updated 6/20/2006 12:05:59 PM ET 2006-06-20T16:05:59

Guests: Georgia Goslee, Ed West, Yale Galanter, Rick Francona, Maureen Seaberg, Sarena Straus, Allison Gilman, Joe Bodiford

SUSAN FILAN, GUEST HOST:  Coming up, we get an exclusive look at all the evidence the prosecution has given the defense in the Duke lacrosse rape case and if this is all they‘ve got, things don‘t look good for the D.A. 

The program about justice starts now. 

Hi everyone.  I‘m Susan Filan.  First up on the docket, an MSNBC exclusive.  The media‘s first ever look at the almost 1,300 pages of evidence Durham District Attorney Mike Nifong turned over to the defense in the Duke lacrosse rape investigation. 

Bits and pieces have been released in defense motions, but our own Dan Abrams is the first to get a look at all of it.  Dan thanks for joining us. 

DAN ABRAMS, MSNBC GENERAL MANAGER:  Well, Susan, it‘s good to be back on the program.  I‘ve got to say, we hear so many times on this program again and again, we talk about this case, well, we don‘t know everything...

FILAN:  Right.

ABRAMS:  ... well, we haven‘t seen all the discovery.  Well now I‘ve seen them all.  It‘s all numbered.  Every page is numbered of the discovery.  I‘ve seen it all now everything that the D.A. handed over to the defense team, and this case is even weaker than I originally thought. 

FILAN:  Really?

ABRAMS:  I mean, look, I was—I had come out on this program and said that I didn‘t think that—I thought it was time for the D.A. to drop the charges, after seeing the accuser‘s statement, after seeing the sexual assault nurse‘s statement, after seeing the statement of Dave Evans and the other captains who gave statements early on, after seeing dates for when documents were subpoenaed, all the medical reports, everything else, I don‘t understand how Mike Nifong brought this case.  I really don‘t understand it.  And I‘ll tell you and I mean this seriously, because you look at the accuser‘s statement and you‘ve got the quotes there...

FILAN:  Right.

ABRAMS:  ... it is constantly contradicted by the other evidence and even the accuser‘s statement itself is entirely contradicted by the sexual assault nurse‘s report. 

FILAN:  Well that‘s the thing.  You‘ve always said to me what do you want to see, if you could see if for yourself, what would you want to see?  I would want to see the accuser‘s statement.  I‘d want to see the nurse‘s report.  You‘ve seen both.  Let‘s take a look.

The accuser‘s statement to the police—the boys hit and kicked me.  Matt grabbed me and looked and me and said sweetheart you can‘t leave.  He grabbed the back of my neck and said I‘m going to kill you (BLANK) (BLANK) if you don‘t shut up.  They started kicking me in my behind and my back.  Matt hit me in the face while Dan and Brett kicked me.

But then what she says to the Duke Medical University Center, to the doctor...

ABRAMS:  March 14, the day after the incident. 

FILAN:  That‘s right.  The doctor who examines her, 27-year-old female alleged assault by three men, denies other physical assault, no evidence of other physical assault—Dan. 

ABRAMS:  And also, I mean that‘s not the only contradiction.  I mean depending on which story she‘s telling, depending on which time she‘s telling the story, it changes, meaning she went to the UNC Medical Center and there‘s a report about that from March the 15th, and the doctor there says she reports hitting her head on the sink and that that‘s how she may have had certain injuries. 

It really—and then again, the sexual assault nurse has yet a different story about what she says, but most significant to me is the fact that you read the sexual assault nurse‘s statement, right, and we‘ve talked about the fact that the sexual assault nurse found some swelling there, not necessarily tearing or anything, we knew about that.  What we didn‘t know, at least I didn‘t know, is that the sexual assault nurse basically says that the accuser tells her that it‘s all basically the fault of the second stripper. 

I mean in the sexual assault nurse‘s report, it says that the second stripper helped carry her into the—back into the house as she‘s screaming no, no, no, that after it happens, according to the sexual assault nurse, she‘s making—she takes all of her money, that the second stripper steals her money, she helps her—helps them bring her into the house, steals her money.  That‘s directly contradicting what she said in her statement where she talks about oh, we were trying to hold on to each other and we were separated.  I mean...

FILAN:  And that‘s what she told the police. 

ABRAMS:  That‘s in the written statement she gave to the police, is her saying that they were basically trying to—she and the second stripper were holding on to each other and they got separated.  To the sexual assault nurse, she‘s saying basically it‘s all the second stripper‘s fault.  She carries me into the house and then steals my money. 

FILAN:  But you know, Dan, sometimes in sexual assault cases, we‘ve talked about this before, it‘s so traumatic, you can‘t remember everything, it doesn‘t sound like you‘re saying memory loss.  It sounds like you‘re saying liar. 

ABRAMS:  Look, I‘m not willing to go that far.  I‘m not willing to say she‘s lying.  What I am willing to say is that there are so many contradictions in her story that this D.A. never should have brought this case.  And it is just from looking—I mean you can tell that just from looking at the sexual assault exam report and remember, her statement to the police, the written statement I read, that‘s from weeks later. 

FILAN:  Right.

ABRAMS:  That‘s from the beginning of April.  You know, this is a case in serious, serious trouble.  And I think the D.A. owes it to the public, he owes it to the players, he owes it to everybody, to come out and explain what it is that he has beyond what he turned over to the defense.  Now on Thursday, they‘re going to turn over more evidence...

FILAN:  Right.

ABRAMS:  ... the prosecutors, to the defense team.  Maybe they‘ve got something new.

FILAN:  Well you‘ve asked me, what else could they have? 

ABRAMS:  What else could they have?  You know, maybe some other—one of the players came forward and—but the bottom line is, that these statements, the statements she gave to the authorities, compared to the other statements that she gave to doctors and the nurse and to—and the statement given by the second stripper, they‘re all inconsistent. 

FILAN:  Let‘s take a look at what she did tell the police about her and the second stripper.  Three guys grabbed Nikki and Brett, Adam and Matt grabbed me.  They separated us at the master bedroom door while we tried to hold on to each other.  Brett, Adam and Matt took me into the bathroom.

Now let‘s also take a look at what she says—what the second dancer told the police.  Kim, who‘s also Nikki...

ABRAMS:  Yes.

FILAN:  ... stated to Investigator Himan, she was with the accuser the whole time she was there except for a  period of less than five minutes. 

ABRAMS:  And more importantly, I mean even when she—when Kim gives her written statement, the second stripper gives her written statement, she‘s not talking about—she doesn‘t corroborate any of what she said either...

FILAN:  Right.

ABRAMS:  ... to the sexual assault nurse or what she said in her statement.  I mean this directly contradicts not just the second stripper, it also contradicts much of the other evidence that we‘ve learned about in this case, and this is—I was really—after seeing this, I was really disturbed.  I mean because we keep coming out and my opinion has been up to this point, you know, look, the D.A. should come out, he should explain himself and rightly so.

You, in particularly Georgia and other guests on this show have said look, we don‘t know...

FILAN:  Right.

ABRAMS:  (UNINTELLIGIBLE).  We don‘t know if the defense is leaking things selectively.  Well now we do know. 

FILAN:  Yes...

ABRAMS:  We do know what they had at least at the time that these guys were indicted and it ain‘t much.

FILAN:  Well, he said he‘s not going to come out and speak to the public, if you want to know what he‘s got, show up in court and attend the trial. 

ABRAMS:  Yes.  Well, OK, that‘s nice and that‘s a nice sort of like you know rah-rah, sort of you know arrogant thing to say, but the bottom line is, that considering what has been turned over, I will be surprised if this case makes it to trial.

FILAN:  Let‘s bring in our panel now.  Joining us now, criminal defense attorney Yale Galanter, North Carolina defense attorney Ed West, and former federal prosecutor Georgia Goslee.  Georgia, let me start with you.

You haven‘t seen it all.  Dan has.  You heard him.  He‘s looked at her statement; it‘s very different from what she told the nurse.  It‘s very different from what Kim Roberts told police.  How can you still defend this prosecution?

GEORGIA GOSLEE, FORMER PROSECUTOR:  First of all, there is a fallacy in Dan‘s argument.  First he says...

FILAN:  He‘s not arguing.  He‘s reporting. 

GOSLEE:  He—no, he‘s arguing.  Believe me, he‘s setting forth a particular viewpoint and I would like to counter that viewpoint by saying first of all, there‘s a fallacy in Dan‘s argument, because he says if he won‘t go so far to say that she‘s a liar and that there are contradictory statements, unless Dan can show me some credentials or you Susan, that you‘re a trauma nurse or an expert, I said let it go to the trial and let them decide...

(CROSSTALK)

ABRAMS:  You know what.  That‘s a fair point.  What I probably should—what I do, do well, Georgia, is read.  I mean that‘s one thing I really can do pretty well is read, and that‘s all I did, is I read. 

GOSLEE:  That‘s fine.

ABRAMS:  I read the sexual assault nurse‘s report.

GOSLEE:  OK.

ABRAMS:  I read her statement.  I‘ve read the second stripper‘s statement.  I‘ve read all the medical reports.  I‘m not an expert, but I am a good reader, and I comprehend pretty well what I read. 

GOSLEE:  I‘m sure you‘re a bright guy, Dan...

ABRAMS:  Yes.

GOSLEE:  ... but here‘s the problem.  You are not the trier of fact, you‘re not the judge and you‘re not the jury.

ABRAMS:  That I‘m not.  That I‘m not.

GOSLEE:  And you cannot simply...

FILAN:  Georgia, he doesn‘t need to be a juror.  He looked at it for himself and what he‘s telling you, if he was a jury, this is a big N.G., not guilty.  What I‘m asking you...

GOSLEE:  Well you know what, Susan...

(CROSSTALK)

FILAN:  Georgia, hold on.

(CROSSTALK)

FILAN:  Instead of saying let it go to the jury, I‘m asking you...

(CROSSTALK)

FILAN:  ... how can this prosecutor go forward? 

GOSLEE:  I‘ll tell you why, because unless you tell me some reason other than what you believe or your judgment, you can‘t simply say, I don‘t like the way this is going, and so I think we should abort it.  That‘s not the way our...

(CROSSTALK)

FILAN:  But, when you were a prosecutor...

(CROSSTALK)

FILAN:  ... if your judgment was you didn‘t have a case...

UNIDENTIFIED MALE:  If I can interrupt, there‘s a larger point here.

FILAN:  ... did you go forward anyway, just because you were the rodeo cowgirl...

(CROSSTALK)

GOSLEE:  I‘m not the prosecutor.  Nifong‘s judgment says he has something, that‘s the only reason he‘s going forward.  His judgment.  He‘s the prosecutor. 

FILAN:  Ed West, you‘re the local guy.  What‘s going on down there?

ED WEST, NC DEFENSE ATTORNEY:  Well, here‘s—the problem is and Georgia is talking about this is he may go forward with it, but it‘s because he‘s dug himself in so much, and he‘s afraid to do anything else, but I think one of the questions that ought to be asked here is, is there a way that Mike Nifong can get out of this short of going to trial and save face.

FILAN:  Yale.

WEST:  And I think that that‘s one of the things that‘s going to be really tough and the only thing that I can come up with that I could think of is that perhaps if somehow the accuser in this case says I just don‘t want to go forward, and then he can come to the public and he can say listen, I‘ve talked to the accuser and I just don‘t want to put her through this, that will maybe allow him save some face.

GOSLEE:  Yes, but he‘s not trying to save face.  That‘s your judgment.  Again, if he was trying to save face, he has—he has ample evidence, he has an inclination to go forward. 

YALE GALANTER, CRIMINAL DEFENSE ATTORNEY:  Georgia, Georgia, he‘s got no evidence and that‘s the problem here. 

GOSLEE:  Well then guess what? 

GALANTER:  He‘s got a complaining witness...

GOSLEE:  Why is he prosecuting a case if he has no evidence? 

GALANTER:  ... who has told two different stories.

FILAN:  More than two.

GALANTER:  It occurred.  It didn‘t occur.  You know she kept flip-flopping. 

None of the evidence is consistent...

GOSLEE:  Yale...

GALANTER:  ... with a forcible rape occurring. 

GOSLEE:  ... she could have told 100 stories.

GALANTER:  And Georgia, the problem here...

GOSLEE:  It‘s up to the jury to determine what they‘re going to believe...

GALANTER:  Georgia, the problem here...

GOSLEE:  ... and what they‘re not going to believe.

GALANTER:  ... is that Dan and I have been telling you for weeks that the defense has not been spinning a story, has not been putting little snippets out. 

GOSLEE:  I‘ll never buy it, Yale.

FILAN:  Georgia, hold on.  Hold on.

GALANTER:  Now Dan has looked at all—listen, Dan has looked at all the records.  He‘s read every word of every page and all 1,300.  The most important documents, the medical records and the complaining witness‘ statements has been seen by one of the best reporters in the business, and it‘s a tough act for me to follow. 

(CROSSTALK)

GALANTER:  Just so happens to be consistent with everything I‘ve been saying. 

GOSLEE:  He‘s a reporter.

GALANTER:  He‘s got no case, Georgia. 

GOSLEE:  He‘s not a judge.  He‘s not a jury.

GALANTER:  But, what he has seen is accurate, it‘s consistent.  It‘s consistent...

GOSLEE:  I know it‘s accurate...

GALANTER:  ... with everything the defense has put in their motions, Georgia...

GOSLEE:  The problem that you have, Yale...

GALANTER:  ... and the only thing you can say, Georgia, for weeks is that there is a prosecution and he must have more.  Well, guess what.  He doesn‘t have any more...

(CROSSTALK)

FILAN:  Yale...

GALANTER:  ... and the time has come...

FILAN:  Yale...

GALANTER:  ... for him to make a public statement and drop this case. 

FILAN:  Let‘s take...

(CROSSTALK)

FILAN:  Georgia, told on a second.  Let‘s just take a look at this.  This is another one of those inconsistencies that Dan saw with his own eyes.  Take a listen to this. 

This is the accuser‘s statement to the police.  We went into the bathroom and shut the door.  Dan—not Dan Abrams, somebody else at the party—

Dan knocked on the door and asked if we wanted a drink.  We said yes.  He gave us a drink and we continued to talk.

Now this is the second dancer‘s statement.  Now, listen to how it differs.  There was a knock on the door and we were handed two drinks of equal amounts.  We did sip the drinks but the accuser‘s cup fell into the sink.  We began our show.  The accuser began showing signs of intoxication at this point. 

Dan Abrams, was she drunk?  She wasn‘t drunk.  She was drinking.  She wasn‘t drinking.

ABRAMS:  Look, my understanding from the accuser‘s statement is that she was coherent.  So there‘s no allegation that she forgot portions of the evening.  She doesn‘t say I must have been drugged; she has a very coherent story that she claims happened. 

GOSLEE:  I don‘t think it was coherent.

ABRAMS:  Well, it may not be coherent, but it‘s...

GOSLEE:  Well first all, you‘ve got Kim who says...

ABRAMS:  Yes.  Look...

GOSLEE:  ... she was not intoxicated.

ABRAMS:  Fair enough.  Fair enough. 

(CROSSTALK)

GOSLEE:  She had taken Flexeril...

ABRAMS:  OK.

GOSLEE:  ... which you talked about.  Susan said it was her own perception...

ABRAMS:  You know what?  You‘re right.

GOSLEE:  ... a few weeks ago. 

ABRAMS:  She may have been...

GOSLEE:  So she was clearly not coherent.

ABRAMS:  She may have been totally wasted, you may be right, but I don‘t know that that exactly helps her cause here, but she seems to remember, she claims, everything that happened, every detail.  Who went where, who was standing at what point, where exactly the other stripper was, and therefore she‘s not going to be saying oh, you know what, I was so drugged that I can‘t remember anything.  I mean that‘s just not going to be the case. 

FILAN:  All right.  Everyone is going to stick around.  We‘re going to keep our panel.  Coming up, Nifong breaks his silence for the first time in weeks, standing by the case.  We‘ll tell you what he says.

And he may have won a difficult primary, but the race isn‘t over.  He‘s got a new opponent. 

And U.S. troops launching raids in Iraq, trying to find two missing American soldiers.  A group with links to al Qaeda claims they kidnapped the Americans, so how are we going to find them and save them?

Plus, new details in the case of a man charged with aiding his wife‘s suicide after she drove a minivan off a cliff with her kids inside.  It turns out his wife just found out he was having an affair. 

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

(COMMERCIAL BREAK)

FILAN:  We‘re back with more on the Duke lacrosse rape case where District Attorney Mike Nifong is speaking out.  This week‘s “Newsweek” magazine has an in-depth article doing what we too have done on this show, pointing out all the holes in the prosecution.  The only difference is “Newsweek” got the D.A. to respond. 

All of this while we‘re learning that Nifong will now be facing a Republican opponent in his November election, the Durham Republican Party Chairman Steve Monks.  My panel is back with me—Dan Abrams, criminal defense attorney Yale Galanter, North Carolina defense attorney Ed West and former federal prosecutor Georgia Goslee. 

Take a look at what the D.A., Nifong, had to say when he was asked for a comment in this case.

None of the facts I know at this time, indeed, none of the evidence I have seen from any source has changed the opinion that I expressed initially.  I have seen quite a bit of media speculation and it‘s even worst on the blogs that either starts from a faulty premise or builds to a demonstrably false conclusion.  That‘s not my fault, although some of your colleagues have acted as it were.  The only people I have to persuade will be the 12 sitting on the jury and if you want to know how I‘m going to do that, you will need to attend the trial.

Dan, do you want a front row seat at this trial? 

ABRAMS:  I mean sure.  But I mean the problem is that he‘s not dealing with the issue of prosecutorial discretion at all.  He‘s basically saying, I made a decision, I decided to move forward, I haven‘t seen anything that changes my mind, I‘m not going to defend myself.  You know what, he‘s got to defend himself.  I have now—again, I have now seen all of the discovery in this case, everything he handed over to the defense presumably which led him to indict in this case.  For him to claim, oh, it‘s media speculation, blah, blah, blah, I now know as much about this case as anyone except for him. 

FILAN:  Exactly. 

ABRAMS:  And I‘m telling you, from everything that I‘ve seen, he has absolutely no right to come forward and say oh, it‘s just the media, the darn media is being unfair to me again. 

FILAN:  Right.

ABRAMS:  The bottom line is I‘ve never seen a case like this...

FILAN:  Right.

ABRAMS:  ... and I think that he owes the public, forget the media, the public the people of the state of North Carolina who he is representing an explanation.

FILAN:  Right.  Yale, I mean up until now, I‘ve always said, how do I know it isn‘t defense spin, it‘s just in their motions, I want to see the discovery for myself.  I want to know what her statement says.  I want to know what the sexual assault nurse‘s statement says. 

I haven‘t seen it with my own eyes, but Dan has and that‘s good enough for me.  Why do you think Nifong is continuing to say, hey, it‘s a great case, nothing has changed, it‘s all good.

GALANTER:  He‘s totally backed himself into a corner, Susan.  He made a number of public statements.  We now know that there are some serious questions about the timing of those statements, whether we‘re shooting from the hip or whether or not he really had the reports, you know, Mike Nifong is a political animal and I‘m not saying that in a bad way.  I mean he did and said a lot of things to get elected.  Now that he‘s been elected, he‘s facing another challenge. 

He‘s got to stick to his guns, because he is the one that‘s been the driving force.  Remember, it‘s not the complaining witness, it‘s not the complaining witness‘ family that‘s giving interviews saying she‘s been hurt, she‘s been traumatized, she wants to pursue this prosecution.  Everything that we‘ve heard about this case has come from Nifong.  He‘s the one that keeps saying a rape occurred, the injuries are consistent, and we in the media and the analysts and the defense lawyers, once they look at the records, all say you know what, Mike, that‘s just not what occurred.  You know the nurses, the doctors, the second stripper, nobody is telling a consistent story with what you‘ve been telling the media or what the complaining witness told you. 

(CROSSTALK)

FILAN:  And that‘s the problem.

(CROSSTALK)

FILAN:  When you prosecute a rape case, the two things that you‘re going to always look for are consistency and corroboration and in this case we‘ve got neither.  Ed, I want to ask you about this new opponent that‘s jumping into the race, maybe going to unseat Nifong.  Take a listen to this.

People feel Nifong totally sold out to the people of Durham.  They don‘t feel comfortable with this case.  They feel like it was a sellout.  That he pandered to the people of Durham.  What troubles people here is that it appears that Mr. Nifong exercised poor judgment here.

That‘s from Steve Monks.  He‘s going to run against Mike Nifong now. 

What‘s the local flavor down there in term of this D.A. getting unseated? 

What are Monks‘ chances? 

WEST:  Well I mean I think that‘s one of the reasons I raised the point earlier about can he save face because I think he really does have a problem here.  Now nobody is going to suggest that you know a late candidate or a write-in candidacy has been proposed by I think another person.  So nobody is suggesting that that‘s an easy thing to do, but this is extraordinary, and the people in Durham County are absolutely furious about it...

FILAN:  Have they lost confidence in Nifong?  Are they upset about this case?  Do they think that perhaps we‘ve got innocent boys indicted?

WEST:  Absolutely.  And I think that there are some people who like I said, are angry enough and upset about this that I think that they do want to be heard.  Now that‘s not to take away from the fact that there certainly are folks who are backing the current district attorney and the accuser in this case.  But to say that there aren‘t people who are very upset about this, I think says a lot, and I think that there are going to be a lot more attention to this coming up, and that‘s why I said, I think Mike Nifong, if he ever wakes up from what is going on has got to try to figure out a way to get out of this.

FILAN:  Georgia...

(CROSSTALK)

FILAN:  ... extraordinary measures, what do you think? 

GOSLEE:  Well I think Nifong is hardly asleep and when you say people in Durham—I talk to people—lots of people almost daily from Durham and they are not outraged.  They are not upset.  This case is splitting. 

WEST:  I beg to differ.

GOSLEE:  You have some people in Durham...

GOSLEE:  Well you can beg to differ.

WEST:  Georgia, I beg to differ.

GOSLEE:  You can beg to differ.  My sources tell me that the people in Durham are not upset.  You have a segment of the people who are upset, but you also have a large number of people who are very well satisfied with Nifong.

WEST:  Again, I beg to differ. 

GOSLEE:  Beg to differ. 

WEST:  I think that there are folks who are very upset about this and I think it goes beyond that.  I think that there are people that feel like Duke has been tarnished.  I think that there are people who feel like the community has been tarnished. 

GOSLEE:  What about the victim?  Has she been tarnished?

WEST:  And that Mike Nifong is responsible for a lot of this, and it‘s outrageous for Nifong to say that this has all been about spin.  This is a man who gave 70 -- I think 72 interviews when this first happened...

FILAN:  Ed...

WEST:  ... called these children hooligans. 

FILAN:  Ed, is he coming in as a write-in candidate?  Procedurally, this is a little bit odd to us.  Is that how he does it?

WEST:  Well, there are actually a couple of different things and I don‘t want to pretend that I‘m an expert on election law in North Carolina, but I think there are two different ways that this might be able to be going after.  One is a petition to actually have your name on the ballot and that would certainly be the preferable thing if you were running, but then there is also just the idea that someone can write in someone‘s name, anyone can do that and obviously it would be preferable if they are on the ballot, but again I want to be very careful, I am not an expert on election law in North Carolina, don‘t pretend to be.

FILAN:  Right.  Because he‘s coming in as a Republican.  Nifong only won the Democratic primary. 

WEST:  That‘s exactly...

(CROSSTALK)

WEST:  That‘s exactly right and of course...

FILAN:  Let me give Dan the last word on this.  Dan, do you think this D.A. might drop these charges any time soon?

ABRAMS:  No.  I just—I don‘t...

GOSLEE:  You‘re correct, Dan.

FILAN:  Do you think you‘re staring bold face at a case of pure injustice?

ABRAMS:  Look, based on what I‘ve seen, there is no way that these men should have been indicted. 

GOSLEE:  If you can‘t call her a liar, Dan...

FILAN:  We‘ve got to wrap.  Dan Abrams...

GOSLEE:  You said you can‘t call her a liar.

FILAN:  ... Yale Galanter...

ABRAMS:  What do you care if I call her a liar or not?

GALANTER:  Thanks, Susan.

ABRAMS:  What do you care if I call...

GOSLEE:  You can‘t call her a liar—you said if you can‘t call her a liar, then maybe there‘s some credibility...

ABRAMS:  No...

GOSLEE:  ... to what she‘s saying even though she‘s inconsistent...

ABRAMS:  Gosh, you know is that the standard that prosecutors use, the maybe possibly she‘s telling the truth standard? 

(CROSSTALK)

ABRAMS:  Because I always thought it was higher than that. 

GOSLEE:  It is very much higher than that... 

ABRAMS:  Oh, OK.

GOSLEE:  ... Dan, but he‘s the prosecutor and it‘s his judgment, not yours.

ABRAMS:  I just wanted to make sure.  OK.  No, I understand.  But you were saying that the issue of liar...

GOSLEE:  Well, you said you can‘t call the girl a liar...

FILAN:  Well at least we got...

(CROSSTALK)

FILAN:  We‘ve got to wrap, but...

(CROSSTALK)

FILAN:  We‘ve got to wrap, but finally we got it where it is in fact the prosecutor‘s judgment call and if this person isn‘t credible, he does have the discretion to drop it.  Dan Abrams, Yale Galanter, Ed West, Georgia Goslee...

GALANTER:  Thanks, Susan.

FILAN:  ... thanks so much.  We‘re going to have much more of our exclusive look at the prosecution‘s discovery tomorrow, including...

(AUDIO GAP)

FILAN:  ... left the party.  And coming up tonight at 10:00 Eastern on MSNBC, Rita Cosby interviews Steve Monks, the Republican now running against Mike Nifong. 

Coming up, a group linked to al Qaeda says it kidnapped two U.S.  soldiers missing in Iraq, a massive search is underway. 

And a nanny jailed for child abuse is suing the company that made the camera that caught her in an act that‘s clear she never did.

(COMMERCIAL BREAK)

(NEWS BREAK)

FILAN:  They‘re listed as duty status, whereabouts unknown, two U.S.  Army PFCs, Kristian Menchaca of Houston, Texas, and Thomas Tucker of Madras, Oregon, both allegedly kidnapped by a group linked to al Qaeda, the Mujahedeen Shura Council.  Both have been missing since insurgents attacked their checkpoint near the town of Yusufiya, south of Baghdad Friday.  A third soldier was killed in that action.  Tucker and Menchaca haven‘t been seen since.  Major General William Caldwell is a U.S. military spokesman in Iraq.

(BEGIN VIDEO CLIP) 

MAJOR GEN. WILLIAM CALDWELL, U.S. MILITARY SPOKESMAN:  We are using all available assets, coalition and Iraqi, to find our soldiers, and will not stop looking until we find them.  We will never stop looking for our service members until their status is definitively determined.  We continue to pray for their safe return. 

(END VIDEO CLIP)

FILAN:  As many as 8,000 U.S. and Iraqi troops are taking part in the search.  So far, seven American soldiers have been hurt, along with three insurgents.  Lieutenant Colonel Rick Francona is an MSNBC military analyst and a retired Air Force intelligence officer with long experience in the Middle East and...

(AUDIO GAP)

FILAN:  ... find these guys and how do we bring them home? 

LT. COL. RICK FRANCONA, U.S. AIR FORCE (RET.):  Well, it‘s going to be very, very difficult.  I mean three days have passed...

(AUDIO GAP)

FRANCONA:  ... every minute, every hour, every day that you go beyond the point of incident, that search area has to expand, because you have to figure they‘re trying to move these people into an area under which they have control and I think we have to assume that they‘ve been taken by somebody.  Obviously they‘re not getting any cooperation from the locals, when we take casualties looking for these guys.

FILAN:  How do we know it is al Qaeda as they‘ve claimed?

FRANCONA:  Well, we don‘t, but there‘s only that one claim that‘s been unverified, and I don‘t think we‘re going to accept their claim until we see a videotape, some proof of life, some proof that they were actually seized by an al Qaeda group and this Mujahedeen Shura...

(AUDIO GAP)

FRANCONA:  ... organization.  They‘ve in the past said they‘ve wanted to kidnap American soldiers.  They know the psychological impact this has on the American public.

FILAN:  Why are they doing it for the psychological impact?  I mean...

FRANCONA:  They know that...

(AUDIO GAP)

FRANCONA:  ... the U.S. militarily.  They generally lose a lot of people, so they‘re trying to do the things that they know work.  They know roadside bombs work.  They know IEDs work.  They know suicide attacks work and they know that holding Americans hostage really plays on the public opinion.  They know they can‘t win the war there, they have to win the war here. 

FILAN:  Take a look at the statement from the family of PFC Thomas Tucker.  In a recent telephone message that remains on their telephone answering machine, Thomas sent the following greeting.  Be proud of me, mom.  I‘m defending my country.  Tell sis and my nephews hello for me.  I‘m OK.  I‘m on my way.

FRANCONA:  This is very typical of the attitude that you see of the young soldiers over there.  This is an all volunteer force.  They‘ve all signed up for this.  They‘re all volunteers.  They‘re over there.  The morale when you go and talk to these soldiers is...

(AUDIO GAP)

FRANCONA:  ... wounded, their first...

(AUDIO GAP)

FRANCONA:  ... that‘s the kind of commitment we see, and now on the other side of that, when you play something like that, that plays right into the psychological impact this has.

FILAN:  It‘s absolutely heartbreaking.  Lieutenant Colonel Rick Francona, thanks so much. 

FRANCONA:  Sure.

FILAN:  Coming up, a mother drives her car off a cliff with her two children in the back...

(AUDIO GAP)

FILAN:  ... now it turns out she just found out he was having an affair. 

We‘ve got all the details coming up. 

And one nanny spent more than two years in jail because a video showed her shaking a baby, but we now know the video wasn‘t quite what it seemed.  The charges were dropped, but now she‘s suing the nanny cam company.

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:  Coming up, new details in the case of a man charged with aiding his wife‘s suicide after she drove a minivan off a cliff with her kids inside.  It turns out his wife just found out he was having an affair.

(COMMERCIAL BREAK)

FILAN:  We‘ve got an update on a tragic story out of New York.  It‘s about the family that went on a trip to a state park, but when the husband stepped out of their minivan to allegedly take a picture of the view, the wife who was reportedly suicidal, put the car in drive, locked the doors, and drove off a 300-foot cliff with her 3 and 5-year-old daughters in the back seat.  The children miraculously survived, but the wife did not and now authorities are charging the husband, Victor Han with promoting a suicide attempt.  We‘re now learning about allegations Mr. Han had had an affair with another woman and a mysterious phone call Mrs. Han received just before she killed herself. 

“Daily News” reporter Maureen Seaberg is with us.  She‘s been on this story since the start and she has all those details for us.  Also joining me is former assistant Bronx district attorney, author of “Bronx D.A.: True Stories From the Sex Crimes and Domestic Violence Unit”, Sarena Straus. 

Maureen, let me start with you.  I understand you just learned some new information about what‘s going on with Victor Han‘s case.  Can you bring us up-to-date? 

MAUREEN SEABERG, “DAILY NEWS” REPORTER:  Yes we have.  We have confirmed that there was an extramarital affair.  Victor gave this statement to police in Rockland County and we interviewed neighbors near his alleged mistress‘ home and they did see Victor on a regular basis, so it seems that his wife had something to be upset about. 

FILAN:  What‘s with the cell phone call that she allegedly got just before she plunged to her death? 

SEABERG:  The lovely people at the church the family attended in Flushing, the Korean American church, tell us that that is the case, that she got a phone call as they were ascending Bear Mountain and it was something so horrible that she was in this frame of mind when Victor pulled over the van. 

FILAN:  And is it true that he‘s trying to make bail now?

SEABERG:  He is.  We have a team in Rockland County, his sister is there and it‘s believed that he will make bail today and return home to Staten Island. 

FILAN:  And does he also claim that he‘s now going to bring a lawsuit against the police for defamation? 

SEABERG:  Yes, you are right.  There are two problems he has with...

(AUDIO GAP)

SEABERG:  ... they have defamed him.  I think he‘s upset about some of the salacious details that have emerged.  Number two...

FILAN:  Wait, he‘s upset that his wife killed herself.  He was having the affair and he‘s upset? 

SEABERG:  Yes, apparently his private life is now being read across the nation and seen on your show, and he‘s upset about that, and he also has a problem with the fact that the park‘s police detained him for 14 hours without food and water... 

FILAN:  Maureen, I‘m going to go to Sarena.  Sarena, you‘re a prosecutor, a former prosecutor.  You know the law.  You know the law of New York.  I want to put up the language of this statute.  I want you to take a look at this and I want you to talk to us about this.

In New York under the penal code a person is guilty of promoting a suicide attempt when he intentionally causes or aides another person to attempt suicide.  It‘s a class E felony. 

Do you think the prosecutor can prove this case?  Do you think they were right to bring this case?

SARENA STRAUS, FORMER BRONX, NY PROSECUTOR:  Well, unless the prosecution or the police know something at this point that the public doesn‘t know, it‘s hard to understand how they‘re going to make these charges stick.  It‘s pretty unprecedented to charge a civilian with this type of crime.  These crimes are more often heard, for example, assisted suicides with doctors or something like that, but against a civilian, I‘ve never heard of a charge like that being brought and how are they going to prove this? 

FILAN:  Take a look at what the park police said.  This is their statement.

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 earlier threatened to harm herself and their two children.

Now presumably if park police had interviewed him for 10, 12, 14 hours and they‘re claiming that they knew his state of mind.  I think one can infer that they get their information from him.  Let‘s say he told police, I knew she was suicidal.  I was having an affair.  She just found out.  She told me she was going to kill herself and I said yes, yes, go ahead, he gets out and over the cliff she goes.  Does that change your mind? 

STRAUS:  It‘s possible that that happened and I think that they would have to have something that strong to be able to sustain these charges, but even a prosecutor in Rockland County has come forward and said he doesn‘t know how they‘re going to sustain these charges and right now, this is just what he was arraigned for.  He hasn‘t been indicted yet and until we know really what he was telling the police, how they came up with these charges, it‘s pretty hard to say how they‘re going to sustain this. 

FILAN:  What about the charges against him with respect to the children, you know, child endangerment, what do you think about those charges? 

STRAUS:  I think it‘s setting an interesting precedent.  You know once again, if he actively did something to try to help his wife commit suicide, say he told her, go ahead, take the van off the side of the cliff, I‘ll help you push it and the kids are in the car, then indeed why isn‘t he charged with attempted murder of his children...

FILAN:  And murder of his wife. 

STRAUS:  And murder of his wife, exactly.  On the other hand, if he didn‘t actively do something to try to help her commit suicide, he didn‘t know this was going to happen and the kids are in the car, are they trying to set a precedent that if one spouse knows that his spouse is suicidal that they have an obligation to take the children away, that they would know that the person is going to act on this.  There have been statements that are brought out that he made where he said he didn‘t think his wife would actually harm herself or harm herself in the presence of the children, so there‘s a lot of conflicting information coming out here. 

FILAN:  Well, this is a most unusual case, indeed a most interesting case. 

Thank you so much Sarena. 

STRAUS:  Thank you.

FILAN:  Thank you so much Maureen for joining us. 

SEABERG:  Thank you.

FILAN:  Coming up, nanny cam footage put this nanny in jail, but now the courts agree the video is missing a few frames and the nanny is fighting back.  She wants the video company to pay.  Her lawyer tells us why, that‘s up next. 

And many of you are writing in taking sides in the Duke alleged rape investigation.  I read your e-mails.  I read them all.  I‘ll play some of them today.  That‘s coming up. 

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

Police need your help finding Ruben Torres.  He‘s 53 years old, five-four, weighs 140 pounds.  He was convicted of two counts of first-degree sexual abuse and he hasn‘t registered his address with the state.  If you have any information on his whereabouts, please call the West Virginia State Police at 304-746-2133.  We‘ll be right back.

(COMMERCIAL BREAK)

FILAN:  The nanny in this video spent more than two years in jail charged with eight counts of child abuse that could have landed her in prison for up to 40 years.  But after 29 months, Claudia Muro was released and all the charges were dropped when video experts concluded the nanny cam footage that led to her arrest was unreliable.  The jarring motions that appear to be abuse are actually the results of missing frames in the video.  Well, now Muro is suing not the state for keeping her in jail for years, but the nanny cam company saying it should have warned customers that the camera had a tendency to distort reality.

Joining me now is Claudia Muro‘s attorney, Allison Gilman and civil attorney Joe Bodiford.  Allison, let me start with you.  Why is Claudia suing the camera company?

ALLISON GILMAN, ATTORNEY FOR CLAUDIA MURO:  Well, the camera company is the one that actually initiated this entire motion to be in progress.  They put the camera out there.  They told parents, use this type of machinery, and you can see what goes on in your home while you are at work and rely on it.  But the machine itself is a time lapse recording machine.  It does not accurately record movement.  Therefore what parents are watching in the care of their child is actually inaccurate, and they are telling them rely on this.  This is what‘s going on in your home while you‘re at work.  So to me they are the ones that put it out there for this particular use, and in addition, they also didn‘t place any type of warning.  If you‘re going to use it for this purpose, know this.  Be aware of this...

(AUDIO GAP)

GILMAN:  ... are larger than they appear or smaller than they appear. 

They don‘t...

(AUDIO GAP)

GILMAN:  ... and that‘s wrong.

FILAN:  How can the camera company be liable for something that the state, the prosecutors relied on to charge this woman and imprison her?  How were they suppose to know that could happen? 

JOE BODIFORD, CIVIL ATTORNEY:  Well, I don‘t think they are going to be liable.  First of all, the camera had nothing to do with this decision to prosecute or not to prosecute.  The manufacturers and the installers did not have anything to do with it.  I think that the video speaks for itself.  I think that you don‘t see much of a lapse at a time.  Clearly, it‘s kind of like acclamation.  There‘s a little bit of stop and go, but that video speaks for itself.  Look at that...

FILAN:  Oh, well don‘t go there.  They dropped the charges.  She was essentially cleared.  I mean let‘s not...

BODIFORD:  It doesn‘t matter. 

(CROSSTALK)

BODIFORD:  You know what?  This is the same prosecutor‘s office I believe that let Rush Limbaugh jerk them all over the appellate courts of Florida and then didn‘t do anything about it.  But any event, you know, we all have a duty to act reasonably to each other and the video camera company or the security company, Tyco, would have a duty to act reasonably if they were asked by the prosecution is this real time.

Now, if they fibbed about that or if they fudged about that and led the prosecutors to believe that this was second-for-second, absolutely continuous video and that caused them to have some sort of you know whatever about their prosecution, then Tyco could be liable for perhaps in lying...

FILAN:  But Joe...

BODIFORD:  ... but other than that there is nothing wrong with this video camera.  This is what it‘s there for.  I mean if you saw these videos, wouldn‘t you rush home and find out what the heck was going on to protect your child?  Absolutely.

FILAN:  Joe, why not put a warning?  Why not say parents this isn‘t real time.  You‘re going to see a distorted video.  You can‘t rely on it verbatim frame-by-frame?  Why not warn parents who are going to rush home and do exactly as you say when it turns out not to be so?

BODIFORD:  Well, I don‘t understand why we would have to warn parents when the idea is for them to be protecting their children.  I mean it doesn‘t matter.  If they have an ability to have an eyeball on their children at all times, parents are going to take advantage of that whether it‘s frame-for-frame, second-per-second or not, just to have an eyeball on what some possible whacko could be doing to their kid, so I think they don‘t have any duty to warn anybody. 

The law is about foreseeability.  We have only can they prove a negligence case if it was foreseeable that this lady will get locked up because there wasn‘t a warning.  That is not what the law says about foreseeability as it would be used (UNINTELLIGIBLE) quotations there.

FILAN:  Allison...

BODIFORD:  So why not put—it doesn‘t matter.  They don‘t have a duty to do that.  They don‘t have a legal duty to do that.

FILAN:  Allison, isn‘t it reasonably...

(CROSSTALK)

FILAN:  ... foreseeable if Tyco says to parents rely on this machine.  This will be your eyeball at home.  This will tell you what is going on when you‘re not there to watch your own kid.  Parents rely on that and it turns out this is actually faulty because you can‘t rely on it as if it were frame-by-frame.  It‘s time delayed, so it looked like she was shaking the baby, but she wasn‘t.

GILMAN:  That‘s exactly what I‘m saying.  I mean they are selling this product to parents, to say put this in your home and you don‘t have to change the little videotape.  You can hold two weeks‘ worth of images in the same space that a two-hour videotape would hold and look at this wonderful thing that you can do, because you are losing time, you‘re losing frames, and to say they don‘t have to put a warning to tell parents this isn‘t accurate, you should perhaps look for...

(AUDIO GAP)

GILMAN:  ... these parents had no idea what was happening.  They relied on those images.  The prosecutors relied on those images.  The police relied on those images.  Nobody did anything...

BODIFORD:  But Allison...

(CROSSTALK)

BODIFORD:  Allison...

GILMAN:  ... believing what we see.

FILAN:  Allison, Joe...

BODIFORD:  Allison...

(CROSSTALK)

FILAN:  Allison, Joe, hold on a second.

(CROSSTALK)

BODIFORD:  Look at the video.

FILAN:  Take a look.

BODIFORD:  Look where the head is at.

FILAN:  This is what Tyco says.  Take a look at this.

We feel this case is without merit.  We stand behind our product for its intended use.  Our systems perform according to widely accepted and deployed CCTV standards.

BODIFORD:  Absolutely. 

FILAN:  Joe, why is that a decent defense? 

BODIFORD:  Look—well hold on a second.  Look at that video where that kid‘s head is and that‘s what got captured.

GILMAN:  Oh, I‘ve seen the video, Joe...

BODIFORD:  That‘s what got captured.

GILMAN:  Trust me. 

BODIFORD:  What was this woman doing to this kid on the parts that we didn‘t see?  That‘s what scares the heck out of me.  So we just got...

FILAN:  Joe, you really...

BODIFORD:  I mean this is bad stuff.  I think that Tyco‘s product is a good product.  I think that it is affordable and it allows people who can‘t afford these you know hundreds of thousands of dollars security systems to be able to have something to help protect their child when they can‘t be there.  Look at that stuff...

FILAN:  Allison...

(CROSSTALK)

FILAN:  Allison, real quick...

(CROSSTALK)

FILAN:  Allison, why is she suing Tyco?  Why isn‘t she suing the state? 

Real quick.

GILMAN:  We put everybody on notice.  Real quick...

(AUDIO GAP)

GILMAN:  ... the machine out to be used.  They are the ones that started this ball rolling. 

FILAN:  Allison, Joe, thanks so much for joining us.  A very spirited debate.

BODIFORD:  Good luck.

FILAN:  Coming up, a lot of people saying we are just buying into defense spin in the Duke lacrosse rape case.  Well I disagree.  Your e-mails are next. 

(COMMERCIAL BREAK)

FILAN:  Time now for “Your Rebuttal”.  Many of you have taken sides in the Duke case in which three lacrosse players have been charged with raping a stripper they hired for a private party.

Sharon Soderman from Florida, “This show is so against Mike Nifong it‘s amazing.  This is from information gleaned from the defense.  It is obvious this is the wealthy white upper crust of the city rallying around the suspects and the college.  Everyone hates Nifong because he‘s sticking to the prosecution of this case, which is the black side.”

There is no hate here, only a search for the truth.  We may have gotten information from the defense, but the prosecutor has a duty to turn over all the evidence to the defense.  And now we‘ve seen this for ourselves with our own eyes.  This isn‘t about race.  This isn‘t about class.  This is a search for the truth.

Carole McDonnell from Peekskill, New York, “If the boys are not given their day in court, they will not be truly exonerated by the court system.  I for one and many African Americans like myself will totally be convinced they got away with rape.  Certainly black folks over the centuries have been wrongly accused and no one ever got the court system to not go ahead with the case because the lives of the accused would be interrupted.  If the court trial doesn‘t go ahead, I for one will see this as a very racist class issue.”  Carole, this is not about race. 

Peggy Fischer from Newport, North Carolina, “Finally, someone brought up the fact that she may have taken a muscle relaxer that day, which combined with beer and liquor would give her the drunk appearance she had.  Why did she bring this charge?  Perhaps to avoid a drunken disorderly conduct charge, which could have meant a big fine or jail time.  I believe the accuser will say closer to the trial she‘s too afraid to testify given the D.A. a reason to drop the case.  They will walk away free and leave three innocent students behind.”  Well, if she lied, she should be prosecuted. 

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

That does it for us.  Tune in tomorrow.  We‘ll have one of our exclusive looks at the prosecution‘s evidence in the Duke lacrosse rape case.

Coming up next, “HARDBALL” with Chris Matthews.  Bye-bye.

END

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END   

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