updated 5/31/2004 2:43:35 PM ET 2004-05-31T18:43:35

Guests:  Paul Pfingst, William Fallon, John Burris, Jody Gorran, Dan Kinburn, Dr. Stuart Trager, Robert Deutsch, Norm Early, Thomas Burbank, Guy James Gray

DAN ABRAMS, HOST:  Coming up, a trial date is set for the people of the state of the California v. Michael Jackson. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  This as a new report questions whether Jackson‘s employees may have been following the orders of Jackson‘s former attorney Mark Geragos.  Are they saying he may be responsible for any alleged harassment of the accuser?

Plus, a man who had been on the Atkins diet now suing, claiming the fatty foods blocked his arteries. 

And a Texas man found not guilty by reason of insanity in the beating death of his sister, released months later, now accused of killing a 6-year-old in an oven.  He plans to use the insanity defense again. 

The program about justice starts now.  

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, September 13, the tentative start date for Michael Jackson‘s child molestation trial.  At a hearing today in Santa Maria, California, the judge said he wanted to establish a bull‘s eye date to shoot for, but not without the defense objecting.  Their argument, the prosecution has not turned over, they say, much of the evidence that they are entitled to.  The judge said he‘ll consider any delays later. 

Also today argument over whether to reduce Jackson‘s bail currently free on $3 million.  The defense calls the amount exorbitant.  Prosecutors say they fear Jackson might flee the country.  The judge not making any immediate ruling on that.  And new revelations in a report out today from ABC News, accusations that Jackson‘s former attorney, Mark Geragos, may have been involved in an effort to harass and intimidate the accuser and his family. 

The report says that William Dickerman, the family‘s former attorney wrote a series of letters to Geragos, one where he says the accuser‘s mother—quote—“Tells me that while she was at Neverland, Jackson‘s people said they were acting pursuant to your instructions.  Obviously, therefore you are fully aware of what has been going on between Jackson and my clients.”

Some strong accusations considering that five of Jackson‘s employees are now considered un-indicted co-conspirators in an effort to abduct a child, falsely imprison, and extort.  Let‘s bring in our legal team—former San Diego D.A. and MSNBC analyst Paul Pfingst, former Essex County Massachusetts prosecutor Bill Fallon. 

WILLIAM FALLON, FORMER PROSECUTOR:  Hi Dan.

ABRAMS:  He was the chief of the Sex Assault and Child Abuse Unit there and prominent California criminal defense attorney John Burris. 

All right, let‘s—before we deal with the trial date issues, let‘s get right to this issue about Mark Geragos.  Paul, it sounds like what this attorney Dickerman was saying is telling Geragos to call off the dogs. 

PAUL PFINGST, FMR. SAN DIEGO DISTRICT ATTORNEY:   Well, you are absolutely right.  And this is a very difficult area for defense attorneys who are representing a client before there is an accusation, and they go out to try to get statements from witnesses to lock them in to what did or did not happen before there is an accusation filed and sometimes before even there‘s an investigation.  And when that happens, the defense attorney can become essentially a witness in a part of the case, which may be part of the reason why Mark Geragos is no longer in the case. 

ABRAMS:  Well, here‘s what part of this letter, again, from Dickerman from ABC News says.  They say that his client surveilling and they were being surveillanced and photographing the children‘s school, throwing rocks at the mother‘s parents home, leaving disturbing notes, and stalking the family by auto and otherwise” is what Dickerman claims was happening to some of the family.  You know, Bill Fallon, is it still possible that these prosecutors are going to investigate, at the very least, Mark Geragos‘ role in all of this? 

FALLON:  You know Dan, he‘s out of the case right now.  It‘s much easier to investigate him than it ever was before.  You know when they use that term un-indicted co-conspirators, one wonders are they even thinking Geragos?  It would be very unlikely.  But as Paul just said, any pre-indictment and pre-complained issues attorneys act a little differently, but you know with the organized crime attorneys always get into trouble telling their clients and their client‘s friends and relatives what to do and not to do. 

I suppose from what we know it would be unlikely on these facts that he would be indicted as a co-conspirator.  But it‘s going to make things a little dicier from now on and I‘m going to tell you, they‘re watching, they‘re looking for this and they‘re looking for any way they can to discredit Geragos should he turn out to be a witness.  Because I‘m going to tell you I think Geragos is going to be a witness for the defense here given what he no longer the attorney, what interviews he had with the victim or the victim‘s mother.  He‘s going to be a witness and I think they‘re looking to discredit him.

ABRAMS:  And we should also point out, you know we know who the five un-indicted co-conspirators are and Mark Geragos is not one of them.  John Burris, do you expect that Mark Geragos is going to at least be a witness in this case? 

JOHN BURRIS, CRIMINAL DEFENSE ATTORNEY:  Well it certainly sounds like he very well may be.  I would hope that any time he did any witness—interrogation of any witnesses he had a third party present.  It‘s a very difficult situation for all defense lawyers.  We always know that when you interview witnesses at whatever stage that they‘re in, you should never put yourself in a position where you would be the person to impeach someone or attach to someone...

ABRAMS:  How about if you‘re giving the orders? 

BURRIS:  Well, giving the orders does raise a whole question about what are those orders?  Now, one could say one‘s orders for investigation they may not be clear as to what they are, but I think another person looking at that clearly could raise questions about it.  So I don‘t know if Mark really responded to those last letters because if he did not then someone could argue that you must—there is a sort of tacit underlined admission there, so I would trust that he responded in some way to say look, we were just doing an investigation clearly within the bounds that reasonable lawyers do.  So...

ABRAMS:  John...

BURRIS:  ... I don‘t think he is going to get indicted and I don‘t think there‘s enough there yet, but obviously there is a cloud of suspicion that the prosecuting is trying to throw on him. 

ABRAMS:  September 13, John, is the date that is now set.  And the defense team was fighting that basically saying look, we‘re going to need more time.  They haven‘t turned over much of the evidence in this case.  John, just between you and me now, all right, this is just between the two of us, all right, as a defense attorney, you always want, in a case where your client is out on bail, you want a delay, right?  I mean it just—it works to your advantage...

BURRIS:  Well, sure, but in most part you do.  And there is no reason for that not to occur because the kid will get older here.  They won‘t look as innocent.  And more importantly, the accusations here, the longer the period of time is the fuzzier their recollections may be.  There may be some inconsistency with the grand jury and other statements, so of course.  Now at the same time the delay may be good.  I mean that‘s it‘s legitimate. 

That there is a lot of evidence to look at here and so from the defense

point of view, yes, I think and the case will get delayed as far as I can -

·         what I can tell on its face.  But of course you want a delay as long as you can get it and as long as it makes sense.  You never know what may happen in the future. 

ABRAMS:  Paul, as a former D.A., did it frustrate - I mean every high-profile case, every single one, the defense says you are not giving us the evidence we‘re entitled to.  Why are we not getting all the evidence that you are supposed to turn over.  Why does that happen in all these cases? 

PFINGST:  It‘s because what they do.  That‘s the job of a defense attorney.  Is to want more, more, more, more, more...

ABRAMS:  It‘s not that you are slow in turning it over? 

BURRIS:  Hold on...

(CROSSTALK)

BURRIS:  The prosecutors are the ones who caused this problem.

PFINGST:  It‘s not—no, it‘s not a bad thing.  People are coming to the trial from two different angles.  The defense wants to know everything...

BURRIS:  Everything, right.

PFINGST:  ... and they always suspect that they don‘t know everything...

BURRIS:  True.

PFINGST:  ... and the more you assure them that yes, we have given you it all, it‘s still never enough.  That‘s just part of the—being of a criminal trial. 

(CROSSTALK)

FALLON:  But Paul...

(CROSSTALK)

FALLON:  Paul and Dan, let me tell you, as a prosecutor who thought he gave across to everything, I‘m going to tell you, plenty of times I sat there and said well you know that number 375 that I gave you and of course I marked two 374s.  So sometimes it‘s just a mistake, but sometimes it‘s all smoke and mirrors by the defense to get a delay to say look, I didn‘t get every single piece, even though you told them this information because guess what?  It still...

(CROSSTALK)

BURRIS:  No...

(CROSSTALK)

BURRIS:  ... I disagree with both of you on this because sometimes prosecutors make independent decisions as to what they think is relevant in a particular case.  We see that in a high profile...

ABRAMS:  All right.

BURRIS:  ... case going on right now.  So it is true...

ABRAMS:  I...

BURRIS:  ... defense has legitimate arguments to make...

ABRAMS:  ... got to wrap it up.  Very quickly, yes or no, John Burris, will this trial begin on September 13?

BURRIS:  No, I don‘t think so. 

ABRAMS:  Bill Fallon.

FALLON:  Absolutely not. 

ABRAMS:  Paul Pfingst.

PFINGST:  Maybe because Michael Jackson may not want to be sitting next to his co-conspirators if their charged as defendants.  So it‘s a good way to get a severance without making a motion. 

ABRAMS:  There is no chance, I say that this trial will begin on September the 13th.  Paul, Bill and John, thanks a lot.

BURRIS:  Thank you.

(CROSSTALK)

ABRAMS:  Coming up, a man who says the Atkins diet give him heart disease is suing—for what?  We‘ll talk to him.

Plus, investigators focus on five people in the disappearance of that 19-year-old Brigham Young student in Oregon.  We are going to check in with the local police.

And get this story.  He killed his sister with a bar bell, was found not guilty by reason of insanity, goes to a mental institution for four months.  Now he‘s on trial again for killing a 6-year-old boy in an oven.  Guess what his defense is?  Insanity again.  I‘ll talk to his lawyer. 

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, a Florida man is suing the makers of the Atkins diet.  He says two years on the diet gave him heart disease.  Is this just another example of the problem with our legal system?  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  In our litigious society, you‘ve got to believe it was bound to happen.  A man suing the company responsible for the Atkins diet.  Before we get both sides of that story, including the person suing, here is NBC‘s Tracie Potts. 

(BEGIN VIDEOTAPE)

TRACIE POTTS, NBC NEWS CORRESPONDENT (voice-over):  Fifty-three-year-old Jody Gorran claims a CT scan showed his heart was totally healthy just six months before he started the Atkins diet.  Two years later, he had dangerously high cholesterol and this angiogram found a blocked artery that required surgery.  He was only trying to lose eight pounds.  Gorran claims the low-carb, high protein Atkins diet nearly killed him. 

JODY GORRAN, SUING PROMOTERS OF ATKINS DIET:  I relied upon him and had no sense that I might have just made a deal with the devil. 

POTTS:  Millions of Americans have signed on to the plan moved by claims that they can eat almost limitless amounts of high-fat foods and still lose weight by limiting carbohydrates including breads, fruits and vegetables.  Atkins promoters call it an invaluable tool in fighting obesity. 

DR. STUART TRAGER, ATKINS MEDICAL DIRECTOR:  But in fact we‘re not seeing studies that are showing its dangers.  The studies show that it‘s safe and that it works. 

POTTS:  But some experts say the real problem is a lack of reliable science. 

DR. STEVE NISSEN, THE CLEVELAND CLINIC:  We have millions of Americans that are jumping on the latest bandwagon whenever a new book is published with a diet without any scientific basis for knowing whether that diet is healthy or unhealthy.  And given that lack of knowledge, there is real danger here. 

POTTS:  Gorran is asking for minimal damages, but he is asking the court to stop Atkins from selling its products without a warning that the diet could be dangerous. 

(on camera):  The group behind this lawsuit is the Physicians Committee for Responsible Medicines headquartered here in D.C.  The Atkins people claim they are really an activist animal rights organization promoting a strict vegan diet and that they‘re using this lawsuit to further their agenda. 

Tracie Potts, NBC News, Washington.

(END VIDEOTAPE)

ABRAMS:  All right.  Thanks Tracie.  Joining me now is Jody Gorran, the Florida businessman who is suing the maker of the Atkins diet, his attorney, Dan Kinburn, from the Physicians Committee for Responsible Medicine and medical director for Atkins Nutritionals and chairperson for the Atkins Physicians Council, Dr. Stuart Trager.  Thank you all very much for coming on the program, appreciate it.

UNIDENTIFIED MALE:  Thank you.

(CROSSTALK)

ABRAMS:  Mr. Gorran, let me start with you.  Were you completely unaware when you went on this diet that higher cholesterol could be a possible side effect of this diet? 

GORRAN:  No.  I was aware that that could be the case.  However, the Atkins people kept saying that the absence of carbohydrates, an elevated cholesterol level or elevated saturated fats in the blood, in the body would not be a problem.  And unfortunately they had no science to back it up. 

ABRAMS:  But, Mr. Kinburn, if your client knew that there was this risk and you know you read the Atkins material and it says make sure you consult with your doctor, you know if your cholesterol gets high, think about going on a lower fat diet, you know it seems to me that this may fall into the category, apart from the science one way or the other, that this lawsuit may fall into the category of just another one of those cases where the legal system is being abused. 

DAN KINBURN, ATTY FOR CLIENT SUING ATKINS NUTRITIONALS:  Well, no.  In this case, the Atkins book is very clear.  The Web site has—says that if your cholesterol goes up on the diet, then just follow it more strictly, but follow it you should.  And that‘s what Dr. Atkins said.  Dr. Atkins said that he knew that one-third of all dieters, people on his diet would have their cholesterol go up.  And he said that if that happens, you can try a low-fat version if you want, but if you don‘t like it, you should go back to the high-fat version and you should continue doing it while taking vita-nutritional supplements and that‘s just crack advice and when you sell product using crack advice and the product is defective as a result, then there‘s liability in this country...

ABRAMS:  But the problem is there‘s no evidence.  I mean I understand that‘s your position and you will bring in experts as the other side will bring in experts as to whether the—you know if this ever makes it to trial—which I have to tell you I don‘t think it will—but if it does, it will be a battle of the experts on both sides as to the science of it.  I‘m still not clear, though, if your client knows that this there‘s the possible risk of higher cholesterol and there are warnings about what to do if your cholesterol goes up, on the Web site, how there‘s liability is the legal matter.

KINBURN:  There are not the warnings.  If there were adequate warnings, this case would never have been brought.  Instead of giving the warnings, what Atkins did was give reassurances.  If your cholesterol goes up, just stay on the diet, get your carbohydrates even lower, but shovel in those bacon cheeseburgers as much as you want. 

ABRAMS:  Dr. Trager, what do you make of that?

TRAGER:  Boy, I‘ll tell you Dan, I think you‘ve got the message right on the head here.  The fact that this individual and his attorney continue in name calling and sort of the—perpetrating the myths and misconceptions about what Atkins is all about is really hurtful and I think it does a tremendous disservice.  I think it does clog up the legal system rather than the coronary arteries.  And I think it‘s a shame.  This is truly, truly...

GORRAN:  You absolutely clogged up my coronary arteries. 

TRAGER:  This is truly a frivolous case...

(CROSSTALK)

TRAGER:  This is truly a frivolous case. 

ABRAMS:  Respond to some of the comments...

TRAGER:  I would love to.

ABRAMS:  Yes.  Go ahead.

TRAGER:  It‘s very clear to anyone reading this passage that this individual is talking about that Dr. Atkins warns people very carefully about the possibility.  Now, it‘s not one-third.  It‘s less than one-third in terms of what it says in the passage, and it‘s very clear that the message is you should check your cholesterol level before you start, you should have it followed while you are on the program. 

GORRAN:  But it never says to get off it...

TRAGER:  And if it goes up...

(CROSSTALK)

TRAGER:  And if it goes up—listen it really does.  If it goes up, what it says is you can try vita - you can try supplements and—or you can try to lower the fat intake.  Dr. Atkins outlines a program by which individuals who are being responsible follow their cholesterol, they can change the fat content, they can then retest and should retest and he makes that point...

GORRAN:  Right...

TRAGER:  ... to make sure that it comes down.

GORRAN:  ... always recount, but never...

TRAGER:  Listen...

GORRAN:  ... get off the diet. 

TRAGER:  ... why do you think you should retest...

GORRAN:  You are a liar, Mr. Trager...

(CROSSTALK)

GORRAN:  ... a liar.  You‘re a paid... 

(CROSSTALK)

ABRAMS:  All right, hang on one at...

(CROSSTALK)

TRAGER:  And I‘m—number one, I‘m a practicing physician...

GORRAN:  You‘re a paid shell. 

TRAGER:  I‘m a practicing physician and I practice the Atkins approach.  I‘ve used it myself.  My family uses it and I don‘t appreciate the name-calling.  I think we need to...

GORRAN:  We‘re talking about...

(CROSSTALK)

GORRAN:  ... one-third of the people on the Atkins diet. 

(CROSSTALK)

ABRAMS:  Let me let...

(CROSSTALK)

ABRAMS:  Mr. Gorran, respond to the substance.  Go ahead. 

GORRAN:  Right.  We‘re not talking about the vast majority of people for whom the Atkins diet might be useful.  We‘re talking about the one-third of people that Atkins knew would have an increase in their cholesterol, which would make them prone to heart disease. 

ABRAMS:  But, why isn‘t it their responsibility to check...

GORRAN:  Because they said...

ABRAMS:  ... and to go to the doctor. 

GORRAN:  ... they said specifically that you are protected by not eating carbohydrates. 

TRAGER:  No, Mr. Gorran...

GORRAN:  If they had not said that...

TRAGER:  ... what the literature says is...

GORRAN:  If they did not say that...

ABRAMS:  Let Dr. Trager respond to what it says...

(CROSSTALK)

ABRAMS:  Hang on.  Hang on. 

(CROSSTALK)

ABRAMS:  Dr. Trager...

(CROSSTALK)

ABRAMS:  ... respond to that allegation specifically. 

TRAGER:  What the books say—what the information says is that many people are helped.  If your cholesterol does not respond the way you would like it to, the way your doctor would like it to, then you should look for an alternative.  It‘s very clear... 

GORRAN:  It does not say that...

TRAGER:  It‘s very clear...

ABRAMS:  Let me...

GORRAN:  We‘ll let a court of law determine that.

ABRAMS:  Very quickly, let me bring in Mr. Kinburn one more time.  You know it seems when I read your papers that there seems to be an allegation that meat in general can be a problem.  And you know, we know what your organization does.  I happen to be a vegetarian myself, but it‘s still, from reading your papers, it seems to me that you are saying meat is the problem as much as you are saying that Dr. Atkins‘ diet is the problem.

KINBURN:  Well, obviously the problem with the Atkins diet is that it encourages people to eat the unhealthiest foods in the largest quantities.

TRAGER:  Except...

(CROSSTALK)

TRAGER:  ... when we look at science, science doesn‘t validate that point.

KINBURN:  That‘s just not true...

TRAGER:  We‘ve now seen 27 studies...

KINBURN:  We are relying...

TRAGER:  We‘ve now seen 27 studies...

KINBURN:  We are relying on the Atkins‘ studies themselves. 

TRAGER:  Yes...

KINBURN:  The Atkins studies...

TRAGER:  ... studies that show the people...

KINBURN:  ... that they put out two weeks ago, showed exactly what Dr.

Atkins always knew...

TRAGER:  But...

KINBURN:  ... which is that 30 percent of people on this high fat diet...

ABRAMS:  All right...

KINBURN:  ... get high cholesterol. 

ABRAMS:  I‘ve got to wrap this up.  I think you‘ve got a real uphill battle here Mr. Kinburn and Mr. Gorran, but I do appreciate your time.  And Dr. Trager, thank you for...

TRAGER:  Thank you.

(CROSSTALK)

TRAGER:  ... the science didn‘t change...

KINBURN:  Thank you Dan.

TRAGER:  ... just because of this report...

ABRAMS:  Got to wrap it up.  All right.  Thank you.  Sorry about that. 

We‘re going to take a quick break, be back.  The missing Oregon...

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  Now to the latest in the search for a missing college student in Oregon.  Today investigators searched a nearby gravel pit for clues in connection with the disappearance of Brigham Young University student Brooke Wilberger.  They came up with nothing, but today police named five people of interest. 

(BEGIN VIDEO CLIP)

LT. RON NOBLE, CORVALLIS, OR POLICE DEPT.:  Knowing the history, past histories, the investigation into the people, and part of that includes history with women, which (UNINTELLIGIBLE) Brooke‘s description. 

(END VIDEO CLIP)

ABRAMS:  She was last seen Monday morning cleaning light pole covers outside the apartment complex that her sister and brother-in-law manage.  A bucket of water and cleaning tools left behind.  Brooke‘s purse, wallet and car keys were inside the apartment. 

For the latest on this, I‘m joined now by Captain Robert Deutsch, spokesperson for the Corvallis Police Department.  Captain, thank you very much for taking the time to come on the program. 

CAPT. ROBERT DEUTSCH, CORVALLIS POLICE DEPT.:  Thank you Dan.

ABRAMS:  All right, so give us a sense of how these five people—I mean is there any evidence that these five people were specifically or one of these five people was specifically linked to this case or are these five people who would be of interest if there were any young woman missing in the area? 

DEUTSCH:  I think the second option is much more correct.  We don‘t have any direct evidence.  What we did is we threw a big net over the entire county and Lynn County, the neighboring county and we determined, got a list of all the sexual predators, offenders, those that are on the state registry and others who may not be on the registry that are known to police who have the propensity to commit this kind of crime, through a lot of hard work over the last four days, a tremendous amount of effort. 

We‘re narrowing the field down to fewer and fewer, trying to get it to less than a dozen.  And these are people that we‘re looking at to make sure that they have an alibi.  If they don‘t have an alibi, they stay on the list.  The number six is probably fairly accurate.  I‘m using a number less than 12, between six and 12.  Some come on the list, some go off the list depending if they have a good alibi.  We think that—it‘s the best place to start.  We had to start some place and that would be with our local offenders.  That makes the most sense. 

ABRAMS:  And you are convinced, are you not, that she was taken against her will from this area? 

DEUTSCH:  We are absolutely convinced.  You know Dan, I hope we‘re proven wrong and she walks back in with some kind of reason, but that does not seem to be the case.  She left her shoes behind, kind of array in a parking lot, one of them was broken, inexpensive sandals.  You have gotten the background obviously already on this young girl.  She is a remarkable young girl from a remarkable family.  Honor student at BYU, honor student in high school, athlete...

(CROSSTALK)

DEUTSCH:  ... a tribute to the community.

ABRAMS:  And this is a girl who didn‘t sort of party.  I mean this is a non-drinking, non-partying kind of girl, which also comes into play. 

DEUTSCH:  This...

ABRAMS:  Yes.

DEUTSCH:  This is a girl who was really true to her Mormon religion, doesn‘t drink, doesn‘t party, one boyfriend. 

ABRAMS:  All right.

DEUTSCH:  Her boyfriend is on a mission in South America right now.

ABRAMS:  I‘m almost out of time.  I want to make sure that we get that number up.  I mean that‘s why we—the police, you know they need your help.  If you have any information on the disappearance of Brooke Wilberger, call the police department tip line at either 877-367-2270 or 541-766-6989. 

Captain, thanks for taking the time to come on the program...

DEUTSCH:  Dan, do you have like one second... 

ABRAMS:  Actually...

(CROSSTALK)

ABRAMS:  ... out of time, but we‘ll put it on our Web site, talk to our producer.  I‘ve got to wrap it up.  We‘re back...

DEUTSCH:  Thanks Dan. 

ABRAMS:  ... in a moment. 

DEUTSCH:  Thank you.

ABRAMS:  Sorry.

(COMMERCIAL BREAK)

ABRAMS:  We‘ll bring you more on the story we brought to you earlier in the week, a breaking story involving the Kobe Bryant case, but first the headlines.

(NEWS BREAK) 

ABRAMS:  We are back.  All right, I said it to you last night.  For all those of you who were watching the program, you know we were going to have this segment.  We wanted to bring our producer/correspondent Michelle Hofland who has been covering the Kobe Bryant case back on tonight to be very clear on the news that she broke on this program earlier in the week.  Michelle reported the defense team may have some explosive evidence—I should warn you some of this is graphic.

Michelle‘s sources say that lab results indicate fresh sperm was found on the alleged victim‘s body when she was given a rape examination at the hospital.  It was not Bryant‘s.  With this evidence the defense hopes to show one, that the accuser lied to detectives about when she last had consensual sex prior to the alleged incident with Bryant.  And two, that she might have had sex with someone else after leaving Bryant‘s hotel room, but before arriving at the hospital for the rape exam. 

Now last night on the program, former Denver D.A. Norm Early questioned Mitchell‘s report—and we don‘t have it.  But you know what?  We are going to have Norm in a minute who will say it.  I said I was going to get to the source of this information, and so I have. 

All right, NBC News producer/correspondent Mitchell Hofland joins us and I should point out I was going to wait to introduce Norm, but he is sitting next to Michelle there at the studio because we were going to have the sound bite from Norm.  You know what?  Let me do this because we didn‘t have Norm—let me ask our camera to shift over to Norm Early for a moment.  I‘m going to come right back to Mitchell.  We‘ve laid out what her report was.

Norm, on this program last night, you were saying what about this report? 

NORM EARLY, FMR. DENVER DISTRICT ATTORNEY:  I was saying that first of all, fresh sperm could not have been found by the defense lab because fresh sperm, as Dr. Cyril Wecht said, is an in-artful term.  You determine the freshness of sperm by the motility of that sperm or by the separation of the head and the body.  In this case there is no way that a laboratory in California could have determined that this was fresh sperm because it was not motile when the CBI lab looked at it.  It certainly was not motile five months later.  I also heard in this report that it was the CBI‘s information that was revealing that this was fresh sperm, then I heard it was the defense lab that was revealing it, then I was hearing that it was...

ABRAMS:  Well...

EARLY:  ... sperm taken from her leg and then I was hearing it was sperm taken from her panties...

(CROSSTALK)

EARLY:  I‘m not exactly sure...

ABRAMS:  All right...

EARLY:  ... what this report...

ABRAMS:  Well...

EARLY:  ... was supposed to be saying...

ABRAMS:  ... I don‘t know why it was so confusing to you Norm, but let‘s get to the source of it right here with Mitchell Hofland.  Michelle, I want to ask you two questions because we had a whole debate about it.  First of all, what laboratory does your information indicate that this came from?  Is this a defense lab?  Is this a defense test that was done? 

MICHELLE HOFLAND, NBC NEWS CORRESPONDENT:  What I understand, according to my sources, what they are telling me is that this is information that comes from the state crime lab, the Colorado Crime Lab.  And this kind of makes sense with some of the information that we know that right now the prosecution is going to another lab, an outside lab to get these same tests retested.  So why would they go to another lab for DNA test results if they were happy with what they got from the crime bureau—the Colorado Crime Bureau‘s own lab? 

ABRAMS:  Now, is this a DNA...

(CROSSTALK)

ABRAMS:  ... test or is this a swab—do you know Michelle, if this is a DNA test or a sort of swab test and if those two are different? 

HOFLAND:  What I understand is that it‘s the DNA test that they are having redone.  But you know what I want to make clear too, it‘s not just what my sources are telling me that the defense believes that this evidence will prove that she had fresh sperm on her and then possibly lied to detectives, but also let‘s take a look at something.  Let‘s take a look at the defense motion for discovery.  This was filed back in March. 

It says—quote—“Regarding CBI‘s testing of body swabs taken from circular spots on the accuser‘s thigh and on her perineum at the hospital”.

Those are circular spots.  As far as I know, there is no such thing as

re-liquifaction (ph).  So there‘s no way that if she had old dirty

underwear on, that sperm, dried sperm could have jumped off of them, re-liquified and jumped on to her thighs into a circular pattern.  That‘s what my experts are telling me.  It just doesn‘t make sense. 

ABRAMS:  And one more question before I get back to Norm.  Is the term that was used to you—and again, I apologize for the graphic nature of this, but the term was fresh?  I mean because we were talking to Dr. Cyril Wecht about motility and other issues like that.  What exactly did you hear about what this is? 

HOFLAND:  It was the word fresh.  The word motile didn‘t come up in the conversation, but it was specifically the word...

ABRAMS:  OK.

HOFLAND:  ... fresh sperm and semen.

ABRAMS:  All right, Norm, go ahead.  So now we understand exactly what Mitchell‘s report is and your response is what? 

EARLY:  First of all, in trying a criminal case, whenever the defense lab comes up with something that is different from what we originally...

ABRAMS:  It‘s not the defense lab, Norm. 

EARLY:  Dan, there is no concern on the prosecutor‘s part about what CBI came up with.  If it had been that concern, this case would never have been filed, for one.  But I know that they are not concerned with the CBI report.  The issue here is what the defense lab found and what the defense lab interpretation of that evidence is.  And whenever there is a conflict between what CBI found and the defense lab found...

ABRAMS:  I‘m with you...

EARLY:  ... it is wise...

ABRAMS:  Right.

EARLY:  ... to seek a second opinion. 

ABRAMS:  That‘s right and I...

EARLY:  Now...

ABRAMS:  ... agree with you on that.  I have no dispute with you on that at all.  The problem is that Mitchell‘s report is indicating that this is coming from CBI.  What you are saying is you don‘t believe that. 

EARLY:  The CBI report—if that had been in the CBI report, it would have come out at the preliminary hearing, Dan...

ABRAMS:  No, no...

EARLY:  Yes...

ABRAMS:  ... they didn‘t have the report yet, Norm.  It didn‘t come out yet in the preliminary hearing.  None of the reports came out at the preliminary hearing.

EARLY:  At the preliminary hearing, it was discussed that there was sperm on her body that was not Kobe Bryant‘s sperm. 

ABRAMS:  That was the crusted...

EARLY:  Winters...

ABRAMS:  Yes.

EARLY:  ... testified to that.  Well, I mean if they got that test they would have the test on the other sperm as well, Dan. 

ABRAMS:  All right, Mitchell, what about that? 

HOFLAND:  They did not test it.  We have been hearing for so long during this whole thing, we‘ve heard the judge ask the defense, OK, so—the prosecution, excuse me—why haven‘t you done this testing?  It took from the time—from July up until, I believe—I may be off by a little bit—I believe the end of February, beginning of March before they actually did the DNA testing.  And at that time it was at the CBI and it was with, I believe, the defense and the prosecution there at the lab when this testing was being done.  It wasn‘t done for the first time for a long time and this was a huge fight that‘s been going on in the courtroom. 

ABRAMS:  Norm...

(CROSSTALK)

ABRAMS:  Norm gets the final word—I usually—Norm and I usually agree on all these cases. 

(CROSSTALK)

ABRAMS:  All right.  Norm gets the final word.

EARLY:  I think it‘s incredible to believe that they tested the crusted sperm and they had time to do it, but they didn‘t test the sperm—any of the sperm that was found on her body.  I mean if they conducted the tests, they were able to ascertain that it was sperm and that it was not Kobe Bryant‘s sperm and that was testified to in the preliminary hearing.  They would have had time—the same amount of time to test any other kind of sperm that they found on her body.  It just doesn‘t make sense...

(CROSSTALK)

EARLY:  ... it‘s a defense theory and that‘s all it is. 

ABRAMS:  All right, at least we were able to clarify this issue.  I just—I promised my viewers last night that we would get to the source of it.  Mitchell is the source and Norm sticks by his guns.  Thanks to both of you for coming on the program. 

EARLY:  Thank you Dan.

HOFLAND:  Thank you Dan.

ABRAMS:  A murder suspect will likely plead not guilty by reason of insanity, again.  After all, it worked the first time.  You heard me right. 

And my “Closing Argument”—memo to the Department of Justice, time to stop the turf war, allow the Homeland Security Department to deal with well, homeland security.

(COMMERCIAL BREAK)

ABRAMS:  Question—can you be found not guilty by reason of insanity twice?  Six years ago a Texas jury found Kenneth Lee Pierott insane when he killed his sister with a dumbbell, not guilty.  Pierott was institutionalized for about four months and then released.  Now police in Beaumont, Texas say Pierott has killed again.  He is accused of asphyxiating 6-year-old Tre-Devin Odoms, his girlfriend‘s son by putting him in an oven with the gas on and they say he admitted as much when his father told him he needed his medication. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  He said not only am I not going to take the medicine, he said I just killed a baby in Beaumont and put him in the oven. 

(END VIDEO CLIP)

Pierott‘s motive, according to the police, probable cause affidavit says that Pierott told his brother Tre was draining the life out of his seed—referring to his own son Jacory (ph) -- and that he needed to kill Tre so that Jacory (ph) could breathe.  But if he is found not guilty again, won‘t this case become the poster child for those trying to end the insanity defense all together? 

Joining me now is Kenneth Lee Pierott‘s lawyer, Thomas Burbank, and former Texas state...

(CROSSTALK)

ABRAMS:  ... prosecutor Guy James Gray.  Thank you both very much for taking the time to come on the program.  Appreciate it. 

All right, Mr. Burbank...

UNIDENTIFIED MALE:  Thank you.

UNIDENTIFIED MALE:  Thank you.

ABRAMS:  ... what do you make of—I mean this seems to me—and I understand that when it comes to the facts of these cases, you are going to say that it‘s clear that he didn‘t understand right from wrong, that you‘re going to say he may not even be competent to stand trial.  But aren‘t you concerned that if you were to win again that this would be the cause left that would lead people to say it‘s time to end the insanity defense? 

THOMAS BURBANK, ACCUSED KILLER‘S ATTORNEY:  I don‘t believe so.  And I don‘t think that the people or the public should be able to look at it that way.  You know, if you are mentally ill or have a mental disease, you have that for all your life.  And if the person wasn‘t on medication, then you know does it come back or does it stay? 

ABRAMS:  But you know what people are going to say...

BURBANK:  But I don‘t think...

ABRAMS:  They‘re going to say he never should have been released in the first place. 

BURBANK:  And may be absolutely right.  He may not or should not have been, but he did and those are the facts that you have to deal with today.  And if he was let go, then let someone else answer for it, but not give away someone‘s valuable rights, especially under the Constitution for the right of insanity. 

ABRAMS:  Now, in ‘98, I believe it was, he was tried for forgery and yet, he didn‘t claim insanity at that point, correct? 

BURBANK:  That‘s correct.  The doctor found after evaluation that he was sane at the time.  But I will tell you he was probably on his medication at that time. 

ABRAMS:  Yes.  Mr. Gray, I‘ve got to tell you, I think that, you know, if Mr. Burbank succeeds in this case, that this is going to become the case that everyone is going to cite to say you know what, the insanity defense as we know it has to end. 

GUY JAMES GRAY, FMR. TEXAS PROSECUTOR:  I think you are probably exactly right.  It‘s clear to everybody that this guy can‘t be out on the street again.  Whether it‘s in the criminal system or whether it‘s in the civil system for insanity, that‘s the question. 

ABRAMS:  Mr. Burbank would say, as you know, that he is not saying he should be out on the street.  He would say he needs help and he needs to be in a mental institution.  What would you say to that? 

GRAY:  I‘d say the primary function of the jury and the prosecutor in a case of this nature is to make sure this man is not allowed to kill another victim.  If the civil system won‘t hold him, then the prosecutor has no choice and I think the jury will actually have no choice, they have to lock him up in the criminal system. 

ABRAMS:  And do the prosecutors, Mr. Gray, believe that he is insane? 

GRAY:  No, the prosecutors believe that he was sane at the time of this particular offense. 

ABRAMS:  And why do they think that he did it then?  They just think he was an evil person who put a child in an oven.

GRAY:  There is such an element of cruelty and meanness here that that‘s one of the reasons that they think he knew what he was doing.  This case has a motive to it.  He fled the scene of the crime as soon as he had talked to his wife about it.  They believe the facts of this case will show that he knew the difference between right and wrong and that‘s all the definition of insanity is in Texas. 

ABRAMS:  Mr. Burbank, were you his attorney the first time, in the first case? 

BURBANK:  No, I wasn‘t and we‘re still in the discover process at this point and we‘re going back from square one and that‘s the date of his birth, trying to get the records to see what his pattern has been ever since.  Now, I have only been his attorney since this last incident, you know, within the past couple of months.  But, you know, of course we have a differing opinion between the prosecutor and myself and we believe that he is probably insane because of his medical past, because of what he has done, and what his belief in even at this time.  You know if he is not insane, he goes to prison, if they find him guilty.  If he is insane, then he should be hospitalized and treated.  I mean that‘s the way the system should work. 

ABRAMS:  You are not going to challenge that he did this, though, correct? 

BURBANK:  Well, at this point I‘m not agreeing, but I‘m assuming that the facts hopefully are—you know those are what the facts are and that‘s the assumption that I‘m going to have to go on until the time of trial because it is the state‘s burden.  It‘s beyond the reasonable doubt and being in this business long enough, you just sometimes don‘t realize or don‘t know what the state is going to do. 

ABRAMS:  Yes and—I don‘t blame you at all, Mr. Burbank.  You know look, you‘re a lawyer.  You come into a case.  You evaluate the evidence.  The evidence you seem to believe is—can strongly convince a jury that possibly this guy was insane.  But I‘ve got to tell you, as a sort of bigger matter, I‘m telling you, if this guy is found not guilty again, this is going to be the case that everyone is going to cite, the guy who was released who went back to trial and is back in a mental institution.  But you know that‘s not a legal question.  That‘s more a policy one.  And Mr.  Burbank, Mr. Gray, I thank you both very much for coming on the program. 

GRAY:  Thank you. 

BURBANK:  Thank you. 

ABRAMS:  Coming up, you‘ve all heard about the communication problems and turf wars between the CIA and the FBI prior to 9/11.  The government says it‘s getting better.  But it‘s starting to sound like new problems are popping up.  It‘s my “Closing Argument”...

(COMMERCIAL BREAK)

ABRAMS:  Coming up, your e-mails on the very important issue of whether it should be illegal to return underwear to department stores.  Stay with us. 

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—how many times have we heard that one of the biggest problems before 9/11 was communication problems and turf wars between the CIA and FBI.  And we‘ve heard repeatedly now that the relationship has significantly improved over the past few years.  Now “The Wall Street Journal” reporting that this week‘s warning from the attorney general of a possible summer terror attack has—quote—“aggravated simmering tensions between the Department of Justice and the Department of Homeland Security.”

Apparently Homeland Security Secretary Tom Ridge got only minimal notice of the attorney general‘s plan to warn of a possible attack.  Homeland Security officials decided not to raise the terror threat level because as Asa Hutchinson, who was on the program told us, they didn‘t feel the information was new or specific enough to warrant a raise in that level.  Now there are already questions about what purpose these warnings served, if there‘s really nothing people can do.  To have dissension on top of that makes it much more unsettling. 

I‘m certain they‘re looking at the same intelligence and just interpreting it differently.  That happens.  But if it goes to avoid fear and avoid panic, there must be one voice speaking to the public.  Let the FBI release the pictures of possible terrorists we need to be looking out for.  But when it comes to the threat of an attack and the risks to the public, isn‘t that exactly what the Homeland Security Department is supposed to do?  The attorney general should have left this one in their hands. 

I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  Last night in my “Closing Argument” I addressed an important issue.  I expressed shock that department stores can resell returned underwear.  A New York City council member has proposed a law to fine retailers who sell used undies.

From Scottsdale, Arizona, Sam Marshall.  “Silly person, you wash your veggies before you eat them.  You wash your hands before eating.  Well you wash your intimate apparel before you wear it.  It‘s known as personal hygiene.”  Thank you Sam.

And Karen Schoonveld from Springfield, Missouri, “Yes I agree it is the wrong thing to do and if the stores are that money hungry that it takes a law to stop doing them from doing it, then so be it.  But Dan, didn‘t your mother ever teach you to wash them before you wear them?”

Listen, to all of you who said you‘re supposed to wash first, I ask you this.  How many of you would buy underwear at a vintage clothing store, for example?  It‘s just sort of gross. 

Finally Maureen in New York says I am ignoring one crucial point.  She says, “I agree with you that it is creepy to think the underwear we buy may have been previously worn.  However, if there is a law forbidding us to return underwear, what will real women do with the hundreds of dollars of Victoria‘s Secret lingerie our men buy for us for the holidays?  You know, the skimpy kind made with very little thread that are designed to fit the six foot tall, 110-pound models in the magazines.”  Maureen, that‘s a good point.  Thank you. 

All right, before we go, I want to return for a moment to the disappearance of the Brigham Young University student, Brooke Wilberger.  Earlier in the program, our guest, Police Captain Rob Deutsch wanted to add one more point about the search.  I was out of time.  I had to cut him off.

I said we would put on it our Web site.  This is important and so I thought we should take some time out of the end of the show where we can do it to finish what he was talking about.  He has told us that there is now a $5,000 reward being offered for the safe return of Brooke or any information that might lead to her arrest—sorry—that might lead to the arrest of someone connected to her disappearance. 

Again, police need your help.  If you have any information on the disappearance of Brooke Wilberger, call the Corvallis Police Department tip line at either 877-367-2270 or 541-766-6989 and I apologize to the captain for having to have cut him off there, but at least we got the information out now.

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

Next week—well that‘s tonight, Tom Selleck.  Come back to me though.  Next week, we‘re going to be covering the Scott Peterson case.  I‘m going to be in Redwood City.  We‘re going to have a full hour preview on Monday of what‘s coming up in the case.  We got an all-star legal panel on that show.  And then live from the opening statements in the Scott Peterson case.  That‘s on Tuesday. 

Thanks for watching.  Have a great Memorial Day weekend.  And, you know let‘s—I do this in my “Closing Argument” on Monday, but let‘s take a moment to really think about what Memorial Day means this weekend.  I‘m going to.  And watch “HARDBALL” tonight coming up. 

Thanks for watching. 

END

Copy: Content and programming copyright 2004 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2004 FDCH e-Media, Inc.  (f/k/a Federal Document Clearing House Inc., eMediaMillWorks, Inc.), ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and FDCH e-Media, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

Discuss:

Discussion comments

,