updated 2/25/2005 10:33:12 AM ET 2005-02-25T15:33:12

Guest: William Fallon, Ronald Richards, Butch Bradt, Anne Bremner, Phill Kline, Janlori Goldman

DAN ABRAMS, HOST:  Coming up, the Michael Jackson jury is set.  The alternates seated.  Opening statements are set for Monday.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Twelve jurors and eight alternates will be there.  Most are parents.  They range in age from 19 to 81.

And a teacher‘s affair with her 13-year-old student leads to a custody battle over their baby girl.  Obviously she is a convicted sex offender, but she‘s got a new boyfriend, and so now the boy‘s family is fighting back. 

Plus, a state attorney general asks for medical records of dozens of women who had later term abortions.  He says he wants to find out if any of them were raped.  But is this really about getting access to abortion records? 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  We‘re going to get the latest on the Pope‘s condition in a few minutes.  First up on the docket tonight, jury selection is over in Michael Jackson‘s child molestation trial.  Opening statements will be on Monday.  Twenty Santa Barbara county residents have been sworn in.  Lawyers chose eight alternates today, four men and four women, including an 81-year-old mother of four adults and a 19-year-old African American man.  Add them to the 12 jurors that were chosen yesterday, four men and eight women between 20-79. 

“My Take”—I have to admit, I cannot believe this case is finally going to trial.  Joining me now, former Essex County prosecutor Bill Fallon and criminal defense attorney and NBC legal analyst Ron Richards, who‘s worked with Jackson‘s attorney in the past. 

All right.  Let‘s go through some of the issues that we now know about these jurors.  We talked about a lot of this last night, but there were a number of issues we couldn‘t get to.  Let me go to number four here and this is the fact that four of the actual jurors here or their relatives or friends have been diagnosed with cancer.  Now, remember, Bill Fallon, you know, this is a case where the boy had cancer and that‘s the reason he presumably met Michael Jackson.  How does that play? 

WILLIAM FALLON, FORMER ESSEX COUNTY MA PROSECUTOR:  I think it plays well for the prosecution in this way because I think that for me it‘s going to be one of those issues that everybody is going to say, why did this crazy mother let this kid do anything?  Remember, from what we know of this case, this boy was taken to some other celebrity, comedian or something, who then put him in touch with “Wacko Jacko”.  Now the question is these jurors are going to have to say why did a mother do that—because she was trying to help her cancer-ridden son.  And I think it‘s going to play a little for the prosecution.  I mean it‘s never a good fact that anybody lets anybody go with Jackson, but they‘re going to have some sympathy that people do everything for a victim of cancer that they can. 

ABRAMS:  All right, what do you make of it, Ron? 

RONALD RICHARDS, CRIMINAL DEFENSE ATTORNEY:  Well I think Jackson will be portrayed as a modern day Mother Teresa and the evidence will show that he‘s helped countless children with cancer and that I think it‘ll actually help the defense because those children may come and testify. 

ABRAMS:  I got to tell you I really hope for the defense‘s sake they don‘t try to portray him as a modern day Mother Teresa.  I think it‘s going to get him into a lot of trouble, Ron.

RICHARDS:  Well he‘s really done a lot for children, Dan...

ABRAMS:  Maybe...

FALLON:  Did Mother Teresa have her naked book—I would really be curious, does she have the book in 1993 that‘s going to come into the naked boys?  Because Ron, I think that‘s going to be a problem if they go down that road. 

ABRAMS:  Yes, I agree. 

FALLON:  She didn‘t sleep with little kids either. 

RICHARDS:  Well they were actually confiscating the pornography from the alleged victim in this case and that‘s why it was locked up because he kept using it. 

FALLON:  Well of course and he was a child and where did he get it?  From Mr. Jackson and he had to be shown it.  I mean I wouldn‘t want to be saying that the kid—it was the kid‘s pornography in Jackson‘s house. 

ABRAMS:  Yes.

FALLON:  I mean this is the question that you have. 

ABRAMS:  All right.  Let‘s move on.  Issue two.  Their family orientation—you got 8 of the 12 jurors are women, 8 of the 12 are parents, 7 of the 12 are married.  Six jurors are mothers.  Two jurors are fathers.  Again, which way is being a parent you think going to cut, Bill?  I mean on the one hand, you could say well you know, maybe they‘ll be nervous for their own children, they think oh my—but I think some parents are going to be very hard on this mother for putting her boy in the situation. 

FALLON:  Dan, I absolutely think so, although I think parents are going to say—this is where that question is going to come in, would you have done this?  If you are the prosecution, you have to say, bad choices were made.  The worst mistake this prosecutor could make is suggesting that this mother shouldn‘t have been on guard.  She wasn‘t on guard.  That‘s the mistake.  She subjected herself to risk, her child to risk, and that‘s what they‘re going to have to go with.  And I think that the parents are going to say—be judgmental—women tend to be judgmental of rape victims.  They don‘t be—they are not so judgmental of victims of sexual abused children, but that is going to be the problem judging the mother here.  Prosecution has to keep it away from that. 

ABRAMS:  Yes.  What do you think of the parent factor, Ron? 

RICHARDS:  Well, I think the parent factor is good for the defense because parents know that kids sometimes embellish or lie.  They—I agree with my colleague, they are not going to like the mother at all and a lot of evidence is going to be coming in against her.  And the critical thing is none of the jurors except for the 79-year-old juror 100 have any prior jury experience in this case.  That‘s very helpful for the defense. 

FALLON:  I don‘t know that‘s it‘s helpful for the defense, Ron.  I mean I think that they‘re going to be so clear that they want this to be their big experience.  I mean I think that the mother is going to be on trial here.  I think parents are not going to look at a kid this age and say they‘re going to embellish and make up stories.  I mean they could say that if the kid comes out like that.  I think they‘re all going to be saying if my kid was suffering from cancer, maybe he would do this and this is what happens.  I mean I think it‘s good to have parents on there for both sides. 

ABRAMS:  Now Ron, last night we had a big debate on the show about the fact there were no African Americans on the actual jury.  You know, my position had been Michael Jackson chose to live there.  This is a community with almost no African Americans.  I don‘t know sort of what they expected.  They didn‘t make a change of venue motion. 

Now one of the alternates—and let‘s pull up number five here—juror alternate number seven is an African American.  A 19-year-old African American male, single with no kids.  Delivery boy who wants to be a dentist, just completed his first semester at a community college, knows a little about this case.  Said he knew nothing about the ‘93 case. 

He liked to do the moonwalk with his brother.  Is that going to change, do you think the public perception?  Let‘s assume for a moment that this juror never makes it onto the actual jury panel.  Do you think it will still sort of reflect upon the jury pool, panel that there was at least an African American as an alternate or does it not matter? 

RICHARDS:  It—I totally agree with you, Dan.  It is not an issue whatsoever.  The defense never even made a motion to have the jury be expanded to include south Santa Barbara County.  The defense has never made race an issue in this case.  I don‘t know why the media is reporting it. 

ABRAMS:  Well I‘ll tell...

RICHARDS:  It‘s not an issue in this case.

ABRAMS:  I‘ll tell you why.  Because we had a couple of guests on the show last night who were insisting that this was unfair to Michael Jackson. 

FALLON:  Hey Dan...

(CROSSTALK)

FALLON:  ... is he even black...

(CROSSTALK)

FALLON:  I mean...

RICHARDS:  Those guests were mistaken.  The fact that you have a right to be tried by a jury of your peers does not mean that you have a right to be tried by the people from your same race...

ABRAMS:  Yes.

RICHARDS:  ... only if you...

(CROSSTALK)

RICHARDS:  ... use race to remove jurors. 

ABRAMS:  As I said last night, there is no right to have a jury of your peers anyway, just a jury of people...

RICHARDS:  I agree. 

FALLON:  And there are no peers...

RICHARDS:  You‘re right.

FALLON:  ... for Michael Jackson and I‘m not even sure what race he is and I think that that‘s something people throw out.  Remember, until he got charged, did he then start to get this whole group of black people around him.  I know he‘s friendly with Quincy Jones, but I‘d suggest that he is nonracial.  His identity is as (UNINTELLIGIBLE) generous of himself and I don‘t think it matters whether it‘s black or white.  I think that‘s what his song said.

ABRAMS:  Go ahead Ron, you wanted to respond? 

RICHARDS:  Well I think it is a little below the belt to try to make him not to be an African American.  He has a skin disorder council, but I think that Michael Jackson is—expects to be treated fairly by the jury that was picked.  And this is a great jury, full of diverse individuals from a very open-minded community. 

ABRAMS:  Bottom line, Bill Fallon, do you think it‘s generally a good jury for the prosecutors? 

FALLON:  I think it seems to be a fair jury, Dan.  That‘s—I mean I like the make-up.  I don‘t know that—which way it‘s going to go, but it seems like a fair mix of a jury. 

ABRAMS:  It sounds like Ron thinks the same thing.  Ron Richards thanks a lot.  Appreciate it. 

RICHARDS:  Thank you.

ABRAMS:  Coming up, the latest on the Pope‘s condition after his emergency surgery just hours ago. 

And she was convicted of having sex with a 13-year-old student.  Then she had his baby.  Now they are fighting it out in court over who should get custody of the little girl. 

And the Kansas attorney general wants medical records from nearly 90 women who had legal late-term abortions.  He says he wants to see if they were the victim of a crime, but does he have an ulterior motive? 

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, we keep hearing about adult teachers having sex with male students, but what about when they have a baby?  One teen‘s family is in court, fighting over the custody of the baby girl he had with his teacher, coming up.

(COMMERCIAL BREAK)

(NEWS BREAK)

MILISSA REHBERGER, MSNBC ANCHOR:  MSNBC keeps you up to the minute every 15 minutes.  I‘m Milissa Rehberger—the latest now on Pope John Paul.  The Vatican says he underwent a successful tracheotomy at a Rome hospital to relieve breathing problems.  He‘s reportedly breathing now with the help of a respirator.

NBC‘s Charles Sabine joins us now with details.  Hello, Charles.

CHARLES SABINE, NBC NEWS CORRESPONDENT:  Yes, good evening, Milissa, from Vatican City where tonight a short but significant statement confirmed that indeed Pope John Paul II had undergone a tracheotomy operation tonight in the Gemelli Hospital on the outskirts of this city.  The statement went on to say that the operation had indeed been a success, but that the Pope would spend the night at Gemelli under observation. 

A hospital spokesman said later on that the operation, which involves a hole being made in the throat and a tube inserted to help breathing had taken about 30 minutes and that afterwards, the Pope had expressed his thanks to the surgeons who had conducted the operation.  After suffering from breathing difficulties after a bout of flu earlier this month, the Pope had been showing signs of recovery, but this morning he was unable to attend an important Vatican meeting and then was rushed to the hospital at 10:45 local time. 

It soon became apparent that he was suffering once more from both fever and the breathing difficulties, which are made more acute by the Parkinson‘s disease from which the Pope suffers.  It is not expected that we will be hearing any more official statements from the Vatican tonight on the Pope‘s health, but they are expected to be giving a fuller statement tomorrow morning. 

Now back to you Milissa.

REHBERGER:  All right.  NBC‘s Charles Sabine at the Vatican.  Thank you very much for that update.  Now we go back to THE ABRAMS REPORT.

ABRAMS:  We‘re back.  A bizarre custody battle is underway in Houston right now between a 16-year-old student and his former teacher.  Two years ago Lisa Zuniga Duran, already pregnant, pleaded guilty to aggravated sexual assault.  Now her former student says he wants to raise the child that he says he fathered. 

Phil Archer with our Houston affiliate KPRC has the story. 

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE:  You know, I feel like someone else is taking her away from me. 

PHIL ARCHER, KPRC-TV REPORTER (voice-over):  His childhood ended when he was sexually assaulted by a teacher but he wants a better life for the baby he says was conceived in that abusive relationship. 

UNIDENTIFIED MALE:  That‘s the past.  You know, I look at it—I look at the future, you know, now I have a responsibility to, you know, to take care of, you know, I got a little daughter. 

ARCHER:  The baby was born after her mother was convicted of sexually assaulting the boy and sentenced to 10 years probation.  Lisa Zuniga Duran was a 27-year-old teacher at the Victory Academy, a church school in Pasadena.  The boy was a 13-year-old student. 

UNIDENTIFIED FEMALE:  There‘s no way to describe the pain that I went through and what I‘m still going through. 

ARCHER:  His family was willing to allow Duran to raise the child as long as she was supervised by her mother and they were allowed visitation.  But the family says that changed last June. 

UNIDENTIFIED FEMALE:  She never had no problem with us having any type of visitation with the baby.  She met a guy, got married, and totally cut us off. 

ARCHER:  The family‘s lawyer say there‘s another problem.  The baby‘s mother is a registered sex offender. 

UNIDENTIFIED MALE:  Convicted sex offenders don‘t have unsupervised access to children in this state. 

ARCHER:  Even their own children. 

UNIDENTIFIED MALE:  Even their own children. 

(KNOCKING ON DOOR)

ARCHER:  There was no sign of Duran or the baby at her home today.  The boy‘s family is asking for an injunction to give his mother sole custody of the little girl.  The family wants to raise her until the boy is old enough to care for her himself. 

UNIDENTIFIED MALE:  If we get her, you know, she would know who her father is, you know, and she would get to call me, you know, dad. 

(END VIDEOTAPE)

ABRAMS:  That was Phil Archer with our Houston affiliate KPC—KPRC.  When we come back, the boy‘s attorney joins us live.  I will tell you “My Take” on that story as well in a minute. 

And a Chicago man is suing for emotional distress because a former lover used his sperm to have a baby.  He says they never even had sex.  She says the sperm she was able to get was a gift to her.

(COMMERCIAL BREAK)

ABRAMS:  We‘re back now with more on a Houston custody battle between a 16-year-old boy and his former teacher, the mother of his child, same woman who pled guilty to sexually assaulting him over two years ago.  She is a convicted sex offender and has custody of their child.  He‘s fighting to get his baby back. 

“My Take”—she has to give him visitation, all right, but she‘s also been the custodian for this child for two years.  I‘d be very reluctant to take this baby away from her now.  The boy and his family apparently agreed to let her care for the baby and absent a major change in circumstances she should probably continue to care for that child. 

Joining me now is Butch Bradt, the attorney for the 16-year-old student who we just saw in that piece and Anne Bremner, an attorney for another convicted child molester, Mary Kay Letourneau.

All right, Mr. Bradt, what is the—I mean is the bottom line here that you‘re saying because he doesn‘t get visitation, everything has changed? 

BUTCH BRADT, 16-YEAR-OLD STUDENT‘S ATTORNEY:  No, it‘s beyond that.  She married a 21-year-old and cut us off from any access to the child and has apparently contacted an attorney about seeing—taking steps to have her husband adopt this child. 

ABRAMS:  What‘s the matter with that? 

BRADT:  That is ignoring my client‘s rights.

ABRAMS:  Right, but I mean he wouldn‘t be able to adopt him without your client agreeing to it.  I mean no judge is going to sign off on an adoption without your client having signed off on it and sounds like she‘s a mother who‘s trying to put together a family. 

BRADT:  She is a convicted sex offender...

(CROSSTALK)

BRADT:  Sex offenders don‘t have custody, unsupervised, of children in Texas. 

ABRAMS:  So why did the mother of this boy and, I guess presumably the boy at the time, agree to let her have custody?

BRADT:  It wasn‘t a question of agreeing.  We were not part of the criminal proceedings except to the extent that my client was the victim of 30 rapes. 

ABRAMS:  And so how was custody determined?  I mean there were two parents still. 

BRADT:  The criminal proceeding is not a custody proceeding. 

ABRAMS:  Right. 

BRADT:  She pled guilty. 

ABRAMS:  Right. 

BRADT:  And as part of the conditions of probation, she was allowed access to this child.  It‘s not a custody determination. 

ABRAMS:  Wait.  Wait.  Did your client or his mother fight to have that child at the time? 

BRADT:  Not at that time...

ABRAMS:  OK.

BRADT:  ... because all he is the victim of the crime. 

ABRAMS:  Wait a sec.  But it still—but he is still the victim of the crime and now you‘re saying he should get custody. 

BRADT:  I‘m saying that yes, his mother should get custody, as the grandmother, and when he turns 18, he should have custody of the child. 

ABRAMS:  Right, but I mean you‘re switching your—on the one hand, you say well of course he didn‘t ask for custody at the time.  He was the victim and now he‘s still underage and he‘s still the victim and you‘re saying now he does want custody.  I mean there‘s clearly a change in circumstances here.  Look, if the mother is not giving him visitation, I‘m with—I mean I think she‘s got to, but at least you just got to admit what the issue is, is that they never fought for the kid back then and they want it now. 

BRADT:  There was no way to fight for it back then as part of the criminal case. 

ABRAMS:  Why do you keep referring to the criminal case?  You can always fight for custody apart from the criminal case. 

BRADT:  And that‘s what they are doing now. 

ABRAMS:  But why didn‘t they do it then? 

BRADT:  At that time the situation was that the maternal grandmother was going to be supervising and help raise the child.  They were comfortable with that because they know the lady.  She‘s been taken out of the picture. 

ABRAMS:  All right, Anne Bremner, if that‘s the case—now here—finally getting to the heart of the matter here...

ANNE BREMNER, MARY KAY LETOURNEAU‘S ATTORNEY:  Right.

ABRAMS:  If grandma is no longer part of the equation and she wants to move in with new hubby, it‘s a problem in the sense that she‘s a convicted sex offender. 

BREMNER:  But, Dan, you know, I agree with everything you said in your analysis.  In a case like this, you know, they could have made this part of the criminal case.  In Mary Kay Letourneau‘s case and I was the attorney in a civil case in Seattle, it was part of the criminal case.  And guess what, she appealed and it was found by the appellate court that she didn‘t need to have supervision with her own kids and that she was able to see them. 

ABRAMS:  But the bottom line is...

(CROSSTALK)

ABRAMS:  ... here‘s the position that I think that they are taking, is that the circumstances have changed.  The bottom line is...

BREMNER:  Right. 

ABRAMS:  ... mom is suddenly saying you can‘t visit the kid and grandma is leaving the picture and as a result, the family is now coming in and saying, OK, you know—Mr. Bradt isn‘t saying this, but I think that they‘re saying effectively that...

BREMNER:  Right.

ABRAMS:  ... we were OK with it before, we‘re not OK with it now. 

BREMNER:  Well there are two things, Dan.  Number one is what they are

really saying and what they‘re saying is—they have said she‘s a pervert

and she shouldn‘t have the child who is 18 months old.  And there should be

·         that that child shouldn‘t be with her unless there is a change of circumstances, like you said.  Now, there should be visitation.  Should there be supervision?  That is the second question, because this child should not be taken away under the circumstance from the mother.  It‘s in the best interest of the child.  So the second thing is should there be supervision and I say the answer is no because she‘s not dangerous to anybody else. 

ABRAMS:  Yes, that‘s going...

BREMNER:  She‘s not dangerous to her own child...

ABRAMS:  Yes, that‘s going to be tough...

BREMNER:  (UNINTELLIGIBLE) but with women offenders...

ABRAMS:  Yes.

BREMNER:  ... you‘re not finding them predatory with other victims, Dan.  We have talked about this before.  And we‘re not finding that they have multiple victims including their own children, and so I‘m just saying...

ABRAMS:  Mr. Bradt...

BREMNER:  ... in Mary Kay Letourneau‘s case...

ABRAMS:  ... let me—Mr. Bradt...

(CROSSTALK)

ABRAMS:  ... what is there is—what if grandma or someone else does supervise and what if they resume visitation, are you going to give up the custody fight? 

BRADT:  Well first thing we have to do is to have my client determine to be the father of that child...

ABRAMS:  All right...

BRADT:  ... because that hasn‘t been determined.

ABRAMS:  All right, assuming that happens...

BRADT:  And once that happens, then we‘ll see what bridges we cross, but this double standard that just because she is the mother of the child and she is a woman—she is a convicted sex offender.  She is a predator.  She had sex with this child 30 times.  No man would have access to any child his own included.  That‘s outrageous. 

ABRAMS:  All right.  Butch Bradt, Anne Bremner, thanks a lot. 

Appreciate it. 

BRADT:  Thank you. 

BREMNER:  Thanks Dan.

ABRAMS:  Coming up, state attorney general asks for medical records of dozens of women who had late-term abortions, says he wants to find out if any of them were raped, but he is also an outspoken opponent of abortion.  What‘s his motive here? 

And Martha Stewart is set to get out of prison next week, but her attorney is already talking to the feds to see if she can run her company again.  Can she do that? 

Your e-mails—she can obviously talk to them, but did she forget—abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  I‘ll respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, the Kansas attorney general is seeking medical records of patients who received late-term abortions.  Can he do that?  He joins us live—first, the headlines.

(NEWS BREAK)

ABRAMS:  We‘re back.  Kansas Attorney General Phill Kline launched a controversial secret investigation into two abortion clinics last year demanding nearly 90 complete sets of medical records all from either girls under the age of consent, 16 in Kansas, or from women who had their abortions at least 22 weeks into their pregnancies.  Under the terms of the subpoena, all this had to be kept secret.  The clinics weren‘t even allowed to tell the patients.  The state demanded their records.  But at a news conference today, Attorney General Kline said he was just trying to enforce state laws banning underage sex. 

(BEGIN VIDEO CLIP)

PHILL KLINE, KANSAS ATTORNEY GENERAL:  There are two things that child predators want—access to children and secrecy.  And as attorney general, I‘m bound and determined not to give them neither.

(END VIDEO CLIP)

ABRAMS:  But attorneys for the clinics that got the subpoenas are fighting back.  They say a client wants the—quote—“most intensely private information a woman can disclose.  That the subpoenas violate the privilege patients and physicians have to keep medical records secret and that he failed to show a compelling need for all the information in the records.”

In a brief before the Kansas Supreme Court, they claim “the logical and natural progression of this action could well be a knock on the door of a woman who exercised her constitutional right to privacy.  All this comes after Planned Parenthood fought Kline‘s efforts two years ago to notify health providers to notify the state if they had any knowledge that girls under 16 were having sex.  That case is still pending. 

As for this one, “My Take”—there has got to be a more targeted way to get the information that attorney general client is seeking.  I understand the laws in Kansas, but this is effectively making the girls and women the criminals, subjected to the investigation.  This seems to me that this is an effort to discourage women from getting abortions.  But let‘s see. 

Kansas Attorney General Phill Kline joins us, as well as Janlori Goldman, director of the Health and Privacy Project, a research scholar at Columbia.

All right, Mr. Attorney General, what am I getting wrong here? 

KLINE:  Well, a couple of things, Dan, and I appreciate the opportunity to be here.  First of all, the privacy of these children is of utmost importance and in fact, the nature of the proceeding was such that their privacy would be protected.  You never see the name of a child victim in the paper who has been raped. 

Now the reality is that right of privacy does not outweigh the need for us to investigate child rape to prevent future rapes and also to extract that child from a dangerous situation.  That is our obligation as law enforcement officers.  And in this instance, what has happened is as with something that happens every day, by the way, in our nation, a district court judge has reviewed evidence and found reason to believe there is evidence of a crime and issued a subpoena.  There is much more sensitive information that is obtained every day in criminal investigations. 

ABRAMS:  But you would agree, right, that this includes, let‘s say, two freshmen in high school who have sex and the girl goes and gets an abortion.  You want the records to prosecute that case, right? 

KLINE:  Well there‘s—no, not necessarily.  There‘s a couple of things about that.  First of all, you don‘t know if we‘re talking about that situation.

ABRAMS:  But we don‘t know...

(CROSSTALK)

ABRAMS:  That‘s the point, right? 

KLINE:  Let me say—we do know this.  There are 10 and 11 and 12-year-old children who received abortions late term.  That is what the record shows.  And we also know that the younger the child, the more likely the predator is older.  I will say this—the clinic does not know who the father is.  They spend five minutes with the girl as they come in. 

They ask her.  Only one half of one percent of children report their own abuse.  They are in co-dependent relationships.  It‘s—Dan, it is just like domestic violence, you know, where a cop is standing on the step and the woman has her hair pulled out, is bleeding out of the mouth, and has a black eye and says you know I‘m clumsy as her husband stands behind her. 

ABRAMS:  So you believe the victim has no right to decide not to pursue a case, right?  You‘re saying...

KLINE:  A 10-year-old child...

ABRAMS:  Let‘s say...

KLINE:  A 10-year-old child.

ABRAMS:  Let‘s say a 15-year-old child. 

KLINE:  Well here‘s what happens.  You do not have the prosecution of two 15 years old engaged in consensual activity in Kansas.  You can‘t find the case.

ABRAMS:  So...

KLINE:  ... what I‘m saying...

ABRAMS:  ... the bottom line is that you don‘t want the records of the 15 years olds. 

KLINE:  We do not know, Dan, who the predator is.  I have got a case on my desk where a 13-year-old child goes into a health clinic, the health clinic doesn‘t tell anybody, the child asks for condoms and birth control.  About six months later the father shows up and says look, I have been trying to get somebody to investigate this 37-year-old man who‘s been raping my child since she was 9.  And eventually a prosecutor picks it up...

ABRAMS:  But there are other ways to do it.  But these are—and I think important stories and they‘re important that you look into them, but there are other ways to investigate other than just demanding all of the records from an abortion clinic. 

KLINE:  This—well, I haven‘t done that, and I can‘t do that. 

ABRAMS:  Underage...

KLINE:  A judge...

ABRAMS:  ... all of the abortion records of under 16...

KLINE:  That is—you do not know that.  This hasn‘t been released.  The record hasn‘t been released.  A judge in Kansas, which is—this happens every day, Dan.  A judge in Kansas and across the nation they do this, has reviewed evidence before him and says you know what, there is a serious crime here.  And the evidence of the crime is over here.  And by the way, we‘re going to protect the privacy of these children.  You‘re not going to see their names in the paper.  And what you‘ve got is a clinic hiding behind children saying that we do not want to produce evidence that relates to a child...

ABRAMS:  Well let me let...

KLINE:  ... that‘s concerning to me. 

ABRAMS:  Let me let Ms. Goldman respond to that particular allegation. 

KLINE:  Sure.

ABRAMS:  Go ahead. 

JANLORI GOLDMAN, HEALTH PRIVACY PROJECT:  I think you are exactly right, Dan.  I think the attorney general is using a concern about child abuse to go after women who were seeking reproductive services.  It‘s absolutely part of a broad scale effort in this country that the U.S.  Justice Department has been involved in and now the attorney general of Kansas to frighten women away from getting reproductive health care in this country.  If women know that government is going to come in and seek access to information, very sensitive, personal, medical information, then they‘re going to be afraid to seek care.  And that‘s what‘s happening here. 

ABRAMS:  Let me ask you about—what about his point about the children, though?  We‘ll focus on late-term abortions in a minute.  But what about the children he‘s talking about?  He says there may be 10, 11, 12 years old. 

GOLDMAN:  If there are children where there is an allegation of abuse, then that has to be reported under state law to Child Protective Services. 

ABRAMS:  And he‘s saying he wants to make sure that the clinics are doing their duty and reporting that. 

GOLDMAN:  Absolutely and I would agree with him that we should make sure that clinics...

ABRAMS:  How else do you do it? 

GOLDMAN:  Well let me finish.  I think it‘s really important that the attorney general go after the kinds of crimes that he says he is interested in, and you do that with a very narrowly targeted subpoena.  You ask for very limited information.  You don‘t even need the names of these kids in order to decide whether or not criminal activity has occurred.  He is asking for the entire medical record, which has very sensitive, very detailed, very personal information in it.  And that‘s...

KLINE:  Dan...

GOLDMAN:  ... that‘s...

KLINE:  I‘m sorry. 

GOLDMAN:  That‘s the kind of activity that we saw the Bush Justice Department engaging in, in the last couple of years.  It was struck down.  They had to back away from those subpoenas.  This is really an effort to frighten women away from seeking care and frighten doctors from performing these kinds of services. 

ABRAMS:  Your response Mr. Attorney General.

KLINE:  Yes, a couple of things.  I think—and I understand—

Janlori doesn‘t have the full facts of the nature of this investigation... 

GOLDMAN:  Nobody does.  You sealed them. 

KLINE:  ... or how long—I didn‘t seal them.  The court did.  We sealed them to protect the privacy of the people involved.  And additionally, how long it has been going on and how targeted these particular subpoenas are.  I will say this.  With her statement that we ought to be able to get to the records of children who have been raped, I would hope she would support me. 

GOLDMAN:  I absolutely support you. 

KLINE:  The public record in Kansas demonstrates this.  This is public.  I‘m not revealing anything relating to the investigation, that in the year 2003 alone, 78 14-year-old children -- 14-year-old and younger children in Kansas—had abortions.  Now, they haven‘t—there‘s not an accusation of abuse.  That is rape under Kansas law and I will say this.  I would not be going to these clinics—and I am not asking for all their records, I‘m just asking for what the clinics have...

(CROSSTALK)

GOLDMAN:  Why are you not only asking...

KLINE:  Just a second...

GOLDMAN:  ... for the records of children who are 14 and under? 

That‘s not what you are doing...

KLINE:  Janlori...

GOLDMAN:  You‘re seeking records on adults. 

KLINE:  ... you don‘t know all that I‘m asking for...

GOLDMAN:  That is part of the briefs...

KLINE:  It‘s not...

GOLDMAN:  ... that is part of the briefs that I saw that you are seeking medical records of adults.

KLINE:  That is the clinic‘s brief.  And I will say this.  I would not...

GOLDMAN:  Are you denying that you are seeking records of adult women...

ABRAMS:  Let him respond.  Go ahead.

KLINE:  I would not seek and I am not seeking—actually, it is a court order for them to be produced.  That would not occur unless this was the only source for the information necessary.  And you cannot prosecute child rape without the name of a victim.  That doesn‘t mean it becomes public, but you can‘t get a conviction for rape without the victim. 

ABRAMS:  Yes.  The question becomes how targeted is the investigation. 

I mean that becomes the ultimate question here.  All right.  We shall see.  We will follow it.  Mr. Attorney General, Phill Kline, thanks a lot for coming on the program. 

KLINE:  Thank you Dan.

ABRAMS:  And Janlori Goldman, thank you as well. 

GOLDMAN:  Thank you.

ABRAMS:  Appreciate it. 

Coming up, Martha Stewart is set to be released from prison in a couple of weeks, but can she run her company when she gets out?  There is new talk she might be able to.

And the family of a girl abducted from a Wal-Mart parking lot, then killed after completing her shift have filed a wrongful death suit against Wal-Mart, coming up. 

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  We‘re back with our “Just A Minute” segment where I lay out today‘s other legal stories.  My guest has a minute to discuss each issue with me.  Back with us former Essex County Massachusetts prosecutor Bill Fallon. 

Domestic diva turned convict Martha Stewart will be released from prison next week and her company Martha Stewart Living Omnimedia is anxiously awaiting her return.  Her criminal case could be behind her, but a civil suit remains.  The SEC has filed an insider trading case against her seeking to—quote—“bar her from acting as a director of and limiting her activities as an officer of any public company.”

However, NBC News has confirmed that her attorneys have had talks with the SEC about settling the insider trading suit, thus possibly clearing the way for her to return to the top of the company. 

Question:  What does she need to do to run her company again, Bill? 

FALLON:  I think she‘s got to give away millions of dollars, Dan.  Quite frankly, I‘ll be a little shocked here if they take an insider trading charge.  Remember, much more serious arguably than the criminal charges here at the SEC.  Is there a way out?  But I‘m not sure they‘re going to back down and say that in fact it‘s all right for her to do this.

I don‘t think it matters to Martha Stewart.  It sounds like it matters but quite frankly her career is skyrocketing even while she is in prison.  What they want to get her is she wants her name out there.  She wants her visibility out there.  I don‘t think the company needs her as a director.  They just need her as one of those people who is making all the creative decisions.  Is she going to try to do it?  Yes.  I don‘t think the SEC is going to back down on the insider trading...

ABRAMS:  Very quickly, Bill, why do you think the SEC charge of insider trading more serious than the criminal charges, which were just lying as part of the investigation? 

FALLON:  Dan, you know, they didn‘t bring criminal charges for insider trading.  I think there was a harder burden of proof on that.  I mean civil cases are never as serious as...

ABRAMS:  They couldn‘t have proved it in the criminal case...

FALLON:  (UNINTELLIGIBLE) well don‘t think...

ABRAMS:  Bill, you‘re out of time...

FALLON:  Some people think they could. 

ABRAMS:  All right. 

FALLON:  I‘m out. 

ABRAMS:  The parents of 19-year-old Megan Holden, a Wal-Mart clerk abducted from the store‘s parking lot and killed last month, suing the retail chain for wrongful death.  Her abduction captured on surveillance video.  The man charged with her murder, Johnny Lee Williams, was seen coercing Holden into her truck as she left work after he spoke with one of the store security guards it seemed.  Police say Williams had been loitering outside of the store for a few days before abducting Megan.

Question:  What would have to happen for Wal-Mart to be held responsible, Bill? 

FALLON:  Dan, I think it‘s really difficult for Wal-Mart to be held responsible here.  Is there a moral responsibility and culpability?  Certainly there is.  I mean quite frankly what are these films for?  Just to say—find out who is stealing from their stores?  I mean it‘s almost at midnight she‘s getting out of work.  I think the difficulty is in the civil arena wrongful death—we have somebody who has committed a crime that has nothing to do with negligence.  She‘s been brutalized and murdered by another individual.  Do we have a contributory negligence to that murder?  Absolutely not...

ABRAMS:  What obligation does Wal-Mart have to keep its parking lot safe for an employee... 

FALLON:  Well, I think...

ABRAMS:  ... for anyone? 

FALLON:  Dan, I think they do have some kind of obligation there and I think particularly for their employees coming out late, but the problem is going to be whether in Texas that‘s going to be something that goes after the death of somebody.  Remember, you might have a negligence suit if you got hurt. 

ABRAMS:  Yes.

FALLON:  Sadly, this would be one of those cases that upon the death of an individual, maybe there is no cause of action. 

ABRAMS:  Yes.

FALLON:  I hope there is something and I hope they do the right thing. 

ABRAMS:  The issue would be was it reasonably foreseeable that something like this could happen. 

FALLON:  That it—yes. 

ABRAMS:  All right.  Issue three:  The case will go on.  An Illinois appeals court is allowing a man to file a suit for emotional distress—this is a wacko suit.  All right.  He finds out a former sort of lover used his sperm to have a baby.  Doctors Roger—Richard Phillips and Sharon Irons had an affair six years ago.  He claims they never had actual intercourse. 

Phillips is accusing Irons of secretly keeping some of his semen and impregnating herself with it.  Says he didn‘t find out about it until two years later when she filed a paternity suit and Phillips was ordered to pay $800 a month in child support.  He is now suing her saying he has trouble sleeping and eating.  He‘s been haunted by—quote—“feelings of being trapped in a nightmare.” 

The question—and this is the legal question—is sperm a gift as Irons alleges, a legal transfer of property from a donor to donee? 

FALLON:  Dan, you know, the high courts there have said it‘s a gift.  It‘s a gift of life.  In this case the law is an ass.  Quite frankly, we have this guy is spending $800 a month to in fact support this child that he had no idea of.  Now I don‘t want to get into the technical parts of this, of how this doctor—we can think of numerous ways—having oral sex with this guy somehow comes up with a baby that he finds out two years later. 

I think the amazing part here is the doctor—the mother doctor goes on pontificating about how could anybody say to their child I am embarrassed and upset by your birth?  Well guess what?  If anybody could take a child away from a mother, it‘d be someone that would make that statement.  Here she tricked...

ABRAMS:  How about suing her for fraud? 

FALLON:  Well she lost the fraud suit...

ABRAMS:  Yes.

FALLON:  She lost the theft suit because they said it‘s a gift.  But quite frankly this proves there is no such thing as safe sex.  We thought that just had to do with venereal disease, but quite frankly, sperm has a longer shelf life evidently than we know. 

ABRAMS:  Bill Fallon, I almost couldn‘t do that story today...

FALLON:  Me neither. 

ABRAMS:  Thanks.  Coming up, Linda Tripp learned the hard way that recording her telephone conversations with White House intern Monica Lewinsky might not be viewed favorably by many.  Why didn‘t the latest secret taper realize that about President Bush?  It‘s my “Closing Argument”. 

(COMMERCIAL BREAK)

ABRAMS:  Why the man who secretly recorded his conversations with President Bush may need a refresher history course.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—when will they learn that people generally don‘t like a snoop who secretly records phone conversations?  The latest example, Doug Wead, the former spiritual advisor to President Bush for two years.  He taped his conversations with then Texas Governor George Bush.  Wead says he kept the tapes secret until after Bush won re-election out of a sense of loyalty to the president and then decided to show them to “The New York Times” for—quote—“historic purposes”.

Wead isn‘t proving to be much of a history student.  He didn‘t learn anything from the lesson provided by Linda Tripp, secretly taped her conversations with Monica Lewinsky.  Tripp was vilified and even faced criminal wiretapping charges in Maryland for making the tapes. 

The mistress of former Housing Secretary Henry Cisneros didn‘t fare much better.  She secretly taped phone conversations with Cisneros, handed them over to prosecutors to use in their conspiracy case against him, but she also doctored them to keep out damaging information about herself.  Prosecutors sent her to prison for fraud for four years.  Cisneros didn‘t serve any time. 

What about former Fox producer Andrea Mackris who probably tape-recorded sexually explicit conversations with her boss Fox anchor Bill O‘Reilly and then file a sexual harassment suit against him.  Her reputation was trashed.  She got stuck with an extortion claim, although the tapes probably led to millions in a settlement from O‘Reilly.  She still suffered because of it.

Don‘t get me wrong.  Sometimes secret tape recordings are justified, even necessary.  Amber Frey‘s secret recordings with Scott Peterson lying to her over the phone, helped convict him of murder.  But it seems all of these—quote—“victims”, Tripp, Mackris, Cisneros‘ mistress never predicted the negative reaction that would come.  But at least all of them claim to have a need to tape, either to protect themselves or to show wrongdoing by another. 

Wead can‘t even say that and yet he seems stunned by the negative reaction.  Says he can‘t understand why no one believes this was all for history‘s sake and still claims he‘s a loyal friend to Bush.  Didn‘t realize these tapes, releasing them while the president is still serving in office would lead to a backlash?  No matter what you think about what Doug Wead did and whether history or loyalty should prevail, he‘ll certainly go down in history as being disloyal and that should hardly come as a surprise. 

Coming up in 60 seconds, a man calls into a Chicago radio station and confesses to an unsolved bank robbery.  It‘s tonight‘s “OH PLEAs!”.

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say, now it‘s time for “Your Rebuttal”.  We‘ve been following the heart-wrenching story of Terri Schiavo, the woman in Florida who‘s been kept alive by a feeding tube for 15 years after suffering a heart attack.  Her husband says she would not want to continue living in that condition.  Her parents insist there‘s still hope.  Both sides battling over the case in court with the parents losing almost every legal fight. 

I‘ve said all week that it‘s time to let this chapter end and the courts and doctors are all coming down on the same side.  That Terri will not get better and that she would not have wanted to be kept alive this way.  Plenty of e-mails on this. 

Springfield, Missouri, Mark Dickenson.  “My father had a heart attack two years ago that placed him in a vegetative state with no brain activity.  My father told my mother he would never want to be like that and it was the right thing to do.  What the parents and this lawyer are doing is cruel, inhumane, and selfish.”

From Brandon, Florida, Joan Califano.  “Quality of life is important, not the quantity.  Terri‘s parents are not doing this for Terri.  I believe they are punishing Mr. Schiavo plain and simple.  I truly believe if she could, she would scream let me go.”

Barbara Warner in Arizona, “Why is hooking someone up to machines instead of allowing them to live or die on their own not playing God, but unhooking them from machines is?  I am just sick of the one sided playing God defense in this debate.”

From Manhattan, Kelly Sullivan on the other side, “Should spouses have 100 percent authority if there‘s a difference of opinion over medical care?  Let this man divorce Terri and leave her in the care of her parents who conceived and gave birth to her.”

Except Kelly, that would ignore what the courts have found to be Terri‘s wishes. 

Kathie Dozier in Lexington, Kentucky.  “What happened to requiring an appropriate document in place before you make a decision on this?  Anything other than Terri‘s signature on such a document should not be allowed in as evidence of her wishes.”

Well in some cases, without documentation, you have to assess the intent of the person and that‘s what the courts have done here, although this is why living wills are important. 

Last night a jury has been picked in the Michael Jackson child molestation case, consisting of four men, eight women, no African Americans.  I said Michael Jackson chose to live in Santa Barbara, an area dominated by Hispanics and whites.  He can‘t complain now that his neighbors aren‘t racially diverse enough.  His lawyer didn‘t even try to move the case. 

Many of you weighing in—from Long Island, Tineka Johnson.  “Michael is a black man accused of a crime against a young white boy, so of course sitting amongst a jury of all white people is an issue.”

From Plantation, Florida, Robert Grant writes about the jury of Jackson‘s peers.  “Would that be singer/songwriter/dancer peers, African American peers, Santa Barbara County peers or Roman Polanski?”

Finally last night in response to a viewer‘s e-mail regarding Koko the gorilla and her former caretakers‘ million-dollar lawsuit alleging they were pressured to show the gorilla their breasts.  A viewer asked if I would laugh off a request to show my penis to the gorilla.  I said I would.

Dave Koch in Columbus, Ohio.  “You said that if asked to show your penis to a gorilla, you would do it and just laugh it off.  The real question Dan is how would you feel if the gorilla pointed and laughed at you?”

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

“OH PLEAs!”—a man in Chicago should have listened to his mom when she warned that bragging can get you into trouble.  The popular Chicago radio station‘s confession show of tell all love affairs and naughty antics was nothing compared to a sinner calling himself “D”.  “D” proudly boasted to Chicago how he and five others pulled off a heist, successfully robbing $81,000 from a bank. 

The not so shy robber boastfully explained his execution revealing every juicy detail.  How they avoided the dye packs, took money only from the vault, even had a bank employee on it.  “D” was so happy with himself that he went to Michigan Avenue to buy a Leviathan (ph) wallet in cash and some scooters as a pat on the back for his good work.  Unfortunately for our brazen braggart, a bank employee was listening to “D‘s” confession, knew the story. 

Apparently, “D” wasn‘t all talk.  The listener was one of the bank employees working the day that “D” robbed her bank.  The robbery case had no leads up to that point.  After a call to authorities, they traced the cell number, two men were arrested and charged, the FBI found the scooters and the wallet as well.  Nice job “D”.

That does it for us tonight.  Thanks for watching.  Chris Matthews, “HARDBALL” up next.  See you tomorrow.  We‘ll have mock opening statements in the Michael Jackson case.

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

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