updated 6/20/2006 12:17:36 PM ET 2006-06-20T16:17:36

Guests: Michael Berger

MICHAEL SMERCONISH, GUEST HOST:  Right now in SCARBOROUGH COUNTRY, big developments in the Duke rape investigation, as NBC gets an exclusive look at key prosecution documents that tonight have even more people asking, Should the DA now drop the case?  And then: She‘s the high school valedictorian, but the school cut her graduation speech when she started talking about God.  Can you believe it?  That‘s our “Showdown.”  And what really happened on 9/11?  The conspiracy theories are running wild all over the Internet.  Do they have a point, or should these folks just get a life?

Welcome to SCARBOROUGH COUNTRY.  No passport required, only common sense allowed.

Thanks for being here tonight.  I‘m Michael Smerconish, in for the big guy, who‘s feeling under the weather.  We‘ll have those stories later.  But first, major developments in the Duke rape investigation, as NBC News gets the first exclusive look at the district attorney‘s evidence in the case, and it ain‘t good for the prosecution.  Plus, “Newsweek” magazine raises even more doubts about the prosecution.  How low can that case go?  And finally, news today that a new candidate has jumped into the election for district attorney, charging that the current DA, quote, “sold out the people of Durham.”

Despite the avalanche of criticism, DA Mike Nifong says he has, quote, “no doubt that a rape occurred” at a Duke lacrosse party back in March, and he‘s sticking to his guns.  Three players still face rape charges.  They said all along that they‘re innocent.

And now for the latest on these developments, let‘s go live to North Carolina and bring in NBC‘s Michelle Hofland.  Michelle, what have you learned from these documents obtained exclusively by NBC?

MICHELLE HOFLAND, NBC CORRESPONDENT:  That‘s right.  NBC‘s general manager—MSNBC‘s general manager, Dan Abrams, is the first and only correspondent to take a look at the 1,728 pages of documents that the district attorney has turned over to defense attorneys.  And I‘ll tell you, from the stuff that I have seen and the stuff that Dan has seen, we have counted at least 10 different times that this alleged victim has changed her story—not little changes, but big changes in her story and what happened at that party.

Also, according to the medical records that NBC has looked at, there is little if no physical evidence that this woman was brutally raped and beaten by the three Duke lacrosse players.  Now, add to that this “Newsweek” article that‘s on the stands across the country today that strongly questions Mike Nifong‘s case, not only that, questions his motives.

And speaking to that today, a man has said that he was going to run against Mike Nifong in the November elections.  His name is Steve Monks.  He‘s a 44-year-old married man of two.  He says that he is running because of mistakes and misjudgments in the Duke lacrosse case.  He is a Republican in a county that has 65 percent of the people are Democrats.  But he‘s confident that he‘ll be able to get the 6,500 signatures needed to run against Mike Nifong in November.  And then another man has also indicated that he may run, as well.

One more thing.  On Thursday, that‘s when Nifong is going to face the attorneys for the Duke lacrosse players in court for a hearing, and Michael, they tell us that hearing is going to get very heated.

SMERCONISH:  Michelle, great report.  I‘ve wondered, from the outside looking in, what‘s the feeling in the community, the fact that somebody has now stepped forward, albeit against tall odds, to run against Nifong in the general.  That tells me something.  Thanks for a great report.

HOFLAND:  Thank you.

SMERCONISH:  A story in the new edition of “Newsweek,” as Michelle mentioned, casts doubt on the case and the district attorney who is hanging his career on it.  Susannah Meadows co-wrote the latest “Newsweek” story.  She joins me now.  Susannah, I was especially shocked at one part of your story—great reporting, by the way.

SUSANNAH MEADOWS, “NEWSWEEK”:  Thank you.

SMERCONISH:  You wrote the following.  Quote, “She didn‘t say she had been raped until she was taken to a mental health and substance abuse facility, where she was to be involuntarily committed.  But then, after being released and taken to the hospital, she recanted to a police officer, saying she had not been raped.  She later changed her story and told nurses and doctors she had been raped, after all, though in one account it was by 20 guys, in another it was by 3.”

Holy smokes, in terms of contradictions!

MEADOWS:  Yes.

SMERCONISH:  How in the world does Mike Nifong claim that he‘ll be able to dig out of this hole?

MEADOWS:  Well, that‘s the big question.  How in the world was he out there saying, at the very beginning, that he had no doubt that a rape had been committed?  And how is he still saying that his opinion hasn‘t changed?  At the very least, there should be a lot of doubt in this woman‘s story just because she‘s changed her mind so many times.

SMERCONISH:  You had an interesting e-mail exchange with the DA.  You sent him an e-mail in which you said, “We‘re getting ready to do a big story about this, about how certain things were said in public when the facts were known to be different.”  You were speaking directly about comments that he had made.  And then his response, quote, “None of the facts I know at this time, indeed, none of the evidence I have seen from any source, has changed the opinion that I expressed initially.”

So he‘s not backing off one bit.

MEADOWS:  Oh, not at all.  And he goes on to—I mean, he went on for paragraphs, talking about how he can‘t believe how unskeptical the national media has been and that we‘ve been spun by defense attorneys.  But you can‘t be spun by actual police statements, by a sergeant writing down what happened that night and describing how her story went from she was raped to she wasn‘t raped to she was raped.  I just don‘t know how that can be interpreted in any other way.

SMERCONISH:  Susannah, I‘d be derelict in my duty if I didn‘t bring up the fact that “Newsweek” itself put mug shots on its cover of, as I recall, two...

MEADOWS:  Absolutely.

SMERCONISH:  ... two of these follows.  And I‘m reading your article, and I‘m wondering maybe there‘s some consternation on the part of “Newsweek” for having run that report to begin with.

MEADOWS:  Well, I think we just—we take it very seriously that we put a lot of—you know, we brought a lot of attention to the fact that these two individuals were indicted.  And so now that it looks like the case is a little shakier than we thought then—we were going on what was available—what information was available then.  Now that we know a little more, we feel responsible to make—to announce that, actually, the case against them is not that strong.

SMERCONISH:  I recommend your article to everybody.  It came out today, and it‘s well-balanced, and I appreciate you being here.

MEADOWS:  Thanks, Michael.

SMERCONISH:  Susannah Meadows, thank you.  Now let me bring in former prosecutor and MSNBC legal analyst Susan Filan.  Susan, I know that you‘re familiar with the 1,300 pages of documents that were handed over from the prosecution to the defense.  Here‘s the question.  Is there anything else that DA Mike Nifong has that he‘s not yet obligated to produce to the defense?

SUSAN FILAN, FORMER PROSECUTOR, MSNBC LEGAL ANALYST:  No.  There‘s a continuing duty to disclose.  We don‘t prosecute by playing “hide the ball.”  The accuser has a right to know what the evidence is against him.  Mike Nifong had to have turned over anything.  Anything that he‘s got, he still has to turn over.  There may be more stuff coming Thursday, but what else could there be?

We know what her statement is.  And that‘s what I wanted to see.  I wasn‘t going to take a position until I saw with my own eyes what the accuser‘s statement was and I saw the sexual assault nurse‘s examination and the report of that and the doctor‘s report.  I‘ve seen it now.  Without DNA, without consistency, without corroboration...

SMERCONISH:  What‘s the significance of the doctor‘s report of which you speak?  And do you think Mike Nifong had seen it before he pursued the indictment?

FILAN:  No, I don‘t think he saw it.  I think he saw the sexual assault nurse‘s report, but I don‘t think he saw the doctor‘s report.  What‘s significant about that is there‘s a doctrine called “constancy of accusation.”  What that means is the victim will repeat her story initially to the police, then to the nurse, then to the doctor, then to her mother, then to her friend.  We‘re looking for constancy.  We‘re looking for that to be consistent and to be corroborated by some other evidence.

We‘ve got contradiction after contradiction.  What she tells the police is different from what she tells the nurse and it‘s different from what she tells the doctor!

SMERCONISH:  What I think is significant—and folks who are, unlike the two of us, not lawyers, out there in SCARBOROUGH COUNTRY, need to know this.  You know, the Perry Mason business of a surprise witness coming in at the end—it‘s the stuff of television.  It‘s not the reality.  So to the extent that there is a smoking gun that Mike Nifong has in his arsenal, and I think you‘ve confirmed this, he would have been obligated by now to make that available to the defense.

FILAN:  And let me tell you something.  If he‘s got it and he hasn‘t turned it over, it‘s very well likely going to be stricken from the record and never get into court.  Now, if something has developed between the last time he disclosed on Thursday, we‘ll find out.  We‘ll find out Thursday.  But I got to tell you, you just don‘t hide the ball in a criminal case.  You can‘t get away with it.  The judge will shut you down, say it wasn‘t timely disclosed, that evidence does not come in.

SMERCONISH:  Gotcha.  All right, Susan Filan, thank you.

Let me bring in former prosecutor Wendy Murphy.  Hi, Wendy.  Wendy, let‘s take a look at some of the evidence that is known to us, or we think is known to us, meaning it‘s in the public domain at this point.  And it‘s a litany, but I‘ve got to hit you with the litany and then ask you, How does Mike Nifong climb out of this hole, if this is accurate?  You‘ve got a victim who apparently made similar complaints in the mid-‘90s, no DNA, somebody else‘s semen in the victim, according to “Newsweek” today...

WENDY MURPHY, FORMER PROSECUTOR:  Her boyfriend.

SMERCONISH:  ... could be 20 guys, could be 3 guys, contradictions, contradictions in the timeline, as well, with Reade Seligmann having called his girlfriend a reported six times in the window that is set aside for when the alleged rape occurred, a line-up where there was no control, meaning the only photographs shown were of Duke lacrosse players.  The second dancer initially says it‘s a crock, and a report from the Kroger‘s (ph), where she was initially taken, that she was drunk.

What in the world could Mike Nifong have that would turn all of that around?

MURPHY:  I‘ll tell you what he doesn‘t have is a selective characterization of evidence by the defense team, you know, and you, frankly, getting sucked into what is clearly an attempt by the defense to politicize...

SMERCONISH:  Well, answer my question.  What could he have?

MURPHY:  Yes, but which one?  Which one...

(CROSSTALK)

MURPHY:  I‘ll tell you what he doesn‘t have is, you know, a weak backbone because he has stood silent and strong against all the silliness coming out of the defense team!  And you know what really gets at me?  “Newsweek,” a respected magazine, dares to write such a judgmental piece and call it news?

SMERCONISH:  Well, wait a minute.  I have a question...

MURPHY:  It‘s an opinion piece!

SMERCONISH:  ... for you.  Wait a minute, Wendy!

MURPHY:  ... and they don‘t have those 300 pages?

SMERCONISH:  Wendy, hold it.  Wait a minute.

MURPHY:  They don‘t have...

SMERCONISH:  Put that back on the screen.

MURPHY:  ... the evidence!

SMERCONISH:  I want Wendy Murphy to look at the screen.  Wendy, hopefully, you‘ve got a monitor.  Were you equally critical of “Newsweek” when they ran the mug shots?  Were you then saying, My God, that‘s unfair to those two young men from Duke?

MURPHY:  No.  Let me tell you something.  First of all, “Newsweek” has an obligation to put up front and center in that story that they have not seen the 1,300 pages, or either of the two DNA reports!

SMERCONISH:  Susan Filan has, and you just heard from her!

MURPHY:  She doesn‘t work for “Newsweek”!  And I‘ll tell you something.

SMERCONISH:  She‘s read the material!

MURPHY:  I‘ll tell you, it is not an accident that they revealed those pages to Dan Abrams, an alum of Duke, and they didn‘t reveal them to me, Michael, or frankly, to you!

SMERCONISH:  My question is this...

MURPHY:  No!  Let me say something!  I‘m not going to get sucked into your silly questions!

SMERCONISH:  But you haven‘t answered my question!

MURPHY:  I‘m going to tell you what matters...

SMERCONISH:  What could he have?

MURPHY:  I‘m going to tell you what matters the most.  As a strategic matter, what the defense needs to do if they want to persuade me that this is a big hoax and a nothing case, file a speedy trial motion.  They haven‘t done it.  They‘ve done a big dog-and-pony show.  They‘ve done nothing but selectively leak information to journalists they think are on their side!

SMERCONISH:  I‘ve...

MURPHY:  Let me see the speedy trial motion...

SMERCONISH:  Wendy, I still...

MURPHY:  ... and mail me the 1,300 pages!

SMERCONISH:  My initial question is...

MURPHY:  Susan—I want you to ask Susan...

SMERCONISH:  ... still hanging!  You haven‘t answered it!

MURPHY:  ... to get me the 1,300 pages!

SMERCONISH:  What could Mike Nifong have in his arsenal—I mean, a videotape presumably of a gang rape occurring.

MURPHY:  Let me tell you what I think he probably has.

SMERCONISH:  What could he possibly have?

MURPHY:  Let me tell you what I think he probably has—statements

from some of the players who are probably cooperating because they actually

have a conscience and think it matters when you tell the truth.  And I bet

she has GHB in her blood.  And I‘ll tell you why we‘re not seeing those two

DNA reports.  You know why?  Because although they may not have ejaculated,

which rapists tend not to do because they‘ve heard of this thing called DNA

they watch “CSI,” too.  But I‘ll tell you, there is no question in my mind that those DNA reports contain some evidence, perhaps, for example, her DNA on an object that was used to penetrate her.

SMERCONISH:  “Newsweek” reports...

MURPHY:  Wouldn‘t that be damning?

SMERCONISH:  ... today that a prominent Duke law professor named James Coleman is calling on Mike Nifong to remove himself from the case and appoint a special prosecutor.  Would you agree with that recommendation?

MURPHY:  I tell you, I want to vote him up.  Whatever, you know, next rung of the ladder prosecutors can go at, he deserves to be promoted and celebrated for not engaging in the nonsense that the defense wants to engage him in!

SMERCONISH:  I hope I am guest hosting for Joe...

MURPHY:  Hey, good for him...

SMERCONISH:  ... the morning after the case...

MURPHY:  ... for standing (INAUDIBLE)

SMERCONISH:  ... implodes and that you are my guest!

MURPHY:  He doesn‘t even have the freedom to tell the truth because the defense would complain...

SMERCONISH:  Thank you, Wendy.  We‘re out of time.

MURPHY:  ... it was unfair publicity!

SMERCONISH:  Hopefully, you and I will get to do this again.

And we want to know what you think.  Should the DA drop the charges in the Duke lacrosse case?  Go to joe@msnbc.com and vote right now, and we‘ll have the results of our live poll at the end of the show.

Still to come tonight, a new front on the war on the Mexican border.  Now it‘s law enforcement taking on President Bush, what they say needs to be done right now.  But when we come back: School officials pull the plug on a valedictorian‘s speech as she‘s giving it, and you‘ll see why.  But did they do the right thing?  That‘s in our “Showdown” tonight.

(COMMERCIAL BREAK)

SMERCONISH:  In tonight‘s “SCARBOROUGH COUNTRY Showdown,” silenced for talking about God.  It‘s a controversy growing in Las Vegas, where a high school valedictorian had her microphone cut during her speech by school officials after she began talking about God.  Now, talk about political correctness run amok!  Our Las Vegas affiliate has the story.

(BEGIN VIDEOTAPE)

BRITTANY MCCOMB, FOOTHILL H.S. VALEDICTORIAN:  ... God is so great (INAUDIBLE)

UNIDENTIFIED MALE:  That was part of the speech that Brittany McComb says aid she so wanted to give on graduation might.  But because it did have numerous references to God and Jesus Christ, the school district cut off the mike, leaving her practically silent.  That‘s why many people stood up and booed, showing their support for her.

UNIDENTIFIED FEMALE:  Turn the mike back on!

UNIDENTIFIED FEMALE:  (INAUDIBLE)

UNIDENTIFIED MALE:  Now, the day after, McComb says she got nothing but support from her fellow students that night.

BRITTANY MCCOMB:  All my classmates were—they came up to me, and they were just so happy, and they—you know, they told me they loved me, and, like, it was awesome, and I responded, like, God‘s awesome because I couldn‘t have done it without him.

UNIDENTIFIED MALE:  McComb says the district reviewed her speech beforehand, just like everyone else‘s.  But she says they sent it back with the last half chopped off.

BRITTANY MCCOMB:  And they said that that was offensive and it was identifying a particular religion, which, you know, I really think it‘s free speech.  And you‘re an American.  You should—you know, you should be able to handle that.

UNIDENTIFIED MALE:  We asked her father about that.

(on camera):  Yes, we have freedom of speech.  But what about separation of church and state?

MICHAEL MCCOMB, BRITTANY‘S FATHER:  You know, they brought that up, and they were going to give us some documentation to prove why she couldn‘t do what—why she couldn‘t say her speech.

UNIDENTIFIED MALE:  They said the documentation was ambiguous.  That was when Brittany said she took it upon herself to go ahead and give her speech as written, no matter what the consequences might be.

(END VIDEOTAPE)

SMERCONISH:  Joining me now is Sean Skottey.  He‘s a friend of Brittany‘s family.  He shot the video of her speech that we just saw.  Welcome to SCARBOROUGH COUNTRY, sir.

SEAN SKOTTEY, SHOT GRADUATION VIDEO:  Thank you for inviting me.

SMERCONISH:  A family friend.  Any blood relation to these folks?

SKOTTEY:  Not blood relations, but I do know the family.  I‘m a friend of the family.

SMERCONISH:  So what was the reaction in the hall?  I heard some catcalls, some boos.  The folks seemed to be supportive of Brittany continuing with what she wanted to say.  But you were there.  Tell me what occurred.

SKOTTEY:  Absolutely.  After her mike was cut after a few seconds, it was pretty clear that the audience was kind of shocked that they had done that.  A few seconds later, we started to hear boos and jeering and people saying, Turn the mike back on, and, Let her speak.  That was really the frustration of the crowd.  And during this time, when I was shooting the video, I was also, while trying to keep one eye on the camera, trying to keep the other eye on the crowd in the arena and...

(CROSSTALK)

SMERCONISH:  Did those folks know the nature of the controversy?  I was watching your video, and I wondered, were they completely in the dark, or was the word out in the community that she‘d been instructed that she better not read certain passages from the speech?

SKOTTEY:  Well, just from my previous experiences going through high school graduations—and I graduated seven years ago, and I know that they do have to approve the speeches.  I did not know that she was going to do this, though.  That‘s why I was so surprised.  And obviously, the majority of the crowd in the arena were surprised, as well.

SMERCONISH:  Now, listen, the reality is—and I have the speech in front of me, I‘m holding it up right here.  And she was told—they wrote, they edited, they said, These are the parts you cannot read, and she decided nevertheless to move forward and to deliver the speech that she wanted to.  So she knew what she was doing.

SKOTTEY:  I suppose she did.  And that‘s why I understand why the school district did turn off her mike because I guess their policy is if you deviate from the script, they‘ll cut you off.

SMERCONISH:  And she‘s off now for religious studies.  That‘s the type of college out in California where she‘ll be beginning in the fall.

SKOTTEY:  That I‘m not sure of.  But I know that she is—she has graduated now and is moving on to other things.

SMERCONISH:  All right.  Sean Skottey, thanks for being on SCARBOROUGH COUNTRY.  We appreciate it very much.

SKOTTEY:  Thank you very much, sir.

SMERCONISH:  I want to bring in a Civil Rights attorney Michael Gross, never a man who‘s quiet on matters like this.  Michael, welcome back to SCARBOROUGH COUNTRY.

MICHAEL GROSS, CIVIL RIGHTS ATTORNEY:  Thank you.

SMERCONISH:  Listen, big guy, to the victor go the spoils.  She‘s the valedictorian.  Let her deliver whatever speech she wants to.  She earned that right.

GROSS:  She can argue that before the board and the council that vetted the speech.  She gave a Christian sermon in the wrong place.  She gave it in a government-sponsored forum.  It‘s illegal.  She didn‘t learn about freedom of speech correctly.

Here‘s what she said.  “God gave his only son.  This is why Christ died.”

SMERCONISH:  Well, let me...

GROSS:  She was told this identifies a particular religion.  Don‘t say it.

SMERCONISH:  But Michael, let me—let me...

GROSS:  Say it on Sunday, say it in church.  Don‘t say it at a government-sponsored forum.  It violates the 1st Amendment.

SMERCONISH:  But wait a minute!  I‘m going to get to the 1st Amendment...

GROSS:  She ignored that, overrode that...

SMERCONISH:  Well, let me read to you...

GROSS:  ... and that‘s when they cut the mike on her.

SMERCONISH:  I want to read to you an excerpt.  And I want to be clear about this.  This is part of Brittany‘s speech that the school said was fine.  Here‘s what they told her she could say.  “There was a teacher there trying to help me, God.  I had ignored him all these years, and he was just trying to show me what shape fits into the cut-out in my soul.”

Now, Michael Gross, you wouldn‘t have even let her say that!

GROSS:  Oh, no, I didn‘t say that.  What was taken out was when she identified a particular religion—not faith, not spirituality, not God...

SMERCONISH:  So that God‘s acceptable?

GROSS:  That Jesus Christ—she cites Jeremiah.  She tells us why Christ died.  Wonderful.  But this is not a forum in which it is legal to do that.

SMERCONISH:  All right, let me...

GROSS:  It‘s prohibited.

SMERCONISH:  Let me ask you something else because...

GROSS:  There‘s a reason for that.

SMERCONISH:  Everybody likes to say, Well, you know...

GROSS:  Supposing it was Muslim?  Supposing it was...

SMERCONISH:  It‘s a violation...

(CROSSTALK)

SMERCONISH:  They say it‘s a violation of the separation of church and state, but as you...

GROSS:  It sure is.

SMERCONISH:  But wait a minute, now.  As you well know, nowhere in the Constitution does it speak of a separation of church and state.  It speaks of an establishment.  Are you telling me that this young woman was establishing a religion by invoking God into her commencement address?

GROSS:  We, the people, pay the rent on that school to be told—to have our children told what the facts are and taught what the facts are, not faith.  Now, when you identify that there is such a thing as faith, there are various religions, these are the teachings of the various religions, you‘re educating.  But when you say, as she said often here, Trust me, I guarantee you. Jeremiah tells us what the plan is, this is a sermon.

SMERCONISH:  But the Constitution...

GROSS:  It‘s a (INAUDIBLE) sermon, a great sermon.

SMERCONISH:  But the Constitution...

GROSS:  Maybe it‘s true and maybe it‘s inspiring...

SMERCONISH:  But the Constitution says...

GROSS:  ... but it doesn‘t take place in a governmental forum.  It‘s illegal.

SMERCONISH:  But the Constitution says don‘t establish a religion.

GROSS:  Right.

SMERCONISH:  She‘s talking about religion, but she‘s not establishing a religion.  Are you telling me all those kids are going to go home and be Christians now?

GROSS:  It‘s the fact—well, that‘s what she‘s proselytizing.  This is preaching.  It‘s the fact that she identifies a particular religion.  Come on, Michael.  Let‘s be fair.

SMERCONISH:  Hey, my question is...

GROSS:  This was the majority of the audience there.

SMERCONISH:  My question is...

GROSS:  What about the minority people?

SMERCONISH:  How does she end up...

GROSS:  What about the people who don‘t believe this?

SMERCONISH:  I want to know how she ends up with a 4.7 GPA because in my era, not that I ever got that high, it was always capped at a 4.0.

GROSS:  Well, I‘m...

SMERCONISH:  I guess it‘s—it‘s the new math.

GROSS:  I don‘t know what grade she got in history and constitutional law.  She certainly didn‘t learn about the 1st Amendment.

SMERCONISH:  All right, Michael Gross...

GROSS:  She shows no respect for it.

SMERCONISH:  All right.  Thank you, fellow.  Appreciate you being here.

GROSS:  A pleasure.

SMERCONISH:  Coming up: Thousands of pages and countless hours of testimony, yet conspiracy theories about the 9/11 attacks—they‘re running wild on the Internet.  We‘ll dig deeper with both sides tonight.  But first: Bush versus law enforcement?  Why some on the front lines of the immigration battle are fighting mad at the commander-in-chief.

(COMMERCIAL BREAK)

(NEWSBREAK)

SMERCONISH:  Are we getting the truth about what happened on 9/11?  A growing group of Americans think we haven‘t gotten the full story, and we‘ll hear from both sides. 

Later, could this help increase tourism for one South American country?  You decide in tonight‘s “Must See SC.”

Welcome back to SCARBOROUGH COUNTRY.  I‘m Michael Smerconish, in for the big guy tonight, who‘s under the weather.  Those stories in just minutes. 

But first, border sheriffs telling President Bush:  Don‘t mess with Texas.  It‘s all in a shocking new report about the flood of illegal immigrants coming across our border.  Despite President Bush‘s tours of the southern border and a pledge to put 6,000 National Guard troops on the front lines, Texas border sheriffs say the White House is ignoring them.  We‘ll talk to a sheriff on the border in a moment. 

But first, let me bring in investigative reporter Sara Carter.  She‘s covered the border extensively. 

Sara, what‘s the skinny on this controversy?

SARA CARTER, “INLAND VALLEY DAILY BULLETIN”:  Well, it‘s certainly controversial.  I received a call from Congressman Ted Poe from Texas.  He‘s a Republican.  He had requested two months ago that the White House, that the president in particular meet with the border sheriffs in order to get the scoop and the story on what‘s really happening along the border. 

You have to realize many of these sheriffs are really the first line of defense in the country.  They‘re the ones who are mostly called by neighbors and ranchers who spot migrants on the border or narcotics traffickers. 

SMERCONISH:  Well, what‘s their beef?  What would they tell the president if they had such a meeting? 

CARTER:  Well, I know that one of the things they want to tell the president—I mean, obviously, the president was in Laredo, Texas, and that was one of the requests that they didn‘t receive.  The second request was also denied. 

But one of the things that they would like to discuss with the president is the issue of national security.  They see the border as a very real threat, and they feel that, when the president had attended and met with Border Patrol officials in Laredo just a few weeks ago, that he really wasn‘t getting the full story from them. 

SMERCONISH:  Well, I doubt one of these gentlemen...

CARTER:  It was more of a dog and pony show. 

SMERCONISH:  In the on-deck circle, let‘s go to Hudspeth County, Texas, where border sheriffs face are Mexicans, dangerous cartels, threats against their own family members.  Hudspeth County Sheriff Arvin West, he‘s on the phone with us. 

Thank you, Sheriff.  We appreciate you being here in SCARBOROUGH

COUNTRY.

SHERIFF ALVIN WEST, HUDSPETH COUNTY, TEXAS:  Thank you, sir. 

SMERCONISH:  If you were in front of the president of the United States, what exactly would you say to him? 

WEST:  Well, to begin with, it‘s not as it‘s depicted by the Border Patrol, and I say the higher-ups.  I mean, he needs to get down and get down with the guys that are actually down here doing the work and not look at the dog and pony shows that are being put on for him. 

SMERCONISH:  What exactly is it that you are seeing on a day-to-day basis that you think the commander in chief needs to be aware of? 

WEST:  Well, for example, we‘ve intercepted former—either active or former Mexican military coming across.  We‘ve apprehended 238 aliens in two operations, and these military personnel are inundated with these guys. 

SMERCONISH:  Is this only in your county in Texas or are you telling me this is several of the border states that all could report similar stories to the commander in chief? 

WEST:  Not only Texas; Arizona, New Mexico and California could report some of the same stuff. 

SMERCONISH:  In other words, you‘ve conversed with your counterparts from those states, and they‘ve said, “We‘ve got the exact same issues as Sheriff West”? 

WEST: Correct.  The issues of the OTM still coming across and still getting by, you know. 

SMERCONISH:  What‘s the answer, Sheriff West?  I mean, how do we solve this problem?  Do we need the fence? 

WEST:  Well, in my part of the country, the fence won‘t work. 

SMERCONISH:  Why not? 

WEST:  Because they‘ll tear it down. 

SMERCONISH:  You‘re telling me that, if we were to erect something like they have in the West Bank right now in the Middle East, you think that would be insufficient because, why, these folks are so armed, they‘re so cagey, they‘re so skillful? 

WEST:  The fact that they‘re skillful, that they‘ll go up over the top of it, around it, underneath it, it doesn‘t matter.  But I‘ve got 113 miles of border down here that‘s real, you know, sparsely populated.  It‘s wide open. 

SMERCONISH:  It‘s not what you expected from the former governor of Texas, I take it. 

WEST:  Absolutely not.  And I wished he would sit down with us so we could show him some of the documentation, some of the photos that we‘ve all generated.  And like I said, I‘m talking from the sheriff from Brownsville, Texas, all the way to San Diego. 

SMERCONISH:  All right, thank you very much, Sheriff Arvin West.

Let me bring in now Juan Hernandez, a former adviser to Mexican President Vicente Fox and author of “The New American Pioneers.” 

Juan, welcome back to SCARBOROUGH COUNTRY.

JUAN HERNANDEZ, FORMER ADVISER TO VICENTE FOX:  Thank you.

SMERCONISH:  Let me tell you what this means to me.  What it means to me, if these folks on the front lines of the war on terror and this illegal immigration—I‘m not going to say undocumented; the word is illegal—if they‘re demanding a meeting with the president, it tells me those borders are still porous on our southern flank.  Wouldn‘t you agree? 

HERNANDEZ:  What I would agree with you, my friend, is that the border states are wanting the federal government to take action to create a program that‘s realistic for the United States of America and to document those who are already here, who are good people, who are already, in a sense, good citizens, who are doing great things for this nation. 

(CROSSTALK)

SMERCONISH:  But isn‘t the answer to solve porous borders and then move on with the guest worker, whatever we‘re to do with the 11 or 12 million?  In other words...

HERNANDEZ:  No, because...

SMERCONISH:  Let me just finish this thought. 

HERNANDEZ:  Sure. 

SMERCONISH:  I think that folks in SCARBOROUGH COUNTRY are unwilling to go along with the president‘s agenda until they‘re convinced that the porous borders have been closed.  And when you hear from a guy with no agenda, a sheriff down there in Texas, who says, “Man, we need a meeting, because we can‘t be heard on this,” that tells me all I need to know. 

HERNANDEZ:  Yes, but also listen to sheriff‘s words.  He just said that that wall, that that fence, will not work.  Let‘s do something that does work.  Let‘s work smart.  I‘m right now visiting Arizona. 

CARTER:  Why?

HERNANDEZ:  And the kind of stuff that I hear all the time by...

CARTER:  Why? 

... my dear Sara, who‘s trying to right now interrupt me...

SMERCONISH:  Let him finish, Sara, and then it‘s your turn.  Go ahead, sir. 

CARTER:  Ok, great. 

HERNANDEZ:  You know, Sara talks about how there‘s a war zone here at the borders.  Well, I‘m right now here in Arizona, and I‘ve been meeting with pastors, with priests, with credit union people, the Arizona Federal Credit Union, they‘re doing wonderful things with the immigrants. 

And what they are saying is that up to 75 percent of the people in Arizona say, “Let‘s go ahead and legalize the undocumented.  They are good people.”  Only 4 percent of the people in Arizona, according to a recent poll last week...

SMERCONISH:  Sara, go ahead, you respond. 

(CROSSTALK)

SMERCONISH:  Go ahead, Sara.

HERNANDEZ:  ... could be somehow harming our country.

CARTER:  But why?  What do credit union personnel know about narcotics trafficking on the border? 

HERNANDEZ:  Oh, don‘t speak against credit unions.

CARTER:  Juan, we have to be factual here. 

HERNANDEZ:  I thought we were talking about the undocumented. 

CARTER:  Juan...

HERNANDEZ:  I thought we were talking about the undocumented.

CARTER:  ... we‘re talking about a problem—no, our sheriffs want to meet with the president of the United States to discuss what is happening on the border.  There is a serious problem on our southern border.  We have narcotics traffickers controlling the entire 2,000-mile southwest border with Mexico. 

HERNANDEZ:  Oh, Sara, Sara, Sara. 

CARTER:  Juan.  And the Mexican government does very little to stop it. 

HERNANDEZ:  Are you talking about Iraq, Sara? 

SMERCONISH:  Hey, Juan, let me just tell you—Juan...

HERNANDEZ:  You‘re not talking about the United States and Mexico. 

CARTER:  Yes.

SMERCONISH:  Let me get in on this.  Hold on, Sara.  I‘m a guy who‘s 2,000 miles away.  I‘m from Philadelphia.  It‘s hard for me to know what to believe.  The R‘s say one thing, and the D‘s say another. 

But it means something to me when a guy on the front line in law enforcement says it‘s out of control and those of us in my job, from several states, we want a sit-down with the man.  Juan, that tells me all I need to know.  Those borders are still wide open. 

HERNANDEZ:  And I believe that they have the right to meet with their president, and they should meet with George W. Bush, president. 

But listen to what the sheriff is saying:  He is saying that we need to do something about the border from the federal government.  Let‘s push Congress to do what is right.  Let‘s go ahead and do something about these wonderful 11 million people who are here, and then let‘s create a program, a program that is best for the United States. 

SMERCONISH:  But, see, I can‘t live with that. 

HERNANDEZ:  Congress is saying we need about 400,000 visas...

(CROSSTALK)

SMERCONISH:  And I think that most Americans can‘t live with it.  Hold on, now.  I think that most Americans don‘t want to talk about the 11 or 12 million, because we‘re fearful that there will be another 11 or 12 million taking their place in five or 10 years. 

Close those borders.  Get it under control.  Give Sheriff West the support that he needs.  Then talk to me about the 11 or 12 million.

Sara, you get the final word.  Make it quick. 

CARTER:  Make it quick.  I walked the Rio Grande with Sheriff West and with many others.  And what I‘ve seen there—and I‘ve crossed into Mexico many times, Juan—and what I‘ve seen there is the reality.  And the reality is there is a national security problem along the border. 

HERNANDEZ:  And we‘ll have to go down together, Sara, one day.

SMERCONISH:  All right.  Thank you, Sara Carter.  Thank you, Juan Hernandez. 

CARTER:  OK. 

SMERCONISH:  We appreciate you both being on SCARBOROUGH COUNTRY.

I‘m joined by Rita Cosby, host of Rita Cosby “LIVE & DIRECT.”  Hey, Rita, what‘s coming up at 10:00? 

RITA COSBY, HOST:  Well, Mike, we have a lot—we have some incredible pictures to show you coming out of Texas tonight.  We‘ll talk live to several people who escaped massive flooding there. 

Plus, we‘ve learned that the estranged wife of sniper suspect Darren Mack, who‘s on the run, thought he was going to kill her months ago.  We‘re going to talk live to her boyfriend, who will also tell us why he also feared for his life. 

And one of your favorite topics, Michael, we have “American Idol” winner Taylor Hicks...

SMERCONISH:  It is one of my favorite subjects.

COSBY:  ... in his first post-“Idol” video.  This is his first video since “American Idol.”  It is not at all what you would expect and all of our viewers.  So, everybody, Michael, and everyone else, you have to tune in at the top of the hour. 

SMERCONISH:  Rita, I‘m a Taylor guy.  I don‘t know why you said that. 

I love Taylor Hicks. 

COSBY:  Well, no, this is a good one, actually.  You‘re going to like it, but this is a new twist on Taylor. 

SMERCONISH:  Cool.  Hey, thanks.  It sounds like a great show. 

COSBY:  Thank you.

SMERCONISH:  Rita Cosby, up here next. 

Coming up next on SCARBOROUGH COUNTRY, 9/11 conspiracy theories, are they fact or fiction?  You‘re going to want to hear from our next two guests before you answer this controversial question.  And later, we hit the Internet to bring you tonight‘s “Must See SC” video.  You must see it.  Stay with us. 

(COMMERCIAL BREAK)

SMERCONISH:  Although the September 11th attacks were almost five years ago and the 9/11 Commission report has been released for some time now, some folks are still asking questions about what happened that day.  A Zogby poll, commissioned just last month by 911Truth.org, found that a whopping 42 percent of Americans think the government and the 9/11 Commission are covering something up. 

Conspiracy theory videos, they‘re all over the Internet.  Here‘s one of them that we‘re going to talk about. 

Joining me now is Michael Berger, 911Truth.org press spokesperson. 

Welcome to SCARBOROUGH COUNTRY.

MICHAEL BERGER, 911TRUTH.ORG:  Thank you, Michael. 

SMERCONISH:  Michael, did the 9/11 Commission get it wrong? 

BERGER:  Well, I think there are many conflicts of interest that the commission members had, and there are certainly conflicts in official testimony that were never reconciled, such as between Norman Mineta and Dick Cheney regarding his whereabouts in the presidential bunker, and about Flight 77 and the Pentagon, for example. 

SMERCONISH:  Well, did they deliberately get it wrong? 

BERGER:  Oh, I‘d love to get them under oath and find out. 

SMERCONISH:  But is your suspicion that there was collusion among these 10 folks, that there was a cover-up, and that they were all in on it, that some of them were in on it, that none of them were in on it? 

BERGER:  Well, I mean, all we can do is look at the results of the official testimony.  For example, in a footnote to the commission report, the commission stated that the black boxes were never recovered from Ground Zero.  And yet, through independent sources, through a 20-year veteran of the Fire Department, who took federal agents around, who located the boxes, and an anonymous source at the NTSB in December of ‘05, who publicly said to David Lindforth (ph) that he had examined those boxes, these contradictions have never been reconciled, so it raises questions. 

SMERCONISH:  Is that the best of what you‘ve got?  In other words, I don‘t ask it in a condescending way.  But, like, knock my socks off.  With all that took place on September 11, what‘s the one element that you think folks in SCARBOROUGH COUNTRY will say, “Holy smokes, I didn‘t know that”?

BERGER:  Well, I had asked your producer if you would play a clip of Building Seven, for example, a clip that is... 

SMERCONISH:  We will.  Here you go.  Tell us what we‘re about to see.

BERGER:  Well, I can‘t see the clip, but what you‘re seeing is Building Seven was north of the World Trade Center site.  It was damaged in the collapse of the north tower on its south face.  It was a 47-story tall, 570-foot-tall building and yet even the FEMA report in the investigation of the collapse of that building, again, was never hit by a plane, collapsed at 5:20 in the afternoon on September 11.

SMERCONISH:  But it was in such close proximity to the Twin Towers.  I mean, surely it paid a price, because it was...

BERGER:  Absolutely.  Absolutely, Michael, it did.  However, again, the NST investigation (ph) said that the damage from the collapse of the north tower took out structural columns on the south face.  If you watch that clip, you can see, depending on the clip you‘re showing, whether or not the east penthouse begins the collapse. 

SMERCONISH:  Michael Berger, I‘ve got...

BERGER:  Michael, let me finish though.  And yet, the building does not collapse to the south in the direction of the damage; it collapses straight down symmetrically in 6.6 seconds. 

SMERCONISH:  I want to ask you—I‘ve got to move on, because our time‘s limited.  The Pentagon...

(CROSSTALK)

SMERCONISH:  Well, hold on now.  I spent a lot of time.

BERGER:  Well, you had asked me—you had asked me.  I would like to address this one issue, though. 

SMERCONISH:  And you did.  But the Pentagon...

BERGER:  There‘s a bit more to it.  There is more to it. 

(CROSSTALK)

SMERCONISH:  And I wish we didn‘t have time constraints. 

BERGER:  OK.

SMERCONISH:  But having surveyed the Internet today for a time period longer than I care to admit, the Pentagon seems to be a great focus from people who believe that we haven‘t gotten the full truth relative to September 11th

BERGER:  Right. 

SMERCONISH:  You know what I‘m talking about, the hole, the lack of wreckage from a fuselage on the lawn of the Pentagon concern about the videotape.  Here‘s what I keep coming back to:  Where are the people?  Where are the folks who were on Flight 77?  Where are those 64 individuals, living in Area 51?  I mean, where are they? 

BERGER:  Well, I would like to—you know, for example, you raise a great question.  I‘d like to know where the fighter jets were from the Air National Guard‘s unit at Andrews 10 miles away that, an hour and 20 minutes after we knew we were under attack, the Pentagon could not be protected.  Those are the legitimate questions...

SMERCONISH:  But it‘s like that movie—that M. Night Shyamalan movie, “The Village.” 

BERGER:  ... Michael, that don‘t ever get asked or raised.

SMERCONISH:  No, Michael, I think this is legitimate.  This is—because to buy into this is to buy into that, you know, that M. Night Shyamalan movie, “The Village.”  I‘ve got to believe—and I think it‘s horrific to bring such a burden on the living relatives of family members who died on that flight, this idea that maybe they‘re living somewhere and they‘re going to come running in with a Hollywood ending. 

BERGER:  You know, I‘m glad you bring up the relatives and the family members, because the firefighters, for example, sued and lobbied congressmen for hearings about the radios and an illegal contract in Motorola in New York City.  And they have asked specifically their representatives to hold hearings with subpoena power on the Hill...

SMERCONISH:  They had hearings.  There were 9/11 Commission hearings. 

BERGER:  No, no, no...

SMERCONISH:  Look, I want to be fair to you, but I‘ve got to bring in Steve Emerson. 

BERGER:  These firefighters—we‘re talking about first responders. 

You talked about believing the sheriff on the border. 

(CROSSTALK)

BERGER:  What about the firefighters who have asked for their day and their hearings? 

SMERCONISH:  Steve Emerson, come in here and bring some sanity to my conversation.  How are you, my friend? 

STEVE EMERSON, TERRORISM ANALYST:  Hi, Michael. 

SMERCONISH:  I mean, is this just part and parcel of a major catastrophe? 

EMERSON:  Listen, in any catastrophe, you‘re going to have sometimes irreconcilable statements because people‘s memories aren‘t exactly accurate, you know, they don‘t reconcile each other all the time.  They don‘t confirm each other. 

However, in the statements that this man just made, I can tell you, one, that FEMA definitely, Federal Emergency Management association, definitely concluded that the World Trade Center Building Number Seven collapsed because of the collapse of Number One. 

As far as the Pentagon, there were 100 forensic specialists and others identified—or who identified 184 of the 189 people aboard.  Look, this is the Oliver Stone theory of politics. 

SMERCONISH:  But, Steve, here‘s what‘s scary, man:  42 percent, according to Zogby, are buying into some of this. 

EMERSON:  Well, I don‘t know how that question was raised.  Look, people are always going to—there‘s always a suspicion of power, of concentrated power.  There‘s a suspicion of government.  There‘s always a question of cover-ups.  The fact of the matter is that the Kennedy commission—the Warren Commission never adequately investigated the Oswald theory.  However...

SMERCONISH:  And, by the way, are you standing in the Grassy Knoll right now?  I see a man with an umbrella moving up and down behind you.

I‘ve got to roll, but I appreciate you being in SCARBOROUGH COUNTRY.

EMERSON:  Got it. 

SMERCONISH:  Steve Emerson, as always.

When we come back, “Must See SC” featuring tomato wars.  Stay with us.

(COMMERCIAL BREAK)

SMERCONISH:  Welcome back.  It‘s time for tonight‘s “Must See SC,” some video you‘ve got to see.  Up first, some incredible Coast Guard video out of California.  This Coast Guard crew was performing a mock rescue operation.  All of a sudden, they got a call about a real rescue that they needed to respond to. 

A single-engine plane went down a couple of miles away.  The Coast Guard ended the mock exercise, headed to San Francisco Bay, and saved the life of the pilot of that plane, all in day‘s work.  Next effort.

Next stop, Colombia, where hundreds of residents turned out in the town square to pelt each other with tomatoes, or is it “tomah-toes”?  The event is modeled after similar festivals held in France and Spain.  The village holds the festival every year to boost tourism and increase—you guessed it—tomato sales.

And finally, apparently the folks over at Brown University have a little too much time on their hands.  They created this larger than life Tetris game on the face of the college‘s science building.  The display isn‘t functioning anymore, but when it was, bystanders could swing by and use a custom built game controller to play that old, classic game. 

We‘ll be right back with the results of tonight‘s live online poll.

(COMMERCIAL BREAK)

SMERCONISH:  The results are in from our live SCARBOROUGH COUNTRY poll.  Remember, we asked:  Should the D.A. drop the charges in the Duke lacrosse rape investigation?

And take a look at the voting:  82 percent said yes; 18 percent said no. 

Speaking of the Web, we want to hear and see you.  If you‘ve got something to say, get in front of your computer and air it out on your Web cam, and then e-mail it to Joe@MSNBC.com

That‘s all the time we have for tonight.  I‘m Michael Smerconish, sitting in for Joe.  Rita Cosby “LIVE & DIRECT” starts right now.

Hey, Rita.

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

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