updated 10/5/2004 11:58:53 AM ET 2004-10-05T15:58:53

Guests: Dean Johnson, Mickey Sherman, Mercedes Colwin, Arthur Miller, Ken Starr

DAN ABRAMS, HOST:  Coming up, as prosecutors in the Scott Peterson case race to the finish they present arguably their most compelling evidence so far.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  An expert in tidal currents tells jurors Laci Peterson‘s body was likely dumped in exactly the same area her husband says he was fishing the day she disappeared.  And jurors hear another one of Peterson‘s lies.  He tried to buy a car just days before he was arrested, using his mother‘s name.

Plus, the U.S. Supreme Court is back for a blockbuster session, preparing to decide whether minors can get the death penalty, whether the government can take your house, destroy it, and build bigger buildings like hotels instead, and whether any American should be able to legally smoke pot in their homes.  How will they rule?  We‘ll ask two great legal minds, Kenneth Starr and Arthur Miller.

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  What a show we have for you today.  With the state only days away from wrapping its case in the Scott Peterson case, prosecutors present a witness who says he has a real good idea of where Laci and her son, Conner‘s, bodies were dumped.  You guessed it, right where Scott Peterson says he was fishing that day.  He may be a so-called expert witness who specializes in tidal currents, but prosecutors may call him their ace in the hole.

Edie Lambert from NBC affiliate KCRA was inside the courtroom today and joins us with the latest.  Hi Edie.

EDIE LAMBERT, KCRA REPORTER:  Hi Dan.  As you know, the jury already knew that the remains of Laci and Conner were found very close to where Scott Peterson said he went fishing, but that hydrologist nailed it down even further.  He said that there was a—quote—“high probability that those bodies were dumped exactly in between the Berkeley Marina, where Scott Peterson said he launched his boat the day Laci disappeared and Brooks Island”, the location where he said that he went fishing.

Dr. Ralph Cheng did two studies; one of those before and one after the bodies were recovered.  In that second study, he essentially backtracked, using wind patterns.  But in that case, he could only chart a trajectory for Conner‘s body and not Laci‘s and that is one place where defense attorney Mark Geragos really issued a challenge.  Geragos also he pointed out the studies were based on a series of assumptions and he pointed out that Dr. Cheng is a specialist in the movement of water in the San Francisco Bay, but he‘s really never studied how a human body would move through the bay.

Also today, we heard from a postal inspector who talked about Scott Peterson taking out a private mailbox, just the day before Laci Peterson disappeared.  This is not new information for the jury.  In fact, they heard the very first letter that he received in that mailbox was from Amber Frey, but it could be the prosecutors are trying to point this out again.  He also talked about a month later, so January 30, Scott changing his mail to be forwarded to that private address from his home and from his warehouse.  But of course an innocent explanation for that would be his home had been broken into by that point.  There was as recurring problem with mail theft at his warehouse.

And today we heard about Peterson trying to buy a car in those days before he was arrested.  First, he tried to buy a Saab.  Then he did buy an older model Mercedes.  In both cases he filled out that paperwork with his mother‘s name and his mother‘s driver‘s license number.  The man who sold him the Mercedes asked him about that and Scott said well that is my name.  It‘s sort of a guy named Sue-type of a thing.

And finally, we are now hearing from close friends of the Petersons.  The prosecutors really seem to be honing in on Scott‘s changed appearance just before his arrest, his lighter hair color, the goatee.  The best man in his wedding said that he asked Scott about that on April 3 -- that was about two weeks before Scott was arrested.  And Scott said, well, it is just because I‘ve been going fishing up at Erin Fritz‘s (ph) house in a swimming pool.

Next witness up, Erin Fritz (ph), saying I‘ve never seen Scott use my pool.  So, that‘s the way they left things.  Attorneys are now in an evidentiary hearing.  We‘ll be back in court tomorrow morning.  And Dan, I‘m told they only have two or three more witnesses to go for the prosecution‘s case.

ABRAMS:  Edie Lambert, guy named sue.  Stick around.  (UNINTELLIGIBLE) go back to the court if you don‘t mind and if you just come back, give us a report on what‘s happening.  We‘ll check back in with you in a little bit.

“My Take”—to me it‘s the most important piece of evidence so far.  The fact that this expert is placing the bodies where Peterson says he went fishing, 90 miles away from home, on Christmas Eve, the same day his wife goes missing, to those who say there is no physical evidence in this case, I say to you, exhibit A.

Joining me now criminal defense attorneys Mercedes Colwin and inside the courtroom today, Mickey Sherman and former San Mateo County prosecutor, now criminal defense attorney Dean Johnson.  All right.  Dean, you know, you agree with me?  This is it, right?  This is what the case is about.

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Oh, yes.  I‘ve been saying for months that this hydrologist is going to be probably the strongest witness for the prosecution.  Certainly he turns out to be that - his testimony, very dramatic.  That he believes there is a high probability that Conner Peterson started his voyage in San Francisco Bay at a point that is midway between the Berkeley Marina and Brooks Landing.  Berkeley Marina being where Scott put the boat in.  Brooks Landing where Scott Peterson says he was fishing.

That‘s powerful, powerful testimony.  Now the prosecution is in a position to say look at our evidence.  The baby was put in the water right where Scott Peterson was fishing right in that vicinity and this baby did not live beyond December 24, the very day that Scott Peterson was fishing and Laci Peterson went missing.  They are in a strong position in this case right now.

ABRAMS:  Mickey Sherman, you were inside the courtroom.  Did you hear it a different way than Dean did?

MICKEY SHERMAN, CRIMINAL DEFENSE ATTORNEY:  I think I was at a different trial I‘ve got to tell you.  I totally disagree with Dean.  This guy, he was like Dr. Henry Lee light.  OK, in other words, he has this mystique about him.  He had a very strong accent and I don‘t say it by way of criticism because often that‘s kind of an enhancing nature of an expert whether they‘re from Korea or Japan or...

ABRAMS:  So, then you agree with Dean.

SHERMAN:  But—no, I don‘t...

ABRAMS:  Oh.

SHERMAN:  ... because I‘ve got to tell you, as a tidal expert, the tide never came in with his testimony.  I think Geragos did a fantastic job in cross-examination when he basically got him to say, well, you‘ve never really done this before, have you?  And he said, yes, I‘ve only worked with particles, never with flotation of bodies and trajectories like that.  He also...

ABRAMS:  But Mickey...

(CROSSTALK)

ABRAMS:  ... wait, wait...

(CROSSTALK)

ABRAMS:  ... are we expecting that there‘s some sort of like school out there that specifically teaches the flotation of bodies...

SHERMAN:  No...

ABRAMS:  ... in the San Francisco Bay?  I mean come on...

SHERMAN:  Hey, you‘ve got bug evidence in cases.  You want preciseness.  And when he was asked, he said there was a probability, but wasn‘t deterministic.  Geragos said what do you mean?  He said well it‘s probable, but not precise.  You need precise to convict somebody...

ABRAMS:  No, you don‘t...

(CROSSTALK)

ABRAMS:  But wait a sec...

(CROSSTALK)

SHERMAN:  I don‘t know about that.

ABRAMS:  What does that mean you need precise?  There is no such thing...

SHERMAN:  Yes.

ABRAMS:  ... as precise when it comes to all of these sciences that come in, in court, you can never...

(CROSSTALK)

ABRAMS:  ... almost never say with 100 percent certainty that something‘s the case.

(CROSSTALK)

ABRAMS:  That‘s not reasonable doubt...

MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY:  Dan...

(CROSSTALK)

ABRAMS:  Go ahead Mercedes...

(CROSSTALK)

COLWIN:  But even...

(CROSSTALK)

COLWIN:  ... if you are going to take on one assumption...

SHERMAN:  ... people who get killed—yes.  You want precise in a death penalty case.

ABRAMS:  Sure you do.  Of course you do...

(CROSSTALK)

COLWIN:  I whole-heartedly agree with Mickey...

(CROSSTALK)

ABRAMS:  I‘m not saying this guy by himself is enough to convict. 

But, boy, that is an important piece of evidence.  Go ahead, Mercedes.

COLWIN:  No, I mean if you look at some of the assumptions that he

said.  He said that her body was weighted down, well Dan, we haven‘t found

·         we found one anchor.  We have not found these other anchors...

ABRAMS:  Well, there is evidence to the concrete, et cetera...

(CROSSTALK)

COLWIN:  But the only evidence there were, were these little circles, the dust that they found in the truck, these little circles, they have never determined...

ABRAMS:  Well...

COLWIN:  ... how he made those anchors...

ABRAMS:  There is also missing...

(CROSSTALK)

COLWIN:  ... the anchors were never found...

(CROSSTALK)

COLWIN:  ... so that‘s assumption number one...

ABRAMS:  That‘s not true.  There‘s missing concrete and that‘s just not true.

COLWIN:  There is missing concrete...

(CROSSTALK)

COLWIN:  ... but when the defense gets down to it, they are going to say that that concrete was taken in a different part of the driveway.  It was not taken in the Peterson driveway.  At least that‘s going to be their explanation, enough to float the reasonable doubt out there.

But if you—I can‘t agree with Mickey enough when we talked about how these bodies were actually transported within the current.  He‘s only worked with particles.  He hasn‘t worked with bodies.  That‘s going to be a very critical...

ABRAMS:  So then I‘m assuming Mercedes...

COLWIN:  ... for the jury to understand...

ABRAMS:  ... the defense...

JOHNSON:  Wait a minute...

ABRAMS:  ... is going to call their own expert, then, right, to say that this guy is a bunch of hooey?

COLWIN:  You know what?  I don‘t think I would do that.  I would...

ABRAMS:  Oh, why not?

SHERMAN:  I don‘t think you have to.

COLWIN:  Exactly...

(CROSSTALK)

COLWIN:  You‘re going to use...

JOHNSON:  Mercedes you‘re wrong...

COLWIN:  ... the cross-examination.  I would not do it...

ABRAMS:  I know you wouldn‘t do it.

COLWIN:  I think you‘re going to muddy the water.

ABRAMS:  I know.  Go ahead, Dean.  I‘m sorry.

JOHNSON:  Mercedes, you are just wrong on two points.  Let‘s talk about this evidence.  What this doctor said is because we don‘t know how Laci‘s body was weighted down, because we don‘t know how it‘s wrapped, I‘m not going to give you any opinion on the vector that Laci followed.  What I‘m going to talk about is the path that Conner followed.  Conner popped up right at the point, very close to where Scott Peterson was fishing.  All right, and then he drifted to the shores of San Francisco Bay.  The question is, if Conner was inside Laci when he was put in there, how did Conner get into—at that precise point of the bay unless somebody put him and put his mother there?

COLWIN:  But Dean, we don‘t even know, the expert hasn‘t even said.  The experts that were brought forth couldn‘t even determine whether he was born alive or not when—during cross-examination, they admitted that it was possible that he could have been—that he was born alive, but they weren‘t absolutely sure...

ABRAMS:  All right, when...

(CROSSTALK)

COLWIN:  ... they did not...

(CROSSTALK)

ABRAMS:  All right.  Hang on...

(CROSSTALK)

ABRAMS:  ... I‘ve got to take a break.

(CROSSTALK)

ABRAMS:  I‘ve got to take a break.  When we come back, we‘re going to do two things.  First of all, we‘re going to talk about another witness, who, as Edie Lambert points out, says that Scott Peterson claims he was his mother when he was getting his new car.  And it‘s just something from the San Diego police report, which is just hilarious.  It basically says as to what they were thinking.  And also we‘ve got a montage, put together of all these little clips of Scott Peterson basically summarizing what he says he was doing that day.

And the U.S. Supreme Court begins its new term today, tackling some highly charged cases from whether minors can get the death penalty, to whether smoking pot should be legal for some.  Kenneth Starr and Arthur Miller have argued before the justices—you know who they are—they are going to weigh in on the issues.

Your e-mails send to abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  I respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, we put together all of those interviews Scott Peterson did to lay out a pretty brief time exactly what he says he was doing the day Laci went missing.  It‘s next.

(COMMERCIAL BREAK)

(BEGIN AUDIOTAPE)

SCOTT PETERSON, ON TRIAL FOR MURDER:  Hey beautiful.  I just left you a message at home.  It‘s 2:15.  I‘m leaving Berkeley.  I won‘t be able to get to Vella Farms to get that basket for papa.  I was hoping you would get this message and go on out there.  I‘ll see you in a bit sweetie.  Love you.  Bye.

(END AUDIOTAPE)

ABRAMS:  Love you, sweetie.  That‘s the final message that Scott Peterson left on Laci Peterson‘s cell phone answering machine, 2:15, he says, he says he is coming back from the Berkeley Marina.  We have been talking about an expert who testified today that he thought, testifying for the prosecution, that the bodies were likely dumped just about exactly where Scott Peterson says he went fishing that day.

But we wanted to put together sort of what Scott Peterson has said about what he did that day from various pieces of tape that have come into evidence in this case.  Let‘s listen.

(BEGIN VIDEO CLIP)

DIANE SAWYER, CO-ANCHOR, “GOOD MORNING AMERICA”:  And the last time you saw her was?

PETERSON:  I believe it was about 9:30 that morning.  The reason being we started to watch “Martha Stewart Living” while Laci was working in the kitchen and I left some time during that.

Yes, actually, in the back of my truck, I put some of these umbrellas that we have, these big umbrellas.  It started to rain and I was taking them to storage.  So yes, I did load some umbrellas in the back of my truck that day.

My day was open to either play golf or go fishing and I chose fishing that day.

UNIDENTIFIED FEMALE:  Why would he come home and do his laundry?

PETERSON:  Well, the average guy that goes out in the ocean fishing gets some salt water on him, and comes on wet.  She was in the house.  That‘s one thing we know.  The second thing we know is that the dog was returned to our yard with its leash on at 10:30 by a neighbor.  Those are the two things we know about her disappearance.  Hopefully, this can help some people.

(END VIDEO CLIP)

ABRAMS:  They eventually did find the body, although not where Scott Peterson thought they might find it.  All right, look a witness today testifies that Scott Peterson is using a fake name, his mother‘s name, to get a new car—get a used car and this—let me quote—this is number eight—this is the quote from the San Diego Police Department report about what they were thinking, what the person was thinking when he came in and used the name Jacqueline Peterson.

All right.  We filled out all the paperwork at the office.  I noticed at the time that he put the name Jacqueline Peterson on everything.  I didn‘t see the name Scott anywhere.  I thought maybe he was gay or a transsexual, being from San Francisco, and that Jacqueline was his female name.  It was just a guess.

Just a guess.  All right, Mickey, so how important, again...

SHERMAN:  Dan, it‘s Michelle...

ABRAMS:  Yes, sorry, yes, Mickey, Michelle...

(LAUGHTER)

ABRAMS:  Yes, sort of like what did Edie Lambert say, a guy named Sue. 

All right, go ahead.

SHERMAN:  Well that‘s what the witness said.  I don‘t think it‘s that big a deal I‘ve got to tell you.  There‘s a million reasons...

COLWIN:  Oh my God...

SHERMAN:  ... you could put a car into somebody else‘s name—insurance purposes, God knows what.  Also he knew he was being tracked by every booker and assistant producer within a five million mile radius and they could maybe located him up with his vehicles.  I just don‘t think it proves a heck of a lot.

ABRAMS:  Dean.

JOHNSON:  Yes, well like everything else.  You know, every other fact in this case can be spun by the defense if you look at it in isolation, but put it all together, he‘s using his mother‘s name to buy a car.  He‘s got his brother‘s I.D. in the car, $15,000 cash, all of that stuff.  You put it all together and it starts to look very suspicious.  It starts to look like this guy is making a run to the border and indeed, when you put that together with the fact that his wife and son‘s body just washed up on the side of the bay and he‘s 400 miles away and doesn‘t even make a cell phone call to find out if indeed it‘s his wife and his son, starts to look pretty bad.

ABRAMS:  Isn‘t the problem, Mercedes, is that you know yes, each item you can look at it by itself and look at it in a vacuum and say if that‘s the only piece of evidence they had, they‘d have nothing...

COLWIN:  But we can do...

ABRAMS:  Sure, we can do it all we want...

COLWIN:  ... a point counterpoint, $15,000...

ABRAMS:  Right.

COLWIN:  ... to start a new life, not enough money...

ABRAMS:  For what...

(CROSSTALK)

ABRAMS:  For what...

COLWIN:  It‘s not enough money to start a new life...

ABRAMS:  Well I‘ll tell you there are a lot of people out there...

(CROSSTALK)

ABRAMS:  Wait a sec.  There are a lot of people out there who will tell you pretty accurately that $15, 000 to most people in cash in this country is a lot of money.

COLWIN:  But not enough to start a new life though Dan, but we can go through...

ABRAMS:  What kind of life...

COLWIN:  ... changed appearance—I mean to start a whole new life to escape what would be what he‘s going through now.  Of course it would take a lot more money than $15,000.  But look at the change of appearance.  I can‘t agree with Michelle enough when we look at this case...

(LAUGHTER)

COLWIN:  ... because frankly he was surrounded and you see these clips...

ABRAMS:  I agree that‘s not that powerful...

COLWIN:  ... he‘s trying to get his luggage, when he‘s walking out.  I mean he is constantly...

ABRAMS:  I agree...

COLWIN:  ... surrounded by paparazzi.  Changed appearance...

ABRAMS:  Yes...

(CROSSTALK)

ABRAMS:  ... the changed appearance I agree with you is not that significant...

COLWIN:  The Viagra I think he‘s got a problem with, like what he is doing with this Viagra, but who knows.  But frankly, if you go through point through counterpoint and I think that‘s what Geragos has to do in closing argument, that‘s what this case is going to (UNINTELLIGIBLE) at closing argument because Dean‘s right...

(CROSSTALK)

COLWIN:  ... if you go through and marshal all this evidence Geragos has to go through each and every item and say there‘s an explanation for each one of these items.  Let me walk you through it...

ABRAMS:  You know Dean everyone keeps saying the case will be decided in closing argument.  I‘ve sort of agreed with that in the past.  The more I think about it, the more I think these jurors probably already have their minds made up.

JOHNSON:  I think some of them have their minds made up and I think no punt intended, the tide has definitely turned in favor of the prosecution in the last few days.  But we have to remember the defense has not put on yet one shred of evidence and we‘re still having these debates about reasonable doubt.  And the big problem, the big problem that the prosecution has is that they have not connected up the dots for us ever in this case, prelim trial...

ABRAMS:  Yes.

JOHNSON:  ... or anywhere else.  They need to pull it all together...

ABRAMS:  All right.

JOHNSON:  ... and tell us their story.  We can do it in our heads, but they need to do it for this jury...

ABRAMS:  We‘re going to take a quick break here.  When we come back, remember the prosecution is almost finished with its case.  Edie Lambert went back into court.  She‘s going to come out and tell us what‘s happened, how close are they, are they done?

And later, why shouldn‘t federal judges have the power to increase criminal sentences based on things like the amount of drugs or the brutality of the crime?  Many expect the U.S. Supreme Court to say can‘t do it as they take on that case and many others—kick off their term today.  Kenneth Starr and Arthur Miller join us to talk about it.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

JIM BRAZELTON, STANISLAUS COUNTY DISTRICT ATTORNEY:  He puts himself in that location within a short distance of where the bodies were found at the time that they disappeared.  It—that seems to be a fairly significant piece of evidence.

(END VIDEO CLIP)

ABRAMS:  Fairly significant may be the understatement of the year.  That is the D.A. talking last year, about the evidence that they‘ve been discussing in court.  The big piece of evidence, of course, the expert saying he believes the bodies were dumped in the San Francisco bay exactly where Scott Peterson says he was fishing.

Edie Lambert has been back inside the courtroom.  Edie, what‘s been going on and what‘s to come?

LAMBERT:  Court has ended for the day.  They went into an evidentiary hearing so they will be back in the morning.  The judge says there are now two or three more prosecution witnesses to go.  The prosecutors will definitely rest their case this week.  We are still waiting to hear from Heather Richardson.  She‘s a close friend of the Peterson‘s, the wife of the best man who testified today.

And also the Modesto police investigator who went through Scott Peterson‘s Mercedes at the time of his arrest to detail all of those things for the jury, from camping equipment to Viagra—all the things that they found on April 18 of last year.  Now I was able to speak with a source close to the defense.  They are expecting to start their case on Tuesday.  It should go for about two weeks.

One of their most important witnesses will be someone to talk about the age of baby Conner.  The prosecutor‘s best witness was able to place that baby at about 33 weeks old.  That was as pregnant as Laci was when she disappeared.  If the defense can convince the jury that the baby was older, that may clear the case for them because at that point, Scott Peterson would have been under surveillance.

The defense is still deciding whether to call Boyd Stephens.  He‘s a former medical examiner for the city and county of San Francisco and considered an expert in what happens to a human body in the San Francisco Bay.  Now he was consulted by Modesto police who told him—he told them that he, in his opinion, he didn‘t think a body would be held down by four eight-pound concrete weights and that bodies can travel a great deal of distance in the San Francisco Bay—again, the defense still deciding whether to call him.

We also expect to hear from friends and family of the Petersons who can maybe offer some innocent explanations to some of the evidence we‘ve heard so far.  And Dan, of course, I have to correct a quote.  Guy named Sue is boy named Sue.  I should know my Johnny Cash references...

ABRAMS:  Yes, yes...

LAMBERT:  ... just to set the record straight on that one.

ABRAMS:  All right.  Yes.  All right.  Edie Lambert thanks very much.  You know, and of course, there‘s still Scott Peterson‘s going to take the witness stand, right, to defend himself?  Not.  All right.

SHERMAN:  Dan...

ABRAMS:  Go ahead, Mickey...

UNIDENTIFIED FEMALE:  ... never put him on the stand, Dan...

SHERMAN:  I would not—I‘ve got to tell you I wouldn‘t count that out...

ABRAMS:  Oh, come on, Mickey...

SHERMAN:  That‘s a possibility.

ABRAMS:  There is a zero percent—what odds do you want Mickey?  You can have any odds you want.  Scott Peterson...

SHERMAN:  OK...

ABRAMS:  ... is no way, no how, taking the witness stand.  I will apologize to Mickey Sherman and describe—here‘s what‘s going to happen.  If Mickey‘s right, I will go on the air and say Mr. Mickey Sherman is the greatest, finest legal commentator there has ever been in the history of television.

SHERMAN:  Right...

(CROSSTALK)

COLWIN:  I think, you know, I have an objection to that, Dan.

ABRAMS:  All right.  No.  If Mickey is right about this, he gets that honor and he will forever—I‘ll put a plaque...

SHERMAN:  And I want you to wear a dress...

ABRAMS:  I‘ll put up a plague—yes.  Great.  Yes...

(LAUGHTER)

ABRAMS:  And I‘ll put up a plaque behind me on the air.  All right.  Bottom line, though, Dean, we‘re getting near the end of the case here.  If this is a hung jury, as so many people are predicting, don‘t you think at this point that would be a victory for the prosecutors?  They could start all over again, Geragos wouldn‘t want to do the defense again, too expensive.  Wouldn‘t this be a win for them?

JOHNSON:  Well I don‘t know if you would call it a win.  But certainly if they had to do it over again, I think you‘d see a different line-up of prosecutors, possibly a different line-up on the side of the defense and prosecutors always win the re-trial.

ABRAMS:  Mercedes, I say it would be a victory for prosecutors at this point, to get a hung jury, be able to start again, start anew, do it better, you won‘t have Geragos on the other side.

COLWIN:  That‘s exactly right.  I mean, and you‘re right about Geragos.  He‘s got lots of trials lined up.  In all probability, he won‘t even be the defense attorney the next try around.  And I think Dean is right.  They‘re going to have to shake it up.  They‘re going to have to shorten this trial.  They cannot go as long as they did this time around...

(CROSSTALK)

COLWIN:  ... they are going to start with a story—let‘s start with a storyline first instead of...

ABRAMS:  Yes.

COLWIN:  ... what Laci was wearing that day, was she walking the dog, not walking the dog, taking yoga classes.  I mean it‘s ridiculous.  It‘s all over the place.  Start with your story, fortify it at the end and let it go.  Keep it simple stupid—kiss.  That is the principle underlying, great trial advocacy.

ABRAMS:  All right.  Mercedes, Dean, Mickey, Mickey the plaque ready. 

Thanks.  Coming up...

COLWIN:  The dress should be ready, too, Mickey...

ABRAMS:  The dress—I‘m not agreeing to any dress.  All right.  I‘m agreeing to put up a plaque about Mickey Sherman behind me for one program if he is right.  All right...

(CROSSTALK)

ABRAMS:  I‘ve got to go.

COLWIN:  Thanks Dan.

ABRAMS:  Thanks.  Appreciate it.  Good to see you guys.

JOHNSON:  Thanks Dan.

ABRAMS:  Coming up, your e-mails on the Peterson case and what one of my viewers thinks of the single Scott Peterson and what happens if he‘s released from prison.  Your e-mails abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  I‘ll respond at the end of the show.

And still ahead, the U.S. Supreme Court is in session, deciding on cases like whether the government should be able to take your house so a private company can build a hotel and should pot ever be legal?  We‘ll ask Kenneth Starr and Professor Arthur Miller how the court will rule on those and other controversial issues on the docket.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, should Americans be allowed to smoke pot in their homes and should 16 or 17 year olds be eligible for the death penalty if they‘ve committed the worst of crimes?  The U.S. Supreme Court‘s back in session.  And two of the country‘s great legal minds tell us how the court will likely rule, but first the headlines.

(NEWS BREAK)

ABRAMS:  We‘re back.  You can love or hate its decisions, but few institutions have as much impact on people‘s lives as the U.S. Supreme Court.  And with the court starting its session today, the justices have started hearing cases that will determine everything from whether the government can take your home away from you for a price, to allowing the death penalty for teenagers, to letting patients or the doctor‘s prescription smoke pot at home.

We‘ve selected five major cases on the court‘s docket and we‘re going to talk about what is at stake and how the court will likely rule with two of the nation‘s greatest legal minds.  Ken Starr is dean of the Pepperdine University Law School, a former Solicitor General, federal appeals court judge, and independent counsel in the Whitewater case.  Dean Starr has argued 25 cases in front of the U.S. Supreme Court.

Arthur Miller is the famed Harvard Law professor and an expert on among other things and he‘s just an expert on just about everything, privacy rights, litigation and legal procedures.  Professor Miller has argued four cases before the high court.  All right.  So the court kicked off its session today with a case that could have a powerful impact on criminal sentences.

The issue—should federal judges have the power to increase criminal sentences based on information a jury never heard?  Federal sentencing guidelines now allow judges to use other information, like the brutality of the crime, the amount of drugs found, lack of remorse, to increase a criminal sentence.  Last June, the court ruled 5-4 that similar guidelines in Washington State were unconstitutional.  Why?  Well, they said jurors should decide any matter that can lengthen a sentence for the defendant.  But they said that the judges cannot do it alone.

All right.  Professor Miller, Dean Starr, you both agree to some qualification that the court will strike down guidelines that allow judges to increase sentences.  All right.  Professor Miller, let me start with you.  People are going to say why shouldn‘t they be able to increase sentences up to a statutory maximum, you know, because a jury finds them guilty, the judge has a little bit of leeway.  What‘s the matter with a judge saying I want to be able to increase it?

ARTHUR MILLER, HARVARD LAW PROFESSOR:  Well, I think it goes back to our commitment to jury trial.  I know that‘s controversial in this day and age.  But as long as there‘s a jury trial provision for criminal cases and the court has already struck down the Washington law, what‘s good for the goose is good for the gander and it should apply to federal judges as well.

ABRAMS:  But didn‘t—Dean Starr, didn‘t the court in a previous

decision, on this issue, say look this just applies to Washington.  I‘m not

·         we‘re not talking about the federal sentencing guidelines and yet they threw the entire system into a mess.

KEN STARR, PEPPERDINE UNIVERSITY LAW, DEAN:  They did say it applies just to Washington.  But the principle that Arthur rightly points to is the principle that‘s been driving this court now for several years.  They believe in the right of juries.  That this is a very profound and important basic constitutional right and they‘ve been voting in favor of it.

ABRAMS:  So does this mean the end of the federal sentencing guidelines?

STARR:  I don‘t think...

(CROSSTALK)

STARR:  I‘m sorry.  I don‘t think it necessarily means the end of them.  But obviously we have to see what the court is going to do.  But I think it is going to mean a considerable revamping of the way federal sentencing has been conducted over these past 18 to 20 years.  I think it is going to be significant.

MILLER:  We‘ve got total disarray right now, Dan...

ABRAMS:  Yes.

MILLER:  ... total chaos.

ABRAMS:  Yes.  Yes, well because all these judges out there were thinking that they had a system in place and it sounds like the court is saying the system doesn‘t apply.  Doesn‘t work.  It‘s not constitutional.  All right.  Let‘s move on.

Courts also looking at a case that could affect everyone who owns a home.  At issue here, should the government have the power to take away private property, like a home, without permission of the owner, that‘s what we‘re talking about, if they pay for it and if the goal is to, let‘s say, benefit the community?  Now local governments already have the right to condemn like rundown properties that are—quote—“ blighted or neglected” if the land is for use for the public.

But the city of New London, Connecticut wants to condemn some homes against the owner‘s will, buying them up so the land could be turned over to a private developer.  That plans to use the area to build a hotel, office, retail complex.  New London claims the new development would help the whole city by creating more jobs, more tax dollars, but taking away homes some people have owned for many, many years?

So, how will the court rule on this one?  Dean Starr and Professor Miller you both agreed the court will say no to the question when it‘s asked to allow government to condemn homes for commercial property development.  Professor Miller, what is the bottom line?  I mean is the government allowed to take homes in other kinds of cases?

MILLER:  Sure.  If you want to build a highway or a municipal hospital or some form of governmental institution.  But this is just too open ended.  What‘s good for the community is just too subjective and too subject to abuse.

ABRAMS:  And that‘s the problem, right, Judge Starr, I mean...

STARR:  No, that‘s exactly right.  This is—let‘s take your house because we want a Wal-Mart here.  That just can‘t be right.  You might love Wal-Mart, but you are not going to take someone‘s home and this is an extremely sympathetic set of facts with the couple.  There is an elderly couple whose case is now before the court who have been living there for literally decades and all of a sudden, they‘re saying, you know, move out.  This just goes too far and I think the...

ABRAMS:  Any chance the justices will say on this one, they‘ll go the other way on this?

STARR:  There‘s always a chance, but I don‘t think so given the fact that the court took the case at the request of the property owners and the facts, I think, are just so overwhelming.  It looks as if New London has just gone too far.

ABRAMS:  All right.  Quickly, Professor Miller, you want to make...

MILLER:  I was just going to add on that hopefully the court will give some guidance as to what is a legitimate public use.  It‘s a big question throughout the country.

ABRAMS:  Issue three.  The court is going to consider whether some people should be able to use marijuana for medicinal purposes, patients suffering from diseases like cancer, M.S.  At issue, whether patients whose marijuana use is approved by a doctor should be allowed to grow and smoke it at home.

The case was brought by a California woman who says using marijuana is the only way to relieve serious symptoms from her long-term illnesses and while California permits the use of medicinal marijuana federal law doesn‘t.  So question—can the federal government tell the states too bad.  You can‘t ever allow the use of marijuana.

As for what the court will likely do, you both said no when asked will the court let medical patients use marijuana where states allow it.  Why not on this one, Dean Starr?  Why not just say, you know what, if the states want to allow it, they should be able to write their own laws in this regard, instead of having to obey the federal government?

STARR:  Well, this court does tend to be pretty sympathetic to the rights of the state and has been pretty protective of the ability of the states to governor their own affairs.  But here we have the drug laws and the federal drug laws are very clear on this and there certainly is a national market and the international market in marijuana.  And while these facts are very, very impressive and they are very sympathetic in terms of the needs of the individual patients involved, still the court has held going back to the new deal that Congress, if it sees fit, has the power to regulate very local kinds of commerce.  I don‘t think that they‘re going to stray from that course.

ABRAMS:  Professor Miller, a close call on this one?

MILLER:  I think it‘s a very, very close call.  But Ken is right. 

Feds are the 800-pound gorilla and the states are only 400-pound gorillas.  But this is so incredibly, incredibly sympathetic.  It‘s conceivable the court will say well, marijuana plants don‘t have wheels.  They don‘t generally move in interstate commerce and maybe Congress is regulating a bit too much.  But I suspect, as does Ken, that this is one where the feds trump.

ABRAMS:  Dean Starr, Professor Miller, stay with us.

Coming up, another controversial case.  The justices decide whether it‘s cruel and unusual punishment to execute someone who was under 18 when they committed a crime.

And is keeping black and white inmates segregated for their first months in prison unconstitutional?  Opponents argue it prevents gang violence.  One black inmate says it‘s just plain racist.  And Judge Starr is arguing one of the big cases in front of the court too.

And lots of you writing in with your take on what John Kerry and George Bush said with their body language in the first debate.  We‘ll get to your e-mails...

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  We‘re going over some of the major cases in front of the U.S. Supreme Court, starts its fall session today and we‘re talking about these cases with two of the nation‘s sharpest, most experienced legal minds, Ken Starr, dean of the Pepperdine University Law School, former Solicitor General and Professor Arthur Miller of the Harvard Law School.

All right, so another big case involving the death penalty.  At issue, should the death penalty be an option for 16 and 17 year olds convicted of a capital crime?  A little history here.  In ‘89 the court ruled capital punishment for 16 and 17 year olds didn‘t add up to the cruel and unusual punishment, banned in the Constitution.  But since 1988, the court found that 15 was too young.

Then in 2002, four justices on the court publicly called executing juveniles a shameful practice while abolishing the death penalty for offenders who are mentally retarded.  So how will the court rule here?  We have agreement when asked if the court will permit the death penalty for 16 or 17 year olds of a capital crime.  Both said no.  Dean Starr, they‘re going to overturn their own opinion without any major change.  They‘re just going to say you know what, we were wrong.

STARR:  No, I think what they‘ll say is that society‘s attitudes have changed.  The laws have been shifting.  Congress has passed a law, for example, that limits the execution of juvenile offenders.  Obviously, our allies and the court has been willing in the last two years to now look at international experience what do other countries do.

It‘s very controversial in constitutional law, but the court is doing that.  And the evidence is pointing all in one direction.  There are even some states who have weighed in with the court saying this should not be permitted given our values as a civilized society.

ABRAMS:  And Professor Miller, that drives some people crazy.  The idea that our court is looking to Europe and these other countries for guidance on sort of what the international opinion is.

MILLER:  Well, we live in a global environment and there‘s no doubt that we are at the outer edge in terms of capital punishment.  This is one of those things, Dan, where the court can give up the short yardage.  There are very few of these cases and as Ken has indicated, most of the norms around the country and internationally would say don‘t execute 16 year olds, 17 year olds, et cetera.  So I think the court can sweep this in under the precedent it sent recently in terms of mental incompetence...

ABRAMS:  Very quickly, Professor Miller, but what happens when that 17-year-old out there commits the most heinous crime ever imagined and goes on some murder spree, et cetera?  Court will—I mean people have to understand that the court‘s ruling is not based on a sort of what happened in a particular case scenario.

MILLER:  I think the answer to that is we take that kid and that kid never sees the light of day again, but we do not execute that kid.

ABRAMS:  Court will also consider a case involving another fundamental right, equal protection under the law.  At issue, should state prisons be allowed to segregate incoming prisoners by race for up to 60 days?  The case comes from California where state prison authorities have split up inmates entering the system by race.  They say it‘s so they can determine which prisoners already belong to a gang and whether prisoners might want to instigate racial violence.

As for how the court will rule, again, we have a consensus from our guests with some qualifiers.  Both Professor Miller and Dean Starr say yes, the court will allow prisons to impose some segregation among incoming prisoners.  I mean Professor Miller, isn‘t this one of those cases where if they start getting too detailed in what the prisons can and can‘t do, that they run into the danger of beginning to legislate.

MILLER:  No doubt about that.  No doubt.  But they can set down some guidelines that if you‘re going to engage in this type of segregation, it‘s got to be for the most minimal amount of time and for the most legitimate of reasons.  I think on this one, Dan, there may be an interesting division among the justices, with somebody like Justice Scalia not willing to accept law enforcement‘s position, but somebody like Justice O‘Connor saying I‘m a pragmatist.  This is necessary.  I‘ll give him the benefit of the doubt.

ABRAMS:  And very quickly, Dean Starr.  On all these cases, we may not see the sort of typical split that people are used to finding, you know, the conservatives versus the liberals, some of them, but not all of them, right?

STARR:  That is exactly right.  We certainly saw that last year in some of the issues involving enemy combatants, especially U.S. citizens.  Justice Scalia joined by Justice Stevens and they tend not to agree, agreeing that you just can‘t keep American citizens, United States citizens confined.  So I think you could see those kinds of very interesting breaks.

I think Arthur is exactly right.  You know we all take offense, and rightly so, at the idea of racial segregation.  We thought Brown v. Board of Education decided that a half century ago.  But prisons are different and if this were coming out of Alabama or another southern state, and I mean no offense, maybe it would be different.  But this is California and there is a very powerful record here that‘s impressive.  It‘s likely to impress the justices, but something has to be done.

ABRAMS:  Dean Starr, I‘ve got 30 seconds left.  I have done an editorial on this program supporting your position in another case that‘s in front of the court about shipping wine.  I have my wine collection and I can‘t get the wine delivered to me from California and it drives me bananas.  Will you explain in about 30 seconds what your position, the right position is?

STARR:  Because it is alcohol, states have the right to regulate and to regulate in ways that are fairly intensive.  But they didn‘t—they should not have the right to discriminate.  You live in New York.  New York allows wineries in western New York, on Long Island to direct ship to Manhattan or wherever in the state.  But they say to a California winery or to a Virginia winery, which is exactly the case that‘s before the Supreme Court, a woman who owns a winery in Middleburg, Virginia, so you can‘t ship to your customers in New York, even though New York wineries can, that‘s wrong.

ABRAMS:  Hear him out.  He‘s right.

MILLER:  Bravo.  As a card-carrying wino, Ken, I agree completely.

ABRAMS:  Dean Starr, Professor Miller, what a great team.  Thank you so much.  We really appreciate it.

STARR:  Thank you.

ABRAMS:  Coming up, why one of you says you relate to Scott Peterson‘s predicament with his wife.  I ask did your wife know you wrote that e-mail?   Coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, one of our so-called fair and balance competitors gets in trouble for what one of its political reporters wrote about John Kerry, but I‘m willing to let them slide on this one.  I hope they would do the same for me.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why Fox News and one of its reporters deserve a break.  A lot of you writing in about Fox mistakenly posting an article on its Web site by the political reporter Carl Cameron with made up quotes from Senator Kerry after the debate.  Jokingly, Cameron claimed Kerry had said, didn‘t my cuticles look great and it‘s about the Supreme Court.  Women should like me.  I do manicures and the whopper.  I‘m metro sexual.  He‘s a cowboy.

Fox News removed the article and issued an apology saying it had been written in jest.  It—quote—“should not have been posted or broadcast and it only made it on the Web site, they said, as a result of—quote—

“fatigue and bad judgment, not malice.”  I believe that.

Now some of you saying it shows Fox‘s true colors, so to speak.  That this is evidence that they‘re out to get Kerry.  Whether they are or not, this doesn‘t prove anything.  Reporters mock candidates all the time.  They just don‘t usually get published.  My concern is not about what Cameron wrote but about what may be a double standard.  If a CNN reporter or a reporter for any other broadcast network, CBS, ABC, NBC, MSNBC, jokingly wrote mocking quotes of President Bush, come on, Fox would have wall to wall coverage of how this demonstrates liberal bias.

As I‘ve said in the context of other media scandals, it is not always about bias.  Sometimes it is just in Fox‘s words, bad judgment, not malice.  I know a lot of people want to assume the worst but mistakes happen and when they do, it doesn‘t necessarily mean it was based on bias.  It just may mean that the reporter is human.

On this one I give Carl Cameron the benefit of any doubt.  I just wonder whether his network would do the same for me or anyone else.

I‘ve had my say, now it‘s time for “Your Rebuttal”.  On Friday we debated the debates.  Not what they said as much as how the candidates appeared including the candidates‘ reactions to each other.  I asked why is it that we all make judgments based on how they seem, more it seems than on what they said.

From Columbus, Indiana, Sandy Sherman.  “You asked why the gestures of the candidates are more looked at and talked about than the substance.  It‘s because it‘s the only real thing we hear or see.  Everything else is so scripted.  This is the only true response we get.  A picture tells us 1,000 words.”

Colleen Mahoney, “If our president looks angry or irritated when another world leader is attempting to explain his or her position, perhaps he limits our country‘s ability to be diplomatic.”

From Nashville, Tennessee, Marie Wicks.  “I think it‘s just another example of how image driven and shallow our society can be when we concentrate more on how President Bush and Senator Kerry were reacting nonverbally.”

The prosecution about to rest its case in the Scott Peterson case. 

Viewers still e-mailing their theories as to motive.

Peetie Birr, “He wanted out of the marriage not necessarily because of Amber Frey, but he just wanted to be free with his Viagra to schmooz women and he didn‘t want a divorce.  Why?  Child support for Conner and alimony for Laci for many, many years.”

John Gates not only sympathizes with Peterson, but can put himself in Peterson‘s shoes.  “I‘m in the same boat as Peterson.  If the cops were looking for who killed my wife I would have tons and tons of evidence against me.  Except for no dead body, no dead wife, just too much bad behavior.”

And you‘d have a point if this case didn‘t include the fact that his wife‘s dead body washed up 90 miles from their home exactly where he said he went fishing and that he then lied and lied to just about everyone about a lot more than an affair, including about where he was that day.  By the way, does your wife know you wrote that note?

Finally, Scott Peterson not only a topic on the program about justice.  But Reno, Nevada, Alicia Swithenbank, “Yesterday at a singles club called Tahoe Singles, the topic of Scott Peterson was brought up.  And she went on to say she would never want a lying cheat like Peterson, but that Scott Peterson is a very handsome man who has probably captured the hearts of many women observing his trial and are willing to date and possibly marry him if he is freed.”

First, I‘m glad to see that Peterson is the topic of the day for Tahoe Singles and I‘m sorry to say I think you‘re right.  That in all these trials some needy people fall for the defendants.  I‘m certain that Peterson will be no exception.

Your e-mails abramsreport@msnbc.com.  Please include your name and where you‘re writing from.

Coming up next, “HARDBALL” with Chris Matthews.  See you on Wednesday. 

Special coverage of the debate tomorrow.

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