Guests: Norm Early, Susan Filan, Yale Galanter, Mark Edwards, Carolyn Costello, Benedict Gullo, Larry Silverman, Brian Wice
DAN ABRAMS, HOST: Coming up, another ABRAMS REPORT exclusive. We have just found out exactly what the alleged victim in the Duke lacrosse rape investigation says the two defendants did to her and we also know how she picked them out in a photo lineup.
The program about justice starts now.
Hi everyone. First up on the docket, another ABRAMS REPORT exclusive. We now have the details on how the accuser in the Duke rape case identified the young men charged with her rape, Reade Seligmann and Collin Finnerty.
NBC‘s Michelle Hofland is at the courthouse with the exclusive details. Michelle, what did you learn?
MICHELLE HOFLAND, NBC NEWS CORRESPONDENT: Well first thing this morning, Dan, defense attorneys for the lacrosse players came down here to the courthouse to get from the district attorney copies of the documents that say how the alleged victim identified her alleged attackers. The defense attorneys are being very tight lipped about those documents.
However, NBC News has exclusively taken a look at those documents. Dan, this is what I saw. The date, April 4, about three weeks after the alleged gang rape. Documents say the police only showed her photos of lacrosse players and they flashed the photos one at a time on a big screen in front of her for one minute at a time. And in each case, they asked her do you recognize him. In the transcripts that I read in the photo—when she saw a photo of Collin Finnerty, one of the players indicted, she said that‘s the man who stood behind me and then she briefly described how she says he sexually assaulted her.
Detectives then asked, are you sure. Her response, yes. Then when she got to the second—the photo of the second player indicted, Reade Seligmann, according to the transcripts, she said that‘s the player who stood in front of her and forced her to perform oral sex. Detectives asked her, are you sure? And her response, yes, 100 percent. OK, Dan, about the third alleged attacker. The transcript shows that she thinks that there could be two other guys possibly could be that one attacker.
When she looked at one particular photo, she said—quote—“he looks like him, I‘m not sure.” Then on the very next photo, she says he looks like the guy who assaulted me sort of. Dan, further down, the detectives say how sure about that guy and her response 100 percent—Dan.
ABRAMS: All right, Michelle, just so I‘m clear. The last person you said 100 percent, on the third assailant, she is not 100 percent, correct?
HOFLAND: Oh, no, no, I‘m sorry. Yes, that‘s 90 percent...
ABRAMS: Ninety percent, right...
HOFLAND: Ninety percent on that.
HOFLAND: Thank you.
ABRAMS: Right. So she‘s 100 -- she says she is 100 percent certain with regard to Seligmann and Finnerty, 90 percent certain about another person, right?
HOFLAND: Yes, that is true.
ABRAMS: All right, Michelle Hofland, it‘s an important find you got here. This is important stuff in the context of this case. Thanks a lot. Appreciate it.
Joining me now MSNBC legal analyst, former prosecutor Susan Filan, criminal defense attorney Yale Galanter, North Carolina defense attorney Mark Edwards, and former Denver District Attorney Norm Early. All right, what strikes me about this, Norm, and you‘ve done a lot of these cases, and you‘ve done a lot of lineups, they only showed her Duke lacrosse players?
NORM EARLY, FORMER DENVER DISTRICT ATTORNEY: In this instance, Dan, that may not be suggestive. The issue is whether the lineup and the photos that she is shown suggests to her who the culprit is, and one issue would be, did they tell her that there were only lacrosse players, so she‘s expecting the person to be there. That wasn‘t clear from what Michelle said.
But nonetheless, they‘re all white males, it‘s not as if though you‘re looking for an African American and you have 26 white guys and one African American guy because that would be clearly a suggestive lineup, so we‘re talking about all white males. You can‘t see their height probably, so that‘s not suggestive and if their hair colors are similar, you know, you don‘t—you may not have a suggestive lineup. Showing them for a minute apiece and showing them in that fashion where they‘re up on the wall, maybe that is something that has been cleared with their police department on other occasions where judges have said that that procedure is OK.
ABRAMS: Yes. It is. But Susan, I guess what troubles me is that I would think in an effort to test her credibility, they would put in some other people as well, to say, you know, could it be this person or could it be that person. I mean yes, it‘s fair to say that she said it happened at this party, and this was a Duke lacrosse party, but shouldn‘t they do something to test her credibility?
SUSAN FILAN, MSNBC LEGAL ANALYST: Well the key here and Norm hit on it, is a lineup in order for the results to be admissible in a court of law cannot be unduly suggestive. It can‘t suggest to the complaining witness who the perpetrator is. Now the question is, is it really suggestive to just show lacrosse players and it may be in this case and I got to tell you, Dan, if they made a mistake here, this is a very, very, very serious mistake, because we don‘t—we‘ve got to figure out, did a rape occur and if so, who did it. The I.D. now without DNA is really going to be key. If they blew this, it‘s trouble.
ABRAMS: I can tell you, Yale, that the defense attorneys had told me if it turns out that they only showed her Duke lacrosse players, we‘re going to move to suppress...
ABRAMS: ... that and they‘re going to try and keep that out of the case altogether.
YALE GALANTER, CRIMINAL DEFENSE ATTORNEY: She had to pick three Duke lacrosse players. Two definitely, one maybe. She had no choice to pick anybody else. This is as suggestive a lineup as I‘ve ever seen. It‘s a confined database of people; it‘s highly suggestive just to have shown her Duke lacrosse players. We know that other people were at that party.
So it could have been anybody else. They should test her credibility and that‘s really been the major mistake here, Dan. This district attorney and these law enforcement officers haven‘t tested this complaining witness‘ credibility at all, and that‘s why we‘re seeing all these mistakes.
ABRAMS: Go ahead, Norm. Yes.
EARLY: Dan, if this were a perfect lineup, the defense attorneys would be moving to suppress it. There‘s a suppression motion in any case...
ABRAMS: Right. Fair enough.
EARLY: ... where a lineup is shown...
ABRAMS: Fair enough, but that doesn‘t address the question of whether this is a particularly...
EARLY: I understand.
ABRAMS: ... good motion or not...
FILAN: Exactly. Most suppression motions fail. The question here, might this one actually win?
ABRAMS: Right. All right, Mark Edwards, you‘re our North Carolina guy, what do you make of this?
MARK EDWARDS, DEFENSE ATTORNEY: I‘m not very surprised that they didn‘t include any photographs of anyone else other than the Duke players. I agree. I think it is overly suggestive. There‘s a chance that legally, the out of court I.D. may be suppressed.
I think there‘s a higher standard to keep her from being able to identify people in court. I think that would probably be permitted, but this is going to be such an area for cross-examination. I think the police have really, really hurt their case by doing this in this way.
ABRAMS: We are continuing this special report on the breaking news that we have just found out how the accuser in the Duke rape investigation was able to identify the two people who she says were responsible for this, and almost identifying a third. I guess one of the things that troubled me, Susan, was the fact that as Michelle read it to us, she said that—she first—one person, she said well, might be him and then the next person was sort of, how certain, 90 percent.
FILAN: Yes, which one?
ABRAMS: Yes, but either one...
ABRAMS: I mean just the language she was using didn‘t sound like 90 percent.
FILAN: I wasn‘t sure which 90 percent, the first guy or the second guy?
ABRAMS: Yes, I don‘t know. Just the fact that she says 100 percent certain though, Yale, I mean you know, that‘s exactly what prosecutors want. They want someone who is going to come in and say that‘s the guy, that‘s the guy. She‘s saying 100 percent certainty.
GALANTER: If she was told that she was being shown all of the Duke lacrosse team and she picked these two guys and she said 100 percent certain, their neophyte criminal defense attorney could cross-examine her and make such hay with this lineup. I‘ve seen those pictures. If those pictures came from that team photo, this whole identification procedure will never see the light of day in a courtroom, Dan.
ABRAMS: Yes, because let‘s put up the shot—that wanted poster that we‘ve been showing throughout. All right. We‘ll put that up in a minute. But anyway you see—earlier in the show we showed it where you see all the pictures of the various players.
GALANTER: They don‘t look dissimilar.
GALANTER: I mean all the kids look the same. I mean they really do. They‘re wearing the same type of shirts. They‘re looking into the camera the same way. You know that type of an identification really doesn‘t have its—have a grain of salt...
FILAN: I think another problem, Dan, might be that some of these photos might be dated and some of these boys might have changed their appearance. Their hair may be longer now and if she‘s picking out pictures of...
ABRAMS: That‘s a good point.
FILAN: ... looked like the guys at the party and they look different today.
FILAN: Oh boy.
ABRAMS: Norm, real quick.
EARLY: Yes, I think that‘s an excellent point because appearances do change, and as has been pointed out, if they told them they‘re Duke lacrosse players or there‘s some other way they can be identified as Duke lacrosse players by the shirts that they‘re wearing or something that makes...
ABRAMS: Yes, yes...
EARLY: ... them stand out as Duke lacrosse players...
EARLY: ... that in and of itself is suggestive.
ABRAMS: So you‘re agreeing Norm...
ABRAMS: Norm, you‘re agreeing that if they showed them the lineup from the lacrosse team photo, you would agree even as a tough former prosecutor that that was a suggestive and inappropriate way to show her pictures?
EARLY: Two things, Dan. One is suggestive. The issue is whether it‘s unduly suggestive.
EARLY: Unduly is a critical word.
FILAN: Go, Norm.
EARLY: And that‘s for a judge to decide. OK.
ABRAMS: You‘ve got to love the lawyers. All right. Everyone is going to stick around. We got a lot more exclusive stuff coming up on the Duke rape investigation.
Our other ABRAMS REPORT exclusive has apparently led the Durham police to scramble. They now want to know what else is in the exclusive photos we showed you from the house the night of the alleged rape and they‘re calling a local reporter to try and find out what she knows. Why didn‘t they call me?
And the other woman working as a stripper at the party comes forward admitting she sent an e-mail to a P.R. firm asking for advice on how she could—quote—“spin this to my advantage”. We‘ve got new tape of her and we ask what does all this do to her credibility?
Plus, six players on another top lacrosse team were arrested and charged with sexual assault, a case with many similarities to the Duke investigation. We‘ll talk to two of the defense lawyers who were involved in that case.
Your e-mails email@example.com. Please include your name and where you‘re writing from. I respond at the end of the show.
ABRAMS: An ABRAMS REPORT exclusive from earlier this week has apparently sent authorities in Durham, North Carolina scrambling. The lead investigator on the case called a local TV reporter for our NBC station WNCN to find out what she knows about the exclusive pictures that we aired this week. They were the first pictures seen publicly of the party where the Duke accuser says she was raped.
Reporter Carolyn Costello from NBC station WNCN TV in Raleigh-Durham joins us now. Carolyn, you got a call from Sergeant Mark Gottlieb, who is leading this investigation. Tell us what happened.
CAROLYN COSTELLO, WNCN REPORTER: Well Sergeant Gottlieb called me, I had never spoken to him before, certainly not during this investigation. He said he had some questions he wanted to ask me about the photos that we aired exclusively on NBC. Now, we showed our viewers modified versions of these photos. He was asking about the originals.
First he asked about the photo of Reade Seligmann, one we showed to demonstrate that Reade was wearing a short-sleeved shirt. Now he asked if I could see anything else in this picture, any hands or feet, what was Reade doing, was he holding anything. He then asked me about the photograph of a young man helping a woman, presumably the accuser, into a car.
He asked about the original photo, what color shirt was the young man wearing, was he thin, was he athletic, was he chunky, what color hair did he have. Could someone identify this young man if they knew what they were looking for? He then asked me about the picture of the accuser, the one we showed with her smiling. She had a purse in her hands with a cell phone in it. (INAUDIBLE) anybody else in that picture. Was anyone else standing around her? Some very detailed questions from Sergeant Gottlieb about these pictures that we showed on NBC, pictures that defense attorneys say they did offer to show the district attorney.
ABRAMS: All right, Carolyn Costello, thanks a lot. Appreciate it.
You know, I don‘t quite get what they‘re doing here, Norm Early. I mean so—I mean—here, the truth is, I got these photos exclusively, we put them on the air, our local station airs some of the photos that I had received, and they‘re calling her to find out exactly what was in it, who else was there, I mean that sounds to me like they still don‘t know who was at the party.
EARLY: It is troubling, Dan, and I agree with you, they should have called you to find out what‘s in those photographs rather than calling somebody else...
ABRAMS: Well I‘ll tell you what, I‘m happy to have the sergeant on the program, on the air, so he can ask me questions, I‘ll ask him questions and there won‘t be any ambiguity as to who said what and he‘s invited to come on the program. We‘ll have a conversation. I‘m sorry. Go ahead, Norm.
EARLY: Maybe you‘ll get that phone call before we leave the air tonight.
ABRAMS: Yes or that subpoena...
ABRAMS: Go ahead, Norm. Go ahead.
EARLY: It sounds to me like—that they‘re scurrying Dan. You know you do one thing, Rita Cosby does another thing with the cab driver, they follow up. It doesn‘t appear as if though there‘s a—and speaking of the cab driver, I think that they ought to get real quick with that cab driver and find out if he can see a picture of somebody who said she‘s only a stripper or she‘s only a hooker, because that has a great amount of meaning to me, as an individual who is trying to exonerate themselves or they‘re trying to justify what they‘ve just done or justify what their friends have just done, so it‘s not just a statement she‘s just a hooker. If they can find that guy, maybe this blue code of silence that a lot of people allege that‘s surrounding the lacrosse team like they do around in police departments...
EARLY: ... maybe that might be broken, but it seems to me that they‘re running, they‘re chasing down leads that are being proffered by the media as opposed to being able to penetrate this situation themselves.
ABRAMS: Yes. You know, Mark Edwards, it does sometimes feel like this program is driving the investigation in this case.
EDWARDS: Well, Dan, they can go on your Web site and find those photographs. If they just knew to go to MSNBC, they would see them there.
EDWARDS: I saw them there the other night.
ABRAMS: Yes. What do you make of the fact that the lead investigator is calling, you know, our local reporter to find out what else is in these photos. I mean that does seem to suggest that they don‘t know who else was at the party, right?
EDWARDS: It sounds like they‘re embarrassed by all these disclosures coming out and they‘re trying to play catch-up and that‘s the only way they know to do it.
FILAN: I don‘t have a problem with the police going to the reporter and saying what‘s in those photos, but I have a concern...
ABRAMS: I don‘t have a problem with it either. I mean look they‘re allowed—look, this is the authorities. They can do or they can call whoever they want, they can ask any questions they want, but I‘m asking you what does it mean?
FILAN: My concern, Dan, and I‘m not going to answer that directly...
FILAN: ... but I will in a second...
FILAN: ... is if the defense lawyers tried to go to the prosecutor with these photos before, he should have taken a look at them then.
FILAN: Now to be asking a reporter what‘s in those photos. OK, so he‘s continuing the investigation, he‘s got a duty to do that, but I‘m not sure that he didn‘t drop the ball when he had the chance. Now he‘s playing catch-up. I don‘t have a problem with him getting that information but why now and why not before?
GALANTER: This prosecutor is two step behind—two steps behind every day. Every day, we‘re discussing something new that they should have done two weeks ago that they‘re doing after the fact. When a prosecutor decides to indict somebody for forcible rape, kidnapping, throws them in jail, makes the families put up a $400,000 bond, he‘s got to be sure, he‘s got to know what the cell phone records reflect. He should have talked to the taxicab driver.
ABRAMS: To be fair...
ABRAMS: To be fair, you don‘t always know as a prosecutor going into a case what the defense is going to present as a defense because after all, defense attorneys have unique access to the client and unique access to information.
EARLY: That‘s right.
GALANTER: That‘s really not the issue. The issue is they‘re having a fraternity party in a house. They know people have to come, people have to go. Why not talk to the local cab company? How many cab companies are there, there?
GALANTER: They‘ve got 47 lacrosse players...
GALANTER: Why don‘t they send out a subpoena, get the cell phone records, find out who talked to who when. Start to establish their own timeline before they go to a grand jury.
EARLY: Dan, whenever a defense attorney wants to give a prosecutor information, take it. I don‘t care what it is...
EARLY: ... because it gives you—not only the information it gives you, but it gives you a clue as to what the defense attorneys are thinking about the case and it gives you a clue as to what their potential defense will be.
EARLY: Without that information, you have no idea.
GALANTER: Dan, these defense lawyers banged on the door so hard and Mr. Nifong didn‘t want to hear it.
ABRAMS: Not all of them...
ABRAMS: We talked to Kerry Sutton on this program...
ABRAMS: ... who‘s an attorney for one of the co-captains, she said every time she wanted to meet with Nifong that he met with her.
GALANTER: Yes, but her client has never been a target.
FILAN: She didn‘t know that though at the time...
GALANTER: Oh no...
FILAN: She didn‘t know that at the time.
GALANTER: She knew very early on that her client is not a target.
FILAN: How did she know very early on...
GALANTER: She‘s got an open door policy with him...
FILAN: ... if these identifications weren‘t made until April 4.
GALANTER: She knew.
GALANTER: She knew.
ABRAMS: How do you know?
GALANTER: She knew.
ABRAMS: I understand, but how do you know?
GALANTER: Because very early on there were certain people who the defense was led to believe were the focus and targets of the investigation. Her client was not one of them. That‘s why she...
FILAN: So then they‘ve got more than that photo array on April 4 because...
ABRAMS: I got to tell you, I was under the impression, Mark Edwards that the defense attorneys here didn‘t know it was going to be Reade Seligmann or Collin Finnerty coming into...
ABRAMS: ... the couple days before—you think that they did know?
GALANTER: They knew a couple of days before.
ABRAMS: Right. Coming into a couple of days before, they didn‘t know.
GALANTER: Dan, when the defense lawyers...
EDWARDS: I don‘t think so...
GALANTER: ... went to Nifong with the pictures and the evidence that they had...
FILAN: Which was the Friday...
ABRAMS: Hang on. Let me let Mark Edwards...
FILAN: ... before the Monday of the indictment.
ABRAMS: I was a little rude. I threw the question to Mark Edwards and then you guys are sitting here with me. Go ahead, Mark.
ABRAMS: Yes. Go ahead, Mark.
EDWARDS: Yes, I spoke with a number of the attorneys that were involved in the case the week leading up to the indictment, and none of them were sure. I mean they were all walking around not knowing whether it was going to be their client that was indicted or not. So at least with the three or four people I spoke with, they didn‘t seem to have a clue of whether it was going to be their guy or not or whether it was going to be someone else‘s client.
FILAN: And again the issue may be that they did go to Nifong with certain things and he did listen to them, but he didn‘t buy what they were saying, so maybe that‘s the discrepancy. If he just shut the door, didn‘t listen to them, and didn‘t look at their stuff, I have a real problem with that. If he looked at it and said nice try...
FILAN: ... that‘s completely different.
ABRAMS: Kerry Sutton says basically that Nifong listened and didn‘t agree with her.
FILAN: OK. Fair enough.
ABRAMS: Her point was mine, you know, people can differ on things.
ABRAMS: Other defense attorneys have basically said look I went there and he wouldn‘t talk to me.
GALANTER: He wasn‘t interested.
GALANTER: And Norm is right, I mean that‘s just horrible. Any law enforcement person, whether you‘re a district attorney or an officer, you‘ve got to listen.
GALANTER: I mean that‘s the best investigative tool you have, and this guy is just not listening.
ABRAMS: All right. Let‘s do this. Let‘s take a break because we‘ve got a lot more new exclusive information to report to you in the context of this investigation. We got more on this—the other woman who was at this party, the other dancer. We‘ve got new tape and we find out now that she had contacted a P.R. firm trying to figure out how to make the most of it. She‘s now doing interviews. We can show you her on camera. It‘s coming up after this break.
ABRAMS: Coming up, the second stripper from the party at the Duke lacrosse team identifies herself. Now saying she may not know everything that happened at that party. But she still has some strong suspicions. And she pointed out she wanted to—quote—“profit from everything that‘s happened”. Coming up.
ABRAMS: She was the second—quote—“exotic dancer” at the Duke lacrosse team‘s party. Defense attorneys say she told them she had doubts about the accuser‘s allegations of rape. Well, while she would only be interviewed in shadow on Sunday, Kim Roberts has come out of the shadows and gone public, telling The Associated Press she now thinks that the young men are likely guilty, though admitting she can‘t necessarily say a rape occurred.
(BEGIN VIDEO CLIP)
KIM ROBERTS, SECOND DANCER AT DUKE LACROSSE PARTY: I was there from the beginning to the end. The only thing I did not see was the rape, because I was not in the bathroom at that particular moment. Everything leading up to it I was there, everything leading from it I was there.
(END VIDEO CLIP)
ABRAMS: And Roberts also sent an e-mail to a New York P.R. firm, 5W Public Relations, saying—quote—“I found myself in the center of one of the biggest stories in the country. I‘m worried about letting this opportunity pass me by without making the best of it and was wondering if you had any advice as to how spin this to my advantage. I‘m determined not to let any negative publicity about my life overtake me. I‘m so confused as to who to talk to for relevant advice.”
Just another piece of bad news for the prosecutor, Mike Nifong. You know, Susan, it seems like every day—I mean, you‘re the prosecutor and you find out that one of the key—the key witness is going to a P.R. firm to try to spin this to her advantage.
FILAN: OK. I don‘t necessarily have a problem with that and here‘s why. If her life is about to go down the drain because she‘s been outed and now she‘s outing herself as the stripper who was at the party, she is going to be in a scrum of media attention, which she may not be prepared to handle. She may be saying look help me. I mean I don‘t want this to ruin my life. That is going to come out on direct and she‘s going to have to explain it. She‘s going to have to say I‘m not trying to make money, I‘m not trying to write a book, I just didn‘t want to ruin my life. Of course the cross-examine of that is probably a little more fun than the direct.
GALANTER: OK, well I‘ll give you the cross-exam. Here‘s the cross-exam, (UNINTELLIGIBLE). She gets arrested for violation of her probation for an embezzlement charge, $25,000 as a payroll clerk from her employer. She gets to bond out of jail without having to put up the 15 percent fee.
The prosecutor goes in, asks the judge to waive that for her.
She already starts to get benefit and in her interview she says the reason I‘m changing my story is because I‘m questioning the credibility of the defense lawyers. They have let the media know about our criminal past. That‘s her motivation for changing her story.
ABRAMS: She says...
GALANTER: Not that she wants to tell the truth, but she‘s upset with the criminal defense lawyers for doing their job.
ABRAMS: She says—quote—“in all honesty I think they‘re guilty, but I can‘t say which ones are guilty, but somebody did something besides underage drinking. That‘s my honest to God impression.”
She goes on, if the boys are innocent, sorry, fellows, sorry you had to go through this. If they‘re innocent, they will not go to jail but if the truth is on their side, why are they supporting it with so many lies. I mean it does sound, Norm, like she‘s particularly upset about what the defense attorneys have done with regard to her.
EARLY: Dan, I see several things here. The first is that she chose a poor word when she chose the word spin, because that means something to all of us. The second thing is that she‘s saying something happened in that bathroom. Now if you go back to what Michelle Hofland said earlier in the report...
ABRAMS: But she doesn‘t know. She doesn‘t know if something happened...
EARLY: Well, she says I don‘t know what happened, but I know something happened, at least that‘s my impression now that something happened because I wasn‘t there. But go back to Michelle now...
GALANTER: Norm, the last week she said nothing happened. She didn‘t see anything and she didn‘t hear anything.
EARLY: Well I‘m just saying this. Michelle Hofland said that this is the guy who made me perform oral sex. I think that -- and this woman just now used the word rape, and I think when we think of rape, we think about penetration with an object of the vaginal area.
EARLY: Hold on now.
ABRAMS: It‘s usually the defense attorneys who are obscuring the issues, Norm.
EARLY: No, no, no, no, this is very important because it was only a seven-minute window...
EARLY: ... and oral sex can be accomplished in that time. If one person is holding and the other person is doing something else...
ABRAMS: That‘s fine. OK...
ABRAMS: OK. All right. That‘s fine.
FILAN: But we only think it‘s a seven minute window because...
EARLY: All three of them...
FILAN: ... we bought the defense time line. Let‘s not do that yet.
FILAN: Time line is still up in the air.
EARLY: But all three of them could be charged...
ABRAMS: But we‘re changing the subject here.
ABRAMS: Wait a sec. Wait a sec...
EARLY: They can all be charged.
ABRAMS: All right. That‘s fine. There‘s a window. Everyone accepts the fact that there is a window when this could have happened...
UNIDENTIFIED MALE: OK.
ABRAMS: ... even if you accept the defense‘s time line. But I want to talk about this crucial witness. I mean this is the other woman who was there. If she says that they went into the bathroom right after they stopped dancing, this case is over and I‘ll tell you why, because remember, the young men say that they didn‘t leave immediately. The two of them went into the bathroom for 10 minutes, that she changed her clothes and that the accuser was apparently putting on nails in the bathroom. The woman, the accuser says, we left immediately after that happened and they coaxed me back into the house. That‘s going to be a crucial point.
FILAN: How do the boys know she was putting on nails in the bathroom...
ABRAMS: They don‘t. They don‘t.
ABRAMS: They say presumably.
ABRAMS: They say presumably because they found nails in the bathroom.
FILAN: OK. Well there‘s a presumption that can‘t be proved.
ABRAMS: Right. But you know...
GALANTER: The nails were in the bathroom.
ABRAMS: Yes. I mean there were nails were in the bathroom. Either she...
ABRAMS: Either they—either she fought them off...
ABRAMS: ... or she was putting on nails.
ABRAMS: All right. Let me play one more piece of sound from—this is a new piece of sound from—yes—from Kim Roberts, the other dancer there, saying that if they‘re telling the truth, they‘ve got nothing to worry about.
(BEGIN VIDEO CLIP)
ROBERTS: If they‘re innocent, they should have nothing to worry about. They should sit back, relax, brush their shoulders off and feel good. They shouldn‘t have anything to worry about. If the truth was on their side, why are they supporting it with lies?
(END VIDEO CLIP)
ABRAMS: See, that seems to be the focus. I mean it really—she seems to be very concerned about other things. She doesn‘t know. I mean she doesn‘t know whether it happened or not. She doesn‘t...
FILAN: OK, but here‘s what she says. Here‘s what she says. She says, I never met this girl before, but when she got there she seemed perfectly sober.
FILAN: I saw her take a sip of a drink and by the end she was inebriated intoxicated.
FILAN: She was—they were separated, she was in that bathroom. And it‘s her gut feeling that something happened. Of course she doesn‘t know because she wasn‘t in the bathroom. The only people that know are the accuser and the accused, if in fact they were in that bathroom with her. So that‘s—what is different about this than any criminal prosecution. The other thing is prosecutors don‘t get to pick their victims, they don‘t get to pick their witnesses and nobody is perfect, so she may have some baggage, but that‘s not the end...
ABRAMS: Forget about her baggage.
FILAN: And the other thing, Dan...
ABRAMS: She doesn‘t know anything...
FILAN: ... lots of witnesses are cooperating with the prosecution to get some benefit and that happens all the time. Defense lawyers get to examine that on cross and that happens.
ABRAMS: I‘m not concerned about that. I‘m concerned about the fact that I don‘t think she‘s got any information that‘s relevant. I mean the only thing she‘s going to be able to say which will corroborate the accuser‘s story is if she says we never went into the bathroom, period, not I wasn‘t in the bathroom at the time of the rape, but we never went into that bathroom and my understanding is she may say that. She may say we never went into the bathroom. That will be a crucial piece of evidence for the prosecutors because that would contradict what the young men have said, right, Mark Edwards? You want to jump in on that?
EDWARDS: Yes, I think there‘s a very good chance this woman will not hit the stand for the state. She is a landmine waiting to explode. She has very little she can say that‘s going to help their case and so much damaging evidence based on what she‘s done and what she‘s said in the past that you lose more by putting her on than you gain by putting her on.
EDWARDS: I don‘t think she‘ll testify.
EARLY: I agree, Dan that she doesn‘t really help in the sense that she can say what happened in that bathroom. She‘s talking about a hunch...
EARLY: She‘s talking about a gut feeling, but she‘s not talking—but if she can testify about the way the woman was before she went into the bathroom and the way she was after she came out of the bathroom and there‘s a marked difference in her behavior, then that may be some evidence, not conclusive by any means, but some evidence that something happened.
FILAN: And Norm, that‘s a good point because if she‘s just saying it‘s my hunch, that may never be admissible because speculation...
FILAN: ... isn‘t admissible testimony.
ABRAMS: Here‘s Kim Roberts again. This is another piece of sound from her when she was in the shadow about the accuser‘s state.
(BEGIN VIDEO CLIP)
ROBERTS: She was just incoherent, she couldn‘t—she had to be helped to the car, you know, so she couldn‘t really walk on her own. She couldn‘t—she really couldn‘t get her thoughts together enough to answer any questions. You know, she just was out of it. She was out of it.
(END VIDEO CLIP)
ABRAMS: Yes, I don‘t know. I don‘t know which way that cuts, but I mean she—because you know, on the one hand as we‘ve talked about before, the claim has been she‘s saying she‘s 100 percent certain that she can name Collin Finnerty as the person who raped her from behind and she says she can say with 100 percent certainty that Reade Seligmann was the other person in that bathroom and we‘re also hearing on the other hand that she was so out of it that she couldn‘t even walk to the car.
FILAN: Well, of course, that‘s a difficult area for the prosecution, if their witness is going to be so inebriated and so intoxicated that not only is the I.D. perhaps overly suggestive and suppressed, but may be challenged because her ability to recollect is impaired, but we don‘t know at what point...
FILAN: ... the drug kicked in and it could have been that she was raped and then it happened.
ABRAMS: I‘m going to say...
ABRAMS: If the prosecutors have a player who is cooperating with them, that changes everything. You would agree with that, Yale, right?
GALANTER: Oh, totally.
GALANTER: If they have someone on the inside...
GALANTER: ... that they have given immunity to...
GALANTER: ... someone who is cooperating...
ABRAMS: Who‘s going to say...
GALANTER: ... whole new...
GALANTER: ... whole new ballgame.
ABRAMS: Right. Right.
ABRAMS: And everything that you‘re saying can be taken...
ABRAMS: ... with an enormous grain of salt...
GALANTER: But where we‘re at now...
ABRAMS: Right. You don‘t know.
GALANTER: Remember, conviction...
GALANTER: ... equals proof beyond to the exclusion of a reasonable doubt.
ABRAMS: All right.
GALANTER: This case, every witness has doubt, every piece of evidence has doubt. Prosecutor at this point...
GALANTER: ... has nothing.
ABRAMS: All right...
FILAN: But we don‘t know what he‘s got.
ABRAMS: I got to wrap it up...
FILAN: We don‘t know what he‘s got.
ABRAMS: Susan Filan and Yale, we don‘t know. We don‘t know. But we do know this is a case—I think everyone agrees that it‘s a case with a lot of problems as of right now. All right. Yale Galanter, Mark Edwards, Norm Early, Susan Filan, thanks a lot.
EARLY: Thank you.
ABRAMS: Coming up, it sounds a lot like the rape investigation at Duke. Players on a top college lacrosse team charged with sexually assaulting a woman. It happened. Two of the lawyers in that case join us.
And former Enron CEO Jeffrey Skilling wraps up his make or break testimony on the stand. How did he do? We‘ll talk to someone who was watching all of it.
ABRAMS: Coming up, it‘s not the first time college lacrosse players have been charged with rape. Years ago three St. John‘s players were accused, but acquitted. We‘ll talk to their lawyers coming up.
ABRAMS: We‘re back. It sounds eerily familiar. A group of white college lacrosse players charged with sexually assaulting a black woman at an off campus house in March, but the year was 1990 and the suspects were St. John‘s students. The 21-year-old accuser in that case was acquainted with one of the men who apparently offered her a ride home, told her he had to stop at home to get some money for gas. The accuser apparently went willingly into the house where she had at least one drink. It‘s after that she said that she was sexually assaulted by a group of men while she floated in and out of consciousness.
One of the men was granted immunity from prosecution in exchange for his testimony. Three others eventually pleaded guilty and three took their case to trial and were acquitted. So what does that case tell us about the Duke investigation and how it may play out?
Well let‘s ask them. Joining me now the attorneys for two of the men in the St. John‘s case, Benedict Gullo who represented Matthew Grandenette (ph) and Larry Silverman, who represented Andrew Droggy (ph). Thanks very much, gentlemen, for coming on the program.
ABRAMS: Fair comparison between this case and the St. John‘s case?
BENEDICT GULLO, ATTY FOR SUSPECT IN ST. JOHN‘S SEX ASSAULT CASE:
Very fair comparison.
ABRAMS: Why? What are the similarities?
GULLO: You have the race issue, which is a similarity. You have the fact they were lacrosse players. The complainant is black, the lacrosse players are white. You also have as far as the accusation is concerned, a very horrible accusation and you‘re going to have the same thing as far as the feeding frenzy is concerned with the media.
ABRAMS: And you also have the fact that at least your client was saying, there‘s no sex that I knew of, case of mistaken identity.
LARRY SILVERMAN, ATTY FOR SUSPECT IN ST. JOHN‘S SEX ASSAULT CASE:
Right. That nothing really happened. That was you know his defense to the case.
ABRAMS: How much did the two of you do in terms of going public before the trial, to say to the world, who was watching at the time, you know, don‘t crucify my guys yet?
UNIDENTIFIED MALE: We really didn‘t go public at all. We realized that this was a case of irreconcilable differences. This was a case that was going to be tried, so we didn‘t want to highlight any of our defenses until we were in the courtroom.
ABRAMS: Does it sound to you like this Duke case may even be a weaker case than the case that was presented against your clients?
GULLO: Well the fact that there‘s no forensic evidence at this point is extremely critical and it‘s a big difference, even though in our case we had very limited forensic evidence.
ABRAMS: But they got people to turn in your case, right? Lacrosse players testifying...
SILVERMAN: They pressured people into testifying and the testimony turned out to be totally false.
ABRAMS: Do you think that that will happen here?
SILVERMAN: Well, what they should have done, if they were going to do it, before they brought the indictment. That‘s when they had their pressure. Why—it baffles me why they haven‘t spoken to most of the players by now.
ABRAMS: Did you know that some of their colleagues, their former players, had turned on them when it happened or did you not find out until closer to the time of the trial?
UNIDENTIFIED MALE: Well...
SILVERMAN: Right at trial.
GULLO: Right at trial.
ABRAMS: That‘s the—and had they just turned right before the trial?
ABRAMS: So up to that point, there was a united front.
SILVERMAN: Well it wasn‘t united because we were severed out, we were separated out, the three of us, in being the first trial, so we did not know what was happening with the other defendants. Their trial was put off into the future.
ABRAMS: And in the trial, did the accuser‘s credibility get—I mean you know she had been—did they claim she was intoxicated, et cetera, and did she get her background all brought up and...
GULLO: No. As far as her background was concerned, nobody cross-examined her or tried to do anything, which was going to embarrass her. She had made many statements prior to trial. She had made statements to the (UNINTELLIGIBLE) school officials. She testified in the grand jury and all of those statements had tremendous discrepancies.
ABRAMS: And that was the same defense that you were pursuing?
ABRAMS: All right. Gentlemen, thanks very much. What do you think is going to happen? What do you—do you think—let me ask your prediction, do you think this case is going to go to trial?
SILVERMAN: You have to look at what this prosecutor is doing. It sounds like, if he‘s going to go to trial with this documentary evidence, it‘s going to be a very quick case for the defendant.
ABRAMS: Do you expect the case to go to trial?
GULLO: Yes I do.
ABRAMS: All right. Gentlemen, thanks very much for coming in.
SILVERMAN: You‘re welcome.
ABRAMS: Coming up, former Enron CEO Jeff Skilling steps down after eight days on the stand. His co-defendant Ken Lay about to take his turn. The question, did Skilling do enough to keep himself out of the slammer.
And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing offenders before they strike. Authorities are looking for Gary Mead.
He‘s 31, five-ten, 186, convicted of gross sexual imposition, has not registered his address with the state. If you‘ve got any information on his whereabouts, please contact the Summit County Sheriff‘s Office, 330-643-8635. Be right back.
ABRAMS: It may have been a make or break week in the Enron trial. Former CEO Jeff Skilling spent eight days on the witness stand, fielding questions from his own attorney and then some tough cross-examination from federal prosecutors. He‘s charged with 28 counts of fraud, conspiracy, insider trading, lying to auditors. The defense—the company was actually in pretty good financial shape when the feds came knocking.
So how did he do on the witness stand? Joining me now is Houston criminal defense attorney Brian Wice who was in court for much of Skilling‘s testimony. Brian, thanks a lot for coming on the program. Appreciate it.
BRIAN WICE, CRIMINAL DEFENSE ATTORNEY: Good to see you, Dan.
ABRAMS: All right, Brian, the overview, how did he do?
WICE: Well, at the end of the day, after some eight days of testimony, Dan Petrocelli looked like his client had just been bar mitzvah. He was incredibly proud of the fact that Jeff Skilling stood toe to toe with a pretty talented federal prosecutor, Sean Berkowitz, and ultimately went the distance. Look, Dan, it‘s clear that Berkowitz blooded him, there are too many gaps on the 28 counts of this indictment really for Jeff Skilling to be acquitted on them all, but ultimately Skilling held his own. He held his (UNINTELLIGIBLE) temper in check for most of the direct and cross-examination and really I think he fought Sean Berkowitz to a draw.
ABRAMS: But they did point out, didn‘t they, inconsistencies about Skilling‘s position that the company was doing great, there was nothing wrong, and then they say oh wait a second, when you left the company, you weren‘t entirely certain everything was so rosy.
WICE: No, and that‘s a good point. Look, the irony, Dan, is that prosecutor Sean Berkowitz probably made the most hay with an allegation that‘s not even in the indictment, that Jeff Skilling funded the photography company of a former girlfriend and then lied about it and may have back dated checks, but that‘s important, as we all know, because it ultimately goes to the general issue of credibility and if anybody was keeping a list of the number of times that Jeff Skilling said I don‘t know, I can‘t recall and I don‘t remember...
WICE: ... I think that we‘re going to hear about that in final argument.
ABRAMS: He‘s known for being kind of arrogant. Did he come across as a likeable guy?
WICE: He did, but you have to understand that he is arrogant, he is the traditional smartest guy in the room like the movie says, but this jury over eight days got to see a side of him that was ultimately Jeff Skilling the regular guy, Jeff Skilling the scholar. Clearly, Dan, he had a mastery of the facts and the subject matter I really think unlike any witness I‘ve ever seen in any federal case.
ABRAMS: So what do you expect, Brian? I mean look, with regard to Skilling, most of the evidence is in now. I mean we‘re going to see a little bit more of the defense, but the most important witness has now testified, is he going to be free and clear?
WICE: I don‘t know if he‘s going to be free and clear, I think what we could likely see, certainly in light of the performance that I think Jeff Skilling turned in is what happened in the broadband case a couple of months ago, where you had a combination of a hung jury on multiple counts and some not guilties. I don‘t think this jury is ultimately going to acquit him of every count...
WICE: ... or convict him on every count. I think ultimately we‘ll see a bunch of not guilties, maybe some hung jury situations on some of the other counts. I think Jeff Skilling still has a pretty good shot of walking out of the federal building with his family and not with the federal marshal.
ABRAMS: Wow. So it sounds like what you‘re saying is you do not expect that he‘s going to be convicted unanimously, beyond a reasonable doubt, on any counts by this jury?
WICE: Well, I think he‘s got a pretty good shot on most of the counts, but certainly there are a number of counts where there are just too many coincidences that ultimately add up and the whole general credibility question, Dan, is one that is going to plague him, but remember, all Jeff Skilling needs is one of those 12 jurors, the Enron task force needs all 12.
ABRAMS: Yes. All right, quick question—Susan Filan is here. Susan Filan, Ken Lay going to take the stand next up. Do you think that how Lay does impacts Skilling‘s case?
FILAN: It‘s not supposed to, but I do think that it could, because this is such a carefully orchestrated and collective thing that if one does well and one does poorly I think it is going to overshadow the other, which is sometimes why people want to sever their trials.
ABRAMS: Brian, do you agree with that?
WICE: Absolutely and I think that the main thing that Skilling‘s lawyers did to earn their $50-million fee—or excuse me, Ken Lay‘s lawyers did was not to ask Skilling a single question. I think heading into Monday, Dan, Ken Lay feels pretty confident that his name didn‘t get dragged up all that much during Skilling‘s direct and cross.
ABRAMS: Brian Wice, are you going to be back in court for Ken Lay or are you going back to work?
WICE: I‘m going to be there Monday morning, Dan. How can you miss this...
ABRAMS: I agree. Look, I agree and we‘re thrilled you‘re there. You know, we love it having you on. Brian Wice and Susan Filan, thanks a lot.
FILAN: Thank you.
ABRAMS: Coming up, your e-mails keep coming in on the Duke lacrosse case. I respond when we come back.
ABRAMS: Now it‘s time for “Your Rebuttal”. Plenty e-mails still coming in about the Duke lacrosse rape case.
Steve from Plano, Texas writes, “Why isn‘t anyone asking what the hell are these guys doing hiring a stripper for their party in the first place? Everyone keeps trying to make her out to be the morally bankrupt person when that very same case should be made first about the Duke boys.”
From Goldsboro, North Carolina, Jennifer asks, “Why is it that this has turned into a racial issue with the NAACP and others? Many women get raped every second of every hour around the world.”
Maria Mahler from Portland, Oregon, “Why haven‘t you reported that DNA from the two men arrested was found on the bathroom floor and that they don‘t live there or use that bathroom regularly?”
Let‘s see, Maria. Because it‘s not true. They found DNA from two of the men who do live there who have not been charged. That‘s why.
Then on Congresswoman Cynthia McKinney who we learned from a police report allegedly hit a police officer earlier this month with a closed fist, the report said after the officer did not recognize her without a lapel pin that identified her as a member of Congress.
Bruce Scroggins from Minneapolis, Minnesota, “As a black man we do not care for anybody grabbing us, and we react, in some instances, with get your hands off of me. I imagine she reacted in a similar way.” And that makes it OK to hit a police officer?
Richard Roberts from Summerville, South Carolina, “If the tables were turned and this police officer hit Congresswoman McKinney in the chest, this police officer would be arrested.”
And David King from Ocoee, Florida, “If I hit a cop with a hand, fist, cell phone, pay phone, megaphone or xylophone I‘d be in jail, period.”
Your e-mails abramsreport—one word -- @msnbc.com. I personally go through all of them. We get hundreds and hundreds every day. And I‘m telling you, I go through all of them at the end of the show. So every one of the ones you write, I get to look at and I thank you because you—a lot of you have really had interesting insights about the Duke case in particular lately and you all make me think.
That does it for us tonight. Coming up next, “HARDBALL” with Chris Matthews. Norah O‘Donnell is filling in for Chris. Have a great weekend. See you Monday. We‘ll have more on the Duke story...
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