updated 4/4/2006 11:15:10 AM ET 2006-04-04T15:15:10

Guests: James Gordon Meek, Alvin Black, Susan Filan, Seyward Darby, James Myart, Michael Raffauf, Anita Whirley, Tonya Powers, Susan Filan, Richard Condon, Erin Einhorn, Charol Shakeshaft

DAN ABRAMS, MSNBC ANCHOR:  Coming up, juror in the death penalty phase of Zacarias Moussaoui‘s trial have reached a verdict.  The 9/11 conspirator is eligible for the death penalty.  The program about justice starts now.

First up on the docket, breaking news from the federal courthouse in Alexandria, a Virginia.  Zacarias Moussaoui, the only member of al Qaeda to face trial for the 9/11 attacks here in the U.S. is eligible for the death penalty. 

(BEGIN VIDEO CLIP)

EDWARD A. ADAMS, U.S. DISTRICT COURT SPOKESMAN:  As to count one, conspiracy to commit acts of terrorism, transcending national boundaries, the jury was asked whether it unanimously finds the government has established beyond a reasonable doubt the following four facts.  Number one, the defendant was 18 years 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 to 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 the person other than one of the participants in the effects.  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.  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. 

(END VIDEO CLIP)

ABRAMS:  Moussaoui refused to stand as the verdict was read.  He called out, quote, you‘ll never get my blood, God curse you all, once it is over.  Another phase of the trial will begin shortly.  Expect some very emotional testimony from relatives of the 9/11 victims as the same jury that found him eligible for death penalty, will decide if that is actually the penalty he‘ll receive. 

James Gordon Meek is the correspondent for the New York Daily News.  He was in the courtroom and joins us now.  Thanks for coming back on the program.  Rather than Moussaoui reacting sort of emotionally, relief, anger, anything else, it sounds like he was spouting the same sort of rhetoric he‘s been spouting throughout this case. 

JAMES GORDON MEEK, NEW YORK DAILY NEWS:  Yes, he was.  It was very interesting.  He waits until the jury leaves the room before he screams things like you‘ll never get my blood.  God curse you all. 

Right before the hearing began it was actually delayed a few minutes because Moussaoui was acting up in his holding cell adjacent to the courtroom.  We could all hear him screaming at the marshals and it was French or Arabic, it was hard to hear.  Then he was led in after a few minutes and slouched in his chair and seemed very nonplused by the whole thing as they read the verdict. 

ABRAMS:  Were there 9/11 victim‘s family members in the courtroom? 

MEEK:  There were a few.  There was a rotating pool of family members who come in from another room that has a television monitor where they watched on closed circuit.  They seemed to be very riveted by, it was only a 10-minute hearing, some of them were very riveted.  Some were very overcome.  One I saw was consoled by a marshal immediately afterwards.  She seemed to be tearing up. 

ABRAMS:  Let me ask you this: We‘re now at the point where a jury will decide either the aggravating circumstances, the reasons to impose the death penalty outweigh the mitigating ones.  I can‘t see how many mitigating circumstances there will be here.  But with that said, has Moussaoui said specifically whether he wants the death penalty or not? 

MEEK:  I don‘t think he has said that.  He has answered questions about whether or not an execution at the hands of the United States would be martyrdom or not. 

ABRAMS:  Would it be according to him? 

MEEK:  I think he said it could be.  He said if you fought the good fight, it could be considered martyrdom.  He also announced when he pleaded guilty a year ago that he was going to fight the death penalty.  So I would say that kind of goes against it. 

This guy, you know, you never know what he‘s going to say.  He could surprise us all.  You mentioned mitigating factors.  I think the defense will mention some mitigating factors, possibly to do with his family.  But he can come right back out and mitigate the mitigating factors. 

ABRAMS:  I‘m sure they‘ll talk about his mental state.  I‘m sure his lawyers, over his objections, because it has been him against his lawyers.  His lawyers will say he‘s not mentally stable.  And he‘ll say he is. 

MEEK:  That‘s probable or possible.  I know they had a mental health expert to watch his testimony.  The problem is his testimony, when he took the stand in a very dramatic way and made, given my knowledge of al Qaeda, 9/11, were some pretty wild claims about his flying a fifth plane into the White House on that day. 

I think he was still not, he was a very solid witness in the sense that he was very calm, measured.  He answered all the questions.  He was deferential to the judge that day.  He was apologetic for speaking in a thick French accent.  They‘re plan to say the guy is cuckoo for Cocoa Puffs took a hit after he took the stand. 

ABRAMS:  James Gordon Meek.  Thanks a lot.  As always. 

MEEK:  A pleasure to be here, sir. 

ABRAMS:  Threats, assaults, even rumors of a planned drive-by shooting

that‘s plaguing my alma mater, Duke University, in the wake of the allegation that members of the school‘s lacrosse team raped, sodomized, strangled and beat an exotic dancer hired to perform at a party three weeks ago.

There‘s a report that the players were at a bar a week-and-a-half after the incident, seemingly partying it up.  This, according to a Duke grad, currently in law school at UNC and saw the players at the bar.  Quote, “Lacrosse players ordered round after round of shots, at times slamming the glasses down on tables and cheering Duke lacrosse.  The players had no idea who was analyzing them, nor did they really seem to care.  While I drank a Corona, watching them get plastered and stumbling, yelling about Duke lacrosse, the rest of the bar looked on with derision and repulsion.  Their acts conveyed a sense that the severity of the situation is lost on them.”

So how are the players now being received on campus, and is all of this negative attention for the whole lacrosse team fair?

Joining me now on the phone, Seyward Darby, editor for Duke student newspaper “The Chronicle,” and Alvin Black, who was once—I guess he‘s characterizing it as a ball boy for the team—lives two blocks from the house where the alleged rape occurred.  And Susan Filan, MSNBC legal analyst, a former prosecutor, joins us as well.  Thanks to all of you.

All right.  Alvin Black, let me start with you.  First, explain to me how it is that you got to meet the players?

ALVIN BLACK, FORMER BALL BOY FOR LACROSSE TEAM:  When I was younger, probably like 12 or so, I went over to the field and I was just starting out playing lacrosse and everything, and saw they were the actual Duke lacrosse team.  And I was just shocked.  So I went over and tried to talk to them.  And they talked back, and they were just really friendly, really accepting and everything.

ABRAMS:  That was 6 years ago, right, Alvin?  You‘ve gotten to know the players on this current team as well, right?

BLACK:  Um-hmm, yeah.

ABRAMS:  How did that happen?  Were you serving as—is a ball boy the right term to use?

BLACK:  Well, yeah, ball boy, pretty much.

ABRAMS:  And you were serving as a ball boy for this team, the team of 2005-2006?

BLACK:  No, I was no longer a ball boy, but I did know a lot of the players.

ABRAMS:  Let me ask you—we see the picture, you‘re an African American young man, you worked with some of these players—did you ever hear racial slurs, because one of the allegations here is that one of them was yelling on the street towards one of these women a racial slur, and that when they arrived, they were yelling racial slurs as well.

BLACK:  Uh, no.  None.  Like, none of them ever disrespected me.  They were all just cool, down-to-earth people—college students.

ABRAMS:  And you‘re a fellow lacrosse player, right?

BLACK:  Yes, I do play lacrosse.

ABRAMS:  So you‘re very supportive of the players, and it sounds like you don‘t necessarily believe the allegations?

BLACK:  No, I do not believe the allegations at all.

ABRAMS:  How can you be so sure?

BLACK:  Well, besides just knowing the guys—they‘re not—they don‘t seem like violent rapists who like to sodomize strippers.  Of course I could say this, but it‘s been said before about people who flipped out and murdered mass groups of people, but these people did not—they don‘t come off as people that do stuff like this.

Of course, they party and everything, but they‘re college students.  I don‘t think they took it to this extreme.  I highly doubt they took it to this extreme.

ABRAMS:  Have they said anything to you about the media attention that this story has been getting?

BLACK:  No.  But I‘ve seen a couple players around, and they just seem to be, like, whatever, you know?  It‘s not a big deal to them.  They‘re not going to go out of their way and change the way they are because of this.

ABRAMS:  Seyward Darby, editor of “The Chronicle,” is that part of the problem, that some of the students in the Duke community want to see more contrition on the part of the players?

SEYWARD DARBY, DUKE UNIVERSITY STUDENT NEWSPAPER EDITOR:  There‘s definitely a vocal group on campus and in the community that are not satisfied by the lacrosse team‘s response.  They have remained tight-lipped about their side of the story, and they are going about their day-to-day lives, eating on campus, going to class, and some people in the community are saying that that‘s evidence of just being nonchalant about the whole thing, and that they should be coming forward and giving their side of the story.  Others say that no, they‘re innocent until proven guilty, so there‘s no reason for them to come forward at this point if they don‘t want to. 

ABRAMS:  When you say a vocal group, I mean, where—if there was a poll taken at Duke tomorrow, where do you think that things would come out in turns of, you know, should the players be treated more harshly, are they be treating fairly, even?  What is your sense of the community as a whole? 

DARBY:  My sense is that if you took a poll, you would not get any sort of even percentage, 50, 50, 70, 30, nothing.  I think that there are a lot of different opinions that really varies.  Some people are just saying, no, I think they are guilty.  Other people are saying, no, I think they are innocent. 

But then there are a lot of people who are really down the middle, and I think are kind of on the fence, trying to decide, might waiver from one side to the other, but then have very strong opinions about the lacrosse team itself and just the culture of the lacrosse team or the administration‘s handling of the entire situation.  And so a poll, I think, you would come up with a lot of different scattered numbers.

ABRAMS:  Are they going to classes now?  I mean, are they living their every day lives?  Or are they holed up somewhere? 

DARBY:  I saw one today.  I was down getting something to eat, and I saw one pass by me in a bagel store.  So, I mean, as far as I know, most of them are still going to class.  We have heard some reports that some of them have left campus.  And we do know that the three gentlemen who lived at 610 Buchanan have left that house.  But we‘ve also heard that they‘ve been in class answering questions, going about their day to day lives. 

ABRAMS:  Alvin Black, when is the last time you talked to any of the players? 

BLACK:  It‘s been a little while.  Yes.  Not very recent. 

ABRAMS:  But since the incident occurred, right? 

BLACK:  No.  I haven‘t talked to any of them. 

ABRAMS:  OK.  Susan Filan, the prosecutor has come out and made the following statement.  I want you to listen to it.  This was on this program on Friday. 

(BEGIN VIDEO CLIP)         

MIKE NIFONG, DURHAM, NC DISTRICT ATTORNEY:  Obviously, if there is a DNA match then that‘s very strong evidence.  But the absence of DNA doesn‘t necessarily mean anything other than no DNA was left behind.  DNA is a relative late comer to the forensic scene.  There have been many successful rape prosecutions involving nothing more than the statement by the victim that she was raped by a particular individual. 

(END VIDEO CLIP)             

ABRAMS:  Susan, the problem is in one of the police affidavits, they did specifically say that they expected that the DNA would demonstrate who the perpetrators were in this case.  And that sure sounds like that they were saying the police, at least, that there would be DNA left based on her account. 

SUSAN FILAN, FORMER PROSECUTOR:  Yes.  It does sound like based on what she told police and law enforcement and other investigators and based on what happened at the hospital, remember, she did submit to a rape exam kit.  They had to have taken swabs from her.  And it seems like based on the swabs that were taken, they did believe that there was going to be a yield of DNA. 

ABRAMS:  But now it sure sounds like the D.A. is saying, don‘t expect any DNA results, and The lawyers for them are coming out and saying, they‘re going to find nothing. 

FILAN:  Well, it is interesting.  Is the D.A. sort of back peddling now because the defense‘s position is there was no sex?  Or has the D.A.  learned other things like they used a condom or they didn‘t—forgive me for being so graphic—ejaculate.  I mean, has new information come to light? 

The difficulty with there not being a DNA match is her story is that she was grabbed from behind, and she can‘t identify her assailants.  It would not be possible to arrest all 46 as sort of a, you know, blame everybody until we find out who.

And unless some of these guys crack and talk without the DNA, I think the prosecutor may have a pretty tough case.

ABRAMS:  Very quickly.  Seyward, threats, are there threats at the school?

DARBY:  Yes, there has been one assault, we know, on a student off campus.  And several students have been threatened.  One student was punched in the back of the head at a local restaurant after being called a rapist essentially. 

And several other students were sitting on a front porch on Buchanan, and cars passed and one young man stuck his hand out the window in the shape of a gun and said you‘ll see.  And they have increased police patrols in the area in response to such threats.

ABRAMS:  That‘s horrible.  As a Duke alum and someone who loves the school very much, it is really sad for me to hear about this.  I really hope everything comes down a level, we wait for the results, let the prosecutor do his work. 

Seyward Darby and Alvin Black, thanks a lot.               

DARBY:  Thank you so much.

ABRAMS:  Susan Filan, if you could stick around.

Coming up, prosecutors deciding whether to charge a U.S. Congresswoman for allegedly striking a Capitol Hill policeman.  Her lawyer says she was just a victim of racism.  They‘ll join us live. 

Plus, for the first time, we‘ve got some hard stats on the number of teachers having sex with their students.  And at least in one big city, the number is on the rise, not just media-created hype.

Your emails abramsreport@msnbc.com

(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, on Friday, we told you about the reward for finding the killer of Laci Peterson that Scott Peterson‘s family is now offering up.  Many of you writing in with your ideas.

(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 for 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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