updated 9/9/2004 1:39:37 PM ET 2004-09-09T17:39:37

Guests: Rikki Klieman, Jeanine Pirro, Werner Spitz, Charles Gasparino, Kenneth Trump, Lori Kehoe, Nancy Northup

DAN ABRAMS, MSNBC ANCHOR, THE ABRAMS REPORT: Coming up, prosecutors focus on the key piece of physical evidence they say helps prove that Scott Peterson killed his wife, a strand of hair. An FBI hair expert says that hair found in Scott Peterson‘s boat likely belonged to Laci and could not have come from Scott Peterson. But what exactly does a piece of hair prove?

Plus, Martha Stewart reportedly ready to start her prison sentence now. She apparently has to wait in line to get a cell? And Russia says it will take its war on terror outside its borders, while some in this country ask, could this kind of attack happen here? The program about justice starts now.

Hi, everyone. First up on the docket, the only piece of physical evidence in the Scott Peterson case front and center today—that hair found on a pair of Peterson‘s pliers in his boat. Prosecutors say DNA testing prove it‘s consistent with Laci‘s and they say it got there when Scott disposed of her body. In the preliminary hearing, Dr. Constance Fisher of the FBI testified about how she analyzed the hair and in conclusion, that it was consistent with Laci‘s but keep in mind, the DNA test performed could only determine to what maternal bloodline the hair belongs because there was no root on the hair. They could only perform what is known as mitochondrial DNA testing.

Let‘s go to MSNBC‘s Jennifer London outside the courthouse. Jennifer, is this one of those boring DNA 101 lessons in court today?

JENNIFER LONDON, MSNBC CORRESPONDENT: Well, Dan, it certainly felt like DNA 101, although the jury didn‘t seem bored I wouldn‘t say. They were taking notes perhaps because it is complicated testimony. Surprisingly, it did move along very, very fast. As you mentioned, Dan, they did testify today that the hair was consistent with hair taken from Laci Peterson‘s hairbrush and they were able to exclude Scott Peterson as being a donor of the hair.

Now in cross examination, two points were raised by the defense: one, Mark Geragos asking if they tested both of the hairs. Remember, there were two hairs that came out of the evidence envelope and at the crime lab, the FBI‘s crime lab, they only tested one hair. It‘s not clear why both weren‘t tested. The other point that came up under cross-examination, Mark Geragos asking if the lab was ever asked to test any of the pubic hair that was found on the duct tape near or on Laci‘s remains and the witnesses said the lab was never asked to do so.

So now Dan, let‘s switch gears. They finished up with DNA testing. As I mentioned, they moved along at a pretty quick pace, surprising everyone.  The prosecution bringing forth a witness, a gentleman named Chris Vansant (ph). He said that he was riding his mountain bike at the park near Laci Peterson‘s home on Christmas Eve, 2002, the day she disappeared.

Now he said that he did see a pregnant woman walking a dog. Now everyone‘s wondering why this may be a prosecution witness but it turns out that he says after he called in the tip to police, he saw a photo of Laci the next night on the news and determined that it was not in fact Laci Peterson. However, here is where it gets interesting Dan.

Under cross-examination, Mark Geragos pointed out that Detective Allen Grokini (ph) took the tip report that Chris called in and Allen Grokini‘s report said that they never showed a photo of Laci because the tipster, Chris, said he never saw her face. However, Chris said that‘s absolutely not true. He did see this woman‘s face. He saw her face straight on and that‘s how he was able to say it wasn‘t Laci Peterson. Dan, it also came out in court that the first time police showed Chris a photo of Laci was late July of this year after the trial had already started.

ABRAMS: Talk about obfuscating the issues. I mean it wasn‘t Laci. It wasn‘t Laci and yet they still investigated and yet we‘re spending all this time—well, you know, this proves that the police are sloppy and this and that. Jennifer London, thanks very much. We‘re going to get to that in a minute. But my take on this piece of hair—that piece of evidence, I think, is not that important. Everyone says the only piece of physical evidence. There are too many explanations for how Laci‘s hair could have ended up on his boat even though it appears to have been wrapped on the pliers. Of course prosecutors have to introduce it but it will not be the hair that broke Peterson‘s back so to speak.

Let‘s bring in our all-star legal team, Westchester County, New York district attorney and former New York state judge, Jeanine Pirro and famed criminal defense attorney Rikki Klieman, as well as medical examiner Dr.  Werner Spitz. All right. Rikki, let‘s deal with this issue first of the hair. Does the defense have to come up with a consistent theory? I mean on the one end they say, well, you know what, you can‘t even prove that it was Laci‘s hair. Who knows. Maybe Sharon Rocha was brushing her hair with Laci‘s brush and you took a piece of hair to compare it to that wasn‘t even hers.

On the other hand, they‘re saying well, yeah, yeah, it might have been Laci‘s and maybe she was in the boat. I mean do they have any obligation to have a theory that makes sense?

RIKKI KLIEMAN, CRIMINAL DEFENSE ATTORNEY: No, they don‘t have an obligation to have a theory that makes sense, but it‘s helpful if your theory makes sense. I think that to go with this and say well it might be Sharon Rocha‘s hair really is getting you way off the point. We know it‘s not just by looking at it, just by a visual examination. I think he‘s far better off by dealing with this as a kind of so what piece of evidence.  Yes, it‘s her hair. Yes, it‘s the only piece of evidence that links her perhaps to Scott Peterson to that boat, but so what? It‘s in an old pair of pliers. The pliers have been around for a long time. Her hair could have gotten in there in a thousand different ways and is it one hair or two?  That‘s exactly where he should go and no further.

ABRAMS: Jeanine, I mean is this hair - I know throughout this—every time I hear this, this is the only piece of physical evidence. Am I crazy to say I don‘t think as a piece of evidence is that big a deal?

JEANINE PIRRO, WESTCHESTER COUNTY NY DISTRICT ATTORNEY: Well I think that it is important Dan. There‘s no question that it is the only connection to Laci on that boat and it is real evidence and the mitochondrial DNA is certainly accepted in the scientific community. They are certain that it is Laci‘s hair but the issue is how did it get on the boat and it‘s the only thing that puts her on the boat. There is no other evidence. So of course the prosecution has to rely on it. It is significant but what does Geragos do, just as Rikki said. Geragos should ignore it, say it‘s not a big deal. But you have what, you have to look in your own toolbox and figure out how many people have hairs in the needle-nosed pliers wrapped around with indentations from the pliers. Something sinister happened with this hair and this pliers. Whether the prosecution will ever be able to say, I don‘t know.

ABRAMS: Yes. Dr. Spitz, bottom line, how definitively can they say they say without a root that this is Laci‘s hair?

DR. WERNER SPITZ, MEDICAL EXAMINER: They cannot. They can say that it is somebody from the same bloodline like the mother, the siblings, the maybe the brother of the mother, maybe anyone in that line, but they cannot say that it is Laci‘s hair.

ABRAMS: But can‘t they also look at things like color and length, et cetera to try and then say well, even if we can‘t just do it based on DNA, there are other factors?

SPITZ: Well, I hear that this is a fragment of the hair. This is not the entire length of the hair. And maybe the two pieces of hair that were received are really from one hair that broke in two.

ABRAMS: Well what about do you think, Dr. Spitz? I mean how big a deal do you think this is in the context of the case? Am I crazy saying I don‘t think it‘s that big a deal?

SPITZ: I don‘t think it is a great deal. I think they‘re making a mountain out of a mole hill but it is better than no evidence at all.

ABRAMS: I‘m not criticizing them for bringing it up. I think it‘s a completely legitimate issue to bring up. I just think, I just think they got to be careful. I‘m not saying that they‘ve been doing this but I hear a lot of these commentators out there saying this is the—you know, most important piece of evidence. This is what‘s going to make or break the case and I just don‘t see it happening.

All right. Let me go back to this other issue that Jennifer London just brought up, this other witness Rikki who says, initially, he saw a pregnant woman, thought it was Laci. Turns out he doesn‘t think it‘s Laci and now Mark Geragos is going after him, saying but aha, still the detectives didn‘t do this and did do this. I mean he has these prosecutors running in circles trying to defend their case.

KLIEMAN: Well, part of the problem, Dan, is that they do go running in circles to defend the case. All Mark Geragos has to do is bait them just a little bit, just put that worm on the hook and off they go. This is a case that at this point in time should really have been cut down at least by half if not by more. When I heard that it was going to go to end of September still on the side of the prosecution, I said you‘ve got to be kidding and the reason it‘s going that long is because the prosecution gets so scared of Mark Geragos attacking the integrity of their case in any way that they go to say anything you say, Mark, we‘ll show you why.

ABRAMS: Jeanine, are you laughing?

PIRRO: Yes, but you know what, at the same time, you‘ve got a jury that‘s sitting there analyzing this. They know what Geragos is doing and they know what the prosecution is doing. They are going to cut to the facts here and make no mistake. Geragos is changing his strategy somewhat. His cross-examinations are not as long. They‘re not as sarcastic. He‘s cutting to the point. Look, with this DNA expert today, he could have gone into the qualifications, done his own voir dire. He‘s passed all that. I think he has a sense that the jury is tired. So bottom line on this witness is, it wasn‘t Laci. Period, end of story. If Geragos wants to go on and talk about the cops, it doesn‘t matter.

ABRAMS: Why did they even call him though Jeanine? I mean they‘re calling him in essence to say - I know why - to say that the police investigated. They ran down leads, et cetera, but look what‘s happening when they do that.

PIRRO: Dan, can‘t you see that the prosecutors here are not that experienced and it pains me to say that, but they take every little bit of information or evidence or criticism and they try to turn it around. That‘s not how you try a case.

ABRAMS: Let me take a quick break here. Dr. Spitz, thanks. It‘s always great to have you on the program. Thanks a lot for coming on. Rikki and Jeanine are going to stick around, because we got more legal issues to discuss. Coming up, more problems for the prosecution today in the Peterson case.

And Martha Stewart reportedly ready to start her prison sentence now.  So what‘s the holdup? Apparently, the inn at the Federal correction center is full.

Plus, the terrorist attack on a Russian school turns attention to security in classrooms back here at home. We talk to the school safety expert about whether American schools are prepared. Your e-mails, abramsreport@msnbc.com, I‘ll respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS: We‘re back talking about Scott Peterson case. Now 15 weeks into the prosecution‘s seemingly troubled presentation. NBC‘s Mark Mullen takes a look back at where we are now.

(BEGIN VIDEOTAPE)

MARK MULLEN, MSNBC CORRESPONDENT (voice-over): Just two weeks into the case, a sign of bad things to come for the prosecution. Dismissed juror number five, Justin Falconer tells reporters he thought Scott Peterson was not guilty.

JUSTIN FALCONER, DISMISSED JUROR: I haven‘t seen anything that would make me believe that he committed this crime.

MULLEN: What happened? Before the trial started, the California attorney general had called this case a slam dunk.

DEAN JOHNSON, LEGAL ANALYST: No. This anything but a slam dunk. In fact, we‘re well into the prosecution‘s case almost to the prosecution‘s end game. The very end of their case in chief and there are still people who entertain, probably most people entertain a reasonable doubt.

MULLEN: Observers agree defense lawyer Mark Geragos has been able to make big points for the defense using the prosecution‘s witnesses.

JOHNSON: The best moment so far for the defense was the dramatic moment when Mark Geragos brought out the detective Grokini, the investigating officer had actually manipulated, had deleted important points from his own report.

MULLEN: Just last week, prosecutors called to the stand a tracker who testified that her dog had picked up Laci‘s scent, where Scott admitted he had gone fishing and near where the bodies were found. But when Geragos got to her, he had a videotape of the dog‘s training and he got the prosecution‘s witness to admit that her dog had flunked its training session.

BETH KARAS, COURT TV REPORTER: It‘s not like the prosecution wasn‘t scoring points but the defense was also scoring points.

MULLEN: Who scored the most points for the prosecution? Probably Amber Frey, Peterson‘s former mistress.

JOHNSON: The jury identified very strongly with her and I was not surprised at all that Mark Geragos soft pedaled the cross-examination.

MULLEN (on-camera): Prosecutors also played secretly recorded phone conversations of Scott Peterson to the jury which they say uncovered lies and inconsistencies in his stories.

(voice-over): But in the end after more than 3,000 recorded

conversations,

SCOTT PETERSON: That sounds pretty sinister, you‘re right.

AMBER FREY: Pretty sinister?

PETERSON: But it is not the case.

MULLEN: Peterson never admitted any wrongdoing on tape.

KARAS: Anything could happen. Maybe the prosecution is keeping some strong stuff for the end.

MULLEN: If so, the strong stuff will need to come soon. Prosecutors are expected to rest their case perhaps in two weeks. After that, Mark Geragos goes on the offensive with his defense. Mark Mullen, NBC news, Los Angeles.

(END VIDEOTAPE)

ABRAMS: So the prosecution‘s seemingly disjointed case continued today when in the middle of Dr. Constance Fisher‘s complicated DNA tutorial, the prosecution had her step down and moved onto to a different witness, a fraud investigator for the online auction site eBay, took the stand for about 20 minutes. His testimony showed Peterson was a registered and active user of the site and confirmed that Laci‘s watch was up for sale in the month after she went missing. So I ask our legal team once again, Jeanine Pirro, that sort of stuff, I think, I think it‘s very helpful to the prosecution, the idea that he‘s out there, hocking her goods.

PIRRO: Dan, he‘s not just hocking her goods, he‘s selling her car.

He‘s looking to sell the house. He‘s using the nursery as his storage area.  He‘s not looking for her when strangers are frantically looking for her. I mean it‘s these pieces of evidence that will come together because this jury has already heard a lot of evidence. Now, this is a summation case.

ABRAMS: All right. Rikki, quickly if you were going to—if the prosecutor said Rikki Klieman, come in, help, help, help, what do we do? If you were going to advise him in 30 seconds, what would you say?

KLIEMAN: Pare it down, make it simple, do it all on hard evidence.  Let‘s get in the medical examiner, science about the tides. We want to know how this boat got there, where the body showed up, gestation of Connor, all hard science, close it up with the M.E.

ABRAMS: Jeanine?

PIRRO: Yeah. I think close it up with the M.E. and but also at the same time, Dan, this is a summation case. The case was decided at jury selection. We know Justin Falconer and how opinionated he is. It will be decided ultimately on summation and it‘s up to the prosecution to make their point, make it concise, make it real. This is not a defense. It‘s an offense game.

ABRAMS: They got to make it make sense. I mean they got to say.

PIRRO: They can. It‘s all there Dan.

ABRAMS: The got to lay it out, December 6, this happened, December 7th, 8th, 9th. Think about it, ladies and gentlemen. Think about that timing and then talk about what he was doing in the weeks selling things, putting.

PIRRO: He‘s confronted with the fact that he‘s married on December 8.  December 9, he goes and buys a boat. He downloads a tidal chart. This is all very clear.

ABRAMS: All right. We will see, we will see if they listen, you know.  I don‘t know. They give me dirty looks when I go to the courthouse. So I don‘t think that they‘re listening to me. Jeanine Pirro and Rikki Klieman, thanks very much for joining us, appreciate it.

Coming up, Martha Stewart could put off her prison sentence until she appeals her conviction but she‘s reportedly decided to get it over with.  Only problem, there‘s no room at the inn.

Plus, after hundreds of school children are slaughtered in Russia, the country says it may take its war on terror abroad and is that sort of school attack a concern back here at home? Your e-mails, abramsreport@msnbc.com. Please include your name and where you‘re writing from. I respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS: Martha Stewart may be ready to go do prison but is prison ready for her? There have been reports, one today on page of the “New York Post” claiming that Martha Stewart wants to begin serving her five-month term but the prison she‘s expected to report to, the Danbury minimum security prison in Connecticut has the no vacancy sign up. The U.S. Bureau of Prisons confirms that, like many other Federal prisons, Danbury is packed.

Remember, Judge Miriam Goldman Cedarbaum who sentenced Stewart back in July, allowed her to put off serving the sentence until the appeals are finished and on the day of her sentencing, Stewart vowed to appeal the conviction. That‘s going to take a while. Her attorneys haven‘t even filed their appeals briefs yet. That‘s expected to happen next week.

My take, she should get it over with. Her chances of winning the appeal are so remote and I think she would want to move on with her life for the sake of her company and herself rather than have this hanging over her head. Joining me now is senior writer for “Newsweek” magazine Charles Gasparino, who‘s been following the case from the beginning.

So Charlie, what‘s the deal here?

CHARLES GASPARINO, “NEWSWEEK”: Well, you know the country club is filled up I guess. Listen, I think this is a great move for her. One of the things that Martha Stewart Living is a company that is built on Martha Stewart the brand. If she‘s out of pocket (ph) for a long time or if there‘s a cloud hanging over Martha Stewart for a long time, that brand is going to suffer and if you look at the financials they‘re been suffering a lot. So as soon as she get this jail thing over, the better.

ABRAMS: Are you getting the sense that she‘s going to make this decision based on business? We‘re not talking about a civil suit here.  We‘re talking about serving criminal time. Do you think she‘s doing to do it based on what‘s best for her company?

GASPARINO: Of course. I mean that‘s what Martha Stewart is. I mean I think - listen my opinion of Martha Stewart is everything comes down to dollars and cents. She made the trade that was in question because she essentially wanted to save a few thousand dollars. The minute she got out of the courtroom, she was out there telling people to buy her stuff, buy her stock, I mean, this woman is a businesswoman through and through and I think yeah, she‘s making a business decision.

ABRAMS: Does her team do you think accept the fact that they will likely lose this appeal?

GASPARINO: Well, I think that‘s what this is all about. I mean there‘s no way she‘s going to win the appeal. The evidence was cut and dried. Most people can‘t believe that they actually had to sit through the court that long because if you were there, you knew that she was guilty from the beginning and what you do is just basically decimate the stock price on her company. So I think at this point, Martha‘s probably saying to herself, I have to get this thing over with if I want this company to survive.

ABRAMS: But I mean apart from the fact that as you heard me in my take, I mean I clearly agree with you that their appeals chances are remote. (UNINTELLIGIBLE) some arguments to make, but they‘re going to lose.  Has that been accepted? Is that notion understood and agreed to as far as you know by Martha Stewart and her defense team?

GASPARINO: Listen. Her defense team will never publicly say -

ABRAMS: No, I know they won‘t publicly.

GASPARINO: I mean listen, I don‘t know what they‘re thinking. Bob Morvillo is a very - he‘s not exactly telling the press this stuff. He doesn‘t talk to the press very much as a matter of fact. But you‘d have to be an idiot to think that she can win this case and Bob is not an idiot.

ABRAMS: He‘s also got a great appeals team there too, Walter Dellinger.

GASPARINO: And he‘s got to be telling them this is a long shot.

ABRAMS: All right, Charlie Gasparino. Good to see you again, thanks.

GASPARINO: OK.

ABRAMS: Coming up, what our schools might do to avoid a terror attack hike the one that happened in Russia. And what Russia says it might have to do to prevent other attacks. They say they‘re going to take the war on terror abroad.

And the battle over abortion could be headed back to the Supreme Court after a third Federal judge ruled that the so-called partial birth abortion ban is unconstitutional.

(COMMERCIAL BREAK)         

(NEWSBREAK)

ABRAMS:  We‘re back.  It hardly seems surprising that Russia seems desperate to take on the terror leaders behind the hostage-taking that killed hundreds last week at a school in a small town of Beslan.  A top Russian general says their forces will attack terrorists in any region of the world and a $10 million reward has been offered for information leading to the arrests of these two men: Chechnyan terror leader Shamil Basayev, and former Chechnyan President Aslan Maskhadov.  Moscow says he‘s a terrorist, too. 

The Beslan terrorists timed their attack for the first day of school and for many American parents of kids going back to school, the question some are asking is could it happen here?  We‘re going to get to that and Russia‘s widening war on terror. 

But first, voices from the Beslan school gym where the hostages were held and where hundreds of them died.  Two young brothers described the unthinkable from the first shots to the chaos to the slaughter and the final moments. 

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE (through translator):  I was with my friends from school (UNINTELLIGIBLE) when I saw the cars with Arabs who got out screaming, Allah Ackbar!, and shooting in the sky. 

UNIDENTIFIED MALE (through translator):  I thought that this was some kind of game.  They screamed, get into the building, quick! 

UNIDENTIFIED MALE (through translator):  I did not want to run away alone without my brother.  He is my brother.  I could not leave him alone. 

UNIDENTIFIED MALE (through translator):  They gave us some water the first day, just in our palm, and only once let us go to the bathroom.  They began to make bombs, stretched up from one wall to the other, on the rope across and around the walls.

UNIDENTIFIED MALE (through translator):  I am very angry at the terrorists because they jeered us, did not give us water.  Drink your urine, they said.  They killed people in front of us.  It‘s a scary—really. 

UNIDENTIFIED MALE (through translator):  They took men out to the corridor and shot them there, killed them.  And suddenly, a big explosion happened.  I was blown back and then again, I managed somehow to get on the window and jumped out.  I hurt myself.

UNIDENTIFIED MALE (through translator):  After this explosion, the windows were broken.  I jumped and got out.  I thought they would shoot at me.  I ran.  I saw one who wants to shoot at me.  I hid behind the car.  He thought he had killed me and looked over the other side to shoot others.  All five of my classmates died.  I‘m so sorry about it.  My teacher was dead, too. 

UNIDENTIFIED MALE (through translator):  I am lucky.  I could have died too, September 3 is my birthday.  I feel like I was born again. 

(END VIDEOTAPE)

ABRAMS:  That‘s the firsthand look inside that terror attack in that Russian school.  So the other question we‘re going to ask, is a repeat possible here?  And what about Russia saying it‘s going to take the fight to the terrorists wherever they are?  My take?  How can we blame them?  Plenty of voices who say Russia‘s brutal war in Chechnya is at the bloody roots of the massacre and the Russians can be faulted for some of what they have done there.  But terror is terror. 

Can‘t be any excuse whatsoever for people willing, in fact, eager to commit the sort of horrendous atrocities we saw in that school.  They should hunt down these savages anywhere in the world.  The question though is could that lead to conflict with the U.S. war on terror and also how about the safety of the schools here? 

Let‘s go to our guests, Kenneth Trump, president of National School of Security Service, a consulting group; and Dan Goure, an NBC News terrorism analyst, vice president of the Lexington Group and a former Defense Department official. 

All right.  Dan, first let‘s take on the issue of whether this is going to be an international problem.  And if the Russians are saying we‘re going to go abroad if we need to to find these people, I mean, is that a potential problem or is that basically just saying, look, we‘re going to do what the Americans are doing?

DAN GOURE, NBC NEWS TERRORISM ANALYST:  Well, look, they‘ve got to.  As you say, there‘s no choice because you can‘t play defense and win.  You cannot protect every school in Russia.  You‘ve had two planes knocked out of the sky by terrorists, a bombing in Moscow and now this.  It basically says that the Russians cannot protect the homeland.  The generals know this.  They‘ve got to go on offense.

Fortunately, their problem is not as global as ours, at least at the moment.  It‘s restricted to Chechnya and the environs.  So they have a difficult time but nowhere here the challenge we have with Afghanistan and Western Pakistan and parts of Iraq and the like. 

ABRAMS:  So there‘s no real risk of the “Russians‘ global war on terror,” quote-unquote, conflicting with the “U.S. war on terror.” I mean, you can say anything‘s possible, but it‘s not likely that that‘s going to be a problem. 

GOURE:  Not per se, although the problem to some extent is that the Russians have played both sides of this issue.  They have supported independence movements in parts of the Caucuses against legitimate governments like that of Georgia.  And so to a certain extent, they‘ve beginning to reap what they have sown after the collapse of the Soviet Union. 

And so we have some interest in supporting them when it comes to terrorists like the Chechens, but not necessarily the same when they want to destabilize what are otherwise stable parts of the Caucuses and other areas where we do have our own interests. 

ABRAMS:  Kenneth Trump, how do you protect a school?  I mean, you know, yes, what, are you going to get two security guards out front who are really going to make any kind of difference? 

KENNETH TRUMP, SCHOOL SECURITY CONSULTANT:  Well, we certainly don‘t have any perfect security from the White House to the schoolhouse that gives 100 percent guarantee.  But let‘s take a look at the fact that we know from all of the terrorist incidents to date there‘s advance planning, there‘s casing, extensive casing of their potential targets.

In this case, in Russia, they stored weapons, according to reports, far in advance.  So we‘ve got to talk about at least some basic measures of access control to your buildings, training your staff to have a heightened awareness of knowing what‘s going on in and around them, and to know what to do in emergency situation if there‘s one that occurs that can‘t be prevented. 

ABRAMS:  According to the National School Safety and Security Services, some of the things that can be done: train teachers and support staff; refine security plans; test school crisis plans; encourage a heightened awareness for suspicious activity; pay attention to the perimeter security; reduce doors accessible to the outside; secure access to utilities. 

I mean, I‘ve got to think, though, Mr.  Trump, when it comes to schools, there has got to be a balance because you‘ve got a lot of kids who are going to be getting real scared if there‘s the sense all the time that the school could at any moment become a battleground. 

TRUMP:  Well, the whole idea is “aware and prepared but not scared.” We also run fire drills in our schools across the country and we don‘t have kids who come to school afraid that the building is going to be burnt down.  It does require balance.  We want a warm, welcoming climate.  But we also have to take some basic security measures. 

You and I could go for a fast food hamburger here and we go through a limited number of open doors.  When we walk into restaurants somebody says, hello, may I help you?  And you have a camera in the drive-through window.  And for years we‘ve protected hamburger better than we have our kids. 

So we need some basic measures and it doesn‘t take a fortress mentality.  To the contrary, what it takes is a heightened awareness and a staff that‘s properly trained that knows what to do to try to prevent an incident and to be prepared to manage something as best you possibly can, which just may be organized chaos if something occurs. 

ABRAMS:  When you‘re speaking to schools or school administrators, Mr.  Trump, do you tell them that an attack on a U.S. school, a terror attack on a U.S. school is a real possibility?

TRUMP:  Well, we try to put it in context and not be alarmist, but we have to say that it is also foreseeable.  We know that schools are soft targets.  A survey that we did of the nation‘s school police officers for three years in a row has shown that there are vulnerability concerns.  We know that it would fit the purpose of terrorism.  The Russian incident really isn‘t a surprise to those of us in the field.  At the same time, nobody is trying to be alarmist. 

However, what we don‘t want to the do is suffer from ostrich syndrome.  Fear is best managed, Dan, by three things: education, communication, and preparation.  Ostrich syndrome isn‘t one of those.  And we don‘t want to be set sitting here two years from now down the road, saying why didn‘t somebody talk about this on the front end?

ABRAMS:  Yes—no, look, and I think your point about the fire drill is well taken.  I think that you can have drills, you can have systems in place for emergencies, you know, without creating panic.   Kenneth Trump and Dan Goure, thanks very much. 

TRUMP:  Thanks, Dan.

ABRAMS:  Coming up, President Bush signed the so-called partial birth abortion ban last year.  But today, a third federal judge has declared it unconstitutional, setting up a possible showdown at the U.S. Supreme Court. 

The war in Iraq reaches a grim milestone: American military death toll passes 1,000.  Time to remember the men and women who have given their lives, something I don‘t think we do enough, “My Closing Argument.” 

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  Today marks the third time since June that a federal district court judge has ruled that what the critics of abortion called the partial birth abortion ban is unconstitutional.  Why, because the courts say there‘s no exception when a mother‘s health is at risk.  Judge Richard Kopf wrote: “According to responsible medical opinion, there are times when the banned procedure is medically necessary to preserve the health of a woman.”

Judges from New York and San Francisco delivered similar rulings earlier this summer.  One noting that the ban poses an undue burden on a woman‘s right to choose.  Signed by President Bush in 2003, the ban was never enforced because of the constitutional problems.  It included all late-term or so-called partial birth abortions, but, quote: “does not apply to a partial birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, illness, or injury, including, a life-endangering physical condition caused by the pregnancy itself.”

My take.  The U.S. Supreme Court has made it pretty clear that if this sort of law does not provide an exception for the health of the woman, not just life or death, but the health, it‘s not constitutional and they say it‘s undue burden on a woman‘s right to choose. 

Joining me now is Nancy Northup, president of the Center for Reproductive Rights, the group that filed the lawsuit on behalf of the Nebraska doctor that ended in today‘s ruling, and Lori Kehoe, the senior congressional liaison for the National Right to Life. 

Ms. Kehoe, let me start with you.  Why am I not right about this? 

Hasn‘t the Supreme Court been pretty clear on this issue?

LORI KEHOE, NATIONAL RIGHT TO LIFE:  Five justices on the Supreme Court made it clear how they felt about it.  But it‘s well-established and it has been well-established that partial birth abortion is performed on healthy babies and healthy mothers.  The Supreme Court unfortunately was divided 5-4 and we did lose 5-4. 

ABRAMS:  But why can‘t they just write the law?  I mean, if they‘re so intent on getting this law passed, why not just write it in a way that also protects the health of the mother? 

KEHOE:  Well, because we know that the health of the mother is an exception that makes the rule, because with the health exception, the way that the court in Doe v. Bolton wrote is that a health exception includes everything, including the psychological health of the mother.  In other words, the mother could say, I‘m really bummed out today, I want to have an abortion, and she can. 

ABRAMS:  You can write laws more specifically than that.  We do it every day.

KEHOE:  Unfortunately, we can‘t.  Unfortunately, we can‘t, because of the Doe v. Bolton ruling by the U.S. Supreme Court, we cannot define health any differently unfortunately according to the Supreme Court. 

So—let me clarify, according to five justices on the Supreme Court.  And I think that‘s what this decision and all of the decisions like this really come down to, is who is going to be sitting on the Supreme Court?

ABRAMS:  Yes.  But, Ms. Northup, I mean, it seems to me, I mean, I‘ll let you discuss the policy in a moment, but if even Ms. Kehoe‘s conceding that according to the U.S. Supreme Court‘s current ruling this law is unconstitutional, you‘ve got to wonder why they passed it and sort of wasted everyone‘s time. 

NANCY NORTHUP, CENTER FOR REPRODUCTIVE RIGHTS:  Well, that‘s right.  The point is that Congress knew and now three courts have said Congress didn‘t have any good evidence in passing this law that they pretended they were protecting women‘s health. 

And in fact they were doing the opposite.  They were hurting it.  And it really shows that what‘s behind this law is what groups like Lori‘s group want to do, which is oppose all abortions.  But this law would not allow a health exception and it has been found again and again that that is unconstitutional. 

ABRAMS:  What do you make of her point though that you can‘t create a law with a health exception because once you start saying health, there‘s going to be no way, according to the Supreme Court and also practically to define it? 

NORTHUP:  No.  That‘s not right.  What the Supreme Court has said is that you have to allow an exception that the doctor believes is important to save the woman‘s health.  We can trust doctors and women to make these decisions.  It‘s important that medical care be left to doctors and their patients and not have Congress stepping in with really bad medicine that‘s not only—is it unconstitutional, it‘s bad medicine, it‘s wrong. 

ABRAMS:  Go ahead, Ms. Kehoe.

KEHOE:  Surely, Nancy, you‘ve read the Doe v. Bolton decision where the court said that the health must include anything, psychological, familial, economic, the woman‘s age, anything relevant to the well-being of the patient, surely you‘ve read that decision.  So we cannot right now, at least according to these five justices, do anything different from that. 

So that‘s reality.  But I think we need to look at another of the district court‘s decisions.  Look what Judge Casey said.  He said that unfortunately the Supreme Court—or those five justices are tying his hands.  So he ruled the way that he had to.  But he said that the testimony at trial and before Congress established that this is a—and I quote, “a gruesome, barbaric, brutal, uncivilized medical procedure and it causes these little ones severe pain”—“causes them,” I quote again, “severe pain.” 

We are talking about a barbaric procedure that you don‘t need a degree to understand.  We‘re talking about a procedure where an unborn child—well, was unborn child, is now four-fifths of the way born, where an abortionist delivers that baby four-fifths of the way, hands clasping and unclasping, feet kicking.

ABRAMS:  All right, why don‘t you respond to that issue?

KEHOE:  . where they stab the baby in the back of the head.

NORTHUP:  This is obviously a very emotional way in which this is presented.  When it has been presented in this political context which is what Congress has done, it‘s really there to rev up those people who want to see all abortions made illegal. 

ABRAMS:  But it‘s pretty gruesome, right?  I mean, these late-term abortions are gruesome? 

NORTHUP:  The court—outside of the political spectrum, in the courts where it is decided on facts and law, again and again, those judges have found that doctors are using a procedure that is safest for the woman and that her future health care relies on the doctor to be able to make that best judgment.  And it‘s been found again and again and again, the Supreme Court found it, Congress ignored it, we‘re back again with three judges saying it.  It‘s time to move on. 

(CROSSTALK)

ABRAMS:  Ms. Kehoe, 10 seconds, final word. 

KEHOE:  OK.  Yes.  Let‘s say that, yes.  Five justices who were un-elected said that.  Two-thirds of Congress.

ABRAMS:  All right.  But you know what?  You can‘t—that to me is so disrespectful to the U.S. Supreme Court to say “five justices” this and this and that. 

KEHOE:  Two-thirds of Congress elected.

ABRAMS:  The U.S. Supreme Court rulings are 5-4. 

KEHOE:  . said that this is barbaric.

ABRAMS:  Even when I disagree with it, the U.S. Supreme Court decisions, I don‘t start going and saying, oh five, only five of them are saying this or this or that. 

KEHOE:  But you know what, no, we have to say that.

ABRAMS:  I have more respect for the court than that. 

KEHOE:  Listen, 70 percent of the American public agree with President Bush... 

ABRAMS:  But I‘m not challenging that.

KEHOE:  . that partial birth abortions should be banned.

ABRAMS:  I‘m not talking about that.  I‘m talking about a disrespect for the U.S. Supreme Court that I think is unfortunate. 

KEHOE:  Well, I‘m sure that you would agree that the Supreme Court has made some decisions that we‘re all pretty ashamed of. 

ABRAMS:  No question, no question.  But I don‘t sit there and say, but it was only 5-4 --  anyway, but I hear you, I hear you, I hear you. 

KEHOE:  Well, that‘s relevant—no, that‘s really relative because we have a presidential election coming up.

ABRAMS:  You‘re right.  There‘s no question that it could change, no question. 

KEHOE:  . expect that it will because John Kerry has voted every chance he got to support partial birth abortions. 

ABRAMS:  I think there‘s no question that the election—this coming election—as to whether John Kerry or George Bush is elected, there‘s no question, Ms. Kehoe is absolutely right that it will have a big impact on cases like this. 

Nancy Northup and Lori Kehoe, thanks so much, I appreciate it. 

NORTHUP:  Thank you.

KEHOE:  Thank you.

ABRAMS:  Coming up, Kobe Bryant‘s accuser may be pulling out of the criminal case against him, but someone still has to pay for it: taxpayers.  Is that fair?  That‘s one of your questions and e-mails coming up. 

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”: American military deaths in Iraq passing 1,000 this week.  It struck me that our troops‘ deaths in Iraq sometimes hardly even make news now.  A couple shot in a park lead to a far bigger headline than two soldiers guarding a military installation or who die from a roadside bomb. 

Yes, it is war and people die in wars but that doesn‘t mean that they should be ignored for any political or any other reason. 

Here‘s NBC‘s Richard Engel.

(BEGIN VIDEOTAPE)

RICHARD ENGEL, NBC NEWS CORRESPONDENT (voice-over):  In Baghdad, American soldiers battle a Shiite uprising.  Urban war.  In Fallujah last night, an air war.  Marines flattening a factory allegedly used by insurgents.  Today it is still smoldering.  And in Ramadi, new video of a roadside bombing last weekend.  No one was killed in that attack but so many others are deadly. 

On average, about two Americans have been killed every day since the war began.  Soldiers such as Private First Class James David Parker from Bryan, Texas; and Specialist Gabriel Tramino (ph) Palacios from North Quincy, Massachusetts.  They died together in a mortar attack in January. 

The same month for Captain Kimberly Hampton from Easley, South Carolina, high school president and captain of the tennis teem was shot down in a helicopter near Fallujah. 

All year, there have been memorial services here in Iraq.  This one for specialist Isaac Campoy and Sergeant Michael Barrera, killed by a roadside bomb. 

UNIDENTIFIED MALE:  We all know we aren‘t invincible, but when something like this happens, it completely takes you—you know, it catches you off guard.  Two good soldiers. 

ENGEL (on camera):  The average age of the Americans killed in Iraq?  26.  It is somewhat older than people might expect.  It is because of all the reservists serving here. 

Richard Engel, NBC News, Baghdad. 

(END VIDEOTAPE)

ABRAMS:  Here at MSNBC we still have up our “America‘s Bravest Wall” honoring all of the men and women serving in Iraq.  Most of us walk by that wall every day and think about them. 

I‘ve had my say, now it is time for “Your Rebuttal.”  The attorneys for the alleged victim in the Kobe Bryant case on the program last night explaining why the woman dropped out of the criminal case but continuing to pursue Bryant in civil court. 

Many of you have questions.  Caroline Cassagnol in Santa Fe, New Mexico asks: “If the victim‘s distress over her lack of privacy was such that the criminal case was dismissed, why would she initiate her civil suit?  Doesn‘t a civil venue afford her less protection than the criminal arena did?”

In terms of privacy, yes, it does.  The burden of proof is lower.  I think everyone recognizes it is still going to settle. 

Bill in Philadelphia asks: “Who pays for the case?  Is it really fair that the accuser can just drop out and stick us with the bill?”

Well, Bill, since you are not from Colorado, you are not footing the bill.  But it is a fair question. 

And Virginia Rago: “I understand that the alleged victim in Kobe case collected money from the Colorado victim‘s fund.  Now that the case is dropped because she refuses to testify and she is not a victim in the criminal system, does she have to return the money?”

No, she does not. 

That wraps up our program for today.  We‘ll take more of your e-mail tomorrow.  Remember, e-mails, abramsreport, one word, @msnbc.com.  Please include your name and where you‘re writing from.  We go through them at the end of the show. 

Coming up next, “HARDBALL WITH CHRIS MATTHEWS.”  And tomorrow, I don‘t usually tease when I‘m on the “TODAY” show the next day, I‘m on.  Tomorrow I‘m going to be telling a very personal story there.  So that‘s tomorrow morning on the “TODAY SHOW,”  7:30, I think, is the time that I‘m on.  So watch and I‘ll talk about it tomorrow night. 

Thanks for watching.

END   

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