updated 5/1/2006 11:49:47 AM ET 2006-05-01T15:49:47

Guests: Ted Pollard, Carolyn Costello, Mark Edwards, Susan Filan, Georgia Goslee, Yale Galanter, Michelle Suskauer, James Ewinger, Elizabeth Kelley

DAN ABRAMS, HOST:  Coming up, we have got the report from 10 years ago where the accuser in the Duke lacrosse rape case claims she was raped by three other men.  The prosecutor says that case may not be relevant here, but is that really true? 

The program about justice starts now.

Hi everyone.  First up on the docket, a bombshell in the Duke lacrosse rape investigation.  According to this police report filed in 1996, the alleged victim said she was raped in 1993, also by three men.  She was 14 years old at the time of the alleged incident.  When she reported it three years later, she told police that for—quote—“a continual time, the three men raped and beat her in Creedmoor, North Carolina” about 15 miles from Durham, where she was living.  None of the three men was charged.  Before we talk about how it might affect this case, joining me now on the phone is Creedmoor Police Chief Ted Pollard. 

Do you know why no charges were filed in that case?

CHIEF TED POLLARD, CREEDMOOR, NC POLICE DEPT. (via phone):  Presently, the only thing that we have been able to locate is a report that was filed by the alleged victim in August 18 of 1996, alleging a sexual assault and a beating that occurred in June of 1993. 

ABRAMS:  How did you come to find this? 

POLLARD:  We were contacted by Associated Press, where they read an article that was in “Essence” magazine, where a family member did an interview and they called us and asked us to look into it, and we did some research and we located the report.

ABRAMS:  And so explain to us what this means, that there‘s a report out there and yet that we don‘t know what happened after that.  Does that mean someone came in, made a complaint, and do we know anything about what likely happened after that? 

POLLARD:  No, sir.  From the information that we‘ve been able to obtain from the news media, that the alleged victim made a decision not to pursue the case further.

ABRAMS:  And there‘s no way to know in terms of what your office did or didn‘t do, in terms of the investigation, et cetera, right? 

POLLARD:  Yes, sir.  Due to the lengthy time period being 10 years ago, and the filing system that we had at that time, was antiquated and files have been moved to several places, we were able to locate the original report that was taken by the officer in our archives. 

ABRAMS:  So let‘s be clear, no one in your office has a specific memory of this allegation and the circumstances surrounding it, correct? 

POLLARD:  Yes, sir, that‘s correct. 

ABRAMS:  All right.  Chief Pollard, thanks a lot for coming on the program, taking the time.  We appreciate it. 

POLLARD:  Yes, sir.  Thank you. 

ABRAMS:  All right.  So remember, we‘re talking about a report that‘s filed in ‘96, about an incident that had apparently occurred three years earlier.  Now, we are hearing, as the chief pointed out, from her parents, talking about why the case may have been dropped.  The parents told NBC 17 that their daughter was attacked by the boy she was dating at the time and two of his friends.  The three allegedly held her against her will in a house, raped her and threatened to kill her. 

Her parents said she was so frightened at the time that she decided not to press charges.  She lost a tremendous amount of weight the following week and became suicidal, blaming herself over what happened, so they took her to see a psychiatrist they said. 

Joining me now is reporter Carolyn Costello from NBC station WNCN-TV in Raleigh-Durham.  She tracked down one of the men who has been named as one the attackers or presumably as one of the people in there.  Carolyn, what do he have to say about this?

CAROLYN COSTELLO, WNCN-TV REPORTER:  Well, he says he was 13 years old back in 1993, he says his brother also named in that police report is one of the attackers.  We know no charges have been filed in this case, but he also says that he never even knew he was named as an attacker.  He says he‘s just learning about this now.  He says he has no idea who the accuser is.  He says a rape never happened, and he also says that he‘s getting married very soon, and he really doesn‘t need this in his life right now. 

ABRAMS:  So he says he doesn‘t even know who she is.  Meaning, he didn‘t even recognize...

COSTELLO:  That‘s what he says. 

ABRAMS:  ... her name when you mentioned the name to him. 

COSTELLO:  He said he has no idea who she is, he‘s never heard anything about this until now. 

ABRAMS:  And Carolyn, do you have any more information about why they decided not to pursue this case or why she decided not to pursue the case? 

COSTELLO:  Well, I was told earlier today by some law enforcement people out here in Creedmoor that they believe the reason was that she didn‘t want to go forward.  Another source in the court system here says he didn‘t believe there was sufficient evidence to move forward in this case. 

ABRAMS:  All right.  Carolyn Costello, once again, keep up the great work out there.  We appreciate it. 

COSTELLO:  Thank you. 

ABRAMS:  Just hours after the story broke, D.A. Mike Nifong came out and offered his first comments about the case in weeks and he seems to think it‘s probably not even relevant. 

(BEGIN VIDEO CLIP)

MIKE NIFONG, DURHAM, NC DISTRICT ATTORNEY:  North Carolina, like most states, has (UNINTELLIGIBLE) evidence what is commonly referred to as a rape shield law.  That law makes the prior sexual behavior of the victim in a rape prosecution irrelevant, unless it falls into one of four narrowly defined categories.  It further provides that before either side in such a case may offer such evidence at trial, that side must first request that the court conduct an in camera hearing to determine the relevance of such evidence and the circumstances under which it may be offered.  In short, the jury that decides this case may or may not hear the “evidence”, in quotations, reported by The Associated Press. 

(END VIDEO CLIP)

ABRAMS:  It sounds like what he‘s trying to suggest is that, hey, it‘s a nice little media story, but it‘s not really relevant legally.  Can that really be the case?

Joining me now former prosecutor and MSNBC legal analyst Susan Filan, criminal defense lawyer Yale Galanter, Georgia Goslee, a former federal prosecutor turned defense attorney, and Mark Edwards, who is a North Carolina criminal defense attorney.

All right.  Mark, since you‘re a North Carolina guy, I‘ve got the North Carolina law here in front of me that the D.A. is referring to.  This is to protect women who accuse people of rape of having their sexual behavior coming in.  This isn‘t about sexual behavior.  I mean, if this was an allegation that either was false or she decided not to go forward with it, for some reason or another, that‘s going to be relevant in this case, no? 

MARK EDWARDS, NC CRIMINAL DEFENSE ATTORNEY:  It seems to me it would be, Dan.  I think when it talks about sexual behavior, it‘s talking about consensual sexual behavior and this prior rape allegation is not an act of consensual sex, so I think it is relevant, and particularly it could become relevant depending on the reason that the charge was never followed up on or if she eventually withdrew her claims that a sexual assault happened.  I think it‘s very relevant at that point.

ABRAMS:  Yes, what if that‘s true, Susan?  What if the NBC 17 report is accurate, that her parents said she was frightened at the time, she decided not to press charges, et cetera.  Does that come in—assuming that‘s the case, assuming they can‘t demonstrate that it was a clearly false claim, but that she made a report, pulled out, does it come in?

SUSAN FILAN, MSNBC LEGAL ANALYST:  I‘m not sure, Dan, I have to tell you.  Under rape shield, the prosecution is going to argue like heck that this doesn‘t come in, but the defense does have a shot at getting it and I think the only way it clearly comes in if they can show for a fact that it was a false allegation, and I think there‘s no question that it comes in.  But to me, let‘s say it‘s not admissible, how would you feel as a juror if you were convicted and found out afterward that somebody had made a complaint so similar, a gang rape, three men, 10 years ago, waited three years to complain and then never followed through.  You know, it could be one of those sickening twists of the law where it‘s designed to protect the victim but it‘s actually quite possibly going to injure the accused.

ABRAMS:  Georgia, what do you make of that?

GEORGIA GOSLEE, FORMER FEDERAL PROSECUTOR:  Well, first of all, I kind of agree with Ms. Filan that I think that the prosecution or the defense has a pretty stiff burden here.  I‘ve looked at the rape shield law as well and it‘s pretty well defined that there‘s a stringent requirement for the defense and they‘ve got to start off by filing an application and I believe they‘ve already filed that application and then there has to be a hearing in camera...

ABRAMS:  Right.

GOSLEE:  ... and so the judge has to make determinations...

ABRAMS:  All right, but that‘s all the procedural stuff. 

GOSLEE:  Yes.

ABRAMS:  The bottom line though is that this isn‘t really just sexual behavior.  And this is not—it‘s not this sort of allegation that the rape shield law was designed to protect against.  The rape shield law was designed to protect against women‘s reputations getting sullied.  For example, in this case...

GOSLEE:  No...

ABRAMS:  ... if she had sex with someone you know four hours before this incident, which couldn‘t have any impact on the case for some reason or another or let‘s say someone in another case has sex with five people beforehand, their point was that‘s not a reason to sully the accuser if it‘s not relevant to the case.  That‘s different than what we‘re talking about here. 

GOSLEE:  Well, I‘m not so sure, Dan, because the whole purpose and I‘ll read this to you, it says the aim is to safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that‘s associated with public disclosure...

ABRAMS:  But this isn‘t about sexual stereotyping.  This is about allegations of rape. 

GOSLEE:  It‘s allegations, but it is still prior sexual activity that‘s been alleged by the victim, and I think that it is exactly what the rape shield law is designed to protect...

ABRAMS:  Come on.  I mean wait.  Whether it fits in or not, you‘re not really going to argue this is—when the legislators were creating the rape shield law, you‘re not really going to suggest they were saying so when a woman has accused another group of men of rape in a separate case, we want to make sure the rape shield law is there to protect her.  No.  It was designed to protect women so that their reputations aren‘t sullied, based on how many men they have slept with or something like that.

GOSLEE:  Are you saying that this would not affect her reputation? 

ABRAMS:  I‘m saying that the bottom line is when you make other allegations of rape, when it‘s three men made an—when you‘ve made an allegation against another three men and accused them of rape, I think it is almost certainly going to be relevant in this case when the case never went to trial. 

GOSLEE:  I think they have to establish, Dan, clearly, that they were false allegations, and I don‘t think they‘ve done that.  And I don‘t think they‘re going to be able to be successful to prove that.

ABRAMS:  Yale? 

GOSLEE:  I don‘t think so...

ABRAMS:  All right.  Yale Galanter...

YALE GALANTER, CRIMINAL DEFENSE ATTORNEY:  Dan, you‘ve hit the legal issue right on the head.  This falls outside the purview of the rape shield statute, because the defense is not going to try and introduce prior sexual conduct.  It‘s the opposite...

ABRAMS:  They might.  Wait.  They might, Yale. 

(CROSSTALK)

ABRAMS:  They might in another context.  Right.

(CROSSTALK)

GALANTER:  Yes, but not in this 1996 report. 

ABRAMS:  Right.

GALANTER:  What they‘re going to do is they‘re going to come in and say it never occurred and not only did it never occur, we have witnesses who spoke to the complaining witness, who will say, they didn‘t do anything to her.  They never touched her.  The father gave an interview yesterday to a Raleigh newspaper and said she was never sexually assaulted and those boys never touched her, which makes this a prior inconsistent statement, it‘s a false police report, it is clearly relevant to test her credibility.  It has nothing to do with the rape shield law. 

ABRAMS:  Let me read what “The News Observer” said.  The woman‘s father said Thursday his daughter was not raped in the 1996 incident.  They didn‘t do anything to her, he said.  The father said his daughter was held against her will by a group of men who had picked her up from school in Durham and drove her to Creedmoor.  She was not sexually assaulted or injured in the encounter.  He said she was returned home safely the same day.

Of course, that‘s inconsistent again with what NBC 17 is reporting that the—quote—“parents” said. 

GOSLEE:  I don‘t think it‘s that clear-cut, Dan.  I don‘t—the fact that these gentlemen say—said that nothing happened, I think their credibility has to be tested as well.

ABRAMS:  Well that‘s no question.  No question. 

(CROSSTALK)

GALANTER:  It‘s the father who is saying that nothing occurred. 

GOSLEE:  Well the father—was the father there...

GALANTER:  It‘s the complaining witness‘ father...

(CROSSTALK)

ABRAMS:  Hang on.  Hang on.  One at a time.  One at a time.  Susan...

(CROSSTALK)

GALANTER:  The father spoke to the daughter and is reporting that nothing occurred.  That makes it a prior false statement.

FILAN:  OK, but wait a second.  There was a report that the dad said that he didn‘t know about this, the mom had known about it from 10 years ago, but they hadn‘t told the dad.  The dad knew something bad happened in that house...

ABRAMS:  Right.

FILAN:  ... but he didn‘t know what.  It was only a few days ago that he learned that it was actually a claim of sexual assault, so he may have said I didn‘t think that she was raped before he found out that the mom and the daughter tell her...

GALANTER:  That‘s not what he said, Susan.  He told the Raleigh newspaper that a sexual assault did not occur...

FILAN:  Yes, in that statement he did. 

GALANTER:  The boys didn‘t touch her.

FILAN:  But at another time...

GALANTER:  He said he didn‘t...

FILAN:  ... at another time he said I didn‘t know.  They didn‘t tell me about it.  They didn‘t tell me about it until just a few days ago.  They were trying to protect him because they say he‘s a little man, he‘s 120 pounds soaking wet and they were afraid he was going to go to that house and get his clock cleaned or get killed...

(CROSSTALK)

ABRAMS:  Let me ask Mark Edwards...

(CROSSTALK)

GALANTER:  In any event, it comes into test her credibility.

ABRAMS:  But Mark Edwards, let me ask you this.  Let‘s assume for a moment that they cannot prove that it was a false accusation, but they simply know that an accusation was made, that a police report was filed, and that she decided not to move forward with the case.  Does that under North Carolina law come into evidence in this case?

EDWARDS:  I think it‘s going to be tougher to get it in under those circumstances.  I think there‘s a much better chance that the judge is going to hold that it is not relevant under other sections of the evidence code, not under rape shield, but that it‘s simply not relevant for purposes of the case.  Now another way the defense can try to get it in, based on what you stated earlier...

ABRAMS:  Yes.

EDWARDS:  ... someone in a position of power decided that these claims were not credible.  Now they may not be able to get in that these acts occurred...

ABRAMS:  Right.

EDWARDS:  ... but I think they can call that person in to testify...

(CROSSTALK)

EDWARDS:  ... as to—their opinion as to her credibility and then it will be a question...

(CROSSTALK)

EDWARDS:  ... of the state to open the door as to what it pertained to. 

ABRAMS:  All right.  I‘ve got to take a quick break here.  I think that this may end up leading the alleged victim to pull out of this case, but let‘s see.  We‘ll talk about that after the break.  The panel is going to stick around. 

Up next, the D.A. is on the attack again, saying he‘s inspired by all the positive letters he‘s gotten from rape victims.  He added that two of those were letters from former Duke students who say they were assaulted by other former Duke students.  The question, of course, how is that relevant in this case?

(COMMERCIAL BREAK)

ABRAMS:  Before we get back to the Duke investigation, we have got some breaking news to report to you that Rush Limbaugh, the radio star, has apparently turned himself in to the Palm Beach Sheriff‘s Department and has been charged with one count of fraud, concealing info to obtain a prescription, otherwise known as doctor shopping. 

Now, his attorney, Roy Black, has just issued a statement about this, basically saying that this was a settlement agreement.  Not a term generally used in a criminal case.  Basically it sounds like they entered into some sort of plea agreement with the Palm Beach County State Attorney‘s Office to end the investigation of Rush Limbaugh.

Roy Black has basically said—quote—“I am pleased to announce the State Attorney‘s Office and Mr. Limbaugh have reached an agreement whereby a single count charge of doctor shopping filed today by the state attorney will be dismissed in 18 months.”  He goes on to say Mr. Limbaugh and I have maintained from the start that there was no doctor shopping and we continue to hold this position.  Accordingly, we filed today with the court a plea of not guilty to the charge filed by the state.

Mr. Limbaugh has agreed to make a $30,000 payment to the state of Florida to defray the public cost of the investigation.  The agreement also provides he must refrain from violating the law during this 18 months, must pay $30 per month for the cost of supervision and comply with other similar provisions of the agreement.

They go on to say that other actions today the state attorney has filed a single charge of doctor shopping with the court and that the charge is being held (UNINTELLIGIBLE) under the terms of an agreement between the state and Mr. Limbaugh.

All right, so what does all of this mean for Rush Limbaugh?  Is this a victory for him in the effort to put all of this behind him?

Michelle Suskauer is a Florida attorney, who joins us now. 

Michelle...

(CROSSTALK)

ABRAMS:  ... a victory for Rush Limbaugh?

MICHELLE SUSKAUER, CRIMINAL DEFENSE ATTORNEY (via phone):  Yes, it is.  This is exactly what Roy Black wanted from the very beginning and it‘s not what was offered to him.  And so this is a wonderful settlement, it‘s called basically a diversionary program where he jumps through a couple of different hoops and in 18 months the charges are dismissed and his lawyer can go ahead and even move to seal and expunge the case itself, so it‘s a big victory. 

ABRAMS:  See, I don‘t understand.  So, he‘s—I‘m looking at a mug shot of him right here in my hand—there it is from Palm Beach County.  He apparently turned himself in at—around 4:30 this afternoon.  There‘s a charge there, fraud, concealing photo obtained prescription, and yet he‘s pleading not guilty.  How does that work? 

SUSKAUER:  Well he probably hasn‘t—this is—this is happening in such a rapid-fire motion.  Because normally when somebody turns themselves in even with an agreement they are in custody at least down here in Florida, for at least six to eight hours if not more.  He was in and out of custody very, very fast, so it sounds like a little special treatment going on.  But it sounds like there was—this diversionary program agreed to but it‘s probably not all signed, sealed and delivered...

ABRAMS:  But how does he get to plead not guilty? 

SUSKAUER:  Well he waived his arraignment, so he won‘t have an upcoming court appearance yet and he‘s entered the initial plea, but eventually he‘s going to sign an agreement with the State Attorney‘s Office to go through this diversionary program and then the charges will get dropped.

ABRAMS:  All right.  If you could say with us for a minute, Michelle.  Mark Potter is the one who informed us of this, NBC News‘ correspondent there.  Mark, what else do you know?  Mark?

(AUDIO GAP)

ABRAMS:  I would say Mark is not with us.  All right, Michelle, let me come back to you because if Mark is with us, I can‘t hear him. 

Again, so why would the state enter into this agreement?  I mean it sounds as if the state has been going after Limbaugh in a variety of ways, meaning taking cases up to the appellate courts, et cetera, making law on issues about the privacy between doctors and patients...

(CROSSTALK)

ABRAMS:  ... and now they are basically saying, we‘ll take a not guilty plea from Limbaugh and as long as he doesn‘t do anything else wrong for the next 18 months...

(CROSSTALK)

ABRAMS:  ... then he‘s going to be free and clear? 

SUSKAUER:  Well that‘s a provisional not guilty plea.  Because he‘s going to have to enter a pretrial agreement where he‘s going to have to enter some sort of a plea, a provisional plea of no contest or guilty. 

ABRAMS:  OK.

SUSKAUER:  So that‘s just, you know, pro forma.  But in terms of the way the State Attorney‘s Office has handled this, this has been very hard-fought every step of the way and they‘ve won, but it‘s been a battle.  It‘s been a tremendous battle and a lot of resources have been expended and they‘ve gone all the way up to the Florida Supreme Court on this. 

And like I said, they have won every step of the way.  And now they had to deal with—it‘s come back down where they‘ve had to deal and battle individual doctors who are now asserting patient-doctor privileges.  So I think it‘s probably—you know maybe they are just tired and they just thought this is really the best we can do.  Let‘s end this for both sides. 

ABRAMS:  Yes.  I mean look, it does seem—I mean Roy Black seems to be declaring victory in this press release that he‘s just issued.  But it does sound like it is a victory for Rush Limbaugh and for Roy Black in this context. 

SUSKAUER:  Oh, I agree with you.  It really is because this is what—from a correspondence that was publicly released in the beginning of this whole nightmare, this is what he had asked for.  He had asked for this type of a pretrial intervention or a diversionary program.  And that while—I believe while Rush Limbaugh was in drug treatment and the State Attorney‘s Office was adamant and said no, we‘ll offer you three years probation.  So this is really is exactly—I mean he‘s gotten there you know a very long way and a couple of years down the road, but he really has gotten what he‘s wanted, so Roy Black has really done a very good job. 

ABRAMS:  He writes in his press release, Mr. Limbaugh will continue in treatment with the doctor he has seen for the past two and a half years.  After Mr. Limbaugh completes an additional 18 months of treatment the state attorney has agreed to drop the charge.  Mr. Limbaugh has agreed to make a $30,000 payment to the state of Florida to defray the public cost of the investigation.  Drop the charge, what does that mean? 

SUSKAUER:  That means that they‘re going to actually enter an official nol-pros or a dismissal.  They‘re not going to say there wasn‘t any probable cause, but they‘re going to dismiss it.  That doesn‘t mean that the record has been erased.  Roy Black then has to go and have some more judicial proceeding to get the charge sealed or expunged, but they will drop the charges.

ABRAMS:  So, in the end, in 18 months from now, assuming that all of the terms are met, does that mean that Rush Limbaugh has a clean record?

SUSKAUER:  That means that the record is dismissed, but the record still exists as an arrest because he did turn himself in.  So, until the case is actually sealed or expunged or erased, although there won‘t be any conviction on the record, the record will still exist until Roy Black goes that extra mile.  But it really is a victory for him and he‘s done very well.

ABRAMS:  Why now, Michelle?  I mean what happened do you think that‘s led—I guess from your perspective, the prosecutors to be willing to agree to this? 

SUSKAUER:  Well the main prosecutor in the case actually was just recently elevated to judge.  He was the one who was moving forward with this, so I know that there was sort of a changing of the guard of the assistant prosecutor that was handling this.  But also I think that there may have been some problem with trying to get some of the witnesses to talk and to waive that—whether there even still was a doctor-patient privilege.  Because really without the doctors or any people who are working in those offices to say that they knew that other doctors existed, basically what this is, is overlapping prescriptions. 

That‘s what Rush Limbaugh got.  He went to one doctor, he got prescriptions and then before—within 30 days he went in and he got overlapping prescriptions.  So the doctors really—it was important to know whether or not the doctors knew that these prescriptions were overlapping or whether Rush Limbaugh misled them in some way.  So there may have been some road blocks in trying to get the doctors to really talk and I‘m sure each of them had...

ABRAMS:  Yes.

SUSKAUER:  ... their own lawyers and they were fighting that every step of the way.  So there may have been some stumbling blocks that the state attorneys had here.

ABRAMS:  And so, Michelle, you are telling us that it is a bit misleading, although you‘ve been very complimentary of Roy Black as to the deal that he was able to reach here...

SUSKAUER:  Yes.

ABRAMS:  ... it‘s a bit misleading you are saying for Roy to write in his press release, that Mr. Limbaugh and I have maintained from the start that there was no doctor shopping.  We continue to hold this position.  Accordingly, we filed today with the court a plea of not guilty to the charge filed by the state.  You are saying that eventually they‘re going to have to either no contest or guilty. 

SUSKAUER:  Well that‘s—you know, that‘s a very artful spin.  And if you really dissect it, it makes absolutely no sense.  Why is he going to enter a plea of not guilty and then enter an agreement with the state attorney if he did absolutely nothing wrong.  But—so, he‘s really spinning.  I think Roy Black did a very good job in getting a good result for his client, but certainly, you know, he could have continued to fight this if he felt...

ABRAMS:  Yes.

SUSKAUER:  ... that you know he was going to be successful in the end. 

ABRAMS:  All right.

SUSKAUER:  But I think it probably is a good resolution for everyone. 

ABRAMS:  I‘ve got 30 seconds left.  NBC‘s Mark Potter joins us now. 

Mark, what can you add? 

MARK POTTER, NBC NEWS CORRESPONDENT:  Well I just talked to, Dan, with Mike Edmondson, the spokesman for the Palm Beach County State Attorney‘s Office.  He said that this settlement plan was brought to them by Roy Black on Wednesday.  They worked it out.  And he said this is the sort of resolution done for first time offenders.  It sets conditions as I‘m sure you‘ve been talking about that he has to comply with. 

If he does that, his record is expunged, if not it goes to trial.  He was booked today in the Palm Beach County jail on the charges that you‘ve discussed, but he said that this was something that was brought to them.  And again, it‘s not an unusual sort of resolution, again, in the case of a first-time offender.  And it‘s a pretrial intervention and they‘re still working out some of the final details on this, but that‘s where it stands right now and it brings the case to a close if Rush Limbaugh complies within 18 months.

ABRAMS:  Mark Potter, thank you very much for this report.  We‘re going to take a break.  When we come back, more on the Duke rape investigation.  Stay with us. 

(COMMERCIAL BREAK)

ABRAMS:  The D.A. in the Duke lacrosse rape investigation comes out swinging and he‘s going after the media coverage.  Do we deserve it?  Coming up. 

(NEWS BREAK)

(BEGIN VIDEO CLIP)

NIFONG:  The media of course are not bound by the same rules that govern our courts.  Their decisions on what to report and how they report it can have a substantial impact on the ability of our system to effectuate justice.  That impact is often positive, unfortunately, can also be negative.

(END VIDEO CLIP)

ABRAMS:  On the ability of our system to effectuate justice—but how in this case?  Not really exactly certain, Susan Filan, why—how is the media affecting at this point his right to effectuate justice?  I mean if he wants to later say oh, you know we couldn‘t find jurors, et cetera, we can talk about, even though every high profile case I‘ve covered, including the O.J. Simpson civil case where everyone had seen the case, the criminal case, they were still able to find people.  Yes, they knew a little bit about it, but they didn‘t know all the details, et cetera, so how are they not able to effectuate justice.

FILAN:  Well I think what he‘s talking about is exactly that, the jurors, but what he‘s saying is this is making me look really bad...

ABRAMS:  Right.

FILAN:  ... so when I go into court now to try to present this case, it doesn‘t sound so good, I‘m afraid people are going to hold that against me.  You wouldn‘t hear him saying that if he were looking like he was winning in the media and this was coming out really well for him, so I think he‘s saying is hey, stop slamming me.  I can‘t speak back.  I‘m not in a position.  I have to try this in the court.  I can‘t go on TV anymore and I can‘t speak anymore, so could you just back off and lay off and let me do my job.  That‘s not really appropriate.

ABRAMS:  And Yale, I don‘t know, I mean it seems that in every case I cover, I mean, you‘re always—you know in a lot of the cases you cover, it‘s always like oh, the media‘s fault and I always go after you all the time, Yale, you‘re saying O.J., for example, your client, always blaming the media for his conviction, as opposed to the facts and in all of these cases, it‘s always the media‘s fault, you know, and sometimes, look, on occasion, you can say the media is being unfair, the media is doing this, the media is doing that, but the bottom line is that, you know, I just—I think that this is just another—this is just a silly comment by Nifong. 

GALANTER:  Well there are two issues, Dan.  One is in terms of you and I, we‘ve certainly had some contentious debates over the years on this issue and quite frankly most of the time you‘ve been right about it.  That‘s the first thing and I say that publicly.

ABRAMS:  All right...

GALANTER:  The second thing...

ABRAMS:  You can stop there.  You can stop there, Yale...

(LAUGHTER)

(CROSSTALK)

ABRAMS:  ... because really, nothing else needs to be said. 

(CROSSTALK)

ABRAMS:  The show is over.  Thank you everyone.  I‘ll see you tomorrow.  I‘m sorry...

GALANTER:  Good-bye. 

ABRAMS:  Go ahead.

GALANTER:  Dan, what Susan has been saying all week is really starting to ring true.  He‘s planning an exit strategy and what he‘s trying to do is get reelected.  The only reason he give that—gave that political rah-rah speech, I‘m helping all these unknown women at Duke University and I‘m fighting the good cause, even though I‘m getting slammed in the media every day, please elect me. 

This is a man who‘s running for reelection next week, he‘s hanging on by a thread, he‘s doing everything he can to get reelected and he really is the captain of a sinking ship.  Your program has brought to light the fact that Mike Nifong has probably indicted innocent men.  We have shown timelines, pictures, all the things that the defense lawyers knocked on his door, tried to do before this indictment, where he had to run to the grand jury two weeks ago and indict these boys.  This has political written all over it and it‘s programs like yours that have brought it to light.

ABRAMS:  Let me let Georgia give a quick response and then I want to play a sound bite of Mike Nifong where I entirely agree with everything he said. 

Georgia, you want to get a quick response.

GOSLEE:  Well I mean you just never know.  I think as a prosecutor, he‘s probably I think, Mr. Yale is correct about to some degree, it‘s probably political, but I think he‘s probably just frustrated.  I mean here he‘s got a major case, the light shining squarely on him and...

ABRAMS:  And every day there‘s bad news, right?

GOSLEE:  Well everyday, but listen, one thing about it, this is for sure, we‘re all trial lawyers.  One day you‘re up and the next day you‘re down, so you‘re feeling real good today, the next day—all he has to do, if he believes in his heart that he‘s doing the right thing, tough it out, and in the end, we‘ll see.

ABRAMS:  Here‘s what Mike Nifong said about his obligation in this case and on this particular point that he makes I entirely agree with him.

(BEGIN VIDEO CLIP)

NIFONG:  It is important to keep in mind that it is the finder of fact in any criminal case the jury, who must presume innocence.  Not only is the prosecutor not required to presume a defendant innocent, but it would be a violation of his ethical duties to prosecute any person and whose guilt he did not personally believe and if the prosecutor personally believes in a defendant‘s guilt, it would be a violation of his moral responsibility to the victim and to his community not to prosecute a case because doing so was not popular or because he was worried that he might not win at trial.

(END VIDEO CLIP)

ABRAMS:  Susan, I agree with everything he said except the very end where he says because he might not win at trial.  If you‘re a prosecutor, and on this one, I‘m not saying he‘s wrong, but I‘m a little torn on this, so I want to get your sense on this, if he thinks that he‘s not going to win at trial and yet still believes the accuser, should he take it to trial. 

FILAN:  Absolutely, you don‘t not try a case because you‘re afraid you‘re going to lose, if that‘s how you feel...

ABRAMS:  Even if you think—even if you expect you‘re going to lose, even if you think...

FILAN:  Yes.  Absolutely.

ABRAMS:  ... you won‘t be able to prove the case beyond a reasonable doubt? 

FILAN:  No, no, no, no, that‘s different.  That‘s different.

ABRAMS:  That‘s what you‘re saying. 

FILAN:  No, no, no, no...

ABRAMS:  You‘re saying I don‘t think I‘m going to win.  I‘m saying I don‘t think I‘m going to be able to prove the case beyond a reasonable doubt.

FILAN:  No, no, no, you can have juror nullification.  You can prove a case beyond a reasonable doubt.  The jury just doesn‘t like your case or doesn‘t like the victim.  I mean funky things happen at trial and if you‘re afraid to go to trial, you don‘t belong in a prosecutor‘s office, you don‘t belong being a trial lawyer.  But I‘ll tell you what I do disagree with what he says, if you don‘t personally believe in a defendant‘s guilt, then you don‘t take it to trial.  As a prosecutor, you can‘t personally vouch for what actually happened at a crime scene.  You‘re just like the jury in that way...

(CROSSTALK)

ABRAMS:  But you have to make a judgment...

FILAN:  You make a judgment, but you don‘t personally vouch.  I mean God forbid, what if you‘re wrong.  That‘s what juries are for.

ABRAMS:  Right, but you have to—but you have enormous power as a prosecutor...

FILAN:  You have enormous power...

ABRAMS:  ... and he‘s got...

FILAN:  You have enormous responsibility...

ABRAMS:  That‘s right and as a result...

FILAN:  ... you make a judgment call...

ABRAMS:  He‘s right.  He‘s right.  He has to...

FILAN:  But you don‘t personally vouch...

ABRAMS:  Yes, he‘s got to personally believe in his case, otherwise this case shouldn‘t be going to trial.

FILAN:  You don‘t necessarily know if a claim of self-defense versus murder is going to prevail, you don‘t necessarily know how a jury is going to see it.  The prosecutor isn‘t the judge and the jury.  The system isn‘t set up that way. 

ABRAMS:  I think...

FILAN:  And it isn‘t suppose to be set up that way.

ABRAMS:  I think it is.  I think it‘s set up so the prosecutor has enormous discretion so that he or she...

UNIDENTIFIED MALE:  Yes.

ABRAMS:  ... has to make very tough calls and has to take the responsibility...

(CROSSTALK)

ABRAMS:  Very quickly.  I‘ve got to wrap it up.

FILAN:  (UNINTELLIGIBLE) The problem I have is personally vouch. 

ABRAMS:  All right.  Anyway.  All right.  Yale Galanter, Georgia Goslee...

(CROSSTALK)

ABRAMS:  ... Mark Edwards, I got to wrap it up.  I‘m sorry. 

GOSLEE:  OK.

ABRAMS:  Sorry, Georgia.

(CROSSTALK)

ABRAMS:  ... see you soon.  Thanks for coming on the program. 

GOSLEE:  OK. 

ABRAMS:  Good to see you. 

All right, Susan is going to stick around for another segment.

Coming up, a priest accused of murdering a nun in a chapel one day before Easter carving an inverted cross on her chest, we get an update on the trial next. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, prosecutors say the same priest who presided over the funeral of a murdered nun more than 25 years ago is actually the one who killed her.  We‘ve got the latest on the trial, coming up next.

(COMMERCIAL BREAK)

ABRAMS:  It seems like the ultimate act of sacrilege, the murder of a nun by a priest in a hospital chapel.  Prosecutors say that‘s what Reverend Gerald Robinson did to Sister Margaret Ann Pahl 26 years ago.  First strangling her, then stabbing her 31 times, including some wounds that formed an inverted cross.  Housekeeper, Shirley Lucas, who didn‘t want to be seen on camera, testified about her final encounter with Sister Pahl not long before her murder.

(BEGIN VIDEO CLIP)

SHIRLEY LUCAS, FORMER HOUSEKEEPER:  She took my hand, and wished myself and my two daughters Easter blessings and peace, and kind of squeezed my hand and said, why do they cheat God out of what belongs to him?  And then she squeezed my hand and turned around and walked away.

(END VIDEO CLIP)

ABRAMS:  The reference to cheating God, Sister Pahl was said to be upset with how Robinson ran the Good Friday service.  The question, does any of the evidence we‘ve seen so far add up to a possible conviction?  The prosecution seems to be basing its case on Reverend Robinson‘s letter opener, but experts don‘t seem to agree it‘s the only weapon that could have killed the nun.  And while a stain—excuse me—on an altar cloth found on the victim could match a medallion on the letter opener, famed forensic expert Dr. Henry Lee says it‘s consistent but not conclusive.

(BEGIN VIDEO CLIP)

DR. HENRY LEE, CRIME SCENE EXPERT:  I cannot come here to tell you this pattern is produced exactly by this.  I only can say similar to.

(END VIDEO CLIP)

ABRAMS:  Elizabeth Kelley is a criminal defense attorney, James Ewinger is a reporter with the Cleveland “Plain Dealer”, who‘s covering the case, and I‘m joined again by MSNBC legal analyst and former prosecutor, Susan Filan. 

All right.  James, is this case as tough a case for the prosecutors as it sounds?

JAMES EWINGER, CLEVELAND “PLAIN DEALER” REPORTER:  Well I think that it‘s a fair conclusion.  I think that you put your finger on the important word there and that‘s possible, because they speak of the letter opener as the possible or likely murder weapon.  They use words like—the experts are using words like similar to or could be or can‘t be excluded.  And in addition to that, they can put the letter opener whether it‘s the murder weapon or not, in the priest‘s possession, but they can‘t put it in his hand at the time of the killing and they have not yet put him at the scene of the slaying, so they have a ways to go yet and there‘s a possibility that they may be at least halfway through their witnesses, and maybe more so, they‘re expected to rest next week.

ABRAMS:  Let me lay this out for the people who haven‘t been following the case that closely.  The prosecution‘s key evidence, Reverend Robinson‘s letter opener blade apparently fits the wound in the victim‘s jaw, bloody imprints on the altar cloth consistent with the letter opener.  A medallion on the letter opener is similar to a bloodstain on an altar cloth.

The letter opener was locked away in Robinson‘s room and the letter opener was—quote—“sumptuously clean” when examined.  The defense, no direct evidence that he was at the murder scene.  His DNA was not found on altar cloths or the victim‘s underwear and scissors missing from the crime scene could have made imprints on the altar cloth. 

Elizabeth Kelley, it does seem like a tough case for prosecutors. 

ELIZABETH KELLEY, CRIMINAL DEFENSE ATTORNEY:  It seems like an impossible case for the prosecutors.  They couldn‘t make their case against Father Robinson 26 years ago and today in a Toledo courtroom they‘re not making the case any better.  And as you already said, there‘s absolutely no physical evidence thus far tying Father Robinson to the murder.  And the fact of the matter is, the prosecutor‘s witnesses are helping the defense.

ABRAMS:  He‘s been a suspect since moment one in this case. 

FILAN:  Right.

ABRAMS:  Why have they had—why are they having such a hard time? 

FILAN:  Well you know the defense is saying there‘s no direct evidence.  Guess what?  You don‘t need direct evidence.  Circumstantial evidence is every bit as good as direct evidence.  No DNA, well it‘s a cold case, it‘s over 23 years ago.  I think the jury is not going to necessarily expect what we call the CSI effect in the courtroom in this case, and it‘s one of those where who else could have done it. 

The problem is it‘s a priest and they would probably give him the benefit of the doubt except the victim is a nun and that‘s going to equalize that whole religious thing.  The problem for the prosecution isn‘t necessarily going to be the lack of direct evidence, it‘s going to be a juror‘s difficulty perhaps in convicting a priest. 

ABRAMS:  James, anything about the priest‘s background coming into the case? 

EWINGER:  Thus far, not really.  I mean they haven‘t put—they haven‘t opened the door on character at all.  And I‘m not sure how on point that would be anyway.  I mean the most stinging indictment I‘ve heard, if it can be called that, is that he was very quiet and reserved, and you know, not particularly demonstrative, but that does not make him a killer. 

KELLEY:  And indeed, if I can add...

ABRAMS:  Yes.

KELLEY:  ... this priest is absolutely beloved in the Toledo community and as you may know, Toledo has a huge Polish population, and Father Robinson has been known to say masses in Polish, as well as to hear confessions in Polish, and there‘s absolutely nothing aberrant about his background.

ABRAMS:  And James, how is that playing in the community?  I mean what is the sense in Toledo about this guy and the case? 

EWINGER:  Well, I went to a couple of masses in the Polish neighborhood on Easter Sunday in fact, and I spoke to people, and while—you know, they were fairly reticent to go on the record, many of them spoke well of him, those who knew him, and I know that some of the parishioners put up their homes to make the $400,000 bond, so I think Elizabeth is right.  I think that there is support for him. 

ABRAMS:  This is what Dr. Henry Lee said Thursday about the crime scene, saying could have been staged, but maybe not. 

(BEGIN VIDEO CLIP)

LEE:  You have some indication, could be a staged scene, and again, because the undergarment was removed, but based on autopsy report, laboratory report, no semen was found.  So this is a removal undergarment, I don‘t know.  It‘s not related to sexual assault.

(END VIDEO CLIP)

ABRAMS:  Right.  Real quick, Susan, the claim is that it was staged, right?  I mean that‘s the prosecution‘s theory is that someone tried to make it look like a sexual assault.

FILAN:  Yes, but I don‘t know how good a theory that is, because very often there‘s a sexual assault and there isn‘t any semen, so you can‘t rule out sexual assault in this case, and that may have been part of the motive.

ABRAMS:  Elizabeth Kelley, James Ewinger and Susan Filan thanks a lot. 

KELLEY:  Thank you.

ABRAMS:  Coming up, a lot of you writing in on the Duke rape investigation.  Many of you very suspicious of the accuser now that it‘s been revealed she filed a police report 10 years ago claiming she was raped by three other men.  Your e-mails are next.

(COMMERCIAL BREAK)

ABRAMS:  Now it‘s time for “Your Rebuttal”.  The alleged victim in the Duke rape case has accused three men of rape before.  In a report filed in 1996, the alleged victim claimed she was raped three years earlier when she was 14.  Two of the men from the ‘96 case were identified as black males and the third was not characterized.  None of the men named in the report was ever charged.  The case was dropped.

David Warheit in Stockton, California, “Did you notice the incredible coincidence?  Each time she was repeatedly raped by exactly three men.  Surely it‘s time for the D.A. to pack his bags.”

Tom in New Jersey, “Supporters of the alleged victim have said that if the accused rapists were African American then they would have been arrested immediately and thrown in jail, charged and prosecuted.  We now know that 10 years ago this did happen and the three African American alleged rapists were not arrested, not charged, and not prosecuted.”

The alleged victim‘s parents seem to offer up some conflicting statements about the case and whether the accuser will go forward and testify.  Chris in Tacoma, Washington, “I notice that you are relying on interviews by the father and mother of the accused.  It appears to me that neither has an obligation to be truthful to your reporters or those of other networks.”

That‘s true, Chris, but why would they lie?  How does that help them?  The question, though, is whether the accuser maybe is telling them different stories at different times. 

Jody Hoelle in Redlands, California echoes the view of the minority on my coverage.  “You‘re a terrible attorney and it‘s really quite surprising that MSNBC continues to have you on the air.”  Thank you, Jody.

But I have viewer counsel, attorney Michael Morelli in Tampa, Florida, “All those viewers that have made personal attacks on Mr. Abrams‘ character, in addition to his occupation of being an attorney and him being an alleged terrible attorney should be aware that they are bordering on civil litigation liability.  This case will either be dismissed if she decides not to pursue the claim or it will be resolved in a court of law.  Until then, keep your mouths shut about Mr. Abrams.  Excellent job on your unbiased coverage.”  My rebuttal attorney, Michael Morelli.

Your e-mails abramsreport—one word -- @msnbc.com.  We go through them at the end of the show.  We will be right back.

(COMMERCIAL BREAK)

ABRAMS:  That does it for us tonight.  Coming up next, “HARDBALL” with Chris Matthews.  Have a great weekend.  I‘m going to try to have one—

Friday.  See you next week.  Bye.

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

END   

Copy: Content and programming copyright 2006 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2006 Voxant, Inc. ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and Voxant, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

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