updated 5/16/2005 8:23:52 AM ET 2005-05-16T12:23:52

Guest: Dave Keneller, Daniel Horowitz, Susan Filan, Charles Gittins

DAN ABRAMS, HOST:  Coming up, mystery solved in the great Wendy‘s finger caper.  Police track down the man whose finger was found in a bowl of Wendy‘s chili.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  This woman claims she found it in her chili.  Now she is under arrest and police say it really belongs to a friend of her husband‘s.  Yikes!  We talk to the lead detective in the case.

And he was once both Michael Jackson and Scott Peterson‘s lawyer.  Today Mark Geragos takes the stand for the defense in Jackson‘s trial.  And why do prosecutors want to ask about Jackson‘s sister Latoya?  We‘ve got the tape everyone‘s talking about.

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, the Wendy‘s finger mystery solved.  For the past six weeks the question anyone who cared was asking whose fingertips did that woman put or find in that bowl of chili at a San Jose‘s Wendy‘s?  Well wonder no more.

(BEGIN VIDEO CLIP)

CHIEF ROBERT DAVIS, SAN JOSE POLICE DEPARTMENT:  The jig is up.  The puzzle pieces are beginning to fall into place and the truth is beginning to be exposed.  This is not a case necessarily to be smiling about.  There are victims in this case that have suffered greatly.  On Wednesday, May the 4th, San Jose Police Department detectives received a lead from the Wendy‘s reward hotline concerning a Nevada resident who may have been the person whose fingertip was allegedly found in a bowl of chili in San Jose on March 22.

It was determined that he‘d lost a portion of his finger in an industrial accident in December of last year and that he is an associate of James Plascencia, the husband of Anna Ayala, the woman being the person who claimed to have found the fingertip in the bowl of chili.  Scientific testing positively confirmed that this subject was, in fact, the source of the fingertip allegedly found in the chili.  San Jose P.D. detectives returned to Nevada on May 12 and determined that this individual did provide the fingertip to James Plascencia.

(END VIDEO CLIP)

ABRAMS:  The jig is up.  Joining me now is Captain Dave Keneller with the San Jose Police Department.  He oversaw the Wendy‘s investigation.  First, thank you very much for coming on the program.  Congratulations on cracking this case.

CAPT. DAVE KENELLER, SAN JOSE POLICE DEPARTMENT:  Thank you.

ABRAMS:  So this guy who‘s missing a part of his finger, all right, so he apparently knew where the fingertip was, is that correct?

KENELLER:  Right now we are doing active interviewing of that individual, so I really can‘t comment on you know what he‘s told us at this point.

ABRAMS:  But he is cooperating with the investigation, right?

KENELLER:  Yes, he is.

ABRAMS:  And you‘re certain that, you know, that this finger came from this particular person?

KENELLER:  I believe we have irrefutable scientific evidence to that effect.

ABRAMS:  Well I mean look, if this guy was a friend of the husband, right, and of the woman who found it, it seems pretty clear now that Wendy‘s was right when they say that this was all a hoax on her part.

KENELLER:  I think that‘s an accurate characterization of this incident, yes.

ABRAMS:  Where do we stand now in terms of her prosecution?

KENELLER:  Well right now she‘s been charged with attempted grand theft for the Wendy‘s case and grand theft with a real estate deal gone bad.  Right—and the D.A. will be looking at conspiracy charges and other charges as well as all the reports come in from our investigation.

ABRAMS:  Is it possible that the guy whose finger it was could get charged as well?

KENELLER:  That‘s a possibility and it‘s something that we‘re considering right now, along with the District Attorney‘s Office.

ABRAMS:  The guy‘s missing a piece of his finger and now he‘s going to get charged for someone dumping it in a chili‘s thing as well.  How did you get tipped off to this guy?

KENELLER:  Well when we started out with this case Wendy‘s was generous enough to start up a hotline with $100,000 reward and that was one of the many tips that came in through the hotline.

ABRAMS:  And have you been able to follow up every one of these tips, so to speak...

KENELLER:  We followed up on all the good quality leads that came in off the hotline, yes.

ABRAMS:  All right, Captain, thanks a lot for coming on the program. 

Appreciate it.

KENELLER:  Sure, no problem.  Thank you.

ABRAMS:  With me now MSNBC legal analyst and former prosecutor Susan Filan and criminal defense attorney Daniel Horowitz.

All right, so Daniel, you‘re a California lawyer.  This is occurring in California.  What kind of—is this guy in Nevada, it sounds to me like he‘s going to face some --  he‘s missing a piece of his finger and it sounds to me like he‘s now also going to be facing criminal charges.

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  Yes Dan, it seems like he can face criminal charges for giving somebody the finger and...

ABRAMS:  So to speak.

HOROWITZ:  So to speak.

ABRAMS:  Yes.  Now what would be the crime there?  I mean the crime would be what conspiracy to engage in fraudulent conduct or...

HOROWITZ:  Yes.  I mean technically conspiracy is a formal agreement I will do it or aiding and abetting is just conduct where you know that you‘re helping the crime go forward.  It really doesn‘t mater.  If you help somebody commit a crime, you know it‘s happening.  You are responsible.  You know I‘ve had some calculations done for me from an outfit that makes software that does crime calculations.  It looks like these people could face between maybe three or four years on these basic crimes.  But if they are found to have attempted to have stolen over $2.5 million, they could face as much as eight years plus further enhancements for their prior criminal history.

ABRAMS:  Wow.

HOROWITZ:  Yes.

ABRAMS:  So this is—you know I mean look, it‘s hard not to smile when you‘re covering this story, particularly because it‘s not a case where there was—I mean now in particular since they found the guy.  And if he was a part of this, then you know the only victim—true victim here it seems is Wendy‘s and you know sort of a corporate kind of fraud.

Susan Filan, bottom line, it seems to me that by naming this guy and saying he‘s a friend of the husband of the woman who found it, it sounds to me like this guy is in trouble.

SUSAN FILAN, FORMER CONNECTICUT STATE PROSECUTOR:  Sounds like it.  I mean how would she have had access to his digit otherwise?  I mean there had to be some kind of a consensual transaction or at least that‘s the inference that I draw because I doubt he left it lying around...

ABRAMS:  I guess...

FILAN:  ... it into her pocket.

ABRAMS:  Yes, but I guess it‘s possible, right, that the guy, you know, that the husband says, hey, you know whatever happened—it‘s so—whatever happened to that piece of your finger?  I want to do a...

FILAN:  It‘s just pretty creative.

ABRAMS:  I don‘t know.  I don‘t know.  I can‘t think.  Joe, can you think of anything?  I can‘t think of another reason.  I don‘t know.

All right.  Let‘s move on.  Enough of this topic.  I‘m sorry.  I want to spend—let‘s spend more time on Jackson.  We were going to take more time on this but I don‘t know what else to say.  The guy is probably going to be in trouble.  The woman‘s in trouble.  Her husband‘s in trouble.  This guy‘s missing a finger and you know, she‘s...

FILAN:  And that‘s the way it should be.  Wendy‘s is out an awful lot of money...

ABRAMS:  They are.

FILAN:  People have lost their jobs.  People in the community that love to eat there won‘t go there anymore.  I mean this is not really a hoax or a joke.  It‘s kind of a serious crime...

ABRAMS:  It is...

FILAN:  ... with actual victims.  There‘s much more than just financial loss here.

ABRAMS:  All right.  Susan Filan and Daniel Horowitz are going to stay with us.  Coming up, we last saw attorney Mark Geragos at Scott Peterson‘s trial.  Today he showed up to take the stand, take the stand to defend his former client.  How does that work?  Michael Jackson.

And shocker, he gets asked a question about me.  That‘s not me.  That‘s Jackson‘s sister Latoya.  She hasn‘t been to court lately, so why do prosecutors want to introduce evidence about what she said on TV years ago?  We‘ve got the tape everyone is talking about.

Plus, he gave up a career on Wall Street to fight in Iraq, now he‘s facing murder charges for killing two Iraqis.  But that could be—there‘s a big development in the case.  We‘ve got the latest.  The case against Ilario Pantano coming up.

(COMMERCIAL BREAK)

(NEWS BREAK)

(BEGIN VIDEO CLIP) MARK GERAGOS, MICHAEL JACKSON‘S FORMER ATTORNEY: 

Anybody who knows anything about the history of the investigators and the axes they have to grind knows that these charges are not only categorically untrue but they are driven, driven by two things—money and revenge.

(END VIDEO CLIP)

ABRAMS:  That was Michael Jackson‘s attorney then.  Now Mark Geragos isn‘t even representing Jackson, so what‘s Jackson‘s former attorney doing testifying for Jackson today?  Apparently he was there to explain his role.  He says it was to protect Jackson from people who might want to make accusations or extort money from him and to deal with the negative fallout from the documentary, where Jackson admitted sharing his bed with boys.

But remember, we are talking about a lawyer questioning a lawyer.  And then on cross-examination, a lawyer cross-examining a lawyer.  Things got so heated on the witness stand on cross-examination, the judge had to call a time-out.

NBC‘s Mike Taibbi is in Santa Maria.  So Mike, a day to remember as far as criminal trials go, you know I‘ve heard—we heard the words misrepresentation and contempt were used at the end of the day.  Let‘s start with the basics.  What was Jackson‘s former lawyer doing on the witness stand?

MIKE TAIBBI, NBC NEWS CORRESPONDENT:  Yes, before we get into all the theatrics of the day, Dan, what he was doing was a really important thing for the defense.  He was recasting the entire conspiracy charge in this case, which is pretty wobbly at this point, as has been reported on this show many times, into something different, as an investigation triggered literally within a day or two of Mark Geragos getting on this case, an investigation of the accuser and his family.  Geragos testified that within a couple of days a simple LexisNexis search told him about the J.C.  Penney‘s case, about which we have reported extensively on this show, and that this family in the past had filed lawsuits, charged unlawful imprisonment, false imprisonment, that the mother had added on a charge of sexual assault, et cetera.

And he said in answer to the very short direct examination by Tom Mesereau, absolutely not.  There was no conspiracy to abduct, to falsely imprison, to extort any kind of a statement.  What were you doing, Mesereau asked?  I was trying to keep my client from having a crime committed against him.  I think this family was trying to shake him down.

That‘s exactly the point.  And what that that does is changes the whole view of all of that stuff that seemed very creepy in the prosecution case, the video surveillance, Bradley Miller being there during the interview, et cetera.  All of that stuff all of a sudden seems different as part of an investigation by Jackson‘s attorney to protect him from a family he saw as predators.

ABRAMS:  All right, before we get to that, there were some real theatrics.  I mean by the end of the day...

TAIBBI:  Sure.

ABRAMS:  ... the judge is talking about possibly holding Geragos in contempt.  You‘ve got the prosecutors and the judge saying that he misrepresented.  What‘s going on?

TAIBBI:  Well that was pretty good stuff.  I mean the jury and everybody in the courtroom was treated to high courtroom drama as this sort of thing goes.  You talked about the lawyers on all sides, don‘t forget the judge is also a lawyer, the witness in the box, a pretty fair country lawyer himself.  And they are going at it, testifying as much in their questions that they know are going to be stricken and the answers they know are going to be stricken, letting the jury know and using buzz words again and again.

What triggered this outburst by the judge saying, listen, time-out.  We‘ve got to take a time-out.  And then Zonen, Ron Zonen, the prosecutor, tried to start right away, the judge said no, no, hold on a second.  He said I ride horses.  You wait for the head to relax.

What triggered that was Zonen‘s repetition of the phrase, sleeping with boys.  And finally, on the stand, Geragos said, listen, you keep saying sleeping with boys, that boys stay in his room.  What exactly are you implying?  Are you implying something sexual?  Of course Zonen was.  That‘s the whole subtext of that line of questioning.

ABRAMS:  Yes.

TAIBBI:  At that point things were pretty hot, happening rapid fire. 

The judge said time-out...

ABRAMS:  Yes.

TAIBBI:  ... and it resumed.  Everybody laughed afterward and they moved on.

ABRAMS:  Yes, let me read one piece of—number one here.

Mark Geragos said when I was there, what I saw was a gentlemen, who was almost childlike in his love for kids.  I didn‘t see anyone doing anything nefarious or criminal.  I saw someone who was ripe as a target.

And then he goes on.  What he has consistently said is that he didn‘t do anything that was untoward.  That if someone had spent time in his room, it was an act of unconditional love.  Mike, stick around because back with me MSNBC legal analyst and former prosecutor Susan Filan and criminal defense attorney Daniel Horowitz joins me.  All right, Susan, you were in court there as well.  This—the defense is basically saying Mark Geragos is going to come in here, he‘s going to testify, but they said he‘s only giving what‘s called a limited waiver because of this whole attorney-client privilege issue.

And Geragos saying well I‘ll talk about everything up until the time of Michael Jackson‘s arrest.  And I didn‘t know that you can decide what you‘re going to waive and what you‘re not going to waive.

FILAN:  Well here‘s how the day started.  Geragos gets on the stand and he started to be asked questions by Mesereau and he turns to the judge like a perfect lawyer and says, just to be perfectly clear, I know that there‘s a waiver because I have been told but I haven‘t heard it on the record and it hasn‘t been said in open court.  Just looked like a technicality, it looked like a formality and so Mesereau stands up and says, yes, there‘s a waiver.

The judge turns to Geragos, does that satisfy you?  He said I‘d like to see it in writing.  He turns to Mesereau and says Counsel, will you provide that by the end of the day?  Yes, I will Your Honor, turns back to Geragos, does that satisfy you?  Yes, Your Honor and off they go.

ABRAMS:  All right.

FILAN:  At the end of the day, he starts to be asked questions—

Mesereau stands up and says, actually, Your Honor it‘s a limited waiver and the judge drew ire and said that is a misrepresentation Counsel and what do we do now in the middle of testimony?  And the remedy could easily be that Geragos‘ entire testimony get stricken and it was very favorable for the defense.  I think Mesereau is thinking right now about putting his malpractice carrier on notice.

ABRAMS:  Daniel Horowitz, what do you—I mean you can‘t say, it‘s not up to Mark Geragos to say, well I‘m only going to waive—can you do that?  I mean you can‘t waive just part of the issue with attorney-client privilege, can you?

HOROWITZ:  Well actually Dan, technically you can because Michael Jackson has a due process right, a federal constitutional...

ABRAMS:  Right.

HOROWITZ:  ... right to a fair trial.  And that‘s more important than an attorney-client privilege.  You can massage that privilege to make sure that Michael is treated fairly...

ABRAMS:  But isn‘t it true that generally there is no partial waiver of the attorney-client privilege, right?

HOROWITZ:  Well...

ABRAMS:  It‘s generally all or nothing.

HOROWITZ:  Theoretically, but when you come up...

FILAN:  That‘s right.

HOROWITZ:  ... against a constitutional right, constitutional rights always trump...

FILAN:  No, no, no, no...

HOROWITZ:  Wait, wait.  I‘m right here, Susan.  Privilege is something that...

(CROSSTALK)

HOROWITZ:  Wait a minute.  Privilege is different from a constitutional right.  A constitutional right may involve privileges...

ABRAMS:  All right, I don‘t want to get too...

(CROSSTALK)

ABRAMS:  ... I don‘t want to get too technical.

HOROWITZ:  OK.

ABRAMS:  The bottom line is Daniel is saying that you can do it.  You know Susan, you...

FILAN:  Dan, can I just say this?

ABRAMS:  Quickly...

FILAN:  The judge‘s quote to Mesereau was you can‘t give with one hand and take with the other, Counsel.  I‘m not going to let you...

HOROWITZ:  Well I‘m right and the judge is wrong.  Judge Melville, watch the show tonight.

ABRAMS:  All right.  And so he‘s testifying—where do we stand now, Mike, in terms of his testimony?

TAIBBI:  Well what the judge has asked for is points and authority from all parties including Geragos.  He invited him to submit them as well, basically trying to find out whether there‘s been a comparable situation in the middle of the testimony, as Susan pointed out, the witness, who happens also to be a lawyer, learns that the waiver is limited.  And there are a couple of solutions.

One is to strike all the testimony, as has been pointed out.  The other, of course, is for Mesereau to sit down with his client and to say, as he said to the judge, listen this wasn‘t intentional.  I thought we were just talking about the relevant period in this thing.  Sign a waiver for the whole thing.  You‘re the client.  It‘s your privilege to give and let‘s just be done with it.  And I think that‘s a solution to it, too.  I wouldn‘t jump to any conclusions one way or the other.  I think this will be resolved on Monday and...

ABRAMS:  But bottom line, Mike...

TAIBBI:  (UNINTELLIGIBLE)

ABRAMS:  ... his testimony has been very helpful to the defense, has it not?

(CROSSTALK)

ABRAMS:  Because we keep hearing Geragos‘ name throughout...

(CROSSTALK)

ABRAMS:  ... and the suggestion has been that he was kind of...

TAIBBI:  Sure.

ABRAMS:  ... behind some of this and so Geragos is really getting out there and serving as good a witness as you can have for the defense.

TAIBBI:  Yes, there was even talk that at one point he was being considered as a potential unindicted alleged co-conspirator.

ABRAMS:  Yes.

TAIBBI:  You heard that a while ago.  That didn‘t happen.  But he is a key figure, was there right at the beginning of the alleged conspiracy from the prosecution‘s point of view.  But he made every point that the defense would like him to have made, that the accuser‘s mother was after money when she did the video et cetera.

That they felt that she was suspicious all along.  That she even seemed to be wanting to talk to Ed Bradley when a “60 Minutes” crew was at Neverland, that sort of thing.  And I think pretty importantly that when she went to do her DCFS interview, after the infamous rebuttal interview she did, she assisted, according to Geragos, that his private investigator Bradley Miller go with her, accompany her to that interview.  Now Bradley Miller was also going to testify, he presumably...

ABRAMS:  Yes.

TAIBBI:  ... will support that contention by Geragos.  So yes, the defense case had a lot of big points made on its behalf...

ABRAMS:  That‘s one of the big questions—you know what was the

point of this surveillance?  What was this investigator doing watching the

·         remember I got the exclusive interview with Bradley Miller.  Here‘s what he said about it.

TAIBBI:  Sure.

(BEGIN VIDEO CLIP)

BRADLEY MILLER, FORMER JACKSON DEFENSE INVESTIGATOR:  Contrary to what people may believe, there was no round-the-clock surveillance for days on end.  This was a hit-and-miss kind of thing, just to get an idea of where they were, who they were meeting with, what was going on.  There was no one holding them against their will, making them do or say anything.  She is living with a man that I believe is or was a major in the United States Army.  He‘s bigger than I am, stronger than I am, or any of my operatives.  I don‘t see how anyone was held against their will, particularly at his apartment.

(END VIDEO CLIP)

ABRAMS:  Susan, I understand that once again the program about justice was being mentioned in the courtroom.  What happened?

FILAN:  Well that was actually the straw that broke the judge‘s back.  The very last question that was asked today was by District Attorney Zonen and he said to Mark Geragos, he said now how did this DCFS tape get into the hands of MSNBC and Dan Abrams?  And the judge said, that‘s it, we‘re done for today, because Geragos‘ response was privilege, I‘m not going to answer that.

ABRAMS:  Really?

FILAN:  You‘re in this trial, Dan.

ABRAMS:  Really?  Wow...

FILAN:  You‘re going to get subpoenaed.

ABRAMS:  You know, the DCFS—you know what we are talking about.  Just so everyone knows what we‘re talking about, we‘re talking about this tape of the family being questioned by the Department of Child and Family Services in California.  All right.  Everyone‘s going to stick around because coming up, this to me actually may be the most interesting point in the day, even more interesting to me than Geragos.

Prosecutors say they want to ask witnesses about what Jackson‘s sister, Latoya, said.  We‘ve got the tape of Latoya that everyone‘s so interested in.  Let‘s just say it‘s not exactly helpful to Jackson‘s defense.

And new details about the case against the Marine who gave up a high-paid career on Wall Street and in the TV industry to fight in Iraq, charged with murder for killing two Iraqis.  There could be a big, big development in the case today.  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up—what does Michael Jackson‘s sister Latoya say about her brother‘s relationship with young boys?  It is not particularly helpful to the defense, at least what she said on tape.  First the headlines.

(NEWS BREAK)

(BEGIN VIDEO CLIP)

LATOYA JACKSON, MICHAEL JACKSON‘S SISTER:  What 35-year-old man is going to take a little boy and stay with him for 30 days and take another boy and stay with him for five days in a room, and never leave the room?  How many of you out there are 35 years old? How many men are out there? 

How many would take little kids and do that, that are 9, 10, 11 years old?

(END VIDEO CLIP)

ABRAMS:  Well those are the questions that have bounced around in the heads, I think, of a lot of people during this case.  Back in 1993, Latoya Jackson spoke out against her brother.  Now prosecutors want to use those statements and others in this trial.  They want to ask about the statements Latoya made on national TV where she claims to have seen checks written by Jackson to the parents of a boy prosecutors say was molested.

(BEGIN VIDEO CLIP)

L.                JACKSON:  I have seen checks payable to the parents of these children, and I don‘t know if these children were apparently bought, the parents by Michael, or not.  But I have seen these checks and I have seen these checks through my mother.  She has showed me these checks that Michael had written to these children and it‘s for a great amount and I‘m not speaking pennies.  The sums are very, very large amounts.

(END VIDEO CLIP)

ABRAMS:  Earlier this year Latoya told ABC News the statements were scripted by her then-husband, who she claims was abusive towards her.  Why does everyone in this case claim everything was scripted?

Here is the question.  Do you believe—did you believe what you were saying?

Would I do this on my own?  Absolutely not.  I love my brother. 

Michael is one of the sweetest persons on this earth.  You have no idea. 

He is so misunderstood.

Have you talked to Michael about that press conference?

No, we‘ve never discussed that press conference.

I don‘t know.  Susan Filan, how do they get that in?  That sounds awful for Michael Jackson when you see his sister, who looks just like him, saying all of those things.  You know, how does—prosecutors have any shot of getting any of that in?

FILAN:  I mean that‘s the key evidentiary question.  Because number one, it‘s hearsay.  It‘s an out-of-court statement.  Number two, can it be properly authenticated?  But assuming they can get past all of those evidentiary hurdles, boy, wouldn‘t that be great for the prosecution...

ABRAMS:  But they can‘t, right?  I mean...

FILAN:  ... it‘d be a real shot in the arm that they could use right now...

ABRAMS:  Sure.  Sure.  Of course it is.  But the bottom line is are they going to get it in?  I mean...

FILAN:  I—you know, I‘d rather research that than answer off the cuff.

ABRAMS:  Mike Taibbi, what is the argument as to why they should get that—why they should be admitted to even talk about this issue?

TAIBBI:  Well the argument, and I‘ve read this motion a number of times by the prosecution, is basically that because Tom Mesereau, who loves to put on a character defense, questioned his witnesses on direct, his first witnesses.  These are the young men now, young boys then, who as young men now are saying that they were never molested by Michael Jackson and then asked specifically, what do you think of Michael Jackson, all those statements came out on direct.

He‘s a generous guy, the sweetest guy.  He‘s child-like, et cetera.  That in a sense even without putting on a character defense, Mesereau has put on a character defense and that opens the door to impeach all that testimony by bringing up evidence of these other things, not just Latoya Jackson‘s statements but evidence of other alleged victims of Michael Jackson...

ABRAMS:  Right.  Let me go through that.

TAIBBI:  ... Jackson‘s alleged drinking.  You have the list...

ABRAMS:  Additional details of the 1993 abuse allegations.  That Jackson keeps sexually explicit material and shows it to kids for sexual gratification.  That Jackson took children to his bed while heavily addicted to Demerol and other controlled substances.  That Jackson gave alcohol to other children, statements by a Jackson employee and a friend that they don‘t leave their kids alone with Jackson.  That Jackson is reckless with his own children.  That dangling over the balcony incident, exposing others to danger in a public place.  And what Latoya said on national television.

Daniel, any hope of getting in that—the baby-dangling incident?

HOROWITZ:  No Dan, there‘s no hope of any of this.  It‘s almost like the prosecution wants this to be judgment day.  Everything Michael ever did, standing before God, not a jury.  We‘re in a courtroom.  Truthfully, I can understand the technical legal theories you know that Mike was talking about, that the prosecution is advancing.  They better hope...

ABRAMS:  What about the argument though...

(CROSSTALK)

ABRAMS:  Daniel, what about the argument that you know by the defense bringing up his character, that they can then rebut and say, look, you think he‘s got a great character?  We‘ll tell you—we‘ll show you another side of him.

HOROWITZ:  They can‘t.  First of all, that was offered to show the witnesses‘ own view of Michael Jackson.  Secondly, unless they were giving his reputation in the community, they can‘t be asked about what other people say.  Otherwise you can say, did you know a fan said he was very kind to her little child.  You could go on endlessly.  You can‘t just bring in everything in the kitchen sink through that very limited offer of proof that they made.  It‘s not going to work...

FILAN:  But Dan, the baby dangling is in...

(CROSSTALK)

FILAN:  ... because it came in, in the outtakes of the Bashir documentary, where Bashir questions him repeatedly about the baby-dangling incident.

ABRAMS:  Yes.

FILAN:  And also...

HOROWITZ:  That still doesn‘t come in—it comes in for that, show the motive for the conspiracy, but that‘s it.  Under the evidence code, under 352...

FILAN:  And he‘s also...

HOROWITZ:  ... you don‘t let in everything over and over again when it‘s prejudicial...

FILAN:  Guess what...

HOROWITZ:  ... or irrelevant.

FILAN:  It‘s in.

TAIBBI:  You know one other point about this, one other point, one other point, don‘t forget one of the key impacts that might result from even a debate on this motion by the prosecution is that the defense might be discouraged from the notion of bringing Stevie Wonder on or Elizabeth Taylor or any other star power, so-called, character witnesses.  I mean that‘s a possibility, too.

HOROWITZ:  Mike‘s right...

ABRAMS:  Hang on.  Mike, real quick, Jay Leno is scheduled now to testify.  He‘s actually going to testify, right?

TAIBBI:  Yes, not as a character witness though...

ABRAMS:  Right.

TAIBBI:  As a witness to a specific alleged event, allegedly a phone call from the accuser in this case with his mother in the background in which Jay Leno after listening to the message or the phone call concluded, these people are looking for a mark, i.e., me, Jay Leno.

ABRAMS:  Yes.  Is it bad that I can‘t get enough of listening to some of these outtakes?  I mean I don‘t know.  You talk about the outtakes from this—they talk about indentured servitude.  Listen to this.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  They also help you clean the house?

MICHAEL JACKSON, ACCUSED OF MOLESTATION:  Yes, yes, they help me clean up my room.  They help me dust.  They do windows.  They flush the toilet after they use the bathroom and...

UNIDENTIFIED MALE:  You let the chimps use your own bathroom?

M.                JACKSON:  Sure.  Yes.  Of course.  Bubbles would go himself.  He‘d sit at the table and he picks up his spoon and his fork and he eats and he‘s very polite and very intelligent.

(END VIDEO CLIP)

ABRAMS:  I mean of course, who doesn‘t!  How can you even ask me whether I‘d let me chimp use the bathroom.  What an offensive question that is.  My goodness gracious.  Another...

TAIBBI:  That is the alternate universe, Dan.

ABRAMS:  This is how—a little before that, this is how he described what happens when you wonder—you ask the question, what happens when Michael Jackson gets home from a hard day?  Here‘s what happens.

(BEGIN VIDEO CLIP)

M.                JACKSON:  If I come home from a hard day at the studio, and I come home to my deer or my chimps and I can hug them and they don‘t ask you anything.  They don‘t complain.  You know they don‘t gossip.  They just want a hug and some love and to get on with it.

(END VIDEO CLIP)

ABRAMS:  You know, but Daniel, this is actually part of the defense, isn‘t it?  That Michael Jackson is a wacky guy...

HOROWITZ:  Yes.

ABRAMS:  ... who does a lot of wacky, wacky things and to kind of understand Michael Jackson, you have to as best you can, put yourself in his universe.

HOROWITZ:  Yes.  I mean essentially what we‘re hearing is that children are just very sophisticated chimps.  Michael is a guy who needs to hug and cuddle and when—and children are part of that world.  And you know, it is possible, it could be.

ABRAMS:  Yes.  Mike, I mean how were the...

(CROSSTALK)

ABRAMS:  Hang on—Mike, how were the jurors reacting when he was talking about having his chimps dust the toilet?

TAIBBI:  I mean they were riveted, as we all were, listening to those outtakes.  It is a three-ring circus.  Michael Jackson‘s entire life is in fact on trial in this trial.  But I think that what the defense, the point the defense wants to make in showing that tape and thinks it‘s making it because the jurors are paying such rapt attention, is that that child-like persona that Michael Jackson communicates on that tape and in all those outtakes is not an act.

That‘s who he is.  He is a guy who goes home and hugs his deer.  I never thought about going home and hugging the deer in my backyard.  But this is a guy who does that.  This is a guy who communes...

FILAN:  Except...

TAIBBI:  This is—you know...

ABRAMS:  Go ahead Susan.

FILAN:  Except...

TAIBBI:  That‘s who he is, is what they are saying.

(CROSSTALK)

FILAN:  I accept what you‘re saying and I understood that and I saw that myself, but he wasn‘t completely honest on that tape either and so...

TAIBBI:  No, he wasn‘t...

FILAN:  ... here‘s this child-like personality who uses it when it benefits him.  He puts himself in the same class as Mother Teresa, Lady Di, Danny Kaye, he says they‘re all gone now and there‘s no one to carry on this loving work with the children.  But he also denies plastic surgery, he denies drinking, and then a few sentences later when Bashir says he‘s afraid to fly, he says oh, don‘t you want a little bit of “Jesus juice” before you get on the plane to relax you?  So, you know the childlike thing cuts both ways.  He‘s smart like a fox.

ABRAMS:  Yes.

TAIBBI:  Well maybe he lies like a child, too...

ABRAMS:  I don‘t know...

TAIBBI:  ... you know that could be part of it.

ABRAMS:  Bottom line is, you know, anyone can get their chimp to do their work around the house, you just got to give him a little credit just for that.  You know I mean...

(CROSSTALK)

ABRAMS:  ... bottom line is—no my chimp, I mean you know, all the time.

(LAUGHTER)

ABRAMS:  I mean it‘s great.  I just come home, the house is clean.  Like what‘s going on?  Susan Filan, Daniel Horowitz, and Mike Taibbi, thanks a lot.

Coming up—he gave up a life on Wall Street to serve his country in Iraq.  He‘s now charged with murder, faces the death penalty, but there could be a huge development in the case.

Plus, this woman lost her job because she was living with her boyfriend.  Cohabitation is against the law in several states.  I say if we‘re going to start citing or enforcing these types of laws, boy, there are going to be a lot of us who are going to be in a whole lot of trouble.  It‘s my “Closing Argument”.

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, a Wall Street hotshot turned Marine, charged with murder for killing two Iraqis, could face the death penalty, but there is a big development in the case to report.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  We‘ve got what could be very good news today for a Marine lieutenant who gave up a life at the top in New York for combat duty in Iraq.  We told you about Second Lieutenant Ilario Pantano after September 11, the one-time financial trader and new media exec returned to the Marines.  He‘d served in Desert Storm.  He went back to lead a 40-man combat platoon.  Until one of his sergeants accused Pantano essentially of murder, shooting two alleged insurgents in the back in April of 2004.  Pantano told “Dateline NBC” he was just trying to protect himself and his men.

(BEGIN VIDEO CLIP)

2ND LT. ILARIO PANTANO, MARINE CHARGED WITH MURDER:  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:  Sergeant Daniel Coburn was the key witness against Pantano in what‘s called an Article 32 hearing.  It‘s a military grand jury investigation, essentially, into the shooting.  But in a just-released report, investigating officer Lieutenant Colonel Mark Winn says it‘s possible that Coburn resented Pantano for demoting him and that quote—

“In each account that he provides, Sergeant Coburn changes key pieces of information.  I think now he‘s in a position where he‘s told his story so many times and so many versions, he can‘t keep his facts straight anymore.”

Based on that testimony and other holes in the evidence, Colonel Winn is recommending that the charges of premeditated murder, destruction of property and dereliction of duty be dropped.  He also recommended that Pantano get a non-judicial punishment for wrongfully desecrating the bodies of the alleged insurgents, firing two clips of M-16 ammo into their bodies.

“My Take”—I am not surprised.  We‘ve talked about this.  This case seemed weak at the outset and now it seems even weaker.  Bottom line, no one apart from Pantano saw if the two men refused to adhere to his order as they were in that car.  He says he thought they were turning around to harm him.  He‘s the only one who can know that.  I‘m willing to give a Marine in combat the benefit of that doubt.

Charles Gittins is Lieutenant Pantano‘s attorney.  So, how good the is the news for you today?

CHARLES GITTINS, LT. PANTANO‘S ATTORNEY:  Well it‘s excellent because it‘s supported by a very thorough, incisive and thorough report by the investigating officer...

ABRAMS:  What does it mean as a practical matter?  I mean so this investigating officer says look, I‘m recommending that the charges get dropped, but that doesn‘t automatically mean they do get dropped, right?

GITTINS:  No, it doesn‘t.  The convening authority has the authority to overrule the recommendation of the investigating officer.  Obviously, when you have a 16-page report that is thorough, that assesses credibility, that assesses motives, that addresses all of the evidence in a very complete way, convening authority would be unwise to go against the considered judgment of the self-chosen investigating officer.

ABRAMS:  Here‘s what Lieutenant Pantano told “Dateline” about what happened.

(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 were not going to be those dead soldiers and Marines and neither was I.

(END VIDEO CLIP)

ABRAMS:  The claim is that he told both of these guys he was with, a Navy medic and this sergeant to basically turn around and the next thing they know, that he‘s firing at these two alleged insurgents in the car, right?

GITTINS:  He told them to post security.  He didn‘t tell them to look in any particular direction.  He told them to post security.

ABRAMS:  OK.  The claim, though—I mean the claim that the initial people are bringing the charges were saying is oh, he has them turn around, this and that and as a result then shoots at them.  But no one is claiming that they saw what happened apart from Pantano, right?

GITTINS:  That‘s exactly correct.

ABRAMS:  So these guys are both sort of their backs turned and what this investigating officer is now saying is hey, this guy Coburn really may have had an ax to grind.

GITTINS:  He pointed out the inconsistencies and the changes in Sergeant Coburn‘s testimony to include changes from one day to the next during his testimony.

ABRAMS:  Here‘s the one thing that Lieutenant Winn is still going after it seems your client for.  Let me first play a clip of Lieutenant Pantano on “Dateline” and then something from what the lieutenant colonel said today.

(BEGIN VIDEO CLIP)

PANTANO:  The speed it took me to wipe the sweat off my brow is how quickly you fire and reload a magazine.  I shot them until they stopped moving.

(END VIDEO CLIP)

ABRAMS:  Well here‘s what Lieutenant Winn—Colonel Winn said.  We must never allow ourselves to vacate the moral high ground under the guise of sending a message to these Iraqis and others in order to intimidate.  I believe what Second Lieutenant Pantano did, when he shot that second magazine into two bodies, was morally and ethically wrong and for that he should be held accountable for his actions.

What do you make of that?

GITTINS:  Well that‘s, you know, that‘s the opinion of the investigating officer and we have a great deal of respect for it.  Ammunition is cheap.  Lieutenant Pantano‘s life was not cheap and he made the decision.  He used the rounds that he used.  And if he‘s going to be administratively punished for the amount of rounds he fired that‘s not a problem.  The problem was that he was charged with premeditated murder.

ABRAMS:  Yes.  And he could have faced the death penalty, right?

GITTINS:  That was the ultimate penalty for premeditated murder.

ABRAMS:  Wow.  All right.  Charles Gittins, it seems like it‘s a good day for you and your client.  Thanks for coming on the program.  Appreciate it.

GITTINS:  Very good day.  Thank you for having me.

ABRAMS:  Coming up—if you‘re living with your girl or boyfriend in North Carolina, look out.  There‘s one sheriff who‘s coming down to enforce the law that makes it a crime.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—I‘m sure you‘ve heard about some of these crazy archaic laws that some states still have on the book.  It seems harmless that in New Jersey, for example, slurping soup is against the law, but it‘s not so funny when someone actually decides to enforce them.  In North Carolina, like seven other states, cohabitation, meaning a man and a woman living together without being married is a crime.

Sure the laws are relic from a different era, but at the Pender County North Carolina Sheriff‘s Office, Sheriff Carson Smith shows us why these laws matter.  He cited the law when telling 40-year-old Deborah Hobbs, a sheriff‘s dispatcher in Raleigh, that she had to quit her job unless she married her live-in boyfriend.  Hobbs is suing the state, arguing the law is unconstitutional.  But North Carolina citizens, beware.

If these ridiculous old laws are going to be cited or enforced, not only are you forbidden from living with your boyfriend or girlfriend, but if you want to have sex in the state, you can only do so missionary position, you better pull the shades down, and if you want to stay in a hotel with your significant other, the law says you have to stay in separate twin beds and definitely can‘t have sex in the space in between the two beds and it‘s not just North Carolina.

The state of Virginia recently prosecuted a local attorney for adultery after his jilted lover went to police after being dumped.  Nearly half the states still have laws on the books allowing for prosecution of a husband or wife who has sex outside of marriage.  Talk about prison overcrowding.  These laws are not enforced for a reason.  Not because adultery is good or right, but because it is a civil, not criminal issue.  Look, even though it will be obvious to most that enforcing these laws is not an effective use of the limited resources of the state, some random official like this North Carolina sheriff will use the law as an excuse.

If police and prosecutors are looking for obscure laws to enforce, well Minnesota, naked sleepers can be prosecuted.  In Virginia, it‘s illegal to have sex with the lights on.  And in New York, men will have to rethink their pickup strategies.  Flirting with a woman, $25 fine.  Oh-oh!  I‘d better start cleaning out the piggy bank.  Bottom line, these laws can be funny.  But in the wrong hands, they‘re also just downright dangerous.

Coming up, some of the wacky e-mails we received from all of you. 

Coming up.

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say, now it‘s time for “Your Rebuttal”.  I was out yesterday, so rather than have your responses to the guest host, I wanted to give you a sense of the sort of e-mails that don‘t make it on the air usually.

For a few from the past days, Marilyn Tortorice asks, “How do I get in contact with Mark Burnett?  I have an idea that I‘d like to discuss with him.  Can you forward my e-mail address to the appropriate party?”  I don‘t know.

Eric Morin, “I would like to be a guest on the show sometime either via phone or otherwise.  I‘m a very intelligent individual and have many views on a variety of topics, but since I‘m only 20 years old, no one will allow me to share those views because as they say, I don‘t have any real life experience and firsthand knowledge.”

Tina with a joke.  “What is Macaulay Culkin‘s favorite salad dressing? 

Neverland Ranch.”  That‘s a good one.

From Roanoke, Virginia, Gayla asks, “My daughter and I saw a woman doing the forecast on the Weather Channel, looks exactly like you, only you‘re better looking.  Is she your sister?”  No.

Stephanie Koontz writes, “A face only a mother could love, why isn‘t that tag line under Dan Abrams‘ picture?”

(LAUGHTER)

Sarah Collins, St. Paul, Minnesota, “I love your show, but I think you need to find something better to do at the very end as the camera pans out other than tear off your tie, mike and bolt out of your chair.  Hot date?  Parking meter need another quarter?  Don‘t you have some papers or something you can shuffle?”  You know, Sarah, I hate that.  It‘s like, it is so fake.  You know the idea that people look after the show—I get up.  It‘s what I do at the end of the show.  I‘m done.  I go home—and Friday, particularly.

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

“OH PLEAs!”—because one Italian man couldn‘t fulfill the Italian stallion title, now Italy Supreme Court is making him pay for it literally.  When Christina S., as she is known, married her husband, she thought she—she thought he was the whole package.  Turns out her husband had a damaged good and Christina wants some payback.  Christina annulled the marriage in the 1990‘s on the grounds of non-consummation.  You see, the groom was impotent, a fact she didn‘t learn until her wedding night.

But the annulment was not enough.  The wife brought her unexcitable ex to court suing him for spoiling her right to sexuality and a family.  Well a court in Palermo refused to award her any money, claiming her ex-husband wasn‘t the blame for his ailment.  Italy‘s Supreme Court came to her rescue, though, ruling in Christina‘s favor, stating quote—“her fundamental right to fulfillment in the family and in society as a woman, a wife, and possibly as a mother, was violated.”  A lower court in Sicily now gets to determine the amount of the damages.  How do you come up with that number?  Am I the only one who feels sorry for this guy?

That does it for us tonight.  This is a weird show tonight, right? 

It‘s Friday the 13th.  I‘m going to get up—oh wait, I have to wait until

·         coming up next, “HARDBALL” with Chris Matthews.  Have a great weekend. 

See you Monday.

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.

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