updated 5/26/2006 1:23:44 PM ET 2006-05-26T17:23:44

Guests: Brian Wice, Bethany McLean, Sam Buell, Roger Boyce, Jeff Lanza,

Mike Sanders, Bill Gallup, David Schwartz, Richelle Nice, Elizabeth Gleick,

Kris Kobach

DAN ABRAMS, HOST:  Coming up, guilty, guilty, guilty.  A jury finds former Enron CEOs Ken Lay and Jeffrey Skilling guilty.  Now they‘re facing decades behind bars.

The program about justice starts now.  

Hi, everyone.  First up on the docket, former Enron executives Ken Lay and Jeff Skilling who ran the energy giant just before it imploded found guilty on almost every count.  Ken Lay, Enron‘s founder, convicted of all six counts against him, conspiracy, wire fraud, securities fraud and a judge convicting him of four separate charges of bank fraud and making false statements. 

Jeff Skilling, once the chief executive of Enron, guilty of 19 counts of conspiracy, fraud, and making false statements.  It most likely means both men will serve at least a decade, if not decades in prison.  Here‘s what we heard in the moments after the verdict. 

(BEGIN VIDEO CLIP)

JEFF SKILLING, FORMER ENRON EXECUTIVE:  We‘re going to have to go back and I guess think this thing through, but obviously I‘m disappointed, but, you know, that‘s the way the system works. 

KEN LAY, FORMER ENRON EXECUTIVE:  We‘re surprised.  I think probably more appropriate to say we‘re shocked.  Certainly this is not the outcome we expected.  I firmly believe I‘m innocent of the charges against me, as I have said from day one.  I still firmly believe that as of this day. 

SEAN BERKOWITZ, PROSECUTED ENRON CASE:  The jury has spoken and they have sent an unmistakable message to boardrooms across the country.  You can‘t lie to shareholders.  You can‘t put yourselves in front of your employees‘ interests.  No matter how rich and powerful you are you have to play by the rules. 

WENDY VAUGHAN, ENRON TRIAL JUROR:  Once the actual defendants—I wanted very, very badly to believe what they were saying, very much so.  And there were places in the testimony where I felt their character was questioned. 

(END VIDEO CLIP)

ABRAMS:  Joining me now “Fortune” magazine senior writer Bethany McLean.  She‘s the co-author of “The Smartest Guys in the Room: The Amazing Rise and Scandalous Fall of Enron”, been covering the case from the courtroom, Houston defense attorney Brian Wice, who was also in the courtroom for much of the trial and former prosecutor with the Justice Department‘s Enron Task Force Sam Buell.  Thanks to all of you for coming on the program.  Appreciate it.

All right.  Brian, first of all, any surprise here? 

BRIAN WICE, HOUSTON DEFENSE ATTORNEY:  No, Dan.  I think the speed with which this jury came back, particularly considering the fact that a big holiday weekend is coming up, wasn‘t any great surprise.  Ultimately, as the jurors have said while they liked Jeff Skilling and Ken Lay, while they found them compelling at some level, they ultimately didn‘t find them credible.  This was a case that without regard to a paper trail, it‘s a question of whether these jurors believe they could trust these guys to run their 401(ks). 

ABRAMS:  Well and—well, I don‘t know about it‘s running their 401(ks), but Bethany, when it comes to listening to these jurors, now that they have spoken, is it clear that the testimony of Lay and Skilling hurt them? 

BETHANY MCLEAN, “FORTUNE” MAGAZINE:  It‘s not clear at all.  And in fact, that question was asked and the jurors hedged on that question as to whether it hurt them or not.  They said they were glad they heard from them.  What‘s clear in listening to the jurors is that they heard the evidence that was presented to them.  Just as there was no smoking gun, piece of testimony, the jurors didn‘t point to one piece of evidence and say this is what did it. 

They said it was the fact that the prosecution‘s story hung together.  All of the witnesses were corroborated by other witnesses, were corroborated by documents.  And that‘s actually really encouraging for anybody who wants to believe in the American justice system.

ABRAMS:  Sam Buell, do you think in the end it was a mistake to put Lay and Skilling on the stand or did they really have no choice? 

SAM BUELL, FORMER PROSECUTOR, ENRON TASK FORCE:  Well I think given how the testimony went, it‘s easy to question the decision.  It was pretty clear to all the observers at the trial that they didn‘t come off as very credible.  There were some specific problems they couldn‘t answer.  Their demeanor, particularly Lay‘s, was not appealing. 

They sort of belied the image of the benign, detached high-level executives.  And so you know, it isn‘t so much a question of do you or don‘t you put the defendant on the stand.  It‘s do you have the kind of defendant who‘s going to do well on the stand.  And it turns out not to be the case for these gentlemen. 

ABRAMS:  And Bethany, was the fact—when we talk about not credible, was it the fact that both of them were getting up on the witness stand and saying, I didn‘t know that Enron was really in trouble and I didn‘t believe Enron was really in trouble?  Was that the crux of it?

MCLEAN:  That was some of it.  I think the crux was more, from what I understood the jury to say, the crux was more that the defendants said they had their hands on the tiller and they said they understood the details and then on certain really key pieces of evidence they were both evasive and said I don‘t know, I can‘t recall, I don‘t remember.  And the jury found that not to be credible for two men, especially Jeff Skilling who could digress about bar for hours on end, they didn‘t believe him when he said I don‘t know. 

ABRAMS:  A juror, Wendy Vaughan, spoke out.  Again, they did not show their faces, but they did speak and we‘ve got the audio.  Here‘s what she said about Jeff Skilling‘s testimony. 

(BEGIN VIDEO CLIP)

VAUGHAN:  He seemed very much wanting to be in control when he spoke.  He kind of commanded the room, I thought, when he answered questions.  He just seemed very focused, a little bit of a chip on his shoulder.  I think it made me question his character at that point, how controlling he might be. 

(END VIDEO CLIP)

ABRAMS:  You know, Brian, as a defense attorney, when you listen to jurors talking about their reactions to the way that the defendant spoke on the witness stand, it‘s got to make you cringe thinking, oh, I should have just made him smile a little more.  I should have just made him seem a little more friendly, et cetera.

WICE:  Again, that‘s a great point.  But I think one of the defining moments of this trial in that regard was when Ken Lay‘s lead lawyer, Mike Ramsey, became ill during the first month of the trial.  I‘m hear to tell you that Mike Ramsey would not have put up for a New York minute with some of the shenanigans that we saw Ken Lay engage in with substitute lawyer Matt Seacrest (ph). 

During the first break in the proceedings, Mike Ramsey would have taken Ken Lay in the witness prep room and threatened to whip him.  I mean part of the problem with the defense team in this case, Dan, frankly was you didn‘t see the trust and the chemistry and the bonding between defendant and lawyer that we would have seen I really think if Mike Ramsey had been around.  And whether or not Ramsey could have kept Ken Lay from going to everybody‘s grandfather, Richard Nixon in 1.5 seconds is obviously a question that we‘ll never know the answer to. 

ABRAMS:  All right.  Sam Buell, look, I know that it gets pretty complicated when you‘re talking about the federal sentencing guidelines as to what kind of sentence we‘re talking about.  Sentencing will occur on September the 11th.  Give us a general sense of how much time you would expect that Lay and Skilling would get. 

BUELL:  More than 10 years, less than 30 would be my guess.  It could be you know somewhere right about in the middle of that, around 20.  But it‘s a complicated calculation, so we can‘t really say at this point.  Suffice it to say that it‘s enough time that at this point in these men‘s lives they‘re looking at the better part of the duration of their lives in federal prison.

And so, Dan, what we‘re going to see from here on in this case is a game of delay, delay, delay.  Because every day they don‘t serve in prison at this point is potentially a day off their sentence given their age and the length of time they‘re looking at. 

ABRAMS:  And Bethany, how vigilant will the prosecutors be in an effort to get them to start serving their sentences? 

MCLEAN:  I expect them to be very diligent.  The prosecutors have been nothing but diligent throughout this whole trial and this whole investigation, so it‘s hard to believe that they‘d let up now. 

ABRAMS:  Yes.  I mean, Brian, do you expect them to be vigilant in saying you know we need to get them behind bars immediately? 

WICE:  Well, I was somewhat surprised they didn‘t ask for remand today.  I would think given the nature of the bonds and the fact that both defendants have surrendered their passports was a consideration.  But Dan, I think the big question is whether or not Judge Sim Lake will let these defendants remain at large pending appeal on their sentence on 9/11.

Quite frankly there is a presumption against release in the federal system.  You have essentially got to show not only that you‘re not a threat, that you‘re not likely to engage in further wrongdoing, but simple, Dan that there are substantial questions that are likely to result in a reversal of your conviction or convictions.  And the individual of whom you ask that question is the judge, who has just presided over the trial.  I think it‘s highly unlikely, Dan, that Judge Sim Lake will let either defendant remain at large pending the course of a process on appeal that could take 12 to 18 months.

ABRAMS:  All right.  Bethany McLean, Brian Wice, Sam Buell, thanks a lot. 

Joining me now is former Enron employee Roger Boyce, who had an access of $2 million in Enron stock, which accounted for 60 percent to 70 percent of his retirement investments.  He was a human relations director of Enron, a pipeline company in Minnesota.  Thanks very much for coming on the program.  We appreciate it.  What is your reaction to the verdict? 

ROGER BOYCE, FORMER ENRON EMPLOYEE:  I think justice is served.  I think as just was indicated.  And I think it‘s—I guess I have a mixed emotion from an employee standpoint that there is a sadness that all the employees and retirees had to go through all this, this whole shenanigan, but secondly, I think there is some real satisfaction and the justification—and justification in the sentencing.  So I think there is a satisfaction to be gained from that.

ABRAMS:  You know, I‘ve heard you speak about this case and you have spoken very fondly about your past experience within Enron and what you had thought about Skilling and Lay back at the time, and then about the fact that you got angry after figuring out what it was that was going on.  With all of that in mind any sympathy for these guys?

BOYCE:  Not really.  I mean justice has been served.  The sympathy goes to the—I think to the victims of this thing, which (INAUDIBLE) employees, stockholders of course too, but the employees and retirees.  There is the sympathy...

ABRAMS:  Absolutely.

BOYCE:  ... if there is any sympathy to be had.

ABRAMS:  No, and don‘t get me wrong.  It‘s just based on the way you spoke about Ken.  I mean you used to like Ken Lay, right? 

BOYCE:  Oh, I‘ve always had a great respect for him.  He was, you know, from my contact with him, he was very sincere.  He‘s was very good with the -- to the employees and this type of thing.  But you know still, it‘s not a situation that you can forgive him for what has transpired.  And the courts have said he‘s been guilty of this and he has to own up to it. 

ABRAMS:  But apart from courts, I‘m asking you know in terms of—I assume you were hoping for this outcome, right? 

BOYCE:  Oh, I think so.  I guess it was more of let the justice system take care of itself and if he‘s convicted then he has to serve his time.  Back to your first comment, absolutely, I have always had a great respect and I think this was part of the trust that was involved in the whole episode with all the employees, why they held so much stock in their accounts, is because the trust was shown from the company.  And that came predominantly from Ken Lay‘s leadership and after that of course Jeff Skilling‘s. 

ABRAMS:  All right.  Roger Boyce, thanks a lot for coming on the program. 

Good luck to you, sir. 

BOYCE:  My pleasure. 

ABRAMS:  Coming up, someone has apparently spotted the man and woman the FBI are calling the most dangerous couple in America.  They‘re accused of beating, raping and killing a woman and videotaping it all.  Now authorities think they could have killed others as well.

And this child molester facing 10 years in prison, but a judge only sentenced him to probation because she says he‘s too short to serve prison time.  This is not a joke. 

Plus, one of the jurors who convicted Scott Peterson has been writing letters to him in prison and he‘s writing back.  She joins us live. 

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:  The FBI is now calling them the most wanted couple in America and there‘s a report they have been spotted in Illinois.  Richard Davis and Dena Riley wanted for kidnapping, raping and murdering 41-year-old Marsha Spicer during a sexual encounter that they videotaped.  The probably cause statement says the video shows that Spicer had her hands duct taped behind her back. 

Her eyes were covered in duct tape and appears to be in an drug-induced state.  The victim is repeatedly struck with open and closed hands, strangled several times by Davis.  She is seen spitting and possibly vomiting from the abuse and is heard asking the suspects to stop and pleading with them.

The duo has been on the run since May 19.  Police believe the alleged murder happened in Davis‘ home in Independence, Missouri, in the early morning hours of May 14.  Her body found on May 15 in a shallow grave near Bates City.  Police had just missed them apparently in Perryville, Missouri on Sunday, now a reported sighting at a gas station in Columbia, Illinois. 

Joining me now special agent Jeff Lanza from the Kansas FBI and on the phone is Mike Sanders, the prosecuting attorney for Jackson County, Missouri.  Gentlemen thanks so very much for coming on the program.  Appreciate it.

UNIDENTIFIED MALE:  You‘re welcome.

ABRAMS:  All right.  First, let me ask you, Mr. Lanza, in terms of what we know about this sighting, how credible? 

JEFF LANZA, FBI SPECIAL AGENT:  Well we had information that they were in—at least he was in Columbia, Illinois, on the 19th of May.  And the sighting at this point in time, which was supposedly after that, we‘re trying to check that out to see how credible that was.

ABRAMS:  And you‘re talking about the gas station one, right?  The most recent one?

LANZA:  Yes.  Well the most recent one that I‘m aware of this was on the 19th of May and that was in Columbia, Illinois.  And then we had the situation, the sighting in Perryville, Missouri, which took place this past Monday.

ABRAMS:  They could be real dangerous, right? 

LANZA:  Well they are accused of some very horrible crimes here and of course, they are very dangerous.  We consider them to be extremely dangerous and we are very focused on getting—and trying to get them into custody. 

ABRAMS:  Were you as affected by watching this videotape as some of the other people involved in this case, the prosecutor and some of the detectives?

LANZA:  I didn‘t personally watch it myself. 

ABRAMS:  OK.

LANZA:  I have no desire to watch it, but I can tell you the reaction of some of the people who did they were very, very much affected by that, and these are hardened veteran law enforcement officers. 

ABRAMS:  Mike Sanders, is it at least reassuring that they seem to be spotted within the same general vicinity in the country? 

MIKE SANDERS, JACKSON COUNTY, MO PROSECUTING ATTORNEY (via phone): 

Sure.  I mean I think that certainly adds credence to I think some information, as Mr. Lanza said, that we have.  But I want to make sure that we just don‘t just focus the eyes and the nation on this one geographic area.  You really I think anyone in the Midwest who thinks they may have seen this couple, have information about their whereabouts, we want to make sure that information comes in either 911, 816-474-TIPS, so that we can get that information.  But as I think Mr. Lanza said, it‘s absolutely critical that we get this couple into custody as soon as possible given the nature of the crimes they are charged with. 

ABRAMS:  And the fact that there have been this many sightings of them says that the word is getting out, right Mr. Lanza?

LANZA:  Well, absolutely.  I mean this is—this case has received a great deal of media coverage, which is a good thing and there‘s no doubt in my mind that we‘re going to get a lot of calls.  We already have had a lot of calls on this couple.  None have panned out so far, but usually in cases like this it‘s just that—it takes that one call that results in the capture of very dangerous people.  It‘s happened in the past and we expect it might happen here. 

ABRAMS:  All right.  There‘s the number, 816-474-TIPS.  Jeff Lanza, Mike Sanders, thanks a lot.  Appreciate it.

SANDERS:  Thanks.

LANZA:  You‘re welcome.

ABRAMS:  Too short for prison.  That‘s what one judge in Cheyenne County, Nebraska told a five-foot-one-inch child molester.  District Judge Kristine Cecava sentenced 50-year-old Richard Thompson to just probation even though he pled no contest to two counts of sexually assaulting his girlfriend‘s 14-year-old daughter. 

The judge said the crimes deserved a long sentence.  Thompson was

facing up to 10 years in prison, but the judges expressed concern that the

61-inch tall child molester would be too small to survive prison.  Saying -

quote—“what you have done is absolutely inexcusable.  You‘re a sex offender and you did it to a child.  That doesn‘t make you a hunter.  You don‘t fit into that category.  I‘m going to try to put together some kind of order to keep you out of prison.”

Joining me now former Nebraska prosecutor Bill Gallup, who is now a defense attorney, and criminal defense attorney David Schwartz.  Gentlemen thanks very much for coming on the program.  Appreciate it.

Mr. Gallup, this sounds outrageous, the notion that because this guy is short that somehow helps him avoid prison?

BILL GALLUP, FORMER NEBRASKA PROSECUTOR:  Well it‘s a judicial aberration in the first place.  He was looking at 60 years in prison.  He was charged with first-degree sexual assault on a child, which carries up to 50 years in prison, but that was dismissed when he pled to the two class 3-8 (ph) felonies, meaning he can only get 10 years in jail, so that was a Christmas present early for him right there in and of itself.

ABRAMS:  All right, so he gets that present, as you put it, then he pleads to no contest to these two other charges, facing up to 10 years.  And now the judge saying, well, you know, because he‘s so short, that could be a problem.  I‘ve never heard anything like that. 

GALLUP:  Well I have never heard of anything like that either.  In Nebraska, the prosecutor has a right to appeal to the State Supreme Court if he thinks the sentence was excessively lenient.  And our Supreme Court has said while the judge has discretion in these matters, if the reason for the ruling is untenable that‘s an abuse of discretion.  So in this case I‘m sure that either the county attorney or the state attorney general will appeal on the grounds that the sentence was excessively lenient. 

ABRAMS:  David, you have taken some absurd...

(CROSSTALK)

ABRAMS:  ... and unpopular positions on this program.  You‘re not actually going to tell us that you think that he should avoid prison because of his height, are you?

DAVID SCHWARTZ, DEFENSE ATTORNEY:  Well unpopular, yes, Dan, but absurd, I would have to take account to that.  Listen, I‘m concerned about the independence of our judicial branch of government.  OK, we‘re taking a little statement from a judge where she says that you know based on the fact that he‘s five-foot-one, he can‘t go to jail. 

But you know there was a bigger decision making process in this case.  And you know what, the judge can‘t go on THE ABRAMS REPORT and defend herself.  That‘s the big problem that I have that a lot goes into these decisions.  And now we‘re going to be Monday morning quarterbacks criticizing every single decision that a judge makes.  That is a very, very dangerous precedent, Dan...

ABRAMS:  Wait...

SCHWARTZ:  ... very dangerous...

ABRAMS:  Look, I defend judges a lot of time on this program.  You are saying that judges should be above reproach no matter what their decisions are? 

SCHWARTZ:  No.  No, but I think the way to handle is put the right people on the bench in the first place...

ABRAMS:  I understand...

(CROSSTALK)

ABRAMS:  So maybe we‘ve got the wrong person on the bench.  And the way to find that out is by exposing a ridiculous decision that somehow incorporates this guy‘s height into whether he should serve prison time. 

SCHWARTZ:  No, the way to expose it is to take the totality of the judge‘s work and then when they‘re up for reappointment, to bring that to the attention of the judicial screening committee.  The problem is it‘s not a fair fight, Dan.  This judge...

ABRAMS:  Well it‘s not a fair fight because it‘s such a ridiculous factor to take into account. 

SCHWARTZ:  Right.  No, it‘s not that ridiculous of a factor...

ABRAMS:  All right. 

(CROSSTALK)

ABRAMS:  Explain to me how...

SCHWARTZ:  I‘ll tell you how.

ABRAMS:  ... his height even could possibly impact whether he should serve prison time. 

SCHWARTZ:  The physical ability of a defendant is many times, not always, but many times taken into consideration.  For instance, when someone is terminally ill with cancer, many times those people are not sent to jail because of their physical condition. 

ABRAMS:  So this guy because of his height gets free passes, basically? 

SCHWARTZ:  I don‘t think we know enough about the judge‘s decision-making process here to say that it was just because of the defendant‘s height.  I have read some of this paperwork and yes, it‘s in there and yes, if you focus just on that one point, yes, you could say that it‘s absurd. 

ABRAMS:  Bill...

SCHWARTZ:  You‘ve got to take into account though, Dan, that he‘s sentenced to 10 years probation...

ABRAMS:  Oh, I know.  I know.

SCHWARTZ:  He‘s going to be a sex offender. 

ABRAMS:  Oh...

SCHWARTZ:  It‘s no tea party being...

ABRAMS:  Oh, I know.  It must be awful for a guy who has done these things to a child to be considered a sex offender and get 10 years probation when as Mr. Gallup points out he could have been facing up to 60 years before they even entered into this deal in the first place.  Mr.  Gallup, do you know anything else about this judge? 

GALLUP:  No.  Sidney, Nebraska is way out in the western outskirts near Wyoming.  It‘s a small community.  In that area the judge probably only hears about 15 or 20 felony cases a year.  In Omaha, Nebraska, judges hear that many cases every month.  So this was probably a relatively unusual case for that particular judge to be involved with.

ABRAMS:  I mean it sounds to me like this judge basically looked at this guy, little guy, and said you know, oh, he‘s so small that I feel sorry for him in some way. 

GALLUP:  Well she specifically said that he deserved to go to the penitentiary for a long time because it was a very serious offense, but because he was only five-foot-one inches tall, he would be imperiled if he went to prison.  Well that‘s what prisons are for.

People don‘t want to go to prison because it‘s a bad place to be.  So she promoted disrespect for the law when she gave that excessively lenient sentence.  And I can assure you that will be appealed to our State Supreme Court.

ABRAMS:  What are we going to do next, David?  Are we going to start saying—are we going to start weighing people and saying oh, you know, this guy is only 108 pounds.  Boy, if we send him to the slammer, think of what might happen to him.

SCHWARTZ:  Yes, when you present it that way, it does sound pretty absurd, Dan, but that‘s not the only factor that‘s taken into account when a judge makes a decision.  And you know what, let me tell you something.  Prison is a very tough place...

ABRAMS:  I know...

SCHWARTZ: ... for people who are convicted as sex offenders.  And let me tell you something.  There is a lot of people in prison today that took the plea in order to get a lesser prison sentence, but yet they felt because they were facing 50 years in prison, they took a plea and only got a few years in prison...

ABRAMS:  Right.

SCHWARTZ:  ... and yet, they don‘t think that they were really guilty...

ABRAMS:  What does that have to do with this? 

SCHWARTZ:  It has a lot to do with this case...

ABRAMS:  Why?

SCHWARTZ:  ... because sex—because people who are convicted of sex crimes are often treated...

ABRAMS:  Right.

SCHWARTZ:  ... extremely unfairly...

ABRAMS:  Oh, OK...

SCHWARTZ:  And that‘s a fact. 

ABRAMS:  OK.  And that‘s relevant to this case because therefore, maybe this guy was treated unfairly?

SCHWARTZ:  No.  I think maybe the judge felt that he could be rehabilitated through a process, but if he went to jail and he would get so beaten up in jail that even if he got in 10 years or 15 years or even 20 years, he would be 20 times worse than...

(CROSSTALK)

SCHWARTZ:  ... the person now.  That‘s the thinking that sometimes goes into the process.

ABRAMS:  Mr. Gallup, you‘re not a regular on this program, so I want to introduce to you Mr. Schwartz who often take positions as absurd as the one he‘s taking now...

SCHWARTZ:  It‘s not an absurd position, Dan.  Come on.

(CROSSTALK)

ABRAMS:  All right.

(CROSSTALK)

ABRAMS:  I‘ll even assume for the sake of argument that you believe some of this.  Mr. Gallup, let‘s just for the sake of the Nebraska judiciary, let‘s make it clear that this is not a typical ruling in the state of Nebraska. 

GALLUP:  No, this would be called a judicial aberration.  Our Supreme Court, I checked before I came in here today, has reversed a half dozen of these cases in the last couple of years, sexual assault cases where people were put on probation.  They have concluded that the sentences of probation were excessively lenient because the judge‘s decision was untenable and promoted disrespect for the law.  So there is a means of getting this cleared out.

(CROSSTALK)

ABRAMS:  David, I want to you know, I never use this example because I always think it‘s such a cheap shot, but my guess is that if this had happened to someone you know that you would not feel the same way...

SCHWARTZ:  No, I think—my point, Dan, is we need an independent judicial branch of government. 

ABRAMS:  Yes.  All right.

SCHWARTZ:  That‘s a very dangerous precedent to tell the legislature...

(CROSSTALK)

SCHWARTZ:  ... to start telling the judges what to do. 

(CROSSTALK)

SCHWARTZ:  Please.

ABRAMS:  ... into like a broad issue of separation of powers.

SCHWARTZ:  It is a broad issue.

ABRAMS:  It‘s a little issue.  It‘s about a little guy who got a little sentence because of his height.

SCHWARTZ:  Well...

ABRAMS:  That simple...

SCHWARTZ:  I wish the judge could come on and defend herself.  Maybe she would...

ABRAMS:  I invite her to come on the program.  We invited her...

SCHWARTZ:  She‘s not allowed...

(CROSSTALK)

SCHWARTZ:  You know that, Dan.  Come on.

ABRAMS:  Well, you know what, some judges come on.  (INAUDIBLE) some judges are allowed...

SCHWARTZ:  No, no.

ABRAMS:  What do you mean no?  I‘ve had judges on this program.  Don‘t tell me no.

SCHWARTZ:  But on a case that they are handling it‘s against their ethical duty...

ABRAMS:  Depends on the...

SCHWARTZ:  ... to talk about a case that they‘re handling.  Come on.

ABRAMS:  All right.  I don‘t—Mr. Gallup, do you know—I dong know what the rules are in Nebraska about this.  I mean usually that‘s the case, but...

GALLUP:  Ordinarily a judge will have somebody else come on and speak for the judge. 

ABRAMS:  Yes.

GALLUP:  That‘s usually the procedure.

ABRAMS:  Yes.  All right.  Bill Gallup and David Schwartz, thanks a lot. 

Got to wrap it up.

SCHWARTZ:  Thank you.

ABRAMS:  Appreciate it.  Coming up...

GALLUP:  You‘re welcome.

ABRAMS:  ... the juror who convicted Scott Peterson and gave him the death penalty is now sending letters to him on death row and he‘s writing back.  She joins us live.

Plus, members of both parties in Congress outraged, the FBI searched a congressman‘s office even though he‘s being investigated for bribery.  The question, should members of Congress really be treated differently from everyone else? 

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

Police are looking for Gerald Young.  He‘s 37, six-four, 180.  Was convicted of indecent sexual contact with a child, has not registered his address with the state.  If you‘ve got any information on his whereabouts, please contact the Texas Department of Public Safety, 512-424-2000.  We‘ll be right back.

(COMMERCIAL BREAK)

(NEWS BREAK)

(BEGIN VIDEO CLIP)

RICHELLE NICE, PETERSON JUROR TURNED PEN PAL:  Little man.  That‘s what I call him.  Conner.  That was the hardest for me.  Because as I said, that was his daddy who did that.  You know, his daddy should have been the protector of him.  And instead, he took his life.

(END VIDEO CLIP)

ABRAMS:  Richelle Nice, one of the 12 jurors who convicted Scott Peterson and sent him to death row.  Well now she‘s apparently become his pen pal since last August.  Now “People” magazine has exclusively obtained the letters from Scott Peterson to Nice.  They‘ll be in the upcoming issue of the magazine.

In the meantime, Richelle Nice is here with us, along with Elizabeth Gleick, the assistant managing editor of “People” magazine.  Thanks to both of you for coming on the program.  Appreciate it.

UNIDENTIFIED FEMALE:  Thank you.

ABRAMS:  Richelle, nice to see you back here.  Let me ask you, how did you first decide to write a letter to Scott Peterson? 

NICE:  It was kind of advised by my therapist as a way to release some of my anxieties regarding the trial.

ABRAMS:  But it wasn‘t supposed to be sent, right?  Initially, it was just going to be something you‘d write? 

NICE:  Right.  And then what had happened is once the story came out, and in “People” magazine—or “People” magazine called me, Johnny Dodd (ph) called me to ask me had I sent it or I don‘t know.  I just—I ended up sending the letter. 

ABRAMS:  And were you surprised that he responded?

NICE:  Yes.

ABRAMS:  What did he say?

NICE:  He said he was more worried about—and concerned about me and how the trial affected me and my family and the autopsy pictures.  It must have been hard for us to look at those.  And he just said—it was two and a half pages, but there was one line of I didn‘t kill my family... 

ABRAMS:  Sounds like he was kind of trying to charm you, almost.

NICE:  It was a typical Scott letter.

ABRAMS:  And did you write him again then, sort of saying that in your next letter? 

NICE:  Yes, I did.  I actually wrote him saying that it was a typical Scott letter and that I want him to be honest with me.  And so his response to that was, he was honest with me, because he did not kill his family.  And he felt he addressed everything that I had brought to his attention. 

ABRAMS:  How many letters did you write to him and did he write back?

NICE:  I have probably written him more because the turnaround time for my letters to get to him is about three weeks.  It takes about three weeks to a month for him to get my letter and then once he gets my letter, if he responds, I get it right away. 

ABRAMS:  You were pretty adamant after the verdict and I remember the words that you used at the time talking about him, talking about Conner.  Why would you want to be in correspondence with him? 

NICE:  Why? 

ABRAMS:  Yes, I mean if he is a murderer.

NICE:  He is a murderer.  But I think, Dan, if you look at it, how many of us watch “A&E” and look at the serial killers and people, you know, it‘s an interest to people.  And I have to say I was interested and I want to—I believe that one day Scott will confess.

ABRAMS:  And that‘s what you are hoping, is the eventually he‘s going to confess in one of these letters? 

NICE:  Yes.

ABRAMS:  Do you think it‘s going to actually happen? 

NICE:  I can‘t predict the future.  I don‘t know.

ABRAMS:  Because I doubt it based on knowing Scott Peterson.  I‘d be real stunned if he ever comes clean and confesses, particularly in a letter, but Elizabeth Gleick, you‘ve read the letters.  What was most surprising to you? 

ELIZABETH GLEICK, “PEOPLE” MAGAZINE:  Well I think the letters are kind of riveting in that he‘s writing to somebody who has sent him to death row and he‘s incredibly solicitous of her and as Richelle just said or as you said, he‘s very charming.  He really wants to know how she‘s doing. 

He follows every aspect of her life.  He responds very directly to the problems that she mentions and the day-to-day stuff and there‘s also this kind of disconnect.  He talks about missing his family.  He insists he‘s innocent.  But there is no real personality there.  No real emotion. 

ABRAMS:  You know, Richelle, after the verdict, again, you seemed angry. 

NICE:  (INAUDIBLE)

ABRAMS:  And do your letters to him continue to reflect that anger? 

NICE:  Yes and no. 

ABRAMS:  What do you mean? 

NICE:  I mean, I try not to bash him as much as I can, but I‘m very adamant he killed his wife, he killed his son and I let him know that‘s how I feel and I feel that you know it was wrong.  And I am angry at him and I‘ve told him so.  I mean to me, this is a loss of three lives and one life that didn‘t even get a chance.  But, ultimately, this is a loss of three lives.

ABRAMS:  Yes.  Are you going to continue writing him? 

NICE:  I will.  I‘m going to actually write him and let him know that I went public because I told him I would.

ABRAMS:  Yes.  Are you going to visit him? 

NICE:  I would have to ask him for a visiting form and...

ABRAMS:  Would you want to visit him? 

NICE:  No.  But if he ever gets executed I‘ll probably be there if I‘m alive.

ABRAMS:  All right.  Richelle Nice, thanks a lot for coming on the program.  Elizabeth Gleick thanks to you.

NICE:  Thank you.

ABRAMS:  Coming up, the FBI raids a congressman‘s office on Capitol Hill as part of a bribery investigation.  Other congressmen are outraged, saying the FBI doesn‘t have the authority to do that.  Why not?

And later, I said the Durham D.A. should drop the charges against three Duke lacrosse players accused of rape.  Many of you angry at me.  I answer the critics coming up. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, should congressional leaders get a heads up if the FBI searches their offices if they‘re suspected criminals?  They say they should.  We debate after the break. 

(COMMERCIAL BREAK)

ABRAMS:  President Bush stepping in today between the Department of Justice and congressional leaders demanding the FBI return documents seized from Congressman William Jefferson‘s Capitol Hill office Saturday night.  The president ordering justice to seal any documents taken in the raid for 45 days. 

Quote—“This period will provide both parties more time to resolve the issues in a way that ensures that materials relevant to the ongoing criminal investigation are made available to prosecutors in a manner that respects the interest of a co-equal branch of government.”

Jefferson is a Louisiana Democrat.  He‘s being investigated for allegedly taking hundreds of thousands in bribes to help a company market Internet and cable TV technology in Africa.  He denies any wrongdoing.  Here‘s how he reacted to the president‘s move today. 

(BEGIN VIDEO CLIP)

REP. WILLIAM JEFFERSON (D), LOUISIANA:  (INAUDIBLE) but I think it‘s a step in the right direction.

(END VIDEO CLIP)

ABRAMS:  Now our congressional leaders say that no American regardless of position is above the law.  Speaker Hastert and Democratic leader Nancy Pelosi sent a letter to the Justice Department demanding they stop reviewing the documents and turn them over to Jefferson immediately.  They say the constitutional separation of powers and the practice of the past 215 to 220 years demand in effect that the offices of members of Congress not be subject to searches by the FBI.

Kris Kobach is a former council to Attorney General John Ashcroft and a constitutional law professor at the University of Missouri at Kansas City.  Professor, good to see you back on the program.  Appreciate it.  All right, what do you make of this argument? 

KRIS KOBACH, FORMER COUNSEL TO A.G. ASHCROFT:  Well I think the—it‘s a pretty bizarre extension of the separation of powers argument.  We learned back in the Watergate tapes more than 30 years ago, in that case of the U.S. Supreme Court, that you can‘t use the separation of powers argument to stand in the way of a criminal investigation.  One branch can‘t just shout separation of powers and stop a criminal investigation from continuing and clearly the FBI had probable cause to seize these documents in the bribery case.

ABRAMS:  And you know there is something that seems a bit hard to accept, that these are the Congress people who are representing the people, that the people‘s house, that they are the ones saying that we shouldn‘t be treated like the rest of the people.

KOBACH:  Well, exactly.  In essence, there—this is a public house, these offices of the Congress.  And furthermore, they are making the argument of the speech or debate clause...

ABRAMS:  All right, let me read from that.

(CROSSTALK)

ABRAMS:  Let me read from that and...

(CROSSTALK)

ABRAMS:  So this...

(CROSSTALK)

ABRAMS:  That particular clause says senators and representatives shall in all cases except treason, felony and breach of the peace be privileged from arrest during their attendance at the session of their respective Houses and in going to and returning from the same and for any...

(CROSSTALK)

ABRAMS:  ... speech or debate in either House they shall not be questioned in any other place.  Go ahead. 

KOBACH:  And the Supreme Court has said very clearly that that only concerns documents and spoken material concerning legislation.  You are privileged from being arrested for things you say in Congress regarding legislation and documents concerning legislation.  But note also that there is an exception in there for felonies and that‘s precisely what we‘re talking about here, a felony...

ABRAMS:  But isn‘t the concern...

KOBACH:  ... bribery.

ABRAMS:  Isn‘t the concern that when they go in there to investigate these crimes they may end up coming upon other materials that relates to legislation?

KOBACH:  Sure.  And that‘s why the Justice Department and the FBI took extraordinary precautions in this case.  They had what‘s called a filter team go in and execute the search warrant, which by the way a judge approved, and then a separate team of attorneys will go through that material, separate the incriminating evidence from any other legislative material and then only the incriminating evidence will be viewed by the attorneys prosecuting the case. 

I mean to accept the other side‘s argument here, that a member of Congress can turn his office into a criminal sanctuary.  If he commits a murder he can take the murder weapon and stash it between two bills and hide it in his office and the Justice Department can never touch it.  It‘s a really bizarre distortion of the concept of separation of powers.

ABRAMS:  And this—here‘s what Representative Jefferson was saying on Monday about the raid and the issue of the separation of powers.  Here‘s what he said.

(BEGIN VIDEO CLIP)

JEFFERSON:  I‘m told by people who know this better than I do, constitutional scholars, that there has not been a search or a raid by a search warrant of any office for any member of Congress in the history of the Congress and that is a violation of separation of powers (INAUDIBLE) happened. 

(END VIDEO CLIP)

ABRAMS:  What about that? 

KOBACH:  Well look, that was similar to the argument that President Nixon made and was rejected by the U.S. Supreme Court that the separation of powers prohibits a criminal investigation from obtaining evidence in a criminal case.  That of course being the Watergate case.  And by the way, the FBI has been seeking this evidence since August.  They already tried to play nice.  A subpoena was issued.  They asked the congressman for this evidence and he has been resisting for the better part of a year.

ABRAMS:  Why do you think then, Professor, that it‘s been bipartisan in this regard?  That we‘ve been seeing leaders both Republican and Democrat?  Is it because they are all congressman?  I mean that‘s the one thing they all have in common.

KOBACH:  You know, it seems to me that maybe they are rallying to protect the ultimate perk of office and that is that you get to turn your congressional office into some kind of sanctuary, but you know that is the people‘s office and the people are not above the law and nor should congressmen be.  You can‘t have a place where you can hide criminal evidence and that‘s precisely what the congressman appears to be doing.

ABRAMS:  Final question, but is there an argument that there has been a practice in place apart from the strict legalities, that there has been a practice, an institutional respect, as some of these Congress people like to say, that has prevented that anything like this from happening in the past?  And some of them are saying look, we at least should have just gotten a head‘s up.

KOBACH:  Well, it is correct to say that there is institutional respect and that‘s why the Department of Justice bent over backwards to create this filter team and also to try to just get the evidence without searching his office.  On the other hand, the head‘s up argument that really doesn‘t square because ordinary members of the public, we don‘t get a head‘s up when the government searches our house.  And obviously, you could give a head‘s up, that‘s a signal to the congressmen to move the incriminating document somewhere else, so the head‘s up part doesn‘t really make sense. 

ABRAMS:  All right.  Kris Kobach, thanks again for coming back on the program.  Appreciate it. 

KOBACH:  My pleasure. 

ABRAMS:  Coming up, I said the D.A. overseeing the Duke lacrosse rape investigation should drop the charges against the players.  I respond to your criticism.

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

Authorities need your help finding Jasper Wiley.  He‘s 24, six-foot, 165, was convicted of aggravated sexual assault of a child, has not registered his address with the state.  If you‘ve got any information on his whereabouts, Texas would like to hear from you, 512-424-2000.  We‘ll be right back.

(COMMERCIAL BREAK)

ABRAMS:  Time now for “Your Rebuttal”.  Based on all of the evidence we know, I‘ve been calling for the Durham district attorney to drop the charges against the three Duke lacrosse players and I asked tough questions of our former prosecutor guests. 

Greg writes, “What‘s your problem?  You never stated on your show that the D.A. should drop the charges in the Michael Jackson case or the Kobe Bryant case.  Explain this Mr. so-called reporter or lawyer, whatever you think you are.”

That‘s an easy one, Greg.  I didn‘t say it in those cases because there was evidence against both of them.  In the Bryant case, inconsistent statements by Bryant, her blood on his shirt in addition to her statement.  In Jackson‘s case, witness accounts and corroboration. 

Nevertheless, I also said I thought they would never get a conviction of Bryant because there were too many problems with her story and I also said the Jackson case would be a tough one, but here her account is the only evidence and it‘s filled with holes.  This case is far weaker than either Jackson or Bryant.  And Greg, I like Mr. so-called reporter or lawyer.  I think the name might stick.

Arlene Weiss from Hastings, New York, “You go, Dan.  I believe you‘re the only one who is searching for the truth.”  Thank you.

From Miami, Florida, E. Hugo Bargioni, “The Duke case seems to have unleashed your reservoir of talent.  In fact, given your grilling skills, you deserve the nickname King of Legal BBQ.”

Rob Gatties from St. Joseph, Michigan asks, “Dan, I have just one question for you.  What if it was your daughter?  Would you still feel the same?”  As if that‘s a tough one, Rob?  If there were this many holes in my daughter‘s story, I‘d feel sorry for her, I‘d stick by her, but I‘d also understand why the D.A. was dropping the charges. 

And Maggie adds, “Your attitude towards the victim nauseates me.  What would you say if the victim were a white female?”

Oh, I would say drop the charges.  I‘m not going to let the race baiters turn this into a race case. 

Quincy Jones from Maryland, “Why not keep your nose out of the Duke case?”  Because I‘m the only one who is talking straight about the case. 

Craig Henry on my heated debates with our guests.  “Let me commend you on your effort to get your guests to answer simple questions.  I‘m disappointed in them for placing professional loyalty ahead of intellectual honesty.”

Finally, yesterday, we told you about two women ages 75 and 73, suspected of murdering two homeless men to cash in on life insurance policies they tricked them into buying.

Toni Maita in Walnut Creek, California, “It‘s terribly hard to take the headline two grannies suspected of murdering men to cash in on insurance policies seriously when you use the word grannies.  It conjures up the image of Twitty Bird‘s owner, that whacky comical granny who beats off Sylvester with her umbrella.”

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

(COMMERCIAL BREAK)

ABRAMS:  We are just about out of time.  I should say, we didn‘t get to touch on “American Idol” today.  It seems everyone else is talking about the big finale of “American Idol”.  The reason we didn‘t talk about it is because I didn‘t watch it and I don‘t really much care. 

Now I know, I know, there are a lot more people who watch “American Idol” than watch this program, 36.4 million watched “American Idol”.  We don‘t get quite that viewership.  I don‘t know.  I just—I don‘t—my producer Meghan loves it.  I hear about it every time I come in.  I just wasn‘t into it. 

All right.  Coming up next, “HARDBALL” with Chris Matthews.  A big night ahead on MSNBC.

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