updated 4/22/2005 2:41:12 PM ET 2005-04-22T18:41:12

Guest: Jim Moret, Susan Filan, Jonna Spilbor, Michael Kiefer, Ron Kuby, Steve Fishman, Tom Smart

DAN ABRAMS, HOST:  Coming up, as prosecutors near the end of the case against Michael Jackson, they try to show Jackson gave specific instructions not to let the accuser leave Neverland. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  A former security guard at Jackson‘s ranch tells jurors a notice in the guard station said the boy could not leave the property, but would guards have let any children leave alone?  And how close are prosecutors to wrapping the case? 

And a prison guard faces off in court with the prisoner who allegedly held her captive for 15 days and sexually assaulted her.  He‘s representing himself so he cross-examines her in court.  We‘ve got the tape. 

Plus, new information in the Elizabeth Smart case.  Her uncle now says police probably should have found the Utah teen a lot quicker than nine months after being kidnapped.  And how is she doing now two years later?  We talk to Tom Smart. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, prosecutors in the Michael Jackson case say they‘ll wrap up the case sometime next week.  Today a former Neverland security guard says he was instructed to prevent the accuser, the boy, from leaving Jackson‘s Neverland Ranch.  Brian Barron told juries about an entry in a Neverland gate log on February the 19th, 2003, it‘s right at the height of this alleged conspiracy to keep the family at the ranch.

The log said—quote—“the kids, referring to the accuser and his siblings, are not to leave per Joe.”  That‘s the ranch manager.  And a notice posted on the board at a guard booth early in 2003 read the accuser is not allowed off the property. 

But the witness told jurors when he saw the mother during her alleged imprisonment, she didn‘t appear to be upset about being there.  He also provided a peek into what it was like to work for Jackson saying employees were often tense when Jackson was at Neverland.  He‘s kind of like a perfectionist.  Everything has to be right.  Everyone was walking on pins and needles a little more to make sure everything was right. 

Joining me now, attorney and senior correspondent for “Inside Edition,” Jim Moret, who has been following the trial from inside the courtroom.  Jim, before we talk about this witness, prosecutors really almost done with the case? 

JIM MORET, “INSIDE EDITION” SENIOR CORRESPONDENT:  They told the judge they were almost done.  They said they needed until next Friday to wrap up this case but there‘s still a number of witnesses left.  You have another 1108 witness that‘s a prior bad ax witness.  You‘ve got a couple of more conspiracy witnesses and you have a financial witness and you also might have a witness, a psychologist to talk about battered women syndrome to try to explain the demeanor of the boy‘s mom.  It‘s hard to believe, but they have promised the judge they‘ll be done next Friday. 

ABRAMS:  Wait, this battered women expert is going to what, explain why the mom is kind of wacky in general? 

MORET:  Not so much that.  I don‘t know. 

(LAUGHTER)

MORET:  We‘ve been covering—we‘ve been talking about her testimony for several days and a lot of it is simply unexplainable.  However, some of her behavior may be explainable according to a psychologist, too.  Because remember, this woman has testified under oath and we know from other legal actions taken that she was an abused spouse and she may have reacted in certain conditions and that may explain her sense of being falsely imprisoned and the way she reacted to Jackson‘s so-called henchmen. 

ABRAMS:  Yes.  I don‘t think that that‘s worth it but all right.  Jim,

this issue of the sign, this log at Neverland that says the boy can‘t leave

·         this is number two—let me read you—this came up on the cross-examination of the witness, all right? 

Just in general if children are on the ranch, are guests at the ranch and they‘re staying there, and there‘s not a parent present, would it be the policy of the ranch not to allow those children to go off the ranch without supervision? 

Yes, we would not let them go off the property by themselves.

I guess the difference here is, Jim, that they specifically name the boy and his brother, right? 

MORET:  Right.  And don‘t forget, this witness, this particular witness is very credible, Dan, because he‘s also—he was moonlighting as a security officer for Jackson while he was a local police officer, still is a local police officer.  He was asked specifically if anything unusual had been happening at the ranch, if he saw any illegal activity, any suspect activity, what would you have done?  He said I would have reported it.  I would have taken action.  That‘s actually good for the defense. 

According to the defense, the boy in question was not with his mom at the time and that‘s why presumably this notice was put up there, but you‘re right.  It does sound somewhat sinister when you bring this into this idea of conspiracy and false imprisonment.  Was this family being kept against their will?  But remember one other thing.  You don‘t have to leave from the front gate of this property, Dan.  Even though the front gate appears secure and there‘s a wall on each side about 30 feet.  After that, you can simply walk off the property and there have been a number of intruders who have gotten onto the property, so presumably if this young boy wanted to leave, he really could have done so by circumventing the security. 

ABRAMS:  All right.  Let me just read one more issue—came up earlier.  This is a former school counselor who is talking about the kids being under surveillance at the school.  The question was, as a result of the information that you received from the accuser‘s stepfather, what did you do? 

I went down to the street and approached a car that had a gentleman in it that was videotaping students. 

Did you actually see the camera?

Yes, in the driver‘s hand.

And in what direction was it pointed?

Out the windshield.

They were later asked what did you do?

I walked up to the driver and told him that he couldn‘t videotape students.  I said you need to stop videotaping students.  He said OK and set the camera down on the seat or floor of the car.

All right, look, “My Take”—this conspiracy is the most serious crime Jackson is accused of and the one where prosecutors still have the weakest evidence.  I‘m just not convinced that today and yesterday changed that. 

Joining us now is Connecticut state prosecutor Susan Filan, who was in court today and criminal defense attorney Jonna Spilbor.  All right, Susan, your take on the conspiracy, the most serious charge against Michael Jackson.  You think that the prosecutors are actually delivering as promised on that? 

SUSAN FILAN, CONNECTICUT PROSECUTOR:  Well a conspiracy charge by its definition is going to be a little bit more vaguer than the actual crime itself.  What you have here is a crime that occurred over a period of time, wasn‘t necessarily witnessed by any one person, and it‘s a compilation of facts and events that have to add up in the jury‘s mind to guilt beyond a reasonable doubt. 

ABRAMS:  Yes.

FILAN:  But what you have here Dan, is you do have some significant corroboration of some of the wacky mom‘s testimony, which is if she‘s so incredible, it‘s quite surprising that there‘s as much corroboration as she is.  That sign, singling out her son...

(CROSSTALK)

FILAN:  ... don‘t let him leave, is particularly sinister especially if there‘s a policy that no kid could be allowed off the ranch...

ABRAMS:  Right and no...

FILAN:  ... and the videotaping, the surveillance...

ABRAMS:  Right and there‘s nothing else in the log, which specifically identifies any other kid.  Jonna, at the very least it seems that they were weirdly obsessed with these kids at the Jackson compound. 

JONNA SPILBOR, CRIMINAL DEFENSE ATTORNEY:  You see that presupposes, Dan that the jury believes anything that they heard before today.  In order for any of this evidence to matter on the conspiracy, the jury has to believe the cornerstone of the conspiracy case which came from the mother‘s lips over the past four days and they have no reason to do that because the prosecutor based its conspiracy case on a woman who victimized...

ABRAMS:  Right.

SPILBOR:  ... the entire state of California by committing welfare fraud.

ABRAMS:  By changing the subject you seem to be conceding that this witness was kind of strong. 

SPILBOR:  ... change the subject.  No, honestly I don‘t—I really think we have to build the evidence one upon another and for today‘s evidence or yesterday‘s evidence to make any sense, you have to first believe that there was some modicum of a conspiracy going on and listening to the mother, who committed welfare fraud, who admitted lying on the stand, we can‘t even get that far. 

ABRAMS:  But see Jim...

FILAN:  Dan...

ABRAMS:  Jim, it seems to me that even if you don‘t believe that what the mother is telling is the truth, I think you‘ve got to believe the mother thought at the time that there was something going on, meaning she may have been inventing it in her head but she talked to all of these other witnesses who say, yes, I talked to her at the time and she seemed completely freaked out. 

MORET:  Well, but that is not unusual for this woman.  You know, she‘s complained about this type of thing in the past.  Yes, was she apparently afraid?  She very well might have been.  Does it make sense?  I don‘t know.  I don‘t know...

ABRAMS:  I don‘t know either. 

(CROSSTALK)

ABRAMS:  I don‘t know, either but...

(CROSSTALK)

UNIDENTIFIED FEMALE:  ... if she believed it.

ABRAMS:  I don‘t know either, but the thing I‘m wondering is if you accept that as a fact, Susan, right...

FILAN:  Right.

ABRAMS:  ... the fact that the mother felt freaked out, maybe she had no reason to feel that way but that she did and then you have on top of that the fact that Neverland guards are putting in the log the names of these kids and saying they can‘t leave, you know, it does start to feel like they‘re building something here although, again, I don‘t think they‘re going to prove it beyond a reasonable doubt. 

FILAN:  Except Dan that‘s not the way to build a case.  You don‘t take a victim‘s subjective state of mind and say that she felt freaked out and then find corroborating evidence.  That just doesn‘t work.  I mean then anybody could allege any wacky thing...

ABRAMS:  No...

(CROSSTALK)

ABRAMS:  No, no, wait...

(CROSSTALK)

ABRAMS:  No, wait you‘re missing the point.  It‘s not that they‘re corroborating that she felt it.  That to me seems to be a fact.  I mean I think it‘s hard to dispute that she felt that way at the time based on the number of witnesses who she spoke to, some of them objective witnesses.  I‘m saying that there‘s now corroboration for the fact that for some reason, the Neverland employees were being told specifically about these kids for some reason. 

FILAN:  Right.  And also, don‘t forget that at the time that she says that she‘s imprisoned, she gets a call from the school or the school tries to contact her.  She‘s not there but they leave a card and eventually she gets the word to call and she calls them back, and the school says to her hey, look lady your kids have been out of school for over 10 days.  Either get them out and give us our...

ABRAMS:  Yes.

FILAN:  ... textbooks back or get them back here right away. 

ABRAMS:  All right.

FILAN:  She says what if I can‘t come and un-enroll them?  They say well you better have somebody and who comes and gets these kids out of the school...

ABRAMS:  Yes.

FILAN:  Vinnie Amen...

ABRAMS:  Yes, one of the alleged co-conspirators...

FILAN:  Amen, I mean that‘s...

ABRAMS:  All right, very quickly...

FILAN:  ... that‘s significant.

ABRAMS:  ... Jonna, I want to—the grandmother testified yesterday about how different the kids were afterwards.  Those children that came—this is after being at Neverland—were not my grandkids.  Their entire life my grandkids and I were close.  I was always very important for all three of them.  When they came back, they didn‘t talk to me the same way.  They were different kids.  Even up until now, he‘s not the same child.

Question:  You said—OK, that‘s it.  Let‘s skip the next one.  So the bottom line is did the grandmother you think Jonna have any significant testimony?  She seems to corroborate again mom seemed kind of freaked. 

SPILBOR:  You know absolutely not, Dan.  It‘s not uncommon for a 13-year-old kid to stop, you know, excuse me, loving his grandmother especially when he‘s been spending time with a mega superstar on the Neverland compound.  I don‘t think the grandmother‘s testimony amounts to a hill of beans.  Neither does the entire conspiracy theory or the charge.  You know I had a client one time Dan who honestly believed that the government implanted a chip under his skin so they could track his every move because he held like all the copyrights to the United States in his head...

ABRAMS:  Yes.

SPILBOR:  ... and he honestly believed it, but you know what...

ABRAMS:  Yes.

SPILBOR:  ... it wasn‘t true...

ABRAMS:  But then—but you know what...

(CROSSTALK)

ABRAMS:  Jonna...

(CROSSTALK)

ABRAMS:  Wait.  Hang on.  Hang on.  Jonna, if you later found evidence that said you know what?  Actually he did seem to have a copyright or there were people who were following him around...

SPILBOR:  (UNINTELLIGIBLE)

ABRAMS:  ... then you‘d say oh, wait a second.  Anyway, but who knows?  Look, I still think it‘s the weakest part of the case.  I got to wrap it up...

UNIDENTIFIED FEMALE:  I agree.

ABRAMS:  Susan Filan, Jonna Spilbor, Jim Moret, thanks a lot. 

UNIDENTIFIED FEMALE:  Thanks Dan.

ABRAMS:  Appreciate it. 

Coming up...

MORET:  Thank you.

ABRAMS:  ... a prison guard held captive for 15 days.  She was allegedly sexually assaulted.  She faced her captor in court—and get this—he gets to question her.  He is cross-examining her because he‘s serving as his own lawyer. 

And a former utilities trader who gave it up after 9/11 to fight in Iraq is now facing the death penalty for killing two Iraqis.  The Marine lieutenant says it was self-defense, the military says it was premeditated murder. 

Plus, new details in the Elizabeth Smart case.  It took nine months to find the Utah teen.  Her uncle now says the police could have, should have found her a lot sooner.  He‘s here to tell us why and tell us how she‘s doing.

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)

(NEWS BREAK)

ABRAMS:  A prison guard held hostage by two inmates faced one of her captors in the courtroom as he cross-examined her.  Lois Fraley was held captive in a prison tower by convicted robber Ricky Wassenaar and his alleged accomplice, Steven Coy, for 15 days, allegedly beaten and sexually abused during what was the longest prison siege in U.S. history.  The primary focus of the cross-examination, whether Wassenaar sexually assaulted Fraley.  No surprise at times his questioning was just downright infuriating. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Did I ever speak to you about sexual activity other than the one time where I woke you up and asked to you give me oral sex? 

UNIDENTIFIED FEMALE:  Yes. 

UNIDENTIFIED MALE:  At what time was that? 

UNIDENTIFIED FEMALE:  That was the time when you stuck the cigarette -

·         no, I‘ll take that back.  There has been a couple of times...

(CROSSTALK)

UNIDENTIFIED FEMALE:  ... both of them? 

UNIDENTIFIED MALE:  Are they in your statements Ms. Fraley...

(CROSSTALK)

UNIDENTIFIED MALE:  Are you making...

(CROSSTALK)

UNIDENTIFIED FEMALE:  Objection Your Honor...

UNIDENTIFIED MALE:  Sustained.

(END VIDEO CLIP)

ABRAMS:  “My Take”—this is one of those disgusting cases.  Why would she make up that claim?  The evidence, he kidnapped and beat her up likely enough to keep him behind bars for life.  There‘s no way she‘s going to just invent that sort of claim.  This is—just ends up being a perversion of our great justice system that he‘s allowed to engage in this, but this is what happened.

Joining me now Michael Kiefer, a reporter for the “Arizona Republic”.  He‘s been in court for the trial and he also spoke with Ricky Wassenaar twice while he was in prison and civil rights attorney Ron Kuby, who offered to defend Colin Ferguson, remember him?  The man convicted of killing six and injuring 19 back in 1993, boarded a Long Island train, New York‘s Penn Station, opened fire on the train, shooting 25 passengers.  He ended up representing himself in that case.  But Ron was there as he tried to convince him not to. 

All right, Mr. Kiefer, give me a sense here, the defense that this guy is claiming, is he admitting that he kidnapped and assaulted her?  He‘s just denying that he sexually assaulted her? 

MICHAEL KIEFER, “ARIZONA REPUBLIC” REPORTER:  Well he‘s admitting that he took the tower, the prison tower.  He is denying that he sexually assaulted Lois Fraley.  He‘s denying a few of the other allegations, too, that he attempted to kill guards, for instance, but he adamantly denies the sexual assault. 

ABRAMS:  And what—I mean the claim is what, that she didn‘t report it immediately it‘s not true? 

KIEFER:  That‘s hard to figure out because when she first came out of the tower, she told the nurse doing the initial examination that she hadn‘t been sexually assaulted by either man.  And a few days later, she said that Coy had raped her and it took more than a month before she came out and said that Wassenaar had also sexually assaulted her. 

ABRAMS:  All right.  Let me put number—this is some of the cross-examination.  Again, remember this is the actual man who is accused of sexually assaulting her, also cross-examining her.  This is the sort of cross-examination we‘re seeing here. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Do you recall telling Detective Fleming (ph) that on the morning of January the 18th, you, Jason and I were in the northeast corner of the tower of the upper tower at the time that you alleged that I had sexually assaulted you? 

UNIDENTIFIED FEMALE:  Yes. 

UNIDENTIFIED MALE:  Do you recall stating that your back was against the east wall? 

UNIDENTIFIED FEMALE:  Yes. 

UNIDENTIFIED MALE:  And that I was facing you, meaning that I would be facing towards the west? 

UNIDENTIFIED FEMALE:  You would be facing the east.  My back was on the east. 

UNIDENTIFIED MALE:  Your back was against the east while you were facing west? 

UNIDENTIFIED FEMALE:  Correct. 

UNIDENTIFIED MALE:  And I was in front of you? 

UNIDENTIFIED FEMALE:  Correct. 

UNIDENTIFIED MALE:  So I would have been facing east? 

UNIDENTIFIED FEMALE:  East. 

(END VIDEO CLIP)

ABRAMS:  Ron Kuby look, I‘m not going to ask you to be an expert on this case in particular as to the facts of it, but there is something somewhat horrifying abut the idea that this guy who admits that he took the tower and she was kidnapped up at the top of the tower is now getting the opportunity to cross-examine her about the allegations of sexual abuse. 

RON KUBY, CIVIL RIGHTS ATTORNEY:  Well I don‘t know that there‘s anything horrifying about it at all, Dan.  Certainly from the little snippets that we‘ve heard, it certainly sounds like had a lawyer been doing that, he would have raised many of the same points.  You didn‘t report it originally.  Then you claim its rape.  Now then, days later, you change your story again.  That seems like reasonable cross-examination.  If your objection is that the person accused...

ABRAMS:  Yes...

KUBY:  ... of doing that act...

ABRAMS:  That‘s my...

(CROSSTALK)

ABRAMS:  ... that‘s my objection, is the fact that I think he‘s playing games here.  I think he‘s just having some fun.  He‘s getting his last opportunity at freedom here and he figures he might as well torture her a little bit more. 

KUBY:  Well look, I think that there‘s certainly a dimension of that.  I made a little niche market out of representing crazy dangerous, often homicidal people who want to represent themselves and given the spectacular nature of the hostage takeover, the 15 days of negotiations, the way the authorities were constantly going to Wassenaar back and forth, he clearly learned to enjoy the limelight and is enjoying it now representing himself. 

ABRAMS:  Right. 

KUBY:  He also seems to have consistently maintained his innocence of the sexual assault, although he‘s acknowledged enough guilt to get him put in prison for the rest of his life.  So maybe ask yourself why are we trying the sexual assault case at all? 

ABRAMS:  Well because, you know, if she‘s alleging that it happened, it‘s hard to sort of say let‘s move forward with this case against him without a very serious charge going forward. 

KUBY:  That‘s not true, Dan.  I mean if there‘s enough evidence as you said in the opening of this segment to convict him of everything else, besides the sexual assault and keep him in prison for the rest of his life, then why try the sexual assault? 

ABRAMS:  All right...

KUBY:  You‘re trying the sexual assault because this woman wants vindication...

ABRAMS:  I want to...

KUBY:  ... the state wants vindication...

ABRAMS:  I want to play another piece of sound.  Mr. Kiefer, any explanation from...

KIEFER:  Well this was just one of 20 counts against Wassenaar, but one that he particularly doesn‘t want to be found guilty of...

ABRAMS:  But why not—why wouldn‘t the prosecutors have just moved forward, as Ron Kuby says, on some of the other charges and just say you know what, we don‘t want to have to deal with this cross-examination on this case?

KIEFER:  Well it‘s been a very slow and meticulous trial and they‘ve gone through—they‘ve played hours and hours of tapes of negotiations.  This is the—we‘re finishing up the fifth week of the trial and so they have been going into...

ABRAMS:  Yes.

KIEFER:  ... intense detail of absolutely everything that went—that took place during those 15 days. 

ABRAMS:  All right, let me—this is a little graphic.  I want to warn anyone what I‘m about to play is very graphic about what happened.  She says—this is again cross-examination by the prisoner of the guard who he had taken captive.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Did you tell Detective Fleming (ph) that when I inserted the fingers in you that I just left them there without moving them around? 

LOIS FRALEY, PRISON GUARD HELD HOSTAGE:  Not that I recall.  Because I remember you were moving them around a little and then I kept telling you to stop because it was burning. 

(END VIDEO CLIP)

ABRAMS:  I mean, you know...

KIEFER:  That was an interesting moment because that was right at the beginning of the cross-examination and until that point, Lois Fraley had been looking at her family and her partner and that was the moment that she turned to him and her whole attitude changed...

ABRAMS:  Yes.

KIEFER:  ... and from then on she was defiant. 

ABRAMS:  Wow.  All right, I want to play one more piece of sound here.  This is Fraley talking about why she didn‘t tell anyone about it right away. 

(BEGIN VIDEO CLIP)

FRALEY:  He said to me right before we were leaving that if I told anyone about the sexual assault that he would get me, was knowing that he had my I.D. and knowing how inmates can put contracts out on people, I didn‘t want to say anything.  I was scared. 

(END VIDEO CLIP)

ABRAMS:  Ron, you would hope, right, that an attorney had tried to convince him not to represent himself, right? 

KUBY:  Yes, you always do.  I mean you always try to convince the defendant to accept counsel, but you know Wassenaar is a good example.  He‘s obviously very bright, but he‘s somebody who obviously feels that society has never elevated him to the place where he wants to be in the limelight, getting the recognition he deserves.  He‘s also a bit on the paranoid side, which is not unusual of people who represent themselves and not unusual of people who spend a lot of time in prison anyway. 

Paranoids have a lot of real enemies in a place like prison.  So he‘s acting this out.  He‘s doing this and obviously he‘s getting a lot out of it emotionally.  But there‘s another dimension, Dan.  He knows he‘s going to spend the rest of his life in prison.  There‘s no doubt about the guilt of...

ABRAMS:  Right.

KUBY:  ... the charges that put him there. 

ABRAMS:  Right.

KUBY:  So the question is how is he going to do his time? 

ABRAMS:  Right.

KUBY:  Is he going to do his time as a stand-up convict who stuck it to the system...

ABRAMS:  Right...

KUBY:  ... took hostages...

(CROSSTALK)

KUBY:  ... out there fighting...

ABRAMS:  That‘s what angers me about it...

KUBY:  Right—or is he going to do his time...

(CROSSTALK)

KUBY:  ... as a sex abuser who was convicted...

ABRAMS:  Well...

KUBY:  ... after sitting there quietly while his lawyer...

ABRAMS:  Well...

KIEFER:  And that‘s been brought up a few times, if I may interject...

ABRAMS:  Quickly, yes...

KIEFER:  ... Wassenaar had told me personally that he thought that with his high profile, he‘s going to be in pretty...

ABRAMS:  Yes.

KIEFER:  ... high security anyway. 

(CROSSTALK)

KIEFER:  This is not the first time he‘s defended himself. 

ABRAMS:  Yes.

KIEFER:  He defended himself in a trial in ‘97.  He took his first conviction from, I think, ‘87 all the way to the Supreme Court and he worked as a—he worked in the law library at the prison until they got rid of them. 

ABRAMS:  Well...

KIEFER:  So he thinks he knows the law. 

ABRAMS:  Let‘s just hope the next time when he‘s put away for life the they put him in a place where he can‘t do something this again, because I don‘t want to see another spectacle like this in a courtroom.  Michael Kiefer, Ron Kuby, thanks a lot. 

KIEFER:  Thank you. 

ABRAMS:  Coming up, a Marine gives up a life on Wall Street after 9/11 to fight for his country in Iraq.  Now he‘s facing the death penalty for killing two Iraqis.  He says he was just trying to protect himself, but there is a crucial eyewitness who tells a different story, coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a Wall Street trader gives up his high paying career to fight in Iraq with the Marines.  Now he‘s facing the death penalty for killing two Iraqis.  He says it was self-defense.  The military calls it murder.  First the headlines. 

(NEWS BREAK)

(BEGIN VIDEO CLIP)

2ND LT. ILARIO PANTANO, USMC:  There wasn‘t time for warning shots. 

There was time for action and I had to act.

(END VIDEO CLIP)

ABRAMS:  His act could see Marine Lieutenant Ilario Pantano face the death penalty when a military court takes up his case next week.  Now, Lieutenant Pantano is not your typical Marine, although what is a typical Marine?  He came from Hell‘s Kitchen, tough New York neighborhood, but graduated from a Tony (ph) private high school on scholarship before volunteering for the Marines in the first Gulf War.  But after a taste of combat, Pantano traded bang, bang for bling, bling, a lucrative job as a trader for investment bank Goldman Sachs before moving on to become executive vice president of a film company started by his school mates. 

But then came the attacks on September 11.  Pantano rejoined the Marines, became an officer and commanded a platoon in Iraq.  Then last April Lieutenant Pantano shot and killed two Iraqi men.  He says he believed they were about to try to kill him.  Now the Marines have preferred these charges against Pantano—dereliction of duty, destruction of property, premeditated murder, and conduct unbecoming an officer or gentleman.

(BEGIN VIDEO CLIP)

PANTANO:  To speak to murder with premeditation in a context of defending my life is outrageous. 

(END VIDEO CLIP)

ABRAMS:  Steve Fishman wrote a terrific article for “New York” magazine about this.  He interviewed Pantano and the soldiers from his platoon who may testify against him in his story in this week‘s edition entitled “Hell‘s Kitchen”.  He joins us now. 

All right, Steve, your story on the whole, I think, was somewhat sympathetic to Pantano‘s plight.  Is that a fair characterization? 

STEVE FISHMAN, “NEW YORK” MAGAZINE:  I think so, though, you know, I‘ve had reactions from readers on both sides.  Both—some have thought he was guilty.  Some have thought he wasn‘t guilty. 

ABRAMS:  Lay out the facts for us.  What does he say happen? 

FISHMAN:  You know most people agree about what happened.  That means most of the witnesses as far as we now know.  And that is that there were two Iraqis at a house, which turned out to be a house, which had a modest amount of weapons.  Those two Iraqis, when the U.S. Marines approached it, fled in a car.  Warning shots were fired.  The car stops.  The two Iraqis exit.  They‘re searched.  They have no weapons.  Their car is then searched. 

Alarmingly there are no—the seats are not fastened down.  The seats are removable, but importantly the car is searched.  At some point after the car is initially searched, Lieutenant Pantano gets a call on the radio from inside that weapons house detailing what they found.  At that point, he has the two Iraqis return to the car and research it.  He has two soldiers with him.  One is a sergeant; one is in his Navy medic. 

He tells them to post security at one end of the car and at the other end of the car, meaning that they face away from the car.  He then has those two Iraqis; he puts one in the driver‘s side door, one in the passenger‘s door behind the driver‘s door and has them search the car.  At some point something happens.  According to Lieutenant Pantano, what happened is that they execute a simultaneous movement towards him, pivoting.  He interprets it as a threat and he dispatches them. 

ABRAMS:  All right.  Let me just play a piece of sound from what he says happened.  Let‘s listen. 

(BEGIN VIDEO CLIP)

PANTANO:  I didn‘t wait to see if there was a grenade.  I didn‘t wait to see if there was a knife and unfortunately, there are a lot of dead soldiers and Marines who have waited too long.  And my men weren‘t going to be those dead soldiers and Marines and neither was I. 

(END VIDEO CLIP)

ABRAMS:  And yet the key witnesses against him are going to be those other soldiers who were there and you suggest in the article that, you know, at least one of them may have an ax to grind here. 

FISHMAN:  Yes, I wouldn‘t say ax to grind.  I would say he has a stake in the outcome of the case and he has an important stake.  You know he‘s a sergeant who was a well-regarded Marine, was not a well-regarded infantry leader.  In order to advance to the next rank and serve out your career in the Marines, he would need to get a good evaluation for his...

ABRAMS:  And he didn‘t get a good one from Lieutenant Pantano...

FISHMAN:  And he didn‘t get a good one twice from Lieutenant Pantano.  He would like to have that evaluation overturned.  His cause is helped if Lieutenant Pantano‘s judgment is in question. 

ABRAMS:  Do you think that this is going to actually go to trial with Lieutenant Pantano facing these murder charges? 

FISHMAN:  Absolutely. 

ABRAMS:  Wow.  All right.  We‘re going to stay on top of this case. 

Steve Fishman, good article.  Thanks a lot for coming on the program. 

Appreciate it.

FISHMAN:  Sure.

ABRAMS:  Coming up, two years since Elizabeth Smart was found and reunited with her family.  New behind the scenes information about the search for her.  Tom Smart, her uncle, joins us next. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, new details about what went on behind the scenes in the Elizabeth Smart case.  Her uncle now says the Utah teen could have, should have been found a lot earlier. 

(COMMERCIAL BREAK) 

(NEWS BREAK)

(BEGIN VIDEO CLIP)

ELIZABETH SMART, KIDNAPPED FOR NINE MONTHS:  (UNINTELLIGIBLE)

(END VIDEO CLIP)

ABRAMS:  This is such an amazing story.  Elizabeth Smart shortly after her rescue more than two years ago in Salt Lake City.  Remember, she was the teenager snatched from her bedroom in the middle of the night by an intruder who broke into the room she shared with her sister.  Police launched a massive investigation, but it wasn‘t until two people recognized Elizabeth with a couple of vagrants on the street nine months later she was finally returned home. 

The couple each charged with kidnapping, burglary and sexual assault. 

Her uncle, Tom Smart, has now written a book critical of the investigation.  He describes a botched crime scene at the Smart home, explains how police took too long to investigate the man who turned out to be her kidnapper and other missed clues and mistakes along the way.  Tom Smart says if it weren‘t for his family‘s involvement in the case, Elizabeth might never have returned. 

The new book is called “In Plain Sight: The Startling Truth Behind the Elizabeth Smart Investigation”.  Tom Smart joins us now.  Thanks a lot for coming back on the program.  We appreciate it. 

TOM SMART, ELIZABETH SMART‘S UNCLE:  You‘re welcome. 

ABRAMS:  Before we talk about the book, let me just ask you how is Elizabeth doing?  What is she up to?  How is she feeling? 

SMART:  You know by all accounts she‘s doing well. 

ABRAMS:  What is she—she‘s back in school and—give us a sense of...

SMART:  You know to be honest it‘s not that I see her that much.  I mean she—from what Ed says that she‘s, you know, going to school, being a normal, healthy, happy teenager. 

ABRAMS:  Are they upset at you about writing this book?  I mean apparently they were a little upset about the picture on the cover. 

SMART:  Yes.  No, they were upset and they—as far as the picture on the cover, you know, I can—which I can understand but the cover was picked, of course, by the publisher and the author doesn‘t really haven‘t any—contractually I don‘t have any control over that, but this is what the story is about.  It‘s about the kidnapping and while she was gone.  It isn‘t about before or after. 

ABRAMS:  Were they angry at you for writing a book, period or just about how it came out? 

SMART:  No, actually they asked me to wait until they were able to write a book and they have always known I was going to write a book about it. 

ABRAMS:  All right.  So tell me what you think the biggest problems it seems to me based on your book was the fact that the sister who was there, gives the name of someone who turned out to be the actual guy who kidnapped and the police didn‘t really follow up on it. 

SMART:  Yes, this is a story about, you know, when there‘s—I mean obviously there‘s some tunnel vision.  There was a perfect suspect that—seemingly perfect suspect who was a lifetime con and there were many reasons to look at Richard Ricci and say you know he‘s the guy.  I mean it was kind of like the ultimate story of the boy who called wolf. 

He had burglarized her home.  He had lied to them.  He had been in the bedroom of another home.  But on the other hand, the story is about the media and what happens when you only tell part of the story and there may be reasons why he also wasn‘t.  But after they—you know, off the record many times they said that they were sure that they had the right guy and everything.  By the time Mary Katherine has this epiphany—and by the way, I mean it was Mary Katherine and Elizabeth who are the heroes in this thing and the community who did such a great job, and the story about how it happened is what to me is almost the most miraculous thing, but you know, by the time she comes around with this epiphany, it‘s—they are discounting it... 

ABRAMS:  Right.  Just so my viewers understand, they focused on this guy, Richard Ricci, who you pointed out had had incidents at the house, et cetera, before and yet Mary Katherine had said at a later time, right, to be fair, she didn‘t say it right at the outset, it was this guy, Immanuel who worked in the house, did she? 

SMART:  Well there‘s two things that are interesting about that, Dan.  One is she said as soon as she saw that Richard—they were looking at Richard Ricci, she said they don‘t think its Richard, do they?  And she said, you know, I—she said they think its Richard but it‘s not.  And so based—you know, understandably eyewitnesses are—can be somewhat sketchy and you don‘t know, but she always said that there was someone familiar and the police themselves said, you know, sometime there may be a point where she has this epiphany and she actually did but by that time, they had, you know, pretty much put the case to rest, although they were looking for several clues that were still out there and they were working hard on that.  The police... 

ABRAMS:  And you say the police actually were able to interview some people who might have—they might have actually spoken to Elizabeth earlier? 

SMART:  Well actually, I talked to people.  I mean three weeks before she was found, I talked to people who had been with Elizabeth and, you know, I hadn‘t talked directly to Elizabeth but had seen her, and he said hey, they‘re walking around with a veil and I think it‘s her.  And you know, the mania of the first three weeks was almost just as great and the last three weeks and this is very well documented about what went on in this book. 

ABRAMS:  I should say we talked to Salt Lake City police.  They said they can‘t comment on the book because there‘s a gag order, but they did say that no one there has read the book nor do they intend to... 

SMART:  That‘s an open mind. 

ABRAMS:  Yes.  Yes.  I don‘t know why they would say that but anyway...

SMART:  Yes.

ABRAMS:  Tom Smart, thanks for coming on the program.  Appreciate it. 

SMART:  Thank you. 

ABRAMS:  Coming up, majority leader Tom DeLay now facing a House Ethics Committee investigation.  He seems to be trying to deflect the heat by going after our Supreme Court justices now.  He calls one of them outrageous.  I use that word to describe what he‘s doing.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—House majority leader Tom DeLay at it again, trying to deflect attention away from his own ethical and legal troubles by scapegoating our nation‘s federal judges.  Now he‘s moved up the judicial food chain and is onto the U.S. Supreme Court attacking swing Justice Anthony Kennedy.  DeLay said yesterday we‘ve got Justice Kennedy writing decisions based upon international law not the Constitution of the United States.  That‘s just outrageous.  And not only that, he said in session he does his own research on the Internet.  That‘s just incredibly outrageous. 

You want to know what‘s incredibly outrageous.  That DeLay found out today that his colleagues in the House will launch an ethics investigation into his fundraising activities is offering any sort of legal analysis.  The former exterminator hardly has the gravitas to provide useful commentary on any of the justices‘ opinions.  In fact, today after learning that it is entirely appropriate for justices to use the Internet, he tried to clarify his comments, saying that he was only criticizing the use of foreign law. 

Look, it‘s his right to express his opinion.  Let‘s just make sure we understand what he‘s suggesting and why.  DeLay now wants to hold hearings on the clause in the Constitution that says judges can serve as long as they serve with good behavior.  Tom DeLay would like to become the arbiter of good behavior on the court.  That‘s right.  DeLay who is currently part of a criminal investigation in Texas, now the subject of another investigation by his House colleagues and who last year was three times found to have violated House ethics rules wants to—quote—“define what good behavior means for the justices.” 

DeLay is now threatening to—quote—“dismantle and reorganize the courts.”  I‘m certain DeLay has chosen Justice Kennedy, a Reagan appointee and a devout Roman Catholic because Kennedy has disappointed those like DeLay who hoped Kennedy would just tow a party line rather than evaluate cases individually as judges and justices are supposed to do.  As the DeLay investigation heats up, I expect to see an equivalent rise in the heat of his rhetoric because after all, if the entire system is corrupt, then allegations of his corruption just won‘t mean all that much, right? 

Coming up, your e-mail—I‘m going to get a lot on that one I‘m sure. 

Your e-mails coming up.

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say, now it‘s time for “Your Rebuttal”.  On Monday in my “Closing Argument” I praised Congress for passing the long over due bankruptcy bill and criticized some of the Democrats who opposed it.  I said this bill finally holds more people accountable for debt they incurred.  I said it‘s about personal responsibility. 

Bruce Schreiber in Connecticut, “The lack of personal responsibility clearly evident in this country will eventually be our undoing.  Everyone here is a victim.  I can be as compassionate as the next guy, but I work hard to pay my bills and do not expect a free ride.”

Most of you had harsh words for me. 

Kenny Shoulars in North Carolina, “While it‘s true that the number of bankruptcies has increased to record levels, the reason is predatory business practices by credit card companies that overwhelm consumers with far too many offers of easy credit.” 

Look, that may be true, as well.  We should take a look to make sure they are playing by the rules, but it doesn‘t change my opinion about personal responsibility. 

Maureen Fitzgerald from California, “A recent study found that the majority of people who file for bankruptcy do so because of medical bills, not because they want to keep the Lexus.  With this new law, some people of modest income will never be able to get out from under crushing debt.”

That‘s true, Maureen, but why should other people of modest means who are scrounging to pay medical bills and yet did not also rack up debt have to subsidize the others?  This law still allows judges to help people of modest means put their lives back together.  And look, Congress could have made some other changes but on the whole it‘s a good law. 

Jones from Louisiana, “I would gladly pay all of my debts that I have incurred if I could, but I can‘t.  So I will file bankruptcy that‘s been offered to me by the guidelines, but thanks to President Bush who I voted for it‘s going to make it harder for me to do so.”

Dee Pisciella in Virginia addresses the fact that this was a bill pushed forward by Republicans.  “How can conservatives who have driven this country into the largest debt in history be concerned about citizens who come upon hard times and can‘t pay their bills?  Having never been bankrupt myself and managing my own finances within a budget, it seems an oxymoron to have a conservative Congress with a rampant deficit be critical of those who have to file for bankruptcy because their private budgets are in deficit.”  Interesting point. 

Also, an alleged cop killer in a Rhode Island court Monday wearing a mask to protect his badly bruised face—you see him there—police say the result of him jumping out of a third-story window.  His appearance caused an emotional reaction from his own family.  Many of you, too. 

Victoria Ripley in Pennsylvania, “I‘m thoroughly appalled by the over the top courtroom behavior of the Providence man‘s family.  How utterly disrespectable to that poor detective‘s family and colleagues.  Please forgive me for my lack of sympathy for this defendant.”

Andrew Wehr, “I believe this murderer is lucky he could walk into court.  I have zero compassion for that miserable excuse for a human being.”

But Joan Dunlea writes, “While I am no fan of cop killers, I‘m outraged that they can beat this man and no one thinks it‘s wrong.  I dare to go as far, if they beat him, and you know they did, he should walk because of their actions.”  You think he should walk because of their actions?  Come on, Joan. 

And finally Joyce writes about our show airing at 6:00 and 9:00.  “ABRAMS REPORT once a day is sufficient.  More than that gives indigestion.”

But thanks to the vast majority of you who say you like it.  Your e-mails abramsreport—one word -- @msnbc.com.  We go through the e-mails and read them at the end of the show—I know you‘re going to have a lot on...

“OH PLEAs!”—the truth, the whole truth and nothing but the truth

seems to have gotten one audibly bored potential juror into some trouble in

a Los Angeles courtroom.  Juror number 2386 spent two days in jury

selection, and made it quite clear that he was a little bored with a yawn -

·         it was actually so loud that the superior court judge presiding over the attempted murder trial, Honorable Craig Veals, mentioned it on the record, as the loudest yawn he had ever heard and claimed the yawn was contemptuous. 

To make matters worse, the potential juror fulfilled his oath and admitted to the judge the truth.  I‘m sorry, but I‘m really bored.  Apparently the judge couldn‘t handle the truth, fining the drowsy juror 1,000 bucks and finding him in contempt for being disruptive in the courtroom.  And you thought that the less than minimum wage salary for jurors was bad.  Judge Veals ended up cutting the fine down to 100 bucks after the sleepy juror spent about two hours detained in a jury room, perhaps sleeping it off.  Needless to say the juror wasn‘t selected for jury duty. 

That does it for us tonight.  Thanks for watching.  Have a good night. 

See you tomorrow. 

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

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

Discuss:

Discussion comments

,