updated 11/2/2004 10:12:33 AM ET 2004-11-02T15:12:33

Guest: Jeb Bush, Bill Richardson, Mark Weaver, Peter Rubin, Dean Johnson, Gloria Allred, Daniel Horowitz

DAN ABRAMS, HOST:  Coming up, battleground state Governors Jeb Bush and Bill Richardson tell us how their states are trying to prevent legal chaos tomorrow.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  We‘ll ask Florida‘s Jeb Bush what measures his state is taking this time around to make sure Florida doesn‘t become the legal epicenter again.  And New Mexico‘s Bill Richardson answers Republican charges his administration isn‘t doing enough to stop voter fraud in that swing state.

Also, big legal rulings today in Ohio—another state that could determine the election.  Two federal judges are saying that party challengers will not be allowed at polls to question voters‘ eligibility.  The state‘s Republican Party is already appealing.

Plus—the prosecution‘s closing argument in the Scott Peterson case.  (UNINTELLIGIBLE) observers say the prosecutor came back to life as he told jurors how Peterson planned to kill his pregnant life.  Our legal team is inside the courtroom with reaction from the family, the jurors, and even Peterson himself.

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight—question—could the state of Florida, the most infamous legal battleground of 2000 become the Florida of this election.  I‘ll ask Florida Governor Jeb Bush about that in a moment.

Right now polls show the race there is neck and neck according to the Zogby poll.  President Bush trailed Senator Kerry by one percent.  The Mason-Dixon poll has the president leading Kerry by four percent.  It is a statistical dead heat.  Early voter turnout appears to be setting records with state officials saying by tonight as many as two million of Florida‘s 10.3 million voters will have cast votes either early or by absentee ballot.

But there are legal issues that could put Florida‘s ballots back in the courts starting with provisional ballots.  Voters who don‘t appear to be properly registered get to cast a provisional ballots.  Those are only counted if they check out.  But expect some legal action if the voting is close enough, such as those vote will make the difference.

Then there are voter eligibility challenges.  Democrats say GOP poll watchers want to target and reduce minority voting.  The GOP says hundreds of felons, among others, have illegally registered.  There are no butterfly ballots this year, but questions about electronic voting.  Florida congressman lost the suit, claiming new touch screen machines lack a paper trail in case a recount is called for.

And there are missing ballots, thousands of absentee ballots apparently lost before voters could get them.  Postal officials say election officials are to blame.  That may sound like a lawsuit waiting to happen.  Florida officials say they‘re confident the election will move forward smoothly.

The chief Florida officials joins us now, Florida Governor Jeb Bush, a Republican, who is of course also the president‘s brother.  He joins us from the Bush-Cheney headquarters in Jacksonville.  Governor, thanks a lot for taking the time.  I know that you‘re hoping everything...

GOV. JEB BUSH ®, FLORIDA:  You bet.

ABRAMS:  ... is going to go smoothly in Florida and it‘s not going become a repeat.  You know, I spent a lot of time down there in 2000.  But I do see potentials for problems there.  Do you disagree with me on that?

J. BUSH:  I disagree with you, yes.  We‘ve reformed our laws.  We‘ve created a single standard for how to recount.  We‘ve improved the machines.  We‘ve funded voter education programs.  We‘ve reformed the absentee ballot program.  We now have a provisional ballot, which allows people to have access to the polls.  I do disagree with you.

Now, I don‘t disagree that the Democrats aren‘t lining up ready to sue.  They‘ve already said publicly they‘ll do so, but this will be a fair election.  It will be run by the 67 supervisors of elections in a fair way.  And my hope and prayer is that the president wins with enough of a majority, and my belief is that will happen, that we won‘t have to have this thing all lawyered up on Wednesday.

ABRAMS:  You know, I know this may seem hard to believe concerning the legal correspondent, but I hope so too.  All right, let me—Florida‘s absentee ballots—let me ask you about this issue about what happened to these absentee ballots?  A spokesperson for the U.S. Postal Service tells “The Washington Post”—quote—“There‘s no way in hell those people are going to get their ballots in a timely fashion.  They should get their act together over there”, he said.  What do you make of that?

J. BUSH:  I don‘t know what he‘s referring to.  I do know that there were some 60,000 ballots at the supervisors of elections office in Broward County.  I might add, just to clarify this—we don‘t run the election—

67 supervisors do.  This was in Democratic Broward County.  They saw that there was a possibility of a problem.  (UNINTELLIGIBLE) investigated and found that many of those people—most of those people got their ballots.  But in the abundance of caution, they sent Federal Express packages out to every one of those people last week and so they have gotten their ballots.

ABRAMS:  What about provisional ballots?  I mean look this is—this provisional ballot is not an issue unique to Florida.  But it is an issue that I think that states around the country are going to face and that is OK, you have an election that let‘s say gets really close and these...

J. BUSH:  Yes.

ABRAMS:  ... quote—“provisional ballots” become the make or break issue.  Doesn‘t that almost necessarily end up in the courts?

J. BUSH:  Well, the provisional ballots was a recommendation that we accepted based on the 2000 experience where we didn‘t have provisional ballots.  You know now people can go to their precinct.  If they‘re not on the list, they can vote a provisional ballot.  It can be validated whether they were supposed to be voting there.  And it‘s a way to provide access to the polls.  So you know, you can‘t have it both ways.  You can‘t be saying it‘s unfair to turn people away and then to say I‘m going to sue because there‘s provisional ballots.  The courts—you know we‘ve been sued on all of these things already, by the way...

ABRAMS:  Yes...

J. BUSH:  ... by activists groups and that one—the courts upheld the law.

ABRAMS:  And to be honest with you, look, when it came—we had Congressman Wexler on the program.  I told him I completely disagreed with his lawsuit with regard to saying that somehow...

J. BUSH:  He lost it too.

ABRAMS:  I know he did.  I know hi did.  And I made it quite clear to him when he was on the program that I didn‘t think he was going to win it.  What does happen, though?  Because his issue was have these new electronic systems, they don‘t create paper trails.  Florida law allows for recounts, sometimes mandates recounts.  What happens if there is a recount that is required and these electronic machines don‘t have the paper trail?

J. BUSH:  You have the ability to use the information in the machines to be able to determine what the voter‘s intent was.  It is possible to do that and that was proven out.  There was no way to have a paper trail because there‘s no equipment that has a paper trail attached to it that‘s been certified here in Florida.  So it was kind of a moot point.  And the same machines that Congressman Wexler was all hot and bothered about were the ones that gave him a resounding victory two years ago and the same ones that were use in the 2002 election for governor as well and there wasn‘t the same concerns.  I don‘t know.  Maybe it‘s political.

ABRAMS:  What do you make of all the early voting?

J. BUSH:  I think it‘s great.  Another reform that we added that, you know, has helped provide access to the polls and provide a convenience.  And we‘re going to have a high voter turnout here and I think that‘s wonderful.  We have more registered Republicans and Democrats in our state over the last four years.  A high turnout will help the president contrary to conventional wisdom and I believe he will be reelected because we have a lot of people voting.

ABRAMS:  What about the fact that these early votes appear to be, based on the exit polls, more to Kerry than to President Bush?  Expected?

J. BUSH:  I don‘t know—I don‘t think there‘s been real true exit polls.  It was expected, but if you add up the absentee ballots and the early voting, where people go directly to these libraries where the polls have been set up for the last two weeks, the president starts tomorrow morning at 7:00 when the precincts—all the precincts open up with a lead and he‘ll keep it.  And there‘ll be an election.  He will—the vote wills be counted.  I believe he‘ll win and we won‘t have, you know, scores or hundreds of lawyers showing up...

ABRAMS:  That‘s all I was going ask you about.  Governor Bush, I‘m not going have to come to Florida, right?  That‘s all I want to know.

(LAUGHTER)

J. BUSH:  I don‘t think you are.

ABRAMS:  All right.  Governor...

J. BUSH:  Although it‘s a beautiful time to come...

ABRAMS:  Yes.  Look, I had a nice time...

J. BUSH:  ... and we want you to come visit.

ABRAMS:  I enjoyed meeting you at the game, the big games coming around, FSU...

J. BUSH:  Yes, the Florida-FSU game.

ABRAMS:  Yes.  That‘s right.  All right.  Governor, thanks a lot for coming on the program.  Appreciate it.

J. BUSH:  Take care.

ABRAMS:  Coming up—in 2000, Al Gore won his state by a mere 366 votes.  New Mexico Governor Bill Richardson joins me next.  It is a swing state and there could be battles there as well.

And with just hours to go until the polls open—legal battles just continuing in Ohio.  Attorneys for the state Republican Party have gone to an appeals court to challenge a big ruling from today.

Plus—the prosecution presents its closing argument in the Scott Peterson trial.  Have they made up for the early problems that plagued them?  Our legal team is inside the courtroom.

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, New Mexico Governor Bill Richardson tell us whether his swing state, which was decided by fewer than 400 votes last time will be able to survive new voting rules without lawsuits.

(COMMERCIAL BREAK)

ABRAMS:  In the race to see which state could be the new—quote—

“Florida in the 2004 election, New Mexico may not be at the top of the list.  Remember, it took just 366 voters to tip the state to Vice President Gore in 2000.  With this election nationwide seeming tighter than that one, winning or losing New Mexico could make the difference.  So, the legal issue is there that might push the election into the courts—voter identification.

New Mexico‘s Supreme Court ruled last month that only first time voters who registered by mail will be required to show I.D. at polling places.  Republican lawyers had said all new voters should be required to show I.D. to reduce the chances of voter fraud.  Electronic voting—critics say New Mexico‘s machines are insecure.  Despite doubts, the machines lost some 700 votes in the 2000 election as the story in “The Washington Post” claimed.  That‘s been denied.

And with tens of thousands of new voters registered for this election, Republican attorneys already suggesting that some Democratic voters have registered twice.  My next guest can answer questions about those issues and a possible role in the future Kerry administration if the Democrats win.

Joining me now, Democratic Governor Bill Richardson of New Mexico. 

Governor, good to see you.  Thanks for coming on.  All right.

GOV. BILL RICHARDSON (D), NEW MEXICO:  Thank you, Dan.

ABRAMS:  All right.  So we‘ve laid out a lot of the possible problems here.  It means to me now the New Mexico Supreme Court has really sort of ruled out one of the ones that would come up and that is about sort of what I.D. they need.  What about these electronic voting machines and this allegation that in 2000 there were literally more votes lost in those electronic machines in New Mexico that made the difference in the election?

RICHARDSON:  Well, that‘s been denied by our election authorities, by our county clerks, by our secretary of state.  Now I know “The Washington Post” is very reputable and all of that, but I don‘t think that happened here.  New Mexico has not had a history of voter fraud.  We‘ve had a history of not having timely results.  No question about it.

There even been some instances where our biggest county, Bernalillo County, did not have modern machines, so there was problems.  But I do believe that we‘re ready to handle 140,000 newly registered voters since June.  And the early voting -- 40 percent of our electorate, Dan, has already voted as of today.  So I think we‘re in good shape.  It‘s going be very close here.

It‘s going to be within one percent.  I say it goes to Senator Kerry narrowly.  But there will be challenges by the Republicans in some precincts.  They always do that.  Both sides have their attorneys ready.  But I don‘t think you‘ll see New Mexico as one of those states where it‘s going to be prolonged and bitter.  I think you will see us having a narrow victory for Senator Kerry.

ABRAMS:  Most of the voting is going be by electronic—these new voting machines?

RICHARDSON:  Yes, but there‘s also—you know, we have Native American reservations—Indian reservations, where it isn‘t.  The Navajo Nation, for instance, by the way, is going have a holiday for all Navajos to vote and there are 10,000 more that will be voting and Navajos in the past have not voted.  So you have like most of the country in New Mexico, electronic voting.

You‘ve got other types of paper balloting.  Some precincts will be later than others.  But generally, I think you‘re going have a pretty efficient election here.

ABRAMS:  Is this going end up in the courts?  I mean that‘s the big question, I think, so many people are—and it‘s starting to feel like, I mean with the polls getting closer and closer, it‘s just starting to feel like it‘s almost inevitable.

RICHARDSON:  Well, I just learned like you did about Ohio where there‘s not going to be any challenges allowed.  I think I‘m encouraged by that decision because what you don‘t want is having voters intimidated.  Look, there will be challenges in some states.  Some states are going to go down to the wire.  Provisional ballots will be challenged.

Will we have the Supreme Court intervene the way it did four years ago?  I don‘t believe so.  I think if anything, Dan, we should talk about the good things about this election.  Both candidates have gotten their good messages out.  There‘s going to be, I think, a record turnout of voters substantially more than the 50 percent than we generally have in our presidential elections of eligible voters.

And thirdly, I think the enthusiasm, especially among the young people, that have never voted before, increased minorities—I think you‘re going see some interesting votes in the West where I think Senator Kerry will do better than expected shattering the traditional Republican base in western states.  So, this is going to be the most interesting election we‘ve ever had.  Close...

ABRAMS:  Yes.

RICHARDSON:  ... yes.  Will it be contested in some areas?  Yes.

ABRAMS:  Do we have sort of as the public a right be upset that sort of there‘s not a unified system out there so that in 2004, the issue of lawyers, judges, and the election is not even in our dialogue?

RICHARDSON:  Well, the answer is yes.  We should be upset.  But the problem is it‘s a political issue.  States and county clerks and county election officials don‘t want to give up the power to the federal government to a Congress that probably would mandate certain types of machines.  That‘s as simple as that.

I do believe it makes sense to have as many uniform standards.  And the America Vote Act that passed after the last presidential election was basically a step in the right direction, but it—don‘t vary meagerly with what the basic problems are—standardization of voting and the funding in that was almost nonexistent.  So these county clerks, these election officials...

ABRAMS:  Yes.

RICHARDSON:  ... locally were not able to invest in new technology and new machines.

ABRAMS:  Governor, very quickly—you take a position in the Kerry administration?

RICHARDSON:  No.  I‘m happy as governor of New Mexico...

ABRAMS:  So, you‘re going to say no, no matter what they offer you? 

Secretary of State—no, no, no...

RICHARDSON:  I‘m not interested.  I‘m happy where I am being a governor of a great state.  I‘ve got a lot more to do here as governor.

ABRAMS:  Governor, thanks a lot for taking the time.  I really appreciate it.

RICHARDSON:  Thank you.

ABRAMS:  Coming up—more legal wrangling in the battleground state of Ohio.  Many say it could be the state that determines the election.  Two federal judges issue rulings that have sent the state‘s Republicans to the appeals court today.  Their attorney joins us.

And prosecutors in the Scott Peterson case told jurors Tuesday he killed his pregnant wife to maintain a double life—his free wheeling bachelor alter ego.  How does that sit with the jurors?  We‘ll talk about what happened inside with insiders coming up.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  This year the national election legal spotlight could shine on a new state—Ohio.  Some argue it‘s the most important battleground state of the bunch.  In fact, no Republican president has ever won the White House without winning Ohio and only two Democratic presidents in the last 100 years have been elected without it.

An Ohio poll released just today by the University of Cincinnati shows

just how close the race is, with the president leading Kerry 50.1 percent -

·         there it is—to 49.2 percent.  But on this last day of campaigning, the Republicans have taken a hit, a legal hit.

Two different federal judges have ruled the challenges from either party won‘t be allowed in the 88 counties in Ohio—people who would be questioning voter eligibility inside the polling places or precincts.  The Ohio Republican Party immediately went to the appeals court saying it is allowed.  It‘s part of Ohio law.

And this late this afternoon, a third federal judge ruled even if they were allowed into the polls, poll watchers could not use a list of more than 35,000 names to challenge voters.  Joining me now is Mark Weaver, legal council for the Ohio Republican Party and also an election law attorney and attorney Peter Rubin of Washington, D.C.  He served as counsel on Vice President Gore‘s campaign during the 2000 election recount.  He‘s also a constitutional law professor.

Thanks very much to both for you coming on the program.  All right.  Mr. Weaver, it sounds like the judges have really sort of boxed the Republicans in.  I mean “A”, they‘re not going to allowed into the polling places or the precincts as they had hoped.  And “B”, they won‘t be able to use the list that they have compiled.

MARK WEAVER, GENERAL COUNSEL FOR OHIO GOP:  Well Dan, the game is not over yet.  We‘re at the Sixth Circuit Court of Appeals as we speak.  In the last two weeks, the Sixth Circuit has overturned district judges who‘ve made erroneous decisions like the ones we saw today...

ABRAMS:  On provisional ballots—on the issue of provisional ballots, for example.

WEAVER:  Well that‘s right.

ABRAMS:  Right.

WEAVER:  And Ohio law is pretty clear—it‘s been on the books for years.  Observers are allowed in the polling places.  Sunshine is the best disinfectant.  The Democrats have been filing lawsuits trying to keep observers out.  It makes you wonder what they‘re up to and what they want to do behind closed doors.

ABRAMS:  Well let‘s find out.  Mr. Rubin, it is in the law.  I mean I‘ve read the law and the law does say that you are allowed to have them there.

PETER RUBIN, GEORGETOWN UNIVERSITY LAW PROFESSOR:  Yes, Dan, but they‘ve never been used before.  And the judge‘s opinions, today, and these are two federal district judges, one appointed by President Clinton and one appointed by President Bush and they‘ve agreed that it serves no purpose to have these challengers, additional challengers inside the polling place that the Republicans want to put there.  And that all it will serve to do is to slow down the voting process and intimidate voters.  And this is—this seems to be a part of Republican strategy rather than turning out voters to try to suppress the vote...

ABRAMS:  But see I agree with you as a practical matter.  Look, these poll watchers—by having partisan poll watchers inside is a bad idea.  I agree with you.  The problem is you say that these judges are saying it serves no purpose.  Why do these judges get to decide it?  I mean the law is pretty clear.

RUBIN:  Well, there‘s a Constitution in the United States still Dan...

ABRAMS:  And what constitutional issue does it bring up?

RUBIN:  This raises the question about the right to vote, and restrictions on the right to vote include a purpose list law that permits people to challenge eligibility inside a voting booth with no standards when there are already four election judges inside that...

ABRAMS:  But that just sounds like...

(CROSSTALK)

ABRAMS:  ... that sounds like they‘re micromanaging though.  It sounds like what they‘re doing is getting in and saying well they should or shouldn‘t be there, they should or shouldn‘t be there—it does sound like they‘re doing exactly what judges generally aren‘t supposed to do absent serious constitutional violations.

RUBIN:  Well I think it is a serious constitutional violation to intimidate voters, Dan.  And these two judges agreed.  I think their opinions are well reasoned.  And the Supreme Court has always been very jealous about protecting the right to vote of voters.  I think that the point they made, both of these judges made was that the election judges, four of whom are inside the polling place—two from each party, will be adequate to assure that no voter fraud occurs.

ABRAMS:  Mr. Weaver, as a practical matter, isn‘t he right?  I mean that you really don‘t need additional people in there.

WEAVER:  Well if he‘d like to move to Ohio and run for the general assembly and pass Ohio laws, he can do that.  Here in Ohio, that‘s the law.  What he doesn‘t tell you is this is not some Republican strategy.  The Democrats filed more than 2,000 challengers to be in polling places all across Ohio.  So maybe he thinks the Democrats are trying to intimidate the voters as well.

RUBIN:  Well Dan...

WEAVER:  It‘s ridiculous.

RUBIN:  Dan, the truth, of course, is that the Republicans put challenges in place, 3,600 of them in Ohio.  The Democratic challengers are there only to ensure that the Republican challengers don‘t stop lawful voters, particularly African American voters from voting.

ABRAMS:  Mr. Rubin...

(CROSSTALK)

ABRAMS:  ... do you you‘re going to win an appeal—do you think they‘re going to win an appeal on this one?

RUBIN:  Well the law seems pretty clear as these two district judges‘ opinions makes clear.  I hope that the Sixth Circuit will not reverse them or enter a say...

ABRAMS:  All right.

RUBIN:  If they do, I think you can expect further appeal to Justice John Paul Stevens, the circuit justice for the Sixth Circuit...

ABRAMS:  We‘re running out of time.  Mr. Weaver, final word, final 10 seconds.

WEAVER:  Watch for the Sixth Circuit to overturn these opinions.  Ohio law should stand.  Let the sunshine in.  The Democrats want to steal this election.  We‘re not going let them.

ABRAMS:  All right, Mark Weaver, Peter Rubin, good guests.  Thanks a lot.  Appreciate you coming on the program.

WEAVER:  Thank you.

RUBIN:  Thank you.

ABRAMS:  A reminder—we‘re going be here all night tomorrow.  I‘m coming in a little bit late because I‘m going to be here all night.  It‘s part of MSNBC‘s election coverage from Democracy Plaza.  If there are any legal issues, guess what—I‘m going be here to cover it.

Also, if you‘re having any trouble voting, you can get help by dialing NBC News voter alert line.  The number is 1-866-MY-VOTE1, 1-866-MY-VOTE1.  And you can now track calls made to the voter alert line by state and congressional district.  Go to the “Making Your Vote Count” section at abramsreport.msnbc.com.

Coming up, five months to the day since the prosecution presented its opening statement to the day.  Their closing argument came today—Scott Peterson, closing arguments, can you believe it?  We get a live report from the courthouse.

And a lot of you writing in about my mock closing arguments for both sides in the Peterson case.  And based on the prosecution today, maybe they watched.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, prosecutors have just finished their closing arguments in the Scott Peterson trial.  The juror wills get the case this week.  We find out what they‘ve been saying from four people who have been in court all day, but first the headlines.

(NEWS BREAK)

(BEGIN VIDEO CLIP)

LACI PETERSON, SCOTT PETERSON‘S WIFE:  Who is that going to?

SCOTT PETERSON, ON TRIAL FOR MURDER:  I don‘t know.

L. PETERSON:  He‘s going to find me a husband.

S. PETERSON:  I was going to send it to Sama and make him envious.

L. PETERSON:  OK—so?

S. PETERSON:  OK, I was holding both you guys.  Now wave to the camera now.

UNIDENTIFIED FEMALE:  (UNINTELLIGIBLE)

S. PETERSON:  Come on, both you guys wave to the camera now.

UNIDENTIFIED FEMALE:  (UNINTELLIGIBLE)

L. PETERSON:  Hi.

(END VIDEO CLIP)

ABRAMS:  That video is how prosecutor Rick Distaso grabbed jurors‘ attention at the beginning of his closing argument today.  He painted a picture of Scott Peterson—the wannabe bachelor living a double life who was stunned by the amount of attention his wife‘s murder suddenly garnered.  For the first time, Distaso described in detail how he thinks Scott Peterson murdered his pregnant wife and later got rid of the body.  He took a similar approach to the closing that I did last week, even focusing on the same set of tools that I used, which are pivotal to the case.

KCRA reporter Edie Lambert joins us now.  Edie lay it out for us.

EDIE LAMBERT, KCRA REPORTER:  Well first of all, Dan, we have seen a different Rick Distaso.  The lead prosecutor today has been passionate and very focused as he tried to convince the jury that Scott Peterson is the only person who could have killed his pregnant wife.

As you mentioned, he began with a motion—seeing the victim in her own kitchen as a smiling, lovely person very much alive, unaware of what was ahead.  The next image he showed is an image that we‘ve seen many times -- her remains being recovered at the edge of the San Francisco Bay.  One juror wiped away a tear at that point.

And I can tell you that led straight into what he obviously considered his strongest evidence.  It‘s the first thing he talked about—the bodies recovered close to Scott‘s alibi.  He then went through his theory that Laci was suffocated or strangled.  That Scott put her in his truck in a tarp under market umbrellas, moved her then to his boat and—quote—

“easily dumped her body into the bay.”

Distaso spent a lot of time on contrast, talking about Scott‘s private life versus his public life.  We can show you two examples.  First of all, a photo of Laci alone dressed up for Christmas at a Christmas party thinking her husband was away on business.  He contrasted that with a couple of images including Scott the same night on a date with Amber Frey.

Another image from New Year‘s Eve, Laci‘s mom, Sharon Rocha, looking grief-stricken at a vigil and Scott smiling and, of course, the jury was told just 45 minutes before he had been talking to Amber saying he was in Europe and romancing her.  And of course all of this leads to motive.  Distaso said Amber Frey was not the motive.  She was just part of the motion.

The real motive in this case, freedom.  Scott having a baby on the way, not really wanting the lifestyle change that that would lead to, talking about Scott wanting to be a free wheeling bachelor.  And he went through some strong themes through his argument saying that Laci Peterson was dead to Scott long before he actually killed her.

He wrapped up his closing argument just a couple of minutes ago, Dan, beginning—the same way five months ago as he did today saying this is a common sense case.  Back to you.

ABRAMS:  All right, Edie Lambert.  As always, thanks a lot.

“My Take”—based on the transcripts I have read it seems the prosecutors have finally come to life, doing what they needed to do from the beginning and this could mean conviction for Scott Peterson.  Joining me now, three people who were in court all day, former San Mateo County prosecutor Dean Johnson, criminal defense attorney Daniel Horowitz and Amber Frey‘s attorney Gloria Allred.

All right, before I start getting into the specifics, let me just get an overall sense from each of you because I think all of us at one time or another—maybe not Gloria  -- but I know Dean and I know Daniel and almost all the other guests on this program have been critical of these prosecutors at one time or the other for the way that they‘ve pursued this case.

Dean Johnson, you first.  Did Rick Distaso do what he needed to do today?

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Rick Distaso did everything he needed to do today.  He got the jury‘s tears flowing.  He pointed to Scott Peterson and said this man is a murderer.  He connected the dots and he gave us for the first time a coherent theory about the motive for this killing.  This was a great clutch performance by Rick Distaso.

ABRAMS:  Gloria, what do you make of it?

GLORIA ALLRED, AMBER FREY‘S ATTORNEY:  Five-star performance.  It was outstanding.  He did everything he needed to do, as was just said.  In addition, what he did was he really related to the jury, Dan.  He was right over there.  He was talking with them constantly.

He was showing photos of Laci by herself, Scott and Amber together.  He was tying it all together.  He was explaining the motive.  You know, talking about Scott‘s own words.  And, of course, Scott was his own worse witness against himself, as we‘ve said before...

ABRAMS:  Yes.

ALLRED:  ... but also in today‘s courtroom where they played the tapes of Scott from interviews, from Amber, from the wiretaps and he brought it all together.

ABRAMS:  All right, we‘ll get to all that in a minute.  Very quickly, Daniel Horowitz, overview.

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  I say five for technical performance but only three for actual artistic performance, Dan.  He was a man going through the motions of being a talented attorney.  He hit all of the important points.  But emotionally, he left me cold.  And this afternoon, he made some major tactical mistakes.  He attacked Jackie Peterson personally and I think that was a big mistake.

ABRAMS:  Why—I mean I can understand it being a mistake to attack the alleged victim‘s mother.  But when you have the defendant‘s mother take the witness stand and the prosecutors  -- you know, look the prosecutors believe she‘s lying.  You know, why—is that really risky?  I mean do they have any choice but to do it?

HOROWITZ:  It was a cheap shot.  He should have done it on cross-examination.  If he was strong enough to do it then, it would have been fair game.  She can‘t answer back.  She can‘t respond.

ABRAMS:  Yes.

HOROWITZ:  She‘s sitting there looking at her son and he takes a cheap shot at her saying...

ABRAMS:  All right...

HOROWITZ:  ... well she‘s not telling you the truth about walking with Laci.

ABRAMS:  This is from the state‘s closing argument today.  Quote—

“the only person that we know without any doubt that was in the exact location and the exact spot where Laci and Conner washed ashore is sitting right there.  That alone is proof beyond a reasonable doubt in this case.  You can take that fact to the bank and you can convict this man of murder.”

Dean Johnson, as a legal matter, do you think he‘s right that that alone is enough to convict?

JOHNSON:  I think that‘s an overstatement, but the concept is absolutely correct.  This jury has to judge this matter on the evidence.  The evidence shows that there is one person who was at that place at the time that Laci went missing, a stone‘s throw from where her bodies washed up.  You take that with the fact that this also happens to be the last person to see her alive and the only person who has lied and lied...

ABRAMS:  Yes.

JOHNSON:  ... and lied and lied to his friends, his neighbors and the police about this case—that‘s enough.

ABRAMS:  Gloria, let me read to you what they laid out as essentially the motive here.

Quote—“He didn‘t want to be tied to this kid the rest of his life.  He didn‘t want to be tied to Laci for the rest of his life, so he killed her.  There‘s no big secret there.  Amber Frey represented to him freedom.  Freedom is what he wanted.”  He went on.  “Laci Peterson was dead to Scott Peterson a long time before he killed her.  The reason he killed Laci Peterson was Conner Peterson was on the way.  Things were going to change.  No more of this running around, living this double life thing.  He wants to live the rich, successful, free-wheeling bachelor life.  He can‘t do that when he‘s paying child support, alimony and everything else.”

Gloria, this seems to be the right tone to not say it‘s all about Amber Frey.

ALLRED:  Well, I think it‘s the right tone to paint the big picture, absolutely.  And he went on to quote Scott basically talking about Jack Kerouac on the road and then Scott saying basically that he‘s never had a life without responsibility, suggesting that now he has one and now that Laci and Conner have gone.  I think that does make sense, particularly in light of Scott‘s statement.  Also to Amber—that if he were with Amber, he wouldn‘t need to have a biological child.

ABRAMS:  Yes.

ALLRED:  All of that does make sense.

ABRAMS:  Let me take a quick break here.  When we come back, I think the prosecutors focus on a very important issue and that is why his fishing trip sounds so fishy.  And I think the prosecutors did a very nice job with that.  We‘re going to talk about that in a minute.  And you weigh in on how I did with my mock closing argument for the defense.  Your e-mails coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

RICK DISTASO, PROSECUTOR, SCOTT PETERSON TRIAL:  It‘s too cold to go golfing here in Modesto, so I‘m going get in my car in the late morning hours when I have something to do later on in the day, I‘m going to drive then over an hour and a half to the San Francisco Bay, I‘m going to launch my small aluminum boat in the storm, I‘m going drive out and fish for less than one hour.

(END VIDEO CLIP)

That was prosecutor Rick Distaso in the preliminary hearing and he‘s made a similar argument here in the closing argument by the prosecution. 

Want to tell you—go right to exactly what he said today.  The prosecutor

is coming to life and I think this is one of the most important issues that

·         the most important point that they made.  And that is that Scott‘s alibi about having gone fishing doesn‘t make sense.

Let‘s go to number two here.  Then on December 20, he bought his first salt water fishing pole.  Here‘s what Distaso said about it.  It‘s not at all set up for any of the things he was supposedly fishing for that morning.  He bought it as a prop.  He didn‘t go fish for sturgeon that day.  I can tell you that.  The lures, they‘re not even open.  I don‘t anyone who has caught a fish with a lure that‘s still in the pack.

I don‘t care how upset you are—and this about him saying to some neighbors that he‘d gone golfing and not fishing that day—I don‘t care how upset you are.  Nobody forgets that you just got home from fishing at the Berkley Marina and that was it.  He screwed it up—screwed up his alibi.

Daniel Horowitz, I think this could be the final blow to Scott Peterson, this particular argument.

HOROWITZ:  Well, Dan, that was a very good argument.  And in fact, when Distaso talked about the neighbors being told after he was returning from fishing, that he was golfing, Scott was seen to mutter “bull-blank” in the courtroom.  I think...

ABRAMS:  Well that‘s helpful.

(CROSSTALK)

ABRAMS:  He doesn‘t want to testify, but he wants to mutter at the defense table.  OK.  Yes, go ahead.

HOROWITZ:  Exactly.  The fishing argument was a little bit overdone.  Because Distaso said he used the fishing lures and poles as a prop to cover up what he was really doing.  But if it was a prop, he would have done a better job and gotten the right gear...

ABRAMS:  Well that‘s what they always say.  That‘s what every defenses

·         my client couldn‘t have been so dumb as to “blank” and the number of times I‘ve seen dumb defendants is amazing.  All right.  Let me move on...

HOROWITZ:  But this jury hasn‘t Dan.  This is their first time.  But otherwise, what you said is completely correct.  The way he tore apart that whole fishing trip and made it look absurd was the best part of his argument.

ABRAMS:  On the other hand, Gloria, I‘m not so convinced by this particular tape and this argument made by the prosecutor.  Again, let‘s listen.

(AUDIO GAP)

ABRAMS:  That‘s the wrong tape.  I‘m going go back to the tape in a

minute.  Let me read you—if we can go to number 14 here.  This is what -

·         do we have the tape?  No, OK.  It‘s basically Scott‘s wiretap phone call where he supposedly is whistling.  I‘m going to come back to that in a minute.  Let me go—we have it?  All right, let‘s play it.  Go ahead.

(BEGIN AUDIOTAPE)

RECORDER:  Your call has been forwarded...

(BEEPS)

RECORDER:  You have one unheard message.  First message.

SHARON ROCHA, LACI PETERSON‘S MOTHER:  Hi Scott.  This is mom.  It‘s about quarter to 1:00.  Just wanted you to know I just got a call from Ron Cloward.  He‘s at the marina and it was a boat anchor.  Of course, we knew it wasn‘t Laci, but I just wanted you to know.

(WHISTLE)

ROCHA:  I‘m going to call your house in case you don‘t get this message first.  Bye.

RECORDER:  Message erased.

(END AUDIOTAPE)

ABRAMS:  That was when they were still in good terms.  Here‘s what prosecutor Rick Distaso said.  Wish I could whistle like that, but I can‘t.  Listen to Sharon.  She‘s excited.  She‘s relieved.  She‘s still clinging on to the hope that Laci‘s coming home and all we get from Scott Peterson is (UNINTELLIGIBLE) almost got me.

You know, Gloria, I don‘t know.  That whistle to me is a little ambiguous.  Is it that big a deal?

ALLRED:  You know, I think it is capable of more than one meaning, Dan.  But again, everything has to be taken in context.  And everything has to be taken in—you know, looking at the big picture...

ABRAMS:  Yes.

ALLRED:  ... this alone, no, wouldn‘t do it.  But this together with everything else I think could do it.

ABRAMS:  All right.  Bravo to Rick Distaso and a good closing arguments.  I may say the same thing about Mark Geragos tomorrow.  I will listen, but I‘ll be covering the election.  Dean Johnson, Daniel Horowitz, Gloria Allred, thanks.

Coming up, you rate my closing arguments for the Peterson defense and prosecution.  We‘re all hoping—and we‘re all hoping tomorrow‘s voting won‘t end up like last time in the courts.  But I say not enough has been done to stop another election from being decided by lawyers and judges.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, after the 2000 election ended up in the courts, you would think we wouldn‘t have it happen again, but it might.  I say it‘s time to get rid of the Electoral College altogether.  It‘s my “Closing Argument”.  

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why it‘s time to change the way we vote.  Why we should never have another election or one of the primary questions asked is will the lawyers and judges determine the outcome of the election?  Our current hodgepodge of voting procedures and rules is strikingly antiquated, inconsistent, unreliable.  We all depend on technology for so much in our lives, and for some reason, our voting systems are still so well, 1970‘s.  You would have thought that after the 2000 disaster, one of our national priorities would have been to create a unified system that works.

The Help America Vote Act of 2002 did not help nearly enough.  U.S.  Supreme Court in Bush v. Gore essentially said since there‘s no single system in place to recount votes in the state of Florida, the recounts must stop.  But that problem could occur again and it‘s nothing compared to the sometime confusing and conflicting ballots, registration requirements and rules.  And often, partisan secretaries of state interpret the laws.  That just makes the problem worse.  Most states have varying voting machinery—levers, punch cards, electronic, depending on the district, each with its own problems.  And that‘s just within each state.  State to state, you have even greater discrepancies.  Not just different voting systems, but sometimes even different methods of counting the votes.

Two states, Maine and Nebraska, don‘t allocate their electoral votes strictly based on a winner take all system.  Colorado voters will vote on a measure this election to eliminate winner take all altogether.  Meaning that some people‘s votes mean more than others.  It‘s time to have one effective system and it‘s time to get rid of the Electoral College.  Whether it was created to empower smaller states or because the framers wanted to create a system where the state legislatures had more control, continuing to use it would be like continuing to allow only white men to vote or to arm our militias with muskets.  Some foundations of our democracy are foundations that need repair.  Others are just old.

The most obvious problem, it eliminates the one-person one vote and allows someone to be elected who loses the popular vote.  It also doesn‘t account for third party candidates.  Someone like Ross Perot, who in 1992, won 19 percent of the vote, didn‘t receive a single electoral vote.  In the electoral system, the winner is required to get 270 electoral votes.  Meaning, a serious third party candidate in play, no candidate may win the necessary amount.  You know what happens?

It goes to the House of Representatives to choose our president.  And regardless, the so-called electors aren‘t even required to vote for the candidates they‘re supposed to be representing.  It is hard to have faith in a voting system that feels so unpredictable and unreliable.  Let‘s hope for a landslide or you may be seeing a lot of me in the next few weeks.  There has got to be a way to avoid that next time around. 

I‘ve had my say, now it‘s time for “Your Rebuttal”.  On Friday I gave my very summarized mock closing argument for the defense.  I had taken on the prosecution on Thursday and by the way, you can read both on our Web site.

Susan Scardilli in New Jersey fears the defense team was watching.  “I fear the he, Mark Geragos, or his people were watching and you know they were handed more than a few gems from you.  Chill Dan.  They don‘t need any help.”

From Mississippi, Amy Brooks.  “I hope that the prosecution was watching your arguments and that Geragos wasn‘t.  Great job.”  Thanks Amy.

Karen Sexton in South Carolina.  “Your mock closing arguments for the prosecution and the defense were brilliant.  Bravo.  I wouldn‘t add or delete a single word from either.  You should be practicing law.  Anyone can host a TV show.”  Thanks Karen.

From New York, Anne Wickstrom.  “I just came off 10 days of jury duty and wish the closings in my case were as good as yours.”  Thank you Anne.

Lois Servaas writes, “I used to be a reporter covering the court beat, so I‘ve heard a lot of closing arguments.  Dan‘s was absolutely superb.”  I appreciate it Lois.

Pat in Minnesota.  “After hearing your closing for the defense I say Peterson has the wrong attorney.”

But from Kansas, Lael Finch.  “Peterson not guilty?  I thought you were an intelligent guy.  He‘s guilty as hell Mr. Abrams.”

Lael, I guess you didn‘t get mock concept.  I was taking on the role of the lawyer for each side.

Mark Luedtke, “I think you side with the prosecution and that bias led you to produce a very good prosecution closing and a subpar defense closing.”

Also last week, one of my guests compared Bill O‘Reilly settlement in a sexual harassment case to Michael Jackson‘s past settlement.  I said there‘s no comparison and that while I think anyone who pays many million of dollars probably did something close to what the accuser claims, that O‘Reilly has never denied he said the things attributed to him while Jackson insists it‘s all lies.  I also said there‘s no comparison between being accused of sexually molesting a child and dirty phone calls.

Barbara Berger in Illinois is steamed.  “The fact that you can make a comment like this about Michael Jackson demonstrates that you have formed an opinion without the benefit of a trial.”

Yes, Barbara I have.  Not about this Michael Jackson case, but I believe when you pay $20 million plus, it‘s hard to still claim it‘s all lies.  Sorry.

Finally, on Friday, Osama bin Laden released a new tape for the first time in three years.  In addition to talking about the impact the message could have on Tuesday‘s election, I said his comments claiming Israeli action led to the creation of al Qaeda was just a lie, just an effort to provide a new reason to garner support for his cause.

Eric Kelley in Florida.  “Why is it that you and others in the American media are so incapable of objectively considering the message of Osama bin Laden?  He is a criminal, but is it not possible there is a reason for his actions?  American cannot win a war on terror until it fairly considers why the war is happening in the first place.  Honest debate on why America has troops in Saudi Arabia, why America is so biased towards Israel.”

Eric, honest debate on the issues that Osama bin Laden wants to us debate spells victory for Osama bin Laden and al Qaeda.  I will not play by his rules.  The only reason I want to know why he does anything is if it will help us catch him.  There‘s no rational reasoning behind why these monsters do what they do.  They want everyone to take on an Islamic government.

Steve Donahue from Maryland.  “From what I‘ve seen you‘ve been the only one to report the flaws or lies in bin Laden‘s timeline concerning Israel and Lebanon as a rationale for 9/11.”

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.  He‘s live in Democracy Plaza just hours before the polls open.  And a reminder, I am going to be here all night tomorrow night just in case the law takes over.

END   

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