updated 6/30/2005 8:19:49 AM ET 2005-06-30T12:19:49

Guest: Mariaine Croes, Theodore Simon, Kim Parker, Arlene Ellis-Schipper, Ken Starr

DAN ABRAMS, HOST:  Coming up, two suspects held in connection with the disappearance of Natalee Holloway in Aruba, are released. 


ABRAMS (voice-over):  Party D.J..

ABRAMS:  ... suspect Joran Van Der Sloot‘s dad, Paul, walks free. 

Does this mean the investigation is at a standstill?  What is going on? 

And confessions of a serial killer.  The man known as BTK who struck fear in Kansas residents for more than 18 years pleads guilty, but then recounts how he picked and tortured his victims. 

And a split decision at the Supreme Court on the Ten Commandments, it can be displayed on government property but not inside courtrooms (INAUDIBLE). 

The program about justice starts now. 


ABRAMS:  Hi everyone.  First up on the docket tonight from Minneapolis, Minnesota, two suspects held in the disappearance of Alabama teen, Natalee Holloway in Aruba are released from custody.  Twenty-six-year-old party boat D.J. Steven Croes was released this afternoon after 10 days in police custody.  Yesterday Aruban authorities released Paul Van Der Sloot, father of Dutch suspect, Joran.  Paul was arrested Thursday in connection with Natalee‘s disappearance, according to his attorney, for collaborating with his 17-year-old son. 

Now Joran Van Der Sloot remains in custody, along with brothers Satish and Deepak Kalpoe.  Natalie was last seen four weeks ago today apparently leaving a bar in Aruba with Van Der Sloot and the two Kalpoe brothers. 

Martin Savidge is in Aruba and joins us now.  So Martin, are people there surprised at this latest development? 

MARTIN SAVIDGE, NBC NEWS CORRESPONDENT:  I think they are.  They were especially surprised by the release of Paul Van Der Sloot, because his arrest had shocked so many people.  It was felt that there must be some very firm evidence in order to bring him into custody and then less than four days later he is being released. 

Now it has to be pointed out that that release was not as a result of the prosecutor‘s office, it was the result of the judge making a determination that there simply wasn‘t enough evidence to warrant holding him in custody and it does not mean that he is not a suspect.  He probably is still considered very much so by the prosecutor‘s office, but of course, you can ask them on that front.  So, a surprise, yes.  Steven Croes being released, no, that wasn‘t so much of a surprise today.  For his family, though, it is a great source of celebration.  In fact, they are at church right now giving thanks.  They also keep in mind, though, that Natalee Holloway is still missing—Dan. 

ABRAMS:  All right, Martin, and we‘re certainly going to check in with the mother of Steven Croes in a few minutes.  Thanks a lot Martin.  We appreciate it.  Obviously, if anything happens in the next hour, we‘ll have you right back on the air.  But again as I say, we are going to speak to Steven Croes‘ mom.  Martin saying she‘s in church now.  Natalie has been missing for four weeks and as far as the authorities know, we don‘t know that they are any closing to solving this case.  Seven arrests have been made.  Four of those suspects have now been released.  Still no answers. 

Joining me now once again, Mariaine Croes, spokesperson for the prosecutor‘s office in Aruba.  Thank you so much for coming back on the program.  We do appreciate it.  All right, let me ask you about this. 


ABRAMS:  So your office wanted Paul Van Der Sloot detained, meaning your office was fighting to keep him behind bars, correct? 

CROES:  Yes, because the prosecutor had already made the decision to keep him for another eight days.  The judge of instruction, though, didn‘t agree with that decision so he was set free at this point. 

ABRAMS:  So basically the judge is saying what?  I mean there is a pretty low standard from what I understand in Aruba to hold someone at this initial stage.  It sounds like what the judge was saying is in essence, that you guys have nothing on Paul Van Der Sloot.  Am I wrong there? 

CROES:  I cannot go exactly on what the judge said.  I can say though that he is of the opinion that the reasonable suspicion that we think there is, he does not agree with that. 

ABRAMS:  And how big a setback is this for you in the context of this investigation? 

CROES:  At this point this person is still a suspect and we are still investigating just as hard as we were last week. 

ABRAMS:  He is—and as far as your office is concerned, he is still a suspect in connection with homicide? 

CROES:  It‘s—yes.  At this point, yes, and that‘s why we are still investigating. 

ABRAMS:  So if you find more evidence, you may—your office may arrest him again, correct? 

CROES:  Yes, but you do have to have new facts and circumstances to arrest somebody again. 

ABRAMS:  What about Steven Croes, the party boat D.J.?  He was released.  Did your office fight—your office did not fight to keep him behind bars, correct?

CROES:  No, we did ask to keep him for another eight days, but when the judge made his decision to let him go, we agreed with that. 

ABRAMS:  How does that happen?  I mean it—you agreed with—even though you were fighting to keep him behind bars the judge said we‘re going to let him go and then you agreed with it?  How does that work? 

CROES:  It‘s not that we fight to keep somebody in custody.  When you get to the—after the first 10 days the prosecutor files a motion with the judge of instruction to keep somebody in custody and you do have to have sufficient grounds to do this.  And—but the 10 days—in those 10 days you keep investigating.  And that‘s why the investigation did not yield the results to keep this person in custody, so that‘s why when the judge of instruction decided it was time to let him go, we agreed with that. 

ABRAMS:  Let me tell you what some of my viewers have been writing in, and they are concerned that this investigation is falling apart, and that key witnesses, key suspects, are not coming through.  That the wrong people are being arrested.  Can you reassure my viewers who are concerned that this is going off target here? 

CROES:  Of course I can reassure them.  It‘s not—the thing is most of our investigation is not visible to the eye of the public, but we are investigating.  And it‘s not that we keep on arresting people just because we want to arrest them.  When we arrest somebody, at that point there is a reasonable suspicion to arrest that person.  And then investigation must show what this person‘s role is. 

And if his role is not that big or if it is not necessary to keep him in custody, he will then be set free.  But that does not mean at this point that we are not investigating anymore. 

ABRAMS:  Right.

CROES:  We are still investigating just as hard as we were three weeks ago. 

ABRAMS:  If Paul Van Der Sloot is a suspect in connection with the homicide of Natalee Holloway, as are these three young men who are still in custody, does that mean as far as your office is concerned you believe that Natalee is dead? 

CROES:  At this point as we got further along in our investigation, and more time has passed, you do have to start thinking in more serious terms.  And the most serious term is that this girl is no longer alive. 

ABRAMS:  Right.  But we‘ve all been sort of thinking that that‘s a possibility, but it sounds like your office‘s position at this point is that she is dead.  Is that true? 

CROES:  We do have those three suspects in custody for that criminal offense.  But that does not mean that if we get a lead that it‘s going somewhere else or that she is still alive, we will still investigate that lead.  But we‘re just working from the position that as more time passes you do have to start thinking in more serious terms. 

ABRAMS:  All right.  Mariaine Croes, thanks very much for coming back on the program.  Keep us up-to-date and you know stay on this.  I know your office is going to do this, but the number of e-mails we‘re getting from our viewers who are saying please, please make sure that they stay on this, that they stay focused, I just wanted to speak for my viewers for a moment and just let you know that a lot of them asked me to say that to you. 

Joining me now, criminal defense attorney, Ted Simon, who has worked on a lot of international cases, very prominent attorney, you know Ted, including some in Aruba.  Ted, good to see you again.  All right, so Ted, what do you make of this?  I mean can we read from this that things are not going so well in the context of the investigation or is that not fair? 

THEODORE SIMON, CRIMINAL DEFENSE ATTORNEY:  Well I don‘t know that you can really grade their paper because you don‘t know what cards they are holding.  You don‘t know what‘s in their hand until you see their cards and they‘re not going to show them.  But what we do know is they thought they had enough evidence to keep Paul Van Der Sloot in jail, even with, as you mentioned, the very low standard of reasonable suspicion, unlike the standard in our country of probable cause.  They could not meet that minimal threshold.  So unless they are being overly clever and letting him out when they really have a lot more in their hand, it seems like they didn‘t have very much against the father. 

ABRAMS:  Well but I mean they‘re losing—again as you point out, the standard is very low, right, and they‘re saying we want to keep him, we want to keep him, and the judge is saying you know sorry, I am going to let him go.  So question “A”—does that mean that they just had nothing on this guy and maybe they were just trying to tighten the screws on Joran?  Or “B”, could it mean that they‘re saying this is a judge in training we are holding here.  We better have pretty strong evidence before we hold him.

SIMON:  Absolutely.  I mean you had minister of justice there actually candidly say that they arrested him, at least in part to put pressure on the son.  And you know, we don‘t—again, we don‘t know what evidence they have.  The question really remains you know after the three young men were arrested, what did the police do? 

What did law enforcement do?  Did they, in fact, gather the sar (ph) records?  We think they did.  Did they monitor their movement?  Did they monitor their conversations?  Were there conversations or just relationships between...

ABRAMS:  Right.

SIMON:  ... the father and son?  We don‘t know this.  Or was it just inconsistencies between the father‘s story and that of the son?  And even if there were inconsistencies, does that mean that there, in fact, really has been a crime committed? 

SIMON:  Obviously, we‘re all concerned, but who knows.

ABRAMS:  And that‘s why Steven Croes was arrested.  I mean Steven Croes actually went to the authorities and said hey, you know, I heard this guy, Kalpoe, talking on the phone.  He then gives a which isn‘t consistent with Kalpoe and so then they arrest him. 

SIMON:  Right.  I think actually if I remember right Croes went voluntarily to the police and said hey I was at the hotel and I saw the others there, which he was making up the white lie.  The real question here is it a white lie or is it the big lie?  Are they covering up for staying out late as a young teenager or a young adult and they didn‘t really do anything problematic or are they covering up for something that‘s much more severe?  And right now we don‘t have any hard evidence to suggest that in fact there is a crime. 

ABRAMS:  Yes, we‘re still hoping to talk to his mom later in the show.  Here is Anita Van Der Sloot, the wife of Paul and the mother of Joran speaking earlier. 


ANITA VAN DER SLOOT, JORAN VAN DER SLOOT‘S MOTHER:  They took my husband.  And I thought well maybe this is just for some questions.  But then (INAUDIBLE) came back and he told me that they took my husband into custody because of, I don‘t know how to explain that in English...

UNIDENTIFIED MALE:  Material witness? 

VAN DER SLOOT:  Yes, yes...


VAN DER SLOOT:  ... or as a suspect.  He said as a suspect. 

UNIDENTIFIED FEMALE:  He used the words as a suspect...

VAN DER SLOOT:  ... the word suspect, yes.  And he wanted to tell me himself.  I said well, I thank you very much, but now this is something that is so bizarre, so bizarre, that my husband, who is a man full of integrity, who worked for 15 years in the judicial department, that he got taken like this without any evidence, without any—without anything.  That I was just furious. 


ABRAMS:  Ted, if you were Paul Van Der Sloot‘s lawyer, would you be worried he‘s going to get arrested again? 

SIMON:  Well I don‘t—I mean obviously it would help to know what he would say, but I don‘t really think so because look what he did.  You know in Aruba, just like the United States, you have a right to be free from self-incrimination.  He has not invoked that.  In fact, there‘s also a right down there of parent-child privilege and he‘s waived that, so he‘s willing to say whatever in regard to himself and/or with regard to his son.  He could have invoked those shields, but didn‘t, so what does that tell you? 

It tells you that he probably doesn‘t either want—he probably doesn‘t know anything that‘s going to harm his son.  I just don‘t—I mean that‘s my gut reaction to what is going on.  And look at this, let‘s evaluate the relationship between the two.  Let‘s assume the worst.  If Joran actually did something problematic, would he in fact tell his father or would he not?  I mean...

ABRAMS:  Right.

SIMON:  ... one, we don‘t know anything really problematic happened yet, but how do we—why do we believe that he necessarily would tell his father?  I mean... 

ABRAMS:  We don‘t know necessarily, but he might have, I mean you know...

ABRAMS:  ... a lawyer, he could ask him advice.  I‘ve got to wrap it up.  Ted, good to see you.  Thanks for coming on the program. 

SIMON:  All right. 

ABRAMS:  Coming up, is the investigation in trouble?  You know I want to talk to a local Aruban lawyer also about what‘s going on there. 

Plus a serial killer in his own words. 


UNIDENTIFIED MALE:  I put a plastic bag over his head (INAUDIBLE) and tightened it. 

UNIDENTIFIED MALE:  This was in the bedroom? 


UNIDENTIFIED MALE:  Did he in fact suffocate (INAUDIBLE)... 

UNIDENTIFIED MALE:  Not right away.  No sir, he didn‘t. 


ABRAMS:  Man known as the BTK killer pleads guilty in court, then describes torturing and murdering his victims in gruesome detail. 

And the Supreme Court rules it‘s OK to put the Ten Commandments on the lawn of the state capitol building but not inside a courthouse.  How does that make sense?  I‘ll ask former special prosecutor, former judge, former solicitor general Ken Starr coming up. 



DENNIS RADER, BTK SERIAL KILLER:  I finished the job on Kathryn and she was fighting.  And at that point and time I‘d been fighting her and I just and then I heard some—I don‘t know whether I was basically losing control.  Strangulation wasn‘t working on her and I used a knife on her.


ABRAMS:  Sounds like is he describing buying milk or getting an oil change.  That‘s disgusting.  The notorious BTK serial killer calmly methodically describing how he murdered 10 people between 1974 and ‘91, saying he—quote—“trolled for victims” whom he called—quote—

“projects” specifically selected to carry out his sexual fantasies. 

Dennis Rader, the self-named bind, torture and kill murderer, tormented Wichita, Kansas for 31 years.  Today only five months after his arrest, Rader pleaded guilty to 10 counts of murder, but not before the judge asked him to describe in detail exactly how he did it.  Now let me warn you, what you about to hear is extremely graphic. 


RADER:  First of all, Mr. Otero was strangled or a bag put over his hand and strangled.  Then I thought he was going down and I went over and strangled Mrs. Otero and I thought she was down.  Then I strangled Josephine and she was down and then I went over to Junior and put the bag on his head.  After that, Mrs. Otero woke back up and you know, she was pretty upset, what is going on?  So I came back and at that point and time strangled her for a death strangle at that time.  When I went back, Josephine had woke back up. 

UNIDENTIFIED MALE:  What did you do then? 

RADER:  I took her to the basement and eventually hung her. 

UNIDENTIFIED MALE:  You hung her in the basement? 

RADER:  Yes, sir. 

UNIDENTIFIED MALE:  Did you do anything else at that time? 

RADER:  Yes, I had some sexuality fantasies, but that was after she was hung. 

UNIDENTIFIED MALE:  All right.  So you identified Kathryn Bright as a potential victim. 

RADER:  She and Kevin Bright came in.  I wasn‘t expecting him to be there and come to find out, I guess they were related.  At that time I approached him and told him I was wanted in California, needed a car.  Basically the same thing that I told the Oteros, kind of ease them and make them feel better. 

UNIDENTIFIED MALE:  You indicated that you had some items to tie these people with.  Did you bring these items both the Oteros and to this location? 

RADER:  The Oteros I did.  I am not really sure on Brights.  If I had brought my stuff and used my stuff, Kevin would probably be dead today. 


RADER:  I‘m not bragging on that, it‘s just a matter of fact.  Vian was—actually on that one, she was completely random.  We went back to the—her bedroom and I proceeded tied the kids up and they started crying and got real upset, so I said this is not going to work, so we moved them to the bathroom.  She helped me and I tied the door shut.  We put some toys and blankets and odds and ends in there for the kids to make them as comfortable as we could, then I proceeded to tie her up. 

She got sick and threw up.  I got her a glass of water and comforted her a little bit and then went ahead and tied her up.  And then I put a bag over her head and strangled her.  I confronted her, told her that I was—

I had a problem—sexual problems, that I would have to tie her up and have sex with her.  She was a little upset.  We talked for a while. 

She smoked a cigarette.  While we smoked a cigarette, I went through her purse and identified some stuff and she finally said well let‘s get this over so I can go call the police.  I handcuffed her, had her lay on the bed, and then I tied her feet.  And I was also undressed to a certain degree.  And then I got on top of her, and then I reached over, took either her feet were tied or not tied.  But anyway, I think I had a belt—I took the belt and then strangled her with the belt at that time. 

UNIDENTIFIED MALE:  It was claimed that you unlawfully killed Marine Hedge. 

RADER:  No, I manually strangled her when she started to scream.  Eventually I moved her to the trunk of the car, took the car over to Christ Lutheran Church.  She was already dead, so I took pictures of her in different forms of bondage.  And that‘s probably what got me in trouble was the bondage thing. 

Wegerle was another potential victim.  I used a ruse as a telephone repairman to get in her house.  After I tied her hands, she broke that and we started fighting and we fought quite a bit.  I finally got the hand on her and got a nylon sock and started strangling her.  It was very cold that night. 

I had reservations about going in.  I had cased the place before and (INAUDIBLE) how to get in and she was in the house.  So I finally just selected a concrete block and threw it through the plate glass window on the east and came on in.  After I tied her up, I went through some things in the room there and then strangled her, and then I drove up northeast of Sedgwick County and dropped her off underneath the bridge. 


ABRAMS:  That is one of the most horrifying, disgusting things I have ever heard.  I mean his demeanor is so disturbing. 

Joining me now, Wichita, Kansas chief deputy, District Attorney Kim Parker, who was in court today.  Was your reaction the same—I mean look, there are a lot of horrible people out there.  There are a lot of horrible murderers and killers, but it almost seems like he doesn‘t have any remorse or regret.  Am I wrong?  Did he express that in court? 

KIM PARKER, WICHITA, KS DEP. DISTRICT ATTORNEY:  He expressed no remorse and are absolutely right.  It was one of the most chilling things I‘ve ever heard.  I have prosecuted for 23 years a number of murder cases, a number of rapes, sexual assault cases, and he is very matter of fact.  I think it seems as if he recognizes who he is, what he is capable of, and his intents are very clear.  And he expressed today that he was going to fulfill his objectives, that being killing and sexually fantasizing while he was in the presence of these victims or strangling them and he would do whatever it took to complete those tasks. 

ABRAMS:  You know I have to tell you as we played that and I think about what we knew about this guy, I start to wonder you know, about playing the tape.  I mean is this what he wants?  Meaning, I know that for a long time he was sending these notes to the media, et cetera, he wanted attention.  He wanted to be heard, et cetera.  Was this his final disgusting hurrah? 

PARKER:  You know I think—I‘m really proud of you for targeting on that because I think that‘s probably exactly right.  He has always throughout sought attention, sought media attention, sort of a cat and mouse game.  And now this gives him one more opportunity to control what‘s going on, gathering the media attention.  And it‘s very unfortunate because the lives of those individuals that he took, so without mercy and with such depravation, he has certainly affected and impacted people for a long time in a horrible, terrifying way. 

ABRAMS:  Well, you know, look, maybe we should have thought twice about this, I don‘t know, before playing this, but you know it‘s done.  So let me ask you this—you know I think this is one thing we can do, which is to say tell me a little bit about how the victims‘ families are doing.  This must have been very, very hard for them to listen to. 

PARKER:  Yes, it was very emotional, especially, I think, for those families that were represented at the time of the murders of their loved ones they were only children, like Steve Relford and the Wegerle children.  And the Oteros were left without their parents and brother and sister.  And it‘s, you know they have lived their lives not knowing what‘s gone on.  They‘ve tried to imagine why anyone would take the life of the one that they loved so much.  But they intend to speak at some point, at the time of sentencing, and so they will have an opportunity to at that time maybe give some insight to the court what their feelings are about this man, and the horrifying things that he‘s done to destroy their lives. 

ABRAMS:  Finally, you can‘t seek the death penalty, right?  I mean when this is over, he‘s going to get life in prison, right? 

PARKER:  That‘s true.  The death penalty was not in effect in Kansas at the time of the murders.  There was a death penalty statute, however it had been voided by (INAUDIBLE), a decision as unconstitutional.  It was on the books.  However, there was also a state ruling that indicated that that was not and could not be imposed in this state.  And therefore, it was null and void at that time and no notice was given to anyone of death and so you could not impose death for those murders. 


PARKER:  1994, Kansas re-enacted the death penalty. 

ABRAMS:  I‘m glad that the families don‘t have to sit through a trial where he sits there and claims he didn‘t do it, even though you know you guys had a confession, DNA evidence, et cetera.  You know at least that‘s small, small solace is there, but that is going to haunt me for a long time.  Kim Parker thanks a lot for coming on the program. 

PARKER:  Thank you.  Thank you.

ABRAMS:  Coming up, more on the investigation into Natalee Holloway‘s disappearance in Aruba one month later, a total of four suspects released.  Three are still in jail.  No one is charged.  Is this investigation going anywhere? 

And two major rulings for the U.S. Supreme Court, one for and one against putting the Ten Commandments in a public place.


ABRAMS:  Coming up, Aruban authorities release two suspects in connection with the disappearance of Natalee Holloway, American teen missing.  It has been a month since she disappeared.  We‘ll have more on that, but first the headlines. 


UNIDENTIFIED MALE:  The police, they treat you good?

STEVE CROES, JUST RELEASED FROM POLICE CUSTODY:  Yes, I didn‘t have any complaints, not of the police, they treat me good and everything was all right.  It‘s just that you know, when you know you didn‘t do something and (INAUDIBLE) for something and it‘s like, you know, make you sad. 


ABRAMS:  Party boat D.J., Steve Croes released after a judge says there just isn‘t enough evidence to hold him anymore.  He spent 10 days behind bars in connection with the disappearance of Alabama teen, Natalee Holloway, last seen four weeks ago celebrating her high school graduation in Aruba.  Four suspects have now been released. 

The most recent two, that party boat D.J., Steve Croes, and Paul Van Der Sloot, a judge in training on the island and the father of Joran Van Der Sloot, Dutch team who‘s been in police custody for almost three weeks, along with brothers Deepak and Satish Kalpoe.  So exactly what is going on there? 

Joining me once again is Aruban attorney Arlene Ellis-Schipper.  Thanks for coming back on the program.  We appreciate it.  All right, so was this a big setback for the prosecutors?  I mean in both these cases with Paul Van Der Sloot and with Steve Croes, the initial position of the prosecutors was we want to keep them behind bars. 

ARLENE ELLIS-SCHIPPER, ARUBAN ATTORNEY:  Correct.  Whether it was a big setback, I don‘t know.  I don‘t have the details (INAUDIBLE).  It was, indeed, their intention to keep them behind bars for Mr. Steve Croes, I understand that the judge assessed this case completely because that is what he should do at that moment.  And then he has to determine whether there is enough probable cause at this point.  And he apparently ruled that there was just not enough probable cause. 

ABRAMS:  Should we be worried about the investigation?  When you have these two security guards released—they were the first ones arrested.  Now you have Steve Croes and Paul Van Der Sloot being released even though the prosecutors are saying we‘ve got enough evidence, we‘ve got enough evidence, the judge is saying I‘m looking at the evidence and there‘s just not enough here.  Should there be any concerns about how the prosecutors are going about this case? 

ELLIS-SCHIPPER:  Well, I don‘t know.  You have to understand that our system works differently.  It seems strange that they keep on arresting people, but it is not like that.  You have to understand that here you can arrest someone when you have reasonable suspicion.  And apparently the prosecutor had reasonable suspicion with all these cases. 

Then they take them into police custody for two days.  After two days they can extend them with eight days.  The first 10 days basically are for investigation purposes.  And you see, every time, except for the part of Mr. Van Der Sloot, that every time one is released, it‘s after the 10 days when the judge thoroughly assesses the case for probable cause.  And—so it works a little bit different than in the states. 

ABRAMS:  But is it unusual for a judge—I mean because that standard is so low, is it unusual for a judge to be at odds with the prosecutors where the prosecutors are saying we believe we do have enough evidence and for a judge to say even though that standard is so low I still don‘t think you have enough? 

ELLIS-SCHIPPER:  It‘s not unusual.  This is how the system—it is a two-way system.  The judge just simply has to assess on an objective basis.  And the prosecutor just at this moment, so early in the investigation when one is arrested in the first 10 days, looks more at what do I need to get my investigation complete.  So it is not so unusual, no. 

ABRAMS:  All right, Arlene Ellis-Schipper, thank you so much.  We appreciate it.  We‘d love for you to come back and keep us honest on the law in this case.  Thanks. 

Coming up, a split decision from the U.S. Supreme Court on the Ten Commandments.  All right, so the Ten Commandments can be displayed on government land but not inside a courthouse.  (INAUDIBLE)

We talk to former special prosecutor, former judge, Ken Starr after the break.  Also the court refused to hear the cases of two journalists who have refused to reveal their sources to a federal grand jury.  Now they are both almost certainly headed to jail.  I‘d say the wrong people are being persecuted here. 

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


ABRAMS:  Coming up, the U.S. Supreme Court issues it seems like confusing rulings about displaying the Ten Commandments in public.  We‘re gong to sort it all out with Ken Starr, up next.



GREG ABBOTT, TEXAS ATTORNEY GENERAL:  The Supreme Court was very clear that it is perfectly constitutional for states and governments to fully recognize the important role that religion has played in our history and in our legal system. 


ABRAMS:  The court was clear?  What opinions was he reading?  Texas‘ Attorney General Greg Abbott commenting on the court‘s decision that a Ten Commandments display on the state house grounds in Austin was constitutional.  Maybe it‘s the winter.  He can be forgiven for calling this court‘s ruling clear, because in the final day of its term the court issued two rulings about public displays of the Ten Commandments. 

In the Texas case 5-4 majority led by Chief Justice William Rehnquist agreed the 40-year-old granite monument was constitutional, partly because it was surrounded by other monuments that gave it a historical and secular context and partly because it had been there for 40 years before someone objected.  But in a Kentucky case a different 5-4 majority ruled against two counties, which posted copies of the Commandments in their courthouse. 

Justice David Souter writing for the majority argued, the record showed that the county‘s purpose in posting the Commandments was religious not secular, even though the counties twice changed the displays in hopes a higher court might approve. 

Our friend Ken Starr is dean of the Pepperdine University Law School. 

He has also served in government as solicitor general, independent counsel. 

Good to see you again.  All right, so Ken, you know these are sort of nice.  As an intellectual matter this may make perfect sense to the justices, but as a practical matter, haven‘t they created a total mess? 

KEN STARR, DEAN, PEPPERDINE UNIV. LAW SCHOOL:  It continues to be confusing.  The country is confused because the court is so deeply divided.  They cannot agree in the area of the religion clauses, but especially the establishment clause.  Congress shall make no law respecting an establishment of religion.  What does that mean? 

For 50 years now the court has been divided and it was divided deeply today.  Texas, it is OK, it has been there a long time.  Kentucky, not so, it‘s very new and very careful inquiries into the purpose of the county officials and the school officials.  Schools were involved there as well as to what it was that they were really up to.  Were they trying to bring religion and the Jewish and Christian faiths into the courthouses and the schools in those two jurisdictions? 

ABRAMS:  Ken, as a practical matter, though, when those individuals are going about deciding whether to put that Ten Commandments up at their court—remember it‘s still OK at the U.S. Supreme Court, right...

STARR:  That‘s exactly right. 

ABRAMS:  ... because it‘s supposedly in context. 

STARR:  Chief Justice Rehnquist could not have been clearer in taking us through, really a tour of the monuments of Washington beginning with the Supreme Court.  He must have enjoyed writing that opinion, pointing out that Moses is ubiquitous.  He really is everywhere, including with the Ten Commandments, at times including in the Supreme Court in Hebrew, as well as in English. 

ABRAMS:  Am I cynical in saying that as a practical matter now for legislators or county officials who want to go about deciding whether it‘s OK for them to put up the Ten Commandments wherever, that the court has really not provided any guidance that is going to resolve that question when that county or that town or that city or that whatever get in a fight about whether to post the Ten Commandments?  People are going to cite both sides of the court and there are not going to be any definitive answers. 

STARR:  I think that is fair that the court is again so divided and it is going to look very carefully at the facts.  And so lawyers will be telling county officials you‘ve got to be very cautious if you want to bring something in.  Remember Chief Justice Roy Moore of Alabama.  That has not been there historically. 

And as you pointed out, one of the key elements I believe in the decision in the Texas case was that that monument had been on the Texas state grounds for 40 years, just as so much of the architecture obviously has been in place for a long time.  But by the way, the Ten Commandments recently entered their appearance, so to speak, in the Ronald Reagan Building, Washington‘s newest government building, so there continues to be an architectural recognition of this part of our culture. 

ABRAMS:  You know it seems to me that Justice Rehnquist was the most intellectually honest, at least, when he said of course the Ten Commandments are religious.  They were so viewed at their inception and so remain.  The monument, therefore, has religious significance.  However, simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the establishment clause.

I mean that‘s about a straight a statement as I saw in any of the opinions. 

STARR:  And you know, and it took, Dan, the chief justice only 12 pages to say that.  It‘s secure.  It‘s simple.  You can agree or you can disagree.  He also noted that obviously in western civilization, but certainly in this country, the Ten Commandments also have an enormous power in terms of their legal significance, but he was not mincing words.

He did not blink at reality.  He faced up to it and said, of course, these are deeply religious documents. 


STARR:  These are the words of God in the Jewish and Christian faiths. 

ABRAMS:  And that‘s exactly—the problem is that‘s exactly what Justice Stevens was saying on the other side in dissent.  He says the monument is not a work of art, does not refer to any event in the history of the state.  The message transmitted by Texas‘ chosen display is quite plain.  The state endorses the divine code of the Judeo-Christian God.

They are saying the same thing basically and they‘re are on opposite sides of the opinion. 

STARR:  There it is and that‘s the great clash.  Justices, you can have the clash around the supper table, and so the next case is going to be a bit up for grabs. 

ABRAMS:  Oh...

STARR:  But I do think this, a lot of the opinions do have suggestions that certain references deeply rooted in our history like under God and the like may not be as vulnerable to challenge as we might think.  But we‘re still studying those opinions.  A lot of trees were felled and a lot of ink was spilled. 


STARR:  But what do know is the former justice, now attorney general of Texas, gets to keep the monument there on the Texas grounds. 


STARR:  And the Kentucky—I do want to emphasize this...


STARR:  ... the Kentucky opinion was extremely fact specific. 

ABRAMS:  Right.  Right.  Well that—yes, I mean it went through each and every version of it, et cetera.  I‘ve got to wrap...


ABRAMS:  ... good luck teaching this Ken.  This is going to be very interesting to see you try and explain this one.

STARR:  Yes...

ABRAMS:  Thanks for coming back. 

STARR:  My pleasure.

ABRAMS:  There were other several big Supreme Court decisions today.  One promises to cause a whole lot of problems for those who have become used to downloading free music or movies.  The court decided that file sharing services like Grokster or Cosser (ph) could be liable if customers use their software to illegally share music or movies. 

So again, it‘s still illegal to download copyrighted music and movies from the Internet without paying for them.  That hasn‘t changed.  You‘re still personally responsible for violating the copyright, but after today‘s decision, Grokster might also be found liable if it promotes a software as a way for you to download copyrighted material and share it with other users.  The court also declined to hear the cases of “New York Times” reporter Judith Miller and “TIME” magazine reporter Matthew Cooper, meaning both are likely going to jail for up to 18 months for refusing to disclose their sources in a federal criminal investigation in the leaking of the name of CIA agent Valerie Plame. 

Coming up, I say they‘re the victims as they prepare to spend time behind bars, and this guy, I say, still has a lot of explaining to do.  It‘s my “Closing Argument”.


ABRAMS:  My “Closing Argument”—a serious travesty of justice continues.  Someone leaked a covert CIA operative‘s name to a reporter.  That reporter published the name in his column, violating a federal law, at least the disclosure of it.  Then as the criminal investigation into the source of the leak proceeded, that reporter miraculously appeared to be in the clear.  But another reporter who never even published the name is going to prison for failing to disclose her source. 

That is the situation facing “New York Times” reporter Judith Miller today after the Supreme Court refused to hear her case, seeking First Amendment protection for her refusal to divulge her confidential source in the case of Valerie Plame, the former agent who was outed by Robert Novak in a column in 2003.  Now Miller never actually published Plame‘s name.  Another reporter also facing jail time in the case, “TIME” magazine‘s Matt Cooper did publish Plame‘s name on the “TIME” Web site but only after Novak‘s column ran. 

Now in addition to the fact the Supreme Court refused to consider the case today, which is a real shame, Robert Novak seems to be in the clear legally.  I‘ve said this before, say it again, but with both Miller and Cooper out of legal options and facing up to 18 months in federal prison today, it is more of a plea.  Robert Novak needs to step forward and take some responsibility here.  He doesn‘t want to disclose his source, fine.  But we don‘t even know if he was called before the grand jury or what he did or didn‘t tell prosecutors. 

Novak‘s silence puts Miller and Cooper at a distinct legal disadvantage.  The prosecutors indicated the case is all but finished and no one has been charged.  But if Novak did testify, Miller and Cooper might be able to say our testimony isn‘t even needed in the investigation or that we shouldn‘t be forced to testify before Novak does. 

In the spirit of full disclosure, again my dad, Floyd Abrams, representing Miller in the case, but this is an easy one.  Two reporters may be going to jail because they won‘t reveal who told them a secret while the guy who heard the secret first and made the decision to publish it, will be enjoying his summer vacation out of the reach of federal prosecutors.  If that‘s not warped justice, I don‘t know what is.

Coming up, your e-mails.  One of our viewers asks, if Aruba is such a safe place, why do they have so many criminal defense attorneys?  Coming up.


ABRAMS:  I‘ve had my say, now it‘s time for “Your Rebuttal”.  We‘ve only got time for one e-mail tonight, sorry about that.  This one about the search for missing American teen Natalee Holloway in Aruba.

Janet McCann writes from Connecticut, “I‘ve seen at least six criminal attorneys from Aruba on TV discussing the Holloway case.  One said there were about 90 attorneys, defense or prosecution, on the island.  For an island that‘s supposed to be safe, they sure have a lot of criminal defense attorneys.”

Oh, that does it for us tonight.  Coming up next, “HARDBALL” with Chris Matthews.  I‘ll be back at headquarters tomorrow.  See you then.


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