updated 3/28/2006 10:16:02 AM ET 2006-03-28T15:16:02

Guests: Roger Cressey, Solomon Wisenberg, Steve Farese, Liz Daulton, Don Bosch, Michelle Suskauer, Dan Stein, Randel Johnson, Tom Jekel, Susan Filan

DAN ABRAMS, HOST:  Coming up, al Qaeda conspirator Zacarias Moussaoui testifies he was supposed to fly a plane into the White House on September 11 along with shoe bomber Richard Reid. 

The program about justice starts now. 

Al Qaeda member Zacarias Moussaoui takes the stand in his own defense over his lawyers‘ objections and says he was supposed to hijack a fifth plane on September 11 and fly it into the White House.  His co-pilot, shoe bomber Richard Reid. 

Hi everyone.  First up on the docket, bombshell testimony at Moussaoui‘s death penalty trial.  The alleged plan for that plane, number five, foiled according to Moussaoui when he was arrested in August of 2001 on immigration violations.  This in sharp contrast with his previous statements, where he said he wasn‘t part of the September 11 planning and instead was supposed to be part of a second wave of al Qaeda attacks. 

NBC News justice correspondent Pete Williams was in court and he joins us now.  Pete, before I ask you about the courtroom demeanor, et cetera, is this credible, his story? 

PETE WILLIAMS, NBC NEWS JUSTICE CORRESPONDENT:  Well, that‘s the question I think.  I guess there are two questions, what sort of impact will this have on the jury and that—we‘ll know soon.  But in terms of its credibility, that‘s a perfect question, Dan, because number one it goes against what he himself said when he pleaded guilty and secondly it‘s at odds with what in essence his superiors and al Qaeda told the 9-11 Commission according to its own report, both Khalid Sheikh Mohammed and Ramzi Binalshibh said that Moussaoui was not part of the 9-11 hijacking plot, that they didn‘t have much confidence in him. 

And in fact Moussaoui said today a couple of things.  Number one, he said it‘s OK to lie, because when you‘re in a war, deceit is war, he quoted Mohammed.  Although he did say he‘s not lying today, and secondly, he also said today that he did not, when he came here to the United States, know what the other parts of the plan were that there were only two targets, the World Trade Center and the White House.  He wasn‘t very clear on the details, and he also admitted that he was in a bit of a tussle with al Qaeda leadership, that he was in the plot, then out of it, then back into it.  So that‘s the big question, was he really in it or was he just a wannabe. 

ABRAMS:  Did—how did his behavior compare?  I mean we‘ve heard about these outbursts in court, in addition to...

WILLIAMS:  Yes.

ABRAMS:  ... regularly firing his lawyers, they‘ve had to throw him out of court again and again, but it seems today he was actually responding to questions, et cetera? 

WILLIAMS:  Yes, the old, you know, outbursts were gone.  The old Zacarias Moussaoui who was prone to histrionics, who had to be told to sit down by the judge, who sort of argued with everything, fought all the procedures, he was very docile today.  Now I‘m speculating here, but I think it—you know we believe that he‘s wearing one of those stun belts, and it may be that he was very worried about doing anything that would cause the marshals to press that button, understandably so, but for whatever reason you‘re right, he acted like any other witness.  He was very methodical, and it was the contrast between the extreme hatred and preparation to hijack planes on the one hand, and his very placid demeanor on the other. 

ABRAMS:  A stun belt?  They literally...

WILLIAMS:  Yes...

ABRAMS:  ... have something around his waist that they can push a button and... 

WILLIAMS:  Well as you know, these are sometimes used in the courts and we‘re not positive about this.  He‘s wearing a prison jumpsuit, you can‘t see what‘s under it, but some previous court documents have led us to speculate that he might be wearing one.  Again, I‘m not certain about this...

ABRAMS:  Right.

WILLIAMS:  ... but another piece of evidence that would suggest that he was is when the jury selection started and he would stand up and say he‘s al Qaeda, the judge would have him led out of the courtroom and each time he would put his hands on his head and say look I‘m not doing anything threatening, which suggests he was trying to say you know, don‘t zap me, I‘m behaving myself.  So I‘m not sure about that, but it‘s a possibility.

ABRAMS:  All right.  Pete Williams as always thanks a lot.  Appreciate it.

WILLIAMS:  Yes, sir...

ABRAMS:  Joining me now, NBC News terrorism analyst Roger Cressey and former federal prosecutor Solomon Wisenberg.  All right, Roger, let me just go to you on the question that I asked Pete and that is the credibility.  I mean this is an amazing tale he‘s telling, that he was going to be flying a fifth plane into the White House on September 11, with the only other person who‘s actually been caught in the act, Richard Reid, the shoe bomber.  Do you believe it? 

ROGER CRESSEY, NBC NEWS TERRORISM ANALYST:  It‘s difficult to believe anything he says beyond that he was a member of al Qaeda and that he did have some prior knowledge of what the September 11 plot was going to be.  The problem, Dan, is that he‘s portrayed himself as a whack job more often than not in court, so it‘s very difficult even when he takes the stand to determine what the truth is.

I think one of the key questions that federal prosecutors and law enforcement will ask, is they‘ll go to Richard Reid and say is there any credibility to what Moussaoui said, so it was very sharp testimony today and very important, but I‘m not sure whether or not it is credible. 

ABRAMS:  Before I read some of the quotes from court, Sol, it is crucial to the death penalty phase in this case, this testimony, right?  I mean this is a make or break issue? 

SOLOMON WISENBERG, FORMER FEDERAL PROSECUTOR:  It is.  It‘s not that the prosecution is out of the woods because of what he did today, but their case is strengthened considerably.  The defense had done a very good job of trying to show that even if he had told the truth, that the federal government was so screwed up, they never would have prevented what happened on September 11.  He‘s made that job more difficult by basically saying I was involved in the plot, I was supposed to fly a plane into the White House, and most importantly, I knew about the World Trade Center.  And by the way, I also told lies in order to make the operation go forward.  Now you have to believe the federal government was incredibly incompetent to have ignored that if he had told the truth about that, so that‘s why it‘s legally significant.

ABRAMS:  This is what Moussaoui said in court.  He was asked, you lied because you wanted to conceal that you were a member of al Qaeda?  That‘s correct.  You lied so the plan could go forward?  That‘s correct. 

He went on to say I had knowledge that the Twin Towers would be hit.  I didn‘t know the details.  One more question here.  You were in a rush to get through jet simulator training so you‘d be ready as a pilot to fly a fifth plane into the White House?  That is correct.

He went on to say my knowledge of the operation was very gradual.  I didn‘t know from the start.  I wasn‘t part of the operation at the beginning because I declined to be part of the operation.

Do we know, Roger Cressey, what he means by decline to be part of the operation? 

CRESSEY:  No, we don‘t.  It‘s unclear to me, but the most significant piece of what you just read, Dan, is that he had knowledge of the Twin Towers as a target.  So this really helps the prosecution when they say if that knowledge had become available to law enforcement, and if that knowledge had been shared, well in advance of 9-11, then conceivably steps could have been taken that might have, if not deterred, then possibly disrupted the plot.

ABRAMS:  Because, Sol, the evidence is overwhelming that his actions were mirroring those of the hijackers, in terms of where he was getting money, in terms of the flight training, in terms of items that he had in his home, et cetera.  But they were still having trouble with that crucial link, which is to say, he wasn‘t just an al Qaeda terrorist, he wasn‘t someone who would be able to do something in the future, but that he was actually involved in the planning of 9-11. 

WISENBERG:  Well, and he‘s given them what they needed there.  Again, the defense can still do a lot, Dan, there are credibility issues...

ABRAMS:  With him.  So the defense is going to be going after their own client, right?  They‘re going to be saying our client is lying. 

WISENBERG:  They can be saying our client is lying.  They can be saying our client is wacky.  More importantly, they can be saying there is all this mitigating evidence.  They can be saying the federal government was woefully inept.  But the prosecution now can say is a matter of straight legal evidence he has admitted he had knowledge of the World Trade Center that he lied in order to let the operation go forward.  That‘s an element that they needed in order to even...

ABRAMS:  Yes.

WISENBERG:  ... get any further along toward a death penalty. 

ABRAMS:  Roger Cressey and Sol Wisenberg, thanks a lot.  Appreciate it.

UNIDENTIFIED MALE:  My pleasure.

UNIDENTIFIED MALE:  Thanks, Dan.

ABRAMS:  Coming up, the wife of a prominent preacher in court, arraigned for killing her husband in their home.  She allegedly told police that she did it.  The question now, why?  We talk to her attorney next. 

And Congress takes up the question of what to do about illegal immigrants as hundreds of thousands take to the streets in protest.  The president wants to allow many to become legal.  Many Republicans on the Hill want to make them felons.  We debate. 

Plus, this 18-year-old facing up to eight years in prison for having sex with a 15-year-old, even though he said it was consensual. 

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) 

(BEGIN VIDEO CLIP)

HON. BOB GRAY, JUDGE PRESIDING OVER MARY WINKLER‘S ARRAIGNMENT: 

According to agents of the Alabama Bureau of Investigation, Mary Winkler confessed to planning the murder of her husband Matthew Winkler, shooting him on March 22, 2006, and leaving Selmer with her three daughters.  That is the sum and substance of the complaint, Ms. Winkler. 

(END VIDEO CLIP)

ABRAMS:  All right.  So she‘s allegedly confessed to killing her husband, but why did she do it?  That‘s what everyone is asking.  Mary Winkler made her first court appearance today, just hours before her husband‘s wake was scheduled to begin and the day before he‘ll be laid to rest.  The body of Matthew Winkler, a prominent minister in Selmer, Tennessee, was found Wednesday in his home.  He had been shot to death. 

I‘m joined now by Steve Farese, the attorney for Mary Winkler.  Thanks a lot for coming on the program.  We appreciate it.  You all did not address the issue of bail today, it is going to be addressed later in the week.  Are you going to ask that she be released on bail? 

STEVE FARESE, ATTORNEY FOR MARY WINKLER:  We haven‘t decided on that right at this moment.  The reason that we declined to address that issue today is out of respect for the Winkler family.  It‘s our understanding that the funeral is tomorrow and we did not want this in any way to take away from that. 

ABRAMS:  I assume that the Winkler family has not reached out to you in any way, right? 

FARESE:  Well they have not, but I wouldn‘t expect them to.  This has been a personal tragedy for them, they are grieving and we want to respect that process. 

ABRAMS:  There were eight women who were in court today who it appears were, you know, fellow parishioners in the church.  Do you have any sense of why they all came to court?  It seemed in support of your client.

FARESE:  Well, I would think if it was in support of my client, it‘s because they‘re Christians and part of their faith is forgiveness. 

ABRAMS:  You‘ve said that this shooting was unintentional and that the couple was in a—quote—“dangerous situation”.  When you say unintentional, does that mean not premeditated? 

FARESE:  Well first of all I didn‘t say that.  I said hypothetically it could have been a situation that was dangerous and the shooting could have been accidental, that‘s not said in fact. 

ABRAMS:  The police have reported that the motive was not infidelity and again there has been this alleged confession to the police.  Is that accurate? 

FARESE:  Well, what the police have done is given us a negative.  They‘ve said it‘s not infidelity.  What does that mean?  So they‘ve really not commented on any motive.  I‘m not aware of any motive.  If I was aware of any motive, I certainly wouldn‘t be discussing it now. 

ABRAMS:  So when you say you‘re not aware of any motive, your client has not said to you, I did it and here‘s why I did it? 

FARESE:  Well, if my client said anything to me that would remain between me and my client.  I would not be making that public. 

ABRAMS:  Will you concede that she did make some sort of confession to the police?

FARESE:  I will concede nothing. 

ABRAMS:  Like any good lawyer.  Is there anything else you can tell us?  Because the bottom line is it seems that there‘s an opportunity here to garner some level of sympathy for your client, because people seem for some reason open to hearing why she might have done this, why, what seemed like the perfect couple, may not have been so perfect.  Do you want to share anything that might lead people to understand your client a little better? 

FARESE:  My job is not to garner sympathy.  My job is to represent my client to the best of my ability, based upon my expertise and knowledge of the situation such as this.  I‘m not going to change that.  That has been very successful for me.  And I intend to handle this as any other case. 

ABRAMS:  If I ask you about postpartum depression, anything about the children, et cetera, you‘re not going to talk about it? 

FARESE:  I‘m not going to talk about it.  Everything is in play at this time. 

ABRAMS:  Understood.  Steve Farese, thank you very much for taking the time.  I know it‘s been a busy day for you.  Appreciate it. 

FARESE:  Thank you, sir. 

ABRAMS:  Well, you can see Mr. Farese didn‘t really want to get into a lot of the issues we were talking about.  At least, he didn‘t seem to want to answer the questions directly.  He was more forthcoming yesterday in an interview with “Dateline NBC”. 

(BEGIN VIDEO CLIP)

FARESE:  She has a child that‘s only 1 year old and I‘m concerned about possibilities of things, such as postpartum, you know, depression.  And also she‘s had a lot of trouble lately sleeping for any extended period of time, so that‘s something else I would like to explore. 

(END VIDEO CLIP)

ABRAMS:  Joining me now is Liz Daulton, a reporter with WREC Radio, who was in the courtroom.  All right.  Thanks a lot for coming on the program.  Appreciate it.

He‘s not really telling us what the defense is going to be, but there‘s got to be a sense in the community there already as to what might have been going on behind closed doors in this family. 

LIZ DAULTON, WREC RADIO REPORTER (via phone):  I‘ll tell you what, everybody is pretty tight lipped.  I mean, mum is the word around here.  I‘m not hearing much from anyone.  I know that during Sunday services an elder of the Church of Christ where Mr. Winkler was a preacher, they asked everyone not to speak to the media and not to speculate. 

ABRAMS:  Well here‘s what he said to “Dateline” about their marriage. 

(BEGIN VIDEO CLIP)

FARESE:  I got the impression that they had had a happy marriage, but you know marriages are strange things on the outside, publicly.  Many people seem to be happy when in truth maybe they‘re not. 

(END VIDEO CLIP)

ABRAMS:  Are you getting the sense, Liz that it‘s going to be that sort of defense that there was something going on that led her to do this? 

DAULTON:  I feel like they drop little hints and then they kind of take it back.  It‘s like there‘s something going on there, but we can‘t comment on it.  Hypothetically, there‘s a dangerous situation.  We can‘t comment on it.  Hypothetically, there may be some postpartum depression, but we can‘t comment on that.  I feel like it‘s kind of an up in the air thing.  They‘re just dropping hints and maybe they‘re creating their case as they go along. 

ABRAMS:  Is there sympathy in the community for her?  I mean she does look so young and at least the people I talk to are all asking, well, why would she have done this, why would she have done this, and it‘s not the sort of question people generally ask when someone has shot someone. 

DAULTON:  It doesn‘t even seem so much as sympathy as complete and total shock.  I think everyone that I‘ve spoken to in the community from the church elders to the church congregation to just witnesses on the street, just seems like it doesn‘t happen in Selmer, Tennessee.  Things like this don‘t happen.

ABRAMS:  All right.  If you could stick around for a minute.  Joining me now, criminal defense attorneys Don Bosch and Michelle Suskauer.  Thanks a lot for coming on the program.  Appreciate it.

All right, Mr. Bosch...

(CROSSTALK)

ABRAMS:  ... let me start with you.  You know it seems that the attorney, Mr. Farese, is intentionally being vague, but I think he is doing what Liz just said, which is that he‘ll say, well, you know, maybe it was unintentional, or maybe there was something else going on the family and then I ask him about it and he says well, I‘m just saying that hypothetically. 

DON BOSCH, CRIMINAL DEFENSE ATTORNEY:  Well what you might want to remember is, is he‘s probably been involved in this case now for less than 72 hours, and so he really is working through his checklist as a defense lawyer of what the possible defenses may be, and he may be floating certain things, maybe suggesting certain things, because as you can imagine, this is going to be a relatively small jury pool, even if it goes to a surrounding or another county, everybody is going to have heard of this case, and he may start through his mental checklist, and may either by design or through just sort of initial statements start suggesting what might be a defense in this case. 

ABRAMS:  Betty Wilkerson was the church secretary.  Here‘s what she said. 

(BEGIN VIDEO CLIP)

BETTY WILKERSON, CHURCH SECRETARY:  There‘s got to be some deep dark reason that this has happened, and I don‘t know what it is.  And I think that‘s the question on everybody‘s mind right now. 

(END VIDEO CLIP)

ABRAMS:  Michelle, as a defense attorney, you‘ve got to appreciate the fact that so many people are saying there‘s got to be a reason, there‘s got to be an explanation, because in many of these cases, people say, I don‘t care what the reason is, person shot the person. 

MICHELLE SUSKAUER, CRIMINAL DEFENSE ATTORNEY:  Right.  It‘s sort of that they‘re giving her an excuse already, because this is so out of character.  What I thought was interesting was the statement from her lawyer that she hasn‘t been sleeping lately, that seems to me like maybe he‘s going to be throwing out some sort of—and I don‘t know at this point, but throwing out some sort of you know drug defense, maybe she was on some kind of medication which caused her to act out of character, so that seems like that may be there.  But he also said you know, no one knows what really guess on in somebody‘s marriage, and there could be some abuse that was going on, abuse to her, abuse to the children, so there‘s so many unanswered questions right now. 

ABRAMS:  Here‘s again her attorney when he was a bit more forthcoming on “Dateline NBC”. 

(BEGIN VIDEO CLIP)

FARESE:  She cried.  Did I specifically ask are you crying for yourself or are you crying for your husband?  I didn‘t ask her that question.  She appeared to be remorseful about the situation. 

(END VIDEO CLIP)

ABRAMS:  But Don, you‘ve got to be able to use her appearance to your advantage as a defense attorney.  I mean, she does look so meek and so innocent, it doesn‘t make her innocent and it doesn‘t make her meek, but...

BOSCH:  Oh absolutely.  Sympathy will—irrespective of what ultimately the defense is, sympathy will play a large part in the defense structure of their proof and whether that‘s at a jury trial or whether that‘s even in a negotiation with a prosecuting attorney for some sort of lesser verdict, if that ultimately is appropriate or lesser charge, remains to be seen, but as you can imagine, juries are not going to look at this woman and think that she‘s at least initially a cold blooded murderer. 

ABRAMS:  Liz, three kids here, now with no parents, one parent is dead, the other one is in prison, and in shackles as you saw.  Do we know what‘s happened to the children? 

DAULTON:  The last report that I heard was that the father of Matthew Winkler, who is also a preacher himself, has taken them into custody.  It‘s not sure what exactly is going to happen to them.  I‘m not sure if the kids are being involved.  I know there‘s been some speculation as to whether they were in the house and just how much they saw.  So as of right now, I believe that Preacher Winkler has them. 

ABRAMS:  So you don‘t know if they were actually in the house or not when this happened? 

DAULTON:  We heard a confirmed report that they were in the house, but there was no speculation on how much they saw.  They could have been in another room.  They could have been in the same room, so there‘s a lot of leeway right there. 

ABRAMS:  Michelle, does that matter in terms of the defense? 

SUSKAUER:  Oh, I think it really does matter.  Certainly if you have children that are in the room who may have witnessed this or who may be a part of the situation that caused her to act the way that she did...

UNIDENTIFIED MALE:  Yes.

SUSKAUER:  ... so out of character apparently, I think that‘s significant, and I think that the forensics that are going to come back I think also are significant as well. 

ABRAMS:  Why the forensics important?  She‘s admitting she did it? 

SUSKAUER:  Well, it‘s going to be—it‘s—she did admit that she did it.  Well—and I guess her lawyer is not conceding anything...

ABRAMS:  Yes...

SUSKAUER:  ... which is also not conceding the fact that she has confessed as well, so we don‘t—there may be a question as to the voluntariness of her statement also.

ABRAMS:  Right.  Right.

SUSKAUER:  So I don‘t know.  I don‘t know the position of his body, blood splatter.  I think that there are some things that you know we have so many unanswered questions. 

ABRAMS:  Yes.  I mean I guess it does depend on what the defense is.  I mean if she‘s going to claim it was some sort of self-defense, then the forensics will matter quite a bit.  Here is again...

SUSKAUER:  Sure.

ABRAMS:  ... the lawyer—this is the lawyer one more time, “Dateline” talking about her feelings about her children. 

(BEGIN VIDEO CLIP)

FARESE:  She expressed her love for her children, but again, she‘s almost at this point like an onion and you have to peel back the layers to get any depth to it.  It was just very difficult at this time. 

(END VIDEO CLIP)

ABRAMS:  Liz, Thursday the—they will have another hearing there in court, where she may plead, but they‘ll also have a bail hearing, right? 

DAULTON:  Yes.  As Farese said earlier, he said out of respect for the Winkler family, that‘s why bail was not addressed today.  So basically that‘s all going to be addressed.  I‘m not sure how long the trial will be.  I‘m not sure if she‘ll actually stand up and enter her plea and what exactly will happen. 

ABRAMS:  All right.  Liz Daulton, Don Bosch, Michelle Suskauer, thanks a lot.  Appreciate it.

SUSKAUER:  Thank you.

ABRAMS:  Coming up...

BOSCH:  Thank you.

ABRAMS:  ... over a half million people show up to protest a bill that would make illegal immigrants felons.  It‘s a bill the president doesn‘t agree with.  We debate. 

And so much for going after the freshman.  An 18-year-old high school girl facing a statutory rape charge after having sex with a boy at her high school who was 15. 

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

Please help the authorities find Frederick Williams.  He‘s 49, five-nine, 155.  Convicted of raping a 15-year-old girl, has not registered his address with the state.  If you‘ve got any information on his whereabouts, please contact the New York‘s 100 Most Wanted tip line, 1-800-262-4321.  Be right back.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, the debate right now in Congress, should illegal immigration be criminalized or should many illegal immigrants already here become legal?  First the headlines.

(NEWS BREAK)

ABRAMS:  It has triggered huge protests around the country.  The issue

should Congress legalize or criminalize what are now illegal immigrants? 

Some of the protests bigger than any since the civil rights and anti-war marches of the ‘60‘s.  More than half a million people marched in Los Angeles alone on Saturday.  Hundreds of thousands more in other cities around the country.  All against a House bill already passed that would change illegal immigrant status from a civil crime and make it a felony.  And it would criminalize those good Samaritans who knowingly aid illegals and give illegal immigrants no way to legalize their status. 

The House bill doesn‘t include any provision for those already in the country to obtain legal status and it‘s at odds with President Bush‘s proposal and a third proposal being worked on by the Senate today.  The president says he wants a program to allow some—quote—“guest workers” to have temporary legal status in the country until they finish their jobs and then they can go back to their home countries and apply for citizenship. 

Over in the Senate, yet another proposal being considered today from Senators John McCain and Ted Kennedy.  It would allow immigrants already in the country to apply for citizenship once they pay taxes, a fine, and learn English, but some conservative senators are calling the McCain/Kennedy proposal amnesty for those who broke American immigration laws.  Dan Stein is president of the Federation for American Immigration Reform and Randel Johnson is vice president of Labor, Immigration and Employee Benefits for the U.S. Chamber of Commerce.  Gentlemen, thanks very much for coming on the program. 

(CROSSTALK)

ABRAMS:  We appreciate it.  All right.  Let me start with you, Mr.

Stein.  Why is the president‘s proposal so radical or so bad in your mind? 

DAN STEIN, FEDERATION FOR AMERICAN IMMIGRATION REFORM:  I think the president continues to be out of step with the ranking file Republican voters and frankly the average American in this country which is you know are we going to get serious about controlling illegal immigration?  Are we going to start tracking down on employers who are actually attracting illegal immigrants here?

And the great—you know the House bill is really not that strong.  Frankly, we wanted a lot stronger bill than what the House passed and I don‘t think anything the Congress is talking about is really going to do the job in the interior to really start cracking down on the major players that are making illegal immigration such a problem.  So yet—look the issue is are we going to decide who comes into this country or are people going to just be allowed to force their way into our country and demand amnesty.

ABRAMS:  Here‘s what the president said about that.

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  This program would provide a legal way to match willing foreign workers with willing American employers to fill the jobs that Americans are unwilling to do.  Workers should be able to register for legal status on a temporary basis.  If they decide to apply for citizenship, they would have to get in line. 

(END VIDEO CLIP)

ABRAMS:  And Mr. Johnson, the argument I guess goes is that it‘s just simply good for America and good for the economy? 

RANDEL JOHNSON, U.S. CHAMBER OF COMMERCE:  Well, it‘s that and I think there‘s some practical obstacles we just have to deal with.  There are 10 to 12 million here who are undocumented workers now and there are some who would say well, they did come here illegally, so let‘s deport them and that‘s the answer.  But we‘re saying and I think people like Senator McCain are saying (UNINTELLIGIBLE) Arizona, know where the rubber meets the road that that‘s not a practical solution. 

So what McCain suggests is give them a temporary legal status, let them—force them to learn English, make them pay a fine of say $1,000 and put them into a program over six years before they can qualify for permanent residency, because they are working, they are part of the economy, and we‘re not going to deport them, so there‘s no easy answer here.  So let‘s do something along the lines of the McCain bill.  It‘s not perfect and there‘s obviously going to be compromises in the Senate, but that‘s sort of the theory behind it, and the president is kind of working on those same principles, although not exactly as the McCain bill. 

(CROSSTALK)

JOHNSON:  It‘s a slash of practicality and you know what‘s—how do we get out of the status quo (UNINTELLIGIBLE).

ABRAMS:  And Mr. Stein, isn‘t the reality that that proposal as a practical matter in terms of benefiting the economy, et cetera, probably makes sense but yet as a moral matter, a lot of people are opposed to it? 

STEIN:  I don‘t think it makes any sense at all.  Every time the president has been opening his trap now for the last six years, he is encouraging millions of people to come and cross the borders illegally...

ABRAMS:  Do you really think that‘s going to affect whether people cross the border?

STEIN:  Absolutely...

ABRAMS:  Come on.

STEIN:  It is a huge, huge impact and the president is promising amnesty, guest worker programs.  Look, people understand in the post 9-11 environment that we don‘t have the interior immigration system to screen people properly, to make this law work.  Now what the House was saying is look, we‘re going to start really fixing the system from the ground up and start building an immigration program that commands respect from around the world, not a mockery and a joke.  And what the Senate is doing is giving us these same old—the lessons of the last 25 years is that you give an amnesty, you give a guest worker program...

ABRAMS:  Aren‘t they looking...

STEIN:  ... it doesn‘t work.  The laws are not enforced...

ABRAMS:  But aren‘t they looking at it...

(CROSSTALK)

ABRAMS:  Aren‘t they looking at it though more practically?  I mean it sounds—again, you sound like you‘re just saying...

(CROSSTALK)

ABRAMS:  ... you‘re saying it‘s wrong. 

(CROSSTALK)

STEIN:  Why is it not practical to deport... 

ABRAMS:  Wait.  Let‘s be clear.  Let‘s be clear.  You‘re saying it‘s wrong and it shouldn‘t happen and we need to figure out how to not make it happen.  The reality is, it‘s already happened and here we are.  Now we have these people in the country and the question is what to do with them. 

STEIN:  No look, the Senate bill if they pass it the way Specter introduced it, would increase our population and future immigration to give us 135 million more people than we would have had without it in 45 years, up to a billion people, a billion people by the end of the century.

ABRAMS:  Come on.  Those sound like nonsense...

STEIN:  They are...

(CROSSTALK)

STEIN:  I am telling you that‘s where we‘re headed...

ABRAMS:  All right.

STEIN:  ... and people don‘t understand what‘s in the bill.  They keep trying to raise immigration to accommodate more people crashing our borders.  We‘re already going to have 300 million people this year...

(CROSSTALK)

STEIN:  No one ever projected it.  These are accurate numbers. 

ABRAMS:  Mr. Johnson, are those accurate numbers? 

JOHNSON:  Well you know when you project into the future, obviously there‘s always some guesswork, but common demographic calculations tell you that in fact we‘re going to have a shortage of workers as we go into the future.  The Bureau of Labor Statistics tells us we‘re still going to have robust job growth, a good percentage of those top 10 fastest growing jobs are in the lower skilled area and just like we have a crisis with the Social Security problem, with not enough workers coming below to support the people who are retiring, we have a problem with long-term demographics just like Japan and Europe do with not enough workers coming into this country to support job growth and job growth benefits everybody. 

So—and secondly again, we have to do something about the undocumented who are already here, and so McCain and the president and other senators are trying to grapple with these tough issues, rather than demagogue them and I think we‘re going to see a good debate in the Senate on this issue and hopefully some decent legislation. 

ABRAMS:  Yes.

STEIN:  I don‘t think there‘s really no econometric evidence to suggest that a post-industrial information superpower should be importing large-scale low skilled...

ABRAMS:  But again...

STEIN:  ... uneducated...

ABRAMS:  ... the question is what to do with them here.  But Mr.

Stein, you‘re not addressing the question...

STEIN:  But there‘s more to the equation than that.

ABRAMS:  But no—but answer...

(CROSSTALK)

ABRAMS:  ... just deal with that first.  What do we do with the ones who are here? 

STEIN:  I don‘t—at this point, that discussion should not be on the table until employers, employers who are creating the problem...

ABRAMS:  All right...

STEIN:  ... incur some risks. 

(CROSSTALK)

STEIN:  You can deport them.  You can fine them.

ABRAMS:  You got to have an answer...

STEIN:  You can tell them...

(CROSSTALK)

ABRAMS:  Because Mr. Johnson has an answer. 

(CROSSTALK)

ABRAMS:  You don‘t have an answer. 

STEIN:  ... you got six months to leave.  You got six months to leave.  If you don‘t play by the rules, you don‘t play the game.  You got six months to leave.  You‘re never going to get a green card.  You‘d be surprised how fast we could clean up...

ABRAMS:  All right.  Mr. Johnson, final 15 seconds.

JOHNSON:  Well we do support tougher employer verifications, part the McCain bill, we know that‘s part of the deal, because the current system is broken...

ABRAMS:  Yes.

JOHNSON:  We‘re willing to buy into it and of course border security has to be part of that as the president recognized. 

ABRAMS:  Dan Stein, Randel Johnson, this is a very important debate. 

I appreciate you both coming on the program. 

JOHNSON:  Thank you, Dan.

ABRAMS:  Coming up, an 18-year-old high school student facing statutory rape charge after she had sex with a boy at her high school who was 15.  She‘s facing up to eight years in prison. 

And 46 Duke Lacrosse players being asked to submit DNA samples after a woman said she was raped at a team party.  OK.  But where‘s the public outrage decrying the so-called DNA dragnet.  Is there no outrage because the boys are white?  It‘s my “Closing Argument”. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, an 18-year-old thought she was having a little sexual encounter, innocent, with a 15-year-old boy.  Now she could go to prison for eight years.  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  Indiana prosecutors are going after an 18-year-old female student for having sex with a fellow student who was 15 at the time.  Below the age of consent in Indiana, which is 16.  The girl, Laura Wilcox, gave the boy a ride home from school.  He invited her into his house, they—quote—“made out” and then went to the boy‘s bedroom where the two had sex.  The boy‘s parents complained and a few days later, an arrest warrant was issued for Wilcox. 

She surrendered, was released on bond.  She‘s charged with two felonies for two sex acts at the boy‘s home.  Prosecutors say they‘re just following the law and that no one would be making a fuss if the roles were reversed and the 18-year-old was male instead of female. 

Joining me now on the phone is Tom Jekel, general manager and editor of the “Noblesville Ledger”, which is following this story and former prosecutor Susan Filan, who is an MSNBC analyst.  Thanks to both of you for coming on the program. 

All right, Mr. Jekel, has there been some outrage in the community over them going after this case? 

TOM JEKEL, NOBLESVILLE LEDGER” (via phone):  Dan, we‘ve stirred up quite a few people I think in Hamilton County here in suburban Indianapolis.  We‘ve gotten lots of comment, e-mails, phone calls, letters, people are really up in arms about this story. 

ABRAMS:  What is the sense generally in your community over whether they should prosecute—because I‘m sure there‘s some people who feel that morally it‘s wrong just for kids of to have sex and as a result, they probably support this to some degree. 

JEKEL:  Well, I‘m looking actually at a proof of tomorrow‘s editorial page and the first letter is from a Noblesville educator right here in our county and let me just quote from it briefly.  He says things like this should not happen but let‘s realistic—let‘s be realistic.  I can‘t believe the courts will find her guilty based on the age of both individuals and that it appears it was a consensual act.  So that‘s one of the comments. 

ABRAMS:  Yes.  You know, Susan, you and I have talked about issues that relate to gender, et cetera, but there was another case like this where an 18-year-old boy was charged for having sex with his 15-year-old girlfriend and it was equally outrageous to me as this one.  You‘re actually suggesting that it‘s a good thing that they‘re going after 18-year-olds for having sex with their fellow high school students? 

SUSAN FILAN, MSNBC LEGAL ANALYST:   Dan, the issue is, there is a statute on the books, if you have a problem with the law, go to the legislators, but don‘t pick on the prosecutors for equally enforcing the law... 

ABRAMS:  Because prosecutors don‘t have discretion, they‘re not allowed to make decisions as to which cases they prosecute and which ones they don‘t?  I must have had this wrong the whole time. 

FILAN:  Of course they have discretion and Dan, you never get anything wrong.  But here‘s what you got wrong on this one.  You don‘t pick your victims, as a prosecutor, you don‘t say you I like your story, you...

ABRAMS:  How about never prosecuting a law when it comes to something like—when it comes to two high school students?  How—why not simply say this is a law designed for adults who are having sex with children, which isn‘t OK.  The notion that an 18-year-old with a 15-year-old, be it a 15-year-old boy, 18-year-old girl, et cetera, I mean it‘s crazy to start bringing this into the criminal law.  We can say it‘s wrong and that we should say it‘s wrong, but to prosecute and put her in jail possibly for up to eight years. 

FILAN:  Go to the legislature then.  Tell the legislature that your law is wrong.

ABRAMS:  How about being an ethical prosecutor where you make judgments yourself and you say this is ridiculous. 

FILAN:  There‘s nothing unethical about enforcing the law and the statute and if you‘ve got a complainant, you‘ve got these parents saying my child is 15, he‘s not the legal age to consent, he doesn‘t have the legal capacity to consent, that‘s the definition of statutory rape if they make a complaint.  What‘s the prosecutor supposed to do, say sorry, Mr. And Mrs.  Smith...

ABRAMS:  Yes.

FILAN:  ... we really don‘t care.

ABRAMS:  No.  You‘re suppose to say there are a lot of laws on the books, as you well know, which are totally outdated.  I mean laws about what people can wear on public streets, et cetera, and they stay on the books.  No one wastes the time to change them.  This is an important law in general.  It‘s not something that should be removed from the books, maybe they should change the definitions, et cetera, but it‘s exactly the sort of case where the prosecutor should say we‘re not going to prosecute an 18-year-old girl for having sex with a 15-year-old boy after school. 

FILAN:  Absolutely not, Dan.  Here‘s—he‘s still a child under the law and under the law he doesn‘t have the legal capacity to consent and there‘s a reason for that.  The law has judged him too young and so therefore, she, at the age of 18, is considered a sexual predator.  Now should she go to jail for up to eight years?  That‘s an entirely different thing.  Should she be a convicted felon...

ABRAMS:  Oh, no, no, wait a sec.  Wait a sec.

FILAN:  That‘s an entirely different thing.

ABRAMS:  You said that all justice should be equal, so according to you, the same sort of punishment should be meted out to this 18-year-old girl as should be meted out to some 55-year-old guy who has sex with a 13-year-old. 

FILAN:  You misquote me.  I‘ve never said that all justice should be equal.  If that were the case and anybody that violated the statute...

ABRAMS:  You just said...

FILAN:  ... you don‘t need a judge.  You don‘t need a prosecutor.

ABRAMS:  ... you said the laws on the books and if they want to complain about it, go to the legislature. 

FILAN:  I‘m saying the law to prosecute should be evenly applied.  You

don‘t pick on boys for having sex with underage girls and prosecute them

and not quote, unquote “prosecute”

ABRAMS:  Don‘t prosecute...

FILAN:  ... the girls. 

ABRAMS:  ... either high school students when they‘re having sex.  If it‘s an 18-year-old and an 11-year-old, it‘s a different story.  If it‘s an 18-year-old and it‘s a 12-year-old, it‘s a different story, but I think that most people out there and I‘m sure there are going to be a few who are going to disagree, but most people out there are going to say, I don‘t want the criminal law—again, doesn‘t make it right, doesn‘t make it a good thing, but it doesn‘t mean the criminal law needs to be getting involved here.

FILAN:  Then Dan, rewrite the legislation.  Let‘s have the Dan Abrams bill.  Let‘s say we‘ve got to lower the legal age of consent from 15 to 13...

ABRAMS:  Yes.

FILAN:  ... to 12.  Let‘s say for boys...

ABRAMS:  No.

FILAN:  ... because it‘s kind of cool for boys to do it...

ABRAMS:  No...

FILAN:  ... make it 12 or 11...

ABRAMS:  I want...

FILAN:  ... for girls because girls can‘t handle sex as well as boys. 

We‘ll make it 15...

ABRAMS:  I want a 50-year-old prosecuted for having sex with a 15-year-old.  I do.  I don‘t want an 18-year-old.  But... 

FILAN:  So it‘s basically your morality that is going to be stamped on the...

ABRAMS:  The public‘s morality. 

(CROSSTALK)

ABRAMS:  Yes, I‘m saying the bottom line is that the prosecutor knows what the sentiment is in the community and we just heard it from Mr. Jekel and I believe him.  So anyway, Tom Jekel, Susan Filan, thanks a lot.  Appreciate it.

Coming up, police in North Carolina set up a DNA dragnet after a woman said she was raped at my alma mater Duke University.  Civil rights activists have criticized DNA dragnets many times before, saying they violate individual rights, but those were cases when blacks were targeted.  Where are they now?  It‘s my “Closing Argument”. 

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—where is the outrage over 46 members of the Duke University Lacrosse team being asked to provide DNA samples to the local police.  All but one player provided samples after a dancer, hired by certain members of the team for a party, claimed she was sexually assaulted, sodomized, and beaten in the bathroom.  Why did only 46 of the 57 players offer up samples?  Because one wasn‘t asked.  The alleged victim told police she was positive the suspect or suspects were white, so the sole black member of the team was exempt, makes perfect sense to me. 

The alleged perpetrator was definitely white, why bother asking for DNA from someone who wasn‘t responsible.  When police put together a lineup and the suspect is a white man, white men are included in the lineup, it‘s a racially based decision, but in my mind not simply profiling.  But that‘s not how some civil liberties groups have seen it when black men have been asked voluntarily for samples. 

In Omaha, Nebraska, efforts to find a serial rapist where the victims claimed it was black, met with public outrage when police asked nearly two-dozen black men to give DNA.  In Charlottesville, Virginia, efforts to find a different serial rapist led police to swab the cheeks of 187 black men.  In those cases the American Civil Liberties Union called the DNA sweep racial profiling.  Where is the same ACLU that decried profiling when random men in Cape Cod, Massachusetts, were asked for DNA in connection with the murder of former fashion writer Christa Worthington?  Look, sometimes the police are wrong.

Back in 2002 in Baton Rouge, they took DNA swabs from over 1,000 white men, believing a serial killer stalking the area was white.  When the suspect was finally arrested, he was black.  But I fear the outrage here is muted because the alleged victim is black, the alleged perpetrator white.  When we contacted the North Carolina Chapter of the ACLU earlier they claim today was the first time they had heard of this story, this even though the story about the DNA has been plastered all over North Carolina papers for almost a week.

My alma mater Duke University has condemned the actions of the young men that night, but say the facts surrounding the alleged assault remain in dispute.  But I think it‘s hard to dispute that certain cases provide better fodder for civil liberties groups or maybe they‘re just realizing that these dragnets actually make sense. 

Coming up, a lot of you writing in about news that Texas is starting to enforce rules making it a crime to be drunk in a bar.  Some of you asking isn‘t that what bars are for?  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say, now it‘s time for “Your Rebuttal”.  On Friday the big effort in Texas to stop drunk driving they say, but they‘re arresting people for public intoxication inside bars.  I said it seemed ridiculous, almost all of you agreed, including third generation Texas - Texan Melanie Walden Roberts in North Richland Hills. 

“I think it‘s a sad day in America when one cannot go into a bar in Texas and not be worried about having one too many.  I suppose when tourism slacks, because too many people are worried about being arrested in Texas in hotels, TABC will lift their sting.”

From Illinois, Sean Alvarez, “What‘s next in Texas?  Arresting bartenders when they leave their houses for work because they might serve a drunk person later in the day?”

And Britt McBryar, “Currently I‘m vacationing in Texas, visiting friends.  When it comes to setting the site of our next reunion none of us will come to Texas.  The two of us who were the swing votes bringing our group here have already apologized for not having voted with the rest of us for Las Vegas.”

But James Angus Linney asks, “What is so bad about stopping people from harming themselves?  Do you have a vested interest in your strident objections to one of the few laws that make any sense?” 

I do have a vested interest and it‘s in personal freedom.  That includes the right to engage in a legal act without frivolous government interference.  As I said, let them target drunk drivers, not drunks in a hotel who are going to their rooms to sleep it off. 

Finally, in my “Closing Argument” Friday I said Major League slugger Barry Bonds‘ lawsuit against the authors of a new book about his alleged steroid use is ridiculous.  He wants all their proceeds donated to a children‘s charity.  I said maybe he should compensate all his fans if he did use steroids by donating one-year salary to that same children‘s charity. 

Mark Wedgley writes, “Where do you get off telling Bonds what he should donate a year of his salary to charity when you personally have not seen any tests or proof of Bonds‘ alleged steroid use?  Why don‘t you donate your salary to charity instead of my guess is a Republican senator.”

Well, let‘s see, Mark.  He‘s not saying anything in the book is untrue.  Rather, he‘s saying the authors never should have gotten access to certain grand jury material.  He filed such a ridiculous lawsuit claiming to do it for charity, I just had another suggestion for him on how to actually get the charity some money, because he‘s not going to win the lawsuit.

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.

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