updated 2/4/2005 6:25:11 PM ET 2005-02-04T23:25:11

Guest: Solomon Wisenberg, Jeralyn Merritt, B.J. Sigesmund, Joy Gamble, Carl Gamble, Bert Gall, Thomas Williams, Tim Burke, Mickey Sherman

DAN ABRAMS, HOST:  Coming up, defense lawyers once called him “the death penalty governor”, now President Bush is reaching out to try to help defense attorneys. 

(BEGIN VIDEOTAPE)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  Soon, I will send to Congress a proposal to fund special training for defense counsel in capital cases, because people on trial for their lives must have competent lawyers by their side. 

ABRAMS (voice-over):  A bold statement in the State of the Union address, but he‘s been president for four years.  Did it take this long because it‘s just a political football to support defense attorneys? 

And they‘ve lived in the same home for 35 years, but they‘re being forced out by their city today to make way for a mall.  Building a necessary highway is one thing, but a shopping mall? 

Plus, Martha Stewart isn‘t supposed to be doing business in prison but now she‘s reportedly making phone calls to a staffer at her magazine and talking in code about dogs and gardens. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the doctor tonight, the president, has he undergone a change of heart when it comes to criminal defendants?  On Wednesday night, the president threw his support and nearly 250 million behind increasing DNA testing to prevent wrongful convictions.  He also said he wants to spend more money to train lawyers who defend people facing the death penalty.  Kind of surprising coming from the same man who as governor of Texas pushed through a new law dubbed “the speed the juice law”, which guaranteed more executions more quickly. 

And in 1999, Bush also vetoed a Texas law that would have made sure that poor criminal defendants in Texas had competent lawyers.  So, why has the president seemingly changed his tune?  With all of the elections behind him, does he finally feel comfortable addressing a politically touchy subject? 

“My Take”—the president deserves credit for mentioning it in his State of the Union, though I do wonder why now.  Bottom line, wrongful convictions and incompetent defense attorneys have been exposed throughout the system.  It‘s clear, though, there is still a huge political stigma attached to saying publicly that a convicted murderer shouldn‘t fry.

Joining me now Solomon Wisenberg, former independent counsel during Whitewater and criminal defense attorney Jeralyn Merritt.  All right, Mr. Wisenberg, was this just a political issue?  Could it—was it that the president just simply could not back defense attorneys in any way until after the election? 

SOLOMON WISENBERG, FORMER INDEPENDENT COUNSEL:  Who cares?  I mean, if he was—if he came out for a national shield law for reporters and it was political and after the election, I imagine you‘d support it. 

ABRAMS:  But I would still say, why now?  I would still say what happened?  Why didn‘t this happen four years ago? 

WISENBERG:  Well, what I would say is what next?  Meaning, let‘s take a look at the legislation.  We don‘t know what it‘s going to be yet.  Let‘s take a look at the specifics.  But I don‘t care why he did it.  It‘s a valid thing to do.  It‘s like Governor Ryan in Illinois.  He had—probably had a lot of reasons for releasing people from death row who were innocent.  I don‘t care about that if what he did was right. 

ABRAMS:  Let me play a piece of sound from President Bush at the State of the Union. 

(BEGIN VIDEO CLIP)

BUSH:  In America, we must make doubly sure no person is held to account for a crime he or she did not commit.  So we‘re dramatically expanding the use of DNA evidence to prevent wrongful conviction. 

(APPLAUSE)

(END VIDEO CLIP)

ABRAMS:  Jeralyn, two-part question.  First question, quick answer, do you view this as a change of heart on the part of the president?

JERALYN MERRITT, CRIMINAL DEFENSE ATTORNEY:  No. 

ABRAMS:  Do you—well tell me why.

MERRITT:  First of all, the legislation for DNA testing was passed in October and it‘s called the Justice For All Act.  And what it really is, is a crime victim‘s bill.  Out of the $1 billion in the bill, 25 million is being set aside for DNA testing for convicted inmates.  There‘s three—there‘s 755 million of it that is going to test old rape kits to try and find the perpetrator of the crime. 

ABRAMS:  But it still says something...

MERRITT:  This is...

ABRAMS:  ... that he‘s mentioning it in the...

MERRITT:  It says something, yes. 

ABRAMS:  But he‘s saying it in the State of the Union.  I mean in addition to putting up, what you view as insufficient funds, OK, you can debate about funds, but the bottom line is the president is making it—when you mention it in the State of the Union, it becomes a priority. 

MERRITT:  Well, it does and it doesn‘t.  I mean, this has been ongoing since 2001 when this bill was first introduced and it was President Bush‘s Justice Department that stopped the passage of this legislation.  And finally, it got watered down to where it is now. 

Now let me just praise Senator Leahy, Representative Delahunt and LaHood, because they worked for three years to get this legislation passed.  And yes, we‘ll take it.  It is way better than nothing.  But I don‘t know why he is trying to claim credit for it all of a sudden in his State of the Union address...

ABRAMS:  Well I don‘t think he‘s claiming—I got to tell you, I don‘t think he‘s claiming credit for it.  I think he‘s just making—he just had a line where he said it‘s time to make some changes.  But, Mr. Wisenberg, listen to this piece of sound from President Bush in the 2000 campaign. 

(BEGIN VIDEO CLIP)

BUSH:  And as far as I am concerned, there has not been one innocent person executed since I have been the governor. 

(END VIDEO CLIP)

ABRAMS:  Do you think that his view on that has changed? 

WISENBERG:  Well, assuming that that was his view.  I don‘t think his view on that has changed.  But I think Jeralyn said something really important.  The most important thing is making sure that the DNA evidence that exists out there in the states is preserved.  There are actually some states that have tried to pass laws that you can throw away old evidence that contains DNA after a certain period of time.  That is a very critical issue...

ABRAMS:  Yes.

WISENBERG:  ... that we shouldn‘t ignore.  But no, I don‘t think his views have changed on that, but I‘ll take what I can get, whatever his motives are. 

ABRAMS:  Fair enough.  All right, let‘s—issue two that he mentioned in the State of the Union.  Let‘s listen to the president talking about judicial nominees. 

(BEGIN VIDEO CLIP)

BUSH:  Because courts must always deliver impartial justice, judges have a duty to faithfully interrupt the law, not legislate from the bench. 

(APPLAUSE)

BUSH:  As president, I have a constitutional responsibility to nominate men and women who understand the role of courts in our democracy and are well qualified to serve on the bench and I have done so. 

(APPLAUSE)

(END VIDEO CLIP)

ABRAMS:  You know, Mr. Wisenberg, what makes me uncomfortable is this constant reference to these activist judges and there are some—quote—“activist judges” out there, but it sounds like what the president wants, when he says judges have a duty to faithfully interpret the law, is what he wants is judges who are just going to roll over, who are going to say the legislature has passed this law and as a result, the court should stay out of it.  And yet, that‘s not the way the system was designed. 

WISENBERG:  Well, it‘s hard to find people who aren‘t hypocritical when it comes to judicial issues.  You know, it‘s usually a question of whose ox is being gored.  Now I think what we should be looking for is—the focus should not be on whether you are an activist or not.  It‘s whether you are fairly interpreting a piece of legislation...

ABRAMS:  But one person‘s activist is another person‘s unfair judge.  I mean... 

WISENBERG:  Don‘t we want an activist judge if there‘s been a clear violation of the First Amendment?  Yes.  Do we want an activist judge who‘s creating a right out of whole cloth that really isn‘t in the statute.  No.  So, it all depends on exactly what he means.  He‘s speaking at a very high level of generality...

ABRAMS:  But intentionally so and we hear this again and again from the president that this notion that there is somehow this whole cadre of insidious—look I know a lot of my viewers feel this way.  That there are all these insidious judges out there who are trying to subvert the law, but the bottom is judges are not supposed to just be rubberstamping legislation. 

WISENBERG:  Well they‘re not supposed to rubberstamping legislation, but they‘re also not supposed to be giving unnatural interpretations of the statute or the Constitution.  And you know as well as I do there are activist judges on the left and on the right who are result oriented.  And I think it‘s right not to have people like that on the bench.  I want somebody who makes a fair, neutral effort...

ABRAMS:  Yes, we all do.  We all do...

WISENBERG:  ... say this is what the statute...

ABRAMS:  But here‘s another piece of sound about judicial activism. 

(BEGIN VIDEO CLIP)

BUSH:  Because marriage is a sacred institution and the foundation of society, it should not be redefined by activist judges.  For the good of families, children and society, I support a constitutional amendment to protect the institution of marriage. 

(APPLAUSE)

(END VIDEO CLIP)

ABRAMS:  I mean again, Jeralyn, it seems that every time a judge does something that people, the president, whoever, don‘t like, they are tarred as activist judges. 

MERRITT:  Well that‘s right and I think what we really have to be aware of is extremist judges.  And I have to differ with President Bush because I think it‘s the judges that he has nominated that fall on the extremist sides.  People like Priscilla Owen that did not get confirmed by the Senate.  And you know, he can—it‘s fine to say he wants a strict constructionist and things like that, but what he really should be doing is appointing people even that are somehow going to be acceptable to both sides of Congress...

ABRAMS:  That‘s not going to happen. 

MERRITT:  ... and that‘s where he‘s running into problems.  He doesn‘t have to pick these people that are so far extreme that they are going to cause filibusters. 

ABRAMS:  And do you think that, Mr. Wisenberg, that the problem with some of them some—and you make a point that it‘s important to distinguish between extremists who are activists and extremists who are not, but generally and quickly, what do you make of the general pool of judges who have been appointed who haven‘t been confirmed?  Do you view them as, “A”, out of the mainstream, and “B”, maybe some of them activist judges in their own right? 

WISENBERG:  No, and by and large, they have been the victim of demagoguery including Priscilla Owen who is not in any way an extremist or an activist.  One or two of them have been questionable because of things they did on the bench.  But the key to me is I don‘t want an extremist, but activism is OK if you are really interpreting the Constitution fairly. 

ABRAMS:  Yes and that‘s always the big question, is what is fair?  Solomon Wisenberg and Jeralyn Merritt thanks a lot.

MERRITT:  Sure.

ABRAMS:  I think you guys are sticking around.  Coming up, Martha Stewart is not just getting one TV show, she‘s getting two.  But she‘s not supposed to be negotiating deals in prison.  She‘s reportedly making phone calls to a staffer at her magazine, even talking in code.

Yogi Berra is upset that an ad has been using his name for “Sex and the City”.  He‘s suing for 10 million. 

Plus, their city is taking the home they‘ve lived in for 35 years to build a shopping mall literally saying, get out.  Can they do that? 

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:  Up next, Martha Stewart is not supposed to be doing any business in prison, but according to one report she‘s been spending a lot of time talking to a staffer from her magazine about dogs and gardens that could be code.  Coming up.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  We‘re back.  It‘s no surprise to hear that Martha Stewart is talking about dogs and gardens while chatting on the phone from the federal prison where she‘s serving a five-month term.  But a new report in “US Weekly” magazine claims Martha may actually be talking in code that are seemingly harmless chats about domestic drama may really be a secret way of telling a senior staffer on one of her magazines how to market and build up the brand. 

Remember, while she‘s serving out her prison sentence, she is barred from being involved in running her company.  Still, that didn‘t stop an announcement yesterday that Stewart will star in a new version of  “The Apprentice” on NBC when she gets out in addition to another live daily show.  But in theory, that was all worked out before she started serving time. 

Joining me now, “US Weekly” senior editor B.J. Sigesmund.  Good to see you B.J.  All right, let‘s start with this issue of the code business.  What‘s going on here?  She‘s talking in code in prison? 

B.J. SIGESMUND, “US WEEKLY” SENIOR EDITOR:  Yes, I‘d like to get a look at this code.  I think it would be very interesting.  As you reminded viewers just now, it is absolutely crucial that Martha not do business while she was in prison.  They could extend her sentence and she‘s almost at the end of it.

She‘s coming out March 6 and look at all this great stuff she has waiting for her.  A daily show that Mark Burnett is going to produce with her and then, of course, her weekly version of “The Apprentice” that they just announced yesterday...

(CROSSTALK)

SIGESMUND:  But yes, in our magazine this week in “US Weekly”, we talked to someone who said that Martha may have been conducting business in phone conversations while in prison through a code. 

ABRAMS:  What is may have been?  I mean you know, there are a lot of things that may have been the case.  What does it mean that she may have been?

SIGESMUND:  She may have been talking just about dogs and gardens.  But according to this source, it was more than that. 

ABRAMS:  All right.  So, the source is telling you that it was more than that, right...

SIGESMUND:  Yes.

ABRAMS:  All right.

SIGESMUND:  That when she was speaking about dogs and gardens with a staffer at “Everyday Food” magazine, which is one of her magazines, she actually was—this was code for the marketing of the magazine and building of the magazine. 

ABRAMS:  But how do you talk—I mean honestly, how do you—I mean there are people who are monitoring these kinds of conversations, right?  So, what she‘s saying, well you know I think that we need to increase the dog budget and we‘re going to—what‘s the other word, garden...

SIGESMUND:  ... a bigger garden...

ABRAMS:  Yes, exactly.  Exactly...

(CROSSTALK)

SIGESMUND:  ... garden.

ABRAMS:  Yes, we need a wider garden for our dogs.  I mean it sounds almost ridiculous. 

SIGESMUND:  Well you know, Martha is a very wise woman.  She didn‘t get to where she is by sitting back and letting things happen.  So you know, this could be the case.  We did contact the staffer and the staffer said, I can‘t talk about that...

ABRAMS:  Didn‘t deny it?

SIGESMUND:  ... we ran this.  It was not a denial.  It was just that I can‘t talk about this.  And then we also ran it by Martha‘s rep who had no comment.  So...

ABRAMS:  (UNINTELLIGIBLE)

SIGESMUND:  So, there you go. 

ABRAMS:  All right.  Well, as I am learning, sometimes people get it wrong.  All right.  So, let me ask you about this new TV show.  Is this going to be the same thing as “The Apprentice” on—with Donald Trump, just Martha Stewart? 

SIGESMUND:  You know, the part that I‘m looking for—no, I think it‘s going to be the Trump with a little more estrogen and obviously there‘s got to be a new catch phrase.  She can‘t use the tired old, “you‘re fired”.  She has to come up with her own thing and I mean I for one think it‘s a great, brilliant idea. 

I‘m a little suspicious that they actually came up with this five months ago.  But according to Mark Burnett, that is—that was the case.  And I mean I think Martha—a lot of young people could learn a lot from Martha and the way that she built her business, where she got the idea for her magazine, where she got the ideas for her television show.  And from what it sounds like, it will be essentially just like “The Apprentice”.  She‘ll start out with a group of people, 16 or so, and they will be weeded out week after week by Martha and maybe Martha‘s deputies.  Who knows?  I don‘t think it‘s going to Carolyn in there with her...

ABRAMS:  Yes.

SIGESMUND:  I think Martha will bring her own deputies.

ABRAMS:  The task will be centered around Stewart‘s area of expertise, media, home renovation, entertaining, design, merchandise and technology and style.  Stewart will bring her own sensibilities and creativity to the elimination process.  So, we don‘t know exactly sort of what the catch phrase is going to be, right? 

SIGESMUND:  No, but you know like all reality shows, they need a new gimmick after awhile because they get tired.  You know, we‘ve had three “Apprentices” now.  We need something new and this is just the sort of injection that a franchise like that needs. 

ABRAMS:  All right.  B.J. Sigesmund, thanks a lot for coming on the program.  Good to see you.

SIGESMUND:  Thank you, Dan. 

ABRAMS:  Coming up, imagine living in a house for more than three decades and then one day the city says you got to move so private developers can build a shopping mall.  We talk with a couple being forced out today and to their mayor who‘s making them leave.

And it looked Paris Hilton might be stealing a copy of her own sex video from a convenience store, now the prosecutors announce whether she will face charges. 

And we knew that murder victim Bonny Lee Bakley had been married before she met Robert Blake.  But wait until you hear how many times she‘d apparently been a bride.  Talk about why prosecutors brought it up in court.  That is a bizarre (UNINTELLIGIBLE).

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  Picture this.  You‘ve lived in your home for over 30 years.  Your children were—where your children were raised.  Your grandchildren run through the backyard.  Every year the holidays are celebrated in your living room.  You recently retired.  You‘re looking forward to having more time to spend with your neighbors, enjoy your garden. 

Then, you get word that the big bad developer wants to expand his nearby mall and build chain stores, office buildings and condominium and your home, among others, is in the way of the expansion.  You will be forced to pack up your life and move out.  How is this possible?  Under a law called imminent domain, which is the power of a governmental entity to take private real estate for public use, with or without permission of the owner. 

Joining me now, Joy and Carl Gamble, Jr. who are fighting to keep their Norwood, Ohio home from becoming part of a shopping mall expansion and their attorney Bert Gall with the Institute for Justice.  Thank you all for coming on the program.

All right, Mr. and Mrs. Gamble, give me a sense of—let me start with you Mrs. Gamble, where do we stand in this battle and what‘s happened.  What‘s the latest?

JOY GAMBLE, HOME SEIZED:  Well, we have been forced to pack our belongings and we have been forced to move out of here.  But we‘re not through fighting.  There is still an appeal in the courts.  We do hope to come back here to our home.  We do hope to save our home.  But right now, we have to vacate it. 

ABRAMS:  And Mr. Gamble, how do they determine how much money you got for the house?

CARL GAMBLE, JR., HOME SEIZED:  They determined the money through the court system. 

ABRAMS:  And how much did they give you?

C. GAMBLE:  Two hundred and eighty thousand.

ABRAMS:  And you weren‘t interested in selling at all, right?

C. GAMBLE:  Right, not interested in that money at all. 

ABRAMS:  All right, Mr. Gall, where do we stand legally?

BERT GALL, GAMBLES‘ ATTORNEY:  Well, legally, what the city of Norwood is doing is unconstitutional, it is wrong, and it is outrageous.  The Constitution only allows cities to take property for a traditional public use like a road or a bridge or a courthouse.  But the founding fathers never envisioned that developers could get cities to take land so that they could build a shopping mall or condominiums.  I mean that is just unconstitutional. 

ABRAMS:  And the Supreme Court is considering this issue, as well, right?

GALL:  Yes.  This February the Supreme Court will be hearing arguments on the issue of whether economic development, the idea that taking somebody‘s home, bulldozing it so that it will create more jobs and more taxes is a public use...

ABRAMS:  Right.

GALL:  ... and it can‘t be a public use because, you know, everyone‘s home could generate more tax dollars if you bulldozed it and turned it into a business.  And everyone‘s business could generate more tax dollars if you bulldozed it and turned it into a big box store.  By that standard, no one‘s or no one‘s business is safe. 

ABRAMS:  All right.  Well it sounds, you know, in its face like a pretty straightforward argument.  It is not.  Joy and Carl Gamble are going to stick around, as is their attorney.

The mayor who has forced the Gambles essentially to leave their home joins us, along with his lawyer.

And later, brawling on the court not confined to NBA fans.  There‘s a tape out there that could mean the Michigan authorities really did the right thing by charging fans and players in Detroit.  It‘s my “Closing Argument”.

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:  You‘re living in a home for 30 years, then you‘re kicked out for a shopping mall.  We‘ll talk a little bit more with a couple who‘s fighting their city.  First the headlines. 

(NEWS BREAK)

ABRAMS:  We‘re back.  We‘re talking about a case where a couple lived in a house for over 30 years are being kicked out so they can build a shopping mall.  Before we go to talk to the mayor who comes across as the big bad mayor in this case, but I‘m sure he‘s got an argument on this one.  We‘ll debate it.  Here‘s Anne Thompson with a little more. 

(BEGIN VIDEOTAPE)

ANNE THOMPSON, NBC NEWS CORRESPONDENT (voice-over):  On Atlantic Avenue, two visions of the future are on a collision course.  The city of Norwood, Ohio sees an upscale mall and apartment complex here...

UNIDENTIFIED FEMALE:  Match them up in there.

THOMPSON:  ... as Joy and Carl Gamble see the rest of their lives in the house they bought 35 years ago. 

UNIDENTIFIED FEMALE:  It‘s my home.  It‘s my only home.  The only home I ever had. 

UNIDENTIFIED MALE:  We got a little castle.

THOMPSON:  But it may not be theirs much longer.  The city has ordered them to leave by February 3, buying 99 homes and businesses to make way for the mall, declaring the neighborhood deteriorating.

THOMPSON (on camera):  What makes it deteriorating? 

UNIDENTIFIED MALE:  The noise, the congestion.  This used to be a quiet neighborhood.  It‘s not anymore. 

THOMPSON (voice-over):  The Gambles say this is an abuse of government power. 

UNIDENTIFIED FEMALE:  They are taking one piece of private property, taking it away from us and giving it to somebody else who is a private individual and that‘s not fair. 

THOMPSON:  How is this possible?  Using a law called eminent domain governments have long been able to force the sale of private property for public use, such as courthouses and highways, but the practice now includes making way for private developments. 

RICHARD BRIFFAULT, COLUMBIA UNIVERSITY PROFESSOR:  It could be office parks, industrial parks, big box stores on the theory that these will provide bigger tax base and more jobs. 

THOMPSON:  While most of the Gambles neighbors want to sell, the Gambles are holding on...

UNIDENTIFIED MALE:  Where‘s the article with our picture in the paper?

THOMPSON:  ... taking their fight to court. 

(on camera):  If the development fails, Mayor Williams says the city of Norwood will lose big time, one to $2 million a year in taxes.  But if the development goes through, the Gambles say what they will lose is priceless. 

(voice-over):  A judge upheld the city sale of the property and awarded the Gambles $280,000 for the three-bedroom house. 

(on camera):  Is there any amount of money that could get to you move? 

UNIDENTIFIED FEMALE:  No.  No. 

THOMPSON (voice-over):  Two visions with no room for compromise that will change forever the future of a city or a family. 

Anne Thompson, NBC News, Norwood, Ohio. 

(END VIDEOTAPE)

ABRAMS:  And back with us now are Joy and Carl Gamble, Bert Gall, who is their attorney.  And now joining us is Norwood‘s mayor, Thomas Williams, and special counsel for the city of Norwood, Tim Burke.

All right, so we‘ve heard from the Gambles.  Mayor Williams, you know that you come across in this as sort of the big bad guy taking away their home.  Lay out your case for us. 

THOMAS WILLIAMS, NORWOOD, OH MAYOR:  Well, it‘s been going on for two and a half years.  Here‘s the situation in our city.  Over the past years, we‘ve lost industry and it‘s just changed.  Manufacturing has diminished and left.  And this is not the first urban renewal project this city has done over the past 10 or 15 years. 

This is an area that has been deteriorating the quality of life with traffic and everything else.  And 65 homeowners have decided that they want to sell and move on with their lives because they were uncomfortable in the area.  And it‘s more than just a shopping mall.  It‘s 300,000 in office space, retail and 200 units—living units.  So it‘s a little more than that. 

And it‘s—our city, as most other cities in our area, are facing a deteriorating income and an increased call for services.  And it‘s one of those things.  It‘s a decision that you have to make for the benefit of 20,000 other residents. 

ABRAMS:  Mr. Burke, Mr. Gall makes a legal argument, which essentially says, you start doing this with private property, he says essentially we get the highways.  We get the use of purely public use.  But he‘s saying once you start getting into the business of taking private people‘s homes and using it for other private purposes, then every city is going to make a determination, not based on who owns the home, but what‘s best for the finances of that particular city. 

TIM BURKE, NORWOOD, OH SPECIAL COUNSEL:  Mr. Gall is ignoring 50 years of American jurisprudence because urban renewal started in Washington, D.C. and the Supreme Court has long upheld doing exactly what the city of Norwood is doing here, and that is acquiring property that has deteriorated or is deteriorating and turning it into something better for the benefit of the entire community. 

ABRAMS:  But that‘s republic.  I mean there is a difference...

BURKE:  No...

ABRAMS:  ... is there not? 

BURKE:  No, look around American cities and you will find that for the last 50 years, most urban renewal projects, particularly in downtown cores, have been done using urban renewal and where necessary using eminent domain.  And it‘s not just for roads and bus stations and that type of thing.  It‘s been for hotels and office buildings and the other kinds of things which bring in jobs, which create opportunity for people and their families and which do produce tax revenue for their community. 

ABRAMS:  So Mr. Gall, this has been happening all the time.

GALL:  Unfortunately, the abuse of eminent domain for the benefit of private parties does happen all the time.  But that‘s no reason that it should continue.  And that‘s why courts across the country are starting to clamp down and make sure this kind of abuse won‘t occur.  And that‘s why the Supreme Court we hope is also going to stop this abuse.  Because it is fundamentally wrong to take one private person‘s property, transfer it to someone who‘s richer and more powerful for their private use...

(CROSSTALK)

GALL:  ... and that‘s what‘s going on...

ABRAMS:  Look, as I said before, it sounds like the mayor is sort of the big bad guy in this story.  But what about the practical reality that this one home could hold up so many other people in the community from benefiting.  I mean the bottom line is if you‘re going to do a cost benefit analysis, I think there‘s no question that the community is going to benefit as a whole—all those individuals are going to be able to utilize that property, that land much more productively, if they are allowed to use this property. 

GALL:  What the community is going to benefit from is knowing that their property rights are secure and what they are going to be insecure about is knowing that their city council is going to give up their land and give it to a private developer whenever it thinks that somebody can make more money with that land.  So how is economic development achieved by that kind of situation where no one‘s home or business is safe? 

ABRAMS:  Mayor Williams, I‘ll bet—and you tell me.  I don‘t know the answer to this—but I‘ll bet that the majority of the members of the community probably support you on this one.

WILLIAMS:  That‘s true.  The council that voted on this originally, I was a member with—all were elected.  And one of the things I think you got to remember that if you remember what Mr. Burke said, this is done all across the country.  And I can‘t help but to feel that for some reason there are certain organizations that are trying to generate feelings to gain revenue or attention for themselves.  And for some reason, once again, it‘s landed on the city of Norwood.  What‘s been done is perfectly legal and upheld by the courts. 

ABRAMS:  But you can understand why Mr. and Mrs. Gamble are frustrated, right?

WILLIAMS:  Absolutely.  And I probably know—and I‘ve probably talked to Mr. and Mrs. Gamble more than the people who want to push their agendas, who come into our city and voice their opinion and then leave.  I‘ve probably talked to them and cared just as much, if not more about them, than they do who are using them to further their own agendas and that‘s as simple as I can put it. 

ABRAMS:  All right, Mrs. Gamble, your response? 

J. GAMBLE:  I don‘t recall talking very much to Mr. Williams.  A few things—I think just a few things.  I think I remember him saying you people are asking too much for your homes.  I heard him say that one time. 

ABRAMS:  What is the value of the home, Mayor Williams?  I mean we know the court has said $280,000.  Do you know what the value would be were you not to be using it for a mall, et cetera? 

WILLIAMS:  I‘m certainly not a real estate appraiser...

ABRAMS:  I would have thought that would have come up in court.  Mr. Gall, do you know? 

UNIDENTIFIED MALE:  There were—no, Mr. Gall was not involved in the evaluation trial.

ABRAMS:  I‘m sorry.  I meant Mr. Burke.  Sorry.  I apologize.  Go ahead Mr. Burke.

BURKE:  There were a variety of different opinions given by expert witnesses in the case.  But the fact of the matter is the $280,000 that the Gambles were paid far exceeds the purchase price for any single family home in that section of Norwood ever before. 

ABRAMS:  Mr. And Mrs. Gamble, what do you do now, in addition to fighting in the courts? 

C. GAMBLE:  I‘m retired.  That‘s all I do. 

ABRAMS:  Well, you got $280,000 now.  Are you going to go buy a new home?

C. GAMBLE:  I don‘t have it.  I don‘t want it. 

ABRAMS:  But, you know, but let‘s assume that things continue to go, are you just going to—as a matter of principle, do what?  Go to—how are you going to deal with it?

C. GAMBLE:  It‘s a matter of the way I feel. 

ABRAMS:  No, I‘m not...

C. GAMBLE:  I want my home. 

ABRAMS:  All right.

C. GAMBLE:  This home. 

ABRAMS:  Fair enough.  Joy and Carl Gamble, thanks for joining us on the program.  Bert Gall, Mayor Williams, Tim Burke, it‘s an interesting issue and we‘ll see what the U.S. Supreme Court determines on this issue as well.  It‘s going to be a fascinating argument. 

Coming up, it looked like Paris Hilton was stealing a copy of her sex video from a convenient store, now the prosecutors decide whether she‘ll face charges.  I have just one question—that‘s going to be a new segment we‘re going to do—and Mickey Sherman is going to answer it right after the break. 

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  We‘re back.  Everyday we‘ve got so many stories we want to cover but just don‘t have the time.  So we‘re starting something new tonight.  It‘s a segment called “Just One Question”, where we lay out three legal stories and ask our guest theoretically just one question about each case.  We couldn‘t think of a better first guest for our new segment than criminal defense attorney Mickey Sherman. 

All right, Mickey, here‘s the first one.  Yogi Berra filed a $10-million lawsuit against Turner Broadcasting because they used his name in a racy ad to promote “Sex and the City”.  The offending ad, which appeared on subways and buses, asked readers about the definition of a yogasm (ph) and one of the choices was “sex with Yogi Berra”.  “Just One Question”, does he have a case here?

MICKEY SHERMAN, CRIMINAL DEFENSE ATTORNEY:  You know, forget about the case, Dan.  At his age, he should be so thrilled that they are using his name in the same sentence, even paragraph as the word orgasm.  You know, I mean that‘s the win.  He probably has a case, but the damages are going to be like $12 or something.  They‘re profiting on using his name to sell a product.  But you know something, I think the courts have better things to do frankly.

ABRAMS:  But don‘t they—I mean he gave us his right by doing the program, right?  I mean every time someone has—does a program, aren‘t they giving up some, I guess I mean it wasn‘t on the show so...

SHERMAN:  No, no...

ABRAMS:  Yes.

SHERMAN:  ... not necessarily.  They are using his name to make a buck...

ABRAMS:  Right.

SHERMAN:  ... and I don‘t think his name is in—say the public domain.  You know, he didn‘t sign on for that.  When you use somebody‘s name, they got to get paid.  This is your dad‘s field, not mine. 

ABRAMS:  Yes.  All right.  Topic two:  Came out in testimony at the Robert Blake trial yesterday that the victim, Blake‘s ex-wife, Bonny Lee Bakley, was married to, get this, nine other men, before she married Blake.  Blake‘s attorney asked one of the detectives on the case why police didn‘t investigate some of the other significant others about her murder.  So, the question, the one question, how much of an impact does that have on the case?

SHERMAN:  I think it has a lot of impact.  And you know—so those are nine people who had a motive to kill her and we‘re not even talking about the other people who she tried to get to marry her and didn‘t marry her, but she just maybe extorted money from them.  I mean you know, the problem with this case for the state is that where in Laci Peterson, you had a lovely young girl who everybody loved and everyone just shed a million tears, as well they should, when she died.  When Bonny Lee Bakley was...

ABRAMS:  Yes.

SHERMAN:  ... known as the victim, people didn‘t celebrate but you know, it loses a heck of a lot...

ABRAMS:  So in the Scott...

SHERMAN:  ... a lot of people who wanted to kill her. 

ABRAMS:  ... in the Scott Peterson case then you think that the authorities were obliged to investigate every ex-boyfriend, for example, of Laci‘s?

SHERMAN:  Not the same.  She didn‘t have the pedigree or the lack of pedigree that Bonny Lee Bakley had.  Bonny would marry people—she set her designs on people because she wanted to be famous.  It‘s as simple as that.  That‘s by her own admission.  She basically extorted money from people.  She did a lot of bad things.  Laci Peterson, the only bad thing she did apparently was marry Scott Peterson. 

ABRAMS:  Yes.  All right.  Topic three:  Paris Hilton won‘t face theft charges even though the surveillance tape appeared to show her stealing a copy of a sex video that she starred in from a local convenience store, at least taking it and throwing it, and taking it and the L.A. D.A. says there just isn‘t enough evidence.  One question, did she get off easy so to speak?

SHERMAN:  I‘ll tell you, Dan, you know, this is a travesty of a sham of a mockery of a forest.  I mean this woman should be arrested because she‘s been spending too much of her own Hilton cash on getting publicity.  It‘s about time that the taxpayers of the state of California started funding her goofiness exposure.  This is insane.  They should never arrest this person.  It would feed into her publicity, you know, seeking.  It makes no sense... 

ABRAMS:  But...

(CROSSTALK)

ABRAMS:  Let‘s be practical here though, Mickey.  Let‘s assume...

SHERMAN:  Yes.

ABRAMS:  ... were somebody else, right?  Not Paris Hilton...

SHERMAN:  Yes.

ABRAMS:  ... and you had the exact same video doing the exact same thing.  Would they have been charged?

SHERMAN:  Yes, probably would. 

ABRAMS:  Really?

SHERMAN:  And you know something?  Yes, probably would.  You steal something, you get arrested.  But with her it‘s a different deal.  She‘s never going to go to jail for this.  This is not Martha Stewart, but she‘s just going to make this a publicity, you know, a bonanza.  Why did we—why does the public have to fund that?  And besides, I don‘t know about you, but aren‘t you sick of seeing things about Paris Hilton?  I think we‘ve had enough. 

ABRAMS:  Yes, but I think that people would say—I mean look, and I think the D.A.‘s office saying they just don‘t have enough evidence to charge her, but you know I think the D.A., if they‘ve got evidence, which they say they don‘t have, but if they had it, you should not charge because it‘s Paris Hilton.

SHERMAN:  No, it‘s—people would accuse them of being—of having selective prosecution. 

ABRAMS:  Right.

SHERMAN:  It‘s not selective prosecution.  It‘s appropriate discretion.  Every crime doesn‘t mean that it has to be prosecuted.  Prosecutors make these decisions every day and this is a good one for the prosecutor to make.  Move on.  I mean how much time did they spend with Zsa Zsa Gabor.  OK.

ABRAMS:  Mickey, “Miami Vice”, Sherman, good to see you.

SHERMAN:  Good to be here.

ABRAMS:  Coming up, first it was a brawl between the Indiana Pacers and Detroit fans.  Now, it‘s this.  This.  (UNINTELLIGIBLE) no, not that one.  Anyway, that was the old fight.  All right.  A good thing the authorities in Michigan charged fans and players there.  Hopefully it sends the right message.  My “Closing Argument” will make sense I hope.

And remember 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, if you think that the Michigan D.A. was too tough charging players and fans in that basket-brawl, I‘ll show you exhibit A as to why it was important.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—some have said that the authorities came down too hard on the fans and players after that brawl during the Indiana Pacers/Detroit Pistons game earlier this year.  Criminal charges filed against five players and seven Detroit fans. 

Well here‘s exhibit A.  This melee after a girl‘s basketball game in Alabama.  Chairs were thrown, people dispersed, nine charged.  Taser guns fired to calm some in the crowd.  Now, that‘s not to say this was a direct result of the pro fight.  After all, it seems that this latest fight was sparked by a battle between students at rival schools. 

But there‘s still something spooky about seeing this type of violence at a high school girl‘s game so soon after the pro fight.  Whether they like it or not, the pro set the example.  And in both cases the D.A. is rightly setting an example as well by coming down hard on many of those involved. 

Coming up in 60 seconds “OH PLEAs!” and a jury sentenced him to die but the death sentence was overturned because jurors used Bible verses during deliberations when deciding to vote for life or death.  We told you about the story last night.  Tonight your e-mails coming up. 

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night we read questions that all the potential jurors in the Michael Jackson case had to answer, including some that referred to Jackson‘s 1993 investigation.  And I asked, what are they doing asking people if they‘re familiar with the ‘93 investigation against Jackson?  If a prospective juror wasn‘t familiar with the investigation, the questionnaire sure changed that. 

Brian from New York.  “You either didn‘t own a TV or read a newspaper to not know that allegations of molestation had been lodged against M.J.  The public is a lot smarter and have better memories than you think.”

Brian, the majority of the public I‘m sure know and just about everyone who watches this show certainly does.  But I can tell from you experience covering high profile trials that many prospective jurors have not been following these cases as closely as you seem to think. 

Last night we told about Robert Harlan convicted in a kidnap, rape and murder of a 25-year-old woman in 1994.  The jury sentenced him to die, but the death sentence was overturned jurors—why—because jurors cited and wrote out Bible verses during deliberations when deciding to vote for life or death.  I said it‘s one thing for jurors to turn to the Bible for solace and comfort, but it‘s something else entirely for a juror to effectively seek legal instruction in a capital case in its pages. 

Our guest, Bob Grant, supported the prosecution.  Jennifer Supman in California writes, “I do not agree with Bob Grant that it‘s appropriate for jurors to base their decision on what the Bible says for one main reason.  Not everyone believes the Bible to be the ultimate truth.  Thus, to convict someone on that basis seems unjust.  The Bible has not been adopted by society as the law of the land.”

Tad McArdle in New Jersey.  “For jurors to use reverberant Bible phrases in this simplistic and prescriptive way is irresponsible.”

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

“OH PLEAs!”—from the man with the golden gun to the nanny with the bare buns.  A nanny with an education degree taught more than the ABC‘s to a 4-year-old boy in Shell Island (ph), Florida.  Twenty-three-year-old Sarah Slicker considered a very qualified nanny, sat down with the young boy to watch a James Bond movie.  Apparently 007, got the boy begging. 

After viewing Bond‘s seductive ways with the ladies, the child playboy insisted his nanny show him more than another Barney video.  According to the nanny, the 4-year-old wanted something slicker from Slicker and asked to see her naked.  She obliged.  The biology lesson ended when the mother unexpectedly stopped home, seeing her 4-year-old on top of the naked nanny. 

The nanny explained, I was getting ready to take a shower.  After Slicker was kicked out without a shower, she drove to the St. Petersburg Police Station to report the incident herself.  In court, the naughty nanny blamed exhaustion, stating that the little boy‘s incessant demands, please nanny, let me see, led her to agree to take the mystery out of the female body.  Slicker was convicted, found guilty of lewd and lascivious exhibition.  The naughty nanny could spend up to 30 months in prison. 

That does it for us tonight.  Remember, we now have our own “blawg” “Sidebar”, the “blawg” about justice.  It‘s at abramsreport.msnbc.com.

Coming up next, “HARDBALL” with Chris Matthews.  His guest tonight, comedian Bill Maher.  Chris gets his take on the State of the Union.

See you tomorrow. 

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

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