updated 4/27/2005 8:57:18 AM ET 2005-04-27T12:57:18

Guest:  Susan Filan, Daniel Horowitz, Pat Manning, William Scarborough, “Tiffany"

DAN ABRAMS, HOST:  Coming up, Michael Jackson‘s ex-wife on her way to the courthouse to take the stand. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Prosecutors say Debbie Rowe will back up the testimony of the accuser‘s mother saying that she, too, was strong armed into saying nice things about Michael Jackson on a video.  And will she talk about his sexuality?  We‘ve got her on tape. 

And this former Wall Street trader gave up the cushy life to join the Marines and fight in Iraq.  Today, a military hearing began to determine whether he should face the possibility of the death penalty for killing two Iraqis.  Is the military coming down too hard on Lieutenant Ilario Pantano? 

Plus, should child prostitutes be considered criminals?  Can young girls really consent to sex so that they‘re criminally responsible?  We‘ll debate and ask a now former child prostitute. 

The program about justice starts now.  

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, prosecutors in the Michael Jackson case nearing the end of their case with Jackson‘s ex-wife, the mother of his two kids on the way to Santa Maria where she‘s expected to take the stand tomorrow.  Up to now, Debbie Rowe has been silenced by a confidentiality agreement, but is expected to tell jurors that she was pressured to say good things about her ex-husband on video at the same time that the mother of the accuser in this case says she was effectively imprisoned at Neverland and forced to do the same thing. 

Prosecutors say Jackson himself called Rowe, asked her to be a part of the video to rebut a negative documentary that had aired around the world.  Here‘s some of what Jackson‘s ex had to say on that rebuttal video about the father of her children. 

(BEGIN VIDEO CLIP)

DEBBIE ROWE, MICHAEL JACKSON‘S EX-WIFE:  He would never hurt a child, never.  It‘s not in him.  It‘s—no way.  He would never do anything inappropriate with a child.  It‘s the furthest thing from his mind. 

(END VIDEO CLIP)

ABRAMS:  So how big a deal will this be for the prosecution?  Once again NBC‘s Mike Taibbi is standing by outside the Santa Maria courthouse.  So Mike, Debbie Rowe seems to be defending Jackson in the video.  Is she going to say that she didn‘t believe any of what she said? 

MIKE TAIBBI, NBC NEWS CORRESPONDENT:  You know I don‘t know if she‘s really going to say that, Dan.  As one analyst put it today, she doesn‘t hold the key to Jackson‘s jail cell but she does hold the key to the jurors‘ attention and everybody else‘s.  This is after all the mother of the first two of Jackson‘s children by the means that have been described in the past.

It‘s hard to say exactly what she will describe about the interview that she gave, but here‘s what Bob Sanger, the deputy district attorney—chief deputy district attorney gave yesterday, the reasons why he said that he wanted Debbie Rowe to testify.  He said listen, she did exactly the same thing, as you pointed out in your intro, a highly scripted interview as the family did of the accuser and the rest of his family.  And the suggestion in this case wasn‘t that any harm would come to her, as was suggested in the case of the accuser‘s family, but that she‘d be allowed visitation rights to her children, rights which she gave up when she, as we put it yesterday, made a gift of the two children to Jackson some years ago.  So that was supposedly the...

ABRAMS:  And Mike she‘s now...

(CROSSTALK)

ABRAMS:  ... she‘s now fighting for custody with Michael Jackson, right? 

(CROSSTALK)

ABRAMS:  She‘s not exactly coming in as a friendly witness. 

TAIBBI:  And that will be brought out, but whether it‘s the same thing or not, whether she says it‘s scripted or that there were clear suggestions made to her about what to say, Bob Sanger from the defense pointed out that this was a three-hour interview, the raw tape of the interview, those three hours where it‘s clear that almost everything she says is spontaneous, doesn‘t seem to be scripted in the same way they made that point about the accuser‘s family in their so-called rebuttal video.

He also said we‘re going to have to get into that, that long tape and also phone calls, which Debbie Rowe alleged taped of her and other people in conversation about Michael Jackson, promising, Bob Sanger, said, a very, very long cross-examination.  Now notable today, Dan, and I think this was important, the videographer who shot that interview with Debbie Rowe and shot the interview with the accuser‘s family was on the stand, was not questioned once about the so-called scripted expect of either one of those interviews, because the answer would have been—we know, we‘ve spoken to this individual in the past—that he didn‘t see any script and didn‘t hear any discussion about a so-called scripted performance...

ABRAMS:  Right.

TAIBBI:  ... so I‘m sure that‘s going to be brought out in the cross-examination of this videographer, which will continue tomorrow.

ABRAMS:  Mike, I‘m going to play a piece of sound again.  This is from the video that she says was all scripted...

TAIBBI:  Sure.

ABRAMS:  ... I want you to listen to this piece of sound for a minute.

(BEGIN VIDEO CLIP)

ROWE:  He was welling up and then his son was born, and the look on his face—talk amongst yourselves—I‘d never seen him that happy.  And that‘s what made it wonderful for me, was to see the look on his face. 

(END VIDEO CLIP)

ABRAMS:  So Mike, the claim is going to be that all that, she was told what to say, all points there she‘s bawling and crying there.

TAIBBI:  I don‘t know if she‘s going to comment specifically on that passage.  I mean it sounded like there was genuine emotion there, Dan.  But you have to remember the accuser‘s mother also said that everything right down to the laugh lines and the sides and other what seemed to be impromptu comments that she made were also scripted right down to the very detail, so whether the jury is willing to believe that about Debbie Rowe, any more than they believed it, if in fact she says it on the stand, we don‘t know what she‘ll testify to, is for the jury to decide later on, but you can bet they will be paying attention as will all of the press who are going to be crowding into the courtroom tomorrow.  This is the so-called big finish for the prosecution‘s conspiracy case. 

ABRAMS:  All right, Mike stay with us for a minute.  I want to bring into the conversation...

(CROSSTALK)

ABRAMS:  ... criminal defense attorney Daniel Horowitz and Connecticut state prosecutor Susan Filan.  All right.  So Susan, how big a deal? 

SUSAN FILAN, CONNECTICUT PROSECUTOR:  I think it‘s fascinating.  I think what‘s so interesting about this is that the prosecution‘s theory is consistent.  That he controls what they say and that they do it because they‘re somehow afraid of him.  At the same time, the defense‘s theory is also consistent—everybody is lying for gain.  So with everything paralleled on each side, the same parity, what is the jury going to do with this?  Yes, I think she‘s a hugely important witness, absolutely fascinating.  This is a cliffhanger. 

ABRAMS:  Daniel.

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  I‘ll tell you something, Tom Mesereau, Dan, is so happy he can‘t contain himself.  Because when Debbie Rowe gets on the stand if she says this was scripted, all he has to say is wait a minute, your two children, do you love them?  Yes, I do.  You left them with Michael Jackson, didn‘t you? 

Yes, I did—end of discussion.  Michael is not a pedophile.  The only real interest in this witness, Dan, I think what everyone wants to know, does Michael Jackson really have an attraction to adult women... 

FILAN:  But that‘s not relevant.

HOROWITZ:  ... and maybe we‘ll learn that... 

FILAN:  That‘s not relevant...

HOROWITZ:  ... that‘s about it.

FILAN:  ... and I don‘t really see this child going there and I don‘t see the purpose of her testimony for us to get into that.  That‘s not going to have any bearing on these charges. 

HOROWITZ:  Of course it does.  He has an attraction to an adult woman, this person, and she trusted him with the children...

ABRAMS:  Wait.  Let‘s be clear.  Let‘s be clear.  They didn‘t—you know, it‘s not like they started with this sexual relationship and somehow children ended up resulting here.  I mean the bottom line is she considered these children to be some sort of gift...

FILAN:  Right.

ABRAMS:  ... to Michael Jackson. 

FILAN:  Right. 

HOROWITZ:  Well we‘ll find out, Dan.  Maybe you‘re right and that won‘t help them as much...

ABRAMS:  Let me...

HOROWITZ:  ... but maybe Mesereau can bring out more. 

ABRAMS:  Let me play this piece of sound, all right, because here she is being asked about this question about how the children were conceived.  Let‘s listen.  Number five. 

(BEGIN VIDEO CLIP)

MICHAEL JACKSON, ACCUSED OF MOLESTATION:  The first two, Prince and Paris, from Debbie was (UNINTELLIGIBLE) natural conception...

UNIDENTIFIED MALE:  You had sex with Debbie?

JACKSON:  Yes. 

UNIDENTIFIED MALE:  I know that‘s difficult for you—for me to say because you‘re so embarrassed...

(CROSSTALK)

UNIDENTIFIED MALE:  ... but you actually had sex with her?  You conceived those (UNINTELLIGIBLE).

JACKSON:  Yes, yes. 

(END VIDEO CLIP)

ABRAMS:  Mike is, that from the Bashir documentary or is that from the rebuttal? 

TAIBBI:  That certainly sounds like it‘s from the Bashir...

ABRAMS:  Yes, that sounded to me like Martin Bashir...

(CROSSTALK)

ABRAMS:  ... yes. 

TAIBBI:  Very much, yes.  But you know I think that‘s not really the question and I‘m not sure that the suggestion is correct that Mesereau is licking his chops.  This is going to be a difficult witness.  He cannot be stomping on the mother of Michael Jackson‘s children and the mother of her own children in court.  I think and it‘s been suggested to me by Ron Richards, another one of MSNBC‘s consultants here is that Mesereau is going to be careful.  If not too much is brought out and Judge Melville has said he will restrict the direct examination of Debbie Rowe, if not too much is brought out on direct, Mesereau is not going to do much more than establish that there was not real script. 

And that if you listen to some other parts of this interview, which

did not run, you‘ll see clearly that it was not a scripted performance.  I

think that‘s it, end of story, or at least that‘s a reasonable suggestion

by Ron Richards.

ABRAMS:  How angry, Mike, is she at Michael Jackson right now?  Do we know?

TAIBBI:  I have no way of knowing.  I‘m not your best witness on that.  I know that she has certainly instigated a lawsuit right now to revisit the question of visitation rights and that‘s got to be a woman who is at least upset enough to overturn, or at least to imperil in some way the arrangement that she‘s made with Michael Jackson, which we understand has benefited her fairly significantly over the years. 

ABRAMS:  Daniel, what about this from the D.A.‘s opening statement, all right, because he says that you don‘t just have to rely on Debbie Rowe about this scripting business, all right. 

“If you don‘t believe Debbie Rowe, you don‘t have to because her attorney who was present during the entire time is going to testify that that‘s exactly what they did.  They scripted that interview just like they scripted the accuser‘s interview.”

HOROWITZ:  Well you know, Dan, I don‘t see anything wrong with scripting an interview.  If it‘s true that Michael is not a pedophile and she might know, then what‘s wrong with laying it out in a way that shows well on film?  This is film that she‘s making.

ABRAMS:  Yes.

HOROWITZ:  She‘s not just talking to a person on the street.

ABRAMS:  Why isn‘t that true, Susan?

FILAN:  That‘s not the point at all.  The point is that he‘s scripting the interview to do damage control so that he can control what the popular...

ABRAMS:  So what...

FILAN:  ... opinion is about him. 

ABRAMS:  ... what‘s wrong with that? 

FILAN:  Well what‘s wrong...

TAIBBI:  Susan, Susan, Susan. 

FILAN:  Yes? 

TAIBBI:  Susan, one small point here.  A careful use of language by a very careful attorney, Ron Zonen, yesterday when he was talking about Debbie Rowe did not refer to scripted answers.  He referred to scripted questioning.  And that‘s a really important distinction for those of us who work in this business and for any lawyer who ever prepared an examination you come up with a list of questions. 

I bet you‘ve done it yourself and there‘s nothing wrong with that because you have to know where you‘re going.  And there‘s nothing wrong really with the interviewed subject knowing in many instances what you‘re going to ask. 

FILAN:  But again...

TAIBBI:  It becomes a problem when you then tell them what to say and there‘s no evidence yet that they have been told specifically what to say except that the claims by the accuser‘s mother in her testimony.

FILAN:  I understand what you‘re saying.  Your point is well taken, but I don‘t think that that‘s where the prosecution is going with this.  I think where the prosecution is going with this, rightly or wrongly, good or bad, is that they‘re trying to show a pattern of Michael Jackson controlling the public‘s perception of him and paying people to do it.  Again, the cross...

ABRAMS:  Yes but...

FILAN:  ... is consistent and the cross is always you‘ll lie for gain. 

Now you‘re lying for gain...

ABRAMS:  Yes but...

FILAN:  ... because you want your kids back and you‘re suing him.  Back then you were lying for gain because you wanted an extra however many, $100,000, whatever it was, a year for this...

ABRAMS:  All right...

FILAN:  ... so it—like I‘m saying...

ABRAMS:  But I‘ve got to tell you...

FILAN:  ... there‘s parity on either side. 

ABRAMS:  ... controlling public perception is not going to be enough. 

They are going to have to show more than just that Michael Jackson was...

(CROSSTALK)

FILAN:  They‘re showing a pattern here...

ABRAMS:  I think Michael Jackson would admit...

FILAN:  ... a pattern...

ABRAMS:  I think Michael Jackson would admit that the documentary was a disaster for himself and that they decided to put out this rebuttal documentary.  The question is was the family imprisoned in an effort effectively to make that tape and, you know, was it all scripted, et cetera and I think Mike makes an important distinction between questions—all right, take a quick break here.  Everyone is sticking around. 

Coming up, more on the Jackson case and more on what happened today in court. 

And he gave up a career on Wall Street to fight in Iraq.  Now the military is deciding if this Marine should face the death penalty for killing two Iraqis.  This is war.  Are the Marines being too tough on Ilario Pantano? 

Plus if a teen is too young to legally have sex, can teen prostitutes really be considered criminals?  In some states the answer is absolutely yes.  We‘re going to talk to a former child prostitute who‘s trying to change that.

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)

(BEGIN VIDEO CLIP)

ROWE:  My kids don‘t call me mom because I don‘t want them to.  They‘re not—they‘re Michael‘s children.  It‘s not that they‘re not my children, but I had them because I wanted him to be a father.  I believe that there are people who should be parents, and he‘s one of them. 

(END VIDEO CLIP)

ABRAMS:  Apparently she‘s not so convinced of that anymore, fighting for custody.  Debbie Rowe now expected to tell jurors who will decide her ex-husband‘s fate that she was coerced into doing that interview, that much of it was scripted.  This as the prosecution nears the end of its case.  Rowe could be seen in Santa Maria as early as tomorrow.  And today a few more witnesses took the stand. 

NBC‘s Mike Taibbi was in the courtroom.  Mike, what was the highlight from today? 

TAIBBI:  Well you know, Dan, when the prosecution builds a case it‘s just like building a wall high enough that the defense can‘t get over and establish reasonable doubt—today a couple of more bricks in the wall.  One, the testimony of a so-called travel consultant named Cynthia Montgomery.  The jury took a lot of notes, every member of the jury did when it was explained she was only testifying under a grant of use immunity because she‘s under federal investigation for her alleged role in secretly taping Michael Jackson and his then-lawyer Mark Geragos on a flight back to Santa Barbara on the day he was arrested and then the alleged sale or attempt to sell that tape. 

Jury took notes on that, but she did say, and she produced one sliver of evidence that was incontrovertible, a computer-generated printout of travel to Brazil for the accuser, his brother, his sister and his mother.  She said they got the instructions—she got them from Marc Schaffel, one of the Jackson‘s—one of Jackson‘s alleged un-indicted co-conspirators.  She said that she was told to send them to Brazil, Sao Paulo, one-way tickets, but for visa reasons she testified you must have a return ticket to enter the country and I, meaning she, chose the return date arbitrarily, an important piece of evidence for the prosecution. 

This afternoon it was the direct testimony and the beginning of the cross of Hamid Moslehi, he was Jackson‘s personal videographer for seven years.  A couple of things Moslehi said were important, but most important we think was when he testified that when he was up at Neverland on the afternoon of the day the family was interviewed in their infamous rebuttal interview, he spoke with Joe Marcus, who was the property manager for Neverland, and Marcus allegedly told Moslehi the children are not allowed to leave the property, the exact testimony of Hamid Moslehi. 

So here‘s somebody else, somebody who‘s not particularly helpful to the prosecution, corroborating the story told by the mother and by another security guard that the kids weren‘t allowed to leave the property, that they were in effect being imprisoned there.  Hamid Moslehi didn‘t use that language...

ABRAMS:  Right.

TAIBBI:  ... but that language, that it was Joe Marcus saying they can‘t leave the property is now there for the jury to consider. 

ABRAMS:  All right, let me switch gears for a minute.  There was a poll that was taken today, a Zogby poll, is Michael Jackson guilty? 

Fifty-four percent said yes.  Ten percent said no, 36 percent not sure, and then the split-up by race.  Is Michael Jackson guilty?  Whites, 59 percent yes, five percent no, 36 percent not sure.  African Americans, 37 percent yes, 36 percent no, 27 percent not sure.

Daniel, any of these numbers surprise you? 

HOROWITZ:  All black or all anything, we want a cross section of America to judge any human being.  And of course, there‘s a perception that Michael is being targeted by this prosecutor who actually on the air said I don‘t like his kind of music, which is almost a code to some of us, including me...

ABRAMS:  Oh come on...

HOROWITZ:  ... no Dan, to me...

ABRAMS:  Come on, I heard him say that. 

(CROSSTALK)

ABRAMS:  He wasn‘t talking about race when he said that. 

HOROWITZ:  Well, I felt he was and maybe so.  In that sense, I‘m aligned with certain groups that way.  And I respect your opinion...

ABRAMS:  I don‘t respect yours, though, Daniel. 

HOROWITZ:  Well I do on that point...

ABRAMS:  How do you feel about that?  No, I‘m just kidding.  All right...

HOROWITZ:  I know...

ABRAMS:  Susan, what do you make of this poll that says 54 -- I guess I‘m surprised.  I mean a lot of the people who I talk to say what Mike—and this is actually another statistic, which is will he be convicted—number 13 -- 40 percent say no.  Only 29 percent say yes.  Thirty-one percent say not sure.  It sounds like most people seem to think he‘s guilty, but that he won‘t get convicted.

FILAN:  What I make of that Dan is a hung jury.  I‘ll see you back here next year at this time...

ABRAMS:  Yes.

FILAN:  ... doing this all over again... 

ABRAMS:  Could be a hung jury on some counts and acquittal or conviction on others, though.

FILAN:  I see hung all the way across the board, especially with those numbers.  And is this case ever going to get any better for the prosecution?  Can it get any better for the defense? 

ABRAMS:  Yes.

FILAN:  I don‘t know. 

(CROSSTALK)

ABRAMS:  We shall see. 

(CROSSTALK)

ABRAMS:  We shall see.  Got to wrap it up.  Daniel Horowitz, Susan Filan, and Mike Taibbi, thanks a lot. 

All right...

TAIBBI:  (UNINTELLIGIBLE)

ABRAMS:  ... shifting topics now—the case of a Marine officer who left a glamorous New York job for a second combat tour in Iraq and now possibly a premeditated murder charge is opened at the Marine Corps base in Camp Lejeune.  Second Lieutenant Ilario Pantano told “Dateline NBC” he was defending himself and his men when he fired at least 50 rounds at two Iraqis.  Pantano told “Dateline” insurgents‘ weapons had been found at a nearby house.  That after he ordered the Iraqis to stop their car and search it, they began muttering together in Arabic.

(BEGIN VIDEO CLIP)

2ND LT. ILARIO PANTANO, USMC:  I give them a command in Arabic to stop.  They continue, then there was this moment of quiet.  I felt—I could feel like the oxygen getting sucked out of my lungs.  I could feel that this thing was happening.  There was this beat and they both pivoted to me at the same time, moving towards me at the same time.  And in that moment, of them, you know, of them disobeying my command to stop and pivoting to me at the same time, I shot them. 

(END VIDEO CLIP)

ABRAMS:  The problems for Pantano, the Iraqis had been in handcuffs, which he‘d removed before they were shot, and according to the men guarding the Iraqis, they said they were told to face away and provide security before Pantano pulled the trigger.  They are the key witnesses against him.  If convicted, Pantano could face the death penalty.

NBC‘s Mark Potter is at the Marine Corps base in—at Camp Lejeune and covering today‘s hearing.  So Mark let‘s be clear, this hearing is to determine whether he‘s going to face those charges, correct? 

MARK POTTER, NBC NEWS CORRESPONDENT:  That‘s absolutely right.  It‘s called an Article 32.  It‘s an investigative hearing to determine whether there‘s enough evidence to support the charges and actually take this case to court-martial.  This hearing will likely last the rest of this week and then the investigating officer, the judge, if you will, has another week to make his determination, his recommendation to the commanding general who will then make the final decision on whether this case goes to court-martial. 

And if it does, if he is indeed charged with premeditated murder, among other things, if he is convicted, as you indicated, he could not only face life without parole, but potentially, if they name this a capital case going in, the death penalty.  So this is a very serious life and death matter for this man who served in Iraq now facing that here at Camp Lejeune.

ABRAMS:  Let me play another piece of sound and this is from—the most important witness I think against him is a sergeant who was effectively not demoted by Pantano.  He provided information that led to the investigation and preliminary charges and here‘s what he said. 

“Lieutenant Pantano got mad.  He started butt-stroking the car, breaking windows and lights.  Then walked around the car, slashing all the tires.  He had it in his mind that these were the people that were killing us.  He seemed a little pissed off like he wanted to teach them a lesson.”

We‘re expecting Sergeant Coburn to be testifying in this hearing, right Mark? 

POTTER:  That‘s right and probably tomorrow.  What happened today was that Pantano came in with his lawyers.  He was read his rights to have an attorney, which he has.  He has a civilian attorney, a military attorney and their team.  The charges against him are read.  There are four separate charges including the most serious, the premeditated murder, dereliction of duty, also there damaging the car of the detainees, and conduct unbecoming an officer. 

They argued over at the outset over the qualifications of the investigating officer whether he should sit or in effect recuse himself.  That was—that didn‘t lead to anything today.  And finally two witnesses came on today, preliminary witnesses, but the major witnesses have not been heard from yet and probably will be heard from tomorrow. 

ABRAMS:  Again, here‘s more of what Pantano said to “Dateline” about why he did what he did. 

(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:  Is he expected to testify himself, Mark? 

POTTER:  We don‘t know.  He has that opportunity and I think his attorneys are waiting to see how this goes before he makes that decision.  We‘ll have a chance to ask him that, but we don‘t know that now.  The one thing I want to point out now on the part of the Marine Corps itself in filing these charges and this is the charging sheet—it‘s two pages.  Their main point and why they say they brought this case to this level is that they claim that Pantano shot these two men in the back, that they posed no threat, that they were standing there, they were searching a car. 

He shot them in the back and then left their bodies there as a message to the locals that this could happen to you, too.  He then wrote a sign with the Marine Corps motto on it, placed it above their bodies, and that‘s at the essence of the Marine Corps charges, that was touched upon a little bit today by the two witnesses.  The first witness said that Pantano told him that indeed he had placed this sign near the bodies in the windshield of the car and that he, the first witness, a lieutenant, told Pantano that‘s not very professional, maybe you shouldn‘t do that...

ABRAMS:  Yes.

POTTER:  ... and Pantano indeed did take it away.  The second witness said that he saw the bodies in the car and it appeared to him, a corporal, not an expert in forensics, but it appeared to him that indeed they had been shot in the back.  And, of course, the defense attorney is saying that that to him doesn‘t mean very much because it‘s not a forensic exam. 

ABRAMS:  Yes and one of the—again, the other witness who‘s going to testify—we mentioned Sergeant Coburn—is from the Navy, George “Doc” Gobles.  He said—quote—“I know for a fact that if I were in Lieutenant Pantano‘s shoes under the same circumstances I would not have fired at the Iraqis.  I believe this is an unjustified shooting.”

Very quickly Mark, if both of their backs were turned, how do they know so much about whether these Iraqis were actually turning around to Pantano or not? 

POTTER:  That‘s the rub.  They don‘t.  They‘re ear witnesses, not eyewitnesses to that actual event.  They heard the shooting...

ABRAMS:  Right.

POTTER:  ... a lot of shooting and they turned around and they found the men lying there.  But their basic contention and the contention of the second witness today is that the detainees did not seem threatening.  They were scared.

ABRAMS:  Right.

POTTER:  They were doing everything they were told to do.  So they‘re sort of laying the predicate for more to come tomorrow. 

ABRAMS:  All right.  We shall stay on top of this.  Mark Potter, thanks a lot.  Appreciate it. 

Coming up, should child prostitutes be charged as criminals?  In some states they are.  We ask a now former child prostitute who was charged 10 times.  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, New York State considering legislation that would consider child prostitutes victims, not criminals.  We debate and talk to a rMD+DN_rMD-DN_former child prostitute next, first the headlines. 

(NEWS BREAK)

ABRAMS:  In the eyes of the law in most circumstances a 12-year-old is considered a minor, unable to consent to sex.  That is, of course, unless that 12-year-old is involved in selling sex in New York.  New York law says that minors under the age of 17 can‘t legally consent to sex, but still a number of children, some even as young as 12 are being prosecuted on prostitution charges. 

In one case this summer, New York‘s highest court found that even though a 12-year-old girl who was charged with offering sex to an undercover officer was legally incapable of consenting to any sex act, she could still be found guilty of prostitution because the state‘s law on prostitution does not contain an age requirement.  A proposed bill in the New York State Assembly seeks to protect minors from being charged with prostitution and instead get them counseling.  There is a battle brewing.  Some say teenage prostitutes need to be charged along with everyone else involved in illegal prostitution. 

“My Take”—I don‘t understand how can a young girl who can‘t consent to have sex legally, she can be charged for selling sex.  If a 14-year-old wanted to have sex with an 18-year-old, she can‘t legally do it, so how can we possibly say that young girls often forced into prostitution are criminally responsible for having sex with older men? 

Joining me now is Democratic State Assemblyman William Scarborough, who is behind this bill and also joining us on the other side of the debate, Republican New York State Assemblyman Pat Manning.  Thank you both for joining us.  And in a moment we‘re expecting to be joined by a woman we‘re going to call “Tiffany” who is a former child prostitute. 

All right, Representative Manning, what am I missing here? 

PAT MANNING ®, NY STATE ASSEMBLYMAN:  You‘re not missing anything.  Dan, I think we need to pull it back.  Right now, under the Family Court Act in New York State, we do provide services and programs to child prostitutes.  Those who are on the street, we get them off the street through the Family Court Act and we get them into some services and programs, get them off the street. 

What we‘re looking at here, and it‘s pure and simple.  We‘re trying to make those under 18 not criminally responsible for their act, not to put them into jail, but at least to have a hammer over them so we can get the johns and the pimps.  If we do not have anything to hold over them at this point in time, we will never get to the real exploiters.  So really this being called the safe harbor for exploited youth act should be the safe harbor for pimps and johns.  We need to get those ones that are exploiting...

ABRAMS:  Wait.  I don‘t understand.  Why can‘t you still charge the pimps and johns and simply say that the girls under the age of 17 or whatever it is simply can‘t be charged because they‘re too young to consent to sex. 

MANNING:  In many cases when I‘ve talked to D.A.s and ADAs, they‘ve told me this is the only thing they can use in order to say to a child prostitute, and we‘re talking about those not in the extreme of 12 and 13, but those 16 and 17 that, you know, we need to know who your pimp is.  They are very reluctant to tell them.  So they‘re able to use this and say listen, we can get you off the street, we can protect you, but you have to play ball with us.  You need to tell us who the pimp is so we can save other females in the same circumstance. 

ABRAMS:  I don‘t know.  To me, to say, Representative Scarborough, that you need this—you need to make it illegal so you can hold it over these girls‘ heads doesn‘t seem like a particularly great argument to me to keep it on the books...

WILLIAM SCARBOROUGH (D), NY STATE ASSEMBLYMAN:  Well and nor does it seem to me, Dan.  I think you just made a very good case for this bill.  We are talking, as you said in the beginning, about kids who under other circumstances, if an adult had sex with them, that adult would be charged with rape because these children under the law are not considered to be legally able to make an informed decision to have sex. 

But as you pointed out in your intro, when it comes to prostitution that goes out the window.  And my friend Pat is talking about how these kids can already get protections.  The fact of the matter is that oftentimes if this young girl and a pimp are arrested, the pimp is out of the door before she is.  And you know the D.A. can perhaps say to them that we will give you protections, but many times the only home that this child has is whatever this pimp is providing for her.  This bill would mandate that there be emergency shelter in case this child needs to be brought—to prosecute the pimp because if she‘s prosecuting her landlord, she has no place to go. 

ABRAMS:  Representative Scarborough, what are the chances this is going to pass? 

SCARBOROUGH:  I think there‘s a very good chance.  The Senate sponsor is Senator Dale Volker, who was the original sponsor of the death penalty bill that was brought back to New York State.  So we‘re not talking about something that is simply a Democratic point of view.  Our view is that the priorities are wrong. 

ABRAMS:  Yes.

SCARBOROUGH:  These are children who have been exploited.  They come out of homes looking for somebody to help them.  They end up in this situation.  They end up locked up.  They‘re exploited twice.  Our focus is also to have companion legislation that strengthens the penalties on the pimps and the adults that put these children into this situation in the first place. 

ABRAMS:  All right, let me take...

SCARBOROUGH:  We‘re simply trying to put the priorities where they should be. 

ABRAMS:  Let me take a quick break here.  I mean this is all the result—this is not just theoretical, ladies and gentlemen.  This is the result of New York‘s highest court, ruling this summer that a 12-year-old girl, you know, she can‘t get out of it just because—she can‘t get out of a charge because she‘s under the age of consent.  All right.  We are going to take a break. 

When we come back, we are hoping that we‘re going to be joined by “Tiffany”, a woman who used to be a child prostitute, who testified in front of the New York State Assembly about this very issue.  She‘ll be with us in a moment.

And 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, child prostitutes are too young to legally have sex, but in some states they are still charged as criminals.  We‘ll be joined by a former child prostitute in a moment.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  We‘re talking about whether teenage prostitutes should be charged criminally.  Remember, for example, in New York State, they are under the age of consent in many cases and yet New York‘s highest court this summer ruled that that doesn‘t matter, that they can still be charged.  Now there‘s legislation being considered in New York as to whether they should be protecting these children, instead of prosecuting them. 

And I said a minute ago that I support that legislation.  I think it‘s a good idea.  Joining me now is “Tiffany” who testified in connection with this law; a former teenage prostitute was prosecuted at least 10 times between the ages of 12 and 15.  She testified before the New York State Assembly earlier this month in support of the bill.  We are disguising her identity at her request. 

Thanks very much for coming on.  All right.  Tell me a little bit about how you started as a prostitute and what it is that you said to the committee.

“TIFFANY”, FORMER TEENAGE PROSTITUTE:  Well, I started out actually when I ran away from a group home in which it was broken, like my family, no family support, no moral support from anybody, so—which I ended up downtown and came across a young man who offered me some what seemed at the time good advice and a good stable situation from the one which I came from, and I took him up on his offer and it turned out not to be what I expected it to be. 

ABRAMS:  And you were then what found on the streets or found in the -

·         doing this and then charged 10 times? 

“TIFFANY”:  No, over the course of the time I was sexually exploiting myself and being sexually exploited and over the course of two years, give or take, I‘ve been arrested over 10 different times.

ABRAMS:  Wow.  And at what point did you—were you able to look back on this and say I was just a child back then? 

“TIFFANY”:  When I actually ended up going to a program, which I was mandated to and it was like I learned more information about the subject, about the issue (UNINTELLIGIBLE) and to let me know, like, being under the age of 18, I am not old enough to give consensual sex, so therefore I became aware of the subject and I can look back on it and say that I‘m the victim and not the person who committed the crime. 

ABRAMS:  What‘s the most important thing for you that you were able to tell the committee evaluating this law? 

“TIFFANY”:  That the girls (UNINTELLIGIBLE) are different because you all may see the girl who‘s committing the crime, but you have to also look at she‘s also the victim.  There‘s people (UNINTELLIGIBLE) the pimps or the johns who are promoting this and encouraging this, I think those are the people who should be arrested and not the girls because the criminalization of the girls is not helping them whatsoever. 

ABRAMS:  And so let‘s be clear.  When you started doing this at age 12, you were being exploited.  I mean this wasn‘t the idea this was something that you wanted to do, that you were enjoying? 

“TIFFANY”:  Actually, it wasn‘t something I was enjoying because at the age of 12, I had to start drinking and take multiple drugs just to be out there, so (UNINTELLIGIBLE) it wasn‘t something I was enjoying.  It was something that I had to do.  Many of us don‘t get choices. 

ABRAMS:  Representative Manning, I mean I have to tell you that is a very sympathetic position that “Tiffany” takes. 

MANNING:  Absolutely.  And what we‘ve found out were two things.  One, that there are programs and services out there that “Tiffany” was able to access in order to get her off the street and clean up her act...

ABRAMS:  But you‘re still willing to charge her...

(CROSSTALK)

MANNING:  No, but Dan, if I may...

ABRAMS:  ... you‘re still willing to charge her...

(CROSSTALK)

MANNING:  Dan, if I may, at that age, she would be charged as a juvenile delinquent.  What this bill does, by a good intentioned person like Bill, my good friend, what this would do is take juvenile delinquency off the table.  The idea that a 17 ½-year-old is somehow a victim but an 18-year-old is an adult knowing exactly what she‘s doing is really going to start a...

ABRAMS:  But that happens in the law...

(CROSSTALK)

ABRAMS:  ... every day in the law...

SCARBOROUGH:  Dan...

ABRAMS:  ... we make distinctions...

(CROSSTALK)

(CROSSTALK)

ABRAMS:  ... determine the age, right? 

UNIDENTIFIED MALE:  Dan...

MANNING:  And absolutely we do.  And that‘s why under 16, we charge them as a juvenile delinquent and we get them programs and services.  What this bill does...

SCARBOROUGH:  Dan...

MANNING:  ... is say we‘re going to give them long-term housing and career counseling. 

SCARBOROUGH:  Dan...

MANNING:  That is going to break the bank of New York. 

ABRAMS:  Go ahead.

SCARBOROUGH:  Can I say something? 

ABRAMS:  Yes, go ahead.  Sure.

SCARBOROUGH:  There is one program in the state of New York that provides counseling and long-term care, one in the whole state for these youngsters.  What we are saying in this bill is that they have been victimized.  They should not be victimized again.  We‘re saying that as a practical matter, if you expect them to testify against a pimp, you have to provide them with temporary housing so that they‘re not dependent upon that person that they‘re testifying against. 

They need counseling because of what they‘ve gone through.  If they can‘t go back to their homes, they need long-term housing, if they can‘t go back to their residents.  And they need to be put in a situation where they can get education and vocational counseling. 

(CROSSTALK)

SCARBOROUGH:  Those things are not done.  This is what this bill does. 

ABRAMS:  But more importantly on its most basic level, the idea of charging a—even as a juvenile, charging a child for something that they can‘t consent to seems to me to not make sense. 

Tiffany, very quickly, how are you doing now?  What are you up to? 

“TIFFANY”:  I‘m fine.  I‘m currently working, in school, just trying to live every day-to-day basis (UNINTELLIGIBLE) you know to overcome and raise awareness about the issue. 

ABRAMS:  All right, “Tiffany”, thanks very much for taking the time to come on.  Assemblymen William Scarborough and Pat Manning, thank you as well.  Appreciate it.

(CROSSTALK)

“TIFFANY”:  Thanks for having me.

ABRAMS:  Coming up, the Supreme Court ruled today if you‘re convicted of a crime abroad, you can‘t buy a gun at home.  Some justices like Antonin Scalia had been saying don‘t cite foreign law.  What happened?

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—who would have thought that U.S. Supreme Court Justice Antonin Scalia would argue that foreign court rulings should impact the interpretation of U.S. laws?  In an interview just last week, he was on a crusade against even mentioning foreign court rulings and Supreme Court opinions.  Scalia last week—Foreign law is totally irrelevant and doesn‘t show what the Constitution originally meant and it doesn‘t show what is fundamentally important to Americans today.

Scalia this week—It is eminently practicable to put foreign convictions to the same use as domestic ones.  Foreign convictions indicate dangerousness just as reliably as domestic convictions.  Has Justice Scalia had a sudden change of heart?  In an opinion released today he joined in dissent with Justice Clarence Thomas and Anthony Kennedy that would have found that if someone has been convicted of a crime in a foreign court that should prevent him or her from buying a gun in the United States.  What happened to those irrelevant foreign rulings? 

Justice Scalia suddenly thinks their law is just as reliable as domestic law?  If international law is irrelevant, as Scalia said last week, then why should we recognize criminal convictions that come out of irrelevant courts in other countries?  What is illegal in one country might very well be legal here and there are certainly governments out there who hand down criminal convictions without due process and civil liberties we have here in the U.S.  Look, I‘ve said before I think it is silly to complain about merely citing foreign law, but this really highlights the problem.  Now to be fair, the question the court was looking at was how to interpret a statute that says a person convicted of a crime in any court can‘t possess a firearm. 

Scalia and the dissenters said any court means all courts, including international ones.  The majority said no, it should only apply to U.S.  courts.  If you think about the majority opinion it‘s kind of surprising as well, written by Stephen Breyer, joined by the more liberal justices.  They protected this guy‘s right to buy a gun in the U.S.; not exactly one would expect the more liberal wing of the court to do.  Sure, you can argue the conservatives on the court are strictly interpreting the statute.  Any means any.  And their position is arguably tougher on crime.  But it sure is funny to hear the liberals on the court defending the guy‘s right to own a gun while the conservatives cite foreign court rulings to say just the opposite. 

Coming up your e-mails.  Who‘s been tracked more, Martha Stewart or sex offenders—a lot of you writing in about that.

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night I spoke to the Florida attorney general about the 5-year-old girl in St. Pete, handcuffed by police. 

Rebecca in Alabama, “Using handcuffs on a 5-year-old sounds awful, but I watched the video and have to ask what is the school supposed to do?  Our society is demanding that our schools do a better job of teaching, but what do you do when hours of a teacher‘s time is taken up dealing with a child who is totally out of control?” 

Lawrence in Cape Girardeau, Missouri, “The only violence in the tape from the Florida classroom is on the part of the 5-year-old.  We have another example of school officials and the police being damned by the media for taking action.  Is it any wonder then that there is as much violence in our schools as there is?”

Roosevelt Jackson in Santa Clarita, California asks, “Did they assume she was going to overpower all three of them?”

Also last night Martha Stewart attending a “TIME” magazine event last week, raising some questions about the terms of her probation.  She was wearing slacks, concealing her electronic ankle bracelet. 

Jamie Burns in Clearwater, Florida, “Isn‘t it ironic how closely Martha is being tracked while all those sexual predators are wondering around committing more crimes?”

From Woodbridge, Virginia, Crystal Spalding, “I‘m sure teachers and parents across the country will rest easy tonight knowing that Martha Stewart is being monitored, but a sex offender could be lurking in their neighborhood.  Thank goodness law enforcement has its priorities straight.”

But Gregory Frenger in Holt, Michigan, “As a probation officer with more than 18 years of experience I‘ve never heard of a judge allowing any offender to be released from house arrest to attend a gala for the upper class citizens of this country.  It puts a stain on my profession to see that a felony offender of a certain income has the ability to continue to climb their social calendar full by attending a party with Hollywood types.”

Finally, Alex Abigantus, “I noticed you no longer have a desk.  I like it.  It‘s nice and casual.  All you need now is a sweater, a trolley, and Pat Buchanan to dress up like a mailman and you‘ll be good to go.”

I actually thought about dressing up in a sweater, asking Pat, but I couldn‘t do it, couldn‘t ask him.  Pat, I wouldn‘t do it to you.  Anyway Mr. Rogers reference... 

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

That does it for us tonight.  Thanks for watching.  See you tomorrow.

END

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