updated 6/21/2006 11:13:22 AM ET 2006-06-21T15:13:22

Guests: Paul Rieckhoff, Ilario Pantano, Juan Jose Gutierrez, Avery Friedman, Elizabeth Kelly, Tara Conner, Jennifer Berman

MICHAEL SMERCONISH, GUEST HOST:  Right now in SCARBOROUGH COUNTRY: Two U.S. soldiers brutally tortured and murdered in Iraq.  How should America respond?  And I want to know why are all those critics of so-called American torture not speaking out about the torture of our guys today?  Also, more judges gone wild in Ohio, where an accused rapist is free tonight after a judge throws out the case because the prosecutor was late to court.  And the judge still says she did the right thing.  We‘ll get to that unbelievable story.  And the truth behind the beauty—a new documentary goes inside the Miss USA pageant.  It‘s an excuse for us to have on the program the new Miss USA herself.  And we‘ve got an expert who says beauty pageants are bad for little girls.  I think she means except for the pretty ones.

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

Thanks for being here.  I‘m Michael Smerconish, in again tonight for the big guy, who‘s still feeling under the weather.  We start with new details in the brutal murder of two American soldiers in Iraq.  In a moment, reaction right here in studio from an American hero and one of the most recognizable faces of the Iraq war.  He‘s going to tell us firsthand what a hellish nightmare Iraq can be.

But first: A militant Islamic Web site claims the new leader of al Qaeda in Iraq personally carried out the killings of two soldiers found dead in Baghdad last night.  Those bodies showed signs of torture.  They were killed in a, quote, “barbaric” way, and American troops had to literally fight their way to the bodies, which were booby-trapped with explosives.

It‘s a horrific story, and as I watch it unfold, I have to ask myself where are the people who worked themselves into a lather about the naked pyramid pictures at Abu Ghraib or those who wanted trials at The Hague because we played Christina Aguilera music a bit too loud for the detainees down at Gitmo.  Tonight in America, some are no doubt sitting in barcaloungers kvetching over which American soldiers will next be put on trial for alleged war atrocities, and meanwhile, these dirtbags—they‘re thinking about whose head they want to chop off next.

Joining me tonight, Lt. Ilario Pantano, an Iraqi war veteran who faced murder charges himself and the death penalty over the death of two Iraqi citizens.  He was cleared, and he‘s just written “Warlord: No Better Friend, No Worse Enemy.”  We‘ll talk in a moment with him about that explosive new book.

But right now, Lt. Pantano—and by the way, welcome to SCARBOROUGH COUNTRY.  We‘re privileged to have you here.

LT. ILARIO PANTANO, AUTHOR, “WARLORD”:  Thank you for having me. 

Thank you.

SCARBOROUGH:  You think that this was a failure for Iraq.  Why?

PANTANO:  Well, no, let me qualify that.  I think it was a failure for

the terrorists.  And certainly, my deepest sympathies go to the family of

our heroes that were lost in this tragedy.  But if you consider the amount

of resources that al Qaeda clearly put against a very well-plotted attack,

diversionary attacks, dozens of men attacking, ultimately, and the loss of

ultimately, of three heroes in a tragic way, they‘ve lost three dead—they had a dozen wounded.  They had two dozen captured.  And then very quickly, the coalition swooped down, locked down Yusufiyah, and they never really were able to take control and whisk these guys away.

So in fact, I think the coalition responded quite well, under the circumstances.  And I think that given all of the resources they committed, they weren‘t as effective as they would have hoped to have been.

SMERCONISH:  No doubt this was the response to the death of Zarqawi.

PANTANO:  Absolutely.  This was an effort to suggest that al Qaeda in

Iraq is still vibrant.  But I would again suggest that the limited success

and again, a terrible tragedy, but it‘s tragic when we lose a soldier in an IED.  It‘s tragic when we lose a soldier falling off of an aircraft carrier.  But these things happen.  This is war.  But again, a limited success.

SMERCONISH:  Lt. Pantano, I want you to hear what Ken MacKenzie, the uncle of Army Private First Class Kristian Menchaca, had to say this morning on the “Today” show.  Give a listen.

(BEGIN VIDEO CLIP)

KEN MACKENZIE, UNCLE OF MURDERED SOLDIER:  The U.S. government was too slow.  They should have had a plan in place.  And because the U.S.  government did not have a plan in place. my nephew has paid for it with his life.

(END VIDEO CLIP)

SMERCONISH:  The fault of the U.S. government for not having a plan?

PANTANO:  I think that that is the grief of a family member who‘s lost someone very dear to them.  I think that there‘s an element of shock that comes with the grief in this very close period of time.  I think he‘ll, in time, be more comfortable with what his emotions and what his sense about what happened.  I think it‘s inappropriate to suggest it‘s the government‘s fault.  I think that our servicemen take a risk when they‘re on the ground in Iraq.  We all know that.  We all signed up for it.  And the biggest risk certainly is what might happen in the event of capture.  The biggest nightmare for any battlefield commander...

SMERCONISH:  Let me bring in another Iraqi war veteran, Lt. Paul

Rieckhoff, the author of “Chasing Ghosts.”  Lieutenant, the family reaction

it sounds like a line directly from your book.

LT. PAUL RIECKHOFF, AUTHOR, “CHASING GHOSTS”:  Well, I don‘t know.  I think that what we‘re seeing is grief.  And my heart goes out to the families, as well, and I think this man is entitled to his opinion, as much as any other American, if not more.  I know he‘s going through a very difficult time.

And to be honest with you, I‘m a little shocked with how quickly the press jumps all over the families.  You know, I thought they‘d give them a little more time to grieve.  It seems like as soon as a troop dies in Iraq, the media is waiting right outside with a camera truck.  And I think we need to give these people time to grieve and respect the sacrifices of that day (ph) and their members have made.

SMERCONISH:  Lt. Rieckhoff, is it a failure to plan that you believe is partly responsible for these sort of atrocities when our guys are the victims?

RIECKHOFF:  I don‘t think so.  I think he was alluding to the fact that he felt there wasn‘t a comprehensive plan to try to maybe negotiate with the terrorists.  He talked about trying to give up some Iraqi prisoners in exchange for his nephew.  You know, so he‘s talking about the plan.  I didn‘t see him talking about the overall planning of the war, which I think is something different.  I think Ilario‘s right, this is an element of war.  It‘s a brutal environment over there.  We both saw it personally.  And this is the nature of the enemy we‘re dealing with.

SMERCONISH:  Then does it strike the two of you as a double standard, the way that it strikes me as a double standard, that, you know, we have—and I‘m not explaining it away or defending it, but when all of a sudden, down at Abu Ghraib, we had a naked pyramid, and folks are calling for, you know, war crime investigations—and we‘re going to get to, Lt. Pantano, what you had to go through.  And yet the world community, the Muslim community—silent tonight, given these atrocities.

PANTANO:  We see a double standard not just, you know, abroad, and we‘ve seen that for some time, but we see it here in the United States, as well.  There are certainly those that are very quick to bash our efforts abroad.  And sadly, sometimes they‘re politically incentivized to do so.

I‘d actually would like to jump on a point that Paul made, and I completely agree with him.  Having the cameras in the face of these grieving families, as this kind of quick vent and outlet, is actually not really appropriate.  I think that it‘s appropriate to give them the time to grieve in private.  I think that, again, death is a sad tragedy and reality of combat, but al Qaeda, more than anybody, recognizes the role that the media plays in that.  To the extent that even Zawahiri, the number two, would say that this battle‘s fought in the media, we give them the weapons system.

SMERCONISH:  Lt. Rieckhoff, a double standard from your perspective, in terms of the way the world seems to react to these atrocities in war?

RIECKHOFF:  To some extent, but I think it‘s in part because we hold ourselves to a higher standard.  The American military and the American public expect higher standards.  We do adhere to the Geneva convention.  We do adhere to the laws of war.  We operate by standard rules of engagement.  And what I saw on the ground is that our enemy often doesn‘t.  So we‘re dealing with two very different standards here, and I think we want to continue to uphold the higher standards that we set forward.  That‘s ultimately how we‘re going to win this battle of ideas and how we‘re going to win people‘s hearts and minds around the world is to show them that Americans aren‘t barbaric.  We don‘t cut people‘s heads off, and this is not how we operate.

SMERCONISH:  Lt. Paul Rieckhoff, thank you for your service.  Thank you for being on SCARBOROUGH COUNTRY.  We appreciate it very much, and best of luck with your new book.

RIECKHOFF:  Thank you, sir.

SMERCONISH:  Lt. Pantano, a few moments won‘t do justice to your story, but let‘s take the best shot that we can.

PANTANO:  Sure.

SMERCONISH:  A product of a rough environment, beneficiary of going to some good schools.  When you graduated from those good schools, you did something a little different, in terms of a career path, from your colleagues.  You decided to become a United States Marine.  Why?

PANTANO:  Well, I felt from a very young age I was drawn to the chivalric ideal.  In my estimate, the Marine Corps represented that, the ethos of the noble warrior, and that was something very appealing to me.

SMERCONISH:  You served four years.  You‘re a war veteran of Desert Storm.  September 11, your hair was a bit longer than it is today.  It affected you.  They say that the first thing that you did was go and get a crewcut.

PANTANO:  I knew right away that our country had been attacked.  I was fit enough.  I had some experiences that I felt would be relevant.  And I felt that I had the potential to save lives...

(CROSSTALK)

SMERCONISH:  By now, you‘re married.  You‘re working on Wall Street. 

You‘re bringing in a terrific income, and yet you still wanted to serve. 

You‘re 30 years old at the time.

PANTANO:  I don‘t think I had a choice.  I think most Americans felt like they needed to do something in that moment in time.  And I know what I needed to do, and I knew what I was capable of providing.

SMERCONISH:  April 15, 2004, what happened?

PANTANO:  Well, the short of it is we got information about a possible hostage situation.  This is the heat of the insurgency, at this point.  We‘d just had contractors hanging from a bridge.  And we were conducting a raid based on a map that was drawn by locals, saying that terrorists had taken over our home.  In the process, two men were fleeing.  We had them stopped.  We began searching their vehicle.  We were searching the house.  We recovered material related to al Qaeda, Osama bin Laden DVDs, weapons systems, flare guns.  In the process of having the men re-search their vehicle, they attacked me, and I killed them both.

SMERCONISH:  They say that you reloaded in the process unnecessarily. 

That was one of the charges made against you.

PANTANO:  It was.  And you know, and sadly, not every American has a full context.  Not even every officer has a full context for...

SMERCONISH:  Well, help us understand.

PANTANO:  ... how violent...

SMERCONISH:  You know, I mean, tonight‘s headline—we‘re trying to understand in middle America exactly what went on over there and what could the context have been that would bring out such atrocities, even in wartime.  You‘ve been there.  You‘ve been on the front line.  You yourself charged with murder.

PANTANO:  I‘ll help you understand.  I think nobody would have expected to take two 500-pound bombs to kill Zarqawi in a house, and then afterwards, he still lived for almost an hour.  Sometimes the amount of force that you have to apply isn‘t the amount that might make you pale in social circumstances, it‘s the amount required to do the job.  And sadly, war is an ugly business, and we can‘t be afraid of that.

SMERCONISH:  You killed two individuals that you believed to be part of the insurgency.  You weren‘t immediately charged with murder.  There was a passage—help me with this—of six or seven months.  Why...

PANTANO:  In fact, yes, the investigation was launched several months afterwards, and then I was charged almost a year later.

SMERCONISH:  One of the other issues in your trial, your five-day trial, at which you were exonerated, is that you placed some kind of sign or a placard...

PANTANO:  Right.

SMERCONISH:  ... on the car where you killed the two insurgents.  What did it say, and why?

PANTANO:  It said, “No better friend, no worse enemy.”  And that, of course, is the mantra not just of the Marine Corps, but in many ways, of America at large.  To the extent that our tax dollars go to building schools and we sacrifice our lives to help you rebuild, we want to be your friend.  To the extent that you turn on us, to the extent that you would kill your children just to humiliate us, to the extent that you would attack us, you will be no worse enemy.

SMERCONISH:  Are you angry at the Marine Corps for having been prosecuted for murder, having faced a death penalty at one point yourself?

PANTANO:  You know, I‘ve had a couple of guns put in my face over my life, and this certainly was tragic for me.  I love the Marine Corps very much and I still do.  You know, having the ability now, a year later, to say, Listen, I have the scars to prove the system works, I have the scars to prove that every allegation is taken very seriously, I‘m in a position now to suggest the Marine Corps doesn‘t cover things up.  They do the right thing when nobody‘s looking, I‘m living proof of that.

SMERCONISH:  Your mother played a critical role, I know, in the public relations effort that I was proud to play a small part of on your behalf.  Speak about the role of...

PANTANO:  Well, she did, indeed...

(CROSSTALK)

PANTANO:  And I think that her story, which is, of course, one of the stories of the book, you know, between her and my wife, two women that played very prominent roles in my defense, you know, we see the way an American—the mother of a service member can take a stand and be supportive of the troops‘ efforts.  We‘ve seen other mothers take stands that have been damaging to the troops‘ efforts, even, you know, consorting with enemies of our country.  My mother was trying to do something that wouldn‘t damage the military but that would embolden our troops and let them know they were supported.

SMERCONISH:  Before we let you go, I need you to respond to another Marine, Congressman Jack Murtha.  And I want to play this for you and have you comment on what he had to say.

PANTANO:  Please.

(BEGIN VIDEO CLIP)

REP. JACK MURTHA (D), PENNSYLVANIA:  There was no firefight.  There was no IED that killed these innocent people.  Our troops overreacted because of the pressure on them, and they killed innocent civilians in cold blood.

(END VIDEO CLIP)

SMERCONISH:  To put that in context, he‘s commenting on Haditha.  Your reaction, having been on the front line, Lt. Pantano, to the allegations relative to Haditha?

PANTANO:  I find it really unfortunate that a former Marine would bank (ph) on the backs of other Marines to try and make some of kind of political hay or get political currency out of what is obviously a tragic event.  Even later in that interview, he admitted he hadn‘t even read the investigation when he made some inflammatory comments.  And those comments serve to inflame not just Americans, as they‘re wondering where they need to fall in this war, but certainly, our enemies abroad.  And this becomes ammunition for them.

The investigation had not—it‘s still, in fact, not completed yet.  So how can he be so certain not just that crimes were committed, but even of what the motives were?  I would suggest, again, as somebody who‘s lived through it, to allow the system to work its course and not seek political advantage through tragedy.

SMERCONISH:  Lt. Ilario Pantano, privileged.

PANTANO:  Thank you very much.

SMERCONISH:  Thanks for your service.  Appreciate it.

PANTANO:  Thank you.

SMERCONISH:  Congratulations on “Warlord: No Better Friend, No Worse Enemy.”

Up next: Geno‘s Steaks, home of the “speak English only” policy, is being attacked as racist.  I eat there all the time, and I say, If you don‘t like it, you can go across the street.  And this judge let a suspected child rapist go free.  Why?  Because the prosecutor was late to court.  The verdict is in on this unbelievable story.  Stick around.

(COMMERCIAL BREAK)

SMERCONISH:  Time for another “Flyover” of SCARBOROUGH COUNTRY.  First stop, Amarillo, Texas, home of the super-speller Caitlin Campbell.  Caitlin placed eighth at the National Spelling Bee earlier this month.  Her home town is so proud of her that it commissioned this billboard that reads, “Congratulations, Caitlin Cambell, for making Amarillo proud.”  There‘s just one problem.  They misspelled Campbell, leaving out the P.  The billboard company says they‘ll make the changes.  Maybe they should have hired Caitlin to be the copy editor.

Next stop is Cumming, Georgia, where mom‘s apple pie is banned from the local schools.  The PC hall monitors are at it again, and this time, they‘re targeting the bake sale.  The school board voted to ban homemade goodies from school parties.  Students can still bring store-bought treats to celebrate birthdays and holidays.  School officials say the ban is necessary to protect kids with allergies.  So much for baked with love.

And finally, Schodack, New York, where Goomba‘s (ph) is creating quite a stir.  No, “The Sopranos” haven‘t moved upstate.  Goomba‘s is the name of a new local pizza joint sure to be a hit with Tony and friends.  But members of the local planning board say the name is offensive to Italians and should not be on a sign in town.  Not everyone in town thinks the name such a bad idea.  The owner points out “goomba” means mentor or friend.  Maybe this restaurateur needs a few goombas on the planning board.

Now to our “Showdown” tonight.  As the immigration debate heats up, an English-only movement is sweeping across America, and politicians are zooming in.  United States Senator Rick Santorum, the Republican from Pennsylvania, who‘s in a tight race for reelection, stopped by Geno‘s Steaks in my home town, Philadelphia, yesterday and threw his support behind the owner, who‘s posted a sign that reads, “This is America.  When ordering, speak English.”

Santorum said, “It makes all the sense in the world to have a sign like this.  There‘s not really an extensive menu here.  I mean, come on.  It‘s cheese steaks.  It‘s not that hard.”

Hotspots are flaring up across the U.S., where some local governments are adopting English-only policies.  In Utah, where English is already the official language, the state announced Monday they‘re not publishing voter information in Spanish anymore.  In Hazelton, Pennsylvania, an ordinance proposed by the city‘s mayor would establish English as that city‘s official language.  And of course, the Senate immigration bill that passed last month includes an amendment that would make English the national language.

Tonight, the question is, so what?  This is America, right?  Now, with regard to Geno‘s, some full disclosure.  Philly is my home town.  I‘ve been eating at Geno‘s Steaks for the last probably 20 years.  I think I‘ve got three inches of my waist to show for it.  And I believe that Joe Vento, the owner, has a right to put a sign in the window that says, Speak English.  He also has the right to offend you.  And if you don‘t like it, you can walk across the street and eat a cheese steak at Pat‘s.  As a matter of fact, some people think they have an equally good cheese steak.  I don‘t happen to be one of them.

But the point is this.  The market can handle this without any government intervention, and it‘s ridiculous for Geno‘s to be on the receiving end of a complaint of discrimination.

Of course, not everyone agrees.  Joining me now is Juan Jose Gutierrez, director of Latino Movement USA.  Juan, what do you think about Geno‘s policy requiring customers to speak English when they order?

JUAN JOSE GUTIERREZ, DIR., LATINO MOVEMENT USA:  Totally uncalled-for.  It‘s part of the growing wave of anti-immigration hysteria.  It smells of outrageous racism.  And the reason why I say that is because this man is not being discreet about his belief that, as far as he‘s concerned, anybody that goes into his business ought to be able to order food in English.

In the larger context, I think that although, you know, strictly speaking, you know, he‘s not saying that everybody ought to know a lot of English, you know, by the mere fact that he feels compelled to advertise his preference that customers speak English, otherwise they won‘t get served and explain this very visibly on the windows, I suppose, of his business, he‘s basically making the point that it‘s high time to continue to advertise his anti-immigrant feelings.

SMERCONISH:  But Juan, he‘s not denying service to anyone.  What—you know, he‘s saying, Hey, speak English.  But if you walk up there, and if in broken English, if in no English whatsoever, you point through the glass and you say, you know, “Uno of one those,” he‘s going to serve you a cheese steak.  I mean, aren‘t you concerned that if this is prosecuted as a claim of discrimination—and that‘s what‘s going on in Philadelphia right now—then real cases of discrimination aren‘t going to be taken as seriously because people like me are going to say, you know, Where‘s the beef in this case?

GUTIERREZ:  Well, look, you know, the point is this.  I mean, everybody keeps talking about how all immigrants are welcome into this country, as long as they come in legally.  So for example, if you come from Germany as a tourist and can‘t speak a word of English, you‘re not welcome at Geno‘s place of business.  I mean, to me, that smells of discrimination.

SMERCONISH:  But here‘s the beautify of it...

GUTIERREZ:  Now, Geno‘s...

(CROSSTALK)

SMERCONISH:  The beauty is you can go across the street and you can...

GUTIERREZ:  That‘s right.

SMERCONISH:  ... eat a cheese steak at Pat‘s.  So my point is, why can‘t the private sector sort this out?  Why does every alleged in indiscretion become cause for government intervention?  You don‘t like what Joe Vento says at Geno‘s, walk across the street and get one at Pat‘s.

GUTIERREZ:  Well, yes.  On the face of it, your argument seems to make a lot of logical sense.  On the other hand, what if somebody else decides put in his business or anyplace else, you know, that people with blond hair are not going to be served?  You know, you better go get your hair dyed.  I mean, you know, at what point have you stepped over the line?  And I think that with the kind of history that America has and is struggling against, all this, you know, history of discrimination and racism, I mean, you know, people ought to be sensitive and careful about the kind of stuff that they throw in to the social (INAUDIBLE)

SMERCONISH:  The concern that I have is that if you go after Joe Vento

and I‘m going to let you hear in a moment what he had to say.  But if you go after him for discrimination, then when that other restaurateur does deny service and there‘s a claim of discrimination, people are going to say to themselves, Well, we heard this before.  Remember that bogus complaint against Geno‘s?  In other words, keep your powder dry for real cases of discrimination.

Here‘s what I want you to hear.  This is the owner of Geno‘s, Joey Vento, good American, a patriot, as far as I‘m concerned.  And this is why he says he put up the “English only” sign.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  Why?  Because cheese steak doesn‘t sound good in any language but English.  Now, that being said, that‘s where school ends.  Now you go home and go in your neighborhood with the people (INAUDIBLE) five or ten years, and you start (INAUDIBLE) English language that they should know, or they‘re playing dumb (INAUDIBLE) because it‘s very easy to say, No speak-a da English.”  We get a little tired of that.

(END VIDEO CLIP)

SMERCONISH:  All right.  Juan, your response is what, sir?

GUTIERREZ:  Well, you know, this sounds like an innocent statement by a business person who happens to love America.  But you know, if you scratch the surface, I think that, really, what this man is saying is a total disservice, you know, to the whole idea of what America is all about.  You know, I wonder what his grandmother would say.  You know, she obviously was an immigrant from Italy, and if she were here today and couldn‘t speak English, as I‘m sure she wasn‘t able to do when she first got off the boat right there on Ellis Island, I mean, she would be extremely offended.  And I think...

SMERCONISH:  But wouldn‘t you agree that...

GUTIERREZ:  ... that that‘s exactly what this man is doing.

SMERCONISH:  Wouldn‘t you agree that in order to succeed in this country, to get to the next rung on the ladder of socioeconomic progress, I mean, the first thing that someone should do is learn to speak English, and to speak it well, in the way that Joe‘s Vento‘s forefathers who came here from Italy learned how to speak English.  I mean, you‘re giving bad advice to someone who comes into this country...

GUTIERREZ:  No, no.

SMERCONISH:  ... if you say, Well, don‘t worry about learning English.”

GUTIERREZ:  No, no, no.  We don‘t know whether or not his great-grandmother or grandfather actually learned English.  You know, you‘re speaking as if you know that for a fact.  You know, but again—again, why is it that a business person, a smart person, you know, should go as far and to the extreme of actually making it an overt action on his part?

SMERCONISH:  Listen, one more thing...

(CROSSTALK)

GUTIERREZ:  ... advise people that in order to come into his place of business, you better speak English.  I mean, you know.

SMERCONISH:  Juan, one more thing.  You‘ve got to hear this.  And all of America has heard it before.  Here‘s what happens when you—you know, you call a company and they‘ve got one of those an automated prompts.  It drives me crazy!  Listen to this.

(BEGIN AUDIO CLIP)

COMPUTERIZED VOICE:  To continue in English, press 1.  This service is also available in Spanish.  (speaks in Spanish)

(END AUDIO CLIP)

SMERCONISH:  I mean, are you kidding me?  Juan, if you make it so easy for someone in this country that you‘re now going to have dual languages in a phone prompt, and we‘ve all heard them—utility companies, airlines, everybody—these folks will never learn English.  And who‘s going to suffer?  They will~!  Bottom line.  You have 10 seconds.

GUTIERREZ:  No, no.  Obviously, if you want to succeed in America, you better learn English.  But I think that, you know, to make a big deal out of the fact of something that‘s been going on in America for a long, long time, which is to make services available in a language that people can understand clearly, and to go out of your way to tell those people that—you know, that they will simply not get served at a restaurant, and then from there, you go on to government services, et cetera, et cetera—I think that you‘re doing a disservice to America...

SMERCONISH:  All right...

GUTIERREZ:  ... because there are many people who only speak English, who are defending this country valiantly and courageously, and some of them don‘t speak English very well, but...

SMERCONISH:  Appreciate it.

GUTIERREZ:  ... you know, but they‘re willing to...

SMERCONISH:  Got to run.  I want to make clear.

GUTIERREZ:  ... give their life for this country.

SMERCONISH:  He‘s not denying service.  He‘s just saying, Speak English, and he‘ll still serve you, even if you don‘t speak English.  Come to Philly.  I‘ll buy you a cheese steak at Geno‘s.  Thank you, Juan Jose Gutierrez.

And by the way, we want to know what you think.  Should U.S.  businesses be able to require customers to speak English?  Go to joe.msnbc.com and vote in our live poll.  We‘ll have the results at the end of tonight‘s show.

Coming up: Better late than never?  Tell that to a judge in Ohio who dismissed child rape charges because the DA was late to court.  The judge says she made the right decision.  What?  In a few moments: Is that worth putting an accused rapist back on the street?

And still to come, the drama behind the glitz and glamor of beauty pageants.  We‘ll talk live to the new Miss USA and a guest who says pageants hurt little girls.  Come on!

(COMMERCIAL BREAK)

(NEWSBREAK)

SMERCONISH:  We go behind the scenes of the Miss USA Pageant to find out if beauty pageants have more Cinderella stories or catfights.  My guess is the latter. 

And what happens when a man having a midlife crisis honks his horn at an old lady?  We‘ll find out in tonight‘s “Must See SC.”

Welcome back to SCARBOROUGH COUNTRY.  Those stories in just minutes.

A stunner out of Ohio tonight, where a suspected rapist is walking free.  And here‘s the story.  You‘re not going to believe this.  A nine-year-old girl was allegedly raped by a neighbor seven years ago.  She finally summons the courage to tell the authorities what happened, and Norman Allen Craig is ready to be tried for the alleged crime. 

But when the prosecuting attorney is late to court, Judge Eileen Gallagher throws out the case and allows the alleged rapist to go free.  The girl‘s mother understandably outraged. 

(BEGIN VIDEO CLIP)

MOTHER OF ALLEGED VICTIM:  I want to go for his jugular.  I really do.  Even if he‘s found not guilty, he‘ll never be free, because he knows what he did.  And what Eileen Gallagher did, it‘s reprehensible. 

(END VIDEO CLIP)

SMERCONISH:  Prosecuting attorney Mark Schneider also expressed anger at the judge, who he claims is biased against the little girl.

(BEGIN VIDEO CLIP)

MARK SCHNEIDER, PROSECUTING ATTORNEY:  If I‘m tardy, the judge can inquire into why I‘m tardy.  But before determining anything about the case, the judge just dismissed the case and left this girl out to dry. 

(END VIDEO CLIP)

SMERCONISH:  Now, tonight, on “THE ABRAMS REPORT,” Judge Gallagher said that she did try to find Schneider and offered this explanation to the alleged victim on why she threw out the case. 

(BEGIN VIDEO CLIP)

JUDGE EILEEN GALLAGHER, PRESIDING JUDGE:  It‘s not my responsibility to advocate for her.  My job is to make sure that a fair and impartial trial is conducted. 

(END VIDEO CLIP)

SMERCONISH:  Look, I don‘t know if this guy committed the rape.  I‘ll leave that for others to decide.  Hopefully a jury will get to hear this case.  But I‘m ready to render my verdict on Judge Gallagher:  guilty of pomposity. 

Joining me to talk about it, Cleveland criminal defense attorney Elizabeth Kelly and civil rights attorney and law professor Avery Friedman. 

Welcome to SCARBOROUGH COUNTRY.  It‘s a privilege for us to have you here. 

AVERY FRIEDMAN, CIVIL RIGHTS ATTORNEY:  Nice to see you, Michael. 

SMERCONISH:  Thank you.  Elizabeth Kelly, you defend the actions of this judge? 

ELIZABETH KELLY, CRIMINAL DEFENSE ATTORNEY:  I do.  As in every situation, there are two sides to every story.  The prosecutor was not five minutes late; he was 45 minutes late.  And as Judge Gallagher told us early tonight on “THE ABRAMS REPORT,” she and her bailiff made repeated attempts to have him paged.  They tried to reach him on his cell phone, and he was absolutely not available. 

And the prosecutor claims that the judge said that the alleged victim was not credible and, based on that, he wanted to get the judge removed.  Well, the judge made that remark supposedly back in November.  If the prosecutor was so angry about this, he should have filed over six months ago to have her removed. 

SMERCONISH:  But why not just sanctions?  I mean, why penalize the alleged victim of a rape?  You say, well, he was 45 -- what if you were 45 days late?  I mean, big deal.  Sanction him, but don‘t throw out the case. 

KELLY:  Any trial attorney will tell you that we would rather have our heads cut off than show up late for a trial, particularly 45 minutes late for a trial.  And as the judge has told people, she did not penalize the victim.  The prosecutor‘s office is still able to re-indict Mr. Craig if they so choose.

SMERCONISH:  But why should they have to go through that? 

Avery Friedman, come on, I know you keep your fingers on the pulse of everything that moves in Cleveland, so you tell me, what‘s the real story here?  Because I know there is one. 

FRIEDMAN:  I think it drips in politics.  The difficulty is that Ohio is one of the few states left, Michael, that elects their judges by popular vote.  So it doesn‘t really matter who the person is, whether they‘re qualified.  If you‘ve been practicing law five or six years, you can run for judge, and that what‘s happens.

But you know what?  I agree with you.  And we don‘t agree on a lot of things, but I‘ll tell you what.  The judge could have sanctioned this prosecutor, could have held them in contempt.  We‘re all lawyers.  You know about what this is like, Michael.  If you‘re late to court, there‘s a consequence to that. 

And to me it seems that, when you‘re dealing with such a sensitive issue, something serious happened here, Michael.  And it strikes me that make the prosecutor pay rather than the victim. 

SMERCONISH:  I‘ve got to agree. 

And, Elizabeth, I mean, it‘s the most heinous of crimes.  It‘s an alleged crime.  We don‘t know whether it actually occurred, but it‘s not a parking ticket.  Shouldn‘t that account for some response on the part of the judge to be more fair, more bending for this victim? 

KELLY:  You‘re right.  The charges against this particular defendant are horrible, but this particular defendant has been out on bond since September of last year.  He has shown up for every pretrial conference.  He showed up for court the morning in question, at 9:00 prepared for trial. 

The alleged victim, by the way, didn‘t show up until about 11:00 and, based on that, the judge had to continue the trial until 1:00 in the afternoon. 

SMERCONISH:  Avery Friedman, where does this go next?  I mean, it‘s not over, right?  Please tell me it‘s not over. 

FRIEDMAN:  Well, the prosecutor screwed up; they‘ll try to appeal. 

The fact is, it‘s going to go back to the grand jury.  Craig is going to be

re-indicted, and this case is going to trial. 

SMERCONISH:  And, by the way, I don‘t want to give the prosecutor a free pass in this circumstance. 

FRIEDMAN:  You‘re right.

SMERCONISH:  I mean, Elizabeth, you‘re right to be critical of the prosecution, and, Avery, you, as well.  It‘s inexcusable to be 45 minutes late for court, and we should be blaming the prosecutor, in a rape case, for being 45 minutes late.  But, for goodness sakes, you don‘t throw out the whole case.

KELLY:  And he was unavailable during that time.  And he was completely unavailable during that time. 

FRIEDMAN:  Well, he was preparing an appeal.  He should have been there.  There‘s no excuse.  He should have been there. 

SMERCONISH:  So I say sanction the prosecutor, get that case back on track.  We‘re not sure what happened, but give that victim her day in court.  Elizabeth Kelly and Avery Friedman, we appreciate very much you being on SCARBOROUGH COUNTRY.

FRIEDMAN:  Nice being with you.

KELLY:  Thank you.  It was a pleasure.

FRIEDMAN:  Take care.

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

RITA COSBY, HOST:  Hey, Michael.  Michael, we got an action-packed show, as always.  New details tonight in the search for sniper suspect Darren Mack.  Police found bomb-making materials, and they‘ve released his cell phone records.  Was he possibly planning an even more sinister plot?  We‘re going to have some new details.

Plus, we‘ll have on the man who discovered a key item that could prove that Olivia Newton John‘s boyfriend is really alive and staged his own disappearance.  And the countdown is on to our “American Idol” tour.  We‘re going to give you a sneak peek.  Plus, who is picking on Paula Abdul now?

Michael, we‘re going to have that and a whole lot more in just a few minutes from now.

SMERCONISH:  I have always had a soft spot for Olivia Newton John.  It goes all the way back to those “Grease” days.  Thank you, Rita.

Up next, a glimpse behind the sequins at the Miss USA Pageant.  Why I love America, but others say it‘s bad for little girls.  I think they should just get over it, when we all come back.

USA is going to be herself right here live, and you‘ll meet the next top finalists for “American Idol.”

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  ... and this is it.  And she told me you‘re going to make an awesome Miss USA. 

UNIDENTIFIED FEMALE:  And I told her, “Go Miss Universe.  Kick butt. 

Take names.”  And (INAUDIBLE)

UNIDENTIFIED FEMALE:  And in a funny way, I said, “OK,” like, “I know. 

(INAUDIBLE) 

UNIDENTIFIED FEMALE:  And the first runner-up is California.  And so Miss USA 2006 is Kentucky!

(APPLAUSE)

UNIDENTIFIED FEMALE:  I was shocked and, oh, my god, what just happened?

(END VIDEO CLIP)

SMERCONISH:  That was a clip from a new documentary called “Uncovered:

The Hidden Lives of Miss USA,” and it airs tomorrow night on the E!  Entertainment Network.  The special takes you behind the scenes of one of the world‘s most famous beauty competitions to find out what‘s happening backstage while the contest is playing itself out on television. 

Joining me now, this year‘s winner of the Miss USA contest, Tara Conner.  Welcome to SCARBOROUGH COUNTRY.

TARA CONNER, MISS USA 2006:  Thank you for having me. 

SMERCONISH:  So, cat fight or Cinderella story?  What are we going to get if we watch?

CONNER:  You know, the great thing about this story is it basically gives you a backstage pass to the behind the scenes completely of the good, bad, and the ugly.  For me, the Miss USA Pageant was a wonderful experience.  I didn‘t have catfights; I didn‘t experience any drama.  But there are some things that people don‘t see, that I necessarily didn‘t see.

And I watched this last night.  And it really shows you the true essence of the Miss USA Pageant.  It‘s a great, great thing. 

SMERCONISH:  Hey, Tara, you‘re Miss USA.  I mean, you‘re a hottie.  You‘re attractive, right?  Is it OK to refer to you as a beauty queen?  I mean, I hope that doesn‘t upset you to be referred as such.

CONNER:  You know, it doesn‘t upset me to be referred to as a beauty queen.  A lot of people have misconceptions when it comes to girls that are in pageants, but we are so much more than beauty queens. 

Miss USA or any Miss USA, especially myself, we are extreme advocates for breast cancer and ovarian cancer awareness.  We are spokeswomen.  You know, we are very talented, and we are very intelligent, and there‘s so much more to it than looks. 

SMERCONISH:  And I applaud you for that.  But I just want to make clear—and it‘s a pet peeve of mine.  I wrote about it.  Here‘s a shameless book promotion on my part.  But I wrote about in my book, “Muzzled.”

I think there‘s nothing wrong with referring to something like Miss USA Pageant as a beauty pageant.  I mean, you‘re an attractive woman.  Why should that be something that you always have to explain away?  Like, “Hey, I‘m involved in breast cancer research, as well.”  You‘re good-looking.  That‘s terrific. 

CONNER:  You know, it‘s always fine to say, you know, you‘re good-looking, but there is so much more to me than just looks.  I mean, I‘m one of the most realist people you‘ll ever meet.  I‘m very human, as well as—you know, I‘m a spokeswoman, like I said, for breast and ovarian cancer, and it‘s because of the misconceptions that people have is why we have to come out and let you know:  We are intelligence woman.

(CROSSTALK)

SMERCONISH:  All right, I‘ve got to ask you a question.  This is stunning to me.  Apparently, your roommates are Miss Universe and Miss Teen USA, and the three of you live in Trump Tower?

CONNER:  We all do live together. 

SMERCONISH:  Does the Donald, like, you know, middle of the night, come looking for a cup of milk or something? 

CONNER:  You know, that‘s so funny.

SMERCONISH:  I‘d lock the door. 

CONNER:  I get that a lot, but, no, Mr. Trump, he stays—you know, at home, I suppose, and we keep to ourselves.  It‘s funny, because we‘re usually not always there together, because we‘re always so busy.  Miss Universe, her official cause is HIV and AIDS, so she‘s always traveling worldwide.  And Miss Teen USA, of course, she‘s going all over the place, as well as myself. 

So we‘re never truly there together all the time, but it‘s pretty fun living together.  It‘s funny.

SMERCONISH:  Hey, there‘s another clip that we have from “The Hidden Lives of Miss USA.”  Let‘s take a look, and then you can comment.

CONNER:  OK.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Today of all days, it‘s just one of the worst. 

People don‘t really talk to each other. 

UNIDENTIFIED FEMALE:  People get these wild ideas.  Oh, they‘re going to clue the zipper of your dress, shut with super glue, or they‘re going to cut your dress, or they‘re going to steal your earrings, or they‘re going to break your shoe off.  There are security guards outside the dressing room (INAUDIBLE) we‘re not worried about the people on the outside.  We‘re worried about the girls in here. 

(END VIDEO CLIP)

SMERCONISH:  Are some of the beauty pageant parents, do they creep you out?  Because I defend these pageants, but there‘s a certain element—it‘s kind of like the people who go out and show their dogs, you know what I mean?  Like, they just spend too much time on these things. 

Are some of the parents just too intense on having their daughters compete? 

CONNER:  I think a lot of people take it very, very seriously.  But with anything that you get into, you have to go into it with the right spirit.  And I‘m very fortunate because my mother is always 100 percent behind me, and she knows that, when it‘s competition time and I‘m trying to make an impact and do my best, she takes a step to the side.  And she‘s always been—she‘s never pressured me into doing anything I‘ve never wanted to do, and she‘s supported me 100 percent in anything that I‘ve done. 

SMERCONISH:  Well, congratulations. 

CONNER:  Thank you so much.

SMERCONISH:  We‘re thrilled to have Tara Conner, Miss USA 2006, on

SCARBOROUGH COUNTRY. 

Let me bring in radio talk show host and relationship therapist Dr.

Jennifer Berman. 

Dr. Berman, welcome to SCARBOROUGH COUNTRY. 

JENNIFER BERMAN, RADIO TALK SHOW HOST:  Thank you.  Hi.

SMERCONISH:  Now, am I going to offend you?  I‘m looking at the monitor.  You are an attractive woman.  That‘s not offensive.

BERMAN:  But I‘m smart. 

SMERCONISH:  I know, you‘re doing brain surgery before you came on. 

But you‘re a hottie, too.  What‘s wrong with saying that? 

BERMAN:  No, there‘s nothing wrong with saying that, and I don‘t feel like I have to apologize for it, but you‘re obviously sensing that beauty is only skin deep and there is a lot more and a lot more that‘s important than how we look.

And, certainly, the media has exploited women, our bodies, the way we‘re supposed to look, the way we‘re supposed to dress, how thin we‘re supposed to be, and that does have an impact on young women and, for that matter, on teens. 

SMERCONISH:  You know, my mom is one of eight, eight sisters, three brothers, no TV in the house when they were growing up, as you can tell.  And I can remember as a young boy on the night of Miss USA, or Miss America, they‘d all be phoning one another, the women, the sisters, commenting on the beauty of the contestants. 

And my point is, Dr. Berman, it‘s not just guys who like to look at beautiful women.  Women love looking at beautiful women.  Why be embarrassed about that? 

BERMAN:  No, well, of course they are.  And Miss America was or is, you know, the America, the girl next door, the society‘s ideal of what an American woman should be.  And we‘re changing, our society is changing, and media ideals are changing.

And the question is:  Does this pageant or does the beauty pageant in and of itself represent that?  And what is the message that we‘re delivering to the viewers, the women, as well as young girls, if not men?  And focusing on the external characteristics of bodies, our breasts, our beauty without, you know, the spirit, as the prior Miss America said, her commitment to community service, her scholarly activities, all that is what defines a well-rounded woman.  And if she‘s beautiful on top of that, mazel tov.  More power to her. 

SMERCONISH:  All right.  I agree, and I applaud her for her good works.  But you‘re hot, she‘s hot, and that‘s good stuff, OK?

BERMAN:  Thank you.

SMERCONISH:  Thank you, Dr. Jennifer Berman. 

BERMAN:  Thanks.

SMERCONISH:  When we come back, “Must See SC.”  A guy tries to hurry up an old lady and gets a big surprise.  Now, stay with us. 

(COMMERCIAL BREAK)

SMERCONISH:  Time for tonight‘s “Must See SC,” some video you‘ve just got to see. 

Up first, nature‘s fury in Central America.  A storm thousands of miles away sent these enormous waves crashing into the Central American coast.  The waves destroyed property in four countries, from Peru all the way up to Mexico.  Residents there have been feeling the wrath of that storm for days now, sending waves up to 20 feet high. 

Next up, talk about bad karma coming back to bite you.  This guy got a big dose of it right in his face, literally.  This video comes from the Internet, so we can‘t exactly say for sure that it‘s real, but it‘s so much fun.  It appears the guy driving the Benz honks at an old lady crossing the street, so she proceeds to takes a swing at his car, exploding the air bag right in his face.  Can‘t say he wasn‘t asking for it. 

And finally, yet another jewel of the Internet.  Move over “American Idol.”  These guys are officially SCARBOROUGH COUNTRY‘s idols.  Enjoy. 

We‘ll be right back with the results from tonight‘s live Web poll. 

(COMMERCIAL BREAK)

SMERCONISH:  The results are in from our live SCARBOROUGH COUNTRY poll.  Remember, we asked:  Should it be legal for U.S. businesses to require their customers to speak only English?  Take a look at the voting: 

88 percent say yes; 12 percent say no. 

Got something to say?  We want to hear from you.  Get in front of your computer and air it out on your Web cam.  Then, e-mail it to Joe@MSNBC.com.  Keep it short; keep it clean.  And, parents, if you‘re not sure how to do it, just ask your teenager for help.

That‘s all the time we‘ve got for tonight.  I‘m Michael Smerconish. 

Thank you, Joe Scarborough, for this privilege.

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.

END   

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