updated 6/9/2005 2:21:24 PM ET 2005-06-09T18:21:24

Guests:  Daniel Horowitz, Jim Moret, Susan Filan, Stacy Brown, Tim Susanin, Lucy Dalglish

DAN ABRAMS, HOST:  Coming up, live from the courthouse, it‘s the Michael Jackson case in Santa Maria.  The judge offers his final words to the jurors before the closing arguments begin tomorrow. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  Jurors have 10 counts to consider.  We lay out exactly what they are.  And with the closing set to start tomorrow, our lawyers present their mock closing arguments for each side. 

And the end of the case brings a fractured Jackson family to Santa Maria.  They may no longer be making music together, but most of the “Jackson Five” were here to show support. 

Plus, “Deep Throat” revealed, but with leaks like that have led to a federal investigation today with “The Washington Post” reporters being threatened with jail time?  We ask is it time for a federal law to protect journalists from being forced to reveal their sources. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi, everyone.  First up on the docket tonight, live from the Santa Maria courthouse, where Michael Jackson will learn his fate within days.  Today on the eve of closing arguments, Jackson was flanked by two other members of the “Jackson Five”.  They had a “Jackson Five” quorum in court today.  We‘re going to get to the details on that later, but, first, inside the courtroom, the judge laid out the charges against Jackson for jurors, ordered them back here tomorrow morning at 8:30 a.m., Pacific Time for closing arguments from both sides. 

Arguments that really could make or break the case.  Our legal team presents closing arguments for each side in a moment.  The jury will take the case into the deliberation room and decide if Michael Joe Jackson is guilty of conspiring to extort, abduct, and imprison the family we‘ve talked about so much of the accuser.

Four acts of molestation, committing lewd acts upon a child.  One act

·         attempted act of molestation and four counts of administering alcohol to a minor with the intent to molest.  Just like the judge did with the jury today, we are going to take you through the specifics of what Jackson is accused of. 

Joining us here in Santa Maria, MSNBC legal analyst and former prosecutor Susan Filan, who was in court today, and criminal defense attorney Daniel Horowitz and attorney and “Inside Edition” senior correspondent Jim Moret.  All right, so we hear about all these charges again and again.  Let‘s really lay out exactly what we‘re talking about, exactly what these jurors are going to evaluate before we go to Susan and Daniel‘s mock closing arguments. 

First charge, conspiracy.  Between February 1, 2003 -- and this 2001, 2003, and March 31, 2003, Michael Jackson conspired with Ronald Konitzer, Dieter Weizner, Frank Casio, Vinnie Amen and Marc Schaffel to abduct, falsely imprison and extort the accuser and his family by unlawfully controlling, withholding, isolating, concealing and enticing and threatened them.  Possibly sentences up to four years for the conspiracy to abduct a child.  Up to one year for the false imprisonment.  Up to four years for the extortion. 

All right, so bottom line, Daniel Horowitz, if Michael Jackson is convicted of this, and let‘s say that they believe all of them, conspiracy to abduct a child, conspiracy to falsely imprison, conspiracy to extort, how much time are we talking about?  About four years? 

DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  No Dan, he could get as much as 16 to 18 years.  You know a single count of lewd conduct with a child is a six-year sentence as a default, the judge could give him eight, and then you‘d take the other terms and stack them, and through a complicated formula, it comes to about 16 ½ to 18 years.

ABRAMS:  Just on conspiracy.  I don‘t know that that‘s right.  Are you sure, Daniel? 

HOROWITZ:  No, not just on the conspiracy.  Sorry Dan...

ABRAMS:  Yes.

HOROWITZ:  ... I didn‘t hear you.

ABRAMS:  Yes.  Right...

HOROWITZ:  Just on the conspiracy...

ABRAMS:  Right...

HOROWITZ:  Yes, that‘s—you‘re right on that.  That‘s just about—

I think a six-year term...

ABRAMS:  Up to four years...

HOROWITZ:  Yes, up to four years.  OK, but...

(CROSSTALK)

HOROWITZ:  ... if he goes on the conspiracy and the others, then it...

ABRAMS:  Right.

HOROWITZ:  ... adds up like I said. 

ABRAMS:  All right.  Jim Moret look, the bottom line is on this conspiracy charge is what?  As a legal matter, these jurors have to believe what?  That Michael Jackson had discussions with these other people, that he was somehow in an agreement with these other people to do what? 

JIM MORET, “INSIDE EDITION” SENIOR CORRESPONDENT:  Well anything illegal.  I mean it doesn‘t have to be discussions.  Michael Jackson simply has to agree with one of these other co-conspirators to do an illegal act, in this case imprisonment—false imprisonment, extortion, child abduction.  And then there are 28 what they call overt acts, and these are all bits of evidence that have been introduced throughout this trial. 

And if the jury finds an agreement with Michael Jackson and any of these co-conspirators and finds that any of these overt acts were committed by anyone, not Michael Jackson, but anyone, these unindicted co-conspirators, then Michael Jackson will be found guilty of conspiracy.  And I have to tell you something, Dan, you were in the courtroom with me...

ABRAMS:  Yes.

MORET:  ... it was very serious in that courtroom.  The jurors were following along.  It was—it had a tense feeling in there.  It took the judge more than half an hour to go through all of the allegations on conspiracy, and if that doesn‘t tell the jury that this is important nothing will. 

ABRAMS:  And I‘ve got to tell you, I noticed, Jim, inside the courtroom today that it seemed, and again this is reading tealeaves, the prosecutors before court were sitting there you know smiling with each other, chitchatting, this and that.  Michael Jackson is staring straight ahead.  His lawyer offering him some reassuring words.  Jackson looks terrible, I‘ve got to tell you.  It looks like he‘s lost weight...

(CROSSTALK)

MORET:  There‘s no question about it...

ABRAMS:  He looked sickly...

MORET:  I agree with you 100 percent.  I think that the prosecution almost looked jovial, like they were at a sporting event in a way, and the defense team looked very sullen and serious and somber, and I think we both noticed the same thing at the same time, and that‘s just before the jurors were brought in.  There‘s no question about it. 

ABRAMS:  Molestation—here‘s the key count—counts two to five.  Between February 20, 2003 and March 12, 2003, Jackson willfully, unlawfully and lewdly committed a lewd and lascivious act upon the accuser with the intent of arousing, appealing to, and ratifying the lust, passions, and sexual desires of himself and the accuser.  Here, Susan, we‘re talking about two counts of the boy himself saying Michael Jackson molested me, and two counts of his brother saying, I saw Michael Jackson molesting him, right? 

SUSAN FILAN, MSNBC LEGAL ANALYST:   That‘s exactly right.  And today the prosecution elected to specify which count goes to which act.  So now we know that count two is the first time that the accuser says he was touched.  Count three is the second time the accuser says he was touched.  Count four is the first time his brother says he saw him being touched. 

And count five is the second time his brother saw him being touched.

This will go on to a verdict form.  What this does is this puts in stark outline form, a roadmap for this jury to follow, and once they start going through the analysis and checking off the boxes, it‘s one step closer to conviction after listening to the judge lay it out. 

ABRAMS:  When you say one step closer to conviction, what do you mean? 

FILAN:  All of a sudden now it doesn‘t seem like such malarkey or such a cooked-up story.  We‘re not talking about the crazy accuser‘s mother anymore.  We‘re not talking about leg waxes and trips to Brazil.  Now we‘re talking about someone sticking their hand down somebody else‘s pants for their sexual gratification, and it‘s a kid.  It‘s a 13-year-old boy.  When you couple that with the prior bad acts, we‘ve heard the pattern, we‘ve heard the grooming, how it‘s happened to other kids, he settled out of court, same allegations, all of a sudden it‘s not such a joke. 

ABRAMS:  Yes.  And each count there, Michael Jackson could face up to eight years in prison for each counts, two to five.  Count six:  Jim Moret, explain to us what this is, attempted molestation, that between February 2003 and March 12 that Jackson attempted to have the accuser commit a lewd act upon Jackson‘s body with the intent of arousing and I guess I should warn my viewers that this I think gets a little bit graphic, but the bottom line is this boy is saying that Michael Jackson tried to get the boy to masturbate Michael Jackson, right? 

MORET:  Well it‘s even simpler than that.  Basically there was one area of testimony where the accuser said Michael Jackson grabbed his hand and put it on Michael Jackson‘s genitals and then the boy grabbed it away.  And you have to remember one other thing, and I think this jury may have been stunned to discover that it‘s not actually molestation.  It‘s a lewd act. 

And all you really need is a touching of the body of someone younger than 14 with the intent to arouse either person.  And that touching, Dan, can be on top of or below the clothing.  It doesn‘t have to be something that we would think of as a molestation to get to this lewd act count.  So I think the jurors may have been surprised to learn how low the threshold really is on the other counts, as well as this attempted count. 

ABRAMS:  That‘s a very important point that Jim just made.  Because, you know, as we talk about this molestation here, you know, the charges, Jim‘s right.  It doesn‘t have to be some totally nasty specific thing.  The bottom line is if you‘ve got a man trying to arouse himself with a boy, and he touches the boy in whatever way, it‘s a crime. 

All right.  The alcohol counts and these are counts seven to 10.  And what‘s interesting about these is each of these counts relates to giving the boy alcohol in an effort to molest him on those four counts that we talked about earlier, Daniel Horowitz.  It‘s between February 20, 2003, he unlawfully gave the accuser alcohol to enable him and assist him to commit child molestation, but number seven relates to trying to be able to molest him in count 2 and number eight in count 3, right? 

HOROWITZ:  Yes.  Dan, it‘s an interesting charge.  First of all, a lot of people don‘t understand.  Can you convict somebody of just these alcohol offenses, and if you acquit him by a reasonable doubt on the underlying lewd acts, and the answer is and you said this the other day, yes, you can.  This is actually...

ABRAMS:  Right.

HOROWITZ:  ... a crime that was invented in the 1890‘s, put on the books in California to punish people who slipped laudanum or opiates to people, knocking them out, so that then the warehouse they were guarding could be robbed.  But it applies to any felony, any drug including alcohol meant to knock the person out or weaken them so that then you can commit the crime...

ABRAMS:  Yes.

HOROWITZ:  ... that is a crime in and of itself. 

ABRAMS:  All right.  Susan, Daniel, and Jim are going to stick around.  Coming up, Tom Sneddon and Tom Mesereau are going to be putting the final touches on their closing arguments.  They‘ll get four hours for them.  We‘re giving Susan and Daniel three minutes for their versions.  What would they tell the jury, coming up. 

And Michael wasn‘t alone in court today.  His parents and two brothers are with him.  More of the Jacksons expected in court tomorrow.  We are going to talk to a Jackson family insider about what the family really thinks about Michael Jackson‘s guilt or innocence. 

Plus, “Deep Throat” finally revealed.  Woodward and Bernstein weren‘t investigated, didn‘t go to prison for protecting his identity.  Would that be the case today?  Two journalists facing prison time for refusing to reveal their sources.  We debate, is it time for a federal law to protect journalists from being forced to reveal their sources?

Your e-mails abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  I respond at the end of the show.

(COMMERCIAL BREAK)

(NEWS BREAK)

ABRAMS:  We‘re back with closing arguments in the Michael Jackson case scheduled to begin tomorrow.  We‘re at what could arguably be the most important part of the trial.  The attorneys‘ opportunity to stand up in front of that jury, lay out the case.  The closing arguments always leave a lasting impression on jurors.  The last thing the 12 people deciding the fate of Michael Jackson will hear from both sides before they begin deliberations.

That said, we decided to let two of our regular guests have a go at their version of the closing arguments.  First, MSNBC analyst and former Connecticut prosecutor Susan Filan for the prosecution.

FILAN:  Ladies and gentlemen of the jury, you‘ve heard evidence in this case and based on that evidence you must convict Michael Jackson of all charges.  You heard evidence that he sexually molested a 13-year-old cancer survivor.  That boy came into this courtroom and testified before you that on more than one occasion, Michael Jackson stuck his hands down his pants and masturbated him.

When he was a cancer stricken boy in the hospital, he befriended Michael Jackson because he admire he so.  Jackson eventually invited him to Neverland where he let him sleep in his bed, plied him with alcohol, showed him pornography, all part of the grooming process to break down his inhibitions so that he could sexually molest him.  On two occasions, the accuser‘s brother walked in on Jackson while he had his hands down his brother‘s pants.

The accuser‘s sister testified before you that she saw Jackson take a liken to her brother to the point where she was excluded and the brother was excluded because Jackson wanted to be with the accuser himself.  She saw Jackson give this boy and his brother alcohol on more than one occasion.  Jackson admitted to the world in a documentary made by Martin Bashir that he likes to sleep in bed with little boys and he sees nothing wrong with it.

He tells you ladies and gentlemen in his own words what he does and that it isn‘t sexual, but ask yourself, does that seem credible to you that 365 nights a year he has a little boy in bed with him and it‘s completely innocent?  Does that fly in the face of logic?  Ask yourself, does that make sense?

Don‘t leave your common sense outside the door when you go into that deliberation room, ladies and gentlemen.  It is one of the most important tools that you‘ll have in deciding this case.  You‘ve also heard that Jackson has sexually molested boys in the past.  You heard from one boy himself who came in and told you pretty much an identical story to what happened in this case and Jackson paid that boy money in an out-of-court settlement so that he wouldn‘t have to face charges.

You also heard from the mother of the ‘93 accuser who her son had the same experience as the accuser in this case and she too settled out of court for many, many millions of dollars.  This is a pattern of Michael Jackson, inviting young boys to Neverland, giving them alcohol, showing them pornography, having them sleep in bed with him so that he can sexually molest them.

Remember, you heard evidence that the fingerprints of the brother‘s accuser were on the same magazine and Michael Jackson‘s.  Fingerprints, ladies and gentlemen, are a factual indication that the boy and Jackson visited that same adult magazine.  Lastly, Jackson participated in a conspiracy to abduct, extort, and falsely imprison the accuser, and the accuser‘s family.  Why?  In a response to the train wreck of the Bashir documentary, he had to get his destroyed career back on track, and he needed them to make a rebuttal video, and he falsely imprisoned them, abducted them, and extorted from them, and you heard 28 overt acts, ladies and gentlemen. 

For Jackson to be guilty of this, he doesn‘t have to be the puppet at the top of the conspiracy operating all the little strings.  He has to be part of it and who benefited from this conspiracy?  Michael Jackson.  So he could salvage his once very powerful musical career.  The evidence you heard in this case is incontrovertible ladies and gentlemen.  Don‘t let him get away with it again. 

ABRAMS:  All right.  Very nice.  That‘s the prosecution.  And now for the defense, criminal defense attorney Daniel Horowitz. 

HOROWITZ:  Everybody has a special place in life.  It could be a stream where you sit, it could be a tree that you sit under, a home where you grew up, or just being with somebody you love.  For Michael Jackson, that special place was Neverland.  And when he could, he made Neverland real.  And to Neverland, he brought all the children who were lost, who lacked something in their life. 

Kids whose parents didn‘t love them, kids whose parents couldn‘t provide for them, and in this case a child who was wracked with the most horrible type of cancer, and when these children were in Neverland, they were able to laugh and play and be free.  Their hearts soared and they were loved.  And this young man came to Neverland, and he was loved, and through this love of Neverland and through whatever blessings that came to him, this young man was cured, and that is really the wonder of what Michael Jackson built. 

But into Neverland, which was a dream made real, just like every dream made real, came the reality of the world.  The greed of all of the witnesses who testified one after another with the financial motive in this case.  Suing Michael Jackson, owing Michael Jackson money, and then this mother, this mother of this young man, bringing these children from their innocence, through the hard times of his cancer, but then also involving them in her world of untruths, of lies, because children do lie. 

Now, look.  The J.C. Penney case is just the start of what is happening to Michael Jackson.  It is the pattern, the practice.  It‘s where the parent first got these children directly to be involved in the legal system and to do so in a false manner.  She sent them to acting school to get their story right.  That‘s what we heard.  The young brother with this fantastical story of just happening to walk into the room during the two key molests that are part of this case.  Ridiculous, unbelievable, but he gave it to you straight in the eye as if it were true. 

Children do lie.  And this young man, the accuser who on videotape in front of the press, in front of the public, said I love Michael Jackson.  He‘s been so good to me.  When Neverland started to crumble, changed his story.  You heard on the witness stand different versions, changing of these events, and then you saw the videotape at the end of the trial.  You could see how that was so different from his testimony in this court as he grew to learn how to improve his story. 

Ladies and gentlemen, children lie.  And Michael Jackson, as innocent, as naive as he was, has never, never molested a child.  He paid money originally to the first kid.  He never should have, because that started the train of people saying I want money too.  There‘s a decade of gap with no molest accusations.  Macaulay Culkin told you it didn‘t happen.  Now what is going to win?  Greed and money or innocence and kindness?  That is in your hands. 

I ask you to go back there into that jury room and deliberate, not just on what is true and not true, but realize that you have the dream of Neverland, but also the life of a very real person, Michael Jackson in your hands.  Please come back quickly with a not guilty verdict.  Thank you. 

ABRAMS:  Very nice.  Very nice.  I watched Daniel, I‘m thinking, you know, this man won me $2.1 million, and you can go—no...

(LAUGHTER)

ABRAMS:  ... Daniel, I‘m just saying it looked like an ad for an infomercial...

All right, before I ask Jim Moret about this, bottom line Daniel, it seems to me that the heart of the defense case here is that this is a case about the credibility of a family led by a mother who cannot be believed.  And the other point that I think is crucial here for the defense is that the prosecution is moving forward they should argue with a timeline that doesn‘t make sense.  That Michael Jackson is forcing everyone to make this make nice on this videotape and say nice things and then after they do it, then he molests the boy. 

HOROWITZ:  Exactly.  Dan, this is a case where you can pick out facts and put together any version of events you want.  Both the prosecution version that we will hear tomorrow, the defense version, or even a third or forth version.  So in the end the way this jury votes will depend upon what they feel in their heart.  They‘re going to go with their gut first, and that‘s where I went...

ABRAMS:  Yes.

HOROWITZ:  ... with my closing argument.  Grab their heart and then the minds will follow, and that‘s why I think ultimately Michael will be acquitted. 

ABRAMS:  And, Susan, and I‘ve said this before, and I think that

almost the first line of the prosecution‘s closing argument has got to be

something about this is a case about a man who has made a pattern of

sleeping with boys and sometimes molesting them.  This is not about a

single incident of a single boy, who is making this accusation

FILAN:  I couldn‘t agree with you more.  They‘ve got to get this jury to step back and look at the big picture here about what we‘re talking about.  They‘ve got to focus in on Michael Jackson, who he is, how he behaves in the world, what his mindset is, which is basically the rules don‘t apply to him, and once they can...

ABRAMS:  Yes.

FILAN:  ... understand him from the point of view of a pattern of behavior, and not from this kind of crazy, alternate reality that the defense wants you to go into with the celebrity animal parties and you know somebody has to do it, Mother Teresa is dead, so I will.  The prosecution really has to pull back from that nuttiness and focus them in on pattern, conduct, behavior, what...

ABRAMS:  All right.

FILAN:  ... happened in this case and what has happened in the past.

ABRAMS:  Everyone is going to stick around.  Jim is still us with. 

Thanks to Susan and Daniel for putting those together.

Coming up, Michael Jackson‘s mother has been in court with him just about every day, but his brothers and sisters not that often.  A lot of Jacksons expected to be here tomorrow.  So what is the real deal with the Jackson family and how they feel about Michael?  We‘ll talk to a Jackson family insider next.  And the people Jackson can really count on are his fans, but just who are these people who show up at the courthouse every day? 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, live from the Michael Jackson case, Randy and Tito Jackson join their parents in court today.  More Jacksons expected tomorrow for the closing arguments.  The question, what do the Jackson brothers and sisters really think about Michael Jackson?  We‘ll talk to a family friend, first the headlines. 

(NEWS BREAK)

(MUSIC)

ABRAMS:  The world first got to know the Jackson family back in the ‘60‘s and ‘70‘s.  Michael was the star of the family act, the “Jackson Five”.  Now, his child molestation trial is bringing the family together again.  Brothers Tito and Randy showed up for court today, along with their parents Joe and Katherine.  And we‘re hearing more of Jackson relatives, like brother Jermaine and sister Janet could all be in court tomorrow. 

So, what do we make of the family bringing in the big guns so to speak now?  Joining me now is MSNBC analyst and Jackson family friend Stacy Brown, and back with me again is the legal team as well.  All right, so Stacy, let‘s go through.  First we got this family tree for those people who are not that familiar with the Jackson family, in order of their ages, you got Rebbie, Jackie, Tito, Jermaine, Latoya, Marlin, Michael, Janet, and Randy. 

Bottom line, Stacy, do they all think Michael is innocent? 

STACY BROWN, JACKSON FAMILY FRIEND:  Unequivocally, Dan.  They all think that he‘s innocent, and they all believe like he, that this is a shakedown, a conspiracy. 

ABRAMS:  So what do you make of this comment from Latoya Jackson back in 1993.  This is a press conference that she held and here‘s what she said about her brother Michael. 

(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 children and do that that are nine, 10, 11 years old? 

(END VIDEO CLIP)

ABRAMS:  She took that back later, right? 

BROWN:  Absolutely, she did.  She took it back—well and she said that those were the words of her ex—late husband, Jack Gordon.  She said that he would beat her and make her say these things.  All of that was—and we‘ve heard this word a lot during this trial, scripted. 

ABRAMS:  Yes.  I don‘t know.  I mean, you know she goes on.  I mean there‘s more.  She didn‘t just say that.  I mean let‘s put up 13 for a minute.  Do we have that one?  This is Latoya talking about having seen checks. 

(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‘s shown me these checks that Michael have 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:  Now, I remember Stacy, when I was at Neverland with you, Latoya there was, and she was very supportive of Michael Jackson.  So now you‘re going to see the whole Jackson clan coming to court to support Michael? 

BROWN:  That‘s the plan, Dan.  They believe that this is the critical point.  All the while everyone has been asking, where have they been, where are they?  And even if you listen to Michael‘s spokesperson, Raymone Bain, she says now is the time.  They will be there.  They know that the case is prepared to go to the jury and that this it is.  I mean now or never if are you going to support him, you‘ve got to support him now, and they are coming to support him. 

ABRAMS:  How much—let me ask Jim Moret.  Jim, how much have we seen of the family members up to this point in court? 

MORET:  To be honest with you, we‘ve seen very little.  Katherine, Michael‘s mom, has been there every single day.  But there was a point for seven or eight days in a row where she was the only person in the entire row that was there to support Michael Jackson.  We‘ve seen one or two brothers and we‘ve seen his father there from time to time.  His former manager is here now.  There is clearly a sign—a showing of support, but it hasn‘t been overwhelming to say the least. 

ABRAMS:  Very quickly, Stacy, why?  Why haven‘t they...

BROWN:  In fairness to the Jacksons, I will say this.  And I‘ve heard this from several of them, that had they been showing up every day, it would have been taken as a sign that they would trying to intimidate the jury, intimidate the proceedings, so they felt like they were damned if they did, and damned if they didn‘t.  Well they have no choice now.  They will be there. 

ABRAMS:  All right.  Stacy Brown, I guess we‘re going to be seeing you out here soon as well.  Susan Filan, Daniel Horowitz, Jim Moret thanks a lot.

Coming up, “Deep Throat” has been revealed.  It took decades to find out who he is.  But the question is, what would people have thought today?  Would the journalists have been investigated if this had happened in 2005?  We debate.  Is it time to have a law which says journalists have a privilege.  They don‘t have to reveal their sources. 

And one of you says, we got it all wrong.  You say this is the real “Deep Throat”.  Your e-mails abramsreport@msnbc.com.  Go through them at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, now that we know who “Deep Throat” is, question has to be asked if Woodward and Bernstein tried to protect a source like that today, would they have ended up in jail?  We‘ll have the debate, coming up.

(COMMERCIAL BREAK)

(NEWS BREAK)

(AUDIO GAP)

ABRAMS:  Well that was supposed to be Pat Buchanan, Richard Nixon‘s former speechwriter and MSNBC political analyst taking digs at Mark Felt, the one-time number two man at the FBI.  Now, he‘s been identified as “Deep Throat” in that covert whistle blowing role.  Felt fed information to “The Washington Post” Bob Woodward and Carl Bernstein stories that triggered the Watergate hearings and ended eventually President Nixon‘s presidency. 

There was no federal investigation specifically asking Woodward to name “Deep Throat”.  It‘s hard to imagine that wouldn‘t happen in today‘s Washington, where reporters for “TIME” magazine and “The New York Times” may still get jail time for not giving up a government source to a federal grand jury.  Woodward and Bernstein became heroes to many. 

“Deep Throat” never faced a subpoena, and now other reporters still may go to jail in this time.  So the question—is it time for Congress to follow the majority of states and enact a shield law to protect journalists from having to give up their sources?  Congressmen Mike Pence and Richard Boucher and Senators Richard Lugar and Chris Dodd, Republicans and Democrats are offering a bill that would do just this. 

Lucy Dalglish is with the Reporters Committee for Freedom of the Press and Tim Susanin is a former federal prosecutor whose cases includes the Whitewater investigation.  All right, you know Tim, some people always say to me, they say why should journalists be any different than anyone else?  And the answer is they aren‘t any different, but when the framers wrote the Constitution, they wrote the First Amendment, and in a way that does make it a little bit different in this kind of context for journalists.  Why not?  Why not create a federal law? 

TIM SUSANIN, FORMER FEDERAL PROSECUTOR:  Well, I would take a step back in your analysis, Dan, and say they really are no different from citizens.  You know, if you or I as regular citizens had information that was relevant to an investigation by a legitimate law enforcement agency, conducting a grand jury investigation, and we had information of a crime, and there was a subpoena for us to come testify before the grand jury and provide that information, we really would be in the same situation that a reporter would be, had we not provided that information. 

In other words, we would face jail time, and what has to happen here is while we all, of course, agree with the freedom of the press and free speech and First Amendment and so forth, there have to be legitimate boundaries.  There‘s no such thing as absolute free speech as you know from law school. 

ABRAMS:  Yes.

SUSANIN:  You can‘t yell fire in a crowded movie theater and cause a stampede and not have exposure, and what happens here is we have to balance the importance of a criminal law investigation against free speech. 

ABRAMS:  Yes, but I don‘t think anyone is saying, Lucy, that you shouldn‘t have to balance it, right? 

LUCY DALGLISH, REPORTERS CMTE FOR FREEDOM OF PRESS:  No, not really.  We have a patchwork of laws out there.  Right now, what‘s really causing an enormous amount of trouble is that there it no protection for journalists or limited protection or I guess it‘s under debate how much protection journalists have in the federal courts.  What‘s really causing confusion among journalists and their sources is that 31 states and the District of Columbia provide varying levels of protection for journalists and their sources. 

ABRAMS:  Right, but apart from the confusion amongst the states, what about the policy point that Tim is making, which is why should journalists be any different than anyone else, when people say look, there‘s a grand jury, there‘s something else out there, we need the information, the journalists got it. 

DALGLISH:  Well those states have determined that journalists are different, that that is a fundamental difference...

ABRAMS:  But why should they be different?

DALGLISH:  Because the point of giving protection for journalists is to ensure that information continues to flow to the public.  We‘ve made a decision in this country to protect journalism in other types of context, because we realize that it is very important that citizens have information about what‘s going on in our society so that they can make educated decisions at the ballot box.  You want to maintain the flow of independent information to the public so that they can make those decisions, and one way of doing that is to allow journalists to protect the identity of confidential sources. 

SUSANIN:  Dan...

ABRAMS:  Yes, because Tim, the bottom line is if journalist don‘t have any kind of protection, there—people are going to be very reluctant to expose corruption in government, because they‘re going to say look, I don‘t want to be hauled in there if you‘re going to be able to disclose who I am. 

SUSANIN:  Right.  Well you know reluctant witnesses are a fact of life in all kinds of litigation, whether it‘s civil or criminal involving government agencies or not.  But the point Lucy makes about those 30 states, though Dan, overlooks I think a finer point there and that‘s this.  Those 30 states have valued the flow of information.  We all want the flow of information. 

But they have valued that at the expense of something else that‘s important to us, and to any democracy, and that is security.  So if you have states that are saying there should be absolute protection for these reporters, what you‘re doing is really opening that valve and shutting off the other valve that would allow criminal...

ABRAMS:  Yes.

SUSANIN:  ... investigations to go forward...

(CROSSTALK)

SUSANIN:  ... and security is just as important as free speech. 

DALGLISH:  You know the states...

ABRAMS:  I don‘t know about—security is a very loaded word to suggest that somehow we‘re talking about you know a terrorism investigation here.  We‘re talking about...

SUSANIN:  Well these days we‘re talking about terrorist investigations all the time, aren‘t we? 

ABRAMS:  Well which cases are you talking about, Tim, where journalists are being asked to turn over their sources that relate to national security? 

SUSANIN:  Well let‘s go back to the CIA case.  Once someone has their name out there, that person could have a bullseye on their back.  Once they‘re out as a CIA agent...

ABRAMS:  Right, but the person‘s name was already out there and so the question was as to who leaked it is not going to be an issue of national security except with regard to the future, right?

SUSANIN:  Well one of the reasons we undertake criminal prosecutions and investigations, Dan is to have a chilling effect on that conduct being repeated.  And I certainly think in this day and age, in this age of terrorism, we certainly don‘t want those agents being outed...

(CROSSTALK)

SUSANIN:  ... you know I still think that freedom of information flowing is a value, but security is just as valid.

ABRAMS:  Lucy, final word. 

DALGLISH:  Well you know the 30-some -- 31 states in the District that provide a shield law, there are another 18 or so that provide some sort of common law privilege.  Those are states that also have criminal investigations, and you know what?  The criminal justice system in those states has not come to a grinding halt. 

ABRAMS:  Right.

DALGLISH:  There is still justice being done and in fact, in the Plame case, just the other day, 34 attorneys general from all across the country filed a mecous (ph) brief on the side of “TIME” magazine and “The New York Times” in support of the Supreme Court taking this case.

(CROSSTALK)

ABRAMS:  I‘ve got to wrap it up...

(CROSSTALK)

ABRAMS:  Yes and Tim Susanin, boy I wish we had more time on this one. 

I have a lot more thoughts here...

SUSANIN:  Thanks Dan.

ABRAMS:  Coming up, who are these people?  Michael Jackson‘s fans are at the courthouse in full force today.  Some of them have been here for weeks.  We talk to some of his die-hard supporters, coming up.

(COMMERCIAL BREAK)

ABRAMS:  Do you ever wonder who those people are who come to court and yell, Michael, Michael every time Jackson arrives?  Well an e-mail went out earlier this week for Michael Jackson‘s Web site asking fans to show up at the Santa Maria courthouse to show support.  After all, we could soon find out if he‘ll only be singing in a prison shower.  Some die-hard fans heeded the call and according to Richard from Northampton in England, his boss kind of thought of this like jury duty, like a civic duty.  He purchased a last-minute ticket, came here to California to rally for Michael. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  I know I‘m not Michael‘s family, but Michael has always looked to his fans and he‘s always given every indication that he likes the fans to be here for him, so it was the least I could do.  I know my boss is for it.  He managed to phone me at my hotel and said, you know well done.  It‘s a good job what you‘re doing.

(END VIDEO CLIP)

ABRAMS:  I‘m thinking maybe he‘s an employee of a Michael Jackson memorabilia shop.  Marciella (ph) took the day off, didn‘t think her American boss was going to be quite as supportive. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Did you take today off? 

UNIDENTIFIED FEMALE:  Well did you tell your boss what you were taking the day off for? 

UNIDENTIFIED FEMALE:  Well, I‘ll keep that as a secret. 

(LAUGHTER)

(END VIDEO CLIP)

ABRAMS:  Yes, doing an interview.  Good call.  Richard says he and other Brits are certain that Jackson will be acquitted on all the charges. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  (INAUDIBLE) absolutely vindicated.  (INAUDIBLE)

(END VIDEO CLIP)

ABRAMS:  But another Brit, Annika (ph), didn‘t seem as confident. 

She‘s already attacking our system of justice. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  This trial is one of the most unjust trials that I‘ve ever seen and I‘m here to protest against that.  I don‘t agree with the way this has been handled.  So I wanted to be here to show—basically show my support for Michael and to show my disgust at the way this is happening. 

(END VIDEO CLIP)

ABRAMS:  Oh come on Annika (ph).  She designed her jacket and t-shirt to illustrate her anger with the prosecutors and the media. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Martin Bashir, Diane Dimond, Tom Sneddon and Gloria Allred.  And Michael was once asked in an interview if you were invisible for a day, what would you like to do, and he said I‘d like to kick some paparazzi (INAUDIBLE).  So I took his answer and kind of made my t-shirt. 

(END VIDEO CLIP)

ABRAMS:  Her countryman, Richard, couldn‘t quite explain his curious choice of courthouse attire, but cited Michael as an influence. 

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  We say, well, we‘re just bad dressers in England. 

(INAUDIBLE) but the white socks, that‘s all Michael. 

UNIDENTIFIED FEMALE:  Oh, white socks, I like them with the saddle shoes...

UNIDENTIFIED MALE:  Yes. 

UNIDENTIFIED MALE:  Yes, this is (INAUDIBLE).  It kind of rubs off on you after a while. 

(END VIDEO CLIP)

ABRAMS:  Every day the fans crowd up against the police constructed barricade—not that many of them—for Michael‘s arrival every morning and again for his departure in the afternoon.  So once Michael is acquitted, how will the fans be celebrating? 

(AUDIO GAP)

ABRAMS:  Well, what they said is it depends on what Michael is doing. 

Of course, maybe a bash at Neverland.  Coming up, your e-mails.

(COMMERCIAL BREAK)

ABRAMS:  Welcome back.  I‘ve had my say, now it‘s time for “Your Rebuttal”.  Yesterday, “The Washington Post” confirmed Mark Felt, number two man at the FBI in the ‘70‘s, was the source known as “Deep Throat”.  ABRAMS REPORT rebuttal comedian Jim Greene in San Francisco, “You and all of your journalism cronies are all wrong and should be ashamed telling the world that this Felt guy is “Deep Throat”.  I happen to know for a fact that “Deep Throat” was an incredible woman named Linda Lovelace.  You owe Ms. Lovelace an apology and you owe your viewers an apology for reporting as well to the world something that is so obviously wrong.”

(INAUDIBLE) Jim, it‘s true the source was named after the pornographic movie that she starred in with the same name.  Your e-mails abramsreport—one word -- @msnbc.com.  Usually, we have more substantive ones.   

All right.  If you have any Jackson questions, by the way, send them in the weeks to come.  We may have a lot of questions to answer as we wait for a verdict.  I‘m here.  I‘m staying.  That does it.  I‘ll be back here from Santa Maria for the closing arguments tomorrow.

END

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

Copy: 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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