updated 6/15/2006 11:28:03 AM ET 2006-06-15T15:28:03

Guests: Steve Farese, Leslie Ballin, Pam Killingsworth, David Rabin, Michelle Suskauer, Ben Winslow, Flora Jessop, Clint Van Zandt, Henry Lee, Bill Frankmore, Lewis Cheek, Jonna Spilbor, Yale Galanter, Norman Early

SUSAN FILAN, GUEST HOST:  Coming up, the woman authorities say confessed to killing her preacher husband pleads not guilty in court.  And her lawyers want her to get out on bail.  They join us live. 

The program about justice starts now.  

The scene in a Tennessee court as a preacher‘s wife pleads not guilty to killing her husband, as her lawyers ask the judge to let her out on bail. 

Hi everyone.  I‘m Susan Filan, in for Dan. 

First up on the docket, the murder case against Mary Winkler, the mother of three charged with gunning down her husband Matthew, shot in the back at close range with a shotgun.  According to court documents, Winkler confessed to killing Matthew when she was captured by police in Alabama with her three daughters, the very next day.  Even so, her lawyers are trying to get her out of jail while she waits for her trial. 

Joining me now are Mary Winkler‘s attorneys Steve Farese and Leslie Ballin. 

Thanks for joining us. 

UNIDENTIFIED MALE:  Thank you. 

FILAN:  So you‘re trying to get your client out on bail? 

STEVE FARESE, ATTORNEY FOR MARY WINKLER:  That‘s correct.  We filed a motion for bail; this is our first motion requesting bond on her behalf.  And we feel like that she‘s not a danger to her self, she‘s not a danger to the community, and she should be released on bond. 

FILAN:  What about flight risk?  I mean this is somebody who tried to escape from day one after she allegedly committed the crime. 

FARESE:  Well, that‘s a characterization of her actions as far as trying to escape...

FILAN:  OK, she ran away with her three kids after she killed her husband. 

How would you characterize it?

FARESE:  Well, when you say ran away, I think I may know more facts about this than you do. 

FILAN:  Fill us in. 

FARESE:  Well, I can‘t fill you in and you know I can‘t fill you in, but just because one speculates or just because one says something doesn‘t make it so. 

FILAN:  Yes.  But she didn‘t exactly stick around and turn herself in. 

FARESE:  That‘s correct. 

FILAN:  So I think it‘s fair to—I think the prosecutor is certainly within his rights to raise flight risk to the court when you make this motion. 

FARESE:  I think the prosecutors can do that, but I think it can be rebutted by facts.

FILAN:  All right.  I‘d like to hear it but you‘re not going to tell us.  Let me ask you this.

FARESE:  That‘s correct.  Right.

FILAN:  You say that you‘ve got a safe place for her to go.  Are you trying to get her out on straight bail or are you trying to get her released to some kind of a psychiatric facility? 

LESLIE BALLIN, ATTORNEY FOR MARY WINKLER:  It would be when you say straight bail, a bond set, satisfied by sufficient securities, a bail bonding company.  And she would live in the community and hopefully work in the community.  One of the things that I want to share with you, if I might, and change subjects a little bit, is that when Steve and I saw her this morning, she was clutching two letters, letters from her daughters. 

The first contact that she‘s had from her children and this was the most important thing in the world to her.  We think that speaks to her not being a flight risk.  The kids are with the paternal grandparents.  She doesn‘t want to leave those kids.  She‘s going to stay in the community.  She‘s going to come back to court. 

FILAN:  When you say she‘s clutching letters, did the kids give the letters through counsel to you today or did they get them—did she get them in the prison from the children? 

BALLIN:  She got them in the mail.  She receives many letters from varying people across the country, and these are two bits of mail that she was just recently given in the jail, mailed on behalf of the children.  The kids are ages 6 and 8.  I doubt that they put the letters in the mail themselves.  They were letters written by the kids.

FILAN:  Why was she clutching them in court today? 

BALLIN:  It was in the jail area where Steve and I saw her.  She was clutching them as if they were the most prized possessions that she owned.  That‘s how important they are to her. 

FILAN:  Or one could argue it might be for show or for sympathy.  Let me ask you...

UNIDENTIFIED MALE:  Oh, come on...

(CROSSTALK)

UNIDENTIFIED MALE:  No, no...

(CROSSTALK)

INGRAM:  Come on.

BALLIN:  Showing sympathy to her lawyers in a private jail meeting? 

There were no cameras.  There was no one else...

FILAN:  You said she was clutching them in court. 

BALLIN:  No, no, no, no, I said in the jail area when Steve and I saw her prior to court. 

FILAN:  Let me ask you this.

BALLIN:  Sure.

FILAN:  Don‘t you think that your bond argument could in effect cut against you if you do successfully get a release to the community?  She‘s able to function in the community.  Isn‘t that going to cut against what I think you‘re going to try to do, which is a psychiatric defense, an insanity defense, a mental disease or defect defense. 

FARESE:  No.  One of the first things we did is because of her appearance to us, how she answered questions to us.  We wanted to have a psychological evaluation done privately to make sure she was not a threat to herself or anyone else.  Day-by-day she‘s gotten better.  She‘s gone through several counseling sessions.  We will have proof of that at the proper time.  And we don‘t think it will cut against us.  We‘re not here saying that we‘re going to have an insanity defense.

FILAN:  Are you going for battered woman defense? 

FARESE:  We‘re going for what is available to us under the facts. 

BALLIN:  Now, Susan, under Tennessee law, I think it‘s Rule 12 of the Rules of Criminal Procedure, if we are going to have a mental defense, we must give notice of it in writing prior to trial, identifying experts, giving the state the opportunity to either talk to that expert or to obtain other opinions on the subject.  All of these avenues are still open to us and we‘re going for it.  We don‘t see asking for bail as inconsistent with our ultimate defense.

FILAN:  Well I wonder about that.  You guys are playing it awfully close to the chest.  It‘s a real tease.  We‘ve got on the phone with us now a friend of Mary Winkler‘s.  Her name is Pam Killingsworth.  She was in court today and she recently visited with Mary Winkler in jail.  Pam, thanks very much for joining us.

PAM KILLINGSWORTH, WINKLER FAMILY FRIEND (via phone):  You‘re welcome. 

FILAN:  How did Mary seem to you when you saw her in court today compared to the other times you‘ve seen her? 

KILLINGSWORTH:  She seemed fine.  She seemed a little sadder, her head down.  Her demeanor was a little quieter.  But she—every time I visit her, she has been in really good spirits and talks about the girls and how she hopes to see them soon.

FILAN:  When you say really good spirits, her lawyers have described her as somebody who is very reluctant to talk at first, somebody who may either have mental problems or, you know, is going to disclose through her defense some deep dark secret of what went on behind closed doors in that marriage, yet you describe her in good spirits.  That seems inconsistent to me, not that I‘m doubting you, but could you put that in perspective for me? 

KILLINGSWORTH:  Well, when she and I talk, it‘s just as friend to friend, and I was just there to be close to her and let her know that I‘m thinking about her and I‘m praying for her, and I hope things go well for her. 

FILAN:  Do you know why she did it, Pam? 

KILLINGSWORTH:  No, ma‘am.  No, ma‘am.  We don‘t discuss that. 

FILAN:  Yes.  Does she seem remorseful? 

KILLINGSWORTH:  She—well, like I said, we just don‘t discuss that.  Basically, we just talk about how she‘s doing and I tell her things going on in the community.  She also sends—she gets a church bulletin and she sends people cards and sends out little letters to people, you know, telling them that she‘s thinking about them and if they‘re sick, she‘ll send them a get well card...

FILAN:  Right.

KILLINGSWORTH:  ... to get better. 

FILAN:  So she‘s trying to keep busy I guess.  All right, well, the question—Pam, thanks very much for joining us.  The question remains, will and should the judge set bail for Mary Winkler in this case.  Joining me now to discuss this is former Tennessee prosecutor David Rabin, criminal defense attorney Michelle Suskauer.  Thanks for coming on the program.

UNIDENTIFIED MALE:  Thank you.

UNIDENTIFIED FEMALE:  Sure.

FILAN:  David, let me start with you.  What do you think about bail for Mary Winkler in this case?  I mean obviously what the court is going to have to consider is the seriousness of the offense and whether she‘s a flight risk.  She‘s confessed.  It‘s murder—it‘s allegedly murder.  It‘s a long gun at close range, one shot in the back.  What do you think? 

DAVID RABIN, FORMER TENNESSEE PROSECUTOR:  Under Tennessee law the state is not asking for the death penalty.  She is entitled to bail as a matter of law.  The question is, is how much and what kind of conditions the judge will put on this.  As I‘ve been watching this on TV, you‘ve been seeing her in court and in jail, that‘s a very unnatural environment and you really don‘t see the person in their true light. 

When she was living at home with her husband that may have been an unnatural environment.  There may have been some things going on there.  She may have been—might have been psychologically battered and the like and if she was in on bail, under supervision, the circumstances might be different.  You have various factors here.  She left the scene with her children. 

And that is an element of flight.  That would count against her.  The fact that there is a homicide certainly is a relevant consideration.  I‘ve had clients however that have killed people in situations sort of like that and bail was set at 20,000 or $30,000 because it was not the notoriety of this case. 

FILAN:  David, bottom line, should she—should there be a bail set in this case?

RABIN:  Yes, I think a bail should be set, but I think the Tennessee judge will impose conditions on her. 

FILAN:  All right.  Michelle, what do you think? 

MICHELLE SUSKAUER, CRIMINAL DEFENSE ATTORNEY:  Well, I think that she should definitely be entitled to bail in this case, because you have to look at her mental situation.  I know Susan, you‘re concerned about the fact that she fled with her children and obviously the judge needs to consider risk of flight and also safety to the community.  So you have to look at her mental condition at the time of the incident, which I‘m sure that her defense lawyers are going to bring in, and her ties to the community.

This is obviously her first brush with the criminal justice system.  This is someone who has a lot of attachments.  She has children, and if the judge can set some standards of bond, which would really protect her and protect the community, she certainly should be entitled to get out, certainly mental health counseling.  Maybe he wants to put her on some sort of a monitor, so that she could check in or that some sort of house arrest, but she should get bond in this case. 

FILAN:  It just seems to me that you know since her lawyers are playing it so close to the vest, we don‘t know what her mental condition was, we don‘t know what defenses is that she‘s raising, and if you take it just as a straight homicide case with the facts as they‘re alleged, that they shot him point-blank in the back with a long gun and took off, I‘m just not sure this is one of those bailable offenses.  I know her lawyers are still with us.  Steve, Leslie, do you want to speak to that?

BALLIN:  Yes, in Tennessee I think David spoke to the fact...

FILAN:  Yes, I know the law says you can get it.  Should a judge grant it...

BALLIN:  You‘re entitled to it.

FILAN:  It‘s a completely different—entitled...

BALLIN:  Unless, unless...

FILAN:  It‘s a discretionary call, guys.  You know that...

BALLIN:  No, no, no, absolutely not, Susan.  Unless it‘s a capital case, you are entitled to bail.  In this particular situation...

FILAN:  OK.  All right, here‘s where we may be mincing words here.  She may be entitled to bail, but he could set it at a gazillion million.  I mean she may be technically entitled to some number attached to her name, but it‘s going to be so high that she wouldn‘t ever be able to make it.  What I‘m talking about is should a bail that she could make be set, you know, short of $10 million? 

FARESE:  Certainly, a reasonable bond should be set and if they set it at ten gazillion -- $10 gazillion, then certainly that‘s not a reasonable bond.  We think that all the facts and circumstances surrounding this case and her life prior to this act will allow her to get a reasonable bond and that‘s what we‘re shooting for. 

FILAN:  See, I think this goes more if she‘s found guilty to sentencing.  I mean bond is not to punish.  It‘s not suppose to be punitive.  It‘s supposed to ensure that you show up at trial, but I‘ve got to say, it‘s four against one here.  I don‘t agree with any of my guests today.  I don‘t think this is a case in which bail should be set. 

(CROSSTALK)

FILAN:  I know what you‘re saying...

(CROSSTALK)

FILAN:  ... the law requires it, but I don‘t think it should be a bail that she could make.  I‘ve got to wrap.  David Rabin, Michelle Suskauer, Steve Farese, Leslie Ballin, I guess you guys don‘t want me to be a juror and you don‘t want me to be the judge either. 

FARESE:  We‘ll use a strike on you, Susan.

FILAN:  All right.  Coming up...

(CROSSTALK)

UNIDENTIFIED MALE:  Thank you.

FILAN:  ... he‘s been on the FBI‘s most wanted list for a month and a half, but they still haven‘t caught him and now polygamous sect leader Warren Jeffs has reportedly been spotted performing underage weddings again.  We talk with a former member of his sect next.

And the manhunt for a husband accused of killing his wife and suspected of shooting a judge gets to California where police say he contacted one of his relatives and used a credit card. 

Plus, a Durham official now considering jumping into the race at the last minute to try to defeat D.A. Mike Nifong because of the way he‘s handled the Duke lacrosse rape case.  We‘ll talk to him.

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

(COMMERCIAL BREAK)

FILAN:  He‘s now spent 40 days on the FBI‘s most wanted list, so why is law enforcement having such a tough time catching fugitive polygamist sect leader Warren Jeffs?  He‘s called the prophet of a Mormon splinter group, the Fundamentalist Church of Jesus Christ of Latter Day Saints.  And he‘s wanted for sexual conduct with a minor, conspiracy to commit sexual conduct with a minor, unlawful flight to avoid prosecution and rape as an accomplice.  Most of those charges are connected to Jeffs‘ alleged role as a church leader marrying underage girls to older men. 

Now Arizona Attorney General Terry Goddard says he believes that Jeffs has gone back to his church‘s community at Colorado City, Arizona, and he‘s performing marriages there.  Ben Winslow is a staff writer with the “Deseret Morning News” and he‘s been covering this story.  Thanks for joining us.

BEN WINSLOW, “DESERET MORNING NEWS”:  Thank you for having me.

FILAN:  Now what is it that the A.G. says that Jeffs is up to? 

WINSLOW:  Well, he says that he‘s been in the area recently and performing more marriages, at least that‘s what the Arizona attorney general says he‘s been told by several reliable sources that he has.  I‘ve heard similar things from people within those communities, as well as from other law enforcement that they‘re definitely checking out these reports that he‘s been in the area fairly recently and has been up to—performing more marriages. 

FILAN:  We‘ve got a quote from Terry Goddard.  This is what he says. 

He says there is no firm evidence, but there are quite a few anecdotes that he has been there.  There is no eyewitness evidence.  Nothing solid.  Nothing that specific, just a feeling that he‘s still performing marriages and had been in the vicinity.  Why is it so hard to catch him then?

WINSLOW:  He is very mobile.  Warren Jeffs moves around constantly.  The fundamentalist LDS Church has enclaves scattered across the country and in Canada it is very difficult from I‘ve been told because he‘s—he is believed to be very much on the move, traveling in a convoy or traveling with escorts, and just moving from one safe house to the next safe house. 

FILAN:  Sounds like he‘s got money. 

WINSLOW:  He‘s got a lot money.  There‘s thousands of followers of Warren Jeffs and they have been giving him money to keep him on the run.  Warren Jeffs‘ own brother was arrested in Colorado with money in transit.  More than $100,000 in cash, even a jar with Warren Jeffs‘ wanted picture on it and it said pennies for the prophet, so there‘s a lot of money going to keep him on the run. 

FILAN:  I guess the question becomes then, are these people really followers of his or are they brainwashed in a cult and I guess our next guest can speak to that.  Ben Winslow, thanks for coming on the program. 

WINSLOW:  My pleasure.

FILAN:  We‘ve got Flora Jessop.  She‘s a former member of Jeffs‘ Fundamentalist Latter Day Saints Church and she was raised in Colorado City.  She escaped from the FDLS and she now helps other young women escape from sects as well.  Flora, thanks for coming on the program. 

FLORA JESSOP, ESCAPED FROM POLYGAMOUS SECT:  Thank you for having me. 

FILAN:  If Jeffs is in Colorado City, is anybody there going to help law enforcement catch him?  Is anybody there going to turn him in? 

JESSOP:  No. 

FILAN:  Why?

JESSOP:  Think of it as—it‘s the same thing as why won‘t the terrorists turn in bin Laden?  They believe that he is speaking for God, and as a result, to go against Warren Jeffs is to go against God‘s teachings. 

FILAN:  Even though what he‘s doing is criminal and they know it and they know he is wanted. 

JESSOP:  They believe that it is part of the persecution that God has put upon his people to test their strength in his belief.

FILAN:  Don‘t these underage marriages—I mean aren‘t the girls against it?  Don‘t—do they want it themselves or—I mean, you got out.  You didn‘t want it.  It‘s hard for me to understand. 

JESSOP:  That‘s the only thing these girls know.  One of the things we deal with, with the girls that do come out is their guilt, because they aren‘t having babies.  These girls are taught from the cradle that they are murderers if they don‘t have a child as soon as their body is ready to start giving birth.  In essence, when they start their menstrual period.  It is required at that point to start having children, and it‘s difficult to overcome those teachings. 

FILAN:  What‘s the age difference generally between these child brides and their husbands, I guess? 

JESSOP:  There‘s been children very young that have married men old enough to be their grandfathers.  It‘s routine to marry someone as old as your father.  It‘s very common.  To them...

FILAN:  How did you get out? 

JESSOP:  Ran like crazy. 

FILAN:  And how are you doing now? 

JESSOP:  I‘m doing good.  I want to give the children that want out the—an opportunity that I didn‘t have and that is someone to turn to. 

FILAN:  Right.  Right.  Right.  Do you think law enforcement is going to catch him? 

JESSOP:  I think that if they are going to catch him, they need to listen to people who know what this group is like.  There‘s, you know, law enforcement has dealt with many different type of gang and criminal organizations, but they‘ve never really had to deal with one that‘s on the level of this group.  This is the American terrorist. 

FILAN:  Well, Flora...

JESSOP:  And...

FILAN:  ... thanks so much for joining us.  Thanks very much for coming on the program.  I hope you‘re going to have the life that you deserve. 

JESSOP:  Thank you. 

FILAN:  Clint Van Zandt joins us.  He‘s an MSNBC legal analyst and a former FBI profiler.  Clint, it‘s hard for me to get this.  I mean...

CLINT VAN ZANDT, FORMER FBI PROFILER:  Yes, yes, you and me both. 

FILAN:  OK.  What‘s law enforcement going to do to catch this guy?  I mean if he—if this is a cult, people aren‘t going to help, they‘re not going to turn him in.

VAN ZANDT:  Yes.

FILAN:  There‘s a lot of secrecy, power, authority, money, fear, how are they going to get him? 

VAN ZANDT:  Well you know you‘re dealing with a whacko, Susan.  You know when you‘ve got someone who says that a 14-year-old has to start putting out babies like a Pez dispenser, that that‘s her obligation to God, I mean he‘s a few bricks short of a load to begin with.  But you know I dealt with the same type of individual when I was at Waco in negotiating with David Koresh and trying to punch through the followers.

We had almost 900 conversations with the Branch Davidians trying to say hey, let‘s resolve this and to a man, to a woman, to a child, they had sworn their loyalty, their allegiance to a David Koresh type of individual and here we have this man who sets himself up to be a prophet, who‘s traveling with bodyguards, in an entourage, moving from house to house to house and even though there‘s a $100,000 reward on his forehead, the followers have to say hey, if I turn him in, I‘m violating one of God‘s very best, so you know you can understand their reluctance and this level of brainwashing that they appear to have undergone.

FILAN:  But Clint, he‘s not invisible.  I mean when he walks out of a house, if you...

VAN ZANDT:  Yes.

FILAN:  ... had the place surrounded with long lenses and you know—law enforcement is going to be able to see him with the naked eye.  If he‘s in a car and they‘re doing some kind of a stop of every car, they‘re going to be able to see him.  He‘s not invisible.  What is taking so long to catch this guy? 

VAN ZANDT:  OK, let‘s do a couple of things.  Number one, he‘s on the FBI‘s top 10 most wanted.  The reason—so is Osama bin laden.  The reason to put some guy like this on the top 10 most wanted is because you feel the publicity.  You get his photo out to the public that people will see him, and that they will want to help, they‘ll do something about it. 

The average person spends 318 days on the top 10 of before he or she is apprehended.  In this particular case, again, let me go back to my Waco analogy, the last thing the FBI or any law enforcement agency wants is another contained situation where you have men, women, and little children in a house, they take up arms, and they say, we are not going to surrender our leader and we‘d rather die first. 

You know God knows the FBI has learned from that standoff situation, and neither they nor the marshals nor the locals want to be involved, so the challenge is finding this guy, number one.  And then finding him out in some type of a public setting where you can take him without having to confront many other innocents who may be around him. 

FILAN:  Well, I just can‘t stop thinking about these little girls getting married to old men. 

VAN ZANDT:  Fourteen years old and they tell you have to start having babies or you‘re not doing what God tells you to do.  They read a different book than I do.

FILAN:  Wow.  Clint Van Zandt, boy you‘re really helping us out.  Stick around.  We‘re going to need you again. 

VAN ZANDT:  Thanks, Susan.

FILAN:  Coming up, breaking news in the manhunt for a Nevada man suspected of killing his wife and shooting the judge handling their divorce.  The search shifts to California where police believe he used his credit card and contacted his cousin. 

And a Duke professor calling for a special prosecutor to take over the Duke lacrosse rape case, because he says the D.A. screwed it up. 

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.  Authorities need your help locating Brian Babb. 

He‘s 52, five-eight, weighs 150 pounds.  He was convicted of exposing himself in public and second-degree sexual assault.  He hasn‘t registered his address with the state.  If you‘ve got any information on his whereabouts, please call the Clark County Sheriff‘s Office at 360-397-2397.  We‘ll be right back.

(COMMERCIAL BREAK)

(NEWS BREAK)

FILAN:  Breaking news in the case of a Reno pawnshop owner accused of murdering his wife and suspected of then shooting the judge who is presiding over their divorce.  We just learned police in Moraga, California got a call from a relative of the suspect, who apparently spoke with Darren Mack after the courthouse shooting and he wants to help Mack surrender. 

(BEGIN VIDEO CLIP)

SGT. ROBERT PRIEBE, MORAGA POLICE DEPT.:  The Moraga Police Department was contacted by a relative of the Reno P.D. homicide suspect Darren Mack.  The relative, Jeff Donner, is a resident of Moraga, was immediately put in contact with Reno P.D. detectives.  Mr. Donner is asking all media to let Mack know that he will assist Mack in a peaceful surrender to law enforcement.  There was telephone contact from Mack to Mr. Donner after the reported time of the shooting of the judge in Reno.  Mr. Donner was unaware of any criminal activity in Reno until later in the day. 

(END VIDEO CLIP)

FILAN:  Authorities have learned Mack may have been in Sacramento late Monday night or early Tuesday morning.  A credit card linked to his business was used at the airport there.  And we‘re also learning more about how police say Darren Mack killed his estranged wife, Charla, from an eyewitness who was in the house at the time that she may have been murdered.

Joining me now on the phone “San Francisco Chronicle” reporter Henry Lee, who was at the press conference and in Reno, NBC affiliate KRNV-TV anchor Bill Frankmore, former FBI profiler and MSNBC analyst Clint Van Zandt is back with us again. 

Henry, so what did the police have to say today at this press conference? 

HENRY LEE, “SAN FRANCISCO CHRONICLE” (via phone):  Well he said that there‘s no reason to believe that Darren Mack is heading to Moraga in the bay area, however, Jeff Donner, his cousin, is willing to serve as an intermediary in case Mr. Mack wants to surrender, Mr. Donner wants to help him do that in a peaceful manner.  We don‘t have any indication that he is in northern California.  In fact, according to Moraga police, there is no evidence that there has been any confirmed sightings of Darren Mack since the shooting. 

FILAN:  What I couldn‘t figure out though was did the cousin talk to the suspect Mack and then voluntarily call police or did Mack sort of say to the cousin, get in touch with police, help me out, try to negotiate something for me. 

LEE:  Moraga police will not tell us the details of the conversation the two cousins had.  What happened was after Mack talked to his cousin, Reno police called Moraga police and said we want you to go to Mr. Donner‘s (ph) house, don‘t tell Mr. Donner anything, just see if Mack‘s car is there.  They did so and the car wasn‘t there and then Jeff Donner this morning about 9:30 this morning independently contacted Moraga police and gave a statement over the phone to Reno police. 

FILAN:  Bill, let me ask you.  Do you have any more information on what the police are saying as to how they‘re going to find Mack now? 

BILL FRANKMORE, KRNV-TV ANCHOR:  Well, it‘s obviously he could be anywhere.  The credit card receipt or the credit card swiped that was in Sacramento, they‘ve actually been hurt because of the media letting people know or letting people out there know that he did use a credit card or somewhat at least used one of his business credit cards, leaving the Sacramento airport. 

They were hoping to follow a paper trail.  Now they say that lead is gone.  What they are doing right now, apparently Mr. Mack was a member of several online dating sites and police are contacting women that he may have been in contact with, telling them to obviously call them if Mack is to contact them. 

FILAN:  And this credit card swipe, was it at a parking garage, at an airport? 

FRANKMORE:  Apparently it was at a parking garage and it was about 2:30 on Monday afternoon.  I just spoke with a lieutenant, Ron Donnelly, of the Reno Police Department, he tells me that of course the shooting here in Reno with the judge happened about 11:00, and what they believe—they believe Mr. Mack killed his wife first, then he did the sniper style shooting at the courthouse, and then they believe he drove to Sacramento, used his credit card.  Sacramento is about two hours from Reno, so obviously in that time frame he would have been able to do that. 

FILAN:  We‘re going to put up a timeline for our viewers to try to map out the day preceding this sighting of the—the use of the credit card.  11:15 a.m., shots fired at Reno courthouse; Judge Chuck Weller is hit through his office window; 3:00 p.m., Charla Mack is found dead; 4:00 p.m., Darren Mack named homicide suspect and person of interest in judge‘s shooting.  Now we‘re on Tuesday, early morning, credit card belonging to Darren Mack‘s business used at Sacramento airport.  9:00 a.m., warrant filed for Mack‘s arrest for one count of murder with use of a deadly weapon.  Police say more charges are expected.

Clint, why do you think the media attention is supposedly hurting the search for Darren Mack?  I find that hard to believe.

VAN ZANDT:  Well, you know, I find it hard to believe that with as many crime shows as there are on television now, that someone doesn‘t think gee, if I use my credit card, might law enforcement be looking to see how my credit card is being used.  You know I think that‘s unfortunately pretty much common sense, just like DNA evidence is now, but it‘s still—it speaks to he either needs to be using cash, he needs to be using a credit card, and I think it‘s a positive thing that this relative has stood up and said, hey, I will help you. 

I mean as you and I talked on your show yesterday, Susan, this is a man who still has responsibilities.  They have names.  They‘re his three children.  He‘s taken away their mother, don‘t take away the father.  And now he‘s got the hand of safety and security that‘s being extended by a relative, saying OK, you did this in a moment of anger, frustration, rage, whatever we want to call it, but now save the children, and save yourself.

And he‘s got a very good chance to do it.  All he has to do is pick up that phone, call a relative, call the police, and he can move on with his life from this point on. 

FILAN:  You‘re absolutely right.  The allegation against him is he stabbed his wife.  There is supposedly an eyewitness who was in the house at the time.  What‘s done is done.  Don‘t make it worse.  If you‘re listening, if you‘re watching, Darren Mack, or any of your relatives or friends, do the right thing.  Turn yourself in.  Let it end peacefully now.  Henry Lee, Bill Frankmore, Clint Van Zandt, thanks so much for joining us. 

VAN ZANDT:  Thank you, Susan.

UNIDENTIFIED MALE:  You‘re welcome.

FILAN:  And tonight at 10:00 Eastern here on MSNBC, Rita Cosby talks live with the cousin who police say wants to help Darren Mack surrender. 

Coming up, a Durham, North Carolina official considers getting into the race at the last minute to take on D.A. Mike Nifong because of the way he‘s handled the Duke lacrosse rape case.  He joins us next.

(COMMERCIAL BREAK)

FILAN:  Coming up, a Durham official is thinking about getting into the race at the last minute to unseat D.A. Mike Nifong because of the way he‘s handled the Duke lacrosse rape case.  He joins us next.

(COMMERCIAL BREAK)

FILAN:  Durham District Attorney Mike Nifong may have to start worrying about his so far unopposed November election, because Lewis Cheek, the county commissioner is considering running against him.  Nifong won the three-way Democratic primary last month.  No Republicans filed against him to run.  But that could soon change.  Lewis Cheek joins me now.  Hi, Lewis. 

LEWIS CHEEK, DURHAM COUNTY, NC COMMISSIONER:  Hi. 

FILAN:  So are you going to run and if so, how do you do it?  Do you get on the ballot?  Do you go as a write-in?  How does it work? 

CHEEK:  Well it could work either way.  I‘m in the process of making my mind up about whether I‘ll run or not.  I was contacted by a couple of different groups of Durham citizens who are very concerned about this area, last week and I was asked to consider entering the race and running in November. 

FILAN:  Is this all because of the way Nifong has handled the Duke lacrosse rape case? 

CHEEK:  Well, I think the concerns with those people actually started that way, it was the way he handled aspects of the rape case, but it really goes beyond the rape case itself.  It deals with how should a district attorney handle discussing any kind of case, which may be in his office. 

FILAN:  How would you do it differently? 

CHEEK:  Well, I‘ve always believed, I‘ve been practicing law for 30 years, and I‘ve always believed that the correct way to handle discussing a case with someone in the midst of an investigation is to simply say that we believe that the matter is a very serious one, that we‘ll be doing a very complete investigation, gathering all the information we can, and then making the best decision we can make about what should happen. 

FILAN:  So reading between the lines...

(CROSSTALK)

FILAN:  ... it sounds like you‘re saying he blew it because he said way too much.  I want you to take a listen to something else that D.A. Mike Nifong said. 

(BEGIN VIDEO CLIP)

MIKE NIFONG, DURHAM, NC DISTRICT ATTORNEY:  The reason that I took this case is because this case says something about Durham that I‘m not going to let be said.  I am not going to allow Durham‘s view in the mind of the world to be a bunch of lacrosse players from Duke raping a black girl in Durham.

(END VIDEO CLIP)

FILAN:  Well, let me tell you something.  I‘ve been a prosecutor for many, many years and you don‘t bring a case, you don‘t prosecute, you don‘t try a case because of anything like that.  You do it based on evidence.  That sounded political to me.  Is that part of what people‘s problem against Nifong is and that why they might want you to run? 

CHEEK:  Well, I think there‘s been all kinds of speculation about why some statements may have been made, and why some things that could have been said weren‘t said.  I‘m not really interested in speculating about those kinds of things though.  What I‘m interested in is being sure that in my mind, as best I would be able to do it, that the right kinds of things get said and the wrong kinds of things don‘t get said. 

I don‘t believe in determining guilt or innocence in the media at a time when the evidence is not all in, you don‘t know what the real situation is, there‘s a whole lot more to do.  And I think you need to wait until you‘ve gotten all that information and all that evidence before you begin to make judgments.  And even then...

FILAN:  I think you‘re absolutely right.  But let me ask you this.  OK, so maybe he mishandled the media, maybe he didn‘t say enough, maybe he said too much, but you know what, we are way past that now.  Because what we‘ve heard and we‘ve heard it from the defense, motions filed in court, it sounds like this guy may be a runaway train who actually indicted innocent boys. 

CHEEK:  Well, I don‘t really have any comment on that.  I‘ve made it clear to people I‘ve talked to over the past week or so that I‘m not here to criticize Mike Nifong.  I‘ve known Mike Nifong for a long time.  I consider him to be a good lawyer and a good prosecutor, and it‘s not my goal to say that he is a bad person or a bad lawyer. 

The whole purpose in this for me is to try to make sure that the way situations get handled is the proper way to do it.  I‘m not looking at personalities.  I‘m looking at the office of district attorney in Durham County, which is where I live, which is a place I‘m proud of...

FILAN:  Right.

CHEEK:  ... and which is a place that I represent. 

FILAN:  Well, Lewis, all I can say is the prosecutor has an awesome responsibility, a lot of power, and their job more than anything is to do the right thing, and what I‘m reading between the lines and I know you don‘t want to say it, but by you thinking of stepping in, it sounds like perhaps you or people urging you to run don‘t think he‘s doing the right thing.  We‘ve got to end it there.  Lewis Cheek, thanks so much for coming on our program. 

CHEEK:  (UNINTELLIGIBLE) was glad to be on here. 

FILAN:  Coming up, D.A. Nifong may be facing an opponent in November, and if that‘s not enough, now a Duke law professor wants him off the case completely.  So the question is, should a special prosecutor take over the case?  We debate that up 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.  Police are on the lookout for John Hunter.

He‘s 52 years old, five-eight, weighs 155 pounds.  He was convicted of third-degree sexual abuse and he hasn‘t registered his address with the state.  If you have any information on his whereabouts, please call the Clark County Sheriff‘s Office at 360-397-2397.  We‘ll be right back.

(COMMERCIAL BREAK)

FILAN:  We‘re back with more on the Duke lacrosse rape investigation.  A Duke law professor is calling for a special prosecutor to be assigned to the case.  He wants District Attorney Mike Nifong off the case. 

James Coleman, who led Duke‘s investigation into the lacrosse program in the wake of alleged rape, says Durham District Attorney Michael Nifong should ask the attorney general to appoint a special prosecutor for the rape case against three Duke lacrosse players and then remove himself and his office from further involvement.  This is the only way to restore some degree of public confidence in the handling of the case.  Up to now, virtually everything that Nifong has done has undermined public confidence in this case.

Joining me now criminal defense attorney Yale Galanter, former Denver district attorney Norman Early, and criminal defense attorney, Jonna Spilbor.  Jonna, what do you think, time for a special prosecutor?

JONNA SPILBOR, CRIMINAL DEFENSE ATTORNEY:  It‘s a great idea and I think what this professor is trying to say is that somebody needs to take this case out of Nifong‘s hands, perhaps help him extract his foot from his mouth so that the right thing can be done and this case can get dismissed before it ever sees the inside of a trial court. 

FILAN:  So you‘re saying appoint a special prosecutor so that person can dump the case? 

SPILBOR:  Absolutely. 

FILAN:  Yale, is that what you want?  Would you like to see a special prosecutor and get Nifong out of here? 

YALE GALANTER, CRIMINAL DEFENSE ATTORNEY:  Well I‘d certainly like to see the case dropped and I‘d like to—certainly like to see public confidence in the criminal justice system restored.  However, special prosecutors are reserved for real conflict situations.  They‘re not reserved for negligent situations or incompetent situations, which is what we have with Mike Nifong. 

There‘s just nothing in the law that would allow the governor of a state to appoint a special prosecutor because someone has not done their job correctly or is incompetent on a particular case.  That normally goes to conflict issues, so you know as much as I like to bash Mike Nifong, I can‘t call for that to really happen just because there really is no basis in the law for it, Susan. 

FILAN:  Norm, I think that you can appoint a special prosecutor if there is not just a conflict of interest, but the appearance of impropriety, and one could argue that there is the appearance of impropriety in this case, because perhaps it was brought with political motivations and now that the evidence doesn‘t sound like it‘s panning out, he‘s not going to drop it.  Do you think that could be a basis for a special prosecutor? 

NORMAN EARLY, FORMER DENVER DISTRICT ATTORNEY:  You know, a prosecutor should always try to avoid the appearance of impropriety.  If people perceive one that does not mean that a special prosecutor should be appointed.  Let‘s remember that even though Mr. Coleman was on this commission appointed by the university, he knows no more about this case than you know, Yale know, or that I know about this case. 

In his report, they said that they were not able to interview all the witnesses and they also said they didn‘t have time to do the job thoroughly, so this gives him no more reason to call for a special prosecutor than anyone in Durham County.  It seems to me that what‘s happening here is the same old thing, with defense giving snippets of information.  Why doesn‘t one of the defense attorneys, as you requested last week, Susan, give up the entire file and let the public make up their mind about what‘s in the file, rather than distorting the information that‘s in the file, and giving us only those pieces of information that seem to favor the defense.  Give it all up, and let people make up their own mind about whether this case has any merit or not. 

FILAN:  Well you and I are on the same page with that.  I want my panel to take a listen to a bite of sound from D.A. Mike Nifong. 

(BEGIN VIDEO CLIP)

NIFONG:  The defense attorneys would probably prefer to try the case to get somebody who is less experienced than I am or get somebody who is less committed to the case than I am, and you can certainly understand that.  I mean if I were one of those attorneys, I wouldn‘t really want to try a case against me either. 

(END VIDEO CLIP)

FILAN:  Jonna, you know you can‘t judge shop and you can‘t prosecutor shop.  Isn‘t calling for a special prosecutor now a way of saying either get Nifong out of here because he‘s lost his marbles and he‘s not impartial and he won‘t drop it and he should, or this is a guy so focused, so committed, so tenacious in a courtroom, people want him off so that they can get their clients acquitted?  It‘s an (UNINTELLIGIBLE) around the prosecutor.

SPILBOR:  Door number one, not door number two, Susan, this is not about Nifong being outlawyered or outlawyering anybody else.  This is about a pile of evidence that stinks for him and that points directly to three guys who have probably been falsely accused. 

FILAN:  Probably.

SPILBOR:  We don‘t need a jury to tell us that though.  We have—evidence isn‘t evidence just because it‘s in the courtroom.  We have evidence now that tends to show that this woman was not raped by these three guys.  Why do we need a tax-sucking trial and to call 12 people to decide that for us?

FILAN:  Because it‘s her credibility, that‘s what a jury is supposed to decide.  And Norm hit the nail on the head.  We don‘t know what‘s in his file and the defense...

(CROSSTALK)

FILAN:  ... hasn‘t been forthcoming. 

SPILBOR:  It‘s been filed in motions.  That‘s public information.  The defense has been more forthcoming than the D.A.  The D.A. hasn‘t opened his mouth since he put his foot in it way back when, so I think we do have enough evidence to dismiss this case now.

FILAN:  Yale...

EARLY:  There is no evidence.

FILAN:  ... one quick second.  Why isn‘t this prosecutor shopping?

GALANTER:  Well, it would be prosecutor shopping.  I mean that statement that you just played, Susan, is one of the most pompous and arrogant things I‘ve ever heard on television.  So you know the whole idea of this special prosecutor, if there was a real conflict or there was real misconduct...

FILAN:  Yes.

GALANTER:  ... on the part of Mike Nifong, then yes, and there may be.  I mean remember...

FILAN:  Yes.

GALANTER:  ... he didn‘t disclose to the judge when he went for these warrants...

FILAN:  I got to wrap...

GALANTER:  ... everything he had in his court file, so the misconduct issue may actually get him...

FILAN:  I got to wrap.  Thanks guys.  Yale Galanter, Norm Early, Jonna Spilbor, thanks so much for joining us. 

EARLY:  Thank you, Susan.

GALANTER:  Thanks, Susan.

FILAN:  Coming up, Dan‘s fans really miss him.  Your e-mails are next. 

(COMMERCIAL BREAK)

FILAN:  Now it‘s time for “Your Rebuttal”.  Your e-mails keep pouring in with best wishes for Dan in his new job. 

Jill Kaderly from Austin, Texas, “Congratulations on the career move.  I always knew you were a star.  But who will be my new TV boyfriend?”

Brenda Moore from Lagrange, Georgia, “In life there are people who are alcoholics, drug addicts, et cetera.  I‘m a Dan alcoholic.  Every day from 4:00 to 5:00 I tell my children and grandchildren not to bother me, not to call me, don‘t come by because I‘m watching Dan.  Now I fear I‘ll have to go to the doctor to get me on some kind of medication to come down off my high of you.  I fear my nerves will be wrecked if I can‘t hear you argue your point of view.  You will be missed and I wish you the best.”

Send your e-mails to the abramsreport—one word -- @msnbc.com.  We go through them and read them at the end of the show.

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

END       

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