updated 11/4/2004 10:14:30 AM ET 2004-11-04T15:14:30

Guest: David Boies, John Yoo, Mark Weaver, Edward Foley, Dean Johnson, Gloria Allred, John Burris

DAN ABRAMS, HOST:  Coming up, is it possible the lawyers helped keep the election out of the courts? 

(BEGIN VIDEOTAPE)

SEN. JOHN KERRY (D), PRESIDENTIAL CANDIDATE:  But it is now clear that even when all the provisional ballots are counted, which they will be, there won‘t be enough outstanding votes for us to be able to win Ohio. 

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  America has spoken and I‘m humbled by the trust and the confidence of my fellow citizens. 

ABRAMS (voice-over):  It did not end up in the courts.  And after all the criticism of the election lawyers with both sides trying to distance themselves from their legal teams, might the lawyers deserve the credit for keeping it out of court? 

And when it comes to law and justice, what will President Bush‘s second term look like?  Will Attorney General Ashcroft leave?  And what about the Supreme Court? 

Plus, the jurors in the Scott Peterson case are deliberating his fate.  The defense wrapped up its closing argument today and the prosecution got the final word.  Our legal team is in the courtroom. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket, at this time four years ago, we were starting a six-week legal odyssey as lawyers both sides too their fight for Florida‘s electoral votes through the court system and right up to the U.S. Supreme Court.  But today we can say that despite fears that thousands of partisan lawyers at polling places would somehow interfere with the process and delay the election results, they didn‘t.  Despite questions about the outcome in Ohio, today John Kerry conceded and President Bush celebrated. 

(BEGIN VIDEO CLIP)

BUSH:  I will do all I can do to deserve your trust.  A new term is a new opportunity to reach out to the whole nation.  We have one country, one Constitution, and one future that binds us.  And when we come together and work together, there is no limit to the greatness of America. 

(APPLAUSE)

KERRY:  The outcome should be decided by voters not a protracted legal process.  I would not give up this fight if there was a chance that we would prevail.  But it is now clear that even when all the provisional ballots are counted, which they will be, there won‘t be enough outstanding votes for us to be able to win Ohio. 

(END VIDEO CLIP)

ABRAMS:  So now the question—what changes can we expect in the legal landscape in Washington?  For example, will Attorney General John Ashcroft be asked to stay on for a second term?  Will he?  Will the Patriot Act, which Ashcroft and the president both felt essential to the war on terror be renewed?  Will Chief Justice William Rehnquist step down after indications the cancer he is suffering from could be severe?  And there will be—and will there be a concerted drive for a constitutional amendment barring same sex marriages, a big issue for many this year. 

Joining me to look at what‘s ahead with those issues and (UNINTELLIGIBLE) take a quick look back at the election, Dave Boies, Vice President Al Gore‘s legal counsel in the 2000 recount battle and author of “Courting Justice:  A Lawyer‘s Case Book From The Yankees versus Major League Baseball” (UNINTELLIGIBLE) Bush - sorry it‘s been a long night.  And John Woo, a constitutional law professor at the University of California Berkeley, a former Supreme Court clerk for Clarence Thomas and former general counsel to the Senate Judiciary Committee. 

All right.  Gentlemen, thank you both very much for coming on.  Appreciate it.  David, let me start with you.  If you had been advising the Democrats in the wake of 2000, with the anger that many people had about the fact that Al Gore conceded, would you have said you know what?  Let‘s just wait until those provisional ballots are counted or would you have told him to throw in the towel? 

DAVE BOIES, GORE 2000 RECOUNT ATTORNEY:  You mean this year? 

ABRAMS:  This year. 

BOIES:  Well, I think that Senator Kerry made the right decision because I think that if you look at the number of provisional ballots and you look at the margin and you look at the registrations that are there, I think the right decision is to have all those counted, but I think he realistically faced what the result was, which was those are not going to change the result in Ohio. 

ABRAMS:  And John Yoo, were you surprised that the Kerry team threw in the towel? 

JOHN YOO, UC BERKELEY LAW SCHOOL:  I think he did the right thing.  He did the statesman like thing.  Because as David said, statistically he couldn‘t win.  You know, of course, he could have pursued more legal options and asked for litigation and sent more lawyers down, but I think he really realized he had a choice whether he wanted to plunge the country back into another 2000 controversy or to save the country from it.  I think he made the right choice in that case.

ABRAMS:  All right.  Professor Yoo look, this is an administration you know well.  This is an administration you have worked with closely in the past.  Do you think that John Ashcroft will be the attorney general for the next four years? 

YOO:  I don‘t think so.  I don‘t think he, for example, is like Janet Reno who did serve for the full two terms.  I think one thing to keep in mind is that the war on terrorism really increased the pace and tempo of the operations of the government.  So even though Mr. Ashcroft has been attorney general for four years, I bet he feels like it‘s been 12 years.  So I just don‘t see him...

ABRAMS:  Will it be...

YOO:  ... wanting to stay.

ABRAMS:  ... is that the issue, I mean that he doesn‘t want to stay or will he not be asked to come back? 

YOO:  Well I think in part he himself—you blame I wouldn‘t blame him if he was physically tired.  It‘s been a really wearing four years, I think particularly on him.  He‘s been I think criticized sometimes unduly by the media and by Congress.  I think he‘s taken a lot of heat for the president and the administration on the war on terrorism. 

So, I wouldn‘t blame him if he wanted to take a break.  And on the other hand, you have an administration that as the president was just saying might want to move in a new direction.  He might have the opportunity, for example, to appoint the first Hispanic attorney general or the first black attorney general.  So, you know, the president may want to make a different choice as well as many do at this—at the beginning of a second term. 

ABRAMS:  Are you on the short list? 

YOO:  It‘s so short I‘m on the zero list. 

ABRAMS:  David Boies, what do you think?  Is John Ashcroft going to stay?  Going to leave? 

BOIES:  I really don‘t have any information on that.  I would guess that he would be only because although Janet Reno did stay both terms, most attorney generals have not and I would not be at all surprised to see a new attorney general in either now or at some time during the second part of the term. 

ABRAMS:  All right.  Professor Yoo, let‘s talk about the Supreme Court, all right?  What I‘ve done before where I‘ve gone into names, et cetera.  Let‘s not go into sort of like who they might pick, et cetera.  There‘s no question, though, that this administration is going to have an opportunity for some Supreme Court nominations. 

Do you think that President Bush will say this is a divided country; I really do want to unite and heal people.  Most of the electorate is somewhere in the middle and as a result that he‘ll nominate less conservative justices to the Supreme Court?  Do you think that he‘s going to go with, you know, more conservatives? 

YOO:  I would suspect it‘ll be more conservatives for two reasons.  First, I think President Bush made some pretty clear stances on who he might appoint to the courts in the first campaign.  He pointed to Scalia and Thomas‘ models of people he would appoint to the Supreme Court.  He had not changed his views in the second campaign in 2004. 

The second thing is you have had a significant change in the make up of the Senate.  You‘ve gone, I guess, to 55 votes for the Republicans in the Senate.  I think the chances that the Senate Democrats are going to renew their use of the filibuster and other procedural obstacles is going to decline quite a bit, especially where you see where the new senators and where those elections were. 

ABRAMS:  But, does that bother you?  I mean look, I know you are generally considered conservative.  But, does it bother you that sort of some of the nominees, some, have been sort of on the fringe in terms of you look at the big pictures of all the judges out there and some of the nominees have really been the furthest right options out there in terms of serious federal judges out there.  Does that bother you that administration will continue to divide the nation in that way? 

YOO:  I don‘t think they are that extreme or that far right in terms of conservatives.  I think they‘re no more conservative, for example, than President Reagan or the first President Bush appointed.  And I think if you look at the other side, Clinton, he appointed judges that I think were just as equally over within the liberal view of the law as Bush‘s appointees were...

ABRAMS:  David Boies, I don‘t buy that.  I think the justices that—the judges so far, and I think ultimately the justices of President Bush nominate, are more conservative than President Reagan or the first President Bush. 

BOIES:  I agree with that.  Certainly if you look at the judges not in one example here or there, but in general the ones that he has appointed, and I would hope that he does reach out and does try to appoint people that are more in the mainstream.  I think that if he tries to appoint somebody who‘s really on the fringe to the United States Supreme Court, that will exacerbate the kind of divisions that you see in this country.  And I think that the Democrat do have 41 votes...

ABRAMS:  Yes.

BOIES:  ... if they have to, to defeat somebody who is really at the very fringe of our legal system.

ABRAMS:  Yes, but the Democrats are going to have to live with the, you know, the sense that they are playing procedural games in the Senate as well.  Let me take a quick break...

BOIES:  Well, wait a minute...

ABRAMS:  When we come back I want to talk about the issue...

BOIES:  ... it‘s not a procedural game. 

(CROSSTALK)

BOIES:  I mean it‘s not a procedural game...

ABRAMS:  You know what, I can‘t hear...

(CROSSTALK)

ABRAMS:  Let me just take a quick break here.  Be back in a moment. 

(COMMERCIAL BREAK)

ABRAMS:  Will the re-election of President Bush make it more likely that there will be a constitutional amendment, federal constitutional amendment when it comes to same-sex marriage?  Coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

BUSH:  A really good phone call.  He was very gracious.  Senator Kerry waged a spirited campaign and he and his supporters can be proud of their efforts. 

(END VIDEO CLIP)

ABRAMS:  President Bush today during a victory speech.  And we‘re talking about the legal landscape in the second term.  And David Boies, it seems every time you‘re on we have some sort of technical problem, but David I interrupted you in the middle—we were talking about the issue of the Senate using, and I said they‘ll be—they‘ll have to live with the public perceiving that, you know, they are engaging in procedural shenanigans in essence in order to block nominees if it happens again and again.

BOIES:  Yes and the filibuster is not a procedural shenanigan.  It is a device that was used extensively by the Republicans when they‘re in the minority and it can be and will be in appropriate cases, I suspect, used by the Democrats now that they‘re in the minority.  The purpose is to prevent somebody in position of power, the majority power from using that power to put in really extreme people into the judiciary. 

Because you‘re stuck with those people, not for the term of this president, but you‘re stuck with them for decades.  So I think that if the president, and I think it would be a mistake, but if the president were to appoint somebody who was not in the main stream of judicial philosophy and appoint them to the United States Supreme Court, it would be appropriate and I think possible...

ABRAMS:  But it‘s...

BOIES:  ... that you would have a filibuster. 

ABRAMS:  But David, it‘s a balancing test, is it not? 

(CROSSTALK)

ABRAMS:  Meaning in the sense that they have to weigh how much criticism are they going to receive for doing this versus how bad is this particular nominee.

BOIES:  And it‘s another balancing test because you‘re doing is you‘re balancing the filibuster against how bad is the nominee.

ABRAMS:  Right. 

BOIES:  If the nominee is perceived as being extreme, then I think the public and particularly the constituency of the Democratic Party supports the filibuster. 

ABRAMS:  Yes.

BOIES:  On the other hand, the president won the election and the president has the right within certain reasonable parameters to pick judges of his choosing.  So if it‘s somebody who‘s in the mainstream, maybe not the person who a Democrat would have picked, but somebody who‘s within the mainstream, I think it gets accepted. 

ABRAMS:  And I‘m going to talk more about that in my “Closing Argument”.  But let‘s talk about the Supreme Court very quickly.  Professor Yoo, Roe v. Wade, you think it‘s gone at the end of this term? 

YOO:  No, and particularly if it‘s the chief justice that steps down because of his health problems.  President Bush replacing him with somebody would not change the status quo because Chief Justice Rehnquist is already one of the most conservative members...

ABRAMS:  If Stevens—if Justice Stevens then later in the term leaves? 

YOO:  I thin if Justice Stevens or Justice O‘Connor, for example,

might leave, I don‘t think you would see Roe v. Wade itself overturned, but

you would see—I could see, for example, the decision preventing statutes

·         prohibiting partial birth abortions, for example, might be overturned because that was just upheld by a 5-4 last time.  So it‘s quite true that if one of the—two of the other members were to step down, then you could see some change in the makeup of the court. 

ABRAMS:  David, goodbye Roe v. Wade, do you think? 

BOIES:  No, I would agree.  I don‘t think it‘s initially good-bye.  I think what you see is you see it chipped away at the edges.  Maybe sometimes in the future it‘s good-bye, but I don‘t think you‘ll see that this term or any term in the next few years. 

ABRAMS:  Does this, Professor Yoo, now embolden some of the people who initially were discussing a federal constitutional amendment with regard to same-sex marriage to bring that issue up again, in particular considering all the states that voted for it as well in their initiatives. 

YOO:  This may not be conventional wisdom, but I actually would suggest that this is going to remove the steam from the constitutional amendment...

(CROSSTALK)

YOO:  ... because if you change the Supreme Court and if the Supreme Court is going to say we‘re not going to uphold gay marriage as required by the Constitution, which is what everybody is afraid of, then you won‘t need a constitutional amendment.  And you can allow, as we saw in the elections yesterday, allow the states to handle it case by—state by state, which is probably what our system should do. 

ABRAMS:  David.

BOIES:  I agree.  I think that the fact that the states are passing these amendments takes some of the steam out of it.  I think it is unlikely you‘re going see a constitutional amendment. 

ABRAMS:  Finally, Patriot Act, you know, let me take—I‘m out of time, but Professor Yoo on—in the big picture here, does this allow the president to even move further, or do you think he‘s going to just continue with what he has been doing or is he going to say look, last time there was a divide out there.  Last time I lost the popular vote.  This time I won by a lot and as a result, I can move forward when it comes to law and justice with initiatives, with ideas that I wasn‘t able to pursue before.

YOO:  I don‘t think so because I don‘t think that he‘s going to see the need.  I think the Patriot Act itself was not any great revolution in law enforcement.  I don‘t think it was a great infringement on civil liberties.  It was an evolutionary change.  And I think you‘ll see the administration propose more evolutionary changes in line with what already exists for law enforcement, but at the margins, expanding the tools to fight terrorism. 

I do think you‘re right in your basic point that because of the popular mandate he received, I think he‘s going to tribute, I think rightfully, that some of that becomes because of agreement with his aggressive fight against terrorism.  And so, I could easily see a Patriot Act II being proposed, but it‘s not going to be a great revolution either that I think people ought to be worried about. 

ABRAMS:  David final word.

BOIES:  I agree it‘s not going to be any great revolution.  I think conservatives and liberals are not going to want to have an expansion in that area. 

ABRAMS:  David Boies and John Yoo, thanks a lot for coming on the program. 

BOIES:  Thank you.

ABRAMS:  Appreciate it. 

YOO:  Thanks.

ABRAMS:  Coming up, in 2000, lawyers were blamed for many of the problems in terms of resolving the election, but this year, do the lawyers deserve credit for helping to avoid problems?  We ask two of them who were at the center of it all in Ohio. 

And we see the first pictures of Scott Peterson in court—that‘s from today as the jury gets its final instructions.  They‘re deliberating at this hour.  We get a live report from the courthouse. 

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  Ohio was the most litigious state leading up to the election with well nearly 15 lawsuits, causing some to say could be the Florida of 2004.  And until this morning, it looked like the pundits might be right.  Bush held on to a narrow lead in Ohio and it looked like Kerry might take the case to court.  The lead proved insurmountable, though, despite over 150,000 provisional ballots uncounted in that state.  Knowing he didn‘t have a chance, John Kerry conceded defeat in Boston this afternoon. 

(BEGIN VIDEO CLIP)

KERRY:  In America, it is vital that every vote count and that every vote be counted.  But the outcome should be decided by voters not a protracted legal process.  I would not give up this fight if there was a chance that we would prevail. 

(END VIDEO CLIP)

ABRAMS:  “My Take”—like most people heading into Election Day, I was critical of all the lawyers, but once the dust settled I think maybe they actually helped prevent some problems, monitoring more than litigating, helping to create standards.  Without them maybe there would have been more litigation.  If there isn‘t a significant change by 2008 on how we conduct elections, which there should be, maybe it‘s even a good thing to have lawyers involved. 

Joining us now, election law attorney Mark Weaver, legal counsel for the Ohio Republican Party and attorney Ed Foley, election law professor at Ohio State University who served as a clerk for Supreme Court Justice Harry Blackmun.  Thank you both very much for coming on the program. 

All right.  Mr. Weaver, am I giving the lawyers too much credit? 

MARK WEAVER, LEGAL COUNSEL FOR OHIO GOP:  Well I think lawyers can play a role in this process.  If you look what happened here in Ohio, we did have a situation where lawsuits were filed a few weeks before the election.  We got a lot of them resolved before Election Day and that cleared the road for some of the problems that could happen during the recount. 

ABRAMS:  Professor Foley, I can‘t believe that I‘m asking these questions about whether lawyers might be actually helpful in the process, but is there an argument to be made that by dealing with—by “A”, dealing with a lot of the problems ahead of time and “B”, having them there, knowing that if there are major problems, someone is going to be watching.  It might have actually helped the process? 

EDWARD FOLEY, OHIO STATE UNIVERSITY LAW PROFESSOR:  Yes, I agree with that and I agree with what Mark just said.  It was good to resolve these things ahead of time.  It came a little late to be comfortable, quite frankly.  It got a little confusing, a little messy towards the end, particularly the night before the election.  But still it‘s better to do it even at the last hour, so to speak, than after the election starts. 

ABRAMS:  But Professor, what about monitors?  What about the idea that having lawyers there for each side, partisan lawyers, knowing that they‘re around may deter people from engaging in election shenanigans? 

FOLEY:  Well, that can cut both ways, I think.  One of the things that concerned me, and we at the Ohio State University Moritz College of Law, were not participating in any litigation.  We were solely engaged in the observation and analysis aspect of this.  But one of the things that we saw a couple of weeks out was a rhetoric that suggested—this was from both sides actually—saying that if our side loses, it was because the system was rigged against us and that as long as the system was fair, we would win. 

Again, both sides were saying that and I think that was unfortunate because it basically was saying that, you know, that you‘d have sore losers, so to speak.  But fortunately, by the time we got to Election Day yesterday, that rhetoric had escalated down.  And I think that was partly because of the litigation that occurred.  The fact that we were resolving disputes and avoiding some problems meant that we could clarify it and avoid...

ABRAMS:  Yes.

FOLEY:  ... that kind of hostile rhetoric.

ABRAMS:  Mr. Weaver, are we going to be welcoming the lawyers?  Let‘s assume for a minute there are no major changes, all right.  I think we all agree that there should be some changes in place.  People differ as to how much change is necessary.  But assuming there‘s not major—a major overhaul of the election system by 2008, would you say you know what, the lawyers actually helped last time around.  Let‘s invite them back.

WEAVER:  I think the lawyers can help when we know that our place is in the backseat and the voter‘s place is in the front seat.  Here in Ohio, we have a team of lawyers on behalf of the Republican Party, more than 300 of us, standing by ready to litigate if it happened, but we weren‘t filing litigation.  In fact, we filed very little litigation this week.  Having us ready and ready to respond and ready to deal with any problems that came up...

ABRAMS:  But apart from just dealing with problems, I‘m talking about as a deterrent.  I mean do you think that having the lawyers there, and with each side knowing that the other one, you know, had—you know, sort of like the North and South Koreans, knowing that they‘re pointing their rifles at each other, that that‘s effectively a deterrent.

WEAVER:  We think there was a deterrent to fraud.  We had more than 3,000 observers in polling places all across Ohio.  Under Ohio law, that‘s permitted.  The Democrats did file a lawsuit trying to stop that, but we went all the way to the U.S. Supreme Court and they vindicated our position.  I think the presence of the observers did act as a deterrent to fraud.  I think it did help make the election move a little more smoothly. 

ABRAMS:  Professor Weaver, final word—I mean sorry—Professor Foley, Mr. Weaver refers to deterrent to fraud, which is the Republican side of it.  The other side would say they were also—probably helped to prevent intimidation of voters as well. 

FOLEY:  Yes, and the other thing I would add is the role that the judges played in this process.  I think we—the judiciary did a very good job this time around.  There was some concern about how the judiciary handled the litigation in 2000, particularly out of Florida, and we had a lot of second-guessing of the courts.  But I think this time the story will be that the judges, even if they didn‘t agree with each other, acted responsibly and Justice Stevens at the Supreme Court level talked about reasonable differences among jurors...

(CROSSTALK)

FOLEY:  ... but you had him and some other judges issuing moderate opinions that helped calm the situation. 

ABRAMS:  Yes.  All right.  Well I can‘t believe we‘re doing this segment on possibly welcoming back the lawyers.  Mark Weaver and Professor Foley, thanks very much. 

WEAVER:  Thank you.

FOLEY:  Thank you.

ABRAMS:  Coming up, Scott Peterson‘s—the Scott Peterson jury has the case.  A verdict could come down at any moment.  So how did the defense closing argument sit with the 12 panelists?  Our legal team was in the courtroom today. 

And a lot of you still writing in with comments about my mock closing arguments for the Peterson case.  One of you who claims to be a criminal attorney not impressed.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, the jury has the case in the Scott Peterson trial.  We‘re on a verdict watch and our legal team was in court for the closing arguments, but first the headlines. 

(NEWS BREAK)

(BEGIN VIDEO CLIP)

HON. ALFRED DELUCCHI, PETERSON TRIAL JUDGE:  When you‘re done having your lunch, you can start—you can deliberate anytime you want, as far as that goes, but as long as all 12 are present in the jury room. 

(END VIDEO CLIP)

ABRAMS:  With those words, jurors in Scott Peterson‘s murder trial were sent off to deliberate his fate.  That‘s right, nearly two years after Laci went missing, the defense finished up its “Closing Argument” followed by a prosecution rebuttal.  The jury will be sequestered until they reach a verdict or come to an impasse. 

Now since we were consumed by another little story yesterday, we did not cover the defense argument where Mark Geragos described his client as a jerk and a liar but not a murderer.  So to bring us up to date on the closing arguments, KCRA‘s Edie Lambert joins us.  So Edie bring us up to date.

EDIE LAMBERT, KCRA REPORTER:  Well defense attorney Mark Geragos started his closing argument with a question, asking the jurors, do you hate Scott Peterson?  And reminding them that they have to judge this case on the facts and not on their emotion.  And his demeanor really reflected that.  He was very understated all day yesterday and into today when he finished his closing argument. 

Now he raised a lot of issues, but he started with an argument that Laci Peterson was alive on the morning of December 24 when she disappeared.  He said that there‘s evidence that she got dressed that day, that she used her curling iron, she shopped online, she watched Martha Stewart and she went walking (UNINTELLIGIBLE) walking shoes are missing. 

Geragos said if she did all those things, Scott could not have killed her based on the timeline for his actions that day.  Geragos ended today with Conner, pointing out the tape around the baby‘s neck that appeared to have been tied, proving he said that someone handled the baby outside of Laci‘s body.  He theorized if both bodies were dumped in a canal leading to the bay, perhaps wrapped in plastic, but he said he really doesn‘t know and doesn‘t have to know since he does not have the burden of proof. 

Now today we heard a very brief rebuttal from the prosecutor Rick Distaso, all of 20 minutes.  First of all, he said that the prosecutors did not change their theories.  That was one of the defense themes throughout the day yesterday.  And he said they didn‘t even give the jury a theory until today with their closing argument.  He also went back to the location of the bodies, very close to Peterson‘s alibi.  He said that proved either Peterson is guilty or someone framed him.  And he went through all of the reasons that it is not likely that someone framed Peterson.

So at this point, I can tell you again, the case is in the hands of the jury and we could have a verdict now anytime. 

ABRAMS:  All right.  And of course, if there is a verdict, we will call on Edie Lambert to tell us about it.  Of course, tomorrow I‘ll be there to tell you about it myself. 

Joining me now, criminal defense attorney John Burris and Amber Frey‘s attorney Gloria Allred, as well as former San Mateo County prosecutor Dean Johnson.  All right.  Let me read a little bit more of Geragos‘ closing argument to these jurors referring now to what Edie just talked about.

Do you all hate him?  If you hate him, then maybe what they‘re asking you to do is just convict him.  Don‘t bother with the five months of evidence.  Don‘t bother with the fact that the evidence shows clearly that he didn‘t do this and had absolutely no motive to do this.  You‘re not supposed to just decide this case on whether or not you like Scott Peterson.

It goes on.  It looks like they were doing as well as any couple.  Nobody is going to nominate Scott Peterson as husband of the year, but I tell you by all accounts, he gave Laci a great deal of love.  Dean Johnson, how was the defense‘s closing? 

DEAN JOHNSON, FORMER SAN MATEO COUNTY PROSECUTOR:  Well, the defense was a very—had a very good closing.  It sounded very good yesterday when Mark Geragos started marshalling the number of facts to suggest that Laci Peterson was alive on Christmas Eve morning.  The problem was that Rick Distaso came back and pried out every one of those nails that Mark Geragos had put in the coffin of the prosecution‘s case and did a very good job of that. 

One of the great remarks by Mark Geragos is that Scott Peterson respected Laci Peterson.  Of course, he was cheating on her.  Kind of harkens back to Scott Peterson‘s, well, I‘ll tell you the truth, but there are certain exceptions.  And of course, the exceptions swallow the rule. 

ABRAMS:  And Gloria, this I thought was one of the better defense

points that he made about what Laci was wearing.  Remember, of course, the

·         Scott Peterson said that she was wearing dark clothes.  Of course, she was found with lighter clothes on.  And this is what Mark Geragos said.

If Scott Peterson was the person who was responsible for Laci‘s death, wouldn‘t he know what she was wearing when he killed her?  Why would he tell police she was wearing other clothes?  What sense would that make?  Only rational conclusion, somehow he kills her during the night and dresses her himself, hides her tennis shoes, sits down while she‘s dead, and watches Martha Stewart.  It‘s ludicrous—Gloria.

GLORIA ALLRED, AMBER FREY‘S ATTORNEY:  Well, Dan, people who lie as much as Scott Peterson, and hopefully there aren‘t as many people who would lie as much as Scott Peterson, as many people might be concerned about, but he‘s such an amazing liar.  They can get mixed up in their lies.  It may be that here he was trying to throw the police off and basically saying now this is what she was wearing and so hoping that they would never find her. 

ABRAMS:  Yes, but if she‘s dumped...

(CROSSTALK)

ALLRED:  I don‘t know what was in his mind...

ABRAMS:  But Gloria, if your body is dumped in the bay, what difference does it make what she‘s wearing in terms of finding her? 

ALLRED:  Well, yes, you know, it‘s hard to explain.  I can‘t get into the mind of somebody who lies as much as he does.  You know, it‘s interesting because yesterday Mark Geragos said that Scott Peterson was caught with his pants down and I add to that, and with his lies exposed.  This is a person you just really cannot make any sense of.  Why he would be talking with Amber Frey at his wife‘s vigil.  Why he did what he did. 

ABRAMS:  Yes.

ALLRED:  It‘s hard to explain. 

ABRAMS:  And John, I was surprised that Mark Geragos didn‘t try and explain the issue of where the bodies were found.  I know it‘s the most damning piece of evidence.  I know it‘s the most difficult for him to explain.  But I guess I would have expected more of a reference to look, sort accepting the fact that it sure looks bad for Scott Peterson, where those bodies were found. 

JOHN BURRIS, CRIMINAL DEFENSE ATTORNEY:  Well I think that‘s one of the things a defense lawyer has to do is to acknowledge that there is some evidence that‘s not favorable to you and often try to offer some explanation for it.  It was surprising that he didn‘t offer more evidence during the course of the trial that would have suggested how the body could have—how the bodies could have gotten there and not necessarily just being placed there.  So, it seems to me he wanted to focus much more on other aspects of the case in terms of the lack of motive and the lack of (UNINTELLIGIBLE) direct evidence and to undercut the circumstantial evidence and could not really deal with the fact that the bodies were found in a location...

ABRAMS:  Yes.

BURRIS:  ... general location where he was. 

ALLRED:  And Dan, it showed just how ludicrous that some of his theories were when Mr. Distaso, the prosecutor, got up and talked about the sense that Mr. Geragos was trying to suggest some sort of conspiracy of the homeless...

ABRAMS:  Yes.

ALLRED:  ... that somehow the homeless people sit there and read the “Modesto Bee”, figure out where Scott Peterson last was and then somehow take her body up there and try to dump it...

ABRAMS:  No, but importantly...

(CROSSTALK)

ABRAMS:  ... they were saying—but he was saying they also sort of gave—one group of homeless people gave the body to another group of homeless people who may have been near the San Francisco Bay.  Dean, did they deal with this issue of where the body was found, the defense? 

JOHNSON:  No, they didn‘t and that‘s the pink elephant that‘s sitting there in the courtroom that everybody—that Mark Geragos wants to pretend is not there.  That‘s the problem—is that you cannot deal with the fact that these bodies turned up a stone‘s throw from where Scott Peterson put in.  And Rick Distaso in his rebuttal says look, the defense tries to explain this.  They say he was framed somehow. 

Well look, here are the press releases.  Here‘s what these so-called framers would have known, that Scott Peterson was fishing—quote—“in the Bay area.”  How are these possibly going to put the bodies in the exact spot where he went?  The Bay area is a big place.  He had those jurors laughing at the idea that these homeless people from Modesto then go to the Berkeley Marina, keep the baby alive, keep Laci Peterson alive and then they‘re clairvoyant enough to figure their way...

ABRAMS:  Yes.

JOHNSON:  ... around the police coverage to put the bodies in the exact right spot.  In order—for Geragos to convince them of any of those theories he would have to get them to stop laughing first. 

ABRAMS:  Yes.  All right.  Let me take a quick break here. 

BURRIS:  Well that‘s (UNINTELLIGIBLE) for him...

ABRAMS:  Yes.  Let me take...

(CROSSTALK)

ABRAMS:  Let me take a quick...

(CROSSTALK)

ABRAMS:  Let me take a quick break here.  When we come back, the jury is still deliberating as we speak.  So I may ask all of my guests how long a deliberation they think it‘s going to be.  Even John Burris sounds—seems like he‘s not as confident in that defense anymore as he once was.

And President Bush and Senator Kerry both talked about healing the nation and coming together.  I hope the president remembers this when it‘s time to appoint judges.  And Kerry thinks about (UNINTELLIGIBLE).  It‘s my “Closing Argument”. 

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

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

AMBER FREY, SCOTT PETERSON‘S FORMER GIRLFRIEND:  I met Scott Peterson November 20, 2002.  I was introduced to him.  I was told he was unmarried.  Scott told me he was not married.  We did have a romantic relationship. 

(END VIDEO CLIP)

ABRAMS:  Amber Frey on January 24, 2003.  Here‘s what Scott Peterson‘s attorney said in his closing arguments about the case as a whole.

The stark reality is this is a guy who literally got caught with his pants down.  I would love nothing more than to solve this case, point to who did it, but the fact of the matter is they have not proved this case.  They have not proved that Scott Peterson did anything except lie.” 

You know, John Burris, this suddenly sounds like Mark Geragos is trying a reasonable doubt case.  I thought he was going to prove that he was stone cold innocent. 

BURRIS:  Well, I think he finally came back to the reality of defense work, and that is that all you have to do is establish reasonable doubt.  All these various theories and things he was throwing out didn‘t make a lot of sense.  Let me tell you I thought during the course of this trial he did a nice job of really attacking the prosecution‘s case, dealing with the various motives that were put out and caused the prosecution ultimately to say we don‘t know why he did it.  But at the end of the day, as a defense lawyer, he had some evidence he could not overcome and that evidence is still out there.  And he as a defense lawyer didn‘t offer any kind of explanations.  The arguments he made today about the homeless people or suggesting that homeless people or someone did it, I don‘t think it‘s going to carry a lot of weight.  But I thought he did a nice job in attacking the prosecution...

ABRAMS:  Yes.

BURRIS:  ... prosecution all throughout the trial. 

ABRAMS:  I did, too.  I mean I thought that he was really, until Amber Frey took the stand, I was thinking an acquittal in this case.  But now Dean Johnson, is the sentiment around the courthouse that Scott Peterson is going to be convicted and if so, quickly? 

JOHNSON:  Oh, that‘s the definite feeling around the courthouse.  Distaso‘s rebuttal today was probably the most important 20 minutes of this trial.  He nailed down a number of points that Mark Geragos had brought up.  And he had some very dramatic demonstrations that rebutted everything that Mark Geragos had raised about his theories, had the jury laughing about Mark Geragos‘ crazy theories and so on.  And yes, the feeling is that this may very well be a conviction, may very well be a quick verdict.  Of course, we don‘t know.  But that‘s the way it‘s looking. 

ABRAMS:  Because Dean I‘m coming out there tomorrow.  So you‘re thinking that maybe by Friday I‘ll be heading home. 

JOHNSON:  I think you better get on a plane as quick as you can...

(CROSSTALK)

ABRAMS:  Who said that?  What did you say John?

ALLRED:  And Dan...

(CROSSTALK)

ALLRED:  And Dan, you know, it‘s interesting that Rick Distaso said to the jury look, here are the elements of the crime.  Human beings have to be killed.  We‘ve got that beyond a reasonable doubt.  You know, somebody else had to do it.  We‘ve got that.  He even said premeditation; you‘ve got that beyond a reasonable doubt because it only takes a moment as a matter of law to premeditate.  Somebody decided to do it.  Now your really—your only issue you really have to deal with is the identity of the perpetrator. 

ABRAMS:  Yes.

ALLRED:  And of course, the prosecution is saying...

ABRAMS:  What about this...

ALLRED:  ... that‘s the easy part because that‘s Scott Peterson...

ABRAMS:  What about this, Gloria...

(CROSSTALK)

ABRAMS:  What about this?  What about the—Mark Geragos saying clearly your client, Amber, was not the motive.  Nobody was going to kill Laci Peterson and her child for Amber Frey. 

ALLRED:  Well, it‘s interesting because Rick Distaso came back on that point where he said to the jury look, the defense is trying to suggest that the only reason that Scott Peterson was talking to Amber was because she was the only one who would understand him at that point.  And of course, that‘s not all there was to it.  And I—it‘s not that Amber is or is not the motive.  She is part of the larger motive, freedom, freedom from Scott Peterson from the life that he was leading.  Obviously, he didn‘t have feelings for Laci Peterson or it didn‘t appear that he did.  And that‘s what he wanted—was a new life and Amber probably was part of that in—at least in his head. 

BURRIS:  You know the prosecution made a big argument about Amber Frey all throughout the case.  And I think if they came off that argument, the closing argument, the same way on financial motives as well.  They really were left with no motive other that he just wants to be free.  I don‘t think that‘s enough of a motive...

JOHNSON:  Oh, John, John, John...

ALLRED:  I don‘t agree...

ABRAMS:  Hang on.  Dean...

(CROSSTALK)

ABRAMS:  Let me let Dean...

(CROSSTALK)

ABRAMS:  Hang on.  Let me let...

(CROSSTALK)

ABRAMS:  Hang on.  Dean...

(CROSSTALK)

ABRAMS:  Hang on.  Let me let Dean respond.  Go ahead Dean.

JOHNSON:  John, were you in the same courtroom with me? 

(CROSSTALK)

JOHNSON:  Distaso made a very, very—made a very good point here. 

He said that we never said that Amber Frey was the motive. 

BURRIS:  No, that‘s not...

JOHNSON:  He never said...

BURRIS:  He said he said that, but that‘s not how he tried that case and that‘s how he got a lot of evidence...

JOHNSON:  No, no, no...

BURRIS:  ... that he otherwise wouldn‘t have gotten...

(CROSSTALK)

BURRIS:  ... but for the notion that he convinced the court that it was motive. 

ABRAMS:  It is part of the motive.  That‘s what he said.

JOHNSON:  Well Geragos set up a strawman argument.  He put that motive on the prosecution.  They never said that.  They never articulated their theory until their closing argument...

ABRAMS:  All right.  Well we shall see...

(CROSSTALK)

ABRAMS:  The jury...

ALLRED:  ... did say that Scott was obsessed with her. 

ABRAMS:  ... is deliberating as we speak.  And I will be there tomorrow as those deliberations continue.  Gloria Allred, Dean Johnson, John Burris, thanks a lot.  See you in Redwood City as we wait for the verdict. 

Coming up, it worked this time and the president is celebrating a victory in the Electoral College and the popular vote.  But I still say it‘s time to start directly electing the president, as I said on Monday.  Some of you disagree.  Your e-mails coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, President Bush will have a lot to say about the American judiciary in this next term.  I hope he remembers his promise to earn the faith of all Americans when it comes time to picking judges.  It‘s my “Closing Argument”...

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—as I listened to both President Bush and Senator Kerry talk today about healing the nation and coming together, I couldn‘t help wonder whether those were just hollow words when it comes to a controversial issue near and dear to my heart.  The appointment and confirmation of judges and any U.S. Supreme Court justices in particular.  It is so easy to say the words.  Now it is time to see them make the words mean something.  First, President Bush needs to avoid appointing ultra conservative judges.  Judicial extremists who are completely out of the main stream. 

To appoint them is to guarantee that the divide of the nation just continues to grow.  And it ignores the reality that while this is a nation divided, most of us are somewhere in the middle, either more liberal Republicans or more conservative Democrats.  I would hope the judicial appointments would reflect that reality.  President Bush received a mandate from the American people to among other things appoint judicial conservatives to the courts. 

That‘s a given.  But when a judge is appointed to an appellate court for life, it‘s also fair to hope that there are other more conservative judges who were passed over because in comparison, they were, well, too conservative.  I hope the president resists the temptation to allow the far right to dictate who makes it on to our most cherished courts, assuming that occurs. 

Now, let me rephrase that.  Assuming that occurs, Democrats in the Senate must stop the procedural games they‘ve been using to avoid voting on nominees and confirm the president‘s selections.  The people have spoken and it‘s the president‘s authority to select judges.  The Democratic senators are there not just to—quote—“advise” but to consent as well.  In this divisive issue, in this divided nation, a little compromise would go a long way. 

I‘ve had my say, now it‘s time for “Your Rebuttal”.  On Monday in my “Closing Argument” before the election, I said it‘s time to change the way we vote because our current voting procedures and rules are antiquated, inconsistent and unreliable.  I said it‘s time to get rid of the Electoral College because it eliminates the one-person one vote and allows someone to be elected who loses the popular vote and it also doesn‘t account for third party candidates.  Plenty of response. 

In Colorado, Bob Fernstrom writes, “You‘re dead right about our need to reform our antiquated and flawed system.  Unfortunately, the only people who can begin this process, however, are the ones who get elected into office by using it.  I fear their answer will be it worked for me.  Why change it?”

But Ron Abbot in Montclair, California, “Doing away with it at this time would be a disaster.  You would have a few heavily populated states controlling the election and the rest of the country left out.”

Marshall Potter, “We live in a Republic.  We live in a Republic for a reason.  Because the framers knew, as do most educated citizens, that in a direct democracy the mob will rule.”  Come on.  As if the Electoral College is to protect me against that? 

Last week I presented mock closing arguments from both sides in the Scott Peterson case.  On Friday, the defense.  But Jack Kelley in Hatfield, Pennsylvania wasn‘t impressed. 

“Abrams, you don‘t know what you‘re talking about.  Your summations are indicative of your lack of experience in criminal defense law.  I‘ve been at it for over 30 years.  Closing statements cannot assume facts not in evidence.  Most of what you claim to be proving in the Peterson case was not established.  So what you presented is plain old emotional appeal.  Judges don‘t like that.” 

Mr. Hatfield, first of all, they‘re called closing arguments.  It‘s opening statements, closing arguments.  Furthermore, it‘s a jury who is deciding the case, not a judge.  And juries often do like emotional appeal.  Furthermore, the arguments I made were the very same ones that—being made by the defense.  So you may not like their case.  I‘m not thrilled with it either, but Mr. Hatfield, you as a lawyer of 30 years should know you have to argue the case you‘re handed. 

Finally, Warren Corernthal from Montclair, New Jersey, wrote us on Monday.  “I can‘t wait for this election to be over so we can concentrate on truly important events like the Scott Peterson trial.”

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‘ll have a full wrap-up. 

See you tomorrow from the courthouse in Redwood City, California as we await the verdict in the Scott Peterson trial.  I‘ll be there.

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

END   

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