updated 10/13/2004 10:18:25 AM ET 2004-10-13T14:18:25

Guest: Mickey Sherman, Dean Johnson, Michael Cardoza, Marty Meekins, Dan Woods, Jeffrey Addicott, Nadine Strossen, Matthew Staver

DAN ABRAMS, HOST:  Coming up, the Scott Peterson defense was scheduled to begin today.  Defense was to start—the judge postponed the trial until next week.  What happened?  Our surprise are surprise defense witnesses to blame? 

And a gay Republican group files a lawsuit to end the military‘s “don‘t ask, don‘t tell” policy saying it‘s just an excuse for discrimination.  The military says there are good reasons for the policy. 

Plus, the U.S. Supreme Court will now decide whether the Ten Commandments belong in courthouses or on government property.  These programs about justice starts now. 

Hi, everyone.  First up on the docket it was supposed to be the first chance for Scott Peterson defense team to put on witnesses, to maybe tell jurors about the real killers.  But then at 9:45 this morning the judge emerged from chambers and announced there was a delay.  Not just a delay, but no court until next week?  NBC affiliate KCRA reporter Edie Lambert was in the courtroom. 

Edie, what happened? 

EDIE LAMBERT, KCRA REPORTER:  My understanding, Dan, is that the problem centers around reports that were recently handed over from a concrete expert to the defense and to the prosecution.  Prosecutors told the judge this morning they needed more time to go over those reports, so the judge gave them the extra time. 

I can tell you that a concrete expert was all set to testify this morning.  Steve Gebler flew in from Chicago.  Now he‘s been ordered to fly back next Monday.  At issue is what Scott Peterson did with an 80-pound bag of cement mix.  Prosecutors say he made a series of concrete anchors and used them to weigh down his wife‘s body in San Francisco Bay.  The defense argues he used that cement mix to do home improvement projects, mostly on his backyard. 

Now, Judge Delucchi apologized repeatedly to the jury as he informed them and broke the news about delay.  Many members of the jury looked pretty glum as you can imagine, they‘ve been here 4.5 months now.  But the Judge Delucchi also offered some light at the end of the tunnel.  He told them they would start deliberating this case November 3, which is just over three weeks from now.  And of course, Dan, that also tells us something about the rebuttal case.  We can probably expect a very short one.  Back to you. 

ABRAMS:  All right.  Edie Lambert, thanks very much. 

Joining me now, criminal defense attorney, Mickey Sherman and two attorneys who have been inside the courtroom, Michael Cardoza and a former San Mateo county prosecutor, Dean Johnson. 

All right.  You know, what I don‘t get, Dean is new reports that are suddenly coming out now from this concrete expert.  I mean this trial has been going on months, case going on for years.  What could possibly be new? 

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Well, this is kind of shocking, but it has been par for the course in this trial.  Usually, of course, the prosecution coming up with new reports and new witnesses, Now the shoe is on the other foot.  And with this very first witness, we is have a cement expert who presumably was somebody that had been announced a long time ago, and holds sheaves of reports the prosecution wants to see to prepare for the cross-examination.  This has to be enormously frustrating for the jury charged with deciding a capital case. 

ABRAMS:  Michael, what kind of new reports can we be talking about here? 

MICHAEL CARDOZA, CRIMINAL DEFENSE ATTORNEY:  Well, certainly experts prepare reports right at the beginning when they‘re engaged and after they look at all the evidence, and then at the end, after hearing the prosecution‘s expert, they begin preparing another report, per chance, in this case.  But, the other issue, I think, is that the defense added a financial expert to their list of witnesses.  I think that witness is the one that really threw the district attorney off.  And they said they weren‘t prepared for that, they really needed time to dig into that financial expert‘s report and testimony.  So in part, yes, the concrete expert, but I think it‘s mostly because of the new financial expert that may come in and testify. 

ABRAMS:  You know, Mickey, the fact that this court has had all these delays, I mean, and not just like, you know what?  Take the afternoon to look this over.  But you know, take the rest of the week, or taking the week—it happened during Amber Frey‘s testimony.  It‘s happened a number of times in this case.  Is the judge to blame or is that unfair? 

MICKEY SHERMAN, CRIMINAL DEFENSE ATTORNEY:  It‘s probably unfair.  The judge is trying to weigh things.  He‘s trying to weight the interest of a speedy trial, as to whether or not this man is going to get a fair trial, and of course the rights of the victims, as well.  But, you know, I just think—I don‘t see why a whole week, why five days, for the prosecutors to check out a report by a concrete expert.  I mean granted they should have some leeway, but I mean—you know, when this trial started, the Dead Sea was still sick.  This is too long, they should not be...

(COMMERCIAL BREAK)

ABRAMS:  Maybe Michael‘s right.  That they got more to deal with than just concrete, that there are a couple of experts.  Here‘s what Scott—

Scott Peterson said to Laci‘s brother about some concrete, caught on tape. 

(BEGIN AUDIO CLIP)

BRENT ROCHA, LACI PETERSON‘S BROTHER:  Uh, and then they talked about cement in your uh, shop that‘s used for uh, I don‘t know, anchors or something?

SCOTT PETERSON, ACCUSED:  Yeah, I made a boat anchor with some cement and then I put some in the driveway here, yeah.

ROCHA:  So, they‘re just piecing all this together?

PETERSON:  Piecing together.

ROCHA:  Circumstantial.

PETERSON:  Well, I mean there‘s the cement, yeah.  The police has asked me a lot about that.

(END AUDIO CLIP)

ABRAMS:  Scott Peterson, of course, saying that—innocent explanations as to where that cement went.  The prosecution trying to say the cement was used to make anchors to weigh Laci‘s body down. 

We also learned about the schedule today, though.  It sounds like the judge wants closing arguments November 1 and November 2.  Dean, that means that this judge wants closing arguments on Election Day? 

JOHNSON:  Well, that‘s the first thing that we noted.  And this judge, apparently has had a change of heart about moving this case along.  He said now, from now on, no more dark days on Fridays.  We‘re going to go Monday through Friday.  And it does sound like, from what he‘s heard, that he thinks that this is going to be a rifle shot defense, focused on certain key points, and he doesn‘t care.  He wants this to—this jury to get this case as quickly as he possibly can. 

ABRAMS:  You know, Michael, I‘ve been somewhat critical of the judge for, I think, delaying too many times, not taking control quite enough in this case, although he‘s gotten mostly positive reviews.  Election Day, don‘t you think that is a sort of day, in this environment, that the judge should say, you know what?  You get the day off? 

CARDOZA:  You know, I got it tell you, this is the death penalty case.  I think, we have to all keep that in mind.  And certainly Peterson‘s entitled to a fair trial, the victims are entitled to a fair trial.  The court‘s not even looking at Election Day.  They‘re saying, within the four walls of this trial, we‘re going to go on.  He may give the jury a little bit off that day in order to vote.  But I tell you, that‘s not his primary concern here.  He‘s sort of between the rock and the hard place. 

ABRAMS:  Yeah.

CARDOZA:  If—you know, we criticized him for delaying...

ABRAMS:  No, that‘s fair.  Yeah that‘s true. 

CARDOZA:  So, how does he win? 

ABRAMS:  Yeah, no, that—that‘s true, except that Mickey, I would

just think that—and that‘s why I wanted to be honest at the outset about

what I‘ve been saying about this judge.  But I don‘t know, it seems to me -

·         you know, you can move the trial along, but boy, when it comes to Election Day, it would just seem that—you know, aren‘t generally courts closed on Election Day? 

SHERMAN:  No. Election Day means nothing at the courthouse.  It‘s like a non-event.  People can vote before they go to court or after they go to court.  You know, as my brothers point out there.  This is a lot more important than Election Day to these people involved in the trial.  And you know, the problem is, Dan, is with the delays, who gets blamed for that.  That‘s when it becomes important, do they blame the state or do they blame the defense? 

ABRAMS:  All right.

CARDOZA:  You know, Dan.

ABRAMS:  Go ahead, Michael.

CARDOZA:  You know, what I find real interesting, I mean, I was a district attorney for a long time.  I practiced when there was no discovery coming from the defense to the D.A.  and I‘m telling you, the defense would pop witnesses on the stand where we, as district attorneys would go, who‘s this guy?  What‘s he going to testify to?  So, I got to tell you, I got to giggle when they say, “Gee, we need a week to read this report in order to get ready to cross-examine.”  I think the old-time attorneys would look at them and go, “Come, on.  Bring ‘em on.  Let me cross them.” 

ABRAMS:  If that‘s the reason, if they are suggesting that they need a week to go over new reports, you know, they deserve to be criticized. 

CARDOZA:  I agree with you.

ABRAMS:  We just need to figure out—we need to figure out exactly -

·         you know, what was the reason behind a one-week delay.  Let me take a quick break.  When we come back, we‘re going to talk about what the defense has actually got in through cross-examination already, what they may still have to try and bring in later in the case?

Also, it was a landmark moment for the U.S. military, President Clinton signed the “Don‘t Ask, Don‘t Tell” policy in the law allowing gay and lesbian Americans to serve as long as they didn‘t tell.  But now, a pro-gay republican group files a lawsuit to end it.  Hear from the attorneys taking on the case. 

A U.S. senator from Minnesota closes his Washington, D.C.  Office immediately.  This just happened.  Said he won‘t reopen it until after the presidential election.  Why?  He said, a terror briefing that makes him believe it is not safe at the capitol. 

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

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Is that correct, Mr. Peterson?  You‘re pleading not guilty to the two charges of murder plus the—denying the special allegations? 

PETERSON:  That‘s correct, your honor.  I‘m innocent. 

(END VIDEO CLIP)

ABRAMS:  And then Mark Geragos in his opening statement said, the following: 

“The evidence is going to show clearly, beyond any doubt, that not only was Scott not guilty, but stone-cold innocent.” 

Mickey Sherman, is he really going to show that? 

SHERMAN:  Well, he‘s going to show that they haven‘t proved their case. 

ABRAMS:  But that‘s not what I asked.

SHERMAN:  And that‘s the same thing. 

ABRAMS:  Is it really the same thing?  Stone-cold innocent is the same thing as not proved the case? 

SHERMAN:  Well, it depends how much faith the jury has in the lack of the state‘s case.  Well, you know, I don‘t think that‘s a bad thing to say.  I (UNINTELLIGIBLE) on Mark Geragos for saying that because we always are accused of—you know, just beating the case, skating by, hiding behind the concept of reasonable doubt.  And what he‘s trying to say is, he didn‘t do it and you‘re not giving him a break by finding him not guilty.

ABRAMS:  He‘s saying it, but is he going to prove it?  But he‘s saying it, but is he prove it?  I mean saying it‘s one thing, proving it‘s something else.

SHERMAN:  He doesn‘t have to prove anything; all he has to do is sit back and watch them not prove it. 

ABRAMS:  I know, I know.  But, he set the bar higher. 

Now let me—um, Michael Cardoza, I want to read you a quote, and let me know if you think that this is going to be one of the issues the defense is going to deal with. 

Quote:  “Even though it‘s circumstantial evidence case, the most damming piece of circumstantial evidence comes out of his own mouth and his own hands, when he hands the police that receipt from the very location where two miles away she was found.  I mean, that is just a devastating thing.”  Of course, those words from Mark Geragos himself on “Larry King Live” April 18, 2003.  Are they going to respond to that issue?

CARDOZA:  Sure, they‘re going to have to respond to that issue, I mean, they‘ll put on their scientific-ish evidence, they‘ll start with the photographer, they will put a gynecologist on, they‘ll put a coroner on.  I think the coroners actually, believe it or not, going to deal with that issue.  And I tell you what, this whole case comes down to one fact—

Peterson admits being in the Berkeley Marina, that‘s where the body was found.  If you believe that that proves beyond a reasonable doubt he‘s guilty, then he is going to get convicted.  But that‘s the only real evidence they have in the case. 

ABRAMS:  But, Mike, do you think they‘re going to specifically—well, I mean, I understand they will bring other witnesses to essentially say, Scott couldn‘t have done it for other reasons. 

CARDOZA:  Certainly.

ABRAMS:  But do you think that they will call specific witnesses to say, for example, well you know what?  Maybe they weren‘t found as close to where Scott said he went fishing.  Or will they just accept that as a given and move on.

CARDOZA:  Well, I think what they‘re going to do, Boyd Stevens, the coroner of San Francisco, has said, and gone on the record saying that bodies in the bay can travel as much as five or six miles in one day. 

ABRAMS:  Will they call him?

CARDOZA:  Pardon me?

ABRAMS:  Are they going to call him? 

CARDOZA:  No, I don‘t think they are going to call him, but the way they‘ll get that in, they‘ll put their own coroner on and that coroner will have talked to Boyd Stevens and will rely on Boyd Stevens‘ opinion to bolster his own opinion.  That‘s how they‘re going to get that evidence in, and that‘s how they will deal with reasonable doubt there.  Because, those bodies only went a mile-and-a-half to two miles.  You got to believe they stayed there four months?  You know, that‘s going to be an interesting thing for a jury to have to accept that he dropped the bodies in the bay and they stayed in the area for four-and-a-half months. 

ABRAMS:  Really?  Dean, really that hard to believe? 

JOHNSON:  No, it‘s not hard to believe at all, and that‘s not what Boyd Stevens says.  What Boyd Stevens has said is that “in some cases, a body can travel as much as five-and-a-half miles in the bay.”  He has not said that in every case, all bodies travel five-and-a-half miles.  But that‘s not the central point of this case.  Mark Geragos could fulfill his promise to the jury to prove Scott Peterson stone-old innocent simply by getting this jury to believe the baby Conner lived beyond December the 24th.  That‘s the central fact.  If that‘s true, if the jury believes that‘s true, then Scott Peterson could not have done it, and Mark Geragos is going to make the point, look, we can prove Scot Peterson innocent.  We don‘t have to prove somebody else guilty to do that. 

ABRAMS:  Here‘s what—here‘s what Mark Geragos said May the 5th, 2003, when he took on this case. 

(BEGIN VIDEO CLIP)

MARK GERAGOS, SCOTT PETERSON‘S ATTORNEY:  We set the bar extremely high, and that‘s to prove that Scott is not only factually innocent, but to figure out exactly who it is did this horrible thing to Scott‘s wife and to Scott‘s son and to their grandson. 

(END VIDEO CLIP)

ABRAMS:  Mickey, no way that he‘s going to actually tell us who did this, right? 

SHERMAN:  No. But he‘s going to, basically, perform what has come out in the states case, oddly enough, it could have been this person, it could have been that person.  How about the D.A.  who was threatened?  How about this person?  Let the jury figure it out, let the jury have the buffet table of other suspects.  Mark only has to kind of put it out there.  And as long as it‘s somewhat credible it may be effective.  If it‘s incredible, then he‘s doing a disservice. 

ABRAMS:  In the defense...

SHERMAN:  But he won‘t go that route.

ABRAMS:  The defense got in a lot through the state‘s case.  We just put a little list together.  Some—they put in other possible abduction theories; they talked about Peterson‘s other affairs, and essentially saying why would he want to kill for Amber Frey—kill for Amber Frey suddenly; the police missteps; they talked about how Peterson was cooperative to police; that they claim he has no strong financial motive to do this; that Laci might have known about Peterson‘s boat, that prosecutors say was this secret boat no one knew about; and that Laci may have known about affair with Amber, according to the defense; that Laci might have visited Peterson‘s warehouse; and they have possible—they offered possible explanations for Peterson‘s erratic pre-arrest behavior. 

You know, Michael Cardoza, the defense has really presented most of their case already. 

CARDOZA:  They really have presented most of their case already.  But they will refute the scientific evidence, they will put the parents on—one or other of the Peterson‘s to explain why he changed his appearance, because remember, looming out there are the death threat letters against him, they‘ll call some police officers back to clear some things up.  The $64,000 question, will they put Peterson on the stand. 

ABRAMS:  Come on Michael, you and I talked about this before. 

(CROSSTALK)

CARDOZA:  Wait! Whoa! Whoa! Wait.  Wait a minute, you probably end up being correct, that they won‘t put him on the stand...

ABRAMS:  So it‘s not the same...

CARDOZA:  But, they haven‘t made that decision. 

ABRAMS:  Yes they have, of course they have. 

CARDOZA:  No they—OK.  You and I will go to our death...

(CROSSTALK)

ABRAMS:  We will, we will—they have decided this, they know there‘s no way he is taking the witness stand and they want everyone to believe that Scott is sort of...

(CROSSTALK)

ABRAMS:  Scott is wrangling over this decision, and they‘re discussing it, should he or shouldn‘t he.  Quickly.

CARDOZA:  Say their defense falls apart completely. 

ABRAMS:  But it won‘t, because as we just pointed out they‘ve already presented most of their case. 

CARDOZA:  Dan, I‘ve tried enough cases to know. 

ABRAMS:  I don‘t care, it doesn‘t matter how many you‘ve tried, Michael.  That means nothing.  Look, Dean Johnson tried a lot, too. 

JOHNSON:  Michael.

ABRAMS:  Hey Dean, is he going to take the stand? 

JOHNSON:  Michael, dinner at the restaurant of the winner‘s choice. 

(CROSSTALK)

CARDOZA:  ...it‘s whether the decision has been made now.  And I‘m telling you, it hasn‘t been made yet. 

ABRAMS:  Dean, do you believe that for a second? 

JOHNSON:  Not.  Not for a second. 

SHERMAN:  Dan, don‘t count it out.  Don‘t count it out. 

ABRAMS:  All right.  Got to wrap it up.  Mickey Sherman—good panel

·         Dean Johnson, Michael Cardoza, good to see you guys. 

CARDOZA:  Take care.

ABRAMS:  I need to run, but thanks a lot.

Coming up the military‘s “Don‘t Ask, Don‘t Tell” policy drawing fire: 

A gay Republican group files a federal lawsuit saying it‘s time to end it. 

And the U.S. Supreme Court today announcing it will hear two cases that will determine whether it‘s constitutional to have the Ten Commandments on government property, an issue they have not addressed in over 20 years. 

(COMMERCIAL BREAK)

ABRAMS:  “Don‘t Ask, Don‘t Tell” is the catch phrase used to describe

the military‘s policy on dealing with gays in the military and it‘s pretty

much as vague as it sounds.  What it essentially means is you can serve in

the military as a gay serviceman or woman as long as long as you don‘t tell

anybody about your sexual orientation and you don‘t engage in homosexual

acts while in the military.  To those who call it discrimination, the

military says quote,

“The prohibition against homosexual conduct is a longstanding element of military law that continues to be necessary in the unique circumstances of military service.”

But now a pro-gay Republican group called Log Cabin Republicans has challenged the policy saying it violates several of the constitutional rights, they filed a complaint today in a California court.  The suit points to recent Supreme Court decisions; one where the majority said neither the court nor state can set boundaries on sexual or personal relationships and overturned a Texas law that made gay sex a crime. 

The Log Cabin Republicans say the so-called Lawrence decision and other decisions show the court has accepted constitutional rights of gay and lesbian Americans, and it‘s time for the military to accept it, as well. 

The suit says, quote:  “Based on the decision in Lawrence v. Texas that the fundamental right to privacy and liberties protect an individuals private, consensual acts and relationships with person of the same gender, the Policy and the DOD Regulations must meet a standard of heightened scrutiny.” 

My take:  I understand that many in the military don‘t want openly gay servicemen or women in the military.  And they say it could affect morale.  But at this particular time in history when there are already problems with recruitment, when Arab translators are being kicked out of the military academy because of their sexual orientation.  Even though the FBI and other government agencies are actively recruiting, looking for Arab-speaking people to fight the war on terror, I say our security‘s too important.  We don‘t need more reasons to exclude people from the service.  You want rules that say no military on—or military—no sex in the barracks, that‘s fine.  But we need more recruits, and I assume most people—most gay people still won‘t disclose their sexuality, anyway. 

Let me bring in my guests, Marty Meekins and Dan Woods are lead attorneys representing the Log Cabin Republicans who are bringing the suit, challenging the military‘s policy‘ and retired Army lieutenant-colonel, and law professor, Jeffrey Addicott. 

All right, Colonel Addicott, why do you think I have this one wrong? 

LT. COL. JEFFREY ADDICOTT, U.S. ARMY (RET):  Well, I‘m not saying you have it wrong, But I think, as my colleagues realize, the courts have turned a deaf ear to these types of cases over the last two decades.  When individuals have raised the issue, the courts, essentially, defer to the Pentagon and their decision.  And I thing you‘re going to see that in this case.  I just don‘t see the court taking the case.  And if the district court rules in favor of these individuals, I think the circuit court won‘t, and certainly the Supreme Court will probably (UNINTELLIGIBLE).

ABRAMS:  All right.  This is from the U.S. code policy on homosexuality in the armed forces.

“The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order, and discipline, and unit cohesion that are the essence of military capability.”

Mr. Meekins, we could—let‘s try not to talk too much about, sort of, the levels of scrutiny, with regard to constitutional scrutiny, but they will say, that‘s their defense, as to why the policy exists.  Why do you think that the court, in the end, you at least hope, is going to say, not enough. 

MARTY MEEKINS, REPRESENTING LOG CABIN REPUBLICANS:  A court in the end will say it‘s not enough because this, in fact, has not been tried over the past two decades.  The policy was not enacted until 1993.  And very early on, before the Lawrence court, before Roamers, these courts deferred to U.S. Supreme Court cases that said that governmental discrimination against gay and lesbian Americans was OK.  The Supreme Court, over the past several years, have issued a series of decisions that now say that that‘s not the case.  With those decisions, I think the court will, in the end, rule that this policy, that was enacted in 1993, is invalid, constitutionally. 

ABRAMS:  Um, all right.  Colonel Addicott, let me read you one part of the Lawrence v.  Texas decision. 

“The petitioners are entitled to respect for their private lives.  The state cannot demean their existence or control their destiny by making their private sexual conduce a crime.  Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”

You know, what the plaintiffs here are saying is look, that kind of language, new language from the Supreme Court, is going to lead them to say, can‘t have this, “Don‘t Ask, Don‘t Tell” policy. 

ADDICOTT:  Well essentially, you have the special circumstances here, is that you‘re dealing with the United States military.  And the courts have long deferred, not just in the homosexual issue, but a verity of issues, assignment issues, promotion issues, and they simply say, “We‘re not get involved in this, we‘re not going to micromanage the military.  We recognize the necessity for order and discipline.  If it‘s changed it‘s going to be changed, it‘s going to have to be changed at the legislature or executive branch. 

ABRAMS:  Mr. Woods, what do you make of that? 

DAN WOODS, REPRESENTING LOG CABIN REPUBLICANS:  The colonel is right that that has been the case for some time, but in June of this year, the United States Supreme Court decide a case involving an enemy combatant who was not allowed to write to counsel, and the military argued there, that that was essential to defer to the military, and the court rejected that. 

And despite the claims that the military need to decide how the military

handles its operations, the court stepped in and said that this fellow had

the right, under Due Process, to counsel.  Even though he was an Afghan

prisoner

ADDICOTT:  That‘s not correct, but—that‘s not correct. 

ABRAMS:  Go ahead.  Well, unfortunately we have to wrap it up. 

ADDICOTT:  Well, I‘m just saying that what the court said was that the president has the authority to designate, somewhat, and enemy combatant, because of special circumstances of the war on terror where these individuals don‘t wear uniforms, that the court was going to establish a neutral and detached judicial body to overlook that decision.  They certainly didn‘t say this individual had these Due Process rights that had been denied to combatants (UNINTELLIGIBLE). 

ABRAMS:  I got to wrap it up.  But, I don‘t want to get in the debate

about that case.  But, the bottom line is I think in this case—I think -

·         I think this is a different world in terms of the U.S. Supreme Court.  I think Mr. Meekins and Woods very will may win this case, but we shall see.  Marty Meekins, Dan Woods, Jeffrey Addicott, thanks very much. 

WOODS:  Thank you. 

ADDICOTT:  Thank you.

ABRAMS:  Coming up, the U.S. Supreme Court agrees to decide whether the Ten Commandments belong in the courtroom, or even on government property.  This will be a big case and we‘ll debate. 

A U.S. senator closes his Capitol Hill office until after the November election, saying he just got a classified briefing that made him fear for the safety of his staff at the capitol.  What happened? 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, the U.S. Supreme Court agrees to decide whether   the Ten Commandments can be displayed in American courts, and on government property.  First the headlines.

(NEWSBREAK)

(BEGIN VIDEO CLIP)

GREG ABBOTT, TEXAS ATTORNEY GENERAL:  It was not placed here to  

advance any particular   religious belief, nor was it   placed here to

discriminate against any particular   religious belief. 

(END VIDEO CLIP)

ABRAMS:  Greg Abbott, Texas Attorney General explaining why a Ten Commandments monument on the State House grounds in Austin is in his opinion constitutional.  Today, in what some say was a surprise move, the U.S. Supreme Court said it would rule on whether displaying the Ten Commandments on government property is constitutional. 

The court last weighed in on the issue in 1980.  Now it‘s taking up two cases.  In Van Orden v. Perry (ph) the Fifth Circuit Court of Appeals ruled that the Austin monument was constitutional.  

Saying it recognized the Commandments‘ role in the development of Texas law.  Doesn‘t represent state endorsement of religion.  And the legislature had a valid secular purpose when it approved the monument, which it called part of a historical landmark, which had stood without challenge for 42 years.

But in the other case, McCreary County Texas versus the ACLU, a different court of appeals ruled against posting the commandments in county courthouses and schoolrooms.  The court said in this case, the commandments were not integrated with the secular study of law and government.  And their display manifests a patently religious purpose, that has the effect of advancing religion.

My take—in the right context, I don‘t have a problem with posting the Ten Commandments in public places.  As long as it is there for historical perspective.  It‘s just not much different from putting “In God We Trust” on a public building or a dollar bill.  And where courthouses are concerned, it can be argued the Ten Commandments are at least a guide for many of our modern-day laws.  Even if precedents are different.

The court itself may offer a clue.  Right now, you can find Moses with other lawgivers on the Supreme Court building.  Ten Commandments tablets on the court‘s doors and gates.  And a bust of Moses in Congress portraits of noted law givers.  Requiring all schools to put up the commandments is probably unconstitutional.  But I don‘t think it‘s necessary to remove the commandments from all government buildings. 

Let‘s see what my guests think.  Nadine Strossen, is president of the American Civil Liberties Union.  And Matthew Staver is the President and General Council of the conservative law group, Liberty Counsel, who represents the Kentucky Counties in their case before the court.

Thank you both for coming on the program.

NADINE STROSSEN, ACLU PRESIDENT:  It‘s great to be here Dan.

ABRAMS:  Ms. Strossen, let me start with you.  Do you believe that the Ten Commandments cannot be placed in any government buildings, period? 

STROSSEN:  No, Dan.  I quite frankly agree with your analysis, which is very similar to the Supreme Court‘s analysis.  That you have to look at context.  You have to look at the purpose.  If the purpose, and if the effect of the particular display is for government to be singling out the religious message, making some members of the community feel like outsiders, that is unconstitutional, especially when we are talking about  government buildings that should be accessible to all.

But if the purpose and the context is part of a larger historical display, such as in the United  States Supreme Court, where there are in fact many other symbols that come from other religions, other periods of history, to show that it is not this particular religious message that is being endorsed,  but rather a historical message, then it‘s fine.  So it all depends on the facts and circumstances.

ABRAMS:  Mr. Staver, I would assume you agree with that as a concept, do you not?

MATTHEW STAVER, LIBERTY COUNSEL:  I certainly do, and I agree with

your assessment.  The interesting thing is that is not what the ACLU argued

in   the trial court or the court of appeals.  In fact, they argued that

the Ten Commandments could essentially never be displayed in any public

area.  And in fact, it has absolutely no connection to American law and

government.

STROSSEN:  That‘s not true. 

STAVER:  And in fact, it has absolutely no connection to American law and government.

STROSSEN:  That is absolutely untrue. 

STAVER:  This display in Kentucky in two courthouses, in McCreary and Pulasky County are the foundations of law display.  And within that context, the Ten Commandments is the same size.  It‘s in a frame.  It‘s the same size as many other documents, which include the Constitution, the Declaration of Independence, the Magna Carta and many others.

In addition to that, there is a lot of other historical pictures.  In fact, almost 100 in the McCreary County Courthouse.  So it is in historical context.  I do believe that the Ten Commandments can be constitutionally displayed in that context.  And that‘s what the issue...

STROSSEN:  But the court obviously agreed with us, that in that   context, the message was one of religion.  And the serious problem is, that as Justice Sandra Day O‘Connor said, it makes some people feel like outsiders.  Not like full members of the community.

ABRAMS:  But that is the argument that one can always make.  But what about what Mr. Staver said about the bottom line is, in his particular case, it was part of a historical presentation, with other historical documents, all about the same size.  What‘s the matter with that?

STROSSEN:  Apparently the court did not agree with that, Dan, looking at the overall context.  And I don‘t know exactly why that was.  But the question is, as you know, would a reasonable observer, looking at the overall display, see it as government favoritism of religion? You know, one complication about the Ten Commandments is there are so many different versions of it.  There is the Jewish version, there is the Catholic version. 

STAVER:  Well, that is just a red herring...

STROSSEN:  It‘s not a red herring.  It‘s not a red herring in the sense that one...

ABRAMS:  Hang on.  Mr. Staver, let her finish.  And then I‘ll get with you. 

STROSSEN:  If the government is displaying one, if by definition, is singling out one particular religious message, sectarian message, that is going to alienate everybody else. 

ABRAMS:  Before I let you respond, Mr. Staver, it seems to me though, using that reasoning, you could never have a version of the Ten Commandments that you would be OK with. 

STAVER:  That‘s right.  You‘d probably have to have the original Hebrew.  You‘d have to have multiple versions. 

ABRAMS:  Right.  So how do you respond to that?  Let Nadine Strossen respond.  Hang on.  Just let her respond.  And then I‘ll—go ahead, Miss Strossen.

STAVER:  The Unites States Supreme Court is a very good example.  There in fact if all you want to display is the historic significance, you don‘t actually need to have the words themselves.  In fact you cannot read the words in the Unites States Supreme Court...

ABRAMS:  So you are saying you can‘t have the words period.  Your saying you cannot have the Ten Commandments with the words anywhere. 

STROSSEN:  I‘m not saying that.  I‘m saying that would be a way that you could have a display that would in fact be serving the purpose that‘s alleged, which is the historical significance. 

ABRAMS:  Mr. Staver, go ahead.

STAVER:  The fact is that there is a major difference between a public establishment of religion, which the Constitution prohibits, and public acknowledgements of religion, especially in a historical context as here. 

In the McCreary and Pulaski County courthouse, in addition to the other hundreds of documents there, in this particular foundations of law display, the Ten Commandments is only one document, the same size as other documents.  There are other documents that dwarf the actual display. 

STROSSEN:  I think we have to talk about the real importance of the religious liberty right that is at stake here.  Our courts have recognized that religion is so private, so personal, so intimate, it belongs in the family.  It belongs in the place of worship.  Government does not...

(CROSSTALK)

ABRAMS:  Mr.  Staver, let me ask you one more question, because I put Miss Strossen on the spot and sort of putting her in the all or nothing—let me ask you one final question about that.  Do you think—because I think it is always unconstitutional to say, that every school for example, must display the Ten Commandments.  Do you agree with me on that?

STAVER:  Well, in this particular case, the cases that are before the Supreme Court right now are not school cases.  They are courthouse cases. 

STROSSEN:  One of them is a school case.

STAVER:  But it depends upon the context.  We have another one that is a school case, that actually creates a limited public forum in the school board office. 

ABRAMS:  What about my scenario?  What about my—my understanding was, there was an instruction to all the schools that they must put up the Ten Commandments.  And that seems to me clearly unconstitutional. 

STROSSEN:  That is plainly unconstitutional.

STAVER:  No.  That‘s not true.   

(CROSSTALK)

STAVER:  That‘s not accurate, Dan.  We represent Harlan County, which is a school district.  There was no instruction for all the schools to put up the Ten Commandments. 

ABRAMS:  But you agree with me.  If there were, it would be unconstitutional?

STROSSEN:  Yes.

STAVER:  I agree if it were forced, in the sense that if it wasn‘t contextual, certainly there could be certain situations.  But, not...

STROSSEN:  And given the impressionability of schoolchildren. 

(CROSSTALK)

STAVER:  ... you can actually talk about the Ten Commandments as part of history; you can certainly talk about it as part of government, and clearly in this particular case...

ABRAMS:  Got to wrap it up.  It‘s all about a balance here.  Because it‘s interesting, to listen to both of you.  You seem to agree on some of the points.  It‘s about where to draw that line.  Nadine Strossen, Matthew Staver, thanks so much.  Interesting discussion.

STROSSEN:  Thank you, Dan.

STAVER:  Thank you.  My pleasure.

ABRAMS:  Coming up, a U.S. senator gets a classified security briefing, and is now so worried about terror that he‘s closed his Capitol Hill office.  Telling his staff to leave the Capitol until the election.  What did he hear, and should all of us be worried?

A lot of you have said that the NFL and the possibility it could fine one of former Army Ranger Pat Tillman‘s teammates for paying tribute to him, by wearing Tillman‘s number on his helmet. 

(COMMERCIAL BREAK)

ABRAMS:  Now a story that is still developing, a short while ago the Minnesota Democratic Senator Mark Dayton made an unexpected announcement about his Capitol Hill office after attending a classified briefing.  Quote.

“I‘ve decided to close my office in the Russell Senate Office building until after the upcoming election.  I do so out of extreme, but necessary precaution to protect the lives and safety of my Senate staff, and my Minnesota constituents who might otherwise visit my office in the next few weeks.  I feel compelled to do so because I will not be here in Washington to share in what I consider to be an unacceptably greater risk to their safety.”

Senator Dayton issued a statement after receiving a top-secret intelligence report on national security.  He even said when it comes to his constituents, “I wouldn‘t advise them to come to Capitol Hill.  I would not bring my two sons to the Capitol between now and the election.” So what is this about?  Joining me, our NBC News Capitol Hill producer, Mike Viqueira, and “Washington Post” national intelligence reporter and NBC news analyst, Dana Priest. 

All right Mike, what do you know?

MIKE VIQUEIRA, NBC NEWS PRODUCER:  Well, a lot of people up here are their scratching their heads, too, Dan.  There were 535 members of Congress, Senate, and House who had access to the same briefing that Senator Dayton had.  They all heard the same information.  Nothing alarmed them to the extent that they would close their offices.  As a matter of fact, I remember two weeks ago when they had that briefing, I talked to a couple of members who came out, said the briefing was to put it bluntly, “BS”.  That a lot of people were talking about the same old thing they had heard before. 

Now, keep in mind everybody up here is aware that there is a threat.  There is no doubt in many people‘s minds on Capitol Hill that that Pennsylvania flight was coming for the Capitol.  A lot of people give credence to the so-called Madrid scenario, where there could be a terrorist attack before the election, as we saw in Spain a few months ago. 

But nobody is really taking the threat that they heard—any threat that they heard of in that briefing two weeks ago as seriously as Senator Dayton.  As a matter of fact, fellow Democrat in the Senate, and the top Democrat on the Intelligence Committee, Jay Rockefeller of West Virginia says, at this time neither the intelligence community nor the Department of Homeland Security has suggested that congressional offices be closed, Dan. 

ABRAMS:  Miss Priest, what do you make of it?

DANA PRIEST, THE WASHINGTON POST:  Well, I would also have to say that Senator Dayton is not moving all of his staff to Minnesota.  He is just relocating some of them off Capitol Hill to other places in Washington.  That has people really curious as well, because as we know, Washington itself like New York and New Jersey, are also targets. 

And from just poking around today in the intelligence world, there is no update, and he did not receive any update.  So really he‘s going on that information that‘s two weeks old.  And no one has more specifics than that.  We do know the MO of al Qaeda is to try to strike targets that they might not have been successful at, but still, there is no indication of time, place, or location for this so-called election threat.

ABRAMS:  Mike, he‘s not running for reelection, anything political that can be read into this?

VIQUEIRA:  I don‘t think so.  Most Democrats fear that the administration might use scare tactics.  If you remember a few months ago, there was an administration official who said that we should make provision for postponing the elections just in case there is a Madrid-style bombing. 

Democrats screamed at the top of their lungs at that.  They called it administration fear tactics.  And they thought that any political benefit from such statements would accrue to the Republicans.  So I don‘t think that Democrats would really consider this to be a wise political strategy, if in fact that‘s what it is. 

ABRAMS:  And Dana, let‘s be clear.  There is nothing new that you know of that came up in this top-secret briefing?

PRIEST:  Not only that I don‘t know of, but Senator Dayton didn‘t get an update.  So you are correct, all the other members got the same thing.  On the political level, though, he has criticized publicly, Senator Dayton, criticized Senator Frist, repeatedly, for not getting all the senators together to talk about this issue. 

His press secretary said he met with them three times before he asked the sergeant of arms what he should do.  And the sergeant of arms said make your own decision, everybody has to do that.  So he is at least saying that Senator Frist has not performed his duties the way he would like to him to do.  And that may be some sort of political message that he is sending. 

ABRAMS:  All right.  Well, this is important perspective.  Mike Viqueira, Dana Priest, thanks so much for coming on the program.  We appreciate it. 

Coming up, the Bush and Kerry campaigns keep on attacking each other for what the candidates said about the war on terror.  But they‘re taking a few words out of context.  And I want to sort all of this out.  It sounds a lot like lawyering to me.  And your e-mails also, coming up.

(COMMERCIAL BREAK)

ABRAMS:  My closing argument.  Watching both campaigns dissect words, and often take them out of context like, well, only lawyers would.  The latest flap over Senator Kerry‘s use of the word nuisance in an interview with the “New York Times.”  When talking about how he hoped to reduce the threat of terrorism, to the point where terrorists are “not the focus of our lives, but they‘re a nuisance.”

The Bush campaign saying this shows Senator Kerry doesn‘t understand the nature of the threat.  That it demeans those who died.  They say for him to compare to prostitution and illegal gambling shows a pre-9/11 mentality that would be dangerous for this country.  Of course, Kerry never compared threat of terrorism to either.  He only said that terrorism would never go away, like prostitution or illegal gambling. 

Bottom line, it was a somewhat unartful way of saying, that he hopes to beat the terrorists to the point where they lose their power and influence.  But that they‘ll never go away altogether.  To suggest otherwise is just intellectually dishonest and just nitpicky lawyering. 

And President Bush got a legalistic smear on the same topic.  After an interview with Matt Lauer, the president was asked whether we can win the war on terror.  He said, “I don‘t think we can win it.  But I think you can create conditions so that those who use terror as a tool are less acceptable in part of the world. 

The Democratic attack dogs went after him saying that John Kerry thinks we can win the war on terror.  That Kerry has faith in our firefighters, police officers and, et cetera. 

The bottom line, it, too, was a somewhat unartful way of saying that he hopes to beat the terrorists to the point where they lose their power and influence, but that they‘ll never go away altogether.  Exactly the same point Kerry was making about what he realistically hopes to achieve when it comes to terrorism. 

Yet the lawyers and spinmeisters are just taking it all out of context on both sides, doing all of us a disservice.  Lawyers take all the heat for parsing and twisting words, but politicians, who yes, are often lawyers, are often even more disingenuous and sanctimonious in their efforts to convince and deceive.

I‘ve had my say.  Now it‘s time for your rebuttal.  Last night on the program, we debated Denver Broncos quarterback Jake Plummer‘s defiance of an NFL rule that prevents players from placing personal messages on their helmet.  Plummer has been wearing a number 40 decal on his helmet in honor of his former teammate and friend, Pat Tillman. 

He turned down a multimillion-dollar contract in the NFL to join the army rangers.  He died on the battlefield in Afghanistan.  I say, the rules are legitimate for the NFL.  But the league should call it a technical violation, and then let it slide.  Not fine Plummer.  This is a special case. 

Bruce Berger in Oldsmar (ph), Florida, “So let‘s see.  Any unauthorized change in uniform can {quote} diminish the NFL product, but having a player beat his wife fined and suspended doesn‘t diminish product?

Marianne Moore, “Just wanted everyone to know that my family will gladly assist in paying for the fine imposed on Mr.  Plummer, if it actually comes to that.  Just let us know where we need to send the money.

From Syracuse New York, Steve Wolak.  “I can see if the NFL said no, because it was a Pepsi or Coke advertisement placed on a players helmet for personal gain.  But come on.  This is a fallen hero‘s number that will be worn for just the remainder of this football season.  And what about all the other sports teams and players that wear black armbands out of respect for a fallen teammate?

Mark Adams, from Newport, Rhode Island, “What if we allow other players to put whatever they want on their helmets? What? Beginning to advertise Nike?

And from Grover Beach, California, Kirk Stenvail.  “Wouldn‘t Mr.  Plummer better honor the memory of his friend and colleague by obeying the rules, and donating $5,000 to the Pat Tillman foundation, rather than giving it to the NFL in the form of a fine. 

Well, Kirk, he wants the NFL to give any fine to that fund.  Also last night, Sinclair Broadcast Group has “ordered it‘s 62 television stations to run a documentary called “Stolen Honor, wounds that Never Heal”, which accuses Senator Kerry of betraying U.S.  POW‘s held in Vietnam with his anti-war comments that followed his Vietnam service. 

I said it‘s outrageous for any broadcast stations to air documentaries bashing either candidate now.  But that there are no legal or legitimate legal or procedural grounds that I think will stop it.  Plenty of reaction from both sides. 

Chicago, John Davis.  Dan, what‘s the difference between Fahrenheit 9/11 and this Kerry bashing TV program?

Judy in Leewood (ph) Texas goes onto say—let‘s move forward.  “The anti-Bush Moore 9/11 film is scheduled to air the same week as Sinclair‘s show.  Why don‘t you think that is wrong”?

Look, bottom line is they are the same.  I view them exactly the same way.  It‘s not wrong in this case because it is not on a broadcast television.  “Fahrenheit 9/11”.  You have to pay to see that movie.  And yet Sinclair is airing a clearly one-sided piece for free.  That‘s the difference. 

Paul Strasser in Pennsylvania.  “The Sinclair Broadcasting Company wants to air this partisan documentary, then they should be required to air “Fahrenheit 9/1”1 during the same time slot.”

Tom in New York City says, “we‘re all blowing it out of proportion.  “Are you kidding? What kind of influence does Sinclair Broadcasting really have? It‘s mainly made up of little-watched WB and UPN affiliates, as well as some stations so small they don‘t even have any network affiliation.”

Maybe, but according to them, they reach approximately 24 percent of all U.S.  television households.  Pretty big deal.

Quickly, Peterson case.  From Clayton, Ohio, Regina Fromholt.  “I know this is going to sound crazy, but has anyone consulted a pet psychic about the case?”

Regina, yes, it sounds crazy, and no, no one has that I know of gone to the pet detective route.  But keep in mind, the defense has not presented its case yet.  Your e-mails, abramsreport@msnbc.com.  We go through them at the end of the show.

Coming up next, HARDBALL with Chris Matthews.  Chris is in Tempe, Arizona (UNINTELLIGIBLE) for tomorrow‘s presidential debate.  Enjoy special coverage tomorrow night at 6:00.

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