updated 10/26/2005 2:00:57 PM ET 2005-10-26T18:00:57

Guests: Henry Lee, Jonna Spilbor, Steven Clark, Robert Ray, Ron Kaufman, David Brody, Ryan Lizza, Jonathan Darby, Vinda De Sousa

DAN ABRAMS, HOST:  Coming up, new gruesome details about how high profile attorney Daniel Horowitz‘s wife was killed. 

Police documents detail the physical evidence against the 16-year-old now under arrest for Pamela Vitale‘s murder.  But already, some of Daniel‘s former brothers and sisters in arms, defense attorneys talking about how this guy might get off.  I‘ll take on one of our regular guest who says the strategy would be to blame Daniel. 

And it‘s actually starting to feel like Supreme Court Justice-nominee Harriet Miers will not get confirmed by the Senate.  We‘ll talk to three reporters with the inside scoop. 

And in Aruba, Joran van der Sloot‘s father once under arrest in connection with Natalee Holloway‘s disappearance now wants his name clear.  Not so fast say the local police. 

The program about justice starts now.  

(END VIDEOTAPE)

ABRAMS:  Hi, everyone.  First up on the docket tonight:  New details about the brutal murder of Daniel Horowitz‘s wife, Pamela Vitale, and about what led police to the 16-year-old suspect.  Court documents just released reveal that Vitale was not only bludgeoned reportedly with a piece of crown molding, but also stabbed in the stomach by a killer who wore gloves during the attack and then left her lying in a pool of blood on her living room floor. 

It is still unclear what time she was killed, but according to the court documents, Daniel called police at 5:53 p.m. Pacific on October 15 screaming help me, she‘s dead.  Last week, Horowitz told me what he saw in the house.

(BEGIN VIDEO CLIP)

DANIEL HOROWITZ, FOUND WIFE MURDERED:  You could just see how the battle went back and forth and what objects were moved.  I could see things moved in certain ways that I know how the bodies were when they were fighting.  You could see the splatters of blood.  But you could just see that she‘s moving around.  That she is not giving up and of course it doesn‘t make much difference if she lost in the end. 

(END VIDEO CLIP)

ABRAMS:  Joining me now, “San Francisco Chronicle”  reporter Henry Lee.  Henry thanks for coming on the program.  Before we get to more of the new details, let me ask you this.  Are police looking for anyone else that they believe was actually involved in this murder? 

HENRY LEE, “SAN FRANCISCO CHRONICLE”:  It‘s very possible, Dan, although they won‘t say so publicly.  The investigation is far from over despite the arrest of the 16-year-old.  They‘re going to look at anyone who may have had contact with the suspect to see if anyone else was involved in this homicide. 

ABRAMS:  So they are still leaving open the possibility that maybe it wasn‘t just a fight that ensued when he got there, that possibly it was premeditated? 

LEE:  They‘re not saying about premeditation, Dan.  We are hearing that another youth, according to sources, telling the “San Francisco Chronicle”  at least one other youth was involved in this alleged credit card scam, that these youths may have been stealing credit card bills from the mailboxes to finance a marijuana-growing scheme.  Whether or not the other youth or others are involved in the homicide or the confrontation that led up to it remains to be seen, Dan. 

ABRAMS:  Tell us about the tip that ultimately led the police to the 16-year-old. 

LEE:  Two days after the homicide, a neighbor from Honeysuckle Canyon Road (ph) called the police department and said that he had noticed a strange transaction on his credit card bill.  The bill indicated that material for hydroponics-growing paraphernalia was bought with his credit card.  The supplier did not go through with the transaction believing it was fraudulent, but definitely, Dan, as you know from the affidavit, the material was supposed to be mailed to Dan and Pamela‘s house and that ultimately led the suspect to the home and tragically, to the confrontation. 

ABRAMS:  Anything else that struck you from these new documents coming out from the police? 

LEE:  Well unfortunately, it does have a lot of chilling details, Dan.  Apparently, Pamela Vitale was stabbed in the abdomen.  It left a 4-inch wound there.  She was found lying in a pool of blood and numerous wounds to her legs and as you mentioned, Dan found his wife at the home about 5:53 p.m., screaming help me, she‘s dead.  Very tragic indeed. 

ABRAMS:  Well what—do you know what they got from the suspect‘s house? 

LEE:  They retrieved two laptop computers, a CPU for a computer, knives, a duffle bag.  That‘s what was listed in this affidavit return.

ABRAMS:  All right.  Henry Lee, thanks a lot and again, you know, I‘m sorry to Daniel, who as I‘ve said before, is a friend of this program that we have to go into these sorts of details.  I kind of hope he‘s not watching this segment in particular because of what my next guest talks about.  And that is the way to defend this guy she says is to blame the victim, to blame Daniel Horowitz even though there is no evidence to suggest he was in any way responsible. 

Criminal defense attorney Jonna Spilbor writes an article on findlaw.com that got my blood boiling. 

Quote—“She says personally I think Horowitz is absolutely innocent...

JONNA SPILBOR, CRIMINAL DEFENSE ATTORNEY:  Thank you.

ABRAMS:  He‘s loved in his community and respected in his field and he seems to be a man of high moral fiber.”  OK, but then she goes on to offer a how-to on blaming Daniel anyway.  She explains that a husband is one of a few people a woman might let into her house while wearing only a t-shirt and underwear.

That Horowitz—quote—“conveniently”—quote—“had an alibi for much of the day”, even though it was a Saturday.  That statistically about 30 percent of women murdered in the U.S. are killed by a spouse or intimate partner.

That instead of treating him like a suspect, Spilbor says police handled Horowitz with—quote—“kid gloves”, putting him in a juvenile room rather than an interrogation room, allowing him to wash his hands at the station rather than keeping any evidence, by not asking Horowitz to take a lie detector test.  Spilbor also says a lawyer can argue that Horowitz‘s own behavior could have tainted the crime scene. 

That could mean reasonable doubt, she says.  That Horowitz made a point of saying he touched Vitale‘s neck at least twice.  He held her for a long time, rather than immediately looking for the perpetrator.  He dialed 911, threw the phone down, moments later dialed a non-emergency police number. 

Spilbor writes how could he know there was no longer an emergency unless he knew that he himself was the perpetrator and thus, the perpetrator was not at large.  How could one dial the non-emergency police number if one knew a satanic ritual killer was at large?

That‘s sort of effectively the closing argument she‘s suggesting might be presented.  So Jonna Spilbor joins us now, a friend of this program.

All right, Jonna, here‘s my problem, is that it sounds like it‘s all a game to you.  That the bottom line is you‘re saying look, I think he‘s innocent but hey, here‘s some nice little arguments we could make, even though there‘s no evidence to suggest Daniel Horowitz is responsible, why not point the finger at him.

SPILBOR:   No, listen before—I‘m ready to go toe to toe with you, Dan, but I have to tell you, Daniel Horowitz and his family, I completely believe he‘s innocent.  But some defense attorney is going to have to defend this kid.  Here are the arguments that right now, if I were defending this kid that I would make and you have to, you have to point the finger at a third party and Daniel...

ABRAMS:  No, but you don‘t have to...

(CROSSTALK)

ABRAMS:  No, no.  Wait.  Wait.

SPILBOR:   ... Horowitz is a likely culprit.

ABRAMS:  You don‘t have to point the finger...

SPILBOR:   If you‘re defending this kid...

ABRAMS:  ... at a third party. 

SPILBOR:   ... you do.

ABRAMS:  So you‘re saying that in every case, that criminal defense attorneys play a game and that is, point the finger at the victim, for example.  Doesn‘t matter if there‘s anything to support it or not, but have you‘ve got to point the finger at somebody. 

SPILBOR:   No, I didn‘t say in every case.  I said in this case.  Because of the facts and circumstances that we know so far.  Unless there‘s DNA, then all bets are off.  Then I don‘t need to be here.  If there‘s DNA evidence, this kid is likely sunk, but if there‘s not...

ABRAMS:  Wait.  But you know, Jonna, even if there is DNA evidence, there‘s going to be all sorts of arguments about oh, well you know maybe somehow it was still Daniel and maybe the kid had been in the house at a separate time.  I mean this is my problem. 

And look, if there is evidence to suggest that Daniel may have done it

look, I was asking Daniel these questions before they made these arrests.  I was asking him the questions about the way he acted and how he responded and would he take a lie detector test.  All those questions were legitimate, but now that they have made an arrest, OK, and look, there‘s going to be a trial.  They‘ve got to prove that this guy is responsible.  But if there‘s no evidence to suggest that Daniel did it, you don‘t have a problem with them pointing the finger at him anyway? 

     

SPILBOR:   No.  Statistically, a person—when a woman dies, her intimate partner, husband, lover, whatever, one-third of the time is responsible.  So right off the bat, because they‘re husband and wife...

ABRAMS:  Right.

SPILBOR:   ... you have to look at him. 

ABRAMS:  So look at him is a separate question.  What you‘re saying is even if there‘s no evidence, rely on the statistics and say it doesn‘t matter that he‘s the victim in this case.  Let‘s go after him anyway because the stats support it. 

SPILBOR:   Dan, I‘m not saying there‘s no evidence.  Why don‘t we look at the evidence that would point...

ABRAMS:  What evidence actually point—don‘t tell me evidence that might be well you know, you could argue this or that.

(CROSSTALK)

ABRAMS:  What evidence actually points to Daniel Horowitz as the killer of his wife?

SPILBOR:   I‘ll lay it out for you.  Number one:  Unless your name is Madonna, no grown woman opens the door in underwear for a total stranger.  For your husband, yes...

ABRAMS:  Right.  But we don‘t know that...

(CROSSTALK)

ABRAMS:  We don‘t know she opened the door. 

SPILBOR:   All right.  Well, somehow, the fight ensued in the  entranceway...

ABRAMS:  Right.

SPILBOR:   OK, so somebody got in somehow and she‘s in her underwear.  So either they forced—did they force themselves in while she‘s standing in the doorway...

ABRAMS:  But again, and that‘s proof that Daniel Horowitz...

SPILBOR:   No, no, no...

ABRAMS:  ... killed his wife.  Why?

SPILBOR:   There is no single piece of evidence that‘s going to prove...

ABRAMS:  Right.  There is no evidence that Daniel...

(CROSSTALK)

ABRAMS:  And that‘s the point. 

(CROSSTALK)

ABRAMS:  That‘s why it seems like such a game to me.  That you‘re basically saying...

(CROSSTALK)

ABRAMS:  ... I don‘t think Daniel Horowitz did it.

SPILBOR:   It‘s criminal defense work. 

ABRAMS:  I think he‘s absolutely innocent, but as a criminal defense attorney, hey, I‘ve got to point the finger at the victim.

SPILBOR:   No, somebody is going to defend this kid.  Now look --  Daniel was at the scene and because of his love for his wife, he‘s all over her, which means his fingerprints, his blood, that has no choice but to taint a crime scene, number one.

Number two:  How come he didn‘t look through the house for a killer?  I mean we don‘t know what we would do in a similar situation, but if I‘m the defense attorney, I‘m going to point that out.

ABRAMS:  And again, that‘s proof that Daniel killed his wife?

SPILBOR:  That‘s a piece of the puzzle that somebody, other than the 16-year-old punk killed his wife.  That‘s what I‘m saying.

ABRAMS:  All right.  Look, Steven Clark is a former California prosecutor, but he‘s also a friend of Daniel Horowitz, so there‘s a little bit of a bias there. 

You know, Daniel, look, I get what criminal defense attorneys do and I‘m not saying this guy doesn‘t deserve a defense.  I‘m just saying that I would like to see some evidence.  Before they start pointing fingers at Daniel, I‘d like to hear about evidence that suggest that he did it, rather than just saying hey you know what, you know the stats say it may be the husband, so you know what, hey, we‘re just going to go after him.

STEVEN CLARK, FORMER CALIFORNIA PROSECUTOR:  Well what the stats say is that one-third of the time it may be the husband, but what that means is that two-thirds of the time it‘s not the husband.  If a defense attorney takes the approach in this case that they‘re going to try to blame Dan, they‘re going to walk their client into a first-degree murder conviction. 

What the defense attorney should do in this case is sit down with his client and his family and go through this family history and find out where the synapse connections in this kid‘s brain cross wired.  That would be a much better approach to this case than to try to blame somebody who‘s a husband first and a defense attorney second, who walked into that crime scene and saw a horror beyond his belief. 

And he did look around the house.  He has provided a lot of information to the police that has been very helpful and the fact that he has gone on TV and talked to the media has helped bring this guy to justice. 

ABRAMS:  That‘s right.  That‘s another thing you say, Jonna, is that he shouldn‘t have gone on TV.  OK, you want to advise him as a lawyer whether he should or shouldn‘t go on TV, that‘s one thing.  You‘re saying that it makes him seem guilty that he went on TV.

SPILBOR:   No, Dan, it‘s just another piece of this huge unsolved puzzle. 

You go on TV...

ABRAMS:  What—wait.  Wait.

(CROSSTALK)

ABRAMS:  They‘re saying it‘s not unsolved. 

(CROSSTALK)

ABRAMS:  The authorities say it‘s not unsolved, just for the record...

SPILBOR:   Wait a minute. 

ABRAMS:  Right.

SPILBOR:   This kid‘s been arrested...

ABRAMS:  That‘s right.

SPILBOR:   He hasn‘t been convicted. 

ABRAMS:  No, but wait...

(CROSSTALK)

ABRAMS:  But I‘m saying the authorities are saying the puzzle has been solved, right?

SPILBOR:   No, no.  The authorities just said—your reporter just said that it‘s still a wide-open investigation...

(CROSSTALK)

CLARK:  Dan, Dan, let me just say this.  There has not only been an arrest but the D.A. has filed charges.  The D.A. would not have...

SPILBOR:   Big deal.

CLARK:  ... filed charges if he didn‘t believe beyond a reasonable doubt that he could get a conviction...

SPILBOR:   No, no, that‘s not the...

CLARK:  There‘s no reason why the D.A. would file charges...

SPILBOR:   ... standard for filing charges.

CLARK:  ... at this point...

SPILBOR:   That‘s not the standard for filing charges...

ABRAMS:  All right. 

(CROSSTALK)

ABRAMS:  Let me...

SPILBOR:   ... much lower than that.

ABRAMS:  Let me come back --  Jonna, very quickly, this issue of Daniel going on TV, again, you compare it...

(CROSSTALK)

ABRAMS:  ... to Scott Peterson, et cetera.  The difference is they used it against Scott Peterson to show he was guilty.  How do you think that they are going to use Daniel‘s statements to show he is guilty. 

SPILBOR:   An unlikable defense attorney will use those statements to show that he perhaps made a prior inconsistent statement.  He‘s locked in now, Dan, to what he said on camera.  And if that differs, when he‘s on the stand at trial, if this thing goes to trial, roll the videotape. 

(CROSSTALK)

SPILBOR:   And that‘s how it‘s going to—I‘m not doing it. 

CLARK:  Dan...

SPILBOR:   I‘m just telling you how it‘s going to be used.

ABRAMS:  Yes...

CLARK:  The better analogy is Sharon Rocha went on TV because she had a family member brutally murdered.  Did anybody criticize her for that? 

ABRAMS:  Yes.

CLARK:  No.  And they shouldn‘t criticize Dan Horowitz for doing what any other...

SPILBOR:   I‘m not.

CLARK:  ... family member of a crime victim...

(CROSSTALK)

CLARK:  ... would do in this case to help solve the crime. 

ABRAMS:  Yes.  And again, you know look, if there is evidence that suggest that Daniel Horowitz was somehow involved, bring it on.  But until then, please, I don‘t want to hear it.  I‘m still hearing people speculating about how Daniel might have done this.  Show me the evidence.  We‘ll talk about it on this program.  I promise.  Until then, let‘s end it. 

Jonna, Steve Clark, thanks a lot.

SPILBOR:   Thank you Dan.

ABRAMS:  Coming up, special prosecutor could announce tomorrow whether there will be any indictments in connection with the leak of a CIA operative‘s name.  Who said what to whom?  Was it illegal?

Plus, the president‘s pick for the Supreme Court not doing so well.  More people are now predicting she‘s not going to make it. 

And later, the father of Joran van der Sloot, one of the suspects in the Natalee Holloway case, wants his name clear.  The authorities tell us it‘s not going to happen because he‘s still a possible suspect. 

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:  We could see indictments as soon as tomorrow in the investigation into just who outed CIA agent Valerie Plame, seems about ready to wrap up.  But according to “The New York Times”, lawyers close to the investigation say special prosecutor Pat Fitzgerald has information that could have the vice president, Dick Cheney, a little closer to the leak. 

According to “The Times”, the lawyers say Cheney‘s chief of staff, Lewis “Scooter” Libby, a likely Fitzgerald target, first heard about Plame during a conversation with the vice president.  And that seems to contradict his testimony that he learned about Plame from journalists.  It also leads to questions about Cheney and the White House.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  If it is true that “Scooter” Libby learned Valerie Plame‘s identity from Vice President Cheney in June of 2003, would that not mean then that the vice president made a false statement three months later when he said he didn‘t know who sent Wilson to Niger? 

SCOTT MCCLELLAN, WHITE HOUSE PRESS SECRETARY:  We will wait to see what the special prosecutor does and learn more about the facts at that point. 

(END VIDEO CLIP)

ABRAMS:  Meanwhile, federal agents for that special prosecutor, Pat Fitzgerald, still at work this week apparently trying to determine if Plame‘s work for the CIA was really secret.  Talking to a neighbor, Marc Lefkowitz, who says they just asked me if I knew what my neighbor, Valerie Plame, did before it came out in the press.  I didn‘t know.

MSNBC “HARDBALL” correspondent David Shuster joins us now from Washington.  All right.  So David, this could come tomorrow.  How are we going to find out if there are indictments?

DAVID SHUSTER, “HARDBALL” CORRESPONDENT:  Well Dan, The grand jury is expected to meet starting at 9:00 a.m.  I will be down at the courthouse just checking to see if in fact the grand jurors who we‘ve identified with this panel, if they go into the grand jury room, then if prosecutor Patrick Fitzgerald or his associates go into the grand jury room. 

The way it works and it‘s sort of funny in Washington courthouses is that to return an indictment, they usually would actually leave the grand jury room, walk down or take an elevator down three flights of—to the first floor—from the third floor to the first floor, go to a magistrate‘s office, which is about 100 feet down a hallway and then an open court in the magistrate‘s office, they would actually return the indictments. 

Sometimes they will read the indictments, sometimes they won‘t.  It‘s difficult to tell.  But we believe that we‘ll have some pretty good indications that there will be indictments, simply by the movement of the grand jury. 

ABRAMS:  You mean that there already have been or there will be?

SHUSTER:  I‘m sorry.  That there will be.  And the betting, Dan, again in Washington among lawyers is nobody knows for certain, but they‘re betting among lawyers who have had witnesses in front of the grand juries that there will be indictments. 

ABRAMS:  You know that‘s what we keep hearing.  I don‘t get it.  How would the lawyers for the witnesses know if there‘s going to be indictment?  They‘re not in the—are they in the grand jury room? 

SHUSTER:  No.  But this is based on...

ABRAMS:  Right.

SHUSTER:  But this is based on I suppose and while nobody‘s confirmed that target letters have gone out, the code language that people are using in Washington and that lawyers in this case are using is that some of the witnesses have been notified that they are in legal jeopardy.  When you follow up and you ask Karl Rove‘s lawyer, “Scooter” Libby‘s lawyer, does that mean your client has received a target letter, you don‘t get any response.

But it‘s a very different response than several weeks ago when these were lawyers who were making it very clear my client has not received a target letter.  Now they‘re not saying anything. 

ABRAMS:  All right.  David Shuster, thanks a lot.  Appreciate it.

SHUSTER:  Thanks Dan.

ABRAMS:  All right.  So this story can get a little complicated.  The bottom line, the leak itself might result in indictments but so many of the reported cover-ups or alleged cover-ups that could have occurred afterwards.  To really understand what is going on, let‘s take a step back.

All right, we‘re going to try to lay this out.  Early news reports focused on top White House advisor Karl Rove.  White House denies it that he was the source of the leak.  According to reports and accounts from the grand jury, Rove admits he did talk to conservative columnist Robert Novak about Wilson‘s wife.  Novak reportedly says Rove confirmed Wilson‘s wife worked for the CIA, but Novak told the grand jury he learned her name from another source.

But even if Rove wasn‘t actually the leak, Rove could still be in trouble for what happened after that.  Rove allegedly failed to tell the FBI and the grand jury about another conversation, one with “TIME” reporter Matt Cooper in which Cooper, or according to Cooper, Rove said Wilson‘s wife worked for—quote—“the agency”. 

Now, “Newsweek” reports Rove says don‘t remember the conversation with Cooper until he located an e-mail he had written recounting their phone call.  Then last week, another twist.  The Associated Press reported that one of his later grand jury appearances, Rove said that he may have actually first learned about Wilson‘s wife from vice presidential advisor Lewis “Scooter” Libby.  OK, so that might put Libby at the center of the investigation. 

Libby reportedly testified that members of the media told him that Ambassador Wilson‘s wife worked for the CIA.  But a different story could be emerging from the grand jury about what Libby knew and when he knew it.  Various reporters including Judith Miller of “The New York Times” told the grand jury it was actually Libby who called them to discuss Wilson‘s wife and who worked for the CIA.

And remember that other report that Rove testified Libby may have first told him about Wilson‘s wife.  So it leads to the question, how might Libby have learned about Wilson‘s wife and the CIA.  Well according to a “New York Times” story today, maybe from the vice president himself.  More than a month before her identity was revealed in a July 2003 Bob Novak column, leaving open the possibility that the vice president was Libby‘s source and that Libby was Rove‘s source. 

So maybe Libby, some are saying, was trying to protect the vice president, which still leads to the question.  Are we going to see any charges filed?  Robert Ray is a former federal prosecutor and a former independent counsel who worked on the Whitewater investigation and Ron Kaufman is a former advisor to President George H. W. Bush and a Republican National Committeeman for Massachusetts.

Gentleman, thanks very much for coming on the program.  Appreciate it.

All right, Mr. Ray, what do you think that the issue is here?  I mean is the issue, do you think conspiracy, obstruction of justice, perjury?  If you were going to name an issue that the target should be most concerned about it‘s what? 

ROBERT RAY, FORMER INDEPENDENT COUNSEL:  That‘s very hard to say.  I think that, you know, there‘s a lot you‘ve just laid out the case for why there are many issues here and sourcing issues and who had the available information and what the motives were and that they were mixed motivations and the potential or failure of recollection and so on and so forth. 

I mean obviously, the mandate includes among other things, potential prosecution for false statements, obstruction of justice or perjury.  I think that‘s—in that area, is probably the most serious of the allegations and it seems as if, based upon what has been publicly reported, that the focus of that energy now at the end of this investigation seems to be on Mr. Libby. 

ABRAMS:  What do you make of those that are saying you know there better be a substantive crime here?  For example, William Kristol, editor of “The Weekly Standard”, said unless the perjury is clear-cut or the obstruction of justice willful and determined, we hope the special prosecutor has the courage to end the inquiry without bringing indictments.

I mean it‘s a little bit of a legalistic way to view it, but others have simply said, you know don‘t get him on the technicalities. 

RAY:  Well, perjury‘s not a technicality. 

ABRAMS:  And Mr. Kaufman, what you do you make of that?

RON KAUFMAN, ADVISOR TO PRES. GEORGE H.W. BUSH:  Well, a couple things.  You said it very good, Dan, at the beginning.  The special prosecutor was called to find out if someone willingly and knowingly outed a CIA agent.  If someone did that, they should be prosecuted and indicted.  No question about it.

If someone willingly and knowingly perjured themselves, he should—she should be indicted, but if someone three years ago said I don‘t remember something, a year later is asked the same question, remembers a little more, and that‘s a third (UNINTELLIGIBLE) a third year later, has another answer, that‘s kind of a technicality...

ABRAMS:  But that‘s not going to happen.  Look, as a legal matter, Pat Fitzgerald is not going to charge anyone for having a bad memory.  He‘s just not. 

KAUFMAN:  Well my mother loved me too much to let me be a lawyer, Dan, so I‘m not a lawyer. 

ABRAMS:  Yes.

KAUFMAN:  But the special prosecutor, as you know, even good ones and he is a good one, after three years, fall in love with a case.  I just hope there‘s an indictment for justice sake, not for indictment sake.

ABRAMS:  Well Robert, let me ask you that.  I mean as a former Whitewater independent counsel, was there ever a sense that you know boy, we‘ve been doing a lot of work here and you know as a result, we hate to just walk away from this and say we wasted our time. 

RAY:  I don‘t think that‘s what career prosecutors do and I think we‘re fortunate here that that‘s what Pat Fitzgerald is.  I mean you know, your eagerness and thoroughness as a prosecutor and he certainly is all of that, with the benefit of experience is tempered by the demands of a job to exercise judgment and discretion and nobody is claiming here that one wants to see a perjury trap laid for a particular target or a subject of an investigation nor would one want to prosecute unless you really could conclude, with confidence, beyond a reasonable doubt in evidence that could be presented to a jury and they would conclude unanimously that in fact there were knowingly false statements or a willful attempt to obstruct justice. 

So you know again, we‘re not talking about technicalities here and whatever you may view perjury to be, you are expected that the evidence is clear-cut in order to bring such a charge as serious as perjury.  So I have every confidence that Pat Fitzgerald will not commit to a prosecution unless he is convinced that he has a reasonable likelihood of being able...

ABRAMS:  Yes.

RAY:  ... to sustain a conviction.  Otherwise, he will walk away and notwithstanding the pressure. 

ABRAMS:  Ron Kaufman, do you think there‘s any chance he‘s going to walk away? 

KAUFMAN:  Yes. 

ABRAMS:  Yes?

KAUFMAN:  Karl Rove (UNINTELLIGIBLE) Dan, is a very, very smart guy.  And I honestly don‘t believe Karl Rove is going to put himself and more importantly the one thing we all know about Karl, he really loves this president, put the president‘s seat at risk.  So I honestly believe that he did nothing willingly or knowledgeably to cause this to happen.  And I think he walks away. 

ABRAMS:  Robert, I think that‘s wishful thinking.  I think that there probably will be some indictments.

RAY:  Again, we don‘t know.  That‘s what we‘re waiting to hear this week.

ABRAMS:  Yes.

RAY:  We obviously have arrived at the end of the investigation and there will be convinces you know one way or the other. 

ABRAMS:  Yes.  All right.  Fair enough.  Robert Ray and Ron Kaufman, thanks very much.  Appreciate it. 

KAUFMAN:  Thank you. 

RAY:  Thank you.

ABRAMS:  Coming up, more trouble for President Bush‘s pick for the Supreme Court.  Some now saying she may not even make it to the Senate, much less past it. 

And later, he was arrested in connection with the Natalee Holloway case, later released.  Now the father of one of the chief suspects says I want my name cleared.  The authorities saying (UNINTELLIGIBLE).

And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing sex offenders before they strike again.  Our search this week is in Connecticut.

Authorities are looking for Manuel Abreu, convicted of two counts of sexual assault.  Abreu is 63, 5‘3”.  He is not registered with the state.  If you‘ve got any information on his whereabouts, please contact Connecticut Department of Public Safety, 860-685-8060.

Back in a moment.

(COMMERCIAL BREAK)

*

ABRAMS:  It‘s actually starting to feel like Supreme Court Justice-nominee Harriet Miers might not make it past the Senate.  Will she even make it to the Senate?  We‘ll talk to three reporters with the inside scoop, first the headlines.

(NEWS BREAK)

ABRAMS:  Ugly, that‘s how many predict Supreme Court-nominee Harriet Miers‘ confirmation hearings will go if she makes it that fair.  Miers under fire as senators (UNINTELLIGIBLE) both parties are showing increasing skepticism over what they‘re saying are her qualifications and what they‘re calling a lack thereof.  Growing criticism being thrown her way from the nation‘s conservatives. 

Brian Burch, vice president of Fidelis, a Catholic anti-abortion group, saying we‘ve had three weeks here to try to sort out what kind of judge she is going to be.  We really do want to support the administration, but we just feel like we‘ve reached a situation with this nomination that is beyond repair.

This week, she‘ll be turning in revised answers to the first questionnaire she submitted to the Senate Judiciary Committee after it was deemed inadequate because Miers omitted dates saying she doesn‘t remember when she served in a number of positions with the Texas Bar and gave nonspecific legal answers to questions on various constitutional issues.

The pressure is on.  The question is will she be confirmed, much less make it to her confirmation hearings just over a week away.  Joining me now three reporters who cover this for very different audiences.  David Brody, Capitol Hill correspondent for the Christian Broadcasting Network, Ryan Lizza, White House correspondent for “The New Republic” and “Newsweek” correspondent Jonathan Darman.

Thanks a lot for coming on the program.  Appreciate it. 

All right, let me ask each of you first of all, before we even get to the Senate, David Brody, any chance you think the president is going to withdraw this nomination from what you‘re hearing?

DAVID BRODY, CHRISTIAN BROADCASTING NETWORK:  Probably not.  Probably not.  I mean if you had to put a ballpark figure on it maybe 70-30 that this goes to a hearing.  I mean the president is just not that type.  He‘s never been one to back away from a fight and he clearly has a fight right about now. 

ABRAMS:  But Ryan Lizza, what about the possibility of Harriet Miers withdrawing her own nomination? 

RYAN LIZZA, “THE NEW REPUBLIC”:  That‘s the scenario.  I think no matter what, that‘s how it will play out, whether the White House pulls the plug on her or she decides to pull the plug on her own nomination.  The way it will play out publicly is that Harriet Miers has withdrawn.  Look politically, this—the next two weeks may be the time to do that if the White House is going to do it at all. 

Because once you get into the hearings and you present her to the American

to the public in an even broader way, I think it makes it harder and harder for the White House to pull her.  So if they‘re going to do it the next two weeks are probably the time to do it. 

ABRAMS:  You know but Jonathan Darman, I think people are making it sound like answering questions in front of the Senate Judiciary Committee is like some really tough law school exam and you know boy, she may end up drooling or this.  I mean the bottom line is she‘s a smart lawyer.  Most smart lawyers can answer basic questions about constitutional law. 

JONATHAN DARMAN, “NEWSWEEK”:  She is a smart lawyer.  But—and she‘s a good corporate litigator and like a good corporate litigator should, she doesn‘t take very many cases to trial.  She‘s someone who you know likes to settle cases out of court before they get to that point and she‘s really had that opportunity with a lot of these critics on the right to do that in the past few weeks and she hasn‘t done that.  And I think that‘s why a lot of people are concerned about whether or not she can really do it when the pressure is really on in the hearing setting.

ABRAMS:  But I mean I‘m the ultimate bottom feeder, all right.  I mean I‘m a lawyer who‘s a TV talk show host, all right, and I feel like I could answer the questions on constitutional law from the Senate Judiciary Committee.  I mean listen this is Arlen Specter talking about sort of her capacity.  This is him on “Face the Nation”.

(BEGIN VIDEO CLIP)

SEN. ARLEN SPECTER ®, JUDICIARY COMMITTEE CHAIRMAN:  She has a very, very strong record as a civil lawyer, as a woman who fought up through the ranks, couldn‘t get a job right out of law school, but then was the president of a 450-person firm, became head of the Texas Bar Association.  I‘ve read her cases in the civil field and she‘s intelligent and I think she has the capacity to handle constitutional law. 

(END VIDEO CLIP)

ABRAMS:  Ryan Lizza, the capacity to handle constitutional—I mean he is the legal leader of the Senate, but that is so condescending. 

LIZZA:  I know.  They‘re setting the bar so low and you know you hit on something here.  The greatest asset that Harriet Miers has is ridiculously low expectations, not unlike the president in his elections.  So she could go in there—right now, everyone expects her to be a disaster and not be able to tell us you know, what the First Amendment is. 

So she could go in there and say you know, say a few simple things and

shock people, but the flip side of that is most Supreme Court nominees

aren‘t expected to say a whole lot in these hearings.  John Roberts, nobody

everyone knew he was qualified so he got in there and he could say whatever he wanted and people accepted it.  She actually has to have this careful balance where she proves that she understands what the Constitution is all about.  But she can‘t say too much because she doesn‘t want people to oppose her for her ideological reasons.

BRODY:  But Dan, there is a political reality on Capitol Hill right now.  And that is, is that if you talk to senators and this is what you‘re hearing on the Hill, is that she‘s going to get destroyed in committee.  I mean these are what aides on the Senate Judiciary Committee are saying privately on the Hill.  That does not bode well at all. 

(CROSSTALK)

ABRAMS:  But what does that mean she‘s going to get destroyed—I mean again, I think these senators sort of view themselves as these—like these great legal ogres who are going to come at her with questions she never would have thought of. 

BRODY:  Well part of the problem here is that it‘s kind of like going after Michael Jordan in a basketball game and you got John Roberts and now we have Harriet Miers, it‘s like Michael Jordan and then I step in to the game or something like that.  That‘s part of it.  The other thing is, is that you‘ve got an issue here where Harriet Miers has been a little, according to judiciary aides and others...

ABRAMS:  Yes.

BRODY:  ... a little slow on the uptake here in those meetings with the senators.

ABRAMS:  Well look, I mean Jonathan Darman, if she is literally slow, all right, meaning if she sort of has to rethink the questions and this and that, there‘s no way, all right.  But there‘s also no way she would have gotten where she is.  I mean I just think that we‘re sort of applying a little bit of a false standard. 

DARMAN:  Yes, I do think though, I mean the low expectation thing, I think too much has been made of that.  Because really the most important thing about these hearings is that the pressure is so high.  You have a situation right now where her opponents have created a frame for her so that someone in America who knows very, very little about the Supreme Court and very, very little about Harriet Miers thinks oh maybe she‘s just not that confident.  That‘s really out there, so if she does anything that reinforces that impression, that could be fatal.

ABRAMS:  President Bush saying he‘s not going to turn over notes, citing executive privilege, any guidance advice memos she‘s written his White House counsel. 

It‘s a red line I‘m not willing to cross.  People can learn about Harriet Miers through hearings, but we are not going to destroy this business about people being able to walk into the Oval Office and say Mr. President, here‘s my advice to you.  Here‘s what I think is important.

You know, Ryan, is there something inconsistent with the idea that John Roberts, we got all of his documents, all of his memos that he wrote to the Justice Department at the time, with all his supposed opinions.  He claimed at the time I was just taking the position of the government, et cetera.  And now with Harriet Miers they‘re saying we‘re not going to get anything. 

LIZZA:  Well, there is a difference and it‘s—look the president—it‘s a serious issue, executive privilege, and I think most presidents would probably have the same position Bush has.  But this is the—this is what everyone in Washington is talking about as the great way out of the Harriet Miers mess for everyone.  Bush can say, no, I‘m not going to give you the documents.  Republican senators you don‘t really want to confirm Miers anyway can say yes, you need to provide those documents.  Bush can say you know what, it‘s not worth the fight.  This principle is too important and nominate someone new. 

ABRAMS:  Yes.  All right.  Well look, I think she is going to make it to the Senate.  I was predicting that she was definitely going to make it through the Senate.  I‘m not so sure about that anymore.  We shall see. 

David Brody, Ryan Lizza, Jonathan Darman, great panel.  Thanks a lot. 

Appreciate it.

UNIDENTIFIED MALE:  Thanks Dan.

UNIDENTIFIED MALE:  Thanks.

ABRAMS:  Coming up, the Natalee Holloway investigation continues in Aruba, but the father of suspect Joran van der Sloot says it‘s time for me to clear my own name so I can get back to work as a judge.  Not so fast, says the deputy police chief.

And one man gives new meaning to the term sports fan or idiot, depending on how you look at it, volunteering for a little more prison time in honor of his favorite basketball great.  He got it. 

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)

(BEGIN VIDEO CLIP)

JORAN VAN DER SLOOT, RELEASED SUSPECT:  It was Natalee that asked me to go out with her.  It was her that asked me to come to the club.  It was her that was yelling at me to go dance with her and I kissed with her.  But neither me, Deepak or Satish ever had sex with her and no one ever said otherwise. 

(END VIDEO CLIP)

ABRAMS:  Seems that the Van der Sloots just can‘t get away from the Natalee Holloway case, but this time it‘s Joran‘s father, Paul, making news.  In an effort to clear his name, the Dutch Aruban official petitioned a judge to declare he is no longer a suspect in the Holloway case so that he can get back with his job with the government.  Paul van der Sloot was arrested in connection with the case on June 23 and released three days later. 

About two weeks ago on this program I asked the Aruban deputy police chief, Gerald Dompig, about Joran‘s father and whether the chief believed that Paul van der Sloot knows anything about Natalee‘s disappearance. 

(BEGIN VIDEO CLIP)

GERALD DOMPIG, ARUBAN DEPUTY POLICE CHIEF:  He is—has been and still is a person of interest and I wouldn‘t like to say more than that at this time. 

ABRAMS:  But let‘s be clear, a person of interest in connection with Natalee‘s disappearance...

DOMPIG:  Yes.

ABRAMS:  ... or in connection with something after the fact? 

DOMPIG:  Both. 

(END VIDEO CLIP)

ABRAMS:  Joining me now is Holloway family attorney, Vinda De Sousa, is an attorney down in Aruba.  Thanks for coming back on the show, Vinda.  All right...

VINDA DE SOUSA, HOLLOWAY FAMILY ATTORNEY (via phone):  Thank you for having me. 

ABRAMS:  As a legal matter, what is it that Paul van der Sloot is asking for? 

DE SOUSA:  Well I think that Paul van der Sloot wants to see that the authorities to tell him that he‘s no longer considered a suspect and that he will not be prosecuted in this case. 

ABRAMS:  Can a judge—the bottom line is as you just heard, the authorities do consider him still a person of interest and as a result, there‘s no way they‘re going to say that.  Can a judge step in and say we don‘t care what the authorities think, he is effectively cleared? 

DE SOUSA:  No, that‘s not the way it goes.  You request the judge of instruction to ask the prosecution but only if the case—I think this request by Mr. Van der Sloot is premature to say the least because in our legal system only when a case has been brought to a halt or when the case has been completely investigated, the prosecution is under the obligation to either notify the suspect that he or she will be prosecuted and be brought to trial or notify the suspect that he‘s no longer a suspect and therefore will no longer be brought to trial.  But we all know that the investigation in this case is still ongoing and I think he was took quick in asking for the authorities to declare him no longer a suspect. 

ABRAMS:  So can he not go back to work in his current status? 

DE SOUSA:  In his current status, no, and let‘s not forget that he was no longer a judge in training even before Natalee Holloway disappeared. 

ABRAMS:  So what is it that he wants to go back to doing? 

DE SOUSA:  Well he still had a contract with the legal system, with the justice system.  He was a substitute judge, but he was no longer presiding any hearings because he was no longer a judge in training.  So basically, I think he wants his name cleared and to see if he can be reinstated as a government official because that‘s what he was. 

ABRAMS:  Vinda, do you think there‘s any chance there‘s going to be an arrest in the near future?

DE SOUSA:  You know I don‘t want to speculate, but I‘m optimistic from what I‘m hearing down here that the investigation is going in full swing.  New people are being questioned.  Old people—not old people, but old persons of interest are being questioned and I would not exclude the possibility of either new arrests or re-arrests being made. 

ABRAMS:  Yes and that‘s very consistent with what Deputy Chief Gerald Dompig said on this program yesterday...

DE SOUSA:  Yes.

ABRAMS:  ... when he said that Satish Kalpoe—Deepak Kalpoe, sorry, may be hauled back into the police station.  Vinda, thanks a lot for coming on the program.

DE SOUSA:  Very welcome. 

ABRAMS:  Coming up, a Celtics fan takes his love for Larry Bird all the way to a jail—a prison sentence that reflects something about Larry Bird.  Talk about a birdbrain. 

And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing sex offenders before they strike again.  We‘re continuing our search in Connecticut.

Authorities looking for George Marshall, 37, 5‘4”, 138, convicted of sexual assault in 1988, hasn‘t registered with the state.  If you‘ve got any info on him, 860-685-8060.

Be right back.

(COMMERCIAL BREAK)

      ABRAMS:  My “Closing Argument”—there are crazy, whacky, zany sport

fans and then there are just dummies.  The crazies, the ones who wait for

weeks to get tickets or paint their faces to go to games, tattoo their team

logo on an arm, even mortgage their home to get season tickets.  The dummy? 

One Oklahoma felon convicted for shooting with intent to kill and robbery

seemingly trying to provide an appropriate photo to accompany the term

birdbrain in the dictionary.

Eric James Torpy‘s lawyers pled him down to a 30-year sentence, not good enough for Torpy.  No, he wanted his sentence to really mean something.  You see Torpy is a big fan of retired Boston Celtics great Larry Bird, so much so that he asked for his sentence to reflect Bird‘s jersey number 33.  As District Judge Ray Elliott tells it, he said if he was going to go down, he was going to go down in Larry Bird‘s jersey. We accommodated his request and he was just as happy as he could be.

But if Torpy had been a little more clever about it—I know that seems like a stretch—maybe he could have turned his love for Larry Bird to his advantage.  Instead of Bird‘s uniform number 33, Torpy could have asked to be sentenced to Bird‘s best season scoring average, 28, had two years knocked off of his sentence or maybe he could have really reduced his sentence, pleading down to Bird‘s all-star game appearances, 12. 

Why not go for broke and ask for a sentence to match the number worn by Bird‘s teammate Robert Parish.  On his jersey number, a number close to Torpy—closer to Torpy‘s IQ, Parish‘s number, 00.  Larry Bird must be so proud that his jersey has been retired in more ways than one. 

Coming up, some of you thinking, I‘m naive for asking how one man can possibly spend $241,000 in a strip club in one night. 

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say, now it‘s time for “Your Rebuttal”.  Last night we told about a CEO‘s trip to one of New York‘s most exclusive strip club, Scores, where he racked up a $241,000 tab on his American Express corporate card.  He‘s fighting it in court.  I said I heard the place can be expensive, but $241,000 in one night? 

Alexandra Molster, “Oh come on, Dan.  You heard that those places can be expensive?  From whom?  The guy next to you getting a lap dance?”

From Punta Gorda, Florida, Robert Graziani, “Maybe you better go down there and check out that strip club Scores yourself.  Maybe you should leave your credit card home.”  Robert, I hope you‘re doing all right with the hurricane. 

And some of you writing in about one of my guests last night, Tim Susanin, former federal prosecutor, but not about the substance of his comments, but about what was going on at the top of the screen behind him. 

Kevin in New York, “Were there vultures or bats that flew behind Tim Susanin‘s head every few seconds on tonight‘s show meant as an early salute to Halloween or were your—or you or your graphics people trying to send some other message?”

And from Camas, Washington, (UNINTELLIGIBLE) and Patricia Neb (ph).  “We love your show.  We watched what appeared to be the same flock of birds fly across a beautiful skyline behind Mr. Susanin at least six times.  Were we in some sort of Avian—quote - ‘flu loop‘?” 

You know, many of you wrote in about this.  You are eagle-eyed viewers.  Maybe more astute than most, but I didn‘t notice it.  But yes, it turns out it was the tape.  He was in a studio in Philadelphia.  We asked him, hey, you know what?  Can you guys play the tape in the background where there are like the bats and the vultures like going around and around and like—you know like can you imagine someone on cue saying, cue the bats and cue.  No, just a video. 

What can I say?  You know, I can‘t believe more people didn‘t write in about what he was saying.  Anyway, all right, yes maybe—Megan, my producer is telling me maybe it‘s the commentary that people weren‘t interested in what I was saying.  Thanks Megan.

Got to go.  Chris Matthews up next.  See you tomorrow.

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