Guest: Aitan Goelman, Brian Hermanson, Andy McCarthy, Theodore Simon,
Duncan Kilmartin, Tom Sherrer
LESLIE CROCKER SNYDER, GUEST HOST: Coming up, the deadline passes, still no word on the fate of an American journalist held hostage in Iraq.
SNYDER (voice-over): Jill Carroll's father appeals on Arab TV for his daughter's release. But do personal appeals ever work with terrorists?
And Google fights back against Justice Department lawyers who want access to records of what millions of Americans are Googling for online.
Plus, a Vermont judge reconsidering his sentence again, after coming under fire for sentencing a serial child molester to just 60 days in prison, but should he remain on the bench?
The program about justice starts right now.
SNYDER: Hi, everyone. I'm Leslie Crocker Snyder. Dan is off today.
First up on the docket, the deadline has passed for Jill Carroll, the American journalist being held captive in Iraq. The United States was given until today to release all female Iraqi prisoners or the captors say they will kill Carroll.
NBC's Preston Mendenhall is in Baghdad covering the story for us.
PRESTON MENDENHALL, NBC NEWS CORRESPONDENT: Well prominent Iraqi leaders today join Jill Carroll's family in again appealing for her release. And on Arabic language TV channels throughout the morning a plea from her father was translated into Arabic. He said he wanted to speak directly to his daughter's kidnappers who have now held her for two weeks.
Now even the Sunni Arab politician she was on her way to interview on the day she was abducted, January 7, today also called for Carroll's release and a statement by her mother that has continued to be broadcast around the world. All this is designed to put the pressure on the kidnapers and also try to open some sort of link of communication. Now Carroll's abductors have threatened to kill her today unless the U.S. military releases women prisoners held in Iraq.
Now the military though said it has no immediate plans to free the eight women detainees that are being held for security reasons in Iraq. And while today was given as the day of a deadline by Carroll's abductors, in previous and past hostage takings of foreigners in Iraq, weeks and sometimes even months have passed before more information is known about the victims. Now back to you.
SNYDER: That was NBC's Preston Mendenhall in Baghdad. And joining me now MSNBC's terrorism analyst Evan Kohlmann. Evan, how realistic are these deadlines captors set?
EVAN KOHLMANN, MSNBC TERRORISM ANALYST: Well I mean they are always something to keep in mind, but really the only groups that we know of that adhere to these deadlines pretty closely are groups like al Qaeda, Zarqawi's al Qaeda faction, the (UNINTELLIGIBLE) army, the Islamic army in Iraq. This faction does not appear to be following their playbook.
It appears to be following their own. And since we do believe it is a Sunni Iraqi group, not a foreign group and it's a group motivated by Iraqi concerns, one would imagine that the deadline is more symbolic than actual. I don't think that they are waiting until to the very end of this deadline.
Hopefully the amount of pressure that's being brought right now, especially by Sunni Arab politicians in Iraq, will convince these folks to release her. I think that's really one of the things she has going for her here is that influential Sunni Arabs, the people that supposedly this group is representing are putting a tremendous amount of pressure to gain this woman's release and hopefully that will meet with some success.
SNYDER: Well that's a great thing that's occurred and the pleas from her parents, but one question I think is how can we be certain that the people who are her captors have even seen or heard any of this?
KOHLMANN: I think it's very, very likely. We know from monitoring the propaganda of these groups that almost all of them, even the smaller ones closely monitor what's going on, on Arab network satellite television. They closely monitor even what is going on in American media. If you look at some of the recent statements from terrorist leaders including Zarqawi, there are specific references to things that go on in our media, so I would be highly doubtful actually if no one from this group had seen or heard about the pleas from both her parents and from also these politicians.
SNYDER: Well you seem optimistic, Evan that it is possible to negotiate with these people? You think so?
KOHLMANN: Well I don't think negotiation necessarily, but perhaps the amount of pressure, public pressure that can be brought on these folks will convince them that holding this woman is no longer in their interest. A group with the same name, it's not clear if it's the same group, but a group with the same name just two days ago released the sister of Iraq's interior minister who was also kidnapped supposedly in order to gain the release of these eight women that are being held by coalition forces in Iraq.
So if this woman, if the wife—excuse me—if the sister of Iraq's interior minister can be freed unharmed, then perhaps the same is true for Jill. We don't really know. I mean there have been cases that go both ways. Most recently we had Susanne Osthoff in northern Iraq who was freed, but then again you have the counter example of Margaret Hassan, who was abducted by an Iraqi group and who was horribly executed. So at this point we have to be hopeful, but there is really no way to know for sure until the deadline expires.
SNYDER: Of course and we are hopeful. Evan, we are hearing on another note that an Islamic Web site has posted an audiotape possibly from al Qaeda deputy Ayman al-Zawahiri reading a poem praising—quote—
“martyrs” in Afghanistan. What should we make of this? I mean do you think it's for real?
KOHLMANN: Yes, it's definitely for real. This...
SNYDER: Why do you say that so certainly?
KOHLMANN: The audio recording has been advertised already for several days. It was announced that it was coming before even Osama bin Laden's latest audio recording came out. The audio recording is logoed (ph). It has the logo of al Qaeda, the official media wing. It was released through sites that are known to release this kind of stuff. It is almost certainly him. What is interesting how they are scheduling these releases now, how they are planning them, how they're advertising them in advance. It's almost like what you would imagine coming out of the White House.
SNYDER: Evan Kohlmann, thank you.
KOHLMANN: Thank you.
SNYDER: And now to a story about terrorism here at home. The star witness in the Oklahoma City bombing case was released from prison today. Michael Fortier cut a deal with prosecutors to tell them what he knew about the planned attack in exchange for a shorter prison sentence.
NBC's Don Teague has more on this story.
UNIDENTIFIED MALE: You guys are pathetic to watch me get my mail, you know that?
DON TEAGUE, NBC NEWS CORRESPONDENT (voice-over): Michael Fortier knew specific details of the plot to the blow up the Murrah Federal Building months before the 1995 bombing, but did nothing to stop it. After pleading guilty to conspiracy and weapons charges, he provided what prosecutors considered crucial testimony against Timothy McVeigh and Terry Nichols.
UNIDENTIFIED FEMALE: It was important for us to be able to have a storyteller, someone for the jury to hear what actually happened.
TEAGUE: In exchange, Fortier was sentenced to 12 years in prison. But with time off for good behavior he's being released today. Some victims' families are furious.
UNIDENTIFIED FEMALE: There are people who did things in prison that didn't cost the life of 168 people. You know and they got more time than he did.
TEAGUE: Legal experts say Fortier will likely be placed in the federal witness protection program. Authorities won't say where he is nor will his defense attorney who says Fortier is sorry for his role in the bombing which killed 168 people.
UNIDENTIFIED MALE: I'll tell you what he's told me a number of times.
His comment was always I pray for those people every day.
SNYDER: That was NBC's Don Teague reporting.
Joining me now is former federal prosecutor Aitan Goelman who worked on the Oklahoma City bombing task force and with us by phone is Brian Hermanson, Terry Nichols' attorney at his murder trial in 2004.
Aitan, we'll start with you. Why was Michael Fortier such an important witness for the government? What did he tell you?
AITAN GOELMAN, FORMER FEDERAL PROSECUTOR: He was the only witness who told the inside story, Judge. He knew about chapter and verse about the plot. Tim McVeigh told both Michael Fortier and his wife, Lori, about what he and Terry Nichols were planning to do and Fortier was the only person who could actually give the narrative. I mean the government had a lot of evidence at trial against both Nichols and McVeigh, but the other evidence was—didn't talk. And so Michael Fortier told the—a compelling story and his testimony was really important.
SNYDER: Well you know—of course, you know as well as I do how important it is to have a witness. And so law enforcement makes deals all the time. But is there something particularly offensive about this deal?
Particularly offensive because so many people feel that he was so culpable
· that particularly Michael Fortier was so culpable?
GOELMAN: Well I mean there is a difference between moral culpability and legal culpability. This deal was actually a very good deal for the government and by extension for the victims of the bombing. When Michael Fortier made his deal, as you know Judge, most times cooperators decide to flip and plead guilty and testify when you have really strong evidence against them when they are caught on tape...
SNYDER: Of course.
GOELMAN: ... when they're caught with the killer cocaine (ph). In this case we didn't have evidence tying Fortier to the bombing. We had you know some evidence of gun running, evidence of other things but no evidence tying him directly to the plot. So when he was subpoenaed as a witness to the grand jury and decided to come clean and tell the government everything that he knew about the plot, it was much more of a volitional decision on his part than it is in a lot of these cases.
SNYDER: Well let me bring Brian in here. Now, your client probably could have been successfully prosecuted for conspiracy among other things I would imagine, so he got a pretty good deal, didn't he?
BRIAN HERMANSON, TERRY NICHOLS' ATTORNEY (via phone): Well my client was Terry Nichols and he was indeed...
SNYDER: I'm sorry. You're right. I misspoke. Yes.
SNYDER: What do you think of this deal? That's what I should have asked you.
HERMANSON: It's interesting to note that the—they say they didn't have much evidence against Mr. Fortier, but indeed in his home they found ammonia nitrate. They found explosives. They found evidence of...
SNYDER: So do you think he got too good a deal?
HERMANSON: Well I mean they had to make a deal with someone to testify and he was the first person to say that he would say something, even though they had wiretaps in his home showing that he said he would lie...
SNYDER: Well, but they are certainly not going to make a deal with your client, right?
HERMANSON: Well again, if you look at the history of Mr. Fortier and what he did in this case according to his own statements, he was involved in explosives. He was involved in moving stolen weapons. He helped transport explosives. He scoped out the Oklahoma City bombing site many—several months before the bombing. He...
SNYDER: True, but...
HERMANSON: ... knew the day and the time, so...
SNYDER: ... as Aitan just pointed out, the government doesn't make deals with innocent people. I mean they have to take someone who's culpable of something. That's the only reason they're going to flip, right? And so wouldn't you agree that a deal would never have been made with your client. Fortier was the natural person.
HERMANSON: With the government's mindset on the case they would not make a deal with my client, but I think if you look side by side at what they said my client did and what they said Mr. Fortier did do find that they are very similar. In fact, several months leading up to the bombing that's where Mr. McVeigh lived, was with Mr. Fortier.
SNYDER: Right. Do you think it was a fair deal, Aitan?
GOELMAN: I do think it was a fair deal. I think it was an extremely fair deal. And I think that Mr. Hermanson is dead wrong when he says that there's any comparison between Michael Fortier's action with regard to the bombing and Terry Nichols. Terry Nichols is the one who along with McVeigh was there side by side in the fall before the bombing and acquired the components that they needed to make the truck bomb.
And Terry Nichols was the one the day before the bombing helped Tim McVeigh mix the truck bomb that ended up murdering 168 people in Oklahoma City. It's true that Tim McVeigh stayed with Michael Fortier and it's true that Tim McVeigh told Michael Fortier about the plot. Michael Fortier...
SNYDER: Right. Well it's kind of a Hobson's choice, right, in a way. But—well we have to move on and Aitan Goelman and Brian Hermanson thank you so much.
UNIDENTIFIED MALE: Thank you.
UNIDENTIFIED MALE: Thank you.
SNYDER: Coming up, you can search for anything on the Internet, search engine Google, but watch out. The government might want to search you to find out what you're looking at. Can they do that?
And a judge in Vermont sparked outrage when he gave a man who pled guilty to molesting a little girl just 60 days in prison. He's under a lot of pressure to resign, so will he change his mind?
Plus, “Dateline's” Chris Hansen is back with more on his undercover reporting, catching dozens of men coming to meet 12 or 13-year-olds after having a sexually charged conversation online.
Your e-mails send them to firstname.lastname@example.org. Remember to include your name and where you are writing from. We respond at the end of the show.
SNYDER: A new round being fought in a legal war to limit children's exposure to sexually explicit material on the Internet. The Justice Department wants search giant Google to turn over records that show what some users were looking for when they search the Worldwide Web.
NBC's Pete Williams has more.
PETE WILLIAMS, NBC NEWS CORRESPONDENT (voice-over): It gives a whole new meaning to the term Google search. The Justice Department wants access to huge amounts of data about what Google's users want to see but privacy advocates say it's a vast overreach.
SHERWIN SIY, PRIVACY ADVOCATE: Instead of conducting targeted discovery or targeted subpoenas like any normal case, they are engaging in wholesale information trawling.
WILLIAMS: Government lawyers say they need the data to defend a law tied up in a court fight that's intended to shield children from sexually explicit material on the Internet. Material they say that children all too easily encounter.
HUNTER STEVENS, COMPUTER USER: (UNINTELLIGIBLE) seeing on like a Care Bear's Web site, something, you don't want something like that to pop up.
WILLIAMS: In court documents the government asks Google to disclose a random sample of one million Internet addresses in its database and show where else those addresses could take a user and it wants a week's worth of what Google users enter when they launch a search. Its goal to find out how often Web users encounter material that could be harmful to minors and how effective filtering or blocking programs might be. The government is not asking for information about individual Google users. Supporters of the law say this is the only way to get the information the courts say they need.
DONNA RICE HUGHES, INTERNET LAW SUPPORTER: The government is doing the right thing. They are simply presenting a very solid case by going to Google and asking for information that will prove its case before the Supreme Court.
WILLIAMS (on camera): Google says the government is on a fishing expedition, asking for far too much information about what its 12 million users a day are looking for.
Pete Williams, NBC News, Washington.
SNYDER: Joining me now is Andy McCarthy, a former federal prosecutor and criminal defense attorney Theodore Simon. Andy, should Google users fear their privacy might be compromised?
ANDY MCCARTHY, FORMER FEDERAL PROSECUTOR: I don't think in these circumstances, Judge, that it's appropriate to be worried about that. I think down the line that's a—that's certainly a legitimate concern, but care is being taken by the Justice Department and all the other service providers other than Google who have actually cooperated thus far in the investigation. They have taken great pains to make sure that actual users are not identified.
SNYDER: Ted, I don't really understand Goggle's position. Other search engines have been willing to give this information. The users themselves, their identity is not going to be revealed. Please explain the position to us.
THEODORE SIMON, CRIMINAL DEFENSE ATTORNEY: Well the—Goggle's position and I think it's a correct one, is that they are saying the subpoena is overly broad, it's too vague, it's burdensome and it's intended to harass. As well as a consequence, it's potentially invading the privacy of its numerous users. As you well know, citizen users of Google, this has become their personal library. In today's environment it's a necessary annexed library and no one really wants what they're searching for discovered and the importance of it. This is some of the most personal matters that scholars, authors, journalists, lawyers, doctors, students, teachers use and that's the problem...
SNYDER: Yes, but what doesn't make sense to me, Ted, it would be one thing if they were able to say, Ted, you've been searching the Web for pornography but all they're going to know is that X number of millions of people have accessed pornographic sites. Why is that an invasion of privacy?
SIMON: Because it has the tendency to collect this massive data, which ultimately we don't know how much and in what way it will be used. I mean the real question is here how should you stop improper Web sites? So why doesn't—and I suggest the government use the same Google search, find the problematic site, determine where they are and shut them down. I think we all would agree that that's appropriate...
SNYDER: OK, let me just bring in Andy now. Andy, does anyone who is actually searching the Web for anything have any legitimate right to privacy?
MCCARTHY: I think they certainly have a legitimate expectation of privacy. And those privacy rights are being respected in this proceeding. What underlies all this is that this has been sent back by the Supreme Court for additional fact finding. This is not just a lark. This is something that the highest court in the land has actually ordered.
The government in order to develop the factual record that the Supreme Court has essentially asked for is going about trying to get admissible evidence to determine whether a statute that's been passed by Congress is a better mechanism for determining or protecting minors from Internet pornography than the filters would be, for example. So I think that in this instance what—at this stage of the proceeding, what Google is up to is really legally frivolous and I think factually it's very counterproductive because it may ultimately end up causing more things to be discovered.
SIMON: Excuse me.
SNYDER: Go ahead, Ted.
SIMON: I understand the well-taken position, but the irony of this is as my colleague has said, a lower court has already enjoined the enforcement of this law as being overly broad. The Supreme Court has approved that and now it has sent it back. So in an attempt to somehow permit the law, the government is going after Google with, I suggest, another overly broad request. And I think Google should be commended for its attempt at least to have a court determine whether or not this is appropriate.
SIMON: We are in a new age and the identity of the Internet and Google and search mechanisms are for the court to decide.
SNYDER: I do think it's very interesting that Google is the only search engine that has advanced these arguments. Everyone else has cooperate and it does make one wonder if it is a political position, but in any event (UNINTELLIGIBLE) as usual on both sides.
Switching topics now to the ongoing fight over the president's controversial domestic spying program. Critics say President Bush violated the Constitution and broke the law that regulates eavesdropping on Americans when he ordered the NSA, the National Security Agency, secret program, but the White House is fighting back. The Justice Department insisting the president's inherent authority to authorize eavesdropping was supplemented by Congress' authorization to wage war against al Qaeda. And Vice President Cheney told CNBC's “Kudlow and Company” Thursday the administration has done nothing wrong.
(BEGIN VIDEO CLIP)
RICHARD B. CHENEY, VICE PRESIDENT OF THE UNITED STATES: We have operated within the bounds of the Constitution. The president has the responsibility, as well as the authority to do what needs to be done and we have been doing it.
(END VIDEO CLIP)
SNYDER: The ACLU and the Center for Constitutional Rights have both filed suit to stop this program. Criminal defense attorney Ted Simon and former federal prosecutor Andy McCarthy are still with me to talk about these issues.
Before we move on, it's important to note that Ted Simon serves on the Board of Directors for the National Association of Criminal Defense Lawyers, a named plaintiff in the ACLU lawsuit against the NSA. Is the White House correct when it says the Constitution gives the president authority to order this spying with or without supplemental authority from Congress? I think we're going to have a little disagreement here. Andy.
MCCARTHY: Yes, I think the Constitution unquestionably authorizes the president and particularly under circumstances where Congress has authorized the use of force, which the Supreme Court has already basically held includes all of the necessary ingredients of the use of force. The penetration of enemy communication, signals intelligence, is a traditional incident of war fighting. The president of the United States is the constitutional officer who the American people have elected to protect them and to carry out their foreign policy, not a federal court.
SNYDER: Well many Americans are up in arms about this—what they believe to be an abusive power. Ted, what I'd like to ask you about is the Foreign Intelligence Surveillance Act, the FISA court. Shouldn't the government have gone through them?
SIMON: Well that is certainly the argument that is before the court. And I think there is significant authority that the president, and with all due respect, does not have inherent authority to basically throw the pitches and call the balls and strikes. And the Fourth Amendment prohibits generally warrantless surveillance. You know this matter has been before courts before. Even the Supreme Court of the United States in a case called U.S. v. the United States District Court for the Eastern District of Michigan held and I'm not...
SNYDER: Well we don't want to get too much...
SNYDER: ... inside baseball here...
SIMON: ... you don't want to get too much, but what you have is an explicit statement of the court that says the Fourth Amendment requirement of judicial approval before initiation of a search or surveillance applies in domestic security cases and the government can't just simply say national security...
SIMON: ... and then somehow wipes out the requirement of a judicial intervention and court order. As far as the FISA...
SNYDER: Let me interrupt you because I want to make sure Andy has a word, but...
SNYDER: ... we have just heard from the leader of al Qaeda, this is a very tense time, he's saying he's going to blow us up; he's going to do it again. Does the government have some extraordinary powers during this kind of situation, Andy?
MCCARTHY: Of course it does. There is a war out there. And al Qaeda is not only trying to hit us, they're trying to hit us domestically in our high civilian population centers. The position that's being taken by the other side is essentially this. If the head of al Qaeda calls inside the United States and directs a strike, the constitutional officer of the—who protects the American people, the president of the United States, who is responsible for that, cannot protect the American people unless he gets permission from an unaccountable federal judge. That's unheard of and in wartime it's just impractical and ridiculous.
SNYDER: Let me just ask one further question...
SNYDER: ... and the question I ask of Ted. Why couldn't the government have gone to the Foreign Intelligence Surveillance Court, which it was created in 1978 after the Watergate scandals to make certain that there would be judicial intervention?
MCCARTHY: Well first of all, if the president has the inherent constitutional authority he doesn't have to go to a court. But leaving that aside, why would he go to a court or why...
SNYDER: Why hasn't he? Why didn't he?
MCCARTHY: Well we're in war. There's a lot of things that we can do in wartime that we can't do in peacetime. We kill people. We capture people. We detain them. We destroy property without probable cause. The thought that you have to have a legal standard of probable cause satisfying an unaccountable judge—I mean unaccountable to the electorate—in a war time circumstance and that you can't penetrate enemy communications without that is preposterous and it's really suicidal for a society.
SNYDER: Well there is something a little frightening, Ted, about...
SNYDER: ... the executive branch going off on its own.
SIMON: Well let me say this. The Foreign Intelligence Surveillance Act, which created the FISA court, provided for the government to go to a special court to get a warrant. And in emergency situations they made provision you don't need a warrant...
SIMON: ... but you can come back a few days later and indicate what happened. But what we have here is apparently wiretapping, eavesdropping within the United States, albeit it may involve outside the United States with the wholesale institutional noncompliance with the foreign—with this FISA court and the FISA Act...
SIMON: So it's not a whole lot of problem to get one of these warrants. They are almost uniformly given.
SNYDER: I think that is the most troublesome issue, but of course there's right on both sides. Andy McCarthy and Ted Simon, thank you.
UNIDENTIFIED MALE: You're welcome.
SNYDER: Coming up, the Vermont judge under fire for sentencing a serial child molester to just 60 days behind bars, now reconsidering the sentence again, but many still are calling for him to resign from the bench.
And it's happened again. Online sexual predators caught red-handed. Another “Dateline” investigation catches dozens of men coming to a house to meet boys and girls after having sexually charged conversations online.
And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing sex offenders before they strike again. Our search today is in Massachusetts. The state is looking for Theron McMillan.
He's 42, five-ten, weighs 180 pounds. McMillan was convicted of raping and abusing a child and he has not addressed his address with the authorities. If you have any information on his whereabouts, please contact the Massachusetts Sex Offender Registry Board at 978-740-6400.
We'll be right back.
(BEGIN VIDEO CLIP)
GOV. JIM DOUGLAS ®, VERMONT: And I appalled at the modesty of the sentence for a child rapist. I think the victim needs to be respected more; I think our communities need greater protection and I was very, very disappointed in that sentence.
(END VIDEO CLIP)
SNYDER: Vermont Judge Edward Cashman sentenced a serial child molester to what amounted to only 60 days in prison, but now the judge has a second chance to right what many are calling a wrong. Mark Hulett pleaded guilty to molesting a girl for four years starting when she was just 6 years old.
Judge Cashman could have put him in prison for life, but instead said it was more important for Hulett to receive sex offender treatment, which he did not qualify for while behind bars. Well state officials have since ordered that Hulett get treatment behind bars and prosecutors have asked Judge Cashman to once again reconsider his sentence. If they get what they want, he could spend up to 20 years in prison.
Joining me now Duncan Kilmartin, who is one of the Vermont state representatives calling for Judge Cashman's resignation and Vermont criminal defense attorney Tom Sherrer.
Let me start with you Representative Kilmartin. The legislature decided it will not get involved with impeaching or demanding a resignation from Judge Cashman until after he rules on the state's request to re-sentence Hulett. Is this the right thing to do?
DUNCAN KILMARTIN ®, VERMONT STATE REPRESENTATIVE: I think it is the right thing to do, but it wasn't the legislature who made that decision. It was the Democratic leadership and the chairman of the Judiciary Committee. I think that if Judge Cashman fails to give a minimum of eight to 20 years on the first offense, that that will ensure either his impeachment or a failure on the part of the legislature to renew his appointment for six years.
SNYDER: Well let me say, as a former judge for 20 years, although I think his sentence is shocking, I do not know how you can say that impeachment of a judge for giving a sentence you don't agree with is appropriate. What do you say about that, our defense attorney, Tom?
TOM SHERRER, VERMONT CRIMINAL DEFENSE ATTORNEY: Oh I agree with you completely that there is no grounds for impeachment. This is not an illegal sentence. It was within the confines of what the statute had set out. What is starting to happen is cooler heads are starting to prevail. People are understanding this is much more complicated than first thought. There has been a real misjustice by the local media, the governor, and national media in portraying this situation as something very simple and it's been very misleading. Fortunately people are taking a closer look at this and we're addressing the facts, not the hysteria.
SNYDER: Well I think it is clear that everyone is shocked and appalled and I have to admit I am one of them at the sentence the judge gave. He did explain at great length that he was concerned about getting treatment and claimed that it could not happen to this man in jail and now that situation has been remedied. Do you believe that the judge will now change his sentence on the second motion to reconsider? Let me start with Representative Kilmartin.
KILMARTIN: I certainly believe that he should. And in response to the suggestion that it's not impeachable, if you are familiar with the transcript, as I've become familiar with the transcript, his conduct in the courtroom constituted in my opinion the maladministration of justice. He expressly denied really the victim, her voice, in the courtroom and the victim's mother from whom the child has been taken away.
So the mother now has a sentence of her own because of what this trusted family friend did to her daughter. And I think the transcript as I have reviewed it has only made—it reinforced my belief that he's made a very egregious error and deserves to be removed from the bench.
SNYDER: Well you know judges do maker errors and there are remedies for that. There is appeal, reconsideration, Tom, I'm directing this to you. There is also the ability to not reappoint or renew a judge's appointment, or not to reelect him. But impeachment for something he believed was right, I believe is a fairly shocking thing to consider. What do you say about that, Tom?
SHERRER: Again, I agree with you completely. It is the wrong remedy for the situation. The Vermont Bar Association has weighed in on this issue. There is a process set up for it, as you have identified. There is a retention process where these issues can be debated. If we get into a situation where a judge is called for impeachment because of an unpopular decision we're undermining the whole concept of independent judiciary, which is so important.
SNYDER: Well I think it does undermine the administration of justice, but let me continue with you, Tom. How can this sentence be justified? We have someone who has admitted to molesting a 6-year-old in a continuing course of conduct, actual, oral, sodomy and various sexual abuse acts, a 6-year-old over a period of time, several years. This sentence is very hard to justify.
SHERRER: Well a couple of things. First, I do think what's good that has come out of this is the administration has changed their policy so that now they will have treatment for this gentleman, but for other offenders as well. What has been missed in this whole discussion is Judge Cashman was not focusing on this individual defendant as much he was focusing on society in general. He is concerned about protecting society...
SNYDER: Well let me interrupt that for a minute. One thing that bothers me about this, I'm going to address this to our representative, is from everything I have ever read, having been a sex crimes prosecutor, the first in the country, we have never been able to show that treatment for sex offenders is effective. We have never been able to show that sex offenders can be rehabilitated. We know they're recidivists. So Representative Kilmartin, how does that factor into your thinking?
KILMARTIN: Well I am a criminal attorney defense attorney myself. I have about 37 years of experience. I also did a great deal of juvenile work where I represented the juveniles and like you, I have acquired a considerable body of knowledge and experience which says to me that the judge and his rationale that he applied to this totally goes against the weight of the science and history.
SNYDER: All right. Well Representative Kilmartin and Tom Sherrer, this is an extraordinarily horrible, difficult subject. Thank you. Thank you very much.
SHERRER: Thank you.
KILMARTIN: Thank you, Judge.
SNYDER: Coming up “Dateline NBC” goes undercover again to track potential online predators this time on the West Coast in southern California. You'll be amazed at what they found.
And the tragic death of a young New York City girl highlights what needs to be done in New York City and across the country to make sure this doesn't happen again. It's my “Closing Argument”.
Your e-mails send them to email@example.com. Remember to include your name and where you are writing from. We respond at the end of the show.
SNYDER: Coming up, another “Dateline” investigation tracking down potential online predators. The details up next.
SNYDER: A few months ago we brought you a “Dateline” undercover report that caught potential online sexual predators preying on children. You'll remember Chris Hansen confronted 20 men who had all engaged in an explicit sexual conversation with someone posing as a minor over the Internet. Many showed up in person hoping to meet the minor.
Well Chris is back, this time with his third undercover investigation into online sexual predators. A report from the West Coast where “Dateline” uncovered more adults apparently looking for sex with minors online.
CHRIS HANSEN, “DATELINE NBC” (voice-over): It was almost two years ago when the first in a series of breakthrough investigations exposed a national epidemic.
UNIDENTIFIED MALE: Hello.
HANSEN: Grown men trawling the Internet, many looking for sex with minors.
UNIDENTIFIED FEMALE: Did you bring condoms?
UNIDENTIFIED MALE: Yes.
HANSEN: In two different investigations in two different states, dozens of men showed up at our undercover houses after chatting about sex online and then making a date with a minor.
UNIDENTIFIED FEMALE: Just sit down on the couch for a minute and I'll be down in a second.
HANSEN: One man who sent obscene video of himself to someone posing as a 13-year-old girl was a New York City firefighter who we then confronted.
(on camera): Is this appropriate behavior for a New York City firefighter?
UNIDENTIFIED MALE: No, sir, it is not.
UNIDENTIFIED MALE: Hello.
UNIDENTIFIED MALE: Hi.
HANSEN (voice-over): This man was a rabbi.
UNIDENTIFIED MALE: You know I'm in trouble and I know I'm in trouble.
HANSEN: And he was not happy when he found out he would be exposed on national television.
UNIDENTIFIED MALE: (UNINTELLIGIBLE)
UNIDENTIFIED MALE: (UNINTELLIGIBLE)
HANSEN: Both of our investigations were watched by millions of people. It was the talk of radio and cable television shows for weeks.
UNIDENTIFIED MALE: “Dateline” confronted...
HANSEN: So have sexual predators learned any lesson at all? Apparently not. Just this week “Dateline” was back in action for a third investigation. This time in southern California. And as you'll see, some men are simply not getting the message.
UNIDENTIFIED FEMALE: Hello.
HANSEN: Meet 40-year-old Daniel Polito (ph).
UNIDENTIFIED FEMALE: (UNINTELLIGIBLE)
HANSEN: He's hoping to meet a 13-year-old girl home alone.
UNIDENTIFIED FEMALE: I've got to finish brushing my teeth, OK.
UNIDENTIFIED MALE: OK.
HANSEN: He sent her pictures over the Internet of his genitals and then asked if she'd give him oral sex. He's in for a big surprise when I walk in.
(on camera): How are you tonight?
(voice-over): Like so many others he says he wasn't really here for sex. He tells me he was here to teach the girl a lesson about the dangers of talking to strangers online.
(on camera): You posed naked on your webcam...
UNIDENTIFIED MALE: (UNINTELLIGIBLE)
HANSEN: ... so a 13-year-old girl could see it because you wanted to teach her a lesson?
UNIDENTIFIED MALE: Well you could say that...
HANSEN: So this is like a tough love thing...
UNIDENTIFIED MALE: (UNINTELLIGIBLE) HANSEN: Did you bring condoms with you?
UNIDENTIFIED MALE: Yes, I did.
HANSEN: What part of the lesson were you going to use the condoms for?
UNIDENTIFIED MALE: I wasn't going to use them. I was (UNINTELLIGIBLE).
HANSEN (voice-over): Daniel Polito may really be the one who needs to learn a lesson. You won't believe what he admits to me.
(on camera): You ever watch “Dateline NBC”?
UNIDENTIFIED MALE: Yes.
HANSEN: Have you ever seen our stories on computer predators?
UNIDENTIFIED MALE: Yes.
HANSEN: This is one of them. Now if there is anything else you'd like to say for yourself...
UNIDENTIFIED MALE: No. That's it.
HANSEN: Then obviously you're free to leave.
UNIDENTIFIED MALE: Thank you.
HANSEN (voice-over): Unlike our previous hidden camera operations where after leaving the house some men were able to make a run for it...
(on camera): I want to talk to you for a minute...
(voice-over): ... this time things will be different.
UNIDENTIFIED FEMALE: You're not calling me to tell me like...
HANSEN: For our new investigation, Perverted Justice, the watchdog group that regularly catches online predators set up a plan with the Riverside County Sheriff's Department.
UNIDENTIFIED MALE: (UNINTELLIGIBLE) doesn't ring a bell with anybody...
HANSEN: Frag, a Perverted Justice volunteer, who is inside the house alerts detectives when a potential predator is on the way. Once the man leaves the house, he can run, but he can't hide.
UNIDENTIFIED MALE: Sheriff's Department. Come out to the street.
HANSEN: And Daniel Polito (ph) is just one in another parade of potential predators.
UNIDENTIFIED MALE: (UNINTELLIGIBLE) UNIDENTIFIED MALE: Nothing on you?
HANSEN: We thought we had heard it all. But nothing could prepare us for the kinds of things we found during our latest investigation.
(on camera): If he would have consented to having sex what would have happened?
UNIDENTIFIED MALE: I'd be very hesitant at first, if he continued, then possibly we would have had it.
HANSEN: Possibly you would have had sex with a 13-year-old boy?
(voice-over): Dozens of men show up, some who have already been convicted of sex crimes with minors.
(on camera): So you're on probation for having sex with a boy, how old ?
UNIDENTIFIED MALE: Fifteen.
HANSEN: Fifteen. And now you're in this house to meet a 13-year-old boy.
(voice-over): While our first two investigations saw almost 20 men show up each time, as you'll soon see those numbers were dwarfed by what we found in our latest investigation in southern California.
SNYDER: That was “Dateline NBC's” Chris Hansen reporting.
Coming up, a 7-year-old girl allegedly beaten to death in New York City by her mother and stepfather. Child Services could have stopped it. What needs to change to make sure this doesn't happen again. It's my “Closing Argument”.
And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing sex offenders before they strike again. We are wrapping up our search today in Massachusetts. We are looking for Jose Davila or Davila. He's 35, six-feet, two-inches tall and weighs 228 pounds.
Davila was convicted of rape and abuse of a child and indecent assault and battery and has not registered his address with the state. If you have any information on his whereabouts, please contact the Massachusetts Sex Offender Registry Board at 978-740-6400.
We'll be right back.
SNYDER: My “Closing Argument”—New York and the nation have been fixated on and repelled by the horrible murder of little Nixzmary Brown, a 7-year-old girl tormented, starved, beaten, sexually abused and allegedly killed by her stepfather and her own mother.
Her stepfather, Cesar Rodriguez, said yesterday in a jailhouse interview that Nixzmary was—quote—“A handful. I don't want to say she deserved it, but Nixzmary gave me so much trouble I probably used all my force”—unquote.
A pattern of neglect and abuse manifested itself for months and months. Her school consistently reported it, but the Administration for Child Services dropped the ball and failed to follow up adequately, failed to obtain a warrant to legally enter her apartment to see if she was being abused. She was finally allegedly beaten to death the night of January 10.
Obviously in this case, as in too many others, we must ask what could have been done and what should have been done in the hope that there won't be another innocent child murdered, although sadly we'll never have a perfect system. Any number of people, including criminal justice professionals, have proposed tougher sentences for child murderers. While that may be a good starting point, we need a lot more.
“My Take”—number one, better coordination among all relevant parties. Child Services, schools specially trained, abuse doctors, police and prosecutors early on. It's key. A chronically abused child should be reported to the police and to the district attorney at an early stage if the case warrants or for legal advice.
Number two, make the public more aware of the signs of child abuse, so people will report to schools the police or Child Services when they see a bruised or injured child.
Number three, educate kids themselves about the signs of child abuse.
Let kids know. No one can do this to them. They can report it and should.
Help kids develop self-esteem and teach them their rights.
Number four, rethink when to take a child from his or her family. No matter how much we may wish to keep families intact.
And number five, child social workers need more training and a better psychological profile of potential child abusers, both active abusers and passive abusers, who are more difficult to identify, like a significant other who tolerates abuse. Why? Because such a profile will enable them to recognize and prioritize the worst of these cases. This is critical.
These suggestions and strengthening laws against child murderers could make a difference. We must act now.
Coming up, your e-mails. While Dan—why Dan is getting some competition from his father, First Amendment attorney Floyd Abrams.
SNYDER: I've had my say, now it's time for “Your Rebuttal”. We're still getting plenty of e-mails from those who admire Dan.
Eighty-year-old Roe from Connecticut writes—quote—“After doing the same boring routine every day, my daughter comes home from work, we sit in front of the TV and watch THE ABRAMS REPORT. My daughter turned to me the other night and said man, he's hot. I replied yes dear and he's intelligent too.” (UNINTELLIGIBLE) Dan.
But Annette Beyschau in Tacoma, Washington has another crush. “I will take his father. I have admired him for years and Dan is too young. Give me Floyd.”
Annette, I'm sorry to be the bearer of bad news, but Floyd Abrams is happily married. I'm sure he appreciates the compliment though. Dan, however, is still single and we all know how hot he is.
Send your e-mails to abramsreport—one word -- @msnbc.com. We'll go through them and read them at the end of the show.
That does it for us. I'm Leslie Crocker Snyder. Dan will be back on Monday. Have a nice weekend.
Coming up next, “HARDBALL” with Chris Matthews.
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