updated 4/11/2006 12:15:53 PM ET 2006-04-11T16:15:53

Guests: Yale Galanter, Victor Weedn, James Gordon Meek, Elizabeth Gleick, Don Bosch, Geoffrey Fieger, Kimberly Harris, Brian Wice

DAN ABRAMS, HOST:  Coming up, the DNA results are in in the Duke lacrosse rape investigation.  The defense attorneys say no DNA from any player found anywhere on the woman making the accusations.  The program about justice starts now. 

Hi, everyone.  Live from Detroit where the city is outraged over what 911 operators failed to do when this boy called to say his mother had collapsed.  Instead of sending police, the 911 operator treated his call as a prank.  We‘ll hear from the boy and his attorney Geoffrey Fieger later in the program. 

But first, breaking news in the Duke lacrosse rape investigation. 

This came just moments ago. 

(BEGIN VIDEO CLIP)

WADE SMITH, ATTORNEY FOR DUKE LACROSSE PLAYER:  No DNA material from any young man tested was present on the body of this complaining woman, not present within her body, not present on the surface of her body, and not present on any of her belongings. 

(END VIDEO CLIP)

ABRAMS:  And not, they say, on her finger nails either.  Does this mean the case is over?  Does this mean that the DA is going to drop this investigation?  Joining me now, MSNBC legal analyst and former prosecutor, Susan Filan; criminal defense attorney Yale Galanter; and on the phone, Dr.  Victor Weedn, a forensic expert from the Duquesne University Law School. 

Susan, this is a big bombshell.  And I would say it is more of a bombshell that no DNA was found on her finger nails than inside her body. 

SUSAN FILAN, MSNBC LEGAL ANALYST:  Well, it is a bombshell both ways.  Because if—I mean, as I said earlier on the show, Dan, we now know that there were more than the lacrosse players at the party.  So they have to widen the universe of people that they are looking at.  They can‘t just look at these 46 people. 

But if she knows, and I don‘t know that she does, that one or two or the three of the people that she‘s accusing of gang raping her was a lacrosse player, and the lacrosse players‘ DNA now exonerates them, it is very significant. 

As a prosecutor, I would take three steps back now and rethink and reexamine my position in this case. 

ABRAMS:  But that‘s the question.  Does it exonerate them?  I mean, does it mean that they—as their lawyers are saying, they are saying they hope this and this alone means that the DA is going to drop this investigation? 

FILAN:  I doubt DA is going to drop the investigation.  But whether it exonerates them, as you know, Dan, there‘s really two issues at play here.  One is, can the state prove its case beyond a reasonable doubt?  And are these boys actually innocent?  And sometimes someone is not innocent but they‘re not convicted because there isn‘t enough proof.  It may be very difficult now to get beyond that high hurdle of proof beyond a reasonable doubt.  But no, this doesn‘t exonerate them.  It doesn‘t mean that they didn‘t do it.  It makes a real tough case with proof problems. 

ABRAMS:  All right.  Let me play a piece of sound from the DA, this is from March 31st.  He was on this program, and he was addressing this very question which is, what happens if it turns out that the DNA comes up negative, that they don‘t have anything on any of these young men? 

Here‘s what he said. 

(BEGIN VIDEO CLIP)

MIKE NIFONG, DURHAM, NC, DISTRICT ATTORNEY:  Obviously, if there is a DNA match, then that is very strong evidence.  But the absence of DNA doesn‘t necessarily mean anything other than that no DNA was left behind.  DNA is a relative latecomer 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:  Yale Galanter, that is true.  But this also comes on the heels of new information, again, according to the defense attorneys, that there are photos of the accuser at the party with bruises on her body which the defense team says proves that she didn‘t get the bruises as a result of any rape but in fact, she came and was dancing at the party and was at the party with those bruises. 

YALE GALANTER, CRIMINAL DEFENSE ATTORNEY:  Dan, the defense has done an exceedingly good job at outlining, having a very precise time line here.  The 47 boys drew the line in the sand and said, not only did we not have sex with this woman, everything she is saying is false. 

The defense released her prior record.  The defense has done the interview of the father along with some tapes that was done on this network by Rita Cosby.  They have outlined this precisely.  They‘ve been right every step of the way.  This blows a huge case (sic) in the prosecutor‘s case.  And Susan is right on the money when she speaks that this prosecution team needs to take three steps back and reassess. 

Because what they‘re left with is a complaining witness‘s word, whose credibility is in serious question, against 46 or 47 boys who are going to come into a courtroom and say, it did not occur.  That is not anywhere near proof beyond a reasonable doubt.  This investigation needs to stop. 

ABRAMS:  And Susan has been very tough on the defense team up to this point.  But it seems that this new evidence is even making her question the initial position of the DA.  I‘ll give her a chance to respond to that in a minute.  But here again, some sound from only minutes ago from the defense attorneys making the announcement that no DNA, not on the fingernails, not inside the body, of the accuser has matched any of the young men who were in that house. 

(BEGIN VIDEO CLIP)

JOSEPH CHESIRE, ATTY FOR DUKE LACROSSE PLAYERS:  I think that it is a false accusation that has been made for some reason against these boys.  And I think that it has been used to hurt their lives forever and to tear this community apart. 

(END VIDEO CLIP)

ABRAMS:  Let me do this.  I want to play another piece of sound because I think this piece is crucial.  There was some DNA found.  It was not found on the accuser.  But there was DNA found.  It doesn‘t seem particularly significant to me but I want to make sure that Susan and Yale and Dr. Victor Weedn agree.  So here again, the defense attorneys talking about DNA that was found at the home. 

(BEGIN VIDEO CLIP)

CHESIRE:  There was DNA found of two of the boys on a towel and on the floor.  But you need to remember that none of that matches up with her in any way, shape or form, and that the bathroom where this DNA was found happened to be the bathroom of the two boys that the DNA was found.  And any expert and any person in the world will tell you that your DNA is in your bathroom. 

(END VIDEO CLIP)

ABRAMS:  Well, Dr. Victor Weedn is an expert.  So let‘s ask him.  Any significance to the case? 

DR. VICTOR WEEDN, FORENSICS EXPERT:  Well, I think the statement that he made that your DNA will be in the bathroom may or may not be true.  You may find that there—I certainly think there are reasons to find it but I also think you might not find it.  But to say that that is evidence of a sexual assault here, I think, would be a far stretch.  I do believe that this is a big hole in the prosecution case and a big hurdle.  And I agree with Susan that he should reassess before going on.  But I also believe, as the DA has said, that you don‘t necessarily need DNA to prove a sexual assault.  That is also true. 

ABRAMS:  But does it matter, doctor, that in the affidavit—I mean, these defense attorneys keep citing the affidavit that was filed.  And in it, it said that the reason they wanted DNA from these 46 young men is because they felt that it would separate out effectively the guilty from the innocent.  And then the DA has taken another position a little bit later which said, as we played a moment ago, well, the DNA doesn‘t make or break it. 

WEEDN:  I agree with you that these are not truly consistent statements.  It is a change.  I do believe I‘ve seen other prosecutors do the same thing.  Kind of step back after saying, well, basically, they still believe the case.  And I think that‘s a dangerous road to go when the evidence starts showing other ways. 

However, a negative shouldn‘t be over-relied on as well. 

ABRAMS:  All right.  Here is Bob Ekstrand, one of the attorneys for the players, talking this morning about this issue of the photographs that have recently been discovered, they say, with time stamps on them which they say demonstrate that this woman had bruises on her body before the time she claims that she was allegedly assaulted in that home. 

(BEGIN VIDEO CLIP)

BOB EKSTRAND, ATTORNEY FOR DUKE LACROSS PLAYERS:  The pictures reveal that there are a number of different types of wounds.  But most importantly, there are wounds of obvious recent origin: open lacerations, not bleeding but not healed at all.  They would look to anybody to be quite recent at the time she arrived. 

(END VIDEO CLIP)

ABRAMS:  Susan Filan, you‘ve got that and you‘ve got this new revelation that none of the DNA matches these young men and there are going to be a lot of questions. 

FILAN:  Yes.  There‘s definitely going to be a lot of questions now, because when her credibility is going to be challenged if this ever goes to court and it ever goes to trial on cross-exam  by impeaching her for prior convictions, and when there is no corroborative DNA, and now, the only thing we really have left that I could call a fact that can‘t be called into question is the medical examiner, and if that‘s now called into question because the bruises are so fresh that you can‘t tell whether they happened before the alleged attack or during the alleged attack or 30 minutes after the alleged attack, we‘ve got doubt, doubt, doubt, which again doesn‘t mean it didn‘t happen.  But it may mean that you can‘t prove it. 

Now as to whether the DA is going to continue, there are two standards at stake here.  One is probable cause.  You need probable cause to arrest.  Is it more likely than not that it happened?  But you need proof beyond a reasonable doubt to convict.  So the ethical question that the prosecutor is going to have to ask himself is, is it ethical to charge a case where he thinks—a neutral, excuse me, judge thinks there is probable cause, but where it is very unlikely that there is going to be a conviction? 

Can you arrest when you can‘t convict? 

ABRAMS:  Here‘s what the DA said on this program on March 28th.  He says he is convinced that there was a rape and here is why. 

(BEGIN VIDEO CLIP)

NIFONG:  I am convinced that had there was a rape.  Yes, sir. 

ABRAMS:  And why are you so convinced of that? 

NIFONG:  The circumstances of the case are not suggestive of the alternate explanation that has been suggested by some of the members of the situation.  There is evidence of trauma in the victim‘s vaginal area that was noted when she was examined by a nurse at the hospital.  And her general demeanor was suggestive of the fact that she had been through a traumatic situation. 

(END VIDEO CLIP)

ABRAMS:  All right.  Dr. Victor Weedn, could they go to trial, do you think, with that, knowing now, let‘s assume for a moment the defense attorneys are right, that there is no DNA evidence, that they do have these photos which show certain bruising on the alleged victim before the time that this attack allegedly occurred, could they go to trial just with what you heard the DA say? 

WEEDN:  Yes.  I think it is possible.  It very important to point out that the injuries on the photographs that are—keep being talked about are probably very different than what the DA just described, which are vaginal injuries.  It is the vaginal injuries that are most concerning.  Now I haven‘t heard how fresh those are.  There is a real issue here of whether that could have been from prior.

But certainly if there is vaginal injuries, if you think it happened at the party, then the DA should proceed on that. 

ABRAMS:  All right.  Susan Filan, if you are the DA now, do you now bring the accuser, alleged victim back into your office to ask more questions?  Or have you already prepared for this possibility? 

FILAN:  Well, you know, that is a great question, Dan.  And I can‘t answer that.  I know he‘s been out of town.  I don‘t know if he has been talking to her.  I 0don‘t know if he‘s had other investigators talking to her.  He can‘t just talk to her himself and make his own opinion.  He has got to have a team of law enforcement, medical examiners.  He can‘t just do this by himself in a vacuum. 

But I assume—and I assume they‘ve been doing that all along.  But if it were me today, you bet I would get her back in.  I would absolutely get her back in, because if I‘m going to go forward with this case, I‘ve got to see her react to me saying, you‘ve got a prior record that‘s coming out.  There are these photographs they‘re going to call into question your injury.  And there is no DNA, bang, bang, bang. 

Can she take it?  Does she still stand strong in her accusation?  Because if she does, even though it may be unpopular and it may be difficult, he does have a duty to pursue this case.  It may be really tough but you can‘t look a complainant in the eye and say, I don‘t believe you.  That is not the prosecutor‘s job. 

The prosecutor‘s job is to assess probable cause and proof beyond a reasonable doubt.  And just because some cases look like they are impossible to make doesn‘t mean you don‘t bring them or shouldn‘t bring them or can‘t bring them.  You have a duty to the victim as well as to the accuser, whereas the defense lawyer‘s duty is only to the accused. 

ABRAMS:  Yes, all right.  Look, as I have said, I think that the bombshell part of this in particular was that there is no DNA on the finger nails either.  Because remember, the claim, of course, was that her finger nails came off when she was probably fighting off her attackers.  That to me is a very, very big piece in this case. 

But we will continue to be the program about justice and the program to watch this story on as it continues, because it sounds like there are going to be continuing developments.  Yale Galanter and Dr. Victor Weedn, thanks a lot.  Susan Filan is going to stick around. 

Coming up, emotional testimony at the death penalty trial for al Qaeda conspirator Zacarias Moussaoui.  A father tells jurors about his last phone call with his son (INAUDIBLE) plane in his family (INAUDIBLE), crashed into the World Trade Center.  The judge is now warning prosecutors too much emotional testimony could backfire? 

Plus, the big story here in.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  The horrors of the 9/11 attacks as fresh as if they happened yesterday.  Testimony from victims‘ families at the Zacarias Moussaoui sentencing trial.  A confessed member of al Qaeda, Moussaoui could get the death penalty for failing to tell the FBI what he knew about the 9/11 plot. 

Prosecutors are trying to emphasize what that failure meant with testimony from some 45 people who were either injured themselves or lost relatives on 9/11.  73-year-old Lee Hampton (ph) was on the phone with his son Peter on United 175, with his family moments before it hit the World Trade Center. 

Quote: “As we were talking, all of a sudden he stopped and said, oh my God, oh my God, oh my God.  I thought I heard a woman scream.  I looked over at the television set and saw a plane flying into the building.” 

James Gordon Meek is a reporter for The New York Daily News.  He has been covering the story and has been in court today.  Thanks for coming back on the program, appreciate it. 

JAMES GORDON MEEK, REPORTER, NEW YORK DAILY NEWS:  Thanks, Dan.

ABRAMS:  All right.  So first of all, let me ask you, how is Moussaoui reacting to what has got to be very emotional testimony? 

MEEK:  Well, I think we saw his demeanor change, Dan, from last Thursday when Rudy Giuliani was testifying and he was watching videos of airplanes hitting the buildings, and he seemed to be gloating about it.  He was smiling and seemed to be very pleased about it, to later that day when we had some other witnesses begin to talk about their personal losses into today where we had 15 witnesses talking about just the worst personal devastation any of us could ever imagine, losing brothers, sisters, sons, spouse.  Moussaoui was very sullen.  He was very somber.  He did not react to much at all.  So he seemed to be enthralled by.

ABRAMS:  I was going to say, you‘re not willing to go as far as to say that he seemed remorseful. 

MEEK:  I don‘t know, it is hard to tell with this guy.  He is very calculating.  I did note at one point, you know, he is known for these outbursts in court, as you know, Dan.  But at one point—he always waits until the jury leaves the room.  And I watched him craning his neck to wait until the door just closed as the jury left the courtroom.  And then he got up and did his Bruce Springsteen impression again in saying “Burn in the USA.” 

He also waits until the judge and jury leave.  So he is a very calculating guy.  I don‘t know if he feels remorse but he has been at least respectful. 

ABRAMS:  What is the judge doing warning the prosecutors about how the emotional testimony may backfire?  What was the judge talking about?

MEEK:  I think the judge advised them to sort of cut down on the number of pictures, for example, of family photos that were being shown with each of these witnesses talking about a lost loved one.  I think there was a sense that they were going to show—the government was going to show as many as 10 photographs.  And we were talking wedding photos, birthday pictures, the kinds of things that you and I have in our scrap books with our families. 

But they whittled that down, as they put to it, to about five pictures per witness.  And that was enough.  That was enough to bring the entire courtroom—audible sobbing everywhere you turned.  It was a heartbreaking day to be sitting in that courtroom, going into people‘s most private misery of that tragedy. 

ABRAMS:  I remember sitting in the courtroom during the Timothy McVeigh phase of this case and hearing the family members and some people who literally had been maimed in the incident come in and describe what had happened to them and their loss, et cetera.  It was one of the hardest days of my life to sit there.  And I‘m sure that it has not been an easy experience for you, either.  But thanks a lot for.

MEEK:  It has brought—thank you very much.  It has brought a lot back. 

ABRAMS:  Yes.  All right, James Gordon Meek, appreciate it. 

Now to Tennessee in the case of the woman accused of killing her preacher husband.  Did you watch “The Sopranos” last night?  Mobster Johnny Sacramoni is awaiting trial for a racketeering and murder, gets to leave jail for six hours to attend his daughter‘s wedding.  Well, today People magazine reporting a similar deal was made for real life accused killer Mary Winkler, accused of shooting her pastor husband in their home. 

Authorities said she confessed, haven‘t revealed a motive.  But apparently Winkler was allowed out to spend an hour with her late husband‘s body before his funeral last month.  Joining me now is Elizabeth Gleick, assistant managing editor of People magazine.  She is profiling the case in their current issue.  Former prosecutor and MSNBC analyst Susan Filan, and criminal defense attorney Don Bosch joins us as well. 

Elizabeth, what do you know about this?  I mean, she was literally just allowed to go and spend time with the body? 

ELIZABETH GLEICK,  ASSISTANT MANAGING EDITOR, PEOPLE:  That‘s right.  And I had the same thought of “The Sopranos” episode.  But there is a big difference, which is that she did this alone, not with hundreds of wedding guests.  It was the middle of the night, apparently.  And yes, she had some quiet time with her husband‘s body, extraordinary as that may sound. 

ABRAMS:  Do you know anything about how this happened, about the negotiations that went on to allow her to do this, et cetera? 

GLEICK:  I don‘t.  But look at what‘s happening in this case.  The entire community is rallying behind her even though she possibly has confessed to shooting her husband.  Her church members are visiting her constantly.  The parents of her dead husband have come forward and said that they forgive her. 

And so whatever the law may be about such visitations, she is apparently being treated with just an incredible amount of mercy by the community. 

ABRAMS:  Do you know anything about the security arrangements that occurred when she went out to see the body? 

GLEICK:  No.  All we know, and we have this from more than one source is that this visit occurred. 

ABRAMS:  Susan Filan, I mean, this to me is stunning. 

FILAN:  Dan, I am in shock.  Let me tell you, I‘ve been a lawyer for a long time.  I was a defense lawyer.  I was a prosecutor for longer.  I was on both sides of these motions being made by, when I represented the defendants and when I was a prosecutor, people that I was prosecuting.  Usually it goes to the judge and the judge says, I can‘t help you, pal, it is up to Department of Corrections.  It goes to Department of Corrections, and Department of Corrections says, you‘ve got to be kidding me. 

I had people that couldn‘t get to funerals of their parents, of their children, of their siblings, of their spouses, let alone the funeral of the person that you‘re accused of murdering.  So this to me is unprecedented.  In all my years, it is extraordinary.  And I think it is sick. 

ABRAMS:  Don Bosch, look, there is a lot of sympathy in that community for her.  But nevertheless, until we hear a little more about what the defense is and why she might have done it, et cetera, I‘m stunned. 

DON BOSCH, CRIMINAL DEFENSE ATTORNEY:  Well, first of all, I would disagree with Susan that it is not unprecedented.  First of all, she is not in the custody of Tennessee Department of Corrections yet.  She is in the custody of the local sheriff.  She is pretrial and most importantly, pre-conviction. 

I have seen things like this occur throughout Tennessee.  It is obviously unusual where it is the defendant that is getting the furlough for the funeral of the victim, in this case.  But furloughs are granted for any variety of very special and needy reasons.  And this doesn‘t wholly surprise me.  I‘m quite sure that it was done quietly with a lot of security.  But I‘m not as shocked as everybody else seems to be.  It is unusual, but this doesn‘t‘ surprise me. 

ABRAMS:  Don, give me reason even hypothetically that would be considered a valid reason to allow someone—again, if they don‘t think she did it or if they don‘t think she is guilty of murder, et cetera, well then, don‘t hold her on those charges.  But now that they‘re holding her, she is accused of premeditated murder in this case.  The case is going to the grand jury—in the grand jury‘s hands, et cetera.  With all of that in mind, it is still not surprising? 

BOSCH:  I‘m not surprised.  And again, the operative word here is “accused.”  Obviously, the facts right now seem to indicate that she has committed this murder.  There very well may be a confession.  But as the defense has indicated, there maybe a number of issues and a number of mitigating circumstances. 

Let‘s not forget, this was a husband and wife.  There are children involved.  This was likely a request that was agreed upon by both the state and defense counsel, as well as the judge, and furloughs are granted for any number of reasons such as funerals and health reasons.  This doesn‘t surprise me. 

ABRAMS:  Don, you said that the prosecutors agreed to this? 

BOSCH:  It wouldn‘t surprise me if they did. 

ABRAMS:  Oh, wouldn‘t surprise, OK.

BOSCH:  I don‘t know that.  But I suspect that they did, because if they didn‘t, I bet this visit would not have occurred. 

ABRAMS:  Elizabeth, you don‘t know anything about that, do you, about whether the prosecutors agreed? 

GLEICK:  We do not know.  No.  But this was an extremely brief visit. 

This was an hour.  This wasn‘t some long furlough to go far, far away. 

And.

FILAN:  Well, how long can you sit with a body?  I mean, how long can your visit with a body be? 

ABRAMS:  Yes.  But I wonder, Don, I do wonder whether it‘s the pretty young white woman who gets to go visit the victim where if we were talking about somebody else, it wouldn‘t be happening. 

BOSCH:  Oh, I think that that very well may be true.  This is a sympathetic defendant under any set of circumstances.  Additionally, this is a small community.  And this might be a harder thing to have occur in communities like Memphis, Nashville, Knoxville, the larger communities in Tennessee.  But in a small community where the defense bar, the prosecutors, the sheriff, and the judge are all familiar with each other, this isn‘t that much of a surprise to me. 

ABRAMS:  All right.  I hear you.  Elizabeth Gleick, big scoop for People, thanks for coming on the program, appreciate.  Don Bosch and Susan Filan, great job guest hosting last week.  Thanks a lot, appreciate it. 

FILAN:  A pleasure, Dan. 

ABRAMS:  From Detroit, where I am, outrage over a 911 operator‘s mistake.  A little boy calls to say his mother has collapsed.  The operator doesn‘t take him seriously.  The mother dies.  Now the family is suing.  We‘ve got the call.  We talked to his lawyer, Geoffrey Fieger, from right here in Detroit. 

Plus, Enron‘s former CEO takes the stand.  He says he is so convinced he did nothing wrong, he never even considered making a deal with prosecutors. 

Our continuing series, “Manhunt, Sex Offenders on the Loose,” our effort to find missing offenders before they strike, our search continues in North Dakota.  Police are looking for Charles Thompson, he is 41, five-eight, 175.  He was convicted of second degree sexual conduct and has not registered his address with the state.  If you have got any information on where he is, please contact the North Dakota Bureau of Criminal Investigation, 1-800-427-2185.

Be right back.

(COMMERCIAL BREAK)

(NEWSBREAK)

(BEGIN VIDEO CLIP)

ROBERT TURNER, 911 OPERATOR THOUGHT HIS CALL WAS A PRANK:  (INAUDIBLE) 

mama dead (ph), I‘m not so happy. 

(END VIDEO CLIP)

ABRAMS:  Six-year-old Robert Turner did just what his mother had told him to do if it was an emergency.  He called 911 here in Detroit after finding her on the floor on February 20th.  The 911 dispatcher apparently thought it was a prank. 

(BEGIN VIDEO CLIP)

DISPATCHER:  Emergency 911, where is the problem?

TURNER:  My mom has paused out.               

DISPATCHER:  Where is Mr. Turner at?

TURNER:  Right here.

DISPATCHER:  Let me speak to him.

TURNER:  She‘s not going to talk.

DISPATCHER:  OK.  Well, I‘m going to send police to your house to find out what‘s going on with you. 

(END VIDEO CLIP)

ABRAMS:  The dispatcher did not send police to check on Robert or his mother.  And about three hours later, Robert called 911 again. 

(BEGIN VIDEO CLIP)

DISPATCHER:  Emergency 911, where is the problem?

TURNER:  My mom has passed out.

DISPATCHER:  Where is the grown-up at?

TURNER:  In (ph) her (ph) room (ph).

DISPATCHER:  Let me speak to her.

TURNER:  She‘s not.

DISPATCHER:  Let me speak to her before I send the police over there.

TURNER:  She‘s not going to talk.

DISPATCHER:  Huh?

TURNER:  She‘s not going to talk.

DISPATCHER:  OK.  Well, you know what?  She‘s going to talk to the police, OK?  She‘s going to talk to the police because I‘m sending them over there. 

TURNER:  (INAUDIBLE)

DISPATCHER:  I don‘t care.  You shouldn‘t be playing on the phone, now put her on the phone before I send the police out there to knock on the door and you are going to be in trouble.

(END VIDEO CLIP)

ABRAMS:  The police finally arrived to check on the situation more than three hours after the initial 911 call and without emergency services.  It was apparently too late for 46-year-old Sheryl Lynn (ph) Turner.  She had died.  Joining me now is her daughter,  Dalana Patterson (ph), and Geoffrey Fieger has filed a wrongful death suit on behalf of the family.  Also joined by Kimberly Harris, the union president for Local 1023, which represents 911 operators.  She is also a 911 operator. 

Thanks very much for coming on the program.  We appreciate it.  All right.  Geoffrey, first let me just talk to you about specifically this case, because I know you have got some concerns that are broader.  But specifically here, what happened? 

GEOFFREY FIEGER, FILING SUIT ON BEHALF OF 6-YEAR-OLD BOY:  Well, what happened was that apparently children who make calls to 911, apparently are dismissed, threatened, and ignored.  Because Robert made it, as you heard, quite clear in two conversations, there doesn‘t appear to be any ambiguity, there doesn‘t appear to be any misconception, nor even an attempt from either of the 911 operators to determine the extent of the emergency. 

Instead, he was threatened.  He was told to stop playing on the phone. 

And his mother needed help.  He did exactly what he was supposed to do. 

ABRAMS:  Let me Dalana.  Dalana, had Robert been trained by his mother that if something happens, call 911? 

UNIDENTIFIED FEMALE:  Yes, he had. 

ABRAMS:  And do you know anything about what she had said to him just in case this or anything more about what he had been told to do? 

UNIDENTIFIED FEMALE:  Well, she told him, if anything had ever happened, you call 911 and tell them you have an emergency. 

ABRAMS:  How is he doing?

UNIDENTIFIED FEMALE:  He‘s frightened.  He is sad a lot. 

FIEGER:  We have exposed him to a lot, unfortunately.  We did that this morning.  But I have made a decision not to do that again.  The effect on him, Dan, is really demonstrable.  When he hears the tape, this morning, he started crying.  And I just decided that‘s it. 

ABRAMS:  And I should explain to my viewers that you had initially said that you would bring him on the program as well.  But apparently, after seeing what he went through this morning, you decided that you did not want to have that happen. 

FIEGER:  We‘re not going to do that to him anymore. 

ABRAMS:  Understood.

FIEGER:  I mean, what we need to do is get him therapy. 

ABRAMS:  All right.  Before I ask you about the legal issues, Geoffrey, let me talk to Kimberly Harris for a minute. 

Any sense of what went wrong here? 

KIMBERLY HARRIS, 911 OPERATOR UNION PRESIDENT:  Well, what you‘re listening to is the master version of the tape.  And not only one but two operators clearly felt that it was a prank caller. 

The first caller had two previous phone calls from kids calling from the same street, Spruce (ph) Street.  And they were playing.  And those were prank calls.  On the third call that she received, I guess she looked at the street and assumed that that was a continuation of the two previous prank calls. 

The second operator took the call and parts of Robert‘s conversations are inaudible.  But the tape that you‘re listening to is a master tape that is filtered and it is much clearer than the reception that we have from the call. 

ABRAMS:  But is the protocol that if something is inaudible from a child, you presume that it is a prank phone call? 

HARRIS:  Well, there is no presumption.  You have to answer each call individually and you do the best you can with what you have.  We weren‘t afforded the opportunity—or those operators weren‘t afforded the opportunity to replay the tape and second-guess their decision and then have words printed out across the screen. 

ABRAMS:  But I would.

HARRIS:  We are answering calls back to back and that‘s a decision that they have to make.  You don‘t get a chance to sit down and try to figure out what somebody is saying.  You ask certain questions and based on the information that you receive is how you handle that call. 

ABRAMS:  Look, we‘ve done programs—segments on this program about the dangers of making false 911 calls.  And I get it.  I know how debilitating it is to the 911 system, and how horrible it is in terms of the big picture of getting people to the scene. 

But with that said, my concern here is that any little child who had called and done exactly what their parents had trained them to do would have been treated the same way. 

HARRIS:  No.  That‘s not true, Dan.  Nobody articulates the same.  Nobody talks the same.  Everybody that calls, you know, some people are intoxicated, some people are in pain.  And we have to decipher through that.  And I‘m proud of the operators because we do a good job at that.  Everybody doesn‘t.

ABRAMS:  But she knew it was a child.  I mean, the concern isn‘t.

HARRIS:  It was clearly understood that this was a kid. 

ABRAMS:  Right, so intoxication really wasn‘t an issue, right?

HARRIS:  No, that‘s not.  I‘m just telling the different things that we do have to go through.  So this was a kid and based on that conversation, and I can‘t speak for the two operators that took the call, but it was inaudible.  And because we‘re having problems with our system, there is no secret that we cannot hear that well.  We‘re in a new facility with new equipment.  And there are some things that need to be worked out. 

ABRAMS:  Geoffrey, before I give you another opportunity, let me just ask you a final question.  Have the operators here been disciplined? 

HARRIS:  No.  They haven‘t. 

ABRAMS:  And what‘s the reason for that? 

HARRIS:  Because they‘re innocent until proven guilty.  And pending the outcome of the investigation of the police department, then that‘s when you‘ll find out the disposition of their case. 

ABRAMS:  All right.  Geoffrey, what‘s the lawsuit here? 

FIEGER:  Well, there—also, I might add, you can hear the tapes as well as I can.  There was no attempt to discern any—to determine whether Robert was playing a prank, none whatsoever.  The immediate reaction was, you‘re a child.  You‘re on the phone.  You‘re playing a prank.  And we‘re going to forget about you.  The lawsuit alleges, one, gross negligence on the part of the two operators, and, two, infliction of emotional distress upon Robert. 

He did—you know, you and I, how many times have you and I been on

this show talking about having children take responsibility for their

actions.  Younger and younger children are being charged with crimes.  And

yet when younger children call and do exactly what they‘re taught to do in

emergency situations, the excuse is, look, children are children.  I don‘t

you can‘t have it both ways, Dan. 

ABRAMS:  Well, let me ask you, Geoffrey, you‘re suing the operators themselves, right?  Because the city would be immune. 

FIEGER:  That‘s correct.  Under the Michigan laws, the city itself as a corporate entity can‘t be sued.  The operators who are employees of the city are represented by the city so they are the individual defendants. 

ABRAMS:  So who would pay if they were to lose in a civil lawsuit like this?  I mean, I assume. 

FIEGER:  The city and its insurance company. 

ABRAMS:  OK.  So it wouldn‘t be about—I assume that these operators don‘t have the.

FIEGER:  No, I‘m not interested in taking money from the individual operator. 

ABRAMS:  All right.  Dalana, please send our best to Robert regardless of what you think of this entire incident.  And, all right, anyway, thanks a lot for coming on the program. 

FIEGER:  Thanks, Dan, welcome to Detroit. 

ABRAMS:  Yes, thank you. 

UNIDENTIFIED FEMALE:  Thank you. 

ABRAMS:  And, Dalana, I know this has got to be a tough day for you as well.  So sorry to be here on this occasion, but anyway.  Kimberly Harris, thank you for coming on the program. 

HARRIS:  Thank you for having me. 

ABRAMS:  Coming up, finally, former Enron CEO Jeff Skilling takes the stand in his own defense.  Court watchers say he was a bit nervous.  We‘re going to talk to someone who was in the courtroom watching it all. 

And later, I respond to those who are hyping the tensions at my alma mater, Duke University.  I say they are not addressing the real issue here.  They‘re focusing on Duke as opposed to rape.  It‘s coming up.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  D-Day at the Enron trial in Houston.  Former Enron CEO Jeff Skilling taking the stand in his own defense.  He is accused of lying to investors and analysts about Enron‘s finances shortly before the company imploded in bankruptcy. 

Skilling admitted he was nervous to testify knowing that his life was, quote, “on the line.” He told them, quote: “It‘s not in my nature not to fight something like this.  The charges against me are wrong.  I will fight those charges until the day I die.”

Houston attorney Brian Wice was in the courtroom today and he joins us.  Brian, thanks for coming on the program.  All right, so how did he do?

BRIAN WICE, CRIMINAL DEFENSE ATTORNEY:  I thought he birdied the first three holes, Dan, like you said.  He came out smoking.  He talked about how he was nervous that his life was on the line.  That he never, no, not once ever thought about sitting down with the Enron task force and cutting a deal, and how of some of those people, indeed, the vast majority of his friends who already pled guilty, were innocent. 

I really think he had a problem though later on when he started discussing the collapse of the company, particularly his relationship with Andy Fastow.  You could see some of the old Skilling, some of the bile, some of the vitriol, some of the arrogance , something he needs to watch in the days ahead. 

ABRAMS:  What do you mean?  I mean, let‘s make it clear, Andy Fastow, of course, the former CFO, the key witness in this case against Skilling and Lay.  Why, what happened there? 

WICE:  Well, when he talked about calling Andy Fastow in the wake of a pretty critical Wall Street Journal article in October of ‘01, he said, Andy, we‘ve got to get our story out.  And as soon as he said it, Dan, he wished he could have taken it back. 

Why?  Because it didn‘t have the real ring of truth to it.  He didn‘t say, Andy, we have got to get the facts out.  We have to get the truth out.  It was “our story.” And as he talked about the demise of Enron, Dan, he seemed to want to blame everybody except himself.  He probably needed to show just a hint of contrition.  And we didn‘t see that today. 

ABRAMS:  Ken Lay, the other man who you would argue should have to show some contrition, his co-defendant, was outside of court talking about Skilling‘s testimony. 

(BEGIN VIDEO CLIP)

KEN LAY, ENRON FOUNDER:  I think he did a good job.  You can see just a very painful time for him just like it is for me.  And it is tough having to recount it. 

(END VIDEO CLIP)

ABRAMS:  Any chance, Brian, that Skilling would go after Lay or Lay would go after Skilling? 

WICE:  No.  You remember, Dan, rule one in the criminal defense playbook is nobody talks, everybody walks.  Well, certainly, the cross-examination, if you can call it that, by Ken Lay‘s lawyer of Jeff Skilling in the days and weeks ahead is going to be non-adversarial. 

In fact, Jeff Skilling did his best to humanize Ken Lay, calling him Ken on a number of occasions.  I think there is a defensive theory that both sides have gotten together to construct that makes sure that both of those guys walk out of the front door of this building instead of the rear door with the marshals. 

ABRAMS:  And the bottom line is that that defense is Enron was a great company, it was in great shape and we had no idea this was coming. 

WICE:  I think basically, Dan, like they said in opening statements, the bankruptcy was a tragedy but not every tragedy is a federal crime.  That there was no way they could have seen this coming.  It was a run on the bank and not cooked books that brought the energy giant down. 

ABRAMS:  Brian Wice, thanks a lot.  Appreciate it. 

Coming up, why I am sick and tired of people making the rape investigation at Duke about everything except for rape.  I‘m particularly peeved at an op-ed piece from The New York Times on Sunday.  My “Closing Argument.”

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument,” reading and watching some of the coverage of the rape allegations against members of the Duke lacrosse team, you might forget what this case is really about: a woman claiming she was raped by three individuals, not by the university, not by the entire lacrosse team or the athletic department, but, if true, by three criminals. 

Nevertheless, it seems some want to embellish the story by suggesting it was almost inevitable it would happen at Duke.  They vastly overstate the tension between Durham and Duke communities, inflate the sense of privilege at the university while exaggerating the economic woes of those in Durham.  It is often nothing more than race and class baiting. 

One of the worst pieces that appeared so far was on Sunday in The New York Times op-ed page.  A short story writer named Allan Gurganus, who apparently once taught a course at Duke, offered up a history of Native American pastimes, tobacco and slavery, and then torturously and unsuccessfully tried to link it to the rape allegations. 

He ever so pompously writes: “Lacrosse was our Eden‘s first team sport.  The Cherokees called it ‘the little brother of war.‘ It bred loyalty among players, a solidarity demonstrated by the code of silence among party attendees.” 

Oh, so it is because of the Cherokees, not the lawyers that some of the students have allegedly refused to talk.  Lawyering up is an American, not a Native American, ritual.  But that wouldn‘t work for his short story.

According to Gurganus, all lacrosse players are menaces, quote: “One

early explorer, after witnessing an Indian game involving hundreds of

stick-wielding players, wrote: ‘Almost everything short of murder is

allowed.‘”

Gosh, if I had known that, an early explorer had written that, I would have had this case solved long ago.  Hopefully the DA knows about that. 

He refers to besmirching the granddaughters of slaves and recounts how the Duke family made millions in the tobacco industry.  Talk about besmirching. 

And some of it is pure storytelling.  In an effort to paint a picture of an unbridled entitlement, he writes, quote: “Students fondly call the campus ‘Gothic Wonderland.‘” At least he didn‘t say they called it a “Gothic Neverland,” a la Michael Jackson. 

But in my four years on the campus, and my nearly 20 years as an alumnus, I have never heard anyone refer to it as such.  Maybe that was part of his creative writing course that I missed. 

He concludes that: “In the institution‘s hurry to protect its students, right or wrong, they seem to forget its role of educating and reassuring a community larger than itself.”

Huh?  The university has suspended the entire lacrosse team‘s season and one of its players from school.  Committees have been created to review the events and yet new evidence is still coming in.  The DA has not announced whether charges are even warranted against the players who Gurganus condemns as quote, “brutes, meatheads, and insurance risks.” 

ABRAMS:  This is serious stuff with serious allegations.  The New York Times should be pursuing a sober review of the evidence, not historical musings from a man whose specialty is fiction. 

Coming up, your e-mail on the Duke rape investigation.  Many of you upset about the fact that there was a discussion Friday about the alleged victim having had a run-in with the law.

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say.  Now it is time for “Your Rebuttal.” Many of you writing in about the debate Friday with guest host Susan Filan over whether the criminal past of the alleged victim in the Duke lacrosse rape investigation should be relevant. 

Susan Smith in Michigan: “By talking about the Duke rape victim‘s past, you are as guilty as the defense attorneys of not sticking with the issues at hand.  No one deserves to be raped, period.  I don‘t hear you raking Natalee Holloway across the coals.” 

Well, I agree that unless her criminal background relates to false allegations or lying about something relevant to this, it is not pertinent.  But remember, the question in this case is whether she was a victim, that‘s not the issue for Natalee.

From Columbus, Ohio, an anonymous e-mailer writes: “I was gang-raped by five men who made it a hobby to do this to others.  I did not come forward because I was afraid of a minor warrant for passing bad checks.  What I did was wrong, but what they did to me was much worse.  What message does it send to bring out the misdemeanor issues the victim had in the past?”

Abramsreport@msnbc.com is the e-mail. “HARDBALL,” 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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