updated 9/14/2005 10:54:58 AM ET 2005-09-14T14:54:58

Guests: Charles Foti, Alan Dershowitz, Jonathan Turley, Wendy Long, Frank

Minyard, Frank Holthaus, C.L. Williams

DAN ABRAMS, HOST:  We‘ve got breaking news to report.  Louisiana authorities have just charged the owners of a nursing home with 34 counts of negligent homicide.

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  The victims allegedly left to die by nursing home administrators who didn‘t evacuate ahead of Katrina.  This as the death toll in Louisiana rises above 400.

And...

UNIDENTIFIED FEMALE:  I‘m stuck in the attic.  Me and my little sister here and my mom, and we got water in the whole house.

ABRAMS:  For the first time, we hear the 911 calls around the time the floodwaters begin to rise in New Orleans.

Plus, senators grill the man likely to be chief justice of the Supreme Court for decades. John Roberts says Roe v. Wade is settled precedent.  OK, but exactly what does that mean?  Does it mean he accepts it?

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  Breaking news to report to you.  In the last hour, we have learned that there have been charges filed of negligent homicide in connection with 34 nursing home deaths in Louisiana.  The owners of a nursing home where those people died have been charged.  Now in a moment, we are expecting to have an exclusive interview with the attorney general who has just filed those charges.  Here‘s what he said only moments ago. 

(BEGIN VIDEO CLIP)

CHARLES C. FOTI, JR., LOUISIANA ATTORNEY GENERAL:  We prepared an arrest warrant that was signed by a judge in St. Bernard Parish.  We talked to their lawyer and today they have turned themselves in and are currently incarcerated while awaiting for their bond procedures will happen at East Baton Rouge Parish Jail.  They‘re charged with 34 counts of voluntary—involuntary homicide.  We feel we have criminal negligence where they did not follow the standard of care that a reasonable person would follow in a similar circumstance. 

The pathetic thing is in this case, once again, is that they were asked if they wanted to move them.  They refused to move them.  They had a contract to move them.  They did not.  They were warned repeatedly, both by the media and by the St. Bernard Parish emergency preparation people that the storm was coming.  In effect, they resulted—I think that their action resulted in the death of  -- their inaction resulted in the death of these people. 

(END VIDEO CLIP)

ABRAMS:  Joining me now is Louisiana Attorney General Charles Foti. 

Attorney General, thanks very much for taking the time.  Appreciate it.  All right, so we just heard you there on tape, laying out the evidence, the charges.  Give us a sense of what it is that these nursing home owners did or didn‘t do that makes it such that they‘re different from other people who may have failed to act, other people who may have failed to move, et cetera.  What made this rise to the level of a criminal charge?

FOTI:  Well, this is negligent homicide.  On the thing it said involuntary.  It‘s really negligent homicide.  They had a duty and a standard of care to people that could not care for themselves.  If you or I decided we are going to stay, we do it of our own free will.  We could have gone, but we decided not to do.  The people in the nursing home don‘t have that choice unless their family members are able to come and get them, if they have family members.  Then they are really at the mercy of the people who are running the institution who are charged with the duty to protect them. 

ABRAMS:  Give us a sense of what it is that they did do, what it is that they didn‘t do and the timing of it.  I mean are we talking about people who literally never made an effort to evacuate these people and then fled town themselves?

FOTI:  What we‘re talking about is they were warned both by the media, by St. Bernard Office of Emergency Preparedness.  We had people that called them and alleged they had buses ready to move them.  They did not move them.  They had a contract with the Candian (ph) ambulance to move people.  They never called them and they never tried—to the best of our knowledge, they never tried to move. 

(CROSSTALK)

FOTI:  From the standpoint that until after the storm and after the storm where we have 34 dead people, then as best of my knowledge, both parties were there at the time. 

ABRAMS:  Now, to play devil‘s advocate, I mean we‘ve heard some people say, well you know how could we have predicted this?  No one expected that the storm was going to be quite this bad.  No one knew that the floods would happen.  Can that sort of defense apply to the people at the nursing home?

FOTI:  St. Bernard Parish has flooded before.  St. Bernard issued both a voluntary evacuation and a mandatory evacuation before the storm hit.  Once they issue a mandatory evacuation, the standard of care would be that you would evacuate these people, whether you wanted to or not, because you are responsible for their lives.  There are indications they evacuated in another storm that didn‘t hit, so that may have given them some grounds to feel this is not going to happen.  But if you looked at the hurricane chart and if you listened to the hurricane people, meteorologists that predicted that storm almost exactly followed the track it was supposed to. 

St. Bernard and Plaquemines Parish are very vulnerable to high water at anytime.  Well you talked about the wall of water that was coming through, they knew or should have known because of their duty to these other people, not to themselves, but to these people they had in their care providing medical care who could not take care of themselves.  They should have moved them.

ABRAMS:  Now there are people now behind bars as a result of these charges.  How many people have been charged?

FOTI:  Two parties, Mable Mangano and her husband Salvador Mangano.  Mabel, they‘re both co owners and Mable is also a licensed home administrator.

ABRAMS:  Under Louisiana law, how much time are they facing if they‘re convicted?

FOTI:  Because of this, we never thought about the time.  We‘re not even looking to...

ABRAMS:  Right.

FOTI:  ... we weren‘t looking at the time.  We‘re looking at making sure we had enough evidence to have probable cause.  We took it a step further, rather than just arrest them, we went to a judge at St. Bernard Parish, gave him the application for an arrest warrant.  He read the application for arrest warrant and signed such arrest warrant.  The two parties charged turned themselves in today.

Now once again, as a lawyer, you know I have to advise that this is a charge.  People are only charged.  That a jury, a court will determine whether or not there is sufficient evidence to convict.

ABRAMS:  There has been a hospital where 40-plus people were found dead.  The hospital—this is a separate place—the hospital issued a statement saying look, those people died in the days after the storm.  They didn‘t die from drowning.  There was nothing we could do.  We did our best.  Is it possible that any of these people in the nursing home died in the aftermath rather than drowning and would that change anything with regard to the charges?

FOTI:  Well let me—you‘re talking about the hospital.  We have opened an investigation into that and some time in the future we will tell you whether or not we feel there‘s any potential, either civil action or criminal action should be taken.  To the best of our timing, those people died as a result of the storm in the floodwaters that came right after the storm.

ABRAMS:  And I‘m sorry, you‘re talking there about the hospital or the nursing home?

FOTI:  No, I‘m talking about the nursing home.  There‘s two separate -

there‘s a --  there is a hospital where there‘s a difference of whether or not there was a party of 20, which doesn‘t make a difference, but that‘s not even verified at the present time.  We‘re investigating that.  In the nursing home, those people died as a result of the floodwaters...

ABRAMS:  All of them...

(CROSSTALK)

ABRAMS:  All of them.

FOTI:  All of them.  Yes sir. 

ABRAMS:  All right.  Mr. Attorney General, thank you for taking the time to come on the program.

FOTI:  Thank you.

ABRAMS:  We appreciate it.

FOTI:  Thank you very much.

ABRAMS:  All right, we‘ve got two of the great legal minds with us.  They were here to talk about John Roberts, but these are—this is an interesting legal question—Professor Jonathan Turley from George Washington Law School and an NBC legal analyst and famous Alan Dershowitz from Harvard Law School, whose book we will introduce in a moment.  He‘s just written another book on how to resolve the Arab-Israeli conflict, “The Case for Peace: How The Arab-Israeli Conflict Can Be Resolved”.

All right, Alan, what do you make of this?  I mean this is an unusual charge.

ALAN DERSHOWITZ, HARVARD LAW PROFESSOR:  It‘s not so unusual.

ABRAMS:  Really?

DERSHOWITZ:  Whenever you have a major disaster, there is always going to be some scapegoating.  There are dead people.  They died as the result of negligence.  Somebody has to be held responsible.  The question is, is it scapegoating in this case or is there a plausible case for actual criminal prosecution?  The attorney general used the term negligence and then he talked about should have known instead of did know.

Those are traditionally not the basis for criminal charges.  Usually it‘s...

ABRAMS:  Right.

DERSHOWITZ:  ... gross negligence.  Usually there has to be amends rea (ph) requirement.  But the more people die and the more the public demands some response, the more likely it‘s going to be that prosecutors, ambitious or often elected prosecutors, will move the goal post a little bit and try to criminalize that which is despicable but may not be actually criminal.  So I think we have to look at this with a great deal of caution.

ABRAMS:  And Jonathan, I think that the other concern is that there are going to be a lot of people to blame in the context of this story and the fact that other people died because they didn‘t get fair warning, that various public officials didn‘t do this or didn‘t do that.  Does it make sense in this context then that these nursing home owners are being held criminally responsible?

JONATHAN TURLEY, CONSTITUTIONAL LAW PROFESSOR:  It actually does make sense.  You know, usually government officials cannot be prosecuted for the negligent carrying out of discretionary duties.  You‘re allowed to be an incredibly negligent government official and not be personally charged.

These people had a contractual obligation to the nursing home residents, but they also had a separate legal obligation.  I used to live in New Orleans.  Any of us that lived in New Orleans knows how fast flooding can occur.  I was first welcomed to New Orleans by watching my car float down Magazine Street. 

So even though this is an act of God, it is the type of flood that everyone who lives in New Orleans can anticipate.  I think that this sounds like a fairly straightforward negligent case.  Remember, we prosecute people all the time, drunk drivers, criminally for what amounts to negligent conduct.  So I don‘t think that this is out of the ordinary. 

ABRAMS:  Alan, what if the nursing home owners say look, all right.  You‘re right.  We didn‘t do enough before this all happened, but afterwards we were calling for help.  We knew we needed help and no one came.  Is that a defense? 

DERSHOWITZ:  Well, you know, it‘s a defense emotionally in front of a jury, although I don‘t think there‘s going to be any realistic defense here because the jury is going to be looking for blood.  The key question is this.  If in fact nobody had died, would these people have been prosecuted for doing exactly the same thing? 

The people died as a result of—Jonathan calls it an act of God. 

I‘ll call it an act of the intelligent designer, but—or whoever, nature

but the question is, if nobody had died, if by complete luck and fortuity, the storm had swerved in a different direction, did they do enough bad things, willfully negligent things that they would have been liable for some kind of criminal prosecution, even without death.  Now Jonathan is absolutely right.  Criminal negligent does apply to...

ABRAMS:  Yes.

DERSHOWITZ:  ... automobile cases and many criminal law scholars don‘t think it should.  And so this is a case on the borderline, under Louisiana law.  There may be a basis for prosecution...

ABRAMS:  Yes.

DERSHOWITZ:  ... but I think we ought to keep our eye on whether or not this is scapegoating.

ABRAMS:  Very quickly, Jonathan, final 30 seconds.  Defense, if they say look, we yelled.  We screamed.  No one helped us after the fact.

TURLEY:  Well you know I think that when you look at the obligation here, we‘re not talking about the flooding of a basement.  We‘re talking about people who are not mobile.  You have an added requirement to be prophylactic, to be—to take those measures that you need to take.  And in this case I think it really does scream out for investigation, if not criminal charges.

ABRAMS:  All right.  Well there are criminal charges have been filed.  Alan Dershowitz and Jonathan Turley are going to stick around because coming up, we‘re going to be talking about that man, John Roberts, nominee for chief justice of the United States getting grilled today by some senators, getting propped up by others.  Of course it depends on what party you‘re with.  Were the questions fair?  Did we learn anything about Judge Roberts‘ decision making and his—how he might decide cases in the future? 

And the death toll rises to over 400 in Louisiana.  I‘ll talk with Orleans Parish—a coroner, the man in charge of finding out just how the Katrina victims died.  We‘ll talk to him about these charges that have just been filed in this nursing home case. 

Plus, police think there are an estimated 4,000 convicted sex offenders now living in shelters in Texas.  What can they do—what are they doing to keep them away from children?  Coming up.

(COMMERCIAL BREAK)

ABRAMS:  Back to our other top story—for the first time, senators get a chance to question, prop up, or attack Supreme Court Chief Justice-nominee John Roberts.  Some Democrats on the Senate Judiciary Committee chose attack. 

(BEGIN VIDEO CLIP)

SEN. EDWARD KENNEDY (D), MASSACHUSETTS:  Do you still believe today that it is too onerous for the government to require universities that accept tuition payments from students who rely on federal grants and loans not to discriminate in any of their programs or activities? 

JUDGE JOHN ROBERTS, SUPREME COURT NOMINEE:  No, senator, and I did not back then.  You have not accurately represented my position.

KENNEDY:  These are your words. 

UNIDENTIFIED MALE:  Let him finish his answer...

(CROSSTALK)

UNIDENTIFIED MALE:  Wait a minute.  Wait a minute. 

(END VIDEO CLIP)

ABRAMS:  Committee Chairman Arlen Specter mediating there.  Specter, a pro-choice Republican, attempted to get Roberts on the record, affirming that Roe v. Wade, the 30-plus-year-old abortion decision, is still the law of the land. 

(BEGIN VIDEO CLIP)

SEN. ARLEN SPECTER ®, PENNSYLVANIA:  Judge Roberts, in your confirmation hearing for circuit court, your testimony read to this effect and it‘s been widely quoted.  Roe is the settled law of the land.  Do you mean settled for you?  Settled only for your capacity as a circuit judge or settled beyond that? 

ROBERTS:  Well, beyond that, it‘s settled as a precedent of the court entitled to respect under principles of stari decisis and those principles applied in the Casey case, explain when cases should be revisited and when they should not, and it is settled as a president of the court, yes. 

(END VIDEO CLIP)

ABRAMS:  OK, so it‘s the settled precedent of the court but does that mean he will accept it.  Also, I don‘t understand how Roberts or any other nominee can say repeatedly I can‘t answer that question because that issue may come before me as a justice, except of course if I‘ve written about it or ruled on it, then I must answer the questions. 

Alan Dershowitz is the Harvard Law professor, former Supreme Court clerk, and the author of many books.  His latest is “The Case for Peace:

The Arab-Israeli Conflict Can Be Resolved”. 

Wendy Long was a law clerk for Justice Thomas and is now legal counsel for the Judicial Confirmation Network.  And of course Jonathan Turley, a George Washington University law professor and NBC News analyst.  Jonathan, I‘m not sure that I learned anything new about Judge Roberts‘ legal philosophy.

TURLEY:  Really?  Yes, he really did bring a new meaning to being a Philadelphia lawyer.  You know they used to say a Philadelphia lawyer could answer a question 100 ways and not answer it once and that‘s certainly the case today.  What was confusing really about all this is that his position was not consistent.  He said that he would not speak about his views of particular cases but he went ahead and did so in some regards, like the Griswold case. 

He said I‘ll just talk about that because I think that‘s settled.  And what you get out of this quite frankly was a very strategic decision.  That he‘s got the votes on the committee to get him through.  And I think that Karl Rove basically walked him outside the Capitol and showed him the chalked (INAUDIBLE) outline of Bob Bork‘s body and said you know if you want to have a cathartic moment in there, go ahead.  It‘s your seat to lose, but you‘ll be right where...

ABRAMS:  But he‘s no Bork, right?  I mean you know, look, Robert Bork...

TURLEY:  Actually...

ABRAMS:  Robert Bork had many more opinions on the record in writing than does this judge. 

TURLEY:  You know, Dan, I actually am longing for Bork.  I mean Bork was a very honest and direct fellow and he answered questions.  But I got to tell you, if you shave off the beard, have a few Botox injections, you could end up with John Roberts because many of his views that he‘s stated in the past are not that dissimilar from Bork...

ABRAMS:  I don‘t...

TURLEY:  ... who believed in a very narrow (INAUDIBLE) judiciary.

ABRAMS:  Well I‘ll let Wendy respond to that in a minute, but Alan, do you agree—I mean look, on some issues, yes, but on the whole, it doesn‘t seem to me entirely fair to compare the two, in particular because Robert Bork had so much on the record, such firm opinions on the record on so many controversial issues. 

DERSHOWITZ:  Well, Robert Bork in many ways is like me.  I‘m not confirmable for anything because I mean (INAUDIBLE).  I say whatever I think.  I write everything all the time.  I upset people on the right, people on the left.  I couldn‘t get a single vote from a Democrat or a Republican. 

Robert Bork decided to lead his life in that manner.  I admire that.  And he spoke his mind at all times and he paid a very, very heavy price for that.  Roberts is the anti-Bork.  He has never said anything controversial in public and what few things he said controversial in private he seems to be taking back a little bit.

But look, the whole show is a charade.  It‘s all about Roe v. Wade, which will never be overruled because it‘s been the greatest support the supreme court ever gave to the Republican Party and the Democrats would love to see Roe v. Wade overruled so that every election becomes a plebiscite over a woman‘s right to choose, which would win because those of us support a woman‘s right to choose have the vote. 

So the whole thing has been a sideshow.  We didn‘t hear one word about the rights of atheists, of dissidence, of criminal defendants, of people on death row, of the homeless, of the truly disenfranchised.  We only heard questions relating to special interest groups on the right and on the left.  This has become a clash between Republicans, Democrats, special interest groups, and it has nothing to do with the rights of the people, the disenfranchised who really need the Supreme Court.

ABRAMS:  Following up on that, there is a lot of sound, as Alan points out, from the—Judge Roberts and the Senate on this issue of Roe v. Wade.  I was surprised at how Arlen Specter, the pro-choice Republican, went after Roberts again and again and again on Roe v. Wade.  Here‘s part of it.

(BEGIN VIDEO CLIP)

SPECTER:  Do you see any erosion of precedent as to Roe? 

ROBERTS:  Well again, I think I should stay away from discussions of particular issues that are likely to come before the court again and in the area of abortion there are cases on the court‘s docket, of course.  It is an issue that does come before the court. 

(END VIDEO CLIP)

ABRAMS:  Wendy Long, what did you make of Judge Robert‘s presentation?

WENDY LONG, JUDICIAL CONFIRMATION NETWORK:  Well I thought he drew a very fine line, but he did it exactly right, Dan.  He discussed general principles of constitutional law.  He talked about various aspects of the right to privacy that are found in the Constitution.  But I think he took a very principle stance and I disagree with Jonathan in that respect. 

The cases that he refused to discuss are cases and issues that might come before the court in the future.  The case involving the marital right to privacy between a man and woman and contraception is not coming before the case anytime in the near future or ever.  That‘s not something that‘s controversial in our society right now.  Abortion is. 

ABRAMS:  But isn‘t there something odd about the fact—and this doesn‘t just apply to Roberts.  It applies to others—that if they‘ve written about the topic, then they have to answer questions about it.  But if they haven‘t written about it, they can say (INAUDIBLE) that may come in front of us and as a result, I can‘t answer questions. 

LONG:  But as with Ruth Bader Ginsburg, the things they‘re discussing are their specific writings, the positions and arguments that they personally have made in the past...

ABRAMS:  Right.

LONG:  That‘s what‘s under discussion.  When Justice Ginsburg was asked those aspects of the abortion issue, for example, she did discuss them, but when she was asked questions about, for example, the federal funding cases on abortion...

ABRAMS:  Right.

LONG:  ... she said absolutely not.

ABRAMS:  But does that make sense?  I mean does it make sense that because Alan makes the point that Robert Bork has been honest—it was honest, straightforward about his positions and as a result, he had no chance, but because Roberts has never really spoken public publicly about these issues well, that‘s going to make him a candidate with little problems. 

LONG:  If I were making the rules, I might back it off and say don‘t even discuss your prior writings.  But traditionally the line has been drawn there.  I think it‘s a sensible line.  It‘s a principle line.  You can‘t walk away from things you‘ve said in the past before you were a nominee for a judicial office, so I think it does make some sense. 

ABRAMS:  The issue of Justice Ginsburg came up and exactly what she said and that was the comparison that kept coming up again and again, how many questions did Justice Ginsburg answer when she had her confirmation process.  Here‘s Joseph Biden, Democrat from Delaware, challenging Ginsburg -- challenging Roberts on this issue. 

(BEGIN VIDEO CLIP)

SEN. JOSEPH BIDEN (D), DELAWARE:  Justice Ginsburg said precisely what position she agreed on.  Did she in fact, somehow compromise herself when she answered that question? 

ROBERTS:  She said no hints, no forecasts...

BIDEN:  No, no...

ROBERTS:  ... no previews. 

BIDEN:  Judge, she specifically in response to a question, whether or not she agreed with the majority or minority opinion in Moore v. the City of Cleveland, said explicitly, I agree with the majority and here‘s what the majority said and I agree with it.  My question to you is, do you agree with it or not?

ROBERTS:  Well I do know, Senator, that in numerous other causes because I read the transcript...

BIDEN:  So did I...

ROBERTS:  ... she took the position that she should not comment.  Justice O‘Connor took the same position.  She was asked about a particular case...

BIDEN:  Oh, Judge, Judge...

ROBERTS:  She said it‘s not correct for me to comment.  Now there‘s a reason for that...

(CROSSTALK)

UNIDENTIFIED MALE:  Wait a minute, Senator Biden.  He‘s not finished his answer.

BIDEN:  He‘s filibustering, Senator.

(CROSSTALK)

UNIDENTIFIED MALE:  Go ahead. 

UNIDENTIFIED MALE:  No he‘s not.

(END VIDEO CLIP)

ABRAMS:  Whether Ginsburg said it or not, Jonathan Turley, it‘s no surprise that he‘s not—Joe Biden knew he wasn‘t going to answer these questions, right? 

TURLEY:  Well I think that‘s right and you know it was interesting—I thought it was interesting when Feinstein said yes, I‘ll have to vote against you if I know for sure you‘ll vote—overturn Roe v. Wade.  Well I think any rational actor would then refuse to say I‘m going to overturn Roe v. Wade.  But the issue of principle that Wendy pointed out I think is an important one and people of good faith can disagree.

I personally don‘t see the principle basis of his refusing to give more specifics on his view of privacy.  Not about an individual case.  Traditionally, the rule is you can‘t—I can‘t ask him how are you going to rule on...

ABRAMS:  Right.

TURLEY:  ... Jacobs v. Alabama (ph), but what he was being given were hypotheticals and more importantly, more broad questions of is there a right of privacy?  Does it protect consensual sex, for example, among adults?  Those are types of questions—there‘s nothing I can see on a principle basis that should...

ABRAMS:  Very quickly, Alan Dershowitz, I was surprised that he did say that he‘s not so thrilled about the court using foreign law, which is a controversial issue as precedent.  That was the most specific I heard him get.  Real quick. 

DERSHOWITZ:  Well, yes, I mean that‘s easy because all of his constituents hate that kind of thing.  I wish somebody had asked him the following question.  You were there when Bush v. Gore was decided in Washington.  Everybody talked about it.  What did you say to people about Bush v. Gore?  Did you support it?  And remember, it‘s a case that has no precedential value.  The court has said it will never be cited again...

ABRAMS:  Yes.

DERSHOWITZ:  ... so it‘s a perfect question to ask him about.  But so far we haven‘t...

ABRAMS:  I‘ve got to wrap it up.  Alan Dershowitz, Wendy Long, and Jonathan Turley, I wanted to spend more time on this, but the breaking news got us. 

Coming up next, the corner talking about these charges that have just been filed in...

(COMMERCIAL BREAK)

ABRAMS:  Coming up, in the last hour 34 counts of negligent homicide filed against the owners of a nursing home in New Orleans because they didn‘t do enough to save the people in that home.  We‘ll talk to the coroner and a lawyer about this breaking news in a moment. 

(NEWS BREAK)

ABRAMS:  Continuing now with our breaking news coverage, we just had an exclusive interview about 20 minutes ago with the attorney general of Louisiana who has just announced that they are filing charges, 34 counts of negligent homicide against the owners of a nursing home for effectively allowing the people in that nursing home to die.  Now, the attorney general telling us that autopsies—well, telling us that all those people drowned in that nursing home, that they did not die of other causes. 

Let‘s check in with Orleans Parish coroner.  Dr. Frank Minyard joins us now.  Dr. Minyard, thanks for taking the time.  Appreciate it.  Now, I know that this is not your particular region and that as a result, you‘re not responsible for exactly what‘s happening at St. Rita‘s.  But you are—the attorney general also said that they are investigating 40-plus deaths apparently, at a hospital that is within your purview.  How long does it take to do these autopsies, to determine whether these people drowned or died of other causes? 

FRANK MINYARD, M.D., ORLEANS PARISH CORONER:  Well, Dan, there‘s 34.  We‘ve already started doing the autopsies because we do the autopsies for St. Bernard Parish, which is right below New Orleans.  The ones who died at the Baptist Memorial Hospital, (INAUDIBLE) we have not started on them.  But all of them were not patients there. 

They were not the sick people there.  That was an extended care facility that had about 20, 22 people in it.  So we feel that some of those people did die because the electricity went off and the ventilators that they were living on went off.  But we have not gotten to those yet and we‘ve done two from the St. Bernard hospital and both of those drowned. 

ABRAMS:  All right, so I was actually told that you had not—you were not doing the autopsies of those in St. Rita‘s, but if you are, let me ask you about that.  You heard the...

(CROSSTALK)

ABRAMS:  The attorney general who was on the program earlier saying that all 34 people had drowned.  Have you been able to do autopsies already of all the people who died at St. Rita‘s? 

MINYARD:  No, we have not.  We‘ve only done actual two autopsies.  We‘re in the process of doing that, but you know it‘s a long tedious process.  We‘ve done two and those two did drown. 

ABRAMS:  So is there some other way that the attorney general would know that the cause of death for all 34 was drowning? 

MINYARD:  I‘m not aware of it, but there are people who are suggesting that and—but we have not been able to prove all 34 as of yet. 

ABRAMS:  Is it pretty easy for to you determine drowning, not drowning? 

MINYARD:  Yes, it‘s very easy in an autopsy.  It‘s very easy. 

ABRAMS:  How many autopsies have you done up to this point? 

MINYARD:  We started doing autopsies yesterday, so we‘ve done five yesterday and five today.  It‘s a very slow, tedious process.  These bodies are not in very good shape, as you would understand. 

ABRAMS:  Have you been asked to do autopsies or do you expect to do autopsies of every body that is found in your Parish? 

MINYARD:  No, we are not doing autopsies on everybody.  We‘re only doing autopsies on cases where we know something bad has happened like at that nursing home and at that hospital and we‘re only doing autopsies on people who have suffered some violent trauma.  The other people, we are signing them out as hurricane-related diseases, problems. 

ABRAMS:  So basically, the police or the authorities would have to come to you and say look, it sure doesn‘t look to us like this was a death that was the result of a hurricane, either see a stab wound or something else and then they would ask for an autopsy, right? 

MINYARD:  Right.  Well by law, we have to do it and we‘ve already done two autopsies of two shooting victims. 

ABRAMS:  What kind of conditions are the medical examiners working with you working under? 

MINYARD:  Working under, it‘s a very, very tough environment.  You have to suit up with protective clothing.  There‘s air condition, but it doesn‘t work too well all the time, and they can only stay in there about two hours at a time.  They have to come out for relief.  So we‘re rotating pathologists in there to do these autopsies. 

ABRAMS:  All right, Dr. Frank Minyard, thanks a lot.  Good luck. 

MINYARD:  Thank you, Dan. 

ABRAMS:  Coming up, sex offenders forced to evacuate because of Hurricane Katrina.  Obviously many of them have not yet registered in the counties where they are temporarily living.  Dallas officials believe there could be as many as 4,000 unregistered offenders living in shelters.  We‘ll talk to them about what they‘re doing.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, we‘ve got more on the breaking news that two owners of a nursing home have been charged with 34 counts of negligent homicide for the deaths as a result of Katrina in that nursing home.  It‘s coming up.

(BEGIN VIDEO CLIP)

FOTI:  When you accept that patient, you have a duty and a standard of care to provide to these people.  In this case, we felt it was not done. 

(END VIDEO CLIP)

ABRAMS:  Charles Foti, the attorney general of Louisiana talking about the fact that there were two people who owned a nursing home who have been charged with 34 counts of negligent homicide.  He spoke only minutes before, doing an exclusive interview on this program where he told us that he believed that they had the evidence to convict these two nursing home owners who, it sounds like, effectively let—allowed the residents of that nursing home to die. 

Louisiana criminal defense attorney Frank Holthaus joins us now.  Thanks a lot for taking the time.  All right, so 34 counts of negligent homicide and basically, what it sounded like the attorney general was telling us was they were warned before the storm.  They were warned again before the storm.  They didn‘t do anything about it, enough under Louisiana law to get them on negligent homicide? 

FRANK HOLTHAUS, L.A. CRIMINAL DEFENSE ATTORNEY:  Well, I doubt that, Dan.  I want you to remember that the attorney general in Louisiana doesn‘t have the authority to institute prosecution.  All he can do is make accusations and conduct investigations, but it‘s not only the owners who didn‘t rescue these people.  There‘s a lot of blame to go around.  Many people did not rescue these poor patients. 

ABRAMS:  So that would be—the defense would be, all right, so yes, maybe we didn‘t do enough before the storm, but a lot of people didn‘t do enough before the storm and we yelled and screamed and nobody did anything to help us. 

HOLTHAUS:  Absolutely.  There‘s a lot of blame to go around.  It‘s (INAUDIBLE) General Honore has been telling us we can play the blame game if we want, but we really need to get on to fixing this situation and the true prosecution authorities, the district attorneys that have the power to institute prosecution in those parishes, they‘ll get to the bottom of this.  These people lived through what went on in those parishes.  Those district attorneys, they‘ll solve this investigation and they‘ll pursue it. 

ABRAMS:  What about the point that when you are running a nursing home, you have an elevated level of obligation and by taking on that job, you do open yourself up if you don‘t do anything and you don‘t take protective measures and as a result, people die. 

HOLTHAUS:  Well I mean that‘s an argument.  That sounds more like the kind of argument a lawyer in a civil case might bring, but what is this increased level of criminal standard.  I mean the owners didn‘t rescue these people.  The doctors didn‘t rescue these people.  Frankly, I didn‘t go down there and rescue these people...

(CROSSTALK)

HOLTHAUS:  ... and I don‘t think Mr. Foti went down there and rescued these people. 

ABRAMS:  Right, but...

HOLTHAUS:  A lot of us did nothing.

ABRAMS:  Right, but that‘s not really the same.  Whether they are able to escape these sort of criminal charges is a separate question, but the fact that you didn‘t go down there is a very different question from the fact that the nursing home was told, they say—the allegation is again and again, hey, you got to get these people out, and they said no, no, no, we‘re not going to do anything. 

HOLTHAUS:  Well, there, you‘re already anticipating what the facts of the defense are.  We can‘t do that.  If there were warnings that went out, they went out across the board.  Was there anyone in government that offered a solution?  What was the solution offered?  How were these people to be rescued? 

ABRAMS:  All right, Frank Holthaus, this is going to be an interesting and tough case, I agree, but I think Alan Dershowitz said it well when he was on the program earlier.  He said when you‘re talking about this sort of devastation and death, there‘s got to be—people are looking for some blame and look, there‘s no question if the allegations are true, the nursing home deserves some blame.  The question is whether it rises to that level of criminal.  All right. 

HOLTHAUS:  There‘s a lot of blame going around down here.

ABRAMS:  All right.  Thanks a lot.

All right, a new worry in the wake of Hurricane Katrina. 

(CROSSTALK)

ABRAMS:  Police in Dallas are concerned that sex offenders could be amongst the evacuees in shelters there.  So far, three registered sex offenders have come forward, but police estimate there could be as many as 4,000 offenders in the area.

Susan Risdon from NBC affiliate KXAS has the story.

(BEGIN VIDEOTAPE)

ARIELLE EARL, HURRICANE KATRINA EVACUEE:  It‘s very good.  It‘s very good because New Orleans police wasn‘t going to try to do anything at all, nothing at all. 

SUSAN RISDON, KXAS-TV REPORTER (voice-over):  The Dallas Police Department Child Exploitation Unit is trying to find out information that metal detectors won‘t. 

SR. CPL. MAX GERON, DALLAS POLICE DEPT.:  We‘ve (INAUDIBLE) detectives that are comparing various lists of registered sex offenders, a number of lists, and we‘re also looking at a number of lists of evacuees. 

RISDON:  Police estimate there could be as many as 4,000 sex offenders who came to north Texas after the hurricane. 

GERON:  We‘ve had three voluntarily come forward that they‘re registered sex offenders and identified themselves to us and said, hey, I want to comply.  So three out of several thousand, they‘ve got their work cut out for them. 

CYNTHIA RICHARDSON, HURRICANE KATRINA EVACUEE:  They have a lot of young children, elderly people in there, and they don‘t need to be around that.

RISDON:  Edna Banks is staying at Reunion Arena with her young son and a dozen other relatives.

EDNA BANKS, HURRICANE KATRINA EVACUEE:  We have to sign in both upstairs and downstairs, so we‘re constantly checking in, and I‘m just very confident in the job that they‘re doing thus far.

GERON:  We‘re trying to do everything we can, to number one, maintain the safety and security of the folks that are in the shelters and two, get the identified sex offenders that can‘t be with children out and into other facilities. 

(END VIDEOTAPE)

ABRAMS:  Susan Risdon reporting.  Joining me now is Lieutenant Colonel Williams, head of the Dallas Police Department Child Exploitation Unit.  Thanks a lot for taking the time.  We appreciate it.  All right, so what do you do? 

(CROSSTALK)

ABRAMS:  What do you do?  Once you find out who is a convicted sex offender and who isn‘t, what do you do with them?

LT. C.L. WILLIAMS, DALLAS P.D., CHILD EXPLOITATION UNIT.:  Well, we‘re making two separate—or we‘re using two separate strategies to identify those people that might be offenders.  There‘s a reactive component.  That is we‘re setting up booths so that people who are being monitored because they‘re on probation or patrol or because they‘re sex offenders can voluntarily come forward and then we‘re also using a proactive effort where we‘re going behind the scenes and trying to readily identify those that—who are trying to hide among the general populous. 

ABRAMS:  But what do you do...

WILLIAMS:  So once we find them, we‘re registering them here locally.  They‘re going through the regular registration process, which includes photography, being fingerprinted and registering all their—all the data so that we can find them should we need to do so in the future. 

ABRAMS:  And are they then going to be kept in a different part of the shelters? 

WILLIAMS:  No, we have three people—this was noted earlier—that have come forward voluntarily.  One of those individuals has chosen to leave.  He‘s (INAUDIBLE) to Louisiana now and officials there are awaiting his arrival.  The other two—one is a female.  She is in a privately run mission.  She is being monitored there by the staff.  One is also here in the general population in one of our large facilities where the evacuees are being held, but his activities are being monitored when he‘s onsite, and he is also being required to come in on a weekly basis and meet with us so we know where he is and what he‘s doing.

ABRAMS:  Are you just doing this for sex offenders?  What about someone who is a convicted rapist who is released? 

(CROSSTALK)

ABRAMS:  Sorry, what about someone is a convicted murderer, for example?

WILLIAMS:  My (INAUDIBLE) focuses on sex offenders and those who have committed physical acts of violence against children.  In general terms, if anyone come comes across those kinds of individuals, we‘re certainly going to try and identify them and monitor them.  The state and the federal government both are actively involved in trying to identify anybody who is on probation, anyone who‘s on parole, anyone who is being monitored electronically and those kinds of things, so there are a lot of police officers working very hard behind the scenes to identify all these individuals and to keep the general population safe from these predators. 

ABRAMS:  And is it fair to say look that there are no sort of hard fast rules about what happens to them?  You just want to know who they are.  You want to know where they are.  You want to be able to keep an eye on them. 

WILLIAMS:  That‘s the general strategy we‘re employing now.  Now if we run across somebody that poses a serious risk, somebody that‘s a really high-risk offender, then we will do what‘s necessary to take that person out of the population.  I think we‘re in extraordinary times.  This is an extraordinary moment, and I think that we would find ready acceptance from say the attorney general or also from the local district attorney‘s office to help us if we really need to take active steps against somebody. 

ABRAMS:  I‘m sure you will.  Lieutenant C.L. Williams, thanks a lot for taking the time.  Appreciate it. 

WILLIAMS:  My pleasure.

ABRAMS:  Coming up, for the first time the 911 tapes of those stranded in New Orleans as Hurricane Katrina came ashore.

(COMMERCIAL BREAK)

ABRAMS:  Back with a first look at some of the chilling 911 calls placed by Hurricane Katrina‘s New Orleans victims when the city started to flood. 

Here‘s NBC‘s Mark Mullen.

(BEGIN VIDEOTAPE)

MARK MULLEN, NBC NEWS CORRESPONDENT (voice-over):  Tuesday, August 30, many New Orleans residents who phoned 911 don‘t yet realize a levee has broken and Lake Pontchartrain is severely flooding the city.

UNIDENTIFIED CALLER:  I‘m stuck in the attic and me and my little sister here and my mom and we got water in the whole house. 

MULLEN:  All they know is they must race upstairs for their lives. 

911 OPERATOR:  Is there any way (INAUDIBLE) that you can (INAUDIBLE) get to the roof ma‘am?

UNIDENTIFIED CALLER:  We don‘t have nothing to get out of our home, out the windows.

MULLEN:  Some residents stay remarkably calm.  This caller‘s home actually floated off the foundation. 

911 OPERATOR:  House is floating?

UNIDENTIFIED CALLER:  Right, it‘s floating, and from the top of it, we can always put a hole in the roof.  We can always break...

MULLEN:  The roof, the best place to be rescued, but not all families had that option. 

UNIDENTIFIED CALLER:  Yes, 911, I need help.  I‘m in here.  I got a handicapped girl and I got a baby that‘s on a pump machine, and we on the bed.  He‘s on a ventilator.  But he‘s in the bed and the water is coming up.

911 OPERATOR:  Oh, there‘s an infant?

UNIDENTIFIED CALLER:  Yes, the baby is eight months.

MULLEN:  In the days following Katrina, search teams and civilians rescued more than 34,000 people. 

911 OPERATOR:  Hello, you dialed 911.

MULLEN:  What is still unclear, how many of those people who phoned 911 that fateful day are still here to tell the rest of their story. 

Mark Mullen, NBC News, New Orleans. 

(END VIDEOTAPE)

ABRAMS:  All right.  Coming up, we‘ve got pictures just into us of the New Orleans nursing home owners who have just been charged with negligent homicide, because 34 people died at that nursing home as a result of Hurricane Katrina, coming up.

(COMMERCIAL BREAK)

ABRAMS:  We‘ve got pictures of Salvador and Mable Mangano.  They are the two nursing home owners who have now been charged with 34 counts of negligent homicide for the residents who died as a result of Hurricane Katrina.  We‘ll have more on the story tomorrow. 

Thanks for watching.  “HARDBALL” up next.

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