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The Rachel Maddow Show, Transcript 12/02/14

Guests: Justin Hansford, Kathryn Kase

RACHEL MADDOW, MSNBC HOST: Good evening, Chris. Thank you. CHRIS HAYES, MSNBC "ALL IN" HOST: You bet. MADDOW: And thanks to you at home for staying with us for the next hour. In the midst of all sorts of very suspenseful news today, will there be a government shutdown? Who will President Obama nominate to be Defense secretary and when will he do it? What`s going to happen with the legal case in Ferguson, Missouri, that has so much -- garnered so much national attention and caused so much national upset? In the midst a lot of suspense in today`s news, and we`ll talk about all those stories over the course of this next hour, there were some news that also broke today, that precisely no one was waiting for. Every four years, there`s at least one. There`s somebody in politics who thinks the whole country is waiting to find out if they`re going to run for president even though nobody is really waiting on that news altogether. This year, in case you are wondering, it`s Rob Portman who is not going to be running for president. He has officially announced today. Honestly, if that headline were not there and you were just looking at that picture of him with his family and his cute dogs, would you have any idea who that even was? (LAUGHTER) I mean, yes, but this was the big announcement. This was actually the headline that garnered at the right-wing blog "Hot Air" today. "Bowing out of 2016 presidential bid, Rob Portman crushes the hopes of millions." Even in the right-wing blogs, they mean that sarcastically. But just so you know Rob Portman has made it official he is not going to run for president. Dry your lying eyes. Rob Portman is a senator from Ohio, in case you are wondering. The junior senator from Kentucky, Rand Paul, also made an official announcement today that he is going to run for re-election to the United States Senate. Now the reason that one actually is of interest is because there is a law in Kentucky which says that Rand Paul or anybody can`t simultaneously run for two federal offices. Rand Paul cannot legally run both for re-election to the Senate in 2016 and also for president in 2016. Kentucky would have to change its state laws if -- if he wants to run both for president and run for re-election to the Senate. Now Kentucky Democrats control the House in that state. Kentucky Democrats are not at all inclined to make that change to state law in order to benefit Rand Paul. So his announcement today that he is running for re-election to the Senate, that one is of interest and that is going to turn out to be a really interesting fight in 2016 from a couple different angles. There`s also news today that sort of obliquely gets at this question of who might be the next president. That is news today out of Texas. Governor Rick Perry is now at his lame duck period as Texas governor and it`s been a long time coming. He has been Texas governor for almost 14 years. Rick Perry has been governor since 2000. Since the previous governor of that state left Texas to go to Washington to become our nation`s 43rd president. And just as it is clear now, in the twilight days of Rick Perry`s governorship, that he is definitely going to try to run for president in 2016. It was also clear in the twilight days of the George W. Bush governorship in Texas, that he also was going to make a run for president and that he might have a pretty good shot at it. When it was George W. Bush running out his last days of -- as Texas governor and he was courting the national press, "I am going to run for the highest office in the land," one of the issues that George W. Bush never seemed all that comfortable with on a national stage, one of the things about Texas that was never all that easy to explain or translate to a national audience, was the Texas experience with executions. Texas likes to kill its prisoners. They like to kill its prisoners a lot more than other states like to kill their prisoners. Since the Supreme Court legalized executions again starting in 1976, Texas has killed 518 prisoners. The next highest number in any state is Oklahoma which has killed 111 people in that same timeframe. Hundred and eleven versus 518, that`s number one and number two. It`s not just because Texas is a big state or because they`re a populous state or because they are a tough state. Texas -- even if you account for all that, they have a disproportionate, unique outsized enthusiasm for killing their prisoners. They kill more prisoners than anybody by a mile. Both George W. Bush and Rick Perry as long-serving Texas governors are therefore responsible for having overseen the deaths of hundreds of people while they were Texas governor. And in 1998, when George W. Bush was still governor but he was wanting to be president, Texas had one particular execution that got a ton of nationwide attention. And it put a ton of pressure on Governor George W. Bush and his would-be presidential campaign. The prisoner`s name was Karla Faye Tucker. In 1998 she was due to be the first woman executed in the state of Texas since the 1860s. Karla Faye Tucker took part in a double murder, she was convicted, she was sentenced to death. In prison, she had an apparently -- had an apparently sincere conversion to Evangelical Christianity. She ended up marrying the prison minister. And even though Texas has this untrammeled enthusiasm for killing it`s prisoners, something about killing this particular one, this white young Christian Evangelical woman, the first woman to be executed in that state in 135 years. Something about her case grabbed the conscience of even some pro-death penalty conservatives around the country. People like Republican House Speaker Newt Gingrich, who was the leading Republican in the country at the time. People like televangelist Pat Robertson. I mean you had -- yes, all that anti-penalty groups, all your run-of-the-mill liberals that you`d expect to be upset about something like this. But you also had a lot of bold face named conservatives, basically lobbying that this one prisoner, Karla Faye Tucker, shouldn`t be killed. That George W. Bush, governor of Texas at the time, should spare her life, even though he hadn`t spared so many other people`s lives over whom he had power. George W. Bush was Texas governor at that time. He`s on his way to running for president. Those pleas for mercy in the case of Karla Faye Tucker fell on deaf ears. Miss Tucker was executed in Texas in February 1998. The conservative commentator Tucker Carlson during the presidential run for 2000, he ended up interviewing candidate and then Governor George W. Bush specifically about the Karla Faye Tucker case. And Tucker Carlson`s write- up of how George W. Bush behaved during that part of their interview, honestly was one of the most unnerving things that was published by anybody, left, right or center, about George W. Bush before he was elected president. I mean, the Texas governor, he was clearly not at all bothered by this particular execution, right. But the degree to which he was not bothered by it upset even people who are otherwise inclines to like him as a candidate. Here`s how Tucker Carlson wrote it up, it made quite a stir at that time. Quote, "In the weeks before the execution, Bush says, a number of protesters came to Austin to demand clemency for Karla Faye Tucker. Did you meet with any of them, I asked. Bush whips around and stares at me. No, I didn`t meet with any of them, he snaps, as though I`ve just asked the dumbest, the most offensive question ever posed. I didn`t meet with Larry King either when he came down for his interview with her. I watched his interview with her, though. "He has a real difficult questions like, what would you say to Governor Bush? What was her answer?, I wonder. Please, Bush whimpers, his lips pursed in mock desperation. Please don`t kill me. I must look shocked, ridiculing the pleas of a condemned prisoners who has since been executed seems odd and cruel. I must look shocked because he immediately stops smirking." So George W. Bush saw to it that Karla Faye Tucker got executed, even though a bunch of Christian conservatives pressured him not to and a lot of conservative people in the country were unnerved by the fact that he did and by the way that he handled it. Now the Texas governor who wants to run for president is a man named Rick Perry. But the same type of dynamic is playing out in Texas once again. This time, the execution that`s attracting nationwide attention, that`s persuading even some Christian conservatives to lobby the Texas governor to not go through with this one, this time it`s not a woman, this time it`s a man whose case is famous, because specifically he appears to be so obviously and so dramatically mentally ill. His name is Scott Panetti. He`s due to be killed by the state of Texas tomorrow at 6:00 p.m. local time. A big list of Christian conservatives and influential conservative activist has been lobbying Rick Perry against this execution. The list includes people like Gary Bauer, the former presidential candidate, of the anti-gay marriage activist Maggie Gallagher. Ken Cuccinelli, the head of the Senate Conservatives Fund, now he was very nearly the governor of Virginia, he was attorney general in Virginia. Brent Bozell, the longtime, very high-profile conservative activist. Richard Viguerie, Craig Shirley, this big list of pretty well-known conservative activist, who`ve written to Rick Perry saying it would be immoral for the government to take this man`s life. They`re not making a case against capital punishment in general. They`re saying that this guy, it would be wrong to kill him. Quote, "As conservatives, we must be on guard that such an extraordinary government sanction not be used against the person who was mentally incapable of rational thought." In addition to that big list of nationally known conservatives, former Texas Congressman Ron Paul, Rand Paul`s dad, has also now weighed in specifically on this case telling Rick Perry that he should stop this execution. Also in Texas a whole bunch of different Texas papers had editorialized against this execution. And a bunch of them have done it a number of times over and over again across the state. The "Dallas Morning News," the "Houston Chronicle," "Fort Worth Star Telegram," "The Beaumont Enterprise," "The San Antonio Express News." Basically, all the major papers in the state plus a lot of little ones have editorialized against this specific execution, or at least against going ahead with this specific execution right now. The crime that put Scott Panetti on death row is that he killed his in-laws in 1992, when he was 34 years old. He`s now on his 50s. Over the course of the previous 14 years, the 14 years prior to his crime, dating back to the time when he was 20 years old, this man had been hospitalized more than a dozen times for acute instances of mental illness. He had been diagnosed many different times with different variance of schizophrenia. Before his crime, at one point, he took all of the furniture out of his house and buried it in the backyard in an effort to defeat the devil that he believed was living in his furniture. He heard voices. He thought it was controlled by unseen powers. He once nailed the curtain shut in his house to seal off the devil. And again he had been hospitalized more than 10 times for schizophrenia. On the day that Mr. Panetti killed his in-laws, he shaved his head, he changed in a camouflage fatigue, got a hunting rifle, he shot his wife`s parents then he took his wife and his daughter hostage. After a standoff with police, he eventually changed into a suit and tie before he finally decided to turn himself in. This is his mug shot. You see him in the suit and tie. See, they showed him from the front and from the side and then they showed him from the back and it`s kind of strange looking? That`s where you can see he didn`t quite finish shaving the back of his head when he was preparing for this battle with Satan that he thought he was engaged in. At his trial, inexplicably, the state of Texas allowed him to fire his attorneys and represent himself as a capital murder trial. At the trial, he announced plans to call over 200 witnesses in his own defense. He tried to issue subpoenas to John F. Kennedy, to the Pope, and to Jesus Christ. That strategy did not work. He was sentenced to death. He now reportedly says that he believes the state of Texas wants to execute him not because he killed his in-laws. He says he didn`t kill his in-laws. He says that was his alter ego, a man named Sarge. He has painted a portrait in prison of what he says Sarge looks like. He says he believes that Sarge kills his in-laws and the state of Texas wants to execute him in order to persecute him for preaching the gospel. It`s Texas basically taking the side of Satan against him who`s on the side of Jesus. He was initially due to be executed in 2004. That execution was delayed while federal courts considered whether or not somebody which such a clearly documented record of mental illness could legally be executed in this country. In 2007, the United States Supreme Court ruled in his case, a bit of a landmark ruling, they ruled that in this county a person cannot legally be executed unless they are well enough to have a rational understanding of why the state plans to kill him. Despite that ruling, the state of Texas contends that Scott Panetti is faking his mental illness. I guess they think he was faking it all the way back to 14 years before he committed his crime. He must have been a real mastermind about appearing to have schizophrenia for so long in advance. Fourteen years in advance of using it to try to get away with murder. But State of Texas says he`s faking it and they plan to kill him. His execution date is scheduled for tomorrow, 6:00 p.m. local time. The Texas Board of Pardons and Parole ruled yesterday that the execution should go ahead. Legally, that means it`s now up to, basically, the United States Supreme Court to stay the execution sometime tonight or tomorrow or it`s up to this man, Texas governor and would be presidential candidate Rick Perry. Rick Perry cannot commute the death sentence indefinitely on his own. He can`t convert it to life in prison without parole but he could order a 30-day delay of the execution. Lawyers acting on Panetti`s behalf in Texas say they would use the delay to get him another mental competence exam. It`s unconstitutional to execute somebody who`s manifestly severely mentally ill. The state of Texas maintains that Scott Panetti is fine, that he understands what`s happening to him. He`s fully competent to face execution. Well, the last time the guy faced a mental competency exam was seven years ago. How`s he doing since then? And if Governor Perry issues this 30-day delay that would be enough time to get him at least another mental competency exam to see if he is sane enough for Texas to legally kill him. The Supreme Court could weigh in or Rick Perry could weigh in to stop this thing or at least slow it down. That said, Governor Perry has been very busy these days trying to make himself look like he`s a reasonable candidate to be the next President of the United States. Joining us now is Kathryn Kase, she`s director Texas Defender Services. She`s one of Mr. Panetti`s lawyers. Miss Kase, I know you`ve been very busy working on this case. Your time is limited. Thanks very much for being with us tonight. KATHRYN KASE, SCOTT PANETTI`S ATTORNEY: You`re welcome. MADDOW: What is the latest on the appeals? Where do things stand as of tonight? Am I right to single out the Supreme Court and Rick Perry as sort of the last lines of defense here? KASE: We`re also in the Fifth Circuit. MADDOW: OK. KASE: We`ve asked the Fifth Circuit for time and for resources to litigate Scott Panetti`s competence to be executed. And as yet we haven`t heard from the Fifth Circuit. I imagine we`ll hear tomorrow. MADDOW: The Fifth Circuit would make their decision before the Supreme Court would make theirs? KASE: You know, at this point, the Supreme Court has a direct appeal from the Court of Criminal Appeals, on the -- whether it`s constitutional to execute people with severe mental illness like Scott Panetti. But in my experience, the Supreme Court waits until the lower courts have weighed in. So my expectation is that the Supreme Court will wait for the Fifth Circuit to rule before ruling on the documents that we already have there. MADDOW: One of the things that it`s hard to understand about this case is that there is this, apparently, landmark case from the Supreme Court which names your clients in the title of the case which found that people who are so severely mentally impaired that they don`t know what`s happening to them, and why, they don`t understand that they`re being executed and what they are being executed for. Essentially, they cannot legally be executed in this country and that was a case that was decided specifically based on him. Why has that not been enough to get him off death row in Texas? KASE: This is a really good question. The state of Texas takes the position that Scott Panetti isn`t really mentally ill. That he`s a faker, oh and in the past he had problems with drinking and drug abuse which totally overlooks the fact that those are symptoms of severe schizophrenia. And that it`s very common for people who aren`t well controlled on psychotropic medication to drink and use illicit drug to try to control their symptoms. MADDOW: In terms of the -- in terms of what the Supreme Court will rule on and the board -- and what the Board of Parole and Pardons made their decision on what Rick Perry might make his decision on, is it your contention that if Rick Perry gave a 30-day delay on this case, that that mental -- that that would be enough time to get him a mental competency exam, and that that might make the difference in terms of whether or not Texas takes his life? KASE: One of the challenges here is that the state set the execution date six weeks out. And for two weeks we didn`t even know that an execution date had been set. And in Texas, you have to file your motion about a person`s incompetence to be executed 20 days before the execution. We learned 33 days out by reading the newspaper. And then we are scrambling to gather information, to find a qualified forensic psychologist. Frankly, it was very, very difficult to file pleadings to say, look, we don`t think his competent. I mean, we have a lot to organize. We have clemency petition that was due. So our belief is that if we can have more time, we can adequately raise the issue and we can get Scott evaluated. But this also require resources. At this moment, we`re preceding pro bono publico, because no court has seen fit to appoint a mental health expert for Scott Panetti. MADDOW: Wow. Kathryn Kase, director of Texas Defenders Services, one of Scott Panetti`s players on this event. Thank you very much for your time tonight. I know it`s going to be a very heavy next 24 hours for you. Please keep us posted. KASE: Thank you. MADDOW: Thanks a lot. All right. Lots more ahead on this busy news night. We`ll be right back. (COMMERCIAL BREAK) MADDOW: So how would you go about fixing something like this. This is a Minuteman III intercontinental ballistic missile. The land based missile that can carry up to three nuclear warheads. This missile as you can see it has lots of different sort of bolts on it. Those bolts, like in any machine, sometimes need to be tightened. This is how you tighten the bolts on a nuclear warhead tip intercontinental ballistic missile. If this little tool can`t -- right here, it doesn`t really look like much. But this little specific wrench system is what you need to tighten the bolts on one of these giant ICBMs. The U.S. military has 450 Minuteman III nuclear ICBMs, stored at three different bases across the country. Four hundred and fifty nuclear missiles all of them have bolts that occasionally need tightening. And the number of tool kits that we have to service the bolts on those 450 missiles, you`re looking at it. One. The only one. Precisely one tool kit to maintain the hundreds of nuclear missiles that are all parked at all of these bases. I mean, these are the three bases that house our nuclear missiles. They`re in three different states, in Montana, North Dakota, and Wyoming. They have been sharing that one wrench set in order to maintain all of these nuclear missiles. The way these bases have dealt with this problem is that, literally, they have been FedEx-ing that one tool kit back and forth to whichever base needed it at the moment. Because our nuclear missiles sometimes things come loose. In which case your job, missileries, is to go wait for the FedEx guy. Yes. The one tool kit for the 450 nuclear missiles problem, that was one of the things that was turned up in a month`s long Pentagon review of the U.S. Nuclear Force, a review that has just wrapped up. Couple of weeks ago, November 14th, Defense Secretary Chuck Hagel announced a top-to-bottom shake-up of how the U.S. military handles it`s nukes. For starters, each of those three bases with the ICBMs they will now each have their own tool kit. Hey, so there`s that. Sorry, FedEx. Chuck Hagel also announced the multi-billion investment in the nuclear force to upgrade weapons system because there`s nothing like pouring good billions after bad billions to fix the disastrously nonsensical and dangerous system. Chuck Hagel made that nuclear overhaul announcement November 14th. But then 10 days later, poof, he was gone. So we`re going to completely re- order how we handle nukes in this country. By which I mean, you`re going to do that. Because, me, I`ve got to go. I`m resigning. So one of the more immediate questions for whoever is going to replace Chuck Hagel is going to be, do you support these major changes that your predecessor just announced while he was on his way out the door. That`s just one of the questions. That`s just the multitrillion dollar terrifying nuclear question, but there are more. The tea leaf reading out of Washington right now is to expect an announcement about who`s going to replace Chuck Hagel as Defense secretary. Expect that announcement definitely this week, possibly as early as tomorrow. All the smart money in Washington right now is on this man, Ash Carter. Ash Carter has had lots of senior jobs at the Pentagon already, including serving as the number two civilian official at the Pentagon until Chuck Hagel took over last year. By training, Ash Carter has degrees in both medieval history and theoretical physics with a particular expertise in nuclear policy. And hey, maybe that`ll come in handy now they were apparently overhauling our whole nuclear force. But whether or not, it is Ash Cater. Whoever takes over at the Pentagon will be handling the nukes issue along side of war that has been just been very quietly extended in Afghanistan as well as a brand new air war in the Middle East against ISIS which has never been debated or funded by the United States Congress. As well as all the other mundane tasks of managing the single largest organization on the face of the earth, the United States military. Again, we don`t have official word yet that Ashton Carter is the nominee for Defense secretary but we are told to expect an announcement either way within the next day or so. So watch this space. (COMMERCIAL BREAK) MADDOW: So one of my colleagues here at MSNBC has been doing some reporting on part of the legal case explaining why a grand jury did not indict a Ferguson, Missouri, police officer who shot 18-year-old Michael Brown. I think that what my colleague here has turned out is potentially a really big deal in this case and that`s next. Stay with us. (COMMERCIAL BREAK) MADDOW: On the night of October 3rd, 1974, two police officers in Memphis, Tennessee were sent to investigate a prowler at a house. When they got to the house, one of the officers ran around the back of the house and saw somebody running away. It was a 15-year-old kid named Edward Garner. He raced across the yard and he started to climb the fence. The police officer believed his suspect was about to get away. And so, the officer used his gun. He shot the kid fatally in the back of the head. Edward Garner`s family pursued that case for more than a decade. In 1985, the United States Supreme Court threw out that law in Tennessee that had allowed a police officer to kill a suspect just because he was running away from the police officer. And because of the Supreme Court, that ruling also had the effect of overturning any similar laws all over the country that said that was an acceptable use of police force. Even though that`s true as a matter of law, though, it doesn`t mean that every state that had a law like that went through the trouble of taking their now unconstitutional law off the books. In Missouri this year, that state`s old law about police use of force against fleeing suspects, that showed up in a grand jury proceedings about the death of Michael Brown in Ferguson, Missouri. One the day that Ferguson Police Officer Darren Wilson showed up to testify for the grand jury in that case, one of the prosecutors passed out to the grand jury a copy of the old Missouri statute. The one the Supreme Court had killed (ph) three decades ago. We know what the prosecutor did and what she told the grand jury because there were transcripts made of the proceedings that we now have access to. We know when the prosecutor showed them this outdated law that was unconstitutional according to the Supreme Court, we know the prosecutor told the grand jury this, quote, "It is the law on what is permissible. What force is permissible and when in making an arrest by a police officer." So, the prosecutor gave the grand jury that instruction, even though that was not true. And then that same day, the grand jury heard the testimony of Officer Darren Wilson himself, about how and why he shot Michael Brown. Now, it is worth pointing out that the grand jury proceeding in St. Louis County was sort of unusual by design. The county prosecutor decided at the outset that he wouldn`t make a case for the grand jury about what particular charges he thought they might bring. He decided instead that his assistant prosecutors would just dump out for the grand jury any and all evidence that turned up in the case, every photo, every scrap of paper, everything. And they just let the grand jury sort it all out and decide for themselves on charges if any. It`s a very weird way to run a grand jury and lots been said about that since the grand jury came down with its verdict, or lack thereof. As those secret and unusual proceedings dragged on, the local press did start asking some hard questions about what was happening with that grand jury. St. Louis Public Radio noted the conflict between the Supreme Court ruling and the invalidated law that was still technically on the books in Missouri. Quote, "What the law will" -- excuse me, "What law will be given to the grand jury?" said a former chief justice of Missouri`s high court, "It could make a big difference, right?" What law will go to the grand jury? We cannot know whether the prosecuting attorneys in St. Louis County saw those press reports. But we do know that in the last day of the grand jury proceedings, on the day the grand jury started deliberating, the prosecuting attorney who had given jurors a copy of the old invalidated statute, she basically tried to take it back. So, this is from the transcript. Quote, "Real quick, can I interrupt something? Previously, in the very beginning of that process, I printed out a statute for you that was the statute in effect in Missouri for the use of force to affect and arrest. So, if you all want to get those out, what we have discovered and what we`ve been going along with this doing our research, is that the statute does not comply with the case law." And she said, quote, "So, the statute I gave you, if you want to fold that in half, just so that, you know, don`t necessarily rely on that because there`s a portion of that that doesn`t comply with the law." So, keep it. Just fold it in half, so it will be like you never saw it because, you know, maybe you should -- a member of the grand jury asked. Question, quote, "So, we`re to disregard this?" Answer, "It`s not entirely incorrect or inaccurate, but there is something in it that`s not correct. Ignore it totally." So, she gave them instructions, gave them questions and then did not tell them what was wrong about these instructions. Then, she gets another question from a jury member. "The Supreme Court, federal Supreme Court overrides Missouri statutes?" Answer, "As far as you need to know, just don`t worry about that." The other county prosecutor adds, quote, "We don`t want to get into a law class". We don`t want to get into a law class while we`re working on one of the highest profile cases this the country in which members of the grand jury have been given competing and wrong and confusing instructions that are key to the case that then they are supposed to partially ignore but they don`t know what part to ignore. The grand jury in that Ferguson case, of course, decided not to indict Officer Darren Wilson for killing Michael Brown. For the past week, my colleague Lawrence O`Donnell has been pulling on this thread in terms of the way the grand jury was instructed about the law, asking what effect being given that statute might have on the grand jury`s decision. And I think that Lawrence is really on to something here. (BEGIN VIDEO CLIP) LAWRENCE O`DONNELL, "THE LAST WORD" HOST: The district attorney`s office allowed the grand jurors to travel back in time to the good old days of American law enforcement when the cops could shoot people for running away, before Darren Wilson was born. That`s how far back in time they went. The assistant district attorneys did that by using the old constitutional law as the window through which these grand jurors would evaluate Darren Wilson`s conduct. (END VIDEO CLIP) MADDOW: Lawrence has been asking about those confusing and apparently wrong instructions for the grand jury for the past week. Raising that question and asking for comment over and over again from the St. Louis County prosecutor. So far, he has had no answers. But I think he`s asking the right question. Joining us now is Justin Hansford. He`s a professor at St. Louis University Law School. Professor Hansford, thanks very much for being with us. I appreciate your time. JUSTIN HANSFORD, ST. LOUIS UNIVERSITY LAW SCHOOL: Yes, thanks for having me. MADDOW: So grand jury proceedings are something we in the general public don`t see much of because they`re conducted behind closed doors, secret proceedings. As far as what we know about that transcript and how things should have gone, was this a mistake by the prosecution? And if so, how big of a mistake was this? HANSFORD: Well, we can`t really know of the motives of the prosecution. But I can tell you it was a major mistake. I can`t think of a more important aspect of your case than the actual law that you`re going to apply. And it had a number of ramifications. Of course, when you`re a juror and you`re judging the evidence against the law, every piece of evidence that you look at is going to be either disregarded or accepted based on your conclusion as to whether or not it affects the application of the law. So, if you have the wrong law for a large stretch of time, you`re making wrong decisions for all that aspect of the grand jury. MADDOW: Once the grand jurors had been given that wrong instruction about what the law was, what should have happened at that point? Once the prosecutors realized they`d done the wrong thing very early on in the grand jury proceedings, what is the right way to fix that if there is a right way to fix it? HANSFORD: Well, you know, it`s a very difficult issue because in our system, we don`t have any sort of mandatory mechanism to force the prosecutor to correct an issue like that immediately. So, as you saw here, the issue wasn`t corrected until weeks later, and we don`t have any sort of recourse. So, we don`t have anyone saying that you have to retry the case, or you have to have a special prosecutor. We`re simply left to shake our heads. MADDOW: So, I mean, if this was bungled legally, and this is what made the decision about whether -- at least could have contributed to the decision about the grand jury in this case not to indict, could this lead to it going before a new grand jury? Could this have ramification in terms of I mean, either the country or the state or the federal government pursuing this through some other means in order to essentially make up for this error? HANSFORD: Well, I think right now, it`s all political. So, the decision by Governor Nixon to appoint a special prosecutor or circuit court judge, just appoint a special prosecutor or prosecutor McCulloch to reopen an investigation, those are all political decisions and we don`t have any law to mandate that they do so at this moment, I think. MADDOW: Justin Hansford, professor of law at St. Louis University, who`s been following this case closely -- thanks for helping us to understand this. I find this mind boggling. It`s helpful to have clarity from you on this. Thanks a lot. HANSFORD: All right. Thanks. MADDOW: All right. Wow, it`s kind of an amazing story. I mean, there`s a lot to say about what happened in Ferguson, both about what initially happened there, and, now, in terms of the continuing national response to how upset people are and how upset other people are that other people are upset, the continuing protest movement around this. But this legal decision right at the heart of it has a really big problem, a really big, glaring, obvious legal problem that even non-lawyers can see. That can`t be left to stand, can`t it? Anyway, we`ve got lots more to come. Stay with us. (COMMERCIAL BREAK) (BEGIN VIDEO CLIP) BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Of course, even after I`ve done all of this, some folks still don`t think I spend enough time with Congress. "Why don`t you get a drink with Mitch McConnell?" they asked. Really? Why don`t you get a drink with Mitch McConnell? (LAUGHTER) (END VIDEO CLIP) MADDOW: That was President Obama at the correspondents dinner two years ago. This was President Obama after the midterm elections this year in which Mitch McConnell became the new majority leader of the United States Senate. (BEGIN VIDEO CLIP) REPORTER: Are you going to have that drink with Mitch McConnell now? You joked about it at the White House Correspondents Dinner. OBAMA: You know, actually, I would enjoy having some Kentucky bourbon with Mitch McConnell. I don`t know what his preferred drink is, but -- you know, my interaction with Mitch McConnell, he -- you know, he has always been very straightforward with me. (END VIDEO CLIP) MADDOW: I think that his favorite drink is a Manhattan, but I won`t tell you how I know that. Today, the White House released tomorrow`s schedule for President Obama. And wouldn`t you know it? It turns out, hey, private meeting between the president and Mitch McConnell, at last, a midday bourbon summit, maybe. I would like to say that 2:40 in the afternoon is a little early for bourbon, but I would never say such a thing. As for what these two men might be talking about tomorrow, that story is next. (COMMERCIAL BREAK) MADDOW: Nine days till the government shuts down again. It`s now December 2nd. The federal government is funded through December 11th. So, that means there`s nine days for Republicans in the House to sort out amongst themselves exactly how they`re going to bring themselves to fund the government even though they are so mad at President Obama. If they can`t sort that out over the next nine days, then the Republicans will bring about the second shutdown of the federal government in about a year. Incidentally, the last one we had was a hit to the economy of more than $20 billion. But maybe we`re going to do it again anyway. Now, the Republicans in charge in Washington and the leadership, they all say they don`t want another shutdown, but the out-there conservative fringe in their party is a pretty big group and they`re feeling pretty great after this last election. They really do want this shutdown. So, there`s an interest fight now on the right. Today, John Boehner floated a plan to try to get his party together on this. He said in order to appease the Tea Party folks who want to shut down, he`s going to allow a vote on a purely symbolic "We hate Obama" bill that`s been filed by a Tea Party congressman named Ted Yoho, who wants to desperately impeach the president. John Boehner says he will a call a vote on the Ted Yoho bill first. That bill again substantively will do nothing, but the thinking is that hopefully voting on that bill that will do nothing will get the yayas out on the right. And then once yayas have been expended, then their plan will be to vote to fund the government, almost all of the government except for the enormous Department of Homeland Security which they will separate out from the rest of the government and only fund for a few months or maybe a few weeks. It`s supposed to be a kind of punishment for the president`s recent actions on immigration. Homeland Security Secretary Jeh Johnson told the House today that this was a nonsense idea, that it would hurt national security. In particular he said what it would hurt because of the timing, our plans for new border security measures, immigrant detention facilities and surveillance on the border -- all things Republicans say they desperately want. If they do this, it would also stop Homeland Security from hiring new Secret Service officers, which was the recommendation everyone thoughts was so important after the recent Secret Service fiascos, which Republicans and Democrats were so upset about. Breaking off Homeland Security and not funding them with everything else would mean those recommendations can`t be fulfilled. But apparently, that`s the plan. It won`t substantively do anything to stop the president`s actions on immigration, but the Homeland Security Agency says it will hurt homeland security. There`s also a chance the White House might veto this plan if this does pass. Obviously, Democrats won`t go along with this plan. So, if the thing does pass, it will need to pass with all Republican votes. And so, as there`s this fight on the right about whether this is a good idea, there`s an interesting question of whether or not they`ll even be able to pass it. The Tea Party chorus among the Republicans in Congress is already saying they`re against it. It`s not enough, not good enough. And crucially, the outside conservative groups that have whipped up the Tea Party folks in Congress on issues like this in the past, they say they`re absolutely opposed to what John Boehner is planning to do here. The Heritage Foundation called the strategy today a blank check for amnesty. They say they`re going to spend the next several days whipping the Tea Party conservatives in the House against this plan. They say they plan to deploy 10,000 activists against John Boehner, against this plan and in favor of shutting down the government instead. Anything short of shutting down the government is a blank check for amnesty. Shut it down. It`s so funny today. The Beltway press is like, hmm, John Boehner says he doesn`t want to shutdown. He says he has a plan to avoid a shutdown. So, that must mean there`s not going to be a shutdown. It`s all over, right. Let`s get back to writing down whatever John McCain just said. And that`s what`s happening in the Beltway press. But if you look on the right, at the groups that orchestrated the last shut down, they`re loaded for bear right now. They say they`re going to do it again. And conservatives may be ideologically out there in some cases, but they`re not stupid. Why does anybody think that the conservatives who want a shutdown or want impeachment or one of these other extreme measures that they`re going to be placated by being allowed to vote on this pointless Ted Yoho bill that means nothing and then told to shut up all the leadership does what they want. I mean, these guys are out there, but they`re not dump. And, frankly, they are very sensitive to being patronized and treated like they`re dumb by their own side. And so, who knows? Maybe the conservatives will go along with this patronizing plan that gives them none of what they want. But that fight between the right and the very far right is under way as of now in Congress. And they`ve got nine days to figure it out before the lights go out in the federal government. Anybody who tells you they know how this is going to turn down nine days from now is making it up or is not paying close attention. A couple of weeks ago, "The Daily Beast" had a story that I still think is a perfect microcosm of this fight in Washington. It involved a white supremacist guy and a mainstream Republican guy getting into a fight on a ski lift in Montana. The mainstream Republican was Randy Scheunemann. He`d been a foreign policy adviser to John McCain in his presidential campaign. The white supremacist guy, who he got into a fight with on the ski lift in White Fish, Montana, was this guy, who has founded and run a bunch of white supremacist publications and who now runs a white supremacist think tank from his home in Montana. He`s all dedicated to building of a white homeland, preparing white people for victory in the upcoming global race war. Woo-hoo! I`m not calling him a white supremacist as a slur. He really is. When the Heritage Foundation wanted to find an author and researchers for its own Heritage Foundation study on why immigration reform was a terrible idea, they hired this guy whose whole idea about immigration is that it`s a terrible idea because nonwhite immigrants to the United States are intellectually inferior to white people. So, they`ll never achieve much. They`ll be parasites. Immigrants are basically racially inferior and therefore shouldn`t be let into this country. (BEGIN VIDEO CLIP) JASON RICHWINE, AMERICAN ENTERPRISE INSTITUTE: Races differ in all sorts of ways. And probably the most important way is in IQ. Decades of psychometric testing has indicated that, at least in America, you have Jews with the highest average IQ, usually followed by East Asians and then you have non-Jewish whites, Hispanics and then blacks. These are real differences. They`re not going to go away tomorrow. And for that reason, we have to address them in our immigration discussions and our debates. (END VIDEO CLIP) MADDOW: The Heritage Foundation is now whipping conservatives in Congress in shutting down the government in protest of immigration reform. The author of their study about why immigration reform is so terrible, before he was hired by the Heritage Foundation, he used to write for one of this guy`s white supremacist publications. See, this is his posting, model minority. This is his musings on how there`s something about being Hispanic that just inherently makes you more likely to be a criminal. Sort of amazing situation, right? The main force in Washington pushing for the government to be shut down nine days from now, they got their researcher on the policy over which they want the government shutdown from the white supremacist blog world. And that`s what makes it sort of a perfect microcosm of Washington right now, a perfect snowy little pageant version of this fight that the mainstream Republican policy guy and the white supremacist guy from where the Heritage Foundation got its anti-immigrant researcher, they both belong to the same private ski club in Montana, and on the ski lift, they got into a fight. Apparently, they also got into another fight later on at the same club. So, it`s the right versus the off the charts very, very, very, very far right. And in this little microcosmic pageant of what by we`re going through in this country, who won that fight? Basically, the off-the-charts out there guy won. Here`s how "The Daily Beast" put it. "Randy Scheunemann offered the club an ultimatum, kick Richard Spencer out or he would leave. The club chose to keep Spencer." Now, we should have called that Montana ski club for comment before we ran the story a couple of weeks to get their side of it. I`m sorry we didn`t. They don`t want anybody to think that they kicked Randy Scheunemann out because he fought with the racist guy at the club. They say they didn`t kick anyone out. They e-mailed both gentlemen about their fighting, and they wanted to be clear that Randy Scheunemann then just quit on his own terms once he realized that he belong to the same ski club as this white supremacist. And the club didn`t kick the white supremacist guy out of the club for being a freaking white supremacist. They want that to be clear. So, noted. We`re also told the white supremacist guy finally also quit the club. His last day was on Sunday. So, mazel tov, White Fish, Montana, big mountain club. One less Nazi. But in the end, the result here is the same. And it`s instructive. The right and the very, very, very far right are often comfortably co-existent in our country right now. But every once in a while, there is a fight. Either at a personal level, a fight on a ski lift in Montana somewhere, or it`s a big scale fight in Washington that the Beltway doesn`t really notice until it`s way too late. In this iteration of the Republican Party, usually what happens when there`s a fight like this is that the far right wins. Mainstream don`t like to fight with their right flank. And so, when the right flank wins and they fight these things out, they usually get their way. In this case in Washington, that will mean we get a government shutdown in nine days and counting. Tick tock, watch this space. Now, it`s time for "THE LAST WORD WITH LAWRENCE O`DONNELL". Good evening, Lawrence. THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END Content and programming copyright 2014 MSNBC. ALL RIGHTS RESERVED. Copyright 2014 CQ-Roll Call, Inc. 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