updated 5/23/2006 1:53:13 PM ET 2006-05-23T17:53:13

Guests: Larry Kobilinsky, Yale Galanter, Norman Early, Julia Renfro, Vinda De Sousa, Clint Van Zandt, Joe Tacopina, Mayer Morganroth, Lucy Dalglish, Steve Presser, David Hawkings

SUSAN FILAN, GUEST HOST:  We‘ve been waiting for test results to determine whether the woman who accused three Duke lacrosse players of rape was drunk or was drugged the night of the alleged attack.  But is it possible we will never know? 

The program about justice starts now. 

Hi everyone.  I‘m Susan Filan.  Dan is on jury duty today. 

We begin with new developments in the Duke lacrosse rape investigation.  Is it possible that the woman who accuses three Duke lacrosse players of rape was never tested for drugs or alcohol hours after the alleged attack? 

In court papers filed this morning, attorneys for one of the defendants, Reade Seligmann said—quote—“The sexual assault nurse examiner specifically checked a box on the sexual assault exam report, indicating that toxicology samples were not collected.”

Now, remember, earlier this month, in an interview with “Newsweek” magazine, district attorney Mike Nifong hinted to “Newsweek” that blood and urine tests of the woman would reveal the presence of a date rape drug.  But according to Seligmann‘s attorneys, no such toxicology report, if it exists, was provided to the defense in the 1,278 pages of discovery. 

Joining me now, criminal defense attorney, Yale Galanter, former Denver district attorney, Norman Early and forensic examiner and professor of forensic science at John Jay College of criminal justice, Larry Kobilinsky.  Larry, let me start with you.  What exactly are these toxicology tests supposed to show?  I‘m going to ask you to be our sexual assault nurse today.  Essentially, wouldn‘t it be typical—or would it be typical in an allegation of rape, that some kind of toxicology tests would be taken? 

LARRY KOBILINSKY, FORENSIC EXAMINER:  Well, the answer to that question, Susan, is no.  Toxicology is not normally conducted during a rape examination unless the physician or nurse examiner is clearly aware that there is some drug or some substance that is altering behavior markedly.  It simply is not part of what is usually done... 

FILAN:  OK...

KOBILINSKY:  Yes.

FILAN:  ... what would a toxicology test show?  We think that a toxicology test would show prescription medications, non-prescription medications, illegal drugs, including alcohol, and date rape drugs.  Do you agree with that, Dr. Kobilinsky? 

KOBILINSKY:  Well, generally speaking, these are the kinds of substances that are checked in a tox screen.  But the—with respect to the date rape drugs, they‘re not generally tested in these screens, unless they‘re specifically asked for. 

FILAN:  OK, let me ask you this.  We‘ve got a report essentially, this was from the police officer who was dispatched to the Kroger‘s that night and the police officer basically said, this is going to be...

(BEGIN AUDIOTAPE)

POLICE OFFICER:  This is going to be a 24-hour hold.  She‘s 1056 and unconscious (INAUDIBLE).

DISPATCHER:   You need a medic truck (INAUDIBLE)?

POLICE OFFICER:  She‘s breathing, appears to be fine.  She‘s not in distress.  She‘s just passed out drunk. 

(END AUDIOTAPE)

FILAN:  OK, so would that cause a nurse or a doctor to ask for these toxicology tests? 

KOBILINSKY:  Yes.  All of these date rape drugs and including alcohol are central nervous system depressants.  They‘re sedatives, basically.  These drugs will relax the muscles and create a certain kind of behavior that a nurse practitioner, somebody who specializes in these kinds of examinations should recognize.  But again, it‘s not part of the normal screening. 

FILAN:  OK, let me turn to Yale.  Yale, how big a deal is it, do you think, for the defense that these tests were either never done, because we can‘t really tell if they were never done, or that there are results but they haven‘t been turned over yet? 

YALE GALANTER, CRIMINAL DEFENSE ATTORNEY:  Well, first all, Susan, I think they‘re huge for the defense, and I think we do now know that they were not done.  We know that at last Thursday‘s hearing, Mike Nifong made a statement on the record that the defense had now been given everything he had in his file... 

FILAN:  Right.  But the tests could have been done and the results aren‘t back yet. 

GALANTER:  Yes.  But normally, in a discovery packet, there would be something in the report that would say toxicology pending.  Normally in those medical reports, when medical files are turned over, there is something saying that the file that‘s been turned over is incomplete.  My understanding is that that is not the case in this particular test. 

The other thing that bothers me is that when Mr. Nifong was interviewed by “Newsweek,” it seemed that he already had a result, so if he had a result or he had some indication, why wouldn‘t that report have been turned over to the defense, which leads me to believe, Susan, that it does not exist and that test was in fact never done. 

FILAN:  So how big a deal is it? 

GALANTER:  Oh, I think it‘s huge.  What you‘re going to have now is the whole prosecution theory that she was under a date rape drug, that‘s why she couldn‘t properly identify the guys, that‘s why she kept changing her story, all that now goes out the window, and it‘s one less thing that the prosecutor has to prosecute this case with. 

FILAN:  OK, Norm, I‘m going to ask you basically the same question.  How big is a deal is it if these aren‘t missing, but I‘m also going to ask you, why wouldn‘t these tests have been performed? 

NORMAN EARLY, FORMER DENVER DISTRICT ATTORNEY:  Well, obviously whoever made this decision was probably the same nurse.  The same nurse who says that the bruises that she saw on the victim were consistent with someone who had been sexually assaulted.  That person decided based upon the presentment of the victim at the hospital, that such toxicology tests were not necessary.  I‘m not sure how big a deal it is. 

I do know that when “Newsweek” says Nifong hinted at it, what in the world does hinted at having a test mean?  Was that something that was interpreted by the “Newsweek” reporter?  Is that what Nifong actually said?  I mean I think that what happens oftentimes is we take these things and we blow them up and we blow them out of context, to the extent that they take on a life of their own...

FILAN:  OK, Norm...

EARLY:  ... and we believe them.  May not necessarily be the case. 

FILAN:  Fair enough.  But let‘s assume it was a reasonable inference drawn from that reporter based on that interview.  Go with me on that assumption for a minute and he intimates or hints or indicates that he believes that this accuser was under the influence of a date rape drug, and now we find out that yes, blood was drawn during the rape exam, but no, there were not toxicology tests performed.  What say you, Norm? 

EARLY:  Well, you know, to my way of thinking, Mr. Nifong did not have the case at that point, the same nurse, the hospital, those people, and you don‘t want to be putting victims of sexual assault in a position in this country like they used to be where they had to pass a lie detector test, that they had to pass a toxicology test.  There were all these barriers to them gaining access to this criminal justice system. 

They should have a right to have their case redressed in the system.  And a sane nurse should have the right to make a decision as to whether or not she believes that this person deserves or should have a toxicology test and that‘s what she did and she‘s a trained professional. 

FILAN:  And Norm, you know I agree with you on your general points, but we also know that when the officer responded to the Kroger‘s because the other woman—the other dancer that was with the accuser said I‘ve got a woman in the car passed out drunk.  The officer responds and calls it initially a drunk call.  It wasn‘t until later that she indicates that she had actually been raped.

Instead of going to the drunk-tank or to the local lock-up, she went to the hospital instead.  So given that, that being that 911-tape is going to come in, the prosecutor is going to have to play it or you know heaven forbid, the defense will.  You know where do we go with that?

(CROSSTALK)

FILAN:  And before you answer that, let me just jump to Larry for one second.  Larry, we know that blood was drawn at the hospital.  We also believe right or wrong, but we believe based on what Yale is telling us that there aren‘t going to be toxicology results.  Can we still get them now from that blood that was drawn that night? 

KOBILINSKY:  I don‘t think so.  First all, these drugs once they enter the body, they‘re metabolized and you don‘t see that same chemical in the blood and all we have are tubes of blood that have been collected for DNA and for serological testing.  What we should have looked at—what they should have looked at is urine because up to 72 hours you can do tests to look for the breakdown products of these drugs.  That would have worked. 

FILAN:  All right, Yale, so let‘s say you‘re right.  We‘re never going to find out if she was under a date rape drug or she was intoxicated that night.  Do you think that‘s a fatal blow to the prosecution‘s case? 

GALANTER:  No.  Susan I mean, you know listen, Norm is 100 percent correct in terms of women‘s rights.  I mean women can go into court, point a finger at an accuser and say this boy or these boys raped me, and if a jury believes her word, these boys can be convicted. 

The D.A. does not need DNA, doesn‘t need serology.  The problem that we have in this case, Durham is a very small community.  Mr. Nifong gave over 70 interviews, promised the public bruising, vaginal trauma, date rape drugs, or at least inferred those things, and now if a jury comes into that Durham courtroom, 12 people are expecting things, if he can‘t produce them, he‘s going to start this trial behind...

FILAN:  But I don‘t think that‘s the real problem...

GALANTER:  ... the starting line as opposed to at the starting line. 

FILAN:  The real problem isn‘t going to be do we have jurors that are going to be expecting things because they were promised by the district attorney on TV, because that can all be weeded out at voir dire.  Norm, the real problem that may exist for the prosecution is that they are going to hear through the other dancer, they‘re going to hear through this 911-call, they‘re going to hear through first responding officers that they initially thought this person was a drunk.  What‘s that going to do to the state‘s case?   

EARLY:  You know, Susan, we take our cases as we find them and we can‘t manufacture evidence.  What prosecutors attempt to do is look at the evidence they have and see how it meshes.  If it meshes in a fashion that the prosecutor believes that this case should go forward because that prosecutor believes that this crime has occurred, you go for it.  Now, I‘m telling you what you‘re explaining right now could well be a problem for Nifong.  But then on the other hand, he may have answers to this that we just don‘t know. 

One of the problems here is that we don‘t know how all this—how this fits into his case, but one of the things that we have to presume is that Mike Nifong is a man of integrity and that he believes in his case and that he‘s not doing anything malicious here.  And I think it‘s wrong when defense attorneys, and I‘m not talking about you, Yale, because I think you‘ve been very careful not to engage in this kind conduct, but when they start throwing everything they can at the victim and throwing everything...

(CROSSTALK)

EARLY:  ... they can at the prosecutor as if though—they‘re the bad guys here...

FILAN:  Right.

EARLY:  These are people trying to do their best under difficult circumstances.   

FILAN:  Exactly.  And I suppose...

GALANTER:  Susan...

FILAN:  ... in the end the prosecutor could argue to the jury, she may have looked drunk, she may have looked like she was drugged, we‘ll never really know, but it also could be that she was so traumatized by the assault that that‘s how she responded.  She basically responded in a way that looked like she was intoxicated but it was actually shock. 

Without those results, I suppose that would be a fair argument.  Yale Galanter, Norm Early, Larry Kobilinsky, as always, thanks so much for coming on the program. 

Switching gears—nearly a year after Natalee Holloway went missing, another arrest in the case, this time in Holland where police are holding a young man who was working in the hotel where Natalee was staying.

And Dr. Jack Kevorkian serving 10 to 25 years for second-degree murder for helping a patient commit suicide.  Now his attorney wants him to get out of prison early because he‘s dying.  We‘ll talk to his attorney coming up. 

Plus, Attorney General Alberto Gonzales suggests that reporters who print classified information could themselves be prosecuted. 

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

(COMMERCIAL BREAK)

FILAN:  Big news in the Natalee Holloway investigation, a new arrest, this time in the Netherlands.  Authorities are holding a young man by the name of Guido Wever.  He who worked in the hotel where Natalee was staying and is now suspected of assisting in her murder. 

NBC‘s Michelle Kosinski has more. 

(BEGIN VIDEOTAPE)

MICHELLE KOSINSKI, NBC NEWS CORRESPONDENT (voice-over):  This time last year, Natalee Holloway was getting ready for her high school graduation trip to Aruba.  Her friends last saw her leaving a bar in Aruba with three young locals, including Joran van der Sloot, who‘s been arrested and released as the search for Natalee continues. 

Authorities in Holland aren‘t confirming anything, but attorneys in the case say 19-year-old Guido Wever, a casino dealer at the hotel where Natalee stayed in Aruba, is now under arrest.  Wever‘s attorney says his client is under suspicion of assisting in Holloway‘s kidnapping and murder. 

GERARD SPONG, GUIDO WEVER‘S ATTORNEY:  There are some witnesses who are giving a statement that he could be seen as a suspect.  But I think their statements, their testimony is easily—we can fight it easily. 

KOSINSKI:  Wever‘s attorney says his client never even met Natalee.  Wever is a friend of van der Sloot‘s.  Van der Sloot‘s attorney says police in Aruba questioned Wever last year, after there was talk that he had scratches and bruises on his body and he says Wever left for Holland soon after. 

JOE TACOPINA, ATTORNEY FOR JORAN VAN DER SLOOT:  He worked at the Holiday Inn and the Holiday Inn is the location where Natalee was staying and it‘s also a location where we have some evidence via the hotel manager, Robert James (ph), that, you know, Natalee may have returned after 3:00 a.m. that night. 

KOSINSKI:  Still, a mystery.  But to Natalee‘s mother, this is something new a year later. 

BETH TWITTY, NATALEE HOLLOWAY‘S MOTHER:  Yes, that‘s just encouraging to me to know that there‘s still individuals out there who possibly have information that knows what happened to Natalee and where she may be.  Marking the year means absolutely nothing to us.  It‘s marking every day that‘s overwhelming to us.

(END VIDEOTAPE)

FILAN:  That was NBC‘s Michelle Kosinski. 

Joining me now on the phone is editor of “Aruba Today” newspaper, Julia Renfro, and Aruban attorney Vinda De Sousa, who once represented Natalee‘s family in Aruba, former FBI profiler and MSNBC analyst, Clint Van Zandt.  Thanks Clint for joining us.

CLINT VAN ZANDT, FORMER FBI PROFILER:  Hi, Susan.

FILAN:  Julia, what can you tell us about this new arrest? 

JULIA RENFRO, “ARUBA TODAY” EDITOR (via phone):  Well we know that the authorities have been working hard on this with more than a dozen detectives on this case every day, and they have been going through different transcripts as well as individuals who have phoned in on tips based on a recent airing of a reenactment of Natalee‘s last days on Aruba.  And somehow this young man‘s name has come up, but this is not the first time.  He has brought—he was brought in several times last year, not only in Aruba, but in Holland as well, to give what we would call witness statements based on his accounts for that time that Natalee was on the island, as well as after her disappearance. 

FILAN:  Do you know, Julia, if there‘s any truth to the rumors that he had scratches on his body after Natalee had disappeared? 

RENFRO:  No, I do not.  I do know that I did hear the rumors early on last year, and those scratches and bruises were actually attributed to Joran van der Sloot, which turned out to be absolutely incorrect after speaking to his classmates and his teachers.  So, you know, the possibility of those rumors being about somebody else is always possible, but I myself have a colleague that works here who met with this young man who didn‘t see anything unusual at all. 

FILAN:  And Vinda De Sousa, what can you tell us about this latest and newest arrest?  I guess he‘s now the tenth person to be arrested in connection with Natalee Holloway‘s disappearance. 

VINDA DE SOUSA, ARUBAN ATTORNEY (via phone):  Yes, hi Susan.  His name, this new suspect‘s name came up early in the investigation.  It appears to be that he‘s a very good friend of Joran van der Sloot‘s, and worked as a dealer in the casino where Joran van der Sloot usually hung out and he was working on that night that Natalee Holloway disappeared.  He was questioned right—the day after Natalee‘s disappearance he was questioned by the police, the local authorities, as a witness, and what seemed very odd at the time is that shortly after that he resigned as a dealer in the casino and left quite suddenly to Holland, which prompted the authorities here to request the authorities in Holland to question him again.  I think it happened twice.  He was questioned twice as a witness.  But...

FILAN:  Clint...

DE SOUSA:  ... they have had an eye on him for a longer time and now they went back to all the transcripts and I agree with Julia, probably on newly obtained tips after this TV reenactment program...

FILAN:  I‘ve got to go to Clint. 

DE SOUSA:  ... they went back and found enough probable cause at least at this point in time to have him arrested. 

FILAN:  Clint, what do you make of it?  I mean he‘s now the tenth person arrested in this case. 

VAN ZANDT:  Yes.

FILAN:  Do you think he‘s being arrested really as a suspect or more as a witness?

VAN ZANDT:  Well, we‘ve seen the Aruban police use this kind of catch and release technique with everyone before.  The interesting thing, as you pointed out early on, he‘s charged with aiding, abetting, assisting, whatever the terminology is, so if you assist someone, that means somebody else is ultimately responsible and you helped them, number one. 

And number two, as we‘ve just talked about, Susan, this guy was interviewed three times in Aruba, twice in Holland.  What I question right now is has his story changed as many times as people allege that the stories of Joran van der Sloot and the Kalpoe brothers have changed?  I mean is this just something people on the island do, they change their stories all the time or does he have something significant to offer?  That‘s the question.

FILAN:  Right.  And joining me on the phone is Joe Tacopina, who of course represents Joran van der Sloot.  Joe, I know that you probably think this clears Joran, but if he‘s being arrested as a witness, who maybe assisted Joran, this might not really help your client as much as you might think. 

TACOPINA:  Well, I don‘t think it clears Joran.  I don‘t think it implicates Joran.  I don‘t think anything.  I mean Clint just said it best, the catch and release sort of technique is something they use the way you know we here in the states (INAUDIBLE) interrogate people.  I mean it‘s almost a method that—listen, I don‘t put any stock in anything that‘s done from an investigative standpoint until it accomplishes something and we haven‘t seen that yet.

(INAUDIBLE) implicate Joran, Susan, because if they were arresting him as an aider and abettor to Joran, they would have arrested Joran with him, so I mean there‘s no evidence of Joran‘s involvement in this, because he wasn‘t involved in Natalee‘s disappearance.  They spent 11 months trying to fit that square peg into a round hole and didn‘t get there, and I think they‘re finally, refreshingly moving in other directions to try and see if they can resolve this case...

(CROSSTALK)

TACOPINA:  ... and for everyone‘s sake, Susan, I hope they do. 

FILAN:  Joe, do you think—I mean we know that he‘s fighting extradition.  Do you think he‘s going to actually be extradited? 

TACOPINA:  You know, the law certainly in the Netherlands is not my area of expertise, but I will say that the—you know Aruba is a constituent of the kingdom of the Netherlands, so I—you know it‘s not as if they‘re trying to pull him in from a totally separate country.  I mean, they‘re all within the, you know, under the purview of the kingdom of the Netherlands, so I would think he‘d be able to be extradited.

But I also know that the prosecutor has to show the judge good cause to bring him here, and for once, we may be able to see a little sneak preview of what it is they think they have to want to speak to this individual for a—now I think what, fourth time.  So you know, it‘s all very interesting, and again, I don‘t know if there‘s any involvement or not, I just you know hear the rumors that are out there, but none of this information we‘re talking about right now, Susan, is new to the Aruban law enforcement.  They‘ve known this since last June. 

FILAN:  Joe Tacopina, Clint Van Zandt, Julia Renfro, Vinda De Sousa, thanks so much for joining us. 

TACOPINA:  Thanks.

FILAN:  Coming up, Dr. Jack Kevorkian‘s attorney asks Michigan‘s governor to let him out of prison early because the so-called Dr. Death is himself going to die within a year.  We‘ll talk to his attorney next.

And later, attorney general suggests that he might prosecute reporters who write about classified information. 

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

Police need your help finding Raymundo Robledo.  He‘s 49 years old, five-seven, and weighs 180 pounds.  He was convicted of sexual assault and he hasn‘t registered with the state.  If you have any information on his whereabouts, please contact the Texas Department of Public Safety at 512-424-2000.  We‘ll be right back. 

(NEWS BREAK)

(COMMERCIAL BREAK)

FILAN:  The man known as Dr. Death, Jack Kevorkian, may be close to death himself and his attorney is now asking that he be let out of prison early.  Kevorkian is serving a 10 to 25-year sentence for second-degree murder and delivery of a controlled substance in connection with the death of Thomas Youk.  Youk suffered from Lou Gehrig‘s disease.  His death was videotaped and showed on CBS‘ “60 Minutes”. 

Dr. Kevorkian called it assisted-suicide.  The court called it murder.  According to motions filed last week, during the course of his over seven-year incarceration his health has deteriorated markedly and now it is apparent that Dr. Kevorkian has most likely less than one year to live.  Dr. Kevorkian suffers from a variety of maladies, all of which have been exacerbated as a result of his lengthy incarceration.  Dr. Kevorkian‘s personal physician has indicated that his life expectancy is less than one year.

Kevorkian has been denied parole three times already.  Mayer Morganroth is Dr. Kevorkian‘s attorney and he joins me now.  Mayer—is it Mayer Morganroth?

MAYER MORGANROTH, ATTORNEY FOR DR. KEVORKIAN:  Yes, it is. 

FILAN:  Thank you so much for joining us. 

MORGANROTH:  My pleasure.  Thank you. 

FILAN:  Now you‘ve filed this motion three times before.  This is your fourth time.  What—and each time you say he only has a year left to go, but he‘s survived these last three years.  What‘s different now from the other times you filed the same motion? 

MORGANROTH:  Well, first of all, that‘s not correct.  He actually is up for parole in June of next year.  These motions really have been filed, although they‘re labeled, a form label for a commutation of sentence, which is different than a parole.  Secondly, the previous motions were not filed on the basis that he had less than one year to live.  Those motions were filed on the basis that he was in ill health and also that it was enough time served for him.  This particular motion is a change of circumstance, not the same as the previous ones.  Now his physician states that he will live most likely less than a year, and his health has exacerbated in the downward direction...

FILAN:  OK...

MORGANROTH:  ... since the previous motions. 

FILAN:  Let me just clarify.  You‘re saying in this motion, you‘re not asking the parole board to let him out early.  You‘re asking the governor to commute his sentence?  Is that what you‘re saying? 

MORGANROTH:  That is correct. 

FILAN:  How many times has a governor commuted a sentence in Michigan in your knowledge? 

MORGANROTH:  This governor...

FILAN:  It‘s very rare, isn‘t it?

MORGANROTH:  This governor, very rare, but generally when the governor does, it‘s on the basis that the particular inmate has less than a year to live. 

FILAN:  And hasn‘t this governor stated that she‘s most likely—or always defers to the board of parole and even though this isn‘t a parole decision, it‘s a commutation decision, since parole has consistently denied it, she won‘t grant it either. 

MORGANROTH:  Well she has said in the past that they recommended—the parole board against commutation of sentence and of course they have no authority to grant it or deny it.  She has said, however, that generally she defers to their opinion.  However in this instance, I think they will recommend that he be commuted in sentence and I think that in any event, she will do so on this occasion, because the one thing missing in the other ones, which is now present, is the fact that most likely he won‘t live a year. 

FILAN:  Counselor, let me play a little bit of sound from your client and I‘m going to ask you to respond to that. 

MORGANROTH:  Surely. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  There is no rational, get that, rational argument against helping the suffering human whose suffering cannot be curtailed or ended. 

(END VIDEO CLIP)

FILAN:  He was basically convicted of second-degree murder, although he claims that it was assisted-suicide, he was actually helping somebody.  Does he feel remorse now?  Does he still believe in euthanasia?

MORGANROTH:  Well he definitely believes in assisted-suicide and definitely believes that a person has the right to decide whether or not their life should end with dignity when they‘re (INAUDIBLE) pain and suffering and terminal.  That hasn‘t changed.  The thing that has changed is he will no longer do the act himself.  He will try and get the law changed but he will no longer perform the act. 

FILAN:  Is he sorry that he did this assisted-suicide or second-degree murder on national television? 

MORGANROTH:  Well, I don‘t think he‘s sorry that he did it on national television.  And I don‘t think he‘s sorry that it was actually performed.  He‘s sorry that he did it because it was against the law and he wants the law to be changed and that‘s what he‘ll work towards having done.  As you know, it‘s been changed since then in Oregon. 

Canada is talking about it.  England has got a bill proposed on the floor in order to change the law.  The Netherlands has already enacted assisted-suicide provisions and euthanasia, so has Switzerland, and it goes on and on.  Other states are now proposing it, as well as California. 

FILAN:  Yes.  Yes. 

MORGANROTH:  So...

FILAN:  It‘s certainly a controversial topic that could be debated for many, many years to come.  What you‘re doing does sound to me like a veiled motion to modify his sentence and not a request to commute it, but you‘re certainly doing an excellent job as his lawyer and we thank you very much for joining us on the program. 

MORGANROTH:  Well thank you, but it‘s really not to modify.  Modify goes to the court...

FILAN:  And we‘ve got to wrap. 

MORGANROTH:  Right.  Thank you. 

FILAN:  You‘re welcome.  Coming up, Attorney General Alberto Gonzales says the Justice Department is investigating “The New York Times” for publishing classified information on a controversial spy program. 

And later, the FBI raids a congressman‘s office on Capitol Hill in connection with a bribery investigation.  You are never going to believe where the police say he hid the money. 

And your e-mails send them to abramsreport@msnbc.com.  Remember to include your name and where you‘re writing from.  I respond at the end of the show. 

(COMMERCIAL BREAK)

FILAN:  Coming up, will the Justice Department file charges against journalists for publishing leaked intelligence secrets? 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

ALBERTO GONZALES, ATTORNEY GENERAL:  And we have an obligation to enforce the law and to prosecute those who engage in criminal activity.  If the law provides that that conduct is in fact criminal and the evidence is there to support it, we have an obligation of course to look at that very seriously. 

(END VIDEO CLIP)

FILAN:  Attorney General Alberto Gonzales suggesting this weekend that reporters who publish national security secrets could face prosecution themselves under existing laws.  Gonzales saying the Department of Justice was deciding a proper course of action to take with “The New York Times”.  Last December, the paper reported that the National Security Agency was monitoring terror-related calls between the U.S. and other nations, the domestic spying program.  Well could these journalists who wrote that story or the newspaper that published it be prosecuted themselves? 

(BEGIN VIDEO CLIP)

GONZALES:  There are some statutes on the book, which, if you read the language carefully, would seem to indicate that that is a possibility.  We have an obligation to enforce those laws.  We have an obligation to ensure that our national security is protected. 

(END VIDEO CLIP)

FILAN:  Under the 1917 Espionage Act, publishing classified information about intelligence programs that seek to capture enemy communications is a federal crime.  Lucy Dalglish is executive director of the Reporters Committee for Freedom of the Press.  Steve Presser is a law professor at Northwestern University.  Thank you for joining us. 

LUCY DALGLISH, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS:  You‘re welcome...

FILAN:  Lucy, is the Department of Justice...

STEVE PRESSER, NORTHWESTERN UNIV. LAW PROFESSOR:  Happy to be here.

FILAN:  ... just trying to enforce laws that are on the books or are they going after journalists now? 

DALGLISH:  Oh, there‘s no question that this administration and this Justice Department has become much more aggressive about going after journalists.  Whether it‘s been threatening—whether they‘ve been threatening to prosecute journalists for publishing information under the Espionage Act or whether they‘ve been aggressively pursuing journalists‘ confidential sources in the investigations all across the country.  This has been a very, very active year. 

FILAN:  But aren‘t they just trying to keep us safe?  Isn‘t this just keeping our national security up?  Aren‘t they just basically protecting us and not targeting journalists or newspapers? 

DALGLISH:  You know, there‘s a delicate balance that we have to engage in as American citizens and this is the situation, yes, we need to keep our nation safe, but we also need to provide enough information to the country so that we can make educated decisions, plus we need to protect the right of free speech. 

Now these issues, since 1917, through how many wars and military actions, what, at least a half dozen of them, the government has never found it necessary to criminally prosecute the journalism community, any reporters, for revealing classified information.  It is not—it was not necessary then, it is not necessary now. 

FILAN:  Let me bring in Steve Presser.  Steve, I‘m going to play a bit of sound from the attorney general.  I‘m going to ask you to respond to that. 

PRESSER:  Sure. 

(BEGIN VIDEO CLIP)

GONZALES:  I understand very much the role that the press plays in our society, the protection under the First Amendment, we want to promote and respect the right of the press, but it can‘t be the case that that right trumps over the right that Americans would like to see, or the ability of the federal government to go after criminal activity, and so those two principles have to be accommodated. 

(END VIDEO CLIP)

FILAN:  So what are we to think?  I mean, did the journalists or the newspaper do something wrong or did they just get leaked information that was improperly leaked and they published it and should they be prosecuted for this?  Is this a national security issue or is this a freedom of the press issue? 

PRESSER:  Well it may well be a national security issue and what we‘ve got here is the attorney general I think quite candidly acknowledging that we have two important principles, the freedom of the press and national defense that may be in conflict.  A difficulty here is that no one has the right to publish classified information, no one has the right to endanger the national defense. 

It is true that there have been very few, if any, prosecutions of reporters under the 1917 Espionage Act, but that‘s because until recently, I think most reporters understood that national defense secrets really shouldn‘t be revealed.  And we‘re now strangely enough, in a climate where there is massive distrust of the administration, and I think perhaps some sensitive information that shouldn‘t be published is being published. 

FILAN:  So are journalists...

PRESSER:  It should be...

FILAN:  ... doing something different now?  Are journalists doing something that they essentially haven‘t done since 1917 or is law enforcement looking at journalists differently now in a way that they haven‘t since 1917?  What‘s changed...

PRESSER:  Well, I don‘t think there‘s any difference in the way that the administration looks at journalists.  There have been conflicts between freedom of the press and the criminal processes, you know, as far back as I can remember.  This used to happen a lot during the Watergate era, and it comes up from time to time.  I think really there‘s very little to worry about at this point, and I think what the attorney general said may be blown a little bit out of proportion. 

It‘s not at all clear that any reporters are going to be prosecuted at this point, but if a reporter does reveal sensitive national defense information, you know troop movements, breaking of codes, other things of that nature, they ought to be subject to the same laws that apply to other citizens.

FILAN:  Right.

PRESSER:  The First Amendment doesn‘t give you a right to disobey the law. 

FILAN:  Lucy, let me go to you.  I‘m going to put up the language of the statutes so our viewers can see what we‘re actually talking about here.

It is whoever knowingly and willfully communicates or publishes or uses in any manner prejudicial to the safety or interest of the United States any classified information concerning the communication intelligence activities of the United States shall be fined under this title or imprisoned not more than 10 years or both.

Lucy, how is a journalist supposed to know if they‘re breaking the law or not?  Obviously, they shouldn‘t break the law.  They‘re not supposed to break the law.  But how do you know when you‘re going to be prosecuted or not?

DALGLISH:  Well, you know you just rely on the facts that it has not been something that we in this country have done in the past.  You are just relying on past practice, I think.  The law is very vague.  I don‘t think it would withstand First Amendment scrutiny, as related—if it was ever prosecuted. 

And you know, you don‘t know, but there are incredible stories that have been done over the last 15, 20, 30 years, that have used classified information and as a result the public is better off.  The Pentagon papers case, the Pentagon papers told us about Vietnam. 

FILAN:  Right.

DALGLISH:  There have been stories done about classified information...

FILAN:  Right.

DALGLISH:  ... on waste and fraud in government.

FILAN:  Yes.

DALGLISH:  And...

FILAN:  We could debate this all day.  Lucy Dalglish and Steve Presser, thanks so much for joining us. 

DALGLISH:  You‘re very welcome.

FILAN:  Coming up, a Louisiana congressman under investigation for bribery.  And you are not going to believe where he allegedly stashed the money.  Let‘s just say, it gives new meaning to the phrase cold cash. 

And later, every night, Dan gives us his opinion about legal issues, but would you want him as a juror deciding your case?

And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing sex offenders before they strike again.  Today we‘re in Texas.

Police are looking for Genaro Juarez.  He‘s 62 years old, five-foot-six.  He weighs 168 pounds.  He was convicted of indecent sexual contact with a child and he hasn‘t registered his address with the state.  If you‘ve got any information on his whereabouts, please contact the Texas Department of Public Safety at 512-424-2000.  We‘ll be right back.

(COMMERCIAL BREAK)

FILAN:  Democratic Congressman William Jefferson from Louisiana seems to be giving new meaning to the term cold cash.  Court documents just released show Jefferson allegedly accepted $100,000 in cash, all part of a plan to bribe a high-ranking Nigerian official to ensure the success of a business deal there.  The FBI claims he hid most of the money in his freezer, hiding stacks of $100 bills in food containers and wrapped in aluminum foil.  The FBI raided his congressional office this weekend, looking for evidence of bribery, conspiracy, and wire fraud.  Jefferson has not been charged with anything yet.  He made this statement just moments ago. 

(BEGIN VIDEO CLIP)

REP. WILLIAM JEFFERSON (D), LOUISIANA:  There are two sides to every story.  There are certainly two sides to this story.  There will be an appropriate time and forum when that can be explained and explicated, but this is not the time, this is not the forum and operating on advice of counsel, I will not get into facts.  On the second matter, with respect to the search in my office the other day, I think it represents an outrageous intrusion into the separation of powers between the executive branch and the congressional branch and no one has seen this in all the time of the life of the Congress. 

(END VIDEO CLIP)

FILAN:  Managing editor of “Congressional Quarterly,” David Hawkings joins us now. 

DAVID HAWKINGS, “CONGRESSIONAL QUARTERLY” MANAGING EDITOR:  Nice to be with you. 

FILAN:  David, it looks pretty bad that they found the cash hidden in his freezer, right? 

HAWKINGS:  It does.  It‘s certainly a very dramatic illustration.  It seems like something out of a TV who done it. 

FILAN:  I mean he says there‘s two sides to everything.  It looks like there‘s the inside and the outside of this freezer. 

HAWKINGS:  I guess so or the—and the inside and the outside of his congressional office. 

FILAN:  Exactly.  And he says that the raid is unprecedented.  Do you know anything about that claim? 

HAWKINGS:  Well, that‘s what the historians at the Capitol are telling us today.  That there has never before been a raid of a congressional office in Washington.  Actually, Mr. Jefferson‘s office in New Orleans was previously raided and the historians are saying that actually might have been the historic first, the time that they went to his New Orleans office and looked around. 

But this is a big deal if you‘re a member of Congress, to actually have your workplace subject to search.  There‘s a bit in the Constitution that says this isn‘t supposed to happen, that they‘re supposed to be—members of Congress are supposed to be free from being questioned about their official actions by the executive branch... 

FILAN:  Does it say anywhere in that document that it‘s also not supposed to happen that they take $100,000 in bribe money, in cash and stick it in their freezer and call that official business? 

HAWKINGS:  I think that is—I‘m not sure it exactly says that in the Constitution, but clearly that‘s implied. 

FILAN:  Let me just ask you, what‘s the story about taking the money to bribe a Nigerian official?  Do you know anything about that? 

HAWKINGS:  Well, I think what—the details of how Mr. Jefferson would have gotten knit up with this Nigerian official and this high tech company, which is based in Louisville, which is not obviously not a part of the country that he represents, we‘re not exactly sure how he allegedly came to befriend this Louisville company, but what we do know is this, which is that he is one of the most ardent advocates of free trade on the House Ways and Means Committee, which is the committee that writes the trade legislation in Washington. 

He‘s also a senior member of the Congressional Black Caucus and as such, has been involved in trying to promote business with sub Sahara Africa and with Africa.  So in that sense, it would stand to reason that the Nigerian government might have known him and the companies that are advocating trade overseas would have come to know him. 

FILAN:  So outrageous.  Let me just ask you one quick question.  Is it true on the recorded calls that he at one point joked that it‘s as if the FBI—the way we‘re talking in code, it‘s as if the FBI is watching and listening? 

HAWKINGS:  That is reportedly out there, that he appeared to suggest that the conversation—he suspected that the conversation might have been taped.  That is out there.  I don‘t have that independently. 

FILAN:  Unbelievable.  Hey, David Hawkings, thanks so much for joining us. 

HAWKINGS:  Nice to be with you.

FILAN:  Coming up, how‘s Dan doing in court today?  An update after the break. 

(COMMERCIAL BREAK)

FILAN:  Time now for “Your Rebuttal”.  Many of you are still writing in about the Duke lacrosse rape investigation. 

From Albuquerque, Lisa writes, “If the D.A. has charged the three men based solely on her statement, with no forensic or physical evidence to tie them to any crime against her person, Mr. Nifong should face some serious consequences.  I believe he should be removed from the office by the attorney general of the state of North Carolina and prosecuted.  He should spend some time in jail for malicious prosecution.” 

Well, if that‘s the only reason you want him removed from office, Nifong might have quite a bit of company since many rape trials are based solely on the victim‘s testimony. 

And from Missouri, Karen Gende, “Please tell Yale Galanter that the men accused of the Duke rape are not boys.  Using boy to describe 20 year olds makes it seem he wants us to visualize them as 12 year olds.”

Good point, Karen.  Are you listening, Yale?

Last week, we played parts of “Dateline NBC‘s” undercover operation targeting potential sexual predators.  Virgil Pfaulch writes, “Thank you for taking a no-nonsense approach to catching these predators.  I think Mr.  Chris Hansen is one of the most professional reporters I‘ve ever seen.  How he keeps from wanting to throw these people through a window is beyond me.” 

Last week, Dan also looked at the current search for Jimmy Hoffa‘s body on a Michigan horse farm.  Ronnie Wilson writes from Pennsylvania “I predict the FBI will catch Osama bin Laden shortly after they find Jimmy Hoffa.” 

Coming up tomorrow, he passes judgment on this show every day, but would you want him on your jury?  Apparently not.  That‘s right.  Dan got called and brought our cameras along to record his experience, but he wasn‘t picked for a jury.  He‘ll be back with us tomorrow.  And we‘ll show you what his day in court was like.

That does it for us today.  Coming up next, “HARDBALL” with Chris Matthews.  Good-bye. 

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

END   

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