Guests: Susan Filan, Yale Galanter, John Burris, Mark Edwards, Joe Cantamessa, Victoria Campbell, Mike Gentine, Tim Jansen, M.H. Reese Norris, David Schwartz
LISA DANIELS, GUEST HOST: OK, thanks so much, Norah.
Coming up, the Duke lacrosse rape case goes to the courtroom where the D.A. hands over hundreds of pages of evidence to the defense, and the judge reduces bail for one of the defendants.
The program about justice starts right now.
(BEGIN VIDEO CLIP)
JOE CHESHIRE, DAVE EVANS‘ ATTORNEY: We have not seen anything in that (UNINTELLIGIBLE) review that indicates that our client is guilty of any criminal act related to any assault, sexual or otherwise, and we in fact see things in there that indicate that he is not.
(END VIDEO CLIP)
DANIELS: The attorney for one of the Duke lacrosse players reacting to new evidence D.A. Mike Nifong turned over this afternoon in court.
And hi everyone. I‘m Lisa Daniels. Good to be back.
First up on the docket, a big hearing in the Duke rape case today. Here‘s what happened. The judge lowered Reade Seligmann‘s bond to $100,000. There are no toxicology reports included in any of the 500 pages of evidence Nifong turned over today, or in the nearly 1,3000 pages he turned over last month, and the judge agreed to release the accuser‘s cell phone records to both the prosecutor and the defense.
MSNBC analyst and former prosecutor Susan Filan was in court for the hearing and joins us now. Susan, good to see you. You were there. What are the...
SUSAN FILAN, MSNBC LEGAL ANALYST: I was. I think the highlight really was the judge lowering the bond. Not that that‘s a commentary on guilt or innocence because it isn‘t. What it has to do with ensuring their appearance and whether they‘re a flight risk, but the judge remarked that it was in fact a hardship on the family friend that posted the $400,000 cash bond because he is losing out on a lot of the interest that that would generate, and the Seligmann family feels that they have to pay him back, so I thought that was significant.
The release of the cell phone was done with a little wry comment by the court, which I thought was fun and interesting. He said they don‘t mean much to you, but maybe they will mean something to you, because apparently it‘s just logs of numbers. He said I will hand them to the state‘s attorney, to Mike Nifong, and then he can hand them to the defense. The defense said no, your honor, we have packets for both, so they were disclosed simultaneously. It‘s going to be very interesting to see what each side makes of them if anything.
DANIELS: All right, that‘s a pretty good update. Susan, stay with us. Let‘s bring in the panel, former California prosecutor John Burris, criminal defense attorney Yale Galanter, and North Carolina defense attorney Mark Edwards.
Yale, I want to begin with you. You heard Susan talk about the reduced bond. Are you surprised that the judge actually bought the argument, hey our family is having trouble with the 400,000, our kid is good, please reduce it to 100,000. How rare is that?
YALE GALANTER, CRIMINAL DEFENSE ATTORNEY: Oh, it‘s not rare in a case like this. Four hundred thousand dollars, Lisa, was clearly an excessive bond. I have been defended people who‘ve been charged with murder who haven‘t had $400,000 bonds. This young man has excellent ties to the community. He is not a risk of flight.
He is going to appear at every court hearing. He comes from a great family. He‘s got a great record. He‘s never been in any serious trouble before. This was a classic case where a bond reduction was appropriate. The defense expected it and I think the judge did the right thing.
DANIELS: John, do you have a problem with the bond being reduced?
JOHN BURRIS, FORMER PROSECUTOR: I have a problem with the reasoning for reducing the bond. I mean if the reason is that somebody else is suffering as a consequence of that, I don‘t find that in particular compelling. I do think (UNINTELLIGIBLE) bonds are reduced because sometimes you know you can say they were set too excessively at the time.
It‘s really (UNINTELLIGIBLE) what was the bail schedule that they had for those types of cases and if the bail schedule was set at 200, and it went higher than that, then that‘s (UNINTELLIGIBLE) excessive, but the bail schedule is 400, and I don‘t know why they—the bail should have been reduced just because of what their record is. I assume those matters are considered during the normal course of events. But I agree he is probably not a flight risk, and so that might have been appropriate, but because it is someone else‘s issue that does bother me.
DANIELS: Yes, but that is the reason for bond. But Mark let me bring you into this discussion. There were reports that the alleged victim was drunk, but hey there are no toxicology reports. What do you make of that?
MARK EDWARDS, NC DEFENSE ATTORNEY: Well, that‘s interesting. The history I found in the past with victims that go to the hospital is that sometimes there are no toxicology tests done unless the person is going to be going under anesthesia and going under surgery. So I am not entirely surprised that there were no tox reports done.
DANIELS: Yale, there are 536 additional pages of evidence. That‘s in addition to the 1,300 pages of discovery. It‘s a little overwhelming. How does a lawyer handle a stack of papers that big, and you have to hunt through it for clues?
GALANTER: Well, Lisa, you know, the defense is looking for specific things. They want, you know, whatever the complaining witness said to any police officers, nurses, any medical personnel, they want the you know Kim Roberts Pittman‘s statements to any police officers or medical personnel. That‘s really what they are looking for. In this case, they thought there could be the access center report, where you know the police officer on the scene (UNINTELLIGIBLE) involuntarily commit her, and that would have been the first time she claimed she was raped.
They wanted to see if there was any of that. Obviously, there‘s not according to Mr. Nifong. You know the original 1,300 and odd pages really didn‘t contain a bulk of material, but there were about 100 or so pages that were very valuable to the defense, and I suspect in these 536 pages, as Mr. Cheshire has already indicated, there will be more exculpatory evidence that we‘ll learn about in the days to come for the defendants.
DANIELS: Let‘s talk about the cell phones, and Susan I will direct this to you. First of all, here is what the judge said when releasing the cell phone records to the attorneys. Let‘s listen.
(BEGIN VIDEO CLIP)
HON. RON STEVENS, DURHAM COUNTY SUPERIOR COURT: I have reviewed the sealed documents, have unsealed them, and in my discretion, after a review of that do not believe there is anything here that cannot be released to the parties and so I would intend to do that.
(END VIDEO CLIP)
DANIELS: Susan, I want to go back to you. You said that wry comment that he made, you know a little sarcasm; I don‘t know what these records mean. Why should a judge comment? I mean he has no idea what those numbers are. Perhaps they are very significant. Maybe that‘s the...
FILAN: Oh, no, no, no...
DANIELS: ... smoking gun in the case. Did I misunderstood you?
FILAN: No, no—yes, I‘m sorry. It was my fault. He was very, very appropriate. His decorum and his demeanor in court was excellent. What he was basically saying is I reviewed them as seriously as I can. I don‘t see anything, you know, that violates anybody‘s privacy or would violate anybody‘s privilege, but just—they are a bunch of numbers to me. And it was appropriate. It was cute because it is just a bunch of numbers.
But what‘s important it does show the digging now that‘s going to have to take place on both sides for the prosecution and the defense. And Lisa, if I could just quickly comment, being in that courtroom today was so important for me, it was so sobering, because once again, I got to see with my own two eyes two sides to this very puzzling case. Sometimes it looked so clear one way, sometime it looked so clear the other way, but today I saw advocates on both sides of the table, each very committed to their positions, each really believing their own side, and again, it does show this is a serious proceeding.
We really don‘t know what happened. We are guessing, and it is probably at some point going to be up to a jury to make what I think is going to be a pretty hard call at looking at the state of the evidence as we know it to be so far. Nifong confident. The defense confident. The judge in charge, we were in court today, Lisa, and it was a good proceeding.
DANIELS: Well right back at you, Susan. What changed your mind? Was there something in particular that made you think maybe it‘s not so clear-cut, maybe there‘s more to one of the stories that I didn‘t see.
FILAN: Watching the lawyers‘ demeanors and listening to the judge parse through these numerous motions for more discovery, some of them had like 12 pieces to them, and they went—and there were three defendants, so they had to go through that three times, so you go one, should we release more or less, and the district attorney would say I‘ve already turned over that.
The defense would say well if it‘s not in our new discovery we‘ll come back and ask more. The judge taking this so seriously, so carefully, rather than sort of acting like this is a bum case, this thing should be tossed, it was taken so seriously that it made you realize again there is actual evidence that‘s being disclosed that people have to pour through and each side compelled by their own belief in the truth of their own side, the defense lawyers so sure that their clients are innocent. The district attorney saying basically what he said in an e-mail released in response to a request to comment by “Newsweek”, nothing has changed for me since day one. I feel it in my gut.
FILAN: It was pretty interesting.
DANIELS: It sounds really interesting. I want to ask Yale, when you look at those 1,800 pages of discovery now, let‘s assume—and it‘s a huge assumption—I‘m just making it—that there are many more inconsistencies. Is there a point where the D.A. will say, you know what, I am dropping the case. Can you see that happening with this D.A. and everything else going on around this case?
GALANTER: Not a shot in a million, Lisa. I think Mike Nifong has dug himself such a deep hole that he will never voluntarily dismiss these charges. Now at some point the defense may make a motion to dismiss based on the lack of credibility on the complaining witness and the lack of corroborating evidence, and the judge may or may not grant that as we get much further down the line, but at this point I don‘t see Mike Nifong ever voluntarily dismissing this case...
DANIELS: Does anybody on the panel disagree with that? Just shout.
FILAN: No, way, he‘s not dismissing it.
FILAN: I agree.
BURRIS: I can‘t see that happening because if he really wanted to he would have done it by now, which means he does have some evidence that he feels good about and it can‘t be just based upon a lack of credibility or based upon what the defense has said. So, I just don‘t see him doing that. If he was going to do it, he would have done it now and he probably would not have filed a third charge against that - a charge against that third person.
DANIELS: John, let me go right back to you because what about no toxicology? Is that in and of itself an inconsistency, because we thought the alleged victim was drunk at the beginning? What‘s the misstep here? How do you...
BURRIS: There is certainly a curiosity to me on that because that certainly was there, but the question is what did the medical people do at the time she came in? I mean she does not give a toxicology. That‘s something that the people who are making the assessment is supposed to do, so you would have thought—I would have thought in a case like this that they would have at least taken the exam, but at the same time they might have screwed it up and may not have done it, so it‘s very hurtful to both the prosecution and the defense by not having it done.
GALANTER: ... the real issue is why did Mike Nifong indicate to
everybody in the media that there probably was toxicology and she probably
was on some kind of date rape drug knowing full well that he had a medical
report that checked the box no toxicology, and today he confirmed it in
open court. Mike Nifong should have never misled the public, and never
made the public statements he made in the media
DANIELS: That‘s a really interesting question actually, Yale. And Susan, I‘m just curious because you are down there, Nifong used to talk all the time. He was a chatterbox. This man has gone silent. Did you talk to him...
DANIELS: Did you learn anything?
FILAN: Well, I think that he is much more wary of the media now, and I think he is much more aware that now an imposed indictment that there are ethical constraints on what he can say, because he can‘t make any judicial statements that would sway a potential, the near panel or potential jurors. So I think this way he feels is changed because a lot of those statements were pre-indictment, now we are post indictment. But to see him court, Lisa, you see a strong, confident authoritative, confident district attorney, and on the other side you see polished, articulate, polite respectful defense attorneys. I was actually expecting this to be like the Hatfields and the McCoys...
FILAN: ... but it was anything but. Whatever lack of stability there was, whatever little barbs or undertones were done between gentlemen and amongst men and the court picked up on that, so we are looking at advocacy on both sides that I imagine is going to be superb based on what I saw today in court.
DANIELS: John, Yale, and Mark, this question is for you, and again just shout out, but you know in various magazines, including “Newsweek,” Nifong said I don‘t feel like I am getting a fair shot in the press. I feel like they‘re misconstruing the case. What points do they want us to bring out that we are not?
GALANTER: Lisa, the biggest problem...
GALANTER: ... that Mr. Nifong has is that he made a number of promises and representations in his 50 to 70 interviews that he gave with the media that have turned out not to be true. I mean on this show he gave a demonstration of the complaining witness being choked. She gets to the hospital and she tells the nurse and the medical personnel that she wasn‘t choked. She wasn‘t kicked.
So that‘s really the problem. Why did he indicate that there would be Rohypnol toxicology? Why did he give the choking demonstration? Why did he say that he has got other corroborating evidence? Why did he put in court documents that DNA would either inculpate or exculpate these players and there was no DNA?
DANIELS: Those are...
DANIELS: ... really good questions? Susan, John, Yale, Mark, thanks so much, great panel here.
GALANTER: Thanks, Lisa.
FILAN: Thank you.
DANIELS: Coming up, a break in the worldwide manhunt for the man who allegedly killed his wife and shot the judge hearing his divorce. Darren Mack reportedly hiding out in Mexico. He apparently wanted to surrender to police, but guess what, he never showed up. The hunt continues and we‘ll have the details.
And a fatal shootout at a Florida prison, but this time hey it wasn‘t the prisoners who were behind the gunfire. Federal agents actually came to arrest six prison guards for a sex scandal.
Plus, another teacher arrested for having sex with his student. She was 18, enough to consent to sex, so why is her teacher under arrest? We‘ll have the details all coming your way.
DANIELS: And we‘re back with significant developments in the search for the man who allegedly murdered his wife, then shot an embatted (ph) judge presiding over his divorce. He has been on the run for 10 days now, but one day after being put on the FBI most wanted list, the manhunt came close to being over this morning.
(BEGIN VIDEO CLIP)
MICHAEL POEHLAMN, RENO, NV POLICE CHIEF: Darren Roy Mack wanted in the murder of his estranged wife Charla and for the sniper shooting of Reno Family Court Judge Charles Weller on June 12 today failed to turn himself in to a U.S. consulate in Mexico at Puerto Vallarta at 8:30 this morning. Earlier this week, Mack contacted District Attorney Dick Gammick by telephone and expressed a desire to surrender.
DICK GAMMICK, WASHOE COUNTY, NV DISTRICT ATTORNEY: He called me Monday, and as far as we are able to determine, he was still there as of yesterday. He would not tell me where he was at. I picked up that information through conversations on places we were supposed to meet. If he does call me back again we‘re going to have a little discussion about his credibility and just where we go from there, and I‘ve got to have a heart to heart with him to see where we‘re going to go.
(END VIDEO CLIP)
DANIELS: Authorities say Mack is considered armed and dangerous. And joining me now right here—actually in NBC‘s Reno affiliate KRNV is Victoria Campbell and right here is former FBI special agent in charge of New York Special Operation Division, Joe Cantamessa. And Joe and Victoria, thanks so much for joining me.
Joe, why say you‘re going to turn yourself in and then not appear? Is it a change in mind or is it more of a tactic?
JOE CANTAMESSA, FORMER FBI SPECIAL AGENT: What a great question. We don‘t know if he was trying to buy time, check and see how close the authorities may have been to identifying where he actually was or if he really had intentions of turning himself in.
DANIELS: With all of your experience, which one do you think it is?
CANTAMESSA: I think he was probably buying time, although if he knew we knew he was in Mexico, he‘s probably going to try to buy a little time, get a little bit of leeway built in.
DANIELS: Victoria, what are we hearing about his being spotted in multiple places in the West Coast of Mexico?
VICTORIA CAMPBELL, KRNV-TV: Well we know that the murders took place last Monday, June 12. By Thursday, June 15, he was spotted in Cabo San Lucas, where we know he had vacationed before. They said he was seen lounging by a swimming pool apparently alone at a resort in Cabo San Lucas. By the 17th, last Saturday, he was spotted in La Paz and then earlier this week he had apparently jumped over the Gulf of California either by flying or by ferry, perhaps, and was—they say there is credible evidence that he was spotted in Mazatlan or Puerto Vallarta...
CAMPBELL: ... so in both of those areas he was spotted earlier this week.
DANIELS: I want to follow up with Joe because why contact the D.A. himself? Why not an attorney? Why not the family? It‘s almost getting to be a personal relationship that he‘s making with the D.A.
CANTAMESSA: Well, he may be trying to, you know, buy a little bit of good faith and goodwill and if he does in fact intend to turn himself in, I think one thing that‘s notable is his movement. It‘s certainly indicative of somebody who is wanting not to be found until he‘s ready.
DANIELS: Well you said that Mack might be trying to buy some time, but what about the D.A.? Obviously they‘ve had many conversations, the latest being we heard on Wednesday. What is the D.A. and law enforcement trying to do to tie the noose here?
CANTAMESSA: Well, given the fact that he is out of the country, dealing with the FBI legal attache who is actually in Mexico City, trying to coordinate local law enforcement and other technology efforts where he may be, now there‘s quite a few challenges. It‘s not an easy place to operate in that part of Mexico.
DANIELS: Victoria, we heard that Mack sent his love to his mother and his brother, but not necessarily his family. What do we know?
CAMPBELL: Well, that‘s pretty much the extent of his family now. His mother and brother live here in Reno. His father killed in an airline crash about 20 years ago. He apparently did not mention his daughter, 8-year-old Erika Mack, his daughter with Charla, the woman he is accused of killing and I might also point out that Darren Mack and our district attorney, Richard Gammick, have been friends for 15 to 20 years. They were pretty good friends.
They were pretty good acquaintances, and in speaking with Mr. Gammick after the press conference, he indicated that he—that Mack had told him that he, Mack, felt that Gammick was the only person he could trust in Reno, and I think that‘s what prompted his comment, Mr. Gammick‘s comment earlier, that we‘re going to need to be talking about his credibility now, because they have known each other for quite some time. There was an element of trust there when Mr. Mack apparently called him on Monday.
DANIELS: Well, you said it‘s the extent of his family, but the children.
I mean his kids he didn‘t really mention them.
CAMPBELL: He did not mention his children. He had one child by Charla Mack, two other older children by his first wife, who are staying with her and with other family, so no, he only mentioned his mother, his brother, and apparently ferried them the message that he was well, and that he wanted the D.A. to forward his greetings to his mother and his brother and did not mention his child. Of course we know too that according to a friend of his, his 8-year-old daughter was in the house when he allegedly killed her mother, so deduce what you will.
DANIELS: So give me a criminal profiler‘s analysis of this. He doesn‘t mention the children. He‘s making contact personally with the D.A. What‘s his state of mind right now?
CANTAMESSA: He‘s probably a bit frightened, although he‘s clearly lost his focus on a couple of occasions. We really can‘t tell what his state of mind is right now except for the fact that he‘s betwixt and between.
DANIELS: All right. We‘re going to have to see. The manhunt continues, even if they came pretty close this time. Victoria Campbell and Joe Cantamessa, thanks both of you for coming on. Appreciate it.
CAMPBELL: You‘re welcome.
DANIELS: And coming up, we‘ve got some new information about that fatal shootout at a Florida prison yesterday. You won‘t believe what was going on inside. We‘re talking conspiracy, sex, drugs, and this time, it wasn‘t the prisoners who were up to no good.
And why is this 29-year-old being prosecuted for dating someone who was 18? She‘s well above the age of consent in Connecticut, so why should it matter that he was her teacher?
And of course our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing sex offenders before they strike again. Our search today, West Virginia. Police looking for this guy, Thomas Gene Thompson, 56 years old, five-foot-nine, weighs 260 pounds, convicted of sexual assault of a child and hasn‘t registered his address with the state. If you‘ve got any info on his whereabouts, that‘s the number to call, and we‘ll be right back.
DANIELS: New details about the alleged sex for contraband scandal behind Wednesday‘s fatal shooting of a federal agent by a prison guard at a Tallahassee, Florida federal prison. Justice Department Special Agent William “Buddy” Sentner was killed and a lieutenant with the Federal Bureau of Prisons wounded when a joint FBI justice team moved in to arrest six guards charged with trading sex with female inmates for money, alcohol, and drugs. Police say one of the guards, Ralph Hill, brought a personal weapon with him to prison and then shot at the agents as they moved in to make the arrest.
Hill too was killed; the other five suspects have been booked and pled not guilty. And while Hill‘s attorney, Tim Jansen, told reporters that Hill‘s behavior was totally out of character and that he was cooperating with the investigation, the indictment alleges that over a two-year period Hill took part in a conspiracy with the other guards, had sex with four female inmates, monitored two of those inmates‘ calls to try to intimidate them and used his debit card to purchase money orders for three inmates.
Florida‘s Radio Network Capital bureau chief Mike Gentine joins me now. Also, Tim Jansen is the attorney who represented Guard Ralph Hill and thank you both for joining me today.
UNIDENTIFIED MALE: Thanks, Lisa.
DANIELS: So, Mike, let‘s continue the conversation that we were having yesterday. Yesterday we were talking about the fact that two agents were given the job to arrest six guards. Is that true? Because I‘m seeing conflicting evidence about that.
MIKE GENTINE, FLORIDA‘S RADIO NETWORK CAPITAL: That‘s all the indication we‘ve gotten from the FBI spokesperson at that scene and said there were two officials, one from the Bureau of Prisons, one from the Inspector General‘s Office and that‘s who they sent in.
DANIELS: Tim, you say that your client was cooperating in the investigation. What do you think happened here?
TIM JANSEN, ATTORNEY REPRESENTING GUARD IN SHOOTING: Well, the details have changed and every day you get something new and then sometimes that detail is not correct. My understanding was my client was on duty, he was just getting off duty around that time, and there‘s conflicting reports what happened as he left the institution.
DANIELS: So let‘s go back to Mike. Here we have this—apparently this sex for contraband scam going on. What details do we know? And how did it last two years?
GENTINE: Actually, it lasted three years. It lasted two before it caught the attention of the inspector general and the Bureau of Prisons. Basically, this—the guards had control through a bid process and through moving later on after those bids came out over what areas they‘d be assigned to for each quarter, so they could kind of engineer which inmates they‘d be around most often, and with that, with the ability to intercept phone calls and personal mail and things like that, they had control over the communication those inmates received.
If they didn‘t cooperate, they were threatened that they‘d be moved to another facility away from their families. So the guards really had control over these inmates‘ lives and used that control to get what they wanted from them, whether it was sex or money.
DANIELS: So how was the scheme discovered finally?
GENTINE: As far as I know, as mentioned in the indictment, I‘m assuming there were some tips from some of the inmates that probably weren‘t pleased with what was going on to say the least. There was also mention of an undercover agent working in that, so I‘m sure that‘s how they got some of the details for the indictments.
DANIELS: Tim, did your client know that he was going to be arrested that day?
JANSEN: No, we had no knowledge. We were waiting. We had given a saliva sample in January. He was at duty working. I had no information about the indictment. I wasn‘t told about the indictment until that morning. I was told to go to federal court and that‘s when I was told of the shooting and the death of my client.
DANIELS: Are you representing any of the other guards?
JANSEN: Well, we just had a hearing. I was going to represent another, Mr. Dixon. We had a hearing today, and when I went to court to represent him at the hearing, the government indicated that I—that three prior persons I represented may be—become witnesses, so they basically conflicted me off the case today.
DANIELS: OK. Mike, you know what I still find completely confusing, is yes, you can‘t bring guns into a federal building. The guards are not supposed to have guns, but why do the arrest there? Because you know guards are not—their searches are not as intense as they are for the inmates, for guests. There‘s a strong possibility that someone could smuggle in a gun.
GENTINE: Absolutely. And actually as mentioned in the indictment,
the policy, I don‘t know if it‘s a Bureau of Prisons wide policy or just a
policy of the warden there at the FCI or the FDC rather, is that the guards
are not subject to search, either on their persons or in containers they
bring in, so obviously if a guard wanted to smuggle in a weapon or
contraband as indicated in this indictment, it‘s certainly feasible. So I
you know, again, if I were in law enforcement, if I were the person sending those two out or probably more than two, I would operate under the assumption that there‘s a possibility that a weapon could be there.
DANIELS: It just seems like so many mistakes were made here that law enforcement should get an F in this case. Is that what you would say, Mike?
GENTINE: Well, I don‘t know that I‘m in a position to give them an overall grade, but there‘s certainly a lot of questions, specifically the number of officers they sent to effect this arrest, and it would certainly prompt, I would hope, a review of policy.
DANIELS: Yes, let‘s hope. That‘s a mild understatement. Mike Gentine and Tim Jansen, thanks so much for giving us what you know. Appreciate that.
GENTINE: Thank you.
DANIELS: And coming up, a teacher charged with having sex with a student. His notes talk about sneaking away from the school dance to meet in a janitor‘s closet for sex. But she‘s 18 and they both say it was consensual sex, so should it really matter?
And one woman had no idea that when she handed over her keys to a car valet, she would one day find him in her home hiding yep, under the bed.
And coming up your e-mails. Send them to firstname.lastname@example.org. Remember to include your name and where you‘re writing from. And I‘ll answer at the end of the show.
DANIELS: Coming up, a teacher under arrest for having sex with his student, but it‘s not exactly what you‘d think. The student is 18 years old and she says it was consensual. We‘ll talk to the teacher‘s lawyer. That‘s next.
DANIELS: Last week we brought you the story of a female teacher, 25-year-old Amy McElhenney, charged with having an inappropriate relationship with her 18-year-old student. Well, it‘s happened again, only this time, it‘s 29-year-old Connecticut teacher Zachary Loavenbruck and he‘s charged with sexual assault for having a relationship with a female student. She‘s 18 years old, which means she‘s above the legal age of consent, so why is Loavenbruck charged with a crime?
Well in Connecticut it‘s illegal for any school employee to have sex with a student, regardless of his or her age. Like other teacher-student sex cases that we‘ve covered before, we‘re getting a glimpse into what their relationship was like.
According to a local Connecticut paper—quote—“In a voice mail message left on the day of a school dance in March Loavenbruck said he and the girl could have full reign of every janitor‘s closet in the building if they could sneak away during the dance without anybody seeing. I think if ever there was a time for you and I in the janitor‘s closet, tonight‘s the night.”
Joining me now is Loavenbruck‘s attorney, Reese Norris. Mr. Norris, thanks so much for joining us today.
M.H. REESE NORRIS, CLIENT CHARGED WITH HAVING SEX WITH STUDENT:
You‘re quite welcome.
DANIELS: So, how are you planning to win this case? It‘s pretty clear from the law on the books that a teacher cannot have sex with a student.
NORRIS: I‘m going to attack the constitutionality of the law itself in Connecticut. Because in 2003, the United States Supreme Court in a case called Lawrence versus Texas established certain privacy interests in personal sexual relationships with consenting adults.
DANIELS: Well if you attack the constitutionality of the whole law, chances are you may not win it. Is there anything in terms of facts that we‘re not seeing here?
NORRIS: Well, right now our approach is to attack the facts that are in the warrant. I certainly can‘t comment on the facts, whether they‘re accurate or not, but the allegations intend to criminalize what is alleged to be consensual conduct between two adults.
DANIELS: Well, according to the warrant, tell me if you can answer this, your client admitted to police that he did have a sexual relationship. He said that he‘s pleading not guilty now, so what am I missing? Is the warrant not right or is the plea not right or are you just not going to answer?
NORRIS: Well I‘m not going to comment on anything my client may or may not have said to the police, but he‘s entered a plea of not guilty, because quite frankly, it‘s my opinion that the statute is unconstitutional and it violates both federal and state privacy rights.
DANIELS: Let me read to you one of the e-mails allegedly written by your client.
Quote—“I am deeply and purely and truly in love with you. I love you. I love you. I love you. Each passing day solidifies that in my mind and in my heart. May the sun pour rays of glistening golden upon your back and may birds in formation litter the skies above, none of which shall be pooping on you, and may the puffy clouds beneath your airborne vessel remind you of the bedspread waiting for you when you come home.”
I think a lot of people are going to find this e-mail bizarre. Is there an issue with your client‘s mental state?
NORRIS: Well, I certainly am not aware of any issues of my client‘s mental state, but certainly adults in consenting relationships say a lot of things. I‘m not going to comment on the accuracy of that reported e-mail, but I am focusing on the application of the law against the facts that are alleged against my client.
DANIELS: Are you denying that he wrote that e-mail?
NORRIS: I‘m just not going to admit or deny it. Quite frankly, I haven‘t had a chance to review all the evidence and test its authenticity. The police have chosen to release this and asserted it‘s his e-mail, but at this point, I can‘t either confirm or deny.
DANIELS: You‘re going after the constitutionality of the statute.
Have there been other people charged under it in Connecticut?
NORRIS: There have been other people charged, and it‘s my understanding that other lawyers are raising these issues as well, because the Connecticut Supreme Court has yet to give a definitive ruling on this issue, and I think in my case especially, since the other party involved is alleged to be over the age of 18, I have some rather unique issues to raise.
DANIELS: I understand the student involved has admitted to a sexual relationship, but is not cooperating with the prosecutor‘s office. If the student doesn‘t testify against your client, you think the case is going to go forward?
NORRIS: That will be up to the prosecution. I certainly can‘t speak for them. If she does not want to go forward, that‘s her right and they were the ones that have to respond to whether they will go forward or not.
DANIELS: Reese Norris, thanks so much for coming on the show.
Appreciate hearing your side of it.
NORRIS: Thank you very much.
DANIELS: OK, so even though it seems pretty clear that there was a sexual relationship in this case, is it fair to send a teacher to prison for having sex with a student who‘s legally of age?
Criminal defense attorney David Schwartz and former Connecticut prosecutor Susan Filan both join me. Thank you both. Nice to see you. So I‘ll put aside the question of what is the lure of a janitor‘s closet. I‘ll just put that aside. And I‘ll ask David, do you agree that the charge is a violation of his constitutional rights?
DAVID SCHWARTZ, CRIMINAL DEFENSE ATTORNEY: Absolutely. I think this is a ridiculous law made up by a bunch of legislators that obviously have nothing better to do with their time but to enact ridiculous laws between two consenting adults. Obviously it infringes on their right to privacy as two adults to engage in a sexual activity. So, it‘s ridiculous on that theory and I hope the defense is successful.
DANIELS: David, tell us what you really think.
DANIELS: Let‘s turn to Susan. Susan, if I‘m a parent, I don‘t want it to be so easy for a teacher to have sex with a student and get away with it. I want to make sure that there‘s something in the law or in the school policy that prevents it, that actually punishes it.
FILAN: Well Lisa, it‘s clear, when you send your kids to school to learn, that‘s not what you‘re hoping the teacher is going to teach them, so for your student, your kid to be going to a public school, and be subjected to the advances of a teacher who, granted, has a position of authority over these kids, I mean, it‘s just not parody between an 8-year-old—an 18-year-old—excuse me—and a 28-year-old, so parents need to have some kind of assurance.
Now to call it unconstitutional because you don‘t like it is just plain silly. That‘s not the constitutional analysis that would have to be applied if the court is going to review this statute. To say you don‘t like the law because you think it‘s too harsh or you don‘t think it‘s fair, that‘s a different argument, go to your legislator, but this felony is on the books.
This teacher had to have known about it and he continued to engage in this conduct. It‘s not the student‘s fault that she fell for him, it‘s the teacher‘s fault that he tried to seduce a student. What‘s the proper punishment? Well maybe that‘s a different debate, but is it wrong? Yes. Does this statute outlaw it? Yes.
Is he probably guilty based on what you‘ve told me? Yes. Will the prosecution go forward without this victim? Absolutely. You don‘t need her. The victim isn‘t going to drive this case.
DANIELS: All right, David...
SCHWARTZ: Susan—she‘s not a kid though, Susan. She‘s not a kid.
DANIELS: Go ahead.
SCHWARTZ: She is an adult and...
FILAN: The law doesn‘t say she has to be a kid...
SCHWARTZ: ... any prosecutor...
FILAN: The law says 18 years old.
SCHWARTZ: ... worth anything would never go...
FILAN: She‘s 18.
SCHWARTZ: ... waste the county‘s resources by going after a case like this. You would do that, Susan...
FILAN: Every time you don‘t like it you say it‘s too expensive...
SCHWARTZ: ... as a prosecutor? Ridiculous...
FILAN: It‘s not a question of money.
SCHWARTZ: It is a question of money. It‘s a question of resources...
DANIELS: Susan, I want to ask you because as a prosecutor, you have prosecuted I‘m sure similar cases, especially because you‘re in Connecticut. Let me ask you, do you think it‘s unfair some of the sentences that a guy like this could get jail time and then there are other people that seem to get a free pass?
FILAN: Look, that‘s a question that goes to judicial discretion more than prosecutorial discretion, because sentencing is a function of the court and typically these cases are plea bargains, so the prosecutor could in exercising their discretion come off a B felony, come off a C felony. Maybe even make it a misdemeanor if that were all part of the package.
It could be suspended in probation. He‘d probably have to report as a sex offender and not teach again and maybe that‘s where this case belongs. Maybe he doesn‘t belong in jail, but he doesn‘t belong in a school, and he doesn‘t belong around students.
DANIELS: David, shouldn‘t people in positions of authority and power have to be held somewhat accountable?
SCHWARTZ: Absolutely, Lisa, that‘s why we must distinguish between a criminal remedy and an administrative remedy. Clearly this guy should not be teaching anymore. I‘m not arguing for him to remain as a teacher. There needs to be an administrative remedy. You cannot criminalize everything. Let‘s just criminalize employers, employees that have sexual relations. They‘re consenting adults. It‘s the same power issue that Susan is talking about, so let‘s criminalize that also. It‘s ridiculous. Ridiculous.
DANIELS: Do either of you see a difference between the case in Texas, where a woman is the teacher and allegedly having an affair with a student, and a male teacher who is allegedly having an affair with a student? Is there something in the...
DANIELS: ... American perception that distinguishes those two cases, Susan?
SCHWARTZ: I think...
FILAN: There may be a gender bias, but in reality, they should be treated absolutely equal and I think David Schwartz can argue that you know that male student who is young and has relations with an older teacher is lucky and it‘s kind of hot. I am so sick of that palaver. These cases should be treated equally...
DANIELS: ... you got 10 seconds.
SCHWARTZ: Susan, you took the words out of my mouth. There is a difference here, but when you have two consenting adults, I‘ll agree with Susan there is no difference here. It should not be criminalized.
DANIELS: All right. Let‘s leave it there. David Schwartz...
SCHWARTZ: Thank you.
DANIELS: ... Susan Filan, thank you. A very lively discussion there.
Coming up, a woman handed over her car keys to a valet only to find he copied her house key, snuck into her home, and then he hid under her bed with condoms and latex gloves for two days. The frightening details coming up.
And many of you getting pretty creative with your criticism of Durham D.A. Michael Nifong. I‘ll read your e-mails, some of them, coming up.
And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing sex offenders before they strike again. This week we‘re in West Virginia. Police needing your help to find this guy, William Eugene Yocum, 42 years old, five-foot-eight, 160 pounds.
He was convicted of two counts of first-degree sexual assault and first-degree sexual abuse. He has not registered his address with the state. Take a good look at him. If you know where he is, please call the West Virginia State Police, there‘s the number. We‘ll be right back.
DANIELS: Well it‘s a disturbing story for anyone using valet car services and believe me this one is going to make you think twice about who you leave your car keys with. On Wednesday, a parking valet was sentenced for stalking a woman after he made a copy of her house key, entered her home, and then hid under her bed.
Jane Watrel from our Washington station, WRC, has the story.
JANE WATREL, WRC REPORTER (voice-over): The disturbing black and white tape shows the convicted stalker carefully hiding his video camera on a desk in the victim‘s bedroom. Suddenly he hears the woman and her boyfriend come in the apartment and dives under her bed. There Carlo Castellanos-Feria remained for two days until he was discovered by the victim‘s boyfriend.
KEN WAINSTEIN, U.S. ATTORNEY: In a lot of ways I think this case is sort of the stuff of a nerving nightmare. You know you go through day-to-day and you‘re nice to somebody and then you get repaid by having that person end up you know under your bed trying to record your most private moments.
WATREL: The nightmare started at Holy Cross Hospital in Silver Spring, Maryland, where the victim, an employee, met her stalker, who was working as a parking valet. In court the victim told the judge she rebuffed the valet‘s overtures and has had trouble sleeping since he was discovered under her bed.
KERI BARTA, PROSECUTOR: Her life is dramatically changed. She‘s fearful when she hears strange noises and she doesn‘t know where they‘re coming from. Her husband, who was her boyfriend at the time and who was there at the time of the incident now has to be very careful and not approach her and catch her by surprise because it just startles her.
WATREL: Moments before he was sentenced, Castellanos-Feria apologized, saying—quote—“I fell madly in love and that blinded my judgment. I beg your forgiveness. I need help, your honor.
Court documents show the Maryland man was caught with a change of clothes, condoms, a power cord and latex gloves under the victim‘s bed. A parking valet with an unnerving obsession.
UNIDENTIFIED MALE: He got access to her keys, because he was working the parking garage and she would leave her keys there when she would park the car. He then took that opportunity to get those keys copied and then use them to get inside her apartment.
WATREL (on camera): Judge Herbert Dixon sentenced the stalker to three years in prison and told him to reflect on the extreme psychological harm he caused the victim. She and her husband have since moved out of the area.
Jane Watrel, NBC News, Washington.
DANIELS: OK. Coming up, many of you outraged on both sides about the high school that cut off a valedictorian‘s speech because she made too many references to God and Jesus. We‘ll have your e-mails next.
DANIELS: All right. Time now for “Your Rebuttal”. Many of you writing in about Brittany McComb, that‘s the high school valedictorian whose microphone was shut off by the school board because of the numerous religious references in her speech.
K. Latner from Georgia writes this, “Why is it that you can use any bad language anywhere, but if you bring up God you‘re not allowed to speak. Where is the freedom of speech?”
Kathy Carlson writing in, “I think she should have been able to talk about God and how she believed he helped her get where she was, her love for him, et cetera. Talking about God is one thing. Talking about Jesus is kind of different. People have different gods, but when you specify one exclusively you are excluding every one else‘s God, which really isn‘t fair.”
Mary G. from Illinois, “I went to a graduation in Kentucky last year and was very upset when the school let a Baptist youth minister say a Baptist prayer. I‘m a Catholic and my kids and grandkids get religion in a Catholic school. I do not think God should be in a public school, as everyone else does not believe in the same thing. I‘m a fairly religious person, but we all honor a different higher being.”
Lynn from Kansas, “It seems to me that a valedictorian who had principles as high as her grades would have declined to speak rather than submit to censorship that she then defied.”
Many of you writing in about the Duke lacrosse rape case. Lara Lee from Boulder, Colorado, I think you have a very good point and it‘s this. “I was struck by the fact that you refer to the alleged victim in the case as the stripper while you refer to the alleged perpetrators as men or young men. As an attorney you understand the importance of language. The victim should be presumed as innocent as the perpetrators. It is unfair to categorize her as the stripper. It was prejudicial. If you call her the stripper, then the alleged perpetrators should be called the lacrosse players or more appropriately how about women and men?” I think that‘s a very good point.
Nick from Saint Charles, Illinois, “Maybe if Nifong claps his hands really hard, it will bring his case back to life, just like Tinkerbell.”
Anne Niemann, “Is it possible that Mike Nifong likens himself to Robert Langdon from ‘The Da Vinci Code‘? At this point, we can only guess that somewhere in one of the photos from the infamous Duke lacrosse party there must be a secret clue hidden in the corner of the picture that can only be decoded by the prosecutor himself.”
Good e-mails there. Send your e-mails to the abramsreport—one word
@msnbc.com. Of course, we‘ll go through them and read them at the end of the show.
That does it for us. “HARDBALL” with Chris Matthews is next.
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