updated 6/28/2006 12:25:42 PM ET 2006-06-28T16:25:42

Guests: Norman Early, Jonna Spilbor, Susan Filan, Jake Goldenflame, Maureen Seaberg, Michelle Suskauer

JIM MORET, GUEST HOST:  Coming up, defense lawyers in the Duke lacrosse rape case say their clients can‘t get a fair trial until the D.A.  makes up his mind about which of the accuser‘s version of events he‘ll use at trial. 

The program about justice starts right now. 

Hi everyone.  I‘m Jim Moret of “Inside Edition, sitting in for Dan Abrams.

First up on the docket, defense attorneys in the Duke rape case are coming out swinging at the Durham district attorney, Mike Nifong, days after he released a second batch of evidence, 536 pages of discovery. 

In a motion filed late yesterday, attorneys for Reade Seligmann, one of the Duke lacrosse players charged with raping an exotic dancer in March, say—quote—“None of the discovery shows that any crime actually occurred.  In fact, it shows that the accuser even stated no rape occurred and gave approximately one dozen conflicting statements including one story where she alleged her coworker robbed her of $2,000.  The discovery provides no account of which story is going to be presented as the quote ‘true story‘ or how any crime could have even occurred given the number of established facts, which contradict every one of the accuser‘s stories except for the true story that she was not raped.”

Joining me now, MSNBC legal analyst and former prosecutor, Susan Filan, criminal defense attorney Jonna Spilbor, and former Denver district attorney, Norman Early.  Thank you all for joining us.

Norman, first to you, what do you make of this?  As a D.A. what are your obligations as far as laying out one specific allegation? 

NORMAN EARLY, FORMER DENVER DISTRICT ATTORNEY:  First of all, what you just read was defense propaganda.  And it was written in that motion specifically so that media people would pick it up and continue to push the defense story in this case.  If Mike Nifong were to select one option in this case, the defense would put on the other options.  And the defense would say you know what, this is stuff the district attorney didn‘t want you to know. 

He just wanted to put on the most favorable case to him, didn‘t put on anything that contradicted that case.  We‘re the ones, as the defense, who had to bring it out for you jury.  You shouldn‘t believe anything the district attorney says.  I don‘t think that would be a wise move.  Any prosecutor knows that if you have issues in your case that you present those issues to the jury, say these are issues.  There may be some contradictions here, but you know what, we‘ve proven the case nonetheless.  That‘s a prosecutor‘s job. 

MORET:  Jonna Spilbor, you‘re a criminal defense attorney.  Do you agree?  Is that propaganda?

JONNA SPILBOR, CRIMINAL DEFENSE ATTORNEY:  Absolutely not.  The prosecutor is not going to have a choice to ignore this motion.  What this is, is a request for a bill of particulars.  What does that mean?  It‘s a request for fact.  The defense is saying hey look, put your money where your mouth is and tell us how you‘re going to prove each and every element of the offenses that you‘ve charged my clients with, and if you can‘t do it, then there is no case. 

And if they do, do it, then at least the defense can prepare.  Right now they can‘t prepare.  You have 1,800 pages of discovery.  The Lindbergh kidnapping didn‘t generate that much discovery.  Much of that is just flux (ph).  Let‘s cut to the chase, and that‘s what this defense motion is about. 

MORET:  Susan Filan, aren‘t the defense team—isn‘t the defense team really being buried by paperwork right now?  You‘ve got hundreds and hundreds of pages and conflicting testimony, conflicting facts.  How do you proceed as a prosecutor and what‘s fair? 

SUSAN FILAN, MSNBC LEGAL ANALYST:  Well, what‘s fair is to do the right thing.  And I think Norm hit it on the head.  If you‘ve got discovery data that does show that there are inconsistent versions of her story, you‘ve got to disclose that to the defense and then let the witness testify.  This is a pure showboat motion.  I mean this is really a play to the media. 

This bill of particulars is going to go nowhere.  The indictment alleges the essential facts.  The witness will testify at trial.  The defense will cross-examine.  The jury will make a determination as to credibility, but the rest of this is really just for the benefit of the media, so we can pick up the same ball that they wanted us to carry all along, basically say there is no case.  Mike Nifong is crazy.  He‘s out of control.

This should be dismissed.  Well the 1,800 pages of discovery don‘t bury the defense.  I think Dan Abrams said when you boil it down, there‘s about 70, 75 pages that really matter to this case.  And if he didn‘t disclose it all, you‘d say oh, he‘s hiding the ball and if he does disclose it all, you‘d say oh he‘s burying the paper.  Dammed if he does, dammed if he doesn‘t. 

But this is really the way a case proceeds.  There‘s nothing unusual about this discovery.  What‘s unusual is about the way the witness has these problems in her different versions.

MORET:  But Norman, you seem to be critical of the defense for coming out saying that the media will simply pick this up, as we are right now discussing this, and that the prosecution doesn‘t have an opportunity to make the other point.  The prosecution does in fact in court.  And is it really wrong for the defense to come out swinging in favor of their clients? 

EARLY:  Well I mean they‘re going to do their job, and part of their job quite frankly is to sift through 1,800 pages of discovery and figure out what‘s germane and what‘s not germane.  It is not the prosecutor‘s job to set up the case for the defense attorneys.  This was done just what Susan said for, for the purpose of further propagating the stuff that they‘ve been saying about Mike Nifong. 

They say they have 22 points here.  Actually when I read those 22 points, it was about three points stated seven different ways each and then add another point in.  It wasn‘t 22 points.  But here we‘re saying that there were 22 points raised by the defense.  We‘re saying the defense says that there‘s absolutely no case here.  Hey, Mike Nifong said I‘ll prove this case in court and I‘m going to argue this motion in court.  And that‘s where it should be argued, not here in the media, advancing the defense‘s position. 

MORET:  Jonna, this is not a case about Mike Nifong and whether he should or shouldn‘t have brought this claim.  The question is, is the accuser telling the truth?  Is there a set of facts that substantiate or support a charge of rape?  And if you represent clients and you have information that suggests that there are conflicting statements, as there are here, or things that just don‘t make sense, as you have here, and you‘ve got people charged with a very serious crime...

(CROSSTALK)

MORET:  ... shouldn‘t you come out swinging? 

SPILBOR:  Absolutely.  They should have filed this first.  You know what, because if they had, if defense attorneys had filed this bill of particulars first, before they bombarded the D.A. with all this evidence that almost proves their clients are innocent, if they came out with this first and said hey, what are you going to use to prove this case, nobody would be complaining.  But now that we know the defense has a stack of evidence that supports the defense that nothing happened (UNINTELLIGIBLE) all of a sudden everybody‘s upset about it.  The D.A. is going to have to answer this bill of particulars, plain and simple.

FILAN:  It doesn‘t support that nothing happened.  We don‘t know what happened.  We know something happened, but we don‘t know what it is.

MORET:  But Susan, speaking to that, let‘s go to a full screen graph we have of the defense statement.  With so many different stories floating through discovery and elsewhere and with Mr. Nifong having to bolster his reputation, which he damaged with his premature public statement, it is essential for Reade Seligmann to have a forecast of exactly which of the many stories Mr. Nifong on behalf of the state and his own self interest will use in his attempt to falsely prosecute the defendant.

Clearly that‘s a statement by a defense attorney, Susan.  However, if you have inconsistent statements being made by an accuser—I was attacked by 20 people, I wasn‘t raped, I was raped, I wasn‘t forcibly raped—you know you have all of these different things, isn‘t it fair to come out with one theory of a case and let them present that to the defense and say here, defend it?

FILAN:  Absolutely not.  That—this is what we call time at trial stuff.  What happens is the witness testifies.  The defense cross-examines, but the district attorney can‘t say ahead of time that this is what the witness is going to say.  It comes out through testimony.  The witness has a right to tell her story.  The district attorney has an obligation to disclose the different versions that she‘s told up until now. 

The defense uses that for cross-examine.  But this language in this motion is really inappropriate.  I have no problem with them coming out swinging.  The system only works if you have good adversaries on both sides and that‘s right and fair.  But to mudsling at the D.A. in this motion I just think is really inappropriate.  It‘s porcanin (ph).  That‘s nonsense. 

What really matters is what they‘re saying is with all these different versions tell me which one you‘re going to use.  That‘s just not the way it works.  There‘s inconsistent pleadings, there‘s different versions and they don‘t have to conform their case to the proof ahead of time.  It happens after the witness testifies.  That‘s when and if the defense wants to make a motion to dismiss to keep it ever from going to jury.  The court can take up at that time, but without testimony—I mean we‘re basically throwing out the game before we‘ve ever seen the first pitch. 

MORET:  Norman, in our last 30 seconds on this topic, would it concern you, as a district attorney, that you have an accuser who has changed her story on numerous occasions? 

EARLY:  Tim, you haven‘t read the file, and neither have I.  And it‘s the defense attorneys out there who keep saying this woman has changed her story over and over again, and it‘s being picked up by the media.  You don‘t know that she‘s changed her story 15 times, 10 times, 12 times or six times or two times.  You don‘t know of your own knowledge because you haven‘t read the file, and neither have I.  But what happened here is the defense has taken a very skillful assault against this victim. 

And this is one of the problems in this criminal justice system, when women have the courage to come forward and say they were raped, they get emasculated.  They get excoriated in this system by defense attorneys to the point that many of them drop out.  They say enough is enough.  I won‘t go further. 

That is a—not a fair system.  That is an unfair system, which allows defendants never to see the inside of a courtroom, because of the pressure the defense attorneys put on victims and because that pressure is picked up by the media. 

MORET:  Your points are well taken.  We‘re going to obviously be following this story.  All of our panelists are staying with us.

But coming up, a federal judge blocks a law banning sex offenders from living near school bus stops in Georgia.  Lawyers saying in some counties that there is nowhere sex offenders can possibly live.  We hear from a recovering sex offender, coming up next.

And you‘ve seen Chris Hansen going undercover with “Dateline NBC” and police to track down potential sexual predators.  Now he‘s taking the case to Capitol Hill.

Plus, customs agents catch Rush Limbaugh with a bottle of Viagra that was prescribed to someone else and prosecutors are determining whether it violates the terms of his plea deal.

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

(COMMERCIAL BREAK)

MORET:  Last year 9-year-old Jessica Lunsford was kidnapped from her bedroom in the middle of the night.  Convicted sex offender John Couey later admitted to sexually assaulting the little girl over a period of days and killing her in the most unimaginable way. 

(BEGIN AUDIOTAPE)

COUEY:  I went out there one night and dug a hole and put her in it, buried her.  I pushed—I put her in plastic bag, plastic Baggies.

DETECTIVE:  Was she dead already?

COUEY:  No, she was still alive.  I buried her alive.  Like it‘s stupid, but she suffered.

(END AUDIOTAPE)

MORET:  In the wake of Jessica‘s death, lawmakers around the country scramble to get tough on sex offenders.  Now one of those laws is under fire.  Civil libertarians saying lawmakers have gone too far and one federal court judge seems to agree.  In Georgia, as of July 1, convicted sex offenders are not allowed to live, work, or loiter within 1,000 feet of just about anywhere that kids gather including school bus stops. 

U.S. District Court Judge Clarence Cooper has put that law on hold at least for eight sex offenders who filed a suit saying this law may be unconstitutional.  We‘re joined now by recovering sex offender Jake Goldenflame who‘s also the author of “Overcoming Sexual Terrorism: 60 Ways to Protect Your Children From Sexual Predators”.  Back with me, former Denver district attorney, Norm Early, criminal defense attorney Jonna Spilbor. 

Norm, after beating me up in that first block, I‘m going to go to you first.  What do you think about this?  Should this law be upheld in your view? 

EARLY:  Well remember Jim, we‘re talking about 1,000 feet.  We‘re talking two or three, maximum, four blocks.  And if sex offenders can‘t find some place to live that‘s not within three or four blocks of a school bus stop, not any kind of a bus stop, but a school bus stop—you know I cannot believe that every sex offender in the state of Georgia lives within 1,000 feet of a school bus stop and that they‘re going to have to relocate. 

If they do have to relocate, we‘re talking about inconvenience to a sex offender as opposed to the lives and the safety and the welfare of young school kids.  When I look at that balance, inconvenience versus life, I take life.  And I say that these young kids should not have to be standing at bus stops, worried about the individuals who come by them, who can easily take them back that two or three blocks—or one block if the law is not upheld—right to their home and who knows what would happen to them.  I think it‘s a good law and I think it‘s a law that we can live with.  And I don‘t think it‘s too inconvenient for sex offenders.

MORET:  Jake Goldenflame, the people who filed this lawsuit say that it‘s one thing to prohibit them from living or loitering around a school, but there are school bus stops on many corners in many neighborhoods and they would effectively not be able to live in virtually any county that they can imagine in Georgia.  What do you make of this law? 

JAKE GOLDENFLAME, RECOVERING SEX OFFENDER:  Well, the first problem with the law is it‘s not specific enough.  We use this term sex offenders.  And as the case itself has pointed out, that‘s a broad concept.  I mean one of the plaintiffs in this case is called a sex offender, and frankly the only conduct that she was guilty of was when she was a kid she had sex with another kid. 

I question whether that‘s even a sex offense and frankly, when Megan‘s Law went before the U.S. Supreme Court, Justice Breyer had the same concern when he taught the same kind of provision in Connecticut‘s law.  So this term, sex offenders, they are like John Couey, if he‘s guilty.  Many of them are people like the woman in this case.  Several of the other plaintiffs in this case, their only misconduct was morally inappropriate conduct when they were kids, but at least it was consensual with other kids.  I think we can‘t use that term sex offenders and make any sense out of it, when sex offenders means everybody from serial rapist to somebody who had an improper affair when they were a teenager. 

MORET:  Now Jake‘s point is that some of those sex offenders are broadly put in this category. 

GOLDENFLAME:  Yes.

MORET:  Let‘s look at one of the people involved.  Wendy Whitaker, 10 years ago when Ms. Whitaker was a 17-year-old high school student, she engaged in a consensual act of oral sex with a 15-year-old male.  She ultimately completed five years of probation.

Jonna, clearly she would be in a different category than say a person who molests young boys or young girls, wouldn‘t she? 

SPILBOR:  Morally and legally speaking, but in accordance with this law, no.  She would have to up and move too and I disagree with Norm.  This is not just an inconvenience for registered sex offenders.  A lot of registered sex offenders have families, Jim.

They don‘t just live alone; you know drooling over some dirty magazine and hobbles (ph).  They have families.  In most cases they have done their time, they have served their parole.  Now they‘re off parole completely, but because they still register, the law wants to come in and tell them to up and move, sell your house.  I mean they could be homeowners.  Up and move, you and your family.  It‘s not OK.  It violates the Constitution.

MORET:  Norm, how do you differentiate between the various classes of sex offenders?  You talk about some of the plaintiffs in this lawsuit and clearly they don‘t fall in to what we normally think of as sexual predators.  Should they be treated differently in your view? 

EARLY:  You know I think that the definition of sexual predator may be an issue in this case and in a lot of states, quite frankly.  I disagree with a lot of people who are put in to the sexual offender category.  And if this law is not tight in that—on that issue it may need to be tightened up.  I thought the real issue here was 1,000 feet of a school bus stop.  And if that is the issue that we‘re talking about, not the kind of person who can‘t be there, but the fact that there are some people who should not be living within 1,000 feet of a school bus stop. 

Kids are congregating there and as a result they can pick up a kid and take them right back three houses down and—from the bus stop and who knows what will happen to them.  I agree totally with Jake, that if, in fact, they have people in this category, and the law is not sufficiently defined, then that should be changed.  But as far as whether the law of trying to keep sexual predators...

UNIDENTIFIED MALE:  Yes.

EARLY:  ... away from young children...

UNIDENTIFIED MALE:  Yes.

EARLY:  ... I think that that is a good concept and that is a concept that should be upheld.

MORET:  Jake, I see you nodding your head in agreement.  Look, I have three children. 

GOLDENFLAME:  Yes.

MORET:  A 19-year-old, 17-year-old, and a 8-year-old, I don‘t want any of them around a potential sexual predator...

GOLDENFLAME:  Right.

MORET:  ... simple as that.  But I also need to balance that against what‘s realistic. 

GOLDENFLAME:  Yes.

MORET:  Do you think that this school bus stop rule is just unrealistic on its face, or do you agree with Norm that look, we have laws, you break the law...

GOLDENFLAME:  Yes.

MORET:  ... you pay the price. 

GOLDENFLAME:  One of the problems we have with this particular case as I read the complaint is that there‘s no clear marking as to where the bus stop is in some instances, which makes it you know meaningless to have such a prohibition if nobody knows where it is they‘re supposed to stay away from.  Secondly, however, I agree completely that there are certain people among us who are convicted sex offenders, who should not be around children.  I have said this when I go into prisons and talk with the men, I say if you have a conviction for molesting a kid, you should not live in an area where there are children.  Don‘t move into a family neighborhood.  Don‘t live near a school, bus stop.  Don‘t do that kind of thing. 

Not only is it dangerous for the children, it‘s dangerous for you.  And that‘s the message I want to get to them.  Now I think we do more—we do much better if we look to the school bus stop issue and said let‘s spell this out.  If we want to keep them away from school bus stops, let‘s have a reasonable area—I don‘t know whether it‘s 1,000 feet, 2,000 feet, 500 feet—that‘s for the municipality to work out in each case—but make sure that the school bus stops are places that everybody can see is a school bus stop, or you‘ve got a law that can‘t be enforced. 

MORET:  Norm Early and Jake Goldenflame, thank you both for joining us.  Jonna is going to stick around. 

But now to Capitol Hill, the latest stop on Chris Hansen‘s “Dateline NBC To Catch A Predator” series.  This time Chris is not trying to catch potential predators before they strike in the halls of Congress.  He‘s talking to lawmakers about making the Internet safer for kids.  After giving an opening statement about “Dateline‘s” two-year investigation, members of the House Oversight and Investigations Subcommittee watched a DVD of Hansen‘s reporting, then questioned Hansen.

(BEGIN VIDEOTAPE)    

CHRIS HANSEN, “DATELINE NBC” (voice-over):  They think they‘re headed for a clandestine meeting with a 12, 13, or 14-year-old. 

UNIDENTIFIED MALE:  Hello.

UNIDENTIFIED MALE:  Hi.

UNIDENTIFIED MALE:  Hey.  Hold on a second.  I‘ve got to change my shirt. 

UNIDENTIFIED MALE:  OK.

HANSEN:  They think a child is home alone. 

UNIDENTIFIED MALE:  Where are you?  Oh, OK.

UNIDENTIFIED FEMALE:  Did you bring condoms? 

UNIDENTIFIED MALE:  Yes. 

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Well I don‘t know what to say, Mr. Hansen.  That was quite a compelling video.  Were you ever personally threatened in any of these encounters? 

HANSEN:  Nothing serious.  I think as you saw, the rabbi became upset and agitated, but it wasn‘t, you know...

UNIDENTIFIED MALE:  I guess they‘re so shocked they can‘t respond...

HANSEN:  Well I think a couple of things happened.  One, obviously we‘ve got the element of surprise in these investigations.  Two, and I‘ve seen this more and more as we‘ve continued, I think some of these people have wanted to get help for some time, and are almost relieved that they‘re caught.  And I think because I‘m genuinely curious to know what these guys are thinking...

UNIDENTIFIED MALE:  Yes.

HANSEN:  ... that they sometimes want to get it off their chest.

UNIDENTIFIED MALE:  Well short of shutting these social Web sites down, can you think of any safeguards we can put on there?

HANSEN:  It‘s really—I think it really comes down to a parent having a realistic approach to this with their child.  I once—in the first investigation I had a group of kids—probably 9 or 10, all 12 years old—and I said how many of you, show of hands, has had an uncomfortable, sexually charged contact on the Internet from a stranger, almost all of them raised their hands.  I said how many told your parents?  None.  They‘re looking at the ground.  They‘re kicking their feet.  And I said well why not?  They said we‘re afraid they‘re going to take the computer away.

REP. BART STUPAK (D), MICHIGAN:  Is there something—any suggestions you would have for the ISPs coming up next?

HANSEN:  Well I‘m not here to you know take a policy position for the ISPs or any legislation or self-regulation.  But I can tell you this, that in our experience, it is not uncommon for one of these guys who shows up at our house...

UNIDENTIFIED MALE:  Right.

HANSEN:  ... to have a pattern that starts with, you know, viewing pornography online, getting in to graphic chats and having an obsession or a compulsion that will ultimately lead him to try to meet a teen in person. 

UNIDENTIFIED MALE:  Talk to me about the relationship with law enforcement.

HANSEN:  Perverted Justice was contacted by the Riverside County Sheriff‘s Department and they said look, if you‘re willing to work with us, we‘re willing to work with you.  And if “Dateline” wants to do their parallel investigation, you know that‘s fine, too.  And obviously you know we don‘t want to be an arm of law enforcement...

(CROSSTALK)

HANSEN:  ... and law enforcement doesn‘t want to be an arm of journalism.

REP. CLIFF STEARNS ®, FLORIDA:  When your group set up this—these chat rooms, are there chat rooms that almost everybody in this country knows about? 

(CROSSTALK)

STEARNS:  How do you find which chat room to go to or even which one to concentrate on?

HANSEN:  The—you know the vast majority of the cases it‘s just regular old, you know regional chat rooms, you know accessible through AOL or Yahoo!.

UNIDENTIFIED MALE:  So you went to AOL...

HANSEN:  And there are other ones, too.  I mean you know Perverted Justice, you know, sort of have a sense where you know there will be a lot of people, where a lot of people from different walks of life will see this profile, which contains a picture of a boy or girl that‘s unmistakably underage.  And you know they just sit there and wait and you know you‘ll see a hey, what‘s up and what‘s going on and how old are you.  You‘re way too young and you know then it goes on from there. 

UNIDENTIFIED MALE:  Did you have any sense of different approaches taken by sites that may work or may not work? 

HANSEN:  I think the best approach is the approach at home, from a parent to a child. 

(END VIDEO CLIP)   

MORET:  After Hansen‘s testimony, the House Subcommittee questioned representatives from AOL, EarthLink, Yahoo!, Google and Microsoft, as well as Verizon and Comcast about how to make the Internet safe for kids.  Several of the companies pledged $1 million to jointly build a database of child pornography images and develop other tools to help network operators and law enforcement better prevent distribution of those images. 

Coming up, police say this husband allowed his wife to drive off a cliff with their children in the car.  Should he ever be allowed to see his kids again?  He was just released from a psychiatric hospital yesterday. 

And later, are prosecutors unfairly going after Rush Limbaugh after a bottle of Viagra was found in his suitcase?

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 Wisconsin. 

Police are looking for Marvin Waldrop.  He‘s 43 years old, five-foot-eleven, weighs 173 pounds.  He was convicted of second-degree sexual assault of a child and has not registered his address with the state.  If you have any information on his whereabouts, please call the Wisconsin State Police at 608-240-5830.  We‘ll be right back.

(COMMERCIAL BREAK)

(NEWS BREAK) 

MORET:  The New York father accused of letting his wife drive her car over a cliff with their two small children in the back seat is free for the moment at least.  Victor Han was released from a psychiatric hospital yesterday.  He‘s already pleaded not guilty to promoting a suicide attempt, reckless endangerment and endangering his children.  But he has not yet had a reunion with his 3 and 5-year-old daughters who survived the crash.

They‘ve been staying with relatives.  The question that many people are now asking, whether he should be allowed to be with them.  We‘ll debate that in a moment, but first, Maureen Seaberg is a reporter for “The Daily News”, who‘s been following this story from the beginning.  She joins me now.  Maureen, thanks for joining us.  What is the latest?  What‘s happening with the children, and is there a reunion imminent? 

MAUREEN SEABERG, “NEW YORK DAILY NEWS”:  I would not say imminent.  In fact, I just got off the phone with one of Victor‘s best friends, an elder at his church, by the name of Youn-Youn (ph), and he says that Victor is very sad today, because he has not been allowed to see the two girls.  I have been to the aunt‘s home where the children are staying, and the aunt who is Hejin‘s own sister, actually says that the girls are asking for their father and want to see him.  You need King Solomon for this one.

MORET:  What are the funeral plans right now and will he be going to the funeral?  Will the children be going?

SEABERG:  Yes, Victor will be going to the funeral.  I‘m on my way there, to Flushing, after I leave all of you.  And the children, it‘s been decided by the family members that they should not be there.  I don‘t know if it‘s the glare of the media or just the heartbreak, but they will be minded by a great aunt while the rest of their family goes. 

MORET:  Maureen, one of the elements complicating this matter is the allegation that the father had a mistress. 

(CROSSTALK)

MORET:  Any more information on that? 

SEABERG:  Well, I like to call her the cop-smacking mistress from hell, because this is not a sweet, innocent shrinking violet, but a woman who had a desk appearance in Queens recently for smacking a New York City police officer during a parking dispute.  I‘ve been all over Flushing looking for her and friends tell me that she‘s hiding in a hotel.  She does not want to face the media.

MORET:  Maureen, the children are young.  They‘re 3 and five years old.  You said they‘re not going to the funeral.  Do they in fact know that their mom is dead?

SEABERG:  Yes, they do.  I mean as much as you can explain death to someone that small.  This is a very Christian family and what the little girls know from Sunday School is that there is a place called heaven.  And when they ask where‘s mommy, their lovely aunt, Hajan (ph), tells them she‘s in heaven.

MORET:  Maureen Seaberg, thank you very much for joining us. 

SEABERG:  Thank you for having me.

MORET:  Now to debate whether Victor Han should be allowed to see his children is former prosecutor and MSNBC analyst Susan Filan and defense attorney Jonna Spilbor.  Susan, you‘re a mom.  What do you think?  How do you weigh in on this?

FILAN:  No.  Absolutely not.  Look what he‘s charged with.  Of course he‘s presumed innocent, but look what he‘s accused of.  He‘s accused of basically aiding and abetting a suicide, in which his wife plunges to her death in a minivan with her children trapped—strapped into their car seats.  Allegedly, they would have plunged to their death.

Miraculously they survived.  Why should the man that allegedly put them in such grave harm now have access to them?  He‘s shown, he‘s demonstrated if the allegations are true, he cannot properly care for them.  And whatever their difficulties in coping with this situation are created by him, for having the affair, the cell phone goes off, she—the poor deceased mom learns of it right before she plunges to her death. 

No, this guy put this in motion.  He needs to be kept away from these children.  These children need now another appropriate adult to help them cope and to help them learn and to help them grow.  But boy, you know, they‘ve lost both parents now, at his own doing, I would argue. 

MORET:  Jonna look, I‘m a dad, OK, and part of me says this man should not be allowed to see his kids.  However, let‘s put some context and let‘s put some facts around this case.  This man allegedly believed or had heard from his wife she wanted to kill herself.  He said they were driving in the scenic area.  His wife says go out take a picture.  He says he does that.  She then jumps into the driver‘s seat, takes off.  He grabs on to the bumper, so it‘s not as if he simply allowed them to go over you would argue.  Should he be allowed to see his kids? 

SPILBOR:  I don‘t see how the court can prevent him from seeing his kids

based on those facts and there are more facts that came out where this man

his defense is basically she said she was unhappy and wanted to commit suicide, but in my culture, in the Korean culture that‘s like when an American says I‘m so mad I could just kill you.  It‘s really rhetoric.  It‘s hyperbole.

So in his mind he had no idea that she was going to take her two children, now that‘s a crime, and step on the gas.  This isn‘t a case where she was on a ledge and he said come on honey, jump.  He didn‘t put his foot on the bumper and say let me give you some help.  He got out of the car and took a picture.  And if that‘s all he did, he‘s done nothing wrong. 

MORET:  Well, Susan, what do you make of that?  Because obviously this man has talked to his pastor and he said you know I heard her saying she wanted to kill herself.  I thought she was simply upset, perhaps about this affair that he was having.  I didn‘t really believe that at that moment she would try to drive over the cliff, even—especially rather with our kids in the car.  So do you think that it‘s possible that he‘s telling the truth? 

FILAN:  When did he talk to the pastor?  He talked to the pastor way after he spoke to the police.  He gave a very, very lengthy interview to the police.  I think it lasted anywhere from eight to 12 hours.  I don‘t believe that the police came up with this idea that he participated in her suicide all by themselves.  I think it came quite clearly from the results of that interrogation. 

I haven‘t seen them.  I‘m guessing.  I‘m speculating, but here‘s what I think he said.  I think in his grief, I think in his guilt, I think in his pain, I think in his agony, he told the truth then.  And the story he probably told was she got a call on her cell phone, it was his mistress, she was distraught.  He wanted out of this marriage.  He was just done with the whole thing.

She said I‘m going to kill myself and he said go ahead.  I‘m sick of you saying it.  Go ahead.  And it had something to do with that.  And it went along those lines.  No, I don‘t think he pushed her over the cliff, but I think it was his callus indifference to her feelings.  It was the conversation that they probably had before she died that gave him the idea that she was serious and gave him the idea you know what, maybe this is the perfect out. 

It‘s sure cheaper than a divorce and nobody is going to charge me with murder.  This is not a guy, as sorry as I feel for him, and as sad it is for these kids, that he should have anything to do with these kids.  He should have thought about these kids long before he started cheating on his wife and drove her to her death.

MORET:  Let‘s look at a portion of the deposition.  Hejin said we can‘t leave without taking at least one photo.  This is the drive they were taking and the scenic route.  We went back to where we saw the three kids and Hejin said how about here.  She also said don‘t I always take care of you.  I then got out of the car and went up the hill.  I turned around, saw Hejin in the middle of the car, and the car was going. 

The car was turned and going toward the cliff.  I hesitated, then reacted, and I ran to the car and screamed stop the car.  Stop the car.  I tried grabbing at the car, but could not grab anything.  I see the car going down, rolling.  I hear screams.  It stops and I see a puff of smoke.

Jonna, a horrible nightmare in anyone‘s book.  Does that indicate to you, that statement indicate that he did not know that his wife was going to try to commit suicide, that he tried to make an effort to save his wife and his children? 

SPILBOR:  It sure sounds that way.  And the law is not going to impose a duty on him to automatically become a psychic.  And we don‘t know if during that eight or 10-hour interrogation, where I‘m hoping there was a Korean interpreter or a Korean cop in the room, that he might not have started to blame himself.  I mean if somebody close to you committed suicide, Jim, you‘re going to blame yourself.  Why didn‘t I see the signs?  Why didn‘t I see this?  Oh, maybe she did say she was going to kill herself.  That‘s all internalizing, mourning, and that‘s something for a psychiatrist to examine, not a cop. 

MORET:  Susan, one element that‘s frankly surprising is this woman‘s parents say they‘ve—we‘ve already lost a daughter.  We don‘t want to lose a son as well.  Let him see his kids and presumably they‘re not even pushing for charges to be filed.  What do you think should happen in this case?  It‘s really not so cut and dry, is it?

FILAN:  Well, nothing‘s ever cut and dry.  There‘s always two sides to every story.  This is certainly you know one of those cases where people are going to scratch their heads and say how could they bring these charges, how can this be proven, how is he supposed to look inside her mind.  But I‘ve got to tell you, if you‘ve ever been married for more than five minutes, you know—that you know that person better than anybody else in the world.  You can finish each other‘s sentences.  You can almost put yourself in their shoes. 

I mean it‘s like, you know, one person in two bodies after a while.  So I don‘t find it difficult at all to think that he knew exactly where she was coming from.  He knew exactly what she was thinking, and don‘t forget, he set it in motion by having this affair and the mistress calling on the cell phone right before she plunged to her death.   What do I make of the parents?  They sound like absolutely lovely people. 

I am so sorry for their grief and their pain, but they don‘t drive what‘s going to happen in this case both in terms of the prosecution and in terms of the family court as to what should happen to these children.  Certainly their wishes will be taken into consideration.  But a court is going to have to determine based on the best interests of the children, and if it can be proven that this dad set his wife‘s—these children‘s mom‘s death in motion, you can‘t tell me that he‘s the best person now to look after these kids.  What if the mistress doesn‘t like the kids?  It‘s a drag to have these little kids around.  He sets them to their death, because they‘re in the way like his poor deceased wife. 

MORET:  Susan, you‘re on a roll.  We have to stop.  Yes, Jonna, you‘re saved by the bell on this one.

(CROSSTALK)

MORET:  Thanks to both of you for your insights.

Coming up, did conservative talk show host Rush Limbaugh violate a deal with prosecutors after being caught with a bottle of Viagra prescribed in someone else‘s name or are prosecutors being too tough on him? 

And for the first time, the judge who was allegedly shot by a man angry over his divorce speaks to reporters.  He tells us what happened in his own words. 

(COMMERCIAL BREAK)

MORET:  Coming up, are prosecutors unfairly going after Rush Limbaugh after finding a bottle of Viagra prescribed to someone else in his suitcase?  The details right after the break.

(COMMERCIAL BREAK)

MORET:  After eluding authorities for 11 days, Darren Mack, the man accused of stabbing his wife to death and then shooting the family court judge presiding over their divorce was in court yesterday.  Today the judge who Mack is accused of shooting, Judge Chuck Weller, spoke out about the incident for the first time. 

(BEGIN VIDEO CLIP)

CHUCK WELLER, RENO, NV FAMILY COURT JUDGE:  Since the criminal case has been filed in this—in relation to these events, I‘m fairly limited on what I‘m allowed to say.  But generally I can tell you that I was in chambers, with my administrative assistant, Annie Allison, and I was shot in the chest.  I dropped to the ground.  Annie got out of the room.  I started on the way to the door.  I believe the door opened. 

I believe a bailiff entered the courtroom and helped me get out.  I can tell you that I have five entrance wounds.  I‘d be speculating on the number of bullets.  I think there was more than one. 

UNIDENTIFIED MALE:  How is your health?

WELLER:  I‘m healing.  I think I‘m going to be 100 percent.  I‘m not right now.  I‘m healing.  I think I will be.  There—as you can imagine there were many sightings of the suspect—and I want to call him the suspect, because I believe completely—I‘ve given my life to the justice system, and Mr. Mack is entitled to all of the protections that our system affords.  I heard about his arrest the next morning, and I was pleased to know that the suspect was apprehended and that perhaps the immediate danger was gone. 

(END VIDEO CLIP)

MORET:  Judge Chuck Weller speaking out for the first time since he was shot on June 12.  He expects to be back at work soon, after his wounds are healed. 

Coming up, are prosecutors being too tough on conservative talk show host Rush Limbaugh after he was caught with a bottle of Viagra prescribed in someone else‘s name?  Details coming up next. 

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

Police need your help finding Jose Romero.  He‘s 31 years old, five-foot-five, weighs 150 pounds.  He was convicted of first-degree sexual assault of a child and has not registered his address with the state.  If you have any information on his whereabouts, please call the Wisconsin State Police at 608-240-5830.  We‘ll be right back.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

RUSH LIMBAUGH, TALK SHOW HOST:  People at customs were nice as they could be.  They just didn‘t believe me when I told them that I got those pills at the Clinton Library Gift Shop.  And they told me that the Clinton Library Gift Shop that there were just blue M&M.

(END VIDEO CLIP)

MORET:  Conservative radio show host Rush Limbaugh joked on his syndicated show about the three hours he spent Monday detained by customs officials at Palm Beach International Airport after they found 29 little blue Viagra pills in Limbaugh‘s bag.  Pills that were prescribed to someone else.  Now could Rush be back in trouble with Florida prosecutors who agreed to a deal that let him avoid criminal prosecution?  That was in a case involving OxyContin painkillers.  Customs spokesman Zachary Mann says—quote—“We believe there might be a violation of state statute, but it will be up to the state attorney‘s office to make that final determination.”

But Limbaugh‘s attorney, Roy Black, insists there was no violation and says the Viagra—quote—“had been prescribed by Mr. Limbaugh‘s treating physician, but labeled as being issued to the physician rather than Mr.  Limbaugh for privacy purposes.” 

Michelle Suskauer is a Florida criminal defense attorney joining us now. 

Thank you very much. 

(CROSSTALK)

MORET:  What‘s your view on this?  I mean we make light of this being that little blue pill and all, but Rush Limbaugh faced some serious charges and struck a plea deal.  Does this violate that plea deal in your view?

MICHELLE SUSKAUER, CRIMINAL DEFENSE ATTORNEY:  Well, it very well could violate the plea deal.  The question is, is the state attorney‘s office going to do anything about it.  This was a plea deal, called a pretrial intervention and it was an agreement just with the state and it really didn‘t have to go before the court.  It is on their absentee docket, so it‘s completely discretionary and the state attorney‘s office I know is looking at it, but it‘s just going to be a question of whether they feel it‘s serious enough to send this whole case back to basically square one and back into court.  And I really don‘t think that they‘re going to violate him and send him back, I really don‘t. 

MORET:  When you talk about it being serious enough, let‘s face it OxyContin is in a different category and class than Viagra and frankly just talking around the office, there‘s a difference when you talk to men and women about the subject.  And men all joke about it in a very different way, but do you think that Rush Limbaugh is being treated differently because he‘s a celebrity or would I in a similar circumstance be treated the same way? 

SUSKAUER:  Well I think he wants to be treated differently because he‘s a celebrity.  It seems like he wants to be above the law, that he didn‘t want to be prosecuted in the first place, because it was an addiction, like anybody else would be prosecuted and that he should have—be able to hide the fact that he‘s on Viagra by getting his doctor to give him a prescription in the doctor‘s name.  Now I‘m sure there are a lot of men that take Viagra that don‘t want anybody else to know that whether they‘re celebrities or not, so does that make it right just because Rush Limbaugh is embarrassed, so it really doesn‘t. 

(CROSSTALK)

SUSKAUER:  I mean you know he doesn‘t want anybody else to know.  Well now everybody knows obviously and he was making light of it, but the fact is, is that if you have—if you obtain a prescription by fraud, whether it‘s a controlled substance, like OxyContin, or whether it‘s just a regular prescription, like Viagra, it‘s still a third-degree felony in Florida, punishable by up to five years in prison.  Does that mean that he‘s going to be prosecuted?  No, probably not. 

But it‘s still a felony and the doctor himself or herself is still up to possibly be charged as well, because they‘re committing a fraud just like Rush Limbaugh is, a fraud because they‘re giving a prescription in their own name, whether it‘s for the, you know, the good purpose of trying to protect his privacy.  They‘re perpetrating a fraud on the pharmacy, because they‘re having it filled for the doctor allegedly as opposed to Rush Limbaugh and possibly on an insurance company as well.  So there are several layers here. 

MORET:  And do you think it will be resolved quickly? 

SUSKAUER:  I think absolutely nothing is going to happen to Rush Limbaugh. 

(CROSSTALK)

SUSKAUER:  Absolutely nothing at all... 

MORET:  Michelle Suskauer, thank you very much for your time.

SUSKAUER:  Sure. 

MORET:  Coming up, your e-mails about me.  Stay tuned. 

(CROSSTALK)

MORET:  Time now for “Your Rebuttal”.  Today‘s e-mails were overwhelming.  You all focused in on one topic.  Was it the Duke case?  No.  The casino shooting?  Guess again.  Anna Nicole Smith?  Not even close.  Today‘s hot topic was me.

Bill Shirley from Troy, Alabama—quote—“Now that Dan will not host the show anymore, I will have to reevaluate whether or not I will continue watching it.  Today Jim Moret is hosting THE ABRAMS REPORT.  If you could make Jim the permanent host of the show, I will definitely continue watching it.  I‘ve enjoyed Jim‘s reporting all the way back to the days of the O.J. trial.”

Bill, my mom and my wife thank you.  Anything for you.  Any other demands by the way?

Joy Adams from Garland, Texas, “Dan, Jim Moret is a hit.  It‘s time you start talking to him about coming to MSNBC for the new ‘Moret Report‘.”  Oh, “The Moret Report”, that has a good ring to it.

Jackie Schumacher from Norristown, Pennsylvania, “Jim Moret is my vote so far.  If I can‘t have Dan (UNINTELLIGIBLE) I guess I‘ll have to settle for someone else—ouch.  Just don‘t make it someone loud and obnoxious.  Please.”  I promise, I won‘t.

And Bonni Champlin from Sarasota, Florida, “Wow, I was thrilled to see Jim Moret doing the show today.  I‘ve always thought he was exceptional.  Here‘s my suggestion.  ‘The Legal Report with Jim Moret‘ permanently.  He‘s good looking, sharp and has lots of credibility.  Improve the backdrop you‘re using, though.  Too dead and boring.  And this show will be a big hit, trust me.” 

Bonni, Carol, our director, is working on this.  What do you think? 

OK, we‘ll give it a thought. 

Send your e-mails to the abramsreport—one word—abramsreport@msnbc.com

I‘m Jim Moret from “Inside Edition”.  Thank you so much for watching.

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

END   

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

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