updated 9/29/2004 12:04:42 PM ET 2004-09-29T16:04:42

Guests: Mercedes Colwin, Joe Tacopina, Lisa Novak, David Margolick, Jeffrey Addicott, Ken Allard

(BEGIN VIDEO CLIP)

DAN ABRAMS, HOST:  Coming up, Scott Peterson‘s lawyers have the lead detective lay out what they didn‘t do or didn‘t find in the investigation into Laci Peterson‘s death. 

And jurors hear how one of Peterson‘s girlfriends discovered he was married, watching Laci give Scott a big, fat kiss at his college graduation. 

Plus, what really happened behind the scenes at the U.S. Supreme Court when they ended the 2000 election legal battle?  Critics have long said it was political.  Well, now one magazine says that‘s true, and they have the interview to prove it. 

And U.S. troops could soon be sentenced to a year in prison and get a dishonorable discharge if they visit a prostitute, even in countries where it‘s legal.  Is that really the right call right now?

The program about justice starts now. 

(END VIDEO CLIP)

ABRAMS:  Hi, everyone.  First up on the docket, an earthquake rattles the Scott Peterson trial, literally.  Jurors felt the tremors that led to an early recess this morning, but not before the lead detective faced a third day of cross-examination. 

Craig Grogan, talking about the investigation, possible theories the Modesto P.D. came up with and dismissed and how Peterson might have murdered his wife without leaving a trail. 

Let‘s get the latest as to what happens from the courthouse.  Our friend Edie Lambert from NBC affiliate KCRA inside the courtroom. 

So Edie, what happened?

EDIE LAMBERT, KCRA CORRESPONDENT:  Well, as you mentioned, Dan, the day did start out with a jolt.  The jury felt that quake about 180 miles south of here, and that prompted the judge to call for an early recess. 

But aside from that, it has been the detective Craig Grogan back on the stand for a sixth day of questioning.  The defense once again going step-by-step challenging every bit of evidence. 

In an early theme today, Modesto police theories that went nowhere.  One of the more interesting of those is the theory that Scott had actually poisoned his wife. 

One of the reasons they went to the theory is, as you know, they were not finding forensic evidence in the home.  They even tested a mortar and pestle that they took from the home during a search warrant, and that mortar and pestle tested negative for controlled substances. 

You may recall the toxicology reports from Laci‘s body showed only caffeine. 

Another theory, that Scott Peterson tied his boat up to a buoy to dump Laci‘s body, possibly to stabilize the boat.  They compared red paint that was scraped into Scott‘s boat with paint on one of the buoys.  It was not a match. 

And the defense suggested the red paint on Scott‘s boat actually came from a collision with Modesto police equipment. 

The defense brought up a medical examiner who‘s an expert on how bodies decompose in the San Francisco Bay.  He said the bodies can travel for miles.  That counters the prosecutor‘s theory that Laci‘s remains essentially stayed in one place until they broke free during a storm and moved toward shore. 

Now of course, as you mentioned, today‘s testimony comes on the heels of some real bombshells we heard yesterday, the defense talking about two more affairs that Scott Peterson had in addition to his affair with Frey. 

One of those cases, we have a photograph to show you.  This is what the defense attorneys actually showed the jury as the day that the other woman found out Scott was actually married. 

She watched Laci walk up to her husband, put a lei around his neck and give him a big kiss and that‘s when she figured out, “Hey, this guy has not been straight with me.”

The defense apparently tried to show that Scott did not kill his wife because of Amber Frey.  He‘d had other affairs in the past and their marriage had lasted through those. 

Also yesterday, another theory on who possibly could have killed Laci, and that‘s the case of mistaken identity.  There was another woman in the neighborhood with dark hair.  She walked a dog that looked like the Peterson‘s dog.  In fact, it was named McKenzie, the same name. 

And she was a district attorney who was prosecuting a case in which the defendant had made threats against her.  And she was fearful enough that she called this into Modesto police. 

So the defense in this case suggesting that this guy, not happy with the deputy D.A., came to the same neighborhood, targeted Laci by accident. 

Now, Dan, you expressed some skepticism that prosecutors would wrap up the case this weekend.  You‘re right.  The judge said they probably won‘t.  This will probably go into next week. 

But he did tell the jury that this case could be in their hands by the end of the October. 

Back to you.

ABRAMS:  End of October.  All right.  Edie, stick around. 

My take: so what?  The defense is hoping that jurors get lost in all the minutia of what the police might have done, could have done, rather than focusing on what they did do and did fine.  It‘s a classic defense strategy. 

Let‘s bring in our legal team, criminal defense attorneys Mercedes Colwin and Joe Tacopina.  And in Redwood City, former San Mateo County prosecutor Lisa Novak.

Let me first deal with this issue of the—this prosecutor who calls in early on in the investigation and says, “Look, I just want to make sure that, you know, that this doesn‘t relate to me.” 

Let me give you a quick profile, No. 2 here, of what this prosecutor looked like.  Thirty-five-year-old white female, 5‘1”, around the same height as Laci, 140 pounds, brown shoulder-length hair and brown eyes. 

OK.  Lived in Peterson‘s neighborhood.  Pregnant and walked her dog back in October 2002 in the Petersons‘ neighborhood.  Had a golden retriever named McKenzie.

A lot of similarities, but you know what, Lisa Novak?  It seems to me, OK, so there was someone else who said, “You know what?  I want to make sure it wasn‘t related to me,” and the police ruled it out. 

So they didn‘t, you know, meet with everyone person they needed to.  Is that really a big deal?

LISA NOVAK, FORMER SAN MATEO COUNTY PROSECUTOR:  You know, it‘s something that the defense throws in because what the defense needs to do is establish reasonable doubt any way that they can.

What‘s interesting is that the deputy district attorney physically was similar in appearance to Laci Peterson, but she had her baby in October, two months before Laci disappeared. 

And the threats came from the male who she was prosecuting, whom presumably went to jail, and his female companion.  The female companion is the one who actually accosted the deputy attorney in the courthouse.  And this was several months before Laci disappeared. 

And then there was never any sighting of these people in the deputy district attorney‘s neighborhood. 

ABRAMS:  Joe...

NOVAK:  So it‘s a red herring. 

ABRAMS:  Joe Tacopina, the most important thing is there‘s no evidence that somehow that was connected to them.  I mean it‘s a nice sort of speculative theory, but there‘s no evidence to suggest it‘s linked up here. 

JOE TACOPINA, CRIMINAL DEFENSE ATTORNEY:  You‘re right, Dan.  But—so why can‘t the defense engage in nice sort of speculative theories?  I mean, that‘s what this whole...

ABRAMS:  They can. 

TACOPINA:  That‘s what this whole trial has been about.  I mean the prosecution‘s case from the while episode regarding, you know, the meringue pie and the episode regarding how it was that Scott got the body to the marina in the box and they did that whole... 

ABRAMS:  Did the prosecutors have evidence? 

MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY:  You know what, Dan?

ABRAMS:  Hang on. 

TACOPINA:  And the defense, Dan, did not...

COLWIN:  The bottom line...

ABRAMS:  Hang on, Mercedes.  Wait. 

TACOPINA:  The defense did not throw this in.  This was in a police report.  I mean, the dog was named the same. 

Look, I don‘t think Geragos is saying this is what happened, but it‘s certainly something that needed to be looked into.  It wasn‘t—you say it was thoroughly investigated.  I mean, whether it was or wasn‘t...

ABRAMS:  I didn‘t say it was thoroughly investigated...

TACOPINA:  OK.

ABRAMS:  ... because they actually should have met with this lawyer. 

TACOPINA:  Absolutely.  They should have had...

ABRAMS:  Yes, they should have.  Yes, they should have.  OK.

TACOPINA:  ... the ADA.  They should have done all these things.  That would have sealed the answer.  And, you know, now the jurors have to really, I guess, be left guessing at this point, Dan. 

ABRAMS:  But the problem is that, Mercedes, this doesn‘t deal with the evidence they do have.  I mean, it‘s constantly the evidence, oh, they might have, could have.  I mean, it doesn‘t sit with the evidence they do have. 

COLWIN:  But I think you‘re absolutely right.  This is what defense attorneys do.  They‘re going to take it and dismantle it...

ABRAMS:  Isn‘t that sad?

COLWIN:  ... and do a post mortem and say this doesn‘t work.  This theory doesn‘t fly.

And look.  Going back to this prosecutor.  I mean, he‘s a—she‘s a very educated woman.  Obviously, she saw the similarities that brought chills to her spine and say, “Wait a minute.  This may have been the person that I actually feared, that I prosecuted and threatened my life.  I‘m going to go forward and say.”

I say this is a death penalty case.  I don‘t think we can forget that.  They are—they‘re going to render a verdict and to render one is going to result in the death penalty. 

ABRAMS:  Good.  And I think that‘s a separate phase of the trial. 

TACOPINA:  What does that have to do with the evidence?

ABRAMS:  That‘s a separate phase. 

COLWIN:  But Dan, the bottom line is this.  If it is such a serious case, double murder charges that are pending, then you have to unearth, especially one like this, which is very critical. 

TACOPINA:  Then why didn‘t they follow it up?  And Dan, for that matter, why didn‘t they follow up on a guy up until six weeks ago who saw a Laci sighting and called there within a week, or someone he thought may have been her?

ABRAMS:  You know why?  Because they—I‘ll tell you why.  Because they‘re convinced they‘ve got the right guy sitting right there. 

TACOPINA:  Right.  And that‘s exactly what the defense‘s point is. 

ABRAMS:  I know it is.  I know it is.

TACOPINA:  They decided Peterson was guilty from day one. 

ABRAMS:  No.

TACOPINA:  And they avoided any other evidence.

ABRAMS:  They waited four months, Joe, four months to arrest him.  That is day one?

TACOPINA:  Well, because they were looking to build a case, Dan.

COLWIN:  They zeroed in on him from the—they had these leads very early. 

TACOPINA:  They couldn‘t find it.

ABRAMS:  Wait.  Lisa—Let me let Lisa in. 

TACOPINA:  OK.

ABRAMS:  Go ahead. 

NOVAK:  All that yelling and hollering, I couldn‘t hear a question. 

ABRAMS:  All right.  I thought that was you who was trying to chime in there. 

Mercedes, go ahead. 

COLWIN:  No.  I mean, these are really critical leads that came in, and certainly that lead that Joe just mentioned is an accident point. 

I mean, here‘s someone who said, “I saw someone who looked just like Laci walking a similar dog and they don‘t speak to them until nine weeks into the trial.  That‘s outrageous.  I mean, they should have had a lineup.  They should have said is this what the person looked like?

ABRAMS:  Why—why are the prosecutors obligated to bring forward every police theory that came up? In every case you could talk to the police about what other leads they followed up, you looked at this, looked at that.

But you know what their answer is?  “Yes, we found—we found the right guy, though.” 

TACOPINA:  Dan...

ABRAMS:  Go ahead, Joe. 

TACOPINA:  Let me respond to that.  Listen, it‘s not a prosecuted theory.  It‘s basically what is defense is showing that, look, the defense pointed out they had 10 guys surveilling in different minivans, Scott Peterson, following him around.

What they did not do.  They talked about the enormity of this investigation, how many hundreds of cops are involved.  All they needed was one guy to go speak to the person who called in a tip and then they could seal the deal. 

ABRAMS:  You‘re right.  You‘re right.  So what?  You‘re right.

TACOPINA:  Well, so what?   Not so what.  So what if the investigation was biased?

ABRAMS:  What does activity to do with the case? . 

TACOPINA:  It shows that the investigation was biased, that they did not resolve all the potential witnesses in this case from day one, that they were only looking for evidence to tie Peterson to this murder.  They thought it was poison.  That didn‘t work.  They thought maybe she—he did it this way.  That didn‘t work.  I mean, they‘ve been turned away at all different angles. 

ABRAMS:  Or you could argue they actually investigated and found things that actually made sense and didn‘t make sense. 

All right.  Let me take a quick break here. 

Coming up, what the police didn‘t do.  There‘s also some issues in reference to what they didn‘t actually do in the search to find the killer. 

And, the recounting in Florida back in 2000 finally ended.  The Supreme Court stepped in.  Many have said for a long time it was a decision driven more by politics than law.  Now an in-depth article in “Vanity Fair” magazine suggests that that‘s true.  They say they have the interviews to prove it. 

Later, whether you like it or not, it‘s a fact many soldiers overseas pay prostitutes for sex.  But should they do go to jail for it and get kicked out of the military if it‘s legal in the country?  They will if the Pentagon gets it way. 

Your e-mails, AbramsReport@MSNBC.com.  Please include your name, where you‘re writing from.  I‘ll send in your emails.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SCOTT PETERSON, CHARGED WITH WIFE‘S MURDER:  Well, I mean, it seems like it‘s a waste of man power in that pursuit.  And that‘s unfortunate.  That makes me sad more than it does angry.  You know, when they‘re out there in the marina and I heard there‘s 88 officers.  Those were 88 officers that could have been following up on investigative leads. 

(END VIDEO CLIP)

ABRAMS:  Yes.  The problem is they found the body there. 

A frustrated Scott Peterson talking about the Modesto police about a month after his wife, Laci, vanished.  His interview played for jurors during the trial. 

With the lead detective in the case on the stand, Craig Grogan, remember, we listened to 41 reasons why he thought Laci‘s body would be found in the bay and why Scott should be considered a suspect?  And he was right, at least about where the body would be found. 

But now the defense saying here‘s what they didn‘t do.  And they‘re going on the offensive.

Let me lay out for you some of the points they‘re making as to what they didn‘t do.  No fingerprints were taken in the home.  No testing on a construction bag found near Laci‘s remains until last month. 

Fingerprints on duct tape and on the bag not tested until last month.  That‘s the stuff that was found with Laci‘s body.  And the lead detective unsure whether the dog‘s leash was tested. 

Other items found near Laci that may not have been tested.  Some brown fabric, strips of elastic found on the shoreline.  A pair of underwear found north of Laci‘s body, and a black plastic tarp. 

All right.  Lisa Novak, we see this in every case.  The defense in every high-profile case, when they have time to go after each and every one of the items that the police did and didn‘t do.  But was this abnormal?  I mean, the bottom line is, was this bad police work?

NOVAK:  You know, I think that there are some things that the police did or didn‘t do that should raise eyebrows, that raise questions.  And this is coming from someone who is a former prosecutor. 

I have to agree with Mercedes to the extent that this is—in any homicide case, you should do more rather than less, and I think that there were some items of evidence that the police should have made sure were tested. 

When they find a plastic bag which appears to have been found next to the decomposed body of a victim, should they do some forensic testing?  Absolutely. 

It is of note, however, that the duct tape that was on that bag does not match the duct tape that was found on Laci‘s pants.  And it was based on that piece of information that the police decided they weren‘t going to do any further forensic evidence. 

But I think some of those pivotal pieces of evidence, the defense does having to something to talk about it.  Was this a rush to judgment?  No, not unless you have a different definition of rush when you‘re talking about government work, because it did take them several months. 

But Scott Peterson was and should have been a focus position.  And that‘s how they did their investigation. 

ABRAMS:  And that‘s what I was going to ask Joe.  I mean, Joe, all these things that they, quote, didn‘t do seem to me show more incompetence, arguably, than rush to judgment, right? 

TACOPINA:  Yes.  I mean, it shows incompetence, but you know, sometimes incompetence and a rush to judgment, Dan, tend to—tend to sort of blur.  Because whether they‘re incompetent or whether they decided Peterson was the one.  Now let‘s find the evidence to show that, either way this prosecutor has to speak to a jury on a circumstantial case and ask them, do they have an abiding conviction here and are they willing to take someone‘s life. 

Are they willing to make this—on this evidence, are they willing to convict Scott Peterson of the worst crime anyone could ever be convicted of? 

And even though, viscerally, 90 percent of the people out there would probably say he‘s guilty, because he‘s done all these things and who acts like that and who else could have done it, that is not what this is about.  The judge is going to give them instructions, Dan.  I‘ve read it.  I‘ve read the circumstantial evidence charge in California.

This prosecution better have one heck of a summation. 

ABRAMS:  I agree. 

TACOPINA:  To tie together all these points.

ABRAMS:  I agree with you.  I mean, don‘t get me wrong.  It‘s not 90 percent of our viewers.  I mean, we‘ve taken polls and we talk about the evidence, et cetera.  It‘s about 35 percent of our viewers say that they think that they would acquit.  That says to me...

TACOPINA:  When you say your viewers, you mean your show‘s viewers?

ABRAMS:  Yes, yes. 

TACOPINA:  Those are people who are following—those are people who are following the case closely. 

Right.  Because—and you‘re doing a legal analysis, which is the one we should be doing, which is one that I think has to have, unfortunately, a brutal reality.  And sometimes is—even though we think he‘s a bad guy, the evidence is not there. 

ABRAMS:  Mercedes, listen.  Hang on. 

COLWIN:  Could I say one more thing, Dan, if I could?

ABRAMS:  Quickly, Mercedes. 

COLWIN:  Sure.  I just want to add one thing.  I think there‘s an elevated expectation for jurors to have forensic evidence and if there‘s any—if there‘s that list and Geragos is going down that list and saying they didn‘t take fingerprints, I mean, any of these shows that lots of people watch, there‘s an expectation.  There‘s been these fingerprints taken. 

ABRAMS:  Yes.  But if they watch them enough, they know that in all these cases the same defense arguments you hear again and again, which are, well, you know, there was someone else‘s fingerprint found on a railway.  You know, none of that stuff usually means anything.  In the O.J. Simpson case, we heard all these same arguments. 

And of course, you know, the question becomes...

TACOPINA:  Oh...

COLWIN:  It resulted in his acquittal. 

ABRAMS:  That‘s right.  It did.  That‘s right.  It doesn‘t mean he didn‘t do it. 

TACOPINA:  Different sorts of evidence.  That was a world apart.  I mean...

ABRAMS:  It was.  It was. 

I don‘t want to get into O.J.  Stick around.  Stick around for a minute, because we‘re going to talk more. 

I want to play a piece of sound in the next block between Detective Grogan and Scott Peterson where Scott Peterson seems to think Grogan is doing a real good job. 

And what happened behind the scenes when the U.S. Supreme Court ruled 5464 to bring an end to the 2000 election.  A new article says after interviewing the law clerks who worked for the justice, it‘s clear it was political more than legal. 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  My understanding is that after you told Laci, you continued to see Amber.  Was that also the right thing to do?

PETERSON:  No.  No, it was not. 

UNIDENTIFIED FEMALE:  Explain that. 

PETERSON:  That is the explanation.  It was not the right thing to do. 

UNIDENTIFIED FEMALE:  But you continued to do it. 

PETERSON:  Right.  And it was not the right thing to do. 

UNIDENTIFIED FEMALE:  And then even after Laci went missing, you continued to romance this girl?

PETERSON:  No. 

(END VIDEO CLIP)

ABRAMS:  No?  Well, how about this from three weeks after Laci went missing?

(BEGIN AUDIO CLIP)

AMBER FREY, SCOTT PETERSON‘S FORMER MISTRESS:  Scott, why are you wanting a relationship with me?

PETERSON:  Amber, I care about you.

FREY:  Define care.

PETERSON:  I worry, hope and desire to make you happy.  I worry about you, I desire to make you happy.  I desire to help you if you need it.  And I desire to be, you know, something positive in your life like a positive partner, you know?

(END AUDIO CLIP)

ABRAMS:  Joe Tacopina, how much do the lies matter?

TACOPINA:  At this point, quite frankly, I don‘t think a lot, Dan.  You know, I think this jury has been 18 weeks here.  The one thing they know—they heard on first day of this trial—is Scott Peterson is a liar.  He lied about his affairs.  At this point...

ABRAMS:  And a lot of other things. 

TACOPINA:  And a lot of other things.  But you know, the one thing they haven‘t really caught him in a lie about is—is you know, anything that was—is proof positive of this murder. 

You know, we talked about this ad nauseum, but the Amber tapes, they tried every which way from Sunday to get Amber to get him to trip up, you know, in one of those conversations regarding, you know, Laci‘s disappearance.  Never did.  Lied all the time.

You know, hopefully the prosecution isn‘t going to make the fatal error.  Look, they‘re ending on a high note here.  Hopefully, they‘re not extending their case because they‘re going to play five more Amber tapes to show he‘s a real liar again. 

ABRAMS:  Yes.

TACOPINA:  I mean, I think that could work against them at this point. 

ABRAMS:  Let me play this piece of sound.  And this is a conversation he had with Detective Grogan.  Remember, this is the one that the police, lead detective—sorry, the police are saying, you know, they messed up this investigation.  Here‘s Scott and Grogan.

(BEGIN VIDEO CLIP)

DETECTIVE CRAIG GROGAN, MODESTO POLICE:  All right, that sounds good.  All right.  Any questions you got for me, Scott?

PETERSON:  No, no, you‘ve been, you know, real good to me, so—you‘ve been real fair and I appreciate it. 

(END VIDEO CLIP)

ABRAMS:  Lisa Novak, it doesn‘t really matter that Scott Peterson is saying to Grogan back then “You‘ve been good to me.  You‘ve been fair to me,” right?

NOVAK:  It‘s six days after his wife has gone missing, and he wants to curry favor with the police.  It doesn‘t matter. 

I take issue with the interpretation that he hasn‘t lied about anything about the body‘s going missing and about Laci‘s disappearance.  The guy lied from the very beginning. 

“I was golfing.  Oh, wait a minute.”

ABRAMS:  That was a bit one.

NOVAK:  “Let me turn to my neighbor.  I was golfing.”  You know, before the police got involved. 

And then, as the investigation continues, he continues to lie about the facts of this case.  When he gets caught on “Good Morning America” about the affair with Amber, and he can‘t even be honest about that with Grogan.  He doesn‘t say, “I lied.”  He says, “I got that answer wrong.”

I mean, that‘s this guy‘s pathology.  He constantly lies, and he does lie about significant things about this case. 

TACOPINA:  What lie—what lie of significance?

ABRAMS:  OK, Joe.  It‘s significant that he lied about whether he went golfing or he went fishing the day his wife went missing.  The day—when he gets home that day, he lies about that.  That‘s big.  That‘s not nothing.

NOVAK:  How do you confuse those two things?  How do you confuse them?

ABRAMS:  Yes.  I‘ve got to wrap up.

NOVAK:  One‘s a little ball.  One‘s a big body of water. 

ABRAMS:  All right. 

COLWIN:  But it all depends on when it was said. 

NOVAK:  During a cell phone conversation. 

ABRAMS:  Joe Tacopina, Lisa Novak, and Edie Lambert, thanks a lot.

Coming up, your emails on the Scott Peterson case.  One of you thinks Scott‘s affair with Amber Frey was not like the others. 

Remember, your e-mails to AbramsReport@MSNBC.com.  Leave you name, please, and where you‘re writing from.  I respond at the end of the show.

Also coming up, one of the Supreme Court‘s most controversial decision ever.  Critics says the ruling that ended the 2000 election was political.  Now a new magazine article says that‘s true.  And they say they‘ve got the interviews to prove it. 

And the Pentagon wants American troops who visit prostitutes overseas to go to jail, even if it‘s legal in that country.  Is that really a good move with our troops, many of them single, spending more time than ever away from home?

(COMMERCIAL BREAK)

ABRAMS:  Coming up, for the first time since the U.S. Supreme Court decision that ended the 2000 presidential election, someone talks to the law clerk who worked with the justices blind the scenes from the court.  They say it was political. 

First, the headlines.

(NEWSBREAK)

ABRAMS:  We‘re back. 

As the election draws closer, more and more people are talking about Bush v. Gore, not the election, but the legal battle that followed in 2000, a battle that ended at the nation‘s highest court. 

Ever wonder how that decision was really determined, what really happened behind the scenes with the justices?  Well, a new article in “Vanity Fair” magazine takes an inside look at how that opinion came to be and effectively says it was as political as many suspected. 

They got exclusive interviews with some of the Supreme Court clerks, young lawyers just a year or two out of law school who often write the first of the justices.  And according to this article, had more of an impact than many could even imagine. 

The result, a blockbuster article with loads of new information. 

Now remember, more than month after voters went to the polls, the court split decision 5-4 ruled that the recount violated the equal protection clause of the Constitution because they said there was not a uniform standard for counting the votes. 

Many argue that reasoning was based more on politics than law, and this article suggests that‘s true. 

My next guest talked to a quarter of the 35 clerks who were working for the justices at that time, both liberal and conservative. 

My take: assuming what the clerks said is true, I applaud them for speaking out on an issue this important.  They all refused to disclose internal conversations or documents they had with their—internal conversations they had with their justices they received. 

But a group of 90 angry ex-Supreme Court clerks have written a letter chastising the sources of the article, accusing them of violating their, quote, “duty of confidentiality. 

First, I wonder how many of them were strong-armed into signing that letter, and more importantly, that‘s an old argument.  Every time a government official discloses private information, he or she is accused of the same thing. 

And sometimes, just sometimes it‘s more important—I would say patriotic—to expose problems in our system than to remain silent.

Remember, in Bush v. Gore the justices in their opinion wrote, quote, “Our conversation is limited to the present circumstances,” meaning they don‘t want it cited in the future as the precedent. 

Apply it to the clerks.  Limit it to the present circumstances and don‘t worry about the long-term impact their disclosures about this case could have on the court as a whole.

The article appears in the October issue of “Vanity Fair,” and I‘m joined now by one of its authors, also an attorney and a man long viewed as one of the deans of journalism, David Markowitz. 

David, good see you.

DAVID MARKOWITZ, “VANITY FAIR”:  Thanks, Dan.

What convinced you, based on your reporting, that this decision was political?

Well, I think that, you know, the eagerness with which the court took the case.  There were five justices who seemed very hell bent on stopping the recount and finding any reason that they could to do it.  And sort of stretching the law to do it. 

ABRAMS:  What was the clerks?  I mean, what about—what was it about talking to these law clerks?  And no one gets to talk to these law clerks.  This is really the behind the scenes stuff. 

What is it that they said to you that made it clear to you that it was political?

MARKOWITZ:  Well, first of all I should say that no one normally talks to thee law clerk, but that‘s not—that‘s not to say that a journalist shouldn‘t try. 

And I think it was a real problem that the reporters who cover the Supreme Court never really tried to go after these people.  And these people were sort of waiting to tell their story.  They felt that the court had acted inappropriately, and they wanted to describe why they felt that way. 

And they‘re, you know, they‘re not.  They‘re not normally indiscrete people.  They‘re usually very straight people and they—under normal circumstances, they wouldn‘t have spoken to a reporter. 

COLMES:  Led me read you—let me read a quote from your article, No. 1 here.  To the liberal clerks, it was apparent that the conservatives had already decided the case and were merely auditioning arguments. 

You know, so the liberal clerks are saying that.  Why?  You know, people out there are going to say, yes, so what, the liberal clerks are saying that? 

MARKOWITZ:  Well, that‘s a problem.  I mean—The liberal clerks are really the ones who are most indignant over the decision.  And they were the ones who more inclined to speak about it, but they were struck by how the court really couldn‘t seem to come up with a rationale and had kind of ordained the result before they could find a rationale. 

And there‘s even a quote in the story from Justice Scalia, disparaging the court‘s majority opinion. 

And let me read No. 3 three here, this is—this is talking about justice Kennedy who was viewed as—you say effectively, the key person in your article, who really had been ready to side with the other side on this. 

And I quote, “Kennedy would not have voted the other way,” this clerk says.  “But had he been tempted, the clerks could have dissuaded him.” 

Briar lamented that he had Kennedy convinced only to have his clerks work him over and pull him back in the other direction.  I mean, are you saying that the law clerks for Justice Kennedy essentially decided one of the most important Supreme Court cases in our history?

MARKOWITZ:  Well, there‘s long been a suspicion that Justice Kennedy is susceptible to the influence of his law clerks.  And after he deviated from the conservative party line and voted with the liberals on a couple of key decisions, including the abortion decision, a panel was set up to make sure that Kennedy didn‘t get any liberal law clerks to influence him. 

ABRAMS:  Dave, what are you going to say to those who say this is a liberal hatchet job, that the bottom line is that, you know, you or people who are working on this just came into it with a thesis and that these liberal law clerks just backed it up?

MARKOWITZ:   Well, I think that, if you spoke to the people, you would see these are not really party activist types.  These are straight arrow, Harvard Law Review type people who usually play by the rules.  I think were so outraged by what happened they felt like speaking out.  They didn‘t come to me.  I had to find them and convince them to speak to me.  They are not political partisans really. 

ABRAMS:  What about—You say both liberal and conservative, but is it fair to say that more of the clerks you talked to were liberal than conservative?

MARKOWITZ:  Yes, it‘s absolutely fair.  I mean, I think that there‘s sort of a stonewall when you talk to most of the conservative law clerks.  And they won‘t even take your call. 

And...

CAVUTO:  But I should say that I think that if the opinion had gone the other way, their willingness to speak would have been very different. 

ABRAMS:  And so, you know, is that bottom line is that this article suggests that from the beginning, you say that the conservative law clerks very basically just out there figuring out a way to allow Bush to win?

MARKOWITZ:  Well, I‘m not saying that the conservative law clerks were figuring that out. 

What I‘m saying is that it seemed that five of the justices, a majority of the Supreme Court, voted to take the case under circumstances that surprised most experts, who didn‘t think the court would get involved. 

And that would suggest that a majority of the court was basically pretty much inclined to stop the recount from the very beginning.  And that the Gore lawyers were really fighting a losing battle. 

ABRAMS:  I should tell you, you know.  Look, if any of the conservative law clerks working at the time want to come on the program or call us, give us anonymous quotes to respond to this, I will put it on air. 

MARGOLICK:  Well, yes and in fact, I called them all...

ABRAMS:  Yes, no, I‘m just—I‘m offering them up another opportunity...

MARGOLICK:  Well good luck with that.

ABRAMS:  Well, thank you very much.

(AUDIO GAP)

ABRAMS:  Thanks a lot...

MARGOLICK:  Thank you Dan.

ABRAMS:  For complete coverage of the legal battles already in the court...

(AUDIO GAP)

ABRAMS:  ... and click on the making your vote count link. While you‘re there, you can sign up to get the newsletter.  We e-mail it every day so that you know which stories we are covering.

Coming up, U.S. troops could soon sent to prison for a year, kicked out of the military if they...

(AUDIO GAP)

ABRAMS:  Is that the kind of rules the Pentagon should really be making now?

And much of the prosecution‘s case against Scott Peterson coming down to Amber Frey and the boat prosecutors say he used to dump Laci‘s body in the bay.  What do they have in common?  One of my viewers says something big.  Your e-mails...

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  Because we believe in human dignity, America and many nations have joined together to confront the evil of trafficking in human beings.  Women and children should never be exploited for pleasure or greed anywhere on earth. 

(END VIDEO CLIP)

ABRAMS:  The Pentagon says that is why they want troops court-martialed if they visit prostitutes even in countries where prostitution is legal.  Right now prostitution and pandering or as it is commonly known pimping is illegal under the uniform code of military justice.  But patronizing a prostitute is not. 

Now the Pentagon is trying to change that by posing an amendment to the uniform code of military justice making it an offense to visit prostitutes.  The State Department has said—quote—“When you are talking about the sex trafficking part of trafficking, demand is created by the so-called customers and it‘s an unfortunate fact that historically when you have national forces going from one country to another this leads to increased prostitution and increased trafficking in the number of slave victims.”

“My Take”—if the U.S. government really wants to target the trafficking of women, they could deal with in it a far more direct and productive way.  Keep in mind that prostitution is legal in parts of the United States.  This is more like a morality ploy that restricts the rights of our hardworking soldiers abroad.  If it‘s legal and they‘re single, the Pentagon ought to butt out, so to speak. 

They can advise against it, talk about the risks of doing it, but a year behind bars and dishonorable discharge, particularly when our troops are spending more time than ever away from home?  Joining me now is St. Mary‘s University law professor and retired U.S. Army JAG Colonel Jeffrey Addicott, who supports the Pentagon‘s position and retired U.S. Army Colonel Ken Allard, who does not. 

All right, Colonel Addicott, you know, doesn‘t this seem like not the right time to be doing something like this where you‘re saying, you know, it‘s legal in that country and yet you can‘t do it? 

LT. COL. JEFFREY ADDICOTT, RETIRED U.S. ARMY JAG:  Well, it‘s absolutely the right time for the Pentagon to do this and long overdue.  This immoral conduct has occurred in the shadows for too long.  The problem is from a practical viewpoint we‘re not fighting a war in the shadows, as we have seen with Abu Ghraib.  The world is scrutinizing everything that our soldiers do, and the Pentagon has made a decision that they‘re going to enforce this type of virtue in our military and I think it‘s long overdue. 

ABRAMS:  Colonel Allard, what do you make of it? 

KEN ALLARD, U.S. ARMY COLONEL, (RET.):  Well, Dan, when I first heard the story, my immediate reaction was what in the world are they thinking in a time of declining enlistments?  Look, the simple fact is that this has long been something that we took action against as appropriate.  Because you know there are statutes against adultery, conduct unbecoming, all these things, so we have taken that action before.  This seems to be just simply to be grandstanding and not very much else. 

ABRAMS:  Yes, I mean that‘s my concern, Colonel Addicott, is this one of those sort of morality ploys that you know, that look, that will appeal to many people because look, most people think prostitution is a bad thing and there is no question that prostitution leads to more trafficking, but to claim that this is about the trafficking of women, I think you are being more honest about it, Colonel Addicott, than they are. 

ADDICOTT:  Well, I think, you know, apart from the moral issue, there‘s really, as I said, the practical issue.  Because morally I mean if you engage with a prostitute, you are not going to go back and tell your mom, your sister, or your wife that hey, honey, I just had sex with a prostitute.  It‘s conduct that has occurred in the shadows.  The military has long turned a blind eye toward it. 

For example, our military has made many changes in the last 30 years.  There was a time when I was in the military you could go to an officers‘ club and you‘d have topless dancers in there.  That‘s been taken away and rightfully so.  The alcohol policy has changed.  But in the war on terror as we saw in Abu Ghraib the world is looking at everything that our soldiers do. 

ABRAMS:  Yes, but come on...

ADDICOTT:  And we cannot afford...

ABRAMS:  Come on...

ADDICOTT:  ... to be painted as the bad guys as the moral warmonger. 

ABRAMS:  But Colonel, to compare this to Abu Ghraib, I mean, come on, I mean, you know, I mean you‘re looking there at people, you know, beating, mistreating other people and to say that this is somehow comparable. 

ADDICOTT:  Well, I think there is.  Because my argument is, you know, if we have individuals that frequent houses of prostitution and activities occur there and the news media gets some pictures about that that will be splashed all over...

ABRAMS:  Really...

ADDICOTT:  ... the front...

ABRAMS:  I don‘t know.  Maybe...

ALLARD:  Hey Dan...

ABRAMS:  ... I‘m wrong, but Colonel Allard, I have always assumed and based on movies and everywhere that the U.S. military, you know, that sometimes, you know, people go to prostitutes, particularly where it‘s legal. 

ALLARD:  Yes, they do that and it‘s sort of like the “don‘t ask, don‘t tell” policy.  As long as it does not become a problem for us, it does not become a problem for you.  That‘s always been what the colonel calls a blind eye.  But look, if you did something like that and if you got caught and if it became a public issue, you knew that you were going to have the book thrown at you because it has always been not only immoral, but also illegal. 

ABRAMS:  But it hasn‘t - right—but it hasn‘t, for example, in Germany.  It‘s not illegal.  And as a result...

ALLARD:  Depends. 

ABRAMS:  ... as a result of this new policy in parts of Germany where it is legal, this would now be illegal. 

ALLARD:  Well, Dan, you know we could always prosecute somebody, again, for conduct unbecoming or for adultery in those circumstances... 

ABRAMS:  Right.  Forget about adultery.  Adultery I understand.  I‘m talking about single people. 

ALLARD:  Yep. 

(CROSSTALK)

ABRAMS:  Go ahead Colonel Addicott.

ADDICOTT:  Well, does it increase combat readiness or not?  In the era of the 21st Century where MSNBC is always watching and I‘ll just, you know, throw that out there...

ABRAMS:  Yes.

ADDICOTT:  ... our leaders have determined it does not increase combat readiness.  Do we really want to engage in that dialogue in the war on terror?  I think because the cameras are there, this story is waiting to happen.  It will explode on us. 

ABRAMS:  Colonel, how about banning magazines, then too? 

(CROSSTALK)

ADDICOTT:  Well again, we‘re talking about the slippery slope argument.  I have never felt...

(CROSSTALK)

ADDICOTT:  ... in my 20 years that prostitution enhanced combat readiness. 

ABRAMS:  But, does looking at pornographic magazines enhance combat readiness? 

ADDICOTT:  Well, our culture does not outlaw, you know, these types of magazine.  You cannot engage in this activity except in two counties in Nevada, so the vast majority of our military is not engaged in this conduct and I think it‘s immoral conduct...

ABRAMS:  Yes.

ADDICOTT:  ... and by the fact that it‘s done in the shadows, we don‘t operate in the shadows anymore. 

ABRAMS:  All right.  You know, tough—close call, but I come down with Ken Allard on this one.  All right, Colonel Addicott, Colonel Allard, both, thank you very much.  Appreciate you coming on the program...

ALLARD:  You bet.

ADDICOTT:  Thank you sir.

ABRAMS:  Coming up, a lot of you writing in, questioning what I know about the use of the word “God” in the document the founding fathers wrote.  It turns out I may know my American history better than some of you.  Your e-mails coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, your angry e-mails keep pouring in from both sides.  I don‘t know maybe that proves that I‘m fair.  I don‘t know.  It‘s my “Closing Argument” coming up.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—your e-mails.  I‘m going to spend more time on them today and less time on me spouting off.  But let me say this.  As my regular viewers know, we get a lot of angry e-mails every time we do a controversial story.  The negative, sometimes furious outnumber the positive ones at least 2-1.  I think that‘s great.  I want to know what you think is wrong with the show and more specifically with what I say and it‘s hardly surprising that more angry people are writing. 

Most of us have a tendency to wait until we‘re angry to fire off a letter.  My regular viewers know I come down hard on the extremists on both sides on most issues.  I get about as many of you accusing me of being a slave to the right as a slave to the left.  I take that as a compliment.  And so let me post this challenge.

When you‘re preparing to rip me into me for being the dumbest, most partisan, most judgmental fool you have ever seen, stop for a moment and ask yourself is it possible that maybe, just maybe it‘s not me but, well, you get it.  But I have to tell you, reading your e-mails is my favorite part of preparing for the show.  And for that, I thank all of you. 

I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night I was getting attacked from both sides about my “Closing Argument” where I said Congress should stop wasting its time and our money passing laws like the one that says courts should not be able to review the constitutionality of anything related to the Pledge of Allegiance or its recitation.

I also said the U.S. Supreme Court will likely allow the recitation of the words “under God” in schools any way, as I think they should.  I said “God” is on our money, in our courtrooms, in documents written by our founding fathers and I have no problem with that.  A lot of you writing in with the same thought as Courtney Frasier.

“The founding fathers never used God in any of their official documents concerning the government.  Look it up.  Search for God in the Declaration of Independence.”

Courtney, I did and it‘s there.  Look again.

From Paige, Arizona, Kirk Robinson, “God does not appear in our founding documents.”

Kirk, you also might want to try the word creator.  You‘ll find both in the Declaration of Independence. 

And in my “Closing Argument” last night I said I am tired of hearing people compare the Florida election debacle of 2000 to the voting problems in third world countries, that that just detracts from the serious problems that did and do exist our own voting system. 

Again, plenty of responses—from Lima, Peru, Rob Zweig, “We have a right to manage our elections without international supervision.  However, if we fail to meet the very standards to which we hold other nations accountable, surely we can at least behave with enough maturity to accept valid criticism, recognize our failings, and take the appropriate corrective action.”

I agree Rob.  That‘s what I said.  We need to make changes, particularly in places like Florida.  But comparing to it Mozambique just assures that most Americans will tune out. 

I also said Americans are not going to allow international monitors to tell us how our election can or should be run.

John Mellish from Trumbull, Connecticut.  “Statements of superiority and inferiority will certainly not cure the problems of others or our own domestic faults.  Stop it.” 

Dennis Gorman in Martinez, California.  “I almost agree with you—I almost always agree with you, but your attitude this time is elitist.  We are the United States and we do everything right seems to be your attitude.  Give me a break.”

Not true.  I said we have problems, but our problems with our internal voting system will not be changed as a result of international monitors or pressure.  That‘s almost certainly a fact. 

New evidence in the Scott Peterson case that Amber Frey was not Scott‘s only girlfriend.  The jurors hearing that he had at least two other affairs while married to Laci.  The defense may argue he didn‘t kill Laci for the other girlfriends so why would he kill Laci now? 

Sally Magnes in Mount Laurel, New Jersey.  “It‘s true that Scott had affairs early on in the marriage, but this time she was pregnant and that would really cramp his style of living.”

David Wise in California writes in about that and about Scott buying a boat weeks before Laci disappeared.  “Two of the biggest things wives hate are affairs and boats.  I doubt Laci would have been happy with either of his actions.”

Gloria Nettro in Cleveland, Ohio with a message for Peterson‘s defense attorney Mark Geragos.  “Please give us a break Mr. Geragos.  There are just too many coincidences for this to be.  I  hope the jury will stick to just the facts of this case and will not fall for all of the hypothetical stories Mark Geragos would have them believe.”

Finally Joni Banks in Syracuse, New York with a question about the fact that Peterson had Viagra with him when he was arrested.

“Does long-term use of Viagra cause such a blood flow diversion that Scott has forgotten that he murdered his wife and child?”

Your e-mails abramsreport—one word -- @msnbc.com.  We go through them at the end of the show.  And again, you know if any of you, any of the law clerks who were involved in the 2000 election, particularly the conservatives feel that our David Margolick‘s report was unfair, e-mail us. 

Tell us you want to talk to us even if it‘s off  -- even if it‘s anonymously.  Not off the record, but we‘ll put it on or put it in e-mails, whatever.  We‘ve just got to verify it. 

Coming up next, “HARDBALL” with Chris Matthews.  Chris‘ guest Bill Maher.  Thanks for watching.  I‘ll see you tomorrow.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

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