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'The Last Word with Lawrence O'Donnell' for Monday, December 2nd, 2013

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December 2, 2013
Guest: Howard Dean, Ezra Klein, E.J. Dionne, Jonathan Capehart, Marcia
Clark and Zerlina Maxwell, Marcia Clark, Michael Cahana, Duncan McAlpine

LAWRENCE O`DONNELL, MSNBC HOST: Another day, another new report on how the
Affordable Care Act is working.


UNIDENTIFIED FEMALE: The White House says is now

UNIDENTIFIED FEMALE: is in stable condition.

UNIDENTIFIED FEMALE: Ninety percent of the time.

UNIDENTIFIED FEMALE: Is that good enough?

UNIDENTIFIED MALE: This is not an end point.

UNIDENTIFIED MALE: The Web site ain`t there yet.

UNIDENTIFIED MALE: But it is good news.

UNIDENTIFIED MALE: Democrats, they are positive about these

steps to make further improvements.

UNIDENTIFIED MALE: And Republicans on the Sunday shows still are not

UNIDENTIFIED MALE: I don`t know how you fix it.

UNIDENTIFIED MALE: The first impression here was terrible.

REP. MIKE ROGERS (R), UTAH: We`ve broken the system to help a few.

UNIDENTIFIED MALE: This thing is going to be an unmitigated
political disaster.

UNIDENTIFIED MALE: This then pivots to the issue of the politics.

ANN COULTER, CONSERVATIVE COMMENTATOR: They have branded the Republican
Party as the anti-Obamacare Party.

UNIDENTIFIED MALE: And while there will be a few winners --

UNIDENTIFIED MALE: There`s going to be millions of losers, too.

UNIDENTIFIED MALE: People want health care.

CHRIS MATTHEWS, MSNBC ANCHOR: The president`s enemies continue to root for
the worst.

UNIDENTIFIED FEMALE: After a year that saw a disastrous government
shutdown --

COULTER: The shutdown was so magnificent it ran beautifully. I`m so proud
of these Republicans.

UNIDENTIFIED MALE: There is a lot more work that needs to be done.


UNIDENTIFIED FEMALE: Tick, tick, tick.

UNIDENTIFIED FEMALE: That`s all the time that is left to come together on
a budget deal.

UNIDENTIFIED FEMALE: How are we going to get that done?

UNIDENTIFIED MALE: This Congress really hasn`t been able to tie its shoe


UNIDENTIFIED MALE: Do you think anything has gotten better there?

ANDREA MITCHELL, MSNBC`S ANDREA REPORT: How does Congress justify what it
has done?

UNIDENTIFIED MALE: Well, I mean, I like gridlock with the stock market.
Obviously gridlock has been pretty good.

UNIDENTIFIED MALE: This Congress really doesn`t have anything to show for

UNIDENTIFIED FEMALE: The rebranding continues.


LAWRENCE O`DONNELL, MSNBC ANCHOR: President Obama used World AIDS Day to
remind people of some of the progress the Affordable Care Act has made.


Care Act, millions of insured Americans will be able to get tested free of
charge. Americans who were uninsured will now be able to have access to
affordable health care coverage and beginning in January no American will
be again denied health insurance because of their HIV status.


O`DONNELL: The Obama administration now claims that it has met the
December 1st deadline that it set for itself to fix the Web site. A status
report released yesterday by the Centers for Medicare and Medicaid services
has said, "While we strive to innovate and improve our outreach and systems
for reaching consumers we believe we have met the goal of having a system
that will work smoothly for the vast majority of users."

The administration says the Web site is now functional 90 percent of the
time, an improvement over 45 percent functionality at the start of last
month. Today the White House said there were more than 750,000 visitors to
the federal Web site before 6:00 p.m. Eastern.

The "New York Times`" Robert Pear reports, "The White House is hoping that
seven million people will obtain insurance through the federal and state
exchanges by the end of March through November 2nd slightly more than
106,000 people have signed up and selected a health plan. About three-
fourths were in states running their own exchanges. Fewer than 27,000
people had selected plans in the federal exchange."

But the Affordable Care Act will have at least one new customer.


JONATHAN MILLER, POLITICO: Has the president signed up for Obamacare or
the Affordable Care?

JAY CARNEY, WHITE HOUSE PRESS SECRETARY: I don`t have an update for you on
that. I know that he will and has said that he will, and the White House
has said that he will but I don`t have an update.

MILLER: Do you know what he is waiting for? Ad when he does do that will
you make it open press?


CARNEY: I`ll get back to you.


O`DONNELL: Joining me now, E.J. Dionne and Ezra Klein, columnists for the
"Washington Post" and MSNBC analyst and former Vermont governor, Howard
Dean, former chairman of the Democratic National Committee.

Governor Dean, what is your assessment? It`s odd when an administration is
doing its own report on how it`s doing on something this controversial.
What is your assessment of where things stand tonight?

HOWARD DEAN, FORMER DNC CHAIRMAN: Well, a month ago -- look, we`re not
going to really know until about March. And I just -- I was on some of the
weekend shows. The handwringing and the carrying on the Republican side,
this is just about politics. What has to happen is the site has to work
more than 90 percent of the time. People have to sign up and they have to
get good insurance.

And actually all three of those things are now happening. Much to the
dismay of the Republicans because they`ve got nothing to say for
themselves. The last -- I`m trying to figure out when the last time I
heard any Republican say anything positive about anything.

O`DONNELL: E.J. Dionne, what is your political assessment of where the
story is now? It seems as if we`ve turned some kind of corner in terms of
the pressure on the White House and the pressure on the administration.
And even that ability to make the claim of it being 90 percent functional
seem to be a major step for them.

E.J. DIONNE, THE WASHINGTON POST: I think we have turned something of a
corner. I think they have a problem right out, you know, even now because
if the launch had gone smoothly then the smaller problems that came up all
along -- all long the way wouldn`t be considered that great. But now every
little glitch is going to be seen as even bigger than it is.

Nonetheless I do think there is a chance to turn the issue to where it
should have been all along, which is, will more people get insurance, and
the answer to that is yes, and we`ll see how many more and what`s the
quality of that insurance. And for most people, it`ll be better. So I
think anybody saying they are sure that this issue is going to play big in
the 2014 elections I just think is making it up. I don`t think we have any
idea how this issue is going play in the 2014 elections.

O`DONNELL: David Plouffe made a kind of big prediction this weekend on
television. Let`s listen to this.


out there. And I think we ought to fast-forward a few months. This month
is a rough period, obviously. But by the end of March, most people think
you could have six, seven, eight million people registered for health care.
So the notion that somehow the Republican message is --

GEORGE STEPHANOPOULOS, ABC NEWS: Only if there is a rapid increase in --

PLOUFFE: Well, but you see the interest out there, George. People want
health care. They`re going to be able to get health care. So if the Web
site is working -- and to your question, you know, we live in a very social
world right now. People will tell their siblings or they`ll talk to their
brothers or sisters. And a friend said I went on, it was pretty easy, I
get health care, I`m happy with the plan.

So this is going to be something that the person to person is going to get
fixed or not. And I think what you`re beginning to see is the interest is
spiking because the interest is out there. People see an easy experience.


O`DONNELL: Ezra Klein, was that an evidence based statement?


EZRA KLEIN, THE WASHINGTON POST: There is some evidence behind it. I
mean, if you look at every past expansion like this one, the few recent
ones was you have Medicare Part D, which is the prescription drug benefit
and L5 or 6. And the Massachusetts reforms by Mitt Romney. Both of them
did have a pattern in the enrollment where there was very weak enrollment
at the beginning, although it`s actually a whole lot easier to roll than
Obamacare. And enrollment actually did spike towards the end. So they`ve
got everybody in towards the end.

Whether that`ll be true for Obamacare is a little bit harder to say. It`s
a different program and it`s different features. But I would expect an
aggressive increase in enrollment as time goes on. And I think one of the
big questions there, the natural spur into the market would normally be the
individual mandate.

The question is whether the program is working well enough and the Obama
administration and Democrats feels politically safe enough to actually
publicize the individual mandate come March when it`ll actually hit because
if they don`t publicize it, it won`t be able to play its role of actually
pushing people to buy insurance before the deadline.

O`DONNELL: Howard Dean, the president enrolling in the -- through the
Affordable Care Act is a largely symbolic event since he has doctors in
residence at all times and never ever actually has to go anywhere and show
an insurance card to anyone. But what do you think the political
significance of it is that the president will be enrolling in the
Affordable Care Act?

DEAN: I think it`s a good idea, actually it`s one of the few things I
agree with the Republicans. I think everybody on Capitol Hill should have
been enrolled in Obamacare.

It`s a good way to get insurance. It -- this is not a perfect bill by any
stretch of the imagination. We have a lot of ways to go here. One of the
things we haven`t talked about is Medicaid. The Republican governors just
scrambling to now sign up when they refused to in the beginning for
political reasons because it`s such a huge hit to their budget not to do

Michigan, for example, the legislative governor, the Republican governor
wanted to do it. He got it done. The Michigan legislature has delayed it
by three months. It`s going to cost them $70 million out of the Michigan
budget because they haven`t done it. And we haven`t even talked about that
yet. So seven or eight million people making insurance through Obamacare
but another seven or eight or more million people are going to get
insurance through Medicaid expansion and that`s important.

O`DONNELL: E.J. Dionne, the Republicans do seem to be standing down on the
repeal Obamacare or not fund the government. They are now publicly making
it very clear there is no chance of another government shutdown over this

DIONNE: Well, if you come close to committing political suicide once, most
parties usually learn something from that experience. And I think they
know perfectly well that if they tried to shut down the government over
Obamacare, they would take all of the attention away from the problems of
Obamacare and put it on them. And put it on their effort to shut down the

That was very unpopular. They fell way behind in all of the polls and so
I`d be stunned. I`m never fully surprised by anything that happens on the
hill but I`d really be stunned if they tried to go through that again.
They just -- it just wouldn`t help them.

O`DONNELL: Ezra Klein, there is a big problem in the numbers that we`re
hearing reported, which is there is no definition of what it means to be
enrolled. Each state is reporting the numbers the way they see it. There
is no uniform definition on what these numbers actually mean. Has someone
paid a premium? Do they actually have an actual, you know, ID number from
an insurance company?

A lot of what`s being called enrollment, there is simply people going
through the application process to a certain point but not actually
effectuating it as some of the reports say. How are we -- when will we
know some sense of what real numbers are?

KLEIN: We probably won`t know numbers, really good numbers. I mean, as
you mentioned, the Obama administration itself came out with a very odd
definition of enrollment where if you simply put an insurance package into
your shopping cart you count as enrolled. By that standard I own a lot of
stuff on my Amazon --


I currently have sitting on my counter.


KLEIN: You know, but one thing I think is true here is that when it`s
going to fundamentally matter with Obamacare, and we`ll know it after
January, is the reality of people, are they getting insurance or not
getting insurance.


KLEIN: And by the way, it`s not just about enrollment. It`s about that
enrollment be correctly transmitted to the insurer, it`s about that popping
up on the -- on the doctor`s computer system. And so when that happens
there are going to be no number of reports. They`ll be able to spin a
program that isn`t working. Nor will there be any number of GOP hill press
releases. They`ll be able to spin a program that is working to give
millions of people health care insurance into a failure.

So one thing that I actually found comforting about all of this is that for
now it`s a lot of noise. Ultimately this is moved beyond political
distraction and into a question of whether or not it will effectively help
real people get real insurance. And if it does, then we`re (INAUDIBLE)
will be enormous for the program. And if it doesn`t, then there`s no
messaging the administration can do that will save them.

O`DONNELL: Here is how much the administration feels the numbers are
actually kind of shaky. They are giving advice to people that even if you
think you`ve enrolled you had better call your insurance company to confirm

Let`s listen to what they said on the conference call today.


UNIDENTIFIED FEMALE: Consumers should absolutely call their selected plan,
confirm that they have paid their first month`s premium and that coverage
would be available for them beginning January 1st. We will also make a
concerted effort to reach consumers who selected a plan over the course of
these past several weeks so that they know what their next steps would be
which include paying their first premium and confirming enrolment with
their plans.


O`DONNELL: Howard Dean, they sound a little nervous there.

DEAN: Yes. Look, this is complicated stuff. And I always -- I can`t
resist. You know, I just signed up for Medicare because I turned 65 in
November. Took me 10 minutes. If only we had a public option. Think how
easy this will all be.

O`DONNELL: I`m with you there.



DIONNE: Yes, me, too. You know, I`m not surprised that they are worried
about that. They seem to have fixed the front end of the Web site going in
and this best one, I can tell the problems they`re having. The big
problems they`re still having are in the connection to the insurance
companies. So if they want a lot of bad stories they would have people not
check and discover they were uninsured. So I`m not surprised they`re
taking that precaution.

O`DONNELL: Howard Dean, Ezra Klein, and E.J. Dionne, thank you all for
joining me tonight.

KLEIN: Thank you.

DIONNE: Thank you.

DEAN: Thank you.

O`DONNELL: Coming up, Florida releases Marissa Alexander, the woman
sentenced to 20 years in prison for firing a warning shot. Why a Florida
judge did not allow her to stand her ground. Marcia Clark and Zerlina
Maxwell will join me.

And in the "Rewrite,` the Republican National Committee tweeted that racism
was ended. Now if racism had ended then why were three high school
students arrested for waiting while black? Waiting for their school bus.
That`s coming up.

And a LAST WORD exclusive, a 13-year-old gives his bar mitzvah speech on
what the Torah has actually taught him about marriage equality.


O`DONNELL: Did Republicans just catch Chris Christie trying to help a
Democratic governor get re-elected? Our man Jonathan Capehart is on the
case. He`ll join me next.


O`DONNELL: Chris Christie`s road to the Republican presidential nomination
is already bumpy. According to an exclusive report in the "New York Post"
by Fred Dicket, Christie`s bizarre behavior in refusing to say he`ll
support a possible GOP challenger to Governor Cuomo next year could derail
his chances to become president. State and National GOP insiders have told
"The Post."

Christie already has a problem with many Republicans refusing to forgive
him because of his embrace of President Obama and his socially liberal
policies, setting nationally prominent operative. But this bizarre
behavior in suggesting he won`t help a Republican defeat a Democratic
governor, a Cuomo no less, could finish off his chances of becoming his
party`s nominee for president in 2016.

The "New York Post" reported last week that Governor Christie was ready to
back West Chester County executive Rob Astorino for governor of New York
after they had a meeting at the Republican Governors Association gathering
in Arizona but Governor Andrew Cuomo claimed Christie quickly called and
told him that that "New York Post" report was wrong.

Christie told his version of the story at a news conference today.


GOV. CHRIS CHRISTIE (R), NEW JERSEY: Our meeting was essentially me and
Mary Pat with Rob and his wife asking us what it was like both to run for
governor with young children and to serve as governor with young children.
That was the entirety of the conversation. He did not say he was going to
run. He didn`t seek support.

And we didn`t talk about politics much at all except how it related to the
family. So that`s why I was, you know, kind of stunned when I saw the
report both in the "New York Post" and the "Daily News." So when Governor
Cuomo called me to discuss other matters, and brought that issue, I told
him exactly what he related which was Rob Astorino never asked me for
support, didn`t say he was running for governor nor did I pledge any


O`DONNELL: Chris Christie went on to explain how all that is subject to


CHRISTIE: I want to be clear about going forward. You know, as RGA
chairman, we`re going to elect a Republican governor in every state and
once that`s cleared up in New York as to who the Republican candidate might
be, then we`ll make an assessment at the RGA about the worthiness of
investing in that race. But we`ve been pretty clear by not getting
involved in primaries.


O`DONNELL: Jonathan Capehart, I love so many things about this story.
First of all, Governor Christie says Cuomo called me, Cuomo says Christie
called me.


They don`t agree on that little point.


O`DONNELL: They`re each saying no, I`m the important one he called me.
And -- but Fred Dicker at the "New York Post" is Mr. Inside Albany. He`s
their Albany guy. And he`s reporting on what is for him basically a Cuomo
story and it sounds like he`s got it.

CAPEHART: Well, yes, it sounds like he got it. It sounds like he got
Governor Christie and Governor Christie now head of the Republican
Governors Association, the early frontrunner for the 2016 presidential
nomination, someone who`s viewed with quite a bit of suspicion by the far
right as to whether he is conservative enough.

There`s no doubt Chris Christie is conservative but is he way conservative
enough for folks in Iowa and New Hampshire and South Carolina who end up
voting in the Republican primaries. This is something that Chris Christie
does not need right now.

O`DONNELL: And it is all about suspicion because if he were a Republican
above suspicion they would have just said, yes, we get it. You know, you
can`t endorse anyone because of the position you`re in. We get that. But
Christie is going to -- this is one of those exhibits about how he is
constantly going to be bumping into suspicion about is he really one of us.

CAPEHART: Right. And that shows the limits of his baffle reelection


CAPEHART: He had 51 percent of the Latino vote, 21 percent of the African-
American vote. Last week the "Star Ledger" took him to task for flip-
flopping on supporting his state`s version of the Dream Act. He
campaigned, he got 51 percent of the Latino vote by telling activists I
will sign, I will support the Dream Act, and then in a radio interview last
week, flipped up on it. This is how Chris Christie is going to try to
convince people and when I say people I mean the far right conservative
primary voters that he is one of them.

O`DONNELL: The new challenger emerging now is Governor Scott Walker.
George Will wrote a big fan letter to Scott Walker in his column. We`ve
got a new Republican piece saying Scott Walker could be the guy who comes
in here and actually ends up being the frontrunner.

CAPEHART: Well, look --

O`DONNELL: Appeals to more people than anyone else.

CAPEHART: Well he -- well what are the people?

O`DONNELL: In the Republican primary.

CAPEHART: Exactly.


CAPEHART: And that`s the key. Chris Christie is a phenomenal fantastic
general election candidate, but he can`t get there because if you have a
Scott Walker, Rick Santorum, all the other Republican governors who -- and
senators who might end up running, they are all above suspicion compared to
Chris Christie so Scott Walker indeed is Governor Christie`s biggest

O`DONNELL: And the -- as Walker emerges, though, he has to somehow get out
of the heat of what he created in his state. I mean there seems to be that
the negative on hand seems to be he created chaos.

CAPEHART: Yes, he created chaos. Remember the first part of his term was
spent fighting a recall.


CAPEHART: And all those folks, you know, crowding the state legislature
trying to push for his recall but he won. He -- he survived that. He also
went out and expressed some contrition for the way into office and how he
were --


CAPEHART: He needed to -- he needed to work with people. All of that will
work very well for those -- for those Republican primary voters but I`m not
sure if -- let`s say he did get the nomination, is that enough to have him
win the general? Probably not in the way Chris Christie would.

O`DONNELL: Jonathan Capehart, thank you very much for joining us tonight.

CAPEHART: Thanks, Lawrence.

O`DONNELL: Up next, the case of the Florida woman who was sentenced to 20
years in prison for firing a warning shot. An appeals court has ordered a
new trial. Marcia Clark and Zerlina Maxwell will join me.


O`DONNELL: And the spotlight tonight, Marissa Alexander is home for the


UNIDENTIFIED REPORTER: A Florida woman awaiting a new trial in a
controversial Stand Your Ground case is free on bond.

MELISSA HARRIS-PERRY, MSNBC ANCHOR: Marissa Alexander who was granted a
special pretrial release at 10:30 p.m. on Wednesday, thanksgiving eve after
spending more than 1,000 days in jail. And barely seeing her youngest
child who recently turned 3.

UNIDENTIFIED FEMALE: Marissa`s most important piece, her family`s most
important piece is that she`s home with her children.

UNIDENTIFIED FEMALE: This is a woman is a survivor of domestic violence
and here she is, I`d say being revictimized, being treated as the aggressor
when she was merely trying to defend herself.

HARRIS-PERRY: The woman was hospitalized in 2009 after being shoved into a
bathtub and hitting her head? She`s a victim. A woman whose estranged
husbanded has admitted to abusing all five mothers of his children. She`s
a victim.

UNIDENTIFIED REPORTER: The judge in the case said he was bound by state
law to sentence her to 20 years in prison after she was convicted of
aggravated assault with a deadly weapon.

HARRIS-PERRY: When that woman that woman, that victim who was just
recently given birth fires a warning shot near the man that has cornered
her in her home, she`s a victim who feel she has no other recourse.

UNIDENTIFIED REPORTER: On September an appeals court rule the judge in the
case gave improper jury instructions. And a new trial has been set for
next year.

UNIDENTIFIED MALE: We do know that this is temporary joy. But we still
have that. This is a victory but the battle is not over yet, you know, the
battle will be won in court.


O`DONNELL: Joining me now is Zerlina Maxwell, contributor to the "Grio"
and former prosecutor, Marcia Clark, author of "Killer Ambition."

Marcia, what was the legal turning point in the appeal here? It seems that
the jury instructions in the trial placed too much of a burden on the

MARCIA CLARK, FORMER PROSECUTOR: That`s right. That`s right, Lawrence.
It -- they actually require the defense to shoulder the burden of proving
that it was self-defense. And that is completely improper. The burden is
never on the defense. At most they can be required to show by a
preponderance but never proof beyond a reasonable doubt.

And in actual fact in most states all the defense has to do is raise a
reasonable doubt with their defense. It`s for the prosecution to disprove
that it was not -- to show that it was self-defense. That is their burden
and not the defense.

And placing the burden on the defense created a very critical error which
is why the case has now been reversed and set for retrial.

O`DONNELL: Zerlina, we all started talking about this case during the
Trayvon Martin case because here was an instance on what seemed like Stand
Your Ground but a black woman could not seem to achieve the same rights
under this law as a white man could.

ZERLINA MAXWELL, POLITICAL ANALYST: Right. Exactly. And I think that in
this case one of the things that we need to always be thinking about is
that she was going to the garage to get a licensed handgun. She had been
to the firing range. She knows how to use the gun. It wasn`t someone --
you know, flimsily, like picking up a gun and shooting it. And not having
known how to use the gun.

She knows how to use the gun. She was trying to defend herself. She
believes she was standing her ground, she was in her own home, and she
wasn`t afforded the same treatment as a George Zimmerman, and we were all
asking why. I think that was a very legitimate question.

Now in the second trial they`re not going to be talking about Stand Your
Ground but I think all of these issues are very important.

O`DONNELL: And the prosecutor is the same. It`s Angela Corey who is the
prosecutor in the Trayvon Martin-George Zimmerman case. Let`s listen to
her making the announcement of the charges against George Zimmerman.


ANGELA COREY, FLORIDA STATE ATTORNEY: Today, we filed an information
charging George Zimmerman with murder in the second degree. (INAUDIBLE)
has been issued for his arrest. I think that after meeting with Trayvon`s
parents that first Monday night after we got appointed in this case, Bernie
was there, John was there, our prosecution team was there, the first thing
we did is pray with them. We opened our meeting in prayer. Mr. Crump and
Mr. Parks were there. We did not promise them anything.


O`DONNELL: Marcia Clark, that was an emotional day. I remember that
announcement. And it`s just flawed, I think, to most observers out there
to see that the prosecutor with those sensibilities is the same prosecutor
in this case.

MARCIA CLARK, FORMER PROSECUTOR: Well, in a way, not so surprising to tell
you the truth. I think that she feels she has to take a consistently hard
line against anyone who is firing a gun and in any circumstance. And
because she prosecuted Zimmerman, almost feels like she has to prosecute
this woman as well because, you know, she, you know, if you want to equate
that way, that way these are people who are claiming self-defense but
firing a gun in the process. Now, no one was hurt in this case. I don`t
know the evidence in this case so, I can`t form an opinion. I don`t have
an opinion about whether she should be found guilty or not. But I do -- I
can see why the prosecutor would think she has to hold the line and appear
to be consistent.

O`DONNELL: Well, there is a number of issues here, guilt and sentencing.
Is there -- whatever this was, is it 20 years in prison? Let`s consider
something the prosecutor did know before trial. And this is the statement
of Rico Gray in his pre-trial deposition. This is something prosecutors
knew before they went to trial. This is the person Marissa Alexander fired
a warning shot because of hum and what she was expecting him -- from him.

He said if my kids weren`t there I knew I would probably have tried to take
the gun from her. You know, I just don`t know what would have happened.
If my kids wouldn`t have been there I probably would have put my hand on

What do you mean you would have put your hand on her? Probably hit her. I
got five baby mommas and I put my hands on every last one of them except
for one.

Now, Zerlina, there is such a thing as prosecutorial discretion. You may
think you have a certain kind of case based on evidence you have collected
so far. But when this person says this to you under oath about himself,
you should be able to imagine how that woman felt when that guy

ZERLINA MAXWELL, POLITICAL ANALYST: Absolutely. And that was not evidence
allowed in the first trial. So, Angela Corey should have stopped this and
she still has discretion now to drop the charges and we don`t have to go
through it the second trial.

But the evidence about his previous history was not allowed in the first
trial. And so, that key evidence, the duration have heard because I think
that they would have considered his history when thinking what was
Marissa`s state of mind? Did she think she was in danger of serious bodily
harm and that`s why she uses a gun? I think that these issues are issues
that a jury should have considered and they didn`t get the chance to hear
that evidence.

O`DONNELL: Marcia Clark, quickly, on this question of prosecutorial
discretion which includes prosecutorial anticipation of what a sentence
might be at the end of a certain trial?

CLARK: Yes, look. I think that Zerlina made a very good point. The
evidence that we`re talking about here is something that in California is
always admitted or very frequently admitted, battered woman syndrome,
battered person syndrome because it goes to the defendant`s state of mind.
It goes to explain her conduct in why she perceive a threat as eminent.
And it should be allowed him because the jury has to understand her mind
set and if her mind set is such that he has hit me before. He has tried to
strangle me before. And so, when he came at me I reasonably believed that
that had to do with her state of mind.

So, and the prosecutor must take that into account. You have t o take your
specific defendant and your specific victim into account when you file
charges. Nothing is done in a void. And nothing is done all the time in
the same way because people are different. Situations are different. So,
I agree this should be taken into account. I would need to know the fact
toward informative opinion as to whether it should be prosecuted. But I do
agree that the battered person syndrome that the evidence that she has been
through with this man should come into evidence.

O`DONNELL: Marcia Clark and Zerlina Maxwell, thank you both for joining me

And Zerlina, thanks for writing a great piece about the story.

MAXWELL: Thank you.

O`DONNELL: Thank you.

Coming up in the rewrite, three high school students in Rochester, New York
are arrested while waiting for their school bus. Their offense? Waiting
while black.


O`DONNELL: This weekend news viewers got a huge surprise watching their
evening newscast. The anchor man himself, Mr. Will Ferrell.


AMBER SCHATZ, NEWS ANCHOR: Hood evening. I`m Amber Schatz.

WILL FERRELL, ACTOR: And I`m Ron Burgundy. Thanks for joining us tonight.

Amber, you look lovely tonight.

SCHATZ: Thank you, Ron. I need you.

FERRELL: Are you married?


FERRELL: Well, I am. So, don`t give me ideas.

It`s not off then that you can tall a sheriff`s deputy a dummy and get away
with it even though I have.

SCHATZ: There is also a November (ph) for mustaches.

UNIDENTIFIED MALE: How long did it take you to grow that bad boy?

UNIDENTIFIED MALE: About 20 minutes.


UNIDENTIFIED MALE: You guys did a good job tonight. That was a good warm

UNIDENTIFIED MALE: Very good warm up. Yes.


O`DONNELL: Yesterday on the 58th anniversary of Rosa Park`s historic
refusal to submit to the rules of segregation on the bus at Montgomery,
Alabama, the Republican party`s official twitter handle sent this tweet.

Today we remember Rosa Park`s bold stand and her role in ending racism.

Yes, ending racism. You didn`t know that racism was ended? Well, it turns
out a few hours later after the Republican party was informed by like a
million reply tweets that Rosa Parks did not actually end racism in America
and that no one has actually managed to end racism in America, the
Republican party rewrote this tweet this way.

Previous tweet should have read, today, we remember Rosa Park`s bold stand
and her role in fighting to end racism.

If the Republican party`s first tweet have been right and racism had been
ended in America, perhaps these three kids would not have been arrested in
Rochester, New York last week while committing the crime of waiting while
black. They were waiting for their school bus. They are members of the
Edison Tech High School basketball team who were waiting for their school
bus to take them to a scrimmage basketball game on Wednesday morning. At
8:43 a.m., they were arrested and charged with disorderly conduct for
obstructing pedestrian traffic on this sidewalk. They told their story to
Rochester`s NBC affiliate.


UNIDENTIFIED MALE: You just downtown and mind your own business and next
thing you know anything can happen.

UNIDENTIFIED MALE: We tried to tell them that we was waiting for the bus,
but we was not catching a city bus but a yellow bus. He didn`t care.


O`DONNELL: Their basketball coach arrived on the scene, Jacob Scott. He
explained the situation to the arresting officer but that wasn`t enough to
stop the Rochester police from arresting three kids waiting for their
school bus. Coach Scott says he was threatened with arrest, too.


these young men were doing nothing wrong. Nothing wrong. They did exactly
what they were supposed to do and still and yet they get arrested.


O`DONNELL: One member of the school board is as outraged by the arrests as
the kids and their parents are.


pattern of young people especially young people of color being abused by
police authority and to me this seems like a clear case, part of a pattern.


O`DONNELL: Joining me now, Dan French, former U.S. attorney for upstate
New York and now in private practice.

Dan, you were U.S. attorney for the northern district which does not
include Rochester. Rochester is western district, if I have it right?


O`DONNELL: But, you know this area very well. Let`s start with

I mean, everybody knows that disorderly is the junk charge that every cop
has in their back pocket whenever they don`t have any real crime going on
in front of a man. And I have walked the streets of Rochester enough to
know that I believe it is virtually impossible to obstruct pedestrian
traffic in Rochester, New York, downtown at 8:43 a.m.

FRENCH: Yes. You know, I live in Syracuse, New York. It`s a similar
community. I would think 8:30 the day before thanksgiving would be a
fairly quiet time on those streets.

O`DONNELL: And you know, interesting developments, we have been
investigating this case, making phone calls up there, we have a police
source now in the Rochester department who is saying well, it didn`t
actually happen in front of 220 east main street as the police report
indicates. We have a picture of that address up right now. It actually
happened further down the street at 236. And in our Google mapping photos
of that, we don`t even see a business that could possibly have been
complaining about that. And that is relevant, Dan, because the police say
that there is a business there that has been complaining about loitering
and outside of the business. But still any previous complaints have
nothing to do with what these kids were actually doing there.

FRENCH: Yes. Lawrence, I think in these cases the problem is that people
are prepared to give law enforcement the benefit of the doubt. But you
need facts to do that on. And there is at least two or three facts that
are very troubling. One, the students were asked why they were there.
They told their story. As you just said, their coach came up and told
their story. There has been some information that a super visor arrived on
the scene and yet arrests were effectuated.

Under federal civil rights laws, there have been cases in second circuit
that have gone a lot further and a lot less facts than that.

O`DONNELL: And Dan, the civil action that arrestees in cases like this
sometimes pursue is a federal civil rights complaint under section 1983.
Do you see the elements of that kind of case here?

FRENCH: I really do. I mean, you know, whether or not you can prevail,
it`s a long road to prevail. But in these kinds of cases where you have
police officers acting under color of authority with clear information that
should indicate that the people that they are about to arrest have not
committed a crime, it`s when you sort of cross that barrier of judgment
that the courts have taken a dim view of that kind of police conduct. And
in this case, if the facts are being reported that the students told the
police officers what they are doing, that the coach told the police
officers what they were doing, and then they effectuated an arrest, those
are kinds of facts that can prevail in civil right cases in federal courts.

O`DONNELL: And Dan, in a case like this, is it the coach who would have
more credibility than the students or is it the combination of what you can
prove to be the actual truth of the students` position which is that they
are waiting if a bus which is scheduled and it`s a school bus. The
combination of the credibility factors there, how would you weigh them?

FRENCH: You would hope the students` statements in and of themselves would
be enough. I mean, it`s 8:30 in the morning on the day before thanksgiving
on a very quiet street where anyone could assume that. Their statements
should be enough. You add in their coach. And I think that the officers
have to be concern about how they conducted themselves. I`m sure there
were facts, perhaps you don`t know about, but that`s a troubling case. And
again, there had been cases that have gone a lot further. The fact that
the charges remain pending at this point, if I was a law enforcement in
Rochester, I would be thinking about issuing apologies and dismissing

O`DONNELL: Dan French, former U.S. attorney for the northern district of
New York. Thank you very much for joining us tonight.

FRENCH: Thank you.

O`DONNELL: Coming up, a 13-year-old gives a speech about marriage equality
and he does it at his bar mitzvah.




In my torah portion, by it say, Jacob works for seven years to earn the
right to marry (INAUDIBLE) daughter, his love, Rachel. Before marrying
Rachel, Jacob is first tricked into marrying her older sister, Leah.


O`DONNELL: That was Duncan McAlpine Sennett at his bar mitzvah last month.
The high point of a bar mitzvah for boys and bar mitzvah for girls is when
the 13-year-old makes a speech based on his or her study of the Torah.

In Duncan`s case, his study of the Torah and its treatment of marriage made
him an even stronger supporter of same sex marriage. Here is part of one
of the best bar mitzvah boy speeches you will ever hear.


SENNETT: Back then they seemed to have a perfect definition of what
traditional marriage meant for their time. When as time passes we have a
completely different definition today. So the question is, how has the
definition of traditional change since the days of the Torah? Just looking
at my Torah portion as a proved text, I think it has changed a lot. Leah
and Rachel had absolutely no say in marrying Jacob. It was like a business
deal between Jacob and Leah.

Today, in the United States, marriage is very different. No longer did the
fathers arrange marriages and women can marry whomever they want. While
studying my Torah portion and comparing and contrasting marriage in the
past and present, I found it would be irresponsible to exclude the topic of
gay marriage.

I am a very, very strong supporter of equal rights and the freedom of men
and women to marry whomever they love. People who disagree with me like to
quote "the bible" and say that traditional marriage should be between only
one man and one woman. But after seeing my Torah portion that I have just
read, the definition of traditional marriage is nothing like what people
think it is today.

Jacob married who sisters who were his first cousins. My Torah portion
taught me that the definition of traditional marriage has changed a lot
since the days of the Torah. So why can`t it change just a little bit more
so everybody can marry who they love.

And now that I`m a bar mitzvah, I will not only continue to support but
encourage others people to support equal marriage rights. Shalom.


O`DONNELL: Joining me now is Duncan McAlpine Sennett and rabbi Michael

Duncan, how did you decide what you were going to talk about in the most
important speech of your life so far?

SENNETT: Well, I have always been a very strong supporter of equal rights
and I just knew once I learned that it would fit with my Torah portion that
it was the right thing to do with my speech, so yes.

O`DONNELL: And were you surprised in your Torah study to discover the old
testament in the Torah were completely accepting of polygamy?

SENNETT: Yes, I was. When I first learned that Jacob married two sisters
who were his first cousins, it just threw me off. I was baffled. It was

O`DONNELL: Yes. Marriage has had a very flexible definition over time and
that was the point you were frying to make, wasn`t it?


O`DONNELL: And rabbi Cahana, this is when you discovered that you were
going to have a bar mitzvah boy stand up there and talk about marriage
equality, were you surprised? Had you had anything like that happen at any
previous ceremonies?

do really amazing jobs. But what Duncan did was exceptional. He really
spoke with such passion and such conviction. This is clearly a subject
that he cared deeply about. And I really love the fact that he found the
source in the Torah, really made it something that was connected to him and
he spoke in a way that really touched everybody in the room.

O`DONNELL: Let`s listen to more of Duncan`s speech because it is so
extraordinary and it contains some personal elements. Let`s listen to


SENNETT: The domestic partnership law affords some of the same rights as
marriage but still is not equal in name or benefits. While putting rights
up to a vote is never fair, marriage equality will hopefully make it to the
Oregon ballot in 2014. This subject is not only interesting but it`s also
very personal. My family is very close friends with many same-sex couples,
especially Joel and David and Jeff and Wade. They have influenced me to go
to prop 8 rallies when I lived in California to support the freedom to
marry and they are wonderful people, wonderful parents and wonderful


O`DONNELL: Duncan, you have been with this subject for a while it sounds


O`DONNELL: And what is it meant to know people who were actually not just
engaged in this as a crusade and a cause but actually desiring marriage
equality for themselves?

SENNETT: Well, I think they are really brave because everybody deserves
equal rights and yes.

O`DONNELL: Rabbi, Duncan has set a high bar for all the boys and girls who
will follow. Do you have any advice for future orators next year?

CAHANA: Well, all of our kids speak from the heart and I think that`s what
is rally meaningful. So, if you find something that you are passionate
about, if the Torah and the teachings really inspire you to connect to
something that is meaningful, follow it and it`s great. Struggle with the
text because that is really what we encourage people to do. And Duncan has
done a fine job of it.

O`DONNELL: Duncan, the issue of marriage equality has had some people
split from their religions. It seems as though it has strengthened your
bond to Judaism?

SENNETT: Yes. Because when I, for long time, I have been a strong
supporter of equal rights. But once I have a bar mitzvah, I really got to
go into the subject and I found lots of lots of ways to connect it with
Judaism and how it goes together really well.

O`DONNELL: Duncan McAlpine Sennett and rabbi Michael Cahana, thank you
very much for joining us tonight.

CAHANA: Thank you.

SENNETT: Thank you.

O`DONNELL: Chris Hayes is up next.


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