All In with Chris Hayes, Transcript 03/13/15

(BEGIN VIDEOTAPE) CHRIS HAYES, MSNBC HOST (voice-over): Tonight on ALL IN -- BRYAN FISCHER, AMERICAN FAMILY ASSOCIATION: The bottom line here, ladies and gentlemen, is Jeb Bush is pro-gay. HAYES: The anti-right versus Jeb Bush. FISCHER: I think this disqualifies Jeb Bush from consideration for the GOP nomination. HAYES: Tonight, why it appears that 2016`s allegedly gay-friendly candidate is starting to pander to the base. Then, what is Rudy talking about? RUDY GIULIANI, FORMER NYC MAYOR: If an African-American president stood up and said -- I hate to mention it because of what happened afterwards -- the kind of stuff that Bill Cosby used to say. HAYES: Plus, new video from the Boston bombing trial. Can Dzhokhar Tsarnaev`s surprising defense strategy possibly work? And, hide your minions. (MUSIC) HAYES: Marvin Gaye`s family sets its sight on a new Pharrell William song. The debate over "The Blurred Line" verdict continues. And the man on cowbell from Marvin Gaye`s band gives me his thoughts on the verdict. ALL IN starts right now. (END VIDEOTAPE) HAYES: Good evening from New York. I`m Chris Hayes. Jeb Bush is building a presidential campaign that reflects the fundamental contradiction at the heart of the Republican Party`s handling of an issue that was once a unifying source of strength, gay rights. The former Florida governor who today visited the first of the nation primary state of New Hampshire is giving a speech right now, was hailed by BuzzFeed last month as the 2016 campaign`s gay-friendly Republican, thanks to who he has hired. Bush`s campaign manager in waiting, David Kochel, has been an outspoken advocate of marriage equality. His top communications aide, former RNC spokesman Tim Miller who is well-liked and openly gay. That`s not significant. Remember the 2012 campaign, Mitt Romney`s national security spokesman Richard Grinnell stepped down after less than two weeks at least in part it seemed because of the massive amount of blowback Romney was getting from the social conservatives from hiring a openly gay adviser. Now, just three years later, Jeb Bush has hired an openly gay top staffer, along with a number of same sex marriage supporters. But, this is a big "but", this is still the GOP, the party of likely presidential candidate Ben Carson who recently offered this theory on human sexuality. (BEGIN VIDEO CLIP) INTERVIEWER: You think that being gay is a choice? BEN CARSON: Absolutely. INTERVIEWER: Why do you say that? CARSON: Because people who go into prison go into prison straight, and when they come out gay. So, did something happen while they were in there? (END VIDEO CLIP) HAYES: Just asking the questions. Carson later apologized. But as for Jeb Bush, supposedly among the best Republican on gay rights, his political action committee just hired evangelical attorney Jordan Sekulow as a senior adviser, the son of longtime gay rights opponent Jay Sekulow, Jordan Sekulow was executive director of the Pat Robertson-founded American Center for Law and Justice, which has worked through a local outpost to keep homosexuality a criminal offense in Zimbabwe and elsewhere. And here at home, helped draft a federal Defense of Marriage Act banning same sex marriage, filed an amicus brief supporting efforts to keep sodomy illegal in Texas. Hiring Sekulow prompted Dan Savage to ask how closely Bush`s gay communication aide Tim Miller will work with Sekulow and Miller sleeps at night. Miller told ALL IN he had no response to that tweet. He also pointed to us to Bush`s statement after Florida begun allowing same sex marriage, which reads in part, "I hope we can also show good respect for the good people on all sides of the gay and lesbian marriage issue." Respect or no, let`s be clear, Jeb Bush remains a stanch opponent of same sex marriage, which he says should be left to the states. That means if you`re gay, you live in, say, Georgia or Mississippi or any other states, where same sex marriages are still being barred, pending the Supreme Court ruling on this matter, Jeb Bush doesn`t think you should have the right to get marriage. Of course, Bush is far too tolerant for social conservatives like Brian Fischer of the American Family Association who is incensed that Bush has hired staffers who support gay rights. (BEGIN VIDEO CLIP) FISCHER: But the bottom line here, ladies and gentlemen, is that Jeb Bush is pro-gay. Jeb Bush now has come out very clearly and unapologetically and without question as an advocate for the homosexual agenda. I will tell you quite frankly, I think this disqualifies Jeb Bush from consideration for the GOP nomination. I think that there is no conservative, there is no conservative who can look at these hires, and say that Jeb Bush is the guy who`s going to representing pro-family values as the president. (END VIDEO CLIP) HAYES: Joining me now, MSNBC contributor Josh Barro, correspondent for "The Upshot" at "The New York Times". Josh, I think this is going to be interesting to see how this circle is squared in the 2016 campaign as all of these changes happen in public opinion more broadly, but the GOP base is still the GOP base. JOSH BARRO, MSNBC CONTRIBUTOR: Well, I think a lot of the circle is likely to get squared by the Supreme Court. HAYES: And so key. BARRO: Yes, if we get a ruling in the next few months legalizing gay marriage in the whole country, this issue will be mostly taken off of the table. The pattern that we`re seeing on most states where either state supreme court or the federal courts in the state legalize the same-sex marriage, it`s been Republican officials basically saying, well, I tried and there`s nothing more I can do. I mean, Chris Christie walked away without appealing it through the courts that he could have. So, you have seen the Republican officials breathing a sigh of relief when the issue is taken away from them. I think it`s going to happen in the federal field. You will have these residual issues of who has to bake a wedding cake for whom, but those are largely regulated by state government. So, there maybe some talk about it in the campaign. But I think gay issues will loom much smaller in this campaign than they have in any -- in recent years. HAYES: This is such a key issue. I mean, this has gone from the fight Republicans wanted to pick, to a fight they are happy they are about to lose. I mean, the resounding substantive and the ideological repudiation of opposition to gay marriage is going to be the biggest possible political boon to Republicans, because they aren`t going to have to walk through this campaign with this massively unpopular position. BARRO: I think there are a lot of Republicans, especially people who work as Republicans for a living, that are happy that they are about to lose this fight. But I also think there are a lot of people who sincerely oppose gay marriage who are really resigned to the fact that they are going to lose this fight. I think it is not like abortion where it`s something that people in the Republican base are so morally outraged by abortion, and they say the public opinion on abortion has not really moved very much over the last 40 years. They still see it as a live fight. That will keep being fought over. I think people, even if they strongly oppose gay marriage, a lot of them are realizing that the public is against them, that this is not a fight they can win politically, and it`s one they`re willing to give in on in a lot of cases. HAYES: We are having this debate about whether the Supreme Court ruling is going to be Roe v. Wade, or Loving v. Virginia. Loving v. Virginia, of course, saying it`s unconstitutional ban interracial marriage, Roe v. Wade, of course, there is a constitutional right to an abortion, one of which , Loving versus Virginia, there`s no one running around now saying they need to overturn it, Roe v. Wade still the point of the cultural battle 30, 35 years later. BARRO: Yes, I mean, I think you can just look at the polls and see that it`s likely to be Loving. And you can see it in the behavior of people like Jeb Bush. I mean, hiring an openly gay communications director, it`s not just any top staffer. It`s a top staffer who will be seen as a public voice very frequently. HAYES: All the time, on the cable news. (CROSSTALK) BARRO: Yes, will have to deal with outside groups, and it`s something that I think would have been -- would have gotten a lot of the blowback four years earlier, as we saw with Rick Grinnell. Now, I think Rick Grinnell had -- HAYES: Had other issues. BARRO: -- with a lot of people about a lot of things. But certainly a big problem -- HAYES: That guy -- BARRO: Yes, exactly. But a big problem for the campaign for him was being openly gay, and I have seen very little blowback. I mean, it`s telling that you have to go to Bryan Fischer for these quotes. HAYES: That`s right, that`s a good point. BARRO: Because Bryan Fischer -- HAYES: Who does not have much of a constituency. BARRO: Right. He`s this outrageous talk radio host, who I only ever see quoted by liberals being outraged by Bryan Fischer. As far as I can tell, there are no Bryan Fischer fans -- HAYES: He`s secretly is on our payroll. BARRO: I`ve never had a conservative tell me they love listening to Bryan Fischer. HAYES: The other thing I think that`s key to understand here about what Jeb is doing and how he is doing this, is that for all these reasons, his family name, his brother`s connection with evangelicals, the amount of fundraising prowess, he can afford to stiff arm the base a lot more than any other candidates can and that`s going to come in much really handy down the line. BARRO: I think we will see how much he can afford to stiff arm the base. HAYES: That`s the big test. BARRO: You know, a lot of these hires he`s made, he is basically hiring most people who are worth hiring in the Republican staff`s base right now, or he`s trying to. But he`s starting from position of strength, but I think he might be a little bit too cocky in certain ways. I don`t think this is the issue where he`s going to have a big problem with the base. HAYES: Immigration and Common Core. He is talking about Common Core right. We are like dying to cover Common Core, and we`re going to do that, I promise, when we figure out how to show it on television. Josh Barro, thank you very much. BARRO: Thanks. HAYES: With defeat in the air on marriage equality, as Josh was saying, Republicans have fallen back to a new swath of terrain on which they could continue to wage culture war. The idea you should be able to use religion to opt-out of onerous requirement to treat people equally. Laws allowing religious exemptions have been passed in at least 20 states, with many written by a small cadre of conservative groups in Washington. Now, in Georgia comes perhaps the most e egregious such law yet. The Georgia Religious Freedom Restoration Act designed to, quote, "provide for the preservation of religious freedom." What does this mean exactly? According to "The Daily Beast", restaurants could refuse to serve gay or interracial couples, city clerks can refuse to marry interfaith couples, hotels could keep out Jews, housing developments could keep out black people, pharmacies could refuse to dispense birth control, banquet halls could turn away gay weddings, schools could specifically allow anti-gay bullying, and employers could fire anyone for any religious reason. Joining me now, Democratic Georgia state representative, Stacey Abrams. She is the Georgia house minority leader. Representative Abrams, that sounds hyperbolic to me. Can the bill possibly be as bad as described in that quote? STATE REP. STACEY ABRAMS (D-GA), HOUSE MINORITY LEADER: I don`t think it`s as bad, but it`s really, really close. One of the things that`s most interesting yesterday, there was an open letter from Wiccans saying thank you to Josh McKoon, the author of the legislation, for validating their religion and allowing them to express their religious freedom. So, I think the scope of this bill is really not understood just yet. HAYES: Well, what exactly is the idea here, right? I mean, religious freedom sounds perfectly fine. I mean, but how big is the exemption carved out for folks to cite the religion to not do something, perform some service in the public space? ABRAMS: The problem with SB-129, it`s a martyr in search of an oppressor. This is a bill that essentially says, if you is a religious belief, but we don`t define religion, then you don`t have to comply with the certain laws, unless the government can prove that it is really, really necessary. So, it sets a different standard in the state laws than we currently have, and I think it`s unnecessary because we have federal protections that are already in place and can meet any of the examples that had been brought forth by the authors of the legislation. HAYES: We saw the business community in Arizona rally to get Governor Brewer to veto the religious freedom in Arizona. What is the current state of play in the politics of this legislation, which as I understand has a broader scope than almost anything that`s been passed anywhere else? ABRAMS: It does. The business community I think has been watching its movement. The House actually just adjourned our crossover day, and so our version of the house did not move out of the committee. The Senate version did move and crossed over and sent to the committee that just refused to hear our version. So, I think that the pressure being brought to bear by the business community, by the LGBT community, by the faith community that really does oppose this bill in some quarters, I think those will combine to stop the bill. But, you know, it`s not over until the last day of the session. HAYES: Do Georgia Republicans view this fight around the religious freedom as a fight where they have the wind at their backs, in the way that they might have viewed a marriage equality fight, say, 10 or 12 years ago? ABRAMS: I think some of them do. I think the hard core group that is really pressing the bill believes that, but I think to your point, if you look at the business community, if you look at moderate Republicans, at business-minded Republicans, they saw what happened in Arizona, they heard about the businesses pulling out, franchises saying we`re not going to with come, and I think that the business community, and the Republican part of the party that remembers that they`re supposed to be pro-business will clearly eschew trying to move this bill forward. HAYES: Finally, how does it look as this issue plays out as we head into 2016, as we await the Supreme Court to weigh in on this? How does this issue look and resonate to someone in the state of Georgia, the red state of Georgia, dominated by conservatives and the Republicans? How do you think this is going to play out over the next year? ABRAMS: I think that this will actually have its death knell by the end of April. When our legislative session ends, I believe that this will be the end of this conversation. I think it`s the last gasp ahead of what`s going to happen with the Supreme Court, and most people on both sides of the aisle believe that the Supreme Court will validate gay marriage. And while this, I think, is an expansive bill that goes with beyond the four corners of we hate gays, I think the expansive nature has terrified enough people that whether you are pro-LGBT or not, nobody wants this bill to be atoned here in Georgia, because we understand that it has the ability to harm not only the communities they are attacking, but to harm a vast range of communities that we have not anticipated. HAYES: Georgia House Minority Leader Stacey Abrams, thank you. All right. Self-appointed America`s mayor said this week that President Obama should be more like Bill Cosby. He did that. What the heck is going on with Rudy Giuliani? We`ll talk about it, ahead. (COMMERCIAL BREAK) HAYES: And now, this Vine from Vice President Joe Biden. (BEGIN VIDEO CLIP) JOSEPH BIDEN, VICE PRESIDENT OF THE UNITED STATES: Yes, yes, I do a million of these a day, so just give me five. (EN VIDEO CLIP) HAYES: Can we talk about how great it is that the Union Joe Biden is now affecting the way that the real Joe Biden affecting the real Joe Biden presents his public image? The Vine is part of the First Lady`s Gimme Five Challenge to celebrate the fifth anniversary campaign. And the vine says that the first lady is encouraging Americans across the country to give high fives when they see someone making healthy choices, to challenging everyone to give me five things they`re doing, to eat better, be more active, lead a healthier life. There may be a big scandal brewing, though, because some people on the Internet who are paying very close attention have discovered Joe Biden actually only did four bicep curls, not five. So, if he`s actually going to run against Hillary Clinton, weight-gate is probably the best news Clinton`s had all week. (BEGIN VIDEO CLIP) BIDEN: Yes, I could do a million of these all day. HILLARY CLINTON, FORMER SECRETARY OF STATE: Wow! (END VIDEO CLIP) (COMMERCIAL BREAK) HAYES: Fresh off his assertion last month that Barack Obama does not love America, former New York Mayor Rudy Giuliani has another hot take on the president, he should be like another famous black man -- wait for it -- Bill Cosby. (BEGIN AUDIO CLIP) GIULIANI: Seventy percent of the homicides in New York City are committed by African-Americans. That there are many, many extremely many understandable reasons for it historically and environmentally. And if an African-American president stood up, and said -- I hate to mention it because of what happened afterwards -- the kinds of stuff that Bill Cosby used to say. This is our responsibility. (END AUDIO CLIP) HAYES: He hates to mention it because of what happened afterward. But make no mistake, what happened afterwards was the press finally paying attention to public allegations against Bill Cosby which dates back to 2005, in which he has consistently denied, but then last year, with literally dozens of women coming forward with allegations that they were drugged and raped by the comedian, allegations that if true paint a monstrous picture of predatory behavior, it became impossible to ignore. And as a result, though he`s never been charged and he`s continued to deny all allegations against him, Cosby has experienced a pretty epic fall from grace. What happened before was most of us pretending we`ve never heard of the allegations against Bill Cosby, he held himself up as the arbiter of moral probity in the black community. (BEGIN VIDEO CLIP) BILL COSBY, COMEDIAN: We knew how to fight, we knew how to protect our children, protect our women. Today, in lower, lower economic communities, some people, and not all, some people are not contributing to that protection, and the character correction has not happened. Many times, it`s the TV set of BET or the videos played, kids look at it and they admire it. (END VIDEO CLIP) HAYES: According to Rudy Giuliani, that Bill Cosby, the one who at that point had already been publicly accused of sexual assault, the one who now stands accused of sexual assault as recently as 2008, that`s whose example President Obama should follow. I`m joined by Congressman Hakeem Jeffries, Democrat from New York, who represents parts of Brooklyn and Queens. Congressman, what do you think of former Mayor Giuliani`s suggestion? REP. HAKEEM JEFFRIES (D), NEW YORK: Well, Chris, good evening. This falls under the category of, you cannot make this stuff up. I mean, this is another Rudolph Giuliani divorce from reality moment. I just can`t really figure out. He`s completely lost control. Now, I had the opportunity to survive eight years of Rudy Giuliani as mayor, and he was widely known for his mean-spiritedness at this point. But this is something very different. This almost requires sort of a clinical intervention in terms of his reference to Bill Cosby of all people at this moment. The facts here are important, and clearly, Rudolph Giuliani has not paid attention to the facts. Since President Obama first set foot at 1600 Pennsylvania Avenue, he has consistently talked about responsibility within the African-American community, particularly as it relates to black fathers -- black fathers in some instances who had not been actively involved in their children`s lives. This took place with some degree of regularly every Father`s Day. He would regularly appear in a black church. In fact, Chris, there were some African-Americans who accused the president of being too harsh in not recognizing the fact -- HAYES: There were many who said that this was -- he was playing this ridiculous game of responsibility politics that harkened back to the pound cake speech of a man named Bill Cosby, when he was touring around the country telling people to pull their pants up. JEFFRIES: That`s absolutely correct. And so, the president has been extremely balanced in his approach. He recognizes that there are historic issues. He recognizes that the overwhelming majority of people in the African-American community are law abiding citizens who contribute to this great country. There is a small fraction of individuals who haven`t been displayed personal responsibility, who`ve engaged in irresponsible acts. But that`s no different in many ways than almost any other community. Rudolph Giuliani consistently fails to point out that 80 percent of the violent acts against white Americans are committed by white Americans. Certainly, we`ve got a black on black violence issue that we`ve got to deal with, it`s very complex. Many of us are focused on trying to resolve it. But this race-baiting that Rudolph Giuliani continues to engage in, this taunting of the president, is certainly beneath the mayor`s former office that he held and really has shown a sad, pathetic degradation in terms of his public persona. HAYES: What do you think he`s doing? Really, I`m curious about the role that Rudy Giuliani had seemed to carve out for himself in the last six months, as the kind of -- as the kind of scourge of the Black Lives Matter movement, as the person who`s on the other side of the protesters that we have been seeing across the country, you know, sort of demanding equality and accountability? JEFFRIES: Well, you know, this is not inconsistent with Rudolph Giuliani`s unfortunate history. As you probably will recall, Chris, in that first campaign in 1989 when he ran against David Dinkins, you know, there was a lot of the concern with the coded language that was used, not just by candidate Giuliani, but by many of his supporters. He infamously appeared at a police riot that took place in front of city hall. It was widely characterized as such during the Dinkins administration when some members of the NYPD gathered at city hall, some in mob-like fashion, Rudolph Giuliani gave a red-meat type of speech there. And there have been many other instances where he has displayed insensitivity or irresponsibility even during his mayoralship. HAYES: Yes. JEFFRIES: What seems to be happening right now is just this quest for relevance, and it really is unfortunate in the manner in which he has communicated over the last few weeks. HAYES: Congressman Hakeem Jeffries, thank you very much. JEFFRIES: Thank you. HAYES: Fresh off of the victory in the "Blurred Lines" trial, Marvin Gaye`s estate may have their eyes set on another Pharrell William song. That`s ahead. (COMMERCIAL BREAK) HAYES: Tonight, evidence of another protest movement of federal terrorism authorities have taken a interest in. This one, Black Lives Matter. The nationwide movement borne out of the shooting of unarmed 18- year-old Michael Brown in Ferguson, Missouri, spread across the country after a series of unarmed black men were killed at the hands of police, Eric Garner, Tamir Rice, who was a 12-year-old child. Last week, Tony Robinson in Madison, Wisconsin. Now, one such protest took place in last December when over 1,000 people took over the Mall of America in Bloomington, Minnesota, during the peak of holiday shopping season. (BEGIN VIDEO CLIP) PROTESTERS: Black lives matter! Black lives matter! TV ANCHOR: Hundreds of protesters take over the rotunda at Mall of America. They`re demanding change in police behavior, as part of the Black Lives Matter movement. The numbers just released showed that the Bloomington Police Department arrested 12 protesters at the Mall of America today. The mall told the protesters they could not enter the building because it is a private business. They did offer a neighboring parking lot, but it didn`t stop hundreds from heading inside. They were there until they were forced out by the police. (END VIDEO CLIP) HAYES: Now, the stand in produced a surreal scene in which the mall posted a sign reading, quote, "This demonstration is not authorized. It is clear violation of Mall of America policy. We expect all participants to disperse at this time. Those who continue to demonstrate will be subject to arrest." Along with that warning, came a heavy law enforcement presence. Local police and sheriff`s officers were on the scene as well at least 100 private security guards who were hired by the mall. But they weren`t the only law enforcement agencies involved in monitoring the nonviolent demonstration. The Intercept reports today that, quote, "members of an FBI joint terrorism task force tracked the time and location of the mall protest." Intercept obtained an email from a local police officer and task force member to a fellow officer and task for member with information from a source about the date and time of the protest. The FBI joint terrorism task force created in 1980 and based in 104 cities is described on their website as, quote, "our nation`s front line on terrorism." In a statement to All In, an FBI Minneapolis spokesperson told us the officer, quote, "had a law enforcement obligation to pass along the information to the Bloomington Police Department, as the information pertained to potential criminal activity." That potential criminal activity was, the FBI told the Intercept, vandalism. But it`s far from unheard of for authorities to take an interest in protest movements. In Boston, in the fall of 2011, for example, even as the U.S. government was receiving warnings about alleged Boston Marathon bomber Tamerlan Tzarnaev, according to an NBC News investigation, a key Boston police counterterror intelligence united, funded with millions of dollars in U.S. Homeland Security grants, was closely monitoring anti-Wall Street demonstrations. Less than two years later, three people were killed, more than 250 were injured when two bombs went off at the Boston Marathon. The trial for the surviving Tzarnaev brother accused in the bombing is underway in Boston. More on the riveting surveillance footage that`s been put in front of the jury next. (COMMERCIAL BREAK) HAYES: Today, a motion to dismiss charges against Dzhokhar Tsarnaev was denied and the trial will resume on Monday. This week, jurors were shown previously unreleased footage purporting to establish the full extent of Dzokhar Tsarnaev`s culpability in the Boston Marathon bombings of April 2013. NBC News justice correspondent Pete Williams filed this report. (BEGIN VIDEOTAPE) PETE WILLIAMS, NBC NEWS CORRESPONDENT: Prosecutors say these videos never before shown publicly were gathered from dozens of surveillance cameras. Assembled together, the FBI says they show Dzhokhar Tsarnaev with his older brother walking along the marathon route with bombs in their backpacks. The FBI says a key piece of evidence is surveillance video aimed at this spot on Boylston Street. They say it shows Dzhokhar Tzarnaev walk up with a backpack, make a cell phone and then leave without the backpack. Seconds later, a second bomb goes off where he had been standing. That is him circled, the FBI says, standing in the crowd. After he is there awhile, prosecutors say, his backpack can be seen resting on the sidewalk. A few minutes later, Tsarnaev makes a quick phone call to his brother, the FBI says, and walks away. Then comes the searing white hot flash of the bomb. Witness after witness described what followed as chaos. As the first responders jumped over barriers and rushed toward the blast site to help the injured, the FBI says this surveillance camera captured the image of Tzarnaev running away from the scene. Barely half an hour later, with victims in the hospital facing amputation prosecutors say, he was calmly shopping for milk. And the next night, the government says, another surveillance camera showed Tzarnaev and a friend checking into a campus gym for a workout. Pete Williams, NBC News, Boston. (END VIDEOTAPE) HAYES: Tzarnaev has been charged with 30 counts, including conspiracy to use a weapon of mass destruction resulting in death, and conspiracy to bomb a place of public use resulting in death. Tzarnaev has plead not guilty, but in an opening statement Tzarnaev`s defense attorney Judy Clarke said, quote, it was him. New York Times explained her tactic this way, "defense lawyers in the most challenging death penalty cases often start by admitting a certain degree of guilt then arguing that someone else deserves more of the blame. (inaudible)to explain that unusual strategy, let`s bring in former public defense Dave Feige, professor at the National Criminal Defense college and author of Indefensible. All right, I have to say, Dave, I actually don`t understand what`s going on in this trial. I really don`t. So, he has plead not guilty -- I actually don`t understand why the government wouldn`t take a plea and send him to... DAVID FEIGE, AUTHOR: Well, that is the real question right there, Chris. I mean, correct, he has plead not guilty. He has conceded functionally his guilt, and he has done that tactically. HAYES: So what do you mean by that? Like what is-- I guess the question is if you get up in opening statements in a trial of your client in which basically everyone can see he`s guilty based on the, and you, yourself, say he is guilty, what are you doing in the trial? What case are you putting on if you`ve already conceded that state`s case against him? FEIGE: That`s great. And to understand that. And to understand the particular mechanics of this case, you`ve got to understand that it`s a death penalty case. And he has no choice since he`s already offered to plead guilty for life. He`s got no choice but to go to trial. What that means is that the strategy of the defense here is to try to avoid death. And one of the ways to do that is to essentially concede the guilty phase and focus on the penalty phase. And there are a bunch of advantages to that. HAYES: OK, so what are the advantages? I mean, I guess the idea is you can start making your penalty case, right, usually trials, capital cases, they have a guilt phase and then if the person if found guilty there is a penalty phase which is a whole other sort of separate trial of should this person live or die. What you`re saying is they can get a head start on the second phase and just use basically the guilt phase for that. FEIGE: That`s one of the things. That`s exactly right. Let me put it to you. There are three things. First of all, by pleading not guilty, you preserve your rights to appeal. There are going to be some real extant issues, most significantly the venue issue. So if you plead guilty, you lose that. If you plead not guilty you preserve that. So that`s one reason not to do it. And the second reason not to do it is because, you want to maintain your credibility with the jury. It looks kind of crazy if you say he is not guilty. He`s not guilty. OK, now that you found him guilty, OK, so he was guilty, now let`s argue about death. Instead, you become a much more credible advocate with the jury you`re going to spend a lot of time with if you basically concede up front what you can`t dispute. That`s just being honest. And jurors appreciate it. And then there is a third thing, if you want. HAYES: Yes, please. FEIGE: OK. So the third thing. The best way to describe the third thing is in reference to like horror stories or movies or something awful that you`ve seen, right. Everybody out there has probably taken a look at something absolutely gruesome. The first time you see it, it is utterly shocking. The second time you see it, it is shocking, but a little less shocking. The third, fourth and fifth time, you become used to what you are seeing, and there is an enormous amount of gruesome evidence in this case. And by challenging the guilt phase and by previewing this evidence, which by the way would be coming in, in the penalty phase anyway, you get a jump on getting the jury used to what they are going to see. And there is a gap, a temporal gap between when they see it, right, and the time they have to decide the big question in the case, which is live or die. HAYES: Fascinating. That -- wow. OK, well, now I actually -- now I understand it. David Feige, thank you. FEIGE: My pleasure. HAYES: Coming up, we bring you the story of someone who has never backed down from a challenge. He`s donned the shoes of the most powerful man of the world. He`s worn shoes with blades on them, and now he`s worn shoes with cleats on them. We will tell you why next. (COMMERCIAL BREAK) (BEGIN VIDEO CLIP) WILL FERRELL, ACTOR; Ladies and gentlemen, can I please have your attention, I have just been handed an urgent and horrifying news story. And I need all of you to stop what you are doing, and listen -- cannonball! (END VIDEO CLIP) HAYES: That is pretty much what happened when Will Ferrell decided to partake in Major League Baseball spring training this week. Ferrell underwent ten grueling wardrobe changes playing every position on the field for 10 different Major League Baseball teams who were all down in Arizona for spring training. The stunt is part of an HBO special later to air later this year and will raise money to fight cancer. Will Ferrell, a California native, started the day with the Oakland A`s, earned a standing ovation while in the outfield for the Los Angeles Angels, and closed out long day as the San Diego Padres. Farrell who is not really known for playing introspective characters reflected on the day. (BEGIN VIDEO CLIP) FERRELL: When I embarked on this journey way back at breakfast, I thought to myself, could I do it? The answer is yes. I brought passion to the field, dedication, ability and a lot of ignorance. The ball moves fast out there, a lot faster than it looks on television. It is like a speeding bullet. It is horrible, terrifying. (END VIDEO CLIP) (COMMERCIAL BREAK) (BEGIN VIDEO CLIP) UNIDENTIFIED MALE: A federal jury says that one of the decade`s biggest hits "Blurred Lines" infringed on the copyright of Marvin Gaye`s "Got to Give it Up." In all, Gaye`s family was awarded $7.3 million, including money from song`s profits, $1.8 million from Robin Thicke, $1.6 million from Pharrell. UNIDENTIFIED MALE: They thought that we would not have the wherewithal to fight this fight. They bet wrong. And they`ve lost. (END IVDEO CLIP) HAYES: Fresh off their victory in the biggest music copyright case in a generation, the family of Marvin Gaye is now deciding whether to take on another chart topping hit, "Happy" by Pharrell Williams. As Rolling Stone notes, videos posted on YouTube have pointed out alleged similarities between Pharrell`s Grammy-winning hit and Gaye`s 1965 single "Ain`t That Peculiar." Although the family has not officially taken any step towards another lawsuit, Gaye`s daughter tells CBS News, "I`m not going to lie, I do think they sound alike." Take a listen and see for yourself. (MUSIC) HAYES: Now, from an amateur perspective those songs don`t sound a lot alike to me. What a jury might think, though, is a different matter. On Tuesday, a federal jury`s decision that another Williams` song "Blurred Lines," copied another Gaye song, "Got to Give it Up" was widely criticized, prompting headlines like "Burred Lines verdict a blow to creative expression," and "The Blurred Lines verdict is bad news, even if you hate Robin Thicke." Last week, we went to a recording studio here in New York to get at the heart of the Gaye family`s case. NYU professor Jeff Peretz told us there was not case there. But he did say that "Blurred Lines" and "Got to Give it Up" have stylistic similarities specifically in the drum and cowbell patterns. Joining me now is the man behind that cowbell sound, legendary Motown musician Jack Ashford, who is the percussionist in Marvin Gaye`s "Got to Give it Up." Mr. Ashford, welcome. Thank you for joining us. JACK ASHFORD, PERCUSSIONIST: Thank you having me. HAYES: I want to get your opinion on the verdict, but first I want you to tell me how you went about creating that very distinctive sound that is the anchor of "Got to Give it Up." ASHFORD: Well, you know, at Motown, we were known for creating different things to sound in order to fit our rhythm that we made. Like we had tire chains, and things like that, that we would experiment with. So I was accustomed to looking for the new sounds. And so when we were in the studio doing "Got to Give it Up" Marvin wanted a cowbell sound, and I didn`t have a cowbell. So I used something else. And so, when I got finished with that, he said, what else you got in your bag? I said, I have a instrument here that I play here. I said, I have never used it before but I think that it will fit this song. And so I came up with another sound, which was called a hotel sheet. So, everybody flipped out over it, and it worked. And so he said I love it, you know, and we put it out. And of course, it is history now. HAYES: Can you show me what you mean by that. You were during the commercial break. ASHFORD: Pardon? HAYES: Can you snow me what you mean by that, what you`re using there. Yeah. ASHFORD: Absolutely. Absolutely. You want me to the play a little bit of track? HAYES: So is that sound actually in the track? ASHFORD: It is in the second part of that song. HAYES: Fantastic! Well, let me ask you this, you know, the cowbell -- the distinctiveness of the cowbell, the sort of the roomy sound of the recording, the syncopation of the beat and the baseline, all these are reasons that people thought the two songs sounded alike. My understanding originally, you didn`t think they did, and then you did. What changed your mind? ASHFORD: Well, the thing is, you know, everybody that writes a song is going to write close to somebody else`s song anyhow. You`ve only got so many chords. But the thing is, after they started talking about how much they love Marvin`s music and everything. And, you know, I`m paraphrasing, you know, he got as close as he could get without getting in the way of it. I think that some of the things that he said is adulation of what Marvin had done back in the day showed that he was more influenced than was necessary to let go as not being a copy of what he was listening to. We all -- you know, as an author, we all listen to other people`s music. And I listen to his music. And I think if you incorporated some of the things that Marvin had in his version, you would have seen a closer similarity between the two songs. Because you are only dealing with really rhythm, you know, feels good, then that is what you get. But, you know, at one time when they determined what was plagiarism and what wasn`t, was the melody. If you wrote the melody too close to another guy, then the melody would determine whether you had copied a song. Well, as things went on, they had to get rid of the melody, because they stopped putting records out didn`t even have a melody, they didn`t have nothing but lyrics. And so they had to come up with something. And I think what they came up with was some of the statements that were made by the author of "Blurred Lines" is what helped them make that decision. HAYES: That is a fascinating point. It gets to exactly what we`re going to talk about with our next guest about what part is the copyright infringement. Musician Jack Ashford, thank you so much for time, sir, I really appreciate it. ASHFORD: Absolutely. HAYES: As I mentioned earlier, I went to a recording studio last week to see for myself whether the family of Marvin Gaye really had a case. NYU professor Jeff Peretz told me they didn`t. I`ll get his reaction to this verdict along with Tim Wu next. (COMMERCIAL BREAK) HAYES: That`s Jack Ashford who played the original percussion on that track. I`m joined now by Jeff Peretz of the Clive David Institute of Recorded Music who spoke to me just last week ahead of the "Blurred Lines" verdict, assured me there was no case. And Tim Wu, professor of Columbia Law School, who wrote a piece on the verdict in the New Yorker, "Why the Blurred Lines copyright verdict should be thrown out." Good evening to you both. What happened, buddy? JEFF PERETZ, MUSIC PROFESSOR: I got it wrong. HAYES: Well, maybe you were right and the jury got it wrong. PERETZ: Well, you know, I think what happened was that the case wound up actually being played out is like a personality contest. And I think the hubris of Robin Thicke and Pharrell Williams kind of did them in. And it was more about who the jury liked more and not necessarily about the math behind the music HAYES: Well, emotionally, right, people like this verdict. I mean, people have been getting -- people are mad at me for saying I think it is a bad verdict from a sort of legal perspective because Marvin Gaye is beloved and Robin Thicke is despised I think is what it sort of comes down to. And they basically, as you heard Jack Ashford just say he basically said when I heard the songs, I didn`t think there was an issue, but then when I heard them talking about how much they were copying Marvin Gaye I thought there was an issue. You wrote a piece basically saying not only that it`s a bad verdict, but that it should be thrown out on appeal, that it`s essentially legally garbage. TIM WU, COLUMBIA LAW SCHOOL: I think it will be. I think the judge made a mistake letting this go to the jury, where it becomes, as you just said, a trial about whether people like Robin Thicke. The verdict was pretty clear on that. He lied to Oprah Winfrey, I mean it`s over for him. So the judge should have taken it away from the jury and said, listen, you cannot on a style. You cannot copyright a whole genre of music. And you see the family now is saying we own this, we own all of these songs. And it`s just showing how far it went. HAYES: But why should I care? I mean, what are the stakes here right, in terms of the way that both music gets made and then creative production more broadly? WU: You know, it`s actually an issue of expressive freedom, I think, even the first amendment. You know, for a big famous artist it is not a big deal, but someone starting new and they`re trying to do a song they want to maybe do it in the style of Marvin Gaye or maybe the style the Rolling Stones or something, they`re going to get sued right away? I mean, it`s a serious issue for artists and creators of all types. HAYES: And Jack was actually sort of saying that, right? Like everyone is like you made this point to me where we were in the studio where you were like it has got to be the notes, ultimately it`s got to be - - can we look at the baseline for a second, because I think actually when I saw this, the baseline was one of the things that they contended were ripped off, but they`re not the same baseline. It`s just like as a factual matter you looking at your screen right now. Look at them. Those are not the same. PERETZ: But the rhythms were the same. If you look at the transcription of the drum pattern and the cow bell pattern, they would line up. But we don`t consider rhythm to be a determinate factor in copyright, the melody is as Jack said as well. HAYES: And the reason is why? PERETZ: It`s a good question. I mean, like the song, the tune of the song is what is considered to be the heart and soul of the song. I think this does start a great conversation. I think that, you know, you talk about the blues as being a style of music. The chord progressions are all kind of the same, most of the melodies are, the rhythms are. And it`s a big, broad brush, so anybody can make a blues song and not deal with this. This gets a little closer than that. And so I think it`s time for a conversation about the way that these songs were recorded, or "Blurred Lines" was recorded and "Got to Give it Up." The studio production style for it has a lot to do with the way it was constructed. It wasn`t written on a piece of paper on a notebook. And so using that as the only determinate factor is where things get a bit confusing. HAYES: Why is style an important thing to defend from copyright essentially? WU: Well, I mean, look, everyone when they start they write in a style. You know, you`re writing a novel, you`re like well maybe I`ll write a fantasy book, but you don`t have to like pay Tolkien, you know. Or maybe I`ll write a book about wizards or something, you don`t have to pay J.K. Rowling. Style is like where people start creating. They just think all right, what style am I going to write in. And if you say all right any time you do that you need to think, oh, you know, is that owned by somebody else? It really is inhibitatory of basically creative freedom. And that`s why I`m saying it`s a first amendment issue. HAYES: You`re starting to put these road blocks. Although, part of the issue, to push back on that, right, is that we`re not dealing with someone starting out, right, we`re dealing with Pharrell Williams and Robin Thicke. And I think part of... PERETZ: Admittedly trying to get as close to him as they can. WU: But the same law for them applies to everybody. So, I don`t care about them, nobody likes them. It`s a little... HAYES: I love how like -- I love how America has suddenly like come together -- like suddenly it was like everyone like danced to the song, everyone like played this song at their parties, everyone was like this song is a banger, and now we`re all like it is a weird national hangover where it is like a tryst we are embarrassed about. Oh, we all hate that. We never liked it. WU: You can`t let the law depend on what those guys personality is like. The fact that people don`t like them isn`t setting a good law for all creators across America, especially in music. HAYES: Does this jury finding have any precedential value? I mean, I guess -- the point is that like are jury finding -- does this affect the way the law gets interrupted going forward? WU: I don`t think so, but it might prompt other plaintiffs to try and see if they can get a jury too, which is why I think the appeals court has got to reverse it. PERETZ: And it will start a good conversation on the music side of it all as -- about can rhythm get the same due that melody does? HAYES: Although, someone said if rhythm gets the same due, like Bo Diddly is a billionaire. Like I saw that line, right, like... PERETZ: That is the difficulty is in defining what is style and what is direct imitation? WU: You`re locking up too much, that`s my point, you know what I mean? There`s like a lot of people trying to create stuff. They need styles. If somebody owns everything, it`s like there`s no place to go for the new guy. And that`s what we care about, not about these old rich guys. HAYES: We care about the sort of generative possibility for folks. And we care about -- we also care about -- I think this is a key point, right, this world is so kind of bounded by whether people are going to settle, are you going to get sued as opposed to things actually playing out in court that what matters more from a precedential standpoint isn`t what a court rules, it`s is someone going to come after you? WU: Yeah, exactly, you know. And it`s like that`s $7.4 million -- $7.3 million looks pretty good. HAYES: Tim Wu and Jeff Peretz, thank you both very much. All right, that is All In for This Evening. The Rachel Maddow show starts now. Good evening, Rachel. THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END