updated 11/30/2004 1:42:04 PM ET 2004-11-30T18:42:04

Guest: Marc Klaas, Larry Jones, Paul Callan, Daniel Horowitz, Bob McNeil, Jim Thomas, David Evans, Robert Raich, Dr. Peter Sederberg, Steve Emerson

DAN ABRAMS, HOST:  Coming up today, California Supreme Court denies Scott Peterson‘s request for a new jury and a new place to decide whether he should live or die.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Now, the same jury that convicted Peterson will hear from Laci Peterson‘s family expected to take the stand tomorrow as prosecutors try to convince them the death penalty is the punishment that fits this crime.  We talk to a juror who had to make that same decision.

And a setback for Michael Jackson‘s legal team—the judge says they cannot force the alleged victim and his family to take psychological tests.  As for medical records, why does the defense team need gynecological records from the alleged victims mother?

Plus medical marijuana, you‘d think after California voters passed a law allowing it, that it would be well allowed.  Not according to the feds who raided one woman‘s home and destroyed her precious plants.  Now the U.S. Supreme Court is getting the dope from both sides.

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket, a few hours ago the California Supreme Court denied Scott Peterson‘s last-ditch effort to further delay the penalty phase—the court refusing to hear arguments over whether a new jury and a new place should decide whether he lives or dies.  Tomorrow morning, almost six months to the day since opening statements, the final chapter.  When jurors are back in the jury box expect to see boxes of tissues with testimony expected from both Laci and Scott‘s family and if the state gets its way, a videotape from Laci Peterson‘s funeral.

Joining me now a friend of this program, Marc Klaas, the father of 12-year-old Polly Klaas, who was kidnapped and murdered 1993.  Marc Klaas is also president of BeyondMissing.com.  And a man who has been in the same position as the 12 people who will decide Peterson‘s fate, Larry Jones was a juror on a California death penalty case. He was also ironically juror number five.

Gentlemen thanks very much for joining us.  We appreciate it.  All right...

UNIDENTIFIED MALE:  Sure.

ABRAMS:  ... Marc, let me talk to you first about testifying in this phase of the case.  The night before you were set to testify, what was going through your head?

MARC KLAAS, BEYONDMISSING.COM PRESIDENT:  Well, the fact that I had been denied from making any statements for a long time.  I mean, in this case we have to remember she has been under a gag order.  She sat through a trial that was five months of excuses and justifications for the death of her child, that, you know, her emotions have run very, very high as this thing has been dissected and reconstructed time and time again.

And this is going to be her very first opportunity to talk about how this has impacted her life.  So I‘m sure that she will choose her words very, very carefully, that her emotions will run very, very high and that she will hope to convince the jury of whatever it is she is hoping their final decision will be.

ABRAMS:  Marc, I don‘t want to play the sound from Davis, you have heard it too many times and it upsets me too much to even play it.  So I‘m just going to play what you said in court to him at that time and then I want to ask you a question about it.

KLAAS:  Sure.

(BEGIN VIDEO CLIP)

KLAAS:  He must die and Mr. Davis when you get to where you‘re going, say hello to Hitler, say hello to Dahmer and say hello to Bundy.

(END VIDEO CLIP)

ABRAMS:  Marc, had you thought all that out beforehand or did it just come emotionally?

KLAAS:  Well, actually, I did think it out.  That actually happened during the victim impact statement, not as I was testifying in the penalty phase of the trial.  And those were actually the only words that I have ever spoken to Richard Allen Davis.  My testimony and my victim impact statement were primarily aimed towards the jury, towards the public and towards the judge so that the final outcome would be what I want.  I always felt that he couldn‘t care less what I said and I believe, you know, I believe the facts shortly after that proved that out.

ABRAMS:  So you don‘t expect that we‘re going to see Sharon Rocha go after Scott Peterson in that manner, do you?

KLAAS:  Well, I really wouldn‘t know.  I mean you know, the one thing that separates what happened in our case from this case was that this guy was family, that this was...

ABRAMS:  Yes.

KLAAS:  ... the ultimate betrayal.  I mean he took her daughter.  He took her grandchild.  He lied to her for all of this time and continues to do so.  I think she is pretty much justified in doing and saying whatever it is she likes.  I just hope that she can hold on emotionally.

ABRAMS:  Yes, me too, me too.  Larry Jones, as a juror in a case where you are evaluating the death penalty, you know, you hear about the crime itself and that in and of itself has got to be awful because you have already found the person guilty and you believe that the person, you know, committed such a horrible heinous crime, what was it for you that led your jury not to find that the death penalty would be appropriate and instead to vote for life in prison?

LARRY JONES, FORMER DEATH PENALTY JUROR:  Well, in the case that I was a juror on, we looked at his past record, whether he was considered the worst of the worst which is what the prosecution and the defense also puts out there for us to consider.  And it was quite evident very early on that that was not going to be the case.  He didn‘t have a prior history and while my case also dealt with the death of someone very close to the defendant, it was a decidedly different case than what the Peterson case is.

ABRAMS:  Do you think the Peterson case is worse than the one you were involved in?

JONES:  Actually, I think that it is worse in that I can‘t imagine

taking my own while child‘s life much less my wife‘s life.  The

circumstances in the case I was in, the victim also was a less likeable

character than Laci Peterson, so quite a juxtaposition between the two

cases,

ABRAMS:  What did the family think in the case that you were involved in?  Did the family of the victim want the death penalty?

JONES:  The family of the victim did want the death penalty, however the family of the victim had also been estranged from the victim.  So their testimony while poignant was not as—I think would not be considered as important as what potentially we‘re going to hear from Sharon Rocha.

ABRAMS:  Was it a close call?  Were you unanimous back there?

JONES:  No, it was absolutely unanimous and it took about 10 minutes to decide.

ABRAMS:  Not a single person saying look, we have got to consider death as a real option here?

JONES:  No, and one of the things I found as a juror is that you don‘t decide justice.  What you do is you use the definition of the law and it really takes a lot of the decision making out of the hands of the jurors.  And in a prolonged case like I was on and a case that has been as long as this one, a lot of times I find that—or certainly in my case that the jurors wanted to make an easy decision and did not want to have to wrestle with it in their conscience.

ABRAMS:  Marc Klaas, finally, advice for Sharon Rocha?  Has she called you?  Have you spoken to them about this?  If not, what would you say to her?

KLAAS:  No, I have not spoken to her.  The only one I have spoken to is Jackie Peterson after an appearance on your show and what I would just remind her of is that the world is looking to her for guidance on this and that I hope she continues to conduct herself with the dignity and respect that she has displayed throughout...

ABRAMS:  Are you talking about Jackie...

(CROSSTALK)

ABRAMS:  I‘m sorry—Jackie or Sharon you‘re talking about...

KLAAS:  No, I spoke—I‘m sorry.  I spoke to Jackie but my words to Sharon would be that the world is looking to you for guidance on this and that I hope you conduct yourself with the dignity and respect that you have shown throughout this entire ordeal.

ABRAMS:  All right, Marc Klaas, always great to have you on the program.

KLAAS:  Thank you.

ABRAMS:  Larry Jones, thanks a lot for taking the time.  Appreciate it.

JONES:  Certainly.

ABRAMS:  Coming up—all right so we know how important the family‘s testimony is going to be.  You‘ve heard from a juror.  You‘ve heard from a family member.  What are the lawyers going to do to prepare the Rochas, even the Petersons, to take the stand?

And while many may wish they could give Michael Jackson a psychological examination, the judge ruled in this case today that Jackson‘s lawyers cannot force the alleged victim and his family to get psychological exams.  That‘s not stopping Jackson‘s lawyers from continuing in some bizarre request.

Plus, pot is on the docket at the Supreme Court—California voted to allow medical marijuana.  The feds say they know better.  Now it‘s up to the high court to decide.

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Laci Peterson‘s family expected to take the stand tomorrow in the penalty phase of the case.  How do you prepare for something that‘s pure emotion like that?  It‘s coming up.

(BEGIN VIDEO CLIP)

BRENT ROCHA, LACI PETERSON‘S BROTHER:  We talked about our children growing up together and spending summers at each other‘s house.  Now that you and Conner have been taken away from me, I realize that my children will not have cousins to grow up with and family events will feel very lonely without you and Conner.

(END VIDEO CLIP)

ABRAMS:  Brent Rocha, the brother of Laci Peterson.  That‘s the kind of testimony we‘re going to see on the witness stand.  It is going to be tear-jerking.  There are going to be people in tears.  It‘s going to be emotional.  And so the question that I want to know is how do lawyers prepare the families, both sides, to take the stand?

Joining me now to tell us, you know, what they have done in the past and how they deal with it in this kind ever case, Daniel Horowitz, a criminal defense attorney, handled many death penalty cases and former New York prosecutor Paul Callan joins us as well.  Thanks.  Good to see you.

All right.  Paul, how do you prepare?  Let‘s start it from the prosecution‘s side.  The family you know they‘re going to be ready to break down.  I mean how can they not?  And what to you say to them when you prep them for this phase of a case?

PAUL CALLAN, FORMER PROSECUTOR:  It‘s a very difficult job for a prosecutor because you don‘t want to go over the top in the sense that you don‘t want to put a witness on the stand who is just going to break down and be crying the entire time they‘re on the witness stand.  You‘ve got to work with them so that they get their emotions...

ABRAMS:  Do you prep them beforehand?  Do you go through the questions beforehand...

CALLAN:  Oh absolutely.  Absolutely.  You are going to go through all of the questions beforehand.  You‘re going to go through what questions you think might be asked on cross-examination, although I doubt that very many will be asked.

ABRAMS:  Yes.

CALLAN:  And in the end what you want to do is you want to elicit stories about the deceased that are going to really tug at the heartstrings of the jurors and make sure that—you know you don‘t mine if the witness loses some control...

ABRAMS:  Well that‘s what I was going to say.  Do you say to them look, if you feel like crying, go ahead or do you say try to keep it together?

CALLAN:  No, I think a prosecutor, he is not going to say to a witness cry on the witness stand but he is certainly not going to discourage it.  I think the purpose of a practice session is so that the witness can get it together so that if they are going to cry, it‘s going to be a limited situation as opposed to just breaking down and being unable to give substantive testimony...

ABRAMS:  Daniel Horowitz, in this case, the Peterson family is in sort of a very precarious position, right, because they have testified already for the defense in the guilt phase offering up, you know, other explanations for what seemed like incriminating evidence against Scott Peterson.  And so now, they have to put that aside in a way and somehow get these jurors to just focus on them as parents, right?

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  That‘s exactly it, Dan.  What they have to do and what Geragos has to do is tell the parents, look, get on the stand.  Don‘t justify the crime.  Don‘t minimize the crime.  Look at that jury and just open your heart.  Be a bare hurting soul.  I mean you have to strip away the mask that you have worn throughout the trial and be what you are, terrified people, hoping, praying that these people will not kill your son.

ABRAMS:  And Daniel, I‘m expecting more defense witnesses in this case than prosecution.

HOROWITZ:  I hope so, Dan.  I mean the prosecution will have four, just the Rocha family, Brent, Amy and the parents.  The defense can put on anybody and anything from a coach, from the next-door neighbor, family, friends.  This jury wants to know why did Scott Peterson do this and is there anyone who exhibit in that—behind that smiley face other than this lurking murderer.  Is there really a sweet little boy there or is it all a facade.  That‘s what Geragos has to show this jury that there is someone there worth saving.

ABRAMS:  Paul, do you cross-examine those witnesses, the friends, family of the defendant?

CALLAN:  Oh absolutely.  The prosecutor is going to go after them you know...

ABRAMS:  Yes?

CALLAN:  Oh I think so...

ABRAMS:  With just one question, which is, did you know that he had killed his wife...

CALLAN:  Well, you‘ll ask that.  But you know what?  There may be other incidents that have not come out at the trial that the prosecutor knows about.  You know you put a friend of the defendant on the witness stand, testifying about his good character, if the prosecutor has done his homework, he may find out that there are a number of things showing bad character that this witness knows about, you are going to ask them about...

ABRAMS:  Daniel, that‘s what makes this different is up to this point there has been a real concerted effort to say this is not a trial about whether Scott Peterson was a good or bad guy.  Now it is a trial about whether Scott Peterson is a good or bad guy.

HOROWITZ:  In a way Dan—now Larry Jones, your previous guest, said that the jurors follow the law.  The law says that they can only consider the factors in aggravation, which is circumstances of the crime.  Then in mitigation the family puts on how wonderful a person Scott is.  The prosecution can try to knock that down and take it off the table, but they cannot ask the jury to consider these other bad acts that he might have been a bully against Scott on death.  Does the jury follow it?  I don‘t know.

CALLAN:  It‘s very hard for the jury to make that distinction.  I mean that‘s a lawyer‘s distinction.  But in truth, the prosecutor can demonstrate that he is a bad guy.  That you shouldn‘t take into consideration these mitigating factors because in fact he is a bad person...

ABRAMS:  Paul very quickly, is it going to be tough, do you think, to find 12 jurors unanimously to find Peterson should get the death penalty...

CALLAN:  I think on balance they have a good shot at getting a death penalty in this case because of the nature of the crime.

ABRAMS:  Wow.  All right.  I‘ll be surprised but you know, look, I didn‘t think they were going to reach a verdict, so what do I know?  All right, Paul Callan, Daniel Horowitz, thanks a lot.  Appreciate it.

Coming up, with a little more than a month to go until Michael Jackson‘s trial is set to begin, it‘s getting ugly inside that courtroom—the defense asking for the alleged victim‘s family‘s medical charts, some of the relatives, including gynecological records.

And voters in California said citizens in their state can smoke pot if approved by a doctor.  The federal government is just saying no.  The Supreme Court heard arguments today and you will get to hear the lawyers duke it out here as well.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  Prosecutors in the Michael Jackson case went to court today hoping to limit Jackson from getting certain very personal items of the alleged victim‘s family including, x-rays, lab tests, MRI films, ultrasounds, billing records, medical exam records, medical diagnosis and history of medications, gynecological records, and 23 years of military records for the alleged victim‘s stepfather.

The judge may already have some of these records but it‘s not clear which ones.  Also today, Judge Melville would not even hear arguments over whether Jackson‘s accuser and his family should have to undergo psychological tests by defense experts.  When it came to the records, he ruled the defense must now notify the people who are the subject of those documents.  The documents were subpoenaed (UNINTELLIGIBLE) duke it out.

All right, “My Take”—the defense had to know that they would lose this motion.  There was no way the judge was going to let the defense pick an expert and then let that expert question the alleged victim‘s family members or even the alleged victim himself.  And even if you assume these allegations are false or exaggerated, how does that explain the need for gynecological records?

Here to discuss, Jim Thomas, former Santa Barbara County sheriff who led the ‘93 investigation into the case.  He is also an NBC News analyst.  He was in the courtroom today.  And Bob McNeil, a Los Angeles based criminal defense attorney.  Bob, good to have you back on the show.

All right...

UNIDENTIFIED MALE:  Hello Dan.

ABRAMS:  All right, let me start with you Bob.  What am I getting wrong here?  I mean this seems to me sort of a crazy request here—gynecological records and yes they want to do their own psychological examination of the victim‘s mother.  I know why they want to, but they‘ve got to know they were going to lose this.

BOB MCNEIL, CRIMINAL DEFENSE ATTORNEY:  Dan, I hate to say it but I have to say that I agree with you and I think that this is like a big shot gun and trying to shoot bird shot out at everything and not narrowing down what it is they really need.  But let‘s not lose sight of the fact that the defense has this fundamental right to cross-examine the prosecution witnesses.  And they‘re going to have to have the information so that they can do that and the judge is not going to deny any legitimate request for information to enable the defense to conduct a full, aggressive, vigorous cross-examination of any prosecution witness, including a psychiatrist or a psychologist...

ABRAMS:  Right.  OK, fair enough.  And that was the reasoning that the defense gave here was they said we want our own experts to psychologically evaluate this alleged victim and his mother and maybe some other family members to determine whether the psychological analysis of them by their own experts before this case started was valid, we want to be able to cross examine, but this is going too far.  And what about this business about the gynecological records?  I mean this just seems to me—how you could you even possibly justify, what, maybe she had missed a court date they‘re going to say because she said she had to go to the gynecologist and that‘s going to prove that she‘s lying about going to the doctor or something?

MCNEIL:  Dan, that‘s why I think that the defense has to be very careful that they don‘t lose credibility in this judge‘s eye, also in the public eye by making a gross request for documents that have no relevance to the case.  You know perhaps maybe something in there has to do with some dates of hospital visits as it conflicts with other things the mother said.  But it‘s hard for me to imagine how those documents can be relevant to the defense pursuit in this case.  Even though...

(CROSSTALK)

MCNEIL:  ... you know, I look at it from a defense perspective.

ABRAMS:  Let me go to Jim Thomas here, but first let me read you this from—this is from the defense motion...

Mr. Jackson cannot effectively cross-examine and confront prosecution expert witness psychologist Stanley Katz unless he‘s permitted equal access to the subject matter of the expert‘s mental examination.  It deprives Mr.  Jackson of a Sixth Amendment right to confront and cross-examine expert witnesses against him.

I guess today in court today, Jim, didn‘t buy it.

JIM THOMAS, FMR. SANTA BARBARA COUNTY SHERIFF:  Well that was settled fairly easily.  In fact, it was probably the shortest court hearing we‘ve had a little under two hours today and it took the judge about maybe 15 seconds to say that the issue of the defense being able to give mental examinations to the victim and to the family was denied, and there was no further discussion.

ABRAMS:  What about this business about the gynecological records and other medical records of not just the alleged victim, but I guess we‘re talking about—and we can put up number one here—the victim‘s sister, alleged victim‘s sister—I‘m reading from the quote says victim‘s sister and mother?

THOMAS:  Well one of the issues Dan was the issue of privilege and the prosecution saying that even though (UNINTELLIGIBLE) order was signed back in July, the idea of not only sending a subpoena but also a restraining order which would prevent the holder of the records to notify their client that the records were even subpoenaed was too broad and went too far.  Because then if the person did not know that the records had been subpoenaed they would not be able to reach the court...

ABRAMS:  Yes.

THOMAS:  ... and say wait a minute.  We think this is an issue of privilege.

ABRAMS:  Jim, you are an insider there.  Any chance this case is going to settle before trial?

THOMAS:  Not a chance.  Not a chance.

ABRAMS:  No way (UNINTELLIGIBLE).

THOMAS:  No way...

MCNEIL:  Never say never.

ABRAMS:  Bob, you got any inside info on that or is that just a guess?

(CROSSTALK)

ABRAMS:  You know everybody.

(CROSSTALK)

ABRAMS:  Bob McNeil knows all the highfalutin lawyers in L.A. and stuff.  Bob, you got any insight?

(CROSSTALK)

MCNEIL:  Never say never.  No, you know what?  One thing—I did have a case with Brian Oxman and I‘ll tell you, I think the defense needs to kind of put him in check in terms of filing motions and just make sure that whatever he does is very credible so that they don‘t lose face with the public and with the judge in this case.  This is a very important case because, you know, prosecution is going after a real, really very successful man who has made a lot of contributions to the music world and to society.

ABRAMS:  Jim Thomas and Bob McNeil, thanks for coming on the program. 

Appreciate it.

UNIDENTIFIED MALE:  OK Dan.

ABRAMS:  Coming up, states‘ rights advocates and marijuana smokers go on a trip to the Supreme Court together.  Californians voted to allow medical marijuana.  Washington says what are you smoking?  We hear from both sides.

And al Qaeda speaks again—the number two man saying they won‘t hurt Americans if we‘ll just change our policies towards the Muslim world.  Last time I checked they were terrorists, not diplomats.  I say don‘t believe a word of it.

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, medical marijuana, Californians voted to allow people who need it to smoke it.  The feds say no.  Now the Supreme Court will decide and we‘ll debate, but first the headlines.

(NEWS BREAK)

ABRAMS:  We‘re back.  In the straight-laced halls of the U.S. Supreme Court, there were probably a couple of jackets that still wreak of the wacky weed.  The justices heard arguments over medical marijuana today, but there was plenty of tough talk both inside and outside court about whether Congress has the right to override laws in 11 states that allow for medical marijuana in some cases.

Attorney Randy Barnett who brought the case on behalf of two women who use marijuana medicinally says it‘s just about freedom.

(BEGIN VIDEO CLIP)

RANDY BARNETT, ARGUED FOR ALLOWING MEDICAL MARIJUANA:  The existence of states and states‘ laws protects liberty and in this case it‘s the liberty of people to use medical cannabis provided that their activities are regulated according to state law and strictly for medical use.

(END VIDEO CLIP)

ABRAMS:  And one of the women he represents said the case was about life and death.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  No matter what the justices do, I unfortunately cannot stop using cannabis because if I do, I would die.

(END VIDEO CLIP)

ABRAMS:  “My Take”—first, let‘s be clear.  This is not about legalizing marijuana.  In fact, it‘s not even about legalizing medicinal marijuana.  It‘s about whether Congress can tell the California voters in particular that they cannot pass this kind of law.  That‘s the issue behind all the smoking mirrors, whether Congress under the commerce clause of the Constitution can take legal use of marijuana off the books in 11 states including California whether voters approved it, directing a referendum in 1996.

Now if the court is going to be intellectually honest and continue along the lines of a number of recent rulings, it will rule that this federal law does not impact any economic activity and therefore, allow ailing Californians to keep their weed.  Robert Raich is a lead attorney for the plaintiffs in this case.  One of them is Angel Raich, his wife, one of the women you saw just now in front of the Supreme Court.

And David Evans is an attorney for the Drug Free America Foundation, who contributed a friend of the brief—a friend of the court brief supporting the federal government in its opposition to medical marijuana.  OK, gentlemen thank you very much for coming on the program.  Appreciate it.

All right, Mr. Evans, you know, tell me where am I getting this wrong?

DAVID EVANS, DRUG FREE AMERICA FOUNDATION:  Well you‘ve got it wrong in a lot of different ways.  First of all, I would take issue with your presumption that this is not about legalizing marijuana.  The people that have been advocating legalization of marijuana for years have said that they are going to use the medical marijuana as a red herring to give marijuana a good name...

ABRAMS:  But whether they are doing or not, that‘s not what the U.S.  Supreme Court is resolving.  The U.S. Supreme Court is not going to be resolving what their intent was in bringing this.

EVANS:  Well, not in terms of drug legalization.  But the Supreme Court is going to be looking into the issue of whether or not marijuana is a suitable medicine because that is one of the arguments that the proponents used to say that it should be taken out of the commerce clause.  The commerce clause, as you‘re aware, is what gives the federal government the right to regulate certain economic activities and they are saying that because it‘s for personal medical use it‘s taken out of that category.

So medical use of marijuana is an issue and our position is that if you are going to approve a medicine, you should use the federal drug approval system set up under the Food and Drug Administration and not do it by state ballot initiatives.  State ballot initiatives, particularly what they did in California can be easily swayed by putting in massive amounts of money for advertising, which they did in California.  They put in over $30 million dollars.  A couple of billionaires who were in favor of drug legalization, George Soros is one of them...

(CROSSTALK)

EVANS:  ... put a lot of money in, put in slick advertising, and the good people of California acting out of compassion were misled and voted for this.

ABRAMS:  That‘s a very condescending comment towards the people of the California, though, isn‘t it?  I mean even...

(CROSSTALK)

ABRAMS:  ... you know, look, even if you disagree with something...

EVANS:  I said they were...

ABRAMS:  ... you can say at least the people believed it.  I mean you‘re basically saying they don‘t they don‘t know what they believe and they got fooled.

EVANS:  No, no, I did not say that.  I said they acted out of compassion and...

ABRAMS:  But they got snookered.

EVANS:  ... they did not have an opportunity to hear from the other side.  And where we have been able to go in those states and present the other side of this issues, they have not been able to do this...

ABRAMS:  All right, Mr. Raich...

EVANS:  ... and there is another side to the issue...

ABRAMS:  ... I agree with your side‘s position in this case.  What about the problem here that this case, if you win, could lead to a lot of federal laws that a lot of people like and probably a lot of people that you associate with and support a lot of the same causes that you support like may be invalidated using the same rules?

ROBERT RAICH, PLAINTIFF‘S ATTORNEY IN MEDICAL MARIJUANA CASE:  We need to realize that this case is about a very limited kind of situation.  We have a state, which has allowed the medical use of cannabis on a doctor‘s recommendation.  Our case involves a situation where no commerce is taking place.  There is nothing that crosses state lines at all.

ABRAMS:  But you know that that‘s a very—look, just so my viewers understand, a lot of conservatives have been very angry over the years about how the commerce clause has been expanded to define just about everything, and now it seems—and look, I don‘t know what your politics are, but my guess would be that a lot of people who support you would probably not want the commerce clause to be used to say hey, everything can be a federal law.

RAICH:  What we have here is a commerce clause that has been used to, you are right, support a number of environmental laws, anti-discrimination laws.  Those laws will not be affected...

ABRAMS:  Why not?  Why shouldn‘t they be?

RAICH:  ... by the arguments in this case.

ABRAMS:  Why shouldn‘t they be?

RAICH:  I suppose they could be.  It depends on how broadly the court were to rule, should it rule in our favor.  However, say in environmental laws, virtually everything that affects the environment is one way or another connected to commerce.  There are few things you can say that aren‘t perhaps individual—hunters, perhaps hunting animals, but pollution?  That‘s an economic activity.  Driving cars that are bought and sold in interstate commerce, that is an economic activity...

ABRAMS:  But I‘ll bet you when I ask Mr. Evans this question, he‘s going to be able—because you can always do it.  Mr. Evans, go ahead.  Take it away.  I‘ll let you—I‘ll set you up on this one.  How would marijuana affect commerce?

EVANS:  Well I—let me just say the marijuana policy project which has been one of the main supporters of Mr. Raich‘s case, if you‘ll go on their Web site and you look at their mission statement, the second issue that they raise is economic effects of marijuana.  They talk about being able to raise revenue by taxing marijuana businesses, keeping money in a legitimate U.S. economy and permitting domestic cultivation of marijuana-based industrial hemp and so forth.

So the marijuana policy project sees marijuana as a commodity of commodity.  In fact it could be taxed.  They say that...

(CROSSTALK)

EVANS:  ... in their own mission statement.  Marijuana is a commodity.  It does goes back and forth in interstate commerce.  If you‘re going to supply marijuana to people, where are you going to get it from?  They can‘t all grow it in their backyards and everybody has the capacity to do it.  The other problem that disturbs me about this if you allow them to grow marijuana for their own medical needs, why not opium poppies?  Why not cocaine...

ABRAMS:  Because they haven‘t—because a doctor hasn‘t said you need that for your medical treatment.

EVANS:  But the same principle applies.  That if a doctor recommends that cocaine would be helpful...

(CROSSTALK)

ABRAMS:  Yes...

(CROSSTALK)

ABRAMS:  All right...

(CROSSTALK)

ABRAMS:  ... but you know that the bottom line is that there‘s no way.  I mean that‘s just sort of one of these taking it to the absurd...

EVANS:  No, it‘s not.

ABRAMS:  Of course it is.

EVANS:  In Arizona they got an initiative through that covers all control dangerous substances including cocaine and opium...

ABRAMS:  All right.  The bottom line is...

(CROSSTALK)

ABRAMS:  ... any doctor who recommends cocaine or opium for their patients is going to lose their medicine license.  I mean that‘s the bottom line.

EVANS:  That's not accurate.

ABRAMS:  All right...

EVANS:  That‘s not accurate...

ABRAMS:  I look forward...

(CROSSTALK)

ABRAMS:  I look forward to seeing that doctor when that doctor does that, particularly cocaine.  I look forward to the doctor who prescribes cocaine for a particular ailment.  I‘ll invite him on the program...

EVANS:  It is a—cocaine is a drug that...

ABRAMS:  Oh I know what it is.  But the bottom line is...

(CROSSTALK)

ABRAMS:  But you are not addressing my question...

EVANS:  ... you can use it to treat a variety of conditions...

ABRAMS:  Right...

EVANS:  ... you use it for surgery.

ABRAMS:  Right, but wait until the doctor actually prescribes it.  That‘s what I‘m saying.  All right, anyway, thank you for coming on the program.  Appreciate it.  Mr. Raich and Mr. Evans thanks a lot.

Coming up, a new tape from Osama bin Laden‘s number two calling for the U.S. government to change its policies towards Muslims.  I say al Qaeda doesn‘t really care about how we run our country or our policies.  They just want mayhem.  We‘ll debate.

Plus, it seems the civil war is alive and well in Alabama.  Residents there are not willing to rid the state constitution of outdated references to separate but equal schools in its constitution.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Seems al Qaeda‘s number two managed to address the U.S. from his favorite soapbox today, the Arab language news network Al-Jazeera.  The latest from Ayman al-Zawahiri including—quote—“one last advice to America and the American administration.  You shall pick between two styles to deal with Muslims.  Either you deal with them, Muslims, based on respect and mutual interests or you deal with them based on permissible gain and looted land and humiliated sanctities.  This is your problem.”

A U.S. intelligence official says there is a high degree of confidence this is an authentic message from Zawahiri.  That‘s potentially a problem, given that in seven occasions in the past al Qaeda attacks have followed al-Zawahiri‘s statements within a month.  But the question is, is al-Zawahiri threatening the U.S. or putting on a show of trying to be reasonable?  His video follows one from bin Laden just before the election where he mocked the Bush administration but told Americans—quote—

“Your security is not in the hands of Kerry or Bush or al Qaeda.  Your security is in your hands.  Each state that doesn‘t mess with our security has automatically secured their security.”

And this tape may have come from that same time period.  “My Take”—it‘s just an attempt to smooth talk from two monsters whose spokesman once said that al Qaeda‘s plans including killing as many as four million Americans.  The terrorists of al Qaeda cannot be negotiated with or reasoned with in any way.  They have no tangible political goal short of forcing all nations to adopt Islamist regimes and any talk of their political goals must be viewed through the prism of their ideology, which calls for a fundamentalist Muslim super state and the defeat of the West.

To actually evaluate what they want is only useful really I think in assessing how to capture them.  But even considering policy changes based on anything, any of them say is national suicide.  I‘m joined by MSNBC analyst and terrorism expert Steve Emerson and by Dr. Peter Sederberg, a professor at the University of South Carolina and the Department of Government and International Studies.  He is an expert in terrorism as well.

Gentlemen, thanks very much for coming on the program.  Professor Sederberg, I know Steve‘s position on this.  I‘ve heard it many times.  Do you disagree with me on this?

DR. PETER SEDERBERG, TERRORISM EXPERT:  Well, Mr. Abrams, I‘m afraid you were breaking up quite a bit so I‘m not sure what your set-up was...

ABRAMS:  All right, well basically my position was that I don‘t think it‘s useful to even evaluate what al Qaeda is saying unless it is to capture them because I don‘t think that they have any real policy goals apart from murder and mayhem and hopefully in their minds creating Islamic regimes in as many nations as possible.

SEDERBERG:  I think that‘s an oversimplification of their goals.  Let‘s look at it from our perspective and what we‘re trying to do just simply in Iraq.  One of our major goals is to win over hearts and minds of the Iraqi people and this is a standard objective in any insurgency.  So let‘s just reverse...

ABRAMS:  But I don‘t think Iraq is a fair comparison.  It‘s really—and I apologize for interrupting you, but the bottom line is...

SEDERBERG:  Well...

ABRAMS:  ... we‘re talking about al Qaeda.  Al Qaeda—sure you can argue al Qaeda is now in Iraq, but al Qaeda—the making of Iraq was not al Qaeda.  We are talking about 9/11, which I view as a separate issue from Iraq.  We‘re talking about bombings in Spain.  We‘re talking about threats on the United States.  To me that‘s really a separate issue from Iraq.

SEDERBERG:  Well, I wasn‘t actually trying to focus on Iraq.  I was simply saying let‘s just look at it from al Qaeda‘s point of view and they are trying to influence hearts and minds as well.  Whose hearts and minds?  Well, you can sort of look at it as concentric circles moving out.  They have their fighters.

Then they have those who support their fighters and then they have sympathizers and then they have people who are essentially neutral .  All of these are primarily, although not entirely located within the 1.2 billion believers in the Islamic faith.  And then in addition to that they have their adversaries.  And so whenever they communicate, they could be communicating and their communication should be read as communicating on a number of levels.

And even this particular communication, there are some in the intelligence community who are interpreting this on a purely tactical level.  Noting that he has spoken before or often prior to, within four to eight weeks of another...

(CROSSTALK)

SEDERBERG:  ... significant attack.

ABRAMS:  And Steve...

SEDERBERG:  Well that‘s at the tactical level...

ABRAMS:  Hang on.  Let me bring Steve in.  Steve, the bottom line is I think that viewing it that way is fine, but the reality is it‘s all nonsense and lies.  It‘s all pure hypocrisy and efforts at changing their tune.

STEVE EMERSON, MSNBC TERRORISM ANALYST:  Dan...

(CROSSTALK)

EMERSON:  ... you have obviated the need for me to be on the program because you have said exactly what I think is actually occurring here.  Look, there‘s no doubt as the professor might have I think stated that he may be appealing to Muslim audiences, but his message is basically you will listen to me.  We are the ones who are going to control the world.  The Muslim world is not getting—quote—“enough respect from the United States or the West because we‘re not ascendant, therefore we are going to take out our rage against you.

There‘s no rational lieny (ph) or reconcilable demand here.  The reality is that he may be appealing to the Muslim world, but the tragedy of course is that he may have residents in the Muslim world.

(CROSSTALK)

EMERSON:  I just came back from a week in Germany where there is a whole debate because of the assassination of a filmmaker in the Netherlands.  That had nothing to do with Israel.  It had nothing to do with Iraq.  It had to do with the fact that Muslims and Netherlands felt that a filmmaker had disrespected Islam, so they killed him.  That was the plain and simple message that they tried to project.

ABRAMS:  And Professor, that‘s I guess the point, is I feel he‘s lying not just to us, but he‘s also lying to the Muslim world.

SEDERBERG:  I mean I am not talking about the veracity or the lack thereof of a particular statement.  I‘m simply trying to look at it from the communicator‘s point of view.  What is he attempting to accomplish and how effectively is he accomplishing that?  You yourself said that people in, for example, Western Europe will look at this in a way differently than we in the United States will.

Let‘s take look at it—when I went to your site to read this statement or what report there exited on it, there was a related link to the Defense Science Board of the advisory panel to the Pentagon, which said the U.S. invasion of Afghanistan and Iraq created a shared cause among otherwise divided Islamic extremists and raised their stature in the eyes...

ABRAMS:  Right.  But that‘s...

(CROSSTALK)

ABRAMS:  I understand.  That‘s a political statement, though, about the effect...

(CROSSTALK)

ABRAMS:  ... effect of U.S. policies...

(CROSSTALK)

ABRAMS:  ... and I‘m trying to talk specifically about this tape...

SEDERBERG:  And if you read what little we know of this statement or what little I know of this statement at this point since I got all of my information...

ABRAMS:  I‘ve got to...

SEDERBERG:  ... off your Web site...

ABRAMS:  Yes...

SEDERBERG:  ... and look at it in the context of a statement that was apparently made at the same time which we have a much more extensive translation that of Osama bin Laden.  What I worry about in this statement is that they are effective appeals to his political base and we should be concerned about that.

ABRAMS:  Yes, well I think we should be and I think it‘s important—

Steve, I apologize for shortchanging you on this.  I‘ve got to wrap it up, but it‘s people like Steve Emerson...

(CROSSTALK)

ABRAMS:  ... are out there are basically calling him on it and saying don‘t believe him.  This is nonsense.  They never cared about Israel before and I think it‘s important for us to tell the American people the truth about what this is all about.  This is about—you may be right that this is about trying to win the hearts and minds, but it‘s based on lies.

Steve Emerson and Professor Sederberg, thank you very both.

SEDERBERG:  And I think we need to understand why his message is effective...

ABRAMS:  And I think only to capture them and to defeat them is the only reason...

SEDERBERG:  And to—if you blithely ignore it...

ABRAMS:  I‘m not saying ignore it.

(CROSSTALK)

ABRAMS:  I‘m saying the only reason—no, the only reason we care about it is to capture them and stop them—period.  Apart from that we are giving them exactly what they want which is an evaluation of their politics.  All right, I‘ve got to wrap it up.

Coming up, last week I said people including women need to stop being sensitive—so sensitive at least and allow airport screeners to physically examine them reasonably to keep us safe.  Some of you think I haven‘t been patted down enough myself.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Alabama‘s constitution still includes outdated provisions for separate but equal schools and it seems that many residents don‘t want to change it.  What‘s going on here?  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—separate but equal apparently alive and well in Alabama.  Maybe I was naive.  I thought requiring separate schools for blacks and whites was universally viewed as an American historical pock (ph), one of those twisted, grainy embarrassing flashbacks that are now hard to believe for those of us who were not of age or alive at the time.

Well in Alabama, the ugly events in the late ‘50‘s and early ‘60‘s remain enshrined in its constitution thanks to a narrow victory for those seemingly still fighting the Civil War.  An effort to remove language from the Alabama constitution that requires separate schools for—quote—

“white and colored children” failed by a narrow margin.  At least it seems that today‘s recount will not change the outcome, it seems.

This constitutional amendment also included highly controversial provisions like ensuring all children have a right to an education and it would have had eliminated poll taxes, instituted to keep blacks away from the polls.  Come on.  It would have been and an easy way to say we‘re sorry for the hardships many of us and our ancestors inflicted upon African Americans.

We‘re sorry that we fought tooth and nail to keep blacks out of our schools.  You would think it would be a shameful memory rather than a seemingly proud reminder of a racist past.  The site of the infamous showdown between Governor George Wallace who refused to allow for segregation, federal authorities trying to enforce federal law that required Alabama to desegregate.

Today‘s “Washington Post” suggests the amendment failed for one of three reasons—racism, reluctance to amend the constitution or fear of taxes.  Of course, there‘s only one honest answer.  There were other mundane amendments that passed on November 2 and fear that giving blacks equal education will cost taxpayers really relates to issue number one, racism.

I have had my say, now it‘s time for “Your Rebuttal”.  Last Wednesday on one of the busiest travel days of the year, we told you that some women are complaining that airport security pat-downs are humiliating and say that their breasts and buttocks are being unnecessarily examined.  I said I don‘t know why this is a gender issue.

I have been through many airport pat-downs and while uncomfortable, I viewed as part of price we pay for enhanced security, rather sacrifice a little dignity before boarding a plane than risk losing my life in the air.  Many, many of you not happy with me including Jennifer Kopolow.

“I see as much reason for a full handed breast grab as I do for men to drop their pants, spread their cheeks and lift up their scrotum for a better look.”

Jennifer, I was quite clear that if screeners cross the line and molest women rather than screen them, they should be fired or worse.  They must use the back of their hands and give any woman a female screener if she requests one.

From San Francisco, Susan Vennarucci.  “Maybe you‘d be a little more sensitive if your preteen daughter or mother was put through this embarrassing search.”

You know, actually I spoke with my mother about this and she, too, is perfectly comfortable with these enhanced security measures.”  Again, I view them as temporary, until we can create a better more targeted system.

Gideon Wallace, “Having flown for three years since 9/11, the security checks are random and pointless.  We will never be safe from random acts of violence.  We have a higher chance of getting run down by our own drunken neighbors or shot by a disgruntled coworker than all of this hullabaloo.”

Maybe so Gideon, but using your logic, we ought to just give up airport security all together.

On the other side, Kate Jackson from Boston, Massachusetts.  “I believe this is neither a gender issue nor a respect issue.  Until the threat of terror is eliminated, men and women who must fly will most likely be felt up and rubbed down.”

And TSA screener P.K. Harris in San Antonio.  “Thank you.  You get it.  My thoughts are that it is unfortunate and amazing that we still have passengers who since 9/11 feel they are beyond being screened.”

That‘s it for this show.  Thanks for watching.  See you back here tomorrow.  “HARDBALL” with Chris Matthews is up next.

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

END   

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