updated 1/28/2005 1:51:00 PM ET 2005-01-28T18:51:00

Guest: Jack Jacobs, Seth Jones, Rikki Klieman, Charles Crist, Jr., Joshua Marquis, Kerry Max Cook, Barry Scheck, Holly Skolnick

DAN ABRAMS, HOST:  Coming up, three days until Iraqis head to the polls—the country literally in lockdown mode to try to bring out the vote while containing the terrorists. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  On Election Day, all cars will be banned from the streets.  Land borders and airports closed, a strict curfew in place.  But is that enough to prevent the bloodbath promised by the terrorists? 

Plus, the alleged victim in the sex abuse trial against defrocked priest Paul Shanley breaks down on the stand, leaving the judge to plead with him to come back to finish his testimony tomorrow.  We‘ve got the tape. 

And a star-studded movie about people all on death row and supposedly falsely accused.  But there are lots of questions about whether at least two of the—quote—“exonerated” are actually innocent.  We talk to one of the men whose innocence is in question. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket, trying to keep Iraq safe enough so people will actually go to the polls and vote when the country holds those important elections on Sunday.  Some of the measures Iraq‘s interim government planning to try and keep terrorists from scaring voters off, dusk to dawn curfews, total ban on civilian traffic.  There is even a report that Iraq‘s phone system will be shut down.  Sunday could see a country in lockdown.  And now in the final days before the election, U.S.  forces intensifying efforts to make polling places safe enough so that Iraqis will risk showing up. 

NBC‘s Campbell Brown has more. 

(BEGIN VIDEOTAPE)

CAMPBELL BROWN, NBC NEWS CORRESPONDENT (voice-over):  Local schools turned into polling stations and now a major target.  Throughout Baghdad, American forces are patrolling the neighborhoods around them. 

UNIDENTIFIED MALE:  (UNINTELLIGIBLE)

UNIDENTIFIED MALE:  The white walls and it‘s got the red tile roof. 

BROWN:  Their mission today to try to preempt possible attacks. 

(on camera):  How nervous are you this week? 

UNIDENTIFIED MALE:  (UNINTELLIGIBLE) BROWN:  More so than normal? 

UNIDENTIFIED MALE:  Yes, it could be interesting. 

BROWN (voice-over):  Most of these soldiers say they expect more bloodshed between now and Sunday, but they are doing what they can.  This battalion is tasked with door-to-door sweeps. 

UNIDENTIFIED MALE:  Since your house is this close to the polling site, we just need to take a quick look through and kind of clear the house. 

BROWN:  Once inside, they search for weapons. 

UNIDENTIFIED MALE:  (UNINTELLIGIBLE)

UNIDENTIFIED MALE:  Roger.

BROWN:  And scope out locations where a sniper might target voters who do show up. 

(SIRENS)

BROWN:  Car bombings have been rampant in recent weeks.  On Sunday, all vehicles will be banned from the street, though it does mean people will have to walk to polling places.  Once there, they will be protected by Iraqi troops and police.  U.S. troops like these on patrol in Sadr City will try to keep a lower profile. 

(SOUNDS)

BROWN:  Yet despite almost daily attacks, there are parts of the city where there‘s a semblance of normal life and where we with military troops nearby were able to interact with people freely. 

(on camera):  That‘s a good fit. 

(LAUGHTER)

BROWN:  This area of Baghdad is one of the few places we feel safe walking around.  The military is on patrol here.  There are children outside playing.  People sitting out on their porches, and a polling station just a few blocks from here is likely to get some activity on Sunday. 

(voice-over):  Hopefully it‘s people voting peacefully that the city is holding its breath at least until voting is over and polling places close. 

(END VIDEOTAPE)

ABRAMS:  NBC‘s Campbell Brown in Baghdad.  Now this isn‘t the first time in recent years international forces, including the U.S. have tried to secure elections who were threatened by terrorists.  It happened in Afghanistan in October, Kosovo in 2001, and East Timor in 1999.  In all three cases there was some violence, but observers said the process was fair enough and the turnout large enough to be judged successful.  Iraq obviously is going to be a bigger task than any of those. 

Retired Army Colonel Jack Jacobs is an MSNBC military analyst and Seth Jones is an expert in security at nations like Iraq, senior researcher with the RAND Corporation and adjunct professor at Georgetown. 

All right.  Gentlemen thanks very much for coming on the program. 

Appreciate it.  Jack, we‘re talking about lockdown here, right?

COL. JACK JACOBS (RET.), MSNBC MILITARY ANALYST:  Yes, I think so.  There are going to be about 35,000 American troops in Baghdad alone.  And there will be an inverse relationship between the number of troops we have to provide security and the vote that‘s going to be turned out because the smallest turnout of vote you‘re going to have is going to be in Baghdad. 

ABRAMS:  And when you say in inverse, you mean there are going to be the most troops there and the least number of people voting...

(CROSSTALK)

JACOBS:  Look, if you go to a place like Kurdistan, you‘re going to have relatively few troops up there providing—required to provide security, big vote.  Down in the Shia area is the same, big vote, in Sunni areas very small vote. 

ABRAMS:  Seth Jones, let me read you some of the security plans.  Saturday to Monday a public holiday, security force on high alert.  Curfew from 8:00 p.m. to 6:00 a.m. from Friday to Tuesday.  Vehicle traffic restricted for holiday and banned on Election Day.  Security cordons around the polling centers, civilians banned from carrying weapons and congregating near controlled points and polling places.  Salary hikes, bonuses, and medals for Iraqi security forces.  Enough? 

SETH JONES, RAND CORPORATION:  Well, I think these are necessary steps and necessary precautions.  I mean as we‘ve seen in especially in areas of the Sunni triangle, the levels of violence are likely to be high.  So I think these levels of forces are actually both sufficient and necessary to insure some sense of stability...

ABRAMS:  Seth, how did it work in other—I mean we talked about Afghanistan.  We talked about East Timor.  We talked about Kosovo.  Was there anything like this in any of those places? 

JONES:  Well, not necessarily in terms of the total number of U.S.  forces, but we still had largely—we had about 18,000 U.S. forces in Afghanistan, plus another 10,000 NATO forces. 

ABRAMS:  But forget about numbers of forces.  I am talking about the security precautions that are in place. 

JONES:  We had pretty significant security precautions in Afghanistan, especially in major cities like Kabul, though certainly not on the level as we‘re seeing in Iraq because the level of violence is much greater here. 

ABRAMS:  And Jack, you are saying there is a fundamental difference between...

JACOBS:  Yes...

ABRAMS:  ... this and the rest of those elections.

JACOBS:  All those and this one.  Don‘t forget, in all the other ones, there was at least some semblance of agreement that there would be elections...

ABRAMS:  And there should be elections...

JACOBS:  ... should be elections. 

ABRAMS:  Yes.

JACOBS:  That there was going to be a new government, that there should be a new government.  Here you don‘t have that, particularly in the Sunni areas.  There is no agreement that there should be any government whatsoever among the Sunni. 

ABRAMS:  Paint a picture for us, if you can, Jack, of what this is going to look like.  You pointed out to me Iraq very urban.  Give us—are people literally going to be walking for, what, six hours?  They can‘t drive. 

JACOBS:  They‘re not likely to walk for six hours, but I tell you this, they are likely to be in line for six hours.  Don‘t forget, everybody is going to get a full body pat down before he gets anywhere near the polling place. 

ABRAMS:  But are they going to be able to—I mean if they are not allowed to drive in the city itself, right, do you have any—I mean how big is Baghdad?  Are there going to be enough polling places so that people won‘t have to walk three, four, five hours? 

JACOBS:  There‘ll be—there is a large number of polling places.  They won‘t have to walk very, very far, but they‘re going to be—each of the polling places is going to be very, very isolated.  And the security is going to be as difficult as any kind of security you can possibly imagine anywhere.  They‘re not going to be able to get in car bombs in there, but don‘t forget they don‘t want any humans carrying bombs. 

But one of the things that they‘re not going to be able to prevent is lobbing mortar shells into the polling areas or just indiscriminately into populated areas and there are lots of them.  The last few days we‘ve seen lots of mortar acts.  You know what those have been?  They haven‘t been to destroy the school where the polling places is going to be, it‘s to register, that is to zero the weapons so that they know exactly what data to put on the mortars to drop the rounds down the tube to drop it into populated areas and blow up people in the street.  So...

ABRAMS:  What (UNINTELLIGIBLE) is so nerve-wracking obviously is the fact that you‘ve got these terrorists who are now going to know exactly where people are going to be.  I mean sure, they know where some of the troops are at times, but now they are going to know exactly where the civilians are going to be on a particular day at a particular time. 

JONES:  Right.  I mean I think one thing we have to recognize, and if you look, for example, at the U.N. held elections in Cambodia in the early 1990‘s, is there may be substantial violence at some polling stations.  I mean during those elections, the U.N. actually had to close down some polling stations because there was violence there and bring in, in some cases mobile polling stations.  But just because there‘s going to be violence at some stations and just because some may get closed down does not mean that the overall elections will not be and cannot be fair and relatively fair and free and in some cases successful. 

ABRAMS:  Here‘s what President Bush had to say about that. 

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  The fact that they‘re voting in itself is successful.  Again, this is a long process.  It is a process that will begin to write a constitution and then elect a permanent assembly.  And this process will take place over this next year.  It‘s a grand moment for those who believe in freedom. 

(END VIDEO CLIP)

ABRAMS:  Jack, real quick, how many candidates are we talking about for most of these elections?

JACOBS:  Oh, there are thousands of candidates up for—there are lots and lots of spots, thousands of candidates, lots of political parties.  That‘s a good thing, by the way. 

ABRAMS:  Yes.

JACOBS:  It means that it‘s very, very difficult to intimidate everybody who is going to—who is running...

ABRAMS:  Yes.

JACOBS:  ... and so it‘s more—the more diverse the candidate pull, more likely the...

ABRAMS:  You got to hope they know these - I hope it‘s not like these judicial elections in New York where I look at the - I‘m the legal guy.  I look at the names of these judges.  I have no idea who they are.  But anyway, all right, Jack Jacobs and Seth Jones, this is important stuff and they‘re doing everything they can.  Thanks a lot for coming on the program.

JONES:  Thanks Dan.

ABRAMS:  Coming up at 9:00 Eastern on MSNBC, Campbell will have a look at what‘s being done to get ready for Sunday‘s election.  A special report, “Iraq Votes”.

Coming up, the only alleged victim back on the stand in a sexual abuse trial of former priest Paul Shanley, the alleged victim broke down in tears on the stand.  The judge had to literally beg him to come back tomorrow.

And it seems Florida‘s attorney general thinks Rush Limbaugh‘s got a pretty good argument when it comes to his medical records, as the investigation into his use of painkillers continues.  The A.G. has filed a (UNINTELLIGIBLE) in support of Limbaugh, saying that a search warrant shouldn‘t have given his fellow prosecutors access to all those records.

And the new movie “The Exonerated” details six cases of people who were supposedly wrongly accused on death row—lots of questions though about whether all of them were actually innocent.  We‘ll talk to one of the men who was portrayed in the film.

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, lots of emotion coming out of the Paul Shanley trial today.  One of the alleged victims broke down on the stand.  We‘ll hear some of that testimony coming up next.

(COMMERCIAL BREAK)

(NEWS BREAK)

(BEGIN VIDEO CLIP)

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  I can‘t do this again.  I can‘t start over again.  Every time I come back, I have to start over. 

(END VIDEO CLIP)

ABRAMS:  That was the response the accuser of Paul Shanley gave after a judge pleaded with him to return for a third day of testimony—he begged him.  Said please, don‘t make me come back.  Day two-emotional for the man—the defense attorneys started asking him details about the allegations he says of abuse.  The 27-year-old could be heard sobbing loudly.  This is graphic. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Question:  Do you recall how many times Father Shanley performed oral sex on you during this 1983 to 1986 period? 

No, I don‘t. 

UNIDENTIFIED MALE:  Would you say that it was about the same frequency as the penetration? 

I don‘t remember.  I remember at least one time. 

(END VIDEO CLIP)

ABRAMS:  Yesterday the accuser also wept as he detailed the abuse that he says happened in church pews, the rectory, the confessional, starting when he was 6.  Today the defense tried to bring out another side of him. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Is Mr. (UNINTELLIGIBLE) a friend of yours? 

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  I haven‘t spoke with Anthony.

UNIDENTIFIED MALE:  Sir, I‘m not asking...

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  ... will you let me finish...

UNIDENTIFIED MALE:  No sir. 

UNIDENTIFIED FEMALE:  Objection.

UNIDENTIFIED MALE:  No sir...

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  Don‘t ask a question if you won‘t let me answer you. 

(END VIDEO CLIP)

ABRAMS:  Well, you know, his temper, that‘s one of the things that they want to bring out.  It‘s one of the things that the accuser blames on Shanley‘s abuse, along with his excessive use of alcohol, steroids, problems maintaining relationships; he says even his failure to realize his dream of being a Major League Baseball player.

Joining me now criminal defense attorney Rikki Klieman, worked as a prosecutor in Middlesex County where the trial is taking place.  Rikki, we‘ve got a witness, the only witness in this case, against this guy, sobbing on the stand so much that he is begging the judge not to come back tomorrow.  Which way does that cut? 

RIKKI KLIEMAN, CRIMINAL DEFENSE ATTORNEY:  It cuts both ways, Dan.  One of the things that you have to remember about this case is that Paul Shanley is public enemy number one in Massachusetts.  Everyone, including these jurors, has heard about him, has read about him, and he is looked at as the priest who was defrocked, the priest who had been taken out of Massachusetts because of allegedly molesting young boys. 

On the other side of this case, you have one accuser with no corroboration whatsoever, nothing.  With a quote, unquote repressed memory from 20 years before that he says was triggered by learning of other peoples‘ accounts in the news.  So let‘s get to your question.  He breaks down; he doesn‘t want to come back.  Well what does that tell us?  That he‘s telling the truth or that he‘s telling a fib.  And that‘s going to be up to those 12 jurors to decide. 

ABRAMS:  All right.  Here‘s part of the direct examination of what he

·         sort of how he says that Shanley started to abuse him. 

(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:  And another issue in this case has been money.  I mean the defense is basically suggesting that, you know, maybe he did this for $500,000, which he got as a settlement.  A lot of other people got settlements as a result of what Shanley allegedly did to them.  Here‘s what was said about that on direct examination.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  When it settled out of court, did you get something? 

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

UNIDENTIFIED FEMALE:  What did you get? 

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  I got money. 

UNIDENTIFIED FEMALE:  How much money did you get? 

VOICE OF 27-YEAR-OLD MAN ACCUSING PAUL SHANLEY OF ABUSE:  500,000. 

(END VIDEO CLIP)

ABRAMS:  You know, Rikki, everyone makes such a big deal about this issue.  It seems to me he‘s already gotten the money, so what incentive does he have to come in and lie now? 

KLIEMAN:  Well, of course, that‘s the prosecution‘s greatest point.  He would never be here because he has already been paid.  He doesn‘t need to get paid later on.  But there is another side to this, Dan, if I can argue on behalf of Frank Mondano‘s defense on behalf of Paul Shanley. 

What Mr. Mondano was trying to say is look, this kid made this up.  He made it up because he heard about friends.  They were all in the same catechism class.  It looked like they were going to get some money.  He says he suddenly has a memory that he hasn‘t had for 20 years and it just conveniently tailors to their memory. 

What happens in this young man‘s case is now he‘s 27.  He‘s a firefighter in Newton, and the defense is saying, look, he went forward.  He was with the plaintiff‘s attorneys all the way.  He collected the money, and now he also wants to show that he really was a victim.  He was a victim.  He is a firefighter.

ABRAMS:  Yes.

KLIEMAN:  He‘s close to the police.  It‘s very tough sell for the defense, Dan...

ABRAMS:  It is so...

KLIEMAN:  ... it‘s a hard sell. 

ABRAMS:  It‘s so disturbing to me that this case could very well end up in a not guilty verdict and Shanley walking free because the statutes of limitations, victims who have become so messed up that they can‘t testify, and you know, a guy—their one witness here—this is not your ultimate witness in a case like that.  All right.  I got to wrap this up. 

Rikki Klieman thanks a lot.  Good to see you again.  Sorry it was so short. 

KLIEMAN:  That‘s all right.  Remember the presumption of innocence, Dan. 

ABRAMS:  What is making the attorney general in Florida side with Rush Limbaugh in a case one of his fellow prosecutors is pursuing?  I ask him up next.

And a new film showing the stories of six people supposedly wrongfully accused of horrible crimes, but some have doubts about whether all of them are actually innocent.  We‘ve got a big debate coming up.

(COMMERCIAL BREAK)

ABRAMS:  Florida Attorney General Charles Crist is siding with Rush Limbaugh in the state‘s highest court, saying that even in a criminal investigation the police should not have seized all of Limbaugh‘s medical records.  That means the state‘s highest-level lawyer is at odds with local prosecutors who say there was nothing wrong with police getting a search warrant and taking Limbaugh‘s records. 

Limbaugh has publicly admitted he suffered from an addiction to prescription painkillers.  He‘s the subject of a criminal investigation in Florida.  The question there is whether he violated the state‘s doctor-shopping statute by obtaining overlapping prescriptions for OxyContin and other drugs from numerous different doctors.  After two witnesses told police they had sold Limbaugh large quantities of prescription drugs, police got a warrant and seized all of Limbaugh‘s medical records. 

His attorneys challenged that in court claiming police violated Limbaugh‘s right to privacy.  Limbaugh lost in court last year.  They‘re appealing. 

“My Take”—police should not have had to warn Limbaugh ahead of time that they were coming to seize his medical records as the defense claims.  You do that to everyone who is the subject of an investigation.  They‘ll destroy their records before the police arrive. 

But when they got there, they shouldn‘t have been allowed to take everything.  Rush Limbaugh‘s records showing he had the mumps when he was 12, how is that relevant to the criminal investigation?  Joining us now is Florida‘s Attorney General Charles Crist Jr.  Mr. Attorney General, thanks for coming on the program.  Appreciate it.  All right...

CHARLES CRIST, JR., FLORIDA ATTORNEY GENERAL:  My pleasure. 

ABRAMS:  Your position is somewhat consistent with mine, correct? 

CRIST:  I think it‘s exactly consistent with what you talked about, Dan.  We think it‘s very important to balance the rights of individuals and make sure that you are enforcing the laws of the state of Florida, which is very important to us obviously.  I‘m the chief legal officer of the state and we think you have to have the search and seizure law such that law enforcement officials have the opportunity to get the evidence that they need, but you‘ve got to make sure that in the process you protect the right to privacy that the patient has in that doctor-patient relationship.  And we think that‘s the balance that we have struck in our brief to the Florida Supreme Court in this case. 

ABRAMS:  Yes and again, I agree with much of what you say.  Isn‘t it a little odd for you to be sort of at odds with a local prosecutor who is involved in this case and the chief lawyer in Florida with all the gravitas and significance that your opinion would have comes in and says, hey, we don‘t agree with him. 

CRIST:  Well it‘s probably not the norm, but you know, from time to time, you know, we‘re not going to agree on everything and this is one of those times.  But we do in it a respectful way.  We think it‘s important that you know, the rights of an individual, their right to privacy as a patient are protected, but at the same time, you understand how important it is for law enforcement to be able to get records. 

So what we‘ve argued to the court is law enforcement should have that right.  They ought to be able to go ahead and get those kinds of record, but they ought to be protected.  They ought to go then back before a judge, the chain of custody should be very well protected so that there is no exposure to that patient. 

ABRAMS:  So let me just be clear.  You are saying that they should be able to go in, right, without warning, correct?  They should able to get a warrant, go in without warning him and then, what, as a practical matter go through the records and make sure they‘re only taking the ones that are relevant to this investigation, right? 

CRIST:  Well that‘s exactly—it shouldn‘t be anything except those things that are relevant.  That‘s why it ought to go back to a judge for a hearing so that both sides...

(CROSSTALK)

ABRAMS:  But just so...

CRIST:  ... the side of law enforcement...

ABRAMS:  ... we understand when you say go back to a judge, when?  I mean they‘ve gone in.  They‘ve taken, according to you, let‘s just say the records that they believe are relevant.  You are saying don‘t even look at them—don‘t give them to the prosecutors.  Bring them to a judge and then let the judge decide before the prosecutors get them what‘s in those records, what‘s relevant, what‘s important. 

CRIST:  That‘s exactly right, Dan, and that‘s what we‘re arguing.  We think that‘s the fair balance that needs to be struck here.  Because unless you have a judge—have an opportunity to review those and most importantly, both law enforcement and the individual‘s attorney have the opportunity to make their points before the judge before those records are exposed to the world, then that‘s the important point to make.  Give them their due process. 

ABRAMS:  These records...

CRIST:  Make sure they have that chance. 

ABRAMS:  And we should say these records are under seal now.  I mean the police were going to release them.  A judge said hey, wait.  Keep them under seal until we resolve—very quickly, what do you make of the allegation people say you are a Republican, that prosecutors down there are Democrats, Rush Limbaugh is a Republican.  Quick response. 

CRIST:  I make nothing of it.  What we try to do is what we believe is right.  We want to balance the rights of law enforcement.  We want to balance, also, the right of the patient.  That is a sacred relationship between the doctor and patient.  Those records should not be exposed unless a judge makes an independent determination that it is relevant, that it is important, and it bears on the case at hand. 

ABRAMS:  Mr. Attorney General, I know you went out of your way to get on the show tonight.  I really appreciate it.  Thanks a lot.

CRIST:  Dan, it‘s a pleasure, always good to be with you.

ABRAMS:  Coming up, two people convicted of murder and sentenced to death, now portrayed as wrongly accused in a new movie called “The Exonerated”.  The movie suggests they‘re all innocent.  There a lot of questions about whether that‘s true.  We got a big debate coming up.

And Amber Frey back in the news and back in court—nothing to do with the Scott Peterson case, at least not really. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a star-studded movie about six people freed from death row because they were falsely accused, but there are a lot of questions about whether at least two of them are actually innocent.  We‘ll talk to one of them, but first the headlines. 

(NEWS BREAK) 

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  From 1976 to 1992, just remove that entire chunk from your life, that‘s what happened. 

(END VIDEO CLIP)

ABRAMS:  Tonight a star-studded movie is premiering on Court TV.  Susan Sarandon, Aidan Quinn, Danny Glover, Brian Dennehy, just to name a few.  It‘s about six people all on death row, all they say falsely accused. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Nobody had seen me there.  There was no connection between me and the place where the crime occurred because I wasn‘t there. 

(END VIDEO CLIP)

ABRAMS:  But there have always been questions about whether at least two of the six were really innocent.  Sonia Jacobs, a Florida woman who was convicted of killing two police officers and Kerry Max Cook, a Texas man convicted of mutilating his neighbor, both are now free.  They are the ones portrayed by Susan Sarandon and Aidan Quinn. 

“My Take”—this is an ongoing problem.  People confusing not guilty or released with didn‘t do it.  Not guilty means there wasn‘t proof beyond a reasonable doubt or in some of these appeals that there were errors made at the trial.  That doesn‘t mean that they are actually innocent. 

Now, with that said, many people who were actually innocent have been released from prison in the past 10 years from death row included.  Based on what I have read about at least two of these cases in the movie, I am not convinced yet that either is actually innocent, but we‘ll talk about it. 

Joining me now Josh Marquis, the D.A. in Oregon who‘s on the Board of Directors at the National District Attorneys Association.  He questions the innocence of Sonia Jacobs, Kerry Max Cook, and even maybe others featured in the movie.  Attorney Barry Scheck—Barry good to see you—co-founder of the Innocence Project...

(CROSSTALK)

ABRAMS:  ... a group that has been single-handedly responsible for helping free many innocent prisoners using DNA evidence.  And two people who perhaps know the most about these two contested cases, Holly Skolnick, attorney for Sonia Jacobs, who was freed after 17 years, and on the phone, Kerry Max Cook, who was the man released after 20 years. 

All right.  Josh Marquis, let me start with you and let‘s start with the case of Mr. Cook portrayed by Aidan Quinn in this movie.  What is your concern about that case?

JOSHUA MARQUIS, DISTRICT ATTORNEY, CLATSOP COUNTY OR:  Well my concern about it is that, as you say, when we use the word “exonerated,” that means innocent.  That means didn‘t do it.  And four of us here are lawyers, all except Mr. Cook, and if somebody is asked the question of Mr. Cook or Mr.  Cook is asked have you ever been convicted of a crime, he has to say yes because he pled no contest to murder in the second degree in order to get out of prison after 20 years. 

ABRAMS:  Right.  But you might do the same thing.  I mean look, if you have been in prison for 20 years and they say to you, hey, plead...

MARQUIS:  Sure...

ABRAMS:  ... and we‘ll let you leave, you might do it. 

MARQUIS:  I might do it, but I would never be able to claim that I had been exonerated or...

(CROSSTALK)

MARQUIS:  O.J. Simpson...

ABRAMS:  All right, but factually, what is your concerns in the Cook case? 

MARQUIS:  Factually my concerns after speaking to the prosecutor and reading a lot of materials about that case is that there is enormous amounts of evidence as were found by a lot of lower courts that point to Kerry Cook‘s guilt.  Now Mr. Cook and I‘m assuming Mr. Scheck are going to talk about a DNA sample that was found after Mr. Cook pled no contest to tie the murder of Linda Jo Edwards.  And these people have names, let‘s use them, who was raped and murdered. 

But the fact of the matter is that that was a DNA sample, which Mr.  Scheck knows all too well cannot be dated.  They have no idea when it was left and it was left by the man with whom Linda Jo Edwards was having an affair, so it really doesn‘t mean very much.  So, there are a number of people in this place—some of them really may be innocent, but exonerated means something and this play is attempting to drive the public debate in this country by basically telling people that anyone, anyone could be snatched off the street, including you and sentenced to death row. 

ABRAMS:  And Mr. Cook, those who take Mr. Marquis‘ position have pointed out that you know, you made a statement, for example, that you didn‘t even know the woman.  It turns out there was a fingerprint of yours found at the scene, et cetera.  What do you make of those who are watching this movie and they‘re saying, wait a second.  I‘m not convinced that he‘s actually innocent. 

KERRY MAX COOK, FREED AFTER 20 YEARS (via phone):  I have a whole lot to say, but unfortunately, as we all know, the media works in sound bites.  In terms of the DNA, I‘d like to say that when the DNA was sent to the DPS lab, Department of Public Safety in Garland, Texas the Smith County District Attorney‘s Office claimed that this would finally show the world that I‘d raped and murdered Linda Jo Edwards.  Well, it‘s strange.  Ask Mr.  Marquis to answer this.  If it was sufficient enough to prove that I was guilty, then why isn‘t it sufficient enough to prove that I‘m innocent? 

UNIDENTIFIED MALE:  Let me answer that question...

COOK:  Wait...

UNIDENTIFIED MALE:  Let me—can I jump in here, Dan...

ABRAMS:  Hang on. 

(CROSSTALK)

ABRAMS:  I‘ll let you answer that quick question...

UNIDENTIFIED MALE:  No, I actually think...

ABRAMS:  Oh, Barry...

BARRY SCHECK, INNOCENCE PROJECT CO-FOUNDER:  Yes, it‘s Barry...

ABRAMS:  Barry...

SCHECK:  And I‘d like to just jump in because I‘m afraid that my friend Mr. Marquis is not learning the lessons that he should from a case like Kerry Max Cook.  Now let‘s first of all get context here.  Mr. Cook was tried four times, well—and they were reversed for prosecutorial misconduct.  In ringing terms by...

UNIDENTIFIED MALE:  What does that have to do with innocence Barry...

SCHECK:  Oh, it has a lot to do with innocence in this case...

MARQUIS:  So if a prosecutor misconducts...

SCHECK:  No, no, no, no...

MARQUIS:  ... himself the person is innocent? 

SCHECK:  No, no, let‘s get very straight here.  He took an Alfred plea, meaning that he never...

UNIDENTIFIED MALE:  Actually, no contest. 

SCHECK:  ... conceded that he was guilty, but that they had enough evidence to go forward to get time served so he wouldn‘t be tried yet again, which any rational person after being literally framed all these different times would do.  Now I want you to say that you would go along with this kind of misconduct.  The court said unequivocally that in his trial the district attorney got a guy named Edward Shyster Jackson , who was a jailhouse snitch, who was in on pending murder charges and gave him an involuntary manslaughter plea, never revealed this, told the jury...

UNIDENTIFIED MALE:  But Barry...

(CROSSTALK)

ABRAMS:  Hang on.  Hang on.  Hang on...

(CROSSTALK)

ABRAMS:  Josh...

(CROSSTALK)

SCHECK:  Just hold on a second...

ABRAMS:  Barry...

(CROSSTALK)

ABRAMS:  Everyone hang on...

SCHECK:  Just hold on a second. 

ABRAMS:  Barry, let me ask you the question.  Before you go into all the problems with the trial, I want to focus on actual innocence...

SCHECK:  I‘m talk about actual...

ABRAMS:  All right...

SCHECK:  ... innocence right now, right now.  Just listen to this.  You are talking about the DNA evidence.  At the trial—at these trials, there was a fingerprint because Mr. Cook admitted that he knew this woman, he had been to her house.  There was a fingerprint found on her patio door...

ABRAMS:  He didn‘t admit it at first. 

SCHECK:  The prosecutor, he took the position he‘d been in the house.  The prosecutor—and this is—the courts found this.  The prosecutor that Mr. Marquis is telling us we should believe when he says Cook is guilty coerced a fingerprint expert to say against that guy‘s will in court and left it uncorrected that he could date the time the fingerprint was left there.  Now, let‘s talk about the semen.  Just after Kerry was made to take this Alfred plea...

UNIDENTIFIED MALE:  Made to take the Alfred plea? 

SCHECK:  Absolutely.  You know, Josh Marquis...

MARQUIS:  Why?  He would have gone to trial again...

SCHECK:  Josh Marquis...

MARQUIS:  ... and he could have been found guilty and gotten the death penalty. 

(CROSSTALK)

SCHECK:  Hey listen...

UNIDENTIFIED MALE:  Oh my God...

SCHECK:  ... you wouldn‘t be tried four times, four times with prosecutorial misconduct because the conservative Texas courts to roundly condemn it.  You, if you were faced with that possibility after being in prison and raped in prison and mutilated, you would take time served, too.  Anything...

ABRAMS:  All right.  Let me let Josh in here for a second...

(CROSSTALK)

ABRAMS:  Barry, hang on...

(CROSSTALK)

ABRAMS:  ... for two minutes.  Let me let Josh...

SCHECK:  Wait a second...

ABRAMS:  Let me—I got to let Josh respond...

SCHECK:  Let me talk about the DNA...

ABRAMS:  Barry, Barry, hang on a second.  I‘ve got to let Josh respond.  Josh...

(CROSSTALK)

ABRAMS:  ... quickly, if you can. 

SCHECK:  Let him respond to the DNA because he made a misrepresentation...

ABRAMS:  Respond to the DNA.  OK, go ahead. 

(CROSSTALK)

ABRAMS:  Hang on.  Barry, let Josh...

MARQUIS:  Thank you very much. 

SCHECK:  There was semen found in...

MARQUIS:  Excuse me, Barry. 

SCHECK:  ... the underwear of the victim.

MARQUIS:  Those who talk loudest...

SCHECK:  Go ahead, Josh.  Yes, talk about the DNA.

MARQUIS:  I will talk about the DNA and I guess Mr. Cook is on the line, so we can ask him. 

COOK:  Yes you can...

MARQUIS:  Why did Mr. Cook resist DNA testing all the way up until after his no contest plea? 

COOK:  Can I answer that? 

ABRAMS:  Yes, you can, sir. 

SCHECK:  No...

ABRAMS:  Barry, Barry...

(CROSSTALK)

ABRAMS:  Barry, stop it.  I‘m going to let Mr. Cook respond...

SCHECK:  That is a diversion...

(CROSSTALK)

SCHECK:  I‘m not going to let Mr. Cook respond because...

ABRAMS:  You‘re not his lawyer, Barry.  Let him...

(CROSSTALK)

ABRAMS:  He wants to answer the question. 

COOK:  ... I did not resist—listen Mr. Marquis, Mr. Dobbs was found guilty by the Texas Court of Criminal Appeals of suppressing exculpatory evidence.  The man that you‘re listening to is a liar, is a known liar, has been found guilty of lying. 

UNIDENTIFIED MALE:  He didn‘t resist it.

COOK:  I‘ll tell you I did agree.  Listen, when the DNA...

UNIDENTIFIED MALE:  What is your record, Mr. Cook, before this? 

COOK:  Wait.  Court records show, Mr. Marquis, when the DNA was found, when Mr. Dobbs, the very first opportunity he stood in open court and talked about, Your Honor, we have startling evidence.  There‘s been DNA found.  I stood up in open court and the court records will support this—you should get your facts straight, Mr. Marquis, before you spew lies and deceit. 

I said that I would take—I would voluntarily take a blood test.  They got my lawyer in—despite being us being under a gag order—they got my attorney Cheryl Watley in—on a phone conference before the judge had the “Dallas Morning News”, a reporter named Pete Slover in there and David Dobbs in front of Pete Slover was able to say that Mr. Cook is resisting giving DNA despite that court record saying I volunteered because I knew it would not be mine. 

ABRAMS:  All right...

(CROSSTALK)

UNIDENTIFIED MALE:  Wait a second.

(CROSSTALK)

SCHECK:  Wait a second.  I just have to make one point clear...

ABRAMS:  Very quickly, Barry.  Barry...

SCHECK:  ... very quickly.  There was semen found in the underwear of the victim. 

ABRAMS:  Right. 

SCHECK:  The individual at issue...

ABRAMS:  Right.

SCHECK:  ... had supposedly stopped having an affair and told the prosecutors he hadn‘t had sex with her. 

ABRAMS:  Right.  But the question was...

SCHECK:  ... semen...

ABRAMS:  ... the question was...

UNIDENTIFIED MALE:  Barry, when have you been able to...

(CROSSTALK)

SCHECK:  ... semen in the underwear...

ABRAMS:  The question was the timing of the semen. 

SCHECK:  Yes, but...

ABRAMS:  When was it left there?  It is unclear.  All right...

SCHECK:  No, wait a second...

ABRAMS:  I got to...

(CROSSTALK)

ABRAMS:  Barry, we‘re not going to get to the other topic...

SCHECK:  Dan, that is ignorance.  It‘s not unclear...

ABRAMS:  Well, all right...

SCHECK:  There is drainage in the underwear. 

ABRAMS:  All right.

SCHECK:  The prosecution took the position for years...

ABRAMS:  Josh...

SCHECK:  ... that the donor of that semen...

(CROSSTALK)

ABRAMS:  Hang on.  I got to take a break here.  We‘re going to come back and I have to say I think that Mr. Cook defended himself as well as even Barry Scheck could have.  Mr. Cook, if everyone could just stand by and I apologize to Ms. Skolnick because we‘re going to talk about your case.  Whew—coming up after this break. 

(COMMERCIAL BREAK)

(NEWS BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Now you—people that don‘t believe, well, you could say that I was like Dumbo and I just put this feather in my nose and then I flew because I could fly anyway.  Well, you could say there is really something out there, and that if we have faith in it and we appeal to it, it will answer us. 

(END VIDEO CLIP)

ABRAMS:  Susan Sarandon playing Sonia Jacobs there in a new Court TV movie that‘s coming out called “The Exonerated” and the question is was Sonia Jacobs actually innocent?  Josh Marquis, lay out, if you can, very quickly the case for why you think it‘s not so certain Sonia Jacobs is innocent. 

MARQUIS:  Well, her case is even more egregious than Mr. Cook‘s.  Sonia Jacobs murdered Trooper Phillip Black and Donald Irwin on February 20, 1976 at a rest stop off I-95.  She was found guilty.  She never testified at her own trial.  Sentenced to death.  That sentence of death was overturned.  She spent the next 12 years in general population. 

ABRAMS:  What is the evidence? 

MARQUIS:  The evidence is that the shells that killed the troopers were found inside the car that were occupied only by Jacobs and her two children.  The guns that killed the troopers were purchased by Jacobs.  This is her statement to police that night in which she admits that the guns were all hers and that night she claims that she had no idea who these other two men were.  One was her husband, Jesse Tafero, who ended up being executed.  Sonia Jacobs is now living in Ireland.  Her current boyfriend is someone who was convicted of killing an Irish police officer and then let off Ireland‘s death row. 

ABRAMS:  All right.  Holly Skolnick, attorney for Sonia Jacobs, lot of questions in particular about this case.  Your response. 

HOLLY SKOLNICK, SONIA JACOBS‘ ATTORNEY:  Well Mr. Marquis is just simply wrong about the facts.  Sonia Jacobs is factually innocent.  She always maintained her innocence and there‘s overwhelming evidence of that innocence.  In fact, if you actually look at the physical evidence, at the ballistics evidence, they point in only one direction.  And that is there was one shooter of the two police officers, and the person who shot those police officers was Walter Rhodes, the man who made a deal with the state of Florida in order to save his own life by implicating Sonia Jacobs and Jesse Tafero...

ABRAMS:  What about the shell casings found near her window in the car?

UNIDENTIFIED MALE:  Inside the car.

SKOLNICK:  There were ballistics tests and those tests came back as inconclusive.  There was no evidence, no testimony whatsoever that those shells came from within the car.  Mr. Marquis is just wrong.  In fact, the evidence was consistent with only—only consistent with Mr. Rhodes having fired those shots from outside the car.  And in fact, Mr. Rhodes was the only person who it was found to have from a paraffin test on his hands was found to have been a shooter of one of the guns. 

ABRAMS:  Josh, a quick response, then I got to ask Barry...

MARQUIS:  Well, paraffin tests are so unreliable they‘re not even used anymore in this country by law enforcement.  But more importantly, Sonia Jacobs lied to the police consistently.  She told them she was kidnapped.  She had no idea who these guys were.  She‘s the one who owned the guns.  She had a substantial criminal record before this, and most importantly, since we are talking about innocence, she pled guilty under an Alfred plea.  And when asked the question, have you been convicted of a crime, she has to legally answer yes, two counts of murder in the second degree. 

ABRAMS:  All right, very quickly, Ms. Skolnick. 

SKOLNICK:  Well, she has been convicted, but you need to understand the circumstances of that conviction.  Her conviction for murder had been overturned by the 11th Circuit Court of Appeals...

UNIDENTIFIED MALE:  Right.

SKOLNICK:  ... because of prosecutorial misconduct and constitutional violations.  We believe that the evidence of her innocence was overwhelming.  On the other hand, the prosecutor wanted to retry her...

ABRAMS:  Well and that‘s what I want to...

SKOLNICK:  The system is not perfect. 

ABRAMS:  That‘s what I want to—Barry, I am out of time here, but let me just ask you a general question about the Innocence Project.  Is it equal to you, prosecutorial misconduct as actual innocence?  Do those things...

(CROSSTALK)

ABRAMS:  You distinguish between the two, right? 

SCHECK:  Well, of course.  The technical definition of an exoneration if your go to our Web site—you ought to hear Josh Marquis attacking the 154 post conviction DNA exonerations. 

(CROSSTALK)

SCHECK:  That‘s where the indictment—that is where the case—the conviction has been vacated...

ABRAMS:  Yes.

SCHECK:  ... and they—there is either a pardon by the governor or they don‘t proceed before.  But you know, Dan, I can‘t let something pass here. 

ABRAMS:  Quickly, Barry, I‘m out of time. 

SCHECK:  Very quickly.  You talked about the semen in the underwear in the Kerry Max Cook case of the victim that came back to the professor who had a motive to kill her who said he hadn‘t had sex with her, who the prosecutor for years had said the donor of that semen in the underwear is the murderer.  Now, you talk about not dating semen...

(CROSSTALK)

SCHECK:  ... every day in this country prosecutors go into court and say drainage from—where semen...

ABRAMS:  Right.

SCHECK:  ... comes from the underwear, that is a strong inference...

(CROSSTALK)

SCHECK:  ... that that person is the last semen donor.  You use it every day, Josh Marquis...

(CROSSTALK)

SCHECK:  ... Kerry Max Cook case...

UNIDENTIFIED MALE:  ... Barry...

SCHECK:  ... you turn around and say it doesn‘t matter. 

MARQUIS:  Tell them about Kerry...

SCHECK:  You know, something, Josh Marquis, you are only diverting, is really...

(CROSSTALK)

SCHECK:  ... you have no shame to take a man like...

MARQUIS:  He‘s talking about a client of his...

SCHECK:  ... Kerry Max Cook and drag him through...

MARQUIS:  ... committed the crime after he was exonerated...

SCHECK:  ... the mud with misrepresentations like this. 

ABRAMS:  The bottom line...

SCHECK:  You have no shame.  He suffered too much. 

ABRAMS:  All right. 

SCHECK:  Stop this.  You have no shame, sir. 

ABRAMS:  All right.  Josh Marquis and...

MARQUIS:  Thank you for having me. 

ABRAMS:  ... Barry Scheck, it‘s always...

SCHECK:  No shame. 

ABRAMS:  All right.  It‘s good to see both you guys. 

SCHECK:  No shame. 

ABRAMS:  Holly Skolnick and Kerry Max Cook...

(CROSSTALK)

ABRAMS:  ... thank you very much as well.  I appreciate it. 

Coming up, Amber Frey met Scott Peterson a wounded woman.  She had been let down by a lot of men before.  Seems she‘s been let down again.  It‘s my “Closing Argument”. 

(COMMERCIAL BREAK)

ABRAMS:  Last night we talked to the man who wrote a company policy that forces all workers to quit smoking or quit their jobs.  Lots of you wrote in, coming up.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—am I the only one that feels sorry for Amber Frey?  I read yesterday she‘s battling for custody of her new baby with a boyfriend who supported her throughout the Peterson trial.  It seems just another failed relationship for Amber.  Remember, she met Peterson, already a wounded woman, let down by various men.  Then she met him.  With his sweet talk and nurturing demeanor, he lured her into his life of lies.  She eventually became suspicious, learned that he‘s the Scott Peterson, the one with a missing wife in Modesto.  Not only was her boyfriend a liar and a cheater, but suddenly she was tabloid fodder.  Her every move scrutinized by the world, her being a punch line for late night comedians. 

I was hoping she was finally happy.  That she might finally be able to put this episode behind her, move on with her new boyfriend and second child, but no such luck.  I know a lot of you are going to write in bashing her as you often do, but I feel bad for her and fear she‘ll never be able to get her life back on track.  That while Scott Peterson may be out of her life, he may always come to define it.  She‘s made some mistakes.  She doesn‘t deserve this.  I say good luck, Amber. 

Coming up in 60 seconds, it‘s an old clich’.  We‘ve got a story that proves why men really shouldn‘t stop and ask for directions.  It‘s our “OH PLEAs!”... 

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say, time for “Your Rebuttal”.  Last night, a Michigan healthcare company under fire for implementing a no smoking policy even after work.  The company‘s founder said he is tired of paying exorbitant healthcare costs for his employees who are smokers.  He even paid for a treatment program for employees who wanted to quit.  I said I don‘t see how it is any different than telling people how to eat at home. 

Plenty of e-mails.  Irving Bell, Cleveland, Ohio.  “A private employer has and should have the right to hire and fire at will.  Such an employer is not saying that you can‘t smoke at home, as you suggested.  The employer is saying rather you can smoke anywhere you like.  You just can‘t work here if you smoke anywhere.”

Irving, that is a distinction without a difference.  Thank you for clarifying that a company where you do not work cannot tell you what not to do.  I also asked if people who drink alcohol, fail to practice safe sex, or eat too much, fast food is the next target. 

Sherre Slaw says there‘s a difference.  “The difference between smokers and over eaters or non-safe sexers is that the latter don‘t come into the office stinking of stale cigarettes.  Even if they smoke on their own time, they stink while in the office.”

How do I say this without being totally gross or inappropriate Sherre?  Let‘s just say if you‘re eating greasy food every day, you and your workspace will probably stink worse than stale cigarettes.  As for the non-safe sex, I‘ll just leave that one to your imagination. 

Scott Palmisano, North Carolina.  “If you want to raise the premiums of smokers, then fine.  But telling me I can‘t have a smoke after a hard day at work in the privacy of my own home is like MickeyD‘s getting sued for making people fat.  Utterly ridiculous.”

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

“OH PLEAs!”—note to perspective robbers.  Try not to return to the scene of the crime and ask for favors.  Jared Persitz and Matthew Barela from Vancouver decided allegedly to rob a Chevron gas station in (UNINTELLIGIBLE) Washington.  Persitz confronted the female clerk with a knife in hand, demanded money.

The second clerk quickly dialed 911.  The duo grabbed some edible goodies, made a quick getaway.  They got scared.  It seems the dimwits may have maxed out on Twinkies.  Ninety minutes later, it seems the dynamic duo got lost, I mean like really lost, like driving in circles loss. 

They actually returned to the Chevron station to ask for directions and to buy a map.  After a high-speed chase, they were arrested.  Not only will they be voted into the criminals‘ hall of shame, but by asking for directions, some in the slammer might question their manhood as well. 

That does it for tonight.  Thanks for watching.  “HARDBALL” is up next.

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

END   

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