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'The Abrams Report' for Dec. 2nd

Read the transcript to the Friday show

Guests: Frank Piazza, Arlene Ellis Schipper, Clint Van Zandt, Ron Kruzel, Melvin Tate, Paul Pfingst, Michelle Suskauer, George Clooney

DAN ABRAMS, HOST:  Coming up, the “Dr. Phil” shows responds to Aruban officials who say his show manipulated a crucial tape of a suspect in the Natalee Holloway case. 


ABRAMS (voice-over):  We have an audio expert here to show us what was or wasn‘t changed.  Did Deepak Kalpoe say that he and the other suspects all had sex with Natalee or did he say just the opposite.  We analyze the tape. 

And a jury decides the man who murdered 11-year-old Carlie Brucia should be put to death, but it was not a unanimous decision.  Should it have to be unanimous when you‘re talking about death?  We talk with two of the jurors. 

Plus, George Clooney challenges Bill O‘Reilly to a debate on this program. 

The program about justice starts now. 


ABRAMS:  Hi, everyone.  First up on the docket, the plot thickens.  The confusion is growing and our ABRAMS REPORT investigation continues into what could be a critical piece of evidence in the investigation into Natalee Holloway‘s disappearance. 

In question, an interview with Deepak Kalpoe, one of the three suspects in the disappearance.  At issue, whether Kalpoe said he and the other suspects had sex with Natalee the night she disappeared.  The answer?  Depends on who you ask. 

We‘re going to play all three sources we have and let you decide.  And we‘ve got an expert in the house today who‘s evaluated all the tapes with a computer model.  He‘s cleaned it up, got a formal response from the “Dr.  Phil” show that aired the tape. 

But first up, a clip of the interview provided to us by Jamie Skeeters, a polygraph expert, who got the interview with Deepak.  Listen carefully. 


JAMIE SKEETERS, POLYGRAPH EXPERT:  Nobody forced her to drink that night. 


SKEETERS:  Nobody told her that you can‘t (EXPLETIVE DELETED).  You know?  I mean and I‘m sure she had sex with all of you and (INAUDIBLE).

KALPOE:  She did. 

SKEETERS:  OK.  Well I mean good.  If she did, fine.

KALPOE:  You‘d be surprised how simple it was that night.


ABRAMS:  All right.  That seems to say what we laid out on the screen there.  Again, this is different interpretations.  We‘re intentionally putting up the words so that you can hear what the people who are providing them think that it‘s saying.  Next, that same clip mailed to us from Aruba. 


SKEETERS:  Nobody forced her to drink that night.

KALPOE:  No.  No.

SKEETERS:  Nobody told her that you can‘t (EXPLETIVE DELETED) her. 

You know?  I mean and I‘m sure she had sex with all of you and (INAUDIBLE).

KALPOE:  No, she didn‘t.

SKEETERS:  OK.  Well I mean good.  If she did, fine.

KALPOE:  You‘d be surprised how simple it would have been.


ABRAMS:  Finally the portion of the interview as played on the “Dr.

Phil” show, which caused al the controversy to begin with. 


SKEETERS:  And the question I‘ll ask you is, if you intentionally killed her.


SKEETERS:  If it was an accident, I can help all of you.  And if you guys were partying—even if somebody had given her a date drug, I‘m sure she had sex with all of you.

KALPOE:  She did.  You‘d be surprised how simple it was.


ABRAMS:  All right.  Now before we get to our first guest, I want to point something out, the man who is the key to all of this, the man who did the interview, Jamie Skeeters, was scheduled to be on our program last night.  Spoke to our producer three minutes before the show and was all set to go.  Showtime came, Jamie was MIA, didn‘t call back for his phone interview, didn‘t answer his phone when our producers called him.

We have just found out why we never heard from him.  At least Skeeters tells us the “Dr. Phil” show wouldn‘t let him appear.  Now to try to get to the bottom of this, I called Dr. Phil personally to try to sort this out.  I like Dr. Phil.  I‘ve met him before.

He didn‘t return my call.  I was told he‘s traveling.  I don‘t know what effect that has on the ability to use a phone, but I did get a call back from his executive producer and we‘re waiting for a statement from them.  Now, his P.R. team said they—quote—“stand by the tapes.  They weren‘t manipulated.”

But I still think something is going on here.  I don‘t know.  I don‘t know who it is.  I don‘t know where, by who, but the tapes sound different to me.  I want to get to the bottom of this.

Joining me now Frank Piazza, voice analyst and president of Legal Audio.  He‘s worked with the FBI, the DEA, and the U.S. Attorney‘s Office.  Frank thanks a lot for coming in.  Appreciate it.


ABRAMS:  All right.  Let‘s start with your computer model.  And what you did is you compared all three tapes, right?  You compared the original Jamie Skeeters tape.  You compared the tape we got from Aruba and you compared the “Dr. Phil” tape.  Tell us what you found.  Tell us what these colors that we‘re going to put on the screen mean. 

PIAZZA:  Sure.  If you look at the graph, the top waveform I believe is the original waveform...

ABRAMS:  And that‘s the Jamie Skeeters one. 

PIAZZA:  Yes, the blue form. 


PIAZZA:  Below that would be the Aruba form. 


PIAZZA:  And you can see the blue and the green, they have—they are

very similar in their appearance and their length, which tells me just as -

from a first visual that we have a match. 

ABRAMS:  Even though they sounded different.  I mean we played them. 

They sound a little different. 

PIAZZA:  Well the version I received was kind of a compressed version, as an MPEG or a Windows Media file.  And things can happen as far as noise gets added.  The level of noise can just be brought up. 


PIAZZA:  So that doesn‘t surprise me.  But the actual length of the file—another thing I looked into was the ambience happening around the recording and it‘s all identical. 


PIAZZA:  Nothing has changed. 

ABRAMS:  All right.  Now what about the—the “Dr. Phil” tape is going to be different.  I mean they would admit they—look, we edited it.  We‘re not claiming that we played the whole tape.  Is that all you‘re finding?

PIAZZA:  Well what I‘m finding is the initial clip I got from—to

work with was approximately about five seconds in length.  What I have done

I‘ve stretched it out here and I‘ve illustrated that they left out about five seconds in total.  You can see the two gaps...

ABRAMS:  Right.  They left out pauses.  They left out...

PIAZZA:  Right.

ABRAMS:  ... the comment that Skeeters makes back, et cetera.  OK.

PIAZZA:  And in those pauses you know what was left out were some words and some finishing—the finishing of words, you know which is probably why we are here today...

ABRAMS:  But you can‘t say, can you, that they cut out the end of did

you can‘t say that the word didn‘t was there and they cut that out? 

PIAZZA:  I can say that when I listen back to the originals that I hear didn‘t.

ABRAMS:  Did not

PIAZZA:  Not did not, didn‘t. 

ABRAMS:  Didn‘t...

PIAZZA:  Right.

ABRAMS:  ... meaning that Deepak‘s response to the question of did they all have sex with Natalee that night is didn‘t.

PIAZZA:  No, I didn‘t, I believe is the actual...

ABRAMS:  Well let‘s do this...


ABRAMS:  You cleaned up the tape. 


ABRAMS:  And here‘s—I‘m going to play the clean version first.  Again, this is what Jamie Skeeters gave to us and then I‘m going to play your cleaned up version...


ABRAMS:  ... I want to ask you what that means cleaned up in a minute. 

All right, here‘s—first of all Jamie Skeeters. 


SKEETERS:  Nobody told her to drink that night.

KALPOE:  No.  No.

SKEETERS:  Nobody told her that you can‘t (EXPLETIVE DELETED) her. 

You know?  I mean and I‘m sure she had sex with all of you and (INAUDIBLE).

KALPOE:  Yes, she did.

SKEETERS:  OK.  Well, I mean good.  If she did, fine. 

KALPOE:  You‘d be surprised how simple it was that night.


ABRAMS:  You know I do see like—Arlene Ellis Schipper is going to be joining us in a minute from Aruba, says she sees him shaking his head a little bit saying I didn‘t.  It kind of looks to me like he‘s shaking his head a little bit, but here‘s the cleaned up version.

What do you do when you clean it up before I play this?  What does that mean?

PIAZZA:  Well we try to remove some of that noise, that hiss, first is the first thing that gets in the way, clean up also is trying to lift up with the volume and gain changes the words so we can hear them finish and sometimes when you add certain frequencies to it you‘ll able to hear S‘s finish as the ends of words.  This is very critical.

ABRAMS:  All right.  Here it is. 


SKEETERS:  She - no—you didn‘t—nobody forced her to drink that night. 

KALPOE:  No.  No.

SKEETERS:  Nobody told her that you can‘t (EXPLETIVE DELETED) her. 

You know?  I mean and I‘m sure she had sex with all of you and (INAUDIBLE).

KALPOE:  No, she didn‘t. 

SKEETERS:  OK.  Well, I mean good.  If she did, fine.

KALPOE:  You‘d be surprised how simple it was that night.



ABRAMS:  Simple—what do you think—the end is simple it was or simple it would have been? 

PIAZZA:  The end? 

ABRAMS:  Yes. 


ABRAMS:  You‘d be amazed at how simple it was or simple it would have been. 

PIAZZA:  I think was but I‘d have to listen to it again.  I wasn‘t really getting a good...

ABRAMS:  OK.  Here‘s the Jamie Skeeters‘ response.  This is what—he was on the program on Wednesday as to what he says he heard on the tape. 


SKEETERS:  What I heard on the tapes and what you can hear on the tapes is when I make that statement, she probably had sex with all of you.  If you wait about a second and a half, you can hear him say she did.  And then I go, oh, because I‘m responding to a surprise cop-out.  Then he says something like and she did or did.  And then he goes and then you would be surprised how simple it was that night. 


ABRAMS:  All right.  But, Frank, you have a different take...

PIAZZA:  Well no.  I mean I agree with that...


ABRAMS:  The last part...


ABRAMS:  But the first part you don‘t agree with the yes, I did. 

PIAZZA:  Well you know you have a visual.  And the visual is just of the top of the head and...

ABRAMS:  Right.

PIAZZA:  ... you know you‘re looking you know for some help, you know to see how he responds.  I don‘t get that.  I hear a (INAUDIBLE) I don‘t hear anything else finish in the room.  I wasn‘t there. 

ABRAMS:  All right.  Frank Piazza stay with us for a minute.  I want to bring in Clint Van Zandt, MSNBC analyst, former FBI investigator.  He was actually on the “Dr. Phil” show and Arlene Ellis Schipper.  She‘s a member of Aruba‘s Strategic Communication Task Force.  She‘s the one who sent us the version from Aruba. 

You know Arlene, I‘ve been thinking a lot about this.  I‘ve been listening to these tapes a lot.  I‘ve been talking to you know the team over at “Dr. Phil”.  I do not believe that the “Dr. Phil” people somehow clipped the word you know did to make it seem like—didn‘t clip the word didn‘t to make it seem like did.  I think the bottom line here is that this is a tough call as to what you hear on that tape.  Do you deny that? 



ABRAMS:  Arlene.  Arlene. 


Sure.  I do believe he says no, she didn‘t.  But you know what?  The fact

that we are already for three days discussing what the heck he said proves

my point.  The claim of the “Dr. Phil” show was that it was a crystal clear

admittance by Kalpoe and the grievance was that the authorities still to

re-arrest him and on the basis of this we should boycott Aruba...

ABRAMS:  You know that‘s not really true, Arlene.  Arlene, that‘s not true.  I mean you keep...


ABRAMS:  ... no, you keep saying that on...

ELLIS SCHIPPER: It is.  It is. 

ABRAMS:  It‘s not true.  The reason that the family...


ABRAMS:  ... and all these other people are trying to boycott Aruba—and look, you—I don‘t know if you have heard what I‘ve said publicly about it, but I think it‘s political nonsense.  So you‘re talking to someone who thinks that it‘s sort of silliness, but with that said, the reason that they are saying that the boycott Aruba is not because of this tape.  They‘re saying it‘s because of the whole investigation and the way the family has been treated. 

ELLIS SCHIPPER: No.  This tape sets directly the scene for proof to the American people and to set an ambience to prove that the police does not want to solve this case nor does it want to arrest...

ABRAMS:  It was...


ABRAMS:  Look, it was one element, Arlene...


ABRAMS:  You‘re creating a little bit of a false, you know, a - something—a straw man here to just whack it down and saying (INAUDIBLE) this proves everything.  Look, this is not the end of the inquiry...

ELLIS SCHIPPER: No, no, no, no, I‘m not saying it.  I‘m just saying that this has been presented as the truth.  It is not crystal clear. 

ABRAMS:  It is not crystal clear.  I think...

ELLIS SCHIPPER:   ... for eight weeks in the media...

ABRAMS:  Well then you should be glad that we‘re doing it.


ABRAMS:  You should be glad.  You say you‘ve been doing this for three days.  You should be thanking us and saying thank you...

ELLIS SCHIPPER: No, no, no...

ABRAMS:  ... for actually looking into this. 

ELLIS SCHIPPER: This is the thing.  This is what I‘m saying, the fact that we are already discussing this for three days means that it is not crystal clear.  That proves the point that I‘m making all along. 

ABRAMS:  Clint Van Zandt...

ELLIS SCHIPPER: It is not that I‘m saying that I‘m not grateful.  This is the reason why we brought it to your attention.

ABRAMS:  Clint Van Zandt, what do you make of this? 

CLINT VAN ZANDT, FORMER FBI PROFILER:  Number one, I agree with you, Dan.  This tape, right, wrong, changed, cut, sliced, this is a branch off the tree.  What the American public is concerned with is that we are six months into this investigation and we are no closer now than we were the day this girl disappeared.  That‘s the problem.  The investigation, in most cases...

ELLIS SCHIPPER: Well you know Dan...

VAN ZANDT:  ... and it‘s gone downhill ever since then.  And whatever this tape shows...


VAN ZANDT:  ... or doesn‘t show, it does not disguise the fact that this case is six months old and it still hasn‘t been solved by the Aruban authorities. 

ABRAMS:  Go ahead Arlene.

ELLIS SCHIPPER:  But Dan, you know that really does not justify a boycott at all.  You know there are many police forces that deal with sometimes cases that are hard to solve, for instance, the Daniel Embro (ph) case of Philadelphia.  That‘s one of the best police forces in your country and we greatly respect those. 

That case hasn‘t been solved for six months either.  You don‘t boycott Philadelphia, do you?  Well why would you boycott Aruba?  Aruba has nothing to hide.  The police are very committed to solve this case and that is the bottom line.  And these ambience makers and setting scenes in the “Dr.  Phil” show, they miscreate the truth and the efforts of the Aruban people and the Aruban authorities.  I can assure you that we are committed to finding the truth. 

ABRAMS:  All right.

ELLIS SCHIPPER:  We have nothing to gain by hiding. 

ABRAMS:  Let‘s do this.  We‘re going to take a break.  I‘m going to come back.  We want to play a little bit more of these tapes again.  And I‘m going to ask Frank Piazza after this break if we are going to get a firm answer, if we can get an unequivocal yes or no answer to this question.  Is it answerable?  That‘s coming up. 

And the man who murdered Carlie Brucia, sentenced to death.  The jury‘s decision not unanimous, 10-2.  We‘ll talk to two of the jurors next. 

And later George Clooney talks about everything from his new movies to Bill O‘Reilly, even challenges O‘Reilly to a debate on this program. 

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



SKEETERS:  And the question I‘ll ask you is if you intentionally killed her? 


SKEETERS:  If it was an accident, I can help all of you.  And if you guys were partying, even if somebody had given her a date drug, I‘m sure she had sex with all of you. 

KALPOE:  She did.  You‘d be surprised how simple it was.


ABRAMS:  All right.  So we‘re talking about whether—when you get the original tape whether you actually hear just the opposite in the context in the Natalee Holloway investigation whether Deepak Kalpoe actually says didn‘t as opposed to did.  There‘s a big difference and it‘s led to a huge fight as to what sort of evidence this should be in Natalee Holloway‘s disappearance. 

Because look, if Deepak Kalpoe is saying that they all had sex with her, that is a relevant piece of evidence in this case.  No one would dispute that.  The question that some have been asking is you know what does the “Dr. Phil” show say about this? 

We‘ve been trying to get a statement from them.  We haven‘t gotten one.  But Jamie Skeeters is the guy who was on the show.  He‘s the one who did the interview and here‘s what he said about the tape that was played on the “Dr. Phil” show and about his own tape. 


ABRAMS:  Are you vouching for the tape that was played on the “Dr.

Phil” show?

SKEETERS:  Dan, yes, listen, even the Dutch folks indicated my tapes are authentic.  They haven‘t been touched.  They‘re pure.  They‘re virgin and they—they‘ll speak for themselves. 

ABRAMS:  All right.

SKEETERS:  And as far as “Dr. Phil”, Dan, he‘s as honest as you are and his entire staff.  They‘re—nobody is trying to manipulate anything.  The evidence is what it is.


ABRAMS:  Arlene, you don‘t dispute that, right?  You are not saying that Skeeters‘ tape is a fake, right? 

ELLIS SCHIPPER: The C.D. ROM that Mr. Skeeters sent to the Aruban police did not prove evidence of tampering with, no.  That was the conclusion of the Forensic Institute. 

ABRAMS:  Right.  OK.  And when you say tampering with, again, the “Dr.

Phil” show doesn‘t dispute the fact that they edited the tape. 

ELLIS SCHIPPER: No, but the findings of the Forensic Institute do not

they use specifically the word manipulation.  They do not use the word editing and...

ABRAMS:  But what does that mean...

ELLIS SCHIPPER: and that means editing for content (INAUDIBLE).  What they do is they find out where the cuts were and they proved—they pointed out that the cuts were right before she and right after the word did.  And when we saw the—when the technical team—I say...


ELLIS SCHIPPER: ... actually I saw it because—but the technical team of the police put those findings of the NFI together with the C.D. ROM next to it of Mr. Skeeters and you see no, she didn‘t and you see the nonverbal communication of him shaking his head, they found out then the official result is that it was tampered with.   

ABRAMS:  Right...


ELLIS SCHIPPER: It was doctored.

ABRAMS:  Yes.  All right.  But see I think that term is—because I‘m looking at the transcript of even what are you claiming is on there and even if you look at that, it‘s clear, they wouldn‘t dispute.  The “Dr.  Phil” show would say look, look at the transcript.  You‘re right.

We did cut right before she and we did cut right after did.  And they would say that that was just for editing purposes.  But the more important question, of course, is what is actually said on that tape.  And Frank look, you spent a lot of time listening to this again and again.  And you put it on your computer model.  And you believe that the term didn‘t is on there, right? 

PIAZZA:  That‘s what my ears tell me.

ABRAMS:  Now what about—I want to ask you about the science of this.  Richard Parton on this show last night, audio expert, here‘s what he had to say about his findings on the same question. 


RICHARD PARTON, PH.D., VOICE ANALYST:  We look at the waveforms and there is no question from the way the words stand on the waveforms that he said that they did have sex, also in context with the conversation that followed.  It looks like it said they did have sex with her. 


ABRAMS:  What‘s the—I mean—it‘s not a science.  I mean it‘s a science, but there is an art to it, right?

PIAZZA:  Yes.  You know we are being asked to help make a decision or help assist you in making a decision...

ABRAMS:  Yes...

PIAZZA:  ... that‘s why I have to remain neutral.  And based on my experience having listened to thousands of hours of conversation, I mean I hear a hot of this.

ABRAMS:  Yes.  All right.  Look, bottom line, I got to tell you I think—unless I hear something new, I‘m ready to drop this and say that I don‘t think we‘re going to know.  But, you know, we shall see.  I look forward to any new evidence anyone has to provide one way or the other.  Dr. Phil is invited to appear on the program.  There‘s a lot of allegations being made about his program by Arlene and some of the Aruban authorities.  He is invited to appear at any time.  Clint Van Zandt, Arlene Ellis Schipper, Frank Piazza, thanks a lot.  Appreciate it.

PIAZZA:  Thank you very much.

ABRAMS:  All right, we‘ve got another heart-breaking story, but this one where justice was served. 


SUSAN SCHORPEN, CARLIE BRUCIA‘S MOTHER:  He couldn‘t be dead fast enough for me.  I want him dead.  I want him dead now.  My daughter is not breathing, she‘ll never breathe again.  I can never hold her again.  I‘ve got to wait for appeals before you know he dies? 


ABRAMS:  Carlie Brucia‘s mother talking about the man who kidnapped, raped and killed her 11-year-old daughter.  Even though 10 of 12 jurors recommended death for Joseph Smith, it‘s now up to the judge to make the final decision, impose a sentence, but judges almost always accept the jury‘s recommendation. 

The foreperson spoke on behalf of the jury right after the verdict.


RON KRUZEL, JURY FOREMAN:  We were called by the citizens of Sarasota County to do a job.  It was not an easy task.  We‘ve completed that task.  Our hearts go out to the families of both Carlie Brucia and Joseph Smith and we‘re praying for them. 


ABRAMS:  Joining me now is the jury foreman, Francis Kruzel, who goes by the name of Pastor Ron.  And Melvin Tate is with us, as well. 

All right, Melvin, let me start with you.  Thank you first of all very much for coming on the program.  We appreciate it.  I understand that you all have reached an agreement where you don‘t want to get into what any particular person said or felt and that‘s fine.  I‘m not going to ask any questions about what a particular juror number said or who was saying what.  But give us a sense of why you think two people on that jury ended up voting against the death penalty. 

MELVIN TATE, JUROR IN CARLIE BRUCIA MURDER CASE (via phone):  I feel that the—most of the jurors felt to do what was best for the three little girls.  (INAUDIBLE) Joe Smith had three daughters and probably the older one is maybe 9 or 10.  And I know myself I wanted to do what would be best for those children.  And I had the question in my mind, would they be better off with the death or have them facing their father is in prison for the rest of his life. 

And hopefully I decided the right way.  I don‘t know.  As far as who voted what, I do not know.  It was a secret ballot and a very good jury panel.  I felt they were all—seemed to be Christian people and really concerned for the Brucia family and also the Smith family. 

ABRAMS:  When you say—when you talk about his three children, the defendant‘s three children, was that what was going on?  I mean it really wasn‘t a discussion of maybe he didn‘t do it, we have any questions in our mind, we think he might be actually a good person.  It was strictly a question of, what‘s the best thing to happen for those three children? 

TATE:  That was in my mind.  We—I wanted to bring closure to this for the Brucia family and also for the Smith family, but I don‘t know—there was a question that went around whether—we had seven pages of (INAUDIBLE) to go through and we went through each one individually and discussed it.  This came out during the discussion. 

I thin we all went in there knowing he was guilty.  We had a tape where he had confessed it and we had a picture of him at the car wash.  All the evidence, the jurors—the lawyers did a great job presenting that to us.  And we had it all (INAUDIBLE) so there was no doubt about his guilt. 

ABRAMS:  And Francis joins us now.  Thanks very much for joining us, as well.  What do you think was the reluctance on the part of two jurors?  And again, I‘m not asking you who they were, but what do you think was the reluctance on the part of the two jurors to impose death?

KRUZEL:  Good afternoon, Dan.  What I would like—what I would suggest is that there were two phases to the process, the criminal phase and the penalty phase.  The criminal phase we had to weigh the evidence, only the evidence and testimony that we saw in the courtroom. 

And the second phase we were to weigh the aggravating circumstances and the mitigating factors.  And we did that on a personal understanding of what weight we would assess to those things.  Like Melvin said—hi, Mel. 

TATE: Hi Ron. 

KRUZEL:  We worked through the order of the law that was given to us by Judge Owens...

ABRAMS:  Right...

KRUZEL:  ... item by item...


KRUZEL:  ... item by item...

ABRAMS:  Right.  You went through and everything as you should have and no one is questioning that.  I‘m just wondering what it was that led do you think two people to say I simply can‘t vote for death? 

KRUZEL:  Well it‘s—we looked at the aggravating and—aggravating circumstances and the mitigating factors and for them, the things that weighed more on the mitigating side than the aggravating side. 

ABRAMS:  All right.

TATE:  (INAUDIBLE) who voted—the two votes were, I have no idea.

ABRAMS:  All right.  Well fair enough.  Pastor Francis Kruzel, Melvin Tate, thank you both very much.  Appreciate it.

KRUZEL:  You‘re welcome. 

ABRAMS:  Coming up, so should a jury have to be unanimous to recommend someone be put to death?  We debate.

And Bill O‘Reilly does a lot of talking about George Clooney; tonight George Clooney is talking back—my interview coming up. 




SCHORPEN:  He may be condemned but he‘s still breathing and my daughter isn‘t.  If he was to die tonight yes, I might get a good night‘s sleep. 


ABRAMS:  Carlie Brucia‘s mother after hearing a jury‘s recommendation that her daughter‘s killer be executed.  According to the Death Penalty Information Center, Florida is one of five states with the death penalty that allows non-unanimous jury recommendations in death penalty cases. 

In this case 10 voted for death for Joseph Smith.  Two voted to spare his life.  And it‘s a recommendation, but the question is should all 12 be required to agree when offering a recommendation about someone living or dying? 

Joining me now former prosecutor Paul Pfingst, now a MSNBC legal analyst and Florida criminal defense attorney Michelle Suskauer.

You know, Paul, something troubles me about the idea of a 10-2 recommendation for the death penalty and then a judge feeling a great burden, if not obligation to impose it.  I know you have had cases where the judges haven‘t accepted the jury‘s recommendation, but you know as well as I do that a jury‘s recommendation in almost all cases means the judge is going to do it. 

PAUL PFINGST, MSNBC LEGAL ANALYST:  And that I think makes it something of an advantage to not have to require a unanimous verdict, Dan, because a judge can get a message that maybe there is not a strong common sense in a community.  If this required a unanimous verdict, it‘s likely that there would have been a unanimous verdict because they would have stayed in that jury room for day after day after day until in all likelihood history teaches us, the last two jurors agree to make it unanimous.  So there may be actually more truth coming to the judge and a fairer representation of what the jury was thinking...


ABRAMS:  But we don‘t ask for that in guilt or innocence phases.  We say get back there and come to a unanimous verdict. 

PFINGST:  Well guilt or innocence is not a recommendation.  That‘s it. 

This is a recommendation...

ABRAMS:  That‘s not true. 


ABRAMS:  A judge can throw out a verdict. 

PFINGST:  Well that‘s—but it‘s not a recommendation.  It is a verdict.  It can be set aside.  But a verdict by a jury in a guilt or innocence phase is not a recommendation to the judge for a verdict.  It is the jury‘s verdict and unless there is a legal reason for it to be set aside, it won‘t be set aside.  In a death penalty case, the recommendation is just that, a recommendation, which the judge is free to accept or reject. 

ABRAMS:  Michelle, what do you make of it?


Most of this country has it right.  It has to be majority and I think...

ABRAMS:  Has to be unanimous. 

SUSKAUER:  I‘m sorry.  That it has to be unanimous.  I mean that—most of the country has it right.  And this is different.  Although it‘s not guilt or innocence.  This is the ultimate penalty.  It‘s death.  If they have to sit in there more than five hours like they did in this case for five days or five months, then they should do that. 

And it should be unanimous.  That‘s what it should be in this case.  It shouldn‘t be a 10-2.  Because even though it‘s just a recommendation in Florida, the judge has to give it great weight and he‘s going to follow what this jury is going to say. 

ABRAMS:  And Michelle, if it‘s 7-5 in Florida, the judge still has to give it great weight.

SUSKAUER:  The judge still has to give it great weight and he could very easily give the death penalty.  And that is very scary to just have one more juror on the side of death and someone gets put to death because of that...

ABRAMS:  You know...

SUSKAUER:  ... so it really should be unanimous.

ABRAMS:  Paul, it does seem like we always err on the side of caution when it comes to the death penalty and yet in these five states it seems that we‘re doing just the opposite. 

PFINGST:  Well I—no, it does come a point where if you have a recommendation, why not make it a fair recommendation?  There are people who have some misgivings about it.  Tell the judge that.  Why hide that from the judge?  Why go in there day after day after day and do the arm-twisting and get people to go along. 


PFINGST:  That‘s what happening in these cases, is the arm-twisting goes on.  If a juror has a sense that they are uncomfortable with it, tell it to the judge.  Make that part of the recommendation.

ABRAMS:  Yes, but I—why not just go with what the other states say, which is if you don‘t get it unanimous, it‘s not happening. 

SUSKAUER:  That‘s right.

PFINGST:  There can be a difference without being a right or wrong. 


PFINGST:  There can be a difference in process without somebody being better or worse. 

ABRAMS:  All right.

PFINGST:  I‘m just saying that the recommendation in this case there may some benefit to a judge in actually knowing what the real sense is.

ABRAMS:  I got to wrap it up.  Paul Pfingst, Michelle Suskauer, thanks a lot.

SUSKAUER:  Thank you.

ABRAMS:  Coming up, George Clooney challenges Bill O‘Reilly to an on-air debate on this show.  And I jokingly ask George whether he will be hosting the upcoming wedding of Brad and Angelina. 


ABRAMS:  Coming up, George Clooney challenges Bill O‘Reilly to an on-air debate on the program about justice. 


ABRAMS:  Last night we showed you part one of my interview with George Clooney about his new movie, “Syriana”.  But I also asked Clooney about “Good Night and Good Luck”, his film about how Edward R. Murrow took on Senator Joseph McCarthy back in the ‘50‘s.  Clooney directed and was one of the stars of that film, but he‘s also got some strong opinions about the state of television news and about a man who talks about Clooney a lot, Bill O‘Reilly. 


ABRAMS:  I walked away from that movie thinking Murrow sort of laid down the seeds for cable news. 


ABRAMS:  That basically, when you take a position, which Murrow did, that‘s the very thing that cable news does.  And it seems that‘s the very thing you don‘t particularly like about cable news.  Is that fair? 

GEORGE CLOONEY, PRODUCER, “SYRIANA”:  I tell you it‘s a trickier thing than that.  Because news is so different now because the idea is it used to be three networks.  And look there can be flaws with that because if the information is poor from all three networks, where else are you getting your information from? 

But you used to get all your information from basically these three same sources, so you‘re starting with the same information.  You go home and you digest it through your own political beliefs and your own social beliefs and come up with an opinion based on that.

ABRAMS:  But that assumes before everyone wasn‘t biased and that...

CLOONEY:  No, no, you‘re right.  But I would also say this.  The difference is and I think that you‘ll understand at least my point, is yes, he did open the door for taking a stand on an issue instead of saying, we‘re just going to report the news.  However, his was and Cronkite did when he went to Vietnam and came back and said this war doesn‘t work, was to go against or to talk about or to challenge a government‘s policy, not to trumpet its policy. 

ABRAMS:  But some of your—the people on the right would say, for example, that they do—they take on the Democratic senators all the time... 

CLOONEY:  Sure. 

ABRAMS:  ... in the same way that Murrow did.

CLOONEY:  But I think that‘s fine and I think that‘s fair.  But I didn‘t see a whole lot of challenge of the Republican leadership at that same time from some conservative you know stations.  Fair enough.  I mean but newspapers have done that for a long time. 

You go to the newspaper that you know best represents your political view, so it may not be a bad thing.  I just always feel like or worry about the idea, I think more than that we were talking about the bigger issue, which is broadcast news.  And you know this as well as do I because it‘s your fight and it‘s my father‘s fight and it‘s always waged and never won, which is that careful balance of entertainment and news. 

ABRAMS:  What is with you and Bill O‘Reilly?  Really seems like Bill O‘Reilly gets under your skin and I see interviews with you...


ABRAMS:  ... a third of them, Bill O‘Reilly‘s name is brought up. 

CLOONEY:  But I don‘t—you know I don‘t start by bringing up his name, you know usually.  It‘s usually—you know look, I just did a film about broadcast journalism and so everyone brought it up. 

ABRAMS:  But don‘t you sort of by taking him on, and you have in the past, don‘t you...

CLOONEY:  Make him more famous? 

ABRAMS:  Yes.  I mean...


ABRAMS:  ... George Clooney is a pretty famous guy.

CLOONEY:  I never once after gone at him when he said things about me.  That wasn‘t the issue.  I‘ve gone at him when the people that I‘ve asked to stick their neck out, you know that work on a telethon, for instance, who did everything right, are suddenly being vilified by something that isn‘t true.  They‘re made-up facts.  It‘s then my job to defend them since I was the one who brought them in. 

ABRAMS:  Isn‘t that the bait—I mean isn‘t that the bait to get Clooney? 

CLOONEY:  Yes, but I don‘t go on his show.  He kept saying come on my show and debate the 9/11 issue, which of course he made up.  He made it up out of whole cloth.  He still to this day says you know we got it right and the Red Cross changed their ways.  We weren‘t the Red Cross.  We‘re the United Way.  I mean literally he gets the facts wrong. 

ABRAMS:  But he drives you nuts, doesn‘t he? 

CLOONEY:  Well he drives me nuts because it‘s irresponsible.  That‘s irresponsible and it hurt us because people canceled their checks you know during the telethon.  It makes a difference and it hurt us and it hurt the credibility of the United Way and it hurt who I‘m on the board of. 

So yes, those things got under my skin a little bit.  But, in general, you know I said if it‘s only because—why are you doing this?  Matt Lauer asks why are you doing this?  He goes because I want to—you know because I care about the people and he wanted me to debate him. 

And I said if it‘s just about caring about the people I‘ll debate you on any other show but yours, period.  I‘d debate him right here, right now...

ABRAMS:  Well I will let him know that he‘s invited...

CLOONEY:  And we‘ve had that conversation and he said I‘ll debate you on Charlie Rose and then we had a—you know he had a conversation with Charlie a couple of weeks ago and said Rupert Murdoch won‘t let me and I think well that‘s interesting because you can go on any other show and talk about your book or do anything else.

ABRAMS:  The tabloids, on the one hand you have been telling some other actors, hey guys, you can‘t always win... 

CLOONEY:  Right. 

ABRAMS:  ... against them.  And on the other hand you‘ve been taking them on...

CLOONEY:  Right.

ABRAMS:  ... the tabloids.  How do you decide when to take them on and when not? 

CLOONEY:  Well there‘s—I think the way you do it is you make it not about you.  Here‘s the issues I have.  You‘ve been out and seen it around people.  You probably experience some of it yourself.  They can be incredibly unkind. 

ABRAMS:  Let‘s just say that I have not experienced it to the level that George Clooney has experienced it, to say the least...

CLOONEY:  But you‘ll understand that when you are not trying to catch me doing something stupid but you‘re trying to create me doing something stupid, you try to pick a fight with me or something like that, but I worry about trying to pass laws to ban these people because it starts to enter into that area of censorship and I‘m the son of a journalist. 

ABRAMS:  Are you the one though that a lot of people come to?  I mean do a lot of other actors have incidents and they say you know let me call George Clooney...

CLOONEY:  Oh that happens a lot. 


CLOONEY:  Because I think—I‘ve had—I had some success with some boycotts of magazines, not about the paparazzi as much, as just saying listen there are ramifications in these worlds where a company owns three or four different shows and one of those shows you participate in and the other show is using footage that‘s taken to harm you. 

So to me, that‘s an economic thing that I can participate in, which isn‘t censorship.  That‘s just saying OK, that‘s how we‘ll play ball. 

ABRAMS:  Well I saw that at one premiere a bunch of the paparazzi tried to do a protest against you and they all put their cameras up in the air or something?

CLOONEY:  The one thing that is sort of frustrating is that they always say well you need us and the truth is I‘ve never—no—it‘s never helped my career in a moment, a picture of me and “US” magazine.  That‘s never been an element of your fame. 

You know you‘re famous for going and doing the work and the work is what sort of drives your fame.  And the truth of the matter is they start taking your picture because you are famous and they can make a lot of money off of it and when I‘m not famous anymore, I go away and they will too. 

ABRAMS:  Is it true that Angelina and Brad are getting married at your house in Lake Como?

CLOONEY:  The thing is that story first came out, some guy sold it from Italy.  And I called up Brad and I said I‘ve got a funny idea and I said let‘s do a lot of like denying it and then I‘ll get a bunch of kids dressed up in tuxes and we‘ll set up a wedding at my house and they‘ll—everybody will spend money flying helicopters over the house and they‘re getting closer, and it‘ll just be kids dressed up in tuxes.


ABRAMS:  That wasn‘t my question by the way.  The rest of them were mine. 

We called the O‘Reilly show and passed along the offer to have him debate on this program.  You know shocker (INAUDIBLE) going to happen.  And I‘m also still waiting for—get that invitation to the big wedding.  Whatever. 

Coming up, the 1,000th death row inmate executed this morning.  Up next my “Closing Argument” on why this is a good time to review the death penalty as we know it. 

A lot of e-mails on this tape crucial to the Natalee Holloway investigation.  A lot of you are convinced on what you are hearing.  The “Dr. Phil” show responds.  We‘ve got their statement.

And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to help find missing sex offenders before they strike again.  We are in Idaho, Harold Edward Martin, 30, 5‘6”, 165, convicted of assault with intent to commit rape, considered a violent sexual predator, has not registered with the state since being released from prison on November the 7th

If you‘ve got any information, please contact the Idaho Bureau of Criminal Investigation, 208-884-7130.  Be right back.


ABRAMS:  My “Closing Argument”—early this morning, the 1,000th United States inmate was executed since the Supreme Court reinstated the death penalty in 1977.  It‘s not a cause to celebrate but a reason to evaluate.  I support the death penalty, but I think this is the time to remember that it should be the punishment of last resort.  I‘ve said before that prosecutors use the death penalty too often. 

It‘s no longer reserved for the worst of the worst and instead has become a garden-variety punishment.  That means more mistakes and less faith in the fairness of the sentence.  But since some prosecutors seem unwilling or unable to better choose which cases should qualify, maybe it‘s time to make it harder for jurors to impose it and the 38 states where the death penalty is an option.

Jurors generally have to weigh the aggravating and mitigating circumstances and determine whether the aggravating circumstances are the reasons to execute outweigh the mitigating ones are reasons not to.  Maybe the standard for death should be beyond any doubt rather than beyond a reasonable doubt.  And are we really comfortable with the fact that in five states, the death recommendation need not be unanimous? 

DNA has proved that a good number of people on death row were innocent, actually innocent, leading some states to reevaluate all of their death row cases.  And these death cases also clog the court system with appeals that take years and years.  I want to ensure the death penalty remains on the books but for serial murders, those who torture their victims, or kill children or clearly commit premeditated murder, the most heinous types of crimes. 

We have to make sure that the right person is convicted and for a penalty so severe that criminals ought to be the type of people most reasonable folks would want to execute.  Not the getaway driver in a botched robbery where someone else shot the gun.  For him is life without parole really a travesty of justice?  For the death penalty to survive it is going to have to adapt to changing times, getting it right, but not necessarily getting it as often. 

Coming up, we finally hear from Dr. Phil, at least the show regarding exactly what happened with those tapes in the Natalee Holloway case. 


ABRAMS:  We are back.  We have finally received a statement from the “Dr. Phil” show.  Remember yesterday and again today, we played all three copies of an interview tape with Deepak Kalpoe, a suspect in Natalee Holloway‘s disappearance.  It was originally played on the “Dr. Phil” show.

Remember there are two issues here, one, did Kalpoe say she did or no, she didn‘t when talking about whether he and the two other suspects had sex with Natalee and whether he said—quote—“you‘d be surprised how simple it was that night or the other night or how simple it would have been.”  We played “Dr. Phil‘s” version, the alleged original copy provided to us by Jamie Skeeters who did the interview and the copy given us—to us by the Aruban authorities. 

Dr. Phil‘s statement came in after we finished our segment on the tape.  Here it is. 

We were provided a raw tape by Jamie Skeeters, president of the California Polygraph Association, who conducted the interview.  Mr.  Skeeters confirms that Mr. Kalpoe did in fact say what was broadcast on the “Dr. Phil” show.  Subsequently, the “Dr. Phil” show submitted Mr. Skeeters‘ tapes to an independent forensic audio specialist who confirms that the substance on the raw tape is consistent with what was played on the “Dr.  Phil” show and that no change of the content in question took place. 

Specifically, in his expert opinion, the raw tape does contain Mr.  Kalpoe saying she did as well as you‘d be surprised how simple it was the other night.  The “Dr. Phil” show, of course, excluded unintelligible and irrelevant portions, which did not change the content.

I still—I listened to that tape, and again, I‘m not making accusations against the “Dr. Phil” show.  I‘m saying though when I listen to that—the whole tape, the one from Aruba and—it sounds to me like saying didn‘t and you know how easy it would have been.  Here it is again. 


SKEETERS:  I‘m sure she had sex with all of you.

KALPOE:  She did.  You‘d be surprised how simple it was that night.


ABRAMS:  She didn‘t—he looks—he kind of looks like he is shaking his head.  I don‘t know.  You know what?  I said it before; I‘ll say it again.  I don‘t think we are going to get an answer to this question definitively one way or the other.  And you know as I said before, if Dr.  Phil wants to clear the air, he‘s invited to appear on the program. 

That does it for us tonight.  Coming up next is “HARDBALL” with Chris Matthews.

Have a great weekend and I‘ll see you on Monday.


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