Guest: Arlene Ellis-Schipper, Marcia Twitty, Claire Fierman, William Morris, Benvinda De Sousa, Paul Pfingst, Susan Filan, Mark Lunsford, Ben Ginsburg, Lucy Dalglish
DAN ABRAMS, HOST: Coming up, the chief prosecutor investigating Natalee Holloway disappearance says she could prosecute the case even if Natalee‘s body is never found.
(BEGIN VIDEOTAPE)
ABRAMS (voice-over): But Karin Janssen is still not convinced a crime was committed. The lawyer for Natalee‘s family joins us and we‘ll hear from some of Natalee‘s friends.
Plus...
UNIDENTIFIED MALE: Went out there one night and dug a hole and put her in it and buried her, (INAUDIBLE) plastic bag and she was still alive. I buried her alive.
ABRAMS: We‘ve got the tape of John Couey confessing to burying Jessica Lunsford alive, but many now believe a jury will never hear it, that a legal loop hole could keep it out. Jessica‘s father, Mark Lunsford, joins us.
And “TIME” magazine turns over a reporter‘s notes or they‘re going to about the leak of a CIA agent‘s name. Now that reporter probably won‘t have to go to jail. Many in the media are furious that “TIME” caved.
The program about justice starts now.
(END VIDEOTAPE)
ABRAMS: Hi everyone. First up on the docket tonight, as the Aruban police, the FBI, Dutch Marines, a search team from Texas, and hundreds of tourists, island locals and other volunteers continue to search for missing Alabama teen, Natalee Holloway, the chief prosecutor in Aruba, Karin Janssen, told The Associated Press that—quote—“it doesn‘t mean we can‘t prosecute without a body. It is difficult, but not impossible.”
Three suspects arrested on June the 9th remain in custody. Dutch teen Joran Van der Sloot, and brothers Deepak and Satish Kalpoe held on suspicion of homicide, conspiracy and kidnapping. Joran‘s father was arrested last week, released after three days in custody. Still in question is communication between Joran‘s father, Paul, as well as a particular meeting between Joran‘s parents and one of his friends.
(BEGIN VIDEO CLIP)
KARIN JANSSEN, CHIEF PROSECUTOR, ARUBA: The father and the mother
have asked a friend of Joran‘s, the suspect, the minor suspect, to come to
their home to tell them what he has explained to the police. And that is -
· well, I can say was an obstruction of the investigation.
(END VIDEO CLIP)
ABRAMS: Joining me now, Aruban attorney Arlene Ellis-Schipper. Thanks for coming back on the program. We appreciate it. All right, so it sounds like what the prosecutor is saying is that the advice that Joran‘s father gave to him, maybe to all three of them was an obstruction of the investigation. Is that against the law in Aruba, what she laid out in terms of what he did?
ARLENE ELLIS-SCHIPPER, ARUBAN ATTORNEY: Well basically obstruction of justice is a criminal offense in our criminal code. However, there is an exoneration for family members in the first degree. So in the case of Mr. Van der Sloot it would not apply.
ABRAMS: But I guess the question though is, is he allowed—I mean you heard her lay out the fact that the father and mother, for example, asked a friend of Joran‘s to come to their home to tell them what he said to police. Is that an obstruction of investigation? Is that a crime in Aruba?
ELLIS-SCHIPPER: Well, an obstruction of investigation...
ABRAMS: Right.
ELLIS-SCHIPPER: ... can be a crime.
ABRAMS: Right, but I‘m asking you if those facts...
(CROSSTALK)
ABRAMS: ... right, if those facts would constitute?
ELLIS-SCHIPPER: Well, to me questioning a friend just what he said to the police is not immediate obstruction. However, instructing certain—to say certain things, that can be an obstruction, yes.
ABRAMS: Right. All right, let me play another piece of sound from her talking about what she says that Joran‘s father did.
(BEGIN VIDEO CLIP)
JANSSEN: The father has spoken with those three suspects, and he said he give them some legal advice, but I think the advices were going further than that. They spoke about the situation that when there is no body, you don‘t have a case. And that was already in the first day after the disappearance.
(END VIDEO CLIP)
ABRAMS: Again Arlene, maybe I‘m not getting it, but it just doesn‘t seem to me like that is an obstruction of investigation in terms of being a crime. I mean basically what she should be saying is it sounded suspicious to us, but...
(CROSSTALK)
ABRAMS: ... not a crime, right?
ELLIS-SCHIPPER: I agree with you. It sounds suspicious and I think you have to bear in mind that Mr. Paul Van der Sloot was not arrested for obstruction of justice.
ABRAMS: Right.
ELLIS-SCHIPPER: That was not the case. He was arrested for reasonable suspicion of a crime. And frankly that did not hold up in front of the judge of instruction.
ABRAMS: Yes, I mean the crime was homicide. I mean the suspicion of homicide is what he was arrested for and yet, she‘s laying out a case that basically sounds like she didn‘t like what he was saying to the son.
ELLIS-SCHIPPER: No, what she is saying—I think what she is trying to explain is that it sounded suspicious and on the basis of that they started to look...
ABRAMS: Yes.
ELLIS-SCHIPPER: ... focus more on him.
ABRAMS: Yes. All right. Arlene Ellis-Schipper once again thank you for coming back on the program. Appreciate it.
ELLIS-SCHIPPER: You‘re welcome.
ABRAMS: Earlier today I spoke with Natalee‘s aunt, Marcia Twitty, and two of her friends (INAUDIBLE) Claire Fierman. Actually I spoke with William and Claire. They were in Aruba with Natalee. I began by asking Marcia about the wall behind her.
(BEGIN VIDEOTAPE)
MARCIA TWITTY, NATALEE HOLLOWAY‘S AUNT: We are standing in front of what we now call the prayer wall. It‘s the wall of hope and prayer that‘s for Natalee. We had a group of high school students from another high school create this entire wall for us, I guess at the beginning when we first found out that Natalee was missing, and they put this wall up. It is completely full of prayer comments, bible versus, notes to Natalee and Beth.
ABRAMS: Let me ask you, Claire, you were with Natalee in Aruba. How closely have you been following the investigation?
CLAIRE FIERMAN, NATALEE HOLLOWAY‘S FRIEND: I don‘t know it‘s kind of hard to watch the news. I just prefer to hear things from my friends and my family. It is hard to see things on TV because it is an unusual situation.
ABRAMS: Yes. Tell me, what was the last—when was the last time that you saw Natalee?
FIERMAN: I was with Natalee during the day, but I think we‘d rather keep this focused, if it‘s OK with you, on all the support that we are getting in Mountain Brook in Birmingham.
ABRAMS: We absolutely will keep that as the focus. Consistent with what Claire just said, give me a sense of what your last you know memory of seeing Natalee was, how was she doing? Was she happen, et cetera?
WILLIAM MORRIS, NATALEE HOLLOWAY‘S FRIEND: Yes. Well, we had such a great time on that trip. Being all together, being on the beach together, eating dinner together. The whole trip, and we all had so much fun. It was basically you know the time of our lives up until the next morning when we found out that she wasn‘t there. So I just—we had a great time together with Natalee and we‘re ready for her to come back and have some more.
ABRAMS: Yes and she was happy, right? I mean the last time you saw her the day—you saw her that day as well?
MORRIS: Yes, sir.
ABRAMS: And she was happy?
MORRIS: Yes, she was definitely happy.
ABRAMS: What kind of—we‘re talking about the support that you have all been getting. You all, I think, have been moving on with your lives to a certain degree and let me ask Claire this question. I know that you went back to the University of Alabama where I think Natalee would have been starting as well with you. What was that like?
FIERMAN: Of course it makes us so sad that she‘s not there, but it doesn‘t mean that we haven‘t lost hope because I‘m planning on Natalee coming to the University of Alabama with me and the rest of our friends.
ABRAMS: And is there a sense there of people waiting, talking about Natalee, talking about her actually coming to the school, et cetera?
FIERMAN: Yes, the school has been absolutely unbelievably helpful, wanted to know what they can do for Natalee‘s friends and family. Everyone, you know when we were at orientation we were asked you know by people you know if we had heard anything, if everything was OK. And I mean it‘s amazing to feel support in Tuscaloosa, Alabama. You know...
ABRAMS: Yes.
FIERMAN: ... everybody was wondering how we were.
ABRAMS: Marcia, how is the family holding up?
TWITTY: Every day, you know, it gets tough. I think we are doing as best as we can. We‘re holding up.
ABRAMS: It has been tough I assume for Beth down there. I mean we‘ve...
TWITTY: Yes. Yes, I talk to her about every day. And you know some days are better than others. Lately it has been pretty tough on her. I guess you can imagine. She is doing everything she can to continue. She‘s not going to give up. She is very determined and I guess you kind of hear that in her voice even more so now how determined she has become to find Natalee.
ABRAMS: Are you—what are you able to do from there to help in that effort? Is this—are you there really to say look, we‘re behind you, we‘re going to support you, look at all these hopes and prayers that are out there for you? Are you involved as well in the sort of day-to-day investigative aspects of the case?
TWITTY: I am not really keeping up with the intricate details of the investigation. You know, I‘m kind of like Claire and them. You know I‘ll talk to them and get information, but for the most part our job here has been, you know, to be with these kids, make sure they‘re OK, make sure they‘re sort of kind of putting their lives back together. And the past couple of weeks we‘ve been spending our time doing fundraising efforts. All the kids kind of got together about I guess last week and started doing fundraising initiatives and I think in the last week they‘ve all raised like over $40,000.
ABRAMS: And what is the money going towards?
TWITTY: So—the money is going toward the Natalee Holloway Trust to help with the recovery efforts that are going on. This is to help keep the family, friends, going down there, keeping—whatever Beth needs to keep the recovery and the search initiatives going, that‘s what this money is going to be available to help her do.
ABRAMS: William, final question to you. As you watch everything transpiring in Aruba from afar, you know you were there a month, do you get frustrated?
MORRIS: Well not frustrated, just—you‘ve just got to hold on and keep hoping. That‘s what we‘re all doing here. And we‘re all just using each other to do that. And it‘s things like this place and this wall and these fundraisers that help us keep doing that.
ABRAMS: Well, I think that you all represent the Holloway family and Natalee as well as anyone could. Thank you so much for taking the time. Good luck in this effort.
FIERMAN: Thank you.
ABRAMS: I can tell you I think you may be hearing from some of my viewers.
TWITTY: I hope so...
FIERMAN: Thank you.
MORRIS: Thank you.
TWITTY: Thanks.
(END VIDEOTAPE)
ABRAMS: And this week, Natalee‘s family started a letter writing campaign urging everyone to write to the Dutch ambassador to the U.S., asking they continue in the efforts to find Natalee. If you want to join, you can send your letters to The Royal Netherlands Embassy, 4200 Linnean Avenue, NW, Washington, 20008.
Joining me now is Benvinda De Sousa, attorney hired by Natalee‘s family in Aruba. Thank you so much for taking the time to come on the program. We appreciate it.
BENVINDA DE SOUSA, TWITTY FAMILY‘S ARUBAN ATTORNEY: Thank you for having me.
ABRAMS: What kind of...
DE SOUSA: Thank you for having me.
ABRAMS: What kind of advice can you give to the family? Are you really just there to explain to them how the system works or are you serving as an advocate saying to the prosecutor, we need to do this, we need to do that?
DE SOUSA: Well, I‘m—first of all—I have explained the system and I continue explaining the system to the family as the investigation progresses, the different phases of the investigation, but I do act as an advocate as well. I do speak daily to the prosecutor. We have input in the sense that not that we tell the prosecutor or the investigative authorities what to do, but we do—and whenever possible, we do have input on the legal standpoint, and we do brainstorm about certain aspects of the investigation, yes, we do.
ABRAMS: Let me let you listen to this piece of sound from Karin Janssen talking about the family and I want to ask you to respond.
(BEGIN VIDEO CLIP)
JANSSEN: Of course they are frustrated. I understand that completely. There are emotions, which you can expect in this situation. They are frustrated because they have to wait passively on the sidelines what is happening here. So I am speaking with them. I‘m explaining to them what we are doing and how we are doing. I give them as many information as I can give them.
(END VIDEO CLIP)
ABRAMS: Benvinda, is that an accurate assessment of the situation?
DE SOUSA: Yes, it is.
ABRAMS: In the sense that...
(CROSSTALK)
ABRAMS: ... is the prosecutor working closely with the family? Because you get a sense sometimes listening to Beth and some of the other family members there‘s a lot of frustration.
DE SOUSA: Of course there is frustration, but we have to understand what the frustration is about. The frustration is because the family is not getting any answers, specific answers as to where Natalee is. And that is completely understandable because these answers are still not available...
ABRAMS: Are you fighting for more...
(CROSSTALK)
ABRAMS: I apologize. Are you fighting for more information from them?
DE SOUSA: I don‘t have to fight for more information. I do have talks with the prosecution and I—we do get information. And I have to be very honest with you, we are getting quite a lot of information, more than is normal in this phase of investigation. Because we have made it clear to the prosecutor and to the investigation authorities that a family needs to be given more information and needs to be kept informed as to the progress. And we are getting that cooperation.
ABRAMS: Well that is very good to hear. Benvinda De Sousa, thank you. I know it was hard for you to get here and we really appreciate you taking the time to come on the program. Thanks a lot.
DE SOUSA: Thank you very much for having me.
ABRAMS: Coming up, John Couey‘s taped confession admitting he buried Jessica Lunsford alive, but a legal loop hole could prevent the jury from hearing it. Jessica‘s father joins us.
(COMMERCIAL BREAK)
(NEWS BREAK)
ABRAMS: We‘ve just gotten tapes of convicted sex offender John Couey, confessing to the rape and murder of 9-year-old Jessica Lunsford, but most believe a legal technicality will mean a jury will never hear it because at one point he asked for a lawyer. Now here‘s a part of what I should warn you is Couey‘s disturbing confession.
(BEGIN AUDIOTAPE)
DETECTIVE: OK and as soon as I walked into this room, you told me that you had done something to Jessica and she was underneath the back...
COUEY: I didn‘t mean to do it though...
DETECTIVE: OK. Johnny, listen to me. You‘re all right. Like I told you before...
COUEY: I‘m sick.
DETECTIVE: It‘s a disease, Johnny, and we‘re going to help you out with it.
(CROSSTALK)
COUEY: I‘ve never done it before in my life. I mean I...
DETECTIVE: It just happened, didn‘t it? Like I said, it went one step too far, didn‘t it? John, listen to me. I know it‘s going to be hard, so you got to tell me from the start what happened that night...
(CROSSTALK)
COUEY: We come off of that party.
DETECTIVE: Come off of that party?
COUEY: Yes, the one y‘all was talking about and we done some crack, my sister—I was going high and I was drunk. I went over there and took her out of her house.
DETECTIVE: Whose?
COUEY: Her house, her own...
DETECTIVE: Who? Who we talking about...
COUEY: Jessica‘s house.
DETECTIVE: How did you get into her house?
COUEY: The door was unlocked.
DETECTIVE: OK. So she gets up and she walks out of the house with you?
COUEY: Yes sir.
DETECTIVE: Where did you go?
COUEY: I take her to my house.
DETECTIVE: Into your bedroom?
COUEY: Yes sir.
DETECTIVE: She climbs up that ladder with you?
COUEY: Yes sir. Yes, she went in first.
DETECTIVE: OK.
COUEY: And then I went in behind her.
DETECTIVE: What happens next?
COUEY: Then I sexually assaulted her.
DETECTIVE: Did she know that we were out there looking for her?
COUEY: Yes, she knew. I told her y‘all were. You know I told her y‘all—I said they‘re out there looking for you and she seen it on TV too.
DETECTIVE: What happened next?
COUEY: I went out there one night and dug a hole and put her in it, buried her. I pushed. I put her in a plastic bag, plastic baggies.
DETECTIVE: Was she dead already?
COUEY: No, she was still alive. I buried her alive, like it‘s stupid, but she, she suffered.
(END AUDIOTAPE)
ABRAMS: I got to tell you we also cut out some of the more graphic and disturbing parts of this because it was just too much. The question then, the legal question, is will this seemingly truthful confession really be excluded from court? Most people are saying yes.
I am joined by two prosecutors who would fight long and hard to make sure, do what they could to get it admitted, former California prosecutor and MSNBC analyst Paul Pfingst and former Connecticut prosecutor Susan Filan. All right, before we get into the legal stuff on this, let me ask you point blank, Paul, do you think that this is actually going to be excluded?
PAUL PFINGST, MSNBC LEGAL ANALYST: It very well could be. I think the odds are in favor of exclusion. There is some information we still don‘t quite know that has to be cleared up. But right now, the odds are in favor of a court excluding it.
ABRAMS: Wow. Yes. Susan, do you agree?
SUSAN FILAN, MSNBC LEGAL ANALYST: I do. Sadly Dan, there is a terrible mistake made by law enforcement in this case. It‘s a pretty bright line rule and I would hit the books very, very hard to try some clever, creative way to keep this confession into court, but as I have been able to see today, I think it‘s a favorable motion on behalf of the defense.
ABRAMS: Here‘s what happened. All right. Early on in the investigation, before he sort of laid it all out, they asked him about taking a lie detector test and here‘s exactly where the problem occurred. All right.
Detective: John, would you take a lie detector test for us?
Couey: I guess I‘m just—I want a lawyer. You know...
Hang on, hang on John. All right. All right. Hang on, I‘m just asking.
If that‘s what you want to do, but I mean you know...
I‘m just asking would you—I‘m not saying do it now. I‘m saying would you...
I said I would. I just want to talk to a lawyer.
OK.
I want a lawyer here present. I want to talk to a lawyer because I mean if people trying to accuse me something I didn‘t do, I didn‘t do it. I ain‘t, you know...
OK. So if we do, if we do...
I don‘t know. I just said I want to talk to a lawyer to get this thing straight.
OK. Hang on. Hang on. Hang on. So if we were to do a lie detector test, you‘d want a lawyer—get a lawyer for that.
I‘d want to talk to a lawyer first.
You want to talk to a lawyer first?
Yes sir.
Are you OK with talking to us still now about stuff?
So Paul, the law says that even though—I mean basically what he was saying is before I take a lie detector test I want to talk to a lawyer. What the police seem to have done is sort of change the subject and said all right, we will come back to that lie detector test and we want to move on to a different topic, and then Couey willingly continues the conversation. Isn‘t there something problematic about a situation where a guy asks for a lawyer in that context and they say OK, OK, then they change the subject and he willingly keeps talking to them?
PFINGST: The rule is that when a defendant invokes the Fifth Amendment right, interrogation must cease until the attorney gets there. The only exception is if the defendant himself initiates further conversation without prodding with the investigators, which does not appear to be the case here. So once he invoked what the detectives here tried to do is limit his demand for an attorney to only the polygraph issue. And you can see the way they are doing it is very clever and it‘s certainly the right tactic for the police to try to do. But I think the number of times that he invoked and said I want an attorney, required that the interrogation stop and an attorney be provided.
ABRAMS: But Susan, this means that the entire confession has to get thrown out, even if it was the next day, et cetera?
FILAN: Well here‘s the thing. The reason why we have to be careful about confessions is because in order for them to be admissible before a jury they have to be knowing, voluntary, intelligent waivers of that right. Now, if I were a prosecutor in this case, I would try to argue that he didn‘t stop the interrogation, he didn‘t say I won‘t talk to you anymore.
He seemed willing to talk. And I understand that—Paul stated the rule perfectly and...
ABRAMS: Yes.
FILAN: ... what I‘m making is an argument, but yes he does talk again the next day. He‘s re-Mirandized the next day. The statement begins we‘ve Mirandized you three times now, right? He says right. Well we‘re going to Mirandize you one more time just to be sure. Right.
So now that‘s four Miranda warnings. That‘s a willing waiver. So day two when the details really come out...
ABRAMS: Right.
FILAN: ... about what he did, he could be said to have knowingly voluntarily and intelligently waived.
ABRAMS: Yes.
FILAN: The problem is the day before when he invoked his right it really should have stopped. What I would argue is that next day, perhaps, he did reinitiate...
ABRAMS: Right...
FILAN: ... by being willing to talk...
ABRAMS: Here‘s a Supreme Court case...
FILAN: ... so there‘s a hope...
ABRAMS: ... on this. It says...
FILAN: There is a ray of hope.
ABRAMS: ... an accused having expressed a desire to deal with the police only through counsel is not subject to further interrogation by the authorities until counsel has been made available to him unless the accused himself initiates further communication, exchanges or conversations with the police.
Bottom line is Paul and I‘ll say this later in the program I think that the test should be the totality of the circumstances and not these bright-line rule that says you mention the word lawyer and anything that happens after that gets excluded.
PFINGST: This is the type of case that goes through the legal system and ends up at the doorstep of the United States Supreme Court.
ABRAMS: Yes.
PFINGST: And generally the United States Supreme Court has taken a very limited view of Miranda and cut it down. So if this were to get to the Supreme Court...
ABRAMS: And it will...
PFINGST: ... it might exactly move that way.
ABRAMS: Marilyn v. Blake (ph)...
PFINGST: Yes.
ABRAMS: ... is the case that they‘re considering that may change everything and I certainly hope that they take it. Paul Pfingst, Susan Filan, thanks a lot.
Coming up, Jessica Lunsford‘s father, Mark, joins us.
Plus, “TIME” magazine gives in, agreeing to comply with a court order to give up a reporter‘s notes in an effort to keep him out of jail. Some in the media are furious. I think in the end I don‘t know that “TIME” had a choice here. Coming up.
(COMMERCIAL BREAK)
ABRAMS: Coming up, a convicted sex offender confesses to brutally murdering Jessica Lunsford, the question, will a jury ever hear his confession? Mark Lunsford, Jessica‘s father, joins us next. First the headlines.
(NEWS BREAK)
(BEGIN VIDEO CLIP)
MARK LUNSFORD, JESSICA LUNSFORD‘S FATHER: What would it take to change your mind? For one of your kids to be murdered? It makes no sense to block any efforts to make tougher laws on sex offenders and to save our children. It just doesn‘t make any sense.
(END VIDEO CLIP)
ABRAMS: We‘ve just listened to John Couey confessed to kidnapping, molesting, killing that man‘s 9-year-old daughter. Jessica Lunsford‘s body discovered less than four months ago buried in a convicted sex offender‘s yard. Since then her father has been working night and day to try and get laws passed to keep other kids from meeting the same fate as his father.
Now we intentionally separated Mark from the previous segment so he would not have to hear Couey‘s confession and Mark Lunsford joins us now. Thank you so much for taking the time. We appreciate it. Before we talk about...
LUNSFORD: Thank you Dan.
ABRAMS: ... the good fight that you are putting up, how are you holding up?
LUNSFORD: I think I‘m doing the best I can. I mean you know, I just want to see things happen. I‘m short on patience. But it seems to be working out real good.
ABRAMS: We did a segment before which was laying out sort of the legal issues surrounding whether his confession could be excluded and a lot of lawyers are saying they think it could get thrown out of court. What are the police and prosecutors telling you about whether they think that confession is going to get thrown out?
LUNSFORD: Well, the prosecutors told me about that, you know, warned
me about this, oh, gosh it‘s been a month and a half ago if not longer. It
seems that long. The sheriff—I talked to the sheriff about it, he said
· he informed me—he told me to rest assured, confession or no confession he‘s got enough to prosecute Couey and put him away for the rest of his life.
ABRAMS: When you heard that the confession might be excluded, was your first reaction just come on, you‘ve got to be kidding me or did they explain it to you in the context of saying don‘t worry we‘ve got this taken care of?
LUNSFORD: Well I mean the prosecutors toll me about it. They warned me that, you know, there are certain ways that things have to be done and that they could put up a fight over this, but you know they didn‘t really make me feel worried about it. They just wanted me to know about it and then when I talked to the sheriff, you know like I said he told me, you know, Mark, we‘ve got enough to put Couey away without the confession.
ABRAMS: And you know in defense of the sheriffs, you know, the bottom line is if they had given him a lawyer immediately they might not have ever gotten a confession and we might never have heard from him specifically those words that he did it, so sort of one of the situations...
LUNSFORD: Right.
ABRAMS: ... that is tough to call. What have you been up to? Tell me about the fight you‘ve been putting up and it seems like you‘ve been making some progress.
LUNSFORD: Yes, I spent the last week, the whole week in Washington. Well actually Monday I was in New York with Senator Golden for reforms on Megan‘s law. And then I went to Washington from there and stayed there the rest of the week lobbying for Mark Foley‘s bill, Ted Poe‘s bill, Ginny Brown-Waite, you know. And then (INAUDIBLE) the chairman, the leader of this, I can‘t thank him enough, has put together a bill and...
(CROSSTALK)
LUNSFORD: ... gotten it too.
ABRAMS: That‘s the Children‘s Safety Act of 2005?
LUNSFORD: Yes, yes. And I‘ve been contacted by the Senate side, by you know, and they let me know that you know they put together something for, you know, it has to have money to pay for it and they‘ve put something together for that. So everybody is trying to do everything they can and I‘m just—I am glad. I‘m just glad. I just wish it could happen faster.
ABRAMS: You realize what an impact you are having, right? I mean you realize how important it is that you are involved in this?
LUNSFORD: I do, Dan, and that‘s why I am trying to stay so busy with it because I mean the iron is only going to stay hot for so long and people are only going to listen to me for so long. So I have to do everything I can as quick as I can and I mean I‘m doing it for my grandkids, for your kids, everybody‘s kids. It‘s all about the kids.
ABRAMS: Well you‘re a smart guy, you‘re a committed guy, and you know I think people around this country respect and look up to you for all that you are doing. Mark Lunsford, thanks a lot.
LUNSFORD: Well thank you.
ABRAMS: All right. Coming up, “TIME” magazine giving up reporter Matthew Cooper‘s notes. He‘ll probably avoid jail time. What happens to his sources now?
And to those who ask, why does the media always report so much information during a criminal investigation? Well, I have an answer, and it relates to what Mark Lunsford was just talking about. 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, “TIME” magazine caves deciding to give up reporter Matthew Cooper‘s notes and maybe even the source who leaked the CIA agent‘s name to him. Cooper probably won‘t go to jail, but is it the right move? We‘ll debate...
(COMMERCIAL BREAK)
(NEWS BREAK)
(BEGIN VIDEO CLIP)
MATTHEW COOPER, “TIME” MAGAZINE REPORTER: On balance I think I‘d prefer they not turn over the documents. But “TIME” is—can make that decision for itself and I think it‘s, you know, it‘s an honorable one whatever they decide.
(END VIDEO CLIP)
ABRAMS: And “TIME” magazine has decided to surrender reporter Matt Cooper‘s notes rather than pay huge fines and probably see him go to jail for violating a court order. A court order, which instructed him to reveal his source in the investigation into who leaked the named of CIA agent, Valerie Plame. Plame was alleged outed by two administration officials in a story by syndicated columnist Robert Novak. But somehow Novak is in the clear while Cooper and “The New York Times” reporter Judith Miller, who never even published the name, are looking at jail time after the U.S. Supreme Court refused to hear the case.
At a hearing Wednesday, the judge said—quote—“The time has come. If people got to decide which court orders they wanted to obey, we would have anarchy.”
“TIME‘s” editor-in-chief Norman Pearlstine said as much as I‘m a staunch defender of editorial independence, I don‘t believe there‘s anything in the Constitution that says journalists are above the law. The alternative to complying would be a kind of anarchy.
“New York Times” publisher Arthur Sulzberger says he was deeply disappointed in “TIME‘s” decision and says the paper will now focus on supporting Judith Miller. And I should say my dad is representing Judith Miller, but then again I don‘t always agree with my dad.
“My Take”—Times Corporation probably did the only thing it can do, I think, which is to cave in order to avoid the huge fines. I believe they probably had to abide by the court order, but this entire investigation is a travesty of justice. It now looks like the only person who will serve time is not the person who first outed Plame, not the second person to report her name, probably not anyone who leaked the name but instead Judith Miller who never even reported the name. I believe the prosecutor is in the end abusing his discretion by demanding jail time for her.
Lucy Dalglish is executive director of the Reporters Committee for Freedom of the Press and Ben Ginsburg has been general counsel to the Republican National Committee. Before becoming a lawyer he worked as a newspaper reporter for five years.
All right, so Ben, isn‘t this a prosecutor—apart from the issue of the court order. “TIME” is going to abide by the court order, but isn‘t this a prosecutor who is creating a result, which is absurd here?
BEN GINSBURG, FORMER RNC GENERAL COUNSEL: Well I‘m not sure I agree with that, Dan. I think the prosecutor is charged with finding out if there was a crime. One of the tenants of law and it‘s been well established law from the Supreme Court is that in an instance like this, where a grand jury is seeking information in a criminal case, reporters don‘t have a privilege to protect that information. Now you can argue the wisdom of the policy of having a federal shield law, but there is none. The prosecutor—if you recall when this case started, the human cries especially from the media to find out whoever the leaker was, was loud and great.
(CROSSTALK)
GINSBURG: The prosecutor is charged with that. He‘s...
ABRAMS: ... such a cop out, blaming the media. It is. It has nothing to do with the issue as to who called for what. I mean the notion that somehow this administration caved into the media, Ben, come on.
GINSBURG: No, no, no, that‘s not what I am saying. The prosecutor has a job to find out if there was a crime that was committed. And the principle here is frankly is any one above the law in terms of providing information that a grand jury believes it needs to do its job? And that‘s well settled law from the Supreme Court, Dan.
ABRAMS: Yes, but see I‘m still talking about the prosecutor‘s discretion here. Lucy, bottom line, do you think “TIME” magazine did the wrong thing caving?
LUCY DALGLISH, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS: Oh dear. You know I‘ve been struggling with this issue all day long. This has been a very bleak, bleak day for everybody, you know. I think when you are faced with a decision like that, it is—“TIME” did the honorable thing by fighting it as far as they could through the Supreme Court. I know that Matt Cooper did not want to give up his sources.
“TIME” fought it. They made a decision, an honorable decision, to follow a court order. I think it is also an honorable decision to respectfully say, Your Honor, I am not above the law, but I am not going to comply and I respectfully take my punishment. Please put me in jail for civil contempt. These are very, very difficult issues.
And what I hope we don‘t end up with here is the typical journalism habit of navel gazing and arguing you know whose side are you on, “TIME” magazine or “The New York Times”? I really want all of us—everybody in the journalism community to number one, stick together and realize that this is an investigation that is completely run amuck. This has gotten so far beyond was there a crime committed; I think it‘s now focusing on some kind of a weird perjury investigation. And I also think we need to unify and spend more time and energy getting a federal shield law passed.
ABRAMS: I‘m upset with Robert Novak here. Let me quote from what he said, all right, and I‘m sorry that we‘re not unifying on this and that I‘m not sort of welcoming Robert Novak in, but I think that he is a big part of the problem here. Here is what he said in an interview.
Well they‘re not going to jail because of me. Whether I answer questions or not, it has nothing to do with that. That‘s very ridiculous to think that because I am the cause of their going to jail. I don‘t think they should be going to jail.
The problem is, Ben, if he would give some information about what he did or didn‘t say, even if he doesn‘t disclose exactly who his source is, forget about that. He should just give people a sense of I either testified, I didn‘t testify, I took the Fifth. Because then the other reporters would be able to argue look, you may have exhausted all your remedies. It would add them a legal argument for him to say hey don‘t blame me for anything, to me is disingenuous.
GINSBURG: Well it seems to me that is precisely the media gazing—media navel gazing that Lucy was talking about.
ABRAMS: I know.
GINSBURG: I mean the principle here is that all individuals in this country have an obligation under the law to give information needed by a grand jury. And why does “The New York Times” think it‘s not subject to that while “TIME” does. If you are a lawyer or a doctor or a priest or an accountant or even a spouse, there will be instances where you have to give up information to the grand jury despite having privileges in that matter. I mean that‘s the settled law. So where does “The New York Times”...
ABRAMS: Yes.
GINSBURG: ... manage to get away from that when “TIME” I think rightfully sees that obligation.
ABRAMS: Lucy, what do you think about my criticism of Novak?
DALGLISH: You know I really hate to pick on a journalist, but I want to know what he did. I want to know what he said. I want—I don‘t necessarily want to know who his source is, but I would really like to know whether or not he testified. I would like to know whether or not these two reporters, particularly Judy who never even wrote a story, is ending up as some sort of a sacrificial lamb for the media.
ABRAMS: Yes.
DALGLISH: I really want to know whether or not there is any—this investigation has been going on for almost two years. I don‘t think there is a criminal case behind it. I think we are now on some really wild...
ABRAMS: My prediction...
DALGLISH: ... perjury...
ABRAMS: My prediction is Judy Miller will be the only person to go to jail in connection with this case and she never reported the name. If that‘s not...
(CROSSTALK)
ABRAMS: ... an abuse of the system I don‘t know what is.
GINSBURG: But Dan, if you‘re a lawyer or a doctor or a priest, you don‘t publish names...
(CROSSTALK)
GINSBURG: ... but you have an obligation to give that information...
ABRAMS: And the prosecutor has discretion as they do in every case to try to avoid an absurd result.
DALGLISH: You know...
GINSBURG: Well, so you‘re second guessing a prosecutor...
ABRAMS: I sure am.
DALGLISH: Well you see what‘s difficult about this one is OK, so now “TIME” magazine turns over you know...
ABRAMS: Quickly...
DALGLISH: ... e-mails, whatever, are you telling me that the prosecutor doesn‘t know who his sources are and they‘re still going to make Judy go to jail? That‘s ridiculous.
ABRAMS: Yes. All right, Lucy Dalglish, Ben Ginsburg, good debate.
Thanks a lot.
Coming up, some have said the media should wait until a defendant gets into court to report incriminating evidence against him. I say John Couey who admitted murdering Jessica Lunsford is exactly the reason we can‘t and shouldn‘t. It‘s my “Closing Argument”.
(COMMERCIAL BREAK)
ABRAMS: My “Closing Argument”—to all those who ask why does the media always need to report so much information during a criminal investigation? Why can‘t reporters just wait for the information to come out in court at the trial? Let me present exhibit a. John Couey, a sick, twisted pervert who confessed to kidnapping, raping and then burying 9-year-old Jessica Lunsford alive in his yard. Now it turns out a legal technicality could mean Couey‘s murder confession gets thrown out. It could even mean Couey walks.
Don‘t we have an obligation to get that information out as quickly as possible? If he is released, the public doesn‘t have a right to know how dangerous a guy this is? That he got off even though there‘s nothing to suggest his confession wasn‘t truthful? When he was asked to take a lie detector test, he said he wanted to talk to a lawyer, then agreed to keep talking after they changed the subject.
Sure, the police should have known better, but that‘s for the legal system to sort out. The public deserves to know Couey freely admitted to keeping Jessica alive for three days, raping her numerous times, finally burying her alive in garbage bags with a stuffed animal in her arms. The reporting on this has kept the pressure on the Florida authorities, raised public awareness about the systemic problems plaguing states‘ efforts to monitor convicted sex offenders like Couey.
After he was arrested, “The Miami Herald” reported that Florida had lost track of more than 1,800 registered sex offenders. The Florida state legislature quickly passed the Jessica Lunsford Act, which requires violent sex offenders who prey on kids under 12 get tougher punishments and be monitored with GPS bracelets once they get out. The U.S. Congress proposed a new federal sex offender registration and notification act, which would tougher penalties nationwide for sex offenders. So we the media should have waited to see if Couey‘s murder confession is going to be admitted in court? No way.
Coming up, your e-mail on John Couey‘s confession and the police mistakes, coming up.
(COMMERCIAL BREAK)
ABRAMS: I‘ve had my say, now it‘s time for “Your Rebuttal”. Convicted sex offender John Couey confessed to burying 9-year-old Jessica Lunsford alive, told police where to find the body. But Couey said six times he wanted to talk to an attorney early on in the questioning. Police didn‘t provide him with one, which means his entire confession may be thrown out. I said the public is going to hate the legal system more than ever if that happens.
John Anderson writes, “This is the detective‘s fault, pure and simple. What they did was just plain wrong. I sure don‘t want to see this monster walk, but we have to live by our system and those rules are there for a very good reason, to protect the innocent and overly aggressive police practices.”
From Trappe, Maryland, Matt Spence, “The only thing we should be up in arms about is the apparent incompetence and disregard for the law on the part of the police in that case. Only those who are uninformed on the specifics of the case will be calling for reform of the judicial system.”
Oh really, Matt? I don‘t think I‘m uninformed. I‘d like to see the rules changed in this regard. I‘d rather see courts evaluate the totality of the circumstances when it comes to a confession rather than a bright line rule that says the suspect uses the word lawyer and the questioning is not immediately stopped, the entire confession gets thrown out. And mark my words, I predict that within five years, that will be the law of the land in part because of cases like Couey‘s.
Steve and Karen Kornman in Tucson, Arizona asks, “I know John Couey asked for a lawyer, but why did he continue to talk? Can a judge take this into consideration before deciding whether or not the throw out the confession.”
Yes, but right now, I fear prosecutors have an up-hill battle here. Tuesday night, we followed up on a story of a Pakistani woman ordered gang raped as retribution because her 12-year-old brother supposedly had sex with a woman from a higher social class. She was invited to the United States to speak about her horrific experience in Pakistan. Her government won‘t let her, fearing they‘d bad mouth the country. Unbelievable and yet, it seems we‘re the only ones who are willing to stay on top of this story.
Maria Morrissey, “Thanks for covering a story no one else seems to find noteworthy. Hopefully such bold journalism will serve to awaken the world to this and other crimes against humanity, stories which really deserve coverage.” Thanks Maria.
“OH PLEAs!”—forget about the spilled milk in aisle five. In a grocery store in Devils Lake, North Dakota, Clifford Matson (ph) apparently entered the store drunk. You‘re allowed to shop drunk. The problem started when he climbed into an electric powered cart. Suddenly he was drunk driving, sort of. He allegedly started aiming at other customers, trying to knock them down like bowling pins. Matson (ph) was charged with disorderly conduct, a misdemeanor with a maximum penalty of 30 days in jail, a $500 fine. Drunk driving taken to a new level.
That does it for us tonight. Coming up next, “HARDBALL” with Chris Matthews. Wow, we have time left over. Racing through those e-mails. See you tomorrow.
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