updated 2/22/2005 9:16:35 AM ET 2005-02-22T14:16:35

Guest: Scott Gordon, Clint Van Zandt, Pat Brown, William Fallon, Jeralyn Merritt, David Gibbs, III, George Felos

DAN ABRAMS, HOST:  Coming up, police search for a missing pregnant woman and her 7-year-old son after they found their SUV partly under water. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Authorities issued an Amber Alert for them after the mother didn‘t show up at her own baby shower and relatives found blood in their living room.  We get the latest. 

And a prestigious prep school rocked by a sex scandal.  Police investigating five male students expelled after a 15-year-old girl performed oral sex on them, but so far, no allegations it was forced.  But since some were 17 and 18, Massachusetts‘ law could mean they face up to life in prison.

Plus, two women sue because they say they were fired for not showing a famous gorilla their breasts when the primate asked them to. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, an Amber Alert in Texas for a pregnant woman and her 7-year-old son.  The alert issued Saturday after Lisa Underwood, seven months pregnant, didn‘t show up for her own baby shower.  Family members alerted police late this morning.  Her abandoned car was discovered in a ravine outside the Fort Worth area.  Just an hour ago, Fort Worth police held a news conference at the site where they found the SUV.

Scott Gordon with NBC‘s Dallas station KXAS was there and joins us now with more.  All right.  So Scott any news coming from the press conference? 

SCOTT GORDON, KXAS-TV REPORTER:  Well, Dan, police say the discovery of the missing woman‘s SUV is a major step forward in the investigation.  Let me step out of the way here and show you what‘s going on.  Officers have been out here all day, they‘re using blood hounds, there‘s on horseback, they‘re searching for whatever clues they can find here, but the bottom line is they still just don‘t know where the mother and her 7-year-old son are right now.

Lisa Underwood was last heard from on Friday night when she talked to a friend on the phone.  On Saturday, Underwood, who is seven months pregnant, missed her baby shower.  That‘s when family and friend got concerned.  Family members went to her home and found blood on the living room floor.  Yesterday police issued an Amber Alert in Texas and four surrounding states and earlier today Underwood‘s missing SUV Was found here in Denton in a wooded area, about 30 miles north of Fort Worth.  And in that press conference about an hour ago, police said there is cause for concern. 

(BEGIN VIDEO CLIP)

LT. GENE JONES, FORT WORTH, TX POLICE DEPT.:  There was no evidence of forced entry at the home and as the report stated, there was a significant amount of blood inside the home.  But we‘re not prepared to make any definitive statements or draw any conclusions about what occurred inside the home.  That‘s the purpose of this investigation. 

(END VIDEO CLIP)

GORDON:  Now, police say they are questioning Jayden‘s father, as well as the father the unborn baby, but police say nobody has been ruled in or out as a suspect at this point, so right now exactly what happened remains a mystery—Dan. 

ABRAMS:  Scott, before we go to the profilers, let‘s get some of the facts down here.  Was she married?  Did she have a boyfriend?  Lay out for us sort of other people who might be questioned, et cetera. 

GORDON:  Well, that‘s the question on everyone‘s minds here.  Police aren‘t asking—aren‘t answering a lot of those questions right now.  They are only saying simply that the woman lived alone, with her 7-year-old son, and the father of the 7-year-old and the father of the unborn baby, we‘re talking about two different men here, police say that both of them are being cooperative, they are talking and at this point, they‘re not being ruled in or out as suspects.  Of course, in a situation like this, obviously police want to know who was the last person to see her alive, what was she doing in the hours before she disappeared, and if police know a lot of that information, they‘re just not sharing it with us at this point.

ABRAMS:  Let me play one more piece of sound from the press conference today. 

(BEGIN VIDEO CLIP)

JONES:  We have not narrowed in on any one particular person.  We are talking to a number of people, many of which are very close to Ms.  Underwood, and the purpose of those interviews and those discussions are to narrow the scope to particular suspect or suspects, but we have not named any suspects as of yet. 

(END VIDEO CLIP)

ABRAMS:  All right.  Scott, stay with us.  Joining me now, criminal profiler Pat Brown and Clint Van Zandt, an MSNBC analyst and former FBI profiler.  All right, Clint, what do you make of this?

CLINT VAN ZANDT, FORMER FBI PROFILER:  Well, unfortunately, we‘ve got one more now assault on a pregnant woman.  Nobody covered the Laci Peterson or Lori Hacking cases any better than you do, so we know how challenging those are to a community, but we also know that law enforcement, they start just like a target, they start on the bull‘s eye.  The bull‘s eye is going to be anybody that‘s close to this woman, be it the father of the first child, the second child.  The police tell us no evidence of anybody breaking in.  The last time we know that she had contact was 7:40 Friday night, but she‘s not reported missing until almost 24 hours later, so the police have got their work cut out for them right now.

ABRAMS:  Pat look, I don‘t know exactly what sort of relationship she was in or not in, but the bottom line is when you have a woman like this, seven months pregnant, and her son go missing, with blood in their living room, the first people they‘re going to be looking at are not strangers. 

PAT BROWN, CRIMINAL PROFILER:  Absolutely not.  When you have a pregnant woman, you have a problem for somebody, perhaps, that doesn‘t want that woman to be pregnant or is angry that that woman is pregnant.  Pregnant women are often targets, because while a woman may choose to be pregnant, the man who, shall we say, made her pregnant, or maybe somebody else who was involved with the woman, has no choice in that pregnancy.  In other words, the woman gets to make that part of the decision. 

So the pregnancy can become a problem for someone else, and that‘s why the police are going to look at the father of this child.  Did he want this child?  Does he want to support this child the rest of his life?  Is he angry about it?  They‘re also going to look at the father of the other child.  Is he angry that this woman got pregnant with another man and this child is now going to have a step daddy or stepbrother or sister?  Is that a problem for him? 

Is there a jealousy factor, even from a third person, maybe another man who likes this woman but now she‘s pregnant with somebody else‘s child.  So the pregnancy can cause a problem all the way around for people, if it‘s not a happy time for everyone involved, so police are always going to take a look at the men closest to the pregnant woman as the possible people...

ABRAMS:  And you know, Clint, we‘ve seen some high-profile cases where there have been women who have been killed for their babies, and that was...

VAN ZANDT:  Sure.

ABRAMS:  ... of course the effort of the defense in the Peterson case, which the jury didn‘t buy...

VAN ZANDT:  Yes.

ABRAMS:  ... but nevertheless, you know, it seems odd, if that were the case here that they would have taken the child as well, right? 

VAN ZANDT:  Well, again, she was seven months pregnant, so you know, one has to calculate what are the chances that someone would have done it with any type of hope whatsoever that that child would or would not have survived outside the womb.  This doesn‘t sound like a—you know if that was the case, the little boy would still be there.  That 7-year-old, we would find him somewhere around. 

You know, this is—this is not a random case, Dan.  This is somebody who knew the victim, and somebody who had a problem and wanted to clean up the problem and unfortunately, that pool of blood probably suggests their attempt to clean it up. 

ABRAMS:  All right.  Scott Gordon, I‘m going to put up a map of the Fort Worth area as to vis-…-vis where the body was found.  Lay out for us what kind of distance we‘re talking here. 

GORDON:  We‘re talking roughly 30 miles north of Fort Worth, 30 miles north of her home.  We are actually in the city of Denton, but we‘re out here in the country.  It doesn‘t look like the city out here when you look at it. 

ABRAMS:  Finally, Pat, do you expect that we‘ll hear something—I would expect in the next day or two we‘re going to get some more details from the authorities, you know, even if they don‘t have a suspect in hand?

BROWN:  I would expect they‘re going to be working very hard at this and they have something to work with, which is fortunate, and like Clint said, this is not somebody who‘s probably a stranger to this woman.  When a person tries to clean up a crime scene, which is what I heard might have happened here, that the blood is in the home but the victim is not.  A serial killer, for example, isn‘t even going to waste his time.  Is he going to kill the woman there?  He‘s going to leave her there and he‘s not going to bother to take that child with him.  This is somebody who knew the woman and maybe doesn‘t want the police to target in on him and so he‘s moving as far away as he can from that particular crime scene, hoping to elude them and hoping to make them think maybe somebody else is involved, not him who is so close to this woman. 

ABRAMS:  All right, we‘ll stay on this.  Scott Gordon, Pat Brown, Clint Van Zandt, thanks a lot.

VAN ZANDT:  Thank you.

ABRAMS:  A reminder, if you have any information on the disappearance of Lisa and Jayden Underwood, please call 1-800-THE LOST, 1-800-THE LOST. 

Coming up, a sex scandal at a New England prep school, five male students expelled after a female student allegedly performed oral sex on them.  She‘s 15, which could make it a crime with a possible punishment of up to life in prison for the 16, 17, 18-year-olds, particularly the 17 and 18-year-olds. 

And parents of a brain-dead woman lose another appeal to keep her alive.  Her husband wants to allow her to die.  Doctors could remove her feeding tube this week.  We‘re going to talk to the lawyers on both sides. 

Plus, if you‘re sick of people talking on cell phones wherever you go, a new cell phone jammer could be the thing for you, but is it legal? 

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 prep school expels five male students after a sophomore girl performs oral sex on them.  So far no allegations she was forced to do it, but under Massachusetts‘ law, some of the students could face up to life in prison if they‘re charged. 

(COMMERCIAL BREAK) 

(NEWS BREAK)

ABRAMS:  We‘re back.  An elite private school in Massachusetts rocked by a sex scandal.  Parents and students remain tight lipped while authorities decide whether to charge five male hockey players who reportedly received oral sex from a female student in the locker room back in January.  Possible charges could carry a punishment of up to life in prison. 

Amy Johnson from NBC‘s Boston affiliate WHDH has more. 

(BEGIN VIDEOTAPE)

AMY JOHNSON, WHDH-TV REPORTER (voice-over):  The exclusive Milton Academy has been known for a seller reputation, but now that reputation is in question after sex acts involving six of its students. 

UNIDENTIFIED MALE:  I hardly (UNINTELLIGIBLE) my parents yet because it‘s really embarrassing. 

JOHNSON:  On Friday, school administrators expelled five male students, all hockey players, for allegedly receiving oral sex from a 15-year-old female student in a locker room.  These students, who didn‘t want to be identified, aren‘t just concerned about the reputation of the school but the players as well.

UNIDENTIFIED MALE:  I really feel like this is going to have a horrible effect on their futures.  I definitely feel like they could put more time and effort into actually finding out what really happened, instead of just expelling five kids.

JOHNSON:  A school statement says this behavior, which clearly violates community norms, is simply unacceptable at Milton Academy.  The boys participated in a situation that involved a 5-1 ratio of boys to a single girl.

UNIDENTIFIED MALE:  The guys were in the locker room and they called her over, so she knew I guess the ratio of guys that was going to be before she got there. 

JOHNSON:  Do you believe that she consented to this? 

UNIDENTIFIED MALE:  Yes.

UNIDENTIFIED MALE:  Yes.

UNIDENTIFIED MALE:  Yes.

UNIDENTIFIED MALE:  Absolutely. 

UNIDENTIFIED MALE:  Absolutely.

UNIDENTIFIED MALE:  She should have got expelled as well.

(END VIDEOTAPE)

ABRAMS:  Amy Johnson reporting there.  While the boys were expelled, the female student was put on what the school calls administrative leave.  “My Take”—if this girl consented and was not forced to participate, the boys shouldn‘t have been expelled from school and even though the authorities could certainly make out a technical case for prosecution, if the boys were 17 and 18 in particular and the girl was 15, but if she wasn‘t forced to do it, this is one of those cases where the prosecutor should use their discretion and choose not to prosecute. 

Joining me now, former Essex County Massachusetts‘ prosecutor Bill Fallon and criminal defense attorney Jeralyn Merritt.  Before we get to the legal issues, let‘s just talk about the punishment from the school.

Let me read this from the—Cathleen Everett, a spokesperson for the Milton Academy.  The boys should have understood that a 5-1 situation is by definition pressurized and coercive, and you can‘t assume that there‘s anything mutual about it.

Boy, that‘s a reason to kick people out of the school, Bill? 

WILLIAM FALLON, FORMER ESSEX CNTY MA PROSECUTOR:  Well Dan, having worked with schools and having worked as a prosecutor on both sides of this, I‘ll just tell you that it probably is a reason.  There‘s probably something in this handbook that talks about those types of situations.  Milton Academy, which is a fine institution, is probably much more concerned with what they see, four or five of these kids being charged as adults with life felonies. 

Remember, when you get—we live in a politically correct society right now, but we don‘t also want to say that the world in Massachusetts at least, anyone under 16 is considered a child and cannot consent.  I think a prosecutor has to look at this, and it‘s going to be a close call for the 16 year-old, but no school wants to say as a 17 and 18-year-old performing the 5-1 trick, as we call it, that they want to just say this is acceptable practice...

(CROSSTALK)

FALLON:  ... and I think that‘s where it puts them. 

ABRAMS:  I didn‘t know there was a term...

FALLON:  Well there is, there is.

ABRAMS:  ... 5-1 trick...

FALLON:  It could be a 4-1 trick...

ABRAMS:  All right.  All right.  I didn‘t know about that.  All right, Jeralyn, here‘s the law.  Whoever has sexual intercourse or unnatural sexual intercourse with a child under 16 and compels said child to submit by force and against his will or compels said child to submit by threat of bodily injury, shall be punished by imprisonment in the state prison for life or any terms.  I mean the problem with that is that they would have to show there that submitting by force against the will, right?

JERALYN MERRITT, CRIMINAL DEFENSE ATTORNEY:  Well, usually when you have a statute that prohibits having sex with a minor, it doesn‘t matter whether the minor consents or not, because the minor is deemed not to be able to consent, because of their age.  But Dan, I really think you hit it right on its head in your opening statement, which was what about prosecutorial discretion.  Even if technically this is a crime, should criminal charges be brought, and I think the answer is no.  And as to the moral issues and the school issues, it sounds to me like the school is more interested in its reputation than it is about the welfare of all of these students involved, and why couldn‘t they just, if it is a pressurized situation, teach them that. 

FALLON:  Because Jeralyn...

(CROSSTALK)

FALLON:  ... because it‘s a life criminal—a felony.  Dan, let me just tell you, the—what you just showed her is just one of the charges.  In Massachusetts, it‘s just rape and abuse.  It does not have to be by force or threat of bodily injury.  That is also a life felony, but there is a house of correction alternative.  I think we‘re looking at the “boys will be boys”, “kids will be kids”.  I think the issue is here probably different from the 16 year-old.  And exactly what you‘re both saying is something a prosecutor looks at.  If it‘s a one-on-one, 16 and 15-year-old, is that technically a crime?  Yes.  Is that usually prosecuted?  Hardly ever...

ABRAMS:  Bill, around this country, there are seniors dating sophomores in high school...

FALLON:  Absolutely...

ABRAMS:  ... and I know there are a lot of parents out there who would like to figure out ways not to have their children have sex, but having the law step in and say, we‘re going to consider it a crime, and not just a crime, but you could possibly serve life in prison for it. 

FALLON:  Dan, and that‘s why if it was a one-on-one situation, we use those prosecutorial discretion all the time.  If some—parents sometimes wanted us to use the law, 16 against the 15, we look at the type of victimization.  We look at the crime and the criminal.  Once you got two people—remember in Massachusetts in a regular rape case of an adult, one person involved it‘s a 20-year felony...

ABRAMS:  So...

FALLON:  If two people are involved, it becomes a...

ABRAMS:  Right, so if it had been two men as opposed to five, then you might say oh you know what, don‘t prosecute.

FALLON:  No, it‘s one of those things that you‘d look at.  That would be a less heinous crime, I will tell you that, and a less heinous penalty.  I‘m not even saying they‘ll prosecute here.  I‘m just suggesting if somebody comes to you with a five against one and one of them is 18, if they‘re 16, closer, that‘s a juvenile, he would be held in juvenile court unless they decided to go to adult court. 

(CROSSTALK)

FALLON:  This is the difficulty.  The 18...

(CROSSTALK)

FALLON:  ... and the 15-year-old, how old is she?  If she‘s 15 years, 364 days, they‘re not going to prosecute unless it‘s coercive.  If she‘s a young 15 and they‘re the mature macho, this goes into that whole we‘re the big guys, big men on campus...

(CROSSTALK)

MERRITT:  Dan, I...

ABRAMS:  But you‘re going to start prosecuting...

MERRITT:  ... Dan, I think we need to get away so much from looking at this age business and let‘s look at the practicalities of this.  If we‘re going to make these kids plead guilty or if they‘re going to be found guilty of a sexual assault offense, they‘re probably going to have to be registered as sex offenders. 

ABRAMS:  Yes.

MERRITT:  Do we want to tag them with that because of an incident that happened...

ABRAMS:  Let me take a quick break...

(CROSSTALK)

FALLON:  We‘re not tagging them. 

ABRAMS:  ... take a quick break...

FALLON:  They tagged themselves...

ABRAMS:  Hang on...

FALLON:  Let‘s not blame the victim. 

ABRAMS:  All right, well...

MERRITT:  There may not be a victim...

ABRAMS:  Right, let me take a quick...

(CROSSTALK)

ABRAMS:  ... take a quick break.  We‘ll talk more about this in a minute.

And also two animal trainers sue because they say they were fired for not showing Koko the gorilla their breast when the primate asked. 

And you may have seen Britney Spears‘ honeymoon pictures on the cover of this popular magazine.  The pictures were taken by tourists and locals with—apparently with Britney‘s permission, but that‘s not where she wanted to find them, so can she sue now that they‘re everywhere?  Stay with us.

(COMMERCIAL BREAK)

ABRAMS:  (UNINTELLIGIBLE) exclusive Milton Academy in Massachusetts shaken by a sex scandal.  Five hockey players expelled from the private school for allegedly receiving oral sex from a 15-year-old female student.  Now authorities are deciding whether to charge the teens in Massachusetts, children under 16 too young to consent.  The incidents reportedly happened on January 24 in a locker room and according to reports, the girl performed oral sex on three sophomores and two juniors, allegedly started as a birthday present for one of the boys. 

School officials got wind of it, reported it to local police who are investigating the incidents.  All right, before the break, Bill, we were talking about the law here and talking about the fact that Jeralyn and I seem to agree here that if there was no overt force, meaning, if the only force was, what the school is saying, which is well, when you get that many guys together, there‘s implicit force, you‘re really even going to consider charging these guys with a crime?

FALLON:  Dan, you absolutely are.  Now what I‘m saying is, I‘m surprised that everybody here is presuming they‘re not going to be charged.  Jeralyn said of course they shouldn‘t be charged.  We really don‘t know the specific facts here, so let‘s say generally I get a report and I‘ve had numerous of these reports, some of them we prosecuted, some of them we didn‘t.  Some of them we looked at the victim, the victimization, the crime and the criminal.  I will just tell you, when you get to someone who is 18 years old, that‘s 17-year-olds are considered adults in Massachusetts...

ABRAMS:  Right.

FALLON:  ... 18-year-olds are considered adults. 

(CROSSTALK)

FALLON:  If it was a boyfriend-girlfriend situation, I can tell you it probably wouldn‘t be charged.  Once you start...

ABRAMS:  But it might be. 

(CROSSTALK)

FALLON:  But it might be.  It might be...

FALLON:  No, not the five boyfriends and one.  In fact, what‘s interesting here is what you just gave us is the one boy, maybe it was the 16-year-old, I said they‘re going to make the 16-year-old the heavy because it‘s going to be a juvenile court situation, but when 18-year-olds start too get involved, they better hope that they can convince a prosecutor not to indict them.  Again, I don‘t know the facts not to indict them and see if they can handle it in a misdemeanor felony session. 

ABRAMS:  But there‘s just something wrong with this when we‘re demanding so much more from a 16-year-old than we are from a 15-year-old in terms of accountability... 

FALLON:  Dan, and that‘s why I said the—if it were 16 and a 15-year-old, even though the law draws that line...

ABRAMS:  Yes.

FALLON:  ... we might not.  But...

ABRAMS:  Might not...

FALLON:  ... it‘s when a 17 and 18-year-old and that‘s what the legislature said, use your discretion...

ABRAMS:  Yes.

FALLON:  ... but you don‘t have that same argument for an 18-year-old...

ABRAMS:  But my concern is that the prosecutors here, Jeralyn, are just going to be distasteful of what happened and they‘re going to say it was gross and therefore it‘s criminal. 

FALLON:  Oh it‘s criminal...

ABRAMS:  Hang on.  Let Jeralyn go. 

(CROSSTALK)

ABRAMS:  Hang on.  Jeralyn, go ahead.

MERRITT:  You know, they can say that, but as we pointed out before, that‘s what prosecutorial discretion is.  Just because a crime is committed doesn‘t mean that you have to charge it.  I think that the prosecutor should also take into consideration some of the other consequences that are going to befall these kids by virtue of the expulsion. 

ABRAMS:  Yes.

MERRITT:  It‘s going to be harder for them to get into college.  You know, what about the fact that this all happened inside...

ABRAMS:  Yes, well if they‘re sitting in...

MERRITT:  ... of a 24 hour period...

ABRAMS:  ... a prison, they‘re not going...

(CROSSTALK)

ABRAMS:  ... to be going to college anyway.

MERRITT:  ... you know how many kids are having sex these days?  So what they need to do is first, take it upon themselves, the school, to teach these kids what‘s right, what‘s wrong...

ABRAMS:  Yes, come on...

MERRITT:  ... what‘s not appropriate...

ABRAMS:  ... but that‘s...

FALLON:  Jeralyn, they have to report this...

(CROSSTALK)

FALLON:  ... under the laws of Massachusetts, they have to report this to the Department of Social Services...

ABRAMS:  Yes, yes...

FALLON:  ... they probably have to report it to the police, and the best thing...

MERRITT:  They didn‘t have to expel the kids...

FALLON:  No, well actually...

MERRITT:  You know the problem is...

FALLON:  ... actually for committing...

MERRITT:  ... they‘re a private school so they can do whatever they want. 

FALLON:  Absolutely they can, but for a felony they—I‘m telling you when you report a felony like this to the police...

ABRAMS:  All right...

FALLON:  ... you better have taken some action...

ABRAMS:  Yes.

FALLON:  ... or parents are going to pull their kids out of Milton Academy...

MERRITT:  And so they could have...

ABRAMS:  Yes, well look...

(CROSSTALK)

ABRAMS:  ... they‘re going to pull the kids out of Milton Academy regardless because they probably are going to be very distasteful of what happened...

FALLON:  Dan, this could happen anywhere...

ABRAMS:  ... not the action...

FALLON:  Dan...

ABRAMS:  That‘s right, it could happen anywhere...

(CROSSTALK)

ABRAMS:  I‘m sure it does happen in a lot of places...

FALLON:  ... school that responds...

ABRAMS:  All right.

FALLON:  ... and thank God they did.

ABRAMS:  All right.  Well look, I think—look, if we find out more that these kids forced her in some way or—I‘m all for prosecuting, don‘t get me wrong, but if nothing—if there was no force here, we‘re talking about 15 versus 16 and 17, then come on. 

FALLON:  Eighteen...

ABRAMS:  All right, Jeralyn...

FALLON:  ... child abuse. 

ABRAMS:  Yes, all right. 

MERRITT:  Thanks.

ABRAMS:  All right, fine, then charge the one 18-year-old maybe.

FALLON:  Maybe. 

ABRAMS:  Jeralyn, Bill...

MERRITT:  No...

ABRAMS:  ... Bill is sticking around.  Coming up, time running out for the parents of a brain damaged woman fighting to keep their daughter alive.  We‘ll debate if the Schiavo case will come to an end this week.

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 last ditch effort by the parents of a brain-damaged woman to save their daughter.  Time is running out before doctors pull her feeding tube.  We‘ll talk with both sides, first the headlines. 

(NEWS BREAK)

ABRAMS:  We‘re back.  It‘s a heart-wrenching story, a bitter family battle that could come to an end this week.  The question, should doctors pull the feeding tube that‘s kept Terri Schiavo alive for nearly 15 years?  Her husband Michael has offered up medical testimony that says she‘s in a persistent vegetative state and says that she told him she‘d rather die than live that way. 

Terri‘s parents, Bob and Mary Schindler, say that while she is seriously disabled that they believe Terri could improve with therapy and should be allowed to live.  Both sides have been fighting over Terri in the courts, even in the State House where Governor Jeb Bush signed a law to keep Terri alive.  The Supreme Court rejected it, and there was an important ruling today.  A Florida appeals court denied another effort by the parents to try to delay having Terri‘s feeding tube removed, and so it could be a matter of days before Terri Schiavo‘s feeding tube is removed. 

“My Take”—no winners in this story and I‘m going to assume for the sake of this discussion that both sides are fighting for the right reasons, they may have not agree with that, but Bob and Mary Schindler have now exhausted every legal option to keep their daughter alive.  The courts have consistently upheld Michael Schiavo as their daughter‘s guardian.  I think it‘s time for the parties involved to accept this battle is over, but one person who won‘t agree with that is David Gibbs, III.  He‘s the attorney for Bob and Mary Schindler, Terri Schiavo‘s parents, and George Felos is Michael Schiavo‘s attorney.

Thanks very much for coming on the program.  All right, Mr. Gibbs, it does seem that just about everything has been exhausted.  There‘s really no legal shot here anymore, is there? 

DAVID GIBBS, III, ATTORNEY FOR SCHIAVO‘S PARENTS:  No, I believe there‘s a number of viable legal options and I believe that in a life and death case, we owe it to someone like Terri, who is a disabled woman, who can‘t speak for herself, to give her every opportunity, everything that we would afford to a death row inmate.  This is very much like a death penalty case.  There is no reversing the error and all we‘re asking is that Terri have her day in court and that this be reviewed and so yes, I believe there are options and things the court should look at definitely in this situation. 

ABRAMS:  I got to tell you, I‘m a little troubled by some of the arguments that you‘re making now and you say the Schindlers believe her previously adjudicated decision to refuse food and water, meaning the fact that the courts have found that she told her husband she wouldn‘t have wanted to be this way, would now be different due to the Pope‘s admonition that it is morally obligatory to continue nutrition and hydration for patients in a persistent vegetative state.  You‘re really saying that if she had seen what the Pope said that that would have changed everything for her with regard to how she‘d want her situation to be right now? 

GIBBS:  What we‘re saying in this case is that the judge, who is sitting as her proxy, the person who is to decide what Terri would want done, would want to know that the highest official in her church has given a clear statement that it is obligatory for practicing Catholics to have food and water. 

ABRAMS:  You say it would now be different though due to the Pope‘s admonition.  You are saying that as a result of what the Pope said, that Mary—that Terri Schiavo‘s position would have been entirely different with regard to whether she‘d want to be in this state or not? 

GIBBS:  Absolutely.  And the reason why we‘re saying that, Dan, is you need to realize in this situation, we have no written directive, no living will.  We have a lady that watching TV one night says to her husband, who‘d want to live like that, and that loose type of evidence is what‘s being used to determine that she would want to die.  We need to remember that her husband went before a malpractice court and told the jury there that he would take care of his wife for the rest of her life, that‘s why he needed the millions of dollars they were requesting, and all of a sudden, once the money came in then...

ABRAMS:  But isn‘t it true—wait, isn‘t it true he rejected—didn‘t you offer up to him all the—say to him, take all the money, et cetera, just give us the decision making power over Terri and he said no? 

GIBBS:  That has been put forward...

ABRAMS:  So if that‘s the case, then if he wanted the money, why wouldn‘t he just take it?

GIBBS:  Well I think that people‘s motives can change.  I think originally when he was before the malpractice court, it was a money concern.  I think now there is animosity between him and the family and again the offer stands.  The family would gladly take care of Terri if Michael would just be willing to get on his with life.

ABRAMS:  Mr. Felos, he‘s not going to accept that, right? 

GEORGE FELOS, ATTORNEY FOR SCHIAVO‘S HUSBAND:  No, he‘s not, because this case is not what Terri‘s parents want or what Michael wants, but what Terri wants and three witnesses testified that Terri said no tubes for me.  I don‘t want to be kept alive artificially.  I want to go when my time comes and there wasn‘t loose evidence.  The court found by clear and convincing evidence that Terri Schiavo did not want to be force fed through a tube and that‘s what they concluded five years ago in a judgment and it‘s about time that her wishes are carried out. 

ABRAMS:  What do you say to those who would say look, if the parents are going to take over all responsibility here and if Terri is, as you say, and your side says, in such a state that she can‘t understand what‘s going on or not going on, why not let the parents give it a shot?  Why not let them take over care for Terri and, you know, see if anything can be done, because if she is in this state as you say, where she can‘t really understand anything that‘s going on anyway, why not try? 

FELOS:  Well, because even though Terri is in a vegetative state and she has no cognition, she still retains her constitutional rights, and one of those rights is a liberty interest to control her own body.  And the court has determined what her constitutional right is.  So Mr. Schiavo as her guardian can‘t just toss away her rights.  Terri is not a suitcase that can be given over to somebody else. 

Even if Mr. Schiavo left today and another guardian were appointed, that guardian as the appellate court has ordered is compelled to carry out her wishes.  That‘s what he‘s going to do when he‘s legally able to do so, and there is no offer to be taken.  There is no money left, by the way, that Mr. Schiavo will benefit from.  He will not inherit one penny upon Mrs. Schiavo‘s death. 

ABRAMS:  Do you agree with that Mr. Gibbs?

GIBBS:  No, I disagree because I think he‘s looking at rights after her death and movie deals, but I would put this forward.  Mr. Schiavo at the trial said if there was any treatment for Terri, he would do it in a heartbeat and I think when we look at Sarah Scantlin after 20 years talking, when we look at the neurology report in “The New York Times”...

ABRAMS:  But those are different cases.  I mean those were—this is a case where a woman has been determined to be in a persistent vegetative state.  That woman was not considered to be in a persistent vegetative state...

GIBBS:  But there is a new classification called a minimally conscious state and Terri, I‘ve watched her recognize her parents, I‘ve watched her make different noises and faces, and I think Terri Schiavo deserves to be number one, reevaluated medically before any action is taken. 

ABRAMS:  She‘s been evaluated a lot of times here though.  I mean this is not like someone...

(CROSSTALK)

ABRAMS:  ... who‘s been evaluated once or twice. 

GIBBS:  But Dan, you got to look at technology changes quickly, medicine changes quickly, and Michael Schiavo said in a heartbeat he would do anything to help Terri.  I‘d ask him to keep his word. 

ABRAMS:  Mr. Felos, your response.

FELOS:  And he would.  The fact is that the same involuntary responses that opposing counsel saw were videotaped over hours, were seen by the judge, were seen by the doctors.  You know, you look at Terri‘s EEG report, her cerebral cortex has a flat line.  If you look at her brain scan, where her thinking brain used to be, is a giant black hole that‘s filled with water.  Terri is simply not like those patients that wake up from a coma.  She has massive, complete structural brain damage and unfortunately there is no medical treatment that can help that or remedy that. 

ABRAMS:  I‘m out of time Mr. Felos, but do you trust that the parents are doing this for the right reasons? 

FELOS:  I can‘t say—you know, I can‘t look into someone else‘s heart and see what their motive is.  All I have know for my client, he cares about Terri.  He‘s been found to be a loving husband.  He loves her, and he wants to carry out his promise to her. 

ABRAMS:  We shall see.  This case could both literally and figuratively be over in the next couple of days...

GIBBS:  And Dan, let me just speak...

ABRAMS:  Very quickly, I got to go.  Yes.

GIBBS:  ... that as a mom and dad, the Schindlers have the most pure motives...

ABRAMS:  Yes.

GIBBS:  ... trying to save the life of their daughter. 

ABRAMS:  All right.  Fair enough.  David Gibbs, George Felos, thanks a lot for coming on the program.  Appreciate it. 

Coming up, the famous gorilla Koko may be the largest known sexual harasser.  Two of her trainers are suing saying they were forced so show Koko their breasts. 

And your e-mails abramsreport@msnbc.com.  I read them at the end of the show.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  Back now with our “Just A Minute” segment, where I lay out today‘s other stories and my guest has a minute to discuss each with me.  Back with us is former Essex County Massachusetts prosecutor, Bill Fallon. 

All right, number one, ever get ignored when you‘re on a bus or walking down the street and the person next to you yapping away on their cell phone loud enough for anyone within a 100 yard radius to hear?  Now there are cell phone jammers.  The gadget enables you to bring an early end to your fellow straphangers‘ annoying conversations, by interfering with the cell phone signal and cutting off reception.  Question:  These devices legal? 

FALLON:  Dan, let‘s just say, they‘re probably illegal to use, they might be illegal to exist, but they‘re illegal to use, they‘re illegal to sell, but I‘ll tell you, this cellular disobedience, as we now call it, is going to be the crime of this century... 

ABRAMS:  Why illegal, Bill?  Why are they illegal? 

FALLON:  Well because the Federal Trade Commission—Federal Communications thinks that they can interfere with emergencies, anything like that, and there‘s a reason for them to be illegal, but quite frankly, no one is going to prosecute it.  Nobody has been prosecuted nor should anybody be prosecuted.  The difficulty is going to be when there is some kind of activity that let‘s just say a 9-11 again and not to bring up that dramatic, and you need to get the communications through, this is going to prevent police and other people from communicating.

But I will tell you right now, people absolutely hate this.  I have never heard so many people raise hazar-hazar (ph) that they can somehow zing somebody and have them not talk on a plane, not talk on the train, not talk on the bus.  So this cellular disobedience it‘s going to be like speeding, everybody is going to be doing it.

ABRAMS:  Issue two:  Britney Spears‘ honeymoon may be over, but the pictures are just coming out.  Pop star fuming, photos of Spears and her husband, Kevin Federline, are on the cover of this week‘s “US Weekly” magazine, as well as in a five-page spread on what was supposed to be their private getaway at Fiji Islands.  Spears let staff members of the resort take pictures after she was—quote—“assured” they were being taken only for private use.  Question:  Does she own the right to these photos Bill? 

FALLON:  I don‘t think she does, Dan.  I think it‘s going to be interesting—I think it will be very interesting to see contractually what she can do.  Did she have a contract with them to say I‘ll let you do this?  I doubt it.  I think there‘s no such thing as bad publicity and right now Britney Spears is looking for—she had a lot of fame before, she is down to her last five minutes unless she can revive this sagging career.  Remember, last week she had that whole thing that said my animal is better than what, some other blonde‘s animals. 

ABRAMS:  But does she own—but the right—the question is, let‘s assume she wants to sell these photos, you know, it‘s her honeymoon, et cetera.  She says look, you want to put them in the magazine, fine, pay me. 

FALLON:  Hey, Dan, and I think that that‘s fine if she gave—if they took—her photographer took the photos.  She let everyday people take the photos...

ABRAMS:  Right.

FALLON:  ... and I think that‘s really where the nub of this is...

ABRAMS:  She could sue them.  I mean...

FALLON:  She can absolutely sue them. 

ABRAMS:  She could sue the people who took them and say look we had a deal here.  The deal was you know you take the pictures and you‘re going to use them for private use and you sell them, I‘m going to take your money. 

FALLON:  Hey Dan and you know what, she would had to make that clear.  There would have been a meeting of the minds and I think Britney looks so happy in this, if I were her, I‘d like to get this one minute wedding out in front of the public so that she doesn‘t seem so toxic, no punt. 

ABRAMS:  The foundation that cares for Koko, the famous sign language understanding gorilla, is being sued for sexual discrimination by two of the caretakers who say they were fired for refusing to, what else, disrobe for the primate.  According to the lawsuit, through sign language Koko—quote—“demanded the women remove their clothing and show their breasts.”  They also allege that the foundation‘s president wanted them to bond with Koko by performing bizarre sexual acts with her.  Question:  Can a perverted primate be the cause of a sexual discrimination lawsuit, Bill? 

FALLON:  Hey Dan, we have here, are we coo-coo for Koko?  I mean this is one of those things that you have to look at.  This Francine, as far as I‘m concerned the president of this, if somebody is going to bare their breasts to Koko, maybe it should be her.  I mean you know one of the things that you‘re looking at is never mind we‘re talking about—you know, let her have a little office at Hooters, you know what I mean? 

This is the most absurd thing I‘ve ever heard of and I just wonder, you know, even their response, which I found amazing, it was this very lawyerly response and you know we all hate lawyers at times, saying they are you know, being disreputable.  Nobody is saying these women were fired for anything else.  If it‘s a sham that they‘re being fired, let‘s bring that out, but I‘m going to tell you, somebody is not going to think very highly of even this great organization to say you lose your job unless you take your clothes off and perform these acts.  Maybe Koko is coo-coo, but I‘m thinking they‘re a little coo-coo too if they fired her for it.

ABRAMS:  Yes, well who knows—all right—anyway I don‘t know. 

FALLON:  I like Koko by the way before this.  Maybe...

ABRAMS:  Yes, you know...

(CROSSTALK)

ABRAMS:  ... like a lot of other people, once you get to know them, Bill, they‘re not what they seem. 

FALLON:  Exactly...

ABRAMS:  Maybe Koko is like that as well...

FALLON:  We‘re all animals at heart. 

ABRAMS:  Bill Fallon, good to see you. 

FALLON:  OK.

ABRAMS:  Coming up, today‘s Presidents‘ Day, a national holiday, but do you really know who we‘re honoring?  I don‘t.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  It‘s a federal holiday, but do you know which president we‘re honoring?  I don‘t.  It‘s my “Closing Argument”. 

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—are you having a good day off from work to celebrate—what is this day called again?  Well that depends on who you ask.  To most, these days it seems this is Presidents‘ Day, a day better known for its discounts than its appreciation of our commanders-in-chief.  But even theoretically, is that supposed to apply to all presidents? 

Does it include an appreciation of our more mediocre presidents like Hoover and Harding, Andrew Johnson and Franklin Pierce?  But wait, some say it‘s just designed to celebrate two of the greats—those are the four—

Washington and Lincoln—and that it is just those presidents being honored.  OK, says who?  Officially, this is still a federal holiday for George Washington‘s birthday, February 22. 

In 1968, the uniformed Monday holiday law moved it to the third Monday in February.  On Monday that at time just happens to land closer to Lincoln‘s birthday on February 12, than Washington‘s.  But I would imagine even Lincoln would hardly want to be included in the party merely because his date of birth happens to be conveniently situated some days before Washington‘s, is a conundrum of presidential proportions. 

Now some states that have Lincoln holidays as well combined the two to make it a single day affair and a public sentiment matters, it seems these days Lincoln is the more popular of the two.  Two new polls out today ranking our best presidents have Lincoln at number one and three of all times while Washington didn‘t make the top five in either. 

But alas, this is officially still a day to remember our first president.  One congressman has even proposed legislation that would ensure the day is returned to our cherry tree axer (ph).  In truth, I don‘t much care what it is called—Lincoln, Washington, call it Chester Alan Arthur Day, but let‘s at least be clear about why most of America is on hold for the day.  Otherwise, this day means a little more than a day to shop, golf or take a trip, not that there‘s anything wrong with that.  Maybe we should just call it leisure day.  At least we‘d know for certain why we have the day off.

Coming up in 60 seconds, you‘ve heard of road rage, how about fast food rage?  It‘s tonight‘s “OH PLEAs!”.

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say, now it‘s time for “Your Rebuttal”.  On Friday we debated remarks made by Harvard President Lawrence Summers at an academic conference in January.  He suggested some reasons so few women get taught academic positions in science and math.  The conference was closed to the public.  And after being pressured, Mr. Summers‘ office released the transcript of his remarks.  I said Summers was throwing out some provocative thoughts and that anyone who denies there are any innate differences between men and women are fooling themselves. 

Many of you agree.  Peter Schwartz in New York.  “If you can‘t discuss and explore issues openly in a university forum, then where is it all right to do so?  This is a clear case of the P.C. police as I have ever seen.”

From Boston, Barry Armstrong.  “One cannot escape the fact that in most institutions engineering and scientific enrollment is predominantly male.  Given the advances in neurology and cognitive science, is it unreasonable to wonder whether or not inherent brain functioning differences between men and women might also contribute to this gender gap?”

On Friday, the New Jersey attorney general filed a lawsuit against Blockbuster, accusing them of deceiving people with its new “no more late fees” policy.  They didn‘t mention that if a customer doesn‘t return the movie or video game in eight days, he or she automatically will be charged the entire cost of the item. 

Evelyn Fireston in Harriman, New York.  “Blockbuster is not advertising full disclosure, but what idiot thinks he came keep a video forever?”

Nick Seiler, “It‘s interesting how Blockbuster is taken to court within weeks of establishing their new late fee system because their advertisements are being viewed as incorrect.  Yet, the American people spend months listening to ads from nationally political candidates that twist facts to the point of promoting falsities when Election Day draws near and nothing is done to remedy it.”

“OH PLEAs!”—it seems at least one Maryland man took the term drive- through a little too literally.  Forty-year-old Joseph Howard known for his impatience got stuck behind two women with three children, taking their time, deciding whether to super size their orders at McDonald‘s in Easton, Maryland.  Howard allegedly started cursing, making obscene gestures and revving his car at them. 

Finally the women pulled up to the pick-up window, but didn‘t get their Big Mac and fries fast enough, making Howard feel the need to add a shake to their meal as he rammed into the van twice.  When the women got out to inspect the damage, Howard fled but not before the women recorded his license plate number.  Howard was arrested, out on 3,000 bail.  That‘s a whole lot of 99-cent meals.  Remember, a Big Mac attack should never lead to an unhappy meal for others.

That does it for tonight.  See you tomorrow. 

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