updated 1/18/2005 2:59:27 PM ET 2005-01-18T19:59:27

Guest: Jeffrey Leving, Bruce Boyer, Susan Pniewski, Michael Marcavage, Matthew Mangino, C. Scott Shields, John Yoo, Sam Bagenstock, Ronald Richards

DAN ABRAMS, HOST:  Coming up, a judge rules that tomorrow morning a 3-year-old boy will be taken from the only parents he‘s ever really known.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  His birth mother gave him up for adoption when he was born.  He‘s lived with his adopted parents ever since.  But now his biological mother wants him back and it looks like tomorrow morning she‘ll get him.

Plus, he was quoting the Bible at a gay pride rally, sometimes yelling about the immorality of homosexuality.  He was arrested.  Now facing up to 47 years.  His lawyers say it‘s the first time preaching the Bible has ever been declared a hate crime.

And...

UNIDENTIFIED MALE:  We are one of only six countries in the world that allows abortion on demand at any time prior to viability.  Should we change that because other countries feel differently?

ABRAMS:  A battle between two U.S. Supreme Court justices caught on tape.

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  Before we get to all those stories, again, we want to continue for just a moment to tell you about this breaking news that Charles Graner, the reputed ringleader in the Abu Ghraib prison scandal accused of abusing Iraqi detainees has been found guilty.  The jury took less than five hours to reach a verdict.  He was tried on charges arising—five charges, in fact, and now facing up to 17 years behind bars.

A jury of four Army officers, six senior enlisted men rejected the defense that Graner and others had just been following orders from intelligence agents at Abu Ghraib when they—you know, we‘ve seen the pictures—piled up the detainees, forced them to masturbate, et cetera. 

Each count, remember, had required that at least seven of the 10 -- quote -

·         “jurors” agree for a conviction.  We‘re going to have more on this story later in the program.  Charles Graner found guilty.

First up on the docket tonight, little Evan Scott.  After living the first three and a half years of his life with his adoptive parents, the only parents he knows, tomorrow morning Evan will be heading halfway across the country to restart his life with his biological mother.

NBC‘s Kevin Tibbles has the story.

(BEGIN VIDEOTAPE)

KEVIN TIBBLES, NBC NEWS CORRESPONDENT (voice-over):  The images are indelible.

(SCREAMS)

TIBBLES:  The sounds heartbreaking.

(SCREAMS)

TIBBLES:  In 1993 after a two-year legal struggle, a judge ordered Roberta and Jan DeBoer to turn over custody of baby Jessica, the daughter they desperately hoped to adopt.  Now a similar scene is due to play out in Jacksonville, Florida.  Dawn and Gene Scott were present at the birth of Evan, the baby boy they planned to adopt in May 2001.

Evan‘s birth mom, Amanda Hopkins, handpicked the Scotts, but one month before the adoption was finalized, Hopkins changed her mind when she found out Evan‘s biological father was seeking custody of the boy.  Now a state court has told the Scotts they have until Saturday to turn Evan over to his biological mother.

UNIDENTIFIED FEMALE:  His court-appointed attorneys have failed him. 

The system has failed him.  And the state of Florida has failed him.

TIBBLES:  Bruce Boyer is director of the child law clinic at Loyola University.

UNIDENTIFIED MALE:  What I find really disturbing about the case is that it has gone on for as long as it has.  If you take a child out of a home after three months or five months or six months, it‘s not going to be easy, but it doesn‘t present the same deeply disturbing problems that you have when the child is now almost 4 years old.

TIBBLES:  And Boyer should know.  He was involved in another high-profile adoption case when baby Richard was eventually returned to his biological father back in 1995.  He was forced to leave the only home he‘d known in his four short years.

UNIDENTIFIED MALE:  It was similar in the sense that you had a young boy of almost the same age who was asked to go through a very difficult transition.

UNIDENTIFIED MALE:  It‘s not over until it‘s over.  We still have hope.

(END VIDEOTAPE)

ABRAMS:  “My Take”—now, I generally tend to side with biological parents more than most people do in these types of cases, but in this situation the mom agreed to give her baby up for adoption.  The adopted parents attempted to reach out to the biological father to no avail.  In fact, dad didn‘t seem to care so much until his dad said you know you should really get involved.

And now a dad who beat his wife up—beat her up so badly that she had to go to the hospital—that is when she found out she was pregnant, wants to suddenly come in and be the white knight.  These biological parents I think gave up their right to little Evan years ago.  Mommy and daddy that Evan knows are Dawn and Gene Scott.  I think that shouldn‘t change.

Joining me now, Bruce Boyer, who we saw in Kevin Tibbles package, Jeffrey Leving, family law attorney and father‘s rights advocate.  Jeffrey wrote “Father‘s Rights: Hard-Hitting and Fair Advice for Every Father Involved in a Custody Dispute”, and on the phone from Tallahassee, Florida is Susan Pniewski, the attorney for Dawn and Gene Scott.  Thank you all for coming on the program.  Appreciate it.

All right, Jeffrey Leving, this is a hard argument for dad, biological mom to make.  And mom gives up the child here.  The only reason they found out that she was even pregnant is because dad had beaten her up so badly she had to go to the hospital.  Dad doesn‘t have a particularly strong argument here.

JEFFREY LEVING, FATHER‘S RIGHTS ADVOCATE:  I disagree.  I believe the biological father has a very strong legal position.  He never consented to the adoption.  The Florida court correctly ruled in returning the child to the biological mother.  You can‘t just move a child from one state to another for an adoption without the consent of the biological father.

This father, it has been ruled, that this dad has not abandoned the child.  He‘s not consented to the adoption, and he‘s been visiting the child and he‘s keeping in contact.  He‘s a good dad.  You can‘t just take children away...

ABRAMS:  Yes, but...

LEVING:  ... from biological fathers because of their gender or because of an alleged domestic violence issue.

ABRAMS:  But Bruce Boyer, you don‘t get forever, right?  I mean you don‘t just get to say oh you know what?  Whenever I want to come in, I‘m just going to come in and at that point I‘m the biological father.  I can come in whenever I want and say the child is mine.

BRUCE BOYER, LOYALA UNIV. CHILD LAW CLINIC:  I think that‘s right.  I understand that the father in this case came in pretty quickly within a couple of months and what I find most disturbing about this case is that it took so long to come to a resolution.  You have an adoption petition that was denied almost three years ago and that‘s how long these parties have all been battling over custody.  It is hard to say who‘s at fault, but that‘s the thing that‘s most disturbing to me.

ABRAMS:  But they have to make a decision here, right?  I mean all right, so the system failed.  We all agree on that.  The system should have done a better job.  OK, we are where we are right now, and that is at a point where almost four years later there is a child out there who is going to be taken away from the only parents that he ever knew.  I assume that you‘re troubled by that.

BOYER:  I don‘t think you can help but be troubled by it.  You have a child who has been in a home for so long.  It‘s not going to be an easy transition no matter what happens.  I think there‘s reason to hope that it won‘t be as difficult as it might be.  He‘s had some contact with both parents, which separates him from some of the children that we‘ve seen in the media before.  But I don‘t think you can help but be disturbed by what this boy is going to face.

ABRAMS:  Ms. Pniewski is the attorney for the adoptive parents, Dawn and Gene Scott.  So how did you not win this one in court?  Where did the judge decide against you on this one?

SUSAN PNIEWSKI, DAWN & GENE SCOTT‘S ATTORNEY (via phone):  Well, this has been a long and traumatic case for all the parties involved.  And I think what we‘re not getting across here is that this case is a combination of three separate cases.  The first case was the adoption case where a petition was filed and that was dismissed in early 2002.  The statute at that point in time when that was filed was that the father—the biological father would have to meet five different requirements in order to be allowed to assert his rights.

He didn‘t meet any of those requirements, but he was still permitted to assert his rights at the end of that trial.  So at that point he was—he tried to file for paternity.  The case subsequently went to the dependency court, and I might mention that at the closure of the adoption case, when it was dismissed, the court at that time found that it was best for the child to be placed with the Scotts and remain in this placement with the Scotts.

ABRAMS:  So, if you can summarize, though—I mean apart from going through each and every proceeding...

PNIEWSKI:  Sure.

ABRAMS:  ... bottom line is, why are we where we are today, which is that tomorrow that child is going to be leaving your clients it seems and going to an entirely new set of parents.

PNIEWSKI:  Well, the adoption court found that he was best served being in this placement with the Scotts.  The dependency court subsequently a year and a half later said we‘re going to leave him where he is because he‘s best there.  Now, it‘s in the paternity court and the paternity court applying a different standard, which is a standard of detriment, has found that the biological father and biological mother are going to have priority rights over the child and that‘s what the judge has ruled on.

ABRAMS:  Yes.  All right, here‘s what Dawn Scott said about the bond that she has developed with this child.

(BEGIN VIDEO CLIP)

DAWN SCOTT, EVAN‘S ADOPTIVE MOTHER:  This child is nearly 4 years old.  He‘s bonded into our family and I don‘t believe the Florida courts have ever one time looked at his best interest.

Our judicial system did not protect him.  He is being treated like a piece of property.

UNIDENTIFIED MALE:  He is a human being.

D. SCOTT:  He‘s a human being.  He has rights.

(END VIDEO CLIP)

ABRAMS:  Jeffrey Leving, I mean you‘re not troubled by this, I mean the idea that...

LEVING:  I‘m...

ABRAMS:  Go ahead.

LEVING:  I‘m very troubled by this and let‘s put aside all the legal mumbo jumbo and let‘s look at the reality.  The reality is in our society fathers are viewed as secondary parents or non-parents.  If the gender roles were reversed here, I doubt if any adopting parents would accept...

ABRAMS:  It‘s not exactly like...

LEVING:  ... without the consent from...

ABRAMS:  ... but wait a second.  This guy didn‘t—he wasn‘t purely a victim here.  I mean he brought this upon himself to a certain degree.  Beat the crap out of...

(CROSSTALK)

ABRAMS:  He beat the crap out of...

LEVING:  This biological...

ABRAMS:  ... right?

LEVING:  ... father is—this biological father is the victim.  This is his son and he‘s been fighting aggressively to maintain...

ABRAMS:  Only after grandpa came in and said I‘d like to know if I‘m grandpa.  It didn‘t seem dad cared a whole lot until that happened.

LEVING:  He—this dad jumped in immediately and if you look at the court records, the information I have from the court records is that this biological father has been denied visitation by the adopting parents pursuant to the information I have concerning...

ABRAMS:  He‘s been able...

LEVING:  ... court records.

ABRAMS:  I mean look, whether they have agreed or not agreed on the amount of visitation, it‘s not as if the—look, he was allowed.  He set up a whole hotel room, which he tried to make sort of homelike, et cetera.  I‘m just troubled by the fact that it happened.  I just think it‘s too little, too late.  As I say, I generally do side with biological parents in cases like this, not in this one.  But we shall see what the outcome is because tomorrow—tomorrow‘s going to be a hard day.  I mean—Jeffrey Leving, Bruce Boyer, Susan Pniewski, thanks a lot for coming on the program.

UNIDENTIFIED MALE:  Thank you.

ABRAMS:  Appreciate it.

Coming up, a preacher now facing up to 47 years for inciting hate at an anti gay rally.  He says he was just expressing his views on the dangers of homosexuality.  The preacher joins me next.

And the first graphic details from Michael Jackson‘s accuser—exactly what he said happened inside Jackson‘s bedroom.

And two U.S. Supreme Court justices square off for a debate on live TV.  The question:  How much should foreign court opinions mean to the U.S.?

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, a preacher says he‘s facing 47 years just for using the Bible to talk about what he thinks is wrong with homosexuality.  He joins us next.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  We‘re back.  He was holding a megaphone at a Philadelphia gay pride parade in October shouting things like “homosexuality is a sin.  Christ can set you free.”  No blows exchanged, but Michael Marcavage, founder of Repent America, an organization dedicated, as he puts it, to serving the Lord and reaching the lost and three other members of the group were charged criminally, serious charges.

The charges include ethnic intimidation, a hate crime punishable by up to 10 years in prison and a $25,000 fine.  Inciting a riot, punishable up to seven years and $15,000 fine.  Criminal conspiracy, same punishment as the most serious crime attempted in this case, ethnic intimidation.  Now, the Philadelphia four face up to a total based on the charges of up to 47 years in prison.

It just so happens a group of documentary filmmakers working on a different project shot this footage.  Do we have it?  Marcavage—there it is—attorney offered it into evidence at the preliminary hearing.  Prosecution issued a statement saying—quote—“this case is about conduct, not content of speech.”

“My Take”—it seems pretty clear that this guy was probably overcharged.  Joining us now, Michael Marcavage, the founder of Repent America, C. Scott Shields, Michael Marcavage‘s criminal lawyer, and Matthew Mangino, Lawrence County Pennsylvania district attorney.

All right, Mr. Marcavage, let me start with you.  Tell me what happened in—from your point of view.

MICHAEL MARCAVAGE, FOUNDER, REPENT AMERICA:  Well, every year in Philadelphia at OutFest, it‘s a homosexual gathering in the city where people celebrate homosexuality.  And our group, Repent America, was there to present the gospel of Jesus Christ to let them know as you stated earlier that homosexuality is sin.  Christ can set you free and that was the message we were there to deliver.  We were there merely about 15 minutes in which the police arrested 11 of us and we were later charged after spending 21 hours in jail with three felonies and five misdemeanors.

ABRAMS:  But it is clear, right, that you had gone there to stir up some trouble as well.  Is that fair to say?

MARCAVAGE:  Well we went there to confront the sin and also there to love the sinner and that means we wanted to extend to them that there is hope and freedom from homosexuality.

ABRAMS:  All right.  So Mr. Mangino, it‘s pretty clear that they went to stir up trouble.  I mean they went there to confront them.  They went there to yell at them.  They went there to scream at them.  Maybe they even went there to, you know, to obstruct them in terms of where they were walking, et cetera, but these charge, I mean, we‘re talking about inciting a riot here.  We‘re talking about ethnic intimidation charges, pretty hefty charges.

MATTHEW MANGINO, LAWRENCE COUNTY PA DISTRICT ATTORNEY:  Well, they are and they‘re the appropriate charges.  You know, ethnic intimidation is a hate crime.  Sexual orientation is a protected class under that specific statute, and the police at that time had to make a judgment whether or not they were there to incite a riot, to confront, to have a physical confrontation with these people and the police had to take whatever action was necessary to ensure that...

ABRAMS:  That‘s fine.  I‘m not blaming the police.  I‘m blaming the prosecutors.  I‘m saying the prosecutors went way too far on the charges here.

MANGINO:  No, these statutes apply.  You know, riot and ethnic intimidation, if you act in a hateful manner toward a specific group that‘s protected, as they did in this particular instance and incited a confrontation, which could have precipitated a riot.  I mean we‘re talking about a mass crowd here...

ABRAMS:  Yes.

MANGINO:  ... a confrontation.  And these are the appropriate charges. 

The prosecutors have filed the appropriate charges in this case.

ABRAMS:  Mr. Shields, it seems to me that there was a lot of could haves and might haves and you know, who knows what would have happened as a result of as part of these charges.

C. SCOTT SHIELDS, ATTORNEY FOR MICHAEL MARCAVAGE:  But is that really the issue?  The fact of the matter is before Michael Marcavage and his group got to this event, the Philadelphia police had already planned the response of the outside organizers.  They organized the Pink Angels.  They had very large pink Styrofoam boards.  They were blowing very obnoxious whistles to block the written messages on the banners and to drown out the voices of the Repent America members.

In fact, when they got to the event, the OutFest people, the pink—these Pink Angels, were arm-in-arm to block their entry.  The police stood by and did nothing.  And it‘s sort of ironic that my client gets charged with obstructing the highway when, in fact, when they got to the event, that‘s exactly what happened.

The prosecutors here are completely out of control.  Lynne Abraham, who is up for election this year, has clearly demonstrated that she doesn‘t care about what the law is and how the law applies to these particular people.  They are Christians.  They were there in the marketplace of ideas doing their thing.  They didn‘t do anything to incite a riot.  They weren‘t being disorderly.

They did nothing.  If anybody looks at that tape and they can see it at www.repentamerica.com, they‘re going to see that it was the Pink Angels that was an out of control mob.

ABRAMS:  See, but the thing is, and very quickly, Mr. Mangino, I can see why they probably got charged with the disorderly charges.  Those are minor charges.  It happens all the time in events like this, but it seems the prosecutors took it to the next level and I wonder whether—and I fear—let me just say I fear that that might have been based on what they were saying as opposed to how they were doing it.

MANGINO:  Well, Dan, this is not a free speech case.  This is a case

that deals with violating criminal statutes.  It‘s a judgment called by the

prosecutors.  You know, they made this charge.  There‘s been a preliminary

hearing.  A municipal judge has had an opportunity to listen to the

evidence.  He dismissed cases against seven of them.  He thought that seven

·         four cases should go on to trial and you know, there‘s recourse here. 

You have the right to review.  You have a right to a jury trial.  You know, the idea...

ABRAMS:  Yes.

MANGINO:  ... that they face 47 years in prison is certainly not what‘s going to happen under Pennsylvania law...

ABRAMS:  No, it won‘t happen.  Let me take a quick break here.  Look, they are not going to face 47 years, but they‘re facing serious time for, you know, it seems to me—and again, this comes to a question of proportionality, relatively minor conduct.  Again, it‘s the conduct they‘re allowed to say whatever they want.  All right.  Have everyone stick around.

Coming up, we‘ll talk about this some more.  I want to ask Mr.

Marcavage a couple of more questions.

Also ahead, graphic new details about just what the boy accusing Michael Jackson says he did to (UNINTELLIGIBLE) his little brother.

And something you almost never see, two U.S. Supreme Court justices square off in front of cameras.  The debate—should the court take its queue from foreign courts?  Coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  He tries to hide behind the First Amendment and his right to free speech when really what he‘s all about is trying to provoke people into violence.

(END VIDEO CLIP)

ABRAMS:  That‘s Philadelphia Assistant District Attorney Charles Ehrlich, who‘s talking about this case of Repent America.  Michael Marcavage, who went out and were protesting in front of gay rights groups to tell them that they thought essentially being gay was bad.  They have gotten—he in particular has gotten himself into a lot of trouble with some others.  Now facing up to 47 years behind bars.

What do you make of that Mr. Marcavage?  That he‘s saying that, look, you went there not just to make a point, but you went there to—and not just to cause trouble, but to provoke people into violence.

MARCAVAGE:  Well the reality is, is there was no violence and...

ABRAMS:  But were you going there to provoke people into violence?

MARCAVAGE:  Absolutely not.  I can‘t control the behavior of other people.  Obviously we come there with a message that‘s directly from scripture that homosexuality is sin.  If it provoked someone to anger and frustration, then they have to deal with it...

ABRAMS:  But it‘s not just what you are saying, though, right?  I mean what they would say is it‘s not just what you are saying.  It‘s where you‘re saying it.  It‘s how you‘re saying it, and it‘s what your goal is.

MARCAVAGE:  Well we‘re saying it in the public streets of Philadelphia, an eight-block area that OutFest organizers had in the city open to the public.  There was no permit other than for the stands and the goods they were selling and we were there to be in the public streets to proclaim the gospel.

ABRAMS:  Mr. Mangino, what about that?

MANGINO:  Well, you know, the statute in Pennsylvania is clear.  Two people who participate in—two or more people who participate in disorderly conduct with the intent to commit a crime, here ethnic intimidation, are you know, liable under the riot statute...

ABRAMS:  What does it mean intimidation?  What does it mean, because I would think that any time two people go and start screaming at other people, you could argue that‘s intimidation.  Oh I felt intimidated.  They were yelling at me.

MANGINO:  Well you‘ve got to be in a protected class, though.  You have to be a minority.  You have to be—it has to be based on your sexual orientation...

ABRAMS:  Race, color, religion, national origin...

MANGINO:  Right.

ABRAMS:  ... ancestry, mental or physical disability...

MANGINO:  Right.

ABRAMS:  ... sexual orientation.

MANGINO:  And there‘s no question that these people went there with the intent to take on this group because of their sexual orientation...

ABRAMS:  But still...

MANGINO:  They acted in a disorderly manner.

ABRAMS:  But they‘re allowed to do that.  But they‘re allowed to do that.  They‘re allowed to go and say I am opposed to you because of your sexual orientation.

MANGINO:  Not if they are going to act in a disorderly manner.  Not if they‘re going to act disorderly in a public place and possibly incite a riot.  Those are the judgments that the police have to make on the scene.  You know, not all speech is protected.  You know, Oliver Wendell Holmes said more than 100 years ago you can‘t yell fire in a crowded theater.

ABRAMS:  Falsely...

MANGINO:  Not all speech is protected.

ABRAMS:  Falsely yell—all right, Mr. Shields, go ahead.  You want to get the final word on this.  Go ahead.

SHIELDS:  Well yes.  I mean Justice Douglas (ph) said that it has to -

·         the speech has to present a clear and present danger that rises—that creates a serious substantive evil, which rises above annoyance, alarm, or unrest.  And clearly that is not the case here.  My clients weren‘t doing anything wrong.

They‘re not going to go preach the gospel and say homosexuality is sin at a Catholic Church.  It stands to reason they‘re going to go to a gay festival.  And in fact, what happened here is this was a public event on the public streets.

ABRAMS:  Yes.

SHIELDS:  They were told they could go wherever they wanted and it was publicly funded.

ABRAMS:  And the reason—I got to tell you—the reason that I‘ve become convinced by Mr. Shields‘ legal position is seeing the videotape I think also helps their position as well.  We invited the Philadelphia district attorney on the program.  They declined.  Mr. Marcavage, Mr.  Shields, Mr. Mangino, thanks a lot for coming on the program.  Appreciate it.

UNIDENTIFIED MALE:  Thank you.

ABRAMS:  New graphic details from Michael Jackson‘s accuser from his grand jury testimony.  He says he thought Jackson was the coolest.

You don‘t see this very often.  Two U.S. Supreme Court justices going at it on camera, live television.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, they argue in private all the time, but we never hear it.  Now two U.S. Supreme Court justices are taking their debate public.  We‘ve got the tape.  First, the headlines.

(NEWS BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  I‘m not preventing you from reading these cases...

(CROSSTALK)

JUSTICE ANTONIN SCALIA, U.S. SUPREME COURT:  I mean just indulge your curiosity.

(CROSSTALK)

SCALIA:  Just don‘t put in it your opinions.

(END VIDEO CLIP)

ABRAMS:  Supreme Court Justice Antonin Scalia during a rare public debate.  Call it Supreme Court smack down, if you will, with fellow Justice Stephen Breyer.  The two legal heavyweights wrestled at Washington‘s American University on whether the high court should ever let foreign courts impact their rulings on American law and the Constitution.  The more conservative Scalia says no.  The more liberal Breyer says yes.

(BEGIN VIDEO CLIP)

SCALIA:  We don‘t have the same moral and legal framework as the rest of the world and never had.  If you told the framers of the Constitution that what we‘re after is to, you know, to do something that will be just like Europe, they would have been appalled.

UNIDENTIFIED MALE:  What I see in doing this is what I‘d call opening your eyes.  Opening your eyes to things that are going on elsewhere.  Use it for what it‘s worth.

(END VIDEO CLIP)

ABRAMS:  “My Take”—what is Justice Scalia so afraid of?  That our judges are going to suddenly base all their decisions on other countries ruling?  Come on.  So the U.S. Supreme Court has occasionally mentioned in passing what other courts have done on some difficult issues.  So what?  This comes out to this ridiculous legislation proposed in Congress that would prevent judges from citing foreign law.

I would expect this sort of paranoia from smaller countries worried about U.S. influence.  We should be more confident than that.  My guests, John Yoo is a law professor at the University of California, Berkley, a former deputy assistant attorney general and former clerk to Supreme Court Justice Clarence Thomas.  And Sam Bagenstock is a professor of Constitutional law at Washington University, a former attorney with a Justice department Civil Rights Division, former clerk to Ruth Bader Ginsburg.

All right, Professor Yoo, what am I getting wrong here?  What is the big deal?  What is Justice Scalia and some members of Congress so afraid of?

JOHN YOO, FORMER SUPREME COURT CLERK:  Nobody‘s got a problem if the Supreme Court wants to use foreign decisions as a fancy kind of ornamentation that makes their paintings look better.  Kind of like the way in the Middle Ages people used to draw funny little illuminations within the letters.  That would be fine.  But if it actually made a difference if what foreign courts actually determined how the Supreme Court actually thought about an issue, I think that is a problem.  One, these foreign countries did not write the Constitution...

ABRAMS:  So they can‘t even have—meaning you don‘t even want them to think about how other countries have dealt with difficult moral/legal issues, for example?

YOO:  Right, because they didn‘t right the Constitution.  They are not part of our political community now.  And three, it is not clear to me that the United States ought to emulate the governmental experiments of other countries, especially Europe where most of these decisions are coming from.  Europe has been given, if you look at the last 100 years, to wild swings in the way their governments are organized, many of which I don‘t think we ought to copy.  You know, the Europeans have been through monarchy, socialism, communism...

(CROSSTALK)

YOO:  ... and fascism all in the last 100 years.  Should we be copying them when they go through all those experiments, too?

ABRAMS:  Professor Baganstott, is anyone really talking about copying them?

SAM BAGENSTOCK, WASHINGTON UNIV. LAW PROFESSOR:  No, of course not.  Justice Scalia‘s position on this, I think, is accurately described as paranoid and radical.  It‘s his position that in considering how to apply the very general terms of the Constitution, no unreasonable searches and seizures, no cruel and unusual punishments, no denial of liberty without due process of law, that American judges simply cannot consider the experience of other free, democratic countries that have addressed similar problems.  That doesn‘t make any sense.

ABRAMS:  Yes.

BAGENSTOCK:  If you take an example of an issue that Professor Yoo certainly knows a lot more about than I do, which is the way a democratic and free society ought to respond to the threat of terrorism and particularly the question of torture and whether torture should be used and if so when and under what constraint.  There are—there was five or six years ago a decision by the Israeli Supreme Court that very thoughtfully considered the question of how a democratic society can address the problem of terrorism, can defend itself against terrorism while preserving liberty and whether or not torture ought to apply.

Now, you can agree or disagree with the decision that the Israeli Supreme Court reached in that case.  You can say that that country‘s situation is very different from ours.  You can say that they...

(CROSSTALK)

BAGENSTOCK:  ... had an experiment that didn‘t work out.

ABRAMS:  I agree.

BAGENSTOCK:  But...

ABRAMS:  I agree.

BAGENSTOCK:  ... I think...

ABRAMS:  Let me play this...

BAGENSTOCK:  ... but Justice Scalia‘s position is we don‘t have that argument at all.

ABRAMS:  Yes and that‘s right.  Let me play another piece of sound from Justice Scalia talking about a similar issue.

(BEGIN VIDEO CLIP)

SCALIA:  What does the opinion of a wise Zimbabwe judge or a wise member of the House of Lords law committee, what does that have to do with what Americans believe?  Unless you really think it‘s been given to you to make this moral judgment, a very difficult moral judgment.

(END VIDEO CLIP)

ABRAMS:  But Professor Yoo, what about the example that Professor Bagenstock mentions, which is you know, the Israelis have had to deal with terrorism for years and years, and they‘ve had to try and balance how to go about appreciating human rights while also trying to fight terrorism at the same time.  So we want to say, you know what, we‘re not going to use their experience on this because they have a different Constitution.  We‘re not even—we shouldn‘t read it.  We shouldn‘t look at it.  We shouldn‘t cite it.

YOO:  Well I think one important thing to keep is mind that Justice Scalia is making a more subtle point, which is that if you start looking at these foreign decisions, it just becomes an avenue for judicial discretion, judicial policy making.  If I was advising a senator in Congress or we were advising the president or the attorney general or someone on what to do as a matter of policy, sure, I‘d have no objection.  Go ahead look at European.  Look at Israeli.  Look at African decisions for a sense of what other countries have tried.

The problem is that when judges who are supposed to be interpreting the Constitution, they are not supposed to be making policy, they are supposed to be reading the words of the Constitution, why is it that what foreign judges or foreign countries think is reasonable/unreasonable have to do with how we interpret our Fourth Amendment, which uses the phrase reasonable/unreasonable...

ABRAMS:  Because they face similar conundrums that our judges have faced.  And no one is saying because they did X, we have to do Y.  What they are saying is they faced a similar situation, here‘s how they dealt with it.  Let me let you listen to what Justice Breyer had to say because I agree with him on this one.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  This is not a major thing.  It‘s not some kind of determinative thing in dozen of cases of Constitutional law.  It‘s simply from time to time relevant.

(END VIDEO CLIP)

ABRAMS:  All right.  Professor Yoo, go ahead, respond.

YOO:  First of all, why is it relevant?  OK, so the European court on human rights or Israeli Supreme Court are interpreting their constitutions and their treaties as to what the words in those documents mean.  Our Supreme Court is supposed to be interpreting our Constitution based on what the people who wrote it meant or even if you think the people today should determine what the Constitution meant, what Americans today think those words means.  But why should it be the case that we care what Europeans think those words mean, what those concepts are?  They are making very different choices.  They have different situations, but they have different legal documents, different constitutions that they‘re interpreting...

ABRAMS:  All—and all they‘re using it for is guidance.  And I just don‘t know what everyone is so paranoid about on this topic.  But fascinating and great to see the justices out there duking it out.  Professor Yoo, Professor Bagenstock, thanks a lot for coming on the program.  Appreciate it.

YOO:  Thank you.

ABRAMS:  Up next, grand jury testimony supposed to be secret, turning out to be anything but in the Michael Jackson case.  More lurid descriptions from the boy accusing Jackson of molestation.  He is now saying exactly or at least we‘re learning exactly what that boy is saying happened to him.

And later, just because someone doesn‘t get the maximum sentence doesn‘t mean they got off.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  Jury selection in Michael Jackson‘s case two weeks away.  Now for the first time we get a glimpse of what has already been said from a witness stand.  ABC News obtained transcripts of testimony from the secret grand jury that indicted Jackson.  His accuser details instances of drinking and sexual abuse.  Let me warn you, this is graphic.

Quote—Accuser:  “We were laying on the bed and he (Jackson) told me that men have to masturbate.  He told me that he wanted to teach me to masturbate.  So we were laying in bed and then he started rubbing me.  He puts his hand down my pants.  He started rubbing me, my private area.  He was masturbating me.”

Prosecutor:  Did you look over to see his eyes at any time?

Yes.

What did you see?

His eyes were like squinching really tight.

The state later addressed head on defense accusations that the child fabricated the allegations.  They said—quote—“How does the kid make something like this up?  I mean nobody is that good of an actor, for pete‘s sake.  This is real.  This is exactly what happened.  We have an incredibly powerful man who is a pedophile, a 44-year-old man who molested a 13-year-old boy.  A man of unimaginable wealth and power.  Those sexual desires for a teenager boy is his downfall.”

But the defense team is fighting back, saying—quote—in this statement—“The witnesses who testified before the grand jury were never subjected to cross-examination or impeachment by the defense.  By law, no judge or defense lawyer was allowed to be present in the grand jury room.  Furthermore, the defense had no opportunity to call its own witnesses to refute or criticize this one-sided proceeding.”

Show you more of the grand jury testimony in a moment.  But first, I want to warn you again the details are graphic.  Ron Richards is an NBC News analyst and criminal defense attorney, who knows Tom Mesereau, the defense attorney well.

All right, so Ron, you‘re preparing for this case.  You‘re the defense attorney.  You hear these very specific, lurid allegations.  You start to get nervous if you‘re Jackson‘s attorney?

RONALD RICHARDS, CRIMINAL DEFENSE ATTORNEY:  Not at all, Dan, because remember the prosecutor controls everything that goes on in the grand jury room...

ABRAMS:  He doesn‘t control what the boy said.  I mean the boy said X, Y, and Z and I understand he‘ll be cross-examined later on it, but it‘s specific, it‘s lurid.  It‘s, you know, he is talking about different times of X, Y, and Z happening.

RICHARDS:  But, Dan, the defense is going to show both boys were caught masturbating on the property.  That‘s why their fingerprints were on the porno magazines and that‘s why they had to be locked up.  These kids were real problems on the property...

ABRAMS:  Well let‘s even assume that‘s true.

RICHARDS:  ... and...

ABRAMS:  Let‘s even assume, right, what you just said is true.  So what?  How does that go to whether the allegations he‘s making are true.

RICHARDS:  Well, remember, these kids in front of Geragos‘ investigator, on TV and to Child Protective Services, all denied anything ever happened to them.  So they‘re going to attack their credibility with their prior inconsistent statements.

ABRAMS:  Yes.  Let me read you another one.  This one was very disturbing.

Prosecutor:  Did you ever mention to Mr. Jackson that it probably wasn‘t a good idea for you to be drinking?

Yes.

Tell us about it.

Well, it wasn‘t really a good idea for me drinking because I only had one kidney.  Remember he was sick.  I only have one kidney and so it harms my kidney for I drink that stuff.  But he would say it‘s OK and he would just keep on telling me to drink.

Serious allegation.

RICHARDS:  Well in response to that, though, Michael Jackson is really a modern day Mother Teresa.  You remember, he paid all the medical fees for Ryan, the child with Aids.  He also paid for that child in Orange County that was severely burned.  I‘m going to—I believe that the defense is going to have some outstanding character witnesses to show that Michael Jackson is very cognizant of what alcohol could do to a kid with one kidney and he‘s very sympathetic toward medical issues.

ABRAMS:  So—but they can also argue he‘s also a modern day, you know, pervert, the prosecutors are going to argue.  I mean let me give you one more of the—this is number four here.

Did you—and again, this is very graphic.  Did you ever talk to Mr.

Jackson about those occasions where he masturbated you?

No.

Did he say anything to you when he was masturbating you?

No.

OK, I‘m going to ask you a very difficult question.  Do you at any time touch Mr. Jackson?

No, he wanted me to, but I didn‘t.  I said no.  I pulled my hand away from him.

You know, I mean look, the problem that the defense might have, and what do you think about this, Ron, is the idea if the boy is going to make it up, right, why doesn‘t he make up a more significant story?  Why doesn‘t he say Michael Jackson, you know, touched me with his mouth or Michael Jackson did X, Y, or Z to me, which was much worse than what he laying out here.

RICHARDS:  Well, that could be a good point, but you have to realize this mother scripts these kids very well.  I mean this child, the one that you are referring to, this alleged victim, he was caught stealing from J.C.  Penney.  This alleged victim said—quote—“in the psychological report that seeing his mother be molested by the security guards was worse than his own cancer.”  I mean, these are very precocious kids, brats more like it.

ABRAMS:  Yes.  Yes.  Well...

RICHARDS:  And I think that you‘re going to find that when they—when the defense shows they lied in front of the grand jury, their credibility is going to go out the window.  That‘s the...

(CROSSTALK)

RICHARDS:  ... benefit of these grand jury transcripts.

ABRAMS:  And look, and that‘s going to be the big question.  And again, you know, it is worth repeating even though Ron Richards obviously on this program to really defend Jackson, that they didn‘t get a chance to cross-examine and this is a one-sided proceeding.  That is a fair comment for Ron Richards...

RICHARDS:  And they skipped the prelim, too, Dan.  There was a reason why...

ABRAMS:  Yes.

RICHARDS:  ... Sneddon didn‘t want to subject the witness out of prelim.

ABRAMS:  Well we shall see.  But, you know, look, this is serious specific stuff.  Ronald Richards, he‘s going to be on the show a lot talking about this.  Good to see you Ron...

RICHARDS:  Thanks for having me on.  Thank you Dan.

ABRAMS:  Up next, if the man accused of pointing a laser at an airplane doesn‘t get the max, it doesn‘t mean he‘s getting off.  It is my “Closing Argument”.

Don‘t forget your e-mails, abramsreport@msnbc.com.

(COMMERCIAL BREAK)

ABRAMS:  If a criminal doesn‘t get the maximum sentence, does it mean he‘s getting off scot-free?  No and yet some just don‘t seem to get that.  It‘s my “Closing Argument” coming up.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why some people seem to confuse not the maximum sentence with getting off.  It‘s an issue that comes up often on this show, one worth clarifying.  Every time we discus a topic ranging from the guy facing up to 25 years for shining a light laser at an airplane while he says he was showing his daughter how it worked to Texas mom Andrea Yates who killed her five kids and whether the death penalty is appropriate, two topics that we‘ve addressed recently, some who advocate the maximum like to change the subject by saying anything but the max means she would be getting off or ask would you—how would you feel if a laser was pointed at your plane?

If our discussions suggested that Yates or laser man should serve no time, those would be appropriate responses.  But often what we‘re asking is does the punishment fit the crime.  How does it compare to other crimes?  For Yates, obviously the question is mental illness.  For laser man, it‘s a question of whether idiocy and maybe a prank with no relation to terrorism is an offense that warrants many, many years behind bars.

Crime can be treated seriously without necessarily believing that this is one of those cases of particular concern where only the maximum would be appropriate.  Some seem to be saying prove to me that the maximum is not appropriate as opposed to asking why is this particularly heinous?  This brings me to a related issue.

My regular viewers know I tend to be tough on crime and criminals, but I also want to maintain my credibility with you, so I‘m not just going to automatically say the max is the only option as some host and legal analyst who sound like politicians trying to see who can be the toughest on crime.  Not with me.  You get a case-by-case assessment.  Sometimes you‘ll agree with me.  Sometimes you won‘t.  But you‘ll always know I‘m going to be giving it to you straight.

Coming up, your reaction to those two men arrested for telling lawyer jokes at the courthouse.  Your e-mails in 60 seconds.

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say, now it‘s time for “Your Rebuttal”.  Actor Robert Blake‘s trial opened on December 20.  We covered the trial a bunch of times since the opening statements, but Judith Homewood in Washington wants more.

“I watch your show most evenings.  I‘d be interesting in hearing some reporting and analysis of the Blake trial.  To date I haven‘t heard anything.  Is there a reason for this?”

Well, Judith, the reason, I think most people aren‘t that interested in the case.  But am I wrong?  I mean write in, let me know.  I‘m interested in your thoughts on that one.

Last night we had some laughs at two senior citizens arrested at a Long Island courthouse for telling lawyer jokes.

Jess Woodward in North Carolina.  “Have those two guys who were arrested for telling lawyer jokes on your show again.  They could probably tell those jokes for the entire hour.  What a blast.”

But attorney Patricia Davis in Houston says, “I was thrilled to hear of the arrests of the two men who were telling lawyer jokes outside a courthouse.  But were they arrested for harassment or for telling bad jokes.”

All right.  Yesterday we brought you the story Michael Ross, Connecticut death row inmate, he‘s been fighting to move forward with his execution.  Today the State Supreme Court cleared the way for just that rejecting the public defender‘s argument that Ross is incompetent to decide his own fate.  Ross will—is now expected to die at 2:00 a.m. on January 26.  His attorney says Ross will be happy to hear about the court‘s decision, one that I agree with.

“OH PLEAs!”—on Wednesday we told you about a case where a New Jersey man was tracked by the FBI and then charged under the Patriot Act for shining a laser pointer at a jetliner.  It‘s apparently been happening more often as of late.  Well talk about sewing confusion.

According to the “L.A. Times,” NORAD, the North American Aerospace Defense Command, has just announced plans to test a system to warn pilots when they enter restricted air space over Washington, D.C.  Guess what they‘re going to use?  Red and green lasers.  Less intense than the typical laser pointers, but lasers nonetheless.  The pilots say they are confused on how to tell the difference between an official one and an unofficial harassment.  Anyone armed with a pointer.  “OH PLEAs!”

That does it for us tonight.  Have a great weekend.  “HARDBALL” with Chris Matthews is up next.

See you Monday.

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

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