updated 4/4/2006 11:13:07 AM ET 2006-04-04T15:13:07

Guests: Andrew McBride, Andrew McCarthy, James Myart, Michael Raffauf, Anita Whirley, Tonya Powers, Susan Filan, Richard Condon, Erin Einhorn, Charol Shakeshaft

DAN ABRAMS, HOST:  Coming up, jurors in the death penalty phase of the Zacarias Moussaoui trial have reached a verdict and they‘re about to read it. 

The program about justice starts now. 

Hi everyone.  First up on the docket, breaking news, we are moments away from knowing if Zacarias Moussaoui, the only person tried in this country in connection with 9-11 will get the death penalty or at least could get the death penalty.  Now the question of course, in connection with these 9-11 attacks, did his actions lead to at least one person dying.  That‘s the ultimate question.  Did his intentional lies lead to at least one person dying on 9-11?  There‘s question one.  Did he intentionally lie to the FBI when he was arrested in mid August 2001?

Did he lie contemplating that lethal force would be used as a result and that at least one person died in the 9-11 attacks as a direct result of his lies.  If the answers to those questions are yes, then this case moves in to phase two, where they will determine whether he gets the death penalty.  They‘ll hear from victims‘ families, et cetera.  If the answer is no, life in prison.  If they‘re not unanimous, no one is entirely certain exactly what happens. 

With me now, former federal prosecutor Andrew McBride and with us by phone, former federal prosecutor Andrew McCarthy and terrorism expert Steve Emerson is with us as well.  Gentlemen thanks a lot for coming on the program.  Appreciate it.

All right, Andrew McBride, on this question of can they make it to this next phase, you would expect, would you not, that based on Moussaoui‘s own testimony, based on him saying, yes, I knew about 9-11.  Yes, I was supposed to fly a fifth plane into the White House, that it would be likely that these jurors would say there‘s enough to say yes to all of those questions.

ANDREW MCBRIDE, FORMER FEDERAL PROSECUTOR:  Dan, I agree.  I think Moussaoui‘s testimony put it over the top.  The government‘s theory being that he lied to divert resources so that, as they put it, his brothers in al Qaeda could carry out the plot.  His testimony that he knew the outlines of the plot and then that horrific testimony that while he is in prison, he actually brought a transistor radio so he could listen for that glorious day when the plot occurred, I think there were three or four pieces of his testimony along with two strong days for the government in the last two days of their case.  That made the case in several different ways.

(CROSSTALK)

ABRAMS:  The prosecutor said you lied because you wanted to conceal that you were a member of al Qaeda. 

Moussaoui:  That‘s correct. 

You lied so the plan could go forward.  That‘s correct. 

Andrew McCarthy, do you agree as well that it‘s likely that at this phase the jurors will say yes, there‘s enough evidence to consider the death penalty? 

ANDREW MCCARTHY, FORMER FEDERAL PROSECUTOR (via phone):  Yes, Dan, I agree with Andrew if it‘s a rational verdict, that‘s what the verdict should be.  I always hesitate because I thought that the case for capital punishment for the embassy bombers back in—when we had that phase in 2001 was very strong, perhaps even stronger than this, and the jury voted against that, so I think in a death penalty phase, you always have to worry about jurors‘ attitudes about capital punishment playing in, in a way that you know perhaps you wouldn‘t have to worry about in other kinds of jury proceedings. 

ABRAMS:  Now Andrew, I don‘t get it—you‘re both named Andrew.  So Andrew McCarthy, I don‘t quite get it.  If these jurors are not unanimous, it seems that there‘s some question as to what happens next.  How can there be a question?

(CROSSTALK)

MCBRIDE:  The other Andrew will answer, there‘s no question, the government needs 12 jurors to find beyond a reasonable doubt that the act caused someone‘s death.  If it didn‘t, it reverts to life in prison...

ABRAMS:  That‘s not the position the government is taking...

MCBRIDE:  That‘s the only position there can be because the gateway factor that we‘re talking about here, you have to have that proof to be eligible for what you refer to...

ABRAMS:  No, I know but the prosecutors are saying it should be considered a mistrial if there isn‘t unanimity among the jurors and that they should if they want to, be able to retry him. 

MCBRIDE:  (INAUDIBLE)

ABRAMS:  That‘s the position they‘re taking. 

MCBRIDE:  That‘s—I guess it‘s an interesting question...

ABRAMS:  That‘s why I‘m saying...

(CROSSTALK)

ABRAMS:  That‘s my question, how can we...

MCBRIDE:  That‘s a good question.

ABRAMS:  How can we not know at this point...

MCBRIDE:  There‘s a very strong argument that jeopardy has attached as to a unique sentencing phase.  Jeopardy attaches when the jurors raise their hands and are sworn by that judge...

ABRAMS:  Right.

MCBRIDE:  ... and there‘s a thing called the double jeopardy clause that says...

ABRAMS:  Yes.

MCBRIDE:  ... you can‘t be put twice in jeopardy of life or limb...

(CROSSTALK)

MCBRIDE:  ... life or limb...

ABRAMS:  That doesn‘t answer the question of how we can‘t know at this point what happens. 

MCBRIDE:  Yes.

(CROSSTALK)

ABRAMS:  Well Lisa Daniels is at the courthouse.  Lisa, when are we expecting this verdict to be read? 

LISA DANIELS, NBC NEWS CORRESPONDENT:  Any moment.  It‘s so funny, Dan, that question that you‘re just discussing with Andrew we were just discussing this on this nearby bench.  It seems incredible to me that they don‘t know if there‘s some yes‘s and some no‘s.  Whether that it—oh actually I‘m being told that here comes the court officer, Edward Adams, the public informer for the—information officer for the court.  He is coming to the podium.  So, Dan...

(CROSSTALK)

DANIELS:  ... in a matter of seconds...

ABRAMS:  Yes, he‘s going to...

DANIELS:  ... we will find out. 

ABRAMS:  He is going to be reading the verdicts and again, as Lisa pointed out, if the answer is yes to all the questions that likely means that he‘s going to the second phase.

EDWARD ADAMS, U.S. DISTRICT COURT SPOKESMAN:  Good afternoon.  My name is Edward Adams.  I‘m the court‘s public information officer.  In the case of United States versus Zacarias Moussaoui, the jury has reached a verdict.  As to count one, conspiracy to commit acts of terrorism, transcending national boundaries, the jury was asked whether it unanimously finds that the government has established beyond a reasonable doubt the following four facts. 

Number one:  The defendant was 18 years of age or older at the time of the offense.  The jury answered yes. 

Number two:  The defendant intentionally participated in an act defined as lying to federal agents on August 16, 17, 2001.  The jury answered yes. 

Number three:  The defendant participated in the act contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person other than one of the participants in the offense.  The jury answered yes. 

Number four:  At least one victim died on September 11, 2001, as a direct result of the defendant‘s act.  The jury answered yes. 

As to count three, conspiracy to destroy aircraft, and count four, conspiracy to use weapons of mass destruction, the same questions were asked and the jury answered them the same way they did as to count one.  By this verdict, the jury has found that death is a possible sentence in this case. 

ABRAMS:  Yes, yes, yes, yes, yes, 12 questions, 12 answers, Zacarias Moussaoui, the only person tried in this country in connection with 9-11, now faces the possibility of death.  In large part thanks to his own testimony inside the courtroom where he seemed to almost brag about the fact that he was supposed to fly a fifth plane into the White House. 

Well now a jury coming back and saying that they do believe that he committed an intentional act and that is lying when he was arrested in August of 2001.  Again, this is weeks before the 9-11 attacks.  That he did participate in the actions that led to this and at least one person died as a result. 

All right.  So Andrew McBride, we now have the verdict from this jury. 

Put it into English for us.  Bottom line is these jurors are saying what? 

MCBRIDE:  These jurors are saying that Moussaoui is responsible for the death of at least some of the almost 3,000 people who died on 9-11, that by lying to the FBI, and diverting their resources, he allowed the others to carry out the plot.  The example I would give is sort of a lookout at a bank robbery who sends the police in the wrong direction and then the robbers shoot the teller dead in the bank.  And the jury is saying Moussaoui knew what he was doing, and he misdirected the cops so that his friends could kill people and he knew it and he did it intentionally and now—and that is a crime that makes him eligible for the death penalty, because he wanted life to be taken and he took an act to assist in the taking of life and it did result in death. 

ABRAMS:  NBC‘s Pete Williams joins us now.  Pete, what happens now?

PETE WILLIAMS, NBC NEWS CORRESPONDENT:  We go into phase two, Dan, and it‘s going to start quite quickly.  This will be the phase that the government in essence has been preparing to put on for more than four years.  This will have a lot of reminders about the horrors of the 9-11 attacks themselves. 

We‘ll hear from victims.  We‘ll hear from people who were in the buildings, family members of those people who didn‘t make it out, and we are going to probably see some things and hear some things, Dan, that we‘ve never heard before, probably very graphic evidence and testimony, videos perhaps of people falling out of the windows, audiotapes that we‘ve heard some parts of just in the past week of people from the buildings calling the 911 operators.  It‘s possible we may hear both sides of those. 

Perhaps phone calls and radio transmissions off the planes that were hijacked, so we‘re going to go from a very legalistic phase of this death penalty trial to a much more emotional phase as the jury now has to decide whether Moussaoui should get the death penalty or not and this will begin to resemble a more traditional death penalty phase with what they call the aggravating and mitigating factors.  The government presents why they think he should get the death penalty, the defense, why he shouldn‘t, and then the jury has to weigh those and reach its verdict.  And when the jury was being chosen, Dan, the judge said be prepared to go through late April or early May, so we may have another month or so worth of evidence before we get the final verdict in this case. 

ABRAMS:  Pete, real quick, security there at the courthouse, did they beef it up today? 

WILLIAMS:  Well, it‘s about the same any time Moussaoui is in the courtroom building.  We have snipers on buildings adjacent to the courthouse.  We have security folks from Alexandria‘s police department and from federal agencies with their weapons at the ready.  We have streets blocked of off, so yes, very, very high security throughout this trial and today no less than any other time. 

ABRAMS:  Pete Williams, thanks very much. 

Andrew McCarthy, former federal prosecutor, I guess the best way to explain it is that up to this point, the jurors have now said yes, we believe that he committed the crimes that make him eligible.  Sure, he pled guilty, but we had to determine X, Y and Z to say did he commit these acts in connection with these crimes that even make him eligible for the death penalty and now phase two is going to be should he get it?

MCCARTHY:  Right.  I think the phase that we‘ve had is really the tougher one for the government and the one I think that they had to be sweating a lot more than the phase that we‘re about to have...

ABRAMS:  What are going to be the mitigating—aggravating meaning the reasons that he should get the death penalty, mitigating are going to be the ones that are going to suggest he shouldn‘t get the death penalty, and in all the death penalty cases the jurors say do the aggravating circumstances outweigh the mitigating ones.  What are the mitigating circumstances?

MCCARTHY:  Well they are going to be factors about Moussaoui, the person and it may be much more difficult for us at this stage to say what they may be because we know a lot about 9-11 four years down the road, but we don‘t know a lot about what the defense has been preparing to lay out for the jury about Moussaoui, the person.

ABRAMS:  My guess, Andrew McBride, is they‘re going to be suggesting that this guy is out of his mind. 

MCBRIDE:  I think that‘s true, but I agree with the other Andrew, that this phase of the trial we‘re going—vastly favors the government having tried death penalty cases myself here, they‘re going to show pictures of 9-11, you‘re going to hear from political witnesses from New York, you‘re going to hear from survivors‘ families...

ABRAMS:  Right, but who is going to testify for him? 

MCBRIDE:  You know, mitigation experts...

ABRAMS:  His mom?

MCBRIDE:  ... sociologists who will come on the stand and say I‘ve looked at his background and also the defense has noticed a psychiatrist I think who‘s going to testify...

ABRAMS:  He‘s in big trouble. 

MCBRIDE:  ... paranoid schizophrenic, but let‘s face it, this is the balancing—Timothy McVeigh death penalty, this is times 20 the aggravating versus the mitigating...

ABRAMS:  Yes.

MCBRIDE:  ... and Andrew is exactly right.  One thing I would like to say...

ABRAMS:  Quickly.

MCBRIDE:  ... I would say congratulations to David Novak, Robert Spencer and Jerry Raskin, the three guys who for three and a half years have thought this thing out.

ABRAMS:  Yes.

MCBRIDE:  And as you know, Dan, there were some very tough moments...

ABRAMS:  David Raskin, yes...

MCBRIDE:  Yes, David...

(CROSSTALK)

ABRAMS:  All right.  Andrew McBride and Andrew McCarthy, thank you very much. 

Again, to recap, Zacarias Moussaoui, the only person tried in this country in connection with 9-11 does now face the possibility of the death penalty.  A jury coming back with the answers to 12 questions, yes, yes, yes, yes, and yes, and as a result, Zacarias Moussaoui could be only weeks away from a death verdict, although he‘ll have his chance to present evidence as we‘ve been talking about though, tough to figure out how much evidence he‘s really going to be able to present to avoid.

Coming up, prosecutors deciding whether to charge a U.S. congressman for allegedly striking a Capitol Hill policeman.  Her lawyers say she is really just a victim of racism.  They join us live. 

And members of the Duke Lacrosse Team waiting to find out if anyone will be charged for an alleged rape at one of their parties.  How are students on campus responding to those lacrosse players now?  We talk to someone who has worked with this team. 

Plus, for the first time, we have some hard stats on the number of teachers having sex with their students and at least in one big city, it looks like the number is actually on the rise, not just media-created hype.

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:  Charges could be coming at any time now against Congresswoman Cynthia McKinney accused of scuffling with a Capitol Hill policeman Wednesday.  The U.S. Attorneys Office confirms Capitol Hill police have submitted their case against the six-term Georgia Democrat.  McKinney admitted she wasn‘t wearing an identifying lapel pin when she tried to enter a House office building.  She also insists the Capitol Hill police officer who tried to stop her is to blame for the altercation that followed.

(BEGIN VIDEO CLIP)

REP. CYNTHIA MCKINNEY (D), GEORGIA:  The incident was instigated by the inappropriate touching and stopping of me, a female black congresswoman.  I deeply regret that this incident occurred and I am certain that after a full review of the facts I will be exonerated. 

(END VIDEO CLIP)

ABRAMS:  James Myart and Michael Raffauf are attorneys for Congresswoman McKinney and they join us now.  Mr. Raffauf joins us by phone.  Thanks a lot for coming on the program.  Appreciate it. 

All right, Mr. Myart, I mean this is a serious allegation that the police are laying out against your client and it seems, and correct me if I‘m wrong, but it seems like the legal and P.R. effort here is to say she didn‘t do anything wrong at all and in fact, they were completely to blame. 

JAMES MYART, ATTORNEY FOR REP. MCKINNEY:  Well, what I will say to that is, is that the Capitol police have an obligation and a responsibility to protect members of Congress and the only way you can protect a person or a member of Congress is to know who that person is, and if the police officer who should have been trained to recognize Cynthia McKinney and every other member of Congress, if he had recognized her like he was supposed to, it would not have happened. 

ABRAMS:  I thought that the whole point of having to wear the lapel pins was to say this shows that I‘m a member of Congress. 

MYART:  Well, you know the lapel pin argument is a misnomer.  The fact of the matter is, is those lapel pins are like police badges.  You can get them anywhere.  That is no security at all.  Again, these police officers are supposed to be trained to recognize the people that they are going to protect. 

ABRAMS:  But it sounds like you‘re changing the subject.  I mean if she struck a police officer, that‘s not OK. 

MYART:  Well, let me put it to you this way.  If a person feels as though they are placed in impending fear of their own safety instinctively they will react.  I‘m not confirming that she struck or didn‘t strike the individual.  All I‘m saying is, is that she was placed in impending fear of her own safety. 

ABRAMS:  So she literally thought that at the building there, that with the police officers there, that she was going to be somehow assaulted and harmed there in the lobby?

MYART:  Well apparently that‘s what the police officer thought.  If he hadn‘t, he would not have approached her the way he did approach her. 

ABRAMS:  Well...

MYART:  I think it‘s important to point out here that this whole issue is much larger than a lapel pin.  What this issue actually revolves around is recognition of individuals and a predisposition by many police officers across this country to hold individuals of color at a heightened suspicion...

ABRAMS:  See, that‘s my concern about this.  And look, I‘m not going to dispute with you that, because I think that‘s a fact...

MYART:  It is a fact.

ABRAMS:  ... of life in this country.  OK...

MYART:  That‘s right.

ABRAMS:  With that said, what evidence do you have that that has anything to do with this case?

MYART:  Well the fact is, is that there is ample evidence across the country...

(CROSSTALK)

ABRAMS:  But she‘s different.  I mean—she‘s the one in power. 

She‘s the congresswoman.  He‘s just a police officer. 

MYART:  Correct.

ABRAMS:  I mean if the tables were turned here and we were talking about a black congressman—sorry, a black officer with a white congressman, people would be saying, you know, how could this white congressman have treated the black officer this way and I would be saying the same thing, which is what does race have to do with this necessarily?  It may, but what evidence do you have that it does? 

MYART:  Well the fact of the matter is, is that‘s pure speculation on your part. 

ABRAMS:  That‘s right.

MYART:  We‘re dealing with actually what happened. 

ABRAMS:  Wait.  Wait.  Wait...

(CROSSTALK)

ABRAMS:  You‘re the one who‘s...

(CROSSTALK)

ABRAMS:  Correct me if I‘m wrong, and let me get Mr. Raffauf in this because I‘m sure...

MYART:  Yes.

ABRAMS:  Mr. Raffauf, I mean isn‘t it true that it is pure and unadulterated speculation to suggest that somehow the reason that this altercation occurred was because Congresswoman McKinney is black and a woman? 

MICHAEL RAFFAUF, ATTORNEY FOR REP. MCKINNEY (via phone):  Yes, let me say first of all, that this—if this is a security issue, then there was no security there.  You cannot pass somebody through the security checkpoint just because they‘re wearing a name badge.  We‘re not talking about a photo I.D.  We‘re talking about a name badge. 

ABRAMS:  Fair enough.

RAFFAUF:  Congressmen and their entourage routinely walk by these checkpoints, so you must know your congressman, so the duty was on the officer to know who was the congressman, who are the congressmen. 

ABRAMS:  But again...

(CROSSTALK)

RAFFAUF:  ... pattern of this happening to McKinney.  As you know, there‘s been at least four previous incidents where she‘s had run-ins with Capitol police officers because...

(CROSSTALK)

ABRAMS:  The point is that she should have then said we need to change the system as opposed to letting it get to this point where we have an officer saying he asked her three times to stop, that she kept going.  He says he placed her—his hand on her and that McKinney then struck the officer. 

MYART:  Well, that‘s what the police officer is saying. 

ABRAMS:  That‘s why and that‘s the way I characterized it. 

MYART:  And what else is it that he‘s going to say.  The fact of the matter is if he had known by face recognition Cynthia McKinney, this incident would not have occurred. 

ABRAMS:  That‘s true. 

MYART:  Now the point is, is that he did not know who she was, so to him, at least in my mind, she was just another black person not abiding by authority.

ABRAMS:  But again, why—but why isn‘t it that she was just another person who wasn‘t abiding by authority.  I mean why do we—why is this about race?  That‘s what I don‘t understand.  I can understand why it might be about race...

(CROSSTALK)

ABRAMS:  ... but I don‘t understand how you can be so certain it is? 

MYART:  Why do police officers advertently, intentionally stop more black people on the streets...

ABRAMS:  She is a U.S. congresswoman...

MYART:  Yes, but the point is...

ABRAMS:  ... at the building. 

MYART:  Yes, but the point is...

ABRAMS:  I mean this is not on the street in New Jersey. 

MYART:  Yes, but the point is, is that the officer did not know that. 

That she was a... 

ABRAMS:  But they know what building they‘re working in, right?  I mean... 

MYART:  What does that have to do with it? 

ABRAMS:  It has to do with the fact that it‘s very different to say that when someone is driving down the street in New Jersey, et cetera, I would hope that the person who alleges that some X, Y or Z happened because of their race that there would be some indication, statistics, et cetera.  In this...

MYART:  Profiling...

ABRAMS:  No, but now we‘re talking about the U.S. Congress Building. 

Let‘s focus on that.

MYART:  Profiling—listen, profiling knows no economic status.  I don‘t care if you are a member of Congress or if you are on the streets in San Antonio, Texas.  If you are black, you are held at a heightened standard of suspicion.  Now unless people in this country begin to recognize and realize that we have a problem with this...

ABRAMS:  But that doesn‘t entitle someone to strike a police officer, period. 

MYART:  Well, let me put it to you this way.  I‘m not...

(CROSSTALK)

RAFFAUF:  ... to grab a congressperson? 

MYART:  Absolutely.

RAFFAUF:  What entitled an officer to grab a congressperson? 

ABRAMS:  An officer—if he asked her three times to stop and she did not, no matter if she‘s a...

RAFFAUF:  We don‘t know...

ABRAMS:  I‘m saying if.  I‘m saying if...

RAFFAUF:  I don‘t know.

ABRAMS:  That‘s right.  I—that‘s why I used the word if, if.  If she—would you agree with me that if she was asked three times to stop and she did not that the officer had a right to put his hand on her. 

MYART:  You know what?  I‘m not going to speculate about the incident...

ABRAMS:  That‘s all you‘re doing...

(CROSSTALK)

ABRAMS:  You‘re speculating it was based on race.

(CROSSTALK)

MYART:  I‘m going to deal with the incident because statistics prove...

ABRAMS:  But you‘re speculating.  Come on, we‘re both—I mean at least let‘s agree that we‘re both engaging in some degree of speculation here. 

MYART:  No.  You are engaging in...

ABRAMS:  Oh, oh...

MYART:  ... more speculation than I am.  What I‘m telling you is, is that this happens to black people across this country every day and for you and others to disagree that that exists...

ABRAMS:  I‘m not—let‘s repeat what I said before at the beginning of this conversation. 

MYART:  OK.

ABRAMS:  The beginning of this conversation I said I will not dispute that with you and that I believe that that does happen in this country.  I‘m not convinced that there is any evidence to suggest that that is what we‘re talking about here.  This is the U.S. Congress.  This is an allegation that she struck the officer.  Not the other way around.  It‘s just a different issue here to me, than to just be able to say oh you know what, this is about race, this is about gender.  The question should be and you both are taking a consistent position, and I respect that, which is she didn‘t strike him, right? 

MYART:  Listen, all I said was is that I was not going to talk about the specifics of the case.  What I‘m telling you is, is that no person has a right to grab another person.  If you grab another person...

ABRAMS:  A police officer absolutely has the right to grab a person if they say three times walking into this building, stop, stop, stop and the person doesn‘t stop, I think a police officer absolutely has a right to put a hand on someone.

MYART:  I‘ll tell you this.  A police officer has a right to use force under authorized circumstances.  My point to you is it never would have gotten to that particular situation...

ABRAMS:  Yes.  All right.  Understood. 

MYART:  No I want you—and I want it to be clear. 

ABRAMS:  Final point, yes, go ahead.

MYART:  If he had known like he should have known...

ABRAMS:  Understood.

MYART:  ... that Cynthia McKinney was a United States Congress person, we would not even be here talking about this today, but since we are talking about it today, the point is, is it‘s happening across America. 

ABRAMS:  All right.

MYART:  And it needs to be dealt with. 

ABRAMS:  You get the final word on that.  And all I would say is that I expect that we will learn more as time passes.  I think we‘d all agree on that. 

MYART:  Yes. 

ABRAMS:  James Myart and Michael Raffauf thanks a lot for coming on the program.  We appreciate it.

Coming up, for the first time we‘ve heard some hard stats on the number of teachers having sex with their students.  At least in one big city it looks like the number is actually on the rise, not just media created hype. 

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

Authorities need your help finding Curtis Hairston, 31, six-one, 175, was convicted of rape.  Hasn‘t registered his address with the state.  If you‘ve got any information on his whereabouts, please contact North Carolina State Bureau of Investigation, 919-662-4500.  Be right back. 

(COMMERCIAL BREAK)

(CNBC MARKET WRAP)

ABRAMS:  We‘re back.  Mary Winkler sits in jail today charged with premeditating the murder of her minister husband, shooting him once in the back from two to three feet away before taking off with her three daughters, presumably, at least according to the authorities to avoid getting caught.  Now her attorneys up to this point have been unclear about exactly what her defense will be.  They say that they‘re still investigating and they‘re still talking to her, but over the weekend her lead attorney said this to “The Jackson Sun”.

Quote --  “Any time you have a gunshot fatality, it‘s not always did something happen.  There are the three questions.  Did it happen?  Why did it happen?  And how did it happen?  So you would want to explore if she has connected firing the weapon.  Was it an intentional act or unintentional act or an accidental act and there‘s a difference.  We‘re going to talk about all that in a minute. 

But first, Mary Winkler had some visitors over the weekend and one of them joins me now on the phone.  Anita Whirley is a friend of the Winkler family and also a member of their church.  Thanks a lot for taking the time to come on the program.  So, how did she seem when you spoke to her? 

ANITA WHIRLEY, MARY WINKLER‘S FRIEND (via phone):  Well, she‘s still in shock.  She‘s very quiet and very subdued. 

ABRAMS:  Does she recognize or appreciate what it is that she‘s done? 

WHIRLEY:  That I have done for her? 

ABRAMS:  No.  No.  Does she recognize or appreciate what she has done? 

WHIRLEY:  No.  I really don‘t believe that she really knows what she has—what she has done yet.  I really don‘t believe that she knows. 

ABRAMS:  Did she say anything about why she did it? 

WHIRLEY:  She didn‘t say anything about that she had done it even.  We didn‘t mention—we didn‘t mention what happened.  The only thing that we just told each other that we loved each other, I told her that we were going to stand behind her, we were there for her, and we loved her. 

ABRAMS:  What has led you to have that commitment to stand behind her?  I mean, you were a member of this church, I assume this was a minister that you loved and appreciated, so why would you now be so certain that you‘re going to stand behind her? 

WHIRLEY:  Well, there has to be some drastic thing that happened to Mary for her to have done this.  Our Mary could not have done this. 

ABRAMS:  Do you have any sense of what that was? 

WHIRLEY:  We have no idea.  It was nothing.  We saw nothing.  We heard nothing.  They were just—always just the lovingness couple that you‘ve ever seen.  Always there for us. 

ABRAMS:  All right.  Anita Whirley, thanks a lot for taking the time. 

WHIRLEY:  Yes, sir.

ABRAMS:  Joining me now on the phone, Tonya Powers, WREC radio reporter and MSNBC legal analyst and former prosecutor, Susan Filan.  Tonya, are you getting the sense that we‘re hearing a lot of possible defenses from these attorneys, yet even they may not be certain what they‘re going to pursue? 

TONYA POWERS, WREC RADIO REPORTER (via phone):  Well, you know, it‘s kind of funny, Dan, yes, we are getting a lot of possible defenses.  I spoke with Steve Farese literally within the last hour and I asked him about this piece in “The Jackson Sun” that you‘re quoting from.  Big headline says “Lawyer, Winkler shooting may have been accident.  And I asked him, I said OK, what is with this?

What—are you saying it was an accident now?  And he said no.  What he was doing, he said I don‘t know where she got that.  That was one his—that was one of the quotes he said to me about the article.  He said I don‘t know where she got that.  I was speaking to her in a hypothetical.  And basically, the thing that Steve Farese is saying, you know that is absolutely prevalent above anything else is they‘ve got to do a lot of background, they‘ve got a lot of—they‘ve got to check a lot of the history, they‘ve got to get all their stories straight and find out.  He even equated it and he said much like a reporter does, we‘ve got to get all the different sides to the story. 

ABRAMS:  Susan Filan, I mean these attorneys are speaking in a lot of

hypotheticals, what if.  It sounds Confucius like.  What if I say this,

then this could be the case or maybe this or maybe that.  You know, it does

I think there was a good amount of sympathy going into this, for Mary Winkler. 

I think that a lot of people felt the way Anita Whirley did, which is there‘s got to be some reason that she did this, but when you start saying well maybe it was an accident and maybe it was postpartum depression and maybe there was some sort of abuse, et cetera, that do you worry about losing people? 

SUSAN FILAN, MSNBC LEGAL ANALYST:  Dan, you took the words right out of my mouth.  They had it from the beginning with this incredibly sympathetic looking defendant.  Now what they‘re doing, I guess in an attempt to sort of let the jurors, the potential jury pool out there know that there probably are defenses that they‘re going to pursue, they‘re poisoning the well instead of flattering the well. 

This is the stuff that you do behind closed doors with a group of lawyers.  You brainstorm.  Good for them they‘re pursuing her defenses, but readily bad that they‘re doing it in public like this because forgive the pun, but to go with a shotgun approach like this of defenses, the smorgasbord...

ABRAMS:  Yes.

FILAN:  ... I think is really poor strategy when you‘re trying to do it in the press and to say it‘s an accident when he‘s shot at close range with you know a big gun in the back, what‘s coming next, it was suicide? 

ABRAMS:  Yes and I think that, you know, it obviously can‘t be both an accident and something that was done based on her psychological condition.

FILAN:  Exactly.  And the psychological condition, if that‘s where they want to go, they really need to go all the way and go for an insanity...

ABRAMS:  Yes.

FILAN:  ... but that‘s not going to let her walk out the door.  That‘s going to put her in a mental institution. 

ABRAMS:  Right.  And I guess you could argue that it‘s been both.  You could say oh, you know, she was in this mental state and she didn‘t mean to shoot him, but...

FILAN:  So she was nuts at the time, she‘s fine now, let her go home. 

ABRAMS:  Yes.  All right.  Tonya Powers and Susan Filan, thanks a lot.

POWERS:  Thank you.

ABRAMS:  Coming up, finally some hard statistics on the number of teachers having sex with students and at least in one big city it looks like the number is actually on the rise.  It‘s not just media created hype.

And later, the high-level government job that no one wants.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, every time we talk about teachers having sex with students, people come on and say oh, it‘s just media created hype.  It hasn‘t changed in this country.  Not the case in one big city.  We‘ve got some numbers.  (INAUDIBLE)

(COMMERCIAL BREAK)

(BEGIN AUDIOTAPE)

BOY:  So what time are you planning on heading over?

LAFAVE:  Are you sure?  Like, I just feel—I mean I don‘t want you lying to your mom.  I mean it‘s like...

BOY:  No, it‘s all right.  She‘s gone in a sales meeting, like all day.

LAFAVE:  You‘re sure?

BOY:  Yes.

(END AUDIOTAPE)

ABRAMS:  Debra LaFave planning a rendezvous with a then 14-year-old student.  She‘s just one of the teachers who has grabbed headlines for having sex with students.  The question has been bounced around recently, are there more teachers actually engaging in inappropriate relationships or acts with students or are we just hearing more about it because of the media coverage.  Well, we‘re getting a first look at some statistics that seem to support the notion there are more incidents of sexual misconduct with teachers and students. 

The special commissioner for investigation for the New York City School District has collected statistics since 1992.  They show an increase in reports of sexual misconduct by teachers from 217 in 1992 to an all-time high of 643 in 2001 and a total of 525 last year. 

Joining me now is special commissioner of investigation for the New York City School District, Richard Condon, and “New York Daily News” reporter Erin Einhorn.  They did a cover story on this issue this weekend.  Thanks to both of you for coming on the program.  Appreciate it.

All right.  Commissioner Condon, I mean is it that simple?  Is the bottom line that there are simply more cases being reported now than 10 years ago? 

RICHARD CONDON, COMMISSIONER OF INVESTIGATION, NYC SCHOOLS:  There are more cases of sexual misconduct being reported and there are more cases overall being reported.  Our caseload went up by about 20 percent last year and the sexual misconduct part of it went up by about the same. 

ABRAMS:  Let me read some of the statistics.  1992 to 2005, in ‘92, there were 34 substantiated sexual misconduct cases.  In ‘96, 71 substantiated sexual misconduct cases.  In 2005, 95 substantiated sexual misconduct cases. 

And then in terms of the number in the last two years of cases opened in New York City over the last two years, 69 substantiated in 2004, 92 in New York City in 2005.  Erin Einhorn, what did you find as you began digging into this topic?  I mean it does seem we hear a lot about people saying oh it‘s just the media created hype on this issue. 

ERIN EINHORN, “NEW YORK DAILY NEWS” REPORTER:  Well I think the media created hype on the issue leads in a way to the increased number of reports, because as more people hear about it, they are perhaps more vigilant in their schools, in their homes among their friends.  They might be more likely to report an allegation, which would lead to the higher number of reports. 

ABRAMS:  It‘s a fair point.  Professor Shakeshaft joins us now.  From Hofstra University, Charol Shakeshaft joins us on the line.  She has studied this topic.  Thanks a lot for joining us, Professor.  Professor, I read that you were saying that almost seven percent of students have been approached for—by educators in what can be characterized as unwanted sexual advances? 

CHAROL SHAKESHAFT, HOFSTRA UNIVERSITY PROFESSOR(via phone):  Yes, that‘s true.  Those are unwanted physical sexual advances.  It rises to 10 percent if we include verbal or visual kinds of harassment.

ABRAMS:  That‘s an enormous number.  I mean up to almost seven percent?

SHAKESHAFT:  Yes.  I—they seem an enormous number, but we have data from national studies of kids who respond to questions about have these things ever happened to you and just giving specific incidents and then asking them, well, when did it happen, where did it happen, who was it with and seven percent say that they‘ve had a physical sexual contact from a teacher or another school employee, sometime during their school career. 

ABRAMS:  And you did the study nationwide? 

SHAKESHAFT:  Yes.  The—we had about 3,000 respondents representing different kinds of kids from all over the United States. 

ABRAMS:  All right.  Commissioner Condon, so what‘s being done now to deal with this what seems to be a growing problem? 

CONDON:  Well I think one of the things that‘s being done, it‘s a good thing, is the fact that the reporting has gotten much better.  The fact that a number of complaints is going up every year means that the people in the school system are reporting it, and that‘s the result of two things. 

One, we are very strict about reporting.  If someone doesn‘t report some kind of sexual misconduct, we will charge that person with administrative failure and so we get people to report that way and secondly I agree with Erin and the fact that I think the media has brought this to the attention of a lot of people.  The downside to all of this is that it‘s much easier for a teacher or someone else in a school to engage a student in a sexual relationship than it was years ago. 

ABRAMS:  Why? 

CONDON:  Cell phones, e-mail, instant messaging.  If I have a cell phone and a student has a cell phone, I can call that student and that student‘s parents have no idea that I‘m calling the student, talking to the student, and on the other hand, if I‘m married, and I‘m calling the student, I‘m using a cell phone, so my wife is not learning about the fact that I‘m having a conversation with this student.  So I think the cell phones and the e-mails have made it much easier for the people in authority in the schools to contact the students. 

ABRAMS:  All right.

CONDON:  Now the bad part about that, for them, is when we get the e-mails, and we...

ABRAMS:  Yes.  Yes. 

CONDON:  ... the cell phones...

ABRAMS:  Yes.

CONDON:  ... it sort of establishes the relationship. 

ABRAMS:  Right.  Erin, what happened to a lot of the teachers or most of the teachers that you investigated their stories?  I mean there were pictures in “The Daily News” of the various teachers who were involved and some incidents I hadn‘t even heard about.  What did you find in terms of the totality?  Were most of them punished?

EINHORN:  Well the ones who committed serious—who had serious

sexual interaction with students, such as sexual intercourse, none of them

I counted 19.  I suspect there‘s quite a few more, because we were only able to review those investigations involving teachers and educators who‘ve already had administrative hearings, so of the cases I reviewed, I found 19 with what I consider serious interaction and of them none are on the payroll.  Some resigned.  Some were allowed to retire. 

ABRAMS:  What about criminally though?

EINHORN:  Of the 19 I looked at, there was one that led to criminal charges. 

ABRAMS:  Just one? 

EINHORN:  Yes, the others, either the students or their families declined to press charges or in a lot of cases the students were 17, which is the age of consent in New York, and so there was no crime.  The student was legally able to consent, so there was a crime in terms of the school.  They weren‘t allowed to continue teaching there any longer.

ABRAMS:  Yes.

EINHORN:  And they weren‘t all teachers.  Some were you know school custodians or school aides or a couple of cases of guidance counselors. 

ABRAMS:  I think that‘s an important point to add.  All right.

EINHORN:  Yes.

ABRAMS:  Richard Condon, Erin Einhorn and Professor Shakeshaft, thanks a lot. 

UNIDENTIFIED FEMALE:  Thank you.

ABRAMS:  Coming up, it‘s that time of year.  Many college seniors brushing up their resumes looking for a job.  There may be one high-level government job where in the past no real experience was necessary.  Not that guy.  (INAUDIBLE) It‘s my “Closing Argument”. 

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

Police are looking for Sylvester Johnson, 34, five-seven, 245.  He was convicted of attempted rape, hasn‘t registered his address with the state.  If you‘ve got any information on his whereabouts, please contact the North Carolina State Bureau of Investigation, 919-662-4500. 

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—you‘d think the job running the entire Federal Emergency Management Agency would be a coveted position.  Then again, after seeing how quickly Michael “Brownie” Brown sunk from doing a heck of a job to doing a heck of a lot of explaining about the disastrous Hurricane Katrina response, it should hardly come as a surprise that according to “The New York Times” Bush administration officials asked the country‘s most seasoned disaster response experts to help out, to join in the effort, and that almost all of them said no.  Let me give you the quote. 

It should hardly come as a surprise that according to “The New York Times”—quote—“Bush administration officials asked the country‘s most seasoned disaster response experts to consider the job of a lifetime, FEMA director, but again and again, the response the past several months was the same, no thanks.”

Maybe the search committee is restricting its search too much.  After all, Brownie‘s only experience in emergency management was effectively as an intern in Edmond, Oklahoma.  I‘m sure there‘s some eager youngsters out there who have been their school fire monitors.  Or how about George Johnson, he could have the inside track.  After all, he holds the same job that Michael Brown held for 10 years from 1991 to 2001, the judges and stewards commissioner for the Arabian Horse Association.  But it is nice to see this time around the most qualified folks are being pursued, but it‘s hardly surprising that many of them don‘t want the gig. 

Coming up, your e-mails on the Duke lacrosse rape allegations.  Coming up. 

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  I‘ve had my say, now it‘s time for “Your Rebuttal”.  Lawyers for some of the Duke lacrosse players have suggested the exotic dancer‘s rape allegation may have been a setup, even though authorities have collected some personal items of hers apparently from the bathroom where she says she was raped and beaten.

Jerry in Austin, Texas asks, “If these guys did rape her, does anyone believe they‘d leave her stuff in the bathroom, just lying around to be found?”

Craig Henry, “Maybe it‘s just me, but the coverage of Duke‘s lacrosse team has a much different tone than the coverage of the Kobe Bryant case.”

You know, Craig, a lot of people have been writing in with similar sentiments, suggesting maybe the media is unfairly treating these cases differently.  The answer is they have been treated differently, but there is a reason.  Because Kobe Bryant was charged with a crime.  No one has been charged in this case. 

And second, in the Bryant case, he conceded he had sex with the woman.  So far in this case the young men deny having sex at all.  All of that may change, but that‘s the difference up to this point based on the facts.  Nothing more.  Nothing less.

Scott Peterson‘s family and friends offering a $250,000 reward for the

finding Laci‘s killer. 

Doug Jacobs, “Two hundred and fifty thousand dollar reward finding Laci‘s killer?  Dan, I know who it is.  Before I tell you, will you answer this question for me?  Do you know the directions to the San Quentin penitentiary?  The Petersons can meet me there.”

“HARDBALL” with Chris Matthews up next.

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

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