updated 1/12/2006 9:11:03 AM ET 2006-01-12T14:11:03

Guest: Duncan Kilmartin, Jim Murdoch, John Yoo, Tom Goldstein, Joe Tacopina, William Fallon, Angi Hirsche, Cy Hirsche

DAN ABRAMS, HOST:  Coming up, the Vermont judge who sentenced a child molester to just 60 days behind bars fights back. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  The judge says he stands by his sentence even though the defendant confessed to sexually abusing a girl for four years from the time she was 6.  It‘s not easy to find, but we‘ve got a Vermont lawyer who agrees with the judge.

And Samuel Alito back on the hot seat, Democratic senators trying to get him to crack, asking again and again about abortion and about his membership in a conservative alumni group that didn‘t like the idea of women at Princeton. 

Plus, Scott Peterson speaks out from death row in support of Laci Peterson‘s mother?  That‘s right.  He applauds her as she goes public about how guilty he is. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi, everyone.  First up on the docket, just a short time ago state officials in Vermont decided that a man sentenced to just 60 days behind bars for repeatedly molesting a young girl can get treatment in prison.  Now why is that important?

It‘s an effort to get the judge to impose a longer sentence for the man who abused the girl for four years, starting when she was just 6 years old.  Under fire for what many are calling an extremely light sentence, Judge Edward Cashman is fighting back, justifying his action in court papers. 

Judge Cashman said the sentencing decision was difficult because the Corrections Department determined that the defendant, Mark Hulett, was a low risk sex offender and qualified for treatment only after his release from prison.  So now Vermont‘s Human Services secretary, Michael Smith, ordered that Hulett get treatment behind bars now, saying the classification system cannot be used as an excuse not to meet out punishment.  As a state official and as a father I‘ve got to look out for the well being of Vermonters.

Two state representatives are calling for Judge Cashman‘s resignation.  He‘s not backing down.  Quote—“I‘m aware that the intensity of some public criticism may shorten my judicial career.  To change my decision now, however, simply because of some negative sentiment would be wrong.  I owe it to the judiciary and to my own conscience to maintain a stand that I believe is the best possible option in a very difficult situation.”

Joining me now one of the state representatives calling for Judge Cashman‘s resignation, Duncan Kilmartin and criminal defense attorney Jim Murdoch who supports the judge‘s decision, doesn‘t think he should be forced to resign.  Gentlemen thanks very much for coming on the program.  Appreciate it.

All right.  First let me just ask you...

(CROSSTALK)

ABRAMS:  ... about this news.  Mr. Kilmartin, is this going to change everything? 

DUNCAN KILMARTIN ®, VERMONT STATE REPRESENTATIVE:  It certainly won‘t change the call, which we have made for Judge Cashman‘s resignation. 

ABRAMS:  All right.  Mr. Murdoch, this judge has gone beyond just imposing a low sentence.  He‘s basically talking about the fact that he has given up on punishment as a means of our criminal justice system, et cetera.  A lot of people, including me, think that he really spit in the face of the criminal justice system whether he was allowed to impose a sentence this low or not, that this was just the wrong thing to do. 

JIM MURDOCH, CRIMINAL DEFENSE ATTORNEY:  Well I think what he did was balance all of the interests, the interest of the victim, the interest of the public and basically said, given the choices that we have here in Vermont, the long term protection of the public, in other words, a sex offender undergoing continual treatment on the outside and under intense supervision for life balanced against retribution for retribution‘s sake, just putting him in jail with no treatment, that the choice was easy.  And I think if those are the two choices, then I think he made the right decision. 

ABRAMS:  You can make...

MURDOCH:  I may not agree with it but I think he made the right decision...

ABRAMS:  You can make that argument in any case where someone is not in prison for life.  You can say you know what, we should give this person a shorter sentence.  We should give them more treatment in an effort to get them back into society.  The bottom line is that that has been really rejected, I think, in most places in this country as an effective means of criminal justice. 

Instead, we‘ve—what we‘ve said is, you know, we simply can‘t take the chance.  We simply can‘t say, all right, we‘re going to try and treat all these people and hope that it works.  And instead, we‘re saying you know what?  We got a guaranteed way to make sure that they don‘t do it again and it‘s to impose longer sentences.

MURDOCH:  I don‘t think that‘s correct.  Only a couple of weeks ago, an untreated sex offender having served an extraordinarily long period of time—I think it was 15 years—was released from prison.  And what you forget is all sex offenders now are going to be released from jail at some point and...

ABRAMS:  Well no actually that‘s not true...

(CROSSTALK)

ABRAMS:  I mean as you know, there‘s an effort nationwide to impose longer sentences and in some cases, life sentences for these sex offenders, particularly...

(CROSSTALK)

ABRAMS:  ... repeat sex offenders to solve the problem. 

MURDOCH:  I‘m saying here in Vermont under our present system, sex offenders do get out of jail and they‘re untreated.  And the question is do you want untreated sex offenders who are out on the street after being warehoused for several years who have no incentive to be treated, who are hardened, who will probably more likely reoffend after a long period of dead time incarceration or do you want at least a chance that this person will be supervised and treated for life?  It is a tough case. 

(CROSSTALK)

MURDOCH:  You said at the beginning of your...

ABRAMS:  Yes, go ahead...

MURDOCH:  ... you couldn‘t find any—you could only find one lawyer to appear on your program.  And I will say that many of my compatriots you know find this decision very disturbing.  Whether I agree with it or not, I think based on the facts as I understand it, this was a correct decision...

ABRAMS:  Wait...

MURDOCH:  ... and I don‘t think he ought to be hung out to dry for it. 

ABRAMS:  Well, look I think he ought to be...

KILMARTIN:  Dan, Dan...

ABRAMS:  Go ahead Representative Kilmartin.

KILMARTIN:  Here‘s what I‘m concerned about.  Our Constitution requires reparation to the victim in the punishment.  This is now a 13 or 14-year-old girl whose molestation occurred during pre-puberty.  We know from the evidence that this girl has already been sentenced to a lifetime sentence of despair and dysfunction. 

She needs the assurance at this point that this person who had the trust of her family is not going to be able to molest her again, and other young women need the same assurance.  But our Constitution requires the judge to consider the protection of the victim, and that is really my motivation in calling for his resignation. 

ABRAMS:  And Representative Kilmartin...

(CROSSTALK)

ABRAMS:  ... wouldn‘t there have been a way for the judge to say, I‘m going to give you a longer sentence, and I‘m going to demand that when you get out, whenever that may be, that you get some treatment? 

KILMARTIN:  I‘ve read the judge‘s decision in his sua sponte reconsideration and it is incoherent to me.  And understand, I respect this judge; I respect his body of work.  But in this case, he has made an egregious, egregious error.  And he had more options than he claims. 

ABRAMS:  Yes.  See that‘s my...

(CROSSTALK)

ABRAMS:  ... concern, Jim Murdoch, is that this judge isn‘t being straight about what his options are.  He is suggesting look I only had two choices.  Either I give this...

(CROSSTALK)

ABRAMS:  ... horrible molester 60 days in prison and he gets treatment, or if I give him any other sentence, he will never get treatment.  It is just not that black and white.  He could have given him a longer sentence and demanded that he manage to get treatment on his own, whether it‘s from the state or not. 

MURDOCH:  I think what he said in part of his decision, which I don‘t have quite in front of me, is that anecdotally at least and as far as his experience being on the bench for 25 years, that those that serve long sentences without treatment, and remember, the Department of Corrections who was the one who recommends these things and who programs these people, said, and you probably and everyone probably disagrees with this, that he was a low risk offender.  Low risk offender means that he will not receive any treatment or programming on the inside.  And Judge Cashman said in his experience that those that serve long sentences...

ABRAMS:  Yes, he was concerned about...

(CROSSTALK)

ABRAMS:  I read his opinion. 

MURDOCH:  ... simply not motivated...

ABRAMS:  He was concerned...

(CROSSTALK)

ABRAMS:  ... that he wasn‘t going to get treatment fast enough.  He was saying oh, you know what? 

MURDOCH:  That‘s right.

ABRAMS:  If he serves eight years, he‘s going to be such a horrible, bad person; the treatment is not going to work then.  You know what?  You can make that argument...

(CROSSTALK)

ABRAMS:  ... about all of the worst of the worst in our society. 

MURDOCH:  That‘s what he says.  Now, whether you agree with it or not, that was his judgment.  That long-term warehouse sex offenders untreated when they get out are less treatable and for the protection of the public today, tomorrow, and next week, and next generation for this child and her family and her parents would be to have someone who is treated and if you start the treatment earlier, it is more effective. 

(CROSSTALK)

MURDOCH:  You may disagree...

(CROSSTALK)

ABRAMS:  Look, great.  Get him treatment or not.  It would be preferable to get him treatment, but that‘s a secondary concern.  See, you keep making that seem like the primary concern. 

(CROSSTALK)

ABRAMS:  If the primary concern is how much time is this guy going to serve behind bars?  That‘s the primary concern.  The secondary concern is, is he going to get treatment.  The judge flipped them and that‘s why everyone is so upset.

KILMARTIN:  Well I think what is even more difficult is that if you read his footnotes and read the statutes that he cites, the Corrections Department had a duty to provide treatment from 30 days after incarceration.  Now, he‘s building upon a bureaucratic deficiency that the...

UNIDENTIFIED MALE:  That‘s right.

KILMARTIN:  ... new administration is going to correct and that‘s what Smith is doing.  And I would expect this administration to do that.  But that doesn‘t begin to justify...

ABRAMS:  I agree.

KILMARTIN:  ... his egregious mistake. 

ABRAMS:  Here‘s the judge defending his sentence the day that he sentenced Hulett.

(BEGIN VIDEO CLIP)

HON. EDWARD CASHMAN, SENTENCED SEX OFFENDER TO 60 DAYS:  My heart goes out to this family and I would hate to be in the situation this family is, but there are other families out there and there‘s other people who could be victimized, and I‘m trying to take the long view. 

(END VIDEO CLIP)

ABRAMS:  Yes, Mr. Murdoch, it‘s time for this judge to step down, don‘t you think?

MURDOCH:  Absolutely not... 

ABRAMS:  He‘s given up on the system, hasn‘t he?  He‘s sort of thrown in the towel. 

MURDOCH:  He has not...

ABRAMS:  That‘s what it sounded to me. 

(CROSSTALK)

MURDOCH:  He‘s not given up on the system, but he says the system is only giving him so many choices.  And given the hard decisions the judges, as you know have to make every day, sometimes they make the right ones.  Sometimes they make the wrong ones.  I think he did the best he could.  I think he took the long view, as he said. 

It is not the best decision.  It is certainly an unpopular decision.  He rejected retribution, although he said it was tempting.  You know the—let‘s just put this guy away forever because we don‘t like it and we don‘t like the conduct.  That serves no useful purpose at the end of the day. 

ABRAMS:  All right and so that to me is otherwise known as throwing in the towel on the criminal justice system and saying, you know what, (INAUDIBLE) this jail stuff.  It just doesn‘t work so well.  So let‘s just send everyone out on these nice little trips to psychiatric institutions.  Let‘s try and help everybody.  In theory, in an ideal world, that sounds great.  In a practical world, it just doesn‘t work, but...

MURDOCH:  Well I disagree. 

ABRAMS:  All right.

MURDOCH:  I think punishment has to be combined with rehabilitation and deterrence. 

(CROSSTALK)

MURDOCH:  It is not one piece.  It is all the pieces...

ABRAMS:  Yes.  All right.  Well it doesn‘t seem to me like the pieces were put together in this case.  But Jim Murdoch, thanks for coming on the program.  You pointed it out before, that it‘s hard to get someone to defend this judge and you tried.  Duncan Kilmartin, thank you...

KILMARTIN:  In fairness to Jim, he and I are both criminal defense attorneys. 

ABRAMS:  All right. 

Coming up, what made Samuel Alito‘s wife appear to cry and leave today‘s confirmation hearings? 

And a former prisoner goes on trial for killing pedophile priest John Geoghan.  He says he did it to—quote—“save the children.”  Will jurors buy that as a defense to murder? 

Plus we showed you the tape of a man breaking into a check cashing business.  We‘ve got the woman he was robbing and her husband who overheard the robbery on the phone and called 911 on the program.

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

(COMMERCIAL BREAK)

ABRAMS:  Senate Democrats tried to turn up the heat on Supreme Court nominee Samuel Alito as his confirmation hearing went into a third day.  At one point, his wife left in tears.  We‘ll talk about that in a moment.  But the primary issues, whether Alito‘s judicial record shows he favors big institutions over the little guy, his 1980‘s membership in a controversial conservative group at Princeton and of course, abortion. 

(BEGIN VIDEO CLIP)

SEN. DICK DURBIN (D), ILLINOIS:  John Roberts said that Roe v. Wade is the settled law of the land.  Do you believe it is the settled law of the land? 

JUDGE SAMUEL ALITO, SUPREME COURT NOMINEE:  If settled means that it can‘t be reexamined, then that‘s one thing.  If settled means that it is a precedent that is entitled to respect a stare decisis and all of the factors that I‘ve mentioned come into play including the reaffirmation and all of that, then it is a precedent that is protected and entitled to respect under the doctrine of stare decisis in that way. 

UNIDENTIFIED MALE:  I‘m concerned that many people will leave this hearing with a question as to whether or not you could be the deciding vote that would eliminate the legality of abortion. 

SEN. CHARLES SCHUMER (D), NEW YORK:  You did say that in 1985, you believe that the Constitution did not protect the right to an abortion.  There would be no constitutional protection for a woman to terminate her pregnancy even if it—even if the termination was needed to preserve her future ability to have children, right?

ALITO:  Well, Senator, it was a general statement that didn‘t go into

it didn‘t...

SCHUMER:  But it had no exceptions.  You could...

ALITO:  It was one sentence. 

SEN. EDWARD KENNEDY (D), MASSACHUSETTS:  Did you read a letter from CAP mailed in 1984 which declared Princeton is no longer the university you knew it to be.  As evidence, among other reasons, it cited the fact that admission rates for African Americans and Hispanics were on the rise while those of alumni children were failing and Princeton‘s president at a time had urged that the then all-male eating clubs to admit females. 

ALITO:  Senator, I‘ve testified to everything that I can recall relating to this.  And I do not recall knowing any of these things about the organization.  And many of the things that you‘ve mentioned are things that I have always stood against. 

SEN. ORRIN HATCH ®, UTAH:  How do you react to this suggestion that the way you‘ve ruled in the past shows or even suggests that you‘re biased and that entire categories of litigants may not get a fair shake before you. 

ALITO:  Well, I reject that.  I believe very strongly in treating everybody who comes before me absolutely equal. 

UNIDENTIFIED MALE:  I couldn‘t get Judge Roberts to answer it because of the conflict that might occur afterwards, but I have the feeling that the vast majority of Americans don‘t think it is proper for the Supreme Court to use foreign law. 

ALITO:  I don‘t think that we should look to foreign law to interpret our own Constitution.  And I think the framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world. 

(END VIDEO CLIP)

ABRAMS:  Before we go to our guest, at the end of the session, or near the end of the session, Senator Lindsey Graham was telling Judge Alito that you know he should be proud of what he has done.  That he opposes the attacks against him.  And you can see his wife, Judge Alito‘s wife in the background there getting very upset.  And you‘ll see in a moment, she walks out. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  We have photos taken with people and sometimes you wish you didn‘t have your photo taken, but that doesn‘t mean that you‘re a bad person because of that association.  Judge Alito, I am sorry that you‘ve had to go through this.  I am sorry that your family had to sit here and listen to this.  Let‘s talk about another time, not so long ago, and another judge. 

(END VIDEO CLIP)

ABRAMS:  All right.  John Yoo is a professor of constitutional law at the University of California Berkeley, former clerk for Justice Clarence Thomas, a former deputy assistant attorney general with the current Bush administration.  Tom Goldstein was key attorney for former Vice President Al Gore when the 2000 election went before the U.S. Supreme Court. 

Very quickly, Professor Yoo, it didn‘t seem to me like this was so personal and so aggressive and so harsh that it would justify Senator Graham responding in a way that made it seem like that it just happened. 

JOHN YOO, BERKELEY LAW PROFESSOR:  I wouldn‘t say so either.  I can‘t explain, for example, why Mrs. Alito got upset and had to leave the room.  But I think compared to what happened to Judge Bork or to Justice Thomas and their confirmation hearings, this hearing is, I think, probably a little bit—much more closer to the way Chief Justice Roberts was treated. 

I think most of the questions I‘ve heard have been pretty fair.  I think the one thing I think was a little bit unfair is when I heard Senator Kennedy saying, trying to associate Judge Alito with what other people are writing and this magazine from this group from Princeton.  But aside from that, I think the hearings have been pretty much on the issues, on the merits, and very substantive.  And in that respect, I think it is a very good change from the way hearings used to be in the late ‘80‘s and early ‘90‘s. 

ABRAMS:  Tom Goldstein, it didn‘t seem to me like the Democrats really got anything to stick. 

TOM GOLDSTEIN, FORMER ATTORNEY FOR GORE 2000:  Yes, I don‘t think there‘s been a lot of traction here.  They are trying to point to issues that concern the public, for example, Roe v. Wade and abortion, trying to raise issues and failing I think about the integrity of the judge in order to ultimately justify voting against him.  Because I think at bottom they think he is too conservative and will do things for the law that they think are wrong.  But I don‘t think you see the kind of traction and energy and excitement that would be required to, for example, filibuster him...

(CROSSTALK)

ABRAMS:  So what they‘re trying to do really is they‘re trying to show that he is a liar.  I mean let‘s talk turkey here.  I mean listen to this.  This is Senator Kennedy talking about the fact that when Judge Alito was nominated to the Court of Appeals, and they talked to him about the fact he had some investments in a mutual fund with Vanguard, that he had told the committee I won‘t hear cases—at least initially that‘s what he agreed to in the writing—my initial cases, I won‘t hear any cases involving Vanguard.  Senator Kennedy went after him because he then did rule on a case involving Vanguard. 

(BEGIN VIDEO CLIP)

KENNEDY:  You responded under oath when you promised the committee that you would recuse yourself on Vanguard issues.  Now you say well, it was just for an initial time.  And I think 12 years is more than I really had in mind.  You just qualified your answer.  How long when you made that pledge and that promise to the committee, how long did you intend to keep it? 

ALITO:  Senator, as I said, I can‘t tell you 15 years later exactly what I thought when I read that question.  It refers to the initial period of service.  And looking at it now, it doesn‘t seem to me that 12 years later is the initial period of service. 

(END VIDEO CLIP)

ABRAMS:  I mean am I—I don‘t know.  Professor Yoo, I don‘t care about this issue.  I mean even Judge Alito says, you know what?  In retrospect, I probably would have handled it differently, but it‘s not like there‘s some gotcha moment where they caught him in a lie.  OK, so he said that he initially wasn‘t going to deal any case involving Vanguard.

Twelve years later, he hears a case involving Vanguard.  Maybe he should have done it, but it‘s not like he benefited economically from it anyway.

YOO:  Oh I agree.  If this is the best Democrats have to throw at Judge Alito, they‘re not going to stop him.  The more you learn about this issue, even less do you think it is of any importance.  You know Tom is the appellate advocate specialist, but this was an issue where Judge Alito didn‘t even actually hear a case and we didn‘t read briefs on oral argument.  This was an issue about whether this plaintiff could get the whole court of the Third Circuit to rehear...

ABRAMS:  Yes.

YOO:  ... another case that they had already heard, and all the judges voted on it.  And usually these are done where the secretary is supposed to check off whether this conflicts with any interests you have in stock and so on. 

(CROSSTALK)

YOO:  There was a mistake made and I think the judge actually being quite upright and not trying to blame...

ABRAMS:  Tom...

YOO:  ... it on his secretary or something like that...

ABRAMS:  Tom, do you really care about this incident? 

GOLDSTEIN:  No. 

ABRAMS:  OK.  Let‘s move on.  All right, this concerned alumni at Princeton issue.  All right, this is a very conservative group, more than just conservative, though controversial.  They were taking positions about how women shouldn‘t be at Princeton.  They were trying to limit the number of minorities, et cetera, that were accepted to the university. 

And Judge Alito was trying to distance himself saying look, yes, I mentioned on my job application that I had been a member of this group.  But I don‘t remember exactly how involved I was.  Senator Kennedy, and Arlene Specter, the chairman, got into quite a little tiff over whether they should subpoena the records of this organization in an effort to find out if Judge Alito is telling the truth when he says he wasn‘t really very involved.  Here‘s what happened.

(BEGIN VIDEO CLIP)

KENNEDY:  Well, Mr. Chairman, if I could have your attention, I think we ought to vote on issuing a subpoena to the custodial of those CAP records. 

SEN. ARLEN SPECTER ®, PENNSYLVANIA:  You and I see each other all the time and you‘ve never mentioned it to me.  And I do not ascribe a great deal of weight.  We actually did get a letter, but...

KENNEDY:  You did get a letter, are you saying? 

SPECTER:  Now, wait a minute.  You don‘t know what I got.  I‘m about to...

KENNEDY:  Of course I do, Senator, since I sent it.

SPECTER:  I take umbrage at your telling me what I received.  I don‘t mind your telling me what you mailed.  But there is a big difference between what‘s mailed and what‘s received and you know that. 

(END VIDEO CLIP)

ABRAMS:  Well it‘s good they got that straight.  But the bottom line is that the senator—Senator Specter said yes, it turns out you did send it to me.  I hadn‘t read it.  But bottom line, Tom Goldstein, here‘s what David Kirkpatrick had said after looking into this issue for “The New York Times” back in November about Judge Alito‘s connection with this group.

Those records and others at Princeton give no indication that Judge Alito was among the group‘s major donors.  He was not an active leader of the group.  Two of his classmates who were involved said they didn‘t remember his playing a role. 

Issue over or is it still do you think something that is crucial? 

GOLDSTEIN:  Well I think that the Democrats are going to try and make something of it as Senator Kennedy has, but Samuel Alito said look I know in 1985, I pointed to this as evidence of my conservatism, but I really don‘t even remember these people (INAUDIBLE).  I got to tell you, Sam Alito comes across as telling the truth.  Everybody you talk to say Sam Alito tells the truth and so ultimately it will be a non-issue.

ABRAMS:  You know the issue that I do think that they can get more traction on, John Yoo, is the abortion issue.  And that is that Judge Alito wrote that document back in 1985 where he talks about his personal beliefs.  That he personally—that he was so proud of fighting for causes, including opposing abortion, that he personally believes in.  Are you surprised that that hasn‘t stuck more? 

YOO:  No.  In fact, I think the strategy Democrats pursued by going after this Vanguard issue and against the issue with CAP is actually hurting them because it distracts...

ABRAMS:  I agree...

YOO:  ... from the abortion issue. 

ABRAMS:  I agree.

YOO:  And it would be fine and perfectly legitimate if they want to make a big issue of that.  Now I think the other interesting point is OK, suppose Alito really is secretly in his heart against abortion.  I have no idea how he voted against—on Roe against Wade, but suppose he was going to vote to overrule it.  It wouldn‘t make a difference because there are already now putting aside the O‘Connor seat, five votes on the Supreme Court, the four liberals plus Justice Kennedy (INAUDIBLE) and uphold Casey.

So that‘s kind of the—you know I think one problem the Democrats have they‘re trying to make a big issue of abortion, but they‘ve distracted themselves from it.  But maybe this is not the right seat to really fight about it.  Because I think it is hard with a straight face to claim that Roe v. Wade would be overruled because of Alito‘s vote.  His vote is not necessary.  You need to change yet another vote on the Supreme Court to really undermine Rove. 

ABRAMS:  Professor Yoo, real quick, a lot of reports saying that you were writing a secret memo that basically said the Bush administration could engage in this spying on Americans, that it was OK order the NSA to eavesdrop on certain Americans without a warrant.  What do you make of that?

YOO:  Well I can‘t really talk about that and—especially now that there‘s an investigation with the Justice Department going on about leaks about the program.  I really can‘t talk about it.  What I can say though, is that I think I do agree with what the administration has said defending the program.  I do think...

ABRAMS:  But are they using your Talking Points? 

YOO:  I haven‘t sent the administration any Talking Points in a long time. 

ABRAMS:  Come on.  How about—yes, but are they using your 2002 memo to justify everything they‘re doing? 

YOO:  I couldn‘t say whether I wrote a memo like that or not. 

ABRAMS:  You‘re not denying it, though?

YOO:  I can‘t say one way—even to deny it would be revealing information, I suppose.  But I can say I do agree with what the administration has said justifying the program.

ABRAMS:  I expected that was what you were going to say, but I wanted to know if you had actually written it.  All right, I didn‘t expect you to actually be able to answer it. 

YOO:  I knew you didn‘t, Dan, but you had to ask.

ABRAMS:  Yes I did.  Professor Yoo and Tom Goldstein, thanks a lot. 

Appreciate it.

GOLDSTEIN:  Thanks.

YOO:  Thank you.

ABRAMS:  Coming up, he is charged with killing one of the most notorious priests in the Catholic Church pedophile scandal.  Yes he says I did it to—quote—“save the children” (INAUDIBLE) defense.

And Scott Peterson supporting Laci‘s mom from death row after she wrote a book saying he‘s guilty as can be.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, he killed a pedophile priest saying he was saving the children.  What will jurors think about that?  The details after the headlines.

(NEWS BREAK)

ABRAMS:  We‘re back.  Remember John Geoghan, accused of molesting 150 boys, sentenced to nearly 10 years for fondling a 10-year-old while he was a priest in the Boston diocese?  He was killed in prison in 2003.  Well now the man accused of killing him is going to trial, saying he did it to—quote—“save the children”.  Joseph Druce admits he strangled Geoghan, but his lawyer says he shouldn‘t be criminally responsible for the killing. 

Byron Barnett with our Boston affiliate WHDH has the story. 

(BEGIN VIDEOTAPE)

BYRON BARNETT, WHDH REPORTER (voice-over):  In his opening statement, the prosecution said convicted killer Joseph Druce in August of 2003 slipped into John Geoghan‘s prison cell and beat and strangled him to death using socks tied together.

LAWRENCE MURPHY, PROSECUTOR:  He tied the socks around John Geoghan‘s neck, still talking to him fairly nicely.  Mr. Druce will—has said that he felt that Mr. Geoghan had died.  There was some blood.  Mr. Druce had gotten up on the bed at one point and jumped on John Geoghan‘s chest. 

BARNETT:  The prosecution says Druce, who is already doing life for another murder, planned to kill Geoghan because of Geoghan‘s own crime.  The 68-year-old defrocked priest was in prison for molesting a 10-year-old boy. 

MURPHY:  He is basically saying, I killed him because he was a pedophile priest.  I don‘t want him getting anybody else. 

BARNETT:  But in his opening statement, the defense attorney said the question isn‘t what happened but why.  He says Druce is not criminally responsible. 

JOHN LACHANCE, JOSEPH DRUCE‘S ATTORNEY:  Joseph Druce was suffering from a mental illness.  A mental illness that had developed and had progressed over almost his entire life.

BARNETT:  The defense says Druce claimed he did it for the kids, and that the whole world wanted it.  But the defense attorney also accused the first witness, Corrections Officer David Lonergan, of allowing the murder to happen. 

UNIDENTIFIED MALE:  Didn‘t you in fact look the other way when he slipped into that cell? 

UNIDENTIFIED MALE:  Not at all.  Not at all. 

(END VIDEOTAPE)

ABRAMS:  That was WHDH‘s Byron Barnett reporting.  Joining me now Bill Fallon, former Massachusetts sex crimes prosecutor and criminal defense attorney Joe Tacopina.  Joe, is this going to work? 

JOE TACOPINA, CRIMINAL DEFENSE ATTORNEY:  You know, if it is ever going to work, Dan, listen.  I mean these defenses are tough in general.  Insanity defenses, mental defect defenses work about two percent of the time statistics show.  If it is ever going to work, it should probably work in this case for a whole host of reasons. 

One, you have a guy who really has a mental defect.  Here‘s someone who as a child was sexually abused in a residential school for troubled children.  He suffers from a dissosiative order, which is really a serious mental illness.  And then when you couple it with what he did and why he did it...

ABRAMS:  That‘s the key.

TACOPINA:  ... he heard the priest on the phone talking to his sister, which is a fact that is not in dispute by the way—even the prosecution acknowledges this—that he heard the priest on the phone talking about how when he gets out, he‘s going to work with troubled children again.  And you know, here‘s a guy who is fragile, who clearly has some mental issues, whether or not it‘s going to rise to that level.  But you know, here is someone who is doing life for another murder. 

ABRAMS:  Yes.

TACOPINA:  He is facing life.  You know and there is no one in that courtroom that is really shedding a tear for Geoghan.  There‘s just not a soul.  Not even the prosecution, so I think it may work in this case. 

ABRAMS:  See that‘s I think their biggest concern...

TACOPINA:  Absolutely.  Absolutely.

ABRAMS:  ... Bill Fallon, is the idea that jurors are going to say well, yes, I guess he seems kind of insane.  In a way, they wouldn‘t look at it otherwise but say, this guy Geoghan deserved to die. 

WILLIAM FALLON, FORMER ESSEX COUNTY MA PROSECUTOR:  Dan, I think that‘s the issue.  John Geoghan was the poster child, the poster man for the priest pedophile thing.  And I think that that is the whole problem.  Yes, he was only convicted of indecent assault and battery.  But in this trial, given the way it‘s coming out with insanity, they‘re going to get to hear he was accused of molesting 150 kids. 

The only reason he was not prosecuted for them was because it was past the statute of limitations.  As you know, I was one of the people who prosecuted the priests in Massachusetts, in fact, got the first rape conviction.  So everybody thinks Geoghan was convicted of rape.  I will say this, remember, this guy who used to be called Darren Smilage (ph) was convicted of murdering a man before and there was a homosexual advance alleged during that time. 

And guess what?  I don‘t believe he came up with, I was an abused as a child thing.  This is going to be a very interesting legal issue.  Whether they can go back those number of years to say, have you just made up this I was abused as a child?  Before they went on I have a learning disability and that‘s why I murdered the other guy. 

ABRAMS:  Bill, does his life sentence come into evidence?  I mean do the jurors find out that basically, don‘t worry.  Even if you find him not guilty, he is not going anywhere. 

FALLON:  Well I think they‘re going to find that out.  Are they supposed to find that out?  No.  But remember, the prosecution might put it in as this guy thinks he has a freebie.  And I will tell you while Joe is feeling bad for this guy, those of us who knew him when he was prosecuted in our county, people compared him to Charles Manson. 

They thought he had evil in his eyes, evil in his heart.  And I think he wanted to be a star just like Charles Manson in this case and I hope the prosecution tries it that way. 

ABRAMS:  Go ahead, Joe.

TACOPINA:  Bill perhaps, but you have two factors here that I think are going to overshadow any other evidentiary issue in this courtroom whether or not the case is proven beyond a reasonable doubt.  You have this jury is going to find out that this man is spending life in prison. 

(CROSSTALK)

TACOPINA:  And they know this is not a death penalty case.  So there‘s no greater punishment he could receive.  And you know what?  You‘re talking about juries sending a message.  Boy, if there‘s ever a message to be sent to pedophile priests, priests who abuse the most important position of trust of them all and go and do that stuff, you know this jury could say loud and clear, this guy deserved to die.  What he did to those boys, and you‘re right.  People do think he was convicted of rape. 

He wasn‘t.  But there are 150 boys allegedly that he has molested. 

The jury knows this guy Druce is never getting back out on the street. 

This is a perfect message case without...

(CROSSTALK)

FALLON:  Joe, it is a perfect message case.  The only thing—that‘s why I think...

ABRAMS:  Quickly.

FALLON:  ... the prosecution has to go quickly and say, you know what? 

He doesn‘t—if you let him kill this guy...

(CROSSTALK)

FALLON:  ... if you let these guys, they run the asylum and they can‘t.

ABRAMS:  Yes.  All right.  Bill Fallon and Joe Tacopina, thanks a lot. 

Appreciate it.

UNIDENTIFIED MALE:  (INAUDIBLE)

ABRAMS:  Coming up, a robbery caught on tape.  A husband calls in and hears his wife being robbed.  The couple joins us next.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a robbery caught on tape, the man who called in during the scuffle and heard his wife being robbed.  The couple join us live.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  Yesterday we brought you the story of a robbery caught on tape and on the telephone.  The victim‘s husband just happened to call in the middle of the attack and heard everything over the phone.  We‘ll talk to the couple in a moment. 

Now remember, this is the one where the robber vaults over the counter at a check cashing store and attacks Angi Hirsche, the owner of the store, holds her down, then makes his way over to the safe, takes some money, doesn‘t leave, tries to tie her up using duct tape.  She struggles, pleads with the man to leave her alone telling him she has a family and children. 

And then right in the middle of all this, Angi‘s husband, Cy, happens to call.  The assailant tries to rip the phone out of the wall, but ends up knocking it off the hook, allowing Cy to hear everything, including Angie‘s pleas that the robber take the money and let her go.  Cy immediately called 911. 

Joining me now are Angi and Cy Hirsche who are now safe and sound and on vacation in California.  Thanks a lot to both of you for taking the time.  We appreciate it.

UNIDENTIFIED FEMALE:  Thank you. 

UNIDENTIFIED MALE:  Thank you.  We‘re happy to be here. 

ABRAMS:  Angi, let me start with you.  Tell me the first thing that you remember.  I mean does this guy seem suspicious or just out of nowhere he just jumps over the partition? 

ANGI HIRSCHE, ROBBED AT CHECK CASHING STORE:  I had absolutely no time to see him walk in the door.  I was bending over to put my purse under the counter.  Next thing I know, I‘m being attacked.  And I‘m—he is on top of me with a gun in my face. 

My initial reaction was that I thought maybe this was a joke my husband had one of his friends play on me.  As soon as the gun was there, it took me a few seconds to realize that this was no laughing matter. 

ABRAMS:  And did you recognize him?  Because I understand that he was a—someone who had done some business with your operation. 

A. HIRSCHE:  Yes.  He was in our store about three days earlier to get a loan.  That‘s what we do, is we give out loans.  And he was very nice and cordial.  And he was a very tall gentleman, so he was very easy to remember.  And we spent about 20 minute together three days earlier. 

ABRAMS:  Wow.  So right away...

A. HIRSCHE:  Yes.

ABRAMS:  ... you knew that that was him. 

A. HIRSCHE:  I did.  It took me a minute to get over the shock and the, you know to gather all your thoughts and remain calm.  But as—in the back of my mind, I‘m thinking the whole time, I know this guy.  That‘s the guy that was here just a few days ago.  I‘m positive that‘s him.

(CROSSTALK)

CY HIRSCHE, HEARD WIFE BEING ROBBED THROUGH PHONE:  And it was actually funny...

ABRAMS:  Sorry.  Go ahead Cy.

C. HIRSCHE:  Sorry.  But if you watch the tape, you can see that‘s probably the main reason he was so physical with her.  Instead of just asking for money, he‘s trying very hard to not let her see his face.  And you know that‘s the thing that makes me the most mad, is why does he have to be so darn physical, a six-six, 250-pound guy on my you know small, petite, beautiful wife?  And it‘s just the hardest thing to watch and it‘s just horrible.  I‘m so proud of how Angie did it.  And but if you do watch it, every time she tries to look at him, he tries to turn away.

ABRAMS:  Cy, let me play the 911 call where you—when you are calling the authorities and then I want to ask you about that.

C. HIRSCHE:  OK.

(BEGIN AUDIOTAPE)

911 DISPATCHER:   911 Emergency.

HUSBAND:  I need to report an emergency at 590 North State Street in Orem.

911 DISPATCHER:   OK.  Are you calling from the business?

HUSBAND:  No, I‘m not.  I just called my wife there and she knocked the phone off the hook while the guys were robbing her.

(END AUDIOTAPE)

ABRAMS:  So Cy, you were convinced, right, there was no doubt in your mind that this was a robbery. 

C. HIRSCHE:  Yes.  I mean, we‘ve been married for seven years and you can tell my wife was really scared.  And right when I heard her voice saying, you know I won‘t move a muscle.  Please don‘t hurt me.  I knew that something bad was happening.  I didn‘t know that he had ripped the phone out. 

I, you know I knew that she was being robbed.  And so that‘s why I immediately called and I tried to yell at them—I thought it might be on speaker phone—to get out, that I‘m on my way and I‘ll there be in a minute and—to help.  I don‘t know if they heard that or not.  I know Angi didn‘t, but I‘m not sure if the person, Junior (ph), heard it or not. 

ABRAMS:  Angi, you...

C. HIRSCHE:  It was just terrifying. 

ABRAMS:  Angi, you had no idea that Cy could hear this, right? 

A. HIRSCHE:  No idea.  All I was doing was trying to survive.  I was just trying to say, anything and everything I could to get him to leave me alone and get out of my store.

ABRAMS:  What were you saying? 

A. HIRSCHE:  I tried to appeal to his emotions.  I knew everybody had a mom out there and most people love their moms.  And so I kept saying, I‘m a mom.  I have a 1-year-old and a 6-year-old and they need me.  And you can‘t hurt me.  I have children.  I‘m a mom.  I need them.  Please don‘t hurt me.  And I think it unraveled him a bit.  I really think it touched a chord somewhere.

ABRAMS:  Did he say anything back?

A. HIRSCHE:  He never said much.  He—other than give me money.  And asking where the bathroom was, to drag me down the hall to the bathroom.  Other than that he didn‘t say a lot.  He tried to keep his voice to a minimum thinking that perhaps I might be able to recognize it. 

ABRAMS:  Cy, even knowing that your lovely wife is safe and sound now, watching that tape must still be hard for you. 

C. HIRSCHE:  It really is.  It is something that I cringe every time I see it.  When he comes over the counter so quickly and her head hits the counter so hard.  It is just horrible.  Every time it makes me sad and it is just something I wish I didn‘t have to see again.  But unfortunately, I get to see it a lot these days, but...

ABRAMS:  Well the guy is behind bars. 

C. HIRSCHE:  ... we‘re sure happy.  He is and I think he‘ll be there for a long time.  His wife—he actually confessed right away.  Angi knew him and had to—you know we basically caught him before he even got home from the robbery.  Because of you know Angi‘s quick work and her smarts and you know I hope so.  I hope he is behind bars for a long time.  I really do. 

ABRAMS:  You guys seem like such a...

C. HIRSCHE:  It‘s wrong what he did.

ABRAMS:  You seem like such a lovely couple.  I got to tell you...

(LAUGHTER)

C. HIRSCHE:  Thank you.

A. HIRSCHE:  Thank you.

(LAUGHTER)

ABRAMS:  Thank you so much.

A. HIRSCHE:  We try. 

ABRAMS:  Thanks a lot.  I‘m so glad to see that you‘re doing well. 

Angi, you look great.  Cy, thanks a lot.

A. HIRSCHE:  Well I‘m in the happiest place on earth, so it‘s hard not to be great right now.

ABRAMS:  Enjoy your vacation.  Thanks a lot for coming on the program. 

A. HIRSCHE:  Thank you so much.

C. HIRSCHE:  Thank you.

ABRAMS:  Coming up, you‘d think we had heard the last of Scott Peterson.  Not yet.  Peterson now praising his mother-in-law, Laci‘s mom for her new book.  Talk about nerve!  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.  Today we‘re working in Louisiana helping them locate Raymond Jones.  He is 47, six-four, 185, was convicted of molesting a juvenile and fondling a child in 2001, has not registered his address with the state.  If you‘ve got any information on his whereabouts, please contact the Louisiana State Police Sex Offender and Child Predator Registry, 1-800-858-0551. 

Be right back.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—even from his jail cell on death row at San Quentin, Scott Peterson is managing to get people riled up with his arrogance and gumption.  He has released a statement on a Web page maintained for him by an anti-death penalty group.  The statement addresses Laci‘s mom, Sharon Rocha, who just released a book about Laci‘s murder entitled “For Laci”.  In it she also details how and when she became convinced that Scott Peterson murdered Laci and how Peterson‘s behavior during the trial just made things that much worse. 

The statement was released in late December.  Peterson says this is titled “Perhaps a Commendation” because if a rumor I heard is correct, my mother-in-law, Laci‘s mother, deserves applause.  The rumor is that all the profits from her forthcoming book will be given to an educational charity, perhaps the fund at Downey High.  I hope that this rumor is true.  Some people have done things to profit off of my wife and son having been taken from me and murdered.  The profits from this possibly going to charity would counter this disgusting trend.  If the rumor is true, what a wonderful act.

It‘s true.  Sharon says she‘ll be donating the money to the Laci and Connor Fund.  But Scott Peterson clearly just wants to rub salt in the wound, doesn‘t he?  Commendations are nice from people who want to hear them.  He knows how she‘s going to feel about this.  The Rocha family has no interest in his flattery.  Imagine a convicted rapist announcing that he commends his victim for speaking out against rapists or for donating money to rape crisis centers. 

Let him maintain his innocence.  But offering up commentary on

Sharon‘s actions?  His statement also tells the public that he and Laci

quite enjoyed supporting education.  And that together they were—quote -

“lucky enough to do some things for our college alma mater”.  Please! 

Just further confirmation that we need not be surprised by Scott Peterson‘s behavior. 

Coming up, good news to report tonight.  Despite what I may have thought, many of you are watching the Samuel Alito hearing coverage.  Your e-mails up next.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night in my “Closing Argument”, I said look it can get a little boring watching the confirmation hearings of Samuel Alito. 

Wally Wald, “I only wish we could hear more of the nominee and less of the senators who need some direction on how to ask the questions.”

From Missouri Laurie Gannan, “The people are listening.  We care.  Why would you even dream that we aren‘t listening?” 

Well, because there are a lot of Adam Belskys out there. “God bless you, Dan.  You‘ve uncovered the real problem with the confirmation hearings of Judge Alito.  It‘s way too boring.”   

I don‘t know.  I thought today was kind of interesting.  Your e-mails abramsreport—one word -- @msnbc.com.  We go through them at the end of the show. 

That does it for us tonight.  Don‘t forget, tomorrow we will have live coverage of the hearings of Samuel Alito.  I‘ll try and keep them interesting.  I‘ll be hosting starting at 9:00 a.m. 

Up next, “HARDBALL” with Chris Matthews.  See you then.

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