updated 10/15/2004 10:26:28 AM ET 2004-10-15T14:26:28

Guests:  Mercedes Colwin; Gloria Allred

DAN ABRAMS, HOST:  Coming up: “Fox News” host Bill O‘Reilly accused of sexual harassment. 

A producer from the show “The O‘Reilly Factor” files a lawsuit, saying Bill O‘Reilly talked dirty and tried to lure her into phone sex and other steamy fantasies.  He calls it extortion. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Is the defendant guilty or not guilty?

UNIDENTIFIED FEMALE:  Guilty.

(END VIDEO CLIP)

ABRAMS:  And a Harvard student says he stabbed a man to death in self-defense.  But a jury didn‘t buy it finding him guilty of manslaughter.  We‘ll get a live report.

Plus, could it be a legal deja vu all over again in the presidential electronic, but this time with a battle see in Colorado?  On November 2, they vote for president, and on whether to change the way they distribute their electoral votes.  That could determine the winner of the election, and then the courts will once again have to make the final call. 

“The” program about justice starts now.

Hi everyone, first up on the docket tonight, talk show host Bill O‘Reilly said today, “it‘s a bad day for me.”  This after Andrea Mackris, a long-time associate producer for his program “The O‘Reilly Factor” filed suit against O‘Reilly for sexual harassment.  In graphic detail she laid out exactly what she says O‘Reilly said and did, but only after the talk show host filed suit against her first.  Here‘s NBC‘s Anne Thompson.

(BEGIN VIDEOTAPE)

BILL O‘REILLY, “THE O‘REILLY FACTOR”:  Hi, I‘m Bill O‘Reilly.

ANNE THOMPSON, NBC CORRESPONDENT (voice-over):  Bill O‘Reilly, the master of the no spin zone, last night spinning for himself against charges of sexual harassment. 

O‘REILLY:  I had to file a lawsuit against some people who are demanding $60 million or they will, quote, “Punish” me and “Fox News.” 

THOMPSON:  His accused, Andrea Mackris, an associate producer on his top rated cable show.  Wednesday afternoon Mackris filed her own lawsuit, describing in detail dinners and phone calls where she claims O‘Reilly was inappropriate. 

BENEDICT P.  MORELLI, ANDREA MACKRIS‘ ATTORNEY:  He would talk sexually to her, tell her that he wanted to have phone sex with her, and tell her, at one point, that he was, the next time, going to do it in person. 

THOMPSON:  During this year‘s republican convention, Mackris‘ suit claims O‘Reilly called her while watching a porn movie and described his sexual fantasy. 

“You would basically be in the shower and then I would come in and join you...”

The conversation, Mackris says, became more graphic. 

In his lawsuit, O‘Reilly claims they had “a good and productive working relationship.”  And Mackris never complained to Fox executives.

O‘REILLY:  This is the single most evil thing I have ever experienced, and I‘ve seen a lot. 

THOMPSON (on camera):  And though O‘Reilly‘s attorney concedes they had several dinners and watched a presidential press conference alone in a hotel room, he insists their relationship was professional, never intended to be romantic, intimate, or personal. 

(voice-over):  At stake, O‘Reilly‘s image, conservative commentator, best-selling writer, husband, father, and now author of a children‘s book, vowing to do battle in court to avoid being labeled a harasser. 

Anne Thompson, NBC News, New York.

(END VIDEOTAPE)

ABRAMS:  OK, “My Take”:  First O‘Reilly‘s extortion suit, it‘s a non-starter it was clearly a preemptive attack.  Every day civil lawyers threaten potential defendants with lawsuits and say, “Unless we agree on a settlement, we‘re going to sue.”  That‘s just part of the negotiation.  Team O‘Reilly can spin it the way want, but they‘re not going to win that case, I think they probably know it. 

Having said that, Andrea Mackris has some serious hurdles to overcome with her suit.  To begin with, she wasn‘t fired or demoted.  That doesn‘t‘ mean she might not have enough to win, but it does mean that even if everything she says is true, she may have a tough time when it comes to collecting damages.  And some of the harassment she alleges came in late-night phone call, she going to have to show those call were both unwanted and essentially a part of her job.  And she says the harassment began in 2002.  So why‘d she leave to go to CNN and then come back in 2004? 

Finally, her lawyer has fed into O‘Reilly‘s claim that her suit isn‘t meant to damage Fox and Republicans with a claim that O‘Reilly, Fox, and the Westwood One radio network that also broadcasts O‘Reilly, quote, “...utilize this forum to preach the principles of the so-called ‘compassionate conservatism‘ espoused by George W. Bush and the Republican Party.”

That has nothing to do with this case and was just an effort to attack O‘Reilly who says he‘s an independent. 

Joining me now, defense lawyer Mercedes Colwin who represents numerous business executives who have been sued for sexual harassment.  And noted victim‘s rights attorney, Gloria Allred. 

We should note that some of the material in the lawsuit we‘re going to be discussing could be offensive to some views, so keep that in mind.

All right, Mercedes first you‘re assessment.  A lot of the quotes in her lawsuit are long and detailed, does that say to you that she has audio tapes and if she does, why won‘t her lawyer confirm that. 

MERCEDES COLWIN, DEFENSE ATTORNEY:  Well, I think it‘s foolish, first of all, whether or not there are audio tapes.  I‘ve had so many complaints with the same sort of definite quotes expressed by the defendant, low and behold there are no tapes.  These are recollections, these are notes, these are imagination of the plaintiff simply memorialized in writing.  So, none of that may manifest into tapes. 

So, I don‘t think necessarily that there tapes.  If there were, there is no reason why the plaintiff‘s counsel wouldn‘t say “I have the tapes,” because ultimately during the course of litigation he has to produce them.  Otherwise he‘s never going to be able to play them in court, so he knows that.  I think at this point, and I know he‘s been asked repeatedly on every show that he‘s been on, he sort of is a little cagey and smiles and says, “I‘m, well, I‘m not at liberty to say.” 

ABRAMS:  Yeah, Gloria, I don‘t understand why he won‘t just, if he‘s got the tapes, why he wouldn‘t just confirm, “yeah, look, we‘ve got tapes.” 

GLORIA ALLRED, VICTIM‘S RIGHTS ATTORNEY:  Well, you know, I don‘t know if there are tape recordings that have been made, Dan, whether or not they were made legally, for example, under the laws of the state of New York. 

ABRAMS:  New York‘s a one-to-one (UNINTELLIGIBLE)

ALLRED:  Or where else they might have been made.  Pardon me.

ABRAMS:  New York, New York...

COLWIN:  In New York you have just one person that has to consent.

ABRAMS:  Yeah, one—one—one party rule in New York.

ALLRED:  Yeah, well, or wherever else they might have been made. 

ABRMAS:  Yeah.

ALLRED:  So, all I‘m saying is that could be an issue, maybe not.  Maybe they were made legally.  Maybe there are no tapes.  Maybe, you know, this is just a bluff, a fakeout, we don‘t know.  However, what I‘ve read of the lawsuit—and I have read the plaintiff‘s lawsuit, the young woman‘s lawsuit, you know, the conversation that is quoted in there, at least one of them, is so specific that one would tend to believe there had to have been a recording.  But, he might have tactical or strategic reasons, as her attorney, for not stating that, in fact, there was a tape recording. 

ABRAMS:  All right, now, let me play a little bit of sound from the “Today Show” this morning, what I thought was really a very weak performance from Morelli and his client and his client.  You know, the first question that she was asked she sort of nervously turned her attorney.  He was clear that he was not going to let her answer a whole lot of questions here.  But, here‘s a little bit of what we heard this morning. 

(BEGIN VIDEO CLIP)

ANDREA MACKRIS, ACCUSES BILL O‘REILLY OF SEXUAL HARASSMENT:  When this inappropriate conversation had happened the last time, he had said it was going to be in person.  And I was—I felt extremely threatened for many reasons. 

MORELLI:  We have two lawsuits pending, all right.  In one of those lawsuits, I am also a defendant.  We‘re both being sued.  My law firm is being sued.  This happened because they wanted to start spinning whatever they wanted to spin. 

(END VIDEO CLIP)

ABRAMS:  Uh, Mercedes, you‘d agree with me that O‘Reilly—O‘Reilly‘s team‘s lawsuit for extortion‘s a nonstarter, right?  I mean that was just preemptive strike there.

COLWIN:  There are so many times that I‘ve been faced in this situation and say to my clients, “What do you want to do about this?  Don‘t you feel like saying, we‘re being—this is a shakedown.  They are coming to us, they have this letter claiming hundreds of millions of dollars in injury. 

ABRAMS:  Right.

COLWIN:  It‘s certainly something...

ABRAMS:  But as a legal matter...

COLWIN:  Well, I‘ve thought...

(CROSSTALK)

ABRAMS:  As a practical matter I understand—I can understand $60 million is nothing close to the sort of damages you get in a case like this. 

COLWIN:  Practically and strategically, I thought it was a brilliant move on their part.  Well, it went ultimately...

ABRAMS:  No. No.

COLWIN:  I doubt very much that the court—but there is an intentional infliction of emotional distress, so there might be a possibility for doing it...

(CROSSTALK)

ABRAMS:  I don‘t blame him for doing it.

COLWIN: And I think it was brilliant.

ABRAMS:  As a matter of PR, I think it was  -- as a matter of PR it was at right move.  But as a legal matter, it‘s just—it‘s simply a non-story. 

Gloria, damages.  You‘ve collected damages for a lot of women.  You know, she wasn‘t fired, she wasn‘t demoted.  Doesn‘t mean it wasn‘t a sexuallyly hostile atmosphere, but you know, $60 million—you know, that‘s a—that‘s a big amount. 

ALLRED:  Yeah, well we‘ve done probably more sex harassment cases than any other private law firm in the country for individuals suing.  The last three-and-a-half years we‘ve collected over $100 million for victims.

OK, OK enough...

(CROSSTALK)

ALLRED:  No, with—what I want to say is so damages can be significant.  On the other hand they can be significant if there‘s a hostile workplace, even if the person has not been terminated or failed to be promoted...

(COMMERCIAL BREAK)

ABRAMS:  Even if the calls were at home?

ALLRED:  But they may not be significant.  There are going to be two hurdles, first is liability:  Did it occur?  Proving it.  And second is going to be damages.  And by the way, claiming extortion, if a person accuses another person of blackmail, they‘re accusing them of a criminal act, they could then be cross complained against for slander or libel if, in fact, it‘s not true.  Do, you know, we may see more charges filed in the future.  We don‘t know. 

COLWIN:  Dan, but it is outrageous, $60 million to seek in this complaint is simply outrageous.  We‘re talking about compensatory damages.  And you were absolutely right before.  She was not fired, she was not demoted, she was not punitively transferred.  This woman left on her own accord. 

She has a huge hurdle to show in court.  She has to show that she was constructively discharged, that the atmosphere was so outrageous she couldn‘t possibly work in that environment.  And we‘re not talking about that, we‘re talking about five—a couple of phone calls.  And what was really bizarre, here she is working at CNN, and here‘s the man who she claims was a harasser, she goes out to dinner with him twice and goes to his hotel room after dinner, according to her allegations, and this is the man she‘s claiming had made her life miserable at Fox? 

ABRAMS:  All right.

COLWIN:  She lacks credibility. 

ALLRED:  Well, that‘s not really—But, Mercedes, that‘s not really fair because if she was his employee and she really needed the job and she was afraid that if she protested it that somehow her job might be at risk, then it may be that she felt that she couldn‘t...

ABRAMS:  Let me take a break here—quick break.

COLWIN:  But Gloria at that time...

(CROSSTALK)

ABRAMS:  Quick break here.  Hang on, quick break.  We got plenty more to talk about.  Quick break.  Quick break.  Quick break.  Quick break.  Take a quick break.  When we come back we‘re going to talk about some of the specifics in the lawsuit.  Some of it is pretty graphic, so heads up. 

And a big win for prosecutors in the Michael Jackson case:  The judge ruling today most of the evidence seized from a raid at Jackson‘s Netherland ranch and from a private investigator‘s office, fair game.  Plus, how does that bolster the case? 

After deliberating for almost 24 hours, meaning total 24 hours, a jury finds a Harvard student guilty of stabbing a man to death.  The judge sentences him to six to eight years in prison.  We‘ll talk to the D.A.  in the case. 

Your e-mail abramsreport@msnbc.com please include your name, where you‘re writing from.  I‘ll respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, more on the Bill O‘Reilly sexual harassment case, coming up in a moment.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

O‘REILLY:  Now, if I have to go down, I‘m willing to do it.  But I got to make a stand, I‘m a big mouth on the air, I‘m a big mouth off the air.  I‘m a big Irish guy, you know.  Regis knows what I am. 

REGIS PHILBIN, “REGIS AND KELLY”:  He‘s the factor. 

O‘REILLY:  But I am a person who will say enough. 

(END VIDEO CLIP)

ABRAMS:  Bill O‘Reilly explaining why he fired the first Salvo, filing a lawsuit against a woman, actually and her attorney, who were getting ready to sue O‘Reilly for sexual harassment.  O‘Reilly has sued them for, among other things, extortion.  That was O‘Reilly on “Regis and Kelly,” this morning, um, talking about what this is all—I almost said Kathie Lee, you know, still stuck in my head. 

All right, um this is some of—let me warn you, some of this is a little bit graphic.  All right?  This is according to the complaint and this is a quote, according to her lawyer in the complaint, this is number one:

“O‘Reilly...suggested that...Mackris purchase a vibrator and name it...”

“It became apparent that Defendant O‘Reilly was masturbating as he spoke.”

Now, we took those two—I mean, there‘s a lot of talk about those two issues throughout this complaint.  Again, Gloria, let‘s focus on the law here.  As a legal matter, what is the law when it comes to someone who is the boss, who‘s calling, though, after hours, at night—you know, a lot of people have already said to me, “Why didn‘t she hang up?” 

ALLRED:  Well, it may be that she didn‘t hang up because she was afraid that if she offended him that she would lose her job and her job was very important to her.  So she‘s in a situation where there‘s an imbalance of power.  He has power over her as her employer, as her immediate supervisor.  And if it‘s true, if it can be proven what she alleges in her lawsuit, that he is suggesting that basically, the top brass, at his place of employment, in other words, Fox News Channel, would, in fact, support him and help to destroy her, then she might feel very intimidated about complaining...

(CROSSTALK)

ABRAMS:  Wait a second Mercedes, hang on for one sec, hang on.  Why is Fox responsible legally, though?  Or Westwood One?  If they had no warning that any of this was happening, how do you bring Fox and Westwood in?

COLWIN:  You have—you hit the nail on the head, Dan.  That‘s exactly right.  The Supreme Court said, that there has—that the—the accuser has to go to...

ABRAMS:  No, they haven‘t actually said that you have to.

(CROSSTALK)

COLWIN:  And do the complaint procedure.

ABRAMS:  They haven‘t.  They haven‘t said you have to.  They said...

COLWIN:  ...they said—they said that if there‘s a complaint

procedure that all of the cases that followed thereafter, they have to

undergo a—have to go through the complaint procedures

(CROSSTALK)

ABRANS:  That‘s very helpful, but they said they won‘t—they won‘t through out a case just because someone has not.  But, in this particular case—you know, they‘ve—basically what they‘re saying is if effectively they had notice, or effectively they‘re warned. 

But Gloria, I mean, here‘s the quote, now proceeding, here‘s what—here‘s what they—this is what she says O‘Reilly said to her.  All right? 

He—that she claims he said this:

“if you cross Fox News Channel it‘s not just me, it‘s (Fox President) Roger Ailes who will go after you...Look at Al Franken, one day he‘s going to get a note on his door and life as he knows it will change forever.  That day will happen, trust me.”

You know, again, don‘t—I still don‘t get, though, why legally, Gloria, explain this to me, why is Fox and Westwood One part of this lawsuit if there‘s nothing in the papers that says that they, in any way, could have or should have known that O‘Reilly was allegedly saying this stuff. 

ALLRED:  Well, first of all, they have a duty to provide a workplace that is free of sexual harassment.  And secondly, if in fact, she can prove that she felt it was futile to complain to management because that they would—that they would support Mr. O‘Reilly and that, in fact, she would be perhaps at greater risk of losing her job, then ordinarily the law does not require her to do a futile act.  In other words, there may be a defense that she has to not complaining to them.  That‘s a possibility. 

ABRAMS:  Yes.  Let me play another piece of sound from Andrea Mackris on the “Today Show” this morning.

(BEGIN VIDEO CLIP)

MORELLI:  She can answer—you know, why it was important to go forward, yes. 

MACKRIS:  Mainly the last time that I had spoken to Bill, and when this inappropriate conversation had happened, the last time, he had said it was going to be in person.  And I was—I felt extremely threatened for many reasons.  I don‘t know that I can get into any of this. 

(BEGIN VIDEO CLIP)

ABRAMS:  You know, apart from the feeling threatened part, Mercedes, bottom line is if Bill O‘Reilly did say these things to her, she worked for him, he‘s in some legal jeopardy, isn‘t he?

COLWIN:  Well certainly.  If she can show that there were these...

(CROSSTALK)

ABRAMS:  She‘s got a tape...

COLWIN:  ...comments over and over and over.

ABRAMS:  Let‘s say she‘s got a tape.

COLWIN:  But, the tapes can be taken out of context.  I can‘t tell you

how many cases I‘ve had where tapes were involved,

ABRAMS:  Come on, come one.  Did you read this complaint?

COLWIN:  taken out of context.  Because—but, but Dan.

ABRAMS:  If he—wait, wait, wait, if he said the things that are in this tapes, you can‘t be taken out of context. 

COLWIN:  Dan, you don‘t know how many conversations these two individuals had that would place what she recorded out of context. 

(CROSSTALK)

ALLRED:  But Dan...

ABRAMS:  The issue is not context, the issue is whether it was unwanted.  That‘s the—that‘s the only question. 

COLWIN:  If she‘s making these—if he‘s making these comments and saying these things to her, in isolation it has to be pervasive.  And according to her complaint there are five isolated incidents over a year-and-a-half span, that‘s not pervasive. 

ALLRED:  Well Dan, but Dan, wait a second, because she also—

ABRAMS:  Go ahead, Gloria, final 15 seconds.

ALLRED:  She also alleges in her complaint that there was a dinner where another friend of hers was present, and that Mr. O‘Reilly said—made statements that were sexually provocative...

ABRAMS:  Right, but the bottom line is...

(CROSSTALK)

ALLRED:  In that conversation so she also has the witness that may come for—that may be a witness in this case. 

ABRAMS:  Let me—let me be clear, if she has a tape—if, if she has a tape and it says exactly the same—the things that are in that complaint, there‘s going to be trouble.  But again, as I‘ve said before, you know, damages are going to be still a tough issue to prove and she‘s still got hurdles to overcome. 

All right, Mercedes Colwin and Gloria Allred.  Thanks very much. 

COLWIN:  Thanks Dan.

ABRAMS:  Coming up, the case against Michael Jackson continues.  The judge today denying a defense effort to dismiss the whole case, and he‘s allowing a lot of the evidence that police seized in the raid of Netherland to come into evidence.  This is a big, big ruling. 

And, just under three weeks before the election, Colorado citizens are deciding whether to abandon the “winner takes all” system when it comes to electoral votes.  How could it impact the race for the White House, and it could end up in the courts, coming up.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  A big win for the prosecution today in the Michael Jackson case in what some said could be a make or break motion for this entire case.  The defense had asked the judge to throw out evidence prosecutors had collected.  Today, in addition to battling over an “Abrams Report” exclusive in the courtroom, there were two important rulings, one, the judge said he will allow most of the evidence in dispute into the trial, the other that the criminal indictment against Jackson stands. 

I‘m joined now by “Santa Barbara News Press” staff for hire (PH), Dawn Hobbs who was in the courtroom today. 

ABRAMS:  Dawn, thanks for joining us, we appreciate it.

All right, so lay out for us...

DAWN HOBBS, “SANTA BARBARA NEWS PRESS”:  Hi Dan, thank you.

ABRAMS:  Basically—basically what is the judge allowing in, and why is it so important? 

HOBBS:  The judge is only suppressing 16 of more than 150 items that were seized at the Netherland Ranch.  The defense had asserted that the raid there was illegal, because they said that the officers went into areas not authorized on the warrant.  However, the judge said that—that they will allow that evidence in.  There was also a big to do about the raid at the private investigator‘s office, Bradley Miller.  The defense contended that—that the prosecutor violated attorney/client privilege with that raid...

ABRAMS:  They should have known, right?

HOBBS:  ...and wanted all of that tossed out. 

ABRAMS:  You are saying essentially that they should have known...

HOBBS:  They said that they should have known...

ABRAMS:  They should have known this guy was working for Geragos. 

HOBBS:  Exactly.

ABRAMS:  The judge didn‘t accept that argument? 

HOBBS:  No, the judge did not. 

ABRAMS:  Tell us—give us a sense of what items he is keeping out of evidence.  Anything important that the judge is saying prosecutors cannot admit it? 

HOBBS:  It is not known at this point exactly what evidence will be kept out. 

ABRAMS:  And is this considered—I mean, this is considered a big win (UNINTELLIGIBLE).  A lot of time in these pretrial motions everyone expects that the evidence is going to come in, but here the defense actually had some serious arguments as to why some of the evidence should be excluded. 

HOBBS:  Well, this is a big win for the prosecution, especially given that he is allowing the indictment to stand.  You remember the defense alleged that Tom Sneddon boldly threatened and intimidated witnesses during the grand jury proceedings and presented inadmissible evidence, and the judge said, “No, we‘re going to let this indictment stand.”  He did, however, note that the D.A.‘s conduct was what he called “regrettable” while questioning a couple of witnesses.  But, he said that it was not enough to throw aside the indictment. 

ABRAMS:  Dawn Hobbs, thanks very much.  We appreciate it. 

HOBBS:  Thank you.

ABRAMS:  Coming up:

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  I was just trying to get him out from in front of me so I could get out.  I mean I was just trying to get him away from me.

(END VIDEO CLIP)

ABRAMS:  He stabbed a man five times, killed him.  Now a Harvard student got six to eight years in prison.  The victim‘s family pled with the judge for more time.  His attorneys asked for no prison.  He testified in his own defense.  The D.A.  in the case joins us. 

And a measure on Colorado‘s ballot could determine the outcome of election 2004 and once again leave the final word for the courts.  Really? 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, he said it was self-defense.  The jury didn‘t buy it.  They convicted a Harvard student of manslaughter for stabbing a man to death.  We‘ll talk with the DA in the case, but first the headlines.

MILISSA REHBERGER, MSNBC ANCHOR:  Hello, I‘m Milissa Rehberger with the headlines.  Two suicide bombers penetrated Baghdad‘s heavily fortified Green Zone for the first time, detonating their explosives in a market and a cafe.  State Department officials say at least five people were killed, including three American contract workers.  Abu Musab al-Zarqawi‘ terror group is claiming responsibility.  Separately, four U.S. soldiers were killed today in a series of attacks in Baghdad and Ramadi.

On the day after their final debate, both presidential candidates campaigned in Las Vegas.  John Kerry addressed the American Association of Retired Persons convention.  President Bush decided to skip that convention and send First Lady Laura Bush in his place.  The President is headed instead to a rally with Republican governors.  And in unprecedented appearance before cameras onboard Air Force One, the President played down what some pundits and polls are saying about his debate performances.  The President saying he is upbeat and looking forward to the home stretch of that campaign.  Those are your headlines at this hour.  Back to THE ABRAMS REPORT.

UNIDENTIFIED SPEAKER:  ...charge this defendant, Alexander Pring-Wilson with voluntary manslaughter, what say you?  Is the defendant guilty or not guilty?

UNIDENTIFIED SPEAKER:  Guilty.

ABRAMS:  Just hours after a Massachusetts jury delivered that verdict in the case of a former Harvard student, the judge sentenced him to six to eight years in prison.  Alexander Pring-Wilson says he was acting in self-defense when he stabbed a local teen five times back in 2003.  Pring-Wilson says he was on his way home from a night out with friends when Michael Colono and another man attacked him, taking him down to the ground.  Here‘s what he says happened next.

(BEGIN VIDEO TAPE)

ALEXANDER PRING-WILSON, GUILTY OF MANSLAUGHTER:  The next like real distinct visual memory I have is I pulled my knife out of my pocket, and then I opened it up, and the next image I have of it is of me like looking at it and it‘s almost like it‘s shining and it sounds weird, I know, but that‘s like the next image I have.  And I‘m like, all right, let‘s get him away, get him away.  And so then basically...

UNIDENTIFIED FEMALE:  Show them what you did.

PRING-WILSON:  And then basically I just started trying to get the guy away from in front of me so I could get out, so I could get free.  There was no way out.

(END VIDEO TAPE)

ABRAMS:  Prosecutors didn‘t buy the story and charged him with first degree murder.  The jury settled on a lesser charge of manslaughter.  Joining me now, the woman who brought the charges against Pring-Wilson, Middlesex County, Massachusetts DA, Martha Coakley.  Good to see you again.

MARTHA COAKLEY, MIDDLESEX COUNTY DA:  Good evening.

ABRAMS:  Court TV correspondent Savannah Guthrie who watched the trial unfold from inside the courtroom and criminal defense attorney Dan Small.  Alexander Pring-Wilson‘s attorneys declined an invitation to come on this show.  All right, Ms. Coakley, you charged him with first degree murder.  So when you charged him you believed, in essence, that this wasn‘t even a fight, so to speak.  It sounds like what you believed is that he went after this guy.

COAKLEY:  Well, keep in mind the stage at which the prosecutor is charging, we have a certain set of facts.  We have a certain set of testimony.  We did not have the defendant‘s comments that he gave at trial, which he had over a year and a half to put together.  So we charged what the facts in the law allow us to in light of public safety.  We know that in any case other things develop.  Certainly by the time things come to trial the picture is very different from the time we go to the grand jury.  But we believed then and we believed at the time we went to the jury that there was sufficient evidence for a jury to return that verdict.  We also knew they could well return a lesser verdict, as they did.

ABRAMS:  So you think this is fair, bottom line.  It sounds like you think it was fair that he got manslaughter as opposed to first degree murder.

COAKLEY:  I think the jury reached a fair verdict in this case, yes.

ABRAMS:  Savannah, what were people expecting?  Let me play a little bit more of the cross-examination.  This is number eight here, this is Alexander Pring-Wilson‘s testimony.  This must have been the make or break issue in the case.  Let‘s play it, then I‘m going to ask Savannah about this.

(BEGIN VIDEO TAPE)

UNIDENTIFIED SPEAKER:  You stabbed Michael Colono, didn‘t you?

PRING-WILSON:  Unfortunately I did.  I feel horrible, OK?

UNIDENTIFIED SPEAKER:  You stabbed him.  You knew you stabbed him, and you called the police, and you didn‘t say I was acting in self-defense, I was attacked at any point in time to any of those officers, did you?

PRING-WILSON:  No, I didn‘t, because I thought that I had managed to fend them off.  They ran away.  They were OK.  It was like, OK, I don‘t want to file charges.  I don‘t want them coming back.  I don‘t want you guys putting my name out so they can come back and find me.  That‘s what I didn‘t want.

(END VIDEOTAPE)

ABRAMS:  Savannah, the not calling 911 immediately, that whole business about what he says on the 911 call, that was one of the most difficult things for him to explain, wasn‘t it?

SAVANNAH GUTHRIE, COURT TV CORRESPONDENT:  I think that was the biggest weakness for the defense, were his own words.  He did call 911 absolutely right away, and he lied.  He said that he had just witnessed a stabbing.  Then he left a voicemail on a friend‘s answering machine saying that he had stabbed someone, but don‘t tell police and then the very next day at the police station he lied again and said he happened to witness a scuffle and then he intervened to be a big guy.  This is the biggest problem for Alexander Pring-Wilson, it was the one thing he couldn‘t really explain that well on the stand, why, if he was so afraid for his very life did he lie to the police officers, the people that could have helped him.

ABRAMS:  Dan Small, this is a little more of the testimony.  It sounds like they just didn‘t believe him.  Let‘s listen.

(BEGIN VIDEO TAPE)

PRING-WILSON:  He hit me in the nose right off the bat and then he just kind of started slamming at me with his fists.  And I was kind of backed up by him and trying to stop him from just—he just kept on going for my head like over and over.

(END VIDEO TAPE)

ABRAMS:  Dan Small, bottom line, you think jurors just didn‘t believe him on the witness stand?

DAN SMALL, CRIMINAL DEFENSE ATTORNEY:  Well, I think the jurors split the baby here.  A lot of the evidence here could be viewed both ways.  You know, he lied on the 911 call, but he made the 911 call.  And there was some kind of a scuffle.  He was wrong to pull out the knife.  But the question is at what point does bad behavior become criminal conduct?  And then at what point are we overcharging?  Martha Coakley‘s the best DA in the country as far as I‘m concerned, but on this one she and I disagree.  I don‘t think you charge the maximum and then leave it up to the jury to figure it out.  I think that‘s passing the buck.  Here, whatever happened, it was not premeditated murder.  It was not atrocious conduct.  It just doesn‘t meet that standard I don‘t think.

ABRAMS:  Ms. Coakley, let‘s be clear.  You‘re just convinced that the business about self-defense is just a lie?

COAKLEY:  I think that much of it is.  I think that it was concocted afterwards.  And I think that anyone in a fight and felt he was reasonably defending himself would have called police if not right after that, then shortly thereafter.  So that was part of our analysis in looking at this.  I know there were several factors that Dan‘s pointed out that mitigated against a first degree verdict, but certainly the charges sustained, we weren‘t directed out at trial, the charge was sustained and the jury believed certain evidence.

ABRAMS:  Well, what convinced you the most? What was the most important piece of evidence, do you think?

COAKLEY:  Well, first of all, there were several.  His version at trial of what happened is in consistent with the physical evidence, where the stab wounds were.  This is a guy walking home, who is annoyed because someone starts talking to him.  And before anything happens an unarmed man gets five stab wounds.  He then covers up for the next few hours into the next day over what occurred.  None of that sounds to me like someone who‘s legitimately self-defending himself.  So it was a long trial, a lot of facts involved.  This is the first time we heard his story, when he took the stand.

ABRAMS:  Savannah Guthrie, I am out of time, but six to eight, about what people expected?  High or low?

GUTHRIE:  I think it‘s a little less then what most people expected.  The guidelines which aren‘t binding on the judge were eight to 12 years, so this was a little bit less than that, and nobody‘s happy about it.

ABRAMS:  I meant to spend more time on this.  Dan Small, sorry I didn‘t get you in on this.  But to all of you, thanks very much for coming on the program.  Appreciate it.

COAKLEY:  Thanks, Dan.

ABRAMS:  Last time it was Florida.  This time it could be Colorado. 

Voters send the presidential election to the Supreme Court?  Could it?  Could happen if a measure on the ballot designed to change the way Colorado votes for president passes in November.

And do you think you have a great idea for the next hit reality TV show?  Take it from me, forget about it.  Someone will beat you to it.  The law won‘t protect it.  It‘s my closing argument. 

(COMMERCIAL BREAK)

ABRAMS:  Picture this, the United States Supreme Court interprets a state law to determine the outcome of a presidential election.  Oh, wait, that happened.  Picture it happening again.  Not in Florida and not in 2000, but this time Colorado 2004.  NBC‘s Pete Williams has the story.

(BEGIN VIDEO TAPE)

GEORGE W. BUSH, U.S. PRESIDENT:  Thank you all for coming.  Listen, I‘m here in Colorado asking for the vote.

PETE WILLIAMS, NBC CORRESPONDENT (voice-over):  If it passes it would be the biggest change ever in how a state votes for president.

SEN. JOHN KERRY, PRESIDENTIAL CANDIDATE:  Thank you La Junta.  It‘s great to be here with you.

WILLIAMS:  The issue:  Should Colorado abandon the winner-take-all system and divide up electoral votes based on popular vote.  Supporters say the current system doesn‘t reflect how people actually vote.

UNIDENTIFIED FEMALE:  The entire state of Colorado is not voting for

one person.  If you were giving away one electoral vote the current system

would make sense

WILLIAMS:  If it passes, Colorado would split its 9 electoral votes according to each candidate‘s state vote percentage, and that could change who gets elected president.  Here‘s why: It takes 270 electoral votes to win.  If there‘s a close vote in the rest of the country and say candidate A gets 267 electoral votes and candidate B 262 then under the current system, if candidate B wins Colorado he wins all nine electoral votes there and the White House.  But if the Colorado vote splits 5-4, candidate A would pick up four votes of those nine, making him the winner. 

What‘s more, if this proposal passes in November, it would count for this election.  If Colorado had used this system four years ago, Al Gore would now be president.  But opponents say the plan would diminish the value of Colorado to the candidates, since the prize would no longer be all nine votes.

UNIDENTIFIED FEMALE:  It would take Colorado and use us as political lab rats in the whole effort to reform the Electoral College.  They want Colorado to step back and marginalize itself on the national political scale.

WILLIAMS:  Republicans in Colorado who have a slight edge and could stand to lose the most, generally oppose the idea.  But politics aside, there is a big legal question that could end up at the Supreme Court.  The U.S. Constitution says a state‘s legislature must decide how to tally its own electoral vote, but this change would be made by voter initiative, not the legislature.

RICHARD PILDES, ELECTION LAW EXPERT:  I‘m sure the last thing the Supreme Court wants is to get in the middle of another election dispute, but on the other hand, this is really a basic constitutional question that the federal courts would undoubtedly have to step in and answer.

WILLIAMS (on camera):  If the measure passes, the drawn out legal battles it spawns could make Colorado the Florida of 2004.  Pete Williams, MSNBC News, Washington.

(END VIDEOTAPE)

ABRAMS:  So let‘s make it clear.  It‘s worth repeating what Pete just said.  Under Article II, section i, the Constitution states, “Each state shall appoint in such manner as the legislature thereof may direct a number of electors equal to the whole number of Senators and Representatives to which the state be entitled in the Congress.”

In other words, power belongs to the state legislature, not the individual voter.  Just today a Colorado man who simply describes himself as a registered voter filed a lawsuit challenging the November 2 ballot saying it‘s up to lawmakers to determine how those votes get divided up.  So, the question, do voters even have the power to change the electoral college process, and also, is it fair to have an initiative that would apply to this election on the ballet during this election?

My take: First of all, I hope this fails at the ballot box.  Having one state with a completely different system to allocate its vote, particularly one with nine electoral votes seems unfair and I think would lead other states to engage in partisan shenanigans. 

As a legal matter, apart from the language of the legislature versus the voters, what about all votes being equal.  Yes, each state is allowed to decide for itself, but in Bush v. Gore the Supreme Court ordered the recounts because of equal protection problems that all votes did not end up being considered equal.  Couldn‘t that sort of argument apply here as well?

Joining me now to debate the topic, attorney Mark Grueskin, the person who drafted amendment 36, he is in Denver and in Washington, DC is Ronald Christie, attorney and former deputy assistant to Vice President Cheney for domestic policy.  Gentlemen, thanks very much.  Appreciate it. 

All right, Mr. Grueskin, aren‘t there two real problems here?  Number one, the issue is that people are voting for it in the same election where it would apply, and don‘t you sort of see the problem I‘m talking about which is every state, depending on how their candidate is doing will try to make some sort of move to change the rules before the election.

MARK GRUESKIN, ELECTORAL ATTORNEY:  Well let‘s talk about your first issue first.  The fact that the people are voting on it on the same election where they are voting for president makes it absolutely appropriate.  You have got the same electors voting on the presidential race as are the electors who are voting on this initiative.  So they are the ones who are deciding to bind themselves.  Why is that unfair?

ABRAMS:  Because the whole point is the electoral system in every other state doesn‘t allow a popular vote where your vote is necessarily one vote one person, it‘s that electoral vote meaning you win your state, you get those electoral votes and that‘s the way that the framers wanted it.

GRUESKIN:  Well, the framers wanted the legislatures to decide how to do it.  In 1876 when Colorado became a state, Colorado allocated its electors not based upon the popular vote, but based upon what the people in the legislature decided to do.  And then, after 1877, Colorado‘s abridged constitution said that it was going to be done by popular vote.  So Colorado has as history, a rich, strong, tradition of granting the popular vote special precedence when it comes to presidential candidates.

ABRAMS:  Mr. Christie, my concern—and my concern more importantly, and you can debate that other issue, more importantly is that every state is going to start engaging in partisan shenanigans before the election and if it helps one candidate or the other, one party is going to be for it, the other party is going to be against it and then you are going to have these different systems in different places and I think we‘re just going to send our system into a mess.

RONALD CHRISTIE, ELECTION ATTORNEY:  Dan, you are absolutely right.  And that‘s exactly what the problem with this initiative is all about.  The Constitution is very clear on its face as you discussed at the top of the piece.  Article II, section i says that the legislature, not the people directly, but the legislature is in charge of appointing those electors to the Electoral College system. 

And also as you described, I can see it coming now, you‘re going to have one party where they think they have a partisan advantage and they‘re going to start out with the shenanigans and then before you know it, each election is going to be contested and the thing that‘s important here to realize is that in a presidential election year, the last thing we need to do is to bring forth an initiative such as this that ultimately is going to wind up in the federal courts and could drag out the election results for several days.

ABRAMS:  The latest polls says in-favor 47 percent, 35 against, 18 percent undecided.  Go ahead Mr. Grueskin.  You wanted to respond?

GRUESKN:  Well, I‘m not surprised that people in Washington don‘t like the idea that are being advanced by the people of Colorado.  But wrong‘s wrong.  And, frankly, you‘re wrong too when you say that it‘s only up to the legislature.  For over 90 years the U.S. Supreme Court has said that the legislature includes the power of the people to act by initiative and referendum.  So frankly, back in the 19th Century, you might well have been right.  But for more than 90 years that just hasn‘t been the law at the Supreme Court level.

ABRAMS:  Go ahead Mr. Christie.

CHRISTIE:  You know, it doesn‘t have anything to do with whether I‘m in Washington.  I‘m a California native, and I can tell you that in California there are a number of propositions and a lot of voter drives out there, this is a question of fairness.  Is it fair to take forth an initiative where the people are not delineated the power legally under the constitution to change the Electoral College system that could eventually harm the electoral process for the President of the United States?

ABRAMS:  And whether they‘re allowed or not to me is a closer question than my confidence that this is going to create a mess in future elections as well if we start letting each state decide how they‘re going to apportion it.  I think you‘re just creating a mess. 

GRUESKIN:  Wait, wait, wait, wait, wait.

ABRAMS:  You get 10 seconds.  Go ahead.

GRUESKIN:  Each legislature has the right to change their mind right now.  They could take it back and put it back within the legislative body.  So if you‘re worried about shenanigans, today ought to be the day you worry about it, not because of this initiative.

ABRAMS:  Well, no, this initiative is happening to apply to this election.  If this were going to apply to 2008, I‘d be a lot less concerned about it than having an initiative on the ballot that applies to this election.  So that‘s my concern.

CHRISTIE:  That‘s absolutely right.

ABRAMS:  But I appreciate it.  Ronald Christie, Mark Grueskin, appreciate it.

CHRISTIE:  Pleasure, Dan.

GRUESKIN:  Good to see you.

ABRAMS:  Coming up, if you have a great idea for a reality TV show that you just know would be a great hit, take advice from someone who thought the same thing, don‘t bother, someone‘s already thought of it, or if someone copies it, your lawyer won‘t be able to do anything to protect you.  My closing argument coming up.

(COMMERCIAL BREAK)

ABRAMS:  My closing argument.  Why it‘s not worth your time or effort to create the next big reality show concept.  I know.  You‘ve got next “Apprentice” or “Survivor,” the one idea that‘s going to have Americans glued to their sets.  You can already see your new office with the executive producer plaque out front.  But take it from me.  Give it up.  Not because your concept wouldn‘t be a hit.  Not because it is not a great idea.  Because you‘re going to find it very difficult to protect the copy right on it and increasingly, networks have already come up with many of the concepts.

I know how it feels.  I had a reality show idea that was somewhere between “Dateline NBC” and “The Swan.”  After passing it to a few people in the biz and being summarily blown off, I investigated what I could do to protect my concept.  In my paranoid and delusional world, someone was going to pilfer my creativity and make millions.  The legal answer?  Can‘t do a whole lot. 

In fact, in the fights between networks over who stole whose concept, so far not one has been able to protect its concept from alleged theft.  That doesn‘t mean they don‘t try.  Two reality boxing shows are in involved in litigation.  CBS sued ABC saying that “I‘m a Celebrity, Get Me Out of Here” was a “Survivor” rip-off.  ABC argued that Fox‘s “Trading Spouses” stole the concept of “Wife Swap.”  The list goes on and on.

But time after time, the courts ruled you can‘t copyright an idea.  And most of these reality show concepts are considered, quote, “too generic to protect.”  So take it from me.  I had fun working on it.  I still think, it would have been a hit!  I can‘t tell you what it is because I still hope to make millions off it.  But, in quote, “Reality, mine probably ain‘t worth squat, even if I see it pop up on the air somewhere.”

I‘ve had my say.  Now it is time for your rebuttal.  In Tuesday night, in my closing argument I said both President Bush and Senator Kerry‘s campaigns are dissecting each other‘s words and taking it out of context like only lawyers would.  And both sides are doing all of us a disservice in their efforts to convince and deceive by twisting what the other has said.  Many of you agreed.

Fort Wayne, Indiana, Dr. Bill Jarvis:  “I feel you commentary is on target.  Both Republicans and Democrats take comments out of context of their opponent to prove their point.  When does it stop?”

Tom Gartner in San Rafael, California:  “You hit the nail on the head.  A candidate who has to distort his opponents position is a candidate who doesn‘t have anything to say himself.”

From Wheaton, Illinois, Barbara Smith:  “This political lawyering is what makes the citizenry sick to death of this pre-election bickering.”

And D.J. Howard, from Missouri:  “I would like to commend you for your stance on pre-election rhetoric and your eagerness to cut through.  No matter where your political sympathies lie, as a Bush supporter, I agree with you 100 percent.”

Also on Tuesday, a pro gay group called the Log Cabin Republicans filed a complaint challenging the U.S. Military‘s don‘t ask, don‘t tell policy on gays in the military.  I said at this time in our history when there are problems with recruitment, our security is too important, we don‘t need more reason to exclude people from the service.

Justin Overbaugh:  “The truth of the matter is that homosexual behavior is not congruent with military service.  If numbers are short, does that mean we should lower standards to meet quotas?”

Justin, how do you figure that allowing gays who are already in the military to admit they‘re gay is a lowering of standards?

From Deli, California, Retired Navy Veteran Nikolas von Tech:  “If a patriotic man or woman wants to volunteer to serve our country, I don‘t give a barnacle if he or she diddles goats on liberty and off-base, as long as the goat is over 18 and consenting.”

Kenna Nauenberg in Riverside, California:  “If a gay man or lesbian wants to enlist in the military and protect my cowardly heterosexual behind, more power to them and a HUGE thank you as well!”

But Jeffrey Cooper from Jamesville, North Carolina has a solution:  It appeared the best way the issue of gays in the military can ever be solved is to have a branch in the military dedicated to allowing homosexuals to serve.  It will continue the militaries discipline and cohesion to remain intact and everybody can fight and die for the nation equally.”

Separate but equal, Jeff.  Whoa!  We haven‘t heard that one in a while.  But in this case, a gay branch of the military?  You‘re joking, right?  Your emails, Abramsreport, one word @MSNBC.com.  We go through them at the end of the show.  Coming up next, HARDBALL with Chris Matthews.  Chris met up with John Edwards on the campaign trail this afternoon, his exclusive interview with the VP challenger.  Coming up.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

END   

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