updated 4/21/2006 10:46:46 AM ET 2006-04-21T14:46:46

Guests: Susan Filan, Mark Edwards, Norm Early, Dr. Jonathan Arden, Yale Galanter, Vinda de Sousa, Lisa Wayne

DAN ABRAMS, HOST:  Coming up, we now know what the police found when they searched the dorm room of one of the Duke lacrosse players charged with raping an exotic dancer. 

The program about justice starts now. 

Hi, everyone.  First up on the docket, this is the search warrant executed for Duke University player Collin Finnerty‘s room.  The search conducted a day after Finnerty and another team member, Reade Seligmann were charged with raping a 27-year-old exotic dancer at a party on March 13. 

Among the items the police we now know were looking for, any clothing related to the suspect or the accuser from the night of the attack and any other belongings of hers including a white high-heeled shoe belonging to the accuser—we‘ve got a photo of that—any photographs, still or digital or video of the party, any still or video cameras that could contain footage of the party. 

So, what did they walk away with?  A “New York Times” article from April 4 and a letter addressed to Finnerty from someone at Boston College from September of last year. 

Joining me now former prosecutor and MSNBC analyst Susan Filan (INAUDIBLE) Susan, good to see you, Norm Early, former Denver D.A. and MSNBC legal analyst and criminal defense attorney Mark Edwards, as well as Yale Galanter, who is also a criminal defense attorney.  We‘re also joined by forensic pathologist Dr. Jonathan Arden.  Thanks to all of you for coming on the program.  Appreciate it.

All right.  So Susan, doesn‘t sound like they found much in Collin Finnerty‘s room. 

SUSAN FILAN, MSNBC LEGAL ANALYST: It doesn‘t sound like much at all.  It sounds like a big nothing.  But the way you say it, that letter—why did they seize the letter if it didn‘t have any content whatsoever?  I mean you‘re not allowed to seize things that have nothing to do with the crime.  It‘s sort of fishing expedition...

ABRAMS:  Even theoretically, I mean what could be in a letter from September of last year that could be relevant to this rape?  Maybe he—maybe she responds to him making some comment about rape or something?  I don‘t know. 

FILAN:  Boy, now we‘re speculating about speculation.  I just don‘t know.  But if you had said to me what could be in an e-mail and look at the content of the e-mail that came out, I don‘t know what‘s in that letter. 

ABRAMS:  Mark Edwards, are we overstating this?  I mean look, because they don‘t find anything significant doesn‘t necessarily mean that the case is failing or the investigation is sinking, et cetera, right? 

MARK EDWARDS, CRIMINAL DEFENSE ATTORNEY:  No, it doesn‘t, but taking a newspaper article and a letter from a year ago looks pretty desperate.  It‘s like they felt like they had to take something, so I guess it was that or a box of Oreos.

ABRAMS:  A newspaper article.  I mean, Norm, let‘s presume that the newspaper article is about this case, right, or about, you know Finnerty‘s previous assault charge or something, I don‘t know fingerprints?  I‘m trying to think of what might be—well let me ask—Norm, you take a crack at it and then I want to ask our forensic pathologist.  Go ahead, Norm.  What could be on the newspaper?

NORM EARLY, FORMER DENVER D.A.:  Well, Dan, two things that strike me about the search, one the items that they‘re looking for.  It seems to me that they could have searched for those items...

ABRAMS:  Yes.

EARLY:  ... prior to the arrest warrant. 

ABRAMS:  Yes, a little bit late.  A little bit late, guys.  I mean even if they committed the crime it‘s not like they‘re going to sit there in their rooms with you know the smoking gun, right? 

EARLY:  No, it‘s not going to stay.  I mean they‘re looking for photographs, which easily could have been disposed of and other items like her shoe and those things.  They got—nobody is going to leave them there especially after an arrest warrant has been issued for them and they have been named as a suspect in the case. 

I mean those—and the other thing that strikes me just the items themselves that they captured as they searched this place don‘t seem to be the kinds of items that would propel a case forward, even if you have a newspaper article, even if he had every single article about the Duke lacrosse team would not mean anything more...

ABRAMS:  Right.

EARLY:  ... than a curiosity...

ABRAMS:  All right.

EARLY:  ... about the investigation that he‘s tangentially a part of. 

ABRAMS:  Dr. Arden, you do this stuff for a living, and that is often analyze evidence.  Theoretically, can you think of what could be in a newspaper article from April and in a letter to Collin Finnerty from last year from a woman at a college that could be relevant to the case?

DR. JONATHAN ARDEN, FORENSIC PATHOLOGIST:  Those items just aren‘t ringing any bells with me at all, Dan.  And I‘m as baffled as the rest of the panel.  You know the items that you mentioned from the warrant that made forensic sense for evidence really were things like the items of clothing where you might have DNA evidence on those.  You might have bloodstains, those kinds of things that could potentially corroborate the alleged sexual assault.  The newspaper article, the documentary evidence, I‘m baffled as everyone else. 

ABRAMS:  But does this reflect badly—let me ask Susan.  Does this reflect badly on the investigation?  I mean I don‘t want to pile on unless it‘s warranted.  I‘m happy to pile on if it‘s warranted.  I don‘t want to just pile on for the sake of piling on. 

FILAN:  Sure.

ABRAMS:  Is it warranted for us to sit here and look at the search warrant and look for all the items that they were hoping to find and say boy, this was March 13 that this happened.  We‘re now over a month later and they‘re thinking they‘re going to find these items.  Is it fair to be critical of that?

FILAN:  It‘s fair to be critical but you‘re not necessarily right.  Because they may have come across some new information that led them to believe that these items might be there.  And don‘t forget when law enforcement is doing these kinds of searchers, more often than not we don‘t find what we are looking for.  We spend so many hours and hours and hours looking...

ABRAMS:  Do you usually wait a month?  I mean do you usually wait until after the indictment and a month after the incident?

FILAN:  Well my point to that is you have to have some reasonable suspicion to believe that the item you‘re searching for will be where you are searching...

(CROSSTALK)

FILAN:  ... and so maybe information just came to them.  And maybe what‘s in that letter...

ABRAMS:  But I‘ve read the search warrant. 

FILAN:  Yes.

ABRAMS:  You read the search warrant, and again, you know I got it

right here.  I mean it lays it all out right here.  And they lay out why

they think that these guys committed the crime and again, they lay out the

talking about the nurse doing the rape exam, et cetera, what this particular investigator‘s background is, what the woman claims happened that day.  I mean this is the original search warrant...

FILAN:  Right.  Right.

ABRAMS:  ... for these guys‘ rooms. 

FILAN:  Right.  So you‘re saying there‘s absolutely nothing new in it...

ABRAMS:  Well I‘m just saying, Norm that you would think, again, and this is the point you made before, that they probably would have done this earlier.  I mean it‘s true that in all investigations as you pointed out on this show, as Susan has pointed out on this show, you continue the investigation.  You don‘t just say oh, OK, we‘ve arrested someone. 

Now the investigation is over.  You don‘t do that.  But in this investigation does this reflect badly on the people leading this investigation that we are where we are at this time?

EARLY:  Well it‘s very difficult to determine why they would think there‘s a reasonable suspicion that those items would be in the house or dorm room at this time.  I mean even if they thought they may have been there at some time in the past, it‘s really difficult to believe that somebody is going to keep evidence of that nature from this party in their dorm room for that length of time. 

ABRAMS:  Yes.

EARLY:  It doesn‘t look badly upon them.  You would hope that if they had that reasonable suspicion a month ago...

(CROSSTALK)

EARLY:  ... that they would have issued the warrant a month ago. 

ABRAMS:  Here‘s what—Susan asked me what was—the (INAUDIBLE) request that the state issued this search warrant to secure evidence related to the felonious assault at 610 North Buchanan in which Mr.  Finnerty has been indicted. 

FILAN:  But don‘t forget, Dan, a judge has to sign off on this. 

ABRAMS:  I‘m not saying that it‘s frivolous.

FILAN:  Right.

ABRAMS:  And I‘m not saying that they shouldn‘t have done it.  I‘m just asking whether the fact that they are doing it now...

FILAN:  Right.

ABRAMS:  ... reflects badly on the investigation. 

EARLY:  Well the other thing, Dan—the other thing, Dan that I think is important is that there‘s nothing new in the search warrant. 

ABRAMS:  Right.

EARLY:  You would think that if they‘re getting a search warrant...

ABRAMS:  Oh...

EARLY:  ... and getting it now that they would have some information in there...

(CROSSTALK)

EARLY:  ... that we‘re not already privy to.  It sounds like a rehash of what we already know about this case. 

ABRAMS:  Real quick, Susan...

FILAN:  But Dan, if it‘s just a rehash and there‘s nothing new, there‘s no reason to believe that it would be there now.  It would be difficult to get a judge to sign off on it.

ABRAMS:  What do you mean—they‘ve been indicted. 

FILAN:  Yes.

ABRAMS:  They‘ve been indicted.  They‘re saying—these guys have been indicted of a crime.  And we haven‘t searched their room. 

FILAN:  Yes.

ABRAMS:  What judge is going to say no, you can‘t go search.

FILAN:  But, why does it look bad if they‘re searching now?  Again, maybe...

(CROSSTALK)

ABRAMS:  Yes.  Yes. 

FILAN:  OK.  All right.

ABRAMS:  All right.

FILAN:  But now they‘re doing it.  Now they‘re doing it.

ABRAMS:  OK, but the question is, and one of the questions is going to be in this case, do the investigators do a good job?  Are they...

FILAN:  Well, who‘s on trial here?

ABRAMS:  What do mean who‘s on trial here?  On this program we can ask about everyone.  I don‘t have the power of anyone‘s freedom in my hands.  I can ask questions about whoever I want...

EARLY:  Not only that, Dan...

ABRAMS:  All right. 

(CROSSTALK)

ABRAMS:  I want to switch topics for a minute.

(CROSSTALK)

ABRAMS:  I want to switch topics.

EARLY:  OK.

ABRAMS:  All right.  Because I want to talk about the position that the defense attorney, William Cotter, who is one of Collin Finnerty‘s attorneys, has staked out a clear position.  I want to ask Yale Galanter about this.  Here‘s what he said today.

(BEGIN VIDEO CLIP)

WILLIAM COTTER, COLLIN FINNERTY‘S ATTORNEY:  I can‘t conceive of a plea bargain in this case, no.

UNIDENTIFIED MALE:  So you‘re virtually certain this will go to trial? 

COTTER:  Well I mean unless the district attorney decides to dismiss the charges.

(END VIDEO CLIP)

ABRAMS:  Yale, you‘ve been talking to some of the attorneys in this case.  You also getting the sense that there‘s just no way they‘re going to be able to cut a deal here?

YALE GALANTER, CRIMINAL DEFENSE ATTORNEY:  There will be no deals in this case, Dan.  The defense all along has said a crime has not occurred and now after the arrest of Mr. Finnerty and Reade Seligmann, now they‘re saying not only did a crime not occur but these two fellows weren‘t even there and they‘ve added an iron clad alibi for Reade and Collin‘s alibi, you know, the defense attorney is holding it a little more to the vest but I got to tell you, Dan, if the defense walked into the district attorney‘s office and showed this district attorney concrete evidence that these boys could not have been there when these assaults...

ABRAMS:  You know what the D.A. is going to say, Yale.  I mean and look...

GALANTER:  Well, but Dan, how is he going to argue with a bank photograph and a bank receipt...

ABRAMS:  He‘s not. 

GALANTER:  ... and the cab driver‘s testimony.

ABRAMS:  He‘s not going to argue with the bank receipt.  He‘s going to argue with the time stamps from the party.  He‘s going to say well, they say they got there at 11:30.  How can we be so certain that the time is accurate?  Yes, there may have been a watch that if you enhance it, it looks consistent but that watch also might have been wrong. 

I mean you know they can make a lot of arguments if they want to.  If the D.A. has decided that he is convinced of the credibility of this woman, I don‘t see how the time stamped photographs are going to make him drop—it may lead to an acquittal.  It may lead the public not to believe that it happened, but I don‘t see how it‘s going to change the D.A.‘s position and suddenly lead him to say, all right, I‘m going to drop the charges. 

GALANTER:  But Dan, there are so many holes in the case.  Even if the district attorney doesn‘t believe the watch in the photograph, the forensic expert who gives the timing of the photographs, the entire timeline, you still break it down.  And there are only a couple of windows of opportunity. 

ABRAMS:  Yes.

GALANTER:  You‘ve got a window...

(CROSSTALK)

GALANTER:  ... from like 12:00 to 12:10 and then you‘ve got that other window from like 12:00 to 12:38. 

ABRAMS:  Do you find it significant, Susan, that one of the claims is that they stole money from this woman and yet, Reade is stopping at the bank for money? 

FILAN:  No, I don‘t.  I don‘t understand what the connection is between the bank and the stolen money, but not necessarily because they found some of that money in the house, so no, I don‘t care at all that he‘s going to an ATM after he‘s alleged to have stolen money because I don‘t know if he had the stolen money on him or that he had access to it.

ABRAMS:  Mark Edwards, does the defense team and these defendants get any credit for the fact that from the moment that these arrests—sorry, from the moment that the allegation was made public, the public position of the defense attorneys has been there will never be a consent defense in this case.  Meaning, before anyone was indicted, the attorneys for the co-captains who actually weren‘t indicted were basically saying, I can tell you there won‘t be a consent defense here because we‘re going to say nothing ever happened in that house. 

I found that to be a bold strategy at the time.  And I remember questioning the attorney saying, you know, why are you limiting your options so early on?  And his position was because we‘re so convinced that nothing happened.  Do they get—do the defendants get a benefit of the doubt in the public‘s mind because of that? 

EDWARDS:  Well, I don‘t necessarily anticipate that that is going to be their defense here that they—that nothing occurred.  I think the best defense here for these two young men is to say I don‘t know what happened, but it wasn‘t my guy.  I don‘t know if there was a rape.  Maybe there wasn‘t, maybe there was, but my client wasn‘t there.  Nothing happened.  He didn‘t do anything.  If they take the burden of trying to disprove rape, they‘re doing—they‘re—I think they‘re going to lessen the burden of proof for the state.  I think...

(CROSSTALK)

ABRAMS:  I‘m not asking—and I get that.  I‘m not asking you as a matter—a legal matter.  I guess I was asking you as a matter of sort of a public perception.  I mean as an attorney who knows high-profile cases, et cetera, I guess I‘m asking you the fact that they were willing to take that risk so early on, does that get them—should that get them a chit (ph) so to speak in the public‘s perception? 

EDWARDS:  Well the question is whether it gets them that chit (ph) in the jury‘s perception and...

ABRAMS:  Yes, I know that.  But...

(CROSSTALK)

ABRAMS:  Well I understand that.  I mean...

EDWARDS:  Well, I don‘t know...

ABRAMS:  Yes.  OK.  Fair enough.

EDWARDS:  ... if the public perception is really going to help them. 

ABRAMS:  See, I disagree. 

EARLY:  Dan...

ABRAMS:  Let me ask Norm...

EARLY:  Dan...

ABRAMS:  ... real quick.  Norm, hang on.  I want to ask you this question.

(CROSSTALK)

ABRAMS:  You were a Denver D.A., big city.  You had a lot of politics to deal with.  It matters, doesn‘t it, if the public starts coming up and saying, we are having enormous questions about what you‘re doing, doesn‘t that force you to at least go back and double-check everything you‘ve done? 

EARLY:  Well you know the jury that you will be playing to comes from that public.  And the fact that these defense attorneys very early on said my guy had nothing to do with it, this is not going to be a consent defense, I mean all they needed was one hair of their client to show up...

ABRAMS:  Right.

EARLY:  ... a piece of skin of their client to show up, anything, and that would have totally blown them out of the water.  They would have made a statement so bold and that statement could have been contradicted...

ABRAMS:  That‘s right.

EARLY:  ... by the slightest bit of DNA...

ABRAMS:  That‘s right.

EARLY:  And here they are saying hey, I‘m so sure that nothing happened with my guy being involved...

ABRAMS:  Yes.

EARLY:  ... that I‘m going to tell you upfront that this did not happen...

ABRAMS:  Yes...

EARLY:  ... this way.

ABRAMS:  Look, I was critical—a little bit critical of him at the time because I thought he was taking a risk.  And I think that he also deserves, since I was critical of the risk, the fact that they remain consistent with that position I think they deserve credit as a result.

All right.  Everyone is going to stick around because coming up, a key alibi witness for one of the accused players comes forward.  He says that Reade Seligmann was in his cab at the time that the defense lawyers say any alleged rape must have happened, if it happened.

And the search for Natalee Holloway suddenly gaining new momentum in Aruba, a new arrest and possibly more on the way.  Could new transcripts of suspects Joran van der Sloot and the Kalpoe brothers show that they did not kill Natalee?

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

RITA COSBY, “LIVE & DIRECT”:  You‘re sure that it was Reade Seligmann that night? 

(CROSSTALK)

COSBY:  You‘re sure you with him for half an hour?  You‘re sure he took your cab?

MOEZ MOSTAFA, SAYS DROVE LACROSSE PLAYER HOME FROM PARTY:  I‘m sure, yes, he called me, I‘m sure I picked him up.  I took him to the bank and I took him to the Cook Out where he got some food.

COSBY:  No doubt in your mind it was definitely this man that night.

MOSTAFA:  Nothing.  No doubt at all, 100 percent.

COSBY:  And you will testify under oath to that?

MOSTAFA:  Sure. 

(END VIDEO CLIP)

ABRAMS:  That‘s the cab driver who says he drove Reade Seligmann who‘s been arrested in connection with the Duke lacrosse rape case.  He says he drove Reade Seligmann from the house where a woman says she was raped back to his dorm on March 13.  Now Seligmann has been charged with Collin Finnerty with rape.  The defense attorneys say this cab ride is yet another layer to his alibi, showing he wasn‘t even at the party when the exotic dancer says that she was raped.  So the question becomes you know how big a deal is this?  Susan, how big a deal?

FILAN:  I still don‘t think it‘s that big a deal for the reason that you pointed out earlier.  We don‘t know the timeline.  OK, maybe he was in the cab, maybe he was at the bank, but that doesn‘t mean that the alleged rape didn‘t take place earlier and he wasn‘t there, he didn‘t participate in it.

ABRAMS:  This goes back to the investigation, though.  I mean, Yale, the fact is they had not talked to this guy before the father, Reade‘s father ended up going and talking to him.  The authorities according to the taxi driver hadn‘t even spoken with him.  That‘s kind of troubling. 

GALANTER:  Listen, Dan, I‘ll go out on a limb.  I‘m very critical of what Mr. Nifong has done in this case.  He‘s doing everything backwards.  I mean he does the arrests first, searches the room second.  He‘s going to talk to the witnesses after it breaks on your show or on Rita‘s show.  I don‘t know why the timing of this indictment was planned the way it was other than to get these kids indicted under this grand jury before the primary election next week. 

That‘s the only reason I can think of and that‘s a bad reason.  A prosecutor should have all his ducks in a row, should know the case inside out, should not be surprised by anything, especially learning things on television before he levels these types of real serious charges. 

ABRAMS:  Norm, whether you believe the timeline that the defense has laid out or not, this is still a major issue in connection with this case and so let me ask you again in terms of the timing, the fact that we are now more than a month later, the fact that we are now days after the indictment and arrest of these two men, is it problematic that they had not spoken with this taxi driver up to this point or as I asked Susan before, are we unfairly piling on? 

EARLY:  I think it‘s difficult to say that they should not have talked to this cab driver before.  And unless this cab driver is the cousin of one of these kids or received a huge bribe or something, it‘s going to be difficult to undermine him.  And what I find more important than the timeline itself, Dan, is the demeanor of the kids once they got into the cab. 

I mean he noticed nothing.  Very different from what he says about a kid who got in his cab from the same party much later who was saying she‘s only a stripper and who acted like something bad had happened.  But these kids he said they acted absolutely normally, which is very difficult to do if you have just been part of a sexual assault.  You would think that there would be hearts racing, that there would be some sweating, there would be something that this cab driver would have known other than the fact that they were normal.

ABRAMS:  All right, let me play the sound that Norm is now talking about, which is the cab driver talking about—this is not when he picked up Reade Seligmann.  This is him going back to the house picking up additional players, students, people who were at that party and here‘s what he said. 

(BEGIN VIDEO CLIP)

MOSTAFA:  I remember one guy, he said in a loud voice, she just a stripper.

COSBY:  Do you think he was complaining about the stripper?  Or something bad happened with the stripper? 

MOSTAFA:  I have no idea.  I don‘t have any information about what was going on in the house. 

COSBY:  Now that you look back?

MOSTAFA:  Yes, when I look back, he looked like he murdered the stripper or the stripper, she going to call the police and she just a stripper.

COSBY:  Did it seem to you that someone had been raped in the house and they were talking about a rape?

MOSTAFA:  No.  I couldn‘t—my mind couldn‘t go that far away but it

looked to me like somebody got hurt but what kind of harm or what kind of -

I have no idea. 

(END VIDEO CLIP)

ABRAMS:  Mark Edwards, I hear people talking about this as if this is, you know, he said they were just a stripper, et cetera.  Problem one is that it wasn‘t the defendants in this case or it‘s certainly not Reade Seligmann.  And number two, it‘s consistent with the defense‘s story.  And the defense has said yes, words were exchanged with these women.  We were angry about the fact that they charged us $800 or whatever it was and basically did a four-minute show and there was conflict.  That seems to be consistent with the story that the defense attorneys have been saying. 

EDWARDS:  Yes.  It certainly could be. 

ABRAMS:  Do you disagree with that?

(CROSSTALK)

EDWARDS:  No, not necessarily.  But I would be somewhat bothered by that she‘s just a stripper anyway.  That implies to me something more serious than a dispute over money.  But the fact that Reade did not say that I think is very helpful and what the cab driver described about his demeanor as opposed to the people that he picked up later. 

ABRAMS:  Do you think this is incriminating stuff? 

FILAN:  Oh please, I don‘t think the cab driver does anything at all talking about their demeanor.  What, is he reading tealeaves and their mind about how does somebody act if they‘ve just been involved in a rape?  I dismiss that entirely.  I think he‘s important for alibi and for timeline, but the rest of it, I mean the cross examination of him would be so much fun because it would be thrown out in two seconds flat.  He knows nothing what went on in that house.  He has no ability to perceive these boys—he didn‘t know them before, he didn‘t know them after.

(CROSSTALK)

FILAN:  That‘s a big nothing...

ABRAMS:  I don‘t know.  Yale, I mean...

(CROSSTALK)

ABRAMS:  Go ahead, Yale.

GALANTER:  Dan, this cab driver clearly establishes that a rape could not have occurred... 

FILAN:  Oh, come on Yale.

GALANTER:  ... that involves—hold on Susan—that involves Reade Seligmann after 12:14 a.m.  His computer records show the call coming in at 12:14.  He picks the kid up at 12:19.  The bank receipt shows that he was there at 12:24.  He takes the kid for take-out and at 12:50 he‘s back in his dorm room.  So Reade Seligmann was not involved in a rape after 12:14. 

ABRAMS:  If Susan...

GALANTER:  The only way the prosecutor makes this case is if he pushes the timeline up about 30 minutes and that‘s going to be...

ABRAMS:  Is...

GALANTER:  ... real difficult for him to do. 

ABRAMS:  Is it possible, Susan, that this prosecutor is going to come forward and say we‘re convinced there was a rape.  We‘re convinced that the people at that house were involved in it, but maybe we got the wrong guy? 

FILAN:  Well no, what‘s probably more likely is two things could happen.  (A), he‘s going to come out and say you know what, I‘m not going to be able to prove this case.  Doesn‘t mean it didn‘t happen, doesn‘t mean I‘m wrong, but I don‘t think I‘ve got proof beyond a reasonable doubt.  There could very well be an acquittal here.  I can‘t perceive.  The other thing that could happen is once people figure out who this alleged victim is, the media is going to find her, and the pressure that‘s going to be put on her is going to be enormous. 

ABRAMS:  Wait.  We know—I know who the alleged victim is...

FILAN:  OK.

ABRAMS:  I‘m not going to her house.  I‘ve never tried to contact her.

FILAN:  Someone is going to try and contact her...

ABRAMS:  No one from my program has tried to contact her...

FILAN:  Dan, I‘m not talking about...

ABRAMS:  No, but I‘m telling you...

FILAN:  Somebody is. 

ABRAMS:  But I‘m telling you that there is an unspoken rule.  I mean sure, there are going to be people out there...

FILAN:  That‘s right. 

ABRAMS:  ... who are going to try and do it.

FILAN:  That is exactly right and at some point, she may say to the D.A., you know what, this is too much for me.  I can‘t take it.  I‘m not going to be able to testify at trial.  Without her testimony, the D.A.  can‘t go forward, so this case could fold on that basis. 

ABRAMS:  Let me also say this.  You know, if—I know there are a lot of friends and supporters of the alleged victim out there.  If you do want her to speak to me off-the-record way, I welcome that.  I invite it and I would really welcome it because I would love to be able to talk to her to make sure we‘re getting the full story here.  So finally, want to play quickly one more piece of sound here.  This is from Collin Finnerty‘s attorney talking about whether there was an effort to turn over some of this evidence earlier to the D.A. 

(BEGIN VIDEO CLIP)

COTTER:  We did make an attempt, I‘ll just say this, to keep him—anybody from being indicted and that didn‘t work so that train has left the station now.

UNIDENTIFIED MALE:  What was the attempt?  Tell me about what that entailed.

COTTER:  You know more than one person went in and talked to Mr.  Nifong or tried to talk to Mr. Nifong.  I don‘t know what everybody‘s experience was.  I talked to him briefly.  And I think he had pretty much made his mind up and that that was going to be futile. 

(END VIDEO CLIP)

ABRAMS:  All right.  Well look, this is going to be an interesting case before trial for all the reasons we‘ve been talking about because I think there are going to be a lot of questions about whether this case is going to move forward in particular against Reade Seligmann.  We shall see.  Norm Early, Mark Edwards, Jonathan Arden, thanks a lot.  Yale Galanter and Susan Filan are sticking around. 

Coming up, more information on what the last three people known to have seen Natalee Holloway alive said to each other after she disappeared.  And does a new transcript actually help show that Joran van der Sloot or the Kalpoe brothers were not involved in Natalee‘s disappearance? 

And new details about what happened when a congresswoman hit a Capitol police officer.  Police say that she struck him with a closed fist. 

And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing offenders before they strike.  Our search today is in Ohio.

Authorities are looking for Thomas Lorde.  He‘s 29, five-six, 145, was convicted of gross sexual imposition, has not registered his address with the state.  If you‘ve got any information on his whereabouts, please contact the Summit County Sheriff‘s Office, 330-643-8635.  Be right back.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  It‘s kind of hard to believe, almost a year since Alabama teen Natalee Holloway disappeared on a trip to Aruba.  For some reason there suddenly seems to be an enormous amount of activity going on in the case.  Authorities arrested a possible suspect this weekend, have launched a new search of the water.  There are rumors more arrests could be imminent. 

NBC News has also obtained a transcript of what is purportedly a secretly recorded conversation between suspects Joran van der Sloot and Deepak and Satish Kalpoe.  They talk about the case but don‘t seem to know what happened to Natalee.  And it seems the police had tried to convince each that the others were speculatively selling them out. 

NBC‘s Michelle Kosinski is in Aruba with the latest.  Also joining me on the phone is Aruban attorney who once represented Natalee‘s family in Aruba, Vinda de Sousa, criminal defense attorney Yale Galanter, and former prosecutor and MSNBC analyst Susan Filan. 

All right.  So Michelle, what‘s the latest now in the search?

MICHELLE KOSINSKI, NBC NEWS CORRESPONDENT:  Hi Dan.  The search is supposedly continuing today although we have no evidence of that.  (INAUDIBLE) sources yesterday and prosecutors came out and said yesterday that it had been going on for four days.  And it seems nobody knew on the island, even some of our best sources here, the local newspaper didn‘t report it.  No one knew, so they were able to keep it very quiet.  And it hadn‘t been four consecutive days.  There is some speculation that it happened right after the arrest of that 19-year-old boy over the weekend, but it turns out it started the prior week. 

And interestingly, one of the attorneys involved in this case who does have information related to the investigation told us that he—it‘s his understanding that the tips that sparked the search actually came from some people who had knowledge of the ocean floor in this area, people like fisherman who have their own sonar who reported, according to him, to investigators certain areas where there might be some irregularities on the bottom of the ocean.  We don‘t know exactly how deep they are going here, but prosecutors did confirm that they are using sonar and they have the help of the Aruban Coast Guard and Dutch Coast Guard on the island right now.  So we haven‘t seen them, but supposedly that is going to continue—

Dan. 

ABRAMS:  And Michelle, any other fall-out from these transcripts that you were able to exclusively obtain, these conversations between Joran van der Sloot and the Kalpoe brothers? 

KOSINSKI:  Oh people are definitely talking about it and it depends on what attorney involved in this case you talk to.  I mean you talk to the attorney for Joran van der Sloot and he‘ll really play up the items that in his view show that these boys did not actually know what happened to Natalee Holloway.  And if you talk to the attorney for Beth Holloway Twitty, Natalee‘s  mother, he says well in his opinion it seems like they know something and they are covering it up and they may have even known that they were being recorded because they had knowledge of their own phones being wiretapped. 

So just how much they knew and up to what point is the real question here.  Because they themselves admitted that they had Natalee in the car.  Joran said he left her alone on the beach.  Well at what point does their knowledge cut off or not cut off.  That‘s what people are wondering and at this point all we can do is wonder.

ABRAMS:  Yes.  All right.  I have read through these transcripts and I got to tell you don‘t understand—if they knew they were being taped they wouldn‘t have said some of the things that they said and what they do say on here doesn‘t seem to me to be particularly incriminating.  Susan Filan, you and I have gone through these in depth.  Let me read from one of them.

Deepak says if they‘re going to give you 15 years if they find the girl.  Joran says for what?  For what?  The scholarship of yours (INAUDIBLE) you can forget about it.  Yes, because of you?  Because of you mongol.  You well know that you did that otherwise you wouldn‘t lie. 

Now, on the one hand that certainly seems to suggest that Joran is saying for what and you could make an argument OK, well yet, it seems to implicate Deepak, but you know, I don‘t—you did bad otherwise you wouldn‘t lie doesn‘t say you did bad.  You know what you did. 

FILAN:  Exactly.

ABRAMS:  I mean it just—it doesn‘t seem to be particularly incriminating. 

FILAN:  No.  I‘m not going to go so far as to say this exculpates them.  This mean they didn‘t do it, but I don‘t think there is evidence in what we‘re reading in this particular secretly recorded conversation that somebody knows that somebody did something and they are not saying it.  What it sounds more like is each one is trying to figure out what the other one said to the authorities and basically saying why did you lie about me? 

Why did you lie about me?  I don‘t believe for a minute that they knew they were being recorded.  Because I got to tell you my theory on that is if they knew they were being recorded they sure wouldn‘t make...

ABRAMS:  Right.

FILAN:  ... stupid remarks like these. 

ABRAMS:  Right.  Right.  Right.  And they wouldn‘t refer to her as the girl.  They would refer to her as Natalee and they would say nice things, et cetera.

FILAN:  Or they would say we didn‘t do it.

ABRAMS:  Right.

FILAN:  We didn‘t do it. 

ABRAMS:  Right.  Right.

FILAN:  Get us out.

ABRAMS:  Right.  I mean in another part of the transcript Deepak saying I‘m going home.  Joran:  Just wait until I start saying things about you then I want to see whether you will go home.  I guarantee you.  Don‘t you think that the police is interested to know that Satish hit a girl with a car? 

(INAUDIBLE) you‘re making me laugh boy.  Just laugh.  I mean it just -

it seems to go—Vinda, you‘ve seen these transcripts.  I mean it seems to go around and around with each one of them sort of trying to figure out what the others have said but none of them seeming to have any knowledge at least presumably about what did happen. 

VINDA DE SOUSA, ARUBAN ATTORNEY (via phone):  Absolutely.  I agree absolutely with what you are saying.  They didn‘t have any knowledge it appears from the transcripts of what one was saying about the other.  And they were trying to figure out what was being said by each and one of the others in order to protect their own safety or their own liberties...

ABRAMS:  Yes.

DE SOUSA:  ... so to speak. 

ABRAMS:  Yes.

DE SOUSA:  So, they definitely didn‘t know.  Because it‘s police tactics.  We all know...

(CROSSTALK)

DE SOUSA:  ... investigative tactics.  We all know that police try to put pressure...

ABRAMS:  Right.

DE SOUSA:  ... investigators try to put pressure and saying one squealed, this one squealed and said you did this.

ABRAMS:  Right. 

(CROSSTALK)

ABRAMS:  And I‘m not willing...

(CROSSTALK)

ABRAMS:  ... to go as far as to say...

(CROSSTALK)

ABRAMS:  I‘m not willing to go as far as to say that what‘s in these definitely proves that they didn‘t do it, but I am willing to say that when you read the totality of them, you know I think that if you read them objectively, as I do, with no stake in the outcome here that you know when you look at everything, it does seem to support their account. 

Joran:  I said nothing about burying.  One thing I can think of is that you know people, that‘s the people from automotive enterprises.  Yes, yes, yes, after I got that flat tire (INAUDIBLE).  Yes, yes, I picked you up and after that I went to the beach again for her.

Joran:  Who said that?

Satish:  You said that.

Joran:  I never said that.  I never said that you‘ve been back friend.  That‘s your problem.  If they all find that girl, then they will see that and then there‘s an expletive.

It just, Yale, seems to kind of go around and around.

GALANTER:  It does, Dan.  I mean what this shows is number one that the Aruban authorities really were trying to get to the bottom of it by turning the three boys against one another and it also shows that the three boys were not on the same page and that‘s clear as day.  They may have lied about some things, but it clearly does not inculpate them in any way, shape, or form.  And I agree with you.  It really is consistent with what Joran has told the media.

ABRAMS:  All right.  We shall see.  And let‘s—again, there‘s a lot

I‘ve been stunned at how much activity there has been down in Aruba in connection with this investigation 11 months later, so we‘re going to stay on top of that.  Michelle Kosinski, thanks.  Vinda de Sousa, Yale Galanter, thank you.

GALANTER:  Thanks, Dan.

ABRAMS:  Susan is going to stick around for our next segment. 

Coming up, the police report released.  It says that Congresswoman Cynthia McKinney hit a police officer in the Capitol with a closed fist.  Grand jury has been hearing evidence.  Question:  Does that change anything? 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a police report sheds new light on what happened when Congresswoman Cynthia McKinney hit a Capitol police officer.  The cops say it was assault and apparently it was with a clenched fist.  Talk about that.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

REP. CYNTHIA MCKINNEY (D), GEORGIA:  There should not have been any physical contact in this incident.  I am sorry that this misunderstanding happened at all and I regret its escalation and I apologize.

(END VIDEO CLIP)

ABRAMS:  Took over a week though for Georgia Congresswoman Cynthia McKinney to say she‘s sorry for—quote—“physical contact” with a Capitol Hill police officer last month.  Question, it really may have been too little too late.  A just released police report calls that physical contact an assault on a police officer.  McKinney, who wasn‘t wearing her congressional identity pin, tried to go around a metal detector.  Capitol Hill Police Officer Paul McKenna tried to stop her.  Here‘s how it‘s described in the just released report.

Quote—“Officer McKenna while performing his official duties as United States Capitol officer and in full uniform stated that he was physically assaulted by Representative McKinney, who struck McKenna in his chest with a closed fist.”    

The grand jury got this case two weeks ago.  The question of course should and will McKinney be prosecuted?  NBC congressional correspondent Chip Reid joins us from Washington with the latest.  Hey, Chip.

CHIP REID, NBC CONGRESSIONAL CORRESPONDENT:  Hi, Dan.  This is a story that everybody is looking at differently right now.  Because early in this week, last Monday this story was reported in “Roll Call” and the fact that the officer claimed he was hit in the chest with a closed fist was buried down in the bottom of the article.  And I think that‘s because the person who wrote the article and I think most people in Capitol Hill think it‘s consistent with what we had already been hearing, that she hit him in the chest with her cell phone and she had her fist closed around her cell phone when she did that. 

Now it‘s being reported in “The Atlanta Journal-Constitution” and in the wires leading with that idea that it was a closed fist, giving people a different idea that maybe she really clocked the guy.  But to tell you the truth, I really this is consistent with what we‘ve been hearing all along.  She hit him in the chest.  We don‘t know how hard she hit him, but hit him in the chest with her cell phone and I think this simply makes clear that her fist was closed around that cell phone when she did it.  By the way, her office says—they still call this a minor incident.  They say she apologized and they‘re hoping it will—quote—“go away soon” so that she can get back to dealing with the issues her constituents care about—

Dan. 

ABRAMS:  All right.  Chip Reid, thanks a lot.  The problem is that the apology only came later and before that they were going after the Capitol Hill police, it was all their fault, all their fault.

Lisa Wayne is a criminal defense attorney, joins us, as well as MSNBC analyst Susan Filan.  Lisa, did the attorneys and Cynthia McKinney do her great damage by continuing the assault on the police officer?  I don‘t mean the physical assault.  I mean the press assault on the police officer in that week before she finally apologized? 

LISA WAYNE, CRIMINAL DEFENSE ATTORNEY:  Well it‘s too early to really know that.  I mean I think what happened is she reacted immediately because she knew that she was going to be under the scrutiny of the public and she ended—she made the statement that she made which it sounds like was the truth.  I mean this closed fist thing frankly is meaningless because that‘s simply a reaction.  Is she pushing this guy away with a closed fist and she has her hand around the cell phone?  I mean that doesn‘t really mean anything in terms of what she actually did.  Her statements were statements.  She has to live by those and I don‘t think she can regret those at this point.

ABRAMS:  Well, I‘m sure she can regret them, right?  I mean she can say...

(CROSSTALK)

ABRAMS:  ... I messed up. 

(CROSSTALK)

ABRAMS:  I‘m a politician.  I‘m a politician and politicians say stupid things. 

WAYNE:  Well, we all say stupid things...

ABRAMS:  Yes, I say them all the time. 

WAYNE:  ... is stand by those statements and I think she needs to stand by those statements very strongly.  That doesn‘t mean you can‘t apologize.

ABRAMS:  Yes, well look, I think look—I got to tell you, Susan, I think it‘s those statements and the statements of her lawyers that might end up getting her indicted here. 

FILAN:  Well, I think it‘s possible that this case could have been handled with a simple apology right then and there at the scene.  Oh, you didn‘t recognize me.  I‘m so sorry, officer...

(CROSSTALK)

ABRAMS:  Let‘s even assume that she overreacts.  All right, let‘s even assume she did what she did.  All right.  But the next day...

FILAN:  Right.

ABRAMS:  ... goes out and says I made a big mistake yesterday. 

FILAN:  Right.  Right.  Right.

ABRAMS:  I was angry.  I was frustrated they didn‘t recognize me and as a result I hit a police officer in a way that I shouldn‘t have done and I‘m sorry.  I don‘t think that they would have gone forward.

FILAN:  Well I have to agree.  Because I think she did commit a criminal act.  It‘s an unlawful, unwarranted physical...

ABRAMS:  But the question is...

FILAN:  Exactly.

ABRAMS:  ... what do the prosecutors do...

FILAN:  Right.  Exactly.  So I think there was a crime committed, but not every single crime has to be prosecuted.  You need a complaining victim.  And it‘s quite possible had she properly apologized and said you never strike a cop.  I‘m sorry, Officer.  The officer could have easily said I accept your apology, Congresswoman, and it could have been over.  But to continue to say that he didn‘t have a right to stop her and she had a right and self-defense to hit him I think has pushed buttons.  I think it was—the apology was a lot too late and way too little. 

ABRAMS:  Here‘s more from the police report—the newly released police report.  Officer McKenna didn‘t see the woman wear the badge that she should have had on and called out to her, didn‘t recognize her facially, called out to her.  She breezed past.  Called out again and reached out and grabbed her hand, her arm.  When she came around she hit the officer in the chest.  Again, this is not helpful.  I mean the police report is not helpful to her, is it, Lisa Wayne?

WAYNE:  Well it‘s his side.  It‘s an accusation.  It‘s his statement about what happened.  So, of course it‘s not helpful to her because it‘s an accusation against her.  But again, that‘s what the grand jury is going to have to decide when they listen to this and they‘re going to have to assess credibility. 

ABRAMS:  Yes or no, Lisa, do you think they‘re going to indict?

WAYNE:  And frankly there is never an indictment that‘s been made—an indictment doesn‘t come against a client because of what the lawyer says.

(CROSSTALK)

WAYNE:  ... how she reacts...

ABRAMS:  That‘s not true.  In many cases they won‘t pursue an indictment because they say you know what, no need.  We‘re just going to drop it.

WAYNE:  I‘m talking about the statements the lawyer made to the media.

ABRAMS:  That‘s what I‘m saying...

(CROSSTALK)

ABRAMS:  The statements the lawyers made to the media I think incited the prosecutors and the police to go to this grand jury.  And if they hadn‘t made them, I think if she had apologized the day after, I don‘t think this case would be in front of a grand jury. 

WAYNE:  Well that would be called vindictive.  If you‘re going to indict defendants based upon...

ABRAMS:  No, it‘s called being forgiving.  It‘s called... 

WAYNE:  That‘s not evidence, Dan.  That‘s not evidence...

ABRAMS:  Look, prosecutors make decisions...

WAYNE:  ... brought on evidence.

ABRAMS:  ... every day based on their gut.  Every single day in this country they say does this—because people commit crimes all the time in this country that don‘t get prosecuted. 

FILAN:  Exactly.

ABRAMS:  Anyway...

WAYNE:  I don‘t disagree with that, but hopefully that‘s not what‘s going on in our Capitol. 

ABRAMS:  Well, yes, well I would hope that if she had apologized the day after that they would have been forgiving but didn‘t happen, so Lisa Wayne and Susan Filan, thanks a lot.

FILAN:  Thank you, Dan.

ABRAMS:  Coming up, the e-mails keep pouring in on the Duke lacrosse case.  Many of you saying that because I went to Duke I can‘t fairly cover the case.  Others saying I‘m hurting Duke.  I respond next. 

(COMMERCIAL BREAK)

ABRAMS:  Now it‘s time for “Your Rebuttal”.  Yesterday in another ABRAMS REPORT exclusive, photos from the party where an exotic dancer says she was raped by three Duke lacrosse players.  I said in the pictures where we obscured her face, she appears to be smiling, what I described as a demure smile.

Michael Collins in Shelbyville, Kentucky, “Your commentary was that she was smiling.  I have to ask considering that seven minutes later she was a lump on the steps, could her glee have been drug-induced euphoria?”  Could be, Michael. 

From Mobile, Alabama, Max Mazzarella, “I think the assumption the alleged rape dancer is smiling in one of the photos is ludicrous.  There‘s a fine line between a crying mouth and a smiling mouth.”  Maybe, Max.  It looked like a smile to me.

Jennifer Gill, “One thing that is really starting to bother me listening to some of these protesters repeatedly declaring this woman is also a mother, student, just trying to support her family, blah, blah, blah, and why are we losing sight of the person she is, reducing her to a stripper?”  Because apparently that is her job, which I assume she voluntarily chose and that was the sole purpose of her presence in the house. 

And still lots of e-mails about my coverage of the investigation.  The fact that I‘m a Duke alum.  Including Yvonne B. in Michigan, “You claim that you have no bias due to your being an alumni at Duke, yet your coverage of this case has been unlike that of any other case.  Your coverage so far has been with your hand in the back pocket of the Duke defense team.”

From Chapel Hill, Shadi Wehbe writes, “Did I hear you say people are claiming that your reporting is biased because of this?  How can the immense attention Dan is bringing to the case be any good for Duke in light of these allegations?”

Elle in Burlingame, California, “I felt you were so against these poor guys that have been wrongly accused and I was thinking to myself how can he be so biased against these Duke kids if he went to Duke?”

A 1997 grad, Mike, in New York City, “For those people who think you‘re not being fair because you‘re a Duke alum, they should know that Duke supporters more than anyone want urgently to get to the bottom of whether these kids committed this terrible crime because Duke would never, could never, ever want to harbor a bunch of racist rapists.” 

Some of you noticed that last night I seemed a little bit just say off.  B. Lawrence in Westminster, Colorado, “Is Dan OK?  Seems slightly dopey today.  Is he taking antihistamines?  He‘s not his usual exuberant self.” 

Jacqueline Campos, “What is going on with your energy level?  At least on today‘s show you seemed to have run out of steam midway through the show.”

A lot of you wrote in about this.  It‘s true, I‘ve been a little edge

little on edge, so I took some barbiturates before the show.  I‘m sorry you noticed.  I‘m just kidding.  Seriously what happened was I had been up all night the previous night getting all the exclusive pictures and details for the special report that I did on Wednesday morning in connection with this investigation. 

I was exhausted, but was trying to make sure we remain the source for information on the story.  I always have the weekend for sleep, but you know, tireless, right?  I‘m such a self-promoter.  I‘m sorry.  But it‘s true.  I had had no sleep, zero, not gone to bed. 

All right.  E-mails, abramsreport@msnbc.com.  We go through them at the end of the show.  Be right back.

(COMMERCIAL BREAK)

ABRAMS:  That does it for us tonight.  Tomorrow, more on the Duke rape investigation.  Coming up next, “HARDBALL” with Chris Matthews.  See you tomorrow. 

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

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