updated 8/2/2004 9:40:53 AM ET 2004-08-02T13:40:53

Guest: Larry Pozner, Marcia Levy, Norm Early, Jennifer Dobner, Giovanni DiStefano, Kirsten Johnson, Katy Chevigny

DAN ABRAMS, HOST:  Coming up, Kobe Bryant‘s lawyers asking more questions about why the alleged victim got nearly $20,000 from a victim‘s compensation fund. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  And the judge in the case apologizes to the young woman‘s family for releasing a document with her name on it, again. 

Plus, the latest in the search for Lori Hacking.  Police remove crates of evidence from the Hacking‘s apartment and focus their search on a city dump. 

And we‘ll talk to one of Saddam Hussein‘s lawyers about the defense, a lawyer who also represented another dictator. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First on the docket tonight, Kobe Bryant back in court.  This, coming on the heels of the court accidentally doing it again, releasing the alleged victim‘s name on the court Web site again. 

NBC‘s Mark Mullen is outside the courthouse again.  Mark, the judge actually apologized to the family today?

MARK MULLEN, NBC NEWS CORRESPONDENT:  Pretty unusual, isn‘t it Dan?  But what is also pretty unusual, quite frankly, is for a court such as this to screw up this many times in terms of violating the privacy of the accuser.  Here‘s what happened.

On at least two different occasions, the court Web site published the name of the accuser, basically putting it out there temporarily before the mistake was discovered for all of the public to see.  Last month was even worse.  A court reporter mistakenly sent transcripts of a two-day, closed-door hearing at which they were discussing many things including very private matters such as the accuser‘s sexual history, sent that transcript to seven different news organizations which had all kind of information and of course the accuser‘s name as well. 

Here is the apology that Judge Terry Ruckriegel made in court today.  In part it says—quote—“For all of those who come through these doors, victims and defendants alike whose names are never known and never sought, I can only assure you that I have learned lessons from these mistakes and that we will give our best human effort not to let it happen again.”

Terry Ruckriegel speaking.  By the way, an attorney for the accuser essentially reacted to all of that basically said it just didn‘t do enough good to undo some of the extra exposure and pressure and uncomfortability, if you will, that the accuser feels already going into this trial, which is scheduled to begin at the end of next month, jury selection anyway on the 27. 

Meantime, the rest of the day was spent in closed-door session discussing that very secret transcript, which was leaked—which was accidentally sent out to all of those reporters.  Basically the Colorado State Supreme Court and the U.S. Supreme Court directed this judge that once all of this information got sent to the seven organizations not to start some big First Amendment battle. 

They said release the information, but you do have permission to basically redact it.  A fancy word of saying basically getting a black sharpie and marking out some of the more sensitive bits of information. 

That‘s what they were doing today.  We expect those transcripts, Dan, probably to be released next week, perhaps Tuesday. 

ABRAMS:  Mark Mullen, thanks a lot, appreciate it. 

Also this week with pressure from both the Colorado and U.S. Supreme Court, as Mark said, the judge released portions of the transcripts accidentally sent out to the court late last month.  Now the most sort of damming portion of the transcript, the most salacious details still kept under seal about the alleged victim‘s sexual history.  But one point that was made public, allegations about the amount of money the alleged victim has received from the state‘s crime victim‘s compensation fund. 

Defense attorney Pamela Mackey argued—quote—“Ms.—name deleted

·         has profited to an enormous amount.  Twenty thousand dollars, I would suspect to most people in this county is a lot of money, most of our jurors, and she has done that on the basis of a false accusation - allegation and has persisted in that false allegation.”

My take—the defense in this case has some very strong arguments, this is not one of them.  The notion that she would file false charges in order to receive $17,000 for mental health counseling is well just kooky.  It‘s not like she can go on a spending spree with the cash. 

Let‘s bring in our Colorado legal team—former Denver district attorney, Norm Early, Colorado criminal defense attorney Larry Pozner, and Marcia Levy, professor at the University of Denver College of Law.

All right, Larry, look, I‘m saying that the defense has some strong arguments; this is not one of them. 

LARRY POZNER, CRIMINAL DEFENSE ATTORNEY:  I agree.  They have been raining heavy, good evidence on the prosecution case.  This is minor.  This was probably an argument that Pam Mackey was making for discovery of the materials or use of the materials and was not an argument she was getting ready to make to a jury.  So you know, where does this fit into the whole scheme?  It‘s interesting, but it‘s a sidelight. 

ABRAMS:  All right.  So if Larry Pozner tells us it‘s not a big defense issue, we can put it aside and move on with that one.  Professor Levy, the issue of releasing this woman‘s name accidentally, again and again and again is just—someone asked me this morning on the “Today” show, I was asked you know to explain it and I said I can‘t.  I don‘t know what to say. 

MARCIA LEVY, UNIV. OF DENVER, COLLEGE OF LAW:  Well, there is really not much that you can say Dan.  I think that this is an accident.  It‘s hard to imagine how this accident can keep happening over and over, particularly as we saw early on in the hearings in this case that the court went to great lengths to protect the privacy of this alleged victim.  And so how by accident suddenly we‘re hearing so much about her and hearing her name is hard to understand.  But I think it‘s a make mistake.  The court is clearly embarrassed, the court has apologized, and I think it‘s one of those things that we‘re all going to have to move on from and look at the more important issues in the case. 

ABRAMS:  All right.  Norm Early, the—that sensitive document that has not been released yet, that the lawyers were arguing over today as to what should be released and what should not.  Harvey Levin from “Celebrity Justice” has seen it.  He‘s been saying publicly that if you see that document it could change the way you look at this case.  How much of it do you think that the judge is going to release publicly? 

NORM EARLY, FORMER DENVER DISTRICT ATTORNEY:  I think that Judge Ruckriegel is concerned about the rights of victim in this case as well as the rights of the defendant and he wants a fair trial for both sides.  So to the extent that anything in there would be a bombshell, you can bet your bottom dollar that will be redacted. 

I agree with Larry about the point that this is a minor issue about this woman receiving this $17,000 but don‘t forget Pamela Mackey since the beginning of the case has been playing to the court of public opinion as well as to the court itself.  And this is a court of public opinion thing just one more time to degrade this victim, one more time to try to tear her down about something as meaningless as this.  The counselors get the money.  She doesn‘t get the money.  She hasn‘t seen one cent of that $17,000 and if there was ever a case where $17,000 worth of counseling would be needed it would be this one where she has been hounded around the country, she‘s had to move four different times, she has had death threats, she‘s had her name released.  She‘s...

(CROSSTALK)

EARLY:  I mean she would need some counseling...

ABRAMS:  Larry...

EARLY:  ... after all that. 

ABRAMS:  ... let me come back to the issue of whether this very sensitive information is going to come out.  Do you think that the judge is going to release—again, I was so struck by hearing Harvey saying this could change the way you look at this case. 

POZNER:  Yes.  I don‘t know if it can change much.  It seems to me that people have a very dismal opinion of the prosecution case and I don‘t know if that‘s going to change.  Dan, I don‘t think the judge gets to redact or cross out words because they are sensitive.  This is a First Amendment issue now not a defense or prosecution issue.  I think the Supreme Court has directed him if you have ruled this evidence is going to be admissible, you can‘t keep it secret.  And that isn‘t the lawyers who have done this, that‘s the law of the land.  I think what could come out is a preview of the rape shield evidence that a jury will hear and I think it could be very hard on the prosecution case. 

ABRAMS:  Professor Levy, are we going to be seeing some of that on Tuesday? 

LEVY:  Well I think so.  I think that, again, the First Amendment is the important issue here and while, of course, we‘re all concerned about somebody who makes a claim of rape having her rights protected under the laws, particularly the strict laws here in Colorado, information has already been released.  The Supreme Court has spoken in the way that they have to the judge in this case.  And I think we are going to hear evidence that certainly from the things that we have heard so far lead us to believe that this is going to be evidence that‘s going to have us look at the case in a different way. 

ABRAMS:  Professor, it would have to be admissible, is that correct?  Because you know we end up reporting generally a lot of things that aren‘t necessarily admitted in court. 

LEVY:  Well, the court has ruled that there is evidence that is going to be admissible and I think that‘s going to be the focus of what will be released by this court and what as I understand it has already in some fashion been released to news organizations.  And once—the information that they are battling over. 

ABRAMS:  Yes.  All right, I mean look, I can tell you from having read this stuff that was released yesterday, most of it was very procedural and not of great interest and that‘s why I think the court had no problem saying, hey, you guys want this?  Here, go ahead.  Take a look.

All right, Norm Early, Larry Pozner, Professor Levy stay with us. 

Coming up, does it matter if the alleged victim is preparing to sue Kobe Bryant in civil court? 

And, the search for that missing Utah woman moves to a Salt Lake City landfill. 

And later, the debate over the death penalty.  Illinois‘ governor commuted the sentence of all 167 inmates on death row before he left office because he says the system is broken, but did he have to go that far?

Your e-mails to abramsreport@msnbc.com.  I‘ll respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, the lawyer for the alleged victim in the Kobe Bryant case apparently preparing for a lawsuit in Colorado.  Does that matter in the context of the criminal case? 

(COMMERCIAL BREAK)

ABRAMS:  We‘re back with developments in the Kobe Bryant case.  The alleged victim‘s civil attorney, Lin Wood who is in Colorado this week, preparing for a possible civil lawsuit.  Remember just last week the defense was given permission to bring up some of the alleged victim‘s sexual history at the trial.  As I just mentioned, the court accidentally posted the alleged victim‘s name on their public Web site.  It‘s the third time that the—that something like this has happened.  Her civil attorneys not taking it likely—John Clune, another one of her attorneys released this statement.

Quote—“It is inconceivable how this court can explain its continual pattern of re-victimizing this 20-year-old girl.  The court should not only apologize to this family, but also explain why they should not be suspicious of now three violations of this girl‘s privacy.  Their attorney lacks the conviction necessary for such persuasion.”

The court did apologize today.  My take on two issue here.  Number one, Lin Wood, the man who also represents John and Patsy Ramsey is going to begin all-out assault on Kobe Bryant and his defense lawyers, Pamela Mackey and Hal Haddon and while that may not make a difference in the criminal trial, I think it may lead the defense to think twice.

The other question so many are asking, could they work out a deal in the criminal case?  My take—unless she backs out, the answer is no.  All right, first let‘s deal with issue number one.  Professor Levy, the fact that Lin Wood is an aggressive attorney who I think is going to come out swinging against this defense team, does that have any impact on the criminal case? 

LEVY:  Well, it will have an impact to the extent that you think any of this has an impact that as the public hears it, as the jury hears it, it may influence what they are thinking.  Certainly, we haven‘t seen anybody swinging in quite the same way as Pamela Mackey and the defense team, so it might be nice to see a little bit of strong advocacy on behalf of the victim in this case.  But the fact is what the jury is going to be looking at is motivation and all the things we‘re talking about.  That‘s really what we‘re asking ourselves, is does this woman have a motive to lie?  Is it financial?  Is it mental health and is that what she‘s doing in this case?

ABRAMS:  But you know Larry, is it fair to say oh if she is going to file a civil lawsuit that means it‘s about money?  I always think those arguments are kind of weak because the bottom line is if it happened to her, she has every right to sue in civil court and I don‘t...

(CROSSTALK)

ABRAMS:  ... think just right.  I would encourage her to do it if that‘s actually what happened. 

POZNER:  Well, that‘s fine but the statements from her side have always been it‘s not about the money and athletes have taught us whenever you hear somebody tell you it‘s not about the money, it‘s about the money. 

ABRAMS:  But why does a civil suit...

POZNER:  That‘s what the defense has said from the beginning...

ABRAMS:  ... necessarily mean—but why does a civil suit necessarily mean that it‘s—quote—“about the money” as opposed to the fact that it‘s about punishment and the only way that that woman has regress against Kobe Bryant is in a civil court?  Otherwise the criminal case is the state of Colorado. 

POZNER:  But it‘s only the state of Colorado that can administer punishment.  Nobody is saying she can‘t sue but if she wanted to file a suit, what is her timing?  Has she held back the filing of a lawsuit so that she can say to a jury it‘s not about the money and the minute the criminal case is over, then she files a lawsuit.

ABRAMS:  Is there...

POZNER:  I don‘t know that we‘re ever going to know that.

ABRAMS:  Professor, is there a timing issue as to by when the lawsuit has to be filed, a civil lawsuit? 

LEVY:  Well, there are always statue of limitations that apply to when you can bring lawsuits, but I think the question is really much more a question of strategy and I think what we‘re seeing here and particularly with a new lawyer coming in, maybe some deciding about whether the strategy that‘s been taken is really the right one as it seems like at every turn really the case looks worse and worse...

ABRAMS:  Norm...

LEVY:  ... for the woman. 

ABRAMS:  I apologize Professor.  Norm, second question about a possible deal.  There were all sorts of rumors going around.  People were seeing Lin Wood in town.  He was having all these high-level meetings.  The prosecutor was there.  People were saying oh are they trying to—I can‘t imagine that they‘re going to be able to work out any sort of deal in this case because I think the defense is convinced there‘s going to be an acquittal and as a result they are not going to deal for anything less than the charges being dropped. 

EARLY:  The defense would not deal this case regardless of whether they felt they had a chance of acquittal or not.  There is no way in the world that Kobe Bryant is going to plead to anything related to a sexual offense and that being the case there is no way in the world the prosecutors are going to offer him anything other than that.  As for Lin Wood‘s presence, I don‘t think it‘s just aimed at the prosecution—excuse me—at the defense attorneys. 

Everything I read about Lin Wood said media, media, media.  That he was here to hold the media accountable for the things that they were saying and doing with respect to this victim.  If you look at the Patsy...

ABRAMS:  Yes.

EARLY:  ... case or the John Ramsey case, it was the media outlets and people in the media that Lin Wood sued in those cases...

(CROSSTALK)

EARLY:  ... and obtained substantial judgments.  So don‘t think that they‘re trying to get the defense to back off because I don‘t think Pam or Hal is going to back off one iota...

ABRAMS:  All right, we lost Norm there but we got the idea of what he was saying.  Larry—oh, Norm is back.  Norm—no he‘s gone again.  All right.  Larry, go ahead.  Why don‘t you respond to what Norm said?

POZNER:  Well, you know, there is nothing Lin Wood is going to do that is going to faze Hal Haddon and Pam Mackey.  Hal Haddon and Pam Mackey are the Sherman tanks of the criminal defense bar and Lin Wood is a Toyota about to get crushed.  Nothing will get in the way of a good defense lawyer doing hard-core ethical work on behalf of their client.  And if they were the kind of people that would be worried about Lin Wood, they wouldn‘t be criminal defense lawyers.

ABRAMS:  Maybe—I agree—look I agree that they shouldn‘t back down because you know of Lin Wood, but I think that they‘ve met—they may have met their match. 

Very quickly, Professor, the—can they make a deal whereby the civil

·         it would be unethical, would it not, for the prosecutors and the civil attorneys to be discussing, hey, we‘ll drop the charges and we‘ll work out some deal for money.  That would be unethical, right? 

LEVY:  Well, it would be unethical but there are ways to certainly have those kinds of discussions in which you can do it in a professionally responsible way.  I have to say I listen to Norm Early a lot.  I don‘t always agree with him, but I do agree in this case.  I think the defense is going forward with its defense. 

Kobe Bryant says he‘s not guilty.  This has been defended really to the hilt.  I‘m a girl from New York.  I don‘t know if we‘re seeing the Rolls Royce and Mercedes, but we‘re certainly seeing a great defense team here and the case is going to go forward unless really the prosecution backs down.  And I think all that we‘ve heard this week about victim‘s compensation has just been another reason to think that there is no way the prosecution is going to back down either. 

ABRAMS:  All right, Norm Early, Larry Pozner, Professor Levy, thank you all so much for coming on the program.  Appreciate it. 

POZNER:  Thank you Dan.

ABRAMS:  Nearly two weeks after she disappeared, Salt Lake City police focus their search on a city landfill and take crates of evidence from the apartment where she lived with her husband. 

And later, we talk with one of Saddam Hussein‘s attorneys.  He just met with the man in charge of that court that‘s going to try Saddam.  He‘s going to provide us with some exclusive details about that conversation.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  Now to the ongoing search for Lori Hacking, the pregnant Salt Lake City woman reported missing nearly two weeks ago.  Police are now using cadaver dogs to search a nearby landfill.  Her husband, Mark, alerted police last Monday when he said she failed to come home from an early morning jog and didn‘t show up for work.  Police now calling him a person of interest after he apparently lied about a number of issues and his timeline seemed inconsistent. 

Police have already taken items from the couple‘s apartment including a box spring but not the mattress.  As we told you last week, Mark Hacking bought a new mattress almost a half an hour before he reported his wife missing.  All evidence is being sent to the Utah State Crime Lab for analysis.  And it seems police are focusing the investigation, you know because of all those various issues. 

All right.  Jennifer Dobner from the “Deseret Morning News” joins us now.  Thanks again for coming back on the program.  We appreciate it.  So, where does the investigation...

JENNIFER DOBNER, REPORTER, “DESERET MORNING NEWS”:  My pleasure.

ABRAMS:  Where does the investigation stand now?  I mean they are still—are they still hopeful at all that she could be found alive? 

DOBNER:  Well, I don‘t know if I can answer that question.  Certainly the family is holding on to hope but they have acknowledged publicly that they understand what it means when day after day goes by without finding Lori.  Police aren‘t really saying very much about that. 

They continue to search a landfill just west of downtown.  They have been out there three nights this week for between six and eight hours each time with the dogs and not saying if they are finding anything at all.  Mostly what they say is nothing of consequence at this time. 

ABRAMS:  Now, is her husband still in a hospital? 

DOBNER:  Yes, that‘s the last report that we have.  That he‘s still hospitalized, still under a doctor‘s care.  And earlier in the week before the family stopped issuing any statements or talking to the press at all said that they were going to rely on doctors to tell them when it would be appropriate for Mark to go home and also saying that they felt that it would be a while before that happened. 

ABRAMS:  Are the police questioning him there? 

DOBNER:  The last we know the police spoke with him was about a week ago Wednesday.  They have not confirmed whether they have been in contact with him again.  We do know that he has hired a criminal attorney, Gil Athay, a very prominent local attorney who has done many capital cases.  We know that Gil and Mark are in contact daily, but of course, we don‘t know the nature of those conversations. 

ABRAMS:  And the police are continuing to call him, what, a—quote -

·         “person of interest” and he is the only person of interest, correct? 

    

DOBNER:  That is correct.  They‘re calling him a person of interest, but not a suspect.  That may have something to do with the fallout from the Elizabeth Smart case when they spent a number of months focusing a lot of attention on a gentleman by the name of Richard Ricci, who in the end was not the person who committed the crime, but certainly was tried in court of public opinion. 

ABRAMS:  And are there still people out searching?  Are the searchers still out there, groups of volunteers, et cetera? 

DOBNER:  The volunteer search was scaled back at the beginning of the week.  They have sort of switched over to a more specialized search in which they are employing trained search and rescue people.  We have a number of groups here in Salt Lake City because of the recreation areas where hikers go missing every summer, people with dogs who know what to do in steep and difficult terrain.  The family was concerned about people, you know regular people without any skills being put in places where they might be harmed.

ABRAMS:  And very quickly, you reported on it last week—on a bloody knife—early in the week—on a bloody knife that was found in the home, too, correct, right? 

DOBNER:  That‘s correct.  My sources have told me that among the evidence police have gathered was a knife with hair samples and blood on it.  What that means, again, we still don‘t know. 

ABRAMS:  Yes.  All right.  Well, what can I say?  Jennifer Dobner thanks very much for coming on the program.  Appreciate it. 

DOBNER:  My pleasure. 

ABRAMS:  Coming up, he‘s got one of the toughest jobs in the legal world, defending Saddam Hussein.  We talk with one of Saddam‘s lawyers about the defense.  He has just spoken with the person in charge of the court.  What did he say?

And it could be one of the toughest decisions a governor has to make, whether to commute the sentence of a convicted killer on death row.  The governor of Illinois made that decision about all of the death row inmates, commuting all their sentences.  We‘ll talk with two filmmakers about a documentary that profiles how Governor George Ryan made that decision.  Their film airs tonight on “Dateline NBC” at 8:00 p.m. Eastern time, followed by a special edition of THE ABRAMS REPORT follow—on MSNBC at 10:00 p.m. Eastern and we will include that in that—an interview with the former governor.

Your e-mails abramsreport@msnbc.com.  Stay with us.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, most of the world thinks his client is guilty, so how do you defend Saddam Hussein?  We‘ll talk with one of his lawyers who has just had his first discussion with the court about how the trial will proceed—first the headlines. 

(NEWS BREAK)

ABRAMS:  We‘re back.  He invaded Kuwait and Iran, crushed his enemies at home in Iraq, ruled for a decade with torture and terror, so if you‘re a lawyer, how do you defend Saddam Hussein, particularly when you can‘t even meet with your client?  One of Saddam‘s lawyers, Giovanni DiStefano, has done what may be the next best thing.  On Thursday Mr. DiStefano met in London with Salem Chalabi, the president of the Iraq special tribunal that will try Saddam. 

Mr. DiStefano says he and Chalabi agreed on a number of pretrial procedures and a way to grant the attorneys‘ access to Saddam.  Of course, there is a lot more to be worked out before a trial can start and Mr.  DiStefano says Saddam will likely never be tried in a court.  Giovanni DiStefano joins us now in this exclusive interview.  Thank you so much, sir, for joining us on the program. 

GIOVANNI DISTEFANO, ATTORNEY FOR SADDAM HUSSEIN:  Thank you. 

ABRAMS:  First of all, tell me about the conversation that you had with Salem Chalabi and what you discussed, what you agreed to, what is going to happen from here. 

DISTEFANO:  Well it was a one-hour conversation and I‘m extremely grateful for Dr. Chalabi for having the courage and taking the time, of course, to meet with me in London.  It will obviously be a meeting that will be much talked of.  But the important issue here is that at some stage the defense and the prosecution simply had to get together.  We simply had to decide what to do next. 

We have a situation where we have a client that‘s been in custody for more than seven months.  Totally not acceptable under any standards whatsoever, but on the other hand, of course, there are procedures that have to be followed and Dr. Chalabi was very kind and he has now facilitated a way ahead in order that we can have access, in order that his family can continue to enjoy access and that all his rights will be retained and will be applied.  And for that, I personally am extremely grateful for Dr. Chalabi.

ABRAMS:  Before we discuss the issue of why you think Saddam Hussein may never be tried, let me play you a piece of sound—Mr. Chalabi appeared on this program about a month ago.  He felt the need to turn his back to the camera because he was fearing for his safety.  And let me listen—let me let you listen to what he had to say. 

(BEGIN VIDEO CLIP)

SALEM CHALABI, PRES., IRAQI SPECIAL TRIBUNAL:  In the process of gathering evidence, some people brought documents to me, a box of documents with originals of Saddam Hussein‘s signature of execution warrants—I mean execution orders for literally, I mean, you know, no exaggeration, 1,000 people going back to between 1980 and ‘84.  And that‘s just from one box filed, that was handed to me through very authentic sources.

(END VIDEO CLIP)

ABRAMS:  So that seems to be just the beginning in many ways.  Let me start with the question of how you think you‘re going to be able to avoid a trial here. 

DISTEFANO:  Well, first of all, we have to know what are the charges?  Because to date, all we have is a person that is a suspect in accordance with their own statute.  We have no charges that are filed and it would be wholly wrong of me or any lawyer to speculate on how we are going to defend a person that to date has not been charged...

ABRAMS:  But didn‘t they...

(CROSSTALK)

ABRAMS:  ... I mean but isn‘t that a semantic?  I mean he did appear in court, right, and they did tell him what he was accused of formally and asked him if he understood it.  He said he wanted to talk to a lawyer before he would sign the documents, et cetera.  But he certainly has been informed of the charges against him, no? 

DISTEFANO:  No, he has the basis of why they are holding him but to date, and this has been agreed with both Dr. Chalabi and I, no formal indictment has been drafted or served and that is simply not acceptable. 

ABRAMS:  Well that‘s—as you know, that‘s because there is no formal court as of yet.  I mean they have logistical issues in terms of forming a court, et cetera.  Do you have any sense at this point—I mean I know you were saying you don‘t want to speculate yet on what your defense will be, but you know generally the litany of allegations out there against Saddam Hussein.  Is your defense going to be a factual one, which basically says he simply didn‘t gas the Kurds, he didn‘t torture his own people or is it going to be more legal and procedural? 

DISTEFANO:  Well, first of all, there is a court and I can tell you that the discussions between Dr. Chalabi and I, he did confirm that.  That has now been put in place, primarily thanks to the United States government and the funding and the security packages that have been put for the judiciary, for the appellate court and for the prosecution.  Now that is something that is not unusual at all. 

It happens day in and day out in courtrooms all over the world.  Judges need to be protected, it happens in America.  The juries, in this case there were no juries, so that‘s nothing unusual.  One of the factors that Dr. Chalabi has recognized are the submissions that we made on the 9th of July involving what is called sovereign immunity.  Now, President Saddam Hussein and all members of the Revolutionary Council, like it or not, when the United Nations approved the constitution of Iraq, Article 40 included absolute and total sovereignty...

ABRAMS:  Let me just explain...

(CROSSTALK)

ABRAMS:  Let me explain to my viewers what that means.  Basically, that would mean because he‘s the head of state that you know they can‘t effectively put him on trial because he was the head of the state at the time.  But as you know that‘s an argument that has been rejected again and again from Nuremberg to Britain, for example.  Again and again that sovereignty argument has been rejected when it comes to war crimes, crimes against humanity, et cetera. 

DISTEFANO:  I‘m not quite so sure about that that it was rejected in Nuremberg because it was effectively an international court.  This is an Iraqi court.  It‘s an Iraqi court under an Iraqi constitution and to the best of our knowledge, that constitution still holds good. 

ABRAMS:  Yes.

DISTEFANO:  That is one of the aspects.  And Dr. Chalabi recognized that there were procedural matters, pretrial matters that would have to be...

ABRAMS:  Fair enough.

DISTEFANO:  ... dealt with including bail.

ABRAMS:  Fair enough.  And I apologize for interrupting you.  I‘m almost out of time, but I‘ve just got to ask you one last question.  You for a time represented Slobodan Milosevic.  You‘re now representing Saddam Hussein.  The question I‘ve got to ask you—why do you take these cases? 

DISTEFANO:  I was asked.  It‘s as simple as that.  I mean I would represent you if you have a problem and you ask...

ABRAMS:  Yes, but I‘m not Saddam Hussein or Slobodan Milosevic...

DISTEFANO:  No, but I mean you know we don‘t only represent—you know the day-to-day work continues, notwithstanding that this is a very important and high profile case.  This is a man that in my view should not be in custody currently and it is a person that requires to know what are the nature of his charges.  He needs to be indicted if we are to do this properly.

ABRAMS:  Well, Mr. DiStefano, thank you very much for taking the time.  I know it‘s very late and I appreciate you staying up to come on the program. 

DISTEFANO:  Thank you. 

ABRAMS:  Coming up, a new documentary takes an in-depth look at one governor‘s decision to commute the sentences of all 167 prisoners on death row in Illinois.  It airs tonight on “Dateline NBC” at 8:00 p.m. Eastern with a special edition of THE ABRAMS REPORT following on MSNBC at 10:00 p.m. Eastern.  We‘ll be taking your phone calls and e-mails for our guests including former Governor Ryan.  When we come back, we talk to the filmmakers. 

And later, with one convention down and another on its way, I say it‘s time for all Americans to start thinking like lawyers when choosing who to vote for.  I‘ll explain in my “Closing Argument”. 

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  There are few issues as divisive or emotional as the death penalty.  The debate especially sharp in Illinois where former Governor George Ryan commuted the sentences of all the prisoners on the state‘s death row just days before he left office.  It‘s a subject of a documentary called “Deadline” that‘s airing tonight at 8:00 p.m. Eastern, 7:00 Central on “Dateline NBC”, followed by a special edition of THE ABRAMS REPORT at 10:00 p.m. Eastern.  We‘re going to discuss all the issues raised by the documentary, take your phone calls, e-mails, et cetera.

In the film, a murdered victim‘s father and a killer‘s mother come face to face at a clemency hearing.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  I‘m Rod (ph) (UNINTELLIGIBLE).  I‘m Rhonda‘s dad.  She was my daughter.  Please have some patience with me because I‘m really nervous.  If I may, I‘d like to say something to (UNINTELLIGIBLE).

UNIDENTIFIED MALE:  Please go right ahead. 

UNIDENTIFIED MALE:  I can‘t forgive Robin (ph).

UNIDENTIFIED FEMALE:  No, I‘m not asking for...

(CROSSTALK)

UNIDENTIFIED MALE:  I can‘t forgive him at all.  He committed...

(CROSSTALK)

UNIDENTIFIED MALE:  ... my daughter.

UNIDENTIFIED FEMALE:  I‘m not asking for forgiveness.  I can‘t even do it myself, Rod (ph).

UNIDENTIFIED MALE:  I want him executed.  I can‘t help it...

(CROSSTALK)

UNIDENTIFIED MALE:  I‘m sorry. 

UNIDENTIFIED FEMALE:  I understand. 

UNIDENTIFIED MALE:  That‘s the way it is. 

UNIDENTIFIED FEMALE:  I understand.  I do, Rod (ph).  I do. 

(END VIDEO CLIP)

ABRAMS:  The documentary first shown at the Sundance Film Festival looks at former governor of Illinois, George Ryan‘s days in office when he struggled with his decision about those people on death row. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  I know the burden, and I know what it feels like to be responsible for a man to be executed.  Until you‘ve sat in judgment, and made that life or death decision, you really can‘t debate with me about what it‘s like to pull the switch. 

(END VIDEO CLIP)

ABRAMS:  Obviously capital punishment became a huge issue in Illinois.  But this came after a handful of journalism students at Northwestern University investigated the case of death row inmate Anthony Porter.  The students found evidence that cleared Porter after 17 years on death row.  Subsequently, 13 inmates who had been sentenced to death were also exonerated and eventually Ryan commuted the sentences for all of them, all 167 death row inmates in the state.

Joining me are the women who made the movie “Deadline”, Katy Chevigny and Kirsten Johnson.  Thank you both very much for coming on the program.  Appreciate it.

UNIDENTIFIED FEMALE:  Thank you.

ABRAMS:  All right.  Ms. Johnson, let me start with you.  When you started this film, what was the mission?  What did you say this is what we‘re going to make a movie about? 

KIRSTEN JOHNSON, CO-DIRECTOR, “DEADLINE”, THE MOVIE:  Well we were actually involved in making a movie about Furman v. Georgia, the Supreme Court decision that brought an end to the death penalty in 1972, but a colleague called and said there are these clemency hearings happening in Illinois and as soon as we walked into those clemency hearing rooms, we realized we were on to an incredibly riveting story. 

ABRAMS:  Is it fair to say that you both came into this opposed to the death penalty?

KATY CHEVIGNY, CO-DIRECTOR, “DEADLINE”, THE MOVIE:  We weren‘t sure about a lot of aspects of why things were happening as they were.  We knew there were serious problems in the criminal justice system. 

ABRAMS:  But if someone had said to you before you made this movie, do you support the death penalty.  What would you have said?

CHEVIGNY:  I don‘t think we would have said we did.  Partly you know we have made other films of the criminal justice system.  It‘s something we really study and we also take the position that it‘s our job to—as independent media makers to really try to talk about important issues in our society that maybe people haven‘t looked at from exactly that angle.  What is great about a long-form documentary like this, we‘re getting this two hours on NBC primetime, is we really get to explore in-depth all different sides of this issue.  We went to great efforts to do that. 

ABRAMS:  And what was the other side?  I mean characterize it for us because you watch film and the bottom line is you come across—it comes across as basically Governor Ryan made the right decision by commuting the death sentences for everyone. 

JOHNSON:  Well, it‘s interesting that what we feel is that we want to give every spectator the chance to decide for themselves whether or not Governor Ryan made the right decision.  The way we constructed the film was to lay out step-by-step how he got from thinking about innocence.  You know he was absolutely...

ABRAMS:  He came full...

(CROSSTALK)

ABRAMS:  ... this is a Republican, supports the death penalty and somehow flips. 

UNIDENTIFIED FEMALE:  Right. 

JOHNSON:  And we were interested in that somehow.  We want the spectator to understand that it‘s not just about innocence.  How in the world do innocent people get on death row?  That is a revelation for many people. 

ABRAMS:  And what‘s the answer to that question, based on the film? 

CHEVIGNY:  Yes.  Well, it‘s that when you see all the evidence that was presented to him, you know at these clemency hearings, he had 167 of them, one for each person on death row.  After you watch several of them, as we did, you start to see patterns of things that were going wrong in the system.  A lot of inadequate counsel, a lot of just kind of fishy information...

ABRAMS:  The governor threw out some statistic.  I was stunned by 33 percent...

UNIDENTIFIED FEMALE:  Yes.

ABRAMS:  ... or something of the lawyers who represented these guys were either disbarred or suspended from practice.  What was the statistic?

CHEVIGNY:  Yes that it.  Thirty-three percent of the lawyers that defended the people in Illinois‘ death row were either disbarred or suspended from practicing law at some point in their career.

UNIDENTIFIED FEMALE:  (UNINTELLIGIBLE) you get a good lawyer when you‘re on trial for your life. 

ABRAMS:  Oh no, I‘ve never—I mean I don‘t...

CHEVIGNY:  Well the other thing the governor says that—why we think he made the circle is he‘s always said you know I‘m a pharmacist; I‘m not a lawyer.  I‘m sure he‘ll say that to you tonight.

ABRAMS:  Yes.

CHEVIGNY:  And a lot of times lawyers have a certain sense of you know well, there is always some stuff that doesn‘t really go right, but I think he really had faith that the system worked.  If somebody was on death row and they had an appeal, they were for sure guilty.  And so for him, he was like how is it possible that this happened...

ABRAMS:  I‘ll tell you the question I‘m going to ask the governor tonight because I still support the death penalty in a far more limited fashion I think than some prosecutors and I have done editorials about this, saying that I think the death penalty can still work, but that they pursue it too often as a garden variety crime.  That I‘m going to ask him why he felt the need to commute all of the sentences.  Why the guiltiest of the guilty also got their sentences commuted.  What do you think he is going to say real quick? 

JOHNSON:  Well...

ABRAMS:  Do you know...

JOHNSON:  ... I‘m going to let Governor Ryan speak...

ABRAMS:  Yes, OK.  All right.  I didn‘t mean to put...

JOHNSON:  But no, no absolutely.  I think—I mean what is interesting is I think he was trying to triage.  I mean he was looking desperately...

ABRAMS:  Yes.

JOHNSON:  ... to find who was innocent and then he was trying to triage and find out, but there were so many different instances of problems in everybody‘s cases that he didn‘t feel comfortable leaving anybody out. 

ABRAMS:  Congratulations to both of you.  This movie has got a big buzz around here at NBC and I appreciate you coming on the program.

JOHNSON:  Thank you so much.

CHEVIGNY:  Thank you so much.

ABRAMS:  All right, a programming note.  You can watch “Deadline” in its entirety on “Dateline NBC” 8:00 p.m. Eastern, 7:00 Central NBC tonight and immediately after switch to the program about justice where we will debate and discuss all of the volatile issues raised in the film.

Look, I don‘t agree with some of the conclusions that you can draw from this movie, but I‘ll tell you, we are going to have a real—this was a really fascinating movie whether you agree or not agree, it‘s a lot to talk about.  Special edition of THE ABRAMS REPORT. 

My guests are going to include former Illinois Governor George Ryan and author and former prosecutor Scott Turow.  And we‘ll take your phone calls and e-mails throughout the show.  The number will be 1-888-MSNBC-USA.  Your e-mails abramsreport@msnbc.com.  That is at 10:00 Eastern, 9:00 Central right here on MSNBC—an important program to watch. 

Coming up, why it‘s time for all of us to start thinking like lawyers to help us choose between these guys.  It‘s my “Closing Argument”. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, my “Closing Argument”, why voters can draw a lesson from lawyers using evidence to help us vote.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why it‘s not always bad to think like a lawyer.  As my regular viewers know, I‘m often critical of lawyers and legalistic arguments, but now that we‘re in full convention mode and with the election around the corner, I think it can be helpful to cut through some of the typical huffing and puffing with a dose of courtroom sensibility.

For example, judges tell jurors that opening statements and closing arguments are not evidence in the case.  They‘re just the lawyer‘s summaries or arguments.  The same applies to the candidates.  What they say they have done or what their opponent has not should not be the evidence.  It‘s just argument.  After all, both President Bush and Senator Kerry would say they want to avoid cuttings Social Security, while providing tax relief to the middle class, while maintaining the greatest military in the world, while protecting the homeland, while creating jobs, et cetera. 

We the jurors have to keep our eyes on the facts.  Have the candidates supported policies in line with our own?  Do their actions back up their words?  Are they credible?  Every day jurors evaluate the credibility of witnesses.  We have to do the same with the candidates. 

The 9/11 commission report I think is a perfect example of evaluating the evidence.  They listened to hundreds of accounts of what happened, but rather than just accept what was said, they compared it to the evidence.  Now most voters can‘t examine everything as thoroughly as the 9/11 commission, but we can look beyond the pomp and cheerleading at the conventions to the records. 

We all need to ask ourselves what are my priorities, what are the most important issues to me and then figure out, is President Bush living up to my expectations and what‘s the evidence?  Not just what is he saying?  Same applies to Senator Kerry.  Could he do a better job of achieving the goals I think are most important?  Look up his voting record in the Senate on the issues that matter most to you, but don‘t take either one at face value.  I don‘t with lawyers and I won‘t with political candidates.  Both have incentives to tell the juries or voters what they want us to hear.  In that regard, I presume them guilty.

I‘ve had my say.  Now it‘s time for “Your Rebuttal”.  Last Friday, we reported that four students had filed a lawsuit against the Association of American Medical Colleges because they were denied extended time to accommodate their learning disabilities on the admission exam for students applying to medical school (UNINTELLIGIBLE).  I said not only does that discriminate against everyone else taking the test, but also against undiagnosed people who were there. 

We heard from a physician with more than 30 years experience and Dr.  Gary Levin in Palm Desert, California says, “The ability to read quickly and assimilate information is absolutely essential for a physician who then must also be able to review patient histories and results of laboratory tests quickly during the course of a day‘s patient care.  Maybe it‘s politically correct to allow everyone with any kind of disability to apply for anything, but there must be a high bar for entry into positions of this type.”  I agree with you Doctor.

From Scottsdale, Arizona, Jason Hass.  “Would you really want an ER doctor who needs extra time to figure out what‘s wrong with you or a trial lawyer who needs extra time to raise an objection?”

Kate McMahon Motolenitch (ph) -- sorry I apologize—from South Bend, Indiana.  “I have dyslexia and can sympathize with a student who has a hard time finishing tests, but it‘s not a matter of discrimination.  It‘s a matter of common sense.  You wouldn‘t want a blind firefighter looking for you in a fire, would you?”

All right, that‘s it for this edition of the program.  Again, remember, tonight—oh, e-mail abramsreport@msnbc.com.  Remember, you can write us about the issue we‘re doing tonight, the death penalty.  Governor Ryan commuting all the sentences on death row.  We‘re going to take your e-mails.  We‘re going to take phone calls.  We‘ve got a special edition of the program at 10:00 p.m. Eastern coming after “Dateline”. 

Coming up next, “HARDBALL” with Chris Matthews, convention wrap-up. 

See you at 10:00.  Thanks for watching.

END   

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