updated 3/13/2006 10:58:54 AM ET 2006-03-13T15:58:54

Guests: Davidson Goldin, Michael Gaynor, Clint Van Zandt, Jonna Spilbor, Amy Bradley, Joe Cosgrove, Jay Paul Gumm, B.J. Bernstein, Anonymous Juror

SUSAN FILAN, GUEST HOST:  The only person of interest in the brutal murder of a New York grad student passes a lineup in another rape.  Could police be looking at the wrong man? 

The program about justice starts now.  

This is the only official person of interest in Imette St. Guillen‘s murder case.  But are police zeroing in on the wrong man? 

Hi everyone.  I‘m Susan Filan.  Dan is off today. 

The investigation continues into the murder of Imette St. Guillen.  Darryl Littlejohn appeared in a Queens, New York courtroom yesterday and was later put in a lineup for a separate rape case, but the victim in that case failed to identify him as the man who attacked her back in October. 

He‘s now being held here at Rikers Island on a parole violation, while investigators look into his possible connection to Imette St. Guillen‘s brutal murder.  Littlejohn‘s attorney spoke out this morning in his first live interview with Matt Lauer on NBC‘s “Today” show. 

(BEGIN VIDEO CLIP) 

MATT LAUER, CO-ANCHOR, “TODAY”:  There was a report that there was a horrible struggle involving the murder of this young lady and that her fingernails were broken.  There would be DNA evidence under her fingernails.  There were also reports that Darryl Littlejohn had scratches on his neck.  Have you seen those scratches? 

KEVIN O‘DONNELL, ATTORNEY FOR DARRYL LITTLEJOHN:  I didn‘t see any scratches on his neck whatsoever. 

LAUER:  So you‘ve found—you‘ve seen no sign that he was in any kind of a fight over the last week or 10 days? 

O‘DONNELL:  Not at all.

LAUER:  Talk to me a little bit about his record and his past. What kind of guy is he in your opinion? 

O‘DONNELL:  Well obviously if you judge him based on your record, he‘s not the kind of guy that you would invite over for dinner.  However, the conversation that we had was very cordial.  He treated me like a gentleman and I treated him like a gentlemen.

LAUER:  As I mentioned, seven felony convictions, including bank robbery.  He‘s admitted to patrol officers he has anger management issues and have—has actually sought treatment for that.  How long do you think they can hold him on these parole violations without charging him with some kind of other crime?

O‘DONNELL:  Well they are entitled to submit his case to the parole board in which there will be a hearing, and if he‘s found guilty of any violation, they can have him serve the remainder of his time. 

LAUER:  There have been reports, Kevin, that he is not cooperating with police, although we want to mention, he has been in at least one, if not two police lineups over the last several days, for sexual assaults that have occurred in this area in the past, police possibly trying to connect him to those.  It‘s been my understanding that the victim, at least one of the victims who took part in that lineup could not identify Darryl Littlejohn; is that correct?

O‘DONNELL:  That‘s absolutely correct.  He was not identified in the lineup.  The victim of that rape observed the lineup, she had each person in the lineup stand up, yell out shut up... 

LAUER:  Which is what happened during the assault?

O‘DONNELL:  Correct and the victim was still unable to identify him.

LAUER:  And is he, in your opinion from what you know, cooperating with police on this open investigation involving Imette St. Guillen? 

O‘DONNELL:  No, there‘s no reason for him to cooperate.  He‘s entitled to the same constitutional protections that you and I are entitled to, Matt. 

(END VIDEO CLIP)

FILAN:  Joining me now, “New York Sun” columnist Davidson Goldin, retired NYPD homicide detective Michael Gaynor, criminal defense attorney Jonna Spilbor, and former FBI profiler and MSNBC analyst, Clint Van Zandt. 

Hey Davidson...

DAVIDSON GOLDIN, “NEW YORK SUN” COLUMNIST:  Hey, Susan.

FILAN:  ... what‘s going on?  I mean what are you hearing from your sources?  Do we have the wrong guy or is there an arrest imminent?

GOLDIN:  Well we don‘t know yet if it‘s the wrong guy, but I can tell you the police think they‘ve got the right guy.  An arrest is not imminent.  There‘s a possibility an arrest could come as soon as Sunday, but more likely would be next week. 

The only thing that could move it into the weekend is you‘ve now got the NYPD dealing with this political issue that we‘re talking about here, which is how they appear and how do they look after five days of holding this guy on this parole violation and not actually charging him with a crime, so until now the feeling in the NYPD is that there is no rush, they‘ve got the guy locked up for violating his curfew.  They‘ll take their time, wait for the forensic tests to come in and at the right time charge him...

FILAN:  Let me go to Michael Gaynor on this.  Are we just sitting back now waiting for this crime to get solved in a lab by some tests or what‘s going on with NYPD?  Do you agree with what Davidson is saying? 

MICHAEL GAYNOR, FORMER NYPD HOMICIDE DETECTIVE:  Well no, not entirely.  Some of what‘s going on would include eliminating other potential suspects in this case, verifying alibis, speaking to people that were in the bar again and dealing with Mr. Littlejohn himself, not just what he‘s speaking to them about in jail.  Obviously, he‘s got an attorney now; he‘s not going to be speaking about much, but associates, any patterns that he may be associated with.  They‘re still looking at him and other aspects of the case, although for the most part, it‘s downtime. 

FILAN:  So you‘re saying...

GAYNOR:  The scientists are doing their work, they‘re going to be very meticulous in coming back with DNA results and the police department is not a bit concerned with the time factor over here.  They don‘t look bad in any law enforcement officer‘s eyes.  Every professional knows that they have to take their time.  They got plenty of time in view of the parole violation. 

FILAN:  And do you think maybe people are starting to go say in NYPD, oops, some of this forensic evidence isn‘t coming back the way we thought it would, maybe we‘ve got the wrong guy? 

GAYNOR:  No, I don‘t think they‘re saying oops.  There may be more or less of a so what when it comes to one to two pieces of evidence because there‘s a multitude of things involved in this case. 

FILAN:  Let‘s talk about some of the evidence that we have that does link Littlejohn to this crime.  We‘ve got carpet fibers from the home that matched those on tape that was found on Imette and on a blanket.  Littlejohn is the only male in that bar, the only employee in that bar that refused to give a DNA sample.  He showed up for work, remember, with a scratch on the back of his neck the day Imette was killed. 

And records track Littlejohn‘s cell phone to the area where the body was found before it was discovered.  So those are things that we could say link him.  Now let‘s talk about things that don‘t link him.  We‘ve got semen stains on a blanket that don‘t match Littlejohn‘s DNA and we‘ve got DNA under the victim‘s fingernails that does not belong to Littlejohn and might actually belong to a female. 

Clint Van Zandt, let me talk to you about that.  This is what‘s got people sort of thinking oh my gosh maybe we do have a lynch mob mentality against this guy, maybe it is a rush to judgment and we do have the wrong guy. 

CLINT VAN ZANDT, FORMER FBI PROFILER:  Yes, as I said, police department has got their work here.  They‘ve got to pull all these things together.  As you and I have talked, Susan, all this week, it‘s the circumstantial case is great.  I mean, it seems they can put Littlejohn with the victim, perhaps in her van by one witness when they left.  He appears perhaps to be the last living person or the last person that we can put her with before her body is found. 

Let‘s talk about the carpet a little bit though.  I was an FBI agent in Georgia and I worked around carpet factories, running investigations and one of the things I learned that you go into a carpet factory, you say OK, I‘ve got this piece of carpet, it‘s red carpet, it came out of the suspect‘s house, and it was also found on the tape wrapped around the victim‘s face.  Then what if the carpet factory says you know, we made that red carpet from 1995 to 2001, we produced 100,000 square feet of it, and sold it all across New York State and most of the eastern part of the United States. 

That‘s good.  That says somewhere that piece of red carpet fiber was picked up, but unless there‘s something more specific, that‘s not going to directly link it to his apartment.  One more time, more circumstantial evidence as the weight of circumstantial evidence builds, maybe they can convict, but they need that piece of linking physical evidence that says Littlejohn to the exclusion of anyone else in the world committed this horrific crime. 

FILAN:  Jonna, let me bring you into this.  Now, if you hear that there‘s going to be an arrest imminent in this case and this is what you hear in terms of evidence linking him so far are you thinking motion to dismiss right away?  Are you thinking reasonable doubt?  Are you thinking, gosh, I‘d rather have a carpet fiber that I have to worry about than DNA that links my client to this allegation? 

JONNA SPILBOR, CRIMINAL DEFENSE ATTORNEY:  Yes, absolutely, the latter, Susan, because I don‘t think what they have so far, which is, as far as we know are just the carpet fibers and the tape, which are very common, that they have even enough to get probable cause to arrest him for this murder, so I‘m not afraid at this point as a criminal defense attorney that once he is arrested, oh, all bets are off, because I think without more circumstantial evidence, they got nothing, nothing to pin this guy on this murder. 

FILAN:  Well, I‘m going to say, Michael Gaynor, you‘re not going to agree that there‘s nothing, but I‘m going to ask you do you think that maybe, maybe there‘s an accomplice to this crime from what you‘ve learned from your police sources?  In other words, detectives still have not ruled out the possibility that the killer had an accomplice and were focusing on a female customer who was in the SoHo bar at the same time as St. Guillen.  The woman‘s story has a number of discrepancies, but she was seen leaving The Falls when St. Guillen was escorted out of the bar by the bouncer, Darryl Littlejohn. 

GAYNOR:  I‘m certain that the police department is going to make every effort to determine whether or not anyone else was involved with Mr.  Littlejohn and this crime or any other crime for that matter and whether or not you find a female accomplice or another male accomplice, I can‘t say that for sure.  Chances are he worked alone. 

FILAN:  You think so?

GAYNOR:  Well it seemed to be a crime of opportunity.  He was there.  It was then.  The circumstances were just right, chain of events.  I don‘t think he had the time to do any particular planning in this case. 

FILAN:  You‘re familiar with his criminal record, though, and we‘ve put this up before for our viewers, but really there isn‘t anything in his criminal record that suggests that he‘s either committed this kind of a sexual assault or a murder before.  Does that worry you at all? 

GAYNOR:  No, not at all, not at all.  I don‘t even know if a rape did occur in this case.  I‘m not sure what the circumstances are other than a homicide occurred.

FILAN:  And Davidson, let me ask you, do you hear anything about any more happening to the Dorrians.  Those are the bar owners that people are talking about, because they just didn‘t come forward in a timely manner and in fact, people are saying they actually lied to police.  What are your sources saying is going on with respect to that part of this case now?

GOLDIN:  Well Susan, there are plenty of people who want to go after the Dorrians, who think that whether it‘s obstruction of justice or having their bar shut down, there are people who really do want to go after them, but my understanding at this point is that the NYPD has asked everybody involved from the state liquor authority investigating the bar to prosecutors who might be looking at any obstruction of justice charges to back off.  The NYPD I‘m told wants to have an arrest in this case and have that arrest sink in with people before moving against the bar or the bar owners. 

In part at this point, Susan, that‘s because the key witness right now to this crime as of now would be Danny Dorrian who was bartending apparently that night or present that night.  He‘s the one who at first said that Imette left alone and now says that Darryl Littlejohn, the bouncer, escorted her out.  So at some point perhaps he‘s going to seek some sort of immunity is the thinking or some sort of deal to protect him or his bar, because right now the cops do need his testimony.

FILAN:  Clint, does that sound right to you?  Does that sound like a reasonable way to approach this?  I know we‘ve been outraged here on this program, but...

(CROSSTALK)

FILAN:  ... now that we do perhaps need his testimony, do you agree with the police saying, hey, leave him alone for now, let‘s solve this crime, let‘s get our guy? 

VAN ZANDT:  Yes, for now I do.  You know there‘s multiple layers of responsibility here.  Number one, there‘s the bar for ever placing this woman perhaps in this guy‘s hand.  Number two, for ever employing Littlejohn in the first place.  Number three, there‘s a state parole officer who wasn‘t keeping close tabs. 

And number four, my former organization, the federal government, this guy was supposed to have been on parole supervision as a bank robber, and somehow the feds dropped the ball and didn‘t even know he was out there.  They should have been checking on him, finding out he‘s an ex-con, working in a bar, jerked his papers and put him back on the inside.  So if any of these things would have worked right, either moral responsibility on the bar or legal responsibility on the state or the federal government, Littlejohn, should he be her assailant, would not have been there to do this. 

FILAN:  Jonna, what do you think about this?  Do you think—I mean do you think it‘s right to back off on these guys or do you want to see them get nailed if someone else is going to get nailed in this?

SPILBOR:   Well obviously if the police need their testimony, they‘re going to back off.  You know there‘s a whole other theory that we could float out there, that you know maybe Dorrian isn‘t being exactly truthful because maybe Dorrian has more to do with this crime than he‘d like to let on and that‘s something that the police should explore...

FILAN:  Let me get Michael Gaynor in on that.  Do you have anything to say about that?

GAYNOR:  I think if there was any validity to that at all, Mr.

Littlejohn would have been shouting that immediately...

SPILBOR:   Mr. Littlejohn might not know and since they‘re focused on Littlejohn, he‘s not going to say anything.  He‘s clamming up, as he should.

FILAN:  To be clear, neither one of these people are suspects right now.  I mean let‘s be just be very, very clear with our viewers about that, but I really want to hear Michael Gaynor‘s thoughts on that. 

GAYNOR:  No, I think Dorrians are witnesses in this case and it‘s not unusual, if you want to think about credible witnesses in homicide cases, don‘t go any further than Sammy “The Bull” Gravano, 19 home homicides and he becomes a credible witness.  We don‘t deal with the most credible people when we deal with criminal activity.  We have to take our witnesses where we find them, but we have to make sure they‘re telling the truth. 

(CROSSTALK)

GAYNOR:  ... that he‘ll be polygraphed as well. 

FILAN:  Well let that be the last word on this.  Davidson Goldin, Michael Gaynor, Jonna Spilbor, Clint Van Zandt, thank you so much for joining us. 

And if you have any information on Imette St. Guillen‘s murder, please call the tip line at 1-800-577-TIPS. 

Up next, he‘s suspected of killing as many as 16 people.  On trial right now for two of those murders.  But that‘s not why Hugo Selenski is getting so much attention.  The real reason, well just look at him.  His nickname is handsome Hugo. 

And one state has a new idea on how to deal with sex offenders.  A bill in Oklahoma would let prosecutors ask for the death penalty for anyone convicted of abusing a child more than once. 

Your e-mails, send them to abramsreport@msnbc.com.  Remember to include your name and where you‘re writing from.  I‘ll respond at the end of the show.

(COMMERCIAL BREAK)

FILAN:  On Monday, a Pennsylvania jury will hear closing arguments in the trial of an accused serial killer, Hugo Selenski, a 32-year-old man whose personality and good looks seem to be garnering as much attention as the gruesome crimes he‘s accused of committing.  He‘s suspected of killing as many as 16 people, but the charming Selenski has become something of a local legend in Wilkes-Barre, Pennsylvania. 

Dan has the story.

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE:  People come out of their offices, stand against their balcony, just to get a glance at him. 

JOE COSGROVE, PENNSYLVANIA DEFENSE ATTORNEY:  He‘s become this television character, where he‘s handsome and he‘s witty. 

DAN ABRAMS, HOST, “THE ABRAMS REPORT” (voice-over):  Handsome Hugo Selenski is also an alleged serial killer.  On trial for robbing and shooting two suspected drug dealers.  Their burned bodies found buried on his property.  A local pharmacist and his girlfriend who both knew Selenski, also found dead nearby and bones from what could be up to 12 others discovered in Selenski‘s backyard. 

So what makes this accused murderer and convicted bank robber a revered outlaw to some?  So much so that his prison drawings have been selling for hundreds of dollars.  It probably started with a daring escape from jail in 2003.  Selenski tied sheets together and shimmied down seven stories, then placed a mattress over the barbed wire and just walked out. 

GENE FISCHI, WARDEN, LUZERNE COUNTY JAIL:  We, the Luzerne County Prison Board and the prison administration accept full responsibility for it. 

ABRAMS:  But he didn‘t run off to some remote hideaway.  He went to his aunt‘s home nearby for the weekend, then announced the police could pick him up at his own home, which they did the next day.  So why did he stay so close?  He reportedly told family—quote—“I would rather go to prison than not see you again.”

UNIDENTIFIED FEMALE:  Do you want to tell me what happened there, why police are searching? 

UNIDENTIFIED MALE:  I have no idea. 

ABRAMS:  It‘s also his attitude, his confidence both in and out of court. 

DEMETRIUS FANNICK, SELENSKI‘S ATTORNEY:  I think most people who have met him, most people who have spoken with him, they like him.  And I don‘t think it‘s just his physical appearance. 

ABRAMS:  But apparently his looks don‘t hurt. 

UNIDENTIFIED MALE:  There are some women that actually—they work here that actually have Hugo‘s picture from the newspaper posted up you know in their offices.  Why?  I don‘t know. 

ABRAMS (on camera):  But the sentiment towards him may also reflect a frustration with the Luzerne County authorities.  After all, Selenski allegedly told police, they‘d find five bodies at his house.  A comment jurors won‘t hear because the police didn‘t follow proper procedure. 

(voice-over):  And he won‘t be charged for the escape because prosecutors failed to file the proper papers on time.

ED LEWIS, REPORTER, “THE CITIZENS‘ VOICE”:  Any other defendant in his situation, would be begging for a jury from outside Luzerne County, but Hugo went head on and he demanded a trial, for a jury to be selected from here. 

ABRAMS:  A local jury that‘s been watching handsome Hugo Selenski while listening to evidence that could prove his looks truly are deceiving.

(END VIDEOTAPE)

FILAN:  Amy Bradley is a reporter for the WBRE, the NBC affiliate in Wilkes-Barre, Pennsylvania.  Thanks so much for joining us, Amy.  Amy...

AMY BRADLEY, WBRE REPORTER:  You‘re welcome...

FILAN:  ... you‘ve been in court every day.  I mean this is bizarre.  What is the buzz around the courthouse about handsome Hugo?  Is he really that good looking and is this possibly going to carry the day with the jury? 

BRADLEY:  Well of course that is a matter that you know the jury will have to decide, but many people here in Luzerne County do think that Hugo Selenski is very attractive, but I think even more than that, it‘s really the confidence that he exudes.  Throughout this trial he has smiled and he talks with the crowds as he‘s walking through. 

Literally dozens of people line up every day just to get a glimpse of him and just hope for a seat in the courthouse.  The courthouse is—the courtroom actually is actually pretty small and so there‘s not a lot of room for spectators and people literally line up first thing in the morning just to get a glimpse of him. 

FILAN:  Is it because of what he‘s accused of committing is so heinous and gruesome or is it because he‘s so cute? 

BRADLEY:  Well that‘s a question that‘s tough to answer.  I mean I think that it is really sort of the outlaw factor of Hugo Selenski.  You know, there‘s these bodies found at his home and yet he‘s only been charged in two of the deaths and it‘s so interesting, because it was a home that he shared with his girlfriend at the time and out of all of the remains that they found, which they have confirmed to be at least five, again, he‘s only been charged with two of those. 

FILAN:  And if he is acquitted of this, is he just going to walk out of court a free man at the end of this case? 

BRADLEY:  Well that‘s a question that we‘ve been debating amongst all of the reporters of course, and what we believe will happen is that if he is found not guilty on these two charges, that the district attorney will be ready to slap him with a couple of other charges. 

FILAN:  Amy, stay with us.  Also joining us to offer some legal analysis of this trial in Pennsylvania is defense attorney Joe Cosgrove.  Joe thanks very much for joining us.  You‘ve defended...

COSGROVE:  My pleasure.

FILAN:  ... murder victims.  Is handsome Hugo now your dream defendant or is he just like any other defendant that you have to defend based on the evidence?

COSGROVE:  Well, the evidence is what will carry the day.  However,

you know, we try criminal cases in courtrooms.  We don‘t try them on the

Internet.  We don‘t try them with the jury behind Plexiglas and double-way

two-way mirrors.  We try them so that they get to see the defendant, the defendant gets to see his accusers, it‘s the theater of a courtroom.  It‘s the drama of a courtroom.  So if I had my choice to pick my defendant, if I could go to central casting, I might pick someone like Hugo. 

FILAN:  Why?  Why do you care if your defendant is good looking or not? 

COSGROVE:  Well, let‘s put it this way.  I don‘t think that Hugo‘s good looks will carry the day, but they‘re not going to hurt and you look for any advantage you can as a defense counsel, so that someone who would come in there that perhaps would be menacing to the jury, instead of someone who looks like a college professor, that could hurt if the jury has an immediate reaction against that defendant and his looks. 

But this jury—perhaps what the good looks do is neutralize the—some of the initial feelings that the jury may have.  They walk in there perhaps thinking what a defendant charged with murder looks like, and he doesn‘t look like Hugo I will bet. 

FILAN:  What about Scott Peterson?  I mean he wasn‘t exactly your ideal looking murderer-defendant, and look how—look where he is now, he‘s on death row in California.  So I‘m really—I have to say, I‘m not only puzzled by this argument.  I‘m actually troubled by it, because look at what he‘s accused of.  I mean is the state‘s case in so much trouble, is the evidence so bad, is the prosecution doing such a poor job that all we can talk about is how handsome Hugo is?

COSGROVE:  Well no, I don‘t think that‘s a fair assessment of the prosecution‘s case or the job they‘ve done.  They‘ve had a difficult case.  They have believed from the beginning that this is a very dangerous man and let‘s face it, the evidence that they have is difficult.  As one of your previous guests had said, you know the prosecution takes their witnesses as they find them, so who do they have in this case? 

They have a couple of really bad guys who have testified against Hugo, and then they‘ve tried to bolster that with some expert testimony.  They‘ve had a tough case and they‘ve worked their hearts out in this case, and I think they‘ve done a pretty good job. 

FILAN:  And is some of the reason...

COSGROVE:  How the jury will view this, I don‘t know. 

FILAN:  Is some of the reason that this case is so tough is because one of the allegations is that he shoots his victims, burns their bodies, buries them in his backyard, so there isn‘t any evidence that could forensically link him to the crimes he‘s accused of committing? 

COSGROVE:  Well that evidence is horrible.  You know, any time you have bodies buried in your backyard, that‘s a bad day for a defendant.  However, again, the only people that link Hugo to that evidence, to those bodies, are two really bad fellows, guys who have been convicted, guys who‘ve cut deals with the prosecutors, who got good deals.  There was testimony yesterday that one of them supposedly admitted that indeed he lied about Hugo so that he could get better treatment and he got a good deal. 

FILAN:  Amy...

COSGROVE:  And so the jury has to weigh his credibility. 

FILAN:  Amy, let me bring you back into this.  Do you get any sense that people are disappointed with the prosecution or even outraged with the prosecution, because they‘ve made some mistakes, they‘ve dropped the ball certainly on the escape and the police on that issue with Miranda so that his confession isn‘t going to come before this jury? 

BRADLEY:  Well it is interesting because everyone who I‘ve talked to that‘s been sitting in the courtroom is saying that really the prosecution has made some errors on this case.  It‘s unclear though, of course, if those errors will be enough to let Hugo Selenski walk free and I also wanted to point out that it‘s important to note that this jury is made up of eight men and only four women and only two of those are younger women.  So, again, I‘m not sure how much his looks are going to play into this. 

FILAN:  Joe, Amy, thank you very much for taking the time to join us on the program. 

Up next...

COSGROVE:  A pleasure.

BRADLEY:  Thank you.

FILAN:  ... Dan talks to a politician who wants two-time child molesters to face the death penalty.  Opponents say that‘s way too harsh a sentence and it isn‘t even constitutional. 

And a Georgia teen is appealing his conviction.  He was sentenced to 10 years behind bars for having oral sex with a 15-year-old girl; sex they both said was consensual. 

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

Police are searching for Doyle Kenney.  Kenney is 61 years old, six feet tall and weighs 165 pounds.  He was convicted of sexually assaulting two juveniles and he hasn‘t registered his address with the state.

If you have any information on his whereabouts, please call the Nevada Division of Parole and Probation.  Their fugitive unit is at 775-684-2644.  We‘ll be right back.

(COMMERCIAL BREAK)

FILAN:  Up next, a new bill in Oklahoma would have two-time sex offenders facing the death penalty.  The details after the headlines. 

(NEWS BREAK)

FILAN:  If the Oklahoma legislature has its way, two-time child molesters could soon find themselves on death row.  The State Senate just passed a bill that could impose the death penalty on repeat child molesters.  And the bill is now on a fast track through the State House, likely to become law in the next few weeks. 

But will laws like these hold up in court?  The states of Louisiana and Georgia already have similar laws, and in 2003, Louisiana did sentence a man to death for raping his 8-year-old stepdaughter.  But back in 1977, the Supreme Court held unconstitutional a Georgia law that permitted the execution of those convicted of raping adults. 

The court wrote we have concluded that a death sentence is grossly disproportionate and excessive punishment for the crime of rape and therefore is forbidden by the Eighth Amendment as cruel and unusual punishment. 

Dan talked with the state senator who hopes that this Supreme Court will agree with him and will allow Oklahoma to give the death penalty to child molesters.  Jay Paul Gumm sponsored this bill. 

(BEGIN VIDEOTAPE)

ABRAMS:  Let me first lay out for you just so you know what my position is generally on the death penalty in these issues.  I support the death penalty and on this program every day we highlight missing sex offenders in an effort to find people who haven‘t registered with the authorities.  With all of that in mind, I have real problems and concerns about the idea of saying that we‘re going to start executing people for anything less than murder.  What‘s your response to that? 

JAY PAUL GUMM (D), OKLAHOMA STATE SENATOR:  Well, I think that if you look at the Coker case and you look at Chief Justice Burger‘s dissent, he laid it out very clearly that this is a serious, serious crime and for a serious crime such as this, that the death penalty is an appropriate penalty and I think if you think about it, it‘s been 30 years since the Coker decision, eight of the nine justices are new, I think it‘s time to revisit that, especially with so much attention being given to those people who repeatedly prey on our children in this unspeakable way. 

We‘re not talking about giving the death penalty just to those first time offenders.  We‘re talking about habitual predators who are never going to stop preying on children and I think it‘s wise public policy and in the best interest of all the people of Oklahoma for us to get those folks away from our children forever, either through the death penalty or with life without parole.

ABRAMS:  Look, life without parole to me is a different issue.  I mean life without parole, I think you‘re going to get a lot of support when you‘re talking about repeat offenders, et cetera, but when you start talking about the death penalty, there‘s a nationwide effort it seems to use the death penalty less often. 

Let‘s even not have the whole debate about whether we should or shouldn‘t have it.  There is a movement nationwide saying the death penalty is being employed too often and now you‘re coming forward and saying no, actually, we need to start expanding it to use it for crimes that don‘t involve the killing of another. 

GUMM:  Well, let‘s think about this for a second, Dan.  First of all, we allow the death penalty for someone who has killed a body.  It seems to me appropriate penalty for someone who has killed a soul, because those victims of child molestation, they suffer lifelong effects from this terrible wrong that has been done to them...

ABRAMS:  Why not then...

(CROSSTALK)

ABRAMS:  But then why not apply it to a vicious assault of a child too?  Meaning, someone who comes in and beats up their little kid repeatedly.  That doesn‘t apply under your law.

GUMM:  It doesn‘t apply under our law.  There‘s something sacred about stealing innocence in this unspeakable way, and I think that‘s why it‘s justifiable to include the death penalty as a potential punishment. 

ABRAMS:  Let‘s talk about the issue of statutory rape.  Let‘s be clear as to defining it though.  My understanding is that child molestation under your proposed bill does not include any sort of statutory rape, correct?

GUMM:  That‘s correct. 

ABRAMS:  Right.  OK.  There‘s...

(CROSSTALK)

ABRAMS:  Sexual abuse includes, but is not limited to rape, incest,

and lewd or indecent acts or proposals made to a child, as defined by law,

by any person.

I mean indecent acts or proposals, so what, so if someone two-times, makes inappropriate comments to a child, they‘re going to end up on death row? 

GUMM:  You‘ve got to give the prosecutors and local judges the ability to make that determination...

ABRAMS:  Really? 

GUMM:  ... whether it is heinous enough to qualify for the death penalty. 

ABRAMS:  Really?  I mean I would think it‘s your responsibility to say I want to make sure that prosecutors don‘t have the opportunity to say someone who makes indecent comments, again probably should be put away, but the idea they‘re going to end up on death row for it.

GUMM:  Well, you‘ve got to trust prosecutors to a degree, to make informed decisions based on how bad and how aggravated the assault...

ABRAMS:  You could say that...

GUMM:  ... and the crime is.

ABRAMS:  ... for any crime.  You could say the death penalty should apply to all crimes and we‘ll just assume that the prosecutors won‘t pursue it.

GUMM:  Well if you take it to the extreme, but there‘s not going to be a prosecutor in the world that‘s going to be that irresponsible and I think you give them the ability and you give society the ability to protect children and if there‘s any group that deserves to take it to the limit, to protect them, it is our children, and you‘ve see so many times the damage that is done to children who have been victims of repeat child molesters.  This is an appropriate penalty for that kind of crime, and I feel confident that it will stand up under judicial review. 

ABRAMS:  Yes and my only concern is that at you get some overzealous prosecutors—again, I generally tend to defend them on this program, but you do get cases where you have overzealous prosecutors and I just would be concerned about a law that‘s this broad that allows them to pursue the death penalty in a case like this, but you responded to that.  Senator Jay Paul Gumm, thank you very much for taking the time to come on the program.  We appreciate it.

GUMM:  Thank you very much, Dan.  Appreciate it.

(END VIDEOTAPE)

FILAN:  Coming up, a Georgia teen is sentenced to 10 years for having consensual oral sex with a minor.  His attorney is trying to appeal his conviction and I say she‘s got a real tough road ahead of her.  She joins us next. 

And later, a second mistrial is declared in the John Gotti Jr. mob trial, but how come no one is talking about this real mob trial when everyone else is talking about “The Sopranos” season premiere this Sunday night.  It‘s my “Closing Argument”.

Your e-mails, send them to abramsreport@msnbc.com.  Remember to include your name and where you‘re writing from.  I‘ll respond at the end of the show.

(COMMERCIAL BREAK)

FILAN:  Coming up, a Georgia boy sentenced to 10 years in prison for having consensual oral sex with a girl.  His lawyer is trying to appeal and I say she‘s got a real tough road ahead of her.  The details up next.

(COMMERCIAL BREAK)

FILAN:  Genarlow Wilson was a star athlete in high school, a 3.2 GPA student, and a homecoming king, but now he‘s in prison, serving a 10-year sentence for having consensual oral sex with a fellow female student.  It all happened one New Year‘s Eve at a drunken party.  Genarlow and six others boys were charged with having sex with a student who claims she was raped. 

Genarlow said the sex was consensual and unlike all the other boys, refused to take a plea deal.  He went to trial and he was acquitted.  But Genarlow was also charged with aggravated child molestation, because a videotape recorded that night showed him having oral sex with another classmate, two years his junior.  She was 15. 

She was under the age of consent in Georgia, so it didn‘t matter if she agreed to the sex or not.  Jurors found Genarlow guilty of that charge.  But they didn‘t know that his conviction carried an automatic sentence of 10 years in prison.  And some of them were outraged when they found out.  Even the author of the law used in this case said it really was never meant to police sex between teenagers. 

Georgia legislators now are working hard to amend this law and Genarlow‘s attorney is working on his appeal.  She‘s trying to appeal his sentence, but he is still in prison. 

B.J. Bernstein is Genarlow Wilson‘s attorney handling his appeal in Georgia and also with us on the phone is one of the jurors who decided Genarlow‘s case.  She doesn‘t want to be identified, but she doesn‘t agree with her fellow jurors who have come out against Genarlow‘s sentence. 

B.J., thanks so much for being with us.  I‘m going to tell you... 

B.J. BERNSTEIN, HANDLING GENARLOW WILSON‘S APPEAL:  Hi, Susan.  Good to see you.

FILAN:  Thanks, B.J.  I‘m going to tell you up front, B.J., I think you‘ve got a real tough road ahead of you and let me tell you why.  The statute says what the statute says and it doesn‘t give discretion to the sentencing court.  Why do you think you might have a shot on appeal? 

BERNSTEIN:  Well, Susan, you‘re right that this is a tough road but I think I‘m on the right road and that‘s what‘s important here.  There is an equal protection constitutional violation, and on Monday actually of this week, the California Supreme Court decided a case on some of the similar grounds that have raised before the Georgia court of appeals...

FILAN:  But, B.J., California doesn‘t hold any weight in Georgia.

BERNSTEIN:  Except for one thing.  It does, you know courts will look to other courts when there are new issues in the law and the way that I‘ve put this to the court is new and has never been handled by a Georgia court.  And that‘s that under Georgia law, if the same girl had had intercourse with my client, it would have only been a misdemeanor, but because they had oral sex, it‘s a felony that carries 10 years in prison and what I‘ve argued to the court is there really is no rational basis to differentiate between intercourse, which my goodness, can result in a child‘s pregnancy, and oral sex, and so that‘s the difference here. 

FILAN:  And if you are successfully convincing this court that it‘s not fair that somebody that has intercourse gets a year on a misdemeanor and someone who has oral sex gets 10 years on a felony, what do you think this court is going to do for your client in this case?

BERNSTEIN:  Well obviously, we‘ve, as you noted, the road is tough because the lawyer ahead of me had not raised this issue yet.  I also had some other issues before the court, so we have those things going for us that we‘re waiting on the opinion and then as you just mentioned, I been down to the Georgia legislature just about every week this session, trying to get a law passed because I want to make sure that there are no more Genarlow Wilsons. 

FILAN:  Do you think Genarlow Wilson might really ever see the light of day as a result of what you‘re doing in the appellate court, or do you think he‘s a cooked goose under this statute? 

BERNSTEIN:  You know, I just can‘t accept—I‘ve got to tell you, of all the cases I‘ve handled in a long time, it‘s just unbelievable to me.  Your viewers may remember what happened to Marcus Dixon, who was famous about a year and a half ago for 10 years in prison and a miracle happened and he got out.  And I‘m just not giving up until we get this kid out.

FILAN:  This one gets to you personally, doesn‘t it B.J.?

BERNSTEIN:  Honestly, it really does Susan.  You know, and you and I have debated a lot and I used to be a prosecutor, I now work as a defense attorney, and the bottom line is even the authors of this law have said it was never meant for teen sex and...

FILAN:  B.J., let me bring in...

BERNSTEIN:  ... you know adult sexual predators, they got to go to jail.

FILAN:  Let me bring in that juror.  Madam juror, thanks very much for joining us.  Now we understand that you are outraged like your fellow jurors are when you learned that this conviction carries a 10-year sentence.  Can you tell us what your thoughts are on this? 

ANONYMOUS JUROR, JUROR ON GENARLOW WILSON‘S CASE (via phone):  Well first of all, it‘s just some of the jurors that feel that way, because I was in the room, there were plenty of us that did not agree with what some of the jurors were going on TV and saying and some of it is just not accurate.  I was there, I saw the tape and I think if the public was allowed to see the entire tape, that any kind of sympathy for Genarlow would be totally lost.

FILAN:  So let me just be clear.  Your position is it doesn‘t matter to you whether it‘s 10 years for oral sex or one year for intercourse.  What he did was wrong, broke the law and he deserves to be punished and he shut sit in prison.  Is that fair?

ANONYMOUS JUROR:  You cannot—he was offered a plea just like the rest of them, but he thought he was going to get out of it.  You know, when he was on the stand, he was quite arrogant about being, you know, crowned you know, king of the prom and so forth.  He didn‘t need to rape.  He didn‘t need to molest a child, but the bottom line is, is that that is the law, and they said you know did you ever think to ask, and he said why would I? 

(CROSSTALK)

ANONYMOUS JUROR:  Well, that‘s up to us as parents to teach our kids to ask. 

FILAN:  Do you think 10 years is fair for what he did? 

ANONYMOUS JUROR:  I think that he should have taken the plea...

FILAN:  OK.

ANONYMOUS JUROR:  ... and he would have gotten much less...

FILAN:  OK.  B.J...

ANONYMOUS JUROR:  ... but that was his choice.  He knew what he was up against.

FILAN:  Madam juror, thank you very much.  B.J., let me just ask you really quick—breaking news in that Atlanta socialite murder case that you talked to us about yesterday.  Can you bring us up-to-date on that?  What‘s happened in court today?

BERNSTEIN:  Susan, guilty.  Guilty.  Guilty.  You know we talked about this and we were worried about—and we talked yesterday in fact about the fact that the triggerman had tried to say he no longer was the triggerman.  It didn‘t matter.  This jury in four hours and 43 minutes convicted Sullivan.

FILAN:  So our switch—snitch witness who switched stories still carried the day.  B.J. Bernstein and our juror, thank you so much for taking the time to join us on the program. 

Coming up...

BERNSTEIN:  Thanks, Susan.

FILAN:  ... everyone is waiting for the season premiere of “The Sopranos” this weekend.  We just can‘t get enough of our favorite TV mob family.  Hey, but what about the real life trial of a member of one of the most notorious mob families here in New York, John Gotti Jr.  How come nobody is following his real life trial? 

And Dan says there‘s a double standard for male and female sexual predators and that‘s OK.  And I say, no way.  And from the look of your e-mails, it sounds like you agree with me on this one. 

(COMMERCIAL BREAK)

FILAN:  My “Closing Argument”—does this sound familiar? 

(MUSIC)

FILAN:  Yes, they‘re back, the mob crew from the Bada Bing Club.  “The Sopranos” return to HBO this Sunday night.  But while we‘re fascinated by the mob on cable TV, we seem indifferent to what‘s happening with the mob in real life.  While Tony Soprano is back with Carmela and plotting new crimes, John Gotti, Jr. has been on trial for racketeering and conspiracy. 

He could have gotten up to 30 years.  His lawyer offered a novel defense—Gotti Jr. not guilty because he left the mob behind him five years ago, and who knows, it may have worked.  Today Gotti‘s judge was forced to declare a mistrial.  The jury said it was completely deadlocked after less than two full days of deliberations. 

Prosecutors say they‘ll try Gotti again and whether Gotti is jailed or not, law enforcement has all but destroyed the mob.  Already families are active only in Chicago and New York.  There‘s at least 64 accused mobsters facing trial and made men are outing their fellow crooks to save their own skins.  The real mob has much bigger troubles than Tony and Carmela Soprano ever faced and without their ratings too.  So before you watched “The Sopranos,” focus for a moment on the real story, the decline of the mafia, a victory for law enforcement in the real world, away from cable TV.  And that‘s my “Closing Argument”. 

Up next, last night, I told Dan he was wrong about the way he looks at punishment for male versus female sexual predators.  It turns out a lot of you agree with me.  Your e-mails are up next. 

(COMMERCIAL BREAK)

FILAN:  I‘ve had my say, now it‘s time for “Your Rebuttal”.  Yesterday in my “Closing Argument” I took Dan on regarding the Debra Lafave case, saying that he‘s just plain wrong to argue that female sexual predators shouldn‘t be punished as seriously as males and a lot of you writing in agree with me. 

From Perinton, New York, Joe DePierro writes to Dan, “You stated that female sex offenders did not pose as much of a threat to society as male sex offenders.  I agree with you on that score.  However, you stated that she should not be punished in the same manner that a male should be punished.  In other words, we should have a double standard for male and female sex offenders.  To this I say hogwash.  Since when does the law differentiate between males and females when it comes to punishing them for a crime?”

And Jeff from San Francisco, “It‘s one thing to give men harder sentences than women in regard to child molestations.  It‘s another thing to give a woman a very light hand slap.  Don‘t you agree that a woman‘s punishment should be strong enough to prevent other women from doing the same thing?”

Of course, there are some of you that completely agree with Dan.  John from Atlanta, “When I was 14 years old, I believe I would have traded 10 years off my life to have a sexual relationship with someone looking like Debra Lafave.”

Well, John, that‘s why what she did was wrong, because 14-year-old boys can‘t say no and shouldn‘t have to be put in a position where they‘re tempted by their teachers. 

Send your e-mails to the abramsreportat --  one word—msnbc.com. 

We‘ll go through them and read them at the end of the show.

That does it for us.  Coming up next, “HARDBALL” with Chris Matthews.

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

END   

Copy: Content and programming copyright 2006 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2006 Voxant, Inc. ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and Voxant, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

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