updated 4/8/2004 11:21:09 AM ET 2004-04-08T15:21:09

Guests:  Andrew Terrill, Michelle Suskauer, Joe Episcopo, Glenn Andrews, William Johnson, John Coffee, Norm Early, Karen Russell

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

DAN ABRAMS, HOST:  Hi, everyone.  Violence spreads in several key cities in Iraq.  Since Sunday, 32 Americans killed.  This as the U.S.  military vows to destroy the militia of radical Shiite cleric Muqtada al-Sadr.  They have been behind several attacks in southern Iraq and Baghdad, and it could mean going into the most sacred mosque to get the job done.  We‘ll get an update from the Iraqi capital.

Plus, Rush Limbaugh‘s attorney tells a Florida appeals court that the authorities had no right to take Limbaugh‘s medical records last year while prosecutors say they had no other way to determine whether Limbaugh got the drugs illegally. 

And juror number four in the Tyco trial now says she never would have convicted the two executives on trial for looting $600 million from the company and says the trial would have likely ended as a hung jury.  But we ask, is that really true?  We‘re going to talk to two of her fellow jurors. 

But first, it‘s starting to feel like major combat operations are far from over in Iraq.  Fallujah under siege for a third day and there‘s spreading violence against coalition forces in several other cities.  Thirty-five Americans dead since Sunday, fighting in some cities against Saddam loyalists, and in others Saddam‘s long-time enemies, including followers of this man, Muqtada al-Sadr, a radical Shiite cleric.  Arguably he has become one of the most dangerous men in Iraq for U.S. troops, blamed for inciting much of the increasing violence by encouraging his band of about 3,000 followers to revolt against U.S. occupation. 

Secretary of Defense Donald Rumsfeld denies that the situation is out of control and has promised to stamp out the violence. 

(BEGIN VIDEO CLIP)

DONALD RUMSFELD, DEFENSE SECRETARY:  Those who oppose the Iraqi people‘s transition to freedom and self-rule will not be permitted to derail it.  U.S. forces are on the offense.  The United States and our partners and free Iraqi forces are taking the battle to the terrorists.

(END VIDEO CLIP)

ABRAMS:  NBC‘s Richard Engell has the latest from Baghdad.

(BEGIN VIDEOTAPE)

RICHARD ENGELL, NBC NEWS CORRESPONDENT (on camera):  Dan, the fighting in Fallujah has been intense.  In one incident between 15 and 40 Iraqis were killed when the military fired on a mosque.  The military says it was receiving fire from that mosque.  Witnesses say the military‘s bomb landed in the mosque courtyard and that most of the people were killed by flying shrapnel and were actually standing outside of the building. 

The military also is confirming today that at least three Marines have been killed in the fighting in Fallujah.  This on top of the 12 Marines who were killed yesterday in Ramadi, another city in this so-called Sunni Triangle.  Now, adding to this atmosphere of chaos here in Iraq is the continuing uprising led by the radical Shiite cleric Muqtada al-Sadr.  Today his supporters, the so-called Mehdi Army, fought Ukrainian troops in Kut.  At one stage, forcing the Ukrainians to abandon their post and leave the city.  The U.S. military says it will take action to destroy Sadr‘s Mehdi Army—Dan.  

(END VIDEOTAPE)

ABRAMS:  Richard Engell in Baghdad.  Thanks a lot.  More now on the mosque that was hit by that U.S. rocket.  The military says insurgents were using it as a shield and they retaliated with limited force. 

(BEGIN VIDEO CLIP)

RUMSFELD:  We caution all pilgrims that the holy cities are potentially dangerous places during this period. 

(END VIDEO CLIP)

ABRAMS:  The question, what does it mean that U.S. forces now have to start battling in mosques to get the job done, and is the situation really under control?  I‘m joined now by retired General Wayne Downing, who‘s also an MSNBC analyst, and Andrew Terrill, a research professor of national security affairs at the U.S. Army War College.  Thank you both for joining us.  Appreciate it. 

All right, General Downing, I mean, look, if they are firing from mosque, I assume the answer has got to be you‘ve got to go into the mosque, correct? 

GEN. WAYNE DOWNING, U.S. ARMY (RET.):  That‘s right, Dan.  I mean you don‘t want to commit any kind of a crime against a religious site.  We‘ve never wanted to do that.  We‘re very careful with that.  But if you‘re receiving fire, then, you know, you have to take the right action.  You know and—you know I‘m not sure what hit the mosque.  It was a rocket, 2.75-inch rocket from a Cobra helicopter, that‘s a lot different from a 500-pound bomb.  It doesn‘t like it was a bomb.  So it was probably the appropriate weapon against the appropriate threat. 

ABRAMS:  Professor Terrill, is there any choice, apart from going after these mosques, if they‘re firing from them? 

W. ANDREW TERRILL, U.S. ARMY WAR COLLEGE:  Well I‘m actually a lot less concerned about the mosques in Fallujah than some of the mosques in southern Iraq, especially in places like Kufa and Najaf and Karbala, which are especially holy mosques...

UNIDENTIFIED MALE:  Yes.

TERRILL:  ... for the Shias.  The Shias, should they see this mosque in Kufa, for example, being hit by heavy fire, something like that, that imagery is going to be a problem.  It could cause people to rally to Muqtada al-Sadr.  So this factor is going to have to be carefully weighed when you develop alternatives for how to address the military situation that is in that part of the country. 

ABRAMS:  But Professor, that‘s what they want, right?  I mean that‘s why they‘re choosing these mosques as a site, because they‘re hoping that they will effectively serve as psychological shields, and as a result, maybe that the U.S. won‘t go in, and if they do, that it will serve as incredible propaganda value. 

TERRILL:  Right.  See, that‘s the thing we have to avoid doing.  We cannot play into their hands.  We cannot hit a mosque in Kufa if there‘s an alternative to doing that, like surrounding and containing the forces there for a while.  Because if you do hit that and it hits Al Jazeera and it hits Al Alam television and it hits Al Arabiya, that is going to be images that would cause Sadr‘s ranks to swell and there are military implications to that happening as well.

ABRAMS:  But General, I can just see it, all right.  They will say—the U.S. military will say, look, we didn‘t have any other alternatives, in a case where a mosque is hit. 

(CROSSTALK)

UNIDENTIFIED MALE:  Yes.

ABRAMS:  They are firing from a mosque.  You have to ask—there will be certain times when there‘s nothing else they can do. 

DOWNING:  Dan, I think you‘re missing the point on this.  I think what the professor is saying, the three shrines that he described, the Shia shrines, these are like St. Peter‘s.  These are like the Dome of the Rock in Jerusalem.  You cannot hit those.  I mean no matter what goes on we cannot attack those mosques because of the tremendous symbolism that they have across the entire Islamic world and certainly the Shia world.  So we‘ve just got to be very, very careful, and we‘ve got to try to pick our battles.  But we‘re not going to attack those kind of sacred shrines. 

ABRAMS:  Even if, you know even if he goes into one? 

DOWNING:  Absolutely.

ABRAMS:  Yes.

DOWNING:  We‘ll let him sit there.  But we are not going to drop a bomb on the Shrine of Ali.  I mean we‘re just not going to do that.  I mean we‘ll have to find some other thing.  Some other mosque in some other city, there‘s a big fight going on.  You don‘t want to hit it.  But if you had to, you would to protect yourselves.  Those other shrines, we avoided those during the war for exactly that kind of reason, Dan. 

ABRAMS:  General, let me ask you, when you‘re on the ground, all right, and...

DOWNING:  Yes.

ABRAMS:  ... you‘re taking fire, for example, are there orders that are in place, for example, you know, X, Y and Z place completely off limits?  I don‘t care what‘s happening there?  I mean you‘re saying, for example, there are certain places you cannot and must avoid attacking.  Are those orders very clear when you‘re the person on the ground there...

(CROSSTALK)

ABRAMS:  ... taking fire, et cetera?  Yes.

DOWNING:  Absolutely.  You know, when you‘re going into an area, and especially one that has great significance like that, you‘re going to draw a big circle around this thing, Dan, and you‘re just going to stay away from it.  Now, in any other type of a situation, the commander always has the right to take actions to protect himself and to protect his soldiers.  But he also has to act appropriately.  In other words, if you‘re getting small-arms fire, the appropriate response is probably not a 500-pound bomb, it is probably your own small-arms fire, maybe grenades, grenade launchers.  But you‘ve got to balance that.  And these rules of engagement are known to the troops, Dan, and they practice under those rules of engagement.  They train under them all the time. 

ABRAMS:  General, let me ask you just a more general question.

DOWNING:  Sure.

ABRAMS:  What do you make of the increasing violence?  I mean is it spiraling or do you think that the secretary of defense is right, that things are under control? 

DOWNING:  Well, listen, things are not under control in those cities where we‘re having these battles.  Now, this is not around the country.  I think a lot of this is spontaneous.  I don‘t think we yet have a link that we can see between the Sunnis and the Shias.  Now—Dan, one of the things you have to remember is 70 to 75 percent of the Sunni Triangle is unemployed young men, you know, the ages of 16 to 40, every one of them armed.  And so many of the attacks and the fights that you‘re seeing right now are these young men going out and joining some of the organized insurgents just to fire off a magazine or two, or shoot an RPG at some Americans.  So we shouldn‘t read too much into this thing.  We‘ve got to let this thing develop.  But right now, this is not 1968.  This is not an uprising across the country, Dan.

ABRAMS:  Professor Terrill, I‘m almost out of time, but do you think that it is essential that the U.S. go after al-Sadr at this point, or do you think that maybe executing an arrest warrant on him, killing him, might not be worth the value of having him at this point? 

TERRILL:  I think it‘s essential that we go after the (UNINTELLIGIBLE) army, that we take those activists who are seizing police stations...

ABRAMS:  What about the leader? 

TERRILL:  But the leader, as far as I‘m concerned, he can be publicly

·         he can be contained within the areas where he‘s hiding, be it the Kufa Mosque, be it his office at al Najaf, if that is blocked off to us and too close to Ayatollah Sistani for us to feel comfortable about going in there.  But as far as I‘m concerned I‘d rather isolate from his power base, destroy his power base, and at that point he becomes in significant. 

    

ABRAMS:  Yes.  Yes.  All right, General, Professor, I always learn so much when I have guests like yourselves on the program.  Appreciate it.

TERRILL:  It‘s a pleasure Dan.

DOWNING:  Thanks, Dan. 

ABRAMS:  Coming up, Florida prosecutors say they got Rush Limbaugh‘s medical records fair and square by going to a judge, getting a search warrant to see if Limbaugh was illegally doctor-shopping for painkillers.  But now Limbaugh‘s attorneys say these guys didn‘t have any right to do it. 

Today the case was in front of the Florida Court of Appeals. 

Juror number four from the Tyco trial, the alleged holdout speaks out saying she was ready to find the two executives accused of stealing 600 million from the company not guilty, and she talks about whether she was really giving the OK sign to the defense team. 

And both sides in the Kobe Bryant case are pointing fingers, accusing the other of delay and claiming it‘s my side that wants to get this case to trial immediately.  We‘re going to ask who really benefits from the delays. 

What do you think?  Your e-mails, abramsreport@msnbc.com.  Please include your name and where you are writing from. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Rush Limbaugh‘s attorneys face off with Florida prosecutors at a state appeals court.  The question, did prosecutors cross the line by going after Rush‘s medical records? 

(COMMERCIAL BREAK)

ABRAMS:  Welcome back.  Rush Limbaugh‘s high-powered attorney, Roy Black, back in court today, arguing that prosecutors had no right to take Rush‘s medical records the way they did.  Prosecutors say they got a search warrant and needed the records to investigate whether Rush was doctor-shopping, meaning obtaining prescription painkillers from several doctors at the same time.  Attorney Roy Black says they didn‘t have a right to do it.  Both sides argued before the Florida Court of Appeals today. 

NBC‘s Mark Potter was there.  So, Mark, how did it go? 

MARK POTTER, NBC NEWS CORRESPONDENT:  Well, it went well.  It lasted only about an hour, and the core argument in the hearing today was privacy rights versus the right of prosecutors to conduct a thorough investigation.  On the issue of whether prosecutors can use Limbaugh‘s medical records to try to build a criminal case against him, Roy Black, the attorney you were talking about, argued that the seizure of those records last November actually was a gross violation of Limbaugh‘s privacy rights.  And he tried to convince the judges that those prosecutors should not be able to use those records. 

(BEGIN VIDEO CLIP)

ROY BLACK, RUSH LIMBAUGH‘S ATTORNEY:  You cannot seize first and then do it later, this court said, and you cannot have—you cannot resolve this by some evidentiary hearing afterwards.  The invasion is an invasion of the right of privacy.  The Florida legislature decided the intrinsic harm here was just going in and having the arm of law enforcement take your records from the hands of your doctors and put it in their office, as they did in this case.  That violates the right of privacy that the citizens of this state voted for. 

(END VIDEO CLIP)

POTTER:  Now, Attorney Black said that instead of seizing those records by search warrant, the prosecutors should have used a subpoena, which under Florida law would have required them to give Limbaugh advance notice so he could go to court to argue before a judge over which records they could actually have.  Now, in his presentation the prosecutor, Jim Martz, said advance notice could possibly lead to those records being destroyed.  And he also pointed out that in getting the search warrants, the investigators had to convince two separate judges that there was probable cause to believe that in those records there was evidence of criminal wrongdoing.  He spoke to reporters after the hearing. 

(BEGIN VIDEO CLIP)

JAMES MARTZ, FLORIDA ASST. STATE ATTORNEY:  The heart of the issue is has Florida lost its right to use a search warrant when they‘re investigating criminal conduct?  Has it now been reduced to we have notice the target of an investigation that we want to look at the evidence of the felonies he‘s committed?  I don‘t think so. 

(END VIDEO CLIP)

POTTER:  Now, at issue is whether Limbaugh may have violated Florida law by obtaining overlapping prescriptions in a practice known as doctor shopping.  Limbaugh has denied any such wrongdoing.  The judges have said - - indicated—the court has indicated that it could be several weeks before we get a ruling, and many people here believe this ruling is critical.  In fact, could be make or break in terms of the Limbaugh investigation.  Dan, back to you. 

ABRAMS:  Mark Potter thanks a lot.  So who‘s right?  Joining me now, Florida criminal defense attorney Joe Episcopo, who agrees with Limbaugh‘s attorney, Roy Black, and Palm Beach attorney Michelle Suskauer who sides with the state. 

All right, Michelle, I think that for the layperson they‘re going to say, wait a second.  They can just go in and take the medical records without any sort of hearing, and that makes it feel like medical records simply aren‘t protected. 

MICHELLE SUSKAUER, DEFENSE ATTORNEY:  Well, I don‘t think that a decision that‘s going to be coming out of this court is going to be doing that for the average person who‘s not conducting any criminal activity that‘s contained within their medical records.  I think what it‘s going to mean for the average person is that...

ABRAMS:  You know what, Michelle...

(CROSSTALK)

ABRAMS:  ... I hear the sirens.  Let me just let the sirens go by. 

SUSKAUER:  Yes.

ABRAMS:  I‘m going to let you think for a moment...

SUSKAUER:  OK.

ABRAMS:  ... concentrate on that thought and I‘m going to let Joe Episcopo get into this on the other side.  Joe, look, here‘s the argument on the other side.  The argument goes they got—they went to two judges.  How else are you going to be able to investigate doctor shopping unless you get medical records?  And as the prosecutor pointed out, you warn someone it‘s coming, any criminal—I‘m not saying Rush Limbaugh, but you know a typical criminal is probably going to get rid of those records. 

JOE EPISCOPO, CRIMINAL DEFENSE ATTORNEY:  Well, first of all, we‘re talking about just one specific exception, namely, medical records in a medical facility.  In other words, anything else they can get a search warrant for but not for these records.  What they have to do is go by subpoena.  Now, you‘re saying that a doctor, who‘s the custodian of those records, is going to risk committing a 15-year offense tampering with evidence to save somebody else?  Well, there are remedies then to prevent that.  He‘ll lose his license.  He‘ll go to jail...

ABRAMS:  So explain to us—Joe, explain to us the distinction between getting the records from—for example, let‘s say you have medical records at a home versus medical records at a doctor‘s office.  The law distinguishes between the two. 

EPISCOPO:  Yes, medical records at a home would be fair game.  If they‘re there as part of the search of the home, you‘d be able to get them.  The privacy aspect was the records that are kept by doctors are private, because they want people to be open with their doctors, to express everything they can...

ABRAMS:  Yes.

EPISCOPO:  ... and know they have the privacy that it will be protected.  Listen, they could have got these records.  They do a subpoena.  Each record is then examined and fought over.  They would still have probably gotten them.  But since they used the wrong procedure, they‘re going to be suppressed as a remedy to protect one‘s privacy rights. 

ABRAMS:  And Michelle, what about the point that Joe makes, which is you know the prosecutors are suggesting people are going to destroy evidence in a case like this, if they know that it‘s coming.  But if it‘s in a doctor‘s office, what Joe is saying what, you‘re going to get the doctor to start helping out and risk many years in prison by destroying evidence? 

SUSKAUER:  Well, you know, first of all, as a defense lawyer the first thing you‘re going to look at when you have a case and there‘s evidence that the state has is the integrity of the evidence.  And certainly you‘re assuming—Joe‘s assuming that the doctors are not complicit in this and they may be, and they may be trying to protect themselves.  So certainly what the prosecutors did is they used the element of surprise here and went ahead and did not give notice.  But they didn‘t go ahead and unseal the records and looked at them.  What they did was they followed a case called Viatical in the fourth district, and what they did was they got the records, then they gave notice.  They were sealed.  Then they had a hearing.  So I think...

UNIDENTIFIED MALE:  But wait a minute.

SUSKAUER:  ... was they still protected privacy rights. 

EPISCOPO:  Viatical was not a medical facility.  They were a corporation.  That‘s different.  Remember, we‘re talking about a medical facility. 

SUSKAUER:  You know, and I think what the fourth is going to do in this case is they‘re going to build from that Viatical case...

ABRAMS:  All right.

SUSKAUER:  ... and they‘re going to give a road map to prosecutors. 

That‘s what I think that is really going to happen here...

ABRAMS:  ... I‘ve been told, Michelle, that the judges were asking a lot of hard questions to the prosecutors in this case, suggesting that maybe Limbaugh is going to win and that they are going to be kept out.  Do you agree in terms of that assessment? 

SUSKAUER:  You know, I don‘t.  I was watching the hearing today.  I was there.  And I think they were shooting hard questions at both sides.  And the judges were really knowledgeable in terms of knowing the cases, knowing the statutes.  They really understood the issues.  So what I really think they‘re going to do is the state is going to get these records, but they‘re going to give a road map as to what to do when the state attorney has a search warrant and they get medical records.  I don‘t think they‘re going to take away the state‘s investigative powers to use a search warrant to get medical records. 

ABRAMS:  Michelle, don‘t you think, though, that they have singled out Rush Limbaugh to a certain degree? 

SUSKAUER:  You know, I think we are just not hearing about other cases, because it may be Joe Smith.  But we‘re hearing about Rush Limbaugh because he‘s Rush Limbaugh.  And I think this is, you know this is something we‘re going to be hearing about for months and months...

ABRAMS:  Yes.

SUSKAUER:  ... maybe even years to come. 

ABRAMS:  Joe, I‘m not so sure there have been other cases just like this where in Florida where they‘ve gone after the records...

EPISCOPO:  As a matter of fact, they found a case of a judge who had this very problem...

ABRAMS:  Yes.

EPISCOPO:  ... and the state attorney didn‘t do anything to him...

ABRAMS:  All right.

EPISCOPO:  Ten years he was doing it. 

ABRAMS:  All right, Joe Episcopo and Michelle Suskauer, thanks a lot. 

SUSKAUER:  Thanks. 

ABRAMS:  Coming up, keeping true to form, the Tyco trial‘s controversial juror number four contradicts her fellow jurors and now says I was never going to find the two Tyco executives guilty of anything.  Oh, really?  We‘ll talk to two other jurors from the trial. 

Kobe Bryant‘s attorneys say delays in moving forward with the rape trial have taken a personal and professional toll on the NBA star, while the accuser‘s mother says her daughter‘s safety is at risk until the trial is over.  They both say they want to move forward immediately.  But if that‘s true, then what‘s taking so long?  Who is really behind the delays? 

(COMMERCIAL BREAK)

(NEWS BREAK)

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

ABRAMS:  Welcome back.  She was referred to as the holdout granny by one newspaper, the 79-year-old juror number four in the Tyco trial.  First she was accused of flashing an OK sign to the defense team during deliberations.  Then Ruth Jordan seemed to refuse to vote guilty on any of the counts against Tyco bosses Dennis Kozlowski and Mark Swartz.  Finally she received an intimidating note and anonymous phone call, a mistrial was declared.  Other jurors said they were all on the verge of a verdict when the judge announced it‘s over.  But in an interview airing tonight on “60 Minutes II” Ruth Jordan says she was never ready to convict.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  You believe or you don‘t believe that you would have voted guilty on any count? 

RUTH JORDAN, TYCO JUROR:  I don‘t think I would have voted guilty on any count. 

UNIDENTIFIED MALE:  You don‘t think you could have gotten there? 

JORDAN:  I don‘t think so. 

(END VIDEO CLIP)

ABRAMS:  But Jordan does admit raising her hand to vote guilty during polls in the jury room.  Joining me to talk about what to make of all of this is two other jurors—juror Glenn Andrews and juror William Johnson.  All right, thank you both for coming on the show. 

Let me first just get your reaction, Mr. Andrews, to hearing Ruth Jordan say I never would have convicted on any of the counts. 

GLENN ANDREWS, TYCO JUROR:  Well, I‘m outraged and I feel deceived. 

ABRAMS:  Tell me why. 

ANDREWS:  Sorry? 

ABRAMS:  Tell me why. 

ANDREWS:  Well, I think that—I was led to believe that she still had a good faith belief in what she was doing was right, and I think that if she had any pre assumptions on what her verdicts were going to be, that that‘s quite impossible. 

ABRAMS:  You want to be more even outraged?  Did you hear this one?  She said on a couple of occasions I raised my hand to vote guilty on certain counts, but I didn‘t feel it.  I was abandoning my own standards and beliefs.  I was trying to be somebody else.  I don‘t know what kind of psycho babble that is, but it sounds to me like she was basically saying she just wasn‘t going to go there. 

ANDREWS:  Absolutely.  That‘s what it sounds like to me.  And that‘s not what she presented to us, you know.  And I feel like we had a lot of our time wasted already, and for her to go on and waste more of our time, it‘s terrible.  It‘s terrible that we had to go through that.  We could have easily just let everything be over with that Monday, and know going another week, and for her to know what she was already going to do, it‘s just terrible that we actually had to think that we were going to be able to do something, you know, and it hurts me.  It hurts my heart to know that we put all this effort into it and she just basically toyed with us, you know.

ABRAMS:  Mr. Johnson? 

WILLIAM JOHNSON, TYCO JUROR:  Yes. 

ABRAMS:  What do you make of it? 

JOHNSON:  At no time did I actually believe that she would vote guilty, even if she told the entire room that she would vote guilty.  That Friday when deliberations broke down, she was adamantly not going to vote guilty.  She came in that Monday as if she had some sort of epiphany saying that she was going to then possibly lower her standards of proof to our level, so that she could then possibly find guilt.  You I never found that believable at all. 

(CROSSTALK)

ABRAMS:  Sorry.  Did someone want to speak?

ANDREWS:  I disagree.  I really felt that, you know, she could have done fair deliberations.  Like I said, I feel deceived.  And I refuse to think that I might have been naive about the whole thing.  You know, I think that I was purposely led to believe that she was going to continue on in good faith. 

ABRAMS:  And so why—Mr. Andrews, why did so many of the jurors believe that you were so close to reaching a verdict?  I mean so many of you have come out and said it ranges from 30 minutes to hours away from reaching unanimous verdicts. 

ANDREWS:  Well, in a sense we did everything that the defense did—or the counsel, rather.  We threw everything at Ruth Jordan but the kitchen sink.  We presented every last piece of evidence that was presented to us and we knew that some of it was pretty compelling and you had no choice but to vote a certain way... 

ABRAMS:  And Mr. Johnson, did she then give you the impression that she was going to convict?  I mean because we have heard jurors say that they were only minutes away from convicting on certain counts.

JOHNSON:  On several charges, yes, she did vote guilty in our initial straw polls, and we said that these polls would stand until actually that final Friday, when we‘d actually do a real poll and however we came out we would submit it to the judge.  That Thursday evening she started to flip-flop and change some of her decisions from guilty to not guilty. 

ABRAMS:  Yes.  Let me bring in Columbia law professor John Coffee into the conversation.  He is a while-collar expert.  Before I ask you about one other comment she made, what do you make of what‘s going on here with Ruth Jordan and these jurors? 

JOHN COFFEE, COLUMBIA LAW PROFESSOR:  Well of course she has a strong incentive after the fact to appear principled and consistent...

UNIDENTIFIED MALE:  Exactly.

COFFEE:  ... and that could result in a certain amount of historical fiction and reconstruction.  It‘s not unusual. 

ABRAMS:  Let me ask you—now Ruth Jordan is a lawyer, OK, and she claimed that she was focusing on intent.  And here‘s what she said in the interview. 

“Intent—intent was the center of the whole case, at least for me.  I don‘t think they thought—meaning the defendants thought—they were committing a crime.”

What is the legal standard, Professor?  Do the defendants have to have known that they were committing a crime, or should a reasonable person have known that he or she was committing a crime? 

COFFEE:  Well, it‘s really neither.  The defendant has to actually be aware that they are committing each element of the offense, but they don‘t have to know they‘re committing a crime as such.  So here they had to know that they were receiving property without proper authorization.  That they were, in effect, taking someone else‘s property without it being authorized by the board of directors or anyone else.  If they know that, then they can be guilty.  But it‘s not enough that they merely be negligent or even unreasonable.  They have to have actual knowledge.  That‘s what Judge Obus charged them.

ABRAMS:  And Mr. Andrews, did she ever say things like, well, you know, I‘m a lawyer, and I know X, Y and Z.

ANDREWS:  No.  Never.  She never—as a matter of fact, she would get pretty upset and frustrated if we ever mentioned to her that maybe she would have some expertise in the matter, being that she had been a lawyer. 

ABRAMS:  And she would say look, I wasn‘t a good lawyer.

ANDREWS:  No, she would just say don‘t mention it.  You know it really has nothing to do with what‘s going on.  But we used that sometimes to perhaps persuade her that, you know, it didn‘t matter if the defendants didn‘t know or not whether or not if they were committing a crime.  We knew that in fact if they had taken someone‘s property and passed it on to benefit themselves that that was a crime and that was all we needed to know. 

ABRAMS:  Professor Coffee, on the whole do you think that this demonstrates that the jury system works or doesn‘t work? 

COFFEE:  I think this.  Bizarre as the Tyco trial was, the same pressures that focused on the Tyco jury are going to focus on the Enron and the WorldCom jury very soon.  Those will be equally long trials with millions of shareholders out there who are angry, and at least some people out there who may want to create a mistrial by deliberately sending a phony threatening letter.  And that means the courts are going to have to do more to protect the juries.  I think what they really have to do is religiously protect the anonymity of the juries.

ABRAMS:  I agree with you.  I did my editorial on this a couple of nights ago that I just think, you know let the—if you need the prosecutors and defense to know it, that‘s fine, don‘t make it part of the public record until the end of the case.  Let the media and the public in on jury selection but you don‘t have to disclose their names.  Call them juror number one...

COFFEE:  And then they can‘t get threatening letters. 

ABRAMS:  Yes.  Look, I agree with you.  All right...

JOHNSON:  Right.

ABRAMS:  ... Glenn Andrews and William Johnson, hey, thanks a lot again for taking the time to come back and Professor Coffee...

ANDREWS:  Thanks for having us.

JOHNSON:  Thank you.

ABRAMS:  Coming up, both the prosecution and defense teams in the Kobe Bryant case say they are eager to get this case to trial, but it‘s not moving forward.  So the question—which side is really benefiting from the delays?  We‘ll take a look with our legal team. 

And my “Closing Argument”—why a Texas judge blew it by refusing to accept a plea deal worked out between prosecutors and the wife of Enron executive Andrew Fastow.

Don‘t forget your take.  E-mails, abramsreport@msnbc.com.  I‘ll be going through them at the end of the show. 

(COMMERCIAL BREAK)

ABRAMS:  Welcome back.  Kobe Bryant‘s defense attorneys come out swinging.  Now saying they‘re the ones who want a speedy trial, blaming the prosecutors for holding up the case by withholding evidence and having too many pretrial hearings. 

The defense claims “Kobe Bryant has always wanted an early trial date.  The accuser‘s false accusation of rape has exacted a personal and professional toll on Mr. Bryant that is as incalculable as it is indescribable.  No one looks forward to this case being over more than Mr.  Bryant.”

The defense filing comes on the heels of a letter the alleged victim‘s mother wrote to the judge during last month‘s round of hearings, pleading to have the case brought to trial quickly. 

She wrote, “No one involved in this case has had to make the life changes and compromises that my daughter has had to make.  Her life is on hold and her safety is in jeopardy until the case is over.”

Prosecutors even filed a motion last week blaming Bryant‘s defense team for the slow pace.  So, with all the finger pointing and everyone agreeing at least on paper that it‘s time to get this case to trial, is it really everyone‘s true intention?  Who may want the case to be delayed a little bit?  Who might benefit from it? 

Let‘s ask our legal team—former Denver District Attorney and MSNBC analyst Norm Early and defense attorney Karen Russell, who is also the daughter of basketball great Bill Russell.  I like to throw that in once in a while in the Kobe Bryant case just because...

(LAUGHTER)

ABRAMS:  ... you know Bill Russell.  You know they don‘t get bigger than Bill Russell.  All right, so Norm...

KAREN RUSSELL, DEFENSE ATTORNEY:  Thank you Dan.

ABRAMS:  ... let me ask you this question, Norm.  Look, the alleged victim has a legitimate gripe.  This is terrible for her.  It‘s making her you know have to not live at home, et cetera.  Kobe Bryant has a legitimate gripe here.  Is it possible that it‘s not her fault and it‘s not his fault, but it‘s the prosecutor‘s fault? 

NORM EARLY, FMR. DENVER DISTRICT ATTORNEY:  You know, a delay in a trial never benefits a prosecutor.  It only inures to the benefit of defendants.  Evidentially, it inurns to the benefit of the defendant...

ABRAMS:  Why? 

EARLY:  Why?  Memories fade, people die, evidence is lost.  All kinds of things happen between the date that a case is set and the date it actually goes to trial.  In addition to that, in this case you have a victim who cannot live a normal life.  She‘s got a living hell, and it will continue until this case is over.  On the other hand, we see Kobe Bryant on TV every other night or every three nights playing very good basketball, not meaning that there‘s not some internal turmoil, but he doesn‘t have to keep moving from state to state to state to state to stay ahead of defense investigators and to stay ahead of media people who continually hound...

ABRAMS:  Look...

EARLY:  ... this victim. 

ABRAMS:  ... I agree with you, Norm, and I‘ve said before.  I‘ve said before let‘s assume for a moment that both the alleged victim and Kobe Bryant believe they‘re telling the truth.  Let‘s assume Kobe Bryant...

EARLY:  And that‘s entirely possible. 

ABRAMS:  ... let‘s assume for a moment Kobe Bryant believes he didn‘t rape this woman.  Let‘s...

EARLY:  Right.

ABRAMS:  ... assume for a moment she believes that she was raped...

EARLY:  And that would not be an unusual situation. 

ABRAMS:  That‘s—right—and I think that in comparing those two, I think she‘s gotten it worse than him.  But... 

EARLY:  No question. 

ABRAMS:  ... but, even if that‘s the case, that doesn‘t answer the question about the prosecutors in this case. 

(CROSSTALK)

ABRAMS:  ... I think that neither of them have any interest in delaying this trial.  What about—I mean you may say the prosecutors don‘t have an interest in delaying it, but here‘s what the defense says as to what‘s been happening.

Defense says prosecutors have been causing the delays by refusing the defense presence at testing of physical evidence, defense access to physical evidence, a court order to turn over clothing to the defense, to hold a rape shield hearing when scheduled and to timely provide discovery material. 

EARLY:  None of those things have delayed this trial.  They may have delayed when the hearings occurred.  They may have delayed when testing occurred.  They have not delayed the trial.  The defense also says Kobe Bryant has consistently requested an early trial date.  Absolutely untrue.  In the very same motion they say that.  If he had requested an early trial date, he would have been given an early trial date...

ABRAMS:  Karen Russell—Karen, go ahead.

RUSSELL:  No, that‘s not true.  What he said is the judge has his way of doing things and will agree that we‘ll do these pretrial hearings before he enters a plea, because that‘s the way the judge likes to do it.  But meanwhile, the—as Dan pointed out, the prosecution is hiding evidence and not complying to court orders, and I also think, you know, part of the problem, and I do feel compassion for this accuser.  But I think someone along the line probably told her, you know what?  You need to keep a low profile.  And she‘s also inserting herself into the media spotlight by disregarding this advice and you know showing up...

ABRAMS:  Oh come on...

(CROSSTALK)

ABRAMS:  ... by trying to live her life.

(CROSSTALK)

ABRAMS:  Again, by trying to live her life.  Again, let‘s take my assumption....

RUSSELL:  ... you know what...

ABRAMS:  ... that they believe they‘re telling the truth...

RUSSELL:  ... she‘s free to live her life...

ABRAMS:  She‘s allowed to go out...

RUSSELL:  ... she has to understand that...

ABRAMS:  She‘s allowed to go out to bars.  Again, assuming they both believe...

EARLY:  She‘s allowed to go to dinner.

ABRAMS:  ... they‘re telling the truth.  She‘s allowed to go out to dinner.  She‘s allowed to go out to bars.  She‘s allowed to have a good time. 

EARLY:  But Dan...

(CROSSTALK)

ABRAMS:  Let me let Karen respond. 

EARLY:  I‘m sorry Dan.

RUSSELL:  ... unfortunately, it‘s going to affect her credibility...

ABRAMS:  Why?

RUSSELL:  ... in a court of law...

ABRAMS:  Why does that affect her credibility?

RUSSELL:  If she‘s telling people...

ABRAMS:  ... that many, many months after the fact...

RUSSELL:  ... she‘s out telling people...

ABRAMS:  ... that she‘s going on with her life...

RUSSELL:  ... I‘m going to sue Kobe Bryant for $40 million and...

(CROSSTALK)

ABRAMS:  She‘s going to sue...

RUSSELL:  ... she is...

ABRAMS:  ... when did we get into the lawsuit?  When was that filed? 

RUSSELL:  It hasn‘t been filed...

ABRAMS:  Oh, oh...

(CROSSTALK)

EARLY:  She‘s clairvoyant.

RUSSELL:  They...

EARLY:  Like the...

RUSSELL:  ... no, the idea—she does have two civil attorneys, and the idea that—I mean this has always been part of the defense...

EARLY:  She needs protection.  She needs protection against the—I know witnesses...

RUSSELL:  She needs protection...

EARLY:  ... I know witnesses in this case...

RUSSELL:  ... from herself.  How do we know that she wasn‘t kicked...

EARLY:  ... who have civil...

RUSSELL:  ... out of rehab...

EARLY:  ... witnesses in this case, Karen, who have civil lawyers...

(CROSSTALK)

EARLY:  ... just to keep the media off their backs, and it‘s even worse for this victim.  But I want...

RUSSELL:  You know what?  They don‘t want...

EARLY:  Go ahead.

RUSSELL:  ... this victim to answer—this alleged victim to answer any questions.  You know, if Mark Hurlbert had his way, we‘d have no—she wouldn‘t have to explain why someone else‘s pubic hair or someone else‘s semen is on her body.  She wouldn‘t have to explain everything.  They‘d have to take her at her word, Kobe Bryant did it, so therefore lock her up...

EARLY:  Dan...

RUSSELL:  ... they don‘t want the defense...

EARLY:  ... one more comment Dan...

RUSSELL:  ... credible defense.  He doesn‘t want to turn over the evidence.  What is he afraid of? 

ABRAMS:  Go ahead Norm.

RUSSELL:  I think he‘s afraid of his self-destructing accuser. 

EARLY:  Dan—thank you Dan.  Let me just say this.  This motion contains more propaganda and more information that the defense wants the public to believe.  But one thing it does not do, and Dan, I think you might have even fallen into that yourself.  Because this does not say they want an early—a speedy trial.  What it says is, wherefore Kobe...

RUSSELL:  It would be malpractice for them to move forward without the evidence that the prosecutor...

EARLY:  Can I speak please?

RUSSELL:  ... refuses to turn over. 

ABRAMS:  Let him—go ahead Norm.  Finish...

EARLY:  ... wherefore Kobe Bryant requests that this court accept his not guilty plea and set a trial date consistent with the fifth judicial district‘s policy and this court‘s schedule, which basically means continue doing what you‘re doing because the fifth judicial...

ABRAMS:  Yes...

EARLY:  ... policy is to hear all these motions and then eventually set a trial date.  They have not asked for an early trial date. 

ABRAMS:  We shall see.  Norm Early, Karen Russell, thanks very much. 

EARLY:  Take care, Dan. 

ABRAMS:  Coming up, my “Closing Argument”—why a judge‘s decision not to accept a plea deal worked out between prosecutors and the wife of a top Enron executive is going to make everything worse, adding a new hurdle and effort to seek justice in connection with the Enron mess. 

Plus, “Your Rebuttal”.  A lot of you had tough words for the husband of Andrea Yates, you know the mother who drowned her children.  Once again, I defend Rusty Yates, coming up.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why a Houston judge is unnecessarily blowing a plea deal between prosecutors and the wife of a former Enron exec.  Lea Fastow, wife of former Enron finance chief Andrew Fastow, was ready to plead guilty to filing a false tax return.  She admitted failing to report $47,000 in income on her family‘s returns and was ready to serve time.  Five months in prison, five months home detention, a 10-month sentence, a term entirely consistent with the federal sentencing guidelines for this crime. 

In fact, a sentence almost identical to the national average term for tax offenders, even though that average includes people who have criminal records, which she doesn‘t have.  Prosecutors also pointed out that 60 percent of tax offenders either serve split sentences, meaning some at home and some in prison or just get probation.  This was a tough but fair sentence.  And yet, Judge David Hittner rejected the plea, refused to say why or exactly what the sentence would be.  He just seemed upset that the deal would restrict his ability to choose the sentence. 

Look, there are a lot of judges frustrated by the restrictive sentencing guidelines, and I‘m certain this judge also wants to make it seem like he‘s going to be tough on crime.  But by rejecting this deal, the judge is just jeopardizing future prosecutions where she was set to help, in exchange for the possibility of a few more months behind bars.  Now, let‘s make one thing clear. 

Lea Fastow did not play any role in the fall of Enron.  This is a personal tax fraud case and she‘s been assisting the government throughout the process.  She helped them cut a deal with her husband, where he admitted to falsely making Enron appear financially sound, while profiting himself.  That‘s a serious crime.  He will serve 10 years.  More importantly, his cooperation will now allow the government to prosecutor many of Enron‘s top dogs. 

Andrew Fastow‘s testimony already helped indict two former officials including ex CEO Jeffrey Skilling.  Without Andrew Fastow it would not have happened.  Now, Lea Fastow committed a crime, a crime she probably wouldn‘t have been prosecuted for if she hadn‘t been connected to Enron, but a crime nonetheless.  She should serve time and she would have.  Instead the government will now have to spend hundreds of thousands, if not millions, on a prosecution.  And for what?  The possibility that she‘ll be acquitted and serve no time, or possibly be convicted and have to serve some more months behind bars?  What a waste. 

Coming up, “Your Rebuttal”.  Many of you believe Russell Yates is partially responsible for his wife‘s murderous actions against their children.  You want to know why did we have him on the show.  I will defend Rusty, coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, “Your Rebuttal” on the Homeland Security Department‘s no-fly list and the ACLU lawsuit, which says it‘s unconstitutional. 

(COMMERCIAL BREAK)

ABRAMS:  All right, I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  Last night on the program Rusty Yates, husband of Andrea Yates, who is serving a life sentence for drowning her five children.  We talked to him about his reaction to the not guilty by reason of insanity verdict for another Texas mom, Deanna Laney, who stoned her kids to death. 

But rather than addressing our question, it seems some of you still hold Rusty accountable for Andrea‘s actions including Lee Reed.

“I was appalled that you had Mr. Yates on your show.  Yates definitely contributed to his wife‘s problems by isolating her from the help she needed.  He got off easy.”

Carol Capogna from Troy, Michigan.  “I could never understand why Rusty Yates was never charged with failure to protect.  As far as I was concerned he was equally if not more responsible for what happened to their five children.”

All right, Carol and Lee, look, I‘ve heard this allegation about Rusty since day one.  Despite the fact that he repeatedly took her to psychologists and psychiatrists, none of whom ever indicated that she might be a danger to her children.  The poor guy lost all of his children and now some of you also want him to go to prison?  Did you read Suzanne O‘Malley‘s book about the case?  She said she expected to blame Rusty, but after researching it and interviewing many of the principles, she agrees he did what he could and it was the mental health experts who failed.  I feel sorry for him, not angry at him.

From Nashville, Arkansas, Amy Bays is angry at both Yates and Laney.  “I am severely depressed and have a long history of it, yet I know the difference between hurting my children.  They don‘t deserve treatment or medication.  They deserve an eye for an eye.  The verdicts aren‘t fair to the children.  Forget about these women.  How quickly we forget the little lives taken at the hands of their mommies.”

Also last night, the ACLU filing a challenge to the Transportation Security Administration‘s no-fly list, saying it violates the Fourth and Fifth Amendments.  I said that while the current system has problems that the TSA must fix, the ACLU is going to oppose any effort to beef up security at our airports.

Yvonne Scolari does not agree with me.  “Several years ago my mother-in-law was in her early ‘80‘s before 9/11, Sacramento International began subjecting her to intensive searches every time she flew from there.  Due to the treatment she receives, she has just about given up flying.  Yes, the ACLU is correct on this one.  There should be some way for persons like my mother-on-law to be removed from this dangerous persons‘ list.”

Look, I agree and the TSA agrees.  But mark my words, even if the glitches are repaired, the ACLU will still oppose any system that stops anyone for further questioning who doesn‘t have an outstanding arrest warrant.

Steve Miller from State College, Pennsylvania.  “I believe that you missed the point of the ACLU lawsuit by turning it into a discussion of profiling Arab men.  All the parties of the suit are Americans and mostly non Muslims.”

You know Steve, my point is that the TSA agrees changes need to be made, but that doesn‘t mean that the new and improved system will also be unconstitutional as the ACLU will claim.

That‘s all the time we have.  Thanks for watching.  Chris Matthews “HARDBALL” up next.

END

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