updated 4/13/2005 12:27:42 PM ET 2005-04-13T16:27:42

Guest:  Daniel Horowitz, Paul Pfingst, Jim Studer, David Fermino, Ray Mendoza, Floyd Abrams

DAN ABRAMS, HOST:  Coming up, police take down a man after a standoff at the U.S. Capitol. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  He had two suitcases, refused to move from in front of the Capitol, one of the suitcases blown up after he wouldn‘t say what was inside. 

And more dramatic testimony in the Michael Jackson trial, the mother of a boy who says Jackson molested him tells jurors Jackson begged her to let Jackson sleep in bed with the 13-year-old boy. 

Plus, I go one on one with this country‘s greatest First Amendment lawyer -

·         my dad.  He‘s written his first book. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket, a few hours ago there was a stunning episode at the Capitol building in Washington.  A lone man dressed in black was standing in front of the west side of the building, two carry-on suitcases within reach at either side.  Police approached him.  He said he wanted to speak to the president and no one else, just the president of the U.S.

Obviously fearing he might be a suicide bomber, Capitol police rushed him, knocked him to the ground, dragged him off, treated him for his minor wounds, and questioned him.  Not long after, one of the man‘s suitcases was blown up after he refused to provide information and it appeared to contain batteries with a device with wires. 

NBC‘s Mike Viqueira joins us from the Capitol now.  So, Mike, what led them to blow up that suitcase?  Was it the fact they saw something inside or that he wouldn‘t talk?

MIKE VIQUEIRA, NBC NEWS CORRESPONDENT:  Well, after they took him down and they grabbed his arms and legs and dragged him off, they decided to send a man in one of these moon suits, in one of these chem-biohazard suits over to take some pictures of the bag.  They took a picture of the first bag—and when I say a picture, I‘m talking about an X-ray picture.  They brought it back.  It takes about 20 minutes for that to be developed. 

They developed it and it appeared to have nothing inside of it, the bag, no potentially dangerous materials that they could see.  Then they went back and they X-rayed the second bag.  Now that bag had some wires in it, what police described as a timing device, and what police also described as three sticks of something.  They didn‘t know whether it was silly putty, dynamite, what it was.  Now at that point they decided that they needed to do something about that bag, so they used what‘s called a water jet disrupter.  They essentially fired a very high-pressure stream of water at it.  Now it looks like it was detonated by some sort of explosive device, I am told that, no, it was a water jet destructor that sent this thing scurrying across the plaza as we see in these pictures here.  Then the police opened up the bag, they had a look at it, and found that what had got—caused so much concern was actually a C.D. player, Dan. 

ABRAMS:  So Mike, how long was he standing there before the police rushed him? 

VIQUEIRA:  Well about 12:5 5 is when the police first approached him as he stood there on the west front of the Capitol.  This is the west front where the inauguration takes place, where hordes of tourists are gathered this time of the year for the cherry blossom festival.  He was initially non—uncommunicative with the police officers.  This is like 12:55, as I said, and then the standoff ensued.  They cleared the west front of the Capitol, all the tourists were sent away, a very wide perimeter, a circumference of about 200 yards was established.  And then 45 minutes later, it was about 50, 45 minutes I‘d say, those four police officers snuck up from behind him from the west and that one officer very forcefully took him down. 

ABRAMS:  What took so long, though?  I mean are going to say 45 minutes a guy standing there with what potentially could be bombs at his side. 

VIQUEIRA:  Well it‘s very interesting.  Apparently there is a whole checklist, a whole protocol that they go through to determine how they should treat this subject.  Now they determined that the subject was not attached to the bags in anyway.  The bags themselves were not attached to each other. 

That leads them to believe that there was no detonation charge that he could have set off if he saw the police coming.  Remember, of course, there is a wide range of options that they could have taken to deal with this man including we‘re sure, shoot him from a very far distance, from a safe distance.  But they chose to do it this way.  They dragged him off.  As you say, just minor injuries, although the police took him down in a very forceful manner, took him off to be questioned, and as of about 4:30 this afternoon has of yet only charged him with a misdemeanor. 

ABRAMS:  Oh boy.  All right.  Well all‘s well that ends well I guess.  Mike Viqueira thanks a lot. 

VIQUEIRA:  Thank you Dan.

ABRAMS:  Now to more explosive testimony in the Michael Jackson case.  A woman silenced by millions of dollars years ago told her story in public for the first time this afternoon, trying to show Jackson has a history of at least inappropriately touching young boys.  Prosecutors called the mother of Jackson‘s 1993 accuser to the stand. 

She told jurors about her son‘s relationship with Jackson and about how Jackson was shaking and crying as he essentially begged her to let her 13-year-old son sleep in Jackson‘s bed.  The accuser was nowhere to be found today.  He is reported out of the country to avoid being subpoenaed in this case, but NBC‘s Mike Taibbi was in the courtroom. 

So Mike, what is the answer to the question every parent in America is asking—why did she agree to let her son sleep with Jackson in the same bed?

MIKE TAIBBI, NBC NEWS CORRESPONDENT:  Well, I tell you that is the question that has to be hanging over the courtroom today, Dan.  I certainly had it in my own mind as someone who was not steeped in the history of the ‘93 case, as so many reporters on this case are.  You know last week we had this graphic testimony about alleged witness acts of molestation.  This testimony about sleeping arrangements was in a way more disturbing because it wasn‘t challenged. 

This woman, the mother of the ‘93 accuser, said that on perhaps as many as 50 nights in hotel rooms in her own home in Santa Monica, Michael Jackson and her son shared a bedroom -- 50.  I mean 30 in her own apartment, at least four trips to Neverland, a trip to Orlando, a trip to New York, a trip to Monaco...

(CROSSTALK)

TAIBBI:  ... for the music awards.  Four or five nights in each clip, it adds up to about 50 nights.  Now here is what happened.  In a trip to Las Vegas shortly after Jackson met her son, the woman says that they were in Vegas in a fancy hotel that I know and you probably know too, Jackson was trembling and upset and this is the quote “he was sobbing and crying, shaking and trembling.  He said you don‘t trust me.  We‘re a family.  The boy is having fun, why can‘t he sleep in my bed?  There‘s nothing wrong.  There‘s nothing going on.”

And she says on the stand that she answered “this is not anything I want.  This is not right.”  But she admitted that she relented and from that point forward every time Jackson and the boy were together she testified they slept in the same room with the door closed—astounding.  And then in Monaco when he was there to accept an award a few weeks later she said she became concerned.  Both Michael Jackson and her son she said had the flu and they stayed in the room all day and she said the room was boarded up.  I couldn‘t go in there. 

It was starting to get weird.  Things went downhill rather quickly and yet there were still two or three more weeks of Michael Jackson, she said, sleeping in her son‘s bedroom, and that was not challenged by Tom Mesereau, Jackson‘s lead defense attorney.  He didn‘t say on the 30 nights you claim your boy slept in the same room with Michael Jackson.  He said in the 30 nights that Michael Jackson was in the bedroom with your son, and that question is hanging over this—only two explanations, Dan. 

Number one, this is a mother whose values every person on that jury is going to question that she would allow her son to spend time with Michael Jackson and that Michael Jackson did, in fact, molest him which is what the allegation was, or it‘s all about money.  This story is a lie and it is all about money just as Tom Mesereau has successfully, I think, pointed out with other witnesses that their motivation has been primarily money. 

ABRAMS:  Yes.

TAIBBI:  That last witness today said, listen, I wanted to cash in just like everybody else was, a guy who worked for Jackson for four and a half weeks. 

ABRAMS:  Yes and then—mom got a Cartier watch, et cetera.  Mike Taibbi, stick around for a minute because I want to bring...

TAIBBI:  Sure...

ABRAMS:  ... into the conversation here Daniel Horowitz, criminal defense attorney and Paul Pfingst, NBC legal analyst and former San Diego County D.A.  All right.  Daniel, this issue of whether mom should have allowed the boy to sleep in bed with Michael Jackson—look, I think everyone now would say, what parent could let their kid sleep in bed with Michael Jackson for 50 nights?  But does that help her credibility or hurt her credibility?  Meaning, she‘s coming forward and basically admitting something that‘s got to be embarrassing that I‘m letting my kid sleep in bed with Michael Jackson. 

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  Well Dan, I don‘t see that as the key issue.  She is credible.  Of course, Michael Jackson himself told us right at the beginning of this trial on the Bashir tape, I sleep with children.  And this mother just confirmed it, so she‘s credible. 

The only issue where we diverge, the defense from the prosecution, and I‘m arguing for the defense, is were there untoward activities taking place during those sleepovers.  The defense says no, it‘s all about money and exploitation.  And at that point you can question the mother.  What is her motivation?  What mother would let any child with any male adult sleep like she let him do?  So then the money factor, how come she let it happen comes in.  She is not credible for that one part that we don‘t want to hear...

ABRAMS:  But...

HOROWITZ:  ... Michael...

ABRAMS:  But Paul, does that make her not credible?  I mean it almost seems to me—there is an argument to be made it almost enhances her credibility. 

PAUL PFINGST, FORMER SAN DIEGO DISTRICT ATTORNEY:  Yes, no one is going to say she is the mom of the year after doing this, but what struck me, Dan, was the fact that when she confronted Michael Jackson, the reaction of Michael Jackson, which was to cry and break down and beg and plead to continue sleeping this young boy, boy, it‘s hard to make that stuff up.  And if the jury believes that he had such a compulsive need to be with this boy that it caused him to break down and cry and sob and that reaction, that is powerful testimony.  It‘s going to be tough. 

ABRAMS:  What about the fact, though—what about the fact that she got—

I mean this is the family that got $20-plus million in this case.  And mama, you know, got a lot of it.  The kid is still a kid...

PFINGST:  Well the jury...

ABRAMS:  ... when this is being settled. 

(CROSSTALK)

ABRAMS:  Jury doesn‘t know the amount...

PFINGST:  Jury is not going to be told about that...

ABRAMS:  Right.  Jury doesn‘t know the amount, but they can know that there was a settlement.

PFINGST:  They‘ll be told there was a settlement and they won‘t be told how much.  Twenty million dollars would blow their minds, obviously, if they ever heard that.  But when they hear there‘s a settlement, what it tells the jury is that Michael Jackson paid money and that is damaging.  How much money would make it more damaging, but when they hear there is a settlement, what it tells the jury is that Michael Jackson paid money.  And that is damaging.  How much money would make it more damaging, but there is no question that‘s going to damage him. 

ABRAMS:  All right, let me take a quick break here.  When we come back, there was other testimony today in the case.  A guy, a longtime confidant of Michael Jackson was supposed to be this explosive witness for the prosecution seems to have backfired on them. 

And a federal appeals court known as the most liberal in the nation lived up to its reputation tossing out a conviction against a murderer because the victim‘s family wore buttons with his picture on it during the trial.  That was the only reason. 

Plus, my dad‘s great for a lot of reasons, but now there‘s one more reason.  He‘s written a great new book about the First Amendment.  I have got the cable exclusive.  (UNINTELLIGIBLE)

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, what was supposed to be a big witness for the prosecution in the Michael Jackson case, it backfired, coming up.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  A man who was supposed to be a bombshell witness for prosecutors in the Michael Jackson case turned out to be anything but.  Bob Jones, Michael Jackson‘s former publicist, took the stand today.  Court watchers expecting to hear lurid details from the insiders were surprised when Jones said he was unsure of what he actually saw during his years with Jackson.  When questioned by prosecutors, he said one thing; by the defense he said another, seeming to contradict himself repeatedly. 

Mike Taibbi was in the courtroom.  So Mike, was it as bad as it sounds? 

TAIBBI:  Well it was.  You know, Dan, it‘s one of those “Law & Order” moments when the defense attorney played by Sam Waterston says, were you lying then or are you lying now?  And this is the case with this witness and these witnesses as with so many that they‘ve made statements that contradicted their current testimony either in prior sworn testimony or depositions or in prior official statements. 

In this case, the subject, I hate to say this, Dan, was head licking.  And Bob Jones, a longtime publicist for Michael Jackson, claimed in a statement and actually in a chapter of a book he was trying to sell that he says is seven weeks from being finished that he once saw Michael Jackson licking the head of the ‘93 accuser.  And yet in his April 7, that would just be last week—interview with the police, he said to them and Tom Mesereau, Jackson‘s attorney got him to concede that he did, I just don‘t remember, and I‘d be lying if I said I did. 

ABRAMS:  Yes.

TAIBBI:  And so a lot of this morning‘s earliest session was a colloquy among the attorneys, among this witness, and among a subsequent witness, your friend Stacy Brown about whether or not he said that, whether he meant it.  Mesereau ended with a flourish by saying so, when you‘re broke, when this Mr. Jones is broke he says he remembers the head licking and when he doesn‘t need the money, he suddenly doesn‘t remember, is that correct?  And Stacy Brown, an MSNBC analyst says, well you put it that way, but yes is the answer.  What is a jury left to conclude?  I think a wash...

ABRAMS:  Yes.

TAIBBI:  ... that who knows what to believe. 

ABRAMS:  Yes.  And of course, Sam Waterston is the prosecutor in “Law & Order”.  I know that Mike meant to...

TAIBBI:  Yes.

(CROSSTALK)

ABRAMS:  “Law & Order”, I should know...

(CROSSTALK)

ABRAMS:  All right.  So Daniel Horowitz—does it—I mean actually let me ask Paul Pfingst this.  Paul, does it really matter whether Michael Jackson was licking this kid‘s head or not?  I mean it seems to me—did Bob Jones snooker the prosecutors here? 

PFINGST:  Well apparently not.  He had an interview a few days before where he backed up and this has happened to all of us who try cases and you have to make a call.  If this witness is not going to be rock solid in a case like this, don‘t put him on.  Just let him go off to the side...

ABRAMS:  Yes.

PFINGST:  ... go with your next within witness because this is the type of guy who kills you.  Yes, he gives you some good, but the bad outweighs the good.  So they have enough prior evidence of prior acts...

ABRAMS:  Yes.

PFINGST:  ... and prior stuff I don‘t know why this guy saw the courtroom. 

ABRAMS:  Yes.  Daniel, I don‘t know, I mean this whole—licking the head thing they‘re just so obsessed with it.  I know they want to make it sound consistent.  Yes, he licked one person‘s head, he licked somebody else‘s.  You know, this was just a mistake. 

HOROWITZ:  Well Dan, much of their case is based upon character assassination.  They really have so little solid evidence of what happened not 10 years ago, but in the case that‘s in trial right now that they need to batter Michael‘s character.  And they took a risk with this witness because when he wrote an e-mail for a book to his ghostwriter, then he talked about the licking incident, which is in the public record with respect to the accusations in this case.  When it came to testifying in trial, he got cold feet and essentially said if you really get down to it...

(CROSSTALK)

HOROWITZ:  ... I made that up for the book.  And you know what, a lot of witnesses in this case, Dan, have money motive.  Almost all of them attacking Michael have money at the bottom of their testimony. 

ABRAMS:  Well Bob Jones, again, was a longtime friend and he‘s writing a book with Stacy Brown and apparently they have different recollections about what Bob Jones said.  Here‘s what Stacy testified to today.  Again, he is an MSNBC analyst too.

At some time during your collaboration with Mr. Jones, did he ever try to deny his recollections about this licking incident?

Yes, he had fuzzy recollections about it, yes.

So even Stacy is saying that, Paul, so again, it really leads you to ask yourself, what were they doing calling this guy? 

PFINGST:  They really wanted the head licking and they wanted it too much. 

I mean you get a witness...

ABRAMS:  Who doesn‘t want it, you know—anyway go ahead. 

PFINGST:  Just—with a witness like this with this case at this time with all the prior stuff going out there, I think you err on the side of caution with a witness like this because they can kill you. 

ABRAMS:  Yes.  All right.  We shall see.  So it sounds like a sort of a mixed day there at the Jackson case today.  Paul Pfingst, Daniel Horowitz, Mike Taibbi, thanks a lot. 

TAIBBI:  All right.

ABRAMS:  Coming up, a convicted murderer could now go free after an appeals court throws out a conviction.  What horrible mistake precipitated this reversal?  The victim‘s family wore a button with his picture on it to court.  The victim‘s brother joins us next. 

Plus, the Pentagon papers helped bring an end to the Vietnam War.  My dad fought to allow them to be published and he is still fighting the good fight for journalists around the country.  Now he‘s written his first book.  Floyd Abrams -- (UNINTELLIGIBLE) that‘s a long time ago—is my special guest coming up.

(COMMERCIAL BREAK)

ABRAMS:  A convicted murderer now serving a life prison term could be released after a notoriously liberal appeals court found that something the victim‘s family wore to court could have affected the jury‘s decision.  In a 2-1 opinion the Ninth Circuit Court of Appeals found the defendant did not receive a fair trial because the victim‘s family was allowed to sit each day in the front row of the courtroom wearing buttons with a photo of the victim.  No words, just his picture.

A jury convicted Matthew Musladin of first-degree murder for killing Tom Studer after Studer confronted him at his fianc’‘s home.  The two got into a fight.  Studer‘s fianc’ say was also Musladin‘s estranged wife.  He was also convicted of attempting to murder her.

The court wrote quote—“The direct link between the buttons the spectators wearing the buttons, the defendant, and the crime that the defendant allegedly committed was clear and unmistakable.  A reasonable jurist would be compelled to conclude that the buttons worn Studer‘s family members conveyed the message that the defendant was guilty. 

“My Take”—this is absurd.  Next thing you know, courts are going to find that it‘s too prejudicial to have the victim‘s family members sitting in court at all on the prosecution side.  The buttons didn‘t say convict.  Why is it such a miscarriage of justice to allow victim‘s family members an opportunity to wear a small button to remember their loved one?

Joining me now is Jim Studer, brother of Tom Studer, the victim in this case.  Mr. Studer thanks very much for coming on the program.  Let me get this straight.  You didn‘t even know that this court had overturned the conviction in this case until my producers called your family? 

JIM STUDER, HIS BROTHER‘S KILLER COULD GO FREE:  That‘s correct. 

ABRAMS:  Wow.  What was your reaction? 

STUDER:  There were a lot of tears.  They called my sister.  And she was totally shocked.  And then she called me and told me what was happening and it took her a little bit to be able—to even be able to talk to me to tell me what had happened. 

ABRAMS:  And so you and your family did wear these buttons, correct, to court? 

STUDER:  We wore them for, I think, the first two days of the trial.  And we had spoken with the judge and he had given us permission to wear them, said that he didn‘t feel it was an issue.  And after the second day, Mr.  Mendoza I think had talked with us and we kind of decided not to wear them after that. 

ABRAMS:  That‘s your brother, right, that we‘re seeing a picture of, correct? 

STUDER:  Correct. 

ABRAMS:  Yes.  And so you decided not wear them after the first couple of days, but they didn‘t say anything on them, right?  Just a picture of your brother, much like the picture we just saw.

STUDER:  It was exactly the picture that you saw and that was all there was. 

ABRAMS:  And you wear them for two days and you‘re sitting in the front row.  About how big were the buttons?

STUDER:  Oh they‘re about two inch, you know about this big round, about two inches.

ABRAMS:  Let me look at you again.  Show—if you can show us again about how big were the buttons.

STUDER:  About that big around. 

ABRAMS:  OK.  And so you‘re sitting there in the front row and you‘re obviously you know supporting the prosecution in this case.  Tell me why you were so convinced that Musladin was guilty here. 

STUDER:  Well, from all the information that we received during the trial, and all the events that we had heard about, it just—it was very apparent that he had at least been the person who had murdered my brother. 

ABRAMS:  Right.  And there was no question that his bullet killed your brother.  The question in this case was, was it self-defense or not.

STUDER:  Correct. 

ABRAMS:  All right. 

STUDER:  Correct.

ABRAMS:  You know if you can stick around for a minute, because when we come back, I want to talk with the public defender who got Musladin‘s murder conviction overturned and to the prosecutor.  I want to know why they didn‘t tell you, first of all as well, so I‘ve got questions for both sides. 

And if you‘re on the terror watch list, you can‘t get on an airplane, but you can buy a gun.  What is wrong with that picture?  Not a lot say many members of Congress. 

Your e-mails send them to 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 convicted murder could get out of prison because his family—the victim‘s family wore buttons with the victim‘s picture on it to the trial.  We‘re going to talk to his lawyer and the prosecutor trying to keep him behind bars in a minute.

(NEWS BREAK)

ABRAMS:  We‘re back with what I view as a disturbing story, a 10-year-old murder conviction overturned by a federal appeals court.  Matthew Musladin found guilty of first-degree murder and attempted murder, but now in a 2-1 decision, the Ninth Circuit Court of Appeals ruled that Musladin deserves a new trial because the victim‘s family members wore buttons with a picture of their loved one to court.  The court said that could have influenced the jury‘s decision. 

Said it before I‘ll say it again, I think this is insanity.  Joining me now is Matthew Musladin‘s attorney who won the appeal, David Fermino, and Santa Clara County Deputy District Attorney Ray Mendoza who prosecuted the case. 

All right, Mr. Fermino, let me read to you from the dissenting opinion, the one judge who was in the minority here, which reflects my opinion and I want to get your response it. 

It says it is difficult to distinguish this case from the routine situation of a deceased victim‘s family members without buttons sitting as a group in a courtroom during a trial.  Jurors in such a trial surely would recognize the group for what it is.  I mean why is this any different than that? 

DAVID FERMINO, MATTHEW MUSLADIN‘S ATTORNEY:  Well Dan, I think that‘s just the point.  In this is case this was a case with a self-defense theory.  And the buttons convey a message.  They convey a message and the message is this was a peaceful person.  It didn‘t show Tom Studer, with all respect to his family, as the person he was at the time of this offense.

He was using methamphetamine.  This was a group of people who were using a great deal of drugs.  He was on methamphetamine of this—on the day of this crime.  And the picture carried a different message.  It sent a message to the jury...

ABRAMS:  So—let me ask you this.  So then any time a victim in a case is on some sort of drug, that would mean that the victim‘s family members can‘t come in and basically say, we don‘t care what sort of drugs he may or may not have been on, we care that someone killed him. 

FERMINO:  Dan, I don‘t think that‘s the point.  I think family members are welcome to come to court, as is any member of the public.  The issue is are they sending a message to the jury?  And here they are.  And this isn‘t a new concept.  I mean Justice Holmes wrote back in 1915 that any judge who sat with a jury knows that despite formality, they will be influenced by outside, extraneous influences and here that‘s precisely why you don‘t allow this kind of thing and precisely why it makes for an unfair proceeding.  And I don‘t think this is a political decision.  This is a fairness decision. 

ABRAMS:  Mr. Mendoza, were you stunned?  I got to tell you I was stunned.  I read the opinion.  It stunned me that I read the entirety of the opinion waiting for something more than just the buttons.  I kept thinking, they can‘t just be reversing this just because of the buttons and they did.

RAY MENDOZA, SANTA CLARA CTY CA DEPUTY DISTRICT D.A.:  Well you‘re right they did.  And it was quite shocking to myself and to the family members obviously that this type of situation has happened.  But we have to respect the rule of law in this case and we have to go forward with the process.  I have contacted the attorney general and we will be appealing this to the full panel before the court and hopefully obtaining a reversal of the court‘s decision. 

ABRAMS:  Let me explain to my viewer what that means.  Generally in a case like this, a three-judge panel hears the case.  A prosecutor, like Mr.  Mendoza can ask the entire Ninth Circuit Court of Appeals to review it and say, hey, wait a sec, you may not agree with that small panel and so they‘re hoping that that will change the outcome here.

Let me read—this is number two here.  Let me read—again, this is from the majority of opinion that, again, I find this opinion to be stunning.

The primary issue at Musladin‘s trial was whether it was the defendant or the deceased who was the aggressor.  The buttons essentially argue that Studer was the innocent party and the defendant was necessarily guilty, that the defendant, not Studer, was the initiator of the attack and thus, the perpetrator of a criminal act.

Mr. Mendoza, I don‘t understand why it‘s relevant whether there was a self-defense theory here or not.  What difference could that possibly make in whether family members can wear a button with a picture of their loved one to court? 

MENDOZA:  Well I agree with the dissent in this case.  I think jurors

figure out pretty quickly who is on whose side and I personally don‘t think

·         I disagree with the court‘s assessment of the button situation in court whether it relates to self-defense or some other theory.  The fact is there‘s still a victim in the case and I think the victim as well as the state has a right to a fair trial. 

ABRAMS:  Very quickly Mr. Fermino, so what is the difference?  Why does it matter what the theory of the case was? 

FERMINO:  Well Dan, it‘s like jury nullification.  I would imagine that Mr.  Mendoza wouldn‘t want in a drug case to have family members come in wearing buttons saying family members against mandatory minimum sentences...

ABRAMS:  No, but this didn‘t say anything.  Look, if they want to have pictures of their family member on them, you know what, it‘s not going to lead to a change in the outcome. 

FERMINO:  Well, but again, it goes to—there‘s a direct relationship between the way he was portrayed and the theory of self-defense, and I think that the majority opinion gets that, and I think it‘s right. 

ABRAMS:  Yes I mean—all right.  Mr. Mendoza, very quickly, why is it that you didn‘t tell the family members about this ruling?  We called them up today and we were the first ones to inform them that this conviction was reversed. 

MENDOZA:  I tried contacting the family over the weekend.  Unfortunately, this is an old case and the cases were in our storage.  I just retrieved them this morning and I apologize to the family for not getting to them first and telling them of the court‘s decision.  It was no one‘s fault but mine on that.  There‘s no excuse for that.  We should always be the first ones to contact the family in this situation, and that‘s my responsibility. 

ABRAMS:  All right.  Mr. Studer, final thought on everything you‘re hearing.

STUDER:  I am kind of amazed at what Musladin‘s attorney is saying.  I just

·         I can‘t see that a picture of my brother I would—it just—it amazes me that that would have an influence, whatever the picture might look like.  I couldn‘t imagine putting a picture of my brother in what I think is being portrayed as he was a monster almost.  I can‘t imagine my brother like that in the first place... 

     

ABRAMS:  What do you make of his comment that your brother was on some sort of drugs or anything? 

STUDER:  Well, that was something that was brought out in the trial, but if

·         also if you know the facts of the case, as I see it, it‘s pretty

difficult to put the two together...

ABRAMS:  Yes.

STUDER:  ... and say that it was all self-defense. 

ABRAMS:  Look, he was convicted by a jury and I would expect even the Ninth Circuit Court of Appeals to hear this case again because this one seems like a big, big error to me.  But we shall see. 

David Fermino, Ray Mendoza, and Jim Studer, thank you very much.  I appreciate it. 

MENDOZA:  Thank you. 

STUDER:  Thank you. 

ABRAMS:  Coming up, I go one on one with a lawyer I would call if I get into trouble on this show.  Mr. First Amendment, my dad, Floyd Abrams.  He‘s written his first book. 

Plus, some politicians seem more concerned about unrestricted access to guns than they are to protecting us from terrorism.  It‘s my “Closing Argument”. 

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  It‘s not every son that gets to interview his dad on television, but then again, not everyone has famed attorney Floyd Abrams as a father.  Dad has just written his first book entitled “Speaking Freely” about his 30-plus year career defending First Amendment rights beginning with his first big case, “The New York Times‘” right to public the Pentagon papers during the Vietnam War.  You would think I would have gotten the exclusive, but the “Today Show” beat me to it, so now I only get the cable exclusive with my own father.  What that says about our relationship or this show, who knows. 

Joining me now is my father, First Amendment attorney Floyd Abrams.  Dad, thanks for coming on the show. 

FLOYD ABRAMS, FIRST AMENDMENT ATTORNEY:  Good day. 

ABRAMS:  All right.  So let‘s talk about one of the first things you talk about in your book, which is how you became a First Amendment attorney.  And it is an amazing story that the reason you are where you are is because a big, huge law firm decided that they didn‘t want to represent “The New York Times”.

F. ABRAMS:  Yes, a law firm that had represented “The Times” for over 60 years told them that when the government called and said that “The Times” should stop publishing the so-called Pentagon papers, documents related to how the U.S. got involved in the war in Vietnam, classified documents given by a secret source to “The Times”, the other firm said that it would not represent “The Times”.  And so “The Times” found itself quite literally without a lawyer in the middle of the night. 

ABRAMS:  What do you say to those who would say, you know, that firm deserves credit?  They‘re patriots.  And we hear that even today with this administration.  People saying that you know why is the press always trying to get all this information?  Let the administration be, et cetera. 

F. ABRAMS:  Well, I thought of that often.  And in fact, that firm had told “The Times” that if they went ahead and published, it would violate the Espionage Act, that the publisher, Mr. Solzburger (ph), might go to jail, and they also told “The Times” it was wrong to publish.  It was unpatriotic to publish the Pentagon papers.  So I thought sometimes maybe they did it simply out of their sense of patriotism.  The most recent book written about it, though, says that the attorney general, John Mitchell, had called up their senior partner, the former attorney general of the United States, and asked him or told him not to do it. 

ABRAMS:  But you know that people feel like the press is always trying to push it too far.

F. ABRAMS:  Well the press is generally trying to push it where it can.  The job of the press is to get information and reveal it, except in the most extraordinary circumstances.  The job of any administration, any party, is to do its job to make some material available, but the government keeps secrets, the press exposes them, and that‘s the way it‘s always been. 

ABRAMS:  And sometimes these are important secrets to reveal.  I mean some of this is embarrassing. 

F. ABRAMS:  Sometimes it‘s embarrassing.  Sometimes it makes people look very bad.

ABRAMS:  And it‘ll make them change policy if they don‘t want to change...

F. ABRAMS:  Absolutely.  And remember, too, a lot of the leaks, which come out all the time, come from very knowledgeable, very sophisticated, very highly placed people in the government itself who are trying either to accomplish or frustrate a government policy. 

ABRAMS:  Why do you think people dislike journalists, the media so much right now? 

F. ABRAMS:  I think that people in government always dislike the press. 

President Bush used the word riff-raff last week talking about journalists.  Prince Charles talked about these bloody people.  That‘s old stuff.  What‘s new? 

One thing I think is that we are so polarized as a country now.  People disagree so fundamentally and don‘t listen to each other an awful lot.  People watch their own news stations to get views that they agree with, that that‘s had a real impact on the reputation of journalists because people have gotten angry at journalists not because they‘re not good journalists, but because they‘re saying things people would rather not hear.  That is part of it. 

ABRAMS:  You‘ve taken on a lot of very popular people.  In your book you talk about taking on Rudy Giuliani, taking on John McCain, taking on Wayne Newton in Las Vegas.  Are you always the guy who is taking on the popular guy and as a result being the somewhat unpopular one? 

F. ABRAMS:  That is often true, certainly true in the Wayne Newton case.  As we used to drive down Wayne Newton Boulevard on the way to the court, we used to think about that all the time.  And the Giuliani case, I don‘t know, I think we had the more popular side.  He wasn‘t yet the sainted leader of New York City.  He was just a very angry mayor. 

ABRAMS:  In the book you seem to really kind of slam Giuliani.  Let me read from one quote in the book.  “Of all the conduct of Mayor Giuliani personally and that of his administration that violated the First Amendment, no action was more notorious than his conflict with the Brooklyn Museum and none resulted in so personally humiliating a defeat for Giuliani.  I still believe that Giuliani knew perfectly well that First Amendment law made his conduct lawless.  About that I think he simply didn‘t care”—pretty strong words. 

F. ABRAMS:  Well that‘s what I mean.  I mean Mayor Giuliani had a long record of antipathy to and anger at First Amendment claims.  His one was of the few administrations—he had a lot better administration than a lot we‘ve had in New York City.  But his was one of the very few which is a matter of policy, tried to not only restrict information but to control it to the extent that it was essentially lawless.  He kept losing in court and losing in court and losing in court and not caring. 

ABRAMS:  Yes.

F. ABRAMS:  So by the time the Brooklyn Museum case happened and he basically said to the museum, if you keep that one picture up out of that exhibition...

ABRAMS:  Of elephant dung...

F. ABRAMS:  Elephant dung on a picture of the holy Virgin Mary, in African garb.  If you keep that picture up, I‘m going to shut this museum down.  That in my view...

ABRAMS:  Yes.

F. ABRAMS:  ... was as hostile act to the First Amendment as any political leader has in living memory. 

ABRAMS:  Very quickly, I‘m out of time, but what do you say to those people

who watch this show and they know your career and they say, they write in -

·         it happens a lot—your father would be so ashamed of what you just said.  And does your father know what you do on the show and what you say on this show?  All these great Floyd Abrams fans seem to think that the son has fallen so far from the tree. 

     

(LAUGHTER)

F. ABRAMS:  Well, to all the people who are my fans, I approve of everything that you have done.

ABRAMS:  Dad, congratulations...

F. ABRAMS:  Thank you.

ABRAMS:  ... on the book and...

F. ABRAMS:  Thank you. 

ABRAMS:  ... thanks for coming on the show. 

F. ABRAMS:  Thank you, nice to meet you. 

(LAUGHTER)

ABRAMS:  Again, the book is called “Speaking Freely” and my dad and I will continue our conversation live next Monday night, April 18, at the 92nd Street Y in New York City at 8:15.  There are still tickets available, 212-415-5500 or go to www.92y.org on the Web.

Coming up, closing the terrorist loophole in our nation‘s gun laws that could let terrorists buy guns—can you believe this—had a controversy over this?  It‘s my “Closing Argument” coming up.

(COMMERCIAL BREAK)

ABRAMS:  It seems Congress‘ desire to ensure that gun sales are completely unrestricted still outweighs their desire to keep weapons out of the hands of potential terrorists.  My “Closing Argument” is coming up.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—who would think it would even be a controversy whether to allow individuals not permitted on planes because they pose security risks to buy guns.  Well it seems in this Congress the desire to ensure that gun sales are completely unrestricted outweighs the desire to keep weapons out of the hands of potential terrorists. 

This comes after last month‘s alarming report from the Independent General Accounting Office in Washington that those on the FBI terror watch list are buying guns just as easily as everybody else.  The GAO report found that 47 suspected terrorists legally purchased firearms.  FBI Director Robert Mueller conceded there‘s nothing the FBI can do about it. 

So how is it possible that efforts to change the law are hitting roadblocks in Congress?  Even when there is suspicion that the buyer may be involved with al Qaeda, many in Congress are fighting change.  Even just legislation to make sure those on the terror watch list get mandatory checks or to ensure records are kept for more than 24 hours so we can at least track whether a terror suspect has purchased a gun.  In my favorite effort of twisted logic, one Republican congressman said boarding an airplane is a privilege.  Owning a gun is a right. 

Suddenly the same people who are willing to allow the government to intrude on all sorts of recognized constitutional rights to fight the war on terror say that, well, the war on terror still comes second to the ability to buy a gun at any place at any time without restriction.  How about just taking the consistent position that at this time in our nation‘s history with radical fundamentalists plotting to kill us that we have to accept certain restriction on our privacy, period. 

From being searched in airports to the Patriot Act, to some types of gun restrictions.  Sure, there are problems with the terror watch list.  But if those problems are so severe, let‘s scrap it.  If we keep it, let‘s use it.  Some in Congress are consistent on the other side.  They say that they don‘t want anything to change as a result of the increasing terror threats.  They oppose the Patriot Act with the same fervor that they want to stick to their guns, so to speak. 

Fine, I accept—I understand that position.  But the majority of those complaining about any new legislation want to only continue the terror loophole when it comes to guns and just guns.  Call me too conservative or too liberal, but I don‘t think we can afford any loopholes for anyone suspected of being a terrorist. 

Coming up in 60 seconds, they say crime doesn‘t pay.  But at one high school, turning in criminals doesn‘t pay much either.  Our “OH PLEAs!” segment coming up.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  I‘ve had my say, now it‘s time for “Your Rebuttal”.  In my “Closing Argument” Friday, I said Tom DeLay‘s recent inflammatory rhetoric about our judges is shameful and pure pandering, an effort to make sure Congress can pass any laws, desires without any judicial oversight.  I pointed out that the U.S. Congress doesn‘t have constitutional authority what decision courts make, hence the separation of powers. 

Denisha Nicole Benson, “Bravo on your perspective of Tom DeLay.  I think Tom DeLay must have skipped his civics class.  I thank God the current courts did not succumb to the whims of people like DeLay.”

From Prescott, Arizona, Anthony Mastrangelo, “Your comments about DeLay could not be more accurate and should serve as a warning to every American.”

But Deanene Tonn in Wichita, Kansas, “I‘m left wondering where is the check

and balance for the judicial branch?  If judges rule inconsistent with our

national and state constitutions, how do we keep that from recurring?‘

(INAUDIBLE) where‘s the check?  The president appoints the federal judges.  The Senate advises and consents.  If you don‘t like the way the judges rule, then appoint different kinds of judges.  But the courts are not supposed to be slaves to public opinion.  If you don‘t like it, talk to the framers of the Constitution. 

Also on Friday, we told you “Sesame Street” will now have “Cookie Monster” singing a new tune to promote healthy eating, offering him healthier cookies on the show, even bringing residents to the “Street” to help “Cookie Monster” curb his cookie addiction.  Oh, please.

From East Strasburg, Pennsylvania, Jess Charpentier, “Is Oscar still going to be able to live in his trash can or will the offend the homeless population?  Are Bert and Ernie going to stop having to be roommates and what about Barkley?  Is he going to get a ticket because of his blatant disregard for the leash laws?”

Pije in Mobile, Alabama brings it back to Michael Jackson.  Remember he told Jesse Jackson he was being persecuted like other black luminaries?  “I think the “Cookie Monster” is being persecuted like other blue luminaries.  We need Jesse Jackson on this cookie case.”

“OH PLEAs!”—ordinarily we hear rewards for thousands of dollars for turning in a criminal.  How about a whopping 10 bucks?  That‘s what one high school is offering.  Model High School in Rome, Georgia is offering the student snitches $10 for information about theft on campus, 25 to 50 for information on drug possession, and the big jackpot, 100 bucks for any information regarding gun possession or other serious felonies. 

And where are they raising the big bucks—from sales of the ever-sinful candy and soda.  Oh please, that 25 bucks is going to lead some kid the risk forever being known as a snitch, possibly getting beaten up at school?  Shocker, no student has received the award yet.  Look, kids should turn in criminals but it‘s not going to happen because a few bucks are on the table.  And what kind of lesson does that teach?  You have to get paid to do the right thing and not much money at that. 

That does it for us tonight.  Be back at 9:00 Eastern with a special edition of the program.

“HARDBALL” with Chris Matthews is up next. 

END

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