updated 1/27/2005 1:39:39 PM ET 2005-01-27T18:39:39

Guest: William Fallon, Nancy Hollander, David Houston, Kristi Schmitt, Paula Brantner, Mercedes Colwin

DAN ABRAMS, HOST:  Coming up, the only alleged victim in the Paul Shanley case says the ex-priest molested him in a number of church rooms, but will his repressed memories mean this accused pedophile could go free?  We‘re going to play some of today‘s graphic testimony.

(COMMERCIAL BREAK)

ABRAMS:  Dramatic testimony inside a Massachusetts courtroom where a man, who says he was abused by a former priest, points out the man he says abused him.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  And the only alleged victim testifies in the church sex abuse trial against former priest Paul Shanley.  His graphic descriptions of abuse sound believable, but his memories only came back after the scandal hit the paper. 

Plus, since when is it your employer‘s business whether you smoke in your own home?  One company fired four employees who refused to take a test to determine if they were smokers.  They say they‘re doing it for the employees‘ health.  But what‘s next?  No one who eats fast food or drinks beer? 

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket:  Powerful testimony from Paul Shanley‘s accuser today, telling jurors the defrocked Catholic priest molested him for years, starting when he was just 6 years old.  The man now 27 says Shanley molested him in the bathroom, the rectory, the confessional and in the church pews while he was supposed to be in class.  The priest reportedly telling the accuser he got to do special duties because he was a good kid.  I want to warn you, this is graphic.  Here‘s what the accuser says happened inside the confessional. 

(BEGIN VIDEO CLIP)

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  Just talk about all the sins a second grader could have. 

UNIDENTIFIED FEMALE:  Did anything happen in that room? 

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  Yes. 

UNIDENTIFIED FEMALE:  Can you tell us what happened? 

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  He used to undress me and he himself would get undressed himself and stand in front of the mirror and put his arm around me. 

UNIDENTIFIED FEMALE:  Did anything else happen? 

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  Yes. 

UNIDENTIFIED FEMALE:  What else happened? 

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  He used to stick his finger in me. 

(BEGIN VIDEO CLIP)

ABRAMS:  The accuser also said Shanley told him that no one would believe him if he said anything.  Here‘s the problem, Shanley‘s accuser didn‘t remember any of this until 2002 when his fiancee told him of a newspaper article about other abuse allegations against the priest. 

“My Take”—this testimony was powerful, persuasive, specific, but repressed memory remains a potential problem for the prosecution here.  Joining me now criminal defense attorney Nancy Hollander, who defended a priest in a similar case and former Essex County, Massachusetts‘ prosecutor Bill Fallon.  He was chief of the Sexual Assault and Child Abuse Unit there. 

All right, so Bill, you got to watch some of the testimony today. 

Better than expected? 

WILLIAM FALLON, FORMER ESSEX COUNTY MA PROSECUTOR:  It was exactly what I expected because I know the prosecutor, and I think that the only hope is that the jury is going to be so moved by, if you will, the specificity, but also what the kid, now a young man, seems to have gone through.  We all know the weakness of the case, whether you call it repressed memory, delayed acknowledgement of what happened.  In fact, I‘m so fearful that what we did is have a repressed memory, if my cynical side for purposes of civil suit that it really hurts the criminal case, only because I think that kids that I‘ve known or adults that I‘ve heard of and met, they don‘t forget everything.  They have these glimpses of it...

ABRAMS:  Yes.

FALLON:  ... but they put it out of their mind and I only wish you could acknowledge that on the stand.

ABRAMS:  Here‘s another piece of sound from that man‘s testimony today.

(BEGIN VIDEO CLIP)

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  I just started remembering being taken out of class but that was it. 

UNIDENTIFIED FEMALE:  OK.  When you say you remember being taken out of class, by someone? 

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  Yes.

UNIDENTIFIED FEMALE:  Who?

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  Shanley. 

UNIDENTIFIED FEMALE:  And do you remember—when you say a class, what class are you talking about? 

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  CCD class.

(END VIDEO CLIP)

ABRAMS:  All right, so Ms. Hollander, you still have the problem here with this repressed memory, but this young man seems pretty certain of his testimony. 

NANCY HOLLANDER, CRIMINAL DEFENSE ATTORNEY:  Well, he‘s certain today, but repressed memory is a big problem.  I don‘t know of any scientific evidence that would support someone forgetting completely a traumatic, a whole series of traumatic events like this.  Memory isn‘t something that comes in as a tape recorder and then comes out.  It‘s influenced by things that happen in our lives.  And there‘s simply no evidence that people forget something like this.  This is a very suspicious situation where someone remembers right after seeing a newspaper article but never had a single memory before that. 

ABRAMS:  That would mean, right, that the jurors would have to believe that this is just an outright lie, right? 

HOLLANDER:  Well, you know, it‘s hard to say whether it‘s an outright lie or whether he now believes it.  Of course, I don‘t know, none of us know whether anything did or did not happen.  But he may have convinced himself that something happened.

ABRAMS:  Yes...

FALLON:  Dan...

HOLLANDER:  Who knows?

FALLON:  ... I think one thing that‘s really important having reviewed hundreds of priest files and having prosecuted one of these priests for rape, who‘s now at Walpole in Massachusetts in our court system, one of these very same cases, I call it a cohort of Shanley.  I think—I got hundreds of phone calls from people who would say and at least acknowledge, no matter what the psychiatrist say and what the attorneys say, that when they read about these things, this brought back in their own minds, things that had happened, things that they had put out of their minds, either voluntarily or not.  So we know as a phenomenon, as hankie and as hokey as it sounds and maybe as untrustworthy as it sounds, I had calls from people 60 and 70 years ago saying I want you to know...

ABRAMS:  Would you be worried, Bill, about the jurors though?  About the jurors saying gosh, I‘m going to convict someone beyond a reasonable doubt based on a repressed memory? 

FALLON:  Dan, that‘s my whole concern here.  One thing is the prosecutor is not going to be bringing up the term—quote—“repressed memory.”  In fact, the defense attorney is not going to leave it alone.  The interesting part will be whether Lynn Rooney makes a decision to put any experts on for the prosecution‘s case in rebuttal.  Because quite frankly I think what this kid is going to say is if he is compelling enough, and I understand he was pretty compelling during the direct examination...

ABRAMS:  Yes.

FALLON:  ... I think he‘ll be pretty compelling during cross.  How much leeway is the jury going to have to say we think it happened no matter what the defense experts say and I think that‘s the problem...

ABRAMS:  Here‘s a little bit more of the testimony from today. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Did it happen one time or more than one time? 

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  More than once. 

UNIDENTIFIED FEMALE:  Do you know how old you were the first time it happened? 

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  No. 

UNIDENTIFIED FEMALE:  Do you know if it happened more than two or three times? 

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  I don‘t know. 

UNIDENTIFIED FEMALE:  Do you have any recollection of how many times it happened? 

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  I don‘t. 

(END VIDEO CLIP)

ABRAMS:  Ms. Hollander, I think he may have bolstered his own credibility by conceding that he couldn‘t remember certain things. 

HOLLANDER:  Well I don‘t know that he‘s bolstered any of his credibility and the fact that people have called or hundreds of people have called and said they have repressed memories doesn‘t make them accurate.  Something may have happened, something may not have happened. 

ABRAMS:  So you just don‘t...

(CROSSTALK)

ABRAMS:  ... you think anytime someone‘s coming in and saying I remember something happened to me, it was a repressed memory, you say didn‘t happen? 

HOLLANDER:  No, I‘m not saying that. 

ABRAMS:  Because I thought you said...

HOLLANDER:  I‘m saying one of the problems...

ABRAMS:  ... that you just don‘t buy the repressed memories...

HOLLANDER:  I don‘t buy the—that there is any science that people can completely forget something and then remember it, a traumatic event, remember it many, many years later.  But I can‘t say, and none of us can say whether this happened or didn‘t.  One of the big problems is that this case is so old...

ABRAMS:  Yes.

HOLLANDER:  ... and the reason that we have limitations on cases is to prevent that kind of problem so that the defense has a lot of trouble confronting an allegation that‘s this old. 

ABRAMS:  Yes.

FALLON:  The only thing is...

(CROSSTALK)

ABRAMS:  Hang on...

(CROSSTALK)

ABRAMS:  ... let me take a quick break here. 

(CROSSTALK)

ABRAMS:  Let me take a quick break here.  I‘ll let you both continue.  We got more of that testimony.  Some of it, again, it‘s—some of it is very graphic when he describes what happened to him.  We‘re going to play more of that coming up.

Plus, it‘s one thing when your roommate tells you can‘t smoke at home.  What about your employer?  It happened to four people in Michigan who got fired when balked at their companies demanded they take a smoke test.  Can they do that?

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  What would happen when you finished putting the pamphlets in the pews?

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  When we were done, we‘d sit towards the front and he‘d put his right arm around me, I always sat on his right, he put his right arm around me and start touching me with his left hand.

(END VIDEO CLIP)

ABRAMS:  Talking about the case of Paul Shanley—he is on trial. And that is the only evidence really against him is that young man‘s testimony.  Says it happened years and years ago. But this is the only criminal trial that Shanley is going to face. 

And Nancy Hollander, this is a strong case, is it not, for the defense. I mean this is a guy who the church settled a lot of civil lawsuits and as a practical matter, if he‘s acquitted it certainly doesn‘t mean he didn‘t do this stuff.  But as a legal matter, it‘s going to be tough for the jurors to simply say I‘m going to rely on the—you know, the old and repressed memory of this young man.

HOLLANDER:  I think it is going to be tough and I think we—the jury is going to have a very difficult time in this case.  It would be one thing if someone, you know, if you forget where you left your keys or where you met somebody.  But to come in and say that you forget something traumatic that happened over a period, as I understand it, of six years, is very hard to believe.  And it will be a very difficult job for this jury.

ABRAMS:  And he was—he sure was specific.  Let‘s play another piece of sound here.  He‘s talking about how Shanley would get him a snack and then they would play that card game war and here‘s what would happen.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Did you ever lose?

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  A lot of time.

UNIDENTIFIED FEMALE:  What would happen when you lost?

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  Every time I lost a hand, he would tell me to take off a piece of my clothes.

UNIDENTIFIED FEMALE:  Did you lose more than one hand?

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  I always lost.

UNIDENTIFIED FEMALE:  And would something happen after you took off your clothes?

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  Yes, I‘d somehow get on a winning streak and he would take his clothes off.

UNIDENTIFIED FEMALE:  After the defendant took his clothes off, did anything happen?

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  I don‘t remember.

(END VIDEO CLIP)

ABRAMS:  Bill, this is just so disgusting is the problem.  And yet, you know, you‘ve conceded that this is a tough case for them to make.  I mean there‘s no way Shanley is going to take the witness stand, right?

FALLON:  Dan, there‘s no way he‘s taking the stand.  What‘s so horrific to me is that having reviewed many of these cases of many of these priests and this whole course of conduct, you cannot believe this strip poker game, these type of games, it‘s almost like there were a text to priest who went to the—in the ‘60‘s and decided to molest kids.  There‘s a whole bunch of these priests, if you look at them, who somehow hid the molestation of kids.

But I have to say one thing.  I think it‘s really imperative here.  Many incest victims, and I consider this boy like an incest victim because of the closeness and the proximity and the trust in the priest, they do not remember what happened.  If you talk to men and women who—mostly women we have more data on—they do not remember.  They blotted it out to survive.

(CROSSTALK)

FALLON:  ... jury is going to be convinced, but let me tell you...

ABRAMS:  I‘m almost...

FALLON:  ... it is a true phenomenon.

ABRAMS:  I‘m almost out of time, Bill, but his past is not coming in, right?  I mean his writings about men and boys in relationships and all of the other civil lawsuits that were settled, not coming in, in this case, right?

FALLON:  Not coming in unless he takes the stand and you could somehow get it and you know he‘s not going to do that.  And that seems to be the tragedy because the jury is not going to know the full Shanley.

ABRAMS:  Yes and I think as a result, you know, this case may be heading for an acquittal, which really could be in its own way a travesty of justice.  But Nancy Hollander, Bill Fallon, thanks a lot.  Appreciate it.

FALLON:  Thanks Dan.

ABRAMS:  Coming up, smoking can get you kicked out of certain bars and restaurants.  Now it seems it can also put you out of a job.  Four people fired from a company that insists on a smoke-free staff, not work place, to keep its insurance costs down.  Can they do that?  We talk to the man who wrote the company policy.

And prosecutors are investigating whether Bill Cosby touched a woman inappropriately.  How does he go about defending himself?  What are, you know, what does he do to now fight back?  Is the damage already done?

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, four people leave a company because they say they were forced to take a test to prove they didn‘t smoke.  The company says they‘re just trying to keep them healthy.  What‘s next?  Stopping them from eating fast food?  First the headlines.

(NEWS BREAK)

ABRAMS:  Welcome back.  Since when can your employer dictate what you do in the privacy of your own home?  For four smokers who worked at a Michigan healthcare company quit because they were about to be fired for refusing to drop the habit.  We‘re not talking about smoking at work but at home.  The company, WEYCO, Inc. in Okemos, Michigan, established a new policy for 2005, banning smoking by all of its employees, including smoking at home on their own time. 

The company founder says he‘s tired of paying exorbitant healthcare costs because of his employees who are smokers and he wants a healthy workforce.  WEYCO told employees about the new policy over a year ago and paid for treatment programs like acupuncture and focus groups for employees who are willing to quit.

The company claims 14 of its employees have stopped smoking thanks to the policy.  But as of the new year employees were told that they had to take a Breathalyzer to make sure they weren‘t smoking anymore.  Those who refused now pounding the pavement looking for work. 

“My Take”—I don‘t get it.  Once a company starts dictating what is healthy for its employees and what is not, where does it stop?  For people who drink alcohol or fail to practice safe sex or eat too much fast food the next targets. 

Joining me now, attorney for WEYCO, David Houston who wrote the company‘s no smoking policy and Kristi Schmitt who works at WEYCO and quit smoking after the policy was announced and Paula Brantner, the program director for Workplace Fairness, says this policy goes too far.  Thank you all for coming on the program.

All right, Mr. Houston, what am I missing here?

DAVID HOUSTON, WEYCO ATTORNEY:  I think you had an excellent summary Dan.  I really appreciate the background facts and recognition of all the positive things that WEYCO has done to allow the employees an opportunity to get over their smoking habit.  What are you missing?  I think that what you‘re missing is the personal responsibility that this policy brings on employees, the - that, if you will, that little tipping point of encouragement that the employer‘s policy has given to employees like Kristi sitting next to me to help them to break a habit that I don‘t know anyone who is happy to have it. 

ABRAMS:  Look, I‘m not a smoker.  I don‘t like to be in a room when people smoke.  So, I‘m not trying to defend smoking, but the notion that an...

(CROSSTALK)

ABRAMS:  ... notion that an employer is starting to get into the business of telling people what they can and can‘t do at home, I don‘t—I just do not see how you distinguish this from other things that are dangerous.  How is it any different than telling people you can‘t drink more than three glasses of alcohol per day at home?  You can‘t have unsafe sex, et cetera? 

HOUSTON:  Dan, lawyers are in the job of drawing lines and drawing

fair lines.  And one of the first things that (UNINTELLIGIBLE) asked me

when he came to me to draft this policy was help us to draw up a fair

policy that gave employees a fair opportunity to conform their behavior and

·         that was permissible and lawful.  And you and I both know well that lawyers, judges, courts draw lines all the time every day that‘s our job.  It‘s not an easy job, but the margins, there are gray areas where legitimate, well-thinking people disagree.  But still it‘s important for us to draw lines...

ABRAMS:  Yes.

HOUSTON:  ... and this is a great debate for us to have so that we can decide where the fair lines can be drawn. 

ABRAMS:  Yes and I see—my concern is though that you picked the politically safe one.  That you wouldn‘t have done the other ones because you would have feared too much of a backlash.  And you know that there are not a lot of people out there these days who are defending smokers. 

HOUSTON:  Well Dan, maybe if you were counseling the company, maybe you would have picked another issue, like sexual orientation or something like that, because that is area that‘s protected in some jurisdictions but not in others.  But when you say picked a fair area, I would counter that by saying I think the company was laser-on targeted to the most destructive bad habit, volitional act that people take. 

ABRAMS:  Really...

HOUSTON:  Not an issue...

(CROSSTALK)

HOUSTON:  ... others have suggested overweight...

ABRAMS:  Yes.

HOUSTON:  ... but others have suggested overweight...

ABRAMS:  Yes.

HOUSTON:  ... but that‘s often not in someone‘s fair control.  People smoke because they choose to smoke. 

ABRAMS:  So people can‘t control how much they eat, but they can control whether they smoke?  All right.  Well, look...

HOUSTON:  I think that‘s a line drawing issue and I think...

ABRAMS:  Fair enough.

HOUSTON:  ... that‘s a fair representation. 

ABRAMS:  Let me ask Kristi...

HOUSTON:  Some people can and some can‘t. 

ABRAMS:  So Kristi, you‘re glad, I assume that the policy was implemented, right? 

KRISTI SCHMITT, WEYCO EMPLOYEE:  Well, I‘ve grown to accept it.  When it first came into effect—actually, when we were first notified about it, I was definitely angry and felt as if me being a good employee wasn‘t good enough.  And I just felt that it was taking it one step too far and it was a very bold move. 

ABRAMS:  Did you think about leaving the company? 

(CROSSTALK)

SCHMITT:  I didn‘t actually put the steps out there to go to a different company, but I did have the thought of maybe I‘d be valued more somewhere else.  But I since have dealt with it.  I‘ve quit smoking.  I‘m glad I did.  I feel like it was a push that I needed.  But I did it for personal reasons.  I did not quit just for my job.  I quit for my family...

ABRAMS:  Yes.

SCHMITT:  ... and myself. 

ABRAMS:  Looking—good for you. 

SCHMITT:  Otherwise...

ABRAMS:  I mean I‘m certainly not going to sit here and in any way chastise anyone who quit smoking.  I think it‘s terrific.  Paula Brantner, I just have a real problem with the precedent that this sets.  And Mr.  Houston talks about line-drawing, but it just seems to me that you can pick on smokers but if you picked on eaters, for example, or you picked on people when it comes to safe sex, oh, my, you would be hearing it from everyone. 

PAULA BRANTNER, WORKPLACE FAIRNESS:  Yes, you would.  And it‘s really difficult to draw these kind of lines without going down the slippery slope of intruding into what employees do on their own time.  Let‘s ask who among us is so perfect in all of their conduct that they haven‘t done something that is bad for their health.  And do you really want employers to be in a situation to judge that that is grounds for you to be unemployed? 

ABRAMS:  What‘s the matter...

BRANTNER:  To be without a job?

ABRAMS:  What‘s the matter with employers leading the way?  I mean I think that WEYCO would claim look, we are setting a standard here.  We‘re trying to set a goal effectively for our employees.  We‘re helping them achieve that.  They‘d say what‘s the matter with that? 

BRANTNER:  Lots of companies have led the way in encouraging more healthy behavior amongst their employees.  If you talk about eating, they serve more healthy food in the company cafeteria or encourage exercise by adding health club benefits to the company benefits plan.  So there are a lot of things that employers can do.  They can say you‘re not to smoke in our workplace.  You‘re not to smoke in front of our facilities or anywhere on our property.  But what they shouldn‘t be able to do is regulate what you do at home on your own time. 

ABRAMS:  Yes, look and I agree with you.  Let me put up the map of the 30 state that prohibit employers from firing smokers.  You see there.  Although it doesn‘t make entirely clear which color is which, but the yellow ones are the states that protect.  Mr. Houston, so WEYCO now has employees in some states, where they say oh, you know what, the state protects the smokers and in other states where they don‘t, you‘re going after them.

HOUSTON:  WEYCO does have one employee in the state of Illinois.  And while I can‘t see your visual, Dan, I can tell that Illinois does have a different statutory structure and, in fact, that WEYCO employee in Illinois is not subject to the same policy.  That‘s not unusual.  It‘s not unusual for states to have different statutes on a state-by-state basis.

ABRAMS:  See, the problem I have is drug testing, right?  I mean that‘s intrusive.  You‘ve got to, you know, do whatever to prove to someone that you‘re not on drugs.  Drugs are illegal and it seems to me that there‘s an effort in this country to sort of backdoor make smoking illegal.  If people want to make smoking illegal, make it illegal.  Take the cigarettes off the shelves.  But when our employers start getting into the business of telling us what we can and can‘t do when it comes to legal activities, that‘s troubling, isn‘t it?

HOUSTON:  Dan, that‘s where I have to disagree with you strongly.  Because the issue involved in this matter is an issue of choice.  It‘s an issue of workers‘ decision to take a volitional act to smoke.  And that‘s fine.  WEYCO never says no one can smoke.  WEYCO says no one can smoke and work at WEYCO.  That‘s a wholly different issue.  I don‘t think you want to have government intrusively regulating all those daily interactions between workers and the employer.  And in fact, when you said drug testing, that‘s a great point because as you know, not only is it permissible and accepted frankly...

ABRAMS:  Yes.

HOUSTON:  ... widely accepted, recently accepted for employers to drug test for illegal drugs, it‘s also permissible and acceptable for employers to test for impermissible or overuse of legal prescribed drugs.  So I would tell you I don‘t see that there‘s any legal, strictly legal...

ABRAMS:  Well...

HOUSTON:  ... legal principle difference...

ABRAMS:  ... you can make the argument that overuse of prescribed drugs is—I mean if you‘re, for example, buying too many of a particular prescribed drug, that‘s probably illegal.  But... 

HOUSTON:  That‘s correct...

ABRAMS:  All right.

HOUSTON:  ... but you‘re talking about an intrusive interview or intrusive examination of private behavior and those two are indistinguishable. 

ABRAMS:  Yes, well look...

HOUSTON:  You know, and I‘ll give you another example, too.  I don‘t think that you‘re going to be surprised if I told you that a star pitcher for the New York Yankees is going to have a contract that says he can‘t ride a motorcycle.  OK, that‘s private activity. 

(CROSSTALK)

HOUSTON:  That person is not implied to drive a motorcycle...

ABRAMS:  Wait, wait, wait...

HOUSTON:  ... but he still cannot do that based upon his employment contract. 

ABRAMS:  But the difference...

HOUSTON:  That‘s private activity.

ABRAMS:  Right.  But that relates specifically—so you‘re saying

that smoking is actually going to inhibit them from working at the

workplace.  No, what you‘re saying is it‘s going to increase your insurance

costs and you don‘t want that.  And I mean that‘s really the primary thing

·         what I read from the CEO of your money had all to do with the money, financial harm, financial harm.  It‘s all about saving on the insurance costs.  And when you talking about a player playing—riding a motorcycle, you‘re talking about the fact that if he falls, he‘s not playing. 

HOUSTON:  That‘s right, but what does that boil down to other than finances?  Can you explain to me another impact?  That‘s exactly what it is.  Also, I would challenge you a little bit.  I‘ve sat with Mr. Weyers in 18 months of meetings preparing this policy and I will tell you that it is true that financial issues are a concern. 

ABRAMS:  Yes.

HOUSTON:  But I will tell you, and I‘m very serious about this...

ABRAMS:  I got to wrap it up, quickly, yes...

HOUSTON:  ... and I‘m very honest about it.  He has talked with me about employee...

ABRAMS:  He—I‘m sure he has.  But the bottom line is from what I‘m reading from his op ed piece, for example, focused a lot about financial harm, this amount in taxes, this amount a year in absenteeism, et cetera.  All right, but David Houston...

(CROSSTALK)

ABRAMS:  ... Kristi Schmitt, congratulations, by the way, on quitting smoking.  You know, life is going to be...

SCHMITT:  Thank you very much, Dan.

(CROSSTALK)

ABRAMS:  Paula Brantner...

(CROSSTALK)

ABRAMS:  ... thanks a lot for coming on the program as well. 

BRANTNER:  Thank you.

ABRAMS:  Coming up, Bill Cosby‘s lawyer calls the sexual allegations against his client, bizarre.  Prosecutors spoke out today about their investigation.  But can Cosby really do anything now to defend himself? 

(COMMERCIAL BREAK)

(NEWS BREAK)

(BEGIN VIDEO CLIP)

BRUCE CASTOR, MONTGOMERY COUNTY PA DISTRICT ATTORNEY:  She and Mr.  Cosby developed a friendship overtime as related to her employment at Temple University.  And that sometime early last year, it has been reported as January, but we don‘t have any confirmation of that.  That the two of them were at Mr. Cosby‘s home and that the woman said that she was touched inappropriately. 

(END VIDEO CLIP)

ABRAMS:  Montgomery County, Pennsylvania, D.A. Bruce Castor today speaking about the woman who had come forward—almost two weeks ago she came forward, accusing Bill Cosby of groping her.  Cosby‘s lawyers called the allegations—quote—“pointedly bizarre” and questioned why she came forward a year after the incident allegedly took place.  And, you know, remember, she reported it to Canadian authorities.  Police interviewed the woman and also say they have spoken face-to-face with Cosby himself.  When asked about the woman‘s credibility, the D.A. cautioned against any judgments.

(BEGIN VIDEO CLIP)

CASTOR:  And we have to take what she said, try to corroborate as many details as possible.  That way we would build any case.  I did hear a report saying that I had determined that her testimony or her statement was credible, that is inaccurate.  I haven‘t made any such determination one way or the other. 

(END VIDEO CLIP)

ABRAMS:  After complaining of stress, the woman says Cosby gave her a couple of pills and while her memory she says was fuzzy from the evening, she says she recalls the comedian touching her breast and placing her hand on his genitals.  As the D.A. pointed out, the investigation into the woman‘s allegations against Cosby, still ongoing. 

But either way, Cosby‘s name, his image of taken a blow.  It seems that allegations like this are going to stick.  So what can Cosby do to defend himself? 

“My Take”—I am suspicious of this.  I have to tell you.  We need to know more about this.  But waiting a year, reporting it to the Canadian authorities.  Cosby didn‘t lawyer up and instead apparently cooperated with authorities with his lawyer. 

Joining us now Mercedes Colwin, a criminal defense attorney who‘s worked on many sexual harassment cases.  All right, your first impression of this Mercedes? 

MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY:  I agree with you wholeheartedly.  I look at this person and say it took her a year to determine whether to go forward to the authorities?  And not only that, she claims or (UNINTELLIGIBLE) parents have said in the media, that she had to go to massage school to determine whether or not she should go forward, whether they were...

ABRAMS:  Yes.

COLWIN:  ... ethical obligations...

ABRAMS:  That was weird, right? 

COLWIN:  Absolutely...

ABRAMS:  Her parents do this interview in a local newspaper and say oh, the reason she came forward now is because she was massage therapy training and realized what‘s appropriate and inappropriate touching?

COLWIN:  What great fodder for cross-examination.  I mean I would be chomping at the bit to get at her for that—with that type of quote against her.  But here‘s a bigger issue too.  I mean you‘re looking at Bill Cosby and you say to yourself let your lawyers do the talking.

Let your lawyers go forward and just categorically deny the allegation, which is what he‘s done, and just sit back and let this case unravel.  Because undoubtedly it will and her credibility is at the crux of this case.  They‘re going to look and take it apart and say is this the type of person that can withstand cross-examination by the defense attorney?  I mean that as a prosecutor you have to determine.  Am I going to set forth time, money and resources of taxpayer‘s funds to prosecute this type of...

ABRAMS:  Yes.  We‘re at this kind of odd point in the case where he hasn‘t been charged with anything.  Yet the allegation is out there.  Here‘s what Mr. Castor said about how Cosby and his lawyer have been acting. 

(BEGIN VIDEO CLIP)

CASTOR:  He and his lawyer have been fully cooperative with us, without delay or hesitation and that helps us move forward more quickly than you might otherwise have thought we would. 

(END VIDEO CLIP)

ABRAMS:  Let‘s assume for a moment that Cosby is innocent.  Again, assuming.  You‘re his lawyer.  He comes to you.  He says, you know, this is nonsense.  This is ludicrous.  This never happened.  What do you tell him to do in this interim period while the prosecutor is deciding what to do? 

COLWIN:  Bill, don‘t talk to anybody.  Let me do the talking... 

ABRAMS:  But they‘re ruining my reputation. 

COLWIN:  We will deny...

ABRAMS:  People are talking about it. 

COLWIN:  We‘ll deny the allegation...

ABRAMS:  Dan Abrams was on TV discussing it. 

COLWIN:  We‘ll give Abrams an audience.  We‘ll go on Abrams‘ show, for sure...

ABRAMS:  Yes.

COLWIN:  ... but certainly just deny it and press—I wouldn‘t hold press conferences because I think what ends up happening is the public says me doth protest too much.  Why is this person holding press conferences?  Why is he running to the media?  Let it just make one denial, let that spread through the media and then move on.  Because ultimately the case is going to unravel.  I think if you start protesting too much in the beginning it starts to hurt you in the long run.

ABRAMS:  Mercedes, great to see you again...

COLWIN:  Great to see you.

ABRAMS:  Thanks for coming on.

COLWIN:  Thanks Dan.

ABRAMS:  Coming up, we‘ve been talking about the child molestation trial of ex-priest Paul Shanley.  One of you thinks we‘ve unfairly targeted the Catholic Church.  I respond to your e-mails coming up. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, officials hope 50 percent of eligible voters in Iraq show up to the polls this weekend.  I salute those brave Iraqis who may risk their lives to vote.  Coming up. 

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—a salute to what I hope will be to the bravery of the Iraqi people.  Elections for the 275 member National Assembly is scheduled for Sunday.  While the terrorists are making their final campaign pitch, distributing leaflets with threats to kill or maim anyone who does vote.  One note left a polling place vowed to wash the streets with voters‘ blood. 

Officials still hopeful that 50 percent of the eligible voters will show up.  Even if it‘s 40 percent, that would still be a higher percentage in vote in many American elections.  And it seems Iraqis living abroad not quite as brave as their brothers and sisters in Iraq.  They‘re expected to be.

Only 10 percent of the eligible Iraqis in this country have registered to vote so far.  The turnout worldwide has been far lower than expected.  MSNBC‘s “Question of the Day” shows that only 38 percent of people surveyed said they would risk their lives to vote if they were Iraqi.  And it‘s harder said than done, so that number might actually be a lot lower. 

Whatever you think about the war effort, it is pretty amazing when you think about it.  Iraqis will literally be risking their lives to have their voices heard to participate in a form of government some of us just take for granted. 

I‘ve had my say, now it‘s time for “Your Rebuttal”.  The trial of defrocked Catholic priest Paul Shanley began yesterday, accused of molesting dozens of children, but now facing his first and likely only criminal trial.  The sole witness and accuser in this case relying on memories of abuse in the 1980‘s that he says he forgot and then recovered after the priest abuse scandal made news three years ago.  One of our guests did not buy the whole concept of repressed memories. 

Carol Stricklin in Germantown, Tennessee.  “I too used to think the whole idea was absurd.  Then one day about six years ago I suddenly remembered a molestation by my grandfather when I was 6 years old.”

From Lebanon, Pennsylvania, Ginny Yingst.  “Up until five years ago I had repressed memories of the rape that I experienced in 1981 at the hands of a—quote—“friend”.  When you experience something so traumatic not only once, but on a repeated basis, repressing the memory becomes a coping mechanism.”

Finally, Michael Tancredi in San Diego.  “As a Catholic, I am very curious as to why the media pays no attention to the sex abuse charges in other denominations.  My presumption is the anti Catholic bias in the media.  Sexual abuse by clergy happens all across religious backgrounds and denominations.”

All right, you know, we got a number of letters like this and it‘s just—it‘s nonsense.  I mean keep in mind, this was something that—this was a problem that extended well beyond just a few priests -- 800 of them temporarily suspended.  Eighty to 90 percent of archdioceses have settled cases.  That‘s media bias.  Come on Michael.  First step here is admitting that there was a huge problem. 

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

“OH PLEAs!”—it looks like perspective johns in Texas may soon be forced to jump through some hoops to get prostitutes to believe they really mean business.  Police have targeted operations advertising themselves as stress relief clinics.  Massage parlors that were really offering sex.  The solution?  You show me yours, I‘ll show you mine approach. 

Some hookers demanded their clients take off all their clothes before negotiating a price.  They thought a real cop wouldn‘t get naked.  They were wrong.  Under the new rules, Texas undercover cops are allowed to get naked in an effort to beat the prostitutes at their own game.  The disrobing sting took place over four months, helped the Houston P.D. make a whopping 56 arrests.  The real life naked gun.

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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