updated 10/28/2004 10:50:08 AM ET 2004-10-28T14:50:08

Guest: Gary Casimir, Mercedes Colwin, Gloria Allred, Ron Klain, Ronald Christie, Jamin Raskin, Mary Kiffmeyer

DAN ABRAMS, HOST:  Coming up, that‘s it.  The testimony is over in the Scott Peterson case. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  We look at the theories prosecutors presented. 

What stunk?  What didn‘t as both sides prepare for the closing arguments? 

And with just six days until the election, more crucial legal battles in courts and battleground states like Ohio, Iowa, and now even New Jersey.  We break down what they mean to you when you head to the polls. 

Plus, a Web site that allows voters to swap their votes with people from other states?  Primarily an effort by Nader supporters not to hurt Kerry in swing states.  Is it actually legal?  We‘ll debate. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, Scott Peterson‘s murder trial—quote—“That‘s it.  It‘s all done.”  With those words, Judge Alfred Delucchi sent jurors home and the lawyers off to prepare their closing arguments next week.  We all expected more testimony today, but the players obviously had something else in mind. 

KCRA‘s Edie Lambert is standing by at the courthouse with the latest. 

So, Edie, that‘s it.  They‘re done.  No witnesses today.  What happened?

EDIE LAMBERT, KCRA REPORTER:  Dan, I have to tell you, some members of the jury looked truly shocked when the judge announced there would be in witnesses in the rebuttal case.  They would not be hearing any testimony.  Yesterday the judge told them they could expect to hear from eight prosecution witnesses.  But instead of bringing those people in, the lawyers on both sides met behind closed doors and agreed to certain facts.  And today the judge read those statements to the jury. 

And I‘ll try to go through those very quickly for you.  First of all, the Peterson‘s neighbor confirms that he stored bags of cement mix on the Peterson‘s driveway using that cement for part of a construction project he was building a pool.  Now, this is important because the prosecutors contend that the defense sample of concrete from the Peterson‘s home was contaminated by this next-door construction project.  That neighbor, I should tell you, Vladimir Rodriguez, and a woman who took a photo of the cement that was stored at the Peterson‘s were on the witness list and were here prepared to testify.  Gloria Allred represents the woman who took the photo. 

The next issue, a printout of an e-mail seized during a search warrant at the Peterson‘s‘ home.  We don‘t know the content, but I‘m sure we‘re going to hear all about it during closing arguments.  They also admitted a Yahoo! search from Scott‘s computer that pulled up a map of the San Francisco Bay and a receipt from the store that Karen Servas shopped at the day Laci disappeared.  Now she‘s the neighbor who found the Peterson‘s dog.  She used the receipt to nail down the exact timing.  And I can tell you she was also here today and she was prepared to testify. 

And Dan, after court, Jackie Peterson, Scott Peterson‘s mother, appeared pretty upset.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Where‘s accountability?  (UNINTELLIGIBLE)

UNIDENTIFIED FEMALE:  It‘s been happening for 22 months. 

UNIDENTIFIED FEMALE:  Well, I don‘t take it lying down.  They don‘t have me locked up. 

(END VIDEO CLIP)

LAMBERT:  Jackie had wanted to go up to the podium where usually the legal analysts talk to the media about the events of the day.  And my understanding is that she was not happy that she was characterized by some legal analysts as perhaps lying to save her son.  As you know, she was called as a defense witness and she gave some explanation for Scott‘s behavior.  Some analysts have suggested, you know, a mom will say anything when her son faces the death penalty.  And Scott‘s brother, John, called today‘s lack of testimony a dirty trick by the prosecutors.

Back to you. 

ABRAMS:  All right.  Edie Lambert thanks a lot.  “My Take”—the defense has ended here with a whimper.  I‘ve said in the past that a hung jury would be a victory for the prosecution because they started off so poorly, but apart from their performance, the evidence is now powerful and while a hung jury is still a distinct possibility, maybe a likelihood, I think the chance of Peterson being acquitted is now remote. 

Joining me now, criminal defense attorneys Mercedes Colwin and Gary Casimir and Amber Frey‘s attorney Gloria Allred.  All right.  Before we get into all the issues in this case, what did the defense present in response to the prosecution, et cetera, Gary do, you agree with the statement I just made? 

GARY CASIMIR, CRIMINAL DEFENSE ATTORNEY:  Yes, I think overall I think the case does look stronger than looked a couple of weeks ago.  The defense didn‘t drop any credible bombshells.  You know, I think a hung jury is still likely, Dan.  I don‘t think it‘s out of the realms, but they‘re doing better than they were doing before.  We have to consider how they‘re going to take into consideration the jury instructions. 

ABRAMS:  Mercedes.

MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY:  No, I think you are right.  I mean certainly as a defense attorney, you want to leave in the blaze of glory and you want to end on a high note and it was just—it was like a matchstick.  There was no energy whatsoever.  Very flat.  Not a good one for Geragos. 

ABRAMS:  Gloria, a sense at the courthouse of the tides changing? 

GLORIA ALLRED, AMBER FREY‘S ATTORNEY:  Absolutely.  I think there‘s been a seismic shift in the legal landscape and the media landscape ever since Dr. March‘s testimony.  He, of course, was the defense expert that basically imploded on the stand, asked for the prosecutor to cut him some slack and went downhill from there.  And then after that, the defense put on a few more witnesses, but basically nothing much, and there was a report today that Henry Lee, Dan, was actually standing by at a hotel room in Redwood City.  He, of course, was going to possibly be called by the defense.  He was on the defense expert witness list.  He never got called.  So...

ABRAMS:  Yes.

ALLRED:  ... no Dr. Henry Lee, no Dr. Cyril Wecht, no Scott Peterson on the witness stand, no return of Amber Frey...

COLWIN:  Well, Scott Peterson was never going to testify.

ALLRED:  ... and the defense case just went down south. 

COLWIN:  Scott Peterson was never going to testify. 

ABRAMS:  Yes...

COLWIN:  Any expectation of that was just dreaming. 

ABRAMS:  Defense spin as I‘ve said many, many times on this program. 

All right.  Closing arguments—some people say they could make or break

this case.  You know I‘m sort of torn about this.  I don‘t know if they‘re

really going to matter or if they‘re going to maybe make all the difference

·         Gary. 

CASIMIR:  Yes, I think they will make all the difference in the this case.  I think Geragos has to come back strong on closing arguments.  I think Gloria is right.  There has been a seismic shift here in the case going more in favor of the prosecution, but it‘s not over yet.  And I think the summations are important.  The prosecution—actually I think the prosecution did the wise thing.  Stop putting people on the stand and end leaving Geragos in this whimper as you described...

ABRAMS:  Gloria...

(CROSSTALK)

ABRAMS:  Gloria, how important are the closings? 

ALLRED:  Well, I think the closing is always important, especially in a complex case, in a lengthy case, and it has been that for the prosecution.  I think it helps to tie it together, to put those pieces...

ABRAMS:  Is it make or break? 

ALLRED:  ... of the puzzle...

ABRAMS:  Is it make or break? 

ALLRED:  Well, you know, my guess is that many people on the jury, just a guess, are leaning one way or another, but it could help them—those who are leaning one way to lean farther in that direction and those who are leaning the other way maybe, you know, to take a different stand...

ABRAMS:  Mercedes...

ALLRED:  ... a different path.

COLWIN:  Dan, it‘s critical.  This is a case that‘s going to be won or lost in that closing argument, and you‘ve got to do point-counterpoint as a defense attorney.  Amber Frey, the two other mistresses, the money, the mother that testified I gave him that cash.  It was a loan.  Go point by point and at the very end...

ABRAMS:  Well...

COLWIN:  ... he‘s going to have to do that.  The only thing that he

didn‘t do, which I was very upset, and I think you are right that Dr. March

·         that was Gloria‘s point—completely imploded on the stand.  He has to show the gestational age of that baby...

ABRAMS:  Yes.

COLWIN:  ... and he—and he kept saying he‘s going to prove that baby was born alive.  I don‘t know how he‘s going to be to handle it in the closing argument...

ABRAMS:  All right...

COLWIN:  I think he‘s just going to have to sweep it under the rug.

ABRAMS:  We will go point by point in a minute, and I should tell you that tomorrow I will begin my closing argument.  I‘m going to present a closing argument for the prosecution tomorrow, a closing argument for the defense on Friday. 

And coming up, we‘ve got more (UNINTELLIGIBLE).  New Jersey was once a Kerry stronghold, but now just six days to Election Day a new poll shows it‘s up for grabs.  How will a major legal ruling in the Garden State effect the race? 

Plus, an online campaign underway to make everyone‘s vote count, but not the way you think.  Some voters are looking to trade their votes with others in key battleground states and it really may be legal.  What‘s going on?  Once again, it relates to Ralph Nader. 

Your e-mails to 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, what did the prosecution present?  How did the defense respond?  We‘ll go point by point to what we‘ve heard in the Scott Peterson case.  Coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

MARK GERAGOS, SCOTT PETERSON‘S ATTORNEY:  Actually the most likely thing that happened that was proved at the preliminary hearing is that she was abducted and she was abducted by someone other than my client.  And that she was abducted while walking her dog. 

(END VIDEO CLIP)

ABRAMS:  OK.  Maybe.  The question is has Mark Geragos proved that in his case?  And again, everyone keeps saying the defense doesn‘t have to prove anything.  Mark Geragos said in his opening statement that he was going to show that Scott Peterson was stone cold innocent, more than just proving beyond a reasonable doubt.  We‘re going to go point by point. 

Let‘s start with the issue of Scott‘s suspicious behavior, what the prosecution presented, how the defense responded.  First, he told some people that on the day Laci went missing he went fishing.  He told other people he was golfing.  He avoided the media when many people would think that you‘d want to get the media to help you to find your missing wife.  He repeatedly lied about his whereabouts to family and friends.  He maintained at the very least contact with Amber Frey, even called her from his wife‘s vigil telling her how he wanted to stay with her and live a life together, et cetera. 

He lied to the media and it appears the police on a number of occasions.  He ordered porno channels just weeks—or somebody in his house did—two weeks after Laci disappeared.  He made a number of trips to the marina where Laci‘s body was eventually found.  He, according to the authorities, tried to evade police shortly before the arrest and they say he was ready to flee to Mexico. 

All right.  How did the defense respond?  Why did he visit the San Francisco Bay in January?  Well first of all, he said it was to look for witnesses.  And then they also say that it was reported in the paper at a certain point that they were searching in the bay, so Peterson wanted to check on the progress.  Was he evading police before the arrest? 

Well, Peterson says he thought he was being followed by the media, not law enforcement.  Was he ready to flee to Mexico?  Peterson was ready—was going to play golf.  He was carrying almost $15,000 in cash because his mother paid him back $10,000 she accidentally withdrew and had his brother‘s license to reduce green fees.  Of course, he didn‘t have any golf clubs or golf shoes with him. 

You know, this to me, Mercedes, is one of the biggest problems for Scott Peterson is—and we‘re going to get to my second problem in the next issue, but they haven‘t really addressed all of his odd behavior—I mean the fishing versus golfing, for example.  Why he was saying these things to Amber Frey, why he is calling her from the vigil, et cetera.  It seems that they really have left it out there that Scott was behaving like someone juries could say is guilty.

COLWIN:  One thing, though, -- and I think he did it effectively during cross-examination because it did come through some of these other witnesses that came forward where they established he was distraught, he was extremely upset when he was talking to those individuals that were peppering him with questions as to where he was, what was he wearing—what was she wearing—what was Laci wearing?  Was she wearing shoes, not wearing shoes, wearing a coat?  He‘s on the cell phone trying to answer questions, trying to talk to people.  So I think through cross-examination they have been able to establish some of that.  I think where the problem is really going to be are the tidal currents and why the bodies floated...

ABRAMS:  That is our next issue. 

COLWIN:  That is a huge one, Dan...

ABRAMS:  That‘s the next issue.

COLWIN:  I‘m not sure he did anything with that. 

ABRAMS:  Yes, that‘s issue two.  But Gary, I don‘t know, it just seems to me that they have left out there—they really haven‘t, I don‘t think, convinced people that Scott was not acting suspiciously. 

CASIMIR:  I don‘t think you can, Dan.  I think that‘s an incredibly burdensome thing to overcome and it‘s not possible to overcome whether or not he‘s suspicious because part of it is subjective and other part is objective.  Obviously, the prosecution is portraying every act he does is suspicious and the defense comes in no there is a reasonable explanation...

ABRAMS:  But they didn‘t.  But that‘s the thing, is they didn‘t offer a reasonable explanation, for example, for why he told some people he went fishing, other people he went golfing on the day Laci disappeared. 

CASIMIR:  Well there was—I think there was—if you look at the facts, I think there was one or two people told that.  They were just friends.  The police were always told he went fishing and he also gave the marina slip.  So it wasn‘t as if he was hiding...

ABRAMS:  Well...

CASIMIR:  ... the fact that he went fishing. 

ABRAMS:  Gloria, I think that there were three—was it three witnesses who said that he said that he had gone golfing that day or was it two? 

ALLRED:  I‘m not sure if it was two or three, but here‘s the issue.  If, in fact, that were the only time where he said something or did something that was suspicious, then maybe we could go with an innocent explanation like, OK, he was just distraught about the fact that his pregnant wife was missing.  But the fact is it‘s beyond dispute that this man is a chronic liar and both through word and deed and action, he had shown himself to be a person...

ABRAMS:  Yes.

ALLRED:  ... who really is not a trustworthy person...

COLWIN:  But Gloria...

ALLRED:  ... and so you have to look at the big picture in reference to Scott Peterson.  When you look—when you fit that into the big picture...

(CROSSTALK)

ABRAMS:  Let me move on...

COLWIN:  That was said at the very beginning.  He‘s a cad.  He‘s a jerk...

ABRAMS:  All right.  All right.

COLWIN:  He‘s not a killer.  We‘ve said it.

ABRAMS:  Let me get to issue two and that‘s the one that Mercedes just mentioned, the location of the bodies.  All right—number 17 here.  Remains wash up 90 miles away from the home in the same area where Peterson says he went fishing.  And you know it says on the screen there less than two miles.  It may have been even closer according to a prosecution witness. 

What was the defense?  Well, they have been suggesting and, again, they didn‘t really have any explanation, but suggesting that Laci was abducted and her body was dumped in the bay in an effort to frame Scott Peterson.  You know, Gary, this is such an important point, and yet we really, I don‘t think, got anything from the defense as to how to explain this. 

CASIMIR:  You know, Dan, you know what is unfair about this?  How does he—if he wasn‘t involved, how does he explain it unless he knew what happened. 

ABRAMS:  Well...

CASIMIR:  The only way he could know how the body got there was to be involved with the murder...

ABRAMS:  That‘s called incriminating evidence. 

CASIMIR:  Right and there‘s no way—that is exactly the point I am trying to make.  You are trying to say he has not disproved that the bodies washed up 90 miles...

ABRAMS:  I‘m not saying disproved.  I‘m saying...

(CROSSTALK)

ABRAMS:  ... I‘m saying it‘s too important, I think—let me go to Mercedes.  I think it‘s too important to just leave this out there and say, oh you know what, maybe he was framed. 

CASIMIR:  Well...

COLWIN:  I think you are right, Dan.  I really think that a hydrologist should have come forward and testified.  Now I know that Geragos did a great job with the prosecutor‘s hydrologist because he had never done any of his tests with bodies.  He had done it with particles, so he did a great job.  But that jury was waiting for a hydrologist on the defense side to say this is how we—that is how we expect this body to wash up on shore and there wasn‘t that type of testimony and that‘s going to hurt him. 

ABRAMS:  Yes.  And Gloria, I don‘t blame Mark Geragos for this.  Bottom line is I think he did a really good job with this  -- the guy—the hydrologist who testified for the prosecutors.  It‘s just the facts are a little rough for him on this one. 

ALLRED:  The facts are rough and cutting this right down to the core, this is what remains, Dan.  If someone else was trying to frame Scott Peterson, why would they drop the bodies, perhaps anchor them down, so that they might never float up? 

ABRAMS:  Yes.

ALLRED:  Wouldn‘t they want to drop them in the place where they could float up right away so that Scott Peterson could be framed? 

ABRAMS:  Yes.

ALLRED:  What they did was very risky.  You know it kind of strains...

CASIMIR:  Well Gloria...

ALLRED:  ... logic and imagination to suggest that someone would try to frame him that way...

CASIMIR:  I don‘t think they ever found...

ALLRED:  ... when the possibility was the bodies might never wash up.

COLWIN:  They never found the anchors, though, Dan. 

CASIMIR:  They never found the anchors Gloria...

COLWIN:  I mean they found one...

ABRAMS:  But they...

COLWIN:  ... and then there is the assumption...

ABRAMS:  Wait.  But they found a completely decomposed body, so I guess the other possibility would be that I guess somehow her body decomposed somewhere else and the framers then took the decomposed body and that of a sort of well intact body of Conner and just threw them in and they found it like the next day...

CASIMIR:  Dan...

COLWIN:  Dan, I think the closest they came to it is just saying that there were these shanty (UNINTELLIGIBLE) these homeless people...

ABRAMS:  Yes.

COLWIN:  ... that could have dumped her body (UNINTELLIGIBLE).  That was the closest explanation I heard. 

CASIMIR:  I also think Dan...

ABRAMS:  Yes.  Very quickly. 

CASIMIR:  ... just quickly.  I just wanted to say on closing arguments, Dan is—I‘m sorry, not you, Dan...

ABRAMS:  I‘m doing it tomorrow, tomorrow...

(LAUGHTER)

CASIMIR:  ... tomorrow...

ABRAMS:  ... yes, go ahead. 

CASIMIR:  But Geragos is going to drive home the idea that look even their people didn‘t do a good job in trying to figure out how this body got here and he‘s going to use that testimony.

ABRAMS:  All right.

CASIMIR:  If he put a hydrologist on the cross-examination...

ABRAMS:  All right.  See everyone is going to stick around.  Coming up, we‘ll have more.  We‘re going to go through the issue of motive. 

And every day until Election Day we bring you the big legal issues affecting the race.  Tonight‘s focus, battleground states of Ohio, Iowa and now what‘s being called a close race in New Jersey all with major rulings.  We break it down.  Coming up. 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

JOHN PETERSON, SCOTT PETERSON‘S BROTHER:  The prosecution was hoisted by their own petard today, trying to play dirty tricks with the witnesses and that‘s what the stipulations were all about. 

(END VIDEO CLIP)

ABRAMS:  All right.  Well that is the brother of Scott Peterson talking about the events today.  It‘s over.  It‘s done.  The evidence is in.  We‘re going point by point.  Let‘s talk about motive.  This is one of the best points I think that the defense made in this case.  We‘ve been talking about how they didn‘t really do such a great job in some of the issues on motive.  I think they did do a pretty good job. 

Prosecutors said that there was a financial motive.  The couple‘s financial situation was bad.  Laci wanted a new car, planned to be a stay at home mother.  That he wanted a long-term relationship with Amber Frey and that he didn‘t want do become a father.  Well the defense was able to present an expert who said the couple was not in financial trouble, was doing well for a young, married couple with a baby on the way.  That Peterson had had at least two previous affairs and so why would he have killed for Amber Frey.  And they say that Peterson was looking forward to becoming a father. 

Gloria, would you agree with me that on this issue the defense did a pretty good job? 

ALLRED:  Well, I think with the financial issue, they made a little bit of a headway.  But I don‘t think they made a whole lot of headway on the prosecution‘s argument that the relationship with Amber was a motive for murder.  And I never said “the” motive...

ABRAMS:  Yes.

ALLRED:  ... but a motive for murder and I think that when the defense in their opening tried to minimize the relationship with Amber, they made a big mistake. 

ABRAMS:  I agree.

ALLRED:  The jury heard that you know there was a lot more to this relationship than just a few dates and Scott was talking about a future with her, wanting to be with her forever and leaving her the Norah Jones CD on her birthday February 10, “Come Away with Me”. 

ABRAMS:  Yes.  Well...

(CROSSTALK)

ABRAMS:  You can‘t leave Norah Jones and not mean it‘s serious.  All right.  Gary, go ahead.

CASIMIR:  I think the prosecution wasted too much time on Amber, the tapes over and over again and playing them on and on.  It was not necessary.  I think the jury got the point day one...

(CROSSTALK)

COLWIN:  I think the tapes are actually beneficial to the defense...

ABRAMS:  Oh come on...

COLWIN:  ... because he never said, Dan, I killed Laci. 

ABRAMS:  This...

COLWIN:  He never said that I had anything to do with it...

ABRAMS:  Listen to this, Mercedes...

COLWIN:  I had nothing to do with it...

ABRAMS:  This is beneficial to the defense? 

COLWIN:  No, I honestly believe that...

(BEGIN AUDIOTAPE)

SCOTT PETERSON, ON TRIAL FOR MURDER:  You know, in my mind we could be wonderful together and I could care for you in any and every way.  For the rest of our lives I think we care for each other and Ayianna and you know we could fulfill each other.

AMBER FREY, SCOTT PETERSON‘S FORMER GIRLFRIEND:  What—and Ayianna what?

S. PETERSON:  We together could care for her and you know raise Ayianna.

FREY:  (UNINTELLIGIBLE)

S. PETERSON:  And we could fulfill each other, you know, forever.

(END AUDIOTAPE) 

ABRAMS:  Mercedes, I‘m sorry, you were saying...

(CROSSTALK)

ABRAMS:  ... you were saying how those calls a week after...

(CROSSTALK)

ABRAMS:  ... she disappears helps the defense? 

COLWIN:  I feel framed. 

(LAUGHTER)

ABRAMS:  All right.

COLWIN:  I‘m going to plead the fifth on this. 

ABRAMS:  I set you up...

COLWIN:  No, honestly, it was buried.  The totality of it...

ABRAMS:  All right...

COLWIN:  ... he never admitted...

ABRAMS:  I‘ve got to wrap it up.  Mercedes, Gary, Gloria, thank you so much. 

COLWIN:  Thank you so much.

CASIMIR:  Thank you.

COLWIN:  Thanks Dan.

ABRAMS:  Some of you told me to put up or shut it when it comes to the Scott Peterson case.  Well it‘s time for me to put up.  That‘s right.  I will present my version of the closing arguments for both the prosecution and the defense starting tomorrow night.  They just need a day.  I‘m going to do in it a few minutes. 

Coming up, a New Jersey superior court rules on a last-minute effort to block the use of electronic voting in next week‘s election.  It could affect how five million residents in that state cast their ballots.  We‘ll tell you about the other big legal rulings handed down today, how it could impact your vote on November 2. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, six days until the election.  New lawsuits still being filed by both parties.  We‘re looking at the latest of the legal wranglings and the rulings that have come down today.  They‘re significant, but first the headlines. 

(NEWS BREAK)

ABRAMS:  We‘re back.  You‘re looking at Democracy Plaza, Rockefeller Center in New York, site of MSNBC‘s election coverage.  Every day until the election we‘re bringing you the latest on the legal wrangling.  It could very well help determine who the next president of the United States will be in this razor-close race six days out. 

We focus on three critical states today.  In Ohio in just the last hour, a federal judge has temporarily stopped hearings on thousands of voter registrations.  The ruling prevents the state GOP from challenging the eligibility of thousands of newly registered voters.  The ruling comes in response to a federal lawsuit filed yesterday and while the Democrats claim the Republicans are trying to intimidate eligible voters, Republicans say they are just trying to prevent fraud. 

In Iowa, where Bush and Kerry are neck and neck, another lawsuit, this one over provisional ballots.  Remember the ballots given to voters who say they should be registered but don‘t appear on the voter rolls.  The secretary of state, a Democrat, says it‘s OK for voters to cast provisional ballots outside of the precinct where they are registered, but five Des Moines area Republicans are challenging that in court.

And so far in other states, Florida, Ohio, Michigan, courts have ruled that provisional ballots from outside the voter‘s precinct should not be counted.  And suddenly Bush and Kerry are neck and neck in New Jersey.  Yesterday Superior Court Judge Linda Feinberg ruled that electronic-ATM like voting machines can be used saying it would be too tough to switch to a new system on such short notice. 

(BEGIN VIDEO CLIP)

DIANE GRIBBLE, BOARD OF ELECTIONS:  We know from past elections the difficulties with provisional ballots and counting and confusion.  The lines would be long.  Voters would become dismayed, and the integrity of the election will be greatly compromised. 

(END VIDEO CLIP)

ABRAMS:  All right.  “My Take”—in Ohio, I‘m not really sure I see the problem with trying to assess whether the registrations are valid now.  Better now than in the heat of the legal battles that might occur after the election.  Provisional ballots in Iowa, as I have said before, these ballots should be a shield to protect voters who should be on the voter rolls, not a shield to protect them from their own mistakes.  It‘s a protection from the errors of the government. 

And in New Jersey, I think the judge handed down the right ruling.  I don‘t see as a practical matter how you can invalidate an entire system of voting six days before the election.  As the judge said herself, it would be a—quote—“formula for disaster.”  While I seem to be siding with the Republicans on almost all of these legal issues, wait until you hear my “Closing Argument”.  Wisconsin Republicans may not be so thrilled. 

Joining me now to discuss the latest development in these cases is Ron Klain, the former general counsel for Vice President Gore‘s 2000 Recount Committee.  Ron, good to see you again.

RON KLAIN, GORE 2000 RECOUNT GENERAL COUNSEL:  Good to be back here.

ABRAMS:  And Ronald Christie in Washington, D.C., a former adviser to Vice President Cheney.  All right, let‘s go through these one by one.  Ron Klain—I guess I have to call you by your last names since you‘re both Ron.  Ron Klain, let‘s talk about this Ohio ruling.  This seems to be a fairly significant issue.  Basically what the Ohio Republicans want to do is they wanted to go through these registrations and they wanted to determine if there were problems because they were sent back in the mail or other issues happened.  What is the matter with that? 

KLAIN:  What‘s the matter with it is there‘s really no evidence of problems with this registrations and you know this is just an effort to try to knock out a bunch of voters.  It‘s part of an overall effort to try to disqualify as many voters as possible.  But look, I think the most important thing for voters to know, Dan, this is an interesting debate for the lawyers.  The lawyers will have all these debates.  We‘ll debate this stuff today, tomorrow, on for months and months to come. 

Both campaigns are fielding very, very strong legal teams in the field.  If voters register, they should come to the polls.  People will find a way to get them to vote.  They will get them to the right precinct.  They will get them to the right place.  We‘re going to protect our voters this time.  We‘re going to make sure people aren‘t turned away.  They aren‘t harassed.  You know, this is interesting for the lawyers, but for the voters, voters shouldn‘t be turned off or scared away by any of these tactics. 

ABRAMS:  Ronald Christie, what about—let‘s stick with Ohio for a minute.  What do you make of the ruling? 

RONALD CHRISTIE, ELECTION LAW ATTORNEY:  Sure.  I respectfully disagree with my colleague.  For one thing, “The Columbus Dispatch”, the paper out in Columbus, Ohio has noted that there are over 120,000 duplicate registered voters in the state.  For another thing, “The Columbus Dispatch” has also found that there are two people who are suspected terrorists and one person who has been a murder victim in Ohio who are legally registered to vote.

Rather than trying to suppress the legal rights of people to vote, instead the Ohio folks want to insure that only registered, legally registered votes are eligible to vote...

(CROSSTALK)

CHRISTIE:  ... and I think that‘s the integrity that they‘re trying to maintain. 

ABRAMS:  I mean I made the argument—let me reverse it on you for a minute.  Why not, if there are a couple of these real, you know, wild cards out there, why not deal with them after the election?  That‘s the whole point of provisional ballots, right, is to say look, place your vote, we‘ll deal with it and we‘ll figure if you‘re legitimate later. 

CHRISTIE:  Sure.  Well the reason that the whole lawsuit was filed, Dan, is that there‘s a statute in Ohio that was created back in 1953 that says that a party if they are concerned about the legality of someone who is registered to vote can challenge provided that there are three days notice beforehand and two days prior to election for a hearing.  I agree with the point that you have made, but we just want to insure that the legally voting people are actually eligible and going to the polls to cast their ballots. 

ABRAMS:  Iowa, provisional—I think provisional ballots are going to be such a crucial issue in this case.  New law 2002, Iowa—and I quote here—this is related to the Iowa code.  “No person shall vote in any precinct but that of the person‘s residence.”  You know, Ron, do you really think that the provisional ballots should allow people to go to the wrong precinct and still have their votes count? 

KLAIN:  I think we have a lot of voters who are confused about where their polling place is.  People who have not voted in the off-year election, vote only in presidential elections, we‘ve had redistricting since then.  A lot of polling places have changed.  People are confused.  Again, I come back to my core point, though, which is these legal fights over provisional ballots, they‘re fun for the lawyers.  They‘re interesting, but if people show up at the polls on Election Day, what the voters need to know is show up, someone will be there.

ABRAMS:  Yes.

KLAIN:  They will get you to the right place.  Your vote will count.  And I think what the Republicans are really trying to do is to throw up a lot of chafe before the election to scare off voters to make them think it‘s going to be hard.  It isn‘t going to be hard.

ABRAMS:  Let me stick with provisional ballots, though, for a minute.  You know you say that there is a lot of confusion, but why should provisional ballots sort of give you a pass that you wouldn‘t ordinarily get if you just showed up at the wrong precinct?  They‘d say, look, you know sorry, you‘re in the wrong precinct. 

KLAIN:  Again, the problem here is I think since redistricting a lot of people have changed polling places.  The whole point of provisional ballots—look voting shouldn‘t be a game.  It shouldn‘t be some kind of a contest where voters have to leap over five hurdles to vote.  If someone is registered to vote, you know, as long as we can prove in the end they only voted in one place, why not let the people actually pick their president?  Why not let the voters vote, put the provisional ballots aside, sort it out after the election and you know make sure that the voters who vote get their votes counted.  That is the goal here.

ABRAMS:  Ronald Christie.

CHRISTIE:  Well I‘d respectfully disagree again.  Again, it‘s the questions of provisional ballots were made to insure that in case a voter who is legally registered to vote and there was some discrepancy about their eligibility, that that vote could be counted after the election.  Instead, rather than accusing Republicans of trying to suppress the vote, instead Republicans are trying to insure that only those who are in the proper statutory precinct are eligible and allowed to vote. 

ABRAMS:  But that does sound—when you start talking about proper statutory precinct—and while I happen to agree with you on this one—you know, there is a serious argument on the other side that says, you know, boy that does sound technical.  I mean if we‘re trying to make people enfranchised, if someone is a registered voter and they went to the wrong precinct, so what? 

CHRISTIE:  Well, Dan, I agree.  I mean I don‘t mean to get into legal mumbo jumbo here.  I think the important thing is that voting is a solemn responsibility.  We have between now and November 2.  Let‘s make sure that voters go out and they contact their proper folks in their local jurisdiction so that they‘re going to the proper polling place. 

ABRAMS:  I‘ve got 10 seconds—New Jersey, here, Ron Klain, no big surprise here—I mean I can‘t see how a judge is going to rule that all electronic voting systems in any state have to be thrown out.  Do you agree?      

KLAIN:  I agree Dan.  And I think actually the electronic voting system is going to be a big boon for a lot of Democratic voters, areas we‘ve had votes thrown out in the past.  I actually think electronic votes are going to help us this year.

ABRAMS:  All right.  Ronald Christie, I‘ve been seeing a lot of you lately.  Thanks again.  And Ron Klain, it‘s great to have you back on the program.  Welcome back.

KLAIN:  Thanks Dan.

ABRAMS:  Hope to have you again soon.

KLAIN:  Thank you very much.

CHRISTIE:  Thanks Dan.

ABRAMS:  Stick around.  Coming up, Democrats say Ralph Nader cost Al Gore the presidency in 2000.  This time Nader supporters who don‘t want to hurt Kerry‘s chances are trading their votes on the Web?  Some of them.  That‘s right.  Trading them.  But is it legal? 

And students helping register people to vote.  What‘s wrong with that? 

Well, apparently a lot according to one leading Republican in Wisconsin. 

It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  So you‘re a Ralph Nader supporter in Florida, a swing state that could go for either Kerry or Bush on Tuesday.  You don‘t want to vote for Kerry, but you don‘t want the president re-elected either.  So what do you do with your vote that will make a statement for Nader but keep President Bush from getting the Electoral College votes he needs to win?  Well, an online service called VotePair.org is offering a possible solution.  Register online to pair or swap your valuable swing state vote for Nader with a voter in another state where Kerry is all but a sure thing.

(BEGIN VIDEO CLIP)

AMY MORRIS, VOTEPAIR SPOKESPERSON:  The idea behind vote pairing is that we don‘t affect the popular election result nationwide.  But just sort of help voters communicate about strategic voting so that Kerry votes are allocated differently in swinging (UNINTELLIGIBLE) states.

(END VIDEO CLIP)

ABRAMS:  And VotePair.org says it‘s paired close to 1,700 voters so far for this election, including 334 in Florida, 202 in Ohio, nine in West Virginia, 95 in Minnesota.  Tiny numbers, but with only hundreds of votes determining the outcome in Florida in 2000, a handful of votes could swing the election.  The problem, some say, vote swapping is illegal. 

In 2000 online vote swapping started.  California secretary of state threatened legal action.  Several Web sites shut down.  In 2000 Minnesota‘s secretary of state called vote swapping the ultimate in voter fraud.  State laws vary, but they basically reflect the federal code. 

Quote—“Whoever conspires with another individual for the purpose of encouraging his false registration to vote or illegal voting or pays or offers to pay or accepts payment either for registration to vote or for voting, shall be fined not more than 10,000 or in prison not more than five years or both.”

“My Take”—as a practical matter, I think it‘s a copout.  Anyone looking to swap a vote is clearly trying to circumvent the Electoral College.  If you don‘t like the Electoral College, work to get the system changed.  But undermining the system is, well, just that.  However, as a legal matter, I don‘t see how anyone can stop people from doing it.  It would be a stretch to define a swap vote as something of value as defined by the law. 

How different is it from a man and woman talking politics in a bar?  The woman says I‘d find you more attractive if you were voting for Kerry and the guy says, OK, I‘ll vote for him then.  How could you enforce this law without getting into the mind of the voters? 

My guests Jamin Raskin is a constitutional law professor at American University‘s Washington College of Law.  He advises VotePair.org on legal issues.  Ronald Christie joins us again, former adviser to Vice President Cheney, election law attorney.  And Mary Kiffmeyer is Minnesota secretary of state.  She spoke out strongly about this.  She joins us on the phone. 

All right.  Ronald Christie, as a legal matter, do you think I am wrong on this? 

CHRISTIE:  No, Dan, I think you‘re right.  As a practical legal matter, I think it‘s going to be very difficult to find what these folks who are trying to pair their votes to prove that it‘s illegal.  On the other hand, I happen to agree with former Secretary of State Bill Jones out in my home state of California who said that even though that you are clearly working with another individual to swap your vote, even though it‘s not a cash or a monetary system, it‘s something of value...

ABRAMS:  Well if it‘s something of value, then it‘s illegal.  I mean...

(CROSSTALK)

ABRAMS:  ... if you‘re saying it‘s something of value, then it‘s going to be illegal. 

CHRISTIE:  Well yes, Dan, I do think it‘s something of value.  I think it‘s going to be very difficult to prove that in a federal court.  And in fact the California decision is still tied up in the federal court given Secretary of State Jones‘ initial action.  But I think it should be illegal, although I just think it will be very difficult to prove that in a federal court of law. 

ABRAMS:  Professor Raskin? 

JAMIN RASKIN, VOTEPAIR.ORG LEGAL ADVISER:  Well in 2000, 36,000 people participated in online vote pairing before Secretary of State Jones in California, a partisan Republican activist, shut it down through his criminal prosecution threat letters.  We have been winning in federal court and his successor has said it‘s not legal in California.  It‘s perfectly legal to engage in vote pairing.  And these Republican secretaries of state like Secretary Kiffmeyer know it‘s perfectly legal.  It‘s protected by the First Amendment, which protects the right of political association and political expression on the Internet and they are just trying to interfere with the Democratic election in the year 2004. 

ABRAMS:  All right.  Secretary of State Kiffmeyer, your response. 

MARY KIFFMEYER, MINNESOTA SECRETARY OF STATE (via phone):  Well I think it‘s kind of interesting that what they want to do is have their vote and their conscious, too.  And they are trying to cut it both ways.  Why not just be straightforward and honest and simply vote and not turn it into a phony kind of game?  And I think the important thing here is that with most people, legal or not, you guys fight the battle, take it to court, do whatever you want to do.  It just doesn‘t pass the smell test, and I think a vote is something of value.  It‘s incredibly valuable and it isn‘t maybe the same kind of monetary, some other things like, but I think why not just be honest and straightforward and just vote. 

ABRAMS:  Are you going to file any lawsuits in connection with this? 

KIFFMEYER:  We are leaving that in the hands of the attorneys.  There is already a case in court right now that‘s being worked on and so we‘re going to leave it, go through that kind of process right now. 

ABRAMS:  Professor Raskin, what about that?  I mean let‘s put the legal—strictly legal issues aside...

RASKIN:  Yes.

ABRAMS:  ... and address the practical matter, which I brought up in the introduction, which was saying that, you know, as a practical matter, this is really just an effort to undermine the electoral system. 

RASKIN:  On the contrary.  The voters have the same First Amendment right to use the Electoral College as the candidates and the campaigns do.  And what these Republicans are saying is that voting is sort of like writing a poem or painting a picture and you have to express your innermost conviction.  That‘s not right. 

Voting at least for a lot of people is tactical and strategic activity.  In fact, for a lot of Republicans it‘s that way, too.  I mean look at the Democratic ticket.  John Edwards ran for president, but now he‘s supporting John Kerry, the guy he ran against.  So he‘s now supporting for president the guy who was his second choice.  That‘s the nature of politics.  John McCain ran against George Bush, then he endorses George Bush.  The nature of politics is people—they oppose each other and then they sit down and they strike a deal and a compromise.  And that‘s the nature of Democratic politics. 

ABRAMS:  All right.  Mr. Christie. 

CHRISTIE:  Dan, I respectfully disagree.  Look, this isn‘t—this is not a question of Republicans trying to subvert the will or the Republicans doing this or that.  It‘s a question of if one is eligible to vote in their state, they cast their ballot in their state and the jurisdiction awards the Electoral College votes and then so forth the president is decided.  I just don‘t understand why people would want to subvert the system just because they dislike a particular candidate when instead, they should faithfully and honestly participate in the system rather than trying instead to game it. 

ABRAMS:  What about the point that Professor Raskin just made, though?  It‘s effectively the same thing as the candidates do.  They‘re just making deals, but you know they‘re allowed to vote for whoever they want? 

CHRISTIE:  Dan, it‘s one thing to make a deal when you‘re looking at trying to sway a vote if you are in the House of Representative and you‘re looking to get over a majority for 218, but it‘s an entirely different thing in my opinion to be swapping with someone in a different state to try to subvert the Electoral College system...

(CROSSTALK)

CHRISTIE:  ... something that our framers intentionally designed. 

ABRAMS:  Final word Professor Raskin.

RASKIN:  That‘s not right.  First of all, nothing is swapped here.  Everybody cast their own ballot.  They go in the secrecy of the polling place and the voting booth and they vote themselves.  They vote their own conscious according to everything that has taken place before.  So nobody is swapping anything.  We would be totally opposed to people getting an absentee ballot and mailing it to someone in another state.  That‘s not what takes place here. 

UNIDENTIFIED MALE:  Professor...

RASKIN:  What takes place is just political dialogue and expression and association. 

ABRAMS:  And finally, Ronald, do you think it‘s any different than the example I gave, I mean initially which is you know a man trying to impress a woman in a bar.  She says if you vote for Kerry, I‘d be more attracted to you, and the guy says, all right, I‘ll vote for him? 

CHRISTIE:  Dan, no. 

ABRAMS:  I mean it‘s really not that—I have to say as a legal matter it‘s really no different than that. 

CHRISTIE:  Look, it goes back to my California example. 

ABRAMS:  All right.

CHRISTIE:  You‘re trying to swap something for value.  It‘s not just trying to pick up somebody in a bar. 

ABRAMS:  All right.  All right.  Anyway.  Professor Raskin, Ronald Christie, and Secretary of State Kiffmeyer, thanks very much for coming on the program.  Appreciate it.

RASKIN:  Thank you.

CHRISTIE:  A pleasure Dan.

ABRAMS:  Coming up, letting kids out of schools to help get out the vote in areas where turnout has been historically poor.  An official with one political party thinks that is a shocking, partisan effort.  It‘s my “Closing Argument”.

Your e-mails on Mark Geragos wrapping up the defense in the Peterson trial are coming up.

(COMMERCIAL BREAK)

ABRAMS:  Up next, is there anything wrong with letting kids out of school to help get out the vote?  At least one party official thinks there is.  I don‘t agree.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—what‘s wrong with giving school kids time off from classes to let them help get out the vote?  In the swing state of Wisconsin, hundreds of public school children have volunteered with the approval of their parents to take time out of their classes to help a group encourage people to vote—a sort of civic field trip.  But Chris Lato, the communications director for the Republican Party of Wisconsin has said—quote—“To spend this time on a clearly partisan effort when these kids should be in school learning is shocking.”

The umbrella group Wisconsin Citizen Action has announced its support for John Kerry for president.  But like many special interest groups, it‘s divided into an advocacy arm and an educational arm.  This is supposed to be the educational arm.  If there‘s evidence that the kids or the educational arm is engaged in political advocacy, then the organization is in big legal trouble, a separate issue.

No evidence of that yet.  The kids are not allowed to wear any partisan buttons or clothing, nor are they permitted to encourage people to vote one way or another.  It is for that reason that the Milwaukee Public School System has approved of the program.  Now it‘s true kids are knocking on doors primarily in minority neighborhoods with historically lower voter turnout and these neighborhoods tend to be Democratic.   

But if you‘re going to try to get people to vote, why would you go to areas where voter turn out is highest?  Are they suggesting schools should decide where to send the kids based on politics rather than on where they may have the most success adding people to the voter roles?  But more important to me and the partisan squabbles is that Mr. Lato seems to be saying that this is not a learning experience. 

Kids can learn a whole lot more about civics and government by being involved in some way than just by studying it in a book.  To suggest they‘re doing this instead of learning is nonsense.  I say encourage kids to get involved.  It‘s good for them and it‘s good for all of us. 

I‘ve had my say, now it‘s time for “Your Rebuttal”.  Yesterday the defense rested its case in the Scott Peterson trial without calling Scott Peterson to the stand.  As I said before, they never really considered it.  Anyone who suggested otherwise including some of my colleagues were just spinning for the defense.  It appears he was cross-examined, a mock cross-examination, though, by an attorney who worked with Mark Geragos. 

Holly Rose Garland from Wheeling, Illinois.  “Perhaps the reason Mark Geragos presented such a lackluster defense is that he discovered during the practice cross that the consulting attorney conducted last week that Scott Peterson really is guilty and Geragos did not want to face sanctions.”

I assure you he didn‘t learn anything from that mock cross-examination about his client‘s guilt. 

And Sharon Starsen in Honolulu, Hawaii with a thought about Peterson‘s life after the trial.  “If Scott Peterson is acquitted, perhaps he and O.J.  Simpson can get together to play a killer game of golf.”

Finally, Mark Marino from Fremont, California on why Scott had $15,000 with him when he was arrested.  “Did anyone ever consider that the reason Scott Peterson might have had $15,000 in his pocket is that he was on his way to Starbucks.”

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

I want to tell you we have a new way you can get involved with our show.  We‘ve entered the blogosphere.  That‘s right.  We have our own blog sidebar.  It‘s the blawg—get it—B-L-A-W-G about justice.  And you can get it through our Web site abramsreport.msnbc.com.  Click on sidebar, you‘ll hear from some of our favorite lawyers, some of our staff, and whether you like it or not, from me.  You can always sign up to get our daily newsletter for a heads up the stories we‘re covering every night there as well. 

A reminder, from now until Election Day, we‘re going to keep on top of the legal issues that could impact the election.  You know this could be it.  This could be the determining issues.  You can get more information on NBC‘s “Making Your Vote Count” project on our Web site.  We hope there will be a clear winner on election night.  But if there isn‘t, we will be here to cover all the legal issues along with our colleagues at Democracy Plaza. 

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

See you tomorrow.

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

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