updated 12/17/2004 2:01:20 PM ET 2004-12-17T19:01:20

Guest: Darryl Hunt, Pete Clary, Mark Rabil, Joe Tacopina, Solomon Wisenberg, Chip Babcock, Bob Kohn

DAN ABRAMS, HOST:  Coming up, he spent 18 years in prison for a rape and murder he didn‘t commit.  Today he watched in court as the real killer pled guilty.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  (UNINTELLIGIBLE) until DNA helped police find the real killer.  Today that man is sentenced to spend the rest of his life behind bars.  And now Darryl Hunt will tell us what it was like to face the man whose act cost him his youth.

And a New York D.A. is now reportedly investigating one time homeland security chief nominee Bernard Kerik.  We ask his attorney about the latest allegations and it‘s not just nanny gate anymore.

Plus, the government cracks down on reporters uncovering dirt about the government.  They say they‘re just enforcing the law, but is it really an effort to put an end to journalists questioning what the government does and how they do it?

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket, a story of justice gone wrong and finally right again.  Darryl Hunt convicted of first-degree murder not once but twice, sentenced to life in prison both times.  Today he‘s a free man.  After almost two decades in prison, dreaming of the day when he would face the person truly responsible for raping and murdering a 25-year-old woman, the crime he was serving time for, well, Darryl Hunt finally got his wish today.

He sat just feet away from the real killer who pleaded guilty to kidnapping, raping, murdering, and robbing Deborah Sykes back in 1984.  We‘re going to talk to Darryl Hunt and his attorney in a moment, but first, more from NBC‘s Bob Dotson.

(BEGIN VIDEOTAPE)

(SIRENS)

BOB DOTSON, NBC NEWS CORRESPONDENT (voice-over):  The crime was incredibly violent.  Deborah Sykes, a 25-year-old newspaper copy editor, beaten, raped, and stabbed 16 times.  Attacked in the early morning on a downtown street in Winston-Salem, North Carolina.  Her body dumped in this small, rundown park 20 years ago.  Witnesses identified 19-year-old Darryl Hunt as the killer, even though he did not fit the initial descriptions given police.

There was no physical evidence linking Hunt to the crime, but he was convicted and sentenced to life in prison in two separate trials.  A decade ago, advances in DNA testing ruled Hunt out as the rapist, but since he was also convicted of her murder, he remained in prison for 18 years.

UNIDENTIFIED GROUP:  Darryl Hunt free.  Darryl Hunt free.  Darryl Hunt free...

DOTSON:  An extraordinary sequence of events set forth the truth.  Judge Andy Cromer (ph) ordered crime lab technicians to compare the DNA evidence with the database of state prisoners.  That led investigators to this man, Willard Brown, whose DNA they said matched the semen taken from Deborah Sykes‘ body.

UNIDENTIFIED MALE:  He‘s made a statement that he is responsible for the crime and he acted alone.

DOTSON:  Hunt was not entirely free yet.  Merely released on bond while detectives made sure he wasn‘t an accomplice to the murder.

(on camera):  In March, 1986, detectives did interview Brown about the Sykes case, but mistakenly thought he was in prison at the time of the rape, so they let him go.

(voice-over):  Last November, Winston-Salem police chief Linda Davis told an investigator to check again.

UNIDENTIFIED FEMALE:  He found that Willard Brown was released from prison in June of 1984, prior to the August murder of Deborah Sykes.

DOTSON:  So Darryl Hunt spent half his life in prison because of a typo.

UNIDENTIFIED MALE:  Today we acknowledge a mistake was made.  We will dismiss this case with prejudice.

DOTSON:  Before Hunt left a free man, he spoke from his heart to Mrs.

Sykes‘ mother.

UNIDENTIFIED MALE:  As hard as it is for me (UNINTELLIGIBLE) I had nothing to do with (UNINTELLIGIBLE).  (UNINTELLIGIBLE)

UNIDENTIFIED MALE:  People talk about closure, but there will never be closure because closure means you forget something.  That was her daughter, so she‘ll never have closure.  You just ask for peace.

(END VIDEOTAPE)

ABRAMS:  What a story.  That was NBC‘s Bob Dotson reporting.

Joining me now, the man at the center of the story, Darryl Hunt, Mr.  Hunt‘s attorney Mark Rabil and Pete Clary, who represents Willard Brown, the man who pleaded guilty today.  Gentlemen thanks very much for coming the program.

Mr. Hunt, I have just got to ask you, what was it like sitting in the courtroom hearing the real killer, the real rapist admit that he committed the crime that you‘d served so much time for?

DARRYL HUNT, WRONGLY ACCUSED OF MURDER:  It was a relief, a blessing.  I just thank God that he was alive and I was alive to witness this day to finally clear my name.

ABRAMS:  Had you pictured this?  I mean you know you have a lot of time in prison to think and to dream and to imagine.  And I‘ve got to believe that there were times when you were sitting there knowing you were innocent and thinking, I can just picture it.  I can just picture sitting there in court with the guy who really did it pleading guilty.

HUNT:  Yes.  I have thought about seeing—I‘ve wanted—always wanted to see the person who committed the crime.  I really wanted to ask him, you know, why he didn‘t come forward, but, you know, that‘s—that was out of my hands.  It was just—I knew I was innocent and there was nothing that I could do other than proclaim my innocence.  And it was by the grace of God that he allowed Willard Brown to live to this day and allowed me to live to see this day.

ABRAMS:  And Mr. Clary, did your client ever provide any explanation as to why he didn‘t come forward earlier?  I mean I assume it was just to avoid the long arm of justice.

PETE CLARY, WILLARD BROWN‘S ATTORNEY:  (UNINTELLIGIBLE) There was no good reason other than to save himself, and I suppose to him that was a very good reason.

ABRAMS:  I want to ask Mr. Rabil a question.  I want to play this piece of sound.  This is from the mother of the victim in this case.  And this is a piece of sound from her about a year ago on the day that charges against—we don‘t have this ready yet.  All right.  We‘ll have it in a minute.  But these were the charges—when the charges against your client were dismissed, before we go to that, this was a year ago, right, that the charges against your client were dismissed?

MARK RABIL, DARRYL HUNT‘S ATTORNEY:  Almost a year.

ABRAMS:  All right and we have it ready?  Cory—all right.  This is Evelyn Jefferson, the mother of the victim.  This is a year ago on the day the charges were dismissed.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  I do not believe in Mr. Hunt‘s innocence.  And I believe that what you‘re about to do here today is set free a guilty man who‘s guilty of my daughter‘s death.

(END VIDEO CLIP)

ABRAMS:  Wow.  All right.  Now her reaction in court today seemed to be a little bit different, Mr. Rabil.

RABIL:  Right.  We didn‘t see—I couldn‘t see her reaction.  I know that she had nothing to say.  And I‘m assuming and hoping that perhaps she has now accepted the truth that Willard Brown acted alone, but we‘re very sympathetic towards her, though, because for nearly 20 years she was told by police and prosecutors that Darryl Hunt was the man who did this to her daughter.

ABRAMS:  What was the evidence?  I mean was it all eyewitness testimony?  I mean there was nothing but people who falsely identified your client?

RABIL:  It was purely an eyewitness case, a Klansman, a man who described someone that didn‘t look anything like Darryl and others who hadn‘t come forward until years after the crime.  Completely to me incredible eyewitness testimony, but it shows the problems inherent in eyewitness testimony.  No physical evidence ever.

ABRAMS:  And Mr. Clary, there is no question, is there, at this point, that your client committed this crime, correct?

CLARY:  No question.  No legal question at all.  And of course, they had the DNA evidence and they had his statement.  That‘s powerful evidence.

ABRAMS:  All right.  Because you know, sometimes we see the cases where people are released on a technicality—this is innocence, ladies and gentlemen.  This is innocence.  We‘re not talking about reasons to let someone free.  We are talking about innocence.  Let me take a quick break here.

I‘m going to ask everyone to stay with us because when we come back, you know, Mr.—you have heard about Mr. Hunt‘s story, but you‘re not going to believe what he‘s done with the money he received from the state when he was released.  Tell you about that in a minute.

And the slew of allegations coming out against former homeland security chief nominee Bernard Kerik has now reportedly led to a preliminary investigation by the Bronx D.A.  We talk to Kerik‘s attorney.

Plus, is the government retaliating against journalists for uncovering government corruption?  Why are they suddenly forcing reporters into court and threatening jail time to force them to reveal their sources?  We debate.

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, what does a man do after serving 18 years for a crime he didn‘t commit?  He joins the fight.  More with Darryl Hunt coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

HUNT:  All the praise is due to God to be finally free and vindicated.

(END VIDEO CLIP)

ABRAMS:  Darryl Hunt lost almost 19 years of his life after two different juries convicted him of beating, raping, and stabbing 25-year-old Deborah Sykes back in ‘84.  He was sentenced both times to life in prison.  Now before his second trial in 1990, Hunt refused a plea agreement that would have let him walk with time served, maintaining his innocence.  He said he wanted to clear his name.

The law is finally on his side.  He is out of prison, pardoned, and it appears there is no question at this point that he is innocent.  Today he watched as another man, Willard Brown, pleaded guilty to the murder.  If you think about what‘s happened in the past 18 years of your own life, that‘s what Darryl Hunt has lost.

All right, Mr. Hunt, why did you refuse that deal?  Back in 1990 they say to you just serve time served.  Yes, you‘re going to have a conviction on, but you get to leave prison.  Instead, you had to serve another 14 years.

HUNT:  One is that I did not commit the crime, and I didn‘t think it would be justice for the family of Ms. Sykes to admit to a crime that I didn‘t commit.  I wanted out of prison, but I also knew that I couldn‘t live telling a lie on myself that I committed a crime that I know I didn‘t commit.

ABRAMS:  Well that‘s a brave, brave move.  I‘ve got to tell you.  I mean it‘s hard to say that—someone in my position someone who just served 14 years additionally for a crime he didn‘t commit.  Let me ask—what have you been doing since then?  You‘ve got something like $300,000 I understand from the state when you were released.

HUNT:  Yes, and I have been going to school and I also started a project called the Darryl Hunt Project for Freedom and Justice.  And it‘s a project based around people who are innocent, who like myself to try to stop someone else from having to go through what I went through for the last 18 years.

ABRAMS:  How do you evaluate it?  Do you look at their cases and evaluate the evidence?  Do you have a team of lawyers?  How do you do it?

HUNT:  Yes, we have a team of lawyers.  We‘re also working with the Innocence Project to evaluate each case and try to work and help free innocent people.

ABRAMS:  And so you spent your own money on creating that project.

HUNT:  Yes, some of my money, the money that I raised from speaking engagements that I go around the state speaking and people pay me and I use that money to help start the foundation.

ABRAMS:  Wow.  Mr. Rabil, when did you take on this case?

RABIL:  Just over 20 years ago I was appointed with another attorney in September 1984.

ABRAMS:  So you represented him at trial?

RABIL:  Right, the first trial in 1985 and I helped out at the second trial.  Then we worked on all the appeals and clemency and motion for new trial recently.

ABRAMS:  And what do you think the reason was that you couldn‘t win those trials?  What was the problem in both of those cases?

RABIL:  Well, race is always a factor.  There‘s a beautiful, young, white journalist allegedly killed—I guess we now know was killed by a black man, and in the south as elsewhere, that‘s a difficult problem to surmount.  Also, with the number of eyewitnesses—you had black and white eyewitnesses from completely different backgrounds.  One Klansman, one worker who worked nearby, and the juries just felt that the coincidences were too strong and that‘s why they believed the Klansman and the other people that it was Darryl...

ABRAMS:  He was 12 miles away, right, when it happened?

RABIL:  Darryl was—I don‘t know if it was 12 miles.  It was several miles away.  Right.

ABRAMS:  Unbelievable story.  Mr. Hunt, good luck.  What do you say?  Good luck with the rest of your life.  Sounds like you‘ve already got a good start going.  Thanks a lot...

HUNT:  Thank you.

ABRAMS:  ... for coming on the program.  Mark Rabil and Pete Clary, thank you as well for taking the time.

CLARY:  Thank you.

ABRAMS:  Coming up, a preliminary criminal investigation now underway into whether former homeland security chief nominee Bernard Kerik used a contractor with alleged mob ties to renovate his New York City apartment, all while Kerik didn‘t have a lot of cash.  His attorney joins us to explain.

And freedom of the press isn‘t always free as one Rhode Island reporter found out, sentenced to six months house arrest after he refused to give up a source he says tipped him off to government bribery, but it‘s just the beginning.  I believe the government is just attempting to shift blame to reporters—excuse me, who haven‘t broke any laws.  We debate this growing trend coming up.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  He made his name protecting others, but now former New York City police commissioner Bernard Kerik is trying to save himself.  His attorney, Joe Tacopina, is speaking out defending his client over a flurry of allegations that have surfaced since withdrawing his name as homeland security secretary nominee.  We‘ll speak to Joe in a minute, but first NBC‘s Carl Quintanilla takes a look back at a week Bernard Kerik would probably like to forget.

(BEGIN VIDEOTAPE)

CARL QUINTANILLA, NBC NEWS CORRESPONDENT (voice-over):  For America‘s former top cop, damage control.  Bernard Kerik defended by his attorney against mounting allegations.

JOSEPH TACOPINA, BERNARD KERIK‘S ATTORNEY:  Bernie Kerik is a hero and that can‘t be changed by all that‘s gone on here in the last week.

QUINTANILLA:  In just a week, Kerik‘s sterling image has been tarnished not just by nanny gate, but multiple scandals—an extramarital affair, a bankruptcy, and now reports he failed to fill out a questionnaire for FBI security clearance.

UNIDENTIFIED MALE:  I figured a lot of this stuff would come about as it has in the past and you know, I deal with it when it came.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  Thank you for serving, Bernie and congratulations.

QUINTANILLA:  Some wonder how Kerik ever expected to sneak past Senate confirmation hearings.  Those controversies would have drowned out his rags to riches life story and his reputation as a tough as nails New York City cop.

(on camera):  Critics say it was that reputation on the streets of New York that allowed Kerik to keep his secrets well hidden, even if they endangered his political future.

JOHN AVLON, “THE NEW YORK SUN”:  You‘ve got a national hero who appears he was careless in his private life.

QUINTANILLA (voice-over):  Kerik‘s public future may not necessarily be over.

LOU COLASUONNO, CRISIS MANAGEMENT EXPERT:  Down the road, there will be opportunities I think for him to maybe recover some of the face that he‘s lost in this fight.

QUINTANILLA:  A fight that continues for now even with his nomination already gone.

Carl Quintanilla, NBC News, New York.

(END VIDEOTAPE)

ABRAMS:  But his fight could grow even tougher.  Today the “New York Post” reporting that the Bronx D.A.‘s office has opened a preliminary investigation—I don‘t know exactly what that means—into Kerik‘s apartment there.  They are—quote—“gathering information about the unit‘s improvement and how Kerik paid for it.”  According to the paper, New York‘s former top cop was in serious financial trouble at the time.

Joining me now is our friend Joe Tacopina who is also Kerik‘s lawyer. 

Joe, good to see you.

TACOPINA:  Hey Dan.

ABRAMS:  All right, so let me get out of the way the issues I don‘t

care about.  I don‘t care about these alleged affairs.  I don‘t care about

this business about a civil warrant for failing to pay a condo bill.  That

·         those to me seem to be non-issues as a legal matter.  The nanny business I got to tell you doesn‘t even particularly trouble me, but let‘s just get that one out of the way here.

TACOPINA:  OK.

ABRAMS:  He admits some level of wrongdoing in connection with not filing the proper papers for his nanny, correct?

TACOPINA:  Dan, what he admits is responsibility.  He accepts—and fully accepts responsibility.  He apologized both to the president, to Mayor Giuliani and to everyone, quite frankly, for the embarrassment that that caused.  As far as his wrongdoing, I will tell you he was first alerted to any sort of problem initially with the back taxes the Wednesday before he withdrew, which is only two days before he withdrew.

He himself and his firm did a further investigation into that because

they saw that issue arise, and it was then, Dan, that they realized there

was some immigration issues and potential problems there.  At that point he

·         and no one came to Bernie and said, here, you have a problem with this immigration.  He notified the White House and told them I have to step back.  There‘s a problem.

ABRAMS:  But he‘s going to have to pay—he‘ll have to pay some either back taxes or fines, et cetera, or something, right?

TACOPINA:  That process, Dan, was already initiated by his accountant when he realized that there was some back tax issues that they hadn‘t even quite frankly thought about and Bernie really wasn‘t involved in that process, but he accepts responsibility.  He‘s not trying to make an excuse.  It caused him to step aside.

ABRAMS:  And at worst you‘re talking about there are fines, so...

TACOPINA:  Right.

ABRAMS:  ... let‘s move on from that.  Let‘s talk about what I view as some of the more serious—I don‘t know what a preliminary investigation is, by the way...

TACOPINA:  Yes, well...

ABRAMS:  ... but let‘s just assume that it means that the Bronx D.A.  is looking into this, whatever that means.  Let me just lay out the issue and then going to let you respond...

TACOPINA:  OK.

ABRAMS:  We‘re talking about the Bronx -- 1999, the “New York Daily News” reports Kerik allegedly had a contractor and engineer convert two first floor apartments into one large home.  The contractor later was sentenced to four and a half years in prison in a big rigging scandal.  The engineer sentenced to five years probation for filing false documents with New York City‘s Department of Environmental Protection and at the time Kerik was New York City‘s Correction Department commissioner and apparently was struggling financially.

Now I know your position is that he purchased this after these two had been put together.  Did he work with any of these people?  Did he hire and work with any of these questionable people, meaning the engineer, the contractor, any of them?

TACOPINA:  Dan, absolutely not and that‘s part of the unfortunate, you know, collateral affects of what‘s gone on here.  Look, Bernie has admitted some wrongdoing in regards to the issue with the nanny and he said he had a problem and stepped aside.  From that you‘ve had a piling on like I have never seen, Dan.  I mean things are coming out—you mention some of them that really have nothing to do with his qualification as a homeland security chief.

He still would have been the best guy for the job.  The allegation that you just talked about where it was said that they‘re going to do a preliminary investigation, we welcome a preliminary investigation.  We welcome a thorough investigation because I want his name to be clear.  Bernie Kerik never hired either of those two men, never met either of those two men who allegedly had organized crime ties.  They were hired by the building before Bernie bought the unit and that needs to be said and said loudly.  And we‘ll say it to the Bronx D.A. or...

ABRAMS:  Yes.

TACOPINA:  ... anyone else who wants to hear it.

ABRAMS:  There is a lot of talk, though, in the context of this and also this guy, Lawrence Ray, the guy who was the best man at Bernard Kerik‘s wedding...

TACOPINA:  Right.

ABRAMS:  ... a lot of talk about how he suddenly ended up with a lot

of money when he didn‘t have any.  And it sounds like the suggestions are -

·         I don‘t think anyone is suggesting anything like bribery, but I think people are suggesting gifts that were not reported to Kerik—your response.

TACOPINA:  Well, Lawrence Ray was his best friend in 1998 or before 1998 and yes, he exchanged gifts with Bernie.  The family has exchanged gifts—nothing out of the ordinary.  No multimillion dollar exchanges.  We are talking about a $2,500 gift, you know, here or wedding gift of $10,000.  I mean that is the extent of what we are talking about...

ABRAMS:  But...

TACOPINA:  ... not wealth.

ABRAMS:  ... that—exactly - and...

TACOPINA:  Right.

ABRAMS:  ... that‘s all it is...

(CROSSTALK)

ABRAMS:  ... a possible misdemeanor though, Joe, right?  I mean a misdemeanor, failure to report gifts, punishable after one year in prison, $1,000 fine.

TACOPINA:  Well, if in fact he failed to report it and if in fact he had intent and consciously avoided that, but we‘re not even there yet Dan.  First of all, those statute of limitations are gone on that.  I don‘t believe Bernie did anything illegal, but the statue of limitations are gone.  So that‘s not even a legal issue.

What I‘m saying is this.  Lawrence Ray is someone who then winds up, you know, under federal indictment.  Bernie has to end his relationship with him, which he does.  Lawrence Ray has told a million people he was going to enact revenge on Bernie.  This is what he is attempting to do.  All these stories, Dan, all of these stories are things that have been put out there in the rumor mill and the press.  Bernie could do nothing—I mean just the story with the Riverdale apartment...

ABRAMS:  Yes.

TACOPINA:  ... I mean look how inaccurate that is and the documents will show it.  Bernie never met these people and somehow he‘s responsible because the building hired...

(CROSSTALK)

TACOPINA:  ... men who happen to know someone who was in organized crime.

ABRAMS:  I got - let me get quick answers because I‘m out of time here.  But any ethical violations by Kerik here?

TACOPINA:  None that I‘m aware of.  I mean look, obviously, everything is being looked over with a fine toothcomb, both by Bernie...

(CROSSTALK)

ABRAMS:  ... it sounds like there were some ethical problems here...

TACOPINA:  You know, but...

ABRAMS:  ... it does sound like that.

TACOPINA:  ... Dan, it sounds like they‘re - like connecting the dots to try and get to an ethical violation.  You know, this guy, everyone seems to be willing to forget what he is.  He made contributions that should be three or four lifetimes worth of contributions, both for the country and the city.

He risked his life in Iraq.  I mean people are even questioning the fact that he served only three and a half months in Iraq as opposed to six.  I mean would anyone else do what he did on a volunteer basis...

ABRAMS:  Are you going to sue anyone over this Joe?  Are there any possible lawsuits?

TACOPINA:  You know, that‘s not even something we‘ve discussed at this point.  You can imagine what this last week has been like Dan.  I just want to get him through this...

ABRAMS:  Joe, you‘re doing...

TACOPINA:  ... and we will.

ABRAMS:  ... a great job representing him and it‘s great to have you back on the show.

TACOPINA:  All right, Dan, thanks.

ABRAMS:  Coming up, the government putting reporters behind bars for refusing to reveal their sources.  I think some in the government are afraid of  in-depth investigations, now trying to punish the press.  Shocker, not everyone agrees with me (UNINTELLIGIBLE).

And celebrities give their kids some crazy names.  Gwyneth named her daughter Apple.  Wait until you hear what one Dutch father wanted to call his baby girl.  Let‘s just say it certainly might have led to problems at the playground.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, the press is supposed to try to uncover government wrongdoing, but I say some judges and prosecutors are trying to protect themselves and trampling on the Constitution at the same time.  First the headlines.

(NEWS BREAK)

ABRAMS:  Are federal prosecutors and judges—or it‘s not just federal—prosecutors waging an undeclared war on the media?  Right now major battles underway on three fronts where media attempts to expose government corruption or just write critically about government officials have triggered investigations that have at least two reporters threatened with jail time, another sentenced to house arrest, and others effectively prevented from doing their jobs.

Start with issue one:  The Valerie Plame investigation.  You know this case.  An undercover CIA agent married to a Bush administration critic and former ambassador Joe Wilson.  Her name was leaked to conservative columnist Robert Novak who used it in a column attacking Wilson.  Now, he didn‘t commit any crime, but an executive branch official who intentionally reveals the name is committing a crime if he or she knows the person is an undercover CIA agent.

But so far the only people who could go to jail for this are “TIME” magazine‘s Matthew Cooper and “The New York Times‘” Judith Miller.  Both face contempt charges for refusing to tell a federal grand jury who their sources were for the information.  Again, it‘s not illegal to write about it and Cooper was exposing the leak and Miller didn‘t even write about the case.  So, why would she keep silent?

(BEGIN VIDEO CLIP)

JUDITH MILLER, “THE NEW YORK TIMES” REPORTER:  In order to do my job, I have to protect my sources.  I have to protect their confidentiality.  When I give a pledge of confidentiality to a source, I really have to honor that.

(END VIDEO CLIP)

ABRAMS:  That‘s not it.  A reporter for NBC‘s Providence affiliate, WJAR, has been sentenced to house arrest for six months for refusing to give up a source who he says helped him expose government wrongdoing and the guy turned himself in anyway.

Then there‘s the Maryland governor, Robert Ehrlich.  He has banned his administration from talking to a particular reporter and columnist who apparently offended him.

“My Take”—let‘s be clear.  While the news media is anything but pure, in these cases it‘s doing its job, investigating the government.  For prosecutors and judges to crack down creating situations to make the reporters have to refuse to testify is outrageous.  They‘re not looking to solve murders here, but to solve leaks.  And sometimes these leaks are embarrassing, but in the end, good for the public to know about.

The reporters were committing no crime.  Remember that.  The government is making it a crime by saying, well, we can‘t find anyone else to blame.  And sentencing Jim Taricani even though his source came forward sure seems like retaliation.  Bottom line, when the government threatens reporters with jail time for these types of investigations into who leaked what, it will keep the media from investigating the government.

Good for the government, bad for everybody else who wants corruption or wrongdoing exposed.  Now for full disclosure, my dad, Floyd Abrams, is representing Judith Miller and Matthew Cooper in their case against the government.  I swear this is my own opinion.

Solomon Wisenberg is a former federal prosecutor whose cases include the Whitewater investigation.  Chip Babcock is an attorney who specialized in First Amendment cases.  And Bob Kohn is an attorney and the author of “Journalistic Fraud: How The New York Times Distorts the News”.

Thank you to all of you for coming on the program, appreciate it.

UNIDENTIFIED MALE:  Sure...

(CROSSTALK)

ABRAMS:  All right.  Mr. Wisenberg, let me start with you.  I mean does it not seem to you that basically what‘s happening here is the government is saying, well, you know what, we can‘t find out really who did this, so the only way we can somehow solve this is to drag these journalists in and try and essentially create new law.

SOLOMON WISENBERG, FORMER FEDERAL PROSECUTOR:  No, I think it‘s a case of the journalist taking an Nixonian opinion saying we‘re above the law, just like President Nixon said I‘m the president, so I don‘t have to obey a court order.  The journalists are saying we‘re the media, so we don‘t have to obey a court order.  Let‘s get this straight.

These are judicial court orders that these journalists are violating.  Now if they want to go for jail for that to protect their sources, I think that‘s great and I think that‘s honorable, but they‘re no different than anybody else.  The law is quite clear.  Branzburg, as you‘re aware, is quite clear that they do not have a constitutional right to withhold confidential sources when there is a federal criminal or any kind of criminal investigation going on.  And don‘t forget these are not minor cases.  You made them seem like they are minor cases.  These are—this is a serious criminal investigation...

ABRAMS:  Every criminal investigation is serious.  All right.  Every criminal investigation is serious.  But you are not going to possibly—see, my point is if we were talking about murder investigations and if journalists were saying you know what, I‘m not going to help solve this murder, I‘d be with you.  The bottom line is when you are talking about leak investigations, you are talking about the very essence of what they are doing.  So, if you are going to investigate the leaks by calling in a journalist, there will be no one who can leak even information that will help everyone in the public.  It just won‘t happen.

WISENBERG:  Well, you‘re characterizing it as a leak investigation, but in the case of the Plame affair the very leak was a very serious violation...

ABRAMS:  But not by the journalist.  It is not the journalist who‘s violating the law.

WISENBERG:  But what makes them able like—unlike any other citizen

·         a grand jury is entitled to every man and every woman‘s evidence. 

What...

ABRAMS:  No, they don‘t.  They can‘t make a husband testify against a wife.  They can‘t make a priest testify against a—there are a lot of exceptions.

WISENBERG:  Yes, but those are either statutorily or common law based.

ABRAMS:  Yes...

WISENBERG:  The news media doesn‘t have that federally.  There is no federal statutory law...

ABRAMS:  That‘s right.  There‘s not and let me read you from number two here.  This is the Branzburg.  From the beginning of our country, the press has operated without constitutional protection for press informants and the press has flourished.  The existing constitutional rules have not been a serious obstacle to either the development or retention of confidential news sources by the press.  My concern is, Chip Babcock, that now it will be.

CHIP BABCOCK, FIRST AMENDMENT ATTORNEY:  Well, it‘s just remarkable what‘s going on because following the Branzburg decision, every single federal circuit court that decided the case said that there was a First Amendment privilege for journalists to protect their sources.  And all of a sudden—it‘s not that sudden really.  It‘s been going on for four or five years—all of a sudden our courts are saying no.  It‘s the same Supreme Court decision and following that decision, the Nixon administration, since somebody brought it up, promulgated regulations that in effect put into the code of federal regulations the Branzburg qualified privilege for journalists.  It‘s just remarkable this attack that‘s going on right now.

ABRAMS:  Bob, as someone who is often critical of many in the mainstream media, do you not see a value in the media trying to expose corruption in government?

BOB KOHN, ATTORNEY & MEDIA CRITIC:  Well, I think the question is, Dan, what is the media?  The media or journalism today is not what it was 30 years ago.  I mean 30 years ago you had the three major networks and you had newspapers and you knew what a journalist was.  Today you have talk radio, cable news, and now Internet bloggers.  Suppose we extend this privilege that you would like to have reporters to have to every Internet blog...

ABRAMS:  So you‘re saying because they are bloggers out there and because they have actually adopted some level of power, we need to restrict all the rights that the...

KOHN:  No...

ABRAMS:  ... media has because there are just too many people out there with that kind of power.

KOHN:  No, I‘m not saying we should restrict the media‘s right.  We should—let—media and individual reporters the same rights that everybody else is subject to.  And as your other guests have said, you know, it is a reporter‘s job to report the news.  But on the other hand, it is the government‘s job to enforce the law...

(CROSSTALK)

KOHN:  ... and there are laws to enforce those.

ABRAMS:  That‘s right.  There‘s no question.  And look, you know, court orders are court orders.  I‘m not suggesting that someone should go out there and say, you know, I don‘t care what a court says.

KOHN:  Well I‘m an Internet blogger and I‘m a journalist...

ABRAMS:  Right.

KOHN:  ... and suppose someone leaks something to me and I put it on the Internet...

ABRAMS:  That‘s right.

KOHN:  ... I just invoke the privilege.

ABRAMS:  You might.  Yes, you might be able to.  Absolutely...

KOHN:  Everyone is potentially an Internet blogger...

ABRAMS:  That‘s right.

KOHN:  Everyone is a journalist.

ABRAMS:  That‘s...

KOHN:  That doesn‘t work.

ABRAMS:  Well look, but the problem is you are then getting so elitist

·         you are someone who always criticizes the elite media and now you are getting elitist about who is in the media.

KOHN:  I‘m not getting elitist.  I‘m getting very Democratic about it.  Everybody is in the media right now, so you can‘t extend this privilege or else the government can‘t enforce the law.

ABRAMS:  Sorry.  Hang on a second, Cory.  The—sorry I just lost my train of thought.

(CROSSTALK)

ABRAMS:  Someone is just talking to me.  Chip...

BABCOCK:  Yes.

ABRAMS:  Go ahead, Chip.  Respond to that.  I‘m sorry...

BABCOCK:  That‘s OK.  You know, today‘s blogger used to be called way back when the lonely pamphleteer.  Every bit as much of part of the press and as a journalist as today‘s bloggers.  We just call them different things.  And this protecting confidential sources isn‘t something new.  Benjamin Franklin was called to the legislature and asked to reveal who his confidential source was for an article that he‘d written in his newspaper and he said I‘m not going to tell you and that was the end of the story.  This has been going on as long as our country has existed.

ABRAMS:  And Bob, you never answered my question, though, about uncovering government wrongdoing.  Don‘t you agree with me that as a practical matter if the government keeps going after the media when someone leaks something because they can‘t seem to figure out who leaked it because that person is committing a crime, then we‘re not going to have any exposing, any government—uncovering of government wrongdoing.

KOHN:  Again, I think you are ignoring the technology that is causing this tidal shift in the media...

ABRAMS:  But you‘re not addressing my question.

KOHN:  No, I am addressing your question because now there‘s a million potential journalists...

ABRAMS:  So what?  So there are a million potential journalists and I want somebody to leak that tape that Jim Taricani got, which showed someone bribing a government official.  I want someone...

KOHN:  Well the problem...

ABRAMS:  ... to leak that and according to you, you don‘t need that. 

You are OK...

KOHN:  No, but the government...

ABRAMS:  ... with no one leaking that.

KOHN:  When the grand jury was over, that information would eventually come out.  You are just talking about the press trying to get it out sooner than later.  OK, I don‘t think that‘s serving anyone.

ABRAMS:  But...

KOHN:  I think what you might do here if you extend the laws that you‘d like to every single journalist including Internet bloggers is really foul up the administration of justice.

ABRAMS:  But Matthew Cooper, for example, from “TIME” magazine, Mr.

Wisenberg, wrote an article exposing the leak.  That was his article.  Judith Miller didn‘t write an article about it.  Let‘s talk about Cooper for a minute.  He‘s doing exactly what you hoped journalists do, which is expose the wrongdoing.  And instead of getting kudos, the government who he‘s exposing comes down on him.

WISENBERG:  Look, what you have to remember is those regulations that your other guests talked about that were put in place after Branzburg, they‘re in place now.  And the prosecutor who is handling that case followed all those regulations and it‘s only after you are not able to get the information from anybody else that you‘re able to even go after the media.  And the fact is it‘s a federal criminal matter and all those lower courts that interpreted Branzburg...

ABRAMS:  Yes.

WISENBERG:  ... I don‘t think any of them created an exception to the Branzburg rule, the heart of the Branzburg rule, that said the grand jury is entitled to every man‘s evidence.  And Judge Sentelle asked your dad five times yesterday...

ABRAMS:  Well...

WISENBERG:  ... or five times on the day of the appeal what makes this case—what makes Cooper‘s case and Miller‘s case different than Branzburg?  And he had no answer to it.

ABRAMS:  Well...

BABCOCK:  Well, I disagree with that.  He did have an answer to it...

ABRAMS:  Yes.

BABCOCK:  ... and there is an answer it to.  And the answer is that it‘s different from Branzburg because before that case, there wasn‘t any case.  And now there is.  And now there‘s a test that the government has to meet.  And I think whether they met the test is quite a bit in dispute.

ABRAMS:  Yes, the judge didn‘t like his answer.  It wasn‘t that he wouldn‘t answer.  Let me—as we—let me just wrap this up by reading from what has become what I, you know, this is the footnote from Lewis Powell that became key in this.

The court does not hold that newsmen subpoenaed to testify before a grand jury are without constitutional rights.  The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.

But what exactly does that mean?  I think the U.S. Supreme Court will eventually determine that.  Solomon Wisenberg...

(CROSSTALK)

ABRAMS:  ... Chip Babcock, Bob Kohn, great conversation.  Thanks a lot.

BABCOCK:  Thanks, Dan.

WISENBERG:  Thanks.

ABRAMS:  And I‘ve got more to say on sort of an analogous topic in my “Closing Argument” coming up.

Yesterday I took on lawyers who said this man might have a valid defense for killing six hunters because of cultural differences.  Many of you agree with me...

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—earlier this month, buried in the international section of “The New York Times” is a story about a major threat to freedom of the press.  And while it occurred in Venezuela, the U.S. reaction suggests that maybe our own government can‘t clearly see what is happening at home.  A new law in Venezuela bans, among other things, showing psychological or physical violence, even images or graphic descriptions of violence or its consequences on the airwaves between 7:00 a.m. and 11:00 p.m.

Of course the result of this sort of overbroad law is that newscasts can‘t show, well, news.  News organizations are already blocking out photographs of street violence and riots.  That sort of censorship good for the government, bad for the people.  President Hugo Chavez and his supporters claim the law will help provide programming suitable for children and adolescents.  Of course, only allowing for child-friendly TV means there‘s nothing for adults to watch.

Various human rights groups are up in arms and a State Department spokesperson, Adam Morelli, said the U.S. was—quote—“deeply troubled” in particular by the government censoring—quote—“content it considers harmful to the public order.  Of course, the State Department is right.  I‘m just not so sure they are ready to apply that appreciation for press freedom to the United States press.

It‘s a lot easier to say they shouldn‘t be doing it.  In the past year in particular with the increased fines by the FCC for sometimes-minor infractions, 65 ABC affiliates pulled the movie “Saving Private Ryan” for fear they would be fined.  And news organizations like “The Baltimore Sun” and “Denver Post” have been excluded from government facilities or denied access because certain officials didn‘t like particular reports.

Sure sounds like our government is censoring—quote—“content it considers harmful” as well.  Of course, certain restrictions are needed to make sure our airways are monitored.  They have been in place for years, but when I see news organizations punished for good, hard-nosed investigative reporting and broadcasters refusing to show important movies that reflect the sometimes uglier sides of life for fear of hefty fines, well then I‘m not so sure our government understands the lessons it‘s trying to teach.

“Your Rebuttal” is coming up.  And Demi Moore chose to name her daughter Scout.  Weird, maybe, nothing like what one father wanted to do.  Talk about setting your child up for a lifetime of trouble.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, after our last debate on the future of attorney Mark Geragos, one of you criticizes one of my guests for well, criticizing.  Your e-mails are coming up.

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night we told you a man from Laos, Chai Vang, shot eight hunters in Wisconsin, killing six of them, now might use a cultural defense.  That in his culture, the alleged racial slurs that he says were hurled at him may help explain why he lost it.  I said to allow this defense to succeed encourages chaos in our system.

Many of you agree including Jamie Kuhn in Wisconsin.  “Neither you nor I would move to Laos to start a new life and expect to be exempted from the laws of that country.  If a person thinks that their culture may prevent them from abiding by American laws, then perhaps they should return to their country where their culture is accepted.  In this country ignorance is not a defense.”

From Dallas, Texas, George Peaslee.  “Does this mean that if I was raised by terrorists that a terrorist act is excusable?  Please, give me a break.”

Stacy Fernandes writes, “I really think you need to learn about other cultures before judging someone else that isn‘t your race.” 

Also last night one of my guests, Geoffrey Fieger, who represented Dr.  Jack Kevorkian, was discussing the Peterson death penalty and Mark Geragos‘ performance.  We received lots of e-mails about Fieger mostly supporting him, but this one struck me from retired Probate Judge Herb Phillipson, Jr.

“Fieger has no right to criticize Geragos.  First, no lawyer criticizes another lawyer from afar unless he‘s jealous of him.  Fieger‘s high profile case was the death doctor, a man over 70, now sitting in prison because Fieger took money to defend him and did in the eyes of Michigan lawyers generally a lousy job.”

So let me get this straight Herb.  Fieger has no right to criticize Geragos from afar, but you can criticize Fieger about what a lousy job he did?

We‘re back in 60 seconds.

(COMMERCIAL BREAK)

ABRAMS:  Now to our “Legal Lite” segment, just when you thought you couldn‘t find worse names for your child than Apple, Cocoa or Rumor, a story of a man whose child may have been spared regular beatings at school thanks to a tip from his consulate.  A Moroccan-born man living in the Netherlands decided to name his baby daughter Jihad, the Arabic word for struggle or holy war that has become the Hallmark greeting of any tape or message sent by al Qaeda or other terrorist groups.

When the father applied to the Moroccan consulate in Amsterdam to get dual citizenship for his baby, officials there suggested he might want to pick another name.  Perhaps they could foresee something in her future that her father could not, to guarantee full cavity searches at nearly every airport in the world.  Well it seems Jihad‘s daddy took the advice and named her Osama instead—no actually, we don‘t know what her name was, but it‘s not Jihad.

That does it for us.  Coming up next, a special edition of “HARDBALL”, “A Soldier‘s Journey Home”, great show.  Chris Matthews goes to Walter Reed Army Medical Center where troops injured in Iraq and Afghanistan are recovering and trying to put their lives back together.  It‘s an important story to watch.

See you tomorrow.

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

END   

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