updated 8/15/2007 11:37:22 AM ET 2007-08-15T15:37:22

Guests: Jeff Goodell, Chip Yost, Paul Pfingst, Steve Wyche

DAN ABRAMS, HOST:  First, breaking news tonight in Utah right now, the desperate search for six trapped miners continues.  Rescuers are now drilling a third hole into the mountainside, focusing on the rear of the mine.  You‘re looking at new video tonight of workers reinforcing the mine shaft so crews can dig toward the area where the miners might be.  It was taken by the co-owner of the mine, Bob Murray.  This is day nine since these six men were last seen alive.

NBC‘s Jennifer London is live in Huntington, Utah.  Jennifer, what is the latest on the progress?

JENNIFER LONDON, NBC CORRESPONDENT:  Well, Dan, as you mentioned, we did have some new video released today.  It was taken in the early morning hours.  And it does show the rescue operation as the work crews try and clear the mine‘s main entrance.  The video shows the crews working behind this very heavy machine.  It‘s called a continuous mining machine, and it is really doing the heavy lifting.  It is trying to clear out that main tunnel that is just choked with coal and thick soil and fallen rocks, and it carries out about eight tons of material per load, and then, Dan, it brings in steel props and timber.  And the hand crews work behind this machine and try and shore up the ceiling.

And when you see this video, you really do get a good perspective of just how dangerous it is inside this mine and the conditions that these rescue crews are having to work under.  The tunnel is very narrow, it is very dark, and the ground there and the earth around them is very unstable.

And progress, Dan, has been painstakingly slow.  We were told today that so far, the men have advanced about 700 feet.  Dan, they still have about 1,300 to go before they get to that chamber where they believe the men are located.

ABRAMS:  Jennifer, just so people at home understand how urgent the rescue teams are treating this, they are still working around the clock.  They are still working frantically.  They are still holding out hope, are they not, that these men are going to be found alive?

LONDON:  Dan, certainly, they are holding out hope.  That is why they continue this around-the-clock effort, which is just exhausting for all of the rescue teams.  They‘ve got 134 men working in crews and shifts.  And yes, they are going around the clock.

And we also had some news today about the efforts with regard to the third bore hole that is being drilled from the surface.  We understand that progress on that is going better than the underground progress.  They say that they‘re about a third of the way down.  Dan, they are trying to reach a target of about 1,400 feet.  They believe that this might be an area where the men fled when their the escape route was cut off by the collapse.  They hope that the force of the collapse may have pushed breathable air deeper into the mine and the men may have fled and barricaded themselves in that chamber.  So they‘re drilling this third hole about 1,000 feet deeper into the mine, and that is when they are really hoping to learn what happened to these six men.

Dan, keep in mind, they have already drilled two other holes.  One they lowered a two-way microphone listening device, heard nothing, only since.  Then in the second hole, three times they lowered a high-resolution camera.  It showed some mining equipment, but again, no signs of the men.  And they say if they don‘t have success with this third hole, preparations are under way to begin drilling a fourth hole.

ABRAMS:  All right.  Jennifer London, thanks a lot.  Appreciate it.

The families of the missing miners waiting anxiously tonight, probably keeping the words of the mine owner front and center.

(BEGIN VIDEO CLIP)

BOB MURRAY, MINE CO-OWNER:  I want to emphasize that there are many, many reasons to have hope still.  There are many reasons why one would believe that they still may be alive.

(END VIDEO CLIP)

ABRAMS:  Jeff Goodell has written two books on coal mining.  Jeff joins us here.  Thanks a lot.  I appreciate it.  All right.  First, let‘s talk about the reasons that they—we may be able to hold out hope.  Lay out the scenario whereby they have survived and they are still down there, waiting for the rescuers to arrive.

JEFF GOODELL, AUTHOR, “BIG COAL”:  Well, one of the things that we‘ve learned about the way this collapse happened is it looks like a lot of the coal that came into this tunnel in this collapse happened in the front of the tunnel.  And there‘s what‘s been described as “survivable space” down at the face of the coal seam, where the guys were working.

So the notion is perhaps these guys got into this survivable space and somehow some fresh air has gotten in there.  In fact, they might even have blown air down into that area.  We know from the video that we were just looking at, you can see water dripping down.  So they have drinkable water, which is a really big issue.  And you know, food is not an issue yet.  And if they can get this third hole in in time, in the next day or so, begin to get—make some kind of contact with these guys and send in some food, you know, there‘s still hope, in that sense.

ABRAMS:  And I understand that you believe that that is a long shot, but let me lay out some of the other cases in history where—we‘re at day nine here.  May 2006, two miners in Australia rescued after being trapped for 14 days.  November 2005, coal miner, northern China, 11 days.  July 1996, three miners, eight days trapped in a flooded mine.  January 1983, 23 days in northeast China.  September 1982, 14 days.  In 1968, six miners rescued after 10 days.

So there is precedent for surviving nine-plus days.

GOODELL:  Yes.  I mean, anyone who looks at the history of coal mining tragedies and collapses like this, you know, it‘s just remarkable what happens, these stories.  First of all, these miners are really, really tough.  And second of all, the geology of this underground spaces and what happens down there, it‘s impossible to predict.  No one knows exactly what the dynamics of this collapse were and where there are cavities and where there are not.  That‘s why they are not giving up hope.  These guys have, like, a kind of Marine-like bond, and they are not going to stop or slow down this rescue one bit until they find these guys.

ABRAMS:  All right.  Jeff Goodell, thanks a lot.  Appreciate it.

GOODELL:  Thanks for having me.

ABRAMS:  Busted is another story we‘re doing here.  Notorious pedophile blogger Jack McClellan arrested not once but twice yesterday, first for violating a statewide restraining order requiring him to stay away from all children in the state of California.  Just weeks ago, McClellan had vowed on this program that he was going to quit taking pictures of little girls and posting them on Internet.

(BEGIN VIDEO CLIP)

JACK MCCLELLAN, “PEDOPHILE BLOGGER”:  Yes, I want to make this clear.  I‘m definitely not going to go to these events, and I‘m not going to be taking pictures where I‘m focusing on girls or going back to the computer at home and cropping them out to focus on girls.  I‘m not doing that anymore at all.

(END VIDEO CLIP)

ABRAMS:  So what was he doing with a camera in the lobby of a child development center?  Police immediately arrested the self-proclaimed pedophile, but things didn‘t stop there.  He returned to the UCLA campus for a TV interview.  He was arrested again, this time for trespassing.

(BEGIN VIDEO CLIP)

MCCLELLAN:  Oh, man!

CHIP YOST, KTLA-TV LOS ANGELES:  What‘s he being arrested for?

MCCLELLAN:  I didn‘t know (INAUDIBLE) this is UCLA property.  Oh, yes. 

I didn‘t think it was.

YOST:  You‘re not allowed to be on UCLA property?

MCCLELLAN:  Yes, they‘re going to take me again for another violation.

(END VIDEO CLIP)

ABRAMS:  The reporter interviewing McClellan when he was arrested joins us now, Chip Yost from LA station KTLA.  Chip, thanks a lot for coming on.  We appreciate it.  All right, so let me ask you about what he was doing there, all right?  There seems to be some misunderstanding about what it was he was doing there when you interviewed him.

YOST:  Well, what happened was, is I had had his phone number.  We did a story on him a week ago.  There was a city, Santa Clarita, which is just north of Los Angeles, had a town hall meeting about him because there had been a sighting of him there.  I had gotten his phone number at that meeting from somebody.  I tried to call him last week, couldn‘t get ahold of him.

So when we got everything done for our live shot at 10:00 o‘clock, it was about 9:20 or so, 40 minutes until the live shot, I tried calling him again.  And he picked up, and it turns out he was just a couple miles away.  I said, Hey, we‘re doing this story on you.  He seemed eager to get his side out.  I said, We‘re right over here at Veterans and Wilshire, which is the corner we were at.  And he came over.  I drove him in, kind of gave him directions, he came over and we talked to him.  And he was very willing.  He got there about 10 minutes before the live shot.

ABRAMS:  All right.  And so then he‘s arrested.  You watched the arrest.  Your cameras catch it.  This time, it‘s for trespassing, right?

YOST:  Yes.  What happened, we‘re doing the interview, and we got done with the live interview, so we went to a taped interview.  I figured he‘s here, let‘s see what other questions we can get out of him.  We started doing a taped interview.

While we were doing the taped interview, about five police cars pulled into the parking lot where we were at.  He kind of glanced over, made a comment about it.  I noticed it, too.  I figured maybe they were there just to intimidate him or make sure that, you know, he didn‘t go onto campus.  But as soon as the interview was done—they sat around and waited, the officers—as soon as it was done, they asked him to come over, told him he was under arrest for trespassing.

ABRAMS:  All right.  So this is now the second time he‘s been arrested in the day.  Let me—I want to play a little piece of sound from you asking him questions about his first arrest.  Let‘s listen.

(BEGIN VIDEO CLIP)

YOST:  Why did you have your camera with you?

MCCLELLAN:  I always carry it with me because I don‘t want to get it ripped off.

YOST:  Were you taking pictures of kids today?

MCCLELLAN:  No.  There weren‘t any—even any batteries in it, as the police probably noted, so no.

YOST:  Jack, what are you going to do now?  You‘re homeless.  You said you‘re living out of your car.  People want to see you off the street.  You heard them in the story.  They want to see you off the street.  They think you‘re a dangerous person.

MCCLELLAN:  Well, obviously, I don‘t.  I‘m trying to obey this order, but it‘s—it‘s...

YOST:  Are you attracted to children?

MCCLELLAN:  Yes, sure, girls.   I mean, admitted that many times.

(END VIDEO CLIP)

ABRAMS:  Good thing he clarified that, Chip, that he didn‘t mean boys, he meant young girls that he‘s attracted to.  Good thing that he was able to—to get that out there.  You were asking him about this camera.  Have the authorities confirmed that there were no batteries in his camera?

YOST:  No, actually, I have that question in with UCLA police right now.  Haven‘t heard back.  They haven‘t confirmed it to this point.  And also, one more comment on what he said there.  Later on, when we did the taped interview, I asked him, OK, you‘re saying that you‘re safe, you‘re not a danger to the community.  Are you saying you would never molest a child, if given the opportunity?  His answer was no.  He said he can‘t—I think the exact quote was actually, “Never say never.”  But he said he was 99 percent sure he would never molest...

ABRAMS:  Yes, he has a hard time—when I interviewed him, he just couldn‘t say, I‘ll stop doing this.

Let me play one more piece of sound.  Again, this is you questioning him about his first arrest.

(BEGIN VIDEO CLIP)

YOST:  Jack, the question that comes to mind is what in the world were you doing outside of that infant development center?

MCCLELLAN:  Honestly, I didn‘t know it was there.  I mean, I...

YOST:  Oh, come on.  Come on.

MCCLELLAN:  No, I‘m serious.  The reason I was on UCLA was because I didn‘t think there would be virtually any minors there, and I thought I could kind of blend in as a student and...

YOST:  Jack, we were there.  We saw signs all over the place that say infant development.

MCCLELLAN:  I—all I can do is reiterate...

(END VIDEO CLIP)

ABRAMS:  Real quick, Jeff.  How clear is it that—when you go there, that it‘s an infant development center?

YOST:  Well, we went in there.  Our photographer did.  And there were signs all over the place that say infant development center.  There‘s a playground outside, which isn‘t typical to see on a college campus.  So we even asked the police department, the officer that did the interview, Is there any way he would not have known that he was in violation of his restraining order?  And he said, no, he couldn‘t see how he would not have known he was in violation.

ABRAMS:  Chip Yost, KTLA, thanks a lot.  Appreciate it.

YOST:  Thanks for having me.

ABRAMS:  Let‘s bring in former California prosecutor Paul Pfingst.  All right, Paul, they arrest this guy in two days.  He‘s going to get—he‘s going to keep getting released.  And my guess is that if he actually gets a lawyer and challenges this, a court may declare this judge‘s order unconstitutional.

PAUL PFINGST, FORMER CALIFORNIA PROSECUTOR:  That‘s right.  I mean, the order, the restraining order is so broad and so expansive that it‘s going to be tested.  And if it‘s tested, it may actually fail because it is so broad.  And it may provide a situation where there was no place in the state of California for him to live.  And so a public defender could go in and a public defender could challenge it and possibly win.

ABRAMS:  And so how do you—What do you do, Paul?  I mean, so far—now they‘re finally making this guy‘s life difficult.  He‘s been testing everyone.  He‘s been prodding everyone.  He‘s been saying, effectively, Oh, you know, I don‘t—I don‘t do anything illegal, but you know what?  I like young girls.  And I‘m not saying I‘m not going to post anything else.  What can you do to stop him?

PFINGST:  You know, Dan, I‘d like to even say that the trespassing case looks good, but even that is very weak because there‘s an intent, there‘s a knowledge requirement in order to trespass.  And as the reporter just said, it‘s entirely possible he had no idea that he was on UCLA property.  So even that case may fall apart.  And even if he was convicted on that case, we all remember from Paris Hilton and Lindsay Lohan how little room there is in the LA County jail, so there‘s very little chance he would spend any time behind bars.  So he may get a pass on this whole thing.

ABRAMS:  Really quickly, here‘s what McClellan said on this program about the legality of what he does.

(BEGIN VIDEO CLIP)

MCCLELLAN:  I‘ve never done anything illegal with a child.  And all I can really speak is for myself.  I have a feeling that there‘s this kind of what I term the silent majority of pedophiles out there who are like me.  They don‘t do anything illegal, but maybe they would if it was legal.

(END VIDEO CLIP)

ABRAMS:  A silent majority of pedophiles, he likes to call it, so he‘s going to get quoted in the quotes of the week, Paul.  But bottom line is that it‘s tough to get this guy, but I‘m sure that there are ways to craft particular laws that target some of the people that he posts on a Web site.

PFINGST:  Yes, that‘s true, Dan, except there is one thing that we will never get around.  Our system of justice is based upon the fact that you‘re innocent until proven guilty.  And the fact that you may commit a crime in the future is not something that under the American system of justice you can be incarcerated for.  So our system requires, actually, before you get punished, that you commit a crime.

ABRAMS:  If Paul Pfingst, the former tough San Diego DA is saying that, this could mean trouble for keeping this guy behind bars.

PFINGST:  Yes.

ABRAMS:  Paul, good to see you.  Thanks.

PFINGST:  Sure, Dan.

ABRAMS:  Up next, breaking news that has just come to us.  The ref at the center of the NBA gambling scandal is now ready to plead guilty.

Plus, NFL star Michael Vick reportedly considering a plea deal, but pleading guilty to dog fighting charges could certainly mean the end of his football career.  We‘ve got that coming up.

And later: Mary Winkler, the woman who shot her minister husband in the back while he was sleeping, now a free woman after serving less than six months behind bars.  Huh?  Her attorneys join us to try to explain this one.

(COMMERCIAL BREAK)

ABRAMS:  Tonight we‘ve just learned that former NBA referee Tim Donaghy plans to plead guilty in federal court in Brooklyn tomorrow to charges that he bet  on basketball games for the past two seasons, including ones he officiated.  The FBI‘s investigating the case to see if there are connections to organized crime.  Law enforcement officials say the bets involved thousands of dollars. Donaghy resigned from the NBA July 9.

Let‘s bring in MSNBC senior legal analyst Susan Filan.  All right. 

Susan, real quick, what does this mean?

SUSAN FILAN, MSNBC SENIOR LEGAL ANALYST:  Yes, I think, Dan, it means he‘s cooperating.  Basically, they‘re going to use him to trade up, go after larger targets.  They want to see how deep into the NBA is this.  How infiltrated into this is this corruption?  And he‘s going to be a key player in this.  He‘s going to be punished, but he‘s also going to get the benefit for cooperation.

ABRAMS:  All right.  And tonight, reports say NFL star Michael Vick‘s attorneys are engaged in high-stakes plea negotiations with federal prosecutors.  Vick reportedly could plead guilty by the end of the week, “The Atlanta Journal- Constitution” reporting tonight that Vick has until Friday to reach a plea agreement, which would likely include prison time.  If he doesn‘t, the government reportedly ready to level a new round of dog fighting charges against him.  Already, one of Vick‘s co-defendants has pled guilty, telling federal prosecutors the dog fighting operation was almost exclusively funded by Vick.  Later this week, two remaining co-defendants are also expected to plead guilty, opening the door for them to testify.

Joining us now on the phone, “Atlanta Journal-Constitution” sports reporter Steve Wyche, and still with us is Susan Filan.  All right.  Steve, thanks for coming on.  We appreciate it.  How serious are these negotiations?

STEVE WYCHE, “ATLANTA JOURNAL-CONSTITUTION”:  Well, I mean, it‘s very serious.  Right now, it‘s mainly a lot of negotiating, but also information gathering to see what—you know, what the repercussions would be if they pled down to one case or pled guilty to another case.  You know, they‘re also trying to balance out how this would affect Michael Vick‘s playing career, if this would allow him or force him to miss time this season, next season or future years, depending on how the scales tip on the plea.

ABRAMS:  Steve, let me ask you that about that.  I mean, put aside the

what the prosecutors can or can‘t do.  What about the league?  I mean, if he pleads guilty to any of these felonies, is the league or the Falcons going to let him back?

WYCHE:  Well, I tell you, the league likely would suspend him probably for the season because, you know, you‘ve got these dog fighting charges.  There‘s some accusations of gambling involved in the indictment.  Now, whether that gambling would necessarily stick as part of the plea is another thing they could be hashing out because the gambling aspect of it could have more damaging ramifications as far as the NFL is concerned than the actual dog fighting.  So you know, in terms of whether the league is going to let him back or the Falcons are going to let him back, it‘ll be very interesting to see what he pleas to.  But you know, the NFL doesn‘t necessarily have to wait for the judicial system to play out.

ABRAMS:  Right.

WYCHE:  They have a player conduct policy that they could hand out punishment, suspend him, as well.

ABRAMS:  Susan, as a legal matter, the gambling charge is probably a stiffer sentences than the dog fighting charges, but it would seem to me, as a practical matter, if you‘re his lawyer, you‘ve got to stay to him, You cannot plead guilty to the dog fighting charges because the public simply will not accept him, I don‘t think, if he pleads guilty to any of the dog fighting.

FILAN:  Yes, except for—to say you cannot plead guilty to the dog fighting charges may be leading him astray.  Here‘s why.  The prosecutor is highly unlikely to drop that charge.  To advise him to not to plead guilty is putting him straight into the jaws of a trial.  At a trial, his co-defendants are going to testify and bury him.  Evidence is going to be introduced, bloody dog collars that are going to be photographed for all the world to see.  This is damage control, at this point.  He‘s got to cut his losses, step up to the plate, plead guilty and make the best deal he can.  If he doesn‘t want to do that, prosecutors have no incentive really to deal him down.  They can just go to trial and win.

ABRAMS:  And as Steve points out, the NFL, even if he doesn‘t plead and he pleads not guilty and he goes to trial, may still say, Look, you can‘t play right now until this trial is over.  So you know, he may not even be able to play in the meantime.

FILAN:  That‘s right.  And you know what?  He got beaten in the rat race to snitch.  He really should have been first one to go into the U.S.  attorney‘s office and say, Hey, what can I do to the other guys?  But they got first, and he‘s...

(CROSSTALK)

FILAN:  It‘s kind of like musical chairs.  He‘s left holding the bag.

ABRAMS:  But is it possible, Susan, that the prosecutors wanted their big, high- profile defendant last?  Is it possible that the—how does it work?  Do the prosecutors go to the attorneys or do the defense attorneys go to the prosecutors?

FILAN:  Usually, the minute an indictment comes down, everybody starts talking, and you can tell fairly quickly right away whether the defense is interested in trying to work this out or they‘re going to go to the mat or whether the prosecution thinks they‘ve got some weakness in their case and they‘re willing to see what‘s reasonable.  But prosecutors don‘t necessarily look for the most famous, they look for the most culpable.  They look for...

ABRAMS:  You hope so.

FILAN:  ... who‘s the biggest fish.

ABRAMS:  You hope so.  You hope so.  Look...

(CROSSTALK)

FILAN:  Oh, come on, Dan!

ABRAMS:  ... prosecutors.  I‘m hoping that they do.

All right.  Steve Wyche and Susan Filan, thanks a lot.  Susan‘s going to stick with us.

FILAN:  You bet.

ABRAMS:  Appreciate it.

Coming up: Mary Winkler free after serving just 67 additional days for the shooting death of her minister husband, a total of, like, seven-and-a-half months, including two months in a mental facility.  How did that happen?

But first: Geraldo talks to some not so superheroes,  coming up next in “Beat the Press.”

(COMMERCIAL BREAK)

ABRAMS:  Time for tonight‘s “Beat the Press, our daily look back at the absurd and sometimes amusing perils of live TV.  First up: My old friend Geraldo Rivera did an important interview with two men from the so-called World Wide Heroes Association, Citizen Prime and Chris Guardian (ph).  And before I go on, you may want to take the kids out of the room.  I don‘t want to ruin it for them.  One of the superheroes admitted he does not always work in costume.

(BEGIN VIDEO CLIP)

GERALDO RIVERA, FOX NEWS CHANNEL:  Citizen Prime, now, I know that you have had some instances in which you have, indeed, reported crimes in progress.

UNIDENTIFIED MALE:  I wasn‘t in costume, you know.  It‘s—we‘d love to sit around all day waiting for crime to strike, but these things happen at kind of random intervals.

(END VIDEO CLIP)

ABRAMS:  Say it ain‘t so, Citizen Prime.  We all thought you waited to root out crime like a true superhero.  No!

Sometimes you wish you had a chance to talk to a guest before interviewing him live on the air, like this surfer interviewed about a storm at Huntington Beach.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  This is, like—you get the best barrels ever, dude, just, like, you pull in and you just get spit right out of them, and you just drop in, just smack (INAUDIBLE) you drop down (INAUDIBLE) And then after that, you just drop in, you just ride the barrel and get pitted (ph), so pitted!

(END VIDEO CLIP)

ABRAMS:  Let‘s see that again, this time with a rough translation.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  This is, like—you get the best barrels ever, dude, just, like, you pull in and you just get spit right out of them, and you just drop in, just smack (INAUDIBLE) you drop down (INAUDIBLE) And then after that, you just drop in, you just ride the barrel and get pitted (ph), so pitted!

(END VIDEO CLIP)

ABRAMS:  You‘ve heard of the man on the street interviews?  Maybe that man was on something else.  Yo, dude, go get skiied (ph), man.  Have them dope (ph) up and then get interviewed by that hot reporter!

Still ahead: Mary Winkler, the woman who shot her husband in the back while he was sleeping, is free after serving about five-and-a-half months total behind bars.  She claimed she did it because she was being abused, but was this just jurors who felt sorry for a middle class white woman?  Her attorneys join us next.

And later: Britney Spears‘s ex, K-Fed, says he‘s concerned about his children‘s safety.  Now he‘s heading to court to get more control over his kids.  How much will her bizarre behavior matter legally?

(COMMERCIAL BREAK)

(NEWSBREAK)

ABRAMS:  Coming up, Kevin Federline is fed up with Britney Spears.  He is trying to get custody of their kids..  How bad things have to get when K-Fed thinks he is the responsible one?  That story is coming up.

But first, Mary Winkler, the Tennessee preacher‘s wife convicted of killing her husband is free tonight after serving a total of just 150 days in jail.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  What did you do then?

MARY WINKLER, CONVICTED OF KILLING PREACEHR HUSBAND:  (inaudible)

UNIDENTIFIED MALE:  What did you see?

WINKLER:  How he lying there.

UNIDENTIFIED MALE:  How was he laying there.

WINKLER:  He was on his back.

UNIDENTIFIED MALE:  How did he look?

WINKLER:  He was dead.

(END VIDEO CLIP)

ABRAMS:  Winkler had been charged with first-degree murder, but a sympathetic jury just convicted her of voluntary manslaughter.  A sympathetic judge just gave her a three year sentence and reduced it to 210 days of which she only had to serve five and a half months in jail and about two months in a mental health facility.

My take, that is ridiculous.  Mary Winkler shot her husband in his sleep.  This was not about to be beaten or physically harmed.  Her defense was that she was verbally, physically and sexually abused by her husband over time.  The evidence—she testified that he called her fat, and stupid.  She claims he had beaten her and asked her to have forms of sex that made her uncomfortable.

I must say I am often sympathetic to abused woman who harm a spouse or boyfriend.  And I‘m not saying she needs to get life in prison.  But as the jury foreperson put it, I do not think justice was done.  He blamed it on the 10 women on the jury.  I think this was sympathy for a well spoken, attractive white woman.

Here with I am certain a different a different take, Mary Winkler‘s attorneys, Leslie Ballin and Steve Farese.

Thanks a lot, gentlemen, for coming on the program.  Appreciate it.

Leslie, I mean, look, you listen to this male juror who served on this jury and he is saying, look, the 10 women felt bad for her from day one.  This was, was it not, a jury who felt bad for this woman? 

LESLIE BALLIN, MARY WINKLER‘S ATTORNEY:  No, it was a jury that by the way for our first preemptory challenge we would excuse you.  And secondly, going back, we would excuse the jury foreperson.  I take issue with his statement that it is not his fault if he thinks this was an incorrect verdict.  The judge instructed the jury that their decision had to be unanimous.  They should not change that opinion .

ABRAMS:  That is fine.  Whether he should or shouldn‘t do it, let‘s talk about the bottom line result here and that is that Mary Winkler is free tonight.  She served 150 days in jail if.  The rest of the time she served in a mental health facility.  You have to admit, she got really easy for shooting her husband in the back while he slept.

BALLIN:  For what she did, I think justice was done.  And I am saying that as her lawyer, but also, as somebody that has certainly talked to the mental health people that evaluated her, who diagnosed her with PTSD, post traumatic stress disorder, then learned about the history of abuse and I am convinced that justice has been done in McNairy County where Selmer, Tennessee is.

ABRAMS:  But Steve, post traumatic stress disorder is not the same thing as voluntary manslaughter from what I understand from the law.

STEVE FARESE, MARY WINKLER‘S ATTORNEY:  First of all, you are wrong on a couple of counts.  Number one, I do not know where you got the information that Matthew Winkler was asleep.  The proof was that he was not asleep.  And the other thing is yes, justice was done in this case.  Post traumatic stress is a subset of abused wife syndrome.  If you‘re saying, well, how we get manslaughter?  It was obviously a compromise verdict.

ABRAMS:  Right.  It was a compromise.

FARESE:  Right.  Nine people out of that jury wanted to acquit her totally of this case.  So, maybe if you think about it, Mary Winkler did not get a fair shake.  Maybe she should have walked.

ABRAMS:  You are right, the fact that she shot her husband in the back, whether he was actually asleep or whether he was lying down, whatever was—he was shot in the back.  And I have got to tell you, when we first heard about this case, most of us is and it probably is - and what I fear is a bias towards this attractive woman who people thought, my goodness, he must have been molesting the kids.  Oh my goodness, he must have been the worst husband ever.  Then the evidence comes out, he called me fat, he called me a ugly, he called me stupid.

FARESE:  You are focusing on some of the minimal things that he did to her.  He also kicked her, he also gave her a black eye, threaten to kill her by pointing a shotgun at her, by threatening to cut her break lines, by threatening to cut her into a million pieces and nobody would ever find her.  Day in and day out.  So do not minimize this.

ABRAMS:  I will minimize it because I tell you, that testimony came from her.

FARESE:  No.  You are misleading the public.

ABRAMS:  How am I misleading the public?

FARESE:  Because you are only accenting the minimal hostilities show toward her.  The jury heard the entire proof in this case and you did not.

ABRAMS:  Let me bring in Russell Ingle, the staff writer for “Independent Appeal” newspaper.  He covered the case and Susan Filan, MSNBC, a legal analyst.  Russell, do you disagree with me, that this is a jury to looked at this woman on the stand and simply felt sorry for her?

RUSSELL INGLE, “THE INDEPENDENT APPEAL”:  I definitely believe that her testimony was the turning point in this trial.

ABRAMS:  And what about it?

INGLE:  Well, I believe they saw a woman, whether it was true or not, that was very convincing, very believable when she gave her testimony.  There were numerous times when I saw members of the jury, the ladies on the jury, that became emotional during times of her testimony.

ABRAMS:  My fear, Susan Filan, and you have heard me say this before -

is that you look at this woman—there were so many people around here saying, all my goodness, this woman, he must have been about to kill her.  We didn‘t know the facts of the time.  Now the facts come out and it turns out that she shot him in the back because she claims that over time the abuse got to the point where she could not take it anymore.  I view this, Susan, and I‘ll let the lawyers respond in a minute after you comment, but I view this as a setback to the women‘s rights movement.

SUSAN FILAN, MSNBC LEGAL ANALYST:  I do, too, Dan.  Because really what she is saying here is that instead of claiming that she was suffering from post traumatic stress disorder, which is why she committed intentional killing, she is actually cured of it miraculously in two months.  My understanding of post traumatic stress disorder it is that it persists so long that even after the trauma of the stress has ceased you are reliving it.  How did she get cured in two months?

ABRAMS:  That is a good point.  Steve, you want to answer that?

BALLIN:  I would like to answer that.  It was not two months.  It was a year and a couple of months.  The reason that she was getting better is the main stressor in her life was not there anymore.

FILAN:  Because she killed him.  How convenient.

ABRAMS:  It is the ultimate cure, isn‘t it?  Kill your husband and you don‘t have to worry about it anymore.

FILAN:  That thing that I worry about is that this sends a message to women that if you can do five months behind bars, two months in a mental facility, you might as well just do that because it is certainly quicker and easier than a divorce.

ABRAMS:  Let me let Steve .

FARESE:  It certainly sounds like you are trying to set women‘s rights back, but let me tell you this.  First of all Mary Winkler‘s testimony was that she did not intentionally pull that trigger.  That it went off accidentally.

FILAN:  I found it really odd that she rode those two horses.  One, I was battered, and two, it was a mistake.  Which one is it?

FARESE:  Wait a minute.  I think you find a lot of things odd in your life and I am sorry that I can‘t help you with those things.

I am telling you what the facts are and what the proof showed.  The proof showed that she accidentally fired the shots.  Now whether the jury believes that or not, we don‘t know, because it was a compromise verdict.  And I can certainly understand your feelings and I hope you all know that I am joking with y‘all.  But I understand your feelings about not knowing all of the facts, not having lived with this case .

ABRAMS:  Yeah.

FARESE:  As Leslie and I have.

FILAN:  Yeah.  Nobody knows it as well as you do.  But here is the thing.

ABRAMS:  I have got to wrap this up.

FILAN:  OK, Dan.

ABRAMS:  I want to say that Leslie Ballin and Steve Farese get credit as lawyers for being able to get this sort of sentence and verdict, which is a slap on the wrist in a case like this.  At least, in my opinion.  Not their opinion.

Susan Filan and Russell Ingle, thanks to you as well.  Appreciate it.

FILAN:  You bet.

ABRAMS:  Up next.  K-Fed in the tabloids once called a deadbeat dad now says he is a better parent then Britney Spears.  That is not saying.  Now he wants custody, saying he is worried about their kids.

And later, you have heard about stupid criminals caught on tape.  But what about in tape?  We‘ll talk to a store owner who helped nab a crook sort of, kind of, disguised in duct tape.

(COMMERCIAL BREAK)

ABRAMS:  Call it the custody battle of the lesser of two evils.  Britney versus K-Fed.  Their divorce my be final, the battle over the kids heating up.

Since February they have had joint custody, but now he wants to soak up more time with their sons, citing Britney‘s ridiculous behavior as a cause for concern.  NBC‘s Peter Alexander has the story.

(BEGIN VIDEOTAPE)

PETER ALEXANDER, NBC NEWS CORRESPONDENT (voice-over):  It is one of Hollywood‘s nastiest custody battles and it just got worse.

The latest bizarre confrontation, early Sunday morning outside a house party in the Hollywood Hills.  A security consultant delivered a subpoena to Britney Spears friend and former assistant Alli Simms as she tried to play keep away.

UNIDENTIFIED FEMALE:  I did not touch it.  I did not touch it.

ALEXANDER:  Kevin Federline‘s attorneys want Simms questioned under oath about Britney‘s parenting skills.

DINA SANSING, US WEEKLY:  She has been around Britney a lot, she has seen her with the kids.  She certainly would know if there is something of good going on.

ALEXANDER:  As you may be aware, Britney is not exactly the selling down type.  The latest “US Weekly” shows Britney staring out from a hotel pool with a stranger.

SANSING:  She spent one night drug, topless, with a random college kid.  Not what you would really expect for a mother of two.

ALEXANDER:  For her part. Simms recently told “People Magazine” Britney is a “wonderful mom” and she is “so hands-on” and Britney “loves those babies” to death and they adore her.

The couple agreed to a 50/50 split last month.  Federline reportedly now wants it to be 70/30 citing serious concerns about the safety of his young sons.

MARK VINCENT KAPLAN, FEDERLINE‘S ATTORNEY:  Kevin is very serious about the case that he has filed.  And will pursue aggressively obtaining relevant information that he needs to have in support of his case.

ALEXANDER:  Federline‘s camp insists it‘s about custody, not cash.  Even though the divorce is final, a judge can change the conditions of the child custody agreement at any time.

STEVE CROW, ATTORNEY:  It Britney continues to behave in a way that she has, there is a real good chance she will lose the kids.

ALEXANDER:  For now, America‘s pop princess and the would-be rapper are left fighting over a different title.  Parent.  Peter Alexander, NBC News, Los Angeles.

(END VIDEOTAPE)

ABRAMS:  Here is Cary Goldstein, a family law attorney in Beverly Hills and Tom O‘Neil, senior editor of “In Touch Weekly.”

All right.  Before we get to the legal issue, Tom, what are the facts behind this?  What is the real motive here?

TOM O‘NEIL, “IN TOUCH WEEKLY”:  Well, we have to suspect money, of course.  Kevin got, we figure, $14 million in the divorce, which was final just a few weeks ago.  She is worth at least $60 million.  Unfortunately, his chart support is only 15,000 a month.  So if motive is really money, he needs more time with the kids in order to get more money out of Britney.

ABRAMS:  All right.  Here are some of the allegations that he is making.  Her trip to Las Vegas, her wild partying, her many men, her emotional issues.  Cary Goldstein, how important is all of that stuff?

CARA GOLDSTEIN, FAMILY LAW ATTORNEY:  That is certainly going to be considered by the judge.  We have a smart judge here, though, and what it really boils down to in the end is, how is she with the children?  She can party all night long as long as she gets up in the morning and takes care of the kids properly.  That‘s the key.

ABRAMS:  So trip to Vegas, the men, how about the many men she is with

does that matter?

GOLDSTEIN:  As long as she is not exposing the children to the men, so long as they are not getting confused, who are these guys, is this daddy?  Then there is not a problem.

ABRAMS:  Tom, where do Britney‘s parents fit into all of this?

O‘NEIL:  That is a great mystery here because she has been fighting with her mother lately, who took the side of Kevin in the big rehab smack down that they all had.

I think this is really about drugs.  I think it‘s about money too but I think that what we‘re seeing here is real concern on the family‘s part that Britney is back to her old ways and now the kids are kids are in danger.

There are subpoenas out to 10 people, by the way, including nannies, including her music producer, all kinds of people are being called to testify to find out about her behavior.  If it is really reckless as it seems, then—this is right after she got out of rehab, that‘s the whole problem here.  She came out of Promises and she blamed her mother and she blamed Kevin and her former manager for having this intervention and putting her in the slammer to get clean, now she is coming out and she is saying that there was nothing wrong in the first place.  So there.  So Kevin is striking back.

ABRAMS:  But as a legal matter, Cary, it does seem that Britney Spears is a mess, right?  It does seem - Put aside what time she‘s partying till.  Put aside how many men she has or does not have.  The bottom line is, she seems like a psychological wreck.

GOLSTEIN:  Dan, you are being generous.  A mess, she is a train wreck.  Certainly she is a problem.  The judge is just simply going to look at what is in the best interest of this child.  I had a feeling she is going to lose legal custody.  Legal custody is different from physical custody.  Legal custody charges that parent with the right and responsibility to make decisions about the child‘s health, education, and welfare.  With the kinds of decisions she‘s been making in her own life, I just do not see a judge giving her authority to do that.

As a practical matter, these kids are not going to be raised by Kevin or Britney.  They are going to be raised by nannies.  That‘s who are going to be making a lot of good decisions.

ABRAMS:  Cary Goldstein, Tom O‘Neil.  Thanks a lot, appreciate it.

GOLDSTEIN:  Thank you.

ABRAMS:  Up next, a man celebrates his 80th birthday underwater.  Paris Hilton stops the celebrating long enough to sell her home.  And a criminal who has nothing to celebrate after getting caught in a sticky situation.

The day‘s “Winners and Losers” are up next.

(COMMERCIAL BREAK)

ABRAMS:  Time for tonight‘s “Winners and Losers” for this 14th day of August, 2007.

Our first winner, Paris Hilton, pulled over more than once, including four drunk driving, free from jail, now making a hefty profit on her Hollywood Hills home.  She just sold it for $4.25 million, a quick 45 percent profit.

Our first loser, Deputy Charlotte Moore, pulled over more than once for drunk driving by her fellow Deputy Mike Moore of the Elk County Sheriff‘s Department in Nevada, who also happens to be her husband.  She was arrested on DUI charges, placed on administrative leave, and I‘m guessing her husband may be in the market for a new home as well.

The second winner.  Underpaid Wal-Mart workers in California.  A state commissioner ordered the super-sized store to return to $3.9 million to 50,000 workers shortchanged on their pay stubs.

The second loser, Mattel.  The super-sized toy manufacturer asked consumers to return more than 9 million Chinese-made toys today where safety may have been shortchanged.  It includes popular items like Polly Pocket and Barbie.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  We have the highest quality standards in the industry.

(END VIDEO CLIP)

ABRAMS:  But the big winner of the day, 80-year-old Russell Merritt (ph), the Florida Aquarium‘s oldest volunteer scuba diver.  He received an underwater surprise birthday party yesterday.  Visitors to the aquarium sang “Happy Birthday” while Russell scrubbed algae in his wet suit and mask.

The big loser of the day, Kasey Kazee, accused of being the thief who created a mask out of duct tape, then tried a surprise robbery of a liquor store in Kentucky.  Kazee is singing the blues, climbing the police have a wrong man.

(BEGIN VIDEO CLIP)

KASEY KAZEE, ACCUSED DUCT TAPE BANDIT:  Look at me.  Do I look like the duct tape bandit?  I am not know duct tape bandit, you hear?  Live 101 (ph), Assinatucky (ph), you know this is not me.  Now look, do the math and do the homework.

(END VIDEO CLIP)

ABRAMS:  I have done the math and I am now convinced.  Now on the phone, Bill Steele, the general manager of Shamrock Liquor Store in Kentucky where the duct tape and it tried to rob.  Bill, thanks for taking the time.  Appreciate it.

All right.  Tell us what happened.

BILL STEELE, GENERAL MANAGER, SHAMROCK LIQUORS:  You are mighty welcome.  Coming back from an errand.  I came down the driveway of my liquor store and I noticed these arms hanging on a fence rail.

And at that time, all I saw was a white t-shirt pulled over something‘s head and duct tape.  So I proceeded to park my vehicle, went in the front door, and there he was.  He was already in the liquor store.  I came to the back of the liquor store, and I have a wooden club that is ironically wrapped in duct tape just in case I ever happen to need it.

ABRAMS:  You went back and got the club.

STEELE:  I went to the back of my store in the stockroom, got my club, and went back up front.  At that point in time, my carryout clerk by the name of Craig Miller approached him.  And they had an altercation in the store.  And they ran out the door.  And Craig tackled the bandit, and put him down on the ground.  And held him.  We tied him up with rope.  We waited for the police to arrive.

ABRAMS:  Here is what Craig Miller said about it.

(BEGIN VIDEO CLIP)

CRAIG MILLER, CAUGHT DUCT TAPE BANDIT:  Now I sit back and laugh about it.  He was lucky.  Because the cops said when they pulled it off he was sweating so bad it did not stick.

(END VIDEO CLIP)

ABRAMS:  And yet now, Bill, he is saying that they have the wrong guy.

STEELE:  Um.

ABRAMS:  Any chance of that?

STEELE:  I do not know how they have the wrong guy.

ABRAMS:  Because when they took of the tape he was tackled and immediately arrested.

STEELE:  We tackled him, when the police arrived they took the take off, and there he was.

ABRAMS:  And it is the same guy now doing a little raps on, claiming it was not him.

STEELE:  Exactly.  Exactly.

ABRAMS:  There he is.

STEELE:  And there is a serious side to this too.  It‘s a situation where I have a cashier that was traumatized.

ABRAMS:  Bill, I completely understand it.  We are glad he got caught.  We‘re glad that everyone is safe at your place of business.  Thanks a lot for taking the time.  Appreciate it.

STEELE:  You‘re mighty welcome.  I appreciate the time, too.

ABRAMS:  Up next, LOCKUP.  Thanks 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 2007 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2007 Voxant, Inc. ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and Voxant, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

transcript

Watch MSNBC Live each weeknight at 9 p.m. ET

Discuss:

Discussion comments

,