updated 2/23/2005 10:28:03 AM ET 2005-02-23T15:28:03

Guest: Scott Gordon, Clint Van Zandt, Brian Wice, Victoria Toensing, Stephen Sommers, Jeanine Pirro, Joe Tacopina

DAN ABRAMS, HOST:  Coming up, the bodies of a missing pregnant woman and her 7-year-old son are found.  Police arrest what‘s believed to be the unborn baby‘s father. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Stephen Barbee allegedly confessed to strangling Lisa Underwood during a fight.  When her 7-year-old walked in, he allegedly strangled him, too.  The apparent motive—a response to her blackmail.

Plus, another ABRAMS REPORT exclusive—NBC News has learned it‘s not the first time Michael Jackson‘s accuser has accused someone.  Turns out he also once claimed his own mother abused him.  The state stepped in.  We‘ve got the details. 

And an American valedictorian charged with conspiring to assassinate President Bush and supporting al Qaeda.  He‘s back in the U.S., but is this going to be another legal nightmare for prosecutors? 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, Lisa Underwood, seven months pregnant and her 7-year-old son, Jayden, apparently suffocated to death.  Stephen Barbee, the man believed to be the father of Underwood‘s unborn child, is now charged with capital murder.  Barbee, a married man, was at one time romantically involved with Underwood.  There are allegations of blackmail and a secret life.  Following Barbee‘s capture, a grizzly discovery not far from where Underwood‘s abandoned SUV was found yesterday afternoon. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  We are here to confirm that a makeshift grave has been located in southwest Denton County.  We were lead to this location by Stephen Barbee after he provided a confession to our investigators. 

(END VIDEO CLIP)

ABRAMS:  An Amber Alert had been issued for Lisa and Jayden on Saturday after Lisa didn‘t show up for her own baby shower.  Family members alerted police.  Scott Gordon, a reporter for Fort Worth‘s NBC affiliate KXAS-TV has been following the story and joins us once again tonight. 

Scott, so now there‘s talk of blackmail as the motive? 

SCOTT GORDON, KXAS-TV REPORTER:  That is exactly right, Dan.  Publicly, at least, police are saying very little, but from police sources, we‘re learning a lot of the details of his confession, which he gave overnight in Tyler, Texas, which is east of Dallas.  That‘s where he was arrested overnight. 

Now we‘ve learned that Barbee told detectives in his confession that he had had an affair with Underwood and that he was the father of her 7-month-old unborn baby.  Now he says, according his confession, that she demanded that he leave his wife and that he—she also asked for money in exchange for her not telling his wife about the baby.  So, some bizarre twists in all this today, Dan, as this story has unraveled here in Texas.

ABRAMS:  Do we know why he strangled the boy, according to his confession?  I mean is the reasoning that he just happened to walk in?

GORDON:  That‘s exactly right.  According to the affidavit, the arrest warrant affidavit, he says that he suffocated Lisa Underwood first and that as he was doing that, the 7-year-old boy walked in the room screaming and at that point, he says, he also suffocated the little boy. 

ABRAMS:  How did police get the break and zero in on Barbee? 

GORDON:  Well, there‘s a little bit of an interesting story there, Dan.  It turns out that a sheriff‘s deputy unknowingly had stopped Barbee late Friday night about 3:00 in the morning Friday night, Saturday morning.  He was walking along the side of the highway.  At that point, the deputy had no way of knowing that a crime had been committed.  At that point, the Amber Alert hadn‘t even been sounded yet. 

But he questioned Barbee and also made an arrest of somebody in a car who apparently came to pick up Barbee, somebody who had an outstanding warrant completely unrelated to any of this.  A few days later, when they discovered the SUV that was located very close to that location, they put two and two together, and discovered that he was that man walking along the side of the highway and police tell me that when confronted with that information, he finally confessed. 

ABRAMS:  Very quickly, did anyone else know about this affair?  Meaning, if they hadn‘t just happened upon him, would they have been able to get back to him somehow? 

GORDON:  Would they have been able to get back to...

ABRAMS:  Meaning, would they have been able to find out about this affair?  Meaning, did anyone—any of his friends, her friends, did they know about it, did they talk to police about it? 

GORDON:  There were some of her friends who have given police information along those lines.  But from what they‘re telling us, from what the friends are telling us, they said that the relationship was not that serious.  But of course, there had to be some relationship there for him to be the father of this unborn baby, obviously. 

ABRAMS:  All right.  Scott Gordon, you know, if you can stick around, that would be great.  “My Take”—as I said last night, a pregnant woman dead almost always means an angry man is behind it.  Once again it appears that is the case here. 

Joining me now, former FBI profiler Clint Van Zandt, also an MSNBC analyst and Texas defense attorney Brian Wice.  All right, Clint, you know, what is going on?  Let me put up a statistic here.  Maryland, 247 women examined.  Of them—of the reasons that they died, pregnant women, 50 of them were homicide victims. 

CLINT VAN ZANDT, FORMER FBI PROFILER:  Yes, you know, Dan, we get back to it again.  That is a good statistic for Maryland, perhaps.  It is not nationwide.  But I think you‘ve hit it on the head.  When we talked on your program last night, you know, we suggested this would be a quick case to solve because you go right to the bulls eye and the target.  You go in this case to whoever had impregnated this woman and it always, always, always winds up to be a crime of, you know, obviously violence. 

But what makes that violence?  You know, there is anger.  There is rage.  There is frustration.  I mean I don‘t care what this guy‘s reason is, though.  I don‘t care if she was going to blackmail him.  I mean in his affidavit, in his confession to police, he says that she kicked him.  I mean here is a 5‘2” 7-month pregnant woman and he says, well, she kicked me, therefore I punched her in the face a couple of times. 

She—her nose started to bleed.  I knocked her to the floor.  I choked her out and when her 7-year-old boy ran in the room screaming to try to protect his mother, I turned around and killed him, too.  I mean this is triple...

(CROSSTALK)

VAN ZANDT:  ... homicide from a cold-blooded callous—and I‘m biting my tongue at this point.

ABRAMS:  Brian Wice, does blackmail—does the allegation of blackmail, do you think, even come up as part of the defense? 

BRIAN WICE, CRIMINAL DEFENSE ATTORNEY:  You know, Dan, as of this afternoon, the Texas penal code didn‘t include blackmail as a defensive theory.  Dan, blackmail is motive that the state gets to introduce as part of its case in chief.  And we don‘t know a lot about the facts of this case, aside from Barbee‘s confession.  But you don‘t see the usual defense of suspects—mistaken identity, alibi, consent or self-defense.  And regardless of what he did to Lisa, what will get him the needle in either Tarrant County or Denton County, is killing young Jayden.

ABRAMS:  What about the confession?  You know, if you‘re his attorney, I‘ve got to believe that the first thing you‘re going to try and do is get that confession thrown out. 

WICE:  There‘s no question about that.  I think that any lawyer with the ink dry on their bar degree understands that.  Certainly it is a long shot at best...

ABRAMS:  Because he led them to the bodies, after all, right? 

WICE:  Absolutely and that is one of the exceptions in Texas to whether or not your confession is voluntary.  If you lead police to the discovery of evidence they otherwise wouldn‘t have known about, assuming the confession is otherwise voluntary, you‘re as dead as Miles Davis, Dan. 

ABRAMS:  And you know Clint, all right, so now all the evidence seems to be pointing—what happens now in terms of the investigation?  I mean is this investigation over? 

VAN ZANDT:  Yes and it‘s not just his own statement, Dan.  There is going to be a ton of physical evidence.  They have got his pants and shirt that he had on the night he allegedly killed these two, which are going to have soil samples.  They‘re going to have hairs and fibers.  They are going to have her blood on him.  I mean there is going to be a ton of linking physical evidence, not withstanding his confession, because as we were told earlier, the law enforcement already knew who this guy was. 

ABRAMS:  Yes...

VAN ZANDT:  So they had put two and two together before he ever opened his mouth. 

ABRAMS:  And you know I‘m sure, very quickly Brian, you‘d want to cut a deal as a defense attorney, but I can‘t see that the prosecutors would offer one. 

WICE:  Oh, my god, Dan.  I would run to the courthouse...

ABRAMS:  Yes.

WICE:  ... this afternoon as soon as I got off this set.  As a practical matter, this case will be tried in Fort Worth, more experienced defense attorneys, more experienced prosecutors, greater resources.  This is a case that they will tell the public is made for the death penalty, Dan. 

ABRAMS:  Scott Gordon, Clint Van Zandt, and Brian Wice thanks a lot. 

VAN ZANDT:  Thank you. 

ABRAMS:  Coming up, our exclusive on the boy accusing Michael Jackson of molesting him, details about allegations he‘s made in the past that could call his own credibility into question.  We‘re not just talking about his mother here. 

And the feds arrest an American for conspiring to assassinate President Bush and for supporting al Qaeda.  But he says he was tortured in a Saudi jail before the U.S. decided to charge him.  Is this just going to turn into another legal nightmare for prosecutors? 

Plus, two women say they were fired—you heard this story, right—because they failed to show the gorilla their breasts when she asked them to.  Well we‘re going to talk to their lawyer about why he decided to file the lawsuit. 

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, an American valedictorian charged with conspiring to assassinate President Bush and supporting al Qaeda, he‘s back in the U.S., but I ask is this going to be another legal nightmare for prosecutors?  Coming up.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  We‘re back.  A Virginia high school valedictorian is now accused of trying to assassinate President Bush and of helping al Qaeda.  Ahmed Omar Abu Ali, now 23, facing up to 80 years in prison if convicted.  But convicting him in a U.S. court could be tricky.  Before being returned to the U.S. this week, he was held in a Saudi prison for more than 20 months.  He says the Saudis tortured him, even offering to peel off his shirt and show the scars on his back to a U.S. judge.  Ed McMahon, one of Abu Ali‘s attorneys, says he‘s seen the scars himself. 

(BEGIN VIDEO CLIP)

EDWARD MCMAHON, ABU ALI‘S ATTORNEY:  I am somewhat saddened by the thought that it‘s come to the position now that our government apparently is prepared to use evidence that‘s been produced by torture in a criminal case in the United States of America. 

(END VIDEO CLIP)

ABRAMS:  “My Take”—this has all the makings of another legal mine field for prosecutors.  Ali‘s case sounds a lot like that of Zacarias Moussaoui, accused of working with the 9/11 hijackers.  Like Moussaoui, they found lots of incriminating evidence at his home, you know, pro-Jihad, anti-American stuff, and it seems they intend to compare his actions to those of his co-conspirator like the Moussaoui case.  That case has become a disaster and here it seems almost all of his alleged crimes were committed in Saudi Arabia where he says he was tortured.  So will he be able to deal with all of this? 

Well let‘s ask Victoria Toensing, the former deputy assistant attorney general at the Justice Department and an expert on terrorism, national security and white-collar crime.  How are they going to overcome all of that, Victoria? 

VICTORIA TOENSING, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL:  Well I don‘t see it like the Moussaoui case at all, Dan, because in the Moussaoui case, he—Moussaoui is saying hey, there‘s witnesses out there and they‘re in U.S. custody and I want to go interview them because I bet you they can say that I didn‘t do any of this and they won‘t know me.  In this case, it certainly appears to me from reading the indictment, where there are 10 unnamed co-conspirators that the U.S. government has these people in their back pocket and that these people are ready to testify against Abu Ali. 

ABRAMS:  What do you...

TOENSING:  So I think it is very different than—it‘s called the Brady issue in the Moussaoui case...

ABRAMS:  Yes.

TOENSING:  ... and you‘re not—I don‘t think you‘re going to find that here...

ABRAMS:  You don‘t think that he‘s going to start asking—if one of the allegations is that he‘s trying to support al Qaeda, won‘t they try and call these various al Qaeda senior members who are in custody and say, hey, do you know who this guy is?

TOENSING:  Well they don‘t need that.  They don‘t need to...

ABRAMS:  But he‘ll ask for it. 

TOENSING:  ... to the top—well he may, but if they have the evidence of these people talking about how he knew he was meeting with al Qaeda people and no matter—you know, let‘s compare it to a usual drug conspiracy.  You don‘t have to meet the top kingpin and bring that person in.  You could say—the government could say, look, he met with—they have got 10 of them, one through 10, there is the testimony.  These people, co-conspirator number seven said, hey, we‘re going to plan to kill—it was actually co-conspirator number two—we‘re going to plan to kill the president and here‘s possible ways to do.  That is sufficient to indict and there is not a need for somebody way high up to say hey, I didn‘t know this guy.

ABRAMS:  What about this allegation of torture?  The parents the U.S.  initiated his arrest.  They interrogated him in prison.  They controlled his detention in Saudi Arabia.  They kept him in a Saudi prison to avoid constitutional scrutiny by the U.S. courts.  They made a deal with the Saudis to release him to U.S. custody on request.  Issue? 

TOENSING:  It depends on the facts.  There is an old doctrine that I worked with a lot when I was at the Justice Department called the Kur Frisbee (ph) doctrine and it says basically the Supreme Court said in the last century, we‘re not really going to look at how somebody was brought to this courtroom, even if they were kidnapped, if they were handcuffed, if they were roughed up.  But the limit on that in recent years has been, OK, you can‘t really be tortured... 

ABRAMS:  Right. 

TOENSING:  ... and the United States cannot have participated in the torture.  So, here‘s the situation.  Here‘s...

ABRAMS:  The U.S. did the wink-wink, nod-nod, you know, that‘s just the theory, right, is that the U.S. basically says to them take care of this guy.  You know, get us what we need. 

TOENSING:  Yes, but let‘s stop.  Here is the first step, Dan.  We‘re going—the courts are going to have to decide there was actual torture going on.  Now one of the allegations and I think it‘s the only one I could find in the allegations by Abu Ali is that he was handcuffed and they took nude pictures of him.  I don‘t think that‘s going to shock the conscience of the court, which is what the real test is.  I don‘t think any court here is going to think that that is terrible. 

ABRAMS:  But he says he‘s got those marks on his back from being beaten in Saudi Arabia. 

(CROSSTALK)

ABRAMS:  He says he‘s ready to show it to the judge. 

TOENSING:  It may be, but then the next step that his lawyers are going to have to prove is that not only is it torture and it shocked the conscience of the court, but that U.S. personnel knew about it and/or participated in it.  And let me just tell you the last thing that they‘re going to have to get.  Because even if all that‘s true, what‘s the penalty?  Do you really think if you‘re sitting there as a federal judge you are going to say, (UNINTELLIGIBLE) these people have cut one person from the CIA knew that this was going to go on, so we‘re going to let this guy who wants to kill the president...

ABRAMS:  Yes.

TOENSING:  ... go free.  I don‘t think so.  There might be other kinds of sanctions like punishing the person who did that...

ABRAMS:  Yes.

TOENSING:  ... but I don‘t think he‘s going to be let free. 

ABRAMS:  We shall see.  I think this may be a little more trouble in this case than we—but look, they would have sent him back...

TOENSING:  I‘ll come back and say I told you so...

ABRAMS:  Yes.  All right.  Look, I‘ll be glad to have you do it.  So Victoria, good to see you again.  Thanks a lot.

Coming up, Koko the gorilla got famous for learning to talk in sign language.  Now two women say she used that language to tell them to take off their shirts.  They were fired they say when they refused.  They are suing—their lawyer about whether this lawsuit was a good idea.

The case against Michael Jackson largely based on his accuser‘s allegations.  We‘ve got an exclusive report.  Turns out not the first time the boy has accused someone of abuse.  We‘ve got the details that could be crucial to Jackson‘s defense.

(COMMERCIAL BREAK)

ABRAMS:  It‘s one of the strangest lawsuits I‘ve seen in a long time.  Two former caretakers for a 300-pound gorilla that allegedly speaks sign language filed a $1 million sexual discrimination, a wrongful termination suit against The Gorilla Foundation that cares for Koko and foundation president, Francine Patterson.  Nancy Alperin and Kendra Keller claim Patterson pressured them to perform bizarre sexual acts with Koko.  That Patterson interpreted Koko‘s hand signals and told them Koko demanded they remove their clothes and show him their breasts. 

They also say they suffered sexual discrimination and harassment, a hostile work environment and that they were fired after they reported filthy and dangerous working conditions at the foundation.  The foundation‘s attorney has denied the allegations and say the case has no merit. 

“My Take”—this may be one of those lawsuits where you have to think long and hard before making the allegations.  Even if your life dream was to work with gorillas, if someone asks you to, as they in their claim, indulge Koko‘s nipple fetish, you might want to wrap up that chapter of your life and move on. 

Stephen Sommers is the attorney who‘s representing the women suing the Gorilla Foundation.  Thanks for coming on the program.  Look, you make a number of allegations here in the lawsuit.  Some of them, you know, I don‘t find it—some of them are more serious in my view than others.  But isn‘t this one of those allegations where, for the future of these women, et cetera, for their career in this business, to basically say that there is a gorilla making hand signals, demanding that they show their breasts, that that‘s one of those things you might want to just say you know what?  Maybe that‘s not such a great grounds for the lawsuit? 

STEPHEN SOMMERS, ATTORNEY FOR WOMEN SUING THE GORILLA FOUNDATION: 

Before we get into all that, I‘d like to say that Kendra, Nancy are—love Koko (UNINTELLIGIBLE) and this lawsuit is not about bringing down the Gorilla Foundation.  In fact, this lawsuit is about stopping the unlawful employment practices that creates such an existent turnover at the Gorilla Foundation that there is concern that the lack of consistency with caregivers creates a direct stress to the animals. 

This lawsuit, I think if taken in any other context, where not Koko, but the employer, the president, essentially the CEO of the company, is repeatedly telling these women to remove their clothing.  They tell them to remove their clothing.  They refuse.  Dr. Patterson tells them to remove their clothing again.  They refuse.  Again, they refuse.  After a certain point, that becomes a hostile work environment. 

ABRAMS:  Why would they want to work there?  I mean this is a situation where you‘re saying that they were fired in essence in part, at least, because of their refusal.  Why would they want to work at this place? 

SOMMERS:  They were not told during the interview and before they began to work there that this would be a requirement of their job.  It was only after they began working there that they started experiencing the filthy and dangerous conditions, these sorts of strange requests.  They were working beyond their breaks, through their breaks and beyond their shift without overtime compensation.  And they kind of put it in...

ABRAMS:  But that‘s a contract issue.  I mean you know, either—look you‘re saying you‘re working through your breaks, you know, I don‘t think you‘re going to get a whole lot of sympathy about that.  A lot of people work—have to work through their breaks. 

SOMMERS:  No, I understand what you‘re saying.  But taking it to the largest context where they felt like they can‘t stand up for their rights without the Gorilla Foundation tainting them as anti-Koko or anti-Gorilla Foundation, and this is not an isolated incident.  What has happened since we filed this suit is a number of different employees have come to us saying this has happened to us, too. 

That we‘ve worked in very stressful conditions here and that we would like to see these practices end as well.  So, this is not an isolated case.  And if this was any other environment where the boss was telling the employees to perform this sort of act, this would be...

ABRAMS:  They claim—you know, any other—yes but any other environment, you‘re not talking about a gorilla supposedly asking to see women‘s breasts, I mean right? 

SOMMERS:  Well, let‘s put it this way, Dan.  If your wife or girlfriend, daughter was working somewhere and the boss came to her and said we have a customer that really likes breasts...

ABRAMS:  You consider the gorilla a customer? 

SOMMERS:  Well there are—well, it‘s a part of the work environment and it‘s Dr. Patterson‘s interpretation that they‘re responding to. 

ABRAMS:  All right.  All right.  I hear you.  Stephen Sommers, thanks for coming on the program. 

SOMMERS:  And Dan one more thing before...

ABRAMS:  Very quickly, yes, quickly...

SOMMERS:  ... we leave this.  This request has the same response in this context that it would in a different context.  There‘s the same shame.  There‘s the same humiliation...

(CROSSTALK)

SOMMERS:  ... and same hostility.  And so whether or not they‘re in a closed confines with a 350-pound gorilla, and we don‘t know how that gorilla is going to respond to this.  If the gorilla is trained to expect this kind of behavior, what sort of response is that gorilla going to have when it doesn‘t get that behavior? 

ABRAMS:  Yes, I...

SOMMERS:  Is that a dangerous situation or is it not and...

ABRAMS:  Look—I mean look if they‘re being forced to do something with the gorilla, you know, that‘s—it‘s just—I don‘t know.  This lawsuit is so crazy, but I hear you.  I hear you.  All right.  Stephen Sommers thanks a lot.  Appreciate it.

SOMMERS:  Thank you very much Dan.

ABRAMS:  Coming up, another ABRAMS REPORT exclusive that could help Michael Jackson‘s defense.  Turns out the boy accusing him of abuse has accused before even his own mother, but later recanted.  What does that say for his credibility? 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, another ABRAMS REPORT exclusive in the Michael Jackson case.  Turns out the alleged victim claims his own parent abused him or certainly did make that claim.  First the headlines.

(NEWS BREAK)

ABRAMS:  We‘re back with exclusive new information about Michael Jackson‘s accuser that could be a big problem for prosecutors.  Jackson was back in court today for the first time since being hospitalized.  And attorneys for both sides questioned prospective jurors.  But once again, NBC News‘ Mike Taibbi has uncovered details in this case that raise additional questions about the accuser‘s credibility.  Mike joins us live from Santa Maria with the details.  Hi Mike. 

MIKE TAIBBI, NBC NEWS CORRESPONDENT:  Hi Dan.  How are you doing?  You know, the sexual molestation part of the case against Michael Jackson is going to rest almost completely on the credibility of his accuser, of his accuser‘s brother and sister and mother.  And what we learned exclusively is that a prior allegation of physical abuse by the accuser, which later determined to be unfounded, and that other allegations of abuse by the accuser and by other members of his family were simply never pursued. 

(BEGIN VIDEOTAPE)

TAIBBI (voice-over):  In March of 1996, when Jackson‘s accuser was 7 years old, the boy became sick at school, but before his mother could be called, according to the father‘s lawyer...

RUSSELL HALPERN, FATHER‘S ATTORNEY:  The boy broke down and started crying and saying I don‘t want you to call my mother because she‘ll beat me.  She‘ll hit me. 

TAIBBI:  Documents obtained exclusively by NBC News show an investigation was begun by the Department of Children and Family Services into alleged abuse of the boy by his parents.  But the boy changed his story and the allegation was declared unfounded. 

HALPERN:  The same boy denied any hitting by the parents. 

TAIBBI:  Four years later, in 2000, as NBC News was first to report, the accuser‘s mother belatedly added on a charge that she‘d just not been beaten, but had been sexual abused by a J.C. Penney security guard after a shoplifting incident that led to a lawsuit.  The children backed her story in what a defense psychiatrist called clearly rehearsed testimony.  But the sexual abuse charge was never mentioned in an amended complaint or in the settlement J.C. Penney‘s offered without admitting any wrongdoing. 

TOM GRIFFIN, J.C. PENNEY‘S ATTORNEY:  She just came up with this fairly tale—it was not a fairy tale, it‘s a horror story, and just ran with it. 

TAIBBI:  Then the next year, 2001, police responded to an ugly argument that spilled into the street during the parents‘ bitter divorce.  At first Jackson‘s accuser and his siblings told the social worker they‘d witnessed no hitting, just yelling by their father over the years and not a lot of yelling.  During this interview, the mother was away at work. 

HALPERN:  She was angered by the fact that they came out and spoke to her children without her being there. 

TAIBBI:  But days later, with their mother present, the boy and his siblings changed that story.  Now it was daily beatings of all family members, punching, kicking, breaking bones, holding the mother‘s head underwater, constant threats to kill them all.  The mother added weeks later that she‘d observed the father inappropriately touching the couple‘s daughter when the daughter was much younger.  A domestic abuse expert says the delay in making the sex abuse charge doesn‘t diminish its believability. 

NANCY LEMON, DOMESTIC ABUSE EXPERT:  It‘s actually quite typical for sexual abuse either of the adult or of the child to be reported much later. 

TAIBBI:  But the father‘s attorney says he never heard one word about the sex abuse allegation from anyone. 

UNIDENTIFIED MALE:  He was never charged? 

HALPERN:  Never charged and I guess that it got as much attention from the prosecutors as we gave it.  It was just a rant on her part.  It was patently untrue. 

TAIBBI:  In the end, Halpern advised the father to plead no contest to one charge of spousal abuse and one charge of cruelty to a child in exchange for a sentence of probation.  No jail time, despite the dramatic allegations against him of sex abuse and physical brutality. 

(END VIDEOTAPE)

TAIBBI:  Now a protective order that is still in force bars the father from seeing his children.  He is hoping to vacate that order and to expunge his no contest pleas for those two charges for which the court found there was evidence, one count of spousal abuse, one of willful cruelty to a child.  Those convictions still stand. 

In the meantime, the prosecution is pressing its motion to limit or bar any testimony about prior litigation involving the suspect‘s family.  That testimony, the prosecution says, is being prejudicial, misleading and perhaps confusing to a jury.  The defense, of course, Dan, argues that that evidence would be completely relevant and on point. 

ABRAMS:  Mike let‘s be clear.  We‘ve talked a lot in the past about the mother making allegations, et cetera.  What you have uncovered today is that the boy himself made an allegation, correct, about his own mother abusing him. 

TAIBBI:  That is what the documents say.  The boy made an allegation when he went to school that his mother beat him and that triggered, because he said that to a mandatory reporter, a DCFS investigation, which then was followed by a home visit, interviews, the denial and finally the finding of unfounded for that allegation.

ABRAMS:  All right, Mike, once again, great work out there.  Thanks a lot.  “My Take”—another problem here for prosecutors.  This case hinges on the boy‘s credibility.  We‘ve known his mother has problems, but you know, the fact that he made accusations, I think prosecutors should be nervous as this case heads to trial. 

Joining us now, Westchester County D.A. Jeanine Pirro and criminal defense attorney Joe Tacopina, who represents one of the un-indicted co-conspirators in the case.  Jeanine, come on.  I mean you can talk about the mom, but the fact that the boy said my mom beat me, they came in, they investigated it unfounded. 

JEANINE PIRRO, WESTCHESTER COUNTY NY D.A.:  Well I think the context is important.  They wanted to call the mother because of something that happened at school and he made this claim at the age of 7.  But you know what, Dan?  I don‘t think there‘s any question that the boy is from a dysfunctional family and the truth is the person doing the beating and the abusing was the boy‘s father, so there was clearly abuse going on in that family. 

The father was convicted of being a batterer.  He is convicted of being a child abuser.  He was kept away from his children for 18 months, which means that a judge felt that he was a threat to this boy.  There is no question that this is a dysfunctional family.  But that doesn‘t mean that this boy was not abused or that he is not credible anymore.  And let me add one more thing, Dan, before Joe starts, and that is that J.C.  Penney, nor any other store, hands out $150,000 for a claim from a woman who was poor, who was basically disenfranchised unless there is some evidence. 

ABRAMS:  Yes...

PIRRO:  I mean you can‘t even take an item back...

ABRAMS:  That‘s fine...

PIRRO:  ... hold on—without a receipt. 

ABRAMS:  Right.  But maybe she—maybe they, you know, shouldn‘t have roughed her up.  But then she adds to the claim of the sexual stuff later.  That‘s the problem...

PIRRO:  I‘m sure—but I‘m sure there was a pat down of this woman, and that‘s subject to interpretation, and I‘m sure that allegation was made.  We‘re not talking about having sexual intercourse.  We‘re talking about...

(CROSSTALK)

PIRRO:  ... a sexual abuse here, which is consistent with...

ABRAMS:  I don‘t know...

PIRRO:  ... a woman feeling she is inappropriately—bottom line, his father has been convicted of being an abuser and a child abuser and there is evidence that this father was not allowed to even see his children or even...

ABRAMS:  But this was him saying...

(CROSSTALK)

ABRAMS:  But, Joe, this is him saying that his mother did it.

JOE TACOPINA, CRIMINAL DEFENSE ATTORNEY:  That‘s right, Dan.  I mean look, Jeanine, as great as she is, is sounding like the prosecutor is going to sound in an apologetic summation to this jury about why all these things really don‘t matter.  I mean they all matter terrifically, Dan, because here‘s a case that is a he said-she said case, period, end of story.  There is no independent corroborative evidence. 

What you‘re going to have here is this jury, to convict Michael Jackson, is going to have to believe this boy and in some instances, this boy‘s sibling or this boy‘s mother.  And what you have is a pattern of them making serious allegations and then recanting them, as you have in this case.  Don‘t forget, it‘s not just like they‘ll be able to—Mesereau and company will be able to go back and say, look, he made an allegation of brutality against the mother, then recanted it...

(CROSSTALK)

TACOPINA:  ... made an allegation of sexual abuse against the father, then recanted it. 

PIRRO:  No, he didn‘t. 

TACOPINA:  Yes he did...

PIRRO:  No, he didn‘t. 

TACOPINA:  One of the allegations against the father was that he was sexually abusive.  That was later recanted.  Don‘t forget...

(CROSSTALK)

TACOPINA:  ... and then you have in this case, Jeanine, they were investigated by LAPD, a great police department, who did an investigation, Child Welfare Services, the division of LAPD did an investigation about these claims and they said it never happened.  That was on the record, recorded...

PIRRO:  Even Tom Sneddon...

TACOPINA:  ... they are not going to be able...

PIRRO:  Joe, you and I both know, and as a prosecutor, I‘ve done this before, CPS can do an investigation if they even call it that.  I‘ve come back with criminal charges and gotten a conviction when they unfounded a case.  That‘s not the issue.  What you have here...

TACOPINA:  Well...

PIRRO:  ... is a boy who had cancer, he lost his spleen...

TACOPINA:  Oh...

PIRRO:  ... he lost his kidney.  Whoa, whoa, whoa...

TACOPINA:  Jeanine...

PIRRO:  ... this is a boy...

TACOPINA:  ... come on...

PIRRO:  ... with a certain amount of gravitas, Joe...

TACOPINA:  Yes, but...

PIRRO:  You come on now...

TACOPINA:  ... he‘s also...

PIRRO:  ... and what you‘ve got...

TACOPINA:  ... he‘s also—when 8 years old...

PIRRO:  ... is a sibling...

TACOPINA:  ... he was arrested for shoplifting.  I mean...

PIRRO:  ... a sibling who is corroborating what he‘s saying.  You‘ve got all kinds of evidence, including videos and stuff that was seized pursuant to the search warrant that will corroborate, plus the ‘93 victim as well. 

ABRAMS:  Jeanine...

PIRRO:  ... this is not a one-on-one Joe...

ABRAMS:  ... if that comes in, I have to tell you, because I‘ve always said that the ‘93 case seems stronger than this particular case.  But all right, final question, Jeanine, if you‘re the prosecutor, you are in jury selection, you‘re heading to trial, another thing comes out, maybe they knew about it, maybe they didn‘t, about the boy having made allegations against his mom, make you nervous or not? 

PIRRO:  No, doesn‘t make me nervous at all...

TACOPINA:  Oh, come on...

PIRRO:  ... because there is—no, there is no question this boy is from a dysfunctional family and a pedophile is going to pick a child from a dysfunctional family because he believes that they‘re not going to be believed themselves...

TACOPINA:  Hey Jeanine...

PIRRO:  ... and the proof of the pudding is that the father was an abuser and a child abuser as well. 

ABRAMS:  I got to wrap it, Joe.  You are coming back in the next segment.  Jeanine, good to see you.  Thanks. 

Last night, we told you about the Terri Schiavo case, the brain damaged woman being kept alive by a feeding tube.  Today, some big legal developments, but is there any chance that the courts will prevent Schiavo‘s husband from removing the tube?

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  Back now with “Just A Minute”, where I lay out today‘s other legal stories.  My guest has a minute to discuss each one with me.  Back with us, criminal defense attorney Joe Tacopina. 

A Florida court ordered Terri Schiavo‘s feeding tube not be removed until at least 5:00 p.m. tomorrow.  Schiavo‘s husband asserts his wife would not want to continue living in her condition and wants the tube removed.  Her parents have been fighting to keep her alive, saying her condition can improve.  Both sides have been battling over this case in court for seven years; so far the parents have lost just about every fight. 

Question:  So is there any chance that this latest court decision could change the ultimate outcome if the tube is removed, Joe? 

TACOPINA:  I don‘t think so, Dan.  I mean look, the person that is fighting for the removal is her husband.  It‘s not her friend or her sister.  So, I think his rights or his ability to speak on her behalf will trump those of the parents and I think it‘s just a temporary stay.  And, you know, quite frankly, (UNINTELLIGIBLE) think it‘s the right thing because it has been about 15 years and, you know, it just doesn‘t look like there‘s any progress at all.  As a matter of fact, it looks like it‘s going the other way. 

ABRAMS:  Well that‘s right because the medical assessment has been that she is in a persistent vegetative state...

TACOPINA:  Vegetative state...

ABRAMS:  ... and as a result, she is not going to get better.  And the judicial assessment has been that she told her husband, possibly among others, that she wouldn‘t have wanted to live this way. 

TACOPINA:  Right...

ABRAMS:  And that‘s the problem that this family—the parents are having. 

TACOPINA:  Exactly and you know, that‘s what the law is.  I mean that‘s why you have these living wills and I think that‘s why ultimately she‘ll be granted her wish.

ABRAMS:  Yes.  She didn‘t write it down, but still the court ruled that there was enough evidence...

(CROSSTALK)

ABRAMS:  ... to believe that‘s what she said.  All right. 

Issue two:  Joseph Scarpino got a concussion and a chipped tooth, but not his pizza.  (UNINTELLIGIBLE)

TACOPINA:  (UNINTELLIGIBLE)

ABRAMS:  He was waiting in an Ohio pizzeria when Prestia Sims apparently cut him in line, Scarpino spoke up.  Sims started yelling.  A manager asked her to leave.  She answered him with a wad of spit.  She then she went outside and got her boyfriend, that guy, 6 ‘4,” 295, Mark Jones.  Jones took it upon himself to beat Scarpino up.  Jones charged with felonious assault and sentenced to four years. 

His girlfriend also being charged with felonious assault for spitting on the pizza pallor manager.  Question:  Is it fair she is being charged with the same offense as Jones, even if what she did was deliver a spitball while he was delivering a punch? 

TACOPINA:  Yes.  I mean that‘s the law.  The law of acting in concert is just that.  You are acting in concert with someone else.  She doesn‘t have to be the one, you know, striking those blows.  She is the one who clearly instigated the problem. 

She is the one who went out and got that monster to come into the pizzeria and do what he did.  She is the one who—she assaulted him in a sense by committing battery, by spitting on him.  So I mean she is equally as guilty, quite frankly, if not more guilty...

ABRAMS:  What if—Joe, what if she hadn‘t—what if we found out later that she had just said to him, look, come in here, they‘re being mean to me and he took it upon himself to beat—oh, god, that punch.  That wouldn‘t have mattered. 

TACOPINA:  No, it—well no, that would have mattered because if she‘s not—look, what she did was she went out—not only did she go out to get him, she went out got him, used her racially, you know, exploitative term and pointed him out and said get him.  Like—almost like she got her pit bull or something and said get him.  Kick his ass or whatever the heck she said and that‘s what started this problem.  So, the fact that she instigated and initiated the beating makes her equally guilty.  If she had just said they‘re being mean to me and he took it upon himself to beat him...

ABRAMS:  All right, out of time...

TACOPINA:  ... it wouldn‘t count. 

ABRAMS:  Joe, good to see you again. 

TACOPINA:  Hey Dan.  Thanks buddy. 

ABRAMS:  Coming up, why I think it‘s time for Supreme Court Justice William Rehnquist to retire from the bench.  It‘s my “Closing Argument” coming up. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, why I say it‘s time for Supreme Court Justice William Rehnquist to retire from the bench.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why I have to say reluctantly that it is time for Chief Justice William Rehnquist to give up his post as the chief justice of the Supreme Court.  When the court reconvened today after its winter break, the 80-year-old chief justice was absent again.  He is now been away from the bench for four months as he undergoes treatment for thyroid cancer.  He announced last week he still wasn‘t ready to come back and was suffering side effect from chemotherapy. 

With crucial cases looming on the court‘s calendar in the coming weeks, it seems unfair to the country for someone in his condition to remain in such a vital public position.  A consistently empty seat on that court suggests at the least that the oral arguments with questions from the justices mean little.  Even worse, when that empty seat belongs to the chief justice, responsible for everything from assigning opinions to overseeing the federal judiciary of this country.  Reading transcripts and briefs at home just can‘t be good enough. 

Look, I know firsthand what it feels like to be diagnosed with cancer and to want more than anything else to return to work.  Rehnquist‘s personal position is completely understandable, but in this case, it shouldn‘t be about the personal.  Rehnquist defenders would say that he doesn‘t want to leave the court with just eight members while Congress battles over a nomination, leaving open the real possibility of some 4-4 votes this term. 

But that‘s a price we should be willing to pay to ensure that all members of the court are fully able to participate in the most important decisions facing our nation.  Any 4-4 votes could be reargued when a new justice is confirmed.  This is not about age or cancer.  He‘s not the court‘s oldest justice.  Justice Stevens is 85.  And he‘s not the first justice to suffer from cancer. 

Stevens and both Ruth Bader Ginsburg and Sandra Day O‘Connor were all treated for cancer in recent years, but all of them were back on the bench within weeks without missing oral arguments.  Look, Rehnquist‘s legacy is already well established.  He has a legendary career of over 30 years.  He has authored some of the court‘s most significant opinions and has presided over five presidential inaugurations.  In fact, I think it‘s safe to say that history will likely judge him the most important justice of those currently serving on the court.  But it seems time for him to make the toughest decision of his career.  To rule that he no longer is able to give what it takes to be the chief justice of this nation‘s highest court. 

Coming up in 60 seconds, why this car crash is tonight‘s “OH PLEAs!”.

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night the heart-wrenching story of Terri Schiavo who has been in a coma, kept alive by a feeding tube for 15 years in what doctors have called a persistent vegetative state.  Courts have ruled she made it clear she‘d rather die than live that way.  Her parents say she can improve with therapy and should be allowed to live.  It looks like the feeding tube could be removed in the next few days.  I said I think it is time for everyone involved to accept this battle is over. 

From Teaneck, New Jersey, Charisse Viscomi, who‘s a nurse in a nursing home.  “Terri Schiavo‘s parents are selfish and nobody would ever want to live like this whether they talked about it beforehand or not.”

Nina in Olympia, Washington.  “Take a look at the beautiful intelligent looking woman she once was and then feel your pain as you see how she looks now.  Could Terri know what is going on?  I feel certain she‘d be deeply touched by her parents well meaning efforts, but also mortified and humiliated.”

From Raleigh, North Carolina, Terry Maupin.  “Her husband and the Florida Supreme Court want to starve her to death.  That‘s a process that will take weeks to accomplish.  It seems very inhumane.  More compassion is shown to criminals executed by lethal injection than is being given to this poor woman.”

You know, Terry, I agree with you about that.  But as you know, legally they can‘t inject her.  I agree that it would be more humane, but I don‘t know what else to do. 

Also last night, five male hockey players from Milton Academy Prep School in Massachusetts being investigated for reportedly receiving oral sex from a 15-year-old student in a locker room.  The boys are 16 to 18, were expelled from school.  The female student put on administrative leave.  The boys now face possible charges, which would carry a punishment of up to life in prison.  They haven‘t decided whether to charge them.  I said if this girl consented and was not forced to participated, the boys shouldn‘t have been expelled from school and prosecutors should use their discretion and choose not to prosecute. 

James Holder at the University of South Carolina.  “It would be impossible to force someone to perform oral sex five different times to five different people.  These are high school kids.  Give them a break.”

Becca Gottlieb in Philadelphia.  “Massachusetts‘ legislators are obviously unaware of how sexually advanced the average 15-year-old girl is in this day and age.  If she consented, why destroy the lives of these five boys who as so many teenagers do made an error in judgment.”

Linda Welch though writes, “These young men should know better and if they don‘t, they need to be taught.  It‘s our job to protect those who haven‘t reached an age to protect themselves.  Shame on your panel for not defending this girl.”

And she doesn‘t need to be taught?  If this was consensual, this is high school students acting foolishly.  And they should have to answer to their parents and maybe any higher authority they believe in.  But are you saying she needs protection just because she‘s a girl?  Remember, three of these boys were sophomores, most probably 16 years old, at least some of them. 

Finally, William Doritty.  “Let‘s do the math.  No girl wants to do that to five guys in a row, let alone in a dirty stinking locker room.  All five should be prosecuted.”

Well apparently she was giving one of them a birthday present.  It turned into somebody ended up getting a lot worse. 

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

“OH PLEAs!”—why the word highway shouldn‘t be taken literally.  A 23-year-old had some trouble at the scene of an accident in Knoxville, Tennessee.  Police officer Dennis Bible attending to a car crash on accident-prone I-275, parked his cruiser on the shoulder and began investigating the accident when the victim of the crash and the (UNINTELLIGIBLE) went oh—the squeal of tires made the group look up in the nick of time. 

An SUV swerved off the road, smashed into Bible‘s car.  The driver of the SUV, 23-year-old Justin Fine, apparently just needed a hit not from his car, but you know what I‘m talking about.  Fine may have been staring at grass too long.  Not talking about the kind that grows on the side of the road.  He was allegedly rolling a joint when he hit the cruiser.  Fortunately, no one was injured, but Fine charged with reckless driving and possession of marijuana gives a new meaning to taking the highway. 

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

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

Content and programming copyright 2005 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2005 Voxant, Inc. ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and Voxant, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

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