updated 5/16/2006 12:47:45 PM ET 2006-05-16T16:47:45

Guests: Wendy Murphy, Yale Galanter, Henry Lee, Jamie Skeeters, Joe Arpaio, Theodore Olson, Tericka Dye, Mark Blankenship

RITA COSBY, MSNBC ANCHOR:  Hey, Joe, good evening, everybody.  A major development tonight in the Duke rape investigation.  Hours ago, the district attorney indicted third player in a bold and stunning move.  That player, 23-year-old Dave Evans spoke to the press, vehemently defending himself and also, the lacrosse team. 

(BEGIN VIDEO CLIP)

DAVE EVANS, INDICTED LACROSSE PLAYER:  I want to say that I‘m absolutely innocent of all of the charges that have been brought against me, that Reade Seligmann and Collin Finnerty are innocent of all the charges that were brought against them.  These allegations are lies.  Fabricated and they will be proven wrong. 

If I could go back to two months ago when the police came to my home, I fully cooperated and have continued to try to cooperate with them.  When they entered in and started to read the search warrant, my roommates and I helped them find evidence for almost an hour and told them if they had any questions we would gladly answer them to show nothing happened that night. 

After that, I went down to the police station and I gave an uncounseled statement because I knew that I had done nothing wrong and I didn‘t feel I needed an attorney. 

After going through photos of my teammates and identifying who was there, I then submitted perfectly willingly DNA samples to the police.  I then turned over the email account.  My AIM account, any kind of information that they could have to show that I had not communicated in any way that anything happened because it did not happen. 

After that, I asked to take a polygraph which was refused by the Durham Police Department.  Over the past several weeks, I‘ve repeatedly, through my lawyer, tried to attempt, tried to contact the district attorney.  All of my attempts have been denied, I‘ve tried to provide him with exculpatory evidence showing this could not have happened. 

Those attempts have been denied and as a result of his apparent lack of interest in my story, the true story and any evidence proving that my story is correct, I asked my lawyer to give me a polygraph.  I took that polygraph and it was administered by a former FBI top polygrapher with over 28 years of experience. 

He‘s done several hundred sexual cases and I passed it absolutely.  I passed that polygraph for the same reason that I‘m going to be acquitted of all of the charges.  Because I‘ve done nothing wrong.  I told the truth from day one and I‘m telling the truth. 

I would like to say thank you to my friends, family, my coach and members of the community who have stood by us through everything from the initial weeks to now.  Their support has given me strength to come through this.  But the thing that gives me the most strength is knowing that I have the truth behind me and it will not phase me. 

If I can close, I‘ve always taken pride in my name.  I take pride in my name today and gladly stand up to anything against me.  I‘ve never had my character questioned before.  Anybody that knows my character knows this didn‘t happen.  I appreciate your support.  As for my teammates, I love you all.  I have never, the honor of being voted captain of all of you, 46 best guys you could ever meet, it‘s been the greatest honor of my life. 

And if I can clear things up and say one more time.  I‘m innocent.  Reade Seligmann is innocent.  Colin Finnerty is innocent.  Every member of the Duke University lacrosse team is innocent.  You have all been told some fantastic lies.  I look forward to watching them unravel in the weeks to come as they already have in weeks past.  The truth will come out. 

(END VIDEO CLIP)

COSBY:  Dave Evans today.  Meantime my old pal NBC‘s Chris Clackum has been on the ground all day long following the big developments.  How unexpected was this on the part of Dave Evans and the defense team to do this. 

CHRIS CLACKUM, NBC NEWS:  Absolutely, Rita.  Very unexpected.  You have covered cased like this before.  And you know, first advice that the defense attorney is going to give a client is first off, keep your mouth shut. 

This was extraordinary for this man, a 23-year-old from Bethesda  Maryland, to come out and essentially act as his own best witness right now in his own defense.  You know, a senior on the Duke lacrosse team who is saying, not only is he innocent of the charges against him, but the two other players have been indicted along with him are also innocent.  And he says, basically, he can‘t wait for the trial to prove that point. 

COSBY:  Chris, run us through the charges now against this guy, Dave Evans.  

I hear there‘s a train in the background, but run us through the charges against Dave Evans. 

CLACKUM:  Ok.  Go right ahead.  All right.  It‘s going to be the first degree forcible rape, Rita.  The second charge is going to be first degree sexual offense.  And the third charge, first degree kidnapping.  All of them, extremely serious charges that could land anybody, including these three, if found guilty in jail for an awful long time. 

COSBY:  OK.  Thank you.  Keep us posted for anything else that‘s happening there.  Let‘s bring in our legal expert, former sex crimes prosecutor Wendy Murphy and criminal defense attorney Yale Galanter.  Let‘s start with Wendy.  What did you think of them being out there?  

WENDY MURPHY, FORMER SEX CRIMES PROSECUTOR:  It was not a surprise to me.  We saw it with Michael Jackson, with O.J., Scott Peterson and if I had a dime for every defendant who is guilty but claims he‘s innocent with such vigor at the outset of the case, I‘d be very wealthy. 

He didn‘t take questions.  He is not subject to cross-examination.  He had no explanation for his DNA being under the victim‘s fingernails.  He had no explanation for why he booked it out of his own home that night.  The house was empty, remember, when the police gets there, he‘s out of the way.  And there‘s no reason for him to flee. 

COSBY:  Pretty powerful.  

YALE GALANTER, CRIMINAL DEFENSE ATTORNEY:  I thought the statement was bold, forthright and it really is very rare in today‘s system that a defendant bangs on a prosecutors door and says let me show you the evidence.  It is very rare where a criminal defendant, a target, and Mr.  Evans has known he has been a target for three or four weeks goes out to a polygraph examiner and offers to give it to the DA. 

What‘s even more rare, Rita, a district attorney who absolutely does not take the defense lawyers phone calls, doesn‘t open the door to the defense and doesn‘t even sit down and talk to them.  That‘s why this case is in trouble. 

COSBY:  Hold on just one second.  I‘ll let you respond really quick. 

MURPHY:  Quickly, look, March 22nd, all of the defendants were supposed to show up, all of the players, to show up with a meeting of Nifong and two hours they called and canceled, lawyerd up, took the fifth.  Get over it.  Blaming the DA for letting them in. 

(CROSSTALK)

COSBY:  Stop one second.  We‘ll talk about the polygraph in a little bit.  I spoke exclusively to the rape accuser‘s father right before the show.  He had an interesting reaction when I asked him what he thought about now indicted player Dave Evans speaking out so publicly before the cameras today.  His reaction was interesting. 

I asked him if he was surprised.  And we were talking about the words, sort of bold, powerful statements.  And one of the things that he talked about was that he was sad.  Let‘s take a look at what the father had to say. 

(BEGIN VIDEO CLIP)

ACCUSER‘S FATHER:  Well I was sad. 

COSBY:  Why were you is a sad after hearing him talk do you believe he‘s innocent? 

ACCUSERS FATHER:  No, no.  There‘s too many things that I knew happened. 

COSBY:  You still believed that this young man is guilty and the other two are guilty of raping your daughter? 

ACCUSERS FATHER:  Yes, I sure do. 

COSBY:  Why are you so sure of that? 

ACCUSERS FATHER:  Because the bruises on her, her face and the cuts on her arms.  And plus, it was just so many things that she told me went on in the house, told me that you know, I‘m sure that it happened. 

COSBY:  The player, Dave Evans, said today that he and the other boys are innocent and this is all based on, quote, fantastic lies.  What‘s your reaction when you hear that? 

ACCUSERS FATHER:  I don‘t know.  I was angry to hear him saying that after they found this stuff up under her nails in the trash can. 

COSBY:  What do you think about him? 

ACCUSERS FATHER:  I wonder why he‘s coming forward now and speaking if he was innocent.

COSBY:  Is your daughter sure that these are the three men. 

ACCUSERS FATHER:  I think she is sure.

COSBY:  But, is it possible that her own boyfriend may have done something terrible to her. 

ACCUSERS FATHER:  No, never have.  He would never hurt her. 

COSBY:  Where is your daughter these days? 

ACCUSERS FATHER:  I learned that she‘s under protective care.

COSBY:  How is your daughter doing. 

ACCUSERS FATHER:  She had lost a lot of weight.  I think she told me that she was seeing a counselor now. 

COSBY:  OK.  Is there any doubt in your mind now as to whether or not she might drop out.

ACCUSERS FATHER:  As of today, I don‘t think she will.

(BEGIN VIDEO CLIP)

COSBY:  You heard him, he said she‘s going forward.  What is your reaction?

GALANTER:  I just don‘t see it, Rita.  This woman, during the photographing line up, shows uncertainty.  She identifies David Evans as the guy with the moustache.  We know for a fact that Mr. Evans, since the day he was born,  has never had a moustache.  So I think Mr. Nifong must be looking for the Groucho Marx costume tonight because she just picked the wrong boy again, another innocent boy has been wrongly indicted by this grand jury in Durham.

COSBY:  You know, Wendy, let me bring in—because I think Yale does have an interesting point.  The moustache thing, this guy has never had a moustache—doesn‘t that hurt a lot of her credibility.

MURPHY:  No, no.  And I‘ve seen a lot of these, moustache hairy-faced I.D. issues evolve when the crime happens late at night.  The guy is a hairy, dark-haired guy.

COSBY:  What do you think, that he had a shadow maybe?

MURPHY:  He might have had a shadow.  He might have had a shadow. 

I‘ll tell you what will be the most telling thing.

(CROSSTALK)

MURPHY:  Excuse me.

GALANTER:  Mistake a shadow for a moustache.

MURPHY:  You get a gang raped and see if you get it all straight.

GALANTER:  How is that even possible, Wendy?

COSBY:  Let me get Wendy to go.  Go ahead, Wendy.

MURPHY:  The most telling fact, in terms of whether it‘s true that this all a big hoax, will be whether the defense attorneys get around to filing a speedy trial motion.  That‘s what truly innocent defendants do when they‘ve got nothing to hide, they file speedy trial motions.  I haven‘t seen one yet, Yale.

COSBY:  Let me get Yale to respond.

GALANTER:  Wendy, there‘s a problem with that.

COSBY:  Yale, you‘ve got five seconds.

GALANTER:  In North Carolina, abolished the speedy trial act.  The defense lawyers don‘t even have the opportunity to file a demand for speedy trial in North Carolina.

MURPHY:  Of course they do, absolutely they do.

GALANTER:  No, they to don‘t.

COSBY:  You guys, we‘ve got to take a break.  We have to take break, both of you.  We‘re going to continue after the break.  And everybody, Dave Evans says he has taken a lie detector test.  You heard Yale talk about that.  And also he says he‘s passed.  So is there any way to fool the test?  That‘s coming up and that‘s not all.  Plus, a special look at the other big story of the day, the battle over the border.

Still ahead, President Bush says the border is out of control and the National Guard needs to take charge.  Tonight, our LIVE & DIRECT  investigation takes you to the front line.  Wait until you see just how much people try to sneak across every day.

And if you thought it was the end of the road for Kennedy cousin Michael Skakel, think again.  His brand-new big name lawyer explains to me why he‘s hoping to get the convicted killer another chance. 

And talk about your past coming back to haunt you.  A teacher fired for a starring role in an X-rated film tells me why she‘s suing the school that fired her.  Coming up LIVE & DIRECT.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

EVANS:  I am innocent.  Reade Seligmann is innocent.  Colin Finnerty is innocent.  Every member of the Duke University lacrosse team is innocent.  You have been all been told some fantastic lies.

(END VIDEO CLIP)

COSBY:  That‘s Duke lacrosse player Dave Evans a few hours ago, blasting the charges brought up against him in the rape scandal.  Evans is the third player to be charged in the case, but defense attorneys are adamant that all the players are innocent.

(BEGIN VIDEO CLIP)

JOE CHESHIRE, ATTORNEY FOR DAVE EVANS:  The DNA is now back a second time and it does not match any of the lacrosse players.  In fact, the only single source male DNA shows that it was someone other than a Duke lacrosse player.

(END VIDEO CLIP)

COSBY:  And Dr. Henry Lee is a professor of forensic science at the University of New Haven in Connecticut and a world-renowned forensic expert.  He is also the author of a brand-new book called” Forensic Files.”  And he joins me now.

Dr. Lee, you know, you‘re hearing from the defense that the DNA is really only linking what was found inside of her to her boyfriend.  Is there a way that that could be tied in or would be common—that of course she‘s dating the guy, she‘s living with the guy?

DR. HENRY LEE, FORENSIC EXPERT:  Sure, of course.  The DNA found in the vaginal swab shows it was the boyfriend, which if the prosecution probably used that saying they wore a condom and that‘s why it has no semen, no DNA.

But meanwhile, the fake fingernail found in the garbage can—they found some DNA, apparently it was some tissue on the fingernail which does not conclusively say matched third individual.

But however, says partial profile match.  Usually, at the laboratory, currently, we do STR procedure.  For example, A, B, C, D, E, F, G, 13 of that and they match portion of that.  Maybe match A, match to B, match to B, but not 13.  So it‘s a partial-profile match.  We used to—accuser, the witness I.D., say 90 percent certain.  Now it becomes—some saying it‘s crucial evidence now.

COSBY:  Yes, you bet.  In fact Dr. Lee, let me play—this is a little clip also from the press conference where they talked specifically about what you‘re talking about, the fingernail, the DNA around the fingernail.

LEE:  Yes.

(BEGIN VIDEO CLIP)

CHESHIRE:  They are unable to exclude a match on one plastic fingernail, exclude a match, on one plastic fingernail in the trash can which contained numerous items, as we will show you of Dave Evans‘ DNA that they cannot say absolutely that it wasn‘t Dave Evans.

(END VIDEO CLIP)

COSBY:  You know, Dr. Lee, again, this guy, this was his house.  It was found in a garbage can in his house.  Does that also obviously help him?  Because it could have been mixed up with a lot of his stuff.

LEE:  Of course.  The defense should utilize this situation.  That‘s his house, that‘s his garbage can.  So his biological material obviously going to be there.

COSBY:  So how does the prosecution then prove that it came from some sort of sexual assault versus everyday just common items in his house?

LEE:  Exactly.  That‘s a good point, Rita.  Prosecution has to say fingernail.  And that piece of material, it‘s stuck under the fingernail, it‘s not due to the secondary transfer.  Of course, going to be something, a pissing contest in the courtroom.  How to convince the jury?  Both sides going to have to face the DNA match and the prosecution definitely going to say that‘s a sign of assault.  Defense definitely say, that‘s a secondary transfer. 

COSBY:  You bet.  Well Dr. Lee, thank you.  Probably the best in the business, we appreciate you being with us tonight.

And let me now bring in polygraph expert Jamie Skeeters.  Jamie, first let me play a little clip, a little bit more from Dave Evans in the press conference talking about a polygraph.

(BEGIN VIDEO CLIP)

EVANS:  I asked my lawyer to give me a polygraph.  I took that polygraph and it was administered by a former FBI, top polygrapher, with over 28 years of experience.  He has done several hundreds of sexual cases, and I passed it absolutely.

(END VIDEO CLIP)

COSBY:  So Jamie is it possible to fool a polygraph?

JAMIE SKEETERS, POLYGRAPH EXPERT:  Can you beat a polygraph? 

COSBY:  Yes.

SKEETERS:  I‘ll answer that but let me qualify the answer.  The word is absolutely. 

COSBY:  And how? 

SKEETERS:  Well, however, it depends on several things.  It depends on the instrument, the examiner, the questions, and of course, the examinee.  Now, I did hear Mr. Evans say that there was a former FBI agent. 

COSBY:  Yes, and in fact, Jamie, he said something—I thought he said like somebody with like 28 years experience.  It sounds like somebody pretty qualified. 

SKEETERS:  Well, I think I know who he‘s talking about.  But it doesn‘t matter who it is.  The FBI, they have the best polygraph school in the world, dog pie, Department of Defense Polygraph.  I have yet to see an examiner that‘s qualified, especially by the FBI or the NSA or even CIA, they know what they are doing. 

COSBY:  Now, how different, Jamie, a private test versus—and again, he says that he went to the Durham police.  They turned him down he says.  But then they did a private.  First, do you believe him that the police turned him down?  And second how different is a private real quick? 

SKEETERS:  Well, very quickly there—sooner or later, everybody will be a private examiner.  When they retire they go into it.  It depends on the training of the examiner.  If the examiner is qualified, licensed, certified, up to date on his or her training, they are going to give you a pretty good answer to the polygraph.  If you get a prostitute in there, someone who is not qualified, hasn‘t kept up their training, that‘s when you put your tongue in cheek, roll an eyebrow up and run out of the room. 

But the FBI, they are very good.  Privates are very good.  State are very good.  I would like to see that examiner send his charts to either Skip Webb or T.V. O‘Malley from the American Polygraph Association for quality control.  But you can beat a polygraph, but with the FBI behind the instrument, I would say it was a good call by the FBI.

COSBY:  All right Jamie, thank you very much for your perspective.  We appreciate it. 

And let‘s now go back to our legal panel, former sex crimes prosecutor Wendy Murphy and also criminal defense attorney Yale Galanter. 

First of all, Yale, is it true that he went to the Durham police? 

They turned him down and why do you think they did? 

GALANTER:  He and his lawyers did go to the Durham Police Department.  And Rita, I can‘t answer your question why.  When I was a prosecutor, I used to love it when defense lawyers and defendants would come in and want to take polygraphs and discuss their case.  Because it would give me one up. 

Not only would it give me one up, but under the rules, if a defendant made a statement to a law enforcement officer and then takes the witness stand, that‘s called a prior inconsistent statement.  It would give me ammunition to cross examine them.  You know Dave Evans is going to take the witness stand.  He is going to get up.  He is going to say he‘s innocent, his teammates are innocent.  Mr. Finnerty and Mr. Seligmann are innocent. 

Why Mr. Nifong and his investigators didn‘t welcome this opportunity is absolutely beyond me. 

COSBY:  Wendy, why not?  And is that standard procedure? 

MURPHY:  Of course it is.  I mean, they are absolutely inadmissible for all of the reasons we just heard from Mr. Skeeters.  They are easy to win.  When you are the defendant and you are lying, you can figure out how to trick these things very easily.

And I will tell you, I‘m not going to buy into any of this nonsense about how good the ex-FBI guy is until I see the test because it depends how you ask the questions. 

GALANTER:  Actually, Wendy, that is not accurate...

MURPHY:  Excuse me, it depends how you ask questions.

GALANTER:  When I was a prosecutor I used to make the defense stipulate to the results and then he‘d admit it. 

MURPHY:  Some ex-FBI guys are just hired guns for the defense.  So let‘s not go crazy on just because he went to the FBI, he‘s a good guy.  I want to see the polygraph results myself before I accept them.  And can could be a good instrument, but it is not necessarily. 

I want to see the two DNA reports.  I‘m sick of having defense attorneys hold dog and pony show press conferences, telling us what in the report.  And then when the media representative says, can we just see the report ourselves rather than you characterizing it and spinning it?  And what have they said both times?  No, we couldn‘t give you that. 

(CROSSTALK)

COSBY:  Let me bring in Yale.  Real quickly Yale.  I am going to give you the last word.  Go ahead you have got a few seconds. 

GALANTER:  Rita, this case from the beginning has revolved around the credibility of the complaining witness.  The complaining witness‘s own father called her a liar in the 1996 incident.  This complaining witness, who is the father says was bruised, cut.  The first police officer...

COSBY:  Actually, Yale...

(CROSSTALK)

COSBY:  Yale, I have got to correct you.  I spoke to the father.  He said he didn‘t know about it and he found out about it later.

GALANTER:  No, he said she didn‘t have sex with the boy, and she wasn‘t assaulted.  And basically called the report a complete hoax.

COSBY:  Yale, that‘s not true.  Yale, that‘s not true.

GALANTER:  The first police officer on the scene does not see any bruises, marks on her body.

MURPHY:  Yale stop talking.  You are making a false statement.

GALANTER:  Her credibility is an issue.

COSBY:  Yale, that is not true.  Yale, you got to listen.  What he said is he did not know about it until later.  It does bring up questions, but he said he did not know about it until.

GALANTER:  He stated in an “Essence Magazine” article, Rita, that he was not aware that she was sexually assaulted.

COSBY:  Which is different than calling her a liar.

Both of you thank you.  Everybody we are going to follow this case through and through.  And both of you, thank you very much.  Feisty debate.  Lots more ahead everybody.

Still ahead, a teacher gets fired after her porno past is uncovered.  But now she‘s tells me why she‘s suing the school.  Should she keep her job?

And next, another feisty topic.  LIVE AND DIRECT is going to take you right to the border.  You will see people actually sneaking into the U.S.  and how tough it is to stop them.  Our special investigation is coming up next. 

(COMMERCIAL BREAK) 

COSBY:  And just a short time ago, President Bush addressed the nation, promising to beef up security at our borders.  In a rare prime time speech, the president says he plans to spend up to $2 billion to stop the flow of illegal immigrants.  That includes sending 6,000 national guard troops to keep the border safe.

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  It is important for Americans to know that we have enough guards forces to win the war on terror, to respond to natural disasters and to help secure our border.  The United States is not going to militarize the southern border.  Mexico is our neighbor and our friend. 

We will continue to work cooperatively to improve security on both sides of the border, to confront common problems like drug trafficking and crime, and to reduce illegal immigration.

(END VIDEO CLIP)

COSBY:  And LIVE & DIRECT went to some of the most treacherous spots along the Arizona-Mexico border to see firsthand how difficult it is for agents there to stop illegal immigrants from sneaking into our country.   

(BEGIN VIDEOTAPE)

COSBY:  Graphic images of stone-throwing youth, runaway vehicles crashing head on into police.  Think you are in the West Bank or Gaza Strip?  This is right here at home, the 24/seven barrage of foreign migrants, drug smugglers, and bandits crossing illegally on to U.S. soil along the Mexico-Arizona border, often going to very dangerous lengths to make the trek. 

ROY VILLAREAL, ASSISTANT CHIEF PATROL AGENT:  As we have gained operational control, the level of violence directed our—at our agents has increased.  Smugglers are becoming frustrated.  As we‘re able to—to shut off their entry points, causing them to react to our enforcement strategy, they have reacted with violence.

This includes shooting at our officers, throwing rocks at our officers, driving their vehicles and ramming into our officers. 

UNIDENTIFIED MALE:  What we‘re seeing right now is, we‘re averaging between 400 and 600, sometimes 800 apprehensions per day.  You can see numerous subjects in here waiting to be processed, fingerprinted, so that they can be either returned to Mexico or identified as criminal aliens and set up for prosecution. 

COSBY:  On this busy day, it‘s not only young men being apprehended, but young children, women, and entire families.  Most jumped the border fence in search of a better life. 

UNIDENTIFIED MALE:  Hey.  (SPEAKING SPANISH)  Let‘s go.

UNIDENTIFIED MALE:  He obviously went in the (AUDIO GAP) You see them going in the water right there?  A group is going into the water right now between the riprap and that next agent that was further north. 

UNIDENTIFIED MALE:  Hey.  (SPEAKING SPANISH)

VILLAREAL:  We have encountered and arrested people from throughout the world.  That includes folks from China, from Iraq, the former Soviet Union, Brazil, Central America. 

UNIDENTIFIED MALE:  (SPEAKING SPANISH)  Hey.  (SPEAKING SPANISH) 

Let‘s go.

Sixteen.  We got 16.  So, 17.  That should be all of them. 

I got bodies.  Hey, guy, over here. 

UNIDENTIFIED MALE:  Huh?

UNIDENTIFIED MALE:  I got bodies.  (SPEAKING SPANISH) 

We got this group of five, 10, 15. 

UNIDENTIFIED MALE:  (SPEAKING SPANISH)

VILLAREAL:  Smuggling and people attempting to enter the United States touches every aspect of—of the globe. 

UNIDENTIFIED MALE:  We have to be real careful about subjects who are going to run or resist or—or possibly make a run for it back to—back to Mexico.  But we did pat them down for weapons. 

(END VIDEOTAPE)

COSBY:  And, again, the president tonight says that 6,000 National Guard troops will be heading to our borders. 

Joining us now to talk about the president‘s speech Sheriff Joe Arpaio of the Maricopa County Police Department in Arizona, and also retired Army General Barry McCaffrey, who is also an MSNBC analyst. 

Sheriff, I want to start with you, because I first want to show you what the president had to say.  This is what he had to say just a short bit ago. 

(BEGIN VIDEO CLIP)

BUSH:  The men and women of our Border Patrol are doing a fine job in difficult circumstances.  And, over the past five years, they have apprehended and sent home about 6 million people entering America illegally.

Despite this progress, we do not yet have full control of the border, and I am determined to change that. 

(END VIDEO CLIP)

COSBY:  So, Sheriff, is the military the solution? 

JOE ARPAIO, MARICOPA COUNTY, ARIZONA, SHERIFF:  Well, it‘s in a support role.  I agree with that. 

By the way, let me just say this.  We have a new state law.  I‘m the only one enforcing that law, and locking up the illegals, along with the smugglers. 

COSBY:  Yes.  And, in fact, you are going after a conspiracy, right?  Right, tell—you—you are finding them under the conspiracy law, right, Sheriff? 

ARPAIO:  That‘s right.  And they are going to jail. 

We do have a federal law that is never enforced, six months in jail. 

So, I believe they should start enforcing the federal law. 

COSBY:  Let me bring in General McCaffrey, as you turn off, I think it‘s your cell phone there in the background. 

General McCaffrey, real quick, do you believe military is the solution? 

GENERAL BARRY MCCAFFREY (RET.), NBC MILITARY ANALYST:  No.

I think—by the way, I thought the president‘s speech was absolutely superb.  It‘s the first time I have heard an official talk about immigration reform, guest-worker programs, and law enforcement on the border. 

COSBY:  But you don‘t think military troops are the solution.  Why not? 

MCCAFFREY:  Well, I think, in the short run, having 6,000 National Guard is a drop in the bucket.  It will help the Border Patrol.

We have always had the National Guard under state authority, trying to support law enforcement along that border.  But the—Senator Chuck Hagel‘s bill to double the size of the Border Patrol is the real answer. 

Ten thousand Border Patrol now—personally, I think there ought to be 45,000 Border Patrol agents, plus fencing, plus low-light TV.  We absolutely have to stop illegal migration, but, then, also allow a guest-worker program to work. 

COSBY:  Let—let me show—because, in fact, there‘s a few hundred National Guard on the—on the border right now, very little.  In fact, let me put up the statistics. 

California, there is only 150, in Arizona, 100, New Mexico 70, and Texas, 230.  And, then, let‘s go back to the graphic after this one.  This is the other one about the total National Guard troops, the one that we put up at first: 444,000 total National Guard troops, 71,000 in Iraq and Afghanistan. 

General, are we spread too thin?  Like you said, should we be using the National Guard?  You—talking about the Border Patrol?

MCCAFFREY:  Well, I think the National Guard clearly is overstretched. 

I mean, they have supplied as much as 40 percent of the combat power in Iraq and Afghanistan.  These are tremendous troops.  I actually don‘t think, though, 6,000 is much of a stress on them.

They will probably be volunteers.  I would guess they would be under the authority of the four border state governors.  So, they will actually not be under so-called Title 10 authority.  They will have—be able to carry out law enforcement duties, under the governor‘s orders. 

COSBY:  And, of course, the president said most of the duties are going to be surveillance. 

You know, Sheriff, is it time to get tough at the borders and finally say, look, we got to do something; we got to put up some sort of a military presence? 

ARPAIO:  Yes. 

I was head of the federal drug enforcement in Mexico, South America.  Here we are, 20 years later.  And we have—we still have a problem on smuggling across our borders.  I don‘t think that the tanks and the machine guns should be down there.  But I do believe that the National Guard, in a support function, is OK. 

COSBY:  You do?  Now, is it enough?  Because you heard from General McCaffrey?  What about the Border Patrol?  What about 45,000 Border Patrol agents?  Is that a stronger signal?

ARPAIO:  Well, let‘s build up the Border Patrol.  They‘re the professionals.  And let‘s put the people in jail that cross the border and violate the federal law.  That‘s not being done. 

COSBY:  All right, McCaffrey, General McCaffrey, what about sending the signal of, like, are we turning it into a militarized state?  Does that make the border so much more contentious and so much more volatile than maybe just the friction between both sides? 

MCCAFFREY:  Well, of course, we have always had—by the way, I think those numbers are probably deceptively small. 

On a given day a few years ago, we would have as many as 5,000 National Guard or active sources supporting law enforcement somewhere in the United States, not just on the border, engineer National Guard battalions building fencing along the border, that sort of thing.  So...

COSBY:  But, General, is there a concern that now putting this obvious presence, with the president announcing it in such, you know, a very public address, does it create more tensions, more pressure at the border?

MCCAFFREY:  Well, the pressures at the border, Rita, -- clearly are a million people a year coming across, trashing farms, shooting at the Border Patrol officers, to include with automatic weapons, run—trying to run them over with cars. 

We do have to control our own ports of entry.  That‘s what a civilized

nation does.  We should do it in cooperation with the Mexican law

enforcement.  We need fencing, not just more bodies.  But, yes, I think we

we have got to get cracked down on it, and, at the same time, recognize, for gosh sakes, our agricultural system works based on Mexican and Central American labor, along with construction, meat packing, etcetera.

They have got to be able to come in where there are jobs that need to be done. 

COSBY:  Absolutely.  There has got to be a fine balance. 

Real quick, Sheriff, you need that fine balance.  But, also, is it time to get tough? 

ARPAIO:  Yes, it is.  And I‘m doing it.  I‘m the only one enforcing the state law in Arizona right now. 

COSBY:  All right.  Well, both of you, thank you very much.  We appreciate it. 

And, of course, there‘s going to be a lot more.  I understand the president is going to be near the border later on in the week. 

Both of you, thank you very much.

And I‘m sure there‘s going to be a lot more about this on Tucker, who is coming up on “THE SITUATION” in just a few moments from now.

Tucker, what do you have in store?

TUCKER CARLSON, HOST, “THE SITUATION WITH TUCKER CARLSON”:  That‘s right, Rita.

Does the president‘s plan to seal the borders really have any teeth?  Is it as tough as it sounds?  If Tom Tancredo, congressman from Colorado, thinks so, you know it does.  We‘re going to talk to him. 

Plus, off-color jokes can be offensive.  That‘s the point.  But should the government get involved?  We will tell you about a new hate-crimes hot line in Colorado where the government is encouraging citizens to tattle on their neighbors who tell mean jokes.  Oh, Orwellian.

COSBY:  All.  We would all be in trouble here in the office, I think.

CARLSON:  Yes, we—yes, we would.

(LAUGHTER)

COSBY:  Tucker, thank you very much. 

CARLSON:  Thanks, Rita.

COSBY:  We will tune in just a few minutes from now on “THE

SITUATION.” 

And, everybody, still ahead, the big-name lawyer who is taking on the case of Kennedy cousin Michael Skakel tells me why he says the wrong guy may be behind bars. 

And, later, a teacher fired when her school learned she had starred in an X-rated film.  Should she keep her job?  She‘s going to be joining me—coming up. 

(COMMERCIAL BREAK)

ANNOUNCER:  If you have a story you want Rita to investigate, call our tip line, 1-877-TIP-RITA, or log on to our Web site, Rita.MSNBC.com.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

DOROTHY MOXLEY, MOTHER OF MARTHA MOXLEY:  My prayer started out, you know, dear lord, again today, like we have been doing for—like I have been doing for 27 years, I‘m praying that I can find justice for Martha.  You know, this whole thing was about Martha. 

(END VIDEO CLIP)

COSBY:  And it was a murder mystery that haunted a Connecticut town for almost 30 years.  But it may not be over just yet. 

In 1975, 15-year-old Martha Moxley was brutally, brutally beaten to death in her Greenwich, Connecticut, neighborhood.  And the man believed to her killer was finally convicted of the crime in 2002.  Michael Skakel, a nephew of Ethel Kennedy, faces life in prison.  But his lawyers are not giving up.  They plan to appeal to the highest court in the land, after the Connecticut Supreme Court turned them down. 

The newest addition to Skakel‘s team is the former U.S. solicitor-general and well known attorney Ted Olson. 

Tonight, he told me why this case deserves this high-profile attention. 

(BEGIN VIDEOTAPE)

THEODORE OLSON, ATTORNEY FOR MICHAEL SKAKEL:  I do believe that there are a number of constitutional questions that are significant and serious and ought to be brought to the attention of the Supreme Court.  There‘s a number of things about this case that bother me, as a lawyer representing someone who is entitled to have constitutional rights and—and entitled to a fair trial. 

COSBY:  Do you believe he did not get a fair trial? 

OLSON:  I believe that there are very serious concerns and there are constitutional questions that need to be raised. 

I‘m not prepared to render any final judgment.  And, as you know, lawyers don‘t do that.  Lawyers present their client‘s case to the Supreme Court or to the other courts.  And I think there are significant issues in here that—that are going to be very interesting to look at. 

COSBY:  You know, there‘s a separate case, obviously, going through the state channels.  I have talked to a Florida businessman named Tony Bryant.  And he says—you know, he doesn‘t seem to have any motivation at all.

He says that there are two friends of his, former friends, who he says he believes are the ones responsible for killing Martha Moxley.  This was not brought up in trial.  Is it possible that other people are involved for this heinous crime?

OLSON:  Very much so. 

I have heard that story.  I don‘t know too much of the details.  And other lawyers are going to be dealing with this.  But this case was brought 25 years after the events, the tragic events, that—that brought it about in the first place.  Memories had faded.  There was evidence that was not provided to defense.  There were a lots of things that were—witnesses were not available for cross-examination. 

There were a lots of things wrong with this trial, that the

Connecticut Supreme Court changed the statute of limitations after—after

after this—this—Michael Skakel had been tried.  So, there are a lot of things to look at here. 

COSBY:  You know, the Moxley case—and it was Martha Moxley, of course, who was killed—but Moxley‘s family has said to us that they believe the right guy is behind bars.  What would you say to the family tonight? 

OLSON:  Well, I think that the family and everyone in this country would believe that the Constitution has to be obeyed.  The rights of every individual who is brought before a criminal tribunal have to be scrupulously complied with. 

The rules shouldn‘t change with respect to a criminal investigation after the events that gave rise to that prosecution.  We‘re all entitled to those rights.  We are entitled to confront the witnesses against us.  And you cannot count on the validity of a conviction, if those rights are not adhered to. 

COSBY:  When do you plan on doing your filing?  When do you think it will be heard before the highest court in the land? 

OLSON:  Well, the—right now, our deadline would be in the middle of June.  We will probably ask the Supreme Court for a three- or four-week extension of time, so that we can look at the evidence carefully.

We want to make sure that what we present to the Supreme Court is done right.  That means we will probably file something by the middle of July.  The Supreme Court is in recess from the end of June until the 1st of October.  So, we would not expect any action by the Supreme Court until probably the first or second week in October. 

COSBY:  Have you talked to Michael Skakel himself?  And how is he doing, Ted? 

OLSON:  I talked to him last week by telephone.  I have never met him before. 

So, I just wanted to get acquainted.  I wanted him to know the way we go about things.  I wanted just to talk to him and get acquainted with him.  It‘s very, very difficult for him.  He‘s—with respect to his family and the uncertainty of it all. 

But I explained to him that we‘re going to look to see whether the law was complied with, whether his constitutional rights were accorded to him, and we were going to make the best petition that we could to the United States Supreme Court.  I didn‘t make any promises.  I couldn‘t. 

COSBY:  Ted Olson, thanks so much for being with us. 

OLSON:  Thank you, Rita.  I appreciate it. 

(END VIDEOTAPE)

COSBY:  And, coming up, a teacher who was in an X-rated film more than 10 years ago is now fighting back, after losing her job.  She‘s going to join me live next. 

(COMMERCIAL BREAK)

COSBY:  A former Kentucky teacher is calling it a bad decision, one that has come back to haunt her.

More than a decade ago, Tericka Dye appeared in a pornographic film, because she says she needed the money.  And now, 11 years later, the movie has cost her, her teaching job. 

Live and direct tonight is Tericka Dye and her attorney, Mark Blankenship.

Tericka, you said you needed the money.  Why did you do the film, because a lot of people may need the money, but they wouldn‘t do a porno film?

TERICKA DYE, TEACHER FIRED FOR APPEARING IN PORN:  Well, first of all, let me say there was more than one film.  But they were all over a decade ago.

And I did it because I was homeless at the time.  I had two boys.  I really had nowhere to turn.  I don‘t come from any money.  I don‘t come from any—or I don‘t have any family members with any money.  And I felt it was the quickest, fastest way to get money at the time.

COSBY:  And how much did you get paid?  And how many films did you do?

DYE:  There were six scenes.  And I got paid about $700 per scene. 

COSBY:  And how did the school find out that, 11 years ago, you did these scenes? 

DYE:  That‘s unknown to me to this day. 

COSBY:  How do you suspect they may have found out? 

DYE:  I—I don‘t know.  All I can think—all I can say is that I feel like it had to be a malicious intent, because it was not public.  I told no one.  But very few people knew. 

So, I can‘t help but think that somebody deliberately wanted to have me come down from my teaching statue.  And that‘s all I can say.  I—I...

COSBY:  And what kind of teacher were you, what—what—what exactly? 

DYE:  I taught—I taught physics and integrated science, or earth science. 

COSBY:  And when did you find out that they were bringing up the film? 

How did it come about? 

DYE:  Well, I got a letter in January with some pictures from the film, some stills from the film, mailed to me to the school, with the school board‘s return address on it. 

I didn‘t think that it came from the school board.  But I did look at it, and I kept it and said nothing about it to anyone.  And, then, on April 27, the principal called me down into the office and told—asked me about it.  And I admitted to it right away.  And I was suspended within an hour. 

COSBY:  Ah, within one hour. 

Now, Mark, let me put up—this is—the school superintendent said about the dismissal.  He said: “Your presence in the classroom”—referring to Tericka—could cause a disruption to the educational process.  I fear less than a serious approach by students who viewed the video or know about it.”

Didn‘t the school draw attention by doing—you know, by doing this?  And how many of the kids are going to be looking at six scenes from a film 11 years ago?  Is that your question?

MARK BLANKENSHIP, ATTORNEY FOR TERICKA DYE:  Yes. 

I mean, they—they shouldn‘t have had access to it—access to it in the first place.  And, yes, I agree with you.  It‘s stale.  It‘s—it‘s so far back.  I mean, what‘s real important here is that her—her acts, while we would all admit it was immoral at the time, they were legal.  And...

COSBY:  And what do you plan on doing now, Mark? 

BLANKENSHIP:  Well, we have asked for...

COSBY:  What are the legal options?

BLANKENSHIP:  We have asked the Commission of Education in Kentucky to give us a due-process hearing—they‘re called a tribunal hearing—where, if we could present this case to some independent minds, I believe they would rule in her favor. 

COSBY:  Well, in fact, let me put up a quote from one of the parents, because one of the parents says: “She‘s not the person she was 10 years ago.  We have all done things that we regret, except hers is on tape.”

That was a pretty powerful response. 

(LAUGHTER)

COSBY:  Tericka, what do you think, you know, when you see there?  Are you surprised, you know, that some of the parents are saying...

DYE:  I was overwhelmed. 

(CROSSTALK)

DYE:  I mean, I was overwhelmed and extremely happy about the parental support that I have gotten since this came out.  It‘s amazing to me how many of them have looked at me and said, look, we all have stuff in our past.  And this is just....

COSBY:  Like six—like six scenes? 

(LAUGHTER)

DYE:  Maybe not six scenes, granted.

(LAUGHTER)

DYE:  But we all—I have been told most people feel like they have done things in their early 20s that they wish they hadn‘t have done. 

COSBY:  All right. 

Well, both of you, thank you very much.  Please keep us posted on the case.  We appreciate it. 

And, everybody at home, we are going to be right back. 

(COMMERCIAL BREAK)

COSBY:  And, coming up on Wednesday, golfing great John Daly is going to join me live and direct right here in our studio.  He has battled addictions, from alcohol to gambling to sex.  And, in between golf matches, he has married, well, four times. 

If you have any questions that you want me to ask golfing great John Daly, now is your chance.  We want to get you involved at home.  Be sure to e-mail us at Rita.MSNBC.com.  Or call our tip line.  You can see it up there on the screen.  And, then, watch Wednesday night for some of your questions.

And that does it for me on LIVE & DIRECT tonight.  

Now let‘s go to Tucker with “THE SITUATION”—Tucker. 

CARLSON:  Well, thank you, Rita.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

END   

Copy: Content and programming copyright 2006 NBC.  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 NBC and Voxant, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

transcripts

Watch Rita Cosby Live & Direct each weeknight at 10 p.m. ET

Discuss:

Discussion comments

,