updated 1/10/2006 10:27:05 AM ET 2006-01-10T15:27:05

Guest: Brad Hamilton, Tamer El-Ghobashy, Larry Kaye, John Ashcroft

DAN ABRAMS, HOST:  Coming up, senators draw the battle lines during day one of the confirmation hearing for Samuel Alito to the U.S. Supreme Court. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  We talk with former Attorney General John Ashcroft about Alito's nomination, about the secret program to spy on certain Americans that he ultimately approved, and other controversial issues.  It's one of his first interviews since he left government. 

And police arrest two men they say bound and murdered a Virginia musician and his family, but not until they allegedly killed another Virginia family first. 

Plus, the FBI reportedly questioning at least one of the men last seen with missing honeymooner George Smith on a Royal Caribbean cruise. 

The program about justice starts now.   

(END VIDEOTAPE)

ABRAMS:  Hi, everyone.

First up on the docket, Supreme Court nominee Samuel Alito survives day one of his battle for Senate confirmation.  After hearing 18 members of the Judiciary Committee show him how much they know about the law and tell him what they do and don't want to hear, Alito gave a brief statement about how—who he is, where he came from, and reminded the Senate there's a difference between a practicing lawyer and a judge. 

(BEGIN VIDEO CLIP)

JUDGE SAMUEL ALITO, SUPREME COURT JUSTICE NOMINEE:  I am who I am, in the first place, because of my parents and because of the things that they taught me.

And I know from my own experience as a parent that parents probably teach most powerfully not through their words, but through their deeds.  And my parents taught me through the stories of their lives.  And I don't take any credit for the things that they did or the things that they experienced, but they made a great impression on me.

My father was brought to this country as an infant.  He lost his mother as a teenager.  He grew up in poverty.

Although he graduated at the top of his high school class, he had no money for college.  And he was set to work in a factory but, at the last minute, a kind person in the Trenton area arranged for him to receive a $50 scholarship.  And that was enough in those days for him to pay the tuition at a local college and buy one used suit. 

And that made the difference between his working in a factory and going to college.

My mother is a first-generation American.  Her father worked in the Roebling Steel Mill in Trenton, New Jersey.  Her mother came from a culture in which women generally didn't even leave the house alone, and, yet, my mother became the first person in her family to get a college degree.

She worked for more than a decade before marrying.  She went to New York City to get a master's degree.  And she continued to work as a teacher and a principal, until she was forced to retire.

After I graduated from high school, I went a full 12 miles down the road, but, really, to a different world, when I—I entered Princeton University.  A generation earlier, I think that somebody from—from my background probably would not have felt fully comfortable at a college like Princeton.  But, by the time I graduated from high school, things had changed.

And this was a time of great intellectual excitement for me.  Both college and law school opened up new worlds of ideas.  But this was back in the late 1960s and early 1970s.

It was a time of turmoil at colleges and universities.  And I saw some very smart people and very privileged people behaving irresponsibly.  And I couldn't help making a contrast between some of the worst of what I saw on the campus and the good sense and the decency of the people back in my own community.

When I became a judge, I stopped being a practicing attorney.  And that was a big change in role.

The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand.  But a judge can't think that way.  A judge can't have any agenda.  A judge can't have any preferred outcome in any particular case, and a judge certainly doesn't have a client.

The judge's only obligation—and it's a solemn obligation—is to the rule of law.  And what that means is that, in every single case, the judge has to do what the law requires.

(END VIDEO CLIP)

ABRAMS:  Judge Alito will face some tough questions when the question-and-answer session starts tomorrow.  But has got some heavy hitters out there supporting him, including former Attorney General John Ashcroft.

And he joins us now.  Thank you very much for coming on the program. 

Appreciate it. 

JOHN ASHCROFT, FORMER ATTORNEY GENERAL:  Dan, it is great to be with you. 

ABRAMS:  All right, let me ask you.  The—the judge talks about the rule of law and says that's really the—the job of a judge.  But, as you well know, different judges interpret the rule of law differently. 

Different judges draw that line at different places.  So, is that really helpful in the analysis? 

ASHCROFT:  Oh, I think it is. 

I think it signals that, as a judge—and this can be confirmed in this judge's record—that he repairs to that which has been established in the law and in the Constitution, as the main guideposts for the way he will make decisions. 

And one of the areas that is expected to be explored with him—I don't know to what extent he will talk about a number of these things—is the area of abortion.  And I know that, on various abortion cases, he has come out differently based on how the specific facts of the case relate to the rules that have been established or announced by the courts. 

For example, on two occasions, I know, he struck down proposed regulations as being nonconforming with the—with the law, as it has been announced by the—the Supreme Court.  And, on another occasion, he said, well, that one meets the test. 

It is pretty clear to me that this is a person who references what he does by the law.  And I think that's an assurance to the American people.  Absent the rule of law, you're just out there doing what you want to do, and every person is a law unto himself.

And, obviously, that's not something the Americans are—the American people are looking for...

ABRAMS:  But as...

ASHCROFT:  ... in this judge. 

ABRAMS:  But, as you know, it is different being a federal appeals court judge than being a Supreme Court judge. 

And the argument will go that, back then, he had to apply the rulings of the U.S. Supreme Court, and, yet, as a Supreme Court justice, he has got a lot more flexibility. 

ASHCROFT:  Well, I think he sees himself bound by the law, bound by the Constitution, and...

ABRAMS:  But you can interpret the Constitution in different ways. 

ASHCROFT:  Certainly, you can.  And there's no question about it, particularly in tender areas, where there haven't been very strong indications in the Constitution or in the language of the Constitution itself. 

But this individual is an individual of great talent who has had lots of experience, hundreds of opinions, thousands of cases, and, in those opinions and cases, has shown himself to be a very careful scholar and to treat the law with great respect, and to—to repair to the law for his decision-making. 

And I think that's what he was signaling, that the judge can't have an agenda.  The agenda of the judge is the rule of law, not the outcome, in a specific case. 

ABRAMS:  Let—let me ask you, do you think he is going to have a hard time getting around this?  And—and you have obviously heard a lot about it.  We have all heard a lot about it. 

This is a 1985 job application, where he said the following: “It has been an honor and source of personal satisfaction for me to serve in the Office of the Solicitor General during President Reagan's administration and to help advance legal positions in which personally—and I personally believe very strongly.  I'm particularly proud of my contributions in recent cases in which the government has argued that racial and ethnic quotas should be not allowed and that the Constitution does not protect a right to an abortion.”

Now, he will, unquestionably, argue that, as an attorney, I took certain positions.

But, here, he's talking about how he feels personally.  Is he going to be able to deal with that? 

ASHCROFT:  Well, I think so.  I think that's what he indicated in his remarks today. 

He set the stage for an understanding that he would act differently as a judge than did he as an individual who was advocating for a particular result.  And, as a matter of fact, I think, if you read his decisions, as I have indicated earlier, the decisions don't refer and reinforce his personal beliefs. 

The decisions make reference to and implement the law that he has ascertained is applicable in the particular case.  He is a great student. 

He has a tremendous intellect.  He is the kind of expert, he's the kind of

·         quote—“brain surgeon” in the legal arena that you would want operating in areas that require delicate and—and important decision-making. 

ABRAMS:  So, he's not going to argue, well, that was just a job application, and I was trying to get a job?  That's not the kind of argument you make as—as you are being considered for the U.S. Supreme Court. 

ASHCROFT:  I think he set up a response today by saying, there are things you do when you're an advocate that you don't do when you're an arbiter. 

ABRAMS:  Right. 

ASHCROFT:  And a judge is an arbiter of decisions, and he has to listen carefully and decide on the facts and the law of the case before him. 

ABRAMS:  All right.  Now I'm going to ask to you put on your former attorney general and former senator's hat.  So, here we have got the—the dual question. 

ASHCROFT:  I will—I will be a two-headed monster... 

(CROSSTALK)

ABRAMS:  Exactly.  Exactly. 

ASHCROFT:  I have been called that before.

(LAUGHTER)

ASHCROFT:  I can speak out of both sides of my mouth. 

ABRAMS:  Well...

ASHCROFT:  I don't know if I can wear two hats. 

(LAUGHTER)

ABRAMS:  And the goal—the—the purpose of me asking you both is because there is this tension going on right now between what kinds of questions Judge Alito should answer, what kinds of questions he shouldn't answer.  The Democratic senators in particular are saying, we're going to demand answers from you.  You have got to answer questions.  This is different.  This is to replace Justice O'Connor. 

Let me let you listen to a little of what Joe Biden had to say today. 

(BEGIN VIDEO CLIP)

SEN. JOSEPH BIDEN (D), DELAWARE:  You know what?  The American people are entitled know before we make him president, before we make her senator, before we make him congressman, what they believe on the major issues of the day.

But judges, Supreme Court nominees, as long as they're smart and honest and decent, it really doesn't matter what they think.  We don't have to know.

I can't fathom—can't fathom that that was the intent of the founders.  They intended the American people to know what their nominees thought.

(END VIDEO CLIP)

ASHCROFT:  Well, you know, I think it is important to know that a judge is asked to rule on a specific case, and specific cases come up with different factual bases and circumstances that shape what ought to be the way the law relates to those facts and circumstances. 

And for a judge to announce himself on a case before they have the complete array of circumstances and all the facts there could be indeed prejudicial.  And it is not that we want to be ignorant about people who are going to be involved in administering the law as, of course, members of the Supreme Court of the United States.  It is that we want those people to be impartial, and we don't want them to have an incapacity to rule on the cases, when the case, with all of the individual, unique characteristics, permutations, all the facts come there. 

We don't want them to be in a setting where they are seen to have a predisposition on that case.  And for that reason, it's been a tradition, for quite some time, for Republican nominees and for Democrat nominees not to take positions in advance that would make difficult the—the way they would professionally conduct themselves on the court. 

ABRAMS:  Haven't we created, though, a ridiculous system, because if the judges or the candidates have written about the topic, then they have to answer questions?  But, if they have said nothing that it, they don't to have answer questions about it.  And, as a result, all we're getting are responses to written documents or legal opinions. 

And, as long as they haven't said anything about it, they don't have to say anything.  And that seems to encourage nominations of people who don't have any paper trail. 

ASHCROFT:  Well, one of the things we don't have to worry about in this case is a nomination of an individual without a paper trail. 

(CROSSTALK)

ASHCROFT:  This individual has written hundreds of legal opinions on scores of legal issues.

The way in which, fairness with which, the intellect with which, the kind of carefulness with which Judge Alito has handled himself is there for viewing as a judge over a decade on very important court of appeals, handling the most sensitive issues. 

So, yes, I suppose there is a way in which you can say that letting people off the hook, if they have never had a written opinion before, and letting them duck the questions, might be a case providing difficulty or it might be an anomalous situation somewhere. 

ABRAMS:  Yes. 

ASHCROFT:  It is not anomalous here. 

ABRAMS:  All right. 

ASHCROFT:  This is a guy who is well staked out. 

ABRAMS:  All right. 

Attorney General Ashcroft, if you could stay with us for a moment, I just want to ask you a few more questions. 

ASHCROFT:  Sure.

ABRAMS:  I also want to ask you about Harriet Miers, what happened with that, and talk to you about some of these leak investigations as well.

And, coming up, Philadelphia police arrest two men in the brutal killings of a Virginia musician and his family, after they say the men killed three members of another family, tied them up, just like they tied up the first family. 

Plus, FBI agents investigating missing—missing honeymooner George Smith, they're now reportedly questioning a 20-year-old passenger from New York who was one of the last people to see Smith alive. 

Your e-mails, ABRAMSREPORT@MSNBC.com.  Please, include you name, where you're writing from.  I respond at the end of the show.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. JON KYL ®, ARIZONA: “A judge or a candidate for election or appointment to judicial office shall not, with respect to cases, controversies or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.”

In other words, no judicial nomination should answer any question that is designed to reveal how the nominee will rule on any issue that could come before the court.

(END VIDEO CLIP)

ABRAMS:  That's Republican Senator Kyl today at Samuel Alito's confirmation hearing. 

We're back with the former U.S. Attorney General, former U.S. Senator John Ashcroft, who joins us again.

Let me ask you, is there some hypocrisy on the part of some of the Republican senators who are now saying to Judge Alito, you don't to have answer questions about your positions; feel free to say no?  And, yet, when it came to Harriet Miers, the—the reason that her nomination was pulled clearly was because many on the right were concerned that she wasn't going to rule the way they wanted. 

ASHCROFT:  Well, I don't know what the reason is.  You may know. 

I dealt with her when I was attorney general and she was working in the president's administration.  She's a wonderful human being and a good lawyer.  I don't know what the reason is.  And my own sense is that, whatever the reason is, she decided not to go forward with the nomination.  I don't think you can presume that they would have had a different standard for Harriet Miers in a hearing that they have for this judge or they have had for previous judges, both Democrat and Republican. 

This is not a new format for interviewing judicial nominees. 

ABRAMS:  No, that's true.  I'm—and I'm not saying it about—about the hearings.  But there is something odd about the fact that, look, almost everyone will agree that, in the end, they had to pull—or she had to pull her nomination because there was so much opposition from the right, people concerned that she just simply wasn't going to vote their way on the crucial issues. 

ASHCROFT:  Well, I—I don't know what poll you're referring to about everyone agreeing there.

I—I'm not able to draw that conclusion.  And if people believe that she wasn't acceptable to them, that's their right to do so.  She chose to withdraw her nomination.  She's a person of great integrity and a person of great capacity.  I respected my opportunity to deal with her when she was at the White House.  And she made a decision which I have to respect as well. 

ABRAMS:  All right. 

Let me ask you this.  And I don't know if you can speak on this topic, but let me ask you about it anyway, the NSA surveillance program.  There's a report in “The New York Times” that Andy Card and Alberto Gonzales had to make an emergency trip to see you in the hospital in March of 2004 -- actually, it may not have been “The New York Times”—to get the program recertified, because the undersecretary, the under-attorney general who was serving that role at that time, James Comey, had balked. 

Is that true? 

ASHCROFT:  I'm not going to talk about programs that were protecting the rights and liberties of Americans in the war on terror. 

I am willing to comment on the—the president's capacity and responsibility to exercise the powers that he has to make sure that we remain free and safe.  But I'm not going to talk about specific programs. 

In—in the deadly game of hide and seek, if the hiders know what the seekers are doing, and where they are seeking all time, it makes hiding much easier.  And this is a deadly game.  And I'm not interested in making it easier for the terrorists by letting them know more—more about what we do and what we don't do. 

ABRAMS:  Even though what we're really talking about is a legal issue, right?  I mean, we are—we are—everyone knows that the NSA engages in spying.  The question was whether they have to get a wiretap or not. 

ASHCROFT:  Well, I am willing to talk about the president's authority to undertake activities in defense of the country...

ABRAMS:  All right, let me ask you about that. 

ASHCROFT:  ... and especially in light of the act to authorize the president to use all means and force necessary to defend us against terror, and in light of court decisions which recognize that broad grant of authority by the Congress, and including the Supreme Court of the United States in Hamdi case.

It is pretty clear to me that the president has significant authority to defend the United States, and that authority is—is parallel and—and multiple, so that, in some cases, it would be through the use of the Foreign Intelligence Surveillance Act.  And, in other cases, it might be another—other ways. 

ABRAMS:  But—but—but, so, ultimately, though, there is no limitation on the president's authority...

ASHCROFT:  Oh, I think that's absolutely wrong.

ABRAMS:  ... meaning the—the president gets to decide it?

ASHCROFT:  That's absolutely wrong, Dan.

I—I don't ever want to suggest that the president is—is without limitation.  The president lives under the Constitution of the United States. 

ABRAMS:  But who interprets that? 

ASHCROFT:  And—well, the courts interpret it, and they—they have interpreted. 

The—the president, of course, makes an effort to interpret it and to guide his own behavior by it.  But I—I would not be one to say that there are no limits on what the president can and should do.  As a matter of fact, I believe the Constitution is the controlling law, not only on the president, but on the Congress. 

It, in fact, is the supreme law of the land for all of us. 

ABRAMS:  Let me ask you about the leak investigation.  I want to read you this quote from an editorial in the generally conservative “New York Sun.”

“The zeal to prosecute these leak cases came in 2002, after then Attorney General John Ashcroft promised the chairman of the Senate's Intelligence Committee he would make the execution of the current law against leakers a priority, as a response to Senator Shelby of Alabama's request to rewrite that law to make it more punitive and broader in scope.”

True? 

ASHCROFT:  Well, we worked to make sure that we would do what we could to stop leaks. 

As I said earlier, in the deadly game of hide and seek, the hiders have a big advantage if they know everything the seekers are doing.  The leaks of classified and confidential and important law enforcement material are very—can be very damaging.

ABRAMS:  Do you support investigating the press on those? 

ASHCROFT:  When it is necessary in order to get to the bottom of the situation, we have asked as well that the press cooperate. 

The press should not be a party to leaks which damage the national security of the United States. 

ABRAMS:  And even if, in certain cases, it is—it is important to get the information out? 

ASHCROFT:  Well, classified information should not be leaked. 

If we leave it in the judgment of everyone who handles information, that they have the right, thinking that this is important, so, therefore, I'm going to violate the law, we will have nothing but chaos.  And, very frequently, very—pieces of—of information which appear by themselves to be innocuous can, when assembled with other portions of information which also appear to be innocent, be put together to reveal something that impairs the national security of the United States. 

ABRAMS:  All right.  I...

(CROSSTALK)

ASHCROFT:  It is unacceptable to let that happen. 

ABRAMS:  Got to ask you a final question.  True, you—you were just sworn into the D.C. bar as an attorney today? 

ASHCROFT:  I was admitted to the District of Columbia bar as an attorney.  I have been an attorney for quite some time, but not as a member of the bar in the District. 

ABRAMS:  Did they—did they make you take the test? 

ASHCROFT:  Of course not. 

ABRAMS:  They must—you must...

(LAUGHTER)

ASHCROFT:  Of course not.

(LAUGHTER)

ASHCROFT:  It's a good thing, too, by golly.

(LAUGHTER)

ASHCROFT:  You know, the last bar...

(CROSSTALK)

ABRAMS:  I can just imagine you sitting there with the rest of these law students.  Hey, isn't that Attorney General Ashcroft sitting there next to me? 

ASHCROFT:  Well, I—you know, there were a number of—of course, people join the D.C. bar who are members of bar associations and bar organizations around the country.  And they do it at various stages in their life. 

ABRAMS:  Right. 

ASHCROFT:  So, I was by no means the oldest of the individuals here. 

Both my wife and I joined the D.C. bar...

ABRAMS:  Well...

ASHCROFT:  ... after years of being involved in—in—as lawyers in other settings. 

(CROSSTALK)

ABRAMS:  Congratulations on that.

ASHCROFT:  Thank you very much. 

(LAUGHTER)

ABRAMS:  And thank you very much, sir, for coming on the program. 

(CROSSTALK)

ABRAMS:  A real pleasure to have you on. 

ASHCROFT:  Thank you. 

ABRAMS:  Be right back.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, all last week, we told you about a murder mystery in Virginia, a family of four found dead in their home, bound, with their throats slashed.  Just last night, an arrest, but not before another family was brutally murdered the same way in their home.  Got the details.

First, the headlines.

(NEWS BREAK)

ABRAMS:  We are back.

A major development in a case we had been following last week. 

Police in Philadelphia have arrested two men in connection with the murders of two families in Richmond, Virginia.  Bryan and Kathryn Harvey and their daughters, 9-year-old Stella and 4-year-old Ruby, were found bound in the basement of their home, their throats slashed.  Bryan was a member of the group House of Freaks. 

And, then, Friday, only five minutes away from the Harveys' home, Percyell Tucker, his wife, Mary, and their daughter, Ashley, were all found bound and killed as well. 

Now, there are reports that Ashley may have actually helped the men in the Harvey family murders, before they allegedly killed her.  The two men, Ray Dandridge and Ricky Gray, were in court this afternoon in Philadelphia.  They agreed not to fight extradition to Virginia. 

Joining me now on the phone is “New York Daily News” writer Tamer El-Ghobashy, who was in the courtroom for the hearing, and Clint Van Zandt, MSNBC analyst and former FBI investigator who has been following the story and writing a blog for us. 

All right, Tamer, first, let me ask you, how were they able to link these two cases together, as far as you know? 

TAMER EL-GHOBASHY, “THE NEW YORK DAILY NEWS”:  Well, I have to—I have to say, the Richmond, Virginia, police have been very careful about what they have been releasing to the public, in terms of how they have been investigating the case. 

But it seems as though Ashley may have been the obvious link in the case, where witnesses apparently placed her at the scene of the Harvey murder prior—you know, in the hours that the Harveys were believed to be killed.  And it seems as though, when she was murdered and her picture started appearing in the various publications and on television, victims of a—a break-in that these two men are—are suspected in doing may have come forward and—and also pointed her out as an accomplice. 

ABRAMS:  Here's—let me play a little piece of sound from one of the victims of the robbery that you're talking about. 

(BEGIN VIDEO CLIP)

ROGER TONEY, ROBBERY VICTIM:  Couple knocked on the door and said they needed directions or needed to use a phone.  My family is lucky, I believe.  And I'm glad they got caught before it happened to anybody else. 

(END VIDEO CLIP)

ABRAMS:  And—and, so, that family was apparently robbed, but not killed, and they believe by the same gang?

EL-GHOBASHY:  Yes.  They're being—I'm not—they are—I think Richmond police are—or Richmond prosecutors are going to charge them in that robbery as well. 

ABRAMS:  Tamer, any indication that they knew who Bryan Harvey was? 

EL-GHOBASHY:  At this point, it doesn't seem that they—that they knew who—who Bryan or—Harvey—or his wife or who the children were. 

The indications that we're getting from investigators—and, again, they're being very careful about what they say—is that this may—the targeting of the Harvey—Harvey family may have been a crime of opportunity. 

ABRAMS:  They were supposed to be having a New Year's party only minutes after their house was apparently almost set ablaze after they were all killed there. 

Were—were the two sets of murders done the same way, meaning bound and gagged and throats slit? 

EL-GHOBASHY:  It appears as though, yes, both—both murders, except, in the Baskerville case, the—there was no attempt to set the house on fire. 

ABRAMS:  You were in court today.  Did these guys, defendants, have anything to say for themselves? 

EL-GHOBASHY:  They were—you know, they were asked by the judge to answer a series of questions to determine whether, you know, they were—that they understood what was happening, in terms of this—them waiving their rights on extradition hearing. 

They did respond with yes and no answers, and, through their attorneys, made the request and made the motion that they don't want to be interviewed or interrogated or have their belongings searched or be subjected to any lie-detector test or a lineup in Richmond without the presence of an attorney.

So, there was very little said personally from them.  However, they did make that request or that motion through their court-appointed attorneys here in Philadelphia. 

ABRAMS:  Clint, kind of a surprise, right, that this is—this is who the police think is responsible, a crime of opportunity? 

CLINT VAN ZANDT, MSNBC ANALYST:  Well, what has kind of put this together now, Dan, as you know, when we talked about this last week, originally, the police suggested there was no evidence of break-in, which still may be the case. 

They may have just come through an unlocked door.  But they also said there was no evidence that the house had been ransacked.  I think that caused some investigators to say, OK, nothing to suggest a burglary or a robbery.  Then, maybe it was targeted right at the family.  And who might have done it?

Now, in hindsight, it looks like the authorities have actually identified objects that were taken from the house.  Of course, that drives it into another category of offender. 

ABRAMS:  Tamer, is that—is that right, that now the authorities believe that—that some items were taken from the Harveys' home? 

EL-GHOBASHY:  Yes, that's true. 

Initially, they had said that they were trying to determine if objects

were taken from the Harvey home through interviews with family member who

may have known the—you know, the contents of the home.  But, again, it -

·         they—again, that, you know, they never followed up with—you know, they never reclassified it as a murder and a—I'm sorry—as a homicide and a robbery until the arrests were made on Saturday. 

ABRAMS:  And, Clint, what of this—this woman who was killed as part of this family?  And now some witnesses are saying, oh, you know, I saw her with those guys? 

VAN ZANDT:  Sure.

Yes.  Well, you know, there's two women now, Dan.  What—what we have got—and as—as I wrote on my column on THE ABRAMS REPORT Web page today, Ricky Gray's wife was killed, was murdered, strangled, beat to death in Pittsburgh early in December.

And then we have this friend, perhaps girlfriend, running mate of theirs, Ashley, who was allegedly seen at the Harvey site, who was identified by an eyewitness as having been part of the house burglary, where they went in and left two victims alive. 

And now, it seems, Dan, that something went terribly wrong in this triad of criminals, and she wound up being murdered, as well as her parents. 

ABRAMS:  Don't forget to take a look at Clint's blog on our Web site, ABRAMSREPORT.MSNBC.com. 

Tamer El-Ghobashy, Clint Van Zandt, thanks a lot.  Appreciate it. 

EL-GHOBASHY:  Thank you. 

VAN ZANDT:  Thank you. 

ABRAMS:  Coming up, what happened on the Royal Caribbean cruise ship the night George Smith disappears?  Well, we have got a lot of news to report from the weekend.  It seems some passengers on that ship are now being questioned, and some others are talking about a possible fight between George and his wife that night.  The details are next. 

And, later, the Texas mom who admitted to drowning her five children back in court after another court overturned her murder conviction.  I say this is a big waste of money.  Andrea Yates admits she did it, and everyone agrees she's mentally ill.  It is my “Closing Argument.”

(COMMERCIAL BREAK)

ABRAMS:  Coming up, more passengers on board that cruise ship where missing honeymooner George Smith disappeared are now speaking out about what they saw the night he allegedly fell overboard—allegedly.

The details are next.

(COMMERCIAL BREAK)

ABRAMS:  We have got new details on that investigation into what happened to missing honeymooner George Smith. 

We're learning more about a group of young men seen partying with Smith and his new wife, Jennifer Hagel, on that Royal Caribbean ship the night he went missing.  They are believed to have been seen leaving his cabin between 4:00 and 4:30 the morning he disappeared. 

And now, reports indicate, the men are being questioned—or at least one of them is being questioned.  We learned from our exclusive interview with the captain of the ship that the men had already been warned about the behavior described as obnoxious and rude to other passengers and the crew.

And just days after they had partied with Smith and Hagel, allegedly, they were kicked off the ship after an 18-year-old woman claimed she was raped by them—the alleged assault caught on two separate videotapes, now still being reviewed by the authorities.  At least the Italian prosecutors were not convinced it was rape. 

There's also new information about a fight that Hagel and Smith may have had that night—some saying she was flirting.  Witnesses say Hagel kicked Smith in the groin before leaving the disco where the two were partying.  “The New York Times” also reports that a federal grand jury in Connecticut is investigating Smith's disappearance—a lot of stuff to talk about. 

Joining me now to discuss it, the man who had an exclusive on this, “New York Post” reporter Brad Hamilton, former Connecticut prosecutor Susan Filan.  And maritime attorney Larry Kaye has represented Royal Caribbean in the past.  He's not representing them here, but he has been in contact with their legal team. 

All right, Brad, let me start with you. 

Let's—let's take these one by one.  First, on this issue of questioning some of these young men, I mean, we're now talking, what, six months later or something?  This is—what, this is the first time that they have questioned these young men? 

BRAD HAMILTON, “THE NEW YORK POST”:  Well, they have been questioning them for some time, at least one, anyway. 

This is the young man known as Rusty (ph).  He's a kid from Russia.  And he's 20 years old.  He lives in Brighton Beach.  They have—the FBI agents have actually interviewed him on two separate occasions.  And he appeared before this grand jury that you—that you referred to in Connecticut. 

He was one of the three Russian kids who was with George the night that he disappeared.  In fact, we're talking about within maybe as little as half-an-hour or so before he—he may have gone overboard. 

ABRAMS:  But let's be clear.  He's not being considered a—a suspect or anything like that at this point? 

HAMILTON:  Well, I think—I mean, he hasn't been named as a suspect. 

ABRAMS:  Right. 

HAMILTON:  But they certainly are hammering away at his story. 

He has apparently had a couple inconsistencies in the two accounts that he gave to the agents.  And they are putting heavy pressure on him, on his family, on his friends, trying basically to—to break him down. 

ABRAMS:  We should say we reached out to his attorney, who said that they had no statement about anything that's going on. 

Susan, look, you're a former Connecticut prosecutor.  You have still got friends up there in Connecticut.  You know anything about this grand jury? 

SUSAN FILAN, MSNBC LEGAL ANALYST:  Well, Dan, what I can tell you is that there have been inconsistent statements from day one on this case.  And that's what led law enforcement to hit this so hard in their investigation and leave them thinking this is much more likely foul play than what Royal Caribbean would like you to believe is a tragic accident. 

And I think the fact that there are reports now that there's a grand jury convened substantiates what I have been saying all along, which is that law enforcement is hitting this very, very hard and putting their absolute best people on it. 

(CROSSTALK)

ABRAMS:  Susan, as far as you know, the—the federal prosecutors in Connecticut are going under the theory that this was foul play? 

FILAN:  I can't answer that head on, Dan, but what I can tell you is that my sources believe that it is much more likely a case of foul play than an accident. 

ABRAMS:  All right, Larry, could that mean trouble for Royal Caribbean? 

LARRY KAYE, MARITIME ATTORNEY:  Oh, I don't think so at all. 

I think Royal Caribbean's purpose, Dan, has always been to find out what happened to George Smith.  This has never been a case about what Royal Caribbean thinks.  The captain expressed his own personal opinion that this was probably an accident, because, in the last 30 years, I—I think I can only think of one murder that has ever taken place on a cruise ship. 

And that was Leon Klinghoffer.  It is much more common for people to fall overboard in the rare instances when we do have people go overboard.  But I—I'm delighted that the FBI is pursuing this.  They have been since day one.  Royal Caribbean has cooperated fully with the FBI.  They have run the investigation. 

ABRAMS:  Yes. 

KAYE:  And, to me, this sounds like a positive development. 

ABRAMS:  This is what the captain had to say about these young men we have been talking about in my exclusive interview with him from last week. 

(BEGIN VIDEO CLIP)

ABRAMS:  And a few days after George Smith went missing, those same young men...  

MICHAEL LACHTARIDIS, RETIRED ROYAL CARIBBEAN CAPTAIN:  Right. 

ABRAMS:  ... were accused of raping...

LACHTARIDIS:  Well this is...

ABRAMS:  ... a woman on the boat? 

LACHTARIDIS:  ... this is under investigation, I cannot say more about this. 

ABRAMS:  They were kicked off the boat, weren't they?

LACHTARIDIS:  Yes, they were kicked off the boat.

ABRAMS:  Why did you decide to kick them off the boat?

LACHTARIDIS:  Because this was—this accusation too much now.  I mean, you have like pre-warning.  You have a warning and then you cannot hold them any more. 

(END VIDEO CLIP)

ABRAMS:  All right. 

Brad Hamilton, let's talk about these other witnesses, who—they're now coming forward—the AP now saying they have sources, “The New York Times” reporting.  Everyone—everyone is going out with this.  You guys have been talking about this stuff for a while, I think.

But—but this—this notion of witnessing a fight in the casino between Jennifer Hagel Smith and George Smith? 

KAYE:  Yes.  Yes, exactly right. 

There are these two new witnesses who say there was this fight.  We're talking about some time between let's say maybe 3:00 and 3:30 in the morning.  The disco closes at 3:30.  We have George there with these Russian kids and another kid from Brooklyn—from California. 

And we have Jennifer, supposedly, with this 24-year-old guy from New Jersey, who says that she was sitting really close to him, and George and Jennifer then get into some sort of argument.  George calls her a hussy.  She stands up and kicks him in the groin.  He doubles over, and she stumbles out of the disco. 

We had previously heard that she was there with Lloyd (ph), this gentleman named Lloyd (ph), who was the casino manager, and that—that the altercation may have been about Lloyd (ph) and Jen, and that this casino manager and Jen may have gone off together. 

As you know, in any case, probably about 45 minutes or so later, she is found in a hallway, in a corridor, actually asleep on the floor by the...

ABRAMS:  Yes. 

KAYE:  ... by the ship's crew. 

ABRAMS:  Yes. 

All right. 

So, Susan, I—that could go toward the idea that maybe he was despondent or something, right? 

FILAN:  No, I don't think there's anything to that at all. 

Look, there's no question these people were partying heavily and that there was a lot of drinking going on that night.  She's so drunk, she passes out somewhere else on the ship.  He's so drunk, he can't get himself back to his cabin.  He is escorted back. 

When he gets there, she's not there.  Then they go around, the two Russians and the California teen, the ship, trying to find her.  They still can't find her.  He then goes back to his cabin, again, escorted, because, again, he's too drunk. 

There's no question that there was rowdy, crazy partying that night.  But whether she's flirting with somebody else or—that is, I think, to—just completely unimportant.  I think, for some reason, people are trying to impugn the wife now.  And I'm not sure why that is.  It really doesn't matter.  The question still is, what happened to George? 

ABRAMS:  But, you know—yes, but it would matter.  I mean, look, it is part of an investigation.  It matters.  I'm not saying it is dispositive, but you're not saying it's irrelevant, are you?

FILAN:  I'm saying it is not that big a deal. 

I'm saying that I don't think law enforcement thinks that's the key to the case. 

ABRAMS:  All right. 

FILAN:  There was drunken behavior.  There was—a lot of people with blackouts don't remember crazy stuff happening.  But I don't think that partying, rowdy part in the casino prior is the key to this case. 

ABRAMS:  All right. 

Brad Hamilton, Susan Filan, Larry Kaye, thanks a lot.  Appreciate it. 

Coming up, Andrea Yates, the Texas mom who admitted she drowned her five children, guess what?  She was back in court today, preparing to stand trial again, after her murder conviction was thrown out.  I say it is a massive waste of time and money.  It is my “Closing Argument.”

And our continuing series, “Manhunt: Sex Offenders on the Loose,” our effort to find missing sex offenders before they strike—today, we start our search in Louisiana. 

Authorities are looking for McDonead Williams.  He's 51, 5'9“, 165.  He was convicted of molesting a juvenile and fondling a child in 2001, hasn't registered his address with the state. 

If you have got any information on his whereabouts, please contact the Louisiana State Police Sex Offender/Child Predator Registry, 1-800-858-0551.

We will be right back.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument.”

I cannot believe that Texas mom Andrea Yates was back in court today, preparing to be tried again for killing her five children.  What a waste of time and resources.  This trial will be the antithesis of a search for the truth.  We know what happened.  She drowned her five kids in the bathtub and then called the police. 

She has never denied it.  Experts from both sides also agree she suffered from severe postpartum depression and schizophrenia.  She apparently thought she had to kill her kids to save them.  OK. 

But, under Texas law, you're only legally insane if you didn't understand that what you were doing was wrong.  The jurors didn't believe that was the case here.  After all, she did call the police.  But they did not give her the death penalty because of her mental illness. 

The first verdict was thrown out because a key prosecution psychological witness testified falsely.  Since the verdict was overturned, she has been in a secure mental institution, instead of a prison.  The only question now is, what should happen to her?  Where should she be held? 

Prosecutors want her back in prison immediately.  I say, what's the rush?  Would it be so horrible if this mentally ill woman continued to improve psychologically at a secure mental institution?  If the concern is that she might be deemed cured and then released, well, let me allay those concerns. 

'

She hasn't been tried for two of the children's murders.  There is no statute of limitations for murder.  So, if they're going to release her, prosecutors can retry her then to make sure she never walks free.  So, everyone agrees, she is and was mentally ill when she killed her kids.  Why can't they work out a deal which would help get her help, save taxpayers hundreds of thousands of dollars, and, yet, also ensure she doesn't walk?

Let's not let grandstanding lawyers or politicians prevent that sort of real justice from taking hold here. 

Coming up, a lot of you outraged by that judge who sentenced a man to just 60 days in prison after he confessed to raping a 6-year-old girl for years.  I was outraged, too. 

Your e-mails up next.

(COMMERCIAL BREAK)

ABRAMS:  We are back.

I have had my say.  Now it's time for “Your Rebuttal.”

On Friday, a Vermont—Vermont man confessed to repeatedly raping a 10-year-old girl for four years.  I was outraged the judge only sentenced him to 60 days, claiming it was the only way to get him counseling right away.  The judge also announced, after 25 years on the bench, he no longer believed in punishment. 

Almost all of you agree with Erica Boulay in Windsor, Vermont: “This man molested a child for four years, and the judge is worried about delaying treatment?”

Marsha Miller in Delaware: “Life in prison would settle the issue of

further risk.”         

But Carol Landerl in South Burlington, Vermont, defends the judge:

“You don't have your facts straight.  The corrections system in Vermont deemed the defendant low risk to offend again, thereby precluding him from receiving any treatment until he maxed out his sentence.  Sixty days is not his full sentence.  It's only the part that was not suspended.  Should he fail to comply with his conditions after 60 days, which includes treatment, he would serve his full sentence, consistent with Vermont sentencing guidelines.  I support Judge Cashman's attempts to get beyond retribution and seek constructive solutions.”

That's nice, Carol.

First of all, I got all the facts straight and accurate.  It seems you're just blinded by your devotion to this judge. 

On point one, the Department of Corrections finding out about him being low risk?  OK.  So, that means he would not have received counseling in prison.  Whether he should or shouldn't, I'm far more concerned about him being back on the streets.  The fact that part of his sentence was suspended is irrelevant.  It still means he only has to serve 60 days for now. 

And when you say you support Judge Cashman's attempt to get beyond retribution, you're saying you want him to conduct experiments from the bench.  He has got no right to do that.  The rest of us don't want it. 

Finally, Lewis Howell in San Antonio: “The system is more broken than we initially thought.  Listen to Dan Abrams, people.  He is 95.006 percent right anyway.”

Your e-mails, ABRAMSREPORT—one word -- @MSNBC.  We go through them at the end of the show.

That does it for us tonight.  Coming up next here on MSNBC, “FIRST

LOOK.” 

Have a good morning.  Thanks for watching.

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

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