And I went -- and the same day, I sent e-mails to all my friends in Iraq and Baghdad, who I had commended him to them and to ask them if they knew or heard of Nick. And nothing came back from them.

(CROSSTALK) ZAHN: Well, we are sorry that you have to join us under such sad circumstances. Nader Neshewat, thank you for sharing some of those memories with us tonight.

NESHEWAT: You're welcome, Paula.

ZAHN: We appreciate it.

Coming up, what do Iraqis have to say about the murder of Nicholas Berg? We're going to go to the streets of Baghdad for reaction that is emotional and sometimes shocking.

Also ahead, with the president having such a tough time, why isn't the Kerry campaign gaining in the polls?

And it is a summer bonanza for celebrity trials. We're going to get an expert view of what to expect in these high-profile cases from a former member of Michael Jackson's defense team.


ZAHN: And we're back.

There are two ways you can get a picture of where the presidential race is right now, either read the polls or check out the jokes on the late night talk shows.


DAVID LETTERMAN, HOST: The gas prices are up. The stock market is down. Iraq is a mess. And John Kerry is saying to himself, how am I going to beat this guy?



ZAHN: While the jokes might be more fun, the polls pretty much tell the same story. Despite all of President Bush's troubles, the race for the White House is still neck and neck.

Contributor and "TIME" magazine columnist Joe Klein joins us from Little Rock, Arkansas, where John Kerry is campaigning tonight.

Joe, good to see you again.


JOE KLEIN, CNN CONTRIBUTOR: Great to be back in Little Rock.

ZAHN: I bet. You spent a lot of time there over the years.

KLEIN: I sure did.

ZAHN: Now, I know you're not a reporter who puts a whole lot of stock in these polls, particularly at this stage of the campaign. But come on. Bush's approval rating is at an all-time low and none of these polls seem to show John Kerry gaining any traction. Why?

KLEIN: Well, there is a Pew poll today -- and the Pew poll, I have to say to you, is one of the best constructed of these polls -- that has John Kerry with a five-point lead. That isn't very much. That is still within the margin of error.

But I think that in part John Kerry has been a missing man these last -- the last months because the news has been so overwhelming from Iraq and that it is difficult for him to cut through. So what you're seeing is people making some kind of a judgment about the president and not making a judgment yet about John Kerry. I would also say, though, that he hasn't really hit his stride yet, hasn't really hit his message yet.

ZAHN: A lot of people are saying that. You had one Democratic columnist saying in "USA Today" that the Democrats are definitely panicking. In that same article, you had the head of Arizona's Democratic Party basically saying that the Kerry campaign is kind of -- doesn't have his act together. Is that a fair characterization?

KLEIN: Well, I think both sides are probably panicking at this point.

And it is in large part because I don't think that the polls can accurately reflect where the American people are. These are such complicated issues. And the images are so dramatic that I think it is really hard to quantify them, Paula. And so I think people are having trouble assimilating them. They don't want to be too negative about the president because we're at war. And yet they're upset.

I think that, as this goes along, it is going to shake out. And the other important thing to remember is that this campaign has barely begun yet. And it may break very, very late. It may not start until after the World Series.

ZAHN: Let's see about that, Joe.

But, in the meantime, let's take a look at what seems to be a pretty widely held perception that Mr. Kerry is wishy-washy. A CNN/"USA Today"/Gallup poll found 57 think Kerry changes his mind on issues for political reasons. And then there is the CBS poll at the bottom of the screen suggesting only 29 percent responded that Kerry actually says what he believes.

How difficult is it to change those perceptions?

KLEIN: It is not -- it won't be very difficult at all, if he can change those perceptions.

If those perceptions are true perceptions, then he's going to have problems. But, remember, he has just had something like $60 million in negative advertising dumped on his head over the last two months by George W. Bush. He stuck his foot his mouth several times, saying that he voted for the $87 billion for Iraq and then -- before he voted against it. Boy, it is easy to seem stupid and wishy-washy when you say something like that. But when it comes down to a debate between Kerry and Bush next fall, you'll see the two of them standing next to each other and the American people will be watching. And that's when I think the final impressions will be set.

ZAHN: And I know a lot of people think John Kerry is facile and yet he does at times have difficulty connecting with an audience. Let's listen to what he had to say on the campaign trail last night about the brutal murder of Nicholas Berg.


SEN. JOHN KERRY (D-MA), PRESIDENTIAL CANDIDATE: No matter what happened, no act of terror is ever legitimate under any circumstances anywhere at any time. And I think it will harden the resolve of a lot of Americans to make certain that the terrorists won't get away with it, even as we move to address obvious problems that have existed in Iraq.


ZAHN: Did you get that message?

KLEIN: Well, he uses about six words where one will do in most cases. And that is something he's been working on from the beginning. But it really is difficult in a situation like this.

You know, my guess is that when -- that most Americans would like to see their leaders express some kind of outrage. He didn't do that. He has difficulty doing that.

ZAHN: Joe Klein, thank you for the update.

Have fun in Little Rock. How long are going to you stay there, my man?

KLEIN: Just until tomorrow morning. Then we're out of here.

ZAHN: All right, see you back in New York.


ZAHN: From politics in America to the streets of Baghdad, we're going to hear what Iraqis are saying about the videotaped murder of an American. And find out how anger over the photos of prisoner abuse has influenced their reaction.

And then the little girl at the center of a very long custody battle. Her foster parents want to keep her. But her birth parents want her back. Did a judge make the right decision today? We'll ask one of the couples involved.


ZAHN: Welcome back. As we told you earlier, the FBI released a statement today saying it contacted Nicholas Berg and offered him safe passage out of Iraq, but Berg reportedly refused it. He was later executed by Islamic militants.

Senior Pentagon correspondent Jamie McIntyre joins us now with more details.

Good evening, Jamie.


Despite the concerns from the Berg family, the U.S. government insists it did nothing wrong in handling the case. According to the version of events put forward by the FBI, they say, back on March 25, they were alerted that Nicholas Berg had been arrested by Iraqi police in the town of Mosul. And they went and interviewed him, they say, in a police station in Mosul to determine why he was there.

He told them why he was in Iraq, that he had entered through Jordan, that he was there to try to establish business contacts. And the FBI ran a check on his background. After determining that there was nothing negative there, they relayed the information to the Iraqi police and U.S. coalition provisional authorities that there was no reason to hold him. And here is the key part of the statement released by the FBI today.

They say: "During the interviews with Mr. Berg, FBI agents and CPA officials emphasized to him the dangerous environment that exists in Iraq and encouraged him to accept the CPA's offer to facilitate safe passage out of Iraq." Mr. Berg refused these offers, according to the statement. Now, the U.S. also says they coordinated with the Iraqi police and the CPA to coordinate his release and offered to contact his family and tell them about his status.

They say he also refused those offers. And, of course, after that, he disappeared and ended up being executed by Islamic militants -- Paula.

ZAHN: Jamie McIntyre, thanks for trying to clear up the confusion.

Just a reminder once again that Nick Berg's family is blaming the U.S. government for his death, saying that they kept him in custody in Iraq while hostilities grew.

The murder of Nicholas Berg is not getting as much attention in the Arab news media as it is here in the U.S. And in light of the anger caused by the Iraqi prisoner abuse scandal, some Arab commentators feel it would be unwise to condemn the killing of an American. But not everyone feels that way.

Our own Ben Wedeman is in Baghdad and he has this reaction.

(BEGIN VIDEOTAPE) BEN WEDEMAN, CNN CORRESPONDENT (voice-over): The barrage of jarring images has bombarded Iraq of late. Fighting and destruction in Najaf and Fallujah, abuse of Iraqi prisoners by American soldiers and now the brutal videotaped beheading of an American civilian.

The head of Iraq's governing council denounced Nicholas Berg's killing.

ABDEL ZAHRA OSMAN MOHAMMAD, PRESIDENT, IRAQI GOVERNING COUNCIL (through translator): We condemn -- the Iraqi people condemns this crime, Islam condemns this crime.

WEDEMAN: We heard the same thing outside.

"Slaughtering a human being is a very horrifying thing, as an Iraqi it was hard to watch such a brutal act," says Professor Ahmad Hedhi (ph).

"Somehow they are punishing the Americans for what they did to the prisoners but two wrongs don't make a right," says Niz Lane (ph), a student.

Reaction to Berg's killing is tinged by intense anger over prisoner abuse. A far more emotional issue for Iraqis than the brutal murder of an American civilian.

"After they abused and dishonored the prisoners they deserved this," says Salah (ph).

And On the street, skepticism about whether the man attributed with the murder even exists.

"I don't think there's anyone named Abu Musab al Zarqawi," says Namen (ph). "It's a name the Americans invented upon which to hang all the mistakes of the resistance.":

Some blame it all on the coalition's failure to control Iraq's poorest border.

UNIDENTIFIED FEMALE: You know that Iraq now is open state, and anyone can enter to Iraq without any barriers.

WEDEMAN (on camera): Recent events have left many Iraqis depressed and despairing. Summing it all up an old Iraqi friend told me in his words that people feel lost, this country has no future, we see only darkness ahead.

Ben Wedeman, CNN, Baghdad.


ZAHN: More images of prison abuse and new concerns about their impact. We're going to be talking with one senator who has seen the newest pictures and finds out -- or we will find out if he thinks you should see them.

And Michael Jackson is just one of the big names facing trial this summer. A look at the summer's mega-trials coming up.

And the rush to remove some of the carbs from our favorite comfort foods, that's tomorrow.


ZAHN: And we're back at bottom of the hour now. Here's what you need to know. Palestinian medical sources tell CNN seven Palestinians were killed tonight when an Israeli helicopter fired a missile into a refugee camp in Gaza. Israeli forces there had been battling for the remains of soldiers killed yesterday but withdrew today as part of a deal to get them back. Palestinian militants say the remains have now been handed over.

In an unusual move today, The Gap revealed that many of its overseas employees are working in shoddy conditions. The employees make the retailer's clothing line. The Gap is vowing to improve conditions at the so-called sweatshops.

The co-chairmen of Miramax have reached a deal to personally buy back Michael Moore's controversial documentary "Fahrenheit 9/11" from Miramax's parent company, Disney. Disney had blocked release of the film last week. It criticizes President Bush's handling of 9/11.

Back to our top story of the night, the tragic story of Nicholas Berg. His body is on its way back home to his hometown in Pennsylvania. He is the American whose execution was videotaped by his Iraqi captors. We get an update now on what members of the Berg family are doing. Maria Hinojosa is outside their home in West Chester, Pennsylvania.

What is the scene there tonight, Maria?

MARIA HINOJOSA, CNN CORRESPONDENT: Paula, really, a real sense of dread, sadness, mourning, of course, the information now that the body has arrived Dover Air Force base and could be making its way to a funeral home not far from here kind of helping everybody settle in with the idea of how horrible this reality is for them.

The family came out and told us about memorial plans for Friday, but the family really had to deal with the horrible reality of death, meeting today with the funeral director. This was the only time that the father came out of the house, to usher in the funeral director to make these plans for the funeral and memorial that's going to happen on Friday. But a lot of just -- people kind of letting -- really feeling that it's settling in here, that this young man is coming home, but in a way that they, of course, never imagined he would be. So a real sadness and just heaviness in this community.

ZAHN: And a lot of anger to go around. Besides having to face this memorial service, the family had recently filed a lawsuit against the U.S. government for illegally detaining their son, the U.S. government today denying that. Can you help set the record straight tonight?

HINOJOSA: Well, Paula, at this point, what we know is that this morning, coalition forces, through a spokesman today in Iraq, denied that Nick Berg was ever in U.S. custody. This was quite upsetting to the family. At one point, the son came out holding a newspaper article where that was also printed. He said this is -- this was not right, that they had information, e-mails from Nick Berg, once he had been released after April 6, where he was saying that he had been detained in U.S. custody.

Now, this is a family, as you had said, that went and sued the Department of Defense, sued Donald Rumsfeld, saying that their son was being detained without due process. So for the U.S. government, in their eyes, to suddenly say he was at no time in their custody or in their jurisdiction, for this family appears to be creating quite a bit of anger, as well. The father continued to speak out, raising the question that if this young man had not been detained during this period of time, incommunicado for 13 days, perhaps Nick Berg would have been able to make it out on the March 30 flight that he had planned on. But because he was detained, his father says, he missed his flight, and of course, there was that tragic ending -- Paula.

ZAHN: Maria Hinojosa. And of course, the story gets more convoluted because the FBI confirming today that its officers offered safe passage to Mr. Berg to get out of the country.

Let's turn to John King now, our senior White House correspondent, for more on the kind of reaction this has sparked in Washington, and in particular, from the president. Good evening, John.

JOHN KING, CNN CORRESPONDENT: Good evening to you, Paula. Condemnation of the execution from the president today, and also the administration, as you were discussing with Maria, scrambling to answer the questions and the anger of the Berg family. Now, President Bush commented on this this morning as he left the White House -- early this afternoon, I should say -- the president saying that this was the unjustifiable murder of an innocent civilian. He said Nick Berg was in Iraq to try to help that country to become democratic and become free. And the president, as he has in the past when he has faced a setback in Iraq, also said he will not bow to what he considers to be the intention of the terrorists.


GEORGE WALKER BUSH, PRESIDENT OF THE UNITED STATES: Their intention is to shake our will. Their intention is to shake our confidence. Yet by their actions, they remind us of how desperately parts of the world need free societies and peaceful societies. And we will complete our mission. We will complete our task.


KING: Now, as the White House promised, an aggressive investigation, and tonight, we've learned the FBI will take the lead in that investigation. Again, it is also answering the concerns of the family. The White House says that Mr. Berg was in the custody of Iraqi police, that he was taken into custody because of questions about his identification papers. Three times while in custody, the administration confirms, he was interviewed by the FBI. Ultimately, they determined him not to be a risk and they let him go. But Paula, the administration stresses this point. It says the FBI and the State Department made clear to Mr. Berg that he was at risk in Iraq, that he was alone without any security apparatus, that they viewed it as quite a dangerous place and they not only recommended that he leave but offered him a flight out of Iraq. They say Mr. Berg refused -- Paula.

ZAHN: John King, thanks.

Members of Congress today saw what the public has not seen so far, more photographs of the abuse of Iraqi prisoners. Some say the pictures were disgusting and worse than what is already out there. Should you be allowed to see them?

Well, joining us now from Washington is one senator who saw these new images. Jay Rockefeller is a Democrat from West Virginia. Always good to see you, Senator. Welcome.


ZAHN: First of all, can you tell us what you saw today?

ROCKEFELLER: No. I can't, simply because I -- it's -- if other senators talk about it, that's their business, but it was in a secret -- in a secret intelligence room. And what we see in there, we cannot talk about. But I can say that what people have seen is bad enough.

ZAHN: I will share with our audience now some of the comments of your colleagues, some of them saying that there were disturbing images that included military dogs snarling at cowering prisoners, Iraqi women commanded to expose their breasts, photos of sex acts, including forced homosexual sex. Is that an accurate depiction of some of what you saw?

ROCKEFELLER: Paula, I just -- I have to be straight with you. I'm vice chairman of the Intelligence Committee, and we have a pretty hard rule that what we do in Intelligence Committee -- I've spent the entire day in Intelligence. And what we see in a secure environment only for intelligence purposes is not something that we talk about.

ZAHN: Let's move on, then, to the issue of whether you ultimately think the American public should see them. This is what Senator John Warner, who is the chair of the Armed Services Committee, had to say about that ongoing debate.


SEN. JOHN WARNER (R-VA), ARMED SERVICES COMMITTEE CHAIRMAN: My view, and it's solely my view, these pictures at this time by the executive branch should not be released into the public domain, and they await release until the course of the trials.


ZAHN: What's your view, Senator? ROCKEFELLER: My view is that the people of America should be able to see these photographs. Whether they should see all the photographs or not, I'll leave that up to others. But they've seen a number of photographs. I think photographs fundamentally are -- see, I think what's happening here, Paula, is that we're not just looking at the Iraq and the war on terrorism, but we're also looking at America and we're looking at the chain of command. We're not just looking at the four or five Guard and reserve people who were involved in some of these photographs, but we're also looking at, How do we practice taking care of prisoners? I mean, we've been doing that for a hundred years. And I'm interested in how far up the chain this reaches.

ZAHN: Finally tonight, there are reports by some of your colleagues that these pictures that you were exposed to today are so incendiary that all it will do is increase calls for the resignation of Donald Rumsfeld. Do you see it that way?

ROCKEFELLER: I don't -- you see, I have a very different view about that. The -- I think the question of whether Donald Rumsfeld should resign or not resign takes us off the track that we're meant to be on because then everybody rushes over to take sides. "I think he should," "I think he shouldn't." And I think what we need to be focused on is, How did this come to be?

I mean, we -- those are tough people. They've been fighting each other and other countries and wars for years. And we expected there were going to be a lot of prisoners. There was a lot of intelligence that said there were going to be a lot of prisoners, and we weren't prepared to handle them. Why were we not? And that is, to me, the question that's at hand, not whether -- and there'll come a time when, you know, you'll have a Rumsfeld decision, yes or no and all the rest of that. But we're not there yet. We've got to keep our eyes on the track that tracks policy.

ZAHN: All right, Senator Jay Rockefeller, appreciate your perspective tonight. Thanks for joining us.

ROCKEFELLER: Thank you, Paula.

ZAHN: And coming up next, from the political to the very personal battle over a little girl. They say they never meant to give up their baby for adoption, but her foster parents believe life in China wouldn't be as good for her. You're going to meet the couple who actually won custody. And the Kobe Bryant trial will soon be making headlines, along with some other high-profile trials. A legal look ahead.


ZAHN: A judge ruled today in a heart-wrenching custody case focusing on this beautiful little girl. Anna May (ph) He was born five years ago to Jack (ph) and Casey He, a Chinese couple living in the United States. But they were having money and some legal problems, so they asked an American couple to take their newborn for three months so they could get back on their feet. But three months passed, and the Hes still were not able to take back Anna May from foster parents Jerry and Louise Baker, seen here. So the two couples signed an agreement allowing the Bakers to keep Anna May. The Bakers said the deal was for permanent custody. The Hes said that simply wasn't true. The case landed in court, and after nearly five years, there is a decision. It is the Bakers that will get to keep Anna May.

And they join us tonight from Memphis, Tennessee, both Jerry and Louise Baker. Thank you very much for being with us tonight. I know this has been an arduous, long battle, with charges of liars flying from both camps. What does it mean to have this fight over? Louise?

LOUISE BAKER, ADOPTIVE MOTHER: We're just relieved. It's been a long time, so we're just very happy that it's come to this.

ZAHN: Jerry, what does it mean to you?

JERRY BAKER, ADOPTIVE FATHER: Well, like she said, it's gone on for so long and there's been so many things said. It's a relief to be able to put this behind us. It's a relief to know that this little girl is going to be allowed to wake up in the same bed that she's woke up in since she's 3 weeks old in the morning.

ZAHN: Louise, so many hurtful charges flew both ways -- the biological parents accusing you of lying about the agreement they signed. And you, in turn, saying that's not true, you signed a legal document and Anna May should have been yours. What has been the most hurtful part of this whole process?

LOUISE BAKER: I would say the one-sided media on this has been the most hurtful, all the lies that have been told on us. You just kind of grow numb to it after a while, but...

ZAHN: And I know you feel very strongly that Anna May was a pawn in all of this.


ZAHN: Because there was an accusation against her birth parents that they were using her to try to stretch out their process of trying to become U.S. citizens. You strongly believe that to be the case, don't you.

LOUISE BAKER: Yes, we do.

ZAHN: And Jerry, why don't you think many people believe that along the way?

JERRY BAKER: Why don't I think that many people believe -- I don't understand the question.

ZAHN: Well, I know that Louise said that she thought some of the coverage was distorted, and that part of the story really did get less coverage. JERRY BAKER: Right. The -- well, for the longest time, you only had one side talking, so you were only getting one side of the story. That wasn't as a result of why -- I mean, that the Bakers were too good to talk, it was because the court had ordered the Bakers not to talk.

And you know, we have to remember that this child has been a ward of the court. The court decides where she's to remain. And we were afraid to go against the court's orders and the court's wishes and start talking and trying to give our side of the story. So we've kept quiet until fairly recently.

ZAHN: Louise, does Anna May have any idea about this battle that has raged on?

LOUISE BAKER: No, she has no idea of what's going on. She knows that we've been in court. She knows we go to talk to the judge and to Mr. Parish (ph), but that's about the extent of what she knows.

ZAHN: I'm going to share with our audience tonight something that Anna May's biological mother had to say shortly after this decision was made. Let's all listen together.


CASEY HE, BIRTH MOTHER (through translator): I was in pain. She was my first child. The feeling of being a mother and not being able to take care of your child was painful.


ZAHN: And I should have said that that was done actually before this decision was made. Obviously, Mrs. He visibly shaken. Is it hard for the two of you to watch that, even though you feel the court made the right decision here?

JERRY BAKER: Yes, it is. This is a very personal experience for not just the Bakers or the Hes, for a lot of people. And it's been a very difficult (UNINTELLIGIBLE). There's so many different sides and angles.

You know, the thing that I would like to say is this is not about the Bakers or the Hes. It was about what's in this child's best interest. And this judge heard testimony hour after hour, and so decided that it -- in her best interest, it was to remain in the home she's been in her entire life.

ZAHN: Well, I know this is a night of very mixed emotions for the two of you. And we wish you the best of luck as you try to forge yet a new part of your chapter of your life together. Mr. and Mrs. Baker, thank you for your time.

JERRY BAKER: Thank you.

LOUISE BAKER: Thank you. ZAHN: From Martha Stewart's sentencing to the trial of Scott Peterson, there is a long list of well-known names and faces due in court. Defense attorney Ben Brafman joins us to look at some of the big trials coming up this summer.


ZAHN: We are heading into the summer of the gavel. Jury selection is under way in the Scott Peterson trial, and NBA star Kobe Bryant was arraigned yesterday. Sources tell CNN his trial will begin sometime in August. Meanwhile, Michael Jackson has another hearing this month, and Martha Stewart will be sentenced next month.

Joining us now to sort through all these high-profile cases is Benjamin Brafman, a former Jackson attorney and an ABC News consultant. And it's always good to see you.

BENJAMIN BRAFMAN, ATTORNEY: It's good to see you. Thank you.

ZAHN: Let's start with the Kobe Bryant case. The defense is going to try to challenge Colorado's rape shield law and allow for the alleged victim's sexual history before and after the attack to become public. Will the team succeed?

BRAFMAN: I think they will. And I think if they don't, the judge will be making a mistake. That's a unique case. I think the rape shield law was not designed for the Kobe Bryant set of facts. This is not a case where we're trying to introduce the background of the victim just to sully the victim, to suggest that because she may be promiscuous, she should be raped. This is a case where the victim, if she is a victim, has put into this case certain facts which suggest that there's something wrong with this story. And I think a lawyer should be able to explore her activity before and immediately after the incident because there is an issue of whether this was or was not consensual and there is an issue as to whether there were other sexual partners during a very critical period.

ZAHN: On to the Scott Peterson trial. Your former co-counsel in the Michael Jackson case, Mark Geragos, was denied a motion to get a change of venue, having a great deal of difficulty seating a jury. What is your prediction with what's going to happen with that case?

BRAFMAN: I think Mark Geragos is a terrific lawyer fighting a terrific difficulty in that case. I think the vile nature of the crime that's alleged makes Scott Peterson, unfortunately, so vilified before people even begin to hear the evidence that there's a real question in my mind as to whether or not he can get a fair trial. And with respect to some of the questions and some of the answers being given by prospective jurors, it's kind of scary because people have written this guy off before they've heard a single piece of evidence. So I think it's a tough road.

ZAHN: Let's talk about Martha Stewart for a moment. There is a report suggesting that her team will ask the judge for leniency when it comes to sentencing next month. They are going to claim that if you give her a long prison sentence, it will affect the employment status of a lot of people at her company. Will that fly with the judge?

BRAFMAN: Well, there is precedent under the sentencing guidelines for a judge to factor into the equation the impact a prison sentence will have on other people, people who are employed by the person who's going to jail. The difficulty with the argument in her case is there is not a long sentence in the picture one way or the other. The guidelines suggest a prison sentence but a rather short prison sentence. There's also the concern that the lawyers need to deal with that Martha Stewart is such a big company that while she is critical and essential, it doesn't appear that that company's going to disappear if she goes to jail for 10 months.

The real sad reality is that someone like Martha Stewart may be going to jail for not an underlying crime but for, in effect, trying to cover up something which turns out not to have been a crime to begin with.

ZAHN: You're not saying she shouldn't be punished for that?

BRAFMAN: I'm not suggesting that she might not deserve punishment, but if you're asking me, as a defense lawyer who deals with the guidelines, do I think someone like Martha Stewart should be warehoused for 10 months? I don't think it's a smart sentence. I think she should be used productively. I think someone with her clout, with her power, with her resources can do a terrific amount of good for the general public and maybe make a better example out of her by causing her to build a hospital or help cure some terrible illness.

ZAHN: On to your least favorite subject now, the subject of Michael Jackson -- brought into that case with huge fanfare. And you and Mark Geragos left. What happened?

BRAFMAN: I'm still under the gag order, and I still have an attorney-client privilege. And all I can tell you is that the parting was very civilized. I think everyone in the process recognized that if Mark's going to be involved in Peterson and I'm really focused on the East Coast, if they want 24/7 on the ground in LA, that there had to be a change. I mean, I leave with no ill will. I wish Michael Jackson well. I think everyone's handled this with a fair degree of class, and I want to leave it that way.

ZAHN: Oh, you're not helping me here! I can't tell if you wanted out or he wanted you out. You can't even give me a hint?

BRAFMAN: I think there came a time when it became apparent that that case is going to require 24/7 on the ground in LA. I have a huge practice in New York. I'm based in New York. And without Mark Geragos and his team of very good lawyers on the case, I didn't think it was going to work. So I think it was a joint decision. And I think, at the end of the day, it's probably all for the best. I'm sorry it didn't work out because having met Michael Jackson, I think he needs my help, and I think I could have helped him.

ZAHN: Boy, you danced around that question like mad!

BRAFMAN: That's part of my job. ZAHN: Are you able to answer this, whether you expect Michael Jackson to be convicted?

BRAFMAN: I'm not allowed to answer that question, and specifically, that is covered by the gag order. We're not supposed to do any predicting on the outcome of the case, and I've chosen not to do that. And you're about the 500 or 600th person to ask me that question. And if I was going to answer it for anyone, I'd certainly put you up there on the top.

ZAHN: Well, how about if we bring you back once the gag order is lifted?

BRAFMAN: When the gag order...

ZAHN: Will you answer some of these questions?

BRAFMAN: When the gag order is lifted, it'll be my pleasure to come back.

ZAHN: Ben, thank you. Appreciate your time tonight.

BRAFMAN: My pleasure.

ZAHN: And we will be right back.


ZAHN: And that wraps it up for all of us here tonight. Thanks so much for being with us. Tomorrow, what some companies are doing to make your favorite foods free of carbs. Yes, sorry we have to go there. Again, thanks for dropping by tonight. "LARRY KING LIVE" is next. Have a great night.


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