updated 3/15/2006 2:03:51 PM ET 2006-03-15T19:03:51

Guests: James Gordon Meek, Thomas Connolly, Michael Greenberger, Maureen Santora, Brian Wice, Bethany McLean, Ron Fischetti, Davidson Goldin, Leslie Crocker Snyder, Gerald Shargel

DAN ABRAMS, HOST:  Coming up, a major blow to the government‘s case against the only man linked to 9/11 and tried in this country and it‘s all because of mistakes made by government lawyers. 

The program about justice starts now. 

Hi everyone.  First up on the docket, breaking news a crippling blow against the government‘s case against the only man tried in connection with the 9/11 attacks, at least in this country, thanks to what can only be described as some truly incredible meddling by a government attorney.  A judge just ruling that only half the government‘s case remains today.

Judge Leonie Brinkema furious that Transportation Security Administration attorney Carla Martin apparently improperly shared testimony with and in some cases apparently tried to shape testimony from witnesses for both the prosecution and the defense.  Judge Brinkema says Martin‘s conduct was—quote—“the most egregious violation of the court‘s rules on witnesses that she had seen.”

NBC‘s Pete Williams was in the courtroom. 

(BEGIN VIDEOTAPE)

PETE WILLIAMS, NBC NEWS CORRESPONDENT:  The judge has just taken away the ability of the government to present a huge part of its case.  The judge has just ruled that the government cannot put on any evidence that if Zacarias Moussaoui had not lied, if he had told the truth when he was arrested, that the government would have stepped aviation security and that could have prevented the 9/11 attacks.  The government is now barred by the judge from putting on any evidence, any witnesses to make that point. 

What she said today after hearing a day of witnesses talk about their improper contacts from a government lawyer in e-mails, she said that there had been a number of significant errors in this case and she said, I‘m quoting her now, “I don‘t think in the annals of criminal law I‘ve seen a prosecution with so many problems.”  So she has blocked that part of the case.  Now what‘s left? 

Well the government has basically made two points here.  They say if Moussaoui had told the truth when he was arrested some three weeks before the 9/11 attacks, the government claims two things would have happened.  First of all, government lawyers say the FBI and other investigative agencies would have gotten on the trail and there‘s a very good chance that they could have discovered the 9/11 plot and arrested the hijackers before they ever got to the airport.  That‘s part one of the case.  That still stands. 

But the second part of the case was that if the government had found out that there was a potential al Qaeda plot to use airplanes to fly into buildings, then surely they say the aviation part of the government, the FAA, the Transportation Security Administration would have stepped up security and the hijackers would never have gotten on to the planes or if they had gotten on to the planes they would not have had their knives.  They wouldn‘t have been able to carry out the hijackings.  That part of the case is gone. 

Now, in another dramatic bit of development here at the courthouse today the TSA lawyer who contacted these lawyers, who so egregiously violated the rules has indicated to the judge that she doesn‘t want to testify for at least the next few days.  She‘s gotten a lawyer.  We may never see her here in this courthouse.  We may never hear from her about how this happened. 

So at this point, as far as I know the jury will come back, they will begin to resume hearing evidence in the case.  But what the government by its own admissions has said is half of its case is now gone away, obviously this prosecution is in very serious trouble.

(END VIDEOTAPE)

ABRAMS:  Wow.  James Gordon Meek is a reporter with the “New York Daily News”.  He‘s been in Judge Brinkema‘s court today.  Thomas Connolly is a former federal prosecutor, who has made many appearances in Judge Brinkema‘s court and also knows the prosecutor in the case.  And Michael Greenberger is a professor at University of Maryland Law School and a former counsel to U.S. Attorney General‘s Office.  Thanks to all of you for coming on the program.  We appreciate it. 

All right.  Let me start with you Mr. Meek.  Are you surprised that the judge did not throw out the death penalty all together? 

JAMES GORDON MEEK, “NEW YORK DAILY NEWS”:  Hard to say in this case what would surprise me or not.  But, I mean, the typical day in the Moussaoui trial where it just can‘t get any weirder and the judge, you know, says to the prosecution, well you can bring your case forward, but you can‘t talk about aviation security. 

ABRAMS:  Yes.

MEEK:  And as Pete said that is a major part of their case.  I mean it is a devastating blow.  Now I guess they can appeal this and their appeal would go to the Fourth U.S. Circuit Court of Appeals, which as you know, Dan, is one of the most conservative courts in the land and has not always agreed with Judge Brinkema, so...

ABRAMS:  Mr. Connolly, do you expect that this is going to get overturned? 

THOMAS CONNOLLY, FORMER FEDERAL PROSECUTOR:  I don‘t think so.  I know you are dealing with the conservative court of appeals but she is well within the rights—her rights to use her discretion in these matters and the trouble here is having these witnesses tainted, there‘s no way to un-ring this bell.  So, I think she‘s on very solid legal grounds to have thrown this piece of the case out.  And, frankly, she didn‘t kill the death penalty phase of this but she certainly put it on life support. 

ABRAMS:  And the reason for that is, Professor Greenberger, if you view this case in two parts that the government was going to try to show that if they found out about the plot itself, they could have beefed up security at airports, that‘s no longer part of the case.  They can still show if they had somehow figured out who was behind it, they could have gone and arrested them, but that‘s going to be a lot harder to show that they would have been able to figure out exactly who was behind 9/11 that there was some general plot out there. 

PROF. MICHAEL GREENBERGER, UNIV. OF MARYLAND LAW SCHOOL:  That‘s exactly right.  And the other thing that must be remembered is they‘ve already in their opening statement told the jury that they are going to prove that with this information the Federal Aviation Administration may have been able to stop the plot and now the jury is not going to hear that evidence and they are going to wonder what was going on, and why this couldn‘t be presented. 

And also, the argument that he could have told them and they would have had a better investigation going, the defense lawyers are going to say, you know, they didn‘t even bother to go get a search warrant under FISA.  They certainly had enough evidence to pursue their investigation and they just didn‘t do it.  So, as Mr. Connolly said, their case now has been substantially hindered. 

ABRAMS:  All right, Mr. Connolly explain to those of us who are sitting on the outside here, how the heck this happens.  I mean this is the only person being tried in this country, whether you view him as directly involved in 9/11 or somehow preparing for some other attack, but basically in connection with 9/11, the only person in this country facing a trial and yet the government is completely blowing it.

CONNOLLY:  Well, I don‘t know how it happened.  It‘s a colossal err and I say it‘s err, maybe that‘s euphemistic.  I mean what happened here was the prosecution team got shot in the back by another lawyer from another agency in the government.  And I want to emphasize here as Judge Brinkema has, the prosecution team has acted honorably on this. 

When they learned of this horrible blunder, they immediately investigated and reported it to the judge.  But this was my fear always when I was a prosecutor, and trying cases where there was intra department cooperation necessitated by the prosecution, you‘re always afraid of the friendly fire of what some lawyer and what some other person...

ABRAMS:  But you can‘t be worried about something like this.  I mean this is first year law school stuff.

(CROSSTALK)

MEEK:  Dan, can I jump in here with one point though?  The prosecution admitted today that they never warned any of these seven witnesses who were coached by the homeland security lawyer who is now facing potential jail time.  They were never warned by the prosecution, these witnesses not to watch television, not to read newspapers and not to discuss with other potential witnesses or anybody their family, whoever, their co-workers this case.  They never warned them that the judge had issued an order in February. 

ABRAMS:  Whose responsibility would that be, Mr. Connolly?  Would that be the responsibility of the aviation lawyers in a lot of trouble or the federal prosecutor or both?

CONNOLLY:  I think both. 

UNIDENTIFIED MALE:  Yes.

CONNOLLY:  The fact of the matter, the reason she‘s a liaison on the team is in order to deal with those kinds of issues with the witnesses that come out of the FAA...

(CROSSTALK)

CONNOLLY:  ... frankly both. 

GREENBERGER:  I would just like to add I think that‘s absolutely right.  Today‘s hearing has adduced evidence not only of the aviation lawyer having problems in terms of dealing with the witnesses, but that the prosecutors themselves had not even gone so far as to tell the witnesses that the basic order...

(CROSSTALK)

GREENBERGER:  ... issued by the judge that they weren‘t to talk to each other.  And there were other problems out there.  But even if there were no problems I think Mr. Connolly has hit the nail on the head.  A lead prosecutor in a case like this has a responsibility for his or her troops and you don‘t go to bed at night without checking in with everybody...

ABRAMS:  Yes.

GREENBERGER:  ... and making sure that this is followed.  So even had the prosecutor just let this happen, it is a big black mark on the Justice Department. 

ABRAMS:  Right.  So, we‘re not going to find anyone who is going to say hey, come on, what the aviation attorney here did was OK, right, Professor? 

GREENBERGER:  I think that‘s absolutely right. 

ABRAMS:  Right.

GREENBERGER:  Look, it was—it went so far as the aviation lawyer pointing out the weaknesses in the government‘s case.

ABRAMS:  Well let me read from that, this is from an e-mail.  All of us aviation lawyers were stunned by the opening, referring to the federal prosecutor.  The opening has created a credibility gap that the defense can drive a truck through.  I mean what is she doing writing these e-mails during the case? 

MEEK:  Dan, you‘re touching on something very important, though, which we shouldn‘t lose sight of.  Aside from the fact that this aviation, this homeland security lawyer screwed up in a big way by coaching these witnesses, even before that happened, people, and the most sympathetic people in terms of a death sentence for Zacarias Moussaoui in the world are the 9/11 relatives and even they were saying to me yesterday the government was not making its case. 

It is making, as one relative said, a ludicrous claim that had—that Zacarias Moussaoui was the last best hope for the FBI to stop 9/11.  And they‘re saying look, you‘re ignoring everything we learned from the 9/11 Commission investigation, all the clues that were missed by the government, all the leads that weren‘t followed...

ABRAMS:  Yes.

MEEK:  ... the information that wasn‘t shared.  You‘re asking us to believe that this was the only chance that the government had to stop it and that all the other leads didn‘t mean anything. 

ABRAMS:  I don‘t care what you think about the death penalty, I don‘t care what you think about what the outcome of this case should be, this is an outrage.  The fact that the reason that the jurors are not going to be able to hear testimony in this case is because the prosecutors or the government attorneys screwed up.  That is pathetic. 

MEEK:  And the families say it‘s the latest example of the...

(CROSSTALK)

ABRAMS:  That‘s exactly what I want to talk about that right now.  All right, James Meek, Thomas Connolly, Michael Greenberger stay with us for a moment if you will. 

Maureen Santora‘s son Christopher was one of the firefighters who heroically died in the attack on the World Trade Center on September 11.  She joins us now.  Thank you very much for coming on the program.  We appreciate it.  First let me just get your reaction to the news. 

MAUREEN SANTORA, FIREFIGHTER SON DIED ON 9/11:  Well I have to say that before 9/11 the government had a lot of information that they did not act on.  They did not share information between agencies, and now that the court is in session, we are still continuing not to share information.  So very little has been learned since 9/11 in terms of communicating on a much higher level.  I—to say I‘m surprised, I really am surprised that we have not learned more and...

ABRAMS:  You‘ve got to be extremely frustrated.  I mean...

(CROSSTALK)

ABRAMS:  ... regardless of what—how do you—I mean I assume that you would like to see the death penalty for Moussaoui.

SANTORA:  Well I—you know, I feel that if the death penalty is going to be what Moussaoui, you know, tries to attain in his religion, that he will get, you know, his 72 virgins and he will be at peace then he definitely should not be given the death penalty.  And it really doesn‘t matter to me what his punishment is as long as he‘s punished.  My son will never be returned and all the victims will never be returned.  And what we need to do in this trial is to get information so that we become a wiser nation...

ABRAMS:  Yes.

SANTORA:  ... and we become less politically correct on every issue. 

ABRAMS:  But let me ask you specifically about today.  You know we‘ve just heard literally that half the case against Moussaoui is going to be thrown out based on mistakes made by the prosecutors.  I mean that‘s got to be frustrating.

SANTORA:  Well it‘s very frustrating.  But I have to say also listening and going down to the courthouse in Manhattan that my husband and I would leave every day and say if the government was basing their entire defense on the fact that Moussaoui lied and if he had not lied they would have gathered all this information we kept saying, you know, how ignorant do they think we all are and stupid as well that based upon one person he would have this much power to overturn the lack of communication in the government agencies.  His one opinion, his one voice is not going to...

ABRAMS:  Well...

SANTORA:  ... have made a big difference in any case. 

ABRAMS:  The point—but if they had gone and gotten the search warrant, for example, and seen everything that they had they might have been concerned about a general plot...

SANTORA:  Yes.

ABRAMS:  That would be the argument but now they can‘t present evidence about that plot...

SANTORA:  But now they can‘t present, that‘s correct. 

ABRAMS:  All right.

SANTORA:  So now you‘re, you know, you‘re...

ABRAMS:  Yes.

SANTORA:  ... down another peg, you know...

ABRAMS:  All right.  Maureen Santora, thanks a lot for taking the time.

SANTORA:  You‘re welcome.

ABRAMS:  We appreciate it.  Good luck to you. 

SANTORA:  Thank you very much. 

ABRAMS:  James Gordon Meek, Thomas Connolly, and Michael Greenberger, thank you.  Appreciate your time.

GREENBERGER:  You‘re welcome.

MEEK:  Thank you. 

ABRAMS:  Coming up, the government‘s key witness is done in the Enron trial.  Many trial watchers worried before Andrew Fastow testified that the prosecution‘s case was tanking.  So, what do they think now? 

And breaking news in the case of grad student Imette St. Guillen‘s murder, the grand jury is hearing evidence and we know more about what is happening behind those closed doors.  Plus, a behind-the-scenes look at how forensic experts are testing the all-important DNA in the case. 

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:  The star witness in the case against two former top Enron executives is off the witness stand.  The question, did he deliver?  Former Enron CFO Andrew Fastow told jurors he lied and that Jeffrey Skilling and Kenneth Lay joined him leading investors to believe Enron was a profitable and healthy company when they knew otherwise.  But Fastow came with a lot of baggage.  He‘s already pled guilty to conspiracy, is likely on his way to spending 10 years in prison. 

Skilling‘s attorney pressed him on that issue on cross-examination.  Daniel Petrocelli said you are a master of telling one person one thing and another person another.

Fastow:  Mr. Petrocelli, I‘m here to tell the truth.  I‘ve lied on many occasions.  I‘ve lied at Enron, but I‘m telling the truth here.

Defense attorneys kept pointing out that Fastow has no paper trail to support his testimony.  They were blasting him.  So, how are things going for prosecutors in this important case? 

Joining me now “Fortune” magazine senior writer Bethany McLean, who has been in court for this trial.  She‘s also the author of “The Smartest Guys in the Room: The Amazing Rise and Scandalous Fall of Enron”, Houston defense attorney Brian Wice who was also in court for Fastow‘s testimony, and white-collar criminal defense attorney Ron Fischetti.  Thanks to all of you for coming on the program.  Appreciate it.

All right, Brian let me start with you.  You‘ve been watching this testimony.  You are a seasoned lawyer.  How did Fastow do?  He‘s a key witness. 

BRIAN WICE, CRIMINAL DEFENSE ATTORNEY:  Well, Dan, he wasn‘t knocked out but he took the standing eight count a couple of times under rather cross, cross-examination from two pretty good lawyers, Dan Petrocelli and Mike Ramsey.  And though they were both able to make the point that Andy Fastow probably has a middle seat on the Amtrak train to hell for all that he did not only at Enron but for not intervening when his wife wound up doing a year of hard time.  Ultimately, Dan, they were unable to shake his testimony that this culture of corruption flourished in the 50th floor suites at Enron where Ken Lay and Jeff Skilling worked.

ABRAMS:  Petrocelli said you consider yourself a hero?  Fastow said, in the culture of corruption within the company that rewarded financial performance over economic value, I believe I was being a hero.  Were you consumed with insatiable greed?  I was extremely greedy.  I lost my moral compass and I did many things I regret.

Bethany, it sounds like at a lot of points Fastow was trying to be humble.  He was trying to say I did things wrong, I‘m just coming clean.  Did he come across as generally believable? 

BETHANY MCLEAN, “FORTUNE” MAGAZINE:  I think he did.  I think he came across as a credible witness.  It‘s funny you saw a couple of different Andy Fastows on the Stan.  He was extremely argumentative with Petrocelli on the first day.  By the third day he was almost—it was almost—on Monday almost meek in his demeanor toward Petrocelli, but I thought he came across as credible.  He‘s a well-spoken guy and he obviously understands this stuff. 

ABRAMS:  How important is he, Bethany?  I mean if the jurors don‘t believe Fastow, is the prosecution‘s case in a lot of trouble?

MCLEAN:  I don‘t necessarily think so.  A lot of people have come before Fastow who have shown the jurors that Enron, contrary to the defense‘s claim that this was a shining star of a company, that Enron was, in fact, a deeply troubled company.  The prosecution had already put together, I thought, a pretty compelling case before Fastow came along.  It‘s hard to know how the jury is reading Fastow.  Do they see a sleazy guy or do they see a sleazy guy who worked for a questionable company? 

ABRAMS:  This is Michael Ramsey on this program, the attorney who has been representing Kenneth Lay talking about how they view this and why Andrew Fastow is important. 

(BEGIN VIDEO CLIP)

MICHAEL RAMSEY, ATTORNEY FOR KEN LAY:  There are a series of converging events that caused the panic.  We were in a down market.  We were in—at the tail end of the bubble bursting.  We were—there were a lot of other events that made the market nervous.  But what put it over the edge, the catalyst was Wall Street beginning to smell Andrew Fastow and what he was up to. 

(END VIDEO CLIP)

ABRAMS:  I don‘t know.  Ron, I mean are the jurors really going to buy the notion that it‘s all Andrew Fastow; the CFO of this company was effectively able to snooker the people in charge?

RON FISCHETTI, CRIMINAL DEFENSE ATTORNEY:  Unfortunately, as a defense lawyer I don‘t think that‘s going to happen.  I think he did a decent job in testimony.  I think the defense attorneys may have made a mistake when they opened to the jury and they said they were going to destroy him.  He was the key witness.  They were going to show that everything that happened at Enron was the cause of Mr. Fastow. 

I don‘t think they showed that.  I mean when you have a witness on the stand who has this type of baggage, admits all these crimes, you can do one of two things.  You can either attack his story or you can attack the storyteller.  Here they attacked the storyteller.  There‘s no question they showed that he was a bad man.  He admitted all that.  But they didn‘t do much to punch holes in his story.  And there‘s a lot of corroborating evidence of Fastow, so I don‘t think that the prosecution is in trouble at all.

ABRAMS:  But Brian, I guess the argument goes that if he‘s not a trustworthy guy, if he‘s a guy who was engaging in all this fraud, why is he to be believed now when he says oh yes, Lay, Skilling, they knew what was going on? 

WICE:  Because ultimately, Dan, here‘s a man that understands that he‘s going away for 10 years and there‘s little if anything he can do about it except to ultimately tell the truth.  And you know I know the defense has made much of the fact that there‘s been this Rose Bowl parade of snitches, if you will, that have come to testify against the boss and the under boss. 

But obviously, Dan, you know and I know your viewers understand that the federal penitentiaries are full of defendants whose lawyers did great job of cross-examining snitches.  And ultimately like prosecutors are fond of saying they don‘t pick their witnesses.  The defendants do. 

ABRAMS:  Here‘s Michael Ramsey again talking about this issue. 

(BEGIN VIDEO CLIP)

RAMSEY:  What people don‘t understand is the very size of the Enron trading operation is one of the things that killed Enron because when they lost the faith of counter parties, because of the Fastow situation, they started demanding full collateral.  No company could have supported that. 

(END VIDEO CLIP)

ABRAMS:  Bethany, is that still the defense, is constantly because of the Fastow situation.  It‘s almost like the defense attorneys are taking the word Enron and switching it to Fastow. 

MCLEAN:  That‘s really true.  And the funny thing about that is that it had nothing to do with the crimes Andy Fastow committed in stealing money from Enron that contributed to this run on the bank at Enron.  There was a run on the bank but what happened is that Wall Street got very nervous about where Enron‘s earnings were coming from.  And that‘s the stuff that Skilling and Ken Lay knew about and signed off on.  So, it‘s a little bit odd to think that the money Andy Fastow stole, the 60 million, 40 million, whatever the number is, that didn‘t bring down Enron. 

ABRAMS:  Bethany, another witness is coming up in the next day or so who you know could also be referred to as the crucial witness in this case, right? 

MCLEAN:  Are you talking about Sherron Watkins? 

ABRAMS:  Yes. 

MCLEAN:  Well I‘m not sure she‘ll be such a crucial witness.  I think she will be pretty narrowly focused on Lay and what he knew and what she told him of the company‘s problems in August of 2001.  But I don‘t—I think the critical witness, the other critical witness was Dave Delainey, who came before Andy Fastow, and I think Ben Glisan, who was Enron‘s former treasurer, will also be a really big witness for the prosecution. 

ABRAMS:  Bethany McLean, good to see you.  Brian Wice and Ron Fischetti, thanks a lot. 

Coming up...

MCLEAN:  Thank you.

ABRAMS:  ... we now have new information about the grand jury hearing evidence against Darryl Littlejohn, the bouncer in connection with Imette St. Guillen‘s murder.  We will bring you that breaking news.  And we go inside the DNA lab to see how forensic scientists trace minute amounts of blood on ties used to bind Imette allegedly to that bouncer.

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

Authorities would like your help locating David Harris, 38, five-ten, 220, was convicted of sexual assault, has not registered his address with the state.  If you‘ve got any information on his whereabouts please contact the New Jersey State Police, 609-882-2000.  Be right back. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, prosecutors heading to a grand jury, trying to indict Darryl Littlejohn to that grad student, Imette St. Guillen‘s murder, first the headlines. 

(NEWS BREAK)

(BEGIN VIDEO CLIP)

COMMISSIONER RAYMOND KELLY, NEW YORK POLICE DEPT.:  Darryl Littlejohn‘s blood was found on plastic ties that were used to bind Imette‘s hands behind her back.  There are witnesses that put the victim in the company of Mr. Littlejohn when she left the bar that evening.  There is evidence, telephone evidence, telephone records that put the telephone that Mr. Littlejohn had in his possession in the vicinity, the immediate vicinity where the body was located and also a route to that location. 

(END VIDEO CLIP)

ABRAMS:  That is the crux of the case of the People of the State of New York v. Darryl Littlejohn.  And we‘ve got news about the grand jury.  Prosecutors in Brooklyn have started presenting evidence to a grand jury and are expected to ask that Darryl Littlejohn be indicted on first-degree murder charge for the brutal sexual assault and murder of criminal justice graduate student Imette St. Guillen. 

But there‘s more and we‘re joined now by “New York Sun” columnist Davidson Goldin, who has all the story on this, former New York State judge and former New York homicide prosecutor Leslie Crocker Snyder and New York criminal defense attorney Gerald Shargel joins us. 

All right, David, what do we know about the grand jury? 

DAVIDSON GOLDIN, “NEW YORK SUN” COLUMNIST:  The grand jury was impaneled yesterday, began meeting yesterday, but actually began hearing evidence on this case today.  It‘s going to take we‘re told quite some time, not until next week, maybe even not until Tuesday or Wednesday of next week is the indictment expected, although at this point, Dan, as we know, the indictment is a virtual certainty. 

ABRAMS:  And what—have the prosecutors said anything about how the case has been handled so far by the authorities?

GOLDIN:  In terms of...

ABRAMS:  In terms of how they‘ve been dealing with it publicly, in terms of statements that they‘ve made, et cetera.

GOLDIN:  Oh, certainly one issue that has risen with prosecutors has been at first prosecutors were not into this concept at all that Police Commissioner Ray Kelly would be announcing the suspect and announcing that the district attorney would be convening the grand juries.  After all technically, grand juries are supposed to be secret, but after some discussions involving various law enforcement officials, prosecutors realized that for the police department there was certainly a public relations issue that for the first week there were no suspects, then there was this leak of an unofficial suspect, Darryl Littlejohn, and cops wanted to get it out there officially that they thought Darryl Littlejohn was their guy.

ABRAMS:  Leslie, what‘s happening behind-the-scenes at the grand jury?

LESLIE CROCKER SNYDER, FORMER NY STATE JUDGE:   Well the first thing I think that‘s going to happen is the prosecutor and of course the judge—there is no judge in the grand jury as everyone knows.  The prosecutor is going to go in there and have to give a very strong charge to the grand jury to disregard anything they may have read or seen in the media because that‘s a real problem in this case. 

He‘s then going to give them other cautionary and introductory instructions and then they will begin three kinds of evidence.  Witnesses such as those at the bar, expert witnesses on DNA and blood evidence and any kind of documentary evidence such as records of cell sites to tie the defendant and his phone, his cell phone.  So that will be the presentation of evidence and then as an overview the prosecutor charges the grand jury on the law. 

In other words, instructs them on the law.  He will be asking murder one and murder two, any underlying felonies because this is a felony murder theory, and that would mean kidnapping...

ABRAMS:  Yes.

SNYDER:  ... rape, et cetera. 

ABRAMS:  Gerry, as a defense attorney you‘re kind of helpless at this point, right?

GERALD SHARGEL, CRIMINAL DEFENSE ATTORNEY:  Well I don‘t know if you‘re helpless.  I think that the lawyer who is representing the suspect is doing a pretty good job.  He was on Larry King last night.  He‘s doing everything he can to stem the flow of this publicity.  You know it‘s not an air tight case, Dan, and there are some pretty significant holes here. 

I have no doubt that an indictment will be returned.  Judge Wapner (ph) said you can indict a ham sandwich and there is kind of, you know, a lot of pressure to have this young man indicted. 

(CROSSTALK)

SHARGEL:  But there are issues here.  There is skin found under the victim‘s fingernails that do not match this putative defendant.  And I think there‘s a lot of argument there.  Does there seem to be compelling proof that he was somehow involved?  Yes, from what we have been told by the police department.  Is there compelling proof that he actually murdered the woman?  I‘m not so sure. 

ABRAMS:  But somehow involved...

(CROSSTALK)

ABRAMS:  ... could mean a murder charge anyway, right?

(CROSSTALK)

SHARGEL:  No, not necessarily.

ABRAMS:  No, not necessarily...

(CROSSTALK)

SHARGEL:  It could be an accessory after the fact.  It could be something less than murder in the first degree. 

(CROSSTALK)

SHARGEL:  It might be something less than murder in the second degree. 

SNYDER:  I think...

(CROSSTALK)

SNYDER:  I think the circumstantial evidence of his acting in concert, in other words, being an accessory on the murder is very strong.  What I don‘t think we know enough about and circumstantial evidence of course can be more powerful than direct evidence depending on the circumstances.  We don‘t really know what the link is to the rape.  Maybe there‘s reason to believe there was another person or other persons acting with him.  We don‘t know that. 

SHARGEL:  Well you know the problem here is that the police department and the district attorney‘s office are under enormous pressure to get an indictment, to identify the perpetrator and there may have been some mistakes and missteps along the way.  We heard so much about the DNA but we don‘t know a whole lot about the DNA.  What was the integrity of the sample.  DNA is air tight once you establish that you have the proper protocol to arrive at that point, but there are many issues that may exist here.

(CROSSTALK)

SNYDER:  But I imagine...

ABRAMS:  Hang on.  Let me just let David.  Go ahead.

GOLDIN:  Theoretically, of course, the grand jury could do anything.  Even—I talked to Kevin O‘Donnell yesterday, Mr. Littlejohn‘s lawyer, even he says he expects that undoubtedly that there will be a murder indictment here.  The other issue, Dan that we don‘t know much about and I think we‘re intentionally being kept in the dark about a little bit is what other evidence will be coming through. 

The DNA hit that led to this announcement that Mr. Littlejohn was a suspect just came in Sunday morning.  Other tests I‘m told are still pending.  That‘s part of why this will bleed into next week so to speak in terms of when we‘re actually going to hear something.

ABRAMS:  Leslie, can they bring in little john‘s criminal history in front of the grand jury? 

SNYDER:  Well I don‘t really know how unless there‘s some theory such as a Molino (ph) theory in terms of a prior bad act or similar bad act.  I don‘t know at this moment that they would have any ability to do that.  Although it may be relevant to bring out—I don‘t think as I think about it that it would be relevant. 

SHARGEL:  The answer is flatly no.  It‘s not admissible and...

SNYDER:  Well, you know, Gerry...

(CROSSTALK)

SNYDER:  Gerry, that‘s a defense point of view.  Nothing is necessarily flatly no because there are exceptions in the law.  I mean... 

SHARGEL:  Leslie, you know—Leslie, when was the last time you were in front of a grand jury and put Molino (ph) proof in front of the grand jury?

SNYDER:  Well it‘s very unlikely.  I agree with you totally. 

(CROSSTALK)

SNYDER:  It‘s very unlikely, but I mean is it possible that something about his being a parole violator could come out?  It shouldn‘t.  But it might be relevant in some way.  I don‘t know.  We don‘t know all the evidence.  We need to know a lot more.

SHARGEL:  I think the police don‘t know all the evidence...

SNYDER:  Not yet.

SHARGEL:  ... and I think that they‘re—I think they‘re rushing too quickly.  I think there‘s a rush to judgment.

ABRAMS:  Really, Gerry?  I mean or is that just sort of the...

SHARGEL:  No.  I mean look...

(CROSSTALK)

SHARGEL:  Hey, Dan. 

(CROSSTALK)

SHARGEL:  I don‘t represent the guy...

ABRAMS:  I know you don‘t, but...

(CROSSTALK)

SHARGEL:  I think that this is moving so quickly that it invites the possibility of mistakes.  I have enormous respect for the New York City Police Department, I have enormous respect for the commissioner.  But you can see how the palpable rush to establish Littlejohn as the perpetrator because the police department sees it...

ABRAMS:  Blood on the ties...

SHARGEL:  It‘s a public relations issue. 

ABRAMS:  When they find his blood on the ties that were used to bind her hands it‘s not nut-so, right, that they...

SHARGEL:  No, I‘m not suggesting it‘s nut-so, and—but I would be feeling more comfortable about it if I didn‘t hear and what do I know?  The evidence hasn‘t been presented to me.  But if I didn‘t hear or read in the newspapers that there was unidentified skin, there was a struggle and unidentified skin under the fingernails. 

SNYDER:  I don‘t think...

SHARGEL:  Now, is...

SNYDER:  I don‘t think they‘ve rushed at all.  I think they have been very careful.  What we don‘t know is the whole picture.  They‘ve tied Littlejohn to this murder.  What we don‘t know, as I said before, is whether there‘s another person or someone else, conceivably we‘re speculating, we don‘t know, could be involved in the rape.

SHARGEL:  Leslie, let me ask you a question.  He‘s in jail on a parole violation. 

SNYDER:  Right.

SHARGEL:  What is the rush to have an indictment on Tuesday?

SNYDER:  I don‘t think there is a rush.  I mean what Harrison (ph) said that it‘s taking a long time.  That‘s not a long time, but they are being careful.  They‘re presenting all the evidence that they have to date.  They—this evidence is—you raised certain issues that a defense attorney will of course attack in terms of DNA...

SHARGEL:  Right.

SNYDER:  ... at trial, but I‘m certain that the police department does not want to be smacked in the face with a black eye.  They‘ve done an excellent job.  And the commissioner himself pointed out it‘s not an air tight case...

ABRAMS:  Let me ask David a question.  This—the grand jury has been seated in Brooklyn.  He lives in Queens.  The abduction allegedly occurred in Manhattan.  Sure, her body was found in Brooklyn, but do we have any sense that they know this crime occurred in Brooklyn?

GOLDIN:  Well, that‘s where—as you said, that‘s where the body was found.  That‘s as close a sense as they have to anything. 

(CROSSTALK)

GOLDIN:  ... last week or so, a couple of weeks, and it‘s not even clear that the case at some point couldn‘t switch Burroughs...

(CROSSTALK)

ABRAMS:  Gerry, go ahead.

SHARGEL:  Under the criminal procedure law in New York, there is a presumption that the murder took place where the body is found.  In addition to that, both counties would have jurisdiction, New York County would have jurisdiction if it were later proven that the murder took place there.  But Brooklyn would have it as well because where the body is found...

(CROSSTALK)

SHARGEL:  ... jurisdiction to that county...

SNYDER:  But Gerry...

(CROSSTALK)

GOLDIN:  ... early on in this case there was a reluctance by Brooklyn prosecutors at one point apparently to hold on to the case when there wasn‘t much evidence. 

(CROSSTALK)

GOLDIN:  As the evidence pointed toward Mr. Littlejohn, Brooklyn prosecutors are more comfortable...

ABRAMS:  Real quick, Leslie...

(CROSSTALK)

SNYDER:  No, real quick.  Manhattan could also have jurisdiction and could have had jurisdiction because the kidnapping began there.  The crime began there. 

SHARGEL:  Well that‘s true...

(CROSSTALK)

SHARGEL:  That‘s true.

SNYDER:  And for some reason they apparently were willing to seed it to Brooklyn, which I think is...

ABRAMS:  I think we all agree this guy is in a lot of trouble. 

SHARGEL:  That‘s true...

ABRAMS:  We shall see what happens. 

SHARGEL:  That‘s true.

ABRAMS:  Davidson Goldin, Leslie Crocker Snyder, Gerry Shargel, hadn‘t seen you in a while, good to see you on the program. 

SHARGEL:  Nice to see you, Dan.

ABRAMS:  Appreciate it. 

SNYDER:  Good to see you.

ABRAMS:  Coming up, inside a DNA lab, how police tied Darryl Littlejohn‘s DNA to the plastic ties used to bind Imette St. Guillen. 

And later, why you might not want to go to bed tonight.  Not really.  But that‘s what some are saying.  And I could just hear a local news report why you might not want to go to bed tonight.  Well, anyway, you will understand what I‘m saying later.  It‘s my “Closing Argument”.

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:  Coming up, inside the DNA lab, how police tied Darryl Littlejohn‘s DNA to the plastic ties used to bind grad student Imette St.  Guillen, it‘s coming up. 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

KELLY:  This is very significant development.  When you talk about DNA here we‘re talking about the certainty of one in a trillion.  So it is a, you know, a very important piece of evidence for us. 

(END VIDEO CLIP)

ABRAMS:  They say it‘s a one in a trillion chance that blood found on plastic ties used to bind Imette St. Guillen‘s hands does belong to bouncer Darryl Littlejohn.  But just how did DNA experts determine that? 

MSNBC‘s Rita Cosby met up with forensics and DNA expert Larry Kobilinsky at John Jay College of criminal justice where Imette was a student and took us behind the scenes of the process of identifying this DNA.

(BEGIN VIDEOTAPE)

DR. LARRY KOBILINSKY, JOHN JAY COLLEGE OF CRIMINAL JUSTICE:  While a medical examiner observing this as a very important item of physical evidence will remove it from the body and package it, document it, and turn it over to the crime scene unit or the homicide investigators, this item has to get to the laboratory and the chain of custody is very critical and everything has to be documented.  So that is the first part of the analysis of an item like this. 

RITA COSBY, HOST, “RITA COSBY LIVE AND DIRECT”:  Once the initial tests are done, the sort of more superficial tests, it goes to a DNA machine like this? 

KOBILINSKY:  That‘s right, Rita.  First of all, what we need to do is take the specimen, the blood off of the tie.  We need to extract the DNA, which means to isolate the DNA from everything else.  We need to determine how much is there.  And then we need to amplify it, which means that at 13 different positions in the human genome we need to amplify and make billions of copies of the original target DNA.

What that means is if you have a very small amount of evidence, you can get a lot of information.  It then goes into this machine.  This is a genetic sequencer.  And it separates DNA based upon size.  And what happens is, is the DNA sample comes up a tube and then enters a fine capillary, and an electric charge pushes the molecules or pulls the molecules along this tube and there‘s a separation, smaller molecules coming out first.

COSBY:  So what you‘re saying is the DNA is physically traveling through here...

KOBILINSKY:  That is true...

COSBY:  ... and being read as it goes through. 

KOBILINSKY:  That is right.  It is hit by a laser beam.  The laser beam excites the molecules and then a camera detects the light being given off.  And as a result of this process, we end up with a printout of an individual‘s genetic profile.

COSBY:  Now, Doctor, this is an actual DNA readout? 

KOBILINSKY:  That‘s correct.  In other words, after the machine has analyzed all the fragments of DNA, it produces a printout such as this.  And what you see are the individual genes at each of the 13 sites.  There‘s a set here, a set here, and a set here, and on, various genetics of this individual.  What we do after we get this entire profile is make a comparison between the questioned sample, the blood on the tie, and the exemplar or the profile from the individual that is suspect. 

COSBY:  The fact that the New York police are now saying that there is a match, his blood was found, according to DNA, on the tie, is that a major development?  Is that a lot?

KOBILINSKY:  It‘s a blockbuster because this is what forensics is all about, getting a linkage between the suspect and the victim. 

COSBY:  Is that solid?  Is that a pretty solid thing to hold up in court? 

KOBILINSKY:  It is probably the most solid kind of evidence you could possibly have.  We know that the significance of this match is one in trillions, which means that it‘s essentially an absolute identification of his blood on the tie that bound Imette St. Guillen. 

COSBY:  What do you think this evidence means for Darryl Littlejohn? 

KOBILINSKY:  Rita, based upon this DNA match, I am absolutely convinced he will be arrested, indicted, and convicted for the homicide of Imette St. Guillen. 

(END VIDEOTAPE)

ABRAMS:  Rita Cosby, you can see her show tonight at 9:00 p.m. Eastern Time.  Some good stuff. 

Coming up, who knew how much trouble you could get into after you have already gone to sleep.  Well that‘s what some experts are saying.  I don‘t buy it, really.  I kind of do but not really.  It‘s my “Closing Argument”.

And yesterday one of our mob experts said if a real life mobster went to a psychiatrist like Tony Soprano he‘d get whacked.  Not so, says one of our viewers.  Citing evidence. 

And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing sex offenders before they strike.  We‘re in New Jersey.

Authorities are searching for David McBride, 43, five-ten, 190, was convicted of sexual assault, has not registered his address with the state.  If you‘ve got any information on his whereabouts, please contact the New Jersey State Police, 609-882-2000.  Be right back. 

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—a special report tonight on why you may want to think twice before going to sleep.  The dangers of sleep coming up.  Not really, but (INAUDIBLE) how I feel reading recent news reports that sleeping can be hazardous to our health and to those around us. 

Recent studies indicate the popular prescription sleeping pill Ambien, prescribed to 26.5 million people last year, is leading some to—quote—

“sleep eat or sleep drive.”  A scientific paper is being prepared that cites patients who take Ambien suffering from sleep munches, raiding the frig while still asleep, and then not remembering it later.

And some state toxicology laboratories count Ambien among the top 10 drugs found in impaired drivers, some saying they don‘t remember going out for a drive after taking an Ambien pill.  If you have to wonder whether in certain cases it‘s just oh honey, I know I‘m not supposed to be eating little Janie‘s cupcakes, but I don‘t remember doing it or officer, I have no idea why I ran into that tree.  I just—I don‘t remember it. 

I‘m not saying it‘s not true, but I certainly want to read those scientific papers closely.  And even those who don‘t take Ambien could be in danger in their beds tonight.  “Details” magazine reporting in its new issue on sexsomnia.  Quote—“Sexual behavior driven by abnormal arousal during deep sleep.”

Abnormal arousal.  Again, I am dubious, particularly when you read this from the article.  Quote—“It is thought to be rooted in genetics, but controllable factors like sleep deprivation, stress, drug or alcohol use can also play a role.”  Think in non-medical terms, that is also known as beer goggles, but I guess some will be relieved to hear there is a scientific explanation for sleeping during sexual activity. 

Look, sometimes this is all too serious.  Some men have been using it as a legal defense saying they don‘t remember sexually assaulting women, the sexsomnia defense.  While it‘s worked on occasion, many still look at it the way I do, skeptically.  There is a lot we still have to learn about sleep and the effects it may have before the I was sleeping when I did it defense becomes reliable.

Coming up, many of you writing in with questions about the murder of Imette St. Guillen, skeptical of witness reports and the chief suspect‘s story.  Stay with us. 

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say, now it‘s time for “Your Rebuttal”.  A lot of you still writing in about Imette St. Guillen‘s murder case and prosecutors hoping to get an indictment against the only suspect, Darryl Littlejohn this week  based on DNA evidence along with eyewitness accounts. 

Carol Hoch from Boston has a question.  “How could a homeless person across the street from The Falls bar supposedly hear the likely defendant tell Imette he would take her home unless he yelled it?  How can anyone hear someone talking in a normal voice across a New York street?”

From Indiana, Olivia Rokosz, “What I don‘t understand is where was Littlejohn after he escorted her out of the bar?  Bouncers usually have to stay after when the bar closes and help clean up.  Normally they kick everybody out of the bar before they start cleaning up.  Something does not add up here.” 

Well not all bouncers, Olivia, or security people have to clean up.  But, we also talked to a former member of the mob and to an author who has written about the mob to get their take on just how real “The Sopranos” is.

Seth James from Florida, “The mob experts claim that no mob boss had ever seen a psychiatrist before and that if one did he would get knocked off for doing so.  Frank Costello ran the Genovese crime syndicate in New York from the ‘30‘s to the late ‘50‘s and he was well known to have seen a psychiatrist for his depression and insomnia and no one whacked him for it.”  OK.

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

That does it for us tonight.  Coming up next, “HARDBALL” with Chris Matthews.  I‘ll see you tomorrow.

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

END   

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