updated 1/12/2005 1:46:45 PM ET 2005-01-12T18:46:45

Guest: Bill Sullivan, Daniel Horowitz, Barry Steinhardt, William Fallon, Edward Sherman, Dennis Olgin

DAN ABRAMS, HOST:  Coming up, former Congressman Gary Condit denies under oath he had a romantic relationship with intern Chandra Levy.  But what exactly does that mean? 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  After Chandra went missing, Condit lost his seat, and the media and police put the spotlight on their—quote—

“friendship”.  Now four years later, the question did Condit get a raw deal or did he bring it on himself?

And police trying to solve a three-year-old murder case ask every man in a small Massachusetts town to give a DNA sample.  Some won‘t cooperate and even saying it is improper to ask.  Is it really that big a deal?

Plus an attorney for the first soldier to be tried for the Abu Ghraib prison scandal says the piling of naked soldiers isn‘t really too different from the kind of human pyramid cheerleaders make.  It was part of his opening statement.  Is that really an effective way to defend your much photographed client?

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  Former congressman Gary Condit denies under oath that he ever had a quote—“romantic relationship” with former Washington intern Chandra Levy.  Remember this case was all over the headlines for months as family, friends, authorities franticly searched for Chandra after she was reported missing from a Washington, D.C. apartment.

Then, over a year after she disappeared, as the investigation seemed to have come to a dead end, her body found in a local park about four miles away from her home.  But still, no suspects announced, and seemingly to this day, no breaks in the case.  Former Congressman Gary Condit‘s name constantly associated with the case.  Some of the tabloids even suggested he may have been involved even though it now seems there was no evidence to support that and many of them have settled lawsuits filed by Condit.

Nevertheless, there was a distinct impression from Levy‘s aunt and the questions Condit would not answer that he and Chandra had been more than just friends.  In a moment we discuss whether Gary Condit got a raw deal on the whole in this whole case.  But first now nearly four years after her disappearance, an exclusive deposition tapes obtained by NBC News, Gary Condit provides his side of the story.  The tapes are sections from a deposition in an $11 million defamation suit Condit has filed against well-known author Dominick Dunne over some of his reporting in the Levy case.

Katie Couric has the story.

(BEGIN VIDEOTAPE)

UNIDENTIFIED FEMALE:  Would you raise your right hand...

UNIDENTIFIED MALE:  Yes ma‘am.

UNIDENTIFIED FEMALE:  Do you swear to tell the truth, the whole truth and nothing but the truth so help you God?

UNIDENTIFIED MALE:  I do.

KATIE COURIC, CO-ANCHOR, “TODAY” SHOW (voice-over):  Former Democratic Congressman Gary Condit testifying under oath about his relationship with Chandra Levy, the intern who disappeared and was later discovered dead.  Condit denying repeatedly all those reports that he and Levy ever had an inappropriate relationship.

UNIDENTIFIED MALE:  In general terms describe your relationship with Miss Levy.

UNIDENTIFIED MALE:  We were friends.

UNIDENTIFIED MALE:  Did your relationship ever become a romantic relationship?

UNIDENTIFIED MALE:  No.

UNIDENTIFIED MALE:  When you say you were friends, did it ever become more than just friendship?

UNIDENTIFIED MALE:  No.

COURIC:  The married 56-year-old from California insisting it was never more than that.

UNIDENTIFIED MALE:  Did she ever indicate to you that she loved you?

UNIDENTIFIED MALE:  No.

UNIDENTIFIED MALE:  Did you and Chandra Levy ever discuss your marriage?

UNIDENTIFIED MALE:  No.

UNIDENTIFIED MALE:  Did you ever discuss your wife with Miss Levy?

UNIDENTIFIED MALE:  No.

COURIC:  He acknowledged the relationship with the 24-year-old was ongoing but limited before his lawyer objects to the line of questioning from Dominick Dunne‘s attorney.

UNIDENTIFIED MALE:  Did this relation continue steadily throughout the time you knew her before she disappeared?

UNIDENTIFIED MALE:  Yes.

UNIDENTIFIED MALE:  Did she ever discuss having a relationship that was more than friends at some future date?

UNIDENTIFIED MALE:  No, I object to the extent that that seeks to go into areas of sexual conduct...

COURIC:  But next month Condit will face another round of questions about any possible sexual relationship he and Levy may have had in the months leading up to her disappearance.  Speculation over the nature of Condit‘s friendship with Chandra dominated the news for months in 2001.

UNIDENTIFIED FEMALE:  Congressman Gary Condit granted an exclusive...

UNIDENTIFIED FEMALE:  Congressman Gary Condit...

UNIDENTIFIED MALE:  The missing intern...

UNIDENTIFIED MALE:  Congressman Gary Condit...

COURIC:  A period Condit recalled during the deposition.

UNIDENTIFIED MALE:  Her disappearance and the whereabouts of her was all over TV and there were news people who wanted to talk to me around the clock.  It was not comfortable because they were everywhere.

COURIC:  Many at the time said Condit was not forthcoming enough, and that he didn‘t show enough concern, fueling speculation he was somehow involved in her disappearance.  A charge he dismissed as ludicrous.

UNIDENTIFIED MALE:  I‘m not obligated to hold a news conference every five minutes to deny some stupid charge that someone‘s made.

COURIC:  Condit believes the media misrepresented his relationship with Chandra, that it wasn‘t as close as reported.  Under oath he denied ever visiting her apartment.

UNIDENTIFIED MALE:  You‘ve never seen her apartment?

UNIDENTIFIED MALE:  I just told you I didn‘t go to her apartment, so that means I didn‘t see it.

COURIC:  Testifying they met only six or seven times at his Capitol Hill office and only once at a restaurant.

UNIDENTIFIED MALE:  I was having dinner at a place near my house.  She called me.  I said I‘m having dinner.  She wanted to talk, and I said I‘ll be down at this particular place, and I was there, she showed up.

UNIDENTIFIED MALE:  Did you leave with her?

UNIDENTIFIED MALE:  We walked out together.  She took a taxi.  I walked home.

UNIDENTIFIED MALE:  What did she want to talk to you about?

UNIDENTIFIED MALE:  Her career.  She wanted to try to get into the FBI or the CIA.  She had a variety of theories that she wanted to bounce off of me, how the best way to do it.  And frankly, I know the best way to do it.

UNIDENTIFIED MALE:  What did you tell her?

UNIDENTIFIED MALE:  I told her she should take a foreign language if she wants to get into the CIA or the FBI.  There was a real absence of people who spoke foreign languages.  I mean that‘s the nut and shell of it that I told her.

UNIDENTIFIED FEMALE:  I do stuff with my graduate student committee...

COURIC:  At the time Chandra Levy disappeared, Gary Condit was working on his bid for re-election.  But he says all the speculation surrounding him affected him both personally and professionally.

UNIDENTIFIED MALE:  I had some emotional trauma during that, but I was so busy campaigning that I took little time out to deal with that, so I dealt with that more seriously after the campaign.

UNIDENTIFIED MALE:  You lost the election.  That was the first election you‘d ever lost, is that correct...

UNIDENTIFIED MALE:  Correct.

UNIDENTIFIED MALE:  ... in 30 years of public service.

UNIDENTIFIED MALE:  That‘s correct.

UNIDENTIFIED MALE:  Did you suffer any depression after losing the election?

UNIDENTIFIED MALE:  Yes.  Yes, but not based on the loss of the election.

COURIC:  What prompted Condit‘s lawsuit and his subsequent deposition were comments like these by Court TV anchor and well-known crime writer Dominick Dunne.

DOMINICK DUNNE, BEING SUED BY CONDIT:  They may not have called him a suspect, but I believe he was a suspect without being called one.

COURIC:  Dunne was infuriated Condit was running for re-election while Chandra was still missing.

DUNNE:  Chandra Levy had been forgotten, practically since 9/11.  And in his announcement there was no word about Chandra Levy.  There had never been any sort of feeling from him about her.  And I just wanted to bring up Chandra Levy again.

COURIC:  Now Gary Condit‘s fighting back with an $11 million defamation suit against Dunne.

UNIDENTIFIED MALE:  I‘ve got a guy that‘s on Court TV, who writes books, who had has legitimacy, credibility telling people, telling people on TV that Gary Condit had Middle Eastern people organized to do away with this woman.  How absurd.  How lame.  But it hurt, and it hurt me badly.  It shut me down.

(END VIDEOTAPE)

ABRAMS:  That was NBC‘s Katie Couric reporting.

The question:  Is the media and even the investigation responsible for unfairly tarring Condit or did he bring this upon himself?  “My Take”—now American Media, the company that owns the tabloids deserve to get sued for headlines about Condit.  Condit‘s goons killed pregnant and congressman and the intern.  Chandra killed in kinky sex game.  There is no evidence to support any of that nonsense, but let‘s be clear.

Gary Condit would not answer questions in that deposition you just saw about whether he had any—quote—“sexual relationship with Chandra Levy”.  That‘s not a crime, but it may be relevant in the context of some of his lawsuits.  If he‘s answering the question, did you have a romantic relationship and saying no, then refusing to answer did you have a sexual relationship or an affair, it seems to me to be sort of Clintonesque double talk.

Now his lawyer, Lin Wood, says that was a legal decision, and that Condit will answer those questions when instructed to do so by a judge.  Joining me, former assistant U.S. attorney for the District of Columbia, Bill Sullivan.  That office investigated the Chandra Levy case.  Bill was working there at the time but did not work on the case and criminal defense attorney Daniel Horowitz.

All right.  So Bill, you know, we now get a chance to sort of look back at this case.  Did Condit, do you think, get a raw deal in general here?

BILL SULLIVAN, FORMER ASSISTANT U.S. ATTORNEY:  Well I think he certainly had mishandled the case from a public relations perspective.  And I agree with your assessment of how he handled the deposition.  What is clear though is that Mr. Condit was not described as a suspect.  He was never, of course, formally charged.  And we aren‘t privy to what type of information was developed at the benefit of the U.S. Attorney‘s Office.  In fact, I understand that Mr. Condit testified before the grand jury.

We‘re not privy to what he said.  He‘s the only one who could wave that (UNINTELLIGIBLE) privilege and disclose it.  And in fact, we‘re led to believe since he was never charged or identified as a suspect, of probably providing exculpatory information in that grand jury setting which compelled the prosecutors to look away from Mr. Condit.  It‘s strange that he wouldn‘t answer the questions in the deposition more directly, Dan.  I agree with you there.  So I do think this is a public relations problem that he has.

ABRAMS:  Yes.

SULLIVAN:  But there is nothing to suggest that he was ever a suspect. 

And I question Mr. Dunne‘s statement that he was.

ABRAMS:  Yes, well look, I don‘t know the answer to whether, you know, he was a suspect or not in this case.  You know I don‘t.  I‘m certain...

SULLIVAN:  I don‘t think Dunne does either.

ABRAMS:  Well I don‘t know if he does.  But I‘m certain that the police asked Gary Condit questions.  The same way they asked every other person who probably knew Chandra Levy.  But that‘s not even the point that I‘m really interested in focusing—let me take a quick break here because when I come back I want to ask Daniel Horowitz about this.  I want to just talk generally.

Now in retrospect, knowing that it looks like Gary Condit is certainly not going to be charged with any crime, but he‘s still being evasive on the question of did he have an affair with Chandra Levy?  Does that mater?  I mean does that mean that, you know he—look, he lost office because of this.  Is that in retrospect all unfair?

And police trying to solve a three-year-old murder case in Massachusetts, ask all the men in the small community to give a DNA sample.  Some are furious about it.  Is it really that big an intrusion to ask—go in and take a little cheek swab?  It‘s not forced.  They‘re asking them.

And does the piling of Iraqi prisoners, one on top of the other, really compare to the human pyramids cheerleaders make?  The attorney for one of the soldiers in the Abu Ghraib prison scandal thinks so and is using that as part of his defense.

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, one Massachusetts town wants to test every man‘s DNA to try and solve a three-year-old murder—some residents not willing to give it up.  They‘re offended that they‘ve even been asked.

(COMMERCIAL BREAK)

(NEWS BREAK)

(BEGIN VIDEO CLIP)

REP. GARY CONDIT (D), CALIFORNIA:  I‘ve been married for 34 years, and I‘ve not been a perfect man and I‘ve made my share of mistakes.  But out of respect for my family and out of the specific request from the Levy family, I think it‘s best that I not get into those details about Chandra Levy.

(END VIDEO CLIP)

ABRAMS:  That was Gary Condit on “ABC Primetime” talking about whether he had a sexual relationship with Chandra Levy, and we‘re talking about this today because a deposition has just been made public where Gary Condit is heard saying that he did not have a romantic relationship, that they didn‘t have more than a friendship, but he wouldn‘t answer the questions, did you have—ever have sex with her?  And he wouldn‘t answer the question, did you have an affair with her.

And so the question, Daniel Horowitz, is the big picture here—is did Gary Condit, considering that he answered the questions in that way, back then, and is now sort of asking for redemption in a way, is he basically saying I‘m going to go back, I‘m going to get at the media who did this to me.  Is it—is he purely a victim here or did those sort of answers, do you think, compound the problem?

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  Dan, he is purely a victim.  Dominick Dunne was the most extreme, flamboyant, publicist of a police seeded theory that Gary Condit was guilty of this crime.  It was a code to say that Gary Condit was not guilty.  But he had an affair with Chandra, and he was not being forthright.  You know, from April until August, they destroyed Gary Condit to the degree that “The Modesto Bee” called for his resignation.  And Dominick Dunne profited from that getting ratings.

ABRAMS:  But Dominick Dunne—I mean again Dominick Dunne doesn‘t benefit from the ratings, I don‘t think, but nevertheless, I mean I understand your point.  I‘m talking more big picture here, I really am.  I‘m trying not to get into the details of this particular lawsuit, and, you know, who was right in the regards to the legal standards that are applicable here.  I want to just talk big picture here, Bill.

So let me point out another piece of sound because I think this is important in putting into context the sort of question-and-answer that Gary Condit was doing back at the time.  This was the interview that he did.  Everyone was waiting to hear from him.  He‘s demanding vindication now. 

But this is the interview again with Connie Chung back then.

(BEGIN VIDEO CLIP)

CONNIE CHUNG, “ABC NEWS PRIMETIME THURSDAY”:  I understand what you‘re saying regarding being specific about the relationship.  However, don‘t you realize that part of the reason why you‘re in this situation that you‘re in is because that there have been ambiguous or evasive answers to specific questions?

CONDIT:  Well, there have been no evasive answers to specific questions by me.  I have...

CHUNG:  Right now there is, sir.

CONDIT:  No, there have not been.  I have talked to the people who are responsible for finding Chandra Levy.  I‘ve been very specific.

(END VIDEO CLIP)

ABRAMS:  I mean look, Gary Condit, Bill Sullivan, doesn‘t deserve to have been accused of a crime he didn‘t commit.  But when you go—I think he should have just come forward at the beginning and said, you know if he had any sort of sexual relationship with her, I did or I didn‘t, but continuing the sort of like refusal to answer certain questions, it makes people wonder about you.

SULLIVAN:  I agree, Dan, and that‘s what I referred to earlier when I said there has been a public relations failure here.  The type of answers that everyone seizes upon that are not direct responses to specific questions, obviously, and to formulate in the mind of the listener suspicion, doubt, concern, et cetera.  I agree with that.  But what we don‘t know is what transpired before the U.S. Attorney‘s Office because in that instance he has been cleared.

And that is basically the rule of the day.  He‘s making representations to the public that he may not have made privately.  I don‘t know what he made privately.  All we know and all that seems plain is that he is eliminated, was never a suspect, and was not charged or should he be associated with this heinous crime.

ABRAMS:  And I should say that public relations failure has probably changed now that he‘s got Lin Wood representing him.  Let me play a piece of sound from you from the “Today” show.  This is Chandra Levy‘s aunt and this is 2001, August 1, Chandra Levy‘s aunt, and this is her talking about, based on conversations she had with Chandra about her relationship with Gary Condit.

(BEGIN VIDEO CLIP)

LINDA ZAMSKY, CHANDRA LEVY‘S AUNT:  They were planning things.  They were planning to spend, you know, the next five years together in a kind of secret relationship, keep it quiet.  She wasn‘t the kind of girl that would make this up.  She‘s young, beautiful.  She didn‘t have to wait five years for him or anybody else.

(END VIDEO CLIP)

ABRAMS:  You know, this is someone, Daniel, she was very close with and as a result then, is it really sort of—quote—“the media” in general‘s fault that there were questions being asked about this relationship, considering that one of Chandra Levy‘s close relatives is saying, you know, sure sounds like there was.

HOROWITZ:  Dan, the problem is I don‘t care and no one should care whether or not Gary Condit had an affair with Chandra Levy.  The sick monster who took her life was probably watching that show, laughing as we followed a false trail.  And you know, Dan, the police put that false trail out there.  They‘re the ones who leaked.

ABRAMS:  How did they do it?

(CROSSTALK)

ABRAMS:  See I got to tell you, I remember covering this case at the time and never believing that Condit likely had anything to do with this.  I mean just—it was just my sense.  I had no idea.  But it was always my sense from the beginning based on what I was hearing.

(CROSSTALK)

HOROWITZ:  Dan, most people were getting the leaks.  Remember Chandra Levy‘s parents were saying Gary Condit is not being forthcoming.  We might file a lawsuit against him.  The police were saying he‘s not a suspect, but he‘s not being forthcoming.  And then all the affairs came out.  The flight attendant, Chandra, so we start to see he‘s not a suspect, but of course he‘s a suspect.

And they‘re focusing media on him.  It is a deliberate police tactic.  When the person‘s guilty, like perhaps Scott Peterson, it works one way, but when somebody‘s completely innocent, it takes the focus off the real killer.  And so it‘s really a media lynching orchestrated by law enforcement.

ABRAMS:  We shall see.  I mean because the judge is going to have to rule on exactly what questions Gary Condit will have to answer, if he‘ll, you know, have to answer the question did you have a sexual relationship or not?

Bill Sullivan and Daniel Horowitz, thanks a lot.  Coming up, some men in a Massachusetts town unwilling to give police a sample of their DNA.  Authorities want the samples to help them investigate a three-year-old unsolved murder, but some residents say it‘s too much of an intrusion.  Is it really that big of a deal to be asked?

And an attorney for one of the men charged in the Abu Ghraib scandal says piling naked prisoners on top of each other really isn‘t that different from cheerleaders forming a human pyramid.  Is that really an effective defense?

(COMMERCIAL BREAK)

ABRAMS:  It‘s a last-ditch effort.  Police in a sleepy Cape Cod town of Truro, Massachusetts are asking all the men of the town to give DNA samples.  They‘re trying to solve the murder of fashion writer Christa Worthington, January 6, 2002.  She was found stabbed to death on the kitchen floor of her home.  The killer is still unknown.  Investigators hope the DNA testing will identify the man who had sex with Worthington in the hours before her murder.  He may be the killer or at may be able to help them find the real killer.

Now the ACLU of Massachusetts is getting involved, sending a letter to the local police department there, and the Cape and Islands District Attorney‘s Office saying—quote—“the mass collection of DNA samples by the police is a serious intrusion on personal privacy that is proven to be both ineffective and wasteful.”

“My Take”—I understand the concerns of some of the men who say, you know, they want to say no to getting swabbed.  Fine, say no.  But the bottom line is no one‘s being forced to do anything.  And in a community as small as Truro, this is close—as close as you‘re going to find to being a targeted investigation, so I don‘t know what the big deal is.

Joining me now, Barry Steinhardt, director of the ACLU‘s Technology and Liberty Program.  Be joined in a minute by Bill Fallon as well.

All right, so Barry, what‘s the problem?  Voluntary here, right?

BARRY STEINHARDT, ACLU TECHNOLOGY & LIBERTY PROGRAM:  Not voluntary at all.  When you have a police officer come up to you and say that he wants to take a DNA sample and as police officers and (UNINTELLIGIBLE) always do, then says well it‘s voluntary, but if you don‘t do it, you‘re immediately a suspect.  You know, when the heavy arm of the law comes down on you that way, this isn‘t voluntary, and the men who have been approached, who‘ve refused know perfectly well what the consequences will be if they refuse.

(CROSSTALK)

STEINHARDT:  ... have their rights vindicated.

ABRAMS:  But the police are not saying if you don‘t do this, you‘re automatically a suspect.  That is your interpretation, right?

STEINHARDT:  No, the police are saying that, and that is typically what police say in these circumstances...

ABRAMS:  You‘re saying generally the police give you that feeling.  You don‘t know that the police in this case are saying you give us a DNA sample, if you don‘t, you‘re a suspect.

STEINHARDT:  Police have said publicly that anyone who does not give a sample is a suspect.  That is what spokespeople for the police department have said.

ABRAMS:  And so therefore it is effectively, you‘re saying, forced because if they don‘t, they‘re going to be considered a suspect.  Why shouldn‘t they be though?  I mean why shouldn‘t, if this is such a small local community, all they‘re doing is asking people to give a little swab from their cheek or something.  And they‘re not—they‘ve said they‘re going to throw it out.  They‘re not going to keep a database.  I mean again, why is that such a big deal?

STEINHARDT:  Well first of all, you know, Dan, that DNA is very powerful stuff.  It not only be used to identify you, but it also harbors all of your innermost secrets whether it‘s health matters or behavioral matters.  It‘s very powerful stuff.  Now I know that spokespeople from the police department have said that they‘re going to destroy these samples after they‘re done with them.  If they do that, to my knowledge that‘s the first time any American jurisdiction that has done this will have destroyed the samples.

We at a minimum want them to create some sort of enforceable binding agreement that they‘re going to do this.  Not simply answer a question from “The New York Times” or “The Boston Globe”.  Because I‘ve got to tell you, there‘s lots of jurisdictions that still have these little databases including right here in New York from people that have been forced...

ABRAMS:  Well...

STEINHARDT:  ... to give these samples so-called voluntarily.

ABRAMS:  Yes.  That‘s just assuming the—you know, Bill Fallon‘s really upset about this because he‘s on the other side in this.  He‘s from Massachusetts.  He‘s going to join us in a minute.  Barry Steinhardt is going to stay with us.  Have more in a minute.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, police in one small town asking every man to take a DNA test hoping it will help them solve a two-year-old murder.  Some of the men saying why.  Coming up, first the headlines.

(NEWS BREAK)

ABRAMS:  We‘re back.  We‘re talking about is it an invasion of privacy, can a town‘s police department ask all the town‘s men to provide DNA samples to help them solve a 3-year-old murder mystery?  Well, you know, that‘s what they‘re doing in Truro, Massachusetts, the police department at least.  The ACLU of Massachusetts not happy about it, calling it an infringement of privacy.

Back with me now, Barry Steinhardt, director of ACLU‘s Technology and Liberty Program and Bill Fallon, former Essex County Massachusetts district attorney.  All right, Bill, so you heard what Barry Steinhardt has to say, saying you know look, it is effectively forced.  These people are effectively being treated like suspects if they don‘t give the DNA.

WILLIAM FALLON, FORMER ESSEX COUNTY MA DISTRICT ATTORNEY:  Hey, Dan, if a little spittle can help a little, I‘m all for this.  I mean one of the things we did about five or six years ago in Lawrence when there was in our jurisdiction, there was a woman who was incapacitated, was raped in a nursing home.  We got 22 people to give their DNA, and what we‘re saying is can you help us out.  And guess what they did, maybe one of them didn‘t.  It ended up being one or two didn‘t, and we were able to get an indictment and a plea of guilty.

This might not be that specific.  I‘m sure the ACLU would have had a problem with us asking those hospital workers.  I didn‘t.  Is this going to lead to a conclusion that we‘re going to know who did it, but guess what, I‘d like to live on a street in Truro where I thought if my wife and I were living, that everybody on that street maybe isn‘t going to match the murder suspect here and that‘s all we‘re looking for.  It is a dead end, why not have it?

You know, the Fallon focus is that everybody when born should have to be giving their DNA.  And I‘d feel much safer at the airport with the DNA given.  I‘d be much safer in an investigation.  Michael O‘Keefe will destroy this if he says he‘ll destroy it.  And I‘m thinking isn‘t it foolish not to ask.  If they can get 1,000 people who say I have no problem with it, I‘ll give up this, no one‘s forcing me to do it, I don‘t think the ACLU should have a problem with trying to help who murdered this poor victim.

ABRAMS:  You know, Barry, and I tend to agree.  Go ahead.  You can respond.

STEINHARDT:  Well certainly a lot of people do have a problem with it.  They‘ve been calling our office in Massachusetts.  But you know, let‘s go back and look at that Lawrence situation for a moment.  That was 20, 25 people.  This is the entire male population of the town.  That‘s where we‘re headed.  We‘re headed exactly as your guest just said...

ABRAMS:  Would you have had a problem with what he suggested in the hospital?

STEINHARDT:  Well, let me just point out that there has not been a single jurisdiction in this country where they‘ve done this kind of mass DNA round up.

ABRAMS:  In Europe they‘ve done it...

FALLON:  In Europe they do it all the time there...

(CROSSTALK)

ABRAMS:  And they‘ve had some success.

STEINHARDT:  Dan, let me finish.  This is factual and you‘ll probably be interested.  There is not a single jurisdiction in this country where there‘s been a mass round up of DNA on this scale that has ever produced a suspect.  The fact is that this is not an efficient form of law enforcement.  This is going to cost a lot of money, 80 or $90,000 to do—to test this entire town‘s male population.

It doesn‘t make any law enforcement sense.  This is a horrible crime.  It should be solved.  But it‘s not going to be solved this way.  The perpetrator of this crime is not going to step forward.  They don‘t even know if he‘s still in the town.

FALLON:  Barry, and I agree with you.  That is one of the issues here, but if we have one out of 18 solved in the United States.  We had the rape and murder of a little girl solved in Germany.  I agree there are only 22 people in a nursing home.  All I‘m suggesting is if you‘re at a dead end, why not try this?  What have you got to lose if enough people come forward, you never even know.  Somebody might be even foolish enough—in one case we did somebody did give their DNA sample.

But if we could get the 1,800 residents down to 7 or 10 or 100, who knows what it would lead to.  It might not even be from somebody from there.  But if it was my family and I knew that victim, I‘d say I want the D.A. to make a request as they do all the time from everybody.

ABRAMS:  Speaking of the D.A., let me read the statement from Michael O‘Keefe, the Massachusetts Cape and Islands D.A.

The District Attorney‘s Office, Massachusetts State Police, detectives and local police are conducting a homicide investigation regarding the death of Christa Worthington.  The collection of DNA samples is part of that investigation as it has been for three years.  At this time police are asking for a voluntary DNA sample.  This and other methodologies will continue.

Go ahead, Barry.  You can respond.

STEINHARDT:  Well to begin with, of course, it‘s not really voluntary in these circumstances.  It is coerced.  People know when they‘re confronted with a police officer making this request what the real facts are.  But secondly, where we‘re headed is exactly what we‘ve just heard, which is why not DNA test everybody, is the proposal that‘s being made out there.  We are way down the slippery slope here where we‘ve gone from DNA testing only those people who are convicted of certain violent felonies to now saying essentially everybody‘s a suspect.

We‘re going to DNA test everybody.  I‘m still waiting for that first jurisdiction to destroy the samples.

(CROSSTALK)

STEINHARDT:  I hope they do in this case, but it hasn‘t happened yet.

FALLON:  Could I just say, Barry, I know it sounds so wild and radical to say everybody DNA testing.  I work with saving children, trying to stop rape and abuse and abduction of children.  And I‘d suggest to you even though I might be liberal on some issues with some—as some people conservative on others.  I‘m just suggesting to you that if on birth each kid was DNA tested...

ABRAMS:  Right.  I don‘t want to debate...

FALLON:  But it‘s a similar issue, Dan.  We want to say if you‘re balancing how can you get somebody who‘s committed an atrocious crime, this is the way to do it.

ABRAMS:  Yes.  But, you know, the issue of sort of broad DNA testing everyone at birth, you know, I think and I know Barry would say, this is the road we‘re heading down.  But you know, Barry, how do you draw the line?  Basically you‘re saying you don‘t want to sort of judge whether Bill‘s case in the hospital of the 20-something people could they ask, you know, you‘re saying well you know who knows the facts of that case, et cetera versus here in a small community.  What if the community was 200 people, for example?  What if the community was 80 people?  Would that that change it?

STEINHARDT:  Well, you know, in this case the community is several hundred males.  But beyond that, this crime is a horrible crime, but it was committed three years ago.  There is no reason to believe that this is going to be successful this kind of mass round-up...

ABRAMS:  But you can‘t start getting into whether it‘s good—I mean whether it‘s good law enforcement or not good law enforcement to me is not something that the ACLU should be deciding.  The question is whether you think it‘s simply unconstitutional to make this sort of request.

STEINHARDT:  No, no, I think you‘re wrong about that, Dan.  You know, part of the problem is we except in this country all sorts of intrusions on our rights because the police, the government makes the assertion that it‘s going to make us safer.  What I‘m saying is prove it.  Prove it first it‘s going to make...

ABRAMS:  Fine...

FALLON:  Barry...

(CROSSTALK)

ABRAMS:  No, wait, wait...

(CROSSTALK)

ABRAMS:  ... hang on Bill.  Hang on Bill.

(CROSSTALK)

STEINHARDT:  ... give up our rights actually demonstrate this...

ABRAMS:  But Bill, you‘re not giving them an opportunity to do it.  I mean you keep saying there hasn‘t been a single jurisdiction that‘s done it successfully, well then let them try it.

(CROSSTALK)

STEINHARDT:  It‘s not as if we‘ve stopped jurisdictions from doing this.  They‘ve done this at any number of jurisdictions and it doesn‘t work.

FALLON:  You know what?  I guess what I‘m looking at Barry and Dan, it worked in Lawrence.  And all I‘m going to suggest is those 22 people—we didn‘t know if a worker had actually raped that woman who couldn‘t talk and speak and actually was a geriatric patient and near death.  But what we said is let‘s look at someone.  We know these people around her.  Guess what?  If all 22 people didn‘t match, we could have been any—a visitor...

ABRAMS:  All right.

FALLON:  ... somebody who came in through a window.  Let‘s look at victim‘s rights and balance them with defendants and suspects...

ABRAMS:  I got to wrap it up.  Interesting conversation.  I get the feeling it‘s one we‘re going to be having as Barry fears many times in the future.  Barry Steinhardt and Bill Fallon, thanks a lot.

FALLON:  Thank you.

ABRAMS:  Coming up, some parents put leashes on their children so they don‘t lose them.  So is it such a stretch to believe the soldiers involved in the Abu Ghraib prison scandal were doing the same thing in these photos?  I swear that‘s part of the defense one attorney is using.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  Some tough testimony today in the court-martial of Specialist Charles Graner, the first soldier in the Abu Ghraib prison abuse scandal to actually go to trial.  Videotaped testimony from Iraq.  A Syrian inmate who did time on Graner‘s cellblock called him the prison‘s primary torturer and said Graner enjoyed his work.

Quote—“He laughed.  He was whistling.  He was singing.”  Graner‘s defense attorney, Guy Womack, insists his client isn‘t guilty of the charges that include assault and abuse.

(BEGIN VIDEO CLIP)

GUY WOMACK, GRANER‘S ATTORNEY:  Specialist Graner was following orders.  And that is a defense in two different ways.  First of all, if he‘s following lawful orders, it‘s an absolute defense to all the charges on that charge sheet.  It‘s also a defense if he was following unlawful orders, but did not know that they were unlawful.

(END VIDEO CLIP)

ABRAMS:  And in court, Womack tried to explain away evidence like this human pyramid of inmates allegedly formed by Graner—there he is.  Asking the military court don‘t cheerleaders form pyramids all over the country.  As for this picture, showing Graner‘s girlfriend, I guess, Lynndie England dragging a prisoner by a leash.  Womack said you‘ve probably seen at airports or shopping malls, you know, seen children on tethers.  They‘re not being abused.

“My Take”—first Graner‘s primary defense, that he was only following orders.  Not a defense unless he did not know or could not reasonably been expected to know that his act was unlawful.  In this type of case as for Womack‘s case that cheerleaders form pyramids, come on.  Cheerleaders in this country hooded, stripped, then made to lie on top of each other—some wild high school.

Bottom line, Graner‘s in big trouble.  You can‘t blame his lawyer, though, for that.  My guests, Dennis Olgin is a retired Army JAG who‘s prosecuted hundreds of cases and Edward Sherman is a former Army JAG and Tulane University law professor.  Gentlemen, thanks very much, appreciate it.

All right, so Mr. Sherman, you know, what do you make of this defense?  I mean let‘s—we‘ll deal with the following orders in a moment, but using as examples, well, tethering isn‘t such a big deal.  Well, the pyramids aren‘t such a big deal.  I mean shouldn‘t he just accept the fact that it is a big deal and then move on from there?

EDWARD SHERMAN, FORMER ARMY JAG:  Well, I think this is an attempt by

the defense counsel to take the edge off of what was done and to say it‘s

really not torture.  It might have been silly and stupid, but it‘s the kind

·         it‘s akin to what goes on at football games.  I think it‘s a hard analogy to make.

But it does play into the fact that many officials, both military and civilian had suggested that one way to get information was to humiliate the prisoners.  That we had some official statements saying that you could use techniques like isolation and subjecting prisoners to noise and intensities of temperatures and even that pain...

ABRAMS:  Yes.

SHERMAN:  ... could be inflicted, so long as it didn‘t interfere with serious bodily function.  So it‘s an attempt, I think, by the defense to play into this and say see this was not as serious as torture.

ABRAMS:  Yes, maybe.  But I don‘t think he‘s being charged, Mr. Olgin, with torture, right?

UNIDENTIFIED MALE:  No, that‘s true.

DENNIS OLGIN, FORMER ARMY JAG:  I think he‘s making a big mistake, Dan.  This is not going to play well in front of a military jury to try to compare piling of prisoners with cheerleaders and tethering of prisoners with somebody at the mall, tethering their child.  And I think it is going to backfire big time.

ABRAMS:  And explain to us how it‘s different in terms of a—you say in front of a military jury.  Lay it out for us how it‘s different than a regular jury.

OLGIN:  Sure.  We have a number of officers and a number of enlisted people.  They‘ve all been to combat.  They‘re all senior to Mr. Graner or Sergeant Graner.  And they‘ve been in the military a long time.  They know what the military teaches as far as the laws of war and prisoner training and torture.  And the Army does not permit torture.  I myself am a graduate of the Interrogation School of the United States Army...

ABRAMS:  Yes.

OLGIN:  ... and the Army doesn‘t permit what Mr. Womack is saying is permissible.  It‘s that simple.

ABRAMS:  And here‘s what Charles Graner had to say on Friday when the trial began.

(BEGIN VIDEO CLIP)

SPEC. CHARLES GRANER, CHARGED WITH ABU GHRAIB ABUSE:  There‘s been ups and downs, but the ups have so outweighed the downs, that, you know.  Like I said, whatever happens is going to happen.  I still feel it is going to be, you know on the positive side.  And I‘m going to have a smile on my face.

(END VIDEO CLIP)

ABRAMS:  Mr. Sherman, you would agree that that‘s—it‘s a long shot for Mr. Graner, right?  I mean he‘s got a very, very tough case here.

SHERMAN:  I think that‘s right.  And this is a defense tactic to try

to take the edge off of what was done.  The point is, though, that lots of

forms of what many people would call torture were accepted at various times

by officials since the invasion in Afghanistan.

ABRAMS:  Right, but that‘s not a defense, right.  I mean you can‘t just say things were accepted, and therefore I could, you know, make people masturbate and put prisoners in piles and do other things, right?

SHERMAN:  No, but the defense really is that there was a policy that allowed these kinds of forms of humiliation as valid techniques for getting information.

ABRAMS:  Right, put the military on trial you mean.

SHERMAN:  That‘s exactly right...

ABRAMS:  Right.

SHERMAN:  ... and there‘s enough of it going around...

ABRAMS:  Yes.

SHERMAN:  ... General Sanchez was found to change the interrogation rules three times in 30 days.  And well, the Army panel said that sowed confusion among the interrogators...

ABRAMS:  Yes, maybe...

(CROSSTALK)

ABRAMS:  The bottom line is that when you find—I mean it just depends on how, you know, how widespread you find this.  If every, you know, division is doing the same thing, then you can say well obviously it‘s coming from the top.  You just have a few people who are doing some awful things, it‘s a little bit of a harder defense.  And again, what we were talking about wasn‘t putting of the military, but again, these notions of sort of comparing it to everyday tethering of your child.  You know, you can spank your child, you can‘t spank an individual.  Any way Dennis Olgin...

SHERMAN:  I think most people will be able to make that distinction.

ABRAMS:  All right.  Well we shall see.  Dennis Olgin and Edward Sherman, thank you so much for coming on the program.

SHERMAN:  Thanks.

ABRAMS:  Appreciate it.  Lots of you writing in about my interview with CBS President Les Moonves and the men who investigated the CBS story, but one of you just says that the only reason we‘re doing this is because we want to—I don‘t know.  You‘re criticizing us...

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a lawyer defending a major newspaper in a libel case seems to be saying that we should never expect the media to get it right 100 percent of the time.  What kind of defense is that?  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why saying—quote—“nobody ever gets it 100 percent right” isn‘t good enough when you are a lawyer representing the media.  In the wake of the CBS disaster with the National Guard documents, I don‘t want lawyers defending media clients, saying—quote—“there is always some details that are wrong.”  That‘s exactly what one M. Robert Dutchman (ph) was quoted saying in “The New York Times” about his client the “Boston Herald” in the context of a libel case filed against them by a judge.  No, there aren‘t always details wrong.  Most of us most of the time do get it 100 percent right.  If that lawyer‘s goal was to further undermine media credibility then he was on the right track.  Now I‘ve made mistakes, but I would never let my lawyer just argue that mistakes don‘t matter because they do.

Anytime we get any fact wrong around here it‘s serious business.  Look, the legal standards in court are designed to protect the media from being sued for innocent mistakes.  When it comes to a public figure the person has to show essentially that the media should have known better.  Fine, but what CBS seems to understand now is that credibility is everything.  And lawyers who are speaking for the media should know that as well as anyone.

Up next, inmates in an Oklahoma jail were getting more than just bread and butter when the jail trusted an inmate to make its grocery list.  Today‘s story that made us say “OH PLEAs!” coming in 60 seconds.

(COMMERCIAL BREAK)

ABRAMS:  We are back.  I have had my say, now it‘s time for “Your Rebuttal”.  Last night Scott Peterson‘s girlfriend Amber Frey on the program with her lawyer Gloria Allred, talked about Amber‘s new book and her involvement in the Peterson case, future plans.  Plenty of e-mails about Amber, shocker.

Kevin in New York City, “If Amber simply wanted justice, she would have told her story without the assistance of a loud mouthed brassy attorney and would have gone back to her life.  It seems like Amber was motivated by something other than clearing her name.”

From Sarasota, Florida, Suzanne Ray.  “Amber Frey should hold her head up high and not be ashamed of one single, solitary thing.  She‘s an example of what every law abiding citizen should do when the situation calls for it.  Her book should be a lesson for young girls who are taken in by fast talking cheaters.”

And Marie from Lathrop, California.  “Unlike other interviewers, you did not speak to her with a pompous attitude.  It‘s easy to see why you are the most respected interviewer on TV.”  Thanks, Marie.

Also last night, four senior CBS employees fired after an independent report over that story about President Bush‘s National Guard service.  I spoke with CBS President Les Moonves and the men who wrote the report said there was no basis to believe the story aired was based on any political bias.  I said I would defer to them.  They did the interviews, et cetera.

Howard Hyman, “And the liberal media wonders why the USA is now a nation of blue states versus red states.  Nobody cares about this CBS story except the media itself.”

Yes, right Howard.  If we had not covered the story of CBS being criticized by the panel, you would have been the first to complain, see, it‘s a liberal media cover-up.  Give me a break.

Your e-mails abramsreport—one word -- @msnbc.com.  We go through them at the end of the show.

“OH PLEAs!” or as inmates in the Durant Oklahoma jail may have said, oh please what happened to this chicken cordon bleu?  Not the typical complaint about jailhouse food, but then not every jail serves chicken breasts and prime cut beef.  And neither did the Bryan County jail, that is until a trusted inmate, who has since been released, was assigned the task of ordering the next month‘s food for his buddies behind bars.

When the jail got the bill, they realized the food budget had gone from 5,000 to 13,000 for the month.  Party is over.  While the jail‘s administrator said there won‘t be any repercussions against the trustee who ordered the food, it seems the prisoners are feeling a little neglected now that the gourmet chow is off the menu and the chicken patties are back.

That does it for us tonight.  Coming up next, “HARDBALL” with Chris Matthews.  Thanks for watching.  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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