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All In With Chris Hayes, Friday, March 13th, 2015

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Date: March 13, 2015
Guest: Stacey Abrams, Hakeem Jeffries, Jeff Pertz, David Feige, Jack
Ashford, Tim Wu


CHRIS HAYES, MSNBC HOST (voice-over): Tonight on ALL IN --

ladies and gentlemen, is Jeb Bush is pro-gay.

HAYES: The anti-right versus Jeb Bush.

FISCHER: I think this disqualifies Jeb Bush from consideration for
the GOP nomination.

HAYES: Tonight, why it appears that 2016`s allegedly gay-friendly
candidate is starting to pander to the base.

Then, what is Rudy talking about?

RUDY GIULIANI, FORMER NYC MAYOR: If an African-American president
stood up and said -- I hate to mention it because of what happened
afterwards -- the kind of stuff that Bill Cosby used to say.

HAYES: Plus, new video from the Boston bombing trial. Can Dzhokhar
Tsarnaev`s surprising defense strategy possibly work?

And, hide your minions.


HAYES: Marvin Gaye`s family sets its sight on a new Pharrell William
song. The debate over "The Blurred Line" verdict continues. And the man on
cowbell from Marvin Gaye`s band gives me his thoughts on the verdict.

ALL IN starts right now.


HAYES: Good evening from New York. I`m Chris Hayes.

Jeb Bush is building a presidential campaign that reflects the
fundamental contradiction at the heart of the Republican Party`s handling
of an issue that was once a unifying source of strength, gay rights. The
former Florida governor who today visited the first of the nation primary
state of New Hampshire is giving a speech right now, was hailed by BuzzFeed
last month as the 2016 campaign`s gay-friendly Republican, thanks to who he
has hired.

Bush`s campaign manager in waiting, David Kochel, has been an
outspoken advocate of marriage equality. His top communications aide,
former RNC spokesman Tim Miller who is well-liked and openly gay.

That`s not significant. Remember the 2012 campaign, Mitt Romney`s
national security spokesman Richard Grinnell stepped down after less than
two weeks at least in part it seemed because of the massive amount of
blowback Romney was getting from the social conservatives from hiring a
openly gay adviser. Now, just three years later, Jeb Bush has hired an
openly gay top staffer, along with a number of same sex marriage

But, this is a big "but", this is still the GOP, the party of likely
presidential candidate Ben Carson who recently offered this theory on human


INTERVIEWER: You think that being gay is a choice?

BEN CARSON: Absolutely.

INTERVIEWER: Why do you say that?

CARSON: Because people who go into prison go into prison straight,
and when they come out gay. So, did something happen while they were in


HAYES: Just asking the questions.

Carson later apologized. But as for Jeb Bush, supposedly among the
best Republican on gay rights, his political action committee just hired
evangelical attorney Jordan Sekulow as a senior adviser, the son of
longtime gay rights opponent Jay Sekulow, Jordan Sekulow was executive
director of the Pat Robertson-founded American Center for Law and Justice,
which has worked through a local outpost to keep homosexuality a criminal
offense in Zimbabwe and elsewhere. And here at home, helped draft a
federal Defense of Marriage Act banning same sex marriage, filed an amicus
brief supporting efforts to keep sodomy illegal in Texas.

Hiring Sekulow prompted Dan Savage to ask how closely Bush`s gay
communication aide Tim Miller will work with Sekulow and Miller sleeps at

Miller told ALL IN he had no response to that tweet. He also pointed
to us to Bush`s statement after Florida begun allowing same sex marriage,
which reads in part, "I hope we can also show good respect for the good
people on all sides of the gay and lesbian marriage issue."

Respect or no, let`s be clear, Jeb Bush remains a stanch opponent of
same sex marriage, which he says should be left to the states. That means
if you`re gay, you live in, say, Georgia or Mississippi or any other
states, where same sex marriages are still being barred, pending the
Supreme Court ruling on this matter, Jeb Bush doesn`t think you should have
the right to get marriage.

Of course, Bush is far too tolerant for social conservatives like
Brian Fischer of the American Family Association who is incensed that Bush
has hired staffers who support gay rights.


FISCHER: But the bottom line here, ladies and gentlemen, is that Jeb
Bush is pro-gay. Jeb Bush now has come out very clearly and
unapologetically and without question as an advocate for the homosexual
agenda. I will tell you quite frankly, I think this disqualifies Jeb Bush
from consideration for the GOP nomination. I think that there is no
conservative, there is no conservative who can look at these hires, and say
that Jeb Bush is the guy who`s going to representing pro-family values as
the president.


HAYES: Joining me now, MSNBC contributor Josh Barro, correspondent
for "The Upshot" at "The New York Times".

Josh, I think this is going to be interesting to see how this circle
is squared in the 2016 campaign as all of these changes happen in public
opinion more broadly, but the GOP base is still the GOP base.

JOSH BARRO, MSNBC CONTRIBUTOR: Well, I think a lot of the circle is
likely to get squared by the Supreme Court.

HAYES: And so key.

BARRO: Yes, if we get a ruling in the next few months legalizing gay
marriage in the whole country, this issue will be mostly taken off of the
table. The pattern that we`re seeing on most states where either state
supreme court or the federal courts in the state legalize the same-sex
marriage, it`s been Republican officials basically saying, well, I tried
and there`s nothing more I can do. I mean, Chris Christie walked away
without appealing it through the courts that he could have.

So, you have seen the Republican officials breathing a sigh of relief
when the issue is taken away from them. I think it`s going to happen in
the federal field. You will have these residual issues of who has to bake
a wedding cake for whom, but those are largely regulated by state
government. So, there maybe some talk about it in the campaign.

But I think gay issues will loom much smaller in this campaign than
they have in any -- in recent years.

HAYES: This is such a key issue. I mean, this has gone from the
fight Republicans wanted to pick, to a fight they are happy they are about
to lose. I mean, the resounding substantive and the ideological
repudiation of opposition to gay marriage is going to be the biggest
possible political boon to Republicans, because they aren`t going to have
to walk through this campaign with this massively unpopular position.

BARRO: I think there are a lot of Republicans, especially people who
work as Republicans for a living, that are happy that they are about to
lose this fight. But I also think there are a lot of people who sincerely
oppose gay marriage who are really resigned to the fact that they are going
to lose this fight.

I think it is not like abortion where it`s something that people in
the Republican base are so morally outraged by abortion, and they say the
public opinion on abortion has not really moved very much over the last 40
years. They still see it as a live fight. That will keep being fought

I think people, even if they strongly oppose gay marriage, a lot of
them are realizing that the public is against them, that this is not a
fight they can win politically, and it`s one they`re willing to give in on
in a lot of cases.

HAYES: We are having this debate about whether the Supreme Court
ruling is going to be Roe v. Wade, or Loving v. Virginia. Loving v.
Virginia, of course, saying it`s unconstitutional ban interracial marriage,
Roe v. Wade, of course, there is a constitutional right to an abortion, one
of which , Loving versus Virginia, there`s no one running around now saying
they need to overturn it, Roe v. Wade still the point of the cultural
battle 30, 35 years later.

BARRO: Yes, I mean, I think you can just look at the polls and see
that it`s likely to be Loving. And you can see it in the behavior of
people like Jeb Bush. I mean, hiring an openly gay communications
director, it`s not just any top staffer. It`s a top staffer who will be
seen as a public voice very frequently.

HAYES: All the time, on the cable news.


BARRO: Yes, will have to deal with outside groups, and it`s something
that I think would have been -- would have gotten a lot of the blowback
four years earlier, as we saw with Rick Grinnell. Now, I think Rick
Grinnell had --

HAYES: Had other issues.

BARRO: -- with a lot of people about a lot of things. But certainly
a big problem --

HAYES: That guy --

BARRO: Yes, exactly. But a big problem for the campaign for him was
being openly gay, and I have seen very little blowback. I mean, it`s
telling that you have to go to Bryan Fischer for these quotes.

HAYES: That`s right, that`s a good point.

BARRO: Because Bryan Fischer --

HAYES: Who does not have much of a constituency.

BARRO: Right. He`s this outrageous talk radio host, who I only ever
see quoted by liberals being outraged by Bryan Fischer.

As far as I can tell, there are no Bryan Fischer fans --

HAYES: He`s secretly is on our payroll.

BARRO: I`ve never had a conservative tell me they love listening to
Bryan Fischer.

HAYES: The other thing I think that`s key to understand here about
what Jeb is doing and how he is doing this, is that for all these reasons,
his family name, his brother`s connection with evangelicals, the amount of
fundraising prowess, he can afford to stiff arm the base a lot more than
any other candidates can and that`s going to come in much really handy down
the line.

BARRO: I think we will see how much he can afford to stiff arm the

HAYES: That`s the big test.

BARRO: You know, a lot of these hires he`s made, he is basically
hiring most people who are worth hiring in the Republican staff`s base
right now, or he`s trying to. But he`s starting from position of strength,
but I think he might be a little bit too cocky in certain ways. I don`t
think this is the issue where he`s going to have a big problem with the

HAYES: Immigration and Common Core. He is talking about Common Core
right. We are like dying to cover Common Core, and we`re going to do that,
I promise, when we figure out how to show it on television.

Josh Barro, thank you very much.

BARRO: Thanks.

HAYES: With defeat in the air on marriage equality, as Josh was
saying, Republicans have fallen back to a new swath of terrain on which
they could continue to wage culture war. The idea you should be able to
use religion to opt-out of onerous requirement to treat people equally.
Laws allowing religious exemptions have been passed in at least 20 states,
with many written by a small cadre of conservative groups in Washington.

Now, in Georgia comes perhaps the most e egregious such law yet. The
Georgia Religious Freedom Restoration Act designed to, quote, "provide for
the preservation of religious freedom."

What does this mean exactly? According to "The Daily Beast",
restaurants could refuse to serve gay or interracial couples, city clerks
can refuse to marry interfaith couples, hotels could keep out Jews, housing
developments could keep out black people, pharmacies could refuse to
dispense birth control, banquet halls could turn away gay weddings, schools
could specifically allow anti-gay bullying, and employers could fire anyone
for any religious reason.

Joining me now, Democratic Georgia state representative, Stacey
Abrams. She is the Georgia house minority leader.

Representative Abrams, that sounds hyperbolic to me. Can the bill
possibly be as bad as described in that quote?

it`s as bad, but it`s really, really close. One of the things that`s most
interesting yesterday, there was an open letter from Wiccans saying thank
you to Josh McKoon, the author of the legislation, for validating their
religion and allowing them to express their religious freedom. So, I think
the scope of this bill is really not understood just yet.

HAYES: Well, what exactly is the idea here, right? I mean, religious
freedom sounds perfectly fine. I mean, but how big is the exemption carved
out for folks to cite the religion to not do something, perform some
service in the public space?

ABRAMS: The problem with SB-129, it`s a martyr in search of an
oppressor. This is a bill that essentially says, if you is a religious
belief, but we don`t define religion, then you don`t have to comply with
the certain laws, unless the government can prove that it is really, really
necessary. So, it sets a different standard in the state laws than we
currently have, and I think it`s unnecessary because we have federal
protections that are already in place and can meet any of the examples that
had been brought forth by the authors of the legislation.

HAYES: We saw the business community in Arizona rally to get Governor
Brewer to veto the religious freedom in Arizona. What is the current state
of play in the politics of this legislation, which as I understand has a
broader scope than almost anything that`s been passed anywhere else?

ABRAMS: It does. The business community I think has been watching
its movement. The House actually just adjourned our crossover day, and so
our version of the house did not move out of the committee. The Senate
version did move and crossed over and sent to the committee that just
refused to hear our version.

So, I think that the pressure being brought to bear by the business
community, by the LGBT community, by the faith community that really does
oppose this bill in some quarters, I think those will combine to stop the
bill. But, you know, it`s not over until the last day of the session.

HAYES: Do Georgia Republicans view this fight around the religious
freedom as a fight where they have the wind at their backs, in the way that
they might have viewed a marriage equality fight, say, 10 or 12 years ago?

ABRAMS: I think some of them do. I think the hard core group that is
really pressing the bill believes that, but I think to your point, if you
look at the business community, if you look at moderate Republicans, at
business-minded Republicans, they saw what happened in Arizona, they heard
about the businesses pulling out, franchises saying we`re not going to with
come, and I think that the business community, and the Republican part of
the party that remembers that they`re supposed to be pro-business will
clearly eschew trying to move this bill forward.

HAYES: Finally, how does it look as this issue plays out as we head
into 2016, as we await the Supreme Court to weigh in on this? How does
this issue look and resonate to someone in the state of Georgia, the red
state of Georgia, dominated by conservatives and the Republicans? How do
you think this is going to play out over the next year?

ABRAMS: I think that this will actually have its death knell by the
end of April. When our legislative session ends, I believe that this will
be the end of this conversation. I think it`s the last gasp ahead of
what`s going to happen with the Supreme Court, and most people on both
sides of the aisle believe that the Supreme Court will validate gay
marriage. And while this, I think, is an expansive bill that goes with
beyond the four corners of we hate gays, I think the expansive nature has
terrified enough people that whether you are pro-LGBT or not, nobody wants
this bill to be atoned here in Georgia, because we understand that it has
the ability to harm not only the communities they are attacking, but to
harm a vast range of communities that we have not anticipated.

HAYES: Georgia House Minority Leader Stacey Abrams, thank you.

All right. Self-appointed America`s mayor said this week that
President Obama should be more like Bill Cosby. He did that. What the
heck is going on with Rudy Giuliani? We`ll talk about it, ahead.


HAYES: And now, this Vine from Vice President Joe Biden.


million of these a day, so just give me five.


HAYES: Can we talk about how great it is that the Union Joe Biden is
now affecting the way that the real Joe Biden affecting the real Joe Biden
presents his public image?

The Vine is part of the First Lady`s Gimme Five Challenge to celebrate
the fifth anniversary campaign. And the vine says that the first lady is
encouraging Americans across the country to give high fives when they see
someone making healthy choices, to challenging everyone to give me five
things they`re doing, to eat better, be more active, lead a healthier life.

There may be a big scandal brewing, though, because some people on the
Internet who are paying very close attention have discovered Joe Biden
actually only did four bicep curls, not five. So, if he`s actually going
to run against Hillary Clinton, weight-gate is probably the best news
Clinton`s had all week.


BIDEN: Yes, I could do a million of these all day.




HAYES: Fresh off his assertion last month that Barack Obama does not
love America, former New York Mayor Rudy Giuliani has another hot take on
the president, he should be like another famous black man -- wait for it --
Bill Cosby.


GIULIANI: Seventy percent of the homicides in New York City are
committed by African-Americans. That there are many, many extremely many
understandable reasons for it historically and environmentally. And if an
African-American president stood up, and said -- I hate to mention it
because of what happened afterwards -- the kinds of stuff that Bill Cosby
used to say. This is our responsibility.


HAYES: He hates to mention it because of what happened afterward.
But make no mistake, what happened afterwards was the press finally paying
attention to public allegations against Bill Cosby which dates back to
2005, in which he has consistently denied, but then last year, with
literally dozens of women coming forward with allegations that they were
drugged and raped by the comedian, allegations that if true paint a
monstrous picture of predatory behavior, it became impossible to ignore.
And as a result, though he`s never been charged and he`s continued to deny
all allegations against him, Cosby has experienced a pretty epic fall from

What happened before was most of us pretending we`ve never heard of
the allegations against Bill Cosby, he held himself up as the arbiter of
moral probity in the black community.


BILL COSBY, COMEDIAN: We knew how to fight, we knew how to protect
our children, protect our women. Today, in lower, lower economic
communities, some people, and not all, some people are not contributing to
that protection, and the character correction has not happened. Many
times, it`s the TV set of BET or the videos played, kids look at it and
they admire it.


HAYES: According to Rudy Giuliani, that Bill Cosby, the one who at
that point had already been publicly accused of sexual assault, the one who
now stands accused of sexual assault as recently as 2008, that`s whose
example President Obama should follow.

I`m joined by Congressman Hakeem Jeffries, Democrat from New York, who
represents parts of Brooklyn and Queens.

Congressman, what do you think of former Mayor Giuliani`s suggestion?

REP. HAKEEM JEFFRIES (D), NEW YORK: Well, Chris, good evening.

This falls under the category of, you cannot make this stuff up. I
mean, this is another Rudolph Giuliani divorce from reality moment. I just
can`t really figure out. He`s completely lost control.

Now, I had the opportunity to survive eight years of Rudy Giuliani as
mayor, and he was widely known for his mean-spiritedness at this point.
But this is something very different. This almost requires sort of a
clinical intervention in terms of his reference to Bill Cosby of all people
at this moment.

The facts here are important, and clearly, Rudolph Giuliani has not
paid attention to the facts. Since President Obama first set foot at 1600
Pennsylvania Avenue, he has consistently talked about responsibility within
the African-American community, particularly as it relates to black fathers
-- black fathers in some instances who had not been actively involved in
their children`s lives.

This took place with some degree of regularly every Father`s Day. He
would regularly appear in a black church. In fact, Chris, there were some
African-Americans who accused the president of being too harsh in not
recognizing the fact --

HAYES: There were many who said that this was -- he was playing this
ridiculous game of responsibility politics that harkened back to the pound
cake speech of a man named Bill Cosby, when he was touring around the
country telling people to pull their pants up.

JEFFRIES: That`s absolutely correct. And so, the president has been
extremely balanced in his approach. He recognizes that there are historic
issues. He recognizes that the overwhelming majority of people in the
African-American community are law abiding citizens who contribute to this
great country. There is a small fraction of individuals who haven`t been
displayed personal responsibility, who`ve engaged in irresponsible acts.
But that`s no different in many ways than almost any other community.

Rudolph Giuliani consistently fails to point out that 80 percent of
the violent acts against white Americans are committed by white Americans.
Certainly, we`ve got a black on black violence issue that we`ve got to deal
with, it`s very complex. Many of us are focused on trying to resolve it.

But this race-baiting that Rudolph Giuliani continues to engage in,
this taunting of the president, is certainly beneath the mayor`s former
office that he held and really has shown a sad, pathetic degradation in
terms of his public persona.

HAYES: What do you think he`s doing? Really, I`m curious about the
role that Rudy Giuliani had seemed to carve out for himself in the last six
months, as the kind of -- as the kind of scourge of the Black Lives Matter
movement, as the person who`s on the other side of the protesters that we
have been seeing across the country, you know, sort of demanding equality
and accountability?

JEFFRIES: Well, you know, this is not inconsistent with Rudolph
Giuliani`s unfortunate history. As you probably will recall, Chris, in
that first campaign in 1989 when he ran against David Dinkins, you know,
there was a lot of the concern with the coded language that was used, not
just by candidate Giuliani, but by many of his supporters. He infamously
appeared at a police riot that took place in front of city hall. It was
widely characterized as such during the Dinkins administration when some
members of the NYPD gathered at city hall, some in mob-like fashion,
Rudolph Giuliani gave a red-meat type of speech there.

And there have been many other instances where he has displayed
insensitivity or irresponsibility even during his mayoralship.


JEFFRIES: What seems to be happening right now is just this quest for
relevance, and it really is unfortunate in the manner in which he has
communicated over the last few weeks.

HAYES: Congressman Hakeem Jeffries, thank you very much.

JEFFRIES: Thank you.

HAYES: Fresh off of the victory in the "Blurred Lines" trial, Marvin
Gaye`s estate may have their eyes set on another Pharrell William song.
That`s ahead.


HAYES: Tonight, evidence of another protest movement of federal
terrorism authorities have taken a interest in. This one, Black Lives
Matter. The nationwide movement borne out of the shooting of unarmed 18-
year-old Michael Brown in Ferguson, Missouri, spread across the country
after a series of unarmed black men were killed at the hands of police,
Eric Garner, Tamir Rice, who was a 12-year-old child. Last week, Tony
Robinson in Madison, Wisconsin.

Now, one such protest took place in last December when over 1,000
people took over the Mall of America in Bloomington, Minnesota, during the
peak of holiday shopping season.


PROTESTERS: Black lives matter! Black lives matter!

TV ANCHOR: Hundreds of protesters take over the rotunda at Mall of
America. They`re demanding change in police behavior, as part of the Black
Lives Matter movement. The numbers just released showed that the
Bloomington Police Department arrested 12 protesters at the Mall of America
today. The mall told the protesters they could not enter the building
because it is a private business. They did offer a neighboring parking
lot, but it didn`t stop hundreds from heading inside. They were there
until they were forced out by the police.


HAYES: Now, the stand in produced a surreal scene in which the mall
posted a sign reading, quote, "This demonstration is not authorized. It is
clear violation of Mall of America policy. We expect all participants to
disperse at this time. Those who continue to demonstrate will be subject
to arrest."

Along with that warning, came a heavy law enforcement presence. Local
police and sheriff`s officers were on the scene as well at least 100
private security guards who were hired by the mall.

But they weren`t the only law enforcement agencies involved in
monitoring the nonviolent demonstration. The Intercept reports today that,
quote, "members of an FBI joint terrorism task force tracked the time and
location of the mall protest." Intercept obtained an email from a local
police officer and task force member to a fellow officer and task for
member with information from a source about the date and time of the

The FBI joint terrorism task force created in 1980 and based in 104
cities is described on their website as, quote, "our nation`s front line on

In a statement to All In, an FBI Minneapolis spokesperson told us the
officer, quote, "had a law enforcement obligation to pass along the
information to the Bloomington Police Department, as the information
pertained to potential criminal activity."

That potential criminal activity was, the FBI told the Intercept,

But it`s far from unheard of for authorities to take an interest in
protest movements. In Boston, in the fall of 2011, for example, even as
the U.S. government was receiving warnings about alleged Boston Marathon
bomber Tamerlan Tzarnaev, according to an NBC News investigation, a key
Boston police counterterror intelligence united, funded with millions of
dollars in U.S. Homeland Security grants, was closely monitoring anti-Wall
Street demonstrations.

Less than two years later, three people were killed, more than 250
were injured when two bombs went off at the Boston Marathon.

The trial for the surviving Tzarnaev brother accused in the bombing is
underway in Boston. More on the riveting surveillance footage that`s been
put in front of the jury next.


HAYES: Today, a motion to dismiss charges against Dzhokhar Tsarnaev
was denied and the trial will resume on Monday. This week, jurors were
shown previously unreleased footage purporting to establish the full extent
of Dzokhar Tsarnaev`s culpability in the Boston Marathon bombings of April

NBC News justice correspondent Pete Williams filed this report.


PETE WILLIAMS, NBC NEWS CORRESPONDENT: Prosecutors say these videos
never before shown publicly were gathered from dozens of surveillance
cameras. Assembled together, the FBI says they show Dzhokhar Tsarnaev with
his older brother walking along the marathon route with bombs in their

The FBI says a key piece of evidence is surveillance video aimed at
this spot on Boylston Street. They say it shows Dzhokhar Tzarnaev walk up
with a backpack, make a cell phone and then leave without the backpack.
Seconds later, a second bomb goes off where he had been standing.

That is him circled, the FBI says, standing in the crowd. After he is
there awhile, prosecutors say, his backpack can be seen resting on the

A few minutes later, Tsarnaev makes a quick phone call to his brother,
the FBI says, and walks away. Then comes the searing white hot flash of
the bomb. Witness after witness described what followed as chaos.

As the first responders jumped over barriers and rushed toward the
blast site to help the injured, the FBI says this surveillance camera
captured the image of Tzarnaev running away from the scene. Barely half an
hour later, with victims in the hospital facing amputation prosecutors say,
he was calmly shopping for milk. And the next night, the government says,
another surveillance camera showed Tzarnaev and a friend checking into a
campus gym for a workout.

Pete Williams, NBC News, Boston.


HAYES: Tzarnaev has been charged with 30 counts, including conspiracy
to use a weapon of mass destruction resulting in death, and conspiracy to
bomb a place of public use resulting in death.

Tzarnaev has plead not guilty, but in an opening statement Tzarnaev`s
defense attorney Judy Clarke said, quote, it was him.

New York Times explained her tactic this way, "defense lawyers in the
most challenging death penalty cases often start by admitting a certain
degree of guilt then arguing that someone else deserves more of the blame.

(inaudible)to explain that unusual strategy, let`s bring in former
public defense Dave Feige, professor at the National Criminal Defense
college and author of Indefensible.

All right, I have to say, Dave, I actually don`t understand what`s
going on in this trial. I really don`t. So, he has plead not guilty -- I
actually don`t understand why the government wouldn`t take a plea and send
him to...

DAVID FEIGE, AUTHOR: Well, that is the real question right there,
Chris. I mean, correct, he has plead not guilty. He has conceded
functionally his guilt, and he has done that tactically.

HAYES: So what do you mean by that? Like what is-- I guess the
question is if you get up in opening statements in a trial of your client
in which basically everyone can see he`s guilty based on the, and you,
yourself, say he is guilty, what are you doing in the trial? What case are
you putting on if you`ve already conceded that state`s case against him?

FEIGE: That`s great. And to understand that. And to understand the
particular mechanics of this case, you`ve got to understand that it`s a
death penalty case. And he has no choice since he`s already offered to
plead guilty for life. He`s got no choice but to go to trial.

What that means is that the strategy of the defense here is to try to
avoid death. And one of the ways to do that is to essentially concede the
guilty phase and focus on the penalty phase. And there are a bunch of
advantages to that.

HAYES: OK, so what are the advantages? I mean, I guess the idea is
you can start making your penalty case, right, usually trials, capital
cases, they have a guilt phase and then if the person if found guilty there
is a penalty phase which is a whole other sort of separate trial of should
this person live or die. What you`re saying is they can get a head start
on the second phase and just use basically the guilt phase for that.

FEIGE: That`s one of the things. That`s exactly right.

Let me put it to you. There are three things. First of all, by
pleading not guilty, you preserve your rights to appeal. There are going
to be some real extant issues, most significantly the venue issue. So if
you plead guilty, you lose that. If you plead not guilty you preserve
that. So that`s one reason not to do it.

And the second reason not to do it is because, you want to maintain
your credibility with the jury. It looks kind of crazy if you say he is
not guilty. He`s not guilty. OK, now that you found him guilty, OK, so he
was guilty, now let`s argue about death.

Instead, you become a much more credible advocate with the jury you`re
going to spend a lot of time with if you basically concede up front what
you can`t dispute. That`s just being honest. And jurors appreciate it.

And then there is a third thing, if you want.

HAYES: Yes, please.

FEIGE: OK. So the third thing. The best way to describe the third
thing is in reference to like horror stories or movies or something awful
that you`ve seen, right. Everybody out there has probably taken a look at
something absolutely gruesome. The first time you see it, it is utterly
shocking. The second time you see it, it is shocking, but a little less
shocking. The third, fourth and fifth time, you become used to what you
are seeing, and there is an enormous amount of gruesome evidence in this
case. And by challenging the guilt phase and by previewing this evidence,
which by the way would be coming in, in the penalty phase anyway, you get a
jump on getting the jury used to what they are going to see.

And there is a gap, a temporal gap between when they see it, right,
and the time they have to decide the big question in the case, which is
live or die.

HAYES: Fascinating. That -- wow. OK, well, now I actually -- now I
understand it.

David Feige, thank you.

FEIGE: My pleasure.

HAYES: Coming up, we bring you the story of someone who has never
backed down from a challenge. He`s donned the shoes of the most powerful
man of the world. He`s worn shoes with blades on them, and now he`s worn
shoes with cleats
on them. We will tell you why next.



WILL FERRELL, ACTOR; Ladies and gentlemen, can I please have your
attention, I have just been handed an urgent and horrifying news story.
And I need all of you to stop what you are doing, and listen -- cannonball!


HAYES: That is pretty much what happened when Will Ferrell decided to
partake in Major League Baseball spring training this week. Ferrell
underwent ten grueling wardrobe changes playing every position on the field
for 10 different Major League Baseball teams who were all down in Arizona
for spring training.

The stunt is part of an HBO special later to air later this year and
will raise money to fight cancer.

Will Ferrell, a California native, started the day with the Oakland
A`s, earned a standing ovation while in the outfield for the Los Angeles
Angels, and closed out long day as the San Diego Padres.

Farrell who is not really known for playing introspective characters
reflected on the day.


FERRELL: When I embarked on this journey way back at breakfast, I
thought to myself, could I do it? The answer is yes.

I brought passion to the field, dedication, ability and a lot of

The ball moves fast out there, a lot faster than it looks on
television. It is like a speeding bullet. It is horrible, terrifying.




UNIDENTIFIED MALE: A federal jury says that one of the decade`s
biggest hits "Blurred Lines" infringed on the copyright of Marvin Gaye`s
"Got to Give it Up." In all, Gaye`s family was awarded $7.3 million,
including money from song`s profits, $1.8 million from Robin Thicke, $1.6
million from Pharrell.

UNIDENTIFIED MALE: They thought that we would not have the
wherewithal to fight this fight. They bet wrong. And they`ve lost.


HAYES: Fresh off their victory in the biggest music copyright case in
a generation, the family of Marvin Gaye is now deciding whether to take on
another chart topping hit, "Happy" by Pharrell Williams.

As Rolling Stone notes, videos posted on YouTube have pointed out
alleged similarities between Pharrell`s Grammy-winning hit and Gaye`s 1965
single "Ain`t That Peculiar." Although the family has not officially taken
any step towards another lawsuit, Gaye`s daughter tells CBS News, "I`m not
going to lie, I do think they sound alike."

Take a listen and see for yourself.


HAYES: Now, from an amateur perspective those songs don`t sound a lot
alike to me. What a jury might think, though, is a different matter.

On Tuesday, a federal jury`s decision that another Williams` song
"Blurred Lines," copied another Gaye song, "Got to Give it Up" was widely
criticized, prompting headlines like "Burred Lines verdict a blow to
creative expression," and "The Blurred Lines verdict is bad news, even if
you hate Robin Thicke."

Last week, we went to a recording studio here in New York to get at
the heart of the Gaye family`s case. NYU professor Jeff Peretz told us
there was not case there.

But he did say that "Blurred Lines" and "Got to Give it Up" have
stylistic similarities specifically in the drum and cowbell patterns.

Joining me now is the man behind that cowbell sound, legendary Motown
musician Jack Ashford, who is the percussionist in Marvin Gaye`s "Got to
Give it Up." Mr. Ashford, welcome. Thank you for joining us.


HAYES: I want to get your opinion on the verdict, but first I want
you to tell me how you went about creating that very distinctive sound that
is the anchor of "Got to Give it Up."

ASHFORD: Well, you know, at Motown, we were known for creating
different things to sound in order to fit our rhythm that we made. Like we
had tire chains, and things like that, that we would experiment with. So I
was accustomed to looking for the new sounds.

And so when we were in the studio doing "Got to Give it Up" Marvin
wanted a cowbell sound, and I didn`t have a cowbell. So I used something
else. And so, when I got finished with that, he said, what else you got in
your bag? I said, I have a instrument here that I play here. I said, I
have never used it before but I think that it will fit this song. And so I
came up with another sound, which was called a hotel sheet.

So, everybody flipped out over it, and it worked. And so he said I
love it, you know, and we put it out. And of course, it is history now.

HAYES: Can you show me what you mean by that. You were during the
commercial break.

ASHFORD: Pardon?

HAYES: Can you snow me what you mean by that, what you`re using
there. Yeah.

ASHFORD: Absolutely. Absolutely. You want me to the play a little
bit of track?

HAYES: So is that sound actually in the track?

ASHFORD: It is in the second part of that song.

HAYES: Fantastic!

Well, let me ask you this, you know, the cowbell -- the
distinctiveness of the cowbell, the sort of the roomy sound of the
recording, the syncopation of the beat and the baseline, all these are
reasons that people thought the two songs sounded alike. My understanding
originally, you didn`t think they did, and then you did. What changed your

ASHFORD: Well, the thing is, you know, everybody that writes a song
is going to write close to somebody else`s song anyhow. You`ve only got so
many chords.

But the thing is, after they started talking about how much they love
Marvin`s music and everything. And, you know, I`m paraphrasing, you know,
he got as close as he could get without getting in the way of it. I think
that some of the things that he said is adulation of what Marvin had done
back in the day showed that he was more influenced than was necessary to
let go as not being a copy of what he was listening to.

We all -- you know, as an author, we all listen to other people`s
music. And I listen to his music. And I think if you incorporated some of
the things that Marvin had in his version, you would have seen a closer
similarity between the two songs. Because you are only dealing with really
rhythm, you know, feels
good, then that is what you get.

But, you know, at one time when they determined what was plagiarism
and what wasn`t, was the melody. If you wrote the melody too close to
another guy, then the melody would determine whether you had copied a song.

Well, as things went on, they had to get rid of the melody, because
they stopped putting records out didn`t even have a melody, they didn`t
have nothing but lyrics. And so they had to come up with something. And I
think what they came up with was some of the statements that were made by
the author of "Blurred Lines" is what helped them make that decision.

HAYES: That is a fascinating point. It gets to exactly what we`re
going to talk about with our next guest about what part is the copyright
infringement. Musician Jack Ashford, thank you so much for time, sir, I
really appreciate it.

ASHFORD: Absolutely.

HAYES: As I mentioned earlier, I went to a recording studio last week
to see for myself whether the family of Marvin Gaye really had a case. NYU
professor Jeff Peretz told me they didn`t. I`ll get his reaction to this
verdict along with Tim Wu next.


HAYES: That`s Jack Ashford who played the original percussion on that

I`m joined now by Jeff Peretz of the Clive David Institute of Recorded
Music who spoke to me just last week ahead of the "Blurred Lines" verdict,
assured me there was no case. And Tim Wu, professor of Columbia Law
School, who wrote a piece on the verdict in the New Yorker, "Why the
Blurred Lines copyright verdict should be thrown out."

Good evening to you both.

What happened, buddy?


HAYES: Well, maybe you were right and the jury got it wrong.

PERETZ: Well, you know, I think what happened was that the case wound
up actually being played out is like a personality contest. And I think
the hubris of Robin Thicke and Pharrell Williams kind of did them in. And
it was more about who the jury liked more and not necessarily about the
math behind the music

HAYES: Well, emotionally, right, people like this verdict. I mean,
people have been getting -- people are mad at me for saying I think it is a
bad verdict from a sort of legal perspective because Marvin Gaye is beloved
and Robin Thicke is despised I think is what it sort of comes down to.

And they basically, as you heard Jack Ashford just say he basically
said when I heard the songs, I didn`t think there was an issue, but then
when I heard them
talking about how much they were copying Marvin Gaye I thought there was an

You wrote a piece basically saying not only that it`s a bad verdict,
but that it should be thrown out on appeal, that it`s essentially legally

TIM WU, COLUMBIA LAW SCHOOL: I think it will be. I think the judge
made a
mistake letting this go to the jury, where it becomes, as you just said, a
trial about whether people like Robin Thicke. The verdict was pretty clear
on that. He lied to Oprah Winfrey, I mean it`s over for him.

So the judge should have taken it away from the jury and said, listen,
you cannot on a style. You cannot copyright a whole genre of music.

And you see the family now is saying we own this, we own all of these
songs. And it`s just showing how far it went.

HAYES: But why should I care? I mean, what are the stakes here
right, in terms of the way that both music gets made and then creative
production more broadly?

WU: You know, it`s actually an issue of expressive freedom, I think,
even the first amendment. You know, for a big famous artist it is not a
big deal, but someone starting new and they`re trying to do a song they
want to maybe do it in the style of Marvin Gaye or maybe the style the
Rolling Stones or something, they`re going to get sued right away? I mean,
it`s a serious issue for artists and creators of all types.

HAYES: And Jack was actually sort of saying that, right? Like
everyone is like you made this point to me where we were in the studio
where you were like it has got to be the notes, ultimately it`s got to be -
- can we look at the baseline for a second, because I think actually when I
saw this, the baseline was one of the things that they contended were
ripped off, but they`re not the same baseline. It`s just like as a factual
matter you looking at your screen right now. Look at them. Those are not
the same.

PERETZ: But the rhythms were the same. If you look at the
transcription of the drum pattern and the cow bell pattern, they would line
up. But we don`t consider rhythm to be a determinate factor in copyright,
the melody is as Jack said as well.

HAYES: And the reason is why?

PERETZ: It`s a good question. I mean, like the song, the tune of the
song is what is considered to be the heart and soul of the song.

I think this does start a great conversation. I think that, you know,
you talk about the blues as being a style of music. The chord progressions
are all kind of the same, most of the melodies are, the rhythms are. And
it`s a big, broad brush, so anybody can make a blues song and not deal with

This gets a little closer than that. And so I think it`s time for a
conversation about the way that these songs were recorded, or "Blurred
Lines" was recorded and "Got to Give it Up."

The studio production style for it has a lot to do with the way it was
constructed. It wasn`t written on a piece of paper on a notebook. And so
using that as the only determinate factor is where things get a bit

HAYES: Why is style an important thing to defend from copyright

WU: Well, I mean, look, everyone when they start they write in a
style. You know, you`re writing a novel, you`re like well maybe I`ll write
a fantasy book, but you don`t have to like pay Tolkien, you know. Or maybe
I`ll write a book about wizards or something, you don`t have to pay J.K.

Style is like where people start creating. They just think all right,
what style am I going to write in. And if you say all right any time you
do that you need to think, oh, you know, is that owned by somebody else?

It really is inhibitatory of basically creative freedom. And that`s
why I`m saying it`s a first amendment issue.

HAYES: You`re starting to put these road blocks. Although, part of
the issue, to push back on that, right, is that we`re not dealing with
someone starting out, right, we`re dealing with Pharrell Williams and Robin
Thicke. And I think part of...

PERETZ: Admittedly trying to get as close to him as they can.

WU: But the same law for them applies to everybody.

So, I don`t care about them, nobody likes them. It`s a little...

HAYES: I love how like -- I love how America has suddenly like come
together -- like suddenly it was like everyone like danced to the song,
everyone like played this song at their parties, everyone was like this
song is a banger, and now we`re all like it is a weird national hangover
where it is like a tryst we are embarrassed about. Oh, we all hate that.
We never liked it.

WU: You can`t let the law depend on what those guys personality is
like. The fact that people don`t like them isn`t setting a good law for
all creators across America, especially in music.

HAYES: Does this jury finding have any precedential value? I mean, I
guess -- the point is that like are jury finding -- does this affect the
way the law gets
interrupted going forward?

WU: I don`t think so, but it might prompt other plaintiffs to try and
see if they can get a jury too, which is why I think the appeals court has
got to reverse it.

PERETZ: And it will start a good conversation on the music side of it
all as -- about can rhythm get the same due that melody does?

HAYES: Although, someone said if rhythm gets the same due, like Bo
Diddly is a billionaire. Like I saw that line, right, like...

PERETZ: That is the difficulty is in defining what is style and what
is direct imitation?

WU: You`re locking up too much, that`s my point, you know what I
mean? There`s like a lot of people trying to create stuff. They need
styles. If somebody owns everything, it`s like there`s no place to go for
the new guy. And that`s what we care about, not about these old rich guys.

HAYES: We care about the sort of generative possibility for folks.
And we care about -- we also care about -- I think this is a key point,
right, this world is so kind of bounded by whether people are going to
settle, are you going to get sued as opposed to things actually playing out
in court that what matters more from a precedential standpoint isn`t what a
court rules, it`s is someone going to come after you?

WU: Yeah, exactly, you know. And it`s like that`s $7.4 million --
$7.3 million looks pretty good.

HAYES: Tim Wu and Jeff Peretz, thank you both very much.

All right, that is All In for This Evening. The Rachel Maddow show
starts now. Good evening, Rachel.


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