updated 2/8/2005 3:51:24 PM ET 2005-02-08T20:51:24

Guest: Kevin Byrnes, Elaine Donnelly, Rick Zwayer, Greg Ogden, Mercedes Colwin, Bob Jensen, Michael Wolff

DAN ABRAMS, HOST:  Coming up, a mud wrestling party at a detention center in Iraq caught on camera.  Servicemen and women are being disciplined. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  The pictures look like a scene out of the movie “Animal House”, service women slinging mud in their bras and underwear.  But will the punishment be harsher because it was women?  And is it really that big a deal that some hardworking soldiers wanted to blow off some steam? 

And a state Supreme Court judge pulled over for drink driving caught on tape.  She fails a Breathalyzer and urges police to go easy because she‘d ruled in their favor in other cases.  She pled guilty but now gets to remain on the bench. 

Plus, Michael Jackson is speaking out but only to one person, Geraldo Rivera, who admits he thinks Jackson is innocent.  Many are coming after Geraldo for sucking up to Jackson, but isn‘t there something refreshing about a media figure willing to admit his opinion rather than faking objectivity? 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, this isn‘t about abuse at Abu Ghraib.  It‘s about party time at the Army‘s Camp Bucca prison that apparently got out of hand when, according to an Army spokesman -- quote—“Some individuals in their exuberance decided to put together a mud wrestling thing.  There were females and some members of the 105th also became involved, one female soldier in particular. 

And that soldier, 19-year-old Policewoman Deanna Allen, has been punished by the Army for indecent exposure, demoted from specialist to Private First Class and placed on restriction.  But she wasn‘t the only woman taking part, as you can see, not to mention all the men who stopped by to watch and cheer the women on.  Others may be disciplined already and the Army insists an investigation is underway.  Those pictures were leaked to the “New York Daily News”. 

“My Take”—OK, look, I‘m not over there.  I don‘t know what else happened that dark night at Camp Bucca besides what the reports say and the pictures show.  But I don‘t think soldiers in combat, teenagers in many cases like Deanna Allen shouldn‘t be able to blow off some steam.  Is it really that big a deal?  Now if direct violation of orders was involved, if there was any coercion, sex between soldiers, drinking, that needs to be investigated.  But—and it is.  But I have to wonder if those pictures just showed men in their shorts, slinging some mud, would anyone really care? 

Kevin Byrnes served as a JAG when he was a lieutenant in the Navy.  He‘s now a criminal defense attorney.  And Elaine Donnelly is president of the Center for Military Readiness, who served on the Presidential Commission on the assignment of women in the armed forces under President George H. W. Bush.

Thanks both for coming on the program.  All right.  Lieutenant Byrnes, look, let‘s put aside the possibility of drinking or other, you know, obvious violations.  From what I understand they are continuing to investigate that, but there is no clarity as to whether any of that was going on.  Let‘s assume for a moment that there‘s not any evidence of that and what we‘re talking about is this effectively a party with mud wrestling.  Do you agree with me that they are coming down harder because it‘s women mud wrestling as opposed to men?

LT. KEVIN BYRNES (RET.), FORMER NAVY JAG:  Yes, I think so.  I think that in reality what‘s going on here is the military continues to struggle with the idea of having women in the armed forces and where they play, particularly in combat areas.  While it could be embarrassing to the women involved in some sense or embarrassing to the military in a larger sense, I don‘t think that this is really an incident that requires anything more than a commander maybe coming forward and saying, look, this is inappropriate behavior, please don‘t let it happen again. 

I mean after all we are expecting a lot from these people.  We expect them to, you know, build a democracy, fight terrorism, take care of people, to guard prisoners.  This is an intense job.  There are people being killed over there.  There are things happening.  Bombs are exploding, guts are being spilled, and we are getting upset that a couple of female soldiers engage in a wrestling contest that may have exposed someone‘s breast.  I really don‘t think that‘s the type of thing that requires the sort of, frankly, even though I‘m on your show, the national attention that it is getting, and I agree with you wholeheartedly that this is really—unless there is some other incident of misbehavior, this is the sound (UNINTELLIGIBLE) signifying nothing. 

ABRAMS:  And my understanding, Ms. Donnelly, is also that there was no concern that the soldiers were anywhere nearby where they could see this happening, et cetera, so what is the big deal? 

ELAINE DONNELLY, CENTER FOR MILITARY READINESS:  Oh, both of you are missing the point here.  This is an example of indiscipline.  It‘s the kind of thing that leads to more serious forms of indiscipline.  If this is no big deal then don‘t talk to me about Tailhook scandals, Aberdeen, even Abu Ghraib started because...

ABRAMS:  Oh come on...

DONNELLY:  ... of a lack of discipline. 

ABRAMS:  Come on.  Wait a sec...

(CROSSTALK)

ABRAMS:  ... those are sexual assault cases...

BYRNES:  Right...

ABRAMS:  ... or torture cases.  You‘re going to compare...

DONNELLY:  Excuse me...

ABRAMS:  ... mud wrestling to that.

DONNELLY:  ... let me—please let me finish my point.  The military is not “Animal House”, OK.  You have to have discipline.  You have young people who are giving weapons and power over other people.  They have to be taught to have discipline behavior.  The NCOs involved, the sergeant who tolerated this, according to the articles I have read, there was alcohol involved...

ABRAMS:  We don‘t know that yet...

DONNELLY:  There was a room involving...

ABRAMS:  I just want to be clear...

DONNELLY:  ... that was available for sexual activity.

ABRAMS:  Right, there were allegations someone—but my understanding is that that may not turn out to be true.  We‘ll see.  I mean if it is...

DONNELLY:  Listen, men...

ABRAMS:  ... that‘s a different story...

DONNELLY:  ... men do not mud wrestle.  Women mud wrestle in their underwear is a sexual turn on...

ABRAMS:  Oh, so you agree...

DONNELLY:  I mean let‘s not be naive about this.

ABRAMS:  ... then right, that if you saw two men...

DONNELLY:  You can‘t...

ABRAMS:  ... let‘s be clear. 

DONNELLY:  You can‘t have...

ABRAMS:  If it was men mud wrestling, you wouldn‘t be concerned, right?

DONNELLY:  Men wrestle for athletic reasons...

ABRAMS:  Oh, that‘s it, OK...

DONNELLY:  A woman who mud wrestles in her underwear is involved in a sexual turn on...

ABRAMS:  Right, so at least we‘re being clear...

DONNELLY:  So why did the sergeants allow that behavior to continue? 

My concern is what else is going on...

ABRAMS:  Right.

DONNELLY:  ... not only in that Camp Bucca, but everywhere, where you allow co-ed basic training.  Where are all these sensitivity training classes that the soldiers...

ABRAMS:  Yes.

DONNELLY:  ... are supposed to be getting...

ABRAMS:  Yes, see...

DONNELLY:  Why are they behaving like “Animal House”?  Obviously something serious...

ABRAMS:  Lieutenant Byrnes, see this is my concern, is that...

BYRNES:  Yes...

ABRAMS:  ... people like Elaine Donnelly just simply don‘t like it because it‘s women involved in blowing off some steam...

DONNELLY:  Look...

ABRAMS:  ... as opposed to men. 

DONNELLY:  ... men and women...

BYRNES:  If I can answer the question.  I think that the reality of this is that there is a gradation that is a big difference between the humiliation of torture to prisoners at Abu Ghraib and two women consensually engaging in wrestling in a mud pit is nowhere near that level of indiscipline and I think that frankly—I mean I look at this way.  If we had disciplined every soldier that landed on D-Day for getting drunk and letting off steam, nobody would have been able to march over to Berlin by the end of the war...

DONNELLY:  Look...

BYRNES:  It is a—it is an argument to the absurd to suggest that somehow...

DONNELLY:  Look...

BYRNES:  ... people engaging in consensual behavior that is maybe seem to us a little silly, it‘s the same thing as indiscipline...

DONNELLY:  Excuse me...

BYRNES:  ... that would ruin the military. 

DONNELLY:  Excuse me, no one said that this mud wrestling was the same as the abuse of prisoners at Abu Ghraib, so I‘ll thank you not to put words in my mouth. 

BYRNES:  I didn‘t ma‘am...

DONNELLY:  What I am saying is...

BYRNES:  You did.

DONNELLY:  ... indiscipline leads to other forms of indiscipline.  The M.P.s at Abu Ghraib were also involved in sexual high jinx.  Nobody disciplined then and then everybody threw up their hands and wondered how could this happen...

(CROSSTALK)

DONNELLY:  Maybe it starts with...

(CROSSTALK)

ABRAMS:  Ms. Donnelly...

(CROSSTALK)

ABRAMS:  Hang on.  Let me ask Ms. Donnelly...

(CROSSTALK)

ABRAMS:  ... are you willing...

(CROSSTALK)

ABRAMS:  ... are you willing to cut our troops any slack because they are in a very difficult situation and as a result, say sometimes things are going to happen?  Let‘s assume again for a moment that we‘re just talking about the wrestling.

DONNELLY:  Are you saying that “Animal House” behavior is OK on an Army base... 

ABRAMS:  That at times...

DONNELLY:  ... in Iraq?

ABRAMS:  ... we are—look, I would rather say that than have people who are going over there and risking their lives come home here and be chastised and be embarrassed and be humiliated because of some silly little mistake and then have people like you comparing them, leading down the road to Abu Ghraib...

DONNELLY:  And yet the same people who would say what you just said, when something happens at say the Air Force Academy or in the Army...

ABRAMS:  Again, you are making the comparison again...

DONNELLY:  ... when we know that consensual behavior involving alcohol leads to allegations of rape.  All of a sudden they‘re so surprised and they‘re so shocked...

ABRAMS:  And then you get angry at Lieutenant Byrnes for saying that you compared it to Abu Ghraib and to Tailhook again.  You are making the comparison. 

DONNELLY:  You know, what I‘m saying is consistent.  It‘s a pattern of misbehavior.  It‘s a pattern of indiscipline being tolerated by NCOs and by their commanding officers. 

(CROSSTALK)

DONNELLY:  I‘m being perfectly consistent in what I am saying. 

ABRAMS:  Let me...

DONNELLY:  How many little incidents like this do we have to tolerate?

ABRAMS:  Let me read from the soldier‘s mother—this is number two here.  It was just a thing where she was coerced by a bunch of bunch of people and with all the excitement, she lost her sanity for a moment. 

That‘s all it took.  You know, who knows if it was coercion or not

DONNELLY:  You know, it‘s just too bad somebody took a picture of it. 

You know...

ABRAMS:  Yes, let me...

DONNELLY:  This might have been...

ABRAMS:  Let me...

DONNELLY:  ... whether a picture was taken or not...

ABRAMS:  Let me let Lieutenant Byrnes respond...

DONNELLY:  ... should be the subject of discipline...

BYRNES:  I think, again, the difficulty here is she is comparing incidents of rape, non consensual sexual activity that is forced on an individual with what is in essence by her own definition, sort of a college prank.  And to some extent we need to allow young people to engage in college pranks.  We don‘t ruin people‘s lives and careers because they engage in silly behavior.  We have a president who wasn‘t exactly—that she worked for—that had his problems in college and he‘s now president.  People can recover and do better and this...

DONNELLY:  Yes...

BYRNES:  ... and this is a silly thing to do...

DONNELLY:  You know, running around in your underwear...

BYRNES:  ... to drag this...

(CROSSTALK)

BYRNES:  Excuse me ma‘am...

ABRAMS:  Hang on.

(CROSSTALK)

ABRAMS:  Let him finish...

(CROSSTALK)

ABRAMS:  I‘ll give you the final word...

(CROSSTALK)

ABRAMS:  Ms. Donnelly, I‘ll give you the final...

(CROSSTALK)

ABRAMS:  Hang on.  Hang on.  I‘ll give you the final word Ms.

Donnelly.  Go ahead Lieutenant Byrnes.  Finish up.

BYRNES:  In reality what we have here is exactly what she says, but she‘s making the argument almost to the ridiculous.  This is college prank stuff.  It needs to be disciplined the way you do a college prank.  You tell them to stop doing it.

ABRAMS:  All right.  Ms. Donnelly gets the final word on this.

DONNELLY:  No, you don‘t treat the military like a college.  You don‘t tolerate “Animal House” behavior and if you do, then don‘t be surprised if much worse kinds of incidents happen.  How many sex scandals to we have to tolerate...

ABRAMS:  All right...

DONNELLY:  ... most of which started with seemingly innocent...

ABRAMS:  Yes...

DONNELLY:  ... incidents...

ABRAMS:  But I—again...

DONNELLY:  We have to stop this somewhere...

ABRAMS:  ... again the question becomes whether women mud wrestling is sex.  To you it is, to me it‘s saying, you know, two women...

DONNELLY:  When was last time you saw men mud wrestling? 

ABRAMS:  Look, the bottom line is...

DONNELLY:  Come on...

ABRAMS:  ... I haven‘t seen two women mud wrestling, either.  But the

·         but either way, it doesn‘t seem that different to me...

DONNELLY:  It is inappropriate behavior. 

(CROSSTALK)

DONNELLY:  The sergeant should not have tolerated it...

ABRAMS:  ... Lieutenant Byrnes...

DONNELLY:  ... and they shouldn‘t have tolerated the alcohol...

ABRAMS:  ... Elaine Donnelly...

DONNELLY:  ... and the...

ABRAMS:  Again, don‘t make allegations we don‘t know about yet.  We‘ll see about the other stuff.  Elaine Donnelly, thanks for coming on the program.  Lieutenant Byrnes, appreciate it as well.

BYRNES:  Thank you. 

DONNELLY:  Thank you.

BYRNES:  Appreciate it.

ABRAMS:  Coming up, State Supreme Court justice who has probably heard lame excuses in the courtroom is caught using this excuse.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  ... You‘ve been drinking.  I know that.  I mean I smell some alcohol on you when I...

UNIDENTIFIED FEMALE:  Oh come on...

(END VIDEO CLIP)

ABRAMS:  She even argues with police that they should let her go because she is usually harsh, usually on the police‘s side.  She pled guilty and is now expected to remain on the state‘s highest court.  (UNINTELLIGIBLE)

And a kid in Michigan decided to go joyriding in his mother‘s car.  He crashed into a few parked cars and backed into a police car.  Authorities aren‘t going to charge him.  Why not—because he‘s four.

Plus, Michael Jackson goes on TV to talk to Geraldo about his case and about his life.  The interview wasn‘t exactly tough questions, but Geraldo is an outspoken Jackson supporter.  Is that a conflict or just honest?  We debate.

And 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, a Supreme Court justice ended up on the wrong side of the bench in Ohio, caught drunk driving, apparently thought the police might let her off because she usually sides with the police.  She pled guilty and heads back to work on the state‘s highest court.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  We‘re back.  In Ohio, Supreme Court justice on the other side of the bench this afternoon facing drunk driving charges.  Justice Alice Robie Resnick pleaded guilty and was sentenced to three days in an alcohol treatment program, lost her driver‘s license for six months and has been fined $600.  Her run-in with the law caught on tape.  Beth Dal Ponte of our Columbus station WCMH has the story. 

(BEGIN VIDEOTAPE)

BETH DAL PONTE, WCMH REPORTER (voice-over):  A week ago today, a Bowling Green patrolman and state trooper first approached Ohio Supreme Court Justice Alice Robie Resnick at a gas station after several motorists had called 911 to report an erratic driver.  Resnick drove on and was later pulled over by the Ohio State Highway Patrol along I-75.  Their conversation recorded by the trooper‘s dash (UNINTELLIGIBLE).

TROOPER:  ... the yellow line and back and forth. 

ALICE ROBIE RESNICK, SUPREME COURT JUSTICE, OHIO:  No, I didn‘t. 

TROOPER:  OK.

DAL PONTE:  Resnick denied that she had been drinking. 

RESNICK:  There‘s nothing wrong with me. 

TROOPER:  OK.  Let me...

(CROSSTALK)

TROOPER:  You‘ve been drinking.  I know that.  I mean I smell some alcohol on you when I...

RESNICK:  (UNINTELLIGIBLE) I have not been drinking.  You know you‘re really infringing on my—OK.  I‘m not going to argue.

DAL PONTE:  Resnick later admitted to drinking some wine and agreed to take a portable alcohol test.  Troopers say she registered at more than twice the blood alcohol legal limit. 

RESNICK:  I don‘t believe that 2016.  That‘s ridiculous. 

TROOPER:  OK.  That is high. 

RESNICK:  Because I haven‘t, you know, that is really high.  I mean I would have to - I don‘t know what I would have to consume.

(CROSSTALK)

RESNICK:  I‘ve always said that a Supreme Court justice should have a highway patrolman driving them.

(LAUGHTER)

RESNICK:  Well the U.S. Supreme Court justices do—you know I mean this is so embarrassing to me.  I‘m just dying.

DAL PONTE:  Judge Resnick also alluded to other cases she‘s had to rule on. 

RESNICK:  I decide all these cases...

TROOPER:  Right.

RESNICK:  ... in your favor...

TROOPER:  Right.

RESNICK:  ... my golly and look at what you‘re doing to me.

DAL PONTE:  Beth Dal Ponte, NBC News, Columbus, Ohio.

(END VIDEOTAPE)

ABRAMS:  “My Take”—not only has she now pled guilty to two misdemeanors, more importantly she made statements drunk or not, which suggest the police should treat her differently because of who she is.  Not to mention the fact that it seems she refused to take the official Breathalyzer test and she remains on Ohio‘s highest court.

Joining me now is Lieutenant Rick Zwayer with the Ohio State Patrol and Greg Ogden, legal ethics and judicial ethics professor at Pepperdine University.  Gentlemen thanks for joining us.  Lieutenant, let me start with you.  Do we have this right that she agreed to take one of these portable breathalyzers but then refused to take the formal one? 

LT. RICK ZWAYER, OH STATE HIGHWAY PATROL:  Yes, sir, that‘s right. 

ABRAMS:  And how does that work?  I mean the portable one is something that they have in their cars with them, but the official, formal one would be what, back at the station? 

ZWAYER:  Right.  The portable breath-testing equipment is a tool that our troopers use to help them determine whether somebody is under the influence or not at the scene.  And we also have equipment that is certified and calibrated under the Department of Health rules and regulations that is officially used as evidence in the court of law and that equipment is located at a police station or a patrol post.

ABRAMS:  Do I have it right that on the portable one, she blew almost three times the legal limit?

ZWAYER:  Right.  The portable breath testing equipment was used and Justice Resnick did blow into that machine and tested .216 on that machine.

ABRAMS:  Got to say your officers handled this pretty well based on what I saw in that videotape.  They seem very calm and they seem to respond in a pretty professional way. 

ZWAYER:  Well it‘s something that our officers are expected to do.  It‘s a classic case of what our troopers do every day.  We make some 25,000 OVI (ph) arrests a year and it‘s another example of the professional behavior...

ABRAMS:  All right, well...

ZWAYER:  ... exhibited by our officers.

ABRAMS:  They deserve credit there on that.  Mr. Ogden, let me ask you.  I don‘t get it.  So in Ohio, you have to have committed a felony to be automatically suspended from the bench.  But I‘m not concerned about just the fact that we‘re talking about crimes here.  This is someone who you hear on an audiotape saying well, you know, the way I voted in these cases, I always side with the police and she gets to go back and be on bench again? 

GREG OGDEN, PEPPERDINE UNIV. PROFESSOR (via phone):  Well, there are a couple of points you want to make here.  Canon 2 (ph) are the AVA (ph) model code of judicial conduct requires judges to respect and comply with the law and to act at all times in a matter which promotes public confidence in the integrity and partiality of the judiciary. 

ABRAMS:  Yes.

OGDEN:  This applies not only to their conduct on the bench or their professional conduct, but their personal conduct as a judge.  So in terms of judicial ethics, her conduct falls below the standard.  The other thing here is that most judicial ethics commissions have a range of discipline that they apply to judges and the most severe discipline is permanent removal of a judge from the bench.  And most judicial ethics commissions won‘t take that step without conduct that‘s more outrageous than in this case. 

ABRAMS:  So bottom line, you think that based on what you‘ve seen, she ordinarily would not get taken off the bench permanently, but a suspension or something like that might be appropriate? 

OGDEN:  Or under—in California, they have something called public censure...

ABRAMS:  (UNINTELLIGIBLE)

OGDEN:  ... where this is published and an opinion and the judge‘s reputation suffers. 

ABRAMS:  Yes.

OGDEN:  We had a case out here in California involved a Superior Court judge who actually sentenced drunk drivers and it took two convictions on his part for drunk driving...

ABRAMS:  Yes.

OGDEN:  ... for him to be removed from the bench.

ABRAMS:  I‘m going to be clear on this.  I am not saying just because of the misdemeanor that that‘s the problem.  What I heard on that tape to me is the problem with what happened in this particular case.  I got to wrap it up.  Lieutenant Zwayer, Professor Ogden, thanks a lot.  Appreciate it.

OGDEN:  You‘re welcome.

ZWAYER:  Thank you.

ABRAMS:  Coming up, jurors find ex-priest Michael—Paul Shanley—second time—even though the case was based on only one witness who had repressed memories of the abuse. 

Plus, everybody is coming out against Geraldo for not asking Michael Jackson any tough questions in his interview this weekend.  While that may be true, isn‘t it refreshing to hear from a news anchor willing to express his opinion overtly rather than sneaking it in.  We debate, coming up. 

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  Everyday we got so many stories we want to cover we just don‘t have the time, we got a new segment called “Just One Question”.  We lay out three legal stories and ask our guest just one question about each case.  Joining me now, criminal defense attorney Mercedes Colwin.

All right, Mercedes, our first story.  This afternoon a jury found ex-priest Paul Shanley guilty of molesting a young boy in the ‘80‘s.  Shanley had faced a civil trial a few years ago.  Several witnesses came forward, talked about how he had abused them.  Many others said Shanley molested them but the statute of limitations had expired.  So only one witness testified in the criminal trial.  The testimony was based solely on repressed memories.  “Just One Question”—are you surprised the jury found enough evidence to convict?  I was afraid he‘d walk. 

MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY:  You know, I thought we were going to talk about mud wrestling.  But no—seriously though, Dan, not at all.  There is such a rush to judgment with any of the priests that are being accused and it‘s really unfortunate.  I used to represent the archdiocese many years ago and a lot of these sex abuse cases used to be settled under the radar screen quietly, goes away and gets resolved. 

ABRAMS:  Yes.

COLWIN:  But now the media has picked it up.  There‘s efficacy groups.  There are a lot of folks that are coming forward with this.  I wasn‘t at all surprised. 

ABRAMS:  Yes, this is not a guy who deserves our sympathy, though...

COLWIN:  No, not at all...

ABRAMS:  ... big scheme of things.  All right, 4-year-old boy, yes, 4-year-old boy in Michigan got into mom‘s car in the middle of the night on Friday and decided to drive to a nearby video store.  When he got there and found the store closed, he tried to turn back to drive home -- 4 years old.  A police officer spotted the car but couldn‘t see anyone in the front seat, followed the car and watched the boy hit several parked cars before backing into the officer‘s car.  Police say they are not going to charge the little boy or his mother, so the question, who pays for the damage? 

COLWIN:  Mom and dad lock up those keys and those cars and hide them.  That‘s the moral of the story.  It‘s going to be the mother.  I mean most states have this—what‘s called permissive statute.  That if someone is driving your car and they are in your family they are presumed to have the permission to drive the car, even a 4-yar-old.  Why didn‘t you lock away the keys?  The mother is going to pay under the policy.

ABRAMS:  Unbelievable.  Britney Spears—issue three—cancelled several of her concert appearances last year after injuring her knee.  Several insurance companies refusing to cover her losses.  She‘s now suing them for almost 10 million.  The insurance companies say on a routine pre-tour questionnaire, Spears checked no when asked if she had any preexisting injuries, even though she had minor knee surgery five years earlier.  Britney claims she forgot about the surgery, so the question, will the insurance companies have to pay? 

COLWIN:  I thought it were her naval piercings that were at issue, Dan.  I was kind of surprised that it was actually her knee.  No, they will not have to pay.  Each policy is a stand-alone contract.  It you have omitted whether she forgot, didn‘t forget, she just rushed through it and signed it, it‘s a stand-alone contract.  It stands for what it is.  They will not...

ABRAMS:  Even if it was minor?  Even though the surgery was minor?

COLWIN:  Even though it was minor, I mean but obviously, the result was pretty catastrophic because most of her tour was cancelled as a result. 

ABRAMS:  Yes.

COLWIN:  They are going to rely on that policy.  Any insurer that‘s going to work with these insurers, they have to put in all the facts...

ABRAMS:  Mercedes...

COLWIN:  ... the contract.

ABRAMS:  ... one of our favorites, thanks a lot. 

COLWIN:  Thank you, Dan. 

ABRAMS:  Appreciate it.  Coming up...

COLWIN:  Have a great day.

ABRAMS:  ... Michael Jackson speaking out but only to one person who admits he thinks he‘s innocent.  But is my pal Geraldo Rivera improperly sucking up to Jackson or is it just a good thing that he‘s honest about his bias?  We debate up next.

Plus, residents of West Hollywood who were planning on making over their pets with a little plastic surgery may be out of luck.  Our “OH PLEAs!” story is coming up.

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:  Geraldo Rivera‘s exclusive interview with Michael Jackson, does it matter that he‘s an outright Jackson supporter?  First the headlines. 

(NEWS BREAK)

ABRAMS:  We‘re back.  Michael Jackson‘s trial off to a slow start.  A delay in jury selection.  Doesn‘t mean that people have stopped talking about it entirely, especially after FOX News aired Geraldo Rivera‘s interview with Jackson this weekend.  Here‘s what Geraldo had to say at the beginning of the show.

(BEGIN VIDEO CLIP)

GERALDO RIVERA, FOX NEWS, “AT LARGE WITH GERALDO”:  After investigating the attacks and circumstances in this case, I have made no secret of my feelings, however unpopular.  It is my constitutionally protected opinion that Michael Jackson is not guilty of these charges and I have said so often and in no uncertain terms. 

(END VIDEO CLIP)

ABRAMS:  The judge OK‘d the interview before the start of the trial to allow them to rebut another report detailing leaked secret grand jury testimony.  The difference is in that ABC report they never expressed an opinion as to whether Jackson is guilty.  The report actually repeatedly reminded viewers it was delivering a one-sided story—the grand jury‘s and arm of the prosecution. 

The witnesses aren‘t cross-examined.  That the defense attorneys aren‘t even present in the grand jury.  Well, Geraldo made it clear he thinks Michael Jackson is not guilty.  “My Take”—first, my bias.  I like Geraldo Rivera.  He gave me a shot early in my career.  I went to his wedding.

With that said, no question I don‘t think he would even deny this was a softball interview, an opportunity for Jackson and a friend Geraldo to get out Jackson‘s side of the story.  But so what?  Geraldo admitted his opinion at the outset.  That is so much more honest than the so-called journalists who claim to be fair and then sneak in their bias. 

I try to be straight with my viewers about my opinions.  And I think as long as Geraldo comes clean, viewers can take it for what it was.  Joining me now journalism professor at the University of Texas at Austin, Bob Jensen who thinks people like Geraldo are a problem for the media and columnist for “Vanity Fair” magazine Michael Wolff, who doesn‘t think there‘s anything - such a big deal about this.

All right, Professor Jensen, what‘s the problem? 

BOB JENSEN, UNIV. OF TEXAS JOURNALISM PROFESSOR:  Well first of all, before we even talk about Geraldo or report of conduct, I think we might ask why is the Michael Jackson story a story?  I think it says something and quite frankly something quite disturbing about the culture that anyone really cares about this...

ABRAMS:  Fair enough.  But that‘s a separate question.  OK...

JENSEN:  Yes, but it‘s an important one...

ABRAMS:  All right, but it‘s not one I want to talk about right now...

JENSEN:  ... because it means that—I think what we should think about Geraldo Rivera is first of all, is he a journalist?  I think that‘s the fundamental question. I think Geraldo Rivera long ago crossed over from being anything we could meaningfully call a journalist into some sort of carnival barker, entertainer on television and so, you know, do the rules of journalism even apply to Geraldo Rivera? 

I guess to the degree he puts himself and FOX puts himself forward, puts him forward as a journalist, he does have to abide by the rules.  The interview, though, wasn‘t journalism in any meaningful sense of the word.  It was simply giving Michael Jackson time to say whatever he wanted.  That‘s fine if you want to do that as a network, but I don‘t think we should call it journalism.  That is it‘s not an independent attempt to engage in newsgathering and present that meaningfully to the public. 

ABRAMS:  But Michael Wolff, isn‘t that sort of an old school view of the way, you know, these definitions of what is journalism and what is not journalism...

(CROSSTALK)

ABRAMS:  ... I mean Geraldo is being straight about what he is doing. 

MICHAEL WOLFF, “VANITY FAIR” COLUMNIST:  Absolutely, so let‘s not call it journalism.  Let‘s call it television storytelling.  Let‘s call it FOX News.  Let‘s call it anything we want to call it.  This is not a surprise to anyone.  No one is being fooled here.  No one is being lied to.  There are no misrepresentations going on.  It‘s television for better or worse. 

ABRAMS:  And Professor Jensen, see that‘s my concern.  My concern is -

·         I mean look, my opinion is also made quite clear on this program with regard to—you will probably say that I have crossed the line as well to no longer being a journalist.  But I have to tell you, I find that in this day and age when viewers are so distrustful of the media, that people actually appreciate being told at the outset, here‘s where I come down on this story.  And you now you can decide for yourself what you think of it, knowing what my bias is. 

JENSEN:  I actually agree with that and I think that there are other models of journalism beyond the so-called objective American journalism model that I would in fact endorse.  But I think when we talk about bias, we have to look beyond simple assertions of individual bias.  Remember, there are institutional biases as well. 

That is, you know, in some sense, this Michael Jackson story I actually agree doesn‘t really matter much.  Nobody really takes it as journalism.  It‘s all a kind of circus, the whole Michael Jackson story is a kind of circus for the, you know, for the masses in that sense.  But the question is would it be helpful if journalist, not only the journalists themselves, but the institutions then you could have, for instance, corporate owners who relay their bias, which is often a bias in favor of corporate culture and corporate profit, of course.  I think the whole system would be better off if viewers and readers knew not only the individual biases of journalists, but the structural biases of the whole institution. 

ABRAMS:  Here‘s—this is a little piece of Geraldo‘s interview with Michael Jackson. 

(BEGIN VIDEO CLIP)

RIVERA:  You know, it‘s wonderful seeing you with the children.  That, I think is the real Michael Jackson that has not been seen.  You with your own children.  One in diapers, the other two toddlers, I don‘t know how you manage without a nanny. 

MICHAEL JACKSON, ACCUSED OF CHILD MOLESTATION:  Well, I enjoy taking care of my children myself.  It‘s fun.  That‘s why I had them so I could take care of them and it‘s just—it‘s a great, great relief for me.  You know, it‘s pleasure.  It keeps me happy and laughing and they‘re wonderful, sweet, innocent children. 

(END VIDEO CLIP)

ABRAMS:  Would—Michael, would people be as sort of—those who are sort of getting so angry at Geraldo and FOX over this, would they be as angry if it weren‘t Geraldo?

WOLFF:  Or would they be that angry if it weren‘t Michael Jackson? 

ABRAMS:  Fair question. 

WOLFF:  I mean I think all of this is what would be the word, unseemly, I suppose.  And from, you know, I think that this kind of journalism school Miss Grundy attitude is not incorrect.  It‘s just not very helpful.  The world is as it is.  This is television.  It has been television for—well, now, several generations.  Does it get worse?  I‘m sure it does get worse.  But I don‘t think this idea of journalism as a religion is very helpful to anyone. 

ABRAMS:  And does FOX, Professor Jensen, have it take—you were saying that because FOX News is putting him out there as a journalist, why can‘t FOX News say yes look, we‘ve got Geraldo out there, is clearly a Jackson supporter and yet, you know, you listen to the analysis of X Y or Z person on our air also, well they‘re not.  And as a result, we‘re offering a bunch of different voices and as long as we‘re telling you where they‘re coming from, you can‘t sort of stick it on FOX for being unfair. 

JENSEN:  Well, you can stick FOX on a lot of things.  For instance, purporting to be fair and balanced.  In fact, much of the FOX marketing technique is about claiming to be neutral and...

(CROSSTALK)

JENSEN:  ... which is frankly a joke...

(CROSSTALK)

WOLFF:  It‘s not really.  Actually the marketing technique is to make fun of that and that‘s the wink...

(CROSSTALK)

WOLFF:  ... that‘s the wink that they do. 

JENSEN:  It‘s not—you know, you can say that listen, television is corrupt, television is debased, journalism is now debased and that‘s just the way the world is and you can—you sort of denigrate the way I‘m talking as old school or Miss Grundy, but you know, the fact is we‘re all collectively responsible for the culture we live in and that culture is falling apart.  The political culture is degrading and the broader culture is degrading...

WOLFF:  Yes, but...

(CROSSTALK)

WOLFF:  ... but there‘s probably something wrong with your approach since you clearly have almost no affect.  It gets worse and worse.  Journalism schools have continued to say the same thing year after year after year and it does no good.  You just don‘t come up with any other way to communicate with viewers and with readers. 

JENSEN:  OK, well that may be very true.  First of all, I have been very critical of journalism schools including my own because I don‘t think they think enough about the politics of journalism.  But you know, you got to remember we‘re up against corporate culture bottom line...

ABRAMS:  All right...

JENSEN:  ... profit driven culture.  I think don‘t think you can condemn journalists and talk about it as a religion simply because they are pursuing goal and ideals and I teach introductory journalism classes...

WOLFF:  Well I‘m not sure...

JENSEN:  ... people who bring incredible idealism...

(CROSSTALK)

WOLFF:  I think actually...

JENSEN:  ... I‘m not going to...

WOLFF:  ... actually the people you might most of all fault in this are in fact the journalists...

ABRAMS:  All right.

WOLFF:  ... who will do just about anything they‘re paid to do.

ABRAMS:  I‘ve let this go only because I find this very interesting.  It‘s really not the point—it‘s not quite the point we‘re talking about, but it‘s relevant and it‘s—I find it fascinating.  So let me take a quick break.  I‘m going try and come back to the topic of the interview with Geraldo.  We‘re going to play a little --  another piece of it with Michael Jackson. 

And also coming up, one city‘s fight to ban plastic surgery operations on pets.  It‘s tonight‘s “OH PLEAs!”. 

And a program note, joint me join me here, MSNBC, an in-depth look at the Jackson case.  The trial, trouble of the pop icon, 9:00 p.m. Eastern time, “MSNBC REPORTS”.  Professor Jensen won‘t be watching, but hopefully - - all right, coming up. 

(COMMERCIAL BREAK)

(NEWS BREAK)

(BEGIN VIDEO CLIP)

RIVERA:  What is it about children in distress?  You mention the tsunami relief effort. 

JACKSON:  Yes.

RIVERA:  What is it?  Is it your own fatherhood that motivates that? 

JACKSON:  Caring and reading the Bible, learning about God, Jesus, love—Jesus said bring on the children, imitate children, you know, be like little children and to take care of others.  Take care of old people.  And we were raised with those values.  Those are very important values in my family and I.  We were raised with those values and they continue strong in us today.

(BEGIN VIDEO CLIP)

ABRAMS:  Talking about Geraldo Rivera‘s interview with Michael Jackson.  The fact that Geraldo has come out publicly and admitted that he thinks Michael Jackson is not guilty.  So with that in mind, Michael, was this really a bad interview?  I mean we talk about the fact that it was a softball.  There were no tough questions, et cetera, but if you come into it assuming that Michael Jackson is innocent, well, then he‘s been falsely accused and he‘s going through a tough time. 

WOLFF:  You know, I suppose.  I mean I couldn‘t tell you if it‘s a

good interview or a bad interview because I don‘t think that‘s the terms on

which it‘s being presented.  It‘s being presented as, you know, a piece of

advocacy, as an opinion piece, as being very, very specifically designed to

speak to a very specific audience segment.  It is—my colleague is right

·         it isn‘t really journalism.  And on that basis, it‘s probably unhelpful and a waste of time to judge it on that basis.  It does what it does.  It is what it is.  And you can either watch it or turn it off. 

ABRAMS:  Professor Jensen, this is something of a legal question.  If you‘re not comfortable answering it tell me, but do you think that this is a—the reason that they were allowed to do this interview was because very incriminating grand jury material had been leaked?  And yet, it doesn‘t seem to me that this is exactly the sort of way to remedy the problem by letting his lawyer make a statement, by Jackson makes a statement, then he gets to do an interview with Geraldo.  It sure sounds like overkill a little bit when it comes to the response that this judge has allowed.

JENSEN:  Absolutely.  I teach a media law class and of course one of things we deal with is excessive pretrial publicity and publicity during a trial.  This really doesn‘t counter the problem of leaks.  It doesn‘t counter the problem of the fact that it will be very hard to find a jury that can be unbiased in this case.  I‘m not sure what the judge thought he was doing.  It seems rather irrational to me because it doesn‘t counter the problem. 

And I agree with Michael, it really wasn‘t even—you ask are they you know, good questions, bad questions.  They were kind of non-questions.  It‘s like, you know, if I ask you, Dan, how do you cope with being so handsome? 

ABRAMS:  No...

JENSEN:  I mean you know—I mean what does one say to that?  It doesn‘t really counter the factual information from the grand jury that was inappropriately released to the public.  It‘s just more of the circus and it‘s hard to see how any of this serves the public interest at all, whether it‘s on the part of the legal system or the journalists.

ABRAMS:  Yes, well...

WOLFF:  But it‘s not necessarily a question of countering.  It‘s a question of that having happened, what‘s your media strategy?  What‘s your response...

ABRAMS:  But the judge let it happen.  I mean the question is why—

I‘m not criticizing the Jackson team for doing what they did.  I‘m saying that the judge in response to some grand jury testimony, which was leaked, then lets in this sort of barrage of stuff.  Real quickly, Michael...

WOLFF:  yes, no, I mean I think that in the scheme of things you might say that‘s a fair way, that‘s a way...

ABRAMS:  Yes.

WOLFF:  ... to compensate for this. 

(CROSSTALK)

WOLFF:  ... this is a media trial. 

(CROSSTALK)

ABRAMS:  I don‘t know.  All right.  Professor Jensen, Michael Wolff, good to see you.

JENSEN:  Thanks.

WOLFF:  Thank you.

ABRAMS:  Coming up, human rights groups upset over videotapes of terrorists being released to the Iraqi public.  Is it really that much different than what we do right here at home or not?  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Why some human rights groups like to scream innocent until proven guilty.  That is unless it relates to the person doing the arrest.  They presume them guilty of torture in Iraq.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—knee jerk complaints from human rights groups about how terrorists are being treated.  The latest examples in Iraq, Iraqi police making an effort to turn the tables and use one of the terrorists‘ own effective propaganda tools against them—videotapes.  Tapes designed to show well the softer sides of the terrorists.  The videos juxtaposed tough guy terrorists involved in, for example, beheadings, with their new reality, captured detainees offering meek confessions and apologies. 

The Iraqis hope their new tactics will demystify the insurgents while also encouraging citizens to offer up intelligence about the whereabouts and activities of others.  It sounds good to me.  But no, rather than patting the Iraqis on the back for beating the terrorists at their own game, the usually sober Human Rights Watch is out whining already.

Sarah Leah Whitson from the group immediately went public denouncing the practice, citing statistics about the number of Iraqi detainees they believe have been tortured by Iraqi officials.  So without any evidence that these people on the videos were tortured, they seem to be presuming torture.  It‘s sort of ironic.  They seem to assume the Iraqi authorities are guilty of torture in this case and then worry to “The New York Times” that—quote—“The police often describe detainees as guilty before any trial had occurred and made them available to journalists to be photographed.”

Horrors—it happens every day here in the U.S.  The police arrest someone and treat them like he‘s guilty because well they believe he‘s guilty.  Sure, the case still has to be proven in court but in the meantime, they often have to stay in jail.  As for the detainees being photographed, how is that so different from a perp walk we see here at home? 

These are not soldiers captured in battle.  And on that issue, “The Times” is partly to blame here as well.  The article states the broadcast of such video raises questions about whether they violate legal or treaty obligations about the way opposing fighters are interrogated and how their confessions are made public.  People who have beheaded civilians on videotape are not opposing fighters.  They‘re terrorists.  Period.  “The Times” seems to have helped fuel the controversy. 

Look, if there‘s legitimate proof these people were tortured, it‘s another matter.  Until then I say let‘s go to the videotape. 

Coming up in 60 seconds, why my masculinity is not threatened by erectile dysfunction commercials.  Your e-mails coming up.

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say, now it‘s time for “Your Rebuttal”.  On Friday, we previewed this year‘s Super Bowl ads, which ads made it in, which ones got pulled because of their content.  We asked, has there been an overreaction in censoring what‘s on TV?  I said yes except that I do feel uncomfortable with some of the erectile dysfunction ads. 

Susan Spaulding in Virginia.  “The phrase if an erection lasts more than four hours seriously offends me, I cringe whenever that phrase is on TV, wondering how many kids will turn to a parent and ask mommy, what‘s an erection?”

From Minnesota, Jackie Otto.  “E.D. commercials may be new, but you don‘t want to explain to a child what an erection is?  No.  Do you know how long they have been advertising FDS, Playtex tampons, Kotex tampons, and Stayfree with wings?”

Virginia Hatmaker, “Is the reason the male population has such a problem with Viagra or Cialis commercials the fact that their masculinity is threatened by this affliction?”  What do you mean by that Virginia?  What are you talking about? 

Finally, Susan Downing in Oregon on a comment one of my guests made.  “Mr. Knight stated that he didn‘t want his children exposed to Super Bowl ads of a sexual nature and he inquired as to why he and his family couldn‘t just watch the Super Bowl without sex.  I am wondering how he has managed to watch football all of these years without exposing himself and his family to cheerleaders and their low-cut jiggling tops.”

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

“OH PLEAs!”—nip tuck could be canceled for one west side California community, an effort that could lead to an all-out ban on plastic surgery and believe it or not, it‘s happening in West Hollywood, home of the cosmetically perfect bodies, land of Botox and silicone, where soon operations done for only non curative reasons could get sliced.

That would mean residents of this athletically perfect city would not be allowed to get ears pinned or cropped, no taking a little off the tail nor moving fangs.  Oh did I mention that what we‘re talking about is West Hollywood‘s Mayor John Duran‘s effort to stop cosmetic surgery for pets?

Duran and others find such surgeries cruel, painful and purely for the owner‘s pleasure.

(LAUGHTER)

ABRAMS:  I mean the guardian‘s pleasure.  The city ruled four years ago that pets don‘t have owners, they have human guardians.  West Hollywood has been at the forefront for animal rights for over 10 years—I can‘t look at that—barring landlords from removing pets from seniors or disabled tenants and stopping the declawing of animals.  Pets in this California animal cruelty-free zone can let out a woof and a meow of relief for their imperfections.  If Mayor Duran has his way, the motion could become law just 30 days after passing the city council. 

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