updated 5/16/2006 12:37:59 PM ET 2006-05-16T16:37:59

Guests: Susan Filan, Norm Early, Larry Kobilinsky, Yale Galanter, Mike Cox

DAN ABRAMS, HOST:  Coming up, breaking news, a third Duke lacrosse player is indicted for rape and sexual assault but this one, team captain Dave Evans held a press conference right after the indictment to proclaim his innocence.

The program about justice starts now. 

Hi everyone.  First up on the docket, another indictment in the Duke lacrosse rape case.  Twenty-three-year-old senior David Evans indicted on charges of rape, sexual offense, kidnapping and just hours ago, he became the first indicted player to speak out in his own defense. 

(BEGIN VIDEO CLIP)

DAVID EVANS, DUKE PLAYER CHARGED WITH RAPE:  I want to thank you all for letting me speak to you today.  My name is Dave Evans and I‘m the captain of the Duke University men‘s lacrosse team.  I have to say that I am very relieved to be the person who can come out and speak on behalf of my family and my team and let you know how we feel.

First I want to say that I am absolutely innocent of all the charges that have been brought against me today, that Reade Seligmann and Collin Finnerty are innocent of all the charges that were brought against them.  These allegations are lies.  Fabricated and they will be proven wrong. 

If I can go back to two months ago when the police first came to my home, I fully cooperated and have continued to try to cooperate with them.  When they entered in and started to read the search warrant, my roommates and I helped them find evidence for almost an hour and told them that if they had any questions, we would gladly answer them to show that nothing happened that night. 

After that, I went down to the police station and gave an un-counseled statement because I knew that I had done nothing wrong and did not feel that I needed an attorney.  After going through photos of my teammates and identifying who was there, I then submitted perfectly willingly DNA samples to the police.  I then turned over my e-mail account, my AIM account, any kind of information that they could have to show that I had not communicated any way that anything happened because it did not happen. 

After that, I had to take a polygraph, which was refused by the Durham Police Department.  Over the past several weeks, I‘ve repeatedly through my lawyer tried to attempt—tried to contact the district attorney, all of my attempts have been denied.  I tried to provide him with exculpatory evidence showing that this could not have happened, those attempts have been denied and as a result of his apparent lack of interest in my story, the true story, and any evidence proving that my story is correct, I asked my lawyer to give me a polygraph. 

I took that polygraph and it was administered by a former FBI top polygrapher with over 28 years of experience, he‘s done several hundreds of sexual cases and I passed it absolutely.  And I passed that polygraph for the same reason that I will be acquitted of all these charges, because I have done nothing wrong and I am telling the truth, and I told the truth from day one.  I‘d like to say thank you to my friends and family, my coach and members of the community who have stood by us through everything from the initial weeks to now.

Their support has given me the strength to come through this, but the thing that gives me the most strength is knowing that I have the truth behind me and it will not faze me.  If I can close, I‘ve always taken pride in my name.  I take pride in my name today and I‘ll gladly stand up to anything that comes against me.  I‘ve never had my character questioned before.  Anyone who has met me knows that this didn‘t happen and I appreciate your support. 

As for my teammates, I love you all, I‘ve never—the honor of being voted captain of all of you, the 46 best guys you could ever meet, it‘s been the greatest honor of my life.  If I can clear things up and say this one more time, I am innocent, Reade Seligmann is innocent, Collin Finnerty is innocent.  Every member of the Duke University lacrosse team is innocent. 

You have all been told some fantastic lies.  And I look forward to watching them unravel in the weeks to come as they already have in weeks past and the truth will come out.  Thank you for your time.

(END VIDEO CLIP)

ABRAMS:  Wow.  Wow.  This guy has just been indicted.  He heads to the courthouse steps to hold that press conference.  Joining me now, former Denver district attorney Norm Early, criminal defense attorney Yale Galanter, and former prosecutor and MSNBC analyst Susan Filan, as well as forensics and DNA expert Larry Kobilinsky. 

All right, first, let‘s start with the fact that he held this press conference.  Susan, good move?  I mean look I think it‘s a great move.  I think that it‘s important that they get out there, that they humanize the defense here, and I think that it was very important to see.

SUSAN FILAN, MSNBC LEGAL ANALYST:  The typical wisdom when you‘re defending somebody is don‘t say anything.

ABRAMS:  Right.  That‘s why I like it...

FILAN:  Exactly.

ABRAMS:  ... because it goes against the typical wisdom.

FILAN:  Well in this case, if they believe so clearly that he‘s innocent, and he certainly states very clearly that he‘s innocent, what have you got to lose?  I mean if that‘s really the truth and the truth is on his side, then it was a great move.  Of course it‘s difficult if he said anything today that‘s untrue, it will be used against him in court when he testifies, if this case ever goes to trial because I understand she didn‘t testify at the grand jury, not that she had to, but where is she?  Is she going to come forward?

ABRAMS:  Norm, what is this business about his attempts being rebuffed?  I mean he‘s claiming that he‘s effectively knocking on the door of the D.A. who‘s saying I don‘t want to talk to you.

NORM EARLY, FORMER DENVER D.A.:  Dan, if in fact that happened, you know, it‘s unfortunate.  I think that district attorneys should try to gather all the evidence that they can prior to submitting something to a grand jury or making a decision of this nature themselves.  But let‘s remember one thing.  None of us know what happened that night. 

None of us were there, and the fact of the matter is that what we do know has come as a result of what‘s largely defense spin, defense attorneys putting information out to the public about this case.  It has not been prosecution spin, but defense spin...

ABRAMS:  Wait, wait, wait, wait...

(CROSSTALK)

ABRAMS:  Wait, wait, wait, Norm. 

(CROSSTALK)

ABRAMS:  We know that these guys were indicted.  We know exactly what she said with regard to the identifications of these guys, and you say we don‘t know.  Let me play this bite from Joe Cheshire...

(CROSSTALK)

ABRAMS:  I‘ve read—wait, wait, I have read the transcript of her identification of Dave Evans, and what he is saying here with regard to the identification is a fact.  Now, listen to what he has to say and I want you to respond to it.

(BEGIN VIDEO CLIP)

JOE CHESHIRE, ATTORNEY FOR DAVID EVANS:  It is true that this false accuser pointed Dave Evans out with 90 percent certainty as being the person that attacked her.  She then was asked if she was sure and she said well if he had the mustache that he was wearing the night of the attack, I would be 100 percent sure.  Mr. Nifong knows that David Evans has never had a mustache. 

We have pictures of David Evans from the day before, the day after and almost every other day along with scores and scores of people‘s testimony to indicate that he never had a mustache.  So this 90 percent identified person who had a mustache is not David Evans. 

(END VIDEO CLIP)

ABRAMS:  All right, Norm, just so we‘re clear, I‘ll read to you from the transcript of exactly what she said, referring to Evans.  He looks like one of the guys who assaulted me.  How sure of it are you on this image?  He looks just like him without the mustache. 

OK.  So the person had a mustache?  Yes.  Percentage wise, what is the likelihood this is one of the gentleman who assaulted you, about 90 percent.  It‘s not spin that that‘s what she said.  And if they can show that he didn‘t have a mustache, that‘s not spin, that‘s facts. 

EARLY:  What I‘m talking about Dan is that for the entire weekend this same attorney was telling the public that the results of the DNA tests pointed to no Duke lacrosse player, only to her boyfriend.  We now know that that‘s not true.

ABRAMS:  No, no, wait...

EARLY:  We know that...

ABRAMS:  Norm, that‘s not true.  He came out; he said that there was a partial...

EARLY:  No.

ABRAMS:  ... that there were alleles that were consistent with one of the players...

(CROSSTALK)

ABRAMS:  ... and he said that that‘s not surprising.  I can pull the bite from Friday if you want, Norm, because I mean if we can pull number 12 please, because this is—it‘s going to take a second to get this going, but Joe Cheshire...

EARLY:  OK.

ABRAMS:  ... on Friday was talking about the plastic fingernail found in the trashcan and he was conceding that there was some consistency to one of the players.  Here‘s what he said.

(BEGIN VIDEO CLIP)

CHESHIRE:  This one plastic fingernail was taken from a trashcan that was in the bathroom used by two of the players who lived in that particular house, in that bathroom and in that trashcan where those fingernails were placed by the lacrosse players when they cleaned up their bathroom.  Also had in it—talking about the trashcan—things such as Q-tips, Kleenex where people blew their nose, toilet paper, and every other possible type of material that carries the people that use the trashcans DNA.

(END VIDEO CLIP)

ABRAMS:  Now Norm, that‘s a defense argument.  There‘s no question that that is the defense‘s...

EARLY:  Absolutely, Dan.

ABRAMS:  ... side of that, but to suggest...

(CROSSTALK)

ABRAMS:  ... that he was saying that there was no DNA just isn‘t true. 

EARLY:  He didn‘t say that the DNA pointed to evidence.  He didn‘t say that the DNA pointed to any Duke lacrosse player.  Look, there were what, 36, 46 people at that party and the DNA did not point to any of the other 35 or 45 people, except the one person who she says was the third person in the bathroom...

ABRAMS:  And who lived in the house.

EARLY:  But it excluded everybody—Dan, it excluded everybody else.  How does she know he lived in the house?  How does she know that his DNA is going to be there or some traces of his DNA?  The fact of the matter is that it excluded everybody else except him and he happens to be the one that she said in advance of finding the DNA that she‘s 90 percent sure that he‘s got.  Now...

ABRAMS:  She could have absolutely—Norm, keep in mind, the identification was made weeks later.  At that point, we knew everyone who lived in that house.  I‘m not saying that she suddenly like you know picked him, oh, he lives in the house, I‘ve got to pick him. 

EARLY:  Right.

ABRAMS:  It could just be she picked him randomly and the bottom line is this guy was the one guy of the three who lived in the house. 

EARLY:  Yes, Dan, but I still contend based on what you just heard in that sound bite about how they got in to that trashcan and everything else, that‘s defense spin for the public consumption, the public from which eventually a jury will be selected.

ABRAMS:  Well look, I‘m going to get to—Yale, I want to ask you about the mustache again in a minute.  I‘m not changing topics—because I think that‘s a make or break issue in my mind, but...

EARLY:  I think it‘s a big issue too, Dan.  I really do.

ABRAMS:  Yes.  The bottom line is she said the guys had a mustache and they can show he didn‘t have a mustache.  Case over...

(CROSSTALK)

ABRAMS:  I mean I‘m sorry.  It‘s done, right? 

EARLY:  The prosecutor has to have that information.

ABRAMS:  He‘d better. 

EARLY:  And has to know that, and if he doesn‘t know that, it‘s a big problem.  If he knows it and feels that he has a way around that, as an issue in this case, it may not be as big a problem. 

ABRAMS:  Larry Kobilinsky, let‘s talk DNA, all right.

LARRY KOBILINSKY, DNA EXPERT:  Sure.

ABRAMS:  You came on this show; initially you were saying you thought it was a big deal.  Now knowing that that fingernail was found in the garbage in the home where this guy lived, still a big deal? 

KOBILINSKY:  Yes, I think it is a big deal, but there are two very critical issues here that we don‘t have the answer to.  First, what is the nature of the tissue that‘s associated with the nail?  Is it blood?  Is it skin cells?  If so, that would corroborate her story. 

ABRAMS:  Tissue, tissue is what we heard. 

KOBILINSKY:  Tissue, right.

ABRAMS:  Yes.

KOBILINSKY:  Well, tissue could be blood.

ABRAMS:  All right.

KOBILINSKY:  It could be skin.  If it‘s semen or saliva that could mean that it was casually transferred.  Now the other issue is the location on the nail where this tissue...

ABRAMS:  Yes.

KOBILINSKY:  ... was found.  Was it on the outside?  Was it on the inside?  So you know there are other explanations as to how DNA can become associated with a nail.  It could be casual transfer.  It could be transferred during a lap dance or it could be the result of fending off one self from a violent attack...

ABRAMS:  Yes.

KOBILINSKY:  ... but is the DNA important?  Yes, it‘s important, because it does provide some genetic information that will either corroborate her story or disprove it.  It is a partial profile.  That argues to the significance of the match...

ABRAMS:  Right.  Larry, look, you‘re also a criminal justice expert.

KOBILINSKY:  Yes.

ABRAMS:  You‘re not just a forensic expert...

KOBILINSKY:  Yes. 

ABRAMS:  She says the guy had a mustache. 

KOBILINSKY:  Right.  Well...

ABRAMS:  She said she was 90 percent sure.  If they can show he did not have a mustache at that time, case over against him, right? 

KOBILINSKY:  Well, Dan, actually, you know people can wear false mustaches...

ABRAMS:  OK.  Fine.

KOBILINSKY:  ... but let me just tell you...

ABRAMS:  Fine...

KOBILINSKY:  I mean everybody in law enforcement...

ABRAMS:  He had a Groucho—let‘s assume he didn‘t have a Groucho Marx like you know...

(CROSSTALK)

ABRAMS:  I mean I guess that‘s possible, right?

KOBILINSKY:  Well, it‘s been demonstrated over and over and over that eyewitness identification is not completely reliable.

ABRAMS:  But that‘s what this case is based on. 

KOBILINSKY:  Right, but it should be based on more.  There‘s physical evidence here.  There‘s fingernails.  There‘s a hair that was recovered during the rape examination.  There‘s other evidence to be considered. 

ABRAMS:  And we haven‘t even talked about the fact, Yale that the only DNA that was found inside her was that of someone she knew. 

YALE GALANTER, CRIMINAL DEFENSE ATTORNEY:  Dan, this case, every day we cover this case, it gets more and more the opposite of what a normal criminal case is.  Here we have the defense going out doing polygraphs, the defense knocking on the D.A.‘s door and we mentioned this Monday.  Mr.  Nifong, take a step back, listen to these lawyers, listen to what they have and the only DNA found if her vaginal cavity is from someone else who she knows, not the 47 boys.

The one thing, Dan, that Mike Nifong had going for him was this medical report by this rape nurse who said there was trauma to the vaginal area consistent with recent sex.  We now know that the sex was consensual with someone other than...

ABRAMS:  Yes.

GALANTER:  ... one of the Duke lacrosse players.  This case gets worse and worse and worse every day, and Dan, you‘re 100 percent right, if they can prove that Mr. Evans did not have a mustache, this is a homerun for the defense...

(CROSSTALK)

ABRAMS:  All right.  Let me—I‘ve got to take a quick break here.  Again, I welcome Mike Nifong, the D.A., to come back on the program—and feel free—I‘ll be all ears—to explain some of what‘s going on.  Please, Mike, we‘d love to have you back on.  Everyone is going to stick around because we‘ve got more on the Duke lacrosse case.  

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

EVANS:  When the police first came to my home, I fully cooperated and have continued to try to cooperate with them.  When they entered in and started to read the search warrant, my roommates and I helped them find evidence for almost an hour.  And told them that if they had any questions, we would gladly answer to show that nothing happened that night.  After that, I went down to the police station and gave an un-counseled statement because I knew that I had done nothing wrong and did not feel that I needed an attorney.

(END VIDEO CLIP)

ABRAMS:  David Evans was charged today and he held a press conference, the first of the indicted players to speak out publicly.  Susan Filan, if what he‘s saying is true, that in the—you know, that they helped the police when they came over, that they provided things out of the garbage, et cetera, do they get any credit for that? 

FILAN:  Well normally you don‘t.  I mean you don‘t, but in this case I think you do because if these guys had just engaged in a violent rape and they knew that her fingernails had come off, I can‘t imagine these guys would have handed the fingernails over, so I think if I were a juror, (INAUDIBLE) prosecutor or defense lawyer, I‘m just an average juror, that would weigh in my mind.  I would say why wouldn‘t you hide it if you were trying to cover something up.  That he went and did a polygraph, and he‘s coming out doing this press—I mean the defense, if this is strategy or if this is spin, it‘s pretty powerful stuff.  I mean...

ABRAMS:  Susan, you‘re kind of coming—let‘s be honest. 

FILAN:  Right.

ABRAMS:  You‘re kind of coming around, I mean in the sense that you

started this case—Norm is laughing, because Norm is a little bit I think

I mean look...

FILAN:  I‘ll tell you what I am, Dan. 

ABRAMS:  Yes.

FILAN:  I‘m scared. 

ABRAMS:  Of what? 

FILAN:  If these guys are innocent and their lives are being ruined because we‘ve got somebody, vigilante out of control, that‘s the worst part of the power of being a prosecutor.  The prosecutor at this stage is supposed to be prosecutor and defense lawyer, because you‘ve got justice in your hands, you‘re supposed to have the truth on your side, and you‘re supposed to do the right thing and that means you protect the innocent as well as accuse the guilty. 

You don‘t just go after somebody because you can, and what Yale was saying about the DNA, you know there‘s an innocent explanation for how it could have gotten on the fingernails.  Look, the DNA I think is significant, but if you‘re going to convict just on a little bit under her fingernail, again, we don‘t know what the tissue is. 

We don‘t know where it is on the nail.  That‘s too scary.  I mean that‘s when it gets thin and that‘s...

ABRAMS:  Well here‘s what bothers me.  If this is true and this is Joe Cheshire, the attorney for David Evans today, if what he‘s saying here is true, this is disturbing.  All right.  Listen.

(BEGIN VIDEO CLIP)

CHESHIRE:  We‘ve asked and wanted to have Dave come and actually sit down with Mr. Nifong, answer any question he wanted, look him in the eye.  He gave that respect to this woman, but he did not give that respect to Dave Evans. 

UNIDENTIFIED FEMALE:  (INAUDIBLE)

CHESHIRE:  I‘ve never in my entire life had a prosecutor refuse to look at evidence that I was willing to show him.  I want to see everything he‘s got and my experience is prosecutors want to see everything I have, but you know when your ears are shut and your eyes are closed and your mouth is open, sometimes you don‘t want to hear and see things that will show the truth as the way the truth is. 

(END VIDEO CLIP)

ABRAMS:  Norm, if it‘s true that this attorney has offered to bring his client in to speak with the D.A. and the D.A. has said no, that‘s ridiculous, right?

EARLY:  You know, I don‘t know the circumstances...

ABRAMS:  I‘m asking if. 

EARLY:  In general, as a prosecutor, I want to gather as much as I can, and as I‘ve said before, when the defense wants to give you something, as a prosecutor, you should take it, because it gives you...

ABRAMS:  So...

EARLY:  ... insight into the defense case. 

ABRAMS:  Norm, Mike Nifong watches this program, all right, or I know he and his team or people who work with him watch this show.  You are a well respected...

EARLY:  Right.

ABRAMS:  ... someone who is one of the leaders of the National District Attorneys Association, former Denver D.A., if this—if Dave Evans is willing to walk into his office, I want you to look into the camera and tell Mike Nifong what he should do. 

EARLY:  Well, again, I don‘t know all of Mike‘s evidence or why he‘s pushing the case in the way that he is.  I can only assume that as a prosecutor and knowing his ethical responsibilities, he‘s got a lot more in his bag than we know about.  The other thing I would like to address is the question that you asked Susan.

ABRAMS:  You don‘t want to address my question...

EARLY:  The police—yes, well that‘s the best I can do with it right now.

ABRAMS:  All right.

EARLY:  The police were there with a search warrant, they were there with the search warrant and then the boys decide they‘re going to cooperate.  I mean most people would do that. 

GALANTER:  That‘s actually not...

EARLY:  Most people would say...

GALANTER:  That‘s not accurate, Norm. 

EARLY:  Well that‘s what...

GALANTER:  That‘s not what occurred. 

EARLY:  That‘s what I just heard...

GALANTER:  This is the young man who had his plea agreement...

EARLY:  This is what...

ABRAMS:  Yale, address the question...

(CROSSTALK)

ABRAMS:  Yale...

GALANTER:  He voluntarily...

ABRAMS:  Right.

GALANTER:  ... gave a statement to the police about what occurred at the party...

ABRAMS:  It was before the search warrant. 

GALANTER:  ... before there was a search warrant...

ABRAMS:  Yes.

GALANTER:  ... this kid was cooperating from second one without a lawyer.  All of his acts are consistent with somebody who‘s innocent and so were his roommates, Norm.  This had nothing to do with the police coming with a search warrant saying let us in the house. 

EARLY:  OK, I heard...

GALANTER:  This kid fully cooperated. 

EARLY:  I heard him say—I‘m sorry—I heard him say that the police were there with the search warrant...

ABRAMS:  Later, yes.

EARLY:  ... and it was at that point...

GALANTER:  Later...

EARLY:  ... that they showed him the trashcan, showed him everything because the police were there with the search warrant.  Now I don‘t know whether or not most people would do that, but I think that there‘s a good likelihood that they would.

ABRAMS:  All right.  Let me let Susan...

EARLY:  If the police are there with a search warrant, help them out, because it‘s going to look better for you in the end. 

ABRAMS:  That‘s fine.  But Susan, Norm is saying it‘s the best he can do and I‘m not going to push him anymore.  But why don‘t you—I mean look, the bottom line is, isn‘t it pretty fair to say that you can look in the camera, as I am right now, and if Dave Evans is saying to the D.A. I will come in and I will talk to you with my lawyer sitting there, the D.A.  should say yes. 

FILAN:  I have never refused a defendant the opportunity to come and sit down and speak to me.  I‘ve had people accused of murder come and sit down and speak to me, stupid move, shouldn‘t have done it, they were there with their lawyer, helped me convict them, but if these guys are truly innocent and they want to sit down with...

ABRAMS:  If they‘re innocent or they‘re guilty...

(CROSSTALK)

ABRAMS:  Forget about it.  If they‘re innocent or they‘re guilty...

FILAN:  Well that‘s right.  (INAUDIBLE) the D.A. should talk to him because he may get something in his bag of tricks that will help him, but if not, he should sit down and see what they‘ve got and talk to the defendant who wants to talk to the D.A. and listen to them, and I don‘t say that in absolutely every case.  I don‘t say anything (INAUDIBLE).  In this case, sit down with them. 

ABRAMS:  Yes.  I mean...

GALANTER:  Dan, just from a tactical standpoint, this prosecutor gave up an opportunity to get a prior inconsistent statement...

ABRAMS:  Yes.

GALANTER:  ... from someone who he will be cross-examining later down the line. 

ABRAMS:  I‘m going to give...

GALANTER:  If he wasn‘t the prosecutor...

ABRAMS:  I‘m going to give Mike Nifong the benefit of the doubt here...

GALANTER:  ... this would be malpractice.

ABRAMS:  I‘m going to give Mike Nifong the benefit of the doubt and I am going to suggest that he did not understand exactly what was happening, because maybe the defense is not totally saying it straight, maybe they sort of made references to maybe if and they put conditions on it, et cetera, OK.  But if they are willing to come in unconditionally, the only condition being my lawyer is going to sit there with me and answer questions and the D.A. is saying I don‘t have time to talk to the defendant, that is insanity. 

Again, Mr. Nifong, you are invited to come on this program and dispute anything that they are saying.  I will give you as much time as you want, if you want half an hour, you want 40 minutes, you got it, to be able to explain it because I don‘t think—you know as Norm has pointed out, we‘re all saying he‘s got to have something else.  He‘s got to have something else. 

EARLY:  Well, you know, Dan...

ABRAMS:  Right, Norm?

EARLY:  You just changed the—yes, you just changed it to with no conditions whatsoever.  We don‘t know what conditions the defense attorney has put on this potential interview with the district attorney‘s office, but if there were none at all...

ABRAMS:  What kind of conditions would be unacceptable...

(CROSSTALK)

FILAN:  What kind of conditions would make you say...

(CROSSTALK)

FILAN:  ... I won‘t sit down? 

GALANTER:  Dan, there were no conditions.

EARLY:  I don‘t want any conditions.  I don‘t want any conditions on it.  I want to sit down straight up...

GALANTER:  There were no conditions.

EARLY:  ... advise him of his rights.  Well that‘s what you say...

GALANTER:  They offered to come in...

(CROSSTALK)

ABRAMS:  Let me just tell you...

GALANTER:  ... give him all the names, the dates, places, the timeline...

ABRAMS:  For the sake...

(CROSSTALK)

ABRAMS:  For the sake of the American criminal justice system, I hope that Mike Nifong has something else, because the idea of the mustache versus no mustache, and the inconsistencies in the timeline and the problems that this case that have come up...

FILAN:  And the DNA.

ABRAMS:  ... and the DNA—I mean you name it...

GALANTER:  Dan, and again, the only strong piece of evidence he has is down the toilet now because we know that the DNA that was found in her vaginal cavity according to defense sources was the boyfriend. 

ABRAMS:  Well look...

(CROSSTALK)

ABRAMS:  Look, they still...

(CROSSTALK)

ABRAMS:  I‘m not going to...

(CROSSTALK)

ABRAMS:  Look, you can make an argument about the DNA both ways, but I‘m saying with regard to the stuff that‘s not debatable...

FILAN:  That‘s debatable.

ABRAMS:  ... the mustache versus the no mustache, whether Reade Seligmann could have even been there, et cetera, the bottom line is I think he owes it to the public, he owes it to the people of the state of North Carolina to say I have got more, don‘t worry, people, I have got more, I have got a player, I‘ve got something.  I‘ve got—because otherwise, we are going to continue to talk about this case in this way.  Anyway.  All right...

(CROSSTALK)

EARLY:  Dan...

(CROSSTALK)

FILAN:  And I think he also needs to say I‘ve considered what the defense has to say.  I‘ve looked at the defense point of view, I‘ve looked at all the evidence including that from the defense.  I think he has to say that too. 

ABRAMS:  All right.  Everyone is going...

EARLY:  Dan, I heard him say that he had more.  I heard him say...

ABRAMS:  Yes, he did.  Yes, he did.

EARLY:  ... that the defense wanted to give him evidence...

ABRAMS:  All right, I‘ve got to wrap it up. 

(CROSSTALK)

ABRAMS:  We‘re coming back. 

EARLY:  OK.

ABRAMS:  We‘re coming back.  We‘re going to talk—we‘re going to play more of Dave Evans‘ press conference, coming up.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  For five years beginning when I was 13 years old, I operated a pornographic Web site featuring images of myself floated on the Internet by Web cams.  I was paid by more than 1,000 men to strip naked, masturbate and even have sex with female prostitutes while on camera.

(END VIDEO CLIP)

ABRAMS:  Remember Justin?  The man Justin says was behind all of that, the man who lured him into the world of child porn has now finally, finally been arrested. 

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

Police are looking for Jeremey Duffer.  He‘s 35, five-eleven, 250, was convicted of child rape and aggravated sexual battery, has not registered his address with the state.  If you‘ve got any information on his whereabouts, please contact the Tennessee Bureau of Investigation, 1-800-824-3463.  We‘ll be right back.

(COMMERCIAL BREAK)

(NEWS BREAK)

(BEGIN VIDEO CLIP)

EVANS:  If I can clear things up and say this one more time, I am innocent, Reade Seligmann is innocent, Collin Finnerty is innocent, every member of the Duke University lacrosse team is innocent.  You have all been told some fantastic lies, and I look forward to watching them unravel in the weeks to come as they already have in weeks past, and the truth will come out.  

(END VIDEO CLIP)

ABRAMS:  David Evans, who was indicted today, immediately going to the courthouse steps and holding a press conference and these are pictures just in of Evans going through the booking process much like Seligmann and Finnerty did, but he was literally there at the courthouse.  I think that helped avoid a shot of him in handcuffs.  Real quick, Susan.  Why does that avoid him having to be put in cuffs? 

FILAN:  Well, maybe they cuffed him when he got inside.  I really don‘t know the technicalities of how they‘re doing it down there, but typically when you‘re arrested, you‘re in custody, you‘re in handcuffs, and the only difference I can think of is maybe where they put him in cuffs, the media couldn‘t get a picture of him. 

ABRAMS:  Yes.  And as you see there, I guess he had to remove his belt, et cetera.

FILAN:  Yes.  Standard. 

ABRAMS:  Standard procedure?

FILAN:  Absolutely. 

ABRAMS:  Yes.

FILAN:  Yes, they‘re going to pat him down.  They‘re going to search him.  They may even do a cavity search.  They‘re going to completely check him over from head to toe.  They‘re going to photograph him.  They‘re going to fingerprint him.  His data is now going to go into a nationwide data bank.  Once it goes in there, it‘s next to impossible to get—ever, ever, ever get it out even if he‘s acquitted. 

ABRAMS:  Or what if the charges are...

FILAN:  Same thing...

ABRAMS:  ... if they don‘t go to trial?

FILAN:  Very difficult.  Once you‘re in the system, it‘s very hard to remove any trace of you. 

ABRAMS:  Norm...

(CROSSTALK)

ABRAMS:  ... you want to get in?

(CROSSTALK)

ABRAMS:  Who wanted to get in, Yale? 

(CROSSTALK)

ABRAMS:  Was it Norm? 

GALANTER:  Yes, I mean Susan is right, Dan. 

(CROSSTALK)

GALANTER:  I mean this mark, even if these charges are dismissed, now pressed, he‘s found not guilty by a jury of his peers, he will be in this national data bank and even though he could have his record sealed and/or expunged in North Carolina, this will follow him around forever, because any time a law enforcement punches it in, they‘ll know he was arrested and they‘ll know the disposition of this case. 

ABRAMS:  Go ahead Norm.  I‘m sorry. 

EARLY:  Well, with the advent of computers and the advent of the nationwide system, just as Susan said, don‘t get out of the system and that‘s one of the things that‘s unfortunate about someone pointing the finger at you, because this is a very, very serious matter and hopefully...

ABRAMS:  Yes.

EARLY:  ... this victim knows how serious a matter it is.

ABRAMS:  All right, here‘s right after Evans spoke on the courthouse steps today after he was indicted, his attorney also spoke, and he talked about some of the DNA evidence that has been recovered in this case, and again, remember, we know that there was apparently some DNA tissue material found under one of her fake fingernails, in a garbage that was in the bathroom, that was consistent with Dave Evans.  Again, he lived in the house.  The question of course is, how important is that, but Joe Cheshire, the attorney pointing to another item of DNA that was found actually inside her body. 

(BEGIN VIDEO CLIP)

CHESHIRE:  No additional evidence, and that‘s what‘s so stunning about this indictment.  I don‘t—I don‘t want to forget to remind you all because in the DNA reporting, somehow, some of you didn‘t quite understand how important it is that this single male source shows that this woman did have sex with a male. 

The male is named in the report and the male is not a Duke lacrosse player.  And yet with that evidence, that being the only additional new evidence, Dave Evans is indicted.  In other words, his only additional new evidence is she had sex with somebody other than Dave Evans, so Dave Evans gets indicted. 

(END VIDEO CLIP)

ABRAMS:  All right.  Larry Kobilinsky, our DNA expert, how important is that, that the only DNA that was found inside her is somebody apparently she knew? 

KOBILINSKY:  I think it is very important.  My first question is, is did she inform law enforcement that she had had intercourse with somebody during the past five days.  If she did not, you have to ask about her credibility.  But the fact that they have DNA, it‘s somebody other than any of the 46 lacrosse players simply strengthens the defense‘s not allegation...

ABRAMS:  Yes and Larry, they also say that the DNA was found on the fingernail and not underneath it.  That‘s significant as well, right?

(CROSSTALK)  

KOBILINSKY:  Well that is a very key comment that you just made, because it can be transferred, you can get DNA transferred by casual contact.  I would certainly expect that if the DNA got underneath the fingernails due to scratching somebody that there would be blood or skin, but I think the way we‘re talking about this now it could have been transferred secondarily...

ABRAMS:  Yes.

KOBILINSKY:  ... without an act of violence, so I think that at this point, this case is becoming very, very questionable, and although there certainly was enough information for an indictment, I don‘t think at this point there‘s enough to convict.  There‘s certainly reasonable doubt at this stage...

ABRAMS:  Yes.  All right...

KOBILINSKY:  ... with what we know. 

ABRAMS:  I‘ve got to wrap it up, but again...

UNIDENTIFIED MALE:  OK.

ABRAMS:  ... the D.A., Mike Nifong is invited to come on the program.  I talked to him last time I was there over a sandwich, and told him that he was welcome to come on the program.  I just want to remind him that he‘s invited to come back on and clear anything up that he would so choose.  Norm Early, Yale Galanter, Susan Filan, and Larry Kobilinsky, thanks a lot.

FILAN:  Thank you, Dan.

EARLY:  Thank you, Dan.

ABRAMS:  Remember when we heard Justin Berry tell Congress about how he got started in the online child porn world when he was just 13?  Finally, the man who he says got him started and sexually abused him is behind bars.

And “Dateline NBC” was there when Florida police arrested potential sexual predators.  We showed you what happened.  Some of you don‘t like what you saw the police doing.  Your e-mails. 

And be sure to tune right here at 8:00 p.m., Chris Matthews, coverage of the president‘s primetime speech on immigration reform.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, he testified before Congress about the years he endured as a victim in the child porn business, now the man he accused of forcing him into the industry is behind bars. 

(COMMERCIAL BREAK)

ABRAMS:  Remember 19-year-old Justin Berry, testified in front of Congress last month, detailing his life in the Internet child porn business?  Started when he is just 13.  He alleged that one man, Ken Gourlay, from Michigan, lured him into the business and repeatedly molested him.  Finally this morning, Gourlay was arrested.  We‘ll talk to Michigan‘s attorney general about the charges in a moment, but first, here‘s what Justin Berry had to say. 

(BEGIN VIDEO CLIP)

JUSTIN BERRY, LURED INTO INTERNET PORN AT AGE 13:  One afternoon a few weeks after setting up my Web cam, one of these men approached me online with a proposal.  He would pay me $50 if I took off my shirt for a few minutes while sitting in front of my Web cam.  He explained to me how to set up an account on Paypal.com, an instant online money payment system.  I was excited about the $50, an amount that struck at the time as a huge sum of money.  Taking off my shirt seemed harmless.  I did it at the pool.  The money arrived and I took off my shirt. 

My viewers complimented me and it felt good.  The weeks that followed are a blur, but I now understand that by removing my shirt, I signaled that I could be manipulated.  More gifts and money arrived, along with increasingly explicit requests.  They wanted me to take off my pants, remove my underwear and eventually masturbate on camera.  The seduction was slow.  Each request only went a bit further than the last and the horror of what was happening didn‘t strike me at that time. 

I wish I could say I hated what was happening.  Perhaps that would absolve some my sense of guilt, but the truth is I did not.  As more clothes came off, more people contacted me.  The compliments were endless, the gifts and payments terrific.  I thought I had achieved online what alluded me in real life—I was popular.  Everyone wanted to know my thoughts; everyone wanted to give me things.  I was the king of my own universe. 

All I had to do in exchange was strip and masturbate while alone in my room.  Men began to reach out to me.  One man, Ken Gourlay, approached me online to discus my interest in computers.  He operated his own Web hosting company, called Chain Communications.  I was awed.  Here was someone running a real Internet business, talking to me, a 13-year-old kid and treating me as an equal.  And in the months that followed, Ken raised the possibility of hiring me at Chain as an executive director of sales and marketing. 

It seemed like a dream come true.  As I was working for him, Ken recommended that I attend an elite computer camp at the University of Michigan where I could obtain advance certifications.  My mother agreed to send me there that summer while I was still 13.  At that time I thought it was just luck that Ken and Chain were both based in Ann Arbor, Michigan. 

I now know that I had been set up.  Ken picked me up at camp one day to show me Chain.  He took me to his home.  There I was sexually molested by Ken for what would prove to be first of many times by him and other adult men.  With the help of my family and my psychologist, I now understand that my molestation by Ken was a turning point that sent me on a path to self-destruction.  Afterwards, Ken apologized, promising me it would never happen again, but it did. 

(END VIDEO CLIP)

ABRAMS:  Well, finally Ken Gourlay was arrested.  Joining me now is Michigan attorney general, Mike Cox. 

MIKE COX, MICHIGAN ATTORNEY GENERAL:  Thank you, Dan.

ABRAMS:  Thanks a lot for coming back on the program.  Appreciate it.

COX:  Well thank you, Dan. 

ABRAMS:  All right, so the question everyone is asking is why did it take so long? 

COX:  That‘s a good question to ask.  The bottom line is since we got the case, we‘ve been on fire getting it done.  I actually found about it from “The New York Times” on December 13, I believe it was.  I was reading the paper...

ABRAMS:  Yes.

COX:  ... that evening.  I read the Kurt Eichenwald story and sent an e-mail to one of my folks and we got started on it right away.  You know the federal government had it for awhile and you know how sometimes it takes a little bit of time, but the bottom line is we got it done and today, Mr. Gourlay is behind bars with a $500,000 cash bond, we got 10 felony counts, and you know, justice is going to be served here for Justin Berry. 

ABRAMS:  All right.  Let me play—this is what Justin had said—it‘s number two—in front of Congress on April 4, about how frustrated he was at the time about the government‘s lack of follow-up. 

COX:  Right.

(BEGIN VIDEO CLIP)

BERRY:  Some of those who molested me like Mr. Gourlay and who made all of this possible are continuing to live their lives unaware or uncaring about any government inquiry.  I have watched as my former members go online to attack me, boldly proclaiming themselves as my former customers and having no fear that their self-disclosure could result in their arrest. 

(END VIDEO CLIP)

ABRAMS:  You have a pretty strong case against him, and what kind of evidence do you have? 

COX:  We wouldn‘t charge if we weren‘t confident that we can have a jury find him guilty.  And Dan, this is only the beginning.  Actually, we got into his house last week; we arrested another man, Edward Mulak, for possession of child pornography...

ABRAMS:  His roommate, right?

COX:  His roommate.

ABRAMS:  Yes.

COX:  And we‘re actually sifting through—there were eight different computers, 30 different servers, hundreds, if not thousands of images, as well as files, so we have a lot of work in front of us, but as soon as we could, we got these 10 charges out there to get going, because as we uncovered, Mr. Gourlay had had contacts with Mexico, Virginia, Florida, so we didn‘t want him to escape our reach. 

ABRAMS:  Here‘s Gourlay, this is in front of Congress.  They made him testify.  He took the Fifth. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Mr. Gourlay, do you—did you ever have sexual contact with Justin Berry when he was under the age of 18 years old? 

KEN GOURLAY, ACCUSED OF MOLESTING TEENAGE BOY:  I will decline to respond based on Fifth Amendment privilege. 

UNIDENTIFIED MALE:  Are you refusing to answer any questions that we may ask you today based on the right against self-incrimination afforded to you under the Fifth Amendment of the U.S. Constitution? 

GOURLAY:  Yes, sir. 

(END VIDEO CLIP)

ABRAMS:  Attorney General Cox, I don‘t mean to put you on the spot, do you know how old Gourlay is?  And I ask you that because he looks like a very young guy and we‘re talking about stuff...

(CROSSTALK)

ABRAMS:  ... that happened probably five, six years before. 

COX:  Right.  Gourlay is 28, 29.  When he initiated this relationship with Justin Berry, he would have been about 23 or 24.  But you know, regardless of how young he looks now...

ABRAMS:  Yes.

COX:  ... he was...

ABRAMS:  He was an adult.  I just wanted to make sure.

COX:  He was an adult. 

ABRAMS:  Yes.  Yes.

COX:  He was about—you know Dan, this is like those old B horror movies where someone reaches out and grabs the viewer from the TV and pulls them into the TV, and unfortunately, these molesters reached out to Justin Berry, a 13-year-old kid in his own house and sucked him in, and that‘s one of the tragedies here.  It‘s a great thing, I‘m glad you‘re publicizing this, because parents need to constantly be reminded, you know, there are so many dangers out there and you‘ve got to watch your kids...

ABRAMS:  Yes.

COX:  ... and make sure where they‘re going. 

ABRAMS:  Well and got to appreciate guys like you who are trying to find the bad guys and bring them to justice.  Attorney General Cox thanks a lot.

COX:  Well thank you, Dan.

ABRAMS:  Coming up, “Dateline” goes undercover to catch potential sex predators before they strike.  Some of you writing in saying it‘s wrong.  They shouldn‘t be doing it.  Some of you commenting on the body slams too.

And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing offenders before they strike.  This week we‘re in Tennessee.

Authorities need your help finding Russell McCollum.  He‘s 27, six-foot, 160, was convicted of aggravated sexual battery of a child, has not registered his address with the state.  If you‘ve got any information in his whereabouts, please contact the Tennessee Bureau of Investigation—help them wipe that grin off his face -- 800-824-3463.  We‘ll be right back.

(COMMERCIAL BREAK)

ABRAMS:  Time now for “Your Rebuttal”.  Last week we showed you more of “Dateline NBC‘s” undercover operation targeting potential sex predators in Florida. 

Eli Withers, ‘Dateline‘ is going to deter them?  I thought that was—job was already taken by our justice system.  You‘re overlooking the fact that several admitted knowledge of the ‘Dateline‘ stories and somehow failed to be deterred.”

Oh, please, Eli.  So if the justice system has it under control, why are police departments across the nation calling “Dateline” to their towns?  And so, some of them are dumber than you would expect, even though they‘ve seen the “Dateline” reports.  That doesn‘t mean it hasn‘t deterred many more. 

From Hineston, Louisiana, Chuck Coker, “I‘m not defending those who show up for sex with 14-year-olds, but it seems to me that the police are a little over zealous when they confront the men.  Most of the men put their hands in the air when told to do so, when two or three or four policemen roughly tackle them to the ground despite their cooperation.”

Tariq Awan, “Catching an adult who wants to have sex with a minor is a good thing, but the way it‘s being caught on TV is very wrong.  I consider it entrapment.”

It‘s not entrapment, Tariq, because these men are reaching out to the decoy, not the other way around. 

Cheri in Middleburg Heights, Ohio, “As a survivor of childhood sexual abuse, I applaud the efforts of responsible media to expose these degenerates and raise public awareness.  Anyone not wanting to see these stories should dust the sand off their hands and thank their lucky stars they don‘t have to live with the scars left from surviving predators like those exposed on your show and ‘Dateline‘.  Thanks again.  Keep up the good work.”  Thank you, Cheri.

From Plainfield, New Jersey, Ken Bradley suggests, “You guys need to do a sting in the Washington, D.C. area so the nation can see what politicians can be nabbed in the sting operations.”

Talaya in Pittsburgh, “Am I the only person that finds it scary that out of all the shows on catching sex predators, 100 percent of them have been men?”  Come on.  Are you really surprised that it‘s all guys?  Not a surprise to me. 

Belkys Garcia in Miami, “I want to express my gratitude to Chris Hansen, ‘Dateline‘, Perverted Justice, and the police for participating in catching these online predators.”

Amen.  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.  Don‘t forget live coverage of President Bush‘s address to the nation tonight here on MSNBC at 8:00 p.m. Eastern Time.  And 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   

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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