updated 12/8/2004 2:06:40 PM ET 2004-12-08T19:06:40

Guest: Gerry Spence, Daniel Horowitz, John Blume, Mike Cox, Kenneth Starr

DAN ABRAMS, HOST:  For the first time the prosecution fights back in the penalty phase, cross-examining a witness called to try to save Scott Peterson‘s life.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Jurors hear from Peterson‘s friends, one even talking about Laci Peterson punching the dog—a fight Scott had to break up.  But does any of this testimony matter?  Have jurors already made up their minds?  We‘ll talk with an expert on death penalty jurors who says they probably have.

And today the law catches up with a confessed serial killer, sentenced to life in prison.  No chance of parole.  This after Coral Eugene Watts was set to walk out of prison.  That is, until one of our viewers saw his picture on our show.  That man became the witness to the murder that put away Watts for good.

Plus, Ken Starr is back.  This time fighting in the U.S. Supreme Court for my right to have wine shipped to me from California.  The other side says that could mean problems with underage drinkers.  Starr is here to debate.

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket, I am live at the courthouse where Scott Peterson‘s defense team put on six more witnesses today.  Thirty-four now of Peterson‘s friends and family have testified, describing him as everything from a super guy to a first-class gentleman.  His former boss ranked him as one of his top three waiters ever.  His former coach put him in the top 10 on his all-star golf player‘s list.  While the case is expected to wrap this week, the defense isn‘t done.

Jennifer London joins me now.  So Jennifer, how is the jury reacting to all these witnesses?

JENNIFER LONDON, MSNBC CORRESPONDENT:  Dan, I would say the jury is attentive.  They are certainly listening.  But we are not seeing an emotional reaction from this jury to the defense witnesses.  Remember, there was very powerful testimony when the prosecution presented its case.  We had some of the jurors in tears when Laci‘s mother, Sharon, testified. 

We are simply not seeing that with the jury.

Now, that being said, they are taking notes and they are listening. 

We did see some emotional testimony today from a couple of the witnesses.  We heard from Scott Peterson‘s former boss.  This was when Scott Peterson worked at the Pacific Cafe.  He was a waiter.  Dan, as you mentioned, his boss said he was one the top three waiters that he ever worked with.  He said that Scott had—quote—“a fantastic work ethic”.  He did become emotional on the stand when he was asked how would you feel if Scott Peterson received the death penalty.  He started to cry.  He apologized for crying.  And he said there simply are no words to describe how I would feel.

The jury also heard from a former neighbor of Scott and Laci‘s in Modesto, Susan Medina.  You may remember her name.  She did testify earlier in the trial as a prosecution witness.  She said that she‘s a nurse and she‘s seen the joy of birth, she‘s seen the pain of death.  Basically making an indirect argument against the death penalty.  Now, we know that there will be four, five, maybe six witnesses tomorrow.

We also know that Scott Peterson‘s mother, Jackie, will be the final witness.  And remember, the prosecution‘s final witness was Laci Peterson‘s mother, Sharon Rocha.  Perhaps the defense is trying to put a little distance between that powerful testimony, and, Dan, perhaps they are hoping that their final witness will also have the impact that the prosecution saw with Sharon‘s testimony.

ABRAMS:  And many people believe that at least a couple of the witnesses today finally had some impact, after hearing witness after witness that seemed to be saying nothing but that Scott was a great golfer and a great guy.  Jennifer London, as always, thanks a lot.

There was a first in the courtroom today.  The prosecution cross-examined the defense‘s 33rd witness.  Prosecutor Dave Harris asked Robert Thompson, Laci and Scott‘s college professor how Laci‘s murder affected him.  Came up at the end of the questioning by the defense.

He said I‘ve been grieving ever since.  I was close to Laci and she was such a warm, just lit from within type of person, so I miss her terribly.  At the beginning of all of this, like everyone I had my doubts about could Scott do such a thing and I have to just go with what I know.  I have eight years of experience with this fine young man.  Have to go with what I know and not what the media says.  Yes, I am still grieving.

“My Take”—well he was certainly a good witness today.  What the media says?  So now the witnesses are telling jurors that they were influenced by the media, not the evidence?  It‘s about time prosecutors asked some questions here.

Joining me now, the great criminal defense attorney Gerry Spence, and in court today, once again, California attorney Daniel Horowitz.  All right.  So Gerry, we‘ve been talking about this case every day and talking about witness after witness and golf coach, and this person saying Scott was terrific, Scott was great.

If we can get number three up—Peterson‘s college golf coach today, Gerry, said when he was asked how did he get along with the other players, everybody liked Scott.  He was one of those guys that would make you feel good, but it wouldn‘t be fake.  He would take some of our nerdy guys and make them a part of things.  Every time I see someone say Scott was arrogant, I say no, incorrect.  He was confident.  All of these witnesses talking about what a great golf teammate and player he was, it seems like the way to save someone‘s life?

GERRY SPENCE, CRIMINAL DEFENSE ATTORNEY:  Well I—you know, O.J. 

Simpson was a great guy, too...

(LAUGHTER)

SPENCE:  ... and everybody liked him and lots of people still do.  But

I thought that there was a lot of people there that did testify to some of

·         he was a generous man.  They talked about his generosity, the fact that he was a kind person, that he—they never saw him angry.  Some people—one person said that they wished that their own son would grow up like Scott Peterson.  It‘s—and so what we really have here, you know, is a kind of tug for the soul and the heart of this man.  Is there something good that can be saved?  Somebody asked can this man do something worthwhile in jail if he‘s put there, and the answer was that this was somebody that could do good in the penitentiary for other people.  So...

ABRAMS:  But...

SPENCE:  ... I think the jury...

ABRAMS:  ... see Gerry that to me is different, talking about whether he could do good in the penitentiary.  I mean I can see why they‘d want to call witnesses to that effect.  But they have been calling witness after witness talking about what a great golfer he was and about his slice.  And in fact Gerry, one witness today went a little bit far, I think, and let me read you this.  This is from Eric Sherar, Scott Peterson‘s friend and former neighbor.  This is about—something about a fight that Scott Peterson apparently prevented.

Laci was getting pretty upset about it.  In the heat of everything, she, you know, she started punching my dog and I could see things escalating and Scottie kind of mellowed everything out.  We got the dogs apart and I could see myself looking up at both of them, you know, this could really turn out ugly.  But it didn‘t.  It didn‘t.  He mellowed things out.

So now we‘re talking about Laci punching dogs, too?

SPENCE:  Well, you know, when you hear testimony like that, you begin to see a picture of Laci, maybe, that people hadn‘t seen or didn‘t know about before.

ABRAMS:  But that‘s not smart, is it, Gerry...

(CROSSTALK)

SPENCE:  I‘ll tell you what is—what‘s the terrible problem that the defendant has here.  This defendant has said all along, I am not guilty.  I didn‘t do this.  I am an innocent man.  Now he has to come before this same jury and he has to say to this jury save my life.  I didn‘t do it and you were wrong.  You made a wrong decision here.

And so the thing that‘s really working for him along the line here, Dan, is that there‘s a residual—kind of a residual doubt that the jury still has.  This was a circumstantial case, and this jury is going to say when they go back to deliberate out of their heart, there‘s going to be a sort of sense of reserving themselves from the potential of killing an innocent man, even though it was proved beyond a reasonable doubt to them that he was guilty.

ABRAMS:  And let me focus on that aspect of the law.  The judge has decided that he will give this instruction.  Says he doesn‘t do it all the time, but in this case he think it‘s appropriate.

Lingering or residual doubt is defined as a state of mind between reasonable doubt and all possible doubt.  You may consider lingering doubt as a factor.

Daniel Horowitz, do you think as a legal matter, what you heard today with the judge and the jury instructions tells you that the defense has made some mistakes here?

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  I think so, Dan.  We‘ve been wondering why the prosecution allowed Mark Geragos to ask witness after witness what would be the effect of the execution of Scott on you, uncle, aunt, cousin, and that‘s objectionable.  Under California law you can‘t consider the impact on the family of Scott‘s execution.  Now we know why.

Geragos asked the judge to change the law and to allow him to make the argument to the jury that that does influence their decision.  Judge Delucchi said no way.  Now imagine this.  The prosecution tells the jury all of that impact evidence, that emotional evidence throw it out.  What are you left with?  All you‘re left with is Scott was a good golfer, and the words, but not any demonstration, the words, yes, he was generous, he was kind, he was a good man.  No examples, but just those words, not enough.  It‘s a very empty defense argument.

ABRAMS:  You know, Daniel, our friend reporter Edie Lambert over at KCRA is saying that the defense is hoping to call a couple of the bailiffs who have been escorting Scott to and from the jail, essentially saying look he‘s been very cooperative, he‘s always been a nice guy, et cetera.  That to me does seem to be something where it‘s relevant, because it could be saying he could be productive in prison.

HOROWITZ:  Yes.  I mean that‘s a standard technique, when you have a client like Scott who‘s well behaved.  And remember, a lot of these deputies have rubbed elbows with the jurors.  It‘s almost like a stamp of approval.  This deputy likes Scott, and you trust the deputies.  So that‘s the traditional move we make in death cases.  We don‘t usually put on the fact that somebody is a good golfer over and over again.  That doesn‘t seem to work for me.

SPENCE:  But you know, in the final analysis, this judge is going to let—I predict this.  This judge is going to let Geragos argue anything that he wants to argue, even though...

(CROSSTALK)

SPENCE:  ... even though it may not be proper to argue that the victim‘s families—that Scott‘s family are also victims.  The mother—

Scott‘s mother is a victim.  His brothers and sisters are victims.  The court is—because they were innocent.  Don‘t you understand?  They had nothing to do with this and now there‘s going to see their own child killed.  And this is a terrible—it makes victims of them.  So what I‘m trying to say to you is that ultimately, even though those kinds of arguments may not be allowed by the law, my prediction is that the judge is going to let Mr. Geragos argue everything that he wants to argue and that he should be able to argue anything that he wants to argue.

ABRAMS:  All right.  Let me take a quick break here.  Coming up—

Gerry and Daniel are going to stick around.  Coming up, my next guest, an expert on the death penalty says jurors have probably already made up their minds.

And my regular viewers know I like to drink my California wine.  When I‘m in California here, I can get it shipped to me.  I can even get it shipped to my hotel.  But not when I‘m in New York.  That‘s never made any sense to me.  Now Ken Starr is taking my and every other wine-lover‘s case to the U.S. Supreme Court.

And today, a confessed serial killer gets life behind bars.  He was to get out in less than two years even after admitting to 13 murders.  But one of our viewers called the authorities became the chief witness against Coral Eugene Watts.  The attorney general of Michigan is with us.

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, is it possible that all of these witnesses in the Peterson case are just a waste of time?  My next guest says oh probably and he should know.  Coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

LEE PETERSON, SCOTT PETERSON‘S FATHER:  We‘re a good family.  We don‘t have any record of anything...

JACKIE PETERSON, SCOTT PETERSON‘S MOTHER:  He doesn‘t either.

L. PETERSON:  ... he doesn‘t.

J. PETERSON:  You can look.

L. PETERSON:  There was no domestic violence.

J. PETERSON:  No drugs...

L. PETERSON:  No, nothing...

J. PETERSON:  No financial problems.  He worked three jobs to put his self through college and helped his wife through college.  They both worked hard to get everything they had, and they were enjoying it to the hilt, and they adored each other.

(END VIDEO CLIP)

ABRAMS:  That was Scott Peterson‘s mother, Jackie.  She‘s expected to be called as a witness in court tomorrow telling—to tell jurors why they should not sentence Peterson to death.  The question, of course, is it going to be enough to spare her son‘s life, or have they already made up their minds?

Our next guest says they may have.  John Blume, director of the Cornell Death Penalty Project, has overseen the interviews of hundreds of death penalty jurors to find out what goes on behind the scenes and back with me again are Gerry Spence and Daniel Horowitz.  All right, Professor Blume, do you think they‘ve already made up their minds?

JOHN BLUME, CORNELL DEATH PENALTY PROJECT:  Well I think certainly some of them probably have.  The empirical research, the interviews that we‘ve done with hundreds of jurors who sat in cases in which the defendant was sentenced to death and the defendant was sentenced to life indicate that despite the fact that the judge is telling the jurors to keep an open mind, not to reach a decision until they‘ve heard all the evidence, that jurors in capital cases frequently decide on whether they are going to sentence the defendant to death or to life imprisonment early on in the case, often in the guilt or innocence phase, sometimes early on in the guilt or innocence phase.  So I think there‘s no reason to believe that phenomena isn‘t occurring here, and some of these jurors have decided and probably decided early on whether they were going to vote for life or death.

ABRAMS:  And Daniel Horowitz, let‘s say the defense can show that based on juror interviews after the fact.  Would that lead to a new trial?

HOROWITZ:  Not really, Dan.  This jury has seen the evidence.  They know the circumstances of the crime.  We‘re not talking about jurors refusing to deliberate or jurors that have expressed an opinion, you know, outside of the jury room during the proper time for deliberations.  What I‘m hearing from the professor is that basically people have made up their minds.  Now, every juror is paying close attention during much of the testimony.

So it‘s not like they are just looking off in space, so I don‘t think it‘s grounds for reversal.  I do say just as a prediction, jurors number two, the Catholic who had to consult his priest before he sat on the jury, and number four seemed to be looking for a reason to let Scott live.  They may hang up this jury.

ABRAMS:  You know...

HOROWITZ:  I don‘t think anybody‘s going to get (UNINTELLIGIBLE).

ABRAMS:  Before I go back to Gerry Spence, Professor Blume, I want you to listen to this piece of sound from Jackie Peterson, the mother of Scott.  It‘s probably illustrative of testimony we‘re going to hear.

(BEGIN VIDEO CLIP)

J. PETERSON:  In his whole 30 years there‘s never been a temper. 

It‘s, you know, it‘s just not even in his nature.

(END VIDEO CLIP)

ABRAMS:  All right.  So Professor, I mean, we heard from Sharon Rocha, the mother of Laci Peterson, giving this very emotional testimony.  Do you think that there may be a handful of jurors, though, who might still be open to hearing Jackie Peterson plead for her son‘s life?  And when I say open to hearing it, of course they‘re all open to hearing it, but I mean open to hearing it in the sense that it might change their opinion about whether to impose the death penalty.

BLUME:  Well it‘s certainly possible.  We know from the empirical research that there are three primary factors that drive jury decision making in capital cases.  The first is how bad the jurors perceive the crime to be.  The second is how dangerous they think the defendant is likely to be or is or is likely to be, and the third is remorse.  Do they think the defendant is sorry or has accepted responsibility?

Now they‘re not independent variables.  They work together somewhat.  And those are the main factors, which drive capital decision-making.  We also know, although we‘ve only had victim impact evidence in capital cases for about a little more than 10 years now, that the empirical research which exists today shows that although jurors are emotionally affected by the victim impact evidence, it appears to have very little impact on their ultimate decision-making.

ABRAMS:  Yes...

BLUME:  Execution impact evidence...

(CROSSTALK)

BLUME:  Execution impact evidence, which you anticipate hearing, is also relatively new, and we don‘t have any empirical information about that, and it may likely be that it doesn‘t have that much of an effect either.

ABRAMS:  All right.  Gerry Spence, finally what do you think is the defense‘s best hope here?

SPENCE:  What do I think what, sir?

ABRAMS:  Is the defense‘s best hope here in saving Scott Peterson‘s life?

SPENCE:  The best hope is, of course, the idea that if you were going to reverse roles and you are now a juror and you‘ve decided this case on circumstantial evidence, don‘t you understand?  And you‘re thinking to yourself, you know, this is circumstantial evidence and I might be wrong, and I don‘t think I‘m wrong, and the defense hasn‘t really shown me an answer to this, but I could be wrong, and so I‘m going to vote for a guilty, but I‘m going to reserve the right not to send him to death.  I‘m going to make sure that I‘m not guilty of killing somebody based on evidence that I‘m just not totally certain of.

ABRAMS:  Yes.

SPENCE:  And I think that‘s the best hope in this case.

ABRAMS:  I think you‘re absolutely right.  Gerry Spence, one of the greatest.  Thanks again for coming back on the program.  And Professor Blume and Daniel Horowitz, great to see you both.  Thanks a lot.

BLUME:  Thank you.

ABRAMS:  Coming up, I want to whine about my wine.  I want to be able to have it shipped from California.  And yet, it may take Ken Starr winning the case in the U.S. Supreme Court for me to get it.  We debate with the Michigan attorney general, the Ken Starr.

And a serial killer brought to justice because one of our viewers was an eyewitness to a murder 25 years ago.  Today Coral Eugene Watts sentenced to life without parole.

(COMMERCIAL BREAK)

ABRAMS:  The Supreme Court heard arguments today on another issue that‘s divided the country.  This time it‘s not about the election, but who can get wine delivered at home from out of state vineyards or stores.  So on our map, the 24 blue states are feeling depressed come holiday time because their state laws are strict out of state deliveries, while the red states are flushed with fine wine from wineries around the country, which their laws allow consumers to have delivered to their homes.

What happened to ensuring that all states do not discriminate against one another?  NBC‘s Tracie Potts has the story from Washington.

(BEGIN VIDEOTAPE)

TRACIE POTTS, NBC NEWS CORRESPONDENT (voice-over):  Jim Law has been making wine for 20 years, but he can only sell it in Virginia.  He says customers are frustrated.

JIM LAW, VIRGINIA WINEMAKER:  They can‘t believe that in the United States I cannot ship them a bottle of wine.  It makes no sense at all.

POTTS:  Though most wine is bought in stores, direct shipping has become more popular, especially over the Internet.  Twenty-four states allow local companies to ship wine, but ban shipments from out of state wineries.  Their concern—underage drinking.

KAT WALSH, 20-YEAR-OLD COLLEGE STUDENT:  I went online to one of these Web sites and all I had to do was check that I was 21.  There wasn‘t any other kind of way to check that I was 21.  And I ordered it, and it was delivered to my doorstep.

POTTS:  In court the justices questioned whether less restrictive measures like requiring licenses for out of state vintners would be just as effective.  Wholesalers argue the 21st Amendment give states the right to regulate.

MARK PERRY, WINE & SPIRITS WHOLESALERS OF AMERICA:  The availability to minors is the important thing and the ability of states to make that decision, how best to protect the minors of their states.

POTTS:  But small mom and pop wineries claim it‘s all about money.  Middlemen, wholesalers and distributors protecting their turf in this $32-billion industry.

CLINT BOLICK, PLAINTIFF‘S ATTORNEY:  This is a classic David versus Goliath battle.

POTTS (on camera):  For wine makers, especially small ones like this, opening the market means not only more customers, but more competition.

(voice-over):  Jim Law says that‘s a good thing.

LAW:  The competition is fierce, and that‘s making us make better wines.

POTTS:  For now he‘ll just have to keep it close to home.

Tracie Potts, NBC News, Washington.

(END VIDEOTAPE)

ABRAMS:  So who‘s fighting for my right to buy wine online?  Ken Starr, the former Whitewater independent counsel and former solicitor general who was in court today.  We‘ll talk with him when we come back and with Michigan‘s attorney general who‘s fight on the wrong side of this one, to keep his state‘s laws to ban direct shipments to consumers on the books.  I have a strong opinion about this one.

And...

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  I never killed her.  I never seen her before in my life and that‘s one murder that I did not do.

(END VIDEO CLIP)

ABRAMS:  Facing a sentence of life without the possibility of parole for first-degree murder, confessed serial killer, Coral Eugene Watts, says oh I didn‘t do this one.

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, you can buy Viagra and porn online, but in 24 states you can‘t buy wine.  But that could change soon, if Ken Starr gets his way.  He helped bring a case to the U.S. Supreme Court that would let the wine flow.  Not everyone thinks that‘s such a good idea.  We debate with Starr and Michigan‘s attorney general, but first, the headlines.

(NEWS BREAK)

ABRAMS:  We‘re back.  Arguments about fine wine were on the table at the U.S. Supreme Court today.  At issue, laws that dates back to the 1930‘s when the Constitution was changed to end prohibition—the legal ban on sales of liquor, beer and wine laws, which gave the states the power to regulate alcohol sales.  Now those laws in Michigan and New York have been challenged on the grounds that they discriminate against consumers and winemakers from certain states.  It‘s because both New York and Michigan banned direct shipments of wine from out of state, but allow consumers to buy directly from wineries from inside their state.

“My Take”—this is not about protecting against underage drinking.  After all, in-state buyers can still get their wine delivered directly.  This is about wine middlemen, distributors trying to protect their monopoly.  The states claim the 21st Amendment, which ended prohibition, allows them to basically set up almost any system they want to regulate alcohol.  But that amendment was designed to ensure that dry states could remain dry, not so states could enact discriminatory practices designed to protect their own interests.  When one state tried to make the drinking ages different from men and women citing the same provision, the court said no.  Now it‘s time for the court to say no to this discrimination as well.

If Michigan and New York and the other says want to protect against underage drinking, then enact tougher policies for everyone, but they can‘t choose to make the rules looser for distributors in their own state, what‘s called the commerce clause does not permit it.  I want my wine.

Ken Starr is dean of the law school at Pepperdine University, a former judge, solicitor general and independent counsel who‘s working with a group of family-run California wineries who want these laws thrown out, and Mike Cox is Michigan‘s attorney general fighting to keep his state‘s law banning out of state deliveries on the books.  Gentlemen thanks very much for joining us.  Appreciate it.

UNIDENTIFIED MALE:  Thank you Dan...

ABRAMS:  Mr. Attorney General, let me start with you.  Since my position is along the lines of Professor Starr‘s...

UNIDENTIFIED MALE:  Sure.

ABRAMS:  ... what am I getting wrong on this?

MIKE COX, MICHIGAN ATTORNEY GENERAL:  Well you know, in December of 1933, the 21st Amendment passed repealing prohibition.  And the second part of that said that states could keep the power to control the distribution, the importation of intoxicating liquor.  As a result of that, states are allowed to protect their youth.

States are allowed to protect their revenue base.  You know, in my own state, my predecessor, former Attorney General Jennifer Granholm did a sting operation at the beginning of this case and found that 33 percent of the Internet web sites they went to, all you had to do was click in order to show that you were under 21.

ABRAMS:  But...

COX:  That‘s outrageous.

ABRAMS:  But in your state, if you‘re buying in state from Michigan on the Internet, you can buy it directly.  You‘re not protecting against that.

COX:  Well, actually, we are.  It‘s no different.  I have a couple of kids.  It‘s a lot easier for me to watch them when they‘re playing inside the house, as opposed to when they‘re down the street.

ABRAMS:  Oh come on...

COX:  And you know there are 27 vineyards in the state of Michigan.  There are 2,700 in the state of California.  It‘s an administrative nightmare to be able to watch them without the special license that we ask for, which, by the way, is only $300.

ABRAMS:  But Professor Starr, an administrative nightmare is not enough to overcome a constitutional problem, is it?

KENNETH STARR, PEPPERDINE UNIVERSITY LAW DEAN:  And the administrative nightmare that the very able attorney general is articulating really is theoretical, it‘s not real.  State after state, Dan, have moved in the direction of freedom and free choice for consumers and the ability of small wineries to direct ship.  And by the way, the wholesalers and distributors won‘t even handle the product of these small wineries.  They‘re just not big enough.

And the point is 26 states, including very recently, Virginia, North Carolina and South Carolina have moved to a system of regulated trade.  It‘s not as if all regulations are off—to the contrary.  There‘s a permit system that allows Attorney General Cox to implement and to achieve the kinds of policy objectives that he‘s talking about.  There‘s a more sensible way of doing it than just saying we‘re going to prohibit everybody from direct shipping into the state of Michigan.

ABRAMS:  But what about the argument that it‘s easier for him to monitor in-state wineries and in-state stores, than it is for him to monitor every store and every winery around the country?  I mean I think the problem with that is it not, is it‘s basically saying we refuse to accept the regulations of other states.

STARR:  Right.  Wineries are very intensively regulated by their own states, whether in California or Virginia or wherever the winery might be.  And in terms of books and records, those are now made available through audit procedures that one can do on the Internet.  The state of New Hampshire has been a great leader in making sure that the state gets revenue.  Michigan is depriving itself of revenue that it could be getting if it allowed California wineries to direct ship, and the sting operations that the attorney general refers to suggests that there is a problem.

But the problem is not with wineries.  The moms and pops and the families who own these wineries are very law abiding.  They use FedEx and UPS to make the deliveries that require adult signatures and the like.  So, this is the new age that we have before us in terms of information and technology, and this is essentially when it comes right down to it protectionist legislation.  But it‘s cruel protectionist legislation, because the distributors in Michigan won‘t even handle the product of these small wineries.  It‘s not economical for them to do so.

ABRAMS:  Mr. Attorney General, do you agree that it‘s discrimination at the least?  Do you agree that you‘re discriminating against wineries from out of state?

COX:  No, not at all.  It‘s a situation where there‘s a different factual basis.  We have vineyards within the state, which are treated slightly different than out-of-state ones, simply for rational administrative reasons.  And I thought it was interesting that Judge Starr mentioned Virginia.  Just last month, November of this year, the Virginia Tech student newspaper had an article about underage drinkers being able to order diabsence (ph), which isn‘t even legal in the Unites States over the Internet and getting it delivered.

We can‘t rely on UPS men and the FedEx guy or the mailman to police or to be the regulator.  If Judge Starr‘s position were to prevail, it would literally open the floodgates in terms of underage drinking in the state of Michigan.  In fact, the A.G. of Massachusetts, Tom Reilly, did another sting three months ago where four Internet distributors were found to be selling to minors in a very small survey.  You know, quite simply if—the state of Michigan has a right to be dry under the 21st Amendment.

ABRAMS:  Yes.

COX:  If the plain language of that amendment allows us to be dry or to protect certain—we can certainly...

ABRAMS:  Yes.

COX:  ... take steps to protect a certain class of individuals...

(CROSSTALK)

COX:  ... that being minors.

ABRAMS:  Yes, Professor Starr, it seems to me to say—it‘s something different to say we‘re going to be dry than it is to say we‘re going to treat certain out-of-state vineyards differently than our in-state people.

STARR:  Well the state of Michigan has admitted—the attorney general is not in this interview, but the state of Michigan admitted in the litigation that it did discriminate.  There‘s just an absolute ban.  You cannot as an out-of-state winery in fact qualify to send your product.  The attorney general says that you can.  And that‘s good news, but that‘s certainly not the way the case was litigated.

And if we can, the moms and pops be able to do business in Michigan, that‘s great.  We‘re not litigating for the sake of litigation.  With respect to the 21st Amendment, I‘m sure that the attorney general would agree that Michigan cannot in fact regulate in ways that would work gender discrimination, racial discrimination and say we do not want African American wineries...

ABRAMS:  Yes...

STARR:  ... to be able to ship their product.  It sweeps too broadly.

(CROSSTALK)

ABRAMS:  I‘ve got to wrap it up.  Final word Attorney General Cox.

COX:  Sure.  Dan, quite simply, the 21st Amendment, it‘s part of the deal to repeal prohibition allows states to do this.  And the plain language should triumph.  I think Judge Starr generally is in favor of the plain language of the Constitution triumphing, and that‘s all we‘re asking for.

ABRAMS:  Yes.  All right.  I‘ve got to wrap—I could talk about this topic for hours.  You know, this is one I‘m passionate about.  I love this topic.  All right, but I‘ve got to just move on very quickly.

Judge Starr, I just want to ask you one question.  You‘ve been quoted recently as having said that you effectively never should have led the investigation that resulted in President Clinton‘s impeachment.  The quote from The AP was there was a sense on the part of the country that my Lewinsky effort was an effort somehow to expand the Whitewater investigation when it was separate.  Is it accurate to say that you are now sorry that you led both investigations?

STARR:  No.  I think when I was in Santa Barbara I was articulating what I‘ve said any number of times.  The investigation had to be done.  But it would have been better had Attorney General Reno seen fit to appoint someone else to do it.  But it had to be done and we stand by the results of the investigation.

ABRAMS:  But are you sorry that you were the one who had to do both?

STARR:  I think it would have been better for the country if someone else had been chosen to do it.  But I was asked to do it, and I volunteered.  I‘m not blaming this on anyone.  But it was Attorney General Reno‘s decision that it should come to our investigation.  I‘ve said it before.  This is nothing new.

That the country would have been better served had the investigation in fact been carried out as it had to be.  And I think there‘s been a misunderstanding, a mischaracterization of what I have said.  I‘ve said the investigation had to be done.  But in terms of public confidence, it would have been better had there been attorney—independent counsel Roe or Doe.

ABRAMS:  All right.  Ken Starr, we hope you‘re going to come back, because I‘m going to keep following this wine story.  I want my wine.

(LAUGHTER)

(CROSSTALK)

ABRAMS:  Thanks—good to see you.  We appreciate it.  And Attorney General Cox is going to stick around for our next segment because coming up, one of the most notorious serial killers set to be released from prison until one of our viewers saw his face on our show, contacted the authorities.  Now Coral Eugene Watts will spend the rest of his life behind bars.

Attorney General Mike Cox is the man who brought Watts to justice.  He‘s the one who went public.  For the first time we‘ll hear from Watts himself.

Plus, some of you think I‘m being too hard on the flowery testimony coming from Scott Peterson‘s friends and families—your e-mails coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  I did not kill Helen Dutcher, and I don‘t care how many times you take me to court and try to convict me of this murder.  I never killed her.  I never seen her before in my life.  And that‘s one murder that I did not do.

(END VIDEO CLIP)

ABRAMS:  One murder I did not do.  He‘s never spoken publicly until today.  Well, Coral Eugene Watts, one of America‘s most notorious serial killers who police think killed more than Ted Bundy and John Wayne Gacy combined.  He‘s now going to be locked up forever.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  It is the sentence of this court that you serve life in prison without parole.

(END VIDEO CLIP)

ABRAMS:  A fair sentence most would agree for someone who has confessed to killing 13 women.  He‘s being suspected in maybe 80.  Set to go free in 2006 for good behavior.  Can you believe it?  There was never enough physical evidence to link him to any of the murders.  He reached a plea deal with prosecutors in Texas in the ‘80‘s, leading them to some of the bodies in exchange for immunity.

He was finishing out a shortened 60-year sentence for aggravated burglary.  Today Helen Dutcher‘s niece, the woman Watts was just sentenced to life for killing, took the opportunity to speak out, saying—quote—

“You‘ve taken away and butchered our loved ones.  You have made sure we are tortured every day.”

I was so outraged and it‘s such disbelief at Coral Eugene Watts‘ upcoming release.  Remember, he‘s possibly America‘s most prolific serial killer ever.  I devoted much of my show to a story back in January.  One viewer, Joseph Foy, recognized Watts as the murderer in a killing he witnessed in suburban Detroit back in 1979.

(BEGIN VIDEO CLIP)

JOSEPH FOY, SAW KILLER ON “THE ABRAMS REPORT”:  I was just channel surfing, ran across your program, had seen the same clip that I had seen prior, and immediately turned up the volume, and you guys were discussing how you needed tips in the Michigan cases.  And I didn‘t hesitate to call right away.

(END VIDEO CLIP)

ABRAMS:  That was Joseph Foy on our program.  The call was made to Michigan Attorney General Mike Cox.  Foy was the main and only witness for the prosecution.  Cox and his team gathered evidence, extradited Watts from Texas, put him on trial for something he had surprisingly never been on trial for before—murder.

Joining us now again Mike Cox, Michigan‘s attorney general.  Mr.  Attorney General, are you surprised to hear him say I‘m not guilty in this murder, suggesting, yes, I‘m guilty in some other murders, but not in this one?

COX:  No, not at all, Dan.  You know, that was a throwaway phrase.  The only times he‘s admitted murdering someone is when he got immunity for them.  So his prior confessions, they were safe confessions to make.  So I didn‘t expect him to confess at all today.

ABRAMS:  Let me play another piece of sound from Coral Eugene Watts today in court.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  If the family of Helen Dutcher want to hate me for killing their daughter—for killing their sister, it‘s fine with me.  Somebody has to take the blame for it.  They can hate me.  They can—anything they want to do.  But I did not kill her, and I hope someday that they find the person that really did kill her because I did not do it.

(END VIDEO CLIP)

ABRAMS:  I hope that they find the person who did it.  Let‘s be clear here, Mr. Attorney General.  This guy has confessed to some awful, brutal murders.

COX:  Right.

ABRAMS:  I mean I‘ve read the details of each and every one of them, and I think it‘s important that we not forget about the crimes that he‘s confessed to as well.  Why don‘t you summarize those for us?

COX:  Sure.  He confessed to over a period of 17 months attacking at least 17 different women, 12 of them who he killed.  Five managed to survive.  Those are just the folks he confessed to.  As you indicated before, at one time he apparently bragged to an Ann Arbor policeman from Michigan that he had killed over 80 women.  So, you know, brutal slayings, brutal assaults, and thankfully Mr. Foy happened to be watching you and I talking, and he came forward.  He did the right thing, as he had done the night of the murder, and this case got resurrected.  And thank you for what you did.

ABRAMS:  Once again, thank you.  I appreciate that.  Joe Foy, though, as we both agree, deserves a lot of the credit here.

COX:  Sure.

ABRAMS:  Willing to go face-to-face with this killer, testifying as the key witness in this case.  But your office deserves a lot of credit for going public.  Good to see you again, Attorney General Cox.

COX:  Thank you.

ABRAMS:  And I‘m sure we‘ll be in touch again very soon.

COX:  Well thank you, Dan.

ABRAMS:  Coming up, last night I said I think the military‘s policy on gays in the military doesn‘t make a whole lot of sense.  One of you disagrees and argues if it ain‘t broke don‘t fix it—your e-mails coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, in response to our segment about gay ex-service members suing to get back into the military, one of you claims gays in the military are no more harmful than sending Jennifer Lopez to entertain our troops.  Your e-mails are next.

(COMMERCIAL BREAK)

ABRAMS:  Now it‘s time for “Your Rebuttal”.  Scott Peterson‘s friends and relatives continue to testify on behalf of Peterson in the penalty phase of his trial.

Dave Hebert (ph) from Illinois.  “I can‘t believe you‘re criticizing the witnesses for the defense.  Isn‘t it possible those people just can‘t believe Scott Peterson‘s guilty?  They‘ve known him for a long time.  They‘re under oath and they tell what they know about him.”

Maybe so, Dave, but the lawyers should be preparing them to testify, telling them where to be sensitive, where to be careful and what not to say.

And last night, we told you about 12 servicemen and women who were discharged from the military for violating the don‘t ask/don‘t tell military.  Now a federal lawsuit challenging that policy and they‘re asking for reinstatement.  I said based on Supreme Court precedent, it‘s time for the military‘s don‘t ask/don‘t tell policy to go.

Some of you don‘t agree including Tom Cunnally.  “Gays are not welcome in the military.  An openly gay member would be a disaster to the order and morale of any unit and it would be a continued source of conflict.  So as the old saying goes, if it ain‘t broke don‘t fix it.”

Lisa in Pennsylvania has a different take.  “I would venture to guess that heterosexual relationship issues take up a heck of a lot more time of my husband‘s command time than gay relationship issues would.  The Army sends the Dallas Cowboy cheerleaders and Jennifer Lopez over to dance in little skimpy outfits for our sexually deprived husbands and that‘s OK.  But put a gay man in the same vicinity of our husbands and it‘s some sort of crime.”

Finally, Roz Mandelcorn writes about the Army fudging the truth about the circumstances surrounding NFL star Pat Tillman‘s death fighting in Afghanistan.  “If it was just the average Joe enlisted guy, the government would have said nothing except maybe the truth.” 

Your e-mails abramsreport@msnbc.com.  We go through them every day at the end of the show.

Coming up, your chance to name a new segment on our show and where would lawyers be if they weren‘t allowed to argue in court, let alone TV court shows?  If some judges in New Jersey get their way, many trials there could be argument-free.  That story in 60 seconds.

(COMMERCIAL BREAK)

ABRAMS:  Now time for our latest feature on the show, our “Legal Lites”—stories about America‘s dumbest criminals, greediest lawyers, and most ridiculous lawsuits.  And as I said Monday, while we love the segment, we‘re not happy with the name.  We‘re asking you to take part in a contest to come up with something better.  The winner gets a great package of MSNBC merchandise and of course credit on the air.  But before I give more contest details, here‘s today‘s “Legal Lite”.  It starts with a question.

What do lawyers like to do more than anything except possibly collect a fee?  They like to argue.  They probably wouldn‘t be lawyers in the first place.  If they didn‘t like to argue, which is why (UNINTELLIGIBLE) puzzling that some New Jersey lawyers and judges are getting ready to argue about arguing, specifically putting an end to oral arguments and civil cases.  The judges say listening to lawyers argue in person is a waste of their time.  The lawyers argue that removing oral arguments from court could just create more arguing about the arguments that they put down in their papers.  I could argue either side of this one.

Back to the contest—to enter, go to our Web site, abramsreport.msnbc.com.  All the rules are there, so is the entry form.  If you come up with the name for the new segment, you get the bag of goodies and we‘ll find the weird stories.

That does it for us tonight.  See you back here from Redwood City tomorrow after the final defense witness takes the stand in the penalty phase, will be Scott Peterson‘s mother.

Coming up next, “HARDBALL” with Chris Matthews.  Have a great night. 

See you tomorrow.

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

END   

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