updated 4/28/2006 12:10:55 PM ET 2006-04-28T16:10:55

Guests: Billy Sorukas, Greg Fulton, Jerry Richards, Susan Filan, Georgia Goslee, Yale Galanter, David Harris, Nola Tedesco Foulston

DAN ABRAMS, HOST:  A new “TIME” magazine report says the exclusive pictures we showed you of the Duke lacrosse party could backfire on the defense.  Well, we‘ll take a closer look at the photos that only we have from that party. 

The program about justice starts now. 

Hi, everyone.  We‘ll have the latest on the Duke rape investigation in just a minute.  But first up on the docket...

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  There‘s an old phrase that says you can run but you can‘t hide.  And to a certain extent many fugitives out there think they can hide.

(END VIDEO CLIP)

ABRAMS:  More than 9,000 fugitives learned the hard way that you can run but you can‘t hide from the law.  Operation FALCON Two headed up by the U.S. Marshal Service was a seven-day operation in 27 states.  Seven hundred and ninety-three law enforcement agencies, 2,100 officers, yielded more than 9,000 arrests including more than 1,100 violent sexual offenders wanted for anything from committing a violent sex crime to failing to register as a sex offender.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Just before we hit the streets I told our law enforcement teams that whether you catch one sex offender or 100 they were going to make our children, their communities and our country safer.  In that end, we got more than 1,000 fugitives wanted on sexually related offenses.  Our deputies, along with our federal, state and local partners are better, smarter and frankly more dedicated to the cause of justice than the fugitive who is running and hiding. 

(END VIDEO CLIP)

ABRAMS:  Billy Sorukas is chief inspector and deputy marshal with the U.S. Marshals Service, joins us now.  Thanks a lot for coming on the program.  Appreciate it.  All right.  So how long a period of time did this last?  Because I‘ve got to assume once everyone is coming in and making the bust, people are going to start making phone calls. 

DEPUTY BILLY SORUKAS, CHIEF INSPECTOR, U.S. MARSHALS SERVICE:  Well that‘s true.  But it was a half the nation operation, so, unless you have a conspiracy type of case involved, I don‘t really think that has any effect on the cases that we‘re working in this particular operation. 

ABRAMS:  Fair enough.  How long a period of time did this take? 

SORUKAS:  This was a seven-day operation that began on the 17th of April and continued for a week.  This is the second Operation FALCON that was conducted.  And there will be a third one conducted very soon, although I am not at liberty to discuss details of when or where that will be conducted.  I can assure you that we will conduct another future operation that will target violent offenders and maybe a specific type of offender such as sexual offenders or individuals who are wanted on weapons offenses. 

ABRAMS:  What happens to sex offenders who haven‘t registered? 

SORUKAS:  Well it‘s—at this time it‘s up to each individual state to deal with those offenders.  Hopefully in the near future after a bill is passed, H.R. 7742, it will make failure to register within an individual state a federal offense.  That will allow the federal government to come in and pursue those individuals and it will also allow for an enhanced and federal crime to be committed with that noncompliance or failure to register.

ABRAMS:  So you knew where all these people were before this seven-day period began, correct? 

SORUKAS:  No, that‘s not necessarily true.  Our task forces and our investigators nationwide every day are pursuing these types of cases.  This one-week operation was a concentrated effort to pursue these individuals and, although there were more than 2,100 investigators on the street, it‘s only for this one particular week, although our investigators are out there every day, this was an enhanced version of our everyday operation and to target sexual offenders this particular time. 

ABRAMS:  All right.  Well I think this is one of those operations that everyone is going to be real glad happened.  Billy Sorukas thanks a lot.  Appreciate it.

SORUKAS:  Thank you. 

ABRAMS:  Now on to the Duke rape investigation.  It seemed like a blockbuster story.  “TIME” magazine calling into question the time-stamped photos of the March 13 party where the alleged gang rape occurred, photos the defense has said will help prove that the rape never happened.  Photos of course obtained exclusively by THE ABRAMS REPORT. 

The article states—quote—“Prints taken from digital cell phone cameras have time stamps, but can be altered, according to digital photography experts.  Only the cameras themselves have true embedded time data to correspond with photos taken.”

One particular photo in question, this one, of the alleged victim in a car, now presumably the car of the second dancer, Kim Roberts.  But according to “TIME” magazine, prosecutors will argue that the alleged victim is actually being helped out of the car.  That the picture shows her arriving, not leaving.  And that it is not the second dancer, Kim Roberts in the car. 

Now since we are the only ones with the photos let‘s take a closer look.  The arm of the young man appears to be helping her into the car, not out, but that‘s open to debate.  As for the part, the prosecutors will argue the second dancer, Kim Roberts, is not the one driving the car, if you look closely enough you can see, first, that the driver is a female because we can see her bra strap. 

There were reports that the accuser was dropped off by a man.  But (B), she has the same skin tone as Roberts.  Finally and most importantly, if they say she‘s arriving at the party, it would be pretty coincidental that she‘s clearly seen with no shoe on her right foot, the same right foot that‘s missing a shoe in the picture of her on the back porch time stamped 12:30:12 a.m., after the party started. 

And if you go back to a photo time stamped 12:03, that same white shoe was on the floor of the room where the two women were performing, presumably having coming off during a dance.  So putting aside for a minute the time stamps, just the fact that her shoe is on the ground in the room, the same foot that doesn‘t have a shoe on it in the car doesn‘t seem to back up the prosecution‘s theory, but joining me now, Greg Fulton, who was a co-writer for the “TIME” magazine article and retired chief of the special photographic unit for the FBI, Jerry Richards.  Thanks to both of you for coming on the program.  Appreciate it. 

All right.  Mr. Fulton had you been able to see the pictures as closely as we‘ve just laid them out before writing the article? 

GREG FULTON, “TIME” MAGAZINE:  Yes, sir, I have.  We do have our own set so to speak.  And I‘ve seen them published elsewhere as well, yes. 

ABRAMS:  They actually haven‘t been published anywhere else apart from here, but the right shoe, the fact that there‘s nothing on her right foot, that wasn‘t mentioned in the article, not relevant? 

FULTON:  Relevant indeed.  You make a very good argument to open the show.  And I think the big picture point here is that almost—in this case the tables have turned in that prosecutors are now looking for any way they can to cast doubt, poke holes, almost the opposite of what you see in a courtroom where it‘s really the other way around.  This could be one way and I believe will be one way they will effort that.  Whether it gets to the point in court where they go with it, we shall see. 

ABRAMS:  I just can‘t see them making this argument.  I mean it just -

for example, you write in the article, the accuser is shown in a black or dark-colored car, which matches the description of the car defense and prosecution sources say dropped her off at the party.  The problem is that Kim Roberts, the second dancer, also has a dark Honda. 

FULTON:  Indeed.  And here comes the testimony, now official, given to police on Tuesday by taxicab driver Moez Mostafa...

ABRAMS:  Yes and I want to talk about that...

(CROSSTALK)

ABRAMS:  Yes, because that‘s...

FULTON:  Yes.

ABRAMS:  ... that‘s a very relevant part of your article.  I want to get to that in a second.

(CROSSTALK)

ABRAMS:  Let me just stay on this issue of...

FULTON:  Sure. 

ABRAMS:  So, even though and again, if we can show the close-up again of the woman in the car who‘s driving the car.  I mean look I can‘t say for certain that that‘s Kim Roberts.  You know, I can‘t see enough from that picture to say that that‘s her, but it‘s certainly consistent...

FULTON:  Right.

ABRAMS:  ... with the way she looks.  And so they‘re going to say that I guess it wasn‘t a man who dropped her off, but it was a woman who dropped her off who looks kind of like Kim Roberts? 

FULTON:  There‘s also information that Ms. Roberts was wearing jeans and a sweater that night, so there‘s lots of bits and pieces you could put together or tear asunder on whichever side of the aisle you‘re on with this.  And again, I know you spoke to it and won‘t push you far ahead, but it‘s more of the time stamp casting of...

ABRAMS:  Yes.

FULTON:  ... doubt maybe than the content of the pictures themselves. 

ABRAMS:  Right.  But—and that‘s why I‘ve been trying to stay away from the time stamp because I think there are arguments as to how time stamps can be moved, et cetera.  I‘m going to talk to Jerry Richards about that. 

(CROSSTALK)

ABRAMS:  But strictly, even apart from the issue of time stamps, it just seems to me if the suggestion is that oh the person who dropped her off is driving a dark car and Kim Roberts also drove a dark car, the person who‘s in the car looks like Kim Roberts, but she only has one shoe.  She doesn‘t have a shoe on her right foot and we‘ve got the picture of that shoe sitting in the room, it seems a little bit hard to believe—I mean I just can‘t even fathom that the prosecutors are going to argue that this is her arriving and not being dropped off.

FULTON:  Keep in mind, there are, as we have been told, 18 other photographs.  If you can cast doubt on one or two or three of them, maybe this is the one they‘d stay away from.  You know, we shall see.  But it‘s clear enough to us that that is something they are seriously looking at, among other things.  It almost seems like they don‘t have a lot to go on at this point. 

ABRAMS:  Yes. 

(CROSSTALK)

ABRAMS:  There are 21 photos in total.  And I can...

(CROSSTALK)

ABRAMS:  ... actually tell you that I‘ll bet you there are other photos out there that actually we haven‘t even seen yet in connection with this case.  All right.  Let‘s talk about...

FULTON:  Can I also add...

ABRAMS:  Yes.

FULTON:  Yes.  May I just add briefly also...

ABRAMS:  Yes.

FULTON:  ... I think a very salient point also is it is also clear that defense attorneys involved are unhappy these photos have been leaked.  But they are unhappy for a host of reasons, one of them being prosecutors now have a chance to attack them.

ABRAMS:  Yes, I don‘t know that all of them and there‘s a divide amongst the defense team about the...

FULTON:  Not all.

ABRAMS:  ... leak of these photos and you know it‘s different strategies from different attorneys.  Now, we were talking about the time stamp, right, and in your article you talk about the fact that time stamps can be manipulated.  You say prints taken from digital cell phone cameras have time stamps but can be altered according to digital photography experts.  I assume that that doesn‘t just apply to cell phone cameras, right?  I mean we don‘t know for a fact it was taken from cell phone cameras, do we? 

(CROSSTALK)

ABRAMS:  You may know that. I didn‘t know that.

FULTON:  I may or may not know that, but digital—but you‘re right, digital cameras and/or cell phone cameras, anything that has got a hard drive and it‘s got a file, you can put it on—you can download it on your computer, there are stages in the so-called metadata of both when you print then and both in your hard drive you can go either way.  It depends on what time your clock is—inside your camera is set for, et cetera, et cetera.

ABRAMS:  Before we get to the taxi driver, let me bring in Jerry Richards, because former FBI guy, that‘s what he did for a living.  Jerry, explain this to me, all right.  I know that you can manipulate this stuff, but I‘ve also been told by experts that if you start moving photos around, taking them out of order, for example, any expert will be able to tell that that happened once they get the digital disk or chip that held the photos. 

JERRY RICHARDS, RET. CHIEF OF FBI‘S SPECIAL PHOTOGRAPHIC UNIT:  Well first of all, they would have to get the original disk or chip.  If they‘re getting copies of it, it may not be possible to tell.  And in some cases you would need some sophisticated software to make that determination.  If the alterations were done well it would be very difficult if not impossible to tell. 

ABRAMS:  All right.  So, if the—let‘s assume for a minute that you have the original, all right.  Let‘s assume you were able—can you authenticate that it‘s an original disk or chip? 

RICHARDS:  I‘d say in most cases yes. 

ABRAMS:  OK.

RICHARDS:  Not in all.

ABRAMS:  Let‘s assume—all right—let‘s assume for a minute then that you can authenticate that it‘s the original disk or chip.  Can you then, once you have that in your hand, if you were given that, would you be able to tell if someone had moved the order of the photos?

RICHARDS:  In all probability, yes.  Now when I said original chip, when we get—talk about it, you may not be able to tell that that is the chip that the image was originally put on if it is an exact copy.  But if they have been manipulated or changed around and the people who did that were not fairly sophisticated you should be able to tell, yes. 

ABRAMS:  And if they were sophisticated?

RICHARDS:  You may not be able to.  If the software that they are using has the ability to go into it right down to the machine code language, bits and bytes, so to speak and they knew exactly what they were doing, they possibly could manipulate it so you couldn‘t really make that determination. 

ABRAMS:  What about with regard to time codes?  I mean of course anyone can set their camera or their cell phone to say a particular time.  What about changing the time code, again, from that original disk?  Same rules apply as you just laid them out? 

RICHARDS:  Yes, basically.  If they have access to the metadata and have the software to manipulate the metadata, they can change that. 

ABRAMS:  So—just so we understand, you‘re saying possible, hard to do, likely you would be able to tell, likely an expert would be able to tell but not 100 percent certain. 

RICHARDS:  Yes, if the average person does it you‘re probably going to be able to tell.  If it is an expert who‘s doing it, somebody who really understands the process and understands the system that it was done on—remember many of these systems are different...

ABRAMS:  Right.

RICHARDS:  ... then they—then it might be able—they may be able to...

ABRAMS:  All right.

RICHARDS:  ... do it to the point where we can‘t tell. 

ABRAMS:  Let me do—I wanted Greg Fulton to stick around because I want to talk about the theory about how the cab driver, the headline is why the Duke cab driver could also help the prosecution.  We‘ll talk about that in a moment.  We‘ll talk more about the photos, as well when we come back. 

Plus, the mother of the accuser now saying her daughter is not backing down.  This coming after her father said she was having questions. 

And later, is lethal injection too cruel for some of the country‘s most violent criminals?  The U.S. Supreme Court has just heard that debate and now we debate it too.

Your e-mails abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  I respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  We‘re talking more about two crucial pieces of evidence in the Duke rape investigation.  Those photos obtained exclusively by THE ABRAMS REPORT.  In addition to that taxi cab driver who seems to help the alibi of one of the defendants, Reade Seligmann, but a new article in “TIME” suggests that the cab driver could actually help the prosecution, as well. 

Joining me now Greg Fulton who wrote the “TIME” magazine article, retired chief of the special photographic unit for the FBI, Jerry Richards, MSNBC legal analyst, former prosecutor Susan Filan, former federal prosecutor Georgia Goslee, and criminal defense attorney Yale Galanter.  Thanks a lot to all of you.

All right.  First of all, Greg, let me just get out the part about how the cab driver, you say may be able to help the prosecution in this case.  And I‘m going to read again from your article.  Taxi driver Moez Mostafa stated he saw exotic dancer Kim Roberts exchange angry words with lacrosse players, enter—quote—“an old, white car” and speed away from the scene.  Again, presumably how does that help—how would that help the prosecution?

FULTON:  It would help, again, in the general category of casting doubt.  It gets to the point where the prosecution feels like they really must do that to the jury.  The white car obviously differs from the black or navy blue car.  And we know that in the timeline following it everybody, so to speak, leaving the party that the two dancers were together during a 911-call, together at the Kroger, together during a police dispatch report.  Those can be time-lined out.  Which car were they in?  There‘s evidence strongly one way.  There‘s doubt cast another way.

ABRAMS:  Well we also know that based on the—when the police arrived at the Kroger as to what type of car, right?  I mean so you‘re basically just saying this can put the taxi driver‘s testimony in question because there he is misidentifying the car as white as opposed to black, at the least.

FULTON:  Indeed.  You can indeed swing it that way and put his testimony in doubt, absolutely.  And he, I think to the point where again he officially put that on his statement to police sort of changed the bar from when he had been saying it and it had been reported in other media.  This is not the first time the white car...

ABRAMS:  Right.

FULTON:  ... has come about.  You put the pieces together and as it gets more official, it gets more official.

ABRAMS:  All right.  Here—let me put the pictures—again this is Kim Roberts, the second dancer, and here‘s the picture from the car, the back, you see her back with her face turned with her profile.  Susan Filan, the prosecutors better have better than that‘s not Kim Roberts. 

SUSAN FILAN, MSNBC LEGAL ANALYST:  Oh yes.  They better have better than that‘s not Kim Roberts and they better have better than that‘s her arriving at the party without her shoe. 

ABRAMS:  Yes.

FILAN:  And also, Dan, in that photograph you can see the scratches and the blood on her legs and the defense is saying that she fell on the back porch and she was injured as she was getting back into the car.  That helps the defense, but this whole thing about the alibi.  Alibis are really difficult defenses to begin with because they are generally based on people‘s recollection.  Timelines are mushy.  Unless you have something completely hard, unrebuttable, like a plane ticket to San Francisco and...

ABRAMS:  Or like a bank transaction from 12:24?

FILAN:  I don‘t know about that.  I don‘t know about that.

ABRAMS:  What do you mean?

FILAN:  Well, I‘ll tell you what I mean.  We don‘t know what time the alleged rape took place.  We don‘t know...

ABRAMS:  No, but we do know from the neighbor—I mean put—I mean you‘re right.  The neighbor could be wrong.  The neighbor is very specific about seeing the women arrive around midnight and that you know by close to 1:00, et cetera, people are leaving, et cetera.  But you know if they‘re arriving around midnight that—the time stamp photos, again, right or wrong, that‘s what they claim that they show and the neighbor says that they arrive around midnight.  If Reade Seligmann is at an ATM a ways away from the house at 12:24 and they‘ve been dancing for five minutes, I guess it‘s possible. 

FILAN:  It is possible...

ABRAMS:  But it does make it unlikely, doesn‘t it? 

FILAN:  No, it doesn‘t necessarily...

ABRAMS:  Really?

FILAN:  ... make it unlikely because remember a sexual assault isn‘t what we typically think of as...

ABRAMS:  She said up to 30 minutes. 

FILAN:  Well she did, but again, a victim‘s recollection of how long something horrible takes place is always askew.  Time is difficult to assess in these kinds of cases.  And something bad...

ABRAMS:  That‘s true.

FILAN:  ... happening to you may feel like an hour when it was really only two minutes.  So that‘s not dispoved (ph) of.  That‘s not the be all and end all.  There are other problems...

(CROSSTALK)

FILAN:  There are better things to pick at than that.

ABRAMS:  Georgia Goslee, if this “TIME” magazine article represents the prosecution‘s theory I think you would agree that they‘re in trouble, right? 

GEORGIA GOSLEE, FORMER FEDERAL PROSECUTOR:  Not necessarily.  See I‘m not so wedded—as other commentators are saying I‘m not so wedded on this hard and fast alibi.  I‘ve had alibis.  I‘ve been a criminal defense.  I‘ve been a federal prosecutor and an alibi sounds like the person may or may not have been at the scene but one never knows because until it really is subjected to judicial scrutiny...

ABRAMS:  Right.

GOSLEE:  ... we really don‘t know.

ABRAMS:  But let‘s focus on—I mean this motion that somehow she‘s arriving at the party in this picture with one—with no shoe on her right foot and they‘re saying it‘s not actually the second dancer who‘s with her in that car, even though it sure looks like her and we had heard that a man had dropped off the accuser.  I mean this would be a terrible case.  And the prosecutors—I just can‘t believe that the prosecutors are going to rely on this...

GOSLEE:  Well they may not rely upon it, but as I said, the evidence in this case is developing so rapidly and there are obviously different pulling—different commentators pulling and they have developed great rooting interest for the lacrosse players.  I think one of the reasons, Dan, I have become so outraged about this is because the victim in this case, I mean she has been brutally assaulted.  And to hold her testimony even at this time to hard and fast specific time periods I think is a little unfair. 

ABRAMS:  Really?  I mean...

GOSLEE:  Yes, I think it‘s a little unfair because I‘m sure you—I hope you haven‘t had that type of traumatic experience, I certainly have not, but if you could just stretch your imagination for a moment and to think that one of the most heinous crimes on the face of the earth have just been perpetrated against you and then I listen to the pundits talk about specifics, this time, that time. 

ABRAMS:  Yes.

GOSLEE:  For God‘s sakes this poor woman may still be wallowing under a cloud. 

ABRAMS:  So you would rather that we just say you know what, she‘s making this allegation.  Let‘s not get into specifics here.  Let‘s not talk about...

GOSLEE:  No, that‘s not what I‘m saying.

ABRAMS:  Let‘s not talk about timeframe.  Let‘s just say...

GOSLEE:  That is not...

ABRAMS:  ... you know what...

GOSLEE:  No, Dan, that‘s not what I‘m saying at all. 

ABRAMS:  We should probably just stay away from it.

GOSLEE:  No, I‘m not saying don‘t stay away from it.  What I‘m saying is this is not a court of law.  We‘re...

ABRAMS:  No, it‘s not.  We don‘t have the power of someone‘s freedom in our hands either, so we can talk about this.

GOSLEE:  Of course we can and I think it‘s fair to talk about it but I do not think it‘s so fair—I do not think it‘s fair to the victim, Dan, honestly, to hold her to...

ABRAMS:  We‘re not holding her to anything.

(CROSSTALK)

ABRAMS:  She‘s not making these allegations.

(CROSSTALK)

ABRAMS:  “TIME” magazine is not reporting that she‘s saying this.  I‘m not—I‘m talking about the prosecution‘s theory.  And let me tell you something on this program I have never criticized her.  I have been critical of the prosecutors.  And I think a lot of people have been about what was said, when was it said?  What investigation they did before the indictments came down, et cetera.  Those are legitimate questions to ask...

GOSLEE:  There‘s no doubt that they are legitimate questions to ask.  I guess my only point is not so much you, Dan, specifically, but I‘m talking about what I‘ve heard and the commentators I‘ve heard talking about the poor victim here that they are holding her or they‘re attempting to say everything that she‘s saying.  And I would assume that she‘s struggling and doing the very best she can to recollect the events, even to the identifications of her—of the people who raped her.

ABRAMS:  But Yale, she says she‘s 100 percent sure. 

GOSLEE:  And perhaps she is.

YALE GALANTER, CRIMINAL DEFENSE ATTORNEY:  You know you—you know the problem with what has just been said, Dan, is it‘s not that we‘re attacking the victim or the complaining witness.  We‘re really attacking the prosecutor for not doing his homework before he indicted these innocent boys.  You know it was the father who gave an interview to Rita Cosby who said—who raised the mental health issue.  It was the father who said well the I.D. is 100 percent certain.  She—you know she‘s kind of sure.  She‘s almost sure.  We don‘t know.  We don‘t send people to prison on I‘m almost sure...

ABRAMS:  But forget about spending them to prison...

(CROSSTALK)

UNIDENTIFIED FEMALE:  Yes, forget about...

ABRAMS:  Yale, but forget about sending them to prison because right now Georgia is talking more about the perceptions right now.  I‘m saying we don‘t have the power to put someone in prison on this program.  And Georgia is talking more about sort of how this case is being covered. 

GALANTER:  But the reason it‘s being covered the way it‘s covered, Dan, is because phone records do not lie.  Bank records do not lie.

GOSLEE:  I‘m not so sure about that. 

GALANTER:  ... records of the cab company do not lie.  We know for certain that every two or three minutes Reade Seligmann was on the phone.  We know for certain that he placed a call to the cab company...

UNIDENTIFIED FEMALE:  We don‘t know that...

(CROSSTALK)

UNIDENTIFIED FEMALE:  I don‘t know that...

GALANTER:  Yes we do...

(CROSSTALK)

UNIDENTIFIED FEMALE:  We don‘t know that he was on the phone. 

(CROSSTALK)

UNIDENTIFIED FEMALE:  We don‘t know that for certain.

GALANTER:  We know that the cab company picked him up at 12:19 and we know at 12:14 we‘ve seen the receipt, he was at the bank. 

ABRAMS:  12:24. 

(CROSSTALK)

GALANTER:  Right.  I‘m sorry.  It is—unless it occurred within a two or three-minute window while he was on the phone, she picked the wrong guy.  And that‘s not defense spin.  Those are records that we have seen...

FILAN:  Yale...

GALANTER:  ... and those records do not lie. 

FILAN:  Yale, you can show that his phone was used.  You can‘t show that he was the one using his phone.  You can‘t show that he was the one on that phone. 

GOSLEE:  Absolutely.

FILAN:  ... his phone was used doesn‘t mean that he was using it.  And the phone itself cannot be his alibi.  And it‘s also possible that he did it while he was on the phone.  Don‘t ask me what sense that would make, but...

GALANTER:  Oh, Susan...

FILAN:  ... a sick thing...

GALANTER:  I mean...

FILAN:  Well no, it‘s a sick thing to do...

GALANTER:  Listen, that...

FILAN:  ... you‘re sick enough to do it...

GALANTER:  ... would be such a stretch for a prosecutor. 

ABRAMS:  All right.

GALANTER:  What—listen, the bottom line here, Dan...

FILAN:  I think it‘s a stretch...

GALANTER:  ... is that this prosecutor, while defense lawyers were banging on the door saying let me show you what we‘ve got decided to indict anyway and that‘s the real issue. 

ABRAMS:  All right.

FILAN:  The real issue...

ABRAMS:  Let me take a quick break...

(CROSSTALK)

ABRAMS:  All right. 

(CROSSTALK)

ABRAMS:  There are a lot of real issues...

GALANTER:  Why is all this coming out...

ABRAMS:  There are a lot of real issues here.  Let me take a quick break.  Greg Fulton from “TIME” thanks a lot, and Jerry Richards, having your expertise, very helpful in putting this into perspective.  The rest of the team is going to stick around because coming up, the accuser‘s father said yesterday his daughter was considering dropping the case, today the accuser‘s mother speaks, says the opposite, that she‘s not backing down. 

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

Police need your help locating Americo Chavez, 37, five-eleven, 220, was convicted of rape, hasn‘t registered his address with the state.  If you‘ve got any information on his whereabouts, Oklahoma wants to hear from you, 405-425-2500.  Be right back.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  We‘re back.  Talking about the latest in the Duke alleged rape incident.  Now there seems to be a question about the accuser‘s willingness to testify because her parents seem to be offering up some comments.  But they seem to be conflicting. 

Earlier this week the accuser‘s father said this to MSNBC‘s Rita Cosby. 

(BEGIN VIDEO CLIP)

RITA COSBY, HOST, “LIVE & DIRECT”:  We‘ve heard your daughter has considered dropping the case.  That maybe the pressure is too much.  Is that true?

UNIDENTIFIED MALE:  She has talked about it.  She has talked about it.  As a matter of fact, she told me it was getting to be too much on her.  She couldn‘t take it.  So far, she‘s stilling hanging in there though. 

COSBY:  Do you think she will continue to hang in there or is the pressure too great? 

UNIDENTIFIED MALE:  I‘m hoping she will hang in there, but I know it‘s getting rough on her now. 

COSBY:  Is it possible she may drop out of the case? 

UNIDENTIFIED MALE:  It‘s possible.  It‘s possible.  I‘m hoping not, but it‘s possible.  I‘m praying and hoping that she don‘t. 

(END VIDEO CLIP)

ABRAMS:  But on the same day he gave another network a different account.  He was asked—quote—“Does she want to take the witness stand and testify against these guys?  He said not right now I don‘t think she would.”

Question:  You don‘t she would?

Accuser‘s father:  She wouldn‘t want to. 

Then today an article in the “Durham Herald-Sun” contradicts that statement again.  They report—quote—“The father told the ‘Herald-Sun‘ on Wednesday evening he hasn‘t even discussed with his daughter whether she‘s willing to testify.  A local news station in North Carolina today reporting another statement, this one coming from the accuser‘s mother who told them her daughter—quote—“has no intentions of dropping the charges or not testifying if it goes to trial.”

I think that the lesson here, Susan Filan, is probably the one that Chris Darden was talking about yesterday, which is that they should just shut up. 

FILAN:  Yes.  He made that point very, very emphatically on your show yesterday.  But what I thought was so terribly interesting is for the first time I saw a clip of the D.A., Nifong, saying he‘s not going to be able to prosecute this case without her, almost as if setting up a way out.  And that‘s the way the prosecutor got out of the Kobe Bryant case, as well. 

I don‘t have a victim who‘s willing to testify.  I can‘t go forward.  It other words, it‘s not that I can‘t prove it.  It‘s not that I made a mistake in falsely indicting somebody.  It‘s just that my case fell apart and I thought it was really interesting that he‘s almost paving the way for that. 

ABRAMS:  I don‘t know...

FILAN:  What is that all about? 

ABRAMS:  But Georgia Goslee, I don‘t know how he would—I mean I don‘t know how he would considering—I mean the primary if not the only evidence in this case is her testimony, her account, her identification.  It would seem to me sort of a (UNINTELLIGIBLE).  Yes, if she doesn‘t want to testify...

(CROSSTALK)

ABRAMS:  ... he can‘t go forward. 

GOSLEE:  I think it would be a (UNINTELLIGIBLE), but you know if I were a betting woman, Dan, I would probably say that she probably will stick to her guns.  Because I think what has happened to her is obviously a travesty and I can imagine that the pressure on her is unbelievable.  But if I had to bet, I think she‘ll probably hang in there because...

ABRAMS:  Why do you say that? 

GOSLEE:  Just a gut feeling.  I mean I‘m speculating, as we all are...

ABRAMS:  Yes.

GOSLEE:  ... but my sense is, there is—from my perception, and I‘ve talked to a lot of people about this, it‘s almost maybe it‘s wishful thinking, but there seems to be a critical mass at this point in America that women are tired of being taken advantage of and tired of being beaten and battered...

ABRAMS:  You sound like a politician. 

GOSLEE:  I‘m not a politician...

ABRAMS:  I mean that‘s what—those kind of broad statements about women—this is about an individual case.  I mean...

GOSLEE:  I understand that. 

ABRAMS:  ... you know that the justice system looks at each case individually.  Not about women this or blacks this or Jews that or...

GOSLEE:  Listen, I‘m only giving you my opinion.  I‘m just saying that I believe that if I was a betting woman I would think that she‘s going to hang in there. 

ABRAMS:  Because of the plight that women have suffered over the years?  That‘s the reason she‘s going to go forward.

GOSLEE:  No, absolutely not.  I think because she‘s going to hang in there primarily because she really did believe that she was raped by some of these young men that attended that party and I think she knows that it‘s important for her not only for her case but for the perception of women and men in violent crimes in America.  I think it‘s important. 

ABRAMS:  Because Susan, as you pointed out on this show, if this turns out to be a false allegation, it‘s going to set back the women‘s movement a number of years...

FILAN:  This will set women back...

ABRAMS:  I don‘t remember your exact quote, but it was something along those lines.

FILAN:  I said this will set women back 100 years if this is a false allegation.  If this is a false allegation, she‘s going to be investigated to see whether she could be prosecuted.  But my earlier point, Dan, was that I‘m not—yes, it‘s clearly (UNINTELLIGIBLE) they can‘t go forward without her, but why is the prosecutor talking about that now?  It‘s almost like he‘s paving the way for a graceful out.  Why is he talking about that now?

ABRAMS:  Yale, do you think that the defense could ever use the father‘s conflicting statements about—I mean is there any relevance to that? 

GALANTER:  Oh absolutely.  I said on yesterday‘s show that this father will be subpoenaed by the defense.  He brought up the mental health issue.  He brought up the identification issue.  The defense will be able to ask him what is it—when you discussed this with your daughter, was she positive as to the identification and he‘s going to come out and either testify consistently with what he told Rita Cosby or he‘s going to say something else. 

But either way, his statement to Rita that‘s on tape will be used against him because he says she wasn‘t sure.  She was pretty sure.  When asked, 100 percent positive?  No, but pretty sure.  That‘s very telling because in America we shouldn‘t indict people unless the witnesses are absolutely positive.  That‘s what proof beyond a reasonable doubt is.  And what we‘ve clearly seen in this case, Dan, not only on the identification issue, but many issues, is that there is so much doubt in this case, that these issues should have been cleared up before this indictment was handed down.

ABRAMS:  Georgia...

(CROSSTALK)

ABRAMS:  ... hindsight is always 20/20. 

GOSLEE:  It sure is and you know what I would say...

ABRAMS:  Let me ask you this though.  It‘s related to that issue.  Would you if you were the prosecutor in hindsight have waited a little bit longer, interviewed more people, interviewed the cab driver, tried to put all your ducks in a row before seeking these indictments? 

GOSLEE:  Well I probably would.  And as you say hindsight is the greatest teacher, but you know I‘ve done criminal defense for many years and I see that these young men, even after she positively identified them, they were still afforded an opportunity to go free.  I represented so many young men, Dan, and to the other commentators and you probably know what I‘m about to say, who as soon as the slightest identification, the clients are snatched off the street, thrown in jail, and they sit in jail until the indictments come down. 

ABRAMS:  Wait, but in rape cases, I mean this is...

GOSLEE:  Rape...

ABRAMS:  This is a high...

GOSLEE:  Rape, murder...

ABRAMS:  This is high bail for a rape case in North Carolina.

GOSLEE:  It may be a high bail for a rape case, but I‘m telling you from my experience as a criminal defense attorney, I just completed a case like this, where the lady pointed the finger at my client and said he looks like the person who robbed me.  He was arrested and sat in jail until the indictment came forward.  So the other commentator saying...

GALANTER:  Well shame on the prosecutor that did that.

GOSLEE:  ... sure, sure, sure.

ABRAMS:  What, Yale? 

GOSLEE:  Yes...

GALANTER:  No, I mean shame on—a prosecutor should never throw anybody in jail on almost sure...

GOSLEE:  Well and that‘s what I‘m saying...

GALANTER:  I mean that‘s ridiculous.

GOSLEE:  It happens every day.  This gentleman is saying that he should be absolutely sure.  Guess what gentlemen?  It happens every day.

ABRAMS:  Wait.  Wait.  Wait.  Georgia...

GALANTER:  Dan...

ABRAMS:  Georgia, wait a sec.

(CROSSTALK)

ABRAMS:  Wait a sec.  This woman said she‘s 100 percent sure.  If it turns out that it was not Reade Seligmann you would agree with me this case is 100 percent done, right? 

GOSLEE:  I would not agree that it‘s 100 percent done...

ABRAMS:  She says she‘s 100 percent sure, and if it turns out it‘s not him, this case isn‘t 100 percent over? 

GOSLEE:  I don‘t think it‘s 100 percent and let me just say something. 

I read in the court documents, Dan, that some of the...

ABRAMS:  Real quick.

GOSLEE:  ... some of the lacrosse players or the men who attended the party purposely disguised themselves and would use one name...

ABRAMS:  Yes.

GOSLEE:  ... and identify themselves as another.  It looks to me like there was already a conspiracy or a setup to do something wrong from the very beginning... 

ABRAMS:  ... if there was a conspiracy or a setup, I promise you the prosecutor...

UNIDENTIFIED MALE:  Right.

ABRAMS:  ... will get some of these young men to come in and testify. 

GOSLEE:  I certainly hope so.

ABRAMS:  There‘s no question in my mind.  There is no way you get this many people at one party where you know who was at the party, all continuing to refuse to talk even after they are threatened with criminal prosecution, even after some of them have been indicted.  I promise you, Georgia, if that happened, you will see a number of lacrosse players testifying against the others.  So far...

GOSLEE:  I still think they know much more than they‘re saying. 

ABRAMS:  We‘ll see.  Susan Filan...

(CROSSTALK)

ABRAMS:  ... and Georgia Goslee and Yale Galanter, thanks a lot. 

Coming up...

GOSLEE:  Thank you, Dan.

GALANTER:  Thanks, Dan.

ABRAMS:  ... the Supreme Court now deciding whether lethal injection is cruel and unusual punishment.  One Supreme Court justice said it would not be used on dogs or cats, so why humans? 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, is lethal injection too cruel for convicted murderers?  The Supreme Court is now deciding that issue.  We debate...

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  The U.S. Supreme court weighing the question is lethal injection too cruel a method of execution?  Florida‘s death row inmate Clarence Hill says the state‘s procedures for lethal injection violate the Eighth Amendment‘s ban on cruel and unusual punishment.  While much of Hill‘s claim is based on challenging his execution, using a civil rights law, it was lethal injection that really got the Court‘s passions. 

Justice John Paul Stevens telling Florida‘s assistant attorney general that when it came to her state—quote—“Your procedure would be prohibited if applied to dogs and cats.”

While Justice Antonin Scalia arguing the other side asks, is it only excruciating or does the Constitution require a painless death?  It seems to be it‘s a very extreme position.

Nola Tedesco Foulston is the Sedgwick County Kansas district attorney. 

She prosecuted, among others, Dennis Rader, the so-called BTK killer.  David Harris, a professor of criminal law at the University of Toledo and a former public defender.  Thanks to both of you.  Appreciate it.

All right.  Professor Harris, here‘s what I don‘t understand.  They get rid of the hanging.  They get rid of the, you know, the firing lines.  They get rid of the electric chair.  They‘re trying to find the most humane way possible to execute to carry out the law.  Isn‘t Justice Scalia right that there is nothing that says it has to be painless? 

DAVID HARRIS, UNIVERSITY OF TOLEDO:  Dan, nothing in the Constitution says it has to be painless but it cannot be what the Constitution calls cruel and unusual.  And there‘s been an ongoing debate over many years about exactly what this means.  Let‘s face facts. 

What the state is doing when it executes somebody is it‘s killing a person.  And in these times when we have eliminated unnecessary cruelties and when we make sure that the rest of the criminal justice system doesn‘t create extra problems, we should, as a constitutional matter if we‘re going to kill people, do it in a way that is most painless.  That, I think, is our minimum obligation.

ABRAMS:  But most painless meaning what?  I mean they would say—the idea is to use an anesthetic before anything else kicks in.  And they tried to have an anesthesiologist on hand in California and none of the doctors would play. 

HARRIS:  It‘s true.  None of the doctors want to be involved because it‘s against their Hippocratic Oath to assist in the causing of a death. 

ABRAMS:  Except when you are pulling the plug on someone whose family wants them to die. 

HARRIS:  I‘d say that‘s a little different...

ABRAMS:  Well, but you said...

HARRIS:  ... because the person is going to die.

ABRAMS:  ... you said never and I‘m saying that there are cases when they do that.  But that‘s just—that‘s a separate pet peeve I have about this topic.  But...

HARRIS:  Sure.  Sure.  Well, you—the states could do better by administering a cocktail of barbiturates.  The objection to that is that it takes a little longer than the state wants.  I think when we‘re dealing with something like life and death, the minimum we should be prepared to do as a society is to do it in the most painless way possible. 

ABRAMS:  Ms. Foulston.

NOLA TEDESCO FOULSTON, KANSAS DISTRICT ATTORNEY:  Well of course, the Constitution does say that cruel and unusual punishment should be prevented, but actually the Clarence Hill case is not a debate in essence...

ABRAMS:  Right.

FOULSTON:  ... over the lethal...

ABRAMS:  I know.  I know. 

(CROSSTALK)

ABRAMS:  But I want to focus on this issue.  I mean because the court...

FOULSTON:  OK.

ABRAMS:  ... while they‘re taking up a separate issue as well, I want to focus on this one.  Because this is going to ultimately be the big question.  So what so do you say to Professor Harris...

FOULSTON:  Well, one of the things that‘s very important of course in the Hill case is that he really isn‘t contesting the legality of the cocktail that would be given at the time of his execution.  And it‘s just a habeas corpus issue versus...

ABRAMS:  Right.  But a lot of people are challenging it.  A lot of people are saying...

FOULSTON:  Right.

ABRAMS:  ... what Professor Harris is saying and that is that—let me quote Justice Kennedy.  “Doesn‘t the state have some minimal obligation to do research to find a method as humane as possible?”

FOULSTON:  And I think that they have.  I think that this has been tested.  That the drugs that make up the combination are used in every day surgery, in heart surgeries and are proven safe and effective as a pancuronium bromide, they give them a relaxer at first and then they use that.  And then, of course, the potassium is then leveled in.  And it takes a shorter period of time. 

As the professor was talking about the use of barbiturates, one of the things that they talked about was just giving them a real heavy does of barbiturates and putting him out, but it would take so long that people might get upset sitting there waiting for them to die.  Regardless, the method has been established and it is not cruel and it is not unusual.  The Supreme Court has never held that the death penalty is cruel and unusual. 

Now I have to contrast that or compare that with the death of individuals that suffer at the hands of these individuals.  For example, Justice Blackmun talked about a little girl who had been raped by four participants and who had stuffed her panties down her throat and she had suffocated to death.  Well, when you compare and contrast that with lethal injection, it looks pretty good... 

(CROSSTALK)

ABRAMS:  Professor Harris, final...

FOULSTON:  ... and that you had your choice.

ABRAMS:  ... final 10 seconds on that. 

HARRIS:  Well I think that‘s an invalid comparison of course.  We‘re talking about an execution by the state.  And I don‘t think we should try to prettify it.  We should do our best to make sure that our values are upheld when we kill somebody.  That‘s the bottom line.

ABRAMS:  Nola Foulston and David Harris, thanks a lot.  Appreciate it.

HARRIS:  My pleasure...

ABRAMS:  Coming up, your e-mails on the Duke rape case.  Many of you still commenting on the fact that I‘m referring to the alleged victim as a dancer or a stripper as opposed to a mother and student.  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  Time for “Your Rebuttal”.  The father of the alleged victim in the Duke lacrosse rape investigation now saying his daughter was raped with a broomstick, although up to now it seems the authorities had not pursued that theory based on the search warrants and other police documents.

Laurette Hoover in Salem, Massachusetts, “I heard about the broomstick on the news in one of the very first reports.  One of the women was reported as saying they threatened us with a broomstick.”

And Maier Negugogor from—writes in—I don‘t know where he‘s from.  Next time tell us.  “I‘ve been following the story from the beginning and was aware that the alleged victim may have been raped with a broomstick early on.  This is not something just revealed yesterday.”

Look, while everyone agrees that they stopped dancing because of a comment made about a broomstick, her father and the prosecutors had never mentioned that she was raped with a broomstick before.  That‘s why we described it as new.

From Austin, Texas, Jerry writes, “Her father says she was raped with a broom, then asked to perform oral sex, no way.  No way does a guy give her the opportunity to maim him for life after assaulting her.  No way.”

Tim Cannon on some of our guests.  “If every former prosecutor or pro-prosecution guest continues to come on your show and say we don‘t know the evidence, this could have happened or that could have happened, wait for trial, please don‘t invite them on.  I could come on your show and make such an obvious statement.”

I agree with you, Tim.  I tried.  I don‘t want that either.

Many of you still writing on how I should address the alleged victim‘s status.  Renee Sachs in New Orleans, “If you‘re going to call her the stripper, then why not call the boys the rapists?”

Well, let‘s see.  Because she was stripping.  I‘ve seen the pictures of her stripping and the young men, as I like to call them, not boys, are only accused of a crime.  Accused, doesn‘t work.

Finally, Negla Danielle Ross, “I stand by my statement that the case should be called stripper/exotic dancer versus Johns.”  I thought Johns were men who engaged prostitutes.  I haven‘t heard any evidence that suggest she was there as a prostitute, so that one doesn‘t work either.

Joe, you‘re nodding because—why?  That‘s what they call you? 

(UNINTELLIGIBLE)

Your e-mails abramsreport@msnbc.com.  Be right back.

(COMMERCIAL BREAK)

ABRAMS:  That does it for us for tonight.  Coming up next is “HARDBALL” with Chris Matthews.  Norah O‘Donnell is filling in.  Tomorrow on the program, of course, we‘ll continue to follow the Duke story and then there‘s this missing soldier out there.  We‘re going to follow that as well.

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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