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'The Abrams Report' for December 8

'The Abrams Report' for December 8

Guest: Jan Handzlik, Sheri Annis, Sherry Bebitch Jeffe, Austin Sarat, Daniel Horowitz, Leslie Crocker Snyder, Michelle Suskauer, Ed Smart

DAN ABRAMS, HOST:  Coming up, Tookie William‘s lawyers take his case to California Governor Arnold Schwarzenegger in a last-ditch effort to get him off of death row. 

ABRAMS:  The co-founder of the Crips street gang is set to die next week for killing four people.  But Williams is still saying he didn‘t do it, and that his good works in prison should lead the governor to spare his life.  He‘s got some Hollywood hotshots on his side.  Will he and they be able to convince this Hollywood governor?
And a San Francisco cop under fire for making a video some are calling racist, sexist and homophobic.  We talk to his lawyer, a man who is back practicing law after his wife was murdered.  Our friend, Daniel Horowitz is with us. 
Plus, Elizabeth Smart‘s family outraged after an admitted pedophile puts Elizabeth on his Web site.  Elizabeth‘s father, Ed Smart, is here. 
The program about justice starts now.  
ABRAMS:  Hi everyone.  First up on the docket, the last time a California governor granted clemency to a death row inmate was when another actor-turned politician ran the state, Ronald Reagan.  The then governor spared the life of an inmate back in 1967, whose lawyers argued he was mentally ill. 
Well now another actor-turned governor is considering whether to save the life of Stanley Tookie Williams, who was convicted of four murders and happens to be the founder of one of the most notorious street gangs, the Crips.  He was convicted in 1981.  Now Williams‘ lawyers have criticized the credibility of witnesses in his case and in fact so did a U.S. district court judge and an appeals court judge, although, they did not throw out the conviction. 
Since he has been in prison, Williams and his supporters argue he‘s a changed man.  He‘s written a number of children books, encourages kid to stay away from gangs and violence and has even been nominated for a Nobel Peace Prize, although it‘s pretty easy to be nominated.  Hitler and Stalin made the list of nominees as well.
Williams also has a team of Hollywood supporters behind him, including actors Jamie Foxx and Mike Farrell and former gang member turned rap artist Snoop Dogg.  Williams‘ attorneys and prosecutors for the state each had a chance to make their case before the governor this morning.  Now we‘ll talk to one of Williams‘ attorneys in a moment, but first NBC‘s Jennifer London is in Sacramento where the meeting with the governor was held. 
Jennifer, exactly how did this work today? 
JENNIFER LONDON, MSNBC CORRESPONDENT:  Well, Dan, the meeting lasted a little over an hour.  And attorneys from both sides made their argument for and against clemency to California‘s governor, Arnold Schwarzenegger.  The meeting happened in private, behind closed doors and upon its conclusion, neither side was willing to give details as to what was said behind those closed doors. 
They did hold a brief news conference and we heard from one of Williams‘ attorneys, Peter Fleming.  Again, he would not give details as to what transpired during the meeting.  He only reiterated their position, their reason for clemency, saying Williams‘ life is one worth saving and that he has been redeemed.  But if you speak to attorneys representing the state of California, they will tell you that this petition for clemency is not about redemption.
JOHN MONAGHAN, DEPUTY DISTRICT ATTORNEY:  Mr.  Williams is not just pushing for clemency, folks.  You can bet your bottom dollar that between now and Tuesday, additional petitions will be filed by Mr. Williams‘s attorneys in both state and federal court, probably alleging all sorts of things, probably including total innocence.  Mr. Williams wants out of prison.  This has nothing to do with redemption.  He is saying what he needs to say so that he has the best chance of escaping the predicament that his actions got himself into. 
LONDON:  And while the clemency meeting was going on behind closed doors, inside the capitol, outside on the steps a gathering of supporter for Stanley Tookie Williams, no doubt here today trying to put pressure on Governor Schwarzenegger who now finds himself in a very tough political position.  Dan, no word as to when Governor Schwarzenegger will announce his decision. 
ABRAMS:  All right, Jennifer London thanks a lot.  We should point out that each side got 30 minutes here.  The governor sort of created his own rules and said all right, I‘m going to give you each 30 seconds -- 30 minutes.  If you want to save some of that time to rebut the other one, that‘s fine. 
We don‘t know exactly what went on behind closed doors.  Former prosecutor and defense attorney Jan Handzlik is working with the Williams‘ team, and he joins me now.  Thanks a lot for coming on the program.
Now I know you were not inside.  I do know, though, that you‘ve spoken to your team.  You don‘t want to give details as to exactly what was said, understood.  Give us a general sense, though, was this an agreement about redemption or was this an argument about innocence? 
JAN HANDZLIK, LAWYER FOR STANLEY TOOKIE WILLIAMS:  It was an argument really that covered both issues.  Certainly the redemption issue is the one that‘s front and center in the petition that we filed and obviously that sets forth the good works that Mr. Williams has done over the past dozen or so years. 
But also in the petition and in our reply brief, we stress the inadequacy of the evidence at trial.  The fact that there are questions about the scientific evidence.  Not urging innocence, but rather to demonstrate to the governor that there are doubts. 
ABRAMS:  Because the concern about redemption is, is it not, that no one has ever been released from death row because of what they did.  I mean death row is not supposed to be a place you go to rehabilitate yourself. 
HANDZLIK:  Well, certainly as far as the judicial system is concerned, that‘s absolutely correct.  But remember that this process, the clemency process is apart from and in addition to the court process.  This is a process that takes into consideration other issues.  One of which would be the excellent work that Mr. Williams has done over the years.  The governor is literally entitled to consider anything with respect to this decision. 
ABRAMS:  Let me ask you this—this is one of the defense team members holding a press conference today.  I want to ask you a question about this.  Let‘s listen.
PETER FLEMING, ATTORNEY FOR STANLEY TOOKIE WILLIAMS:  I‘m not addressing how I feel how the meeting went.  I‘m trying to make this as amusing and as irrelevant a press conference as I possibly can. 
ABRAMS:  Now why make the press conference irrelevant?  I mean your point is that this is extra judicial.  Meaning, this is really not about the courts, it‘s about the governor saying, you know, this is a special case.  The governor reports to the people of the state of California.  To make the press conference as irrelevant as possible doesn‘t seem to me to be very smart. 
HANDZLIK:  Well, if one is going to take that position, I suppose there shouldn‘t be a press conference at all.  I think Peter‘s approach basically and I am sure the D.A.‘s approach, we realize that there is a jury of one, and only one person, and that‘s the governor.  And by speaking to the media, by advocating Mr. Williams‘ position in front of cameras or revealing what took place in the clemency hearing itself doesn‘t really cater to that particular objective. 
ABRAMS:  All right.  The question everyone is asking is what is Arnold Schwarzenegger going to do?  If you could stick around for a moment, Mr.  Handzlik.  I want to bring a couple of people who are going to know or at least have some answers.  Media consultant, former press secretary for Governor Arnold Schwarzenegger, Sheri Annis joins us, political scientist from the University of Southern California, Sherry Bebitch Jeffe.  I don‘t know how you pronounce that name...
ABRAMS:  All right...
ABRAMS:  Bebitch, all right, and professor of law and politics...
ABRAMS:  ... at Amherst College, Austin Sarat, who is also the author of “Mercy on Trial: What It Means to Stop an Execution.” 
ABRAMS:  Thank you all very much for joining us.  A couple of tricky names there.  All right, but Sheri Annis, let me start with you.  Look, you‘ve worked for Arnold Schwarzenegger.  You know Arnold Schwarzenegger.  Do you think there is a chance he‘s going to grant clemency here? 
certainly hope not.  The truth is, none of us know what he‘s going to do...
ABRAMS:  Right.
ANNIS:  ... so I‘m not going to pretend as though I do.  I think that his religion will come into play here.  I think he‘ll talk to Maria about this, because in my view she tends to be the more religious one here, but he is—he does believe in the death penalty as does two-thirds all of California both—and a majority of both Democrats and Republicans. 
What I don‘t think is that he‘s going to let the celebrity aspect of this influence his decision.  If anybody is not to be dazzled by a celebrity, it would be Arnold.  So I don‘t think that he‘s going to grant clemency.  He did not in the previous two cases.  But I do think he is being smart about this by holding these meetings, being diplomatic and sensitive to the situation. 
ABRAMS:  It seems to me it‘s a lose-lose situation for him, for him to grant—as a political matter, he gains nothing by granting clemency, right?
ANNIS:  He‘s certainly going to take heat either way, but yes, granting clemency will definitely be more politically disastrous, but the truth is if you really believe someone...
ANNIS:  ... should live—if you really believe someone should live, you don‘t pay too much attention to that.
ABRAMS:  Right.
ANNIS:  But I don‘t—I think this is a textbook case and he will see it as that of someone who could be put to death. 
ABRAMS:  Professor, I think you‘re going to disagree with me.  I don‘t think there is a chance he‘s going to grant clemency.  Why do you think I am wrong?
SHERRY BEBITCH JEFFE, UNIVERSITY OF SOUTHERN CALIFORNIA:  Oh I disagree that it‘s a political negative.  It‘s a facto if he does grant clemency because Arnold was elected as a centrist.  He was elected with the votes of Independents with Democrats, as well as...
ABRAMS:  Right.
JEFFE:  ... Republicans.  And although polls indicate that Californians still favor the death penalty by about two-thirds, they also indicate that when given a choice between the death penalty and life (INAUDIBLE) without possibility of parole, they would chose life imprisonment without...
JEFFE:  ... possibility of parole...
ABRAMS:  But this is not a question of the system...
JEFFE:  ... so we don‘t even know what the political...
ABRAMS:  Wait.  Wait.  Wait...
JEFFE:  ... arithmetic is. 
ABRAMS:  Wait.  Wait.  But Arnold Schwarzenegger is not making a decision here about the system and he‘s not asking—being asked to decide generally about the death penalty.  He‘s being asked to decide whether to effectively overrule the courts and say this is a case that is so special, that I‘m going to...
ABRAMS:  ... take him off death row. 
JEFFE:  That is exactly what he is being asked to do. 
ABRAMS:  Right.  And so you‘re saying—so it‘s a separate question than the one you are suggesting.  So assuming that...
JEFFE:  No, not really. 
ABRAMS:  Of course it is. 
JEFFE:  You can‘t take politics out of it...
ABRAMS:  He‘s not being asked...
JEFFE:  ... Dan.  No...
ABRAMS:  ... it‘s all about politics.  That‘s right and...
JEFFE:  That‘s what I‘m saying. 
ABRAMS:  I understand but you‘re asking the wrong question.  The question is not...
JEFFE:  I wasn‘t asking a question.
ABRAMS:  ... do people support the death penalty.  The question is not...
JEFFE:  Yes...
ABRAMS:  ... the majority of voters support the death penalty.  The question is will the majority of voters support Arnold Schwarzenegger making an extra judicial move here and effectively overruling the courts and moving this man from death row to life in prison without parole.  I will guarantee you and I don‘t know, I haven‘t seen the polling on this, I‘ll bet anything that it‘s 75 percent plus would say that the governor shouldn‘t do it. 
JEFFE:  If it is framed in those words, I‘d have to agree with you. 
But that is not exactly what the situation...
ABRAMS:  Oh I‘m sorry, am I wrong...
ABRAMS:  Maybe I have it all wrong. 
ABRAMS:  I thought the governor was being asked about clemency...
JEFFE:  Now I didn‘t say that—come on.  Don‘t be catchy.  Clemency is a very special individual action, and it is provided for within the Constitution.  So it‘s not extra judicial, it is a part of the job description, if you will, of the governor of the state of California.  And he will make his decision, whatever it is, on the basis of many factors and Sherry outlined some of them.
ABRAMS:  All right.  Let me take a quick break here because I want to get to Austin Sarat.  If anybody knows about clemency, Austin Sarat knows a lot about it.  So we‘re going to talk to him about you know could this happen?  I mean this would certainly be a first, I think, where someone would, if the reason were rehabilitation on death row, taking him off death row for that reason, I think it would be a first, but I‘ll ask him.
Everyone is going to stick around.  I‘ll have more on the Tookie Williams case.  Again, the governor heard the appeals today. 
And a San Francisco cop in big trouble after making a video that seems to be making fun of everyone from minorities to gays to women and there is more.  He‘s calling it art.  San Francisco‘s mayor calls it offensive.  Daniel Horowitz is the cop‘s lawyer and he‘s with us. 
And a judge throws out Debra Lafave‘s plea deal.  Remember, she‘s the teacher who confessed to having sex with her 14-year-old student.  Well, we thought she wasn‘t going to be serving any time.  What does this mean? 
Plus, Elizabeth Smart‘s face on a pedophile‘s Web site—that‘s right
after the ordeal that she endured being kidnapped, her family is furious.  Her father, Ed Smart, is back with us.   

Your e-mails  Please include your name and where you‘re writing from.  I respond at the end of the show.
STANLEY TOOKIE WILLIAMS, AWAITING EXECUTION:  It would be craziness of me to express remorse for a crime or crimes I did not commit.  That would be totally against my conviction.  It would be wrong to express remorse for something I didn‘t do. 
ABRAMS:  Professor Sarat from Amherst has written a book on this topic.  All right, Professor, when you are not willing to admit that you committed the crime and there is no overwhelming evidence of actual innocence, it is really hard to get clemency. 
EXECUTION”:  That is right, Dan.  Clemency in capital cases is very rare.  In the last 10 years, with the exception of what George Ryan did when he was governor of Illinois, there have been two-dozen clemencies in capital cases.  And almost all of them are on grounds of demonstrated innocence. 
So the odds of getting clemency are very long.  If you go back 40 years and look at the decade of 1954 to 1964 there were 198 clemencies, so there are about 20 a year.  Now there are about two a year.  So the odds in this case are very long. 
ABRAMS:  What do you make, Professor, of the fact that they seem to be arguing kind of a combination?  They are saying look, the trial had real problems.  The witnesses weren‘t credible and look at what he has done since he has been on death row. 
SARAT:  Generally, the arguments about redemption begin with an acknowledgment of guilt and a plea for forgiveness and in a sense I think the Tookie Williams case is a very complicated one and a hard one because in a sense they are trying to ride two horses at once.  They‘re trying to ride the horse of innocence and also claim redemption and that is a very hard case to make. 
Look, the truth of the matter is this is really not a case about politics.  You are absolutely right.  This is an extra judicial act.  It‘s an act of an executive.  And the decision about whether to grant clemency isn‘t a matter of conscience.  The courts have said that governors can grant clemency for good reason or bad reason or no reason at all.  And whether or not Schwarzenegger decides to grant clemency will tell us as much about Arnold Schwarzenegger‘s conscience as it will about who Tookie Williams is and what he has become on death row.
ABRAMS:  All right, so Mr. Handzlik, very quickly, as an attorney for Tookie Williams, is your team optimistic that clemency is going to be granted? 
HANDZLIK:  Well we feel good about the arguments that have been made and also are very appreciative that the governor has held this hearing.  I agree with the professor, the last speaker on all of those points, this is not a political decision and we feel strongly that the governor will make this on the basis of the facts in this case. 
ABRAMS:  All right.  Professor, very quickly, do you think that the governor is going to grant clemency...
JEFFE:  Which professor? 
ABRAMS:  Professor Bebitch...
JEFFE:  Oh, I think there is a slight chance that he will, but I think the atmospheric of the political environment in this state weighs against it. 
ABRAMS:  And Sherry Annis, I think you agree with that, right? 
ANNIS:  Whether it is political or otherwise, I think you come to the same conclusion.  That any good he has done does not cross cancel four murders, heinous crimes. 
ABRAMS:  All right.  We shall see.  I am sure that the arguments are both sides were pretty persuasive.  And if you come out even, Tookie loses and that is the problem.  All right, Sheri Annis, Sherry Bebitch Jeffe -- 
I think that‘s the correct pronunciation...
JEFFE:  It‘s perfect.
ABRAMS:  ... Austin Sarat and Jan Handzlik, thanks a lot. 
ABRAMS:  Now to San Francisco where a 10-year veteran of the police force there is one of at least 20 officers who could be in big trouble over some videotapes that the mayor says are offensive to minorities and women. 
NBC‘s Peter Alexander has the story. 
UNIDENTIFIED FEMALE:  Good morning, Captain. 
PETER ALEXANDER, NBC NEWS CORRESPONDENT (voice-over):  San Francisco police officers caught on tape. 
ALEXANDER:  From suggestive scenes like this one called, “Traffic Cop Gone Wild”...
ALEXANDER:  ... to a mock hit and run between a patrol car and an African American homeless woman.  These videos were supposed to boost officer morale, produced for a captain‘s retirement party.  Instead, they are a public relations nightmare for both the city and police. 
CHIEF HEATHER FONG, SAN FRANCISCO POLICE:  This is a dark day.  An extremely dark day in the history of the San Francisco Police Department. 
ALEXANDER:  Mayor Gavin Newsom denounced the tapes as racist, sexist and homophobic. 
UNIDENTIFIED MALE:  We are going to make some dramatic changes in the San Francisco Police Department. 
ALEXANDER:  The online videos were never meant to be seen outside the force.  They were produced by officer and videographer Andrew Cohen.  The 10-year veteran denies doing anything wrong. 
UNIDENTIFIED MALE:  That‘s all it was, was laughing at ourselves.  You cannot watch that DVD and think anything else. 
ALEXANDER:  The police chief did, ordering at least 20 officers suspended for their alleged involvement.  Cohen‘s attorney says the punishment is unjust.
DANIEL HOROWITZ, CRIMINAL DEFENSE ATTORNEY:  They are making fun of themselves in these videos.  They are raising very important issues the same way Chris Rock does when he makes very biting cutting comments, but nobody calls Chris Rock a criminal. 
ALEXANDER:  Today the mayor is expected to launch a panel to review the entire department‘s actions. 
Peter Alexander, NBC News, Los Angeles. 
ABRAMS:  You just saw him on the video, now Andrew Cohen‘s attorney Daniel Horowitz joins us.  It‘s the first time we have had Daniel back on the problem since we spoke with him not long ago after his wife‘s murder. 
Daniel, good to see you. 
HOROWITZ:  Good to be here, Dan.  Thank you. 
ABRAMS:  All right.  Let‘s start—I will ask you later about how you are doing, but let me—let‘s talk about this case first.  Let‘s get right to the bottom of it.  First of all, it does seem to me—I mean look, it was—first of all, it was an idiotic move of these—of the cops to put this on the Web, wasn‘t it? 
HOROWITZ:  It was a mistake to put it where it was technically on the Web, but you couldn‘t find it in Google or any search engine, Dan.  It hadn‘t been indexed, so unless you knew the exact...
ABRAMS:  Right.
HOROWITZ:  ... Web address, you couldn‘t view it. 
ABRAMS:  But for some reason...
HOROWITZ:  And Dan, only cops knew that address. 
ABRAMS:  Yes, but for some reason they didn‘t get the fact—they are San Francisco cops.  Of any city in the country, you want to cause some trouble by doing anything even remotely problematic, it‘s San Francisco. 
HOROWITZ:  Right.  I mean Dan, first of all, let‘s just say Andrew Cohen takes responsibility for putting it on the Web.  The other officers are not to blame for that, they should be back on their jobs.  But bottom line is this is a commentary on what‘s wrong with the San Francisco Police Department.  It is the officers saying hey, this is how we feel.
We hurt.  We laugh.  We are human, and they‘re just talking among themselves.  And the real failure is that the chief doesn‘t listen to their voice.  When she hears their voice, she tries to fire them and punish them instead of saying wow, we‘ve got some problems, let‘s fix them. 
ABRAMS:  Look, I think the authorities, my friend Gavin Newsom in San
Francisco and some others are vastly overstating the significance of this
tape.  But with that said, you know it certainly—you made the comparison
said Chris Rock makes this kind of biting commentary all the time. 
Look, Daniel, these are police officers.  They‘re not comedians.  They have got a different obligation.
HOROWITZ:  True.  But you know Dan, Andrew Cohen was authorized by the chief to make videos.  And for the last eight years he has made videos that have run on major stations in the bay area.  Now he is making videos under the same authority, but now it‘s cutting and biting, and it is critical of the administration and it shows the heart of the police officers. 
If Gavin Newsom didn‘t like the content he should have said take it off the Web and get back to DVDs.  That‘s actually what Andrew Cohen was doing when for some reason, Mayor Newsom, who I liked until now, and the chief, published these nationally.  So if they didn‘t like them, why did they put them out throughout the airwaves when they were private up until that point...
ABRAMS:  Well because they‘ve got to show why they are doing what they are doing.  That‘s why.  Because they‘ve got to say look, if we‘re going to be pulling a bunch of police officers off the force, we got to show why we are doing it. 
And Daniel look, how do you—and I don‘t want to go through point-by-point everything on the tape, because some of it I find to be actually humorous and entertaining, and other parts of it are you know somewhat offensive, I think, and certainly stupid.  What‘s with the business about licking the lips?  How is that—the lip-licking part somehow making fun of themselves? 
HOROWITZ:  Well you know Dan, I think first of all what you have there are a lot of women licking their lips in this Charlie Angel sort of imitation.  And yet these are very strong, powerful self-assertive courageous women.  These are police officers who patrol very dangerous streets, alone at times, and risk their lives.  They are the total opposite of Charlie‘s Angels of that ridiculous image.  So they are actually mocking the stereotype because everyone in the station knows how courageous and strong they are...
ABRAMS:  All right...
HOROWITZ:  ... so if you‘re in the group that knows, there‘s nothing offensive about it.
ABRAMS:  Here is Gavin Newsom talking—oh, this is a gigantic wake-up call.  We‘ve known what lies beneath the surface.  We‘ve talked about changes.  We‘ve certainly made plenty of changes, but now this calls for clearly an order of magnitude shift.
Oh come on, Gavin.  Easy.  Easy.  It‘s not that big a deal.  But look, it was dumb.  It was stupid and I don‘t know.  We‘ll see what happens.  Daniel, why—very quickly, why did you decide to take this case?  I mean you know everyone thinks of you as the liberal, lefty lawyer.
HOROWITZ:  Well Dan, you know I‘ve known Andrew Cohen for 26 years as a friend.  I knew him when he quit a police department because he believed there was racism in the department and he couldn‘t stay there.  So when he got accused of things that were totally unfair, I had to basically come back and protect him, so here I am. 
ABRAMS:  All right.  Daniel, I think you‘re going to stick around for a minute, right? 
ABRAMS:  All right.  I‘m sorry—is my producer telling me Daniel is leaving?  All right, he‘s going to stick around. 
Coming up, because I want to ask Daniel about how he‘s doing in the wake of everything that happened with his wife and how is going back into practice.  Be right back.

HOROWITZ:  Can I be a defense attorney again?  Well I think I said some things that are fair towards people accused of a crime.  But could I stand next to somebody who I knew committed a murder like this?  I don‘t know.  It‘s—you know, it‘s pretty—right now, it would—I guess I‘d have to say it would be a pretty hard thing to do. 
ABRAMS:  That‘s our friend Daniel Horowitz only days after his wife was murdered in their home.  He‘s back with us for the first time talking about another case that he‘s been involved in. 
Daniel, first let me ask, how are you doing? 
HOROWITZ:  Dan, there is no answer.  All I can say is when Andrew needed me, I was able to do the shows.  And it‘s almost as if—I am just grateful.  I am just grateful, I guess, to be able to be here.  And I‘d like to take this opportunity really just to thank you and thank the people who have sent me cards and e-mails.  And other than that, there‘s—inside of me there is nothing to say but—except that I am grateful to all of you. 
ABRAMS:  Does going back to work help you keep your mind on other things?  Help you try to get your life back together? 
HOROWITZ:  I think, Dan, you have choices that you make in life and my choices are to get back to work when Andrew Cohen needed me to go back and do TV, which I had not planned to do, and other people have other choices, probably genetically ingrained in them or from their upbringing, these are my choices and I don‘t know what is best, I just know what I am doing...
ABRAMS:  And I know we are not going to talk specifics about the investigation, so do you think you will be able to go back to being a criminal defense attorney, representing murderers and others like that?
HOROWITZ:  Dan, I think those answers will be revealed to me step-by-step.  Just as today, I‘m on your show and I had not planned to do TV before last night at 6:00 when I learned about the press conference on Andrew‘s case, here I am.  So I think things will be revealed to me about myself and my life, and I will just have to do the best I can with what is put in front of me. 
ABRAMS:  I can‘t tell you, Daniel, how great it is to see you being feisty and sticking up for your clients, and the way we all know you and think of you.  And I know how hard this has been for you, the last month and a half, and I just want to let you know that I think I speak for my viewers when I say this, that it‘s really nice to see you fighting the fight, right or wrong, and thanks for coming back on the program.
HOROWITZ:  Thank you, Dan. 
ABRAMS:  All right.  Let‘s switch gears here. 
Debra Lafave may be going to prison after all.  Remember, two weeks after the 25-year-old Florida teacher pled guilty to two felony counts and admitted in open court she had sex with a 14-year-old middle school student.  A Florida judge has thrown out her plea deal. 
Under the terms of the deal, Lafave would not have had to serve time, was only sentenced to three years of house arrest, seven years probation.  But a judge in a separate Florida county where Lafave also faced charges said this afternoon, no deal, set a trial date of April 10 for Lafave. 
Remember the victim‘s mother had pushed for the deal so that her son would not have to testify.  Before entering into the deal, Lafave‘s attorney had said he planned to use the insanity defense if he went to trial. 
JOHN FITZGIBBONS, DEBRA LAFAVE‘S ATTORNEY:  She also serves from a very serious mental illness and we were prepared to explain that at trial and I think any juror who would have listened to this defense would have had a great deal of sympathy and understanding for her.
ABRAMS:  Well now it‘s possible I guess the jurors are going to get a chance to hear that—is that really going to happen?  I mean they cut a deal and everything.  What happens now?
Joining us now former New York State judge, Leslie Crocker Snyder, and Florida criminal defense attorney Michelle Suskauer. 
All right, Leslie look, we‘re talking about two separate jurisdictions here.  I think the prosecutors thought they had dealt with all of the charges here.  What do you make of this judge‘s decision? 
LESLIE CROCKER SNYDER, FORMER NY STATE JUDGE:   Well you know it‘s fairly unusual for a judge, Dan, to reject a plea deal, but it does happen.  I don‘t know if he had the opportunity to have the same plea deal or was going to enter into an analogous one or encompass that plea deal...
ABRAMS:  It was supposed to encompass it.  It was all...
SNYDER:  Right.
ABRAMS:  It was supposed to cover all of the charges that she was facing. 
SNYDER:  OK, but you know every judge has the right ultimately to reject the plea deal and normally you don‘t.  But if you feel that it shocks the conscience, you won‘t take it and I have turned down plea deals myself, but it is quite unusual.
I think here he probably felt that there was something offensive about this woman not going to jail.  That was his belief, and he wants it to go to trial because the plea is not acceptable to him.  And ultimately it does have to be acceptable to the court.  But again, I repeat it‘s unusual to turn down a plea deal.
ABRAMS:  All right, so Michelle, what do you do now?  If you‘re Debra Lafave‘s attorney, you thought to yourself I had a great deal going.  I thought my goodness I had saved this woman from having to serve any jail time and now another judge from another county is saying not going to accept it. 
MICHELLE SUSKAUER, CRIMINAL DEFENSE ATTORNEY:  You know, I just can‘t think that there is going to actually be a trial in another county.  The state was not willing to sit on this victim, really and pursue it.  And I think that the state‘s probably going to you know drop the charges. 
I just can‘t see this case going to trial in another county.  They got her to admit it.  They got her to accept responsibility, to admit that sentence and she‘s going to be doing, you know, a couple of years in house arrest, so I just can‘t see that this case is going to go to trial. 
ABRAMS:  That‘s interesting, Leslie.  What do you think about that possibility...
SNYDER:  Well...
ABRAMS:  ... of them saying all right, fine, then we‘re just going to drop the charges in that other county. 
SNYDER:  The only way that‘s going to happen, Dan, is if the victim‘s mother who was reluctant to have the victim testify, absolutely refuses to allow and the state decides not to subpoena the victim, which they can do, because I don‘t believe there would be any incrimination issue. 
So I find it hard to believe, but it is always a possibility.  I mean if the victim and the victim‘s family feel strongly enough, the state could back off.  I think it‘s—it would be unusual. 
ABRAMS:  Let me read—the victim‘s mother said, Debra Lafave needs to be punished.  What she did was wrong and I believe that she is being punished.  There is no guarantee that if we had gone to trial that she would go to prison. 
I mean look, the prosecutors came on this program, Leslie, and made it very clear to us they wanted to go to trial.  They weren‘t happy with this plea deal, but felt they had no other choice. 
SNYDER:  Well if you say that, and unfortunately I missed that part of the program, Dan, then I would say that it is possible they‘d back off.  But more likely they will probably use their subpoena power and hopefully persuasion powers to get the victim to testify. 
ABRAMS:  I mean, Michelle, it was a light sentence.  I mean you know only house arrest, right? 
SUSKAUER:  It was—yes and we had this whole conversation, Dan, about equality and how men are treated versus women.  I‘m telling you if they didn‘t want to do it in Hillsboro County, and this is the deal that they gave her, they‘re going to drop, they‘re going to back off, and we‘re not going to see the charges go forward in another county.  That‘s my prediction. 
SUSKAUER:  I just can‘t see it happening. 
ABRAMS:  Leslie...
SUSKAUER:  They‘re not going to make this kid come into another county.
ABRAMS:  We talk about this on this program a lot, Leslie.  I don‘t know that you‘ve ever chimed in on it.  What do you think about the double standard.  The fact that it seems that sometimes when these attractive women have sex with boys, they are treated differently than a guy having sex with a girl? 
SNYDER:  I think it is more a question of the age differential.  I think 14 and 15, while it certainly should not happen, so please don‘t misunderstand what I am saying, is not as offensive to society as when an older man is having sex with a 10-year-old or an 8-year-old. 
ABRAMS:  What about an older man...
ABRAMS:  What about an older man with a 14-year-old girl versus older woman with a 14-year-old boy?
SNYDER:  Well I think basically it should be treated equally.  It should be analogous and if there is inequality of treatment, that‘s something else.  But I think there is another question here...
SNYDER:  I mean we have a consensual issue.
SNYDER:  We have a—do we have a coercive situation?  Did this boy feel that he had to have sex with her as attractive as she is because she was his teacher.  These are things I don‘t know the answers to...
ABRAMS:  We got to wrap it up.  I predict that there will be no trial, that she will serve no time.  I think Michelle Suskauer is right on this one...
ABRAMS:  We‘ll see.  Judge Snyder, Michelle Suskauer, thanks a lot. 
SNYDER:  Good to see you, Dan.
SUSKAUER:  Thank you. 
ABRAMS:  Coming up, this is pictures of Elizabeth Smart.  Remember Elizabeth?  She was kidnapped nine months.  Posted on a pedophile‘s Web site.  Her father joins us next. 
And later, a Christmas tree, a holiday tree, whatever you want to call it.  Come on.  Is this really a cause for a natural debate? 
ABRAMS:  Coming up, pictures of Elizabeth Smart appear on a pedophile‘s Web site.  Her father joins us next.
ABRAMS:  Elizabeth Smart‘s father is fuming after discovering his daughter‘s pictures were posted on a pedophile‘s Web site.  Remember the Smart family is still recovering after Elizabeth was taken from her bedroom in 2002.  She was rescued nine months later just miles from her Utah home with a homeless couple, Wanda Barzee and Brian David Mitchell both charged with kidnapping and sexually assaulting her. 
And it was here that Elizabeth‘s photos were featured on a Web site dedicated to young girls who had been abducted.  Those who have been found, those who have been murdered, those who were still missing. 
Lindsay Ashford is a self-proclaimed pedophile and he runs the site.  On his personal Web site he explains himself saying I‘ve been bestowed with the gift of girl love.  I have a very strong conviction that I should not be forced to hide my sexual orientation as a pedophile.  I would never knowingly do anything to cause harm.  To come to young people.  I have broken no laws, therefore I should have the freedom to openly affirm my orientation.
He goes on to say to see a young girl is indeed to see beauty in all of her grace and splendor.  Therefore, for me, being a girl lover is nothing less than striving to commune with beauty itself.  (INAUDIBLE)
Joining me now is Elizabeth‘s father, Ed Smart.  All right, Ed, thanks for coming back on the program. 
ABRAMS:  What did you make of this when you first heard about this and saw this Web site? 
SMART:  You know I saw it and then when you get the message of what it is, it just—it‘s outrageous.  Because I think that the fact that he is coming on saying that he‘s a girl lover, you know I think that he is going to be one that eventually will assault.  And he‘s saying that you know we should—people should accept this lifestyle. 
That you know he‘s entitled to his own feelings, and he is being very open about it.  And I think that when you go back and you look at how many pedophiles have assaulted children before they are ever caught, you know it‘s incredible.  And for him to have all of these—it wasn‘t just Elizabeth‘s.  There were numerous children on there, as you said, that have been assaulted or murdered or you know had heinous crimes done to them and you know they are beautiful, young women. 
ABRAMS:  How did you...
SMART:  And...
ABRAMS:  How did you find out that her pictures were on the site? 
SMART:  A local ABC affiliate station here called me up and told me that they were—that they had this Web site and would I care to comment on it.
ABRAMS:  And I understand that the guy has somehow taken the pictures down.  Do you know why?
SMART:  Well I know that two of the pictures he had that we had of
Elizabeth were copy written, so I think that you know there are certainly a
potential suit there and I was glad that he did take them down.  I think he
you know, you look at this issue, and it‘s really so much bigger. 

It‘s like the sex offender bill that we currently have in Congress and in the Senate.  And I would just, you know, for a holiday gift, I would encourage all the senators and all of the House of Representatives to please put together that bill and make that happen.  I think that we have to basically take this issue and look at it and address it from all sides. 
ABRAMS:  Did Elizabeth know or does Elizabeth know that her pictures were on this site?
SMART:  Elizabeth does know that these pictures were on a site.
ABRAMS:  And what was her reaction? 
SMART:  She was sick.  She was mad.  You know, what gives him the right to, you know, to do this.  And you know, it‘s just one more thing. 
ABRAMS:  She is almost graduating from high school.  It‘s hard to believe. 
SMART:  It‘s amazing.  It‘s wonderful.  She is doing just great. 
ABRAMS:  Yes, how is she doing?  I mean tell us.
SMART:  She is you know loving life, getting prepared to—she is trying to determine where she is going to go to school and going to be working this spring.  Just, you know, really, really enjoying life. 
ABRAMS:  And how about the little hero, Mary Katherine? 
SMART:  She‘s terrific, too.  She—the two of them actually have been doing a fair amount of playing together on their harps and they‘re just terrific. 
ABRAMS:  Ed...
SMART:  Of course, I‘m very proud. 
ABRAMS:  It‘s good to see you with a big smile on your face, Ed.  I‘m glad they took down these pictures, and so this has been resolved to a certain degree.  But I think it‘s important that you‘re calling attention to this because you‘re right.  I think we‘ve got to watch people like this.  And that‘s why we do, for example, our segment where we are always trying to find missing sex offenders who haven‘t registered. 
SMART:  Absolutely.
ABRAMS:  Same reason.  All right.  Ed Smart, good luck.  Please send our regards to Elizabeth and the rest of the family. 
SMART:  Thank you. 
ABRAMS:  Coming up, the so-called war of the trees.  Call it Christmas, call it holiday, call me crazy, but I don‘t care what you call them.  It‘s my “Closing Argument”. 
And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to help find missing sex offenders before they strike.  Our search in Illinois resumes. 
The authorities need your help finding Michael Carter.  He‘s 31, 5‘6”, 219, convicted of aggravated criminal sexual assault and aggravated kidnapping.  He‘s not registered with the state. 
If you‘ve got any information, that‘s the number, 888-414-7678.
ABRAMS:  My “Closing Argument”—it is just a tree.  Whether it is called a Christmas tree or a holiday tree, or even if you want to call it a Hanukkah bush.  A few people are trying to get the rest of us riled up over what to call and where to place a festive tree decorated with colorful lights and ornaments this time of year. 
From local debates over whether the trees can be displayed in public buildings, to the semantic debate in Washington over whether to call the national tree a holiday tree or a Christmas tree.  A few on both sides are trying to make a big redwood debate out of what should be a little fern. 
Who cares what it‘s called?  Some are horrified about calling it a holiday tree because they feel Christmas is being censored or secularized, while others complain that just the vision of the tree or of Santa makes them feel excluded because it‘s a divisive religious symbol.  Give me a break.
I assume I am not alone when I say I just think the tree or the bush or whatever you call it looks nice in many places this time of year.  Last time I checked there was no reference to the Christmas tree in any holy book.  Sure it‘s associated with Christmas.  It‘s also true the tree has become secularized in the United States, much to the chagrin of some.
I start to think some just want to complain for the sake of complaining.  That on the one hand they shriek it should be called a Christmas tree!  And yet on the other hand, they defend keeping it in public places by saying (INAUDIBLE) it‘s not really that religious.  (INAUDIBLE) Remember, we‘re not talking about any aspect of the true history of the religious holiday. 
This is not about crosses or nativity scenes.  In fact, the tree is a relatively recent addition to the Christian celebration of Christmas here in the U.S.  And why don‘t we hear these ferocious debates over the Easter bunny.  If you want to put up a nice looking Hanukkah menorah or Kwanzaa next to it, fine.  Just make sure it is not one of those ugly faded plastic menorahs where the lights don‘t work. 
It‘s legitimate for Jews to complain if you‘ve got a beautiful nativity scene next to one of those decrepit looking menorahs.  But does it really matter what we call the tree?  It‘s a Christmas tree.  It‘s a holiday tree.  To some just decorative, to others it‘s Christmas, but let‘s just agree to see it our own way.  It‘s the holidays for all of us.  Let‘s try to keep up the holiday spirit.
Coming up, air marshals shoot and kill a passenger, said he had a bomb.  I say they did what they had to do probably.
ABRAMS:  We‘re back.  I have had my say, now it‘s time for “Your Rebuttal”.  Last night air marshals shot and killed an American Airlines passenger in Miami after he said he was carrying a bomb.  I said the fact that he may have been mentally disturbed doesn‘t mean that the air marshals did anything wrong. 
Jeff from Union Springs, Alabama, “It amazes me that you still defend them blindly in matters of authority over the masses before the facts are even known.  If it were two civilians involved, I‘m certain your perspective would be different and the shooter would be getting the short end of it.”
Well that‘s right, Jeff, but it would be because civilians don‘t have the right to protect the public as the authorities do.  It is different. 
Paula says she has bipolar disorder.  From Santa Cruz, California, “I don‘t understand how the people closest to this man allow him to travel on a highly vulnerable venue as an airplane knowing that he has not taken his medications.”
Martin Kildare from Stone Ridge, New York, “The air marshals obviously thought this guy was able to sneak a bomb on the plane.  So much for being safer.”
The other night a new study suggests teen smoking in the movies encourages teens to smoke.  Now the authors are asking that movies with smoking be rated R.  I said I don‘t get why it‘s any different than a lot of other things that are bad for kids and movies like eating too many potato chips or riding motorcycles. Plenty of e-mails on this one.
Long-time smoker Lisa Jordan from Birmingham.  “Every warning should be put on everything there is about smoking.  The government should take cigarettes off the market.”
Lisa, at least that‘s an honest assessment.  But I fear this is just a backdoor effort to criminalize cigarettes. 
In Black Forest, Colorado, Sigrid Wyly, “Is there no portion of our lives that government or civilian do-gooders are not going to intrude?  Cars, alcohol, peanuts, cholesterol, MSG, bees and any number of things that kill or injure thousands.  Why is smoking the only villain?”
And Joyce writes, “Why not R-rated movies for beer and alcohol consumption shown in the film?  I‘ll decide what movies my kids should see.”
And I referenced a lot of other things that are bad for you in movies, like riding motorcycles.
Alan Guest (ph) in Reno, Nevada, has a particular affection for motorcycles.  Says “What‘s the deal about your comparison between motorcycling and smoking?  Abusive smoking causes death.  Motorcycling is affordable transportation on an invigorating recreational sport—or an invigorating recreational sport.”
It is.  But come on, you know my point.  It‘s also the idea that it can also be dangerous.  The same point with alcohol. 
E-mails abramsreport—one word --  We go through them at the end of the show. 
Coming up, tonight on “SCARBOROUGH COUNTRY”, they‘ve got a big exclusive.  Remember the story of the missing honeymooner on that cruise ship.  Tonight Joe has got the exclusive.  His family speaks out for the first time.  That‘s at 10:00 Eastern.
Up next, the king of politics, Chris Matthews.  See you tomorrow.