'The Abrams Report' for May 20

May 21, 2004, 1:22 PM UTC

Guests: Neal Puckett, John Clerici, Chip Babcock, Said Arikat, Mercedes Colwin, William Portanova, Magic Johnson

DAN ABRAMS, HOST: Coming up, the lower ranking soldiers accused in the Iraqi prison abuse scandal may be just the beginning. How high will it go?

(BEGIN VIDEOTAPE)

ABRAMS (voice-over): General Janis Karpinski was supposed to be in charge of Iraqi military prisons. Now she remains on the hot seat. We will talk to her attorney.

Plus, many in the Arab media complaining about no camera in the courtroom for the Abu Ghraib courts-martial. Wouldn‘t it be helpful to show the world American justice at work?

And basketball‘s Magic Johnson joins to us talk about everything from Kobe Bryant to Michael Jackson, to his health.

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS: Hi everyone. First up on the docket tonight on Wednesday the first court-martial and conviction in the Iraq prison abuse scandal. A low ranking Specialist Jeremy Sivits demoted and sentenced to a year in the brig. And so far of the seven soldiers actually charged in the case, the highest ranking a staff sergeant. But what about the officers in command in the months when much of the alleged abuse took place?

Major General Antonio Taguba, who wrote the Army‘s report on the scandal, says Brigadier General Janis Karpinski, commander of the 800^th Military Police Brigade was responsible for overseeing the prisons. But General Karpinski insists that while she was responsible for the soldiers under her command she never ordered or would have agreed to any abuses.

(BEGIN VIDEO CLIP)

BRIG. GEN. JANIS KARPINSKI, U.S. ARMY: I was truly sickened by it. I was—it was worse than I could have ever imagined. So, is there a shared responsibility? Did people fail at many levels or did they intentionally not include me so my defenses were down? And that is why the term scapegoat I think has been tossed around because we were exclusively Reserve and National Guard.

(END VIDEO CLIP)

ABRAMS: Furthermore, she says she effectively ceded control of Abu Ghraib to military intelligence officers and civilian contractors who interrogated the prisoners.

And today perhaps some corroboration for General Karpinski. A military intelligence sergeant who served at Abu Ghraib, though not as an interrogator, told “The Washington Post” that the interrogators directed the abuse. Interrogators not under General Karpinski‘s command.

Joining me now is General Janis Karpinski‘s attorney Neal Puckett.

Mr. Puckett, thank you very much for taking the time.

NEAL PUCKETT, MILITARY DEFENSE ATTORNEY: Sure Dan.

ABRAMS: All right, just give us the overview first as to her position. I mean is her position that she simply wasn‘t in charge at all of the prison at the time these things happened?

PUCKETT: That is essentially correct, Dan. What the situation was, she—control of the prison was taken from her on the 19^th of November. Even before that, though, all interrogation activities which is now where we know and when we know that all of these things happened were at all times under the secret control of the military intelligence folks and her military police were to never be involved in interrogation processes.

ABRAMS: Because what I was going to ask you about, because as you know in the Taguba report it talks about abuses from October to December and let‘s even assume for a moment that she does cede control in the middle of November. Is she technically then still responsible as the commanding officer of the prison?

PUCKETT: No. She was the commanding officer of the prison even before November and in October like you‘re talking about, but she was never in command of the military intelligence operation in any respect. And that includes the interrogation. So to the extent that her military policemen were co-opted by the military intelligence seniors there, they were responsible for what the military policemen actually did.

ABRAMS: But how does it work? I mean as a practical matter when someone is the general in charge of the guards there, does that general have no oversight over the other interrogators or people who are doing interrogations at the prison where she is in charge?

PUCKETT: That‘s what is a little bit difficult to understand Dan. No, those military policemen still belong to her administratively but tactically, that is on a day-to-day basis after November 19 they were under the control of the military intelligence brigade commander. But before that, yes, they were in her charge. However, in any military situation a commander is responsible really for the foreseeable consequences of what his troops or her troops may or may not do. In this case we see this behavior was not even foreseeable and she never had any indications from her subordinates coming up to her level that anything like this was remotely even possible.

ABRAMS: Yes, let me ask you—let me read you part of the Taguba report. It says there‘s no evidence that Brigadier General Karpinski ever attempted to remind military police soldiers of the requirements of the Geneva Conventions. It goes on and says what I found, this is Taguba, found particularly disturbing in her testimony was her complete unwillingness to either understand or accept that many of the problems inherent in the 800^th M.P. Brigade were caused or exacerbated by poor leadership.

I mean it doesn‘t sound like General Taguba is in any way suggesting that she ordered it much less knew about it. But it sounds like what he is saying is there was negligence here on the part of General Karpinski.

PUCKETT: Dan, there‘s a couple of important things to understand. General Taguba was sent out on a mission to look into the failures of the 800^th M.P. Brigade. He wasn‘t sent out, like he should have been, to look into all circumstances surrounding it and that‘s a failure of his report. Second thing you need to know is that that report was commissioned by Lieutenant General McKiernan, who worked for General Sanchez and Lieutenant General McKiernan rejected General Taguba‘s recommendations and conclusions as to General Karpinski and he did not reprimand her, did not relieve her, did not even suspend her...

ABRAMS: Well...

PUCKETT: ... and sent her back to the states.

ABRAMS: And that‘s one of the big issues. I mean because the Taguba report, as you know, recommended that General Karpinski be relieved from command and given a general officer memorandum of reprimand. And there seems to be some debate about whether she was effectively suspended or whether she voluntarily stepped down, correct?

PUCKETT: No, there‘s no debate about that at all. She was not suspended. She did not step down. Today as we sit here she is in full command of the 800^th M.P. Brigade.

ABRAMS: OK, because there have been some in the military that suggested that she is not any more. I mean, right...

PUCKETT: Well, they‘re just misinformed. She was never suspended, never relieved and she is still in command.

ABRAMS: Do you think she‘s going to be charged? I‘m not asking whether you think she should be charged because I know that you believe the answer to that is no, but do you think she‘s going to be charged with anything?

PUCKETT: Absolutely not, Dan, and that‘s because there‘s no evidence of any wrongdoing on her part. There would have to be—charge, you understand as an attorney, requires evidence that a crime has been committed...

ABRAMS: Right.

PUCKETT: ... and there‘s no evidence—I mean the worst that could probably be said about her is that perhaps she should have been patrolling every one of her prisons every night or having people do that to make sure these things weren‘t happening. But that would never amount to a crime.

ABRAMS: Is it a crime in the military—and this is a broader question—is it a crime in the military for a commander, someone who is a general, to be negligent, for example? Let‘s assume for a moment the Taguba report facts, which suggests a level of negligence. Is that a crime under military law?

PUCKETT: Well, there are negligence types of crimes, but there‘s nothing connected with her being in command of the 800^th M.P. Brigade, which would relate to a crime under the uniform code of military justice. The closest one that would probably apply, could possibly apply would be dereliction of duty. Then there would be a proof of a duty to have affirmatively prevented this activity. But once again, remember Dan, although commanders are responsible for everything their troops do, the unforeseeable things like if one of the troops commits murder that does not mean the commander is also responsible for the murder. That‘s unforeseeable.

ABRAMS: Neal Puckett, thank you very much for taking the time. We appreciate it.

PUCKETT: Thank you Dan.

ABRAMS: We want to bring you another update in the case of PFC. Lynndie England whose face has sort of come to symbolize the abuse at Abu Ghraib. Remember, her attorney, Giorgio Ra‘Shadd, came on the show and after I attempted to have him discuss the issues in this case instead of broad constitutional principles, he got up and walked out in the middle of the interview. Last week we told you that Ra‘Shadd could lose his law license when he goes to trial in September accused of mingling client money with his own and failing to return $12,000 to the daughters of a dead woman.

Well in the past couple of hours The Associated Press reports that Giorgio Ra‘Shadd has been fired. They say England‘s family attorney was concerned about the accusations. Maybe the family attorney also saw Ra‘Shadd on this program.

Coming up, with some in the Arab world calling for television cameras in the courts-martial of those accused of abusing Iraqi prisoners, is it time to televise these proceedings in Iraq? We will have a debate.

Plus, the Scott Peterson murder trial jury selection, get this, almost over. We will get a live report.

And Magic Johnson has got a lot to say about Kobe Bryant and Michael Jackson. He joins us.

Your e-mails abramsreport@msnbc.com. Please include your name and where you‘re writing from. I respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS: Coming up, should the world get to see the courts-martial in Iraq? No television camera is permitted in the courtroom. Good idea? We‘ll debate.

(COMMERCIAL BREAK)

ABRAMS: We are back. The Defense Department has promised to bring justice to the alleged victims from the Abu Ghraib prison, but many Iraqis protesting outside of the court-martial of Specialist Jeremy Sivits. Remember, he was the first member of the military unit at the center of the scandal to face trial. As is customary in military trials this court-martial was closed to the public. But 30 journalists including some from Arab news outlets were allowed to sit inside the courtroom and an overflow room accommodated 200 other journalists.

The protesters say Wednesday‘s trial should have been televised. They said the court-martial soldiers should have been tried in front of detainees and other Iraqis to show them that they had rights and that justice was being served. Is the argument here even more compelling than you know the Kobe Bryant case where the media lobbied hard for a camera in the courtroom when Bryant pled not guilty earlier this month or the decision to televise high profile cases like O.J. Simpson or Jayson Williams.

Isn‘t this case—shouldn‘t it be different? The Defense Department has promised justice will be served for the prisoners at Abu Ghraib. Do you think maybe these courts-martial are a perfect opportunity to show Iraqis what American justice is all about?

Joining me to debate is media attorney Chip Babcock, former Air Force JAG attorney John Clerici and correspondent and bureau chief for the Arab newspaper “Alquds”, Said Arikat. Thank you all for coming on the program. Appreciate it.

All right, Mr. Clerici, let me start with you. Lay out the argument for not televising these courts-martial.

JOHN CLERICI, FORMER AIR FORCE JAG: Well thank you Dan. It‘s become almost cliche in the post O.J. Simpson era that cameras leave attorneys, judges, jurors for that matter to become actors. We saw that in the recent trial up in New York with the Martha Stewart and Tyco trial. In the...

ABRAMS: There were no cameras there. There were no...

CLERICI: No, there were no cameras. You‘re correct. But in O.J.

Simpson we have Lance Ito becoming a celebrity. It‘s become almost cliche. We‘ve also seen as late as yesterday with the 9/11 commission where you put a fact-finding commission in front of a camera the people involved in that commission play to the cameras. They are not searching for the truth necessarily. They‘re searching for publicity...

ABRAMS: But see those—all right, those arguments are always the ones that are thrown out. I don‘t happen to agree with them, but let‘s just assume them for a moment. Even if some of that is true, you would think in a military tribunal where you‘re not dealing with an ordinary jury, you‘re dealing with officers serving as the jurors, that there simply wouldn‘t be as much concern when you‘re talking about people who are reporting to people above them that somehow military lawyers are going to play to the cameras.

CLERICI: Absolutely, Dan, precisely the opposite. These people have volunteered to serve this country to put their lives at risk. When they walk into that courtroom they are wearing a uniform and their names are on their uniform—the jurors, the judge and even the defendant. The defendant is certainly innocent until proven guilty and to make a spectacle out of that person in front of the world is just plain wrong. The safety and security of those troops that are serving in Iraq depends to some extent on their anonymity. That‘s why we don‘t necessarily put soldier‘s last names in television commentary when we‘re reporting on them...

ABRAMS: Chip...

CLERICI: ...what‘s even more important when they‘re sitting there judging the guilt or innocence of these people.

ABRAMS: I apologize for interrupting you. Chip Babcock, I would think there would be an easy way to protect that. I mean is that a persuasive argument to you?

CHIP BABCOCK, MEDIA ATTORNEY: It‘s not to me, Dan. There are obviously technological ways to protect that if that is the problem. But the point is you‘ve got over 30 journalists in the courtroom who presumably can report whatever they see and they can see those things and you‘ve got 200 journalists watching it on television in another room.

This—if the military has an interest in showing the world that we are going to bring people to justice in a fair proceeding they ought to want to televise it. It was pictures that brought this scandal to world attention. It will be pictures by the way of televised proceedings that will convince the world that we are bringing people to justice in a fair and honest way.

ABRAMS: You know Chip, you‘ve done a lot of high profile cases including Oprah Winfrey and others. Have you found in the high profile cases that have been televised that you have been involved in or witnessed that—because I have to tell you my experience has been that the lawyers, after the first day, forget that the camera is actually there.

BABCOCK: Yes, that‘s true. I tried a case here in Houston for eight weeks that was on Court TV every day, gavel-to-gavel coverage and I forgot about—I had plenty of things to worry about in that trial and the camera was the least of them. And I don‘t think anybody involved in that case, any of the witnesses, any of the other lawyers, my clients, the judge, thought a thing about the camera after the first few minutes in the trial.

ABRAMS: Mr. Arikat, some in the Arab media in particular, I mean we saw the protests, but some, for example, at Al-Jazeera have been suggesting, you know making implications that you know there should be a camera inside the courtroom. And yet they have a reporter inside the courtroom.

UNIDENTIFIED MALE: Right.

ABRAMS: It sounds like they are saying our reporter can‘t really report to us what is happening in the courtroom adequately.

SAID ARIKAT, “ALQUDS DAILY”: Well, they can‘t. And you know courts-martial are not—customarily are not televised and that‘s really in step with military law. But because—Dan, because of the stakes in this particular case, the stakes are so high for the image of the United States and because in the spirit of U.S. officials pronouncements from the president on down that we will show the world, we will show the Iraqis what kind of American justice we have, I think they should have made an exception in this case.

I think you would have probably brought closure and I agree with the notion completely that pictures broke this case and I think pictures would probably brought it to closure. I think it would have been a lot wiser considering there were no tape recorders and there were you know 30 people, one-third were Arab journalists and so on. So I think in this particular case it would have been wiser to televise it.

ABRAMS: Does the Arab public not believe, when the Al-Jazeera reporter comes out—I guess the Al-Jazeera reporter is going to you know maybe put a spin on exactly what happened in terms of how he‘s reporting it, but is the concern that the public isn‘t going to believe that person as to what actually happened? Because I assume that there‘s a lot of distrust in that region of the media because they haven‘t had free media.

ARIKAT: No, Dan, that‘s not the case at all. I think what happens, you have an absence of the drama of the courtroom, the absence of the drama of American justice in action. Plus, there were events that really have eclipsed the trial and what was going on. You know people went out and said that really was a light sentence. I think if we had a drama of the courtroom it would have showed what kind of proceedings went on, what kind of justice America holds, especially when America is trying to introduce the Iraqis into democracy and transparency and the rule of law. So I think that would have been a great opportunity and it‘s a missed opportunity.

ABRAMS: Mr. Clerici, “A”, has there ever been exceptions that you know of where a camera has been allowed in? And “B”, you know maybe even if the general rules have said no camera, period, that this might be the case to make the exception.

CLERICI: I‘m aware of no exception, Dan, and this would probably be the one case not to make such an exception. What happens if there‘s an acquittal? What happens if these soldiers go before this jury of officers and superiors, recognize that a military jury is not a jury of common people. It‘s a jury of your superiors. Are the Arab community or the public at large going to appreciate and understand that when there‘s an acquittal or if these people do justice. The purpose of these trials is not as the gentleman before me said to create a courtroom drama. It is to do justice and anything that undermines doing that justice is just plain wrong in a military courtroom.

ABRAMS: Chip, what do you make of that?

BABCOCK: If the military is proud of their justice system, which they should be, I don‘t understand why they wouldn‘t want to broadcast it to the world in this circumstance when the world is watching. There is a camera in the courtroom. It‘s being broadcast to a room with 200 people in it. I don‘t understand why they wouldn‘t want to show it to the world.

ABRAMS: What about the argument that Mr. Clerici makes that, you know it‘s a fair one, that if there‘s an acquittal here that you know you‘ll have, you‘ll just make the situation worse and that in a way than in this case more than any other there‘s so much pressure to convict that showing it to the world will almost demand a conviction.

BABCOCK: Well, if there‘s an acquittal, the military should want it even more than if there‘s a guilty verdict. There‘s going to be a certain number of, percentage of people in the world who are never going to believe that our people were fairly tried if there‘s an acquittal.

ABRAMS: Yes.

BABCOCK: But there are people that we reach out to, the fair-minded people of the world that if they see the proceedings, the pictures and the sounds, and judge for themselves as opposed to some guy doing a stand-up with a dust storm blowing his toupee off his head outside the courtroom, that‘s the people we need to reach out to. That‘s the hope for the world...

ABRAMS: You know...

BABCOCK: ... and I don‘t understand why we wouldn‘t to show it to the world...

(CROSSTALK)

BABCOCK: ... and we are...

ABRAMS: And I‘ve got to say that I think that in the Rodney King case that the fact that that case was televised actually helped quell much of the protest even though they were acquitted in the initial trial.

All right, I‘ve got to wrap it up. Chip Babcock, John Clerici and Said Arikat, thanks a lot. Appreciate it.

BABCOCK: You bet Dan.

CLERICI: Thank you Dan.

ABRAMS: Coming up, we‘ll get a live report in the Scott Peterson trial where jury selection is wrapping up.

Plus, three teens accused of gang raping an unconscious 16-year-old girl and videotaping it.

(COMMERCIAL BREAK)

ABRAMS: Welcome back. Now to the Scott Peterson case where jury selection is almost over and opening statements said to be begin in less than two weeks. Our friend Edie Lambert from NBC affiliate KCRA is outside the courthouse.

Edie, are they really almost done?

(AUDIO GAP)

ABRAMS: OK—wait. I think we just got you Edie. All right, Edie...

EDIE LAMBERT, KCRA CORRESPONDENT: Can you hear me now?

ABRAMS: We didn‘t hear any of it. So, Edie Lambert from KCRA our NBC affiliate joins us now—Edie.

LAMBERT: And this is official take two.

ABRAMS: Yes, exactly.

LAMBERT: Yes, actually we are just about here to the end of jury selection. They could be questioning potential jurors for another day or two, but it looks like they are going to be in very good shape at this point to seat the jury a week from today. As you mentioned, it has taken a long time to get here, more than two months. And I can show you exactly what they have gone through to get to this point. One thousand five hundred and seventy-two people filled out questionnaires. One thousand one hundred and twenty-five were dismissed immediately for hardship.

Four hundred and forty-seven people scheduled for individual questioning in court and of those, 74 people have qualified so far and they are questioning a few more people this afternoon. Now qualify means they can serve on a trial this long. They can vote for the death penalty and they say they can be fair. And one man dismissed from the jury pool today complimented the judge for being very careful about who he qualified.

(BEGIN VIDEO CLIP)

SEAN HOOVER, DISMISSED JUROR: He‘s making sure he can get people who can commit to being a juror on this trial. It‘s probably going to go five or longer months. And you know you can‘t have someone who is going to have to bail because it just makes things difficult. So, I think it‘s a smart move.

(END VIDEO CLIP)

LAMBERT: At this point Judge Delucchi does have enough people to seat the jury but he is trying to qualify a few extras just in case some of those folks have to drop out at the last minute. And in open court this week he said and Dan this is an exact quote, “come hell or high water, the opening statements in this case will start on June 1.”

I‘m Edie Lambert reporting live from Redwood City. Back to you.

ABRAMS: I will see you there in opening statements Edie. Thanks.

Coming up, defense attorneys for three teen boys accused of rape say the accuser was a willing participant even though prosecutors say the video recorded by the boy shows the 16-year-old girl unconscious.

And later Magic Johnson on Kobe Bryant‘s rape trial.

Your e-mails abramsreport@msnbc.com. I‘ll...

(COMMERCIAL BREAK)

ABRAMS: Coming up, basketball‘s Magic Johnson joins to us talk about everything from Kobe Bryant to Michael Jackson to his health. But first the headlines.

(NEWS BREAK)

ABRAMS: We have got some breaking news to report to you in connection with that Portland, Oregon lawyer taken into custody for questioning in connection with the Madrid bombing. Authorities had said that Brandon Mayfield‘s fingerprint was found on a bag left in a van by the bombers. Well now it appears that‘s far from certain and in the past few minutes we‘ve learned Mayfield has been released.

NBC‘s justice correspondent Pete Williams join us now with the story.

Hey Pete.

PETE WILLIAMS, NBC JUSTICE CORRESPONDENT: Dan, you‘ve talked about this case before on THE ABRAMS REPORT. He was released from custody shortly after 3:00 Pacific Time this afternoon. This followed several developments today. First of all, Spanish police put out a statement saying that exhaustive examination by Spanish authorities revealed that the partial fingerprints that were found on that blue plastic bag belonged to a man from Algeria. Now the Spanish statement did not explicitly say that ruled out Brandon Mayfield as the source of those fingerprints.

You‘re looking at a picture of him tonight speaking as he was released. They did not say that they explicitly ruled out his fingerprints, but that certainly was the implication. Now, last night law enforcement authorities here were saying that the FBI fingerprint analyst stood by their examination of the prints that they appeared to match fingerprints on file from Brandon Mayfield, fingerprints that were obtained when he was in military service. So there is something of a question here.

But obviously the fact that he has been released after he was held on what‘s called a material witness warrant, he was never actually charged with anything, indicates that U.S. authorities‘ confidence in this case is rapidly shrinking away. Now he said very little when tonight he was released Dan. He simply said that he‘s under a protective order, an order from the court that he can‘t talk about the case or his detention.

He simply thanked his family, said a few words, and then said a brief statement in Arabic because, of course, he did convert to Islam. He is a Muslim. He worked on legal defense or family law issue for one of the so-called “Portland Seven” and that was one of the—perhaps it may turn out to be coincidences in this case. But it is an interesting development. He has now been released from custody, Dan.

ABRAMS: Pete Williams, thanks very much for that report. Appreciate it.

In Orange County, California a young woman says she was raped by three teenage boys who taped the incident. She took the stand in a trial this week where the defendants could face up to 55 years behind bars. One of the boys on trial is the son of the assistant sheriff. He and two others are seen in—were seen in photos shown to the jury having sex with the accuser as she was apparently, apparently passed out on a pool table.

Prosecutors say the photos taken from the video of the incident show the boys sexually assaulting the young woman with a bottle, a pool cue and a lit cigarette, but defense attorneys paint a very different picture. They point to inconsistencies in her testimony and say the girl was an aspiring porn star who had consented to the sex. Friends of the victim told a private investigator that she was promiscuous and would have agreed to the sex acts.

KNBC‘s Vicki Vargas has more.

(BEGIN VIDEOTAPE)

VICKI VARGAS, KNBC CORRESPONDENT (voice-over): Jane Doe testified there was more than one videotape, that two or three days before the alleged rape her boyfriend, Keith Spann, brought a camera into a bedroom while they were having sex. The 18-year-old girl testified on July 4, 2002 he then showed that tape to a group of friends and asked her to watch.

I saw me on top of Keith, his hand around my back, she testified and he was filming. I couldn‘t watch it. It was gross.

In testimony the Rancho Cucamonga teenager said Assistant Sheriff Don Haidl came home that same night with his wife. She says they went into the bedroom at their Corona Del Mar house and weren‘t seen again. Jane Doe testified an hour later defendant Kyle Nachreiner tried to have sex with her in Haidl‘s swimming pool.

I was laughing. I was drunk. It was no big deal. Question - where were the others? Answer: Greg and Crystal, his girlfriend, were at the other end of the pool having sex.

No cameras were allowed in court during Jane Doe‘s testimony. She talked about drinking 10 shots of rum, then later smoking marijuana, which she said Greg Haidl had bought that night. Then she testified she and Haidl also had sex. She said that made Keith Spann jealous.

I know Greg got something, Spann said to her, so where is my fun for the night? I just turned over and started kissing him. I guess I felt I owed it to him.

UNIDENTIFIED MALE: It‘s our opinion that she‘s not been truthful about not remembering.

(END VIDEOTAPE)

ABRAMS: That was KNBC‘s Vicki Vargas. Yuck. So, how does this alleged victim‘s past play into this case and how—what do we make of this case?

Joining us now is former California state prosecutor Bill Portanova and criminal defense attorney Mercedes Colwin. All right, Mercedes, they‘ve got a lot of ammunition here for the defense (UNINTELLIGIBLE)?

MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY: Undoubtedly. I mean it‘s unbelievable that they are even prosecuting. In fact, initially she didn‘t want to prosecute. These were all boys that she had slept with. In any case that involves, that‘s—quote—unquote - “date rape” you have to go into the action surrounding and she‘s having sex less than 24 hours with two of the defendants.

The third defendant, Nachreiner, says I had sex with her too. And in the videotape the defense has set forth and said she looks like she is laughing. I mean this is just unbelievable that they are prosecuting these young boys for something that clearly has signs of consent thrown all over it.

ABRAMS: Mr. Portanova.

WILLIAM PORTANOVA, FMR. CALIFORNIA STATE PROSECUTOR: Well the problem in this case is you‘re dealing with a minor. She‘s 15 years old and she‘s passed out on a pool table while three guys are inserting objects into her body while she‘s clearly unconscious. Yes, maybe they had prior sexual experience with each other and yes, maybe she is promiscuous and maybe she smoked pot and drank beer that night. But an unconscious person, especially a minor, is not giving consent for anything.

(CROSSTALK)

PORTANOVA: And the idea that they videotaped it and then shared it with their friends speaks volumes about whether or not she did this on her own.

ABRAMS: She is—she was 16 at the time I believe...

COLWIN: She was 16 and all of them were around 16, 17 years old. I mean they were all the same age. So—but frankly, we are talking a quantum leap if you think that she was unconscious. I mean (UNINTELLIGIBLE) question of fact for the jury. Apparently she was laughing during that videotape. Someone who is unconscious is not going to be responding...

ABRAMS: Yes. Mr. Portanova, the biggest—I think one of the biggest problems the prosecutors have is that, for example, one of her friends tells an investigator that the alleged victim said she made references, said she‘s saying things like I don‘t know why they drugged me because I probably would—probably let them do it anyway with my consent without drugs. If she said that, does that necessarily mean not guilty?

PORTANOVA: No, it doesn‘t mean not guilty. This is a very dangerous area. What people might have done means nothing if, in fact, they are unconscious at the time you begin having sex with them. I hear the opposing counsel here saying that she was laughing and enjoying the sex during the videotape. My understanding is she appeared to be unconscious. None of us can really comment on it because only the jurors are going to see that tape. And the jurors themselves will make the right decision because they will gauge her behavior. And if in fact it was an unconscious passed out 16-year-old girl being abused by three men, laughing and inserting things into her body, the jury will see that and they‘ll convict.

ABRAMS: And Mercedes...

(CROSSTALK)

ABRAMS: ... as I said, the toughest thing I thought for the prosecutor—the toughest thing I think for the defense is you know if they can demonstrate that she was drugged and I don‘t know, you know, how they‘re—if they‘re going to be able to demonstrate that, I would think that would then be a tough point for the defense.

COLWIN: It would be a tough point. But there‘s no forensics. No one took a drug analysis of her because she didn‘t say anything to anyone. She didn‘t go to the authorities until many, many months later. So we don‘t know what her state was at that time. If she‘d gone to the authorities after, if she had gone to her parents, she would have had—gone through a rape kit examination where they would have taken blood, they would have determined if she had been under some—had some narcotic effect.

But we don‘t have any of that. We‘re going to have—credibility is the issue here. She has friends that are going to come forward and say she was extremely promiscuous. She wanted to be a porn star. This is something that she had envisioned that she wanted to do. She had sex with Spann and it was videotaped just a couple of days before this alleged incident. There was no objection there to that videotape...

ABRAMS: (UNINTELLIGIBLE)

COLWIN: ... so I think there‘s going to be serious problems...

(CROSSTALK)

COLWIN: ... and I don‘t think that there‘s going to be a conviction at the end.

ABRAMS: Aspiring porn star, I mean I think that sort of anyone who wants to be a porn star can to...

PORTANOVA: Well...

ABRAMS: ... a certain degree achieve that lofty goal. I‘m sorry...

PORTANOVA: Well...

ABRAMS: ... Mr. Portanova, very quickly, 10 seconds, final word.

PORTANOVA: Well, I just—I think the moral for anybody watching this program especially for the young people is stay away from the drugs and the cameras and stay away from the 16-year-old girls.

ABRAMS: All right. Bill and Mercedes, thanks a lot for...

COLWIN: Thank you.

ABRAMS: ... coming on. Appreciate it.

COLWIN: Thanks...

ABRAMS: Coming up, you ever wondered why a specific day is so important? My “Closing Argument”—what May 20 really means.

But up next, basketball great Magic Johnson weighs in on the Kobe Bryant case and how it‘s affecting the Lakers.

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ABRAMS: He is an NBA legend. His business portfolio now estimated at a cool $700 million. It includes more than 50 Starbucks stores, 12 movie theatres, two chain restaurants, his own clothing line. Who is it? None other than Earvin Magic Johnson, the former L.A. Laker point guard, played 13 seasons in the NBA, won five league titles, voted MVP three tiles.

Now he has teamed up with NASCAR. Magic looking to bring some diversity to the sport, encouraging African Americans, Hispanics and women to join the world of professional car racing. I got to talk to the NBA legend about his new endeavor, as well as and current L.A. Laker Kobe Bryant and friend Michael Jackson‘s legal troubles. But first Magic told me about his new role with NASCAR.

MAGIC JOHNSON, CO-CHAIR, NASCAR‘S DRIVE FOR DIVERSITY: What they don‘t know is about 25 percent minorities watch NASCAR too. They just haven‘t gone to the track itself. And so what I‘m going to try to do is educate them on the great programs that NASCAR already has in place that also minorities don‘t know about, which is a scholarship program where they have already over 100 minorities on scholarship. They also have an internship program where minorities can get a job in the summer.

They also have the urban youth drag racing program with—which is in Philly where they go out and (UNINTELLIGIBLE) see the stock cars, see the cars themselves. You know so, really they have a lot of great programs within minorities, but minorities don‘t know about the programs. And also they have a lot of minority drivers, which minorities also don‘t know about.

ABRAMS: So is the goal to educate minority watchers, fans of NASCAR or is also the goal to get more minorities who are trying to become drivers?

JOHNSON: I think the goal is to get more drivers, get more crewmembers, get also more vendors, get more suppliers. So you are talking about more jobs for minorities, period. But also you‘re talking about more drivers and crew pit members as well. And so, that‘s what we are talking about here, as well as more minorities on scholarship to go to college. So, those types of things we want more of and NASCAR wants more and that‘s what makes it so special.

ABRAMS: Let me ask you a little bit about the Kobe Bryant case. You know you obviously worked with the Lakers and how has this been as an experience for the team in having this hanging over the team?

JOHNSON: Well, I think that the team has handled the Kobe Bryant situation quite well. They have adjusted to him not being at practice or sometimes missing a game. But they have rallied behind Kobe. They have supported Kobe all season long. And I think they will continue to do so. And then Kobe himself has handled this situation quite well as well.

It has been taking a toll on him physical wise as well as mental wise because any time that your life is threatened in terms of he not knowing what‘s going to happen at trial, that‘s got to weigh on a young man. But I think he has handled it professionally very, very well. And let‘s not forget that this has changed two people‘s lives. It‘s changed Kobe‘s life and the young lady‘s life and we want to pray for both of them.

ABRAMS: Have there been any opponents who have sort of used it you know to sort of give him a hard time or on the court to rib him about it or anything like that?

JOHNSON: No, what we have to understand is the NBA is like a fraternity. It‘s like any other sport. They‘re going to be there to support him until they hear otherwise. And so, I think the whole league in terms of the players are supporting Kobe. They feel that he has been a good young man up until this point. And so, until he‘s found guilty, they will continue to support him.

ABRAMS: And I‘ve been just really stunned at how well it‘s turned out he‘s played after these court appearances. I mean the fact that (UNINTELLIGIBLE) the last three court appearances he‘s scored something like 36 points a game on the average after the court appearances. It‘s somewhat stunning, isn‘t it?

JOHNSON: Yes, it‘s been amazing. I tell you, he‘s—the way he has handled himself coming from Colorado, flying in the same day of the game and not getting there sometimes 20 minutes before the game, sometimes an hour before the game and still going out and scoring like you said 40 points or 30-something points, it‘s truly I think all of us are just amazed and can‘t really believe it. But that shows you the mental toughness that Kobe has. And he‘s a unique player and a unique individual.

ABRAMS: Let me ask you about another case that we follow, the Michael Jackson case. Do you—are you in contact at all with Michael Jackson?

JOHNSON: No, I haven‘t been in contact with Michael. I have talked to some of his family members but not Michael himself.

ABRAMS: And you had been, you had worked with him what, 10 years ago or something like that?

JOHNSON: Yes, yes, I worked with him. I have gone out on tour with the family when they had the victory tour. So I know them quite well.

ABRAMS: What do you—any sense of what you make of the allegations?

JOHNSON: Well, you know, I‘m like the same thing in the Kobe situation. I‘m here supporting both of them and Michael as well. And I can‘t believe it until I find out otherwise. So, I still think that both of them are not guilty until proven otherwise.

ABRAMS: How‘s the family? You say you‘ve spoken to the Jackson family members. What do they say to you about all of it?

JOHNSON: Well, first of all, we have to understand that the Jackson family is very close, so they have a close relationship. And they are going to support Michael to the end. And I think that any time your brother or your son, just like his mother and the other brothers and sisters, they worry because you don‘t know what‘s going to happen. But they are supporting him and they believe he didn‘t do it. So, with that being said you still worry because, you know, anything can happen at a trial.

ABRAMS: How is your health?

JOHNSON: My health is unbelievable. The medicine has done its part.

I‘ve been doing mine as far as working out. My attitude is good and...

ABRAMS: No effect—you are not feeling any effects. Still feeling...

JOHNSON: No.

ABRAMS: ... as good as you have for years.

JOHNSON: Exactly.

ABRAMS: That‘s great.

JOHNSON: Still work out five days a week. So, everything is going very, very well.

ABRAMS: Magic Johnson, a man who not only played a great game of basketball, but who has done an enormous amount for minority business around this country. Thank you very much for joining us.

JOHNSON: Thank you.

ABRAMS: We appreciate it.

JOHNSON: Thanks a lot.

ABRAMS: Coming up, every once this a while it‘s good to reflect on a day and how important a particular day is to everyone in history. When we come back why this day should be so important to all of us. Stay with us.

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ABRAMS: Coming up, why today is such an important day in history. And your e-mails on whether protesters at congressional hearings should be prosecuted. Stay with us.

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ABRAMS: My “Closing Argument” will be a little bit different today. Once in a while, it‘s good to take stock and think about what a day really means. If a day is about the events that happened on it, then what is May 20 really all about? Taking risks.

On this day in 1927, Charles Lindbergh took off in the spirit of St. Louis on the first solo flight to France. Five years later Amelia Earhart became the first woman to fly solo across the Atlantic. It‘s about innovation. On May 20, 1310, you could buy both left and right shoes for the first time. In 1874, the first blue jeans went on sale on many nights, if you could look under the anchor desk, you might see their descendants.

In 1956, the first hydrogen bomb. Today is about the arts. Bill Haley and the Comets helped kick off the rock revolution on May 20, 1954, with “Rock Around the Clock”. And it is about science. On this day in 1990, we saw the first pictures from the Hubble Space Telescope. And of course, every day is about the passage in people‘s lives. Like Charlie Sheen admitted to an L.A. hospital with a drug overdose in 1998 or silent film star Rudolph Valentino arrested for bigamy in 1922.

Christopher Columbus, the great explorer, died in poverty in Spain on May 20, 1506. And of course, it‘s a big day for anyone with a birthday like Cher who turned 58 today. Singer Joe Cocker, 60 with a little help from his friends. And pitcher David Wells, “The Boomer” is 41. It is just a good day in history.

I‘ve had my say. Now it‘s time for “Your Rebuttal”. Last night on the program we debated whether protestors who come to disrupt congressional hearings should be prosecuted more often. They showed up for the Abu Ghraib prison hearings and then again yesterday some seemed to be protesting at the 9/11 commission while former Mayor Rudy Giuliani was testifying.

Beverly Turk writes, “I think those hecklers should be prosecuted to the full extent of the law. Does no one have respect or anyone - for anyone nowadays? People think they‘re living in the ‘60‘s.”

From Englishtown, New Jersey, Jon Murphy. “The noisy protesting of testimony at an open hearing bears no resemblance to civil disobedience. It is neither civil nor effective. The right to raise the issues is absolute. The right to disrupt open proceedings is not.”

But Matt Dotseth from San Diego. “The fact that people actually exercised their First Amendment rights in Congress shouldn‘t disturb anyone. What should disturb people is the fact that we are debating why they should be arrested.”

Finally, a man who says he is the Reverend Snuffy Baxter asks, “I have heard many newscasters refer to multiple court-martials as courts-martial rather than court-martials. At first I thought the anchor may have misspoken, but having heard it more frequently I must be the one in error. Please be goodly enough to shed some light on the rules of grammar regarding the use of this word.”

Well, Reverend, the word court-martial can be used in both a noun and a verb and three different dictionaries have different explanations. But the easiest way to summarize it is to think of it as martial as relating to the Army and/or the procedure in courts, being the trials, which are plural.

By the way, are you the same Snuffy Baxter who was a country star and then sort of crossed over into pop music and then at a sitcom like “Life With Snuffy and Snuffy‘s Kids”? Well, if you are, congrats on becoming a reverend.

Your e-mails abramsreport@msnbc.com. Thanks for watching. “HARDBALL” is up next. Tim Russert...

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