updated 4/21/2004 9:53:05 AM ET 2004-04-21T13:53:05

Guest:  Judy Brown, Randy Brown, Paul Rothstein, Paul Pfingst, Jacalyn Barnett, Ashley Mosby, Nicholas Hentoff

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

DAN ABRAMS, HOST:  Hi, everyone.  It was five years ago today that two Colorado teenagers stormed into Columbine High School and killed or wounded 35 people before taking their own lives.  We ask—how much are their parents to blame?  What happened to all the lawsuits, including the ones against them? 

Plus ABC News said they had a major exclusive today about the Michael Jackson case.  Turns out almost all of it was not new or exclusive.  We reported about the details about a month ago.  But to ensure no one else reports another—quote—“exclusive” from that same report, we‘re going to tell you everything we have about what the alleged victim told a psychologist and what his brother said about what Michael Jackson allegedly did to the boy. 

And a gossip feud between two girlfriends fighting over the same boy escalates into a federal lawsuit and calls for a restraining order.  We‘ll talk to the girl who says she‘s been unfairly targeted and harassed by her school and her former friend‘s mother. 

But first, today marks five years since the worst school shooting in U.S. history -- 13 people killed at Columbine High School.  The images difficult to forget.  Students running in terror as Eric Harris and Dylan Klebold had just stalked the halls looking for targets.  The two bombs they planted in the cafeteria, timed for maximum death and destruction failed to go off.  So, using shotguns and a handgun they went from room to room shooting students cowering under tables begging for their lives. 

Five years later questions still remain about how it happened without someone stopping the plot or discovering it.  Before we talk about what the parents of the shooters knew and whether they should be culpable, remember this video released in February?  Harris and Klebold apparently role-playing, pretending to be hit men paid by school nerds to kill jocks.

(BEGIN VIDEO CLIP)

(SHOTS)

UNIDENTIFIED MALE:  If you ever touch him again I will freaking kill you.  I‘m going to pull out (EXPLETIVE DELETED) shotgun and blow your damn head off.  Do you understand, you little worthless piece of crap? 

UNIDENTIFIED MALE:  No, you (EXPLETIVE DELETED) piece of (EXPLETIVE DELETED).  Do not mess with that freaking kid.  If you do, I‘ll rip off your (EXPLETIVE DELETED) damn head and shove it so far off your (EXPLETIVE DELETED) you‘ll be coughing up dandruff for four freaking months.

(END VIDEO CLIP)

ABRAMS:  Again, they were there.  They were role-playing.  But you know many believe that what actually happened was similar to the story that they were playing out there.  Families of 17 of the victims had filed lawsuits, naming the parents of the shooters as defendants.  All but one of those lawsuits has been settled.  The court sealed the records, so we don‘t know if the parents of the shooters have had to pay damages or how much. 

But before we get to that issue, I‘m joined now by Randy and Judy Brown.  Their son Brooks was a student at Columbine.  He knew Eric Harris and Dylan Klebold.  The Browns also repeatedly warned authorities that Harris was dangerous and they were ignored.  And again and again every time they come on this program, I say they were the ones who were yelling and screaming, you‘ve got to stop this guy, Eric Harris, and nobody did anything. 

Good to see you guys again.  Thanks for coming back. 

JUDY BROWN, WARNED POLICE ABOUT GUNMEN:  Thank you, Dan. 

RANDY BROWN, WARNED POLICE ABOUT GUNMEN:  Thank you.

ABRAMS:  All right.  So, Judy, what do we know about the parents of Dylan Klebold and Eric Harris?  What have they been doing?  Have they been speaking publicly?  Have they been settling these lawsuits?  What do we know about that? 

J. BROWN:  Well, we know that the lawsuits have been settled, except for the Shawls (ph) lawsuit, which I believe now is held up in the 10th Circuit.  Their depositions that they gave in the lawsuit that was remaining, they are all ordered to be destroyed by the Magistrate Cohen (ph).  Salazar—Attorney General Salazar has stepped in and asked that not to happen, and he is trying to get that stopped. 

ABRAMS:  So we don‘t know anything, right?  I mean...

J. BROWN:  We don‘t know...

ABRAMS:  ... we don‘t know anything...

J. BROWN:  ... their medical records are being held up.  The basement tapes, their writings—Mr. Harris‘ journal he kept on his son, which we didn‘t even know about until Mr. Salazar did his investigation.  So all of these things are being withheld from the public. 

ABRAMS:  So, Randy, now you were on a commission that was involved in investigating some of this.  Am I to understand this correctly, that we really don‘t know even five years later what the parents of Eric Harris and Dylan Klebold really knew about their child‘s—children‘s activities? 

R. BROWN:  That‘s correct.  Mr. Salazar‘s task force on records is still in effect, so he‘s still pursuing that.  But as an example, the Harrises never actually made a statement to the police.  At least there is no record in the release documents, the 30-some thousand pages of a statement by the Harrises.  They talked to the district attorney and the sheriff‘s department and said they wanted immunity, and they wouldn‘t grant them immunity, so they refused to make a statement.

Subsequently, they were never questioned.  The Klebolds released—made two small statements to the police with some information in them.  But actually, the Klebolds are not the issue here.  The Harrises really are, because we believe they knew a lot. 

ABRAMS:  Well I was going to ask you about that.  Do we know why Wayne Harris, the father of Eric Harris, called 911 and said in effect that he is afraid that his son might be involved in the shooting at Columbine High School immediately after it happened?  Do we have any sense of why he thought his son might be involved? 

R. BROWN:  Well, a sense, yes, from the information we can glean from the reports from their friends and other people who made reports and made comments about Eric, and from the basement videos, which Judy and I saw at the police department, which are not currently released.  Those are still being hidden from the public. 

ABRAMS:  And what do those—you‘ve seen these videos.  What do these videos depict? 

R. BROWN:  Well, it just shows that Eric has weapons and has been building pipe bombs.  And in it he says that his father found a pipe bomb and he and his father went and detonated it in a field.  Along with some of his friends, corroborate that story, so that seems reasonable.  And then they also say that he gave him back—his father gave him back his pipe bomb-building kit...

ABRAMS:  Wow. 

R. BROWN:  All of this—yes, he gave him back the timer and the pipe bomb-building kit.  And along with other information and in the basement videos they go through Eric‘s room with pipe bombs and knives and weapons and shotgun shells and hidden sometimes behind a C.D. case or behind some C.D.s, but so easy to find.  And it‘s hard to believe that Mr. and Mrs.  Harris, when their son is in diversion, he‘s been arrested already, he‘s in counseling, didn‘t search their son‘s room. 

ABRAMS:  Now, Judy, what about the Klebolds?  I mean you were friends with the Klebold family.  And I remember, you know, your shock when this initially happened and you felt very bad for the Klebold family.  Do you still feel that way? 

J. BROWN:  I‘m very confused about the Klebold family.  And I can‘t talk about too much because the depositions are sealed and we‘ll be in trouble if we speak about it. 

ABRAMS:  (UNINTELLIGIBLE)

J. BROWN:  I still believe they didn‘t know very much.  I still believe they were taken by total surprise, although I have to admit that Mr. Klebold also called and said he thought his son might be involved.  So I think that we all have something to learn from these parents‘ depositions. 

ABRAMS:  Yes.

J. BROWN:  We are aware that Kathy Harris knew her son was suicidal.  She put that in the diversion program, that he was punching walls, not at home, at school, and that he had a temper, you know and different things were happening.  He was on Luvox .  So, they were very aware of many things that have been made public. 

ABRAMS:  Very quickly, 15 contacts, right, with the police that these two had before this happened?

J. BROWN:  Right...

R. BROWN:  Yes.

J. BROWN:  ... right and all seemed to dead-end and go nowhere and just be filed.

ABRAMS:  All right.  Randy, you know, if you guys just stick around for a minute in case we have a fact question about what‘s going on and otherwise, thank you—I‘ll thank you at the end, but thanks a lot for coming on. 

J. BROWN:  Thank you Dan.

R. BROWN:  Thank you Dan.

ABRAMS:  All right, but the question I want to talk about the panel with—should the parents of Harris and Klebold be held responsible?  Now my take is since the authorities had contact with these boys close to 15 times before the incident, the parents seem to have known that they had troubled kids, at the least.  And I‘ve been very disappointed that they have not shown more public remorse for their children‘s actions.  But I have to say that we still don‘t know enough, quite enough, I think, to be able to assess whether they should be held legally responsible. 

But, boy, if you listen to what Randy Brown is saying there, it sure sounds like the Harrises could have a tough time with all these lawsuits.  Let‘s ask the legal panel—former San Diego D.A. and MSNBC analyst Paul Pfingst, Georgetown University Law Professor Paul Rothstein and trial attorney Jacalyn Barnett.

All right.  Professor Rothstein, what do you make of it?  I mean should these parents be held liable?  Do you think that they had to pay in these secret settlements? 

PAUL ROTHSTEIN, PROF., GEORGETOWN UNIV. LAW SCHOOL:  Well, parents aren‘t liable for the torts of their kids the way a boss is liable for an employee‘s torts and scope of employment.  The parents have to show some negligence of their own.  And more specifically, they have to have some pretty specific particular warning that their kids are dangerous.  Now, we really don‘t know enough to know if they did. 

On the face of what‘s being said here today, maybe.  But the law is very reluctant to hold parents reliable for what the kids do.  And the older the kid gets into the high school age, the law is more and more reluctant.  There are two problems finding negligence on the part of the parents, that they knew and should have done something, and then proximate cause.  The real wrong doer, the real cause is the kids.  So, there‘s an uphill battle...

ABRAMS:  Paul...

(CROSSTALK)

ABRAMS:  ... what about the point that Randy Brown makes about the pipe bomb kit being returned?  I mean let‘s assume for a moment that is a fact.  Again, you know we don‘t know all the facts.  But Randy Brown is saying basically that the information that Eric Harris‘ family returned some sort of pipe—if that were true, would that be enough to hold the Harrises liable? 

ROTHSTEIN:  Probably not alone...

ABRAMS:  Let me ask Paul Pfingst.  Let me get Paul Pfingst in. 

ROTHSTEIN:  Oh, sorry. 

ABRAMS:  Yes.

PAUL PFINGST, FMR. SAN DIEGO DISTRICT ATTORNEY:   Yes, Dan, by itself, that would not be enough, because the parents here are caught in a very difficult situation.  Because it‘s not like if you find out that your child is improperly driving an automobile, because then you can take the automobile away from the child. 

ABRAMS:  Why can‘t you take the pipe bomb kit away? 

PFINGST:  You can take the pipe bomb kit away, but you still have to make the child go to school.  And in this case they couldn‘t take the child out of the school.  A child has to go to school.  Now, in this case it‘s all fact-driven. 

ABRAMS:  But what...

(CROSSTALK)

ABRAMS:  I don‘t understand...

PFINGST:  ... the facts you can‘t make a decision.

ABRAMS:  ... what does that have to do with the fact that kids have to go to school?  I don‘t—I mean they don‘t have to go to school with guns and bombs and...

PFINGST:  No, of course not, but if you are concerned that the kid—you had some indication that the kids were mad at other students and were angry, then you just can‘t say to the kids well, then, don‘t go to school.  Because the state requires the children to go to school and be educated.  If you‘re afraid your children are misusing the car, you just take the car away and that‘s how you protect yourself. 

ABRAMS:  But...

PFINGST:  So, here it‘s a complex series of legal obligations.  And once the lawyers are in it, Dan, the parents are told by the lawyers to keep quiet, don‘t talk, don‘t make public statements, don‘t say anything because it will compromise your legal position.  That may be why they haven‘t come forward to explain what happened. 

ABRAMS:  Yes, Jacalyn Barnett, what do you make of what we‘re hearing? 

JACALYN BARNETT, TRIAL ATTORNEY:  I think the problem is very common sense.  If you know that a child is troubled, I don‘t think the obligation is to identify who‘s going to be their future victim.  But you don‘t give a loaded gun or a pipe bomb to somebody that has a proclivity to violence...

ABRAMS:  What about...

BARNETT:  ... you have an obligation.

ABRAMS:  What about not—that‘s what I was going to ask you.  What about not giving it, but what about you know not investigating enough?  Do you think that that is enough to hold parents liable?

BARNETT:  I think you have to have a pattern.  It‘s not one incident.  But it appears that there‘s a pattern here of clues that are very clearly made in hindsight.  But if some other people, such as the Browns, saw and complained about these things, how could the people that live with the child not see these things?  That to me is incomprehensible.

ABRAMS:  Professor.

ROTHSTEIN:  Well, it‘s a little like the 9/11 commission trying to say that somebody should have known beforehand that 9/11 was going to happen.  Yes, in hindsight you see all the handwriting on the wall.  There are things that we should have recognized.  But it‘s like the sinking of the Titanic.  The captain was alerted to a lot of things he should have realized, that there was an iceberg in the way, but...

ABRAMS:  But wait a sec.  The captain of the Titanic would have been held legally responsible, Paul. 

ROTHSTEIN:  Well I don‘t know...

ABRAMS: Come on.  Come on.  Of course he would have been.

ROTHSTEIN:  Maybe that‘s—maybe I shouldn‘t have stated that case...

(LAUGHTER)

ABRAMS:  All right.

ROTHSTEIN:  But the 9/11 commission, that we should have known of 9/11 coming.  You know, a lot of kids make pipe bombs and stuff and do a lot of mischief and make movies that look pretty violent like that, but you know they were troubled kids, but whether you could think they were going to shoot up a school...

ABRAMS:  Yes.

ROTHSTEIN:  ... full of people is another...

ABRAMS:  I‘ve got to tell you, the fact that all this remains under seal is very disturbing to me.  The fact that the community there in Littleton, Colorado can‘t get some answers to some very basic questions about what the parents knew I think is a disturbing development.  But I don‘t know if that‘s going to change. 

Randy and Judy, I assume, and I can assure you will continue to fight to make more things public, as they have been for the last five years.  Judy and Randy Brown, thanks, and Paul and Jacalyn and Professor are going to stick with us. 

Iraqi leaders announce they have set up a tribunal of judges and prosecutors to try Saddam Hussein.  They‘ve got to be trained in international law, war crimes, and crimes against humanity.  It seems some of the country is in chaos.  Can they really pull off a huge international trial, even with a budget of $75 million? 

Plus, details about the Michael Jackson case.  His alleged victim‘s account, including more on the use of alcohol and what the accusers 9-year-old brother said to investigators, coming up. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Iraqi leaders set up a tribunal of judges and prosecutors that will try Saddam Hussein.  But with jails and police under attack, can they even begin to consider putting on a major trial? 

(COMMERCIAL BREAK)

ABRAMS:  Today Iraqi leaders announced they have set up a tribunal to put Saddam Hussein on trial.  The tribunal will be headed by Salem Chalabi, a U.S. educated lawyer and nephew of the head of the Iraqi National Congress.  He‘s appointed seven judges, four prosecutors.  They have a budget of $75 million for 2004 and 2005.  The prosecutors will determine charges against Saddam and some of his former officials, and a spokesperson says that the panel will also try any members of Saddam‘s regime who were charged. 

The judges and prosecutors will undergo training, including international law, war crimes, crimes against humanity.  My take, it‘s going to be very difficult to get any sort of tribunal going in the current environment with jails and police under attack.  I hope it can work, but I fear it‘s going to be more difficult than they may think. 

Let‘s bring back Georgetown University Law Professor Paul Rothstein.  All right, Professor, what is the most—if you were advising the setup there in Iraq with this new tribunal, what would be the most important piece of advice you would give them? 

ROTHSTEIN:  Keep the Americans out of it 100 percent.  This should be an entire Iraqi affair.  I think the American administration is going to be tempted to kind of want to get into it.  They may even use this as an excuse to pour in a lot of troops and effort at security on the guys—it‘s security surrounding the trial and you know keeping order in Baghdad, if that‘s where the trial is going to be.  But I think it would be a big mistake.  This should be an Iraqi show.  It should be Iraqi judges.  It‘s the Iraqi people that have the stake in it. 

ABRAMS:  What about the tribunal‘s general director, Salem Chalabi?  Let me read you a little bit of what we know about him.  He‘s a U.S.  educated lawyer.  He‘s the nephew of Ahmed Chalabi, who‘s a member of the new Iraqi interim government.  He‘s a favorite of many of the Pentagon hawks who pushed for Saddam Hussein‘s overthrow, set up a law firm in Baghdad.  His firm has apparently, according to some reports, hinted at offering clients the advantage of its close contacts. 

Is there going to be, you know, any people yelling and screaming, you know, he appointed the judges.  This isn‘t fair.  Or is the bottom line that, you know, enough people there you think want to see Saddam tried, that that‘s not going to be that big a deal? 

ROTHSTEIN:  I think you‘re right that there‘s an issue there, and Chalabi may not be the best person to do it.  There‘s been a lot of foment about Chalabi and whether he‘s accepted by other Iraqis.  He may be perceived as too American.  And I think that is a big danger, and I think it would be much better if it were not all under his supervision. 

ABRAMS:  And security has got to be a huge issue.  I mean, you know, think about the fact that if you know Saddam Hussein is going to be in a particular place every day for a long period of time, that‘s got to be a major security concern. 

ROTHSTEIN:  Absolutely.  And I think the American administration is going to see this as an opportunity—use this as an excuse to really rule with an iron-fisted hand, say if it takes place in Baghdad or somewhere, it may be the excuse they‘re looking for to really crack down.  I think that would be a mistake.  That would begin to make it a symbol of American oppression. 

ABRAMS:  I think they‘re going to have to set up basically a perimeter there of many, many, many miles where no one can come anywhere near it unless they‘re authorized to be in that courthouse.  We‘ll see how that goes.  We‘ll see how they end up doing it.  Remember, even the Michael Jackson grand jury goes running around from place to place.  Who knows?  Maybe they‘ll do that in Saddam‘s trial as well.  Paul stay with us.

ROTHSTEIN:  OK.

ABRAMS:  Coming up, a gossip feud between two girlfriends spirals out of control.  Now there‘s a federal lawsuit and a request for a restraining order.  Why did something that should be happened by the school principal end up in federal court? 

Plus, we‘ll take another look at what Michael Jackson‘s accuser allegedly told a psychologist that Jackson did to him and what his little brother said.  There are details we haven‘t reported until now.      

(COMMERCIAL BREAK)

(NEWS BREAK)

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

ABRAMS:  It‘s as innocent as high school gossip, quickly turned into two 16-year-old friends becoming bitter enemies after a dispute over a boy.  Sounds like typical high school stuff.  But this has become a federal case with one of the girls filing a lawsuit against her former friend in their Arizona high school.

Mountain Pointe High School sophomore Ashley Mosby claims that her school is playing favorites, suspending her for gossiping about fellow student Eleanor Powers while she says Powers freely spread rumors about her.  After the principal heard about their feud, both girls apparently signed a—quote—“non violence agreement” where they promised to end the harassment.  But school officials say Mosby did not abide by it and she has been suspended twice. 

Well now she is suing, claiming the school is punishing her unfairly while being lenient on Eleanor Powers.  The lawsuit says because Powers is a star soccer player and her mother is an influential fundraiser for the school.  The lawsuit even goes so far as accusing the assistant principal of having—quote—“instructed her staff to act as a secret police force by eavesdropping on the plaintiff‘s private conversations—to ensure that Eleanor Powers is not a subject of discussion.  Has also instructed Ashley to not even look at Eleanor Powers while Eleanor Powers and her friends remain free to taunt and demean Ashley while making false reports that they know will not be challenged.”

Is this the beginning of a sue the principal epidemic?  Let‘s ask Ashley Mosby and her attorney Nicholas Hentoff.  All right, thank you both very much for coming on the program.

UNIDENTIFIED MALE:  Thank you for having us Dan.

ABRAMS:  Mr. Hentoff, before I get to you on some of the legal issues, Ashley, let me just ask you about what happened here, about the facts here.  I mean the allegation that you‘re making is effectively that you‘re being treated unfairly.  The school and the principal say look, they told you reached this agreement about no more taunting, no more violence, whatever, and they say that you broke the agreement. What do you make of that?

ASHLEY MOSBY, SUING FORMER FRIEND OVER GOSSIP:  I did not break the agreement at all.  They said Eleanor said she had witnesses saying that I threatened her and I called her names and harassed her, which is not the case at all.  She would say things to me in the hallway or about me and I didn‘t go to the office and write it down because I figure it was enough of a problem.  Everything I said to her or about her would be reported and I would be punished for it.

ABRAMS:  How did you—was it your idea or your parent‘s idea to end up saying look, we‘ve got to court on this.

MOSBY:  It was my parent‘s idea.

ABRAMS:  All right.  And what do you think—I mean you and this girl, Eleanor, I assume don‘t talk anymore and you‘re not...

MOSBY:  No...

ABRAMS:  ... right, all right...

MOSBY:  ... we do not talk...

ABRAMS:  And this was a fight over a boy initially?  You both...

MOSBY:  No, it was not about a boy at all. 

ABRAMS:  It was never, because all the reports I read were it initially started over some boy you both were interested in.

MOSBY:  No, that is not the case at all.  She had a boyfriend.  They broke up and she became very rude to everyone.  One day we got in a confrontation and this is how it all started.  She just decided to be really rude to me and I wouldn‘t take it.  I didn‘t want her to be mean to me for no reason.  So I just ignored her and that‘s how the fight started.

ABRAMS:  All right, Mr. Hentoff, let me discuss some of the legal issues.  Obviously, look, I don‘t know the facts of who said what to whom.  I, you know, we—the other side has a different story of how this went down.  But what I‘m concerned about is the danger of once you start suing school principals over decisions that they make, as opposed to saying, look, we‘re going to fight this with the school board, you‘ll go through the appeals process, we‘re going to do everything we can.  Instead, I think that if your lawsuit succeeds, forget about the merits of it.  I think it‘s going to set a very dangerous precedent.  Your reaction? 

NICHOLAS HENTOFF, ATTORNEY FOR ASHLEY MOSBY:  Actually, I think it‘s quite the opposite.  I think administrators have to understand that when you have normal disputes between teenagers, that there has to be a way to resolve those disputes short of taking a side and expelling one of the students.  And what this sends is a message to administrators that there are other alternatives aside from expulsion.  And frankly, her parents had no other choice but to file a lawsuit. 

ABRAMS:  But that‘s going to be every parent‘s take, I mean right?  I mean every time a student is expelled or suspended the parents—I am not going to say every time—much of the time the parents are furious.  They say it‘s unfair, it was wrong.  The principal didn‘t take this or that into consideration.  And again, it seems to me that this is just opening up a dangerous door. 

HENTOFF:  Well, in this particular case we had a situation where we knew that the intermediary discipline was really a pretext and their goal was to expel Ashley from the school, and action had to be taken.  I have a copy of a letter that we recently obtained from the other girl‘s mother to the principal on April 12, in which she told her—asked the principal to expel Ashley.  And two days later Ashley has been effectively suspended for the semester, not just the 10 days. 

ABRAMS:  All right, well, I should say that we tried to call the Powers‘ family.  We did not get a return phone call from them about this story.  I‘m going to ask you both to stick around for a moment, because I want to bring in my legal panel in a minute to talk about some of the legal issues that this presents and find out if they agree with me, that I think it opens up a dangerous door. 

Plus, we‘ll have additional exclusive details to add to our report from last month about the Michael Jackson case.  What the accuser and his brother told a psychologist about what they say Jackson did, coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  There‘s still a lot of gossiping going on and a lot of nitpicking behind people‘s backs. 

UNIDENTIFIED FEMALE:  (UNINTELLIGIBLE) I‘ve seen citizens being torn up about it.

UNIDENTIFIED FEMALE:  It‘s absolutely horrible.  Girls are probably the most mean in high school. 

(END VIDEO CLIP)

ABRAMS:  We‘re talking about a spat between two high school girls.  It has now landed in federal court with one girl saying she got unfairly suspended.  I‘ve already said that my take is that this is the kind of case that should be dealt with outside of court.  If we start allowing principals‘ decisions to be questioned in every court every time, every parent whose kid is suspended will file a lawsuit. 

Now let‘s bring in our legal team—former San Diego D.A. and MSNBC analyst Paul Pfingst, Georgetown University Law Professor Paul Rothstein, trial attorney Jacalyn Barnett, and still with us is Nicholas Hentoff, the attorney who filed the lawsuit. 

All right, Professor Rothstein, what do you make of this?  I mean, let‘s assume the facts as Mr. Hentoff and Ashley have laid out for us.  They believe that they were treated unfairly.  They believe that there‘s a double standard in the school, that because the mother was a booster and the girl‘s a star athlete, that as a result that the other girl is being treated unfairly.  Assuming all of those facts to be true for a moment, worthy of a federal lawsuit? 

ROTHSTEIN:  Well, I‘m with them to a limited extent.  I agree with you, Dan, we shouldn‘t allow these suits on a widespread basis.  But I think school administrators should be forced to provide at least a modicum of due process.  They apparently did not inquire into this girl‘s side of the story.  They listened only to the other side of the story.  There was no due process.  I don‘t know who‘s going to win when they do have due process.  But it seems to me school administrators ought not to treat the kids like dirt, because these kids are going to grow up to be American citizens, and we should be...

ABRAMS:  Right.

ROTHSTEIN:  ... a good example that there‘s due protest in America. 

ABRAMS:  Right.  But that‘s the sort of thing a school board says to someone, is we‘ve got to set good examples.  But Paul Pfingst, what about filing this as a federal lawsuit? 

PFINGST:  What is the federally protected right that‘s in this case?  The hardest job in America is probably being a high school principal.  They have to make the types of calls involving youth gangs in the schools, all sorts of things.  And I fail to see what the federally protected right is in this case that would get these students into a federal court.  This strikes me as just being overkill where there‘s a process in most schools for an appeal.  You can go to the superintendent, you can go to the school board and these cases ought to be decided, in my judgment, at the school board level, at the superintendent level, not in the federal courts. 

ABRAMS:  Let me let Mr. Hentoff respond to that.

HENTOFF:  Well, unfortunately, the United States Supreme Court has disagreed with the former prosecutor and said that there is a protected right in the public education.  They‘ve also said there‘s a liberty interest in your good name and reputation in not being expelled from school.  And Professor Rothstein is absolutely right, that where people—where children first learn how to be good citizens is in school.  And it‘s up to the school to show them a good example when it comes to due process. 

In this case Ashley did not—wasn‘t accused of making any kind of threats.  What she was accused of was having a private conversation where Eleanor Powers‘ name was merely mentioned.  And she was suspended for 10 days for that, because a teacher overheard her mention the name of Eleanor Powers to a friend.  These harassment policies are all over the country now, and they simply go too far, and they have to be challenged. 

ABRAMS:  Jacalyn Barnett—I mean, again, I‘m not—again I don‘t know the facts well enough to know exactly what happened.  I know that in schools sometimes—I remember you know I got suspended once for a day in school because a teacher claimed that I had said something to her.  We got in a big argument about whether I had actually said that or whether I had said it in the context of something else.  But the bottom line is that I think there‘s a great danger here—I‘m not disputing what Mr. Hentoff is talking about, about basic rights of students.  I‘m saying that once we start going down the road of saying that every student can challenge a principal‘s decision in federal court, we are in big trouble. 

BARNETT:  I think that there‘s too many lawsuits as the answer.  And to me what‘s missing, and having just talked about Columbine, I don‘t understand when these children were supposedly signing these voluntary agreements, that‘s the time when the school should have brought both of their parents in.  Because then the parents would have been involved and...

ABRAMS:  I think they did...

BARNETT:  ... aware of dealing with it. 

ABRAMS:  I think the parents were brought into this.  Isn‘t that right Mr. Hentoff? 

HENTOFF:  No, no, actually, the parents were not brought in. 

ABRAMS:  Never? 

HENTOFF:  No.  The—Ashley Mosby‘s parents were never given any kind of meaningful consultation because you have to understand the decision to expel Ashley had already been made.  This is all pretext. 

BARNETT:  But there was that agreement that she entered into. 

HENTOFF:  Well, no, no, no...

BARNETT:  Didn‘t her parents know about it? 

HENTOFF:  No, they knew about it after the fact, and Ashley...

(CROSSTALK)

HENTOFF:  ... Ashley was told that she couldn‘t leave the vice principal‘s office until she signed it.  But what you‘re talking about is an agreement not to—quote—unquote—“harass somebody.”  The 3rd Circuit has struck down a similar harassment policy in a school by saying that it‘s too overbroad, that it‘s too vague. 

ABRAMS:  Yes.

HENTOFF:  And that‘s what we‘re going to try and do with this harassment policy.

ABRAMS:  Well, I think you‘ve got an uphill battle, Mr. Hentoff, but we shall see.  And I will allow you to prove me wrong and invite you back when you do.  And Ashley, thanks a lot for taking the time to come on the program and listening to us bat around some of these legal concepts.  Appreciate it.

And our legal panel is sticking around.  So coming up, it was billed

as an ABC News exclusive new developments in the Michael Jackson case.  It

turns out almost all of it was not new or exclusive.  We reported most of

the details about a month ago.  But to ensure no one else reports another -

·         quote—“exclusive” from that same report, we‘re going to tell you everything about what the alleged victim and his brother told a psychologist about what he says Michael Jackson did to him.

Plus, a lot of reaction to last night‘s story on the Coors lawsuit—a mother is suing the brewing company after her son died while drinking and driving.  She says Coors was her son‘s favorite beer and the company should be held responsible for its advertisements.  Well, college students have spoken.  I said the case is ridiculous—their e-mails coming up. 

(COMMERCIAL BREAK)

ABRAMS:  Remember about a month ago on this program and on the “Today” Show, March 12, to be exact, NBC‘s Mike Taibbi reported about police documents detailing interviews a psychologist had with Michael Jackson‘s accuser and his 9-year-old brother.  Mike reported the psychologist, Stan Katz, said Jackson‘s accuser claims he—quote—“drank alcohol every night and got buzzed, whiskey, vodka and Bacardi.”  And that when his head hurt from the drinking—quote—“Michael said keep drinking, it will make it feel better.”  He said Michael—quote—“showed him pictures of naked women on the computer” and that he once—quote—“saw Michael just standing there naked for a moment.” 

He says Michael told him that—quote—“he had to masturbate or he‘d go crazy.”  Taibbi also reported that Katz interviewed the accuser‘s younger brother, who said on a flight back from Miami he saw Jackson—quote—“licking the accuser‘s head” as the boy slept against Michael‘s chest, that Michael provided—quote—“wine, vodka and tequila on numerous occasions,” and that on one of Jackson‘s security—that one of Jackson‘s security guards—quote—“told us he‘d kill us and our parents if we told about the alcohol.”  Well, now over a month later ABC News apparently got their hands on what seems to be the same report.  They billed it as an exclusive this morning. 

The only detail they included that Taibbi had left out of his report was that Michael Jackson showed a female mannequin to the accuser and his brother.  We asked Mike‘s producer to go through his notes to see if there was anything else in the report that was not on the air in the hope no one else would bill the content of this report as another exclusive, and we also think it‘s important to get as much out there as possible. 

Additional tidbits, the brother of the accuser claims he saw Michael Jackson touching his brother in an inappropriate sexual manner on several occasions, once on a golf cart and also in a bedroom setting. 

My take on this is it‘s unfortunate that ABC didn‘t watch Taibbi‘s “Today” Show report on this program before billing it as an exclusive, but let‘s get to the significant details of this, again, with my legal panel.  Paul Pfingst, you know look, all these details, the more details that come out, the more specific we get, the more it seems to help the prosecution.  And yet, there‘s still the fact that the Santa Barbara authorities did their own investigation only months earlier and found that nothing was there, that none of this they believe to be true.  I mean isn‘t there something disturbing about that stark change in the story? 

PFINGST:  At therein lies the case, Dan, you‘re exactly right.  Why did the victims and the victim‘s family change from saying nothing happened to something very bad happened? 

ABRAMS:  Not just something bad, but something so specific.  I mean...

PFINGST:  Yes.

ABRAMS:  ... again, and that‘s why the specifics I think become so important, because there‘s so many very specific allegations.  It was here.  It was there.  I remember, you know, all the details surrounding what was there, et cetera. 

PFINGST:  It is common in child sexual abuse cases, and also domestic violence cases, for that matter, for there to be a lot of denial about these types of events, because people don‘t want them known, and also, because there‘s a relationship between the molester or the batterer and the person who‘s been victimized.  But in this case, seeing there were prior investigations by other government officials, that‘s going to give the Santa Barbara D.A. a tougher hill to climb.  It‘s going to be a tough case because of the prior denials.  Why did they change their mind?  That‘s what the case will depend upon. 

ABRAMS:  And Jacalyn, won‘t the prosecutor—won‘t the defense end up cross-examining on each and every detail?  I mean the more details there are, the more the defense can use those specifics to attack the credibility of the accuser and his family. 

BARNETT:  Exactly.  And if you get enough inconsistent statements, as we all know, it only takes one jury—juror to have the verdict go the other way.  So I think that if there are a series of statements and a 9-year-old to report it in the exact same manner, I think that‘s going to make this a very significant weakness in the case. 

ABRAMS:  Paul, what do you make—Paul Rothstein, what do you make of this? 

ROTHSTEIN:  I think from my study of these cases that children who have been molested often don‘t tell the story.  The parents have to think twice about whether they want to get their kid launched into the middle of big publicity like we are having now.  There are many reasons why they say nothing happened, and then ultimately say something did happen, when it really did happen.  Now, all of those revelations on the—of the psychiatrist arguably that could be hearsay.  But I think a case could be made out that it‘s statements for purposes of medical diagnosis and treatment, which is an exception to the hearsay rule, so I think those might come in...

ABRAMS:  Yes.  Paul...

(CROSSTALK)

ROTHSTEIN:  Yes.

ABRAMS:  Let me ask Paul Pfingst.  Paul, do you agree with that?  That this will—I‘ve got to believe that that‘s going to get in.  Do you?

PFINGST:  It will come in.  I mean the circumstances under which the child went from saying nothing happened to something happened will get in to explain the child‘s statements today, and to explain away the denials before.  So that will be a part of the case. 

ABRAMS:  All right, Paul, I—Professor, I apologize for interrupting you, sorry. 

ROTHSTEIN:  Well that‘s all right.  I think there is a big question of credibility whenever a famous and rich man is accused of things like this.  There‘s a temptation for people to lie and say there was molestation so that they get money and fame...

ABRAMS:  But I‘m most disturbed about the fact that the Santa Barbara Sheriff‘s Department did its own official—forget about the L.A. Child Services investigation finding nothing.  The Santa Barbara County Sheriff‘s Department began its own official investigation, and according to Mike Taibbi, found nothing. 

ROTHSTEIN:  Well, they don‘t—just don‘t believe this family.  This family is sort of, in many people‘s view, has some motivation to want to make money and to launch themselves into the public.  So apparently it‘s just a credibility call, a judgment call, as to who they believe. 

ABRAMS:  Yes, but Jacalyn look, I know that in these cases that kids are initially reluctant to come forward.  What makes me uncomfortable is—and again, it‘s not almost the admissibility of what the parents have to say.  But it makes the whole story seem difficult to accept, because not only was the child unwilling to say that anything happened, but also, the mother as well. 

BARNETT:  Well, the problem you have to look at is at each timeframe why was there the silence and why was there an inconsistent statement.  But the problem with a 9-year-old being cross-examined is that this child could become overwhelmed.  I think in many custody cases I see, you know, truth comes out later on and people suddenly see the clues.  But when you‘re doing a criminal case, if you have a young child being cross-examined, his inability to be consistent is...

ABRAMS:  Yes.

BARNETT:  ... very vulnerable to having a jury verdict that goes in favor of the defense. 

ABRAMS:  We shall see.  Paul Pfingst, Paul Rothstein and Jacalyn Barnett, thanks a lot for spending the hour with us. 

Coming up, the Ashcroft defense.  Why some defense attorneys are now trying to blame the attorney general for the fact that their clients, drug dealers, gang members, et cetera, were arrested.  It‘s a pathetic defense that unfortunately is being fueled by some of Attorney General Ashcroft‘s actions.  It‘s my “Closing Argument”, coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a lot of angry e-mails on last night‘s segment about the mother suing Coors because her 19-year-old son died while drinking and driving, yes.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—the Ashcroft defense.  In courtrooms around America, attorneys for drug dealers, mobsters, gang members, white-collar criminals, even Martha Stewart suggesting that Attorney General John Ashcroft is behind some insidious conspiracy to imprison them.  Particularly in more liberal areas like New York, Los Angeles, San Francisco, federal prosecutors are telling me that they have come to expect that the defense will try to invoke the name of the controversial attorney general in the hope that somehow that might prejudice the jurors against the government, make them believe that somehow the big, bad attorney general is behind each and every prosecution and that overly aggressive prosecutors are just puppets, regularly charging the wrong people. 

That‘s nonsense.  Yes, he‘s the boss.  But these defense attorneys are just trying to avoid dealing with the evidence by making political arguments.  Instead, I assure you the local federal prosecutors are making their own charging decisions without consulting regularly with the attorney general.  But with that said, it doesn‘t help the cause that the attorney general has been meddling in some decisions generally reserved for the local prosecutors, like whether to enter into plea deals or whether to seek the death penalty. 

As I‘ve said before, Mr. Ashcroft I think is unnecessarily restricting the discretion of the prosecutors who know these cases best and now it turns out helping to provide a puff of smoke and mirror for defense attorneys trying to avoid the facts.  The attorney general isn‘t to blame for some defense attorneys‘ efforts at distraction, but no question he‘s providing them with ammunition. 

All right, I‘ve had my say.  It‘s time for “Your Rebuttal”.  Coors Brewing Company being sued by the family of 19-year-old Ryan Pisco who had been drinking beer at party and drove his girlfriend‘s car into a light pole at 90 miles an hour and died.  He allegedly had been drinking Coors beer and the family says since Coors promotes, they say, underage drinking, Coors should be held responsible for Ryan‘s death.  I thought the lawsuit didn‘t make any sense.  Most of you agreed with me.

Susan writes, “This lawsuit makes my blood boil.  I am a recovering alcoholic who‘s had a DWI.  My actions were my fault, not the winemakers, not Smirnoff.  I am truly sorry for her loss, but suing Coors is directing her anger in the wrong direction.”

M. Dixon from Washington, D.C.  “I feel sorry for parents that can‘t accept their responsibility for the role they failed to play in their child‘s misdeed.  The sad fact is that this 19-year-old did the wrong thing when he decided to drink and then drive.”

Ed from Baltimore writes, “It is interesting that the very first few words out of the lawyer‘s mouth after you stated your position were describing how much money that brewing industries make.  The brewing companies make billions of dollars, so they should be sued?”

From Beverly Hills, California, Elizabeth Cornell.  “The grieving mother of this unfortunate 19-year-old is being victimized a second time by the horrific conduct of this egregious misguided attorney.  I have no doubt this case will be thrown out of court in record time.”

Julie Gehrke from East Lansing, Michigan has another take.  “I am a college student and an avid drinker.  There is no advertisement that sways what I drink.  We students drink to get drunk and have a good time.  Props to Coors for making a good beer.”

But there were a few who agreed with the family that Coors should be held responsible including Kerry Joyce from Massachusetts.  “If I was on that jury I would make Coors pay to set an example alone.  These companies must be held responsible.”

Geraldine from Lynchburg, Virginia—“I think it is time for the beer companies to fall under the same rules as cigarette companies.  And do not blame parents for the conduct of their children while the child is away from home.”

Also last night, the mother of Kobe Bryant‘s accuser speaking out at an event in Denver observing National Crime Victims‘ Rights Week.  I said it‘s about time the family went public considering everyone else has had a say.

Linda writes, “I think if they are standing behind keeping her identity and name out of the paper, her parents should follow suit.  I view this as pandering to the potential jurors.”

From New Orleans attorney Jeffrey T. Agular—“If she indeed is a subpoenaed witness, then she is subject to the gag order.  More importantly, she specifically addressed the ultimate fact that in our system of justice is one for the jury to determine, that her daughter is a victim of rape.  If that is not a fact of the case, I don‘t know what is.”

All right.  Yes, she‘s subject to the gag order.  But because she spoke for one minute at a ceremony, talking generally about victims‘ rights and specifically about her daughter‘s courage does not even come close to violating the gag order and to suggest that that‘s an effort to pollute the jury pool?  Come on. 

Ken Crouch writes, “I agree there is nothing wrong with the mom of Kobe‘s accuser speaking out in support of her daughter.  I hope you wouldn‘t be offended or say it‘s unfair if Kobe‘s wife or his parents also speak out in support of his innocence.”

No.  I have no problem with Kobe‘s wife or parents saying they support him and believe in his innocence without get into the details and facts of the case. 

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

Next up, “HARDBALL” with Chris Matthews.  Senator John McCain is talking about Bob Woodward‘s book. 

Thanks for watching.

END   

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