updated 12/1/2004 2:39:22 PM ET 2004-12-01T19:39:22

Guest: Daniel Horowitz, Jim Anderson, Mercedes Colwin, Chai Feldblum, Warrington Parker, Howard Bashman, Dana Priest

DAN ABRAMS, HOST:  Coming up, prosecutors in the Scott Peterson case tell jurors the only appropriate punishment is death.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  The prosecution promises to present testimony from four other of Laci‘s closest family members.  And why did the defense decide not to present an opening statement now?  Maybe they learned a lesson after promising too much in the opening statement in the guilt phase.

And some elite law schools win a big legal ruling over the U.S.  military.  The schools now allowed to keep recruiters off of their campuses without losing federal funds.  They say the military discriminates against gays.  All the military was asking for was an equal opportunity to recruit like every other employer.  Why is that too much to ask in exchange for millions in funds?

And another cabinet shakeup—this time Tom Ridge steps down as the nation‘s first homeland security secretary.

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket—quote—“the only appropriate and just punishment is death”.  With those words, prosecutor Dave Harris ended a short but powerful opening statement in the penalty phase of Scott Peterson‘s murder trial just hours ago where jurors will decide between life in prison and death and since that time, the prosecution‘s entire case has almost been presented.

Jennifer London is at the courthouse with the very latest.  Jennifer, I understand we‘ve seen some powerful, emotional testimony and the prosecution is almost done.

JENNIFER LONDON, MSNBC CORRESPONDENT:  Dan, emotions are certainly running high inside the courtroom.  The prosecution called its first witness to the stand, Brent Rocha, Laci‘s brother.  He described Laci as his little sister and he said that Laci‘s smile could light up a room.  He said that Laci taught him so much.  He recalled a couple of anecdotes about when he went to visit her in college.

He says he tries to focus on the good memories with Laci, but it‘s all overshadowed by her murder and thinking about how she may have died.  We then heard from a very emotional Amy Rocha, that is Laci‘s sister, she is six years younger than Laci.  She described Laci as the big sister she wanted to grow up to be like.  She broke down several times on the stand crying as she recalled certain things that her and Laci would do together, how they liked to cook together.  She said that the holidays will never be the same without Laci.

Then we heard from Ron Grantski, Laci‘s stepfather.  He also talked about Laci‘s smile.  He said her smile could light up a room.  They put up a picture of Ron and Laci and he said that‘s a shirt that Laci gave me at Christmas.  He said I still have that shirt.  His voice was strong, it was steady, but you could tell it was just a difficult day for him on the stand, Dan, as it was for every member of the family.

When Ron finished his testimony, Laci‘s mother, Sharon, was called to the stand.  Now, Dan, I should point out that Mark Geragos has not asked any questions.  When each of the witnesses before they were excused, Judge Delucchi would say, Mr. Geragos do you want to ask any questions, and he simply said no.

Now the jury reacting very strongly to this testimony.  I saw at least four jury members crying, wiping their eyes.  Now we‘re not talking about heaving sobs, Dan, but certainly you can tell that this testimony is emotional and it is getting to every one inside the courtroom.

ABRAMS:  You know, smart move by Mark Geragos not to ask any questions.  What is he going to cross-examine them about?  How they feel about Laci?  He seems to be finally getting it that these jurors, you know, not happy with his case so far.  Jennifer is going to stand by for a moment.

Joining me now is former California prosecutor Jim Anderson who trained other prosecutors for death penalty cases, successfully put 10 men on death row in California, criminal defense attorney Daniel Horowitz, who has defended seven death penalty cases, none of which resulted in death sentences and criminal defense attorney Mercedes Colwin.

All right, Daniel, have you gotten to see any of the testimony?

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  Just a little bit, Dan.  It‘s emotional.  It‘s not as strong as I‘ve seen, though.  And Jim Anderson can talk about it more.  He was there all morning.

ABRAMS:  Jim, what do you make of what we‘ve seen so far?

JIM ANDERSON, FORMER PROSECUTOR:  Well it was very emotional, but I must say that I think that they could have gone even further and gotten deeper into the emotional aspect, the victim impact.  Because I was sitting there with my wife and we were waiting to hear questions and I say my wife because she‘s seen probably every closing argument I‘ve ever done.  And you know Mr. Harris was very low key about this whole thing.

Well that‘s his style, but I think that he omitted some of the feelings that could have been evoked by such as, you know, how did you feel when the body was discovered?  When you found out it was washed up on the shore, what emotions did that evoke within you?  When you went to the funeral what did you think?  And when you went and put her, you know, in the burial plot, six feet under the ground what emotions could you have done...

ABRAMS:  But isn‘t that...

ANDERSON:  They could have absolutely had the Boston Tea Party with this kind of emotion.

ABRAMS:  But Jim isn‘t the concern about overkill?  The bottom line is that, you know, I think that they have to be concerned about not trying to seem like they‘re just saying to these jurors—feel sorry for us, feel sorry for us.  I think a sort of strong resolute testimony that says look we are behind these prosecutors.  They want the death penalty.  We‘re not going to sit on the stand and just tell you all about what it‘s meant to us at every point in our life.  You know.  You get it.  You know what this means to us.

MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY:  I think you‘re...

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

ANDERSON:  You talk about overkill—well, what are you trying to do if you‘re the D.A. in this case?  You‘re trying to get this jury to kill Scott Peterson.  How could you have overkill when that‘s the goal of your whole prosecution?

ABRAMS:  Well...

ANDERSON:  Stanislaus County said they‘re going for the death penalty from day one.  Go for it.

ABRAMS:  Yes, well see I guess I would—let me play this quick sound bite from Brent Rocha here just to give you a sense of some of the emotion before they went into the penalty phase.

(BEGIN VIDEO CLIP)

BRENT ROCHA, LACI PETERSON‘S BROTHER:  I miss your beautiful smile and your fun-loving personality.  Every time we were together, I could feel the unconditional love between the both of us.  As your older brother, I only wish that I had the opportunity to be there to defend you from the person that decided to take you away from me.

(END VIDEO CLIP)

ABRAMS:  Mercedes, look I‘ve been very critical of these prosecutors for much of the case.  But you know, it seems to me that at this point, these jurors have probably made up their minds as to whether they want the death penalty or not, that just hearing how horrible this has been for Laci‘s family one more time, I don‘t think he‘s going to help the prosecution‘s case anymore than just calling the witness stand for a short period of time.

COLWIN:   I think you‘re absolutely right Dan.  I mean this is torture for these jurors to sit there.  They know these emotions.  They‘ve seen it.  I mean some of these folks have already testified.  They‘ve been on the stand early.  They know how upset they are.  They may have followed the case beforehand.

All of that emotion and they‘ll take their own personal experience—there are a few parents in that jury pool.  They‘ll take their own personal experience into it.  What would I feel like if my child were taken from me?  So they don‘t need to go through the torture.  And I think it‘s a great move on the prosecutors‘ part.  Get them on and off the stand and let it go.

(CROSSTALK)

ABRAMS:  Very quickly Daniel...

UNIDENTIFIED MALE:  I disagree.

ABRAMS:  Daniel, why have you won the cases—won—why have you not gotten death sentences in the cases you‘ve been involved in?

HOROWITZ:  Including three against Jim Anderson.  I think because I was able to find something in my client that I liked—not that I ever denied what they were or what they did, but I found the little child in them, the hurt person and I conveyed that to the jury somehow...

ABRAMS:  Did you ever have a case where part of your defense in the guilt phase was my client is an awful person?

HOROWITZ:  No and also, whenever I pick the jury, I look for people who would be receptive to my client‘s personal characteristics in the penalty phase which is something Geragos didn‘t do.

ABRAMS:  Yes.

COLWIN:   That would be a far cry in this case, though, Daniel...

ABRAMS:  Yes...

COLWIN:   That would be a really tough job.

ABRAMS:  Let me take a quick break here but...

(CROSSTALK)

ABRAMS:  ... it is just so ironic that in the guilt phase, you have Mark Geragos saying my client is a horrible guy, but he‘s not a murderer.  And now in this phase (UNINTELLIGIBLE) saying yes, he‘s a murderer effectively, but he‘s not such a bad guy.

All right.  Everyone stick around.  Coming up—right after the prosecution asks for death, Peterson‘s attorney said they would reserve opening statement until they presented a case.  Is defense attorney Mark Geragos shell shocked from the first phase of this case?

Plus, military recruiters not welcome at certain elite universities because of the don‘t ask don‘t tell policy with regard to gays in the military.  Now a federal appeals court rules the schools can keep recruiters out without worrying about losing any federal funds.  Why is it unconstitutional for the military to demand an equal opportunity to recruit like other employers?

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:  The final witnesses has been called it seems for the prosecution in the penalty phase of the Scott Peterson case.  It is Laci‘s mother.  How did the case move so quickly?  And why didn‘t the defense present an opening statement?  Back in a moment.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SHARON ROCHA, LACI PETERSON‘S MOTHER:  Laci and her unborn child did not deserve to die.  They certainly did not deserve to be dumped in the bay and sent to a watery grave as if their lives were meaningless.  Laci meant the world to me.  She was my own only daughter.  She was my best friend.  We miss her beautiful smile, her laughter, her love, and her kind and loving ways.  I miss seeing her, talking to her, and hugging her.

(END VIDEO CLIP)

ABRAMS:  That was 18 months ago when Sharon Rocha spoke at a press conference.  Now she is testifying in the penalty phase of the Scott Peterson trial.  And she may be the last witness—first three witnesses came and went.  No cross-examination.  Sharon Rocha now on the witness stand for the prosecution.

Jennifer London is at the courthouse.  So Jennifer, what do we know about what she‘s been saying?

LONDON:  Well Dan as you mentioned Sharon Rocha, Laci‘s mother, is on the stand right now.  She is quiet.  She is very, very somber.  She‘s talking about Laci‘s love of gardening, Laci‘s love of flowers.  She‘s describing to the jury what her relationship was like with Laci.

You heard from that tape that you just played that Sharon Rocha had said that Laci was her best friend.  Well Sharon is describing that relationship to the jury right now.  She is talking about how Laci was so excited to be a mom.  We heard earlier testimony that Laci had trouble conceiving and so when Laci found out she was pregnant, she was very, very excited.  She was very happy.  She had planned the birth of her son, Conner, meticulously.  Everything was ready and waiting for the baby and Sharon is describing what that was like right now for the jury—Dan.

ABRAMS:  All right.  Jennifer London thanks very much.  You know, I‘m kind of happy I‘m not there.  I mean it‘s just so hard.  I‘ve listened to so many of these cases and so many victim impact statements, penalty phases of case, it is really hard to sit in there and listen to this.

Daniel Horowitz, how does it fit into the case?  I mean we‘ve talked about the fact that there are aggravating and mitigating circumstances here.  What is the aggravating circumstance in how the families have been impacted by the loss?

HOROWITZ:  Here‘s the logic, Dan.  This jury said that just the crime itself leads both options on the table.  But the bigger picture of this crime—Scott had to know that family members would be hurt.  In this case, he knew them personally.  He knew how much Laci meant to them.

The jury can look at Scott and say you didn‘t just kill Laci and Conner.  You hurt these people too and you did that on purpose.  And that they can put into the equation about whether he‘s so evil that he should live or die.

ABRAMS:  And Jim Anderson, I assume you know based on what you were saying before that that really can be the final blow.  Meaning, if it‘s a close case, if a couple of jurors are on the fence, that just feeling it, feeling their pain can lead them to decide to execute?

ANDERSON:  Well, you know, getting back to their pain.  I think Sharon Rocha‘s statement when she made it to the news media crying hysterically that my daughter did not deserve to die that way.  My—baby Conner did not deserve to die that way.  They didn‘t deserve to be dumped in the bay.  You have to amplify that.  You have to amplify how the baby died.  Ask a question—if anybody, what happens to the host—to the baby when the host‘s body dies if it‘s suffocated or strangled...

ABRAMS:  But doesn‘t that...

ANDERSON:  ... how long is the baby going to live?

ABRAMS:  ... expose a weakness Jim?  But Jim, isn‘t that a weakness in the prosecution‘s case which is they don‘t know exactly how Scott Peterson killed Laci?

ANDERSON:  It doesn‘t matter.  The bottom line is when the host‘s body is dead, how long is that baby going to be alive within her womb?  And what death throes is it going to be through with it suffocating to death, you know, absent nutrition...

ABRAMS:  Jim...

ANDERSON:  You have to go into that because...

ABRAMS:  Jim...

(CROSSTALK)

ABRAMS:  ... does it matter, Jim, as a legal matter, that the first-degree murder is what he‘s subject to the death penalty.  That was Laci, not the death of Conner.  Does it matter as a legal matter?

ANDERSON:  You‘re wrong on that aspect.  Both murders are the thing that made the special circumstance true—one of the murders had to be a first-degree.  It doesn‘t matter if the second murder is murder one or murder two...

(CROSSTALK)

HOROWITZ:  But you‘ve got to admit Jim...

(CROSSTALK)

ABRAMS:  But if there had been two second-degree murder...

HOROWITZ:  ... but you‘ve got to admit the jury is not...

ABRAMS:  If there had been two second-degree murder convictions here, Jim, the bottom line is that there would not be a penalty phase.

ANDERSON:  There would be no special circumstance.

ABRAMS:  Right.

ANDERSON:  You‘re right.

ABRAMS:  Right.

HOROWITZ:  And the jury is giving them—Scott a little bit of a pass on Conner.  They‘re basically say, Jim, look...

ABRAMS:  All right, hang on...

HOROWITZ:  ... you didn‘t kill Conner on purpose.  He wanted to kill Laci.

ABRAMS:  Sorry to interrupt you, Daniel.  Let me go to Jennifer London.  She has got some news for us.

LONDON:  Dan, we‘re hearing from inside the courtroom that they showed a picture of Sharon from Mother‘s Day.  At this point she—we‘re told she totally started breaking down, crying, saying Mother‘s Day is not the same again.  She talked a little bit more about how excited she was for Laci to become a mother.

Then at one point, Sharon started shouting.  She started saying divorce is not an option for murder.  Now, what exactly she means here, we‘re not entirely sure.  But she‘s probably trying to say that if Scott didn‘t want to be part of this marriage, you know, why not just go for a divorce as opposed to murder.  So we‘re starting to see a lot of emotion from Sharon Rocha, Dan.

ABRAMS:  Exactly what Jim Anderson was predicting.  All right, let me take a quick break here.  When we come back, more on the Peterson case and we‘ll talk about how some law schools are refusing to give military recruiters the same courtesies as other employers.  Now a federal court is saying they can do it, not lose federal funds.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

S. ROCHA:  Laci meant the world to me.  She was my only daughter.  She was my best friend.  We miss her beautiful smile, her laughter, her love, and her kind and loving ways.  I miss seeing her, talking to her, and hugging her.  We‘ve been deprived of meeting and knowing Laci‘s son, our grandson and nephew.

(END VIDEO CLIP)

ABRAMS:  Apparently some testimony maybe that emotional or more inside the courtroom right now.  Sharon Rocha is on the stand possibly the final witness in the penalty phase of the Peterson case.  Jennifer London is there.  Jennifer, what‘s happening?

LONDON:  Dan, we‘re getting updates from inside the courtroom.  As you mentioned, Sharon Rocha is currently testifying.  We understand that she is addressing Scott directly.  She is saying you put Laci in the worst possible place.  She suffered from motion sickness and you threw her body in the bay.  Sharon Rocha also saying that it was so horrible when the body was discovered.  Laci did not have a head.

She describes that they couldn‘t even use dental records to identify the body.  We understand other family members of Laci Peterson‘s are crying right now.  A number of the panelists are leaning forward; they‘re bowing their heads.  Dan, we‘ll continue to bring you updates.

ABRAMS:  All right.  Yes, we‘ll get an update from you later in the show.  Jim Anderson, this is what you were talking about, right?

ANDERSON:  Absolutely.  This is the type of victim impact, which is going to make a huge impact on the jury as to whether they should let this self-indulgent sociopath murderer live or die.  And I wish all three witnesses before Sharon would have shown the same emotion and had the same impact.  I think it‘s wonderful.

I don‘t mean in a way to denigrate the sorrow the family goes through, but I‘m looking at it purely as a prosecutor.  If you‘re going to go for the death penalty, it‘s all out or nothing.  Don‘t even bother if you‘re not going to go full boar.

ABRAMS:  But Mercedes...

COLWIN:   But it‘s also...

(CROSSTALK)

COLWIN:   ... how comfortable the person is going to be testifying...

ABRAMS:  I‘ve seen cases...

COLWIN:   ... Dan...

ABRAMS:  I‘ve seen cases, Mercedes, where the prosecutors have not gone full out.  They basically said look it‘s an option.  I want to lay it on the table for you.  You decide.  Here, Dave Harris, the prosecutor, said we believe that the appropriate punishment is death.

COLWIN:   And they could do that.  I mean it all depends on the prosecutor.  I mean this is how—it‘s the promise that they had said to the jurors at the onset of that trial.  They had shaped this case as a death penalty case.  They mentioned it during voir dire.  They have to close the circle and mention it again during the death penalty phase.

A lot of the prosecutors take a different approach.  This is a very high-impact case, certainly one that we‘ve seen a lot of emotion in—with the public outcry once he was convicted.  So he‘s going to close the circle and he‘s going to ask for the death penalty.

And I don‘t agree with Jim.  I think that if witnesses—the first three that testified were not comfortable being that effusive with their emotions...

(CROSSTALK)

COLWIN:   ... there‘s no reason for them to testify that way.  It was more appropriate...

ABRAMS:  Daniel Horowitz...

COLWIN:   ... that she testified—the mother testified...

ABRAMS:  Sorry Mercedes.  Daniel Horowitz, is Scott going to get the death penalty?

HOROWITZ:  He may, Dan, unless he can show remorse.  When Sharon looked at him, he better have looked contrite and he better show remorse to his parents or somebody else.  Otherwise this may be a case that doesn‘t justify death, it may get that.

ABRAMS:  Jim Anderson, I think it‘ll be tough to get all 12 unanimous on this.  What do you think?

ANDERSON:  Well, you know, one never gets rich by predicting jury verdicts.  We‘ve learned that...

ABRAMS:  No, I get it wrong all the time, yet I continue doing it all the time.

ANDERSON:  Well, you know, it‘s amazing though.  I understand that Sharon now has just been talking about the burial.  Those are things that the other three people should have been asked about.  When that body is finally put to rest, what effect did it have on you...

ABRAMS:  Yes.

ANDERSON:  ... what effect did it have on you and how will it affect you the rest of your life.

COLWIN:   Dan...

ANDERSON:  There‘s a lot of golden areas there they could have gone in and made a lot of money.

COLWIN:   There are at least three jurors that I don‘t think are going to vote for the death penalty.  One is the gentleman who had a problem—who is a Christian—had a problem and went to his priest and said I‘m not sure I can even sit on a panel...

ABRAMS:  Yes.

COLWIN:   ... with the death penalty.  Another one was a juror that felt—that was uncomfortable with the death penalty, thought it was the worst thing...

(CROSSTALK)

COLWIN:   ... and he made comparisons to lynching.

ABRAMS:  Yes.

COLWIN:   And a third is...

UNIDENTIFIED MALE:  But Mercedes...

(CROSSTALK)

HOROWITZ:  Mercedes, this is a grim-faced jury.

ABRAMS:  Yes.

(CROSSTALK)

COLWIN:   You know, even though...

HOROWITZ:  Mercedes, this jury looks very grim-faced and it worries me.

(CROSSTALK)

ABRAMS:  Yes...

COLWIN:   I‘ve never sat as a juror, but I can‘t imagine imposing the death penalty.

ABRAMS:  I‘ve got to wrap it up.  But every juror who is sitting on that jury has said they could impose the death penalty...

ANDERSON:  Absolutely...

ABRAMS:  ... before they were qualified to sit on this jury.  Jim Anderson, good to have you on the program...

ANDERSON:  Yes...

ABRAMS:  ... and as always Daniel Horowitz and Mercedes Colwin, good to see you.

UNIDENTIFIED MALE:  Thank you.

COLWIN:   Thanks Dan.

ABRAMS:  Jennifer London is going to be back in court.  We‘ll get an update from her as to what‘s happening later in the hour.

Coming up, several prestigious law schools giving their students a lesson in legal maneuvering as they sue to keep military recruiters off their campus.  They don‘t want an organization on their turf that they say discriminates against gays.  School says that shouldn‘t stop them from receiving federal dollars and apparently a federal appeals court said that‘s fine, don‘t have to allow the recruiters on, and you can still keep the money.

And the nation‘s first homeland security secretary, Tom Ridge, announced his resignation—the seventh member of the President Bush‘s cabinet to step down.  We‘ll talk about why he left.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a big victory for some elite law schools.  They say the military discriminates against gays and now they can keep military recruiters off campus without losing federal funds.  Why don‘t they just treat the military like every other employer, but first the headlines.

(NEWS BREAK)

ABRAMS:  Some news to report to you in the Scott Peterson penalty phase.  The prosecution is done.  Sharon Rocha, the final witness for the prosecution in this penalty phase has testified.  Now we heard from the brother, the sister of Laci Peterson, the mother, and the stepfather as well.  We‘ll have a report later in the show.

But here‘s how I was going to start this next segment.  I was going to say welcome back.  Then I was going to say two words military recruiters may not be hear on many university campuses after two—three federal judges ruled against the Department of Defense and in favor of university law schools that want the recruiters either kept out or kept in different areas.  The schools sued to stop the government from enforcing a law called the Solomon Amendment.  It strips federal funds from schools that don‘t provide military recruiters with the same sort of facilities routinely granted to other corporate recruiters.

According to the court‘s majority, to comply with the Solomon Amendment, the law schools must—quote—“propagate, accommodate, and subsidize the military‘s message.”  The law schools say that‘s a message of discrimination against gays and lesbians embedded in the military‘s don‘t ask/don‘t tell policy on homosexual behavior.

The dissenting judge, Ruggero Aldisert, had some stinging words for the majority saying in part they obviously do not desire that our men and women in the armed services obtain optimum justice in military courts with the best trained lawyers and judges.

“My Take”—I don‘t get it.  First of all, how is the act of recruiting a First Amendment issue?  They want a room, not a soapbox.  And even if it is, the court says that schools should be able to make a statement that they don‘t want to associate with organizations that discriminate on their campus.  And so the solution is to prevent recruiters from speaking on campus.

Let the students or professors protest.  Why can‘t Congress pass a law that says if you keep the military out, you lose federal funds.  All the military is asking for is equal treatment just like every other employer, no subsidies.  Look, the don‘t ask/don‘t tell policy doesn‘t make any sense to me.  But that can‘t be the excuse for allowing schools to circumvent a federal law designed to put recruiters on an even playing field.

My guest, Howard Bashman is an appellate attorney who wrote a brief supporting the government‘s position.  Chai Feldblum is a law professor at Georgetown University who helped founded the group Forum for Academic and Institutional Rights, which brought the case against the government.  And Warrington Parker was co-counsel for the team representing the schools opposed to the government‘s case.  Thank you all for coming on the program.  Appreciate it.

(CROSSTALK)

ABRAMS:  All right.  Professor Feldman, let me start with you.  Why am I getting this wrong?

CHAI FELDBLUM, GEORGETOWN UNIVERSITY LAW PROFESSOR:  Oh well, because the school, in fact, wants to treat the military equally to all other employers.  We have a rule—if an employer cannot sign and say that it will not discriminate based on race or gender or sexual orientation, we don‘t allow that employer to recruit.  We treat all employers the same.

Now the military came in with the heavy hand of the government and said, if you don‘t let us recruit, then all of the federal funds that your main campus might get for health care will get yanked.  So this was just like the Boy Scouts case.  You know, the Boy Scouts...

ABRAMS:  But the Boy Scouts case was different.  I mean in the Boy Scouts case the Supreme Court said that the Boy Scouts can choose not to have gay scoutmasters.  The difference in that case was that their “A” didn‘t have a federal law and “B”, you have the scoutmasters effectively speaking—these are the people who represent the Boy Scouts.  I‘m not saying I support the decision.  But the bottom line is it‘s different than this case.  All they‘re asking for is a room.

FELDBLUM:  Right.  And I will tell you that as someone who is trying to extend a message to my students, the message is that it is unjust to discriminate based on certain characteristics.  That‘s my message...

ABRAMS:  But courts are not supposed to be sending messages.  I mean...

(CROSSTALK)

FELDBLUM:  No, no, no.

ABRAMS:  Let me get...

FELDBLUM:  This is what the court said—that we are an expressive association...

ABRAMS:  All right.  Mr. Parker...

(CROSSTALK)

UNIDENTIFIED MALE:  Yes.

ABRAMS:  Mr. Parker, why isn‘t the military different?  Let‘s even assume that Professor Feldblum is right.  That they just want to say all employers are getting treated the same.  They have to sign this document.  Why can‘t we say the U.S. military is a little different because you‘re talking about federal funds that come from the federal government and that‘s where the U.S. military is?

WARRINGTON PARKER, APPELLATE ATTORNEY:  Because the U.S. Supreme Court has said that you cannot require institutions, whoever they may be, to do things unrelated to the federal funds.  The government does not fund recruiting.  The government provides funds generally to schools.  They provide them to medical schools.  They provide them for any number of reasons, but not for recruiting.  And it‘s the same reason all of the schools did was invoke the same laws that protects the media, for example, when they receive...

ABRAMS:  But see it‘s not...

PARKER:  Well, no...

ABRAMS:  This is not speech.

(CROSSTALK)

ABRAMS:  It‘s just not...

(CROSSTALK)

ABRAMS:  It‘s an act of hiring.  We‘re not talking about...

PARKER:  It doesn‘t matter...

ABRAMS:  ... asking for a room, not a soapbox.

PARKER:  It doesn‘t matter what the military calls it.  It‘s what the schools believe it is.  And the schools are being asked to distribute the material.  They‘re being asked to solicit their students, to attend these recruiting functions.  It doesn‘t matter...

ABRAMS:  So according to you...

(CROSSTALK)

ABRAMS:  ... they can develop any kind of system—they impose a no violence policy, right?  They can say—you know, I mean there are actually some pacifist institutions, which were given exceptions here...

PARKER:  Absolutely.

ABRAMS:  But any school can say you know what, we don‘t want the military.  So if this doesn‘t work, maybe we‘ll just say there‘s a no violence policy and as a result, we‘ll get to keep them off campus.

PARKER:  They could develop any rule that say we don‘t want the military.  That is...

ABRAMS:  And then they lose their federal funds...

PARKER:  And—no for the same reason that MSNBC wouldn‘t lose their federal funds if they said no, we don‘t want the government to take 10 minutes of our time even though the government provides us certain benefits like air time and air bands, we don‘t want the government to take our time.

ABRAMS:  To compare this to the media is absurd.  All right...

(CROSSTALK)

ABRAMS:  ... let me read the majority opinion here and then I‘ve got to get Mr. Bashman in.  The majority opinion said by requiring schools to include military recruiters in the interviews and recruiting receptions the schools arrange, the Solomon Amendment—this is the law—compels the schools to accommodate the military‘s message and by putting demands on the law schools employees and resources the schools are compelled to subsidize the military‘s recruiting message.  I don‘t know Mr. Bashman.  Where was the subsidy business coming from?

HOWARD BASHMAN, APPELLATE ATTORNEY:  I agree with you 100 percent, Dan.  No reasonable person could attribute to the law schools, the military‘s treatment of homosexuals just by allowing them to recruit on campus.  So my clients believe that the decision is absolutely wrong.  And that it‘s likely to be reviewed and reversed by the U.S. Supreme Court.

ABRAMS:  Sorry.  Professor Feldblum, you wanted to get in.

FELDBLUM:  Well two things.  One is it‘s very clear that when the government sets up a program itself, it can set conditions for that program and if you don‘t like it, don‘t take the money.  So if the government wants to give money to libraries for computers and then has a rule that computers have to have a filter for pornography, the Supreme Court two years ago said, that‘s fine.

ABRAMS:  Right.

FELDBLUM:  You don‘t like it, don‘t take the money.  The Supreme Court has also said, though, that the government cannot use its heavy hand of money as a way of forcing people to do things that would be unconstitutional.

(CROSSTALK)

FELDBLUM:  With all due respect, you may not...

ABRAMS:  What‘s unconstitutional?

FELDBLUM:  With all due respect, you may not feel like it‘s a subsidy.  You may not feel like we are helping the military.  But as someone who sits in a law school and teaches my students to know that my students who are openly gay as I am, an open lesbian at the law school, that if they went across to get a job, they could not get a job...

ABRAMS:  They don‘t have to go to that recruiter.  They can protest and...

(CROSSTALK)

PARKER:  That‘s precisely what the...

(CROSSTALK)

PARKER:  I‘m sorry...

FELDBLUM:  Go ahead Warrington...

PARKER:  ... that‘s precisely what the U.S. Supreme Court says you don‘t have to do.  You do not have to exercise a right of protest because you are allowed to exclude those things you don‘t want to protest against.

ABRAMS:  Are you...

(CROSSTALK)

ABRAMS:  Let me read from the dissent and then I want to ask you both to make a prediction about what the U.S. Supreme Court—this is what one dissenting judge said—no court heretofore has ever declared unconstitutional on First Amendment grounds any congressional statutes specifically designed to support the military.  It bears not that the military‘s policy against homosexual activity has been adjudged by a number of our sister courts of appeal not to violate the Constitution.

That obviously doesn‘t resolve the issue once and for all, but you know, it is an interesting point.  All right.  Now, do you believe, Professor Feldblum that the U.S. Supreme Court is going to uphold this decision?  Because I don‘t think there‘s a chance they will.

FELDBLUM:  Oh, I think there‘s a very good chance that if they choose to hear this case, they will find based on that precedent that the Third Circuit was exactly right.  Now there‘s a question as to whether they‘ll choose to hear the case.  If they do choose to hear the case...

ABRAMS:  Yes.

FELDBLUM:  ... I think they will find it very hard to distinguish this case from their Boy Scouts case and from their Hurley Kuwait (ph) case where they said their organizers could keep out a gay pride Irish group because that would mess up their message and it wasn‘t enough for them to say we disavowed the group.  So...

ABRAMS:  All right.  Mr. Bashman...

FELDBLUM:  ... I think they‘ll decide on the side of the Third Circuit.

ABRAMS:  Here‘s how the court—here‘s how the dissent distinguished from the Boy Scouts case.  And again let‘s be clear.  What they ruled in the Boy Scouts case is the Boy Scouts could choose to decide not to have openly gay people as scoutmasters.  Again, whether you agree with that or not, that was the ruling of the U.S. Supreme Court.  In the dissent in this case, again, the judge saying, I don‘t agree with the (UNINTELLIGIBLE) people in the majority.

In contrast to the scoutmaster in Dale, recruiters do not purport to speak for and cannot reasonably be understood to be speaking for the law schools that they‘re visiting.  This case does not involve the forced inclusion of an unwanted person in a group.

And Mr. Bashman, I think that‘s one of the most important lines in this decision.  And if they‘re going to win this in the U.S. Supreme Court, that‘s going to be the reason why.

BASHMAN:  Right.  Judge Aldisert is absolutely right.  And unlike in the Boy Scout case, these recruiters come on the campus for several hours and that‘s it.  Then they‘re gone.  My clients who are law student veteran‘s groups are very concerned in this time of war the quality of lawyers that the military will be able to recruit will be going down as a result of not having equal access to the law schools.

ABRAMS:  Mr. Parker, final word on this.

PARKER:  Right.  There‘s not a bit of empirical evidence that the military is unable to obtain the same quality of persons that they obtained for years before the Solomon Amendment.  What we have asked the military to do is not force the military on campus—there was a time of accommodation.  That‘s what law schools were comfortable with.

ABRAMS:  Yes.

PARKER:  The military took it a step too far and they were slapped down and rightly so.

ABRAMS:  And I say that the law schools took it a step too far.  But so far the courts not agreeing with me on this one.  Howard Bashman, Professor Feldblum and Warrington Parker, thank you so much.

PARKER:  Thank you.

ABRAMS:  Important topic...

BASHMAN:  Thank you.

ABRAMS:  ... very interesting.  I appreciate it.

PARKER:  Take care.

ABRAMS:  Coming up—the man who taught America about why it should fear the color orange as in alert is out.  Tom Ridge stepping down.  What led him to leave?

And you get it.  Everyone gets it.  I don‘t think most of you get it as much as we do, though.  Spam—telling us how to enlarge some things and how to find people who will appreciate it if we do just that.  But spammers be warned, we‘re on to you.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  The man behind the color-coded terror alerts, our nation‘s first ever head of homeland security Tom Ridge stepping down saying he‘d just like to spend a little more time with his family after more than two decades in public service.

(BEGIN VIDEO CLIP)

TOM RIDGE, HOMELAND SECURITY SECRETARY:  I‘m just going to step back after 22 plus years of public service in a row, step back a little bit, breathe deeply, and then decide.

(END VIDEO CLIP)

ABRAMS:  But before deciding on his next step, Ridge who raised the national terror alert five times since taking office and once for the financial sectors in New York, Jersey, and D.C. plans to stay on the job until February unless a successor is named sooner.  Since Ridge took the top post, there have been no attacks on U.S. soil.  The secretary credited all Americans and his department for sending a message to terrorists around the world.

(BEGIN VIDEO CLIP)

RIDGE:  They know America is a different place to work and operate in.

(END VIDEO CLIP)

ABRAMS:  “My Take”—whatever you think of Ridge, he deserves credit for one thing—being willing not to just increase the terror threat level, but to bring it down as well.  The system has not exactly been the greatest, but the easy thing to do would have been to just leave us at orange, making the system completely useless.

Instead, Ridge mustered up the courage to reduce it to yellow after some period of days or even after a certain event passed.  If there had been an attack soon after he reduced it, he would have been scoured, but if he had not brought it back down to yellow, he would have been telling the public nothing about the threat level.  The system needs an overhaul, but I give him credit for that.

Joining us now to discuss why Tom Ridge may have really stepped down, Dana Priest, national intelligence reporter for “The Washington Post”.  Thanks for coming back on the program.

DANA PRIEST, “THE WASHINGTON POST”:  My pleasure.

ABRAMS:  So why did he really step down?  Really purely family reasons?

PRIEST:  I think he was tired.  That‘s what his friends have been telling us for quite sometime now.  That he wants to leave public service.  He—the last two years out of 22 have probably been the most difficult as he said.  And I have to agree with you Dan.  You know, he was not just the symbol of the president‘s determination to get homeland security under control with this bear-like person who was supposed to give us confidence.

But as you said, he took the tough decisions, not only to lower the alert, but then to say we‘re not going have an alert all across country.  We‘re just going have it in the areas that we can pinpoint.  And as you know, intelligence is a very difficult thing to analyze if you don‘t have concrete facts that point to specific places, which he never had.  The other thing I think we should give him credit for is trying to be honest with the American people.  We had this unusual situation with Attorney General Ashcroft...

ABRAMS:  Yes, they were battling it out...

PRIEST:  Right.  And Ridge was trying to play down the alert in a sense and say it‘s just pinpointed to a certain area.  There‘s nothing new in general—in Attorney General Ashcroft‘s briefing, things like that.  So he struggled.  Remember the duct tape at one point...

ABRAMS:  Yes.

PRIEST:  They said buy duct tape and then the next day they said, well, that actually might not be a good idea because you could suffocate your family.  So...

ABRAMS:  Yes.

PRIEST:  ... he went through the learning curve just like I think the country has on homeland defense.

ABRAMS:  Dana, what to say to people who say this is another example of a cabinet member who wasn‘t always onboard, who didn‘t always follow the party line, leaving.  Is that part of the reason here or you still stick to purely family?

PRIEST:  You know, I don‘t think it‘s not following the party line because he gives George Bush every credit you could give him, but it‘s a difficult job.  He was struggling through it like we have struggled through it.  They haven‘t got a lot of things right yet—port security.  They don‘t have one terrorists‘ watch list still.

They don‘t know where to send the funds throughout the country in specific cities—the high-value places that they really need to guard.  They‘re working through this enormous bureaucracy, which must have been very frustrating.  They‘ve got these 20 committees on the Hill to deal with.  So in one sense, it‘s sort of like the bureaucratic nightmare that you don‘t want to have.

On the other hand, everybody believes it is ultimately a very important mission and it will get more fine tuned as time goes on.  But I don‘t think he had that much patience with the large bureaucracy.  And the other people being named as his successor, two out of the three, are both governors.  So there are people who have run big organizations and are really going to bring...

ABRAMS:  Yes.

PRIEST:  ... fuse intelligence with state and local government, which is what this is all about.

ABRAMS:  Dana Priest from “The Washington Post,” as always thanks very much.

PRIEST:  Thank you.

ABRAMS:  Coming up—last week we talked to a man who took the law into his own hands, went after a gang of robbers, had put a gun to him and threatened to rape his daughters.  Now the authorities still say they haven‘t cleared him.  Remember he killed one of the robbers with his car.  I said they should leave him alone.  Almost all of you agree.  Your e-mails...

COMMERCIAL BREAK)

ABRAMS:  It‘s time this program about justice did something about the amount of spam we get every day.  If you‘re trying to sell us pills, porn or get us to gamble, be warned.  It‘s coming up.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  One of our viewers, Suzanne Lury (ph), just writes in and says we need an update on the Scott Peterson case.  You got it.  Jennifer London is at the courthouse where we believe the prosecution has wrapped in the penalty phase of this case—Jennifer.

LONDON:  Dan, that is correct.  The prosecution has completed presenting its part of the penalty phase.  We last heard from Sharon Rocha.  Obviously, she is done testifying.  The last thing she said to the jury was Laci didn‘t deserve to die.  Her testimony was emotional, it was hard hitting, and this will sit with the jury all night, until court reconvenes tomorrow at which time the defense will begin presenting its part of the penalty phase.

Now, remember, lead defense attorney Mark Geragos today opted not to have an opening statement.  He decided to wait until the prosecution finished with its witnesses so we can certainly expect to hear an opening statement tomorrow from the defense team as well as their witnesses.  Not clear who is on the defense witness list, but we are expecting to hear from family members of Scott Peterson as well as some friends—Dan.

ABRAMS:  Jennifer London.  Thanks very much.

My “Closing Argument”—the spam our Web site receives every today.  Not really sure how we ended up on so many nasty mailing lists, but every day we receive hundreds of e-mails offering to help us engage in every type of sin.  The most obvious, the porn sites, telling ABRAMS REPORT about women who want to meet us now.  They include some, let‘s just say photos.  And if we want to prep for our meeting, we‘re regularly enticed to let‘s just say enlarge certain parts of our body.

Once we finish that procedure, we can head to other regular solicitors who offer pills, primarily sexual enhancement drugs.  Apart from sex, there are the sites that would help us well liquidate our assets.  Gambling sites offering us a—quote—“unique opportunity” to bet on just about anything offshore, including the Peterson trial.  And hundreds of e-mails claiming to be from wealthy foreigners desperate to help us by letting us help them cash in their—quote—“inheritance” or effectively launder millions for a fee I am certain.

So let me make one thing clear.  This is a legal program.  We‘re not going to utilize the services of a shady organization.  Some of them I would venture to say offering to help us commit crimes.  In fact, maybe one of these days we‘ll do a story on just one day‘s spam and try to figure out what‘s legal and what‘s not.  You have been warned.

I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night on the program marijuana and the Supreme Court hearing arguments over whether Congress can override laws in 11 states that allow for the use of medical marijuana.  One of my guests said that if you allow patients to grow marijuana for their own medical needs, cocaine might be next.  I said any doctor who prescribed cocaine ever would lose his license in a heartbeat.  It was a non-issue.

Dr. John J. Cannella at the University of Nebraska Medical Center in Omaha writes, “Physicians do prescribe cocaine on a daily basis in the in-patient setting.  It is used frequently by head and neck surgeons during sinus and—whoops—and nose surgeries.  Its vasoconstrictive properties make it an ideal agent for the control of bleeding during operative interventions.”

All right.  So apparently that‘s true, but it‘s not a prescription to take home cocaine or use it in the privacy of your own home.  If there are any doctors prescribing cocaine for outpatients, I would like to hear from them and doctors who also happen to be drug dealers, do not count.

Last Wednesday, we introduced you to a dad from Trenton, New Jersey, Robert O‘Neal.  I was stunned to hear is still part of a criminal investigation after chasing down a gang of punks who robbed him at gunpoint, threatened to rape his daughters.  One of the criminals was killed after Mr. O‘Neal‘s SUV hit and killed one of the thieves who was shooting at him after he fled the getaway car.

Many, many of you e-mailing supporting what I called a hero dad.  From Port Angeles, Washington, Jan Dockens.  “Good for him.  I can‘t believe the charges are even being contemplated against this brave, honest man.”

John Merrick in Daytona Beach, Florida.  “He took a chance and the bad guys lost.  Would any of us do the same?  It takes guts.  Pat him on the back and put the crooks away.”

Finally Mrs. Brosi—is how she referred to it—in Dallas, Texas. 

“Thank you for interviewing Mr. O‘Neal and giving him an opportunity to

tell his story.  He speaks for all of us who do not want to be victimized

by vicious thugs.”

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

A reminder, our blawg.  If you‘re a spammer, though, stay away.  It‘s called “Sidebar”, the blawg about justice—law.  And you can get it through our Web site, abramsreport.msnbc.com.  Click on “Sidebar”.  A lot of good stuff in there.

You know you can hear from me too.  And of course, sign up to get our daily newsletter so you can be the first amongst your friends to say hey, you know what THE ABRAMS REPORT is doing today?

Just don‘t send a spam (UNINTELLIGIBLE).  Coming up next, “HARDBALL” with Chris Matthews.  Thanks for watching.

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

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