updated 4/12/2006 11:44:46 AM ET 2006-04-12T15:44:46

Guests: Yale Galanter, Gary Casimir, Larry Kobilinsky, Susan Filan, Bill Fallon, Rony Camille

DAN ABRAMS, MSNBC HOST:  Coming up, the Durham North Carolina district attorney says despite negative DNA test results the Duke lacrosse rape investigation is not going away.  He sure makes it sound like charges could be filed soon.  The program about justice starts now.

Hi everyone.  First up on the docket, less than 24 hours after attorneys for the Duke University lacrosse players asked that the rape investigation be dropped, the district attorney is fighting back, saying today that negative DNA results will not derail the case.

(BEGIN VIDEO CLIP)

MIKE NIFONG, DURHAM, NC, D.A.:  A lot has been said in the press, particularly by some attorneys yesterday, about this case should go away.  I hope that you will understand by the fact that I am here this morning that my presence here means this case is not going away.

(END VIDEO CLIP)

ABRAMS:  At a forum at North Carolina Central University where the alleged victim is a student, the D.A. laid out the evidence that he is counting on to continue with the investigation and for the first time he confirmed that the woman has said she can identify her attackers.

(BEGIN VIDEO CLIP)

NIFONG:  Any time that you have a victim who can identify her assailant then what you have a case that the judge must let go to the jury.  Which means that in this situation I would expect that a jury would get to evaluate the evidence.

Duke University Hospital is the best trauma center in the area.  This nurse was specially trained in sexual assault and I would just point out that my conviction that a sexual assault actually took place is based on the examination that was done at Duke Hospital.

(END VIDEO CLIP)

ABRAMS:  That‘s what it‘s based on.  You heard the D.A. right there saying he has become convinced that there was a rape in large part because of the rape examination.  Joining me now for the hour MSNBC legal analyst and former Connecticut prosecutor Susan Filan.  Bill Fallon who was the chief of the Essex County, Massachusetts sex assault and child abuse unit.  Defense attorneys Gary Casimir and Yale Galanter and DNA expert and professor at John Jay College of Criminal Justice, Larry Kobilinsky.  Thanks to all of you.

All right, Susan, let me start up with you because yesterday, as we heard about these DNA results you were starting to kind of back off and saying this is going to be a tough case, that the D.A. is going to have to reconsider.  That D.A. came out today and is he not reconsidering anything at this point.

SUSAN FILAN, FORMER CT PROSECUTOR:  Well, what he is actually saying is that the investigation is continuing and that‘s a little bit different than I‘m ready to file charges I‘m taking this to trial, although by listening to his remarks it certainly does sound like he is willing to go all the way to trial.  If I were the district attorney, as I said, I personally would take a few steps back and reevaluate what I have got.

But, again, if you have a victim who can identify her assailants.  The absence of corroborative evidence like DNA is a blow but it isn‘t game over.  If he is relying on the medical exam, well, that nurse has got to be able to withstand the cross-exam that she can say for sure that any bruising on the victim‘s body wasn‘t there before she claims the alleged sexual assault took place.

ABRAMS:  Here is what I don‘t get.  We heard a piece of sound from the D.A. where it sounded an awful lot like to me like he is saying can identify the three people.  Right, Susan, you would agree.

FILAN:  Absolutely.  That was in the search warrant.  We have known that for a while.

ABRAMS:  All right.  Well, then listen to this.

(BEGIN VIDEO CLIP)

NIFONG:  It‘s important to remember that there are 46 members of the Duke University lacrosse team who were asked to submit to giving samples for DNA testing and only three of those people are alleged to have been involved in the assault so until we identify all three of those people that means that some of these young men are going to be walking around under a cloud where innocent people are being thought that perhaps they are guilty just because of their association.

(END VIDEO CLIP)

ABRAMS:  Bill Fallon, I could have sworn a minute ago he said that they identified him and now he is saying maybe they haven‘t.

BILL FALLON, FORMER SEXUAL ASSAULT PROSECUTOR:  Dan, listening closely and he is being a little tricky here, I have a feeling that probably only one or two are identifiable.  It sounded to me from that second statement as if he is saying there is a little difficulty with identifying a third.  I wouldn‘t rush to judgment here that three people will be complained against and/or indicted and I am hoping he is really not just relying on what the nurse says.  A nurse cannot get up there and say anybody was raped or not raped.  I hate to sound like a defense attorney with the rough sex idea.

But as Susan just pointed out if it‘s somebody you went to before and these are new injuries or what you I think this is still going to be a tough case.  On the other hand it‘s not an impossible case just because there is no DNA.  But one thing an expert is going to look at Dan should there be DNA even not of a sexual nature but of a nature if it‘s tugging and fighting or whatever went on.  Chances are she was just drunk there wasn‘t that much fighting if the photographs show she was drinking and was unable to consent.

ABRAMS:  We know Gary that her fingernails were found there.  That was the most surprising thing to me there was that there was no DNA found under the finger nails and the other side could say well, look, if they had long sleeves on or a jacket on or something you wouldn‘t necessarily find DNA but that was a surprise to me.

GARY CASIMIR, CRIMINAL DEFENSE ATTORNEY:  Yeah.  I think that was surprising to everyone.  I think she had described scratching being involved in some physical contact with them that would have produced some DNA under the fingernails.  I believe the fingernails were found in the bathroom where she says they fell off.  These were fake fingernails that she had on and says came off during the course of the assault.

Obviously the prosecutor has a large burden here when there is no DNA here.  Juries loves DNA, the media loves DNA, we all love it because we think it‘s beyond a doubt convincing of a case.  But as we have seen here in New York a lot of cases go to trial regardless of DNA.  It includes Michael Jackson a lot of celebrity cases have gone to trial and the D.A.  has .

ABRAMS:  Let‘s keep this in mind.  Again, we‘re talking about developments today in this case and the D.A. was suggesting and I want Larry Kobilinsky who is our DNA expert to weigh in on this.  There are still more testing being done.  Larry, let me play the sound.

LARRY KOBILINSKY, JOHN JAY COLLEGE DNA EXPERT:  OK.

(BEGIN VIDEO CLIP)

NIFONG:  There are many kinds of DNA tests that can be done and it might surprise you or it might not surprise you to know that we are still waiting for the results of some DNA tests that have not been done.

(END VIDEO CLIP)

ABRAMS:  Waiting for the results of DNA tests that have not been done. 

I assume he meant to say that have not been completed.

KOBILINSKY:  Well, Dan, I think I‘m trying to translate that into the possibility that the nurse examiner had obtained pubic hair combings and may have found hair foreign to the victim and therefore to analyze that you would need to mitochondrial DNA.  That takes a lot longer than the standard nuclear DNA procedure.  That‘s one explanation.  Alternately they may be trying to do Y chromosome testing which is fairly common in rape cases.  It‘s hard.

But let me just say this about the D.A.  I think this is a very questionable case personally and all I think is that if you are going to indict, I hope that he feels at least, that the D.A. feels, that he has got enough evidence to convict because, if not, he really shouldn‘t indict.

ABRAMS:  And that‘s something we talked about yesterday.  But here‘s the affidavit.  Again, we have heard the D.A. today saying he relied on the account from the nurse who did the rape examination to come to the conclusion that he did.  Well, here‘s from the affidavit, all right?

“A forensic sexual assault nurse and physician conducted an examination.  Medical records and interviews that were obtained by a subpoena revealed the victim had signs, symptoms and injuries consistent with being raped and sexual assaulted vaginally and anally.  Furthermore, the nurse stated the injuries and her behavior were consisted with a traumatic experience.”

Now, I was going to go to Yale but, Bill, you are the expert on this stuff because you are the one trying these kind of cases all the time.  How important does the nurse‘s assessment become?

FALLON:  Dan, it‘s really important but no matter what, a good defense attorney says, it‘s consistent with rough sex.  It‘s consistent with rape.  I mean, the good part is some of the version of the story for the prosecution, some of the version of the story that this alleged victim gave to the prosecutor and gave to the nurse, the nurse feels is consistent.  You know, when the old days nurses could say well I believe the victim was raped.  They can‘t say that anymore.  And quite frankly, consistency is not going to be enough to convict.

It‘s the victim‘s testimony that‘s going to be convicting.  And I just want to get back to what Larry said about the DNA.  I do think the only hope here is that those nails and things, if she starts testifying I knew I grabbed body parts and things like that and there is no DNA, not impossible but not good.  If you are going after clothes, to tell you the truth, these guys whoever did this to her if something was done, in fact, probably were somewhat clothed, you wouldn‘t find the DNA.  The nurse is important but I don‘t agree with the D.A. that the nurse is it.

YALE GALANTER, CRIMINAL DEFENSE ATTORNEY:  Dan?

ABRAMS:  Yale, look.  What about the possibility and this is a possibility we will talk about later in the show because her father has mentioned this possibility as well as others.  That maybe you know, she was raped with an object and that could explain why there was no DNA.

GALANTER:  Well, you know, right now we are just grasping at straws, anything is possible.  But the facts are the facts.  We know there are pictures of her going to the party with some kind of trauma, bruises, cuts, on her body.  There are photographs.  They can‘t be argued with.  We know about her prior record.  That can‘t be argued with.

ABRAMS:  What is her prior record?  Wait, again, what is her prior record have anything to do with this particular case?

GALANTER:  Because the D.A.—this is what it has to do with, this district attorney, Dan, is shooting his mouth off and has been shooting his mouth off before all the facts were in.

ABRAMS:  Right.

GALANTER:  When he came forward and he made his first public statement on your show about his belief in her credibility and how she was assaulted and she was raped, he didn‘t mention the fact that she had some problems.  He didn‘t mention the fact that he had pictures.

ABRAMS:  Yale, look, that, to me, is like mentioning the fact that some of the young men who are involved or at least were on the lacrosse team had various misdemeanor convictions one of them accused of something more serious.  To me, that stuff doesn‘t really go to the question of the case on either side.

So, what, she ended up stealing a taxi or something.  I‘m not saying that that‘s OK but I‘m saying if it were a case where she made false allegations in the past.  If it was a case where she was accused of lying in the past I would say let‘s talk about it, it‘s relevant.  I don‘t know how this is really relevant.

GALANTER:  She led the police on a car chase through the streets of that city.  Certainly her character comes into issue here, Dan.

ABRAMS:  Gary?

CASIMIR:  Dan, you know, I have to agree with Yale, if it‘s the defendant on trial, if he takes the stand, the prior conviction is coming out and I‘m sure they would be making him out to be more violent or a crime against dishonesty, robbing people, stealing cars crime against dishonesty.  It does go to credibility.  I want to make it clear here that lots of cases go to trial based on the one woman identification and no DNA.  Lots of times women report these cases a lot later.  So I don‘t think the case is altogether weak but I do have to agree with Yale on one thing.  I think this D.A. for the first time when he says he is very adamant about the prosecution in this case instead of saying that he will continue to investigate, which I am surprised about.

ABRAMS:  Let me do this.  We have got—Do we have the sound of this?  All right.  This is the sound—this is the D.A. on this program demonstrating to us how someone might have been attacked and explaining why the person might not be able to identify her attackers, etc, but I think it‘s very telling in terms of the D.A.‘s theory of the case.

(BEGIN VIDEO CLIP)

NIFONG:  She was grabbed from behind so that in essence somebody had an arm around her like this which she then had to struggle with in order to be able to breathe and it was in the course of that struggle that the fingernails, the artificial fingernails broke off.

Now, as you can see from my arm, if I were wearing a shirt, a long sleeve shirt or a jacket of some sort, even if there were enough force used to press down to break my skin through the clothing there might not be anyway that anything from my arm could get on to those fingernails.  So, again, whether or not there would be any evidence would depend on exactly the situation.  Were the fingernails actually in contact with the skin or were they in contact with clothing?

(END VIDEO CLIP)

ABRAMS:  Everyone is going to stick around for our special hour on the Duke rape investigation.  Coming up, the defense came out swinging all but saying the D.A. couldn‘t charge their clients but they were singing a different tune this morning.  What happened?

And outrage at the school where the alleged victim goes to college.  The D.A. facing off with a group of students and alumni how relevant is race in this case?  Plus the father of the alleged victim speaking out saying he is not surprised that the DNA evidence didn‘t come back positive.  Hear from him.

Your emails at abramsreport@msnbc.com.  Please include your name, where you‘re writing from, I‘ll respond at the end of the show.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  The D.A. said in his filing with the court that DNA evidence would conclusively prove who was guilty and would also clear the innocent.  I take him at his word.  I think that‘s a correct statement and I think this test clears these young men conclusively.

(END VIDEO CLIP)

ABRAMS:  That‘s what the attorneys were saying in a press conference yesterday immediately after they got the DNA results in connection with the Duke lacrosse team rape investigation.  And, you know, all of these tests came back negative but then this morning all the attorneys stopped talking.  There was only one who was out there and it was Butch Williams who is an attorney for one of the co-captains of the team but he was not taking as hard a line this morning as the attorneys were taking last night.

(BEGIN VIDEO CLIP)

BUTCH WILLIAMS, ATTORNEY FOR DUKE LACROSS PLAYERS:  Just one more piece of evidence that points away from the fact of this alleged gang rape.  It‘s not the all conclusive; however, it is a very, very strong piece of evidence to lead toward a decision being made not to prosecute.

(END VIDEO CLIP)

ABRAMS:  Yale Galanter, is it possible that the defense team decided that maybe they were a little aggressive last night, maybe they were baiting the prosecutor?

GALANTER:  It could be.  Certainly they are taking a very hard stance.  They are putting a spin on it and light most favorable to their clients but what the lawyer said this morning it‘s accurate.

ABRAMS:  I understand it is.  But it is a distinctly different message than what was being sent in that press conference at a quarter to 6:00 Eastern Time last night verses 7:30 when I went on the TODAY SHOW with him this morning.

GALANTER:  Dan, we are all lawyers and what the law is.  The prosecutor can put this complaining witness on the stand with no other scientific or forensic evidence and if the jury believes her, these boys can be convicted.  And it is as simple as that.  And these lawyers know that.  And I think that‘s why they are backpedaling here.

ABRAMS:  A lot of them, Susan, are talking about that statement to authorities are in application to get the DNA evidence and it said the following.  “The DNA evidence requested will immediately rule out any innocent persons and show conclusive evidence as to who the suspects are in the alleged violent attack upon this victim.”

Why would they put that in the application if there was some question about whether they would find DNA?

FILAN:  Oops, maybe they shouldn‘t have said that.  The only reason I can think that they did is because one of the things that‘s going to come into play in my opinion if this does go to trial is a motion to suppress the results of the DNA had they been conclusive because one could argue under the Fourth Amendment ha that it was an unconstitutional search because it was a dragnet or a fishing expedition.

ABRAMS:  They didn‘t find any DNA.  Who cares?

FILAN:  Exactly.  But you are asking why they might have put it in there.  They may have been trying to sweet talk the judge for going for something that is maybe a little bit unorthodox and maybe a little bit unorthodox by saying, look, your honor, you are doing the right thing here because you could be giving innocent people a walk today.  It may have been an oversell.

ABRAMS:  Who wants to - Bill .

FALLON:  I think they just made a mistake here.  They just made a mistake.  They foolishly put that in there.  What they should have said is if DNA evidence is done it can inculpate or exculpate.  This was - everybody in this case seems to be a little hyper.  The defense attorneys last night, the D.A. in other cases just sit back and do your job I say to these people.  And that to me is an overreach.  I never heard of anybody that could get 47 -- 46 people in any event under a search warrant to give a sample.  So that was really going to be a stretch to begin with.  Maybe some grand juries could do it.  But I think this still leaves open .

ABRAMS:  Wait, see, no, wait, wait, wait.  Everyone is just assuming for a minute that it was a mistake.

FILAN:  I‘m not assuming, that Dan.

ABRAMS:  You are or you aren‘t?

FILAN:  I am not assuming that.  No.

ABRAMS:  Because you said oops.  I‘m thinking, look, the other possibility beyond mistake is, Gary, that they were told something about this.  That the alleged victim said you will find DNA and that‘s why they were so certain and see that‘s the big question in this case that has to be addressed.  Because I think everyone is right.  The prosecutors can be wrong.  They could have said, you know, we shouldn‘t have said it, etc.  But if the alleged victim is changing her story, that‘s an entirely different matter.

CASIMIR:  And it‘s something they are going to have to explain later on.  Right now we haven‘t gotten discovery in this case but it‘s heavily possible, Dan, that the victim in this case say there might have been semen available.  I know something happened with regard to one person.  There could have been condoms involved here and that could have been resulted when the condoms were removed.  There was a lot of reasons for the D.A. to believe that the semen or that the DNA would be present and based on that DNA they would be able to eliminate innocent people.  Because you‘ve got to remember, there is 46 people taking a DNA test where there is only three individuals.

ABRAMS:  And show conclusive evidence as to who the suspects are.

CASIMIR:  That‘s right.

ABRAMS:  That is a big statement to me and the question becomes and I think even, Bill, you would agree, that the if the alleged victim has changed her account to the D.A. that the D.A. based on all of the circumstances would or should drop this case.

FALLON:  Should dump the case.  Dan, I think this leaves open the typical defense that we usually never get that nothing happened, if something happened it was consensual and if it wasn‘t consensual it was not my guy.  I think you are going to look at were the facts inconsistent and I think when I saw that D.A. talk about someone from behind coming and grabbing someone this really leaves open who did what if anything were done.  And I‘m going to tell you if I‘m the defense attorney on this case I want exact notes of what was taken because I think if you take together that this is going to help prove who it was, he showed someone from behind maybe we didn‘t know the identity, I think a good defense attorney is going to go, you know what?  You have got three kinds of reasonable doubt here and it‘s not my guy and I would probably get up there and say you know what, ladies and gentlemen, if I were you, I would think she was raped you just don‘t think my guy did it?

CASIMIR:  I want to say one thing with regard to the district attorney‘s investigation here.  I think he is making mistakes by making such definitive statements.  This process of investigation usually takes some time.  And to that extent I don‘t think the investigation is over.  If we go back and talk about the St. Guillen case where initially the DNA didn‘t come back to match Littlejohn and then they went back to found one DNA matching.  That case is not over.  An investigation takes time.  I think one mistake the DNA is making here is he is making definitive statements which I think he should be holding back on, saying the investigation is continuing, the legal elements are still there of rape.  We have a credibility issue but that‘s for juries to decide and that‘s how the case normally should proceed.

I‘m a little surprised he is being so forceful but I guess he is going up against these defense attorneys who are being strong.

ABRAMS:  Also, again, I hate to mention this because I know that the D.A. gets very sensitive when you bring this up but it‘s got to be talked about is the fact that he is up for reelection on May 2nd and that‘s got to be something that people are going to ask about, Susan.

FILAN:  Absolutely.  I mean, it just sinks my heart like a stone to think that anything involved in what I think is our great system of criminal justice could become politicized.  Now, he stuck his neck out pretty far and I hope upon hope that he isn‘t keeping this investigation going until after he elected in May.

ABRAMS:  See that‘s what—and, look, and, again.

FILAN:  It would make me sick.

ABRAMS:  I‘m not saying that I think he is being political but I would

say it will not surprise me at all if this investigation extends beyond May

2nd.  Why?  Because then this doesn‘t become the only issue.  If he chooses

makes an announcement that there is going to be an indictment or isn‘t going to be an indictment, half the community is going to be furious at him.

FILAN:  Exactly.

CASIMIR:  And we have the racial element.  We‘re talking about North Carolina.  There is a large black population here.  We‘re talking about black on white .

ABRAMS:  We are going to talk a lot about that.  This meeting today at NCCU.  People were really—this is a D.A. who is showing up and he is saying I‘m going to continue the investigation.  Don‘t listen to them.  The DNA doesn‘t end this and yet everyone is still going after him saying why weren‘t they arrested already, etc?  Look, here is a little sense of it coming up.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  You all know that if this happened—the young lady was from another school or another persuasion, the outcome would have been different.  They would have been in jail.

(END VIDEO CLIP)

ABRAMS:  The D.A. says is he still going forward.  Question, why was he getting such an earful at the alleged victim‘s school today?  He who says this investigation is moving forward essentially is being accused of racism and the alleged victim‘s father speaks out about the DNA results and those pictures the players‘ lawyers say prove that no abuse take place.

Our continuing series, “Manhunt, Sex Offenders on the Loose”, our effort to find missing offenders before they strike.  Our search today is in North Dakota.  Authorities are looking for Joseph Charboneau.  He is 21, six-foot, 170.  Convicted of gross sexual imposition.  Has not registered his address with the state.  Got any information on his whereabouts please contact North Dakota Bureau of Criminal Investigation 1-800-472-2185.  We will be right back.

(COMMERCIAL BREAK)

(NEWSBREAK)

ABRAMS:  We are back.  Even though the district attorney in Durham, North Carolina is saying he will still go forward with the rape investigation involving members of Duke‘s lacrosse team, some members of the community still not satisfied.

(BEGIN VIDEOTAPE)

UNIDENTIFIED FEMALE:  We all know that if this happened at Central, and the young lady was from another school or another persuasion, the outcome would have been different.  They would have been in jail.

NIFONG:  And I understand that that is a sentiment in the community from some people but I just want you to know that that is not the way I conduct business.

UNIDENTIFIED MALE:  Why did the accused rapist get a chance to chill out at the Duke University.  The moment that they were accused there should have been an arrest.  I want to know why were they not arrested?

NIFONG:  The police act too quickly by getting warrants in the case and accusing somebody on incomplete evidence, then the ability to later proceed against the people who actually committed a crime can be impaired.

UNIDENTIFIED FEMALE:  My understanding from this family this young lady has identified the three men who have raped her.  They should be in jail.

NIFONG:  Victoria, I will tell you right now that your information is incorrect.  And I will also tell you that your comments in this case are exactly what this case does not need right now.

UNIDENTIFIED MALE:  Within the last couple of years, a white female was assaulted allegedly by a black male, a black student at Duke was going to his work study job, the police grabbed him, put him in jail, and later said oops, sorry, mistaken identity, but you met the profile.  Those lacrosse players met the profile, why weren‘t they arrested?

Now, what is the differences?  Is it the billion-dollar a year operating budget of Duke which can buy anything and everyone?

NIFONG:  You are asking me why in a city where a black man was wrongly arrested because he was mistaken for somebody who might have committed a crime why haven‘t we arrested a whole bunch of white men knowing that only three of them could have committed the crime and the fingers are pointed at 46.  My answer to you, sir, my answer to you is, sir, I don‘t want to arrest the wrong person in any case.

I only want to arrest the right person and I want to convict the right person and I don‘t want anybody who did not commit a crime to be arrested or put on trial.  That‘s my answer, sir.

(END VIDEOTAPE)

ABRAMS:  Oof!

Joining me now, Rony Camille, a student at NCCU and the assistant editor of the “Campus Echo” newspaper there.  Rony, thanks for coming back on the program.  We appreciate of it.

RONY CAMILLE, NCCU “CAMPUS ECHO”:  Thank you.

ABRAMS:  Explain to me, Ronnie.  Listening to a lot of the sentiment there at your university, it sounds to me like if you step back from—step back a little bit and you talk about this rationally, what they are really saying is we have seen other examples where the police have misbehaved or where police have targeted people because of their race.  It really doesn‘t sound like they have got a real good argument about why anyone should have been arrested here, right?

CAMILLE:  Yes.  Dan, and it‘s getting right now really, really, really tense.  I was there earlier today and just to see the students and members of the community ask these questions to the D.A. was just really, you know, it made you think for a second about what was going on.

ABRAMS:  See, I guess I don‘t understand what it is they want from the D.A.  They want him to just go forward and arrest, you know, it sounds like the D.A. has identified, based on our analysis of everything he has said.  It sounds like the D.A. has identified maybe one, possibly two of the people but not all three.  Are the people in the community saying just go arrest the whole team?

CAMILLE:  That‘s what they are—basically the overall feel is that they want, you know, the team should have been arrested.  DNA should have - - the extension of the DNA should have taken, you know, two weeks and it was overextended.

ABRAMS:  Uh-huh.  They have got to know, you know, it‘s a good school, smart people, they have got to know that that‘s craziness, right, the idea they are going to go in and they are going to arrest the whole team?

CAMILLE:  Well, you know, there are some people that don‘t really think logically but right now it‘s just the best thing to do is just to wait on the sideline and just wait until the legal—and that‘s what the chancellor has been saying, that‘s what many professionals have been saying on campus.

ABRAMS:  Because, again, the D.A. seems to be bucking the defense attorneys.  The defense attorneys came out yesterday and said, hey, no DNA, case should be dropped.  The D.A. comes out and seemingly is supporting the alleged victim saying I am convinced that there was a rape here and, yet, people are still on his back.

CAMILLE:  Well, he must be convinced that there is some type of evidence.

ABRAMS:  Right.

CAMILLE:  To continue with the case.

ABRAMS:  All right.  Let me bring back our panel.  All right.  Gary, you were bringing up the racial issue before and I told you to hold off a minute until we got to this particular discussion.  But this is getting a little crazy.

CASIMIR:  Well, I don‘t know if it‘s getting a little crazy.  We are in the South, Dan.  Political components matter here.  We are talking about a rape of a black woman by alleged a lacrosse team.  There are sensitive issues here involved and there is a distrust.  We have to admit that there is a distrust that exists within the black community and we‘re talking about a school that - as was mentioned that‘s a billion-dollar foundation as compared to a smaller school.  These issues are prevalent on the minds of people and the other side of it is there is a feeling in the black community that blacks are often arrested a lot easier than whites.

ABRAMS:  Fair enough.  Let me ask you this, Gary.  Let me put you in the position of D.A.  You are former prosecutor.

CASIMIR:  Sure.

ABRAMS:  You are the D.A. now, right you are at that meeting where we just saw Mike Nifong, do you say anything differently?

CASIMIR:  I don‘t think I would have said anything necessarily differently except for the part that I complained about before which was a decision to prosecute no matter what.  I think he should have been a little more hesitant on that statement.

ABRAMS:  They would have gone crazy.  Everyone is after him for not arresting them already.

CASIMIR:  That‘s true, probably, because I wouldn‘t have been there.  Because I don‘t think it was time for him to be there because you are going to play into political pressures and I know the defense attorneys are going to make a lot of hay of this.  It‘s not necessary at a time for him to be in that situation.

But that community wanted answers.  It wanted to make sure that its victims are not being treated differently from victims of other persuasions, as that lady put.  And that‘s important in that community.  We can‘t forget, we‘re talking about North Carolina here and these issues matter and this is—it is politics and we are talking about a community that voting population has a large black voting population.

ABRAMS:  But Susan - go ahead, Bill.

FALLON:  But Dan and Gary, this is why prosecutors should shut up.  They are sounding like Tom Sneddon from the very beginning with the Michael Jackson case that I berated him for going on and on and I think that this prosecutor got himself in trouble.  I do think he brought this case because he wanted to be elected?  Absolutely not.  This is not the type of case.  Do I think he went out to this community because he saw things looked bad.  Yes and quite frankly I wouldn‘t mind if he gave a statement we will not be affected one way or another by race, class, status, power, all of those issues and we will proceed.  You get yourself in trouble as a prosecutor when you don‘t shut up.

ABRAMS:  I have got to take a break.

CAMILLE:  If I could interject here.

ABRAMS:  Quickly Rony, yeah.

CAMILLE:  The majority of the students have been saying what if it was a murder?  Would it have gone the same thing same route.

ABRAMS:  The difference with a murder you know that there is definitely a victim.  In rape cases where the allegation is that there was no crime committed, you have to investigate further to determine that there was a victim.  I mean, that‘s the big difference.

CASIMIR:  Dan, I think you are overstepping here because the question here is her credibility.  The other stuff is superficial.  It‘s just new technology that‘s used to prove.

ABRAMS:  Rony is saying why would it be treated any different than a murder case.  And the answer is because in a murder case you automatically know there is a victim and you move forward and you say who did it.  When it‘s an allegation of rape, it‘s a lot more sensitive because you have to determine, first, was there a victim?  Right?

CASIMIR:  And traditionally.

CAMILLE:  They have marks on the body—on the person; is that correct, though?

ABRAMS:  Yes, there were marks on the body, but, again, come on, Rony, you know the evidence in this case.  I will let Yale take that one.  Yale, do you want to respond to that, he says there are marks on the body?

GALANTER:  Dan, the first thing that has to occur in any criminal investigation is, a, was a crime committed?  The second issue is who committed the crime?

ABRAMS:  Rony has just pointed out—respond to specifics.  Rony just said, he said, well, there are marks on the body there are responses in this case, right?

GALANTER:  The marks on the body, the defense is claiming when she arrived at the house to do at the house what she was going to do at the house that she already had the marks.  So if the marks were there before the alleged crime takes place that‘s puts her credibility in doubt.  And that‘s the difference between this and a murder.

CASIMIR:  That‘s not what the difference is.

GALANTER:  The prosecutors and the police .

CASIMIR:  We are dancing over.

ABRAMS:  Why is that not a difference?

CASIMIR:  Let me tell you.  We were dancing over the real issue.  The issue here is credibility.  She went to the hospital.

GALANTER:  Exactly.

CASIMIR:  Hold on a second.  The real issue is not the credibility about marks on her legs but credibility concerning the injuries to her vagina and her anus and whether or not these were consensual injuries.  She is an exotic dancer .

GALANTER:  And who did it?

CASIMIR:  She went to a party to work and the background issue here is whether or not she was raped or whether or not these issues are consensual.  That‘s all we have as a credibility issue.

GALANTER:  That‘s fine.

CASIMIR:  Because if anyone else said.

ABRAMS:  I totally agree, Gary.

CASIMIR:  I have got to finish.  If anyone else said that there was a gang rape by a person who was not there for an exotic dancing position or situation.  You would have a whole different outlook on this case by prosecutors.

ABRAMS:  I‘m not so sure.

FILAN:  You can‘t talk about her being an exotic dancer.

ABRAMS:  All right.  Let‘s take a break.  We will just continue this conversation in a minute.  Everyone‘s sticking around.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  We won‘t show his face or tell his name but the father of the alleged victim in the Duke rape investigation spoke to MSNBC after the news came in that no DNA matches from any of the young men from the lacrosse team and while you can‘t see him you can hear while he talks about all the latest developments.

(BEGIN VIDEOTAPE)

QUESTION:  The bottom line you are not surprised by these results?

UNIDENTIFIED MALE:  No, I‘m not.  I‘m really not surprised.

QUESTION:  Why not?

UNIDENTIFIED MALE:  Well, I knew sooner or later they would come out, the other side would come out sooner or later and maybe have something.

QUESTION:  How do you think that hurts your daughter‘s case?

UNIDENTIFIED MALE:  Well, I can‘t—I can‘t deny it‘s going to hurt her some.  It will.  How much, I don‘t know.

QUESTION:  Do you still believe something happened that night?

UNIDENTIFIED MALE:  I do, I really do.

(END VIDEOTAPE)

ABRAMS:  He does and so does the D.A. as he made very clear today when he was visiting at NCC University, the school where the alleged victim was a student.  The D.A. said this investigation is not over and it sure sounded to me and, Susan Filan, we are having a lot of debates here about what could happen what should happen.  It just sounded to me like this D.A.  was going to move forward and file charges.

FILAN:  I don‘t know, Dan.  I don‘t know what he means by the investigation is going forward.  Does he mean, perhaps, that he is going to investigate whether she made a false claim?  If she did, and I‘m not saying she did.  I don‘t know now, doubt has been raised in my mind.  But if she did, I have got tell you, Dan, she set women about 100 years and what she did is she heightened racial tensions.  Maybe she did something good by getting us all to talk about this.

ABRAMS:  I want to focus with Larry because we have left him out of this discussion a little bit.

KOBILINSKY:  Yes, Dan.

ABRAMS:  Larry.

KOBILINSKY:  Yes.

ABRAMS:  The bottom line, how certain can a nurse be because, you know, we have Rony Camille over there asking a good question and he is saying, you know, what about the injuries that were found by the nurse?  And the D.A. is talking about that.  How definitive can it be when a nurse comes back and says: I think there was rape here?

KOBILINSKY:  Well, Dan, once again, I think you have hit it on the head, there is an allegation of an assault, a strangling as well as a rape and sodomy.  And the fact of the matter now that there is no DNA, it‘s not that it didn‘t match, there was no DNA.  So what becomes crucial, it‘s the trauma to the genitalia and the bruises.  Now, I have got to tell you that the training for a sexual assault nurse examiner has a very limited curriculum, they get about 40 hours and one thing that they cannot do is determine the time elapsed from the trauma, that is the cause of bruise, they can‘t look at a bruise and determine when it was inflicted.

And the same is true of genital trauma.  There may be genital trauma but the question is when, when did all of this happen?  And the question that I‘m raising now is did this happen prior to the party?  I‘m just raising the question.  It is a very critical question.

ABRAMS:  And, Gary, in connection with—we were talking about before, you don‘t deny that‘s a critical question, right?

CASIMIR:  Absolutely it‘s a critical question.  There is no doubt.  I don‘t deny that.  I think—listen, when I first started being a prosecutor DNA was just on the rise.  It was very expensive.  We didn‘t get it for every test.  And if a victim came in and there was allegations of rape and there was proof of physical injury, proof of vaginal and anal penetration, the kind of factors that show rape, the prosecutor had to make a decision and a lot of it was credibility.  No different than in any other case, his word against mine.  The assault is no different either, his word against mine; however, because of the circumstances surrounding this case obviously credibility is always an issue here, it‘s heightened because she was an exotic dancer.

ABRAMS:  Gary, you think credibility should have already been made?  I guess that‘s the bottom line question.

CASIMIR:  No, first of all I‘m not privy to all the information the district attorney‘s office has.  I think he has made a credibility determination.  He has specifically stated .

ABRAMS:  I think that‘s true.

CASIMIR:  He specifically stated to everyone - he said there was a sexual attack that occurred in this case that means it was unconsensual.  That decision has been made.  Whether or not there is enough to go forward for a prosecution is .

ABRAMS:  Susan, you agree, right, that the D.A. has clearly made a credibility assessment already.

FILAN:  I don‘t think he should.

ABRAMS:  Whether he should or shouldn‘t he has.

FILAN:  Yes, it does sound like he put his cards on the table and say I believe her I believe her because I looked her in the eye and I think she is telling me the truth.

ABRAMS:  And he says based on the rape exam.

FILAN:  And the nurse.  Yes.  He is basically saying two things I think she is telling the truth and the nurse corroborates it.  But I want to just tell people the D.A.‘s job isn‘t to find out whether he personally believes her.  He takes the complaint, he investigates or she, there has got to be some corroboration, there has got to be some ability to prove.  There has got to be probable cause to get the arrest.

FALLON:  If he doesn‘t believe he shouldn‘t go forward.  Susan, if he doesn‘t believe he shouldn‘t go forward.

ABRAMS:  We‘ll see.  Rony Camille, Susan Filan, Bill Fallon, Gary Casimir, Larry Kobilinsky, great panel today.  Thanks a lot everybody.  Appreciate it.

CAMILLE:  Thank you.

ABRAMS:  Coming up, why the Duke rape investigation is different from other investigations we cover on this program.  And, no, it‘s not because of race or gender or because I went to Duke.  It‘s my closing argument.

(COMMERCIAL BREAK)

ABRAMS:  My closing argument, a lot of people on both sides writing in suggesting we are treating the Duke lacrosse rape investigation case with kid gloves.  In a way we might not if it were another story.  Well, it‘s true.  This is different.  Aha.  So is it race, is it gender is it because I‘m a Duke graduate?  No, no and no.  It‘s a lot simpler than that.

First of all, unlike many of the cases we cover, no charges have been filed here.  No defendant or suspect has been identified publicly.  That in and of itself distinguishes itself from many.

Maybe most important, the uncharged suspects say that no crime was committed.  In most stories we at least know with certainty there was a victim.  This came up in both the Michael Jackson and Kobe Bryant cases.  The accuser‘s credibility put into question as it has been here.  That‘s not an issue of race but of rape.

We are not treating this case any differently than we did let‘s say the allegations of sexual misconduct against Bill Cosby.  He was never charged.  You can argue that makes it a gender issue because rape is a crime most often perpetrated against women.  And let me make it perfectly clear, as in the other rape or sexual misconduct cases we cover I will not stand for scurrilous or irrelevant accusations about the chastity of the women accusers.  Their credibility on the other hand is crucial.

Sure, we‘re treating this case differently from a murder case, but no different than any other rape investigation where no one has been charged.  This is sensitive stuff.  So if you‘re one of the people preparing to write that angry email accusing the media or even me of sexism, racism or bias one way another, ask yourself this—do we really know enough yet to have that kind of certainty about what did or didn‘t happen?  I don‘t.

Coming up, a lot of you writing in about this story, particularly Duke grads responding to me.  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say.  Time for your rebuttal.  Last night in my closing argument I highlighted a particularly pompous “New York Times” op-ed piece about the Duke investigation by a short story writer named Allan Gurganus.

Kevin McGowan, a Duke grad from Boston, writes, “As a fellow Duke alumnus, I applaud your show for balanced reporting of the Duke lacrosse story.  You stated that you had never heard of Duke referred to as ‘The Gothic Wonderland.‘  In actuality, while I was at Duke, we often referred to the campus with that phrase.”

All right.  Maybe I missed it.

All right.  Another Duke alum, David Anderson who now teaches English echoed that sentiment and had harsher words for me.  “Allan Gurganus is a well-known American author.  He often reads at Duke.  If you didn‘t know who he is, that truly proves my point about Duke students knowing and caring little about their surroundings.”

That‘s proof, my fellow alum, that I didn‘t know an author that often reads at Duke?  You may make a good English teacher.  You would have made a bad lawyer.  Got to go.  HARDBALL.  Bye.

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

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