updated 1/3/2006 10:48:26 AM ET 2006-01-03T15:48:26

Guest: Joe Manchin, John Zwerling, David Rivkin, Donna Newman, Jeff Ifrah,

Robert George, Frank Curreri, Raj Chatterjee, Ward Campbell

DAN ABRAMS, HOST:  Coming up, 13 miners trapped underground after an explosion tears through a West Virginia coal mine. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  And President Bush publicly defends eavesdropping on some Americans.  But rather than evaluating the legality of the action, the Justice Department now launching an investigation into who leaked it.  Will this become another effort to blame the messenger? 

Plus the bodybuilding couple accused of murdering their personal assistant.  They say they were just on vacation when they were arrested.  Craig Titus' attorney is with us.  He says his client knows nothing about the 28-year-old's murder. 

And a 75-year-old convicted murderer set to die in weeks.  Now the judge who upheld his conviction and a former warden at the death row prison are asking that his life be spared, because he's too old and sick to be executed.  Is there a such thing as too old to die? 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket, breaking news out of West Virginia, 13 coal miners trapped more than a mile underground after an explosion early this morning.  A rescue team now on the scene in Upshur County, West Virginia, about 100 miles from Charleston, but the carbon monoxide levels in the mine so high right now that rescuers have not been able to go inside. 

West Virginia Governor Joe Manchin joins us now on the phone with the latest.  Governor thanks for taking the time. 

(CROSSTALK)

ABRAMS:  All right.  What do we know? 

GOV. JOE MANCHIN (D), WEST VIRGINIA (via phone):  Well Dan basically what we know is that we've had an explosion and we had a fire.  With the levels being as high as they are right now they're not safe for the rescue teams to go in.  And they will not be able to go in until those levels come down.  They've been fluctuating, but they're still too unsafe for them to enter, so we're hoping for the best, that the fire will go out.  We're hoping that our miners with about two hours' supply were able to find safe haven.  We're just hoping for a miracle and the best would happen. 

ABRAMS:  When you talk about two hours' supply, you were talking about a breathing apparatus, are you not, that each miner brings down...

MANCHIN:  Each miner basically has a breathing apparatus and also they have detections as far as—for air quality detectors.  And we're hoping that the best is worked out, that they were able to find good air and to shield themselves back, and then we'll be able to rescue them and we'll have a good ending to this. 

ABRAMS:  Do we know anything about the cause of the fire? 

MANCHIN:  No, we don't.  The mine was idle and when you go down and you start to turn the power on and bring a mine back up after the holidays like that, you know, there's so many speculations, but until we know specifically, it's hard to sit here and speculate or to try to blame or do any of that.  Our main concern right now is to rescue the 13 miners safely. 

ABRAMS:  I assume that the rescue teams are on-site and ready to go. 

MANCHIN:  Well let me tell you, we have all rescue teams on site.  Even Governor Rendell has called me from Pennsylvania offering to help, send whatever he might be able to.  Governor Blagojevich from Illinois is sending a rescue team out.  All the mining communities and mining states are coming to the aid to help, and we appreciate it so much.  All of our people, with our expertise, we're ready to do the job, we just have to make sure it's safe before we (INAUDIBLE).

ABRAMS:  Governor, for those...

(CROSSTALK)

ABRAMS:  ... people who don't know a lot about this and about mining and about how long it may take to get the carbon monoxide to dissipate, et cetera, are you looking towards getting in there tonight?  Are you talking about tomorrow?  Is there any sense of when that rescue team will be able to go in? 

MANCHIN:  We would hope, if we have safe levels, they're fluctuating right now, and I just spoke to our people on site, and if we can get those levels safe, we hope to get in as soon as possible.  So yes, the sooner the better, as we know, and the quicker the better, for all—for everyone's sake here.  So we won't take unnecessary chances and put anybody else in harm's way.  And we will enter as soon as we can.  And if the fires are not that intense or they're not bad, and they put themselves out and we get the air cleaned out and put some good air in there, then we'll get them in very quickly. 

ABRAMS:  All right.  Governor...

MANCHIN:  The longer it goes, the longer it goes, the more challenges we have.

ABRAMS:  Yes.  All right, Governor Manchin, you've got a lot of work ahead of you.  Thank you very much for taking the time...

MANCHIN:  Thank you very much for being concerned.  And we hope all our prayers—we know all the prayers of America are with us. 

ABRAMS:  They certainly are. 

MANCHIN:  Thank you. 

ABRAMS:  All right. 

Now to new developments in a story we started covering last year, the National Security Agency eavesdropping on terror suspects within the United States, including Americans, without a court warrant.  Now while the administration had made it seem clear-cut that it was legal, it seems the program raised concerns even among the president's inner circle. 

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  This program has been reviewed, constantly reviewed by people throughout my administration, and it still is reviewed.  It has got—not only has it been reviewed by Justice Department officials, it's been reviewed by members of the United States Congress.  It's a vital, necessary program. 

(END VIDEO CLIP)

ABRAMS:  “Newsweek” magazine reporting in this week's edition that the president's top advisors, Chief of Staff Andrew Card, and then White House counsel Alberto Gonzales made an urgent hospital visit to then Attorney General John Ashcroft, who was in intensive care being treated for a painful pancreatic disease, after Ashcroft's deputy, James Comey, refused to reauthorize the program. 

Ashcroft refused to overrule him, but eventually a compromise was reached.  That's not going to satisfy some defense attorneys, looking to have their clients' convictions overturned or to have charges against them dropped.  They're arguing that they want to know if their clients were wiretapped and they may argue the program is unconstitutional. 

“My Take”—I don't think this is going to help any of those already convicted.  They're not necessarily entitled to information about wiretaps, even those made with the approval of the secret FISA Court.  The attorneys might not have been able to get that information, either.  They can try to argue the new program of bypassing the FISA Court is unconstitutional—that may be true.  But even so, I don't see how this is really going to change anything, unless they can show those wiretaps were used to convict their guys. 

Joining me now, attorney John Zwerling who represents Seifullah Chapman, serving 65 years for conspiring to wage war against the United States—he's trying to find out if the NSA spied on his client—David Rivkin, former White House counsel and former Justice Department official, and Donna Newman, attorney for Jose Padilla, a U.S. citizen held as an enemy combatant for three and a half years and recently charged with being a member of a terror cell. 

Thank you all for coming on the program.  We appreciate it. 

Mr. Zwerling, let me start with you.  I think anyone would understand why, as a defense attorney, that you would make this motion.  You would make this effort.  You would say I want to know this information.  But you don't expect to actually get it, do you? 

JOHN ZWERLING, SEIFULLAH CHAPMAN'S ATTORNEY:  Yes, we do.  First of all, we were given FISA wiretap transcriptions in our case and there are ways of dealing with that.  There would be ways of dealing with these intercepts if they were in fact, made.  So it's not a problem to deal with them, but you first have to know whether they occurred.  And if they did occur, there are two ways that can help us.

ABRAMS:  Well no, I'm sure that there are ways that can help you.  I don't think anyone is going to dispute that you could somehow—you could make arguments about how they gathered the information, et cetera.  But you don't have any evidence right now that any NSA wiretaps were used in convicting your client; you're just saying I don't know. 

ZWERLING:  That's exactly right.  And we've requested the government to confirm or deny it.

ABRAMS:  Yes...

(CROSSTALK)

ABRAMS:  David Rivkin, I thought that the point, here, though, was to separate out the gathering of national security information from using this information to prosecute people.  I don't really see—I don't see how they're going to be able to get this. 

DAVID RIVKIN, FORMER WHITE HOUSE COUNSEL:  They're not going—I absolutely respect the right of any defense lawyer to use all the possible arguments and zealously represent one's client, but Dan you're absolutely right.  Let's be clear about something.  The evidence used to convict my colleague's client was derived for one, based surveillance either—I'm not sure.  It could have been a title-free warrant.  It could have been a FISA warrant. 

That was evidence that was introduced before the try effect.  That is the evidence under which the person was convicted.  (INAUDIBLE) abstract argument, but look, maybe the government took a look at our client not for law enforcement purposes, but for gathering (INAUDIBLE) foreign intelligence purposes.  Attorneys sometimes talk about the fruit of a poisonous tree.

That frankly is nonsense.  As a rhetorical case, there's absolutely no basis to either request this information or to hope this information in any way would invalidate the conviction. 

ABRAMS:  And Donna Newman, every day in this country defense attorneys make requests and they say well we think there might be more information out there that could potentially help our clients, and every day prosecutors have to say, look, either we've got this, which is exculpatory, or we don't have it. 

DONNA NEWMAN, JOSE PADILLA'S ATTORNEY:  Well that's true.  And it is incumbent upon us to seek this information.  And there is an argument that is the fruit of the poisonous tree.  And we don't know what the tree is until we get the information and it's important...

ABRAMS:  You can make that argument about anything. 

(CROSSTALK)

ABRAMS:  I mean you could always ask for more information and say wait a sec.  We want to know more, even though we don't know where it will lead and every day prosecutors are allowed to say in this country we've given you everything that's relevant. 

NEWMAN:  Well you know you come back to whether or not an illegal action has occurred.  And it's not a technicality when something illegal has occurred.  So if it is illegal that these wiretaps happened—and I believe it is illegal—then you have to see what it led to.  You cannot just say oh, well, it was illegal, but we got legal evidence also...

ABRAMS:  Wait.  But I don't see how that they would have—if they have any information that they obtained from these secret wiretaps that are used against your client or against Mr. Zwerling's client in the prosecution, they would turn that over, regardless of whether the NSA is secretly spying or not. 

NEWMAN:  No...

(CROSSTALK)

NEWMAN:  ... you wouldn't know to get it.  I don't know that they would turn it over.  I disagree.

RIVKIN:  Dan, if I may jump in...

ABRAMS:  Yes.

RIVKIN:  ... under the existing case law, any information that was gathered for purposes of prosecution...

(CROSSTALK)

RIVKIN:  ... exculpatory information would have to be turned over.  Let's be clear about what is being said here.  What they're basically saying—let's assume for the sake of an argument, that the person involved was subject to warrantless surveillance.  That eventually led to a government asking for a warrant-base surveillance.

The critics are saying they trust FISA judges.  They trust magistrates.  What they're basically saying is yes there was a warrant obtained to get the information that was introduced (INAUDIBLE) effect, but we don't trust the person who issued the warrant.  We somehow want to look at what happened beyond that. 

(CROSSTALK)

RIVKIN:  There's no case law that supports it...

NEWMAN:  Oh absolutely...

RIVKIN:  Donna...

NEWMAN:  I disagree. 

RIVKIN:  ... what case law supports the proposition? 

NEWMAN:  OK, I will give you an exact case.  Mr. Rivkin, I'm surprised that you don't know this.  United States v. United States District Court.  It's a 1972 case and...

(CROSSTALK)

NEWMAN:  ... it's very similar in facts here, because there was an illegal wiretap that was based on the reasoning was national security done by the attorney general.  And the argument—there was exactly the argument being advanced here, and the court said, if I may just finish what the court said because that's the existing law today. 

ABRAMS:  Right.

NEWMAN:  Nothing has overturned that ruling...

(CROSSTALK)

NEWMAN:  ... and the court said that national security, whatever we have laws. 

ABRAMS:  Quick response, Mr. Rivkin...

(CROSSTALK)

ABRAMS:  I want to give Mr. Zwerling the final word on...

RIVKIN:  A very quick response...

ABRAMS:  Yes.

RIVKIN:  That case is totally distinguishable, because in that case the government was trying to introduce into evidence obtained for a warrantless search to convict the people involved.  And the court properly said no. 

(CROSSTALK)

RIVKIN:  That is not the case here. 

(CROSSTALK)

ABRAMS:  Go ahead, Mr. Zwerling...

(CROSSTALK)

ABRAMS:  Yes.

ZWERLING:  You're missing another way that this can help, and that is in many of these cases it's not what the clients did that is in question, it is why they did it.  And if there are taped recordings of the client talking to other people that were intercepted by NSA or anybody else, that shows they had a pure heart and not a criminal intent and that lying prosecutors didn't have this information to turn over, but the Department of Justice and the NSA did, that's a violation of our client's constitutional rights and it means innocent people are in prison, and we have a right to that information. 

ABRAMS:  All right...

(CROSSTALK)

ABRAMS:  Donna, you're coming back after this break. 

NEWMAN:  Sure.

ABRAMS:  I want to give Mr. Zwerling the final word on that. 

John Zwerling thank you very much for coming on the program.

ZWERLING:  You're welcome.

ABRAMS:  Appreciate it.  David Rivkin and Donna Newman are going to stay with us.  Coming up, the Justice Department now investigating who leaked the news of the NSA program.  Is that really a good use of the limited resources? 

And the bodybuilding couple accused of murdering their assistant then burning her body in the trunk of their car now claiming we were on vacation.  The next thing we know we're getting arrested.  Craig Titus' attorney joins us. 

Plus, the oldest man on death row set to die in weeks, but is he too old and sick to be executed?  That's what the judge who upheld his murder conviction now says.  Can you really be too old to be executed? 

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)

(BEGIN VIDEO CLIP)

BUSH:  The fact that somebody leaked this program causes great harm to the United States.  There's an enemy out there.  They read newspapers, they listen to what you write, they listen to what you put on the air, and they react. 

(END VIDEO CLIP)

ABRAMS:  The U.S. Department of Justice announced a criminal investigation into the leak of classified information.  Remember “The New York Times” broke the story more than two weeks ago.  The president confirmed it.  The National Security Administration has been eavesdropping on communications between suspected terrorists overseas and people inside the United States without a warrant from any court.

The president calls the leak a shameful act, says it damaged national security efforts, puts citizens at risk.  Now the Justice Department wants to know the leaker's identity.  But is this a case they should really be investigating? 

“My Take”—if a leak truly impacts national security there should be an investigation.  This is not one of them.  What did terrorists learn here?  Not that their conversations may be monitored.  The FISA Court has existed since 1978 to approve secret warrants that no one would know about and regular courts can approve them as well.

No, the terrorists learned that they may be monitored without a warrant from a special secret court.  Oh, what, so now they're going to say well when they had to get a warrant that I wouldn't have known about anyway, I wasn't worried, but now that I know that they can do it without going to a court that changes everything?  Come on. 

We ought to be having a national debate over whether this controversial program is productive and Constitution.  I know some want to change the subject to whether it should have been leaked and consequently scare the press from publishing stories that are potentially embarrassing, but I don't want to see a world where the only information we get on controversial topics comes from government-issued press releases.  It's bad for everyone.

Joining me now former federal prosecutor Jeff Ifrah and back with us David Rivkin and Donna Newman.  All right, Jeff, you think I'm wrong on this? 

JEFF IFRAH, FORMER FEDERAL PROSECUTOR:  I think you raise some very good points, Dan, and I agree with most of them.  The one point I think I disagree with though, Dan, is that I don't think that any individual can take matters into his own hands and I think that's essentially what you're justifying here...

ABRAMS:  So...

(CROSSTALK)

ABRAMS:  ... whistleblowers can never do it.  No matter what, according to you, they can never, ever leak information. 

IFRAH:  Not national security information...

ABRAMS:  Again, what's the national security harm here?  That they're going to know that they can wiretap people without a court-approved warrant?  I mean as if that's going to be some—that's going to change everything in a terrorist's mind.  If they think that they can be monitored and not know about it, regardless if there's a court or no court, it's the same effect. 

IFRAH:  I think the program itself was of a classified nature and I would question whether or not the disclosure of the existence of that program itself is something that violates the law. 

ABRAMS:  But David, there's a lot of classified information there.  For example, if nothing that's classified could ever be leaked, the public would really know nothing about what's going on with Iran and their nuclear program or North Korea and their nuclear program.  I mean what we're effectively saying here is we ought to investigate any time someone leaks information that they're not suppose to, right? 

RIVKIN:  Well a couple of things.  These, of course—let's go with creative tension, which permeates much of our legal (INAUDIBLE) space between the First Amendment values (INAUDIBLE) debate and the government's need...

ABRAMS:  But let's just have right and wrong here.  Let's forget about the law for a minute.  Let's just talk right and wrong. 

RIVKIN:  All right.  But from a standpoint of right or wrong, just one reality check.  There's dozens and dozens of investigations being opened in leaks of classified information virtually every month because a lot of it leaks.  By the way, to clarify (INAUDIBLE) White House.  Just remember the Valerie Plame investigation, where at least intellectually speaking the potential national security harm was infinitesimally small compared to this one, and yet we have a media grandstand...

ABRAMS:  What's the harm here...

(CROSSTALK)

ABRAMS:  Explain...

(CROSSTALK)

ABRAMS:  I'm missing it. 

(CROSSTALK)

ABRAMS:  And again let's be clear. 

RIVKIN:  ... very clear.

ABRAMS:  As you said before in the previous segment...

(CROSSTALK)

ABRAMS:  You said let's be clear on what the issue is.  We're talking only—and I agreed with you on the previous issue.  We're only talking about the supposed terrorists, right, the terrorists...

(CROSSTALK)

ABRAMS:  ... knowing that they could be monitored without a secret court order that they wouldn't have known about anyway. 

RIVKIN:  No, it's not so much that.  Let me tell you why it's important.  First of all, let's not assume that knowing about something (INAUDIBLE) level and being reminded about it does not make any difference...

ABRAMS:  That's the national security threat? 

(CROSSTALK)

ABRAMS:  Is the fact we're going to start talking...

(CROSSTALK)

ABRAMS:  ... existential issues? 

RIVKIN:  The terrorists frequently rely on the fact that there are millions of pieces of information electronic and otherwise that's flowing across the (INAUDIBLE) reminding them how good NSA is.  That NSA can literally pluck out of this ocean of information. 

NEWMAN:  But they know that.  This is so silly.  This is—what is the national security?  Is it the...

RIVKIN:  Donna...

NEWMAN:  ... procedure—excuse me.  Is it the procedure or the information?  The leak did not say the substantive of the information that they obtained, what it just leaked, if it's a leak, is simply that the procedure on how this information. 

RIVKIN:  No...

NEWMAN:  We might have concerns if the specific subject matter was leaked.  That is Mr. X said to Mr. Y, that's different.  That's not what—that's the national security...

ABRAMS:  That's to me not even the point.  I mean...

NEWMAN:  Yes it is.

ABRAMS:  ... the point is to me—I'll tell you what the point is to me.  The point is to me that the al Qaeda handbook that we gathered 10 years ago talked about the fact that there are probably going to be wiretaps.  And they knew back then that they have to be concerned about their phone calls being listened in on. 

That's why the 9/11 conspirators talked in code.  We know that.  They know that.  We know that.  The question—and I'm not saying that it's a wonderful thing, but the question is what is—what are we going to accomplish by going after who leaked it and, Jeff, don't you think when you balance it and you say to yourself, all right, if every time someone leaks information we're going to go after, we're going to subpoena the journalists.  We're going to figure out exactly who said it.  Aren't we all going to be worse off? 

IFRAH:  No I don't think so, Dan.  I think the one issue that you

haven't really addressed is why does the whistleblower in this case who I -

·         who's presumably a federal or perhaps a congressional employer—employee—why does that individual believe that they have the judgment and the right to disclose information that the government says they should not disclose. 

               

ABRAMS:  I assume you think “Deep Throat” should never have leaked that information, right?

IFRAH:  The question is they don't have the discretion...

ABRAMS:  Right. 

(CROSSTALK)

ABRAMS:  Just so we're clear.  I mean look a lot of people feel that way.  A lot of people don't view Felt as some sort of hero.  They view him as a criminal.  And I just want to make sure that you're of that belief, as well. 

IFRAH:  I agree.  And I think that at the end of the day, Dan, I think that what's going to happen here is that if you're correct—and perhaps this investigation ends up with no findings, no conclusions, no indictments at all—that's certainly one possible conclusion...

ABRAMS:  Yes.

(CROSSTALK)

IFRAH:  ... but the very fact that they...

(CROSSTALK)

IFRAH:  ... just simply opened an investigation is certainly justified under the circumstances here...

ABRAMS:  Yes and let's be clear.  Even Democrats—this is Senator Charles Schumer talking about the fact that he thinks that an investigation is warranted. 

(BEGIN VIDEO CLIP)

SEN. CHARLES SCHUMER (D), NEW YORK:  And whenever classified information is leaked, there ought to be an investigation because it could endanger our security.  Having said that, let's not prejudge.  Was this somebody who had an ill purpose trying to hurt the United States, or might it have been someone in the department who felt that this was wrong, legally wrong, that the law was being violated, went to the higher-ups, they did nothing, now it's clear that Mr. Comey and others, serious people who were hardly left-wing ideologues that had doubts about the program and then in exasperation went to the media. 

(END VIDEO CLIP)

ABRAMS:  Yes, I don't know that that's really going to make or break this issue.  I got to wrap it.  Jeff Ifrah, David Rivkin, Donna Newman, thanks a lot.  Appreciate it.

RIVKIN:  Good to be with you.

IFRAH:  Thank you, Dan.

NEWMAN:  Thank you, Dan.

ABRAMS:  Coming up, the bodybuilding couple accused of murder.  Craig Titus says he's got no idea who killed his 28-year-old assistant even though her body was found in his wife's car and there are reports of an affair.  What's his defense?  His lawyer is with us. 

And a 75-year-old is set to die for ordering the murder of three people.  His lawyer is now saying he's too sick and old to be executed.  The judge who upheld his conviction agrees.  Can you be too old to die? 

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

The authorities need your help finding David Teasley.  He's 35, five-six, 210 pounds, was convicted of sexually abusing a child under the age of 14.  Hasn't registered his address with the state. 

If you've got any information on his whereabouts, please contact the Kentucky State Police, 502-227-8781.  Be right back.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, the bodybuilding couple charged with murdering their assistant.  The man's lawyer says he knows nothing about it.  What about some of the seemingly incriminating evidence?  I'll ask his lawyer.  First the headlines. 

(NEWS BREAK)

ABRAMS:  We're back.  They're used to building their bodies, but now it seems Craig Titus and Kelly Ryan are working on building their defense.  The pro bodybuilding couple accused of murdering and burning their personal assistant Melissa James in Nevada.  James' body was found last month in the trunk of Kelly Ryan's burned car.  There was fabric around her neck and duct tape across her face. 

Police say Craig Titus killed James and his wife and another man helped get rid of the body.  Driving the couple's Jaguar with James' body in the trunk to a remote desert highway, pouring gasoline on the car and setting it ablaze.  According to police, Titus admitted to having an affairs with James, but said his wife knew nothing about the relationship. 

And that the couple kicked James out of their house when they say she stole money from them.  Titus and Ryan left Nevada, leading to a nationwide manhunt.  Police caught up with them at a shopping center in Massachusetts.  Ryan was allegedly getting a pedicure.  She had dyed her hair a different color.  Titus shaved his head. 

Investigators found $8,300 in cash in their truck and said the couple may have been planning to flee to Greece.  Titus faces charges of murder, accessory to murder and arson in Nevada.  Ryan is charged with accessory to murder and arson.  They're fighting extradition to Las Vegas. 

Joining me now is the attorney who's representing Craig Titus, Robert George.  And on the phone is reporter Frank Curreri from the “Las Vegas Review Journal”.  He's been covering the story.  Gentleman thanks very much for coming on the program.  Appreciate it.

All right, Mr. George, let me ask you first about the first piece of “evidence” - quote—unquote—that I just laid out, and that is their appearances.  A lot of people are making quite a bit about the fact that they looked pretty different from the way they looked before.  Were they on the run? 

ROBERT GEORGE, REPRESENTING BODYBUILDER ACCUSED OF MURDER:  Well Mr.  Abrams, I think that what the police in Nevada want you to believe or the prosecution in Nevada want you to believe is they were on the run.  But the fact is they left Las Vegas four days before any arrest warrants issued in the case and after the interviews that you've talked about. 

At the time they left they were cooperating witnesses, as far as they knew.  So when they came here to see friends for the holidays, they only found out a few moments before they were ready to come back that they were wanted in Nevada.  So all the dating on the documents doesn't support a flight to avoid prosecution...

ABRAMS:  What about the change in appearance? 

GEORGE:  Well you know in this state, and this is in Massachusetts, I'm not talking about Nevada, changing your appearance doesn't necessarily mean anything in terms of evidence in a case.  Now using common sense and I'm sure that's what you're going to say, using common sense, why would anyone change their appearance?  The fact is Titus who hasn't competed competitively in almost a year and a half his body is quite different now than it was in the many pictures that you've seen in the media.

His hair is really not that much different.  He's cut his hair very short.  As far as Kelly Ryan goes, from what I saw in court, her hair appears to be almost the same shade as it was back in Nevada.  But for those who would argue that they've changed their appearance, there is a lot of explanations for why a person would change their appearance that is equally consistent with innocence as well as with flight.

ABRAMS:  Was your client having an affair with the woman who was killed, Melissa James? 

GEORGE:  I'm not prepared to say anything about that right now, because I don't want to jeopardize anyone's right to a fair trial in this case and you would understand that.  But I will tell you this, there were statements that were given to the police in Nevada in this case, and Craig Titus was quite open when he talked to the police in Nevada.  And in that statement, which I have not seen yet, because it hasn't come to this end of the case so far, anything that he admitted to at that time, he tells people is the truth and insists it's still the truth.

ABRAMS:  And the authorities would say that he admitted that they were having an affair, but that his wife didn't know about it... 

GEORGE:  See, the thing that people—and I don't mean to interrupt you, but the thing that people have to remember is a lot of what I've read in this case, a lot of what I've seen on the Internet or in the news is dated information.  It's information that's old. 

(CROSSTALK)

ABRAMS:  Was anything that I just said dated and old? 

GEORGE:  Well one of the things that you just said...

ABRAMS:  Yes.

GEORGE:  ... which is something that you've read or been told, the information about when Craig Titus may have been romantically involved with...

ABRAMS:  I didn't say when.  I just asked if they had an affair. 

GEORGE:  Well I'm not prepared to tell you whether or not...

ABRAMS:  OK.

GEORGE:  ... they did have an affair, but I can tell you this, whatever is in the statement back in Vegas is the truth. 

ABRAMS:  And $8,300 in cash, right, 8,300 bills they had with them?

GEORGE:  You're right about that, sir.  And the $8,300 in cash I argued in court last week certainly wasn't enough—not enough money to make a long run for the hills, whether it's to Greece or whether it's to New York City.  Eighty-three hundred dollars was nothing and there was nothing on this end of the case to liquidate, so all of that conversation and all that reportage about liquidating their assets here, there were no assets to liquidate.

ABRAMS:  Frank Curreri, are the authorities pretty confident in their case? 

FRANK CURRERI, “LAS VEGAS REVIEW JOURNAL” (via phone):  They are.  I think that at this point it seems like they have a lot of circumstantial evidence against Craig and Kelly.  They don't have a smoking gun.  They don't have an admission or a confession, even though they've had a chance to—they had a chance to interrogate them a couple hours after the body was discovered in the car and they also had a chance to interrogate them after they were captured outside of Boston. 

I think that what right now, at least as far as the police evidence is concerned, would probably concern Mr. George is that Anthony Gross, who is the third suspect and if he's charged with accessory to murder, he can place Craig Titus out in that remote desert, with—at the car, with a gas can in his hand, an hour or so before the body is discovered. 

And Gross told police that he drove Titus back into town and that during that ride back Craig didn't volunteer what had happened and Anthony didn't ask.  And also, they have—police say that they have Kelly confiding to another bodybuilder the day after that—saying hey Melissa had overdosed and that Craig was trying to get someone to get rid of her body and she was just doing what Craig said and that Craig had told her no body, no crime. 

ABRAMS:  And we should point out that it was their car, as well...

CURRERI:  It was Kelly's car. 

ABRAMS:  Yes, I mean I don't think it's any dispute that it was Kelly's car that the body was found in.  Mr. George, do you want to respond to all that? 

GEORGE:  Sure, I talked to Frank before about this case and he's interviewed me about this case.  All of the information that he just we related to you, I don't dispute that as information that's being reported to him.  The problem with all of it is we don't know what happened.

We don't know how it happened and we don't know how things came to be.  You know when Anthony Gross was released on $13,000 cash bail the other day on this type of case, it says an awful lot about where he's coming from in any story that he tells. 

ABRAMS:  Yes.

GEORGE:  So I don't want to fan that forest fire, but I told Frank the other day and I tell you now that it sure smells like something's going on with Anthony Gross and his deal in this case. 

ABRAMS:  All right.  You got a lot of evidence to address, but as Mr.  George points out, he'll do that in court.  Thanks for coming on the program.  Appreciate it.

GEORGE:  Thank you. 

CURRERI:  Thank you.

ABRAMS:  And Frank Curreri, thank you. 

CURRERI:  Thank you.

ABRAMS:  Coming up, 75-year-old convicted murderer set to die in weeks.  Now the judge who upheld his conviction is asking for clemency, saying he's too old and too sick to die.  Might that save him?  His lawyer's up next. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a death row inmate facing execution within weeks says he is too sick to be executed.  His lawyer's up next. 

(COMMERCIAL BREAK)

ABRAMS:  We're back.  He's 75, blind, wheelchair bound, gravely ill.  Convicted killer Clarence Ray Allen and his attorneys hope that will save him from being executed on January 17.  That his poor health will convince California Governor Arnold Schwarzenegger to grant him clemency. 

Allen was the alleged leader of a theft ring in California and convicted of ordering the murder of his son's girlfriend, Sue Kitts, in 1974.  Her body later dumped in a canal.  In 1980, while serving a life sentence, Allen was convicted of ordering three more killings from behind bars, the victims, witnesses at his first trial and probably would have hurt him in his appeal.

He was convicted, sentenced to death for those murders.  But Allen's attorney say his execution now, 25 years after the last victims were killed, would be cruel and unusual punishment and perhaps a violation of the Americans with Disabilities Act because he's wheelchair bound and would be forced to walk to the death gurney.  They also have the support of a former warden at San Quentin Prison and a former California Supreme Court justice who upheld Allen's conviction and sentence. 

“My Take”—it's not going to work.  It shouldn't work.  Look, while there's something sad about an infirm man being executed, regardless of how you feel about the death penalty, we can't have a system where we say only the healthy can get the ultimate penalty. 

Joining me now, one of Clarence Ray Allen's attorneys, Raj Chatterjee and Ward Campbell, California supervising deputy attorney general.  Thanks to both of you for coming on the program.

Mr. Chatterjee, am I wrong?  I mean can you run a system where you say if you're healthy, you get executed, but if you're really sick, you don't? 

RAJ CHATTERJEE, CLARENCE RAY ALLEN'S ATTORNEY:  Well I think it's more than that, Dan.  The Supreme Court has limited the death penalty in a number of situations, for example, people who are mentally retarded and in other situations cannot be executed.

Executing Mr. Allen in his condition would be a bizarre and ghoulish spectacle that will violate our standards of decency.  He will be 76 on January 17, the date set for his execution.  He's blind.  He's disabled.  He had a massive heart attack on September 2. 

He has very few moments left to live in his life.  Wheeling him into the death chamber we believe would violate our standards and it's something that both mercy and compassion as well as the Eighth Amendment counsel in foregoing and letting him spending—letting him spend the remaining few days of his life secure in prison. 

ABRAMS:  I tell you I'm more concerned about...

(CROSSTALK)

ABRAMS:  ... system as a whole.  I mean it just—you talk about it being bizarre and ghoulish.  You mean more so than a healthy person who will have sort of probably more of a physical reaction than someone who is infirm.  I mean if you really want to get down to the gruesome details. 

CHATTERJEE:  Well there are a couple points.  And we have to draw these lines as to what our society's willing to tolerate and not tolerate.  There are two issues that the death penalty has to address in order to be legal.  It has to have a deterrence value.  It has to have some retribution value. 

ABRAMS:  No, it doesn't...

(CROSSTALK)

ABRAMS:  Juries do not have to find either retribution or deterrence.  They don't.  They can simply say if they—the person has been charged with a crime and the death penalty is on the table, they don't have to say why. 

CHATTERJEE:  Well (INAUDIBLE) isn't the death judgment.  The jury has to find a number of aggregating circumstances...

ABRAMS:  That's right.

CHATTERJEE:  At a matter of law, the Supreme Court has found that the death penalty has to have a deterrence effect, a measurable deterrence effect and a measurable retribution effect.  Here Mr. Allen has already spent 23 years on death row, in conditions that courts have found unconstitutional.  He has been forced to undergo medical conditions that a federal judge has found to be in violation of the Eighth Amendment. 

ABRAMS:  They should have just let him die, you mean, when he was ill, right? 

CHATTERJEE:  No, we don't believe that.  Of course not.  They need to give him (INAUDIBLE) medical care, but what they should do in this situation, given his condition is much more consistent with our standards as Americans and as Californians not to wheel in somebody who's 76 years old on death's door in order to...

ABRAMS:  Mr. Campbell, what do you make of it? 

WARD CAMPBELL, CA SUPERVISING DEPUTY ATTY. GEN.:  Well I think the true spectacle, Dan, would be to spare Mr. Allen's life.  They mention Mr.  Allen's birthday.  The day after his execution would have been the 42nd birthday of Josephine Rocha, one of the three people who were killed at the Fran's Market murders back in 1980 due to Mr. Allen.

Frankly, if Mr. Allen's life is spared, that means that the system has made a decision not to defend itself, not to defend the witnesses who testify in cases.  That means that Bryon Schletewitz, Josephine Rocha, Douglas White would have died in vain and that frankly society doesn't care. 

(CROSSTALK)

ABRAMS:  Look, I agree with you on this one, but does it really say that if they're going to keep him in prison for life?

CAMPBELL:  Frankly, Mr. Allen, he talks about his last few days.  He wants laser eye surgery, to get his sight—he's legally blind.  He wants to get his sight back that way.  He wants a stress test to avoid heart attacks.  Frankly, he's doing everything he can to prolong his life. 

Mr. Allen is an eternal optimist, Dan.  I remember reading the coded correspondence he used to plan these murders back in 1980 to his son, in which he wrote at the top “happy days ahead”.  That's the way Mr. Allen still looks at life.  That's what he wants now.  And the true spectacle would be to allow this to go any day longer than the day separate—the execution, which is the only appropriate punishment in a case like this. 

ABRAMS:  Does it matter, do you think, in any case, and I asked Mr.  Chatterjee the broad questions.  Let me ask you the broader question, do you think it matters in any case what the physical condition—see because I don't think that you can start determining when the death penalty will be implemented or not implemented, based on a particular person's health. 

CAMPBELL:  There's no principle way to do that.  And frankly Mr.  Allen's attorneys have not articulated one here.  The only limitation is on mental capacity.  And frankly, Mr. Allen has shown he still has the complete mental capacity he's always had to communicate, to manipulate.  Frankly he continues to show no remorse, to deny any involvement in these crimes, despite overwhelming evidence. 

That's the only limitation.  He doesn't have it.  He can't show it. 

And so there's no reason not to continue with the execution as scheduled. 

ABRAMS:  Mr. Chatterjee.

CHATTERJEE:  Mr. Campbell overstates this case, as he's been over overstating his papers.  Mr. Allen is very remorseful about the deaths.  There (INAUDIBLE) issues about this case...

CAMPBELL:  He's never...

(CROSSTALK)

CAMPBELL:  He's never shown any remorse.  I'm sorry.  I can't allow that to be said.  I have never heard any statement of remorse by Mr. Allen, Mr. Chatterjee...

(CROSSTALK)

ABRAMS:  Has he...

CAMPBELL:  I've had this case for 24 years...

ABRAMS:  Let me ask—Mr. Chatterjee, has he ever publicly stated, or even to the prosecutors, that he's sorry about what he did? 

CHATTERJEE:  There are lingering about his case.  There are (INAUDIBLE) issues about his case.  The question here is what is just 23 years after being locked up in California's death row...

(CROSSTALK)

ABRAMS:  Shouldn't he be grateful that he was allowed to live the extra time and that the process...

CHATTERJEE:  Mr. Allen, in the words of Daniel Vasquez (ph), a former warden who supervised Mr. Allen, is a shadow of his former self.  He is not a threat to anyone.  This is allowing him to spend the remaining few days of his life in prison.

CAMPBELL:  Mr. Allen was already in prison...

(CROSSTALK)

CAMPBELL:  ... three people were murdered. 

(CROSSTALK)

CHATTERJEE:  ... is inconsistent with our standards of decency. 

ABRAMS:  All right.  All right.  Mr. Chatterjee gets the final word.  Raj Chatterjee and Ward Campbell, thank you very much.  Appreciate you coming on the program. 

Coming up, the American high school student who ended up in Iraq is back in the U.S.  I say why is the media celebrating this kid?  He did something really dumb and dangerous.  It's my “Closing Argument”. 

And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing sex offenders before they strike.  Our search continues in Kentucky.  Authorities are trying to locate Mark Frost.

He's 45, six-two, 232, was convicted of criminal sexual misconduct with a child younger than 12, has not reported his address with the state.  If you've got any information on his whereabouts, Kentucky state police want to hear from you, 502-227-8781.  Be right back. 

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why is a 16-year-old American who made it into Iraq alone being treated like some sort of heroic modern day mini Lewis or Clark?  Why isn't he being excoriated and ridiculed for his reckless hubris, venturing into a war zone where hundreds have been kidnapped and thousands killed, where the 101st Airborne had to rescue him and then spend a day and a half babysitting instead of doing other important work.

And what if he'd really gotten into trouble?  Then they might have had to risk their lives to save him.  Farris Hassan said he wanted to better understand what the Iraqis were living through after taking a course in—quote—“immersion journalism”, where the writer apparently lives the life of his subject.  Well part of learning about journalism is learning to be smart and he failed there.  Anyone from this network, for example who goes to Iraq, only does so after a training program and with security.  And I fear he and others his age are learning another terrible lesson, that you can become a media darling just by putting yourself in harm's way. 

Upon his return last night he said—quote—“I do want to tell you how flattered I am.  The media has been very, very kind to me.  Well he's right.  The media has been very kind to him, too kind.  I'm not saying he should be prosecuted or otherwise tormented.  After all, he's just a kid and there's nothing to suggest he was going to help the terrorists, but everyone seems to think it's just kind of cute that this kid named Farris whose name sounds a whole lot like Ferris, as in the movie “Ferris Bueller's Day Off” took off from school to go to Iraq. 

Would we celebrate a kid who runs into a fire to observe how firefighters work before they have to rescue them or would we wink and smile at the tenacity of the boy who sneaks into a quarantine area to immerse himself in the life of the sick, not to mention the fact the so-called family friends in Lebanon helped him.  They should be condemned for helping put this kid in harm's way. 

No question it's a compelling story with all the twists and turns of an after-school special, but let's make sure that Farris Hassan's days off are viewed for what they were.  Downright dangerous.  While his parents have said they intend to punish him, the rest of us need to make sure we don't lionize him. 

Coming up, Scott Peterson's former attorney told me he thinks Scott Peterson is innocent.  We've got a lot of you writing if on our big interviews.  E-mails up next.

(COMMERCIAL BREAK)

ABRAMS:  We're back.  I've have my say, now it's time for “Your Rebuttal”.  On Friday we showed you some of the interviews with attorneys making news in 2005, including Scott Peterson's former attorney, Matt Dalton, who says not only that Peterson should not be on death row, but he thinks he's innocent. 

A lot of you writing in.  Bob Schmitz from Summerfield, Florida, “Scott Peterson was not proven guilty beyond a shadow of a doubt in court.  So in my opinion he ought not to have been found guilty.”

Bob that would be interesting if the standard of proof was beyond a shadow of a doubt, but it's not.  It's beyond a reasonable doubt, so you may want to rethink your position.

I also asked the tough questions of former U.S. Attorney General Ramsey Clark, who is now a member of Saddam Hussein's defense team.  Marion from San Antonio, Texas writes, “It's great that Mr. Clark is supporting Mr. Hussein's civil rights.  What about the rights of a U.S. citizen?  I couldn't even find an attorney that would take my case of disability discrimination and failure to accommodate.”

I was off for a few days last week.  Lisa Daniels filled in for me and in her “Closing Argument” said that Nazi concentration camp guard John Demjanjuk should be deported. 

Riney writes, “The reporter who filled in for Mr. Abrams tonight should be fired for her personal remarks about Mr. Demjanjuk.  I want to say that I do not have a dog in that fight, but I feel that the people who report the news to the public should do just that.”

Well Riney, then you shouldn't watch this program, because I will and when Lisa is filling in, Lisa will offer an opinion on certain topics.  Well make it clear it's our opinion.  I think that's a whole lot more honest than those who claim to have no opinion and then just let their bias seep through.  Wouldn't you rather? 

Your e-mails abramsreport—one word -- @msnbc.com.  We go through them at the end of the show.  I feel relaxed.  I've had a few days to you know...

(SOUNDS)

ABRAMS:  All right.  We had a little extra time.  That does it for us tonight.  Coming up next—I had some time off, you know...

(SOUNDS)

ABRAMS:  ... “HARDBALL” with Chris Matthews.  See you tomorrow.

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

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