updated 12/27/2005 10:24:29 AM ET 2005-12-27T15:24:29

Guest: Katherine Fernandez Rundle, John Timoney, Robert Turner, Aitan

Goelman, Clint Van Zandt, Jack Hickey, Johnny Gaskins, Kevin Miller

DAN ABRAMS, HOST:  Coming up, Miami on edge after an accused serial rapist escapes from jail. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Reynaldo Rapalo climbed through a vent and used bed sheets to climb down jail walls to escape and no one noticed he was missing until a visitor saw the sheets hanging from the jail. 

And police believe a Navy reservist who just returned home from the Middle East was shot and killed by his wife's teenage lover.

DISPATCHER:  Who is that I hear in the background? 

MONIQUE:  My husband. 

DISPATCHER:  What is he—has he been shot? 

MONIQUE:  Yes. 

DISPATCHER:  Who shot him? 

ABRAMS:  The wife and the teen have now been charged. 

He disappeared on his honeymoon on a cruise ship, but now according to George Smith's father, the wife not telling everything she knows about that night.  Now Smith's parents want to know why. 

The program about justice starts now.  

(END VIDEOTAPE)

ABRAMS:  Hi, everyone.  We'll get to all that in a minute.  But first up on the docket, it is over at least for now.  Just a short time ago the bus and subway strike that crippled New York City and stranded seven million riders ended, sending some 33,000 workers back to work without a new contract. 

(BEGIN VIDEO CLIP)

ROGER TOUSSAINT, TRANSIT WORKER UNION LEADER:  I am pleased to announce that the local 100 Executive Board just voted overwhelmingly to direct transit workers to return to work immediately and to resume bus and subway service throughout the five boroughs of New York City. 

MICHAEL BLOOMBERG, MAYOR OF NEW YORK CITY:  Keep in mind we have an enormous mass transit system that serves the seven million riders in the city and it can't be turned on or off with a flip of the switch. 

(END VIDEO CLIP)

ABRAMS:  NBC's Michelle Hofland is at the foot of the Brooklyn Bridge in lower Manhattan.  So Michelle, I thought as of late last night, they weren't even talking. 

MICHELLE HOFLAND, NBC NEWS CORRESPONDENT:  Well you know, actually, yesterday, there was this huge war of words going on between both sides.  But then last night, sometime in the early morning hours of this morning, we understand that the leaders from both sides ended up at the same hotel in midtown New York.  We don't know exactly when they ended up in the same room and began talking but this is interesting.  The timing of this is very interesting. 

At the same time that the union leaders were supposed to be in court over on the other side in Brooklyn to face a judge where they could have ended up in jail because of this strike, because of this illegal strike, at the very same time that that was supposed to take place, the union leaders stepped in front of the camera and said hey, we're close to this strike being over.  Then they said what we need to do now is go before the executive board and ask them if it's OK with them that these workers go back to work while the negotiations continue. 

Then the judge said OK, I'm going to postpone that hearing until later today.  And just an hour and a half before that hearing was supposed to start again, that's when the union leaders stepped back in front of the camera and said the strike is over, we've made a deal.  They're going to come back to work. 

Now to make this clear, there still is no contract.  Both sides right now are working on that contract and trying to hammer out a deal.  We do not know where that stands at this hour because there's these self-imposed media blackouts, so that's all being worked out behind closed doors.  As soon as there is a decision, we'll expect to hear that. 

Now for these commuters who are trying to get home tonight, they still have to take their walk across the bridge here.  They still have to find their own transportation because even though the workers are heading back to work, they do not have the buses back operating yet.  Expect it later tonight and as the mayor said, they still have to flip on a switch.  They still have to wait until they get the workers, the subways to begin running, which could be tomorrow.  Back to you. 

ABRAMS:  Michelle Hofland, thanks.  Let me just respond to that by saying as a fellow New Yorker, yes!

All right, now to a manhunt down in Florida for a suspected serial rapist who is described as armed and dangerous.  Police call Reynaldo Elias Rapalo the Shenandoah rapist.  He's accused of raping seven women ages 11 to 79 and attempting to attack four others since September 2002.

He was supposed to face trial in February.  Police believe Rapalo climbed through a vent in the seven-foot ceiling of his cell and made it to the roof where he then used bed sheets to repel seven stories down to freedom.  They say another inmate helped him escape.  That man was caught after he jumped from a roof and broke his ankles. 

Investigators believe the escape plan may have been in the works for months and that Rapalo may have also had outside help.  Now guards at the jail—get this—only learned of the escape when a visitor said to officials, what are those bed sheets hanging from the facility's wall? 

Now lots of question are being raised about whether the jail should have been ever holding a man as dangerous as Rapalo.  Another inmate who was a convicted rapist also used bed sheets to escape that same jail in 1994. 

Joining me now is the Miami police chief, John Timoney and Miami-Dade State Attorney Katherine Fernandez Rundle who is prosecuting the case.  All right.  Thank you both for coming on the program. 

Ms. Fernandez Rundle, let me start with you.  Because I saw the words that you had for this man, the fact that you intend to go forward with this trial in February.  How dangerous is he? 

KATHERINE FERNANDEZ RUNDLE, MIAMI-DADE STATE ATTORNEY:  You know we already know based on what he's done and the vile crimes that he's committed on really helpless victims of all ages that this is a person that needs to be kept in a place away from the public.  We also have reason to believe in addition to his past that he is presently armed. 

So I would say two things.  One is to the community, be careful.  Try to stay safe.  Keep your children safe.  And to anyone who thinks that they might harbor, assist or help him in any way in furtherance of fleeing anymore, understand they are facing a maximum penalty of 30 years in state prison. 

ABRAMS:  Tell us the sorts of crimes that you are going to be prosecuting him for. 

FERNANDEZ RUNDLE:  You know unfortunately, I think that the world knows that this particular violator is extraordinarily violent and indiscriminate in who his victims are.  The kinds of acts that he's committed in my view are unspeakable and are not worthy of expression, but let me do say this.  There were seven cases, very solid cases we believe we have of which six had DNA matches. 

He had confessed and he'd even taken the police to view various scenes where he had been.  So, we're ready to go to trial.  We've been ready to go to trial.  These victims so deserve to have their case heard, to have some kind of justice, to believe the system has worked and I'm very hopeful.  I have confidence in all the goodness of people in our community that they will call with any piece of information that may help us no matter how large or small that information may be.

ABRAMS:  All right.  Chief, look, you don't run the county jails...

(CROSSTALK)

ABRAMS:  ... and as a result, you know, it's not your oversight, but you are now helping spearhead this efforts to find this guy. 

UNIDENTIFIED MALE:  Right.

ABRAMS:  But I got to ask you, as a man who's been in law enforcement as long as you have with as many different high-level jobs as you have had, what do you say to those people who say how the heck did this happen? 

CHIEF JOHN TIMONEY, MIAMI POLICE DEPT.:  I understand because I said how the heck did this happen.  It's really extraordinary in this day and age.  It almost reminded me, Dan, of a 1930's Jimmy Cagney movie...

ABRAMS:  Yes.

TIMONEY:  ... you know going through the air conditioning system using sheets.  I mean it's bizarre. 

ABRAMS:  And you were saying something about you think that they may have gotten tips on how to escape from a TV show? 

TIMONEY:  Well apparently there's a TV show on another network and there were some similarities as far as markings on the wall, measurements and a variety of things.  That's some of the speculation by some of the investigators that are trying to piece this case together and go out and capture this guy. 

ABRAMS:  And does it look, Chief, as if this was a long plan? 

TIMONEY:  Yes.  I don't want to go into the details because the county police are doing that investigation of how he escaped himself, but I am familiar with—it would have taken a few months to pull this thing off.  And so this was not a plan that was hatched overnight.  This was a conspiracy involving a few people over a two or three-month period. 

ABRAMS:  And how long a head start do you think he got? 

TIMONEY:  Well unfortunately we were notified maybe three and a half hours after the escape was completed and so he had a head start.  But we are convinced that he's still in the South Florida area, the Miami-Dade area, which is why we need the public to be on the alert.  I guarantee you there are people out there that know where he is and they need to call us.  As the state attorney said, she's going to prosecute anybody that aids and abets this individual. 

ABRAMS:  Just so both of you know, through this segment we are constantly putting up the phone number for people to call.  We're constantly putting up his picture...

TIMONEY:  Thanks, Dan...

ABRAMS:  ... as both of you are speaking.  Let me ask you another question Ms. Fernandez Rundle.  Did you have to call the victims' family members and tell them about this? 

FERNANDEZ RUNDLE: You know what's really tragic about this is it was preventable and so many crimes are not really that preventable.  They are unpredictable.  You're caught off-guard.  You're vulnerable.

But in this case, you know like Chief Timoney said, this was something where people should have known...

ABRAMS:  Yes.

FERNANDEZ RUNDLE:  ... because it was pretty—it's pretty clear that he had been conspiring with people.  He had been planning.  He had been pack-racking sheets.  He had a hacksaw.  People knew he had a hacksaw.  I mean this is just—it's unforgivable and to go to victims and let them know that this has happened and the community at large, it's just unforgivable. 

ABRAMS:  They're being protected, though, right? 

TIMONEY:  Yes, Dan...

(CROSSTALK)

TIMONEY:  ... we sent detectives and uniformed officers to all the victims immediately, early hours of the morning.  Two of them actually had moved back to their home countries, one to Mexico and one to Honduras.  But they are receiving protection, as we speak, uniformed officers by their houses and frequent visits by supervisors. 

ABRAMS:  All right.  Well you got...

FERNANDEZ RUNDLE:  The police are doing an excellent job of protecting them.  And our lawyers that work with the victims are in touch with them as well...

ABRAMS:  Look out, Reynaldo.  Look out.  You got the chief, you got Katherine Fernandez Rundle ready to take you down, 305-471-TIPS.  That's the guy.  That's the number.  They need your help.  Thanks for coming on the program.  Appreciate it. 

TIMONEY:  Thanks, Dan.

FERNANDEZ RUNDLE:  Thank you.

ABRAMS:  Chief Timoney, thanks a lot. 

All right.  Coming up, President Bush says Congress gave him the authority to eavesdrop on Americans but some now saying he doesn't even need Congress' permission at all.  That all presidents can do it anyway.  Really?  We debate.

And a Naval reservist murdered days after he came home from the Middle East, shot next to his wife, but she was only slightly wounded.  Now she's charged with his murder—get this—along with her 18-year-old lover. 

Plus, new details into what happened to a man who disappeared on his honeymoon cruise.  His parents now saying his wife is not telling them everything that she knows. 

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

(COMMERCIAL BREAK)

ABRAMS:  We're back.  Question:  Does President Bush have the legal power to eavesdrop on certain Americans that he says are linked to terrorism without court approval?

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  I swore to uphold the laws.  Do I have the legal authority to do this?  And the answer is absolutely.  As I mentioned in my remarks, the legal authority is derived from the Constitution. 

(END VIDEO CLIP)

ABRAMS:  Some legal scholars now saying that the president has the—quote—“inherent constitutional power to conduct intelligence activities that the rest of us including Congress don't know about as long as the president is seeking foreign intelligence.  But wouldn't that mean that the Foreign Intelligence Surveillance Court that we've heard so much about lately, created by Congress in 1978, as supposedly a check on the president and government's power to gather this type of intelligence is kind of well irrelevant? 

Joining us now to discuss is former prosecutor and the Department of Justice's terrorism and violent crime section, Aitan Goelman and Bob Turner, a professor at the University of Virginia and former counsel to President Reagan's intelligence oversight board.  Thank you both for coming on the program.  Appreciate it.

All right, Professor, what about that?  I mean what about the notion and let's try and keep this in layperson's terms.  What about the notion that if everything that the Bush team is saying is true, that effectively you don't need this FISA Court. 

ROBERT TURNER, FORMER REAGAN COUNSEL:  It's been understood since the beginning of the country that intelligence was the exclusive province of the president.  John (INAUDIBLE) 64 said that the Constitution had left the president free and I quote “to manage the business of intelligence as prudence might suggest and throughout our history.”

Woodrow Wilson did it during World War II.  FDR—World War I—FDR did it in World War II.  Presidents (INAUDIBLE) run this business.  When Congress passed the FISA—I worked in the Senate when they passed FISA and it was understood then that this is not taking away any powers the president gives directly to the—the Constitution gives to the president and it can't...

(CROSSTALK)

ABRAMS:  So that means that the president has unlimited, unbridled power when it comes to surveillance and eavesdropping as long as we are in whatever one defines as a time of war? 

TURNER:  Well it's not just in time of war.  It also has to be for foreign intelligence purposes.  The intercepts we're talking about are intercepts between people who are believed to be terrorists, foreigners in other countries and people in the United States.  And the idea that all al Qaeda has to do is have an American copied on an e-mail or an American on the phone and all of their communications are going to be protected from our government is ludicrous. 

ABRAMS:  What do you mean—but what does it mean protected from our government?  The only requirement would be that they would have to go to the FISA Court afterwards at the least just to say look, we went—did this surveillance, we come to the court and we say here look, this is what we're up to and that wouldn't take any extra time and they could go ahead and do it? 

TURNER:  Well one of the most important principles of effective war fighting is speed and dispatch.  There are—under that FISA law in order to get a warrant, you're supposed to certify to the court that the individual, the U.S. person, the American citizen or permanent resident alien you are surveilling is an agent officer...

ABRAMS:  Right.

TURNER:  ... or employee of a foreign government or intelligence service.  And often—let's say bin Laden sends an e-mail to Joe Smith in Peoria.  You can't certify that Joe Smith is working for bin Laden.  It might be bin Laden bought something on eBay and wants to send him packing instructions, but the president has to have the flexibility to monitor everything bin Laden does and his colleagues do. 

ABRAMS:  Wait.

TURNER:  And if, you know, to the extent it infringes upon American civil liberties, that is to say if gets some innocent...

ABRAMS:  Yes.

TURNER:  ... Americans as well as some people that are actively involved with the terrorists that's what we call collateral damage...

ABRAMS:  Look, I—Aitan, I completely agree with Professor Turner.  My guess is that you do too.  That if bin Laden is sending out messages, there has got to be a way to monitor those no matter who he's sending them to. 

AITAN GOELMAN, FORMER FEDERAL PROSECUTOR:  Sure.  And I think there is.  I don't think that a message from bin Laden or his associates would be covered under FISA.  You know I agree with the professor too that you know American civil liberties to the extent that they are infringed upon in the war on terror, that happens. 

You know the Supreme Court has said that the Constitution is not a suicide pact.  But this isn't something—this isn't a question of whether or not something is prohibited by the Constitution or not under the Fourth Amendment.  This is a question about whether or not a statute that was passed by Congress in 1978, signed by the president, a different president, but still the person is  representing the executive branch can be disregarded or not. 

And I think by the terms of FISA, if you intercept communication between an American, U.S. person and someone else on American soil you need to go to the FISA Court to get a warrant first. 

ABRAMS:  Aitan, here's the problem.  You have—even Jamie Gorelick, who worked as you know, for the Clinton administration in the Justice Department saying the following in testimony.

The Department of Justice believes and the case law supports that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes.  I reiterate the administration's willingness to support appropriate legislation that does not restrict the president's ability to collect foreign intelligence necessary for the national security.

GOELMAN:  Yes, but that talks the president's inherent authority to do warrantless searches.  It doesn't say anything about disregarding FISA, which is a law that Congress passed and a president signed. 

ABRAMS:  Professor Turner, here's Joe Biden last night on “HARDBALL” speaking with Andrea Mitchell. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  What about the president's insistence that the war authorization post 9/11 gives him this authority and also article two of the Constitution...

(CROSSTALK)

UNIDENTIFIED FEMALE:  ... commander in chief.

SEN. JOE BIDEN (D), FOREIGN RELATIONS CMTE.:  I think it's bizarre.  It's a bizarre assertion.  These broad assertions, overwhelming assertions are incredibly unusual for a president to make.  We didn't elect you know an executive that says the courts and the Congress don't matter.

(END VIDEO CLIP)

ABRAMS:  What about that, Professor Turner?  Specifically the issue that there is this notion out there that the president can do this without the courts or without the Congress.  It sounds like what you are saying is yes he can.

TURNER:  He sure can.  Just as he can order American troops in wartime to kill enemy soldiers without having a hearing on whether or not they are in fact you know of—guilty of being enemy soldiers, whatever, you have to act with speed and dispatch.  And I worked in the Senate when this law was passed. 

ABRAMS:  So why...

(CROSSTALK)

TURNER:  ... specified—sorry, Griffin Bell specified that this law does not take away the president's powers and it can't...

ABRAMS:  So what's the point of the law?

TURNER:  The Constitution is higher. 

ABRAMS:  What's the point of the law?  Why do you need—if the president can effectively do whatever he wants, as you say, and you say it doesn't have to be wartime, then why do you even need the FISA law?  Why not just say you know what?  I thought this was intended as a post Watergate measure but it sounds like you are saying it was a feel good measure. 

TURNER:  Well it was in part a feel good measure, but it does also provide a useful check when time permits in normal, you know non-war circumstances to make sure there are not abuses because all of the president's...

ABRAMS:  Well it's optional. 

(CROSSTALK)

ABRAMS:  Come on.  What kind of check is it when it's optional?  I mean... 

TURNER:  Well normally it's not—you know normally it is complied with.  In wartime when you have to move quickly, when you've got people trying to blow up Americans, you've got to move quickly.  And every president, every court that has ever considered the issue, every court of appeals, the Supreme Court when they held warrants were required for—in cases of purely domestic terrorism, said we're not ruling out the president's independent power to deal with foreign terrorists.  So you know all of the judicial precedent supports the president. 

ABRAMS:  Aitan, is that true? 

GOELMAN:  Not exactly.  I think the professor is referring to the 1972 Keith case.  And what Keith did explicitly decided not to go to the question of whether or not the president has authority to do this domestically—to do this internationally and was talking about domestically.  The case law is all in the area of the Fourth Amendment, whether or not absent a congressional restriction this would be illegal under the Constitution.

That's what the president talks about.  There's nothing about the—once Congress has acted and said that something is illegal by statute whether or not the Constitution you know prevents Congress from even doing that.  I mean if this law, if FISA is unconstitutional, President Carter shouldn't have signed it in the first place.

ABRAMS:  Yes.  Professor, you want the final word? 

TURNER:  Sure.  The attorney general under Carter specified that we are not giving away the president's independent powers when he needs to use them.  It's not only the Keith case, but it's also the Brown case and the Humphrey case and recently the court of appeals for the FISA Court...

ABRAMS:  Yes.

TURNER:  ... held unanimously the president has independent power to do this. 

ABRAMS:  Yes.  All right.  It just seems to be it really does.  I mean you know you're intellectually honest about this, Professor, I got to say.  I mean you know you called it a feel good measure you said in part and you know it seems to me that if you accept your point of view on this FISA doesn't matter and that it's sort of a nicety, but it's very interesting stuff.  And it's actually almost a little too complex for TV for us to get into all the case law, et cetera.  We did simplify it a little bit, but Professor and Aitan did a great job.  Thanks a lot.  Appreciate it.

GOELMAN:  Thanks, Dan.

TURNER:  Thanks.

ABRAMS:  Coming up, a Navy reservist just back from overseas murdered when he's out with his wife.  She's shot alongside him.  Now she's charged with murder along with her 18-year-old lover. 

And the parents of the man who disappeared on his honeymoon cruise want to know what his wife knows about the mystery.  They say she won't tell them.  Why not? 

And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to help find missing sex offenders before they strike.  Our search today is in Kansas.  Authorities are looking for Alberto Gonzalez.  He's 33, 5'6”, 165.

He was convicted of aggravated indecent liberties with a child and fondling a child.  He hasn't registered his current address with the state.  If you have got any information on where he is, Kansas is looking for him, 1-800-572-7463.  Be right back.

(COMMERCIAL BREAK)

                 

(NEWS BREAK)

ABRAMS:  We're back.  They say she's holding back.  The family of missing cruise honeymooner George Smith want to hear more from his wife.  His mother, father and sister said it in an exclusive interview with MSNBC's Rita Cosby. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Are you satisfied that you are getting all the information from her?  You as a family? 

UNIDENTIFIED FEMALE:  (INAUDIBLE)

UNIDENTIFIED MALE:  I think we would like to have a little more. 

UNIDENTIFIED FEMALE:  I would like to have a little bit more from her. 

UNIDENTIFIED MALE:  She hasn't given us totally everything that I think she could possibly...

UNIDENTIFIED FEMALE:  But I think she has stated that the FBI has requested that she keep certain things...

UNIDENTIFIED FEMALE:  Right.

UNIDENTIFIED FEMALE:  ... from that evening quiet, so you know that could be the reason why...

UNIDENTIFIED FEMALE:  Right...

UNIDENTIFIED FEMALE:  We don't have a...

UNIDENTIFIED FEMALE:  ... and I think the truth will come out eventually. 

UNIDENTIFIED FEMALE:  But that's got to be troubling to you as a family.  This is someone who came into your family.  You deserve to know.  It's your son...

UNIDENTIFIED FEMALE:  It's difficult...

(CROSSTALK)

UNIDENTIFIED MALE:  That's made it hard. 

UNIDENTIFIED FEMALE:  Made it very hard. 

UNIDENTIFIED FEMALE:  Yes.

(END VIDEO CLIP)

ABRAMS:  Smith disappeared almost six months ago, just 10 days after his wedding while honeymooning on a Mediterranean cruise.  The FBI is investigating his disappearance.  His family, convinced it was murder, a trail of bloodstains was found along the balcony of Smith's cabin, trailing down to the ship's lifeboats and a bloody handprint was also discovered on the side of the ship.  Smith's body has not been recovered. 

Joining me now is Jack Hickey, maritime attorney who spent 17 years representing cruise lines and has been following this case closely, Clint Van Zandt, MSNBC analyst, former FBI investigator, and frequent cruise-goer joins us as well.  Sorry, Clint, every time I introduce you I got to point that out. 

CLINT VAN ZANDT, FORMER FBI PROFILER:  I'm going on another one soon, Dan...

ABRAMS:  Good for you.  All right.  So Clint, look, you know I have had trouble with this aspect of this case for a while now. 

(CROSSTALK)

ABRAMS:  I listen to that interview that Joe Scarborough did.  I'll play a piece of that in a minute with the wife, Jennifer Hagel Smith, and she would talk about a lot of things and then she would say well I can't talk about certain things because the FBI asked me not to.  Would the FBI ask her not to even talk to the family? 

VAN ZANDT:  And the answer is as far as I'm concerned, no.  And if there—you know I can understand her saying OK, I'm not going to tell Dan Abrams or Clint Van Zandt the intimate details of what happened that night, that's fine.  But when you have someone who has known her husband obviously longer than she has and who has as much invested as she has emotionally, why not tell them?  That's the problem I have with this case at this moment.

ABRAMS:  Here's Jennifer Hagel Smith on Joe Scarborough's show.  Joe was asking her about what happened. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  There are two different stories about where you woke up and again, one said you woke up in the room.  The other said you woke up three flights up.  Can you tell us where you woke up? 

JENNIFER HAGEL SMITH, HUSBAND DISAPPEARED ON HONEYMOON CRUISE:  It's nothing scandalous, I can say that.  If that's what people are wondering.  It's not scandalous. 

UNIDENTIFIED MALE:  Yes, but you can understand why...

SMITH:  Right.

UNIDENTIFIED MALE:  (INAUDIBLE)

SMITH:  Right.  Oh of course...

(CROSSTALK)

SMITH:  Of course.

UNIDENTIFIED MALE:  Yes.

SMITH:  Sometimes you know the answer or the truth is more basic or more simple than people like to think it is, so people can you know read into that as they will...

UNIDENTIFIED MALE:  But you've been told by the FBI not to talk about that...

SMITH:  Right.  Right.

(END VIDEO CLIP)

ABRAMS:  All right, Jack Hickey, look, this is weird.  All right.  I mean no one is suggesting that she's any kind of suspect or anything like that and yet the family—I'm going to play a little—in a moment something when I talked to the family's lawyer where they are being all coy with me about the relationship there.  I mean there is something odd going on here between the wife and the family. 

JACK HICKEY, MARITIME ATTORNEY:  Well, Dan, I think that we need to keep in mind a couple of different things.  Number one is that the FBI has cleared Jennifer Hagel clearly, absolutely and pretty much right from the beginning.  And the FBI has continued to clear her or keep her not as a completely not a suspect, even though the FBI  has these 97 videotapes now finally that the cruise line turned over. 

But you do have a bit of an unusual situation, unusual but not unheard of, where the two different families have retained separate counsel.  I don't know what the reason for that is, but I've seen before.  I've seen it in wrongful death cases, especially where you have a situation this is a relatively new marriage and so you do have that situation.

ABRAMS:  But it's just not different...

(CROSSTALK)

ABRAMS:  I mean it's not just the legal issue.  And it really goes beyond that.  You just heard the family there saying that they want to hear more from her.  That's not saying we want to share a lawyer with her. 

HICKEY:  Yes, that's true and they do.  I frankly just don't know why that is, but I do know and as Clint pointed out, it is one thing and he does understand and we all understand why the FBI would ask you if you're someone is a witness, like she is a witness to certain facts, why the FBI as law enforcement would do would ask her please don't reveal any details on the air to the press in public whatsoever... 

ABRAMS:  Right.  That I get. 

HICKEY:  ... about what happened.  You know...

ABRAMS:  Look...

HICKEY:  Right.  Right.

ABRAMS:  I'm in no way suggesting why isn't she speaking to the press about every detail that happened?  I get it.  I do.  I have to tell you...

(CROSSTALK)

ABRAMS:  ... I also think it's a little weird, Jack, that she's talking about everything else surrounding that night except the sort of most important few hours.  I can't imagine that the FBI would say to her, go ahead, go on TV, talk about whatever you want just don't talk about the three hours.  They would say don't do interviews. 

HICKEY:  Well, no I understand about that.  But you know there's a big distinction here though, Dan, between you know what happened on the ship versus what happened after they shuttled you off the ship and in the police station.  Once they, you know once she gets off that ship and in a police station and basically abandoned her there on the dock...

ABRAMS:  Yes.

HICKEY:  ... you know later on, that's really not part of the crime...

ABRAMS:  Yes.

HICKEY:  ... of you know whomever onboard the cruise ship.  So I do understand that distinction you know between those two series of events. 

ABRAMS:  And Clint, this could have nothing to do—you know the problems with communication here and the reason everything seems so odd could have nothing to do with the investigation into his disappearance and more to do with something with their relationship, maybe? 

VAN ZANDT:  Well yes, you know one report, Dan, suggested that a passenger alleged that Jennifer Hagel Smith had told him or her that she had passed out during that night and didn't know what happened.  Well OK, if she had too much to drink...

ABRAMS:  Right...

VAN ZANDT:  ... or somebody had slipped her a Mickey...

(CROSSTALK)

VAN ZANDT:  ... and she passed out...

ABRAMS:  Who cares?

VAN ZANDT:  ... say that. 

ABRAMS:  Right...

(CROSSTALK)

ABRAMS:  That's right.  I mean why not just say—and say look, you know it was unfortunate.  There's nothing shameful in terms of the comparative situation.  That sentence didn't make any sense but she should just basically come forward. 

Here's Brett Rivkind on the program.  He's the lawyer for the family and I was asking him about what I view as this kind of this, you know this kind of rift between the wife and the rest of the family. 

(BEGIN VIDEO CLIP)

ABRAMS:  Let me ask you this.  Why does it seem like the family is being so tightlipped about the wife?  I mean every time they're asked the question, they say we don't want to talk about it.  She's not joining the family at the press conference to announce this.  What's going on? 

BRETT RIVKIND, SMITH FAMILY ATTORNEY:  Well the—it's not about Jennifer, the case.  The Smith family have been mourning alone.  Also at some point with Jennifer, too.  She's been with her family and...

ABRAMS:  But I'm not asking about Jennifer and her family.  I'm asking about Jennifer and the family you're representing.  Is there some sort of rift here? 

RIVKIND:  No and—there is not...

ABRAMS:  So why don't they want to talk about her?  Why don't they say look, you know, we're joining Jennifer in mourning.  It sounds like they are upset at her about something. 

RIVKIND:  No because you know the truth is, is the press is trying to make something more out of that situation. 

(END VIDEO CLIP)

ABRAMS:  Well the truth is, as we just heard from the family, that they'd like to hear more from the wife.  But, you know, again we've been going back and forth about what this means or doesn't mean. 

All right, Jack Hickey, Clint Van Zandt, thanks a lot.  Appreciate it. 

VAN ZANDT:  Thank you, Dan.

ABRAMS:  For more of Rita's interview with George Smith's family, be sure to tune in tonight to Rita Cosby “LIVE AND DIRECT” 9:00 p.m. Eastern right here on MSNBC. 

Coming up, a Navy reservist just back from overseas murdered when he's out with his wife.  She was shot alongside him, now she's charged with his murder along with her 18-year-old lover. 

And later all week I've been offering up holiday shopping tips.  Today yes, I wrote a holiday poem.  Looking back at all the big legal stories of the year, if you are really desperate you could print this out and it could be a gift.  Really desperate. 

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a Naval reservist murdered days after he came home from the Middle East, shot next to his wife.  She was only slightly wounded.  Now she's charged with his murder along with her 18-year-old lover. 

(COMMERCIAL BREAK)

ABRAMS:  We're back.  Just days after returning from the Middle East for the holidays, Navy reservist Paul Berkley was gunned down in a city park.  Police at first thought it was random violence, but they now say it was the result of a sick, adulterous affair.  Now we have just learned that the authorities are saying that Berkley's wife admitted to having an affair with a teen who went to school with her stepchildren.  And they say her motive was to collect her husband's insurance money. 

We've got more details, but first NBC's Ron Mott has the back-story.

(BEGIN VIDEOTAPE)

RON MOTT, NBC NEWS CORRESPONDENT (voice-over):  A chilling 911 call from this park in Raleigh, North Carolina.  A couple out for a stroll in the early morning hours of Sunday is attacked. 

MONIQUE:  Hello.

911 DISPATCHER:  Hello.

MONIQUE:  I've been shot. 

MOTT:  Forty-six-year-old Navy reservist Paul Berkley, just back from the war in Iraq and happy to be home for the holidays was shot in the head.  He can be heard gasping for breath and later dies.  His 26-year-old wife, Monique, wounded in the shoulder survives.  People in the Berkley's neighborhood are shocked by the news. 

MARY AYCOCK, NEIGHBOR:  It's hard for me to believe that he could be overseas protecting our country and he comes home and he's shot and killed. 

MOTT:  But that was only the beginning.  Hours after the shootings, police arrest two 18-year-olds.  Then in a stunning move, Monique is charged with helping the men murder her husband. 

UNIDENTIFIED FEMALE:  Ma'am, you are here today charged with first-degree murder. 

MOTT:  Reports say she and one of the men arrested were having an affair and that the other man was dating Paul Berkley's daughter. 

KEVIN MILLER, WPTF-RALEIGH MORNING SHOW HOST:  We have people calling in and they say please don't tell us any more and yet we have others that are just so glued to the story. 

MOTT:  Online condolences from a host of well-wishers for a man who died not at war in a strange land but rather, too close to home. 

Ron Mott, NBC News, Atlanta. 

(END VIDEOTAPE)

ABRAMS:  As I mentioned before, police are saying that Monique Berkley was having an affair with Andrew Canty—is also charged with murder.  Joining me now Kevin Miller, “Morning Show” host at WPTF, Raleigh who you just saw in Ron's report.  He's been following the story, has got some details, and Monique Berkley's attorney joins us, Johnny Gaskins.

Thanks to both of you for coming on the program.  Appreciate it. 

All right, Mr. Gaskins, the police are saying that she has confessed to much of this.  Is that true? 

JOHNNY GASKINS, MONIQUE BERKLEY'S ATTORNEY (via phone):  Well, I have not had any official report from any police officers indicating that she has made any, given any indication that she knew this was going to happen.  My understanding is that she's admitted to having a relationship with the young man that they believe committed the crime.  But I don't have any information to indicate that she has indicated to anyone that she was involved in the homicide. 

ABRAMS:  Kevin Miller, what about that? 

MILLER:  Well we were at the police press conference today at 2:00 in downtown Raleigh and police did say that Monique Berkley did give them the details of luring her husband after watching “King Kong” on Saturday to this park where she was shot.  The original plan was that she was to be beaten. 

And she did admit involvement in this and they did give the motive, Dan.  The motive was money, insurance money.  Now Paul Berkley—it was disclosed also today by Raleigh P.D. that Paul Berkley was aware or apparently aware of this affair.  He told his daughter, Becky, and did say to Becky according to Raleigh P.D. today that he was planning on getting a divorce from Monique. 

ABRAMS:  So—just so I'm clear on this Kevin.  The two guys who are suspected in being involved in this, one of them is having an affair with this Navy reservist's wife and the other guy is supposedly having an affair with his daughter? 

MILLER:  Andrew Canty is the one having the affair with Monique Berkley.  Becky Berkley was dating Latwon Johnson.  And the scary thing about this, Dan, and MSNBC you know your Web savvy, this is going up all over the Web.  You have these Web sites.  The family was very Web savvy. 

Paul Berkley had a bunch of Web sites.  His daughter Becky describes in vivid detail, maybe it's not Becky—we'll just say allegedly, Dan—allegedly her love for Mr. Johnson.  I mean it's all scripted on the Web.  You just have to go to a specific Web site so you can find a diary of the torrid affair going on back and forth. 

ABRAMS:  Mr. Gaskins, before I play some more of the 911 tape, I don't want to put you on the spot if you don't have information to respond to what the police said, but I just want to give you the opportunity. 

GASKINS:  Well I haven't received any information that would indicate to me that she's indicated that she was involved in the homicide. 

ABRAMS:  OK.

GASKINS:  What I have is that she has admitted being involved in a relationship with the young man who committed the homicide. 

ABRAMS:  All right.  Well apparently the police are saying that she admitted luring him there.  But you know look, that will be a subject for the trial.  Here's more of the 911 call where she is calling 911 and reporting the shooting. 

(BEGIN AUDIOTAPE)

POLICE:  Who did it? 

BERKLEY:  I don't know.  I don't know. 

POLICE:  Did he do it to himself?

BERKLEY:  No.

POLICE:  Were you with him?  Which way did they go?  Are they still near here?  Where did they go?

BERKLEY:  No, I think they left.  They're not here.

POLICE:  OK, are you hurt?

BERKLEY:  (INAUDIBLE)

P0LICE:  Are you shot?  Where are you shot at?

BERKLEY:  The shoulder.

POLICE:  The shoulder.

(END AUDIOTAPE)

ABRAMS:  And Kevin Miller, on that 911 call she certainly isn't saying the guy I was having an affair with just shot me and my husband, right? 

MILLER:  Dan, you're right about that.  We did air the entire 911 call on WPTF for 15 minutes it took her three minutes to mention that her husband had been shot.  She talks about herself and you hear this troubling noise in the background that you describe, it's almost inhuman, that's Paul Berkley grasping for air, trying to breathe, begging for his life.  It's inaudible but it sends chills down my spine just when I hear it anytime.

ABRAMS:  All right.  Kevin Miller and Johnny Gaskins, thanks a lot.  Mr. Gaskins, we'll invite you back on the program.  I want to give you an opportunity to get an update on what the police are saying, what your client is saying, and then we'll have you back on.  I appreciate you taking the time as well.

GASKINS:  Thank you. 

ABRAMS:  Coming up, all week I've provided holiday shopping tips.  You know what?  I'm done with that.  So today I've taken my own advice.  Remember I suggested that one nice thing to do (INAUDIBLE) is write a poem.  I wrote a poem looking at what we've learned from the big legal stories of the year.  And you know what?  It's kind of catchy. 

And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing sex offenders before they strike.  Continuing our search in Kansas.  Authorities want your help locating Nicholas Marshall.  He's 22, six feet, 175, was convicted of aggravated indecent solicitation of a child under 14 and unlawful fondling, hasn't registered his address with the authorities.

If you've got any information on his whereabouts, please contact the Kansas Bureau of Investigation, 1-800-572-7463.  Be right back.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—a holiday poem.  What we've learned about justice in this year that was, from watching the program that's getting all the buzz, Michael Jackson likes animals who do housework and books about boys.  His bedroom door has an alarm that sometimes doesn't make enough noise.

That hot for teacher is more than a fantasy for some young men.  Yes, it's a crime, but if it's not a man doing the teaching some judges feel sorry for the hen (ph).  That Aruba doesn't have the most sophisticated missing persons squad.  They're treating Natalee Holloway's disappearance like any other case, wink, wink, nod, nod.

That a woman missing days before her wedding may just be a runaway bride.  No kidnapping.  No blue van and Mexican driver on a cross-country ride.  That getting my gun from the restaurant is not an alibi when your wife is found dead.  A civil jury taught Robert Blake the lesson though he says he can't pay the—quote—“bread”.  That Harriet Miers was the most qualified candidate for the nation's high court until nobody believed it and the president chose to abort. 

And speaking of abortion, new nominee Alito says he's got an open mind or at least he's developed one since the 1980's papers he left behind.  That the Ten Commandments can be displayed on government-owned ground, well only sometimes and in certain places, the highest court found.  That a monitoring bracelet can be a hip accessory if it's below Martha's calf, barely a burden in exchange for cutting her sentence in half.

In New Orleans we saw the best in many but also the looters and we learned that a serious adult could still have a nickname like “Scooter”.  Some question whether there will always be enough justice stories to cover?  Come on.  The great battles always wind up in the courts or someone notable kills a lover.

I wish you Happy Holidays and a Happy New Year.  Feel free to print this out from our Web site and give it as a special holiday gift to that true crime buff or justice buff in the family or not.

Coming up, New York City bus and subway workers heading back to work.  A lot of you upset with me for our coverage of this story yesterday.  Your e-mails are next. 

(COMMERCIAL BREAK)

ABRAMS:  I've had my say, now it's time for “Your Rebuttal”.  New York City transit workers decided this afternoon to go back to work.  Yesterday we asked what the city could do to get them back. 

Michael Katz from Florida, “Your report on the strike might have been a little more objective had you had a representative of the strikers on your panel.  The fact is that any strike is the result of a failure on both sides.”

No, Michael, when one side is doing something illegal it's not always a two-sided issue.  Yes, they have a gripe, but they were smart to get back to work. 

From New Orleans, Max Hommel, “With four different voices brought together to discuss the issue, I certainly didn't expect the kind of giddy harmony usually reserved for a 'Beach Boys' album.”

Oh please, Max, we disagreed about how to get the union back to work. 

Come on.

Jack Schufelt from New York City.  “I don't want to pay any more money for unreasonable nonproductive union agreements.”

Yesterday I talked to Tammi Menendez, wife of convicted killer Erik.  Tammi didn't meet Erik until he had been convicted of the crime.  I asked her why she married him.

ABRAMS REPORT e-mail comedian Jim Greene from San Francisco, “You ask why someone would get married knowing their spouse was sentenced to a life behind bars without parole.  Why would someone subject themselves to a life free from hectoring and nagging?  A life burdened with the freedom to do whatever you want, wherever you want without any guilt or remorse.  You're not married, are you Dan?”

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

That does it for us.  We will see you tomorrow.  “HARDBALL” next.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

END   

Content and programming copyright 2005 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2005 Voxant, Inc. ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user's personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and Voxant, Inc.'s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

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