updated 10/28/2005 11:12:41 AM ET 2005-10-28T15:12:41

Guests: Mathew Staver, Nan Aron, Patrick Leahy, Steven Clark, Steven Greenberg, Champ Clark

DAN ABRAMS, HOST:  Coming up, Harriet Miers pulls the plug on her Supreme Court nomination. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  The White House says it‘s because Miers couldn‘t turn over documents that senators wanted.  Come on.  Is this about executive privilege or just about politics?  We‘ll talk to Republican Senator Orrin Hatch and Democrat Pat Leahy.

And 16-year-old Scott Dyleski charged with first-degree murder in the Pamela Vitale case.  We see him in court for the first time since he allegedly beat Daniel Horowitz‘s wife to death. 

Plus, Erik Menendez, he and his brother Lyle were convicted for killing their parents.  Now Erik is talking about the crime, his brother and his prison marriage. 

The program about justice starts now.  

(END VIDEOTAPE)

ABRAMS:  Hi, everyone.  First up on the docket tonight, Harriet Miers is out.  The controversy over her nomination to the Supreme Court is over.  Just 24 days after she stood in the Oval Office with President Bush and accepted his nomination, Miers has withdrawn her name from consideration.  Miers and the White House claiming she stepped down after the Senate demanded to see documents from her service with President Bush, documents the White House says must remain private. 

But the reality is Miers has been subjected to withering criticism, mostly from the right.  Conservative legal groups, conservative columnists demanding a battle-hardened conservative to replace Sandra Day O‘Connor on the high court, a jurist more in the mold of Justice Antonin Scalia or Justice Clarence Thomas.  Within hours of the news, senators from both sides responded. 

(BEGIN VIDEO CLIP)

SEN. BILL FRIST (R-TN), MAJORITY LEADER:  October 27, 2005, Dear Mr.  President, I write to withdraw as a nominee to serve as an associate justice on the Supreme Court of the United States.  I have been greatly honored and humbled by the confidence that you have shown in me and have appreciated immensely your support and the support of many others.  However, I am concerned that the confirmation process presents a burden for the White House and our staff that is not in the best interest of the country. 

SEN. JOHN CORNYN (R-TX), JUDICIARY COMMITTEE:  But this process, nomination process has gotten, in my view, unnecessarily contentious and down right nasty. 

SEN. BARBARA BOXER (D), CALIFORNIA:  We wanted to see the process proceed.  And unfortunately, I think for the nation, we saw right wing politics come into play, a very weakened president bowing to that right wing pressure, a woman I think ill served by this whole thing. 

SEN. ARLEN SPECTER (R-PA), JUDICIARY COMMITTEE CHAIRMAN:  Whether she would have been confirmed remains an open question.  But at least she would have had a major voice in determining her own fate. 

SEN. CHARLES SCHUMER (D-NY), JUDICIARY COMMITTEE:  If the president continues to listen to that extreme wing, on judicial nominations or everything else, it can only spell trouble for his presidency and for America. 

SEN. LINDSEY GRAHAM (R-SC), JUDICIARY COMMITTEE:  What I hope he‘ll do for the sake of the country is fulfill his campaign promise to send us a solid strict and structured conservative over, but pick somebody that can go through the Senate without blowing up the place. 

SEN. TRENT LOTT ®, MISSISSIPPI:  You know in this city, you know, there comes a moment where you have to cut your losses or admit maybe this is not going to work out and move on.  And when you do it properly, people will give you credit for that. 

SEN. HARRY REID (D-NV), MINORITY LEADER:  I believe without any question when the history books are written about all this that it will show that the radical right wing of the Republican Party drove this woman‘s nomination right out of town.  It‘s over with.  She‘s given her withdrawal to the president.  I don‘t think it‘s a good day for our country. 

(END VIDEO CLIP)

ABRAMS:  Before we check in with leading senators from each side of the aisle, let‘s go to MSNBC‘s chief Washington correspondent Norah O‘Donnell. 

All right, so Norah, what really happened here? 

NORAH O‘DONNELL, MSNBC CHIEF WASHINGTON CORRESPONDENT:  It was the perfect storm, things that killed Harriet Miers‘ nomination.  You know, she began all this and the president praised her as a trailblazer.  Well she leaves in some ways as a trailblazer as the first woman nominee ever to withdraw her nomination from the Supreme Court.  It is rare.

She‘s only the ninth person in history to have to withdraw her nomination for political reasons.  But clearly it was a number of factors.  I‘m told that last night Senate Majority Leader Bill Frist phoned the White House including White House chief of staff Andrew Card and gave him a quote-unquote “frank assessment” of what was the lay of the land in the Senate and that was simply put, there were not enough votes. 

This is not because of Democratic opposition but because of Republican opposition and concern that even on the Judiciary Committee that Harriet Miers would not get a vote out of that Judiciary Committee, and that was just too embarrassing a situation for this White House to take.  So number one, people felt she was not qualified, even a senior White House official admitting to me today that she simply did not have the constitutional law experience. 

She didn‘t have briefs before the Supreme Court.  She didn‘t have a constitutional law background when she was in private practice to present a paper trail to these senators.  That was one problem.  Ideology was another problem.  Yesterday, a very key day because they unearthed the speech from 1993 in which Harriet Miers talked about abortion and school prayer and she said the more I think about these issues, the more self-determination makes the most sense and that was a code word to some conservatives that she was talking about choice. 

So we saw the largest leading women‘s conservative group come out against her, say she must withdraw.  So that was the ideology.  And then finally there is some nexus I think with the CIA leak investigation.  And that is she was very poorly served.  In the words of Republican Senator Specter, her nomination was bungled from the beginning and that‘s because Harriet Miers was doing most of the heavy lifting for herself because she is the White House counsel. 

Her deputy, Bill Kelley, in the White House Counsel‘s Office is busy dealing with the CIA leak inquiry.  And of course tomorrow is a key day in this case.  The president needs his White House counsel.  He needs Harriet Miers back at her day job. 

ABRAMS:  And he also needs the support of conservatives if there are indictments...

O‘DONNELL:  I think that‘s the political angle to this because you heard a number of conservatives breathe this great sigh of relief today.  I think Ann Coulter said today that it was morning in America again and so just at a time when Karl Rove and the president needs his conservatives probably to go to battle for him, they are deeply happy today that Harriet Miers is no longer going to be the president‘s choice for the Supreme Court. 

One other interesting note we are hearing from the White House, at least, that they want to have the president make a new announcement within the next day or two...

(CROSSTALK)

O‘DONNELL:  ... about who will...

ABRAMS:  All right. 

O‘DONNELL:  ... be involved, so we‘ll see if that holds. 

ABRAMS:  And—all right, Norah O‘Donnell thanks a lot.  Later in the program I‘ll be telling you who my pick would be. 

(CROSSTALK)

ABRAMS:  All right.  My take on all this—I‘m tired of the double talk surrounding this nomination.  Let‘s be clear.  Her withdrawal had nothing to do with the request for documents from the White House Counsel‘s Office.  What they‘re surprised that the Senate requested these documents?  Come on.  This was a political decision. 

That‘s fine, but call it what it is.  It also is not true that she was the most qualified for the position, as the president claimed.  I‘m not certainly exactly what most qualified means when it comes to the court, but by any definition she wasn‘t it.  But that does not mean that she couldn‘t have served and she wasn‘t qualified to be a justice and that‘s where the final bit of double talk has been coming in, from many of her opponents mostly on the far right, some on the left. 

They were concerned about one thing, not her qualifications, not White House documents, not her constitutional (INAUDIBLE).  No, they wanted to know she would vote their way, period.  And the fact that she was too much of a wild card is the primary reason she is out. 

Joining me now is Mat Staver, president and general counsel with Liberty Council and Nan Aron, president of the Alliance for Justice.  Thanks to both of you for coming on the program.  Appreciate it.

Mathew, do you agree with me as to my reasoning? 

MATHEW STAVER, LIBERTY COUNSEL PRESIDENT:  Well I agree with you, Dan.  I think that she was not the most qualified.  I think that for whatever reason there was a lot of pressure out there.  The documents might have been one issue, but I think the real issue was the pressure and the lack of support among the conservatives in America and I think you‘re right.  I mean we need to be straight on this issue.  This is a debate that needs to go forward.  I always believe that we ought to be upfront on this debate.  This is a debate about the Constitution, how you‘re going to interpret it, and interpreting it...

ABRAMS:  And you‘ve been honest—Mat, you‘ve been honest with me on the show before.  You‘ve said...

STAVER:  Yes.

ABRAMS:  ... that you weren‘t convinced she was going to vote your way. 

STAVER:  No, that‘s right.  And I think that she didn‘t have the judicial philosophy that I‘m comfortable with that would have her vote in a way that I‘m also comfortable with, so I think that‘s what this battle is about.  We all know that.  It was the same battle and the discussion we had in 2000 with the election, same in 2004.  It hasn‘t changed in 2005.

ABRAMS:  Nan Aron, were you in support of her? 

NAN ARON, ALLIANCE FOR JUSTICE PRESIDENT:  Well, we hadn‘t made up our minds.  We didn‘t know enough information about Harriet Miers, and we were awaiting the hearings just as millions of Americans...

ABRAMS:  Are you scared now?  Are you scared you‘re going to end up with something a lot worse?

(CROSSTALK)

ARON:  I think this is a very grim, grim moment for our country and for our federal judiciary. 

ABRAMS:  Why? 

ARON:  I don‘t think the courts are the place to move a far right agenda...

ABRAMS:  But why is it a grim day? 

(CROSSTALK)

ABRAMS:  We don‘t know that the nomination is going to be someone who is you know so conservative that they‘ll be out of the main stream. 

ARON:  You‘re absolutely right.  We don‘t know, and certainly we‘re hoping that President Bush will consult, not make the decision tomorrow... 

ABRAMS:  So why is this a grim day?  So why is this a grim day?

ARON:  It‘s a grim day because we saw our president basically fold to the radical right wing of the Republican Party.  We saw organizations on the right with a very clear, distinct agenda, to turn the clock back on health and safety laws, on right to privacy, basically convince, persuade this president to do what they... 

ABRAMS:  But aren‘t you guys doing the same thing? 

(CROSSTALK)

ABRAMS:  But aren‘t you guys doing the same thing?  You‘re both sides

and this is why I like Mat Staver on this topic because he‘s honest about it.  He comes on, he says look, you know what, I‘m not convinced she‘s going to vote my way on this and as a result I‘m opposed to her, as opposed to these people who engage in this double talk where they say oh, you know, it was her qualifications and she had never been a judge and I‘m not sure she could handle constitutional issues, and blah, blah, blah.  I mean isn‘t the point that you weren‘t comfortable entirely with her because you were afraid that she wasn‘t going to vote your way? 

ARON:  Well, as far as we are concerned we had no idea how she‘d vote and in fact it was her White House background and work, which led or created the justification for her nomination in the first place.  It was very clear that George Bush and the radical right wing was not going to allow the country to know about her work at the White House and it seems to me...

ABRAMS:  Wait, how does the radical...

(CROSSTALK)

ARON:  ... background...

ABRAMS:  How does the radical right get blamed for not releasing the information?  I mean wasn‘t it both parties that wanted the information in the Senate?

ARON:  Well it was primarily the White House.  It was the White House who was saying you cannot know what she did while she was in the White House, working for President Bush.  They simply weren‘t going to disclose documents, records, or frankly have her answer any questions. 

(CROSSTALK)

ARON:  And I think on this level, both the left and the right are in agreement going forward, and I think that is a silver lining going forward, and that is both, I think all Americans now, Democrats and Republicans want the White House, want the nominee to be forthcoming, to have...

STAVER:  Well I think we agree with that. 

ARON:  ... record be debated.

ABRAMS:  All right.  Go ahead. 

STAVER:  We need to agree with that...

(CROSSTALK)

STAVER:  ... and I think that‘s where we can agree.  We need the—we need a trail; we need someone who both sides know.  Then we can have this debate.  We can be forthright.  We don‘t have to hide behind different political jargon.  That is a debate that has been long in coming.  I think it‘s a great opportunity for the president to redo what I think was a bad decision and I think he needs to move forward.  If he makes the right decision I think he will galvanize his conservative base.

ABRAMS:  Mat, are you concerned as a political matter though that by sort of caving here, whether you say it‘s Harriet Miers or you say it‘s the president, look, the perception is going to be that her nomination was pulled.  Are you concerned that this is going to show some sort of weakness on the part of this administration? 

STAVER:  No, I don‘t think so.  I don‘t think it‘s weakness to actually indicate that there‘s a mistake and move forward.  I think it‘s weakness...

ABRAMS:  But they are not admitting there was a mistake.  That‘s...

STAVER:  Well they‘re not admitting...

ABRAMS:  They are saying oh, it‘s about the White House documents. 

(CROSSTALK)

STAVER:  We understand it.  We all know what the attitude has been in the country since her nomination was announced.  Liberty Counsel was the first conservative organization to come out and publicly ask for her withdrawal on October 11 and since then the crescendo has been building.  We all know what this is about.  I think it‘s now a good opportunity for the president to do the right thing, to keep his campaign promises, to support justices that...

ABRAMS:  Who is your nominee? 

STAVER:  ... are like Thomas and Scalia.

ABRAMS:  Mat, who is your nominee?

STAVER:  Well I have a number of people...

ABRAMS:  Name them.

STAVER:  Certainly the president --  I think Edith Jones, Alice Batchelder, Priscilla Owen, Janice Rogers Brown...

ABRAMS:  All women.  All women.  You want a woman? 

STAVER:  Either one.  I think we want a good candidate.  We‘ve got Janice Rogers Brown, an African American female...

(CROSSTALK)

ABRAMS:  Most of those on the list there are going to be—have a lot of trouble...

STAVER:  Well Michael Luttig is...

ABRAMS:  He too—Luttig is also going to have a lot of trouble.

STAVER:  And Samuel Alito, you know whether they‘re going to have trouble or not is not the issue.  This is a nomination that‘s important.  This is why the president has been elected.  And I think he needs to move forward...

ABRAMS:  I think it should be an issue though...

STAVER:  ... debate needs to...

ABRAMS:  I think it should be an issue.  I think that you know the goal here should not be to treat this like a game where you say you know what, I know this person isn‘t going to make it through or it‘s going to wreak havoc on everything.  It should be for the sake of the country and...

STAVER:  Well I think it should be.  This is not a game and...

ABRAMS:  Yes.

STAVER:  ... it‘s a serious issue.  And I think it needs to move forward.  This needs to be a serious debate.

ABRAMS:  All right.

STAVER:  We‘re all concerned about...

(CROSSTALK)

ABRAMS:  I got to wrap it up. 

(CROSSTALK)

ABRAMS:  Mat Staver and Nan Aron, thank you so much for coming on the program.  Appreciate it.

Coming up, we talk to one of the top Republicans on the Judiciary Committee, Senator Orrin Hatch and to the ranking Democrat, Vermont‘s Patrick Leahy.

And for the first time we‘re seeing Scott Dyleski in court charged with first-degree murder in the killing of Pamela Vitale, the wife of legal analyst Daniel Horowitz.  We‘re also learning some new disturbing details about what police say he did after the murder. 

Plus it took two trials to convict Erik Menendez and his brother Lyle for killing their parents, now many years later he‘s speaking out about the killings and his jailhouse marriage.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SPECTER:  This is a sad episode in the history of Washington, D.C., which has a lot of sad episodes.  But the way Harriet Miers has been treated is really disgraceful. 

(END VIDEO CLIP)

ABRAMS:  Senate Judiciary Committee Chairman Arlen Specter reacting after Harriet Miers withdrew her nomination to the Supreme Court under heavy fire from conservative groups with both she and the White House insisting the make-or-break issue was Senate demands to see documents from her service as the president‘s White House counsel.

Senator Patrick Leahy is a Democrat from Vermont and the ranking minority member on the Judiciary Committee.  Senator, thanks very much for taking the time to come on the program. 

SEN. PATRICK LEAHY (D-VT), JUDICIARY COMMITTEE:  Glad to be with you.

ABRAMS:  All right, let‘s just get this out of the way.  You don‘t buy this notion that this is about any White House documents, right? 

LEAHY:  I don‘t think you‘ll find anybody in Washington who buys that.  No, sir, it‘s a nice pleasant thing.  I‘ve been here with enough different administrations, Democratic or Republican, you always have nice pleasant things to say when the name has been withdrawn.  The documents had nothing to do with it.  Best example is a lot of the same types of documents were withheld in John Roberts‘ nomination hearings for chief justice, and he was confirmed with three-quarters of the Senate, myself included...

ABRAMS:  Yes.

LEAHY:  ... voting for him.

ABRAMS:  Do you think the Democrats handled the Miers‘ nomination correctly?  Meaning, Harry Reid comes out sort of effectively standing next to her as soon as she‘s nominated and that must have made some hardcore conservatives say wait a second; what‘s wrong with her if Harry Reid is out there supporting her?

LEAHY:  I think this was handled poorly by the White House from day one doing their round robin telephone calls, assuring people on religious talk shows oh, don‘t worry, she‘s going to vote the right way.  You can go ahead and say that you have it on the highest authorities she‘s going to be OK.

Well even that‘s a—you shouldn‘t do that with anybody.  But as a Democrat or Republican, you shouldn‘t do that with anybody.  The fact is it was the Republicans who criticized her from day one.  Democrats (INAUDIBLE) the Democratic members of the committee said we‘ll wait.  We‘ll have the hearing.  We‘ll make up our mind after the hearing, which of course is the proper way of doing it.  You had a little clip on just before you came to me with Senator Specter, the chairman, saying she was treated disgracefully. 

ABRAMS:  Yes.

LEAHY:  Actually, he‘s right. 

ABRAMS:  Well what did you think of it?  You were apparently—you asked your famous question to her, who is your favorite justice?  And apparently she reportedly offered you something of a confusing answer.  What did you think of her as a nominee? 

LEAHY:  Well she of course answered Warren Berger, and I thought that was an interesting choice, but you know there‘s no right answer or wrong answer.  And I ask every nominee the same thing.  I thought that she had, as Senator Specter said, some work to do to get prepared for the hearings.  I was actually preparing today a number of questions I was going to send to her, as I do all nominees, saying here—look, here are some of the basic questions I‘m going to ask you so that you can be prepared. 

It won‘t be a surprise to you, mainly because I want to hear your answers.  But when I hear that some of the conservative Republican commentators, for example, are saying, one, you should withdraw her, two, why don‘t you just claim it‘s because of the request for documents.  But the request for documents came predominantly from Republicans.  The White House withheld the same kind of documents with John Roberts.  He was confirmed...

ABRAMS:  Yes.

LEAHY:  ... easily.  So, you know I don‘t know why the White House caved on this.  I—the president said very clearly he had no intention of withdrawing her name.  I‘m amazed he did.  I hope now...

ABRAMS:  Do you think she had the numbers?  Meaning, we were told that there was a phone call made last night where the administration was informed you just don‘t have the numbers in the Senate. 

LEAHY:  But nobody knows that.  (INAUDIBLE) anybody else.  Nobody knows what the numbers would be after you‘ve had the hearing...

(CROSSTALK)

ABRAMS:  Would the hearings have really made...

(CROSSTALK)

ABRAMS:  ... the hearings, yes, I mean there are going to be specific questions she‘s going to be asked to answer about her constitutional philosophy, et cetera, but she‘s not going to answer the hot button questions.  The questions really are just going to be does she seem smart? 

LEAHY:  Well no, there‘s more to it than that.  Everybody talks about the famous Robert Bork hearing.  Robert Bork in the beginning of the hearing, the vast majority of the people on that committee, Republicans and Democrats, were going to vote for him. 

ABRAMS:  Yes.

LEAHY:  It was a response to his answers of the questions.  That‘s why they voted against him.  Now the same thing here, who knows what was going to happen.  But I would hope though—the bottom line, I would hope that the president would not reward the same small facts of his party the forces of withdraw, reward them by giving them somebody on the ultra right. 

There are a lot of people, a lot of women, a lot of African Americans, a lot of Hispanics, who would get probably 95 votes out of the 100-member Senate, and the president could send them up.  Both Republicans and Democrats would vote for them, but more importantly, the country would see that it was America‘s interest not the special interests that we‘re responding to.

ABRAMS:  Senator Leahy, every time I‘ve heard a senator asked this question, I‘ve heard the same answer.  And the question is do want to see a woman?  And the response always is diversity is good on the court.  OK, diversity is good on the court.  We know that.  Do you want to see a woman nominated?

LEAHY:  I would like to see a court that‘s more reflective of America.  I think having more women in the court would be helpful.  In Canada, our neighbor, they have a nine-member Supreme Court.  Four of them are women, one of whom is the chief justice.  Worked out pretty darn well for them. 

ABRAMS:  Yes.  So you want to see a woman?

LEAHY:  I would like to, yes. 

ABRAMS:  All right.  Senator Patrick Leahy, thank you so much for your time.  We appreciate it.

We were expected to be joined by Senator Orrin Hatch as well.  He was held up by a last-minute vote.  Apologize for that. 

Coming up, 16-year-old Scott Dyleski loses the Goth look and shows up in court to be charged for allegedly killing Daniel Horowitz‘s wife, Pamela Vitale. 

Plus, remember Erik Menendez?  Speaking out—that‘s not him—for the first time about murdering his parents and getting married in prison to a woman who started writing to him while he was on trial. 

And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing sex offenders before they strike again.  Our search today is in Connecticut. 

Authorities have a warrant out for Samuel Pierce, 39, 5‘11”, 180, convicted of sexual assault in 1990, has not registered with the state.  If you‘ve got any information on his whereabouts, please contact the Connecticut Department of Public Safety, 860-685-8060.

We‘ll be back in a minute.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Scott Dyleski charged with killing Daniel Horowitz‘s wife, Pamela Vitale.  For the first time we see him in court.  First the headlines.

(NEWS BREAK)

(BEGIN VIDEO CLIP)

DANIEL HOROWITZ, FOUND WIFE MURDERED:  I know Pamela would never, ever you know, give up.  She would fight until the end, Dan.  No one could scare her.  She loved life, and I think that person almost lost.  I know what a crime scene looks like.  That‘s what I‘ve done for a living.  And I‘m telling you that Pamela fought like hell, and that person who attacked her I bet he feared that he was going to lose. 

(END VIDEO CLIP)

ABRAMS:  Daniel Horowitz.  We‘re back.  We‘re now getting a first look at the teen charged with murdering Pamela Vitale, the wife of legal analyst Daniel Horowitz, and we‘re also learning some disturbing details about what he allegedly did after the crime. 

In the past two hours 16-year-old Scott Dyleski was in court charged with first-degree murder.  His private lawyer stepped aside, making way for a public defender.  The judge imposed a temporary gag order, but before sending him back to his cell, the judge spoke to Dyleski. 

(BEGIN VIDEO CLIP)

HON. DAVID B. FLINN, CONTRA COSTA COUNTY SUPERIOR COURT:  Mr. Scott Dyleski, we got you by the right name? 

UNIDENTIFIED MALE:  (UNINTELLIGIBLE)

FLINN:  Mr. Dyleski, am I pronouncing your name correctly? 

UNIDENTIFIED MALE:  (UNINTELLIGIBLE)

FLINN:  ... Dyleski, thank you sir.  The complaint that was filed in this matter, Mr. Dyleski, was filed on October 21, (UNINTELLIGIBLE).  It alleges that you committed a felony in violation of penal code section 187, murder, on October 15, 2005 in Lafayette, California, in Contra Costa County and that you unlawfully with malice (UNINTELLIGIBLE) murdered one Pamela Vitale, a human being.  Now it‘s not time for your plea.  Your counsel has asked that you be given time for that, so I‘m not asking you to respond to that.  I‘m just advising you of that.

(END VIDEO CLIP)

ABRAMS:  On November 9, he‘ll be back in court to enter a plea.  Today more details trickling out about what police think Dyleski did after the murder, at least according to witnesses.  Now remember, the “San Francisco Chronicle”  citing law enforcement already reported the killer struck Vitale 39 times with crown molding, carved a t-shaped symbol into her back, drank a glass of water, washed his hands, showered in the home, left the weapon at the crime scene.  But now just-released court documents show that police believe Dyleski went to his girlfriend‘s house to have sex with her shortly after the murder. 

Joining me now is a former prosecutor and a friend of Daniel Horowitz‘s, Steven Clark, who was in the courtroom today, and Steven Greenberg, a criminal defense attorney.  Gentlemen, thanks very much for joining us.  Appreciate it.

All right.  Steve Clark, how was it in court today? 

STEVEN CLARK, FORMER PROSECUTOR:  It was very tense.  It was very emotional.  The Scott Dyleski that we saw in court today was very different looking than the image that we saw in all the photographs of this Goth-like teenager.  He was clean-shaven.  He had short hair.

He walked in very slowly because he was shackled.  He spoke very briefly, but in an unemotional and very flat affect.  He was arraigned on a first-degree murder charge and he—the judge asked him if he understood the charge and he did acknowledged that.  It was a very difficult thing for me to watch knowing Dan.  But it was what you would expect in this situation. 

The plea was delayed.  One other kind of interesting aspect is that the bailiffs in the courtroom left a seat open for Scott Dyleski‘s mother to sit to observe the proceedings but she never filled that seat.  That seat remained empty the whole time, so he had no support from his mother in the courtroom today. 

ABRAMS:  And Daniel and his family were not there, correct? 

CLARK:  They were not and I spoke to Dan yesterday and asked him if he was going to be attending and he said that he would not.  I think it‘s very clear that he entrust this case to the D.A.‘s office and to the police department.  And he doesn‘t want it to be a distraction that he would attend a proceeding like this. 

Obviously he‘s familiar with what goes on at these proceedings and just felt that he did not want to be a distraction.  It was too difficult.  It‘s still very—too raw for Dan to be here and I can understand why he wouldn‘t want to be here today. 

ABRAMS:  All right.  Steven Greenberg, we‘re just getting in these documents—these police documents, which lay out some disturbing details. 

I want to ask you how you think that they might come into the case.  The

police write I spoke with the subject by the name of—they name the

person—the person told me that he was with the suspect on the evening of

meaning the night of the murders—during the time he said the suspect arrived at their friend‘s residence with his girlfriend.

After spending approximately one hour with the suspect and his girlfriend, this person said the suspect and his girlfriend left and stated they were going to the girlfriend‘s house to have sex.  The guy additionally stated that the suspect called his mother prior to leaving.  During the conversation she informed him of the police activity in the area, then directed him to spend the night at his girlfriend‘s house.  That the road had been blocked off.

Does it come into evidence, you think, that he allegedly went and had sex with his girlfriend after the murder?

STEVEN GREENBERG, CRIMINAL DEFENSE ATTORNEY:  It may.  I would anticipate in this case that what you‘re going to see is some kind of an insanity defense saying that he had—because of the events earlier in his life with his sister and so forth gone off the deep end somehow and the whole Goth thing was a manifestation of that.  And if that‘s the case, then what the prosecution is going to try and say is that he wasn‘t insane.  And that his behavior afterwards—I heard earlier you say take a shower at the crime scene...

ABRAMS:  Yes.

GREENBERG:  ... and then normal behavior afterwards, which is what I would characterize that for a young man going with his girlfriend to have sex probably normal behavior, that that was in fact part of the cover-up.  That he understood what he did was wrong and that he‘s trying to cover it up and not have anyone know that anything was going on...

(CROSSTALK)

ABRAMS:  We had another defense attorney on this program who was saying no, no, no insanity, blame Daniel Horowitz even though there‘s no evidence to suggest he did it.  You could pose all sorts of questions about why he did this and why he did that.  You think that‘s going to be the strategy? 

GREENBERG:  I can‘t imagine that being the strategy.  From everything I‘ve seen in this case, they‘ve got a lot of physical evidence against this young man to bring forth.  What you‘ve got to do is very quickly you‘ve got to look at it and you‘ve got to see are we going to go with hey, it‘s the wrong guy, which doesn‘t look like a very good defense, but I only know what‘s been leaked and what‘s being leaked is from the police or prosecutors, and they want you to think they have a strong case or are you going to go with something along the lines of this kid didn‘t know what was going on.  You‘ve got a lot—unlike in most insanity cases, you‘ve got a lot of manifestations here of the kid going off the deep end.  Usually...

ABRAMS:  But going off the deep end doesn‘t get you insanity.

GREENBERG:  No, but you‘ve got the traumatic events in his life...

ABRAMS:  Yes.

GREENBERG:  You‘ve got a dramatic change in his behavior.  You might want to embrace that in this case.  Usually when you have an insanity defense, you‘re faced with saying, well, he was crazy.  There was something wrong, but nobody knew it.  Nobody saw it.  Here you‘ve got these outward signs, and I think you really have to embrace it. 

ABRAMS:  Yes, I don‘t know.  I mean the bottom line, Steve Clark, is we always talk about the insanity defense as if it‘s this great defense that gets off all these you know people who get off on it all the time.  It‘s almost always a losing defense.

CLARK:  It is.  It‘s a very difficult hurdle in California.  I think the defense will certainly order a psychiatric evaluation shortly to see what they are dealing with, with this kid, and I don‘t think an insanity defense will work to get him off.  If anything the defense may try to mitigate his conduct into a second-degree murder, something along those lines, but a pure insanity defense, this is a cold-blooded killer and I don‘t think...

ABRAMS:  Would you take a plea in a case like this on second degree, Steve?

GREENBERG:  Well it would depend on...

ABRAMS:  I‘m sorry.  You‘re both Steve.  Steve Clark first.

CLARK:  If I was a defense attorney and that was offered to me, I would certainly consider it very strongly.  That would mean he would do 16 to life. 

ABRAMS:  What about as a prosecutor? 

CLARK:  It would mean that in—as a prosecutor I would not.  I would not.  This is too horrific a crime, and I think Dan Horowitz and his family are entitled to know that this kid is not going to get out, ever.

ABRAMS:  Let me read you some more from this police document, which we‘ve just gotten.

Inside the duffel bag that they found inside a car, several clothing items containing traces of blood, a single glove was located with which had the presence of blood.  The conclusion was using a presumptive test.  It appears as though some clothing items are still missing as well as the stabbing instrument believed to have been used in the commission of the crime.  So it sounds, Steve Greenberg, like they‘ve still got some investigative work to do here as well.

GREENBERG:  I‘m sure they‘ve got lots of investigative work to still do, but it sounds like a very strong case.  I kind of had the opposite viewpoint of Mr. Clark.  I wouldn‘t be surprised knowing what I know about the victim‘s family in this case if they were in the position where they would say we don‘t want to see this all the way through because we don‘t want to go through this because we know...

ABRAMS:  Yes.

GREENBERG:  ... how awful a trial can be.  And let‘s be realistic here.  This kid is not going to get out of jail in 16 years.  He‘s not going to get out of jail in 25 years.  He‘s going to be an old man even on a second-degree case by the time he gets out of jail. 

ABRAMS:  All right.  Steven Clark and Steven Greenberg, thanks a lot. 

Appreciate it.

GREENBERG:  Thank you, Dan. 

CLARK:  Thank you, Dan.

ABRAMS:  Coming up, Erik Menendez for the first time opens up about his parents‘ murders, his relationship with his brother, Lyle, and his soul mate, the woman who married him in prison.  We‘ve got the details.

And Harriet Miers is out, but who is going to be the next nominee?  I‘m ready to offer up my suggestions; I hope the president is in his usual spot at this time watching the program about justice. 

Your e-mails abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  I respond at the end of the show.  And President Bush, if you want to respond to my suggestion, that‘s the e-mail address.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Erik Menendez in prison for the 1989 murder of his parents shares the secrets of his successful prison marriage. 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  He said well I wonder if this guy really is scared.  I mean I couldn‘t—I found it difficult to believe that he was so scared because I‘m the one that went to him in the first place.  And I‘m the one that went to him talking about the fact that I wanted to kill myself. 

(END VIDEO CLIP)

ABRAMS:  Remember Erik Menendez?  He and his brother Lyle murdered their parents in their Beverly Hills home back in the 1980‘s.  I think it was ‘89.  They‘re both serving life sentences for murder, but Erik Menendez says he is not the guy you may think he is.  In an exclusive interview with “People” magazine Menendez spoke out about life in prison, his brother Lyle, and his true love, the prison pen pal he married six years ago. 

In his first face-to-face interview since the murders, he told “People” magazine—quote—“people view me as this dark guy, a killer.  Emotionally that‘s been very, very hard to deal with.  It‘s always been a struggle for me to realize that I‘m the nation‘s villain.  I‘ve been portrayed as this dark sinister person.  It‘s sad for me.  I‘m really not.  I‘m a good person.  I like who I am.

Joining me now is Champ Clark, Los Angeles correspondent for “People” magazine who got the exclusive with Erik Menendez featured in this week‘s issue.  Thanks a lot for coming on the program.  Appreciate it.

All right.  How does he seem to be holding up? 

CHAMP CLARK, “PEOPLE” MAGAZINE:  How does he—oh, he‘s holding up.  You know, how would you hold up if you were in prison for life?  He comes off when you first meet him, he seems, first of all, I should say he is not the vulnerable or seemingly vulnerable teen that you remember from the trials. 

He‘s a grown man now.  He‘s quite handsome, seems to be very intelligent, well spoken, articulate, and very personable.  So it‘s a kind of disconcerting feeling actually when you‘re sitting there talking to him knowing why he‘s in prison, and it‘s very sad as well because you look at this guy and you think he could have been anything.  He could have been anything that he wanted to be...

ABRAMS:  And he admits—I mean he‘s not—he is admitting to you from your piece that he needed to go to prison?

C. CLARK:  Oh, absolutely. 

ABRAMS:  Yes.

C. CLARK:  He says—yes, he says he needed to go to prison to become the person he is now.  He refers to himself as a compassionate person, someone who only wants to good in life, and in fact he said he‘s someone who wouldn‘t hurt a fly and he is no longer a danger to society. 

ABRAMS:  I spoke to his wife today briefly.  It is sort of hard to believe that he has become married in prison.  He met her in prison.  Let me read you one of the—I‘ll read one of the quotes from your article.

Tammi‘s love has propelled me to become a better person.  I want to be the greatest possible husband to her and this affects the choices I make every day in prison.  Tammi has taught me how to be a good husband.  There‘s no makeup sex, only a 15-minute phone call, so you really have to try to make things work. 

Tell us how they ended up getting married.  I mean she was writing to him a lot, right?

C. CLARK:  Right.  Tammi first started writing Erik during the very first trial.  She sent him a letter and in fact Erik said that he received thousands of letters at that time and that this one letter, something spoke to him.  And he set it aside and decided to write back.  And really from that point—in fact, Tammi was married at that time, and her husband subsequently died, but—and it was after the death of her husband that they really started to forge this relationship. 

ABRAMS:  Champ, the picture we just saw of Erik Menendez, if we can show that again, with Tammi, that was taken when? 

C. CLARK:  You know I actually didn‘t see the picture. 

ABRAMS:  OK.

C. CLARK:  And I don‘t have my glasses on, but it‘s very similar to a picture that was taken this Saturday, this past Saturday.  I can‘t really tell if it‘s the same one, but we took a number of pictures in the prison visiting room. 

ABRAMS:  They are allowed to do what?  I mean they are not allowed to have conjugal visits, right, but they can touch? 

C. CLARK:  No.  Well really they are allowed to hold hands.  When taking the pictures, there‘s a little setup there with a kind of a Swiss Alps background and they can hug or hold there, but otherwise they‘re really limited to holding hands, and they get a kiss when they first see each other at visitation and then when it‘s over. 

ABRAMS:  Tammi‘s going to be on this show in the next week or two, but what does she get out of this? 

C. CLARK:  She gets a husband she loves and a relationship that she feels is something that is very fulfilling to her.  She... 

(CROSSTALK)

C. CLARK:  Absolutely.

ABRAMS:  Yes.

C. CLARK:  Well, she recognizes that it‘s a very...

ABRAMS:  Yes.

C. CLARK:  ... odd situation, and in fact, the whole time during what I guess you would call their courtship, she said every time she was driving to the prison to visit with Erik she would say to herself what am I doing? 

ABRAMS:  Yes...

(CROSSTALK)

ABRAMS:  I‘ll ask her about that...

C. CLARK:  Sure.

ABRAMS:  ... when she‘s on the program.  On Lyle Menendez, his brother, you quote him saying, we haven‘t seen each other in nine years.  I haven‘t talked to Lyle in nine years.  We‘re able to correspond.  He‘s my brother and I‘ll always love him.  My first priority now is my wife and my little girl.  I‘ll always love him deeply.  We‘ve been apart for so long we no longer have shared experiences. 

When he talks about his little girl, that‘s her little girl.  We should just point out it‘s not his...

C. CLARK:  Yes, although his stepdaughter really...

ABRAMS:  Right.  So does he write to Lyle Menendez a lot? 

C. CLARK:  They do write to each other, but Erik said that all their correspondence is read by prison officials and vetted and so even in that situation they really can‘t communicate in the way that they would like to communicate.

ABRAMS:  All right.  Champ Clark, “People” magazine, thanks a lot for coming on the program.  Appreciate it. 

C. CLARK:  Thank you. 

ABRAMS:  Coming up, with Harriet Miers out as President Bush‘s Supreme Court nominee, it‘s time to start thinking about who the next choice might be, should be.  I‘ve got a pick. 

In Kansas, the latest state to try to impose a tax on adult material, AKA porn, much like cigarettes and alcohol hoping that 10 percent extra will cut down on sex crimes.  Last night I said I don‘t see the connection.  A lot of you e-mailed in and shocker, not everyone agrees. 

And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to help find missing sex offenders before they strike again.  This week we are working with Connecticut. 

Authorities looking to track down Daniel Guzman, 24,  he‘s 5‘5”, 145, convicted for sexual assault in ‘98.  Authorities have issued a warrant for him for not registering with the state.

If you‘ve got any information, 860-685-8060.

Be right back.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—in the wake of Harriet Miers pulling her nomination for the Supreme Court, you would think everyone from senators to pundits would have someone in mind he or she thinks should fill the spot, someone with credentials, someone who can satisfy the conservative base while not completely infuriating the left.  But apart from Senator Lindsey Graham, it seems most are skittish about naming a name. 

Not me.  I‘ll throw one out there, one I think should be acceptable to everyone, an attorney with unassailable credentials.  It‘s someone I know and like.  Ted Olson, former solicitor general for President Bush, a well respected appellate attorney, assistant attorney general to President Reagan.  Probably best known for winning Bush v. Gore before the Supreme Court in 2000. 

He‘s a solid main stream conservative with a long paper trail.  He‘s argued dozens of times before the Supreme Court, well respected in the legal community.  Some on the far right may say that at 65 he is too old.  Come on.  Considering that many justices serve well into their 80‘s and 90‘s, that should be a non-issue.  We‘ve heard that about another I think well-qualified nominee as well, Judge J. Harvie Wilkinson, former chief judge of the Fourth Circuit.  I like him for the spot as well. 

If Olson were to be confirmed, six of the current justices would still be older than him.  Another possible issue, that like Harriet Miers, he was the president‘s lawyer.  True.  But there‘s no executive privilege here.  Olson worked for Bush when he was a candidate, not the president.  And as for the work he did for the administration as solicitor general, the Senate will have more than three years worth of very public Supreme Court briefs to pour over.  All clearly endorsed with Olson‘s name. 

As for his judicial philosophy, sure, some liberal groups may whine Olson‘s argued against affirmative action.  He‘s represented the right wing American spectator magazine, the list goes on.  Too bad it‘s the president‘s pick and the Senate is the Republican majority.  Furthermore, Olson has shown more than anything else that he‘s reasonable and rational.  Not an ideologue.

In an April “Wall Street Journal” column, he asked fellow Republicans to take a well advised step back and stop launching personal attacks on Supreme Court justices, reminding them that the United States independent judiciary is the envy of the world and speaks to the American Bar Association this past summer.  He won the nation‘s lawyers, that once the Supreme Court decides a case, it should be—quote—“off the table for the political process.”  I‘m hoping the political process doesn‘t keep this lawyer‘s lawyer, this well qualified nominee off the nation‘s highest bench. 

Coming up, I said I have not seen any connection between pornography and sex crimes.  A lot of you disagree.  Your e-mails are next.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night we debated a tax on the sale of sexually explicit materials.  The proponents even connecting pornography to sex crimes.  I said I haven‘t seen a convincing study that suggests a correlation between the two.  I thought there were constitutional problems as well. 

Rosemary Bear in Covina, California, “No connection between porn and sex crimes?  It‘s like you‘re telling me that there‘s no connection between advertising and product sales.”

University of Chicago student Paul Ma says he‘s been studying the relationship between porn and crime, says there‘s only one study he knows of doesn‘t support that theory.  “There‘s currently one paper in existence suggesting that porn is being substituted for sex crimes.”

Mearl Rose in Antioch, California, “Saying that people commit sex crimes because you can find porn in their homes is certainly no cause and effect.  I dare say even more sex criminals would have milk in their fridge.”

Finally, Terry Mellott in Renton, Washington, “A firearm is found in the majority of murderers‘ homes.  Does that mean owning a firearm leads to homicide?”

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

Remember, tomorrow is a big day because we may be hearing something from the special prosecutor in that CIA leak case.  Could hear about indictments.  No indictments.  Whatever it is you know this is the place to come to.  The program about justice. 

Thanks for watching.  Good night.  “HARDBALL” is up next.  See you tomorrow.

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