updated 3/21/2006 11:24:46 AM ET 2006-03-21T16:24:46

Guest: Sol Wisenberg, Tim Susanin, Joseph Cavallo, Gloria Allred, Davidson Goldin, Joe Tacopina, Bo Dietl, Bill Stanton

DAN ABRAMS, HOST:  Coming up, lawyers for vice presidential aide “Scooter” Libby say finding no weapons of mass destruction in Iraq may have led to his inability to remember exactly what he said to whom about CIA agent Valerie Plame? 

Hi everyone.  First up on the docket, lawyers for “Scooter” Libby, the vice-president’s former chief of staff, say they needs tens of thousands more government documents to show that Libby was so focused on crucial issues like Iraq’s alleged weapons of mass destruction that he may not have remembered what he said to who about covert CIA agent Valerie Plame.  And that he had no motive to obstruct justice.

They now say they may call members of the White House inner circle as witnesses in his trial for allegedly lying about what he said.  They include the president’s chief of staff, Karl Rove, former Secretary of State Colin Powell.  Libby’s lawyers also suggest top State Department officials not Libby could be responsible for making Plame’s CIA affiliation public.

“HARDBALL” correspondent David Shuster has been covering this story since the beginning and joins us now from the White House.  So David, let me make sure I understand this.  They are saying they need tens of thousands of documents, government documents in order to show that “Scooter” Libby was so consumed with responding to everything that happened after no weapons of mass destruction were found and that may explain why he didn’t tell the grand jury the truth or was wrong about what he said in front of the grand jury?

DAVID SHUSTER, “HARDBALL” CORRESPONDENT:  Yes.  I mean the defense is twofold, Dan.  First of all they’re trying to show that there were other officials perhaps at the State Department who may have also been involved in talking about Valerie Plame, Joe Wilson and giving that information to reporters...

ABRAMS:  Why does that matter, though?  I mean why is that relevant to the question of whether he lied? 

SHUSTER:  Because they essentially want to show that this was in the media mix and that therefore perhaps maybe that might cast some doubt on the reporters that will testify as far as what their recollection is about their conversations with “Scooter” Libby.  Perhaps planning the idea that maybe Tim Russert mistakenly didn’t remember the conversation with “Scooter” Libby very well and was confusing it with a conversation with another reporter. 

Who knows?  But the other aspect of their argument is that Libby was so busy with this WMD issue, with trying to figure out what to do about Iraq, that he simply didn’t remember what was going on in July of 2003 during the key week.  But here’s what “Scooter” Libby is up against, Dan, and that is July 6, 2003, the Wilson op-ed comes out.  The prosecutors are then going to show July 7 “Scooter” Libby talked about Valerie Plame and Joe Wilson, had lunch with Ari Fleischer. 

Ari Fleischer will testify he never got taken out for lunch by “Scooter” Libby.  July 8, “Scooter” Libby talks about Plame and Wilson with Judy Miller.  July 8, “Scooter” Libby talks about Plame and Miller—Plame and Wilson with the White House counsel, asked about getting information from the CIA about Valerie Plame. 

July 10, “Scooter” Libby talks with Tim Russert.  July 11, “Scooter” Libby talks about Wilson and Plame with Karl Rove.  July 12, “Scooter” Libby talks with Vice President Cheney about how to handle media inquiries about Valerie Plame and Joe Wilson.  Then “Scooter” Libby on July 12 talks with Matt Cooper and he talks again with Judy Miller and then July the 14, that’s the day the Bob Novak column finally comes out. 

One of Novak’s sources was Karl Rove and again, “Scooter” Libby had a conversation with Karl just a few days before.  So, what prosecutors are going to do, by my count, there are seven different witnesses the prosecutors can call to the stand to say, here’s the conversation that I had with “Scooter” Libby on this particular day, and again, these seven witnesses will be part of the prosecution effort to show no, “Scooter” Libby actually was consumed by this issue and...

ABRAMS:  Wait.

SHUSTER:  ... and sure, he may have had other issues, but he was obsessed with what was going on. 

ABRAMS:  But let’s be clear.  Libby was specific in front of the grand jury, was he not, about the conversations that he had and what he said and what he was told?

SHUSTER:  Right.  And but what he’s trying—what it looks like he’s trying to do is to sort of go after the issue of intent.  As you know, he has to—in order to be convicted, the prosecution has to show that he intentionally made mistakes.  He intentionally wanted to lie in front of the grand jury in order to be convicted. 

What Libby is trying to do is perhaps suggest, OK, I made a few mistakes, sure, my testimony contradicts with Matt Cooper and Judy Miller and Tim Russert, but these are innocent mistakes.  After all, look at everything else I was dealing with, I couldn’t remember exactly what was going on in July 2003 and oh by the way Valerie Plame, Joe Wilson, this was a peripheral issue. 

What prosecutors can do is if they can show, if they can convince the jury that no, “Scooter” Libby was very much focused on Valerie Plame, then it helps to make the case that when he went to the grand jury, he intentionally lied, he intentionally tried to thwart the investigation. 

ABRAMS:  All right.  David, if you could stick around for a minute, because I want to bat this around a little bit with Tim Susanin, former federal prosecutor and Solomon Wisenberg, former federal prosecutor as well.  Thanks to both of you for coming on the program.  Appreciate it.

Sol, I got to tell you, I don’t quite get it.  I mean the notion—you know he could have said in front of the grand jury, I was really busy back then and you know what, I don’t quite remember what I said or what was said to me.  Instead, he recounted specific conversations about who told him what and now the defense is, oh, well you know what, I might have gotten all that wrong because I was just so busy with my other work? 

SOL WISENBERG, FORMER FEDERAL PROSECUTOR:  Well, Dan, you may not get it, but the whole point is, Libby is allowed to put it on as a defense and I think it’s very important, all the stuff that David Shuster just said.  The prosecutor is going to show this conversation, all these different conversations during that period in July, and the question is, is Libby allowed to show through a plethora of documents that he was working on a bunch of other things that consumed much more of his time and that by the way, even if he was dealing with Valerie Plame, every—nobody assumed that she had covert status.

ABRAMS:  When an ordinary person gets charged with these kinds of crimes, do they get to argue in front of the jury, I was really so busy with everything else that I might have gotten it wrong? 

WISENBERG:  Absolutely.  Look, again, as David pointed out, the issue is intent.  That’s the whole ball of wax here with respect to his testimony...

ABRAMS:  Yes.

WISENBERG:  ... before the grand jury, and he’s allowed to say, hey, I made an honest mistake.  I was dealing with a lot of other things...

ABRAMS:  He can say whatever he wants.  The question is whether he gets to take all these government documents, he gets to call all these witness was from Karl Rove to Colin Powell.  I mean the allegation, Tim, is that he’s effectively what they call trying to gray mail in the sense that he’s trying to call all these people in the hope that the government will drop the charges and say it just isn’t worth it. 

TIM SUSANIN, FORMER FEDERAL PROSECUTOR:  Well right.  This has—you know this could potentially be a devastating case for the administration.  Certainly Judge Walton is known for letting both sides put on their cases, so he will be allowed to get certain documents and he will be allowed to call these witnesses.  There’s nothing wrong with doing that, but the problem he really has, I see it as twofold, one, and this goes back to the list of other witnesses that David Shuster mentioned. 

When you look in the indictment, there are at least five or six upper level inner circle administration types who also were dealing with tons of other issues from WMD on down and they certainly remembered the specifics of conversations in June and July with Libby about Valerie Wilson.  Also if you go back and look in the indictment, you’ll see excerpts of Libby’s testimony before the grand jury and the problem with him now saying is I was so distracted in the summer of ‘03, is when he testified in front of the grand jury in ‘04 and gave interviews to the FBI in late ‘03 and he’s charged with false statements on both of those occasions, he gave very long answers that were very detailed in terms of why he said certain things to Russert, why he said certain things to Matt Cooper from “TIME” magazine and it’s going to be difficult now to put that genie back in the bottle. 

ABRAMS:  What about that, Sol?

WISENBERG:  Well, you can have a detailed recollection, you can remember specifics, and still be wrong.  We all know that memory plays tricks on you.  As a prosecutor, I was much more—I was much happier with a witness who tried to remember and remembered specifics than one who said I don’t recall, I don’t recall, I don’t recall.  So Tim is certainly right, it’s going to be an issue for him, but again, it doesn’t mean that he doesn’t—that he is not allowed to make his argument and to use any documents that support his argument. 

(CROSSTALK)

WISENBERG:  After all, he is a criminal defendant.

ABRAMS:  That’s true.  That’s true.  But even as a criminal defendant, you don’t get to demand everything that you want from whoever you want it, at any time.  That’s what the judge does.  The judge says, am I going to let you go there, am I going to let you get all this information, are you really going to need this for your defense and it does seem to me that we are starting to get to the point of overkill.

WISENBERG:  Well if it’s relevant, he can use it.  Now the judge can say this is cumulative, but what if his whole point is that look, I’m an important guy.  I have an incredible amount of documents. 

ABRAMS:  So it’s the important guy defense.  It’s the "I’m so important that another person who’s charged with the same crime might not be able to present this defense because he or she isn’t that important." 

WISENBERG:  Oh I think it’s much more likely that an ordinary person would be able to produce documents that they needed.  I think he’s in a worse position because of how high he was.  But my point was not just that he’s an important guy.  My point was that he wants to show all the documents that came across his desk.

ABRAMS:  This is from the motion from Libby.  Government officials including Mr. Libby viewed Ms. Plame’s identity as at most a peripheral issue.  To the extent that these officials were focused on Mr. Wilson, they were concerned with publicly disputing mistaken or misleading reports about his trip and his findings, not with where his wife worked.

I don’t—David Shuster, correct me if I’m wrong, I don’t think that there’s any dispute about that, right? 

SHUSTER:  No, there’s no dispute, but the one thing to remember, Dan, is when you go back and you look at the front page of “The New York Times” and “The Washington Post” and everything that was going on back here, the White House briefing room after the Novak column came out, there was an intense focus about was she covert, what happened with the White House leaking this information, should somebody be held responsible.  They’re going crazy over at the CIA over the fact that her cover was blown, whether there was damage or not, so this issue at least as far as the media inquiries to the White House, everybody here was consumed by it in July of 2003.

So that’s another problem that I think “Scooter” Libby is going to have to say that yes, this was just sort of a peripheral issue.  Well maybe for him, but for everybody else in the White House, everybody involved in media strategy and by the way, it’s the media strategy as far as these conversations with reporters everybody was consumed by this. 

ABRAMS:  The relevant events were far more complex than the government has suggested.  If the jury learns this background information, it will more easily appreciate how Mr. Libby may have forgotten or misremembered the snippets of conversation the government alleges were so memorable.  And I guess, Tim, that’s going to be the problem, is what David Shuster is explaining to us.

SUSANIN:  Yes, that’s right.  But again, they weren’t snippets of conversation.  He gave very detailed, very careful answers about these conversations with Russert, with Matt Cooper.  I think we have to remember here too, materiality of the false statements is an issue and if you think back to Fitzgerald’s press conference, he certainly did not limit in a total and complete way, his comments at his post indictment press conference to the false statements to the perjury. 

He did talk a little bit more broadly about the investigation because he wanted to put in context why these statements were material.  Why it was material to the investigation, what Libby knew about her status, how he learned it, when he learned it, who he told was important.  So what Fitzgerald is going to have to do here is realize that he still needs to provide that context to the jurors and as Judge Walton rules on the pretrial motions, Fitzgerald is going to have to draw a line where he gives enough context to set up his case, but prevent and hold off Libby’s effort to get, you know, thousands and thousands...

(CROSSTALK)

SUSANIN:  ... of extraneous facts and documents of witnesses before the jury potentially...

ABRAMS:  Sol, final word on this.

WISENBERG:  Well Tim is right, and that’s going to be a very hard thing for Fitzgerald to do because it doesn’t seem fair for him to be able to set a context and a criminal defendant with his liberty on the line not to be able to.

ABRAMS:  Yes. All right.  We shall receive.  I don’t—you know, I think that this—the defense team is doing everything that they should do.  I’m in no way criticizing the lawyers.  It just seems to me that they’re asking for too much. 

I don’t expect them to get everything that they’re asking for.  I don’t think that they expect that they’re going to get everything they’re asking for.  We shall see.  Tim Susanin, Sol Wisenberg, and David Shuster, thanks a lot. 

UNIDENTIFIED MALE:  Thanks, Dan.

UNIDENTIFIED MALE:  Thanks.

UNIDENTIFIED MALE:  You’re welcome, Dan.

ABRAMS:  Coming up, three teens convicted of sexually assaulting a teenage girl on a pool table.  They’re going to prison.  Now she’s suing them, but also their lawyer for things he did and said about her.  That lawyer joins us next.

And for the first time we hear from someone who was in the bar the night grad student Imette St. Guillen was murdered.  The bartender is speaking out.

Plus...

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Hey, where were you young lady. 

(SOUNDS)

UNIDENTIFIED FEMALE:  (INAUDIBLE) you’re not my dad. 

(END VIDEO CLIP)

ABRAMS:  What do you do if you see a little girl being abducted or what it seems to be abducted?  That’s what our friend Bill Stanton helped find out.  He joins us. 

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

(COMMERCIAL BREAK)

ABRAMS:  We’re back.  A 16-year-old girl said she had been raped by three classmates.  One of the boys was the son of a wealthy assistant sheriff.  There was even a videotape showing the alleged assault as the girl lay unconscious on a pool table.  The boys were seen penetrating her with objects including a pool cue, a bottle, even a lit cigarette. 

Defense attorneys pointed to inconsistencies in the girl’s testimony and said she was an aspiring porn star who consented to the sex.  Friends of the victim told a private investigator she was promiscuous, would have agreed to the sex acts.  The first trial ended in a deadlock with jurors leaning towards acquittal.

A second jury convicted the boys of sexual assault, but not rape and they were sentenced to six years in prison.  Well now almost four years later, the alleged victim is going after the three boys and the parents of one of them in a civil suit, but she’s also naming one of the boy’s attorneys and two defense investigators in her lawsuit.  She says they crossed the line.  They subjected her to years of harassment and intimidation. 

Joining me now is attorney Joseph Cavallo, who is named in the suit.  He represented one of the boys in the rape trial.  Also with me is victim’s rights attorney Gloria Allred.  Thanks to both of you for coming on the program.  Appreciate it.

All right, Mr. Cavallo, basically the essence of the lawsuit is that you went too far.  You allegedly stalked and followed her, trespassed on her property, went through her trash, divulged private information about her to students at school, improperly obtained confidential medical records, hid evidence of the sexual assault, tried to intimidate her, defamed her by spreading lies or other untruths.  Your response.

JOSEPH CAVALLO, SUED BY ALLEGED RAPE VICTIM FOR HARASSMENT:  Well first of all, all that is incorrect and it’s not true.  What we did was we aggressively defended Gregory Haidl as well as the other two boys. What we actually did was send investigators out to subpoena Jane Doe and subpoena her family.  They refused to accept subpoenas, therefore we had to hang around the property to hand subpoenas to these individuals.

We never went to any school and let anybody know that Jane Doe was this other person.  Everybody knew who Jane Doe was.  She wanted everybody to know who she was.  She loved the attention.  In fact, there were times when she was receiving pets—stuffed pets—stuffed animals and toys as a result of her being quote-unquote “the alleged victim in this case”, and enjoyed the receipt of those items.

We have evidence to prove that as well.  She’s just a little bit disgusted that she couldn’t hide her actions after this event took place, which was consistent with her actions before this event took place.  This is an attack on the criminal justice system.  How far can a criminal defense lawyer go?

ABRAMS:  Well, I’ll tell you...

(CROSSTALK)

ABRAMS:  I mean look, again...

(CROSSTALK)

ABRAMS:  ... I don’t know the facts well enough to know whether you’re right or she’s right, but I can tell that if a criminal defense lawyer makes comments outside a court or does things outside a court, they can be held accountable like anybody else. 

CAVALLO:  Well we’re not talking about comments anyway and I disagree with you on that note, but there were no...

ABRAMS:  Wait.  What do you disagree with me about, that a criminal defense attorney...

(CROSSTALK)

ABRAMS:  ... can’t be held responsible for the things they do or say outside a court. 

CAVALLO:  Absolutely not.  There’s an immunity level that attaches as well outside the courtroom, but it’s not the words that they’re talking about.  This is actions by investigators trying to discover information about Jane Doe, her family to help in the defense of these three boys.  That’s simply all it was.  It wasn’t anything else.  We can’t help that we discovered information about Jane Doe in the process of that investigation that disturbed her, her family and her lawyer.

ABRAMS:  But you can control what you do and you say, et cetera, with that information.

CAVALLO:  Do you control yourself when you’re defending somebody’s life?  We’re looking at 192 years...

(CROSSTALK)

CAVALLO:  ... for three teenage boys...

ABRAMS:  But you’re not suggesting...

(CROSSTALK)

CAVALLO:  ... for a 20-minute interlude.

(CROSSTALK)

ABRAMS:  You’re not suggesting no matter what the facts are, right, that it’s a criminal defense attorney’s obligation to go to whatever lengths to discredit the accuser.

CAVALLO:  Whatever lengths within the law.  That’s what I’m telling you...

ABRAMS:  So there’s no moral compass at all...

CAVALLO:  ... and that’s exactly what we did.

ABRAMS:  There’s no moral compass.

CAVALLO:  Where’s the moral compass?  The moral compass here is truth. 

That’s what the moral compass...

ABRAMS:  That’s fine.

CAVALLO:  That’s the limitation...

ABRAMS:  But...

CAVALLO:  ... and because—well let me just say this...

(CROSSTALK)

CAVALLO:  Because the prosecutor says it’s—the prosecutor charges a certain offense, does that mean it’s true?  Do we not as defense lawyers...

ABRAMS:  I think the jury found...

(CROSSTALK)

ABRAMS:  If I’m wrong, I think the jury found them guilty, right, of sexual assault?

CAVALLO:  Sexual assault, but not rape and in the first trial let me remind you that the jurors found...

ABRAMS:  Yes, but you...

(CROSSTALK)

ABRAMS:  ... you said it’s an attack on the justice system...

(CROSSTALK)

ABRAMS:  Wait.  Wait. 

CAVALLO:  Hold on a second.

ABRAMS:  You said it’s an attack on the justice system and now you’re citing the first trial was a hung jury.

CAVALLO:  Well it was a hung jury, 9-3 for not guilty an 11-1 for not guilty and the second trial, they couldn’t get rape convictions. 

ABRAMS:  Yes.

CAVALLO:  And you know why?  Let me tell you why, because none of the jurors in either trial believed Jane Doe.  They didn’t believe a word she said. 

ABRAMS:  They believed the videotape. 

CAVALLO:  Well I can’t go into that case—that situation because that case is up on appeal. 

ABRAMS:  Yes.  Well, all right. 

CAVALLO:  I can’t talk about the videotape. 

ABRAMS:  Gloria Allred, look, again, I don’t know the facts of this case well enough to be able to make a judgment, but I can tell you that I get disturbed by this notion that criminal defense attorneys can say whatever they want at anyone’s expense simply because—and then they can say you know what, I’m just defending my client. 

GLORIA ALLRED, VICTIM’S RIGHTS ATTORNEY:  Well I think you make a good point, Dan, and there is something called a litigation privilege and in fact, just within the last month, the California Supreme Court has handed down a case talking about it, but without getting into the technicalities of it, there are limits on what an attorney can say and do.  And for example, an attorney can’t break the law.  An attorney can’t trespass. 

An attorney can’t defame.  This is not to say that this particular attorney has done any of that.  We’ll have to see what the facts are...

ABRAMS:  Yes.

ALLRED:  ... but there are limits.  For example, you know, if an attorney improperly obtains the medical records of someone...

ABRAMS:  Right.  But he’s saying...

ALLRED:  ... not saying...

ABRAMS:  ... he’s saying he didn’t do it...

ALLRED:  ... that this attorney did that—improperly did that, you know, that would not be permitted under a litigation privilege. 

ABRAMS:  Right.  Let me ask you Mr. Cavallo, one of your investigators apparently called her a—quote—“whore”, is that true? 

CAVALLO:  That’s not true.  That’s not true.

ABRAMS:  That was one of the allegations though, right, that he referred to her in that way outside of court?

CAVALLO:  That’s not accurate. 

(CROSSTALK)

CAVALLO:  At least that I’m aware of.  I’m not aware of any of my investigators that I utilized in that case calling Jane Doe a whore, a slut, or any of the kind.

ABRAMS:  Do you accept responsibility for everything your investigators do? 

CAVALLO:  Only with what—only with regard to the direction that they took from me. 

ABRAMS:  This is Jane Doe on the witness stand during the case. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  All that I was and the woman I was becoming was savagely thrown away by three men.  Three men that brutally assaulted me, not only with their bodies, but with foreign objects also.

(END VIDEO CLIP)

ABRAMS:  Mr. Cavallo, so you will not comment on whether the videotape at all, because as you know, that was the strongest piece of evidence against your clients, right? 

CAVALLO:  Well, you know, as far as the two criminal trials are concerned.  Let me just say this, the—my heart does go out to Jane Doe and the three boys.  This was a very, very unfortunate set of circumstances.  There were four teenagers involved in this, it was a 20-minute incident that really ended up in a very, very bad situation for all concerned.  There were a lot of people hurt by this. 

You know my office represents civil cases as well.  We represent many, many victims and many different types of cases and have recovered millions of dollars for victims.  This is one of those cases that we just would not have taken, knowing the background of Jane Doe, knowing that the circumstances surrounding that evening, and knowing her subsequent conduct, this is just not one of those cases that should be the type of case that could end up resulting in the collapse of a criminal justice system. 

If you start attacking criminal lawyers for aggressively defending their clients, you’re going to have lawyers in their own mind, it’s going to be sort of a situation where lawyers are going to second guess what they do and you can’t do that when you’re defending somebody...

(CROSSTALK)

ALLRED:  You know...

CAVALLO:  ... charged with a crime, especially—go ahead.  I’m sorry.

ALLRED:  Dan, there are limits.  You know, again, what if a lawyer decides to go out and murder someone because they think that that person would be a terrible witness against their own client? 

(CROSSTALK)

ALLRED:  This is not this lawyer...

(CROSSTALK)

ALLRED:  ... but I’m saying there are limits...

ABRAMS:  All right...

ALLRED:  ... on what a lawyer...

ABRAMS:  Gloria, look, that’s an absurd example. 

CAVALLO:  That’s ridiculous.

ALLRED:  It’s not an absurd example. 

ABRAMS:  Yes, it is...

ALLRED:  It is an example to show...

ABRAMS:  Come on...

ALLRED:  ... that there is—there are limits on lawyers.

ABRAMS:  OK.

ALLRED:  They don’t have a license just to do anything...

ABRAMS:  Right, but see...

ALLRED:  ... on behalf of their client. 

ABRAMS:  My problem, Mr. Cavallo, is...

(CROSSTALK)

ABRAMS:  I don’t want to talk about a lawyer...

(CROSSTALK)

ABRAMS:  I don’t want to talk about a lawyer murdering someone.  You know, my problem is that I feel that criminal defense attorneys believe in most of these cases, or in many cases, that as part of their defense, they are—they’ve got carte blanche to say whatever they want publicly and they can say, hey, hey look I was just defending my client, no matter what effect it has. 

CAVALLO:  But I don’t know if that’s true.  I can’t agree with that.  There are limitations and some of those limitations have to be based on your own constitution and what you feel is right.  And that’s—whether that’s—so long as it’s within the confines of the law, then your limitation becomes your morals.  If you’re going outside of the confines of the law, then you’re—certainly the law itself is a limitation. 

ABRAMS:  All right.

CAVALLO:  In this case, nobody went outside of the confines of the law, and this just ended up simply being a victim and family and prosecutorial team that was just vehemently opposed to a zealous and aggressive defense.  That’s what it ended up being.

ABRAMS:  I should say we invited...

CAVALLO:  ... she was used as a puppet by the prosecution and unfortunately she’s being used as a puppet by her own lawyer right now.

ABRAMS:  All right.

ALLRED:  The jury convicted your client.  Doesn’t that matter to you? 

CAVALLO:  Yes.  Well it does.  He was convicted of sexual assault and not rape and I don’t want to... 

ALLRED:  Well...

(CROSSTALK)

ALLRED:  ... going to spend six years in prison. 

CAVALLO:  But I would have to say—Gloria, I would think you would be concerned about this issue as well because from what I understand I have the highest regard and respect for you and I compliment your work.  We do the same sort of work. 

However, you certainly have to be concerned about Mr. Lodmer’s approach in this case because even you are subject to the sort of lawsuit that I’m being involved in right now by Mr. Lodmer.  You have to be, you’re an aggressive lawyer.  Any aggressive lawyer...

ABRAMS:  All right.

CAVALLO:  ... in fact, any lawyer—do we now sue doctors because they tried too hard to save a life?

ABRAMS:  Mr. Cavallo, you get the final word on that.  Thank you very much for coming on the program.  Appreciate it.  Gloria Allred, thank you. 

ALLRED:  Thank you.

ABRAMS:  Coming up, for the first time the bartender on duty at the bar where Imette St. Guillen was last seen before she was found murdered is speaking out.  One prominent former cop Bo Dietl is slamming the police for leaking info on the case.  We’ll talk to him about why.

And a staged abduction on a busy street.  Does anyone help this little girl? 

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

Authorities are searching for Richard Belk.  He’s 40, five-seven, 185, convicted of lewd and lascivious with a minor under the age of 14, and hasn’t registered with the state.  If you’ve got any information on where he is, please contact the Bernalillo County Sheriff, 505-768-4100. 

(COMMERCIAL BREAK)

(NEWS BREAK)

(BEGIN VIDEO CLIP)

KEVIN O’DONNELL, DARRYL LITTLEJOHN’S ATTORNEY:  It’s his constitutional right not to testify.  Whether it be at the grand jury or at trial, and we haven’t even discussed whether he’s going to testify at trial, but he’s certainly not going to testify at the grand jury. 

(END VIDEO CLIP)

ABRAMS:  So the prime suspect in the murder of graduate student Imette St. Guillen is not going to testify in front of the grand jury.  Prosecutors began presenting evidence last week against bar bouncer Darryl Littlejohn.  We don’t know exactly what’s going on inside the secret grand jury room, but we do expect an indictment will likely be handed down very soon.  But now a potential witness, a bartender who was at the bar where Imette was last seen that night is breaking his silence and telling all, providing a glimpse into the police investigation and the man at the center of this case.  This bartender recounts the last time Imette was seen very simply in “New York” magazine as if there was nothing sinister about it.

Quote—“At around 4:00 a.m., the girl like any other patron at closing time was asked to leave and escorted out by the doorman.” 

Joining me now, “New York Sun” columnist Davidson Goldin and former NYPD detective , now a private investigator Bo Dietl, and criminal defense attorney Joe Tacopina, who is also a former homicide prosecutor.  Let me start with Davidson first.  What are you hearing about the status of the grand jury. 

DAVIDSON GOLDIN, “NEW YORK SUN” COLUMNIST:  Well as we thought about a week ago, we continue to think that in the next couple of days, I’ve been told Tuesday or Wednesday, the most likely days to hear about an indictment against Darryl Littlejohn.  Of course, Dan, as you know, he’s in custody already.  He’s locked up on Riker’s Island on this parole violation for violating his curfew, so he’s not going anywhere.

So if it does take a couple of more days, prosecutor sources say they’re not that concerned, but we do expect that tomorrow or Wednesday, we will hear about an indictment and accompanying that will be a press conference from the Brooklyn district attorney talking about the evidence they think they have against Mr. Littlejohn.

Here’s what the bartender at The Falls wrote in “New York” magazine.  It wasn’t until Wednesday that St. Guillen’s credit card was traced to The Falls.  The following Saturday I was working with B again, B, referring to Littlejohn.  We were in gallows mood, joking about the media clowns camped outside.  At one point I looked B directly in the eyes, and said in jest, the cops asked me for your phone number.  B just looked at us and shook his head and discussed throughout the rest of the evening, B and I exchanged several more glances, all of which culminated in the same gesture.

Joe Tacopina, is this going to hurt the prosecution that one of the key witnesses is writing an article, I presume making some money off it? 

JOE TACOPINA, CRIMINAL DEFENSE ATTORNEY:  Well you know Dan, it can cut both ways.  I mean the way the prosecution gets hurt here is if they actually intend on using this witness at trial and if he testified in the grand jury and that witness’ grand jury testimony was consistent with what’s in that article.  Well, they’ve just given early discovery to the defense.  They’ve just given over his statement to the defense, which is the last thing a prosecutor wants to do. 

So that could hurt the prosecution.  Certainly could hurt the prosecution if this witness sold his story, in other words, if he actually made money and profited off this...

ABRAMS:  Yes.

TACOPINA:  ... which is what we’re hearing.  That creates a motive, a bias, so yes, the prosecutors and I know Joe Hynes is a great prosecutor in the Brooklyn D.A.’s Office, you know I know he’s not happy about this.  On the other hand, the defense is probably going to say, hey, this is going to make it impossible for us to get a fair jury. 

ABRAMS:  We do know that “New York” magazine told us that they did pay him whatever the regular fee is for someone to write this kind of article.  The cops—he says the cops didn’t contact me until eight days after the murder.  The detective loaded me into an unmarked tan police car and brought me to the 75th Precinct.  I spent the next 10 hours in a concrete room.  At 10:00 p.m. they shuffled me to give a taped statement.  There was one uncomfortable moment.  I told the interrogator about B, meaning Littlejohn, and his partner’s exploits as U.S. marshals and the assistant D.A. just glared at me like I was the last kid in the family to hear about mom and dad’s divorce. 

Meaning that he’s referring to the fact that he didn’t know that they really hadn’t been U.S. marshals.  Bo, why did it take the police eight days to talk to him?

BO DIETL, FORMER NYPD DETECTIVE:  Well, you know, this investigation, we were all feeling it when we saw pictures of or pictures—when we heard the description of how this little girl was found in the 75 Precinct.  They have to do an investigation.  They want to make sure what they’re doing is right.  They don’t want to just lock somebody up.

They don’t want to just focus on one thing.  I talked to Joe Hynes as early as this afternoon, Joe is a personal friend of mine, and I said Joe, what’s taking you so long of indicting this guy.  He laughs at me.  He says Bo, we have time.  We have time.  We want to be very specific. 

The thing that aggravates me and I’m not blaming the police, Dan.  What’s aggravating me is the facts that came out in the newspapers about the cell tower, about them being able to find out a couple of yards away from where the phone was at that time, why are we giving this information?  Also, the fact about having blood on the plastic, why didn’t they just said they had DNA evidence. 

ABRAMS:  Who are you blaming, Bo? 

DIETL:  Well you know what?  I don’t know who leaked it, but you know what...

(CROSSTALK)

DIETL:  ... you know what gets me upset about this whole thing is that the other criminals, they watch this garbage on TV, this “CSI”, everybody knows about...

ABRAMS:  Bo...

DIETL:  ... how they find something...

ABRAMS:  It’s going to come out in the trial anyway. 

DIETL:  Right.  Exactly and if you want to go to the trial but you don’t have to release it to millions of people.  First of all, I knew about the cell phones, but the criminals all didn’t know about it.  Maybe the next criminal will leave his cell phone somewhere else because he doesn’t want to get caught.  What you do is comprising detectives.

These are tools of a detective when he interrogates them.  You got to count in New York County now that they want all interrogations with the detective, interrogation now, all interrogations, not confession, to be videotaped.  That’s garbage, because that’s the unique thing about detectives, homicide detectives, using ruses, talking to somebody, seeing the feelers that you got back and forth, acting tough, acting friendship with the guy. 

These are things, these are talents that the detectives use.  You take that away from them and you’re going to have these defense attorneys...

UNIDENTIFIED MALE:  Dan...

DIETL:  ... walking people out for murder every day.

ABRAMS:  Bo, is there an argument that this information though may have helped assure New Yorkers that there wasn’t this killer on the loose?

DIETL:  No, but how about, you had technical information that was given about his whereabouts.  How about you had DNA evidence that matched him up.  You don’t have to be so specific to people, because you know what happens now?  He was found also—I’ll give you another tip.  He was found with some alcohol rubs that were found in his apartment where he wiped things off.  He cut part of that poor girl’s hair off, we all heard about it, because there was DNA evidence.  The girl in Elmont, the one that was raped...

ABRAMS:  Yes.

DIETL:  ... and kidnapped...

ABRAMS:  Yes.

DIETL:  ... she was driven about 12 minutes would coincide the way this little creep’s house is in South—by South Jamaica.  All of a sudden she didn’t see his face, so we’re depending on DNA evidence to lock him in.  This young girl can’t pick him out of a lineup. 

So now this guy is getting smarter and smarter.  He gives the girl a shower after he finishes with her to take any DNA evidence off because of all this garbage on TV. 

UNIDENTIFIED MALE:  Yes.

DIETL:  Hey, I want to catch murderers.  I want to catch rapists.  I don’t want to give them an even playing field here.  I want to lock them up and send them to jail for their life.

ABRAMS:  David, let me ask you this.  Are we getting more information in this case from the police than we’ve gotten in more—most investigations? 

GOLDIN:  Well, I think you can turn that around a little bit.  Most investigations don’t play out this way.  There are 500 or so murders a year in New York City.  Most of them don’t get any attention at all.  This case as we’ve talked about over the last few weeks, Dan, really frightened people in New York because at first it looked like and I’ve said this before, it looked like a Mexico City style abduction with a girl, just a young woman, just disappearing off the streets.

And I think your point is a good one, that the police or whoever is leaking this information needed New Yorkers after—remember, Dan, the first week they had no information on the case, as this bartender writes in “New York” magazine, it took them a week to actually narrow in on Mr.  Littlejohn, so cops needed to get this information out there, if nothing else just to reassure New Yorkers, so yes...

ABRAMS:  Yes.

GOLDIN:  ... we’re hearing more about this case, but there’s also a lot more interest in this case than...

ABRAMS:  Joe, let me give you the final word on this.  Do you want to respond to Bo?  What he was saying about giving criminal defense attorneys he’s basically that your boys—you and your boys are going to be helped out.

TACOPINA:  Well know you know, Bo and I see eye to eye on a lot of stuff and that’s not really one of them.  I—you know I don’t think—that’s the collateral consequence of the society we now live in, Dan.  I mean cable news dominates.  People want to hear.  The society demands information.

The Internet, you know you can get minute-to-minute updates on cases, where it used to be you had to wait for the next day’s paper to see if anything new was happening.  That’s the society we live in.  I—you know there was O.J. a few years back who left a few shreds of DNA on a scene and that seemingly did not deter other people from leaving DNA, so you know I -it’s like saying the death penalty is a deterrent.  It’s really not.  I don’t think the fact that...

(CROSSTALK)

TACOPINA:  ... criminals you know could get sloppy is going to deter...

ABRAMS:  But I can understand why a former police officer like Bo is concerned about information getting out there...

TACOPINA:  Well but yes...

(CROSSTALK)

TACOPINA:  ... but who would have leaked it though, Dan?

(CROSSTALK)

ABRAMS:  Bo, real quickly, I got to tell you, I don’t agree with you that somehow it is so different...

DIETL:  Well...

ABRAMS:  ... if it comes out of the trial or it comes out now. 

DIETL:  Well, no, no, no...

ABRAMS:  I do think though you’re right...

DIETL:  Dan...

ABRAMS:  ... in the sense that if you give up the information about the cell phone stuff, it may confuse the investigators...

DIETL:  Dan...

ABRAMS:  ... about who really did it.

DIETL:  We’re missing the point here.  If I’m a detective and I need something out in the press, so I can get information to come back to me, for witnesses, all that, you do that.  I’m talking about specifics.  This was too specific for me to handle. 

That girl that was in Elmont that was kidnapped and raped had packing tape around her.  I mean this could be the same creep that did that one too.  My problem here is that I need people like this to go away forever and I need the evidence that the detectives develop and the techniques, how about videotaping every time they interrogate somebody...

ABRAMS:  I got to wrap it...

(CROSSTALK)

TACOPINA:  Dan, the...

ABRAMS:  David Goldin, Bo Dietl, and Joe Tacopina, thanks a lot. 

Appreciate it. 

UNIDENTIFIED MALE:  Bye.

ABRAMS:  Coming up, undercover video appears to show a little girl being abducted right off the street.  People continue to walk by, not saying a word.  “Today” show investigation coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, what do most people do if a child appears to be abducted right off the street?  Well undercover video shows that not many did anything.  Details after the break.

(COMMERCIAL BREAK)

ABRAMS:  A little girl is seen screaming for help on the street resisting a man trying to grab hold of her.  It appears she’s being abducted.  What do most people do?  Nothing.  NBC News put some at a New York suburb to the test. David Gregory has the story. 

(BEGIN VIDEOTAPE)

DAVID GREGORY, NBC NEWS CORRESPONDENT (voice-over):  Last time security specialist Bill Stanton put two parents to the test to see if what they taught their kids about the dangers of strangers would serve them in a real life situation.  Today he puts the public to the test.  With the help of 7-year-old Raquel, Bill staged an abduction to see if the public would take action.  Raquel’s mom Debra watched from a surveillance van as Raquel was approached by Bill.

UNIDENTIFIED MALE:  Hey, where were you young lady? 

(SOUNDS)

UNIDENTIFIED CHILD:  Somebody help me.  You’re not my dad.  You’re not my dad. 

GREGORY:  It’s unbelievable, but they did nothing...

UNIDENTIFIED CHILD:  Someone help me. 

GREGORY:  Bill and Raquel repeated this time after time. 

UNIDENTIFIED CHILD:  Please, someone help me.  You’re not my dad.

UNIDENTIFIED MALE:  (INAUDIBLE)

UNIDENTIFIED CHILD:  Please, someone help me.  You’re not my dad. 

Please.

GREGORY:  Still, no response. 

UNIDENTIFIED CHILD:  Hey, hey. 

UNIDENTIFIED FEMALE:  It’s frightening that nobody would help.

GREGORY:  One woman walked right by, believing someone else would take action.

(SOUNDS)

UNIDENTIFIED MALE:  (INAUDIBLE)

(SOUNDS)

UNIDENTIFIED MALE:  Do you hear me?  Don’t you ever go...

(SOUNDS)

UNIDENTIFIED CHILD:  (INAUDIBLE)

GREGORY:  And why didn’t she do anything?

UNIDENTIFIED FEMALE:  You think that someone else will take the blame, someone else will take the responsibility.

GREGORY:  A police sergeant on location to supervise was stunned. 

UNIDENTIFIED MALE:  I felt it was unbelievable that people just didn’t want to get involved, they’d look, they’d turn around, they’d see where the commotion, but they just kept on walking.  They didn’t want to get involved in my opinion.

GREGORY:  Bill would have been long gone with 7-year-old Raquel.  It took hours but two men finally listened to their instincts. 

UNIDENTIFIED CHILD:  Someone help me.  You’re not my dad.  Someone help me.  You’re not my dad.  Someone help me.  You’re not my dad.  Someone help me.  You’re not my dad.  Someone.  Someone help me. 

UNIDENTIFIED MALE:  (INAUDIBLE) TV, TV, TV, TV, TV.  Cops right there. 

Cops right there.  Good job.

UNIDENTIFIED MALE:  She was saying stop, someone help me, he’s not my dad, he’s not my dad and it was like—first I thought she was being a little disobedient, but then you weren’t saying nothing, so I was like we got to stop this guy. 

UNIDENTIFIED MALE:  I parked the car and I just ran over to get him. 

Yes, I was going to take him down, man.  Yes, it wasn’t going to happen. 

UNIDENTIFIED MALE:  I got to tell you all you guys were good, you spread out, I wasn’t getting away. 

UNIDENTIFIED MALE:  No, you wasn’t...

UNIDENTIFIED MALE:  You guys weren’t letting the bad guy go anywhere.

UNIDENTIFIED FEMALE:  That was amazing.  I actually had tears in my eyes, but everyone ran out and I was like oh my God, I couldn’t believe that they did what they did and you would expect more people to react that way.  I think just people are afraid to get involved. 

(END VIDEOTAPE)

ABRAMS:  That was NBC’s David Gregory reporting.  The man who almost got pummeled in that piece, private investigator Bill Stanton joins us now.  All right, Bill, look, is there—do you really believe that all these people were just walking by because they refused to get involved or was it because of what you were saying and what she was saying that made it sound like it was just you’re not my dad could make think this is her dad and she’s just in a fight with him. 

BILL STANTON, FORMER NYPD OFFICER:  Well regardless, Dan, you bring up a good point, but think about it, what would a child predator do?  That exact same cover, they’ll walk up as if they were the father, if they were a parent.  You know what I’m trying to stress here is better safe than sorry, but more importantly what these people were doing, you see these people on their cell phones with packages in their hands, going about their everyday life, you know we live in a fast-food society and they didn’t want to be bothered.  That was my impression. 

ABRAMS:  Is that right?  Because I’m just wondering whether we’re being a little too hard and I’m asking your opinion because you were there and I wasn’t, if we’re being too hard on the people who walked by in the sense that probably a lot of them thought that, you know, you were just a father who was fighting with his daughter? 

STANTON:  No, Dan, I don’t think I am being too hard.  I think you’re rather being easy.  I mean I would call this homeland security of the first degree.  Homeland security starts in the home, and who better to protect than our children.  I mean these people walking by and they looked and then they just kept on going.  That married couple, they stopped, they went into the car, and only when a police car stopped for a red light, they mention very casually, by the way, and this was about five, six minutes after we had already left the set.

ABRAMS:  Yes.  Did you train the little girl there on what to say and how to do it?

STANTON:  Yes.  Yes. I mean we—at first, the girl wasn’t just saying help, help.  Then—when that was going on nobody was looking.  Only when we added help, you’re not my dad, when people started to look, but I have to tip my hat to that—those two guys, they’re the ones that stepped up.  If you saw the tape, one guy was on the cell phone, the way they separated and surrounded me, I wasn’t getting away, no way, no how and that was good to see. 

ABRAMS:  But is that—I mean what if you would have had a weapon, for example? 

STANTON:  Well, I mean, we can go over what if scenarios all day. 

Different people need to step up in different ways. 

ABRAMS:  Yes.

STANTON:  In that scenario there were three guys.  In the background was an elderly lady, she was dialing 911.  The New Rochelle Police Department was cued in on that so they were disregarding the 911 calls in that area. 

ABRAMS:  Were you scared they were going to smack you? 

STANTON:  Oh, yes.  Yes, yes...

ABRAMS:  It looked like they were kind of big dudes.

STANTON:  They were, Danny.  I needed you as backup. 

(LAUGHTER)

ABRAMS:  Bill Stanton, good to see you, Bill. 

STANTON:  Thank you, sir.

ABRAMS:  Thanks.  Over the next few weeks, Bill will be traveling the country exposing crooks and con artists as part of a “Today” show segment on who you can trust.  For more information, check out our Web site, abramsreport.msnbc.com.

Coming up, I love a good glass of wine, but I can promise you when I buy a bottle, I care what it tastes like, not whether it has cute fuzzy animals on the label.  Well apparently I’m in the minority.  A new study, it’s my “Closing Argument”. 

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—when you’re shopping for a nice bottle of wine, you probably think about the price, where it’s from, maybe the type of grape and if you’re a real connoisseur, even the year.  Who knew that all a chateau really needs to boost sales is a sweet furry animal on the label.  A new ACNielsen report found that wines with animals on the label sell better, two and a half times better.  It seems that so-called critter labels appeal to those who don’t want to be intimidated by wine. 

All right, I hear that.  But I’d suggest that your salesperson in the wine shop is probably a better bet than relying on the cute and cuddly bird on the label.  Now if labels with a monkey or a bird or a kangaroo were actually cheaper, I’d say all right, sounds good to me, but the report found that so-called critter labels tend to be priced above the average for table wines, so that cute little fish is costing you. 

A vice-president at Nielsen Research is quoted as saying the study shows you don’t need to get bogged down into the details of wine pretension or snootiness to be a success if you have the right product.  It’s a nice analysis of how to sell the wine, but how about for the buyer?  Put snootiness and pretension aside, what about taste? 

Look, I had an adult film star on the show three weeks back who just released her own Italian red on the label, a silhouette of her naked body.  Sure it was visually appealing, but I may buy that wine because a great wine critic gave it a great review.  Now look, not everyone is an egghead like me reading wine reviews in our spare time, but there has got to be a better way to choose than on the cute factor. 

Kind of reminds me of how my sister used to trade baseball cards with me.  She didn’t care about batting averages or what positions they played.  She picked a card she wanted based on how cute the players were.  To each her own, but remember, you don’t have to drink baseball cards. 

Coming up, a lot of you still upset with Rusty Yates, husband of Andrea, who killed her five kids.  He got remarried this weekend.  Your e-mails are next.

(COMMERCIAL BREAK)

ABRAMS:  We’re back.  I’ve had my say, now it’s time for “Your Rebuttal”.  The ex-husband of Andrea Yates, Rusty remarried this weekend.  Her second trial for killing her children was supposed to start today, postponed.  Plenty of you upset with Rusty still and with me for congratulating him on moving on with his life.

Judy Hamilton in Upper Gwynedd, Pennsylvania, “So we shouldn’t criticize Rusty for marrying the same week as his wife’s retrial.  But to marry in the same church where his little babies were laid to rest, that’s just plain sick.”

Linda Roberts from Pasadena, “It’s a clear demonstration of the passive aggressive behavior that he’s exhibited all along.  Getting married the same week as she goes on trial?  Dan, I didn’t think you were so easily taken in.”

Good to see you’re a psychologist, Linda, from afar. 

But from Dallas, Mary Robinett writes, “I think if Rusty Yates wants to remarry, more power to him.  What difference does it make when he gets married.”

Abramsreport@msnbc.com, that’s where you send them. 

“HARDBALL” with Chris Matthews up next.  I’ll see you tomorrow.

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