updated 3/31/2005 9:19:49 AM ET 2005-03-31T14:19:49

Guest: Doug Kmiec, Mark Tushnet, Jake Goldenflame, Susan Filan, Alicia Caldwell, Ben Johnson, Savannah Guthrie

ANNOUNCER:  This is a special edition of THE ABRAMS REPORT.

(BEGIN VIDEO CLIP)

MARY SCHINDLER, TERRI SCHIAVO‘S MOTHER:  You have your own children. 

Give my child back to me.

(END VIDEO CLIP)

DAN ABRAMS, HOST:  It seemed there was suddenly a legal glimmer of hope for Terri Schiavo‘s parents, a federal appeals courts opening its doors for one more argument.  But then a ruling came down this afternoon.

(BEGIN VIDEO CLIP)

REV. JESSE JACKSON, RAINBOW/PUSH COALITION:  The law is important. 

The law must be tempered mercy to have justice.

(END VIDEO CLIP)

ABRAMS:  Then more major witnesses in the Michael Jackson trial.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  We love you, Michael!

UNIDENTIFIED FEMALE:  We love you!

(END VIDEO CLIP)

ABRAMS:  The psychologist who helped the accuser tell his story testified he thinks the boy‘s telling the truth.

Plus, a 5-year-old girl‘s desperate cry for help.

(BEGIN AUDIO CLIP)

UNIDENTIFIED CHILD:  There‘s blood coming out of my dad‘s mouth, and he fell off the bed.

911 OPERATOR:  He did?  Where‘s mommy at?

UNIDENTIFIED CHILD:  She‘s—I don‘t know.  I think they‘re dead.

(END AUDIO CLIP)

ABRAMS:  Her heart-wrenching 911 call and why her parents‘ murders might have been avoided.  And the Boy Scout official accused of trafficking in smut.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  The allegation is Mr. Smith received computer images of child pornography over the Internet, and he also distributed those images.

(END VIDEO CLIP)

ABRAMS:  We talk to a convicted sex offender who says it‘s no surprise.  Child sex fiends are taking jobs near kids.  All this on a special edition of the program about justice.

ANNOUNCER:  Now, live from MSNBC world headquarters, Dan Abrams.

ABRAMS:  Hi, everyone.  First up on the docket tonight, Terri Schiavo‘s parents tonight still fighting for her life and tonight still fighting in the courts.  The Schindlers‘ attorneys say they will file a request to the U.S. Supreme Court tonight, an emergency order to get Terri‘s feeding tube reinserted.  This even though Terri may only have hours left to live.  It comes after the 11th circuit court of appeals provided hope early this morning and then disappointment for the parents this afternoon on the same question, essentially, whether the courts have examined this case thoroughly enough.

MSNBC‘s Lisa Daniels is standing by outside Terri‘s hospice in Pinellas Park with the latest.  Lisa, 13 days now, and some odd hours.

LISA DANIELS, MSNBC:  Yes, it‘s true, Dan.  It was a very tense day today, especially with the ups and downs with all the legal news.  People are generally on edge and very emotional, especially with all the waiting.  The protesters keep on waiting for news from the family.

A little bit earlier today, Bob Schindler, Terri Schiavo‘s dad, came out, spoke to reporters and the crowd.  He told them that Terri Schiavo is alive, she is conscious, she‘s responsive, her eyes follow the family.  His main point was it is not too late to save Terri Schiavo.

Now, this evening, one of the family‘s spiritual advisers described the situation this way.

(BEGIN VIDEO CLIP)

FATHER FRANK PAVONE, PRIESTS FOR LIFE NATIONAL DIR.:  What is happening here is a monumental disaster for our nation and for civilization!  What is happening here is that we are buying into the idea that there are a certain class of people, namely those who are disabled, that we can just go ahead and kill and not lose a good night‘s sleep over it.

(END VIDEO CLIP)

DANIELS:  Just to show you how intense things are, I think we have some video of an action that happened earlier in the day.  Usually, when we come out here—this is 102nd Avenue—the police officers at the end of the street—they wave us in, they check our badges casually, but they pretty much know us at this point.  But today, they really studied our badges  They asked us to pop open the trunk.  They searched it.  They asked us if anyone told us to bring in any strange packages.  It was like the airport—very intense.  And it really remains so, Dan, at this hour.

One more quick note.  I just want to pass along to you—whether it‘s significant or not, I‘ll let you guys decide.  But George Felos, Michael Schiavo‘s attorney, came to the hospice at 11:00 AM Eastern time, and judging from his car, he remains here at this hour.  So I think that fact, combined with all the intense atmosphere, is making people very much on edge.  Dan, back to you.

ABRAMS:  Lisa, let‘s just speak straightly.  When you say on edge, you mean that many are wondering whether Terri Schiavo‘s hours are numbered.

DANIELS:  That‘s exactly right, Dan.  Well, it refers to a statement that George Felos made a little bit earlier in the week.  I can‘t remember what day.  But he was giving a news conference, and as soon as the news conference was off but the cameras were still rolling, he said that in the event that Terri Schiavo dies, he would be contacting the Associated Press and would spread the word.  And I think when people see George Felos here for so many hours, that‘s the nature of what they‘re thinking.

ABRAMS:  All right.  Lisa Daniels, once again, thanks very much for your reporting.

All right, so the legal.  They‘re now going to the U.S. Supreme Court.  You heard Lisa Daniels there, saying people are wondering whether she only has hours to live, and yet they are still fighting.

Joining me now is Doug Kmiec, the constitutional law professor at Pepperdine University.  And also joining me is Mark Tushnet, a professor of law at Georgetown University.  Thanks very much to both of you.  He‘s also the author of “A Court Divided.”

All right, Professor Kmiec, bottom line here is that the legal avenues are pretty much over, aren‘t they?  I mean, we‘re really now re-arguing the exact same types of arguments that were made days ago.

DOUG KMIEC, PEPPERDINE CONSTITUTIONAL LAW PROF.:  Well, they‘re similar arguments, Dan, and the unfortunate thing about this enterprise is that Terri Schiavo‘s legal team found their core legal argument only in this most recent proceeding.

I was very distressed by the congressional intervention because I think the congressional intervention was unconstitutional.  One of the judges in the 11th circuit this morning explained why it was unconstitutional, dictating a rule of decision in a particular case.  And I think one of the unfortunate side effects of pursuing that dubious congressional strategy is that it distracted Terri Schiavo‘s counsel from the heart of their case, which is that their argument is, is that there‘s a fundamental constitutional right to life.  At least in the context of a circumstance where there are willing caregivers, a state, as a matter of federal constitutional due process, has to observe that right, and a federal court gets the privilege of ascertaining whether or not the evidentiary standard has been met.

ABRAMS:  Wait.  So let‘s be clear.  I mean, it sounds like what you‘re saying is that even if there were a living will, that the right to life and the willing caregivers would mean that someone can‘t determine whether they want to have a feeding tube removed.

KMIEC:  I don‘t want to quite go that far because I think the Supreme Court in Cruzan has clearly acknowledged the importance of a living will, but we don‘t have that here.  We have a circumstance where someone has not clearly specified their desire, and yet we also have the circumstance of parents willing to provide the care and provision of basic food and water and medical necessities for this woman.  I think the United States Supreme Court, had this case come cleanly to them on that issue, would have been intrigued by it because it relates, Dan, to some of the things they‘ve been doing this term.

ABRAMS:  You know, Professor Tushnet, what I don‘t get is that there seems to be the argument out there that everyone just wants to ignore the findings of the Florida courts.  I mean, it sounds like what—you know, I think Professor Kmiec isn‘t quite saying but some others have said is what this court in Florida found doesn‘t matter, what the appeals courts in Florida found don‘t matter, we should be basically just starting all over again.

MARK TUSHNET, GEORGETOWN CONSTITUTIONAL LAW PROF.:  I think you could make a not trivial constitutional argument that there‘s a fundamental constitutional right to have the state courts or the fact finders make the right decision, that is, come to the right result.  It‘s just as Doug Kmiec indicated, the lawyers for the Schindlers haven‘t really formulated even that kind of constitutional claim in a way that the courts can get their hands on.  The problem is that it‘s a stretch from existing law.  It‘s not a crazy claim, but it‘d be unusual to find even one federal judge who‘d be willing to accept it at this point.

ABRAMS:  Well, let me—let me read the dissent.  Again, the 11th circuit court of appeals opened the door this morning.  They closed the door this afternoon.  And it seems it was again 10-to-2 in favor of closing the door.  But one of the dissenters wrote the following.  “The relevant question here is whether a rational fact finder could have found by clear and convincing evidence that Ms. Schiavo would have wanted nutrition and hydration to be withdrawn under these circumstances.  The Schindlers carry a heavy burden, but I don‘t believe that this question can be determined in this expedited fashion without a hearing on the merits.”

I mean, Professor Tushnet, it sounds like what that dissenter is effectively saying is there was no way to evaluate this case without first reinserting that feeding tube and then sort of taking a step back and evaluating the case.  But it just seems to me that ignores all of the procedures and all of the appeals in both the state and federal courts that have happened up to this point.

TUSHNET:  The judge is saying that there may be a constitutional right

to have the state courts make the right decision on the merits, be a

rational decision maker, based on the evidence.  The problem is that it‘s

taken almost a week for the lawyers for the Schindlers to even get the case

·         the claim close to that formulation.  And the concurring judge in the 11th circuit said, in effect, that the dissenters had made a better case for the Schindlers than the Schindlers‘ lawyer had actually done.

ABRAMS:  But with that said, Doug Kmiec, I would hate to see or hate to even feel like this case was decided because there was bad lawyering on the part of the Schindlers‘ attorneys.  I mean, I‘m not saying that there was, but it sounds like that‘s what some are suggesting.

KMIEC:  Well, I think there were tactical decisions that were made, and I think some of the lawyering was clearly affected by what I‘m going to call, Dan, the head fake of the United States Congress, basically focusing this issue of—not on the existence of a federal right and the federal requirements for ascertaining whether that federal right was vindicated, but focusing, as you said, on whether or not state law had been observed, whether or not there was a conflict of interest with Michael Schiavo, whether the judge in the state court followed the state proceeding, telling the state—telling the federal court that they could disregard rules of abstention and exhaustion and waiver, all of that was nonsense.  It was a constitutional mistake of a profound order, and it distracted the lawyers from their main argument.

ABRAMS:  Bottom line.  I get a yes-or-no answer on this.  Professor Tushnet, this is over, right?

TUSHNET:  For all practical purposes, it‘s over, yes.

ABRAMS:  Professor Kmiec?

KMIEC:  I think, for all practical purposes, it is, but it‘s sad that it is, because it‘s over for Terri Schiavo, but her life has to be one that continues in the context of this constitutional discussion.

ABRAMS:  Yes.  All right.  Professor Kmiec, Professor Tushnet, thanks a lot.  Appreciate it.

We‘re watching the hospice where Terri Schiavo is spending what seems to be her final days, hours.  We‘ll bring you the latest if anything happens there.

Coming up: A senior member of the Boy Scouts of America pleads guilty to owning some child porn.  Maybe a little bit more than that.  A convicted child offender joins me with an inside look on how to spot guys like this and tells us whether they‘re all sort of trying to get jobs near kids.  And in the Michael Jackson case, the psychologist weighs in on whether the accuser could be making his story up.  And:

(BEGIN AUDIO CLIP)

911 OPERATOR:  Are you the only—are you the one there besides mommy and daddy?

UNIDENTIFIED CHILD:  (UNINTELLIGIBLE) my mommy and daddy and they didn‘t even answer.

(END AUDIO CLIP)

ABRAMS:  It‘s a heart-wrenching 911 call.  A brave little 5-year-old girl calls for help just after her parents were shot.  (UNINTELLIGIBLE) a tape and the sheriff investigating.  It‘s coming up.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  We‘re back.  The latest on a story out of Texas.  A high-ranking official of the Boy Scouts, the man who ran a task force formed to protect kids from sexual abuse, pled guilty today to a federal child pornography charge.  Douglas Sovereign Smith, Jr., worked for the Scouts for 39 years, acknowledged receiving and sending more than 500 Internet images of boys, some younger than the age of 12, posing nude or engaging in sex acts, according to the U.S. attorney there.  Smith was part of an Internet buddy list, they say, of collectors who share files throughout the world.

So the question that we want to know, was he a danger to the kids that he worked with?  The answer seems obvious, but...

Joining me now with a unique perspective is Jake Goldenflame, a recovering sex offender.  Mr. Goldenflame is a convicted child molester and author of the book “Overcoming Sexual Terrorism: How to Protect Your Children from Sexual Predators.”  And Susan Filan.  She‘s a Connecticut a state prosecutor.

All right, you know, Mr. Goldenflame, let‘s start out, because people always ask this question—lay it out for us again what you were convicted of.  And then I want to start asking you some questions involving this case.

JAKE GOLDENFLAME, RECOVERING SEX OFFENDER:  I was convicted of two counts of child molestation against my daughter.  She was very young.  She was 5 years old by the time we got to court.  And for a number of years before that, I was a person who went after adolescent boys and sought sex with them in exchange for money.

ABRAMS:  All right.  And you now say that you are reformed.  Explain to us again how you go about dealing with what you say are still the urges to do this.

GOLDENFLAME:  Yes.  When I was in prison, I sought for and received help.  I got a lot of it.  I was in every kind of psychotherapy that they had available, I worked with the prison chaplain to get grounded on ethics and morality, and in the last two years, I was taught the techniques call “relapse prevention” that are used by a number of people with various kinds of addictions, and all of these things paid off.  What I found is there were firewalls in place inside me that hadn‘t been there before, and as a result, yes, urges still continue to come up as I go about my life.  On the streets, anyplace else, I‘ll see a kid that may be attractive to me, but that firewall springs up right away and it doesn‘t become a plan.  It‘s an urge that doesn‘t become a plan because a plan leads to an act.  It‘s just an urge.  I turn away from it.  The urge disappears, and I go on with my life.

ABRAMS:  And you talked a lot about how to go about stopping child molesters.  So let me ask you.  So this guy‘s working for the Boy Scouts, and he‘s trading in pictures of child porn.  How dangerous is a guy like that?

GOLDENFLAME:  Well, I‘ve worked with several people in the federal prison system who were convicted of having child pornography, and their cases indicated that they had no contact with children.  Their offenses were just possessing child pornography.  On the other hand, it‘s quite common for pedophiles to use child pornography to stimulate themselves or to show to children to entice them to try some of these acts.  So in a case like this gentleman‘s, without more evidence, you can‘t say.  He could be either one, in either of those classes.

ABRAMS:  Did you used to look at child porn?

GOLDENFLAME:  Yes, I did.  Yes.  Yes.

ABRAMS:  So this guy‘s now been caught.  He‘s pled guilty.

GOLDENFLAME:  Yes.

ABRAMS:  Is it—do you find it to be a pretty regular occurrence that child molesters, either convicted or not yet found, are working with kids?

GOLDENFLAME:  I‘m not sure I understand your question.

ABRAMS:  People who are attracted to kids, are they working with kids a lot?

GOLDENFLAME:  Listen, youth organizations are magnets for child molesters.

ABRAMS:  How do you stop that?  How do you prevent that from happening?

GOLDENFLAME:  You can...

ABRAMS:  How do we keep you guys—how do we keep you guys out?

GOLDENFLAME:  You can‘t keep us out, but you can keep us from striking, and here‘s how to do it.  You have a rule in your organization that no child is ever left alone with a single adult.  There are always two or more adults, preferably of the opposite genders, but always two or more adults with every child.  The result is that if a person like me were to try and infiltrate the Boy Scouts or the Little League or whatever organization you want, what I would find immediately is I can‘t strike because I can‘t get to these kids.  There‘s always someone else around.  And predators are people who are not low-cal guys.  They go to feed elsewhere.

ABRAMS:  Let me ask you, do you buy this?  This is the attorney for this guy who‘s now pled guilty, John Strickland.  I want you to listen to it and ask me (SIC) if you buy it.

(BEGIN VIDEO CLIP)

JOHN STRICKLAND, SMITH‘S ATTORNEY:  He is contrite.  He‘s accepted responsibility.  I think from day one, his greatest concerns were his family and the Boy Scouts.

(END VIDEO CLIP)

ABRAMS:  Do you buy that?  Mr. Goldenflame, do you buy it?

GOLDENFLAME:  That he‘s contrite?

ABRAMS:  Yes, he‘s contrite and that his only concern is for the Boy Scouts and his family?

GOLDENFLAME:  Well, of course he‘s contrite now.  He‘s been caught.  And what you‘ve got here is you‘ve got a person—and I certainly can identify with it.  You‘ve got a person who‘s two people in one, like Jekyll and Hyde.  And part of him, no question about it, a very decent, upstanding, moralistic person.  But there‘s another person inside there who is exactly the opposite.  And that opposite part took over in him, and now he‘s been caught and he‘s got to own to the fact that he‘s also that person, too.  That‘s very painful to do.  I‘m sure he‘s contrite.  I‘m sure he‘s sorry.  But the fact of the matter is, this is a man who needs help.

ABRAMS:  All right, Susan Filan, you‘ve been listening to Jake Goldenflame talking about this, I don‘t know, this Boy Scout.  I mean, what do you make of this?

SUSAN FILAN, CONNECTICUT STATE PROSECUTOR:  Oh, it‘s sad, Dan.  I mean, to tell me that he isn‘t dangerous, I don‘t buy it for one minute!  To tell me that he‘s contrite and all he cares about is the Boy Scouts and his family—baloney!  He‘s caught.  He‘s facing prison.  That‘s what he‘s contrite about.

These people are so incredibly dangerous!  And I have to say this, Dan, if I‘m allowed to say this.  Everyone‘s been raising such a fuss in the Jackson case about this 1108 evidence coming in, prior bad acts, uncharged misconduct.  That‘s exactly why we let it in!  This is what child molesters do!  They don‘t get caught.  They keep doing it and they keep doing it.  What we have to remember here is our children are at stake, and that‘s who needs to be protected, and that‘s what these laws are about!

ABRAMS:  Yes.  And you agree with that, Mr. Goldenflame, don‘t you?

GOLDENFLAME:  I do, indeed.  See, I think this.  You know, this didn‘t begin with his downloading his first pornographic image.  This began when he began having the urge to go ahead and seek pornographic images of kids.  That‘s the time when he should have gotten help.  He was still in a safe harbor.  He could have reached out for help.  He chose not to, and as a result, he lost it.  And as a result, went into it and he lost his world.  Five hundred images tells me he‘s addicted by that point.  He‘s beyond the ability to reach out for help.

ABRAMS:  Let me read a statement from the Boy Scouts of America.  “We are dismayed and shocked to learn of the charge against Mr. Douglas S.  Smith, Jr., former employee with the Boy Scouts of America.  Smith was employed by the organization for 39 years with no indication of prior criminal activity.  He was not in a leadership position which involved working directly with youth.  Smith was placed on paid administrative leave immediately when we learned he was being investigated for a crime, and he chose to retire shortly thereafter.”

Well, you know, what to make of this?  This is—it‘s scary stuff. 

Jake Goldenflame, keep fighting the urge, as they say.

GOLDENFLAME:  Thank you.

ABRAMS:  And Susan Filan, you‘re coming back on Jackson in a minute, all right?

All right, we got news only moments ago that the parents of Terri Schiavo have just filed with the United States Supreme Court.  Ladies and gentlemen, this has got to be their final legal effort.  This is it.  They‘ve exhausted all other avenues.  Terri Schiavo likely has hours, if days, at most, to live.  And this is their final effort that has just been filed at the U.S. Supreme Court.  If there‘s any news in that regard, we will bring it to you immediately.

Coming up, one of the most heart-wrenching 911 calls I‘ve ever heard.

(BEGIN AUDIO CLIP)

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

UNIDENTIFIED CHILD:  Uh-huh.  And there‘s blood.

911 OPERATOR:  All over the place?

UNIDENTIFIED CHILD:  Not all over. There‘s blood on the bed and blood on the floor.

(END AUDIO CLIP)

ABRAMS:  The 5-year-old girl‘s parents shot, her mother dead, her father bleeding to death.  We have the 911 call, and we‘re going to talk to the sheriff investigating this case that might have been avoided.  And a psychologist who first examined Michael Jackson‘s accuser tells jurors he has no reason to believe the boy‘s making up a story.  Coming up.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  We‘re back. 

Let me warn you, this is one of the most heart-wrenching 911 calls I‘ve ever heard, and the crime possibly avoidable; 5-year-old Tia Hernlen wakes up in the middle of the nation to the sound of gunshots, finds her parents bleeding in their bedroom.  Both have been shot, later died. 

In just a few minutes, we‘re going to talk with the sheriff investigating the case, but, first, her call to 911, you really can only describe it as chilling and little girl as so brave.

(BEGIN AUDIO CLIP)

OPERATOR:  911, what is your emergency?

TIA HERNLEN, 5 YEARS OLD:  Hello.

OPERATOR:  Hello.  Is everything OK?

HERNLEN:  My mommy and daddy...

OPERATOR:  Uh-huh.

HERNLEN:  I think there is a bullet on the floor.

OPERATOR:  There‘s a what?

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

OPERATOR:  He did?  Where‘s mommy at?

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

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

HERNLEN:  I‘m 5 years old and I have a dog in a house.

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

HERNLEN:  Uh-huh, and there is blood.

OPERATOR:  All over the place?

HERNLEN:  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?

HERNLEN:  And three cats.

OPERATOR:  And you got some cats, too?

HERNLEN:  Three cats and one dog.

OPERATOR:  OK, are you the only one there besides mommy and daddy?

HERNLEN:  Well, I said “Mommy” and “Daddy” and they didn‘t even answer.

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

HERNLEN:  There was, I think I heard a gunshot.

OPERATOR:  You heard a gun?

HERNLEN:  Yes, and I see a bullet lying on the floor.  I think it‘s a bullet.

OPERATOR:  Really.

HERNLEN:  Mmm-hmm.

OPERATOR:  Who has a gun in the house?

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

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

HERNLEN:  Can you send a deputy down here?

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

HERNLEN:  Mmm-hmm.

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

HERNLEN:  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?

HERNLEN:  Nnn-nnn.

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

HERNLEN:  Well, I was in my room sleeping ‘till I heard a noise shot and it woke me up.

OPERATOR:  OK, listen to me.  Is your phone the kind of phone you can take with you and walk around?

HERNLEN:  Um, 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 will stay on the phone with you, OK?

HERNLEN:  But...  

OPERATOR:  I will not hang up.

HERNLEN:  I‘m naked.

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

HERNLEN:  Mmm-hmm.

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

Stay on the phone, alright?

HERNLEN:  OK.

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

HERNLEN:  And I know what to do for (INAUDIBLE)

OPERATOR:  You did great.

HERNLEN:  I knew.

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

HERNLEN:  I‘m to the door.  I‘m unlocking it.

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

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

OPERATOR:  Bye, sweetheart.

HERNLEN:  Um, he‘s here.

OPERATOR:  OK, sweetheart.  You be good, OK?  Bye-bye.

(END AUDIO CLIP)

ABRAMS:  The whole tape took like five minutes or something.  We cut it down a little bit. 

The alleged shooter later turned the gun on himself.  Tia‘s mother, Julie Hernlen, had tried to get a protective order against that man, David Johnson, who police now believe murdered the couple.  Julie Hernlen claimed Johnson stalked her and her family for months, even reportedly threatened to do exactly what he did Monday night, harm the family, kill himself.  But a judge denied the request, apparently based on Florida law. 

A few hours ago, I spoke to the sheriff of Volusia County, Ben Johnson. 

(BEGIN VIDEOTAPE)

BEN JOHNSON, VOLUSIA COUNTY SHERIFF:  Well, she‘s a very smart little girl.  And her parents, 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 would 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, had you actually been called to the house based on the threats that the mother said she had 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, 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 the 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, etcetera, 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, asked 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 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 had been found due to a burglary at his household, 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 it 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 would have never spent any time in jail on anyway on the charge 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—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:  When we come back, more on this 5-year-old at the center of her parents‘ double homicide.  And, later, what is the possibility that the accuser in the Michael Jackson case could be making this story up?  Well, the psychologist who first examined him says not much of a chance. 

Stay with us. 

(COMMERCIAL BREAK)

ABRAMS:  One of the most heart-wrenching 911 calls I think we‘ve ever played, a 5-year-old at the center of her parents‘ murder.  The latest coming up next. 

(COMMERCIAL BREAK)

(NEWS BREAK)

(BEGIN AUDIO CLIP)

OPERATOR:  And what made you wake up tonight?

HERNLEN:  There was, I think I heard a gunshot.

OPERATOR:  You heard a gun?

HERNLEN:  Yes, and I see a bullet lying on the floor.  I think it‘s a bullet.

OPERATOR:  Really.

HERNLEN:  Mmm-hmm.

OPERATOR:  Who has a gun in the house?

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

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

HERNLEN:  Can you send a deputy down here?

OPERATOR:  I promise I will.

(END AUDIO CLIP)

ABRAMS:  “Can you send a deputy down here?”  It‘s an amazing request from a 5-year-old who had just found her parents shot in their bedroom. 

Here now with more on this story is Alicia Caldwell, a reporter with “The Orlando Sentinel.”

Thanks a lot for coming on the program.  We appreciate it. 

All right, lay out for us how the authorities believe all this happened. 

ALICIA CALDWELL, “THE ORLANDO SENTINEL”:  Well, according to Sheriff Johnson, the suspect, David Johnson, who is no relation, burst into the home through a back door after cutting a screen early Monday morning, went through the house to the bedroom and opened fire. 

The length of time it took or any of those details haven‘t been released as yet.  I‘m not sure if they‘re known.  But he‘s believed to have then left to the house, gone to his own home and sometime later shot himself to death. 

ABRAMS:  And the belief is that he was angry because he thought, apparently mistakenly, that these parents had turned him in for growing marijuana in his home? 

CALDWELL:  Right.  That‘s what the sheriff‘s office has told us and that is what court records show, that Julie Morgan-Hernlen was—her impression of the situation that David Johnson had threatened her, accusing her and her husband of turning him in to police, which, as Sheriff Johnson indicated earlier, was just not the facts. 

ABRAMS:  Why didn‘t they get—why weren‘t they able to get a restraining order?  I mean, it sounds like the mom, Julie, was asking, begging, saying look, I‘m scared of this guy.  Is it just Florida law? 

CALDWELL:  Well, according to Judge Richard Graham, who declined the request at the time, they didn‘t meet the requirement of showing two acts of violence.  He also indicated that Julie Morgan-Hernlen filed the request on behalf of her 5-year-old daughter, Tia.  And, in the application, there was no explicit evidence or citation of a threat or actual harm to Tia, which he said at the time was one more reason. 

ABRAMS:  And he spoke—he has made some comments.  The judge has made some comments about this, right? 

CALDWELL:  He has.

In an interview with me on Monday afternoon, he indicated that, in hindsight, he feels like he should have approved it, wondering out loud, Sheriff Johnson did, would it have changed the situation?  He said he felt horrible about the way the situation resulted, but he did what he felt was appropriate at the time, also saying that he would have approved the application had Mrs. Hernlen brought it back to him with even another police report, which was filed after the rejection. 

ABRAMS:  Yes.  The law in Florida says, in order to—this is what the law the judge relied on was—“Repeat violence means two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner‘s immediate family.”

But the thing that‘s disturbing is, it sounds like this guy threatened to do exactly what he ended up doing, hurting, killing them and then killing himself. 

CALDWELL:  Right.  According to court records, which are, unfortunately, the only thing I can rely on right now, that‘s exactly what he said.  He said he would carry out this crime in this manner, but his reliance on his mother not wanting to have her son do that stopped him at the time. 

And then, of course, on Monday morning, police allege that‘s what he did. 

ABRAMS:  And the judge sort of sounds like he‘s blaming himself, huh? 

CALDWELL:  He definitely said he was concerned over his decision and would research on his own whether or not the harassment claims had continued or were reported.  He said it wouldn‘t make him feel better, but it‘s something that he wanted to know. 

ABRAMS:  Very quickly, I asked the sheriff this.  I‘ll ask you again. 

Any news on Tia, the little girl? 

CALDWELL:  Not that I‘m aware of.  At last, I was told that she was with relatives.  And relatives have declined to speak with us at this point, for the most part, asking for privacy and thanking the community for their well-wishes for the family. 

ABRAMS:  Yes.  It seems like one smart little girl. 

All right, Alicia Caldwell, thanks very much for coming on the program. 

CALDWELL:  Thank you. 

ABRAMS:  Appreciate it. 

Coming up, a child psychologist takes the stand in the Michael Jackson case.  This is a big witness, because the prosecution said, this guy is key to the question of, is he making it up?  The defense says he is.  This guy says, I don‘t think so. 

Coming up, the latest in the Jackson case. 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

MICHAEL JACKSON, DEFENDANT:  He was a wonderful friend and a humanitarian.  We‘ll all miss him very much.

(END VIDEO CLIP)

ABRAMS:  Michael Jackson early talking about, of all things, Johnnie Cochran, of course, who had been his attorney.  He died, of course, yesterday.  We‘ve been covering that.  Again, best to Johnnie. 

Back inside the Santa Maria courtroom, jurors in the Jackson case heard from a prosecution witness, a key one, the psychologist, Stan Katz, the first to report the accuser‘s claim that Michael Jackson abused him.  Katz testified it would be extremely rare for a preadolescent to make false allegations against a male. 

Earlier, Cynthia Bell, a flight attendant that flew with the Jackson and the family of the accuser in 2003, said the boy had been unruly, at one point, throwing mashed potatoes at a sleeping doctor who was accompanying Jackson. 

Joining me now, Court TV correspondent Savannah Guthrie, who was in court in Santa Maria today, also criminal defense attorney Mickey Sherman and, once again, Susan Filan, Connecticut state prosecutor.

All right, Savannah, so, bottom line is, Katz is saying—I mean, it doesn‘t seem to me that important that Katz is saying, ordinarily, 12 to 13-year-olds don‘t make things up.  I mean, so what?  So they don‘t ordinarily make things up.  What else did he say? 

SAVANNAH GUTHRIE, COURT TV:  Not very much, Dan.  This is what is surprising. 

I agree with you.  I thought this was going to be a big witness.  He was on the stand about 10 minutes on direct.  I think the prosecutors made a strategic call not to keep him up there very long.  They didn‘t want to reopen his whole interview that he did with the accuser and the brother, so that then Mesereau could come and mine it for all of the inconsistencies and reopen that wound.  So, he was on a very short time.  He just established the timeline that, he interviewed the accuser and the brother in May and June of 2003. 

ABRAMS:  Yes, this is one of the things that he said: “It would be highly unusual for a 12- to 13-year-old boy to make false accusations against a male.  In my experience, a child who is going to fabricate abuse claims can‘t be consistent or hold to that for very long.  They don‘t maintain consistent allegations when they start to believe the disadvantages outweigh the advantages.”

You know, OK, Susan, but this is a kid who admits that, at least with regard to certain issues, he had lied before in the context of a civil lawsuit when it came to allegations that mom had been molested, essentially, by some security guards. 

SUSAN FILAN, PROSECUTOR:  Dan, I really agree with Savannah‘s analysis. 

I think that the prosecution is sick of the blistering cross-exam by Mesereau.  And what they‘re afraid of opening themselves up is the inconsistencies.  So, if the psychologist is going to go through what the accuser told in detail—and, again, he can‘t because the accuser didn‘t waive privilege, and I think that‘s a strategy call, because, typically in cases like this, the privilege is waived for this very purpose. 

I think the prosecution didn‘t want that in this case.  Let the psychologist testify for the limited purpose that it was reported to him and he, as a mandated reporter, had to report it, thereby bolstering the fact that it happened.  I also—sorry, Dan. 

(CROSSTALK)

ABRAMS:  Mickey—I just want to go to Mickey on the flight attendant.

You know, Mickey, flight attendant Cynthia Bell, she doesn‘t seem to help the prosecutors at all.  I mean, bottom line is, she says she put the wine in the Coke cans herself.  She never saw Michael Jackson serving it to the boy.  And the boy was obnoxious and rude.

(CROSSTALK)

ABRAMS:  Go ahead, Mickey, yes.

MICKEY SHERMAN, CRIMINAL DEFENSE ATTORNEY:  I think that they had some intern interview her, who asked her, now, you did see the Coke and the booze, right?  Yes.  OK, great.  Put her on, on Tuesday.  I mean, it was insane.  It‘s like they didn‘t interview her. 

ABRAMS:  Let me read this from—this is part of the examination. 

This seems to be the best that they got out of her.

“When Mr. Jackson was seated next to the accuser, was he physically touching him?”

“Did they have physical contact?”

“Yes, was he physically touching him in any way?”

“Yes, at times.”

“Did Mr. Jackson at times cuddle with the accuser?”

“I wouldn‘t say cuddle.  He had his arm around him listening to music at times.”

“So, how do you define cuddling”?

“Cuddling?  I guess I would have to show you.

“OK, so it didn‘t fit your definition of cuddle, but he did have his around him at times.”

“Yes.‘

I mean, Savannah, was it as bad as it sounds for the prosecutors? 

GUTHRIE:  Yes, it was excruciating. 

The prosecutor, it was like pulling teeth trying to get anything good out of this witness.  This witness was only too happy to regale the jury with how awful this accuser was from the second he got on that flight.  And on redirect, the prosecutor tried to suggest, well, maybe this child was so obnoxious, it was because he was drunk. 

But, no, she said, he was that rude from the second he got on the flight when he threw his book bag at her and then later threw mashed potatoes in the face of Jackson‘s sleeping doctor.  It was really bad.  This witness just was—they had their hands full with her. 

ABRAMS:  Mickey, are the prosecutors spending too much time playing defense, I mean, not on this particular issue? 

SHERMAN:  That‘s exactly what—you know, in the memory of Johnnie Cochran, they‘re playing thing case like Marsha Clark did. 

They‘re trying this case by looking over their shoulders to see what those guys are going to do, which Johnnie was so effective in having them do.  They‘re trying, especially Dr. Katz—that was a gutless move.  This is not just an expert.  This is the guy who interviewed the victim and heard him say that he was molested.  And you don‘t have him say that?  You don‘t violate or invade the privilege? 

ABRAMS:  But it seems like a lot of their witnesses, Mickey, are just here to say, oh, you know, it was the father who was the scammer and not the mother, because we know you‘re going to argue it was the mother.  Do you think it would be better for the prosecutors to let them just present their case, let the defense do it, and then bring it back later in rebuttal? 

(CROSSTALK)

SHERMAN:  Try their own case.  Don‘t spend so much time anticipating what their case is going to be or what their cross-examination is going to be. 

ABRAMS:  Susan, you agree with that? 

SHERMAN:  And that‘s exactly the way the O.J. case was lost. 

FILAN:  Well, on the other hand, though, OK, 13-year-old boys will be 13-year-old boys.  And maybe that‘s what they do.  They throw mashed potatoes at a sleeping doctor.  I think you can make the argument—I don‘t know how credibly, Dan, but I think you can make the argument that a boy who‘s been molested is going to act out.  A boy who‘s been taken into the...

(CROSSTALK)

ABRAMS:  Wait.  Wait.  Wait.  Wait.  He hadn‘t been molested at this point yet.  The timeline doesn‘t work.

SHERMAN:  Yes.  And this guy wasn‘t—this kid wasn‘t sitting in coach on American Airlines.  He‘s in a private jet. 

ABRAMS:  Yes. 

SHERMAN:  If you‘ve ever flown on a G4 Challenger, it‘s the most pampered place in the world.  And this kid is obnoxious.

(CROSSTALK)

ABRAMS:  Yes.  I know.  I hate it when I‘m flying—of course, that is the only way I fly.

(LAUGHTER)

SHERMAN:  I notice that.

ABRAMS:  Yes.  That‘s a joke.

Savannah Guthrie, Mickey Sherman, Susan Filan, thanks.

We‘ll be right back.

(COMMERCIAL BREAK)

ABRAMS:  That‘s a live picture of the hospice where Terri Schiavo is spending what are likely her final hours.  Her parents have filed a final appeal with the U.S. Supreme Court.  Joe Scarborough will have a lot more on that coming up. 

That does it for us tonight.  Be sure to tune into our regular edition of the program at 6:00 p.m. Eastern.  Thanks for watching.  I‘ll see you back here tomorrow.

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

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