updated 12/7/2004 1:43:37 PM ET 2004-12-07T18:43:37

Guest: Daniel Horowitz, Dean Johnson, Stacy Vasquez, John Yoo, Dixon Osburn, Jim Thomas, Victor Sherman, Stacy Brown

DAN ABRAMS, HOST:  Coming up:  Some of Scott Peterson‘s friends and family seem to be questioning the jury‘s verdict in front of—well, the same jury?  How will that help save Peterson‘s life?

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Another 14 witnesses testified today on behalf of Peterson, bringing the total to 28 -- seven times that of the prosecution.  Many of them talking about his golf game, or his fine manners while hitting the irons—a reason not to execute?

And Michael Jackson forced to give a DNA sample to Santa Barbara sheriff‘s deputies at his Neverland Ranch.  This part of the news we brought to you first on Friday that police were looking for DNA connected to a search of his bedroom.  Did prosecutors forget to get this evidence until now?

Plus, the Pentagon‘s don‘t ask/don‘t tell policy under fire from gay servicemen and women fired from their jobs because they told or got caught.  They say new rulings from the U.S. Supreme Court mean it‘s time to end the policy.

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  Live from Boca Raton, Florida, first up on the docket tonight, day five of the penalty phase in Scott Peterson‘s murder trial.  The defense is supposed to be trying to convince jurors that Peterson‘s life is one worth sparing.  But witness after witness took the stand today, some telling juries they made a mistake in convicting Peterson.  Others describing Scott and Laci as the perfect match, while others talked about Peterson‘s golfing acumen.

MSNBC‘s Jennifer London is live at the courthouse with the latest.  Jennifer, I don‘t see how any of this helps Scott Peterson.  Tell us what happened in the courtroom.

JENNIFER LONDON, MSNBC CORRESPONDENT:  Dan, as you mentioned, the defense called 14 witnesses on behalf of Scott Peterson today.  There was a former teacher of Peterson‘s, a former golf instructor.  We heard from one of Scott Peterson‘s uncles, some of his cousins.  A number of these witnesses said that they believe in their heart that Scott Peterson is innocent.

One of the witnesses even went so far as to say the jury made a mistake.  All of this with regard to being asked, if Scott Peterson should be allowed to live out the rest of his life in prison, all of these witnesses without fail saying absolutely yes.  They say Scott Peterson can still have a positive impact.

We did see some more emotional testimony coming later this afternoon.  One of Scott Peterson‘s former roommates, a gentleman named Bill Archer took the stand.  He started crying during his testimony as he described who Scott Peterson was like, what their friendship was like.  The two were work buddies.  They played at the same golf course and they did live together for more than a year.  I‘d like to tell you a little bit more about Bill Archer‘s testimony.

At one point, he said, Scott treated people with a lot of respect and was positive with those people that were around him.  He treated people extremely well and was friendly from the start.  And he said some of that rubs off as to, you know, various situations where you should probably try and treat people a little bit better as well—sort of speaking as if Scott Peterson was a role model.

We also heard from Bill Archer‘s wife, Carrie, who says that he knew Scott and Laci when they were together.  They even lived with her for a little bit as a couple.  When she was asked what would happen if Scott was sentenced to death, she said that knowing the person that Laci was and having to go through the loss of Laci and then also having to go through the loss of Peterson, she says it is just unimaginable.  It is unfair, she says.  She doesn‘t want to go there.

The final witness today, Dan, a woman named Julie Galloway.  She used to work with Peterson at the Pacific Caf’ in Morro Bay.  Scott Peterson was a waiter there.  She was a hostess. She said that Scott Peterson is the most generous man she‘s ever met.  She said that Peterson at that time was her very best friend.  She did get a little emotional at the end of her testimony.  And Scott Peterson for his part, present as always in court today, and he did get emotional at the end of Galloway‘s testimony.  He was seen wiping his eyes as he talked with lead defense counsel Mark Geragos.  We are told there will be 10 witnesses tomorrow, Dan.

ABRAMS:  So Jennifer, is it unfair, though, to say that there was a lot of talk today, also, about his golf acumen and some of these jurors seeming to question the jury‘s verdict?

LONDON:  As I mentioned, Dan, a number of the witnesses said they thought the verdict was a mistake, and that they believe Scott...

ABRAMS:  Yes.

LONDON:  ... is innocent.  At one point can I tell you that one member of the jury—he sits in the front row—he actually just looked away from this witness, when this witness said that, and would not make eye contact, would not look at the witness the rest of the day.  I noticed this morning when the jury filed in, not one of them would look at Scott Peterson.  And he‘s watching them very closely, Dan.  As they come in the courtroom he is looking at them...

ABRAMS:  Yes.

LONDON:  ... when all the jury members left the courtroom today, he‘s also looking at them and none of them would make eye contact with him.

ABRAMS:  All right.  Jennifer London thanks very much, as always, for that.  In the courtroom today, defense attorney, Daniel Horowitz and joining us is former San Mateo County prosecutor, Dean Johnson.  You know, guys, I don‘t know how to say this.  We talk about this again and again.  It seems that the defense is just going off on these tangents.

I get the questioning of these witnesses about the impact it would have.  I get the questioning about Scott Peterson being a generous guy.  But let me read you this, all right Daniel Horowitz.

As a younger golfer he had a tendency because of the way he did his golf swing, the ball would go off to the right.  We tried to get him to adjust his grip and make it so he didn‘t get that slice.  We finally got him to do that, but he took a little ribbing.  You could be tough on him, but he didn‘t mind.  He turned into a pretty darn good player.

Daniel Horowitz, you have had seven death penalty case‘s, not a single one where the jury has imposed a death penalty.  Would you have ever, ever, ever asked questions about Scott Peterson‘s golf acumen?

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  No, Dan, and when I saw those answers being given, it was the height of arrogance.  It‘s as if we are in a trial now that completely ignores the original trial.  Nobody talks about Laci, just about.  And you know what, Dan?  There is no real emotion shown by any witness, except non-family members—William Archer, his wife.  The closest you come is Janey Peterson, the sister-in-law.  This is a family—the Peterson family that is almost devoid of real emotion.  Everything is surface...

(CROSSTALK)

HOROWITZ:  ... and it‘s really sad.

ABRAMS:  And let‘s be clear, Dean.  We are not just talking about one witness.  I mean I just read from Charles Courtney who was Peterson‘s former employer.  Now I‘m going to read from David Thoennes, who is Peterson‘s former golf coach.

He said—quote—“Junior and senior year he was a starter and most valuable player.  I established what I call my All-Star team.  After 32 years of coaching, Scott is in top 10 of those.  Not only does your score count, but your attitude toward the team, assistance to the team, overall personality.”

Look, I‘m not there right now.  I‘m going to come there.  But Dean, this just seems to me to be trying to bark up the wrong tree, to focus on the wrong issues.  Who cares about some of this stuff...

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  You know Dan...

ABRAMS:  ... about him as a golf player?

JOHNSON:  Dan, you‘re absolutely right.  I sat in there this afternoon.  I thought I was in a hearing about a guy who was up for sainthood instead of a guy who was up for the death penalty.  This testimony has gone almost to the bizarre end of the spectrum.  We hear testimony—picture after picture of Scott Peterson gone fishing, almost black humor when they show Scott Peterson reading “It Was the Night Before Christmas” to his family.  We hear testimony...

ABRAMS:  Yes.

JOHNSON:  ... from a relative who says that she wanted Scott to grow up—her son to grow up to be just like Scott.  The jury is just not buying it.  We know that these witnesses are biased, but it‘s just not credible.  It‘s not...

ABRAMS:  Dean, but it sounds...

JOHNSON:  ... a complete picture...

ABRAMS:  But it sounds to me like he is applying for country club membership.  I mean these are the sort of questions...

JOHNSON:  Yes.

ABRAMS:  ... that are being answered, about his tendency to slice...

JOHNSON:  You know...

ABRAMS:  ... oh don‘t worry.  We got rid of that.  He was MVP and look his golf coach loved him.  We are not talking about applying to a golf club here.

JOHNSON:  You know, and you‘re absolutely right.  I think one of the huge problems throughout this case has been a communication gap.  The guilt phase of this case was almost like Beverly Hills versus Modesto.  This has been almost like Rancho Santa Fe versus Redwood City.  You have this blue-collar jury and they‘re hearing day after day of testimony of Scott with his golf game and his hunting—pheasant hunting at the family lodge, and tennis playing and so on.  That‘s not what this jury wants to hear.  That gives them no insight into why they should spare this man‘s life.

ABRAMS:  Oh, what a mess this is.  You know what?  I want to take a break.  Because one of the most important issues is still to come that we‘re going to talk about.  And that is the fact that some of these jurors are—sorry—some of these witnesses are questioning the verdict.  This is the same jury that found him guilty and now witnesses are getting up there and saying, hey, if you don‘t mind I want to point out you got it wrong.  How does that possibly help?

And the military‘s don‘t ask/don‘t tell policy allows gays and lesbians to serve so long as they don‘t—well, tell or get caught.  But in light of some recent rulings, a dozen service members challenging that policy after being relieved from duty.

Plus, Santa Barbara investigators spend the weekend at Michael Jackson‘s Neverland Ranch, checking out the floor plan, getting a DNA sample from Jackson himself.  With just a month or so to go to the trial, why are they doing it now?

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:  I don‘t believe he‘s guilty—that‘s what witness after witness in Scott Peterson‘s penalty phase told the same jury that convicted him.  How is that going to help them spare his life?  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  We are back.  In the Scott Peterson trial, the same jury that decided his guilt is now determining whether he lives or dies.  So you would think that at the very least, the witnesses, the lawyers would say look, we accept your verdict.  You don‘t have to agree with it, but you don‘t want the witnesses making commentary that they think that these jurors don‘t know what they are talking about.  Well that‘s what happened today in the penalty phase of Scott Peterson‘s trial.

John Latham, Scott Peterson‘s uncle—I don‘t believe he is guilty.  I know he‘s been found guilty, but in my heart I don‘t feel he‘s guilty.  I just can‘t believe that and I would not like to see him die.  It would tear our family apart.

Sandra Bertram, a friend of the Peterson family—I don‘t believe Scott‘s guilty of this crime.  I don‘t believe he could have done this. The person I knew, the family I knew, the child I saw daily could not have done this.  I don‘t want to see him put to death.

Robert Latham, Scott Peterson‘s cousin—I think this verdict is a mistake and in time things will change.

I mean, Daniel Honowitz, this seems like these are just witnesses begging these jurors to say we don‘t find you credible.

HOROWITZ:  Exactly, Dan, and I‘ll tell you what really bothers me.  Why not put these witnesses on during the phase when the jury is deciding whether Scott is guilty or not?  The defense could have put these character witnesses on, and maybe that would have given the jury some pause.

But now—I mean I don‘t want to make too much of a joke, but golf and he‘s not guilty?  It sounds like they are looking for a mulligan, a do-over.  And the jury is sitting there stone-faced saying give me something that we can really rely upon to spare his life, and they are not getting it.  But I still think that Jackie Peterson will ultimately save the day for her son.

ABRAMS:  She may.  Look, she may.  But in terms of what has been happening now, let me read you again—this is another topic that I don‘t know why they are delving into.  And that is witnesses basically talking about how lovely Laci is and what a perfect match they were.

Leeta Ann Latham, Peterson‘s cousin—first impression I had of her, meaning Laci, is she was a perfect match for Scott.  It took somebody like Laci to bring him out, kind of crack that shell on him.

Then Abraham Latham.  Anybody who meets Laci for the first time, it‘s like oh my gosh here she is, so full of life—so full of life.  Scott got this glow, met the love of his life written on his face, written on both of their faces.

You know, Dean, I had some of my—I wanted to check with my staff to make sure these quotes were right before we went with them today.  I just couldn‘t believe it.

JOHNSON:  Yes, it‘s hard to believe.  You sit there in the courtroom and it‘s hard to believe that you‘re hearing this.  It‘s almost as if the defense, through its evidence, is putting on a second victim impact statement, and all of Scott‘s family and friends are other victims because of the loss that they have suffered from the death of Laci.  And you‘re right.  This whole business of blaming the jury, literally turning to the jury and saying your verdict upset me—not the death of Laci or the disappearance of Laci or Scott‘s conduct, but your verdict.  It is a constant theme of shifting responsibility to anybody but Scott.  Now the jury is looking at each other and saying so now it‘s our fault?

ABRAMS:  And Daniel, bottom line is there are just too many witnesses, aren‘t there?

HOROWITZ:  Too many witnesses saying not enough.  As Judge Carrish (ph), one of Judge Delucchi‘s great friend said, sometimes too much is sometimes not enough.  There‘s a total absence of content emotionally so you start to say OK I get it.  This family has nothing to give.  Scott is a shell of a man, a smiley little golfer who nobody really knew.  And then, when Laci brought out the real Scott, whoa, it wasn‘t a warm...

ABRAMS:  Yes.

HOROWITZ:  ... kind man at all.

ABRAMS:  All right.  Well, look, you know, I think that Daniel may be right that Jackie Peterson, the mother of Scott, could end up saving his life here, finding one or two jurors who just say look at the impact it would have on her.  But I‘ll tell you if that happens, it certainly wasn‘t because of what we‘ve been hearing for the last couple of days.

Daniel Horowitz and Dean Johnson, as always, you guys are great. 

Thanks a lot.

JOHNSON:  Thanks, Dan.

ABRAMS:  Coming up, a group of gay soldiers are suing the Pentagon to get their jobs back.  They want the military‘s don‘t ask/don‘t tell policy overturned.  Is it time?  One of the soldiers involved in the lawsuit joins us.

And Santa Barbara police spent two days at Michael Jackson‘s Neverland Ranch.  They were not there for a slumber party, no, but to get Jackson‘s DNA and map out the house.  This just a month and a half before he goes on trial for child molestation conspiracy.  Why so much so late though?

(COMMERCIAL BREAK)

ABRAMS:  Don‘t ask/don‘t tell, it‘s the catch phrase used to describe the Pentagon‘s policy on dealing with gays in the military.  It‘s become part of the vernacular, but it‘s pretty much as vague as it sounds.  What it means is essentially members of the military are told, yes, you can be gay in the military, but no, you can‘t admit it.  Well, now 12 servicemen and women who were discharged from the armed forces for being gay are filing a federal suit challenging the policy asking for reinstatement.

Some of the former servicemen and women told their superiors they were gay to protect their safety.  Others admitted to it after being caught with someone of the same sex.  We‘ll debate the lawsuit, which could potentially spell the end of the military‘s policy in a moment.

But first, I‘m joined by Stacy Vasquez who was discharged from the Army in 2003 after she got—quote—“caught” kissing a woman.  She is one of the plaintiffs in the lawsuit.  Also with us is the executive director of the Servicemembers Legal Defense Network, which is representing the 12 plaintiffs, Dixon Osburn.  Thank you both very much for coming on the program, appreciate it.

All right, Ms. Vasquez, let me start with you.  What happened?  I mean what led to your discharge?

STACY VASQUEZ, SUING TO OVERTURN DON‘T ASK/DON‘T TELL:  Actually the basic circumstances that led to my discharge, I had been in the Army for over 10 years.  And I was a recruiter and one of the soldiers in my office, his spouse reported that she had seen me kissing a girl in a local bar, and my commander called me in and spoke to me about those allegations and gave me a choice to either make an admission that I was homosexual or possibly face criminal charges for an indecent act.

ABRAMS:  And you chose to do what?

VASQUEZ:  I wrote the statement.

ABRAMS:  It wasn‘t—you weren‘t lying in the statement, though, were you?  I mean you were just telling the truth.

VASQUEZ:  No, absolutely, in the statement—the statement is very simple and very to the point that, yes, I‘m a homosexual, and I would be glad to serve my country so long as I could do it with integrity.

ABRAMS:  And so you were under the impression that you were just going to write this statement, you were going to admit it, and that this—they would then move on from this and that you would not get discharged, correct?

VASQUEZ:  No, I very much knew that at the point when I wrote the statement that I would be discharged from the service, but I would be discharged with an honorable discharge versus possibly facing criminal allegations that would lead to a discharge later anyway because I was a paralegal and a recruiter, and you can‘t avoid a discharge if you‘re charged with anything criminal in the military.

ABRAMS:  And up to this point, though, you had been hiding your sexual orientation, is that correct?  I mean you hadn‘t gone on to, you know, a base or you hadn‘t in front of other military officials, et cetera, made a pronouncement.  You just got caught, right?

VASQUEZ:  Oh, no, sir.  I had really not ever spoken about it with anyone.  I just got caught.

ABRAMS:  Yes.  All right.  Let me do this.  I‘m going to ask you to stand by.  I‘m going to ask your attorney to stand by because I want to discuss and have a debate about the legal issues that are going to come up with this.  We‘ve now heard Ms. Vasquez‘s story.

The Supreme Court—the question, are they ready to overturn the military‘s don‘t ask/don‘t tell policy.  We‘re going to have a debate.

Michael Jackson‘s DNA now in the hands of the Santa Barbara district attorney, getting the sample just days before the deadline for turning over all evidence to the defense.  So why are prosecutors just asking for it now?

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, the Army asked and so she told, and then they kicked her out for being a lesbian.  Now she‘s suing along with 11 other former troops, trying to get the Pentagon to change its rules and let them serve, but first the headlines.

(NEWS BREAK)

ABRAMS:  We are back.  Former service members have tried to challenge the government‘s policy on gays in the military before.  But this time, a suit filed by 12 former servicemen and women says a recent Supreme Court ruling outlawing the sodomy laws changes every thing.

They claim—quote—“In Lawrence v. Texas, the United States Supreme Court recognized that the constitutional right of privacy encompasses a liberty interest in private adult consensual intimacy and relationships.  The court held that this is a full right that can be exercised without the intervention of government.”

Bottom line—they are saying—they say the new opinion means gays should be able to live their lives without being prosecuted for living them even in the military.  But the military‘s policy states, gays in the military pose—quote—“unacceptable risks to unit cohesion and military capability.”

“My Take”—it‘s a difficult issue.  The majority of the people in the military would probably say they don‘t want gays in the military.  That it could affect morale, et cetera.  But as a constitutional matter, I think it‘s tough to reconcile Lawrence v. Texas, that decision, with the military‘s policy.

Remember, in that case, they wrote—quote—“Other nations too have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate consensual conduct.”  The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries.  There‘s been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.

I know the lower courts have upheld the policy and yes it‘s different to say we don‘t want to avert gays in the military than it is to say it‘s illegal.  But it seems it is a policy no one likes but everyone seemed willing to live with based on previous Supreme Court rulings.  I think it may be time to say goodbye.

Joining me now to debate is Berkeley constitutional law professor, John Yoo, who served as a deputy assistant attorney general under John Ashcroft, and back with me is Dixon Osburn, executive director of the Service Member Legal Defense Fund, who is bringing the suit on behalf of Stacy Vasquez, and 11 other former members of the service.

Thank you all for joining us.  All right.  Professor Yoo, what am I missing here?  I mean I understand there‘s going to be some sort of distinction, but isn‘t it tough to say on the one hand you can‘t make it illegal, that gays have to be able to live their lives in privacy, and then on the other hand say, well, you know, we want them to effectively lie in the context of the military.

JOHN YOO, CONSTITUTIONAL LAW PROFESSOR, BERKELEY:  Well, the first thing to remember is that the military is different, and so a lot of the rights that we have as a constitutional matter, individual liberties that we have in civilian life, don‘t have a parallel in military life because the military has a different function.  It is about the national defense.

So to give some examples, if you commit a crime in the military system, you are subject to the court-martial system, which doesn‘t have a jury of your peers, the right to religious freedom, and religious expression is different.  So, for example, the Supreme Court has upheld the military‘s ability to require that you not wear religious symbols or insignia on your uniform.  So there are a lot of things that in the normal civilian life we permit as a constitutional matter, but in the military system, because of the need for morale, discipline, good order and unit cohesion we make some sacrifices because the military world is a different kind of world.

And so that comes through in several different ways.  The primary way in Supreme Court cases is that unlike Lawrence v. Texas, you will see courts giving a lot of deference to the judgments about—of the military and the judgments of the president and Congress about how best to run the military.  Whereas in the civilian world, you‘ll see courts being much more intrusive and reviewing the reasons that legislators and executives give for different rules.

ABRAMS:  All right.  Let me read the—what the code says and then I want to ask Mr. Osburn to respond.  The prohibition against homosexual conduct is a long-standing element of military law that continues to be necessary in the unique circumstances of military service.  And the DOD directive goes on, sexual orientation is considered a personal and private matter.  Homosexual orientation is not a bar to continued service unless manifested by homosexual conduct—your response Mr. Osborne.

DIXON OSBURN, SERVICEMEMBERS LEGAL DEFENSE NETWORK:  I think it‘s important for Americans to understand how this policy actually works.  Under this policy, you could have your diary taken and look for information about your sexual orientation, turned in by your psychiatrist, discovered.  As in Ms. Vasquez‘s case.  You can be turned in by your psychiatrist.

You can be discovered and as in Ms. Vasquez‘s case, by the civilian wife of a co-worker.  This policy is not about some benign gentleman‘s agreement where you can be quiet and discreet and continue to serve our country...

ABRAMS:  But you would not be satisfied with another system that kept this in place but didn‘t allow for invasions of privacy, would you?

OSBURN:  I think the only policy that works is one of nondiscrimination and if you...

ABRAMS:  Right.

OSBURN:  ... if you were to look back at the congressional findings back in 1993 -- and we are going to attack these pretty hard.  These really are just assertions.  It‘s just an assertion that gays somehow hurt, you know, cohesion.  In fact, all the facts and the research and the data point to the opposite conclusion.  There have been five military studies to date, all of which have said that the ban on gays should be lifted.

ABRAMS:  But that‘s not for the Supreme Court to decide, right?  I mean that‘s not an issue.  We can debate policy in the Congress.  The DOD can debate policy, but the U.S. Supreme Court is not supposed to be in the business of deciding what‘s good policy and what isn‘t.

OSBURN:  Well that‘s not framed quite correctly.  The Supreme Court certainly has the ability to review constitutional issues, and has also been clear in its cases that service members do not leave their constitutional rights at the door just when...

ABRAMS:  But that‘s right...

OSBURN:  ... they are in the military.  But...

ABRAMS:  But it‘s a constitutional issue.  It‘s not...

OSBURN:  Yes...

ABRAMS:  ... there is a difference though.

(CROSSTALK)

ABRAMS:  I don‘t want my viewers to get confused.  Go ahead.

OSBURN:  No, and I don‘t want them to get confused either, sir.  What the courts do, however—and this is what has been true of the cases that have come up to this point is that the courts often will defer to the military based on the rationales for whatever policy that they need.  What we‘re going to tell the court is that if you look at the rationales that have been offered, that they are just assertions.  They‘re just opinions.  They‘re not facts.  We are going to present them with the facts and it‘s going to make them a lot less willing to just defer to anything that the military tells them.

ABRAMS:  And let me go to you, Professor Yoo.  The United States trains members—this is part of the lawsuit—of its armed forces to live by values of honor, loyalty, and trustworthiness.  Yet the United States requires gay, lesbian and bisexual members to deceive their colleagues, friends and family by actively concealing their sexual orientation.

I think one of the most interesting points that they make is—and this is number one, if we can put that up when we get a chance—that during times of conflict, when unit cohesion is most important, the military has relaxed or ignored its ban.  During the ‘91 Gulf War, the Department of Defense announced that the discharge of known gay personnel could be deferred until those personnel were no longer needed.  I mean this does seem to say, Professor Yoo, that this is a policy in disarray.

YOO:  Well first, I want to hit on the point that you did, because I quite agree with it, which is that we can have a policy debate about this question.  But the question in the lawsuit is about which institution in our government is best suited to make this decision.  Do you want to have courts reviewing the judgments of military officers?

And let me add Congress just didn‘t make these findings on their own when they passed the don‘t ask/don‘t tell policy.  It was a product of years of study.  And if you look at the congressional record, you had testimony by people like Norman Schwarzkopf and Colin Powell at the time who said that it was important to have this ban in order to maintain unit cohesion, morale and discipline...

ABRAMS:  But isn‘t there an argument—but, Professor, isn‘t there an argument that the Supreme Court will take into consideration, and that is how this law—how this directive is being implemented in fact, and saying, you know they make exceptions at times when they like it, and then they don‘t make exceptions other times.  How can their rationale of unit cohesion really be so important?

YOO:  Well, as you say when you read those regulations, it‘s still up to the military to decide that, based on, as you said, in combat.  There are probably a lot of rules and military discipline that get relaxed in the combat theatre.  I think the point is we don‘t want courts overseeing that process and overseeing those kinds of decisions that commanders are going to make in the field.  Congress certainly could pass a statute...

ABRAMS:  Yes.

YOO:  ... if it disagrees with it.  The other point I might add is that it‘s a very rare...

(CROSSTALK)

YOO:  ... thing for the courts to overrule a judgment of both the president and Congress when they agree on a matter of military policy...

ABRAMS:  Yes.

YOO:  ... and that‘s what you‘re asking the courts to do here.

ABRAMS:  Yes, I think—look, I think this is going to be an uphill battle for the service members.  I think that based on the previous ruling of the Supreme Court, they probably should get rid of this policy, but we shall see.  And we‘ll have Dixon Osburn, Stacy Vasquez and Professor Yoo back on the program.  Thanks to all of you.  Appreciate it.

OSBURN:  Thank you.

YOO:  Thank you.

ABRAMS:  Coming up, a cotton swab, saliva and Michael Jackson‘s bedroom, they were all the focus of sheriff‘s raids on Jackson‘s ranch.  But why raid so close to the start of Jackson‘s trial?

And it seems the Army tried to make Pat Tillman into a hero for something he didn‘t do.  The thing is, he was already a hero for what he‘d done.  The Army should have just told the truth in the beginning.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Welcome back.  On Friday we told you investigators involved in the Michael Jackson case swarmed his Neverland Ranch for the second time in about a year, looking for DNA evidence.  Now, we were the first to tell you that it was DNA evidence and it was connected to his bedroom.  Well, that‘s—turns out is to be correct.  Jackson, himself, took off after cops arrived, saying it upset his children.  He returned Saturday and voluntarily let authorities swab his mouth for DNA.  Investigators reportedly also checking out sight lines from one room to another.  The timing is significant.  Today is supposed to be the day both sides turn over their evidence to the other side.  The trial is scheduled to start next month.

NBC‘s Mark Mullen has details.

(BEGIN VIDEOTAPE)

MARK MULLEN, NBC NEWS CORRESPONDENT (voice-over):  Michael Jackson‘s family and friends say the police raid amounts to nothing more than harassment.  The most recent search came just over a year after police staged their first dramatic encounter at Jackson‘s Neverland Ranch.  This time they came with two goals.

JIM THOMAS, FMR. SANTA BARBARA COUNTY SHERIFF:  They served a search warrant for two primary purposes we are being told.  Number one, to get measurements and drawings of the house itself.  The other was to get a DNA sample from Michael Jackson.

MULLEN:  Jackson who was at Neverland with his children at the time, declined to give a sample right away.

DAWN HOBBS, REPORTER, SANTA BARBARA NEWS-PRESS:  He did not by any means of what I understand refuse at all to give the sample.  It was more of a situation where his children, from what I understand from sources close to the family, were traumatized by the sudden presence of these law enforcement officers.

MULLEN:  Jackson and his children left Neverland and on Saturday, he returned in a well-coordinated rendezvous with police.  As Jackson‘s lead attorney was driving through the gates of Neverland, Jackson was arriving in this helicopter.  Then, two investigators were let in to collect the sample.

THOMAS:  The way they do that is with a cotton swab and they actually swab the inside of the cheek for saliva.

MULLEN:  Since Jackson was arrested in January for allegedly molesting a young cancer patient, police have executed more than 100 search warrants.

HOBBS:  It‘s unclear why the prosecutor did not take DNA from Mr.

Jackson prior to this.

MULLEN:  Something that could be revealed relatively soon.  Jackson‘s trial is scheduled to begin January 31.

Mark Mullen, NBC News, Los Angeles.

(END VIDEOTAPE)

ABRAMS:  Joining me now, Jim Thomas, who is the former Santa Barbara County sheriff who led the 1993 Jackson investigation and NBC analyst, Victor Sherman, Los Angeles based criminal defense attorney and Stacy Brown, Jackson family friend and MSNBC analyst.

All right.  Jim Thomas let me start with you.  Why now?  I mean a lot of people are asking the question they—this case has been going on over a year and suddenly they need Michael Jackson‘s DNA the day before the prosecutor is obliged to turn over all of the evidence to the defense?

THOMAS:  Here‘s a quick answer.  I don‘t know.  But they did need the swab because it‘s a comparison.  So if they have DNA in the home, then they‘re—at least be able to compare it with Michael Jackson, so it was necessary.  And remember, Judge Melville, the judge of the trial, is the one who authorized the warrant to be served last Friday.

ABRAMS:  And that‘s the point I think, Victor Sherman, is that this is a judge who has been critical of the prosecutor at times about the way the search warrants have been executed, and has challenged them, has restricted certain pieces of evidence from coming in, et cetera.  And yet, he signed off on this warrant, so there must be a good reason, right?

VICTOR SHERMAN, CRIMINAL DEFENSE ATTORNEY:  Well, all he has to do is make a determination that‘s probable cause.  He can‘t say whether it‘s a good tactical decision or not or whether the prosecution has waited too long.  He‘s not in the position of a defense attorney to make those decisions.  If they present him with a search warrant and there‘s probable cause in the affidavit, then he has really no choice but to sign the warrant and I think...

(CROSSTALK)

SHERMAN:  ... he‘s going to leave it up to the defense attorneys to...

ABRAMS:  Yes, I agree with you on that...

SHERMAN:  ... that it was improper.

ABRAMS:  What‘s the reasoning though?  I mean give me a hypothetical as to why the prosecutors might have needed until now to get—I mean a DNA swab from Michael Jackson seems like the most obvious piece of evidence you need.

SHERMAN:  Well, you would think that and it sounds to me like maybe more important was in the preparation for trial, they realized the defense was going to bring up certain defenses, like for instance the sight lines or what the dimensions of the various rooms were.  So this seems to me they‘d be more important than the swab.  That is what the dimensions of these various rooms that they are going to present at trial because apparently they had various experts at the ranch that they‘re going to use to make demonstrative evidence.

So that may have been the most important reason.  What I wonder was why they just didn‘t make a motion in court.  Why do they have to traumatize the Jackson family by a search when they could have made a motion in court to get permission to do these same things without the necessity of this—you know, this type of activity that‘s intended to intimidate.

ABRAMS:  Yes.

SHERMAN:  That‘s what I don‘t understand.

ABRAMS:  Jim, what about that?

THOMAS:  Well I don‘t think it‘s intended to intimidate and there were far fewer people that went.  As I understand it, they gave Michael and his family 45 minutes or so to go ahead and get ready and they went somewhere else before they went in, so I understand it was a fairly low-key operation as opposed to what people like to refer to as a raid.

SHERMAN:  OK, but they could have done it...

ABRAMS:  Stacy...

SHERMAN:  ... why didn‘t they just make a motion in the court and say to the judge, hey, we need go out.  We want to make some demonstrative evidence...

UNIDENTIFIED MALE:  Well...

SHERMAN:  ... give the defense notice.  It‘s not like they were going to demolish the house or anything...

(CROSSTALK)

ABRAMS:  But if there—I don‘t know, but the answer is, if there had been another way to do it, maybe the judge would have said, look, why don‘t you just make a motion in court as opposed to going to the house?  Because you know, a search warrant is something that isn‘t supposed to be the first option.  That‘s something the judge, I‘m sure, considered.  But who knows.

All right.  Stacy Brown is—I know the family is very upset.  I know the friends of Michael Jackson are very upset.  They view this as harassment.  But is there any sense amongst the defense team and the family and the friends that says hey, maybe this is good for us.  Maybe this means that this is a prosecution that is kind of aimless.  Maybe this is a prosecution that hasn‘t dotted all the I‘s and crossed all the T‘s.

STACY BROWN, JACKSON FAMILY FRIEND:  Well yes, Dan.  I spoke to several family members who have made that comment.  And most recently I even talked to Frank DeLio , who is Michael‘s manager, who said his first reaction was this is good for us because this shows that they probably don‘t have anything anyway.  And this is a last-ditch, 11th-hour desperate attempt to collect evidence that doesn‘t exist.

ABRAMS:  All right.  I apologize to everyone.  I got to wrap it up.  I wanted to spend more time on this.  Jim Thomas, Stacy Brown, Victor Sherman -- a great panel.  Thanks very much.  Appreciate it.

Coming up, Pat Tillman gave up a pro football career to fight for his country in Afghanistan.  He died a hero there.  So why did the Army apparently invent the story about the way he died?  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Pat Tillman fought as a hero.  He died as a hero in Afghanistan.  So why did it apparently take the Army so long to come clean about the way he was killed?  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why the Army‘s apparently false story about the heroism of Army Ranger Pat Tillman, only to Tillman and his comrades a disservice.  Tillman was the pro football defensive back who gave up a lucrative NFL contract to become an Army Ranger, in and of itself, a true act of patriotism, then the news in April that he had been killed in battle in Afghanistan while searching for al Qaeda terrorists.

The Army issued a statement describing how Tillman effectively barked commands while returning fire toward the enemy.  It turns out little of that was true.  Tillman it now seems was kill by friendly fire, likely a series of mistakes by younger Rangers.  The Ranger nearest to him recalled his final words as cease-fire, friendlies.  Senator John McCain said this weekend that questions from Tillman‘s own mother about her son‘s death led him to meet with Army officials to try to get some answers.

“The Washington Post” quoted the senator as saying—quote—“The family deserved some kind of heads up.”  Of course he‘s right, but you‘ve got to wonder why Army officials didn‘t come clean in the first place.  Did they really think the truth would never come out?  That it would benefit Tillman or his family?  I went back and looked at a “Closing Argument” I did on April 23.  I praised Tillman as a true American hero.  I said I couldn‘t think of any words to describe his valor apart from those—someone who had so much and chose to give it up for his country.

At that point, we didn‘t know exactly how he died.  The story of his cresting the hill as he fought off the enemy while more compelling for a movie, doesn‘t make him any more heroic than the true facts.  Maybe he wouldn‘t have been awarded a posthumous Silver Star, but it‘s not fair to the other men and women who have died in battle to alter the facts for just one.  From what I‘ve read about Pat Tillman, he wouldn‘t have wanted it and his family, his comrades and his country deserve to know the truth.  Everything I said back then still applies.  The term hero alone still does not do him justice, friendly fire or not.

“Your Rebuttal” is coming up and police call them America—police call these particular people “America‘s dumbest criminals”, the stars of our first “Legal Lite”.  We want you to name our new segment.  We‘ll be back in 60 seconds.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  I‘ve had my say, now it‘s time for “Your Rebuttal”.  Jurors continue to hear from friends and relatives of Scott Peterson in the penalty phase of his trial, an effort to save him from the death penalty.

Pat Post in South Lyon, Michigan.  “I watch your show every night and enjoy it very much.  I would like your opinion on having a law that would ban the death penalty unless there‘s DNA evidence that proves 100 percent that the defendant is guilty.  I can‘t imagine giving someone the death penalty on a circumstantial evidence case.”

Pat, thank you—DNA, though, is circumstantial evidence.  It is.  The problem is that in any case where a husband kills a wife, for example, DNA evidence may not mean much because both of their DNA may be at the crime scene.  Not because of the murder but because they live together.

In my “Closing Argument” Friday, your local mall security guard becoming more important than you may know.  They‘re now taking classes on how to spot possible suicide bombers and how to prevent a terror attack and this holiday season maybe it‘s time to look at your mall security team in a new light.

From Clearwater, Florida, Chris Cozzolino.  “That was a huge point you made about private security guards in shopping malls.  The same can be said of the entire private security industry.  There are thousands more private security staff than there is in all the federal, state and local police in this country.  They are the most likely to have to react first in crisis.  We can teach them to also proact.”

And last week, a 23-year-old teacher here in Florida who now says she was legally insane when she had sex with her 14-year-old male student.  I said if the tables were turned and a male teacher was accused, we would just call him a pervert and that while if she‘s guilty she should be punished, I‘m more concerned about male predators than female ones.

But Wayne Blackmon in Bethesda, Maryland, who apparently signs all of his e-mails with “MDJD” next to his name to remind everyone what degrees he has is not happy.  Quote—“Your coverage of the woman having sex with a minor boy is appalling and ignorant.  I teach law and psychiatry as well as scientific evidence at George Washington Law School.  It is shocking for a lawyer in your position to disseminate and promote ignorance and falsehood.”

I‘m sorry Mr. Blackmon that you think it is ignorant to say that male sexual predators are a far more serious societal problem than female ones.  If you have any evidence to contradict that statement, I will put it on our Web site.  Signed Dan Abrams, J.D.

Finally, Sam Kelly in Silver Spring, Maryland with an important observation.  “I found it highly annoying that you spent most of the show leaning or slouched back in your chair and with a very bored look on your face.  You have done this a number of times on previous shows as well.  Frankly, your bearing was atrocious.  Surely you can manage to sit up straight and look professional for the one hour a day that you are on the air.”

Sam, slouch, maybe.  Bored?  I promise you, I am not.

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

And now, for the first of what is going to be a regular feature on this program.  For now, we‘re calling it “Legal Lite”—stories about America‘s strangest criminals, weirdest lawyers, and most pathetic lawsuits.  And I‘ve got to tell you, while we love the idea, we‘re not thrilled with the name, so we‘re holding a contest hoping you can come up with something better.  The winner gets a great holiday package of MSNBC merchandise and credit on the air—more on the contest in a moment.

But here‘s the idea—our “Legal Lite”.  It happened in Callaway, Florida, a small city in the panhandle.  Police there got a call last week from 18-year-old John Douglas Sheetz and 17-year-old Misty Ann Holmes, a couple promptly awarded the title of America‘s dumbest criminals by a narcotics officer.

Police say when Sheetz and Holmes came home Thursday, they found someone had broken in and grabbed the quarter pound of pot they‘d planned to sell.  Yes, that‘s just what they told police when they called to report the break-in.  When detectives arrived, Sheetz and Holmes were just as helpful or brain dead, letting them in for a search that turned up marijuana stems and drug paraphernalia.  The not so happy couple hauled off to jail where they‘re being held on $17,500 bond, giving the word dope new meaning.

Back to the contest—to enter, our Web site abramsreport.msnbc.com.  All the rules are there.  So is the entry form.  You come up with a new name for the new segment.  You get the bag of goodies.  We‘ll find the weird stories.

That does it for us tonight.  I want to thank the folks here at the Saint Andrews Country Club in Boca Raton for their help.  I‘ll see you tomorrow from Redwood City where jurors are still hearing evidence in the Scott Peterson case.

Thanks for watching.  See you tomorrow.

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

END   

Copy: Content and programming copyright 2004 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2004 FDCH e-Media, Inc.  (f/k/a Federal Document Clearing House Inc., eMediaMillWorks, Inc.), ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and FDCH e-Media, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

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