updated 10/27/2004 10:12:14 AM ET 2004-10-27T14:12:14

Guest: Mickey Sherman, Dean Johnson, Yale Galanter, Ronald Christie, Kendall Coffey, Herbert Brown, Alice D. Sullivan

DAN ABRAMS, HOST:  Coming up, the defense rests in the Scott Peterson trial.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Guess what?  Scott Peterson did not take the witness stand in his own defense.  I say only defense spinners thought it was a close call.  And while the defense poked holes in some of the prosecution‘s theories, there are a lost issues they did not address.

And with exactly one week to go until Election Day, more crucial legal rulings come from courts in battleground states.  We‘ll tell you what they mean to you in the voting booth.

Plus, the race is heating up but not just for president, but for some State Supreme Court justices who were elected.  Some groups spending millions trying to get their pick on the bench.  The question—should these types of judges be elected?  We debate.

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket, the defense rests in the Scott Peterson trial.  After only 14 witnesses, many saying the headline is about what they didn‘t present more than what they did present.

“My Take”—shocker.  The defense rested without calling Scott Peterson to the stand.  I said it before, I‘ll say it again.  They never really considered it.  It was a non-issue and anyone who suggests otherwise is just spinning for the defense.  I really like and respect Mark Geragos partly because he can be so convincing, but I heard one of my colleagues twisting in the spin saying that until yesterday the defense was unsure they would put Peterson on the stand.  I believe Mark Geragos was saying it.  I‘ll bet he says it when he‘s interviewed after the case is over.  Was it actually on the table?  No way.

As for the defense case, they did a good job of undermining the credibility of the police witnesses on cross-examination.  But in their case, all they did was poke holes in the weakest parts of the prosecution‘s case.  They never addressed the most significant points made by the state.  The bodies were found 90 miles from Peterson‘s home in the exact area where he was fishing the day his pregnant wife disappeared, his seemingly bizarre behavior after his wife disappeared.  He told some he went fishing, others golfing the day Laci disappeared.  He lied to his family about where he was in the days she went missing.  He told Amber Frey he—quote—“lost his wife before she disappeared” and then called her from his wife‘s vigil.  No explanations for any of that.

Joining me now, criminal defense attorney Yale Galanter and two men who were in the court today, criminal defense attorney Mickey Sherman and former San Mateo County prosecutor Dean Johnson.  All right, so Mickey, give me an overview.  What do you think of the defense case?

MICKEY SHERMAN, CRIMINAL DEFENSE ATTORNEY:  Well, you know, we always expect that it‘s going to be a Perry Mason moment, Dan, and that‘s just not the case.  All he did is put on the bare amount of evidence that he felt he needed.  Obviously, he—it would have been nice he had more dramatic evidence, but that‘s just not always in the cards.  I think as we all agreed he did a great job during the state‘s case.

Who knows, maybe he would have been better not putting any witnesses on, but that‘s such a chancy thing to do and it takes a lot of chutzpah to do it.  You know, everyone is just kind of faulting him because it didn‘t seem so exciting.  It‘s not always exciting...

ABRAMS:  You know...

SHERMAN:  It‘s like watching sausage made sometimes.

ABRAMS:  But Dean, a lot wasn‘t explained in the defense case and—you know, I know, the defense doesn‘t have the burden.  OK.  But the prosecution with that burden has some evidence on its side that just has not been addressed by the defense at all.

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Well, you‘re quite right, Dan.  Legally the defense never assumes the burden.  But Mark Geragos made, I think, a fundamental mistake five months ago when he overstated his case.  He told this jury he was going to prove that the baby was born alive.  He was going to turn this into an eyewitness case and he was going to prove Scott Peterson—quote—“stone cold innocent”.  Not one piece of evidence that the baby was born alive, in fact the evidence is just the opposite.  Not one live eyewitness called.  And he certainly hasn‘t offered anything to suggest that Scott Peterson is stone cold innocent except to float a dozen or so theories during the prosecution‘s case, none of which led anywhere.

ABRAMS:  Before I read you an exclusive conversation that we have gotten that occurred—was recorded by the authorities, Scott Peterson and his parents speaking about an offer the D.A. made—hang on.  Hang on.  Hang on.  Don‘t put it up yet.  I want to go to Yale Galanter to just get an overview of what you thought of the defense case.

YALE GALANTER, CRIMINAL DEFENSE ATTORNEY:  I think Mickey and Dean are right.  I mean, you know, Geragos had a very difficult decision to make.  The momentum was clearly on the defense side at the end of the prosecution, Dan.  We‘ve been discussing that for a couple of weeks.  And what he did was he chose to put on a couple of witnesses.  The dog sniff witness, I thought was real good.  I thought the concrete witness was good.

He totally fumbled the ball with the OB/GYN and I think he fumbled the ball putting the parents on.  I think that‘s always a pathetic attempt when you go to family members to try and explain things and he really lost momentum.  And it was so strong.  He gave it up.  And I think that may sway the tide for this jury.

ABRAMS:  All right.  Let me read you January 28, 2003, this is a report of Detective Steven Jacobson and he‘s talking he is—this is a recorded conversation between Scott Peterson, his father Lee, his mother Jackie.  They‘re talking also in reference to the lawyer named Kurt McAllister.

Scott:  Oh, he the D.A. made me an offer.  If I tell them where the body is, they won‘t put me to death.

Lee:  Oh gees.

Scott:  He said they‘re just struggling to find anything.  You know, that‘s why they (police) call me and all that weird stuff they‘ve done like go down and meet with you (Dad).  You know, they call me and say we‘re searching the bay again Scott.  They‘re just trying to, you know, crack people.  He, his lawyer, said if they had stuff they say they have I would be hooked up right now.

Lee:  Yes, absolutely.

Scott:  Kirk tells me they‘re playing a deadly game here you know, but he‘s pretty confident.

Jackie:  Kirk says you‘re playing a deadly game?

Scott:  Yep.

(UNINTELLIGIBLE) That‘s some serious talk amongst family members.  But I guess, Dean, it‘s not that surprising that the D.A.s  -- we knew that the D.A.s had offered Scott a deal early on in this case.

JOHNSON:  Yes.  This has been very well known and it‘s a common prosecution tactic in cases like this where the evidence is circumstantial, where it‘s being gathered slowly to talk to somebody and say, look, the exposure here is huge.  We‘ll take the death penalty off the table.  But we want a statement from you.  We want some cooperation from you.

He didn‘t give that cooperation.  He‘s rolled the dice in this trial. 

We‘ll see how it comes out.

ABRAMS:  All right.  Before we go to break, I want to play a little piece of sound from Scott and Amber.  If we can pull up number two—because I think this is one of the most significant pieces of evidence that was not addressed by the defense in its case.  And this is exactly what Scott Peterson said to Amber Frey.  And this is again, after Laci disappeared.  Here it is.

(BEGIN AUDIOTAPE)

AMBER FREY, SCOTT PETERSON‘S FORMER GIRLFRIEND:  And you said you lost your wife and what—I mean what sense do you think people think when you say that in lost?  I mean I took it and she took it as she had passes away.

SCOTT PETERSON, ON TRIAL FOR MURDER:  Recently dead.  Yes, I know you did.

FREY:  How else is one to think any different than that Scott?

PETERSON:  Well I mean...

FREY:  And you didn‘t indicate you‘re currently married and living with her.

PETERSON:  True.

(END AUDIOTAPE)

ABRAMS:  Mickey, smart move to basically just ignore all the Amber Frey stuff for the defense?

SHERMAN:  I think both sides basically are going to be ignored...

ABRAMS:  No the prosecution is not going to ignore it...

(CROSSTALK)

ABRAMS:  ... come on.

SHERMAN:  No, I‘m telling you, they put her on originally because she was the great motive evidence and I think that fell flat.

ABRAMS:  How did it fall flat?

(CROSSTALK)

ABRAMS:  Wait.  Wait.  How did it fall flat when they have a timeline...

SHERMAN:  Do you think...

ABRAMS:  No...

(CROSSTALK)

ABRAMS:  When they have a timeline of December 6, 7, 8, and 9, where Scott Peterson finds out that he‘s going to be confronted about being married.  He starts looking for boats.  He starts looking at the tides in the San Francisco Bay.  He then buys a boat.  All in the same period when he‘s also telling Amber that he lost his wife, all of that in a four-day period.  I mean I‘m not saying it‘s a winning motive, but it‘s certainly not a falling flat motive.

SHERMAN:  I do not believe that any juror is going to come to the conclusion that he committed this crime so he could spend the rest of his life with Amber Frey.  I‘m not trying to diss her.  I just don‘t think it‘s a valid motive.  And you‘re going to watch when this jury is finally dismissed, whether it‘s a guilty, not guilty, hung jury...

(CROSSTALK)

SHERMAN:  ... when they start making the rounds of all the morning shows, people like you Dan are going to say and did the Amber Frey evidence sway you?  And they‘re going to say no...

ABRAMS:  Well yes...

(CROSSTALK)

SHERMAN:  ... plain and simple.

ABRAMS:  Mickey, as you well know, jurors don‘t often come clean about exactly what it was that swayed them after the fact.  I mean, you know, and this is coming from the same guy who predicted that Scott Peterson was going to take the witness stand.  So you know don‘t trust that...

SHERMAN:  I had my fingers crossed Dan...

ABRAMS:  Yes.  All right.  Let me take a quick break here.  Yale Galanter, Mickey, Dean Johnson are going to stick around.  Coming up, we‘re going to talk about that issue of Scott Peterson not taking the witness—

I said it before.  It was never going to happen.  I want to make sure that everyone still agrees with me that it was never even on the table.  I just laugh when I hear people on other networks saying oh until yesterday it was coming down to the wire.  Yes.

Just seven days until Election Day and every day there are more legal rulings that could affect the battleground states.  We‘ll tell you about a couple of today‘s big legal rulings that could affect your vote.

Plus, judicial races in several states heating up.  TV ads running in some states that sound a whole lot like any other political race.  Should judges, sometimes State Supreme Court justices be campaigning like every other candidate?  We debate.

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, Scott Peterson‘s defense wraps its case today.  He did not take the stand, but is anyone really even just even this much surprised?  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  The defense wraps up its case in the Scott Peterson trial.  Before we debate, discuss a little more, here‘s NBC‘s Jennifer London.

(BEGIN VIDEOTAPE)

JENNIFER LONDON, MSNBC CORRESPONDENT (voice-over):  The defense opened his case by asking for a dismissal, arguing there isn‘t enough evidence to give the case to the jury.  Judge Delucchi denied the motion, which apparently didn‘t surprise the defense team.  They had their first witness in court ready to testify.  A concrete expert told the jury that concrete used to make one homemade anchor found in Peterson‘s warehouse did match concrete samples taken from the defendant‘s yard.  This supports Peterson‘s claim.

BRENT ROCHA, LACI PETERSON‘S BROTHER:  They talk about cement in your shop that was used for, I don‘t know, anchors or something.

PETERSON:  Yes, I made a boat anchor with some cement and then I put some in the driveway here.

LONDON:  The defense also focused on dog tracking evidence, dog handler Ron Seitz testified that his dog did not pick up Laci‘s scent at the Berkley Marina.  This contradicts a prosecution witness who says her dog did.

BETH KARAS, COURT TV CORRESPONDENT:  This dog evidence is now a little murky and may have been just totally neutralized and taken out of the case.

LONDON:  Last week the defense also called an OB/GYN, Mark Geragos tried to prove that baby Conner died after December 24, 2002 and that he was older than 33 weeks.

PAULA CANNY, CRIMINAL DEFENSE ATTORNEY:  Dr. March concluded that Conner could not have died before December 29.  that was powerful.  But the deputy district attorney, Harris, did a great job in cross-examining the doctor.  So THAT by the time that the cross had finished, no—the witness was so befuddled his conclusion basically lost its power.

LONDON:  On Monday, Peterson‘s voice once again echoed in the courtroom.  The jury heard a wiretapped conversation between the defendant and his brother Joe, recorded on April 18, 2003.  The day Peterson was arrested and just five days after the first body washed ashore.

JOE PETERSON, SCOTT PETERSON‘S BROTHER:  Any indication when they might identify these bodies?

S. PETERSON:  No.

J. PETERSON:  No.

S. PETERSON:  So much hype out there it‘s just insane.

LONDON:  Peterson‘s parents were also called to the stand.  Jackie attempted to explain why her son had thousands of dollars in cash when he was arrested in San Diego.  She told the jury she had given Peterson $10,000 the day before to repay him for money mistakenly taken out of his account.  Lee Peterson said he told his son to borrow his brother‘s driver‘s license to get cheaper green fees at the golf course, an attempt to explain why Peterson was arrested with his brother‘s I.D.  When the defense rested, that same brother John had this to say.

JOHN PETERSON, SCOTT PETERSON‘S BROTHER:  And the truth shall set Scott free.

LONDON (on camera):  More than a dozen witnesses were called during the defense‘s case.  The accused killer wasn‘t one of them.  Closing arguments are set to begin this coming Monday.  And a week from tomorrow the jury will begin deliberations.  They will be sequestered during that time.  And it‘s possible the five alternates will be joining them.

In Redwood City, California, Jennifer London, NBC News.

(END VIDEOTAPE)

ABRAMS:  All right.  Thanks Jennifer.  Yale Galanter, you heard that -

·         one of the experts there saying that they thought that expert the defense did such a great job when it came to the baby‘s age.  Let‘s be clear.  If that baby was born any time after—it was born, period—if it was born, you know, December 25 or later, Scott Peterson was being watched and therefore the defense would say he could not have done it.  I was expecting that to be the strongest argument that the defense would have in this case.  And I don‘t know, their witness seemed to have kind of fell—in the words of Mickey Sherman, fell flat.

GALANTER:  Oh, the witness definitely fizzled.  It was a big thud.  And either the witness wasn‘t prepared properly or the witness didn‘t know what they were talking about.  The truth, Dan, is that the two prosecution witnesses who testified that when they autopsied baby Conner, that the baby was full term, were actually stronger defense witnesses that was brought out on cross-examination than the expert that Mark called on his own case.  And I guarantee you in opening argument he‘s going to argue that point to the hilt that the M.E. report says that Conner was full term and kind of discount the testimony of his expert.  You‘re 100 percent right...

ABRAMS:  Here‘s what Mark Geragos said on January 14, talking about this very issue during a pretrial hearing.

(BEGIN VIDEO CLIP)

MARK GERAGOS, SCOTT PETERSON‘S ATTORNEY:  The one thing he just won‘t deal with, they just will not get their arms or their head around is the fact that that baby grew for anywheres from three to seven weeks.  They can‘t get around that.  And the fact of the matter is until they deal with that, they‘re never going to find out who did this.

(END VIDEO CLIP)

ABRAMS:  Dean, if this jury for some reason comes back with a not guilty verdict, I‘m convinced it‘s going to be because of this issue.  And, yet, you know, do you agree with Yale that when it, you know, when it came to the evidence here the defense—I was expecting a lot more.  I was expecting experts from the defense who were going to talk about the tape wrapped around the baby‘s neck and talk about you know gestational age and, instead, they have this one guy who comes in.  He‘s basing his—all his testimony on the age of the baby based on what people said to other people about when Laci said that she was pregnant.  You know, it wasn‘t particularly strong.

JOHNSON:  No, you‘re  -- well that‘s an understatement.  Not only was it not strong, this witness fell flat on his face and the nature of his testimony talking about, well, you know, how women talk all the time.  Laci would have revealed this at a baby shower.  It was offensive to the jury.  The female jurors, in particular, were laughing at him.

You‘re right, this was a defendant‘s worst nightmare.  This expert witness could have established the one fact that would have allowed Mark Geragos to get up and say we fulfilled our promise.  We proved Scott Peterson innocent because the baby went past Christmas Eve.  He couldn‘t have done it.  Yale is right, though, you could flip the prosecution witnesses...

ABRAMS:  Yes.

JOHNSON:  ... and make that argument based on the evidence.

ABRAMS:  All right...

JOHNSON:  So I expect Mark Geragos will try to do that.

ABRAMS:  I want to give Mickey the final word.  Let‘s put up full screen 17 here, which lays out the prosecution and defense experts on this issue.  Mickey, what about this issue?

SHERMAN:  Well, I was there when Dr. Brian Peterson testified for the state.  And they did leave a little bit of a door open saying well it‘s a possibility the baby could have been born.  They should have been happy with that.  Although I‘m sure in the office this guy seemed like a great witness...

ABRAMS:  Yes...

(LAUGHTER)

SHERMAN:  ... had a great witness...

ABRAMS:  Yes.

SHERMAN:  And the report must have been terrific.  And they probably spent half a fortune.  But you know, Dan, it‘s a lot easier asking the questions than answering them on the witness stand.  I‘ve been there.

ABRAMS:  All right.  Take a quick break here.  When we come back, finally, talk about that issue of Scott Peterson—did anyone—I want to ask the lawyers whether they believe—when Mark Geragos is telling people that he was thinking until tomorrow—sorry --  until yesterday about calling Scott Peterson to the stand whether that‘s true.

And courts are trying to—their best to prevent another Bush v. Gore scenario.  They issue rulings before it all starts.  We‘ll tell you about the major rulings that came down today.

(COMMERCIAL BREAK)

(BEGIN AUDIOTAPE)

S. PETERSON:  Amber, are you asking if I had something to do with this?

FREY:  You never told me you haven‘t.

S. PETERSON:  Yes I have.  I had nothing to do with this.  You know that.

GROGAN:  It‘s a matter of time.

S. PETERSON:  Craig, you I had nothing to do with Laci‘s disappearance.

(END AUDIOTAPE)

(BEGIN VIDEO CLIP) DIANE SAWYER, CO-ANCHOR, “GOOD MORNING AMERICA”:  

I think everybody sitting at home wants the answer to the same question, did you murder your wife?

S. PETERSON:  No.  No.  I did not.  And I absolutely had nothing to do with her disappearance.

(END VIDEO CLIP)

ABRAMS:  You know, there were a lot of incriminating tapes.  But again and again, the jurors heard that from Scott Peterson.  Mickey Sherman, that‘s one of the reasons that this defense team never considered calling Scott Peterson to the witness stand, agreed?

SHERMAN:  I know you don‘t believe me Dan.  I know my nose is growing. 

It‘s going to hit the cameras, but I think they did consider it.

ABRAMS:  Oh come on.

SHERMAN:  And they obviously ruled it out because he did do lousy with Diane Sawyer.  In fact, he did so lousy that I think it was the next morning there was a phone call, well, I lied to her, should I...

ABRAMS:  Yes.

SHERMAN:  ... you know, take that back.  You know, so—you know, that‘s a good practice for being on the witness stand.

ABRAMS:  Yes.  Yale, I believe that Mark Geragos is saying that he was seriously considering it.  I believe that Michael Cardoza conducted a mock cross-examination of Scott Peterson, but I don‘t believe for a second that they were actually considering calling Scott Peterson to the stand.

GALANTER:  No how, no way.  Not only that, Dan, and we both love Mickey, Mickey was sitting in that courtroom and Geragos got up and said I call Scott Peterson, he would have ran up and tackled him.  Because Mickey knows there‘s no way that you could put this guy on the stand.

ABRAMS:  Yes.

GALANTER:  And the real thing, Dan, and we discussed it last week is there was no reason to.  Because his statements to Amber Frey...

ABRAMS:  Right.

GALANTER:  ... that I didn‘t do it...

ABRAMS:  Right.

GALANTER:  ... nobody gets to cross examine him.  It‘s front of a jury.  It‘s out there.  That‘s why Amber Frey was such a red herring...

(CROSSTALK)

ABRAMS:  And Dean, then he doesn‘t...

(CROSSTALK)

ABRAMS:  He also doesn‘t have to explain...

(CROSSTALK)

ABRAMS:  Hang on.  Dean...

(CROSSTALK)

UNIDENTIFIED MALE:  ... have to explain anything.

ABRAMS:  Dean, he doesn‘t need to then also explain his inconsistent statements on the witness stand.

JOHNSON:  Yes.  I mean there are so many things that could you do as a prosecutor on cross-examination.  I‘m sure there are any number of ex-prosecutors who would have paid for the opportunity to get up and say, you know, Scott, you told Amber that when all of this was over and when Laci‘s body was found that you‘d answer all those questions.  Well, now‘s your time.  We want to hear the explanation...

ABRAMS:  Yes.

JOHNSON:  ... for all those...

ABRAMS:  I think he has a lot harder time explaining some of the other stuff.

(CROSSTALK)

ABRAMS:  I‘ve got to wrap it up.  Yale, Mickey, Dean, thanks a lot. 

Mickey, you‘re looking good out there.

(CROSSTALK)

ABRAMS:  All right.  Coming up, Ohio, Colorado, Florida, just three of the battleground states with major legal issues already.  What have the courts resolve before the election and what difference will it make?

And...

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Despite prosecutor‘s objections, Judge Willie Cormier (ph) gave him probation, saying the court should grant leniency.

(END VIDEO CLIP)

ABRAMS:  Ads like these playing in battleground states for state Supreme Court justices.  Some groups spending millions trying to elect their candidate.  But with that, does the judge‘s impartiality go out the window?  We‘ll debate.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, just a week before the election, more crucial legal rulings from the courts in the battleground states.  We‘ll tell what you they mean when it comes to the voting booth, but first the headlines.

(NEWS BREAK)

ABRAMS:  We‘re back.  Exactly one week to go until the presidential election.  Both candidates effectively running neck and neck.  Bush leading Kerry 49-46 in the latest “Reuters”/Zogby poll.  And as we head to the finish line, there have been a few important rulings in the last few days in several crucial battleground states.  Rulings that could ultimately affect the outcome of the elections.

In Florida, one of the highest profile pre-election challenges, a federal judge ruled yesterday that touch screen voting machines do not need to create a paper trail.  They can move forward with the system that is now in place.  And today the U.S. District Court in Miami ruled that state election officials will not be required to process incomplete voter registration forms.  Meaning, people who failed to fill in a portion of the form, a decision that could affect about 10,000 votes.

Meanwhile, another federal appeals court weighed in on provisional ballots.  You know, the ballots  provided to people whose names don‘t show up on the roles, but who say I‘m registered.  They can have a ballot and then they see later.  In Ohio, the appeals court ruled these ballots should not be counted if the vote was cast outside the voter‘s precinct.

And the same court reversed a lower court ruling in Michigan that had said those added precinct provisional ballots should be counted.  Essentially, now only votes cast in the same district in those two states as the counter—as the voter will be counted.

And finally today in Colorado, a federal judge refused to block voters from deciding on Amendment 36, a very controversial measure that would change Colorado‘s Electoral College votes making it proportional.  So it could be 5-4 depending on the vote rather than winner taking all nine.

All right, “My Take”—voting has never been a perfect science in this country and it probably never will be.  As for provisional ballots, I think you should have to vote in the precinct where you‘re registered.  Provisional ballots basically exist to protect the voters from errors made by state officials, not voters from their own mistakes.  As for requiring a paper trail, it‘s a great idea for 2008, maybe it should be mandated, but it‘s too late for the court to order that all voting machines must have paper receipts now.

And as I‘ve said before, Colorado voters, I have real trouble with the idea that they can change the way they choose their national electors on the day of the presidential election.  I think there are concerns about having one state and one state only with a purely, purely proportional system.

Joining me now to discuss these issues, Ronald Christie in Washington, a former adviser to Vice President Cheney.  And in Miami, Kendall Coffey, an attorney for Vice President Al Gore during the 2000 election recount.  Gentlemen, welcome to the program.

(CROSSTALK)

UNIDENTIFIED MALE:  Hey Dan.  Good to be with you.

ABRAMS:  All right.  Mr. Christie, let me start with you and let me start on this issue.  I think these provisional ballots issue is going to be a huge issue in this election.  It seems, am I correct, that as of right now all the courts have come down so far in terms of where we stand now in saying if you don‘t vote in your precinct, your vote is not going to count?

RONALD CHRISTIE, FORMER ADVISER TO VP CHENEY:  You‘re absolutely right about that Dan.  Not only the Ohio case that was of some dispute with the Secretary of State Ken Blackwell saying that voters should be required to cast their ballot in their precinct and not in a different part of the county.  That something similar also in the Sixth Circuit out in Ohio and a case in Michigan, a very similar manner as well.  So looking at the Ohio case and looking at the Michigan case thus far...

ABRAMS:  And now Florida.

CHRISTIE:  ... and now Florida, it appears that if you are not casting your ballot properly within your precinct, in your jurisdiction, then that will not be counted.  But the point I want to make very briefly is you‘re absolutely right.  The provisional ballot system was designed to protect the voter not from themselves, which it appears that some folks are trying to do, but protect the voter from being held off improperly from the ballot.

ABRAMS:  All right.  Do you disagree with that, Kendall?

KENDALL COFFEY, ATTORNEY FOR VP GORE IN 2000:  Well here‘s the benefit of some of these rulings.  And certainly some of the people bringing the cases would have liked to have seen a different outcome.  But, Dan, now we have the ground rules in advance.  And it‘s so much better to get this worked out before the election.  What that means is whoever has got the best ground organization is going to benefit from knowing the ground rules before November 2...

ABRAMS:  But they‘re still appealing—all these cases are still working their way through the appellate courts.

COFFEY:  Well I don‘t think, for example, I think we heard from Ohio that they‘re going to go with a basic premise that you have got to get that provisional ballot done in the precinct.  I think you‘re going to see that in most places.  At this point, people are going to focus on turning the vote out and getting those votes to count.

ABRAMS:  Let‘s talk about another ruling today.  The Florida election paper trail issue.  Basically Congressman Wexler saying, hey, they—the United States Supreme Court in Bush v. Gore mandated a uniform recount system.  How are you going to have a recount if there is no paper trail.  Number seven here.

Here‘s what Judge James Cohn, U.S. District Court ruled.  The court concludes that defendants have established a uniform non-differential standard for conducting a manual recount in the 15 counties using touch screen machines and as such, there is no constitutional violation found.

You know Mr. Christie, what he‘s saying there is no differentiation between the 15 that have the electronic voting systems, but it does mean that they won‘t be able to engage in the same sort of recount that other counties would be able to.

CHRISTIE:  That‘s right.  But I think the important thing to keep in mind, Dan, is that those 15 counties in that ruling that came out from the judge in Florida earlier, those 15 counties, there are safeguards built within those voting machines that say that—if the ballot is cast, there are safeguards that allow people to go back if those votes are in dispute.

What Congressman Wexler was trying to do, I think, was inject some bit of uncertainty into the system.  And I think the important thing that we need to have is a fair and free election that is not in dispute after November 2.

ABRAMS:  See, as a legal matter, Mr. Coffey, I think this legal ruling is maybe questionable, Bush v. Gore.  But the bottom line is what are you going to do?  Are you going say that all 15 counties election systems a week before the election are no good and, therefore, they have to come up with some other system?

COFFEY:  It may be questionable, Dan.  I think that it is questionable.  The reality is that even if the judge had ruled in favor of Congressman Wexler, there was no way to implement it on time.  I think the benefit of that litigation it‘s highlighted and an important concern.  Part of the problem in Florida has been human error.

You may remember what happened in 2002.  And I think as a result of this litigation, some of the supervisors have gotten onboard with providing the training, providing the staffing, and dealing with a better effort in terms of addressing the problems on the human error side.

ABRAMS:  Very quickly, Mr. Christie, Colorado, court ruling that the voters can decide whether to make it a winner take all or proportion—well actually saying it‘s not for him to decide, a federal judge saying, this is not, you know, my deal to take it to the state courts.  Do you agree with that ruling?

CHRISTIE:  No, I don‘t.  Dan, you and I have talked about this before.  It‘s one thing to bring up an issue, Article Two, Section One of the Constitution says that the legislature shall award the electors, not the people directly.  And I think what people are trying to do, they were upset about the 2000 decision with the president winning that case.  They wanted to insure a system that would allow the Democrats should Senator Kerry not prevail in Colorado, a chance to get a proportion of those votes.

ABRAMS:  What about the fact that in Nebraska and Maine, for example, they have a partly proportional system.  I mean according to your reasoning then, those states would be unconstitutional as well.

CHRISTIE:  No, I think with my reasoning it‘s one thing to bring a challenge to this before a presidential election.

ABRAMS:  Yes.

CHRISTIE:  It‘s another thing to bring this right synonymous...

ABRAMS:  I agree...

CHRISTIE:  ... a presidential election.

ABRAMS:  I agree.  I‘ve got to wrap it up.  I apologize.  Ronald Christie, Kendall Coffey, two great guests.  We‘re going to have you on.  We‘re going to have a lot to talk about in the next week.  I really appreciate it.

UNIDENTIFIED MALE:  Thanks Dan.

ABRAMS:  Coming up, voters not just voting for president but in many states for judges, even state Supreme Court justices.  And this year some groups are spending millions to get their candidate a choice on the bench.  Should these kinds of judges be elected?  Does it impact their ability to be fair?  We‘ll talk.  Former judges on both sides.

And speaking of voting, I suggested trying a system where all adults would be required to vote or at least give some explanation of why they couldn‘t.  Boy, I heard it from all of you.  We‘ll get to your e-mails.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Tony Dean Arwall (ph) was sentenced to serve 15 to 35 years.  But just three years later, a shocking turn of events.  Liberal Judge Warren McGraw cast the deciding vote to set this reprehensible criminal free.

(END VIDEO CLIP)

ABRAMS:  Tough political attack ad aimed at West Virginia voters who will vote on whether Justice Warren McGraw will return to the State Supreme Court.  His supporters note that McGraw was just one of the three high court judges to vote in favor of that early release, 3-2.  And that the facts are a lot more complicated than that.

But the facts of the case aside, campaigning for seats on the State Supreme Court has become a part of the political landscape, though some might call it a state on the landscape in many states.  You can credit or blame a U.S. Supreme Court decision in 2002 that ruled it was unconstitutional to prevent judges from discussing their positions on issues.

Right now 38 states elect at least some judges.  And this year voters in 20 states will elect some 40 Supreme Court justices, the highest court in their states with television ads playing a major role.  So far in 2004, ads for judicial races are airing in 15 states compared to nine states two years ago and just four states in the 2000 election.

“My Take”—I have a problem with electing judges to State Supreme Courts, the trial courts are different.  But when it come to higher court judges or justices who are reviewing a constitutionality of laws, that shouldn‘t be a campaign issue.  These judges have to sometimes make tough calls and sometimes a judge has to protect the minority from the majority, meaning they may have to make unpopular rulings because they‘re legally sound.  It means that courts can‘t really serve as a check on legislatures.

Only if you want judges who rubber stamp legislation, even though that‘s not what our founding fathers had in mind should you support these elections.  Now I know some of will you say having politicians appoint judges to high courts isn‘t any better.  But these campaigns not only make high court judges slaves of special interests who fund them, but undermines their credibility and that of the judiciary.  We debate.

My guests, the Honorable Alice D. Sullivan served as a judge on a California Superior Court where she was vice chair of the Ethics Committee.  She says state Supreme Court judges should not be elected.  And the Honorable Herbert Brown served as a judge on Ohio Supreme Court.  He serves on the Ethics Committee.  He was appointed to the State Supreme Court, but thinks he probably should have been elected.

All right.  Thank you both very much for joining us.  We appreciate it.

UNIDENTIFIED FEMALE:  Great to be here, Dan.

ABRAMS:  Justice Brown, why am I wrong on this one?

HON. HERBERT BROWN (RET.), FORMER OHIO SUPREME COURT JUDGE:  Well, I think it‘s naive to assume that the appointment system is nonpolitical.  Nothing can be more political.  They‘re screened for every scrap of writing.  They‘re screened for health.  They‘re screened for age.  It‘s the most political system that we have.

ABRAMS:  But making it a lifetime appointment, for example, insures that they‘re not going to be double—they‘re not going to be questioned about their decision just because they‘re not popular.

BROWN:  In theory.  But in my practice in Ohio, the evils that you present didn‘t occur.  We didn‘t have decisions decided even though judges were elected along the lines of just favoring one support group or another.

ABRAMS:  But isn‘t it different?  I mean these ads are new.  This sort of attack ad is a relatively new concept and we‘re seeing it more and more across the country.  Doesn‘t that change things?

BROWN:  Absolutely.  But here‘s an interesting thing.  In Ohio, there was a huge amount of money put into an attack ad to defeat a Supreme Court justice two years ago and it failed.  And what it did was make the name of that judge better known and she won overwhelmingly.

ABRAMS:  But see Judge Sullivan, the problem I have is even apart from that, it also just I think undermines the sort of credibility of our whole judiciary.

HON. ALICE D. SULLIVAN (RET.), FMR. CA SUPERIOR COURT JUDGE:  Yes, I think you‘re absolutely right, Dan.  What would it be like if you went to court knowing that the judge you were going to appear in front of was one who had been elected by the money interests supporting the other side in your lawsuit?  How could that work?  You wouldn‘t be willing to go and have that judge decide your case.  You‘d challenge the judge.

ABRAMS:  And I assume you get lawyers, a lot of lawyers, and I know this is a fact, a lot of lawyers contributing to campaigns?

SULLIVAN:  Yes, lawyers are contributing to campaigns and judicial races.  But the special interest money is I think what—where the concern is.  If you‘re asking to have the business interest support a particular judge or the environmentalists support a particular judge, then who would have confidence in the impartiality of that judge to be able to decide a case in that subject area?  You wouldn‘t.

ABRAMS:  What about that, Justice Brown?

BROWN:  Well, I would ask the question—how much confidence do we have in the U.S. Supreme Court deciding the last election when the majority of judges that voted on that were appointed by the party that prevailed?

ABRAMS:  But wouldn‘t it have been worse...

BROWN:  Does anybody question that?

ABRAMS:  Wouldn‘t it have been worse if they had been elected?

BROWN:  I don‘t see how it could have been.

ABRAMS:  I mean Judge Sullivan, I think—I mean I take Justice Brown‘s point, you know, with a—you know with a laugh.  But the bottom laugh is it would have been a lot worse...

(CROSSTALK)

ABRAMS:  ... if they had been elected.

SULLIVAN:  Yes, I‘m not saying that judges shouldn‘t or couldn‘t be elected.  They can be appointed as they are in many states and they can—in California, for example, it is an electoral system.  Most judges are first appointed to an unexpired term.  But then they stand for election in subsequent election cycles.  And the voters have a chance to throw them out of office if they‘re not happy with them.

ABRAMS:  Yes, that is sort of a blended system Justice Brown.  What about that?

BROWN:  Well actually...

ABRAMS:  First you get appointed—yes, go ahead.

BROWN:  ... the system I proposed when I was running for the office was a bipartisan commission to appoint a candidate from either party.  You‘d have qualified candidates.  Put severe stricture on spending and let the voters choose.

ABRAMS:  Yes.  No, I think that sounds—my—look, I think that we can all sort of talk about what we hope and I think I hope one thing.  Justice Brown hopes something similar.  But the bottom line is, Judge Sullivan, what I am seeing now in these ads, to me, is a mess.  I mean we are going to have a problem that needs to be fixed in states across this country when it comes to ethics.  I will guarantee you there are going to be all sorts of ethical complaints being made about the ads in this election.

SULLIVAN:  Yes.  And how can you—even if you have the money spent and a judge has to say, for example, go out and raise $3 million to run in a contested election, where are they going to raise that money...

ABRAMS:  Yes.

SULLIVAN:  ... except the same place the legislators do?

(CROSSTALK)

SULLIVAN:  And that‘s the flaw in the system.  So I think a limit on spending in a judicial race could help.

(CROSSTALK)

BROWN:  You know I do agree with that.  I think the problem is more money...

ABRAMS:  Yes.

BROWN:  ... rather than the procedure of picking the judges.

ABRAMS:  And I should point out that my position is not—I don‘t have a problem with trial court judges being elected at all.  For me the only issue is when it comes...

BROWN:  Yes.

ABRAMS:  ... to the appellate courts, the highest courts in the state, for example.  Judge Alice Sullivan and Justice Herbert Brown, thanks very much.  Appreciate you coming on the program.

BROWN:  You‘re welcome.

SULLIVAN:  Nice to be with you.

ABRAMS:  And a reminder from now until Election Day, we‘re going to keep on top of the legal issues that could impact the election.  This is the program to turn to.  You can get more information on NBC‘s “Making Your Vote Count” project on our Web site, abramsreport.msnbc.com.  Sign up for our newsletter while you‘re there.  You get to know ahead of time the stories we‘re covering each day and you can be the first one to tell your friends.

Plus, on Election Day, we‘ll be here all night to stay on top of any of the legal issues that come up with the voting.  And if you‘re having trouble voting that day or before, you can get help by dialing the NBC News voter alert line.  The number, 1-866-MY-VOTE1, 1-866-MY-VOTE1.

Coming up, the 9/11 Commission unanimously recommended to overhaul the country‘s intelligence system.  The White House endorsed it.  The Senate has come up with one version of it that they like.  So why is the House playing partisan games with the bill and leaving the country, according to the 9/11 commissioners more vulnerable to terror attacks?  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, we all have to pay taxes, jury service.  Us men have to register for a possible draft.  So I said that maybe we should all have to vote too.  Boy, that got a lot of you very upset.  I‘ve got some answers to your e-mails coming up.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why the battle in Congress over the 9/11 Commission‘s recommended changes represent politics at its worst.  The 9/11 Commission, five prominent Democrats, five prominent Republicans, spent months interviewing all the relevant players from President Bush to President Clinton.  The goal?  Assess what happened on 9/11 and why and most importantly, recommend changes to prevent it from happening again.  They battled over words that the Republicans trying to defend the president and Democrats doing the same for former President Clinton.

But in the end, they came up with a 585-page unanimous report.  I promised if they were unanimous, I would defend it.  Now a bipartisan Senate bill incorporated many of the commission‘s suggestions, including a new position of intelligence director who would control almost all the budgets for the institutions that report to him or her.  That would include Defense Department intelligence gathering agencies.  The House wants to keep the status quo alive with the defense secretary retaining budgetary control.  The House has also slipped in controversial measures about immigration and law enforcement.  It sure feels like the House leaders just don‘t want to make the necessary changes that the 9/11 commission sort of suggested.

They compromised.  The Senate compromised.  The White House, which initially did not want the commission at all, compromised.  But now the partisans in the House are trying to wipe away all that hard work by slipping in controversial provisions that will kill the bill and weaken any proposed changes.  Leaders of the commission are now warning that lawmakers should be held partially responsible if another terror attack occurs before Congress restructures our nation‘s intelligence gathering operation.

They‘re right.  It‘s easy to say we need to make changes.  It‘s a lot harder to do it.  The 9/11 Commission was able to deal with the partisan split on their commission.  Now it‘s the House‘s turn to finally put politics aside and make the tough choices.

I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night in my “Closing Argument” I said maybe it‘s time to make voting mandatory.  A law that says you‘re expected to vote.  Effectively a symbolic law where the fines would be small, enforcement would be weak.  If you don‘t want to vote, you don‘t have to.  Just provide an explanation.  Anything would do.  The goal, to remind eligible citizens that it‘s more than a right to vote. 

It‘s an obligation.

Many of you up in arms about this proposal.  Trevis M. Orr, “What are you smoking?  Why would you want to persuade misinformed, non caring, non proactive people to cast a ballot?  Don‘t we have enough problems already?”

Again, Trevis, why is it so different from jury service?  That‘s a requirement.  And again, you wouldn‘t have to vote.  It would be sort of a legal reminder.

Mark Luedtke, “Not voting is a vote in itself.  It‘s a vote against the political system.”

No Mark it‘s not.  In fact, my system where you provide an explanation for why you didn‘t vote would allow people to make more of a statement against the political system by saying I didn‘t vote because I thought the candidates stunk.

From the Long Island University School of Business, Jim Lyttle.  “Abrams does not seem to understand the under girding principles of our Constitution.  No one can be forced to do anything for their own good.”

Oh, really Lyttle?  Well, first, the goal is not to help the nonvoter. 

It‘s to benefit the system by having something closer to a true democracy.  So this has nothing to do with doing something for their own good.  And even if it is, how would you explain seatbelt and helmet laws or laws that allow police to take bridge jumpers off the edge?

And E. Weber in Mabank, Texas.  “Why should I waste my time so that I should be forced to choose between scum and slime?  I don‘t mind serving on a jury.  At least when I vote there, the scum bag ends up in prison, not ruling the most powerful nation in the world.”

Again, you‘re not being forced to vote.  Just to explain why you‘re not.  And I might be willing to suggest an exemption for Mr. Weber.  Glad to see you‘re being open-minded on those juries too.

From Harriman, New York, Kate Schweizer.  “Of course because it is a good idea and smacks of common sense it will never happen in this country.”

The Scott Peterson case where the defense wrapped up today and a comment from one of my guests.  Mercedes Colwin said when—she said $15,000 Scott had with him when he was arrested wouldn‘t have been enough for him to start a new life.

Sarah Liesinger in Kentucky.  “First of all, if I had 15,000 no matter what the currency exchange, I could definitely start some kind of life in Mexico.  It probably wouldn‘t be the life I would like to live, but being a bum in Tijuana sounds better than federal prison.”

Eric Nelson in Monterey, California.  “Here‘s an idea for a reality show you could produce.  Give somebody 15,000.  Give them a few weeks to disappear for a year.  If after a year they pull it off, they could win some sort of monetary award, which Mercedes can pay.  I personally know surfers who have survived in Baja for 500 a month.”

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‘ guests, senior advisers to both campaigns.  “HARDBALL” is going to be just great (UNINTELLIGIBLE).  You‘ve got to stick around for that.

Thanks for watching.  See you tomorrow.

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

END   

Copy: Content and programming copyright 2004 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2004 FDCH e-Media, Inc.  (f/k/a Federal Document Clearing House Inc., eMediaMillWorks, Inc.), ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and FDCH e-Media, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

Discuss:

Discussion comments

,