updated 2/17/2005 2:25:38 PM ET 2005-02-17T19:25:38

Guest: Susan Filan, Michael Kane, William Portanova, Eric Flack, Barry Silver, Chip Babcock, Gary Casimir

DAN ABRAMS, HOST:  Coming up, Pennsylvania prosecutors could decide as early as tomorrow whether they‘ll charge Bill Cosby with sexual assault. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Since the first woman came forward, another accuser has gone public with her story, claiming Cosby assaulted her 30 years ago.  And prosecutors say they‘re investigating other leads as well.  How will all of this new information weigh in the D.A.‘s decision? 

Plus, caught on tape, an investigative reporter is attacked by the man he‘s trying to interview.  Now, police are searching for the attacker. 

And a teenager kills two police officers and a dispatcher.  Now the victim‘s family say the video game “Grand Theft Auto” made him do it.  We debate. 

The program about justice starts now.

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, prosecutors could decide whether to file charges against Bill Cosby as early as tomorrow.  The decision was expected sooner, but prosecutor Bruce Castor recently told the Norristown, Pennsylvania “Times Herald” almost daily there are new things coming in and every time somebody calls us, they have to be interviewed and that delays things.

In mid January, a 30-year-old female former employee of the Athletic Department of Temple University complained to detectives that Cosby touched her inappropriately during a visit to his home.

The woman said that early last year Cosby gave her some pills when she complained she wasn‘t feeling well.  She said she woke up hours later with her clothes in disarray and her bra undone.  Since the current accusations, another woman publicly has claimed—right here on this program—that 30 years ago, Cosby gave her pills and then groped her as well. 

(BEGIN VIDEO CLIP)

TAMARA GREEN, COSBY‘S SECOND ACCUSER:  I was fighting and struggling with him.  I‘m a person who, when attacked, makes a great deal of noise.  I can‘t tell you how long it all went on.  He had his pants down.  He did all kinds of things to me.  He touched me and fondled me and you know, all of the stuff that you—that I had never invited, did not want and was helpless to prevent. 

(END VIDEO CLIP)

ABRAMS:  Cosby denies he even knew that woman, Tamara Green.  He has apparently cooperated with authorities and through his attorneys has denied the allegations of both Green and the current accuser, called the current accuser‘s charges bizarre and preposterous.  And even the D.A. last month seemed to be a little bit doubtful as to whether charges would be filed. 

(BEGIN VIDEO CLIP)

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

(END VIDEO CLIP)

ABRAMS:  “My Take”—I still expect there will be no charges filed in this case.  The D.A. would have—had to have seen some pretty persuasive evidence to change course from what he way saying less than a month ago. 

Joining me now, former Pennsylvania prosecutor Michael Kane, Connecticut prosecutor Susan Filan, and former California prosecutor William Portanova.  All right, I want to go through with all of you sort of how the D.A.‘s are going to go about making this decision.  And let me play number one here.  This is a sound byte from Bruce Castor, the D.A. in Pennsylvania, from January the 26th

(BEGIN VIDEO CLIP)

CASTOR:  Pennsylvania and I guess throughout the United States, we punish people for intentional or reckless criminal conduct.  We don‘t punish people for making mistakes and doing stupid things.  And the dividing line between intentional or reckless criminal conduct and making a stupid or foolish mistake is one of the more difficult decisions that a prosecutor has to make. 

(END VIDEO CLIP)

ABRAMS:  Susan, based on the press conference, wouldn‘t this D.A. have had to see some pretty convincing, hard, firm evidence to what I view as change course and decide to charge Cosby?

SUSAN FILAN, CT STATE‘S ATTORNEY‘S OFFICE:  Not necessarily Dan.  The difficult thing in a case like this is the prosecutor himself is not going to be able to determine what really happened.  The best that he can do is determine what evidence does he have to present to a jury. 

A:  Is there probable cause to arrest? 

B:  Is there enough to prove beyond a reasonable doubt. 

What he‘s going to have to look at is, are there inconsistencies in her statement?  Is there any corroborating detail to her statement?  What he may have thought earlier may have changed now.  Is it because of Tamara Green coming forward?  No, certainly not, that‘s not relevant, that‘s not admissible. 

But what about all this other information that‘s coming through?  Does that make any difference to him?  I think that may be not only what‘s slowing him down, but what‘s making him think. 

ABRAMS:  I don‘t know, Mike.  I don‘t believe that he would have come out, publicly and made the comments that he made—I‘m going to play another sound byte here.  Let me just finish this.  He wouldn‘t have made these comments if they hadn‘t already started investigating these particular—I‘ve got to believe that what he‘s talking about these other calls, et cetera, not all of them are going to have to have related to this particular woman and this particular case.  Let‘s listen again, Bruce Castor, the D.A., January 26. 

(BEGIN VIDEO CLIP)

CASTOR:  The delay in this particular case is of importance to us, and one of the factors that I‘ll have to look at, assuming we decide that there‘s enough evidence that we could consider moving forward, is my judgment on whether her reason for the delay is good enough.  To overcome what I think would be a juror‘s predisposition to use that, to adversely assess her credibility. 

(END VIDEO CLIP)

ABRAMS:  Mike, he‘s talking about a delay of 11 months by this woman in coming forward from the time it happened until the time she reported it.  He says to decide whether we could even consider moving forward.  You know, this just doesn‘t sound like a D.A. to me, unless something has entirely changed is going to move forward. 

MICHAEL KANE, FORMER PENNSYLVANIA PROSECUTOR:  Well, I agree with you, Dan.  He clearly—whether he‘s—he was saying it or not, he clearly had formed some type of opinion about whether he was going to go forward at the time he made those statements.  Most prosecutors don‘t go on you know, on the airwaves and talk about where they‘re heading on a particular case until they‘ve completely done it and they‘re ready to decide. 

Things have happened, there have been other allegations.  We don‘t know what has transpired since he made those statements there.  But it was pretty clear when he made those, that he thought that the delay, the—between the act, the purported act and the accusation being made public, that was pretty fatal to her credibility. 

ABRAMS:  All right.  William Portanova, I‘m going to place another piece of sound again, you know, that again, that makes me think things really have to have changed if they‘re going to come forward and announce some sort of charges tomorrow.  Let‘s listen. 

(BEGIN VIDEO CLIP)

CASTOR:  What I have seen reported is that she had contacts with Cosby after this alleged incident and that there was a series of those.  Now, that would tend to argue in benefit—to the benefit of Mr. Cosby, because that would tend to suggest to a jury that she didn‘t think the contact was that offensive. 

(END VIDEO CLIP)

ABRAMS:  Everything he said seemed to be helpful to Bill Cosby.  So Bill, what is—what has to have happened in the meantime? 

WILLIAM PORTANOVA, FORMER CALIFORNIA PROSECUTOR:  Nothing.  This case was dead on arrival.  Eleven-month delay was too long.  There‘s no way to corroborate this story one way or the other at this point.  It‘s a terrible tragedy for her if in fact the groping did take place.  And for all girls and women out there who do get groped—drugged and groped, the sad part is they have to make a decision immediately about whether to go to the police.  And most women, I think...

ABRAMS:  I don‘t know that everyone would agree with you on that, Bill.  I think a lot of people would say well, you know what, as long as it‘s within the statute of limitations they can come forward whenever, you know, I mean...

PORTANOVA:  Well no, no they‘re entitled to.  I‘m just saying they can go to the police any time they want and they should go to the police.  But the problem is if they wait, it‘s too late to try to prove that they have corroboration. 

ABRAMS:  Yes.

PORTANOVA:  She would have had drugs in her system—they could have confirmed that—and they could have nailed him if he‘s in fact guilty. 

FILAN:  I couldn‘t disagree with you more.  Just because a woman delays in reporting and some crucial evidence is lost doesn‘t cast doubt on the veracity of whether it actually happened.  There are many, many complicated reactions to a sexual assault that result in delay.  Just because that‘s great fodder for cross-exam by a defense lawyer doesn‘t mean it can‘t carry the day for proof beyond a reasonable doubt in a court of law.  To basically deny a woman‘s right to come forward at any time for whatever reason and say, too late, we‘re not going to prosecute, is, I think, incorrect. 

PORTANOVA:  Well...

KANE:  ... it comes down to the plausibility. 

PORTANOVA:  Well, the reality is if you had listened it to what I had said, what I said was the tragedy is if you cannot prove these cases a year later.  If you go to the police immediately, you have the proof.

ABRAMS:  And...

PORTANOVA:  And women justifiably don‘t necessarily go to the police because it‘s humiliating and they don‘t want to be stamped with a “V” on their chest as victims forever. 

(CROSSTALK)

PORTANOVA:  I‘m not criticizing her. 

ABRAMS:  And Susan, listen to Bruce Castor again and I think he‘s addressing the point here and I wonder whether you think again he‘s telling us something. 

(BEGIN VIDEO CLIP)

CASTOR:  Sometimes cases, cases where there might be criminality, can‘t be prosecuted for lack of evidence or lack of likelihood of prevailing.

(END VIDEO CLIP)

ABRAMS:  Susan? 

FILAN:  Yes, absolutely.  I mean there are definitely cases where you think something happened and you can‘t prove it and you can‘t charge it.  It‘s not fair to bring a charge that you can‘t prove.  Yes, he‘s telegraphing something, but the delay to me is significant and I‘m wondering if he isn‘t reconsidering.  I do think that holding this 11-month delay against her is one of the main reasons in not coming forward...

ABRAMS:  Yes.

FILAN:  ... isn‘t fair, but there may be something else that he can‘t disclose that‘s really causing...

ABRAMS:  Yes.

FILAN:  ... him doubt.

ABRAMS:  And, Mike, what do you make of the fact that we expected an announcement from the prosecutor earlier than we‘re actually getting it.  Does that tell you that maybe, maybe there has been a change of course? 

KANE:  No, I think what‘s probably happened is since the other woman came out, you know, in any high-profile case there‘s always a lot of people that come out of the woodwork.  And if you don‘t run each of those leads down, you‘re going to find yourself in trouble, whether you charge or not.  But I think that one of the things that—the most critical thing in the delay is what‘s the reason for the delay? 

And there well—there may well be a plausible reason, in which case the D.A. is going to say, that‘s not going to affect the jury.  But in this case her father was quoted and saying the reason she didn‘t report...

ABRAMS:  Yes.

KANE:  ... this initially was because she didn‘t realize until she had taken massage therapy courses...

ABRAMS:  Yes, yes...

KANE:  ... that there was improper touching...

ABRAMS:  Yes, well that...

KANE:  If that‘s the reason...

ABRAMS:  I got to tell you, when I heard that, I thought, boy, either she has got to, you know, get her parents to shut up or this case is going to fall apart.  We shall see.  Again, the D.A.‘s could come—make an announcement as early as tomorrow.  This is the program to watch.  Michael Kane, Susan Filan, Bill Portanova, thanks a lot. 

ABRAMS:  Coming up, a television reporter is assaulted in the middle of the interview.  It‘s caught on tape, but get this.  Now the authorities are literally on the hunt for the guy who attacked him at this company. 

And the families of police officers killed by a teenager say the video game “Grand Theft Auto” made him do it.  They‘re suing everyone from the manufacturer of the game to the stores that sold it.  But is the video game really to blame for a murder?  We debate. 

Plus eight years after Princess Diana died in a car crash, investigators now using high-tech forensic tools to piece together clues to determine once and for all was her death really just an accident.

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 Kentucky television reporter attacked while conducting an interview.  Now the attacker is on the run.  We‘ve got the tape, coming up. 

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  Caught on tape, a Kentucky television reporter assaulted while trying to do an interview.  And now the man who assaulted him is on the run.  Eric Flack of our Louisville affiliate WAVE was at the offices of PC Pro, a marketing firm, doing some investigative reporting.  When the company‘s president saw Eric interviewing some of the employees, he apparently let loose. 

Eli Ohayon punched, kicked, head-locked his way to 15 minutes of fame across TV networks across the country.  Now, a warrant has been issued for his arrest.  The problem is Ohayon is nowhere to be found.  Joining me now, Eric Flack, the WAVE reporter assaulted by Ohayon. 

Thanks a lot Eric.  How are you doing?  Are you all right? 

ERIC FLACK, WAVE-TV NEWS REPORTER:  Yes, I‘m doing all right, Dan. 

Thanks for asking. 

ABRAMS:  So what‘s up with this guy?  I mean what was he—what were you there investigating?  And you know, the police told us that you know a lot about the search as well.  So what‘s going on with the search? 

FLACK:  Well, we were investigating allegations that Eli Ohayon was running a pyramid scam.  He took exception to that.  He took exception to previous reports where we had mounting evidence.  And as you said, he let loose, attacking me.  Now, an arrest warrant was issued for him yesterday.  Police tried to serve that warrant today both at an old address, which turned out to be bogus, as well as at the offices outside of which I got assaulted, and Ohayon was nowhere to be found. 

People inside the company told police that he has now left the state.  They weren‘t telling police where he was.  But Ohayon said he was going to have a lawyer answer the warrant.  But he has not in fact done that and tonight he remains a wanted man. 

ABRAMS:  That‘s him.  All right, we‘re going to put up a picture of him in case anyone—I mean is he literally on the run?  Do we know that?  Have they—is that a fair characterization? 

FLACK:  You know, he knows that he is wanted by police here in Louisville, Kentucky and we know that he has left the state, so you can characterize it however you want.  The funny thing is that if he were never actually to come back to the state, he could dodge this charge altogether.  He‘s charged with fourth-degree assault, as well as third-degree criminal mischief, but both are misdemeanors.

There‘s no out-of-state extradition laws in Kentucky for misdemeanors, so the only way he‘s going to have to face this charge is if he comes back to the state of Kentucky to appear before in front of a judge.  But right now nobody knows if he‘s going to do that.  And police say there‘s no way they can go track him down even though we have information about where he might be. 

ABRAMS:  Now you didn‘t want to fight back, I assume?  I mean you know, everything is on tape...

FLACK:  I‘ve been asked the question...

ABRAMS:  Yes.

FLACK:  I‘ve been asked the question a number of times.  What I just figured was it would just create a melee...

ABRAMS:  Yes.

FLACK:  ... worsen the situation even farther than it already had become and I just wasn‘t interested in doing that.  I was interested...

ABRAMS:  Yes.

FLACK:  ... in getting the story, getting to safety, and most importantly getting the video, and we got all that.

ABRAMS:  Yes.  It‘s sort of like the Keith Partridge approach.  I don‘t know if you ever saw that episode of “The Partridge Family”.  All right...

FLACK:  Something like that.  Something like that...

ABRAMS:  All right...

FLACK:  Don‘t think...

ABRAMS:  I‘m—go ahead, finish your thought. 

FLACK:  No, I was just going to say, don‘t think after watching this video a couple of times, I don‘t wish I would have punched him back. 

(LAUGHTER)

FLACK:  I‘ve had second thoughts.  I think I did the right thing. 

ABRAMS:  All right.  Here‘s a statement from PC Pro, the company, the guy, the president.

In response to recent events broadcast in the local news, we wish to issue this statement to express our complete intolerance of violent acts by any means.  As always, we expect all of our distributors to conduct themselves with restraint and to comply with federal, state and local news at all times—news, yes, all right—as well as the PC Pro policies and procedures—I assume that meant laws at all times.  We‘re aware of the unjustified and sensationalist attempts to disparage our name and are prepared to take any legal action necessary to protect our common interests.

What are they talking about?  Distributors?  I mean this guy is the president of the company...

FLACK:  Yes—look, PC Pro is a big umbrella organization of which Eli Ohayon runs a local franchise called...

ABRAMS:  Oh, got it, OK...

FLACK:  ... Louisville Pro.  He is running this franchise, based on our evidence, like a pyramid scam and we have evidence to back that up. 

(CROSSTALK)

FLACK:  PC Pro is claiming that our reports are disparaging their company, but our reports stand for themselves. 

ABRAMS:  All right.  Well look, I don‘t know anything about whether that‘s true or not.  But I do know that the guy...

(CROSSTALK)

ABRAMS:  ... the guy took it to you on the tape.  Eric Flack, I hear you‘re quite an investigative reporter down there.  Thanks a lot for coming on the show.

FLACK:  All right.  Thanks, Dan. 

ABRAMS:  Coming up, Michael Jackson says he‘s still not feeling well after being rushed to a hospital with flu-like symptoms—a lot of activity at the hospital right now.  We‘ll get a live report. 

(COMMERCIAL BREAK)

ABRAMS:  At any moment we could have more information with regard to Michael Jackson, who is at a hospital in Santa Maria.  That‘s where our own Jennifer London is located.  Jennifer, we‘re expecting to hear something new in the next few minutes? 

JENNIFER LONDON, MSNBC CORRESPONDENT:  Yes Dan, a couple of things to tell you about.  We are getting word from the hospital that they plan to hold a press conference in just about five minutes.  They have given us no other details, but we are assuming that we will get some kind of update as to Michael Jackson‘s condition. 

And just about half an hour ago we saw a lot of activity outside of the hospital, at least from where I am standing.  We saw a bunch of police cars show up, some motorcycle cops.  And we also saw Michael Jackson‘s mother, father and his brother, Jermaine, arrive at the hospital—all of this sort of adding to the sense that maybe Michael Jackson was getting ready to be released. 

Everyone got into position, expecting him to leave.  That hasn‘t happened yet.  Also adding to the sense that maybe Michael Jackson was getting ready to leave, Dan, is we stopped seeing him make these very brief appearances from his hospital window.  All day long we have seen him sort of playing with the fans that are outside the hospital, if you will.  They‘re outside chanting “Michael, we love you.  Michael we love you.”  And then he pulls the blinds a little bit, gives them a little wave.  At one point he held a teddy bear outside the window.  And he was doing that all day long and then that simply stopped.  So we are hoping when this hospital press conference happens in just a few moments we‘ll have a little more information. 

ABRAMS:  I wonder if his lawyers said to him, hey, no more teddy bears out the window.  Might not be such a good move.  Any update on his—he‘s in the hospital for—quote—“ flu-like symptoms”.

LONDON:  Dan, that‘s correct.  We spoke with one of his publicists earlier this morning and she said that Michael had a restful night.  He is suffering from what‘s being described as severe flu-like symptoms.  She also says he‘s simply exhausted.  She said despite the fact that he had a restful night, this morning he wasn‘t really feeling well enough to be released. 

She said he did feel better today than he did yesterday when he went to the emergency room.  But she says this morning the doctors were still evaluating him.  And she said they don‘t want to release him prematurely and have him relapse and have to go back to the hospital.  So, as of right now, we are still waiting to get an update on his condition. 

ABRAMS:  All right.  And we will take that press conference live when it happens.  Jennifer is there monitoring it.  Jennifer thanks. 

Coming up, did violent video games move a teenager to kill two police officers and a dispatcher?  A suit filed by the victim‘s family says the game, “Grand Theft Auto” is to blame.  We debate. 

Plus, the investigation into Princess Diana‘s death continues.  Now detectives armed with high-tech forensic devices are going back to the scene.  The question:  Was it really an accident? 

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

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a teenager kills two police officers and a dispatcher.  Now the victim‘s family say the video “Grand Theft Auto” made him do it.  How can a video game be responsible?  We‘ll debate.  First, the headlines.

(NEWS BREAK) 

ABRAMS:  It may be the most popular video game series in America, with over 40 million sold.  It‘s also at the center of a $600-million Alabama wrongful death suit that follows a vicious shooting in June of 2003.  The game, “Grand Theft Auto” several variations, like “Grand Theft Auto III”, the latest “Grand Theft Auto: San Andreas”.  The games invite players to steal cars, kill police, and have sex with prostitutes, and then kill them for points.

The suit charges that Devon Moore, age 16, was an obsessive player when he lived out the game‘s central fantasy, hijacking a car, then shooting two Alabama police officers and an emergency dispatcher after he was caught.  Now family members of two of the victims have filed suit against Wal-Mart stores, Sony, GameStop and Take 2 Software for making, marketing, et cetera, the game and the player and selling it to Moore when he was a minor. 

(BEGIN VIDEO CLIP)

JACK THOMPSON, ATTORNEY FILING SUIT:  This industry has targeted with the most popular and the most violent game in history, every police officer in the United States of America and put a bull‘s eye on their backs. 

(END VIDEO CLIP)

ABRAMS:  Now the video game industry has been sued before in this sort of context and so far, none of those suits have succeeded.  The lawyer for the plaintiffs claims violent video games are nothing more than murder simulators that teach children to kill and enjoy killing.  The video game industry markets and sells them to children, even though it should foresee that copycat killings might follow, and the video games can provide an indispensable link in the chain that causes that leads to killings.

“My Take”—look, if you want to say the makers of these games and chain stores that carry them shouldn‘t market them or sell them to kids, good.  Go for it.  You‘re right.  OK.  But to suggest that the stores and game-makers can be held liable for the actions of a crazy kid, come on, that‘s no different than holding the makers of a computer car game responsible if some underage kid plays it, winds up running someone off the road. 

It is the ultimate example of trying to deflect personal responsibility.  Chip Babcock is an attorney who specializes in First Amendment cases and Barry Silver is a Florida attorney who has a similar case against the creators of “Grand Theft Auto” pending in Palm Beach County.  Gentlemen thanks for coming on the program.

All right, Mr. Silver, what am I missing?  I mean how can the company possibly foresee that some kid is going to take the game and go and kill someone? 

BARRY SILVER, FILED VIDEO GAME SUIT:  It‘s 100 percent foreseeable.  It‘s not that the game itself in isolation causes the kid to go out and commit murder.  It‘s that maybe one in a million kids watching this, is going to have other factors present in his life, which will cause him to be a murderer.  And these are training films for psychopaths.  It‘s 100 percent foreseeable.  In fact, we see it every day...

ABRAMS:  So...

SILVER:  ... see in this country...

ABRAMS:  ... if it‘s one in whatever it is...

SILVER:  One in a million, maybe. 

ABRAMS:  All right.  Fine, let‘s say one in a million, all right...

(CROSSTALK)

ABRAMS:  ... have that tendency...

(CROSSTALK)

ABRAMS:  That‘s fine, but there are going to be a ton of different things that are going to set that one in a million kid off...

SILVER:  Correct. 

ABRAMS:  ... and you‘re saying that anyone who sets that kid off should be sued.

SILVER:  No.  What I‘m saying is someone who wants to poison the minds of our youth for profit should pay the penalty when it‘s foreseeable that one of those kids is going to kill somebody.  Just like if you market a dangerous product and you know that somebody is going to get hurt from the product, you should be held accountable. 

My lawsuit, Dan, is like what you said.  It‘s simply to get them to stop selling it.  I didn‘t file this wrongful death one, but I sympathize and agree that if you‘re selling a dangerous product, poisoning the minds of our kids, you know it‘s going to result in killing they should be held accountable.  We have a school shooting every so often. 

We have a violent, aggressive act just like this every so often.  It‘s 100 percent foreseeable that when you poison the minds of kids and train them to be psychopaths, someone is going to get hurt. 

ABRAMS:  And would you also sue, you know, the makers of violent movies, et cetera, because they show violence and kids go out and imitate it sometimes? 

SILVER:  Dan, there‘s a big difference between watching a violent film and an interactive video game in which you are simulating the violence and given positive reinforcement and more points, depending on how many kids you kill.  That is the most likely to lead to actual aggression, because it desensitizes you, and the only way you can get the original thrill of watching and interacting with the violence is to commit the violence...

(CROSSTALK)

SILVER:  Some kids, they will do that. 

ABRAMS:  Chip, let me read you from the lawsuit. 

The game is, in fact, not even speech, but is in fact a device, an appliance, a murder simulator no less, that communicates no First Amendment information, but rather trains a human being, especially minors, to enjoy the act of killing and to kill effectively.

CHIP BABCOCK, FIRST AMENDMENT ATTORNEY:  Well, if you want my comment on that, Dan, the cases say otherwise.  There have been a lot of these lawsuits.  I don‘t think a single one of them has been successful.  There are most often decided on the common law grounds.  The First Amendment doesn‘t even come into play except as an after-thought.  But the First Amendment does have an important role to play.  This is speech.  I don‘t think there‘s a single case that says it isn‘t. 

ABRAMS:  But what is the reason, Chip, fundamentally that the courts -

·         let me put up number seven here.  This is from the court of appeals opinion. 

Courts have held that except under extraordinary circumstances individuals are generally entitled to assume that third parties will not commit intentional criminal acts.

I mean that‘s the point here. 

BABCOCK:  Right.  I mean you can take the whole body of literature, movies, games, and say that there‘s violence in them and so maybe somebody watching it might commit a criminal act.  But if you accept that proposition, you‘re going to create liability for a whole body of work that the First Amendment just doesn‘t tolerate. 

ABRAMS:  What about Mr. Silver‘s point that this is unique.  That these kinds of games, that he says, you know, teach, et cetera, have interaction, are unique in that sense? 

BABCOCK:  I‘ve defended a lot of cases like this.  And every single time the plaintiff says, but judge, this is unique.  This is different.  It really isn‘t.  It‘s understandable what‘s going on here.  There‘s been a terrible tragedy. 

There are victims and the person or persons that are directly responsible for the tragedy don‘t have any money.  And so you go out, looking for somebody that‘s got deep pockets and that‘s what‘s happening here. 

ABRAMS:  And let me read, again, more from the lawsuit because I want to ask you about this, Mr. Silver, because they make a comparison that I think doesn‘t work here.  They talk about a case that civil liability was imposed on the publisher, a hit man, a contract murder instruction book that had been read and then used by a killer.

If the U.S. Supreme Court can countenance a wrongful death action based upon a written book, surely there is a legal and constitutional basis for a wrongful death action based on the wrongful marketing and sale of an adult-rated video game killing simulator to a minor.

I mean first of all, why is the company that makes these responsible that a kid was able to buy this? 

SILVER:  The companies themselves admit that they are not designed for kids under 18...

ABRAMS:  Right.

SILVER:  ...because they know it‘s dangerous.  So if they allow their products to be sold to kids...

ABRAMS:  What do you mean allow?  I mean they say that they can‘t be sold to kids under 18.

SILVER:  Yes, but they don‘t do anything to try to enforce it.  In fact, I filed a lawsuit to prohibit the sale to kids under 18 and they‘re fighting me on it.  They market it to kids just like the cigarette companies marketed to kids knowing that they were going to buy it and then they say, oh, gee, we had no idea. 

They know full well that kids under 18 are buying the product.  They do nothing to prevent them from doing it, and the legal theory is that you can‘t yell fire in a crowded theater because it‘s dangerous.  The First Amendment fortunately is not absolute. 

ABRAMS:  But this isn‘t about the First Amendment...

SILVER:  These films are far more dangerous than yelling fire in a crowded theater...

ABRAMS:  This isn‘t about the First Amendment.  This is about the fact that for you to hold a third party responsible for the act of someone else is going down a dangerous road.  When you start blaming everyone else for the acts of individuals, we‘re going to create chaos. 

SILVER:  No, the dangerous road is having absolutely no limit on what you could say and tell a kid, and what you can show a kid, the vicious violence, and advocating murder.  Chip, I ask you, do you think there should be any limits?  Should we be able to tell a kid, hey, it‘s fun to kill somebody.  Here‘s how you do it and here‘s how you escape getting caught. 

And why don‘t you join the Nazi party, they‘re a great group of guys.  Do you, Chip, think that there are no limits when it comes to violence?  We have limits on sex.  You show a breast on TV, people get all bent out of shape, but a breast has never hurt anyone.  Are you saying, Chip, that there‘s no limit to how you can poison the mind of a kid and allow that kid to be...

ABRAMS:  Let him answer...

SILVER:  ... subjected to influences?

BABCOCK:  Well, you‘re mixing a whole lot of things.  But your lawsuit has been rejected all across this country and...

SILVER:  Not my lawsuit. 

BABCOCK:  Well...

SILVER:  My lawsuit is still alive and well, sir. 

BABCOCK:  Well stay around. 

But your theory has been rejected all over the country.  Of course we want to raise our kids well and we want to teach them good things.  But, but for the courts to come in and impose liability on a video game company under these circumstances, it just doesn‘t happen. 

SILVER:  Chip, you cannot yell fire in a crowded theater...

(CROSSTALK)

BABCOCK:  You can if it‘s on fire...

(CROSSTALK)

ABRAMS:  Yes, it‘s actually falsely yell fire in a...

(CROSSTALK)

BABCOCK:  If the theater is on fire, you should yell fire. 

ABRAMS:  Yes, all right, I got to wrap it up.  Let me just read this from Rockstar Games.

We would like to extend our deepest sympathies to the families of the officers killed.  The suggestion that there‘s a link between the use and sales of “Grand Theft Auto” and this tragic incident is utter nonsense.  Anyone suggesting that such a link does exist is either misguided, misrepresenting the facts, or both.

(CROSSTALK)

ABRAMS:  Chip Babcock...

SILVER:  There‘s a lot of respected scientists, then, who must be misguided. 

ABRAMS:  ...thanks a lot.  Appreciate it.  Good to see you. 

BABCOCK:  Thank you.

ABRAMS:  Coming up, you‘ve heard that it may take weeks and weeks to find a jury in the Michael Jackson trial and we are waiting for a possible press conference to take place.  We‘ll get an update on Michael Jackson‘s condition.  He may be released from the hospital at any moment. 

And investigators are back at the Paris tunnel where Princess Diana died in a car crash.  They‘re testing out high-tech forensic tools to determine once and for all, did Diana really die in an accident? 

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  We‘re back with our “Just A Minute” segment.  As I told you last night, you might recognize this segment because it‘s strikingly similar to our “Just One Question?” segment.  Many of you noticed I had a hard time sticking to a question, so we changed the rules.  Now it‘s our guests who will deal with the restrictions. 

They‘ve got just a minute to answer my questions and I can ask as many as I want.  Joining me now criminal defense attorney Gary Casimir.  All right, Gary, Michael Jackson  expected to spend another day in a Santa Maria hospital or maybe he‘s going to get out in a few minutes...

(CROSSTALK)

ABRAMS:  He was rushed there yesterday with flu-like symptoms.  Judge

Melville pushed back jury selection until Tuesday.  Some saying it could be

·         still finish next week.  Question:  Is it possible this actually may be done next week? 

GARY CASIMIR, CRIMINAL DEFENSE ATTORNEY:   No way.  There‘s no way it‘s possible.  Michael has got two more flu‘s scheduled in his plans, and he‘s probably going to have to get emergency treatment for each of those flu‘s.  He didn‘t get the flu shot last year, so we‘ve got a lot of issues here.  There‘s no way the selection is going to finish within two weeks.

ABRAMS:  So you expect that there‘s going to be a lot of delay.  I

mean it sounds like what you‘re saying is that you think we‘re going to see

·         well you don‘t think it‘s real?  I mean come on, the doctor is saying he‘s got them and the doctor is not going to make it up. 

CASIMIR:  No, I don‘t think the doctor is making it up, but when you get the flu or I get the flu, we go get Contac.  We go to a drug store and we go home and we go to bed.  You know it‘s emergency room visit, ambulance chasing, and you know, getting admitted for flu-like symptoms is a little odd.  I‘m not saying he‘s faking it.  I‘m saying he may be exaggerating it just a little bit, but you know...

ABRAMS:  But why?  I mean just to delay the process? 

CASIMIR:  I mean look, there‘s a lot of stress involved with being on trial, Dan.  I don‘t want to pretend that it‘s a light audit sort of situation.  But it‘s better to not have to deal with that than—you know, he‘s not necessarily dealing with reality anyway.  So here you get to go to the hospital.  You get all the attention, maybe a little sympathy.  Michael is sick...

ABRAMS:  Yes.

CASIMIR:  He needs a tissue. 

ABRAMS:  Jackson, illing (ph) or chilling?  All right.  Defense attorneys for Robert Blake kicked off their case yesterday, attacking one of the prosecution‘s two star witnesses who said Blake tried to get them to kill his wife.  They used words like snuff and other things.  Hollywood stunt man Gary McLarty‘s son and estranged wife testified that he used cocaine for 30 years that he was unstable.  His wife even said McLarty told her he didn‘t want to testify and said he might possibly lie.  Question: 

Should prosecutors be nervous, Gary? 

CASIMIR:  Absolutely.  Well you know, the whole McLarty family seems to be a picture for dysfunction.  I don‘t know if they could even—you know they probably beat “The Simpsons” here.  The one thing—that you say the son thinks the dad is just a lying cocaine addict who does all kinds of things, you know, to get attention.  The wife gets on the stand, the mother, says the same thing.  It doesn‘t really help the prosecution‘s case. 

It‘s one of those situations where the prosecution is wondering god, we should have done some background checks into the—what—the former stuntman turned I‘ll pop anybody you ask me to pop for $500 or so.  It‘s not a good thing for the prosecution.  But the other side of the story is it looks like Robert Blake did ask them to go beat some people up and the son does admit that did happen, so I mean it‘s a win and a lose situation for Robert Blake.

ABRAMS:  Gary, could they convict just on the business about I left my gun in the restaurant.  I mean could jurors simply say you know what, the bottom line is his wife is killed outside the restaurant and his alibi is I went back into the restaurant to get my gun.  Could jurors just say that is just too incredible? 

CASIMIR:  Absolutely.  It‘s just too coincidental and I think that one of the things the prosecution is going to do is say Robert is still acting.  He thinks he‘s still producing his “Baretta” sitcom...

ABRAMS:  All right...

CASIMIR:  ... you know thought of the whole thing.

ABRAMS:  It‘s been eight years since Diana and Dodi Fayed died in a car crash in Paris, ruled an accident.  But now it‘s part of an investigation into rumors that the crash was planned.  British and French detectives are using high-tech equipment like special cameras, lasers, sophisticated measuring devices to try to piece together a 3-D computer model of the scene trying to find new forensic clues that may have contributed to the crash.  Question:  Is it possible they‘re really going to find anything new? 

CASIMIR:  Not one thing.  Look, Prince Charles was going to get his lady, Camilla, and something had to raise Diana from the dead, and this is just one of those things.  He couldn‘t get a day where he had all the attention and this has to come back to haunt him again.  I don‘t think there‘s anything new that‘s going to come out of this.  They‘re just going to have better pictures, computer generated pictures of the crash.  I think the conspiracy thing, you know, I—Mr. Fayed‘s father feels for his son, he thinks there‘s more behind this, but I don‘t really think...

ABRAMS:  Gary, how much has the technology developed in this time, this, whatever, six-year period.  How much better is the technology now than it was back then? 

CASIMIR:  Well I can tell you in the courtrooms, the way they‘re reconstructing accident scenes, it is incredible.  Like you just did an episode just recently with the video games.  They‘re using the video game technology to reproduce accident scenes.  And so you‘re actually watching what happened, and it‘s incredibly life-like, and it‘s very good technology. 

But I don‘t think that‘s going to show that there was a murder plot or there was some other conspiracy besides a drunk driver.  A guy who had more than enough, Henri Paul, who had too much to drink and decides to go high speeding down the English Channel, into the tunnel, and being chased by paparazzi at the same time.  I don‘t think you‘re going to find anything more than an accident caused by a drunk driver. 

ABRAMS:  Gary Casimir, good to see you again, Gary. 

CASIMIR:  Good to see you Dan.

ABRAMS:  Thanks.

CASIMIR:  Bye.

ABRAMS:  Coming up, the CIA seems to be suggesting they can‘t hold some of the most dangerous terrorists much longer, so what happens then?  It‘s my “Closing Argument”, coming up.

(COMMERCIAL BREAK)

ABRAMS:  A man files a false advertising lawsuit against the maker of a certain herbal enlargement pill.  He says the product came up short.  It‘s our “OH PLEAs!” segment coming up.

(COMMERCIAL BREAK)

ABRAMS:  It‘s not so surprising news today, the CIA saying it may have to back off in its role as custodian of some of the world‘s most dangerous terrorists.  The nation‘s top intelligence officers are reportedly afraid their legal authority to keep these individuals, particularly about three dozen being kept in secret prisons is on increasingly shaky ground. 

A former lawyer in the CIA General Counsel‘s Office recently told “The New Yorker” that he—quote—“doesn‘t think anyone has thought through what we do with these people.”  There‘s absolutely no precedence here about trying to turn global terrorists into your run-of-the-mill criminal defendants isn‘t going to work.  Here‘s the problem. 

The U.S. legal system doesn‘t have a play book for dealing with these guys and any time special accommodations are considered civil rights groups how?  Individuals like Ramzi Binalshibh and Khalid Sheikh Mohammed who planned 9/11 are so dangerous and know so much about al Qaeda, that sticking them in the legal system, even the military justice system I think would be both dangerous and counterproductive.  But the U.S. Supreme Court has made it clear that all detainees at Guantanamo Bay, for example, have a legal right to attorneys and a hearing. 

Then there‘s Zacarias Moussaoui who‘s alleged to have been in cahoots with the 9/11 hijackers.  He‘s being tried in a civilian court and the judges ruled he‘s entitled to access to intelligence information, witnesses, et cetera.  After three years of frustrating delays in that case, it‘s become increasingly clear that Moussaoui probably should not have been tried in a civilian court. 

I thought civilian court would work, but now it seems a military tribunal would have been better.  The rules aren‘t quite as protective of defendants there.  So as we decide what to do with the so-called ghost detainee who remain in various interrogation rooms around the world, let‘s remember the lesson of the Moussaoui case.  And keep in mind these terrorists are intentionally trying to prey on the weaknesses in our system.  Let‘s not let those weaknesses offer the terrorists a technical sword to use as the final weapon against this country. 

Coming up in 60 seconds, many of you extremely skeptical about Michael Jackson‘s bout with the flu.   

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say, now it‘s time for “Your Rebuttal”.  Yesterday Christopher Pittman found guilty of murdering his grandparents while they slept when he was 12 years old.  Pittman‘s attorneys claimed he was under the influence of the antidepressant Zoloft when he killed them.  I said this is the right verdict but this child should never have been tried as an adult.  Some of you agree. 

Craig in Idaho.  “Why is it that a 12-year-old who commits murder is old enough to understand what he has done and can be treated like an adult, but a 12-year-old who has sex with an older woman is too young to understand.”  All right, fair point. 

East Alton, Illinois, Russ Bullman.  “Well if 12 is too young to drink, too young to drive, too young to smoke—we got the too‘s.  They should all be double O‘s, I know --  too young to vote and too young to buy “Playboy”, then it‘s too young to be tried as an adult.”

On the other side, Kenna Nauenburg in Riverside, California.  “Christopher Pittman gave up his childhood or his right to childhood when he picked up a shotgun and killed his grandparents, set their house on fire, ran away, and then lied.”

From Hartsville, South Carolina, Jay Cee.  “Maybe if you saw the medical examiner‘s pictures of the two victims with their heads blown off, you‘d think differently.”

Deb in Plymouth, Massachusetts.  “Surely you are aware of cases where children are deemed as psychopathic and can indeed commit violent crimes and murder without showing an ounce of remorse.  It is sad for the children, even sadder for the victims.”

Michael Jackson in the hospital yesterday for the flu, delaying his molestation trial for a week.  Many of you skeptical including Paul Giordano.  “Who the hell has to be treated in a hospital for the flu?  Who does he think he‘s kidding?”

Steve Krivit in Santa Barbara, California.  “Just a tad too theatrical, don‘t you think?  Most amazingly though, Marian Medical Center reported Jacko was—quote - ‘stable‘.”

 

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

“OH PLEAs!”—promises, promises.  Michael Coluzzi saw an infomercial citing guaranteed results or a promised refund for let‘s just call it a male melody.  The—quote—“very, very convincing ad” promoting herbal pills featured doctors and porn stars.

These weren‘t just any kind of herbal pills.  These were designed to beef up his manhood.  The ad promised the supplements would add up to three inches to Coluzzi‘s penis size.  Thinking this was the natural road to grander pastures, Coluzzi bought a 30-day supply of the Alzare pills at the very, very low price of just $59.95. 

But after taking the wonder drug for two weeks and seeing no signs of an...

(LAUGHTER)

ABRAMS:  ... of an enhanced—of results, Coluzzi filed a lawsuit for false advertising.  He claims that despite the under-whelming performance, he was unable to rebound with the promised refund.  Coluzzi‘s complaint is one of thousands made to local government agencies and Better Business Bureaus about drugs that promise to bump it up.  You got to wonder whether the real complaints came from, well let‘s just say, someone who knew him well.  Can we put up that graphic again?  Do we have time?

That does it for us tonight.  Coming up next, “HARDBALL” with Chris Matthews.  See you tomorrow.

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

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