updated 4/14/2006 11:14:58 AM ET 2006-04-14T15:14:58

Guests: Norm Early, Leslie Crocker Snyder, Yale Galanter, David Rudolf,

Rony Camille, Jesse Longoria, James Gordon Meek, Michael Zeldin

DAN ABRAMS, HOST, “ABRAMS”:  Coming up live from Duke University, a new e-mail surfaces in the rape investigation which makes it sound like a member of the lacrosse team will be cooperating with the Durham Police tomorrow?  But there‘s one big problem with it. 

The program about justice starts now. 

Hi, everyone, I‘m here at my alma mater, Duke University.  In hand I have an e-mail which, if true, could have been a turning point in the investigation into a gang rape allegation made against members of the school‘s lacrosse team. 

It‘s from the e-mail address of one of the players, sent to at least half of the team members in groups of three with the subject line “sorry guys.” The message: “I am going to go to the police tomorrow to tell them everything that I know.”

The problem?  According to his lawyer, the player who allegedly wrote the e-mail, didn‘t write it, didn‘t send it, and was in class when it was sent.  In fact, the e-mail is time-stamped at 11:44 a.m. this morning.  We‘re going to have to figure out what this could be about. 

Meanwhile one of the players‘ lawyers says he expects at least one team member to be indicted as early as Monday.  Joining me now, retired New York State Judge Leslie Crocker Snyder, a member of the National District Attorney Association, former Denver DA Norm Early, and North Carolina defense attorney David Rudolf, and Yale Galanter, who is also a defense attorney. 

Thanks to all of you for coming on the program, appreciate it. 

All right.  Norm, could this be shenanigans on the part of authorities here?  I mean, they have access to these guys‘ computers, I‘m certain, at this point.  Could this be some sort of trick? 

NORM EARLY, FMR. DENVER, CO, DA:  I would hate to speculate as to the source of that e-mail, Dan, and add to the confusion that surrounds this case already.  But what I will say is that I would be awfully disappointed if someone from law enforcement decided to engage in that kind of conduct. 

You either have a case or you don‘t.  And that should not be something that you do to try to smoke out people who have information or to make individuals who may have been perpetrators afraid that they‘re going to be outed as a result of an e-mail that they received. 

I think you have to play it above board.  The investigators have to investigate, the district attorney has to make a decision. 

ABRAMS:  And you know, again, you would have to be kind of a dummy to think that someone is going to read this and say, oh no, I had better not call, but wait, I‘ve got ‘til tomorrow, because he‘s not going to the police today.  He‘s announcing to us now that he‘s going to go the police tomorrow, Leslie.

LESLIE CROCKER SNYDER, RETIRED NY STATE JUDGE:  Well, you know, Dan, I find this very interesting, and the last comment very interesting, because the police traditionally trick defendants all the time.  And trickery which doesn‘t overcome the conscience or morality, et cetera, is allowable. 

So they may tell the defendant someone else has confessed.  That goes on all the time.  And a lot of it is allowable.  Would the police do this down there?  I have no idea.  Would the team members do this?  As you say, it seems unlikely someone‘s going to announce it, but the police need a break.  It seems to me they need a break very badly.  This 43-person group, it‘s incredible that no one‘s broken.  And that‘s what they need.

ABRAMS:  I‘ve got to tell you, but if they did this, they are really -

I mean, again, we don‘t know this is them.  We do know that in an affidavit they asked for any electronic data processing and storage devices, computer and computer systems, including central processing units, storage devices, keyboards, printers, video display monitors, and modems. 

But, you know, if this is their game—and again, Leslie, I agree with you, the police do engage in trickery all the time.  I don‘t really have a big problem with the police trying to get people to be honest effectively, but if this is the methodology, again—and we don‘t know that it‘s the police, we tried to call them, they didn‘t want to comment on it. 

But, Yale, if this is the methodology, this would seem to suggest that they could be in some trouble. 

YALE GALANTER, DEFENSE ATTORNEY:  Oh, yes, if this did come from the police department—which I have got to tell you, Dan, I don‘t think it did.  But if it did come from the police department they‘re in deep hot water.  With the spotlight that is on Mr. Nifong already. 

ABRAMS:  So where would it have come from? 

(CROSSTALK)

GALANTER:  Dan, I will tell you, in these types of high-profile cases, you know, I refer them to the whackos that love to try and get in on the media frenzy that‘s going on here, I think people come out of the woodwork.  There are very computer-savvy, tech-savvy people who could send an e-mail and make it look like it came from somebody else. 

The thing that is most telling about this is the fact that a lawyer is getting up and saying, listen, it did not come from us.  Not only did it not come from us, the student who allegedly wrote the e-mail was in class at the time.  He‘s got an alibi, which makes it look like a hoax or some kind of a plant deal going on. 

ABRAMS:  Well, and also the message, when it was forwarded, was dated tomorrow, also. 

GALANTER:  Right. 

ABRAMS:  You know, look, I think this turns out to be nothing.  By the way, we did call the police, if—after watching the program, which I know they do, if they decide they want to call us and make a comment, they certainly know how to get in touch with us about this. 

But, look, I don‘t think this is particularly relevant to the investigation, but again, over half the team members received this e-mail.  So we shall see. 

All right.  Issue two, and this is where I want to talk to David Rudolf about it, and this is the suggestion from at least one of the defense attorneys, and possibly two of them, suggesting that they expect that an indictment could come down as early as Monday. 

Now, David, look, you‘ve don a lot of high-profile cases in North Carolina.  There are a lot of lawyers here in this case.  There are a lot of possible defendants and so you have a lot of people trying to work with one another.  But is it possible that two lawyers would know that an indictment is coming and the other nine wouldn‘t? 

DAVID RUDOLF, DEFENSE ATTORNEY:  I don‘t think anyone knows it‘s coming, but I think after the district attorney announced that the alleged victim had identified someone last week, I think the speculation—and I think it‘s fairly informed speculation, is that that means there‘s going to be an indictment next week. 

Keep in mind that Michael Nifong is in the middle of an election campaign and the vote is in a couple weeks.  And if the grand jury doesn‘t indict somebody next week, there may be a backlash against him. 

ABRAMS:  But see, I would think, David, that the smarter thing, if you‘re going to view it through a political prism—and again, we‘re talk about this more in the next block, but I would think if you‘re going to look at this through a political prism, the smarter thing for Nifong to do would be to say, we‘re continuing the testing, we‘re continuing the investigation, we‘re not giving up on the case, I‘m serious about this case, et cetera, but not sort of commit one way or the other yet until May 2nd

RUDOLF:  Well, except he‘s committed.  He committed in the first week of this investigation  and made statements that go way beyond any statements that I‘ve ever heard any district attorney make in any case I‘ve ever heard about. 

So he‘s already out on the limb and I think that there has to be an indictment, given what he‘s already said. 

SNYDER:  Well, let‘s give the grand jury a little credit, Dan.  I mean, I know you think they‘d indict a ham sandwich, but I still believe, in a case like this, depending on the composition of the grand jurors, that they are capable of listening and unless there is a very clear identification of someone, they could conceivably not indict. 

I mean, it‘s not really automatic.  I know you don‘t buy that, you‘re a skeptic about it, but—and.

(CROSSTALK)

GALANTER:  But, Leslie, grand juries have always been a tool of the prosecutor.  I mean, you know, whenever a prosecutor goes in front of a grand jury they get a true bill (ph).  I mean, that‘s just the way it is.

SNYDER:  Most of the time, Yale, but not 100 percent of the time. 

This case is controversial enough. 

(CROSSTALK)

ABRAMS:  But, Yale, is it possible—Yale, what I don‘t get is why

are just one or two of the attorneys going out there saying an indictment

is coming on Monday?  I mean, is that sort of bravado, is that an effort to

I don‘t know, to spin the DA somehow one way or another? 

GALANTER:  Dan, I don‘t think it‘s bravado.  I think what it boils down to is out of the three alleged attackers, the complaining witness has identified for certain two.  She‘s out on the limb on one.  I think the district attorney has probably notified those attorneys that since the grand jury is sitting next week and won‘t be sitting for another couple of weeks, that he‘s going to present it to the grand jury, and if they indict, the grand jury did it, and if they didn‘t indict, the grand jury didn‘t—did it. 

I think some of the comments that have already been made are true.  Mr. Nifong has already been out on a limb and he‘s already said that in his mind that he believes that a crime was committed, so I think he has got to push for an indictment as hard as he can. 

SNYDER:  But the fact that he said that he believes a crime was committed was because he had medical evidence which supported the fact that this woman was allegedly raped.  I don‘t know who raped her, I don‘t know when she was raped. 

GALANTER:  Leslie, he didn‘t have medical evidence, what he had was her word and an examination from a rape treatment nurse.

SNYDER:  That‘s right.

GALANTER:  . saying that she had bruises and trauma.  But we don‘t know where the bruises came from, when the trauma occurred. 

SNYDER:  Well, what I‘ve heard, accurate or not, is that she had the kind of bruises consistent with a vaginal and anal attack.  That was what I heard.  Now we‘re all speculating.  We don‘t know. 

But if a district attorney hears an alleged victim claims she was raped, and has injuries which seem to support that, it‘s not unreasonable to say you‘re going to pursue the case aggressively. 

The problem here.

(CROSSTALK)

ABRAMS:  Hang on. 

SNYDER:  I think the problem here.

ABRAMS:  Let me let David Rudolf in.  Go ahead, David, go ahead. 

RUDOLF:  Yes, I think what you‘re missing, Leslie, is that in fact there are photographs that show injuries consistent with an attack when the woman arrived at the party.  And the fact that a rape investigation indicates that there are injuries does not mean that they happened in the exact way that the accuser.

SNYDER:  I do not disagree with you about that.  I was about to say that we don‘t know who attacked her or exactly when.  So.

RUDOLF:  Well, but except that Michael Nifong has basically said, I believe that a gang rape occurred in that fraternity house—I‘m sorry, in that house, that everyone who was there was an aider and abettor.  It was racially motivated.  He has gone way beyond.

ABRAMS:  No, he hasn‘t said that.

(CROSSTALK)

ABRAMS:  Hang on a sec, hang on a sec.  David, the DA has not said that he is convinced that the rape occurred in that house and that it was racially motivated.  He has said.

RUDOLF:  Oh, I think he has, Dan. 

ABRAMS:  . that he is convinced—no, he has said that he is convinced a rape occurred and he has suspects because she says that it was the people in the house.  Now, it‘s his job now—I mean, it sounds like he is convinced that a rape occurred. 

The question that he has to address now is can he name who did it.  And that‘s what he said again and again.  He has said, my job is to figure out who did this to her.  And, look, I think that many of the defense attorneys would probably end up agreeing that somebody assaulted her, somebody inflicted these wounds. 

The question, of course, is who? 

RUDOLF:  Not in the house.  I don‘t think you have to at all jump to the conclusion it happened in the house. 

SNYDER:  Well, I think we don‘t know enough.

(CROSSTALK)

ABRAMS:  Hang on, Norm Early, hang on, Norm Early, go ahead. 

EARLY:  Mr. Nifong has been in the district attorney‘s office for 27 years, he‘s only been the district attorney for one year.  The picture changes once you become the district attorney.  Now you deal with the media.  And in dealing with the media, the wisest course is not to give them information. 

You certainly don‘t come out and tell me what you feel about the case and you secondly, you don‘t give them deadlines.  Because if you don‘t meet those deadlines, if you tell them DNA will be back Wednesday, it had better be back by Wednesday. 

But the district attorney has no control over that.  So what is happening here is that he‘s making statements about his conviction, that this crime occurred and the woman was raped, and then he‘s giving the media information that the media is going to rely on. 

What he should be doing is conducting an investigation, waiting until that investigation is concluded, and then make statements.  These statements should not be in the public domain at this time. 

(CROSSTALK)

GALANTER:  . hasn‘t done that, he‘s already gone out on a limb.

SNYDER:  Maybe Mr. Early should give lessons to a lot of other DAs. 

ABRAMS:  I think everyone agrees that he‘s gone out on a limb here. 

Leslie Crocker Snyder, Norm, David Rudolf, thanks a lot, appreciate it. 

Yale is going to stick around for a different segment. 

Coming up, the Durham Police have just released a recording of one of the first police officers to see the accuser following the alleged rape.  We‘ve got the tape as that officer describes her as passed out drunk. 

And outrage this week from the school where the alleged victim is a student.  One of the editors of that school paper is here along with the Duke student body president. 

Plus, Zacarias Moussaoui takes the stand in his death penalty case and changes his tune, now he says he doesn‘t want to die.  But is this really just a strategy to get the jury to vote to put him to death?  

Your e-mails, abramsreport@msnbc.com, please include your name, where you are writing from, respond at the end the show.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back at Duke University and this just in, we‘ve got an audiotape that as part of this investigation.  We just received this, what we‘re about to play for you is a recording of radio traffic, where one of the first police officers to see the accuser following the alleged rape described her as quote, “passed out drunk.”

(BEGIN AUDIO CLIP)

POLICE OFFICER:  This is going to wind up being a 24-hour hold.  She‘s 1056 and unconscious. 

DISPATCHER:  10-4, do you need medic truck?

POLICE OFFICER:  She‘s breathing, appears to fine.  She‘s not in distress.  She‘s just passed out drunk.

(END AUDIO CLIP)

ABRAMS:  Passed out drunk.  Is that significant?  Criminal defense attorney Yale Galanter is back with me.  And I‘m joined again by Norm Early and Susan Filan, both of them are on the phone. 

All right.  Yale, significant? 

GALANTER:  It‘s huge, Dan.  If this bombshell doesn‘t hit it out of the park for the defense, nothing will.  It‘s not so much significant that she‘s passed out drunk, the fact that the dispatcher asks this police officer whether or not he needs a medical truck.  He looks at her and says no, she‘s not in distress. 

In other words, he doesn‘t notice lacerations, bruises, cuts, any marks that are visible to him.  In other words, someone who just got assaulted by three men, this trained police officer doesn‘t see it and doesn‘t ask for a medical truck.  That‘s huge. 

ABRAMS:  Norm? 

EARLY:  Well, you can‘t deny the fact that she was bruised when she got to the hospital.  And apparently she went from this officer to the hospital.  So there had to be some bruising and the hospital saw it. 

But I do agree that this is a tremendous blow to the prosecution‘s case, even if—you know, we all know that people can be sexually assaulted even if they‘re drunk.  But here we have a situation where this young lady is recalling with great particularity what happened to her in this bathroom at the lacrosse team house and it doesn‘t seem to be supported by the scientific evidence at this point.  And now it doesn‘t seem to be supported by the first police officer encounter. 

ABRAMS:  I guess, Susan, you could argue that maybe after it happened she went and got really drunk. 

SUSAN FILAN, MSNBC LEGAL ANALYST:  Well, I don‘t know, Dan.  I don‘t know that she‘s actually intoxicated.  I think we need to see the results of the blood alcohol test, which I‘m sure that they did, based on this dispatch. 

And I don‘t know that they are necessarily accurately interpreting what they are seeing with their eyes.  She could have been traumatized.  She could have been passed out from the shock.  I‘m not saying she was, I‘m not saying she wasn‘t, but I‘m not ready to jump on the bandwagon of this police officer and say he looked at her, said she‘s drunk, ipso facto, she‘s drunk. 

Remember in the Entwistle case, the cops searched that house how many times and never found the dead bodies of Rachel and her daughter.  So don‘t say trained police officer—look, we don‘t know.  We don‘t know.  And I‘m not sure that this alone is a devastating blow. 

ABRAMS:  Let‘s also remember though when you talk about the blood alcohol.

GALANTER:  Susan, he‘s a trained police officer. 

ABRAMS:  Hang on one sec.  Let‘s remember that she didn‘t check into the hospital for at least a couple of hours, maybe more, there is still some debate about exactly what time she was admitted, so I don‘t know how much the blood alcohol level, if there was even a test done, would really help here. 

Here‘s the 911 call that led to that officer arriving at the scene. 

(BEGIN AUDIO CLIP)

DISPATCHER:  Durham 911, where is your emergency?

CALLER:  Yes, I‘m at Hillborough Road at the Kroger store.  I‘m the security guard.

DISPATCHER:  What‘s the problem?

CALLER:  It‘s a lady in somebody else‘s car, and she would not get out of their car.  She‘s like—she‘s like intoxicated, drunk or something.  She‘s—I mean, she won‘t get out of the car, period. 

DISPATCHER:  Does she have any weapons or anything? 

CALLER:  Does she have any what?

DISPATCHER:  Weapons or anything?

CALLER:  No, ma‘am.  She‘s barely talking. 

THIRD PARTY:  And she‘s fairly drunk.  She‘s got no weapons, nothing.

DISPATCHER:  And where is the owner of the car?

CALLER:  The owner of the car is standing right here now.

THIRD PARTY:  And I can explain what happened.

CALLER:  And she says she can explain what happened.  You want to talk to her?

DISPATCHER:  Just let her know we‘ll send someone out there to help her. 

(END AUDIO CLIP)

ABRAMS:  So it‘s not just the police officer, Susan, it‘s also the first person to call 911, also describing her.

FILAN:  Yes, I know that.

ABRAMS:  . as basically passed out.

FILAN:  I‘ve known that all along, Dan.  And that still doesn‘t worry me.  Look, other things have worried me that have come out, but this one doesn‘t in particular.  This woman in the Kroger is the good samaritan that is trying to be of assistance.  She has no idea whether this person is unconscious or traumatized. 

But what I think is so significant about this call, as I‘ve always wondered, who she was in the car with?  Because some people say she was in the car with her boyfriend, now we know it‘s another woman.  Is it the other dancer?  I‘ve always wanted to know who that was.  That‘s my first clue, it‘s another female.

ABRAMS:  Yale? 

GALANTER:  Susan, this is a woman who was just assaulted, as she claims, by three men, and a trained police officer tells his dispatcher not to send the medical truck.  To me that‘s huge.

FILAN:  Look, there is no formula for the way women who are gang-raped act.  And I‘m sick and tired of people saying, she didn‘t act like this, she didn‘t act like that.  This case has problems of its own.  But I don‘t think this is one of them.

GALANTER:  It‘s a gang rape, she is saying she was cut, bruised, assaulted.  Where is the evidence of that? 

FILAN:  On her arms and supposedly on her inner thighs. 

GALANTER:  Now you have got a law enforcement officer who is there to come to her aid.  She doesn‘t say anything and she‘s not showing any outward signs of this trauma.  And she‘s.

FILAN:  Guess what, a lot of women don‘t report right away.

(CROSSTALK)

ABRAMS:  Susan Filan, hang on, hang on. 

FILAN:  They‘re not going to spill out what happened to them right away to the first person on the scene.  Sometimes it takes somebody calm and with a little bit of patience to pull this out.  Look, I have problems with other things, I don‘t have a problem with this yet. 

ABRAMS:  Norm Early and Susan Filan, thank you so much.  Yale, you are going to stick around.

The rape investigation is dividing the community, and certainly you could argue that it‘s driving a wedge a little bit between Duke and where the school where the alleged victim attends, North Carolina Central University. 

(BEGIN VIDEO CLIP)

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. 

MIKE NIFONG, DURHAM, N.C., DISTRICT ATTORNEY:  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. 

(END VIDEO CLIP)

ABRAMS:  Joining me now is Duke Student Body President Jesse Longoria, and Rony Camille, who is the assistant editor of North Carolina Central University‘s student newspaper, The Campus Echo. 

Thanks to both of you for coming on the program. 

All right.  Rony, look, have you talked to a lot of people who know the alleged victim well?

RONY CAMILLE, NCCU CAMPUS ECHO ASST. EDITOR:  No, we have not.  Myself or any of my reporters have not spoken to anybody to have known the victim.

ABRAMS:  How is that?  I mean, that‘s the thing that has kind of struck me about this.  I mean, we keep referring to her as an NCCU student, and it seems like it‘s a pretty tight-knit community, and yet no one seems to know her. 

CAMILLE:  Right.  Basically she‘s a nontraditional student.  And NCCU is a majority commuter school.  And most of those nontraditional students go in, take—go to their classes, leave.  They have jobs.  She—apparently she has kids.  So in and out. 

ABRAMS:  So has the amount of support for her, without people knowing her, surprised you? 

CAMILLE:  No, not at all.  She is an NCCU Eagle, and she is family to these people. 

ABRAMS:  But see—but that‘s not the perception I get at the people at Duke, I mean, in the sense that I get the feeling that Duke students are more divided. 

JESSE LONGORIA, DUKE STUDENT BODY PRESIDENT:  I would agree, right now everybody is still trying to step back and allow the facts to come in.  And while we‘re waiting, there is speculation obviously on every side.  Some people think that there should have been charges by now, some people think that everything should just wait and see, and that‘s where everyone is. 

ABRAMS:  You know, it‘s—you walk by some of the campus eateries here and there are these flat screen TVs and they‘re all on the news channels here.  Is that always the case? 

LONGORIA:  Usually, unless like obviously there is a sporting event going on.  We would be watching the sports.  But people are in tune.  People are coherent and want to follow the national news.  And right now this is a national news story.

ABRAMS:  But I‘m just—I guess what I was wondering is—has this case made it different?  Meaning, is there more attention being paid to the national news because its—so much of it is about Duke? 

LONGORIA:  I would say so.  It is definitely a topic that‘s dominating the campus dialogue right now.  I mean, people are talking about it in classes.  People are talking about it at dinner tables.  People want to step back and find out what happened. 

ABRAMS:  See, Rony, is the reason that the NCCU campus is not as divided, do you think, because NCCU is primarily an African-American university? 

CAMILLE:  Yes, I would say that, yes.  It‘s—well, it‘s confusing.  It‘s a mixed bag.  It‘s a really mixed bag, from the students I‘ve been talking to, they could say different things about what their opinions are. 

ABRAMS:  I guess I‘m comparing it, because at Duke, and again, from being here today and from talking to Jesse and others here, it does seem that there‘s a bit of a divide here as to what should happen about people‘s reaction.  And yet at NCCU, even though no one really knows this woman very well, everyone‘s supporting her. 

CAMILLE:  Right.  It‘s not surprising, because she is a student.  If something were to happen to another student, I would guarantee somebody would be behind her 100 percent.  But yet they are letting the legal system play out and see what happens to the rest. 

ABRAMS:  Because the question, of course, is—I mean, this is the ultimate question, is did something happen at the hands of Duke students, right? 

CAMILLE:  Right now you just have to wait and see what happens. 

ABRAMS:  Are people waiting, though?  Because I‘ve got to tell you, from watching that NCCU forum, I got the sense a lot of people there weren‘t waiting. 

CAMILLE:  I know, and they‘re pretty angry, they‘re frustrated that the DA is taking so much of a long time to come out with the DNA results. 

ABRAMS:  Yes, well, I mean, we‘ll see.  They‘re still doing more testing, et cetera.  Do you think it‘s going to have a long-term impact on Duke? 

LONGORIA:  I think how we act in the coming days and weeks and months will really determine that.  President Brodhead‘s formed the committees and hopefully we will be able to step back and address the situation appropriately. 

ABRAMS:  All right.  Jesse and Rony, thanks a lot.  It‘s good to meet you guys in person.

CAMILLE:  Thank you.

LONGORIA:  Thanks for having us. 

ABRAMS:  Appreciate it. 

Coming up, Zacarias Moussaoui takes the stand to—get this, the al Qaeda conspirator changing his tune.  A couple of weeks ago he told jurors he wants to die, now he says he wants to live.  But the question is, is this really a backhanded way to make sure he gets the death penalty? 

And former vice presidential aide Scooter Libby‘s lawyers want to call Karl Rove and former press secretary Ari Fleischer to testify, suggesting they‘re the ones who really leaked the name of that CIA agent. 

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 Dakota.  Police are looking for Tydise Peltier, he‘s 32, five-eight, 156, is convicted of abusive sexual contact and hasn‘t registered his address with the state.  If you have got any information on his whereabouts, please contact the North Dakota Bureau of Criminal Investigation, 1-800-472-2185. 

Be right back. 

(COMMERCIAL BREAK)

(NEWSBREAK)

ABRAMS:  We‘re back.  Is confessed al Qaeda terrorist Zacarias Moussaoui finally fighting for his life in court?  Or is that what he wants the jury to think so they might do the opposite and give him the sentence he really wants, which is death as a martyr? 

Today he Moussaoui is testifying in his own defense in the sentencing phase of his death penalty trial.  Moussaoui now saying he does not want to be executed, and attacking the lawyers he said he didn‘t want to represent him, claiming they worked against him.  They should have fought to move the trial away from its site near the Pentagon and should have told the jury it‘s better to punish him with jail, instead of an execution that would make him a martyr. 

But on cross-examination Moussaoui said he would like to see the 9/11 attacks every day.  He admitted he has lied in his case when it suited his interests and claimed he was convinced President Bush would free him before his term of office is over, saying that vision came to him in a dream. 

James Gordon Meek is a reporter with The New York Daily News.  He has been covering the story and has been in the courtroom today. 

All right, James, first, let‘s talk about this business about him wanting the death penalty versus not wanting the death penalty, you have been following this case.  Is this guy playing games? 

JAMES GORDON MEEK, REPORTER, NEW YORK DAILY NEWS:  Moussaoui is always playing games, Dan.  But a year ago when he pleaded guilty, he did say that he was not going to let the U.S. take his life with an execution.  And so today he emphasized that again, that he said, you‘re not going to be able to execute me. 

And then he got into a kind of a—you cited this before, delusional territory, where he said that George W. Bush, the president of the United States, is going to free him before Bush leaves his term of office. 

But at the same time he also rubbed salt in the wounds by saying to 9/11 families that he wished he could have caused them more pain and suffering.  He wished that the people from the Pentagon who testified this week had actually died in the attacks.  He has no remorse whatsoever and as you said, he wished that the attacks had happened on September 12th, 13th, 14th, 15th, 16th, and 17th

ABRAMS:  Let me ask you this, do you think that he wants to die? 

MEEK:  I don‘t.  I think that Moussaoui thinks it‘s a foregone conclusion.  We heard him say something to this effect today that he will be executed, because by virtue of the fact that we‘re Americans and that this is a Jewish-Christian nation, as we put it, that we want him, an al Qaeda member, to die. 

But I think he wants to have, as he has said in the past, a bit of fun with us before he goes.  But he said he is going to fight.  He is fighting today and he‘s going to continue to fight to make sure that we don‘t execute him.  And he‘s absolutely certain that by telling the truth, God will help him, as he said, and he will be sprung from jail. 

ABRAMS:  All right.  James, you can stick around for a minute, let me bring in my panel.  Joining me now, former federal prosecutor Michael Zeldin, and with me again, criminal defense attorney Yale Galanter, and a retired New York State Judge Leslie Crocker Snyder. 

Michael, how are the jurors going to read this?  I mean, they are getting so many conflicting signals.  This guy‘s awful, he admits to hating the United States, he tries to give himself a bigger role in 9/11 than many believe that he actually had, which would seem to suggest that he should get the death penalty.  And then, on the other hand, there is the possibility that a lot of these jurors are going to say, I want to see this guy suffer. 

MICHAEL ZELDIN, FORMER FEDERAL PROSECUTOR:  Right.  He can be viewed as crazy, he can be viewed as crazy as a fox, as you‘ve implied, the possibility of asking for something so that he‘ll get something else instead. 

And the jurors can, in listening to the testimony of the person who talked about what life would be for him in a maximum security prison, say, you know, honestly, that would be a lot worse for this guy living in that little cell for the next 30 or 40 years, contemplating his fate, than dying in martyrdom. 

Zacarias Moussaoui said today he didn‘t want to die because further study of his religion tells him that is not what martyrdom is about.  Who knows what really is going on in this guy‘s head. 

I think his lawyers are completely convinced that he is not competent, that he is crazy, and that he‘s presenting himself in a way that a juror I think could reach that conclusion and then not want to execute him, not want to execute a person who‘s (INAUDIBLE) insane. 

ABRAMS:  I don‘t know, maybe I‘m wrong, Leslie, but I don‘t think there is a chance that these jurors are going to say, oh, you know, we feel sorry for Zac.  Maybe he is mentally infirm.  Maybe we should take it easy on him.  I think that whatever they do, they‘re going to do with the goal of inflicting the maximum amount of pain on him.

SNYDER:  I agree with you, totally.  I don‘t think they will find any sympathy.  I think the fact that they‘ve already said he‘s death penalty eligible is—almost makes it a foregone conclusion. 

I think though with all the speculation about what Moussaoui really wants, this guy is a sick, sick individual, by any rational standard.  He may be crazy as a fox, he may be crazy, but he‘s sick, despite the fact that he would be involved in any way, however small or big in the al Qaeda plot, and it‘s impossible to know what‘s going on in his mind.  That would be my conclusion. 

ABRAMS:  Yale, has this case shown that maybe, when it comes to these al Qaeda conspirators, that the regular criminal justice system that we have in place is just not equipped to deal with a guy like this? 

GALANTER:  No.  I think the criminal justice system is well-equipped.  I think what Leslie said is accurate and I think you hit the nail on the head also.  This jury is going to vote 12-0 for a death sentence.  That is a foregone conclusion, they have shown that.

ABRAMS:  Really?  You think so?

(CROSSTALK)

GALANTER:  Oh, absolutely.

SNYDER:  I think so.

ABRAMS:  I do not think it‘s a foregone conclusion.  I don‘t.

GALANTER:  Oh, I do. 

ABRAMS:  I don‘t.

GALANTER:  Dan, let me just say one other thing. 

ABRAMS:  I think that some of these jurors may think that he‘s going to believe that he‘s going to become a martyr if he gets killed and they‘re going to say, I‘m not going to send him there. 

(CROSSTALK)

ABRAMS:  Hang on, hang on, hang on, hang on. 

SNYDER:  . they‘ve heard such horrible evidence here from these victims.  I think it‘s overwhelming emotionally and it will be very hard for them to reach any other conclusion.  The sad part I think is that this isn‘t a key player, apparently, in 9/11.  And we should have the key players on trial, as other people have said.  Those are the people that we want to see brought to justice to the extreme. 

ZELDIN:  But you‘re going to have testimony tomorrow from other victims‘ family members, who are going to say that they would rather see him incarcerated for the rest of his life.  And so it‘s not going to be a unanimous sentiment of the families that they want this guy executed.  And I think the jury is going to have to weigh that, too, in determining what is the worst sentence for this guy. 

(CROSSTALK)

ABRAMS:  Let me ask James about that.  James, let me just ask you about that.  I mean, the testimony that we‘re expecting for the defense from family members, I can‘t imagine that it‘s going to be particularly warm.  It‘s going to be, this guy will suffer more pain if we put him in prison for life. 

MEEK:  Well, Alice Hoagland (ph), whose son was on Flight 93, one of the people who fought back against the al Qaeda hijackers, told me last that she is not against the death penalty, but she is in this case for one reason, because she doesn‘t want to make him a martyr. 

But what I would say is in the first phase of this trial, Moussaoui put the noose around his own neck by testifying.  Today he testified again and he threw the rope over the gallows and took a good tug on it. 

However, he also, by saying that Bush is going to free him before the end of his term, sounded pretty delusional.  And I‘m absolutely certain that the defense lawyers are going to put up experts next week who are going to say this guy is a paranoid schizophrenic and completely delusional.  Whether it sways the jury or not, I don‘t know. 

(CROSSTALK)

ZELDIN:  And then you will have an appellate issue before the Supreme Court of whether you can execute a guy like this. 

(CROSSTALK)

ABRAMS:  I don‘t think that will be a big issue.  Hang on a sec.  James, let me ask you a question Richard Reid.  Richard Reid is the shoe bomber and Moussaoui had claimed that he and Reid were supposed to be on a fifth plane on 9/11.  There was some effort by the defense to get Richard Reid to testify, right? 

MEEK:  That‘s the million dollar question.  I think we‘re still waiting to see if he‘s going to actually be a witness in this case, and I don‘t think that question has been answered.  I will say that some people are optimistic that he will be testifying in this case. 

ABRAMS:  Really? 

MEEK:  Let me just add one other word about the jury, though, Dan. 

The jury saw a lot of graphic evidence, I saw it, I  sat through court this week.  It was pretty horrific seeing burned, charred corpses in the Pentagon.  And the prosecutors are asking this jury—they are saying, look, killing is wrong, but we want you to kill this guy, we want you to be a part of killing.  And this jury may be to sickened by that, that they may say, no, sending him away to a supermax Colorado is going to be worse than anything we could do with a lethal needle in the death house. 

SNYDER:  But it‘s pretty hard to listen to Moussaoui himself say these horrible things about how we want to you to suffer more, I wish the attacks had continued every day.  He himself, as was just said, I think, has made his case so much less appealing in every way. 

MEEK:  But do you kill a man for saying that though? 

SNYDER:  Well, it‘s not the point.  I just.

MEEK:  Do you kill a man for saying that though?

SNYDER:  I just think it‘s very emotionally powerful.  It‘s going to be very hard for this jury, I think, not to vote the death penalty. 

ABRAMS:  We shall see.  Michael Zeldin, Yale Galanter, Judge Snyder, James Gordon Meek, thanks a lot.  Appreciate it. 

SNYDER:  Thank you. 

ZELDIN:  Thank you.

ABRAMS:  Coming up, the CIA leak investigation.  Former vice presidential aide Scooter Libby points fingers now across at some other White House officials.  Could we see some big names taking the stand?  We‘ll talk to someone who may have a real good sense of that up next. 

And later, we talked about earlier, many of you now writing in.  Is the DA in the Duke rape investigation playing politics?  A lot of you have views on this.  Your e-mails are coming up.  

(COMMERCIAL BREAK)

ABRAMS:  Is the CIA leak case heading for an interoffice White House showdown?  The latest documents filed in the case show former vice presidential aide Scooter Libby‘s defense team wants to call former White House spokesman Ari Fleischer and presidential senior adviser Karl Rove to the witness stand. “HARDBALL”‘s David Shuster is here to try to explain this to us. 

David, good to see you.  All right.  So what‘s the goal here?  What are they trying to get out of these guys? 

DAVIS SHUSTER, “HARDBALL” CORRESPONDENT:  Well, Scooter Libby is trying to overcome two obstacles.  The first obstacle obviously is his own testimony when he said, hey, those reporters gave me the information about Plame, I didn‘t give it to them. 

The second obstacle is the testimony of the reporters who said no, Scooter Libby gave us this information about Plame.  What Scooter Libby appears to be testing out is an argument of somehow undermining the reporters, by suggesting that they were mistaken in their testimony, that perhaps maybe they really did hear about Valerie Plame through Ari Fleischer or through Karl Rove and that therefore their testimony about me is incorrect. 

ABRAMS:  But that‘s pretty tenuous.  I mean, that‘s—maybe they could have heard of it through Karl Rove.  I mean, does he have anything to back that up, that they heard it through Karl Rove and Ari Fleischer?  I mean, both of their names have been thrown around in connection with this investigation. 

SHUSTER:  Well, and that‘s where it gets really interesting.  And that‘s where you might see the interoffice White House fireworks, because Ari Fleischer testified to the grand jury that Scooter Libby took him out to lunch on one occasion, and during this one occasion Scooter Libby was told—Scooter Libby told Ari Fleischer, hey, Wilson‘s wife works at the CIA, and such information is not widely known. 

Fleischer took it to mean that that was an instruction to him to leak the information.  We don‘t know if he did.  As far as Karl Rove is concerned, Karl Rove and Scooter Libby had a crucial conversation in which Rove told Libby, hey, I have had a conversation with Bob Novak and Bob Novak is going to publish this information about Joe Wilson‘s wife. 

What Scooter Libby may be trying to do here is if he can say—or at least introduce the idea that, hey, these were other people in the White House who knew something about Valerie Plame‘s status, he might be able to convince the jury that perhaps the reporters‘ stories are not as airtight as it seems. 

But the other problem to him—that Scooter Libby has is his own testimony.  And that‘s where you get into this whole idea that Scooter Libby wants to try and show that Valerie Plame‘s identity was the least of the issues that they were focused on in the White House when they were trying to undermine Joe Wilson. 

That‘s why you have Scooter Libby saying, look, there were authorizations to leak classified information, but this was intelligence about Iraq.  We didn‘t care about Valerie Plame‘s identity.  And if he can argue that in front of the jury, then maybe he convinces the jury that if he made mistakes, if he couldn‘t remember exactly who said what about Valerie Plame‘s identity, well, that‘s OK because Scooter Libby really wasn‘t that focused on Valerie Plame‘s identity in the first place. 

Again, every legal expert I‘ve spoken with say that this defense a stretch on both counts, both as far as trying to explain his own testimony and then trying to attack the reporters‘ testimony.  But, at this point, Scooter Libby is trying to throw everything against the wall and see what sticks.

ABRAMS:  Yes.  I was just going to say, it‘s like taking play dough and throwing it up—you know, kids try and see if it will stick against the wall and throw it up again and again and again. 

But again we need to keep the focus on the issue here, which is that he is only accused of lying and obstructing justice in terms of what he said in front of the grand jury.  And it seems like every time Libby‘s lawyers file one of these motions, what they‘re trying to do is broaden out the case and make it about more than just, did he lie? 

SHUSTER:  That‘s exactly right.  In fact, that‘s why Patrick Fitzgerald has argued that all these documents Scooter Libby wants, regardless of what Scooter Libby was told by whom inside the White House, that these conversations irrelevant.  The only thing that prosecutor Patrick Fitzgerald has said that matters in this case is, do you believe Scooter Libby or do you believe the reporters, because that‘s where your contradiction is.  The rest of this stuff, according to Fitzgerald, is irrelevant.  Of course, it‘s up to the judge to decide if he‘s going to allow Scooter Libby to try to follow these paths in his defense that he is setting up in these documents. 

ABRAMS:  David Shuster, as always, thanks. 

SHUSTER:  You‘re welcome, Dan. 

ABRAMS:  Coming up, many of you writing in saying the DA investigating the Duke rape allegations is playing politics.  Your e-mails are coming up. 

And our continuing series, “Manhunt: Sex Offenders on the Loose,” our effort to find missing offenders before they strike.  We are in North Dakota, authorities are looking for Waylon Longie, he‘s 32, five-10, 160, he is convicted of gross sexual imposition, has not registered his address with the state.  If you have got any information about where he is, please contact the Bureau of Criminal Investigation, 1-800-472-2185. 

We‘ll be right back at Duke University in a moment.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  No time for a “Closing” today, but there‘s always time for “Your Rebuttal.” 

Mike Nifong, the Durham district attorney handling the Duke lacrosse rape investigation under fire.  His comments at a forum at North Carolina Central University where the alleged victim is a student, that Nifong is up for reelection on May 2nd, and he is running against an African-American and former colleague in an extremely close race.  

Mike Freimuth in Bellingham, Washington: “Your guest made a point that a district attorney is a member of law enforcement, not a politician.  The fact that they‘re elected by the people makes them have to be politicians.  Wouldn‘t it be easier for them to do their jobs if they weren‘t elected?”

From Brunswick, Georgia, Jeff Williams: “I reluctantly have to think the prosecutor in the Duke case has backed himself into a corner politically and is taking the political route to save face.”

Finally, Catherine Pleickhardt in Fredericksburg, Virginia is angry at us: “I hate to be rude, but the English grammar in this article is bad.  Each day I read several articles on cnn.com and believe that your site is in need of an editor with better English skills.”

Hey, Catherine, we‘re not on CNN.  Be back in minute with more from Duke.

(COMMERCIAL BREAK)

ABRAMS:  As the bells ring here at the Duke Chapel, I have to say it‘s good to be back on the campus.  It‘s too bad that it‘s under these circumstances.  But we are going to get to the bottom of this case. 

Coming up next, “HARDBALL” with Chris Matthews, see you later. 

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