updated 3/31/2005 9:04:35 AM ET 2005-03-31T14:04:35

Guest: Robert Raben, Wendy Long, Sheriff Ben Johnson, Steve Brill, Dominick Dunne

DAN ABRAMS, HOST:  Coming up, just like when it seemed it was over, a federal appeals court gives Terri Schindler a final legal shot.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Early this morning a court stunned many saying it would allow Terri‘s parents one more opportunity to file legal arguments.  Then this afternoon, their hopes dashed. 

And a 5-year-old‘s cry for help.

UNIDENTIFIED FEMALE:  And there‘s blood coming out of my dad‘s mouth and he fell off the bed.

ABRAMS:  Her parents shot, her mother dead, her father bleeding to death.  She calls 911.  We talk to the sheriff investigating the double homicide. 

Plus, what would Johnnie Cochran want his legacy to be?  How did he really feel about O.J.‘s acquittal?  We have an interview with Johnnie from shortly before he died. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, a glimmer of hope early in the day for Terri Schiavo‘s parents extinguished yet again by the federal courts.  The 11th Circuit Court of Appeals opened the door for the Schindlers late last night granting them the right to file another effort to have Terri‘s feeding tube inserted. 

The Schindlers pleaded—quote—“Terri Schiavo‘s natural fundamental right to life itself is at stake.  There is no greater right since all other rights depend upon it.  The right to life is not derived from government, but it is an intrinsic right derived from the fact of individual‘s very existence.”

Just hours ago, that same court denied their request.  One of the judges, Stanley Birch, wrote a lengthy opinion supporting the denial saying “The tragic events that have afflicted Ms. Schiavo and that have been compounded by the resulting passionate inter-family struggle and media focus certainly quality as hard facts.  And while the members of her family and the members of Congress have acted in a way that is both fervent and sincere, the time has come for dispassionate discharge of duty.”

It seems the Schiavos have all but run out of options with Terri now in her 13th day without food or water.  “My Take”—as I said from the beginning, there really is no legal—winning legal argument for the Schiavo parents here.  I think it‘s time to bring this difficult episode to an end.  It‘s what the court found Terri would have wanted. 

Joining me now former Supreme Court clerk of Clarence Thomas and legal counsel to the Judicial Confirmation Network, Wendy Long and Robert Raben, former assistant attorney general under Janet Reno.  He is the national advocate for compassion and choices. 

All right, Mr. Raben, let me start by understanding what happened today.  I mean, I‘m awakened in the middle of the night last night at 12:45 and someone says, hey, Dan, the 11th Circuit Court of Appeals just agreed to hear another petition in the Terri Schiavo case.  I didn‘t even know that there was a petition pending. 

ROBERT RABEN, FMR. ASST. ATTORNEY GENERAL:  That‘s exactly right.  It gets hard to keep track there‘s been so many twists and turns in this tragic case of Ms. Schiavo.  Apparently the 11th Circuit gave her attorneys a few more days.  They had missed a deadline to appeal a lower court ruling and they gave them another opportunity to make the case that they would be able to prevail on some important constitutional principles.  They looked at the documents and I guess they decided 10-2 I think was the ultimate vote that it wasn‘t going to happen.  It‘s just a tragedy.

ABRAMS:  All right.  I want to...

WENDY LONG, CLARENCE THOMAS‘ FORMER CLERK:  Dan...

ABRAMS:  Well go ahead.  Yes...

LONG:  ... I think that actually this 11th Circuit decision is pretty amazing because these legal papers filed by the Schindlers in this round were actually the most impressive and the best legal arguments that have been advanced to date in this... 

ABRAMS:  It‘s a little late for that...

LONG:  Well it wasn‘t too late.  She‘s still alive.  And this decision that‘s just been issued by the 11th Circuit, and I haven‘t had a chance to read the whole thing, but it strikes me as fairly outrageous and the most outrageous example yet of judicial activism.  What has happened here basically is without any hearing on the merits at all, the 11th Circuit has given the back of its hand to a statute that was duly enacted by the representative branches of government, the Congress and the president of the United States...

ABRAMS:  Yes.

LONG:  ... and said it has no merit whatsoever without even a hearing on the merits.  And as a result of that, a disabled woman who has a family who loves her very much and is willing to take care of her is now likely to die very soon by court order without ever getting a fair hearing...

ABRAMS:  Well again...

LONG:  ... on her federal rights. 

ABRAMS:  Yes.  A fair hearing again, you know, basically suggests that every, you know, the 10 judges on the Court of Appeals and the judge who evaluated it and the U.S. Supreme Court you know are so fundamentally violating her rights.  I know that‘s your opinion. 

Let me ask you about what Judge Stanley Birch wrote and let me read this to you.  I don‘t know if you had a chance to get to this part.  Because as you know, there was one judge who sort of wrote an opinion here, a couple of judges wrote a concurring opinion.  A couple of judges wrote a dissenting opinion.

This is Judge Stanley Birch.  “Generally the definition of an activist judge is one who decides the outcome of a controversy before him according to personal conviction, even one sincerely held as opposed to the dictates of the laws as constrained by legal precedent and ultimately our Constitution.”

Let‘s go on.  “In resolving—this is number nine—the Schiavo controversy, it is my judgment that despite sincere and ultraistic motivation, the legislative and executive branches of our government have acted in a matter demonstrably at odds with our founding fathers‘ blueprints of the governance of a free people, our Constitution.”

It sounds this judge is saying—you‘re using the term activist judge and so is he and you‘re coming to exactly the opposite conclusions.

LONG:  Well the term “activist” doesn‘t apply to the elected branches of our government.  I mean activism is something that is used as a term to critically describe judges because they aren‘t responsible to the people.  When they‘re activists, they‘re acting like a legislature.  It‘s completely ridiculous to call Congress and the president activists.  They‘re the ones who are permitted to enact legislation. 

ABRAMS:  I think what he‘s saying, though, Mr. Raben, is that for a judge to get involved here would basically be saying I‘m just going to let my personal convictions surpass the strict confines of the law. 

RABEN:  Well it‘s—I agree with you.  It‘s fairly troubling to hear Ms. Long talk about activist judges in this case.  First of all, activist to her and others means they don‘t like the result.  It‘s not a neutral principle.  And I heard—say that she clerked for Clarence Thomas, Justice Thomas, Justice Rehnquist, Justice Scalia, the entire Supreme Court has I think four times declined to get involved in this matter even after Congress passed its fairly extraordinary bill.  I think it‘s a little beyond reason to start pointing fingers and calling a judge activist or not if they‘re doing what they think is the right thing under the law here. 

LONG:  No...

ABRAMS:  I don‘t—let‘s move on from the activist issue.  Let me ask you, Ms. Long, this is again from the concurring opinion of two of the judges from the 11th Circuit Court of Appeals.

“Given the credibility determinations that the state trial court was authorized to and did make the evidence clearly was sufficient to meet the clear and convincing evidence standard which the Florida courts had opposed and did apply in this case.”

Your response.

LONG:  That‘s completely wrong.  What Judge Greer did at the trial court level is he basically made credibility determinations without putting any reasons or evidence on the record as to what those credibility determinations were.  He just basically said I find this credible, I don‘t find that credible.  And he essentially made his decisions unreviewable, which is one of the problems here. 

And if we want to talk about activism, what activism is, is reaching out and a judge deciding something that‘s not part of the case or controversy that‘s teed up for him to review.  Judge Greer began this, for example, it was never teed up for Judge Greer to review whether Terri could receive water or soft foods by mouth.  It was only that she couldn‘t get anything through her feeding tube.  It was absolutely never before him to deny her receiving anything normally by mouth...

(CROSSTALK)

LONG:  ... yet he‘s reached out and decided she can‘t have that.

ABRAMS:  But that‘s so disingenuous.  I mean you know it is.  The bottom line question here is this is a woman who can‘t feed herself and the question is, must they continue to offer her whatever it is, she can‘t swallow on her own, et cetera...

LONG:  That‘s controverted, Dan...

ABRAMS:  Come on.  I mean you know this is—there is no medical controversy anymore.  It‘s so—the bottom—you can argue whether the courts got it right.  I completely respect your right to have an opinion the court got it wrong.  But this notion that there‘s some sort of major debate within the medical community about whether she is in a persistent vegetative state, there are a few outlying people in the medical community who are saying maybe she‘s not.  The vast majority of the medical community, almost everyone is saying it‘s a non-issue. 

LONG:  Dan, there is zero, zero evidence in the record, not clear and convincing, zero evidence that she wanted to be put to death if she was in this condition.  She made one statement about some elderly relative of her husband‘s who was on a ventilator.  She never said she wanted to die by starvation and dehydration. 

(CROSSTALK)

RABEN:  The conservative justices on the Supreme Court got it wrong, Ms. Long...

LONG:  No...

RABEN:  ... in their refusal to...

(CROSSTALK)

RABEN:  ... in their refusal to get involved in the case like Congress...

LONG:  No...

RABEN:  ... they got it wrong. 

LONG:  No.  The Supreme Court decides to take cases and we get over 10,000 cert petitions a year...

ABRAMS:  Yes.

LONG:  ... they‘re all—they‘re voluntary...

RABEN:  And this one...

LONG:  ... and is very likely that it wasn‘t a proper case in their view to tee up whatever these underlying issues are.  They don‘t sit to correct the errors of lower courts...

RABEN:  So you reserve your criticism for the 11th Circuit judges but not the Supreme Court that did the exact same thing.

LONG:  They didn‘t do the exact same thing.  The 11th Circuit had an option to review the decision.  The Supreme Court did not. 

ABRAMS:  All right.  Bottom line—I got to wrap it up.  But again, this issue about starvation and dehydration, yes, it‘s true, but the bottom line is that‘s what happens every day in this country.  We‘re going to talk about it.  Let‘s have a debate about whether anyone should ever have feeding tubes removed.  Let‘s not just debate it --  I‘ll talk more about that in my “Closing Argument”.

But two very bright people with a great debate, thank you Wendy Long and Robert Raben.  Appreciate it.

Coming up, one of the most heart wrenching 911 calls I have ever heard.

(BEGIN 911 CALL)

OPERATOR:  Did you go in your mommy and daddy‘s room?

UNIDENTIFIED FEMALE:  (UNINTELLIGIBLE) and there‘s blood...

OPERATOR:  All over the place?

UNIDENTIFIED FEMALE:  Not all over.  There‘s blood on the plant, blood on the floor.

(END 911 CALL)

ABRAMS:  This 5-year-old girl‘s parents shot, her mother dead, her father bleeding to death.  We got the 911 call and we‘ll talk to the sheriff who‘s investigating the murders. 

And many may think of Johnnie Cochran as the lawyer who helped O.J.

Simpson go free, and he was.  But what did he want to be remembered for?  We have an interview where he talked about his legacy, his career and O.J., he was a pal of mine, coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a 5-year-old finds her parents lying on the ground, her mother dead, her father bleeding to death, calls 911.  Her call is so heart wrenching, I should even warn you that some may not even want to hear this.  It‘s coming up.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  This is the most heart-wrenching 911 calls I think I‘ve every ever heard and the crime possibly avoidable.  Five-year-old Tia Hernlen woke up in the middle of the night with the sound of gunshots and found her parents bleeding in the bedroom; both had been shot and later died.  In just a few minutes we‘re going to talk with the sheriff investigating the case.  But first her call to 911 and it really can only be described as chilling.  The little girl is brave. 

(BEGIN 911 CALL)

OPERATOR:  911.  What‘s your emergency?

UNIDENTIFIED FEMALE:   (UNINTELLIGIBLE) hello.

OPERATOR:  Hello, is everything OK?

UNIDENTIFIED FEMALE:   (UNINTELLIGIBLE) my mommy and daddy...

OPERATOR:  (UNINTELLIGIBLE)

UNIDENTIFIED FEMALE:   ... I think there‘s a bullet on the floor...

OPERATOR:  There‘s a what?

UNIDENTIFIED FEMALE:   ... and there‘s blood coming out of my dad‘s mouth and he fell off the bed.

OPERATOR:  He did?  Where‘s mommy at?

UNIDENTIFIED FEMALE:   She is --  I don‘t know.  I think they‘re dead.

OPERATOR:  OK, your daddy is on the floor.  How old are you?

UNIDENTIFIED FEMALE:   I‘m 5 years old and I have a dog in the house.

OPERATOR:  OK baby, OK.  Let me get someone right over to you.  Did you go in your mommy and daddy‘s room?

UNIDENTIFIED FEMALE:   (UNINTELLIGIBLE) and there‘s blood.

OPERATOR:  All over the place?

UNIDENTIFIED FEMALE:   Not all over.  There‘s blood on the plant and blood on the floor.

OPERATOR:  Oh my goodness and you have your little doggie with you?

UNIDENTIFIED FEMALE:   And three cats.

OPERATOR:  And you‘ve got some cats too?

UNIDENTIFIED FEMALE:   Three cats and one dog.

OPERATOR:  OK.  Are you the only one there besides mommy and daddy?

UNIDENTIFIED FEMALE:  Well I said mommy and daddy and they didn‘t even answer.

OPERATOR:  OK, and what made you wake up tonight?

UNIDENTIFIED FEMALE:   There was—I think I heard a gunshot.

OPERATOR:  You heard a gun? 

UNIDENTIFIED FEMALE:   Yes and I see a bullet laying on the floor.  I think it‘s a bullet.

OPERATOR:  Really.

UNIDENTIFIED FEMALE:   (UNINTELLIGIBLE)

OPERATOR:  Who has a gun in the house?

UNIDENTIFIED FEMALE:   I don‘t see a gun, but I‘m scared.

OPERATOR:  Oh sweetheart, I will not let anything happen to you. 

UNIDENTIFIED FEMALE:   Can you send a deputy down...

OPERATOR:  I promise I will and you‘re only 5 years old?

UNIDENTIFIED FEMALE:   (UNINTELLIGIBLE)

OPERATOR:  Was there anybody else in the house besides you and mommy and daddy tonight?  Like an uncle or anything?

UNIDENTIFIED FEMALE:   No, there‘s no robber in the house.

OPERATOR:  OK, well I didn‘t think there would be a robber sweetheart. 

Did you have anybody staying over the night with you guys tonight?

UNIDENTIFIED FEMALE:   (UNINTELLIGIBLE)

OPERATOR:  OK.  So and the doors are all locked and everything like that.  Where are you in the house?

UNIDENTIFIED FEMALE:   Well I was in my room sleeping until I heard a noise shot and it woke me up.

OPERATOR:  (UNINTELLIGIBLE) Listen to me.  Is your phone the kind of phone you can take with you and walk around?

UNIDENTIFIED FEMALE:  (UNINTELLIGIBLE) this...

OPERATOR:  There should be an officer at your front door.  I need for you to take your phone with you and walk over to the door and open it for me, OK.  And I‘m going to stay on the phone with you, OK?

UNIDENTIFIED FEMALE:   But...

OPERATOR:  I will not hang up.

UNIDENTIFIED FEMALE:  I‘m naked.

OPERATOR:  Oh well, do you want to grab a towel or something?  I don‘t think the officer is going to care baby.  We just want to make sure mommy and daddy are OK, all right?

UNIDENTIFIED FEMALE:   (UNINTELLIGIBLE)

OPERATOR:  Grab a blanket or something.  Stay on the phone with me. 

Stay on the phone, all right?

UNIDENTIFIED FEMALE:   OK. 

OPERATOR:  My name is Donna, by the way.  You are doing a wonderful job, wonderful job. 

UNIDENTIFIED FEMALE:   And I know what to do for (UNINTELLIGIBLE).

OPERATOR:  You did great...

UNIDENTIFIED FEMALE:  I knew.

OPERATOR:  You were wonderful, absolutely wonderful.  You should be very proud of yourself.

UNIDENTIFIED FEMALE:   I‘m to the door.  I‘m unlocking it.

OPERATOR:  OK.  You let me know the officer talks to you.  OK, you go ahead --  talk to the officer.

UNIDENTIFIED OFFICER:  Talking to the dispatcher?  OK, tell her I‘m here now.  OK, you can hang up.

OPERATOR:  Bye sweetheart.

UNIDENTIFIED FEMALE:   He‘s here.

OPERATOR:  OK, sweetheart.  You be good, OK. 

(CROSSTALK)

OPERATOR:  Bye-bye.

(END 911 CALL)

ABRAMS:  Sheriff‘s deputies went into the Hernlen home.  They found Tia‘s mother and father in the bedroom.  Her mother, Julie, was dead at the scene, her father died last night.  Law enforcement suspected that David Johnson was involved.  They went to his home, found him dead from a self-inflicted gunshot wound to the head. 

When we come back, more of that tape and the sheriff investigating this case who will tell us what led them to David Johnson and why the situation might have been avoided. 

And Johnnie Cochran may be best known by many for this...

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  If it doesn‘t fit, you must acquit. 

(END VIDEO CLIP)

ABRAMS:  But that‘s not necessarily what Johnnie Cochran would want to be remembered for, at least not entirely.  We‘ve got an interview with Johnnie where he talked about his legacy, coming up. 

(COMMERCIAL BREAK)

(BEGIN 911 CALL)

OPERATOR:  911.  What is your emergency?

UNIDENTIFIED FEMALE:   (UNINTELLIGIBLE) hello.

OPERATOR:  Hello.  Is everything OK?

UNIDENTIFIED FEMALE:   (UNINTELLIGIBLE) my mommy and daddy...

OPERATOR:  (UNINTELLIGIBLE)

UNIDENTIFIED FEMALE:   ... I think there‘s a bullet on the floor...

OPERATOR:  There‘s a what?

UNIDENTIFIED FEMALE:   ... and there‘s blood coming out of my dad‘s mouth and he fell off the bed.

OPERATOR:  He did?  Where‘s mommy at?

UNIDENTIFIED FEMALE:   She is, I don‘t know.  I think they‘re dead.

(END 911 CALL)

ABRAMS:  Five-year-old Tia Hernlen woke up in the middle of the night on Monday to gunshots inside her house, found her mother and father shot, bleeding.  The brave little girl called 911.  She seemed to know exactly what to do.  Her parents both died.  The alleged shooter reportedly turned the gun on himself.  The girl‘s mother, Julie Hernlen, had tried to get a protective order against that alleged shooter, David Johnson, after claiming he harassed her and her family for months.  He even reportedly threatened to do just what he did on Monday night, harm the Hernlen family and kill himself.  But based on Florida law, a judge denied that request. 

Joining me now is the Volusia County Sheriff Ben Johnson.  Sheriff Johnson, thanks a lot for taking time to come on the program.  First, before I ask you anything about the investigation, any sense of how little Tia is doing? 

SHERIFF BEN JOHNSON, VOLUSIA COUNTY, FL:  Well to the best of our knowledge, right now she‘s doing all right.  She‘s with family.  And a 5-year-old at this time, they don‘t really understand death, I don‘t believe.  The fact that she‘s never going to see her family again and we‘re worried about the long-term effects on the little girl. 

ABRAMS:  But she seemed to know exactly—I mean she seemed—she was asking for a deputy to come down.  She knew exactly where to call, to call 911.  It was clear that someone, I would assume her parents, taught her what to do. 

JOHNSON:  Well, she‘s a very smart little girl.  And her parents did, they taught her well.  And she did a great job.  It was just a masterful job, especially for a 5-year-old.  She gave us information that a lot of times we have a problem getting out of adults and she just did a super job. 

ABRAMS:  So Sheriff, had you been at this house before?  Meaning, you actually had been called to the house based on the threats that the mother said she‘d been receiving? 

JOHNSON:  We‘ve had deputies at that house before, yes. 

ABRAMS:  And can you give us a sense of what happened in that case? 

JOHNSON:  Well, there was a—the family asked for a restraining order and they were given the paperwork and they did go to the courts trying to get a restraining order and the restraining order was rejected at this time.  But a problem with the restraining order, even in a case like this, had we gotten it, had the family gotten it, I don‘t know that it would have stopped this.  The only way you could have stopped it is for the person to go to jail and stay in jail. 

ABRAMS:  And according to Florida law, you need two incidents of violence or stalking, one—et cetera, to get this sort of protective order.  Let me lay out a little bit of a timeline. 

December 2:  Apparently Johnson threatened bodily harm to Julie and her husband.

December 4:  He allegedly drove by the Hernlen home seven times.

December 24:  She contacted Johnson, asks him to leave them alone. 

That‘s according to the charging affidavit.

Then January 7:  Johnson told Julie Hernlen he wants her husband to pay his attorney‘s fees and the harassment will stop.  Tells her that three days after being released from jail he had a loaded gun, woke up and thought of coming home—to the Hernlen home to harm the family, then kill himself.

What was his beef?

JOHNSON:  Well, he felt like the Hernlens had turned him in on a marijuana growing operation.  He had an indoor grow at his house.  And this was not the case at all.  It was found due to a burglary at his house or an attempted burglary that was reported.  But he had it in his mind that they were the ones who turned him in. 

ABRAMS:  And so he had it all wrong.  I mean the bottom line is he‘s going after these people, he‘s harassing them, he ends up killing them, and their little girl has to call 911 and not that that would make if any better, but the bottom line is that as it turns out he wasn‘t even right about that. 

JOHNSON:  It‘s a senseless death—or deaths all the way around.  Something that this individual probably never would have spent any time in jail on anyway on the charges that he had because of his background.  But now you have a little girl who is parentless, you have a mother and father who are dead.  You have families who are devastated and it‘s really a sad situation.  And it‘s affected all of us here, including—you know in our agency, it‘s affected our people. 

ABRAMS:  What happens to Tia now? 

JOHNSON:  Well, she has plenty of family.  And she‘ll be taken care of

by family. 

    

ABRAMS:  All right.  Sheriff, thanks a lot for taking the time.  You

know I‘m sure this has got to be a tough time for you and the people who

are working with you because just for me just listening to that tape, I‘m -

·         I had to sort of fight off tears here, so thank you very much for taking the time. 

JOHNSON:  Well, it was.  It was quite an instant and our dispatcher did a wonderful job...

ABRAMS:  Yes, absolutely.

JOHNSON:  ... of handling that little girl, of keeping her calm. 

ABRAMS:  Absolutely.  Your dispatcher deserves a lot of credit.  Boy. 

All right.  Thanks a lot, Sheriff.  Appreciate it. 

JOHNSON:  Thank you.

ABRAMS:  Let me just tell you this in the Terri Schiavo case we have this just in, lawyers for the parents of Terri Schiavo say they will file a request before the U.S. Supreme Court tonight asking for an emergency order to get the feeding tube, water tubes reinserted.  Now, when the court turned down a similar request last week, it took about 12 hours from the time the application was filed until the court denied it.  No way to know how long it will take in this case. 

But when we say that Terri‘s days are numbered, according to the doctors, it‘s hours and as a result any motion that is going to be filed is going to have to be done very quickly.  The court is going to have to act on it very quickly.  And some are even saying that even if the feeding tube were to be placed back in her now, that she still might be past that point where she could survive, but they are continuing the fight.  We‘re going to bring you any news relating to this coming up. 

Also, he‘s best known for defending O.J. Simpson, but is that how Johnnie Cochran would want to be remembered?  We‘ll show you an interview where he addressed that and many other issues about his legacy. 

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, after Johnnie Cochran‘s death, what would he want his legacy to be, O.J.?  We show an interview from shortly before his death.  First the headlines. 

(NEWS BREAK)

ABRAMS:  We told you last night at the top of the show, just minutes after the news was released, that Johnnie Cochran, the famed attorney who will always be remembered by many for his leading role in O.J. Simpson‘s acquittal, had died in his Los Angeles home of a brain tumor.  He was 67.  But there was a lot more to Johnnie Cochran and the O.J. case.  As I‘ve said on this show, he‘s a friend and a mentor to me.  In a few minutes I‘m going to talk about Johnnie with Court TV founder Steve Brill and journalist Dominick Dunne, two people who knew him well, but first what would Johnnie have wanted his legacy to be?

Here‘s Katie Couric with an interview she did with him in October 2002. 

(BEGIN VIDEOTAPE)

KATIE COURIC, CO-HOST, “TODAY” SHOW:  Do people still come up to you and say hey, good job on O.J. or I can‘t believe you let O.J. walk? 

JOHNNIE COCHRAN, CRIMINAL DEFENSE ATTORNEY (OCTOBER 2002): 

(UNINTELLIGIBLE) somebody (UNINTELLIGIBLE) say if it doesn‘t fit, you must acquit.  They remember that.

COURIC:  You probably don‘t lose sleep over this, but have you figured out why so many people don‘t like you? 

COCHRAN:  I don‘t know.  I think it has to do with you know the Simpson case probably more than anything else and I can‘t change that, you know, and I don‘t worry about it.  My legacy is not going to be determined by some guy who may not like me. 

(MUSIC)

COURIC (voice-over):  For Cochran, that legacy began in the early ‘60‘s when he took a job at the Los Angeles City Attorney‘s Office. 

UNIDENTIFIED MALE:  She asked me to...

COURIC:  But in 1965, Cochran left prosecuting behind, opened up his own practice and took on the Los Angeles Police Department in a series of high profile brutality cases. 

COCHRAN:  In fact next week we anticipate filing a claim for damages against the city of Los Angeles. 

COURIC:  In the ‘70‘s and ‘80‘s, he won unprecedented settlements for his clients and a Rolls Royce or two for himself.  Still, he insists that his goal wasn‘t pumping up his bank account but improving the system. 

COCHRAN:  The single most powerful figure in the justice system is the police officer in the street. 

UNIDENTIFIED MALE:  Everybody hold on to the wall.

COCHRAN:  He or she can take your freedom and they can take your life. 

And so we have to be very careful about who they are. 

COURIC (on camera):  What case are you proudest of when you look back at your career? 

COCHRAN:  Without a doubt, the case of Geronimo Pratt. 

COURIC (voice-over):  Pratt, a leader of the Black Panther Party, was sentenced to life in prison for a murder he didn‘t commit.  Cochran stayed on the case and after 27 years of briefs and appeals, he convinced a judge to set his client free. 

UNIDENTIFIED MALE:  Bail will be set at $25,000. 

(APPLAUSE)

COCHRAN:  All those people who think about lawyers are just only interested in the money, they should have a lawyer, somebody on their side, who takes 27 years and you don‘t get paid for those 27 years but you try to work to try to prove the person is innocent.  So I‘m proud of it. 

COURIC (on camera):  So you would say you do work that could be called noble? 

COCHRAN:  I hope that it is noble.  I mean I‘ve always lived by this principle.  I want to comfort the afflicted and afflict the comfortable.  And I think if you do that, you‘re doing a good job. 

COURIC:  Now, a lot of people watching this are thinking (UNINTELLIGIBLE) you know this is the guy who let O.J. Simpson or got him off the hook and they say this guy, he‘s the reason why lawyers have a bad name. 

COCHRAN:  You know, let me tell you something, I was representing a client, I‘m not pro murder.  I‘m not pro somebody getting rid of anything.  You got to look at what the evidence is and that‘s what I think we really we try to do in this case and so that‘s why I feel comfortable about it. 

COURIC (voice-over):  He may be comfortable with it, but for some there are lingering doubts about his tactics.  Most notably, Cochran‘s allegation that Simpson was framed by a racist police detective. 

COCHRAN:  They allowed this investigation to be infected by a dishonest and corrupt detective. 

COURIC (on camera):  Do you ever regret opening up so many racial wounds in this country? 

COCHRAN:  No, because I think that out of that hopefully something good will come.  And I think that we as Americans need to address those issues.  Race—we need to do better about race.  You know, race shouldn‘t necessarily be a forbidden subject when it‘s a real issue.  I‘m not going to tiptoe around it. 

COURIC (voice-over):  Away from the courtroom, Cochran hasn‘t been afraid to poke fun at his larger than life reputation.  He‘s appeared in commercials. 

UNIDENTIFIED FEMALE:  Who did he call? 

UNIDENTIFIED MALE:  His best friend. 

UNIDENTIFIED MALE:  You can‘t blame the guy—the girl is fly.

COURIC:  Sitcoms. 

COCHRAN:  Beautiful day for justice, don‘t you think? 

UNIDENTIFIED FEMALE:  Yes, it is. 

COURIC:  Even a soap opera. 

UNIDENTIFIED FEMALE:  Oh, my God.  They have Johnnie Cochran on their team.

COURIC:  And Johnnie Cochran parodies have made it all the way to “Seinfeld”. 

UNIDENTIFIED MALE:  (UNINTELLIGIBLE) infallible, improbable.

COURIC:  And “Saturday Night Live”.

UNIDENTIFIED MALE:  ... said if the hood and the sunglasses don‘t fit, then you must acquit. 

(LAUGHTER)

COURIC:  And speaking of that couplet heard around the world...

(on camera):  Well where did you get that, I mean in the shower and you were just like—you read “The Cat in the Hat” at night? 

(LAUGHTER)

COCHRAN:  I love—my favorite book, of course, is “Green Eggs and Ham” and...

(LAUGHTER)

COCHRAN:  ... all about that.  Now, we kept looking at this evidence and we kept --  you know you plan ahead, you plan ahead and we‘re looking at --  and one day Jerry said you know this doesn‘t fit, this doesn‘t—this whole thing doesn‘t fit. 

UNIDENTIFIED MALE:  Thank you counsel.

COCHRAN:  And after that from that point on we said, wait a minute, those gloves don‘t fit.  If they don‘t fit Simpson, which is the next logical step, if it doesn‘t fit, you must acquit. 

COURIC (voice-over):  Since the Simpson trial, Cochran has successfully defended rap entrepreneur Sean “Puffy” Combs in his gun possession trial and he won $9 million from the city of New York in the case of Abner Louima, who was tortured by New York police officers.  And here is something else you might not know about Johnnie Cochran, although he spent most of his career clashing with the police and to an extent the media, his daughter is a news anchor in Atlanta and his son is, you guessed it, a police officer in Los Angeles.  He‘s even pulled over a few people who claim they‘ve got connections. 

COCHRAN:  You know somebody will stop and say, look, you know let me see you in court.  My lawyer is Johnnie Cochran.  Somebody actually told him that.  He said well be sure and tell my dad hello when you talk to him. 

(LAUGHTER)

(END VIDEOTAPE)

ABRAMS:  That was Katie Couric‘s interview with Johnnie Cochran from two and a half years ago.  “My Take”—I said it last night, I‘ll say it again.  I consider Johnnie to be a friend.  He is a far kinder and gentler person than I think many realize.  I‘ll miss him. 

Dominick Dunne is an author and journalist.  He hosts Court TV‘s “Power and Privilege and Justice” and is a contributing editor to “Vanity Fair” magazine.  And Steve Brill is the CEO of Verified Identity Pass, chairman of the America Prepared Campaign and founder of Court TV, formerly my boss. 

All right.  Let me get—we‘ve got to take a break in a minute, but let me take—get a quick sense from each of you.  Steve, let me start with you.  What is your sort of most enduring memory of Johnnie Cochran? 

STEVE BRILL, COURT TV FOUNDER:  Well the one I was thinking of as I was coming over here today was you know we brought Johnnie to New York to do a show with Nancy Grace, and the first day he and Nancy were in town, we had given them each a small office at Court TV.  Every office at Court TV was small, as you know.

ABRAMS:  I remember. 

BRILL:  And they were about to rehearse their first show when Nancy complained.  I think she looked up and counted the tiles on the ceiling and complained to me that her office was a little bit smaller than Johnnie‘s and she got angrier and angrier about it, started shrieking and yelling and Johnnie just took me aside, took me out of the room and said, you know what, you know who cares.  You know give her the bigger office.  I don‘t care.  I don‘t even need an office.  It doesn‘t matter. 

ABRAMS:  Dominick, an enduring memory before we take a break and talk about the Simpson case? 

DOMINICK DUNNE, CONTRIBUTING EDITOR, “VANITY FAIR”:  Well you know I

had a very fractious relationship with Johnnie.  I sat in the front row at

·         in Judge Ito‘s courtroom every day of that trial and I was passionately pro-prosecution.  And Johnnie and I—I talked about him bad on TV.  I wrote about him bad and he talked bad about me on TV, but we finally made up recently. 

    

ABRAMS:  And you told me you had a lunch with him where you were just sort of stunned by sort of how accommodating he was, et cetera. 

DUNNE:  He was wonderful.  But even when I was fighting with him, he was the most charismatic person in Judge Ito‘s courtroom. 

(CROSSTALK)

DUNNE:  You couldn‘t stop looking at Johnnie. 

BRILL:  Also, one of the nicest guys on the planet. 

ABRAMS:  Yes.

BRILL:  I mean really a terrific guy.  I remember I had him up to our apartment for drinks and we were going out to dinner and I think my son then was about 11 or 12 years old and Sam asked him, he sort of worked up the gumption and asked—and this is after the Simpson case and I had known him long before the Simpson case—asked him, you know how could you have done this or something to that effect.  And Johnnie just was so nice to him and explained the system and all the rest of it.  He was a terrific guy. 

ABRAMS:  Yes.

BRILL:  And, you know, as flamboyant as people say he was, he had sort of an inner modesty that was really kind of terrific. 

ABRAMS:  Let me take a quick break.  Dominick Dunne and Steve Brill are going to stick with us because we‘re going to talk more about this, play some sound bites from the Simpson case and reminisce.  I said this last night that I remember Johnnie‘s message on his machine.  It said, you have the right to remain silent.  Anything you say can and will be used against you. 

Coming up, more on Johnnie Cochran in a minute.

(COMMERCIAL BREAK)

(NEWS BREAK)

(BEGIN VIDEO CLIP)

COCHRAN:  It‘s not your decision.  You control his very life in your hands.  Treat it carefully, treat it fairly.  Be fair.  Don‘t be part of this continuing cover-up.  Do the right thing.  Remembering that if it doesn‘t fit, you must acquit.  And if these messengers have lied to you, you can‘t trust their message. 

(END VIDEO CLIP)

ABRAMS:  We‘re back talking about the career and legacy of attorney Johnnie Cochran who died yesterday.  Steve Brill, did he fight dirty in that case? 

BRILL:  I don‘t think he fought dirty, but he sure fought well and you know we were—you know I was amazed by the verdict, as I recall, and you weren‘t because you were, you know you were in the courtroom and you were watching, you know, up close how effective he was. 

ABRAMS:  Yes. 

BRILL:  You know, I used to kid him all the time.  In fact, the last time I saw him I think I was with you and we were ready to go on—about to go on the “Today” show and I used to kid him all the time.  I‘d—what I‘d do is I might ask him, you know how is the search going, Johnnie?  And he‘d laugh and he‘d laugh, and he took it in good humor. 

I mean he knew what most of the rest of the country thought about the verdict, but I don‘t think that takes away from how effective he was and he was doing his job.  I think he was doing his job in the classic way that a defense attorney does his job.

ABRAMS:  Dominick, do you think he—let me play this piece of sound.  This is a fight he got into with Chris Darden on the issue of this sort of the race card.  Yes, number three here.  Let‘s listen, then I want to ask you about it. 

OK, we‘ve got to get it ready.  Chris Darden, the prosecutor in the case.  Do we not have it?  All right, Dominick, talk about it, playing the race card, you think he did?

DUNNE:  I think he did a little bit...

ABRAMS:  I think he did, too... 

DUNNE:  ... not I think.  I know he did.  And—but, you know, he was such a good lawyer, I‘ve got to say that about him.  He was a wonderful lawyer.  And he made the prosecution team look very weak by comparison to him.  He was totally in charge of that courtroom.  Judge Ito wasn‘t in charge of that courtroom.  That was Johnnie Cochran‘s courtroom.  And he was one of the most mesmerizing people I have ever seen.  And I never agreed with him but I always admired him. 

ABRAMS:  This is the piece of sound I wanted to go to. 

(BEGIN VIDEO CLIP)

CHRISTOPHER DARDEN, SIMPSON PROSECUTOR:  This is the witness‘ statement and if the statement is racist, then he is a racist, not me...

(CROSSTALK)

DARDEN:  Clearly, well, well I mean, but that‘s what you‘re suggesting and that‘s what you know has created a lot of problems for my family and myself, statements that you make about me and race, Mr. Cochran. 

(CROSSTALK)

UNIDENTIFIED MALE:  Wait. 

UNIDENTIFIED MALE:  I‘m sorry.

JUDGE LANCE ITO, PRESIDED OVER SIMPSON TRIAL:  Wait.  If I see this conduct again from either of you two...

UNIDENTIFIED MALE:  I apologize, Your Honor. 

ITO:  It‘ll take more than that.

(END VIDEO CLIP)

ABRAMS:  You know Steve, when I went back through these tapes I forgot how angry Johnnie got at points in this trial. 

BRILL:  Well Johnnie got angry, but he managed to get the prosecution so angry that they forgot how to try their case.  And you know not to take anything away from Johnnie, but those prosecutors did an awful job and they lost probably the easiest to win, highest profiled murder case, you know, in recent history and it‘s because Johnnie was able to get under their skin and Judge Ito, as we saw there, you know, that threat notwithstanding and nice guy that he is, just wasn‘t able to control it. 

ABRAMS:  Dominick, his legacy, very quickly 20 seconds, will it always be O.J. Simpson? 

DUNNE:  Oh, no, no, no, no, no.  I think people are aware of what he did before and what he subsequently did.  No, he was an important person.

BRILL:  Yes, that‘s absolutely right. 

ABRAMS:  Steve put him on the cover of “The American Lawyer” magazine well before any of this ever happened.  Johnnie Cochran, again, we‘re all going to miss you. 

BRILL:  You bet. 

ABRAMS:  Steve Brill...

DUNNE:  ... miss you Johnnie...

ABRAMS:  ... Dominick Dunne, thanks a lot. 

Coming up, why we need to separate out the real arguments from the phony ones in the Terri Schiavo case.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, doctors, lawyers, judges have already made up their minds about Terri Schiavo, so why are some making it seem like there is some major legal or medical debate on this case.  Coming up, my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—I‘m tired of hearing the Terri Schiavo case characterized as a raging debate within the legal or medical community.  It‘s not.  No other case like this on the question of whether to remove a feeding tube has been as thoroughly examined both legally and medically and within the legal community, there‘s no major dispute over whether Judge George Greer‘s decision that Terri would not have wanted to live like this should stand. 

Anyone is free to disagree with that ruling and with the Florida Appeals Court, the Supreme Court, and all the federal courts that have examined the case.  But let‘s be clear.  After state and federal courts have examined the case again and again, there remains no serious debate about how this case was handled.  The judges who interpreted the law on the books did so in a careful and judicious manner. 

Now some may say well then it‘s time to change the laws.  For example, to require that written instructions be required before a feeding tube is removed.  Fine.  Let‘s have a national or state-by-state debate about when to remove feeding tubes and about whether it‘s barbaric.  But let‘s make it an honest one about all cases, not just this one.

If it‘s barbaric, then it‘s barbaric in all cases.  It happens every day.  Thousands of families.  Let‘s not obscure the issue by suggesting that Terri‘s condition is somehow materially different from others in her condition.  There is one fundamental split here.  Between those who look at death as something you can choose to do using law and medicine to figure out how and when to do it versus those who believe only God can or should take life away under any circumstances.  That God can work in mysterious ways. 

No right or wrong there, just different.  But let‘s keep the debate on track.  As for the doctors, apart from a handful of physicians, almost all of whom are affiliated with various religious organizations, there‘s no real debate in the medical community about Terri‘s  severe brain damage.  She‘s in a persistent vegetative state.  That means she can‘t understand anything going on around her. 

Those who see more are, according to almost the entirety of the medical community, just engaging in wishful thinking or reading too much into Terri‘s reflexes.  And based on the amount of time that has passed and the results of the test, the medical assessment is that she simply will not improve as she has not over the past 15 years.  I can tell you, it was almost impossible for to us find doctors who would say otherwise and we looked hard. 

That also means she is not in pain as she is dying.  Again, not my take but an almost uniform assessment from the medical community.  So as we discuss and debate these heart-wrenching, difficult moral questions, let‘s make sure we‘re all talking about the same thing, either medical or legal or religious, even one sprinkled with the other.  But let‘s just be honest about it as we‘re discussing it. 

Coming up in 60 seconds your e-mails on the Terri Schiavo case.

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night I criticized some groups raising money to pay Terri‘s parents‘ legal bills by offering videotapes of Terri in her bed for donations of $100 or more.  I said this is political profiteering at Terri‘s expense. 

Paula Huss in Minnesota writes, “I paid $100 to the Life Legal Defense Fund for a video of Terri.  I wanted to see for myself, judge for myself what abilities Terri has.  I also wanted to support the family and that organization to help save Terri‘s life.  I found Mr. Abrams‘ program to be very biased.”

Paula, it‘s not bias.  It‘s an opinion.  I told you straight out what I thought.  Just because you want to judge for yourself, though, doesn‘t make it any less gruesome that donations come with a parting gift that includes that video of Terri. 

From New York, Laura Battaglia, “Thank you for finally saying what I‘ve been thinking since the inception of this spectacle.  It is despicable that they would give out videos of Terri Schiavo.”

And last night before the show, my friend Johnnie Cochran died of a brain tumor.  I talked about what his friendship meant to me. 

Donna Lane in Ohio, “I was not a big fan of Johnnie Cochran because of the Simpson trial, but you changed my mind.  I must admit I was judging a book by the cover and you opened that book so that I could see the inside.”

From Connecticut, Sue Wargo, “You gave a very moving memorial to Johnnie.  I honestly did not know the great things he did in life, but it is too bad that the great things and the most infamous legacy he will leave is for most people to remember him as the lawyer that got O.J. off.”

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

“OH PLEAs!”—You know when you‘re out and someone starts waving at you, you can‘t figure out whether they know you or not?  Well it‘s just less embarrassing to pretend you do, right?  One woman in Pennsylvania seems to have exploited that weakness in so many of us.  Forty-one-year-old Marianne Johnson (ph) may have seemed like just a friendly outgoing person, but looks can be deceiving. 

Over a couple of months, Ms. Johnson (ph) allegedly preyed on the elderly, taking advantage of their not so keen memory.  She would allegedly approach her victims by acting as if she knew them from church or somewhere else.  She would greet them with a hug.  But when Johnson (ph) hugged the bewildered victims, she would also allegedly pickpocket them, stealing their wallets and loose items, according to authorities.

Johnson (ph) was arrested and charged with multiple counts of theft. 

Note to self.  Start assessing those random hugs. 

That does it for us tonight.  We are keeping an eye on the Terri Schiavo case.  We are keeping an eye on Pinellas Park where Terri Schiavo is living her final days.  I‘ll be here at 9:00 p.m. Eastern Time for another edition of the program.  Unless something else happens, in that case, I‘ll be back sooner.

“HARDBALL” with Chris Matthews up next.

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

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