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Nancy Grace
MacNeill`s Cellmates on the Stand
Aired November 05, 2013 - 20:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
NANCY GRACE, HOST: Breaking news tonight. First, off the top, we go live to Utah, the facelift murder trial. Bombshell tonight. After their 6-year-old daughter finds Mommy dead in the bathtub and Daddy`s mistress is revealed, in the last hours, on the stand, MacNeill`s cellmates say Martin MacNeill bragged, quote, "They can never prove murder."
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Man, they told me that you killed your wife. So I said, Well, did you do it? He said, The Bitch drowned.
UNIDENTIFIED MALE: His "B" of a wife, you know? And I`m, like, Whoa, Doc. You know -- you know, you`re talking ill of the dead.
UNIDENTIFIED MALE: I don`t want to be crude, but when you say "B" of a wife, what do you mean by that?
UNIDENTIFIED MALE: He called her a bitch.
UNIDENTIFIED MALE: Well, I say, Doc, they say you murdered your wife. And he was, like, No, I didn`t murder my -- my wife.
UNIDENTIFIED MALE: What else did he say about evidence against him?
UNIDENTIFIED MALE: That they didn`t have any evidence and that they couldn`t prove anything.
UNIDENTIFIED MALE: Did he say whether he did or didn`t kill her?
UNIDENTIFIED MALE: He just mentioned that they couldn`t prove it.
UNIDENTIFIED MALE: I asked what he was locked up for, and he said him and his wife was locked up. So at the time, I thought that his wife was still alive.
UNIDENTIFIED FEMALE: The state`s evidence of motive consists of the affair with Gypsy Willis.
UNIDENTIFIED MALE: Did you later find out who that woman was that he was talking about?
UNIDENTIFIED MALE: On the TV, they said her name was Dipsy or Gypsy or something like that.
UNIDENTIFIED MALE: Did he ever say anything about how his wife died?
UNIDENTIFIED MALE: The only thing he said, that she had drowned.
(END VIDEO CLIP)
GRACE: Also tonight, outrage! We go live to Iowa. Mommy gets a call from day care. Her 3-year-old little girl, Autumn, unresponsive after falling down the stairs. Well, 48 hours later, Autumn, 3 years old, is dead -- skull fracture, brain swelling. The injuries don`t add up. Tonight, did 3-year-old Autumn`s baby-sitter beat the child because she wouldn`t take off her coat?
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: A mother gets an early morning call from her day care provider. She`s told her 3-year-old child has fallen down the stairs. The mother rushes her child to the hospital, where doctors find a skull fracture and brain swelling, injuries authorities say are inconsistent with the story told by the in-home day care provider.
According to police, the day care provider eventually changed her story and says she threw the young child to the floor because she refused to take her jacket off. Now the child is dead, and the day care provider could be facing some serious time behind bars.
(END VIDEO CLIP)
GRACE: And tonight, missing. We go live to Conway. Teen cheerleader and honor student Abby (ph) heads home from school. She disappears, seemingly vanishing into thin air. Tonight, where is Abby?
Good evening. I`m Nancy Grace. I want to thank you for being with us.
Bombshell tonight. First, off the top, to Utah. After their 6-year- old girl finds Mommy dead in the bathtub, Daddy`s mistress is uncovered. But in the last hours, on the stand in a court of law, MacNeill`s cellmates tell a jury Martin MacNeill bragged, quote, "They`ll never prove murder."
We are live in Provo, at the courthouse. To Jean Casarez, CNN correspondent. Jean, inmate after inmate after inmate takes the stand in the last hours, all of them saying virtually the same thing. They are not connected in time or space, and I doubt pretty seriously these inmates all got together to get their stories straight.
JEAN CASAREZ, HLN LEGAL CORRESPONDENT: Exactly. They corroborated one after the other. But let`s look at inmate number two that maybe is the headline for prosecutors today.
Originally, he said MacNeill told him, Oh, my wife died. It was prescriptions she was taking. He said, A little bit later, I got nosy. I wanted to ask more questions. He said she died of a heart attack. So he changed his story mid-stream. Initially, though, said it was prescriptions.
GRACE: Everybody, let`s go in the courtroom. Take a listen to what cellmates have to say about Dr. MacNeill.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: I asked him -- I asked him, It was true? Because they were saying that he came out on TV and...
UNIDENTIFIED MALE: Why did you want to know?
UNIDENTIFIED MALE: Huh?
UNIDENTIFIED MALE: Why did you want to know?
UNIDENTIFIED MALE: I was just curious.
UNIDENTIFIED MALE: OK. OK. Sorry. Go ahead.
UNIDENTIFIED MALE: He just mentioned that they couldn`t prove it, that medication that she was taking, giving them (ph), was prescribed.
UNIDENTIFIED MALE: OK. Did he say whether he did or didn`t kill her?
UNIDENTIFIED MALE: He just said, They can`t prove that it was -- that it was me.
(END VIDEO CLIP)
GRACE: Unleash the lawyers. With me, Susan Moss, New York, Remi Spencer, defense attorney out of New York, Yale Galanter, lawyer for O.J. Simpson, defense attorney joining me out of the Miami jurisdiction.
All right, Galanter. Come on. People say you kill your wife, and when you`re asked about it, they go, Can`t prove it. That doesn`t wash with me.
YALE GALANTER, DEFENSE ATTORNEY: Listen, I don`t think the inmate testimony has any credibility at all. All these inmates are looking for a "Get out of jail free" card. They`re all looking to curry favor with the prosecution.
You know, this is a very high-profile case. They know it`s on television. They could have gotten this information anywhere. And the whole idea that they couldn`t have corroborated to get their stories straight is inconceivable because all they have is time on their hands, and that`s all inmates do is try and figure out how to get out of jail.
GRACE: Really? So how do you place one correctional institute collect phone call to another correctional institute pay phone that doesn`t accept collect phone calls? There`s no way that these guys could have gotten together and colluded, Sue Moss. And the reality is they were in jail at different times, in different cells, on different cellblocks, and he says the same thing every time, Sue Moss. When asked behind bars, Mr. Big Man says, yes, they can`t prove it.
SUSAN MOSS, FAMILY LAW ATTORNEY: That`s right. Apparently, everyone in the old cellblock is talking to this jailhouse doc. I mean, the reality is, if they can`t show that these four people spoke to each other and got their stories straight, the fact that they used the same language, the fact that they used the same descriptions is really going to put this case in a nice little bow, based upon all the evidence that has presented to date.
GRACE: Remi Spencer, may I ask you, neither here nor there, but why are you smiling? Is this funny?
REMI SPENCER, DEFENSE ATTORNEY: Of course it`s not funny. But the question is what can they prove? And if all they can say is that the doctor said the state can`t prove it, how can anybody conceivably argue that that is a confession? It is the state`s burden to prove it.
GRACE: Nobody said it was a confession. Did I say it was a confession?
SPENCER: No, Nancy.
GRACE: No?
SPENCER: You didn`t say it, but if the prosecutors...
GRACE: Are you married, Remi?
SPENCER: ... are putting them up on the stand...
GRACE: Are you married?
SPENCER: ... then they -- really not sure how that has anything to do with the murder trial, Nancy.
GRACE: I`m going to take that as a no. All right, Remi, if your husband -- or it doesn`t even matter, married, not married. If somebody you love turns up dead, somebody you love, and somebody else says, Did you kill him? You know what? If somebody said that to me, they would get a knuckle sandwich, no mayo.
SPENCER: You`re right, Nancy, but...
GRACE: If someone would even suggest that you could kill the thing you love the most in the world -- and all this guy says is, Oh, they can`t prove it.
SPENCER: Yes, but Nancy, you`re not sitting in a cell.
(CROSSTALK)
SPENCER: You`re not sitting in a cell. You`re not facing an indictment.
(CROSSTALK)
GRACE: ... murder my spouse!
(CROSSTALK)
SPENCER: He is innocent under the law unless and until the state can prove him guilty. So to say that his reaction is different than what yours or mine would be under the circumstances is not a fair comparison.
GRACE: Listen...
SPENCER: He is under indictment, on trial for his life.
GRACE: OK, Remi, look around. Does it look like a courtroom to you? Do you see a judge? Do you see a jury? Do you see witnesses, bailiffs? No, you do not, because we are not in a court of law. We are not bound by the rules of evidence. We can talk about whatever we want to talk about!
And I want to talk about the fact that every time he was approached behind bars and said, He, did you do it? He -- all he would say is either, The bitch drowned, or, They can`t prove it. And see, that bothers me, Remi.
SPENCER: Well, I think...
GRACE: That concerns me.
SPENCER: It concerns me, too, because he has no obligation to talk to anybody. And he`s a smart man. He knows that nobody is going to...
GRACE: I don`t even know what you`re talking about!
SPENCER: His lawyer...
GRACE: We`re not even talking about the right to remain silent!
SPENCER: Yes, we are.
GRACE: He`s not being questioned by police! We`re not.
SPENCER: Well, yes, he is, essentially. Nothing is private in the jail. That`s exactly why the state is putting these jailhouse snitches on the stand.
GRACE: You know, you`re -- you`re -- you`re talking now about the right to remain silent. The right to remain silent, under the 5th Amendment, applies when you are in a court of law, or you are being held by police and questioned. That`s when you have a right to remain silent, not when you start gabbing to your cellmate to get their Milky Way or their Diet Coke! That`s not what this is about.
Everybody, we are live and taking your calls. To Cheryl Hunter. Let`s go to LA and talk to Cheryl Hunter, trauma recovery expert, author of "Use It: Turning Setbacks Into Success." She is a crime victim.
Now, a lot of people think that to say "rape victim" is bad, but you know what? I disagree. She`s willing to go out there and talk about what crime victims have gone through and what she has gone through.
So Cheryl, what do you make of Dr. MacNeill? You`re a crime victim. When he is asked in jail, did you murder your wife -- you know what? If somebody asked me if I murdered my husband or my mother or my father or my child, I couldn`t get a finger necklace around them fast enough! His answer is, They can`t prove it.
CHERYL HUNTER, TRAUMA RECOVERY EXPERT: And he -- it`s the one opportunity he has to come clean and tell his story, but he uses it to basically indict himself. And it`s interesting because a lot of people seem to think that the witnesses that have come forth, the prison snitches, if you will, that they`re unreliable.
And sure, there is plea bargaining, and sure, they could certainly gain something from testifying. But there`s also the culture in the prisons to consider, and they also, if they testify, would jeopardize their own safety and security...
GRACE: Exactly! That is...
(CROSSTALK)
GRACE: You know, Cheryl, I`m so glad that you brought that out because in court -- we won`t even show their faces because we don`t want them to get killed in jail for being a snitch, for telling the truth. That`s the other side of the coin, Cheryl. You`re exactly right, Cheryl Hunter.
Everybody`s talking about, Are they are getting a plea deal? Are they getting lenient treatment because of this? Let me remind you that all of them say they`re not getting a deal for testifying. And if they do, this case, this MacNeill case is set for reversal because that means that the state`s case would be built on lies. So they can`t get a deal now.
Let`s go in the courtroom. You judge for yourself what you think about these inmates.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: How did you come across his path?
UNIDENTIFIED MALE: The first time I met him was -- I was staying off in the -- they call it a chicken coop. It`s like, an 18-man cell. And that`s where I met him at.
UNIDENTIFIED MALE: OK. So is it kind of like a dormitory? Or how else would you describe it?
UNIDENTIFIED MALE: Yes, sir.
UNIDENTIFIED MALE: OK. And its nickname was the chicken coop?
UNIDENTIFIED MALE: Yes, sir.
UNIDENTIFIED MALE: Were you in there with him?
UNIDENTIFIED MALE: Yes, sir.
UNIDENTIFIED MALE: All right. Did you guys become friendly?
UNIDENTIFIED MALE: Yes, sir.
UNIDENTIFIED MALE: How did that happen?
UNIDENTIFIED MALE: I work out a lot, and you know, he used to ask me a lot of questions about working out. And then sooner or later, we started working out together.
UNIDENTIFIED MALE: Did you ever read a magazine article about Doc?
UNIDENTIFIED MALE: Well, I glanced at it because by the time I got to it, most of it was tore out of the magazine because I used to work in the leisure library at the prison. But I didn`t really get to read the article.
UNIDENTIFIED MALE: Do you recall what magazine it was?
UNIDENTIFIED MALE: I think it was "People`s." (sic)
UNIDENTIFIED MALE: And you said they had an article on Doc, but you glanced at it?
UNIDENTIFIED MALE: Yes, because the whole article wasn`t -- there was just bits and pieces of it because somebody had tore it out.
UNIDENTIFIED MALE: OK. Did you talk to Doc about that article?
UNIDENTIFIED MALE: Yes, sir.
UNIDENTIFIED MALE: What did you talk to him about?
UNIDENTIFIED MALE: Well, I just asked him, I said, Doc, they say you murdered your wife. And he was, like, No, I didn`t murder my wife. If I did, they don`t have any evidence. So you know -- you know -- and I was, like, But Doc, they say that you murdered -- he was, like, No. You know, I`m fixing to go home. They don`t have any evidence.
UNIDENTIFIED MALE: What else did he say about evidence against him?
UNIDENTIFIED MALE: Nothing, really, except that they didn`t have any evidence and that they couldn`t prove anything.
(END VIDEO CLIP)
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: Not every man who has an affair devalues his spouse to the degree that he is driven to murder her.
UNIDENTIFIED MALE: Who is Martin MacNeill?
UNIDENTIFIED FEMALE: That was my dad.
UNIDENTIFIED FEMALE: The defendant`s motion to exclude evidence that he referred to Michele MacNeill as a bitch in conversations with inmates three, four and Jason Poirier (ph) is denied.
UNIDENTIFIED MALE: Did he ever say anything about how his wife died?
UNIDENTIFIED MALE: Only thing he said, that she had drowned.
UNIDENTIFIED MALE: So I said, Well, did you do it? He said, The bitch drowned.
UNIDENTIFIED FEMALE: He said that, Your mother`s not breathing. She`s in the bathtub.
UNIDENTIFIED MALE: I really hoped he didn`t do it, to be honest.
(END VIDEO CLIP)
GRACE: Man! Man! One inmate after the next coming into that courtroom, saying that Martin MacNeill, when asked behind bars, says, either, the bitch drowned or they can`t prove it. That`s all he said. That is it. He repeatedly referred to Gypsy Willis as his wife.
We are taking your calls, and live in Provo. Out to Liz in New York. Hi, Liz. What`s your question?
UNIDENTIFIED FEMALE: Hi, Nancy. I have two quick questions. Number one, has Martin MacNeill been in jail this entire time, that he hasn`t gotten out? And number two, this whole bathroom scenario, it kind of reminds me of Drew Peterson.
GRACE: Yes.
UNIDENTIFIED FEMALE: Do you think he got the idea of doing this by -- with Drew Peterson, and him being a doctor, so he knew that he possibly could get away with it?
GRACE: I don`t think he got the idea from Drew Peterson. But there is evidence that a couple of weeks before his wife was killed, one of his daughters saw him looking up, I think it was in Grey`s medical dictionary - - he was looking up different medicines because he didn`t know how they would work. I think that he planned this long in advance.
Jean Casarez joining me at the courthouse in Provo. Jean, he has been in jail, but remember, this went for several years before he was really even investigated. He was walking free, living it up with Gypsy.
CASAREZ: He was, but he -- the jury doesn`t know about his identity theft conviction and the federal prison term, but in a sense, they do now because every federal inmate said they were with him in federal prison. That was in Texarkana, Texas, and then he was really arrested almost immediately after that for murder.
GRACE: Everybody, I`m going to take you right back into the courtroom. But Jean, before we go back to the courtroom for more inmate testimony, where he says, The bitch drowned, and, They can`t prove it, how did he react? And everybody`s acting like these guys on the stand, these inmates, are so bad. What the hay do they think MacNeill is? He`s a convicted felon, too. How are these guys any worse than this man right there, except that he is rich and he is white and he has a medical degree? How are they any different?
CASAREZ: They`re not. And here`s something that I think needs to be brought out. These inmates didn`t step forward. Investigators here flew to Texas and just started interviewing inmate after inmate that they knew had had contact with him. They gave their answers right then and there. They didn`t really have time to prepare.
GRACE: And you know what, Jean? I have put inmates on the stand before, and I could not offer them a deal. And you know what? You know what? I mean, I had the power to, but if I gave them a sweetheart deal for testifying, that could hurt another prosecutor`s case, all right? If I used them and they got a deal, then that could hurt somebody else`s case with that inmate.
So you can`t just throw out sweetheart deals to people to get their testimony. You`ve got to go to the jail. You`ve got to ask them. You`ve got to beg them to tell the truth and to tell it on the stand, even though they may not get anything in exchange.
Let`s go back in the courtroom. Take a listen. What do you think?
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: He came out of (INAUDIBLE) He was upset. He said something about his daughters. And then after that, what did he talk about?
UNIDENTIFIED MALE: He said that they didn`t give him no halfway house because of his F-ing daughters and because of his B of a wife, you know? And I was, like, Whoa, Doc. You know, you -- you know, you talking ill of the dead. You know what I`m saying? And he was, like -- he just got this look on his face like he don`t want to talk about it anymore and walked off.
UNIDENTIFIED MALE: I don`t want to be crude, but when you say "B" of a wife, what do you me by that?
UNIDENTIFIED MALE: He called her a bitch.
(END VIDEO CLIP)
(COMMERCIAL BREAK)
GRACE: Welcome back, everybody. We are live in Provo. The facelift murder trial goes on. Joining me right now also at the courthouse, Kimberly Somers Popish. This is Michele MacNeill`s niece, very close to her aunt Michele. And she was in court today with many of us.
Kimberly, thank you for being with us.
KIMBERLY SOMERS POPISH, NIECE OF VICTIM: Thank you.
GRACE: Kimberly, do you believe Martin MacNeill is guilty? And if so, why?
POPISH: Well, just like we have said all along, we`ve questioned what -- we grew up with him that way. We grew up with him wondering. I`ve heard stories of everybody`s concern growing up.
I didn`t want to believe it, but in retrospect, after I found out that Aunt Michele had passed away, I realized that they were all right and it had to have been -- had to have been something that he had done.
GRACE: But why do you think he murdered her? What makes you believe that?
POPISH: That he`s capable. He set this up. Everything leads up to that, everything that he has done, everything that`s been reported.
GRACE: Before Michele`s death, did you believe he was capable of murder?
POPISH: No, I didn`t want to. She was my aunt. I idolized her. I knew that people had their concerns of his past. And I know that, you know, growing up, that they didn`t agree with him. But I would speak to her, and she loved him. And I loved her. So I didn`t listen to what anybody said.
GRACE: Well, when you say you didn`t listen to anybody, what anyone said about MacNeill -- like what?
POPISH: That he was dangerous, that they -- they -- he has a past, that he had done some things wrong, that there was question of the -- the doctor`s transcript, forgeries. He was -- it was just difficult to be around him. He wouldn`t participate in family activities. He was there, or not even there. A lot of the times, he wasn`t even present.
GRACE: How did he treat Michele?
POPISH: So -- I didn`t see much interaction that way, so I really couldn`t answer that. It`s not like any other relationship that I`ve seen, where it`s a loving husband and a loving wife. He was just there.
GRACE: Also with us tonight, talk show host, KTKK, Jim Kirkwood. Jim, what do you make of this procession of inmates all saying the same thing, and they`re not connected to each other?
JIM KIRKWOOD, KTKK (via telephone): That`s a good point you made, Nancy, and it certainly -- it sets his state of mind. To say they can`t prove it, that`s a guilty statement. From my point of view, he is essentially admitting that he killed his wife, but he`s not just going to say it. That`s what I got.
GRACE: Also joining us, Matt Zarrell. Matt, tomorrow, another inmate set to take the stand to say what?
MATT ZARRELL, NANCY GRACE PRODUCER: Yes. This inmate is going to testify, apparently, that MacNeill did confess to killing Michele.
GRACE: Everybody, when we come back, Mommy gets a call from day care her 3-year-old little girl, Autumn, unresponsive after falling down stairs. Well, 48 hours later, Autumn is dead. Did 3-year-old`s Autumn`s baby- sitter beat the child because she wouldn`t take off her coat?
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: A mother gets an early morning call from her day care provider. She`s told her 3-year-old child has fallen down the stairs. The mother rushes her child to the hospital, where doctors find a skull fracture and brain swelling. Injuries authorities say are inconsistent with the story told by the in-home day care provider. According to police, the day care provider eventually changed her story and says she threw the young child to the floor because she refused to take her jacket off. Now the child is dead, and the day care provider could be facing some serious time behind bars.
GRACE: I don`t buy it. You don`t get multiple injuries to your head and your face from one throw to the floor, and even if it had been one throw to the floor, why would she throw a 3-year-old child to the floor because they wouldn`t put on their coat? I mean, this morning, out to you -- Dennis Morrice, news director, KLEM, just this morning, Lucy would not put on a coat. I didn`t throw her down. I put her jacket in her backpack, because I knew she was going to get cold. You know what? Sure enough, before we could even get to the car, she was in her backpack getting her jacket out. Even with this woman`s story, she`s guilty of murder.
(END VIDEO CLIP)
DENNIS MORRICE, NEWS DIRECTOR, KLEM RADIO: A lot of people are thinking that, but of course we`re still waiting for the conclusive autopsy reports before those charges will actually be filed against the day care provider.
GRACE: That makes perfect sense, Dennis Morrice. Everyone, Dennis Morrice joining me, the news director at KLEM. Dennis, what do you know about the case? Tell us what happened.
MORRICE: Essentially what you`ve already said. The mother dropped off the 3-year-old daughter at a day care provider, which I understand the day care provider did not have a day care license. It may have been like a baby-sitting service, if you will, but apparently, what we know from the police reports that have been filed is that the day care provider, whose name is Richelle Staff (ph), 33-year-old, says that the 3-year-old girl fell down the stairs. That was her initial story. She called up the mother. The mother came, rushed the daughter to the hospital, to the Orange City, Iowa hospital. Then it was airlifted to Sioux Falls, to a children`s -- Sanford Children`s hospital there, and unfortunately, as you mentioned three days later, the child then has passed away.
GRACE: Oh, Dennis. I`m just looking at these pictures of this child. Liz, let me see this little girl. Her name is Autumn Aljersma (ph), and she`s just absolutely beautiful. Look at that smile. Look at this girl. I -- I just can`t take it in. That the baby-sitter, a day care service, and what Dennis Morrice is saying is she`s not licensed to be a day care. Because in that jurisdiction, if you`ve got 5 or under children, you`re not licensed as a day care. That`s how many children she kept in her home.
She gets -- mommy gets a call. Mommy`s at work. That there`s something wrong with her daughter. That she fell downstairs. This doesn`t look like a two-story home to me. I don`t know what stairs she`s talking about. But this child, unresponsive. Justin Freiman, what were the injuries we know of right now?
FREIMAN: The child suffered a fractured skull and brain trauma. It was those injured that tipped police off there was more than just an accident there.
GRACE: Brain trauma. Out to Dr. Michelle Dupre, medical examiner, forensic psychologist. Dr. Dupre, joining me out of Columbia, South Carolina. Fractured skull? Brain trauma? From getting thrown down on -- pushed down on the floor for not taking her coat off? I don`t -- I`m not buying that. This girl is 3 years old. Let me see how tall she is. Probably about three feet tall. How can you die from getting pushed down from three feet? I don`t believe it. She beat her. I guarantee you, doctor. This child was beaten.
DR. MICHELLE DUPRE, MEDICAL EXAMINER: Nancy, you know, we have to look at the injuries, and you`re probably right. Being thrown down, maybe she picked her up and threw her down? I really don`t know. But you can certainly get a skull fracture, swelling, a brain trauma, from being thrown down, even an adult just throwing a child down.
GRACE: You know, even if so, Justin Freiman, they -- first she lies and says the girl falls down steps. How did we get to the little girl wouldn`t take her coat off part part? Where did that come from?
FREIMAN: That`s when police went and reinterviewed the baby sitter, and that`s when she changed her story and said she got frustrated by the girl not wanting to take her coat off, and slammed her to the floor.
(COMMERCIAL BREAK)
UNIDENTIFIED MALE: It`s a mother`s worst nightmare. Police say a 3- year-old was thrown to the floor by her day care provider. Why? Because she wouldn`t take her coat off. The child suffered skull fracture and brain swelling. Injuries that would prove deadly. The day care provider has been charged with child endangerment and felony willful injury, but that was before the child died. Are more serious charges on the way?
(END VIDEO CLIP)
GRACE: Outrage tonight. A 3-year-old little girl is dead. Show me the picture, please, Liz, of Autumn Elgersma (ph). She`s 3 years old. Mommy drops her off to the baby-sitter on her way to work. She gets a call. The girl falls down the stairs. She`s dead. It`s that fast. This child`s dead. This child`s life so delicate and precious. Police didn`t buy it when it turns out she`s got a fractured skull and brain swelling. They go back to the day care worker. Her name, Rochelle Sapp (ph). 33 years old. Runs an in-home day care. P.S., she`s out -- she`s walking free tonight on bond. She has three children herself. Then she says, what is it? Dennis Morrice, KLEM? What`s her response then after police come back out?
MORRICE: Well, as you`ve indicated, she first said in her story that the child fell, as a result of falling down the stairs, but the Division of Criminal Investigation from the state of Iowa was called in to investigate this along with the Orange City police, and also Sioux Falls police of Minimahas (ph) County of South Dakota were investigating this, questioning her, saying the injuries are not consistent with what your story is. And after investigation and after further questioning, then Sapp finally admitted she literally picked up the girl and slammed her to the floor.
GRACE: Unleash the lawyers. Joining me, victim`s rights advocate, Sue Moss, also with me, Remi Spencer, defense attorney from New York. And Yale Galanter, renowned defense attorney, represented O.J. Simpson. I don`t know if I`d brag about that. Out to you, Sue Moss, weigh in.
MOSS: Why are we waiting for an autopsy report? She should be charged with murder now. This child is dead. Don`t tell me that she fell down some steps. And her second argument when somebody changes their story, you know they have something to hide. She wouldn`t take off her coat? At 3, so she gives this kid a deadly injury? I mean, this is a sicky.
GRACE: Remi, the fact that she changed her story, is bad enough. You always smell a rat when people are changing their story. I`ve had witnesses and defendants and victims add to their story. Their story can get embellished when you ask the right questions. If you continue asking questions, asking, asking, asking, you`ll get additional facts. But when the facts actually begin to change, then you have a problem. But even under her second story, Remi, that she picked up the child and threw her down, under the law, that`s going to be just as bad as beating her. Because picking her up and throwing a child like this. She couldn`t have weighed over, you know, 30, 35 pounds, max. That`s like a bag of groceries.
SPENCER: Well --
GRACE: Threw her to the ground and she has a skull fracture and brain swelling?
SPENCER: Well, obviously, this is a horrible tragedy, and a terrible case. I mean, a child injured or dead is just about the worst thing anybody could imagine, but to answer your question, Nancy, I respectfully disagree. I don`t believe that that`s true. It`s one thing to be beating someone with a purpose to injure or kill them. It`s another in a moment of frustration and anger to push them. Obviously, both are illegal and crimes, but one is with the intention and one is without.
GRACE: Hold just a moment, Remi. Let`s review the law as it exists in black and white. As I recall the criminal statute, angry, I was mad because you wouldn`t take your coat off, is not a defense under the law. Anger, or revenge, is not a defense.
Now, if you`re referring to heat of passion, voluntary manslaughter, maybe. But here, the fact that a child will not take off their coat. That`s like saying, you have on a gold earring. Boom. And I shoot you with my Uzi.
SPENCER: Actually, it`s not at all like that, Nancy.
GRACE: Yes it is, because a child not taking off their coat is not provocation.
SPENCER: Of course -- but murder is intent to kill.
GRACE: No, it`s not.
SPENCER: Manslaughter is recklessly killing without the intent.
GRACE: No. Murder is intent to do the act. For instance, if I hold a gun up to your head --
(CROSSTALK)
GRACE: And I go, oh, my stars. I only meant to scare you, Remi. How in the world are you dead? No, no. I (inaudible) hold the gun up and pull the trigger. That is the intent the law looks for.
SPENCER: If this woman`s story is truthful, which is that she pushed the child, and she fell, and that`s what cased the injuries, that is not murder.
GRACE: That`s not the story. The story is she picked her up and threw her to the ground. That is her story.
(CROSSTALK)
GRACE: Danger, danger. Sue Moss is waving her finger around. Yale, I was coming to you, but I`m afraid. Go ahead, Sue, jump in.
MOSS: Felony murder rule. If she committed the felony of hurting this little girl, then that is -- or child abuse or felony assault. That is the felony that is necessary to invoke the felony murder rule. She`s guilty of murder.
GRACE: She`s got a good point. Yale Galanter, felony murder is simply in the commission of a felony, a death occurs. For instance, I`m robbing a bank, and my buddy suddenly pulls a gun and shoots somebody. I`m guilty of felony murder, because I`m robbing a bank and somebody dies. It doesn`t matter what I intended. A felony was going down. I was committing a felony. And somebody dies. She`s right.
GALANTER: Yes, she`s definitely right on the law, but felony murder in a case like this is a real stretch. This is classic manslaughter. Child care workers get upset. They abuse children, they throw children, then they lie to the police about it. Which really is going to be determinative here, Nancy, is what the forensics come back with the autopsy.
GRACE: Yale, I don`t usually agree with you and O.J. Simpson in my mind is guilty of double murder. But that aside, I`m really surprised you just rattled off those facts, yeah, they abuse children, they treat them like crap, blah, blah, blah, they beat them, you acted like that was nothing. That`s felony child abuse.
GALANTER: Listen, I`ve been involved in a lot of these shaken baby syndrome cases. I hate them. They`re deplorable. You know, parents go to work. They leave their children with child care workers, and then these child care workers, who are unlicensed, untrained, uneducated, abuse these children.
Nancy, I`m with you here 100 percent. The real issue is, what is she going to be charged with? What`s she going to plead to? It`s definitely not an intentional murder. (inaudible) felony murder, this is manslaughter.
(CROSSTALK)
GRACE: Remi -- I`m going to let you and Remi Spencer just trot out after this program and have a little drink together, and talk about how this lady should walk free, but --
SPENCER: Nobody is saying that, Nancy.
(CROSSTALK)
GALANTER: But it`s not a first-degree murder case.
GRACE: Oh. You know what? We`ll see about that, Galanter.
When we come back, teen cheerleader and honor student, Abby, heads home from school. She disappears, seemingly vanishing into thin air. Tonight, where is Abby?
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Breaking news. A desperate search tonight for a New Hampshire girl, and still no sign of her. Abigail Hernandez vanished after leaving her high school. Investigators are searching the area, but haven`t found any sign of the 15-year-old girl. She was seen walking from the school hockey field in the 2:00 hour. Investigators say after the 15- year-old left school, she sent a series of text messages to a friend. Hernandez was last seen wearing dark leggings, black boots, and a dark- colored striped sweater.
(END VIDEO CLIP)
GRACE: Tonight, missing. We need your help. Out to Michael Board, anchor, WOAI. What can you tell us about Abby?
MICHAEL BOARD, WOAI NEWS RADIO: Abby is a 15 year old girl, and like any 15 year old girl, she`s obsessed with Facebook and she`s always got her nose stuck in her cell phone, sending messages to her little boyfriend. In fact, the last time anybody heard from Abby was about 3:00 after school that day when she was walking on -- walking away from school. She was sending text messages to her little boyfriend, with hearts and stars on them. And then poof, absolutely nothing, Nancy. Police now telling us she never made it home that day. They had search dogs out that day. They say they followed her route away from school as she was walking home, and then the trail went completely vanished.
Can you imagine a teen who`s obsessed with Facebook giving up cold turkey? Something doesn`t make sense here, Nancy.
GRACE: You`re right, Michael Board, WOAI, you`re right. Brett Larson joining Michael. Brett Larson, investigative reporter. At first it was said that she got off the school bus and people watched her, and she made it home. Now we`re hearing she never made it home. And I`m very curious about how that development occurred, how we thought she never -- that she made it home, and then suddenly the story changed and she never made it home? What, what can you tell us, Brett? What do we know about the case as of tonight?
BRETT LARSON, INVESTIGATIVE REPORTER: You`re absolutely right. The story has changed as more tips have come in to the FBI and local police as they try and find Abigail. As was just said, her texts just suddenly stopped. But now we`re hearing some unconfirmed reports of an individual matching her description who was walking on a path that wasn`t the path she would normally take home. So now the suspicion is she may have gotten into a car with someone and driven off. And that may be where she has gone. We, of course, don`t know who this driver is, and we have no reports of there being a witness of seeing her disappear.
Her parents pleading with her on Facebook telling her it`s OK. We are not mad, just come home and let us know you`re okay.
(COMMERCIAL BREAK)
GRACE: Welcome back, everybody. Tonight we are on the search for Abby. She`s a cheerleader, an honor student. She came home on the school bus. She got off. She was texting away. She never made it home. Where is Abby? Tip line, 1-800-call-fbi. There`s a $20,000 reward. Take a look at her. Her birthday would have been Saturday, October 12. Just 14 years old at the time she goes missing. Abby, Abigail Hernandez, gone. Parents at work. She comes home on the school bus. How many of us did that? I did. Come home from the school bus and walk just from the bus stop home. This child never made it.
Back to you, Michael Board, WOAI. Give us a description and what can you tell us about the possibility someone got her to get into their car?
BOARD: Well, she`s about 5`4, 118 pounds, long brown hair, an olive complexion to her. People will notice in this area, there have been billboards put up by the highway, just in case somebody -- she got into the car with somebody or somebody noticed her getting into a car with somebody. There`s the off chance that maybe somebody saw something that didn`t just look right. There`s a hope that she might pop up. This is a fairly busy travel route through this area here. Police have also used dozens of search dog teams to comb through an area where there`s a ski resort near here. It`s a popular resort for people meeting even in the summertime when there`s not snow there, or the fall time, not like it is now, when there`s no snow. Still a popular place for people to meet. If you`re meeting somebody from out of town, that would be an obvious meeting point. They`ve searched that area.
GRACE: Exhaustively, actually, Michael Board and Brett Larson, they have searched it exhaustively. Tip line, 1-800-call-fbi. There`s a $20,000 reward.
Let`s stop and remember Army Specialist Andrew Hand, just 25, Enterprise, Alabama. National Defense Service Medal, Combat Action Badge, Army Service Ribbon. He loved hunting and fishing with his father. Parents Kenneth and Phyllis. Step parents Renee and Jerry. Sister Laura, brother Robert. Widow Amanda. Sons Tristan and Gavin. American hero, Andrew Hand.
Everyone, I want to give a special thanks to the doctors and nurses at Coliseum Park Hospital for saving my mother. Thank you. Dr. Drew up next. I`ll see you tomorrow night, 8:00 sharp Eastern. And until then, good night, friend.
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