updated 6/13/2006 12:32:11 PM ET 2006-06-13T16:32:11

Guests: Jim Fannin, Jerome Polaha, Fred Riglesberger, Clint Van Zandt, Henry Lee, Paula Canny, Norman Early, Yale Galanter, Nelda Luce Blair, Geoffrey Fieger

SUSAN FILAN, GUEST HOST:  Coming up, a judge shot at a Reno, Nevada courthouse.  SWAT teams on the scene.  The shooter apparently still on the loose. 

The program about justice starts now. 

Hi everyone.  I‘m Susan Filan in for Dan today.  Breaking news out of Reno, Nevada.  A family court judge has been shot in the chest through a window at the courthouse.  The shooter is still on the loose and police are searching nearby parking garages for what they believe is a sniper. 

Joining me now, KOH radio acting news director, Jim Fannin.  Jim, can you please bring us up-to-date?  What‘s the latest?

JIM FANNIN, KOH RADIO NEWS DIRECTOR (via phone):  Well, what we understand is that Judge Weller was standing in a window and was apparently shot by a sniper, maybe as many as four times at our new justice center in downtown Reno, the Mills Lane Justice Center.  It‘s still a very tense situation because we don‘t have the shooter in custody.  There are lots of places to hide in downtown Reno, numerous parking garages right down there in our casino core and other tall buildings, so there‘s plenty of places for a shooter to be or to hide, so the whole area is cordoned of off. 

They‘re also locking down courthouses in Las Vegas as a precaution.  Now Chuck Weller is someone who is very well known in the community, hosted a radio program with us for many years called “You and the Law”, not known as being especially controversial, except that he is a family court judge and we do have something of a father‘s rights movement in this area, and you know, family courts can always be controversial, but that‘s all speculation.  We have no idea what a possible motive here could be. 

FILAN:  Jim, he was in another judge‘s chambers, not his own chambers, is that correct? 

FANNIN That I have not heard yet. 

FILAN:  All right.  And when you say four shots, do you know if four shots hit the judge or it was four shots fired? 

FANNIN:  From what we understand, four shots hit him in the chest.  We don‘t know how many shots were fired.  And again, we can‘t tell you that with any certainty, because nothing has been formally released about his condition from the local hospital, which is also locked down, which is what they do whenever someone prominent like this is attacked.  They have got the hospital locked down too, so very little information coming out of there. 

FILAN:  Jim, we also have the—a judge on the phone.  We‘re joined now by Judge Jerry Polaha.  He‘s the chief judge of Washoe County, Nevada.  He knows Judge Weller.  He‘s in lock-down at the courthouse right now. 

Thank you so much for joining us, Judge.  How are you?  Are you all right? 

JUDGE JEROME POLAHA, LOCKDOWN IN RENO COURTHOUSE (via phone):  Yes, we‘re OK.  Obviously we‘re quite distraught and upset when something like this happens, especially when it‘s a friend involved.

FILAN:  Now was he in your chambers when this happened? 

POLAHA:  Oh, no, he was in his own chambers. 

FILAN:  He was in his own chambers. 

POLAHA:  Own chambers, yes, his building is right next to the river, and evidently you could see into the windows from the outside.  They‘re not protected in any way. 

FILAN:  And did he have anyone else in chambers with him at the time? 

POLAHA:  We don‘t know about that.  I heard originally that he was by himself and then I heard that perhaps his administrative assistant was there with him, so we don‘t know. 

FILAN:  Right.  And do you any idea whether he was the intended target of this shooting or it‘s a random shooting, they just happened to get him? 

POLAHA:  We don‘t know about that either.  We‘re going through the files to see if there were any type of case that stands out, but you know, you‘re dealing with family court cases, children are involved, houses, property. 

FILAN:  Money. 

POLAHA:  Money, right, right...

FILAN:  Brings out the worst in the best people. 

POLAHA:  Yes, and very emotional. 

FILAN:  Now, where are you now?  Are you locked inside your own chambers? 

POLAHA:  Yes but now we‘re in a separate building.  Our building is across the street.  We have the general jurisdiction in this building where I am, that‘s locked down.  Then we have the family court, the justice court, the municipal court and the district attorney‘s building, the Mills Lane structure, which is across the street. 

FILAN:  All right.

POLAHA:  So he was in that third floor of that building on the north side. 

FILAN:  What‘s the feeling there now? 

POLAHA:  Well, we‘re hoping that one, Chuck recovers and then two, that they catch whoever was—that has done this.  We haven‘t heard any word on either of those, too.  I just heard listening to you about the four shots.  I was unaware of that. 

FILAN:  Right.  Right.  Judge, we also have Officer Fred Riglesberger with us; he‘s from the Reno Police Department.  He‘s also there on the scene.  Officer, do you have any idea where this shooter was located? 

OFFICER FRED RIGLESBERGER, RENO POLICE DEPT. (via phone):  We don‘t know that.  We know that as the judge said, his office does face the Truckee River and there are many buildings there.  One search was in the Galleria Parking Garage, which is there next to the river on the opposite side of the river, other than that, no.  There‘s three areas of interest that law enforcement are searching now for suspect or suspects.  But other than that, we don‘t know anything more about that. 

FILAN:  Officer, is it fair to assume that the shots were fired from outside the building, since they were shot through the window?

RIGLESBERGER:  We don‘t have a confirmation on that at this time.  We‘ve heard reports that it had been from outside, but also that it could have been from inside...

FILAN:  And do you have any leads on who this person is? 

RIGLESBERGER:  Not at this time. 

FILAN:  All right.

RIGLESBERGER:  Not at this time. 

FILAN:  Wow.

RIGLESBERGER:  We do know that the judge‘s condition, he‘s with his family now at one of the area hospitals and the last report I got is that he‘s conscious and talking.

FILAN:  Wow.  All right.  We also have with us Clint Van Zandt; he‘s a former FBI investigator.  He‘s an MSNBC analyst.  Clint, this is absolutely the worst nightmare for a public servant who gets up, goes to work every day, to serve his community and is taken out by a gunshot.  I hope when I say taken out, I don‘t imply that he‘s not going to survive this, of course we all hope that he will.  What kind of a guy, Clint, are we looking for? 

CLINT VAN ZANDT, FORMER FBI PROFILER (via phone):  Well, you know Susan, we‘ve watched these assaults on the judiciary take place before.  You‘ll of course recall back in March of 2005, we witnessed both the murder of U.S. District Court Judge Lefkow‘s husband and mother in their Chicago home and then shortly thereafter, we saw that human tsunami by the name of Brian Nichols, sweep through the Atlanta courthouse and kill Judge Barnes and other people there, so when we get into the area of family court, like any other legal situation, 50 percent of the people are going to go away losers. 

Fifty percent of the people are going to go away, feeling that they weren‘t heard necessarily or that something was done wrong against them.  Now the challenge is as you rightfully asked, was Judge Weller the specific target?  Was someone just attempting to shoot the judiciary?  We just got the figures for 2005 in, telling us that almost 17,000 people were murdered in the United States last year.  We hope this terrible you know onslaught of murders number one, and number two, assault against the judiciary, even though we work so hard across the country to improve security inside the courthouse...

FILAN:  Right.

VAN ZANDT:  ... if it‘s like you suggest, a sniper on the outside, that‘s a whole another level of security that‘s needed.

FILAN:  But an assault on a judiciary, I mean if you don‘t like the judge‘s ruling take an appeal.  For goodness sakes don‘t take out a weapon and take the law into your own hands.  It‘s absolutely one of the worst kinds of crimes that we have to face, it‘s difficult for judges to go to court every day, make decisions affecting people‘s lives, it‘s difficult for law enforcement to solve these.  Thank you very much, Jim Fannin, Judge Polaha, Fred Riglesberger, and Clint Van Zandt.  I‘m so sorry we have to talk about this. 

Coming up, a California housewife accused of killing her husband, she says it was self-defense.  She‘s representing herself and she‘s called everyone from her own children to a psychic to testify.  Today, closing arguments began. 

And later on, a former beauty queen is under arrest for having sex with her student.  But he‘s 18 and she‘s 25.  Now she‘s facing up to 20 years behind bars. 

Plus, we have not heard from the D.A. in the Duke lacrosse rape case in more than a month.  Is it time for Mike Nifong to break his silence? 

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

(COMMERCIAL BREAK)

FILAN:  Closing arguments are underway in a bizarre murder trial in California.  Susan Polk, a California housewife, is accused of stabbing her husband to death in 2002.  Polk is acting as her own lawyer, saying she acted in self-defense, after he repeatedly beat her for years.  Well she doesn‘t dispute that she stabbed him.  She says he died from a heart attack and not from the 20-something knife wounds she inflicted on him. 

From Polk‘s claims of being psychic and predicting the September 11 attacks to calling the prosecutor a name caller and a baby, and to her own son‘s testimony that Polk is bonkers, that she‘s cuckoo for Cocoa Puffs, the trial has been anything but dull.  Joining me now is “San Francisco Chronicle”  reporter Henry Lee who was in the courtroom today and throughout the trial.  Hello Henry.  Thanks for joining us.

HENRY LEE, “SAN FRANCISCO CHRONICLE” REPORTER:  My pleasure.

FILAN:  And also with us defense attorney Paula Canny.  Thank you, Paula, for joining us.  Henry, what happened in court today? 

UNIDENTIFIED FEMALE:  Thank you.

LEE:  Well, today the prosecutor gave part one of his closing.  He‘s going to have a second chance after Susan Polk takes the—provides her closing, so what the D.A. said is Susan Polk should be found guilty of first-degree murder.  She lied about all the circumstances and she‘s lied to the jury throughout is what the D.A. told the jury. 

FILAN:  How did he do?  Was he convincing?  Was he persuasive? 

LEE:  I think he was.  I think he laid out the important stuff.  Very clearly, all through this three-month trial, we‘ve heard a lot of side issues, a lot of what the D.A. called background noise.  It was very refreshing to see the facts laid out very succinctly in just a couple of hours. 

FILAN:  Now from what I heard, she got—Susan Polk got to him; she got his goat and got under his skin.  Did any of that come through his presentation today? 

LEE:  (UNINTELLIGIBLE) not so.  The person who was really more concerned today was Susan Polk herself.  Repeated calls for a mistrial on the grounds of judicial and prosecutorial misconduct.  She was objecting to almost everything the D.A. said, but all those mistrial motions have been denied as they have been throughout this trial. 

FILAN:  And Paula, what did you observe today from the prosecutor‘s closing argument?  Did you see some opening for Susan Polk to maybe prevail in this case? 

PAULA CANNY, DEFENSE ATTORNEY:  Well, unfortunately for—it‘s windy out here.  Unfortunately for Susan, she‘s her own worst enemy.  I mean, it wasn‘t that Paul Sequeira was so great today, though he was pretty good.  She was that obnoxious.  I mean her decision to represent her has basically undermined her ability to be sympathetic to the jury, so it wasn‘t so much that Paul was good, though he was very effective.  It‘s that Susan was so bad and he was clever in how he‘s framed this case. 

He‘s framed it that Susan is a liar, and if you can‘t believe her, then you have to find her guilty of first-degree murder, and the thing is, she could be a little bit crazy, but it still doesn‘t make her guilty of first-degree murder.  And I don‘t think that she‘s going to be capable of drawing that distinction. 

FILAN:  Given that she‘s her own worst enemy and the jury may hate her, do you think they could put their emotion against her aside and just focus on the evidence in this case, which based on what you‘ve heard, is it questionable evidence?  Could it go either way for her...

(CROSSTALK)

FILAN:  ... or is it a slam-dunk...

CANNY:  It is...

FILAN:  ... for the prosecution no matter who you like or who you don‘t like in this case? 

CANNY:  Well she‘s made it more—she‘s made it easier for the prosecution by not being likeable, but my position is about the crime itself, it‘s never been that strong of a case for the prosecution.  A well defense case, given the fact that the victim, the decedent in this case starting having sex with her when he was 14, controlled her for at least six years before it was even made public...

FILAN:  But wait a second.  Wait a second...

(CROSSTALK)

CANNY:  Yes.

FILAN:  That may be background noise.  That may—what I‘m asking you is just to focus in on the facts that the prosecutor has to work with, not the who done it stuff of the past, which is really fallacious and fun to talk about on a different day, but we‘re at closing argument now.  Are the facts so strong for the prosecution that Susan Polk really can‘t say I stabbed him 20 times, but I didn‘t kill him.  He died of a heart attack or it was self-defense...

CANNY:  Well no...

FILAN:  ... and I was defending myself?

CANNY:  Well that‘s the point that‘s important in terms of how you look at this.  If you look at what Susan‘s tried to do is show the jury the movie of her life as opposed to a snapshot of what happened in the pool house.  And if you see the movie of her life, then the snapshot of what happened in the pool house relative to her belief that he was attacking her is that‘s why what happened in the past is relevant and it goes to the battered woman‘s syndrome...

FILAN:  Right...

CANNY:  ... that she...

FILAN:  And when you talk about a movie of her life, I want to play a bit of sound for both you and Henry.  This is the defendant, Susan Polk, talking about just that, a movie of her life.  Take a listen.

(BEGIN VIDEO CLIP)

SUSAN POLK, ON TRIAL FOR HUSBAND‘S MURDER:  Winona Ryder, I mean she knows what jail is like (UNINTELLIGIBLE).  She‘s also a very good actress.  Gosh, there‘s just a lot of wonderful actresses out there.  You know Susan Sarandon, she‘s a great actress. 

UNIDENTIFIED MALE:  (UNINTELLIGIBLE)

POLK:  Felix?  Oh maybe Anthony Hopkins could do it except for Hannibal Lecter I think is a more likeable character than my husband was.

(END VIDEO CLIP)

FILAN:  All right.  So Henry, here we see this almost sweet, charming woman talking about who wants to play her in the movie.  Did she come across like that in court?  Apparently not. 

LEE:  Well, I think it‘s very interesting on one hand, she says that this is a movie of my life, but in the next breath, she told jurors and the judge and the D.A., this is not a movie, this is not a script, I am fighting for my life, yet she tells jurors in her opening statement, you know there are plenty of movies and books where you don‘t know the ending.  Let me fill it in for you.

Keep an open mind and here she is talking about Winona Ryder, so there‘s a lot of extra things that are going on.  Will the jury consider what she‘s said as possibly delusional?  That‘s one thing they must look at in order to find what—to convict her of or to acquit her outright. 

FILAN:  Well Henry Lee, Paula Canny, thanks so much for bringing the flavor of this very bizarre trial to us in person. 

CANNY:  Thank you.

FILAN:  And now to the Duke rape investigation where another day has gone by and we have not heard from the district attorney prosecuting this case, Mike Nifong.  All this as more questions are raised about the accuser‘s credibility.  The defense has filed numerous motions over the past three months, all pointing out what they say are flaws in the prosecutor‘s case. 

The defense is publicly building its case and Nifong is doing just the opposite.  We have no idea what he‘s doing behind closed doors, and that raises the question, should the D.A. break his silence and reassure the public of his confidence in this case? 

Joining me now, criminal defense attorney Yale Galanter and former Denver district attorney, Norman Early.  Norm, what do you think?  Do you think the D.A. should, yes, maybe break his silence now? 

NORMAN EARLY, FORMER DENVER DISTRICT ATTORNEY:  I think Mike Nifong is doing exactly the right thing. 

FILAN:  You‘ve got to be kidding me.

EARLY:  He—every single day that he proceeds with this case, he is saying I‘m confident.  Look, the problem here is that he can‘t let the media and defense attorneys make him depart from a normal, proven, prosecutor strategy for success...

FILAN:  But, Norm, he started it...

EARLY:  ... which is conduct...

FILAN:  He departed from day one. 

(CROSSTALK)

FILAN:  He put this train on the track.

EARLY:  The fact that he did do that and the fact that he did that does not mean that he can‘t put it on the right track, instead of staying on the media track.  He should in fact stay with what he‘s got and deal with this case...

FILAN:  What has he got? 

EARLY:  You don‘t know that and I don‘t know that, but he does know it and as long as he believes he can prove this case beyond a reasonable doubt, he should stay with this case and every day he stays with the case, he‘s saying to members of the public, I believe I can prove this case. 

FILAN:  Wow.

EARLY:  He should not jump in to the media circus.  There are enough clowns in the media circus and he shouldn‘t become one of them.

FILAN:  Yale...

(CROSSTALK)

FILAN:  ... you know, this may be one of those times we agree.  Oh my word. 

YALE GALANTER, CRIMINAL DEFENSE ATTORNEY:  Yes.  History is being made this afternoon, Susan.  He‘s got to come out.  You really hit the nail on the head.  He gave 70-plus interviews in the start of this case.  He promised all kinds of stuff.  You know, toxicology reports, DNA evidence, photographic lineups, and none of it has come true. 

Right now we‘re not even dealing with the lack of public confidence.  We‘re dealing with why did he go to a judge?  Why did police go to judges and not disclose everything that he had?  I mean all this information he turned over to defense lawyers that‘s been leaking out to the media that you and I have been discussing for the past weeks, why weren‘t judges and official neutral magistrates made aware of all this?  That‘s what he needs to come out and explain.  He needs to explain...

EARLY:  But Yale...

GALANTER:  ... why the facts, why the documents, why the affidavits don‘t match up what he said in those 70-plus interviews, Norm.  He is getting absolutely crucified in the media and it‘s justly so, because not a single word that he told us in the beginning of this case has rung true, you know three months after these poor boys have been indicted. 

FILAN:  Yale, Norm, look, I‘m the first person to say you don‘t try your case in the media, but he did start trying in the media, now the media has gotten a hold of it.  The defense has put stuff in play that we as John Q. Public (ph) are focusing on.  For example, take a look at this.

This is the accuser saying—she said some of the guys from the party pulled her from the vehicle and groped her.  She told me that no one forced her to have sex.  That‘s from a responding police officer.  Norm, when you get stuff like that in the public‘s eye that the accuser herself is saying, no one forced me to have sex and yet here she is saying that she was gang raped by three male lacrosse players, don‘t you think, please agree with me Norm, how could you disagree with me?  He‘s got to do something. 

EARLY:  Susan, this is not the first time that a rape victim, when being questioned by someone who may not be sensitive to the needs of a rape victim does not tell them exactly what happened to them.  That‘s why we have victim advocates.  That‘s why we have police officers who are trained in dealing with rape victims.  That‘s why rape victim‘s stories are far more accurate and less contradictory when they‘re dealing with someone who understands the plight to which they are going. 

FILAN:  Norm, you know...

EARLY:  It does not surprise me now...

FILAN:  ... you know...

EARLY:  ... nor it ever will. 

FILAN:  You know I agree with you.  Why can‘t Nifong come out and say you what just said.  Why can‘t he inject...

EARLY:  Because...

FILAN:  ... some reason back into this debate?

EARLY:  When he starts back down that road of saying things, then the question becomes, why doesn‘t he say more and here‘s another thing that we want an answer from Nifong and here‘s another thing over here that we want an answer on.  And the more he engages in that kind of conduct, the more he detracts from this case in a courtroom.  He should not try it to the public.  He should try it to the only 12 people who matter, which is a jury.  Unfortunately...

(CROSSTALK)

FILAN:  Yale...

EARLY:  ... the defense has done a great job...

GALANTER:  Norm, Norm...

EARLY:  ... of contaminating a jury, no question.

FILAN:  Yale, Yale...

(CROSSTALK)

FILAN:  Wait a second, Yale.  I want to ask you, you know, Norm is putting up a good point.  You know if we hear a little bit, we‘re going to want a hear a lot.  Well here‘s one I want to hear an answer to.  Take a listen to this one.

She heard that the accuser was sexually assaulted, which she stated is a crock and she stated that she was with her the whole time until she left.  And the only time the accuser was alone was when she would not leave and that time minute was less than five minutes.  That‘s a Durham police officer saying what the other dancer, presumably the other eyewitness, presumably a key to this case, had to say about the accuser‘s accusations.  It‘s a crock and it couldn‘t have happened because she was with her the whole time except for five minutes.  Yale, shouldn‘t he say something about that? 

GALANTER:  Yes.  He‘s got to say why did the complaining witness say to Kim Roberts, we should go back in after they were both presumably safely in the car, and let‘s make some more money.  He‘s got to explain why does the complaining witness say Kim Roberts was in the bathroom with me while I was getting forcibly raped by three men and she assisted.  Not only did she assist, she stole my property and money.  He‘s got to explain why none of those facts and circumstances...

EARLY:  Susan...

GALANTER:  ... were explained to this judge when they went to get these warrants for these photo I.D.s and to search these boys‘ places, Susan, because what he really did was he misled the court.  He misled the court by omitting material facts.  We don‘t know what a neutral magistrate would have decided...

(CROSSTALK)

GALANTER:  ... if he would have had all these affidavits and information in front of him.

FILAN:  That‘s a concern.  Norm, I want to give...

EARLY:  Susan...

FILAN:  We‘ve got to wrap it up.  I want to give you the last word, Norm...

EARLY:  Yes.

FILAN:  ... because you know usually you and I are the voices of reason and it sounds like oh my gosh, Yale is being reasonable.  You got to help me out Norm.  Save it for me.

EARLY:  Heaven forbid...

FILAN:  Exactly.

(CROSSTALK)

GALANTER:  He‘ll never agree with me Susan. 

EARLY:  We don‘t know whether the word crock is Kim‘s word, the police officer‘s word, the defense attorney‘s word.  We don‘t know whose word that is given the context and the way it has been played to us.  As far as things that were omitted or not omitted, Mike Nifong is a professional and I believe...

FILAN:  A professional what? 

EARLY:  A professional prosecutor and he will put in that affidavit what he needs to put into that affidavit and what his oath of office...

FILAN:  But that was so long ago and we‘ve heard so much since...

EARLY:  ... what his oath of office tells him...

FILAN:  I‘m just—I‘m starting to get worried, but that‘s going to have to be...

GALANTER:  Norm, you‘re a professional prosecutor, you would have never handled the case this way. 

FILAN:  I‘ve got to—that‘s a nice compliment. 

(CROSSTALK)

FILAN:  I‘ll end it on that.  Norm Early, Yale Galanter, thanks so much. 

GALANTER:  Thanks, Susan.

EARLY:  Thank you, Susan.  Yale.

FILAN:  Coming up, a 25-year-old Texas teacher under arrest.  She‘s facing 20 years behind bars for having sex with her student, but he was 18.  Should she even be prosecuted? 

Plus...

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  It wasn‘t for a carjacking because they left the car.  It wasn‘t for robbery because nothing was taken.  It comes down to that someone wanted her. 

UNIDENTIFIED FEMALE:  I mean what else is there? 

(END VIDEO CLIP)

FILAN:  A mother and father‘s search for their missing daughter. 

Police need your help.

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

Police are looking for your help finding Markus Hambrick.  He‘s 35 years old, five-foot-eleven, and weighs 172 pounds.  He was convicted of rape and he hasn‘t registered his address with the state.  If you‘ve got any information on his whereabouts, please contact the Mason County Sheriff‘s Office at 360-427-9670.  We‘ll be right back.

(COMMERCIAL BREAK)

(NEWS BREAK)

FILAN:  She‘s a first year Spanish teacher and cross-country coach, a former Texas beauty queen and today, 25-year-old Amy McElhenney is facing up to 20 years in prison.  She‘s charged with having sex with one of her 18-year-old students.  Charged even though the state‘s age of consent is 17.  Police say they learned about the alleged relationship when a student sent an anonymous note to a resource officer on counselor, referring to text messages the student had seen on McElhenney‘s phone.  McElhenney was interviewed by police and she signed a voluntary consent agreement allowing police to read the messages. 

Well, apparently they saw enough to charge McElhenney with a second-degree felony for an improper relationship with a student.  According to her arrest warrant, McElhenney denied any physical or sexual relationship with the student, but admitted to an inappropriate relationship.  And the student has filed an affidavit saying they‘d had sex at her apartment more than once.  But even if the relationship was sexual, is it fair to send a teacher to prison for having sex with a student who‘s legally of age? 

Joining me now, Nelda Luce Blair is a former Texas prosecutor, and Geoffrey Fieger, a criminal defense attorney.  Nelda, talk to us about this.  I mean OK, maybe the statute says any teacher having sex with any student is a crime, but if the legal age of consent is 18, why is this felonious conduct and why should she be prosecuted? 

NELDA LUCE BLAIR, FORMER TEXAS PROSECUTOR:  It has nothing to do with being fair.  That was your question, is it fair.  It‘s not—it is illegal.  It‘s not fair, it is illegal, and the problem here is that you have teachers and students, you have authority figures.  It is the law in Texas that no teacher can have sex with a student, no matter what age.  Legal age makes no difference, and that is absolutely why this woman is being prosecuted and should be prosecuted.

FILAN:  What about the fact that a lawmaker said that the lawmaker feels differently about 17-year-olds and 18-year-olds and really didn‘t intend for this statute to apply to 18-year-olds who are of age.  It says I feel differently about 17-year-olds than I do about 18-year-olds.  I don‘t necessarily believe the penalty for the two should necessary be the same.  That‘s State Representative Helen Giddings, Democrat, Dallas, Texas. 

So Nelda, there is a lawmaker saying that it may not be fair, it may not be right and yet you‘re so black and white on it. 

BLAIR:  I absolutely am black and white on this, because we are not talking about the age of the child and we are talking about students.  We‘re not talking about children or kids who have already left home, who live on their own, who make their own decisions.  We‘re talking about high school students... 

FILAN:  Nelda, let me just put the statute up for our viewers so they can follow this debate.  I want you to know the language of the statute itself says an employee of a public or private, primary or secondary school, commits an offense if the employee engages in sexual conduct, sexual intercourse, or deviant sexual intercourse with a person who is enrolled in a public or private primary or secondary school at which the employee works and who is not the employee‘s spouse.

So let‘s be clear.  This statute says if you‘re a teacher, you have sex with a student, bang, you‘re done.

BLAIR:  Absolutely.  Absolutely.  And you know what?  I think we might feel a little differently about it and I‘ll be interested to hear what Geoff has to say about this, if this were an 18-year-old girl and a 45-year-old teacher or how about the principal...

FILAN:  Oh, Nelda, don‘t egg Geoffrey on with the boy-girl thing.  Oh God, I can‘t even wait to hear what he has to say.  Geoffrey, let‘s hear it.

GEOFFREY FIEGER, CRIMINAL DEFENSE ATTORNEY:  Well you know I disagree with my good friend Nelda.  Look, they—on most state‘s books, it‘s a crime to commit adultery, and no one enforces it.  And prosecutors who are presented with these facts have the discretion not to blindly follow the law, because that promotes disrespect of the law.  When you‘re dealing with an 18-year-old male, who‘s old enough to go to Iraq, in many states, old enough to drink, old enough to do virtually anything that the law allows, to say that that‘s a crime. 

Now see, I don‘t disagree.  Perhaps a teacher, an authority figure, should be disciplined by firing in their employment, but the idea of wasting the criminal justice system to prosecute is absurd, and I don‘t think it matters if it‘s an 18-year-old male or an 18-year-old female. 

(CROSSTALK)

FIEGER:  I wouldn‘t feel differently.  And by the way, the way that law is written, it‘s not just a teacher, a custodian that has sex with an 18-year-old is guilty...

FILAN:  Or a student.

FIEGER:  A—somebody who works in the school cafeteria.  It says an employee. 

FILAN:  And Geoff, I think...

FIEGER:  That‘s just absurd. 

FILAN:  ... that goes right to the heart of this.  Because, Nelda, you‘re basically saying look, the statute says it‘s a crime, you have to prosecute.  Geoffrey is saying you‘ve got prosecutorial discretion.  But I think what‘s really at issue here is this coercive element that could exist between somebody and a figure of authority...

FIEGER:  Yes, it could.  It could...

FILAN:  No, wait...

FIEGER:  But that doesn‘t mean it did.

FILAN:  No, no, Geoff, you‘re going to like this question if you let me finish it.  Let‘s assume that this is an 18-year-old who as you say is mature and old enough and wise enough to go to Iraq and this is a teacher who didn‘t have a coercive influence on him, they just fell in love.  Why wouldn‘t this be something that the law didn‘t intend for her to go to prison for, for 20 years? 

(CROSSTALK)

FIEGER:  It not only is something that the law didn‘t intend her to go to prison for, it‘s something that shouldn‘t be enforced, just like they don‘t enforce adultery.  If they did, you‘d have to build 1,000 more prisons in this country.  It‘s absurd. 

(CROSSTALK)

FIEGER:  Prosecutors don‘t have to do this. 

(CROSSTALK)

FILAN:  All right and Nelda...

(CROSSTALK)

FILAN:  ... What‘s the harm here?  Why are you so upset, offended and outraged?  What‘s the injustice here that needs to be righted? 

BLAIR:  What I‘m outraged about is I‘m listening to Geoffrey say we should make these laws but not enforce them.  Where...

FIEGER:  Some of them you shouldn‘t...

FILAN:  But wait a minute.  Nelda...

FIEGER:  ... or you should use...

(CROSSTALK)

FIEGER:  ... or you should use common sense. 

FILAN:  Nelda...

FIEGER:  Laws should be enforced with common sense, shouldn‘t that be the rule? 

FILAN:  Nelda, please do better than that.  Please don‘t say this has to be enforced because it‘s on the books.  You know and I know...

(CROSSTALK)

FILAN:  I was a former prosecutor...

BLAIR:  On not at all...

FILAN:  ... for many, many years, not every crime gets prosecuted.  So please do better than that. 

BLAIR:  Absolutely.

FILAN:  What‘s the harm here? 

BLAIR:  I say I can‘t believe I hear Geoffrey saying that.  However, the harm is, is you‘re talking about students.  You‘re talking about people that they are—that they trust, that they have to obey, that they have  to look up to and look to for the right thing to do.  Even this teacher, who says she didn‘t have sex, she still admits it was an improper relationship.  It‘s the wrong thing to do and in Texas, it‘s criminal and there is no question that having sex with students should be a criminal case. 

FILAN:  And that‘s got to be the last word on that.  Nelda Luce Blair, Geoffrey Fieger, thank you so much for coming on the program, for joining us. 

BLAIR:  Thank you.

FIEGER:  Thanks.

FILAN:  Coming up, police are asking for your help in the search for a 24-year-old woman missing since January.  Her parents are taking to the streets every day trying to find someone who‘s seen their daughter. 

And a lot of you writing in about the Duke lacrosse rape case and why you think D.A. Mike Nifong is sticking with it.

(COMMERCIAL BREAK)

FILAN:  Coming up, a mother and father search for their daughter, missing since she didn‘t turn up for work in January.  Now they need your help finding her.

(COMMERCIAL BREAK)

FILAN:  Back now.  The search for a young woman who vanished in Florida more than six months ago.  Her parents are fighting to keep the case alive.  The first big break in the case is pictures from a surveillance camera.  Nothing remarkable to the untrained eye, but in the search for Jennifer Kesse, it might be an important clue for police and for the parents who won‘t rest until she‘s found. 

“Dateline NBC‘s” Edie Magnus has the story. 

(BEGIN VIDEOTAPE)

EDIE MAGNUS, “DATELINE NBC” (voice-over):  Each morning at rush hour, Joyce and Drew Kesse...

UNIDENTIFIED MALE:  Good morning.

MAGNUS:  ... stand on opposite sides of the road, holding posters of their daughter Jennifer who is missing. 

UNIDENTIFIED FEMALE:  We‘re not going to let Orlando forget that Jennifer is still missing. 

MAGNUS:  Missing since January, the only clue to her fate these grainy photographs and the faceless, nameless person in them. 

UNIDENTIFIED FEMALE:  And remember to pray for the police.  Remember to pray for whoever...

UNIDENTIFIED MALE:  Yes.

UNIDENTIFIED FEMALE:  ... knows something. 

MAGNUS:  When we met them, they had been doing this for 100 days. 

UNIDENTIFIED FEMALE:  Oftentimes, I kind of hide behind the sign and I cry.  Not for me, but for Jenn. 

MAGNUS:  Jennifer Kesse, a beautiful 24-year-old financial analyst with a constant smile.  On Tuesday morning, January 24, when the Kesses got a call their daughter did not show up for work, they tried to call her cell but it immediately went to voice mail. 

VOICE MAIL:  Hey, it‘s Jenn.  I can‘t get to my phone.  Leave me a message and I‘ll give you a call back.  Thanks.

UNIDENTIFIED FEMALE:  It‘s that not Jennifer.  This Jennifer has always been reachable.  My—when I got that phone call, I knew intuitively something happened to her. 

MAGNUS:  The Kesses raced from their home three hours away to Jennifer‘s condo.  They arranged her things to show us the way they said they found them that day.  A wet shower, damp towel, underwear on the floor, hair and makeup on the bathroom sink.  On her unmade bed, a selection of work clothes laid out. 

UNIDENTIFIED FEMALE:  We feel that she got ready to go to work.  She left. She locked her door and at that point is where the mystery starts.

MAGNUS:  But police say the mystery may have started even earlier. 

UNIDENTIFIED MALE:  It is as close to a vanishing as I‘ve ever seen. 

MAGNUS:  Orlando Police Sergeant Rich Ring says Jennifer called her boyfriend in Fort Lauderdale at 10:00 p.m. January 23, the night before she was reported missing. 

UNIDENTIFIED MALE:  The trail ended at 10:00 the night that she disappeared. 

MAGNUS (on camera):  And she‘s just off the radar after that? 

UNIDENTIFIED MALE:  Yes, she is.

MAGNUS (voice-over):  Did she get in her car and go out after that phone call?  Doubtful her parents say, but police say it‘s possible.  A friend of her brother‘s from out of town had left his cell phone at her condo and asked that she ship it to him. 

UNIDENTIFIED MALE:  We believe that there is a possibility that she may have been out trying to find this—find some type of means to ship this telephone to her brother‘s friend.

MAGNUS:  All of which leaves a huge chunk of time during which Jennifer may have gone missing.  Her boyfriend and family were immediately ruled out as suspects and police quickly focused on the many day laborers who were working at her condominium.  Jennifer‘s family said she had been uneasy about that, but no suspect emerged. 

(on camera):  The first big break in the case came two days after Jennifer disappeared.  Her black Chevy Malibu was found in this parking lot just about a mile from her condominium.  A resident of these apartment buildings had seen the news reports and contacted police.  And when investigators arrived, they got an even bigger break.  On top of the pool house behind me, there were security cameras and they were rolling. 

UNIDENTIFIED MALE:  We‘ve actually captured a time when the car was dropped off at this particular apartment complex. 

MAGNUS (voice-over):  Dropped off by someone other than Jennifer Kesse.  Police haven‘t said who, nor released that particular footage, but they have released something else.  Three frames of video of someone walking in the parking lot near Jennifer‘s car at around the same time it was dumped, but the big break also turned into a huge frustration for police. 

UNIDENTIFIED MALE:  We immediately saw that there were some things that worked against us, the environment that the person was walking in, there were some posts that obstruct our view, our clear view of the person‘s face. 

MAGNUS:  The person without a face is, for police, a person of interest.  But despite enhancements to the photo by the FBI, police can‘t say for sure if it‘s a man or a woman.  All they know is his or her height between five-three and five-foot-five-inches tall. 

(on camera):  Do you find yourself staring at that photo?

UNIDENTIFIED MALE:  Actually I have it up right above my computer and I stare at it every day.  I stare at that more than any other thing.

MAGNUS (voice-over):  Police won‘t reveal what they found in Jennifer‘s car, but say there were no signs violence.  Her purse and her cell phone were missing, but there have been no hits on her ATM card or calls from her cell phone ever since.  Police searched the area with hounds, helicopters and horses, still nothing.

UNIDENTIFIED MALE:  Well if you see anybody that—or anything, be sure and call us, OK.

MAGNUS:  The Kesses, meanwhile, organized volunteers to pass out more than a million homemade flyers.  They spoke at churches and went on local and national TV. 

UNIDENTIFIED MALE:  Give a call to the hot line.

UNIDENTIFIED FEMALE:  (UNINTELLIGIBLE)

MAGNUS:  But despite generating hundreds of leads, and with a reward of $250,000...

UNIDENTIFIED FEMALE:  What was your tip in reference to?

MAGNUS:  The ultimate tip still has not come through. 

(on camera):  One of your theories is that she may have been taken by somebody who had been watching her, stalking her if you will. 

UNIDENTIFIED MALE:  It wasn‘t for a carjacking because they left the car.  It wasn‘t for robbery because nothing was taken.  It comes down to that someone wanted her.

UNIDENTIFIED FEMALE:  I mean what else is there? 

MAGNUS (voice-over):  The Kesses say they think often of Elizabeth Smart, the Utah girl who was abducted and returned home safely after nine months of captivity.  She is the poster child for their dreams. 

UNIDENTIFIED FEMALE:  Actually repeating Elizabeth Smart‘s name many, many, many times helps me as well.

UNIDENTIFIED FEMALE:  Well I thank you so much for praying for Jennifer. 

UNIDENTIFIED FEMALE:  OK.

MAGNUS:  They‘re bolstered by the hugs on the street, hundreds of waves from passing motorists, and the fact that Jennifer has not been forgotten. 

UNIDENTIFIED FEMALE:  Never give up. 

UNIDENTIFIED FEMALE:  I won‘t.  Thank you.

UNIDENTIFIED FEMALE:  We never ever in a million years expected the turnout and the outpouring love and support from people we don‘t know.

MAGNUS:  And this day, like every other one since their daughter vanished, the Kesses were back on the street for another 90 minutes at the afternoon rush hour, holding her face to the world, relentless but they say not hopeless. 

UNIDENTIFIED FEMALE:  We continue to believe that she is out there being held captive.  Until you can prove to us otherwise, we will continue to believe, we will continue to have hope that we will have a very joyous reunion. 

(END VIDEOTAPE)

FILAN:  That was “Dateline‘s” Edie Magnus.  Jennifer‘s parents hope that any police leads will bring her back home.  So if you‘ve got any information, please call 1-800-423-TIPS or visit her Web site at findjenniferkesse.com.

Coming up, a lot of you writing in about “Dateline NBC‘s” hidden camera series “To Catch A Predator”.  Many of you are unhappy with it.  Your e-mails are next. 

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

Authorities need your help finding Gary Johnson.  He‘s 47 years old, five-foot-seven and weighs 160 pounds.  He was convicted of first-degree child molestation and has not registered his address with the state.

If you‘ve got any information on his whereabouts, please contact the Mason County Sheriff‘s Office at 360-427-9670.  We‘ll be right back.

(COMMERCIAL BREAK)

FILAN:  Time now for “Your Rebuttal”.  A lot of you are still writing in about the Duke lacrosse rape case.  On Friday, Dan covered new information about the alleged victim released by the defense. 

Limmie Pulliam from Missouri says “You keep covering the information that the defense is releasing to the public, but you also have to question what they are not releasing.  You have fallen into exactly what the defense wants, they are going to release everything in their favor and by doing so possibly taint the jury pool.”  Limmie, you‘ve been listening to me.  That‘s right. 

And James Fawcett from New York City writes, “I think it‘s pretty

obvious that Nifong moved ahead with the case in hopes of securing the

votes of both minorities and women in May‘s election.  Now that he‘s won

re-election, he can‘t possibly put the brakes on.  Doing so would expose

what amounts to a tawdry political move.”  Boy, I hope you‘re wrong about that.

And Rita writes, “I feel 100 percent as you do.  This case has got me so upset that I have started smoking.”

Also on Friday, Dan talked with “Dateline NBC‘s” Chris Hansen about their series called “To Catch A Predator”.  Many of you writing in with mixed feelings.

D. from Connecticut writes, “I find the techniques on this television sensationalism to be entrapment.  Catching perverts is admirable, but setting up the men with a whole scenario played out online by a very able cop, baiting the potential perv to come to the house, to be ethically questionable.”

And Mike Ward from Alabama writes, “This show should be a new weekly series for NBC.  I want them to do so many sting operations around the country that it scares every pervert watching and makes them think twice before trying to meet these kids.”

And coming up, Dan‘s big announcement.  You‘ve got to hear this. 

You‘ve got to come back for this.  That‘s coming up next.

(COMMERCIAL BREAK)

FILAN:  A big announcement here today.  Dan has been named the new general manager of MSNBC.  It‘s a huge promotion for him, a whole new direction for his career.  It‘s great for us.  He‘ll be here tomorrow to tell us all about it.  Stick with us.  Dan, congratulations.

Well that does it for us.  Coming up next, “HARDBALL” with Chris Matthews.  See you tomorrow.

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

END   

Copy: Content and programming copyright 2006 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2006 Voxant, Inc. ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and Voxant, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

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