captioning sponsored by macneil/lehrer productions >> lehrer: good evening. i'm jim lehrer. rescuers expect to hoist the last of the trapped chilean miners to safety tonight, in what has been an astonishing successful operation. >> brown: and i'm jeffrey brown. on the "newshour" tonight: we recap the gripping rescue so far and get the latest from the site of the san jose mine from "washington post" reporter jonathan franklin. >> lehrer: then, newshour political editor david chalian and mark thompson of "time" magazine discuss the fallout from the ruling to strike down don't ask, don't tell. >> brown: special correspondent judy muller reports on a california ballot proposition that would legalize the use and

cultivation of marijuana. > reporter: growers would have to start paying taxes on their crops, which is why not everyone in humboldt favors legalization. >> lehrer: margaret warner talks to marcia coyle about today's supreme court arguments on a death row inmate's right to new dna testing. >> brown: and, judy woodruff has a conversation with former justice sandra day o'conner about civic literacy for students, judicial elections and the new makeup of the court. >> i went in the courtroom myself, and looked at the bench of nine. a woman on the right end, a woman on the left end, and a woman near the middle, it was marvelous to see. >> lehrer: that's all ahead on tonight's "newshour." major funding for the pbs newshour has been provided by:

finds out why. >> i want to know what the universe... >> looks like. >> feels like. >> from deep space. >> to a microbe. >> i can contribute to the world by pursuing my passion for science. >> it really is the key to the future. >> i want to design... >> a better solar cell. >> i want to know what's really possible. >> i want to be the first to cure cancer. >> people don't really understand why things work. >> i want to be that person that finds out why. >> innovative young minds taking on tomorrow's toughest challenges.

and with the ongoing support of these institutions and foundations. and... this program was made possible by the corporation for public broadcasting. and by contributions to your pbs station from viewers like you. thank you. >> lehrer: the dramatic rescue of the chilean miners continues tonight. they have emerged one by one in a small capsule from the depths of their 69 days of entrapment. we have a recap of the events of last night and today from jonathan miller of "independent television news."

( cheers and applause ) >> reporter: the loved-ones of the men for so long buried beyond reach watched, but almost couldn't bear to watch, as for 16 suspense-filled minutes the narrow capsule finally made its maiden voyage with a passenger on board. at ten past midnight, its yellow tip emerged. for the family of florencio avalos, the miner, waiting in camp hope, agony and ecstasy. ( cheers and applause ) that's it-- the phoenix has landed. what a moment for the families. what a moment for chile. up at plan "b," 31-year-old florencio, married with two children, appears, cool, contained.

he's very fit and despite his years, experienced. that's why he was chosen. as he's embraced first by his tearful son, his wife and then by chile's president pinera, florencio's own joy of liberation tempered by knowledge that his brother renan will remain entombed below for at least another day. his family, nerves shot through, appear more traumatized than florencio himself. theirs has been a long, hard journey too. but for now, their disbelief at last suspended. >> ( translated ): i've thought about that moment many times, but i never imagined it would be like this. i thought it would be much calmer. it doesn't matter any more what happened down there, or the tears we shed. what matters is that he came out. >> reporter: operation san lorenzo has the all drama and

characters of prime-time reality tv, and the watching world is hooked, but this is really real and the risks remain very high. at 20 past eleven, manuel gonzales, a highly experienced mining engineer had earlier taken the first plunge. the arrival of his capsule in the cavern half a mile below was broadcast live, filmed by the miners. the first outsider to reach them in 10 weeks was greeted like an alien arriving from another planet. the second miner out was mario sepulveda. super mario, they call him, whose whoops of joy were heard way down the tube as he ascended. "i'm so happy," yelled as he emerged.

he grabbed his wife and asked her how the dog was. he was desperate to share his treasures from below with those who'd saved his life. this a lump of rock for president pinera, who accepted it like it was moon rock. mario is also known here as el presentador, the presenter, as he'd narrated the miners videos which were broadcast around the world. he bounds around like a rock star in his eye-protecting oakleys, hugging, whipping up the chile! chanting and gulping down the cold night air like wine. super mario was stretchered off to triage, but they could hardly keep him down; his infectious warmth and vibrant personality has set chile on fire and injected laughter into this high-stress operation. but he acknowledged he'd done battle in the darkness. >> ( translated ): i've been

with god and i've been with the devil. they fought over me and god won. he reached out and took me by my hand, the hand of god. i held on to him and i never had, how do i put it? i never thought for one minute that god wouldn't get me out of there. the presenter of underground tv said he wasn't interested in celebrity. >> ( translated ): professionals that do all this publicity and television, the only personal thing i ask is for you not to treat us as artists or journalists. i want you to continue treating me like mario antonio sepulveda- - a worker, a miner. >> reporter: the fourth miner, the bolivian carlos mamani surfaces; he'd only worked at the mine five days before it collapsed. he'd left his homeland because he couldn't get a job there; now his president says if he comes home, he'll have a job for life. two hours later and jimmy

sanchez, at 19, the youngest miner, who has a baby daughter, barbara, came up the tube. he gets claustrophobic and he looked a little shaken. dawn crept slowly over mina san jose and as day broke the candles flickered on the hill of the 33. it's eight hours since the capsule first entered the miners chamber, seven since florencio avalos emerged at the surface. phoenix has been rising roughly every hour since. at 8:04 a.m., number nine, the oldest of the miners, 63-year- old mario gomez, made his 2,050 foot ascent. he'd worn an oxygen mask as he has a lung disease. the man who'd provided spiritual guidance to the miners and set up a subterranean chapel knelt down and thanked god for his deliverance.

his wife, liliana, took him in her arms. he's been down mines since he was 12. she says she'll leave him if he ever goes down again. they've both been outspoken critics of safety standards in chilean mines. in triage, he's visited by chiles president sebastian chile's president sebastian pinera and bolivia's president evo morales. the chilean leader has already a wave of relief and intense emotion swept through the group; it radiated out among those filming and watching. there was something about this moment that somehow captured the enormity of what has happened here. with every passing hour another miner surfaces; its continued miner surfaces; it's continued through the morning and early afternoon, without hitch and faster than expected. up at plan "b," the big wheel keeps on turning, and the little phoenix capsule now looks

scratched and battered. the men whom it delivers have set a record for surviving underground, confined, deprived of sunlight. for the first 17 dark days, the world had thought them dead. this incredible rescue has been the work of man, but here in chile it's seen as nothing short of a miracle from god. >> brown: coming up, we'll get the latest from the scene at the san jose mine from jonathan franklin with "the washington post." then: what's next for the pentagon's "don't ask don't tell" policy? the ballot measure to legalize marijuana in california; a death row inmate's case before the supreme court and former justice sandra day o'connor. but first, the other news of the day. here's hari sreenivasan in our newsroom. >> sreenivasan: nato forces in afghanistan took heavy casualties today. six troops were killed in three separate incidents. that brought the total for

october to 34 dead. word of the deaths came as the u.n. security council renewed the nato's mission in afghanistan, for one more year. at fort hood, texas, testimony began at a pre-trial hearing on last november's mass shootings. major nidal hasan, an army psychiatrist, is charged with killing 13 people. witnesses today described hiding under desks as gunfire erupted. one man testified that hasan shouted "god is great" in arabic. police ultimately shot hasan, leaving him paralyzed from the chest down. the hearing will determine if there's enough evidence to take the case to trial. 50 states and the district of columbia opened a joint investigation today, into the growing foreclosure scandal. they will look into whether lenders used shoddy or fraudulent documents to evict thousands of homeowners. employees at four large lenders have admitted they signed foreclosure documents without reading them. more than two and a half million u.s. homes have gone into foreclosure since december of 2007. the woman who led the drive to reform one of the country's

worst performing urban school systems is resigning. michelle rhee announced today she will step down as head of the public schools in washington d.c. at the end of the month. she gained national attention by firing a host of low-performing teachers and raising test scores. but she also drew strong criticism. today, rhee said she enjoyed every minute of her work. >> i'm honored and humbled to have had the opportunity to serve the very deserving young people of this city. the thought of not being in this role anymore is heartbreaking, to put it mildly. but i do know that it is the right thing for the school system and the right thing most importantly for the children of d.c. >> sreenivasan: rhee's departure was expected after the man who hired her-- d.c. mayor adrian fenty-- lost his re-election bid. his apparent successor has been a critic of rhee. newer cars in the u.s. will be allowed to use more corn-based ethanol. the environmental protection agency today approved gasoline mixtures containing up to 15% ethanol. the maximum now is 10%.

the ethanol industry maintains that higher concentrations of the corn-based fuel will not harm engine performance. the auto industry disagrees and livestock operations warn the move will mean higher corn prices for them. upbeat reports on corporate earnings helped wall street today. the dow jones industrial average gained more than 75 points to close at 11,096. the nasdaq rose 23 points to close at 2,441. those are some of the day's major stories. now, back to jeff. >> brown: and we return to chile now for a live update from the >> lehrer: now, what next for the don't ask, don't tell policy for gays in the military. yesterday, a federal judge in california issued an injunction barring the u.s. military worldwide from further implementing the policy. the judge said it infringed on the fundamental rights of u.s. service members.

days to decide whether to appeal the ruling. defense secretary gates told reporters today that congress should decide whether to repeal don't ask, don't tell, not the courts. for more, david chalian, the newshour's political editor, and mark thompson, military correspondent for "time" magazine. david, where do matters stand now about whether the administration is, in fact, going to appeal this? >> d.o.j., the department of justice, has not yet said. but all indications are that they will look to at least get the injunction put off, gate stay on the ruling that we got from california. if, indeed, they don't get that, they will go to the court of appeals to try to get a full appeal but right now department of justice has not weighed in officially. that's just the tea leaf reading, jim. but robert gates at the white house this morning with reporters was very clear. >> lehrer: white house press secretary. >> the white house press

secretary. he said the key indication the white house takes from this court ruling is that the policy is near its end. he reasserted, though, the white house and the president would prefer that this policy, "don't ask, don't tell", and legislatively not through the courts. he's just looking at the courts and the president is just looking at the courts as an indication, basically i think they were trying to goose congress in saying hey, guys, look over here. all you senators that didn't vote on this last time around, look at what the courts are telling us, this is the direction we're moving in, time to get on board. >> lehrer: so there could be a vote as soon as... the lame duck... yes? session of the congress after the midterm elections, right? to get it done officially. >> last time we were here they... we were talking about the failed vote that was attached to the defense bill. harry reid is still reworking how he's going to bring this up in the lame duck but, yes. the goal of the white house is to get a vote on this in the lame duck session clearing away some of those procedural matters that caused it to go down a few

weeks back. >> lehrer: meanwhile, mark, what does the pentagon, the military, do about this? >> well, you remember the great military documentary "the mouse that that roared" with peter sellers. >> lehrer: i do. >> well, this was the judge that roared. the white house, the pentagon and congress have been grappling with this for two years and have been unable to come to a clear... >> lehrer: actually longer than that. goes back years. >> right. but since president obama was elected it's become pushed to the front burner again and suddenly you've got a federal district court judge representing basically a quarter of california and her jurisdiction saying around the world "don't ask, don't tell" must end. in the military this has got them a little bit unnerved. they, as secretary gates said today and robert gibbs said at the white house, this is a political matter. it should be decided by elected officials not our appointed judiciary. there's great concern, as secretary gates said today. listen, we've got a long process we halfway down in terms of how to implement this change in this

policy. and to an abrupt turn in response of this judicial ruling is going to really be tough. and i think he was really telegraphing the fact that they will seek the stay. >> lehrer: but tough doesn't mean they won't do it. if it somehow goes through the judicial process and becomes the law, even though it starts at a district judge, won't the pentagon have to salute and say... >> of course the pentagon will have to salute. but they are getting that the ninth circuit, if not the ninth circuit certainly supreme court, much more conservative, will give a lot of deference to the military. that's what's so unusual about yesterday's decision. the judges in the past basically have already said this is military stuff, we ain't getting involved. all of a sudden you've got this judge saying-- and this judge appointed by clinton, it was his policy and she is basically saying it's over. >> lehrer: well, meanwhile, is it really over? as a practical matter are there, in fact, members of the military being expelled from the military under this "don't ask, don't tell" policy as we speak?

>> yes. i mean, i've talked with the gay advocates. they've been saying since secretary gates in march said we want to make this policy more humane that they really have not detected a change. now, plainly there's a bit of a suspense, a bit of a pause since yesterday's ruling. but they've issued no written guidance to commanders. so i think everyone's just waiting for the next 48 hours to see if they seek and win a stay. >> lehrer: meanwhile, the pentagon still has the study under way, right? was there anything new on that since we talked about it a few weeks ago? >> no, basically you're getting the sense from people you talk to that it's not going to contain any bombshells. there are pockets of resistance, but as we also discuss, it's really a generational thing. and when 80% of the people in uniform are younger than 30, it's not such a big deal as it is for senators, most of whom are not younger than 30. >> lehrer: david is it correct to say just as a matter of fact that "don't ask, don't tell" is on its last days, right? no matter what?

how it happens? >> right. i think it's clear the president set up that's his policy preference. he got secretary gates and admiral mull on board with that as long as it went through that review process first. there's no doubt we're on an inexorable trajectory to the end of of "don't ask, don't tell". the biggest carn at the white house and what secretary gates expressed today is that it happened in an orderly fashion so that the military overall gets on board with it and comfortable with it in a fashion that's as least disruptive as possible. i was just going to note, jim tarks should the administration as we expect appeal this, it is yet another example of the administration have... obama administration to go to court to fight basically against its own policy prescriptions. they would have to be in that awkward position of defending something they're opposed to. >> lehrer: because not only the president but secretary gates and joint chiefs chairman mullen have all said it's time to get rid of it but they wanted a process. and that's... that process has just been preempted, has it not,

by the courts? >> once again, secretary gates said today let's wait till december 1. let's wait until we get the results of the 400,000 service people we've surveyed, the 150,000 family members. so we sort of know how to deal with issues of barracks, issues of benefits. this stuff is complicated, he said. we're dealing with 1.4 million american men and women in uniform. it's not something you can simply stop on a dime and reverse. >> lehrer: finally, mark, just to pick up on something you said earlier, there may be some resistance still between military, particularly in the higher ranks and older members of the military, but generally speaking is it a done deal, too, do you think in terms of just the way people are thinking in the military? >> yeah, i think most folks realize that "don't ask, don't tell" is on life support and they'll be glad when this... i mean, general campbell was asked today in eastern afghanistan, hey, what do your troops think about this in he said we're fighting a war, this is the last thing we're going to think about

>> lehrer: mark, david, thank you both very much. >> brown: and we return to chile now for a live update from the san jose mine site. joining us there is jonathan franklin, special correspondent for the "washington post." jonathan, from this distance, it all looks like a flawless operation so far. is that that what you're seeing? >> from up close it looks even more flawless. it's pretty remarkable that the chileans came up with the idea of having three different options to save these guys. they had plan a, plan "b," plan "c," all multimill operations, all with world class technology, all of them very successful. one of them won the race and that's what we're seeing now. one of these tubes drilled down almost 700 meters. it's like an obstacle course, it goes around and around. this is not an elevator, this is a merry-go-round. these guys come up dizzy but happy and glad to be home.

>> brown: i was going to ask you about that. we saw the man they call super mario energetic, ebullient. we've seen some that look calmer. what have you found out about when they go to the hospital about their actual physical or psychological condition? >> last night i was the only reporter in the hospital. i spent last night with them, i've been up for about two days now. what i saw was a group of guys as healthy as you can imagine. mario hugged me, he hugged the ambulance driver, he hugged the cook in there. he was a guy who just couldn't believe he was free again and he had sense of humorment some of the other ones needed sedation. not heavy sedation because they were particularly ill but because of the nerves. they tended to sleep for three or four hours after coming up. >> brown: at this point things seem to be moving faster than expected i gather. when are we expecting the last miner as of now? >> well, just before we went on air, i heard a huge cheer. it was franklin lobos, a chilean soccer star trapped down there

below. we're down to the last five or six miners now. this will probably be over before midnight. yes, it has been flawless but behind the scenes are hundreds and hundreds of technicians, engineers, the mining community worldwide has come all out for this. >> brown: that's what i wanted to ask you. it's been widely noted here how carefully and well put together, planned, choreographed this has been by authority there is. is that how it looks up close to you? >> yeah, pretty much. i was looking at the menu for the men. the last night of their stay they had duck, i think it was, with plums or maybe it was chicken with plums with all sorts of peaches for dessert. their laundry service was very efficient. they would send their dirty laundry up and it would come back just about ironed. this was a remarkable operation and chile, in fact, is a quite organized country. it's the kind of place where you might in the morning see government employees cleaning the inside of stoplights so they

won't be do so dusty. >> brown: it's an incredible spectacle that the whole world is watching at this point. what's the scene there? you were talking about visiting with some of them in the hospital. what about the families? what about the number of journalists? the number of officials on the site? what's it like? >> well, truly the chileans were overwhelmed. they probably expects 300 or 400 journalists and they've got five to six times that. it's funny. it's a community of main 6,000 people and i don't think i've seen a dollar bill or coin the whole time here. it's one big catered event by the chilean government. you don't see all these behind-the-scenes workers but hundreds and hundreds of people in the chilean government must be cleaning this place up, feeding us, taking away the garbage. it's really remarkable. it kind of feels like if journalists from all over the world had their own woodstock. >> brown: i know you've been covering this for quite a while and there's got to be immense pride from the government in this technical achievement.

where they... when you and i talked yesterday, you said there was a lot of confidence. you've been talking to these guys. were they as confident as they seemd? did they really think this was going to work? >> yes and no. they did have some last-minute problems because on one hand they would announce that the... there would be all sorts of... i don't know, they said there'd be delays but really i don't think there would be delays. i think what they did is they gave themselves leeway. so i really think the chileans knew that the realtime frame was but they played with it a bit to make people be a little bit more patient with them. i don't think we're going faster than expected, i think we're going exactly as expected. it's just the chilean government gave themselves a little leeway just in case. about the only thing i've seen go wrong is a wheel came off or was loosened on the sled they've built, this capsule. and there was people hammering it and fixing in the the middle of the night but for this kind of operation, it's rather surprising that we haven't seen

more chinks in the armor. it's been quite a show of modern chile. >> brown: before i let you go, do you have any sense of what happens in the next few days? do we know when miners leave the scene, leave the hospital, rejoin their families? do they go back to life? what happens to the nation at that point? : yeah, the nation is kind of obsessed with this. the nation would like this to go on forever because chile finds itself to be ignored by the world. that's not the case anymore. i think when they bring that last miner up what we will be seeing is that for the first time the ghost of general pinochet will be left behind at the bottom of that shaft. >> brown: what about the miners themselves? do you have any word on how long they stick around or when they resume their lives? >> the miners, many of them are going to go back to mining, as hard as that is to believe. they will go back to mining and that will be their job. others will be terrified of going back to it, but i've heard quite a few say "i'm a miner and that's what i'm going to do." >> brown: on the scene in chile for us, jonathan franklin,

special reporter for the "washington post." thanks very much. >> lehrer: next, to campaign politics in california, where voters face contentious fights for governor and senator and a controversial measure that could legalize marijuana in the nation's most populous state. recent polling shows voters are closely divided on the proposition. our report is part of our "vote 2010" coverage. it comes from correspondent judy muller of kcet, los angeles. >> reporter: humboldt county lies at the heart of the so- called emerald triangle along california's rugged north coast. ever since hippies moved here in the '60s, looking for a remote spot to grow marijuana, humboldt has been synonymous with pot. nate morris is a grower. >> in the same way the sonomal wine region is famous for that and the champagne region is famous for that, this is the

cannabis region. there's no reason why it should lose that status. humboldt has built an internationally recognized brand name for an illegitimate product. >> reporter: that product could become legitimate if california voters pass proposition 19, and that has everyone here gearing up for some radical changes. >> lock and load and shoot your mouth off, we're talking about prop 19. >> reporter: the ballot measure is the talk of the airwaves on anna hamilton's radio show. kmud routinely broadcasts warnings about drug busts along with traffic and weather. >> our economy is beyond underground. our marijuana has become the number one agricultural product in california. >> reporter: hamilton recently organized a first-ever meeting of reclusive pot growers and public officials to look at the impact of legalization.

>> my main goal was, we've got to start talking to the shakers and the movers and we've got to let them know were ready to have let them know we're ready to have open honest discussions, as much as we can, without having the federal government throw us in prison. marijuana is still listed as an illegal substance by the federal government, which is why so many of the pot farmers came to the hidden valley's of humboldt in the first place. used to be marijuana was only a small part of the economy in humboldt county. lumber and salmon industries provided most of the jobs. then the timber industry depleted most of its inventory; saw mills closed, and now the salmon beds are covered with silt. today, the residents count on marijuana for their economy. local economists estimate pot contributes more than $500 million to the county's $3.6 billion economy. and those dollars don't come just from selling pot, but from jobs supporting and processing it.

dawn walker, for example, works as a trimmer, carefully separating the potent buds from the leaves. >> a lot of people support their families, a lot of specifically women support their children doing this job and its something that almost everybody participates in. >> reporter: it can take more than eight hours to trim a pound of marijuana. but it pays well, between $20 and $25 an hour. that makes it one of the best jobs in the county, for now. new technology, a mechanical trimmer, is likely to become commonplace as pot farming becomes more sophisticated. legalizing pot would have other market repercussions, as well. an increase in supply could cut the price by as much as 80%, according to a report by the "l.a. times." and growers would have to start paying taxes on their crops, which is why not everyone in humboldt favors legalization. county supervisor mark lovelace: >> the black market has been a great price subsidy for them.

and they're interestingly falling in line with some law enforcement agencies in saying we'll oppose prop 19. >> reporter: lovelace says he supports prop 19, but with some ambivalence. that's because of the way it's written. prop 19 is a bit of a mixed bag. it would allow anyone 21 or older to grow and possess small amounts of marijuana for personal use. but when it comes to commercial use, the proposition would leave it up to cities and counties to decide whether they want to allow that and how they would tax it. and that is bound to lead to some confusion. >> every county, every city, could have an entirely different approach to it. the potential that you could have a county that says, "yes, we'll legalize it," and you have the cities within that county saying "no, we're not going to." so while no one knows how all of this will be straightened out, lot of folks are getting into position to cash in, just in case. an earlier proposition which made medical marijuana legal in california, has helped in that transition.

>> i make medical treats for dispensaries. >> reporter: rew popp works part time at an upscale restaurant in humboldt county. but he dreams of bigger things, should pot be legalized. >> i could open a restaurant then, which is what i really want to do. where it would be like wine pairing, but it would be ganja paired with wines and foods and in your salad dressing. and i would want to put it in a metropolitan area where you could have taxis that would take people home. >> reporter: for now, he contents himself with whipping up medical marijuana desserts for people who prefer edibles to smoking. >> i have the basic ingredients laid out and i can see the basic ingredient is... yes, we start with the ganja. >> reporter: he mixes the marijuana with butter, adds chopped nuts, packs the mixture into small tins. so all the marijuana is in the crust? >> yes. >> reporter: and then tops it with fruit and coconut nectar. now, this is really labor intensive. what would you charge for this?

>> to the dispensary-- $10 a tart. >> reporter: rew popps friend beverley worlfe makes medical ointments from marijuana for people suffering from arthritis and muscle pain. >> now i'm adding the extra virgin olive oil infused with the high potency t.h.c. cannabis. >> reporter: you'd think she would support prop 19, since it would give her access to a bigger market, not so. >> i don't feel comfortable knowing that it's possible for large corporations that maybe aren't even medicinally interested but are monetarily interested to be able to come in and take portions of our north coast and turn them into an industry that takes what has grown as a cottage industry here, out of the hands of the community. >> reporter: and that's a common refrain in humboldt county-- fear of the big tobacco or pharmaceutical companies undermining the local lifestyle. >> i'm concerned that the

proposition will push the medicine toward corporate farming and nobody wants to get their weed from walmart. >> reporter: and there's also the threat of competition from other, more accessible, areas of the state, like the central valley. >> i think there's a lot of farmers in fresno that would make a lot more money if they had a field full of ganja than some $2 a bushel crop. they've got the land. they've got the water rights. >> reporter: grower nate morris thinks the best way to remain competitive is to market humboldt pot as a premium brand. would you like to see this whole area become sort of the napa valley of cannabis? >> that would be a great outcome to me. anything that prevents complete economic catastrophe sounds great to me. >> reporter: morris says he grows medical marijuana primarily for research, determining which strains of cannabis are best for specific ailments. he supports prop 19 and actually hopes that legalization will drive prices down. >> if you're talking about a crop that is currently selling at $3,000 a pound it can come down two-thirds and you're still

talking about $1,000 a pound. >> reporter: and that's plenty for family farmers to make a living. whatever the fate of prop 19, the momentum is clearly headed in the direction of a more tolerant attitude. governor schwarzenegger just signed a law that downgrades possession of an ounce of marijuana from a misdemeanor to an infraction, much like a parking ticket, with no jail time or criminal record attached. and if proposition 19 does not pass? >> if it doesn't pass there will be another effort, i'm positive of that. if it doesn't pass in 2010, then i am sure we will see something in 2012. >> reporter: in the meantime, says nate morris, the family pot farmers of humboldt county need to organize to protect their interests. >> if we were drafting laws for our wine export or our avocado export there would be lobbyists from those industries that would actively try to voice the desires of their constituents. and we don't have that in the cannabis trade. >> reporter: not yet, anyway.

with the cannabis trade spawning a new generation of entrepreneurs, lobbyists are bound to be close behind. >> lehrer: now, to today's supreme court argument in a high profile death penalty case. margaret warner has our story. >> warner: last march, 40 minutes before texas death row inmate hank skinner was due to die by lethal injection, the supreme court stayed his execution. today skinner asked the court to help him gain access to additional d.n.a. evidence from the triple murder crime scene, for testing. marcia coyle of the "national law journal" was in the courtroom for the arguments and she joins us now. hello again, marcia. so first of all, tell us about hank skinner. what's he convicted of? it was pretty gruesome, wasn't it? >> it was, it took place on new year's eve, 1993. skinner's girlfriend was

bludgeoned to death and her two adult mentally disabled sons were stabbed to death. skinner who's always maintained his innocence said that at the time he was passed out on the sofa. the result of combined alcohol and drugs. he was arrested, the police collected a lot of biological evidence, they tested blood on his clothes and found that it was conclusive with his blood, the girlfriend's blood and one of the son's. went to trial, was convicted of all three murders and sentenced to death. >> warner: now he wants access to the other evidence that was on the victims' bodies. first of all, why wasn't that all tested at the time? >> well, first of all, the prosecutors felt that they had sufficient evidence from what they did test to convict him. but secondly and probably most importantly, skinner's defense attorney made a decision not to have all the evidence tested because he feared it might come

back showing that his client was guilty or was inconclusive and didn't really clear his client. >> warner: now, this case has been... and there are a lot of texas death row cases, as we know, but this one has attracted a lot of attention. just in the last few months you had "time" magazine write a big essay about it. "politics daily." why has this case attracted asneption. >> i think first of all, margaret, it goes back almost a decade when a group of students from the innocence project at northwestern university who've been very successful in helping to exonerate illinois death row inmates took on skinner's claims of innocence. they went down to texas, investigated. when they came back, they weren't convinced that he was guilty and they weren't convinced he was innocent. but they did raise the question about all this other evidence that was never tested. newspapers started writing about it, the anti-death penalty and civil rights community that has worked very hard to get states to enact d.n.a. testing laws

also saw this case as very important. >> warner: now, at the time he was convicted texas, like most states, didn't have a law governing at what point somebody already convicted can get access to d.n.a. evidence. >> that's right. >> warner: but then texas did enact something. how did that play into this case. and since they have one, why are they refusing to let skinner or skinner's experts test everything? >> well, first i should point out that the d.a., the district attorney in this case, as a result of media pressure back in 2001, did test some additional evidence but he didn't test specifically seven or eight pieces of evidence that skinner believes would show or could show that he's innocent. >> warner: or at least that someone else might have... >> exactly. he always felt that there was another man, a relative who had been after his girlfriend who may have done this. he wanted testing of vaginal swabs that were done in a rape kit on his girlfriend. testing of knives that were likely to have been used in the

attacks on her sons. but in 2001, texas enacted a post-conviction d.n.a. testing law and skinner immediately moved for the evidence. these laws have certain limitations on them and courts in texas found that skinner didn't meet the requirements. one of the requirements is to show that you were not at fault, that the evidence hadn't been tested at trial and the court said he was at fault because his lawyer made a decision not to have it tested. >> warner: so skinner's now saying to the court "i'm filing a lawsuit against this d.a., a civil rights lawsuit." on what basis did his lawyer in the court today argue for going that route and for doing this? and how did the justices respond? >> well, first of all he's saying that the way the lower courts have applied and interpreted the texas d.n.a. law violates skinner's due process rights. this is a civil rights claim, we

should be able to use the civil rights lawsuit to pursue the d.n.a. evidence now. the justices seemed somewhat sympathetic to him. justice sotomayor, though, i think brought up one of the key points here. she asked him to respond to critics that if they say, okay, you win, they're going to be inundated with civil rights lawsuits by prisoners not only looking for d.n.a. evidence but in disputes with other kinds of discovery in their trials. >> warner: and then the other side. how did that go with the lawyer for the state of texas and the justices' reaction? >> texas' lawyer is saying skinner's gaming the system, he has used everything that is available in the law to get this evidence. he has failed, he's looking for multiple bites, he should use the only avenue that's been available to him and he's failed in that avenue. >> warner: meaning the typical way a convict will come to the court and say "i'm actually

innocent and you should just free me"? so called habeas? >> a habeas petition. skinner's lawyer says we're not asking for you to free skinner, we just want the evidence. >> warner: and very quickly, what's the truth of this as far as you can determine in terms of if skinner were to win this, would it open a floodgate? >> skinner's lawyer claims there was a recent study that shows that in a few circuit court areas, jurisdictions where the courts have allowed these types of suits, there have really only been about 21 cases. so he says there won't be a great impact. texas disagrees and sees multiple lawsuits, undermining finality of state court judgments. >> warner: marcia, thank you. >> my pleasure. >> brown: finally tonight, a second supreme court story, a >> brown: and finally tonight, a second supreme court story: a conversation with sandra day o'connor, the first woman to sit on the bench, appointed by president reagan in 1981. she retired from the court in 2006, but her work since has taken her many places, including into the classroom.

judy woodruff spoke with her earlier today. >> woodruff: justice sandra day o'connor, thank you for talking with us. >> my pleasure to be here. >> woodruff: well, we are at the stuart hobson middle school, a public school in the district of columbia located just a couple of boston red sox from your old stomping ground, the united states supreme court. and we're near talk about... to begin to talk about a program you have embraced, i civics. tell us what it's all7aout. >> i had had become increasingly concerned in recent years about the lack of civics education in our nation's schools. now, we got public schools in this country to begin with because of the concern about the need to teach young people how to be good citizens. how our government works so that everybody could participate. that was the selling point for public schools. in recent years, the schools have stopped teaching it.

and it's unfortunate. half the states no longer make it a requirement to get out of high school if you can believe it. and it's really a remarkable withdrawal from a very purpose we had originally for public schools. >> woodruff: so what are you suggesting we should do? >> so solution. i thought maybe we should start a web site that could be used in schools free of charge and feed it a bunch of games designed to teach young people who play them how our government works. we started with the judicial branch, the third branch. i was very concerned at the time about the lack of knowledge about the third branch of government by members of congress not to mention school children. so we started there. but it became apparent after a while that we could successfully

teach that but we should include the other two branches of government. >> woodruff: how do you know it works? >> well because we've put these games online and we have observed and tested young people by having them play the games. they love them, they're addictive, they just adore games and we then tested how much they've learned and they learn incredible amounts! it is fabulous! that's the way young people today want to learn. >> woodruff: and how many schools are doing this and how many schools do you want ultimately? >> i want every middle school in america to use this web site. it's free of charge, it is sensational, and if they use it, the kids are going to come out knowing how our government works. and i think it's terribly important and workable. >> woodruff: and have you taken the test? the questions? how did you? >> oh, i've done a couple games. >> woodruff: i assume you aced

it. >> oh, heavens, no. it's just fun. and i'm very enthused about the potential for this country of using it. one of the problems-- unintended-- is no child left behind. our students in america were tested along with those of 20 other nations of the world, prominent nations, and who came in at the bottom in math and science? we did! the president and congress were worried about that, as they should have been. they devised a program to funnel some public money into schools based on test scores in math, science, and reading. and a school that tested adequately in those areas would get some federal money. now, they don't fund for history or civics. that's not part of the program. and because there's no federal money involved, many schools have opted not to teach them anymore and to work on the ones

where they can get some money. so that was unintended but a consequence nonetheless. >> woodruff: so this is taking up a lot of your time and interest right now? >> it certainly is. i think it's probably the most important thing that i could possibly be doing. >> woodruff: another important thing that you're working on that you've said is important is the idea of keeping the judiciary independent. addressing the question of judges who are elected rather than appointed by merit. why has this become an important cause? >> unfortunately it has. the concept of the framers of our constitution in creating three branches of government, when they came to the judiciary they wanted it independent of the other two branches so that it could do its job to fairly and freely interpret the laws and constitution as they should be and without a threat of retaliation by the other two branches.

that was the intent of the framers. so federal judges are not popularly elected, as you know. none of that. but the states all started the same way. not popularly elected. but over time they changed. you can get decent judges by election. but what you get these days is large campaign contributions when you have elections. and i don't think we should have any cash in our courtrooms. it doesn't belong there. >> woodruff: speaking of cash in elections, you're familiar with the citizens united decision handed down by the court this year. you have spoken out and expressed up happiness with... >> well, i tried not to but i didn't express any enthusiasm simply because of my concern in the judicial area particularly about big campaign contributions to elect judges. how can the judge be expected to

be absolutely fair and impartial if the donor is before him in the court? >> woodruff: and what about more broadly the idea that we're watching this idea the elections, a lot of money come in from outside groups, no disclosure. >> yes, that's a worry. we'd like that know who's contributing, wouldn't we. >> woodruff: how much of a worry is that? >> it's significant, i think. very. >> woodruff: court made a mistake this year? >> that's not for me to say. i can only say that it is a source of serious concern. >> woodruff: three women on the supreme court. >> hooray. >> woodruff: for the first time. does it make a difference? >> well, it does from the standpoint of the public being able to look at the bench and say "ah, we have women on the bench." pleural. not none and not just one. we now have three. i went in the courtroom myself

and looked at the bench of nine. a woman on the right end, a woman on the left end, and a woman near the middle. it was marvelous to see. >> woodruff: and does it make a difference in the... in how the court approaches and makes decisions? >> i don't know that it affected decisions because i've always said that at the end of the day a wise old woman and a wise old man are going to reach the same conclusion on some legal issue. but it's the perception of the public, whether you can rely on the court to do a sensible thing. and you are more apt to if you look there and see something that resembles the public at large. >> woodruff: in terms of the court broadly, though, there is an increasing sense now that the court is divided along ideological lines. >> oh, i don't know. look, some of the decisions are

made by drawing very fine lines and reasonable people can disagree on where those lines should be drawn. i've been there and i know how challenging it is. it is not surprising at all that some cases are decided by drawing fine lines with five people here and four people on the other side. >> woodruff: so the perception that the court is getting set in a 5-4 mold, if you will, for years to come. people shouldn't be concerned about that? >> i wouldn't be, i think. >> woodruff: last question. it's been proposed-- in fact, there's legislation now-- that former supreme court justices come back and sit on the court when a justice has to recuse himself or herself. a lot of recusals right now on the part of elena kagan, the new justice. is that a good idea? >> well, i don't know. it's too bad when the court has to have someone recused and then

they decide something... don't decide it because they're 4-4. that happens often. but i would be surprised if congress is able to agree on a solution. >> woodruff: we will leave it there. justice sandra day o'connor, very good to talk with you. >> thank you. >> lehrer: again, the major developments of the day: rescuers in chile brought up those trapped miners, one by one, throughout the day and into the night. six more nato troops were killed in afghanistan, making 34 this month. and 50 states and the district of columbia opened a joint investigation into the growing foreclosure scandal. and to hari sreenivasan, in our newsroom, for what's on the "newshour" online. hari? >> sreenivasan: judy asked justice o'connor more questions about her life after the supreme court. that's on the "rundown." also there, a live video feed of the final hours of the chilean rescue mission. plus, we talk to "newshour"

education correspondent john merrow about the resignation of washington, d.c. schools chief michelle rhee. watch that and find all of merrow's stories about rhee's tenure. all that and more is on our web site, newshour.pbs.org. jeff? >> lehrer: and again, to our honor roll of american service personnel killed in the iraq and afghanistan conflicts. >> brown: and that's the "newshour" for tonight. on thursday, we'll continue our 2010 election coverage with a report on the impact of the youth vote in a race in indiana. i'm jeffrey brown. >> lehrer: and i'm jim lehrer. we'll see you on-line and again here tomorrow evening. thank you and good night. major funding for the pbs newshour has been provided by:

and by the alfred p. sloan foundation. supporting science, technology, and improved economic performance and financial literacy in the 21st century. and with the ongoing support of these institutions and foundations. and... this program was made possible by the corporation for public broadcasting. and by contributions to your pbs station from viewers like you. thank you.

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