updated 4/13/2005 12:24:42 PM ET 2005-04-13T16:24:42

Guest:  Craig Smith, Ronald Richards, Rep. John Culberson, Joel Androphy, Aitan Goelman>

DAN ABRAMS, HOST:  Coming up, the second boy to testify Michael Jackson molested him holds up under tough cross-examination. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  A bad day for Michael Jackson.  The second accuser, now a man, clashes with Jackson‘s attorney but sticks to his story that Jackson touched him inappropriately repeatedly.  The judge even scolded Jackson‘s attorney.  How much trouble could this mean for Jackson? 

And one U.S. senator appears to be linking recent violence against judges to frustrations over judicial activism.  How insulting is that to these innocent victims who are serving the public? 

Plus, Martha Stewart wants to end her house arrest early because it‘s in her company‘s best interest.  That‘s really the argument.  I swear. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, this could be a make or break day in the Michael Jackson case.  Another accuser in the Jackson case held his own under heated cross-examination by Jackson‘s attorney, Thomas Mesereau. 

Yesterday, the son of a housekeeper who worked for Jackson described in detail three incidents; two where he says Jackson touched his genitals over his clothing while tickling him.  And one where he says Jackson touched him under his clothes, all of it more than 10 years ago.  Today, Thomas Mesereau tried to poke holes in that story by asking the now young man to recall statements he made in four separate interviews about the incidents of alleged abuse. 

Mesereau going after the witness about varying accounts he supposedly gave the prosecutors, jumping from interview to interview, clearing confusing the witness.  At one point the judge had to step in warning Mesereau—quote—“you‘re going to have to direct—if you‘re going to question in this manner, you‘re going to have to direct it to specific times.  There were three interviews.”

(BEGIN VIDEO CLIP)

THOMAS MESEREAU:  OK, I‘m sorry Your Honor.

JUDGE RODNEY MELVILLE:  And you‘re being unfair to the witness in my opinion.” 

(END VIDEO CLIP)

ABRAMS:  NBC‘s Mike Taibbi was in the courtroom today and he joins us now.  Mike, this sounds great for the prosecution and horrible for team Jackson. 

MIKE TAIBBI, NBC NEWS CORRESPONDENT:  Yes, I think on its face it does, Dan.  There‘s no question this was a powerful witness.  But let me say a couple of things.  Number one, your characterization of it being fierce cross-examination, a heated cross-examination, I‘m not sure in the courtroom it came out that way.  I think it was persistent and I think frankly Tom Mesereau was being careful in front of a jury that has four Hispanic members by our estimation to not jump on this very sympathetic witness, very compelling witness and make it seem as though he was harassing him. 

There was that one admonition by the judge, as you point out.  Two points let me make right now.  One, there‘s a lot of case to try in this yet.  I‘m sure Ron Richards will tell us later that Tom Mesereau is planning a substantial defense of the instant case.  But the second point is that this old evidence, this so-called 1108 evidence from uncharged events in the past is extremely powerful.  It‘s either going to prove one pattern or the other, either that Michael Jackson is a serial child molester, whose grooming activities and prior molestations prove the current case or tend to prove the current case or he‘s a serial victim. 

A secret drunk, as I suggested last week, who maybe is blind to the ways—his own words—and actions have invited his own victimization.  One pattern or the other is going to be proven.  Everything is on the table. 

Now about the cross-examination today, here‘s how it went.  Three quotes from the accuser and how Mesereau dealt with it.  The accuser said about the second alleged incident, we were watching cartoons again.  We were laying in a sleeping bag.  Jackson behind me spooning me, again, he started with the tickling.  It was longer tickling.  I wasn‘t laughing as much this time.  He was tickling me from behind in my genital area and I was laughing and trying to tickling him back.

QUESTION:  Were you aware it was happening while it was happening?

ANSWER:  Yes.

QUESTION:  How long did it happen?

ANSWER:  About two cartoons worth.

QUESTION:  Did you feel uncomfortable at the time?

ANSWER:  Yes and no.  No because it‘s all fun.  It‘s supposed to be innocent because you‘re a little kid, but yes because it‘s not right.”

TAIBBI:  Very powerful on direct.  What Mesereau was able to do with that was to bring back the statement this then boy made in his interview all those years ago in which he said that the tickling lasted about 30 seconds when under direct he said two cartoons worth would be more than five minutes if he was watching Woody Woodpecker.  Small thing, I‘m not sure the jury picked that up.

Second example, the boy said, now 24-year-old man, in the fifth grade I told my friends I knew Michael Jackson and it was cool.  They didn‘t believe me but it was cool.  In junior high it was no longer cool to know somebody who had issues with kids—again the kind of thing that would resonate with the jury. 

Mesereau‘s approach to it:  Wait a second.  That means you knew about the other big scandal that was ignited in 1993 involving the first major accuser against Jackson.  And it turns out that the boy or the boy‘s family did know about that claim and he did make his statement and get with his own attorneys after all that had happened. 

Last example, again, from the boy on direct.  He put the money in my shorts because I pulled it out of my shorts and that‘s when my mom saw it. 

And under direct examination by Ron Zonen (UNINTELLIGIBLE) prosecuted, he

said he put it inside his shorts.  Mesereau later on got the boy to admit -

·         got the boy‘s mother to admit that she in fact took it out of a pocket because he was wearing pants with an outside pocket.  These are small things, but Tom Mesereau couldn‘t go much...

ABRAMS:  Mike, stay with me because “My Take”...

(CROSSTALK)

ABRAMS:  ... said it before I‘ll say it again.  If Jackson gets convicted, I think it will be based on the power of these other alleged incidents of molestation.  I think this could be a turning point in the trial. 

We bring in our legal team—former Santa Barbara prosecutor Craig Smith, who was in the courtroom today.  And defense attorney and NBC News analyst Ron Richards. 

All right, Craig, I know what Ron is going to say.  But you were in the courtroom today.  I read this transcript, I see this young man now holding up on cross-examination and I say big trouble for Michael Jackson. 

CRAIG SMITH, FORMER SANTA BARBARA PROSECUTOR:  Well I think you‘re right.  The boy was very good.  He did hold up.  I think Mesereau was decidedly reserved and circumspect in the way he approached the cross-examination of the witness.  He knew there was a limit to what he could elicit from this witness that would be favorable for his case, and he wanted to do as much as he could.  He spent a lot of time planting the groundwork for things he might want to bring in later in his case later in the defense to possibly try to impeach the witness.  But all in all, the boy held up very well. 

ABRAMS:  Yes, bottom line, Ron, is he‘s not coming across as a liar. 

RONALD RICHARDS, CRIMINAL DEFENSE ATTORNEY:  And I will tell you, Dan, I don‘t think it‘s a big deal because look at the context of which you have it and these are decade-old allegations.  Michael Jackson settled his claim long before 1108 was ever enacted by the California legislature...

ABRAMS:  Who cares? 

(CROSSTALK)

ABRAMS:  Who cares whether 1108 was enacted by the California legislature...

RICHARDS:  Because...

ABRAMS:  ... before or after? 

RICHARDS:  Because you‘re creating the perception that somehow the defense is supposed to annihilate this witness...

ABRAMS:  No...

RICHARDS:  ... and you just take the witness...

ABRAMS:  Look, I‘m not blaming Tom Mesereau.  I‘m not blaming Tom Mesereau.  I‘m saying—you know look, the lawyering we can talk about you know at the National Law Conference, all right?  But now we‘re talking about whether Michael Jackson is in big trouble now.  And the bottom line is, and I‘m not blaming Tom Mesereau, but this witness sure sounds like he‘s coming across as pretty credible.  Ron, do you disagree?

RICHARDS:  Well but his mother—well his mother though was on “Hard Copy” trying to victimize his story. 

ABRAMS:  Fine.

RICHARDS:  That‘s not consistent.  And what you‘re going to find is this case is about the accuser that‘s charged in the indictment as the victim...

(CROSSTALK)

RICHARDS:  ... not all these other witnesses. 

ABRAMS:  I know...

RICHARDS:  At the end of the day they‘re going to have to believe that accuser. 

ABRAMS:  I know.  Well look, I think—here‘s what I think about this.  I think that if this kid comes across as believable, this now young man, in a way I think these jurors are going to subtly shift the presumption.  And they‘re going to—they‘re not supposed to do this, I know, but the bottom line is I think if they believe that Michael Jackson is doing this to a 7-year-old and then he‘s 8 and then he‘s 10 and his mother works for Jackson, if these jurors believe that, I think that they are going to be much more likely to presume that he did it again. 

RICHARDS:  Well, that‘s the whole point of the evidence section.  They may look at Michael Jackson in not the best light if they believe everything, but that doesn‘t mean they‘re going to convict him and find he‘s guilty beyond a reasonable doubt.  It‘s something that I agree with you they‘ll consider, but at the end of this day, this is someone that was interviewed by a D.A., by the Santa Barbara sheriffs and he said nothing happened.  His mother testified in a deposition that she saw nothing.  I understand now he‘s saying something happened now, but at the end of the day that doesn‘t mean he‘s going to get convicted and it‘s not—quote—

“devastating” like was reported yesterday. 

ABRAMS:  Well look, I think it is devastating.  I mean whether he gets convicted, and you know look, I‘ve long predicted that Jackson was going to be found not guilty in this case, but I‘ve also said that if he does, it‘s going to be because of this. 

You know, Craig Smith, let me read you—this is something that came up in the direct examination of the boy. 

He actually touched you? 

Yes.

On your penis or your testicles? 

Option two.

For what period of time?

I don‘t remember.  Three to two minutes.

I mean again, and Mike pointed this out before, does it really matter if at one time he said one incident occurred for 30, 45 seconds?  Another time he‘s saying it occurred for a number of minutes?  I mean the kid was 7 or 8 or 10 at the time. 

SMITH:  In the final analysis, I don‘t know that it‘s really going to matter.  I don‘t think that the details are going to be as important as a relative convincing force of the evidence in the end.  You know, this was a very strong witness.  This—no doubt up to this point in the trial, this is the prosecution‘s strongest witness.  And as they bring in evidence of other incidents, at some point I think we‘re going to reach a tipping point and as you say, even though the jury is going to be instructed that they can only consider this evidence for a limited purpose, the tendency is to think that where there‘s smoke there‘s fire.

ABRAMS:  Mike is it fair to say that he was—I mean he was crying on the stand at times.  Was he—is it fair to say he was a stronger witness than the actual accuser in this case? 

TAIBBI:  Most observers who have been following the case would say that that‘s the case, Dan.  But let me introduce a term that I‘m not sure anybody is ever going to use in this case, the snowball effect.  Don‘t forget all of this happened at a time when child sexual abuse and cases about it were snowballing around the country.  In California, I‘m sure Craig and Ron are more familiar than I am with the McMartin preschool case, when over 350 children were determined in interviews to have been sexually abused.  It turned out when the trial was over none of them had been abused.

There was a snowball effect...

ABRAMS:  Yes.

TAIBBI:  ... Michael Jackson from the time of the first allegation.  Now whether they‘re true or not, people were going to the tabloids, they were going to tabloid television shows, to “The National Enquirer”.  They were lawyering up.  They were trying to see what they could get and I think that‘s a point Mesereau is trying to make.  The jury is going to be invited to consider whether that snowball effect was one of the things that was happening back then or whether Michael Jackson in his career is a child molester allegedly...

ABRAMS:  Yes.

TAIBBI:  ... was in full swing at that point.  But that‘s what we‘re really looking at here. 

ABRAMS:  Yes.  All right...

RICHARDS:  And Dan, this prior testimony didn‘t lead to a conviction of Michael Jackson. 

(CROSSTALK)

RICHARDS:  This is just a prior allegation...

ABRAMS:  I know.

RICHARDS:  ... which settled before a lawsuit was even...

ABRAMS:  I understand.  But either...

(CROSSTALK)

ABRAMS:  But either he‘s believable or he‘s not.  I mean again, I‘m not sitting in the courtroom, Mike is, and Mike is saying, you know look, it can cut both ways.  But you can throw all this sort of like oh he wasn‘t convicted, he wasn‘t this, he‘s either believable or he‘s not, period. 

TAIBBI:  I‘ll tell you one thing...

(CROSSTALK)

TAIBBI:  Dan...

ABRAMS:  Very quickly Mike.  I‘ve got to take a break.

TAIBBI:  One prediction. My guess is this evidence is so strong that it tips toward Michael Jackson having to take the stand in his defense. 

ABRAMS:  Yes.

TAIBBI:  We have heard from sources that he wants to do that, that he‘s prepared to do that and that he‘s able to do that.  He may have to in this case...

ABRAMS:  Yes.

TAIBBI:  ... to answer the power of this evidence.

ABRAMS:  Yes, they always—as you know, Mike, they always say oh my client wants to take the—he‘s basically trying to run me over...

(CROSSTALK)

ABRAMS:  ... to let me take the stand.  Every case we cover they claim that.  Even O.J. supposedly was ready to run over Johnnie Cochran.  All right, take a quick break...

(CROSSTALK)

ABRAMS:  We‘re going to come right back.  We‘ve got more—the mother took the stand as well today, of this boy.  We‘ll talk about how that—this is big.  This is really big stuff in the Jackson case today.  I think we‘re going to look back. 

Anyway.  All right.  Texas Senator John Cornyn says recent violence against judges could be the result of anger over so-called judicial activism.  What kind of link is that? 

Plus, poor Martha Stewart.  Her lawyers say she just can‘t help out her company if she can only leave her house for 48 hours a week.  They say it‘s time to end her house arrest four months early. 

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 just heard it.  The testimony in the Michael Jackson case so powerful that it could force Michael Jackson to take the stand.  We‘ll talk about it coming up.

(COMMERCIAL BREAK)

(NEWS BREAK)

(BEGIN VIDEO CLIP)

THOMAS MESEREAU, MICHAEL JACKSON‘S ATTORNEY:  Michael Jackson now regrets making these payments.  Nevertheless, these efforts to settle are now being used against him regardless of the merits or the truth behind them.  These settlements were entered into with one primary condition—that condition was that Mr. Jackson never admitted any wrongdoing.  Mr.  Jackson always denied doing anything wrong. 

(END VIDEO CLIP)

ABRAMS:  Well, Tom Mesereau there when he was talking about one of the boys who‘s been on the witness stand and finished up his testimony today.  And most people saying it was very powerful testimony.  He said and I quote, talking about Michael Jackson. 

“He started tickling me, which is cool because I was a ticklish guy—he‘s talking about when he was 7 -- I tickled him back and somehow we got on the floor tickling still.  Then I‘m tickling and he‘s tickling.  Then it eventually moved down to my little private region.  I don‘t know what you want me to call it, my crotch area, but I was laughing. 

How did it feel? 

At 7 I probably thought it was weird, but not super weird because it was tickling.”

All right.  So Craig Smith, everyone seems to agree that the testimony is powerful.  How powerful is the subject for debate.  Do you think this is going to force Michael Jackson to testify? 

SMITH:  It may very well.  You know, the best defense in any criminal case is one that‘s consistent with the proven facts.  And in a child molestation case, that‘s very problematical.  Unlike a rape case, there is no defense that the victim consented or I didn‘t realize that the victim was resisting.  Here it either happened or it didn‘t happen. 

So if the jury believes it happened, the only person who can possibly explain that there was some innocent state of mind would be Michael Jackson.  In other words, if they prove it happened, it‘s pretty much presumed that these touchings occurred for the purposes of gratifying the sexual pleasures of Michael Jackson...

ABRAMS:  Yes.

SMITH:  ... or of the victim and so...

ABRAMS:  All right.  But Ron Richards, let‘s come back to the question, which is does Michael Jackson have to testify?  I mean look, you know Tom Mesereau.  Tom Mesereau certainly implied at the outset of this case that—and I don‘t think he said it as some suggest he did, I think he suggested that Michael Jackson would testify.  Do you think that “A”, is Michael Jackson being forced to testify now?  And “B”, is he going to testify?

RICHARDS:  Well, I don‘t think anybody could force a defendant to testify, as we know.  I think you have to really wait until the rest of the witnesses are called; the defense puts on their entire case, which I will tell you, Dan, is a very involved case.  And then they‘re going to have to make that decision.  I think he wants to put them on.  I think he wants to testify...

ABRAMS:  Yes, yes, yes...

RICHARDS:  ... but look, if they haven‘t proven their case beyond a reasonable doubt, why should he testify...

ABRAMS:  No, I agree.  I agree...

(CROSSTALK)

ABRAMS:  If they haven‘t proven the case, there‘s no reason to risk it.  And let‘s be clear, Michael Jackson is a risky defendant to put on the witness stand.  You would agree with that, Ron, right? 

RICHARDS:  I agree.

ABRAMS:  Yes.

RICHARDS:  I agree with you 100 percent.  That could go south real quick.  As Leslie Abramson said, the road to state prison is paved with defendants testifying.  And I think that‘s a very tough decision and I don‘t want to make that decision and I‘m glad I‘m not...

ABRAMS:  Remember that civil lawsuit where Jackson—we do have it—

can we put that picture up?  There it is.  That‘s Michael Jackson

testifying during the civil case.  That‘s during a civil case that he was -

·         where he was being accused of backing out on some concerts, et cetera.

RICHARDS:  There‘s more client control now though.

ABRAMS:  Yes, I certainly hope so. 

(CROSSTALK)

ABRAMS:  Mike Taibbi, give us a sense of what else happened.  The mother of the boy testified today as well, right? 

TAIBBI:  Yes, she did.  She‘s a woman who is a Salvadorian woman who worked for Jackson for four or five years, somewhere in that range, and she not only supported her son and corroborated some aspects of his story, claiming that she saw him sitting in Michael Jackson‘s lap to the point where it made her uncomfortable.  She added her own observations, claiming that among other things, we‘re not going to name all these other alleged victims because that‘s what this 1108 evidence is about, that she saw McCauley Culkin, for example, staying in Michael Jackson‘s bedroom and another entertainer, whose name we won‘t use, staying many times with Michael Jackson, claims she saw Michael Jackson in the shower with someone else and in the (UNINTELLIGIBLE) shadow of someone, et cetera.

And here is where Mesereau did make some end roads.  He got her to admit—the mother to admit that three times her wages had been garnished, that she had stolen things, taken things without permission from Michael Jackson, watches, other trinkets, and samples, as she described them.  That she had been in trouble with the IRS, that she owed stores around town money, that she had gone into a co-worker‘s purse without permission to take a look at her paycheck to see how much she was making, and that she had other problems, et cetera, et cetera, at the time this so-called snowball effect of cases and claims and accusations against Michael Jackson were all bursting in 1993 and she got lawyered up at that point.  She talked to Larry Feldman...

(CROSSTALK)

TAIBBI:  ... Mesereau trying to bring that in and he did make some points with her in that regard.  But she stuck to her story just as her son had stuck to his story.

ABRAMS:  Yes.  All right.  This is trouble for Michael Jackson, ladies and gentlemen...

(CROSSTALK)

ABRAMS:  Don‘t underestimate this.  This is big...

RICHARDS:  What kind of woman sells her story to “Hard Copy” though? 

I mean what kind of woman is this...

ABRAMS:  A woman looking to make money. 

UNIDENTIFIED MALE:  A poor woman...

ABRAMS:  Yes and...

UNIDENTIFIED MALE:  A poor woman...

(CROSSTALK)

SMITH:  ... including a photograph from “Hard Copy”.  That was more than she was making working a year at Michael Jackson‘s ranch...

UNIDENTIFIED MALE:  Yes, but most...

(CROSSTALK)

ABRAMS:  Let me tell you something Ron.  Let me tell you something Ron.

RICHARDS:  Yes.

ABRAMS:  If I had a story to tell, right, if someone comes to me, they say look I got a great story, I‘d say first of all do the interview with me.  And if they say, I don‘t want to do the interview with you.  I‘d say all right, you know what?  Get someone to pay you for it then because why not?  I mean if you‘ve got a story to tell, why not? 

RICHARDS:  Because Dan, most mothers and I believe you have great parents yourself would not sell your victimization to a tabloid journalist.  I don‘t believe...

(CROSSTALK)

TAIBBI:  Actually Ron, it‘s more than that. 

(CROSSTALK)

TAIBBI:  It‘s actually more than that.  She not only sold her story, she sold a photograph of Michael Jackson and her son...

ABRAMS:  Yes.

TAIBBI:  ... because she said on the stand today she didn‘t think anybody would...

ABRAMS:  He was—what he was 13 or something when she sold the story.  I mean so what...

(CROSSTALK)

ABRAMS:  ... was he part of the negotiating...

SMITH:  The story wasn‘t that...

ABRAMS:  Was he part of the negotiating...

SMITH:  The story wasn‘t that...

TAIBBI:  No...

SMITH:  The story wasn‘t that my son was molested by Michael Jackson. 

The story was...

UNIDENTIFIED MALE:  Correct.

SMITH:  ... this is what it‘s like to be a maid at the Michael—at the Neverland ranch and this is what I‘ve seen Michael Jackson do with other children. 

ABRAMS:  Right.

SMITH:  That was the story that she sold. 

ABRAMS:  All right.  Mike Taibbi, Craig Smith, Ron Richards, thanks a lot.  Big, big day...

UNIDENTIFIED MALE:  Thank you.

UNIDENTIFIED MALE:  You‘re welcome.

ABRAMS:  ... Mike is staying there.  We‘re going to be following the story. 

Coming up, Martha Stewart under house arrest but she still gets to leave home 48 hours a week.  The lawyers say it‘s not enough.  Her company needs her much more than that and they want her house arrest ended.  That‘s really going to be the legal argument that‘s going to win? 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Martha Stewart wants to get out of her oh so difficult house arrest early so she can help her company.  That‘s what her lawyers are arguing, really. 

And one U.S. senator appears to link recent violence against judges with frustration over judicial activism.  Is that insulting to the innocent victims who are serving the public?

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 U.S. senator links attacks on judges to judicial activism.  Coming up. 

(NEWS BREAK)

ABRAMS:  We‘re back.  I got to admit.  I was shocked by recent remarks from Senator John Cornyn, a Republican from Texas, who seemed to be placing blame on our nation‘s judges for the most recent courthouse violence.  In February, a man shot and killed the mother and husband of a federal judge in Chicago who ruled against him in a medical malpractice suit.  Last month in Atlanta, a man broke away from a deputy, stole her gun, fatally shot four people including the judge presiding over his rape trial. 

Now while the senator did not cite specific examples of violence against judges, he did say this.

(BEGIN VIDEO CLIP)

SEN. JOHN CORNYN ®, TEXAS:  We seem to have run through a spate of courthouse violence recently that‘s been on the news, and I wonder whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in violence. 

(END VIDEO CLIP)

ABRAMS:  “My Take”—of all the political grandstanding, this ingenious argument is rhetoric I‘ve heard about judges and judicial activism.  This by far is the most reprehensible and downright dangerous I have ever heard.  I think he‘s subtly using the killing of a judge in Atlanta, the killing of a judge‘s family in Illinois to bolster a completely unrelated political agenda.  These judges work hard and judges around the country I think deserve better from the U.S senator.

Joining me now is Congressman John Culberson, a Republican from Texas.  Congressman, thanks very much for coming on the program.  Do you think I have this one wrong?

REP. JOHN CULBERSON ®, TEXAS:  Absolutely.  I think you‘ve pulled John Cornyn‘s comment out of context.  John Cornyn is a man of great honor and integrity.  He is a judge, served as a Texas Supreme Court judge, an appellate court for many years, justice.  He understands that the—how important it is to maintain the integrity of the judiciary and respect for the rule of law.  That quote is taken out of context...

ABRAMS:  How is it taken out of—I mean I looked at the whole context of it and the bottom line is he‘s saying—all he said before that is, he‘s saying that he can‘t necessarily say there‘s any cause and effect, and then he went on to say exactly what I just played a tape of. 

CULBERSON:  Right.  No, John Cornyn, again, respects the judiciary because he is a judge and he understands the importance of the rule of law.  He is expressing overall in that speech the frustration that a lot of Americans feel that the federal judiciary is completely immune to public opinion; they‘re completely immune from being accountable to anybody. 

My hero, Thomas Jefferson, said judges advance on noiseless steps like gravity, never yielding what they‘ve gained.  And that they had retreated to the bunkers of the judiciary in an effort to consolidate power in the judiciary and we‘ve seen that.  I think that Congress needs to take more steps to restore the accountability of judges. 

I‘m a member of a group of congressmen in the House who are working to pass legislation to make judges more accountable by limiting or controlling their jurisdiction, their ability to enforce orders.  I‘ll be filing a constitutional amendment with the support of a lot of other members to give state legislators the right to approve federal district judges every 10 years. 

ABRAMS:  But isn‘t that so self-serving?  Because basically what you guys are saying is you want more power.  You‘re saying hey, we don‘t want judges examining the constitutionality of what we pass, we just want to—we want to go unchecked. 

CULBERSON:  The genius of the founding fathers‘ Constitution was that it left control over our government in the hands of we the people.  Judges are immune.  They are absolutely unaccountable and we think, I believe very strongly as I know John Cornyn does, that judges need to respect the laws that the Congress passes.  Our president believes judges should interpret the law, not make the law.  So my point is simply is I know that Senator Cornyn believes, as most Republicans believe, judges should interpret the law and not make law. 

ABRAMS:  Fair enough...

CULBERSON:  Judges should absolutely follow the law passed by Congress.  The people rule here and the laws that we pass on behalf of the country, judges should respect and follow.

ABRAMS:  But it sounds like you‘re saying that they‘re a lesser branch of government.  It sounds like what you‘re saying...

(CROSSTALK)

ABRAMS:  ... it‘s sort of along the lines of what we heard in the Terri Schiavo case, which was this notion that somehow that Congress ordered the courts to do X, Y, or Z.  I mean Congress can make laws but they can‘t order the courts to do anything. 

CULBERSON:  Well the problem here is the judges in this country have elevated themselves to essentially an oligarchy.  We have a judicial oligarchy in this country that is immune completely not only from accountability to the public, but from...

ABRAMS:  But isn‘t that what they‘re suppose to be...

CULBERSON:  ... accountability to the people...

ABRAMS:  But aren‘t they supposed to be...

CULBERSON:  No, not at all.  The founders...

ABRAMS:  Let me just ask the question.  I‘ll let you respond.

CULBERSON:  Sure.

ABRAMS:  But aren‘t they supposed to be immune from public opinion? 

CULBERSON:  Judges are supposed to be interpreters of the law.  Their responsibility as Alexander Hamilton said, the president holds the sword, the Congress holds the purse, and the judiciary in Hamilton‘s opinion essentially had no power whatsoever.  He considered them the weakest branch because all they could do is interpret the law.  And over the years as a result of the not only the War Between the States, but reconstruction, the new deal, all powers become concentrated...

ABRAMS:  But wait...

CULBERSON:  ... of the judges...

ABRAMS:  ... they should or they shouldn‘t be responding to public opinion? 

CULBERSON:  I think judges have an obligation to respect the law passed by Congress, the people‘s representatives, debate, and then pass legislation that the judiciary is obligated to honor and obey...

ABRAMS:  So they should just...

CULBERSON:  ... unless...

ABRAMS:  ... they should approve it all?  They should approve it all?

CULBERSON:  ... unless there‘s a specific violation of a very specific provision of the Constitution and that power is left up to the Supreme Court alone.  When it comes to district judges, the appellate courts, all of those judges draw their existence, their power and authority from the United States Congress period. 

ABRAMS:  Let me come back to one issue and this is about Senator Cornyn‘s comment specifically.  I mean I understand the argument about judicial activism and I think a lot of the points that you make are probably echoed by many in this country.  But the problem is when you start linking—he was linking violence against judges to judicial activism.  There‘s no other way to look at it. 

CULBERSON:  No.  John Cornyn is a man of integrity and who respects the law...

ABRAMS:  But he shouldn‘t have done it.  It was a mistake, right?

CULBERSON:  John Cornyn is absolutely not advocating or endorsing or condoning...

(CROSSTALK)

CULBERSON:  ... violence...

ABRAMS:  I agree...

(CROSSTALK)

ABRAMS:  No, let me clear...

(CROSSTALK)

ABRAMS:  ... I am in no way suggesting that, and let me be quite clear about that.  But I am saying that he seems to be saying that the frustration of the people in this country is boiling so much that violence is the necessary result of judicial activism...

CULBERSON:  Yes, I think that‘s a real stretch.  Because John Cornyn is not—would never suggest—none of us would ever suggest—we can do things like, for example, I‘m going to again be filing a constitutional amendment that puts a 10-year term limit on federal district judges and lets the states‘ legislators then vote to reaffirm those federal district judges in their states. 

We can pass a variety of other laws that limit the authority of judges.  I actually sued Federal Judge William Wayne, justice in Texas who had run our prisons for 30 years, but I had to pass a state law and then help write a federal law, and then I sued the judge in his own courtroom, and I won.  I won back Texas‘ 10th Amendment sovereign power to run our prisons free from the courts. 

ABRAMS:  Let me...

CULBERSON:  So there are ways to do this...

ABRAMS:  Let me...

CULBERSON:  ... legally by the books. 

ABRAMS:  ... play one more bite from the senator...

CULBERSON:  Sure.

ABRAMS:  I‘m going to ask you one more question.  Let‘s listen.

(BEGIN VIDEO CLIP)

CORNYN:  I believe this increasing politicalization of the judicial decision making process at the highest levels of our judiciary have bred a lack of respect for some of the people that wear the robe and that is a national tragedy. 

(END VIDEO CLIP)

ABRAMS:  That‘s not as controversial as the other comment, but let me ask you this.  Isn‘t it people, though, like Senator Cornyn and yourself who are breeding disrespect to the judiciary? 

CULBERSON:  Oh not at all.  If we weren‘t doing—we would not be doing our job as the people‘s elected representatives if we did not speak out against judicial activism.  Judges who ignore the laws that the Congress passes, our system of checks and balances in this country has been largely lost.  If judges can change the law by majority opinion and—excuse me, if the Supreme Court and judges by majority opinion can rewrite the Constitution, I think that‘s destructive of our system of government. 

You wonder why we haven‘t had any constitutional amendments in so many years, I think it‘s because the United States Supreme Court and our judiciary have taken it upon themselves to just simply amend the Constitution by a majority opinion.  And that is wrong and the Congress and the people need to pass laws.  We need I think all of us working with state legislators, the Congress and the state legislators through the legal process passing statutes...

ABRAMS:  Well...

CULBERSON:  ... through litigation and finally through a constitutional amendment such as the one I‘m proposing...

ABRAMS:  Yes.

CULBERSON:  ... to limit the power of judges and make them accountable... 

ABRAMS:  Look...

CULBERSON:  ... and responsible.

ABRAMS:  ... I say you want to appoint more conservative judges, go for it...

CULBERSON:  You bet.

ABRAMS:  ... but the...

CULBERSON:  ... the Democrats and Ted Kennedy...

ABRAMS:  ... go for it, but the idea of the Congress getting involved in trying to restrict any judge‘s power, I don‘t care what their belief is, et cetera, I think is so dangerous.  But...

CULBERSON:  Well the president...

ABRAMS:  ... final 20 seconds...

CULBERSON:  ... I‘d say President Bush, the Congress, the people have spoken.  They want our president to be able to point to judges who reflect his will, and that is interpret and don‘t make law from the bench and the Senate needs to approve the president‘s judges and the judges need to respect the laws we pass. 

ABRAMS:  Congressman Culberson, thanks a lot...

CULBERSON:  Thank you very much.

ABRAMS:  ... for coming on the program.  I appreciate it.

Coming up, Martha Stewart wants to end her house arrest early because it‘s in her company‘s best interest.  That‘s the argument, I swear. 

And Peter Jennings diagnosed with lung cancer.  Many of you know about my battle with cancer.  It is the subject of tonight‘s “Closing Argument.”

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  One month into her five months of house arrest and a month after her release from a federal prison in West Virginia, Martha Stewart‘s lawyers are saying she‘s paid her dues and asking a judge to effectively end her house arrest.  They argue that only allowing Martha to leave her house for 48 hours per week is—quote—“plainly insufficient to meet the needs of the company.  While Mrs. Stewart can work remotely via e-mail and telephone, her unique talents and physical presence are critical to the conduct of Martha Stewart Living Omnimedia business.” 

And it‘s not only the company headquarters that need Martha‘s time, Mark Burnett and NBC need it too.  Martha‘s lawyers claim that being under house arrest is preventing her from producing two new reality series, one of which is a new addition to “The Apprentice” and that‘s also hurting her company. 

The lawyers say—quote—“Ms. Stewart‘s ability to participate fully in the production of the two television shows is critical to Martha Stewart Living Omnimedia‘s revitalization strategy and is not as the government suggests a personal whim or indulgence.”

What judge is going to reduce Martha‘s sentence because her company says it needs her, because she needs more time to shoot her TV shows?  “My Take”—not only is this a nonstarter legally, I think it‘s a bad P.R.  move as well.  This is exactly what she does not need the perception to be, that she‘s treated differently. 

I said many times I believe that she would never have been charged if she was not Martha Stewart, but that I thought a jury clearly did the right thing finding her guilty.  Her sentence was fair.  I don‘t fault her lawyers for trying, but come on. 

Joining me now, former federal prosecutor Aitan Goelman and Joel Androphy, a white-collar criminal defense attorney.  Joel, you really think that this motion has legitimacy? 

JOEL ANDROPHY, CRIMINAL DEFENSE ATTORNEY:  Oh I don‘t think she‘s getting preferential treatment.  It‘s a twisted sense of priorities for the prosecutor to suggest that you have to punish her by making her work less.  I think it‘s admirable that she wants to go out and work 80 hours a week.  That sends a lot stronger message to our society than someone that would be satisfied and content to work merely 48 hours a week, which is really unusual in the private sector. 

(CROSSTALK)

ANDROPHY:  It may be normal in the government to work 48 hours a week, but not for what Martha Stewart does and not for what most of us.  I haven‘t worked 48 hours a week...

ABRAMS:  Right.

ANDROPHY:  ... in the last 20 years. 

ABRAMS:  Were you on—were you sentenced to home detention for any part of that 20 years?

ANDROPHY:  No I wasn‘t, not yet. 

ABRAMS:  OK.  All right. 

ANDROPHY:  Maybe at home I was with my wife...

ABRAMS:  Yes.

ANDROPHY:  ... but as a practical matter, the purpose of home detention is to allow somebody to go home, live a normal life and go to work.  And not to party, not to play, and she wants to work more.  She wants to go out there and put in 80 hours a week.  How do you discourage that?  How do you tell citizens of the United States that no, we need to punish her by saying to her don‘t go to the office. 

ABRAMS:  Aitan, I thought this was a criminal sentence.  I mean Joel is making it sound like this is sort of an optional kind of thing.  We want to get her to go to—this is a criminal sentence.

AITAN GOELMAN, FORMER FEDERAL PROSECUTOR:  Yes, I think that a lot of the things that Martha Stewart is complaining about now go under the category of convenience, not any kind of real hardship.  I mean one of the things she complains about is that she doesn‘t like wearing skirts and dresses on TV if she‘s wearing an ankle bracelet for electronic monitoring.  That‘s not exactly you know hard time or breaking big rocks into little rocks, little rocks into sand.  Look, Walter Dellinger is a terrific advocate and...

ABRAMS:  And a great guy. 

GOELMAN:  And a great guy.  And if they get a hearing here, I mean the guy has a history of winning cases that he has no business winning.  The problem for him is that Judge Cedarbaum can deny this motion without a hearing.  What she‘s got to look at now...

ABRAMS:  This is not going to get a hearing... 

GOELMAN:  I mean what she‘s got to look at under the Supreme Court decision in Booker and the Second Circuit decision in Crosby is whether she would have imposed a materially different sentence if she had known that the guidelines weren‘t mandatory.  And the problem for them is even if she would have imposed a materially different sentence, it probably just would have been no time. 

It wouldn‘t have been well she gets, you know, she gets four months home detention instead of five months or—and the number of hours per week that‘s a condition of supervised release that she has to stay in her, you know, estate in Turkey Hill, that wouldn‘t have been part of the guideline sentence anyway.

ABRAMS:  Fine.  They want to make a legal argument based on a new Supreme Court ruling, fine, they should do that.  But the notion that somehow—there‘s no question that this is saying Martha Stewart should be treated differently.  Let me read you—this is a letter that was included in this from the president and CEO of Martha Stewart Living Omnimedia. 

“As currently enforced, every moment Ms. Stewart spends outside the front door of her residence, counts towards those 48 hours.  Once you factor in the travel time to and from Manhattan—of course from her home in Bedford—and the hours Ms. Stewart needs for doctor and dentist appointments, shopping for essentials, checking in with her 90-year-old mother in Westport, Connecticut, and attending church services there‘s not enough time to fulfill even the basic commitments we‘ve made on Ms.  Stewart‘s behalf.”

I mean let‘s admit it, Joel, this is basically saying Martha Stewart should be treated differently because she‘s Martha Stewart. 

ANDROPHY:  No, Dan.  Most people that are on house arrest get an opportunity to work as long as they want to work and most people on house arrest don‘t wear ankle bracelets.  Where is she going?  Why does she need an ankle bracelet?  She‘s not leaving the country...

ABRAMS:  That‘s not true...

(CROSSTALK)

ABRAMS:  Aitan...

(CROSSTALK)

ABRAMS:  Aitan, that‘s not true...

GOELMAN:  No, usually...

(CROSSTALK)

GOELMAN:  ... electronic monitoring is a condition of supervised release...

ANDROPHY:  Oh no, I disagree with that. 

GOELMAN:  ... 48 hours is absolutely standard.  I think Dan you‘re exactly right.  If you say, well, she‘s a busy, you know, CEO and she‘s a television star...

ANDROPHY:  No.

GOELMAN:  ... so she needs 80 hours, that‘s a dangerous message to send. 

ANDROPHY:  It‘s not standard.  In my experience, if you want to work longer, judges let you work longer.  They‘re not going to deprive someone of the opportunity to go out and make a living.  Remember, she‘s going out and making a living for herself, she‘s going on acting behalf of shareholders, employees of her company who want her to work...

GOELMAN:  That argument...

(CROSSTALK)

GOELMAN:  ... the third party damage argument, I got to think that Judge Cedarbaum is going to start to get tired of hearing it.  I mean the last time she heard it, it was Martha Stewart Living Omnimedia was going to fold if she went to prison and you know since then the stock has what, tripled.  So I find it very difficult to believe that Judge Cedarbaum is going to think that there‘s going to be widespread layoffs if, you know, Martha Stewart has to spend some time on the telephone instead of being there in person. 

ABRAMS:  Joel gets the final word.

ANDROPHY:  If her name wasn‘t Martha Stewart, she‘d be—she would have an ankle bracelet and she‘d be permitted to work 80 hours a week and we wouldn‘t be having this conversation. 

ABRAMS:  No, she wouldn‘t.  Aitan, Joel Androphy, thanks a lot. 

Appreciate it.

GOELMAN:  Thanks Dan.

ABRAMS:  Coming up, ABC newsman Peter Jennings announces he‘s suffering from lung cancer.  My thoughts as a cancer survivor.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, it was announced today that ABC newsman Peter Jennings is suffering from lung cancer.  My thoughts and my “Closing Argument”...

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—the news today that ABC newsman Peter Jennings is suffering from lung cancer.  That explains why he hasn‘t been on the air in recent weeks on the big stories we‘ve all grown so accustomed to watching him cover so eloquently for the past two decades, especially on breaking stories like, of course, the pope‘s death.  Jennings absence from ABC‘s air was conspicuous. 

I don‘t know Peter Jennings.  I probably met him once.  Nevertheless, the news struck me in a very personal way.  I know what it‘s like to host a daily news show and to suddenly learn you have cancer.  You have to assess what you can and get can‘t away with while remaining on the air or at least trying to do so. 

And while I had to have two rounds of surgery, Jennings will begin debilitating chemotherapy which I was so lucky to avoid.  He will endure challenges I have never known.  He sent out a personal e-mail to ABC employees telling them he would continue to try and come to work as he undergoes chemo, but wrote that there would be—quote—“good days and bad, which mean some days I may be cranky and some days really cranky.”  It‘s going to be a rough period for him, but from what I know and hear about Jennings, he‘ll persevere and he‘ll end—we‘ll end up seeing him on the air probably more than the doctors might like.

I remember I came back to work probably a week too early looking emaciated but determined to have the show go on.  Peter Jennings, good luck.  I admired you before and I‘m guessing I‘ll come to admire you even more. 

Coming up in 60 seconds, your e-mails on the Terri Schiavo story.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  I‘ve had my say, now it‘s time for “Your Rebuttal”.  Since we were preempted for coverage of the pope‘s death, your e-mails on my tribute to Terri Schiavo, the woman from before her brain damage—now remember I was basically saying that I thought a lot of the people who were speaking for her, I was concerned weren‘t thinking of the woman and instead were just talking about a person who was brain damaged. 

Cindy Howard writes, “Thank you for telling Terri‘s story.  Many have taken the stance of who she was during the last 15 years, not the woman that she was prior to that fateful night.  Her story has inspired me.”

Denise Wallace, “Amidst all the dark and dreary spectacles it was nice to read something uplifting, light and worthy of her memory and her beauty as a human being who existed on this earth who made a lot of people smile and happy and probably a difference in a few lives during her brief stay here.”

Jane Reichart, “Thank you for honoring this woman who was unfortunately made an object in the eyes of so many on both sides of this issue.  You treated her with more dignity and respect than any well meaning spiritual leader, medical expert, or member of the media I‘ve seen to date.”  Thanks Jane.

But George Mitchell on the other side.  “I think it‘s just unbelievable what you titled your piece of drivel.  It‘s not like you knew her or even put much thought into her case.”

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

“OH PLEAs!”—a woman in Richmond, Virginia returns home from vacation with a cleaned out and cleaned up apartment.  When the Chesterfield County resident opened the door to her apartment, she noticed her TV, computer and other items were missing.  She had been robbed.  But it seems the thief decided to offer something in exchange for the items he made off with (UNINTELLIGIBLE). 

The suspect decided to do some chores around the apartment before escaping with the stolen loot.  The burglar washed and dried the dishes, as well as doing the laundry, even closed and locked a rear door that the resident actually left open.  Police think this housecleaning thief may have known the woman was away for a while and took up residence at the apartment, but just couldn‘t deal with the mess.  It seems the thoughtful thief left the apartment spic and span but without those crucial items leaving one to believe, the burglar decided to do a little spring-cleaning. 

That does it for us tonight.  Up next, “HARDBALL” with Chris Matthews.  He‘s live from the Vatican tonight.  Thanks for watching.  See you tomorrow.

END

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