Guests: Kris Kobach, Andy Schiff, Henry Lee, Bill Wright, William Fallon, David Schwartz, Susan Criss
DAN ABRAMS, HOST: Coming up, the Senate Judiciary Committee votes to put Samuel Alito on the U.S. Supreme Court.
ABRAMS (voice-over): And Attorney General Alberto Gonzales takes his turn selling the administration‘s domestic surveillance program. But would the nation‘s top lawyer‘s argument hold up in court?
And famed criminalist Dr. Henry Lee says he found a clue onboard the cruise ship honeymooner George Smith disappeared from. Dr. Lee joins us, along with the man in charge of Royal Caribbean‘s fleet.
Plus, a prisoner tells jurors he had to kill pedophile priest John Geoghan. We‘ve got the tape and now it‘s in the jury‘s hands.
The program about justice starts now.
ABRAMS: Hi, everyone. We‘re going to get to Attorney General Gonzales‘ legal defense of the NSA domestic surveillance program in a moment, but first on the docket, the nomination of Judge Samuel Alito to the U.S. Supreme Court passes a crucial test.
MSNBC chief Washington correspondent Norah O‘Donnell is on Capitol Hill with the latest. Hey Norah.
NORAH O‘DONNELL, MSNBC CHIEF WASHINGTON CORRESPONDENT: Hey Dan. Well just hours ago the Senate Judiciary Committee voted along party lines 10-8 to recommend Sam Alito to the full Senate for approval. Now we‘ve checked and this is the first strictly partisan vote ever recorded in the Senate judiciary for a Supreme Court nominee. So given the fact of how unusual it is to have a deeply divided Senate Judiciary Committee, we did hear from both Democrats and Republicans today who bemoaned the fact that it was so partisan. At the same time each side acknowledged that they plan to make political hay out of this and use it as an issue in the midterm elections.
(BEGIN VIDEO CLIP)
SEN. CHARLES SCHUMER (D), NEW YORK: In the area of sex discrimination law, in the area of civil rights law, in the area of presidential power, in the area of congressional authority, in the area of criminal law enforcement, and, of course, when it comes to a woman‘s right to choose, Judge Alito has shown himself to be outside the mainstream.
UNIDENTIFIED MALE: Senate Democratic leaders urged their members Tuesday to vote against him in an effort to lay the ground work for making a campaign issue of the decisions on the court. I‘ll just tell you right now we welcome that debate on our side. We‘ll clean your clock.
(END VIDEO CLIP)
O‘DONNELL: Well there you have it. And the full debate begins tomorrow in the Senate. They are expecting a full vote on Friday, but that could still slide (UNINTELLIGIBLE) Democrats have abandoned their hopes of a filibuster. Quite frankly, they just don‘t have the votes, although most Democrats are likely going to vote against Sam Alito in what is likely be to the narrowest of victories for a judge since Clarence Thomas in 1991 --
ABRAMS: Norah, before you go, you also got a chance to talk to Attorney General Alberto Gonzales today. He‘s going public, defending the NSA spying program. What did he have to say to you?
O‘DONNELL: Well it‘s interesting the attorney general, Alberto Gonzales, just the latest in a string of administration officials who are making the case that the president‘s NSA domestic spying program is in fact legal. And today I spoke with him and he explained why the president can do this without a court warrant.
(BEGIN VIDEO CLIP)
ALBERTO GONZALES, U.S. ATTORNEY GENERAL: We believe that the president does have the inherent authority, as commander in chief, particularly in a time of war, to engage in electronic surveillance of the enemy. We think this inherent authority is supplemented by the authorization to use military force passed by the Congress just days after the attacks of September 11.
(END VIDEO CLIP)
O‘DONNELL: Now today the attorney general spoke at Georgetown Law School and as he spoke more than a dozen students stood silently, with their backs turned to the attorney general. Outside the classroom, a pair of protesters held up a sheet that said don‘t torture the Constitution. There you can see another protest inside that speech at Georgetown Law School. Now Gonzales‘ next appearance is likely to be up here on Capitol Hill, where he‘s going to have to defend this program because hearings are set to begin in February—Dan.
ABRAMS: All right, Norah O‘Donnell, thanks a lot.
“My Take”—I‘m not feeling any better about why the administration needs to avoid the secret FISA court than I did yesterday. Representative Adam Schiff is a California Democrat and a former federal prosecutor and Kris Kobach is a constitutional law professor at the University of Missouri at Kansas City and a former counsel for Attorney General John Ashcroft. Thanks very much for coming on the program. Appreciate it.
All right, Professor, let me start with you. There are a couple of arguments here that the administration has made. Let‘s go through them. First I want to ask you about the courts. Basically, Attorney General Gonzales and the president and others have basically suggested that the federal courts have reviewed this issue and have basically come down on their side.
This is number six.
(BEGIN VIDEO CLIP)
GONZALES: The Supreme Court confirmed that the expansive language of the resolution, all necessary and appropriate force, ensures that the congressional authorization extends to traditional incidence of waging war. The use of communications intelligence to prevent enemy attacks is a fundamental and well-accepted incident of military force.
(END VIDEO CLIP)
ABRAMS: Professor, isn‘t it misleading to suggest that the U.S.
Supreme Court has reviewed this issue? They haven‘t reviewed this issue.
KRIS KOBACH, CONSTITUTIONAL LAW PROFESSOR: Well you know you really have to divide this issue into two halves. The first half, which the attorney general is referring to is the question of whether the authorization for the use of military force fits this into a loophole created in the FISA Act that says if authorized by law the president can engage in surveillance outside of FISA.
But the second half of the issue, which four U.S. circuit courts have reviewed in similar situations, the second issue is whether article two of the Constitution gives the president inherent authority completely separate from FISA...
KOBACH: ... to engage in surveillance.
KOBACH: And they‘ve all come out the same way...
ABRAMS: But they haven‘t reviewed this issue. It‘s really I think unfair and a little bit misleading to suggest that this issue—yes, they talked in other cases about the authority of the president. But even in the case everyone keeps citing, which is the case of this guy Yaser Hamdi, the question there was can the government detain a U.S. citizen without effectively...
ABRAMS: ... taking him to trial. Even there they didn‘t address the question, the broad question of the president‘s inherent authority...
ABRAMS: ... and it really...
ABRAMS: ... and I feel like they‘re misleading people by saying that.
KOBACH: OK, I don‘t think it was being misled. I think maybe there‘s a little confusion here. Hamdi has nothing to do with the inherent article two authority of the president. There are two arguments. One is that maybe you can find your way through a loophole in FISA by using the logic of the Hamdi court. The other argument is even if you can‘t, article two of the Constitution gives the president a parallel authority to engage in electronic warrantless surveillance. And four U.S. courts of appeals have said...
KOBACH: ... including the FISA...
ABRAMS: But no, no, they said—wait, wait. They said that but not in the context of the FISA court. I mean again, that assumes that there was some level of...
ABRAMS: Wait. Let me rephrase that. That assumes that there was some level of review. All of those opinions assume there was a level of review by a court, and that‘s why it was OK.
KOBACH: There‘s one more thing you have to know. The FISA appeals court itself in 2002, acknowledged that FISA was not the exclusive means of electronic surveillance. The FISA court itself recognized in the case of (UNINTELLIGIBLE) case recognized that the president has inherent article two authority outside of FISA. So there‘s a lot of strong law here...
ABRAMS: Look, I would keep going with you on this, but I want to bring Representative Schiff in this.
ABRAMS: Representative Schiff, my concern is I feel like we‘re talking in circles every day about this. That we get a defense here and the bottom line question is—and it‘s a real simple one that‘s I think been made a lot more complicated. The question is does the administration need to go to the FISA court, even after the fact, to say here‘s what we‘re up to? And basically it sounds like the administration and the professor is laying out the case is saying we don‘t have to.
REP. ADAM SCHIFF (D), CALIFORNIA: They do have to, and I think that very clearly when you look at the legislative history of title three and of FISA, the Congress intended to occupy the field. It intended to make this the exclusive avenue for electronic surveillance of potential foreign terrorism, certainly with respect to American soil and Americans.
So Congress intended to occupy the field, and I think it was very clear from the administration, during all the hearings on the Patriot Bill and on FISA that we‘ve been going through for months now, that if the administration felt differently, they might as well have come in to the Congress and the Judiciary Committee where I served and said you know, this argument, this whole debate about the Patriot Bill and FISA doesn‘t really matter, because we can do what we want under our inherent authority, anyway. We don‘t have to go to FISA. But of course they didn‘t make that argument...
ABRAMS: But apart from that argument...
SCHIFF: ... is not privy to the secret information of this program...
ABRAMS: Right. That‘s...
ABRAMS: All right, look, that‘s...
ABRAMS: That‘s a separate argument.
ABRAMS: Hang on. Hang on.
SCHIFF: (UNINTELLIGIBLE) mention one argument that to me is even more telling than the legal one. This is the argument that General Hayden set out yesterday, and this is the operational argument. We couldn‘t go to FISA, said the administration. The why question has always been the one that‘s intrigued me. We couldn‘t go to FISA because it was too cumbersome and because we couldn‘t meet the standard of proof.
Now, if that is why they did an end-run around FISA that‘s the most troubling of all. FISA has granted thousands of these applications. The standard is so low in terms of showing a nexus with foreign terrorism that if they couldn‘t meet that standard, it really begs the question of what standard at all did they have?
SCHIFF: A mere suspicion or a hint of a possibility of suspicion of a connection with al Qaeda? This is exactly why in the House we should be having a thorough investigation hearing...
ABRAMS: All right, let me let Professor respond...
SCHIFF: ... but we‘re not in the...
ABRAMS: Hang on. Representative, hang on. Hang on a sec. Go ahead.
KOBACH: The FISA Act, the Foreign Intelligence Surveillance Act was drafted in 1978 before anyone had even conceived of cell phones and laptop computers. One of the things that FISA requires in a surveillance application—and I‘m just giving you this example as something that I—this isn‘t something the administration has told me.
One of the things it requires is the identity or the description of a target who‘s going to be surveilled. Now suppose that we get information that a particular cell phone in Afghanistan is being used to call the United States and it also talking with various known terrorists. We might want to surveil every call that cell phone makes to the United States. Well, under FISA you can‘t get—an application won‘t meet the FISA standards. So the president has to decide, do I go to Congress, have open hearings and explain this loophole, which is going to broadcast to the terrorists hey this is what we‘re doing...
KOBACH: ... or do I go ahead and use my inherent authority?
ABRAMS: That‘s such a dishonest argument...
ABRAMS: ... about—wait. Hang on a sec...
ABRAMS: Hang on a sec—I‘ll tell you. The part about that which is dishonest is the notion that the terrorists are going to know whether a warrant is required by the FISA court or not. And somehow that‘s going to change what they do.
ABRAMS: That‘s absurd...
UNIDENTIFIED MALE: ... public law.
ABRAMS: Hang on, Representative. I want to let the...
ABRAMS: Hang on Representative. I want to let the professor respond to that.
UNIDENTIFIED MALE: OK.
KOBACH: What FISA requires is public law. And if we have an open debate about this in Congress, which we may have to if it turns out the courts agree...
ABRAMS: You can have a limited open debate. You know that.
ABRAMS: You don‘t have to...
ABRAMS: Everything doesn‘t have to be open.
KOBACH: As soon as the president starts giving examples of what FISA doesn‘t allow him to do...
SCHIFF: The reason why...
KOBACH: ... then the president is going to be telling terrorists here‘s what we would like to do.
SCHIFF: ... is we have had...
ABRAMS: But again, what we‘re talking about is warrants. That‘s it.
UNIDENTIFIED MALE: Dan...
ABRAMS: We‘re not talking about how we‘re going about it. All they can debate—they can have a debate strictly about the legality of the warrants. Representative, you get the final word on this.
SCHIFF: Yes, thank you. The reason this is so disingenuous at two levels is we‘ve been having exactly this debate in the Congress, about changing FISA, about making the standards less in terms of what you need to show and the connection to foreign terrorists and the new technologies. We‘ve been having this debate.
And so it‘s very disingenuous to say well we can‘t have this debate in Congress because we have. The only difference is the administration is now saying that whole debate was irrelevant. The second reason why it‘s so disingenuous is the point you make, Dan, which is for al Qaeda, they don‘t care whether a wiretap has been approved by FISA or not. We, the American people care, but in terms of the operational capability of going after them or their suspicion that what they say may be overheard...
SCHIFF: ... that is completely irrelevant to whether we go through FISA or not. That‘s to protect us that we go through FISA...
ABRAMS: I wanted to focus more on the legal issues. We will continue to talk about the legal issues and certainly talking about two people who know them. Congressman Adam Schiff and Professor Kobach, thanks a lot. Appreciate it.
SCHIFF: My pleasure.
KOBACH: Thank you.
ABRAMS: Coming up, renowned crime scene expert Dr. Henry Lee says he‘s found a clue onboard the cruise ship honeymoon George—honeymooner George Smith disappeared from. Henry Lee joins us next, along with the captain in charge of Royal Caribbean‘s fleet.
And jurors now deciding the fate of a prisoner who testified he had to kill pedophile priest John Geoghan so he wouldn‘t hurt any other kids. We‘ve got the tape.
Plus, remember Robert Durst, the cross-dressing billionaire acquitted of killing his neighbor, even though he admitted cutting up his body? Well the judge in his case certainly didn‘t forget him when she ran into him in a shopping mall he wasn‘t supposed to be in. She joins us to describe her bizarre chance encounter.
Your e-mails email@example.com. Please include your name and where you‘re writing from. I respond at the end of the show.
(BEGIN VIDEO CLIP)
DR. HENRY LEE, FORENSIC SCIENTIST: We did conduct a different experiment, measurement, study. We did check the cabin, the canopy, and the balcony. I did find something, OK, but I cannot tell you what we found. We did find something.
(END VIDEO CLIP)
ABRAMS: Famed forensic scientist Dr. Henry Lee is on the case of missing honeymooner George Smith. He says he‘s found something that could be linked to Smith‘s disappearance. Yesterday Dr. Lee boarded the cruise ship where Smith was last seen and conducted a thorough investigation of the cabin Smith shared with his wife Jennifer and the balcony where Smith is believed to have gone overboard somewhere between Greece and Turkey in the early morning hours of July 5. His family says the evidence and witness accounts point to murder while others including the ship‘s captain believe he likely fell overboard.
Joining me now famed forensic scientist and my friend Dr. Henry Lee.
Dr. Lee, good to see you.
LEE: Good to see you.
ABRAMS: What did you...
LEE: I cannot see you, but good to talk to you.
ABRAMS: Yes, good to hear from you again. All right, so Dr. Lee, you‘re not saying what you found. Give us some clues.
ABRAMS: You like to talk in these sort of obscure ways sometimes...
ABRAMS: ... where you can sort of give us clues as to what you found.
Give us a sense of what you found.
LEE: Yes. Well, first of all, I want to thank the cruise ship and the captain really extending a lot of courtesy, give us sufficient time. Seven of us went on the cruise ship where we spent almost five hours. And we initially wanted to do five studies. And because some prior agreement we only did three.
So even with that three, we did find some biological evidence, and the location of those biological evidence can be significant. However, how significant it is will have to wait until Turkish police report and how many pieces of evidence collect, what‘s the result.
Also, FBI report, how much evidence that‘s been collected and what‘s their testing result. Them put together may be able to shine some light and—like in putting a puzzle. You need all the pieces. So far, one little piece doesn‘t really tell us the whole picture.
ABRAMS: Now when you say biological evidence, can you tell us was it found on the canopy? Because my understanding was that you thought you found something on the canopy.
LEE: Well I cannot really tell you, but assume you‘re correct.
ABRAMS: All right, so you found some biological evidence on the canopy. Because if you found it in the room, people could say well so what, there have been other people who have stayed in that room.
LEE: Yes, that‘s correct.
ABRAMS: Biological evidence in that room, you know who knows that could be anything. But biological evidence on the canopy could tell us—now bring us through this theoretically. How could you determine, based on any evidence, whether he fell or was thrown overboard at this time?
LEE: Well, of course, that‘s going to be difficult. Initially we want to do a mannequin experience—experiment and try to put the mannequin on the railing automatically, for just like the individual balance and fall, try to see where it landed. Then try to push, see where most likely the mannequin landed. Then try to throw overboard, see what happened. Of course, people are going to say that‘s the mannequin and using mannequin, it‘s not a real human. And it‘s difficult to use human as experiment...
ABRAMS: Tough to get someone...
ABRAMS: Tough to get someone to offer to serve as Dr. Henry Lee‘s dummy to throw over the side of a cruise ship...
LEE: Yes and that‘s only one...
ABRAMS: ... to see how it...
LEE: ... person. We at least have to do six to 10 experiments...
LEE: ... you need 10 volunteers.
ABRAMS: You‘ve got to get good interns, Dr. Lee.
ABRAMS: Yes. No, all right. So you weren‘t able to do this mannequin test. We‘ll talk to the Royal Caribbean people in a moment about that. I think that you‘ve all worked that out, about your ability to do this. Let me ask you, when you were doing the testing, because it‘s been so much after the fact, did you still wear...
ABRAMS: ... the booties and all the other protective gear that you sometimes wear at crime scene?
LEE: Yes, we wear crime scene suit, but we did not wear any glove or bootie, because almost six, seven months went by.
LEE: And so many people walk on the canopy, water hose it, and there‘s no reason to put the extra gear just for the show. And in addition, time is a very important element. We want to finish. We don‘t want to interfere with the cruise operation. They‘re so nice and extend courtesy. You don‘t want to overuse that courtesy and start—you know, put the extra gear really unnecessary.
ABRAMS: Are you going to crack the case, Dr. Lee, because I don‘t think you‘re going to. I mean I think you‘re the best. I think if anyone is going to do it, it‘s going to be you. But I can‘t see how you‘re going to be able to crack it this much after the fact.
LEE: Well Dan, you are a good friend. You know I never give up anything and we work on a lot of cases, 30, 40, 60, 90 years old cases. This case, of course, the carpet and padding holding some clue there. And solving this cases, you need four different type of evidence.
The first type, of course, a crime scene, a good crime scene. If I get to the scene that day, I probably can tell you what had happened. And six, seven months later we still...
LEE: ... can piece this together. Second thing we need is physical evidence.
LEE: If we found some foul play—blood dripping on the carpet, broken tooth on the carpet...
LEE: ... tissue, material on the carpet, of course that indicates something...
ABRAMS: Let‘s get three and four real quick.
LEE: Three is basically the key, room key and document of the key and the videotape. And fourth one, of course, we want to see what the witness says.
ABRAMS: If anyone‘s going to crack it, that‘s the man. You‘re looking at him. Dr. Henry Lee, thanks a lot for coming on the program. Appreciate it.
LEE: Thank you, Dan.
ABRAMS: Joining me now Bill Wright, senior vice president of Fleet Operations at Royal Caribbean. Thanks a lot for coming on the program. I can‘t imagine you‘ve got any problem...
ABRAMS: ... with what Dr. Lee is saying, right?
BILL WRIGHT, ROYAL CARIBBEAN SR. V.P. OF FLEET OPERATIONS: Absolutely not. And I thought it was just wonderful news yesterday when he indicated that he perhaps had found something on the I guess the canopy. That‘s really great news and we hope it‘s something that will in a substantial way contribute to the FBI‘s ongoing investigation.
ABRAMS: What‘s with this mannequin test? They wanted to throw a mannequin over the side and see how it falls, et cetera.
ABRAMS: Initially Royal Caribbean said no. What happened?
WRIGHT: Well, what we said is simply that we can understand the need for doing that type of an experiment. Our issue was only that yesterday the “Brilliance of the Seas” was in the port of Miami. We were disembarking and embarking approximately 5,000 of our guests, getting ready for a great vacation, a cruise vacation, and to conduct that kind of a visual experiment in that vacation environment, we just felt was not appropriate. However, we have offered to make an identical ship to the “Brilliance” in every way, the “Radiance of the Sea”. She‘s going to be in dry dock in the beginning of February in Freeport, Bahamas, and we‘ve offered to make the ship available so Dr. Lee can conduct his mannequin experiments.
ABRAMS: If he concludes it was murder and let‘s just assume—you heard me say to Dr. Lee I find it hard to believe that he‘s going to be able to draw that kind of conclusion this much after the fact, but if he does, won‘t that be embarrassing for Royal Caribbean, I mean the fact that it wasn‘t treated truly like a crime scene from the beginning?
WRIGHT: Well, Dan, that‘s just not correct. And that keeps on coming out, that we were not responsive to the...
ABRAMS: That‘s not what I said. No, no. Let me be clear. I‘m not attacking...
ABRAMS: ... Royal Caribbean by saying that. I mean that the captain, for example, says that look, he came upon the scene and he just assumed that someone probably fell overboard. Now he says that he tried to seal off the room, et cetera. I‘m not challenging any of that. I‘m just saying that if it turns out it was a murder—at least according to Dr. Lee—then I would assume if Royal Caribbean and the captain had that information from moment one, they would have acted a bit differently.
WRIGHT: Well Dan, I think it‘s fair to say the captain did not have that information from moment one.
WRIGHT: What he had was a missing person and he had what appeared to be possibly a bloodstain. He immediately contacted the authorities. The authorities, the Turkish authorities conducted a full forensic investigation that Dr. Lee and the Smith family and attorneys have a copy of, and I think it‘s fairly clear that we acted very responsibly.
The captain‘s comments that in a report that he‘s required to file to the Bahamian government -- it‘s called the maritime casualty report...
WRIGHT: ... with what he knew at that time, gave his best estimate, which he‘s required to do in that report and he did characterize it as an accident. But I think it‘s fair to say anybody who knows how authorities and particularly the FBI work, that any characterization by the captain or anybody in Royal Caribbean as to what we think happened would not have impacted the degree that they would investigate the crime scene...
ABRAMS: Well no...
WRIGHT: ... or the crime itself...
ABRAMS: It would impact how much the cruise line did at the time. I mean the captain is the one who effectively sealed off the cabin, et cetera, after the Turkish authorities had investigated.
WRIGHT: Right. But Dan, I don‘t see what we could have done differently. The stain, canopy was sealed off. The cabin was immediately sealed off. The authorities were contacted. We contacted the FBI at 3”19 in the morning Miami time, under two hours after the stain was first brought to the attention of the ship‘s officers and we continue to remain in almost daily contact with the FBI ever since.
ABRAMS: Let me ask you this. Why do you think that the family is so angry at Royal Caribbean?
WRIGHT: I think that‘s actually pretty easy to understand, in that the tragedy they have experienced, I can‘t fathom. It‘s just impossible for me. I have two daughters and to understand the pain and the suffering, I can‘t. It‘s—so I suppose when you‘re in that situation and you‘ve suffered the loss that they have suffered and the pain that they‘re continuing to suffer, you‘re angry at everybody...
ABRAMS: Did they talk to you?
WRIGHT: And I just...
ABRAMS: Have they complained to you?
WRIGHT: I have not spoken with them directly, no.
ABRAMS: OK. All right...
WRIGHT: I just really hope that the—in the—for the benefit of trying to get to the bottom of what happened to George Smith on the morning of July 5, it just seems to me that dealing with facts, dealing with reality, instead of what appears to be intentional misrepresentations...
ABRAMS: All right.
WRIGHT: ... on an ongoing basis is not going to help this. We want to deal with the facts and that‘s what we‘ve tried...
ABRAMS: There‘s a lot of mudslinging going on in this case. That‘s for sure, both sides. Bill Wright, thanks a lot. Appreciate it.
WRIGHT: Thanks, Dan.
ABRAMS: Coming up, a prisoner admits he killed a pedophile priest testifies he had no choice. He had to stop him. Will the jury buy it?
And the judge who resided over cross-dressing billionaire Robert Durst‘s trial runs into him at a mall. That chance meeting lands him behind bars. We‘ll talk to the judge.
And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing sex offenders before they strike. Our search this week, Maryland.
Authorities are looking for Darnell Chapman. He‘s 33, six-one, 195, convicted in 2002 of sexual contact with a 10-year-old boy. If you‘ve got any information on his whereabouts, Baltimore City Police Department want to hear from you, 443-984-7388.
ABRAMS: It is in the jury‘s hands now. Joseph Druce on trial for killing convicted child molester and defrocked priest John Geoghan. Druce admits to strangling Geoghan in his cell in 2003, but says he was insane at the time and did it to save the children from pedophiles.
(BEGIN VIDEO CLIP)
JOSEPH DRUCE, ON TRIAL FOR MURDERING EX-PRIEST: That guy was talking
about molesting kids, getting out and starting a mission and molesting more
kids. And I wasn‘t going to let it happen. It was in my head. You know
he brought everything back out of me that I tried to push away and I made -
so be it.
(END VIDEO CLIP)
ABRAMS: Druce says he was molested as a child and physically abused by his father, a man he says also forced him to take drugs and drink at a very young age.
Joining me now Bill Fallon, former Massachusetts‘ prosecutor and criminal defense attorney David Schwartz. All right, Bill, you think the defense is working?
WILLIAM FALLON, FORMER ESSEX COUNTY MA PROSECUTOR: Well I‘m a little fearful here, Dan. I don‘t think it‘s working. I don‘t think he was really likable, Druce, but the question becomes is this jury going to care. I don‘t know that the prosecution because I can‘t find it really told the jury why they have to care.
That they may personally hate Geoghan. They may think he‘s better off dead, but they are bound by this oath that they took to look at the facts. And the facts lead conclusively to the fact that he is saying that he is a murderer, that he in fact planned this assassination. Hopefully they drove it home and just said you can‘t have the inmates running the asylum.
ABRAMS: The question is whether the jurors are going to look at this strictly legally.
ABRAMS: Here‘s more of Druce‘s testimony from yesterday.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Do you think if I get two minutes I can kill him?
DRUCE: There was no planning. It was contemplating. I didn‘t—I had to stop him.
(END VIDEO CLIP)
ABRAMS: You know, David Schwartz, I don‘t know. I think the prosecutors are going to have a tough time here. I mean first of all, this guy‘s in prison for life anyway, so he‘s not getting out. And then he‘s basically saying—and it really isn‘t a legal defense. I mean saying you‘re insane is basically—is saying something very different than saying I had to stop him, right?
DAVID SCHWARTZ, CRIMINAL DEFENSE ATTORNEY: Well you have two competing issues going on at once, Dan. Certainly, you have the insanity defense. Did he know the difference between right and wrong? The psychiatrist you know got up there and said he was the most insane person he‘s ever seen.
He had—he really had no clue what was going on. But I agree with Bill in the sense that this case may come down to jury nullification in this case. They may just nullify the entire law because of how horrible the victim was in this case, how horrible this priest. You‘re dealing with somebody that molested 150 children and didn‘t care about it. And bragged about it, and he said that he was going to do it again when he got out.
FALLON: You know, Dan, I think it‘s important—I don‘t think this priest said that and...
FALLON: ... we detest Geoghan—in fact, I think if I were the prosecutor I would have jumped on that one fact that the defense made. There‘s no way Geoghan in this prison was telling people, as ridiculous as he was and as horrible a human being, he wasn‘t giving people instructions on how to molest children. And I don‘t in any sense think that he said he was going to—speaking to his sister who thought he was a saint—I‘m going to go to the missionary and molest children.
SCHWARTZ: You weren‘t there, Bill. You weren‘t there...
FALLON: No, I wasn‘t there...
ABRAMS: Yes, but you know what? The you weren‘t there, I wasn‘t there business doesn‘t help. All right...
FALLON: I‘ve been in the courtroom with him...
FALLON: ... and I‘m just telling you right now that his sister believes he is a saint. That he was wrongly convicted even of the indecent AMD (ph). He certainly didn‘t say to his sister I‘m going to go and get me some young‘uns.
ABRAMS: Here‘s more of Druce talking about—this is him talking about the final words that Geoghan said to him as he was killing him.
(BEGIN VIDEO CLIP)
DRUCE: That was his last words. (UNINTELLIGIBLE) it doesn‘t have to be like this. And I was like, you ain‘t hurting no more kids. It‘s over for you pal, no more kids...
UNIDENTIFIED MALE: You mean the last words before he died? Those were his last words before he died?
DRUCE: Before I did my chosen task, yes, that‘s the last words he said. It doesn‘t have to be like this.
(END VIDEO CLIP)
ABRAMS: I don‘t know, David, a tough case, right?
SCHWARTZ: You know it‘s a tough case. It could go either way. This defendant certainly is not a likable human being. There‘s no question about it. He is not a likable guy, but when the jury starts analyzing who this victim is—certainly if you had a sympathetic victim in this case, probably the defendant would go down in about five seconds here. But because you have the type of victim that you have, I think the jury is going to think twice about convicting Druce...
FALLON: Dan, when he prosecuted him before, he‘s a monster...
FALLON: He was a monster before and some people thought he was one of the most violent people they ever met. I know Dr. Ablo (ph) said one of the wackiest, but quite frankly, I think he‘s one of the most criminal and Charles Manson was his hero, I think.
ABRAMS: Yes. All right, well look, the video we‘ve been showing you has been—was video of them racing to the prison cell right after Geoghan had been killed.
Bill Fallon and David Schwartz, thanks a lot.
UNIDENTIFIED MALE: Thank you.
ABRAMS: We‘ll be following this case. The jury‘s got it.
Coming up, you never know who you‘re going to run into at the mall. And for cross-dressing billionaire Robert Durst it meant a whole lot of trouble. He‘s back behind bars, all based on a chance encounter—get this—with the judge who presided over his case. She joins us.
ABRAMS: Coming up, the judge who presided over cross-dressing billionaire Robert Durst trial runs into him at the local mall. Talk about a tense conversation. Now he‘s behind bars. The judge is with us, up next.
ABRAMS: We‘re back. Remember Robert Durst, the cross-dressing billionaire, who beat a murder charge even though he admitted killing his neighbor, chopping up the body and throwing the body parts in a river? Well, if that sounds bizarre, wait until hear why he‘s back in prison.
Remember in 2001, while posing as a mute woman and claiming to be his own sister-in-law, Durst killed his neighbor. After parts of the victim‘s body were found, police arrested him. He posted bond, went on the run. He was eventually caught in Pennsylvania trying to steal a chicken sandwich and a Band-Aid from a grocery store.
At his murder trial, Durst claimed self-defense, somehow the jurors bought it. The victim‘s head was never found. The jurors said they weren‘t convinced the murder was premeditated. He served time for gun possession, jumping bond and evidence tampering and was released last summer.
Now the rules of his release required Durst to stay near his home. If he wants to travel anywhere, he needs permission. You‘d think having beat a murder rap he‘d play it safe.
But no, no, Durst took an unauthorized trip back to the scene of the crime, the boarding house where he killed his neighbor and where some of the witnesses who testified against him still live. He also went to a nearby mall for some holiday shopping in December and guess who he ran into? Who‘s the last person he‘d want to see while violating his parole?
The judge who presided over his murder case. That judge, Susan Criss was just as shocked to see Robert Durst at the mall as he was to see her and she joins us now. Judge, thanks a lot for taking the time to come on the program. Appreciate it.
HON. SUSAN CRISS, PRESIDED OVER DURST MURDER CASE: Well thank you.
Glad to be here.
ABRAMS: All right, so give us a sense of where you are in the mall and when you first spot him?
CRISS: I was walking down the mall and I saw this man walking towards me talking on the cell phone. As he got closer, my first thought was I know that guy and then I realized oh my God, that‘s Durst. As I realized it, he looked up at me and he said I know you. I know you. Then I could tell by his face that he realized who I was. He dropped his phone and he just kept saying you‘re Judge Criss. You‘re Judge Criss. I didn‘t recognize you without the robe.
ABRAMS: And at that moment, did you realize that he was doing something improper? You knew he‘d been released, right?
CRISS: I did, but I did not know that he was violating his parole by being there. I was shocked to see him, but I didn‘t know he was doing anything wrong.
ABRAMS: Did you talk to him? Did you—was there any interchange, sort of how are you doing sort of thing?
CRISS: Yes. In fact, he reached down to pick up his phone because it had come apart, and as he came up I said how are you doing, Bob? I honestly didn‘t know what was going to come out of my mouth until I heard it. And then we talked a little bit. He talked about his lawyers. His lawyers are trying the DeLay case, about to try the DeLay case. One of his lawyers is representing Tom DeLay. He talked about that and I responded and then after a while I needed to get away, didn‘t kind of know how to gracefully do that, so I just wished him happy holidays and then kept walking.
ABRAMS: Were you afraid at any point? I mean he had some hostility towards you during the trial?
CRISS: Well I was concerned a little bit about the hostility because I had given him such a high bond and I wouldn‘t go along with the plea bargain deal. When I first saw him, it startled me, but then when I realized that he was startled, too, I wasn‘t afraid then, because we were in a public place. I didn‘t think anything was going to happen.
ABRAMS: When did you realize that he was violating his parole?
CRISS: After he was arrested for coming to Galveston, for going to the scene of the crime where he had killed Morris Black and cut him up, the parole board contacted me to find out about if the story was true about me seeing him and they explained to me that he had violated his parole when he saw me.
ABRAMS: Just so people understand, why would you as the judge not know what the terms were of his parole?
CRISS: That‘s determined by the Texas Board of Pardons and Paroles and they‘re appointed by our governor, Rick Perry. Judges have no say-so or control over what happens when someone‘s on parole.
ABRAMS: Now, were you in a store in the mall? I mean this guy‘s a cross-dresser. Were you like in a women‘s clothing store or something?
CRISS: No. I was just walking down the hall, just right in the middle of the mall, and he was walking towards me. If we had—literally, if one of us hadn‘t stopped, we would have literally run into each other.
ABRAMS: And that was the first time you‘d seen him since the trial?
CRISS: Other than on TV, yes.
ABRAMS: Did—the look in his eye, I mean did he—was there some sense on your part that he was just shocked or was he scared?
CRISS: No, there was—he was very, very startled when he first saw me, very, very startled. But I didn‘t realize it was because he was caught at the time because I didn‘t know he was doing anything wrong.
ABRAMS: I don‘t know how much you can talk about the verdict, et cetera. I mean I was stunned by the verdict in this case, that the jurors came back with a not-guilty verdict. Can you talk at all about that?
CRISS: Well I could see it coming. As the trial was progressing, I could see that that was going to happen. I had a sense that was going to happen. There were a few times when I thought well look the prosecutor might pull it out, but I could see that was going to happen.
ABRAMS: And just based on the progress of the testimony, et cetera? I mean because you know when people look at this, even people who followed this case, the fact is he admits cutting him up. He admits killing him. He has nothing to back up his claim of self-defense apart from the fact that he says that‘s what happened and the jurors found him not guilty.
CRISS: I know. I could see it as the trial was progressing. And I could see the questions that were being asked and the way the lawyers were asking their questions. I could see that coming.
ABRAMS: What did he do at the—why was he going back to the scene of the crime, do you know?
CRISS: That‘s a good question and that‘s what I‘d really like to know. I don‘t know if he was coming there to revisit the crime, if he was coming there to find something that he left or he was coming there to see the witnesses. Because that—there are people who still live in that boarding house who are witnesses. There‘s next-door neighbors who are witnesses, and I don‘t know if he was coming to see them or what, but that‘s sort of the scariest part of all of this.
ABRAMS: And he was dressed in men‘s clothes, though right? I mean...
CRISS: He was dressed normally when I saw him and I believe when he came to the island he was dressed normally too.
ABRAMS: All right. All right. Judge Susan Criss, thank you very much for taking the time. We appreciate it.
CRISS: Thank you.
ABRAMS: Coming up, five years ago President Bush told the American Bar Association, you‘re not welcome in the judicial nomination process. But now that the ABA has given the A-OK to his Supreme Court-nominee Samuel Alito, he and some of his allies just can‘t stop talking about the American Bar Association. 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. We continue our search in Maryland.
Looking for Keith Dornheim. He‘s 27, five-seven, 163, was convicted of sexual acts on a 4-year-old girl. Has not registered his address with the state. If you‘ve got any information on his whereabouts, please contact the Baltimore City Police Department, 443-984-7388.
Be right back.
ABRAMS: My “Closing Argument”—I‘m getting tired of hearing certain Republicans touting Supreme Court-nominee Samuel Alito‘s well-qualified rating from the American Bar Association. Not because I dispute the rating, but because I can‘t stand the hypocrisy. They‘re clearly suggesting that with the ABA stamp of approval there‘s no explaining why eight Democrats on the committee would vote against him.
Yesterday, President Bush joined the chorus saying—quote—“His judicial philosophy is clear and his judicial temperament is sound. That‘s why the American Bar Association gave him the highest possible rating.”
I‘m glad to see the president and Senate Republicans showing so much deference to the ABA ratings. After all, President Bush is the first president in 50 years to shun their advice when considering nominees for the federal courts. As far back as President Eisenhower, the president informed the ABA ahead of time who he was considering for the federal courts.
A 15-member committee then evaluates the candidate‘s professional competence, judicial temperament, personal integrity and an ABA report then offers one of three ratings. Well qualified, qualified, or not qualified. A well-qualified rating means the nominee is considered to have won the ABA‘s stamp of approval. They‘re not asking how judges would decide cases, just that they‘re qualified to do so.
A legal evaluation, not a political one. Nevertheless, in his first year in office, President Bush announced he wouldn‘t use the ABA to screen judicial appointments anymore. Apparently he buckled under pressure from some conservatives still bitter over past ratings of then Judge Robert Bork and current Supreme Court Justice Clarence Thomas. The ABA still issues reports once the nominee‘s name is made public.
Not qualified ratings have been rare, only six so far since President Bush took office, entirely consistent with the number in previous administrations. They can‘t have it both ways. If this administration doesn‘t trust the ABA enough to give it the same respect it‘s been afforded by presidents from Reagan to Kennedy, Bush one to Nixon, then don‘t cite them.
Now I‘m still hoping this signals an olive branch, that by citing the ABA so widely the administration and the ABA critics in Congress are acknowledging a mistake in excluding the ABA, an organization that is as fair and impartial a group as one can be on a sensitive topic like this one.
Coming up, yesterday I said there‘s no way to avoid collateral damage if we want to kill terrorists. Not all of you have agree. Your e-mails are next.
ABRAMS: We‘re back. I‘ve had my say, now it‘s time for “Your Rebuttal”. Last night in my “Closing Argument”, a recent air strike in Pakistan that appears to have killed several senior al Qaeda fighters, but also killed somewhere between 10 and 18 civilians. I said it‘s an unfortunate reality in the fight against al Qaeda.
Mark Cole in Magnolia, Texas, “No one is immune from getting caught in the crossfire. Add to that the fact that many Pakistanis see the terrorists as freedom fighters, then you must accept the fact that all you have done with this collateral damage is recruit the replacements for the terrorists you‘ve just killed.”
And so Mark, I assume your suggestion would be then to give them all hugs and try to make them feel better?
Paul asks what I view as an absurd question, echoed actually by a handful of people. “Using your logic, why couldn‘t all the civilians that died on September 11 be viewed as innocent bystanders instead of the direct target?”
It‘s such an insulting question. Well let‘s see, Paul, first of all, because civilians were the target. Al Qaeda was trying to kill civilians. Our government was trying to and seems to have succeeded in killing terrorists. Those sorts of comments really just get me riled up.
Mary Tomlinson from Monroeville, Alabama gets it. “It‘s hard to imagine that anyone could live in this country and not believe that collateral damage, although not desired, is inevitable in dealing with enemies out to destroy all segments of the population, even children.”
Also last night, the NSA secret eavesdropping program and the FISA court‘s role in it. I have real problems with the administration‘s position on this one. One of my guests, Andy McCarthy, defended the administration, saying national security is an executive branch function and the president is better able to make decisions than the FISA court. I said that at least that was an honest answer, even though I don‘t necessarily agree with it.
Harriet Beck in Los Angeles, “Andy McCarthy tells you that Bush doesn‘t need the FISA court and you‘re satisfied because it‘s an honest answer?”
Harriet, it doesn‘t mean I‘m satisfied, but it‘s better than the one that suggests that 9-11 would have been prevented if the administration didn‘t have to go to the secret FISA court, even after the fact to get court approval. And we‘ve heard that argument being made. It‘s not the one that Andy McCarthy was making. He was making a legal argument.
From Hutchinson, Kansas, Kevin Duffy, “I don‘t see what the big deal is. The president isn‘t going to randomly pick someone out of the phone book and say let‘s spy on them today. Someone calling their relatives won‘t have to worry about someone listening in.”
Kevin, how do you know, I mean who they‘re monitoring or they‘re not monitoring? That‘s why I want a secret court to know what‘s going on. The rest of us don‘t have to know, but just someone who is reviewing it, even after the fact.
Finally Jessie Sweeney in Portland, Maine with a completely random comment. “There was a terrible crime committed on ABC. The crime occurred on the show “Dancing With The Stars”. The worst dancer, Master P., should have been voted off the show the first week. His female partner is unattractive too. I‘m outraged by this absurdity. I‘m sure Dan Abrams can dance better than Master P. without any rehearsals.”
Wow. What to make of that. Can‘t say I watch the show, but looks good. I guess.
Your e-mails abramsreport—one word -- @msnbc.com. We go through them at the end of the show.
That does it for us tonight. Coming up next, “HARDBALL” with Chris Matthews. I will see you back here same bat time, same bat channel.
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