updated 2/2/2006 9:04:05 AM ET 2006-02-02T14:04:05

Guests: Steve Emerson, Rick Francona, Roy Hallums, Dave Wedge, Dan Hausle, Jonna Spilbor, William Fallon, Dr. Jonathan Arden, Robert Hirschhorn, Bethany McLean

DAN ABRAMS, HOST: Coming up, Samuel Alito sworn in as America‘s newest Supreme Court justice.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  And in a disturbing video kidnapped American journalist Jill Carroll seems to be calling for more women prisoners in Iraq to be released. The U.S. has already released some, will they, should they release more?

And Neil Entwistle spotted leaving his British home for the first time since his wife and baby daughter were found murdered in Massachusetts. Is he coming back for the funeral? And if not, why not?

Plus, prosecutors call Enron a ticking time bomb as the trial of Enron honchos Ken Lay and Jeff Skilling gets started. But Lay‘s attorney says Lay didn‘t steal a nickel and says he‘ll take the stand in his own defense.

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS: Hi everyone. First up on the docket, almost seven months after Justice Sandra Day O‘Connor first announced her resignation from the Supreme Court she was finally replaced today. The U.S. Senate confirmed Judge Samuel Alito to the court with a 58 to 42 vote, believed to be the most partisan confirmation vote in history. But Justice Alito will waste no time stepping into his new role. He was sworn in immediately after the vote and will join the other eight justices on the Capitol tonight for the president‘s sixth State of the Union address.

Joining us now, Norah O‘Donnell, MSNBC senior Washington correspondent. So Norah was there anything surprising about the partisan vote?

NORAH O‘DONNELL, MSNBC SENIOR WASHINGTON CORRESPONDENT: Not necessarily surprising. And that‘s right, Judge Sam Alito is ready to get to work. He was sworn in today as the 110th justice on the Supreme Court after what was one of the most partisan victories in modern history. He was sworn in by Chief Justice John Roberts in a private ceremony at the Supreme Court.

Tomorrow he is going to the White House to be sworn in with the president. And the swearing in came just hours after this vote you mentioned, 58 to 42 in the United States Senate to confirm him. Only four Democrats voting to confirm him and voting yes. Well today Democrats took to the floor just one last time to offer and take one last shot if you will. Democratic leader Harry Reid referencing the 1985 memo that Sam Alito wrote in which he called for Roe v. Wade to be overruled.

(BEGIN VIDEO CLIP)

SEN. HARRY REID (D), NEVADA: A 1985 document amounted to Judge Alito‘s pledge of allegiance to a conservative, radical, Republican ideology.

(END VIDEO CLIP)

O‘DONNELL: That‘s part of the reason this was a very partisan vote. Of course, some Democratic efforts to filibuster this nomination failed.  However, again, this is the most partisan vote in modern history for the Supreme Court. Listen Dan. There were four Democrats who voted yes for Sam Alito. Even when it came to the controversial nomination of Clarence Thomas, he got 11 votes from Democrats.

Dan, I must also say it‘s a big night here on Capitol Hill because of course the president is going to be delivering the State of the Union address tonight. This is his fifth State of the Union address and it comes off one of the worst years of his presidency. So clearly the president is going to use this occasion, sort of seize the initiative, if you will, before tens of millions of Americans to try and turn around his troubled presidency. Now advisors are saying look don‘t expect a bounce in the polls because we‘ve looked back over time and traditionally presidents don‘t get a bounce in the polls.

But nevertheless you‘re going to hear a visionary speech from the president today. They say not really a laundry list. However, we are going to hear him talk about health care, to deal with the skyrocketing cost.  We‘re going to—he‘s going to talk about education, improving math and science scores in high school, energy to deal with those high costs of oil.  And of course, Dan, he will also we are told offer a vigorous defense of the controversial NSA spying program—Dan.

ABRAMS: Norah O‘Donnell, as always, thanks a lot. Appreciate it.

O‘DONNELL: My pleasure.

ABRAMS: Switching gears—U.S. military spokesmen in Iraq say—quote—“we will not make concessions to terrorist demands.” This after the Arabic Al-Jazeera network played this tape Monday of kidnapped American journalist Jill Carroll, wearing an Islamic headscarf, apparently weeping and pleading for her life. I say apparently because Al-Jazeera hasn‘t released the tape. All you can hear Carroll say are the words hope for the families. But according to Al-Jazeera—quote—“The American journalist kidnapped in Iraq urged her family and Americans around the world to demand the U.S. military forces and the Iraqi interior ministry release all Iraqi women prisoners. She said this would help in her release.”

Now Carroll was kidnapped January 7. The kidnappers are calling themselves the Revenge Brigade, threatened to kill her within 72 hours unless all the Iraqi women prisoners in custody were released. The military says it was holding nine Iraqi women. Five were set free but just last week. Now officially at least that was part of a much larger planned prisoner release. But the question has that encouraged these terrorists?

Should the other female Iraqi prisoners be freed? If that—will that really save Jill Carroll and is it a good idea? Lieutenant Colonel Rick Francona is an MSNBC military analyst and he joins us. Steve Emerson is a terrorism expert. And Roy Hallums was an American contractor in Baghdad when he was kidnapped in November 2004, held for ransom for 10 months. He was forced to make a video before he was eventually freed by U.S. forces.  Steve Emerson, what do you think is going to happen?

STEVE EMERSON, MSNBC TERRORISM ANALYST: I don‘t know, Dan. You know the wink and a nod of the release last week you know it‘s hard to know—we‘re reading the tealeaves—whether in fact the release of the five women, detainees last week was in fact a concession or whether it was just a serendipitous occurrence. I hope that we do follow through with our policy of no concessions. Because the more you deliver to the terrorists, the more they are going to ask for. If in fact we deliver more, they‘re going to ask for more. They would have executed her before if they were really serious. I think that we really do need to hold to a no negotiation policy, Dan.

ABRAMS: And yet, Rick, you think that they probably will end up releasing the rest of the women?

LT. COL. RICK FRANCONA, RET., MSNBC MILITARY ANALYST: I think so it would be part of this plan to release—at least that‘s what they claim.  But you know as Steve says, the more you give, the more they are going to want. I think the group that has her believe that the Americans backed down. That those five women were released as part of a concession, although it probably wasn‘t. The perception is what counts here. I think they think they got one.

ABRAMS: But see, Steve, my trouble is that I don‘t even believe these demands a lot of the time. I think that they make this stuff up in an effort to get attention for themselves in an effort to pursue a popular cause, et cetera.

EMERSON: What do you mean they don‘t—they make up the stuff but in the end if somehow we succumb to the demands, then the demands become rational and they become palpable and they become executed. And in fact—if in fact the additional six Iraqi women are released or three additional ones are released, then they will have met their demands. And who knows if they issue another set of demands. So to a certain extent even if the demands are sort of contrived they become rational by virtue of the fact that we act upon them.

ABRAMS: Yes. All right. Roy Hallums, let me ask you about the issue, an issue you and I have talked about before, and that is the making of the tape. We see this heartbreaking tape of Jill Carroll there, crying, seemingly pleading, et cetera. Tell me what happened to you right before you made the tape.

ROY HALLUMS, HELD HOSTAGE IN IRAQ: Well in my case, they had told me they wanted me to be very upset and emotional. And they had to take four takes because they didn‘t like the way the videos were going. So I‘m sure with her it‘s the same way. I mean she is certainly upset and the tapes concerns you, but they want you to look distressed as much as possible. And they will do several takes until they are happy with the way you look on the tape, so...

ABRAMS: Did they beat you before you made the tape?

HALLUMS: Yes. They said they wanted—they were going to help me look disturbed and so they were going to beat me before the tape...

ABRAMS: Rick, what do you make of the fact that she is wearing the Islamic headscarf?

FRANCONA: I don‘t put too much stock in that. She was wearing it when she was taken. She often appeared that way and it would be common for them to dress her up that way, so I don‘t put a whole lot of stock in that.

ABRAMS: Here‘s—Jill Carroll was actually on MSNBC in February of 2005. And one of the things it turns out that she had been talking about at that time was the question of how many of these Islamic groups feel about women in the work place. Here is what she said.

(BEGIN VIDEO CLIP)

JILL CARROLL, KIDNAPPED REPORTER: One thing a lot of the Islamic groups feel at the moment is that certain jobs are appropriate for women and certain jobs are appropriate for men. Many will tell you that they feel women should be doctors whereas men should be engineers. However, they always do - make—stress that they want women to have a choice to either work outside the home or to not work outside the home. What they‘ll translate to down the road six months, a year from now and (INAUDIBLE) will be we‘ll have to see how that pans out.

(END VIDEO CLIP)

ABRAMS: It‘s heartbreaking to see that comparison between how she looks in her normal state there on MSNBC and how she is being forced to look now on this videotape. But Roy, you‘re saying don‘t necessarily look at this tape and don‘t take it at face value, right?

HALLUMS: That‘s right. I mean it‘s a serious situation. I am just saying that they purposely want to have the hostage look as upset as possible during the video.

ABRAMS: And Steve, it is a very good sign—and Rick and I talked about this last night—it is a very good sign that the deadline of two weeks ago, three weeks ago came and passed and now it‘s clear that she‘s still alive.

EMERSON: Well they‘re—look Dan, they are getting far too much money for their value here. They are getting airtime, number one. And number two they are apparently getting some of their demands met. At least as Rick pointed out, even if it was just a (INAUDIBLE) events. In their own minds it looks like their demands have been met, at least partially. And number three the fact is in the future they lose their chips if they execute her.  So I think you‘re right that these are arbitrary demands and somehow they become sort of rational only because we‘ve made them rational.

ABRAMS: (INAUDIBLE) and Steve, do you—and do you expect that they will release the rest of the women?

EMERSON: It‘s my belief that there‘s going to be simultaneous release in the future. Yes, it looks like we‘re going to be putting pressure on the Iraqis to release the other women detainees. I hope I‘m wrong here, Dan. I really hope that we do not put the pressure on the Iraqis. It‘s a terrible message because how can we expect them to withstand the pressure of future hostage takers if we don‘t...

(CROSSTALK)

EMERSON: ... withstand the pressure ourselves?

ABRAMS: Yes. No, I completely agree with you. I was sort of stunned when Rick told me last night that he thought that they would all end up being released for the very same reason. We shall see. Rick Francona, Steve Emerson, and Roy Hallums, thanks a lot for coming on the program.  Appreciate it.

HALLUMS:  Thank you.

FRANCONA:  Sure.

ABRAMS: Coming up, Neil Entwistle spotted leaving his parents‘ home in England for the first time since his wife and daughter were murdered in Massachusetts. The funeral is tomorrow. Is he on his way back to the U.S.  for it? If not, why not?

Lay‘s attorney tells the jury Lay didn‘t steal a nickel from Enron and that he‘ll take the stand in his own defense. We talk to one of the people who helped pick that jury.

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

(COMMERCIAL BREAK)

ABRAMS: We‘re back. The husband and father of murder victims Rachel and Lillian Entwistle has emerged from his parents‘ home in England. Neil Entwistle ignored reporters‘ questions today as he got into the car with his parents. But his actions are prompting questions about whether he‘s coming to the U.S. for his wife and daughter‘s funeral scheduled for tomorrow.

Just a short time ago the D.A.‘s office released a statement in Massachusetts saying—quote—“police have been in contact with both Scotland Yard and local police who have provided investigators with updates as to Neil Entwistle‘s whereabouts in the United Kingdom.” Investigators in Massachusetts do not believe Mr. Entwistle will attend local services for his wife and daughter.

“My Take”—this guy better be heading home. Put legalities aside, he‘s the husband and father of murder victims. It sure doesn‘t look good for him if he doesn‘t come home, answer questions, help investigators figure out who killed his wife and daughter and go to the funeral. The notion that a lawyer would be able to convince an innocent grieving father not go to the funerals and not help is absurd. He should be knocking the police door down.

Joining me now Dan Hausle, who‘s a reporter with our Boston affiliate WHDH, who‘s near the Entwistle home in Nottingham, England and Dave Wedge, reporter with the “Boston Herald” joins us as well. All right. First Dave, let me start with you. In terms of what we know today that we didn‘t know yesterday. There were questions yesterday about whether he had even met with the investigators to be questioned. Do we know anything more about that?

DAVE WEDGE, “BOSTON HERALD” REPORTER: It‘s clear now that he did not meet with investigators. The original reports were that he had gone to the English embassy and met with the investigators, but authorities now are saying that he never did do that.

ABRAMS: All right and Dan, do we know anything more about whether he is coming home? Do we know anything more about where he is in England right now?

DAN HAUSLE, “WHDH-TV REPORTER (via phone): We don‘t know anything solid, but you have a district attorney‘s message that they don‘t believe he is coming home. You have the fact that he left with a small suitcase but casually dressed. It didn‘t seem to indicate he might be traveling a long visit. Also, the flights at this time are very difficult connections from both London and airports closer to him. It seems if he was going to go home, he would likely be taking an earlier flight. It seems more likely that he might be trying to go to somewhere locally where there is not as much attention.

ABRAMS: You know, Dan, the reports I‘m hearing coming from the British authorities and even from some British papers seem to be suggesting well you know he‘s not a really a person of interest as the D.A.‘s office is suggesting. He‘s not someone they are really looking at as even a possible suspect. Are they still giving that impression over there?

HAUSLE: After the weekend they kind of (INAUDIBLE) when the word came that he probably hadn‘t gone to talk with investigators. There were a couple of Sunday articles heavily pushing the vendetta idea that quoting sources close to investigators saying that they totally do not believe that he‘s the guy. However, the next day they started pointing out that he‘s rebuffing investigators and since then there has not been a (INAUDIBLE) push on the idea that some shadowy assassins of the Internet had come after his wife and child.

ABRAMS: And Dave, I mean the statement today from the D.A.‘s office in Middlesex is saying we‘re being updated on his whereabouts, right? That‘s all they‘re saying?

WEDGE: Yes, it‘s basically saying that they‘re keeping an eye on this guy, where he is going, and as you said, they don‘t believe he is coming here for the services. But it‘s clear that he is still a person of interest. And this is kind of unusual for the district attorney to put out a statement saying that they are monitoring someone‘s whereabouts.

ABRAMS: And he didn‘t report his wife missing, right? I mean let me go through the timeline, Dave, and then I want you to comment on that.  Thursday, January 19 is the last time she‘s heard from that we know of.  Friday, January 20 Neil Entwistle buys a plane ticket to London. Saturday, January 21, 8:15 a.m. he‘s on a passenger list for British Airways flight from Boston to London, 8:27 p.m. police conduct a well-being check at the Entwistle home after getting some calls from friends. They find nothing suspicious. The next day, 5:12, the family files a missing persons report after they went inside the home and didn‘t find her, 6:30 p.m. police find the bodies under bedding in the master bedroom. I mean again, one of the factors I think to consider here, Dave, is that he never mentioned that she was missing in any way and that he hadn‘t heard from her, correct?

WEDGE: Well we don‘t know that. I mean for all we know he could have been the one that had made that call saying he was concerned. Maybe the friends called him in England and said you know they are not around. Where are they? And that‘s what raised the concern. The time of death is going to be crucial in this case. They still haven‘t said exactly when they died.  They are saying sometime after Friday night. So realistically they could have been killed after he was gone...

(CROSSTALK)

WEDGE: ... or sometime around the time he left.

ABRAMS: Here is what Martha Coakley said about that very issue on this program.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: As to what the timing was we know she was last alive Thursday night and we know that by Sunday she was dead.

(END VIDEO CLIP)

ABRAMS: Let‘s bring in our panel. Dan and Dave, if you could stick around for a minute. Joining us now Dr. Jonathan Arden, forensic pathologist, Bill Fallon, former Massachusetts prosecutor, Jonna Spilbor, criminal defense attorney. Thanks to everyone. Appreciate it.

All right, so Jonna, you‘ve told us before that as his attorney you might tell him not to say anything. Would you also tell him not to go to his wife and daughter‘s funeral?

JONNA SPILBOR, CRIMINAL DEFENSE ATTORNEY: If I thought that he would not make it off the tarmac without getting thrown in handcuffs and thrown in jail then I might advise him not to go.

ABRAMS: Wait. What‘s the difference, though? I mean if they are going to throw him into handcuffs, right...

SPILBOR: (INAUDIBLE)

ABRAMS: ... I mean you are not suggesting they wouldn‘t be able to successful extradite him from England?

SPILBOR: Well they haven‘t made any moves toward that and so far...

ABRAMS: But they...

(CROSSTALK)

ABRAMS: They haven‘t filed an arrest warrant either.

SPILBOR: Yes, but they will. The second that guy steps on a plane heading over here they will get an arrest warrant. Guarantee. I‘ll put my money on that.

ABRAMS: That may be—but Bill, I don‘t think whether he is England or whether he‘s here is going to determine whether an arrest warrant is filed, is it?

WILLIAM FALLON, FORMER ESSEX COUNTY, MA PROSECUTOR: Definitely not, Dan. There is no way England is going to say—our friend Tony Blair and his government are going to say you mean you have a murdered little baby and a murdered mother and wife and somehow we are not going to honor some warrant over there. I think Coakley‘s office, superior office is doing what they should do slowly.

I might agree with Jonna that if they have enough the push is going to be on if he shows up here, which is why by the way he wouldn‘t tell anybody he was showing up so he could get in and out. They want to get every scenario they can so that it is not—quote—“a rush to judgment” that we‘ve heard about since O.J. and also to try to fit as many pieces together. There is a luxury in an odd way by him being in England. And you know what, the silence is deafening. Jonna may tell him not to say anything, but if this ever does go to trial, if he is ever charged, the jury is going to want to know what he said from the very beginning...

ABRAMS: And Bill, isn‘t the jury also going to want to know why he didn‘t go to his wife and daughter‘s funeral?

FALLON: Oh, Dan, absolutely. In fact what‘s going to come in and it‘s going to be a backdoor coming in, this jury is going to say he is not acting like an innocent person. I call it consciousness of innocence, if you will. We always hear about consciousness of guilt. An innocent man whose wife has been executed, whose baby has been executed, is he saying the right things? Is he doing the right things? And quite frankly, Jonna‘s right. He has a right to stay on his Fifth Amendment. I shall not say a word. But a jury is going to be saying this is not the way a man acts. Just as they said Scott Peterson...

ABRAMS: Yes.

FALLON: ... dallying around with Amber when he should be looking for his wife is not the way an innocent man...

ABRAMS: You don‘t want to talk to authorities, that‘s one thing, Jonna. If the notion is they are focusing on me. They‘re not looking at anybody else. It‘s all so unfair. I don‘t think I am going to be treated fairly. That‘s one thing. Not showing up to your wife and child‘s funeral is something else.

SPILBOR: Yes, but Dan, I say the guy doesn‘t make it to the funeral.  Seriously, they are looking at this guy as a suspect, not just a suspect, the only suspect. And I‘m telling you they will lock him up and throw away the key just like they do in similar cases in Scott Peterson and he can defend himself from behind bars and not get to the funeral. Scott Peterson wanted to go to his wife and baby‘s funeral...

ABRAMS: Yes, but he was already...

(CROSSTALK)

ABRAMS: Wait. Wait. Wait. Scott Peterson was already behind bars at that time.

SPILBOR: And so will this guy be...

ABRAMS: Well...

SPILBOR: ... as soon as he steps foot on American soil.

(CROSSTALK)

FALLON: ... it is not clear to me that he will be...

ABRAMS: Yes.

FALLON: ... and I just want to say that‘s why they are doing this slowly, Dan.

ABRAMS: Yes.

FALLON: I think eventually if they could get—to tell you the truth if Martha Coakley was sure right now they‘d have the warrant.

ABRAMS: I agree. Look, I don‘t think it‘s going to make or break it whether he‘s on U.S. soil or not. I think that...

FALLON: Right.

ABRAMS: ... they‘re going to make this case and then they are going to file an arrest warrant. They‘re going to say we need to arrest this guy when they‘ve got enough evidence, period. And they‘ll get him—I mean there is this notion out there oh they‘re going to have to get him back from England. If he fights that, they‘re going to go to the British authorities. They‘re going to say here‘s our probable cause. The British authorities are going to go oh, yes, OK. And that‘s going to be the end of it. I mean let‘s not overstate how hard it‘s going to be to get him back from England.

FALLON: Dan, you know what‘s an inadmissible piece of evidence, but I think is actually more deafening than his silence, when they asked the parents on film, when they said to the father who was coming out, his father, did your son murder his wife. I know he‘s probably told not to speak to the press, but any person who believed in the innocence of their son would say I can‘t talk about it, but of course he didn‘t. He loved her.  These are parents who have those same questions that the world has.

SPILBOR: Dan, I don‘t think anybody‘s silence is deafening. Look, you know, if you take Miranda literally, it says anything this guys says can and will be used against him. It doesn‘t say anything he says will be very much appreciated and we‘ll send you a nice parting gift and give you a good word with the jury. He can‘t talk because it will be used...

ABRAMS: He can go to the funeral.

FALLON: He can talk.

(CROSSTALK)

FALLON: Innocent people can talk.

(CROSSTALK)

SPILBOR: I would advise him to not to talk for that reason.

FALLON: I know you would.

(CROSSTALK)

ABRAMS: You know what, Jonna? I‘ll tell you this. I don‘t even believe that you would necessarily advise that in every case. Meaning...

(CROSSTALK)

ABRAMS: ... I believe you would advise it in this case because you think it looks so bad for him already. But I‘m not convinced that in every case where a child and mother were killed and they were asking questions of the husband that you would say don‘t talk. I don‘t believe you would do that.

SPILBOR: Maybe not in every case...

(CROSSTALK)

ABRAMS: You‘re at least conceding...

(CROSSTALK)

FALLON: ... find who did it.

ABRAMS: Yes. And Jonna is at least conceding that in this particular case there are reasons why you don‘t want him to talk. Everyone is going to stick around. We‘re going to come back. We‘ve got the forensic pathologist, Dr. Arden, with us, who‘s going to talk to us a lot about assessing the time of death. It becomes a crucial question in this case. And we know some information that could help us answer that question.

And the Enron trial is underway. Prosecutors are calling the company a ticking time bomb. But former—founder Ken Lay‘s attorney says Lay will take the stand and prove that he did nothing wrong. We‘re going to talk with a jury consultant who helped Lay‘s attorneys pick a very interesting jury, include some oil executives and accountants.

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

Authorities are looking for Michael Broersma, I think. He‘s 43, five-eleven, 150. He was convicted of criminal sexual conduct and has not registered with the state. If you‘ve got any information on his whereabouts, please contact the Sex Offender Registry Task Force, 866-501-SORT.

Be right back.

(COMMERCIAL BREAK)

(NEWS BREAK)

(BEGIN VIDEO CLIP)

JOE FLAHERTY, RACHEL ENTWISTLE FAMILY SPOKESMAN: They talked on a daily basis four or five times a day. And it didn‘t matter if Rachel was out of the country, whether she was in England, whether she was at Holy Cross College where she went to school. They were always in constant contact. And actually that‘s one of the things that alerted the family when it did is because the mother had not heard from her daughter. Even after several hours she became concerned.

(END VIDEO CLIP)

ABRAMS: The first sign something was wrong, a mother‘s inability to get in touch with her daughter. Rachel and Lillian Entwistle‘s bodies were found in their suburban Boston home. The husband and father Neil Entwistle left the country. He‘s in England. And now Rachel and Lillian‘s family prepare to lay them to rest, holding a private wake today to remember them, preparing for a funeral tomorrow.

On the eve of the memorial Rachel‘s mother broke her silence about her daughter and granddaughter, telling “The Boston Globe”—quote—“Rachel was a very happy person. She had worked hard and her life was going in the direction she had hoped it would. Rachel would light up a room with her smile, her laughter, and her love of life. She was always thinking of ways to make other people happy”, said her 9-month-old granddaughter who died from a gunshot to the torso was a very happy baby, a very good baby.

Dan Hausle is in England following the case. And Dan, I understand that you are now at Neil Entwistle‘s home. Do you have a sense that the authorities there are tailing him? HAUSLE: Well the authorities I think have been keeping track of him. At times they have driven him around, so I don‘t think it‘s really a tail. I think there is some communication going on between Neil and the police. He calls them when he wants to leave and I think he communicates to some degree about what he‘s doing and I wouldn‘t be surprised if he is keeping in touch with them, letting them know what he‘s doing. It‘s not exact specifics.

ABRAMS: All right, Dr. Jonathan Arden, I want to talk to you about the issue of time of death. It becomes absolutely crucial in this case. Because we know that Neil Entwistle is on a plane to England on Saturday, January 21 at 8:15 in the morning, all right. We also know that she‘s last heard from on Thursday. But here is what the D.A. has to say about how the officers on Sunday, so this is now the day after Entwistle is gone, on Sunday evening find the bodies.

Upon searching the home, officers detected an odor indicating there may be deceased individuals at the home. At that time officers discovered the bodies of Rachel and Lilian Entwistle in the bedroom. Now they had been there the day before. They had not noticed anything out of the ordinary.  Does it tell you anything about time of death based on the fact that there was an odor?

DR. JONATHAN ARDEN, FORENSIC PATHOLOGIST: Well we don‘t have a great deal to work with here. We have mostly the statement of the odor and how they were found and where they were found. And it does tell me something because clearly if a substantial amount of time had passed, the post mortem changes, the break down of the body, the—eventually the decomposition process would have begun and there would have been more than just a little odor at that point. You know when you are talking about time of death from a forensic standpoint you have two different kinds of evidence that you get to work with.

One is the circumstantial evidence, which is not medical, but it‘s very important. Such as in this case she was last seen alive Thursday night. We can lock that in as a time when she was clearly alive and had to have died after that. You look for things like when they stop bringing in the newspapers and that kind of thing. But from the forensic and medical standpoint, you start looking at how the body changes over time. And given what we know that the odor was just beginning to become apparent, in fact, wasn‘t even detected about an hour before the police came in the second time.

She is probably in the earlier stages of decomposition. As best as I can estimate for you, I‘m looking at something like the two, maybe three day time period. Certainly we can‘t go father back than that because then she is still alive. We know that. But it puts us into a timeframe that is highly suggestive to me something that happened before he left...

ABRAMS: Right, that‘s the question. Right, that‘s the question. Before

is it—I mean if the bodies are found with what we‘ve described on Sunday afternoon and he‘s on a plane at 8:15 Saturday, you are saying—and again you would need a lot more evidence to offer up an opinion in court, et cetera, but based on what you are hearing you think it would be unlikely that she died Saturday or later?

ARDEN: Yes, you‘re right. We would need more evidence for me to give you an opinion on the stand, but what we have now I think very much says that it is very unlikely that she or they died, excuse me, after he goes to England. I think it is much more probable that this happened before he leaves the country.

ABRAMS: And...

(CROSSTALK)

FALLON: Dan, can I ask the doctor about...

ABRAMS: Go ahead, Bill.

FALLON: ... no blood?

ABRAMS: Yes.

FALLON: Doctor, there seems to be no blood where these two wounds are.  Now obviously you would have to be at the scene and things like that, but could you explain to us under what circumstances with bullet wounds that went through a baby‘s abdomen into the mother‘s abdomen and then in the mother‘s head. Do you have an opinion, again not for court, but how you get no blood under those circumstances? What kind of wounding would happen that would cause no blood?

ARDEN: So far the only thing that I have heard that addresses that is as I understand it this is a small-caliber weapon that was used. And small-caliber weapons can certainly cause lethal injuries. They can cause serious harm. They tend to leave smaller holes in the body and the body surface.  There could well be a lot less bleeding externally. We don‘t really seem to know what happened in terms of bleeding on to the surroundings, the blankets and so on, but I think that‘s likely the best explanation.

ABRAMS: All right, I got to wrap it up. Dan Hausle, Dave Wedge, Dr.

Jonathan Arden, Bill Fallon, Jonna Spilbor, thanks to all of you.

Appreciate it. We‘ll be continuing to follow this story.

Coming up, the Enron trial officially underway. A jury picked in a day. Get this—the jurors include oil company employees and accountants.  The defense jury consultant who helped pick those jurors joins us.

And later, why I am tired of hearing paid guns, defense attorneys blaming the media for their client‘s problems. It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS: Coming up, the jury in the Enron trial picked in a day.  Opening statements are ongoing. How did they get accountants and oil executives on the jury? We‘ll talk to the jury consultant who helped the defense team, up next.

(COMMERCIAL BREAK)

ABRAMS: The Enron trial is off to a quick start. Opening statements began this morning after jury selection took one day, 16 picked as jurors and alternates. Defense attorneys called them a well-educated group. Here‘s what we know about them, eight women, four men, ranging in age from 24 to 66. Six have college degrees and of those two also have master‘s degrees.

Get this, three work in the oil and gas industry and a few are in accounting. Three are in education and two are self-employed. Two are Hispanic, one is Indian, the rest are white. We are also learning more about the selection process leading up to the trial. Hundreds of other potential jurors who were not picked as part of yesterday‘s pool. They were asked some interesting questions.

Some had no problem revealing their biases about the defendants. We‘ll get to some of those in a moment, but first let me bring in my guests.  Joining me now from Houston is my friend “Fortune” magazine senior writer Bethany McLean, who is also the co-author of “The Smartest Guys in the Room: The Amazing Rise and Scandalous Fall of Enron”, and jury consultant Robert Hirschhorn who was hired by Ken Lay‘s defense team to help select this jury. Thanks a lot to both of you for coming on the program.

UNIDENTIFIED MALE: Thanks, Dan.

ABRAMS: All right, Mr. Hirschhorn, let me start with you. On the issue of having oil and gas executives and accountants on this jury you thought that was good for Ken Lay?

ROBERT HIRSCHHORN, JURY CONSULTANT: I thought it was great for Ken Lay. The people are particular. The people in the oil and gas industry understand the boom and bust cycles that that industry goes through. They understand that sometimes there are factors and events above and beyond what‘s going on with a corporation that will affect its bottom line in the health of a company.

In terms of the accountants, there is going to be a lot of testimony about this case and accounting. And the point is that creative accounting doesn‘t mean it‘s necessarily illegal accounting. And so if the defense really wants to get the jury to understand in this case is that panic caused the collapse of Enron and not the conduct of Ken Lay.

ABRAMS: And Bethany, what did the prosecutors say about why they would accept—I would be nervous having an accountant on the jury for that reason because they may view the case so technically and make a point that you made on this program yesterday, which is that there might have been some areas where there wasn‘t a technical violation, but it violated the spirit of the law.

BETHANY MCLEAN, “FORTUNE” MAGAZINE: Right. The prosecutors have not been talking about the jury selection much, if at all. But their opening arguments were very interesting today because the prosecutors really tried to move the argument away from the accounting. They said over and over again this is not about accounting.

This is about lies. And they attempted to show places where both Jeff Skilling and Ken Lay simply lied in a way that has nothing to do with the technicalities of accounting. And it will be interesting to see if the defense—if the prosecutors can keep the discussion on that territory.

ABRAMS: Bethany, were you surprised that they promised that Ken Lay was going to testify?

MCLEAN: No, I think we knew in advance Lay was going to testify. It‘s been very hard to keep his—to keep him quiet. He had given a speech in Houston back in December laying out his views on what happened in Enron. I mean he‘s been out there and so has Skilling, so I think—I don‘t think that came as much of a surprise.

HIRSCHHORN: Well Dan I can just tell you this. Wild horses could not keep Ken Lay off the witness stand. He has had this cloud over his head for years now. He‘s been waiting for his day in court. Nothing would stop him from testifying...

ABRAMS: Well look, but that‘s what we hear in every case and yet in a lot of cases they don‘t actually do it. In a lot of cases we hear and O.J.  wanted to take the stand more than anything. His lawyers wouldn‘t let him, et cetera. But in this case, you know, he is going to take the stand, which is an interesting choice. Are they worried, Robert? Let me read you this from the prosecution‘s opening statement.

To the outside world Enron appeared to be a picture of corporate success. Inside the doors of Enron things were terribly wrong. When Lay took the CEO post in August 2001 that Skilling had vacated, he told the company—he is told the company is the equivalent of a ticking time bomb.  That Enron is facing billions of dollars in losses. His response, he steps to the microphone and falsely assures the investing public that the company is healthy. How is he going to explain that?

HIRSCHHORN: He‘s wrong. This is a company that booked over $1.8 billion in profit. This is a legitimate—this is not a house of cares.  This was legitimate profit that Enron had been making. There were factors that occurred that were well beyond the control of Ken Lay that caused the collapse of Enron and you see that‘s the point.

The prosecutor can accuse Ken and Jeff of lying, but if prosecutors are taking comments out of context, if they‘re only telling the jurors about half the statements and not putting it in context, which I think the media has done for years now, this jury is going to hear the full story and the full truth. And I am convinced they have the courage to come back...

(CROSSTALK)

HIRSCHHORN: ... the courage to come back...

ABRAMS: Yes.

HIRSCHHORN: ... and say not guilty.

ABRAMS: But Bethany, your book didn‘t find what Mr. Hirschhorn is saying, did it?

MCLEAN: No it didn‘t and we talked to a lot of people and I think you‘ll hear from the defense lawyers that the media is biased in this as well, which I can only say from the beginning if Jeff Skilling and Ken Lay were totally blameless it would have been a much better story. Because what we said in our book became the conventional wisdom after a while and no journalist wants to do that.

It‘s interesting because the defense has gone to great lengths to say that these partnerships that Andy Fastow ran that everything was disclosed and disclosed and disclosed, but yet, then why did the disclosure of these partnerships Andy Fastow ran spark such panic into the hearts of investors in the fall of 2001 if everybody already knew this? And so there are some interesting logical gaps that I‘ll wait to hear how the defense overcomes that.

ABRAMS: And I should tell you...

(CROSSTALK)

ABRAMS: Let me—I‘ll let you respond, Robert—but I should tell you, Bethany, my “Closing Argument” today is going to be about how I am tired of defense attorneys, I‘m not referring to this case, blaming the media...

MCLEAN: Can‘t wait to hear it.

ABRAMS: ... all the time. They‘re always blaming the media. It‘s always the media‘s fault...

HIRSCHHORN: Well this one definitely is, Dan...

ABRAMS: It‘s the media‘s fault...

(CROSSTALK)

ABRAMS: Everything is always the media‘s fault. It has nothing to do with the accounting. It has nothing to do with the facts of the case.  Somehow the media brought down Enron, right?

HIRSCHHORN: And Dan, here‘s why. You know—anybody that has got any knowledge about the financial world knows that the financial world can absorb good news or bad news, but they can‘t absorb uncertainty and there was uncertainty about Andy Fastow and that‘s what caused the chain of events...

(CROSSTALK)

ABRAMS: There was uncertainty about Andy Fastow or there was uncertainty about Enron and their...

HIRSCHHORN: Well about Andy Fastow...

(CROSSTALK)

HIRSCHHORN: About Andy Fastow and his deals...

(CROSSTALK)

ABRAMS: That‘s such a straw man. I mean look, Andy Fastow is an issue here, but to suggest that the reason Enron went under is because Andy Fastow was—if the company was as profitable as you say it was and there was one guy who was lining his pockets a little bit, I promise you that‘s not going to make the company go under.

HIRSCHHORN: And we‘re not suggesting that. What we‘re suggesting is when Andy‘s conduct became questionable and the “Wall Street Journal” started writing all those articles that‘s what caused the money to dry up.  And when the money dried up, that‘s what caused the panic and the collapse.

ABRAMS: Yes. Bethany, do you want a final word on that?

MCLEAN: But Dan, I was covering this at the time. I was covering Enron‘s collapse. And it wasn‘t Andy Fastow‘s conduct that caused Wall Street to panic. It was worries that these partnerships Andy was running were masting (ph) Enron‘s true financial condition that they were helping Enron create earnings, that they were helping Enron hide its debt. Whether those were technically legal or not, it was those fears that you couldn‘t trust Enron‘s reported numbers...

ABRAMS: Yes.

MCLEAN: ... that cause the panic. Not any fears about Andy Fastow‘s personal conduct.

ABRAMS: We shall see...

MCLEAN: And...

ABRAMS: I‘m sorry.

MCLEAN: Go ahead...

ABRAMS: Yes. No, I think that‘s...

MCLEAN: No, I was just going to say to suggest otherwise is crazy.

ABRAMS: ... that‘s the heart of the response there. And look, this is what the case is about. I mean what we‘re talking about right here...

HIRSCHHORN: You bet.

ABRAMS: Bethany McLean, Robert Hirschhorn, thanks a lot. Appreciate it.

HIRSCHHORN: Thank you, Dan. Appreciate it.

ABRAMS: Coming up, why I am tired of defense attorneys like my friend Mark Geragos blaming the media for their client‘s problems. It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS: My “Closing Argument”—I have had it with criminal defense attorneys blaming the media for their clients‘ woes. It‘s never the evidence or the facts or even the prosecutors. It‘s the media from O.J. to Michael Jackson, Timothy McVeigh to Scott Peterson. According to their lawyers, they were all little lambs taken out to slaughter by the media.  Please. Peterson‘s ex-attorney, Mark Geragos, is now taking his show on the road, telling a legal organization last week that Peterson is innocent and that the media coverage prevented him from getting a fair trial.

The network morning shows, cable news and the tabloids are, according to Geragos, the—quote—“axis of evil”. This coming from the same guy who went on CNN‘s “Larry King” before he was retained by Peterson and pronounced—quote—“The most damning piece of circumstantial evidence comes out of his own mouth and his own hands when he hands the police that receipt from the very location where two miles away she was found. I mean that‘s just a devastating thing.” Yes, it is, unless of course, you become his attorney.

Geragos and others, quick to remind people about the beauty of our jury system, how we need to withhold judgment until the jurors hear all the evidence. That is unless the jurors rule against him. Then the jurors get dissed, they‘re gullible, too easily influenced, misled, not by the facts, as the judge instructed them, not by the witnesses they saw for weeks or months, but by the media coverage they were instructed not to watch.

It‘s not just Geragos who I have a lot of respect for. It‘s become the mantra, the Talking Points for many criminal defense attorneys in high profile cases. Never take the blame. Divert attention from the facts. Try to find a scapegoat like Detective Mark Fuhrman in the Simpson case.  Otherwise, just blame the media. Speaking of O.J. Simpson, there I think the media was too fair.

Many of the illogical arguments put forth by his defense team, given

the same coverage as the real facts, by making everything two-sided with a

prosecutor and defense attorney offering analysis, the media coverage make

helped make Simpson‘s outlandish arguments seem well outstanding. The fact that he continues to complain about media coverage of his case is laughable.

And Michael Jackson‘s top-notch attorney Tom Mesereau has also been on a blast the media tour. (INAUDIBLE) despite the fact that a grand jury indicted Jackson, the coverage so often focused on the credibility problems with the accuser‘s family. Yet it seems Mesereau is furious Jackson didn‘t emerge with a squeaky clean image. That of course would obscure the reality that Jackson‘s behavior is and was bizarre and with children was at best inappropriate.

It would also ignore the reality that he settled more than one multi-million dollar lawsuit with the family of a young boy who accused him of abuse. Look, there are a lot of times when the media deserves to take heat for everything from inaccuracies to bias, but I don‘t want to be lectured on bias by a lawyer who is paid handsomely to take that position.

Coming up, ABC News anchorman Bob Woodruff returns to the U.S. A lot of you writing in with get well wishes. Your e-mails are next.

(COMMERCIAL BREAK)

ABRAMS: I‘ve had my say, now it‘s time for “Your Rebuttal”. Last night in my “Closing Argument” ABC News co-anchor Bob Woodruff and his cameraman Doug Vogt injured in Iraq. Both returning to the U.S. this afternoon for more treatment at the Naval Medical Center in Bethesda. I tried to respond to those who‘ve asked why is it getting so much coverage when our troops are dying there every day.

From Colleyville, Texas, Paula Roach. “My prayers go out to him and his family and thanks for always giving our U.S. troops words of support.”

Dennis Gorman in Martinez, California, “You made them sound like they saved the free world by being over there. I don‘t want to hear they were doing it for the American people.” Well you will hear it from me, Dennis.

Robert Simpson, “I can‘t explain how much this meant to me. I don‘t even watch ABC, but was proud of a man like Dan Abrams standing up for a fellow reporter.” Thank you.

And I said “The New York Times” should apologize for its insulting headline and article, which suggests that Woodruff was only there for ratings.

Susan Rafter in Washington, D.C. “Your criticism against ‘The New York Times‘ front page article is ill-conceived. I‘m grateful ‘The Times‘ has the courage to speak the truth about the tremendous pressure an anchor has to cover the war in the field.”

Oh please, Susan. Bob Woodruff is a big boy. He went there because he wanted to cover the story. And you know what else? If he didn‘t, people would be saying oh he‘s the pretty face in the studio. It‘s a really insulting article, particularly right now.

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

“HARDBALL” is up next. I‘ll see you tomorrow.

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

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