updated 6/19/2006 12:03:39 PM ET 2006-06-19T16:03:39

Guests: John Burris, Yale Galanter, Mark Edwards, Maureen Seaberg, Leslie Crocker Snyder, Gary Casimir, Richard Young, Jim Denton, Tracy Rizzo, Alan Toback, Amy Dean

SUSAN FILAN, GUEST HOST:  Coming up, more bad news for the D.A. in the Duke lacrosse rape investigation.  A member of Nifong‘s own camp turns against him and more defense filings that don‘t look good for the D.A.

The program about justice starts now. 

Hi everyone.  I‘m Susan Filan.  Dan will be here later in the program. 

First up on the docket, the tides are turning against the district Durham attorney.  Mike Nifong‘s campaign manager is now helping mount the campaign against him.  Jackie Brown, Nifong‘s campaign coordinator, now working for the man who‘s considering running against Nifong, and all this as recently filed defense motions suggest that Nifong may have been less than truthful in some of his first interviews after an exotic dancer accused Duke lacrosse players of raping her at a team party. 

Attorneys for David Evans suggests that on March 29, Nifong claimed to have read the accuser‘s medical report, but that report wasn‘t printed until March 30.  And it wasn‘t even picked up until April 5.  Joining me now, North Carolina criminal defense attorney Mark Edwards and former Alameda County, California prosecutor, John Burris.  Thanks for joining us.

UNIDENTIFIED MALE:  Thank you.

UNIDENTIFIED MALE:  Thank you.

FILAN:  John, how could it be that a prosecutor makes a statement about something that he‘s read in a medical report, that it looks like he didn‘t have access to at the time he made that statement? 

JOHN BURRIS, FORMER PROSECUTOR:  Well, it could be a mistake just in terms of the date, but on the other hand, he may well have been that he had a conversation with someone about it the day before that gave him indications of what was in the medical record, or he himself could have gone over there and seen some sketches of it.  I have to believe that as a D.A. that he did not intentionally make a representation of having seen something when in fact he had not seen it...

FILAN:  Why do you have to believe that, John?  Why? 

BURRIS:  Because he‘s an officer of the court, and this is a high profile case, his reputation is such that you know having been a prosecutor myself and been around a lot of prosecutors, they don‘t necessarily make statements that are a lie right up front, there‘s nothing to gain by it, it seems to me, so I‘m going to give him the benefit of the doubt that it was either an innocent mistake or he had access to something early that allowed him to make that statement.  Doesn‘t have to be...

FILAN:  Well let‘s see if the benefit of the doubt is warranted here.  Take a look at this.  One can only conclude that Mike Nifong viewed a critical medical report that has not yet been provided to the defense in discovery.  That comes from the defense attorney‘s motion, and what they‘re basically saying is, he‘s referring to some report that he says he saw, that he couldn‘t have possibly seen, because it didn‘t get released to him until April 5, so there must be some other medical report that he saw that has yet to be disclosed.  That‘s the way to give him the benefit of the doubt, but if that document doesn‘t exist—we now have Yale Galanter with us.  Yale, how are you? 

YALE GALANTER, CRIMINAL DEFENSE ATTORNEY:  Susan, how are you doing? 

FILAN:  How would you get his fat out of the fire on this one, Yale? 

GALANTER:  Yes, Susan, this is one those classic got you moments.  Not only do they have a case with no evidence, a complaining witness who has absolutely no credibility, now we have absolute positive misconduct on the part of the D.A.  He couldn‘t have read a report that wasn‘t printed until March the 30th, as he claimed, on March the 29th.  I mean this is absolutely one of those defense got you moments.

We‘ve been saying all along that Mike Nifong has probably been shooting from the hip, gave too many interviews, didn‘t know all the facts, didn‘t have all his ducks in a row and this is clear-cut proof that that‘s accurate, because one of two things occurred.  Either he never read the report, as he said, or there are reports that are missing that should be in the file to document the fact that he would have gone to the hospital earlier, who he spoke to, how he got his information, and none of that was in the 1,300-some odd pages that was turned over to the defense. 

FILAN:  Mark Edwards, let me ask you to take a look at this.  This is also from the defense attorney‘s motion.  This is also another stab at giving him the benefit of the doubt, but let me ask you, after you‘ve had a chance to see it, if this washes with you.  The only alternative explanations for Mr. Nifong‘s public comments on that date are that before the Duke hospital records provided in discovery were printed out and picked up by Investigator Himan, Mr. Nifong either went to Duke Hospital and reviewed those records or someone from Duke Hospital brought those records to him for his review or he spoke with someone at Duke Hospital who reported details of the contents of the medical records to him. 

Mark, that may be so, but wouldn‘t that have violated her HIPAA rights at that point?  Didn‘t those medical records have to be disclosed to him only through that subpoena? 

MARK EDWARDS, NC CRIMINAL DEFENSE ATTORNEY:  It very well could have.  And I think what the defense may be trying to do here is to find out whether these statements that he made, whether this was based on his conversations with the alleged victim here, and if they were, this may have made Mike Nifong a witness in this case, and if they can establish that she is the source of that information...

FILAN:  No, no, no, but he‘s saying—he‘s telling—when he made those statements to the media, and I think we all remember them very well and I can play a bite of sound for you in a bit, but I think he‘s clearly saying that he thinks there was a rape based on medical documentation.  Looks like he couldn‘t have seen it at the time that he made those statements.  This little end runner that‘s in the defense motion to try to give him that benefit of the doubt, instead of outright calling him a liar, my question to you is does that wash for you?  Does that fly?  Do you think that could be?

EDWARDS:  Well, I don‘t, and that‘s why I think that there may be another source for the information and if not, then Mike has really painted himself into a box.

BURRIS:  I‘ve got to believe honestly that he wouldn‘t have said that he thinks it was a rape based upon medical evidence without having either seen something or spoken to someone other than the victim.  I can‘t imagine him saying that based upon medical evidence relying upon the victim that that‘s the source of it, so—but it would not surprise me if in fact he had conversations with someone from the hospital, as he‘s making an inquiry. 

He certainly has a right to do that.  He‘s investigating a person of crime.  He could make an inquiry and ask medical personnel what‘s in those records, do you see anything that suggests, that supports an allegation.  That person said he did not rely upon it.  Whether he should or not, I don‘t think—I think he could have.  He probably shouldn‘t have made any statements at all, but to the extent that he was relying upon something from a medical record, that‘s not inconsistent with me...

FILAN:  John...

BURRIS:  ... the records not being available. 

(CROSSTALK)

FILAN:  John, what you‘re saying makes perfect sense, but I want you to see if it makes sense in light of what I‘m going to read to you in just a minute. 

BURRIS:  OK.

FILAN:  When Investigator Himan alleged that the accuser stated that she was hit, kicked and strangled, he omitted that the examining physician for the accuser at 3:14 a.m. found no neck, back, chest, or abdominal tenderness.  His probable cause affidavit also omitted that the accuser told the sexual assault nurse in training that she was not choked, no condoms, fingers, or foreign objects were used during the alleged sexual assault and that the sexual assault nurse examiner noted that the accuser‘s head, neck, throat, mouth, chest, breasts, abdomen, upper and lower extremities all were normal, even though the accuser complained of tenderness over her body.

Yale...

GALANTER:  I mean—you know, we keep showing the clip about Mike Nifong and the chokehold.  If he read those reports, and he went on the air and said, this woman was choked, she had to force herself, she couldn‘t breathe.  I mean he just out and out misled the public.  Additionally, the thing that makes John‘s theory not make any sense is in these medical reports, if he really read them, he would have known that she was on a prescription drug called Flexeril, which caused her drowsiness, which made her go to sleep, because when you combine that with alcohol, that‘s one of the common effects. 

He got on the air and he said to everybody, well, she may be under the effects of a date rape drug Rohypnol.  Knowing that there was no toxicology done, knowing that he had never seen a report, Susan, I‘m telling you, not only do we have a bad case here, now we have misconduct that can be proven on the part of this prosecutor.  And I think the defense...

(CROSSTALK)

GALANTER:  ... was very generous to give him an out, calling him an officer of the court and saying, you know, tell us what really occurred here. 

(CROSSTALK)

GALANTER:  They were very generous in their motion. 

BURRIS:  And frankly, I don‘t think that this motion goes anywhere on the question of anything he has said in the public before.  What‘s important of course are the records and the notes made by law enforcement people.  I think all of what you‘re saying goes to cross-examination of the witnesses, it goes to cross-examination of the various people who produce evidence, but it does not go in any way, it seems to me, become relevant as to whatever he said...

FILAN:  But John...

BURRIS:  ... as it relates to this case. 

FILAN:  John...

(CROSSTALK)

FILAN:  John, you‘re fighting a good fight.  You‘re fighting a good fight, but here‘s the problem.  He said there was going to be DNA (UNINTELLIGIBLE) there‘s no DNA.  He said there was going to be medical documentation.  (UNINTELLIGIBLE) there‘s no medical documentation.  There‘s an eyewitness who says it‘s a crock that anything happened.  Changes her story later and says, well, maybe something happened. 

We‘ve got problems with the timeline.  We‘ve got problems with the alibi.  We‘ve got problems with the eyewitness identification.  We‘ve got problems with the lineup.  We‘ve got problems, problems, problems, and now it looks like this D.A. may be less than truthful. 

(CROSSTALK)

FILAN:  That‘s the biggest problem of all. 

BURRIS:  The thing that you said...

FILAN:  It‘s OK to have a bad case and it‘s OK to lose...

BURRIS:  ... about the credibility of the case...

FILAN:  ... but to mislead...

BURRIS:  It sounds like it‘s a bad case.  It sounds like he has a bad case.  It‘s always been clear to me that he has some problems with this case and maybe he‘s overstated some of those areas, but I think we‘re making a big to do about nothing as it relates to him and the prosecution of this case...

(CROSSTALK)

GALANTER:  Come on John...

(CROSSTALK)

GALANTER:  ... report that hadn‘t even been printed yet. 

(CROSSTALK)

BURRIS:  Hold on, hold on. 

(CROSSTALK)

GALANTER:  How did he read a report...

BURRIS:  But the question is, question is...

GALANTER:  ... that didn‘t exist. 

BURRIS:  ... what does that have to do with the proving of the case?

GALANTER:  It has to do...

(CROSSTALK)

GALANTER:  ... with it—with as a prosecutor, he is holding these three young lives in his hands. 

(CROSSTALK)

GALANTER:  Their liberty is at stake. 

FILAN:  John, let him finish.

GALANTER:  He‘s got an ethical obligation to tell the public the truth and not to sway this jury pool...

(CROSSTALK)

GALANTER:  ... and that‘s what he‘s done. 

(CROSSTALK)

BURRIS:  Look...

FILAN:  All right, let me go to Mark Edwards. 

(CROSSTALK)

FILAN:  Let me go to Mark Edwards.  Mark, what do you make and what do people locally make of the fact that Nifong‘s own campaign manager is now switching horses and going to back the guy that‘s going to possibly unseat Nifong?  What does that tell us what‘s going on down there? 

EDWARDS:  It‘s very interesting.  This case has really engendered a lot of passions in the community and the more revelations that come out about the weakness in the state‘s case and the problems, the stronger the motions are becoming, and this potentially could be a problem for Mike.  I mean, the thought of someone running a writing campaign and having a chance of success is something you sort of look at and scoff at, but it‘s sounding more and more like it‘s a possibility and I think that‘s a real problem for him.

FILAN:  And that‘s based on the Duke case? 

EDWARDS:  Yes.  Absolutely.  Everything is based on the Duke case. 

FILAN:  All right.  Great panel.  Mark Edwards, John Burris, Yale Galanter, thanks so much for joining us. 

GALANTER:  Thanks, Susan.

FILAN:  Coming up, a man steps out of his family‘s minivan to take a photo and then his wife commits suicide by driving over a cliff with their two children in the van.  Now, he‘s being charged with aiding in her suicide and with child endangerment. 

And the manhunt continues for a Nevada millionaire police say killed his wife and then shot a judge who was deciding their divorce.  We talk to his former divorce attorney next. 

Plus, we‘ve been promising we‘d see Dan all week.  Finally today Dan the man is coming back for his final “Closing Argument”.  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:  Back now with a tragic story.  A family goes on a trip to a state park.  The husband steps out of their minivan to allegedly admire the view or take a picture and the wife who was reportedly suicidal puts the car in drive, locks the doors and drives off a 300-foot cliff with her 3 and 5-year-old daughters strapped in the back seat. 

The children survived but the wife doesn‘t and now authorities are charging the husband, Victor Han, with reckless endangerment, endangering the welfare of a child and promoting a suicide attempt because prosecutors say Han knew his wife was suicidal and had threatened to harm the children, and that he was intent on letting his wife fulfill her death wish. 

Joining me now is “New York Daily News” reporter, Maureen Seaberg. 

Hi, Maureen.

MAUREEN SEABERG, “NEW YORK DAILY NEWS”:  Hi, Susan.  Thanks for having me.

FILAN:  OK.

SEABERG:  And congratulations to Mr. Abrams.

FILAN:  I‘m sure he‘ll be glad to hear that. 

(CROSSTALK)

FILAN:  Maureen, can you give us some more details about what happened in this case?

SEABERG:  All that‘s left to discover is the why.  The Korean community on Staten Island is in deep shock over this tragic event.  You talk to people on the street who worked with him, there were really no signs thus far that anything like this would happen.  It‘s horrible. 

FILAN:  Do you know what Han told the police?  He was interviewed for about 12 hours after this and based on that interview, the police changed their view of what happened and that‘s what resulted in him being charged.  Do you know what he told them? 

SEABERG:  Yes, apparently he told him his wife had warned him that she would harm herself and her children given the chance. 

FILAN:  And do we know whether he really did believe that she was suicidal?  I mean how convincing was...

SEABERG:  Apparently police are very convinced of this.  And the charges prove that. 

FILAN:  How are the kids doing? 

SEABERG:  From what I understand, they are staying with their maternal grandmother.  They have a very supportive community and family network taking care of them now. 

FILAN:  Maureen, thanks so much for joining us. 

SEABERG:  My pleasure.

FILAN:  It‘s a pleasure to have you.  Joining me now, retired New York State judge Leslie Crocker Snyder and criminal defense attorney Gary Casimir. 

LESLIE CROCKER SNYDER, RETIRED NY STATE JUDGE:   Hi, Susan.

GARY CASIMIR, CRIMINAL DEFENSE ATTORNEY:  Hi, Susan.

FILAN:  Let me start by reading New York statute on promoting a suicide attempt.

The statute reads a person is guilty of promoting a suicide attempt when he intentionally causes or aids another person to attempt suicide.  Promoting a suicide attempt is a class E felony.

Let me start with you Judge Snyder.  What do you think about that charge as it applies to the few facts that we know in this case? 

SNYDER:  Well, what‘s interesting to me, Susan, is that actually, if in fact he knew and intended to assist her in promoting—in her suicide, knowing that she was suicidal, and all the facts are what they are made out to be presently, which may not be true, then he could also be charged with manslaughter in the second degree, which actually mimics the language promoting suicide but is a class C felony.  So I think that we‘ve got to get all the facts straight, because under manslaughter, it‘s also intending to assist her in committing suicide, so it seems like an odd charge to me, because if they believe that he really knew and intended that she kill herself and especially knowing the kids were in the car, he could be charged with a far more serious crime. 

FILAN:  Gary, I want you to take a look at this.  This is from the New York State Park police‘s statement.  It says it is believed that Mr. Victor Han knew his wife was suicidal and he afforded her an opportunity for her to carry out her intentions.  Mr. Han left his vehicle, knowing that his wife was suicidal and that she had early threatened to harm herself and their two children.  Gary, under that, don‘t you think the charge is an appropriate one?  It‘s one that could stick and could be proven? 

CASIMIR:  Nope, I think they‘ve got a tough case here.  And so far,

it‘s not enough here.  I think they would have to show that he knew that

his wife was going to get behind that car and take off.  He‘s going to have

I mean right now there‘s no indication that says the wife said, you know, if I get a chance to get behind that wheel, I‘m going to drive off. 

T

In other words, they‘re picturing it as if it was a setup.  Like he parked the car in a particular way, she knew she was going to do it, and he stepped out of the car and just watched her drive off.  I‘m not getting that from the statement so far and maybe I don‘t—we don‘t have all the statements.  What I have gotten so far is that she knew that his wife may have acted suicidal or said suicidal things in the past, which are questions a police officer would reasonably ask a person who is with someone who commits suicide, but then to take the next leap and say you set her up to do this, I don‘t know if he...

(CROSSTALK)

FILAN:  ... but you knew...

CASIMIR:  Yes.

FILAN:  ... she was going to do it and you didn‘t stop her. 

CASIMIR:  Well that‘s the whole thing.  In order to know that she was going to do it, you would have to know that she was going to get behind the vehicle and take off.  Now I don‘t know...

FILAN:  What about with respect to the kids, Gary? 

CASIMIR:  Yes.

FILAN:  What about with respect to the kids?  Let‘s say you‘re the dad, you know the mom is suicidal and she‘s behind the wheel with her two little kids in the car.  Have you done something criminal like reckless endangerment by letting her be in there with them? 

CASIMIR:  If you believe at that moment in time she‘s suicidal, yes.  I don‘t have any doubt about that.  The question is when he made these statements, was she talking about you know past events that she said she would do something.  I mean you have a fight with somebody, they‘re in a rocky relationship.  I don‘t know how these statements are being read or how they were taken. 

We don‘t have the complete statements, but if you‘re asking whether or not this man has a possible defense or whether or not the police have enough here rather to substantiate a case and say that he intentionally knew that she was going to drive off the cliff of the car, which is what I think they need to prove.  It‘s not enough to just say...

(CROSSTALK)

CASIMIR:  ... he should have done more.  There‘s an intent...

(CROSSTALK)

CASIMIR:  ... to help her commit suicide. 

FILAN:  Yes.  Judge Snyder, jump in.

SNYDER:  Yes, I‘d like to jump in, because obviously the only way you ever know what someone‘s knowledge was is circumstantially, since you can‘t x-ray their minds.  So it‘s very important that we know exactly what all the statement are and I agree with Gary that he certainly will have a defense, and we don‘t know all the statements. 

However, if they can show as they claim that he said, that he—at the time he knew that she said she was suicidal and would do harm to herself and her children, that he knew, which he obviously must have, that she was parked in a dangerous area in terms of this 950-foot approximately precipice, which she was very near and which there was room for her to drive over, that he allowed her to stay in this car with two kids with the doors automatically locking, he doesn‘t have to know for a fact that she was going to drive over the cliff.  There is a burden of proof that‘s high of course, proof beyond a reasonable doubt, but it‘s that he intentionally aided her in committing suicide.

(CROSSTALK)

CASIMIR:  Judge...

FILAN:  There must be something in his statements though, because after those 12 hours of questioning, the charges came, but one of the questions that I had was in general there is no affirmative duty to assist.  There is no sort of Good Samaritan obligation, so if you see somebody is ill, you don‘t have to assist them. 

If you see someone is going to commit a crime against somebody else, you don‘t have to come to their aid.  But what if it‘s your own wife and you know she‘s going to commit suicide, do you have then an affirmative duty to stop her and if you don‘t, does that equal an intent to aid and abet her? 

SNYDER:  I don‘t think you have an affirmative duty to stop her.  I think that the prosecution has to prove affirmatively beyond a reasonable doubt that he intentionally aided her.  What does that really mean, because those are the words of the statute, as well as the manslaughter statute. 

CASIMIR:  But Judge, you would have to agree that you have to have an intent to aid her to commit suicide...

SNYDER:  No, I‘m saying that.  That‘s absolutely right. 

CASIMIR:  ... in the way she did it, Judge. 

SNYDER:  But—well...

(CROSSTALK)

SNYDER:  ... yes, but that would depend on the circumstantial facts, so that‘s what I was saying before.  You‘re never going to prove it directly, Gary.  You‘re going to prove it circumstantially.  They drove there.  I think that he may have admitted he wasn‘t really taking a picture, which is why he first claimed he got out the car. 

Again, we don‘t know these facts for certain.  He then allowed her to stay in the car with the kids near this dangerous precipice, knowing that she—assuming they could prove this—was suicidal and intending to assist her.

FILAN:  I mean the worst case scenario would be you know if they had had an argument and she said I feel suicidal and he said go ahead, why don‘t you go to the highest point, drive up here.  There‘s a cliff right here.  Go ahead.  I‘m going to get out and he got out and she did it.  I mean...

CASIMIR:  Yes, well that‘s definitely—that‘s a clear-cut case here, but that‘s not what I‘m getting.  First of all...

FILAN:  But what did he tell the police? 

(CROSSTALK)

FILAN:  That‘s what makes me think that this may be much more provable than we‘re allowing to believe.

CASIMIR:  Yes, well I—the judge made a very interesting point that he didn‘t really go out to take a picture.  I didn‘t see that in any of the materials I have that he recanted that aspect of his statement...

SNYDER:  And that‘s what I read, Gary.  I don‘t know if it‘s accurate. 

CASIMIR:  I don‘t know either, but that‘s crucial too.  I say that that aspect would definitely lead me to believe well, what did he go out there to do.  See that changes things a little bit.  The other part about if it‘s just a general allegation that you know your wife is in a bad state or your wife has threatened these kind of things before but has never done them, there‘s no indication here that the wife hasn‘t been left alone with the children in the past. 

FILAN:  Right.

CASIMIR:  I mean there‘s not a history here of...

SNYDER:  Yes, but...

(CROSSTALK)

FILAN:  I‘ve got to wrap. 

CASIMIR:  There‘s no history here that she‘s under protective custody or the kids are being separated from her at home.  They left home, you know, when she goes out...

FILAN:  I‘ve got to wrap. 

CASIMIR:  ... to work as an architecture...

SNYDER:  OK...

FILAN:  I guess you‘d both agree with me that this is really a fascinating case.

CASIMIR:  Absolutely.

SNYDER:  It is an interesting case.

FILAN:  Thanks for joining us Judge Snyder, Gary Casimir, thanks so much.

SNYDER:  Good to see you, Susan.

FILAN:  Coming up, the FBI now part of the manhunt for a Nevada millionaire who police say killed his wife and then shot the judge hearing their divorce.  We talk with Darren Mack‘s former divorce attorney about why he may have snapped. 

And a mother and father fighting in court over whether their 8-year-old son should be circumcised.  How does a judge make a decision like that?

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 Wesley Brown.  He‘s 42 years old, six-feet tall, and he weighs 230 pounds.  He was convicted of first-degree rape and 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.

(NEWS BREAK)

(COMMERCIAL BREAK)

FILAN:  For the first time, police are releasing 911-calls made on Monday morning after a sniper shot a Reno family court judge in the chest as he stood next to his third floor window.

(BEGIN 911 CALL)

UNIDENTIFIED MALE:  Paramedics with (UNINTELLIGIBLE) emergency.

UNIDENTIFIED FEMALE:  There has been a gunshot.  One of the judges has been shot.

UNIDENTIFIED FEMALE:  (UNINTELLIGIBLE) at the courthouse, just received an update that (UNINTELLIGIBLE) is on the third floor, Judge Weller‘s chambers, he has been shot.  I have just been advised that we have shots fired (UNINTELLIGIBLE) sniper.

UNIDENTIFIED MALE:  Does anybody know if we have an active shooter or a sniper? 

(SOUNDS)

UNIDENTIFIED MALE:  Hey, Terry, it sounds like a sniper in the parking garage. 

UNIDENTIFIED MALE:  I‘m on the third floor.  The judge is being evacuated right now.  They‘ll be bringing him down.

(END 911 CALL)

FILAN:  The FBI is now part of the nationwide manhunt for Darren Mack.  He‘s a wealthy pawnshop owner and authorities consider him armed and dangerous.  He‘s suspected in Judge Chuck Weller‘s shooting.  Judge Weller is the same judge who was presiding over Mack‘s divorce case.  Before coming to the courthouse, police say Mack stabbed his estranged wife, Charla Mack, to death. 

Joining me now, Darren Mack‘s former divorce lawyer, Richard Young.  Hi, Richard.  Thanks for coming on the program. 

RICHARD YOUNG, DARREN MACK‘S FORMER DIVORCE ATTY:  You‘re welcome, Susan. 

How are you today?

FILAN:  Fine.  How contentious was their divorce? 

YOUNG:  This began right from the very beginning as a potentially high conflict case and it almost immediately became high conflict in all regards, both child custody and financial issues.  It was very heated. 

FILAN:  What were they fighting over the most, the kids or the money? 

YOUNG:  I don‘t think you could differentiate, Susan.  The battle began

when Charla Mack filed her divorce papers, in which she was seeking sole

physical custody of their daughter, Erica, even though both parents Erica -

pardon me—both parents, Darren and Charla, had been very involved in raising Erica...

FILAN:  Richard, I want to show you part of the judge‘s order.  I‘m going to read it for our audience and I want you to respond to it for us please.  This is Judge Weller‘s order.

Mack disputed Weller‘s order to pay Charla $10,000 a month alimony, claiming he couldn‘t afford it, although financial records showed he earned 44,000 a month.  Mack at the end of 2003 estimated that his net worth was 9.4 million.  Weller had found him in contempt of court for failing to make alimony payments and for violating a mutual financial restraining order.

Sounds like he couldn‘t follow the judge‘s orders because he disagreed with the judge‘s orders and the judge held him in contempt.

YOUNG:  That‘s true.  And that‘s usually what happens when somebody doesn‘t follow the judge‘s order...

FILAN:  But he had a beef against this judge that seemed to go beyond not liking the orders entered in this case.  Are you aware of what he claimed about this judge? 

YOUNG:  Well, I am not, because that came about after my representation of Mr. Mack ended.  And it‘s not unusual to have people complain about divorce judges, because the power that divorce judges wield over people‘s lives is enormous, and it‘s in a very heated environment oftentimes. 

FILAN:  More about the money problems between these two.  They—there‘s a statement here that currently we owe $500,000 on the line of credit and approximately 35,000 on credit cards, not to mention any new credit cards you‘ve opened up that I don‘t know about.  That I believe is from an e-mail that he was writing to her.  Do you know anything about that? 

YOUNG:  Yes, I do, and that was part of the case and its problems at the very beginning.  Charla was spending uncontrollably, and Darren was complaining in every way he possibly could to try to stop her spending, because he was assuming and paying all of the family obligations and he was receiving absolutely no cooperation or help from her to stop the spending so that it could get under control. 

FILAN:  You know it‘s hard to listen to criticisms of her now, because we know how tragically her life ended.  In your representation of Darren Mack, did you ever think he was the kind of guy that would snap, allegedly murder his wife, allegedly shoot the judge presiding over his case? 

YOUNG:  Never.  We...

FILAN:  You didn‘t see any indications not in him at all? 

YOUNG:  Absolutely none.  We found Darren to be a very charming man, very intelligent, organized, a family man.  He had frequently expressed his deep love of both Charla and their child Erica to us...

FILAN:  Wow.

YOUNG:  ... and we saw nothing. 

FILAN:  Wow.

YOUNG:  Nothing at all like that. 

FILAN:  Things went so horribly wrong.  Richard Young, thank you so much for joining us on the program.

YOUNG:  Susan, it‘s a pleasure. 

FILAN:  Joining me on the phone now is Judge Chuck Weller‘s spokesman, Jim Denton.  Jim, thanks for joining us. 

JIM DENTON, JUDGE WELLER‘S SPOKESMAN (via phone):  My pleasure.  How are you today?

FILAN:  How is our judge doing? 

DENTON:  The judge is doing fine.  He is at an undisclosed location, he is still under police protection, and he is recuperating. 

FILAN:  Have you been able to determine how his spirits are?  I mean, his health sounds good, but what‘s his mood? 

DENTON:  Well, I think the best indication of what Judge Weller‘s mood was, was when I talked to him the other day and he told me for the first time in the years that I‘ve known him about having actually been shot in 1978 in a grocery store or a liquor store holdup and right after he graduated from law school and he said you know, I learned—I try to learn from my experiences.  He said what he learned from that experience when he was shot the second time was to drop.

FILAN:  Does he plan to return to the bench soon? 

DENTON:  He plans to return to the bench as soon as his—the medical conditions and the safety concerns are resolved. 

FILAN:  Did he have any idea who did this to him after it happened? 

DENTON:  No.  No.  He was asked by law enforcement for a list of people that he‘d had problems with in court cases and that possibly could be involved in this, and he furnished a list of those people to law enforcement. 

FILAN:  Did he have any concerns about his wife that he conveyed to paramedics when they got there? 

DENTON:  As Judge Weller told me when he was hit, the first thing that he yelled out was call Rosa and get her and the kids out of the house, because he had been experiencing some harassment on various levels in the weeks prior to the shooting. 

FILAN:  I don‘t think people realize how difficult a job it is to be a family court judge.  They say in the law—they say in criminal law you see the worst people on their best behavior, and in family law you see the best people at their worst behavior and it sounds like this judge had to deal with that every day and we put our trust—we put our trust in judges to help us solve problems in our lives and to have somebody take a shot like this literally at a judge just strikes to the heart of our very system.  Jim Denton...

DENTON:  Well it strikes to the heart of the very system because we have an appellate system in this country, that if you do not like the decision of a judge, you can appeal that decision. 

FILAN:  Exactly.  If you don‘t like it...

(CROSSTALK)

FILAN:  ... take an appeal.

DENTON:  ... bullets. 

FILAN:  Jim Denton, thanks so much.  Please, please convey our best, best wishes to the judge. 

DENTON:  I will.  Thanks so much.

FILAN:  Coming up, parents fighting in court over whether to circumcise their 8-year-old son.  How is a judge supposed to decide this one?

And later, many of you writing in asking if and when Dan would say a final on-air good-bye.  Well today is your lucky day.  Dan will be here for his last “Closing Argument” and read some of your e-mails. 

(COMMERCIAL BREAK)

FILAN:  Coming up, a mother and father battle it out in court.  She wants their 8-year-old son circumcised.  Dad does not.  How does a judge decide this one? 

(COMMERCIAL BREAK)

FILAN:  Couples often fight in court over their children, but one Chicago couple has taken it to a new level.  The mom wants to have their 8-year-old son circumcised.  The dad does not.  The child‘s mother says the procedure is medically necessary to prevent recurring painful inflammation she says the child has experienced during the past year, but the father says the boy is healthy and circumcision is an unnecessary medical procedure that could cause him long-term physical and psychological harm.

Joining me now is Alan Toback, attorney for the father suing to block his son‘s circumcision and Tracy Rizzo, attorney for the mother who wants her son circumcised.  We also have retired Dade County, Florida Circuit Court Judge Amy Dean.  Tracy, without getting too graphic, don‘t get so medical on us, but tell us in general why does your client want this procedure for her son?

TRACY RIZZO, ATTORNEY FOR MOM WHO WANTS SON CIRCUMCISED:  My client wants this procedure to stop future infections or inflammations the child has been having.  There‘s been swelling, discomfort, redness and she wants her child to live a normal child life without having to worry about getting new infections every few months.

FILAN:  Does she a medical report that supports that the circumcision is going to cure the problem that the boy is complaining of?

RIZZO:  Yes, I mean everybody agrees that if the child were to have the circumcision that he would not have these infections again.

FILAN:  Alan, why is your client so opposed to this if his son has got this medical problem and this procedure, as Tracy said everyone agrees is the answer? 

ALAN TOBACK, ATTORNEY FOR DAD SUING TO BLOCK SON‘S CIRCUMCISION:  Well, Susan, I don‘t think everyone agrees that this procedure is the answer.  Even their own expert testified that as we sit here today, the child is perfectly healthy, the child has no inflammation, the child is fine, and the father... 

FILAN:  But the inflammations recur, so by not doing it it‘s going to come back.  He may not have it today, but he‘ll have it tomorrow or next week. 

TOBACK:  There‘s no question they may recur.  Their own experts never determined what the cause of the inflammation is.  As we sit here today, they don‘t know whether it was poor hygiene, the child going frequently swimming, and this child is having a healthy, normal childhood and in a year or two, he will outgrow the problem from which he currently suffers. 

FILAN:  And do you have a medical report that says that?

TOBACK:  And the other problem is...

RIZZO:  No, they don‘t.

TOBACK:  Yes.  I mean our witnesses testified that—the child has a natural development and as he gets older, these adhesions, this rubbing, this chafing will naturally go away.

FILAN:  But why is the dad...

TOBACK:  And every...

FILAN:  ... so against it?  What‘s the harm?  If this is going to help the kid and he‘s going to have a healthier life, why can‘t this be the procedure put in place?  What‘s the problem?

TOBACK:  Well, they don‘t want to give the child an unnecessary surgical procedure.  This isn‘t about neonatal circumcision.  This is about circumcising a healthy 9-year-old...

FILAN:  Is there any religious element to this...

TOBACK:  ... and submitting him to surgery. 

FILAN:  ... at all?

(CROSSTALK)

TOBACK:  Not as far as we‘re concerned.

RIZZO:  Yes, there absolutely is.  Yes, there is.

TOBACK:  Tracy has raised the issue for the first time yesterday in the press, but there‘s been very little, if any testimony, during the trial about the religious overtone of the case and...

FILAN:  Let me go to Judge Dean.

TOBACK:  ... it‘s just a red herring.

FILAN:  Judge...

(CROSSTALK)

FILAN:  Let me go to Judge Dean.  Judge, have you ever, ever seen a case like this?

AMY DEAN, RETIRED FLORIDA CIRCUIT COURT JUDGE:  Exact case like this, no, but I‘ve certainly seen cases where medical care has been the issue between the parents and I‘ve had to make decisions about it. 

(CROSSTALK)

DEAN:  It doesn‘t matter what the procedure is, it‘s just that you to make a decision on health care.

FILAN:  So how in the heck do you make a decision when presumably, most parents love this child, mom wants what‘s best, dad wants what‘s best.  Mom says do the circumcision.  Dad says don‘t touch him.  How does the judge decide? 

DEAN:  Well, the judge has to listen to the parents insofar as what they‘ve observed, but the judge also has to hear from the treating physician, if one‘s been required, and that‘s what gave rise to all of this.  The judge has to listen to any expert testimony and also look at what the experts are relying upon in order to make the decision, and then see if there are any other methods, other than the extreme nature of surgery in order to right the problem. 

TOBACK:  Exactly.

FILAN:  Does this boy have any say? 

DEAN:  Well, it‘s up to the judge whether the boy would have any say.  Personally, I don‘t see the need of it.  I did read somewhere that dad had him write some letters, which I thought was rather appalling, but in this particular situation, I don‘t think the judge needs the little boy.  I think the judge might actually be able, from what I read, find some lesser means initially, and that is looking into whether there‘s some need for the boy‘s hygiene to be looked into, maybe he should be kept out of the pool for a while and frankly if two adults who have a kid have to turn to somebody to make a decision about their child‘s health care, I think maybe it‘s time to have a Guardian ad Litem and maybe the judge needs to have a status conference in three months or so and then make a decision about surgery, but in any case, the judge should be making a decision certainly before August.

FILAN:  Tracy...

(CROSSTALK)

FILAN:  Tracy...

TOBACK:  I‘m sorry. 

FILAN:  Tracy...

RIZZO:  Yes.

FILAN:  ... if there are perhaps less drastic ways to resolve this problem, would the mom be willing to give it a period of time and try these less intrusive—anything short of surgery?

RIZZO:  She was.  This has been going on since May of ‘05.  She‘s tried different medications for the child, but the child has these problems reoccurring, and so nothing is helping this child and so the only option now is surgery.  She‘s tried to keep the child from swimming.  She‘s tried to keep the child—the hygiene carries an issue, I wish every would stop raising the issue of hygiene. 

This child is clean.  The doctor testified that child has good hygiene.  The mother testified as to how well the child cares for himself.  That‘s not what‘s causing these infections...

FILAN:  Tracy...

(CROSSTALK)

FILAN:  ... is this really...

TOBACK:  Tracy, this child...

FILAN:  ... is this really, really about circumcision or are these just two parents who would do anything to get back at each other using their child in the most horrible way, in the middle?

RIZZO:  Well, I could only speak for my client and I certainly know that her only motive here is to help her child that she‘s seen in pain for over a year.  She absolutely has no interest in fighting with her ex-husband.  She‘s been the sole caretaker of this child, especially since the separation in 2000.  The father hasn‘t gone to one doctor‘s appointment with this child...

FILAN:  All right.

RIZZO:  ... since they‘ve been separated in 2000.  She just wants to care for her child like she‘s been doing for the past six years...

FILAN:  All right.

RIZZO:  ... since the parties have been separated and she certainly is not interested—and the last thing she wants to do...

FILAN:  Yes.

RIZZO:  ... is fight and that‘s why if you look in the media, my client hasn‘t been in the media at all...

FILAN:  Thank you...

(CROSSTALK)

RIZZO:  ... unlike Mr. Toback‘s client...

FILAN:  Thank you Tracy...

(CROSSTALK)

FILAN:  Thank you Tracy.  Thank you Alan.  Thank you Judge Dean.  This really is a tough one. 

UNIDENTIFIED FEMALE:  You‘re welcome.

FILAN:  Hope the parents can solve it, but if not, we‘re going to need the judge. 

Coming up, the moment you‘ve all been waiting for.  The big cheese is in the studio.  Dan is back for one last “Closing Argument”.  And he‘s going to read your e-mails.  You‘ve got to stick around for that. 

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.

Police need your help finding Michael Collins.  He‘s 31 years old, five-foot-ten, weighs 220 pounds.  He was convicted of second-degree child molestation 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.  Dan will be here after the break.

(COMMERCIAL BREAK)

DAN ABRAMS, HOST:  My “Closing Argument”—well, this is it.  As you may have heard, I have a new job, running MSNBC.  I am thrilled about it and truly believe we have a unique opportunity to build on some of the successes the network has seen as of late.  I wouldn‘t have taken this job if I didn‘t think I could help propel us to great heights.  But as with most choices in life, I had to make a sacrifice, a big one.  While I‘m going to remain NBC News chief legal correspondent, I had to give up hosting this program that I love so much.

I just couldn‘t manage an entire network and host my show every day although I‘ll admit it.  I thought about it.  For more than four years, this show has been my life and that means all of you have been a large part of it.  Every day, many of the hundreds of e-mails you‘ve sent flattered or insulted me, but all of them made me think.  They were smart, direct, opinionated and I felt like I had pen pals in most of our regular e-mailers. 

You all helped determine how I covered the various stories.  Your thoughts always in my mind.  And I am so appreciative of the comments and support so many of you have sent in since the announcement.  And then of course, there is my incredible staff.  Megan, Corey, Bob, Jamie, Amy, Alexis, Anthony, Shera, Brian, Shannon, Kevin, Lily, Kara, Adrian, Brian and Frank.  My regular crew, Bill, Jim, Jeff, Leo, Joe, Anna, Rob, Alan, Fred and never forget graphics, Kathy, Lisa and Stephanie. 

This was our show, a better name for the program would have been THE ABRAMS TEAM REPORT.  They are the ones who challenged and helped me, told me when I went too far, didn‘t dig deep enough, looked too angry or gently inform me that my tie was crooked.  They cared about this show as much as I did.  For that I‘ll be forever grateful.  So what happens to the show now?  Well, it will be tough to keep THE ABRAMS REPORT on the air without well, Abrams, so this program will end in the relative near future. 

Haven‘t decided yet what‘s going to replace it, but hopefully it will be a more interesting, more compelling program that even more people will watch.  But this is not good-bye.  I‘m not leaving you.  While you won‘t see me at a particular hour everyday on TV, I hope you‘ll recognize a little bit of me throughout the network, at least the good part of me. 

Thank you for everything.  And look out, because I am going to help make MSNBC the news channel. 

Coming up, now that I‘m leaving, suddenly I‘m getting positive e-mails. 

Hey.  We‘ll read some of those when we come back. 

(COMMERCIAL BREAK)

ABRAMS:  Time now for “Your Rebuttal”.  Thank you, thank you, thank you to all of you who sent in e-mails about me taking over running the network. 

Amanda Conklin from La Plata, Maryland, “I guess I should be happy for Dan getting a new job, but for my own selfish reasons I don‘t want to see him go.”  Thank you, Amanda.

Tania Valcourt from West Palm Beach, Florida, “You know every day I‘d race home, walk the dogs, and be ready by 6:00 p.m. for your show.  You have no idea how mad you‘ve made me.”  Sorry, Tania.

Jess Woodward from Winston-Salem, North Carolina, “I think the station picked the correct person to improve MSNBC.  Congratulations.  Unfortunately, yours is the one show in all of television I watch religiously.”  Jess, I am hoping we change that.  I appreciate it. 

John Helsel from Nutley, New Jersey.  “Dan is proof that lawyers can be successful.”  Thank you, John.

Ralph Lowe from Elizabeth, Arkansas.  “What is the real story regarding Dan?  We understand how upset he was on the Duke rape case.  Did he go too far?  Sometimes persons are promoted up and out.”  Well it‘s certainly possible, Ralph, that I could be out at some point, but that would be a heck of an effort to get rid of me.  Let‘s see.  We don‘t want Abrams on the air.  Let‘s have him run the network instead. 

Mary Beth Crowley, “I feel worse about losing my daily fix of you and THE ABRAMS REPORT than I did when I broke up with my boyfriend.  I‘m really going to miss you.”  Thank you, Mary Beth.  I‘m going to miss hearing from all of you. 

Susan Vidolin from Edison, New Jersey.  “You get promoted, well deserved, and the first thing you do is alienate your viewers by not coming on the air to announce it, by not telling us you will not be on your show any longer and by not saying good-bye.  If this is how you treat your girlfriends, it‘s no wonder you are single.”  Nice.  Nice.

Look, I intended to talk to you on Monday.  I‘m sorry.  Things got so crazy.  I wanted to make sure I had the time to talk to you, so I waited until the end of the week.

Mary Rodriguez from New York.  “Good luck on your new job.  Like a lot of women, I didn‘t have to do the single scene because I had you.  Now what do I do?  I have an idea, Mary.  I got four other very handsome and all six-foot-two-plus TV hosts for you to choose from.  Take your pick.  Watch them all. 

Speaking of good looking and tall, David Gregory is up next.  Thank you for everything. 

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.

transcript

The Abrams Report each weeknight at 6 p.m. ET

Discuss:

Discussion comments

,