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May 30, 2006

Latest on Duke Case, Bribery Scandal, Haditha Incident

Hannity & Colmes

SEAN HANNITY, CO-HOST: And welcome to "Hannity & Colmes." Thank you for being with us. I'm Sean Hannity.

Coming up tonight, is the mainstream media accusing our U.S. Marines of murder? Tonight, we'll bring you the very latest on the investigation into what happened in Haditha.

Now, you'll never also believe why a judge let this child sex predator go without a day in jail. We'll tell you that story.

But first, our top story tonight. A defense motion in the Duke rape case states that the accuser failed to pick out lacrosse player David Evans in a photo lineup, but then later identified him with 90 percent certainty, but that was two weeks later.

Now, the motion also makes public for the first time the contents of the report made by the first police officer to arrive at the lacrosse house. Now, the officer reported that, while the accuser told employees at the Durham mental health facility and at the emergency room that she had been raped, she told him that she had just been groped.

Joining us now, FOX News Channel's Megyn Kendall, also the author of "A Simple Act of Murder," former homicide detective and FOX News contributor, Mark Fuhrman. And also joining us in studio tonight is defense attorney Jill Davis.

All right, Megyn, let's start with you. We got to start right here. Now, this 90 percent certainty identification, well, she first had an opportunity to identify Evans and failed to do so, at a time immediately after this had all happened, when her memory would be more fresh. And, again, this is the same evidence she said, "Oh, but if he had the mustache on," weeks later.

How would this ever stand up? How would it ever be possible for this to stand up in a court of law, Megyn?

MEGYN KENDALL, FOX NEWS CORRESPONDENT: Yes, it's going to be very troublesome. It's definitely going to be an uphill battle for Nifong.

I mean, the thing that's surprising about this, Sean, you know, is the defense team just learned about this photo lineup when it received one piece of paper in those 1,300 pages of paper that were turned over to them.

They see one piece that reflects there was a photo lineup only eight days after the alleged attack, and in that photo lineup she failed to pick Evans out of the attack. That's two weeks before she wound up picking him out with 90 percent certainty.

HANNITY: All right, Megyn...

KENDALL: But keep in mind that one of their complaints is that the police said Nifong didn't turn over the full results of that photo lineup, and they want to know why.

HANNITY: All right. So that means, one week after the alleged attack, that with the events still fresh in her mind she couldn't identify Evans.

KENDALL: Right.

HANNITY: When she did say 90 percent, she said, well, that would be if the mustache was there. Now, also...

KENDALL: Right. And you know what else, Sean? They're also pointing out that, when she finally identified him with 90 percent certainty, she stared at his photo for 43 seconds. She was only given 60 seconds to pick somebody out. So they had the photo up there for 43 seconds when the time was running out. She finally said, "That looks like him, sort of. I'm 90 percent sure, except the mustache."

(CROSSTALK)

HANNITY: All right, Mark Fuhrman, let's couple what we're discussing here with she finally told officers that -- you know, first it was rape, then it wasn't rape, then she was groped outside of the car, then she changed back to no rape, and then went back to rape again, multiple versions, multiple stories.

She can't identify the people. So the question is: How does the district attorney in this case go forward, knowing all that we know at this particular point?

MARK FUHRMAN, FOX NEWS CONTRIBUTOR: Well, Sean, if we're going to do this from the D.A.'s perspective, he's obviously going forward. I think, for many detectives on a police department, they wouldn't have presented this case to a district attorney. And if they did, they'd say, "At this time we need further investigation or we need to reject this," because this is not going forward anywhere. I mean, she cancels herself out every time she opens her mouth.

HANNITY: Yes.

Jill, listen, I've never seen a case like this.

JILL DAVIS, DEFENSE ATTORNEY: It's infuriating. I mean, I'm outraged. I cannot believe we are here. Why are we here?

HANNITY: Why are we here?

DAVIS: Why are we here?

HANNITY: This is getting to a point that, if the district attorney has no evidence here -- she's given multiple stories here. She said that there were three men, that there were multiple men, that there were 15 men, that a rape happened, rape didn't happen. And I'm thinking, "She's got to be a witness in this case."

DAVIS: This is going to play out, I guess, at trial, and then we're going to hear a not guilty.

HANNITY: All right. So then, for a whole year, people's lives are hanging in the balance...

DAVIS: Yep.

HANNITY: ... in a case that is basically unwinnable?

DAVIS: Yes, or maybe after the November elections.

HANNITY: Is that where we're going? Is this about politics? So then what you are describing, then, prosecutorial abuse. What can be done if this is the case and this is the information we have? What can be done, you know, to go beyond Nifong then in this case?

DAVIS: Well, he can be removed from office. I mean, certainly petitions can be had. I mean, the Carolina laws have, you know, methods of...

(CROSSTALK)

ALAN COLMES, CO-HOST: Why are were we even talking about removing him from office? Wait a minute. We're all here, Jill, because -- and welcome to New York, by the way.

DAVIS: Thank you.

COLMES: We're all here, Jill, because this should be heard in a court of law.

DAVIS: In the spring a year afterwards?

COLMES: And shouldn't this go through the legal process? It is not the D.A.'s decision exactly when to try it; it's how backed up the courts are.

And shouldn't this, like any other case, have a fair hearing in a court of law? Regardless of the outcome, shouldn't it go through a normal process?

FUHRMAN: Alan...

(CROSSTALK)

COLMES: Let me get Jill to respond and then to you, Mark.

FUHRMAN: I disagree.

DAVIS: And, yes, and the Duke lacrosse players also are entitled to a fair and a speedy trial. And a year from now...

COLMES: Right, in a court of law.

DAVIS: ... is not fair.

COLMES: In a court of law.

Mark, go ahead.

FUHRMAN: This isn't even a filable case, from what we know.

COLMES: How do you know that?

FUHRMAN: Well, from what Nifong has presented us, I mean, he has...

COLMES: But he's not trying it in the public, much as you like to accuse him of that. The defense team is. He is keeping his mouth shut at this point.

FUHRMAN: Alan, he shouldn't have been investigating this. This is up to the detectives. They should have been able to make an investigation, conduct an investigation, come with conclusions that are absolute, present it to the district attorney, so they could have a winnable case and move forward that way.

COLMES: You don't know that he doesn't have one. Mark, you're deciding ahead of time that, based on an investigation that you wish would take place, that maybe has taken place, it should not go to trial. Shouldn't there be a fair hearing in a court of law?

FUHRMAN: Alan, no, it shouldn't, because you don't waste anybody's time, the judge's, the jury's, or the people. You don't waste the money if you don't have a case that is actually winnable and actually truthful. Now, we don't know what the truth is. Alan, you pick now. You pick.

COLMES: That's why we have courts.

FUHRMAN: No, no, it isn't, Alan. You need to have something filed because you've proved you have a statement from a victim and you have some kind of evidence that corroborates that, whether it's a statement from the suspect, forensic evidence, or physical evidence.

COLMES: Megyn Kendall, if the D.A. came forward and said everything that he had, he would be once accused -- he'd be once again accused of what he was accused of doing earlier, trying this on the public sphere. He has been quiet, and now he's being ridiculed...

KENDALL: You're absolutely right.

COLMES: ... because it's claimed he's got nothing. We don't know what he's got.

KENDALL: Well, we don't know what he's got. The problem for Nifong - -and you're absolutely right. He can't, and he's not supposed to speak about this case, and so he's not. Having said that, he does appear to leak when he has certain things to say, because we've been the beneficiaries of those through other channels.

COLMES: Like the defense is doing.

KENDALL: Right. Exactly. But you're right.

(CROSSTALK)

KENDALL: He can't disclose his entire case file. The problem for him, Alan, is that the defense has disclosed enough that we know that there are so many holes in Nifong's case.

You know, I mean, even if he has, let's say, a Duke lacrosse player who's ready to roll -- and we don't have any reason to believe that's the case -- but even if he has that, there are so many problems.

Take the case against Evans that we just talked about. You know, the holes in the identification of her, enough to drive a truck through. So, unless he's got some incredible silver bullet -- he needs, you know, a gold bullet at this point to make his case.

COLMES: Well, he may be waiting for the proper venue to give us...

(CROSSTALK)

DAVIS: Or he's not that bright.

(CROSSTALK)

COLMES: Why do you want to attack -- you want to attack the guy first.

DAVIS: I'm looking for something, a silver bullet, a political reason, or he's just not that bright.

COLMES: He's already won. I mean, that's kind of a low blow, isn't it, about how bright he is? He's already won...

DAVIS: You don't think for one minute there might have been some political ambition on his part?

(CROSSTALK)

COLMES: Well, since he's already won that election, he's pretty much a shoo-in...

DAVIS: OK. And now that he's meeting with an NAACP, and civil rights groups, and victims' rights groups, you don't think he's getting pressure from the machine to go forward with this?

COLMES: Jill, as a defense attorney, I would presume you would take that position, which is the position the defense attorney is taking. Aren't they really trying to intimidate this woman to get her to back off so she doesn't go through with this case? Isn't that the tactic that you would do and the defense attorneys here are doing in this case?

DAVIS: I'm the one that said from the beginning, everybody just needs to be quiet. But it was Nifong from the beginning that started holding press conferences and telling...

(CROSSTALK)

COLMES: But he's not doing that anymore. Now it's the defense that's doing that.

DAVIS: And to level the playing field maybe a little bit.

COLMES: It's more than level, isn't it, at this point?

DAVIS: I'd keep going, too.

COLMES: Mark?

KENDALL: But keep in mind, Alan, keep in mind, Alan, this latest information is not a leak from the defense. It's a motion that they were entitled to file, saying, look, we want the rest of the evidence. We have reason to believe it hasn't been turned over. And in making that motion, they had to go through these facts, so that's not a leak.

HANNITY: All right. We got to take a break. We're going to pick up right here. But is this case now falling apart? Will it go away? Will it ever go to trial? We'll have more on that when we get back.

And still to come tonight, Congress clashes over the FBI's search of Congressman William Jefferson's office. And the White House pledges to reveal all the details of the investigation into what happened with the alleged killing of civilians by Marines. Are people rushing to judgment? Are they not giving the benefit of the doubt to the Marines?

And then Barry Bonds has passed Babe Ruth in home runs, but John Kasich says he's teaching America a very bad lesson.

And you won't believe why a Nebraska judge let this child sex predator not go to jail.

(NEWSBREAK)

(COMMERCIAL BREAK)

COLMES: Welcome back to "Hannity & Colmes." We continue now with FOX News' Megyn Kendall, former homicide detective Mark Fuhrman, and defense attorney Jill Davis.

Mark, as much as some people would love this to be over, maybe get this woman to back off -- and I keep talking about a fair trial, which I think everybody has got a right to, including the lacrosse players -- we have some information, for example, from the limo driver, the driver who took her there, who said -- a friend of hers who said that she was not intoxicated when she got there. The D.A. has hinted about a date rape drug. There's all kinds of questions we still need to answer, correct?

FUHRMAN: Well, we need to answer them, but you can't just say, "Perhaps a date-rape drug." What did toxicology say when the woman went to have the rape exam...

(CROSSTALK)

HANNITY: No tox report, Mark.

FUHRMAN: Yes, no tox report, so that's out the window.

(CROSSTALK)

COLMES: There was a report that took place in the hospital. They could still do a tox report, if they want, because they have blood. And there was a report done with a rape kit that apparently showed injuries consistent with sexual abuse.

FUHRMAN: Well, you know, Alan, I want you to think about the two statements. She makes one statement that she was groped; she makes another statement that nobody forced her to have sex. And I want you to think about that statement, nobody forced her...

COLMES: Don't you understand that -- you know that rape victims will often not have consistent stories, correct?

FUHRMAN: Alan, listen to what the victim said. "Nobody forced me to have sex." Now, that alludes to the fact that she had sex. With whom, I don't know, in what circumstance, I don't know, but didn't force. It sounds like she has an understanding that rape means sex by force or fear.

And then, all of a sudden, she was groped. She changes the story. And the problem here, Alan, is this wasn't investigated to the degree that it should have been. Now, even if you take a week to do a photo lineup, that's way too much time.

COLMES: All right. Let me go to Jill here, in terms of her story. We know that she's been consistent with medical authorities and she's had a different story with the police. And that is not unusual for a rape victim, is it not, to have one story to the police, another story to medical authorities?

Women are often a little hesitant at first to come forward and say they've been raped?

DAVIS: Alan, for every weak point you might try to make, I'll give you three better ones.

COLMES: Is that true or untrue? Is that true or untrue?

DAVIS: Consistent, inconsistent, I can't wait for her to take the stand. It's not going to work. It's a possibility that that could be, but there are so many other ones that are more credible.

HANNITY: Jill, this is your dream, if you're a defense attorney, because you're going to say, "Are you telling the truth now? Were you telling the truth then?" You said he groped you, didn't rape you. Then you denied that you were raped.

DAVIS: First it was 20 that raped me, then it was five, then it was three.

HANNITY: Then he had a moustache, then he didn't have a moustache.

DAVIS: ... have a moustache. And then the police officer that came up on the scene, the security guard, said that she was so intoxicated they had to use smelling salts to get her up...

(CROSSTALK)

HANNITY: And 40 players are going to say she was hammered when she walked in the door.

DAVIS: Right, but not the other girl, just the one.

HANNITY: Just the one.

Megyn Kendall, you're a lawyer. You know, "Were you telling the truth when you said there was no rape? Were you telling the truth when you said you were groped? Are you telling the truth when you said he had a moustache? What happened when you didn't identify the guy and now you do identify the guy?"

Show me where we get a conviction here, when a defense attorney has an opportunity to cross-examine this woman.

KENDALL: It's going to be bad, Sean. I can tell you, having cross- examined many people myself, CEOs of Fortune 100 companies, you get them in one inconsistency and you can make them look awful. That's what we lawyers do. That's why we get paid well, or at least I used to.

The problem with her is she has so many. It would be a defense attorney's dream. If I had to do this cross-examination, it would be brutal, as it will be with any defense lawyer making this cross-examination of her.

There is only so far that the "I was traumatized and I was confused" reaction by her will take her. Having said that, we don't know how compelling she's going to be. I have seen people who have given inconsistent testimony, persuade the jury the other way, notwithstanding their inconsistencies, but because they're so credible.

HANNITY: Megyn, but we have to get to the bottom line here: This is not about a contest to get re-elected. This is supposed to be about justice.

And I'm looking at the case. What we now know is so exculpatory, it is so compelling, we must ask the question why this case is even being brought forward, why these indictments are still standing, why there's not an effort here to say -- why isn't Nifong himself looking at this whole case and saying, "This is not going to fly in a court of law beyond any reasonable doubt by anybody's standard"?

KENDALL: Well, it is a little uncomfortable to have the scales so heavily weighted on one side and not at all on the other. I will say, although it's not appropriate for Nifong to leak, it is appropriate for him to respond in written motion form to the motions that have already been filed, so that would be an opportunity for him to present some of the facts that he's got.

(CROSSTALK)

COLMES: What we now know is based on what one side wants us to know.

(CROSSTALK)

HANNITY: That's what Nifong handed over, 1,300 pages.

COLMES: It's basically what the defense has decided to leak based on those 1,300 pages. We thank you all very much for being with us.

Coming up, Congress questions the search of William Jefferson's offices, but are they above the law? We'll debate if justice was served.

And then, what really happened at Haditha? Our military analyst will tell us if we'll ever get the Marines' side of the story, coming up.

(COMMERCIAL BREAK)

HANNITY: And welcome back the "Hannity & Colmes."

Today, the House Judiciary Committee held hearings on the search of Louisiana Congressman William Jefferson's Capitol Hill offices. Now, Jefferson was under investigation for taking money for brokering business deals in Africa when the FBI raided his offices overnight on Saturday, May the 20th, and many lawmakers say that their offices should be off-limits to the executive branch.

Joining us now, nationally syndicated radio talk show host Larry Elder and Democratic strategist Rich Masters.

Larry, let's just put more facts on the table here. We have considerable evidence of wrongdoing showing the congressman accepting $100,000 in bribes, including a videotape of him taking the money outside of a hotel; $90,000 of the $100,000 was in his freezer; him on tape making incriminating statements.

They sought a subpoena. They tried to go through the proper channels. They showed probable cause, they had judicial review, and they searched the office. What's the problem with that?

LARRY ELDER, ABC RADIO NETWORK: Well, Sean, let's not be too harsh. I mean, after all, Congressman Jefferson might have an aversion to earning interest. He may not trust banks.

I'm with you, Sean. I don't see any argument here that with the FBI did was wrong. They did videotape him accepting $100,000 grand. They did a search at his home, found $90,000 in his freezer.

I thought Congresspersons were not above the law, and it seems to me, with a warrant signed by a judge, the FBI did exactly what they should do, which is to investigate allegations of bribery. I don't get the constitutional crisis here; I really do.

HANNITY: Rich, I've got to tell you something. I think they did everything they could do to avoid a constitutional confrontation. There is not -- and I've spoken with a number of scholars -- there is no blanket immunity for congressmen under the Speech and Debate Clause.

In terms of separation of powers, they did issue a subpoena. He didn't comply. They've got all this compelling evidence against him. They had judicial review. What else do you want here?

RICH MASTERS, DEMOCRATIC STRATEGIST: Well, listen, I think -- I've got to be one of the most Americans scratching our heads. I mean, I think it's kind of loony.

I mean, the one thing that Congress agrees on for the first time in years is the fact we shouldn't go ahead and do this? So, I mean, I can't understand what all the big fuss is. I think, frankly, this is a reaction, finally, to the fact that, for the past five years, the Bush administration has...

(CROSSTALK)

HANNITY: I can care less about your anti-Bush line. That's not why we're here.

MASTERS: No, no, no...

HANNITY: Let me ask you this. Let me ask you on the political side of this. First of all, Howard Dean defended Mr. Jefferson. Nancy Pelosi wanted him to step down from his position on the committee, and then there was a powerful brush back from the Congressional Black Caucus on this. And she, according to reports, they made a deal with them.

Does that sound like she's got -- did she stand on principle or did she basically give into political pressure?

MASTERS: Listen, she specifically talked to him about the Ways and Means Committee. And, by the way, since you let Larry get his shot in, I hope Alan will let me get my shot in.

COLMES: Absolutely. Go right ahead. Go ahead. Do it.

ELDER: I didn't know I made a shot. I didn't know I made a shot.

COLMES: Go ahead, Rich. I mean, this is a unannounced political raid of a congressional office, Rich. They didn't go after Ney. They didn't do it to Ney's office. They didn't do it to Duke Cunningham's office. As soon as they did it -- and you got Pelosi and Hastert agreeing on this.

MASTERS: I know. I cannot understand this. I mean, this is, you know, one of the most baffling pars of this.

But I think you're exactly putting your finger right on it, Alan. I think this is exactly what Hastert and the Republican leadership is very afraid of. It's not just Ney. It's not Cunningham. There are at least half a dozen members, if you can believe the newspapers that are giving all of the Jefferson evidence, that are under investigation for serious crimes, and I think that's what Hastert and the Republican leadership is protecting.

COLMES: And the issue here, Larry, isn't whether Jefferson is innocent or guilty. We can debate that another night. The issue is whether or not there's overreach by the executive branch like they've done so many other times.

And what about the Speech and Debate Clause of the U.S. Constitution, which you would believe would ward off this kind of thing from happening?

ELDER: It has nothing whatever to do with this. As Sean pointed out, I too conducted interviews with a bunch of scholars and, to a person, they said it is unusual; it is unprecedented; but so is having $90,000 grand in a freezer unusual and unprecedented.

And, Alan, one other thing. During the impeachment business with Bill Clinton, Clinton argued that Paula Jones' civil lawsuit should not go forward because he was a sitting president and the allegation happened before he became president. The Supreme Court ruled unanimously, Alan, unanimously, that he was not above the law and the lawsuit should go forward. Why would Congressman Jefferson be above the law?

COLMES: I'm amazed that this all of a sudden has to do with Bill Clinton. Amazing to me.

HANNITY: All right, we've got to -- Larry, appreciate your time. Thanks, guys, for being with us. Appreciate you both being on board.

Coming up next, the investigation into the alleged killings of civilians by Marines in Haditha, Iraq, is under way. But will we ever hear the Marines' side of the story? Is there a rush to judgment? And why won't we at least give the Marines an opportunity to present their side?

And also, later, does our society reward cheating? And is Barry Bonds, well, Poster Child Number One for this? We'll check in with John Kasich tonight, straight ahead.

(COMMERCIAL BREAK)

(NEWSBREAK)

COLMES: Welcome back to "Hannity & Colmes."

The White House pledge today to make everything public everything learned during an investigation into reports that U.S. Marines may have killing two dozen Iraqi civilians in the city of Haditha last November. But has the media already condemned the Marines under investigation? When will we hear their side of the story?

Joining us now, FOX News military analyst and retired Marine Lieutenant Colonel Bill Cowan. Here in New York, former CIA operative Bob Baer, who spent a lot of time on the ground in Iraq. Bob is the author of the brand new book, just out today, "Blow the House Down".

Colonel Cowan, let me begin with you. You want to blame the media for this? This is not the media's issue. Isn't this something that should be investigated? The media's job is to uncover truth, right?

LT. COL. BILL COWAN (RET.), FOX NEWS MILITARY ANALYST: I don't think the media has gotten too far in front of it so far, Alan. I think they're kind of reporting what they're seeing. And in my judgment, and I've read an awful lot of the articles out there, it's relatively balanced.

I think the difference is John Murtha has gotten way out of there and gotten extremely emotional about it and putting the blame on the Marines.

COLMES: Where was he wrong? Where was Murtha wrong? Where was he wrong?

COWAN: Well, I don't think anybody should be talking about this in great levels of detail until, indeed, the investigation is done.

And I would add that this commandant of the Marine Corps, General Mike Hagee, is not a guy who's going to cut any corners on any of this. He's going to make sure that the investigation, wherever it's being done, is complete and comprehensive. And if action needs to be taken against some Marines, he'll make sure that that's done.

COLMES: Well, it turns out that Murtha was right, Bob. And it also turns out that it's not just about what might have happened in Haditha but the cover-up and the fact that the -- certain forces did not want us to know what was going on here. Right?

BOB BAER, AUTHOR, "BLOW THE HOUSE DOWN": Well, if this story turns out to be true, and we will acknowledge it if it's true, this is going to come out, this is going to hurt us major in Iraq, especially with the Sunni.

COLMES: Sure. Sure.

BAER: It's not the kind of story I'd want out there, you know, but...

COLMES: Do you think people have a right to know if this is going on?

BAER: We absolutely have a right to know. And I think it's -- you know, the fact that the United States can bring out a story like this and say we made a mistake or a couple guys made a mistake tells us that...

COLMES: But so far, that hasn't been said. What's happened so far is people like Murtha, who come forward and people who've actually come forward and say these kinds of things are, you know, they're raked over the coals, called all kinds of names. Murtha at one point called a coward on the floor of the House in a previous episode.

That's not the way it should be either. Shouldn't the truth be out there?

BAER: No, we should get the truth out there, and we should deal with it. I mean, this is our strong point in Iraq, is that we do have a free press and that we do bring out scandals and that we can -- we can discuss this logically.

COLMES: In 2004 supposedly, you told a reporter for The Weekly New Statesman regarding the way CIA deals with terrorist suspects that if you want them tortured sent them to Syria; if you want them to disappear, never to see them again, you send them to Egypt. Is that true?

BAER: I stand by that.

COLMES: Are we doing that?

BAER: I think we did. Absolutely. I mean, what do you do with these prisoners that you can't indict in the United States?

In 2001, we were under attack. The president said, "Do something." And, you know, we sent these people to Egypt. But there's nothing -- we send them to Egypt: don't torture these guys, please. But you can't trust Egyptians or the Syrians. We sent one of these guys to Syria, Zamar (ph).

HANNITY: Colonel Cowan, let me go back to you and let me get some facts on the table here.

Not one Marine has been charged with anything as of yet. We are now getting other information that, for example, that Brigadier General David Brahms, who was quoted as -- you know, as saying this is going to be worse than Abu Ghraib has said, "I'm sorry. Quotes attributed to me have been taken completely out of context, its meaning distorted. Many facts that are favorable to believe the Marines involved have not yet been disclosed in this particular case."

You know what's bothering me, Colonel? You know what? We're wrong on cases like Richard Jewell. We were dead wrong. Nobody thought we'd find Elizabeth Smart. We found her. We were wrong in that video that we had of the mosque where the Marine had to shoot and all these liberals politicized this war rushed to judgment.

COWAN: Right, right.

HANNITY: If anybody deserves a right to at least have their day in court, are we not going to give it to the Marines and not have people like John Murtha politicizing this war and accusing these guys of killing civilians in cold blood? Could we at least give this to the Marines that are risking their lives for us?

COWAN: We should, Sean. You know, John Murtha and John Warner, who's a U.S. senator, both of them former Marines, were both briefed on where these investigations are right now.

Senator Warner came out very carefully, very casually said this doesn't look good but we'll let the investigation continue, and we'll get the results when it's done.

In contrast, Senator -- John Murtha, Congressman Murtha, who I saw about an hour ago live on another news network, was extremely emotional about it to the point that he was really almost losing control. And, indeed, condemning and convicting these young Marines.

I expect, Sean, at the end of the day...

HANNITY: Yes.

COWAN: ... we may find that some incident happened over there, but we will certainly also find that every Marine who was there did not participate in this, that anyone who was there, most of them did not want this to happen, and many of them reported it to their superiors.

HANNITY: Well, here's the problem, Bob, that I have. He said, quote, "They killed innocent civilians in cold blood."

We had John Kerry saying that our soldiers are going into the homes of Iraqis in the dark of night and terrorizing women and children. And similar comments such as this.

Do you remember the name Ilario Pantano?

BAER: I do absolutely.

HANNITY: A year ago, Bob, Ilario Pantano was charged with two counts of premeditated murder and other war crimes related to his service in Iraq. And he and -- he wrote this piece in the Washington Post. They painted him as he said as a monster, until an autopsy blew away this case out of the water and the Marine Corps dropped all charges against him.

You know, I don't know what evidence they have now, but nobody's been charged, and we don't know the facts. Is it not unfair for an American congressman to go out and say that these guys are killing innocent civilians like this in cold blood?

BAER: Oh, no doubt about it. And we've taken these troops and put them in the most dangerous part of the world ever, in years and years, in Anbar Province. And we have to find out what happened. Especially these guys...

HANNITY: Well, we do know one thing that happened. We do know that a bomb went off just seconds before. We do know that. We know Marines were killed then and Marines were injured there, didn't we? We do know that they were trying to find the people responsible.

And it angers me to some level to think that people can sit in their comfortable offices in Washington or in a studio without the facts and adjudicate this case like this.

BAER: I agree with you. But what intelligence did they have? Maybe somebody pointed this house out, and they kicked the door down and it was dark? You just don't know. And I agree with you. You've just got to wait. These guys...

HANNITY: They deserve the benefit of the doubt, don't they? Before some congressman for political gain, you know...

BAER: Well, it's Washington. Come on. These guys...

HANNITY: It's Washington? These are soldiers risking their lives. These are soldiers.

COLMES: By the way, John Klein, a Minnesota Republican, very much the same thing Murtha said.

HANNITY: They deserve their day in court.

BAER: These guys...

(CROSSTALK)

COLMES: Thank you very much for being with us. Lieutenant Cowan, we thank you.

We check with Greta Van Susteren, standing by with a look at what's coming up right after "Hannity & Colmes" at 10 Eastern -- Greta.

GRETA VAN SUSTEREN, HOST, "ON THE RECORD": Alan, a terrible crime at a university town tonight. We'll talk about that,

Plus, we took our cameras to Natalee Holloway's home in Alabama. It's the one-year anniversary of her disappearance.

And Dan Aykroyd is here to talk about UFO's. That and much more. Back to you.

COLMES: Be sure to watch "On the Record", right after "Hannity & Colmes".

Coming up next, Barry Bonds passes the Babe, but do we reward cheating by taking note? John Kasich will be here to debate that.

And then he's convicted of sexual assault of a child, but the judge orders no prison time. You're not going to believe the reason. We'll have that coming up on "Hannity & Colmes".

(COMMERCIAL BREAK)

HANNITY: Welcome back to "Hannity & Colmes".

Coming up next, you won't believe why a judge let this sex offender out on the streets.

But first Barry Bonds passed Babe Ruth this past Saturday to become the second-best home run hitter in baseball history beyond Hank Aaron. So with allegations of steroid abuse still surrounding Bonds, does this record show that cheaters really do get ahead?

Joining us is the author of a terrific new book, "Stand for Something: The Battle for America's Soul", and the host of "Heartland" right here on the FOX News Channel. John Kasich is with us.

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