Guests: Mark Edwards, John Burris, Susan Filan, Yale Galanter, Kerry Sutton, Vinda de Sousa, Julia Renfro
DAN ABRAMS, HOST: Coming up, the two Duke lacrosse players arrested and charged with rape. The D.A. says he‘s working on building a case against a third suspect. The defense says it has evidence that proves at least one of the suspects was not at the party when the alleged rape took place. We‘re live at the Durham courthouse.
The program about justice starts now.
Welcome to the Durham courthouse. Two 20-year-old Duke lacrosse players, jailed and released on bond this morning, accused of raping a stripper at a team party back on March 14. They turned themselves in to Durham police early this morning at 4:54. They were cuffed, booked and charged. They are now out on bond. But the D.A. says another arrest could come soon.
Hi, everyone. First up on the docket, a busy day here at the Durham courthouse where two sophomore lacrosse players, Collin Finnerty of Garden City, New York, and Reade Seligmann of Essex Fells, New Jersey have been charged with first degree rape, first degree sexual offense, first degree kidnapping. Both men are out on $400,000 bond. Seligmann waived a court appearance and was seen escaping cameras this morning. Later in the morning, I sat behind Collin Finnerty at a short court appearance. Both are scheduled to be back in court on May the 15th.
(BEGIN VIDEO CLIP)
KIRK OSBORN, READE SELIGMANN‘S ATTORNEY: Comes from a family of the highest character. He‘s the nicest kids I‘ve ever had the pleasure to represent and like I say, it‘s hard to put in words the unfairness and the injustice (INAUDIBLE) and we look forward to showing that he is absolutely innocent as soon as we can.
(END VIDEO CLIP)
ABRAMS: And you‘ve been hearing me report this all day. You heard it here first. The defense team already saying they‘ll be able to establish an alibi for at least one of the young men. There was a surveillance tape taken at an ATM that they say would prove that at least one of them was not at the house at the time of the alleged assault. That does not mean that they‘re going to claim that these young men were not at the party. But it seems pretty clear that they are going to claim and do claim that there‘s no way one of them could have done it because of the timing and they may make the exact same argument with regard to the second one.
Joining me now, North Carolina criminal defense attorney Mark Edwards joins me here, Yale Galanter, who‘s also a criminal defense attorney, and MSNBC legal analyst and former prosecutor Susan Filan and John Burris, who is also a former prosecutor and is now a defense attorney. My, oh, my. There is so much to talk about in this case today. Mark, let‘s start talking about first of all, the fact that they were charged, they showed up, released on bond. All standard procedure?
MARK EDWARDS, CRIMINAL DEFENSE ATTORNEY: Standard procedure.
ABRAMS: People saying oh, you know, they—were they treated differently, et cetera, any different treatment?
EDWARDS: No. Just the fact they were able to make a bond that substantial. That‘s really the only thing that‘s different about this case.
ABRAMS: You know, John Burris, some have suggested oh you know why weren‘t they arrested earlier? The usual procedure is that the people get arrested early on. Isn‘t the problem that she‘s only been able to identify these two about a week ago?
JOHN BURRIS, FORMER PROSECUTOR: Well, in terms of them being arrested yesterday. I certainly don‘t see a problem with that, of course, because if you‘re a local lawyer, you make an arrangement with the D.A. in order to turn people in. I didn‘t see that as a problem. Obviously, if the prosecution didn‘t want to proceed until at least they had a substantial I.D., how that I.D. took place, whether that‘s a photographic I.D. or not is something that certainly will be a very contested issue. But I think the D.A. was wise not to rush on this, to make sure there was at least...
BURRIS: ... corroborative evidence that might be in terms of the circumstances of how it took place and certainly not rush in and charge these people without at least being comfortable that the story has some credibility that he could support.
ABRAMS: Well, but I guess—I still don‘t know, Susan, what it is that has changed from the days after this alleged incident. How is that she has been able to access exactly who it was who did this to her because I‘m going to put up—this is the poster of the lacrosse team—it‘s number 13 -- and it has all the players on it. Presumably this was used or might have very well been used in identifying who was who on the team. And I‘ve got to tell you, when I look at that poster and even when you look at it up close a lot of the players kind of look alike.
SUSAN FILAN, MSNBC LEGAL ANALYST: Well, Dan, my guess is because the police were able to seize through the search warrant photographs and cameras and video cameras and computers, there are other photographs that were used for the photographic identification. I don‘t think it‘s just this poster, Dan. And I think what‘s changed since the night of the party to today is that we now have an indictment from a grand jury. Now here‘s a prosecutor who waited until he had that seal of approval from the public, from a jury of their peers, so to speak. I know they weren‘t subject to cross-examination, I know the defense didn‘t get to present its side of the case, but that doesn‘t really matter.
UNIDENTIFIED MALE: Yes.
FILAN: The prosecutor proceeded properly in this case at this point, up until this point. The thing that I think is so interesting now is that they‘re going ahead now trying to investigate who this third person is. He‘s going full steam ahead. I have to believe that the defense‘s position, that you‘re reporting, Dan, has already been made known to this district attorney. Because they wanted to prevent this arrest. They wanted to prevent this indictment...
UNIDENTIFIED MALE: No...
FILAN: ... and he‘s still going forward.
ABRAMS: I can tell you that the defense team did not discuss with the D.A. and the fact they don‘t want discussed, I think, many of the details because they won‘t share with me the very specifics of the timeline as to how they can be so certain that one of these young men couldn‘t have been at the party. They say they simply don‘t want to tip off the D.A. and I think...
ABRAMS: ... they‘re concerned, Yale Galanter...
ABRAMS: It‘s not about an obligation, John. It‘s not about an obligation...
ABRAMS: Susan was just saying...
BURRIS: No, at some point...
ABRAMS: At some point, at some point...
ABRAMS: Wait. Wait. But, John, John, John, John, John, wait, wait, wait. I‘m responding to Susan‘s point.
BURRIS: OK, I‘m sorry.
ABRAMS: Susan is saying she‘s sure—she‘s saying she‘s sure the D.A. knew about all of this and still went forward with an indictment. I‘m saying...
FILAN: Well Dan, at least the photographs from the party.
ABRAMS: OK. Fine. Fine...
ABRAMS: No, no, no, I—we don‘t know that he‘s seen the photographs from the party. We don‘t. I mean, again, these were pictures that were taken by someone who was at the party, and we haven‘t seen a warrant that‘s been executed for that camera. In fact, you know that camera and the pictures are in the hands of the defense team here. We don‘t know...
ABRAMS: ... that the prosecutor has seen these pictures.
BURRIS: Dan, let me just tell you this. If these defense lawyers have that kind of conclusive evidence and they knew their people were under suspicion for a possible indictment, they would have taken that information to the D.A. and said look...
BURRIS: ... it‘s not our guy.
ABRAMS: All right. Fair enough.
BURRIS: And they‘re going to do that sooner or later...
ABRAMS: Fair enough...
BURRIS: ... but they should have done it now if they haven‘t.
ABRAMS: All right. Yale—all right, fine. Yale Galanter, I believe that they tried to go to the D.A. with that information. You‘re very close with these defense attorneys. What are they telling you?
YALE GALANTER, CRIMINAL DEFENSE ATTORNEY: That‘s correct. They did try to go to the district attorney with the photographs, the photographs that you had seen and spoke about on the air a couple of nights ago, Dan, and the district attorney quite frankly wasn‘t interested. You know, Susan made reference in her opening comments about this grand jury process and you know, she made light of the fact that we don‘t get—the defense lawyers don‘t get to cross-examine, present their side. But that‘s—you know, that‘s real big stuff. I mean the defense did not have a chance to present their side of the story.
Grand juries are referred to as the one-sided right arm of prosecutors. You know you mentioned yesterday there were 81 true bills. There wasn‘t a single non-true bill that was issued by this grand jury.
And historically, that‘s what grand juries do.
GALANTER: The real test of this evidence is going to be on the 15th when the defense gets an adversary preliminary hearing a chance to challenge the D.A.‘s evidence for the first time in a court of law and that‘s...
FILAN: But, Yale...
BURRIS: That may be, but let me tell you something...
FILAN: But, Yale...
BURRIS: That doesn‘t mean the defense...
ABRAMS: Hang on...
ABRAMS: Hang on. Hang on. Hang on...
ABRAMS: Hang on. Hang on.
ABRAMS: John, John, hang on a sec...
ABRAMS: ... you don‘t agree with that? Hang on. Hang on.
EDWARDS: There‘s not going to be a probable cause hearing. And our system in North Carolina, once there‘s an indictment, there is no adversarial hearing short of the trial...
EDWARDS: What will happen on the 15th is that is part of a scheduled process that we have here on that day the D.A. is supposed to have provided discovery to the defense. If that has happened at that point, then the case will move on to the second case...
ABRAMS: Let me ask you this, Mark. Do you think it‘s possible knowing—you know you‘re a local defense attorney here—is it possible that if the attorneys for the defense can really make out a case that says you indicted this guy, but we can demonstrate not only that he didn‘t do it, but that he wasn‘t even at the party at the time that this alleged incident occurred, do you think that the D.A. would then say all right, we blew it?
EDWARDS: I don‘t think so. I mean the question is going to be how critical the time element is and how well it‘s tied down. As I‘ve heard from the paper and I haven‘t seen any discovery and all I know is what I read...
EDWARDS: ... is that this victim was somehow incapacitated, whether that was through alcohol or allegations that some kind of narcotic or drug was slipped to her. So time is not that important an element at that point.
ABRAMS: But let me ask you this—let me play number 25 here. Because see this is where I get confused about the theory here. Because that does seem to be what we‘re hearing now. And I can tell you from the photos that I‘ve seen that there‘s a photo of her smiling at 12:30 and then of her basically passed out, it seems either she fell, she was drunk, she was incapacitated at 12:38. But then how is this then the theory of what happened? Here‘s Mike Nifong, the D.A., on this program a couple of weeks ago.
(BEGIN VIDEO CLIP)
MIKE NIFONG, DURHAM DISTRICT ATTORNEY: She was grabbed from behind so that in essence, somebody had an arm around her like this, which she then had to struggle with in order to be able to breathe. And it was in the course of that struggle that the fingernails, the artificial fingernails broke off. Now, as you can see from my arm, if I were wearing a shirt, a long-sleeve shirt or a jacket of some short, even if there were enough force used to press down to break my skin through the clothing, there might not be any way that anything from my arm could get on to those fingernails.
(END VIDEO CLIP)
ABRAMS: John Burris, do you think that this D.A. has to choose effectively between two theories, either that the defendant—that the accuser remembers this battle in the bathroom, that she remembers who it was, who was attacking her, or that she was so incapacitated that she doesn‘t really remember what was happening?
BURRIS: Well I would hope that he doesn‘t have to choose between those. Because if he has the choose the latter, then he‘s got to have independent corroboration of what happened and that‘s going to be difficult given the silence and sort of the conspiracy of silence that you have amongst the guys. I hope that if he has this case and he feels strongly about his evidence he does not have to choose. His job is to put it on. There must be some corroborative evidence around the circumstances surrounding it.
We do know. You do have this. We know how she acted when she went to the hospital. That‘s probably the most important evidence you‘re going to have. If those medical people come in and says she has injuries that are consistent with sexual assault, of some kind of sexual activity, then it has to be a question of consent or you have to say that it took place some other time. That‘s going to be difficult, so I don‘t think that the D.A. has to make any choice right now. All he has to do is make sure he has enough evidence that he can present. And you will find at some point, maybe some of these other guys, if you give them immunity, they may start talking as well. So I think he‘s probably in a stronger position than you suggest straight up now.
ABRAMS: Yale, let me lay out the timeline that we learned from a police report as to what happened. That at 1:22 a.m., a 911-call reporting an intoxicated person. At 1:49 a.m., she was transported to a place called Durham Access, which is a community care center, which includes mental healthcare. As she arrived at Durham Access at 1:55, but then at 2:31, she‘s taken to the Duke E.R. and it‘s changed from intoxicated person to a rape allegation at 2:50 a.m. Will it be hard do you think for the defense to overcome the fact that she was always it seems in the custody of someone starting at 1:22 when the 911-call reporting an intoxicated person was taken?
GALANTER: I don‘t think so, Dan. If the defense stays consistent with their theory, which all along has been nothing has occurred and the boys have done nothing wrong, they don‘t need to close that window. Because what they‘re going to say is she was in the bathroom either doing her nails, doing something by herself, ingesting some kind of intoxicant on her own. They‘re going to come up with some theory as to why she was in that bathroom. But they‘re going to stay consistent. They‘re going to say that these boys did not rape her and that the signs, the trauma on her body were pre-existing conditions.
BURRIS: Well that‘s going to be tough.
ABRAMS: Yes and look...
BURRIS: That‘s going to be tough...
ABRAMS: ... take a quick break here. I‘m going to take a quick break. When we come back, everyone is going to stick around. We‘ve got more on this. This is a big story today.
Coming up, this is not the first time one of the suspects has been in trouble with the law. Collin Finnerty was arrested and charged with assaulting a man last year in Washington. How does that play into the case? The alleged victim has also been arrested before. Does that matter in a trial that could hinge on her word against the players?
Plus, the Dutch teen arrested in the Natalee Holloway case this week due in court today. Now prosecutors say exactly why they are holding him.
Your e-mails email@example.com. Remember to include your name and where you‘re writing from. I respond at the end of the show.
(BEGIN VIDEO CLIP)
BOB EKSTRAND, ATTORNEY FOR DUKE LACROSSE PLAYERS: These boys are innocent. And we have demonstrated that through pictures. We demonstrated it through the statements of witnesses, and we finally demonstrated it through the test results on the DNA.
(END VIDEO CLIP)
ABRAMS: And yet today, two young men from the Duke University lacrosse team were arrested. They were jailed. They are now out on bond, accused of forcible rape, accused of a first-degree sexual offense, accused of first-degree kidnapping. And Mark Edwards, the D.A. says in a statement even if all charges are consolidated for judgment and the defendants were sentenced to the minimum sentence, minimum in the mitigated range, he would face a sentence of 144 to 182 months upon conviction, so the minimum if they‘re convicted would be 12 to about 16 years?
EDWARDS: Yes, that‘s correct.
ABRAMS: And that‘s primarily because of the sexual offense and the rape charge?
EDWARDS: ... level of offenses, yes.
ABRAMS: Let‘s talk about the past here. Yale Galanter, would you be concerned about the fact that one of the young men here has a criminal past? Let me quote from “The Washington Blade” from April 12.
The victim—this is what happened in Washington a few months ago and Collin Finnerty apparently was one of the young men involved. The victim told police he was minding his business when Finnerty and two others began picking on him for no apparent reason. The victim told them to stop calling him gay and other derogatory names. When he tried to walk away the three men attacked him, busting his lip and bruising his chin. All three were arrested for simple assault, a misdemeanor.
Concerned if you‘re the defense attorney, Yale?
GALANTER: Yes, I‘m always concerned when my client doesn‘t have an absolutely clear record. Any ammunition that the prosecutor can use either in this case and chief are on cross-examination that would limit my ability to put my client on the stand would definitely concern me, Dan.
ABRAMS: And on the other hand, Susan, is there a way that the defense can use it to say look, she wasn‘t able to identify these people initially. Then there are these articles in late March about how all the—about how the various players had criminal records. And this criminal record in particular was discussed in newspaper articles. Could the defense say, she maybe picked this one because he had a troubled past?
FILAN: What a long shot, Dan. What a creative argument on your part, but boy, I don‘t think so at all because here‘s why. Let‘s say she is combing through the newspapers. Let‘s say she does find this article. How does she then find a photograph of this kid and then how does she mentally imagine that photograph to match whatever the police show her, because it‘s going to be a different photo presumably to identify that guy. And what motive would she have to falsely identify somebody? What motive does she have to falsely accuse...
ABRAMS: Wait, wait, wait, wait. I mean what motive—I mean when you say what motive does she have. I mean my guess is that Yale could probably come up with a motive or two. I mean...
FILAN: But we‘re acting here like the prosecutor is trying to convict innocent people. We‘re acting here like this victim is making it up and trying to frame innocent people. They‘re presumed innocent under the law now that they‘ve actually been charged.
FILAN: But there couldn‘t possibly be a reason to go forward and frame innocent people if there wasn‘t some kind of evidence that this district attorney is relying on.
FILAN: And I have to believe...
ABRAMS: Well how about this?
ABRAMS: You‘re asking—let me posit this possibility and again, for the sake of argument here, isn‘t it possible that the D.A. saw the rape exam and was convinced that she was raped? That she came to him and told him a story that he found to be credible...
ABRAMS: ... about what she says happened at that party.
ABRAMS: And that yet after that, that she had problems, that she couldn‘t identify who it was. That she said oh there‘s going to be DNA found I promise you, and there wasn‘t. And this is a very public case and problems ensue. And he says look, we can‘t go forward until you‘re able to identify exactly who did this to you and then an identification is made.
FILAN: Well look, she was able to give names right from the very beginning. The names that she gave in the search warrant don‘t match the names of the boys that have been arrested. But we also know that they were calling each other by different names and by jersey numbers in order to confuse her, or at least that‘s what she alleges. But I don‘t—and I have to disagree that the defense wasn‘t able in some way to show what it is that they want to show that exculpates their client to the district attorney. I can‘t imagine that he wouldn‘t sit down and listen. Now maybe he didn‘t buy it, maybe it didn‘t persuade him, but I can‘t imagine that they had stuff that they think is exculpatory and he wouldn‘t even listen...
ABRAMS: Well look...
FILAN: ... or he wouldn‘t even look at it.
ABRAMS: Here—I can tell you...
UNIDENTIFIED MALE: Susan...
ABRAMS: ... here‘s the position...
UNIDENTIFIED MALE: ... it still boils down to a he said-she said.
ABRAMS: But wait, wait, wait.
ABRAMS: But I can tell you...
ABRAMS: ... I‘ve talk to a lot of—but I‘ve talked to a lot of the defense attorneys in this case, all right?
ABRAMS: I mean I‘ve talked to five of them, at least.
ABRAMS: And I can tell you that the position they take is that they
have gone to the D.A., they have tried to convince him, and they say that
he doesn‘t listen. Now, now, that‘s what you‘ll hear from defense
attorneys in just about any case, but that is the position that the
attorneys have taken here. So the notion that somehow they didn‘t present
this to the D.A., that they haven‘t tried to convince the D.A. I think is -
and again, Yale, you are close with some of the defense attorneys in this case. Is that consistent with what they have told you? Because again that is what they have told me.
GALANTER: Dan, you‘re right on the money. You‘re extremely accurate. There has been dialogue between all of the defense lawyers and the D.A.‘s office. But he‘s just not listening. I mean he wasn‘t interested...
FILAN: It may be that he disagrees with them.
GALANTER: He filed—Susan, he filed a court pleading saying the DNA test will exonerate the innocent. There was no DNA found...
FILAN: Just because...
GALANTER: ... and they still ended up arresting these boys.
BURRIS: That doesn‘t mean...
FILAN: Just because...
FILAN: ... he disagreed with them doesn‘t mean that he wasn‘t listening.
GALANTER: No, that means a lot...
BURRIS: Look, the fact that they went...
ABRAMS: Hang on, hang on, hang on...
ABRAMS: Hang on, hang on, hang on...
ABRAMS: Let me let John Burris in. Go ahead, John.
BURRIS: Now I‘m not—I don‘t think it‘s persuasive at all that they went to them and tried to persuade them. If you didn‘t come up with clear alibi-type evidence then it‘s not persuasive. And defense lawyers do that all the time. I certainly would try that as well. But that doesn‘t mean at the end of the day that the prosecution necessarily accepts it. It doesn‘t mean—it just means—look, you‘ve got to go forward at some point in time. If you‘ve got conclusive evidence, you‘ve got to bring it.
BURRIS: If you don‘t...
ABRAMS: Let me ask Susan Filan a really basic question. Susan, if you‘re the prosecutor and you are convinced based on a nurse‘s examination that a woman has been sexually assaulted, and she says to you here are the people that did it, and yet when it comes to supporting that, there are problems with that account. Do you still presume based on her account, because that‘s what many people have said? Many people have said look that she should be presumed to be telling the truth. Do you do that as the prosecutor?
FILAN: No, what you do as a prosecutor, you‘ve got two equal concerns. You‘re very concerned about protecting the rights of an alleged victim and you‘re very concerned about not ruining a life and convicting an innocent person. So you have to balance those two, but when you get a complaint that‘s credible and there is some...
FILAN: ... corroborative evidence, you have to go forward. And that‘s why we really do...
ABRAMS: All right.
FILAN: ... depend on defense lawyers...
FILAN: ... to make sure we don‘t convict innocent people...
BURRIS: But it is troubling...
ABRAMS: All right.
BURRIS: ... as a prosecutor, I will tell you that it would be troubling if the person gives an account...
BURRIS: ... that‘s totally different than what was initially said or you can‘t corroborate. That doesn‘t mean it‘s not true. It‘s just—it‘s troubling.
FILAN: That‘s why we have juries.
ABRAMS: Hang on, hang on...
FILAN: That‘s why we have juries.
ABRAMS: All right, all right...
ABRAMS: All right, all right, all right...
ABRAMS: All right, all right, all right, all right. Stop. Guys, here we go. I‘m going to thank Mark Edwards; I thank you very much for coming in. We‘re going to take a break. When we come back, one of the attorneys is here at the courthouse, presumably having a meeting here. We‘ll maybe find out what it‘s about. Kerry Sutton who is representing one of the co-captains of the team joins us for a live interview in a moment.
ABRAMS: We are back at the Durham, North Carolina courthouse where two members of the Duke lacrosse team were indicted, were briefly jailed, were then released on bond. And the question now is will the defense, as they claim, be able to somehow prevent this case from going to trial. Again, as I‘ve been reporting throughout the day, the defense team believes that they have a timeline based on photographs in addition to a surveillance camera from an ATM that will demonstrate that at least one of the members of the team who have been charged in this case could not have committed the crime because they were not at the house at the time of the crime.
Joining me now is Kerry Sutton, who is an attorney representing one of the co-captains of the team who was not charged in connection with this case. Thanks a lot for taking the time. We appreciate it. You were here at the courthouse just now meeting with the D.A.
KERRY SUTTON, ATTY FOR DUKE LACROSSE CAPTAIN: Yes, I was.
ABRAMS: Is that a—I know you don‘t want to get specific about what you were meeting about. Can you describe broadly? Was it an effort to discuss the status of your client? Or was it a more—a broader discussion about where this case is going?
SUTTON: It was broader than that. And of course, this is not the only case I have going on, so we talk about a lot of things whenever I meet and we did talk a little bit about this case.
ABRAMS: Do you think that there‘s any chance he‘s going to dismiss the charges? He seems—I mean because you were saying to me before that you‘re hopeful that this case won‘t go to trial.
SUTTON: Well, what I would like to think is that he has stated, Mike Nifong has stated that his investigation is going on and that as he continues to investigate, that he will uncover a lot of the things that we already know and that he‘s going to learn before long and decide that it is not a good idea to proceed.
ABRAMS: Is he the type of guy who would do that? And I say that only because you hear some of the other attorneys talking about him now in a way where you know, in the typical adversarial way where he becomes demonized, et cetera. Do you think he‘s the kind of guy who would say you know what, I think maybe we got it wrong?
SUTTON: I think that if it comes down to that, if he believes that, that he would say that. I think he would.
ABRAMS: Because here‘s the statement that he‘s putting out today.
It had been my hope to be able to charge all three of the assailants at the same time, but the evidence available to me at this moment does not permit that. Investigation into the identity of the third assailant will continue in the hope that he can also be identified with certainty. It is important that we not only bring the assailants to justice, but also that we lift a cloud of suspicion from those team members who are not involved in the assault.
It sounds like he‘s, you know, he‘s looking for somebody else.
SUTTON: In fact, he is.
ABRAMS: Any chance he‘s gotten any of the players to turn?
SUTTON: No, absolutely not. Because there‘s nothing to turn on. Dan, nothing happened. These guys didn‘t do anything. There‘s nothing that any of them knows that‘s going to be helpful to the D.A.
ABRAMS: But it sounds like you have a lot of respect for Mike Nifong.
ABRAMS: I mean you speak about him a way—in a respectful way and yet, he is entirely convinced. He‘s saying can be identified with certainty, he says, and it sounds like you‘re saying that he‘s going to do a 180 on this and become convinced with certainly that it didn‘t happen.
SUTTON: All he needs to be convinced of is that he cannot prove beyond a reasonable doubt. If we give him reasonable doubt, or even anything beyond reasonable doubt, I think he‘ll make a reasonable decision.
ABRAMS: I think that‘s got to be a hard, hard thing to do. Meaning, you are a D.A. who has taken a public position. Let me let you listen to what he said on this program back in late March about why he is so convinced there was a rape and then I want to ask you that question again.
(BEGIN VIDEO CLIP)
NIFONG: The circumstances of the case are not suggestive of the alternate explanation that has been suggested by some of the members of the situation. There is evidence of trauma in the victim‘s vaginal area that was noted when she was examined by a nurse at the hospital. And her general demeanor was suggested—suggestive of the fact that she had been through a traumatic situation.
(END VIDEO CLIP)
ABRAMS: All right. So that‘s a man who is convinced that there was a rape committed. And you still think that you and the other lawyers will be able to convince him that it wasn‘t—if there was a rape that it certainly wasn‘t committed by any of these Duke lacrosse players?
SUTTON: I think there‘s a chance of that. As I said before, I think he‘s a reasonable man. It is our job to disagree. We will disagree in the future. We have disagreed in the past. And it‘s not my job to come in here and tell him what he should have done. I wouldn‘t come to your place of work and tell you how you should have done your job. I‘m not going to do that. He has taken his stance. I‘m going to argue my stance. Reasonable minds can differ, but they can also agree.
ABRAMS: Any chance your client still might be indicted?
ABRAMS: No chance?
ABRAMS: All right. With that in mind, let me—if you can just stick around for a minute, Susan Filan, I would think that that would be tough, though. I think that once the indictment is handed up that it really is hard to reverse the direction of the wheels of justice, so to speak.
FILAN: Well look, I think there‘s a distinction that needs to be made here. There may come a time where he feels that he cannot prove this case beyond a reasonable doubt. That doesn‘t mean that it didn‘t happen. That doesn‘t mean that she isn‘t telling the truth. That doesn‘t mean that he doesn‘t believe her. But if he cannot prove it beyond a reasonable doubt, he may have to step out at that point and say I cannot proceed for that reason.
And that‘s very, very different than I got it wrong. Sometimes things happen when you‘re trying a case that you never anticipate and you have to say I‘m not going to be able to prove it, but it doesn‘t mean that it didn‘t happen. Another thing that happens to us, trial lawyers all the time, is as we‘re in the middle of a case, it gets better and better and better. And the one point I want to make, and I‘m sure people will disagree with me, but as a prosecutor I used to jump up and down with glee when I heard there was going to be an alibi defense because it‘s the easiest defense to defeat...
UNIDENTIFIED MALE: Right.
FILAN: ... And once you defeat alibi, the guy gets convicted.
BURRIS: I happen to agree with that. I think it‘s very surprising that they would go forward with kind of an alibi defense this early without making it very concrete...
FILAN: But look...
BURRIS: This is obviously going to be...
FILAN: ... that‘s the one thing that they wouldn‘t bring to the D.A. That‘s the one thing that they wouldn‘t nail down for him because they don‘t know...
BURRIS: I‘m surprised at that. I‘m surprised at that. Because that‘s the one thing you lay back on because you ultimately don‘t know if it‘s going to fall apart.
FILAN: And that‘s why they lay back...
FILAN: They didn‘t bring it to him.
BURRIS: That‘s what I...
BURRIS: I agree with you. I think the I.D. question is the biggest question in this case. I don‘t think it‘s a question of whether the rape took place. It‘s a question of do you have the right guy—guys. I mean that‘s going to be the issue of this case.
ABRAMS: Well, but, I think the difference, Yale, would be with regard to the alibi would be that ordinarily alibi defenses are primarily based on eyewitness testimony. If they have video, photographs, receipts, et cetera, those—that kind of defense would be a stronger alibi than simply someone saying—and look, and it sounds like with regard to one of the young men, they have more of an alibi defense than with regard to the other. Because if all you have is someone saying yes, I saw the person, I‘m convinced it was 11:50. That‘s not going to be good enough for someone to say couldn‘t have happened.
BURRIS: Well you also have to worry about...
ABRAMS: Yale, Yale, Yale...
ABRAMS: Yale, Yale, Yale...
GALANTER: All right. Dan, there are two issues that are at play here. One is how did the complaining witness make the identification? Did she pick a face out of the poster, which would make it highly suspect? Or did they give her what‘s called a photo pack, six or eight pictures, asked her to pick one and she said that‘s the guy that did it. And then the defense has to balance that about how strong is their evidence.
If they‘ve got an ATM photograph or a surveillance at a bank camera, something that has a concrete time on it and clearly they could identify this young man, that‘s pretty concrete alibi. And I would be in the prosecutor‘s office tomorrow morning showing him that picture, screaming you‘ve indicted the wrong guy. Look at this photograph. Because photographs don‘t lie.
ABRAMS: Yes, very quickly, Kerry, are they going to do that? I mean are they going to go—are you going go—presumably the people who are representing these two individuals, are they going to go to the D.A.‘s office and scream hey, we‘ve got this.
SUTTON: I think they have tried. They might not be as successful as some of the other folks are in getting into his office. If it works out, they will certainly do it given the opportunity. I believe if it doesn‘t work out they‘re locked and loaded. They‘re ready to go to war.
ABRAMS: Kerry Sutton, thanks a lot for taking the time. We appreciate it.
SUTTON: Thanks, Dan.
ABRAMS: Also thanks to Yale Galanter, John Burris. Susan Filan is going to stick around for the next segment.
Coming up, the latest from Aruba, where a 19-year-old arrested over the weekend in connection with Natalee Holloway‘s disappearance. A judge ruled prosecutors can keep him behind bars. We now know what their theory is and why they say they are holding him. That‘s up next.
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ABRAMS: Coming up, new details about why a 19-year-old was arrested over the weekend in connection with the Natalee Holloway investigation. A live report is up next.
ABRAMS: We‘re back. We‘re finally learning more about why the authorities in Aruba arrested a possible suspect in connection with Natalee Holloway‘s disappearance. A 19-year-old identified publicly only by the initials GVC was taken into custody this weekend. We are learning that according to prosecutors he is—quote—“suspected of criminal offenses that may be related to the disappearance of Ms. Holloway and of offenses related to dealing in illegal narcotics.”
Geoffrey von Cromvoirt is his name. At a proceeding today, a judge allowed prosecutors to hold him for eight more days. Authorities will not confirm the teen‘s identity. But again, the local papers identifying him as Geoffrey von Cromvoirt, a Dutch teen, who reportedly works as a beach patroller to prevent crimes against tourists and whose father owns a security company that provides surveillance for the hotel where Natalee was staying last summer. The attorney for Joran van der Sloot, a former suspect in the case, has said that von Cromvoirt was arrested because of forensic evidence found on his t-shirt and he says his client doesn‘t even know him.
Joining me now NBC‘s Michelle Kosinski is in Aruba, as well as the editor of “Aruba Today” newspaper, Julia Renfro, Aruban attorney Vinda de Sousa, who once represented Natalee‘s family in Aruba and former prosecutor, MSNBC analyst Susan Filan.
All right. Michelle, what do we know about what happened in court today?
MICHELLE KOSINSKI, NBC NEWS CORRESPONDENT: Well there was a proceeding and there was some confusion over whether it was going to be held in the courtroom or if a judge was going to a location where this boy is being held. So the technical side of it was also very secretive today. Not much information coming out. I mean that is quite a great deal, considering what we‘ve known over the past few days from prosecutors, that they actually do say that he‘s suspected of criminal offenses.
It‘s just that what are those criminal offenses? How far do they think the role was here and their suspicions? We know that prosecutors had to present some evidence obviously to have the judge agree to keep him for eight more days. And you know, and the longer they keep this 19-year-old, the more that the players (INAUDIBLE) will say well this arrest seems to be significant in some way. Indeed it does when you see what (INAUDIBLE) put out information wise. Keep in mind...
ABRAMS: All right. Vinda de Sousa, suspected of criminal offenses that may be related to the disappearance of Miss Holloway. Here in the United States we aren‘t allowed to have documents that talk about suspicions that are so vague. Criminal offenses that may be related to the disappearance of Miss Holloway. What exactly does that mean?
VINDA DE SOUSA, ARUBAN ATTORNEY (via phone): Well, you see the system here is different than in the United States. In the United States it‘s accusatory and here it‘s inquisitory. That means that you can arrest somebody on a suspicion of a crime and then you start building up the case against the person. You start gathering more evidence and because the person is arrested, the person is at the disposal of the authorities to be questioned whenever they like. And they have other legal means to investigate the case that they would not have if the person is not arrested.
ABRAMS: Julia Renfro, do you have any idea exactly why they‘re holding him in connection with the Natalee Holloway case? I mean I know we didn‘t know a whole lot a few days ago. Do you know anything more today?
JULIA RENFRO, “ARUBA TODAY” EDITOR: Well just like what you said earlier, what the prosecution has released. And obviously that‘s very little information, but we are under the understanding that there‘s a possibility that this young man was actually seen with Natalee prior to her disappearance.
ABRAMS: And based on what? I mean that is based on what?
RENFRO: Well, there has been some speculation that he was possibly seen on surveillance video with her in more than one of the hotels. As well as in certain documents that have been in the police reports that this young man was associated with Natalee in some way, yes.
ABRAMS: Well, that seems to me, Vinda, to be a pretty big deal in connection with this case. And here we are, 11 months later with someone who presumably we knew something about many months ago.
DE SOUSA: Well, it‘s like you‘re saying presumably. And it‘s all speculation up to this point. And the prosecution and the authorities are not releasing any specific information. So my guess is that—I know for a fact that new tips have been coming in. And again, I‘m speculating but one of those tips could have led to the arrest in combination what they might have known before, but again, it‘s all speculation. We haven‘t heard anything specific.
ABRAMS: Susan, Joe Tacopina is the attorney for Joran van der Sloot on this program regularly has been basically saying that this is a huge development for his client, because he is saying that it will help clear Joran van der Sloot. We‘re a long way from there. We‘re many steps away from that, right?
FILAN: Absolutely. And that‘s his job. His job is to clear his client. And certainly in the court of public opinion, if not ultimately in a court of law. But he‘s saying what he needs to say to get the focus away from Joran and get the focus on somebody else because up until now, Joran is pretty much all we‘ve had and the Kalpoe brothers for 11 months. And it certainly looked significant in the beginning when they were held for such a long time.
I still can‘t help but feel and it‘s a hunch at this point that they‘re holding him—this new arrest person more as a witness. And I know you don‘t arrest witnesses in Aruba, but to say that he‘s got some criminal activity in connection with the disappearance and he was seen prior might just mean that they think he‘s somebody that knows something about what happened that night and maybe he slipped her a joint...
FILAN: ... and that‘s the criminal activity. Obviously, I don‘t know and I‘m speculating, too. But I think...
FILAN: ... they‘re trying to crack this kid and get him to talk. And that‘s not going to help clear Joran.
DE SOUSA: But you know, if I may interject...
DE SOUSA: I‘m sorry, if I may interject...
DE SOUSA: ... you must remember that this new suspect was brought before the judge commissioner today and the judge commissioner had to take a look at his arrest and see if there was sufficient grounds to this point, at this point in time for him to be arrested. And if he were only held as a witness, the judge would have released him...
FILAN: Well I understand that. I understand that. But what they‘re saying is some criminal offense in connection with the disappearance. That certainly doesn‘t...
DE SOUSA: That‘s what they‘re saying...
FILAN: ... necessarily...
DE SOUSA: That‘s what they‘re saying...
DE SOUSA: That‘s what they‘re giving out to the public. But in their...
DE SOUSA: ... affidavit and their subpoena they do have what they suspect him of, but they‘re not releasing it to the public.
ABRAMS: All right. Interesting. Interesting. All right. Michelle Kosinski, Julia Renfro, Vinda de Sousa, Susan Filan, thanks a lot. That‘s a very important point that Vinda just made, something to think about, and the reason we will continue to follow this closely.
Coming up, your e-mails on the Duke gang rape investigation. Seems like everyone has got a strong opinion about this one.
Our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing offenders before they strike. Our search this week is in Ohio.
Police need your help finding Jason Blevins. He‘s 28, six-two, 210.
He was convicted of rape and has not registered his address with the state. If you‘ve got any information on his whereabouts, please contact the Clermont County Sheriff‘s Office, 513-732-7658. Be right back.
ABRAMS: Now it‘s time for “Your Rebuttal”. E-mails keep coming in on the Duke gang rape investigation.
Wendy Christensen in Madison, Wisconsin. “I‘m sick of the coverage of this doing nothing but questioning the rape victim and protecting the lacrosse players. The chances are she is not lying and we have no reason not to believe her until we see actual evidence otherwise.”
Dwayne from Gulfport, Mississippi asks, “Has anyone answered the question as to whether the players who allegedly raped the student wore condoms and if so, would that account for the lack of DNA evidence?”
Dwayne, that is one of the big questions in this case and the problem is that initially the D.A. said they‘d find DNA evidence, now my understanding is that the alleged victim is saying that maybe they were wearing condoms and that could explain why there was no DNA evidence, but that is another one of the interesting issues in this case.
Marianne Gustafson, “I find it ridiculous and insulting to the dance industry and the art form that you and other reporters in TV media continue to call the accuser an exotic dancer. She is a stripper. Call it what it is.”
Lula Brooks, “Abrams, do you ever know how to remain impartial? All you do is get on TV and run your mouth.”
Finally, Mary Bliss in Lincoln, Nebraska, “Thank you, Dan, for doing such a good job covering such a sensitive issue. I think you‘re really great at it.” Well thank you, Mary.
Be right back.
ABRAMS: Our e-mail address email@example.com. That does it for us tonight. This is of course the program to watch for the latest in the Duke investigation. “HARDBALL” with Chris Matthews up next.
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