updated 4/26/2004 10:21:35 AM ET 2004-04-26T14:21:35

Guests: Jack Spencer, Ed Hernstadt, Paul Pfingst, Brian Wice, Yale Galanter, Laura Brunnett, Douglas King, Russell Edgar

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

DAN ABRAMS, HOST:  Hi, everyone.  The images are stark and powerful—

America‘s war dead returning home from Iraq in flag-draped caskets.  These pictures have set off a firestorm since the Pentagon does not permit the photographing of coffins returning from war.  We ask—isn‘t it time to end that policy? 

Plus, Michael Jackson‘s accuser—there are numerous reports about the boy having a difficult time both in front of the grand jury and afterwards.  Even if this is partially true, couldn‘t it mean that that‘s a big problem for the prosecution? 

And two parents serving time after their son threw a party at their home.  One teen nearly died of alcohol poisoning, but the parents say they were just trying to provide a safe place for the high schoolers to go and they didn‘t know that alcohol was being served.  We have a live truck at the home where the mom is currently under house arrest.  We‘ll talk to her. 

But first, over 700 American servicemen and women have been killed in hostile and non-hostile incidents in Iraq and Afghanistan since fighting began.  And yet, the public hasn‘t seen any of the military ceremonies honoring their return home to U.S. bases.  Why?  Because the Pentagon doesn‘t allow it. 

Now the rule‘s apparently been broken.  These photos of flag-draped coffins at Dover Air Force Base were published on a Web site after a First Amendment activist used the Freedom of Information Act to obtain them.  What many did not know is that these photos are taken by the military. 

They just weren‘t releasing them to the public. 

Another photo taken by a contract worker in Kuwait showed coffins being loaded into a cargo plane.  That appeared on the front page of last Sunday‘s “Seattle Times,” the woman and her husband fired for releasing the photo.  The Pentagon says it has a policy dating back to 1991 of not showing coffins returning to U.S. bases.

Quote—“The principal focus and purpose of the policy is to protect the wishes and privacy of the families during their time of greatest loss and grief.” 

My take?  If this policy were solely for the families, ask them what they want, as opposed to having a blanket rule.  And why is the policy only enforced at all bases beginning at the outset of the war with Iraq?  Makes you wonder whether this is just a political effort to avoid the realities of war.  Why have they made exceptions for bodies from old wars that were recently discovered? 

To debate this I‘m joined by Ed Hernstadt, a First Amendment attorney in New York and Jack Spencer a senior security expert at the Heritage Foundation, a conservative think tank.  Gentlemen, thanks for coming on the program. 

Mr. Spencer, let me just start with you and give you an opportunity to respond to what I just said. 

JACK SPENCER, HERITAGE FOUNDATION:  Well I think first and foremost we have to keep in mind that—or I believe, that this should be up to the Pentagon.  That the Pentagon should have control of those photos and of all that information from the time those soldiers leave the battlefield until the time that they‘re handed over to the families.  And at that time the families do have the discretion.  They can invite whoever they like to the funerals, if that‘s what they choose to do. 

ABRAMS:  But see the problem is the Pentagon keeps making it seem like they‘re doing it for the families...

SPENCER:  Well they are doing it for the families.

ABRAMS:  Let me give you a statement from Jane Bright, the mother of a son killed in Iraq.  We need to stop hiding the deaths of our young.  We need to be open about their deaths. 

Now whether she represents the minority or the majority, why can‘t if it‘s all about what the families want, then why doesn‘t the Pentagon say we‘re going to decide, based on the family‘s wishes, if they are comfortable with these being photographed when they return to Dover, then we‘re going to let it happen. 

SPENCER:  That‘s exactly what they do.  They allow... 

ABRAMS:  No.

SPENCER:  ... the families—yes, they do.  They allow the families...

ABRAMS:  It‘s a blanket policy that says you can‘t...

SPENCER:  Well you can‘t divide—you are asking something that would be impossible.  What if two families want it and two families don‘t?  What the Pentagon does is they hold these images until the families—until the bodies go back to the families.  It is about the families and you can‘t argue...

ABRAMS:  But they don‘t...

SPENCER:  ... that the Pentagon...

ABRAMS:  ... they don‘t release the pictures, though...

SPENCER:  Give me a moment.  Give me a moment.  What we need to understand is that the Pentagon is not trying to hide the number of casualties.  They‘re very open about it.  You can look on any number of...

ABRAMS:  It‘s not numbers we‘re talking about. 

SPENCER:  ... you can look at any number of Web sites and see pictures and bios of the men and women who have died in the war on terrorism.  Let‘s look at what really is happening here.  It‘s not about the flags and the coffins, I‘m afraid.  What we‘ve seen in the last couple of weeks is that further (UNINTELLIGIBLE) of this agenda to try to Vietnamize the war in Iraq...

ABRAMS:  It‘s not true.  Look...

(CROSSTALK)

SPENCER:  No, it is true...

(CROSSTALK)

ABRAMS:  It‘s not true...

(CROSSTALK)

ABRAMS:  I‘ll tell you it‘s not true coming from someone who supported the war, me...

SPENCER:  I support this.

ABRAMS:  ... no, me and yet, I still support the idea of making sure that we are allowed to cover—and again, I just think it‘s dishonest, that‘s what angers me about it...

SPENCER:  How is it dishonest?

ABRAMS:  It‘s dishonest because they claim...

SPENCER:  No...

ABRAMS:  ... it‘s for the families. 

SPENCER:  It is for the families...

ABRAMS:  Then why not let...

(CROSSTALK)

ABRAMS:  ... you just said to me...

(CROSSTALK)

ABRAMS:  ... that it‘s not for the families because they can‘t decide.  You said you can‘t get into the business of allowing the families to decide what happens, and we‘re talking about arrivals.  Arrivals at U.S. bases...

SPENCER:  Exactly.

ABRAMS:  ... because that would become too cumbersome... 

SPENCER:  And if you think that...

ABRAMS:  ... is your position.

SPENCER:  You would have groups of paparazzi...

ABRAMS:  Right.

SPENCER:  ... taking advantage of this.

ABRAMS:  What do you mean paparazzi?  They can‘t restrict bases, who comes on to bases, you are going to have paparazzi?  Come on...

(CROSSTALK)

ABRAMS:  Let me let Ed...

SPENCER:  That would fall in the—the images would fall into the hands of the paparazzi...

(CROSSTALK)

SPENCER:  ... and they would be exploited.  They would...

ABRAMS:  Ed Hernstadt...

SPENCER:  And the images are available now.  The images are out there...

ABRAMS:  Let me let Ed Hernstadt...

SPENCER:  ... for the world to see.

ABRAMS:  Go ahead. 

ED HERNSTADT, FIRST AMENDMENT ATTORNEY:  Dan, actually, I agree with you completely.  I think this is not about whether the bases are being closed or paparazzi are going to have access to it.  There‘s no question under law bases can be closed and access can be limited or denied.  This is a political question.  If you look at the images that are at issue, they‘re not the type of images that we saw on the cover of major news magazines a couple of weeks ago of body parts or of actual human beings who have been torched.  And this is not a question of whether the press should be able to have access to photographs of Princess Di.  These are flag-draped coffins and they‘re anonymous.  Nobody knows who they are.  Nobody knows the names of the people in the coffins.  We all know the names of the soldiers, the men and women who have fallen.  They‘re published in the paper.  They‘re available on Web sites. 

ABRAMS:  What about the fact, Mr. Hernstadt, that this has been a policy that has been in place effectively since 1991.  Now, the administration you know has to confess that it‘s been enforced more stringently as of late.  But it‘s still a policy that‘s been around for a while.  And if it was a policy that‘s been around for a while and all they‘re doing is trying to enforce it more fairly and you know in a more even-handed fashion now, is it really that big a deal?

HERNSTADT:  Well I don‘t think that‘s actually—it‘s not clear that that‘s the case.  Since ‘91 there‘s been a policy of limiting access to Dover, which is the principal mortuary for all the different services.  And now the case that was litigated in the early ‘90‘s where a district court and an appellate court in Washington agreed that certain limitations could be made to access to Dover Air Force Base for taking pictures.  The new policy and the one as you pointed out that was instituted for the Iraq war limits—extends the Dover policy to all facilities. 

And even that‘s not really what‘s at issue here, because there‘s a second question.  These photos were not taken by press who were given access to Dover or some other military facility.  These are photos that were released by the government, taken by the government, not the press, and released pursuant to a Freedom of Information Act.  So the question then becomes does the government have the right to withhold these types of photographs.  How are photographs of military coffins draped with flags that are anonymous, you don‘t know who the individuals inside these coffins are, how are they classified?  How are they somehow subject to secrecy so that a Freedom of Information...

ABRAMS:  Yes.

HERNSTADT:  ... Act request would...

ABRAMS:  All right.

HERNSTADT:  ... not get them out? 

ABRAMS:  Mr. Spencer, let me ask you the final question.  You don‘t think that there‘s a level of intellectual dishonesty to suddenly say right before the war with Iraq that it‘s going to apply at all bases, when even if it had been the policy it hadn‘t been enforced at all bases, that it‘s clearly a policy that is directed at the war with Iraq?

SPENCER:  I think that the war in Iraq, it was understood that there were going to be people coming home.  This was going to be an issue and they wanted to get the policy right to begin with.  And I think in the bottom of my heart it is about the dignity of the soldiers coming home and the families there to receive them.  That‘s what it‘s about. 

ABRAMS:  Look, it‘s a tough issue.  I—you know this is not one of these issues that as I do on some of these cases where I just see it as black and white.  I mean look if I really believed that this was for the families at all times, I would support it.  My problem is that I think that you know when you‘ve got some families who support it and some families that don‘t, you can‘t be necessarily speaking for the families.  You‘ve got to admit that the reason we‘re doing this is because we, the Pentagon, want it to be this way and that‘s the policy for that reason OK. 

Ed Hernstadt and Jack Spencer, thanks a lot. 

SPENCER:  Thank you.

HERNSTADT:  Thanks. 

ABRAMS:  Before we move on today, we found out that Army Ranger and former NFL star Pat Tillman died in Afghanistan while searching for al Qaeda terrorists.  Tillman turned down a multimillion-dollar contract with the NFL to serve this country.  The day after 9/11 Tillman talked about what drives him. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  You kind of take it for granted, especially in the country we live in.  We are such a free society, and you know we look at that flag—and I do—I‘ve always had a great deal of feeling for the flag.  But even someone who considers themselves that way, you just don‘t think about it all the time.  You don‘t realize what it gives.  You don‘t realize how great a life we have over here. 

(END VIDEO CLIP)

ABRAMS:  I‘ve got to tell you.  I‘d say the term hero isn‘t good enough.  My thoughts on Tillman are coming up in my “Closing Argument” at the end of this program.  

(COMMERCIAL BREAK)

ABRAMS:  Coming up, there are reports that Michael Jackson‘s accuser under performed for prosecutors at the grand jury.  If that‘s true, how bad is that for the prosecutors?

(COMMERCIAL BREAK)

ABRAMS:  Now to the Michael Jackson case where there have been a lot of reports about the accuser having difficulty during his testimony in front of the grand jury.  “Celebrity Justice” even reported that after the boy testified he and his mother became so emotionally distraught they almost threw in the towel.  Look, some of these reports may be overblown, especially since the defense is not even present during the grand jury process.  But even if it‘s true that the accuser is having some difficulty, isn‘t performing the way the prosecutors had hoped, isn‘t that a huge problem for the prosecution? 

My take, yes, that if this boy is crumbling in any way now, the cross examination in front of a jury is going to be even more difficult.  Let‘s bring in today‘s “A Team”—former San Diego prosecutor and MSNBC analyst Paul Pfingst, criminal defense attorney Yale Galanter who represents O.J.  Simpson among others, and Houston‘s Brian Wice. 

All right.  Paul, I mean look we don‘t know the extent of this, all right, and I don‘t think we should get hysterical here and start suggesting oh the kid‘s falling apart.  You know, I‘m hearing a lot of different stories about what actually happened, and since the defense wasn‘t there, I‘m not going to rely on this 100 percent.  But let‘s just sort take a conservative view of this and say that he didn‘t perform as well as prosecutors had hoped.  Even if that‘s the case, isn‘t that a big problem? 

PAUL PFINGST, FMR. SAN DIEGO DISTRICT ATTORNEY:  Well, it is, because, Dan, for all intent and purposes the prosecution cannot win this case unless the victim does well on the witness stand.  There‘s not the type of corroborating evidence.  There‘s no confession.  There are not the types of things that can overcome a bad day on the witness stand by the victim.  So this is an important matter for the prosecutors and there‘s no way to underplay the importance of this in this case. 

ABRAMS:  But Brian, on the other hand, these grand jurors felt there was enough evidence to send the case to trial.  So, you know even—apparently he didn‘t completely crumble to the point where he wasn‘t credible. 

BRIAN WICE, CRIMINAL DEFENSE ATTORNEY:  Yes, but don‘t forget the standard of proof is infinitely...

ABRAMS:  I know, I know, I know, I know...

WICE:  ... different in...

ABRAMS:  Don‘t get—I know the standard of proof is very low at grand jury...

(CROSSTALK)

ABRAMS:  ... blah, blah, blah. 

WICE:  Yes, but let‘s cut to the chase.  Look I mean the grand jury for this kid is spring training.  It‘s the open book test.  When he hits the inside of the courtroom with Geragos and Ben Brafman staring him down, it‘s going to be where the rubber meets the road.  I mean if he couldn‘t get it together in the context, the friendly confines, if you will, of a grand jury room where the prosecution is smiling and the citizens on the grand jury ultimately wanted to try to do the right thing, believe me it‘s going to be hell to pay when this case hits the inside of a trial courtroom later on this year. 

ABRAMS:  Yale, what about that?  I mean what about the fact that, you know—all right, let‘s assume, again, that something didn‘t go as well as the prosecutors had hoped inside that grand jury room and, yet, these grand jurors still indicted. 

YALE GALANTER, CRIMINAL DEFENSE ATTORNEY:  Well, the theory is that they were in the grand jury room and Sneddon asked them about you know the prior inconsistent statements that they had given, that this event didn‘t occur to both the complaining witness and the mother, and that‘s allegedly what got them so distraught.  If that‘s accurate and that‘s true, it‘s a major blow to Sneddon‘s case.  He didn‘t have a strong case going in because as my colleagues said, there was no corroborating evidence.  When they get in front of a jury and they‘re cross-examined for the first time, they‘re going to be like fish out of water because either Brafman or Geragos are just going to rip them apart. 

ABRAMS:  Yes, I got to tell you I‘m hearing all sorts of possible theories about what it is that led them you know—and I‘m trying to be real careful about this, because I don‘t want to just report hearsay on this.  But Paul, you know, if you are Tom Sneddon, again, and you know not being in there...

PFINGST:  Yes.

ABRAMS:  ... is a big disadvantage.  But what do you do now?  Meaning, let‘s assume that there were some problems.  Do you then meet with the boy again?  Do you talk to him now?  Do you have practice sessions? 

PFINGST:  No, actually Dan, I don‘t get too concerned about it.  Because what I have learned over the course of many years of dealing with these witnesses is one day can be a bad day.  The next day can be an Oscar-winning performance.  And any defense attorney who—and this is where I part company from our guests—any defense attorney who thinks that they‘re sharpening their knife and fork and going to cut into a young boy talking about a sexual abuse is going to walk into their doom.  Because these kids often do best on cross-examination.  In an odd type of way, direct examination is tougher for these kids than cross-examination.  And so I think at this point if I‘m Tom Sneddon, I‘m not going to be that worried about it unless the child or the youngster and his family become uncommitted to going forward, and that could be a devastating blow.  That‘s what you have to worry about. 

ABRAMS:  All right, let‘s talk about the defense.  The defense is suggesting that they may file a motion saying, you know what?  This grand jury was handled all wrong.  They were—let me read you a statement from Mark Geragos as to how he characterized the way the grand jury was run. 

I believe—“If you believe what was reported we‘ve people covered up wrapped in blankets, put into vans driven around like they‘re Osama bin Laden‘s lieutenants and put into a training facility, then admonished in the procedure and then spirited out into the afternoon sun.  That has had an enormously chilling effect on the defense in terms of all the witnesses.”

Paul, legitimate claim from the defense team here, and could it go anywhere? 

PFINGST:  This motion is predictable as the sun rising in the morning.  Whatever happened with this grand jury Mark Geragos was going to file a motion.  And if they weren‘t secret, then he would claim it was too open and it was prejudiced.  So, this is lawyering that‘s not going to go any place.  What is going to go someplace is the direct and cross examination of the victim and whether or not Michael Jackson chooses to take the stand. 

ABRAMS:  Yale, you agree? 

GALANTER:  Totally.  Mark‘s laying a record, as he should, for a possible appeal should Michael be convicted.  First of all, you know Geragos‘ statements are probably an exaggeration.  You know the marshals or the security people weren‘t treating him like Osama bin Laden...

ABRAMS:  But they did move...

GALANTER:  They were taking security...

(CROSSTALK)

GALANTER:  ... precautions as they should. 

ABRAMS:  Yale, very unusual to move the grand juror—the grand jury from place to place, right? 

GALANTER:  It is unusual.  But I‘m not sure that an appellate court would say it was unusual in this case. 

(CROSSTALK)

GALANTER:  I mean look at what happened to Jackson‘s last court appearance.  I mean it was like an orchestrated event. 

ABRAMS:  Yes.

GALANTER:  And that‘s not anybody‘s fault.  It‘s just that Jackson took over and Jackson‘s people took over, and it really became a circus-like atmosphere.  I‘m just hoping that for his arraignment on Friday he‘s a lot better behaved.

ABRAMS:  He will.  I mean look, Brian, there‘s no question, right?  I mean “A”, the authorities are telling us they‘re not going to let it happen.  But “B”, if you‘re his attorney you‘re not going to let it happen. 

WICE:  If you do, they ought to take your ticket to practice law off your wall.  I mean that‘s absurd.  But if I can just say one thing about Geragos‘ take on the whole grand jury proceeding, Dan.  I mean it‘s a great sound bite.  You need to call Olbermann‘s people to get it on “COUNTDOWN”.  But it‘s legally worthless.  I mean for a couple of guys making A-Rod type money, that‘s pretty lame. 

Grand juries in this country indict people routinely in cases much more compelling than this.  And to the extent that we have anonymous juries in really serious cases, I really think that Geragos‘ sound bite is as worthless as last week‘s lotto ticket.

ABRAMS:  All right.  Let me read you the statement from Michael Jackson.

“As I release this statement there are helicopters hovering above my residence, reporters staking out and photographers lurking behind bushes, running rampant around my compound.  I‘m respectfully requesting that media organizations please respect my privacy and that of my children.”

Paul Pfingst, anything Jackson can do?  I mean are helicopters allowed to fly over his compound without permission? 

PFINGST:  Yes.  I mean we go back to the old Princess Di/paparazzi type of what are the consequences of this type of pursuit and let‘s face it.  Right now Michael Jackson, for all intent and purposes, is a hunted person, being hunted by the media.  And they will take every opportunity they can to get a picture of him in some type of way with his kids or without his kids, doing something that they can sell to the media. 

ABRAMS:  I‘ve got to tell you...

PFINGST:  His life is miserable. 

ABRAMS:  ... I think a lot of that is paparazzi, tabloid media. 

PFINGST:  Yes.

ABRAMS:  I mean you know look...

PFINGST:  Yes.

ABRAMS:  ... you know I certainly didn‘t order any helicopters to go over Michael Jackson—Michael, no helicopters from me, at least.  You know I‘m not going to—I have no—but you know I didn‘t send any over. 

Paul, Yale, Brian, stick around.  Coming up, was jail time too much for two parents who allowed their son to have a party at their house?  What about the fact that alcohol was served and what about the fact that one teen nearly died of alcohol poisoning?  The parents said they had no idea alcohol was being served.  We‘ll go live to their home where the mother is under house arrest. 

Plus, 140 high school students—get this—sent out to work on

street clean-up crews instead of attending class.  The school was behind it

·         accused of renting out its troubled students and pocketing the profits while the kids were supposed to be in school.

(COMMERCIAL BREAK)

(NEWSBREAK)

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

ABRAMS:  It was supposed to be a party for about 25 high school kids after a homecoming dance.  Laura and Bill Brunnett, parents of then 16-year-old Twinsburg, Ohio high school student Billy, said they thought it would be safer to have a post dance party at their house in a safe, controlled environment where the teens would be chaperoned.  Well the small gathering of Billy‘s friends turned into a full-blown house party with over 100 teens, the majority apparently uninvited. 

One girl, Heather McGowan, she was one of them.  At about 1:00 a.m. on October 12 last year, Heather, a 15-year-old classmate, began violently throwing up in the Brunnett‘s home.  She was heavily intoxicated.  But an ambulance was not immediately called for.  Laura Brunnett said she tried to sober Heather up on her own, giving her cold showers, changing her into clean clothes, bringing her out on the porch.  Mrs. Brunnett says she then called 911. 

And moments after emergency workers took Heather to the hospital, police arrested both parents, charging them with allowing underage people on their property with alcohol.  Laura Brunnett is now under house arrest, while her husband spends 30 days in jail.  When he‘s released on May 13, she begins her 30-day sentence. 

Laura Brunnett and her attorney, Doug King, join me now.  Thank you both very much for coming on the program.  We appreciate it. 

(CROSSTALK)

ABRAMS:  Mrs. Brunnett, let me start with you.  The—let me tell you what the D.A. says about this, and I‘m going to quote from it.

He says—quote—“There‘s no question the Brunnetts were aware alcohol was being consumed by juveniles.”

Is that true? 

LAURA BRUNNETT, MOM JAILED FOR HOSTING PARTY:  Well, according to all the kids, that‘s the statements that he got from the children.  So, of course, he‘s going to be saying that, because that‘s what they‘re telling them.  But as for me seeing anyone literally taking—you know drinking a beer, I never saw that. 

ABRAMS:  Did you know that they were probably going to be drinking liquor at this party? 

BRUNNETT:  I was hoping that wouldn‘t happen.  I mean you know how teenagers are.  I was hoping that wouldn‘t have been the case. 

ABRAMS:  Did you do anything to enforce it?  Meaning, did you walk around?  Did you look at what people were drinking, et cetera? 

BRUNNETT:  Yes, yes.  We were monitoring.  My husband was out there monitoring, and I was in the house monitoring.  And I did say numerous times you guys had better not be drinking anything. 

ABRAMS:  So how do you think that they ended up drinking so much? 

BRUNNETT:  Well, they probably—they‘d come and go.  They‘d go out to their cars.  They‘d drive around.  They‘d come back.  They‘d go out to the lake.  And it was hidden.  They just—they‘re just good at hiding stuff.  And when a parent came around, of course they‘re not going to show it in plain sight.  Of course they‘re going to hide it. 

ABRAMS:  Before I get into some of the legal issues, one of the other

·         the most serious allegations was this issue about calling 911.  And this is a statement from the judge in the case.  You were debating back and forth when to call 911.  There should have been no asking her friends when to call.  I don‘t know whether to believe you were trying to protect Heather or yourselves, I don‘t think you‘ve taken responsibility.  Your response.

BRUNNETT:  Yes.  Well, we didn‘t—we really didn‘t think she was that bad in the beginning, so, of course, that‘s why we were debating, you know was she really that bad?  I mean was she going to be OK?  Can we you know wake her up with a shower and what not?  And then towards you know 15 minutes or so, we did decide that she was getting worse by her pulse and her facial color and her—she did have a bowel movement, so, you know, once we assessed the situation, we decided, you know, it was time to call 911. 

ABRAMS:  Did it take an hour and a half?  I mean what about this business about taking cell phones away from kids so they wouldn‘t call 911? 

BRUNNETT:  That is untrue.  And it did not take no hour and a half. 

ABRAMS:  Mr. King, I‘m going to talk more about the legal issues in a moment.  But if the prosecutors—and again I don‘t know the facts, I‘m just basing it on what the prosecutor said.  If the prosecutor‘s case—if they were able to get all these witnesses who say, yes, look, the parents definitely knew, they knew.  And you know Ms. Brunnett is not saying we had absolutely no idea.  She‘s saying she was hoping that no one was drinking and they—you know maybe the kids hid it and stuff.  I mean is this really an unfair prosecution and an unfair sentence? 

DOUGLAS KING, ATTORNEY FOR THE BRUNNETTS:  With regard to the prosecutor and his involvement, he‘s pragmatic and fair.  The overwhelming majority of the invited guests to the party confirmed that they weren‘t intoxicated.  They weren‘t drinking.  Even Heather McGowan in her written description affirms that the Brunnetts provided alcohol to no one, quite the contrary.

The whole context for the party was to make it a safe alternative to driving around in their cars and drinking beer after homecoming, and that was the goal and that was the whole basis for the party.  When, you know, 50 or more uninvited guests show up then they did what they could to make the best out of a bad situation.  Had only the 20 invited guests shown up...

ABRAMS:  Yes.

KING:   ... it would have been just fine. 

ABRAMS:  All right.  Let me take a quick break here.  When we come—

I want to ask the question both to you and to our panel, what is the legal obligation of the parents if additional guests show up?  I don‘t think anyone‘s questioning the fact that uninvited guests came to this party.  But do the parents still have an obligation to make sure that those uninvited guests who are kids aren‘t getting drunk?  When we come back, our legal panel will weigh in on this. 

And later, instead of learning English, Math and Science, 140 Florida students allegedly learned how to clean up garbage while the school pocketed the profits.  Part of their road crew salary.  That‘s right.  The prosecutor filed charges against the school for sending the kids out and falsifying the attendance records.  This is unbelievable.  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  Welcome back.  We‘re talking about an Ohio case where parents have been held criminally responsible after their son threw a party at their home where a teenage guest became so drunk that she suffered from alcohol poisoning.  The father, 44-year-old Bill Brunnett, is currently serving 30 days in jail.  His wife, Laura, currently under house arrest.  She will serve jail time upon her husband‘s release.  We have been talking about this case with Ms. Brunnett and her attorney, Mr. King. 

Let‘s get in our legal team here—former prosecutor and MSNBC analyst Paul Pfingst, criminal defense attorneys Yale Galanter and Brian Wice.  All right, Paul, what do you make of this case? 

PFINGST:  Well, first, I don‘t know whether this was a guilty plea or whether it was after a trial.  But I‘ve had to make this decision on a number of cases, and it‘s where do you draw the line?  I‘ve never had a parent come in and say after one of these parties that got out of hand that gee, I knew there was alcohol all the time and I turned my head and it didn‘t bother me.  Everybody denies. 

But the kids come in and said yes, everybody did know.  And so you have to make a call.  And in this case it seems as though the consensus among the kids, the courts, the prosecutors and the witnesses is whether the parents knew and the parents‘ actions after they found this girl horribly intoxicated seemed to support that view, and they should be held accountable for that.  They can‘t provide alcohol to minors...

ABRAMS:  But they‘re not providing...

PFINGST:  ... because in this case someone almost died. 

ABRAMS:  Wait.  But no one‘s claiming that they provided the alcohol to the minors, not that I know of.  The only—right Mr. King, isn‘t that correct, that no one is alleging that? 

KING:  Absolutely.  It‘s not alleged.  They‘re not charged with that. 

ABRAMS:  Right.  OK. 

KING:  It didn‘t happen. 

ABRAMS:  Right.  OK.  So, Paul, there‘s no allegation here that they actually served alcohol to anybody.  The allegation is that they should have known.  What is the legal obligation with regard to all these uninvited guests?  And Mr. King makes the point that, look, the kids who were invited behaved.  All the kids who weren‘t invited didn‘t behave.  But, once you have a party and the people are at your house, the legal obligation still extends to the people who showed up, no... 

PFINGST:  No.  No, generally not.  The uninvited guests come at their own risk.  At some point, however...

ABRAMS:  Even kids? 

PFINGST:  Even kids.  Because at some point, however, if the parents or the supervisors there accept them and don‘t ask them to leave, then they stop being uninvited guests and start becoming regular guests. 

KING:  Take a look at the facts of this case.  Heather McGowan was an uninvited guest.  The first time the Brunnetts became aware of her was when Heather‘s friends, figuring they couldn‘t take care of her needs, came up and informed Laura that there‘s a gal in distress down there...

(CROSSTALK)

KING:  Laura goes down to the basement and...

(CROSSTALK)

KING:  ... takes care of her the best she could. 

PFINGST:  Did the family here plead guilty or was there a trial and they were found guilty? 

KING:  No contest plea with clear indication as to what the disposition was going to be and that was... 

PFINGST:  Well, if...

(CROSSTALK)

PFINGST:  ... the parents pled guilty to this offense, Dan, then I think we have to assume that they did know.  If they wanted to have a trial to prove that they did not know and they were not on notice, they could have done that. 

(CROSSTALK)

KING:  Take a look at the burden of proof.  In Ohio you prove two things.  You owned or controlled a piece of property.  Children underage consumed alcohol on the premises.  That‘s it.  That‘s what you prove.  You don‘t have to prove that you knew there was alcohol there or that they consumed it or that you provided it.  Essentially it‘s the equivalent of a strict liability standard. 

ABRAMS:  And so what about...

KING:  And the paradox is...

ABRAMS:  I‘m sorry Mr. King.  Go ahead.

KING:  ... do you put kids in the car and say don‘t come to my house, you drive around after homecoming and do whatever you‘re going to do, and the big fear is to eliminate drunk driving.  I mean that‘s the nexus...

ABRAMS:  Let me ask...

KING:  ... or do you provide a safe alternative? 

ABRAMS:  Let me ask Brian Wice this question.  Brian, I mean look, it doesn‘t sound like this case was quite what I‘m about to propose.  Because it sounds like if they pled guilty that it was you know a bit more severe than that.  But what about—look I remember when I was 13, 14, there were always the kids who at any party would sneak in alcohol in their jacket or whatever.  They‘d go into the bathroom.  Some of the other kids might not even know that they were drinking.  It sounds like in Ohio the parents might still be liable. 

WICE:  Well, and I think that‘s true.  But I think ultimately it‘s a reasonable person standard, which the law imposes on mom and dad.  What would a reasonable mom and dad have done in that situation?  And if you‘re going to accept these kids into your home, whether invited or not, you have a duty to walk around and exercise reasonable and ordinary care to make sure that these kids aren‘t lit.  And I think the problem in this case, quite frankly, is the consciousness of guilt that you can draw from the fact that the parents didn‘t immediately call 911.  In a situation like that you err on the side of caution.  You pick up the phone and you say I‘ve got a sick kid...

ABRAMS:  I‘ve got to tell you Brian, that part of it bothers me a lot less.  Because I could see, you know, the mother not knowing that this child is like totally sick to the point where they need to call 911, you know, the reaction many people have to finding a drunk person is you try and sober them up a little bit, not knowing if they have alcohol poisoning.  I‘m much more disturbed about the fact that it doesn‘t sound to me like the parents were surprised that there was alcohol being served.  It sounds like they almost kind of knew it.  I‘m going to give Ms. Brunnett the final word on the story and then we‘ve got to wrap it up.  Anything you want to say, Ms. Brunnett... 

BRUNNETT:  Yes, I‘d like to say that about the sentencing that we did get, they really don‘t seem to care that my husband has a heart condition and that he‘s been admitted to the hospital with chest pains.  We‘ve done everything to try and get him on a work release, so we don‘t lose our house.  We‘ve—he‘s already lost his job.  We are paying the consequences and I‘ll tell you what...

ABRAMS:  Yes.

BRUNNETT:  ... it‘s really, really hard for me to try and keep everything intact here. 

ABRAMS:  Laura Brunnett, Douglas King, thanks a lot.  Appreciate your time. 

KING:  Thank you.

BRUNNETT:  Thank you.

ABRAMS:  Paul, Yale and Brian, thank you as well. 

Coming up, a Florida charter school charged with pocketing cash for renting out its troubled students to clean up area streets instead of going to class.  We‘ll talk to the man who prosecuted the case.

(COMMERCIAL BREAK)

ABRAMS:  All right, get this.  You send your kids to school.  They get a good attendance record.  And then you find out that instead of going to class, they were hired out to work on state road projects.  One school in Florida is accused of doing just that.  Prosecutors say the Escombra Charter School (ph) signed an agreement with the Florida Department of Transportation to provide work crews.  Believe it or not, that part isn‘t illegal.  But according to the criminal complaint, the school, ECS, was paid $16.25 for each hour the students worked. 

The school paid the supervisor $11 an hour and paid the students $10 an hour, profiting $40,000 a year from student labor.  Prosecutors also say to keep the scam going the principal falsified school and attendance records.  The school officers are charged with criminal fraud and now the students are expected to make up the missed class work after school. 

I‘m joined by Russell Edgar, assistant state attorney on this case.  Mr. Edgar, thank you very much for coming on the program.  This is unbelievable.  This is a taxpayer-funded school.  And first of all, it is legal for them to be renting out their troubled kids to work on cleaning up the highways? 

RUSSELL EDGAR, ASSISTANT STATE ATTORNEY:  Well, I filed charges alleging that the school falsely represented the students were in attendance and receiving instruction, as required under their agreement.  But while they were supposed to be in class receiving instruction, they were taken out and used to clean holding ponds and cut grass along our roadways, and pursuant to a DOT, Department of Transportation contract.  That‘s the allegation.  And what they were doing was signing in, in the mornings and then leaving four days a week in crews of approximately eight children and staying throughout the whole day, and at the end of about 15 weeks they would be then returned back into the general population of the school.  And that is what mystified us. 

ABRAMS:  Yes. 

EDGAR:  (UNINTELLIGIBLE)

ABRAMS:  Well, let me ask you this.  Didn‘t the parents—didn‘t any of the parents call and say, hey, you know, Johnny just came home and he was a little bit dirty because he had been cleaning ponds all day.

EDGAR:  Well, these are at-risk children, and we‘re very concerned about that because typically this kind of work had been usually done by convict labor.

ABRAMS:  Yes.

EDGAR:  We‘re very concerned about this.  One of the teachers, one of the former teachers, complained about some things to the school and we noted that this particular arrangement was going on, and we looked into it and after several months came to the conclusion that we needed to take action.  So at this point I filed charges against the school.  We are now considering whether or not to proceed with further charges, and we‘ll make that decision fairly soon. 

ABRAMS:  And when you say further charges, you‘re talking about against principals and individuals...

EDGAR:  Against...

ABRAMS:  ... who may have been involved, right.

EDGAR:  Against individuals. 

ABRAMS:  Right. 

EDGAR:  It‘s not unusual to charge corporate entities. 

ABRAMS:  Yes, I understand.

EDGAR:  The school is a corporation. 

ABRAMS:  All right.  Let me ask is it—but is it legal just for the school—let‘s say the school hadn‘t lied about the attendance, all right?  Let‘s say that they had told the truth and they hadn‘t falsified records.  Is it legal for a school to hire out its students to effectively do work, as you point out, that‘s generally left for convicts? 

EDGAR:  Well, I hope I don‘t have to answer that question now or ever.  You know we pay to educate children in Florida, the taxpayers do.  We also pay, apparently, to have the roadways cleaned.  But I don‘t think we should be paying twice to have it done by the same people. 

ABRAMS:  I just don‘t think kids should be assigned—if you want to hire them after work to clean up the roads, that‘s fine.  But the idea of the school being involved in effectively rent-a-kid for cleaning up the highways is just shocking. 

EDGAR:  I would hope we could find some better method to equip our children to deal with society and make this a better place to live for all of us. 

ABRAMS:  All right.  Well, Mr. Edgar, it sounds like you uncovered a big scam here.  And you know, we‘ll look forward to following this case.  I appreciate you coming on the program. 

EDGAR:  Well, of course, these are allegations, and they‘ve yet to be proved...

ABRAMS:  All right.

EDGAR:  ... and we hope...

ABRAMS:  But I‘m assuming you wouldn‘t have filed the charges unless you believed it.  So...

EDGAR:  We certify that the charges are based on facts that we‘ve received.

ABRAMS:  Right.  All right.  Mr. Edgar, thanks a lot for taking the time.

EDGAR:  You‘re welcome.

ABRAMS:  Coming up, Patrick Tillman, a former NFL star who gave up a $3.6 million dollar contract to join the military elite special forces died in combat in Afghanistan.  Why I say the word hero does not do him justice.  It‘s my “Closing Argument”...

(COMMERCIAL BREAK)

ABRAMS:  Last night I asked what‘s wrong with having our legal system not only viewed through the eyes of the defendant, but also through the eyes of the victims, new legislation, but some of you say it‘s not fair to the defendant.  My response coming up.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—the combat death of Army Ranger and former NFL star Pat Tillman, who died while searching for al Qaeda terrorists in the mountains on the Afghanistan/Pakistan border.  What do you call a 27-year-old who gives up a $3.6 million NFL contract to make 18,000 a year as an Army Ranger, risking his life and serving his country?  A football star so affected by September 11 that he chose to join his brother in combat overseas because he wanted to—quote—“pay back the country for the comfortable life he had led”, a man who shunned any media coverage of his enlistment because he just wanted to be treated like everyone else. 

The term hero I don‘t think does him justice.  Good Samaritans are often described as heroes.  A person who helps another out of harm‘s way, taking a stranger to the hospital or helping pull someone off of subway tracks.  Those are wonderful acts, but they don‘t involve the same level of premeditated selflessness that Pat Tillman showed by giving up one of the most sought after careers to risk his life for his country.  It‘s been a long time since a star athlete at the peak of his career chose to give up so much to head into combat for this nation.  It‘s difficult to think of the word that describes that kind of commitment. 

That doesn‘t make him any more courageous than our other patriotic soldiers, but there‘s something particularly striking about his willingness to give up the good life, particularly in our society that sometimes seems to value celebrity in sports over everything else.  I guess for now, the term American hero will just have to do.  I‘ll bet Pat Tillman would have said that‘s more than enough. 

All right, I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  Last night we told about the U.S. Senate passing a measure to give more rights to federal crime victims.  Rachel King, an attorney for the ACLU was on the program saying—quote—“some provisions will come up against the rights of the accused.”  I asked what‘s wrong with finally having our justice system not only viewed through the eyes of the defendants, but also through the eyes of the victim—mixed opinion on this. 

From Hampton, Virginia, William Scott Orthman, “I think you‘ve got the victims‘ rights issue all wrong.  There is something basically wrong with enshrining rights for the victim.  It goes against the basic principles which our nation were founded upon.  The criminal justice system is supposed to endure that the defendant receives a fair trial.  Victims are not being put into jeopardy of their freedoms by the state.  Defendants are.  That‘s why their rights are protected by our Constitution.”

Mr. Orthman, no one is suggesting that giving victims the same rights as someone who is on trial facing the loss of his or her freedom.  But there‘s nothing in this law that effectively restricts the rights of the defendants.  I know the idea of giving rights to victims is scary to some.  But I think you‘re wrong that our founding fathers would have had any problem with this law. 

Jess Woodward from Winston-Salem.  “I used to be a member of the ACLU.  ACLU representatives like Rachel King are but one reason that I don‘t belong any more.  I agree with you that our criminal justice system looks at crime from the defendant‘s point of view.  Rachel King did nothing but confuse the issues.”

Lauren Cook (ph) from Iowa City, Iowa says she was—quote—

“disappointed in me.”  Referring to Ms. King, she says she was making valid points and if you gave her a minute to speak, maybe you could have learned something.  Unfortunately, you were too busy interrupting her.  I wish I could have been able to hear more of what she had to say.”

The problem was that she wasn‘t answering any of my questions and just trying to cloud the issues. 

But Shannon Colledge from Raymore (ph), Montana got it.  “Rachel King spoke over you and would not let you get a word in edgewise for what seemed like forever.”

Also last night, the FCC ruling that NBC and U2‘s lead singer Bono violated FCC policy for saying the “F” word at the live broadcast of the 2000 Golden Globes to qualify the word brilliant.  And chairman Michael Powell telling Convention of Broadcasters this week he‘d like to extend the commission‘s power to cover cable.  I said the FCC is going too far. 

Lisa Gianardi from Albuquerque, New Mexico agrees.  “I am a disabled woman with serious injuries that keep me from working.  My only entertainment is TV.  I am paying good money to watch the violence and gore of “The Sopranos” and hear every curse word.”

Dan Smart from Waldorf, Maryland.  “As a Christian man I find TV has taken things a little too far, but I exercise self control and don‘t watch what offends me.  I don‘t need our federal government to tell me what is offensive or not offensive.”

John asks, “If they‘re going to fine Bono for a year old mistake, are they going to fine President Bush for calling that reporter a world class “a-hole” during the 2000 election?”  Good one, John. 

From Miami Beach, Florida, Michael Kirwan.  “Must every aspect of popular entertainment be child friendly?  The hypocrisy of these do-gooders is only outstripped by their stupidity.”

Paul Foust from Marino Valley, California.  “If they are including cable channels, then more power to them.  The public is finally taking back the airwaves.”

Finally, a man identifying himself as Stingfellow Jungwirth from Rohnert Park, California writes, It‘s 6:15 p.m. Eastern.  Quote—“I enjoyed your piece on the FCC crackdown on your April 23 show.”  And then he goes on to weigh in on the topic.   Wait a minute, Mr. Jungwirth.  We started our segment at 6:45, half an hour after you wrote your note.  You didn‘t really see our coverage then.

Have a good weekend.

END   

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