Guests: Peter Lattman, Brian Wice, Paul Pfingst, Andy Hill, Don Clark, Jake Goldenflame, Michelle Suskauer, Vito Colucci, Larry Kaye, Liz Daulton, David Rabin, Don Bosch, Victoria Campbell
SUSAN FILAN, GUEST HOST: Coming up, Ken Lay, the man convicted of one of the biggest corporate fraud scandals ever, dies just months before he was set to be sentenced, so now the question, who gets his money now?
The program about justice starts now.
Hi everyone. I‘m Susan Filan. Enron shocked the financial world when it collapsed in 2001, but the latest news in the case is shocking the legal world. Just weeks after he was convicted of fraud, conspiracy and other charges and months before he was set to be sentenced for what could have been decades in prison, Enron founder and former CEO Ken Lay has died. We got word this morning that Lay apparently suffered a heart attack and died of natural causes while on vacation with his wife at their home near Aspen.
Joining me now to talk about what this means for Enron‘s legal legacy and of course Lay‘s co-defendant Jeff Skilling is law reporter for the “Wall Street Journal Law Blog” Peter Lattman who covered Lay‘s trial. Hi Peter.
PETER LATTMAN, “WALL STREET JOURNAL LAW BLOG”: Hi, Susan.
FILAN: And criminal defense attorney Brian Wice, he also watched this trial from inside the courtroom and former San Diego district attorney Paul Pfingst. Thanks for joining us.
Hey, Peter, what‘s the deal? I mean this is really, really unusual.
LATTMAN: Shocking. This is one of the great Shakespearean or Greek tragedies of all time and this is actually the ultimate tragedy now. Very sad news for the Lay family and a shocking development in what‘s been a crazy case.
FILAN: How do you think the victims are going to react to this news?
LATTMAN: Well, for the family‘s sake, hopefully they will have some sympathy for this tragedy, but we keep a blog on our Web site and by some of the comments we‘ve received today, there is still some bitterness at Ken Lay and what happened at Enron.
FILAN: I mean this really wasn‘t a death penalty case ever, but this is the ultimate price to pay. Brian, what happens to his conviction now?
BRIAN WICE, CRIMINAL DEFENSE ATTORNEY: Susan, the short answer is that those convictions are going to be set aside. Why? Because all the way back to the middle ages, common law said that if you were convicted and died before you had a chance to test the fairness of your trial with a direct appeal, you shouldn‘t bring to the grave the sanctions of a criminal conviction and Judge Sim Lake will be directed to set aside and vacate each of those jury verdicts permanently, something that I think will anger the victims of this crime who probably don‘t think they were ever going to get closure, but certainly one enclosure when Ken Lay walked into the front doors of the federal penitentiary.
FILAN: But Brian, if Ken Lay appeals and his appeal is upheld, in other words, that conviction isn‘t tossed, couldn‘t one argue that Ken Lay‘s shouldn‘t be tossed either?
WICE: Well except they have different issues and really, this is something—and again, goes all the way back to the dawn of time, that a conviction with such a serious sanction for anybody to have to shoulder, that they didn‘t have to suffer unless and until an appellate court had said the verdict was error free, but certainly as we‘ve talked about, the larger question is who gets the money.
FILAN: Paul, you know, you were a former prosecutor for many, many years. One of the things that prosecutors do in trying to bring justice to victims is restitution. It‘s something that the courts certainly take into consideration when issuing a sentence. What‘s going to happen in terms of the government‘s ability to collect that 43.5 million it was looking for from this defendant?
PAUL PFINGST, FORMER SAN DIEGO DISTRICT ATTORNEY: Well, because he died before he was formally convicted, someone is not convicted until judgment is entered and judgment was never entered, so technically he goes to his grave without having been convicted. The government will have to file different papers in a different matter, but all roads are going to lead to the same result.
The money is going to be seized. The asset forfeiture laws will not be avoided and what‘s going to happen is Ken Lay‘s money, at least a large chunk of that money, is going to be turned over to the government for restitution for the victims. Not providing a whole bunch of restitution, considering the magnitude of the loss, but it is something that the victims will get.
FILAN: And Peter, what do you think the judge is going to do now with respect to Ken Lay? I know you don‘t have a crystal ball and you can‘t read tealeaves, but this really throws a monkey wrench into the proceedings, doesn‘t it?
LATTMAN: It sure does, as Brian said under the federal law, this conviction will now be expunged from the record, because he won‘t have a chance to appeal. Jeff Skilling is still sentenced—scheduled to be sentenced in October and that will still probably proceed as planned. You can bet that his attorneys will probably try and delay his sentencing, given this turn of events.
FILAN: And Peter, you know, the ultimate cynic—I mean and you know please forgive me to his family, but you know the ultimate cynic heard this news this morning and thought really, a heart attack, natural causes. You may have had an ability to watch his demeanor, observe, maybe you had some insight into his state of mind. Do you really think he was the type of person that would have taken any alternative means to avoid what really would have been a life sentence for him?
LATTMAN: Well I‘m not going to go there, but what I will say is that that was the single most surprising thing about the trial, is that everyone thought that when Ken Lay took the stand, he would charm those jurors. He was an enfunkular (ph) presence, real diplomat, a whole—a politician who liked to yuck it up and when he took the stand, he was angry, embittered. He looked a bit haggard and that‘s why people are saying that his health was maybe at issue at the trial, but he was a different Ken Lay than people were used to.
FILAN: Brian, Peter is not going to go there, he‘s too much of a gentleman, but I bet you will. Can you comment on that for me?
WICE: Susan, let me tell you I don‘t think Ken Lay was on the grassy knoll in Dallas in 1963, but I think Ken Lay is one of the self-professed smartest guys in the room, understood that if he suffered from a natural death prior to the direct appeal being concluded, that this is exactly what would happen. I think, Susan, it was important and I think Peter will backstop me on this, that Ken Lay was concerned about his legacy.
He not only wanted to be acquitted, I think he wanted vindication and I think six or seven moves down the chess board and Ken Lay was smart enough to see that far, he knew that if God forbid, he left us prior to the sentence and the direct appeal being concluded, that the government would have to fight like mad dogs to ultimately collect on the seizure and that his legacy would be someone who went to his grave as an innocent man.
FILAN: So you‘re basically saying if you know heaven forbid, this was a suicide and game result, the exact same, is that what you‘re saying?
WICE: Susan, you know, I‘m not a doctor and I think there are some folks that watch this show that say I‘m probably not a lawyer either, but my understanding is that there are a number of drugs that can induce a heart attack or amass the symptoms. To me the larger question is whether the Pitkin County coroner in Aspen will order an autopsy, because I think there are a lot of people that watch this show out there in America that want to know what brought Ken Lay to death‘s door.
FILAN: And that will be the last word. Peter Lattman, Brian Wice, Paul Pfingst, great panel, thanks so much.
Now to a manhunt in Arizona for a suspected serial rapist. According to police, the so-called baseline rapist, named for a street where the attacks began, is only getting more violent. The assailant has been wanted for almost a year and he‘s believed to be linked to 19 attacks. The latest ending in the murder of a mother of two on Thursday. The abduction was caught on this surveillance tape.
At first the suspect‘s crimes were sexual assaults and robbery, but they have been escalating in violence with five homicides in the last few months. Police are now hoping for that crucial break in this case before he strikes again.
Joining me now is Phoenix Police Department Sergeant Andy Hill and former FBI special agent Don Clark. Sergeant Hill, fill us in. I mean this is really, really scary now. What‘s going on? What are you doing to try to catch this guy and how close are you?
SGT. ANDY HILL, PHOENIX POLICE DEPT.: Well, Susan, you know we‘re doing a lot of things. We‘ve been very active the last few months with a command center with dozens of detectives and all sorts of operations that we‘ve been conducting. One of the biggest things is educating the public about suspicious activity and when to call police.
This suspect, who has been operating since last August, has a very strong M.O. of trying to contact the victims briefly and having some kind of conversation with them before striking. So we are really trying to educate our local community here about calling 911 for suspicious activity and letting the police check it out.
FILAN: How do you know these attacks are connected, Sergeant?
HILL: Of the 19 attacks we have, most of which are M.O. connected, five of the recent homicides, we do have forensically connected and we are certain of those crimes being connected...
HILL: I‘m sorry.
FILAN: Is this video surveillance that you‘ve got the best link you have to your man at this point?
HILL: No it isn‘t the best link. It‘s the best thing we can provide to the public to try and generate some calls. What we need is public help and information, somebody that saw or did something, had some contact with this person and hasn‘t yet called us with that strategic piece of information.
FILAN: Don Clark, former special agent, FBI, what kind of a guy are we looking for? What kind of an animal is this?
DON CLARK, FORMER FBI SPECIAL AGENT: Well this is a very difficult one, because this person doesn‘t fit the mode of a particular serial killer, who has a pattern of activities that we can all look at, but we‘ve got to keep in mind that there is a pattern that‘s going on here. We just have to figure out or the law enforcement community has to figure out what that pattern is when he murders, what it is when he sexually assaults, and what it is when he robs somebody.
And as I just heard the chief say there or the police officer say, is that look, we‘re going to try to keep this out at the public to see if they can give us some information, but in the meantime, they too have got to keep looking at every detail that they get from each one of these crime scenes and see if they can really identify a closer pattern than we have right now.
FILAN: Sergeant, what makes this guy so good at eluding police?
HILL: Well, you know, a lot of times it‘s luck. Many times it is that they do know and stay within their own parameters. I appreciate Mr. Clark trying to promote me, I‘m just a sergeant. But what we have been doing is looking at every case very closely. We have a very strong, tremendous police department here with a homicide unit with a very good reputation and we also work closely with very—many other agencies, including the FBI in the past.
We are trying and will continue to look at every single piece of evidence that we have, but what we really want to keep doing is informing the public. As one of our investigators said the other day, we had a homicide the other day, we do not want to have another one tomorrow.
FILAN: I understand that you were going to have a press conference, you were going to reach out to this killer, but he reached out to you first, is that right?
HILL: No, I have no information at all that that‘s correct.
FILAN: OK. Let me ask you this, Sergeant Hill. This is a guy that strikes me as very, very different, because he‘s not just targeting women walking alone or women alone late at night. Sometimes he gets couples. He gets mixed race people. He doesn‘t have any one person. He doesn‘t even always sexually assault them. Sometimes he just attacks them and kills them. Is that correct?
HILL: You know that is correct. But again there are many other factors to look at, as Mr. Clark kind of began to allude to, that indicate certain patterns, some of which we cannot discuss or release to the public at this time but he has struck when the woman has been alone or with another woman, a mother and child, two women and a man, and as a matter of fact on March 14, he did kill a man and a woman together.
FILAN: I also understand he strikes swiftly. It‘s within seconds and they‘re abducted and gone. Anything you want to tell the public one last time to keep your citizens safe?
HILL: Absolutely. You know one of the key things is for people to recognize that police officers like to respond to suspicious activity calls, to be proactive rather than reactive. If anybody has seen anybody suspicious hanging around, don‘t have contact with them, go away from that scene, go back into the restaurant, honk your horn, drive your car away, call 911, and let us make that contact and determine whether or not it‘s valid.
FILAN: Thanks, Sergeant. Thanks, Don Clark. Folks, stay safe and help the police out to catch this guy.
Coming up, a convicted sex offender says he‘s no longer a danger to children, because he had himself castrated, but prosecutors want him to stay behind bars anyway, even though he‘s already served his entire sentence.
And a year after honeymooner George Smith disappeared from a cruise, there‘s still no word on what really happened to him, even though federal prosecutors say they‘re still on the case.
Plus, you probably received e-mails asking you to help out a Nigerian official by sending him a check. Well now the attorneys for the preacher‘s wife who police say confessed to killing her husband, says she was a victim too.
Your e-mails send them to firstname.lastname@example.org. Remember to include your name and where you‘re writing from. I respond at the end of the show.
FILAN: He‘s a sexually violent predator, convicted three times for molesting children and was even surgically castrated, and now Kevin Reilly wants his freedom. He says he‘s done his time in and out of prisons and mental hospitals for over 20 years. He says he‘s no longer a threat to society, especially after winning a court order for his own castration, which he paid for himself, but according to his attorney, Reilly felt like he had no other option when it came to the castration.
Quote—“He understood he was a danger to children and he wanted to control his urges. He felt that this was the only way to stop his cravings and immoral conduct.”
But is that enough to get him released from the mental hospital he‘s been in for the past six years? Joining me now, former San Diego district attorney Paul Pfingst, criminal defense attorney Michelle Suskauer, and Jake Goldenflame, convicted sex offender and author of “Overcoming Sexual Terrorism”.
Jake, let me start with you. Should this guy get out? I mean he‘s castrated now.
FILAN: Is he a safe guy? Would you want him around kids?
JAKE GOLDENFLAME, RECOVERING SEX OFFENDER: No. I spoke with officials of the program before coming to the studio, technically he has not even been in the program yet. He‘s been in the preliminary phase. He has to be committed by the court and then he goes through the program. So he‘s not trying to get out of the program, he‘s trying to avoid being committed into the program.
FILAN: Well let‘s say he gets into the program and he graduates and he‘s...
FILAN: ... castrated, what then? What would you say then?
GOLDENFLAME: Castration itself is not the answer. As has been said more prosaically, the problem that we have is not between our legs, it‘s between our ears and that‘s why we do a cognitive behavioral psychotherapy program, that‘s the full name for it.
FILAN: Michelle Suskauer, the guy has done his time in prison, he‘s been in a mental hospital, he is castrated. Would you let him out?
MICHELLE SUSKAUER, CRIMINAL DEFENSE ATTORNEY: Well he‘s already served his time. We don‘t have double jeopardy in this country and what they want to do is basically hold him indefinitely. He has been locked up for I believe six years in this mental health facility, and he‘s done. I mean he‘s—he actually went the extra step, which he did not have to do, to physically alter himself, because he wants to change and he wants to get better and he certainly did change. And so yes, I mean he‘s done his time, and this is sort of a test case, down here in Florida, we have the Jimmy Ryce Act, where they want to hold people indefinitely. There has to be a whole trial on that too and they should let him out.
FILAN: Michelle, you‘re a mom...
SUSKAUER: He‘s done his time.
FILAN: You‘re a mom. Do you want him at the playground with your kids?
SUSKAUER: Yes. You know, Susan, it‘s sort of like a Michael Dukakis question. You know...
FILAN: I‘m thinking yes or no, Michelle.
FILAN: I‘m thinking yes or no.
SUSKAUER: No, I don‘t want him at the playground with my kids. I‘m sure you don‘t want him at the playground with your kids.
FILAN: That‘s right and I‘m not saying let him out. I‘m saying keep him in.
SUSKAUER: But what I‘m saying is, is the fact that he has served his time. He was sentenced to a specific period of time.
FILAN: No, I know.
FILAN: Paul, what do you think about this?
SUSKAUER: He served his time.
FILAN: Paul, former D.A., what do you think?
PFINGST: Well, this guy has said I cannot control by urges...
PFINGST: ... therefore what I have done is castrated myself. The issue now is does this castration means that he no longer has urges. And this—and the medical people tell us no, that‘s not what it means. Someone who has had castration can still have urges, so if those urges are still there to molest children, he‘s told everybody that there‘s nothing he can do to control himself, so you have to keep him in.
FILAN: And Paul, it‘s funny, because the district attorney who prosecuted this case or is prosecuting this case still, his name is Tony Rackauckas. This is what he has to say on it. Take a listen.
The greatest problem with sex offenders is mental. Just because they have been castrated doesn‘t change what‘s going on in their minds.
Paul, as a prosecutor, is that what you found? There‘s a great deal of recidivism against sexual predators.
FILAN: Because they‘re castrated isn‘t cured.
PFINGST: The hardest part about most judges in making these decisions and as D.A., I did a ton of these hearings, is has this person been in control? Can he control himself? This man has said I can‘t.
PFINGST: And now, if the castration does not control those urges, as most doctors believe it does not...
PFINGST: ... he has given the judge the answer. You can‘t let me go because I can‘t control my urges, so it makes the decision I think simpler for a judge, not harder for a judge.
FILAN: And Jake, I think here‘s the thing. You know it‘s a real artificial environment to be in prison and say I haven‘t molested anybody.
FILAN: Put him in a nursery when he‘s around children.
FILAN: Put him at an amusement park where...
FILAN: ... there‘s teens in bikinis. What are we dealing with?
GOLDENFLAME: I recently asked that very same question of one of the top mental health professionals in our state here in California, Dr. Tom Tilden (ph). I said Tom, here are these guys locked up all these years, how do you know when it‘s really safe to let them out? You can‘t test it without grave danger to a victim.
And the answer he gave me, which other mental health professionals have seconded it is this, what they‘re looking for in us is a thing called insight. Do you have an honest understanding of who you are and do you have an honest appreciation of the value and the worth of children as human beings, instead of sex objects.
FILAN: But it‘s almost like an addiction. I mean you can truly...
GOLDENFLAME: It is.
FILAN: ... appreciate that...
GOLDENFLAME: It is.
FILAN: ... substance that you‘re abusing is really not good for you.
It‘s hurting yourself.
FILAN: It‘s hurting your family, but can you stop. It‘s a whole different thing.
GOLDENFLAME: Yes you can. There‘s something called relapse prevention and we‘re taught it and that‘s the thing that allows us to stop it. First we have to get to the place where we really don‘t want to offend again and then they teach us ways, little tricks that we can use to overcome the temptation when it arises. For example...
FILAN: Wait a second, let me catch up...
SUSKAUER: Wait a second.
FILAN: So are you saying if this guy passed your test, and he‘s castrated and he‘s served his time, then you may change your opinion and say let him out?
GOLDENFLAME: I would say it is possible for a person to earn the right to get out, yes, but they have to go through the program and demonstrate that they really got the program down before anybody puts them out under very carefully monitored release.
FILAN: Michelle, we‘ve locked him up. We‘ve thrown away the key. I know you‘re dying to let him out. Let‘s hear it.
SUSKAUER: Well you know Susan, what I‘m saying is, you know, Jake is not coming from a point of view where he‘s been physiologically altered and so this guy has and there is, by the way, a difference of opinion. There are doctors at the facility that he‘s at that are saying no it‘s taken away his urges, and so there is not a clear-cut, definitive opinion that this does not work.
So I think that that‘s important. And no, you know, that doesn‘t mean that I want my children or your children or anybody‘s children playing with him, but this is a system that we have here and he‘s served his time. He‘s done the extra step here and he deserves to get out.
FILAN: Paul, I‘m going to give you the last word. I hope you‘re going to find a way to convince our viewers that this guy should stay in.
PFINGST: Violent sexual predators, persistent sexual predators by definition cannot control their sexual behavior. This man has said I can‘t control my behavior, so I was castrated. Medical experts tell us that is not a sure fire means of control. He still has those urges.
Since he can‘t control those urges, why would we let him out to molest more children? He has admitted I can‘t control myself. Until he can, he has to stay in.
FILAN: See, that‘s the way I look at it. I mean I‘m not a guy, but what I‘m told, that is the last thing you‘re going to agree to have done to you, and so if you‘re going to agree to have that done to you, your urges must have been pretty bad that you couldn‘t control yourself. Paul Pfingst, Michelle Suskauer, Jake Goldenflame, thanks so much.
PFINGST: You‘re welcome.
SUSKAUER: Thank you.
FILAN: Coming up, one year ago, George Smith vanished from his honeymoon cruise. Word now is his wife has reached a settlement with Royal Caribbean. We‘ll get reaction from George Smith‘s family and we‘ll find out what this means for the case.
And later, the preacher‘s wife involved in a Nigerian check cashing scam? Defense attorneys are suggesting that could be part of her motive. I say that‘s nuts.
And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing sex offenders before they strike again. Our search today is in Oregon.
Police are looking for Johnny Ray Hill. He‘s 56, five-foot-nine, weighs 145 pounds. He was convicted of sexual abuse. He hasn‘t registered his address with the state. If you‘ve got any information on his whereabouts, please call the Oregon State Police, 503-378-3720. We‘ll be right back.
(BEGIN VIDEO CLIP)
JENNIFER HAGEL-SMITH, HUSBAND DISAPPEARED ON HONEYMOON CRUISE: You play back in your mind at that time just the wedding and just—everything just flashes and you think, like this is a sick joke, right, because we just got married, right, you‘re kidding me.
(END VIDEO CLIP)
FILAN: It‘s a year to the day that George Smith vanished from a honeymoon cruise and the mystery surrounding his disappearance has only deepened, leaving many unanswered questions. With tight-lipped prosecutors and investigators, the only one speaking out (UNINTELLIGIBLE) family, along with Royal Caribbean cruise lines, which faced a lot of bad publicity in the wake of Smith‘s disappearance. But just last week, Royal Caribbean settled a civil suit filed by Smith‘s wife Jennifer, who maintained something sinister happened to Smith on that ship that night.
Back in December, Hagel-Smith spoke with MSNBC‘s Joe Scarborough and took him through that night. She told Joe she and George had plans to meet another couple that evening. After a romantic dinner on the ship, she says they toasted to their future and they talked about how lucky they had been not knowing that in a matter of hours Smith would be gone. Here‘s what she says happened after dinner.
(BEGIN VIDEO CLIP)
HAGEL-SMITH: George and I you know go back to the room, quickly and then we—on our way up, he wanted to just drop his sport coat because the other night when we were—we would usually meet this other couple, you know, we‘d go to the casino, meet them, just play at the craps table, play blackjack for a little while, and call it a night. This particular night we did our—the same routine. We you know dropped off George‘s jacket and came back down and...
JOE SCARBOROUGH, SCARBOROUGH COUNTRY HOST: What time was that, that you dropped off the jacket? And again, I know it‘s...
SCARBOROUGH: ... hard to remember exact time, but was it like around midnight...
HAGEL-SMITH: Around 11:00, around 11:00...
SCARBOROUGH: 11:00, 11:00.
HAGEL-SMITH: So and you know, and that‘s the point where you know—and I can‘t speak of, and you know I wish I could. I know that there‘s a lot of questions that a lot of people have, and that‘s where sort of...
HAGEL-SMITH: ... the FBI picks up the story.
SCARBOROUGH: You can‘t say what happened in the casino that—from that point on...
SCARBOROUGH: Is that where the FBI tells you not to talk?
SCARBOROUGH: Tell you about—what about who you saw and...
HAGEL-SMITH: Yes, that‘s all under that same FBI category.
SCARBOROUGH: You wake up in the morning and there are two different stories about where you woke up and again, one said you woke up in the room, the other said you woke up three flights up. Can you tell us where you woke up?
HAGEL-SMITH: It‘s nothing scandalous, I can say that, if that‘s what people are wondering. It‘s not scandalous.
SCARBOROUGH: Yes, but you can understand...
SCARBOROUGH: ... ask that question...
HAGEL-SMITH: Right. Of course.
SCARBOROUGH: You‘re on your honeymoon.
HAGEL-SMITH: Of course.
HAGEL-SMITH: Sometimes, you know, the answer or the truth is more basic or more simple than people like to think it is. So people can you know read into that as they will.
(END VIDEO CLIP)
FILAN: But what we now know is that Jennifer Hagel-Smith was found passed out in a hallway in the early morning hours and she was returned to her room by the ship‘s staff members. We know that George Smith was not in the room when she was put to bed and that he was never seen or heard from again.
Joining me now, maritime attorney Larry Kaye, private investigator Vito Colucci, who has been hired by the Smith family and back with us, former FBI agent Don Clark. Vito, let me start with you. You were hired about a week ago by the Smith family and as far as we know the FBI is still investigating this case, so what were you hired for and are the Smiths losing faith in the FBI?
VITO COLUCCI, SMITH FAMILY PRIVATE INVESTIGATOR: Well, yes, they announced it on a television show, Susan, last Thursday that I was going to be involved in the case. In fact, I met with the Smith family a good part of this afternoon to just kind of go over our plan of attack, so to speak. I‘m basically going to be working parallel with the FBI, Susan, and what I mean by that is I‘m doing my own investigation from scratch, starting from the beginning, OK.
As I obtain anything that we feel is important for the case that same day or the next day it‘ll be turned over to the FBI, so this is not in any way to get in their way. I have a lot of admiration for especially the Connecticut part of the FBI, Susan.
FILAN: And Larry, the fact that Royal Caribbean settled this case so quickly with Jennifer, is that an admission of wrongdoing on their part?
LARRY KAYE, MARITIME ATTORNEY: Oh, I wouldn‘t say that at all. I think most civil cases do settle out of court. I think that the company wanted to put this behind them. I think Jennifer probably wanted to put this horrible tragedy behind her. Cases settle all the time without any admission of wrongdoing and I think it was probably a good business decision in order to move on.
Royal Caribbean has always maintained there was no wrongdoing. They feel that the Smith family lawsuit is frivolous, despite the fact that these people have suffered a horrible tragedy and they look forward to vindicating their position on that in court.
FILAN: Well I think it‘s important for our viewers to understand that Jennifer Hagel-Smith, the wife, settled with Royal Caribbean, but George‘s mom and dad, and sister Bree did not. So Larry, what‘s going to happen to their outstanding claims against Royal Caribbean?
KAYE: Well, their claims are for actions and alleged actions that took place after Mr. Smith‘s demise. They are claiming the same old refrain we‘ve heard about cover-up and conspiracy. They‘ve also included a claim for invasion of privacy. Those are the two claims that they‘ve asserted in court.
FILAN: Well to be clear, they‘re not doing a wrongful death lawsuit like Jennifer is doing. They‘re saying spoliation of evidence, that you basically didn‘t take care of the crime scene properly and that you intentionally inflicted emotional distress on them by never finding out what happened to George.
Vito, let me go back to you. How does the family feel about this sort of settlement, maybe a premature settlement on behalf of Jennifer, without I guess consulting with the Smith family?
COLUCCI: Well I mean obviously they‘re not happy about that, Susan, at all. I mean I‘m not too much involved in that part of it, but you know they were disappointed. They felt they were all working together on this and they feel like they got blindsided by this, OK, but it is what it is.
We‘re going to get to the bottom of this, I assure you. We‘re going to delve into this, do whatever we can, work on this full time and just bring to light whatever has to bring to light on this, Susan.
COLUCCI: They‘re not putting this to rest. They‘re not putting this to rest by any means.
FILAN: No, I‘m sure they‘re not. They have an absolutely beautiful son who they grieve every day. This has been just a heartbreak of their lives and I‘m sure they‘re not going to let this rest.
Don, FBI says this isn‘t a cold case. They say they‘re still working it. It‘s a year later. We‘ve gotten no breaks that have leaked to the public. No news. Is it a cold case? Are they still working it? What‘s going on?
CLARK: I don‘t think it‘s a cold case. In my experience, in my life with the FBI for a quarter of a century is that you never put a case in a cold refrigerator someplace and say OK, we‘ll let it go. I think they‘re going to continue to work it and bear in mind, the FBI now has about people in 50 countries, so they‘re going to be trying to get information that they can and somebody will be tending this case.
I want to say about the private investigator, I think it‘s a little bit of a slippery slope sometimes when there‘s a parallel investigation going on. In a case like this, however, and I like the attitude of this particular private investigator, is that if he‘s going to be furnishing information to the FBI, because they‘re the ones who ultimately are going to have to put a case together for prosecution, then that‘s a good deal.
I‘m sure he understands it‘s a one-way street, though. But I think somebody will be out there continuously, trying to find every little grain of information they can and evidence so that they can try to make this case.
FILAN: Well I know Vito Colucci personally. If there was ever a team player it‘s Vito. If there‘s anybody that can bring this home, it‘s Vito. Vito, does the family really—the Smith family now, really believe that George was murdered? Any doubt in their minds? Is there any doubt in your mind?
COLUCCI: No. The Smith family has believed this from the beginning and Susan, you know I‘ve been talking about this case since last July, well before I even met the Smith family, OK, or even be hired by them, so I believed in this from the beginning, you know the loud noises, the thud, the last individuals with this—with Mr. Smith that night. And again, you know, it is what it is.
I have had 30 years, Susan—you know my background, 30 years of doing this type of stuff between police and private detective work and it just doesn‘t add up to me, Susan and that‘s why I got involved in it. I‘m not going to get involved in a case I don‘t believe in...
COLUCCI: ... and I believe in this wholeheartedly that foul play was on this...
FILAN: And I‘m sure you‘re going to follow up...
FILAN: ... the leads with those Russian descent boys that live in New York. Larry Kaye, Vito Colucci, Don Clark, thanks very much for joining us.
UNIDENTIFIED MALE: Thank you, Susan.
FILAN: Coming up, another possible motive. Defense attorneys for Mary Winkler, the woman accused of shooting her preacher husband, say she was involved in a Nigerian check cashing scam. What?
And Darren Mack in prison for the apparent murder of his wife and possible shooting of a judge, well, today new developments. The D.A. has recused himself from the case because he‘s friends with the defendant. A live report coming up.
Your e-mails send them to email@example.com. Remember to include your name and where you‘re writing from. I respond at the end of the show.
(BEGIN VIDEO CLIP)
We were having trouble. Mostly my fault. He was upset with me about that. I was upset at him because he was criticizing me for things, the way I walked, the way I ate, everything, it was just building up to this point. I was just tired of it. I guess I just got to a point and snapped.
(END VIDEO CLIP)
FILAN: Coming up, what does a Nigerian check cashing scam have to do with Mary Winkler shooting her preacher husband? Apparently a lot, according to the defense. Details are next.
(BEGIN VIDEO CLIP)
BRIAN BOOTH, TENNESSEE BUREAU OF INVESTIGATION: We had also talked about our finances that night. I had gotten a call from the bank and we were having trouble, mostly my fault. Bad bookkeeping, he was upset with me about that. I was upset at him because he had really been on me lately, criticizing me for things, the way I walked, the way I eat, everything. It was just building up to this point. I was just tired of it. I guess I just got to a point and snapped.
(END VIDEO CLIP)
FILAN: Bad bookkeeping and bad finances made Mary Winkler snap and kill her preacher husband? Well, that‘s so according to her statement to police, but her financial troubles extended beyond the Tennessee borders.
(BEGIN VIDEO CLIP)
BOOTH: We had received some information that Ms. Winkler had multiple checking accounts, had some checks going through these accounts (UNINTELLIGIBLE).
UNIDENTIFIED MALE: What did your investigation reveal on bank records of Mr. and/or Ms. Winkler that raised a red flag to you regarding some financial irregularities?
BOOTH: Checks being deposited into accounts from Canada, Nigeria, in excess, total excess of $17,500.
UNIDENTIFIED MALE: These checks that were coming in, you used words like Nigerian and Canada, have you ever heard of the Nigerian stamp?
BOOTH: Yes, sir.
UNIDENTIFIED MALE: Was Mary Carol a victim of that?
(END VIDEO CLIP)
FILAN: According to Winkler‘s attorneys, Mary Winkler was a desperate woman and a victim of a Nigerian check scam, but prosecutors say she was about to get caught in a check kiting scam and this was motive to kill her husband.
Joining me now is Liz Daulton, WREC radio reporter in Memphis, criminal defense attorney Don Bosch, and former prosecutor David Rabin. Thanks for joining us.
Liz, what details did Winkler‘s attorney say was why she was a victim and not a participant in this scam?
LIZ DAULTON, WREC RADIO (via phone): I think what happened was the lack of details that were released during the bail hearing, was why they were able to say this, she is a possible victim of this (UNINTELLIGIBLE) fraud. There‘s no details issued that she was only getting the checks for money and personal uses, it just stated that they were being cashed with Canada and Nigerian names.
FILAN: David Rabin, let me ask you, I mean I‘ve got to tell you, I just listen to this and roll my eyes and shake my head. Tell me how it strikes you.
DAVID RABIN, FORMER TN PROSECUTOR: I think what you‘re seeing is the tip of the iceberg here. The woman was clearly in some sort of financial distress and was looking for money. She may have fallen for this check scam thing or this Nigerian thing, only as a vehicle to get money, but the root problem here is the relationship problem between she and her husband, which caused her to reach out and try to get a lot of money quickly. I don‘t think that the motive for the murder was any kind of scam. I think that that was just symptomatic of a greater problem that they probably had.
FILAN: Don Bosch, I want you to listen to some words that come out of Mary Winkler‘s own mouth and then I‘ll ask you about them. Take a listen.
(BEGIN VIDEO CLIP)
BOOTH: He had a shotgun he kept in the closet in a case. I don‘t remember going to the closet or getting the shotgun or getting the gun. The next thing I remember was hearing a loud thud. I remember thinking that it wasn‘t as loud as I thought it would be. I heard a boom and he rolled out of the bed on to the floor and I saw some blood on the floor and some bleeding around his mouth. I went over and wiped his mouth off with the sheet. I told him I was sorry and that I loved him.
(END VIDEO CLIP)
FILAN: Don, what you just heard out of her own mouth is a woman that shot her husband at close range in the back with a 12-gauge shotgun, said she was sorry, watched him roll out of bed on to the floor, blood comes out of his mouth and says I love you, and now we‘re hearing that she had money trouble. She was involved in a check-kiting scheme. Whether she was the victim or the perpetrator, whatever, to me, that‘s when you go to court and get a divorce, not when you go to the closet and pull out the gun. Why isn‘t this premeditated murder?
DON BOSCH, TN CRIMINAL DEFENSE ATTORNEY: Right. Well that‘s the real issue that‘s come up here that strikes me as I hear this evidence and I see what‘s going on. These are skilled defense lawyers. Leslie Ballin is as good of a lawyer as Memphis has, and I say that because often good defense lawyers have to start making decisions about not just guilt or innocence, but lesser degrees of guilt.
It strikes me that this at least in my mind, puts in doubt the issue of premeditation, that this may have been some spontaneous heat of passion sort of murder, which might bring it down to a second degree or some lesser degree, which would yield obviously a much lower punishment, a much lower sentence, should Ms. Winkler be convicted of something other than first-degree murder.
FILAN: Except for we‘ve heard already that she had multiple accounts. That she made several withdrawals on the date of his death from an ATM machine. She took $500 out right before she killed him. I mean that to me seems to point more towards premeditation than last-minute, just snapped.
BOSCH: Well, I disagree, because what you might have here, as David has suggested, is a woman in real financial distress, and by that, that doesn‘t necessarily mean that she was planning to kill her husband. It means obviously there may have been some confrontation and as has been suggested...
FILAN: (UNINTELLIGIBLE) he was asleep in bed.
BOSCH: No. What I‘m saying...
FILAN: And he was alive when she left him bleeding on the floor.
BOSCH: There clearly had been an argument between husband and wife. We don‘t know the dynamic that went on. We don‘t know that this wasn‘t something that instantaneously happened where Mary Winkler just snapped and when people just snap, it does not necessarily mean that you get to premeditation in the state of Tennessee. What you‘re talking about then are lesser degrees of homicide that might yield lesser punishments.
FILAN: David Rabin...
FILAN: ... I‘m about to just snap. My head is about to spin around and I‘d starting to spit up pea soup. Premeditation doesn‘t mean you thought about it for weeks or months in advance. It means at the moment you knew what you were doing, you didn‘t take leave of your facilities, you didn‘t just have this emotional extreme disturbance. You knew what you were doing. You intended to do it and you did it. That‘s premeditated murder. I don‘t see what we don‘t have here to meet that case.
RABIN: No, in Tennessee, there are two conflicting legal doctrines, one is premeditation, which requires cool reflection as opposed to some type of voluntary manslaughter, where the person has some sort of mitigation involved. I suggest that the prosecutor was using what happened at the moment the trigger was pulled. I didn‘t hear any testimony about the weeks and days that led up to this. I had a case very similar to this where my client stabbed her husband in the back after months...
FILAN: Real quick.
RABIN: ... of emotional dispute—abuse and she was convicted of manslaughter and was put on probation. That‘s the larger story here that I see going to come out of this. There‘s more to it than just this Nigerian check scam.
FILAN: All right. Well we‘ll stay tuned and we‘ll follow it and we‘ll let you know. Liz Daulton, Don Bosch, David Rabin, thanks very much.
UNIDENTIFIED MALE: Sure.
FILAN: Coming up, new developments in the case against Darren Mack, the man charged with stabbing his wife and shooting a judge. Now the D.A.‘s off the case because he was friends with Mack. Details up next.
FILAN: The district attorney in the case of Darren Mack, the pawnshop owner charged with killing his wife and shooting a Reno judge, has just removed himself from the case. D.A. Dick Gammick, a longtime friend of Mack‘s, said it would be a conflict of interest for him to prosecute this case, as he is a potential witness. Mack is charged with murder in the June 12 stabbing of his wife and attempted murder of the judge presiding over their divorce. After 11 days on the run, he turned himself in, in Mexico.
Joining me now with the latest is Victoria Campbell, reporter with our Reno affiliate, KRNV. Hello, Victoria. Thanks for joining us.
VICTORIA CAMPBELL, KRNV-TV: You‘re welcome.
FILAN: Fill us in on the latest. D.A. off the case...
CAMPBELL: Well they called a press conference this morning and they announced that District Attorney Dick Gammick had removed himself and his entire office from the case. He said it was really potentially a conflict of interest. He said in a review of case law in other states that any time an elected official like himself could be called as a necessary witness in such a case, that it could—it should follow with the disqualification of the entire office, so Mr. Gammick has called David Roger, who is the district attorney in Clark County, which is where Las Vegas is located, and Mr. Roger has agreed to take the case.
FILAN: And is the reason the D.A. says he‘s a potential witness because he helped negotiate the surrender?
CAMPBELL: Yes. Because Darren Mack had called him several times while a fugitive and Mr. Gammick had obviously—he said I did what I felt was right, I helped bring him in without any more potential loss of life and that was accomplished peacefully. When I asked him today during the news conference whether he would do anything differently, he said absolutely not, although he did admit that this was a very difficult decision to hand this case off to another office.
FILAN: Difficult because he wants to prosecute it or difficult because this is a friend?
CAMPBELL: I think difficult because he was looking forward to prosecuting this case. This is obviously going to be a very interesting one, it crossed a lot of state lines. There was, you know, there‘s a lot of evidence in the case that‘s very interesting, that is still to come out and I think he was looking forward to prosecuting the case as a professional, although I‘m sure personally he was not anxious to prosecute a friend but—and actually, he had not—he was not planning to prosecute the case himself.
One of his deputy district attorneys, Elliott Sattler, was set to prosecute this case, but all of that became impossible when, you know, he said as an elected official, if he could be called, it could potentially disqualify the entire office. That made it even impossible for a deputy district attorney to take over the case.
FILAN: Victoria Campbell, thank you so much for bringing us up-to-date.
CAMPBELL: You‘re welcome.
FILAN: Up next, your angry e-mails about John Couey, the convicted sex offender who confessed to burying 9-year-old Jessica Lunsford alive. Now a judge has thrown that confession out and your e-mails up next.
FILAN: Time now for “Your Rebuttal”. Many of you are frustrated that a Florida judge threw out John Couey‘s taped police confession. He‘s the convicted sex offender who is on trial for abducting, raping and murdering 9-year-old Jessica Lunsford last year because police ignored his request for a lawyer.
Jodi Adams, “Please tell us that the defendant here in the Jessica Lunsford case will not be claiming that this was involuntary manslaughter. The guard quotes Couey as saying I didn‘t mean to kill her. Will this statement be argued as no intent to kill? Will they argue that he was hiding Jessica in plastic bags in a hall so she could escape and that he didn‘t think that she would die?”
Lisa Gianardi from Albuquerque, New Mexico, “Why don‘t we just purchase an island and send every single one of these perverts there after they do their time? I know it‘s unconstitutional, but I am just so sick of these freaks.”
Actually, Lisa, the state of Washington beat you to it. The McNeil Island Correction Center is Washington‘s answer to your proposal. I guess great minds really do think alike.
Send your e-mails to abramsreport—one word -- @msnbc.com. We‘ll go through them and read them at the end of the show.
That does it for us. Up next, “HARDBALL” with Chris Matthews.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
Copy: Content and programming copyright 2006 MSNBC. ALL RIGHTS RESERVED. Transcription Copyright 2006 Voxant, Inc. ALL RIGHTS RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and Voxant, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.