updated 6/21/2006 11:00:42 AM ET 2006-06-21T15:00:42

Guests: Karen Coleman, Norman Early, Yale Galanter, Eileen Gallagher, Mark Schneider, Elizabeth Kelley, Leslie Crocker Snyder, Steve Monks, Jack Jacobs, Eddie Jordan

SUSAN FILAN, GUEST HOST:  Coming up, more exclusive details in the Duke lacrosse rape case.  We‘re the only ones who have seen the evidence the D.A. turned over to the defense and we talk to the man running against D.A. Mike Nifong. 

The program about justice starts now. 

Hi, everyone.  I‘m Susan Filan.  First up on the docket, more of our exclusive look at the 1,278 pages of evidence the prosecutor in the Duke lacrosse rape investigation turned over to the defense.  Dan Abrams saw it all and I finally got to see what I‘ve been asking to see for months, the accuser‘s statement to the police and to the sexual assault nurse.  I got to see that report.  And now, I have serious doubts about whether this case can be proved at all. 

Joining me now, criminal defense attorney Yale Galanter, former Denver district attorney Norman Early and sexual assault forensic nurse Karen Coleman.  Thank you for joining us, panel.

Karen, let me start with you.  What is most striking to me are the inconsistencies between what this alleged victim told the police and what she told the sexual assault nurse.  And I‘m the first person to understand how difficult it is for a rape victim to tell their story.  I know there are memory lapses, I understand that, but to me, this seems different.  Can you comment on that? 

KAREN COLEMAN, SEXUAL ASSAULT FORENSIC NURSE:  Well, what I think we need to remember is that all patients react differently to trauma.  Most of my patients have described being raped as a life-threatening event, so sometimes there are a lot of details that are not told to the medical person.  That might be revealed at a later date or just the opposite.  They may have told details to the medical person, which they then recant at a later date.

FILAN:  What about, though, when the story is so very, very different?  For example, the accuser tells the police that three guys grabbed Nikki, that‘s the other exotic dancer.  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.  That‘s what she told police. 

But Karen, what she told the nurse, take a look at this.  She said to the nurse, Brett came out to the car and spoke to Nikki and she said get her out of her.  Brett was carrying me on one side, Nikki on the other side.  I kept telling them no.  So in one version, she‘s in the house, being separated from the other dancer, taken into the bathroom and in her other version, Nikki, the other dancer and one of the guys are actually carrying her back into the house against her will.  That doesn‘t sound like memory loss.  That sounds like two different stories, two different incidences. 

COLEMAN:  Well, I don‘t have any firsthand knowledge of the case, but it is not unusual for stories to change, which is why as a forensic nurse, I get more involved in asking detailed questions as to what exactly happened, what part of what person‘s body touched the other, et cetera.  Because that‘s really where my focus is.  And then this way I‘m very careful that what I document couldn‘t possibly come back to cause a problem at a future date.

FILAN:  Let me bottom line you.  I don‘t know if you can answer this, but do you get a gut—can you tell when someone is telling you the truth and when someone isn‘t?

COLEMAN:  I wish I was good at that.  To be honest with you, I really can‘t.  But what I know is as a nurse, if my patient walks in the door and tells me she has a stomachache, then there were certain things I would do.  If the patient walks in the door and tell me she was raped, then that sets off other set of circumstances and things that I would do.  And I try not to worry about proving or disproving, because that‘s not my job.

FILAN:  Karen, as a prosecutor what I‘m looking for are consistency and corroboration.  Now if I got a report from a nurse that contradicted the statement to the police and didn‘t corroborate whatsoever what she said happened, it would trouble me. 

Norm, let me ask you.  I want to show you specifically—again, I want you to take a listen.  This is another contradiction that we have, and it has to do with the money.  We‘re going to five and six.  This has to do with the money.

The accuser said Brett asked Nikki for a threesome with me.  The nurse asks what was the response?  The accuser says Nikki said—this is the other exotic dancer—Nikki said girl are you down?  I said no.  I want to go home and see my kids.  She said we need to stay and make some money.  I wanted to leave.  Something didn‘t feel right. 

OK, now her other statement, this is the other dancer now, this statement is going to completely contradict what the alleged victim says. 

She didn‘t have the bag I saw her come with and I asked her if she had the most important thing, her money.  The accuser told me that we should go back into the house because there was more money to be made.

If she was raped in that house, why would she go back in trying to get more, Norm? 

NORMAN EARLY, FORMER DENVER DISTRICT ATTORNEY:  Susan, there are a couple of things that are very apparent to me.  Number one, when she was talking to the police, at least at one point, she was talking to an officer that she did not have a lot of rapport with, someone that she didn‘t feel comfortable and telling her story to, and someone who she eventually said I‘m not going to talk to you anymore. 

I think she probably felt a lot more comfortable talking to the woman who was the nurse.  In addition to that, when I look at a statement as a prosecutor, I look for consistencies.  I think Dan, when he looked at these statements, was looking for inconsistencies.  He was looking for the things that tended to contradict other things.  Now you read a portion of her statement earlier, two different things and to me it didn‘t sound like it was necessarily an inconsistent event.  It sounded like it was two different portions of the same event. 

And that‘s the way I would look at this, to see if I can understand what she‘s trying to convey in its totality.  So in order to see whether or not this is a consistent statement, I would have to see the whole thing and I would also have to see all of what she said to other people in order to piece it together for me to see where the truth rings.  Now Mike Nifong, who is the elected district attorney there, who has taken an oath to uphold the Constitution in his state has looked at this thing in its entirety and according to his oath, he says I believe this happened.

FILAN:  Yale, I felt exactly as Norm did.  I said the same thing.  I want to see this for myself in its entirety.  I don‘t want bits and pieces taken out.  I don‘t want them lifted out by the defense and I don‘t want to read about them as argument in motions.  My heart and soul is invested in this criminal justice system.  I love this criminal justice system.  I love this country.  I‘m the last person in the world that was going to read this statement looking for inconsistencies.  And I‘ve got to tell you my heart broke when I saw things like this.  Take a look at this, Yale. 

We‘ve got the accuser‘s statement to the police saying Brett, Adam and Matt took me into the bathroom while the other guys were watching television and they closed the door slightly.  OK.  Now, to the nurse is what the accuser says.

She says the door was locked and they said I could not leave.  I said I wanted to leave, but they said I couldn‘t.  Nikki was on the other side of the door.  Well, if the door was only slightly open, she could have left.  If the door is only slightly open Nikki could have come back in. 

If the door was locked it‘s something entirely different.  To me, that‘s not memory lapse.  That‘s not I don‘t feel comfortable talking to you.  I feel more comfortable talking to you.  That‘s almost like two different stories from two different people—Yale. 

YALE GALANTER, CRIMINAL DEFENSE ATTORNEY:  Well, it is two different stories.  And Susan, it took me three months to convince you that these boys were probably innocent.  The D.A. had nothing.  And now that you‘re finally seen her statement and some of the medical records you agree with what I‘ve been saying all along.  And the truth is what Norm is saying is also entirely correct. 

As prosecutors, I‘m a former prosecutor, Norm is a prosecutor, you were a former prosecutor, we always should look for consistencies in what our complaining witness is telling us.  Does it conform with what other people saw and heard?  Does it conform with the physical evidence?  The problem with this case and it‘s been this way all along, that nothing that the complaining witness has said, even if you take her isolated statements and don‘t compare them with her other statements, matches with either what the second dancer said, the 47 lacrosse players said, or the physical evidence that she claims should be there. 

Just to give you an example, I was choked.  There‘s no evidence of choking from the medical exam.  I was pushed.  I was kicked.  There are no abrasions.  There are no contusions.  There are no bruises on her body.  There‘s no physical evidence that would add to the consistency of what she‘s saying.  So you know what Norm is really saying is you know you guys are right.  You look for consistencies, there are none here, and that Susan is really why this case should be dropped.

(CROSSTALK)

EARLY:  Yale, let‘s make it clear...

FILAN:  Nurse Coleman—Norm, let me just go...

EARLY:  OK.

FILAN:  Let me just go to Nurse Coleman for a second.  Nurse, I want you take a look at this.  This has to do with the discussion about physical injuries that Yale was just alluding to.  This is the accuser saying Matt grabbed me and looked at 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 to the medical doctor, when they examined her at the Duke University Medical Center, this comes out of the doctor‘s report.  Twenty-seven-year-old female alleged assault by three men denies other physical assault.  No evidence of other physical assault.  Karen? 

COLEMAN:  Well, I have a problem with the way that record was documented.  I have a problem with using the word alleged.  We don‘t allege when our patients have headaches or allege when they have stomachaches.  And rather than to talk about what she denies, you talk about what she said.  It‘s all in how she was questioned.

Sometimes you don‘t see evidence of physical injury, but if there‘s soreness or tenderness, that‘s considered an injury.  Depending on her complexion, she may or may not bruise right away, so she should be re-evaluated in a few days to see if there has been any change in the areas that she says were involved.

FILAN:  OK, but the D.A. would have had to have continued to disclose any further medical records.  What we know so far is there is nothing that they have that they haven‘t turned over, 1,278 pages.  There are no supplemental medical reports saying she didn‘t seem bruised that night, three days later lo and behold there are the bruises. 

COLEMAN:  OK.

FILAN:  Norm, you wanted to say something.

EARLY:  Yes, I was going to say I don‘t know whether these individuals are guilty or whether they‘re innocent.  I don‘t know whether they committed the acts or they didn‘t commit the acts.  But I do know that out of the statements you‘ve been reading, Susan that there are different interpretations of those statements. 

And I agree totally with what the individual—what the nurse was saying about the doctor‘s report.  It sounds to me like he expected there to be bruises and it was a negative report.  It was a report saying denies this, denies that, instead of actually saying what she said.  If he had put down what she did say, then maybe it would be very consistent what she did say to the police.  We don‘t know that. 

FILAN:  Yale, what do you make of the fact that the other dancer, Kim Roberts, who the alleged victim called Nikki, says I was with her the whole time.  It‘s a crock.  We were only separated at most for five minutes.  So the alleged victim‘s statement that they were in the house and they were separated seems to be contradicted by Kim.  And the other version of it that we were in the driveway and she helped dragged me back in the house seems to be contradicted.  Now, could you make the argument that the accuser is telling the truth and the second dancer is a liar? 

GALANTER:  Well, that would be really tough.  First of all, we have the complaining witness telling three or four different versions of the exact same event to different people on the night it occurred.  When Kim Roberts was questioned, you know, a day or two later, she categorically said that what the complaining witness said number one was a crock.  But even more importantly, she gives a different characterization of the complaining witness‘ mood. 

They‘re in the car.  The complaining witness says let‘s go back in and make some more money.  Now, that is not the words of someone who just went through a traumatic rape.  When Kim Roberts says I was with her the entire time except for a period of five minutes or less, I think that‘s the nail in the coffin for the prosecution. 

You know, we‘ve been discussing for weeks whether or not she would be a prosecution witness, Susan.  I‘m calling her number one right out of the box because...

FILAN:  Yes.

GALANTER:  ... she would set the mood for the whole trial.  These girls were there to make money.  And I‘m not saying that to disparage them or cast judgment on them, but this is what their occupation was.  Now, when the two girls...

FILAN:  Yale...

GALANTER:  ... are getting ready to leave and they say there is more money to be made...

FILAN:  Yale...

GALANTER:  ... obviously that‘s what they want to go back and do. 

FILAN:  Karen, bottom line, one last question real quick.  Has it ever come to your attention that somebody who you examined was making a false complaint?

COLEMAN:  It has on occasion, yes. 

FILAN:  All right.  Panel, thanks so much.  Yale Galanter, Norm Early...

GALANTER:  Thanks, Susan.

FILAN:  ... Karen Coleman, thank you. 

EARLY:  Thank you.

FILAN:  Coming up, D.A. Nifong may have thought his political troubles were over when he won a tough primary election last month, but now a top Durham Republican leader says he‘s running against Nifong.  He joins us. 

And next, this judge under fire after she dismisses a rape case because the prosecutor showed up to court up late.  She joins us when we come back.

Plus, Louisiana‘s governor is sending the National Guard into New Orleans after five teenagers were shot dead last weekend.  We talk to New Orleans district attorney about what needs to be done to restore law and order. 

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:  It may have taken an Ohio teenager years to tell her story about being raped and go forward with the trial, but it took a judge in Ohio only a matter of minutes to throw the case out.  The reason, the prosecutor was 45 minutes late to court.  Judge Eileen Gallagher joins us now on the phone.  How do you, Judge? 

JUDGE EILEEN GALLAGHER, THREW OUT RAPE CASE (via phone):  Hi, Ms. Filan. 

I‘m fine, thank you. 

FILAN:  Was this an extraordinary measure on your part? 

GALLAGHER:  It was a measure that needed to be taken. 

FILAN:  Why? 

GALLAGHER:  We are a court of law and there are rules by which we must all participate.  The rules are necessary for an organized society and this prosecutor was well aware of the fact that he was to be here at the appropriate time and in—at no time did he ever contact us to let us know that he would not be here.  Actually, the case was initially set for trial at 9:00 that morning and the state‘s main witness, this alleged victim, was not present and did not appear at the court until approximately 10:45 in the morning.  So after we handled some legal issues in chambers, the court rescheduled the trial to begin at 1:00 and that‘s when the prosecuting attorney failed to appear.

FILAN:  Now, what did you do at 1:00 when no prosecutor shows up to your court as he‘s required to do? 

GALLAGHER:  My bailiff made repeated calls to his office.  We had him paged at his office.  We called his cell phone.  There was no answer.  And eventually the receptionist in the prosecuting attorney‘s office told my bailiff that he said, I don‘t know why you keep calling, I told you we can‘t find him.

FILAN:  And that‘s a prosecutor that knew he was to appear before you specifically at 1:00 for trial, yes? 

GALLAGHER:  Absolutely.  It was on the record and before I dismissed the case, I had the court reporter check the minutes of the proceedings and in fact it was very clear to be here at 1:00.  The defendant was present, his attorney was present.  Actually, they were both present at 9:00 in the morning. 

FILAN:  Is this a recurring problem in your courthouse? 

GALLAGHER:  It is a recurring problem in our courthouse.  And in fact, this prosecuting attorney‘s office failed to meet a filing deadline in the Supreme Court of the state of Ohio recently and as a result, we were precluded from participating in argument before the Supreme Court that may potentially cause—cost this county $6 million... 

FILAN:  Your honor, some people think by dismissing this case you‘ve let an alleged rapist go free. 

GALLAGHER:  Absolutely not.  This young man has been on bond since September of 2005.  He has appeared at every court appearance, pretrial that was required.  He never missed one.  These charges can be refiled at any time by the prosecuting attorney.  That is within their discretion and a new indictment can be obtained.  We have grand juries that meet Monday, Tuesday, Wednesday and Thursday in Cuyahoga County and quite frankly, they could have gotten an indictment that afternoon if they chose to do so. 

FILAN:  Have they indicted him since?

GALLAGHER:  They have not sought an indictment yet, and the claims of the prosecutor that he was preparing an appeal are disingenuous, because the appeal, which was ultimately filed wasn‘t filed until three days after the case was dismissed by another assistant prosecuting attorney.  So where this young man was I have no idea.

FILAN:  Judge, what do you say to the victim who thinks that you acted really, really unfairly and that you‘re the one to blame for this injustice? 

GALLAGHER:  Well what I would say to this young woman is it‘s not my responsibility to advocate for her.  My job is to make sure that a fair and impartial trial is conducted.  It‘s the job of the prosecuting attorney to be present and present his case and the prosecutor is the one that failed this young woman.  And that is where her anger should be directed. 

FILAN:  Your honor, I was a trial lawyer for many, many years.  I was a prosecutor for many, many years.  I would sooner cut off my own head than be late to court knowing that when a court orders you to be present, you‘re present and if for any reason you cannot be, you contact that chambers any way you can, you get the word out and just because you contacted them doesn‘t mean there aren‘t going to be consequences.  Your honor, thanks so much for joining us.

GALLAGHER:  You‘re welcome.  Thank you, Ms. Filan.

FILAN:  You‘re welcome.  Joining me now on the phone is that lawyer on the case, assistant prosecutor Mark Schneider.  We also have Cleveland criminal defense attorney Elizabeth Kelley with us and former New York State Judge Leslie Crocker Snyder.  Thanks so much for joining us. 

UNIDENTIFIED MALE:  Thank you.

FILAN:  Mark, let me start with you.  You got your head handed to you.  You got your case dismissed and you‘re blaming it on the judge.  You know we can‘t be late for court. 

MARK SCHNEIDER, PROSECUTOR WHO WAS LATE TO COURT (via phone):  This case was about fairness for the victim.  The judge in this matter...

(CROSSTALK)

SCHNEIDER:  ... rendered an opinion before any evidence was offered in this case.  She said the victim was incredible.  At that point, we had no choice but to go and file an extraordinary writ to prohibit her from going forward and to get her removed from the case.  If we walked into that courtroom one second earlier before filing that writ, that‘s effectively giving up on a 9-year-old brutal rape victim. 

FILAN:  Why didn‘t you contact chambers?  Why didn‘t you get to her bailiff?  Why didn‘t you get to the court and say we‘re late?  I mean they‘re claiming that you were nowhere to be found.  At 1:00 you didn‘t show up.  They couldn‘t find you.  Your cell phone wasn‘t turned on or whatever and you never got word to them that you needed an extension of time to file this motion that you claim is so important. 

SCHNEIDER:  There were multiple prosecutors on the floor communicating that I was on my way to court.  Our front desk, when the judge called, informed the judge‘s staff that in fact I was on my way to court the last they saw me.  We were strenuously working on an emergency motion, an emergency motion to give a 9-year-old rape victim a fair trial. 

FILAN:  How is that victim doing now? 

SCHNEIDER:  Unfortunately, this victim feels victimized all over again

by this process.  This victim...

FILAN:  Why don‘t you re-indict? 

SCHNEIDER:  This victim has had to get together six different trial dates in front of this judge to prepare to give testimony.  That‘s very strenuous for a young girl who has had the courage to come forward.

FILAN:  Why don‘t you re-indict? 

SCHNEIDER:  Because right now we‘re letting the system take its toll. 

We filed the proper move, which is an appeal. 

FILAN:  Oh, aren‘t you doing that at the victim‘s expense...

SCHNEIDER:  If the appeal should fail, we have the option of re-indicting...

FILAN:  Re-indict.

SCHNEIDER:  ... at that point. 

FILAN:  Wow.

SCHNEIDER:  This case is going to come back.  We‘re going to make sure this little girl gets her justice in this matter.

FILAN:  But the more time that goes by you and I both know witnesses‘ memories change.  You‘ve got to try a case as soon as you possibly can.  Six years have already gone by.  Elizabeth Kelley, let me turn to you.  I understand you practice, you know this judge.  What is your opinion about what occurred? 

ELIZABETH KELLEY, CLEVELAND CRIMINAL DEFENSE ATTORNEY:  She‘s a good judge.  She‘s a fair judge, and I understand why she did what she did.  If the prosecutor‘s office was so troubled by the remarks she made that the victim had problems with credibility, they should have immediately asked her to recuse herself.  She made that remark supposedly back in November of last year.  They have had over six months to strategize about what to do regarding this particular judge. 

FILAN:  All right.  Elizabeth, so you don‘t blame this judge.  Judge Snyder...

UNIDENTIFIED FEMALE:  Yes.

FILAN:  Leslie Crocker Snyder, you sat on a bench.  You‘ve been kept waiting.  What do you think about what happened? 

LESLIE CROCKER SNYDER, RETIRED NY STATE JUDGE:  I think that both sides performed egregiously, shockingly, and the judge‘s conduct is in no way defensible.  She had ample opportunity to sanction the district attorney.  Dismissing the case is outrageous and I‘m reluctant to speak out against the fellow judge.

But the district attorney was totally wrong.  There are other assistant prosecutors.  One should have gone to the courtroom, stood up, lawyers are late, but then there are other people who can go and explain to the court.  So I think both sides performed just shockingly, badly.  But the judge particularly, because she is supposed to have the judicial temperament to deal with the situation by sanctioning or even holding this district attorney in contempt, depending on the rules out there in terms of sanctions. 

FILAN:  She must have really, really been pushed.  Mark Schneider, Elizabeth Kelley, Leslie Crocker Snyder, thanks so much for joining us. 

KELLEY:  Thank you.

SNYDER:  Thank you.

FILAN:  Coming up, D.A. Nifong may have thought his political troubles were over when he won a tough primary election last month.  But now a top Durham Republican leader says he‘s running against Nifong.  He‘ll join us next. 

And U.S. troops kick their way through roadside bombs and booby traps and find the bodies of two U.S. soldiers kidnapped in Iraq.   

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 West Virginia. 

Police are looking for Okey Berryman.  He‘s 49 years old, five-foot-six, weighs 190 pounds.  He was convicted of first-degree sexual abuse and hasn‘t registered his address with the state.  If you‘ve got any information on his whereabouts, please call the West Virginia State Police at 304-746-2133.  We‘ll be right back.

(COMMERCIAL BREAK)

(NEWS BREAK)

FILAN:  What was supposed to be an easy, unopposed November election for Mike Nifong, the D.A. in the Duke lacrosse rape case, may not be so easy after all.  And Steve Monks, Durham‘s Republican Party chairman is one person trying to make it a real challenge.  He‘s hoping to add his name to November‘s ballot.  Monks isn‘t the first to express an interest in running. 

Just last week Durham attorney Louis Cheek said he‘s considering running against Nifong.  Cheek has already formed a campaign committee with Nifong‘s former campaign manager listed as his treasurer.  So what‘s the motivation to unseat the current D.A. in November?  Here to answer that is Steve Monks.  Hello, Steve.  How are you? 

STEVE MONKS, REPUBLICAN CHALLENGING DUKE D.A.:  I‘m fine, thank you. 

FILAN:  Why are you trying to unseat Mike Nifong now? 

MONKS:  Because the events that led to me questioning his ability to handle his job occurred just recently. 

FILAN:  Is it all about Duke? 

MONKS:  And the last—it‘s primarily about Duke, because that is the point that caused us to have the issues of questioning his ability to continue to effectively do his job.  Certainly, our community is torn up by this. 

FILAN:  Why has the way he‘s handled Duke caused you to question his ability to do the job? 

MONKS:  Well, you just simply take a look at the initial way that he disclosed information.  I suspect he regrets it.  The issue then created tremendous turmoil in this community.  It now has caused an issue to have to overly focus on the accuser—I mean these accuser statements. 

These boys have then strongly rebutted that.  They have now caused this to have to be fought in the media instead of the courts.  And now we‘re going to question—where I think a lot of us question whether or not Mike will effectively re-evaluate his position in light of what‘s been reported as the evidence as it is. 

FILAN:  Steve, let‘s say he misstepped in front of the media.  Let‘s say he misspoke in front of the media.  Let‘s say he blew it the way he handled the media.  To me we‘ve got a much bigger problem now, which is these three guys are indicted.  The evidence really doesn‘t look like it‘s adding up.  This case doesn‘t look like it can be proved, even to the point where it may look like these boys—it may not be a question you can‘t prove it.  It may be even a question did it happen at all?  What would you do differently if you were the D.A. than what Mike Nifong is doing now? 

MONKS:  Well, the difference is, is that—and I think—I wish Mike would simply turn over some third person who he trusted and say give me your honest assessment.  But at the end of the day he‘s the person that makes the decision.  And that—maybe he has done that.  I don‘t know. 

But we—the only thing that‘s really not in this equation is that I‘ve not had the opportunity to look in the eyes of the accuser and get a gut feel as perhaps Mike has as to the credibility of that person.  Perhaps on that basis alone, he‘s intending to go forward.  And perhaps that is sufficient.  That‘s what he‘s telling us. 

FILAN:  Steve, take a look at this.  This is what the D.A. has said thus far.  He said this very, very recently.  He said 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 worse 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.  Steve, to me that sounds like a rodeo cowboy basically saying, I‘ve got my position.  I‘m not backing down.

I‘m going to have to have a jury acquit these guys, but I‘m certainly not going to take a fresh look at it with all I‘ve known and seen or worse he‘s saying I‘ve taken a fresh look and I don‘t know what any of you are talking about.  If that‘s true, and he was good enough to get elected, he was good enough to be a D.A. for 27 years, what is wrong with him now?  Why is everybody second-guessing him now? 

MONKS:  The question—there‘s a big difference between the ability to try a case, which he can do, and in fact, that‘s the easy route in this case.  He tries the case, he loses.  Well, the jury didn‘t you know believe the case and there wasn‘t sufficient evidence, he‘s off the hook.  The question really is, is that the best thing for this community and for the accused and the accuser? 

FILAN:  If you looked at this case, you saw all the evidence as I‘ve seen it, which I‘ve got to tell you doesn‘t add up, but let‘s say you look at it, you don‘t think it adds up either, but you look this victim in the eye and you get a gut that she‘s telling the truth it happened.  Is that enough for you to go forward?  A gut?

MONKS:  A gut is never enough.  And I won‘t know whether or not unless I get the opportunity.  And frankly, this is all an academic discussion unless I get on the ballot and there‘s no way to do that until I get 6,303 signatures on a petition.

FILAN:  But you‘re a family lawyer...

(CROSSTALK)

FILAN:  You‘ve never tried a criminal case, right? 

MONKS:  Absolutely not.  I‘ve tried the most serious of criminal cases.  That‘s about 50 percent of my practice.  I have—in fact, the last case that Freda Black, one of the most experienced prosecutors tried in the District Attorney‘s Office was against me and I won. 

FILAN:  You think Mike is a good...

MONKS:  So I have no question about my qualifications. 

FILAN:  OK.  Do you think Mike is a good prosecutor? 

MONKS:  I think Mike is a good trial attorney. 

FILAN:  Do you think he‘s backed himself into a corner now where even if he‘s doing the wrong thing he‘s not going to go now and do the right thing? 

MONKS:  I think Mike is a good person in his heart.  I think he‘s convinced himself he‘s doing the right thing, as a result of which that‘s a question of perception.  At this point, the easy route is to try this case...

FILAN:  Right.

MONKS:  ... and Mike is going to try this case.  He‘s good.  There‘s no question about that. 

(CROSSTALK)

FILAN:  That might not be the right route.  Steve Monks, thanks so much. 

Coming up...

MONKS:  Please, I got to get on.  You got it.

FILAN:  ... U.S. troops find the bodies of two American soldiers kidnapped in Iraq.  An Iraqi general says they were killed in a barbaric way. 

And the National Guard is back in the streets of New Orleans trying to restore law and order.  I‘ll talk to the city‘s district attorney to find out why. 

Your emails, 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, National Guard troops head back to New Orleans trying to help police restore law and order after a deadly weekend.  We talk to the New Orleans district attorney.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

MAJ. GEN. WILLIAM CALDWELL, U.S. MILITARY SPOKESMAN:  ... believe to be our two soldiers‘ remains were in fact found last night in the vicinity of Yusufiya.  Our heartfelt prayers go out to both the families and friends of our two soldiers. 

(END VIDEO CLIP)

FILAN:  The news their families dreaded.  It‘s all too real today.  The bodies of Privates First Class Thomas Tucker and Kristian Menchaca found after a massive search by 8,000 U.S. and Iraqi troops, allegedly slaughtered by the new leader of al Qaeda in Iraq.  Both privates went missing Friday night after a checkpoint shootout at a town in Iraq‘s (UNINTELLIGIBLE) region.  An area soldiers know as the triangle of death.  An Iraqi general told reporters the men had been tortured in a barbaric fashion and U.S. military spokesman General William Caldwell says the bodies were found surrounded by bombs.

(BEGIN VIDEO CLIP)

CALDWELL:  We spotted what we believed to be them late last night and then brought the necessary assets in like explosive ordnance and some others because there are were some IEDs in that location and they did have to dismantle some stuff to get to them.

(END VIDEO CLIP)

FILAN:  Colonel Jack Jacobs is an MSNBC military analyst.  As an officer in Vietnam, he earned many of the nation‘s top military honors including America‘s highest military decoration, the Medal of Honor.  He joins us now. 

There‘s no way we were going to leave bodies behind, but how hard was it for our men to retrieve these boys?

COL. JACK JACOBS (RET.), MSNBC MILITARY ANALYST:  Well they had to—they literally had to fight their way in.  There was some explosive ordnance, as you heard, but there were also some firefights, it‘s my understanding, and these were all laid in advance to make it difficult for us to go get the bodies.  It was all on purpose. 

FILAN:  Why did they have to kill these soldiers? 

JACOBS:  Well, that‘s a very interesting question.  You would think that they would capture them expressly for the purpose of (A), demonstrating that they wanted to capture them and (B), to show them off (UNINTELLIGIBLE) all that sort of stuff.  In fact, we found them dead just a few days thereafter.  My understanding is that we actually had the bad guys on the run, that they thought that we knew where they were.  They couldn‘t get back into Ramadi because we had it surrounded, so they killed (UNINTELLIGIBLE).

FILAN:  Was it true that we didn‘t have a decent plan to get our soldiers out once they were captured?

JACOBS:  No, no, that‘s not true.  We had eight to 10,000 troops on the ground.  You couldn‘t get in or out of the area without passing an American checkpoint.  And that doesn‘t even include all the air assets that we had overhead and all the satellites and so on.  In addition, we were—you know we had bags of money over there, paying informants to give us information and that bore fruit. 

We got good information.  That was processed, turned into proper intelligence and then we conducted the retrieval operation.  So they did as best they could under the circumstances I should think. 

FILAN:  You know the Iraqis are trying to get at us by capturing our soldiers and killing them.  And today we mourn these soldiers, our hearts go out to the families.  But are we giving the Iraqis what they want when they see our grief and our tears? 

JACOBS:  Well that‘s also an interesting question.  You know sometimes it‘s easy to be self-centered here.  We think that everybody is looking at us.  The Iraqis are not paying very much attention to what takes place over here.  Certainly the insurgents are not. 

The large proportion of the result that they were looking for in capturing these guys was for Iraqi consumption.  You‘ve got lots of cells of al Qaeda and other insurgents who are vying for prominence and particularly in the Sunni triangle and triangle of death and this was part of that operation.  It was mostly for Iraqi consumption I‘m afraid.

FILAN:  What do you say to other soldiers over there serving our country so that this can‘t happen to them?  How can they be careful?  How can they stay safe in this crazy, crazy situation? 

JACOBS:  Well I think you can expect that the command is working very hard to re-teach the lessons that all these kids learned initially.  You don‘t leave a very small number of unprotected soldiers by themselves while you go off and chase bad guys.  It‘s just exposing people who are not protected and something bad is going to happen.

The unit has to stick together.  You either hang together or hang separately.  We‘re trained from the very, very beginning that you‘re the most powerful when you‘re all together and that‘s what should have been maintained here and unfortunately it wasn‘t adhered to and is the principle reason why these kids got captured in the first place.

FILAN:  Well, I know we both want each and every soldier to come home safely.  Colonel Jack Jacobs, thanks so much for joining us. 

JACOBS:  You‘re very welcome.

FILAN:  Coming up, some are calling it hurricane crimes and the National Guard is being called on once again to help restore law and order in New Orleans after a bloody weekend in New Orleans when six people were killed.  The New Orleans district attorney is here next. 

And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing sex offenders before they strike again.  This week we‘re in West Virginia.  Police need your help finding Donald Jay Stricklin.

He‘s 58, five-foot-eight, weighs 160 pounds.  He was convicted of lewd and lascivious assault on a child 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)

(BEGIN VIDEO CLIP)

RAY NAGIN, NEW ORLEANS MAYOR:  This is an extension of that original mission that you had where we now need some support to get through a pretty tough time as this city continues to restore itself and rehabilitate itself from the devastations of Katrina. 

(END VIDEO CLIP)

FILAN:  The scene is reminiscent of the aftermath of Hurricane Katrina in New Orleans.  But this video was not shot in the days after the deadly storm, it was taken today as 100 National Guard troops and 60 state police troopers arrived in that city to take over street patrols in the wake of increasing violence there.  According to “The New Orleans Times-Picayune” Saturday was the city‘s deadliest day in a decade. 

Five teenagers were gunned down and a 66-year-old man stabbed to death.  And earlier today, another murder, bringing the total this year to 54.  State and local leaders reacted to the rising murder rate.  Joining me now is Eddie Jordan, the New Orleans district attorney.  Thanks for coming on the program.  How do you do? 

EDDIE JORDAN, NEW ORLEANS DISTRICT ATTORNEY:  Thanks for having me. 

I‘m doing fine, Susan. 

FILAN:  You got a tough job there.  What role is the National Guard going to take there in New Orleans now? 

JORDAN:  Well, it‘s my understanding that the National Guard will simply replace New Orleans police officers in certain parts of the city so that the police officers can patrol other areas that have a large amount of crime. 

FILAN:  Take a look at this statement.  This is a statement from the mayor.  Let‘s get your reaction to this.  Nagin said Monday that he believes some thugs are coming home from places like Houston because the judicial system is in such disarray here that they‘re in less danger of spending long stretches in prison.  As the chief law enforcement officer, I‘m sure that‘s not what you want to hear, but do you think it‘s true? 

JORDAN:  I think we have some thugs who are coming back, but they‘re not calculating that they can do better here in terms of the criminal justice system.  They‘re coming back to New Orleans because this is their home and they‘ve lived here all their life.  So that‘s the real reason that they‘re coming back. 

But our criminal justice system is really funded at the local level, and that is part of the problem that we‘re having.  I think it‘s great to have the Louisiana National Guard here, but in the final analysis, it is our local criminal justice system that must deal with the criminal element here in the city of New Orleans.  And we have not always made our local criminal justice system a priority in terms of municipal funding.  And that‘s a big problem. 

FILAN:  Eddie, take a look at what the mayor had to say about that and we‘ll get your reaction.  We are going to watch and monitor much closer what‘s happening in the criminal justice system.  And if we see some things that we don‘t like, you may see the mayor and the city council show up at a hearing and be personally involved in making sure that people are not getting lower bonding so that they can get back out on the street.  Is it so bad the mayor himself is going to have to show up in court and make sure the guys that shouldn‘t be getting out aren‘t getting out? 

JORDAN:  Well, that‘s what I‘ve been encouraging the mayor and the city council and citizens throughout the city of New Orleans to do, to get more involved in our local criminal justice system.  And frankly, we have a situation here today that‘s unacceptable.  We have six judges holding court once a week and rotating every other week. 

So they are not really in a position to conduct a good number of judicial proceedings.  And they‘re only allowed 12 inmates per day.  We have something like 6,000 cases on our docket. 

FILAN:  Right.  Right.  Eddie, God forbid there‘s another hurricane. 

Is the criminal justice system up to handling that? 

JORDAN:  Well, obviously we haven‘t been restored to our pre-Katrina level, so we really need to get back to that level.  And we need the city to recognize the importance of getting our court up running fully in order to deal with the criminal element, because even if the Louisiana National Guard assists the police officers in rooting out crime here in the city, the problem is that those individuals have to be prosecuted in a court of law.

And that means that they have to have an arraignment.  They have to have a bond hearing, pretrial hearings and they have to have access to a trial.  And all of that has to take place immediately in the near future if we‘re going to deal with the huge backlog of cases that we currently have.

FILAN:  Well, Eddie, America is with you in your fight to keep law and order in your beautiful city that‘s been so hurt by this hurricane.  Hopefully, the National Guard will help.  Eddie Jordan, thanks for joining us. 

JORDAN:  Thank you very much, Susan. 

FILAN:  Coming up, a lot of you writing in about our exclusive look at the nearly 1,300 pages of evidence the Duke D.A. turned over to the defense.  Your e-mails up next. 

(COMMERCIAL BREAK)

FILAN:  Time now for “Your Rebuttal”.  Many of you writing in about our exclusive coverage of the discovery in the Duke lacrosse rape case. 

Joyce Gilbertson from Santa Fe, New Mexico, “Funny, I always thought that the jury decided whether someone was guilty or innocent.  Why is everyone so upset and arguing?  Let the Duke case go to the jury and let the jury decide whether there is proof or not.”

Well, because we don‘t try people who may be innocent just for sport to see how the jury system works.  This isn‘t a game of Russian roulette.  We don‘t play games with people‘s lives.

D. Patras, “I was raped in high school by athletes.  Then in college I saw and was exposed to the arrogance that many athletes had.  That said, my bias exposed, I believed surely that the lacrosse players were guilty.  Within weeks, I doubted it.  Within a month, I disbelieved it.  Dan Abrams does not wish to call the accuser a liar, understandably, so I will.  She is lying, period.  I hope it can be proven so she can be prosecuted.  She sets back all true rape victims.” 

And Robert Jacobs from Glendale, Arizona, “A new word is about to become part of our lexicon and will be appearing in every dictionary in the world.  Nifonged, a euphemism for inept and corrupt prosecutors.  My client was Nifonged the other day in court.  I hope I don‘t get a Nifong prosecutor.  This Nifonged prosecutor has ruined my life for his own ambitions.  I‘m being Nifonged for political correctness and politics.”  Ouch!  (UNINTELLIGIBLE)

Greg Kidder writes, “I am writing to apologize for all the nasty things I said after you proclaimed that an acquittal doesn‘t mean it didn‘t happen.  Your change in position is admirable.  You stuck to your guns for as long as you could and when presented with evidence to the contrary, you exercised your judgment and changed your mind.  I hereby anoint you ‘Sensible Susan‘.”  Oh, thank you very much. 

And one of you didn‘t see eye to eye with Joe Bodiford, the civil attorney who came on our show yesterday to side with Tyco, the company now being sued by Claudia Muro.  She was the nanny who served two years in jail because of footage from Tyco‘s nanny cam that showed her shaking a baby. 

Rick Ness from Salem, Oregon, “The lawyer defending the Tyco Company is a poster child on why the average person hates lawyers.  Although the woman spent over two years in prison for abuse she didn‘t commit, he has the guts to say it‘s not the camera company‘s fault.”  Well, not everyone hates lawyers.  My mom loves me.  And it hasn‘t always been easy hosting THE ABRAMS REPORT. 

Steve Sitar, “Susan Filan has improved daily in hosting THE ABRAMS REPORT.  The first few days were shaky.”  Oh, no kidding.  You should have seen them back in the control room.

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. 

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

Good night.

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

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