updated 5/24/2006 12:37:59 PM ET 2006-05-24T16:37:59

Guests: Susan Filan, Yale Galanter, Susan Chasson, Carolyn Costello, Eddie Jordan, Pamela Metzger, David Boaz, Tom Lantos

DAN ABRAMS, HOST:  Coming up, the Duke rape case looking worse for prosecutors than ever.  New evidence that could prove the accuser originally told police she was not raped.  And the medical report may not help prosecutors either.  I say if it‘s all true it‘s time to drop the charges. 

The program about justice starts now. 

Hi everyone.  I‘m back from jury duty.  I‘ll show you what that was like later in the show, but first up on the docket, the Duke University rape investigation where defense sources are telling us that the 1,300 pages of material handed over to them Friday makes them that much more confident that this case is a terrible hoax, their words.  They say police reports show the accuser changed her story more than once. 

She initially never mentioned to the police officer who picked her up at the Kroger grocery store that she was raped, much less raped by three members of the Duke lacrosse team.  And after being taken to a psychiatric hospital in Durham, the accuser reportedly changed her story saying she was raped.  From there, she was bought to Duke University Hospital.  And once again, the defense says she changed her story, saying she wasn‘t raped. 

They say this is just one of many inconsistencies in her account.  Defense sources are also confirming to us that the medical report indicates that the accuser suffered no vaginal or anal tearing, just what was described as swelling in the area.  Remember we reported that to you on Friday.  And there‘s more.

Defense sources telling us that after the first round of DNA testing came back without a match to any members of Duke men‘s lacrosse team, the accuser told police she had sex with three men the weekend before the party and that the semen from any of them could be found in her body.  She even gave the police their names, one of them her boyfriend, the other two men who regularly drove her to and from her exotic dancing gigs.

“My Take”—if all of this is true, add that to everything else we know, defense alibis, no relevant DNA when the authorities said they would find it.  Photos from the party, the faulty identification process and the consistency of the young men‘s stories, take all that together and I say it‘s time to drop the charges.  Unless the D.A. has one or more of the players who were at the party ready to testify against the others, this case is cooked. 

But the D.A. would be obligated to tell the defense if they had those witnesses.  From what I‘ve been told, the prosecutors don‘t have that witness or witnesses at least so far.  What they do have is an inconsistent account from the accuser, whose story apparently does not even jibe with that of the second stripper at the party. 

Joining me now criminal defense attorney Yale Galanter, MSNBC legal analyst and former prosecutor Susan Filan.  All right, look, I‘m sure that Yale is going to agree with me about this, but Susan, I want to get your take.  Do you disagree with what I just said?

SUSAN FILAN, MSNBC LEGAL ANALYST:  Yes, I do, Dan.  It‘s certainly not over yet.  It is not out of the ordinary for a victim of sexual assault to change her story.  It is a traumatic event.  Take it as true in this case, if it is true, it is a traumatic event, and you have to find somebody that you are comfortable to disclose this to.  You don‘t just blurt out to the first person you see—let‘s say it‘s some burly disapproving pessimistic cop just staring down at you, thinking you‘re a drunk, and you know that you have been raped and you‘re traumatized, that may not be the person you choose to tell. 

Then you get taken to a psych ward and you realize, wait a minute, they clearly misunderstand what‘s happened.  I‘d better tell somebody.  You start to tell somebody, you get taken over to the hospital.  You get some unsympathetic attendant who you don‘t feel comfortable talking to, you wait until you either get a kinder nurse or a gentler cop and then you start telling, so the inconsistencies alone to me...

ABRAMS:  Wait...

FILAN:  ... don‘t kill this case. 

ABRAMS:  No, wait, all right, but if I had just said the inconsistencies alone that would be a response to my question.  Unfortunately, what I said was, taking all of the circumstances together, not just the inconsistencies, the fact that the medical report is not the smoking gun that we once thought it might be...

FILAN:  Dan...

ABRAMS:  ... the fact that you‘ve got the problems with the identification.

FILAN:  Let‘s do it one at a time.

ABRAMS:  No, no, we‘re not going to do it one at a time, Susan, because that‘s what defense attorneys like to do and you prosecutors always say we have to look at the totality of the circumstances, so I‘m going to look at the totality of the circumstances...

FILAN:  But Dan, the medical report...

ABRAMS:  ... and I‘m going to ask you the totality of the circumstances, does that tell you it‘s time to drop the charges? 

FILAN:  No, it doesn‘t tell me it‘s time to drop the charges.  The medical report talks about redness in the area.  It is very rare to find actual lacerations or tears.  That is just typically not the evidence that‘s consistent in a rape case.  Redness doesn‘t mean nothing happened.  So you‘ve got inconsistencies.  You‘ve got redness. 

You‘ve got her account.  There are clearly defenses that these gentlemen can raise.  This is not a case that is not defensible.  It‘s a very defensible case...

ABRAMS:  I‘m not talking about defenses, right...

FILAN:  ... make it a case that the prosecution has to drop, no, it doesn‘t. 

ABRAMS:  This is the affidavit for the search warrant, Yale.  This is the nurse—this is in the affidavit from the search warrant.

A forensic sexual assault nurse and physician conducted an examination.  Medical records and interviews that were obtained by a subpoena revealed the victim had signs, symptoms and injuries consistent with being raped and sexually assaulted vaginally and anally.  Furthermore, the nurse stated the injuries and her behavior were consistent with a traumatic experience.

I mean look, you know my problem here is that I blame the D.A. for much of this more—I mean look, I don‘t know what has led this woman to say this.  I‘m not going to make a judgment as to whether she is making this up or not.  I am going to make a judgment that unless we find out the D.A. has more, that it is time to drop the charges.  But that search warrant application, Yale, certainly gave us the impression that there was going to be a lot more that came from this medical report.

YALE GALANTER, CRIMINAL DEFENSE ATTORNEY:  Yes, certainly in the warrant, Dan, he was not forthright in information that he should have had, because clearly, this medical report shows no vaginal injury, no anal injury, certainly nothing that is consistent with a forcible rape, which is also in the report.  Susan is right.  There is tenderness, but let‘s face facts.  She also told the police that she had sex with three different men at or near the time...

ABRAMS:  Well I don‘t know that she said that. 

(CROSSTALK)

ABRAMS:  She said that they might be able to find DNA.  We don‘t know...

GALANTER:  No, Dan...

ABRAMS:  Yes, go ahead.

GALANTER:  That‘s what she told them.  She told them that it was sex with three men at or near the time of the event.  She identified her boyfriend...

ABRAMS:  Where are you getting that information from?

GALANTER:  I‘m getting it from the defense.  I mean, you know the defense...

ABRAMS:  Yes.

GALANTER:  ... has been sharing information with me...

ABRAMS:  No, I know they share it with you, Yale.  Look, if anyone...

(CROSSTALK)

ABRAMS:  ... is in with this defense team, it‘s you.  So when you‘re saying you have not been wrong about a single thing that you have laid out for us in terms of facts.  That‘s why I want to just clarify as to where you are getting this.  It‘s too important.  Go ahead.

GALANTER:  No, I—Dan, I am totally confident in what I‘m telling you.  I‘ve had it verified by two independent sources, both who have access to the documents, both who have read the documents to me.  But that‘s really not the bombshell.  The bombshell is even if Susan is right and rape victims do.  They waiver.  They vacillate.  They‘re not comfortable.  In that, my colleague Susan is 100 percent right.  But rape victims do not go to the police and say there was somebody else in the bathroom with me.  She told the police that during this forcible rape, Kim Roberts was in the bathroom. 

ABRAMS:  Yes.

GALANTER:  When Kim Roberts was asked to verify that story, I can‘t say all the words on the air, but she told the police that that was an absolute crock of (BLANK). 

ABRAMS:  Yes.

GALANTER:  So clearly, clearly, Dan, this complaining witness has some very serious problems with her credibility, what she has told the police and why Mr. Nifong would have given the 70 plus interviews he gave, saying that her story is consistent with what the medical reports are is clearly hypocrisy on his part...

ABRAMS:  Here‘s what he said...

GALANTER:  ... because he knew that the police were saying something different. 

ABRAMS:  Here‘s what he said on this program on March the 28th

(BEGIN VIDEO CLIP)

MIKE NIFONG, DURHAM, NC DISTRICT ATTORNEY:  I am convinced that there was a rape.  Yes, sir.

ABRAMS:  And why are you so convinced of that? 

NIFONG:  The circumstances of the case are not suggestive of the alternate explanation that has been suggested by some of the members of the situation.  There is evidence of trauma in the victim‘s vaginal area that was noted when she was examined by a nurse at the hospital and her general demeanor was suggested—suggestive of the fact that she had been through a traumatic situation. 

(END VIDEO CLIP)

ABRAMS:  See Susan, my concern is that the people who were speaking to her saw that she was crying or whatever it was at the time and that maybe that sympathy came into play here as opposed to rational judgment.

FILAN:  Well I mean I think sympathy has to be part of it.  I mean I think sympathy motivates us as human beings to take action, so I don‘t have a problem with that.  And I really disbelieve that they got so carried away by their emotions that they left their reasoning faculties out of the room, so I really would have to say...

ABRAMS:  But there hasn‘t been a single piece of evidence...

FILAN:  Look...

ABRAMS:  ... that we have found out about that is consistent with a rape, apart from the fact that that‘s what she said at one time, as opposed to another time when this occurred.

FILAN:  The main problem, Dan, as you well know, is that we aren‘t in a courtroom.  We don‘t have her on the witness stand.  We don‘t have her under oath.  We do not see how the state‘s case is unfolding.  All we are seeing is bits and pieces...

ABRAMS:  But that‘s what prosecutors see in the decision making process as to whether they move forward with charges or whether they drop charges. 

FILAN:  Yes.  And what they saw was a woman who made a complaint that was backed up by the medical exam.  What we‘re taking out of this medical report to say there was no rape I think is...

ABRAMS:  No, we‘re not.

FILAN:  ... is a fallacy. 

ABRAMS:  But again, Susan, you‘re talking like a defense attorney.  I really—this is the way defense attorneys talk.  In all these cases we cover, they take an isolated piece of evidence and they say (UNINTELLIGIBLE) this doesn‘t prove the case.  That‘s not...

FILAN:  But Dan...

ABRAMS:  ... what we‘re talking about.  We are not talking about...

FILAN:  Dan...

ABRAMS:  ... the totality of the circumstances in conjunction with this new information.

FILAN:  OK, you‘re really asking me two questions.  You are asking me should this case be dropped on everything we know so far?  No is my answer.  Can this case be proven beyond a reasonable doubt?  It may be very difficult to prove it beyond a reasonable doubt at this point in the game.  I don‘t know...

ABRAMS:  You don‘t have serious questions about this case, Susan?

FILAN:  Of course I have serious questions about this case...

ABRAMS:  So that‘s a prosecutor‘s...

FILAN:  You‘re (UNINTELLIGIBLE) me asking me...

ABRAMS:  Of course I am.

FILAN:  ... should the case be dropped?  Bottom line, no.  Is this case possibly in serious trouble?  Has the district attorney seriously misstepped?  Has he committed possible errors that are violations of the canons of ethics?

ABRAMS:  I don‘t care about the canons of ethics.  I really don‘t.

FILAN:  Well...

ABRAMS:  I mean I care about whether these guys did it and whether they‘re being falsely accused or whether she is being hung out to dry unfairly.   That‘s all I care—the canons of ethics I‘ll let the lawyers dispute about later. 

All right.  Everyone is going to stick around for a minute because I want to bring in—let‘s take a quick break here.  When we come back, we‘ll talk to the president-elect of the Forensic Nurses Association about what that medical report really means.  This is the woman who will be able to tell us what does this medical report really mean.  And we‘ll talk to a local reporter who has just gotten to see the document that we‘ve been talking about and will tell us exactly what is in there.

And one New Orleans judge wants to let the defendants out of jail before their trial because they aren‘t—there aren‘t enough public defenders to represent them.  The New Orleans D.A. is not happy about it.  He joins us next.

Plus, this may be the program about justice.  Yesterday I was called to take part in the justice system.  I had jury duty.  I‘ll take you along later. 

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

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  We‘re talking about new information in the Duke University rape investigation, discovery that was turned over to the defense team.  We are learning a lot more about the prosecution‘s case and problems with that case, including the fact that the alleged victim changed her story early on about whether she was raped.  Initially didn‘t say anything about it, then said she was raped, then when questioned, said she wasn‘t raped and then apparently later said that she was. 

That we‘ve learned about the medical report.  That there was no actual tearing of the vagina, which is a significant issue in this case, the question was what is the medical report going to show.  That in conjunction of course with the defense alibis, the no relevant DNA when the authorities said they would find it, photos from the party, the faulty identification process, and the consistency of the young men‘s stories.  And I was saying before the break all of that taken together is extremely problematic and that if the D.A. doesn‘t have anything more, it‘s time to drop this case. 

Susan Chasson is president-elect of the International Association of Forensic Nurses and a certified sexual assault nurse.  Thanks very much for coming on the program.  We appreciate it. 

SUSAN CHASSON, SEXUAL ASSAULT NURSE (via phone):  You‘re welcome.

ABRAMS:  All right.  So I‘m just going to ask you to focus on your area of expertise, unlike where I was asking Susan Filan before the break to look at the totality of the circumstances.  I‘m going to just ask you to focus on what we know about this medical report.  How significant is it to you that (A), that there was no tearing, and (B), that she changed her story? 

CHASSON:  Well first of all, it is not unusual to have no physical findings in a sexual assault case.  That is not that unusual.  There are so many factors that determine whether or not their injury.  Injury is not always present in the case of sexual assault.

ABRAMS:  The D.A. though—I mean in the—not the D.A.—in the affidavit for a search warrant, they said the victims had signs, symptoms and injuries consistent with being raped and sexually assaulted vaginally and anally.  What would that mean to you? 

CHASSON:  That‘s impossible to second guess.  I haven‘t read the report and I haven‘t seen the exam.

ABRAMS:  But I mean in an affidavit for a search warrant if they‘re saying that there were signs, symptoms and injuries, what—consistent with being raped and sexually assaulted vaginally and anally, that would seem to indicate that there would be some evidence, correct, that she was assaulted in those ways?

CHASSON:  Well there could be non-genital bruising.  There could be redness in the area...

ABRAMS:  And apparently there was redness.

CHASSON:  Then that could be a nonspecific or specific sign of sexual assault.

ABRAMS:  How conclusive is something like that?

CHASSON:  It‘s not conclusive.  Because sexual assault is a legal term, it‘s not a medical term is the problem.  So that‘s not conclusive—there is no—in an adult case, it‘s very difficult to come up with conclusive medical evidence.

ABRAMS:  All right.  Yale Galanter, as far as you know, has the defense team now gone through all—I mean I know the answer to this, I‘ll say it and then I‘ll throw the question to you, I know the defense team has now gone through all 1,278 pages or whatever it is of the discovery material in this case.  And you know, whether they are faking it or not, they certainly seemed elated after they saw it.

GALANTER:  Oh, they‘re ecstatic.  I mean this was a treasure trove of defense material.  And it really—as weak as we thought Mike Nifong‘s case was before he turned over this 1,300 pages, the two tapes, and the one disk scan last Thursday, today, it‘s even worse than we could have ever imagined.

Look at what we have here.  We know that these—that she told the police different stories, inconsistent stories, people were in the bathroom with her.  But let‘s just look at what the bottom line story was that we believe Mike Nifong indicted these boys on.  They forcibly raped her for 30 minutes in the bathroom. 

They used no condoms at all.  We now know that there are no abrasions, tears, bleeding in the vaginal area.  What I‘ve been told the report says, Dan, is that there was swelling only.  There was tenderness in her breasts and other areas.  There may have been a little redness, but the only abnormality in the vaginal cavity or the vaginal area was swelling.

We know that there was no DNA.  We now know that there was no toxicology done.  If these three boys actually had intercourse with this woman anally and vaginally, some of their cells would have been there, there were not...

ABRAMS:  Well, you know the claim, Yale.  It‘s not that all three of them had sex with her in that way.

GALANTER:  But any insertion, Dan...

ABRAMS:  Yes.  Yes.  Right.

GALANTER:  ... there would have been a transference of some of the skin cells, even if and I don‘t want to get...

ABRAMS:  All right, let me do this...

GALANTER:  ... too graphic, but even if there was...

ABRAMS:  Let me do this.  Yale, hang on a second...

GALANTER:  ... even if there was nothing else that occurred...

ABRAMS:  You have been talking a lot about the report; Carolyn Costello, our star reporter down at WNCN has actually seen some of the documents.  Carolyn, what did you see?

CAROLYN COSTELLO, WNCN REPORTER (via phone):  Hi.  Well, it‘s a report about three or four pages written by the officer who first responded to the Kroger and first of all, he indicates that perhaps the accuser wasn‘t—she seemed unconscious but perhaps she wasn‘t really.  He said he waved some ammonia under her nose. 

She started breathing heavily, but in his experience, people who are truly unconscious, wake up very dramatically.  But anyway, he says that he takes—he clears himself from the scene.  Another officer then takes her.  We know that that officer takes her to a psychiatric facility and then to Duke Medical Center. 

That officer then calls the first officer from Duke Medical Center and says you know what, she says she‘s been raped.  The first officer says OK, I‘m on my way back.  He comes goes back to the hospital, goes inside to interview the accuser.  At this point, she starts to tell him a story.  She is referring to the second dancer, the woman we know to be Kim Roberts as Nicky at this point.

She says that her and Nicky left the party.  She says Nicky is the one who danced and performed her routine.  She said that she did not.  They go to leave the party.  They‘re both sitting in the car.  The boys come out, asked for them to come back inside.  She said she and Nicky got into an argument about going back inside. 

She didn‘t want to go in.  Nicky did.  She says the boys dragged her out of the car and groped her, but they did not take her into the bathroom and they did not rape her.  This officer says he then goes outside, calls his watch commander, tells his watch commander OK, now she‘s saying she wasn‘t raped.  At this point he says a scene doctor—he uses the word doctor—comes out and tells him she just said she was raped. 

So he goes back inside again and asked her you know what happened.  She says I‘m not going to talk to you anymore, starts crying and then said something about being dragged into a bathroom.  The officer then calls his watch commander again.  The watch commander tells him that the criminal investigation division has been notified and at this point, I believe it becomes a rape investigation. 

ABRAMS:  And so again, to be clear, that early on, at least at one point she‘s saying that she was groped by three of them as she was being pulled out of the car, but wasn‘t raped.  That effectively they then left and then she said that in fact she was raped? 

COSTELLO:  That‘s right.

ABRAMS:  All right.  Carolyn Costello, thanks very much for that report.  We appreciate it. 

All right.  Yale, look that is consistent with what Susan was saying a moment ago, which you know that the argument could go, well, she just didn‘t feel comfortable talking to a particular person and as a result, she didn‘t want to say what happened to the police officer.

GALANTER:  And Dan, I agree with Susan.  I think that rape victims who face this kind of trauma would have trouble opening up to a uniform police officer and I think that‘s a very viable reason.  I‘m not sure that I buy all the detail. 

What I don‘t buy is why would she lie and say that Kim Roberts was in the bathroom with me while I was getting raped?  That‘s what I don‘t understand.  Why would she not tell the police when she gives the initial report about her sexual activity with three other people and the possible cause of swelling or any injuries...

ABRAMS:  All right.

GALANTER:  ... that they may or may not have found in the vaginal area?

ABRAMS:  Susan, 20 seconds to respond, then I‘ve got to wrap it up.

FILAN:  Well, I mean we don‘t know that she specifically said that she was in the bathroom during the sexual assault.  She could have said Kim was in the bathroom with me at some time.  That they were in that bathroom together.

We‘re sort of taking this out of context and we don‘t really know.  She also could have been really confused, because there could have been some element of hysteria.  The other thing is if these boys did grope her getting out of the car, that may be the sexual assault.  We may not be able to prove forcible rape, but if they were groping her as...

ABRAMS:  Wait, wait, wait...

FILAN:  ... she‘s getting out of a car...

ABRAMS:  ... they have been charged with rape here...

GALANTER:  Oh, Susan...

(CROSSTALK)

ABRAMS:  Wait, wait, wait...

FILAN:  I know what they‘ve been charged with...

(CROSSTALK)

ABRAMS:  If that‘s all they did, this case is an outrage.  I‘m not saying it‘s OK.  I‘m not saying it‘s right.  I‘m saying that this case is an outrage if that‘s what happened. 

FILAN:  Dan, I‘m trying to tell you that there may be things that she said that are actually true, that actually happened, which isn‘t to say that the rest of what she is telling...

ABRAMS:  Either a rape...

FILAN:  ... it‘s a difficult case...

ABRAMS:  ... happened in the bathroom or it didn‘t.  I don‘t want to hear about groping on the front lawn.

FILAN:  Dan, Dan, it is tough to prove rape.  So for you to say whether it happened or it didn‘t happened, as a matter of some supreme person that knows, it‘s going to be her word against theirs...

ABRAMS:  The way the law works...

FILAN:  That‘s the way a rape case goes.

ABRAMS:  ... says it‘s either guilty or not guilty...

FILAN:  That‘s right.

ABRAMS:  ... not somewhere in between. 

FILAN:  That‘s exactly right.  And to show that she‘s guilty, she‘s going to have to be found credible and she could be telling the truth and be impeached (UNINTELLIGIBLE) acquittal, which doesn‘t mean it didn‘t happen...

ABRAMS:  That‘s right.

FILAN:  There are other famous cases that you know very well...

ABRAMS:  Yes, that‘s fine.  That‘s fine...

(CROSSTALK)

ABRAMS:  Wait, wait, wait.  Who is throwing around legal terms?  Not me.  I‘m saying this case should be dropped unless the D.A. has more.  That‘s not legalities.

FILAN:  And I‘m saying I disagree.

ABRAMS:  Yes.  No, I‘m not relying on legalities and presumption of innocence and this and that.  I‘m saying this case is a mess. 

FILAN:  You are saying it‘s a mess because it can‘t be proven...

ABRAMS:  No, I‘m saying that all of the...

(CROSSTALK)

ABRAMS:  If you look at the evidence and you actually weigh it, it seems more likely than not that they didn‘t do it than that they did.  And if that‘s the case, my goodness, you don‘t charge. 

FILAN:  Yes, if you‘re so sure...

ABRAMS:  I‘m not saying so—again, don‘t misquote me, more likely than not.  That‘s what I just said and if that‘s the case, then a D.A.  should never charge and the D.A. should also drop the charges if that‘s where we are.  If we‘re at the point where we‘re saying it is more likely than not they didn‘t do it, this D.A. should drop the charges.  You would agree with that, Susan.  You just don‘t agree with whether it‘s more likely than not, right? 

FILAN:  I think if you can‘t prove a case, you don‘t prosecute. 

ABRAMS:  That‘s not what I said.  If it‘s more likely than not that they didn‘t do it, you drop the charges, right?

FILAN:  I just can‘t go there, Dan, because I don‘t know what you mean by more likely than not. 

ABRAMS:  OK.  My viewers I‘m guessing probably do.  I‘m not going to debate what the definition of is, is, but I think we probably know what more likely than not means.

I love Susan though.  Susan Chasson and Carolyn Costello and Yale Galanter and Susan Filan, thanks a lot.  Coming up...

FILAN:  Thank you, Dan.

GALANTER:  Thanks, Dan.

ABRAMS:  ... some of the toughest scenes to watch after Katrina were shots like this, pets left behind by their owners.  Now Congress wants states to come up with a way to evacuate pets.  But should pets be treated the same as people in prioritizing who gets evacuated? 

And you know I wasn‘t here yesterday because I was on jury duty, take you behind the scenes coming up.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  It‘s been almost nine months since Hurricane Katrina, now the first criminal trial since the hurricane could begin next week, but there‘s a big problem.  Many of the thousands of defendants being held for everything from drug offenses to murder have spent months behind bars with no access to an attorney.  The struggling public defender‘s office, which is funded primarily by parking tickets and traffic violations, dried up after Katrina and most of the offices‘ 42 part-time public defenders were laid off.  Now one New Orleans judge says a lot of these people have waited too long.  He wants to let a lot of these defendants out. 

Judge Arthur Hunter says it‘s his constitutional duty.  Joining me now is New Orleans District Attorney Eddie Jordan and director of the criminal court clinic at Tulane Law School, Pamela Metzger who has petitioned the court to release several inmates.  Thanks a lot to both of you for coming on the program.  All right, D.A. Jordan, I assume you don‘t think that this is the right remedy? 

EDDIE JORDAN, NEW ORLEANS DISTRICT ATTORNEY:  That‘s correct, Dan.  I‘m adamantly opposed to the wholesale release of inmates who are represented by the public defender‘s office. 

ABRAMS:  Pamela Metzger, I mean it does seem troubling that basically the court would just say you know what, since they haven‘t had access to a lawyer, we are just going to release them all. 

PAMELA METZGER, TULANE LAW SCHOOL:  Actually, that‘s not what the court is saying.  The court is looking at each case individually and what he‘s saying is has this person received all the process to which they‘re entitled under the Constitution.

ABRAMS:  Right, assuming that they haven‘t...

(CROSSTALK)

ABRAMS:  Assuming that they haven‘t been able to get access to a lawyer...

(CROSSTALK)

METZGER:  Yes and assuming that they haven‘t...

ABRAMS:  Right.

METZGER:  ... then the judge is looking at each case individually and making a decision about whether release is an appropriate remedy, not to the whole problem.  We are not asking for the extraordinary remedy of dismissal.  What we‘re saying is that in 2006, in the United States of America, you can‘t lock someone up for nine months without seeing a judge or seeing a lawyer and keep him locked up. 

ABRAMS:  But isn‘t there something different about this particular—

I mean everyone has had to sacrifice.  There have been people who have been out of their homes.  There have been people who were stuck in shelters.  There have been a lot of people...

METZGER:  Dan, Dan...

ABRAMS:  ... in a lot of horrible situations as a result of this hurricane. 

METZGER:  Absolutely and we‘re all suffering.  I‘m still commuting. 

The judge has been driving back and forth between three homes.  Mr.

Jordan‘s...

ABRAMS:  And so the prisoners have to...

(CROSSTALK)

ABRAMS:  And so prisoners have to suffer as well. 

METZGER:  No, I don‘t think so, Dan...

ABRAMS:  To they are the only ones who get...

METZGER:  I think that we have a promise that we have to keep.

ABRAMS:  ... so they‘re the only ones get a benefit from it?  Everyone else has to suffer.

METZGER:  They‘re not getting a benefit.  Let me tell you something, Dan.  It‘s no benefit to sit in jail for nine months and not know where your mama is or who is at home, if anyone is.  It‘s no benefit to have...

ABRAMS:  It‘s a benefit if you are guilty.  It sure is. 

METZGER:  Dan, we‘re not talking about dismissing the charges.  We‘re talking about releasing people so that at least they have a chance to meet with a lawyer, a chance to go to court.  Right now, even if every one of these cases was ready to go to trial, we don‘t have a courthouse we can bring them into.  When the framers planed the Constitution, they didn‘t say that people have rights unless and until the weather changes, not even for Hurricane Katrina.  We owe ourselves better than what we are giving those prisoners...

ABRAMS:  D.A. Jordan, what about...

METZGER:  We owe our Constitution better. 

ABRAMS:  What about the idea of saying you know what, if we can‘t put them on trial right now, at least for the ones let‘s say who aren‘t charged with murder, release them until they can have a trial.

JORDAN:  Well, first of all, let me say that I do believe that the judge is considering the wholesale release of all defendants who are represented by the public defender‘s office and that‘s just wrong and that‘s not in the interest of public safety for the city of New Orleans.  And I do believe that some of those persons who have misdemeanor charges pending are threats to the community based upon their significant criminal history. 

ABRAMS:  What about—I mean what about the possibility—I mean and Ms. Metzger is saying that you can sort of evaluate them on a case by case basis and determine which ones are a threat and which ones aren‘t and assess who should be released, at least in the meantime? 

JORDAN:  Well that‘s exactly what my office has been doing.  We have been cooperating with the defense bar and with the court and identifying those defendants who are eligible for release based upon the charge that‘s pending against them at this time.  We found that some individuals have multiple charges.  And those individuals should not be released.  Some of them have a misdemeanor charge, but they also have a felony charge.  Some of them have a probation or a parole hold as well.  Those individuals should not be released. 

ABRAMS:  I guess the problem, Ms. Metzger, is the fact that so many of the records have been destroyed, makes it a lot harder to asses who is going to be a danger to the community and who is not, right? 

METZGER:  Well I think that‘s right, but one of the things we have to remember, Dan, and first of all, I want to say that you know I know Mr.  Jordan‘s office wants to do the right thing, but the reality is, is that you know defense lawyers and prosecutors disagree and that‘s why we have judges.  The reality is it‘s not just that the records are lost, it‘s that there aren‘t enough courtrooms, enough lawyers, enough judges to get this done. 

It has been nine months since we have had a trial by jury.  We are crossing our fingers and hoping that we have one coming in June, but even when that happens, we are going to have a courthouse with fire marshals restricting us to 49 people in one room at a time.  And I‘m talking to people every single day who stood in dirty, filthy water for four days, got evacuated to prison along the Arkansas border, have not had any contact with family members since they were evacuated, have never been to court, have never been to see a lawyer.  And at some point we have to care more about the intrinsic constitutional values upon which this country was founded than we do about having to take individual risks in individual situations. 

ABRAMS:  Mr. Jordan, final...

(CROSSTALK)

ABRAMS:  Final word—I‘ve just got to wrap it up.  I want to give Mr. Jordan the final word.  Go ahead.

JORDAN:  Well I think the people have a right to a safe community.  And if we release all of these defendants, then we‘re certainly going to subject people to the threat of considerable amount of crime. 

ABRAMS:  Well it‘s an important issue.  Good luck with all the trials.  It seems like both sides would love to have these trials going.  I know you want that, D.A. Jordan, and I know Pamela Metzger wants to see that happen as well.

JORDAN:  Sure.

ABRAMS:  So thanks a lot.  Appreciate it. 

METZGER:  We sure do.  Thank you, Dan.

ABRAMS:  Coming up, the government couldn‘t evacuate all the people in New Orleans before Hurricane Katrina.  Now Congress wants states to be ready to evacuate pets as well.  How should they fit into the priorities? 

And yesterday I wasn‘t just talking about the law, I was part of the system.  Highlights from my jury service coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a new law would make room for pets in emergency management plans for storms like Katrina.  It sounds great, but would it lead to putting pets ahead of certain people? 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

BRIAN WILLIAMS, “NBC NIGHTLY NEWS”:  As Hurricane Katrina bore down on New Orleans, a man entering the superdome for shelter handed us his puppy because dogs he said weren‘t allowed inside.  The man never came back.  The puppy spent the past month or so living in our enormous NBC News satellite truck with our colleague and truck operator and secret softy Tom Baer (ph).  Well we named the dog Storm and he grew up big and strong and today his owner came back and as you see, Tom Baer (ph) handed him over. 

(END VIDEO CLIP)

ABRAMS:  I remember meeting Storm.  A happy ending to what seemed like a sad story.  Even so, Storm‘s owner was lucky, so was Storm.  And these other pet owners separated from their pets sometimes for months by Hurricane Katrina.  Many shelters around the Gulf Coast refused to take evacuees with their pets.  In tens of thousands of cases those animals had to be left behind.  Some still roaming the streets while other animal lovers risked their own lives braving the storm and the chaos that followed rather than abandoning their pets, but now that may change.  The House voted 349-24 today backing a new law that requires state and local emergency preparedness offices to include pet owners‘ household pets and service animals in their evacuation plans. 

If those offices don‘t take the animals into account, they won‘t qualify for grants from FEMA.  Sounds great.  The question that some people are asking is does it mean that people will suffer because of other‘s pets.  Congressman Tom Lantos, a California Democrat, he sponsored the Pet Evacuation and Transportation Standards Act, is a founding member of the, who knew, Congressional Friends of Animals Caucus. 

He has a friend with him, a dog named Moscoe (ph).  David Boaz is executive vice president of the Cato Institute.  All right, before I go to Representative Lantos, I mean the position, Mr. Boaz, on this seems fairly reasonable, the idea that people you know feel passionately about their pets and some people risk their lives for their pets and as a result that there should be something that says we got to take the pets into account. 

DAVID BOAZ, EXECUTIVE V.P., CATO INSTITUTE:  No, I don‘t think that‘s reasonable.  Look, people care about their pets.  Everybody loves puppies.  It‘s terrible to see those stories, but this foe (ph) today is feel good politics and nanny state government.  The biggest problem is it‘s the federal government telling all 50 states we know better than you do how you should run your evacuation plans.  And just as we did, we told you in the No Child Left Behind Act how to run your schools and we told you that we were going to use highway money to tell you what the speed limit should be in your state...

ABRAMS:  Right.

BOAZ:  ... now we are going to tell what your evacuation plan should be. 

ABRAMS:  What about the substance behind it, though?  Apart from the federal versus state issue, which I‘m not minimizing, but I also want to just ask you before I go to the congressman about this, what about the substance of the idea of the legislation? 

BOAZ:  Well the substance, too.  This is typical example of ignoring realities and ignoring tradeoffs.  Everybody loves puppies so it sounds like a great idea.  But the fact is if the superdome will only hold 20,000 people or you‘ve got 100 buses with 30 seats each, are you going to put people on them or are you going to put animals?  If you have to make that choice, then you take people and this law is going to require them to make decisions that maybe some people won‘t get on the bus because you had to take animals. 

ABRAMS:  I‘m not sure why we were showing goats and pigs there in our video, but all right, Congressman, what do you make of that? 

REP. TOM LANTOS (D), CALIFORNIA:  Well I think the comments were absurd and really beneath serious dignity.  What my legislation will do in the first place, it will save human lives.  We have anecdotal evidence that large numbers of pet owners refused to leave their animals since they could not be put into a shelter.  So as we sit here, none of us can tell how many people lost their lives because there was no such legislation. 

This will merely provide humane and decent treatment for our pets and service animals.  Just imagine an individual who is dependent on a seeing-eye dog to have that dog taken away from him or her.  This is beneath contempt...

ABRAMS:  Let me play...

LANTOS:  ... criticism.  That is why my colleagues, by a vote of...

ABRAMS:  Yes.

LANTOS:  ... 349-24 voted for this.  This is a civilized...

ABRAMS:  All right, let me...

LANTOS:  ... humane piece of legislation. 

ABRAMS:  ... play devil‘s advocate here for a minute, Congressman.  What about those people who say, you know, you are saying what about the people who need their seeing-eye dogs and other animals to help them in their everyday lives.  What about the people who are allergic to animals, et cetera, who will then be in a confined area with animals they may be allergic to? 

LANTOS:  Well that is a very valid point.  We can‘t solve all the problems.  The problem that my legislation is designed to solve, and in fact, will solve, it will protect the tens of thousands of animals who are in danger, the people who would lose their lives, rather than leave their pets, and we will have to deal with allergy issues later on.  This is a pathetic libertarian point of view, that to hell with animals, we don‘t have to worry about them. 

Let them die.  Many American families...

BOAZ:  Wait.  Wait.  Wait...

LANTOS:  ... consider their pets as part of the family.  And let me just say...

ABRAMS:  Quickly, yes.

LANTOS:  ... to the gentleman that I have had more positive response from all 50 states to this legislation than any other legislation in memory.  The American people are for it.

ABRAMS:  Go ahead, Mr. Boaz. 

BOAZ:  Well I can believe that your other legislation has not been well received either...

LANTOS:  They were well received...

BOAZ:  ... but without throwing around the kinds of adjectives that you are using, let me just say I think it is disappointing that a senior member of the U.S. Congress would cite anecdotal evidence as the evidence necessary to pass...

(CROSSTALK)

BOAZ:  ... federal...

(CROSSTALK)

BOAZ:  ... could I finish, Congressman?  You had a lot of time. 

ABRAMS:  Yes, go ahead.

BOAZ:  I think it is appalling to suggest that anecdotal evidence is the basis on which to make federal law that will apply to all 50 states.  And I think the people in the 50 states could be trusted to decide these issues for themselves.  They may be different in Wyoming and Florida and New York and California.

ABRAMS:  All right...

LANTOS:  Well my legislation provides for total local autonomy with respect to the specifics...

BOAZ:  But no money unless they do it your way. 

(CROSSTALK)

ABRAMS:  All right. 

LANTOS:  Well you are in a very small minority and you are dead wrong. 

ABRAMS:  We‘ve got to wrap it up.  Is that a Westy?  Is that a Westy mix?

LANTOS:  It‘s a Westy...

ABRAMS:  Yes.

LANTOS:  ... and it‘s a wonderful little creature. 

ABRAMS:  All right.  Good to see you, Congressman.

LANTOS:  God bless.

ABRAMS:  David Boaz, thanks a lot.  Appreciate it.

BOAZ:  Thank you.

ABRAMS:  Coming up, this may be the program about justice, but yesterday I was called to take part in the justice system.  I had jury duty.  I‘ll take you along when we come back. 

... our effort to find missing offenders before they strike. This week we‘re in Texas.  Authorities are looking for Fernando Rivera.  He‘s 52, five-six, 145, was convicted of indecent sexual contact with a child, hasn‘t registered his address with the state.  If you‘ve got any information on where he is, please contact the Texas Department of Public Safety, 512-424-2000.  Be right back.

(COMMERCIAL BREAK)

(BEGIN VIDEOTAPE) 

(MUSIC)

ABRAMS:  So it‘s about a two-block walk from the subway down to the courthouse here.  I intentionally wore some comfortable clothes today.  I‘m getting the feeling I‘m going to be sitting for a while, possibly for hours.  Does it make me weird that I‘m actually hoping to get on a jury?  I brought a lot of reading material with me, because I‘m getting the feeling I‘m probably going to be doing a lot of sitting. 

I brought magazines, my newspapers, a bunch of them, even Sunday‘s you know book review.  I don‘t really often get a chance to finish that one, but I‘m thinking that this may be one of those days where I get to do that extra reading.  All right.  Well, just on time, it looks like it‘s about 8:42, leaving me three minutes to get up there and begin the process.  By the way, this is the same stairs that they walk up in “Law & Order”, not bad. 

(MUSIC)

(CLOCK TICKING)

ABRAMS:  This is where I spent most of my morning, Room 452 at 60 Centre Street.  It used to be the case that if you were a lawyer, you didn‘t even have to show up.  Not the case anymore.  All of these chairs, or almost all of them were filled with prospective jurors.  Just like me, we got our juror handbook, juror questionnaire, went up to this desk and gave them my information. 

Now, I am still a prospective juror on a case.  I may make the case.  As a result, I‘m not allowed to talk about what it is.  Can tell you it‘s a civil case for money damages.  I can also tell you that both of the lawyers, well, they like the show. 

While we‘re here, we decided to stop by the clerk of the court‘s office, Norman Goodman, good to see you. 

UNIDENTIFIED MALE:  Hey, Dan.  Good to see you.

ABRAMS:  He‘s been doing this for 37 years.  That‘s a long time.  All right.  So the first question I‘m going to ask you is how many days am I going to have to be here?  If I don‘t get on this jury panel, how long am I here? 

UNIDENTIFIED MALE:  If you don‘t get on this jury panel, you‘re going to be here another day. 

ABRAMS:  If you were a lawyer on a case would you want me on your jury?

UNIDENTIFIED MALE:  Oh I‘d love to have you. 

ABRAMS:  Really?

UNIDENTIFIED MALE:  Absolutely.

ABRAMS:  I make so many judgments about people.  I‘m always...

UNIDENTIFIED MALE:  Oh, yes...

ABRAMS:  ... spouting my views off about everything and...

UNIDENTIFIED MALE:  But you can set all of those things aside...

ABRAMS:  Of course I can.

UNIDENTIFIED MALE:  ... and you can listen to the facts...

ABRAMS:  Yes.

UNIDENTIFIED MALE:  You can listen to the testimony, and you can make a decision...

ABRAMS:  All right. 

UNIDENTIFIED MALE:  ... based on the testimony.

ABRAMS:  So I might get on this jury? 

UNIDENTIFIED MALE:  Absolutely. 

(MUSIC)

ABRAMS:  One day of jury service, and I‘m free to go home or back to the studio, as the case may be.  How did I get out after just one day?  Well, I think that the court personnel probably felt sorry for my entire panel, anyone who wasn‘t picked for my jury was allowed to go.  Done.  Finished.  I think it‘s because we sat there for about two hours or so, even after all the questions were asked, and just waited. 

So I think as a result, they let us go home.  I can now tell you what the case was about.  It was a case where a guy says that he was rear ended by a Department of Health vehicle, says he was injured with back and neck injuries and is now suing the city.  I‘m probably not the best guy for that jury.  After all, I speak a lot about tort reform and the fact that I think that our legal system needs to be changed and that these are the kinds of lawsuits that very often I‘m not particularly sympathetic towards, so I may not have been the best guy for the case. 

I got to say I was a little disappointed.  I wanted to serve on a jury again, but not this time.  Got my sheet, four years, I won‘t have to serve on another jury.  Oh, well, it means I‘m back in the studio. 

(END VIDEOTAPE) 

ABRAMS:  I really would have liked to have been on a case, but it wasn‘t meant to be.  I got it—got off easy.  We‘ll be right back.

(COMMERCIAL BREAK)

ABRAMS:  “Your Rebuttal”, Brenda Moore from Georgia on me being called for jury duty yesterday.  “I‘m truly glad you did not get picked for jury duty.  We need you too much sitting at your job at 4:00 everyday.  Besides, if I was being accused of something, you‘d be the very last person I would want to judge me.  You are too versed in the law and you‘re a know-it-all.  That was meant in a good way.”  Good way.

That‘s it for us.  “HARDBALL” is next. 

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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