updated 10/26/2004 10:17:18 AM ET 2004-10-26T14:17:18

Guest: Eugene Volokh, Andrew Koppleman, Dean Johnson, Daniel Horowitz, Mercedes Colwin

DAN ABRAMS, HOST:  Coming up, Supreme Court Justice William Rehnquist is hospitalized just eight days before the election.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Rehnquist has been on the Supreme Court since 1972.  At 80, he‘s not the only justice well past retirement age.  Either Senator Kerry or President Bush will likely get to shape the court for years to come.  Who would each choose and what would that mean for the big legal issues from abortion to affirmative action?

And Scott Peterson‘s lawyers play a tape of Peterson talking to his brother on the day he was arrested, trying to prove he wasn‘t on the run from police.

Plus, the defense tries to show that Laci‘s mother may have changed her story when she found out about Scott‘s affair with Amber Frey.  Is attacking the victim‘s mother a good strategy?

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, a shiver ran through anyone who remembers the uncertainty and confusion that came with the 2000 election recount after it was announced that Chief Justice William Rehnquist had been hospitalized with thyroid cancer.  With the polls showing the country almost evenly divided eight days before voting for president, and the possibility that the election could be decided in the courts, the last thing anyone needs is a court divided into four red jurists and blue jurists—a 4-4 split.

The good news about the bad news is that Justice Rehnquist will keep working while his illness is treated and expects to be back on the bench when the court reconvenes next Monday.  That being said, Justice Rehnquist is just one of four on the court who driven by age and possibly illness could be considering retirement.

NBC‘s Pete Williams has more.

(BEGIN VIDEOTAPE)

UNIDENTIFIED FEMALE:  Our civil rights and our civil liberties...

UNIDENTIFIED GROUP:  (UNINTELLIGIBLE)

PETE WILLIAMS, NBC NEWS CORRESPONDENT (voice-over):  But any potential shift in the Supreme Court depends not just on who‘s elected president but also on who decides to retire.  It would likely change lease, for example, if conservative Chief Justice Rehnquist, who just turned 80, stepped down and was replaced by a President Bush.  Not much change either if the more liberal John Paul Stevens, who‘s 84, and the oldest justice retired and was replaced by a President Kerry.

But what if the more moderate Sandra Day O‘Connor, now 76, stepped down and George Bush was re-elected.  Elliot Mincberg of the liberal People for the American Way Foundation, says that could produce a seismic change, a move to the right on nearly all the hot button issues in which Justice O‘Connor has cast the deciding vote.

ELLIOT MINCBERG, PEOPLE FOR THE AMERICAN WAY FOUNDATION:  No question that Sandra Day O‘Connor is the swing vote in a variety of 5-4 cases that could fundamentally shift America‘s basic rights and responsibilities for the next 40 years.

WILLIAMS:  Close votes have recently upheld affirmative action in college admissions, an expansion of gay rights and preventing restrictions on abortions.  Mr. Bush has consistently said he‘d favor someone like Antonin Scalia or Clarence Thomas, the court‘s two most conservative members.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  I will continue to appoint federal judges who know the difference between personal opinion and the strict interpretation of the law.

WILLIAMS:  But some legal scholars say the closely divide U.S. Senate would likely block anyone but moderate nominees no matter who‘s elected president.

PROF. MARK TUSHNET, GEORGETOWN UNIV. LAW SCHOOL:  The effect will be to drive the justices who get on the court more or less towards the middle or towards where the court now is.  So I wouldn‘t expect dramatic changes over the next few years.

(END VIDEOTAPE)

ABRAMS:  Pete Williams did that story when the court started its term.  Dramatic changes or not, it seems change is likely, whether Kerry or Bush is re-elected.  Kerry become president, Bush re-elected.

Joining me now to talk about the big legal issues a revised court might face and the judges, scholars and officials who could be waiting in the wings.  I‘m joined by two Supreme Court watchers, Eugene Volokh, a constitutional law professor from UCLA, who once clerked for Justice Sandra Day O‘Connor and Andrew Koppleman, a Northwestern University constitutional law professor.  Gentlemen, thanks very much for joining us.  Appreciate it.

(CROSSTALK)

ABRAMS:  All right.  Let me just start right off the bat with the abortion decision.  Let me read from a little bit of the 1973 decision.  Here it is, Justice Harry Blackmun.

State criminal abortion laws violate the due process clause of the 14th Amendment, which protects against state action the right to privacy including a woman‘s qualified right to terminate her pregnancy.  And then in 1992, the court sort of tweaked it a little bit.

The court upheld a woman‘s right to have an abortion, but gave states the power to impose limits on abortion in Planned Parenthood v. Casey.

Before we get into the whole business of who each one might appoint, Professor Volokh, how do you think the abortion ruling would be changed depending if Kerry becomes president or if Bush remains president?

EUGENE VOLOKH, UCLA CONSTITUTIONAL LAW PROFESSOR:  It seems pretty clear that if Senator Kerry becomes president, then abortion rights will be strengthened and conversely what some people see as the rights of the unborn will be even more permanently relegated to the background.  On the other hand, if President Bush is re-elected, it‘s harder to tell for a couple of reasons.

One is despite some Reagan and Bush senior appointments in 1992, the Supreme Court did not substantially cut back on abortion rights.  So it‘s possible that even more moderate conservative appointments will still end up voting to uphold the past precedence.  What‘s more, even if Roe and Casey are overturned, given the politics of abortion today, chances are that (UNINTELLIGIBLE) a great majority of states, abortion would be legal as a matter of state law.

ABRAMS:  Right, but that has nothing to do with the U.S. Supreme...

VOLOKH:  No, no, I do think it has...

(CROSSTALK)

VOLOKH:  ... it‘s an important point.  The question isn‘t should abortion be banned...

ABRAMS:  That‘s right.

VOLOKH:  ... or should abortion be legal everywhere.

ABRAMS:  Right.

VOLOKH:  The question is should abortion be legal everywhere whether it should—or whether it should be up to each state.

ABRAMS:  That‘s right.  That doesn‘t change, though, depending on who becomes—that‘s just framing what the legal issue was that was before the court.

VOLOKH:  That‘s right.

ABRAMS:  Professor Koppleman, do you agree with that analysis?

ANDREW KOPPLEMAN, CONSTITUTIONAL LAW EXPERT:  I think that that‘s substantially right, yes.  There—it really depends on what your situation is.  I think that for most women in the United States who can afford to spend the money on abortions, or if they‘re—or who can afford to travel, that their right...

(CROSSTALK)

KOPPLEMAN:  ... to abortion isn‘t likely to be much jeopardized.

ABRAMS:  Right, but let‘s talk about...

KOPPLEMAN:  If you‘re a poor woman...

ABRAMS:  But I want to talk strictly about the court, though.  I don‘t want to talk policy issues on what each state is going to do.

KOPPLEMAN:  Well...

(CROSSTALK)

KLIEMAN:  ... two are related...

ABRAMS:  I know they‘re related...

KOPPLEMAN:  Yes.

ABRAMS:  ... but I don‘t want to get into a discussion about what each state is going to do.  I want to talk about whether the court will continue its statement, which is that it has to be legal in every state.  That‘s what the U.S Supreme Court has ruled and that‘s the question I want to just to determine.  Professor Koppleman, do you agree?

KOPPLEMAN:  It‘s certainly much more likely to say that if Kerry gets to make the next few appointments than if Bush gets to make the next few appointments.

(CROSSTALK)

VOLOKH:  That‘s absolutely right.

ABRAMS:  And we‘re talking about Chief Justice Rehnquist—let me go to this piece of sound from Chief Justice Rehnquist.  This is last year when he was on the—interviewed by the “Today” show on the issue of retiring.  Here‘s what he said.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  At age 79, you can‘t help but thinking about retirement.

UNIDENTIFIED FEMALE:  Seriously?

UNIDENTIFIED MALE:  Well...

UNIDENTIFIED FEMALE:  Are you making news here?  Are you telling me?

UNIDENTIFIED MALE:  No, I assure you I‘m not making news.  I‘m just saying when you get to be 79 years old, you know, your life expectancy isn‘t what it once was and you‘ve got to think about the possibility of retirement.

(END VIDEO CLIP)

ABRAMS:  And of course, we‘re, you know, we‘re talking about this in the whack of Justice Rehnquist announcing that he has—is being treated for cancer, although he‘s expected back on the court Monday.  Let‘s talk about another important decision, came out in the last couple of years, want to figure out if it will change based on a Kerry or Bush presidency.  Private homosexual conduct, sodomy law, the case was Lawrence v. Texas. 

Here was the Justice Anthony Kennedy‘s ruling.

The nation‘s laws and traditions show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.

Professor Volokh, this was a sort of surprise ruling, I think, to some.  Again, does this change, do you think, depending on Kerry versus Bush as president?

VOLOKH:  Well, if Kerry is elected, then certainly this decision will be reaffirmed.  It probably wouldn‘t even be challenged.  If Bush is re-elected, then it‘s possible a couple of retirements, things might change.  Again, though, it doesn‘t seem—it doesn‘t seem by any means certain Kennedy and O‘Connor, who are both appointees of President Regan are pretty conservative Republican, voted with the majority there.

And, in fact, I think there are relatively few people on the right who feel very, very strongly about the supposed need to change this.  This isn‘t the same, I think, hot button thing as abortion is.  The really interesting question is what will happen with regard to gay marriage rights.  I think that today‘s court, and certainly a court that would be there after President Bush named some more justices, will almost certainly say that it‘s up to each state to decide whether same sex marriage is to be recognized.

ABRAMS:  All right.

VOLOKH:  Whereas with Kerry, it‘s at least conceivable, even not President Kerry has not announced himself of being in favor of same-sex marriages.  The kinds of people that it‘s likely that he would appoint come from kind of an ideological wing of the party that is more likely to say wait a minute, you know, not only must same-sex conduct be legally permitted, it has to be legally sanctioned through same-sex marriage.

ABRAMS:  That‘s what he said.  But he said he‘s opposed to that...

VOLOKH:  Well that‘s right, but it‘s almost certain...

ABRAMS:  You‘re right...

VOLOKH:  ... he won‘t use as a litmus test...

ABRAMS:  Right.

VOLOKH:  ... oh, no same-sex marriages...

ABRAMS:  Right.  Right.  Right.  Right...

(CROSSTALK)

ABRAMS:  Professor Koppleman, do you agree with it?

KOPPLEMAN:  It seems to me that there is zero likelihood of the Supreme Court legalizing same-sex marriage under either Bush or Kerry.  Imagine that Kerry got four appointments to the Supreme Court, and that‘s the most he‘s going to get.  Five justices of the court are relatively young and healthy.  It doesn‘t seem likely that any of them will leave the court, even in the next eight years.  There‘s not a single judge on the Supreme Court today who‘s inclined to recognize same-sex marriage.

(CROSSTALK)

KOPPLEMAN:  You look at the opinions in the Lawrence case.  Not one, so I don‘t see where the votes would come from.

VOLOKH:  You know Andy might be right.  It‘s hard to tell.  They didn‘t have to opine on that subject.  I do think...

ABRAMS:  Yes.

VOLOKH:  ... that Justice Kennedy and O‘Connor, for example, the swing voters in Lawrence were unlikely to recognize it.  But I think it‘s certainly possible that Justice Souter might vote to recognize a right to same-sex marriage, much like the Supreme Court in Vermont...

(CROSSTALK)

ABRAMS:  It‘s a long shot...

(CROSSTALK)

ABRAMS:  It‘s a long shot.  It‘s a real long shot.

(CROSSTALK)

ABRAMS:  I think Professor Koppleman is right, but it‘s a real long shot no matter who gets...

(CROSSTALK)

VOLOKH:  You know it was a long shot, the Vermont decision...

ABRAMS:  Yes, I understand...

VOLOKH:  ... and the Massachusetts decisions were thought to be long shots I think five or six years ago, too.

ABRAMS:  Yes.

VOLOKH:  It‘s very hard to predict what‘s going to be happening...

ABRAMS:  Well, it‘s always hard to predict.  All right.  Let me just play two pieces of sound.  We‘re going to go to break with this.  This is President Bush and Senator Kerry talking about what they‘re looking for when it comes to certain issues related to the Supreme Court.

(BEGIN VIDEO CLIP)

BUSH:  Because the union of a map or woman deserves an honored place in our society, I support the protection of marriage against activist judges.  And I will continue to appoint federal judges who know the difference between personal opinion and the strict interpretation of the law.

SENATOR JOHN KERRY (D-MA), PRESIDENTIAL CANDIDATE:  I subscribe to the Justice Potter Stewart standard.  He was a justice on the Supreme Court of United States and he said the mark of a good judge, a good justice is that when you‘re reading their decision, their opinion, you can‘t tell if it‘s written by a man or a woman, a liberal or a conservative, a Muslim, a Jew, or a Christian.  You just know you‘re reading a good judicial decision.

(END VIDEO CLIP)

ABRAMS:  Professor Volokh and Professor Koppleman are going to stay with us.  Coming up, on the question of who the court—who might make it to the court?  Who might each of the candidates appoint?  We‘re going to talk about that.  And how conservative are they?  How liberal are they?

And in the Scott Peterson trial, we‘ve heard the phone calls prosecutors have played in the case, now it‘s the defense‘s turn.  Jurors today hear a call between Scott and his brother on the day he was arrested.  We‘ve got it.  Jurors could get the case as early as next week.

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, the next president could shape the U.S. Supreme Court like few other presidents have.  The question - who would Senator Kerry or President Bush choose in the next term?  Coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

BUSH:  I would pick people that would be strict constructionists. 

We‘ve got plenty of lawmakers in Washington, D.C.  Legislators make law. 

Judges interpret the Constitution.

KERRY:  George W. Bush has told you that Justices Scalia and Thomas are the kinds of judges that he will put on the Supreme Court.  Well, that‘s “W”.  That‘s wrong choices, wrong direction, wrong leadership for America.

(END VIDEO CLIP)

ABRAMS:  That was President Bush at the second presidential debate talking about the type of people he would select if there was a vacancy on the Supreme Court.  His opponent, John Kerry, delivering remarks at the National Baptist Convention in New Orleans, saying President Bush‘s choices for the high court would be too conservative.

So now we discuss some of the issues that might face a new court.  Let‘s take a look at some of the potential candidates who could be making these crucial decisions.  All right, Professors, I‘m going to ask you to—

I‘m going to go through, first of all, a group of six we‘ve chosen each—from each possible administration.

Let‘s start with the—with President Bush, who he might choose.  All right.  We‘ve got Harvey Wilkinson, Edith Jones, Alberto Gonzales, Larry Thompson, Michael Luttig, and Ted Olson, ranges from former solicitor general to federal courts of appeals judges, to people who have worked in this administration.

Professor Volokh, who do you think is the most like—I know we‘re reading tealeaves here to a certain degree because there really is no way to truly know.  But you know, who—if you were a betting man, who might be the couple that you would bet on in a Bush administration?

VOLOKH:  This is one of the many questions in which the answer is those who know don‘t tell.  Those who tell don‘t know.  But if you really want me to say, from a political perspective it is generally thought that naming a Hispanic, in particular Alberto Gonzales is often the one most talked about, would be just a very important step.  The fact is that these kinds of jobs have always been political offices.  Religion section of the country, ethnicity have always been important roles.  So I think that would give an edge to Judge Gonzales, as I understand that there may be some political problems on the conservative movement...

ABRAMS:  Because they‘re unsure, right?  They‘re unsure about...

VOLOKH:  Pardon?

ABRAMS:  They‘re unsure about where he may come down on certain issues.

VOLOKH:  Yes, I think that that‘s right.  I think he‘s not seen as hard-line conservative as some are.  But I do think that both politically and from perspective of the president‘s personal loyalties, the conventional wisdom is that he‘s got a substantial edge, plus also he‘s more likely to be confirmable in a way that say Judge Jones who is I think quite well regarded, but who is also regarded I think correctly as being quite conservative might find it harder to be confirmed.

ABRAMS:  What about Ted Olsen, our friend Ted Olsen?

VOLOKH:  You know, I‘ve heard very good things about Ted Olsen.  I think he‘s generally been thought of as a very good lawyer and a very smart lawyer.  It‘s hard to tell, I think, how he would play before the Senate.  And of course, a lot depends on what the Senate will look like.  We aren‘t even sure of that.

ABRAMS:  All right.  Professor Koppleman, let me move to the—some of the possible nominees of the Kerry administration.  Here I think we‘re even speculating even more than a possible Bush administration.  But nevertheless, we‘ve put together a group of six names as well.

Sonja Sotomayor, Kathleen Sullivan, David Tatel, Seth Waxman, Drew Days, Walter Dellinger.  A number of former solicitor generals there, a law professor, a judge, and Judge Tatel would become the first blind judge to be appointed to the court.  Who do you think are the most likely couple in that group?

KOPPLEMAN:  I think that I agree with what Eugene said.  There‘s such a range of considerations before you make an appointment.  I think that Drew Days has the advantage of being black and I think Democratic—the black voters are an important Democratic constituency and so, that‘s an argument for Days.  There are a couple of women on the list.  They‘re all quite liberal.  They‘re all very smart.  They‘re all very good lawyers.  That‘s all that I can tell you.

ABRAMS:  Well how do you think that the decision is going to be made?  I mean give us a sense of how you think they will say—you know, we‘ve got Walter Dellinger‘s name in front of us.  Here are the pluses.  Here are the minuses.  How do you think that that evaluation will be made?

KOPPLEMAN:  Well it‘s—you‘re—as with any political decision, you‘re simultaneously trying to figure out what kind of result you want and what you can get away with, what you can get through the Senate.  Imagine that Senator Kerry is trying to get someone confirmed by a Republican Senate and even  -- or if it‘s Democratic Senate, we know from past experience a minority can filibuster a nomination.  So you‘ve got to think not only about what you want but about what could get through and survive a filibuster...

ABRAMS:  Professor Volokh, do you think that President Bush will think that way?  Because it seems to me that he is going to appoint whoever he thinks is the best candidate and not really care how the Senate feels about it until it gets to that point.

VOLOKH:  Well that‘s certainly one strategy if he wants to highlight the issue and maybe use it as a means for showing the Senate as being obstructionist.  On the other hand, let‘s say there‘s a vacancy and somebody needs to be appointed and the president concludes that he doesn‘t need a big political fight just now.  It‘s very hard to predict these things in advance, not knowing the make-up of the Senate, not knowing the other things on the docket, not knowing what kind of deals he may need to work out.

I think Andy is absolutely right.  This is a quintessentially political decision, as it should be.  It‘s political in the sense that the politicians want to make good policy, but also want to do things that are good politics that makes the most sense for them politically with regard to both the voters and with regard to a Senate with whom they have to work week in and week out.

ABRAMS:  Professor Volokh and Professor Koppleman, thank you very much.

(CROSSTALK)

ABRAMS:  It was great having you on the program.

VOLOKH:  Always a pleasure to be here.

ABRAMS:  A reminder from now until Election Day, we‘re going to keep on top of 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.  Sign up fur our newsletter while you‘re there.  We‘ll let you know ahead of time what stories we are coming and of course, we will be here on Election Day covering the legal battles.

Plus, there it is Election Day.  We‘re going to be here.  And if you‘re having any trouble voting on Election Day or before, you can get help by dialing the NBC News Voter Alert line.  The number is 1-866-MY-VOTE-1, 1-866-MY-VOTE-1.

Coming up, Scott Peterson‘s lawyer play a phone call he made just hours before his arrest, trying to prove he wasn‘t running from police.  We‘ll get a live report from the courthouse.  And when Laci Peterson‘s mother took the stand, she said Scott called her and said Laci was missing.  She said she immediately found his choice of words odd.  Today the defense tries to suggest that maybe mom was lying.  Is an attack on the victim‘s mother a good strategy?  We‘ll ask our legal team.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  The Scott Peterson trial is back in full swing.  The defense putting on witness after witness, trying to chip away at the state‘s case.  They‘re hoping to rest their case by tomorrow.  Today, jurors got another chance to hear directly from Scott Peterson, not in person but on tape.  They heard a phone call he made to his brother just hours before he was arrested.  And now Scott‘s mother, Jackie Peterson is on the stand.

KCRA‘s Edie Lambert is standing by at the courthouse once again for us with the latest.  Hi, Edie.

EDIE LAMBERT, KCRA REPORTER:   Hi, Dan.  Both of Scott‘s parents took the stand today in their son‘s defense.  It was fairly straightforward testimony, not a lot of emotion.  But Jackie Peterson, his mother went first and she did set the tone when Mark Geragos, the defense attorney, asked her to confirm that she is Scott Peterson‘s mother and she said proudly so.  She made three main points for the defense and we‘ll start with all that money that Scott had when he was arrested, all of the cash.

She said the money came from her.  She explained it was in two separate payments.  It was a little bit convoluted, but essentially she was helping one of his brothers buy his truck, realized that she had taken money from a wrong account, so the day before his arrest gave him another $10,000.  She also testified that Laci was walking just about a week before she disappeared.  Of course, the defense theory is that Laci was out walking her dog while she was abducted.

The prosecution have argued Laci had stopped walking at that point because she was uncomfortable with her pregnancy.  Jackie saying just a week before they had spent hours walking around Carmel.  The third major point, she explained that Mercedes that Scott Peterson bought just before his arrest.

You may recall he bought that car in his mother‘s name.  Jackie said today I told him to do that because police had impounded at least one of his trucks and he couldn‘t afford to lose another car.  Lee Peterson, as you mentioned, also testified.  He made a couple of points.  The jury already heard from him in the people‘s case but today again talking about some of Scott‘s behavior just before his arrest.

Specifically, Scott was found with two I.D.s at the time of his arrest, his brother‘s and his own.  Lee Peterson saying I told him to borrow his brother‘s I.D because we wanted to save money on the green fees at Tory Pines Golf Course.  Now, of course, Scott did not golf that day but he was arrested at the golf course.  Lee also said that yes prosecutors portray him as a man on the run.  He was on the run, but he thought it was from “National Enquirer” reporters.

And you mentioned you have that tape now of Scott talking to one of his brothers.  The main point the defense is trying to put out here is that Scott thought he was being trailed by private investigators working for the media.  Back to you.

ABRAMS:  All right.  And we are going to play that tape in a moment. 

As always Edie Lambert thanks a lot.

All right.  Even though Peterson is charged with two counts of first-degree murder, the judge may give jurors the option to convict on a lesser charges.  That is if they believe Scott didn‘t plan to kill his wife and unborn son.  The defense is fighting hard to avoid that.

And one of you writing in with a suggestion for a new product for Bill O‘Reilly‘s “Factor” gear line.  And no, I don‘t think I‘ll be ordering one.

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, the defense in the Scott Peterson case appears to be saying that Laci Peterson‘s mother is lying.  Is that a good move?  First the headlines.

(NEWS BREAK)

ABRAMS:  We‘re back.  In the Scott Peterson case, only minutes ago the defense putting on its case, presenting audiotapes of Scott Peterson that were secretly taped, talking to his brother only hours before Peterson was arrested and they‘re talking about the fact that the authorities had found a body that they thought might be Laci Peterson.  Let‘s listen.

(BEGIN AUDIOTAPE)

UNIDENTIFIED MALE:  Any indication when they might identify these bodies?

UNIDENTIFIED MALE:  No.  No.  There‘s so much hype out there.  It‘s just insane.

(END AUDIOTAPE)

ABRAMS:  The second one there you heard was Scott Peterson.  Now look, on this whole issue of his arrest, I‘ve always said—“My Take” on this, that while all the survival gear in Peterson‘s car, the 15,000 in cash doesn‘t look good.  I think this is one of the defense‘s stronger arguments.  It seems clear to me he knew that they were tailing him.

I‘m going to play a little more tape in a minute.  But joining me now, criminal defense attorneys Mercedes Colwin and Daniel Horowitz and former San Mateo County prosecutor Dean Johnson.  Mr. Horowitz and Mr. Johnson have been in the courtroom.  All right.  Let me play another piece of sound and this is from another conversation between Scott Peterson and his brother.  And this is again, this is the day that Scott was arrested only hours before they arrested him.  Let‘s listen.

(BEGIN AUDIOTAPE)

JOE PETERSON, SCOTT PETERSON‘S BROTHER:  Hey.

SCOTT PETERSON, ON TRIAL FOR MURDER:  Hey, Joe.

J. PETERSON:  Brother, what‘s up?

S. PETERSON:  Oh, I can‘t lose these private investigators.

J. PETERSON:  Oh, god.

S. PETERSON:  I lost them and they—another set got me.

J. PETERSON:  Oh brother.

S. PETERSON:  I don‘t think I should come play golf.

(END AUDIOTAPE)

ABRAMS:  You know, Dean, this seems to me to be a pretty strong argument for the defense that Scott Peterson wasn‘t running down to Mexico.  But that you know he knew that he was being tailed.

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Well sure, if you buy all of this.  But remember, everybody more or less thinks that Peterson knew he was being wiretapped at this same time and this private investigator thing, this is typical of the defense.  We have so many inconsistent ideas here.  At one point Scott asked these so-called private investigators, who are also claimed by the defense to be representatives of the media, whether they‘re from a state or a federal jurisdiction.  Certainly sounds like he knew he was being followed by the police.

ABRAMS:  And Daniel Horowitz, doesn‘t that help—I mean doesn‘t that help the defense, the idea that he knew he was being followed?  I mean he says it was private investigator, which I guess supports his theory that he thought it was the media who was following him.  I guess that‘s the argument, right?

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  Exactly.  We had a coherent opening statement by Mark Geragos, and now we have little battlefields being drawn, so you‘re totally correct.  By having this tape, which is concrete proof that he talked about investigators, not police following him and the fact that his brother confirms that he was golfing that day, as well as his father Lee, who testified today.  We have a staked out ground.  How can the prosecution counter this?  All they can say is we think that this was set up.  In other words, Lee Peterson is lying.  The brother is lying.  It‘s too much.

ABRAMS:  Well the problem is...

MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY:  Dan, can I please...

ABRAMS:  Hang on one sec Mercedes...

COLWIN:  Sure.

(CROSSTALK)

ABRAMS:  Hang on sec.  Hang on a sec.  Hang on a sec.  The problem is you have, according to Mercedes‘ report, you guys have been sitting there in the court.  You have dad saying oh, it‘s my fault that he had an I.D.  and it‘s mom saying oh, it was my fault that he had so much cash.  And oh, it‘s my fault that he had the Mercedes.  I mean look, this sounds like on the whole—I‘ve got to tell you the Peterson parents are lovely people and I‘ve talked to them at length.  I like them a lot.  But the bottom line is that jurors could certainly walk away from all of that, it‘s my fault, it‘s my fault saying mom and dad are trying to cover for boy Scott.  Mercedes...

(CROSSTALK)

COLWIN:  They absolutely can do that and frankly...

(CROSSTALK)

ABRAMS:  Let me let Mercedes.  Go ahead.

COLWIN:  ... most parents, if they‘re going to lose their child through a death penalty case, certainly they‘re going to do all they can to help him.  But they‘re under oath.  They‘re offering plausible explanations for it.  Maybe the jury can sit back and say well if I were a parent, I would lie for my child, too.  But in the final analysis they‘re offering really legitimate excuses for what happened.  I mean that tape, for instance, I think is excellent.  But also there‘s testimony that says that Scott Peterson was writing down license plates.  If he thought it was the authorities, why in the world would he be sitting down writing license plates...

ABRAMS:  Dean, go ahead...

COLWIN:  ... if it were not to say...

(CROSSTALK)

COLWIN:  ... I‘ve got to figure out whether...

ABRAMS:  Right.

COLWIN:  ... these are law enforcement or media.

ABRAMS:  Got it.  Dean, go ahead.

JOHNSON:  Here‘s the problem with that Mercedes, yes, they‘re offering quote-unquote “plausible explanations” but they‘re offering three or four different plausible explanations for every fact.  And some of those plausible explanations are worse than what we‘ve already suspected.  For example, Jackie Peterson testifying that the reason Scott had $10,000 in his car was because she was loaning his brother the money to buy a car and yet she hands him not a check, but $10,000 in cash in an envelope in a museum somewhere in San Diego.  Nothing suspicious about that.

HOROWITZ:  But you can‘t convict Scott Peterson...

ABRAMS:  I know, you can‘t convict...

(CROSSTALK)

ABRAMS:  ... yes, yes, yes, yes...

(CROSSTALK)

HOROWITZ:  Unless his family—unless his parents are liars, Scott is not guilty and that‘s what Geragos is setting up.  He‘s putting the parents in front of Scott...

ABRAMS:  Wait.  But wait...

(CROSSTALK)

ABRAMS:  Wait.  Wait.  But let‘s even assume for a minute that the parents are telling the truth, all right?  You could still—I mean you could still convict Scott Peterson on the other evidence.  I‘ve always said that this whole flight argument while somewhat persuasive is not going to make or break the case.

COLWIN:  No.  And Dan, you know, in the final analysis we‘re talking about $10,000.  No one can start a new life with 10 or $15,000...

ABRAMS:  Mercedes...

COLWIN:  ... in a different country.

ABRAMS:  ... I‘ve got to tell you...

COLWIN:  I don‘t care what the currency exchange is, it‘s not going to happen.

ABRAMS:  I‘ve got to tell you.  Mercedes, the number of people who watch this program who were so furious at you the last time you said that, they said $15,000, you know what I could do with $15,000?  A lot of the people out there feel that they could absolutely...

COLWIN:  Hey, I could do a lot with $15,000...

ABRAMS:  ... start a new life on $15,000.

COLWIN:  ... but not start a new life in a different country with the currency exchange as it is.

ABRAMS:  The—I don‘t think the currency...

COLWIN:  I don‘t think the currency exchange is going to make a difference.

ABRAMS:  Yes...

COLWIN:  ... $15,000...

HOROWITZ:  All he needed to do...

COLWIN:  ... is not enough to start one.

ABRAMS:  Go ahead Daniel.

HOROWITZ:  ... Dan—all he needed to do was go to Mexico so that if he‘s extradited back, he doesn‘t face the death penalty.  He doesn‘t have to stay there forever.  Plus once he‘s in Mexico, you are free to go anywhere.  You can get to Europe anywhere, undetected.  Mexico is an open border into this country and once you‘re there...

ABRAMS:  Yes.  All right...

HOROWITZ:  ... they can‘t trace you...

ABRAMS:  Let me play another piece of sound from the tape of Scott Peterson talking to his brother.  Again, this is on the day he‘s arrested only hours before Scott Peterson is arrested by the police.

(BEGIN AUDIOTAPE)

J. PETERSON:  Where are you at?  Are you just kind of, well I don‘t want to ask you that I guess.

S. PETERSON:  I‘m on Genesee.

J. PETERSON:  Scott that just sucks man.

S. PETERSON:  I know.  God, these guys, they know I‘m onto them.  I stopped on the highway and they you know stopped behind me.  They were just...

J. PETERSON:  God almighty.

S. PETERSON:  I think I better skip it.  I don‘t want a picture of me in the press playing golf.

J. PETERSON:  Yes.  No, I—you‘re right.  Yes.

(END AUDIOTAPE)

ABRAMS:  You know, Dean, one of the things I think that Peterson has working against him is that they‘re talking about whether his wife and child have been found and he‘s sitting there talking about whether there‘s going to be a picture of him in the press playing golf.

JOHNSON:  Yes, exactly.  This guy comes across—the tone rather than the content come across as cold and calculating.  This guy is concerned more about his image in the press.  Remember, at this point there‘s been a body of a woman and a male baby found on the shores of San Francisco Bay, they don‘t know who it is.  This guy is not making one phone call or one trip back to the bay area to find out if the police have discovered anything about the identity of these two bodies.

COLWIN:  Dean...

ABRAMS:  Mercedes...

(CROSSTALK)

ABRAMS:  Let me give...

(CROSSTALK)

ABRAMS:  Let me give Mercedes...

COLWIN:  Dean, if he‘s concerned about—and he should be concerned about his image because frankly everyone is trying to link him up to his wife‘s disappearance, he‘s going to say well, this is just going to add fuel to the fodder—to the fire already.  Here I am, I get the call and I‘m on the golf course.  They‘re going to say of course he killed his wife.  And that‘s what he‘s concerned about.  And you know frankly, so many people haven‘t been convicted because of image, because of the image...

(CROSSTALK)

ABRAMS:  But why is he thinking about that as opposed to the fact that his wife was just found—I mean, according to him, at this point he is still looking for Laci.  He‘s still hoping she‘s going to be found alive...

COLWIN:  Dan...

ABRAMS:  ... and the conversation is more about golf and image than oh, my God, they may have found your wife.

COLWIN:  They already...

(CROSSTALK)

COLWIN:  ... already in the beginning of January...

JOHNSON:  ... let‘s not forget Mercedes...

COLWIN:  ... “Modesto Bee” was already saying that there—all likelihood she would be found in the bay.  That was in January.

ABRAMS:  Yes.

COLWIN:  Now we‘re talking about her body being found in mid April.  I mean that‘s a big...

ABRAMS:  All right...

COLWIN:  ... by then everyone presumed that she was dead...

ABRAMS:  Everyone is going to stick around.  We‘ve got more coming up.  Jurors also heard from Laci‘s mother on tape and the defense suggesting that she may have changed her story once Scott‘s affair with Amber Frey came out.  Saying mom may have changed her story, is that a good strategy?

And those jurors are doing their civic duty like every adult, so if we‘re all required to be on a jury, I ask, should we all be required to vote?  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Tomorrow evening being on Christmas Eve, and on that day Laci‘s husband Scott says he returned around 4:30 to find her missing.  How did you find out?

SHARON ROCHA, LACI PETERSON‘S MOTHER:  He called me.  He thought she might be at my house.  He called and when I answered the phone he said mom, is Laci there?  And I told him no and then he told me that the car was there and the dog was there but she wasn‘t.  So then he started calling friends to see if anybody had talked to her.

(END VIDEO CLIP)

ABRAMS:  The mother and brother of Laci Peterson on the “Today” show.  That was six days after Laci went missing.  And now the defense team is trying to use that very interview to suggest that maybe Laci‘s mother is either lying or shaping her testimony to help prosecutors, because you heard on the tape she said that Scott said to her is Laci there as opposed to him saying, well, Laci is missing, which she said she thought was an odd use of words.

Dean Johnson, is this a risky strategy for them to be sort of attacking the mother of the victim here?

JOHNSON:  It‘s not just a risky strategy; it‘s a terrible mistake.  There are two basic rules.  You don‘t spit on the victim‘s grave and you don‘t disrespect the victim‘s mother.  It‘s very clear to everyone in that courtroom what happened.  All these quotes are taken from a time when the entire family was supporting Scott Peterson.  It was only after the facts starting coming out with—beginning with Amber Frey that Sharon Rocha looked back on this and looked back on the wording of that conversation and told everybody that those words Laci is missing had been bothering her all along.

(CROSSTALK)

JOHNSON:  This is a huge mistake...

ABRAMS:  Daniel Horowitz, do you agree with that?

HOROWITZ:  No, totally disagree.  Geragos is energizing his base.  He‘s not going for a win.  He‘s looking to energize those three or four jurors on his side and give them something emotionally strong.  Sharon Rocha changed her testimony.  Then they can sit in the jury room and be angry about it.  So Dean...

ABRAMS:  Be angry at the victim‘s mother...

JOHNSON:  Oh come on...

ABRAMS:  They can be angry at the victim‘s mother...

(CROSSTALK)

HOROWITZ:  You know what?  It may sound risky but yes, he has got to hit on every emotional point.  Sharon Rocha right now is a hit man for the prosecution and she is trying to put Scott Peterson in his grave.  Geragos has a right to put on the parents to defend Scott...

ABRAMS:  He has a right to do everything...

(CROSSTALK)

JOHNSON:  Oh wait a minute...

(CROSSTALK)

COLWIN:  I think it‘s a huge risk Dan...

(CROSSTALK)

JOHNSON:  This is...

ABRAMS:  Hang on.

JOHNSON:  This is the wrong stop to pull out.  He offended everyone on that jury...

(CROSSTALK)

COLWIN:  I think...

(CROSSTALK)

ABRAMS:  Hang on.  Hang on...

(CROSSTALK)

ABRAMS:  Mercedes...

(CROSSTALK)

ABRAMS:  Mercedes...

(CROSSTALK)

ABRAMS:  Mercedes...

(CROSSTALK)

ABRAMS:  Mercedes...

(CROSSTALK)

ABRAMS:  Mercedes...

COLWIN:  I think you have to do a cost-benefit analysis.  I think that the cost of trying to impugn this woman‘s integrity outweigh the benefits, frankly and I probably would not have done that.  And it‘s just something that wasn‘t necessary.  Because I already have that she had already started talking about Laci in past tense anyway...

ABRAMS:  Here‘s the other piece...

COLWIN:  ... so you can use it to your benefit.

ABRAMS:  ... the other piece...

COLWIN:  I wouldn‘t go after...

ABRAMS:  ... the other piece of sound they have been talking about, again from the “Today” show, this time it‘s Sharon Rocha and I‘ll explain to you the significance in a moment.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  They were married in 1997 and after trying for more than a year, Laci got pregnant.

ROCHA:  By 7:00 a.m. on Sunday June 9, I think every one of her friends and family knew.

UNIDENTIFIED FEMALE:  Everyone in Modesto...

ROCHA:  Everyone in Modesto knew Laci was pregnant.

(END VIDEO CLIP)

ABRAMS:  Now Daniel, this is even crazier.  They‘re using Sharon Rocha‘s testimony there to try and bolster their account of how pregnant Laci was, at what time she was pregnant.

(CROSSTALK)

HOROWITZ:  This is really insane because Dr. March was a terrible witness and they should just walk away from him.  Maybe put on Cyril Wecht...

ABRAMS:  Yes.

HOROWITZ:  ... or somebody good.  And instead, they‘re using hearsay...

ABRAMS:  This is—yes...

HOROWITZ:  ... which the prosecution did not object to, Dan.

ABRAMS:  All right.  Dean...

HOROWITZ:  I don‘t understand that.

ABRAMS:  Dean, I want to get another issue, very quickly with you—a lesser-included offense.  He‘s charged with first-degree murder, premeditated murder.  The defense wants it all or nothing, right?  And yet, the prosecutors want to say look, we‘ve got to let this jury consider lesser offenses.  Why is that important?

JOHNSON:  Well it‘s an absolute no-brainer under the law.  Geragos is going to lose that.  It‘s important because Geragos doesn‘t want what is a very likely scenario in this case, a compromised verdict of a second-degree murder and a second-degree murder.  He wants to go all or nothing.  He wants the jury to have to find beyond a reasonable doubt that Scott premeditated and therefore committed first-degree murder.  And quite frankly, the evidence on premeditation is not the strongest.  So it‘s strategic move.  But under California law, the judge will reject that argument.  The judge has to instruct on every offense...

ABRAMS:  Yes.

JOHNSON:  ... that‘s supported by the evidence.  And necessarily...

COLWIN:  But Dan...

(CROSSTALK)

ABRAMS:  I‘ve got to wrap it up...

(CROSSTALK)

ABRAMS:  Mercedes, 10 seconds...

(CROSSTALK)

ABRAMS:  Do you disagree with him?

COLWIN:  No, this is the danger because he is going to get a hung jury in all likelihood in this trial if he does all or nothing.  And then when he gets retried in likelihood, they‘re going to fix up this trial and there is going to be a conviction.  So I think that he‘s not putting his client‘s best interest at heart by going for all or nothing.

ABRAMS:  Interesting.  All right.  Mercedes Colwin, Daniel Horowitz, Dean Johnson, a great panel.  Thanks a lot.

COLWIN:  Thank you.

ABRAMS:  Coming up, on Friday I did my best to recite Shakespeare‘s, you know some of his quotes as to why the world has a lot of lawyers.  Well, one of my brethren in the law says that I misused one of the quotes. 

I‘ll respond.  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, an easy way to make sure Americans get out and vote.  We make them serve on juries.  Should we them into the voting booths as well?  First the headlines.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why it‘s time to make voting mandatory.  That‘s right.  A law that says you‘re expected to vote.  It may surprise you to know that from Australia to Italy, Switzerland to Turkey, 33 countries, most of them with true democracies, require citizens to vote.  Now before you get on the horn of the ACLU screaming about how some insane lawyer on TV was talking about making you do this, hear me out.

I‘m proposing effectively a symbolic law.  More akin to a morality based law than would that will be vigorously enforced as a criminal statute.  Unlike some countries like Belgium and Luxembourg where the enforcement is tough and the fines can be steep, under my proposed system the fines will be small and the enforcement weak.  And if you don‘t want to vote, you don‘t have to.  Just provide an explanation, any explanation.

You hate the candidates.  Your toenail polish hadn‘t dried yet on the morning of the election, it was too cold out, whatever.  It‘s almost like a no-fault divorce.  The goal is not to examine your reasoning, but to remind eligible citizens that it‘s more than a right to vote.  It‘s an obligation.  A message to all who say they don‘t have time or they forgot.  It‘s not unconstitutional or undemocratic to say you have to do certain things for your country.

I had to register in case there‘s ever a draft.  I‘ve served on a jury.  When it comes to jury duty, if you refuse to serve, you can be forced to serve time yourself.  This greatest nation in the world has one of the worst records for voter turnout.  So why is it so jarring to say that citizens be required to vote in presidential elections once every four years?

Sure, voter turnout is expected to be high in this contentious election.  But still, tens of millions will decide they had better things to do.  I think it is time to provide them with a serious reminder.

I‘ve had my say, now it‘s time for “Your Rebuttal” .  On Friday I was thinking a lot about why people hate lawyers so much.  Found a book while cleaning my office titled “Shakespeare‘s Insults For Lawyers”.  I read some of the quotes in my finest Shakespearean accent.

Kevin in New York.  “Your Shakespearean recitations at the end of tonight‘s show were masterful.  You had the meter down.  Your accent was a joy.  Have you acted in the past?  Although, we don‘t want to lose access to your daily comments on THE ABRAMS REPORT, it would be rather wonderful to see you branching out.  For example, performing in a Shakespeare production.”

Yes, Kevin, you‘ll be able to catch me all week at the Circle in the Square Theater.  I‘ll be taking on “Coriolanus.”  Just kidding.

Jess Woodward from North Carolina can attest.  “Your reading of the Shakespeare quotes makes me feel secure that you will remain host of THE ABRAMS REPORT and will not be appearing in Shakespearean plays in the near future.”

And of course there‘s always a well, lawyer who wants to get literate.  I read the line from Henry VI, “Let‘s kill all the lawyers.”  In Albuquerque, New Mexico, Herb Silverberg Esq.  “The let‘s kill all the lawyers line is spoken by a character who is conspiring to undermine society and establish corruption and anarchy or worse.  The character understands and announces that it will be impossible to destroy the social order and the general good and welfare if lawyers are allowed to remain on the scene to guard against it.  The line is therefore not a knock on lawyers, but in fact is praise for us.  Ignorance of facts and context has lured you into criticizing your profession for the wrong reasons.”

Oh Herb, I mean Mr. Silverberg Esq., I assure you I need not summon the scribes of yesteryear to toss poisonous words at our profession.  With each sunrise our brethren provide us with a cornucopia of ammunition.  Of course, literally you‘re correct about the context.  The butcher who recited the line was attempting to prevent any informed opposition to the rebellion—yes, yes, yes.  But you‘re your note further convinces me that lawyers are, well, you know, a little, you know, I don‘t know, weenies?

Also on Friday, amidst reports that talk show host Bill O‘Reilly and his accuser Andrea Mackris might settle the sexual harassment suit against him.  Janet from Nevada writes in, “I understand O‘Reilly is adding a “No Spin Zone” vibrator to his “Factor” gear line.  Will you possibly be ordering one?”

Janet, come on.  Your e-mails abramsreport—one word-- @msnbc.com. 

We go through them at the end of the show.

Coming up next, “HARDBALL” with Chris Matthews.  Chris is in Philadelphia tonight playing “HARDBALL” with Senator John Kerry.  Thanks for watching.

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

END   

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