updated 11/16/2004 10:13:48 AM ET 2004-11-16T15:13:48

Guest: Ron Frey, Gloria Allred, Dean Johnson, Daniel Horowitz, Jeffrey Addicott, Raymond Toney, Matthew Staver, Barry Lynn

DAN ABRAMS, HOST:  Coming up—she was the prosecution‘s star witness during Scott Peterson‘s trial.  But now some are saying his girlfriend, Amber Frey, could help to keep him off death row.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  She apparently opposes the death penalty.  But could she, would she, will she now come to Peterson‘s aid?  Amber Frey‘s father and her attorney join us.

And a Marine fighting in Fallujah pulled off the battleground after shooting an injured Iraqi insurgent at point-blank range.  Cameras catch it all on tape, but with his comrades being killed at the very same time, could that be a defense?

Plus, public schools in Georgia place stickers on textbooks that challenge the theory of evolution.  In effect, promoting religion in the classroom.  Isn‘t that clearly unconstitutional?  Some parents now taking the school board to court in what could become a major legal showdown.

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  I‘m back.  First up on the docket, the verdict is in.  Scott Peterson is a convicted murderer, now facing the possibility of a death sentence.  Now there is talk that maybe his former girlfriend and the star witness against Peterson, Amber Frey, might come to his defense in the penalty phase of his trial.  Amber Frey‘s father joins us in a moment to tell us how she is dealing with the verdict, but first a quick look at the sights and sounds from the courthouse on Friday.

(BEGIN VIDEO CLIP)

JENNIFER LONDON, MSNBC CORRESPONDENT:  We are hearing that we are just a matter of seconds away from hearing the verdict in Scott Peterson‘s murder trial.  We are going to be live to the courthouse and the live audio feed.

UNIDENTIFIED FEMALE:  We the jury in the above-entitled cause find the defendant, Scott Lee Peterson, guilty of the crime of murder of Laci Denise Peterson.  Guilty of the crime of murder of baby Conner Peterson.

(CHEERING)

(APPLAUSE)

UNIDENTIFIED FEMALE:  Oh, wow...

(CROSSTALK)

UNIDENTIFIED FEMALE:  (UNINTELLIGIBLE)

GLORIA ALLRED, AMBER FREY‘S ATTORNEY:  Millions of people have been praying for justice.  I think this is justice.

RUBY GOLART, LACI PETERSON‘S GREAT AUNT:  I really feel terrible.

UNIDENTIFIED FEMALE:  But do—is it a relief to you?

GOLART:  Yes, it‘s over with.  Thank God it‘s over with.

RON FREY, AMBER FREY‘S FATHER:  They came down quick today.  Once they got the right jurors in there that were in agreement, it didn‘t take long.

JIM BRAZELTON, STANISLAUS COUNTY D.A.:  Oh, I think the results speak for themselves.  I‘m very proud of them.  They put a lot of time, amount of hard work into it, and it paid off for them.

UNIDENTIFIED MALE:  No more O.J.  No more! This is not killer county, y‘all.

(END VIDEO CLIP)

ABRAMS:  Now when the jury reconvenes a week from today, it will hear more testimony, this time‘s Peterson‘s lies and DNA will be replaced by Peterson‘s good deeds and the people who gave him his DNA, his parents, emotional testimony from people close to both Laci and Scott.  Those who knew Laci will talk about the effect, the loss had on them and those who knew Scott will plead with jurors to spare his life.  The question—will she be called to the stand?

(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:  Joining me now is a friend to this program, Amber Frey‘s father, Ron Frey.  Ron, good to see you again, thanks for taking the time.

R. FREY:  Hello, Mr. Abrams.

ABRAMS:  All right, so let‘s  -- let me just ask you straight out.  Did your daughter say anything to you about being willing to testify or keeping open the possibility of testifying for the defense in this?

R. FREY:  Well, no, Amber never does speak about the case, Mr. Abrams. 

She doesn‘t make any comments one way or the other.

ABRAMS:  You were quoted in some papers here in New York suggesting that Amber might very well be willing to testify for the defense team in an effort to spare Scott Peterson‘s life.

R. FREY:  Well, I think the papers of New York took my quote and ran with it.  Amber, long before she knew Mr. Peterson, was against the death penalty and against abortion.  Now, she has made no comments about his sentencing in the least, and I think it would be very inappropriate to ask her to do so.  I think she‘s been through enough.  I know she did her civic duty well.  That would not be appropriate to even ask her to go to this hearing.

ABRAMS:  Knowing her, if she were asked, if the defense team said, you know, look, we get it, he‘s convicted, he‘s going away for life, we want to try and spare his life, do you think she would—she‘d be willing to testify for Scott Peterson?

R. FREY:  Well, if they—would she testify for him, oh, that is so hard to answer.  The way she is, she‘d have to turn it over to God.  I don‘t think she could answer that, Mr. Abrams.  She really is a real person, but that‘s too much to put on her.

ABRAMS:  So you think in the end she would have to say, look, find someone else, you don‘t need me to testify here.

R. FREY:  I don‘t think she could do it.  After the verdict, I called and offered my help if she needed it.  There was tears in her voice, and I‘ve showed respect by not talking to her the last few days, letting her digest what happened.  I‘m very proud she did her civic duty, pleased with the verdict.  It didn‘t bring joy to anybody‘s heart to have to indirectly put this man to death.

ABRAMS:  Tell me how she reacted.  When you talked to her, you said you spoke to her after the verdict.

R. FREY:  Well, I called and she had tears in her voice.  Now, several days before the verdict come out, we spent a lot of time with her.  Emotions were running high.  She—it was affecting her.  You know, this case has been going on a long time, and I think she deserves a break from it now.

ABRAMS:  Is she glad that this part of the case is over, relieved?

R. FREY:  Well, she didn‘t make that comment.  Dr. Markovich (ph), her boyfriend, said they will both be pleased when everything‘s finalized, though.

ABRAMS:  Let me—I want to just play you one piece of tape from one of these phone calls and just ask you—put aside Amber, because I understand you basically said that she can‘t—she hasn‘t talked about at length what she‘s going to do now.  I just want to ask father, quick reaction.  This is one of the tapes the jurors heard in court.

(BEGIN AUDIOTAPE)

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

A. FREY:  What—and Ayianna what?

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

A. FREY:  (UNINTELLIGIBLE)

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

(END AUDIOTAPE)

ABRAMS:  As the grandfather of that child, as the father of Amber, did it just make you ill to hear those tapes?

R. FREY:  Well, it was very disturbing that he could so easily just say anything that fitted the occasion.  Thank God and Amber that she was brave enough to come forward to do her civic duty.  Took a lot of courage or else we may—I‘ve never known what Mr. Peterson was really like, but it‘s a real tragedy on all ends of this.  It‘s just a terrible thing that has happened.

ABRAMS:  I said it during the trial, you know, I‘ll say it again now.  I think Amber was unfairly maligned by many during this case.  And you know, I think it was good that she had people like you out there defending her.  Final question here, do you hope, do you think it would be appropriate for Scott Peterson to get the death penalty?

R. FREY:  Well, the law definitely points to that and my Christian friends say it would be appropriate for him to have the death penalty.

ABRAMS:  How about you?

R. FREY:  If we want to really punish Mr. Peterson, life in prison thinking about this would be more severe than death.  This is a really tough one, because this is getting real close to home here.  I‘d have to give him life in prison.

ABRAMS:  Ron Frey, thank you once again for taking the time coming back on the program.  Appreciate it.

Coming up—you‘ve heard from her father.  What about Amber Frey‘s attorney?  What does she say about the prospect, possibility—theoretical possibility of Amber Frey testifying for the defense?  And how much would Peterson‘s behavior towards Frey matter, meaning the stuff that came in, in the guilt phase?  Would that matter in the penalty phase, how he treated her?

And as the U.S. offensive rages on in Fallujah, a Marine enters a mosque during the aftermath of a battle with an insurgent who was faking his own death, shoots him at point-blank range.  The Marine now relieved from his duty, immediately under investigation.  The question, could he claim self-defense?  His colleagues were being killed at the very same time.

Plus, angry parents in an Atlanta suburb are suing the school district after they say stickers placed on science books pushed the teaching of creationism and discriminate against non Christians.

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—will Amber Frey take the stand in defense of Scott Peterson in the penalty phase?  We‘ll ask her attorney.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

A. FREY:  I am very sorry for Laci‘s family and the pain that this has caused them.  And I pray for her safe return, as well.

(END VIDEO CLIP)

ABRAMS:  Amber Frey, Scott Peterson‘s former girlfriend, three months before the remains of Laci Peterson and her unborn son washed up on the shore right where Scott had said he was fishing that day.  She spent days on the stand during the trial revealing intimate details about her relationship with Peterson and listening to calls that she had recorded for the police.

The question we‘re asking is, could she take the stand for the defense?  You heard her father just say she opposes the death penalty.  And if so, how much of a difference would it make?  Joining me now to share some thoughts, Amber Frey‘s attorney, Gloria Allred, former San Mateo County prosecutor Dean Peterson, and criminal defense attorney Daniel Horowitz.  Gloria, any possibility Amber Frey would testify for the defense?

ALLRED:  I don‘t think so, Dan.  I don‘t believe that she is going to be called as a prosecution witness, and even though there are unconfirmed reports that the defense wishes to call her, they haven‘t notified me that they would request her to be a witness.  And in addition, they have made no notification to Amber, so I don‘t think they‘re going to call her.

Remember that the defense said they were going to call her during the preliminary hearing, and they did not.  Then they said they were going to recall her in the trial, and they didn‘t.  And I doubt that they‘re going to call her now.

ABRAMS:  If they did want to call her considering, you know, what Mr.  Frey was just saying about her views on the death penalty, how would she feel about testifying to try and save Scott Peterson‘s life?

ALLRED:  Well, I‘m not going to confirm that those are, in fact, her views, but I mean, she‘ll do her duty.  If she‘s subpoenaed, she‘ll tell the truth.  But if I were Mr. Geragos, I wouldn‘t be calling Amber Frey to the witness stand.  I think that would be a big mistake on his part.

ABRAMS:  Dean Johnson, any chance? 

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Not a chance in the world.  There were two phases of the guilt part of this trial, pre-Amber Frey, post-Amber Frey.  Before Amber Frey testified, the defense thought they were going to have a cakewalk to acquittal.  After Amber Frey, everybody was talking about conviction.  They do not want to remind this jury why they hate Scott Peterson.  They do not want to remind this jury that Scott Peterson has, in effect, a third victim, Amber Frey.

ABRAMS:  But Daniel, can‘t that very reasoning, the fact that she was such a powerful prosecution witness, actually help the defense?  Let‘s assume for a moment that she would just get up there and say, look, I‘m opposed to the death penalty in all cases, and then the defense would say, so you oppose the death penalty in this case, and she would say, well, since I‘m opposed to the death penalty in all cases, yes, I‘m opposed to the death penalty in this case.  Considering how much of a powerful prosecution witness she was, could that be helpful to the defense?

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  Dan, if that could happen, under California law, it would be tremendously powerful.  The jury doesn‘t need any particular amount of evidence to spare the life of Scott Peterson.  If Amber Frey simply said, I don‘t want him to die, it would hurt me, this jury would let him live.  Unfortunately, under California law, no one can testify as to their opinion on the death penalty, not the Rochas and not Amber Frey.

You know, the best thing she could do, Dan, would be to come into the courtroom and sit on the defense side of the aisle so that the jury knew silently what she was saying.  That alone might save his life.

ABRAMS:  Yes, but Gloria that—even that is almost impossible.  I mean it‘s so unlikely to happen, right?

ALLRED:  I don‘t anticipate that to happen.  And really, what‘s important for the jury to consider are the nature and the circumstances of the double murder that occurred and also whether he has any prior criminal history, which apparently he does not have a prior criminal record, and his mental and physical condition, but I don‘t think there‘s anything that she is going to contribute that really would be helpful on the evidence issues.

ABRAMS:  Yes, I just don‘t see it.  I just don‘t see it happening.  I mean it is just too risky.  They‘ve got too many other people that they can call to the witness stand to try and help Scott Peterson.

ALLRED:  Exactly. 

ABRAMS:  All right, let me ask everyone to stick around, because coming up, what if Amber Frey doesn‘t testify during the penalty phase, as everyone is suggesting—question—how important will her testimony from the trial become?  Meaning, does it matter how Scott Peterson treated Amber, the fact that, as one of the guests just said, she was effectively the third victim here.  Will that hurt Scott Peterson when it comes to that live or death decision?

And a Marine in Fallujah returns to the front lines only a day after being shot in the face.  He‘s now been pulled from duty after killing a wounded insurgent in a mosque.  The question we ask, though, is considering everything that was happening, is it possible it was self-defense?  Coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SHARON ROCHA, LACI PETERSON‘S MOTHER:  Soon after Laci went missing, I made a promise to her that if she‘s been harmed, we will seek justice for her and Conner and make sure that that person responsible for their deaths will be punished.  I can only hope that the sound of Laci‘s voice begging for her life and begging for the life of her unborn child is heard over and over and over again in the mind of that person every day for the rest of his life.  The person responsible should be held accountable and punished for the tragedy and devastation forced upon so many of us.

(END VIDEO CLIP)

ABRAMS:  Laci‘s mother, Sharon Rocha, just days after her son-in-law, Scott Peterson, was arrested for killing Laci and their unborn child.  The jury may hear that same passion from her on the witness stand during the penalty phase of Scott Peterson‘s trial, set to begin on Monday.  Now we‘re going to talk about—throughout the week about all the various issues in the penalty phase, but today we‘re talking about the issue of Amber Frey.

In addition to Scott Peterson constantly being lovey-dovey with Amber, telling her he wants to be with her and he wants to stay with her and he wants a life with her and all that, at times he wasn‘t so nice to her—like here.

(BEGIN AUDIOTAPE)

A. FREY:  So are you telling me none of this was going to ever happen with you and I?

PETERSON:  No, I don‘t, you know, I don‘t know.  I mean that‘s why they‘re possibilities.  You know, that‘s what we talked about was you know, if and things like that.  And you thought of them as definitely going to happen then (UNINTELLIGIBLE).

(END AUDIOTAPE)

ABRAMS:  And you know, the problem for Peterson is those—the rest of those possibilities he was talking about, he was talking about on tape.  He just didn‘t realize that the world would be able to hear them and sort of make him accountable for it.  Dean Johnson, will that matter in the penalty phase, the fact that he mistreated Amber Frey so much?

JOHNSON:  Oh, absolutely it‘s going to matter.  But ultimately it‘s not just Amber Frey.  Amber plays the same role in the penalty phase as in the guilt phase.  It‘s not that he had an affair with her as such; it‘s what that represents.  It represents the fact that this guy was leading a double life.  The prosecution is going to say the other side of that life, Scott Peterson, the perfect husband, died when he put Laci Peterson‘s body in San Francisco Bay.  The person who‘s really on trial now is that H.B.  who committed that act and who broke Amber Frey‘s heart?

ABRAMS:  Dean, I don‘t see how it matters, I really don‘t, when it comes to death—life or death.  I just don‘t see how, you know, this is where all those defense arguments about, so, you know, he was a cad, he was a liar, et cetera.  This jury now believes he‘s a murderer also.  But when it comes to Amber Frey, why would how he treated her have any impact on whether he deserves to live?

JOHNSON:  For the same reason that it had an impact on the guilt phase of the case.  It wasn‘t so much that that had any substantive impact on the real legal issues.  It‘s the emotional impact on this jury.  After Amber Frey testified, this jury hated Scott Peterson.  They‘re going to feel the same way.  And in assessing his life, which is really the task of a penalty phase jury, they‘re going to weigh that.  They‘re going to weigh that as an aggravating factor, whether it‘s on the list or not, and it‘s going to weigh against Scott Peterson.

ABRAMS:  I don‘t know, Daniel Horowitz, I don‘t know that I think it‘s going to have much impact.

HOROWITZ:  Dan, I hope you‘re right, because the law says it should have no impact.  The only thing the prosecution can present in penalty phase are the circumstances of this crime.  There‘s no prior acts of violence or felony convictions...

ABRAMS:  She‘s part—but in theory—you know look, she was part of the premeditation here, and therefore, part of the circumstance of the crime.

HOROWITZ:  Only to the extent that it goes to his state of mind in planning this.  But what you talked about and what you hoped would not enter into their deliberations is whether he was nice to her, hurt her, or in other ways was a cad.  And that‘s the problem with the death penalty, Dan.  The juries do not often follow the very strict rules that we set up.  Intellectually, we put strict limits...

ALLRED:  Dan...

HOROWITZ:  ... but ultimately...

ABRAMS:  Wait, Dean—I mean Daniel, is there why there hasn‘t been a death penalty imposed in San Mateo County since ‘98 because juries are sort of disregarding all the time and putting everyone to death?  I mean come on.

HOROWITZ:  No, it‘s not that, Dan.  But the problem is that when people do get put to death, there‘s no proportionality.  You don‘t know in what case they‘re going to get it or not.  Truthfully, Dan, this Peterson case, from what we see as defense lawyers, is nowhere...

ABRAMS:  Gloria...

HOROWITZ:  ... near the worst of the worst.

ALLRED:  Yes.  Dan, a factor under California code is the character of the defendant.  So...

HOROWITZ:  No, Gloria, let me correct you...

ALLRED:  ... in that...

(CROSSTALK)

ALLRED:  I didn‘t interrupt you.  May I...

HOROWITZ:  Gloria, it‘s not even close.

ABRAMS:  Let her finish.

HOROWITZ:  It‘s not the law.

ALLRED:  ... please speak?  Thank you very much.

ABRAMS:  Yes.

ALLRED:  Character is a factor.  But I think what‘s more important...

HOROWITZ:  No, it‘s not...

ALLRED:  ... and so Amber you know is relevant in that way.  But I think what‘s more important are the nature and circumstances of this crime.  What you have is a very vulnerable victim in Laci, eight months pregnant, his wife.  You have also the fetus, Conner, extremely vulnerable.  And, you know, obviously this is a crime of violence.  You know, I think that‘s going to weigh heavily with this jury.  Then you look at the mitigating factor, no prior criminal record...

ABRAMS:  Yes.

ALLRED:  ... you know, I think that the aggravating factor may be considered more substantial than the mitigating factor...

ABRAMS:  ... I don‘t think—I just don‘t think the Amber Frey factor is going to come into play here in the penalty phase.

HOROWITZ:  I hope not Dan.

ABRAMS:  We will find out.  Gloria Allred, Dean Johnson, Daniel Horowitz, as always, thanks.

ALLRED:  Thank you.

JOHNSON:  Thanks Dan.

ABRAMS:  Coming up—U.S. troops in Fallujah have been taking heavy sniper fire as they tighten their control in the city.  One Marine caught on tape shooting an insurgent he believed apparently was faking his own death.  But we ask, is there a claim of self-defense?  His unit was under attack, his comrades were dying.

And also the question in Georgia, must schools there remove stickers on textbooks that some parents say challenge the period of evolution and promotes a more Christian version of how the world began.  We debate.

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up—it appears a Marine (UNINTELLIGIBLE) opened fire on an unarmed Iraqi fighter in Fallujah.  Is there any way we ask the shooting could be self-defense?  What if the Marine feared the Iraqi was faking his death?  First the headlines.

(NEWS BREAK)

ABRAMS:  Welcome back.  As the fighting rages on in Iraq, a disturbing story from Fallujah where Marines continued to eliminate pockets of resistance.  Over the last several days, Marines have been taking heavy sniper and RPG fire with some of that fire coming from mosques.  On Friday, Marines from the 3/1 stormed one of these sites in southern Fallujah.  Inside, apparently a bloody scene.

The Marines continue fighting on.  They leave on Saturday after hearing reports again of movement in the same mosque, believing it had been reoccupied by insurgents.  A new unit uses tank fire and shortly after a second Marine squad arrives.  Their lieutenant asked the first squad what happened.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  The other ones got shot up by tank.

UNIDENTIFIED MALE:  (UNINTELLIGIBLE)

UNIDENTIFIED MALE:  The tanks did?

UNIDENTIFIED MALE:  Yes...

(CROSSTALK)

UNIDENTIFIED MALE:  ... people in here (UNINTELLIGIBLE).

UNIDENTIFIED MALE:  Yes, we had two in there.

UNIDENTIFIED MALE:  Did you shoot them?

UNIDENTIFIED MALE:  (UNINTELLIGIBLE)UNIDENTIFIED MALE:  Did they have any weapons on?

(END VIDEO CLIP)

ABRAMS:  According to NBC reporter Kevin Sites, embedded with the 3/1, when the Marines entered the mosque on Saturday, the Iraqi men they discovered there on Friday had fresh wounds, two of them against the wall bleeding, one appearing to be already dead, the fourth severely wounded but breathing, and the fifth under a blanket, but seemingly in stable condition.  Suddenly Sites says one of the Marines from the unit began to question whether one of the injured men was faking the injury and opened fire.

(BEGIN VIDEO CLIP)

(SOUNDS)

UNIDENTIFIED MALE:  (UNINTELLIGIBLE) dead.

UNIDENTIFIED MALE:  He‘s breathing.

UNIDENTIFIED MALE:  He‘s faking he‘s (EXPLETIVE DELETED) dead.

(SHOTS)

(END VIDEO CLIP)

ABRAMS:  The Marine who opened fire at close range had reportedly been shot in the face in combat the day before, and according to NBC‘s Kevin Sites, that happened at the same time a Marine was killed and five were wounded by a booby trapped body of an insurgent just about a block away, which led some to believe that this Marine could argue he was acting in self-defense.  The pentagon acted swiftly.  The Marine was removed from the field.  Lieutenant Colonel Bob Miller (ph) is heading up a full investigation into the case.

Joining me now to discuss, Raymond Toney, a military law defense attorney, and retired Lieutenant Colonel Jeffrey Addicott, a former JAG attorney.  Good to see you.

All right, Colonel Addicott, what is—what are the rules that apply here?

LT. COL. JEFFREY ADDICOTT, FORMER JAG ATTORNEY:  Well, generally when you‘re in a combat situation, you don‘t have to announce that you‘re going to engage the enemy.  It‘s not really a matter of self-defense if the enemy is, in fact, able-bodied and armed.  In this case, apparently these individuals were wounded and out of combat, and therefore, the rules are that if they are out of combat, you have to treat them humanely.

Now, if you suspect, however, that the individual might be faking their wounds or have a weapon that they could use against you, and this has occurred several times, by the way, in Fallujah, where individuals have tried to surrender to terrorists and have had weapons under their robes and have fired on their soldiers, and that‘s a violation of the law of war.

We can return fire.  So it depends on what was in the mind of that particular soldier.  Was he acting in a manner responding to what he felt was an aggressive act by this individual or not?

ABRAMS:  Mr. Tony, but how do you defend—I‘m sorry, how do you define an aggressive act?  I mean there‘s no question that this, you know, the insurgent wasn‘t moving, but that doesn‘t necessarily mean he wasn‘t dangerous.

RAYMOND TONEY, MILITARY LAW DEFENSE ATTORNEY:  That certainly is correct, Dan, and the issue here is if the unit had faced previous circumstances in which wounded insurgents or even perhaps dead insurgents were concealing weapons, booby-traps more specifically, then certainly in this Marine‘s mind, he may have had every right to perceive substantial danger to him.

ABRAMS:  And what would be the standard that would say this is crossing the line?

TONEY:  The standard that would be employed here is that, for self-defense, is whether a reasonable person would have perceived there to be danger to the Marine...

ABRAMS:  A reasonable person who had seen what he had seen, who had been fighting the people he had been fighting?

TONEY:  Yes, that‘s correct.  Obviously the combat situation draws—brings this away from your typical criminal defense to the situation where you have a homicide, but yes, the reasonable person, I believe under the circumstances, whether that person would perceive there to be the likelihood of grievous bodily harm resulting to that soldier or to his—or excuse me—to that Marine or to his fellow Marines.

ABRAMS:  Colonel Addicott, you agree with that?

ADDICOTT:  Yes it is and under the laws of war, which really what we‘re dealing with here, if you shoot an individual that is wounded, that is a grave breach of the law of war.  If the individual is already dead, then that‘s a simple breach of the law of war, grave breaches.  We have an obligation for grave and simple breaches to immediately investigate.  If it‘s a grave breach, to prosecute that individual or to turn...

(CROSSTALK)

ABRAMS:  Colonel, what if he came in thinking that all these people were dead?  All right, let‘s say one of his comrades said, look you know,, all of them are dead, and then they walk in and are startled by the fact that actually one of the people is not?

ADDICOTT:  Again, I think that if you believe that they‘re dead, no one‘s supposed to be moving, you see someone move, that might be the reasonableness that we‘ve discussed that would allow you to engage that as a target.

ABRAMS:  All right.  You know, this just tells you that you know, the tape doesn‘t tell it all, particularly when will it comes to the law and what‘s appropriate and what‘s not when it comes to the rules of war.  Raymond Toney, Colonel Addicott, thanks very much.  Appreciate it.

(CROSSTALK)

TONEY:  Thank you Dan.

ABRAMS:  The battle over evolution goes back to court because of this sticker.  A group of parents—do we have it?  No.  I promise you‘ll see the sticker.  They‘re going to court to get it taken off the students‘ books.  It‘s talking about evolution as just a theory.  We talk to both sides.

And the Senate back on Capitol Hill, it seems the first thing on the agenda for some senators is to try to block moderate Republican Arlen Specter from taking over the Judiciary Committee.  Why?  He committed the political sin of intellectual honesty when it comes to judicial nominations.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  The theory of evolution may be settled science as far as most biologists are concerned.  But it remains a political and legal flash point for conservative groups, including some who believe children exposed to evolution in the class room should also learn theories more in tune with the literal word of the bible, like so-called creation science and intelligent design.

In Pennsylvania, the Dover School District has become the first to mandate teaching intelligent design in the ninth grade.  That‘s the idea that the universe is so complex and well made, it must have been designed by a higher power.  And in Georgia, federal court has just heard closing arguments in a lawsuit to take a warning sticker about evolution off biology textbooks.

NBC‘s Don Teague has that story.

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE:  Raise your hand if you know it.

DON TEAGUE, NBC NEWS CORRESPONDENT (voice-over):  Another fight in the battle over teaching evolution in public schools.  At issue, a sticker placed in science books in Cobb County, Georgia, a community known for its conservative Christian views.  Parents pushed for the notice that declares evolution is a theory, not a fact.

MARJORIE ROGERS, PARENT:  The textbooks are inaccurate and misleading, and that‘s what the case is about.

TEAGUE:  But other parents and the ACLU say it‘s about Christians trying to push creationism into public schools.  Parent Jeffrey Selman is among those suing the school board demanding they remove the stickers.

JEFFREY SELMAN, PARENT:  They‘re political cowards because that‘s not an accommodation of religion, OK?  You cannot accommodate something at the total expense of something else.

TEAGUE:  The conflict between creation and evolution spans decades.  In 1925, Tennessee high school teacher John Scopes stood trial for teaching evolution.  In 1987, the U.S. Supreme Court ruled creationism is a religious belief that can‘t be taught in public schools.  The Cobb School Board maintains its sticker is only designed to encourage students to be open-minded.

LINWOOD GUNN, COBB COUNTY SCHOOLS ATTORNEY:  There was no intent to teach creationism or intelligent design, and it hasn‘t, in fact, been taught in the classroom.

TEAGUE:  Still, the influence of conservative Christians in the U.S.  is undeniable.  They‘re credited in large part with re-electing George Bush.  And in the last four years, there have been proposals that challenge the teaching of evolution in at least 40 states.

EUGENIE SCOTT, NAT‘L CNTR SCIENCE EDUCATION:  Whenever we see communities in the United States where religious conservatives, political conservatives have a lot of sway, this issue tends to come up.

TEAGUE:  For now, the stickers remain with students caught in a battle between religion and science.

Don Teague, NBC News, Atlanta.

(END VIDEOTAPE)

ABRAMS:  Thanks, Don.  My take—Supreme Court, the U.S. Supreme Court, crystal clear on this issue when it rejected a Louisiana law which said that evolution could only be taught in public schools unless so-called creation science was taught with it.  Writing for the majority, Justice Brennan wrote the First Amendment does not permit the state to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma.

Bottom line, parents and religious schools, churches, synagogues, and mosques can guide kids and teach them a wide variety of theories.  But when it comes to public schools, there‘s only one theory, evolution, if separation of church and state is to have any meaning.  One of my guests will not agree.

Matthew Staver, an attorney who‘s argued before the U.S. Supreme Court, and is president and general counsel of Liberty Council, a conservative non-profit group and Reverend Barry Lynn, who is executive director of Americans United for Separation of Church and State and attorney and the co-author of “The Right to Religious Liberty: The Basic ACLU Guide to Religious Rights”.

Gentlemen, thank you very much for joining us.  Mr. Staver...

UNIDENTIFIED MALE:  Thank you.

ABRAMS:  ... what am I missing on this one?  I thought the U.S.

Supreme Court was pretty clear on this.

MATTHEW STAVER, PRESIDENT, LIBERTY COUNSEL:  Well, in the case you‘re talking about in 1987, Edwards v. Aguillard, the court specifically said that its decision should not imply that you could not critique these kinds of theories.  And in fact, that‘s not what the decision was about.  That case actually required the prohibition of the teaching of evolution and you could only teach it if you taught creation science.  So if you didn‘t teach creation science, you couldn‘t teach evolution at all.

But the court clearly left open the idea that theories such as evolution could be scientifically challenged.  I think in Georgia, that‘s really what this case is about.  This shouldn‘t be pigeonholed as a religious issue or a religious controversy.  It should be look at for what it is, a discussion on the issue of evolution.  In fact, the actual disclaimer says that the textbook contains material on evolution.

Evolution is a theory and not a fact regarding the origin of the universe.  It goes on to say the next sentence that there ought to be approached with an open mind.  I think we can all agree that it is not an established fact.  There‘s contentious issues on both sides and we ought to look at this open mindedly and not pigeonhole it...

ABRAMS:  Which scientific—I mean if you say it‘s not at religious issue, let me ask you a scientific question.  Which scientific papers, et cetera, journals, have come to the conclusion that evolution is probably the wrong answer?

STAVER:  Well, I think a lot of evolutionists, even Neo-Darwinists, question many of the theories.  In fact, that‘s why we have Neo-Darwinism because the theories of Darwin didn‘t pan out, and so now you have a Neo-Darwinism theory...

ABRAMS:  Wait.  But that‘s not suggesting that it—that‘s still not the answer to the question, which is which scientists have concluded that evolution—forget about aspects that have come over, over the years, but evolution as a whole, is there any current science—and you‘re the one who said it‘s not religious, so I‘m trying to focus on the science...

STAVER:  There‘s...

ABRAMS:  ... yes, go ahead.

STAVER:  Yes, Dan, there‘s a two-volume set by Wendell Byrd, and it‘s called “The Origin of the Species Revisited” and it has two volumes chock full of information that questions the theory of evolution by evolutionists themselves.  And I‘m not saying that they‘re not saying that they don‘t ultimately believe in evolution, but the issue ought to be more objectively considered instead of looked at as complete dogma considering which you can never object, you can never question, and I think that‘s where it‘s come today.  We‘ve come 180 degrees post the Scopes trial.

ABRAMS:  See Reverend Lynn, the problem I think is that the only other option is religious.  I mean I‘d be happy to discuss evolution and whether it makes sense, et cetera, but I‘m looking for some other option here outside of a purely religious one.

REV. BARRY LYNN, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE: 

No, there really isn‘t.  This is all a battle about religion from the same people who tried to ban evolution, then to give so-called equal time to this pseudo science creation, science and evolution.  And on the science, you know, Matt‘s just plainly wrong.  And I‘m not a scientist.  None of us are scientists.

But if you read the latest issue of “National Geographic”, the cover story is “Was Darwin Wrong”.  The first word of the article is no.  That‘s because all of the evidence is tending in precisely direction, Dan that you‘re talking about, evolution.  There isn‘t any evidence pointing in the opposite direction.  This is all about whether science teachers, science professors, and scientists get to write school books and not try to undercut with this religious dogma the idea that a theory in science means, of course, that you collect a lot of facts and this is a unifying principle.

It‘s not a guess.  It‘s not a hunch, and no scientist in his or her right mind honestly believes that this is not fundamentally a religious issue.  And Dan, just one other point, you can, in fact, talk about creation stories from a multitude of religions.  It ought to be to be in a social studies class, not in a biology class like Mr. Staver...

ABRAMS:  That‘s my concern Mr. Staver.  I don‘t see how you can teach any sciences, because any science you can sit there and talk about the debate, et cetera, and then I think kids are basically going to be taught science where everything is going to have a “but.”  There will be no hard-core facts when it comes to science, because you can always make the argument that there are other ways to look at science.

STAVER:  Well no, for example, there‘s no way to look at gravity in two different ways.  The law of gravity is the law of gravity.  The law of thermo dynamics is the law of thermo dynamics.  There‘s no theories on that.  There‘s no question on that...

(CROSSTALK)

ABRAMS:  I‘ll bet there‘s some religious arguments as to sort of rising, et cetera, and, you know, for example, you know, in religious, there have been, you know, discussions about whether people have risen, and you could say that defies gravity.

(CROSSTALK)

LYNN:  Dan, Dan, you‘re absolutely right...

(CROSSTALK)

LYNN:  Matt, if I could just finish this point...

ABRAMS:  No, let me—I‘m sorry, I was directing that to Mr. Staver. 

Let me just let him quickly respond, then you Reverend...

STAVER:  That‘s not a gravity issue.  And I think if you go back to the case here at Cobb County, all this case says is if a teacher, for example, can stand up in front of a biology class and say, you ought to approach this issue with open minds, there are people that disagree, even who are Neo-Darwinianists.  That‘s all...

ABRAMS:  Reverend Lynn, final word on this.

LYNN:  Yes, another point is the theory of gravity, like the theory of evolution, is being refined on a regular basis.  All you need to do is read the newspapers and you see that people who think seriously about this are moving the science forward.  But this is a battle about religion.  This is one more example of the so-called religious right trying to use clout to cloud an important issue.  And if our kids and the kids in our public schools are going to compete in the 21st century with children around the world, we cannot ignore this cornerstone of science...

(CROSSTALK) 

ABRAMS:  Since I took on Mr. Staver, I have to give him the final word.  Go ahead Mr. Staver...

STAVER:  But Barry, you don‘t move science forward by elevating theory to dogma and that‘s what we need to do on this issue...

ABRAMS:  Got to wrap it up...

(CROSSTALK)

ABRAMS:  ... interesting discussion.  Matthew Staver and Reverend Barry Lynn, thanks to both of you, appreciate it.

LYNN:  Thank you.

STAVER:  Thank you.

ABRAMS:  Coming up—many of you writing in asking whether there‘s any way Scott Peterson could take the stand next week to try to convince jurors to spare his life.  Your e-mails and “My Take” coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, what does telling the truth get you on Capitol Hill if you‘re a moderate Republican who wants to be chairman of the Judiciary Committee?  Well it gets you a whole lot of trouble and a major political fight.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—the hazing of Republican Senator Arlen Specter.  Many other Republicans in the Senate treating the senior senator from Pennsylvania and one of the most senior members of the Senate as a whole lot like a fraternity pledge.  Specter is in line to become the chairman of the prestigious Judiciary Committee.  His seniority should mean he chairs the committee that reviews President Bush‘s judicial nominees.

Senator Specter has also devoted much of his career to focusing on the courts and other legal and justice-related issues.  And being a moderate Republican, he would seem the perfect bridge between frustrated Democrats and more conservative Republicans.  But it seems some in the Senate have no interests in bridges or the senator‘s experience.

No, they want to make sure that the Senate‘s constitutionally mandated role of advising consent will mean consent only.  Never question the president.  Never say no.  Senator Specter (UNINTELLIGIBLE) he‘s too well independent.  His sin?  Intellectual honesty.  When asked about potential Supreme Court nominees who would seek to overturn Roe v. Wade, Specter said they would have a tough time not because he would oppose them, but because the Democrats would.

Quote—“The president is well aware of what happened when a bunch of his nominees were sent up with a filibuster”, referring to Democratic filibusters that prevented up or down votes on some of the president‘s most controversial nominees.  It seem even discussing that reality in the Senate is akin to saying candy man, and that horror movie of the same name, where if you say candy man in the mirror, the candy man comes out and kills you.

You have to avoid even using the word.  So far, Specter‘s analysis of the realities of the Senate has led majority leader Republican Bill Frist of Tennessee and others to withhold support for Specter.  Frist has instead suggested Senator Specter lobby his colleagues, making Senator Specter a sort of Senate parolee, forced to plead for mercy.

As I‘ve said before, in the campaign the president promised he would nominate judicial conservatives.  The Senate Democrats should expect that and prepare to confirm the vast majority of them.  But Senator Specter should not be forced into a political purgatory because he recognizes that if a hard core litmus test is used to select the president‘s judicial candidates, there could be trouble with the Democrats.  Just saying that shouldn‘t mean his colleagues jump out of the mirror at him.

I‘ve had my say, now it‘s time for “Your Rebuttal”.  Many of you writing in about various aspects of the Scott Peterson verdict, convicted of first-degree murder for the killing of his wife Laci, second-degree murder for their unborn son.  The jury now decides whether Peterson gets life or death next week.

Jimm McIver in Seattle, Washington with a question.  “Is it possible that Scott would take the stand in the penalty phase and say that Laci and Conner‘s death was an accident, but he then panicked and covered it up?”

No way.  For three reasons.  First, it is not what the jurors are convinced happened—premeditated murder.  Two, it would hurt his appeal because anything he says can be used against him.  And third, he‘s not exactly credible.

I said many believed this was a stunning verdict coming only a half day after the jury foreman was dismissed from the case.  The jurors were told to begin deliberations all over again.

Lena in Michigan.  “I was shocked to hear that a jury that took five months to hear evidence could take four to five hours to convict someone.”

Well, Lena, let‘s be clear.  While the jurors are told to begin deliberations again when a juror is replaced, that does not mean they have to pretend the other 11 do not know exactly where everyone else on the jury stands, so it moves more quickly.

Gillian Reynolds in Rochester, Minnesota.  “I am stunned that you keep saying everyone is stunned about the guilty verdict in the Scott Peterson trial.  It seems to be only the legal analysts that are stunned.”

All right, Gillian, fair point.  Let‘s remember, I thought and I said it, either conviction or hung jury going into the deliberations.  More likely hung jury.  Then after the jurors were dismissed, I was convinced the jury would be hung.  That‘s the only reason it was stunning to me.

Finally, Mark Luedtke writes this after the verdict and after I admit I was wrong.  “I was surprised to hear you repeat your Johnny-come-lately hung jury mantra tonight.  I believe you were steadfastly pro-prosecution.”

Mark, you think that after the guilty verdict, I wanted to make it clear I was wrong and say I thought it would be a hung jury just to verbally flog myself again?  And remember, I was wrong about what would happen, not what I thought should happen.

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

A reminder, don‘t forget about our blawg—b-l-a-w-g—blawg about justice.  You can get it thorough our Web site, abramsreport.msnbc.com.  Click on “Sidebar” and hear some of favorite lawyers, our staff, from me.  While you‘re on the Web site, take a quiz, see how much you actually know about the case.

And of course you can sign up to get our daily newsletter.  Be first to know what stories we‘re covering.  Coming up next, “HARDBALL” with Chris Matthews.  Chris has more on that Marine shot—who shot and killed an unarmed Iraqi militant in Fallujah.

Thanks for watching.  I will see you tomorrow.

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

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