updated 10/20/2004 10:31:55 AM ET 2004-10-20T14:31:55

Guest: Victor Sherman, Mercedes Colwin, Gloria Allred, Lisa Bloom, Representative Robert Wexler, Representative Clay Shaw, Sheriff David Westrick

DAN ABRAMS, HOST:  Coming up, Scott Peterson‘s defense team chips away at the prosecution‘s case one motive at a time.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Prosecutors say one of the reasons Peterson killed his pregnant wife was money.  That they were spending beyond their means.  That he didn‘t want to support her or a baby.  Now a defense witness says there were no money troubles and that Laci had more money coming to her.

And exactly two weeks before Election Day, a court in Florida is already being asked to weigh in.  This time it‘s the electronic voting machines that were supposed to solve the problems of 2000.  We talk with the congressman who brought the case to court.

Plus, when Mary Poppins and Michael Jackson registered to vote in a small Ohio town, officials knew something was up.  It turns out a man was allegedly being paid with crack cocaine to register phony voters.  Now a prominent civil rights group is on the hot seat.

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi, everyone.  First up on the docket, day two of the Scott Peterson defense.  Attorney Mark Geragos fighting for his client on two fronts.  Number one, financial.  The other, forensic.  The financial front, Geragos put a former IRS investigator on the stand to try to undercut prosecution claims that money was part of the motive for Scott to kill his pregnant wife Laci.  And on the forensic front, Geragos brought in a law enforcement witness who was on the scene when the body of Peterson‘s unborn son Conner was found.

KCRA reporter Edie Lambert has been in court again today.  So Edie, what did we learn today?

EDIE LAMBERT, KCRA REPORTER:   Well first of all, I should let you know that this court is in a break right now because one of the alternate jurors came down with the flu.  Judge Delucchi sent everyone home.  He says he doesn‘t want to take the risk that that bug could spread through the rest of the jury.  But as you pointed out, most of the testimony today has focused around an accountant brought in by the defense and of course they are trying to show that there was no financial motive for murder.

In fact, this accountant said if there was any motive on Scott Peterson‘s part if you are just looking at the finances, it would have been to keep Laci Peterson alive because she stood to inherit a lot of money.  Now he ran through the Petersons‘ budget.  We can show you these numbers.  Again, these are numbers from the defense witness.  The approximate revenue for the Peterson family in 2002 was $6,400 a month.  After expenses like the house and car payment, country club bill, and credit cards, the Petersons were left with more than $2,000 and this accountant said they were in great financial shape.  Now prosecutors pointed out that that $2,000 figure is before taxes.

They also made a point of showing to the jury and reminding the jury that Laci Peterson had been selling some of her grandmother‘s jewelry and they were really suggesting and implying that maybe perhaps the Peterson family needed that money.  The accountant didn‘t budge on that point saying that there are all kinds of reasons that people would sell jewelry.  Now, as you put it Dan, the prosecutors have never said that this was actually a motive for murder, but suggested that perhaps finances played a role in the motive, that there was some kind of financial pressure.  So that was the point of today‘s witness for the defense.

Also today we heard the beginning of testimony from an officer with the East Bay Regional Park Police Department.  He was one of the very first to respond when baby Conner‘s remains were discovered on April 13 of 2003.  We have not heard much testimony from him, but remember, the first officers on scene thought that what they were looking at was the remains of a full-term baby.  And that timeline is important to the defense case.  So tomorrow morning first thing on board will be a 402 hearing looking at admissibility of evidence.

In this particular case, these are wiretap tapes that—conversations that Scott had made on the day of his arrest but before his arrest, and apparently in these conversations he makes it clear that he thinks he‘s being followed by the media.  Now prosecutors were claiming that he acted like a man on the run because he knew he was being trailed by law enforcement, so the judge will decide which of those tapes, if any, can be admitted into court...

ABRAMS:  All right.

LAMBERT:  ... and of course after that everyone is hoping for a healthy recovery for alternate number five.  Back to you...

ABRAMS:  Edie, we‘re going to check in with you in a little bit to talk to you about what—you have a pretty good sense of what‘s coming up in the case.  We‘ll talk to you about that a little bit later.

But “My Take” on this, the money expert.  Nice point for the defense.  It doesn‘t address the issue of how much having a new baby would have cost them nor does it address the fact that police said Laci wanted a new car, new house, nor does it deal with the ultimate question did he kill Laci because he wanted a different life, a freer, less restrictive and less expensive life a single man could have.  But it does challenge the notion that they were in financial straits.  One point for the defense.

Let‘s go to our all-star Peterson panel—criminal defense attorneys Mercedes Colwin and Victor Sherman and Amber Frey‘s attorney Gloria Allred, who was in the courtroom today.  All right, Mr. Sherman, I am assuming that you probably don‘t entirely agree with my analysis with regard to this financial expert that this is, you know, a nice little point, but not particularly significant.

VICTOR SHERMAN, CRIMINAL DEFENSE ATTORNEY:  Actually, I do agree...

ABRAMS:  You do?  OK.

SHERMAN:  I think it is a nice little point, but not very significant and I think this was probably the weakest part of the prosecution‘s case to begin with—the claim that there was a financial motive for this murder.  So I think they just set themselves up to be—to fail and that Mark Geragos took advantage of the situation.  They put up this financial motive.  They knew it wasn‘t a very strong motive.  Mark knew it wasn‘t a very strong motive, so given an opportunity, it‘s one of the first things he knocked down.

(CROSSTALK)

SHERMAN:  So I think it was a point for the defense today.

ABRAMS:  Yes, small point for them.  Here‘s what the—in the arrest warrant, this is how they laid out Scott Peterson‘s motive, all right.  The motive of that crime is likely linked to Scott‘s failing business and financial situation in addition to the emotional and financial pressures of becoming a parent when he lacked any desire to have a child.  The expensive desires of his wife including her desire for a new vehicle and home and plan to be a stay-at-home mother likely compounded the situation.  Scott‘s continued desire to establish a long-term permanent relationship with Amber Frey may have advanced the motive.

Mercedes, do you think that I‘m understating the significance of today‘s testimony saying look, you know, nice little minor point, but doesn‘t address the real questions of you know whether this was one of the things that made Scott feel like it‘s time to get rid of my wife.

MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY:  I can‘t believe I‘m about to say this, Dan, but I actually agree with your point.  You‘ve got 2-2 today.

ABRAMS:  All right.

COLWIN:  No, but I do think...

ABRAMS:  Good.

COLWIN:  ... that there are other things the jurors are going to consider that Laci Peterson was going to inherit about $100,000 from her grandmother.  That she was selling the jewelry...

ABRAMS:  In a few years...

(CROSSTALK)

ABRAMS:  In a few years...

COLWIN:  In a few years...

ABRAMS:  ... when she was 30.

COLWIN:  She was—but still, there are loans that you can get that in accordance with those estate—whatever estate promises there are, you can get loans against it.  But also, when she was selling that jewelry, she was telling this is a little garish.  This isn‘t really what I‘d like to wear, so she was selling the jewelry.  So I agree completely with Victor...

ABRAMS:  All right.

COLWIN:  ... when he said, frankly, this is a weak point for the prosecutor and he just took a homerun right out of the ballpark.

ABRAMS:  What happened—I thought we were in agreement that it was a minor point.  Suddenly it‘s become a homerun out of the ballpark?

COLWIN:  Well...

ABRAMS:  I mean come on.

COLWIN:  All right.  A double then.

ABRAMS:  A double.  I was giving it like, you know, just barely a sort of a blooper into the outfield that barely gave him a single.  All right, Gloria Allred, what do you make—before I read off all of the points that the prosecutors made with regard—let me do that right now, Gloria.  Here‘s what the prosecutor tried to do.

All right.  They said that Peterson‘s company was not in good shape financially.  They said Peterson had $23,000 in credit card debt.  That 69 percent of Peterson‘s monthly take home pay went to normal fixed debt.  Something that the defense expert disagreed with.  Scott and Laci each took out $250,000 life insurance policies in April of 2001.  That Peterson pawned jewelry for $250 weeks before Laci disappeared.  That Laci was looking at houses between 400,000 and $600,000.  Laci wanted to buy a new car.  Laci was considering becoming a stay at home mother.

All right, significance, Gloria, of this witness for the defense.

GLORIA ALLRED, AMBER FREY‘S ATTORNEY:  Well yes, actually I thought something interesting happened there when the witness was testifying and that is that the prosecution brought out that the witness was not aware that Scott Peterson had received an e-mail from his boss in October of 2002 informing Scott Peterson that he was off his goals as a salesperson for Trade Corp by 50 percent.  And that the boss wanted the sales increased 10 times in November and December...

ABRAMS:  But Gloria, how does...

ALLRED:  Now that put a lot of pressure on Scott.

ABRAMS:  Wait.  Gloria, how does killing his wife, though, help him increase sales?

ALLRED:  This goes to he was under a lot of financial pressure.  Trade Corp had a negative cash flow.  If Trade Corp went out of business or if he lost his job...

ABRAMS:  I don‘t know, Gloria.

ALLRED:  ... and one more point, Dan, which is as to the inheritance that everyone is making a big deal out of.  First of all, it isn‘t clear exactly when she would get it, but secondly, that‘s separate property in California.  That is not something that Scott Peterson...

ABRAMS:  No...

ALLRED:  ... would have an interest in.

ABRAMS:  ... but...

(CROSSTALK)

ABRAMS:  ... right, but the two of them...

COLWIN:  She could convert that anyway Dan.

ABRAMS:  She could...

COLWIN:  She can covert it.

ABRAMS:  ... she could put it to the things that they wanted to get.  You know, on this one I‘m with Victor and Mercedes as long as they don‘t characterize this as some sort of homerun for the defense.  It was a minor little point that the defense got.

Let‘s take a quick break here.  We‘re going to talk about what‘s coming up in the Peterson case.  The defense—they‘re still saying that closing arguments are going to be what, in a week from now a week or a week and a half, two weeks.  I can‘t imagine it happening.

Also coming up, new developments in the Bill O‘Reilly lawsuit.  The woman suing O‘Reilly is now not just suing him and Fox News, but now throwing in the “New York Post” saying that they are sided—helping Bill O‘Reilly.

And a Democratic congressman from Florida is taking the state to court citing Bush v. Gore saying that the new system could be a bigger problem than the old one.  We‘ll talk to him.

Plus, a man says he was hired or at least a man is accused of being hired to register voters in Ohio, but according to authorities, instead of a paycheck, get this, he got paid in crack cocaine to register voters.  That‘s not all.  He didn‘t even pound the pavement for the potential voters.  He filled out the forms.  I guess he ran out of names because he started using names like Dick Tracy and Michael Jackson.

Anyway, 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.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, more of the Scott Peterson case.  He‘s got a lot of evidence still coming for the defense.  We‘re going to lay out what‘s coming up.  Take a break.

(COMMERCIAL BREAK)

(BEGIN AUDIOTAPE)

SCOTT PETERSON, ON TRIAL FOR MURDER:  I want to talk to you also about, you know, selling the house.

ARGAIN:  Yes.

PETERSON:  I mean can I do that?  I don‘t know.

ARGAIN:  I believe you can.  I mean I don‘t see why you couldn‘t if that‘s what you want to do.

PETERSON:  Yes.  I mean I need to and we‘re not staying there anyway.

ARGAIN:  OK.

PETERSON:  However this comes out, you know.

ARGAIN:  OK.

PETERSON:  You know, but keep it quiet obviously.

(END AUDIOTAPE)

ABRAMS:  Scott Peterson talking about selling his house a month after Laci disappeared.  Less than a month, and yet before, of course, her body was found.  All right.  Something happened in court today.  We were just talking about the fact that there was an accountant on the witness stand trying to help the defense show that money wouldn‘t have been a motive, that they were doing fine when it came to finances.  One of the jurors during the testimony handed the judge a note.  Everyone was wondering what it was about.

Edie Lambert is back with us.  Edie, what do we know?

LAMBERT:  Actually the note that I have information about is a separate one, but I can talk about that.  That was juror eight handed a note to a bailiff.  We don‘t know if he wrote it or if somebody handed it to him.  Gave it to the judge—the judge says, I have a question from one of the jurors.  This was as the accountant was testifying, so he halted testimony just for a moment.  They shared the letter with all the attorneys.

And we‘re assuming that the question was asked of the accountant.  The note that I‘m talking about is one that went straight from one of the jurors to the judge perhaps over the weekend.  He announced it yesterday.  Said that he‘d received this note.  He shared it with the attorneys and then immediately put it under seal.  I have learned that this note had something to do with a health problem of one of the jurors, although that juror was in court today and it‘s not the same juror who came down with the flu.

ABRAMS:  All right.  Edie, what do we know about what‘s coming up as part of the defense‘s case?  Are they really going to have—are we really going to have closing arguments November 1?

LAMBERT:  Boy, I would seriously doubt it at this point, Dan.  I have to tell you they ran through their witnesses very slowly yesterday.  We basically lost almost a whole day today, so I would be surprised if closing arguments started on November 1.

Now as for what‘s coming up, we know that the East Bay Regional Park police officer will be back on the stand first thing tomorrow as long as the alternate juror is feeling healthy.  Also, two dog handlers including the man who trained Eloise Anderson—it was her dog who picked up the scent of Laci Peterson four days after Laci disappeared down at the Berkeley Marina.  That was important testimony for the prosecutors.  The defense team plans to fight it with two witnesses.  Also, we are expecting to hear tomorrow from three members of the Modesto Police Department including the lead detective, Craig Grogan.

ABRAMS:  All right.  Edie Lambert, thanks.  It sounds like they are going to begin putting the police on trial.  Is that what we‘re probably going to see, Victor Sherman?

SHERMAN:  I think that‘s—well he‘s pretty much done that during the prosecution...

ABRAMS:  Right.

SHERMAN:  ... part of the case, put the police on the defensive.  I mean my real question in this case is, is Scott Peterson going to testify?

ABRAMS:  Come on he‘s not—we already—we‘ve already gone through this.  We know he‘s not testifying.  We‘re not—you know, I‘m not going to even have serious questions about whether Scott Peterson is going to testify because he‘s not.

SHERMAN:  Well...

ABRAMS:  And to do that is to just buy into defense spin that the idea that he is actually considering taking the witness stand...

(CROSSTALK)

ABRAMS:  Let me let Victor respond.  Go ahead...

SHERMAN:  Why did they cross-examine him...

ABRAMS:  Because they want to pretend like they are serious about calling him to witness stand.  Come on Victor...

(CROSSTALK)

ABRAMS:  ... it‘s either that or they want to convince Scott Peterson not to take the stand, but it has nothing to do with seriously deciding...

SHERMAN:  If you were Scott—if your life was at issue in this case and you thought the only chance of winning this case...

ABRAMS:  Depends if you are guilty or not Victor.  It‘s not about whether what‘s going on in your head.  It‘s about the facts...

SHERMAN:  Well...

COLWIN:  Dan, but he went on national television.  This is a man who...

ABRAMS:  Yes, dumb move...

COLWIN:  ... stood in front of national...

ABRAMS:  ... been used against him again and again...

COLWIN:  Well that‘s—he didn‘t do such a great job, but still he has...

ABRAMS:  All right.

COLWIN:  ... the hubris to believe that he can convince the nation that he is innocent, how could he not...

ABRAMS:  Gloria, Gloria, please...

ALLRED:  Dan, I have to back you up on this...

ABRAMS:  Come on.

ALLRED:  ... because this is—you know it‘s so preposterous to think that he‘s going to testify.  And by the way, yesterday, of course, we learned that Michael Cardoza had cross-examined him and so I said well you know I wonder, can just anybody go in and cross-examine Scott Peterson?

ABRAMS:  Yes.

ALLRED:  I said I‘d like to go in and cross-examine Scott Peterson so I asked Mark Geragos this afternoon if I could do that.

ABRAMS:  Yes.

ALLRED:  He said he‘d make me a deal.

ABRAMS:  OK.  All right.

(CROSSTALK)

ABRAMS:  That is about an authentic an offer as the reality that Scott Peterson is going to take the witness stand...

SHERMAN:  Well if he doesn‘t...

COLWIN:  Dan, can I respond to the law enforcement issue?

(CROSSTALK)

ABRAMS:  All right.  Wait.  Mercedes wanted to actually respond to the question I was asking.  Go ahead.  Yes...

COLWIN:  Yes, I think it‘s a mistake for Geragos to bring Grogan on.  I really do.  I mean I thought Grogan was such a fabulous witness.  Why not bring back Brocchini if you want to beat a dead horse.  And it‘s true he‘s already pretty much established that law enforcement didn‘t do what they were supposed to do during the prosecutor‘s case, why belabor the point?

ABRAMS:  All right...

COLWIN:  Move on to what‘s really important.

ABRAMS:  Yes.  I mean we‘ll see.  Maybe he‘s got something new.  We‘ll see.  Because I agree with you that Grogan did well, but you know, who knows, maybe he‘s got—all right, let me—I‘ve got to...

ALLRED:  He did.

ABRAMS:  I‘ve got to wrap it up.  Edie Lambert, Victor Sherman, Gloria Allred, thanks a lot.  Mercedes is going to stick around to talk about the next topic.  It‘s coming up.

The woman suing Fox host Bill O‘Reilly for sexual harassment has widened the suit against him saying Fox is using one of the newspapers “The New York Post” owned by the same company to retaliate against her.

And once again Florida could make or break the election because according to one U.S. Congressman the state‘s new electronic voting machines are not good enough.  He says if it comes down to another recount, well, he says there could not be a recount.  He‘s taking the state to court.

(COMMERCIAL BREAK)

ABRAMS:  There is a new development in the lawsuit against Fox star Bill O‘Reilly.  This, of course, brought by his former associate producer Andrea Mackris.  She‘s suing him for sexual harassment.  She says he was talking dirty to her, phone sex conversations.  She says they were unwanted and that she felt that she couldn‘t not take the call from her boss.  She is suing for $60 million.

Lisa Bloom of Court TV is with us and she has gotten another amended version of the complaint in this case.  What is Andrea Mackris alleging at this point?

LISA BLOOM, COURT TV:    Well that‘s right Dan, another Court TV exclusive.  This is interesting.  Her second amended complaint, which is going to be filed very shortly, alleges that News Corp., which is the parent corporation of Fox News and which also owns the “New York Post” is using the “New York Post” to run a series of smear pieces against Andrea Mackris.  That‘s an element of retaliation.

Of course, we know that when someone accuses an employer of sexual harassment, the employer usually backs off and tries to appear squeaky clean, not doing anything negative towards that employee.  Well Fox News has taken exactly the opposite attack and really gone on the offensive against her.

There was another piece today mocking her behavior in a bar and so on.  So that‘s one of their new claims.  They also claim that Bo Dietl, the investigator who appeared on your program Friday, Dan, also is an aspect of retaliation against Andrea Mackris because he threatened her.  He said his job is to destroy her credibility...

ABRAMS:  Did they quote our program in the motion?

BLOOM:  They do quote MSNBC.  It is paragraph 109 and 110.  And they quote Bo Dietl as saying what we‘re going to do now as investigators is take Andrea Mackris‘ credibility and show the court if it ever goes there, it‘s falling apart.  This is a message to people.

ABRAMS:  Yes.  I remember...

BLOOM:  So be aware, et cetera.  Well that‘s now one of the new allegations in the lawsuit.

ABRAMS:  Oh boy.  All right.  Stick around for just a moment.  Mercedes Colwin has defended lots of these cases.  What do you make of this additional allegation...

COLWIN:  I think it‘s ridiculous.  I mean certainly retaliation against “The Post” really has no merit because there is not an adverse employment action being taken against her.  She wasn‘t punitively transferred, wasn‘t demoted.  She wasn‘t terminated.

ABRAMS:  But they‘re saying...

COLWIN:  She‘s...

ABRAMS:  ... they‘re saying this is part of the—they‘re not suing “The Post”.  They‘re saying part of the retaliation is getting their arm, the “New York Post” to report these negative stories about her.

COLWIN:  But the negative stories have truth to it.  What she might be claiming because—is probably a defamation claim...

ABRAMS:  Yes.

COLWIN:  ... but frankly, truth is an absolute defense...

BLOOM:  Well you‘re assuming they‘re truthful...

COLWIN:  These are—but...

BLOOM:  ... but she denies...

COLWIN:  But wait Lisa.

BLOOM:  ... these articles in “The Post” are true.

COLWIN:  If it‘s opinions from these patrons and I have read plenty of those stories, those opinions are not a viable cause of action for defamation.  Opinions are...

ABRAMS:  Yes.  This is...

(CROSSTALK)

BLOOM:  Mercedes, if you‘re defending an employer, you‘re going to tell them once they get a discrimination or harassment claim to back off that employee and don‘t do anything that looks like retaliation.  Isn‘t this exactly the opposite...

(CROSSTALK)

BLOOM:  ... what they‘re doing...

ABRAMS:  But Mercedes, you have to admit it is a little bit odd and this does seem like a classic “New York Post” type story and yet, the only angles they‘re covering on it are the ones that are negative to Andrea Mackris.

(CROSSTALK)

COLWIN:  But these are opinions though.  I mean it‘s one thing whether this...

ABRAMS:  Yes.

COLWIN:  ... “The Post” would do.  It‘s another thing...

ABRAMS:  It‘s a journalistic question...

COLWIN:  ... whether there‘s a viable cause of action.  There isn‘t one.

ABRAMS:  Yes.

(CROSSTALK)

BLOOM:  And you know, Dan...

(CROSSTALK)

ABRAMS:  What about that...

(CROSSTALK)

ABRAMS:  Lisa, what about that?  I mean look as a journalistic matter, et cetera, you know, I think they may have a point.  But what about as a legal matter to say—that‘s a going to be tough to prove, isn‘t it?

BLOOM:  I don‘t think it‘s tough at all.  I have handled a lot of plaintiff sexual harassment cases.  Any adverse actions taken by the employer after somebody comes forward can be retaliation Dan...

ABRAMS:  But don‘t you have to show...

(CROSSTALK)

ABRAMS:  ... that the company ordered it Lisa...

(CROSSTALK)

BLOOM:  You‘ve got to protect the little guy going against the big company.  Otherwise this is going to happen over and over again and nobody will ever come forward.  The law is designed to protect people who come forward with a harassment or discrimination claim.

COLWIN:  But the law does not protect individuals who use extortionary measures in order to...

(CROSSTALK)

BLOOM:  Well, that‘s a legal conclusion Mercedes...

COLWIN:  Well, that‘s a legal conclusion and you‘re right.

BLOOM:  ... try to settle the case.  That‘s not extortion.

(CROSSTALK)

BLOOM:  Not even a civil cause of action...

ABRAMS:  All right.  I‘ve got to...

BLOOM:  ... extortion...

ABRAMS:  I‘ve got to wrap it up.  All right...

(CROSSTALK)

ABRAMS:  Mercedes, I‘ve got to...

COLWIN:  We‘re dealing with $60 million...

ABRAMS:  I‘ve got to wrap it up.  Lisa, congratulation on your exclusive.  Thanks very much.

BLOOM:  Thank you.

COLWIN:  Thanks Dan.  Hey, Lisa.

ABRAMS:  All right.  Coming up, forget about what the polls are saying.  When it comes to deciding who wins the election it all could come down to the legal questions again.  And again a controversy brewing in Florida.  This time over the new voting system put in place after the 2000 election.  We talk to the U.S. congressman who is leading the charge.

And what do Michael Jordan, George Foreman, Michael Jackson and Mary Poppins have in common?  Well they all registered to vote in a small town in Ohio.  At least that‘s what the form said.  A man is now under arrest for filling them out and the authorities say—get this—he was paid crack to fill these forms out to try and get people to vote.  Talk with the sheriff.

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, you may think Florida‘s voting problems were solved after the 2000 debacle, think again.  This year‘s election has already made its way to the court there and it has nothing to do with pregnant chads.  This time the problem could be computers that replace the punch cards, but first the headlines.

(NEWS BREAK)

ABRAMS:  Welcome back.  In the wake of the Florida election debacle of 2000, local authorities vowed to make sure it will not happen again.  In fact, now more than 50 percent of voters are going to be using new touch screen voting machines instead of the old punch card ballots, so the problem won‘t be hanging chads, but apparently that doesn‘t mean there won‘t be problems.  In particular, how you can recount electronic votes.

NBC‘s Mark Potter has the story.

(BEGIN VIDEOTAPE)

MARK POTTER, NBC NEWS CORRESPONDENT (voice-over):  In Palm Beach County, a final test of the touch screen voting machines as officials brace for the spotlight November 2.

THERESA LEPORE, PALM BEACH ELECTION SUPERVISOR:  In every election they come out and they say oh, this is going to be a bigger debacle than 2000 and it never materializes.

POTTER:  With new voting measures in place, Florida officials predict a successful 2004 election.  Critics aren‘t so sure.

HOWARD SIMON, ACLU FLORIDA:  Florida has a needlessly complex, arcane voting system, and the more you pull off the scab and look into the wound, the uglier the picture gets.

POTTER:  With the election bearing down, several lawsuits remain unsettled.

(on camera):  One of the lawsuits involves these electronic touch screen machines themselves.  An attempt is underway to require them to print out a paper record the voters can see and that could be used in case there is another manual recount.

(voice-over):  After the 2000 recount, touch screens replaced the notorious punch card system and are now used by a majority of Florida voters.  While election officials say they have a proven track record, critics want backup for the machines.

REP. ALCEE HASTINGS (D), FLORIDA:  It‘s voting in cyberspace.  Somebody has the call.  Somebody else can make a determination as to how the machine is set.

POTTER:  Other lawsuits question whether voter registration and provisional ballot procedures will wrongly bar some votes from being counted.  Florida‘s secretary of state suggests politics are behind the 11th hour attack.

UNIDENTIFIED FEMALE:  It was not questioned three months ago or six months ago or a year ago or when the reform measures were put in place by the legislature.

POTTER:  Jim Kane, editor of the “Florida Voter”, says the state‘s equal split between Republicans and Democrats heightens the concern.

UNIDENTIFIED MALE:  That just adds fuel to the fire when there is a debate over how fair an election is.

POTTER:  Especially if the election results this year are close.

Mark Potter, NBC News, West Palm Beach, Florida.

(END VIDEOTAPE)

ABRAMS:  That lawsuit Mark Potter was talking about was filed by Democratic Congressman Robert Wexler.  Congressman Wexler says that the judge should order election officials to create a paper trail since the recount would be impossible (UNINTELLIGIBLE) without the paper receipt.  He says that‘s unconstitutional.

This suit has gone through the courts.  It was filed in federal court last spring.  A federal judge sent it back to state court.  The decision appealed.  A few weeks ago another federal appeals court returned it to the federal judge and so here we are.

“My Take”—Congressman Wexler has a point.  The U.S. Supreme Court is to blame.  It‘s vague.  Bush v. Gore‘s—the Bush v. Gore decision can certainly be interpreted to say that there must be uniformity in a state election.  In particular, because Florida law requires recounts in certain cases and these new machines don‘t provide for that, but I am tempted to read the Supreme Court‘s opinion as narrowly as possible for practical reasons.

That the opinion focused on court-ordered recounts.  They ruled in those cases there must be some uniformity in the standards.  No court has ordered a recount here.  To read it any other way may be legally sound, but it would mean we‘re heading into this election with no rules, no certainty and the promise that the courts will decide the outcome.

I don‘t want to head into this election with that promise hanging over all of our heads.  Joining me now is Congressman Robert Wexler and Republican Congressman Clay Shaw.  All right.  Gentlemen, thanks very much for coming on the program.  Congressman Wexler, let me let...

(CROSSTALK)

ABRAMS:  ... let you start and tell us why you think I‘m wrong on this.

REP. ROBERT WEXLER (D), FLORIDA:  Well, there are really two significant issues.  One is Florida law clearly requires a manual recount in close elections.  There are no exceptions to that requirement in state law.  And the problem is the electronic machines that are in place in Palm Beach, Broward, Miami-Dade, and other counties cannot provide for manual recount in a close race.

ABRAMS:  So what do you want them to do now?  I mean we‘re weeks away from the election.  What as a practical matter could be done today?

WEXLER:  Yes.  Let me be clear.  I don‘t want to do anything that creates chaos or at least additional chaos.  I have brought this out and have been on a campaign literally with the secretary of state and the governor for over two years to address this problem.  When I filed the lawsuit, it was almost a year before the election.  And I had hoped that we would resolve this in the calm of spring, quite frankly, not two weeks before an election.  But the governor has delayed and delayed.  The secretary of state refused to consider alternatives as did the secretary of state in California, in Ohio, and in many other states, so in those states you don‘t have this 11th hour rush to the courthouse.

ABRAMS:  All right.  Representative Shaw, your response.

REP. CLAY SHAW ®, FLORIDA:  Well I think first of all, I think it‘s important to realize that here in Florida each county selects the type of voting machine and apparatus that is to be used.  The electronic machines that we have now in place in Florida will virtually be in place all over the country in 2006.  So in this regard, Florida is way ahead of the curve and is on top of technology.

Now if you‘re going to electronic voting, the only machine that I am aware of that is now being tried in Nevada is the only machine that is out there and is being tried for the first time.  So I don‘t think that you can have electronic voting...

ABRAMS:  Yes.

SHAW:  ... as people seem to want and then have that paper trail, at least not where we are in this particular situation.

ABRAMS:  Yes...

SHAW:  Rob and I have talked about this over the year.  But it‘s important I think for both of us—we both got elected with these very machines back in 2002 and none of us really objected to it.

ABRAMS:  So Representative Wexler, apart from that, though, as a practical matter, I mean I understand you‘re saying look you brought this a long time ago.  This is nothing new in terms of your cause, but the bottom line is the election is happening in two weeks.

WEXLER:  Yes.

ABRAMS:  If you had your way, what would happen tomorrow?

WEXLER:  I think the federal court should rule with two different directions.  One a long-term direction meaning that for 2006, the court should require a paper trail...

ABRAMS:  Fine.

WEXLER:  ... whether it be on an electronic machine or another type of machine.

ABRAMS:  All right.  But how about for 2004?

WEXLER:  For the next two weeks I would hope that the court would rule that we put in safeguards, which would minimize the opportunity either for a computer malfunction or for some type of malicious behavior...

ABRAMS:  Representative...

WEXLER:  ... such as...

ABRAMS:  Sorry...

WEXLER:  ... if I may...

ABRAMS:  Yes.

WEXLER:  ... we ought to have random testing on Election Day, which would provide a degree of certainty.  It was done in other states.  It should be done in Florida.  We ought to be able to count the number of votes that the electronic machines are tabulating them at any time of the day and compare that to the number of people who signed into the precinct to make sure that there‘s no large discrepancy.  Things of that nature with monitors and the supervisors of elections and secretary of states office would do a long way to calm some of the fear.

ABRAMS:  Representative Shaw, do you have any problem with that?

SHAW:  I have full confidence that we‘re going to have a very smooth election here in Florida come November 2.  I think it‘s important to realize that these machines do have some capability for a printout of over votes and under votes.  Also, Steny Hoyer and I, who is the Democrat Whip in the United States Congress, signed a letter back in March praising these machines because of the confidentiality that it allowed the people with disability.

ABRAMS:  But isn‘t Congressman Wexler right, though, as a legal

matter?  I mean Florida law mandates—doesn‘t just offer it as an option

·         it mandates recounts in certain cases and it does seem that using these systems you won‘t be able to do that, at least when it comes to over votes.

SHAW:  Well, I understand where Rob is coming from on this, but I can remember when I first started voting, the old voting machines, you had a big lever that you‘d swing over.  The machine would close the curtain behind you.  You‘d pull down the levers you want and you would open it and it was purely mechanical and there was no paper.

ABRAMS:  Yes.

SHAW:  Absolutely paperless.  There couldn‘t be any type of—you couldn‘t even run paper on the over and under votes...

ABRAMS:  Well...

SHAW:  ... so...

(CROSSTALK)

SHAW:  ... I don‘t see the problem here.

ABRAMS:  Congressman Wexler, final 10 seconds.  Yes.

WEXLER:  The big problem here in terms of the November election is if we have a close race in Florida, whether it‘s Senator Kerry or President Bush, if they‘re on the losing end and a manual recount is required, either one of those candidates will be entitled to a manual recount and they won‘t get it.

ABRAMS:  That‘s true...

WEXLER:  And what are we going to do?

ABRAMS:  That‘s true...

SHAW:  Well, I‘d like to...

(CROSSTALK)

SHAW:  ... I‘d like to just say one thing.  We may not have a perfect paper trail, but my God, there is certainly a legal trail here in Florida.  I have never seen so many preemptive lawsuits...

ABRAMS:  Yes.  All right...

SHAW:  ... in my life.

ABRAMS:  Congressman Wexler, Congressman Shaw, thank you both very much.

WEXLER:  Thank you.

ABRAMS:  Appreciate it.

SHAW:   Thank you.

ABRAMS:  Coming up, why would Michael Jackson be registered to vote in Ohio?  That is what the sheriff in one small town wanted to know and it turns out a man was allegedly being paid with drugs to register what turned out phony voters.  We talk to the sheriff who arrested him.

And Fox News may not be giving a lawsuit against Bill O‘Reilly much coverage.  One of you wonders if others are covering it because we want to see him discredited.  We get to your e-mails...

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  Who would have thought that Mary Poppins, Michael Jackson and George Foreman all lived in the same tiny little voting district in Ohio, not Beverly Hills, California.  Officials in Defiance, Ohio, uncovered a number of voter registration forms with familiar names like Dick Tracy and Janet Jackson all with the addresses in the same Ohio block.

The town sheriff, whom we‘ll talk to in a moment, did some investigating and arrested a man who allegedly filled out more than 100 fake voter registration forms, but that‘s not all.  It wasn‘t a spoonful of sugar that got Mary Poppins to register a vote.  A spoonful of something else might have been responsible.

Authorities say Chad Staton may have been paid with drugs, crack cocaine, for his efforts.  Who paid him?  Authorities say a woman named Georgianna Pitts confessed to just that.  She says she was working with the NAACP Voter Fund in Toledo as a volunteer.  Authorities say Pitts hired Staton to get people to fill out the voter registration forms and in return, Pitts gave Staton crack.  Police raided Pitts‘ home and found drug paraphernalia, marijuana, voter registration forms.  She‘s now facing drug charges.  Not surprisingly, her neighbors were a little surprised to hear the news.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  She doesn‘t appear to be the type of person that would do that type of thing or even be interested enough in politics.

(END VIDEO CLIP)

ABRAMS:  Yes, you‘ve got two problems.  She apparently, according to the neighbor, didn‘t seem like a drug dealer and wasn‘t interested in politics.

We called the NAACP.  They would not come on the program.  They did give us this statement.

Quote—“The NAACP National Voter Fund is shocked by the stories swirling in Ohio regarding a Defiance man who has allegedly filled in over 100 fraudulent voter registration forms in exchange for cocaine.  The NAACP National Voter Fund has detailed guidelines outlining procedures that should be followed by volunteers.  The individual arrested is not a volunteer on record with our organization.  Any person who walks—works on behalf of NVF is required to abide by these guidelines and all applicable federal and state law.”

Joining me now is the man who arrested the man for faking the voter registration forms, Defiance County Ohio Sheriff David Westrick.  Sheriff, thanks very much for taking the time to come on the program.  We appreciate it.

SHERIFF DAVID WESTRICK, DEFIANCE COUNTY OH:  Thank you very much.

ABRAMS:  Tell me how you found out about this.  I mean, you know, first you find out about fake voter registration forms.  Does it all come together at one time or did it come in sort of point-by-point?

WESTRICK:  Well, we were contacted by our Board of Elections here in Defiance County and stated that they had received over 100 voter registrations from Cuyahoga County and that they didn‘t look right.  And so we went over and picked them up and we started to look at all of them.  And when we saw that Janet Jackson and Dick Tracy had signed up to vote in Defiance County, we thought that to be suspicious.  And through looking at all of those, we came up with a common denominator and that was Chad Staton.

ABRAMS:  So, you found that all the handwriting seems to match, et cetera.  You get this group of forms together, and then what happened?  How do you find out that at least this woman says she was paying—she admits that she was paying him crack to fill out these voter registration forms?

WESTRICK:  She was helpful to law enforcement.  Chad stated that he was given a choice of crack or money and he chose to be paid with crack cocaine.  And with—along with the help of the Toledo Police Department, we did a search warrant of her home and came up with some paraphernalia and also some voter registrations and she was also cooperative with law enforcement.

ABRAMS:  So, again, so let‘s be clear.  Neither of them are denying the allegations that you are laying out, is that correct?

WESTRICK:  That‘s correct.  Neither are denying that.

ABRAMS:  And how does this woman explain—I mean she is supposedly volunteering her time working to get people registered to vote.  How does she explain her thinking process in giving this guy crack to fill out the voter registration forms?

WESTRICK:  Well, she stated she was paid $2 for each voter registration form that she could get for Thaddeus Jackson who works for the NAACP.

ABRAMS:  And they deny that, correct?

WESTRICK:  And—well, no, Thaddeus Jackson works for the NAACP and Georgianna Pitts was working for the NVF, and that isn‘t denied.  That...

ABRAMS:  What about the $2 though, the $2 per, is that—do they admit that they were paying her $2?

WESTRICK:  Well, our calls to the NAACP have gone unanswered, but we had receipts there that showed where they had paid her $2 to get people to register to vote.

ABRAMS:  Is that legal?

WESTRICK:  I believe it is.

ABRAMS:  Yes.  OK.  So that‘s not the problem here as a legal matter, right?  The legal problem...

WESTRICK:  No, the problem...

ABRAMS:  Yes.  Go ahead.  I‘m sorry.

WESTRICK:  ... is that Georgianna Pitts paid Staton with crack cocaine for the 100-plus registrations he took to her.

ABRAMS:  And again, any, you know, any indication from her as to how she decided, you know what, I really am interested in getting, you know, the vote out in this election and you know I‘m thinking of a good way might be to pay this guy with crack.  She give you any sense of what led her to come up with that solution?

WESTRICK:  Well, Georgianne thought what she was doing was very important getting people to register.  It was just her way of paying for it is a way out of the ordinary.

ABRAMS:  Yes, to say the least.  All right.  Sheriff, finally, one other question.  Sheriff, just to state for the purpose of disclosure, you are Republican-elected—is that true?

WESTRICK:  That‘s correct.

ABRAMS:  And to those who say this is political, you would say what?

WESTRICK:  They don‘t know me very well.

ABRAMS:  Sheriff Westrick, thanks for coming on the program. 

Appreciate it.

WESTRICK:  Thank you.

ABRAMS:  Good to see you.  From now until Election Day, we‘re going to keep on top of all the legal issues that could impact the election.  You can get more information on NBC‘s “Making Your Vote Count” project on our Web site, abramsreport.msnbc.com.  While you‘re there, sign up for our newsletter.  Jamie will keep you up to date on what‘s going on.  She is writing these great newsletters.  You‘ll know ahead of time what stories we‘re covering each day. 

Coming up, we asked the question last week, should felons have the right to vote?  And what about those on trial?  Can Scott Peterson vote for president this year?  One of you wants to know.  I have the answer coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, why the election lawyers are more than just lawyers.  They are fair game for political attacks as well and expect that to happen soon.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—the politics of the law.  Why the

lawyers for both President Bush and Senator Kerry will be and should be

fair game in the political arena.  They all claim to be simply fighting to

·         quote—“make sure every valid vote is counted.”  Each side has mobilized thousands of lawyers to fight in some of the key swing states, Florida, Pennsylvania, Colorado, Wisconsin, the list goes on and on.

In 2000 I was there for each and every one of the major legal battles from Florida to Washington back to Florida to Washington.  And every lawsuit was part law, part politics.  Even the filing of a lawsuit became political and that‘s to be expected.  Allowing lawsuits to determine elections is a new phenomenon that most voters disdain.  Who is right or wrong is a separate question.

But if the only goal was to make sure every vote is counted, the lawyers wouldn‘t just be in the swing states, they would be in every state with potential problems.  Of course, that‘s not reality.  The overwhelming majority are in the battleground states.  The right call, but still politics pure and simple.

So expect to see attacks on the lawsuits, likely by Republicans because so far the Democrats have filed around 35 lawsuits.  The Republicans just a handful.  Sure the Democrats would say it‘s the result of the disenfranchisement of certain voters but as a matter of pure politics that‘s beside the point.  Most voters don‘t want to feel like the outcome was determined by lawyers, even if those lawyers have a winning argument.

Some advice from someone who went from courtroom to courtroom in 2000.  The facts in the law in this area can be murky.  As a result, the law is only part of the answer to supposedly legal questions.  Judges are human.  Voters are short-tempered and lawsuits are easy political targets.

I‘ve had my say, now it‘s time for “Your Rebuttal”.  More on the sexual harassment suit filed against Fox News talk show host Bill O‘Reilly.

From Virginia Ian Atkins.  “Isn‘t it ironic that O‘Reilly refuses to address his case because his lawyers advise against it?  Ironically O‘Reilly even ridiculed Michael Jackson‘s extortion claims.”

As always, those of you writing in saying we‘re being unfair, coming at us from both sides on this one.  Roger Parks, “Why do I get the feeling that the coverage you and MSNBC are giving to the O‘Reilly story is a jackal‘s feeding frenzy?  Do you suppose it could be because you‘d like to see him discredited?”

And Shadrach Nkansa.  “Why is the media and your show so focused on this woman who has brought charges against Bill O‘Reilly?  This is how powerful the media has become.  They protect their own and destroy the life of innocent people.”

On Friday we asked whether convicted felons should have the right to vote.  I said the voting is not—is a right not a privilege.  That ex-cons should be able to vote but only after they‘ve been released.

Della Ramsey, a court reporter in Miami-Dade County writes, “I see all kinds of felons and don‘t want any of them voting.  Please Dan, they‘re felons for a reason and it‘s not always pretty.”

Agreed Della, but how does that mean they should not be able to vote? 

We‘re not asking them to baby-sit.

From Las Vegas, Nevada Joann Shelley.  “Once someone has completed a sentence why are we punishing them?  If they are not allowed to vote, they should be exempt from taxes as well.”

And John Qualls from Monticello, Arkansas with a little humor echoed by a few of you, same letter.  “Isn‘t there a law about ex-felons associating with known criminals?  So they should stay away from politics all together.”  All right (UNINTELLIGIBLE).

Bill McManus in Hawaii.  “Does Scott Peterson get to vote?  He‘s charged with felonies, but until a conviction comes in, can he vote while incarcerated?  You and your entire staff run the best show on cable.”

Well thank you, Bill.  The answer is yes.  He is still presumed innocent and in California, Peterson can vote, if he wants to, until he is convicted.

Your e-mails abramsreport—one word -- @msnbc.com.  We go through them at the end of every show.

Coming up next, “HARDBALL” with Chris Matthews.  Thanks for watching. 

See you tomorrow.

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

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