updated 4/5/2004 1:11:40 PM ET 2004-04-05T17:11:40

Guests:  John Timoney, Chris Van Wagner, Ron Fischetti, Joel Androphy, Joe Tacopina, Frank Benicase

ANNOUNCER:  Now THE ABRAMS REPORT.  Here is Dan Abrams.

DAN ABRAMS, HOST:  Hi, everyone.  There is no suspect at large. 

Wisconsin police say they don‘t believe co-ed Audrey Seiler‘s story that she was abducted and held for four days in part, get this, based on a surveillance tape where Seiler is allegedly seen buying rope, duct tape, and other items she said her abductor used against her. 

Plus, they may have been just minutes away from reaching a verdict when the judge in the Tyco case declared a mistrial, blaming intense outside pressure on the lone holdout juror.  Was it really necessary, though, to end the case then, and what happens now to the men accused of stealing $600 million from the company? 

And the owner of the New York license plate “FAB 5” is tired of people thinking he‘s one of the gang.  And boy is he sorry he allowed the makers of the hit show “Queer Eye for the Straight Guy” to use the plate for a measly $100.  He‘d love to make over the deal.  We‘ll talk to him about it. 

But first, it appears to have been a hoax, at least that‘s what the police say.  Audrey Seiler, the Wisconsin college student who went missing Saturday and was then found Wednesday in a marsh just two miles from her apartment initially told police she‘d been abducted at knifepoint from her apartment building, set off a citywide search for an armed assailant.  But almost two days later, with no suspect in custody, today police came to a startling conclusion. 

(BEGIN VIDEO CLIP)

NOBLE WRAY, ASSISTANT CHIEF, MADISON PD:  We do not believe that there is a suspect at large period.

(END VIDEO CLIP)

ABRAMS:  No suspect at large.  Why are police so convinced?  They say her story just doesn‘t add up.

(BEGIN VIDEO CLIP)

WRAY:  Audrey reported that the suspect used duct tape, rope, cold medicine, gum, and knife—and a knife against her.  In the evening hours last night what we were able to confirm is that the items that police Officer Kamholz is holding there are items that we were able to get video tape showing Audrey going into a local store, purchasing these items. 

There were two separate witnesses who observed a person who is believed to be Audrey in different areas of the city during her reported abduction who appears she was walking freely. 

Information obtained from Audrey‘s computer indicates persons were on the computer during the time she was reported missing.  Preplanning on the computer searches, Madison, she had preplanning on computer searches Madison, wooded areas, parks, weather conditions for a five-day forecast. 

(END VIDEO CLIP)

ABRAMS:  As I said immediately after that press conference happened live, wow.  So have police done the right thing here?  And how did they track down the inconsistencies in Audrey‘s story. 

Joining me now Miami Police Chief John Timoney.  All right, Chief, good to see you again.

CHIEF JOHN TIMONEY, MIAMI POLICE DEPT.:  Good to see you Dan.

ABRAMS:  All right, so what do you make of how the police did in this case? 

TIMONEY:  I think they did everything just right.  Clearly, I think most people—most cops from the get-go suspected something didn‘t seem right.  Usually in policing, you know your hunches are initially—you know you figure if something doesn‘t look right, it doesn‘t look right for a reason. 

ABRAMS:  And that hunch...

TIMONEY:  Yes.

ABRAMS:  ... probably occurred very early on.  I mean I got to tell you, the moment the authorities did not find someone in that encircled area...

TIMONEY:  Yes.

ABRAMS:  ... I got the sense they started asking questions. 

TIMONEY:  Exactly.  And usually the easiest way to do it is you get the—in this case, the victim and tell me exactly what happened from the moment you were abducted until we picked you up.  You know get all the facts down and then wait an hour or two and say listen, let me go over that one more time so I have it right.  Tell me again and then usually you‘ll get right away inconsistencies because you know, the truth is only one version but when you start to lie, there are multiple versions. 

ABRAMS:  Chief, how hard is it to make the decision to go public, to say as the authorities did today...

TIMONEY:  Yes.

ABRAMS:  ... you know what, we‘ve weighed the evidence and we just don‘t buy it. 

TIMONEY:  Yes.  Well, I think they did it the right way.  You have to wait.  You know there‘s a crime alleged, there was even a sketch provided, you know, you‘ve got an obligation, if in fact there is a guy out there, to warn the public.  So you must do that, while at the same time working the case and then when you have enough evidence that there is enough inconsistencies and of course, in this case they have two separate videos, one of her leaving her dorm and two at the local hardware store purchasing the tape and...

ABRAMS:  Yes.

TIMONEY:  ... the knife, then you know you‘re left with no other choice but to go public and you know stop the hoax. 

ABRAMS:  You‘ve got to wonder whether as she was helping them make this sketch...

TIMONEY:  Right.

ABRAMS:  ... whether that was sort of part of the giveaway, was you know I don‘t know who she is sort of basing this on.  Let‘s assume for a moment there is no abductor...

TIMONEY:  Right.

ABRAMS:  ... she‘s got to be basically saying oh yes, you know, he had a really long nose, and he had a really defined chin and he was...

(CROSSTALK)

ABRAMS:  ... wearing a hat.

TIMONEY:  They‘ll give a generic.  It‘s usually you know somebody around 5‘10”, medium build, about 160 pounds, you know...

ABRAMS:  They usually say African American, right?

TIMONEY:  Yes.  Yes, usually.  Yes, yes.  I mean it‘s—in this case it‘s a white guy.  You know it depends.  It really does depend.  But that‘s all part of the ploy.  But I‘m sure early on they got an inkling, but again you can‘t go public until you‘re pretty...

ABRAMS:  You ever seen a case like this Chief?

TIMONEY:  Oh I‘ve seen lots of cases like this. 

ABRAMS:  Yes?

TIMONEY:  You see it all the time on a smaller version particularly surrounding sex crimes, for example, prostitution where somebody—maybe it‘s a prostitute—or somebody alleges—prostitute alleges she was raped or some guy alleges he was robbed when in fact he lost his money in a gambling game...

ABRAMS:  Yes.

TIMONEY:  ... or a prostitute ripped him off.  You find that often and what you‘ve got to go through, as I say, get the initial story, tell me exactly what happened, and then about two hours later tell me again what happened...

ABRAMS:  Yes.

TIMONEY:  ... and right away you get inconsistencies.

ABRAMS:  Ever seen a case where this much police manpower was expended on something that turned out to be, seems to be a hoax? 

TIMONEY:  Yes, I‘ve seen it before, and that should be—that should weigh in, by the way, in the notion should she be arrested.  You know the notion that there‘s no harm, no foul, that‘s true.  However, there were huge opportunity costs.  Those police officers could have been out there doing regular patrol, investigating real crimes, and their whole time is diverted into chasing down this hoax—a good four days of lost police resources. 

ABRAMS:  Yes.

TIMONEY:  That‘s a cost.

ABRAMS:  Yes and look, I think—I‘ve got to tell you, I think that she probably will get prosecuted here. 

TIMONEY:  Yes, I would think so. 

ABRAMS:  All right Chief, thanks a lot for coming on the program. 

TIMONEY:  Dan, good seeing you buddy. 

ABRAMS:  MSNBC‘s Jeannie Ohm has been covering this story from Madison, Wisconsin.  So, Jeannie, a lot of community reaction there.  People have been following this case very closely, initially going on massive searches to try and help find her.  Are people very angry now that they‘re hearing from the police?

JEANNIE OHM, MSNBC NEWS CORRESPONDENT:  Well bottom line, Dan, people here in Madison have been on a roller coaster of emotions.  From the beginning there was concern and fear that someone was preying on young women, then you had community elation when Audrey Seiler was found, and now after these stunning developments, there‘s a lot of mixed reaction in this community.

On the one hand there‘s a sense of betrayal.  People are upset that resources were wasted on a story that was made up.  On the other hand, there‘s a sense of sadness that a young woman, what would drive her to these extreme lengths. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  We were suspicious from the beginning.  From the first day we were saying yes, there is something that doesn‘t work here.  But you know until you get the evidence you don‘t really know.

UNIDENTIFIED FEMALE:  When you leave your own apartment at 2:30 in the morning it seems pretty obvious that there wasn‘t anything else going on. 

UNIDENTIFIED FEMALE:  I think it‘s pretty ridiculous that she would make up a story like that.  What could she possibly been hoping to accomplish?  Scaring her family?  The community?  It‘s pathetic really. 

UNIDENTIFIED MALE:  I‘m sad for her.  I‘m very sad for her, and I hope she gets some help, because it sure took this community by surprise. 

(END VIDEO CLIP)

OHM:  A spokesperson for the mayor‘s office says they‘ve been

bombarded with e-mails from all across the country and again reaction is

mixed.  On the one hand, outrage.  On the other, concern for Audrey Seiler

·         Dan. 

ABRAMS:  Jeannie, any sense of what the family has been saying?  I mean you know we heard a press conference initially where the parents were out there, so relieved that she was back, any sense of their reaction now? 

OHM:  Well there is a lot, as you can imagine, you know originally a lot of the family members and friends were accessible, and then they just clammed up, the more police kept being vague in their description about the investigation, and now as you can imagine, there is a sense of concern for Audrey Seiler‘s well being, and that is their main priority now to make sure she is taken care of as opposed to commenting now on how they‘re feeling. 

ABRAMS:  All right, Jeannie Ohm, thanks a lot. 

And keep in mind that Audrey Seiler could be in big trouble and that‘s why coming up we‘re going to talk about whether she could face criminal charges for allegedly making up the abduction story or at least be liable for all the money that went into the intense search for her. 

And a juror says they were literally within minutes of reaching a verdict in the Tyco case.  Two Tyco executives accused of looting $600 million from their company.  The judge declared a mistrial. 

And he gets strange stares and constant comments when he‘s driving his car, not to mention Frank‘s friends saying he missed a sweetheart deal, all for allowing the hit show “Queer Eye for the Straight Guy” to use his vanity license plate, “FAB 5”.  We‘ll talk to him later in the show. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, what happens to Wisconsin college student Audrey Seiler now that it appears she made up her story about being abducted?  The police say they‘ve contacted the D.A.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

WRAY:  We have been in contact with the district attorney.  We have not concluded and we can‘t conclude for the district attorney if he‘s going to go for charges.

(END VIDEO CLIP)

ABRAMS:  From victim to possible defendant, investigators now saying they do not believe University of Wisconsin student Audrey Seiler was abducted at all.  But now the question—are they going to file criminal charges against her?

Joining me now is Chris Van Wagner, a former federal prosecutor and currently a defense attorney in Madison, Wisconsin.  Thanks a lot for joining us.  We appreciate it.

CHRIS VAN WAGNER, FORMER FEDERAL PROSECUTOR:  Well thanks for having me Dan.  Good evening.

ABRAMS:  All right, so first question, do you think she‘ll get prosecuted and if so, what would they charge her with? 

VAN WAGNER:  Well I think the first question is an easy and simple yes at the right time.  And the reason for that is the amount of police involvement, the amount of expense, and the risk to people with snipers and dogs and so forth.  It just requires some response by the district attorney here.  But with what is a different question and let me take that on.

In Wisconsin, it is a petty or misdemeanor crime for which you can get nine months in jail or three—two years on probation if you lie or give false information or false evidence to a police officer.  It‘s not a felony.  There are very few felonies that could be even creatively charged in this case.  But the D.A. could take each separate statement plus the creation of evidence apparently, if it‘s true, the duct tape, rope, and knife were part of a artifice, a plot by her, and he could charge separately misdemeanors for each of those different acts Dan.

ABRAMS:  And so let‘s assume for a moment, conviction, what kind of time would she be facing realistically? 

VAN WAGNER:  Realistically, I would say that like most first offenders with what might obviously be a mental health issue, you would expect her to be given the opportunity to show that she can address the mental health issues and she doesn‘t need to be incarcerated.  However, given the police response and given the amount of—well the amount of media attention focused on the local acting police chief and D.A., you might well see a demand for an extensive jail sentence for a first-offense misdemeanor because of the apparent risk and apparent cost. 

(CROSSTALK)

VAN WAGNER:  You can also expect them to—go ahead Dan.

ABRAMS:  I was going to ask you what about money.  I mean I think that‘s what you were just going to address and that is what about the costs...

(CROSSTALK)

ABRAMS:  ... involved in the search? 

VAN WAGNER:  I sure was going to address that.  In fact, in Wisconsin we have a restitution statute—reimbursement statute that says that anybody convicted of a crime can be ordered to pay the same kind of damages they would owe if people had money out of pocket.  The gray area, Dan, is when police investigate a crime there‘s always expense and it‘s not usually compensable by a defendant.  But in this case extraordinary means were used and I fully expect this to become, if you will, a test case on just how much they can seek against the young lady if indeed they prefer charges. 

ABRAMS:  Let‘s assume for a moment that the authorities believe that she‘s got mental problems.  That you know she was...

VAN WAGNER:  Yes.

ABRAMS:  ... depressed and she was, whatever else the case may be. 

Could that lead them to not file charges based on her mental state? 

VAN WAGNER:  Here in Madison, I sincerely doubt that they will elect not to file charges.  In some jurisdictions where I‘ve practiced and you‘ve covered, prosecutors invite pre-charging conferences.  But in this district, the usual rule is charge first and you come to me later with your evidence of mental health and so forth.  It‘s a defensive matter and they tend to view it as a sentencing issue unless it rises to the level of not guilty by reason of insanity.  And in misdemeanors that would seem an unusual plea simple because the, if you will, hospital incarceration would far exceed any jail or correctional time and community that Audrey would face.

ABRAMS:  Is there any chance that the community is going to come to Audrey‘s defense?  I mean I can‘t—I‘ve got to believe that there are going to be a lot of angry people in that community.  Jeannie Ohm was saying it‘s sort of divided as to people who feel for her and people who are angry.  I‘ve got to believe there are a lot more people who are angry than are feeling sorry for her right now.

VAN WAGNER:  You know that‘s interesting Dan.  I have not detected any anger among anybody with whom I‘ve spoken and any of the people on talk shows.  Everyone yesterday was saying, I don‘t know if she‘s making this up or not, but if she is, she needs help.  And today people were saying it‘s obvious she needs help and she should get it and she should get prosecuted if it‘s appropriate.  But there tends to be a gentleness to the reaction and it‘s because of the fact that just four weeks ago, a woman testified in a rape case, in which the police had originally accused her of lying and charged her with obstruction only later to find DNA evidence proving there was indeed a rape.  So...

(CROSSTALK)

VAN WAGNER:  ... there‘s a real kid glove attitude here right now.

ABRAMS:  Yes, but is that because she‘s a pretty white girl?  I mean is it—I mean because it just seems to me that if it becomes clear that she makes up this story about being abducted with a knife, she then goes to lengths of actually having a sketch artist make a sketch of a nonexistent guy, knowing that that‘s going to be put out to the public, knowing that the authorities are going to go searching, knowing that they‘re going to continue to expend all those resources, I don‘t understand why people really would feel all that sorry for her. 

VAN WAGNER:  I‘m not sure that people necessarily feel sorry for her, but there is—and you‘re right, that somebody could say well is because she‘s a pretty white woman from Minnesota.  But as a practical matter, Madison, which does not have a very large minority population, usually sees an outcome in this kind of case along the lines I described regardless of the race or age of the first offender in this case.  But I‘m not suggesting the D.A. won‘t seek it.

ABRAMS:  Right.

VAN WAGNER:  He very well may, but I don‘t think you‘re going to see the kind of ground swell on race issues that you might have say, what 20, 25 years ago in the Tawanna Brawley (ph) case.

ABRAMS:  Yes and I was going to get to the Tawanna Brawley case (ph).  Again, that‘s a New York case where a woman falsely claimed that she was raped, but we are out of time.  Chris Van Wagner, thanks a lot.

VAN WAGNER:  Thanks Dan. 

ABRAMS:  Coming up, the judge in the Tyco trial declares a mistrial due to—quote—“outside pressure on the holdout juror”, but they were just moments away from a verdict.  What kind of message does that send? 

Plus, the FBI is warning law enforcement officials of a possible plot against major U.S. cities this summer.  This as NBC News uncovers an al Qaeda memo with a hit list.  Americans topping the list.

(COMMERCIAL BREAK)

(NEWS BREAK)

ANNOUNCER:  This is THE ABRAMS REPORT.  Here again is Dan Abrams.

ABRAMS:  It‘s over.  After six months, 49 witnesses, and 11 days of jury deliberations, the Tyco trial is over with no verdict.  The defense team had asked for a mistrial numerous times.  Their sixth motion this morning.  It cost $12 million to prosecute and now we learn the jurors may have been only minutes away from a guilty verdict on at least some of the counts. 

(BEGIN VIDEO CLIP)

MARK GLATZER, TYCO JUROR:  There were 48 counts, but I think definitely on definitely more than—on definitely some of the counts the jury was going to go towards guilty. 

(END VIDEO CLIP)

ABRAMS:  New York Supreme Court Justice Michael Obus declared a mistrial.  He said because of intense outside pressure put on one of the jurors in this case.  One source told The Associated Press that was juror number four, considered the lone holdout for an acquittal during deliberations and who allegedly flashed the OK sign at the defense.  She received apparently a threatening letter.  Attorneys for the defendants claim they were disappointed.

(BEGIN VIDEO CLIP) 

STEPHEN KAUFMAN, DENNIS KOZLOWSKI‘S ATTY:  We‘re disappointed because of events that occurred outside of the courtroom that this case did not reach verdict. 

UNIDENTIFIED MALE:  We are disappointed that we were not able to finish the mission that we started six months ago. 

(END VIDEO CLIP)

ABRAMS:  Yes, right.  They asked for a mistrial and they got it.  A huge victory for the defense.  They can pretend all they want that they‘re disappointed.  Let me bring in my legal team to weigh in on this.  White collar defense attorney Joel Androphy, who has handled numerous securities fraud cases, defense attorney Ron Fischetti, who has worked on many high profile cases like this one, and attorney Joe Tacopina, who has also handled a lot of white collar cases.

Ron Fischetti, do you agree with me that this is just nonsense?  That these attorneys for the defense are disappointed?

RON FISCHETTI, DEFENSE ATTORNEY:  Well they have to say something.  Any time you can work your clients out of the courtroom without a guilty verdict, you‘re happy.  There‘s no question that they moved for a mistrial.  They were happy that they have a mistrial.  They now know the prosecution‘s case and they‘re much, much better off.  So those were just statements that lawyers will make in cases like this.

ABRAMS:  Yes.

FISCHETTI:  They‘re very, very pleased.  There‘s no question about that.

ABRAMS:  Joel, why do you think that the judge made a mistake here? 

JOEL ANDROPHY, WHITE COLLAR DEFENSE ATTORNEY:  A terrible mistake—this case is about sending the right message, that we won‘t condone securities fraud or any type of corporate fraud.  Now they‘ve weighed—they‘ve opened up a path of future corruption and any type of jury trial because now people know that if you have a problem with your case, if inappropriate letters are being sent in, that you have a good chance of starting all over again.  That‘s not the message that was supposed to have been sent in this case.

ABRAMS:  You know Joe, I‘ve got to tell you, unless this juror came to the judge and said, Judge, not only did I get a threatening letter, not only have I seen that my name is out there, but I‘m also telling you that that‘s influenced my verdict, unless she said that, I think this judge made a mistake. 

ANDROPHY:  Well if the person said it‘s influenced his verdict, they shouldn‘t be having these types of communications unless everyone is present.

UNIDENTIFIED MALE:  Right...

ANDROPHY:  But up to that point in time, I would agree, the judge should not have let it go...

ABRAMS:  Right.

ANDROPHY:  ... now.  If the person...

ABRAMS:  Let me go to Joe Tacopina now. 

JOE TACOPINA, WHITE COLLAR DEFENSE ATTORNEY:  Dan...

ABRAMS:  Go ahead Joe.

TACOPINA:  ... I‘ve got to say, you know the comments I just heard sort of indicate that he believes—Joel believes that the defense had something to do with this.  Obviously there‘s no (UNINTELLIGIBLE) or proof of that and I wouldn‘t believe that for a second, number one...

UNIDENTIFIED MALE:  Oh, I‘m not suggesting the defense had anything to do with...

TACOPINA:  Well you said if you‘re in trouble then you just make sure your juror gets a note and the case is over...

ANDROPHY:  That‘s the message in future cases...

TACOPINA:  Dan, this case...

(CROSSTALK)

TACOPINA:  ... I know Judge Obus well.  This case, if there was a conviction, would have been a groundball for appeal with the letter of outside influence affecting the one holdout defense juror.  That‘s who it was.  There is no question Judge Obus did not want to do this after six months and all those millions of dollars and life sacrifices people made, but the fact of the matter is this would be a groundball on appealed. 

He did the right thing, as painful as it is.  Because this one juror who days ago, you know basically read last rights to this jury because of her strident position about the government did improve their case beyond a reasonable doubt, was now apparently willing to convict on some counts...

(CROSSTALK)

TACOPINA:  ... and there‘s a letter involved. 

ABRAMS:  But Ron Fischetti, that‘s...

FISCHETTI:  Yes.

ABRAMS:  ... what you hope for...

(CROSSTALK)

ABRAMS:  ... when you get a jury is that they go back...

FISCHETTI:  Sure.

ABRAMS:  ... and they actually come to some sort of agreement and it sounds like they were...

(CROSSTALK)

ABRAMS:  ... ready to do that. 

FISCHETTI:  Well you don‘t know if that was going to happen.  I mean I

think Judge Obus, if he had this type of voir dire, which I‘m sure he did -

·         he‘s a very careful judge.  And this juror told him that I could no longer deliberate impartially, he has no choice.  He has to declare a mistrial in this case.  Let me tell you what I‘m concerned about and I think Joe agrees with me on this.  What‘s going to happen now is the next time we have jurors like this, we‘re going to have anonymous jurors.  We‘re going to have jurors that are sequestered so that they don‘t go home at night so this doesn‘t happen again, and that‘s a bad blow for all defense counsel. 

ANDROPHY:  That‘s why you have law enforcement personnel that are

supposed to be handling this type of situation.  If letters go into jurors

·         first of all, they should have protected this person after this juror told them about her concerns last week, this person should have been protected.  This person should have shouldn‘t have gotten any type of mail or any type of communication.

FISCHETTI:  How could she be protected...

ANDROPHY:  Those measures weren‘t put in place...

FISCHETTI:  Do you want the cops to lock her up and put her in a hotel room...

(CROSSTALK)

FISCHETTI:  I don‘t want a juror...

ANDROPHY:  No.

FISCHETTI:  ... one of my jurors to do that.  How do you do that?

ANDROPHY:  No.  You sequester...

FISCHETTI:  How do you protect jurors like that...

(CROSSTALK)

FISCHETTI:  ... free and open society.  I don‘t agree with that at all. 

ANDROPHY:  No, but you have to—under these circumstances, with a case tried for six months, you have to do certain acts to protect them. 

FISCHETTI:  Sure sequester them...

ANDROPHY:  And this would have been very easy to do.

FISCHETTI:  ... make them anonymous.  Sequester them. 

(CROSSTALK)

FISCHETTI:  That‘s what they‘re going to do, and that‘s not good. 

TACOPINA:  And Dan, Ron‘s right.  This case is now going to be the poster child for why prosecutors in high-profile cases are going—across the board going to get anonymous juries because we don‘t want any outside...

ABRAMS:  What‘s the big deal about that?  I mean I know that the media is going to be upset...

(CROSSTALK)

ABRAMS:  What‘s the big deal...

(CROSSTALK)

ABRAMS:  ... if the names of the jurors aren‘t released to the public?

TACOPINA:  Because you know why, the defense is always concerned when you have an anonymous or sequestered jury because it sort of sends some message that they need protection from the defendant or the defense lawyers or someone and that‘s certainly not a message you want...

ABRAMS:  If it‘s the law...

(CROSSTALK)

ABRAMS:  ... let‘s say it becomes the law of the state, then they say look...

UNIDENTIFIED MALE:  No.

ABRAMS:  ... the law of the state of New York is X, Y, and Z.

UNIDENTIFIED MALE:  It‘s still...

FISCHETTI:  You want to know what the law of the state should be, Dan, and you won‘t have this problem again.  Have the law of the state like it is on the federal side where you can have an 11-person jury.  I‘ve had a couple of them. 

ABRAMS:  Yes.

FISCHETTI:  If you have a situation like this, you can excuse that juror. 

ABRAMS:  I agree.

FISCHETTI:  And I‘ve had that happen to me.  Joe has had it happen to him...

TACOPINA:  Absolutely.

FISCHETTI:  ... in a case we were in, and you can take an 11-person verdict.  That would solve the problem...

(CROSSTALK)

ABRAMS:  Let‘s talk about the case itself.  Next time around, defense, they can complain and pretend that they‘re disappointed, bottom line is they‘ve got on advantage going in.  They‘ve now got testimony on the record and you know what, listen to what one of these jurors was talking about.  It sure seems that you want to talk about ready to convict, Mark Glatzer talking about corporate greed here.  Let‘s listen. 

(BEGIN VIDEO CLIP)

MARK GLATZER, TYCO JUROR:  I‘m not sure if I could call this corporate greed.  This was not—this wasn‘t business practices pushed too far.  This was not pushing the envelope.  This had almost—this had nothing to do with business.  This was people stealing money. 

(END VIDEO CLIP)

ABRAMS:  People stealing money.  Boy, it sure seems that it was pretty stage forward to this particular juror, Joe. 

TACOPINA:  Yes.  Dan, this case is not going away.  Kozlowski and Swartz may be home tonight but they‘ll have another day.  I mean it was 11 to 1 by all accounts, at least for a good portion of these deliberations it was 11-1 and there were clearly going to be convictions on larceny counts.  With that being said, Morgenthau has already made the announcement.  We‘re going for it again. 

ABRAMS:  You know what‘s interesting, Ron, is that a lot of—we kept talking again and again about this videotape of Dennis Kozlowski at this big party...

FISCHETTI:  Yes.

ABRAMS:  ... and that maybe this would get the jurors angry that he was spending all this money and the prosecutors claimed it was Tyco money that was being spent on this huge, elaborate birthday party.  But here‘s what one of the jurors said about how they felt on that issue. 

(BEGIN VIDEO CLIP)

GLATZER:  They were very convincing to me, but I think they did a lot of things that offended the jury, such as showing the—such as concentrating a lot on the things that they purchased that cost a lot of money.

(END VIDEO CLIP)

ABRAMS:  Ron, they were...

FISCHETTI:  And there‘s no question...

ABRAMS:  ... condescending to the jury. 

FISCHETTI:  Oh man, this case was so poorly tried by Morgenthau‘s office and I have great respect for the man.  I think every defense attorney knows that.  These cases generally are tried by the southern district of New York, U.S Attorney‘s Office.  He tried it this time and they just had too much fluff in this case for six months.  Instead of all the decorators, they should have had directors testify about money that was stolen. 

They tried it very poorly.  It won‘t happen the second time I promise you that.  They‘ll tear it down.  They‘ll focus on those counts—don‘t forget they charged them with enterprise corruption and those counts were even thrown out.  They didn‘t have evidence of that.  So they‘ll do it a lot better the second time around.

ABRAMS:  All right, let me ask everyone now, knowing what we know, I‘m going to go around the horn—Joe Tacopina, do you expect that Kozlowski and Swartz will get convicted the next time around now that the defense has a little bit of an advantage?

TACOPINA:  Well the prediction based on the juror‘s words would clearly be yes.  I mean it just looks like just—they used the corporation as their own personal piggy bank and that‘s not the right time to have that kind of a defense. 

ABRAMS:  Joel Androphy, you expect a conviction next time around?

ANDROPHY:  I don‘t know.  There‘s always jurors number four lurking around and obviously they‘ve had an example of one in this case and in the future when they select the next jury, they‘re going to be looking for number four again. 

ABRAMS:  Ron.

FISCHETTI:  I‘m not going there.  With Charlie Stillman and Steve Kaufman and knowing what the evidence is in this case, I don‘t know what‘s going to happen.  I‘m certainly not going to predict a conviction.

ABRAMS:  All right.  Joel Androphy, Ron Fischetti, Joe Tacopina, thanks a lot. 

Coming up, the FBI warns of a possible terror attack in a major U.S.  city this summer.  Plus NBC News has found an al Qaeda memo boasting that they influenced Spanish elections with the Madrid bombing. 

And if you watch the hit show “Queer Eye for the Straight Guy”, you know the five guys drive around in a car with the license plate “FAB 5”.  It turns out the straight guy that holds that New York license plate now feels hoodwinked.  He‘s sick of the stares.  We‘ll talk to him.

(COMMERCIAL BREAK)

ABRAMS:  Welcome back.  Deadly al Qaeda attacks around the world have increased over the past few months.  Most recently, that Madrid train bombing that killed 191.  Today Spanish officials found another bomb under a high-speed track containing explosive similar to those used in last month‘s attack.  It was safely defused.  But now, new evidence of what al Qaeda could be planning next.  NBC News has obtained what appears to be a planning memo written by an al Qaeda militant and it includes a hit list with targets.

NBC‘s senior investigative correspondent Lisa Myers has more. 

(BEGIN VIDEOTAPE)

LISA MYERS, NBC SENIOR INVESTIGATIVE CORRESPONDENT (voice-over):  Amid the deadliest string of terror attacks worldwide since 9/11, what appears to be a new al Qaeda message, obtained by NBC News, lays out in chilling detail a priority list of human targets for terrorists titled “Targets Inside Cities”.  The lengthy document extols what it calls military diplomacy written with blood and decorated with body parts and list preferred targets in the following order of importance—Americans British, Spanish, Australians, Canadians, and Italians. 

BEN VENSKE, TERRORISM EXPERT, “INTELCENTER”:  This document is a play list, if you will, of the future attacks that we can expect to see from al Qaeda. 

MYERS:  The message is signed by this man, Abdullah Zez Al-Mukrin (ph), leader of al Qaeda in Saudi Arabia.

UNIDENTIFIED MALE:  (SPEAKING FOREIGN LANGUAGE)

MYERS:  It appears in an Internet magazine well known to al Qaeda operatives and militants.  We‘re not showing the Web address.  The document seems to suggest going after not just economic and religious targets but individuals—bankers, businessmen, diplomats, rabbis, missionaries, tourists, even Muslim scholars who cooperate with the enemy.  It also tells terror cells worldwide to turn the land of the infidels into hell and provides detailed instructions on how to pass information yet avoid direct contact that might help police connect the dots.

STEVEN SIMON, FMR. NBC COUNTERTERRORISM EXPERT OFFICIAL:  It shows that there‘s an appetite for this kind of guidance on the part of would-be Jihadists.  It‘s operationally significant because it tells us the kinds of targets that the Jihadists are looking for. 

MYERS:  What‘s more the document boasts that violence works, claiming that the Madrid bombings, which killed 191, toppled the Spanish government and led to a decision to remove all Spanish troops from Iraq. 

VENSKE:  Al Qaeda learned that it was able to carry out an operation that would have an immediate political impact and change the position of a country. 

MYERS (on camera):  U.S. intelligence says the message appears to be authentic.  It preaches that beyond eliminating immediate targets these attacks achieve dual goals, -- quote—“spreading fear in enemy lines and lifting the morale of the Islamic nation.”

Lisa Myers, NBC News, Washington. 

(END VIDEOTAPE)

ABRAMS:  And on the heels of this report, the FBI and Homeland Security say they have preliminary intelligence indicating terrorists may look to strike bus and rail lines in major U.S. cities this summer.  No specific cities were named in the bulletin.  Officials warn the bombs could be hidden in luggage and on carry-on bags. 

MSNBC terrorism expert Steve Emerson joins us now.  Steve, how big a find is this document?

STEVE EMERSON, TERRORISM EXPERT:  Well the fact that it‘s on the Web

means that the al Qaeda organization and those that are affiliated with it

know that it will be discovered.  They‘re clearly reaching out to their own

constituencies, as well as the possible operatives in the field.  The fact

is that this type of message, if it does not have a hidden type of meaning

·         that is some type of hidden message—can certainly rally the troops. 

If it‘s got something embedded in it, then it could certainly have a discreet message saying go carry out an attack at this time, but we don‘t really want to let the world know about it. 

ABRAMS:  What do you make of the FBI warning? 

EMERSON:  The FBI warning I think is a combination of several things, Dan.  One is after Madrid all things are on the table again.  They showed that they sort of rear their head and totally under the radar screen of the Western intelligence agencies.  Number two, they‘ve attacked mass trail—mass rail and transit and that means that any place and any infrastructure that has that ability to carry a large number of passengers and civilians is susceptible to some type of attack.  And number three, I think there‘s some hard intelligence coming in from sources that are suggesting potential attacks possibly in the United States this summer. 

ABRAMS:  And yes, I was going to ask you about that—about the chatter.  What‘s the level—we always talk about the level of chatter going on.  Is that still a good indicator of when an attack is looming? 

EMERSON:  Well, I don‘t know because if we look at some of the hearings actually now regarding 9/11, we saw that the chatter was up in the summer of 2001, but the chatter pointed to attacks in Israel or in Saudi Arabia or elsewhere.  Obviously that was sort of a switch and bait by al Qaeda.  Clearly since 9/11, al Qaeda knows not to use telephone lines as much as they did.  So, this type of intelligence I think is contributed to this warning comes from much more of the shoe leather type of intelligence of informants and people on the ground. 

ABRAMS:  And anything that can be done to help prevent it?

EMERSON:  A lot of things can be done.  I mean clearly the bus industry is going to have to be sort of ramped up in terms of security, something that was not done on the train industry until just recently.  And that‘s something that we keep sort of following—doing only when we see a direct threat to that particular infrastructure.  Number two, there‘s got to be a willingness, again, the larger picture, 9/11 hearings all over again, connect the dots, make sure all the agencies are on the same page.  We still have that problem with the inability to put the large picture together. 

ABRAMS:  Steve Emerson, as always, thanks a lot. 

EMERSON:  Sure.

ABRAMS:  Coming up, “Your Rebuttal” on Martha Stewart‘s attempt to get a new trial based on a juror who may have lied about his criminal past.

And his license plate is used every week on the hit show “Queer Eye for the Straight Guy”.  Now the owner of the New York plate “FAB 5” says he‘s sick of being checked out in his car.  We‘ll talk to him next.

(COMMERCIAL BREAK)

(MUSIC)

ABRAMS:  It‘s a pretty simple concept.  Five gay guys shape up straight men, teaching them everything from how to throw the perfect cocktail party to how to look like a million bucks without spending a fortune, and most importantly, moisturize. 

So how was 65-year-old Frank Anthony Benicase supposed to know that when he bought his vanity license plate 20 years ago—“FAB 5”.  Now he‘s getting winks and waves and lots of weird looks while driving around town and he‘s not happy about it.  His initials after all are FAB and because there were already four other people in New York with the plate, he added the number 5 on the end.  That‘s right “FAB 5”.  “Queer Eye” producers contacted him last year wanting to buy the plate.  He refused but allowed them to use a mock up of it, charging 100 bucks, the cost of the plate‘s two-year registration.  Now he wants to be further compensated for the show, which has become a runaway success. 

Frank Benicase joins me now.  Mr. Benicase, thank you for taking the time.  Appreciate it. 

FRANK BENICASE, OWNS “FAB 5” LICENSE PLATE:  You‘re welcome. 

ABRAMS:  Before I ask you about your agreement, I‘m assuming that you are not a big fan and follower of the program. 

BENICASE:  I watched it once or twice. 

ABRAMS:  What did you make of it? 

BENICASE:  Well, it‘s not my type of show but I just was interested in seeing my license plate. 

ABRAMS:  So how does it feel driving around in the “FAB 5” mobile? 

BENICASE:  Well, it was all right until recently. 

ABRAMS:  And what happens to you...

BENICASE:  I get a lot of...

ABRAMS:  Yes, what happens to you now? 

BENICASE:  Well, I get a lot of comments and waves.  I think they‘re just friendly.  I hope that‘s all it is. 

(LAUGHTER)

ABRAMS:  You‘re concerned that you‘re getting checked out as you‘re driving around or... 

BENICASE:  Well, the people in town that know me, know better. 

ABRAMS:  All right.  So you entered into a deal with the makers of the program, what was the deal you made and why are you now contacting an attorney? 

BENICASE:  Oh, I‘m not contacting an attorney. 

ABRAMS:  You‘re not?  OK.  I was told you were.  OK.

BENICASE:  No, no.  The deal was—they asked to buy the plate, like you said, and I said I wanted to keep it, then they asked to use it and I gave them permission.  I signed a release.  But I was under the impression it was for a one-shot deal, one term, one show.  I wasn‘t aware it was going to be a series and I wasn‘t aware what type of show it was going to be. 

ABRAMS:  And so now what do you want? 

BENICASE:  Oh, I really don‘t want anything, I just—you know I thought maybe they would compensate me a little bit more than they did since the show was such a great hit. 

ABRAMS:  Are you thinking about getting rid of that license plate now? 

Is it just causing you too much hassle? 

BENICASE:  Oh, no, no.  No, I had it 20 years.  I think I‘ll keep it another 20. 

ABRAMS:  And what—any comments that stick out in your head?  People who have driven by you and said anything funny while you‘re driving around in the “FAB 5” mobile? 

BENICASE:  Well, a couple of people asked if I was going to do a do over. 

ABRAMS:  If you were going to do a do over? 

BENICASE:  Yes, like those fellows on their program do. 

ABRAMS:  And—let me ask you this.  Would you take, if they were to say to you look, we‘re not going to compensate you more, but we will give you a complete and total makeover for free, would you accept that? 

BENICASE:  Yes, sure.  That sounds good. 

ABRAMS:  All right.  So they are now on warning.  They have been told, right, that you would take to settle all this a complete and total makeover from the “FAB 5”, correct? 

BENICASE:  Sure, definitely. 

ABRAMS:  All right.  Well it seems that maybe we‘ve worked out some sort of deal.  Frank, thanks a lot for taking the time and being a good sport about this.  Appreciate it and good luck to you with your driving and your license. 

BENICASE:  Thank you. 

ABRAMS:  Coming up, your e-mails on Martha Stewart and what would you think should happen to—what you think should happen to the juror who allegedly lied about his criminal past on the trial questionnaire.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, your e-mails.  The question—should Martha Stewart get a new trial?  Stay with us.

(COMMERCIAL BREAK)

ABRAMS:  Now it‘s time for “Your Rebuttal”.  We discussed Martha Stewart‘s defense team asking for a new trial alleging that juror Chappell Hartridge intentionally lied about his criminal past on his jury questionnaire in an effort they say to get on the jury. 

From Virginia Beach, Ellen Pearce.  “Shouldn‘t the court system take this opportunity to make a strong statement that this behavior will not be tolerated.  Prosecute him with all the vigor they went after Martha.”  I say if he lied, I agree with you. 

Rob M. from New York.  “How can a jury lie under oath to get on a jury and then vote to convict someone of lying while she was not under oath?  It seems hypocritical to me.”  It is hypocritical, but still probably won‘t mean Martha Stewart gets a new trial. 

Finally, last night my “Closing Argument” on key witnesses in high-profile cases being smeared by defense attorneys who are now expected to engage in character assassination when trying to prove witnesses are lying. 

Dale Patterson from Orlando, Florida has taken offense.  He writes, “How dare you read a five-minute diatribe about witnesses being slimed in courtrooms and not once did you mention that prosecutors slime defense witnesses just as often.  It is part of what has become the competitive sport called jury trials.”

No, Dale, not just as often.  In fact not nearly as often.  You can argue that prosecutors do it on occasion.  But since the vast majority of the time the police arrest the right person, it means the defense most often playing games with the truth and sliming witnesses who are testifying honestly. 

Your e-mails abramsreport—one word -- @msnbc.com.  We‘ll go through them.  Please include your name and where you‘re writing from. 

Coming up next, “HARDBALL” with Chris Matthews.  Chris talks with comedian Al Franken on the launch of the radio program “The O‘Franken Factor” on the new liberal radio network and Joe Trippi, Howard Dean‘s former campaign manager joins Chris as well.

Have a good weekend and I will see you next week. 

END   

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