updated 5/2/2006 10:45:31 AM ET 2006-05-02T14:45:31

Guests: Raoul Felder, Lynn Gold Bicken, Eric Brunstad, Mark Edwards, Yale Galanter, John Burris, Michelle Suskauer

DAN ABRAMS, HOST:  Coming up, the former Playboy playmate Anna Nicole wins over the Supreme Court.  And the defense in the Duke lacrosse rape case asks, that the D.A. be thrown off the case.

The program about justice starts right now.

First up on the docket, Anna Nicole win at the U.S. Supreme Court.  The former Playmate, Anna Nicole smith, came to Washington to try to get a big piece of the multimillion-dollar estate of her late husband, J. Howard Marshall.  She was 26 when they married.  He was 89.  He died just over a year after the wedding. 

The battle is now between Anna Nicole and J. Howard‘s son, E. Pierce Marshall.  Pierce Marshall took the case to a Texas state court which effectively ruled Anna Nicole was an undeserving gold digger and actually ordered her to pay over $1 million in legal fees.  She told the court back in 2001, it‘s just really expensive being her!

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  How does one go about spending $5,000 a week in cash?  What do you do with it?

ANNA NICOLE SMITH, J. HOWARD MARSHALL‘S WIDOW:  Well, I‘m a very—how do I say this?  I would go to premiers like every week.  You have to buy a formal gown.  I mean, gowns are like, I mean, you buy gowns, they‘re like $30,000.  And you‘ve got to buy gowns.  You‘ve got to buy shoes.  You‘ve got to pay hair and make-up.  I mean, it is very expensive to be me. 

I mean, it‘s terrible. 

(END VIDEO CLIP)

ABRAMS:  But after she declared bankruptcy and mentioned that had she had evidence that Pierce Marshall had falsified documents and improperly tried to keep her out of the will, a federal district court ordered her $88 million.  Now in 2004, the Ninth Circuit Court of Appeals said no, that the state court ruling should stand and that Anna should get nothing. 

Today the U.S. Supreme Court unanimously overruled that Anna is back in business with a new shot at the cash. 

Joining me, divorce attorneys Raoul Felder and Lynn Gold Bicken.

Thanks a lot for coming on the program.  Appreciate it. 

LYNN GOLD BICKEN, DIVORCE ATTORNEY:  Thank you.

ABRAMS:  All right, Raoul.  How much is she going to get now?

RAOUL FELDER, DIVORCE ATTORNEY:  Well, we don‘t know.  And this may be only the first of one or two more stops of the U.S. Supreme Court.  You know, the history has more curves than Marilyn Monroe, the pretzel (ph). 

What happened here is she files for bankruptcy.  He decides to say, “Listen, I got defamation claims.  It‘s a willful tort.  It should survive bankruptcy.” 

She says, “Well, wait a second.  If you do, I have a claim for tocis (ph) interference.”  Now the bankruptcy judge hears it at a regular trial and sets almost $500 million.  They now go...

ABRAMS:  We get the procedural history.  Bottom line now is now it goes back to the federal court, and there are courts there awarded her $88 million.  But that‘s not set in stone, right?

FELDER:  No.  Because the question is, is what happened in bankruptcy court a court proceeding or was it not?  And sure as a cat has kittens, once the court of appeals decides whether it was a court proceeding or not, it‘s going to go to the Supreme Court again.

ABRAMS:  All right.  Just to make sure that everyone sticks around, here‘s what I‘m going to do.  Because this does get pretty technical.  So I‘m going to keep trying to intersperse into the conversation testimony from Anna Nicole during the trial.  Because that‘s interesting. 

FELDER:  Yes.

ABRAMS:  Now I find the rest of it interesting as a lawyer.  We all do.  But it can get pretty technical.  So here again, Anna Nicole. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Did you call him right before he died?

SIMPSON:  I didn‘t know when he died. 

UNIDENTIFIED MALE:  Did you call him right before he died?

SIMPSON:  I was in New York.  They called me and told me he died. 

UNIDENTIFIED MALE:  Yes, ma‘am.  Did you make a call to him the last few days of his life?

SIMPSON:  Yes, I sure did.  I get hung up on. 

UNIDENTIFIED MALE:  Are you aware he refused to talk to you?

SIMPSON:  Never.  Never.  You could never, never say that to me. 

(END VIDEO CLIP)

ABRAMS:  All right.  Lynn Gold Bicken, how much do you think she‘s going to end up getting?

BICKEN:  Well, in term of dollars?

ABRAMS:  Yes, dollars.

BICKEN:  I don‘t think that she‘s going to get a huge amount. 

ABRAMS:  Really?

BICKEN:  I don‘t think—no, I don‘t think so.  I don‘t think this win in the Supreme Court gives her money.  I think what it says is that the federal court can hear the case. 

ABRAMS:  Right.

BICKEN:  The big issue was just procedural.  This is not “she‘s going to get this money.”  She‘s going to have to prove that she was entitled to money even though the will didn‘t say she was entitled, even though there was no document. 

And when you think about it, we see cases all the time—I know Raoul does, too—where the kids are told they‘re going to inherit and then dad marries the 40-year younger person.  And all of a sudden, everything gets over to her.  And these kids don‘t have any right to go in there and say, “Oh, he meant to leave us the money.” 

ABRAMS:  I thought, Raoul, that the bankruptcy court seemed to agree with her about these allegations about the son, about the—trying to keep her out of the will, et cetera. 

FELDER:  Absolutely.  Agreed to her almost to the tune of $500 million. 

ABRAMS:  So why is it—why do we all keep saying again and again, you know, well, we don‘t know.  She may get nothing. 

FELDER:  No, no.

ABRAMS:  The U.S. Supreme Court is saying the federal—the bankruptcy court can hear a case like this.  The bankruptcy court did hear a case like this. 

BICKEN:  That‘s all they‘re entitled to do. 

(CROSSTALK)

ABRAMS:  The bankruptcy court awarded her an enormous amount of money. 

FELDER:  The only issue is was this—not to be technical—a court proceeding or not?  If it‘s a court proceeding, then she gets $500 million.  If it‘s not, she gets $88 million. 

BICKEN:  No, she does not.  They start all over again. 

FELDER:  The decisions then.

BICKEN:  No, the decision sends it back.  It only...

FELDER:  It sends it back.

BICKEN:  I‘ve got it in front of me.  The decision sends it back. 

FELDER:  Right.

BICKEN:  And they start again.  But why in the world for a 14-month marriage would this woman who—let me tell you something. 

FELDER:  That‘s another battle. 

ABRAMS:  Hang on a second.  It‘s worth something.  You know, I mean, look, the guy was rich and everything, but he was 89 and 90, and she was 26.  That‘s worth something.

BICKEN:  What are we going to give this woman for kissing a dead guy for 14 months?  That‘s what we‘re talking about.

ABRAMS:  All right.  I don‘t know.  I don‘t know what the...

BICKEN:  For goodness sakes.

FELDER:  I know—I know one court said $88 million.  One said almost $500 million.  It‘s going to be one or the other, definitely. 

BICKEN:  I don‘t think so.  I think they‘re going to start again because I think the son has got a right to prove that he...

FELDER:  He did.  He lost. 

BICKEN:  No, I don‘t think so.  I think this case is going to get tried all over again. 

ABRAMS:  All right.  As we discussed the legal again, we take a break to go back to Anna Nicole during the state trial. 

(BEGIN VIDEO CLIP)

SIMPSON:  He loved me unconditionally.  My husband loved me. 

UNIDENTIFIED MALE:  I thought you didn‘t want...

SIMPSON:  Pierce Marshall took my husband away from me and let him die. 

UNIDENTIFIED MALE:  Ma‘am.  We‘re going to get...

(END VIDEO CLIP)

ABRAMS:  Raoul, if you‘re putting a number, it sounds like you think it will go back to about $88 million?

FELDER:  That‘s the least it could be, as I read the decision.  The most it could be, if they say bankruptcy court had what they call authority, it will be $500 million.  But it ain‘t going to be tried all over again.  She said—everybody had their day in court, as far as the facts are concerned. 

ABRAMS:  All right.  Raoul and Lynn Gold Bicken, thanks a lot.  Someone I know is going to disagree with you, Raoul.  It‘s Eric Brunstad, the attorney for the E. Pierce Marshall.  He joins us now. 

Thanks a lot for coming on the program.  We appreciate it. 

ERIC BRUNSTAD, ATTORNEY FOR E. PIERCE MARSHALL:  Thank you.

ABRAMS:  So I know your position is that this was just a technical ruling.  It‘s no big deal.  The bottom line is you did have one court saying she gets nothing.  Another court said she gets a lot of money.  The U.S. Supreme Court is saying the court that says she gets a lot of money gets to decide.  That‘s not a good ruling for you, is it?

BRUNSTAD:  Well, we‘re very disappointed with the ruling.  I think anybody in our position would be.  But recall a couple of things.  During his life, J. Howard gave her between $6 million and $8 million worth of property. 

And in this particular ruling, at the end of the opinion, you‘ll see the Supreme Court said go back to the Ninth Circuit.  And the Ninth Circuit now has to decide a bunch of other issues. 

One of the other issues that has to be decided that we argued to the Ninth Circuit is, look.  All of these allegations that she raised against my client were conclusively resolved in a five and a half month jury trial in Texas probate court.  That is binding.  That is...

ABRAMS:  That the one we‘ve been showing from, right?  The one that was televised?  Where she really didn‘t help herself by testifying, right?

BRUNSTAD:  Correct.  The jury rejected all of her claims and allegations.  May client didn‘t do any of the things that she alleges. 

ABRAMS:  But didn‘t the bankruptcy court effectively find that your client did?

BRUNSTAD:  Yes, after, you know, five days worth of hearings, versus a five and a half month jury trial in the Texas probate court.  My client was not allowed to put on this case, put on his witnesses, et cetera.  And the bankruptcy court decision was vacated.  So it really is no more. 

What the Ninth Circuit is being directed to address in—by the Supreme Court‘s decision today, is this issue of preclusion.  We had a final—a final judgment from the Texas probate court after a five and a half month jury trial, completely vindicating my client.  Is that binding on the federal courts?  Our position is that yes, it is.  And hopefully the Ninth Circuit will agree with us and put an end to 11 years of litigation. 

ABRAMS:  Wait a second.  But the U.S. Supreme Court has already—has already ruled, right, that if—that the state court doesn‘t necessarily have the final say here? 

BRUNSTAD:  Well, what the Supreme Court ruled is, very narrowly, that federal courts have jurisdiction to hear these kinds of claims  The Supreme Court did not rule on the other arguments that we have, such as that the fact that another court, the state court has ruled already, is binding.  Specifically left for the Ninth Circuit court. 

ABRAMS:  So bottom line, you think that, in the end, she‘s going to end up with nothing?  Because I think she is going to end up with a substantial amount. 

BRUNSTAD:  We think that she is not entitled to anything more than J.  Howard gave her.  In fact, his estate plan is crystal clear.  The Texas jury verdict is binding and was a complete proceeding.  And we are hopeful that the Ninth Circuit will agree with us and put an end to 11 years of litigation that really shouldn‘t have happened.

ABRAMS:  All right.  Well, we shall see.  Eric Brunstad, thanks a lot for coming back. 

BRUNSTAD:  Thank you.

ABRAMS:  Coming up, the attorneys for two Duke lacrosse players accused of raping a stripper ask a court to kick the D.A. off the case.  The motions have just been filed.  We‘ve got the details.

Plus, there are new surveillance pictures from an ATM that the defense says will prove one of the players has an air-tight alibi. 

And later, Rush Limbaugh said the government never had a good case against him.  That‘s why he settled.  Some asking then, why did he plead at all?  Send a note to AbramsReport@MSNBC.com with your name, where you‘re writing from.  Our response later in the show (ph).

(COMMERCIAL BREAK)

ABRAMS:  This is it.  The proof that Duke lacrosse player Reade Seligmann‘s attorney says proved Seligmann did not rape an exotic dancer at an off campus party in March.  These pictures presumably show Seligmann at a nearby ATM at around the time the alleged victim says she was being raped by Seligmann, Collin Finnerty and another Duke lacrosse player. 

We‘re going to talk about these pictures in a minute.  But first some other big news coming out of Durham, North Carolina. 

Seligmann‘s attorney is asking if the accuser‘s identification of Seligmann in a lineup be thrown out and the D.A. be tossed from the case.  Attorney Kirk Osborn saying about the D.A., quote, “Mike Nifong neglected his duties as a prosecutor to seek the truth and a fair prosecution.  He created an actual conflict between his professional duty to search for the truth and his personal, vested interest in getting elected.”

Osborn says D.A. Nifong did this by ignoring the facts which demonstrated Seligmann could not have committed the crime.  By “making statements to the national media to bolster his election chances while prejudicing the case, by denying Seligmann a probable cause hearing where his innocence could have been shown and the deficiencies in the evidence would have been exposed and by improperly injecting himself into the photo lineup to gain information to indict any Duke lacrosse players.”

Are they really going to be able to get rid of the D.A.?

Joining me now, former prosecutor, MSNBC legal analyst Susan Filan; criminal defense attorney Yale Galanter; former prosecutor John Burris; and the North Carolina defense attorney Mark Edwards. 

All right, Mark, you‘re our North Carolina guy.  Let me start with you.  Look, no matter what you think about what the D.A. has said or done, this is a long shot motion, right?

MARK EDWARDS, NORTH CAROLINA DEFENSE ATTORNEY:  Very long shot, Dan.  I like the notion and I think, in part, it may have been filed to also get this information about their client‘s innocence out to the potential jury pool again.  And if that was the real motive, I think I may have waited a little bit closer to the trial time to follow that. 

But it‘s a creative motion.  I like it.  But I don‘t think it‘s going to go very far. 

ABRAMS:  Yale, I mean, look, the defense team wants to make a point.  It‘s clear they don‘t like the way the D.A. has acted.  But the chances of getting the D.A. thrown off the case by a judge, that‘s a long shot. 

YALE GALANTER, CRIMINAL DEFENSE ATTORNEY:  Yes.  I mean, the shot of this motion being granted is somewhere between slim and none.

I disagree with Mark.  I don‘t like the motion.  In part, frankly, the reason I don‘t like the motion is because it‘s couched improperly.  This should have been couched as a motion to dismiss for prosecutorial misconduct.  The remedy for prosecutorial misconduct is not throwing a D.A.  off the case.  The remedy in a court of law is dismissal of a charges or and collusion of evidence. 

And that‘s why I don‘t like it.  I mean, legally it‘s just not well founded.  It‘s not based on a real conflict.  It‘s based—you know, it‘s articulate and it‘s creative.  But it‘s just not well couched in law.  It should be a motion to dismiss for prosecutorial misconduct, because the facts are laid out as if it‘s a misconduct motion. 

ABRAMS:  Well, there are four things mentioned and it seems to me, Susan, only one of them has any real meat to it.  And that is the last one.  “In his zeal to push this case forward and claim the national spotlight, D.A. Nifong improperly injected himself into the photographic lineup proceedings.  He proposed the investigators put together mug shot photographs into a group of only members of the Duke lacrosse team.”

Now, they‘ve got a separate motion to get that thrown out, but they‘re saying by him going there...

SUSAN FILAN, MSNBC LEGAL ANALYST:  Right.

ABRAMS:  ... and instructing them, he was injecting himself improperly. 

FILAN:  Really what they‘re saying is that now he‘s going to be a potential witness.  If you‘re a potential witness in your own case, you have to be recused, because you can‘t be doing the examination and then jump up on the witness stand and examine or cross examine yourself. 

That‘s still not going to win.  What it‘s going to help them on their other motion to suppress the I.D., but it‘s not going to help on this. 

What I think this is, it‘s what we call a speaking motion.  They‘re just getting a lot of information out to the public.  And I don‘t think it‘s necessarily to get the jury‘s attention on this.  It is the electors.  Election day is tomorrow.  So if you think your D.A. is doing a rotten job, because he did all these, quote unquote, “bad things,” hear about it today, May 1, and don‘t vote for him tomorrow. 

ABRAMS:  All right.  John Burris, go ahead.  Do you want to comment?

JOHN BURRIS, FORMER PROSECUTOR:  Yes.  I don‘t think that this effort itself will get the D.A. kicked off the case.  I really think that it‘s obviously politically motivated.  In a sense, there‘s a greater audience here.  There‘s a public audience they‘re trying to get at.  But I don‘t think that it has the kind of fire. 

I do wonder about the suggestibility of the D.A. being involved in a lineup.  Now just because he‘s there, that doesn‘t mean he has the right to testify, to examine him, if there were other people who were independently who were placed there, such as an investigator or a police officer. 

But notwithstanding that, he probably should not be that actively involved.  This whole case is going to turn on the suggestibility of the I.D. anyway.  It‘s an I.D. case, straight up.  So I think that the less—more impartially he is in terms of how that process is put together, the better off he is.  The motion has no chance of—of... 

ABRAMS:  All right.  It‘s clearly, so everyone agrees—let‘s go around and make sure that everyone agrees.  Yale, the D.A. is not getting dismissed based on this motion, right?

GALANTER:  Not a prayer or a shot. 

ABRAMS:  Mark Edwards?

EDWARDS:  Not dismissed. 

ABRAMS:  John?

BURRIS:  No chance. 

ABRAMS:  Susan?

FILAN:  No way. 

ABRAMS:  All right.  So let‘s move on to the more substantive issue. 

And that is, whether they‘ll be able to get this identification thrown out.  And again, if they get this I.D. thrown out, the alleged victim coming forward and saying, it was Seligmann and it was Finnerty, this case is basically done. 

Now, the Durham Police Department guidelines, the defense team points this out.  “The Durham Police Department calls for an independent administrator and requires five fillers per suspect.”

What does that mean?

FILAN:  Well, a filler is somebody that couldn‘t possibly have done it, like you, for example, or a policeman, for example.  To show that you‘re not just putting up people that are actually potential defendants.  You put the fillers in, people who couldn‘t have possibly done it to make it extremely fair. 

And also to test the credibility of the victim.  Because is she picks, for example, President Bush, you know she‘s got no ability to recall or to visualize or something‘s impaired with her credibility. 

ABRAMS:  And the North Carolina guidelines they say is set by the North Carolina Actual Innocence Commission.  It‘s an independent administrator, not the primary investigator should be there.  The accuser be instructed the suspect may or may not be in the lineup.  And a minimum of seven fillers per suspect.  Fillers should resemble witness‘ description of perpetrators.

Again, these are not legal requirements, John.  But this is a persuasive case being made by the defense team that they should have at least put someone who‘s not a Duke lacrosse player in these pictures. 

BURRIS:  Well, certainly I could argue this motion on suggestibility.  That is one of the real issues in criminal law where people are misidentified. 

However, in this particular case, you do, given that she said it was three people involved, you do have 45 other people who were not involved.  And so you do, in many ways—you could meet this particular test.  It‘s sort of not the best possible way. 

But given the way the case was going, and you don‘t know who‘s involved.  He‘s trying to get it done.  I don‘t find that impermissible and unduly suggestive.

ABRAMS:  Really?

BURRIS:  That‘s just not the way it‘s normally done. 

ABRAMS:  Mark Edwards, our North Carolina guy, do you think it‘s going to get—the I.D.‘s going to get chucked?

EDWARDS:  I think the I.D., there is a chance that the I.D. may get chucked.  It doesn‘t kill the case, though.  There‘s a much higher standard to preclude the accuser from testifying in trial as to the identity.  So there‘s a chance the court could kick the photo I.D.  She would still be allowed to come in the court and testify from her observations in court that she could identify them then.  So it doesn‘t kill the case.  It makes it much weaker, but it doesn‘t kill it. 

ABRAMS:  Wouldn‘t they be able to then use that against her in cross-examination?  I mean, let‘s assume for a minute that what you‘re saying happens.  All right?  Let‘s say her identification of Collin Finnerty and Reade Seligmann, from these, from these—from this photo lineup gets thrown out.  And the reason it would have been thrown out is because it was too suggestive.  Right?

So there she is in court. 

EDWARDS:  Right.

ABRAMS:  And she says, “Yes.  It‘s the guy sitting at the defense table.  He‘s the one who did it.  And yes, the other guy sitting at the defense table, he‘s the one who did it.”

I mean, you‘re going to have a lot of opportunity to go after her about that.  Right?

EDWARDS:  It creates a weird situation, where—where the defense tries to preclude the testimony and then may try to preclude the prior I.D.  And then they want to actually use it during the cross-examination.  So they bring out the fact that this was the process that was used. 

So it‘s one of the quandaries that we have from the defense side.  You sometimes may be able to preclude evidence.  And then you use it in your cross-examination. 

FILAN:  But Dan, what this motion‘s also calling for is suppressing not just the I.D. but the fruit of the poisonous tree, meaning any time you use an I.D. that‘s impermissible or unduly suggestive, and then you arrest these guys and have them sitting at the defense table.  So who else are you going to identify?  They‘re saying suppress it all.  And then it may be game over. 

ABRAMS:  Mark, you don‘t disagree with that?

EDWARDS:  They actually have a shot.

(CROSSTALK)

ABRAMS:  Hang on.  Sorry, Mark Edwards.

EDWARDS:  The legal standard—the legal standard to keep out an in court I.D. is that the prior I.D. process was so impermissibly suggestive that it leads to an irreparable possibility of misidentification.  That—

I‘ve never heard of anyone meeting that standard.  I don‘t know of any case where it‘s ever been met.  It‘s going to be very difficult to meet that high a legal standard. 

ABRAMS:  John, I‘m sorry.  Go ahead.

BURRIS:  I was going to say, it‘s possible that the court will not allow for an in-court identification.  When—when you have a situation that is so suggestible, that it will taint it.  The fruit of the poisonous tree.  I can see where that—to not have.

For practical reasons, as a prosecutor, if that—if that investigation, the I.D. lineup is thrown out, I‘d have a hard time wanting to go forward unless I have some other kind of evidence that tie these people in.  I wouldn‘t rely upon an in-court identification at this time, because you‘re going to get trashed and turned to cross examination. 

ABRAMS:  Yale, go ahead.  Do you want to jump in?

GALANTER:  Yes.  The reason this I.D. is so bad, and it may be the fruit of a poisonous tree, is because when she was told to pick the people who did it, she had to pick a Duke lacrosse player.  There was nobody else in the photo display.  And that‘s why it‘s so suggestive. 

FILAN:  It‘s a multiple choice...

GALANTER:  And that‘s why—she had to have...

(CROSSTALK)

ABRAMS:  Susan just said it‘s a multiple choice with no wrong answer. 

GALANTER:  Exactly.  And Susan is right. 

ABRAMS:  Let me just read again. 

BURRIS:  You can have some wrong answers there.  After all, there‘s 46 people there. 

GALANTER:  But they were all Duke lacrosse players.  That‘s the problem.  There were no fillers.

FILAN:  It‘s a multiple choice exam with no wrong answer, because everybody she identified is going to be a Duke lacrosse player. 

BURRIS:  You‘re right. 

ABRAMS:  John.  All right.  Everyone agrees with that.  So bottom line, you know, we‘ve got the next segment.  I want to save some of this other stuff for the next segment.  But bottom line, Susan, do you think that they‘re going to throw out the I.D.?

FILAN:  They might.  They just might.  You know, we‘ve got to hear from the D.A.  We‘ve got to hear from his witnesses.  We‘ve got to see if he can...

ABRAMS:  John, you think they‘re going to throw out the I.D.?

BURRIS:  No, I don‘t think they will.  And I don‘t think the D.A. is controlling on this point. 

ABRAMS:  Yale, do you think they‘re going to throw out the I.D.?

GALANTER:  Yes.  This is—Dan, this is one of the most suggestive photo lineups I‘ve ever seen. 

ABRAMS:  Mark, the North Carolina man.  Are they going to throw out the I.D.?

EDWARDS:  I think it‘s a close call, but I‘m the ultimate pessimist. 

I think it‘s going to come in. 

ABRAMS:  All right.  Panel‘s going to stick around, because coming up, finally, we get to see the time-stamped surveillance photos from an ATM that appear to show Duke lacrosse player Reade Seligmann nowhere near the house when the alleged gang rape supposedly took place.  Will that clear him?

And later, Rush Limbaugh strikes a deal with prosecutors.  His case goes away if he continues with rehab.  How good a deal did he get? 

(COMMERCIAL BREAK)

ABRAMS:  We have finally gotten those pictures from an ATM surveillance pictures the defense says will prove one of the Duke lacrosse players has an airtight alibi.  First the headlines.

(NEWSBREAK)

ABRAMS: We have just gotten in these surveillance photos from an ATM at 12:24 a.m. on March 14 in Durham, North Carolina.  If you‘ve been following this case, you know why these are considered so important in the context of the Duke lacrosse rape investigation.  That is Reade Seligmann taking money out from an ATM.  His lawyers say this proves he could not have committed the crime, a crime they say must have occurred right around this time.  The defense has just submitted these as part of a motion, part of a motion that includes trying to get the DA kicked off the case, saying he wouldn‘t even look at our pictures.  And also, new allegations surfacing that the accuser once said her husband took her into the woods and threatened to kill her, but then later failed to appear at a hearing on the case, leading to the charges being dropped.  They say that poses new questions about her credibility.  Their point, that this case never should have gone to trial at all.  All right Susan, we heard about these.  We‘ve seen the transaction receipts.  Is this helpful to the defense? 

FILAN: It is helpful to the defense if you concede the defense‘s time on it.  The defense has a witness, a neighbor who was out on his porch.  He said he looked at his cell phone at exactly 12:00, seeing the girls get out of the car and go into the house.  If that‘s true and Reade Seligmann leaves at 12:14 because the cab driver says he gets a call at 12:14, shows up three minutes later, and then goes to the ATM. The window for this to occurred if Reade is to have done it is between 12:00, 12:05 and 12:14. 

ABRAMS: They don‘t just have that.  But they don‘t just have that John Burris. They also have, they‘ve got the witness who is the neighbor and they‘ve also got the time stamped photos that they say are corroborated by watches that you can see in the photos.  So in terms of the time line, the prosecutors really may have a problem with regard to Reade Seligmann. 

BURRIS: I was always troubled by that in terms of that.  I think that the prosecution, for whatever reason they chose not to look at this evidence, they really should look at this evidence now to see how it really does square up with the, how they viewed the time line. 

ABRAMS: It is so hard for a prosecutor, I think Susan, to come back and say, mea culpa.  In a case like this, can the prosecutor ever say, I should have looked at this. 

FILAN: There‘s no easier thing as a prosecutor than to do the right thing.  That‘s your job.  If things change in your case, say so.  If your evidence—if your witnesses change their story, admit it.  It is not hard to do the right thing.  It is actually a lot harder to keep going with something that stinks. 

BURRIS: It‘s better now than later. 

ABRAMS:  Look John.  You‘ve been sort of on the pro prosecution side in terms of this investigation.  Do you think they should drop the charges against Reade Seligmann?

BURRIS: I would say this.  If the prosecution has this problem with this identification, because of the time line, I would recommend dropping the charges.  I don‘t think you should go forward in an extraordinarily weak case or a case where you don‘t really have solid evidence.  Otherwise, it will hurt whatever other aspect of the cases you have. 

ABRAMS:  The problem is, I think, Mark Edwards, if the case against Seligmann dies, this case dies.  And the reason, I‘ll tell you why.  She said she is 100 percent certain it was Reade Seligmann.  If she‘s 100 percent wrong, this case is 100 percent over. 

EDWARDS: Mark, I think you have a good argument.  It would be a good jury point.  One of the problems that the prosecutor has in deciding whether or not to dismiss the case against Reade, is if they try these cases together, Collin‘s attorneys is going to want these cases tried together because if there is a stronger case against him, they want to piggy back on Reade‘s case.  I think it would strengthen the prosecutors‘ case to dismiss Reade‘s case and go with Collin Finnerty alone.  And then they still have a little bit of this problem but it‘s not as much as they do if they try these kids together. 

ABRAMS:  Susan (INAUDIBLE)

FILAN: No, I think that‘s a suicidal move as a prosecutor because if I were a defense lawyer, I would certainly bring that in.  I‘d bring the police, did you arrest somebody else? And was there an identification and was it 100 percent wrong? I think that would be.

ABRAMS:  It sounds like the prosecutors are going to say, well, we don‘t know for sure what time it started.  I mean we think that maybe they got there at 11:30 and that‘s a result. 

BURRIS: That‘s a different argument though. That‘s different. 

ABRAMS:  I understand it is a different argument but it is also a very difficult argument. 

GALANTER: Dan, the problem that Nifong has today and for the next two or three weeks, is the election‘s tomorrow.  If he makes it past this primary election, he‘s got the general election. He is certainly not going to dismiss it before that because most of the moves he‘s made up until this point have been political.  When you take the bank records, the cell phone records, the cab driver records, the eyewitnesses, I mean, literally, the time line for him to have been involved in any type of criminal activity is down to two or three minutes.  We now know that he was talking to his girlfriend during that time.  So he should drop it.  He probably will drop it.  But it is not going to happen if it has any effect on his political career.  He is going to try and delay it as long as possible. 

BURRIS: Given the race, class issues here is how (ph) going to have an impact on his career one way or the other.  I don‘t see how he could possibly—I agree with you that it will be unlikely for him to dismiss it, even though it might be the right thing to do before the general election takes place. 

EDWARDS: Well, let me make one point. Whoever wins the primary tomorrow winds the election. There is no Republican candidate.  All the candidates are Democratic.  So if he wins the primary tomorrow, the general election is over.

ABRAMS:  Mark, Mark, Mark, Mark, take this hypothetical, right.  He wins the primary.  He drops the case against Reade Seligmann.  Low and behold, could a Republican show up legally and make it under the ballot?

EDWARDS: That I don‘t know.  I think it would be difficult.  I don‘t think a Republican could.  You could see someone trying to write a, mount a write-in campaign but I really don‘t see that happening. 

BURRIS: I understand you have to have a certain percentage even on the Democratic primary.  If you don‘t get 40 percent, you could very well have a run-off there and if that‘s true... 

ABRAMS:  He‘s going to end up in a run off tomorrow if he doesn‘t carry the day. 

FILAN: The only problem -

ABRAMS:  Susan, let me ask a second.  You have been a sort of a prosecutionesque voice, not always but in this case.  You‘re looking at those surveillance photos and saying, it sounds like you‘re saying, I don‘t know what they‘re going to be able to do in this case. 

FILAN: What I am, I‘m the voice of reason.  I‘m the voice of fairness.  But I got to tell you, I don‘t understand why he didn‘t look at this stuff ahead of time.  I think he had a duty to do that.  I don‘t know what he‘s going to do with these photos.  But here‘s the real thing.  We don‘t know what he‘s got.  He isn‘t talking.  Does he have a smoking gun? Does he have something he hasn‘t disclosed?  Are we all thinking we‘re so smart and clever because looking at what the defense has put forward, it looks pretty intimidating. But does he have something.   There‘s two sides to every story.  We have to give him his due.  But I got to tell you, looking at what I‘ve seen so far, I used to say (ph) I‘d take three steps back.  I would take 300 steps back now. 

ABRAMS: And if the case against Reade Seligmann went away, do you think the whole case.

FILAN: I don‘t see how you could go forward against Collin Finnerty once you‘ve lost Reade Seligmann, again, because as a defense lawyer, you‘re going to bring in all that good stuff that made you throw out Reade‘s case and say, if you doubted her on Reade, how can you trust her on Collin?

UNIDENTIFIED MALE: (INAUDIBLE) It is over once he drops that case. 

ABRAMS: What‘s that Yale?

GALANTER: Whatever credibility she had, which isn‘t much, but whatever she had going for her, is absolutely out the window once the prosecutor admits that—

BURRIS: I don‘t think - (INAUDIBLE) have that credibility. (INAUDIBLE) put her through this.  If you don‘t have more evidence against the other person than you have against this one, I don‘t think you put her through this.  I just don‘t.

ABRAMS: I will say that unless they have one of those players, at least one of them who‘s going to come forward and say that something happened, that they saw X, Y, and A, I don‘t see where they go... 

FILAN: And now here‘s the problem.  Let‘s say they have the perfect eyewitness.  How does this perfect eyewitness rebut this other.

ABRAMS: I don‘t know.  I‘m just saying that without that, what they have is the medical records.  And they have, is her testimony. 

FILAN: We‘ve got to see those medical records.  Can you get those? 

GALANTER: They need an insider Dan to put this together for them. 

Otherwise, it is a sinking ship. 

ABRAMS: Real quick, they make issues about the complainant‘s

credibility.  She made an accusation similar to the case. She was requested

to provide the investigating officer a statement and she failed to provide

that the case about the other three men she said raped her in ‘96. She stated under oath in ‘98 that her husband took her into the woods and threatened to kill her. She failed to appear at a hearing to prove her allegations and the matter was dismissed. Either of these Mark Edwards under North Carolina law particularly relevant in the case?

EDWARD: I think there is a chance the more of them there are, I think there‘s a better chance they all come in when we had the other issue last week.  I think I said then it depends on the reason that case was dismissed.  But if you‘ve now got another situation where it sounds like something very similar occurred, I think there is a better chance that all of them will come. 

BURRIS: I don‘t think the husband one comes in at all. 

FILAN: I think it will because the next line in that report says, and this was determine to be a false allegation.  If you can show a pattern of false allegations, that is fair ground for cross-examination. 

ABRAMS:  I got to tell you, I think that the DA needs to explain this case a little bit better.  I know that DA‘s like to keep things close to the vest.  And I understand that.  But in the context of the case like this, where it is so emotionally charged, with all the issues associated with this case, I think if the DA has something else, I think he should come forward again.  I invite DA Nifong on the program to tell us what it is he has, to explain to us, what it is that we‘re getting wrong with regard to the Reade Seligmann case.  We‘d love to hear from you. Mr.  Nifong, he‘s been on the program before. I hope he returns. Yale Galanter, John Burris, Mark Edwards, thanks a lot. 

Coming up, Rush Limbaugh‘s comments about his plea deal.  Did he get a sweetheart deal? Our panel debates next. And late a lot of you still writing in about our coverage of the Duke lacrosse rape investigation saying that my being an alumnus of the school impacting the coverage.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

RUSH LIMBAUGH:  The sum total of all of this is the case is over and the operative words that everybody needs to understand here are not guilty.  Not guilty. 

(END VIDEO CLIP)

ABRAMS: Rush Limbaugh in his radio show today seeming to savor the moment as he announced his legal problems were over.  The boss (ph) smiled for his mug shot on Friday.  His lawyer Roy Black of the Palm Beach state‘s attorneys‘ office reached a deal that will end the 2 ½ year investigation into allegations Limbaugh got over lapping prescriptions from different doctors to get pain pills, a process called doctor shopping.  Limbaugh says he‘s undergone random drug testing the past two and half years and hasn‘t craved a pain pill since he first entered rehab. So why did he cut the deal if he did nothing wrong?

(BEGIN VIDEO CLIP)

LIMBAUGH: From my point of view, the end result will be as if I had gone to court and won but the matter is concluded much sooner and much less expense for both me and for the public. 

(END VIDEO CLIP)

ABRAMS: (INAUDIBLE) Rush. Here‘s his attorney Roy Black. 

(BEGIN VIDEO CLIP)

ROY BLACK: Rush would enter a pretrial intervention program.  He would continue with his treatment for 18 months.  And at the end of 18 months, the case that has been filed against him will be dismissed.  Then the case will either be sealed or expunged.  He will not have any criminal record and he will stand as if nothing had ever occurred with the criminal justice system. 

(END VIDEO CLIP)

ABRAMS:  It sure sounds like a great deal for Rush Limbaugh (INAUDIBLE) MSNBC legal analyst Susan Filan and criminal defense attorney Michelle Suskauer. Susan, a great deal?

FILAN: Oh, it‘s an incredible deal.  I mean these pretrial diversion programs are sort of get out of jail free cards. What it basically says is, you stay out of trouble for 18 months.  We‘ll dismiss the charges.  You don‘t have to plead guilty.  It‘s as if it never happened. But somebody who did nothing wrong isn‘t going to enter this kind of a program.  We give these programs out, depending on the seriousness of the crime. I don‘t see how you can argue this isn‘t a serious crime.  He‘s charged with actually getting 40 pills in a month.  But he got 4,000. I don‘t know why the prosecution didn‘t go ahead and prosecute this to the fullest extent of the evidence that they had. Yeah, it‘s a real sweetheart deal.  It sends a message, if you‘re famous, if you‘re in the public eye and do you something wrong, don‘t worry about it.  But to the rest of the people who go through the system, would they have gotten the deal? That‘s the question. Is it fair? There‘s a perception out there that it isn‘t.  It is unequal justice. 

ABRAMS:  Michelle, you‘re there in Florida.  Is it fair?

MICHELLE SUSKAUER, DEFENSE ATTORNEY: I think end result wise, I think it is fair in terms of the fact that he is a first time offender, that this is a nonviolent drug case.  But he got some very special perks that your normal John Smith wouldn‘t have gotten.  He got in and out of custody I believe in 45 minutes.  He may have even and I‘m not sure, had his attorney there holding his hand the whole time.  And he never has to appear in court.  He was able to do this with his attorney just filing this document right away. 

Plus, he never even has to go into the pretrial intervention assets like everyone else has to do.  He can do this by mail.  So yes, I mean, I think there is a perception he got some special treatment. 

ABRAMS:  Here‘s what I think is still confusing about this case and that is that you heard Rush saying there again, he is not guilty, not guilty, not guilty.  He pled not guilty.  Here‘s what he said about this and then Michelle, I want you to explain this to us.

SUSKAUER: Sure.

(BEGIN VIDEO CLIP)

LIMBAUGH:  I have maintained from the start of this folks that there was no doctor shopping.  I continue to hold this position formally.  We have filed with the court a plea of not guilty to a single charge of doctor shopping that the state attorney‘s office has filed. 

(END VIDEO CLIP)

ABRAMS: So wait. How does that work Michelle? If this is a plea agreement, how can he say that he is pleading not guilty to the doctor shopping?

SUSKAUER: What he did was, when he was booked into the jail on Friday, he self surrendered.  His attorney filed just a regular forum, waiver of arraignment and entering a plea of not guilty.  But that‘s moot starting today when he entered into this pretrial intervention agreement because basically, what he did was he entered a best interest plea, not an official plea. 

ABRAMS: What does that mean?

SUSKAUER: Not an official plea before the court, but in the contract.  So it doesn‘t really matter. It is just semantics that he said it‘s not guilty. He can jump and down all he wants and say it‘s not guilty, but he is accepting responsibility for committing this crime.

ABRAMS:  But he‘s not. Does it matter Susan that he‘s on the radio publicly saying I am not accepting responsibility for this?

FILAN: I think there is a technical glitch here in our understanding.  I think what he is doing is he‘s pleading not guilty.  It will go 18 months.  If he stays out of trouble, the prosecution‘s going to dismiss.  So maybe he never actually has to go into court and plead guilty.  But he is acting guilty by saying, OK, I‘ll go into the program. OK, I‘ll go into the treatment.  OK, I‘ll go beyond special eggshell probation for 18 months.  And yeah, I think it is a real shame that the public is going to be misled by this deal.  I think it is unfair. 

ABRAMS:  Misled in what sense?

FILAN: Well first of all, we‘re not really sure.

ABRAMS:  Because look, the bottom line is after 18 months, this goes away.  Is it really being misled? I mean the bottom line is that if he doesn‘t do anything wrong in the next 18 months, this is going away. 

FILAN: Yeah, it‘s going to go away.  If he doesn‘t do anything wrong in 18 months, it is going to be dismissed. It‘s going to be expunged from his record.  I‘m sure Roy Black is going to do a great job at doing the next to impossible, which is getting his fingerprints removed from the AFIS (ph) database, getting his mug shot removed from the computer database which is really hard to do.  I‘m sure Roy Black will do it for his client.  But I think that this perception of special treatment for him frankly stinks.  And I think, I‘m worried about the message it sends to the public. 

ABRAMS: But I mean isn‘t there an argument to be made? Go ahead Michelle, go ahead.

SUSKAUER: No.  I totally agree with Susan.  I really think there is—ultimately, the deal itself, it is not unusual and the deal is not a special treatment case.  I really don‘t believe that.  But the way that he was able to just glide through the whole booking process and the way that he has gotten these special perks.  That‘s what people are going to remember.  They‘re going to say, look, this guy fought it from the beginning.  Now the witnesses have gone away and it is because he has money and it‘s because of who he is.  That‘s why he is getting what he is. 

ABRAMS:  Is it possible that he wouldn‘t have been prosecuted, that they wouldn‘t have spent this much time and effort on the investigation, had he not been Rush Limbaugh?

SUSKAUER: No. I really don‘t agree with that because practicing down here, you have the enormous amount of pills he had.  If he was just regular Joe Blow, he still would have been prosecuted.  And he was initially offered three years probation with no conviction.  Ultimately, it would have been the same result because he still could have gotten his case sealed and expunged.  But a lot of things have happened in the last 2 ½ years I think to make this case go away. 

ABRAMS:  And away it will go, particularly after 18 months.  It sounds like this is going to be a clean record.  Susan and Michelle, thanks a lot, appreciate it. 

Coming up, last week, I said DA Nifong took a cheap shot at Duke by suggesting that rape is a particular problem at Duke.  I said as an alum, I found the comment offensive.  Many of you writing in finding as always, me offensive, coming up.

(COMMERCIAL BREAK)

ABRAMS:  Now it‘s time for your rebuttal. On Friday, new details about the alleged victim in the Duke rape case.  A police report from 10 years ago stated that she reported being raped by three other men.  The case never went forward.

Ginny in Lebanon, Pennsylvania, as a survivor, I can certainly understand why the victim did not pursue her rape from 10 years ago. I was being threatened with a knife. After it was over and told that I would be sorry if I reported it or told anyone.

Duke alum Ellen Birch in Landsdown, Virginia. I was attacked while walking from east to west campus but I don‘t run around acting like every male from Duke did this to me. I feel that the behavior by this accuser will make it that much harder for rape victims to come forward. I fear for myself and my daughters.

Debbie in New York, it proves nothing to diminish her credibility.  It only means that she‘s a trusting person who gets victimized easily.

DA Nifong said he has received letters from many victims of sexual assault, including two former Duke students who chose not to report he said because they believe quote, the cost of the public scorn outweighed the benefit of pursuing justice.  I said that as a Duke grad, I thought it was a cheap shot at Duke, that sexual assault on campus is a nationwide issue, not a problem in particular to Duke. From New York City, John Starzyk. I believe you are correct in saying that Nifong‘s comments are meant as a cheap shot at Duke. The fact is that one in four women experienced an attempted rape or sexual assault while attending college. The problem should be addressed nationally and localizing it to Duke University is an injustice.

Sunny writes, the DA‘s comments were hardly an attack on Duke as an institution. Of course it happens on campuses across the country Dan, but the media isn‘t covering those cases and DA Nifong isn‘t involved in those cases.

From Philadelphia, Justin Watts, you‘re absolutely right about the cheap shots taken at Duke by the DA. Rape on college campuses a long-standing epidemic. It‘s not isolated to Duke.

Jack Nance in La Cruces, New Mexico asks, wonder what is the frequency of rapes on the NC central campus where the alleged victim was a student versus those occurring on the Duke campus.

Finally, Chris Michelsen in New Orleans, remove yourself from any emotion or thought of the Duke campus and ask yourself quietly, if this were any other college, would I on a consistent daily basis be coming out so strongly against the DA?

OK. Yes. I would acting exactly the same.  In fact I‘ve been more passionate in other cases we covered.  In fact I think I was harder on the DAs in the Scott Peterson case early on when I feared that they were blowing the case.  This is not the only time that I‘ve responded specifically about Duke was when I felt the DA was specifically making these allegations about Duke.  Otherwise, this isn‘t a case about Duke.  It is just not. It‘s about rape, abramsreport@msnbc.com, we go through them at the end of the show. Good night.

(COMMERCIAL BREAK)

ABRAMS: That does it for us tonight. Coming up next, “Hardball” with Chris Matthews. See you tomorrow.

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

END   

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