updated 4/17/2006 11:36:28 AM ET 2006-04-17T15:36:28

Guest: Jonna Spilbor, Yale Galanter, Norm Early, Susan Filan, Larry

Kobilinsky, Bob Ekstrand, David Cornwell, T.J. Quinn, Rob Baggette, Russ

Henderson

DAN ABRAMS, MSNBC HOST:  Coming up, I've been the first one to see the pictures the lawyers for the Duke lacrosse players say prove that their clients could not have raped anyone.  The program about justice starts now.

Hi, everyone.  First up on the docket, another ABRAMS REPORT exclusive.  I have now seen all of the pictures that the attorneys representing the Duke lacrosse players say will help prove that no rape occurred at the of campus house.  I also spoke with their expert who says he authenticated the sequence of the photos.  All right.  So let me just lay out for you what I saw.

The first were taken over a period of about two minutes, beginning at about midnight.  The women, partially naked and dancing in the living room, surrounded on the three sides that we can see by men sitting on couches and chairs.  The alleged victim is already missing one shoe, which is seen in a photo.  Someone's watch in one of the pictures consistent with the time stamp on the camera.

The last picture in this series shows one man giving a thumbs down, another is talking on his cell phone with his back towards the dancers, while a third appears to be either pouring beer or pretending to pour beer on the women who are in a sexual position on the floor.

About a minute and a half passes before the next picture.  It's during this time that both sides seem to agree something was said that led the women to stop dancing.  Presumably a reference to a broomstick.  Exactly how and why it was said depends on who you ask.

The next picture at almost 12:04 a.m., shows the women leaving the living room, going towards the back of the house.  She says she and the other dancer leave but are coaxed back inside, where they're separated and that then she's brutally raped and assaulted by three men in the bathroom.

The defense team says the women locked themselves in the bathroom, where based on other evidence, the accuser must have done her nails.  They say the other dancer changed her clothes while the men were outside trying to get them to leave.  Twenty-seven minutes later, at 12:30 a.m., the next series of pictures begins.  The accuser is seen standing on the landing of the back of the stairs outside the house wearing a red and white lace halter top body suit and only one of her white high heels.

A few seconds later, another picture in the same spot, she appears to be smiling, almost a demure smile and holding her cell phone.  The defense asked why would she be smiling if she had just been brutally raped.  About seven minutes later, a series of another three pictures.  The accuser is lying on her side on the stairs, her head at the top, her feet at the bottom, she's only wear one shoe.  You can see scrapes on her legs and an abrasion on her arm.  The defense says these injuries came from a fall which landed her in that position and point out that a door mat is in a position that would suggest she slipped as she may have been coming back to get her shoe.

The defense also points to a neighbor who says around the same time he heard a woman talking about her shoe.  What's most interesting about this picture is what the defense says is nail polish on the handrail.  It was not present in an earlier picture.  It appears to be consistent with the polish on her nails.  They say it supports the defense theory that she had applied it while in the bathroom and that they say could explain why her fingernails were found in the bathroom.

A few minutes later, the final picture.  One of the men standing beside a car with what appears to be the leg of the accuser hanging out of the door.  The defense says that this lacrosse player carried the accuser to the other dancer's car, again, there appears nail polish, a little bit of it, visible on the car, at least that's what the defense says.

All right.  So how significant is this?  Joining me now, defense attorney Jonna Spilbor and Yale Galanter, a spokesman for the National District Attorney's Association and former Denver D.A. Norm Early, MSNBC legal analyst and former prosecutor Susan Filan and DNA expert and professor at John Jay College of Criminal Justice, Larry Kobilinsky.  First, Jonna, you're here, what do you make of it?

JONNA SPILBOR, CRIMINAL DEFENSE ATTORNEY:  Wow, game over for the accuser.

ABRAMS:  Why?

SPILBOR:  Because, first it's kind of odd that you would have pictures documenting that something didn't happen, but they have pictures documenting that this rape did not occur.

ABRAMS:  You know, they could make the argument, the prosecutors could make the argument that maybe, and we're assuming for a moment that the pictures are authentic and that they're valid and that they're real.  If they turn out to be a problem with it, we'll have another discussion, but for the purpose of this discussion, let's assume that they're real.  What about the seven minute period between the time she is seen smiling and the time she is seen lying at the top of the stairs?  Now I guess there could be an argument that something could have happened in that period.

SPILBOR:  OK.  And if something did happen during that period, is seven minutes long enough for three people to commit the acts that she claims were committed against her?  Maybe there was an argument, maybe something unpleasant happened, but it doesn't necessarily point to the rape that she is claiming.

ABRAMS:  Well it also - and remember, Susan, she had claimed at least according to the information that we had, that it could have lasted up to 30 minutes.

SUSAN FILAN, FORMER PROSECUTOR:  Right.  Exactly.  And I think that's troublesome and the other thing that I have find troublesome is it sounds like from your description, Dan, that her clothes are not ruined in any way, not messed up in any way.

ABRAMS:  That's a really important point, Susan, and I should have said in my introduction.  From seeing the pictures, her clothing, while she is lying in a—you know, all you see is the back of her lying at the top of the stairs, her clothing is all intact.  And I guess that is significant.  I'm sorry I interrupted you, Susan.

FILAN:  That's not what I would expect, again, who knows, but that's not what I would expect if she had been brutally raped in that bathroom for 30 minutes.  I would imagine that her clothes would have been ripped off and she would have somehow run out of there or gotten herself out of there, not necessarily with time to put herself completely back together, so that's troublesome to me.

ABRAMS:  And Susan, we've gotten the impression and again, we don't have her statement from the authorities, but we've gotten the impression that she ran out, right?  I mean, at least that's the impression I've gotten up to this point.

FILAN:  Well the impression I got is that she fought for her life, she thought she was going to die, they were choking her, she was clawing and scratching, you know, to resist this assault and to get them off of her and to get them away from her, so I would expect that she would look an absolute mess and to hear that she's standing there kind of smiling demurely or coyly doesn't sound consistent with her tale, but again, this is just so difficult to figure out.

ABRAMS:  And Norm - let me play devil's advocate here for a moment and that is some sources are telling me that she is now changing her account to say it could have felt like 30 minutes, but it could have been as little as three minutes.  Does that change everything?

NORM EARLY, FORMER DENVER D.A.:  Victims are notoriously poor when it comes to the amount of time that an event occurs because of the hysteria located with the event.  But this must be some of the slowest drying nail polish ever created if all this happened, you find it even at the car, some fresh nail polish at the car, but what does bother me about this entire thing is that she doesn't seem to be in a panic, she doesn't seem to be hysterical after the event.  However .

ABRAMS:  Keep in mind, to be fair, she was—I mean, she appeared to be lying down either, you know, either completely intoxicated or drugged or assaulted.  I mean, we don't know what had happened to her, but she is lying down on the top of the stairs and you don't see her face, you only see her from the back.

EARLY:  OK.  And you know, and this may be self-preservation, Dan.  After an event of this nature, and you still surrounded by a whole lot of men, don't know what's going to happen next, maybe the best thing to do is to chill out, think about it, whatever, before you make another move.

ABRAMS:  Let me ask—I know this is going to sound like a somewhat ridiculous question, but I'm going to ask one of the women this, Jonna, how long does it take nail polish to dry?  It's important because the point is that if they were in the bathroom, let's say around 12:20 a.m., and let's say she was as the defense claims, putting on press on nails, polishing, etc., and 15 minutes later, she's outside, would it still be wet enough do you think to transfer .

SPILBOR:  It would be wet enough to transfer if she pressed it hard against something.  If she scraped it against a railing, scraped against a person, it would transfer in 15 minutes.

ABRAMS:  Susan, do you agree with that?

FILAN:  Dan beings I'm sorry, I have absolutely no idea.  I'm sorry.

ABRAMS:  I apologize for being so sexist about this, but I'm going to assume that Larry Kobilinsky, Larry, I'm assuming you're not a nail polish guy.

LARRY KOBILINSKY, JOHN JAY COLLEGE OF CRIMINAL JUSTICE:  I seldom wear nail polish.

ABRAMS:  That's what I figured.  All right.

This is serious stuff, and Larry, how important are photographs?  I mean, the problem with photographs is you can interpret them in different ways, right.  Based on the way—I've described them the best that I can, they're 21 photos total, but even after looking at them, you know, it seems that they will be helpful to the defense.  But with that said, you can always interpret photos in different ways.

KOBILINSKY:  You seem to be reading my mind.  I was just about to say that.  First of all, you want to move beyond the he said-she said.  You need physical evidence.  Either it's going to corroborate a story or it's not.  We know about the DNA.  That apparently was inconclusive, we have no evidence of any sexual relations that took place that morning.  Now we have photographs that appear to be consistent with the defense story.  But again, as you said, they can be interpreted in different ways by different sides.

Nevertheless, the way you've described these photographs, I think they are essentially inconsistent with the allegation of a brutal assault in the bathroom.  I think that the nail polish can be transferred, just like any other object can be transferred, the low card (ph) exchange principle, abandon so I think—and so I think at this point, I'll say it again, I don't think we have the whole story, but what we have thus far is insufficient for indictment.

ABRAMS:  Yale, it sounds to me like the defense's theory at this point is we're not going to dispute someone assaulted her that night.  We're simply going to suggest—because they haven't seen the pictures and I think that they're going to assume that she need major medical attention that night, and they are going to say someone assaulted her after the time that 911 was called and before the time she went to the hospital.

YALE GALANTER, CRIMINAL DEFENSE ATTORNEY:  Yeah, absolutely.  What these pictures showed, Dan, is that the window of opportunity for this crime to have occurred is at most seven minutes.  Let's think about what's has to happen in that seven minutes, clothes off, clothes on, three men have to assault here.  There has got to be a struggle.  The picture after the seven minutes that you saw shows that her clothes are intact, they are not torn, they are not tattered, she doesn't look disheveled.

This is clearly another homerun for the defense, it's another insurmountable blow for the prosecution and what they're left with is this complaining witness' story and her credibility gets worse by the day.

ABRAMS:  But Norm, I'm going to give Nifong a little more credit in the sense that I'm going to assume he's got something more, because look, I've got to tell you, I don't even know that he has seen these photographs that I'm talking about here.  As far as I know, he had not seen these photographs and may be hearing about it for the first time now.

EARLY:  Let's be clear.  Rapes don't necessarily occur with the clothes off.  So there does not have to be a clothes off and clothes on scenario here.  As a matter of fact, many rapes occur with the clothes on.  What it seems to me here, these photographs indicate that this woman's story must be, must be at least somewhat consistent for the district attorney to continue to proceed, if he has access to these photographs.

If her story is not consistent with what these photographs show, then there will very likely not be an indictment in this case.  And it seems to me that the district attorney has a lot of cards here that we're not aware and we don't know quite how these photographs fit into what the district attorney knows about the case.

ABRAMS:  I've got to tell you.  I think that this D.A. is going to need the testimony of one of these players, and I've got to believe—

KOBILINSKY:  He's got to have something.

ABRAMS:  If there were 40 people at this party and this happened, that he will be able to get, right?  You always get—norm, you were the D.A.  of Denver, you always get somebody to crack in you've got—if you've got 40 people.

EARLY:  Dan, let me tell you.  We used to have a bar in Denver where we had a number of murders and every time a murder happened in that bar, everybody was in the bathroom.  You've got 50 people if a 5 by 5 bathroom.  We finally had a murder in the bathroom and everybody was in the bar.  I mean, you don't necessarily get statements from patrons, nor do you necessary live get statements from team members just because there are a lot of them.

ABRAMS:  Fair enough.  Everyone is going to stick around.  Coming up, several defense lawyers telling us they expect someone could be indicted on Monday as Durham police search more of the players' dorm rooms and another grand jury investigating major league baseball slugger Barry Bonds.  This time he could be charged with perjury for lying about his alleged steroid use.

Plus, another female teacher in trouble for sleeping with her students.  But this one's got a lot more to it.  Authorities say she tried to get one of them to murder her husband.  Oh boy.  Your email at abramsreport@msnbc.com.  Please include your name, where you're writing from ....

(COMMERCIAL BREAK)

ABRAMS:  We're back.  An indictment in the Duke University gang rape investigation could be just days away, after meting with district attorney Mike Nifong, three of the lacrosse players' attorneys say they expect the D.A. to present at least two of the players' name to a grand jury on Monday.

Meanwhile, Durham police paid a visit to Duke's campus, spending about an hour and a half in one of the dorms.  The school says it wasn't a search.

Defense attorneys tell NBC News that one of the men the alleged victim may have identified, wasn't actually at the party.  But that's again according to the defense.

Susan, if we're now at the time we are, at the day we are, and they are still trying to figure out who wasn't at the party, is that a bad sign for prosecutors or is this just the kind of expected investigation you would see at this point?

FILAN:  No.  It's what I would expect to see at this point.  This investigation has continued long after indictments, if there are any, long after arrests, if there are any, right up until trial preparation, because this is the case that's got so many potential witnesses and so much information and maybe some or no forensic evidence, but this investigation is going to continue.

ABRAMS:  Yale, but I guess the defense would almost hope that she would identify someone that wasn't at the party, right?

GALANTER:  Yeah, I mean the defense is looking for anything that's going to impugn their credibility and what the prosecution is doing with searching the dorms, Dan, and you hit it in the last segment is they're going to put as much pressure on the three boys to try to get one of them to flip, because if they get somebody on the inside, that's the only shot that the prosecutor has right now.

ABRAMS:  Here's - we talked about this last night but it's significant and that is the police officer calling the dispatcher and describing seeing the alleged victim, this is after 911 was called, this is within probably an hour and a half of the time that she says that she was raped.  Here's how the police officer described it.

(BEGIN AUDIO CLIP)

POLICE OFFICER:  This is going to be a 24-hour hold.  She's 1056 and unconscious.

DISPATCHER:  1040.  You need a medic truck?

POLICE OFFICER:  1040.  She's breathing, appears to be fine.  She's not in distress.  She's just passed out drunk.

(END AUDIO CLIP)

ABRAMS:  All right.  Let me also play the 911 call that was made that day, because remember, you just heard the police officer say he did not think that a medic needed to be called.  Here's the 911 call.

(BEGIN AUDIO CLIP)

DISPATCHER:  Durham 911.  Where is your emergency?

CALLER:  Yes.  Um.  I'm at Hillsborough 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 will not get out of their car.  She's like intoxicated, drunk or something.  She's - I mean she won't get out of the car, period.

DISPATCHER:  Did 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's 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.  Do 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 Norm Early, you've got two people, the security guard and the police describing her as intoxicated but neither seemingly concerned for her personal safety.  Significant or overstated by the defense?

EARLY:  Well, Dan, prosecutors take their victims as they find them.  Now this has been described as a brutal rape.  In my estimation, any rape is a brutal rape.  Especially one that allegedly has three people involved in it.  It does not mean that she had black eyes, it does not mean that she is in a total state of sobriety when it occurred.  It does not mean that she has a bloody nose.  As I understand it, she had bruises on her arms and bruises on her leg.  When a police officer looks at her, he said hey, she doesn't need a medic.  Well if you have bruises on your arm and bruises on your leg, you're probably not going to need a medic and that police officer at that point does not know that a rape allegedly occurred here, so the intoxication is certainly another issue that is going to play to the benefit of the defense.  Whether or not it yields a verdict of not guilty or whether or not it results in no indictment, is very difficult to tell at this time.

ABRAMS:  Yale, why would the defense attorneys all be saying now that they expect an indictment?  I mean, let's assume that that's true, they actually do think that the D.A. is going to indict.  If you're the defense attorney here, is there anything else you can do to try to prevent the D.A.  from indicting?

GALANTER:  No.  I think the defense lawyers are absolutely convinced both by what they've heard from the prosecutors and what they're hearing from the media sources that they have that an indictment is evident.

We've been discussing on the show on the show for the past two weeks how this arrest, indictment process is probably being motivated by politics.  We know this prosecutor is under a lot of community pressure, he is facing reelection.  He is running against two other people.

ABRAMS:  Even if there's a political motivation, you have got to admit that he's probably also acting based on the fact that it appears she was brutally raped by someone.

GALANTER:  Well, she's claiming that she was brutally raped.  We don't know—wait, Dan.  We don't know whether or not she had a fight with her boyfriend, whether she changed her clothes.

ABRAMS:  But again.  That's why I said by somebody.

GALANTER:  (inaudible) she was raped when she got to the hospital.

ABRAMS:  Let me clarify by I said.  Let me repeat it.  By someone is what I said.  I didn't say by the .

GALANTER:  Right.  And the time line seems to indicate that it was not a Duke lacrosse player.

ABRAMS:  That's fine.  For you to suggest the only reason the D.A. is going to go forward is because of politics, look, whether he's doing it in good faith or not, I think that in the end .

GALANTER:  But he's going to arrest the wrong people.

ABRAMS:  Look.  That may be true, but Jonna, I think that in the end when this D.A. goes forward, he's going to have a very solid case that somebody assaulted her.  Would you agree?

SPILBOR:  I wouldn't agree.

ABRAMS:  Really?

SPILBOR:  The facts are not adding up that somebody assaulted her.  First of all if a police officer comes to you and you just been raped, how come you're not screaming that you were raped.

ABRAMS:  You're not answering my question.  You're saying was she raped by the lacrosse players.

SPILBOR:  By anybody.

ABRAMS:  The defense theory will be that she was raped possibly in the time between the time the officer sees her, what he describes as drunk and the time she goes to the hospital hours later.

SPILBOR:  But I don't know what proof do we have of that other than the (inaudible) nurse claiming that she had injuries consistent with a rape which could easily be consistent with just sex so I'm not convinced that a rape occurred at all.

ABRAMS:  I mean, look.  Norm, we haven't seen the evidence, but unless this D.A. is really acting and really beyond bad faith and horrible faith, you know, you've got to believe that at the very least, there is evidence, you know, she was in the hospital for five hours or something, that there was some sort of, you know, savagery committed on her by someone.

EARLY:  Dan, I'm a little bit confused.  I thought she went from the police officer who initially saw her directly to the hospital.  Is that an error?

ABRAMS:  No.  No.  No, that's an error.  We don't know exactly what time she was admitted to the hospital, but the sense we have is that she was admitted sometime between 3:00 and 6:00 in the morning but she was not immediately taken to a hospital, because as you hear the police officer there say, she didn't need to go—she didn't need a medic.

EARLY:  She didn't need a medic.  And I don't know if after that time she told the police officer she had been sexually assaulted and therefore she was transported .

ABRAMS:  That's what we don't know.

EARLY:  . directly to the hospital but if that is not the scenario and actually showed up at the hospital two to three hours later.

ABRAMS:  And it appears possibly in different clothes, too.  That's

the other issue.  She may have been wearing different clothing as described

.

GALANTER:  She changed.

ABRAMS:  Yale, how do you know that?

EARLY:  And if she was as drunk as people say she was then it seems to me there's a tremendous window of opportunity where she could have been sexually assaulted by someone else.  Again, it would be my fervent hope that this district attorney has rule out that possibility before taking this case to the grand jury.

FILAN:  Dan?  Dan?

GALANTER:  We know from the father's interview that she had contact with the boyfriend.  After she had the initial contact with the police officer and after the hospital when she showed up at her dad's how.

So we know that her boyfriend was involved somehow, we just don't know how.

ABRAMS:  Go ahead real quick, Susan, then we've got to .

FILAN:  Dan, there's one other possibility that I'll throw out there.  I don't know how plausible it is but it's possible that the D.A. is going to the grand jury to seek not a bill of indictment, but a no bill, to say he put this before the grand jury and it was the grand jury that didn't find probable cause.

ABRAMS:  He would do that, I would think after the election, if it was all political.

FILAN:  Not necessarily.  If it's such a hot potato and he has to deal with it now.  That may be the way of dealing with it.

ABRAMS:  Fair enough, fair enough.

Jonna Spilbor, Yale Galanter, Susan Filan, Larry Kobilinsky.  Thanks.  Norm is going stick around the coming up, rumors are abuzz of upcoming indictments as we have been talking about We have an exclusive with an attorney for 32 of the players and Major Leaguer Barry Bonds reportedly being investigated for perjury, the grand jury's been impaneled they say.  They want to know if he lied about using steroids.

And our continuing series, “Manhunt,” sex offenders on the loose, our effort to find missing sex offenders before they strike.  Our search today is in North Dakota.  Authorities are looking for Terrence Beston, 32, 5'4”, 120, was convicted of attempted sexual abuse, has not registered his address in the state.

If you've got any information on his whereabouts, please contacted the North Dakota Bureau of Criminal Investigations.  1-800-472-2185.

Be right back.

(COMMERCIAL BREAK)

(NEWSBREAK)

ABRAMS:  That is a picture that was put up on campus of the Duke lacrosse team, by people who were demanding them to come forward.  There have been reports as of late that many of the defense attorneys expect an indictment in this case as early as Monday.  Why are they expecting that?  What is happening in the case?  We are back with an exclusive interview with the attorney for 32 of the players, Bob Ekstrand joins me now.

Bob, thanks for coming on the program.  Appreciate it.

We have been hearing a lot from the defense team that you all are expecting or fearing an indictment coming as early as Monday.  Why do you think that?

BOB EKSTRAND, ATTORNEY FOR DUKE LACROSSE PLAYER:  Well, there is talk of an indictment that may be presented to the grand jury on Monday, but like all things in this case, we really are having a hard time relying on anything we hear.  We are simply going forward as we began, these boys are innocent and we have now demonstrated that through pictures, we demonstrated it through the statements of witnesses, and we finally demonstrated it through the test results on the DNA.

All of these young men are innocent and frankly, Dan, what we're really concerned about right now is not so much what happened before the 911 call, but we're really trying to figure out now what happened after the 911 call.  After 1:22 in the morning, where the police officer is now heard on a dispatch saying that the accuser in the case was in no distress and was not in need of even a medical truck, but instead he was taking her to the 24 hour hold, and we been trying for weeks - weeks now, really, to get simply the police logs that might reveal simple facts like who reported to this scene, who responded to the 911 call, where did that officer take her?  All we know is she's now seen in the back of a police cruiser heading to the police station at 1:30 a.m.  And we have no idea who's taking her there.

ABRAMS:  Do we know for certain what time she checked into the hospital?

EKSTRAND:  We have no idea, and that's another really odd fact that nobody seems to know.  You would think that in the average case, certainly in the average case, you know exactly when she reported to the hospital, in what condition she reported to the hospital, and you also know who whom she first said this rape occurred, and we don't know any of those things and we've been trying to get them through what are typically publicly available documents.  They've been denied, our requests have consistently been denied and that's what we want to find out now.

ABRAMS:  Do you think there's anything that you can do now to prevent the D.A. from moving forward?

EKSTRAND:  Well, that question assumes that the D.A. is moving forward to an indictment, and frankly, I'm not prepared to believe that until I see it.  Because we all know that any indictment in this case would be contrary to all the facts available.  And really, what I think we should focus on is what happens—what happened to this woman between 1:30 in the morning and whatever time it was that she appeared at the hospital in hysterics, and in obvious poor condition.  She had obviously apparently to one report at least, according to one report, that it appeared that she had been obviously beaten.

That was not true when the police officer took her away.  He did not take her to the hospital.  He clearly rejected the need for a medical truck and took her to the jail.

ABRAMS:  We were talking earlier in the program about whether any of the players could, might, might the D.A. have something that we don't know about.  Do you know for certain that none of the people who were at that party have turned and are ready to testify against certain members of the team?

ELKSTRAND:  I know—I know for certain that none of these young men have, quote unquote, “turned” and are ready to testify against anyone on this team, because each and every one of these boys knows that they are innocent.  They have nothing to say in that regard.  They have no testimony to give that would implicate anybody else on the team.  And frankly, I think it's stunning that at this point on the eve of what's apparently a serious consideration of bringing this case to the grand jury, we still don't know what happened to this woman before she got to the hospital.  We've only now just found out she didn't go there from the Kroger.

ABRAMS:  What happened at the dorm rooms last night?

ELKSTRAND:  Has night was a bit of a spectacle on campus.  As I understand it, from one of the players, the Durham police entered a dorm that is the home of several lacrosse players, they entered without authorization, without a warrant, they went inside, went upstairs, found various lacrosse players, and interrogated them, asking them questions like, what's your alibi, and shouldn't we have this conversation outside of the public eye, meaning let's go into your room here and talk about this further.

The police did not notify us as we understand it, they did not notify Duke University or Duke University police.  That is yet another strange event in this long series of oddities that has led us here.

ABRAMS:  Bottom line, Bob, you're not convinced that Monday there will be an indictment, correct?

EKSTRAND:  No, I'm not convinced.  I can't imagine any set of facts, based on what we know, that would support that.

ABRAMS:  Bob Ekstrand.  Thanks a lot.  Appreciate it.

EKSTRAND:  You're welcome.  Thank you.

ABRAMS:  Coming up.  Major leaguer Barry Bonds reportedly being investigated for perjury.  The grand jury has been impaneled they say.  It's all about lying about steroids.

Plus a high school teacher under arrest for having sex with at least four of her students.  And trying to get one of them to kill her husband.  We'll talk to the sheriff investigating.

(COMMERCIAL BREAK)

ABRAMS:  We're back.  He may be just a few homeruns shy of beating Babe Ruth's record, but San Francisco Giants slugger Barry Bonds might now also be just a few something shy of a federal indictment on perjury charges.

Back in 2003, Bonds testified in front of a grand jury investigating steroid distribution at a sports nutrition center he frequented known as BALCO.  He was given an immunity deal for agreeing to tell the truth and when Bonds was asked about using steroids, he told the grand jury he was clean, he said a trainer gave him a clear substance and cream which he thought was flax seed oil and arthritis cream and claimed to have never knowingly taken steroids, but that trainer and others at BALCO pleaded guilty to distributing steroids and now a new grand jury has been convened, at least according to the “San Francisco Chronicle”, this time to decide whether Bonds lied to the first one.

According to the “Chronicle,” investigators seized calendars that recorded schedules for Bonds' use of steroids and other drugs and his former girlfriend told a grand jury that Bonds admitted to her that he used steroids.

Last night, he tried to dodge reporters' questions.

(BEGIN VIDEO CLIP)

QUESTON:  Do you have anything to say about the grand jury investigation?

BARRY BONDS, BASEBALL PLAYER:  No.  You guys, the baseball game is in there.

QUESTION:  Are you aware that there was another meeting .

BONDS:  How are you doing?  I'm doing great.

UNIDENTIFIED MALE:  Can you guys - Blake (ph), can you like—they're not supposed to be in the hallway here.

UNIDENTIFIED MALE:  Guys, back to the clubhouse.

QUESTION:  We just want to know .

UNIDENTIFIED MALE:  He's not speaking tonight.

(END VIDEO CLIP)

ABRAMS:  Nice.  Joining me now, “New York News Daily News” sports reporter T.J. Quinn, who has been covering the case, sports attorney David Cornwell, who represented baseball player Benito Santiago who also testified in the BALCO case and once again, former Denver D.A., Norm Early.

All right.  T.J., how serious is this?

T.J. QUINN, “NEW YORK DAILY NEWS”:  It's extremely serious.  It's been going on for quite some time now.  The news that broke was more that a grand jury had been impaneled, it was not news that they were looking into the perjury charges, but the federal government is very serious about this.  Major League Baseball has been keeping track of their own sources, and they know it's serious, and I think they have hope that the federal government will solve their problem with Barry chasing Hank Aaron's record by prosecuting him.

ABRAMS:  Norm, how much of this comes into play in deciding whether to seek a perjury indictment?  When I say how much of this, I mean how much of his notoriety, how much of who he is, etc.?

EARLY:  Dan, I think that in part because of his notoriety and because of what he does, there's a lot of circumstantial evidence that even though he never tested positive for steroids, that he in fact took steroids, now how do you get it out of the circumstantial category?  Well, him bragging to people that did he it.  Well he never bragged about it, but what he did do and I know that her testimony can be assailed, but what he did do, at least according to her, is confide in her that he was taking steroids.

Now if you're going to confide in someone, you're not going to do it to everybody in town.  You're going to take someone that you're close to and you're going to tell them with accuracy what you're doing and that would fit as far as the girlfriend is concerned, so you have the circumstantial evidence, you have the logs, and now you have the girlfriends saying, he told me.  They can attack her, but I think that's a very, very crucial piece of evidence, because he told someone that he was that close to.

ABRAMS:  David Cornwell, if you're Bonds' attorney, you say to him at this point, I'm sorry to say this to you, but they're going to indict you.

DAVID CORNWELL, SPORTS ATTORNEY:  Well, I don't know if they're going to indict you, but I'll tell you, there certainly is cause for concern.  I was in the grand jury room or waiting area the day that Barry Bonds testified, Bonita went the same day.  We had an agreement to view documents seized in the BALCO raid relating to Benito and Michael Rains (ph) thought he had the same agreement with the government and the government reneged.  So they must think they have something on Barry.

But I also think federal perjury charges are rarely brought and even fewer convictions are won.  I think this is the product of a zealous prosecutor playing off Barry's celebrity.

ABRAMS:  Do you try and cut a deal now, David, if you're his lawyer?

CORNWELL:  Not now, certainly not now, but if the government came to you, I would think this would be similar to what happened with Chris Weber in connection with the University of Michigan booster case.  They'll probably give him a chance to plead and if they offered it, I would take it.

ABRAMS:  An T.J., do you think this is ultimately going to prevent him from going down in baseball history?

QUINN:  Well, I mean, he's going to go down in baseball history one way or another.  It's more how he goes down.  I don't know that—how he's going to go after Hank Aaron's record if he's fighting off a federal indictment.  Right now he's having trouble getting going and no one served him with anything yet.  His health is not good, his knee is in terrible shape.  He's not a young man.  There's a good chance that his health could keep him from doing that, but he's going to be remembered one way or another.

ABRAMS:  Here's what Bonds said at a press conference in February 2005.

(BEGIN VIDEO CLIP)

BONDS:  This whole thing in sports now has turned into a big circus.  I don't know Canseco, besides hello and good-bye.  It's sad, but—I don't bear any weight into anything he says.  To me, Canseco, you have to come with a whole lot more than what you're talking about and fiction is fiction, man.  I mean, there's a whole bunch of those books and stories out there basically, you know.  It's just—it's to make a buck.  That's all it is.  It's about making money.

(END VIDEO CLIP)

ABRAMS:  That's him talking about Jose Canseco, who wrote a book about everybody who was using steroids.  David it does seem to me he's avoiding the question and probably smartly so.

CORNWELL:  Well, he was obligated to testify truthfully in front of the grand jury and his testimony was if he ingested a pr prohibited substance, it was unknowing and I'm not quite sure even with the documents, the calendars that the government has, that they'll be able to prove that he knowingly ingested a banned substance.

What he may have said to his girlfriend would be hearsay and then her statement would be hearsay.  So I think they have a double hearsay problem to get a conviction.

ABRAMS:  We shall see.

EARLY:  Although that would be a statement of the defendant.  Dan, that would be a statement of the defendants to the very charge here, so that wouldn't be hearsay.  It would be admissible evidence, but the girlfriend could be attacked.

ABRAMS:  Fair enough.  Right.

T.J. Quinn, David Cornwell, Norm Early, thanks a lot.  Appreciate it.

Coming up, another teacher arrested for having sex with her students, more than one.  Police say this one went a lot further than the others.  She, they say, actually tried to get one of her students to kill her husband.

(COMMERCIAL BREAK)

ABRAMS:  An Alabama teacher charged with having sex with at least four of her students may also have tried to get one them in on a plot to murder her husband.  Police say 30-year-old Sharon Lynton Rutherford, an English teacher, ma have slept with some of her victims who are under the age of 16 on school grounds and at least one of them says she tried to get him to help her kill her husband.  A gym teacher.

The boy may have ultimately refused because he liked his teacher's husband too much.  Police are still investigating whether more students were involved.  Rutherford has been charged with solicitation of murder, first degree rape, second degree sexual abuse, two counts of enticing a child for immoral purposes.

Joining me now, Russ Henderson, a reporter for the “Mobile Register” newspaper in Mobile, Alabama and Detective Ron Baggette of the Clarke County Sheriff's department who joins me on the phone in Alabama.  Thanks for both of you for coming on the program.  Appreciate it.

All right.  Detective Baggette, how did you come to the point that we're now, did one of the kids go to the parents and say she just tried to get me to kill her husband?

ROB BAGGETTE, CLARKE COUNTY DETECTIVE (on phone):  No, on the part of the solicitation of murder, the child, during the interviews I was conducting with some of the students, that's where it was brought forward and that's where I learned that from.

ABRAMS:  Was it real?  And when I say real, I mean, was there the sense that she actually wanted him to do it?

BAGGETTE:  Yes.  I believe it was.  You know, it was—it was—it really caught me of guard at first and then after further investigation, looking into it, it was very much real.

ABRAMS:  And the boy said he couldn't do it because he liked the gym teacher too much?

BAGGETTE:  Yes.  Basically, he did meet the husband and from what I understand, he liked him, and he just didn't feel like going through with it.

ABRAMS:  Russ, how old were the various victims, first of al the people she had sex with?

BAGGETTE:  Well, all I can really say is it was four students that right now that we know of that was involved.

ABRAMS:  All right.

BAGGETTE:  And two of them, there was some sex, you know, that took place.  And there was two that was under the age of 16, there was some sexual activity that took place, and that's going to be where you're enticing a child in a room for immoral purposes comes into effect.

ABRAMS:  Let me ask Russ Henderson who is also with us.  Russ, do you know anything more about that?

RUSS HENDERSON, “MOBILE REGISTER”:  I don't have anything to ad to them.  Two were under 16 and two of them were over the age of 16 from what I understand.

ABRAMS:  Russ, how long ago did this story break, just in general, about her having sex with kids?

HENDERSON:  Yesterday.

ABRAMS:  And—let me go back to Detective Baggette, because this is really sort of unbelievable.  When you hear about it.

BAGGETTE:  Yeah.

ABRAMS:  Do you have any sense, I mean, of how she was going about trying to entice these kids, were these actual students of hers?

BAGGETTE:  As far as the solicitation, what are you talking about now, enticing them for the charges?  Enticing them into the room?

ABRAMS:  And were they her students specifically?

BAGGETTE:  A couple of them were, and there was other students, you know, that we talked to, and a couple of them involved, it was older students that were not hers at this time.  They may have been in the past.

ABRAMS:  Russ, do you know anything about these reports the school was made aware of her having sex with kids a while back?

HENDERSON:  Yeah.  From what I understand, back in 2004 the school got an anonymous letter but they didn't have really enough to base an investigation on.

ABRAMS:  All right.  Detective Baggette and Russ Henderson, thanks a lot.

Coming up, your emails on the Duke rape investigation.

(COMMERCIAL BREAK)

ABRAMS:  I've had my say, now it's time for your “Rebuttal.”

Rosemary Roberts writes, “Look over any number of cases of rape and you'll often find that the first responder's (police, fire, paramedics,) was completely wrong.  Her behavior, from what you're reporting today, is very typical of someone who doesn't even know she was drugged.”

Sharon Milne, continuing on the Duke Case.  “The D.A., Mr. Nifong, needed DNA samples from all of the white lacrosse players because the woman said that she could not identify from photographs the three young men who she said had raped, choked and otherwise assaulted her.

“But now Mr. Nifong says that she has been able to ID the boys she says were her assailants.  What refreshed her memory?”

That does it for us tonight.  HARDBALL WITH CHRIS MATTHEWS is up next. 

Have a great weekend.  See you Monday.

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

END   

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