updated 5/25/2004 9:59:05 AM ET 2004-05-25T13:59:05

Guests:  William Fallon, Jayne Weintraub, Stacey Honowitz, Joel Androphy, Rachel Ehrenfeld, Tony Rackauckas, Peter Morreale, Guy Womack

DAN ABRAMS, HOST:  Coming up, is Michael Jackson preparing to flee the country? 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Prosecutors say Jackson is—quote—“adored” in many countries that do not have extradition treaties with the United States and that Jackson may decide to skip town before the trial.  Could this man really sneak around unnoticed? 

Martha Stewart prosecutors on the defensive after one of their key witnesses is charged with perjury for his testimony in the case.  Now for the first time, Martha Stewart is speaking out about these new allegations. 

And a new poll shows almost half of Americans believe the soldiers accused of abusing Iraqi prisoners were following orders from above.  This on the heels of new video released of one of the soldiers apparently beating an inmate.  We‘ll talk to his attorney.

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi, everybody.  First up on the docket tonight, prosecutors in the Michael Jackson case say they are afraid Jackson may flee to Europe or even Africa if they cut down his $3 million bail.  This in response to an effort by Jackson‘s lawyers to reduce the amount of bail at $3 million.  They say he has no prior record and has shown up to all of his court appearances and that three million is well beyond the customary amount for these types of charges. 

But D.A. Tom Sneddon says this is not a customary defendant and that the high-priced bail may be the only thing keeping Jackson in the country.  Sneddon claims Jackson may well conclude that life as a wealthy absconder is preferable to what might amount to a life term in a California prison.

Is it really reasonable to believe Jackson is planning on hiding out in a foreign country for the rest of his life?  Joining me now, former prosecutor and chief of the Sexual Assault and Child Abuse Unit in Essex County Massachusetts Bill Fallon... 

WILLIAM FALLON, FORMER PROSECUTOR:  Hi Dan.

ABRAMS:  ... Broward County prosecutor and head of the Sex Crimes and Child Abuse Unit there, Stacey Honowitz and criminal defense attorney Jayne Weintraub.

All right, you know Bill, you‘re generally a pretty reasonably guy.  You know you don‘t take extreme positions.  You‘re telling me that you truly believe that there is a significant risk that Michael Jackson is going to flee to Europe or Africa. 

FALLON:  Dan, I‘m telling you that if I‘m the prosecutor I‘m arguing that.  I just came back...

ABRAMS:  What does that mean? 

FALLON:  I just came back from the...

ABRAMS:  What a cop out that is.

FALLON:  I just came back from the continent, as they say, and I‘m telling you over there they‘re saying he‘s looking at chateau.  He might move in with his buddy Roman Polanski, child rapist, child molester, it doesn‘t much matter.  And I think when you know $3 million, because he‘s bad off right now, he can‘t afford to give that up.  I don‘t think he has to live, as you say, under a rock.  I don‘t think France would send him back.  I don‘t think many countries would, and guess what?  He goes around and he‘s adored.  I think there‘s more of a reason now that he‘s facing more serious criminal penalties than he was now that he‘s indicted that he could leave and a prosecutor...

(CROSSTALK)

FALLON:  ... has an obligation to say we can‘t trust anybody to send him back.

ABRAMS:  Wait.  Apart from what you think of the French, you don‘t think that France would send Michael Jackson back? 

FALLON:  Did they send Roman Polanski back or did I miss it while I was away?

ABRAMS:  All right, but the comparison to the Roman Polanski case and look, I‘ve done a lot of segments on the fact that I‘m surprised that Roman Polanski has been able to get away with what he did, but you know there, they were talking about—the debate was is he going to get sentenced to no time or are prosecutors going to make him serve 60 days or whatever it was in terms of the plea bargain falling apart.  Here you‘re talking about a much, much more serious crime. 

FALLON:  Dan, but as I recall, Polanski was actually convicted of rape and then he fled. 

ABRAMS:  He pled guilty, yes.

FALLON:  So the thing is to me, if they‘re not sending him back for that, which is...

ABRAMS:  Well it wasn‘t rape...

(CROSSTALK)

ABRAMS:  It wasn‘t—anyway...

FALLON:  I don‘t trust him.

(CROSSTALK)

ABRAMS:  I don‘t want to get into the Polanski case.  Another day I will because I find...

FALLON:  OK.

ABRAMS:  ... that case fascinating.  Jayne Weintraub, why don‘t you jump in?

JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY:  You know, Bill, you are taking such a jump what you would say as a prosecutor.  Let‘s be honest here.  There is no evidence whatsoever that Michael Jackson would flee.  Even their response, as Dan just put up in the tease, it says that he very well may.  He could.  He might.  They have no evidence to suggest in any spectrum that Michael Jackson has made any plans.  He has a constitutional right to a reasonable bond to assure his appearance. 

ABRAMS:  Jayne, let me read you this from Tom Sneddon‘s motion.  It is not merely a “Michael Joe Jackson” who is confronted by charges that might mandate his confinement in state prison for a very long time.  The defendant here is Michael Jackson...

(CROSSTALK)

ABRAMS:  ... international celebrity...

WEINTRAUB:  Exactly, so where‘s he going...

ABRAMS:  ... a man whose lifestyle to date would not have prepared him to adapt readily to a prison environment and routine and whose physical stature will present its own problems for him in making the unnecessary adjustment.

I mean it sounds like Sneddon is saying, you know he might start thinking about it and say to himself you know what, prison really wouldn‘t be a particularly good place for me so he‘s going to leave. 

WEINTRAUB:  And so reducing his $3 million bail, that‘s going to make a difference?  Come on Dan.  You know better than that.  Let‘s remember one thing.  It is all speculation.  He‘s entitled to reasonable bond...

ABRAMS:  But bail is always speculation...

WEINTRAUB:  ... and where is Michael Jackson going to go that he‘s not going to be known? 

ABRAMS:  Stacey Honowitz...

(CROSSTALK)

ABRAMS:  Hang on.  I‘m going to let Stacey Honowitz answer that question.

STACEY HONOWITZ, BROWARD COUNTY PROSECUTOR:  Listen, Jane knows it doesn‘t make a difference.  Everybody does know him but in the foreign countries he‘s adored.  He just got an award in Africa for his humanitarian work.  They‘re not going to send a guy like this back to the United States if he‘s looking at a lengthy jail sentence.  I think it‘s reasonable for the prosecutors to believe that this guy is going to flee and he won‘t be sent back. 

FALLON:  Remember, as Stacey is pointing out here, $3 million might be bad for you or I have to pay, not Dan, he could afford it, but I think...

ABRAMS:  Yes.

FALLON:  ... the thing is for an average person you set high bail. 

ABRAMS:  Well...

FALLON:  This just happens to be high bail for him because you want somebody not to flee, because you want it to hurt, you wanted a reason to keep them here and $3 million he can make...

ABRAMS:  And that‘s...

FALLON:  He can‘t afford to lose it...

ABRAMS:  That‘s exactly what Tom Sneddon said.  He says defendant has thus far made all of his appearances in court as directed.  One good reason for his having done so is the severe consequence of not having done so.  We don‘t have this ready, number three?  Can we put that up?  Thank you.

There you see the beginning part that I already read there.  OK.  One good reason for his having done so is the severe—and I‘ll finish it—

$3million is a lot of money to leave behind even for him, says Tom Sneddon

·         Jayne. 

    

WEINTRAUB:  But Dan, he—you know maybe he needs the money.  Has anybody thought about what‘s in Michael Jackson‘s motion asking for the reduction of bond?  After all, let‘s remember, that‘s what started this.  Michael Jackson‘s lawyers filed a motion to reduce the amount of bond.  And we‘ve heard, we don‘t know if it it‘s true, but we‘ve heard that he had a lot of financial difficulties lately.  Maybe he needs money to help fund the defense.  Maybe he needs money to fund the legal experts that he needs available to him.  We know that he is fighting the case.  We know that he‘s maintained his innocence and he‘s presumed innocent...

ABRAMS:  All right...

WEINTRAUB:  ... under the Constitution. 

ABRAMS:  ... Stacey Honowitz, let me ask it to you this way. 

HONOWITZ:  Yes.

ABRAMS:  Let‘s assume for a moment they reduce bail.  This is not a legal question I‘m asking.  I‘m asking you almost like as a sort of Solomon-like judge to answer this question...

HONOWITZ:  I‘m a poor person to ask that...

ABRAMS:  All right, but that‘s all right.  If you don‘t want it, I‘ll throw it to Bill if you don‘t want...

HONOWITZ:  No, go ahead.  Go ahead.

ABRAMS:  All right.  So the question is let‘s assume for a moment they do reduce the bail and let‘s say its $1 million...

HONOWITZ:  Right.

ABRAMS:  ... as opposed to three million.  Yes or no, do you expect that that will likely lead Michael Jackson to flee the country? 

HONOWITZ:  I—listen, as a prosecutor, number one, yes I think he‘ll flee the country. 

ABRAMS:  Really?

HONOWITZ:  Number two, I think as a citizen, everybody can see, they show pictures of him almost on a daily basis being swooned by people in Africa and Europe, all over the place.  I think that he‘s thinking to himself I could have a very nice life if I fled this country. 

(CROSSTALK)

ABRAMS:  ... live in like a bin Laden like cave somewhere...

(CROSSTALK)

HONOWITZ:  ... it doesn‘t matter...

(CROSSTALK)

HONOWITZ:  Listen, it doesn‘t matter if he lives in a cave...

(CROSSTALK)

FALLON:  Dan...

HONOWITZ:  He doesn‘t have to live in a cave.  They don‘t have to send him back.  Ira Einhorn fled the country—I don‘t know if you remember who that was...

ABRAMS:  I do.  I covered the case very well...

HONOWITZ:  ... he killed somebody in Philadelphia...

ABRAMS:  ... yes.

HONOWITZ:  ... for 25 years.  You know nobody sent him back...

ABRAMS:  But Ira Einhorn, no one knows who—no one knew who Ira Einhorn was in France. 

FALLON:  Dan...

ABRAMS:  Michael Jackson would have to walk around like he did in that shopping spree he went on when he wore that ski mask over his head...

HONOWITZ:  Well I think that...

ABRAMS:  ... and he got stopped because people were wondering what‘s a guy with his whole face covered doing in our store.

FALLON:  Dan...

HONOWITZ:  You know what Dan?  Walking around in a ski mask is better than sitting in prison for a lengthy time...

(CROSSTALK)

WEINTRAUB:  You think an extra $1 million is going to make a difference...

ABRAMS:  Bill Fallon, go ahead...

(CROSSTALK)

ABRAMS:  Bill.

FALLON:  He‘s only going to do a ski mask if he wants to do it.  I‘m going to tell you—he‘s going to delight saying, do you know what they did in America where they hate me now for whatever reason and they hate people of my (UNINTELLIGIBLE) they falsely accused me and I couldn‘t get a real trial and I couldn‘t get a good trial.  That‘s why I‘m here.  His fans are going to say you‘re right Michael.  You‘re innocent, and all of a sudden it‘s going to be the United States versus Michael Jackson.  And I‘m going to tell you I do think...

ABRAMS:  You know...

FALLON:  ... it makes a difference between three million and one...

HONOWITZ:  It does.

FALLON:  I‘m not saying he can afford one, but he can‘t afford three.

ABRAMS:  And I‘ve got to say—and Jayne, I‘m going to give you the final word here.  I don‘t think it‘s wrong for the prosecutors to say look, let‘s keep the bail where it is.  And I think that I guess the argument has to be then that there‘s a risk that he‘s going to flee.  But, you know, it just seems like a real long shot.  Jayne, go ahead, final word.

WEINTRAUB:  They don‘t have any evidence whatsoever of that.  And remember Dan they have his passport.  They have travel documents.  Even Michael Jackson has to go through customs.  Even Michael Jackson has to go through all of the travel visas that are necessary to go out of the country and go into the country...

(CROSSTALK)

WEINTRAUB:  ... and they‘re not going to change the rules for Michael Jackson.

ABRAMS:  He can get LaToya‘s passport. 

FALLON:  Exactly...

(LAUGHTER)

FALLON:  ... or Janet‘s on a given day.

ABRAMS:  No, no, let me tell you—I got to tell you, I think that

this is—I think that in the end here we‘ve got to say that there‘s real

·         no chance.  There‘s nothing to indicate he‘s going to go anywhere. 

All right, Bill Fallon, Stacey Honowitz, Jayne Weintraub, thanks a lot.

WEINTRAUB:  Thank you Dan.

ABRAMS:  Coming up, for the first time, Martha Stewart reacts to news that one of the prosecution‘s key witnesses from her trial has been charged with perjury.  We‘ll hear what she had to say. 

Plus, new information about a link between al Qaeda terrorists and selling drugs, a growing marriage of convenience that has international law enforcement concerned. 

And later, my closing argument on Madonna‘s derailed attempt to effectively take a stand against fear and terrorism. 

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, we‘ll hear from Martha Stewart about the new charges of perjury against a key prosecution witness from her case.

(COMMERCIAL BREAK)

ABRAMS:  Martha Stewart‘s attorneys announced today that they will seek a new trial for Martha Stewart.  This after Friday‘s revelation that one of the key witnesses for the prosecution, ink expert Larry Stewart, no relation to Martha, was charged with perjury.  During the trial, Stewart‘s defense team argued that Stewart and her stockbroker, Peter Bacanovic, had previously agreed to sell her shares of that ImClone stock when the price hit 60 or below.  Now rather than the prosecution‘s theory that she only sold after hearing that ImClone chairman Sam Waksal was selling his shares.

But ink expert Larry Stewart testified that the ink used to make an “at 60” notation on Bacanovic‘s log was actually written with a different pen than the one used to make the other marks on the sheet.  Government says now that the ink expert lied on the stand when he claimed that he himself had performed the tests on the ink.  But despite the perjury charge, the government stands by the results of the ink analysis. 

(BEGIN VIDEO CLIP)

DAVID KELLEY, U.S. ATTORNEY:  We‘ve uncovered nothing to raise questions about the accuracy or validity of the results of that examination. 

(END VIDEO CLIP)

ABRAMS:  Well now Martha Stewart is speaking out publicly about the new development.  Last night before the Daytime Emmy Awards ceremony she said this.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Well it‘s kind of distressing actually and that we‘re finding more and more things that really interrupt the due process of law and I‘m a believer in American justice.  I really am disturbed. 

(END VIDEO CLIP)

ABRAMS:  So what does this perjury charge mean for a retrial for Martha?  Joining me, white-collar defense attorney Joel Androphy. 

So, Joel, Martha Stewart is disturbed.  I can understand.  If I was her, you know I would be disturbed too.  It‘s you know good to see she still has faith in the American justice system.  Look, I have told you in the past, you and I have talked about this, I thought that the business about that juror lying was going to go nowhere, that that was a non-issue, that it was unfortunate but a non-issue.  This is serious.  When you‘ve got one of the key witnesses in the case lying on the stand, it‘s serious.  Now the prosecutors say it didn‘t change the actual results.  What do you make of that? 

JOEL ANDROPHY, WHITE COLLAR DEFENSE ATTORNEY:  First of all, the prosecutor decision to indict the person now is intriguing.  This person holds, Dan, the inside cards in this case.  The defense wants to be able to talk to the government agent.  The prosecution, obviously, wouldn‘t be excited about that.  We need to know why, and under the circumstance, about his perjury and...

ABRAMS:  Let me give you the circumstances that we know of and I‘ll let you comment.  What we‘ve heard publicly is that a number of his fellow agents heard him testifying and as time went on, more and more of them complained to the government.  They then did their own investigation.  Their investigation concluded recently that he had lied and as a result they charged him. 

ANDROPHY:  Well that‘s the government‘s side of things and that plays well for the government that they had nothing to do with this thing.  But on the other hand, it may mean that the government sponsored this perjury.  We don‘t know. 

ABRAMS:  How would they have sponsored it?

ANDROPHY:  We don‘t know.  This expert may have not done his job and the government may have said to him get on the stand...

ABRAMS:  Oh come on.  There‘s no evidence...

ANDROPHY:  We don‘t...

ABRAMS:  There‘s absolutely nothing—I mean see that‘s what irritates me, is when we get into the world of pure unadulterated speculation.  There‘s nothing to indicate that that‘s what happened, right?

ANDROPHY:  That‘s why we need a hearing.  And that‘s why...

ABRAMS:  ... I agree with you...

ANDROPHY:  ... this government agent...

ABRAMS:  I agree with you...

ANDROPHY:  ... this government agent is never going to talk at this point in time.  He‘s going to take the Fifth. 

ABRAMS:  See and last time when it came to the juror I wasn‘t so sure we needed a hearing because I knew that in the end, if a juror lies on his questionnaire that would have no impact on the case and there was no evidence that he was lying in order to get on the jury that‘s going nowhere.  When you‘ve got one of the prosecution‘s star witnesses lying, I think you have to have a hearing. 

ANDROPHY:  Well there‘s not going to be a hearing because this person is not going to testify.  You‘re going to have the government explaining their version of things, the defense giving their spin on things, and the witness who knows everything not testifying probably taking the Fifth. 

ABRAMS:  Well wait a sec.  What about—wait, what about his colleagues could testify, though...

ANDROPHY:  Well...

ABRAMS:  I mean the people who came forward could say look, this guy, you know this guy claimed he was there for the test.  I was the guy who did the test.  I didn‘t know what he was talking about. 

ANDROPHY:  That still doesn‘t answer the question as to why this guy got on the stand, it would have been very simple for the government to put another witness, the guy that did the test, why didn‘t he testify?  Did he not have the background?  Was there a reason why the government didn‘t want these other people on the stand? 

ABRAMS:  Joel, does the government get any credit, though, for bringing these charges?  Meaning, you know using your sort of more conspiratorial theory, they could have just said you know what, let‘s try and get rid of this.  Let‘s try and sweep this away and not deal with it.  We don‘t really have to charge him with perjury.

ANDROPHY:  Well they may have done it under my conspiratorial theory, they may have done it under that theory because they knew the guy was going to come forward and tell the public what really happened.  They wanted to take the offensive there and charge him in the case...

ABRAMS:  Maybe.

ANDROPHY:  ... and pursue it that way.  But remember Dan, the standard in this case is because it‘s a government agent testifying...

ABRAMS:  Yes.

ANDROPHY:  ... and because it‘s the alleged perjury of a government agent, the standard is a lot less than if a normal person went on the stand. 

ABRAMS:  Yes.

ANDROPHY:  So, if you know the jury might have acquitted Martha Stewart then she‘s...

ABRAMS:  Except that...

ANDROPHY:  ... entitled to a new trial. 

ABRAMS:  ... you know except, as you know, that they didn‘t convict on the one count with regard to Bacanovic that this guy was the star witness for.  But anyway look, this is not nothing and you know...

ANDROPHY:  I understand...

ABRAMS:  Yes.

ANDROPHY:  ... they didn‘t convict on that one count, but it‘s all what they call inextricably intertwined. 

ABRAMS:  All right.

ABRAMS:  It‘s like trying to find another shade of blue in my sport jacket here...

ABRAMS:  Joel Androphy...

ANDROPHY:  ... it‘s impossible.

ABRAMS:  ... always a great guest.  Thanks a lot for coming on the show, Joel. 

ANDROPHY:  Take care Dan.

ABRAMS:  Coming up, what could be proof that al Qaeda is selling drugs to help finance its terror operations. 

And a teen girl accuses three boys of gang raping her and videotaping the act.  They say she was just a willing partner and that she was an aspiring porn star.  We‘ll talk to one of the boys‘ attorneys and the D.A.  handling the case coming up.

(COMMERCIAL BREAK)

ABRAMS:  It may provide hard evidence of something that has long been feared, a connection between al Qaeda terrorists and drug dealers.  The “L.A. Times” reporting that to get the explosives used to kill 191 people in Madrid last March, Islamic terrorists doubling as drug dealers, get this, swapped hashish for dynamite and justified their slide into drug crimes as—quote—“necessary for the Jihad.”

Spanish police also say trafficking in drugs served as a cover for the terrorists masking their murderous ideology.  And while the mask has been torn off the Taliban and al Qaeda allegedly continue to fund their terror campaigns with Afghanistan‘s opium crop.  The country produces more opium, the precursor for heroin, than any other nation.  Last year‘s crop alone was worth $2.3 billion. 

Despite millions spent to control it, this year‘s opium crop will likely be even larger.  All of this really comes as no surprise to my next guest, terrorism expert Rachel Ehrenfeld, the author of “Funding Evil: How Terrorism Is Financed and How to Stop It”. 

All right, Rachel, you were on this program months ago when your book came out and you were telling me and telling my viewers about the problem about the link between drug dealing and al Qaeda.  And so now we‘re seeing what appears to be a direct swap of hashish for dynamite and I guess this comes as no surprise to you. 

RACHEL EHRENFELD, AUTHOR, “FUNDING EVIL”:  No it doesn‘t.  This has been going on for many, many years actually.  I have written many years ago a book called “Narco-Terrorism”, which describes the connections between terrorist organizations and criminal organizations.  And it has been actually a major tool of the Islamist terrorist organizations in their fight against the West.  And it‘s a very good tool, as far as they are concerned, because it does not only provide them with huge amounts of money, it also helps to corrupt the targeted countries and to create health hazards to ruin the economy, to corrupt officials.  It‘s a wonderful weapon also to describe how the Westerners are corrupt in order to recruit new members to their cause. 

ABRAMS:  There was a quote from your book that says that some of these terrorists organizations are saying and I quote, “we are making these drugs for Satan America and the Jews.” 

EHRENFELD:  Yes.

ABRAMS:  This is some sort of informal policy? 

EHRENFELD:  Well, it is because the leaders, the religious leaders are giving them fatwahs, giving them permission in order to permit them to go and deal in drugs.  This is really to undermine and to destroy Western society, if you want, the Jews, non-Jews, the Christians, and America of course is the big Satan and it has to be destroyed and what better way than using drugs. 

ABRAMS:  Let me ask you a bottom line question.  If someone is buying drugs here in the United States, someone is buying, you know, cocaine or marijuana, it‘s not, you can‘t say that it‘s likely that that money is going to terrorism, can you?  You‘re just saying it‘s possible? 

EHRENFELD:  No, I can say that it‘s likely it is going to terrorism. 

ABRAMS:  Really? 

EHRENFELD:  Yes.  Because today all major drugs hashish, cannabis, heroin and cocaine are really controlled by either criminal organizations that have ties with Islamist terrorist organizations or they are working together with them or even by Islamist terrorist organizations. 

ABRAMS:  Because we think of the gang, you know like these American gangs selling drugs on the street, et cetera, you know for their own purposes having nothing to do with Islamic terrorists. 

EHRENFELD:  The revenues are such—the revenues are so huge that there is money going to all directions and of course the people, the gangs that are selling them are making money off it, but the people who control the trade, the people who control where the drugs are coming from, are those who are interested in the ruin—in ruining the United States and these are mostly today Islamist terror organizations. 

ABRAMS:  Rachel Ehrenfeld, the minute I heard this story I said we‘ve got to get her on the program.  She said this on this program months ago.  Thanks very much for coming back.

EHRENFELD:  Thanks for having me. 

ABRAMS:  Coming up, a new videotape of Corporal Charles Graner apparently abusing prisoners at Abu Ghraib.  Does this change his defense?  We‘ll talk to his attorney.

And another graphic video, this one showing either an unconscious teenage girl being gang raped by three boys or the defense says is a willing participant faking unconsciousness.  We‘ll talk to the defense attorney for one of the boys and the D.A. handling the case. 

And tonight, 8:00 p.m. Eastern, live coverage of President Bush‘s speech on Iraq.  Chris Matthews hosting our coverage.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, three teen boys on trial for allegedly gang raping an unconscious girl and videotaping it.  The defense says it was consensual.  We‘ll have that in a moment, but first a look at the headlines. 

(NEWS BREAK)

ABRAMS:  Welcome back.  In Orange County California, a young woman says she was raped by three boys who videotaped the entire incident.  Now, she took the stand in a trial last week where the defendants could face up to 55 years in prison.  One of the boys on trial is the son of the assistant sheriff.  Prosecutors show footage of him and the two other boys having sex with the victim while she was apparently passed out on a pool table. 

They say the boys sexually assaulted the young woman with a bottle, a pool cue, and a lit cigarette while she remained motionless on a pool table.  Defense attorneys paint a very different picture, pointing to inconsistencies in the girl‘s testimony.  They say she was an aspiring porn star who consented to the sex.  Friends of the victim told a private investigator that she was promiscuous and would have agreed to the sex acts.  The trial resumes tomorrow. 

Joining me now to talk about the case is criminal defense attorney Peter Morreale, who represents Keith Spann, one of the defendants accused of rape, and Tony Rackauckas, district attorney for Orange County.  His office is prosecuting this case.

All right, Mr. Rackauckas, let me start with you. 

UNIDENTIFIED MALE:  OK.

ABRAMS:  You know when you‘ve got a case where the alleged victim says, admits that she consented to sex with two of the men shortly before the incident, admits that she at least kissed the third in the days before the incident, did you have any reluctance, and again that doesn‘t make it not a crime to happen later, but did that make you reluctant to file these charges? 

TONY RACKAUCKAS, DISTRICT ATTORNEY, ORANGE COUNTY:  No, of course not.  You know this is a 16-year-old girl and she‘s been very forthcoming about her activity with these people leading up to the days when this happened, when this thing was videotaped.  She‘s been completely honest.  She‘s admitted having sex with, as you indicated, two and being in the swimming pool with the third of these defendants, but that doesn‘t create a situation where they can render her unconscious and then do anything they wish with her unconscious body.  It‘s simply not legal.  It‘s rape to have sex with an unconscious woman. 

ABRAMS:  One of the things I found most troubling for your case was the fact that one of the alleged victim‘s friends told a private investigator and I quote, “She made references saying things like, I don‘t know why they drugged me because I probably would let them do it anyway with my consent, without drugs.”  Did that trouble you? 

RACKAUCKAS:  You know that‘s what one of her friends said.  That‘s not what she is saying and the truth of the matter is that, you know, that‘s not really what this case is about.  It‘s not troubling because this case is about her being unconscious and not able to decide whether to consent or not to consent.  You know a woman has a right to make that decision at the time and she was rendered unconscious, that right was taken away from her, her human dignity, her humanity was taken away from her. 

ABRAMS:  All right...

RACKAUCKAS:  And so that‘s what this case is about. 

ABRAMS:  Mr. Morreale, you know I think on the other side of this, the most troubling part of the case for your side is exactly what Mr.  Rackauckas is referring to and that is the fact that the defense centers on this idea that somehow she‘s essentially faking it on the videotape I mean we hear that so often in these cases where someone is caught on videotape doing something sexually and they say oh, you know the person wasn‘t actually unconscious.  She was just pretending.  We saw it in the case of Andrew Luster, et cetera.  Why is this case different? 

PETER MORREALE, ATTY FOR BOY ACCUSED OF GANG RAPE:  Well first of all, I want to make sure everything is clear for the record.  There is no evidence that she was drugged or sedated in any way, shape or form. 

ABRAMS:  She says that, right? 

MORREALE:  ... even though the—pardon me?

ABRAMS:  She says that, right?  She says she...

MORREALE:  Well she—no, I don‘t believe she‘s ever actually said that.  I think the prosecution is saying that despite their toxicology reports that indicate to the contrary.  As far as her status whether she was faking it or not, I think everyone needs to look into the facts surrounding this girl, her background, how she acts, how she interacts with people.  Not everybody handles things the same way and I think that‘s wherein the problem lies.

Mr. Rackauckas was just talk about an unconscious person and I know he‘s not the trial deputy in this particular case, but he is the district attorney of the county.  I can tell you this much, she is actively involved in orally copulating two of the boys and it certainly is not the act of an unconscious person.  Our position has been and my position as far as Keith Spann is concerned is that she was a willing participant, that she consented to everything that occurred on that particular evening and there is a tremendous amount of evidence to support that. 

She was actively involved with all three boys the very day before, the

night before.  She actually had sex in front of her girlfriends with one of

the boys.  So this is not an innocent 16-year-old girl as has been painted

by the prosecution.  And I think that needs to be...

ABRAMS:  But they‘re not really—I mean how can anyone be painted as innocent when she‘s admitting that she had sex with two of the guys like, you know within days and she made out with a third one.  I mean it‘s sort of hard to paint that kind of person as innocent, right?

MORREALE:  Well I agree and I think the problem is this that the district attorney in their opening statement indicated that these young boys, they‘re about six—five, six months older than her, had lured her to the beach in order to accomplish this crime.  In other words, baited her to come down there.  So they‘ve set—they‘ve cast a die. 

(CROSSTALK)

MORREALE:  They‘ve begun their prosecution with that theory in mind and the defense, while we are different in some respects, have a common ground and that is that she went there voluntarily, she consented to it and let me just say this.  She is no stranger to the camera.  This young lady is very receptive...

ABRAMS:  But see...

MORREALE:  ... of being video filmed. 

ABRAMS:  That seems to me to undermine the question I was just going to ask Mr. Rackauckas, ask him in a minute, you can quickly respond to this.  I would think that the argument on your side would be she saw the videotape and decided this is so embarrassing now I‘ve got to move forward and say it was rape. 

MORREALE:  Well I think what the evidence has been thus far, initially she denied she knew there was a videotape of my client...

ABRAMS:  Yes.

MORREALE:  ... that was filmed on the 30th and then later this incident allegedly occurred on the fifth, she claimed that she didn‘t know anything about that either...

ABRAMS:  (UNINTELLIGIBLE) 

MORREALE:  I‘m sorry.

ABRAMS:  Go ahead. I‘m sorry.  I interrupted you.  Quickly...

MORREALE:  As the case has been progressing, evidence has surfaced now that she was aware of the videotaping between my client and her on June 30.  She was a participant...

ABRAMS:  All right...

MORREALE:  ... in the sex acts. 

ABRAMS:  ... I‘ve got to give Mr. Rackauckas the final word. 

RACKAUCKAS:  Thank you.  The defense counsel here has been mischaracterizing a great deal.  For example, with respect to whether or not she had any intoxicating beverages or drugs he seems to think or seems to indicate that she was completely sober, not so.  Even their best case is that they gave her beer, marijuana, and a glass of 86-proof alcohol.  That would render pretty much anybody.

ABRAMS:  Yes, but she drank.  I mean you—I mean you—they didn‘t force it down her throat. 

RACKAUCKAS:  Absolutely and there‘s a great deal of mischaracterization here about the video itself and about a prior video that was taken unbeknownst to her, so that‘s what the jury is for.  We‘re going to present this to the jury.  They‘re going to watch the tape. 

You know, a judge who saw this tape before and—on this question of how she was—whether she was conscious of not said she was treated like a piece of meat.  The jury can see that her body is just simply being manipulated.  All this stuff about her engaging in this oral sex, it‘s all just the things that they‘re doing.  They‘re manipulating her body and so the jury will be able to make that decision...

ABRAMS:  I‘ve got to wrap it up. 

RACKAUCKAS:  ... have a lot of faith in the jury system...

ABRAMS:  Got to wrap it up.

RACKAUCKAS:  ... and I know they‘ll reach the right result.  Thank you.

ABRAMS:  D.A. Rackauckas and Peter Morreale, thanks a lot for coming on the program.  Appreciate it.

Coming up, a new poll shows almost half of Americans believe the soldiers accused of abusing Iraqi prisoners were following orders from above.  This on the heels of that new video released of one of the soldiers apparently beating an inmate.  We‘ll talk to his attorney.

(COMMERCIAL BREAK)

ABRAMS:  This just in to us from Reuters News Service.  The United States will demolish the notorious Abu Ghraib prison near Baghdad in consultation with a new Iraqi government, the White House said on Monday.  There was a lot of discussion about whether that prison was actually going to be destroyed or not.  The announcement now coming that it will be.  This (UNINTELLIGIBLE) a sort of victory of sorts in the court of public opinion for the soldiers tied to the Iraqi prison abuse scandal.

An Annenberg poll shows almost half the public now believes the soldiers were following orders from commanders when they slapped, stripped and sometimes abused detainees at the Abu Ghraib prison, something we see Specialist Charles Graner, a former Pennsylvania prison guard apparently doing in this digital video.  According to “The Washington Post”, other M.P.s at the prison say Graner helped lead and organize the abuse.  He now faces charges including conspiracy to maltreat detainees, dereliction of duty for willfully failing to protect detainees from abuse, cruelty and maltreatment of detainees and obstruction of justice.

And Specialist Joseph Darby, you know the one who blew the whistle on Abu Ghraib, says when he confronted Graner about photographs like the ones we‘ve seen that Graner told Darby—quote—“The Christian in me says it‘s wrong but the corrections officer in me says I love to make a grown man piss himself.”  Specialist Graner‘s defense, however, may take comfort from more recent developments in this case that could bear on who‘s responsible.

General Janis Karpinski, who commanded U.S. prisons in Iraq including Graner‘s unit, suspended from her reserve command today and though the Army has denied it, a military lawyer for another soldier in the case says a captain at Abu Ghraib told him that General Ricardo Sanchez, the top U.S.  commander in Iraq, was aware or even present when detainees were abused. 

I‘m joined now by Guy Womack, Specialist Charles Graner‘s attorney. 

Mr. Womack, thanks very much for coming on the program.

GUY WOMACK, SPEC. GRANER‘S ATTORNEY:  Good evening.

ABRAMS:  All right, before we talk about your defense, but let me just first ask you about this new video that was released late last week.  Did you know of it and does it change anything with regard to your defense?

WOMACK:  I‘ve seen bits and pieces of it.  I have to say that MSNBC has faster discovery than I do.  But I‘ve not seen the whole videotape. 

ABRAMS:  But you know what‘s on it, right?  I mean...

WOMACK:  Yes.

ABRAMS:  ... it appears to be Graner striking a prisoner.  Does that change anything with regard to your defense? 

WOMACK:  No, not in any way.  That‘s part of the environment that the military intelligence officers, other government agents and civilian contract employees had directed be created at Abu Ghraib.  It‘s part and parcel with everything that we‘ve seen. 

ABRAMS:  Now, what do you make of these various people who are coming forward and saying that Graner was effectively the sort of ringleader of this and that he was the one sort of spearheading much of this?

WOMACK:  Well that can‘t be true.  Specialist Graner is an E-4 in the Army.  A number of the other M.P.s are sergeants and staff sergeants.  They were commanded by commissioned officers, lieutenants and captains primarily.  If he were doing these kinds of things without their direction, without their permission, they would have stopped it. 

ABRAMS:  But is it possible, though, that he in conjunction with other people at his level and below, you know, that he was leading that crew? 

WOMACK:  Yes.  Except that you have to keep in mind that he was always under the scrutiny and the direction of military intelligence officers and enlisted men who were superior to him in rank. 

(CROSSTALK)

WOMACK:  The two that have just been held, Cruz (ph) and Rivera (ph), both are specialists, are higher, and they were military intelligence.  They were actually superior to him within Abu Ghraib. 

ABRAMS:  And I know you believe this picture, if we can put up picture number five here, that I believe you believe this picture, which shows Graner in conjunction with a group of others around what appears to be a detainee on the ground, you believe that supports your case, correct?

WOMACK:  Yes, it does.  And of course, those pictures helped us identify and helped the Army identify at least two of the four military intelligence officers who were present in that scene. 

ABRAMS:  And what do you make of those, you‘ve heard this 1,000 times in the last few weeks, but the idea that you can‘t obey an unlawful order and the idea that someone like Graner would know that this was unlawful? 

WOMACK:  Well you have to consider the environment.  Determining whether something is illegal or not is situation-dependent.  For this particular case at Abu Ghraib, Specialist Graner and the other M.P.s came into a prison that was already exercising these abuses.  They saw these things going on and when they were ordered to continue it, they were merely continuing an environment that already existed.  It would look legal to them.

ABRAMS:  What about the issue, though, of him, for example, you know he and Lynndie England giving the thumbs up et cetera.  Is the defense going to be that that was part of the order, which was to put their thumbs up and look happy? 

WOMACK:  In some of the instances they were specifically ordered to do that to make them look more brutal, colder if you will.  In some of the cases I think it was more gallows humor.  They had been doing that and they went ahead and continued doing it just as a way of dealing with the stress of the moment.

ABRAMS:  Is he still involved with Lynndie England? 

WOMACK:  I‘ve never asked him about his personal relationship with her.  I don‘t know that they‘ve ever had one.  I‘ve chosen not to ask him about it because right now it‘s not relevant to me.

ABRAMS:  Understood.  But is it—I mean she‘s claiming that she‘s pregnant with his child, correct? 

WOMACK:  I‘ve heard that said by her and by other people.  I‘ve never asked him about it. 

ABRAMS:  All right, understood.  Guy Womack thanks a lot for taking the time to come on the program.  Appreciate it.

Coming up, Madonna letting the terrorists win.  She cancels her concerts in Israel after receiving death threats.  It‘s my “Closing Argument” coming up.

(COMMERCIAL BREAK)

ABRAMS:  “Closing Argument”—how terrorists have now even defeated Madonna.  The “London Sun” reporting that the music star canceled three concerts in Israel after an unnamed Palestinian terror group threatened to kill her and her children.  It‘s ironic when she announced the concerts almost two months ago one article pointed out that Madonna was teaching a lesson in how not to give in to—quote—“terrorism‘s greatest weapon fear.”

In retrospect, it probably would have been better if she hadn‘t agreed to do the concerts at all because now the terrorists will feel emboldened.  For them fear can be an even more powerful tool than death itself.  Changing policy or even changing a star like Madonna‘s schedule can be the fuel that helps them thrive.  At first “The Sun” reports she was prepared to go ahead anyway with extra security, but after it became clear the terrorists knew details about her security staff, she just decided it wasn‘t worth it. 

It‘s hard to blame her.  Apparently the letters named her two children and say they would be killed if she performed in Israel.  Having someone to threaten to kill your kids would lead almost all of us to significantly alter our lives, to do whatever necessary to avoid the threat.  But it serves as a reminder that as a nation we must ensure we don‘t capitulate in the wake of threats, that we do not follow the lead of the Spanish who voted in a new government as a result of the bombings there, a government who‘d promised to remove troops from Iraq just as the terrorist had demanded. 

It‘s clear the only thing that scares the terrorists is the fear of irrelevance, that they will change nothing, that their efforts will be thwarted.  We need to scare them back. 

I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last week, the first of many courts-martial—courts-martial, kind of weird, but true—for the Abu Ghraib prison abuses.  The court-martial, this one, was closed to the public, which is common, and although over 230 journalists including some Arab news outlets were in the courtroom and an overflow room to cover it, protesters and many in the Arab media in particular said this trial should be televised.  We debated and you did too. 

From Geneva, Illinois, Attiya Shams.  “Televising these events will only make a bad situation worse.”

Mary Ann in Ohio.  “Lawyers and the media have influenced and messed up our system of justice.  Let the military do its job.  Do not endanger any more of our military.”

But Mark writes, “I want to see them televised.  As I see it, the military has rushed this, found the weakest link, and is going to try to use it to try the rest of them.”

My interview with NBA legend and Los Angeles Lakers Vice President Earvin Magic Johnson, who is also the co-chair of NASCAR‘s Drive for Diversity, we talked about that as well as Kobe Bryant and the Michael Jackson cases.  But even though we did a segment on diversity in NASCAR, Doug Masser from Denver, Colorado sees a non-diverse conspiracy. 

“Funny, he says, how you never got around to asking Magic his thoughts about the Martha Stewart trial or the fiasco regarding a select number of U.S. troops doing terrible things to the prisoners.  Nope, you just asked him about the black guys in trouble.”

Doug, let‘s see.  Was it because Magic is black that I asked him about those cases or is it because Magic works with Kobe Bryant every day and regularly talks to Michael Jackson‘s family?  If he had special insight about the Stewart case or the Abu Ghraib prison scandal, I promise, I would have asked him about that as well. 

Finally, last Thursday was my birthday so I reflected on other events that happened on May 20, while my producers teased me a little with some of the words on the screen.  Thanks to all of you who wrote in, by the way.  A lot of you wrote in very nice birthday wishes.  I appreciate it. 

But for George McDowell from Wichita, Kansas, somehow what I said changes everything.  “I‘ve always enjoyed your show and thought you were a pretty intelligent and neat guy.  But now finding out you share a birthday with Cher really makes you cool in my book.”

All right, George.  And I mentioned that on May 20, 1506, Christopher Columbus died in Spain.  There‘s always a party pooper in the stack of e-mails. 

Stan Ulrich, “I like Dan‘s indulgences but to cite something from May 20 in 1506 is ridiculous since that day is not the same as ours.  That was the Julian calendar and we use the Gregorian calendar.  The day drift at that point would have been about 10 days.”  

OK, Stan.  First of all, you presume that the source of our information didn‘t already adjust for the Gregorian calendar, but even if they did, when Pope Gregory XIII issued the change in calendars on February the 24th, 1582, the 10 days omitted from the calendar were in October.  How does that change the fact that Columbus‘s death was still recorded on the date of May 20?  Most importantly, Stan, lighten up. 

Your e-mails abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  Hopefully, I‘ll read them on the show tomorrow. 

Coming up next, “HADBALL” with Chris Matthews and at 8:00 p.m. Chris anchors special coverage of the president‘s speech on Iraq. 

That‘s it for tonight.  Thanks for watching.  I‘ll see you tomorrow.

END 

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