updated 4/22/2004 11:22:08 AM ET 2004-04-22T15:22:08

Guests:  Craig Silverman, Jayne Weintraub, Dean Johnson, John Burris, Jim Thomas, Joe Tacopina

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

DAN ABRAMS, HOST:  Hi, everyone.  Moments ago the judge in the Kobe Bryant case rules the accuser‘s medical records are off limits.  That is tough news for the defense, which had said the records could undermine her credibility and show why she may have falsely accused Bryant of rape. 

And also, at any moment a grand jury could formally indict Michael Jackson on molestation charges.  We‘re going to get a live report from Santa Barbara.  Plus some details you haven‘t heard about what a psychologist says the accuser and his brother told him about the alleged abuse. 

And a Florida couple fighting to avoid testifying against their own daughter in her hit-and-run trial.  Most states don‘t give parents immunity from having to take the stand, even though most husbands and wives do have it.  Will they go to prison?  We‘ll talk about it. 

But first, a major ruling in the Kobe Bryant case.  A win for the prosecution.  The judge ruling the alleged victim‘s medical and mental health records will remain private will not be used against her at trial.  The defense had hoped to bring in her past medical history.  In part, they said, to show the purported suicide attempts for an effort to get attention from her then boyfriend.  They also wanted her mental health records admitted because a former boyfriend had said she was bipolar. 

One symptom, according to the defense, can be increased sexual drive.  The defense says that she may have been in this manic state at the time of the incident and consented to sex with Bryant.  In a series of closed-door hearings there was testimony from seven witnesses, including the accuser‘s mother, two of her college roommates, a former boyfriend and the alleged victim herself. 

In his written ruling Judge Terry Ruckriegel says—quote—“None of these witnesses offered testimony sufficient to support any conclusion that the victim intended by her actions or words to waive her physician-patient privilege with regard to the medical records of her treatment.  The victim never revealed the specific nature of her medical treatment, the substance of her conversations with the medical providers nor other confidential details of her condition and medical treatment including diagnosis.”

Big ruling.  My take, while I may be often wrong in predicting these rulings, this time I have to say I got it right.  Let‘s bring in our legal team—former California Prosecutor Dean Johnson, criminal defense attorney Jayne Weintraub and former Denver Chief Deputy District Attorney Craig Silverman. 

All right, Craig, you know you‘re pretty middle of the road on the Kobe Bryant case, sometimes you take the defense side and sometimes you take the prosecution side.  What do you make of this ruling from the judge? 

CRAIG SILVERMAN, FMR. DENVER PROSECUTOR:  This is the furthest thing from a surprise, Dan.  I think your prediction was right and I predicted the same thing.  The reason that this motion came up is because there‘s a Colorado court case saying they‘re entitled to have the hearing.  Look at what team Kobe gained.  They got an opportunity to ask questions of the mother and other friends.  And this is not the end of the issue.  It‘s the end of the issue about whether they get the medical records.  But it‘s still not clear that they are precluded from discussing the suicide attempt/overdose in Greeley on February 23 and the suicide attempt/overdose in Eagle on May 30. 

ABRAMS:  Jayne Weintraub, does this ruling come as a surprise to you? 

JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY:  No, it doesn‘t Dan and it‘s on a very narrow issue, as Craig was just saying.  I disagree with your assessment of the order, in that this doesn‘t mean that the information can‘t be cross-examined.  It doesn‘t mean that the accuser is free and clear of having any of these matters brought up in court.  All it means is that the defense right now has not met the threshold to show a waiver of the privilege to get the records.  It‘s a subpoena.  That‘s all it was for the record.  The issue of whether or not this information is relevant has yet to be determined.  That will be determined through a motion before the trial. 

ABRAMS:  Yes, but I‘ve got to believe, Dean, that this is the first step, I would expect, in saying no to the defense team in terms of bringing in some of these theories about why she may have consented.  I mean the defense wants to bring up the fact that she‘s bipolar to say that maybe that shows why she had increased sexual drive and maybe she was trying to get the attention of her boyfriend.  I expect that the judge will not allow those theories in unless the alleged victim mentions it herself on the witness stand. 

DEAN JOHNSON, FMR. PROSECUTOR:  Well, I think that might be right.  Her condition of being bipolar has probably limited relevance.  But that doesn‘t necessarily mean the game is over for Kobe.  There are plenty of other theories and there‘s a lot of other evidence out there that goes to the credibility of this victim.  This is a victory for the prosecution, obviously.  But I see it as a small victory in a much larger context. 

ABRAMS:  Why?  Why such a small victory?  We have been talking again and again, and not just us, but there‘s been a lot of talk out there about the medical records.  It‘s so important.  The defense kept saying we need to get the medical records.  We had days and days of hearings over this, with witness after witness, including the alleged victim being forced to testify.  And now the judge saying, sorry, you‘re not going to get it. 

JOHNSON:  Well, this victim still has to testify.  And remember, there‘s a great deal of evidence out there.  If you just go into the medical condition, that‘s one thing.  But going into increased sexual drive and going into the prior sexual history immediately before the event...

ABRAMS:  Yes.

JOHNSON:  ... immediately after the event, that‘s still fair game and that‘s still going to be an issue in this trial.  You may not get those precise documents, but as pointed out, we have some fairly good ideas of what those documents contain and the facts can still be explored at trial. 

WEINTRAUB:  And, Dan, don‘t forget there‘s a very big public policy reason why any court would be reluctant to release medical records without a specific waiver and necessity shown for the record.  Because remember, the issue itself is whether or not the information can be used in cross-examining her to show her credibility you know is lacking and that she made this up and she‘s histrionic, et cetera, et cetera.  But the issue is to promote—the reason the court is ruling in one big way is to promote people to go to the doctors...

ABRAMS:  Yes.

WEINTRAUB:  ... and tell the truth and to get medical help. 

ABRAMS:  All right.

WEINTRAUB:  Because if people go to medical—to get medical help and they think that it could be disclosed to just anybody, you know, people are going to be reluctant to get help. 

ABRAMS:  Craig, can the defense team now use—all these witnesses testified at this hearing, including the alleged victim herself, can the defense now use that testimony against her if it‘s inconsistent with something that she says later, for example? 

SILVERMAN:  Of course.  And that‘s what the huge advantage is.  Some motions you file expecting to win.  Other motions you file just to get a chance to question witnesses who would not otherwise talk to you. 

ABRAMS:  But isn‘t that kind of a sleaze ball move?  I mean...

(CROSSTALK)

ABRAMS:  ... if you‘re really just—if you‘re saying that they really never expected they were going to win this motion, and there they are asking for the most personal records, her medical records.  And really what you‘re saying is (UNINTELLIGIBLE) they knew they weren‘t going to get them anyway. 

(CROSSTALK)

SILVERMAN:  Well that is what I‘m saying, that the law gives them that right.  And if you were in trouble you‘d want your defense attorneys to do the same thing.  It wasn‘t sleazy.  It was just using the law to their advantage. 

(CROSSTALK)

WEINTRAUB:  It was in good faith. 

JOHNSON:  Now remember...

WEINTRAUB:  The motion was made in good faith. 

JOHNSON:  ... this is a no-lose situation for the defense.  You get all of this information.  You get to confront the accuser, see how she acts on the stand.  You get to confront a number of other witnesses.  If you lose the motion, you lose the motion, but you have all of that.  If you win the motion, then you‘ve also won another huge piece of evidence. 

ABRAMS:  Yes...

(CROSSTALK)

ABRAMS:  ... but you guys are analyzing this as the great lawyers that you are, as opposed to taking a step back for a moment, and what you‘re all saying is we knew they were going to lose.  Any defense attorney would know they were going to lose this motion.  And yes, you know what, but hey, you get a little benefit here and there out of asking for someone‘s medical records. 

SILVERMAN:  Well, you never know until you try. 

JOHNSON:  I don‘t necessarily...

(CROSSTALK)

ABRAMS:  Craig, Craig...

(CROSSTALK)

ABRAMS:  ... let me let Craig go.  Craig.

SILVERMAN:  Yes, you never know until you try.  It‘s possible that she told her mother or somebody else, I told the doctor exactly this and the doctor told me...

ABRAMS:  Yes.

SILVERMAN:  ... exactly that.  But that didn‘t happen, as the court‘s order makes clear.  So they took a shot, but they gained in the process. 

ABRAMS:  All right.  We shall see what happens from here.  But, you know, this is I think a significant setback.  Although as all of you point out, there is a long road ahead in this case.  Craig Silverman thanks a lot for joining us.  Dean and Jayne are going to stick around. 

Coming up, in the Michael Jackson case, a grand jury could hand up an indictment at any moment literally.  And two new details about at least three specific instances of alleged abuse a psychologist says the accuser and his brother told him about. 

Plus, a parent‘s nightmare, having to testify against his or her own child.  A Florida couple now fighting not to have to take the stand.  And they could go to jail if they continue to refuse. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, many expecting a grand jury to indict Michael Jackson at any moment.  We‘ll take a look at some of the new details in the case.

(COMMERCIAL BREAK)

ABRAMS:  Welcome back.  At any moment Michael Jackson could be formally indicted.  The grand jury in the case believed to have begun deliberations today. 

NBC‘s Mark Mullen is standing by in Santa Barbara.  Mark, any word? 

MARK MULLEN, NBC NEWS CORRESPONDENT:  Nothing so far.  We‘re looking for smoke signals.  That‘s basically how it‘s going to come out basically.  I‘m not kidding you Dan.  I mean we have people even watching the judge to see where he drives.  From a safe distance, we should also point out, but that‘s basically what it‘s come down to.  We do know, though, that we are in the window that an indictment could be handed down at any moment.  They have been at it for a good amount of time trying to decide whether Michael Jackson, whether there‘s enough evidence against Michael Jackson to warrant a trial.  We should clarify that‘s really what an indictment is. 

It‘s not necessarily a determination of guilt or innocence, whether there‘s simply enough evidence against the defendant, thus being Michael Jackson, to warrant a trial.  That said, though, we shouldn‘t minimize it.  It‘s a very big deal.  Michael Jackson, one of the biggest pop superstars in the world, could go on trial if he is indicted for one of the worst crimes that there possibly is.  So we all sit there and watch and wait. 

In the meantime, there are other aspects of the story, which are coming out today, including one that if you believed it, it actually sounds like some sort of episode out of “The Sopranos.”  Two people who have worked for Michael Jackson, associates, I guess we should call them, are accused—we understand by the accuser of Michael Jackson‘s mother—of somehow bullying the family in various nefarious acts.  I mean bottom line is these two associates are accused of threatening the family of Michael Jackson‘s accuser. 

Is there any truth to this?  At least according to the two men‘s lawyers, no.  As well, the two associates were invited to appear before the grand jury.  They said no way.  If it sounds pretty outrageous, it is an outrageous claim.  But it‘s the reason, Dan, we‘re using a lot of restraint in reporting this, in this case, which as you know has had just all kinds of crazy rumors...

ABRAMS:  And we‘ve got the so-called “Sopranos” lawyer on the program coming up in a couple of minutes...

(LAUGHTER)

ABRAMS:  ... so Mark Mullen, thanks a lot. 

All right, my take again.  I expect Jackson will be indicted soon.  Again, you know, a grand jury is not a difficult hurdle for these prosecutors to overcome.  Let‘s bring out “A” team, former California prosecutor Dean Johnson, criminal defense attorneys John Burris and Jayne Weintraub, as well as former Santa Barbara County Sheriff, Jim Thomas, who led the 1993 investigation into Michael Jackson.  He‘s now an MSNBC News analyst. 

All right, John Burris, first, let‘s talk about the law here.  You need 12 of 19 of the grand jurors to agree, correct?

JOHN BURRIS, CRIMINAL DEFENSE ATTORNEY:  Absolutely right. 

ABRAMS:  And pretty easy.  I mean you‘re a defense attorney.  But as a defense attorney, if you‘re representing Michael Jackson, are you holding up zero hope that there won‘t be an indictment, or just a little bit? 

BURRIS:  None.  No hope whatsoever.  I think given what we‘ve heard and seen and given the allegation that was set forth in the complaint, it‘s pretty certain that an indictment is going to come down.  The question is whether or not the indictment is going to be larger and more complaints—accounts than you had on the complaint itself.  In light of the fact that the brother himself has come forth—at least it‘s reported that he has more information and so, there could be some allegations against him as well.  There could be more allegations around alcohol abuse and pornography and et cetera.  So I look for a much fuller...

ABRAMS:  Wow...

BURRIS:  ... indictment than the complaint that initially was filed. 

ABRAMS:  Jim Thomas, what do you make of that? 

JIM THOMAS, FMR. SANTA BARBARA COUNTY SHERIFF:  Well, I think the brother has already spoken.  I think he was part of the initial complaint and probably part of the two counts of providing the intoxicants to a minor.  So I don‘t know that that‘s new information or information that was already filed. 

ABRAMS:  Dean Johnson, former California prosecutor, is it possible, likely, that maybe this grand jury will say, hey, thanks, Mr. Prosecutors for your nine-count indictment, but we want to hand up a 15-count indictment? 

JOHNSON:  It‘s certainly possible.  Grand juries can do pretty much anything they want.  I would suspect, though, that this grand jury indictment is pretty much going to track the complaint that‘s already on file.  And I have no doubt that there‘s going to be an indictment that comes down.  The only thing that gives me a little bit of pause is, as you know, Dan, there‘s a quirk in California law that requires the prosecution in the grand jury context to present defense evidence, if the grand jury wants to hear it.  In this particular case...

ABRAMS:  Only if the grand jury wants to hear it?  I thought that they were obligated to...

(CROSSTALK)

JOHNSON:  No, no, no, no, no, no.  The procedure is that the prosecution is required to advise the grand jury...

ABRAMS:  Right.

JOHNSON:  ... of any evidence that it thinks is potentially exculpatory.  The grand—it‘s up to the grand jury, if they say they want to hear it, they can say no, we‘re not interested.  We‘re going to hand down an indictment anyway.  But that‘s important in this context, because we already have a case going on...

ABRAMS:  Yes.

JOHNSON:  ... where there‘s been significant discovery and there‘s been already litigation about the existence of exculpatory evidence.  But bottom line, we are going to see an indictment.  It‘ll pretty much have the same scope as the complaint...

ABRAMS:  And Jim Thomas, any concern amongst those in law enforcement that you know maybe this won‘t be—we talked about a possibility of a grander, so to speak, indictment than the prosecutors initially filed.  But is there any concern that maybe these grand jurors will come back and say, you know what, we‘re only convinced, for example, of the providing alcohol to a minor charge and then maybe they wouldn‘t indictment on the other charges? 

THOMAS:  No, Dan, I don‘t think there‘s any concern at all.  In fact, law enforcement here obviously, and I‘ve talked about it before, felt that there was a good case going in right from the beginning.  I think they expect nothing less out of this grand jury.  And I think—I agree with the other gentleman that said that it will probably mirror the charges that have already been filed. 

ABRAMS:  Are they spooked at all by all of the new information that‘s come out?  I mean are you going to tell me that they‘ve known—that the prosecutors knew going in about all of the seemingly pro-defense information that‘s come out over the past few months? 

THOMAS:  I think they‘ve known about a lot of it.  I‘m not sure they‘ve known all of it.  But even to this day they still think that they have a good case, and that‘s the information that I get...

(CROSSTALK)

THOMAS:  ... is that they‘re comfortable with the case they have. 

BURRIS:  Dan, there‘s one issue and that is in the grand jury, and that is whether or not the prosecution examined the witness in such a way as to try to deal with the question of why didn‘t you make the statement at the very outset.

ABRAMS:  Right.

BURRIS:  Because that‘s a very difficult issue they have.  And a jury could see that and have some questions.  But they also could make sure examination is more developed and hallucinated to cover that particular point now. 

ABRAMS:  And very quickly, Jayne, if they don‘t indict for some reason, that doesn‘t mean the game‘s over, right?  They could still go to a preliminary hearing. 

WEINTRAUB:  They could, but they won‘t.  I mean that...

UNIDENTIFIED MALE:  They won‘t.

WEINTRAUB:  ... that would be the way to get off not prosecuting the case.

UNIDENTIFIED MALE:  Right.

WEINTRAUB:  Because if they can‘t even make the threshold of probable cause which is this much...

ABRAMS:  Yes.

WEINTRAUB:  ... are they going to bring it to a jury...

ABRAMS:  All right.

WEINTRAUB:  ... to convict him beyond a reasonable doubt?  I think the fact they‘re deliberating for any period of time is also a signal to the D.A. they might have problems. 

ABRAMS:  Oh come on.  Any high-profile case...

(CROSSTALK)

BURRIS:  No, no, I don‘t think so. 

(CROSSTALK)

BURRIS:  I would disagree...

(CROSSTALK)

WEINTRAUB:  ... indictment guys.  Come on. 

ABRAMS:  All right.

JOHNSON:  If they...

ABRAMS:  Quickly Dean, 10 seconds.

JOHNSON:  ... if they don‘t—yes, if they don‘t get an indictment—as a prosecutor, I probably would fold my tents and go away.  But I don‘t think Sneddon will.  I think he believes he‘s got...

ABRAMS:  Jim Thomas, is he going to fold the tents...

JOHNSON:  ... thinks he‘s going to get a conviction...

ABRAMS:  Is he going to fold the tents and go away Jim Thomas?

THOMAS:  No, I don‘t...

ABRAMS:  All right.

THOMAS:  ... think he folds the tent until trial. 

ABRAMS:  All right.  Jim Thomas, hey thanks a lot for coming back. 

Dean, Jayne and John are going to stay with us.

Jackson isn‘t the only one facing possible criminal charges.  You heard Mark Mullen talking about it before.  At least two of his former employees could also be charged for allegedly threatening Jackson‘s accuser and his family.  We‘ll talk to their attorney coming up.

(COMMERCIAL BREAK)

(NEWS BREAK)

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

ABRAMS:  Welcome back.  Well, we don‘t know exactly what has been said at the Jackson grand jury.  We do know many of those who testified, including the accuser himself, his younger brother, parents, as well as Dr.  Stanley Katz, the psychologist who the accuser and his brother told initially of the alleged incidents.  And Dr. Katz‘s report obtained by NBC News last month revealed some specific details about the allegations.  Allegations that were likely repeated in front of the grand jury.  Some of the details haven‘t been yet reported until now. 

The accuser‘s younger brother claimed he saw Jackson touching the accuser in an inappropriate sexual manner on at least three separate occasions—once on a golf cart and twice in a bedroom setting.  The brother who was 12 years old at the time of the alleged incident, 12 years old, told the psychologist Jackson placed his hands on the accuser‘s crotch over his pants and that he—quote—“kissed the boy a lot on the cheek and hugged him a lot in the golf cart.”  The brother also claims he saw Jackson touch the alleged victim on two other occasions in Jackson‘s Neverland ranch bedroom and he gave specific details about that. 

Now, this just fleshes out what Mike Taibbi reported last month, that the saw Jackson lick the accuser‘s head after he fell asleep on a flight back from Miami, and the accuser himself said Jackson gave him whiskey, vodka and rum and that Jackson had him watch images of naked women on Jackson‘s computer.  That Jackson appeared naked in front of him at one point saying—quote—“he had to masturbate or he‘d go crazy.”  And according to the brother, even asked the boys if they wanted to learn how to do that. 

Let‘s bring our legal team back in as to the specifics that the grand jury may have heard here.  Jim Thomas, former Santa Barbara County sheriff -- I didn‘t mean to thank you there before.  The specifics here—do you expect that in the grand jury this boy and his brother went through each and every one of the gory, gruesome details about what they claim they saw and heard, et cetera? 

THOMAS:  Yes, I do.  And I think they would have done that for two reasons, Dan.  Number one, is to be able to give the grand jury the information that they need to return an indictment.  But number two, this is an opportunity for the prosecutor to have these children testify in a court setting without having to go through a defense motion.  So it would have added to their experience level before they go to trial. 

ABRAMS:  And what is the argument—you had mentioned something to me yesterday as you were watching the program, you were saying that, you know, we were talking about the fact that the story has changed here.  That these boys are now coming up, giving these very graphic, specific details.  Here‘s what happened.  This happened to me.  And yet, not only did they not say it to Los Angeles Child Services, Santa Barbara did their own investigation and they found nothing as well. 

THOMAS:  Yes, but Santa Barbara did an investigation before there was

actually a victim, Dan.  There was no victim as far as law enforcement was

concerned until the interview with Dr. Katz and that was in June.  So at

that point they knew they had a victim.  They did the investigation, which

led to the seven counts of molestation and the two counts of providing the

intoxicants.  DCFS never took that further.  But I think you also have to

add the other part to that, is that at least we‘re understanding that there

may be additional indictments that come out, that would involve perhaps

pressure being put on this family during that period of time, which could -

·         and I emphasize could—have had an influence on how they testified to the Department of Child and Family Services. 

ABRAMS:  We‘ll talk about that in a minute.  But John Burris, as the defense attorney, do you basically suggest that all of the very specific details that these boys are providing, that they‘re making up all of them? 

BURRIS:  Well, certainly you have to wonder in terms of their credibility how this kind of information has come forward now and had not come forward before. 

ABRAMS:  But it‘s so specific, I mean, a golf cart and remembering exactly where they were and what Michael Jackson was supposedly doing and where his hands were and all of that for a 9 -- a 12-year-old boy or whatever to make up. 

BURRIS:  Well, certainly from a defense point of view, you know you have to attack that.  And then you‘re going to be looking for areas that—to see if there‘s any corroboration for it.  It could be fanciful, but the issue really becomes is there corroboration for it, the time and place and events and other issues that they really should know, if in fact it happened.  I would say from a defense point of view, yes, you‘ve got to be able to attack their credibility.  You don‘t know whether it‘s true or not.  But you certainly have to determine whether or not there‘s any other evidence that corroborates it or not.  The lack of evidence there is, the better it is for them.  And certainly prior statements, absence of statements will hurt significantly. 

ABRAMS:  And Dean, what if they just have, with regard to some of the allegations, just have the little brother‘s account?  Is that enough possibly? 

JOHNSON:  That‘s possibly enough.  I‘ve seen cases like this that have resulted in convictions just on the testimony of one young child victim.  And the thing that interests me is in reading this transcript, it reads like 100 pedophilia reports that I‘ve read over my career as a prosecutor, and the specificity is the key.  Specificity equals credibility.  That‘s why the prosecutor would want to put all of these details in front of the grand jury, in part, to test that credibility, to show the grand jurors how credible these people can be. 

ABRAMS:  And that‘s why it‘s so important...

(CROSSTALK)

ABRAMS:  ... to bring out as many as these details as we can to sort of flesh this out.  I‘m sorry, Dean, go ahead. 

JOHNSON:  Absolutely.  And I would also add that I partially agree with John Burris, in that there are going to be issues of credibility with these child victims.  But the thing that convinces me and I think is going to be convincing to the grand jury is their specificity...

ABRAMS:  All right.

JOHNSON:  ... and also, the physical evidence, such as child pornography and so on that may corroborate their testimony...

ABRAMS:  We shall see...

JOHNSON:  ... and cannot be...

ABRAMS:  ... what that is.  Jim Thomas...

(CROSSTALK)

ABRAMS:  Jim Thomas, thanks again for joining us and the rest of the panel stays with us. 

Coming up, we‘ll talk to the attorney for two of Michael Jackson‘s employees who could now face conspiracy and obstruction charges connected to their alleged treatment of the accuser and his family. 

And why should a husband and wife have immunity from testifying against each other and not a parent and child?  Isn‘t that relationship just as close?  We‘ll look at a Florida hit-and-run case where the parents could go to jail for refusing to testify against their child.

(COMMERCIAL BREAK)

ABRAMS:  We‘ve been talking about the grand jury in the Michael Jackson case.  But so far we‘ve only been talking about whether Michael Jackson will be indicted.  What about Jackson‘s associates who allegedly threatened Jackson‘s accuser and his family?  Prosecutors have been considering indicting them as well.  They could face charges of conspiracy, maybe obstruction.  Frank Tyson worked as Jackson‘s personal assistant. 

We can report that in an interview with psychologist Stan Katz, the brother of Jackson‘s accuser allegedly said—quote—“A Jackson security guard named Frank told us he would kill us and our parents” if they told authorities about Jackson giving them alcohol.  And the accuser‘s mother says Vincent Amen, a man who worked for Jackson‘s production company, held the accuser‘s family at Neverland ranch against its will.

Joe Tacopina is the attorney representing both Frank Tyson and Vincent Doman.  You guys know Joe Tacopina.  He joins us now.  Joe, thanks for coming back on the program.

JOE TACOPINA, REPRESENTING JACKSON‘S ASSOCIATES:  Sure Dan.

ABRAMS:  All right.  So first of all, did you know about that from the psychologist‘s report that the boy—the brother had said that a guy named Frank, presumably Frank Tyson, had said that they were going to do these things to them if they reported about the alcohol? 

TACOPINA:  I mean I‘ve heard the allegations.  Sure, Mike—I know Mike Taibbi broke it on NBC a while back.  You know I put it into the same credibility pot as all these other allegations that seem to be you know picking up steam, if you will, as the case goes forward.  It‘s ludicrous Dan.  I mean Frank Tyson is hardly a security guard.  He weighs about 130 pounds wet.  He‘s a dear, dear, very close personal friend of Michael‘s—of Jackson‘s, and he was his personal assistant.  He wasn‘t a security guard, a bodyguard, any sort of a guard.  And the allegation, like many of the other allegations I‘ve heard in this case, are going to fall by the wayside when tested, when challenged, when examined under cross examination, if I‘m given that opportunity. 

ABRAMS:  See here‘s my concern, is that you know I get the inconsistent stories.  I mean that‘s going to be a real big problem, I think, for the prosecutors in this case...

TACOPINA:  Yes.

ABRAMS:  ... is the fact they do these investigations, they don‘t turn up anything. 

TACOPINA:  Right.

ABRAMS:  But you know then you start having the kids throwing in these details.  I mean a detail like that Frank threatened he would, what was it, kill us or hurt us if we disclosed the bit about the alcohol.  I mean you know, it starts to add a level of credibility, no?

TACOPINA:  You know, Dan, I heard what the prosecutor said about the devils and the details, and when you have more details, certainly it lends credibility and that‘s true.  I used to prosecute these cases.  I‘ve defended them.  But you know you have to look at when the details came to be.  I mean if the details just came to the surface only a few weeks ago or a month or so ago, you know, you question why didn‘t the details arise before. 

And one thing I think that‘s been made clear is there have been allegations in this case about the accuser‘s mother and the children‘s mother in this case, and how she conducted the preparation of her children in the J.C. Penney lawsuit.  There‘s been some serious question as to whether or not she prepped them to say certain things in their deposition.  You know there are all sorts of problems with their credibility. 

I mean I don‘t think I‘m breaking this on the air here tonight.  I mean she‘s—has all sorts of issues that have been reported.  There are issues of perjury in depositions, in court-sworn affidavits.  Again, there are built-in credibility problems with this case, with this accuser‘s parents and with—and some of the details the accusers are giving.  If I have to answer these charges for my clients or client, Dan, I am so confident that we will—and I don‘t mean to sound cavalier, because I‘m not taking this lightly.  But I‘m so confident that we will shatter the notion that Frank or Vincent did anything wrong.  I‘m not only confident based on my conversation with my clients, based on witness conversations, but there are documents out there that will absolutely shred these allegations. 

ABRAMS:  Do you expect the grand jury to indict your clients? 

TACOPINA:  You know, this is the Michael Jackson case.  Normally, based on my review of this evidence, I don‘t even think we‘d be having a conversation about whether or not it‘s going to happen.  However, here, you know, I think this district attorney‘s case has some real holes in it, mainly the...

ABRAMS:  Right.

TACOPINA:  ... built-in credibility problems. 

ABRAMS:  But do you think...

TACOPINA:  And what I‘m saying...

ABRAMS:  ... do you think—yes, go ahead.

TACOPINA:  What I‘m saying, Dan, is in a case like that where there‘s so many issues, when you bring in the pale of cover-up, when you bring in the malodorous scent of intimidation of witnesses, it sort of lends credibility to the underlying charges.  So, I could see the tactical advantage in a prosecutor wanting to get an indictment for obstruction and witness tampering to strengthen the underlying case.  Do I expect it?  No. 

I expect that the jurors will listen to the exculpatory evidence provided by the defense, will look at some of the issues they have with the credibility of maybe the witnesses, and will realize that common sense and documentary evidence defies the allegations.  It didn‘t happen.  If they indict, we‘ll be there with bells and whistles ready to go and we‘ll have this discussion before a jury. 

ABRAMS:  Jayne Weintraub, this could become an important element of the case.  If the prosecutors can somehow show that you have Jackson employees strong-arming the family that would certainly bolster their case.  So, if it really bolsters their case and the prosecutors believe it, do you expect—apart from whether you think that they‘re guilty or not, do you expect that this grand jury will indict? 

WEINTRAUB:  I think that they would need more evidence other than—even for an indictment, other than just the 9-year-old little brother...

ABRAMS:  They have the mother too.  The mother is claiming that...

WEINTRAUB:  But...

ABRAMS:  ... she was—yes...

WEINTRAUB:  But the mother doesn‘t have a lot of credibility.  And as Joe was saying, I mean the mother‘s already, you know, been accused of suborting perjury, for lack of a better term, and already telling these kids what to say in order to get money.  You know it‘s called a little fact and a little—mixing with a little fiction Dan.  It‘s an old ploy.  You take a bit of a fact.  There was a security guard named Frank and you say he was trying...

ABRAMS:  Personal assistant.  Joe is clarifying.  He said he wasn‘t a security guard, a personal assistant...

WEINTRAUB:  But it‘s a little fact and a little fiction.  These kids are not babies, they can remember that.  They know that it‘s going to enhance their lives, make them millionaires, a lot of money.  Even the father didn‘t believe the little boy.

ABRAMS:  But why not just go sue in civil court then, I mean if, you know, if you want to get money? 

WEINTRAUB:  That‘s exactly where this case belongs, number one, and number two, if they were caught, if they did anything so stupid, where are the video cameras at Neverland Ranch?  Where are the security cameras at Neverland Ranch...

TACOPINA:  Yes.

WEINTRAUB:  ... to show that they were being held up there? 

ABRAMS:  Go ahead Joe...

WEINTRAUB:  ... come on. 

TACOPINA:  Yes, (UNINTELLIGIBLE) I‘ve been there.  Let me tell you.  There are no bars, there are no chains, there are no—there‘s nothing to hold anyone there. 

WEINTRAUB:  They love being there. 

TACOPINA:  The notion that—believe me they love being there.  And when the gravy train started to come to a screaming halt at the station, it became an issue of oh, you know we were held against our will.  Let me just tell you—there‘s no way to hold someone there without physically holding them down.  The place is too large, too spread open—look at that—too wide open, number one, no one was held against their will at Neverland.  And number two, what good exactly does sending them to Brazil against their will do?  That allegation is out there, too. 

ABRAMS:  All right.

TACOPINA:  What, they can‘t come back or they can‘t call the authorities from Brazil?  They don‘t have a million friends that can help them out? 

ABRAMS:  Dean Johnson...

TACOPINA:  ... it defies common sense. 

ABRAMS:  ... what do you make of this?

JOHNSON:  Well, the problem with that remark is that pedophiles don‘t hold people by chains.  They hold children by candy and soda and stuffed animals. 

TACOPINA:  These aren‘t pedophiles. 

JOHNSON:  Never, Neverland...

TACOPINA:  ... different allegation. 

JOHNSON:  Neverland is a place that would be a pedophile‘s dream. 

TACOPINA:  No, you‘re mixing up the allegations. 

JOHNSON:  What‘s real clear about this is that the strength or weakness of the case against the employees is roughly equal to that of the strength or weakness of the case against Jackson.  They depend on the credibility...

ABRAMS:  You know...

JOHNSON:  ... essentially of the same witnesses...

ABRAMS:  But see, I‘ve got to tell you.  I think it‘s actually weaker...

JOHNSON:  There are going to be credibility issues going...

ABRAMS:  Right.

JOHNSON:  ... all over the place here...

ABRAMS:  But I‘ll tell you why it‘s weaker Dean...

(CROSSTALK)

TACOPINA:  Because I‘m involved, right Dan?

ABRAMS:  No. 

TACOPINA:  Oh.

ABRAMS:  ... it‘s weaker, because Joe‘s involved.  But also, more

importantly, is that I think that when the mother is probably the difficult

·         the most difficult one with regard to credibility...

TACOPINA:  Absolutely...

ABRAMS:  ... meaning I think she‘s the easiest one to attack in this case, and if the case against them relies in large part on the mother‘s account, I think that‘s a much harder case than relying on two kids who sit up there and say look, this is what happened to me.  Do you disagree, Dean? 

JOHNSON:  No, I don‘t disagree.  But I think, as I said before, that there is a lot of evidence to corroborate these kids‘ statements...

ABRAMS:  Yes...

JOHNSON:  ... and they go into a great deal of detail...

ABRAMS:  All right.

JOHNSON:  ... and specificity equals credibility. 

ABRAMS:  We shall see.  Joe Tacopina, good to see you.  Thanks for coming on.

TACOPINA:  Like the sweater, Dan?

ABRAMS:  I love the sweater, Joe.  Looking beautiful. 

Two Florida parents fighting to not have to testify against their daughter in a hit-and-run case.  They could soon be behind bars.

(COMMERCIAL BREAK)

ABRAMS:  Imagine your child is accused of breaking the law and the prosecutor demands that you, the parent, testify against your child.  That‘s a scenario unfolding in a Florida courtroom.  The case involves a fatal hit-and-run in Tampa on March 31.  Two brothers age 13 and 3 killed.  Two other siblings injured.  Witnesses said they saw two cars leave the scene.  One car was heard shifting gears as it dragged a victim underneath.  Nearly a week after the accident, 21 -- 28-year-old Jennifer Porter, an elementary school teacher, came forward admitting she was driving one of the cars and she tearfully apologized to the boy‘s mother. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  I‘m sorry.  I‘m so sorry.  I wish there was more that I could say to ease your pain.  I know there is nothing I can do to bring your two precious sons back.

(END VIDEO CLIP)

ABRAMS:  But so far Porter is not talking to police, claiming she‘s too distraught.  And of course she has a Fifth Amendment right against self-incrimination.  Now prosecutors are trying to force her parents to testify about what she told them happened that night.  Yesterday under threat of jail time, James and Lillian Porter promised the judge they‘d talk to prosecutors.  But today they changed attorneys and it‘s now unclear if they‘re going to show up. 

Almost every state recognizes a spousal privilege, preventing spouses from being forced to testify against one another.  But only four states recognize the special protection to keep parents from being compelled to testify against their children.  There is a bill pending before Congress, which would establish that privilege in federal law.  My take?  It‘s difficult for me to accept that the relationship between husband and wife is so much more sacrosanct than that between a parent and child. 

Let‘s bring back our legal panel.  John Burris, what do you make of this case? 

BURRIS:  Well, certainly the law does not support the parents now.  I firmly believe that parents should have this type of privilege.  I agree that the relationship can be in many ways much more sacrosanct than marriage, given how that people get divorced these days.  But the parent situation is such that if it were me and I was in a position advising clients, I would let them know that the privilege doesn‘t exist, what the ramifications of it are, and it may be that—you know that it may be in the best interest, long-term interest of their relationship with their child that they face the contempt issue and call the prosecution‘s bluff. 

Obviously, you can‘t tell them to violate the law, but you can certainly give them their rights because a long-term relationship is so important, that I think it transcends any particular case.  And I think—

I‘ve seen where a parent has to testify against a child, and it tears that parent up and it tears that child up and it very well could terminate the relationship. 

ABRAMS:  And, yet, Dean, as a prosecutor you look at this case and you say, yes, OK.  I mean I understand that.  But there are two dead kids here.  A couple of others injured and we want to get to the truth here. 

JOHNSON:  Yes, exactly.  This—I think this is a real good case for illustrating why there shouldn‘t be a parental privilege.  We have Jennifer‘s lawyer, Barry Cohen, who now also represents the parents, taking contradictory positions.  On the one hand, he‘s saying look, I have an affidavit from Jennifer where she says she was involved in the accident.  That should be enough.  You should let the parents go.  On the other hand, he‘s excoriating the police for saying that they‘re not out looking for other suspects.  The prosecution obviously needs more information here.  They need to know what the parents have to say, not only to know whether to proceed, but what charges...

ABRAMS:  But is there...

JOHNSON:  ... to proceed on. 

ABRAMS:  But is there a difference between this and the husband-wife? 

I mean it seems to me it‘s really the same principle. 

(CROSSTALK)

JOHNSON:  Well, there‘s similar principles.  But, you know, we really don‘t even know the historical origins of the spousal privilege.  It goes back even before written records.  I can think of some distinctions between the two.  For one thing, the relationship between spouses is something that‘s created by the law and can be dissolved.  The relationship between parents and children is a blood relationship and will never be dissolved.  And the relationship between a spouse...

(CROSSTALK)

JOHNSON:  ... is something that we want to protect as a matter of social policy, because, obviously, if spouses are divided over testimony in court, there are third parties that may be affected, i.e. children...

ABRAMS:  All right.

JOHNSON:  ... children...

ABRAMS:  Jayne, go ahead...

(CROSSTALK)

WEINTRAUB:  I just—I can‘t help it.  I mean I just can‘t wait—

Dean, hold on.  The parents weren‘t witnesses.  They weren‘t even present. 

You say this is the perfect example of a case where parents should be...

JOHNSON:  Absolutely, because...

WEINTRAUB:  Hold on, hold on.  They didn‘t witness it.  They didn‘t see it.  What you‘re saying is you don‘t want to promote kids or young adults from speaking to their parents and talking to their parents as a matter of public policy.  You want to encourage that if you say something to your parents, it will be used against you.  That‘s great. 

JOHNSON:  This is a woman who, according to reports...

WEINTRAUB:  That‘s...

JOHNSON:  ... has confessed to her parents.  And I don‘t want to take relevant evidence...

(CROSSTALK)

JOHNSON:  ... out of the court unless there‘s a damn good reason to do it and the...

(CROSSTALK)

JOHNSON:  ... with me. 

WEINTRAUB:  What‘s the reason?

JOHNSON:  Historically the creation of new privileges has been disfavored by the courts, and I don‘t want to see any more relevant evidence taken out of the courts...

BURRIS:  But you know—but the privilege is much more important.  You have cases in juvenile cases where kids talk to their parents, and parents are placed in a position to testify against them, which could be the most horrible situation of all.  So, I think we have to look at this in terms of the importance of the privilege beyond this individual case and whether it provides evidence or not.  I think that there should be this kind of parental-child privilege...

WEINTRAUB:  Absolutely.

BURRIS:  ... that it should exist and we should not limit it just because we have this particular case.  It has not developed...

ABRAMS:  But where do you draw the line, John?  What about...

(CROSSTALK)

ABRAMS:  What about brother-sister? 

(CROSSTALK)

ABRAMS:  Hang on one second...

(CROSSTALK)

ABRAMS:  Hang on one second...

(CROSSTALK)

ABRAMS:  Hang on one second, Dean. 

(CROSSTALK)

BURRIS:  There‘s no question...

ABRAMS:  What about...

(CROSSTALK)

ABRAMS:  What about—hang on one second, Dean.  What about—John, what about siblings?  I mean...

BURRIS:  I agree...

ABRAMS:  ... what about stepparents? 

BURRIS:  I agree that there comes to a point where you have to draw the line.  And I do—and I don‘t—and I can‘t tell you where that necessarily is.  It‘s a question of public policy. 

(CROSSTALK)

BURRIS:  But I will tell you, just like we drew the line with the marital privileges and priest privileges, we can draw the line with mothers...

ABRAMS:  Go ahead, Dean.

BURRIS:  ... and kids, but not necessarily go beyond that. 

JOHNSON:  Remember the old saying, John, hard cases make bad law. 

BURRIS:  (UNINTELLIGIBLE)

JOHNSON:  This is a case where both sides seem somewhat sympathetic. 

I can remember cases as a prosecutor where I work—where I prosecuted or helped prosecute serial killers, and some of the best testimony that came out was from the serial killer‘s own mother.  I‘d hate to think that a...

WEINTRAUB:  But this is a fishing expedition...

JOHNSON:  ... John Bundy type of serial killer would be walking around out there...

BURRIS:  Well there‘s no question there may be an example of that...

WEINTRAUB:  They‘re just fishing.  They...

(CROSSTALK)

JOHNSON:  But the problem is...

ABRAMS:  Hang on.

JOHNSON:  ... the big problem is, John, once you create a blanket privilege you can‘t draw that line...

(CROSSTALK)

WEINTRAUB:  Dan...

BURRIS:  But you know what...

(CROSSTALK)

ABRAMS:  Jayne Weintraub gets the final word here...

(CROSSTALK)

ABRAMS:  Jayne Weintraub...

(CROSSTALK)

ABRAMS:  Hang on.  Dean, hang on.  Jayne...

WEINTRAUB:  Most D.A. offices and U.S. Attorney offices have policies in place that they don‘t have immediate family members testifying against other immediate family members...

ABRAMS:  All right.

WEINTRAUB:  ... whether there‘s a privilege based in law or not. 

ABRAMS:  All right.

WEINTRAUB:  It‘s public policy and it‘s important. 

ABRAMS:  Dean Johnson, John Burris and Jayne Weintraub, thanks a lot for spending the hour with us. 

WEINTRAUB:  Thanks Dan.

ABRAMS:  Coming up, my “Closing Argument” and “Your Rebuttal”.  Why one viewer thought it was disgusting to ask whether the parents of the Columbine shooters should be held responsible for their children‘s actions.  Your e-mails up next.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, why the California Supreme Court just sends the right message to sleaziest lawyer.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—kudos to the California Supreme Court for forcing lawyers to evaluate whether they‘re involve in silly or frivolous cases.  The question the court faced, can lawyers be sued for malicious prosecution if after they file a case, they learn their lawsuit is not—quote—“supported by probable cause.”  Meaning, if they figure out later that they filed a frivolous lawsuit, do they have to stop?  Might they have to pay?  The court‘s answer, yes.  I support anything that forces lawyers to take some responsibility that avoids allowing them to just say, well, I‘m just representing my client.  Of course, on the other side, some lawyers fought hard to avoid liability saying that will lead lawyers to—quote—“second-guess their cases.”  What‘s wrong with that? 

This means California is now in the majority on this issue.  Now it‘s just time to start filing some cases and holding more lawyers responsible for wasting taxpayer dollars on time consuming and harassing cases that only serve to embarrass the legal profession and clog our legal system. 

I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  Last night in my “Closing Argument” I criticized defense attorneys in more liberal areas for trying to garner juror sympathy by attacking Attorney General John Ashcroft rather than addressing the facts.  But I also said Mr. Ashcroft has provided ammunition to these attorneys by getting involved in decisions usually reserved for the local prosecutors like when to plea bargain and whether to seek the death penalty. 

Paul Levine from Boulder, Colorado writes, “I don‘t think it‘s fair or logically consistent to admit that the attorney general is exerting inappropriate influence in charging decisions, but then deny that it could ever possibly create a legitimate issue to be raised by the defense in specific cases.” 

Paul, it has nothing to do with the facts of the case.  If during the penalty phase, an attorney wants to suggest that the only reason they sought the death penalty is because of John Ashcroft, I don‘t know, maybe that makes sense, although I don‘t know that a judge would allow it.  But these gangsters and drug dealers aren‘t being arrested and prosecuted because of John Ashcroft. 

And last night, the five-year anniversary of the Columbine shootings.  We talked about whether the parents of Eric Harris and Dylan Klebold should be and have been held responsible for their son‘s actions. 

Hamilton College student Ryan Connor from Gaithersburg, Maryland, “I find it disgusting that you are asking are the parents to blame?  Pointing fingers at individuals and blaming a particular person or group of people is not what needs to happen now.”

Ryan, that‘s nice sentiment, but now it is time to come back to reality.  They‘ve been sued.  Most of the cases have been settled.  I‘m sorry that you don‘t like the topic, but I didn‘t file the lawsuits. 

Finally, the so-called exclusive story on “Good Morning America” yesterday about Michael Jackson, which turned out to be based on the exact same document we reported on over a month ago.

From Wheaton, Illinois, Barbara Smith, “ABC has a lot of nerve.  I heard the tease about Michael Jackson this morning on “Good Morning America”, so of course I listened only to find the same report I heard on THE ABRAMS REPORT weeks ago.  There ought to be a law.”  Barb, there ought to be a law.   

Your e-mails abramsreport—one word -- @msnbc.com.  We go through them and read them at the end of the show.  Please include your name and where you‘re writing from.

Coming up next, “HARDBALL” with Chris Matthews.  Chris talks with journalist Bob Woodward about his controversial new book about the White House and its Iraq plan of attack. 

Thanks for watching.  See you tomorrow.

END   

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